G.R. No.

L-35748 December 14, 1931

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
ROMANA SILVESTRE and MARTIN ATIENZA, defendants-appellants.

Teofilo Mendoza for appellants.

Attorney-General Jaranilla for appellee.

VILLA-REAL, J.:

Martin Atienza and Romana Silvestre appeal to this court from the judgment of the Court of First Instance of
Bulacan convicting them upon the information of the crime of arson as follows: The former as principal by
direct participation, sentenced to fourteen years, eight months, and one day of cadena temporal, in
accordance with paragraph 2 of article 550, Penal Code; and the latter as accomplice, sentenced to six years
and one day of presidio mayor; and both are further sentenced to the accessories of the law, and to pay each
of the persons whose houses were destroyed by the fire, jointly and severally, the amount set forth in the
information, with costs.

Counsel appointed by the court to defend the accused- appellants de oficio, after delivering his argument,
prayed for the affirmance of the judgment with reference to the appellant Martin Atienza, and makes the
following assignments of error with reference to Romana Silvestre, to wit:

1. The lower court erred in convincing Romana Silvestre as accomplice of the crime charged in the
information.

2. Finally, the court erred in not acquitting said defendant from the information upon the ground of
insufficient evidence, or at the least, of reasonable doubt.

The following facts were proved at the hearing beyond a reasonable doubt:

Romana Silvestre, wife of Domingo Joaquin by her second marriage, cohabited with her codefendant Martin
Atienza from the month of March, 1930, in the barrio of Masocol, municipality of Paombong, Province of
Bulacan. On May 16, 1930, the complaining husband, Domingo Joaquin, filed with the justice of the peace for
that municipality, a sworn complaint for adultery, supported by affidavits of Gerardo Cabigao and Castor de la
Cruz (Exhibit B). On the same date, May 16, 1930, the said accused were arrested on a warrant issued by said
justice of the peace. On the 20th of the month, they were released on bail, each giving a personal bond of
P6,000. Pending the preliminary investigation of the case, the two defendants begged the municipal president
of Paombong, Francisco Suerte Felipe, to speak to the complaint, Domingo Joaquin, urging him to withdraw
the complaint, the two accused binding themselves to discontinue cohabitation, and promising not to live
again in the barrio of Masocol; Martin Atienza voluntarily signed the promise (Exhibit A). The municipal
president transmitted the defendants' petition to the complaining husband, lending it his support. Domingo
Joaquin acceded to it, and on May 20, 1930, filed a motion for the dismissal of his complaint. In consideration
of this petition, the justice of the peace of Paombong dismissed the adultery case commenced against the
accused, and cancelled the bonds given by them, with the costs against the complainant.

The accused then left the barrio of Masocol and went to live in that of Santo Niño, in the same municipality of
Paombong.

About November 20, 1930, the accused Romana Silvestre met her son by her former marriage, Nicolas de la
Cruz, in the barrio of Santo Niño, and under pretext of asking him for some nipa leaves, followed him home to
the village of Masocol, and remained there. The accused, Martin Atienza, who had continued to cohabit with
said Romana Silvestre, followed her and lived in the home of Nicolas de la Cruz. On the night of November 25,
1930, while Nicolas de la Cruz and his wife, Antonia de la Cruz, were gathered together with the appellants
herein after supper, Martin Atienza told said couple to take their furniture out of the house because he was

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going to set fire to it. Upon being asked by Nicolas and Antonia why he wanted to set fire to the house, he
answered that that was the only way he could be revenged upon the people of Masocol who, he said, had
instigated the charge of adultery against him and his codefendant, Romana Silvestre. As Martin Atienza was at
that time armed with a pistol, no one dared say anything to him, not even Romana Silvestre, who was about a
meter away from her codefendant. Alarmed at what Martin Atienza had said, the couple left the house at once
to communicate with the barrio lieutenant, Buenaventura Ania, as to what they had just heard Martin Atienza
say; but they had hardly gone a hundred arms' length when they heard cries of "Fire! Fire!" Turning back they
saw their home in flames, and ran back to it; but seeing that the fire had assumed considerable proportions,
Antonia took refuge in the schoolhouse with her 1 year old babe in her arms, while Nicolas went to the home
of his parents-in-law, took up the furniture he had deposited there, and carried it to the schoolhouse. The fire
destroyed about forty-eight houses. Tomas Santiago coming from the barrio artesian well, and Tomas
Gonzalez, teacher at the barrio school of Masocol, and Felipe Clemente, an old man 61 years of age, coming
from their homes, to the house on fire, saw Martin Atienza going away from the house where the fire started,
and Romana Silvestre leaving it.lawphil.net

As stated in the beginning, counsel appointed by this court to defend the accused-appellant de oficio, prays for
the affirmance of the judgment appealed from with reference to defendant Martin Atienza. The facts related
heretofore, proved beyond a reasonable doubt at the hearing, justify this petition of the de oficio counsel, and
establish beyond a reasonable doubt said defendant's guilt of arson as charged, as principal by direct
participation.

With respect to the accused-appellant Romana Silvestre, the only evidence of record against her are: That,
being married, she lived adulterously with her codefendant Martin Atienza, a married man; that both were
denounced for adultery by Domingo Joaquin, Romana Silvestre's second husband; that in view of the petition
of the accused, who promised to discontinue their life together, and to leave the barrio of Masocol, and
through the good offices of the municipal president of Paombong, the complaining husband asked for the
dismissal of the complaint; that in pursuance of their promise, both of the accused went to lived in the barrio
of Santo Niño, in the same municipality; that under pretext for some nipa leaves from her son by her former
marriage, Nicolas de la Cruz, who had gone to the barrio of Santo Niño, Romana Silvestre followed him to his
house in the barrio of Masocol on November 23, 1930, and remained there; that her codefendant, Martin
Atienza followed her, and stayed with his coaccused in the same house; that on the night of November 25,
1930, at about 8 o'clock, while all were gathered together at home after supper, Martin Atienza expressed his
intention of burning the house as the only means of taking his revenge on the Masocol resident, who had
instigated Domingo Joaquin to file the complaint for adultery against them, which compelled them to leave the
barrio of Masocol; that Romana Silvestre listened to her codefendant's threat without raising a protest, and
did not give the alarm when the latter set fire to the house. Upon the strength of these facts, the court below
found her guilty of arson as accomplice.

Article 14 of the Penal Code, considered in connection with article 13, defines an accomplice to be one who
does not take a direct part in the commission of the act, who does not force or induce other to commit it, nor
cooperates in the commission of the act by another act without which it would not have been accomplished,
yet cooperates in the execution of the act by previous or simultaneous actions.

Now then, which previous or simultaneous acts complicate Romana Silvestre in the crime of arson committed
by her codefendant Martin Atienza? Is it her silence when he told the spouses, Nicolas de la Cruz and Antonia
de la Cruz, to take away their furniture because he was going to set fire to their house as the only means of
revenging himself on the barrio residents, her passive presence when Martin Atienza set fire to the house,
where there is no evidence of conspiracy or cooperation, and her failure to give the alarm when the house was
already on fire?

The complicity which is penalized requires a certain degree of cooperation, whether moral, through advice,
encouragement, or agreement, or material, through external acts. In the case of the accused-appellant
Romana Silvestre, there is no evidence of moral or material cooperation, and none of an agreement to commit
the crime in question. Her mere presence and silence while they are simultaneous acts, do not constitute
cooperation, for it does not appear that they encouraged or nerved Martin Atienza to commit the crime of

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arson; and as for her failure to give the alarm, that being a subsequent act it does not make her liable as an
accomplice.

The trial court found the accused-appellant Martin Atienza guilty of arson, defined and penalized in article 550,
paragraph 2, of the Penal Code, which reads as follows:

ART. 550. The penalty of cadena temporal shall be imposed upon:

xxx xxx xxx

2. Any person who shall set fire to any inhabited house or any building in which people are
accustomed to meet together, without knowing whether or not such building or house was occupied
at the time, or any freight train in motion, if the damage caused in such cases shall exceed six
thousand two hundred and fifty pesetas.

While the defendant indeed knew that besides himself and his codefendant, Romana Silvestre, there was
nobody in De la Cruz's house at the moment of setting fire to it, he cannot be convicted merely arson less
serious than what the trial court sentenced him for, inasmuch as that house was the means of destroying the
others, and he did not know whether these were occupied at the time or not. If the greater seriousness of
setting fire to an inhabited house, when the incendiary does not know whether there are people in it at the
time, depends upon the danger to which the inmates are exposed, not less serious is the arson committed by
setting fire to inhabited houses by means of another inhabited house which the firebrand knew to be empty at
the moment of committing the act, if he did not know whether there were people or not in the others,
inasmuch as the same danger exists.

With the evidence produced at the trial, the accused-appellant Martin Atienza might have been convicted of
the crime of arson in the most serious degree provided for in article 549 of the Penal Code, if the information
had alleged that at the time of setting fire to the house, the defendant knew that the other houses were
occupied, taking into account that barrio residents are accustomed to retire at the tolling of the bell for the
souls in purgatory, i.e., at 8 o'clock at night.

For all the foregoing considerations, we are of the opinion and so hold, that: (1) Mere passive presence at the
scene of another's crime, mere silence and failure to give the alarm, without evidence of agreement or
conspiracy, do not constitute the cooperation required by article 14 of the Penal Code for complicity in the
commission of the crime witnessed passively, or with regard to which one has kept silent; and (2) he who
desiring to burn the houses in a barrio, without knowing whether there are people in them or not, sets fire to
one known to be vacant at the time, which results in destroying the rest, commits the crime of arson, defined
and penalized in article 550, paragraph 2, Penal Code.

By virtue wherefore, the judgment appealed from is modified as follows: It is affirmed with reference to the
accused-appellant Martin Atienza, and reversed with reference to the accused-appellant Romana Silvestre,
who is hereby acquitted with
one-half of the costs de oficio. So ordered.

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G.R. No. L-66884 May 28, 1988

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
VICENTE TEMBLOR alias "RONALD," defendant-appellant.

The Solicitor General for plaintiff-appellee.

Wilfred D. Asis for defendant-appellant.

GRIÑO-AQUINO, J.:

The accused-appellant Vicente Temblor alias "Ronald" was charged with the crime of murder in Criminal Case
No. 1809 of the Court of First Instance (now Regional Trial Court) of Agusan del Norte and Butuan City for
shooting to death Julius Cagampang. The information alleged:

That on or about the evening of December 30, 1980 at Talo-ao, Buenavista, Agusan del
Norte, Philippines and within the jurisdiction of this Honorable Court, the said accused
conspiring, and confederating with one another with Anecito Ellevera who is at large, did
then and there wilfully, unlawfully and feloniously, with treachery and with intent to kill,
attack, assault and shoot with firearms one Julius Cagampang, hitting the latter on the vital
parts of the body thereby inflicting mortal wounds, causing the direct and instantaneous
death of the said Julius Cagampang.

CONTRARY TO LAW: Article 248 of the Revised Penal Code.

Upon arraignment on June 8, 1982, he entered a plea of not guilty. After trial, he was convicted and sentenced
to suffer the penalty of reclusion perpetua, with the accessory penalties thereof under Articles 41 and 42 of
the Revised Penal Code, and to indemnify the heirs of the victim in the amount of P12,000 without subsidiary
imprisonment in case of insolvency. He appealed.

The evidence of the prosecution showed that at about 7:30 in the evening of December 30, 1980, while
Cagampang, his wife and their two children, were conversing in the store adjacent to their house in Barangay
Talo-ao, Buenavista, Province of Agusan del Norte, the accused Vicente Temblor alias Ronald, arrived and
asked to buy a half-pack of Hope cigarettes. While Cagampang was opening a pack of cigarettes, there was a
sudden burst of gunfire and Cagampang instantly fell on the floor, wounded and bleeding on the head. His wife
Victorina, upon seeing that her husband had been shot, shouted her husband's name "Jul" Two persons, one
of whom she later Identified as the accused, barged into the interior of the store through the main door and
demanded that she brings out her husband's firearm. "Igawas mo ang iyang armas!" ("You let out his
firearm!") they shouted. The accused fired two more shots at the fallen victim. Terrified, Victorina hurried to
get the "maleta" (suitcase) where her husband's firearm was hidden. She gave the suitcase to the accused
who, after inspecting its contents, took her husband's .38 caliber revolver, and fled.

In 1981, some months after the incident, Victorina was summoned to the Buenavista police station by the
Station Commander Milan, where she saw and Identified the accused as the man who killed her husband.

The accused's defense was an alibi. He alleged that from 4:00 o'clock in the afternoon of December 30, 1980,
he and his father had been in the house of Silverio Perol in Barangay Camagong, Nasipit, Agusan del Norte,
where they spent the night drinking over a slaughtered dog as "pulutan," until 8:00 o'clock in the morning of
the following day, December 31, 1980.

The accused and his companion, admittedly members of the dreaded NPA (New People's Army) were not
apprehended earlier because they hid in the mountains of Malapong with other members- followers of the
New People's Army. Temblor surrendered to Mayor Dick Carmona of Nasipit during the mass surrender of

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dissidents in August, 1981. He was arrested by the Buenavista Police at the Buenavista public market on
November 26, 1981 and detained at the Buenavista municipal jail.

The accused capitalized the fact that the victim's widow, Victorina, did not know him by name. That
circumstance allegedly renders the Identification of the accused, as the perpetrator of her husband's killing,
insufficient. However, during the trial, the accused was positively identified by the widow who recognized him
because she was less than a meter away from him inside the store which was well lighted inside by a 40-watt
flourescent lamp and by an incandescent lamp outside. Her testimony was corroborated by another
prosecution witness — a tricycle driver, Claudio Sabanal — who was a long-time acquaintance of the accused
and who knew him as "Ronald." He saw the accused in the store of Cagampang at about 7:30 o'clock in the
evening of December 30, 1980. He heard the gunshots coming from inside the store, and saw the people
scampering away.

Dr. Alfredo Salonga who issued the post-mortem examination report certified that the victim sustained three
(3) gunshot wounds.

Rebutting the accused's alibi, the prosecution presented a Certification of the Nasipit Lumber Company's
Personnel Officer, Jose F. Tinga (Exh. D), and the NALCO Daily Time Record of Silverio Perol (Exh. D), showing
that Perol was not at home drinking with the accused and his father, but was at work on December 30, 1980
from 10:50 o'clock in the evening up to 7:00 o'clock in the morning of December 31, 1980. The accused did not
bother to overcome this piece of rebuttal evidence.

In this appeal, the appellant alleges that the court a quo erred:

1. in finding that he was positively identified by the prosecution witness as the killer of the
deceased Julius Cagampang; and

2. in rejecting his defense of allbi.

The appeal deserves no merit. Was the accused positively Identified as the killer of Cagampang? The settled
rule is that the trial court's assessment of the credibility of witnesses while testifying is generally binding on
the appellate court because of its superior advantage in observing their conduct and demeanor and its
findings, when supported by convincingly credible evidence as in the case at bar, shall not be disturbed on
appeal (People vs. Dava, 149 SCRA, 582).<äre||anº•1àw>

The minor inconsistencies in the testimony of the eyewitness Victorina Vda. de Cagampang did not diminish
her credibility, especially because she had positively Identified the accused as her husband's assailant, and her
testimony is corroborated by the other witnesses. Her testimony is credible, probable and entirely in accord
with human experience.

Appellant's self-serving and uncorroborated alibi cannot prevail over the positive Identification made by the
prosecution witnesses who had no base motives to falsely accuse him of the crime. Furthermore, the rule is
that in order for an alibi to be acceptable as a defense, it is not enough that the appellant was somewhere else
when the crime was committed; it must be demonstrated beyond doubt that it was physically impossible for
him to be at the scene of the crime. Here it was admitted that Perol's house in barrio Camagong, Nasipit is
accessible to barrio Talo-ao in Buenavista by jeep or tricycle via a well-paved road in a matter of 15 to 20
minutes. The testimony of the witnesses who had positively Identified him could not be overcome by the
defendant's alibi. (People vs. Mercado, 97 SCRA 232; People vs. Venancio Ramilo, 146 SCRA 258.)

Appellant's alleged lack of motive for killing Cagampang was rejected by the trial court which opined that the
defendant's knowledge that Cagampang possessed a firearm was motive enough to kill him as killings
perpetrated by members of the New People's Army for the sole purpose of acquiring more arms and
ammunition for their group are prevalent not only in Agusan del Norte but elsewhere in the country. It is
known as the NPA's "agaw armas" campaign. Moreover, proof of motive is not essential when the culprit has
been positively Identified (People vs. Tan, Jr., 145 SCRA 615).

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JC ISIDRO
The records further show that the accused and his companion fled after killing Cagampang and taking his
firearm. They hid in the mountains of Agusan del Norte. Their flight was an implied admission of guilt (People
vs. Dante Astor, 149 SCRA 325; People vs. Realon, 99 SCRA 422).

WHEREFORE, the judgment appealed from is affirmed in all respects, except as to the civil indemnity payable
to the heirs of the Julius Cagampang which is increased to P30,000.00.

SO ORDERED.

Narvasa, Cruz, Gancayco and Medialdea, JJ., concur.

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G.R. No. L-68969 January 22, 1988

PEOPLE OF THE PHILIPPINES, petitioner,

vs.
USMAN HASSAN y AYUN, respondent.

SARMIENTO, J.:

This is a pauper's appeal of the decision 1 of the Regional Trial Court of Zamboanga City, Ninth Judicial Region
Branch XIII, dated January 25, 1984, which "finds the accused USMAN HASSAN y AYUN guilty beyond
reasonable doubt as principal of the Crime of MURDER, and there being neither aggravating nor mitigating
circumstance attending the commission of the crime, and pursuant to Paragraph No. 1 of Article 64 of the
Revised Penal Code, hereby imposes upon the said accused the penalty of RECLUSION PERPETUA and all its
accessory penalties; to indemnify the heirs of the deceased victim Ramon Pichel, Jr. y Uro the amount of
P12,000.00 and to pay the costs." 2

Usman Hassan was accused of murder for stabbing to death Ramon Pichel, Jr. y Uro, 24, single, and a resident
of Zamboanga City. 3 At the time of his death on July 23,1981, the deceased was employed as manager of the
sand and gravel business of his father. On the other hand, Hassan was an illiterate, 15-year-old pushcart
cargador. 4

The quality of justice and the majesty of the law shine ever brightest when they are applied with more jealousy
to the poor, the marginalized, and the disadvantaged. Usman Hassan, the herein accused-appellant, belongs to
this class. At the time of the alleged commission of the crime, he was poor, marginalized, and disadvantaged.
He was a flotsam in a sea of violence, following the odyssey of his widowed mother from one poverty-stricken
area to another in order to escape the ravages of internicine war and rebellion in Zamboanga del Sur. In the 15
years of Hassan's existence, he and his family had to evacuate to other places for fear of their lives, six times.
His existence in this world has not even been officially recorded; his birth has not been registered in the
Registry of Births because the Samal tribe, to which he belongs, does not see the importance of registering
births and deaths.

Usman was convicted on the bases of the testimony of a lone eyewitness for the prosecution and the
sloppiness of the investigation conducted by the police investigator, Police Corporal Rogelio Carpio of the
Homicide and Arson Section of the Zamboanga City Police Station, who also testified for the prosecution.

We rule that Usman Hassan's guilt was not proved beyond reasonable doubt and that Usman Hassan must,
therefore, be set free.

The lone eyewitness for the prosecution is Jose Samson, 24 years old when he testified, married, and a
resident of Zamboanga City. On the day of the killing, he was employed at the sand and gravel business of the
father of the deceased but was jobless at the time of his examination-in-chief on February 3, 1982.

He testified that he was with Ramon Pichel, Jr. at about 7:00 o'clock in the evening of July 23, 1981; that he
was a backrider in the motorcycle of Ramon when they went to buy mangoes at Fruit Paradise near the Barter
Trade Zone in Zamboanga City that while he was selecting mangoes, he saw a person stab Ramon who was
seated at his red Honda motorcycle which was parked about two or three meters from the fruit stand where
he Samson) was selecting mangoes; that he saw the assailant stab Ramon "only once" and that after the
stabbing, the assailant ran towards the PNB Building. When asked at the cross-examination if he knew the
assailant, Samson said, "I know him by face but I do not know his name." 5

This sole eyewitness recounted the stabbing thus: "While Ramoncito Pichel, Jr. was holding the motorcycle
with both of his hands, the assailant come from behind, held his left hand and stabbed him from behind on his
chest while the victim was sitting on the motorcycle." He claimed that he was able to see the assailant because
it was very bright there that Ramon was facing the light of a petromax lamp, and that all these happened in
front of the fruit stand a — distance of about 6 to 7 meters from the side of the road.

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JC ISIDRO
Samson described the assailant as wearing a white, short-sleeved t-shirt and maong pants, but "he did not see
if the aggressor was wearing shoes," that the assailant stabbed Ramon with a knife but "he did not exactly see
what kind of knife it was, and he did not see how long the knife was He said he brought the wounded Ramon
to the Zamboanga City General Hospital in a tricycle.

On cross-examination, Samson testified:

xxx xxx xxx

Q When you rushed Ramon Pichel, Jr. to the hospital you came to know
that he was already dead, is that correct?
A Yes, sir, I learned that he was already dead.
Q In the hospital, were you investigated by the police?
A They just asked the description of that person as to his attire and his
appearance.
Q And it was while in the hospital that you told them the description of the
one who stabbed Ramon Pichel, Jr.?
A Yes, Sir.
Q And the body of Ramon Pichel, Jr., was brought to the Funeraria La Merced?
A Yes, sir,
Q Can you recall what time was that?
A I do not know what time was that.
Q And it was all La Merced Funeraria that the police brought to you the accused?
A...
Q For Identification?
A Yes, sir.
Q And he was alone when you Identified him?
A Yes he was alone.
Q Aside from working with the Pichel family in their sand and gravel business, do you have
any blood relationship with them?
A Yes. sir. 6
(Emphasis supplied)
xxx xxx xxx

What comes as a surprise is that Samson's statement 7 which was taken only on July 25, 1981, two days after
the stabbing, and sworn to only on July 27, 1981, also two days after it was taken, or four days after the killing,
was never presented or mentioned by the prosecution at all. The information was practically forced out of
Police Corporal Rogelio P. Carpio, a witness for the People, during his cross-examination. 8 The sworn
statement contained the following questions and answers:

xxx xxx xxx

Q-14. What and please narrate it to me briefly in your own words, the
incident you are referring?
A-14. While I was busy selecting some mangoes, I saw unidentified person
whom I can recognize by face if seen again embraced my companion
Ramon Pitcher Jr. while the latter was aboard his motorcycle parked within
the area. That this person without much ado, and armed with a knife
suddenly stabbed him (Ramon). That by coincidence to this incident, our
eye met each other and immediately thereafter, he fled the area toward
the Philippine National Bank (PNB). That this unidentified person was
sporting a semi-long hair, dressed in White Polo-Shirt (Short sleeve),
maong pants height to more or less 5'5, Dark Complexion. That as this
unidentified person fled the area I immediately came to aid my companion,
Ramon Pitcher, Jr., and rushed him to Zamboanga General Hospital, on
board a Tricycle. That may companion (Ramon) did not whispered (sic) any

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JC ISIDRO
 words to me for he was in serious condition and few minutes later, he
expired.
Q-15. Was tills unidentified person was with companion when he attack
(sic) Ramon Pitcher Jr.?
A-15. He was alone Sir.
Q-16. Can you really Identified (sic) this person who attacked and stabbed
your companion, Ramon Pitcher, Jr., that evening in question?
A-16. Yes, Sir,
Q-17. Do you still remember that confrontation we made at the Office of La
Merced Funeral Homes, wherein you were confronted with one Usman
Hassan, whom this Officer brought along?
A-17. Yes, Sir.
Q-18. Was he the very person, who attacked and stabbed your companion,
Ramon Pitcher, Jr.?
A-18. Yes, Sir, he was the very person who attacked and stabbed my
companion, Ramon Pitcher, Jr., that evening in question.
Q-19. Why?
A-19. Because his face and other physical appearance were fully noted by
me and this I cannot forget for the rest of my life.
Q-20. Before this incident, was there any altercation that had ensued while
in the process of buying some mangoes in that area?
A-20. None Sir.
Q-21. Were you able to note what kind of knife used by said Usman Hassan
in stabbing your companion, Ramon Pitcher Jr.?
A-21: None Sir,
Q-22. Well, I have nothing more to ask of you, do you have anything more
to say, add or alter in this statement?
A-22. No more Sir.
Q-23. Are you willing to give a supplemental statement if needed in the
future?
A-23. Yes, Sir. 9
(Emphasis supplied)
xxx xxx xxx

The version of the sole eyewitness appearing in his statement 10 is substantially the same as that embodied in
the "Case Report," Exhibit it "C", by Police Corporal Carpio, also admitted a s Exhibit "2." This exhibit for the
prosecution confirms the sworn statement of witness Samson that an unidentified person, whom he
recognized only by face, appeared and without any provocation, the latter embraced the victim and stabbed
the same allegedly with a knife." The rest of the Case Report: is also significant in that it confirms the
confrontation between the accused and Jose Samson in the funeral parlor arranged by the police Investigator
and prosecution witness, Corporal Carpio.

xxx xxx xxx

From this end, a follow-up was made within the premises of the Old Barter Trade, wherein
the person of USMAN HASSAN Y AYUN, of Paso Bolong, this City, was arrested in connection
with the above stated incident. That this Officer and companions arrested this person Usman
due to his physical appearance, which was fully described by victim's companion. Jose
Samson. During his arrest, a knife, measuring to more or less seven (7) inches in blade was
confiscated in his possession. The person of Usman Hassan was brought along at the La
Merced Funeral Homes for a confrontation with victims companion, Jose Samson and in this
confrontation, Jose Samson positively Identified said Usman Hassan as the very person who
stabbed the victim.

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 Usman Hassan, on the other hand, denied the charges levelled against hub and admitted
ownership of said knife; claiming among other things that he used said knife for slicing
mangoes. 11

xxx xxx xxx

We hold that the evidence for the prosecution in its entirety does not satisfy the quantum of proof — beyond
reasonable doubt — required by the Constitution, the law, and applicable jurisprudence to convict an accused
person. The said evidence denies us the moral certainty which would allow us to pronounce, without
uneasiness of conscience. Usman Hassan y Ayun guilty of the killing of the deceased Ramon Pichel, Jr. y Uro,
and condemn him to life imprisonment and in effect turning him into a flotsam again in a sea of convicted
felons in which he would be a very young stranger.

In evaluating the worth of the testimony of the lone eyewitness for the prosecution against the denial and alibi
of the accused, value judgment must not be separated from the constitutionally guaranteed presumption of
innocence.

When the evidence for the prosecution and the evidence for the accused are weighed, the
scales must be tipped in favor of the latter. This is because of the constitutional presumtion
of innocence the accused enjoys as a counter-foil to the awesome authority of the State that
is prosecuting him.

The element of doubt, if reasonable in this case, must operate against the inference of guilt
the prosecution would draw from its evidence. That evidence, as it happens, consists only of
the uncorroborated statement of the two policemen which, as previously observed, is flawed
and therefore suspect. 12

The testimony of Jose Samson, the lone eyewitness, is weak and unconvincing. And so with the evidence
sought to be introduced by Police Corporal Carpio. We discover, for example, that the expert testimony of the
medico-legal officer of the National Bureau of Investigation, Dr. Valentin Bernalez, presented by the
prosecution, contradicted, on material points, the testimony of the one eyewitness, Jose Samson. While
Samson averred on the witness stand that he saw the assailant stab the deceased "from behind on his
chest" 13 only once, the NBI medico-legal officer Identified two stab wounds, one at the front portion of the
chest at the level and third rib, (sic) and another stab wound located at the left arm posterior aspect." 14 The
same medical expert also concluded from the nature and location of the chest wound, which was the cause of
death, that the same was inflicted on the victim while the alleged accused was in front of him." 15

The investigation of this case by the Homicide/Arson Section of the Zamboanga Southern Police Sector, 16 at
Zamboanga City, particularly by Police Corporal Rogelio P. Carpio, leaves much to be desired. For one, we are
not satisfied with the procedure adopted by the police investigators in the Identification of the accused as the
assailant. We have no doubt that Usman Hassan was "presented" alone 17 to Jose Samson by the police
investigator and prosecution witness, Police Corporal Carpio, and his police companions, at the office of the La
Merced Funeral Homes in Zamboanga City. As correctly termed by the very evidence 18 of the prosecution, the
procedure adopted by the police investigators was a confrontation" between Jose Samson, Jr. and Usman.
Earlier, on direct examination, Corporal Carpio testified that Usman was alone when he was brought to
Samson for confrontation in the funeral parlor. However, on cross-examination, Carpio made a turnabout by
saying that the accused was Identified by Samson in a "police line-up;" this tergiversation we dare say, was an
afterthought, more the result of an over or careless cross-examination, augmented by the leading
questions 19 of the trial judge rather than a fastidiousness if not sincerity, on the part of the police investigator,
to honestly correct erroneous statements in his examination-in-chief. The fact remains that both Samson and
the accused testified clearly and unequivocably that Usman was alone when presented to Samson by Carpio.
There was no such police line-up as the police investigator, to honestly correct erreoneous statements in his
examination-in-chief. The fact remains that both Samson and the accused testified clearly and unequivocably
that Usman was alone when presented to Samson by Carpio. There was no such police investigator claimed on
second thought.

10
JC ISIDRO
The manner by which Jose Samson, Jr. was made to confront and Identify the accused alone at the funeral
parlor, without being placed in the police line-up, was "pointedly suggsestive, generated confidence where
there was none, activated visual imagination, and, all told, subserted his reliability as eyewitness. This unusual,
coarse, and highly singular method of Identification, which revolts against the accepted principles of scientific
crime detection, alienates the esteem of every just man, and commands neither our respect nor
acceptance." 20

Moreover, the confrontation arranged by the police investigator between the self-proclaimed eyewitness and
the accused did violence to the right of the latter to counsel in all stages of the investigation into the
commission of a crime especially at its most crucial stage — the Identification of the accused.

As it turned out, the method of Identification became just a confrontation. At that critical and decisive
moment, the scales of justice tipped unevenly against the young, poor, and disadvantaged accused. The police
procedure adopted in this case in which only the accused was presented to witness Samson, in the funeral
parlor, and in the presence of the grieving relatives of the victim, is as tainted as an uncounselled confession
and thus falls within the same ambit of the constitutionally entrenched protection. For this infringement alone,
the accused-appellant should be acquitted.

Moreover, aside from this slipshod Identification procedure, the rest of the investigation of the crime and the
preparation of the evidence for prosecution were done haphazardly, perfunctorily, and superficially. Samson
was not investigated thoroughly and immediately after the incident. As previously mentioned, his statement
was taken by the investigator only two days after the murder of Ramon Pichel, Jr. and sworn only two days
after it had been taken. Similarly, there is nothing in the record to show that the fruit vendor—from whom
Samson and the deceased were buying mangoes that fateful evening and who certainly must have witnessed
the fatal stabbing—was investigated, or why he was not investigated. Nor is any explanation given as to why
the companion 21 of the accused at the time Corporal Carpio arrested him (accused) 'sitting on a pushcart
" 22 at about 8:00 P.M. (around 7:00 P.M., according to Usman) of that same evening near the scene of the
crime, was not also investigated when he could have been a material witness of the killing or of the innocence
of the accused. In addition, the knife and its scabbard, 23Confiscated by Carpio from Usman (tucked on the
right side of his waist") at the time of his arrest, were not even subjected to any testing at all to determine the
presence of human blood which could be typed and compared with the blood type of the deceased. A crime
laboratory test — had Carpio or the prosecuting fiscal, or even the trial judge, insisted on it — would have
revealed whether or not the knife in question (confiscated from the accused by Carpio one hour after the
alleged commission of the crime) had indeed been the weapon used to kill Ramon. The police investigator
instead nonchalantly dismissed this sin of omission by saying that the knife could have been cleaned or the
bloodstain could have been taken away. 24 This presumption of the deadly weapon's having been "cleaned" of
bloodstains is tantamount to pronouncing the accused of being guilty.

Our doubt about the guilt of the accused is further deepened by a resolution, 25 in a separate case, 26 of
Assistant City Fiscal of Zamboanga City and deputized Tanod bayan Prosecutor Pablo Murillo, which clearly
reveals that on July 24, 1981, a day after the killing of Ramon Pichel, Jr., a similar stabbing took place at Plaza
Pershing near the place of the earlier incident, with the suspect in that frustrated homicide case being a
certain Benhar Isa, 'a notorious and a deadly police character" in Zamboanga City, with a long record of
arrests. In that resolution, Fiscal Murillo said the same Benhar Isa was tagged as 'also a suspect in the stabbing
of Ramon Pichel, Jr. to death and the stabbing of Pastor Henry Villagracia at the Fruit Paradise, this City." The
said resolution further states that "with regards to this incident or witnesses ever testified for fear of possible
reprisals." 27

The trial of Usman Hassan began on October 27, 1981. Benhar Isa himself was killed by a policeman on August
28, 1981, while he (Isa) "was apparently under the influence of liquor armed with a knife (was) molesting and
extorting money from innocent civilians' and "making trouble." 28 The records of the case at bar do not show
any attempt on the part of Corporal Carpio, or any other police officer, to investigate or question Benhar Isa in
connection with the killing of Pichel, Jr. Was it fear of the notorious police character that made the police
officers disregard the possible connection between the slaying of Ramon and that of the person (Harun Acan y
Arang of the Ministry of National Defense) 29 who was allegedly stabbed by Benhar Isa a day after the killing of
Ramon Jr.? And yet questioning Isa might have provided that vital link to the resolution of Usman's guilt or

11
JC ISIDRO
innocence. But why should the police officers investigate Isa when Usman Hassan was already in custody and
could be an available fall guy? Usman Hassan, instead, became a victim of a grave injustice. Indeed, Usman
Hassan is too poor to wage a legal fight to prove his innocence. And he is so marginalized as to claim and
deserve an honest-to-goodness, thorough, and fair police investigation with all angles and leads pursued to
their logical, if not scientific, conclusions. Sadly circumstanced as he is, the authority of the State was too
awesome for him to counteract.

The appealed decision made much ado of the admission by Usman "that he was arrested at the former barter
trade, which is a place just across the place of the stabbing at the Fruit Paradise." 30 The trial judge found it
"therefore strange that on the very evening of the stabbing incident he was still at the barter trade area by
8:00 o'clock in the evening when he usually comes to the city proper at about 6:00 o'clock in the morning and
goes home at past 5:00 o'clock and sometimes 6:00 o'clock in the afternoon." 31 Usman's explanation — that,
at around 7:00 o'clock P.M., he was waiting for transportation to take him home — was found by the trial
court as 'flimsy and weak since he did not explain why he had to go home late that evening." 32 But the whole
trouble is nobody asked him. The trial judge did not propound any single question to the accused, and only
three to his mother on innocuous matters, by way of clarification, if only to put on record what the mother
and son could articulate with clarity. Taking into account their poverty and illiteracy, the mother and son
needed as much, if not more, help, than the trial judge extended to the prosecution witnesses during their
examination by asking them clarificatory and mostly leading questions. In that sense and to that extent, the
accused was disadvantaged.

A fact that looms large, though mutely to testify on the innocence of the accused but the importance of which
was brushed away by the trial judge was the presence of the accused near the scene (about 100 to 150 meters
away) soon after the stabbing (he testified at around 7:00 P.M. although Police Corporal Carpio stated it was
8:00 P.M.) where he was found sitting on his pushcart with a companion. If he were the assailant, he would
have fled. But the trial court instead indulged in conjecture, foisting the probability that the accused 'was lulled
by a false sense of security in returning to the place (of the stabbing), when no police officers immediately
responded and appeared at the scene of the crime," adding 'there are numerous cases in the past where
criminals return to the scene of their crimes, for reasons only psychologist can explain." 33 It must have
escaped the trial court's attention that Usman has no criminal record, and, therefore, he could not be
generally classed with criminals. In the second place, the trial court's rationalization ignores the biblical truism
recognized by human nature and endorsed with approval by this Court that "(T)he wicked flee when no man
pursueth but the righteous are as bold as a lion." 34

And now as a penultimate observation, we could not help but note the total absence of motive ascribed to
Usman for stabbing Ramon, a complete stranger to him. While, as a general rule, motive is not essential in
order to arrive at a conviction, because, after all, motive is a state of mind, 35 procedurally, however, for
purposes of complying with the requirement that a judgment of guilty must stem from proof beyond
reasonable doubt, the lack of motive on the part of the accused plays a pivotal role towards his acquittal. This
is especially true where there is doubt as to the Identity of the culprit 36 as when 'the Identification is
extremely tenuous," 37 as in this case.

We can not end this travail without adverting to the cavalier manner in which the trial court disregarded the
claimed young age of Usman Hassan.

The defense claims that the accused Usman Hassan is a minor, basing such claim on the
testimony of Lahunay Hassan, the mother of said accused, who declared that her son Usman
Hassan, who is one of her four (4) children, was born in the year 1967. She testified that she
was just told by a person coming from their place about the year of the birth of her son
Usman. However on cross-examination, Lahunay Hassan cannot even remember the date or
year of birth of her other children. The failure of Lahunay Hassan to remember the date or
year of birth of her children is of course understandable, considering that she is unschooled
and she belongs to a tribe that does not register births, deaths or marriages, however, it is
strange that she only took pains to find out the year of birth of her son Usman. For this
reason, the Court granted a motion of the defense on September 13, 1982, to have the
herein accused examined by a competent dentist to determine his age. However, the

12
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 findings of the dentist of Zamboanga General Hospital which is marked as Exhibit "5" shows
the following: "age cannot be determined accurately under present mouth conditions.
Approximately, he can be from 14 to 21 years of age." This simply means that the herein
accused could either be 14 years of age or 21 years of age, or any age in between those
aforestated years. From the observation of this court, the accused Usman Hassan was about
18 years of age at the time he committed this crime and this observation is based on his
personal appearance, his size and facial features and other personal characteristics, hence he
can not be classified as a youthful offender under Article. 189 of Presendential Decree No.
603, as ammended by Presedential Decree No. 1179. In the case of U.S. vs. Mallari, 29 Phil.
13 and People vs. Reyes and Panganiban, CA 48 O.G. 1022, cited in the Edition, Page 680, it
was ruled by the Supreme Court that "In cases where the age of the culprit is at issue as a
basis for claiming an exempting mitigating circumstance, it is incumbent upon the accused to
establish that circumstance ad any other elements of defense. 38

Considering that the age of the accused could exempt him from punishment or cause the suspension of his
sentence under Articles 12 and 80, respectively of the Revised Penal Code, if found guilty, more
meticulousness and care should have been demanded of medical or scientific sources, and less reliance on the
observation of the judge as had happened in this case. The preliminary findings of the dentist that the accused
could be anywhere between fourteen to twenty one years, despite the difficulty of arriving at an accurate
determination due to Hassan's mouth condition, would have placed the trial judge on notice that there is the
probability that the accused might be exempted from criminal liability due to his young age. All the foregoing
indicates that the accused had not been granted the concern and compassion with which the poor,
marginalized, and disadvantaged so critically deserve. It is when judicial and police processes and procedures
are thoughtlessly and haphazardly observed that cries of the law and justice being denied the poor are heard.
In any event, all this would not be of any moment now, considering the acquittal of the accused herein
ordered.

WHEREFORE, the decision is hereby REVERSED, and the accused Usman Hassan y Ayun is ACQUITTED of the
crime charged. His release from confinement is hereby Ordered, unless he is held for another legal cause. With
costs de oficio.

SO ORDERED.

Yap (Chairman), Paras and Padilla, JJ., concur.

Separate Opinions

MELENCIO-HERRERA, J., concurring:

That the testimony of the lone eyewitness is weak and unconvincing.

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G.R. No. 135919 May 9, 2003

PEOPLE OF THE PHILIPPINES, appellee,

vs.
DANNY DELOS SANTOS Y FERNANDEZ, appellant.

SANDOVAL-GUTIERREZ, J.:

For automatic review is the Decision1 dated October 2, 1998 of the Regional Trial Court, Branch 21, Malolos,
Bulacan, in Criminal Case No. 3551798, finding appellant Danny delos Santos guilty of the crime of murder and
sentencing him to suffer the penalty of death.

In the Information2 dated February 23, 1998, appellant was charged with murder, thus:

"That on or about the 6th day of November 1997, in the Municipality of San Jose, Del Monte, Province
of Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused,
armed with a kitchen knife, with intent to kill one Rod Flores y Juanitas, with evident premeditation,
treachery and taking advantage of superior strength, did then and there willfully, unlawfully and
feloniously attack, assault and stab with the said kitchen knife said Rod Flores y Juanitas, hitting him
on the different parts of his body, thereby inflicting upon him mortal wounds which directly caused
his death."

Upon arraignment, appellant pleaded "not guilty."3 Thereafter, trial on the merits ensued. The prosecution
presented Marcelino de Leon, Marvin Tablate, Dr. Benito Caballero and Romeo Flores as its witnesses.
Appellant and Sonny Bautista took the witness stand for the defense.

Marcelino De Leon testified that at around 8:00 p.m. of November 6, 1997, he saw Rod Flores drinking "gin"
with Narciso Salvador, Marvin Tablate and Jayvee Rainier at the latter's house in Sarmiento Homes, San Jose
del Monte, Bulacan.4 As he was about to fetch water from a nearby faucet, he approached them and borrowed
Flores' cart.5 While waiting for the cart, he stood across Flores who was then seated and conversing with the
group.6Suddenly, appellant emerged from the back of Flores and stabbed him with a knife, 7 making an upward
and downward thrust.8 Flores ran after he was stabbed twice.9 Appellant pursued him and stabbed him many
times.10As a result, Flores' intestines bulged out of his stomach.11 Appellant ceased stabbing Flores only after
he saw him dead. Thereafter, he turned his ire against Jayvee Rainier and chased him. Fearful for his life,
witness De Leon hid himself and later on reported the incident to the police. 12

Marvin Tablate corroborated De Leon's testimony. On cross-examination, Tablate testified that he tried to help
Flores by separating him from the appellant who ran away.13 He also testified that the latter joined his group
at about 11:00 a.m. and kept on "coming back and forth."

Dr. Caballero declared on the witness stand that Flores suffered twenty-one (21) stab wounds in the frontal,
posterior and lateral side of his body, eleven (11) of which were fatal. Dr. Caballero said it was possible that
appellant was behind Flores considering the stab wounds inflicted at his back. 14 According to the doctor, Flores
died because of "massive external/internal hemorrhages due to multiple stab wounds in the thorax and
abdomen penetrating both lungs, heart, stomach, liver, spleen and intestines." 15

Romeo Flores testified that his son Rod Flores was then working at Vitarich, Marilao, Bulacan, earning P600.00
every 15th day of the month;16 that he spent P100,000.00 for his son's burial and wake; that he has receipts in
the amount of P19,110.00 spent for the funeral services and the cost of the cemetery lot 17 and a list of other
expenses in the amount of P35,960.00;18 and that his family has been grieving for the loss of a loved one.

Appellant had a different version of the events. He denied the accusation and declared that on November 6,
1997 at 8:00 p.m., he was in his auntie's house in Muson, San Jose del Monte, Bulacan,19 forty (40) meters
away from the scene of the crime. He was then fetching water.20 Earlier, at about 5:30 p.m., he and Flores met

14
JC ISIDRO
but they did not greet each other. There was no altercation between them. Hence, he could not understand
why De Leon and Tablate testified against him.

Sonny Bautista testified that on that particular date and time, he and appellant were in their auntie's house in
San Jose del Monte, Bulacan.21 They watched television up to 8:30 p.m. and then went home. At about 10:00
p.m., appellant was arrested. Bautista did not inform the policemen that they were watching television in their
auntie's house at the time the crime took place. Neither did he accompany appellant to the police station. 22

On October 2, 1998, the trial court rendered a Decision, the dispositive portion of which reads:

"All premises considered, this Court resolves and so holds that the prosecution has been able to
establish the criminal culpability of the accused beyond reasonable doubt. Accordingly, Danny delos
Santos is hereby found guilty of the crime of Murder with the qualifying circumstance of treachery.

"In the imposition of the penalty, the Court hereby takes into account the brutality in the manner by
which the life of the victim was taken, and if only to serve as deterrent to others who might be
similarly obsessed, it is believed that the higher of the two penalties provided should be meted to the
accused herein. Absent any circumstance that would mitigate the severity of his criminal act and
pursuant to Articles 248 of the Revised Penal Code, as amended by Section 6, Republic Act no. 7659,
the accused Danny delos Santos y Fernandez is hereby sentenced to suffer the penalty of Death by
lethal injection.

"Further, the accused is condemned to indemnify the heirs of the deceased the amount of P50,000.00
for the victim's death. Moreover, accused delos Santos is ordered to pay the said heirs of the
deceased Rod Flores the following sums of money:

1. P264,000.00 for loss of earning capacity;

2. P55,070.00 for actual and compensatory damages;

3. P50,000.00 for moral damages;

4. P50,000.00 for exemplary damages.

"With costs against the accused.

"SO ORDERED."

In his Appellant's brief, appellant ascribes to the trial court the following errors:

"I

THE COURT A QUO GRAVELY ERRED IN GIVING FULL FAITH AND CREDENCE TO THE TESTIMONY OF
THE ALLEGED EYEWITNESSES, AND IN NOT ACQUITTING ACCUSED-APPELLANT ON GROUND OF
REASONABLE DOUBT.

"II

THE COURT A QUO ERRED IN ORDERING ACCUSED-APPELLANT TO INDEMNIFY THE HEIRS OF VICTIM
THE AMOUNT OF P50,000.00 FOR VICTIM'S DEATH; P264,000.00 FOR LOSS OF EARNING CAPACITY;
P55,070.00 FOR ACTUAL AND COMPENSATORY DAMAGES; P50,000.00 FOR MORAL DAMAGES; AND
P50,000.00 FOR EXEMPLARY DAMAGES."23

15
JC ISIDRO
Appellant contends that there are some inconsistencies between the testimonies of De Leon and Tablate, the
prosecution witnesses. Also, there is no evidence that he has a motive to kill Flores. In fact, there was no
previous heated argument or altercation between them. That the prosecution witnesses executed their sworn
statements only after two months from the commission of the crime raises doubt as to their credibility. Finally,
the evidence for the prosecution failed to meet the exacting test of moral certainty, hence, the trial court
should not have ordered him to indemnify the heirs of Flores.

The Solicitor General, in the Appellee's brief, counters that: (a) the inconsistencies pointed out by appellant
are minor and do not vitiate the fact that he was the one who killed Flores; (b) appellant's defenses of alibi and
denial are worthless since he was positively identified by the prosecution witnesses; (c) he failed to proffer any
explanation why the prosecution witnesses implicated him; (d) the crime was aggravated by cruelty because
he "butchered" Flores until his intestines bulged out of his stomach; and (e) the heirs of Flores are entitled to
indemnification as it has been shown beyond reasonable doubt that appellant killed him.

The first assigned error involves a determination of the credibility of the prosecution witnesses. Settled is the
rule that when it comes to credibility of witnesses, appellate courts generally do not overturn the findings of
trial courts. The latter are in a best position to ascertain and measure the sincerity and spontaneity of
witnesses through their actual observation of the witnesses' manner of testifying, demeanor and behavior in
court.24

We see no reason to deviate from this rule.

Appellant maintains that there are inconsistencies in the testimonies of De Leon and Tablate. While De Leon
testified that appellant did not join Flores' group, however, Tablate declared that he was drinking "gin" with
them at about 11:00 a.m. De Leon testified that no one assisted Flores when he was being attacked by
appellant. However, Tablate stated that he attempted to separate Flores from appellant after the former had
sustained two stab wounds.

The first alleged inconsistency is understandable. Unlike Tablate who was with the group in a drinking spree,
De Leon approached Flores only when he borrowed the cart from the latter at about 8:00 p.m. He stayed with
Flores' group only for about thirty minutes,25 or up to 8:30 p.m. Thus, he could not have observed that
appellant joined the group earlier, or at about 11: 00 a.m.

The second alleged inconsistency is a minor one that does not enfeeble the prosecution's theory that appellant
killed Flores. Evident from De Leon's testimony is the fact that he was so shocked in witnessing the gruesome
killing of his companion. With such a state of mind, it would be too much to demand from him a full
recollection of the details surrounding the event. Many times we have ruled that inconsistencies in the
testimony of witnesses when referring only to minor details and collateral matters do not affect the substance
of their declaration, their veracity, or the weight of their testimony. 26 They only serve to strengthen rather
than weaken the credibility of witnesses for they erase the suspicion of a rehearsed testimony. 27 What we find
important in the case at bar is that the two prosecution witnesses were one in saying that it was appellant who
stabbed Flores with a knife. We quote the clear and straightforward account of the incident by De Leon and
Tablate. During cross-examination, De Leon testified as follows:

"Atty. De la Cruz:
Q You did not see the accused because it was dark in that place, is it not?
A No, sir, he suddenly appeared from the back of Rod Flores and started stabbing Rod that is
why we were surprised.
Court:
Q How did the accused thrust the weapon to the victim?
A (Witness demonstrating by making upward, downward thrust at the back of the victim)
Atty. De la Cruz:
Q Where was Rod Flores hit, if you know?
A At the back, sir.
Q How many times?
A At first, twice, sir.

16
JC ISIDRO
 Court:
Q That was the time when Rod Flores ran away after having been stabbed twice.
A Yes, Your Honor.
xxx xxx xxx
Court:
Q How did the accused thrust for the second time the weapon at the back of the victim.
A Both at the back, sir.
xxx xxx xxx
Atty. De la Cruz:
Q Was Rod Flores able to ran away?
A Yes, sir.
Q Where were you when Rod Flores was running away?
A We were left behind, sir. I was not able to move anymore.
Q And was the accused able to reach Flores?
A Yes, sir.
Q What did the accused do?
A Again, he started stabbing at the back, sir.
Q So the stabbing was inflicted at the back of the victim?
A Not all, sir, because he turned him face up and stabbed him again, sir." 28
Tablate's direct testimony reads:
"Fiscal Vicente:
xxx xxx xxx
Q How did Danny delos Santos stab Rod Flores?
A "Patalikod," sir.
Q What do you mean?
A Danny delos Santos stabbed Rod Flores at the back, sir.
Q When you said Danny delos Santos stabbed Rod Flores at the back, are you saying that
Danny delos Santos was at the back of Rod Flores at the time?
A Yes, sir.
Q How many times did the accused stab Rod Flores?
A I saw him stabbed the victim twice, sir. (Witness demonstrated in downward position as if he
was holding something).
Q What was he holding?
A A knife, sir.
xxx xxx xxx
Court:
xxx xxx xxx
Q Are you sure that when Rod Flores fell to the ground, he was not able to rise nor was he able
to run away?
A He was able to run but then he was drunk and the accused was able to catch and stab him
again, sir.
xxx xxx xxx
Q Are you positive to the identity of Danny delos Santos that he was the one who stabbed Rod
Flores?
A Yes, sir." 29

Appellant argues that since the prosecution witnesses testified that there was no altercation between him and
Flores, it follows that no motive to kill can be attributed to him. This is an inconsequential argument. Proof of
motive is not indispensable for a conviction, particularly where the accused is positively identified by an
eyewitness and his participation is adequately established.30 In People vs. Galano,31 we ruled that in the
crime of murder, motive is not an element of the offense, it becomes material only when the evidence is
circumstantial or inconclusive and there is some doubt on whether the accused had committed it. In the case
before us, no such doubt exits as De Leon and Tablate positively identified appellant.

In a last-ditch attempt to cast doubt on the testimonies of the prosecution witnesses, appellant questions why
their statements were taken only on January 29, 1998 when the incident happened on November 6, 1997. The

17
JC ISIDRO
two-month delay is hardly an indicium of a concocted story. It is but natural for witnesses to avoid being
involved in a criminal proceeding particularly when the crime committed is of such gravity as to show the
cruelty of the perpetrator. Born of human experience, the fear of retaliation can have a paralyzing effect to the
witnesses.32 Thus, in People vs. Dacibar,33 we held that the initial reluctance of witnesses to volunteer
information about a criminal case is of common knowledge and has been judicially declared as insufficient to
affect credibility, especially when a valid reason exists for such hesitance.

Anent the second error, appellant contends that the trial court erred in indemnifying the heirs of Flores since
his guilt was not proved beyond reasonable doubt. Suffice it to state at this point that the evidence for the
prosecution produces moral certainty that appellant is guilty of the crime charged, hence, should be
answerable for all its consequences.

As earlier mentioned, appellant's defenses are mere alibi and denial. He testified that at the time the crime
took place, he was in his auntie's house in Muson; San Jose del Monte, Bulacan. When probed by the trial
court, he categorically stated that the house is only 40 meters away from the scene of the crime and may be
traveled in about three or five minutes. 34 For the defense of alibi to prosper, it must be convincing enough to
preclude any doubt on the physical impossibility of the presence of the accused at the locus criminis at the
time of the incident.35 Certainly, the required impossibility does not exist here.

Weighing the evidence of the prosecution vis-à-vis that of the defense, the scale of justice must tilt in favor of
the former. Time and again, we ruled that positive identification, where categorical and consistent and without
any showing of ill-motive on the part of the eyewitnesses testifying on the matter, prevails over alibi and
denial which, if not substantiated by clear and convincing proof, are negative and self-serving evidence
undeserving of weight in law.36 With marked relevance is the fact that appellant did not present any evidence
to show that the prosecution witnesses, in testifying against him, have improper motive.

The prosecution was able to establish that appellant's attack on Flores was from behind without any slightest
provocation on his part37 and that it was sudden and unexpected. This is a clear case of treachery. Where the
victim was totally unprepared for the unexpected attack from behind with no weapon to resist it, the stabbing
could only be described as treacherous.38 There being treachery, appellant's conviction for murder is in order.

However, in the imposition of penalty, we cannot appreciate the aggravating circumstance of cruelty
considered by the trial court. Pursuant to the 2000 Revised Rules of Criminal Procedure, every Information
must state not only the qualifying but also the aggravating circumstances. 39 This rule may be given retroactive
effect in the light of the well-established rule that statutes regulating the procedure of the courts will be
construed as applicable to actions pending and undetermined at the time of their passage. 40 The aggravating
circumstance of cruelty, not having been alleged in the Information, may not be appreciated to enhance the
liability of appellant.

Under Article 24841 of the Revised Penal Code, the penalty for the consummated crime of murder is reclusion
perpetua to death. In this case, the lesser of the two indivisible penalties shall be imposed, there being neither
mitigating nor aggravating circumstances attending the crime. 42

In keeping with the current jurisprudence, the heirs of Flores are entitled to the amount of P50,000.00 by way
of civil indemnity ex delicto.43 As regards the actual damages, it appears that out of the P55,070.00 awarded by
the trial court, only P19,170.0044 was actually supported by receipts. The other amounts were based solely on
a list prepared by Romeo Flores. To be entitled to actual damages, it is necessary to prove the actual amount
of loss with a reasonable degree of certainty, premised upon competent proof and on the best evidence
obtainable to the injured party.45 In the case at bar, the prosecution failed to present receipts for the other
expenses incurred. Thus, in light of the recent case of People vs. Abrazaldo,46 we grant the award of
P25,000.00 as temperate damages inasmuch as the proven actual damages is less than P25,000.00. The moral
damages awarded in the amount of P50,000.00 is affirmed, there being proofs that because of Flores' death,
his heirs suffered wounded feelings, mental anguish, anxiety and similar injury. 47 However, we reduce to
P25,000.00 only the trial court's award of P50,000.00 as exemplary damages.48

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The amount of indemnity for loss of earning capacity is based on the income at the time of death and the
probable life expectancy of the victim. In the case at bar, the trial court found that Flores' annual gross income
is P14,400.00 computed at the rate of P1,200.00 a month for twelve (12) months. From this amount is
deducted the necessary and incidental expenses, estimated at 50%, leaving a balance of P7,200.00. His net
income would then be multiplied by his life expectancy, using the following formula: 2/3 x 80 - 25 (age of the
victim at time of death). Considering that he was 25 years old when he died, his life expectancy would be 37.
Multiplying the net balance of his annual income by his life expectancy, the loss of his earning is P266,400.00,
thus:

"In computing the life expectancy and loss of earning capacity of a person the following formula is
used:
Life expectancy -
2/3 x (80 - the age of the victim at the time of death)
2/3 x (80 - 25)
2/3 x 55
= 36.66 or 37
Loss of earning capacity -
net annual income x life expectancy
P7,200 x 37
= P266,400.00" 49

WHEREFORE, the Decision dated October 2, 1998 of the Regional Trial Court, Branch 21, Malolos, Bulacan, in
Criminal Case No. 3551798, finding appellant Danny delos Santos y Fernandez guilty of the crime of murder is
AFFIRMED with MODIFICATION in the sense that he is sentenced to suffer the penalty of reclusion
perpetua and to pay the heirs of the late Rod Flores y Juanitas the amounts of P50,000.00 as civil indemnity,
P25,0000.00 as temperate damages, P50,000.00 as moral damages, P25,000.00 as exemplary damages, and
P266,400.00 for loss of earning capacity.

Costs de oficio.

SO ORDERED.

Davide, Jr ., C .J ., Bellosillo, Puno, Vitug, Panganiban, Quisumbing, Ynares-Santiago, Carpio, Austria-Martinez,

Corona, Carpio-Morales, Callejo, Sr., and Azcuna, JJ ., concur.

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G.R. No. L-1477 January 18, 1950

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
JULIO GUILLEN, defendant-appellant.

Mariano A. Albert for appellant.

Office of the Solicitor General Felix Bautista Angelo and Solicitor Francisco A. Carreon for appellee.

PER CURIAM, J.:

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

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

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

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

FORMULATION AND DIAGNOSIS

Julio C. Guillen was placed under constant observation since admission. There was not a single
moment during his whole 24 hours daily, that he was not under observation.

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

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

His version of the circumstances of the crime, his conduct and conversation relative thereto, the
motives, temptations and provocations that preceded the act, were all those of an individual with a
sound mind.

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

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

All these mean a defect in his personality characterized by a weakness of censorship especially in
relation to rationalization about the consequences of his acts.

In view of the above findings it is our considered opinion that Julio C. Guillen is not insane but is an
individual with a personality defect which in Psychiatry is termed, Constitutional Psychopathic
Inferiority.

Final Diagnosis

Not insane: Constitutional Psychopathic Inferiority, without psychosis.

In view of the above-quoted findings of the medical board, and notwithstanding the contrary opinion of one
Dr. Alvarez, who was asked by the defense to give his opinion on the matter, the court ruled that Guillen, not
being insane, could be tired, as he was tired, for the offenses he committed on the date in question.

THE FACTS

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

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

After he had pondered for some time over the ways and means of assassinating President Roxas, the
opportunity presented itself on the night of March 10, 1947, when at a popular meeting held by the Liberal
Party at Plaza de Miranda, Quiapo, Manila attended by a big crowd, President Roxas, accompanied by his wife
and daughter and surrounded by a number of ladies and gentlemen prominent in government and politics,
stood on a platform erected for that purpose and delivered his speech expounding and trying to convince his
thousand of listeners of the advantages to be gained by the Philippines, should the constitutional amendment
granting American citizens the same rights granted to Filipino nationals be adopted.

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

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

FOR THE SAKE OF A FREE PHILIPPINES

I am the only one responsible for what happened. I conceived it, I planned it, and I carried it out all by
myself alone. It took me many days and nights pondering over this act, talking to my own conscience,
to my God, until I reached my conclusion. It was my duty.

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

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

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

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

Hurrah for a free Philippines.

Cheers for the happiness of every Filipino home.

May God pity on me.

Amen.

JULIO C. GUILLEN

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

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

General Castañeda, who was on the platform, saw the smoking, hissing, grenade and without losing his
presence of mind, kicked it away from the platform, along the stairway, and towards an open space where the
general thought the grenade was likely to do the least harm; and, covering the President with his body,
shouted to the crowd that everybody should lie down. The grenade fell to the ground and exploded in the

22
JC ISIDRO
middle of a group of persons who were standing close to the platform. Confusion ensued, and the crowd
dispersed in a panic. It was found that the fragments of the grenade had seriously injured Simeon Varela (or
Barrela ) — who died on the following day as the result of mortal wounds caused by the fragments of the
grenade (Exhibits F and F-1) — Alfredo Eva, Jose Fabio, Pedro Carrillo and Emilio Maglalang.

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

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

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

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

THE ISSUES

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

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

Guillen, testifying in his own behalf, in answer to questions propounded by the trial judge (page 96 of
transcript) supports our conclusion. He stated that he performed the act voluntarily; that his purpose was to
kill the President, but that it did not make any difference to him if there were some people around the
President when he hurled that bomb, because the killing of those who surrounded the President was
tantamount to killing the President, in view of the fact that those persons, being loyal to the President being
loyal to the President, were identified with the latter. In other word, although it was not his main intention to

23
JC ISIDRO
kill the persons surrounding the President, he felt no conjunction in killing them also in order to attain his main
purpose of killing the President.

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

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

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

Cuestion 62. Se presenta A, a las ocho de la noche, en el estanco de B a comprar tabaco, y habiendose
negado este a darselo al fiado, se retira a quel sin mediar entre ambos disputa alguna; pero;
trnscurrido un cuarto de hora, hallandose el estanquero despachando a C, se oye la detonacion de un
arma de fuego disparada por A desde la calle, quedando muertos en el acto C y el estanquero;
supuesta la no intencion en A de matar a C y si solo al estanquero, cabe calificar la muerte de este de
homicidio y la de c de imprudencia temeraria? — La Sala de lo Criminal de la Auudiencia de Granada
lo estimo asi, y condeno al procesado a catorse anos de reclusion por el homivcidio y a un año de
prision correctional por la imprudencia. Aparte de que la muerte del estanquero debio calificarse de
assesinato y no de homicidio, por haberse ejecutado con aleviosa. es evidente que la muerte de C,
suponiendo que no se propusiera ejecutaria el procesado, no pudo calificarse de imprudencia teme
raria, sino que tambien debio declararsele responsable de la misma, a tenor de lo puesto en este
apartado ultimo del articulo; y que siendo ambas muertes producidas por un solo hecho, o sea por un
solo disparo, debio imponerse al reo la pena del delito de asesinato en el grado maximo, a tenor de lo
dispuesto en el art. 90 del Codigo, o sea la pena de muerte. Se ve, pues, claramente que en el
antedicha sentencia, aparte de otros articulos del Codigo, se infringio por la Sala la disposicion de este
apartado ultimo del articulo muy principalmente, y asi lo declaro el Tribunal Supremo en S. de 18
junio de 1872. (Gaceta de 1,0 de agosto.) (I Viada, 5th Ed., p. 42.)

Article 48 of the Revised Penal Code provides as follows:

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

We think it is the above-quoted article and not paragraph 1 of article 49 that is applicable. The case before us
is clearly governed by the first clause of article 48 because by a single act, that a throwing highly explosive
hand grenade at President Roxas, the accused committed two grave felonies, namely: (1) murder, of which
Simeon Varela was the victim; and (2) multiple attempted murder, of which President Roxas, Alfredo Eva, Jose
Fabio, Pedro Carrillo and Emilio Maglalang were the injured parties.

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

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

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

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

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

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

Moran, C.J., Ozaeta, Paras, Pablo, Bengzon, Padilla, Tuason, Montemayor, Reyes and Torres, JJ., concur.

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JC ISIDRO
G.R. No. L-25366 March 29, 1968

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
JOSE BUAN, accused-appellant.

Office of the Solicitor General for plaintiff-appellee.

Felipe C. Magat and Amado D. Dyoco for accused-appellant.

REYES, J.B.L., Actg. C.J.:

Direct appeal by the accused from an order of the Court of First Instance of Bulacan, in its Criminal Case
No. 5243 (for serious physical injuries and damage to property through reckless imprudence), overruling a
motion to quash on the ground of double jeopardy.

Stripped to essentials, the case arose in this wise:

The accused was driving a passenger bus of the La Mallorca Company on July 23, 1962, along the
MacArthur Highway in the municipality of Guiguinto, Bulacan. Allegedly because of his negligence — and
recklessness, the vehicle driven by him struck and collided with the passenger jeep of Sergio Lumidao,
damaging said jeep and causing it to turn turtle, and injuring its passengers. Six of the latter suffered slight
physical injuries requiring medical attendance for 5 to 9 days: three other riders came out with serious bodily
injuries that needed medical attention for 30 to 45 days; while the jeep was damaged to the extent of
P1,395.00.

A charge was filed against the accused-appellant, one for slight physical injuries through reckless
imprudence, in the Justice of the Peace Court of Guiguinto, for which he was tried and acquitted on December
16, 1963. Prior to this acquittal, however, the Provincial Fiscal of Bulacan filed in the Court of First Instance the
information in the case now before us, for serious physical injuries, and damage to property through reckless
imprudence. Admittedly, both charges referred to the same highway collision.

When the accused was arraigned in the Court of First Instance, his counsel moved to quash the charges
on the ground that he had already been acquitted of the same offense by the Justice of the Peace Court. The
prosecution opposed the motion and the Court denied the motion quash. Unable to secure reconsideration,
the accused appealed to this Court.

Sole issue before us, therefore, is whether the second case placed the appellant twice in jeopardy for the
same offense, and is barred by the previous acquittal.

We agree with the appellant that the Court below erred in not dismissing the information for "serious
physical injuries and damage to property through reckless imprudence," in view of the appellant's previous
acquittal by the Justice of the Peace Court of Guiguinto, Bulacan, for the same imprudence.

Reason and precedent both coincide in that once convicted or acquitted of a specific act of reckless
imprudence, the accused may not be prosecuted again for that same act. For the essence of the quasi offense
of criminal negligence under article 365 of the Revised Penal Code lies in the execution of an imprudent or
negligent act that, if intentionally done, would be punishable as a felony. The law penalizes thus the negligent
or careless act, not the result thereof. The gravity of the consequence is only taken into account to determine
the penalty, it does not qualify the substance of the offense. And, as the careless act is single, whether the
injurious result should affect one person or several persons, the offense (criminal negligence) remains one and
the same, and can not be split into different crimes and prosecutions. This has been the constant ruling of the
Spanish Supreme Court, and is also that of this Court in its most recent decisions on the matter.

Thus, in People vs. Silva, L-15974, January 30, 1962, where as the result of the same vehicular accident
one man died, two persons were seriously injured while another three suffered only slight physical injuries, we

26
JC ISIDRO
ruled that the acquittal on a charge of slight physical injuries through reckless imprudence, was a bar to
another prosecution for homicide through reckless imprudence. In People vs. Diaz, L-6518, March 30, 1954,
the ruling was that the dismissal by the Municipal Court of a charge of reckless driving barred a second
information of damage to property through reckless imprudence based on the same negligent act of the
accused. In People vs, Belga, 100 Phil. 996, dismissal of an information for physical injuries through needless
imprudence as a result of a collision between two automobiles was declared, to block two other prosecutions,
one for damage to property through reckless imprudence and another for multiple physical injuries arising
from the same collision. The same doctrine was reasserted in Yap vs. Lutero, et al., L-12669, April 30, 1959. In
none of the cases cited did the Supreme Court regard as material that the various offenses charged for the
same occurrence were triable in Courts of differing category, or that the complainants were not the
individuals.

As for the Spanish jurisprudence, Cuello Calon, in his Derecho Penal (12th Ed.), Vol. I, p. 439, has this to
say:1äwphï1.ñët

Aun cuando de un solo hecho imprudente se originen males diversos, como el hecho culposo es
uno solo, existe un solo delito de imprudencia. Esta es jurisprudencia constante del Tribunal Supremo.
De acuerdo con esta doctrinael automovilista imprudente que atropella y causa lesiones a dos
personas y ademas daños, no respondera de dos delitos de lesiones y uno de daños por imprudencia,
sino de un solo delito culposo.

The said author cites in support of the text the following decisions of the Supreme Court of Spain
(footnotes 2 and 3).

8 octubre 1887, 18 octubre 1927.

Si con el hecho imprudente se causa la muerte de una persona y ademas se ocasionan daños,
existe un solo hecho punible, pues uno solo fue el acto, aun cuando deben apreciarse dos enorden a
la responsabilidad civil, 14 diciembre 1931 si a consecuencia de un solo acto imprudente se
produjeron tres delitos, dos de homicidio y uno de daños, como todos son consecuencia de un solo
acto culposo, no cabe penarlos por separado, 2 abril 1932.

The Solicitor General stresses in his brief that the charge for slight physical injuries through reckless
imprudence could not be joined with the accusation for serious physical injuries through reckless imprudence,
because Article 48 of the Revised Penal Code allows only the complexing of grave or less grave felonies. This
same argument was considered and rejected by this Court in the case of People vs. Diaz, supra:

... The prosecution's contention might be true. But neither was the prosecution obliged to first
prosecute the accused for slight physical injuries through reckless imprudence before pressing the
more serious charge of homicide with serious physical injuries through reckless imprudence. Having
first prosecuted the defendant for the lesser offense in the Justice of the Peace Court of Meycauayan,
Bulacan, which acquitted the defendant, the prosecuting attorney is not now in a position to press in
this case the more serious charge of homicide with serious physical injuries through reckless
imprudence which arose out of the same alleged reckless imprudence of which the defendant has
been previously cleared by the inferior court.

In view of the foregoing, we must perforce rule that the exoneration of this appellant, Jose Buan, by the
Justice of the Peace (now Municipal) Court of Guiguinto, Bulacan, of the charge of slight physical injuries
through reckless imprudence, prevents his being prosecuted for serious physical injuries through reckless
imprudence in the Court of First Instance of the province, where both charges are derived from the
consequences of one and the same vehicular accident, because the second accusation places the appellant in
second jeopardy for the same offense.

WHEREFORE, the order appealed from is reversed, and the Court of First Instance of Bulacan is directed
to quash and dismiss the charge in its Criminal Case No. 5243. No costs. So ordered.

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JC ISIDRO
G.R. No. L-74324 November 17, 1988

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
FERNANDO PUGAY y BALCITA, & BENJAMIN SAMSON y MAGDALENA, accused-appellants.

The Solicitor General for plaintiff-appellee.

Citizens Legal Assistance Office for accused-appellants.

MEDIALDEA, J.:

For the death of Bayani Miranda, a retardate, FERNANDO PUGAY y BALCITA and BENJAMIN SAMSON y
MAGDALENA were charged with the crime of MURDER in Criminal Case No. L-175-82 of the Court of First
Instance (now Regional Trial Court) of Cavite, under an information which reads as follows:

That on or about May 19, 1982 at the town plaza of the Municipality of Rosario, Province of
Cavite, Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, conspiring, confederating and mutually helping and assisting one another, with
treachery and evident premeditation, taking advantage of their superior strength, and with
the decided purpose to kill, poured gasoline, a combustible liquid to the body of Bayani
Miranda and with the use of fire did then and there, wilfully, unlawfully and feloniously, burn
the whole body of said Bayani Miranda which caused his subsequent death, to the damage
and prejudice of the heirs of the aforenamed Bayani Miranda.

That the crime was committed with the qualifying circumstance of treachery and the
aggravating circumstances of evident premeditation and superior strength, and the means
employed was to weaken the defense; that the wrong done in the commission of the crime
was deliberately augmented by causing another wrong, that is the burning of the body of
Bayani Miranda.

CONTRARY TO LAW (p. 1, Records).

Upon being arraigned, both accused pleaded not guilty to the offense charged. After trial, the trial court
rendered a decision finding both accused guilty on the crime of murder but crediting in favor of the accused
Pugay the mitigating circumstance of lack of intention to commit so grave a wrong, the dispositive portion of
which reads as follows:

WHEREFORE, the accused Fernando Pugay y Balcita and Benjamin Samson y Magdalena are
pronounced guilty beyond reasonable doubt as principals by direct participation of the crime
of murder for the death of Bayani Miranda, and appreciating the aforestated mitigating
circumstance in favor of Pugay, he is sentenced to a prison term ranging from twelve (12)
years of prision mayor, as minimum, to twenty (20) years of reclusion temporal, as maximum,
and Samson to suffer the penalty of reclusion perpetua together with the accessories of the
law for both of them. The accused are solidarily held liable to indemnify the heirs of the
victim in the amount of P13,940.00 plus moral damages of P10,000.00 and exemplary
damages of P5,000.00.

Let the preventive imprisonment of Pugay be deducted from the principal penalty.

Cost against both accused.

SO ORDERED (p. 248, Records).

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JC ISIDRO
Not satisfied with the decision, both accused interposed the present appeal and assigned the following errors
committed by the court a quo:

1. THE COURT A QUO ERRED IN UTILIZING THE STATEMENTS OF ACCUSED-APPELLANTS IN ITS

APPRECIATION OF FACTS DESPITE ITS ADMISSION THAT THE ACCUSED-APPELLANTS WERE
NOT ASSISTED BY A COUNSEL DURING THE CUSTODIAL INVESTIGATION.

2. THE COURT A QUO ERRED IN NOT FINDING THAT THE SUPPRESSION BY THE PROSECUTION
OF SOME EVIDENCE IS FATAL TO ITS CASE.

3. THE COURT A QUO ERRED IN LENDING CREDENCE TO THE INCREDIBLE TESTIMONY OF

EDUARDO GABION WHO WAS ONE OF THE MANY SUSPECTS ARRESTED BY THE POLICE
(Accused-appellants' Brief, p. 48, Rollo).

The antecedent facts are as follows:

The deceased Miranda, a 25-year old retardate, and the accused Pugay were friends. Miranda used to run
errands for Pugay and at times they slept together. On the evening of May 19, 1982, a town fiesta fair was held
in the public plaza of Rosario, Cavite. There were different kinds of ride and one was a ferris wheel.

Sometime after midnight of the same date, Eduardo Gabion was sitting in the ferris wheel and reading a comic
book with his friend Henry. Later, the accused Pugay and Samson with several companions arrived. These
persons appeared to be drunk as they were all happy and noisy. As the group saw the deceased walking
nearby, they started making fun of him. They made the deceased dance by tickling him with a piece of wood.

Not content with what they were doing with the deceased, the accused Pugay suddenly took a can of gasoline
from under the engine of the ferns wheel and poured its contents on the body of the former. Gabion told
Pugay not to do so while the latter was already in the process of pouring the gasoline. Then, the accused
Samson set Miranda on fire making a human torch out of him.

The ferris wheel operator later arrived and doused with water the burning body of the deceased. Some people
around also poured sand on the burning body and others wrapped the same with rags to extinguish the flame.

The body of the deceased was still aflame when police officer Rolando Silangcruz and other police officers of
the Rosario Police Force arrived at the scene of the incident. Upon inquiring as to who were responsible for the
dastardly act, the persons around spontaneously pointed to Pugay and Samson as the authors thereof.

The deceased was later rushed to the Grace Hospital for treatment. In the meantime, the police officers
brought Gabion, the two accused and five other persons to the Rosario municipal building for interrogation.
Police officer Reynaldo Canlas took the written statements of Gabion and the two accused, after which Gabion
was released. The two accused remained in custody.

After a careful review of the records, We find the grounds relied upon by the accused-appellants for the
reversal of the decision of the court a quo to be without merit.

It bears emphasis that barely a few hours after the incident, accused-appellants gave their written statements
to the police. The accused Pugay admitted in his statement, Exhibit F, that he poured a can of gasoline on the
deceased believing that the contents thereof was water and then the accused Samson set the deceased on
fire. The accused Samson, on the other hand, alleged in his statement that he saw Pugay pour gasoline on
Miranda but did not see the person who set him on fire. Worthy of note is the fact that both statements did
not impute any participation of eyewitness Gabion in the commission of the offense.

While testifying on their defense, the accused-appellants repudiated their written statements alleging that
they were extracted by force. They claimed that the police maltreated them into admitting authorship of the
crime. They also engaged in a concerted effort to lay the blame on Gabion for the commission of the offense.

29
JC ISIDRO
Thus, while it is true that the written statements of the accused-appellants were mentioned and discussed in
the decision of the court a quo, the contents thereof were not utilized as the sole basis for the findings of facts
in the decision rendered. The said court categorically stated that "even without Exhibits 'F' and 'G', there is still
Gabion's straightforward, positive and convincing testimony which remains unaffected by the uncorroborated,
self-serving and unrealiable testimonies of Pugay and Samson" (p. 247, Records).

Accused-appellants next assert that the prosecution suppressed the testimonies of other eyewitnesses to the
incident. They claim that despite the fact that there were other persons investigated by the police, only Gabion
was presented as an eyewitness during the trial of the case. They argue that the deliberate non- presentation
of these persons raises the presumption that their testimonies would be adverse to the prosecution.

There is no dispute that there were other persons who witnessed the commission of the crime. In fact there
appears on record (pp. 16-17, Records) the written statements of one Abelardo Reyes and one Monico
Alimorong alleging the same facts and imputing the respective acts of pouring of gasoline and setting the
deceased on fire to the accused-appellants as testified to by Gabion in open court. They were listed as
prosecution witnesses in the information filed. Considering that their testimonies would be merely
corroborative, their non-presentation does not give rise to the presumption that evidence wilfully suppressed
would be adverse if produced. This presumption does not apply to the suppression of merely corroborative
evidence (U.S. vs. Dinola, 37 Phil. 797).<äre||anº•1àw> Besides, the matter as to whom to utilize as witness is
for the prosecution to decide.

Accused-appellants also attack the credibility of the eyewitness Gabion alleging that not only was the latter
requested by the mother of the deceased to testify for the prosecution in exchange for his absolution from
liability but also because his testimony that he was reading a comic book during an unusual event is contrary
to human behavior and experience.

Gabion testified that it was his uncle and not the mother of the deceased who asked him to testify and state
the truth about the incident. The mother of the deceased likewise testified that she never talked to Gabion
and that she saw the latter for the first time when the instant case was tried. Besides, the accused Pugay
admitted that Gabion was his friend and both Pugay and the other accused Samson testified that they had no
previous misunderstanding with Gabion. Clearly, Gabion had no reason to testify falsely against them.

In support of their claim that the testimony of Gabion to the effect that he saw Pugay pour gasoline on the
deceased and then Samson set him on fire is incredible, the accused-appellants quote Gabion's testimony on
cross-examination that, after telling Pugay not to pour gasoline on the deceased, he (Gabion) resumed reading
comics; and that it was only when the victim's body was on fire that he noticed a commotion.

However, explaining this testimony on re-direct examination, Gabion stated:

Q. Mr. Gabion, you told the Court on cross-examination that you were
reading comics when you saw Pugay poured gasoline unto Bayani Miranda
and lighted by Samson. How could you possibly see that incident while you
were reading comics?

A. I put down the comics which I am reading and I saw what they were
doing.

Q. According to you also before Bayani was poured with gasoline and
lighted and burned later you had a talk with Pugay, is that correct?

A. When he was pouring gasoline on Bayani Miranda I was trying to

prevent him from doing so.

30
JC ISIDRO
 Q. We want to clarify. According to you a while ago you had a talk with
Pugay and as a matter of fact, you told him not to pour gasoline. That is
what I want to know from you, if that is true?

A. Yes, sir.

Q. Aside from Bayani being tickled with a stick on his ass, do you mean to
say you come to know that Pugay will pour gasoline unto him?

A. I do not know that would be that incident.

Q. Why did you as(k) Pugay in the first place not to pour gasoline before he
did that actually?

A. Because I pity Bayani, sir.

Q. When you saw Pugay tickling Bayani with a stick on his ass you tried
according to you to ask him not to and then later you said you asked not to
pour gasoline. Did Pugay tell you he was going to pour gasoline on Bayani?

A. I was not told, sir.

Q. Did you come to know..... how did you come to know he was going to
pour gasoline that is why you prevent him?

A. Because he was holding on a container of gasoline. I thought it was

water but it was gasoline.

Q. It is clear that while Pugay was tickling Bayani with a stick on his ass, he
later got hold of a can of gasoline, is that correct?

A. Yes, sir.

Q. And when he pick up the can of gasoline, was that the time you told him
not to pour gasoline when he merely pick up the can of gasoline.

A. I saw him pouring the gasoline on the body of Joe.

Q. So, it is clear when you told Pugay not to pour gasoline he was already in
the process of pouring gasoline on the body of Bayani?

A. Yes, sir (Tsn, July 30, 1983, pp. 32-33).

It is thus clear that prior to the incident in question, Gabion was reading a comic book; that Gabion stopped
reading when the group of Pugay started to make fun of the deceased; that Gabion saw Pugay get the can of
gasoline from under the engine of the ferris wheel; that it was while Pugay was in the process of pouring the
gasoline on the body of the deceased when Gabion warned him not to do so; and that Gabion later saw
Samson set the deceased on fire.

However, there is nothing in the records showing that there was previous conspiracy or unity of criminal
purpose and intention between the two accused-appellants immediately before the commission of the crime.
There was no animosity between the deceased and the accused Pugay or Samson. Their meeting at the scene
of the incident was accidental. It is also clear that the accused Pugay and his group merely wanted to make fun
of the deceased. Hence, the respective criminal responsibility of Pugay and Samson arising from different acts

31
JC ISIDRO
directed against the deceased is individual and not collective, and each of them is liable only for the act
committed by him (U.S. vs. Magcomot, et. al. 13, Phil. 386; U.S. vs. Abiog, et. al. 37 Phil. 1371).

The next question to be determined is the criminal responsibility of the accused Pugay. Having taken the can
from under the engine of the ferris wheel and holding it before pouring its contents on the body of the
deceased, this accused knew that the can contained gasoline. The stinging smell of this flammable liquid could
not have escaped his notice even before pouring the same. Clearly, he failed to exercise all the diligence
necessary to avoid every undesirable consequence arising from any act that may be committed by his
companions who at the time were making fun of the deceased. We agree with the Solicitor General that the
accused is only guilty of homicide through reckless imprudence defined in Article 365 of the Revised Penal
Code, as amended. In U.S. vs. Maleza, et. al. 14 Phil. 468, 470, this Court ruled as follows:

A man must use common sense and exercise due reflection in all his acts; it is his duty to be
cautious, careful, and prudent, if not from instinct, then through fear of incurring
punishment. He is responsible for such results as anyone might foresee and for acts which no
one would have performed except through culpable abandon. Otherwise his own person,
rights and property, all those of his fellow-beings, would ever be exposed to all manner of
danger and injury.

The proper penalty that the accused Pugay must suffer is an indeterminate one ranging from four (4) months
of arresto mayor, as minimum, to four (4) years and two (2) months of prision correccional, as maximum. With
respect to the accused Samson, the Solicitor General in his brief contends that "his conviction of murder, is
proper considering that his act in setting the deceased on fire knowing that gasoline had just been poured on
him is characterized by treachery as the victim was left completely helpless to defend and protect himself
against such an outrage" (p. 57, Rollo). We do not agree.

There is entire absence of proof in the record that the accused Samson had some reason to kill the deceased
before the incident. On the contrary, there is adequate evidence showing that his act was merely a part of
their fun-making that evening. For the circumstance of treachery to exist, the attack must be deliberate and
the culprit employed means, methods, or forms in the execution thereof which tend directly and specially to
insure its execution, without risk to himself arising from any defense which the offended party might make.

There can be no doubt that the accused Samson knew very well that the liquid poured on the body of the
deceased was gasoline and a flammable substance for he would not have committed the act of setting the
latter on fire if it were otherwise. Giving him the benefit of doubt, it call be conceded that as part of their fun-
making he merely intended to set the deceased's clothes on fire. His act, however, does not relieve him of
criminal responsibility. Burning the clothes of the victim would cause at the very least some kind of physical
injuries on his person, a felony defined in the Revised Penal Code. If his act resulted into a graver offense, as
what took place in the instant case, he must be held responsible therefor. Article 4 of the aforesaid code
provides, inter alia, 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.

As no sufficient evidence appears in the record establishing any qualifying circumstances, the accused Samson
is only guilty of the crime of homicide defined and penalized in Article 249 of the Revised Penal Code, as
amended. We are disposed to credit in his favor the ordinary mitigating circumstance of no intention to
commit so grave a wrong as that committed as there is evidence of a fact from which such conclusion can be
drawn. The eyewitness Gabion testified that the accused Pugay and Samson were stunned when they noticed
the deceased burning (Tsn, June 1, 1983, pp. 16-17).<äre||anº•1àw>

The proper penalty that the accused Samson must suffer is an indeterminate one ranging from eight (8) years
of prision mayor, as minimum, to fourteen (14) years of reclusion temporal, as maximum.

The lower court held the accused solidarily liable for P13,940.00, the amount spent by Miranda's parents for
his hospitalization, wake and interment. The indemnity for death is P30,000.00. Hence, the indemnity to the
heirs of the deceased Miranda is increased to P43,940.00.

32
JC ISIDRO
Both accused shall be jointly and severally liable for the aforesaid amount plus the P10,000.00 as moral
damages and P5,000.00 as exemplary damages as found by the court a quo.

Accordingly, the judgment is affirmed with the modifications above-indicated. Costs against the accused-
appellants.

SO ORDERED.

Narvasa, Cruz, Gancayco and Griño-Aquino, JJ., concur.

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JC ISIDRO
G.R. No. L-5272 March 19, 1910

THE UNITED STATES, plaintiff-appellee,

vs.
AH CHONG, defendant-appellant.

Gibb & Gale, for appellant.

Attorney-General Villamor, for appellee.

CARSON, J.:

The evidence as to many of the essential and vital facts in this case is limited to the testimony of the accused
himself, because from the very nature of these facts and from the circumstances surrounding the incident
upon which these proceedings rest, no other evidence as to these facts was available either to the prosecution
or to the defense. We think, however, that, giving the accused the benefit of the doubt as to the weight of the
evidence touching those details of the incident as to which there can be said to be any doubt, the following
statement of the material facts disclose by the record may be taken to be substantially correct:

The defendant, Ah Chong, was employed as a cook at "Officers' quarters, No. 27," Fort Mc Kinley, Rizal
Province, and at the same place Pascual Gualberto, deceased, was employed as a house boy or muchacho.
"Officers' quarters No. 27" as a detached house situates some 40 meters from the nearest building, and in
August, 19087, was occupied solely as an officers' mess or club. No one slept in the house except the two
servants, who jointly occupied a small room toward the rear of the building, the door of which opened upon a
narrow porch running along the side of the building, by which communication was had with the other part of
the house. This porch was covered by a heavy growth of vines for its entire length and height. The door of the
room was not furnished with a permanent bolt or lock, and occupants, as a measure of security, had attached
a small hook or catch on the inside of the door, and were in the habit of reinforcing this somewhat insecure
means of fastening the door by placing against it a chair. In the room there was but one small window, which,
like the door, opened on the porch. Aside from the door and window, there were no other openings of any
kind in the room.

On the night of August 14, 1908, at about 10 o'clock, the defendant, who had received for the night, was
suddenly awakened by some trying to force open the door of the room. He sat up in bed and called out twice,
"Who is there?" He heard no answer and was convinced by the noise at the door that it was being pushed
open by someone bent upon forcing his way into the room. Due to the heavy growth of vines along the front
of the porch, the room was very dark, and the defendant, fearing that the intruder was a robber or a thief,
leaped to his feet and called out. "If you enter the room, I will kill you." At that moment he was struck just
above the knee by the edge of the chair which had been placed against the door. In the darkness and
confusion the defendant thought that the blow had been inflicted by the person who had forced the door
open, whom he supposed to be a burglar, though in the light of after events, it is probable that the chair was
merely thrown back into the room by the sudden opening of the door against which it rested. Seizing a
common kitchen knife which he kept under his pillow, the defendant struck out wildly at the intruder who, it
afterwards turned out, was his roommate, Pascual. Pascual ran out upon the porch and fell down on the steps
in a desperately wounded condition, followed by the defendant, who immediately recognized him in the
moonlight. Seeing that Pascual was wounded, he called to his employers who slept in the next house, No. 28,
and ran back to his room to secure bandages to bind up Pascual's wounds.

There had been several robberies in Fort McKinley not long prior to the date of the incident just described, one
of which took place in a house in which the defendant was employed as cook; and as defendant alleges, it was
because of these repeated robberies he kept a knife under his pillow for his personal protection.

The deceased and the accused, who roomed together and who appear to have on friendly and amicable terms
prior to the fatal incident, had an understanding that when either returned at night, he should knock at the
door and acquiant his companion with his identity. Pascual had left the house early in the evening and gone
for a walk with his friends, Celestino Quiambao and Mariano Ibañez, servants employed at officers' quarters

34
JC ISIDRO
No. 28, the nearest house to the mess hall. The three returned from their walk at about 10 o'clock, and
Celestino and Mariano stopped at their room at No. 28, Pascual going on to his room at No. 27. A few
moments after the party separated, Celestino and Mariano heard cries for assistance and upon returning to
No. 27 found Pascual sitting on the back steps fatally wounded in the stomach, whereupon one of them ran
back to No. 28 and called Liuetenants Jacobs and Healy, who immediately went to the aid of the wounded
man.

The defendant then and there admitted that he had stabbed his roommate, but said that he did it under the
impression that Pascual was "a ladron" because he forced open the door of their sleeping room, despite
defendant's warnings.

No reasonable explanation of the remarkable conduct on the part of Pascuals suggests itself, unless it be that
the boy in a spirit of mischief was playing a trick on his Chinese roommate, and sought to frightened him by
forcing his way into the room, refusing to give his name or say who he was, in order to make Ah Chong believe
that he was being attacked by a robber.

Defendant was placed under arrest forthwith, and Pascual was conveyed to the military hospital, where he
died from the effects of the wound on the following day.

The defendant was charged with the crime of assassination, tried, and found guilty by the trial court of simple
homicide, with extenuating circumstances, and sentenced to six years and one day presidio mayor, the
minimum penalty prescribed by law.

At the trial in the court below the defendant admitted that he killed his roommate, Pascual Gualberto, but
insisted that he struck the fatal blow without any intent to do a wrongful act, in the exercise of his lawful right
of self-defense.

Article 8 of the Penal Code provides that —

The following are not delinquent and are therefore exempt from criminal liability:

xxx xxx xxx

4 He who acts in defense of his person or rights, provided there are the following attendant
circumstances:

(1) Illegal aggression.

(2) Reasonable necessity of the means employed to prevent or repel it.

(3) Lack of sufficient provocation on the part of the person defending himself.

Under these provisions we think that there can be no doubt that defendant would be entitle to complete
exception from criminal liability for the death of the victim of his fatal blow, if the intruder who forced open
the door of his room had been in fact a dangerous thief or "ladron," as the defendant believed him to be. No
one, under such circumstances, would doubt the right of the defendant to resist and repel such an intrusion,
and the thief having forced open the door notwithstanding defendant's thrice-repeated warning to desist, and
his threat that he would kill the intruder if he persisted in his attempt, it will not be questioned that in the
darkness of the night, in a small room, with no means of escape, with the thief advancing upon him despite his
warnings defendant would have been wholly justified in using any available weapon to defend himself from
such an assault, and in striking promptly, without waiting for the thief to discover his whereabouts and deliver
the first blow.

But the evidence clearly discloses that the intruder was not a thief or a "ladron." That neither the defendant
nor his property nor any of the property under his charge was in real danger at the time when he struck the

35
JC ISIDRO
fatal blow. That there was no such "unlawful aggression" on the part of a thief or "ladron" as defendant
believed he was repelling and resisting, and that there was no real "necessity" for the use of the knife to
defend his person or his property or the property under his charge.

The question then squarely presents it self, whether in this jurisdiction one can be held criminally responsible
who, by reason of a mistake as to the facts, does an act for which he would be exempt from criminal liability if
the facts were as he supposed them to be, but which would constitute the crime of homicide or assassination
if the actor had known the true state of the facts at the time when he committed the act. To this question we
think there can be but one answer, and we hold that under such circumstances there is no criminal liability,
provided always that the alleged ignorance or mistake or fact was not due to negligence or bad faith.

In broader terms, ignorance or mistake of fact, if such ignorance or mistake of fact is sufficient to negative a
particular intent which under the law is a necessary ingredient of the offense charged (e.g., in larcerny, animus
furendi; in murder, malice; in crimes intent) "cancels the presumption of intent," and works an acquittal;
except in those cases where the circumstances demand a conviction under the penal provisions touching
criminal negligence; and in cases where, under the provisions of article 1 of the Penal Code one voluntarily
committing a crime or misdeamor incurs criminal liability for any wrongful act committed by him, even though
it be different from that which he intended to commit. (Wharton's Criminal Law, sec. 87 and cases cited;
McClain's Crim. Law, sec. 133 and cases cited; Pettit vs. S., 28 Tex. Ap., 240; Commonwealth vs. Power, 7 Met.,
596; Yates vs. People, 32 N.Y., 509; Isham vs. State, 38 Ala., 213; Commonwealth vs. Rogers, 7 Met., 500.)

The general proposition thus stated hardly admits of discussion, and the only question worthy of consideration
is whether malice or criminal intent is an essential element or ingredient of the crimes of homicide and
assassination as defined and penalized in the Penal Code. It has been said that since the definitions there given
of these as well as most other crimes and offense therein defined, do not specifically and expressly declare
that the acts constituting the crime or offense must be committed with malice or with criminal intent in order
that the actor may be held criminally liable, the commission of the acts set out in the various definitions
subjects the actor to the penalties described therein, unless it appears that he is exempted from liability under
one or other of the express provisions of article 8 of the code, which treats of exemption. But while it is true
that contrary to the general rule of legislative enactment in the United States, the definitions of crimes and
offenses as set out in the Penal Code rarely contain provisions expressly declaring that malice or criminal
intent is an essential ingredient of the crime, nevertheless, the general provisions of article 1 of the code
clearly indicate that malice, or criminal intent in some form, is an essential requisite of all crimes and offense
therein defined, in the absence of express provisions modifying the general rule, such as are those touching
liability resulting from acts negligently or imprudently committed, and acts done by one voluntarily committing
a crime or misdemeanor, where the act committed is different from that which he intended to commit. And it
is to be observed that even these exceptions are more apparent than real, for "There is little distinction,
except in degree, between a will to do a wrongful thing and indifference whether it is done or not. Therefore
carelessness is criminal, and within limits supplies the place of the affirmative criminal intent" (Bishop's New
Criminal Law, vol. 1, s. 313); and, again, "There is so little difference between a disposition to do a great harm
and a disposition to do harm that one of them may very well be looked upon as the measure of the other.
Since, therefore, the guilt of a crime consists in the disposition to do harm, which the criminal shows by
committing it, and since this disposition is greater or less in proportion to the harm which is done by the crime,
the consequence is that the guilt of the crime follows the same proportion; it is greater or less according as the
crime in its own nature does greater or less harm" (Ruth. Ints. C. 18, p. 11); or, as it has been otherwise stated,
the thing done, having proceeded from a corrupt mid, is to be viewed the same whether the corruption was of
one particular form or another.

Article 1 of the Penal Code is as follows:

Crimes or misdemeanors are voluntary acts and ommissions punished by law.

Acts and omissions punished by law are always presumed to be voluntarily unless the contrary shall
appear.

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JC ISIDRO
 An person voluntarily committing a crime or misdemeanor shall incur criminal liability, even though
the wrongful act committed be different from that which he had intended to commit.

The celebrated Spanish jurist Pacheco, discussing the meaning of the word "voluntary" as used in this article,
say that a voluntary act is a free, intelligent, and intentional act, and roundly asserts that without intention
(intention to do wrong or criminal intention) there can be no crime; and that the word "voluntary" implies and
includes the words "con malicia," which were expressly set out in the definition of the word "crime" in the
code of 1822, but omitted from the code of 1870, because, as Pacheco insists, their use in the former code was
redundant, being implied and included in the word "voluntary." (Pacheco, Codigo Penal, vol. 1, p. 74.)

Viada, while insisting that the absence of intention to commit the crime can only be said to exempt from
criminal responsibility when the act which was actually intended to be done was in itself a lawful one, and in
the absence of negligence or imprudence, nevertheless admits and recognizes in his discussion of the
provisions of this article of the code that in general without intention there can be no crime. (Viada, vol. 1, p.
16.) And, as we have shown above, the exceptions insisted upon by Viada are more apparent than real.

Silvela, in discussing the doctrine herein laid down, says:

In fact, it is sufficient to remember the first article, which declared that where there is no intention
there is no crime . . . in order to affirm, without fear of mistake, that under our code there can be no
crime if there is no act, an act which must fall within the sphere of ethics if there is no moral injury.
(Vol. 2, the Criminal Law, folio 169.)

And to the same effect are various decisions of the supreme court of Spain, as, for example in its sentence of
May 31, 1882, in which it made use of the following language:

It is necessary that this act, in order to constitute a crime, involve all the malice which is supposed
from the operation of the will and an intent to cause the injury which may be the object of the crime.

And again in its sentence of March 16, 1892, wherein it held that "considering that, whatever may be the civil
effects of the inscription of his three sons, made by the appellant in the civil registry and in the parochial
church, there can be no crime because of the lack of the necessary element or criminal intention, which
characterizes every action or ommission punished by law; nor is he guilty of criminal negligence."

And to the same effect in its sentence of December 30, 1896, it made use of the following language:

. . . Considering that the moral element of the crime, that is, intent or malice or their absence in the
commission of an act defined and punished by law as criminal, is not a necessary question of fact
submitted to the exclusive judgment and decision of the trial court.

That the author of the Penal Code deemed criminal intent or malice to be an essential element of the various
crimes and misdemeanors therein defined becomes clear also from an examination of the provisions of article
568, which are as follows:

He who shall execute through reckless negligence an act that, if done with malice, would constitute a
grave crime, shall be punished with the penalty of arresto mayor in its maximum degree, to prision
correccional in its minimum degrees if it shall constitute a less grave crime.

He who in violation of the regulations shall commit a crime through simple imprudence or negligence
shall incur the penalty of arresto mayor in its medium and maximum degrees.

In the application of these penalties the courts shall proceed according to their discretion, without
being subject to the rules prescribed in article 81.

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 The provisions of this article shall not be applicable if the penalty prescribed for the crime is equal to
or less than those contained in the first paragraph thereof, in which case the courts shall apply the
next one thereto in the degree which they may consider proper.

The word "malice" in this article is manifestly substantially equivalent to the words "criminal intent," and the
direct inference from its provisions is that the commission of the acts contemplated therein, in the absence of
malice (criminal intent), negligence, and imprudence, does not impose any criminal liability on the actor.

The word "voluntary" as used in article 1 of the Penal Code would seem to approximate in meaning the word
"willful" as used in English and American statute to designate a form of criminal intent. It has been said that
while the word "willful" sometimes means little more than intentionally or designedly, yet it is more frequently
understood to extent a little further and approximate the idea of the milder kind of legal malice; that is, it
signifies an evil intent without justifiable excuse. In one case it was said to mean, as employed in a statute in
contemplation, "wantonly" or "causelessly;" in another, "without reasonable grounds to believe the thing
lawful." And Shaw, C. J., once said that ordinarily in a statute it means "not merely `voluntarily' but with a bad
purpose; in other words, corruptly." In English and the American statutes defining crimes "malice,"
"malicious," "maliciously," and "malice aforethought" are words indicating intent, more purely technical than
"willful" or willfully," but "the difference between them is not great;" the word "malice" not often being
understood to require general malevolence toward a particular individual, and signifying rather the intent
from our legal justification. (Bishop's New Criminal Law, vol. 1, secs. 428 and 429, and cases cited.)

But even in the absence of express words in a statute, setting out a condition in the definition of a crime that it
be committed "voluntarily," willfully," "maliciously" "with malice aforethought," or in one of the various
modes generally construed to imply a criminal intent, we think that reasoning from general principles it will
always be found that with the rare exceptions hereinafter mentioned, to constitute a crime evil intent must
combine with an act. Mr. Bishop, who supports his position with numerous citations from the decided cases,
thus forcely present this doctrine:

In no one thing does criminal jurisprudence differ more from civil than in the rule as to the intent. In
controversies between private parties the quo animo with which a thing was done is sometimes
important, not always; but crime proceeds only from a criminal mind. So that —

There can be no crime, large or small, without an evil mind. In other words, punishment is the
sentence of wickedness, without which it can not be. And neither in philosophical speculation nor in
religious or mortal sentiment would any people in any age allow that a man should be deemed guilty
unless his mind was so. It is therefore a principle of our legal system, as probably it is of every other,
that the essence of an offense is the wrongful intent, without which it can not exists. We find this
doctrine confirmed by —

Legal maxims. — The ancient wisdom of the law, equally with the modern, is distinct on this subject.
It consequently has supplied to us such maxims as Actus non facit reum nisi mens sit rea, "the act
itself does not make man guilty unless his intention were so;" Actus me incito factus non est meus
actus, "an act done by me against my will is not my act;" and others of the like sort. In this, as just
said, criminal jurisprudence differs from civil. So also —

Moral science and moral sentiment teach the same thing. "By reference to the intention, we inculpate
or exculpate others or ourselves without any respect to the happiness or misery actually produced.
Let the result of an action be what it may, we hold a man guilty simply on the ground of intention; or,
on the dame ground, we hold him innocent." The calm judgment of mankind keeps this doctrine
among its jewels. In times of excitement, when vengeance takes the place of justice, every guard
around the innocent is cast down. But with the return of reason comes the public voice that where
the mind is pure, he who differs in act from his neighbors does not offend. And —

In the spontaneous judgment which springs from the nature given by God to man, no one deems
another to deserve punishment for what he did from an upright mind, destitute of every form of evil.

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 And whenever a person is made to suffer a punishment which the community deems not his due, so
far from its placing an evil mark upon him, it elevates him to the seat of the martyr. Even infancy itself
spontaneously pleads the want of bad intent in justification of what has the appearance of wrong,
with the utmost confidence that the plea, if its truth is credited, will be accepted as good. Now these
facts are only the voice of nature uttering one of her immutable truths. It is, then, the doctrine of the
law, superior to all other doctrines, because first in nature from which the law itself proceeds, that no
man is to be punished as a criminal unless his intent is wrong. (Bishop's New Criminal Law, vol. 1, secs.
286 to 290.)

Compelled by necessity, "the great master of all things," an apparent departure from this doctrine of abstract
justice result from the adoption of the arbitrary rule that Ignorantia juris non excusat ("Ignorance of the law
excuses no man"), without which justice could not be administered in our tribunals; and compelled also by the
same doctrine of necessity, the courts have recognized the power of the legislature to forbid, in a limited class
of cases, the doing of certain acts, and to make their commission criminal without regard to the intent of the
doer. Without discussing these exceptional cases at length, it is sufficient here to say that the courts have
always held that unless the intention of the lawmaker to make the commission of certain acts criminal without
regard to the intent of the doer is clear and beyond question the statute will not be so construed (cases cited
in Cyc., vol. 12, p. 158, notes 76 and 77); and the rule that ignorance of the law excuses no man has been said
not to be a real departure from the law's fundamental principle that crime exists only where the mind is at
fault, because "the evil purpose need not be to break the law, and if suffices if it is simply to do the thing which
the law in fact forbids." (Bishop's New Criminal Law, sec. 300, and cases cited.)

But, however this may be, there is no technical rule, and no pressing necessity therefore, requiring mistake in
fact to be dealt with otherwise that in strict accord with the principles of abstract justice. On the contrary, the
maxim here is Ignorantia facti excusat ("Ignorance or mistake in point of fact is, in all cases of supposed
offense, a sufficient excuse"). (Brown's Leg. Max., 2d ed., 190.)

Since evil intent is in general an inseparable element in every crime, any such mistake of fact as shows the act
committed to have proceeded from no sort of evil in the mind necessarily relieves the actor from criminal
liability provided always there is no fault or negligence on his part; and as laid down by Baron Parke, "The guilt
of the accused must depend on the circumstances as they appear to him." (Reg. vs. Thurborn, 1 Den. C., 387;
P. vs. Anderson, 44 Cal.., 65; P. vs. Lamb, 54 Barb., 342; Yates vs. P., 32 N. Y., 509; Patterson vs. P., 46 Barb.,
625; Reg. vs. Cohen, 8 Cox C. C., 41; P. vs. Miles, 55 Cal., 207, 209; Nalley vs. S., 28 Tex. Ap., 387.) That is to say,
the question as to whether he honestly, in good faith, and without fault or negligence fell into the mistake is to
be determined by the circumstances as they appeared to him at the time when the mistake was made, and the
effect which the surrounding circumstances might reasonably be expected to have on his mind, in forming the
intent, criminal or other wise, upon which he acted.

If, in language not uncommon in the cases, one has reasonable cause to believe the existence of facts
which will justify a killing — or, in terms more nicely in accord with the principles on which the rule is
founded, if without fault or carelessness he does believe them — he is legally guiltless of the
homicide; though he mistook the facts, and so the life of an innocent person is unfortunately
extinguished. In other words, and with reference to the right of self-defense and the not quite
harmonious authorities, it is the doctrine of reason and sufficiently sustained in adjudication, that
notwithstanding some decisions apparently adverse, whenever a man undertakes self-defense, he is
justified in acting on the facts as they appear to him. If, without fault or carelessness, he is misled
concerning them, and defends himself correctly according to what he thus supposes the facts to be
the law will not punish him though they are in truth otherwise, and he was really no occassion for the
extreme measures. (Bishop's New Criminal Law, sec. 305, and large array of cases there cited.)

The common illustration in the American and English textbooks of the application of this rule is the case where
a man, masked and disguised as a footpad, at night and on a lonely road, "holds up" his friends in a spirit of
mischief, and with leveled pistol demands his money or his life, but is killed by his friend under the mistaken
belief that the attack is a real one, that the pistol leveled at his head is loaded, and that his life and property
are in imminent danger at the hands of the aggressor. No one will doubt that if the facts were such as the
slayer believed them to be he would be innocent of the commission of any crime and wholly exempt from

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criminal liability, although if he knew the real state of the facts when he took the life of his friend he would
undoubtedly be guilty of the crime of homicide or assassination. Under such circumstances, proof of his
innocent mistake of the facts overcomes the presumption of malice or criminal intent, and (since malice or
criminal intent is a necessary ingredient of the "act punished by law" in cases of homicide or assassination)
overcomes at the same time the presumption established in article 1 of the code, that the "act punished by
law" was committed "voluntarily."

Parson, C.J., in the Massachusetts court, once said:

If the party killing had reasonable grounds for believing that the person slain had a felonious design
against him, and under that supposition killed him, although it should afterwards appear that there
was no such design, it will not be murder, but it will be either manslaughter or excusable homicide,
according to the degree of caution used and the probable grounds of such belief. (Charge to the grand
jury in Selfridge's case, Whart, Hom., 417, 418, Lloyd's report of the case, p.7.)

In this case, Parker, J., charging the petit jury, enforced the doctrine as follows:

A, in the peaceable pursuit of his affairs, sees B rushing rapidly toward him, with an outstretched
arms and a pistol in his hand, and using violent menaces against his life as he advances. Having
approached near enough in the same attitude, A, who has a club in his hand, strikes B over the head
before or at the instant the pistol is discharged; and of the wound B dies. It turns out the pistol was
loaded with powder only, and that the real design of B was only to terrify A. Will any reasonable man
say that A is more criminal that he would have been if there had been a bullet in the pistol? Those
who hold such doctrine must require that a man so attacked must, before he strikes the assailant,
stop and ascertain how the pistol is loaded — a doctrine which would entirely take away the essential
right of self-defense. And when it is considered that the jury who try the cause, and not the party
killing, are to judge of the reasonable grounds of his apprehension, no danger can be supposed to
flow from this principle. (Lloyd's Rep., p. 160.)

To the same effect are various decisions of the supreme court of Spain, cited by Viada, a few of which are here
set out in full because the facts are somewhat analogous to those in the case at bar.

QUESTION III. When it is shown that the accused was sitting at his hearth, at night, in company only of
his wife, without other light than reflected from the fire, and that the man with his back to the door
was attending to the fire, there suddenly entered a person whom he did not see or know, who struck
him one or two blows, producing a contusion on the shoulder, because of which he turned, seized the
person and took from his the stick with which he had undoubtedly been struck, and gave the
unknown person a blow, knocking him to the floor, and afterwards striking him another blow on the
head, leaving the unknown lying on the floor, and left the house. It turned out the unknown person
was his father-in-law, to whom he rendered assistance as soon as he learned his identity, and who
died in about six days in consequence of cerebral congestion resulting from the blow. The accused,
who confessed the facts, had always sustained pleasant relations with his father-in-law, whom he
visited during his sickness, demonstrating great grief over the occurrence. Shall he be considered free
from criminal responsibility, as having acted in self-defense, with all the circumstances related in
paragraph 4, article 8, of the Penal Code? The criminal branch of the Audiencia of Valladolid found
that he was an illegal aggressor, without sufficient provocation, and that there did not exists rational
necessity for the employment of the force used, and in accordance with articles 419 and 87 of the
Penal Code condemned him to twenty months of imprisonment, with accessory penalty and costs.
Upon appeal by the accused, he was acquitted by the supreme court, under the following sentence:
"Considering, from the facts found by the sentence to have been proven, that the accused was
surprised from behind, at night, in his house beside his wife who was nursing her child, was attacked,
struck, and beaten, without being able to distinguish with which they might have executed their
criminal intent, because of the there was no other than fire light in the room, and considering that in
such a situation and when the acts executed demonstrated that they might endanger his existence,
and possibly that of his wife and child, more especially because his assailant was unknown, he should
have defended himself, and in doing so with the same stick with which he was attacked, he did not

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 exceed the limits of self-defense, nor did he use means which were not rationally necessary,
particularly because the instrument with which he killed was the one which he took from his
assailant, and was capable of producing death, and in the darkness of the house and the consteration
which naturally resulted from such strong aggression, it was not given him to known or distinguish
whether there was one or more assailants, nor the arms which they might bear, not that which they
might accomplish, and considering that the lower court did not find from the accepted facts that
there existed rational necessity for the means employed, and that it did not apply paragraph 4 of
article 8 of the Penal Code, it erred, etc." (Sentence of supreme court of Spain, February 28, 1876.)
(Viada, Vol. I, p. 266.) .

QUESTION XIX. A person returning, at night, to his house, which was situated in a retired part of the
city, upon arriving at a point where there was no light, heard the voice of a man, at a distance of some
8 paces, saying: "Face down, hand over you money!" because of which, and almost at the same
money, he fired two shots from his pistol, distinguishing immediately the voice of one of his friends
(who had before simulated a different voice) saying, "Oh! they have killed me," and hastening to his
assistance, finding the body lying upon the ground, he cried, "Miguel, Miguel, speak, for God's sake,
or I am ruined," realizing that he had been the victim of a joke, and not receiving a reply, and
observing that his friend was a corpse, he retired from the place. Shall he be declared exempt in toto
from responsibility as the author of this homicide, as having acted in just self-defense under the
circumstances defined in paragraph 4, article 8, Penal Code? The criminal branch of the Audiencia of
Malaga did not so find, but only found in favor of the accused two of the requisites of said article, but
not that of the reasonableness of the means employed to repel the attack, and, therefore,
condemned the accused to eight years and one day of prison mayor, etc. The supreme court
acquitted the accused on his appeal from this sentence, holding that the accused was acting under a
justifiable and excusable mistake of fact as to the identity of the person calling to him, and that under
the circumstances, the darkness and remoteness, etc., the means employed were rational and the
shooting justifiable. (Sentence supreme court, March 17, 1885.) (Viada, Vol. I, p. 136.)

QUESTION VI. The owner of a mill, situated in a remote spot, is awakened, at night, by a large stone
thrown against his window — at this, he puts his head out of the window and inquires what is
wanted, and is answered "the delivery of all of his money, otherwise his house would be burned" —
because of which, and observing in an alley adjacent to the mill four individuals, one of whom
addressed him with blasphemy, he fired his pistol at one the men, who, on the next morning was
found dead on the same spot. Shall this man be declared exempt from criminal responsibility as
having acted in just self-defense with all of the requisites of law? The criminal branch of the requisites
of law? The criminal branch of the Audiencia of Zaragoza finds that there existed in favor of the
accused a majority of the requisites to exempt him from criminal responsibility, but not that of
reasonable necessity for the means, employed, and condemned the accused to twelve months
of prision correctional for the homicide committed. Upon appeal, the supreme court acquitted the
condemned, finding that the accused, in firing at the malefactors, who attack his mill at night in a
remote spot by threatening robbery and incendiarism, was acting in just self-defense of his person,
property, and family. (Sentence of May 23, 1877). (I Viada, p. 128.)

A careful examination of the facts as disclosed in the case at bar convinces us that the defendant Chinaman
struck the fatal blow alleged in the information in the firm belief that the intruder who forced open the door of
his sleeping room was a thief, from whose assault he was in imminent peril, both of his life and of his property
and of the property committed to his charge; that in view of all the circumstances, as they must have
presented themselves to the defendant at the time, he acted in good faith, without malice, or criminal intent,
in the belief that he was doing no more than exercising his legitimate right of self-defense; that had the facts
been as he believed them to be he would have been wholly exempt from criminal liability on account of his
act; and that he can not be said to have been guilty of negligence or recklessness or even carelessness in falling
into his mistake as to the facts, or in the means adopted by him to defend himself from the imminent danger
which he believe threatened his person and his property and the property under his charge.

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The judgment of conviction and the sentence imposed by the trial court should be reversed, and the
defendant acquitted of the crime with which he is charged and his bail bond exonerated, with the costs of
both instance de oficio. So ordered.

Johnson Moreland and Elliott, JJ., concur.

Arellano, C.J., and Mapa, J., dissent.

Separate Opinions

TORRES, J., dissenting:

The writer, with due respect to the opinion of the majority of the court, believes that, according to the merits
of the case, the crime of homicide by reckless negligence, defined and punishes in article 568 of the Penal
Code, was committed, inasmuch as the victim was wilfully (voluntariomente) killed, and while the act was done
without malice or criminal intent it was, however, executed with real negligence, for the acts committed by
the deceased could not warrant the aggression by the defendant under the erroneous belief on the part of the
accused that the person who assaulted him was a malefactor; the defendant therefore incurred responsibility
in attacking with a knife the person who was accustomed to enter said room, without any justifiable motive.

By reason of the nature of the crime committed, in the opinion of the undersigned the accused should be
sentenced to the penalty of one year and one month of prision correctional, to suffer the accessory penalties
provided in article 61, and to pay an indemnify of P1,000 to the heirs of the deceased, with the costs of both
instances, thereby reversing the judgment appealed from.

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G.R. No. L-47722 July 27, 1943

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ANTONIO Z. OANIS and ALBERTO GALANTA, defendants-appellants.

Antonio Z. Oanis in his own behalf.

Maximo L. Valenzuela for appellant Galanta.
Acting Solicitor-General Ibañez and Assistant Attorney Torres for appellee.

MORAN, J.:

Charged with the crime of murder of one Serapio Tecson, the accused Antonio Z. Oanis and Alberto Galanta,
chief of police of Cabanatuan and corporal of the Philippine Constabulary, respectively, were, after due trial,
found guilty by the lower court of homicide through reckless imprudence and were sentenced each to an
indeterminate penalty of from one year and six months to two years and two months of prison
correccional and to indemnify jointly and severally the heirs of the deceased in the amount of P1,000.
Defendants appealed separately from this judgment.

In the afternoon of December 24, 1938. Captain Godofredo Monsod, Constabulary Provincial Inspector at
Cabanatuan, Nueva Ecija, received from Major Guido a telegram of the following tenor: "Information received
escaped convict Anselmo Balagtas with bailarina and Irene in Cabanatuan get him dead or alive." Captain
Monsod accordingly called for his first sergeant and asked that he be given four men. Defendant corporal
Alberto Galanta, and privates Nicomedes Oralo, Venancio Serna and D. Fernandez, upon order of their
sergeant, reported at the office of the Provincial Inspector where they were shown a copy of the above-
quoted telegram and a newspaper clipping containing a picture of Balagtas. They were instructed to arrest
Balagtas and, if overpowered, to follow the instruction contained in the telegram. The same instruction was
given to the chief of police Oanis who was likewise called by the Provincial Inspector. When the chief of police
was asked whether he knew one Irene, a bailarina, he answered that he knew one of loose morals of the same
name. Upon request of the Provincial Inspector, the chief of police tried to locate some of his men to guide the
constabulary soldiers in ascertaining Balagtas' whereabouts, and failing to see anyone of them he volunteered
to go with the party. The Provincial Inspector divided the party into two groups with defendants Oanis and
Galanta, and private Fernandez taking the route to Rizal street leading to the house where Irene was
supposedly living. When this group arrived at Irene's house, Oanis approached one Brigida Mallare, who was
then stripping banana stalks, and asked her where Irene's room was. Brigida indicated the place and upon
further inquiry also said that Irene was sleeping with her paramour. Brigida trembling, immediately returned
to her own room which was very near that occupied by Irene and her paramour. Defendants Oanis and
Galanta then went to the room of Irene, and an seeing a man sleeping with his back towards the door where
they were, simultaneously or successively fired at him with their .32 and .45 caliber revolvers. Awakened by
the gunshots, Irene saw her paramour already wounded, and looking at the door where the shots came, she
saw the defendants still firing at him. Shocked by the entire scene. Irene fainted; it turned out later that the
person shot and killed was not the notorious criminal Anselmo Balagtas but a peaceful and innocent citizen
named Serapio Tecson, Irene's paramour. The Provincial Inspector, informed of the killing, repaired to the
scene and when he asked as to who killed the deceased. Galanta, referring to himself and to Oanis, answered:
"We two, sir." The corpse was thereafter brought to the provincial hospital and upon autopsy by Dr. Ricardo
de Castro, multiple gunshot wounds inflicted by a .32 and a .45 caliber revolvers were found on Tecson's body
which caused his death.

These are the facts as found by the trial court and fully supported by the evidence, particularly by the
testimony of Irene Requinea. Appellants gave, however, a different version of the tragedy. According to
Appellant Galanta, when he and chief of police Oanis arrived at the house, the latter asked Brigida where
Irene's room was. Brigida indicated the place, and upon further inquiry as to the whereabouts of Anselmo
Balagtas, she said that he too was sleeping in the same room. Oanis went to the room thus indicated and upon
opening the curtain covering the door, he said: "If you are Balagtas, stand up." Tecson, the supposed Balagtas,
and Irene woke up and as the former was about to sit up in bed. Oanis fired at him. Wounded, Tecson leaned
towards the door, and Oanis receded and shouted: "That is Balagtas." Galanta then fired at Tecson.

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On the other hand, Oanis testified that after he had opened the curtain covering the door and after having
said, "if you are Balagtas stand up." Galanta at once fired at Tecson, the supposed Balagtas, while the latter
was still lying on bed, and continued firing until he had exhausted his bullets: that it was only thereafter that
he, Oanis, entered the door and upon seeing the supposed Balagtas, who was then apparently watching and
picking up something from the floor, he fired at him.

The trial court refused to believe the appellants. Their testimonies are certainly incredible not only because
they are vitiated by a natural urge to exculpate themselves of the crime, but also because they are materially
contradictory. Oasis averred that be fired at Tecson when the latter was apparently watching somebody in an
attitudes of picking up something from the floor; on the other hand, Galanta testified that Oasis shot Tecson
while the latter was about to sit up in bed immediately after he was awakened by a noise. Galanta testified
that he fired at Tecson, the supposed Balagtas, when the latter was rushing at him. But Oanis assured that
when Galanta shot Tecson, the latter was still lying on bed. It is apparent from these contradictions that when
each of the appellants tries to exculpate himself of the crime charged, he is at once belied by the other; but
their mutual incriminating averments dovetail with and corroborate substantially, the testimony of Irene
Requinea. It should be recalled that, according to Requinea, Tecson was still sleeping in bed when he was shot
to death by appellants. And this, to a certain extent, is confirmed by both appellants themselves in their
mutual recriminations. According, to Galanta, Oanis shot Tecson when the latter was still in bed about to sit up
just after he was awakened by a noise. And Oanis assured that when Galanta shot Tecson, the latter was still
lying in bed. Thus corroborated, and considering that the trial court had the opportunity to observe her
demeanor on the stand, we believe and so hold that no error was committed in accepting her testimony and in
rejecting the exculpatory pretensions of the two appellants. Furthermore, a careful examination of Irene's
testimony will show not only that her version of the tragedy is not concocted but that it contains all indicia of
veracity. In her cross-examination, even misleading questions had been put which were unsuccessful, the
witness having stuck to the truth in every detail of the occurrence. Under these circumstances, we do not feel
ourselves justified in disturbing the findings of fact made by the trial court.

The true fact, therefore, of the case is that, while Tecson was sleeping in his room with his back towards the
door, Oanis and Galanta, on sight, fired at him simultaneously or successively, believing him to be Anselmo
Balagtas but without having made previously any reasonable inquiry as to his identity. And the question is
whether or not they may, upon such fact, be held responsible for the death thus caused to Tecson. It is
contended that, as appellants acted in innocent mistake of fact in the honest performance of their official
duties, both of them believing that Tecson was Balagtas, they incur no criminal liability. Sustaining this theory
in part, the lower court held and so declared them guilty of the crime of homicide through reckless
imprudence. We are of the opinion, however, that, under the circumstances of the case, the crime committed
by appellants is murder through specially mitigated by circumstances to be mentioned below.

In support of the theory of non-liability by reasons of honest mistake of fact, appellants rely on the case of U.S.
v. Ah Chong, 15 Phil., 488. The maxim is ignorantia facti excusat, but this applies only when the mistake is
committed without fault or carelessness. In the Ah Chong case, defendant therein after having gone to bed
was awakened by someone trying to open the door. He called out twice, "who is there," but received no
answer. Fearing that the intruder was a robber, he leaped from his bed and called out again., "If you enter the
room I will kill you." But at that precise moment, he was struck by a chair which had been placed against the
door and believing that he was then being attacked, he seized a kitchen knife and struck and fatally wounded
the intruder who turned out to be his room-mate. A common illustration of innocent mistake of fact is the case
of a man who was marked as a footpad at night and in a lonely road held up a friend in a spirit of mischief, and
with leveled, pistol demanded his money or life. He was killed by his friend under the mistaken belief that the
attack was real, that the pistol leveled at his head was loaded and that his life and property were in imminent
danger at the hands of the aggressor. In these instances, there is an innocent mistake of fact committed
without any fault or carelessness because the accused, having no time or opportunity to make a further
inquiry, and being pressed by circumstances to act immediately, had no alternative but to take the facts as
they then appeared to him, and such facts justified his act of killing. In the instant case, appellants, unlike the
accused in the instances cited, found no circumstances whatsoever which would press them to immediate
action. The person in the room being then asleep, appellants had ample time and opportunity to ascertain his
identity without hazard to themselves, and could even effect a bloodless arrest if any reasonable effort to that
end had been made, as the victim was unarmed, according to Irene Requinea. This, indeed, is the only

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legitimate course of action for appellants to follow even if the victim was really Balagtas, as they were
instructed not to kill Balagtas at sight but to arrest him, and to get him dead or alive only if resistance or
aggression is offered by him.

Although an officer in making a lawful arrest is justified in using such force as is reasonably necessary to secure
and detain the offender, overcome his resistance, prevent his escape, recapture him if he escapes, and protect
himself from bodily harm (People vs. Delima, 46 Phil, 738), yet he is never justified in using unnecessary force
or in treating him with wanton violence, or in resorting to dangerous means when the arrest could be effected
otherwise (6 C.J.S., par. 13, p. 612). The doctrine is restated in the new Rules of Court thus: "No unnecessary or
unreasonable force shall be used in making an arrest, and the person arrested shall not be subject to any
greater restraint than is necessary for his detention." (Rule 109, sec. 2, par. 2). And a peace officer cannot
claim exemption from criminal liability if he uses unnecessary force or violence in making an arrest (5 C.J., p.
753; U.S. vs. Mendoza, 2 Phil., 109). It may be true that Anselmo Balagtas was a notorious criminal, a life-
termer, a fugitive from justice and a menace to the peace of the community, but these facts alone constitute
no justification for killing him when in effecting his arrest, he offers no resistance or in fact no resistance can
be offered, as when he is asleep. This, in effect, is the principle laid down, although upon different facts, in
U.S. vs. Donoso (3 Phil., 234, 242).

It is, however, suggested that a notorious criminal "must be taken by storm" without regard to his right to life
which he has by such notoriety already forfeited. We may approve of this standard of official conduct where
the criminal offers resistance or does something which places his captors in danger of imminent attack.
Otherwise we cannot see how, as in the present case, the mere fact of notoriety can make the life of a criminal
a mere trifle in the hands of the officers of the law. Notoriety rightly supplies a basis for redoubled official
alertness and vigilance; it never can justify precipitate action at the cost of human life. Where, as here, the
precipitate action of the appellants has cost an innocent life and there exist no circumstances whatsoever to
warrant action of such character in the mind of a reasonably prudent man, condemnation — not condonation
— should be the rule; otherwise we should offer a premium to crime in the shelter of official actuation.

The crime committed by appellants is not merely criminal negligence, the killing being intentional and not
accidental. In criminal negligence, the injury caused to another should be unintentional, it being simply the
incident of another act performed without malice. (People vs. Sara, 55 Phil., 939). In the words of Viada, "para
que se celifique un hecho de imprudencia es preciso que no haya mediado en el malicia ni intencion alguna de
dañar; existiendo esa intencion, debera calificarse el hecho del delito que ha producido, por mas que no haya
sido la intencion del agente el causar un mal de tanta gravedad como el que se produjo." (Tomo 7, Viada
Codigo Penal Comentado, 5.a ed. pag. 7). And, as once held by this Court, a deliberate intent to do an unlawful
act is essentially inconsistent with the idea of reckless imprudence (People vs. Nanquil, 43 Phil., 232;
People vs. Bindor, 56 Phil., 16), and where such unlawful act is wilfully done, a mistake in the identity of the
intended victim cannot be considered as reckless imprudence (People vs. Gona, 54 Phil., 605) to support a plea
of mitigated liability.

As the deceased was killed while asleep, the crime committed is murder with the qualifying circumstance
of alevosia. There is, however, a mitigating circumstance of weight consisting in the incomplete justifying
circumstance defined in article 11, No. 5, of the Revised Penal Code. According to such legal provision, a
person incurs no criminal liability when he acts in the fulfillment of a duty or in the lawful exercise of a right or
office. There are two requisites in order that the circumstance may be taken as a justifying one: (a) that the
offender acted in the performance of a duty or in the lawful exercise of a right; and (b) that the injury or
offense committed be the necessary consequence of the due performance of such duty or the lawful exercise
of such right or office. In the instance case, only the first requisite is present — appellants have acted in the
performance of a duty. The second requisite is wanting for the crime by them committed is not the necessary
consequence of a due performance of their duty. Their duty was to arrest Balagtas or to get him dead or alive
if resistance is offered by him and they are overpowered. But through impatience or over-anxiety or in their
desire to take no chances, they have exceeded in the fulfillment of such duty by killing the person whom they
believed to be Balagtas without any resistance from him and without making any previous inquiry as to his
identity. According to article 69 of the Revised Penal Code, the penalty lower by one or two degrees than that
prescribed by law shall, in such case, be imposed.

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JC ISIDRO
For all the foregoing, the judgment is modified and appellants are hereby declared guilty of murder with the
mitigating circumstance above mentioned, and accordingly sentenced to an indeterminate penalty of from five
(5) years of prision correctional to fifteen (15) years of reclusion temporal, with the accessories of the law, and
to pay the heirs of the deceased Serapio Tecson jointly and severally an indemnity of P2,000, with costs.

Yulo, C.J., Bocobo, Generoso and Lopez Vito, A., concur.

Separate Opinions

PARAS, J., dissenting:

Anselmo Balagtas, a life termer and notorious criminal, managed to escape and flee form Manila to the
provinces. Receiving information to the effect that he was staying with one Irene in Cabanatuan, Nueva Ecija,
the office of the Constabulary in Manila ordered the Provincial Inspector in Cabanatuan by telegram
dispatched on December 25, 1938, to get Balagtas "dead or alive". Among those assigned to the task of
carrying out the said order, were Antonio Z. Oanis, chief of police of Cabanatuan, and Alberto Galanta, a
Constabulary corporal, to whom the telegram received by the Provincial Inspector and a newspaper picture of
Balagtas were shown. Oanis, Galanta and a Constabulary private, after being told by the Provincial Inspector to
gather information about Balagtas, "to arrest him and, if overpowered, to follow the instructions contained in
the telegram," proceeded to the place where the house of Irene was located. Upon arriving thereat, Oanis
approached Brigida Mallari, who was then gathering banana stalks in the yard, and inquired for the room of
Irene. After Mallari had pointed out the room, she was asked by Oanis to tell where Irene's paramour,
Balagtas, was, whereupon Mallari answered that he was sleeping with Irene. Upon reaching the room
indicated, Oanis and Galanta, after the former had shouted "Stand up, if you are Balagtas," started shooting
the man who was found by them lying down beside a woman. The man was thereby killed, but Balagtas was
still alive, for it turned out that the person shot by Oanis and Galanta was one Serapio Tecson.

Consequently, Oanis and Galanta were charged with having committed murder. The Court of First Instance of
Nueva Ecija, however, convicted them only of homicide through reckless imprudence and sentenced them
each to suffer the indeterminate penalty of from 1 year and 6 months to 2 years and 2 months of prision
correctional, to jointly and severally indemnify the heirs of Serapio Tecson in the amount of P1,000, and to pay
the costs. Oanis and Galanta have appealed.

In accomplishing the acts with which the appellants were charged, they undoubtedly followed the order issued
by the Constabulary authorities in Manila requiring the Provincial Inspector in Cabanatuan to get Balagtas
dead or alive, in the honest belief that Serapio Tecson was Anselmo Balagtas. As the latter became a fugitive
criminal, with revolvers in his possession and a record that made him extremely dangerous and a public terror,
the Constabulary authorities were justified in ordering his arrest, whether dead or alive. In view of said order
and the danger faced by the appellants in carrying it out, they cannot be said to have acted feloniously in
shooting the person honestly believed by them to be the wanted man. Conscious of the fact that Balagtas
would rather kill than be captured, the appellants did not want to take chances and should not be penalized
for such prudence. On the contrary, they should be commended for their bravery and courage bordering on
recklessness because, without knowing or ascertaining whether the wanted man was in fact asleep in his
room, they proceeded thereto without hesitation and thereby exposed their lives to danger.

The Solicitor-General, however, contends that the appellants were authorized to use their revolvers only after
being overpowered by Balagtas. In the first place, the alleged instruction by the Provincial Inspector to that
effect, was in violation of the express order given by the Constabulary authorities in Manila and which was
shown to the appellants. In the second place, it would indeed be suicidal for the appellants or, for that matter,
any agent of the authority to have waited until they have been overpowered before trying to put our such a
character as Balagtas. In the third place, it is immaterial whether or not the instruction given by the Provincial
Inspector was legitimate and proper, because the facts exist that the appellants acted in conformity with the
express order of superior Constabulary authorities, the legality or propriety of which is not herein questioned.

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The theory of the prosecution has acquired some plausibility, though quite psychological or sentimental, in
view only of the fact that it was not Balagtas who was actually killed, but an "innocent man . . . while he was
deeply asleep." Anybody's heart will be profoundly grieved by the trade, but in time will be consoled by the
realization that the life of Serapio Tecson was not vainly sacrificed, for the incident will always serve as a loud
warning to any one desiring to follow in the footsteps of Anselmo Balagtas that in due time the duly
constituted authorities will, upon proper order, enforce the summary forfeiture of his life.

In my opinion, therefore, the appellants are not criminally liable if the person killed by them was in fact
Anselmo Balagtas for the reason that they did so in the fulfillment of their duty and in obedience to an order
issued by a superior for some lawful purpose (Revised Penal Code, art. 11, pars. 5 and 6). They also cannot be
held criminally liable even if the person killed by them was not Anselmo Balagtas, but Serapio Tecson, because
they did so under an honest mistake of fact not due to negligence or bad faith. (U.S. vs. Ah Chong, 15 Phil.,
488).

It is true that, under article 4 of the Revised Penal Code, criminal liability is incurred by any person committing
a felony although the wrongful act done be different from that which he intended; but said article is clearly
inapplicable since the killing of the person who was believed to be Balagtas was, as already stated, not
wrongful or felonious.

The case of U.S. vs. Mendieta (34 Phil., 242), cited by the Solicitor-General, is not in point, inasmuch as the
defendant therein, who intended to injure Hilario Lauigan with whom he had a quarrel, but killed another by
mistake, would not be exempted from criminal liability if he actually injured or killed Hilario Lauigan, there
being a malicious design on his part. The other case involved by the prosecution is U.S. vs. Donoso (3 Phil.,
234). This is also not in point, as it appears that the defendants therein killed one Pedro Almasan after he had
already surrendered and allowed himself to be bound and that the said defendants did not have lawful
instructions from superior authorities to capture Almasan dead or alive.

The appealed judgment should therefore be reversed and the appellants, Antonio Z. Oanis and Alberto
Galanta, acquitted, with costs de oficio.

HONTIVEROS, J., dissenting:

According to the opinion of the majority, it is proper to follow the rule that a notorious criminal "must be
taken by storm without regard to his life which he has, by his conduct, already forfeited," whenever said
criminal offers resistance or does something which places his captors in danger of imminent attack. Precisely,
the situation which confronted the accused-appellants Antonio Z. Oanis and Alberto Galanta in the afternoon
of December 24, 1938, was very similar to this. It must be remembered that both officers received instructions
to get Balagtas "dead or alive" and according to the attitude of not only the said appellants but also of Capt.
Monsod, constabulary provincial inspector of Nueva Ecija, it may be assumed that said instructions gave more
emphasis to the first part; namely, to take him dead. It appears in the record that after the shooting, and
having been informed of the case, Capt. Monsod stated that Oanis and Galanta might be decorated for what
they had done. That was when all parties concerned honestly believed that the dead person was Balagtas
himself, a dangerous criminal who had escaped from his guards and was supposedly armed with a .45 caliber
pistol Brigida Mallari, the person whom the appellants met upon arriving at the house of Irene Requinea,
supposed mistress of Balagtas, informed them that said Balagtas was upstairs. Appellants found there asleep a
man closely resembling the wanted criminal. Oanis said: If you are Balagtas stand up," But the supposed
criminal showed his intention to attack the appellants, a conduct easily explained by the fact that he should
have felt offended by the intrusion of persons in the room where he was peacefully lying down with his
mistress. In such predicament, it was nothing but human on the part of the appellants to employ force and to
make use of their weapons in order to repel the imminent attack by a person who, according to their belief,
was Balagtas It was unfortunate, however that an innocent man was actually killed. But taking into
consideration the facts of the case, it is, according to my humble opinion, proper to apply herein the doctrine
laid down in the case of U.S. vs. Ah Chong (15 Phil., 488). In the instant case we have, as in the case supra, an
innocent mistake of fact committed without any fault or carelessness on the part of the accused, who having
no time to make a further inquiry, had no alternative but to take the facts as they appeared to them and act
immediately.

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The decision of the majority, in recognition of the special circumstances of this case which favored the
accused-appellants, arrives at the conclusion that an incomplete justifying circumstance may be invoked, and
therefore, according to Article 69 of the Revised Penal Code, the imposable penalty should be one which is
lower by one or two degrees than that prescribed by law. This incomplete justifying circumstance is that
defined in Article 11, No. 5 of the Revised Penal Code, in favor of "a person who acts in the fulfillment of a duty
or in the lawful exercise of a right or office." I believe that the application of this circumstance is not proper.
Article 69 of the Revised Penal Code provides as follows:

Art. 69. Penalty to be imposed when the crime committed is not wholly excusable. — A penalty lower
by one or two degrees than that prescribed by law shall be imposed if the deed is not wholly
excusable by reason of the lack of some of the conditions required to justify the same or to exempt
from criminal liability in the several cases mentioned in articles 11 and 12, provided that the majority
of such conditions be present. The courts shall impose the penalty in the period which may be
deemed proper, in view of the number and nature of the conditions of exemption present or lacking.

This provision has been copied almost verbatim from Article 84 of the old Penal Code of the Philippines, and
which was also taken from Article 87 of the Spanish Penal Code of 1870.

Judge Guillermo Guevara, one of the members of the Committee created by Administrative Order No. 94 of
the Department of Justice for the drafting of the Revised Penal Code, in commenting on Article 69, said that
the justifying circumstances and circumstances exempting from liability which are the subject matter of this
article are the following: self-defense, defense of relatives, defense of strangers, state of necessity and injury
caused by mere accident. Accordingly, justifying circumstance No. 5 of Article 11 dealing with the fulfillment of
a duty or the lawful exercise of a right, calling or office, cannot be placed within its scope.

The eminent treatiser of criminal law Mr. Groizard, in his commentary of Article 87 of the Spanish Penal Code
of 1870 which is the source of Article 69 of our Code says:

Ni tratandose de la imbecilidad, ni de la locura, ni de la menor edad, ni del que obra violentado por
una fuerza inrresistible o impulsado por miedo insuperable de un mal igual o mayor, o en
cumplimiento de un deber, o en el ejercito legitimo de un derecho, oficio o cargo, o en virtud de
obediencia debida, ni del que incurre en alguna omision hallandose impedido por causa legitima o
insuperable, puede tener aplicacion al articulo que comentamos. Y la razon es obvia. En ninguna de
estas execiones hay pluralidad de requisitos. La irrespondabilidad depende de una sola condicion. Hay
o no perturbacion de la razon; el autor del hecho es o no menor de nueve años; existe o no violencia
material o moral irresistible, etc., etc.; tal es lo que respectivamente hay que examinar y resolver para
declarar la culpabilidad o inculpabilidad. Es, por lo tanto, imposible que acontezca lo que el texto que
va al frente de estas lineas rquiere, para que se imponga al autor del hecho la penalidad excepcional
que establece; esto es, que falten algunos requisitos de los que la ley exige para eximir de
responsabilidad, y que concurran el mayor numero de ellos, toda vez que, en los casos referidos, la ley
no exige multiples condiciones.

It must be taken into account the fact according to Article 69 a penalty lower by one or two degrees than that
prescribed by law shall be imposed if the deed is not wholly excusable by reason of the lack of some of the
conditions required by the law to justify the same or exempt from criminal liability. The word "conditions"
should not be confused with the word "requisites". In dealing with justifying circumstance No. 5 Judge Guevara
states: "There are two requisites in order that this circumstance may be taken into account: (a) That the
offender acted in the performance of his duty or in the lawful exercise of a right; and (b) That the injury or
offense committed be the necessary consequence of the performance of a duty or the lawful exercise of a
right or office." It is evident that these two requisites concur in the present case if we consider the intimate
connection between the order given to the appellant by Capt. Monsod, the showing to them of the telegram
from Manila to get Balagtas who was with a bailarina named Irene, the conduct of said appellants in
questioning Brigida Mallari and giving a warning to the supposed criminal when both found him with Irene,
and the statement made by Capt. Monsod after the shooting.

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If appellant Oanis is entitled to a reversal of the decision of the court below, there are more reasons in favor of
the acquittal of appellant Galanta. According to the evidence no bullet from the gun fired by this accused ever
hit Serapio Tecson. Galanta was armed in the afternoon of December 24, 1938, with a .45 caliber revolver
(Exhibit L). He so testified and was corroborated by the unchallenged testimony of his superior officer Sgt.
Valeriano Serafica. According to this witness, since Galanta was made a corporal of the Constabulary he was
given, as part of his equipment, revolver Exhibit L with a serial No. 37121. This gun had been constantly used
by Galanta, and, according to Sgt. Pedro Marasigan, who accompanied said accused when he took it from his
trunk in the barracks on the night of December 24, 1938, upon order of Captain Monsod, it was the same
revolver which was given to the witness with five .45 caliber bullets and one empty shell. Fourteen unused
bullets were also taken from Galanta by Sergeant Serafica, thus completing his regular equipment of twenty
bullets which he had on the morning of December 24, 1938, when Sergeant Serafica made the usual inspection
of the firearms in the possession of the non-commissioned officers and privates of the constabulary post at
Cabanatuan. Galanta stated that he had fired only one shot and missed. This testimony is corroborated by that
of a ballistic expert who testified that bullets exhibits F and O, — the first being extracted from the head of the
deceased, causing wound No. 3 of autopsy report Exhibit C and the second found at the place of the shooting,
— had not been fired from revolver Exhibit L nor from any other revolver of the constabulary station in
Cabanatuan. It was impossible for the accused Galanta to have substituted his revolver because when Exhibit L
was taken from him nobody in the barracks doubted that the deceased was none other than Balagtas.
Moreover, Exhibit L was not out of order and therefore there was no reason why Galanta should carry along
another gun, according to the natural course of things. On the other hand, aside from wound No. 3 as above
stated, no other wound may be said to have been caused by a .45 caliber revolver bullet. Doctor Castro's
record gives the conclusion that wound No. 2 must have been caused by a .45 caliber revolver bullet. Doctor
Castro's record gives the conclusion that wound No. 2 must have been caused by a .45 caliber bullet, but
inasmuch as the diameter of the wound's entrance was only 8 mm., the caliber should be .32 and not .45,
because according to the medico-legal expert who testified in this case, a bullet of a .45 caliber will produce a
wound entrance with either 11 mm. or 12 mm. diameter. All other wounds found by the surgeon who
performed the autopsy appeared to have been caused by bullets of a lesser caliber. In consequence, it can be
stated that no bullet fired by Galanta did ever hit or kill Serapio Tecson and therefore there is no reason why
he should be declared criminally responsible for said death.

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G.R. No. 148560 November 19, 2001

JOSEPH EJERCITO ESTRADA, petitioner,

vs.
SANDIGANBAYAN (Third Division) and PEOPLE OF THE PHILIPPINES, respondents.

DECISION

BELLOSILLO, J.:

JOHN STUART MILL, in his essay On Liberty, unleashes the full fury of his pen in defense of the rights of the
individual from the vast powers of the State and the inroads of societal pressure. But even as he draws a
sacrosanct line demarcating the limits on individuality beyond which the State cannot tread - asserting that
"individual spontaneity" must be allowed to flourish with very little regard to social interference - he veritably
acknowledges that the exercise of rights and liberties is imbued with a civic obligation, which society is
justified in enforcing at all cost, against those who would endeavor to withhold fulfillment. Thus he says -

The sole end for which mankind is warranted, individually or collectively, in interfering with the liberty of action
of any of their number, is self-protection. The only purpose for which power can be rightfully exercised over any
member of a civilized community, against his will, is to prevent harm to others.

Parallel to individual liberty is the natural and illimitable right of the State to self-preservation. With the end of
maintaining the integrity and cohesiveness of the body politic, it behooves the State to formulate a system of
laws that would compel obeisance to its collective wisdom and inflict punishment for non-observance.

The movement from Mill's individual liberalism to unsystematic collectivism wrought changes in the social
order, carrying with it a new formulation of fundamental rights and duties more attuned to the imperatives of
contemporary socio-political ideologies. In the process, the web of rights and State impositions became
tangled and obscured, enmeshed in threads of multiple shades and colors, the skein irregular and broken.
Antagonism, often outright collision, between the law as the expression of the will of the State, and the
zealous attempts by its members to preserve their individuality and dignity, inevitably followed. It is when
individual rights are pitted against State authority that judicial conscience is put to its severest test.

Petitioner Joseph Ejercito Estrada, the highest-ranking official to be prosecuted under RA 7080 (An Act
Defining and Penalizing the Crime of Plunder),1 as amended by RA 7659,2 wishes to impress upon us that the
assailed law is so defectively fashioned that it crosses that thin but distinct line which divides the valid from
the constitutionally infirm. He therefore makes a stringent call for this Court to subject the Plunder Law to the
crucible of constitutionality mainly because, according to him, (a) it suffers from the vice of vagueness; (b) it
dispenses with the "reasonable doubt" standard in criminal prosecutions; and, (c) it abolishes the element
of mens rea in crimes already punishable under The Revised Penal Code, all of which are purportedly clear
violations of the fundamental rights of the accused to due process and to be informed of the nature and cause
of the accusation against him.

Specifically, the provisions of the Plunder Law claimed by petitioner to have transgressed constitutional
boundaries are Secs. 1, par. (d), 2 and 4 which are reproduced hereunder:

Section 1. x x x x (d) "Ill-gotten wealth" means any asset, property, business, enterprise or material possession
of any person within the purview of Section Two (2) hereof, acquired by him directly or indirectly through
dummies, nominees, agents, subordinates and/or business associates by any combination or series of the
following means or similar schemes:

(1) Through misappropriation, conversion, misuse, or malversation of public funds or raids on the
public treasury;

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JC ISIDRO
 (2) By receiving, directly or indirectly, any commission, gift, share, percentage, kickbacks or any other
form of pecuniary benefit from any person and/or entity in connection with any government contract
or project or by reason of the office or position of the public office concerned;

(3) By the illegal or fraudulent conveyance or disposition of assets belonging to the National
Government or any of its subdivisions, agencies or instrumentalities, or government owned or
controlled corporations and their subsidiaries;

(4) By obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any other
form of interest or participation including the promise of future employment in any business
enterprise or undertaking;

(5) By establishing agricultural, industrial or commercial monopolies or other combinations and/or

implementation of decrees and orders intended to benefit particular persons or special interests; or

(6) By taking advantage of official position, authority, relationship, connection or influence to unjustly
enrich himself or themselves at the expense and to the damage and prejudice of the Filipino people
and the Republic of the Philippines.

Section 2. Definition of the Crime of Plunder, Penalties. - Any public officer who, by himself or in connivance
with members of his family, relatives by affinity or consanguinity, business associates, subordinates or other
persons, amasses, accumulates or acquires ill-gotten wealth through a combination or series of overt or
criminal acts as described in Section 1 (d) hereof, in the aggregate amount or total value of at least fifty million
pesos (P50,000,000.00) shall be guilty of the crime of plunder and shall be punished by reclusion perpetua to
death. Any person who participated with the said public officer in the commission of an offense contributing to
the crime of plunder shall likewise be punished for such offense. In the imposition of penalties, the degree of
participation and the attendance of mitigating and extenuating circumstances as provided by the Revised Penal
Code shall be considered by the court. The court shall declare any and all ill-gotten wealth and their interests
and other incomes and assets including the properties and shares of stocks derived from the deposit or
investment thereof forfeited in favor of the State (underscoring supplied).

Section 4. Rule of Evidence. - For purposes of establishing the crime of plunder, it shall not be necessary to
prove each and every criminal act done by the accused in furtherance of the scheme or conspiracy to amass,
accumulate or acquire ill-gotten wealth, it being sufficient to establish beyond reasonable doubt a pattern of
overt or criminal acts indicative of the overall unlawful scheme or conspiracy (underscoring supplied).

On 4 April 2001 the Office of the Ombudsman filed before the Sandiganbayan eight (8) separate Informations,
docketed as: (a) Crim. Case No. 26558, for violation of RA 7080, as amended by RA 7659; (b) Crim. Cases Nos.
26559 to 26562, inclusive, for violation of Secs. 3, par. (a), 3, par. (a), 3, par. (e) and 3, par. (e), of RA 3019
(Anti-Graft and Corrupt Practices Act), respectively; (c) Crim. Case No. 26563, for violation of Sec. 7, par. (d), of
RA 6713 (The Code of Conduct and Ethical Standards for Public Officials and Employees); (d) Crim. Case No.
26564, for Perjury (Art. 183 of The Revised Penal Code); and, (e) Crim. Case No. 26565, for Illegal Use Of An
Alias (CA No. 142, as amended by RA 6085).

On 11 April 2001 petitioner filed an Omnibus Motion for the remand of the case to the Ombudsman for
preliminary investigation with respect to specification "d" of the charges in the Information in Crim. Case No.
26558; and, for reconsideration/reinvestigation of the offenses under specifications "a," "b," and "c" to give
the accused an opportunity to file counter-affidavits and other documents necessary to prove lack of probable
cause. Noticeably, the grounds raised were only lack of preliminary investigation,
reconsideration/reinvestigation of offenses, and opportunity to prove lack of probable cause. The purported
ambiguity of the charges and the vagueness of the law under which they are charged were never raised in
that Omnibus Motion thus indicating the explicitness and comprehensibility of the Plunder Law.

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JC ISIDRO
On 25 April 2001 the Sandiganbayan, Third Division, issued a Resolution in Crim. Case No. 26558 finding that "a
probable cause for the offense of PLUNDER exists to justify the issuance of warrants for the arrest of the
accused." On 25 June 2001 petitioner's motion for reconsideration was denied by the Sandiganbayan.

On 14 June 2001 petitioner moved to quash the Information in Crim. Case No. 26558 on the ground that the
facts alleged therein did not constitute an indictable offense since the law on which it was based was
unconstitutional for vagueness, and that the Amended Information for Plunder charged more than one (1)
offense. On 21 June 2001 the Government filed its Opposition to the Motion to Quash, and five (5) days later
or on 26 June 2001 petitioner submitted his Reply to the Opposition. On 9 July 2001 the Sandiganbayan denied
petitioner's Motion to Quash.

As concisely delineated by this Court during the oral arguments on 18 September 2001, the issues for
resolution in the instant petition for certiorari are: (a) The Plunder Law is unconstitutional for being vague; (b)
The Plunder Law requires less evidence for proving the predicate crimes of plunder and therefore violates the
rights of the accused to due process; and, (c) Whether Plunder as defined in RA 7080 is a malum prohibitum,
and if so, whether it is within the power of Congress to so classify it.

Preliminarily, the whole gamut of legal concepts pertaining to the validity of legislation is predicated on the
basic principle that a legislative measure is presumed to be in harmony with the Constitution. 3 Courts
invariably train their sights on this fundamental rule whenever a legislative act is under a constitutional attack,
for it is the postulate of constitutional adjudication. This strong predilection for constitutionality takes its
bearings on the idea that it is forbidden for one branch of the government to encroach upon the duties and
powers of another. Thus it has been said that the presumption is based on the deference the judicial branch
accords to its coordinate branch - the legislature.

If there is any reasonable basis upon which the legislation may firmly rest, the courts must assume that the
legislature is ever conscious of the borders and edges of its plenary powers, and has passed the law with full
knowledge of the facts and for the purpose of promoting what is right and advancing the welfare of the
majority. Hence in determining whether the acts of the legislature are in tune with the fundamental law,
courts should proceed with judicial restraint and act with caution and forbearance. Every intendment of the
law must be adjudged by the courts in favor of its constitutionality, invalidity being a measure of last resort. In
construing therefore the provisions of a statute, courts must first ascertain whether an interpretation is fairly
possible to sidestep the question of constitutionality.

In La Union Credit Cooperative, Inc. v. Yaranon 4 we held that as long as there is some basis for the decision of
the court, the constitutionality of the challenged law will not be touched and the case will be decided on other
available grounds. Yet the force of the presumption is not sufficient to catapult a fundamentally deficient law
into the safe environs of constitutionality. Of course, where the law clearly and palpably transgresses the
hallowed domain of the organic law, it must be struck down on sight lest the positive commands of the
fundamental law be unduly eroded.

Verily, the onerous task of rebutting the presumption weighs heavily on the party challenging the validity of
the statute. He must demonstrate beyond any tinge of doubt that there is indeed an infringement of the
constitution, for absent such a showing, there can be no finding of unconstitutionality. A doubt, even if well-
founded, will hardly suffice. As tersely put by Justice Malcolm, "To doubt is to sustain."5 And petitioner has
miserably failed in the instant case to discharge his burden and overcome the presumption of constitutionality
of the Plunder Law.

As it is written, the Plunder Law contains ascertainable standards and well-defined parameters which would
enable the accused to determine the nature of his violation. Section 2 is sufficiently explicit in its description of
the acts, conduct and conditions required or forbidden, and prescribes the elements of the crime with
reasonable certainty and particularity. Thus -

1. That the offender is a public officer who acts by himself or in connivance with members of his
family, relatives by affinity or consanguinity, business associates, subordinates or other persons;

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 2. That he amassed, accumulated or acquired ill-gotten wealth through a combination or series of the
following overt or criminal acts: (a) through misappropriation, conversion, misuse, or malversation of
public funds or raids on the public treasury; (b) by receiving, directly or indirectly, any commission, gift,
share, percentage, kickback or any other form of pecuniary benefits from any person and/or entity in
connection with any government contract or project or by reason of the office or position of the public
officer; (c) by the illegal or fraudulent conveyance or disposition of assets belonging to the National
Government or any of its subdivisions, agencies or instrumentalities of Government owned or
controlled corporations or their subsidiaries; (d) by obtaining, receiving or accepting directly or
indirectly any shares of stock, equity or any other form of interest or participation including the
promise of future employment in any business enterprise or undertaking; (e) by establishing
agricultural, industrial or commercial monopolies or other combinations and/or implementation of
decrees and orders intended to benefit particular persons or special interests; or (f) by taking
advantage of official position, authority, relationship, connection or influence to unjustly enrich
himself or themselves at the expense and to the damage and prejudice of the Filipino people and the
Republic of the Philippines; and,

3. That the aggregate amount or total value of the ill-gotten wealth amassed, accumulated or
acquired is at least ₱50,000,000.00.

As long as the law affords some comprehensible guide or rule that would inform those who are subject to it
what conduct would render them liable to its penalties, its validity will be sustained. It must sufficiently guide
the judge in its application; the counsel, in defending one charged with its violation; and more importantly, the
accused, in identifying the realm of the proscribed conduct. Indeed, it can be understood with little difficulty
that what the assailed statute punishes is the act of a public officer in amassing or accumulating ill-gotten
wealth of at least ₱50,000,000.00 through a series or combination of acts enumerated in Sec. 1, par. (d), of the
Plunder Law.

In fact, the amended Information itself closely tracks the language of the law, indicating with reasonable
certainty the various elements of the offense which petitioner is alleged to have committed:

"The undersigned Ombudsman, Prosecutor and OIC-Director, EPIB, Office of the Ombudsman, hereby accuses
former PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, Joseph Ejercito Estrada, a.k.a. 'ASIONG SALONGA'
and a.k.a. 'JOSE VELARDE,' together with Jose 'Jinggoy' Estrada, Charlie 'Atong' Ang, Edward Serapio, Yolanda
T. Ricaforte, Alma Alfaro, JOHN DOE a.k.a. Eleuterio Tan OR Eleuterio Ramos Tan or Mr. Uy, Jane Doe a.k.a.
Delia Rajas, and John DOES & Jane Does, of the crime of Plunder, defined and penalized under R.A. No. 7080,
as amended by Sec. 12 of R.A. No. 7659, committed as follows:

That during the period from June, 1998 to January 2001, in the Philippines, and within the jurisdiction of this
Honorable Court, accused Joseph Ejercito Estrada, THEN A PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES,
by himself AND/OR in CONNIVANCE/CONSPIRACY with his co-accused, WHO ARE MEMBERS OF HIS FAMILY,
RELATIVES BY AFFINITY OR CONSANGUINITY, BUSINESS ASSOCIATES, SUBORDINATES AND/OR OTHER
PERSONS, BY TAKING UNDUE ADVANTAGE OF HIS OFFICIAL POSITION, AUTHORITY, RELATIONSHIP,
CONNECTION, OR INFLUENCE, did then and there willfully, unlawfully and criminally amass, accumulate and
acquire BY HIMSELF, DIRECTLY OR INDIRECTLY, ill-gotten wealth in the aggregate amount or TOTAL VALUE of
FOUR BILLION NINETY SEVEN MILLION EIGHT HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY THREE
PESOS AND SEVENTEEN CENTAVOS (₱4,097,804,173.17), more or less, THEREBY UNJUSTLY ENRICHING
HIMSELF OR THEMSELVES AT THE EXPENSE AND TO THE DAMAGE OF THE FILIPINO PEOPLE AND THE
REPUBLIC OF THE PHILIPPINES, through ANY OR A combination OR Aseries of overt OR criminal acts, OR
SIMILAR SCHEMES OR MEANS, described as follows:

(a) by receiving OR collecting, directly or indirectly, on SEVERAL INSTANCES, MONEY IN THE

AGGREGATE AMOUNT OF FIVE HUNDRED FORTY-FIVE MILLION PESOS (₱545,000,000.00), MORE OR
LESS, FROM ILLEGAL GAMBLING IN THE FORM OF GIFT, SHARE, PERCENTAGE, KICKBACK OR ANY
FORM OF PECUNIARY BENEFIT, BY HIMSELF AND/OR in connection with co-accused CHARLIE
'ATONG' ANG, Jose 'Jinggoy' Estrada, Yolanda T. Ricaforte, Edward Serapio, AND JOHN DOES AND
JANE DOES, in consideration OF TOLERATION OR PROTECTION OF ILLEGAL GAMBLING;

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JC ISIDRO
 (b) by DIVERTING, RECEIVING, misappropriating, converting OR misusing DIRECTLY OR INDIRECTLY,
for HIS OR THEIR PERSONAL gain and benefit, public funds in the amount of ONE HUNDRED THIRTY
MILLION PESOS (₱130,000,000.00), more or less, representing a portion of the TWO HUNDRED
MILLION PESOS (₱200,000,000.00) tobacco excise tax share allocated for the province of Ilocos Sur
under R.A. No. 7171, by himself and/or in connivance with co-accused Charlie 'Atong' Ang, Alma
Alfaro, JOHN DOE a.k.a.Eleuterio Ramos Tan or Mr. Uy, Jane Doe a.k.a. Delia Rajas, AND OTHER JOHN
DOES & JANE DOES; (italic supplied).

(c) by directing, ordering and compelling, FOR HIS PERSONAL GAIN AND BENEFIT, the Government
Service Insurance System (GSIS) TO PURCHASE 351,878,000 SHARES OF STOCKS, MORE OR LESS, and
the Social Security System (SSS), 329,855,000 SHARES OF STOCK, MORE OR LESS, OF THE BELLE
CORPORATION IN THE AMOUNT OF MORE OR LESS ONE BILLION ONE HUNDRED TWO MILLION
NINE HUNDRED SIXTY FIVE THOUSAND SIX HUNDRED SEVEN PESOS AND FIFTY CENTAVOS
(₱1,102,965,607.50) AND MORE OR LESS SEVEN HUNDRED FORTY FOUR MILLION SIX HUNDRED
TWELVE THOUSAND AND FOUR HUNDRED FIFTY PESOS (₱744,612,450.00), RESPECTIVELY, OR A
TOTAL OF MORE OR LESS ONE BILLION EIGHT HUNDRED FORTY SEVEN MILLION FIVE HUNDRED
SEVENTY EIGHT THOUSAND FIFTY SEVEN PESOS AND FIFTY CENTAVOS (₱1,847,578,057.50); AND BY
COLLECTING OR RECEIVING, DIRECTLY OR INDIRECTLY, BY HIMSELF AND/OR IN CONNIVANCE WITH
JOHN DOES AND JANE DOES, COMMISSIONS OR PERCENTAGES BY REASON OF SAID PURCHASES OF
SHARES OF STOCK IN THE AMOUNT OF ONE HUNDRED EIGHTY NINE MILLION SEVEN HUNDRED
THOUSAND PESOS (₱189,700,000.00) MORE OR LESS, FROM THE BELLE CORPORATION WHICH
BECAME PART OF THE DEPOSIT IN THE EQUITABLE-PCI BANK UNDER THE ACCOUNT NAME 'JOSE
VELARDE;'

(d) by unjustly enriching himself FROM COMMISSIONS, GIFTS, SHARES, PERCENTAGES, KICKBACKS,
OR ANY FORM OF PECUNIARY BENEFITS, IN CONNIVANCE WITH JOHN DOES AND JANE DOES, in the
amount of MORE OR LESS THREE BILLION TWO HUNDRED THIRTY THREE MILLION ONE HUNDRED
FOUR THOUSAND ONE HUNDRED SEVENTY THREE PESOS AND SEVENTEEN CENTAVOS
(₱3,233,104,173.17) AND DEPOSITING THE SAME UNDER HIS ACCOUNT NAME 'JOSE VELARDE' AT
THE EQUITABLE-PCI BANK."

We discern nothing in the foregoing that is vague or ambiguous - as there is obviously none - that will confuse
petitioner in his defense. Although subject to proof, these factual assertions clearly show that the elements of
the crime are easily understood and provide adequate contrast between the innocent and the prohibited acts.
Upon such unequivocal assertions, petitioner is completely informed of the accusations against him as to
enable him to prepare for an intelligent defense.

Petitioner, however, bewails the failure of the law to provide for the statutory definition of the terms
"combination" and "series" in the key phrase "a combination or series of overt or criminal acts" found in Sec.
1, par. (d), and Sec. 2, and the word "pattern" in Sec. 4. These omissions, according to petitioner, render the
Plunder Law unconstitutional for being impermissibly vague and overbroad and deny him the right to be
informed of the nature and cause of the accusation against him, hence, violative of his fundamental right to
due process.

The rationalization seems to us to be pure sophistry. A statute is not rendered uncertain and void merely
because general terms are used therein, or because of the employment of terms without defining them; 6 much
less do we have to define every word we use. Besides, there is no positive constitutional or statutory
command requiring the legislature to define each and every word in an enactment. Congress is not restricted
in the form of expression of its will, and its inability to so define the words employed in a statute will not
necessarily result in the vagueness or ambiguity of the law so long as the legislative will is clear, or at least, can
be gathered from the whole act, which is distinctly expressed in the Plunder Law.

Moreover, it is a well-settled principle of legal hermeneutics that words of a statute will be interpreted in their
natural, plain and ordinary acceptation and signification,7 unless it is evident that the legislature intended a
technical or special legal meaning to those words.8 The intention of the lawmakers - who are, ordinarily,
untrained philologists and lexicographers - to use statutory phraseology in such a manner is always presumed.

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JC ISIDRO
Thus, Webster's New Collegiate Dictionary contains the following commonly accepted definition of the words
"combination" and "series:"

Combination - the result or product of combining; the act or process of combining. To combine is to bring into
such close relationship as to obscure individual characters.

Series - a number of things or events of the same class coming one after another in spatial and temporal
succession.

That Congress intended the words "combination" and "series" to be understood in their popular meanings is
pristinely evident from the legislative deliberations on the bill which eventually became RA 7080 or the
Plunder Law:

DELIBERATIONS OF THE BICAMERAL COMMITTEE ON JUSTICE, 7 May 1991

REP. ISIDRO: I am just intrigued again by our definition of plunder. We say THROUGH A COMBINATION OR
SERIES OF OVERT OR CRIMINAL ACTS AS MENTIONED IN SECTION ONE HEREOF. Now when we say
combination, we actually mean to say, if there are two or more means, we mean to say that number one and
two or number one and something else are included, how about a series of the same act? For example, through
misappropriation, conversion, misuse, will these be included also?

REP. GARCIA: Yeah, because we say a series.

REP. ISIDRO: Series.
REP. GARCIA: Yeah, we include series.
REP. ISIDRO: But we say we begin with a combination.
REP. GARCIA: Yes.
REP. ISIDRO: When we say combination, it seems that -
REP. GARCIA: Two.
REP. ISIDRO: Not only two but we seem to mean that two of the enumerated means not twice of one
enumeration.
REP. GARCIA: No, no, not twice.
REP. ISIDRO: Not twice?
REP. GARCIA: Yes. Combination is not twice - but combination, two acts.
REP. ISIDRO: So in other words, that’s it. When we say combination, we mean, two different acts. It cannot be a
repetition of the same act.
REP. GARCIA: That be referred to series, yeah.
REP. ISIDRO: No, no. Supposing one act is repeated, so there are two.
REP. GARCIA: A series.
REP. ISIDRO: That’s not series. Its a combination. Because when we say combination or series, we seem to say
that two or more, di ba?
REP. GARCIA: Yes, this distinguishes it really from ordinary crimes. That is why, I said, that is a very good
suggestion because if it is only one act, it may fall under ordinary crime but we have here a combination or
series of overt or criminal acts. So x x x x
REP. GARCIA: Series. One after the other eh di....
SEN. TANADA: So that would fall under the term "series?"
REP. GARCIA: Series, oo.
REP. ISIDRO: Now, if it is a combination, ano, two misappropriations....
REP. GARCIA: Its not... Two misappropriations will not be combination. Series.
REP. ISIDRO: So, it is not a combination?
REP. GARCIA: Yes.
REP. ISIDRO: When you say combination, two different?
REP. GARCIA: Yes.
SEN. TANADA: Two different.
REP. ISIDRO: Two different acts.
REP. GARCIA: For example, ha...
REP. ISIDRO: Now a series, meaning, repetition...

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JC ISIDRO
DELIBERATIONS ON SENATE BILL NO. 733, 6 June 1989
SENATOR MACEDA: In line with our interpellations that sometimes "one" or maybe even "two" acts may
already result in such a big amount, on line 25, would the Sponsor consider deleting the words "a series of overt
or," to read, therefore: "or conspiracy COMMITTED by criminal acts such as." Remove the idea of necessitating
"a series." Anyway, the criminal acts are in the plural.
SENATOR TANADA: That would mean a combination of two or more of the acts mentioned in this.
THE PRESIDENT: Probably two or more would be....
SENATOR MACEDA: Yes, because "a series" implies several or many; two or more.
SENATOR TANADA: Accepted, Mr. President x x x x
THE PRESIDENT: If there is only one, then he has to be prosecuted under the particular crime. But when we say
"acts of plunder" there should be, at least, two or more.
SENATOR ROMULO: In other words, that is already covered by existing laws, Mr. President.

Thus when the Plunder Law speaks of "combination," it is referring to at least two (2) acts falling under
different categories of enumeration provided in Sec. 1, par. (d), e.g., raids on the public treasury in Sec. 1, par.
(d), subpar. (1), and fraudulent conveyance of assets belonging to the National Government under Sec. 1, par.
(d), subpar. (3).

On the other hand, to constitute a series" there must be two (2) or more overt or criminal acts falling under
the same category of enumeration found in Sec. 1, par. (d), say, misappropriation, malversation and raids on
the public treasury, all of which fall under Sec. 1, par. (d), subpar. (1). Verily, had the legislature intended a
technical or distinctive meaning for "combination" and "series," it would have taken greater pains in
specifically providing for it in the law.

As for "pattern," we agree with the observations of the Sandiganbayan 9 that this term is sufficiently defined in
Sec. 4, in relation to Sec. 1, par. (d), and Sec. 2 -

x x x x under Sec. 1 (d) of the law, a 'pattern' consists of at least a combination or series of overt or criminal acts
enumerated in subsections (1) to (6) of Sec. 1 (d). Secondly, pursuant to Sec. 2 of the law, the pattern of overt
or criminal acts is directed towards a common purpose or goal which is to enable the public officer to amass,
accumulate or acquire ill-gotten wealth. And thirdly, there must either be an 'overall unlawful scheme' or
'conspiracy' to achieve said common goal. As commonly understood, the term 'overall unlawful scheme'
indicates a 'general plan of action or method' which the principal accused and public officer and others
conniving with him follow to achieve the aforesaid common goal. In the alternative, if there is no such overall
scheme or where the schemes or methods used by multiple accused vary, the overt or criminal acts must form
part of a conspiracy to attain a common goal.

Hence, it cannot plausibly be contended that the law does not give a fair warning and sufficient notice of what
it seeks to penalize. Under the circumstances, petitioner's reliance on the "void-for-vagueness" doctrine is
manifestly misplaced. The doctrine has been formulated in various ways, but is most commonly stated to the
effect that a statute establishing a criminal offense must define the offense with sufficient definiteness that
persons of ordinary intelligence can understand what conduct is prohibited by the statute. It can only be
invoked against that specie of legislation that is utterly vague on its face, i.e., that which cannot be clarified
either by a saving clause or by construction.

A statute or act may be said to be vague when it lacks comprehensible standards that men of common
intelligence must necessarily guess at its meaning and differ in its application. In such instance, the statute is
repugnant to the Constitution in two (2) respects - it violates due process for failure to accord persons,
especially the parties targeted by it, fair notice of what conduct to avoid; and, it leaves law enforcers unbridled
discretion in carrying out its provisions and becomes an arbitrary flexing of the Government muscle. 10 But the
doctrine does not apply as against legislations that are merely couched in imprecise language but which
nonetheless specify a standard though defectively phrased; or to those that are apparently ambiguous yet
fairly applicable to certain types of activities. The first may be "saved" by proper construction, while no
challenge may be mounted as against the second whenever directed against such activities. 11 With more

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JC ISIDRO
reason, the doctrine cannot be invoked where the assailed statute is clear and free from ambiguity, as in this
case.

The test in determining whether a criminal statute is void for uncertainty is whether the language conveys a
sufficiently definite warning as to the proscribed conduct when measured by common understanding and
practice.12It must be stressed, however, that the "vagueness" doctrine merely requires a reasonable degree of
certainty for the statute to be upheld - not absolute precision or mathematical exactitude, as petitioner seems
to suggest. Flexibility, rather than meticulous specificity, is permissible as long as the metes and bounds of the
statute are clearly delineated. An act will not be held invalid merely because it might have been more explicit
in its wordings or detailed in its provisions, especially where, because of the nature of the act, it would be
impossible to provide all the details in advance as in all other statutes.

Moreover, we agree with, hence we adopt, the observations of Mr. Justice Vicente V. Mendoza during the
deliberations of the Court that the allegations that the Plunder Law is vague and overbroad do not justify a
facial review of its validity -

The void-for-vagueness doctrine states that "a statute which either forbids or requires the doing of an act in
terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its
application, violates the first essential of due process of law."13 The overbreadth doctrine, on the other hand,
decrees that "a governmental purpose may not be achieved by means which sweep unnecessarily broadly and
thereby invade the area of protected freedoms." 14

A facial challenge is allowed to be made to a vague statute and to one which is overbroad because of possible
"chilling effect" upon protected speech. The theory is that "[w]hen statutes regulate or proscribe speech and
no readily apparent construction suggests itself as a vehicle for rehabilitating the statutes in a single
prosecution, the transcendent value to all society of constitutionally protected expression is deemed to justify
allowing attacks on overly broad statutes with no requirement that the person making the attack demonstrate
that his own conduct could not be regulated by a statute drawn with narrow specificity." 15 The possible harm
to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that the
protected speech of others may be deterred and perceived grievances left to fester because of possible
inhibitory effects of overly broad statutes.

This rationale does not apply to penal statutes. Criminal statutes have general in terrorem effect resulting from
their very existence, and, if facial challenge is allowed for this reason alone, the State may well be prevented
from enacting laws against socially harmful conduct. In the area of criminal law, the law cannot take chances
as in the area of free speech.

The overbreadth and vagueness doctrines then have special application only to free speech cases. They are
inapt for testing the validity of penal statutes. As the U.S. Supreme Court put it, in an opinion by Chief Justice
Rehnquist, "we have not recognized an 'overbreadth' doctrine outside the limited context of the First
Amendment."16 In Broadrick v. Oklahoma,17 the Court ruled that "claims of facial overbreadth have been
entertained in cases involving statutes which, by their terms, seek to regulate only spoken words" and, again,
that "overbreadth claims, if entertained at all, have been curtailed when invoked against ordinary criminal
laws that are sought to be applied to protected conduct." For this reason, it has been held that "a facial
challenge to a legislative act is the most difficult challenge to mount successfully, since the challenger must
establish that no set of circumstances exists under which the Act would be valid." 18 As for the vagueness
doctrine, it is said that a litigant may challenge a statute on its face only if it is vague in all its possible
applications. "A plaintiff who engages in some conduct that is clearly proscribed cannot complain of the
vagueness of the law as applied to the conduct of others."19

In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools developed for testing
"on their faces" statutes in free speech cases or, as they are called in American law, First Amendment cases.
They cannot be made to do service when what is involved is a criminal statute. With respect to such statute,
the established rule is that "one to whom application of a statute is constitutional will not be heard to attack
the statute on the ground that impliedly it might also be taken as applying to other persons or other situations
in which its application might be unconstitutional."20 As has been pointed out, "vagueness challenges in the

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JC ISIDRO
First Amendment context, like overbreadth challenges typically produce facial invalidation, while statutes
found vague as a matter of due process typically are invalidated [only] 'as applied' to a particular
defendant."21 Consequently, there is no basis for petitioner's claim that this Court review the Anti-Plunder Law
on its face and in its entirety.

Indeed, "on its face" invalidation of statutes results in striking them down entirely on the ground that they
might be applied to parties not before the Court whose activities are constitutionally protected.22 It constitutes
a departure from the case and controversy requirement of the Constitution and permits decisions to be made
without concrete factual settings and in sterile abstract contexts.23 But, as the U.S. Supreme Court pointed out
in Younger v. Harris24

[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring correction of these
deficiencies before the statute is put into effect, is rarely if ever an appropriate task for the judiciary. The
combination of the relative remoteness of the controversy, the impact on the legislative process of the relief
sought, and above all the speculative and amorphous nature of the required line-by-line analysis of detailed
statutes, . . . ordinarily results in a kind of case that is wholly unsatisfactory for deciding constitutional
questions, whichever way they might be decided.

For these reasons, "on its face" invalidation of statutes has been described as "manifestly strong medicine," to
be employed "sparingly and only as a last resort,"25 and is generally disfavored.26 In determining the
constitutionality of a statute, therefore, its provisions which are alleged to have been violated in a case must
be examined in the light of the conduct with which the defendant is charged.27

In light of the foregoing disquisition, it is evident that the purported ambiguity of the Plunder Law, so
tenaciously claimed and argued at length by petitioner, is more imagined than real. Ambiguity, where none
exists, cannot be created by dissecting parts and words in the statute to furnish support to critics who cavil at
the want of scientific precision in the law. Every provision of the law should be construed in relation and with
reference to every other part. To be sure, it will take more than nitpicking to overturn the well-entrenched
presumption of constitutionality and validity of the Plunder Law. A fortiori, petitioner cannot feign ignorance
of what the Plunder Law is all about. Being one of the Senators who voted for its passage, petitioner must be
aware that the law was extensively deliberated upon by the Senate and its appropriate committees by reason
of which he even registered his affirmative vote with full knowledge of its legal implications and sound
constitutional anchorage.

The parallel case of Gallego v. Sandiganbayan28 must be mentioned if only to illustrate and emphasize the
point that courts are loathed to declare a statute void for uncertainty unless the law itself is so imperfect and
deficient in its details, and is susceptible of no reasonable construction that will support and give it effect. In
that case, petitioners Gallego and Agoncillo challenged the constitutionality of Sec. 3, par. (e), of The Anti-Graft
and Corrupt Practices Actfor being vague. Petitioners posited, among others, that the term "unwarranted" is
highly imprecise and elastic with no common law meaning or settled definition by prior judicial or
administrative precedents; that, for its vagueness, Sec. 3, par. (e), violates due process in that it does not give
fair warning or sufficient notice of what it seeks to penalize. Petitioners further argued that the Information
charged them with three (3) distinct offenses, to wit: (a) giving of "unwarranted" benefits through manifest
partiality; (b) giving of "unwarranted" benefits through evident bad faith; and, (c) giving of "unwarranted"
benefits through gross inexcusable negligence while in the discharge of their official function and that their
right to be informed of the nature and cause of the accusation against them was violated because they were
left to guess which of the three (3) offenses, if not all, they were being charged and prosecuted.

In dismissing the petition, this Court held that Sec. 3, par. (e), of The Anti-Graft and Corrupt Practices Act does
not suffer from the constitutional defect of vagueness. The phrases "manifest partiality," "evident bad faith,"
and "gross and inexcusable negligence" merely describe the different modes by which the offense penalized in
Sec. 3, par. (e), of the statute may be committed, and the use of all these phrases in the same Information
does not mean that the indictment charges three (3) distinct offenses.

The word 'unwarranted' is not uncertain. It seems lacking adequate or official support; unjustified;
unauthorized (Webster, Third International Dictionary, p. 2514); or without justification or adequate reason

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(Philadelphia Newspapers, Inc. v. US Dept. of Justice, C.D. Pa., 405 F. Supp. 8, 12, cited in Words and Phrases,
Permanent Edition, Vol. 43-A 1978, Cumulative Annual Pocket Part, p. 19).

The assailed provisions of the Anti-Graft and Corrupt Practices Act consider a corrupt practice and make
unlawful the act of the public officer in:

x x x or giving any private party any unwarranted benefits, advantage or preference in the discharge of his
official, administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable
negligence, x x x (Section 3 [e], Rep. Act 3019, as amended).

It is not at all difficult to comprehend that what the aforequoted penal provisions penalize is the act of a public
officer, in the discharge of his official, administrative or judicial functions, in giving any private party benefits,
advantage or preference which is unjustified, unauthorized or without justification or adequate reason,
through manifest partiality, evident bad faith or gross inexcusable negligence.

In other words, this Court found that there was nothing vague or ambiguous in the use of the term
"unwarranted" in Sec. 3, par. (e), of The Anti-Graft and Corrupt Practices Act, which was understood in its
primary and general acceptation. Consequently, in that case, petitioners' objection thereto was held
inadequate to declare the section unconstitutional.

On the second issue, petitioner advances the highly stretched theory that Sec. 4 of the Plunder Law
circumvents the immutable obligation of the prosecution to prove beyond reasonable doubt the predicate acts
constituting the crime of plunder when it requires only proof of a pattern of overt or criminal acts showing
unlawful scheme or conspiracy -

SEC. 4. Rule of Evidence. - For purposes of establishing the crime of plunder, it shall not be necessary to prove
each and every criminal act done by the accused in furtherance of the scheme or conspiracy to amass,
accumulate or acquire ill-gotten wealth, it being sufficient to establish beyond reasonable doubt a pattern of
overt or criminal acts indicative of the overall unlawful scheme or conspiracy.

The running fault in this reasoning is obvious even to the simplistic mind. In a criminal prosecution for plunder,
as in all other crimes, the accused always has in his favor the presumption of innocence which is guaranteed by
the Bill of Rights, and unless the State succeeds in demonstrating by proof beyond reasonable doubt that
culpability lies, the accused is entitled to an acquittal.29 The use of the "reasonable doubt" standard is
indispensable to command the respect and confidence of the community in the application of criminal law. It
is critical that the moral force of criminal law be not diluted by a standard of proof that leaves people in doubt
whether innocent men are being condemned. It is also important in our free society that every individual going
about his ordinary affairs has confidence that his government cannot adjudge him guilty of a criminal offense
without convincing a proper factfinder of his guilt with utmost certainty. This "reasonable doubt" standard has
acquired such exalted stature in the realm of constitutional law as it gives life to the Due Process Clause which
protects the accused against conviction except upon proof beyond reasonable doubt of every fact necessary to
constitute the crime with which he is charged.30 The following exchanges between Rep. Rodolfo Albano and
Rep. Pablo Garcia on this score during the deliberations in the floor of the House of Representatives are
elucidating -

DELIBERATIONS OF THE HOUSE OF REPRESENTATIVES ON RA 7080, 9 October 1990

MR. ALBANO: Now, Mr. Speaker, it is also elementary in our criminal law that what is alleged in the
information must be proven beyond reasonable doubt. If we will prove only one act and find him guilty of the
other acts enumerated in the information, does that not work against the right of the accused especially so if
the amount committed, say, by falsification is less than ₱100 million, but the totality of the crime committed is
₱100 million since there is malversation, bribery, falsification of public document, coercion, theft?

MR. GARCIA: Mr. Speaker, not everything alleged in the information needs to be proved beyond reasonable
doubt. What is required to be proved beyond reasonable doubt is every element of the crime charged. For

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example, Mr. Speaker, there is an enumeration of the things taken by the robber in the information – three
pairs of pants, pieces of jewelry. These need not be proved beyond reasonable doubt, but these will not prevent
the conviction of a crime for which he was charged just because, say, instead of 3 pairs of diamond earrings the
prosecution proved two. Now, what is required to be proved beyond reasonable doubt is the element of the
offense.

MR. ALBANO: I am aware of that, Mr. Speaker, but considering that in the crime of plunder the totality of the
amount is very important, I feel that such a series of overt criminal acts has to be taken singly. For instance, in
the act of bribery, he was able to accumulate only ₱50,000 and in the crime of extortion, he was only able to
accumulate ₱1 million. Now, when we add the totality of the other acts as required under this bill through the
interpretation on the rule of evidence, it is just one single act, so how can we now convict him?

MR. GARCIA: With due respect, Mr. Speaker, for purposes of proving an essential element of the crime, there is
a need to prove that element beyond reasonable doubt. For example, one essential element of the crime is that
the amount involved is ₱100 million. Now, in a series of defalcations and other acts of corruption in the
enumeration the total amount would be ₱110 or ₱120 million, but there are certain acts that could not be
proved, so, we will sum up the amounts involved in those transactions which were proved. Now, if the amount
involved in these transactions, proved beyond reasonable doubt, is ₱100 million, then there is a crime of
plunder (underscoring supplied).

It is thus plain from the foregoing that the legislature did not in any manner refashion the standard quantum
of proof in the crime of plunder. The burden still remains with the prosecution to prove beyond any iota of
doubt every fact or element necessary to constitute the crime.

The thesis that Sec. 4 does away with proof of each and every component of the crime suffers from a dismal
misconception of the import of that provision. What the prosecution needs to prove beyond reasonable doubt
is only a number of acts sufficient to form a combination or series which would constitute a pattern and
involving an amount of at least ₱50,000,000.00. There is no need to prove each and every other act alleged in
the Information to have been committed by the accused in furtherance of the overall unlawful scheme or
conspiracy to amass, accumulate or acquire ill-gotten wealth. To illustrate, supposing that the accused is
charged in an Information for plunder with having committed fifty (50) raids on the public treasury. The
prosecution need not prove all these fifty (50) raids, it being sufficient to prove by pattern at least two (2) of
the raids beyond reasonable doubt provided only that they amounted to at least ₱50,000,000.00. 31

A reading of Sec. 2 in conjunction with Sec. 4, brings us to the logical conclusion that "pattern of overt or
criminal acts indicative of the overall unlawful scheme or conspiracy" inheres in the very acts of accumulating,
acquiring or amassing hidden wealth. Stated otherwise, such pattern arises where the prosecution is able to
prove beyond reasonable doubt the predicate acts as defined in Sec. 1, par. (d). Pattern is merely a by-product
of the proof of the predicate acts. This conclusion is consistent with reason and common sense. There would
be no other explanation for a combination or series of

overt or criminal acts to stash ₱50,000,000.00 or more, than "a scheme or conspiracy to amass, accumulate or
acquire ill gotten wealth." The prosecution is therefore not required to make a deliberate and conscious effort
to prove pattern as it necessarily follows with the establishment of a series or combination of the predicate
acts.

Relative to petitioner's contentions on the purported defect of Sec. 4 is his submission that "pattern" is "a very
important element of the crime of plunder;" and that Sec. 4 is "two pronged, (as) it contains a rule of evidence
and a substantive element of the crime," such that without it the accused cannot be convicted of plunder -

JUSTICE BELLOSILLO: In other words, cannot an accused be convicted under the Plunder Law without applying
Section 4 on the Rule of Evidence if there is proof beyond reasonable doubt of the commission of the acts
complained of?

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ATTY. AGABIN: In that case he can be convicted of individual crimes enumerated in the Revised Penal Code, but
not plunder.

JUSTICE BELLOSILLO: In other words, if all the elements of the crime are proved beyond reasonable doubt
without applying Section 4, can you not have a conviction under the Plunder Law?

ATTY. AGABIN: Not a conviction for plunder, your Honor.

JUSTICE BELLOSILLO: Can you not disregard the application of Sec. 4 in convicting an accused charged for
violation of the Plunder Law?

ATTY. AGABIN: Well, your Honor, in the first place Section 4 lays down a substantive element of the law x x x x

JUSTICE BELLOSILLO: What I said is - do we have to avail of Section 4 when there is proof beyond reasonable
doubt on the acts charged constituting plunder?

ATTY. AGABIN: Yes, your Honor, because Section 4 is two pronged, it contains a rule of evidence and it contains
a substantive element of the crime of plunder. So, there is no way by which we can avoid Section 4.

JUSTICE BELLOSILLO: But there is proof beyond reasonable doubt insofar as the predicate crimes charged are
concerned that you do not have to go that far by applying Section 4?

ATTY. AGABIN: Your Honor, our thinking is that Section 4 contains a very important element of the crime of
plunder and that cannot be avoided by the prosecution.32

We do not subscribe to petitioner's stand. Primarily, all the essential elements of plunder can be culled and
understood from its definition in Sec. 2, in relation to Sec. 1, par. (d), and "pattern" is not one of them.
Moreover, the epigraph and opening clause of Sec. 4 is clear and unequivocal:

SEC. 4. Rule of Evidence. - For purposes of establishing the crime of plunder x x x x

It purports to do no more than prescribe a rule of procedure for the prosecution of a criminal case for plunder.
Being a purely procedural measure, Sec. 4 does not define or establish any substantive right in favor of the
accused but only operates in furtherance of a remedy. It is only a means to an end, an aid to substantive law.
Indubitably, even without invoking Sec. 4, a conviction for plunder may be had, for what is crucial for the
prosecution is to present sufficient evidence to engender that moral certitude exacted by the fundamental law
to prove the guilt of the accused beyond reasonable doubt. Thus, even granting for the sake of argument that
Sec. 4 is flawed and vitiated for the reasons advanced by petitioner, it may simply be severed from the rest of
the provisions without necessarily resulting in the demise of the law; after all, the existing rules on evidence
can supplant Sec. 4 more than enough. Besides, Sec. 7 of RA 7080 provides for a separability clause -

Sec. 7. Separability of Provisions. - If any provisions of this Act or the application thereof to any person or
circumstance is held invalid, the remaining provisions of this Act and the application of such provisions to
other persons or circumstances shall not be affected thereby.

Implicit in the foregoing section is that to avoid the whole act from being declared invalid as a result of the
nullity of some of its provisions, assuming that to be the case although it is not really so, all the provisions
thereof should accordingly be treated independently of each other, especially if by doing so, the objectives of
the statute can best be achieved.

As regards the third issue, again we agree with Justice Mendoza that plunder is a malum in se which requires
proof of criminal intent. Thus, he says, in his Concurring Opinion -

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x x x Precisely because the constitutive crimes are mala in se the element of mens rea must be proven in a
prosecution for plunder. It is noteworthy that the amended information alleges that the crime of plunder was
committed "willfully, unlawfully and criminally." It thus alleges guilty knowledge on the part of petitioner.

In support of his contention that the statute eliminates the requirement of mens rea and that is the reason he
claims the statute is void, petitioner cites the following remarks of Senator Tañada made during the
deliberation on S.B. No. 733:

SENATOR TAÑADA . . . And the evidence that will be required to convict him would not be evidence for each
and every individual criminal act but only evidence sufficient to establish the conspiracy or scheme to commit
this crime of plunder.33

However, Senator Tañada was discussing §4 as shown by the succeeding portion of the transcript quoted by
petitioner:

SENATOR ROMULO: And, Mr. President, the Gentleman feels that it is contained in Section 4, Rule of Evidence,
which, in the Gentleman's view, would provide for a speedier and faster process of attending to this kind of
cases?

SENATOR TAÑADA: Yes, Mr. President . . .34

Senator Tañada was only saying that where the charge is conspiracy to commit plunder, the prosecution need
not prove each and every criminal act done to further the scheme or conspiracy, it being enough if it proves
beyond reasonable doubt a pattern of overt or ciminal acts indicative of the overall unlawful scheme or
conspiracy. As far as the acts constituting the pattern are concerned, however, the elements of the crime must
be proved and the requisite mens rea must be shown.

Indeed, §2 provides that -

Any person who participated with the said public officer in the commission of an offense contributing to the
crime of plunder shall likewise be punished for such offense. In the imposition of penalties, the degree of
participation and the attendance of mitigating and extenuating circumstances, as provided by the Revised
Penal Code, shall be considered by the court.

The application of mitigating and extenuating circumstances in the Revised Penal Code to prosecutions under
the Anti-Plunder Law indicates quite clearly that mens rea is an element of plunder since the degree of
responsibility of the offender is determined by his criminal intent. It is true that §2 refers to "any person who
participates with the said public officer in the commission of an offense contributing to the crime of plunder."
There is no reason to believe, however, that it does not apply as well to the public officer as principal in the
crime. As Justice Holmes said: "We agree to all the generalities about not supplying criminal laws with what
they omit, but there is no canon against using common sense in construing laws as saying what they obviously
mean."35

Finally, any doubt as to whether the crime of plunder is a malum in se must be deemed to have been resolved
in the affirmative by the decision of Congress in 1993 to include it among the heinous crimes punishable
by reclusion perpetua to death. Other heinous crimes are punished with death as a straight penalty in R.A. No.
7659. Referring to these groups of heinous crimes, this Court held in People v. Echegaray:36

The evil of a crime may take various forms. There are crimes that are, by their very nature, despicable, either
because life was callously taken or the victim is treated like an animal and utterly dehumanized as to
completely disrupt the normal course of his or her growth as a human being . . . . Seen in this light, the capital
crimes of kidnapping and serious illegal detention for ransom resulting in the death of the victim or the victim
is raped, tortured, or subjected to dehumanizing acts; destructive arson resulting in death; and drug offenses
involving minors or resulting in the death of the victim in the case of other crimes; as well as murder, rape,
parricide, infanticide, kidnapping and serious illegal detention, where the victim is detained for more than

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three days or serious physical injuries were inflicted on the victim or threats to kill him were made or the
victim is a minor, robbery with homicide, rape or intentional mutilation, destructive arson, and carnapping
where the owner, driver or occupant of the carnapped vehicle is killed or raped, which are penalized by
reclusion perpetua to death, are clearly heinous by their very nature.

There are crimes, however, in which the abomination lies in the significance and implications of the subject
criminal acts in the scheme of the larger socio-political and economic context in which the state finds itself to
be struggling to develop and provide for its poor and underprivileged masses. Reeling from decades of corrupt
tyrannical rule that bankrupted the government and impoverished the population, the Philippine Government
must muster the political will to dismantle the culture of corruption, dishonesty, greed and syndicated
criminality that so deeply entrenched itself in the structures of society and the psyche of the populace. [With
the government] terribly lacking the money to provide even the most basic services to its people, any form of
misappropriation or misapplication of government funds translates to an actual threat to the very existence of
government, and in turn, the very survival of the people it governs over. Viewed in this context, no less
heinous are the effects and repercussions of crimes like qualified bribery, destructive arson resulting in death,
and drug offenses involving government officials, employees or officers, that their perpetrators must not be
allowed to cause further destruction and damage to society.

The legislative declaration in R.A. No. 7659 that plunder is a heinous offense implies that it is a malum in se.
For when the acts punished are inherently immoral or inherently wrong, they are mala in se37 and it does not
matter that such acts are punished in a special law, especially since in the case of plunder the predicate crimes
are mainly mala in se. Indeed, it would be absurd to treat prosecutions for plunder as though they are mere
prosecutions for violations of the Bouncing Check Law (B.P. Blg. 22) or of an ordinance against jaywalking,
without regard to the inherent wrongness of the acts.

To clinch, petitioner likewise assails the validity of RA 7659, the amendatory law of RA 7080, on constitutional
grounds. Suffice it to say however that it is now too late in the day for him to resurrect this long dead issue,
the same having been eternally consigned by People v. Echegaray38 to the archives of jurisprudential history.
The declaration of this Court therein that RA 7659 is constitutionally valid stands as a declaration of the State,
and becomes, by necessary effect, assimilated in the Constitution now as an integral part of it.

Our nation has been racked by scandals of corruption and obscene profligacy of officials in high places which
have shaken its very foundation. The anatomy of graft and corruption has become more elaborate in the
corridors of time as unscrupulous people relentlessly contrive more and more ingenious ways to bilk the
coffers of the government. Drastic and radical measures are imperative to fight the increasingly sophisticated,
extraordinarily methodical and economically catastrophic looting of the national treasury. Such is the Plunder
Law, especially designed to disentangle those ghastly tissues of grand-scale corruption which, if left
unchecked, will spread like a malignant tumor and ultimately consume the moral and institutional fiber of our
nation. The Plunder Law, indeed, is a living testament to the will of the legislature to ultimately eradicate this
scourge and thus secure society against the avarice and other venalities in public office.

These are times that try men's souls. In the checkered history of this nation, few issues of national importance
can equal the amount of interest and passion generated by petitioner's ignominious fall from the highest
office, and his eventual prosecution and trial under a virginal statute. This continuing saga has driven a wedge
of dissension among our people that may linger for a long time. Only by responding to the clarion call for
patriotism, to rise above factionalism and prejudices, shall we emerge triumphant in the midst of ferment.

PREMISES CONSIDERED, this Court holds that RA 7080 otherwise known as the Plunder Law, as amended by
RA 7659, is CONSTITUTIONAL. Consequently, the petition to declare the law unconstitutional is DISMISSED for
lack of merit.

SO ORDERED.

Buena, and De Leon, Jr., JJ., concur.

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Davide, Jr. C.J., Melo, Quisumbing, JJ., join concurring opinion of J. Mendoza.
Puno, Vitug, JJ., concurred and joins J. Mendoza's concurring opinion.
Kapunan, Pardo, Sandoval-Gutierrez, Ynares-Santiago, JJ., see dissenting opinion.
Mendoza, J., please see concurring opinion.
Panganiban J., please see separate concurring opinion.
Carpio, J., no part. Was one of the complainants before Ombudsman.

DISSENTING OPINION

KAPUNAN, J.:

The primary duty of the Court is to render justice. The resolution of the issues brought before it must be
grounded on law, justice and the basic tenets of due process, unswayed by the passions of the day or the
clamor of the multitudes, guided only by its members’ honest conscience, clean hearts and their unsullied
conviction to do what is right under the law.

The issues posed by the instant petition are quite difficult. The task of the Court to resolve the same is made
more daunting because the case involves a former President of the Republic who, in the eyes of certain sectors
of society, deserves to be punished. But the mandate of the Court is to decide these issues solely on the basis
of law and due process, and regardless of the personalities involved. For indeed, the rule of law and the right
to due process are immutable principles that should apply to all, even to those we hate. As Fr. Joaquin G.
Bernas, S.J., a noted constitutionalist, aptly puts it--

x x x the greater disaster would be if the Supreme Court should heed the clamor for conviction and convict
Estrada even under an unconstitutional law but of the belief that Estrada deserves to be punished. That would
be tantamount to a rule of men and not of law.1

The Basic Facts

The petition before us questions the constitutionality of Republic Act No. 7080 (R.A. No. 7080 or Plunder Law),
as amended by Republic Act No. 7659,2 entitled "An Act Defining and Penalizing the Crime of Plunder."3 This
original petition for certiorari and prohibition against Respondent Third Division of the Sandiganbayan filed by
petitioner Joseph Ejercito Estrada assails Respondent court’s Resolution, dated July 9, 2001, denying his
Motion to Quash the information against him in Criminal Case No. 26558 for Plunder. Petitioner likewise prays
that the Sandiganbayan be prohibited and enjoined from proceeding with his arraignment and trial in Criminal
Case No. 26558 due to the unconstitutionality of R. A. No. 7080.

On the heels of the finality of the joint decision of this Court in G.R. No. 146710 (Estrada vs. Desierto, et al.)
and in G.R. No. 146738 (Estrada vs. Macapagal-Arroyo), promulgated on April 3, 2001, upholding the
constitutionality of President Gloria Macapagal-Arroyo’s assumption of office as President of the Republic of
the Philippines and declaring that the former President Joseph Ejercito Estrada no longer enjoyed immunity
from suit, the Ombudsman filed eight (8) Informations against Estrada. These cases were Criminal Case No.
26558 (for Plunder); Criminal Case No. 26559 (for Violation of Sec. 3[a] of Republic Act No. 3019); Criminal
Case No. 26560 (for Violation of Sec. 3[a] of R.A. No. 3019); Criminal Case No. 26561 (for Violation of Sec. 3[e]
of R.A. 3019); Criminal Case No. 26562 (for Violation of Sec. 3[e] of R.A. No. 3019); Criminal Case No. 26563
(for Violation of Sec. 7[d] of R.A. No. 6713); Criminal Case No. 26564 (for Perjury); and Criminal Case No. 26565
(for Illegal Use of Alias).

The aforementioned informations were raffled to the five divisions of the Sandiganbayan. Criminal Case No.
26558 was raffled to the Third Division of said court. The amended information against petitioner charging
violations of Section 2, in relation to Section (d) (1) (2) of the statute reads:

That during the period from June, 1998 to January, 2001, in the Philippines, and within the jurisdiction of this
Honorable Court, accused Joseph Ejercito Estrada, by himself and in conspiracy with his co-accused, business
associates and persons heretofore named, by taking advantage of his official position, authority, connection or

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influence as President of the Republic of the Philippines, did then and there wilfully, unlawfully and criminally
amass, accumulate and acquire ill-gotten wealth, and unjustly enrich himself in the aggregate amount of
P4,097,804,173.17, more or less, through a combination and series of overt and criminal acts, described as
follows:

(a) by receiving, collecting, directly or indirectly, on many instances, so-called "jueteng money" from
gambling operators in connivance with co-accused Jose ‘Jinggoy’ Estrada, Yolanda T. Ricaforte and
Edward Serapio, as witnessed by Gov. Luis ‘Chavit’ Singson, among other witnesses, in the aggregate
amount of FIVE HUNDRED FORTY-FIVE MILLION PESOS (P545,000.000.00), more or less, in
consideration of their protection from arrest or interference by law enforcers in their illegal "jueteng"
activities; and

(b) by misappropriating, converting and misusing for his gain and benefit public fund in the amount of
ONE HUNDRED THIRTY MILLION PESOS (P130,000,000.00), more or less, representing a portion of
One Hundred Seventy Million Pesos (P170,000,000.00) tobacco excise tax share allocated for the
Province of Ilocos Sur under R.A. No. 7171, in conspiracy with co-accused Charlie ‘Atong’ Ang, Alma
Alfaro, Eleuterio Tan a.k.a. Eleuterio Ramos Tan or Mr. Uy, and Jane Doe a.k.a. Delia Rajas, as
witnessed by Gov. Luis ‘Chavit’ Singson, among other witnesses; and

(c) by directing, ordering and compelling the Government Service Insurance System (GSIS) and the
Social Security System (SSS) to purchase and buy a combined total of 681,733,000 shares of stock of
the Belle Corporation in the aggregate gross value of One Billion Eight Hundred Forty-Seven Million
Five Hundred Seventy Eight Thousand Pesos and Fifty Centavos(P1,847,578,057.50), for the purpose
of collecting for his personal gain and benefit, as in fact he did collect and receive the sum of ONE
HUNDRED EIGHTY NINE MILLION SEVEN HUNDRED THOUSAND FIFTY SEVEN PESOS (P189,700,000.00)
as commission for said stock purchase; and

(d) by unjustly enriching himself in the amount of THREE BILLION TWO HUNDRED THIRTY THREE
MILLION ONE HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY THREE PESOS AND SEVENTEEN
CENTAVOS (P3,233,104,173.17) comprising his unexplained wealth acquired, accumulated and
amassed by him under his account name "Jose Velarde" with Equitable PCI Bank:

to the damage and prejudice of the Filipino people and the Republic of the Philippines.

CONTRARY TO LAW.4

On April 16 and 17, 2001, the Ombudsman filed an Ex-Parte Manifestation to Withdraw Information in
Criminal Case Nos. 26559, 26560, 26561, 26562 and 26563. Petitioner registered his objection to the
Ombudsman’s motion to withdraw. The divisions of the Sandiganbayan to which said cases were assigned
granted the withdrawal of the informations, save for that in Criminal Case No. 26561. At present, the Order of
the First Division of the Sandiganbayan denying the Ombudsman’s motion to withdraw in Criminal Case No.
26561 is still under reconsideration.

In Criminal Case No. 26558, petitioner filed on April 11, 2001 an Omnibus Motion for the remand of the case to
the Office of the Ombudsman for: (1) the conduct of a preliminary investigation as regards specification "d" of
the accusations in the information in said case; and (2) reconsideration/reinvestigation of the offenses in
specifications "a," "b" and "c" to enable petitioner to file his counter-affidavits as well as other necessary
documents.

On April 25, 2001, the Third Division of the Sandiganbayan issued a Resolution finding that:

(p)robable cause for the offense of PLUNDER exists to justify issuance of warrants of arrest of accused former
President Joseph Ejercito Estrada, Mayor Jose "Jinggoy" Estrada, Charlie "Atong" Ang, Edward Serapio, Yolanda
T. Ricaforte, Alma Alfaro, John Doe a.k.a Eleuterio Tan or Eleuterio Ramon Tan or Mr. Uy and Jane Doe a.k.a.
Delia Rajas.

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Subsequently, on May 31, 2001, the Third Division of the Sandiganbayan issued a Resolution denying
petitioner’s Omnibus Motion.

On June 15, 2001, petitioner filed a Motion for Reconsideration of said Resolution but the same was denied in
a Resolution of June 25, 2001.

Meanwhile, on June 14, 2001, petitioner filed a Motion to Quash the information in Criminal Case No. 26558,
invoking the following grounds: (1) the facts charged do not constitute an indictable offense as R.A. No. 7080,
the statute on which it is based, is unconstitutional; and (2) the information charges more than one offense.

The People of the Philippines filed an Opposition thereto on June 21, 2001. Petitioner filed his Reply to the
Opposition on June 28, 2001.

On July 9, 2001, the Third Division of the Sandiganbayan issued its Resolution denying petitioner’s motion to
quash.

Petitioner thus filed the instant petition for certiorari and prohibition, claiming that the Sandiganbayan
committed grave abuse of discretion in denying his motion to quash the information in Criminal Case No.
26558. Petitioner argues that R.A. No. 7080 is unconstitutional on the following grounds:

I. IT VIOLATES THE DUE PROCESS CLAUSE FOR ITS VAGUENESS

II. IT VIOLATES THE CONSTITUTIONAL RIGHT OF THE ACCUSED TO KNOW THE NATURE AND CAUSE OF
THE ACCUSATION AGAINST HIM

III. IT VIOLATES THE DUE PROCESS CLAUSE AND THE CONSTITUTIONAL PRESUMPTION OF INNOCENCE
BY LOWERING THE QUANTUM OF EVIDENCE NECESSARY FOR PROVING THE COMPONENT ELEMENTS
OF PLUNDER

IV. IT IS BEYOND THE CONSTITUTIONAL POWER OF THE LEGISLATURE TO DELIMIT THE REASONABLE
DOUBT STANDARD AND TO ABOLISH THE ELEMENT OF MENS REA IN MALA IN SECRIMES BY
CONVERTING THESE TO MALA PROHIBITA, IN VIOLATION OF THE DUE PROCESS CONCEPT OF
CRIMINAL RESPONSIBILITY.5

The provisions of law involved

Section 2 of R.A. No. 7080 provides:

Definition of the Crime of Plunder; Penalties. - Any public officer who, by himself or in connivance with
members of his family, relatives by affinity or consanguinity, business associates, subordinates or other
persons, amasses, accumulates or acquires ill-gotten wealth through a combination or series of overt or
criminal acts as described in Section 1(d) hereof in the aggregate amount or total value of at least Fifty million
pesos (P50,000,000.00) shall be guilty of the crime of plunder and shall be punished by reclusion perpetua to
death. Any person who participated with the said public officer in the commission of an offense contributing to
the crime of plunder shall likewise be punished for such offense. In the imposition of penalties, the degree of
participation and the attendance of mitigating and extenuating circumstances, as provided by the Revised
Penal Code, shall be considered by the court. The court shall declare any and all ill-gotten wealth and their
interests and other incomes and assets including the properties and shares of stocks derived from the deposit
or investment thereof forfeited in favor of the State. (As amended by Sec. 12, RA No. 7659.)

Section 1(d) of the same law defines "ill-gotten wealth" as "any asset, property, business enterprise or material
possession of any person within the purview of Section Two (2)" hereof, acquired by him directly or indirectly
through dummies, nominees, agents, subordinates, and/or business associates by any combination or series of
the following means or similar schemes:

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 1. Through misappropriation, conversion, misuse or malversation of public funds or raids on the
public treasury;

2. By receiving, directly or indirectly, any commission, gift, share, percentage, kickbacks or any other
form of pecuniary benefit from any person and/or entity in connection with any government contract
or project or by reason of the office or position of the public officer concerned;

3. By the illegal or fraudulent conveyance or disposition of assets belonging to the National

Government or any of its subdivisions, agencies or instrumentalities or government-owned or
controlled corporations and their subsidiaries;

4. By obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any other
form of interest or participation including the promise of future employment in any business
enterprise or undertaking;

5. By establishing agricultural, industrial or commercial monopolies or other combination and/or

implementation of decrees and orders intended to benefit particular persons or special interests; or

6. By taking undue advantage of official position, authority, relationship, connection or influence to

unjustly enrich himself or themselves at the expense and to the damage and prejudice of the Filipino
people and the Republic of the Philippines. 6

On the other hand, Section 4 states:

Rule of Evidence - For purposes of establishing the crime of plunder, it shall not be necessary to prove each and
every criminal act done by the accused in furtherance of the scheme or conspiracy to amass, accumulate or
acquire ill-gotten wealth, it being sufficient to establish beyond reasonable doubt a pattern of overt or criminal
acts indicative of the overall unlawful scheme or conspiracy.

Petitioner’s theory

Petitioner asserts that R.A. No. 7080 is vague and overbroad on its face, and suffers from structural deficiency
and ambiguity.7 In sum, he maintains that the law does not afford an ordinary person reasonable notice that
his actuation will constitute a criminal offense. More particularly, petitioner argues that the terms
"combination" and "series" are not clearly defined, citing that in a number of cases, the United States (U.S.)
federal courts in deciding cases under the Racketeer Influenced and Corrupt Organizations Act (RICO law),
after which the Plunder Law was patterned, have given different interpretations to "series of acts or
transactions."8 In addition, he terms "raid on the public treasury," "receiving or accepting a gift,"
"commission," "kickbacks," "illegal or fraudulent conveyance or disposition of assets," "monopolies or other
combinations," "special interests," "taking undue advantage of official position," "unjustly enrich" all suffer
from overbreadth which is a form of vagueness.9

In arguing that the law on plunder is vague and impermissibly broad, petitioner points out that the terms
"combination" and ‘series" used in the phrase "any combination or series of the following means or similar
schemes" are not defined under the statute. The use of these terms in the law allegedly raises several
questions as to their meaning and import.

Petitioner posits the following queries: "Does it (referring to the term "series") mean two, three, four, of the
overt or criminal acts listed in Section 1(d)? Would it mean two or more related enterprises falling under at
least two of the means or ‘similar schemes’ listed in the law, or just a joint criminal enterprise? Would it
require substantial identity of facts and participants, or merely a common pattern of action? Would it imply
close connection between acts, or a direct relationship between the charges? Does the term mean a factual
relationship between acts or merely a common plan among conspirators?"10

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The term "combination" is allegedly equally equivocal. According to petitioner, it is not clear from the law if
said term covers time, place, manner of commission, or the principal characters. Thus petitioner asks: "Does it
(referring to the term "combination") include any two or more acts, whether legal or illegal, or does the law
require that the combination must include at least two of the ‘means or similar schemes’ laid down in R.A.
7080? Does it cover transactions that have occurred in the same place or area, or in different places, no
matter how far apart? Does ‘combination’ include any two or more overt acts, no matter how far apart in
time, or does it contemplate acts committed within a short period of time? Does the ‘combination’ cover
the modus operandi of the crimes, or merely the evidence to be used at the trial?"11

It is also argued that the phrase "pattern of overt or criminal acts indicative of the overall scheme or
conspiracy" adds to the vagueness of the law because "pattern" is not defined therein and is not included in
the definition of the crime of plunder even though it is an essential element of said crime. 12

Petitioner also maintains that the Plunder Law violates the due process clause and the constitutional
presumption of innocence by lowering the quantum of evidence necessary for proving the component
elements of plunder because Section 4 does not require that each and every criminal act done by the accused
in furtherance of the scheme or conspiracy be proved, "it being sufficient to establish beyond reasonable
doubt a pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy." 13

Finally, petitioner alleges that it is beyond the power of Congress to delimit the reasonable doubt standard and
to abolish the element of mens rea in mala in se crimes by converting these to mala prohibita, thereby making
it easier for the prosecution to prove malversation, bribery, estafa and other crimes committed by public
officers since criminal intent need not be established.14

Considering the infringement to the constitutionally-guaranteed right to due process of an accused, petitioner
contends that R.A. No. 7080 cannot be accorded any presumption of constitutional validity.

Respondents’ theory

On the other hand, Respondents argue that the "particular elements constituting the crime of plunder" are
stated with "definiteness and certainty," as follows:

(1) There is a public officer who acts by himself or in connivance with members of his family, relatives
by affinity or consanguinity, business associates, subordinates or other persons;

(2) There is an amassing, accumulating or acquiring of ill-gotten wealth;

(3) The total amount of ill-gotten wealth so amassed, accumulated or acquired is at least Fifty Million
Pesos (P50,000,000.00); and

(4) The ill-gotten wealth, which is defined as any asset, property, business enterprise or material
possession of any person within the purview of Section Two (2) of R.A. No. 7080, was acquired by him
directly or indirectly through dummies, nominees, agents, subordinates, and/or business associates
by any combination or series of the means or similar schemes enumerated in Section 1(d). 15

Moreover, Respondents maintain that assuming that there is some vagueness in the law, it need not be
declared unconstitutional but may be clarified by judicial construction. 16 Respondents further add that the
ordinary import of the terms combination" and "series" should prevail, as can be gleaned from the
deliberations of the Congress in the course of its passage of the law. According to respondents, "series of overt
criminal acts" simply mean a repetition of at least two of any of those enumerated acts found in Section 1(d) of
R.A. 7080. And "combination" means a product of combining of at least one of any of those enumerated acts
described in Section 1(d) with at least one of any of the other acts so enumerated. Respondents score
petitioner for arguing on the basis of federal courts’ decisions on the RICO law, citing that the U.S. courts have
consistently rejected the contention that said law is void for being vague. 17

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Respondents deny that the Plunder Law dispenses with the requirement of proof beyond reasonable doubt.
While there may be no necessity to prove each and every other act done by the accused in furtherance of the
scheme to acquire ill-gotten wealth, it is still necessary for the prosecution to prove beyond reasonable doubt
the pattern of overt or criminal acts indicative of the overall scheme or conspiracy, as well as all the other
elements of the offense of plunder.18 Respondents also point out that conspiracy itself is not punishable under
the Plunder Law, which deals with conspiracy as a means of incurring criminal liability. 19

Respondents likewise contend that it is within the inherent powers and wisdom of the legislature to determine
which acts are mala prohibita in the same way that it can declare punishable an act which is inherently not
criminal in nature.20

In conclusion, Respondents assert that petitioner has failed to overcome the presumption of constitutionality
of R.A. No. 7080.

Petitioner’s Reply

Petitioner, in his Reply to Comment, draws attention to Section 4, arguing that the provision states the "most
important element, which is the common thread that ties the component acts together: "a pattern of overt or
criminal acts indicative of the overall unlawful scheme or conspiracy21 and raises the following questions:

(a) Reference is made to a "pattern of overt or criminal acts." The disjunctive "or" is used. Will a
pattern of acts, which are overt but not criminal in themselves, be indicative of an overall unlawful
scheme or conspiracy?

(b) Under what specific facts or circumstances will a "pattern" be "indicative" of the overall unlawful
scheme or conspiracy?

(c) Under what specific facts or circumstances will the required "pattern" or "scheme" even be said to
be present or to exist?

(d) When is there an "unlawful scheme or conspiracy?" 22

Issues raised in the oral arguments

Oral arguments were heard on September 18, 2001. At said hearing, the Court defined the issues for
resolution as follows:

1.) WHETHER R.A. NO. 7080 IS UNCONSTITUTIONAL FOR BEING VAGUE;

2) WHETHER R.A. NO. 7080 REQUIRES LESS EVIDENCE FOR PROVING THE PREDICATE CRIMES OF
PLUNDER AND THEREFORE VIOLATES THE RIGHT OF THE ACCUSED TO DUE PROCESS; and

3) WHETHER PLUNDER AS DEFINED IN R.A. NO. 7080 IS A MALUM PROHIBITUM AND IF SO, WHETHER
IT IS WITHIN THE POWER OF CONGRESS TO SO CLASSIFY THE SAME.23

Thereafter, both parties filed their respective memoranda in which they discussed the points which they raised
in their earlier pleadings and during the hearing.

I believe that there is merit in the petition.

A penal statute which violates constitutional

guarantees of individual rights is void.

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Every law enacted by Congress enjoys a presumption of constitutionality, 24 and the presumption prevails in the
absence of contrary evidence.25 A criminal statute is generally valid if it does not violate constitutional
guarantees of individual rights.26 Conversely, when a constitutionally protected right of an individual is in
danger of being trampled upon by a criminal statute, such law must be struck down for being void. 27

One of the fundamental requirements imposed by the Constitution upon criminal statutes is that pertaining to
clarity and definiteness. Statutes, particularly penal laws, that fall short of this requirement have been
declared unconstitutional for being vague. This "void-for-vagueness" doctrine is rooted in the basic concept of
fairness as well as the due process clause of the Constitution.

The Constitution guarantees both substantive and procedural due process28 as well as the right of the accused
to be informed of the nature and cause of the accusation against him. 29 A criminal statute should not be so
vague and uncertain that "men of common intelligence must necessarily guess as to its meaning and differ as
to its application.30

There are three distinct considerations for the vagueness doctrine. First, the doctrine is designed to ensure
that individuals are properly warned ex ante of the criminal consequences of their conduct. This "fair notice"
rationale was articulated in United States v. Harriss:31

The constitutional requirement of definiteness is violated by a criminal statute that fails to give a person of
ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute. The underlying
principle is that no man shall be held criminally responsible for conduct which he could not reasonably
understand to be proscribed.32

Second, and viewed as more important, the doctrine is intended to prevent arbitrary and discriminatory law
enforcement.33 Vague laws are invariably "standardless" and as such, they afford too great an opportunity for
criminal enforcement to be left to the unfettered discretion of police officers and prosecutors. 34 Third, vague
laws fail to provide sufficient guidance to judges who are charged with interpreting statutes. Where a statute
is too vague to provide sufficient guidance, the judiciary is arguably placed in the position of usurping the
proper function of the legislature by "making the law" rather than interpreting it. 35

While the dictum that laws be clear and definite does not require Congress to spell out with mathematical
certainty the standards to which an individual must conform his conduct, 36 it is necessary that statutes provide
reasonable standards to guide prospective conduct.37 And where a statute imposes criminal sanctions, the
standard of certainty is higher.38 The penalty imposable on the person found guilty of violating R.A. No. 7080
is reclusion perpetua to death.39 Given such penalty, the standard of clarity and definiteness required of R.A.
No. 7080 is unarguably higher than that of other laws.40

Void-for-vagueness doctrine
applies to criminal laws.

A view has been proffered that "vagueness and overbreadth doctrines are not applicable to penal
laws."41 These two concepts, while related, are distinct from each other. 42 On one hand, the doctrine of
overbreadth applies generally to statutes that infringe upon freedom of speech. 43 On the other hand, the
"void-for-vagueness" doctrine applies to criminal laws, not merely those that regulate speech or other
fundamental constitutional rights.44 The fact that a particular criminal statute does not infringe upon free
speech does not mean that a facial challenge to the statute on vagueness grounds cannot succeed. 45

As earlier intimated, the "vagueness doctrine" is anchored on the constitutionally-enshrined right to due
process of law. Thus, as in this case that the "life, liberty and property" of petitioner is involved, the Court
should not hesitate to look into whether a criminal statute has sufficiently complied with the elementary
requirements of definiteness and clarity. It is an erroneous argument that the Court cannot apply the
vagueness doctrine to penal laws. Such stance is tantamount to saying that no criminal law can be challenged
however repugnant it is to the constitutional right to due process.

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While admittedly, penal statutes are worded in reasonably general terms to accomplish the legislature’s
objective of protecting the public from socially harmful conduct, this should not prevent a vagueness challenge
in cases where a penal statute is so indeterminate as to cause the average person to guess at its meaning and
application. For if a statute infringing upon freedom of speech may be challenged for being vague because
such right is considered as fundamental, with more reason should a vagueness challenge with respect to a
penal statute be allowed since the latter involve deprivation of liberty, and even of life which, inarguably, are
rights as important as, if not more than, free speech.

It has been incorrectly suggested46 that petitioner cannot mount a "facial challenge" to the Plunder Law, and
that "facial" or "on its face" challenges seek the total invalidation of a statute.47 Citing Broadrick v.
Oklahoma,48 it is also opined that "claims of facial overbreadth have been entertained in cases involving
statutes which, by their terms, seek to regulate only spoken words" and that "overbreadth claims, if
entertained at all, have been curtailed when invoked against ordinary criminal laws that are sought to be
applied to protected conduct." For this reason, it is argued further that "on its face invalidation of statutes has
been described as ‘manifestly strong medicine,’ to be employed ‘sparingly and only as a last resort.’" A reading
of Broadrick, however, shows that the doctrine involved therein was the doctrine of overbreadth. Its
application to the present case is thus doubtful considering that the thrust at hand is to determine whether
the Plunder Law can survive the vagueness challenge mounted by petitioner. A noted authority on
constitutional law, Professor Lockhart, explained that "the Court will resolve them (vagueness challenges) in
ways different from the approaches it has fashioned in the law of overbreadth."49 Thus, in at least two
cases,50 the U.S. courts allowed the facial challenges to vague criminal statutes even if these did not implicate
free speech

In Kolender v. Lawson,51 petitioners assailed the constitutionality of a California criminal statute which
required persons who loiter or wander on the streets to provide a credible and reasonable identification and
to account for their presence when requested by a peace officer under circumstances that would justify a valid
stop. The U.S. Supreme Court held that said statute was unconstitutionally vague on its face within the
meaning of the due process clause of the Fourteenth Amendment because it encourages arbitrary
enforcement by failing to clarify what is contemplated by the requirement that a suspect provide a "credible
and reasonable identification." Springfield vs. Oklahoma52 on the other hand involved a challenge to a
Columbus city ordinance banning certain assault weapons. The court therein stated that a criminal statute may
be facially invalid even if it has some conceivable application. It went on to rule that the assailed ordinance’s
definition of "assault weapon" was unconstitutionally vague, because it was "fundamentally irrational and
impossible to apply consistently by the buying public, the sportsman, the law enforcement officer, the
prosecutor or the judge."53

It is incorrect to state that petitioner has made "little effort to show the alleged invalidity of the statute as
applied to him, as he allegedly "attacks ‘on their face’ not only §§ 1(d)(1) and (2) of R.A. 7080 under which he is
charged, but also its other provisions which deal with plunder committed by illegal or fraudulent disposition of
government assets (§1(d)(3)), acquisition of interest in business (§1(d)(4)), and establishment of monopolies
and combinations or implementation of decrees intended to benefit particular persons or special interests (§
1(d)(5))."54 Notably, much of petitioner’s arguments dealt with the vagueness of the key phrases "combination
or series" and "pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy" which
go into the very nature of the crime for which he is charged.

Taking into consideration that the Plunder Law is a penal statute that imposes the supreme penalty of death,
and that petitioner in this case clearly has standing to question its validity inasmuch as he has been charged
thereunder and that he has been for sometime now painfully deprived of his liberty, it behooves this Court to
address the challenge on the validity of R.A. No. 7080.

Men steeped in law find

difficulty in understanding plunder.

The basic question that arises, therefore, is whether the clauses in Section 2--

combination or series of overt or criminal acts as described in Section 1(d) hereof

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and Section 1(d), which provides--

x x x by any combination or series of the following means or similar schemes:

1) Through misappropriation, conversion, misuse, or malversation of public funds or raids on the public
treasury;

xxx

6) By taking undue advantage of official position, authority, relationship, connection or influence to unjustly
enrich himself or themselves at the expense and to the damage and prejudice of the Filipino people and the
Republic of the Philippines.

as qualified by Section 4 which also speaks of the "scheme or conspiracy to amass, accumulate or acquire ill-
gotten wealth" and of "a pattern of overt or criminal acts indicative of the overall unlawful scheme or
conspiracy," are clear enough that a person "of common intelligence" need not guess at their meaning and
differ as to their application.

The above raise several difficult questions of meaning which go to the very essence of the offense, such as:

a. How many acts would constitute a "combination or series?"

b. Must the acts alleged to constitute the "combination or series" be similar in nature? Note that
Section 1(d) speaks of "similar schemes" while Section 4 speaks of "the scheme" and of "a pattern of
overt or criminal acts indicative of the overall unlawful scheme or conspiracy."

c. Must the "combination or series" of "overt or criminal acts" involving the aggregate amount of at
least P50 million be conceived as such a scheme or a "pattern of overt or criminal acts" from
inception by the accused?

d. What would constitute a "pattern"? What linkage must there be between and among the acts to
constitute a "pattern"? Need there be a linkage as to the persons who conspire with one another, and
a linkage as to all the acts between and among them?

e. When Section 4 speaks of "indicative of the overall unlawful scheme or conspiracy," would this
mean that the "scheme" or "conspiracy" should have been conceived or decided upon in its entirety,
and by all of the participants?

f. When committed in connivance "with members of his family, relatives by affinity or consanguinity,
business associates, subordinates or other persons" or through "dummies, nominees, agents,
subordinates and/or business associates", would such fact be part of the "pattern of overt or criminal
acts" and of the "overall unlawful scheme or conspiracy" such that all of those who are alleged to
have participated in the crime of plunder must have participated in each and every act allegedly
constituting the crime of plunder? And as in conspiracy, conspired together from inception to commit
the offense?

g. Within what time frame must the acts be committed so as to constitute a "combination or series"?

I respectfully disagree with the majority that "ascertainable standards and well-defined parameters" are
provided in the law55 to resolve these basic questions.

Even men steeped in the knowledge of the law are in a quandary as to what constitutes plunder. The Presiding
Justice of the Sandiganbayan, Justice Francis Garchitorena, admitted that the justices of said court "have been
quarrelling with each other in finding ways to determine what [they] understand by plunder."56 Senator

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Neptali Gonzales also noted during the deliberations of Senate Bill No. 733 that the definition of plunder
under the law is vague. He bluntly declared: "I am afraid that it might be faulted for being violative of the due
process clause and the right to be informed of the nature and cause of the accusation of an accused. 57 Fr.
Bernas, for his part, pointed to several problematical portions of the law that were left unclarified. He posed
the question: "How can you have a 'series' of criminal acts if the elements that are supposed to constitute
the series are not proved to be criminal?"58

The meanings of "combination" and "series"

as used in R.A. No. 7080 are not clear.

Although the law has no statutory definition of "combination" or "series", the majority is of the view that
resort can be had to the ordinary meaning of these terms. Thus, Webster's Third New International Dictionary
gives the meaning of "combination": "the result or product or product of combining: a union or aggregate
made of combining one thing with another."59

In the context of R.A. No. 7080, "combination" as suggested by the Solicitor General means that at least two of
the enumerated acts found in Section 1(d), i.e., one of any of the enumerated acts, combined with another act
falling under any other of the enumerated means may constitute the crime of plunder. With respect to the
term "series," the majority states that it has been understood as pertaining to "two or more overt or criminal
acts falling under the same category"60 as gleaned from the deliberations on the law in the House of
Representatives and the Senate.

Further, the import of "combination" or "series" can be ascertained, the majority insists, 61 from the following
deliberations in the Bicameral Conference Committee on May 7, 1991:

REP. ISIDRO: I am just intrigued again by our definition of plunder. We say, THROUGH A COMBINATION OR
SERIES OF OVERT OR CRIMINAL ACTS AS MENTIONED IN SECTION ONE HEREOF. Now when we say
combination, we actually mean to say, if there are two or more means, we mean to say that number one and
two or number one and something else are included, how about a series of the same act? For example,
through misappropriation, conversion, misuse, will these be included also?

THE CHAIRMAN (REP. GARCIA): Yeah, because we say series.

REP. ISIDRO: Series.

THE CHAIRMAN (REP. GARCIA): Yeah, we include series.

REP. ISIDRO: But we say we begin with a combination.

THE CHAIRMAN: (REP. GARCIA): Yes.

REP. ISIDRO: When we say combination, it seems that-

THE CHAIRMAN (REP. GARCIA): Two.

REP. ISIDRO: Not only two but we seem to mean that two of the enumerated means not twice of one
enumeration.

THE CHAIRMAN: (REP. GARCIA): No, no, not twice.

REP. ISIDRO: Not twice?

THE CHAIRMAN (REP. GARCIA): Yes. Combination is not twice—but combination, two acts.

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JC ISIDRO
REP. ISIDRO: So in other words, that’s it. When we say combination, we mean two different acts. It can not be
a repetition of the same act.

THE CHAIRMAN (REP. GARCIA): That be referred to series. Yeah.

REP. ISIDRO: No, no. Supposing one act is repeated, so there are two.

THE CHAIRMAN (REP. GARCIA): A series.

REP. ISIDRO: That’s not series. It’s a combination. Because when we say combination or series, we seem to say
that two or more, ‘di ba?

THE CHAIRMAN: (REP. GARCIA): Yes, This distinguishes it, really, from the ordinary crimes. That is why, I said,
that is a very good suggestion because if it is only one act, it may fall under ordinary crime but we have here a
combination or series of overt or criminal acts. So…

HON. ISIDRO: I know what you are talking about. For example, through misappropriation, conversion, misuse
or malversation of public funds who raids the public treasury, now, for example, misappropriation, if there are
a series of misappropriations?

xxx

THE CHAIRMAN (REP. GARCIA): Series. One after the other eh di…

THE CHAIRMAN (SEN TAÑADA): So that would fall under term "series"?

THE CHAIRMAN (REP. GARCIA): Series, oo.

REP. ISIDRO: Now, if it is combination, ano, two misappropriations…

THE CHAIRMAN (REP. GARCIA): It’s not… two misappropriations will not be combination. Series.

REP. ISIDRO: So, it is not a combination?

THE CHAIRMAN (REP. GARCIA): Yes.

REP. ISIDRO: When you say "combination", two different?

THE CHAIRMAN (REP. GARCIA): Yes.

THE CHAIRMAN (SEN. TAÑADA): Two different.

REP. ISIDRO: Two different acts.

THE CHAIRMAN (REP. GARCIA): For example, ha…

REP. ISIDRO: Now a series, meaning, repetition…62

The following deliberations in the Senate are pointed to by the majority 63 to show that the words
"combination" and "series" are given their ordinary meaning:

Senator Maceda. In line of our interpellations that sometimes "one" or maybe even "two" acts may already
result in such a big amount, on line 25, would the Sponsor consider deleting the words "a series of overt or".

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JC ISIDRO
To read, therefore: "or conspiracy COMMITTED by criminal acts such as". Remove the idea of necessitating "a
series". Anyway, the criminal acts are in the plural.

Senator Tañada. That would mean a combination of two or more of the acts mentioned in this.

The President. Probably, two or more would be….

Senator Maceda. Yes, because ‘a series’ implies several or many’ two or more.

Senator Tañada. Accepted, Mr. President.

xxx

The President. If there is only one, then he has to be prosecuted under the particular crime. But when we say
‘acts of plunder’ there should be, at least, two or more.

Senator Romulo. In other words, that is already covered by existing laws, Mr. President. 64

To my mind, resort to the dictionary meaning of the terms "combination" and "series" as well as recourse to
the deliberations of the lawmakers only serve to prove that R.A. No. 7080 failed to satisfy the strict
requirements of the Constitution on clarity and definiteness. Note that the key element to the crime of
plunder is that the public officer, by himself or in conspiracy with others, amasses, accumulates, or acquires
"ill-gotten wealth" through a "combination or series of overt or criminal acts" as described in Section 1(d) of
the law. Senator Gonzales, during the deliberations in the Senate, already raised serious concern over the lack
of a statutory definition of what constitutes "combination" or "series", consequently, expressing his fears that
Section 2 of R.A. No. 7080 might be violative of due process:

Senator Gonzales. To commit the offense of plunder, as defined in this Act and while constituting a single
offense, it must consist of a series of overt or criminal acts, such as bribery, extortion, malversation of public
funds, swindling, illegal exaction, and graft or corrupt practices act and like offenses. Now, Mr. President, I
think, this provision, by itself will be vague. I am afraid that it might be faulted for being violative of the due
process clause and the right to be informed of the nature and cause of accusation of an accused. Because,
what is meant by "series of overt or criminal acts"? I mean, would 2, 3, 4 or 5 constitute a series? During the
period of amendments, can we establish a minimum of overt acts like, for example, robbery in band? The law
defines what is robbery in band by the number of participants therein. In this particular case probably, we can
statutorily provide for the definition of "series" so that two, for example, would that be already a series? Or,
three, what would be the basis for such determination?65(Emphasis supplied.)

The point raised by Senator Gonzales is crucial and well-taken. I share petitioner’s observation that when penal
laws enacted by Congress make reference to a term or concept requiring a quantitative definition, these laws
are so crafted as to specifically state the exact number or percentage necessary to constitute the elements of a
crime. To cite a few:

"Band" – "Whenever more than three armed malefactors shall have acted together in the commission of an
offense, it shall be deemed to have been committed by a band." (Article 14[6], Revised Penal Code) 66

"Conspiracy" – "A conspiracy exists when two or more persons come to an agreement concerning the
commission of a felony and decide to commit it." (Article 8, Revised Penal Code) 67

"Illegal Recruitment by a Syndicate" – "Illegal recruitment is deemed committed by a syndicate if carried out by
a group of three (3) or more persons conspiring and/or confederating with one another in carrying out any
unlawful or illegal transaction, enterprise or scheme x x x." (Section 38, Labor Code)

"Large-scale Illegal Recruitment" – "Illegal recruitment is deemed committed in large scale if committed
against three (3) or more persons individually or as a group." (Section 38, Labor Code)

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"Organized/Syndicated Crime Group" – "[M]eans a group of two or more persons collaborating, confederating
or mutually helping one another for purposes of gain in the commission of any crime." (Article 62 (1)(1a),
Revised Penal Code)68

"Swindling by a Syndicate" – "x x x if the swindling (estafa) is committed by a syndicate consisting of five or
more persons formed with the intention of carrying out the unlawful or illegal act, transaction, enterprise or
scheme x x x ." (Section 1, P.D. No. 1689)69

The deliberations of the Bicameral Conference Committee and of the Senate cited by the majority, consisting
mostly of unfinished sentences, offer very little help in clarifying the nebulous concept of plunder. All that they
indicate is that Congress seemingly intended to hold liable for plunder a person who: (1) commits at least two
counts of any one of the acts mentioned in Section 1(d) of R.A. No. 7080, in which case, such person commits
plunder by a series of overt criminal acts; or (2) commits at least one count of at least two of the acts
mentioned in Section 1(d), in which case, such person commits plunder by a combination of overt criminal
acts. Said discussions hardly provide a window as to the exact nature of this crime.

A closer look at the exchange between Representatives Garcia and Isidro and Senator Tañada would imply that
initially, combination was intended to mean "two or more means,"70 i.e., "number one and two or number one
and something else x x x,"71 "two of the enumerated means not twice of one enumeration," 72 "two different
acts."73Series would refer to "a repetition of the same act." 74 However, the distinction was again lost as can be
gleaned from the following:

THE CHAIRMAN (REP. GARCIA) Yes. Combination is not twice – but combination, two acts.

REP. ISIDRO. So in other words, that’s it. When we say combination, we mean, two different acts. It can not be
a repetition of the same act.

THE CHAIRMAN (REP. GARCIA). That be referred to series. Yeah.

REP. ISIDRO. No, no. Supposing one act is repeated, so there are two.

THE CHAIRMAN (REP. GARCIA). A series.

REP. ISIDRO. That’s not series. It’s a combination. Because when we say combination or series, we seem to say
that two or more, ‘di ba?

THE CHAIRMAN (REP. GARCIA). Yes. This distinguishes it really the ordinary --- That’s why I said, that’s a very
good suggestion, because if its’ only one act, it may fall under ordinary crime. But we have here a combination
or series, of overt or criminal acts" (Emphasis supplied).75

xxx

THE CHAIRMAN (REP. GARCIA P.) Series. One after the other eh di…

THE CHAIRMAN (SEN. TAÑADA) So, that would fall under the term "series"?

THE CHAIRMAN (REP. GARCIA P) Series, oo.

REP. ISIDRO. Now, if it is combination, ano, two misappropriations…

THE CHAIRMAN (REP. GARCIA) It’s not… two misappropriations will not be combination. Series.

REP. ISIDRO. So, it is not a combination?

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JC ISIDRO
THE CHAIRMAN. (REP. GARCIA P.) Yes.

REP. ISIDRO. When we say "combination", two different?

THE CHAIRMAN (REP. GARCIA P.) Yes.

THE CHAIRMAN (SEN. TAÑADA) Two different.

REP. ISIDRO. Two different acts.

THE CHAIRMAN (REP. GARCIA P.) For example, ha…

REP. ISIDRO. Now a series, meaning, repetition…

THE CHAIRMAN (SEN. TAÑADA) Yes.

REP. ISIDRO. With that…

THE CHAIRMAN (REP. GARCIA P.) Thank you.

THE CHAIRMAN (SEN. TAÑADA) So, it could be a series of any of the acts mentioned in paragraphs 1, 3, 4, 5 of
Section 2 (d), or… 1 (d) rather, or a combination of any of the acts mentioned in paragraph 1 alone, or
paragraph 2 alone or paragraph 3 or paragraph 4.

THE CHAIRMAN (REP. GARCIA P.) I think combination maybe…which one? Series?

THE CHAIRMAN (SEN. TAÑADA) Series or combination.

REP. ISIDRO. Which one, combination or series or series or combination?

THE CHAIRMAN (SEN. TAÑADA) Okay. Ngayon doon sa definition, ano, Section 2, definition, doon sa portion
ng… Saan iyon? As mentioned, as described…

THE CHAIRMAN (REP. GARCIA P.) Described. I think that is…

THE CHAIRMAN (SEN. TAÑADA) … better than "mentioned". Yes.

THE CHAIRMAN (REP. GARCIA P.) Okay?

REP. ISIDRO. Very good.

THE CHAIRMAN. (SEN. TAÑADA) Oo, marami pong salamat.

THE CHAIRMAN (REP. GARCIA P.) Maraming salamat po.

The meeting was adjourned at 1:33 p.m."76 (Emphasis supplied.)

The aforequoted deliberations, especially the latter part thereof, would show a dearth of focus to render
precise the definition of the terms. Phrases were uttered but were left unfinished. The examples cited were
not very definite. Unfortunately, the deliberations were apparently adjourned without the Committee
members themselves being clear on the concept of series and combination.

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Moreover, if "combination" as used in the law simply refers to the amassing, accumulation and acquisition of
ill-gotten wealth amounting to at least P50 Million through at least two of the means enumerated in Section
1(d), and "series," to at least two counts of one of the modes under said section, the accused could be meted
out the death penalty for acts which, if taken separately, i.e., not considered as part of the combination or
series, would ordinarily result in the imposition of correctional penalties only. If such interpretation would be
adopted, the Plunder law would be so oppressive and arbitrary as to violate due process and the constitutional
guarantees against cruel or inhuman punishment.77 The penalty would be blatantly disproportionate to the
offense. Petitioner’s examples illustrate this absurdity:

a. One act of indirect bribery (penalized under Art. 211 of the Revised Penal Code with prision correccional in
its medium and maximum periods),

combined with -

one act of fraud against the public treasury (penalized under Art. 213 of the Revised Penal Code with prision
correccional in its medium period to prision mayor in its minimum period).

equals –

Plunder (punished by reclusion perpetua to death plus forfeiture of assets under R. A. 7080)

b. One act of prohibited transaction (penalized under Art. 215 of the Revised Penal Code with prision
correccional in its minimum period or a fine ranging from P200 to P1,000 or both).

combined with –

one act of establishing a commercial monopoly (penalized under Art. 186 of Revised Penal Code with prision
correccional in its minimum or a fine ranging from P200 to P6,00, or both.

equals –

Plunder (punished by reclusion perpetua to death, and forfeiture of assets under R.A. 7080).

c. One act of possession of prohibited interest by a public officer (penalized with prision correccional in its
minimum period or a fine of P200 to P1,000, or both under Art. 216 of the Revised Penal Code).

combined with –

one act of combination or conspiracy in restraint of trade (penalized under Art. 186 of the Revised Penal Code
with prision correccional in its minimum period, or a fine of P200 to P1,000, or both),

equals –

plunder (punished by reclusion perpetua to death, and forfeiture of assets).78

The argument that higher penalties may be imposed where two or more distinct criminal acts are combined
and are regarded as special complex crimes, i.e., rape with homicide, does not justify the imposition of the
penalty of reclusion perpetua to death in case plunder is committed. Taken singly, rape is punishable
by reclusion perpetua;79and homicide, by reclusion temporal.80 Hence, the increase in the penalty imposed
when these two are considered together as a special complex crime is not too far from the penalties imposed
for each of the single offenses. In contrast, as shown by the examples above, there are instances where the
component crimes of plunder, if taken separately, would result in the imposition of correctional penalties only;
but when considered as forming part of a series or combination of acts constituting plunder, could be

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punishable by reclusion perpetua to death. The disproportionate increase in the penalty is certainly violative of
substantive due process and constitute a cruel and inhuman punishment.

It may also be pointed out that the definition of "ill-gotten wealth" in Section 1(d) has reference to the
acquisition of property (by the accused himself or in connivance with others) "by any combination or series" of
the "means" or "similar schemes" enumerated therein, which include the following:

xxx

4. By obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any other forms of
interest or participation including the promise of future employment or any business enterprise or
undertakings;

5. By establishing agricultural, industrial or commercial monopolies or other combination and/or

implementation of decrees and orders intended to benefit particular persons or special interests;

xxx

The above-mentioned acts are not, by any stretch of the imagination, criminal or illegal acts. They involve the
exercise of the right to liberty and property guaranteed by Article III, Section 1 of the Constitution which
provides that "No person shall be deprived of life, liberty or property without due process of law, nor shall any
person be denied the equal protection of the laws." Receiving or accepting any shares of stock is not per
se objectionable. It is in pursuance of civil liberty, which includes "the right of the citizen to be free to use his
faculties in all lawful ways; x x x to earn his livelihood by any lawful calling; to pursue any avocation, and/or
that purpose, to enter into all contracts which may be proper, necessary and essential to his carrying out these
purposes to a successful conclusion.81 Nor is there any impropriety, immorality or illegality in establishing
agricultural, industrial or commercial monopolies or other combination and/or implementation of decrees and
orders even if they are intended to benefit particular persons or special interests. The phrases "particular
persons" and "special interests" may well refer to the poor,82the indigenous cultural
communities,83 labor,84 farmers,85 fisherfolk,86 women,87 or those connected with education, science and
technology, arts, culture and sports.88

In contrast, the monopolies and combinations described in Article 186 of the Revised Penal Code are
punishable because, as specifically defined therein, they are "on restraint of trade or commerce or to prevent
by artificial means of free competition in the market, or the object is "to alter the price" of any merchandise
"by spreading false rumors," or to manipulate market prices in restraint of trade. There are no similar elements
of monopolies or combinations as described in the Plunder Law to make the acts wrongful.

If, as interpreted by the Solicitor General, "series" means a "repetition" or pertains to "two or more" acts, and
"combination as defined in the Webster’s Third New International Dictionary is "the result or product of
combining one thing with another,"89 then, the commission of two or more acts falling under paragraphs (4)
and (5) of Section 1(d) would make innocent acts protected by the Constitution as criminal, and punishable
by reclusion perpetua to death.

R.A. No. 7080 does not define "pattern,"

an essential element of the crime of plunder.

Granting arguendo that, as asserted by the majority, "combination" and "series" simplistically mean the
commission of two or more of the acts enumerated in Section 1(d), 90 still, this interpretation does not cure the
vagueness of R.A. No. 7080. In construing the definition of "plunder," Section 2 of R.A. No. 7080 must not be
read in isolation but rather, must be interpreted in relation to the other provisions of said law. It is a basic rule
of statutory construction that to ascertain the meaning of a law, the same must be read in its
entirety.91 Section 1 taken in relation to Section 4 suggests that there is something to plunder beyond simply
the number of acts involved and that a grand scheme to amass, accumulate or acquire ill-gotten wealth is
contemplated by R.A. No. 7080. Sections 1 and 2 pertain only to the nature and quantitative means or acts by

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which a public officer, by himself or in connivance with other persons, "amasses, accumulates or acquires ill-
gotten wealth." Section 4, on the other hand, requires the presence of elements other than those enumerated
in Section 2 to establish that the crime of plunder has been committed because it speaks of the necessity to
establish beyond reasonable doubt a "pattern of overt or criminal acts indicative of the overall unlawful
scheme or conspiracy."

Clearly, it will not suffice that the "illegal wealth" amassed is at least Fifty Million Pesos and that this was
acquired by any two or more of the acts described in Section 1(d); it is necessary that these acts constitute a
"combination or series" of acts done in furtherance of "the scheme or conspiracy to amass, accumulate or
acquire ill-gotten wealth", and which constitute "a pattern of overt or criminal acts indicative of the overall
scheme or conspiracy."

That pattern is an essential element of the crime of plunder is evident from a reading of the assailed law in its
entirety. It is that which would distinguish plunder from isolated criminal acts punishable under the Revised
Penal Code and other laws, for without the existence a "pattern of overt or criminal acts indicative of the
overall scheme or conspiracy" to acquire ill-gotten wealth, a person committing several or even all of the acts
enumerated in Section 1(d) cannot be convicted for plunder, but may be convicted only for the specific crimes
committed under the pertinent provisions of the Revised Penal Code or other laws.

For this reason, I do not agree that Section 4 is merely a rule of evidence or a rule of procedure. It does not
become such simply because its caption states that it is, although its wording indicates otherwise. On the
contrary, it is of substantive character because it spells out a distinctive element of the crime which has to be
established, i.e., an overall unlawful "scheme or conspiracy" indicated by a "pattern of overt or criminal acts"
or means or similar schemes "to amass, accumulate or acquire ill-gotten wealth."

The meaning of the phrase "pattern of overt or criminal acts indicative of the overall unlawful scheme or
conspiracy," however, escapes me. As in "combination" and "series," R.A. No. 7080 does not provide a
definition of "pattern" as well as "overall unlawful scheme." Reference to the legislative history of R.A. No.
7080 for guidance as to the meanings of these concepts would be unavailing, since the records of the
deliberations in Congress are silent as to what the lawmakers mean by these terms.

Resort to the dictionary meanings of "pattern" and "scheme" is, in this case, wholly inadequate. These words
are defined as:

pattern: an arrangement or order of things or activity. 92

scheme: design; project; plot.93

At most, what the use of these terms signifies is that while multiplicity of the acts (at least two or more) is
necessary, this is not sufficient to constitute plunder. As stated earlier, without the element of "pattern"
indicative of an "overall unlawful scheme," the acts merely constitute isolated or disconnected criminal
offenses punishable by the Revised Penal Code or other special laws.

The commission of two or more of the acts falling under Section 1(d) is no guarantee that they fall into a
"pattern" or "any arrangement or order." It is not the number of acts but the relationship that they bear to
each other or to some external organizing principle that renders them "ordered" or "arranged":

A pattern is an arrangement or order of things, or activity, and the mere fact that there are a number of
predicates is no guarantee that they fall into an arrangement or order. It is not the number of predicates but
the relationship that they bear to each other or to some external organizing principle that renders them
‘ordered’ or ‘arranged.’ 94

In any event, it is hardly possible that two predicate acts can form a pattern:

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The implication is that while two acts are necessary, they may not be sufficient. Indeed, in common parlance,
two of anything will not generally form a ‘pattern.’95

In H. J. Inc. v. Northwestern Bell Telephone Co. et al.96 (hereinafter referred to as Northwestern), the U.S. Court
reiterated the foregoing doctrine:

xxx Nor can we agree with those courts that have suggested that a pattern is established merely by proving
two predicate acts.97

Respondents’ metaphorical illustration of "pattern" as a wheel with spokes (the overt or criminal acts of the
accused) meeting at a common center (the acquisition of ill-gotten wealth) and with a rim (the overall unlawful
scheme or conspiracy) of the wheel enclosing the spokes, is off tangent. Their position that two spokes suffice
to make a wheel, even without regard to the relationship the spokes bear to each other clearly demonstrates
the absurdity of their view, for how can a wheel with only two spokes which are disjointed function properly?

That "pattern" is an amorphous concept even in U.S. jurisprudence where the term is reasonably defined is
precisely the point of the incisive concurring opinion of Justice Antonin Scalia in Northwestern where he
invited a constitutional challenge to the RICO law on "void-for-vagueness" ground.98 The RICO law is a federal
statute in the United States that provides for both civil and criminal penalties for violation therefor. It
incorporates by reference twenty-four separate federal crimes and eight types of state felonies. 99 One of the
key elements of a RICO violation is that the offender is engaged in a "pattern of racketeering activity." 100 The
RICO law defines the phrase "pattern of racketeering activity" as requiring "at least two acts of racketeering
activity, one of which occurred after the effective date of 18 USCS § 1961, and within ten years (excluding any
period of imprisonment) after the commission of a prior act of racketeering activity." 101 Incidentally, the
Solicitor General claims that R.A. No. 7080 is an entirely different law from the RICO law. The deliberations in
Congress reveal otherwise. As observed by Rep. Pablo Garcia, Chairman of the House of Representatives
Committee on Justice, R.A. No. 7080 was patterned after the RICO law.102

In Northwestern, conceding that "[the U.S. Congress] has done nothing . . . further to illuminate RICO’s key
requirement of a pattern of racketeering," the U.S. Supreme Court, through Justice William J. Brennan, Jr.,
undertook the task of developing a meaningful concept of "pattern" within the existing statutory
framework.103Relying heavily on legislative history, the US Supreme Court in that case construed "pattern" as
requiring "continuity plus relationship."104 The US Supreme Court formulated the "relationship requirement" in
this wise: "Criminal conduct forms a pattern if it embraces criminal acts that have the same or similar
purposes, results, participants, victims, or methods of commission, or otherwise are interrelated by
distinguishing characteristics and are not isolated events." 105 Continuity is clarified as "both a closed and open-
ended concept, referring either to a closed period of repeated conduct, or to past conduct that by its nature
projects into the future with a threat of repetition."106

In his separate concurring opinion, Justice Scalia rejected the majority’s formulation. The "talismanic phrase"
of "continuity plus relationship" is, as put by Justice Scalia, about as helpful as advising the courts that "life is a
fountain." He writes:

x x x Thus, when §1961(5) says that a pattern "requires at least two acts of racketeering activity" it is
describing what is needful but not sufficient. (If that were not the case, the concept of "pattern" would have
been unnecessary, and the statute could simply have attached liability to "multiple acts of racketeering
activity"). But what that something more is, is beyond me. As I have suggested, it is also beyond the Court.
Today’s opinion has added nothing to improve our prior guidance, which has created a kaleidoscope of Circuit
positions, except to clarify that RICO may in addition be violated when there is a "threat of continuity." It
seems to me this increases rather than removes the vagueness. There is no reason to believe that the Court of
Appeals will be any more unified in the future, than they have in the past, regarding the content of this law.

That situation is bad enough with respect to any statute, but it is intolerable with respect to RICO. For it is not
only true, as Justice Marshall commented in Sedima, S.P.R.L. vs. Imrex Co., 473 U.S. 479 x x x, that our
interpretation of RICO has "quite simply revolutionize[d] private litigation" and "validate[d] the federalization

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of broad areas of state common law of frauds," x x x so that clarity and predictability in RICO’s civil applications
are particularly important; but it is also true that RICO, since it has criminal applications as well, must, even in
its civil applications, possess the degree of certainty required for criminal laws x x x. No constitutional
challenge to this law has been raised in the present case, and so that issue is not before us. That the highest
court in the land has been unable to derive from this statute anything more than today’s meager guidance
bodes ill for the day when that challenge is presented.107

It bears noting that in Northwestern the constitutionality of the RICO law was not
challenged.108 After Northwestern,the U.S. Supreme Court has so far declined the opportunity to hear cases in
which the void-for-vagueness challenge to the pattern requirement was raised.109

Admittedly, at the district courts level, the state statutes (referred to as Little RICOS)110 have so far successfully
survived constitutional challenge on void-for-vagueness ground. However, it must be underscored that, unlike
R.A. No. 7080, these state anti-racketeering laws have invariably provided for a reasonably clear,
comprehensive and understandable definition of "pattern." 111 For instance, in one state, the pattern
requirement specifies that the related predicate acts must have, among others, the same or similar purpose,
result, principal, victims or methods of commission and must be connected with "organized crime.112 In four
others, their pattern requirement provides that two or more predicate acts should be related to the affairs of
the enterprise, are not isolated, are not closely related to each other and connected in point of time and place,
and if they are too closely related, they will be treated as a single act. 113 In two other states, pattern
requirements provide that if the acts are not related to a common scheme, plan or purpose, a pattern may still
exist if the participants have the mental capacity required for the predicate acts and are associated with the
criminal enterprise.114

All the foregoing state statutes require that the predicate acts be related and that the acts occur within a
specified time frame.

Clearly, "pattern" has been statutorily defined and interpreted in countless ways by circuit courts in the United
States. Their divergent conclusions have functioned effectively to create variant criminal offenses. 115 This
confusion has come about notwithstanding that almost all these state laws have respectively statutorily
defined "pattern". In sharp contrast, R.A. No. 7080, as earlier pointed out, lacks such crucial definition. As to
what constitutes pattern within the meaning of R.A. No. 7080 is left to the ad hoc interpretation of
prosecutors and judges. Neither the text of R.A. No. 7080 nor legislative history afford any guidance as to what
factors may be considered in order to prove beyond reasonable doubt "pattern of overt or criminal acts
indicative of the overall unlawful scheme or conspiracy."

Be that as it may, it is glaringly fallacious to argue that "series" simply means a "repetition" or "pertaining to
two or more" and "combination" is the "result or product or product of combining." Whether two or more or
at least three acts are involved, the majority would interpret the phrase "combinations' or "series" only in
terms of number of acts committed. They entirely overlook or ignore Section 4 which requires "a pattern of
overt of criminal acts indicative of the overall unlawful scheme or conspiracy" to convict.

If the elements of the offense are as what the majority has suggested, the crime of plunder could have been
defined in the following manner:

Where a public official, by himself or in conspiracy with others, amasses or acquires money or property by
committing two or more acts in violation of Section 3 of the Anti-Graft and Corrupt Practices Act (R.A. 3019),
or Articles 210, 211, 212, 213, 214, 215, 216 and 217 of the Revised Penal Code, he shall be guilty of the crime
of plunder and shall be punished by reclusion perpetua to death.

The above would be a straightforward and objective definition of the crime of plunder. However, this would
render meaningless the core phrases "a combination or series of" "overt or criminal acts indicative of the
overall unlawful scheme or conspiracy," or the phrase "any combination or series of the following means or
similar schemes" or "a pattern of overt or criminal acts indicative of the overall unlawful scheme or
conspiracy."

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But that obviously is not the definition of the crime of plunder under R.A. 7080. There is something more. A
careful reading of the law would unavoidably compel a conclusion that there should be a connecting link
among the "means or schemes" comprising a "series or combination" for the purpose of acquiring or amassing
"ill-gotten wealth." The bond or link is an "overall unlawful scheme or conspiracy mentioned in Section 4. The
law contemplates a combination or series of criminal acts in plunder done by the accused "in furtherance of
the scheme or conspiracy to amass, accumulate or acquire ill-gotten wealth." It does not postulate acts
committed randomly, separately or independently or sporadically. Otherwise stated, if the legislature
intended to define plunder as the acquisition of ill-gotten wealth in the manner espoused by the majority, the
use in R.A. 7080 of such words and phrases as "combination" and "series of overt or criminal acts" xxx "in
furtherance of the scheme or conspiracy" is absolutely pointless and meaningless.

R.A. No. 7080 makes it possible for a person

conspiring with the accused in committing
one of the acts constituting the charge
of plunder to be convicted for the same crime.

Section 2 of R.A. No. 7080 states that "[a]ny person who participated with the said public officer in the
commission of an offense contributing to the crime of plunder shall likewise be punished for such offense. In
the imposition of penalties, the degree of participation and the attendance of mitigating and extenuating
circumstances, as provided by the Revised Penal Code, shall be considered by the court." Both parties share
the view that the law as it is worded makes it possible for a person who participates in the commission of only
one of the component crimes constituting plunder to be liable as co-conspirator for plunder, not merely the
component crime in which he participated.116 While petitioner concedes that it is easy to ascertain the penalty
for an accomplice or accessory under R.A. No. 7080, such is not the case with respect to a co-principal of the
accused.117 In other words, a person who conspires with the accused in the commission of only one of the
component crimes may be prosecuted as co-principal for the component crime, or as co-principal for the crime
of plunder, depending on the interpretation of the prosecutor. The unfettered discretion effectively bestowed
on law enforcers by the aforequoted clause in determining the liability of the participants in the commission of
one or more of the component crimes of a charge for plunder undeniably poses the danger of arbitrary
enforcement of the law.118

R.A. No. 7080 does not clearly state

the prescriptive period of the crime of plunder.

Section 6 of R.A. No. 7080 provides that the crime punishable under said Act shall prescribe in twenty (20)
years. Considering that the law was designed to cover a "combination or series of overt or criminal acts," or "a
pattern of overt or criminal acts," from what time shall the period of prescription be reckoned? From the first,
second, third or last act of the series or pattern? What shall be the time gap between two succeeding acts? If
the last act of a series or combination was committed twenty or more years after the next preceding one,
would not the crime have prescribed, thereby resulting in the total extinction of criminal liability under Article
89(b) of the Revised Penal Code? In antithesis, the RICO law affords more clarity and definiteness in describing
"pattern of racketeering activity" as "at least two acts of racketeering activity, one of which occurred within
ten years (excluding any period of imprisonment) after the commission of a prior act of racketeering
activity."119119 119 The U.S. state statutes similarly provide specific time frames within which racketeering acts
are committed.

The Solicitor General enjoins the Court to rectify the deficiencies in the law by judicial construction. However,
it certainly would not be feasible for the Court to interpret each and every ambiguous provision without falling
into the trap of judicial legislation. A statute should be construed to avoid constitutional question only when
an alternative interpretation is possible from its language.120 Borrowing from the opinion of the
court121 in Northwestern,122 the law "may be a poorly drafted statute; but rewriting it is a job for Congress, if it
so inclined, and not for this Court." But where the law as the one in question is void on its face for its patent
ambiguity in that it lacks comprehensible standards that men of common intelligence must necessarily guess
at its meaning and differ as to its application, the Court cannot breathe life to it through the guise of
construction.

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R.A. No. 7080 effectively eliminates mens rea
or criminal intent as an element of the crime of plunder.

Section 4 provides that for the purpose of establishing the crime of plunder, "it shall not be necessary to prove
each and every criminal act done by the accused in furtherance of the scheme or conspiracy to amass,
accumulate or acquire ill-gotten wealth, it being sufficient to establish beyond reasonable a pattern of overt or
criminal acts indicative of the overall unlawful scheme or conspiracy."

The majority would interpret this section to mean that the prosecution has the burden of "showing a
combination or series resulting in the crime of plunder." And, once the minimum requirements for a
combination or a series of acts are met, there is no necessity for the prosecution to prove each and every
other act done by the accused in furtherance of the scheme or conspiracy to amass, accumulate, or acquire ill-
gotten wealth.123

By its language, Section 4 eliminates proof of each and every component criminal act of plunder by the
accused and limits itself to establishing just the pattern of overt or criminal acts indicative of unlawful scheme
or conspiracy. The law, in effect, penalizes the accused on the basis of a proven scheme or conspiracy to
commit plunder without the necessity of establishing beyond reasonable doubt each and every criminal act
done by the accused in the crime of plunder. To quote Fr. Bernas again: "How can you have a ‘series’ of
criminal acts if the elements that are supposed to constitute the series are not proved to be criminal?" 124

Moreover, by doing away with proof beyond reasonable doubt of each and every criminal act done by the
accused in the furtherance of the scheme or conspiracy to acquire ill-gotten wealth, it being sufficient just to
prove a pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy, the Plunder
Law effectively eliminated the mens rea or criminal intent as an element of the crime. Because of this, it is
easier to convict for plunder and sentence the accused to death than to convict him for each of the component
crimes otherwise punishable under the Revised Penal Code and other laws which are bailable offenses. The
resultant absurdity strikes at the very heart if the constitutional guarantees of due process and equal
protection.

Plunder is a malum in se.

The acts enumerated in Section 1(d) are mostly defined and penalized by the Revised Penal Code, e.g.
malversation, estafa, bribery and other crimes committed by public officers. As such, they are by nature mala
in secrimes. Since intent is an essential element of these crimes, then, with more reason that criminal intent be
established in plunder which, under R.A. No. 7659, is one of the heinous crimes 125 as pronounced in one of its
whereas clauses.126

The fact that the acts enumerated in Section 1(d) of R.A. 7080 were made criminal by special law does not
necessarily make the same mala prohibita where criminal intent is not essential, although the term refers
generally to acts made criminal by special laws. For there is a marked difference between the two. According
to a well-known author on criminal law:

There is a distinction between crimes which are mala in se, or wrongful from their nature, such as theft, rape,
homicide, etc., and those that are mala prohibita, or wrong merely because prohibited by statute, such as
illegal possession of firearms.

Crimes mala in se are those so serious in their effects on society as to call for almost unanimous condemnation
of its members; while crimes mala prohibita are violations of mere rules of convenience designed to secure a
more orderly regulation of the affairs of society. (Bouvier’s Law Dictionary, Rawle’s 3rd Revision)

(1) In acts mala in se, the intent governs; but in those mala prohibit the only inquiry is, has the law been
violated? (People vs. Kibler, 106 N.Y., 321, cited in the case of U.S. vs. Go Chico, 14 Phil. 132)

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Criminal intent is not necessary where the acts are prohibited for reasons of public policy, as in illegal
possession of firearms. (People vs. Conosa, C.A., 45 O.G. 3953)

(2) The term mala in se refers generally to felonies defined and penalized by the Revised Penal Code. When
the acts are inherently immoral, they are mala in se, even if punished by special laws. On the other hand, there
are crimes in the Revised Penal Code which were originally defined and penalized by special laws. Among them
are possession and use of opium, malversation, brigandage, and libel.127

The component acts constituting plunder, a heinous crime, being inherently wrongful and immoral, are
patently mala in se, even if punished by a special law and accordingly, criminal intent must clearly be
established together with the other elements of the crime; otherwise, no crime is committed. By
eliminating mens rea, R.A. 7080 does not require the prosecution to prove beyond reasonable doubt the
component acts constituting plunder and imposes a lesser burden of proof on the prosecution, thus paving the
way for the imposition of the penalty of reclusion perpetua to death on the accused, in plain violation of the
due process and equal protection clauses of the Constitution. Evidently, the authority of the legislature to omit
the element of scienter in the proof of a crime refers to regulatory measures in the exercise of police power,
where the emphasis of the law is to secure a more orderly regulations of the offense of society, rather than
the punishment of the crimes. So that in mala prohibita prosecutions, the element of criminal intent is a
requirement for conviction and must be provided in the special law penalizing what are traditionally mala in
se crimes. As correctly pointed out by petitioner,128 citing U.S. Supreme Court decisions, the Smith Act was
ruled to require "intent" to advocate129 and held to require knowledge of illegal advocacy.130 And in another
case,131 and ordinance making illegal the possession of obscene books was declared unconstitutional for lack
of scienter requirement.

Mens rea is a substantive due process requirement under the Constitution, and this is a limitation on police
power. Additionally, lack of mens rea or a clarifying scienter requirement aggravates the vagueness of a
statute.

In Morisette v. U.S.132 the U.S. Supreme Court underscored the stultifying effect of eliminating mens rea, thus:

The Government asks us by a feat of construction radically to change the weights and balances in the scales of
justice. The purpose and obvious effect of doing away with the requirement of a guilty intent is to ease the
prosecution’s party to conviction, to strip the defendant of such benefit as he derived at common law from
innocence of evil purpose, and to circumscribe the freedom heretofore allowed juries. Such a manifest
impairment of the immunities of the individual should not be extended to common law crimes on judicial
initiative.

In the same breath, Justice Florenz Regalado expreses serious doubts as to the authority of the legislature to
complex mala in se crimes with mala prohibita, saying:

x x x although there has been a tendency to penalize crimes under special laws with penalties "borrowed"
from the Code, there is still the question of legislative authority to consolidate crimes punished under different
statutes. Worse, where one is punished under the Code and the other by the special law, both of these
contingencies had not been contemplated when the concept of a delito complejo was engrafted into the
Code.133

Petitioner is not estopped from questioning

the constitutionality of R.A. No. 7080.

The case at bar has been subject to controversy principally due to the personalities involved herein. The fact
that one of petitioner’s counsels134 was a co-sponsor of the Plunder Law135 and petitioner himself voted for its
passage when he was still a Senator would not in any put him in estoppel to question its constitutionality. The
rule on estoppel applies to questions of fact, not of law.136 Moreover, estoppel should be resorted to only as a
means of preventing injustice.137 To hold that petitioner is estopped from questioning the validity of R.A. No.
7080 because he had earlier voted for its passage would result in injustice not only to him, but to all others

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who may be held liable under this statute. In People vs. Vera,138 citing the U.S. case of Attorney General v.
Perkins, the Court held:

x x x The idea seems to be that the people are estopped from questioning the validity of a law enacted by their
representatives; that to an accusation by the people of Michigan of usurpation upon their government, a
statute enacted by the people of Michigan is an adequate statute relied on in justification is unconstitutional,
it is a statute only in form, and lacks the force of law, and is of no more saving effect to justify action under it it
had never been enacted. the constitution is the supreme law, and to its behests the courts, the legislature, and
the people must bow. x x x139

The Court should not sanction the use of an equitable remedy to defeat the ends of justice by permitting a
person to be deprived of his life and liberty under an invalid law.

Undoubtedly, the reason behind the enactment of R.A. 7080 is commendable. It was a response to the felt
need at the time that existing laws were inadequate to penalize the nature and magnitude of corruption that
characterized a "previous regime."140 However, where the law, such as R.A. 7080, is so indefinite that the line
between innocent and condemned conduct becomes a matter of guesswork, the indefiniteness runs afoul of
due process concepts which require that persons be given full notice of what to avoid, and that the discretion
of law enforcement officials, with the attendant dangers of arbitrary and discriminatory enforcement, be
limited by explicit legislative standards.141 It obfuscates the mind to ponder that such an ambiguous law as R.A.
No. 7080 would put on the balance the life and liberty of the accused against whom all the resources of the
State are arrayed. It could be used as a tool against political enemies and a weapon of hate and revenge by
whoever wields the levers of power.

I submit that the charge against petitioner in the Amended Information in Criminal Case No. 26558 does not
constitute "plunder" under R.A. No. 7080, as amended by R.A. No. 7659. If at all, the acts charged may
constitute offenses punishable under the Anti-Graft and Corrupt Practices Act (R.A. No. 3019) or the Revised
Penal Code. Hence, the information charging petitioner with plunder must be quashed. Such quashal,
however, should be without prejudice to the filing of new informations for acts under R.A. No. 3019, of the
Revised Penal Code and other laws. Double jeopardy would not bar the filing of the same because the
dismissal of the case is made with the express consent of the petitioner-accused.142

In view of the foregoing, I vote to GRANT the petition.

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G.R. No. L-42288 February 16, 1935

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
CORNELIO BAYONA, defendant-appellant.

Gervasio Diaz for appellant.

Office of the Solicitor-General Hilado for appellee.

VICKERS, J.:

This is an appeal from a decision of Judge Braulio Bejasa in the Court of First Instance of Capiz, finding the
defendant guilty of a violation of section 416 of the Election Law and sentencing him to suffer imprisonment
for thirty days and to pay a fine of P50, with subsidiary imprisonment in case of insolvency, and to pay the
costs.

The facts as found by the trial judge are as follows:

A eso de las once de la mañana del dia 5 de junio de 1934, mientras se celebrahan las elecciones
generales en el precinto electoral numero 4, situado en el Barrio de Aranguel del Municipio de Pilar,
Provincia de Capiz, el aqui acusado fue sorprendido por Jose E. Desiderio, que era entonces el
representante del Departamento del Interior para inspecionar las elecciones generales en la Provincia
de Capiz, y por el comandante de la Constabularia F.B. Agdamag que iba en aquella ocasion con el
citado Jose E. Desiderio, portando en su cinto el revolver Colt de calibre 32, No. 195382, Exhibit A,
dentro del cerco que rodeaba el edificio destinado para el citado colegio electoral numero 4 y a una
distancia de 22 metros del referido colegio electoral. Inmediatament Jose E. Desiderio se incauto del
revolver en cuestion.

La defensa, por medio del testimonio de Jose D. Benliro y de Dioscoro Buenvenida, trato de
establecer que el aqui acusado paro en la calle que daba frente al colegio electoral numero 4 a
invitacion de dicho Jose D. Benliro y con el objeto de suplicarle al mencionado acusado para llevar a
su casa a los electores del citado Jose D. Benliro que ya habian terminado de votar, y que cuando
llegaron Jose E. Desidierio y el comadante F.B. Agdamag, el aqui acusado estaba en la calle. Desde el
colegio electoral hasta el sitio en que, segun dichos testigos, estaba el acusado cuando se le quito el
revolver Exhibit a, hay una distancia de 27 metros.

Appellant's attorney makes the following assignments of error:

1. El Juzgado a quo erro al declarar que el apelante fue sorprendido con su revolver dentro del cerco
de la casa escuela del Barrio de Aranguel, Municipio de Pilar, que fue habilitado como colegio
electoral.

2. El Juzgado a quo erro al declarar al apelante culpable de la infraccion de la Ley Electoral querrellada
y, por consiguiente, al condenarle a prision y multa.

As to the question of fact raised by the first assignment of error, it is sufficient to say that the record shows
that both Jose E. Desiderio, a representative of the Department of the Interior, and Major Agdamag of the
Philippine Constabulary, who had been designated to supervise the elections in the Province of Capiz, testified
positively that the defendant was within the fence surrounding the polling place when Desiderio took
possession of the revolver the defendant was carrying. This also disposes of that part of the argument under
the second assignment of error based on the theory that the defendant was in a public road, where he had a
right to be, when he was arrested. The latter part of the argument under the second assignment of error is
that if it be conceded that the defendant went inside of the fence, he is nevertheless not guilty of a violation of
the Election Law, because he was called by a friend and merely approached him to find out what he wanted
and had no interest in the election; that there were many people in the public road in front of the polling

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place, and the defendant could not leave his revolver in his automobile, which he himself was driving, without
running the risk of losing it and thereby incurring in a violation of the law.

As to the contention that the defendant could not leave his revolver in his automobile without the risk of
losing it because he was alone, it is sufficient to say that under the circumstances it was not necessary for the
defendant to leave his automobile merely because somebody standing near the polling place had called him,
nor does the record show that it was necessary for the defendant to carry arms on that occasion.

The Solicitor-General argues that since the Government does not especially construct buildings for electoral
precincts but merely utilizes whatever building there may be available, and all election precincts are within
fifty meters from some road, a literal application of the law would be absurd, because members of the police
force or Constabulary in pursuit of a criminal would be included in that prohibition and could not use the road
in question if they were carrying firearms; that people living in the vicinity of electoral precincts would be
prohibited from cleaning or handling their firearms within their own residences on registration and election
days;

That the object of the Legislature was merely to prohibit the display of firearms with intention to influence in
any way the free and voluntary exercise of suffrage;

That if the real object of the Legislature was to insure the free exercise of suffrage, the prohibition in question
should only be applied when the facts reveal that the carrying of the firearms was intended for the purpose of
using them directly or indirectly to influence the free choice of the electors (citing the decision of this court in
the case of People vs. Urdeleon [G.R. No. 31536, promulgated November 20, 1929, not reported], where a
policeman, who had been sent to a polling place to preserve order on the request of the chairman of the board
of election inspectors, was acquitted); that in the case at bar there is no evidence that the defendant went to
the election precinct either to vote or to work for the candidacy of anyone, but on the other hand the evidence
shows that the defendant had no intention to go to the electoral precinct; that he was merely passing along
the road in front of the building where the election was being held when a friend of his called him; that while
in the strict, narrow interpretation of the law the defendant is guilty, it would be inhuman and unreasonable
to convict him.

We cannot accept the reasons advanced by the Solicitor-General for the acquittal of the defendant. The law
which the defendant violated is a statutory provision, and the intent with which he violated it is immaterial. It
may be conceded that the defendant did not intend to intimidate any elector or to violate the law in any other
way, but when he got out of his automobile and carried his revolver inside of the fence surrounding the polling
place, he committed the act complained of, and he committed it willfully. The act prohibited by the Election
Law was complete. The intention to intimidate the voters or to interfere otherwise with the election is not
made an essential element of the offense. Unless such an offender actually makes use of his revolver, it would
be extremely difficult, if not impossible, to prove that he intended to intimidate the voters.

The rule is that in acts mala in se there must be a criminal intent, but in those mala prohibita it is sufficient if
the prohibited act was intentionally done. "Care must be exercised in distinguishing the difference between
the intent to commit the crime and the intent to perpetrate the act. ..." (U.S. vs. Go Chico, 14 Phil., 128.)

While it is true that, as a rule and on principles of abstract justice, men are not and should not be held
criminally responsible for acts committed by them without guilty knowledge and criminal or at least
evil intent (Bishop's New Crim. Law, vol. I, sec. 286), the courts have always recognized the power of
the legislature, on grounds of public policy and compelled by necessity, "the great master of things",
to forbid in a limited class of cases the doing of certain acts, and to make their commission criminal
without regard to the intent of the doer. (U.S. vs. Go Chico, 14 Phil., 128; U.S. vs. Ah Chong, 15 Phil.,
488.) In such cases no judicial authority has the power to require, in the enforcement of the law, such
knowledge or motive to be shown. (U.S. vs. Siy Cong Bieng and Co Kong, 30 Phil., 577.)

The cases suggested by the Solicitor-General do not seem to us to present any difficulty in the enforcement of
the law. If a man with a revolver merely passes along a public road on election day, within fifty meters of a

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polling place, he does not violate the provision of law in question, because he had no intent to perpetrate the
act prohibited, and the same thing would be true of a peace officer in pursuing a criminal; nor would the
prohibition extend to persons living within fifty meters of a polling place, who merely clean or handle their
firearms within their own residences on election day, as they would not be carrying firearms within the
contemplation of the law; and as to the decision in the case of People vs. Urdeleon, supra, we have recently
held in the case of People vs. Ayre, and Degracia (p. 169, ante), that a policeman who goes to a polling place
on the request of the board of election inspectors for the purpose of maintaining order is authorized by law to
carry his arms.

If we were to adopt the specious reasoning that the appellant should be acquitted because it was not proved
that he tried to influence or intended to influence the mind of any voter, anybody could sell intoxicating liquor
or hold a cockfight or a horse race on election day with impunity.

As to the severity of the minimum penalty provided by law for a violation of the provision in question, that is a
matter for the Chief Executive or the Legislature.

For the foregoing reasons, the decision appealed from is affirmed, with the costs against the appellant.

Avanceña, C.J., Street, Abad Santos, and Hull, JJ., concur.

G.R. No. L-8646 March 31, 1915

THE UNITED STATES, plaintiff-appellee,

vs.
BENITO SIY CONG BIEN and CO KONG, defendants.
BENITO SIY CONG BIENG, appellant.

Tirso de Irureta Goyena for appellant.

Attorney-General Avanceña for appellee.

CARSON, J.:

Benito Siy Cong Bieng and Co Kong, the defendants in this action, were convicted in the court below of a
violation of section 7 of Act No. 1655 of the Philippine Commission, known as the Pure Food and Drugs Sct,
and each of them was sentenced to pay a fine of P10 and one-half of the costs of the proceedings. From this
judgment the defendant Benito Siy Cong Bieng alone appealed. The only error assigned by counsel for the
appellant in his brief on this appeal is as follows:

The court erred in holding that the accused Benito Siy Cong Bieng had violated the provision of Act
No. 1655 and was criminally responsible, in the same way as his agent Co Kong, notwithstanding the
fact that he had never had any knowledge of the acts performed by the latter, which are the subject
matter of the complaint, to wit, sale of adulterated coffee or of any kind of coffee.

The record discloses that Co Kong, while in charge of appellant's tienda (store) and acting as his agent and
employee, sold, in the ordinary course of business coffee which had been adulterated by the admixture of
peanuts and other extraneous substances. The circumstances under which the sale was made clearly appear
from the following statement of facts which was read into the record under an agreement signed by both
defendants and by all the attorneys in the case:

It is hereby stipulated and admitted by both parties that the defendant Benito Siy Cong Bieng is the
owner of tienda No. 326, Calle Santo Cristo, and that Co Kong is his agent duly installed thereon and
performing the services of his employment; that on July 2, 1912, the defendant Co Kong in the
ordinary course of the business sold a certain food product designated by the name of coffee; that
said coffee was adulterated and falsely branded, as alleged in the complaint; 'that the defendant
Benito Siy Con Bieng really had no knowledge that his agent Co Kong would sell said coffee or any

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 special brand of coffee, such as the aforesaid adulterated and falsely branded coffee, as is specified in
the complaint; it was not manufactured or put up by or with the knowledge of the defendant Benito
Siy Cong Bieng;' and the defendants Benito Siy Cong Bieng and Co Kong furthermore agree that this
stipulation shall have the effects of, and may be used by the prosecution as, an admission of the facts
herein established."

The only questions, therefore, which need be considered on this appeal are: first, whether a conviction under
the Pure Food and Drugs Act can be sustained where it appears that the sale of adulterated food products
charged in the information was made without guilty knowledge of the fact of adulteration, and without
conscious intent to violate the statute; and second, whether a principal can be convicted under the Act for a
sale of adulterated goods made by one of his agents or employees in the regular course of his employment,
but without knowledge on the part of the principal of the fact that the goods sold were adulterated.

While it is true that, as a rule and on principles of abstract justice, men are not and should not be held
criminally responsible for acts committed by them without guilty knowledge and criminal or at least evil intent
(Bishop's New Crim. Law, Vol. I, sec. 286), the courts have always recognized the power of the legislature, on
grounds of public policy and compelled by necessity, "the great master of things," to forbid in a limited class of
cases the doing of certain acts, and to make their commission criminal without regard to the intent of the
doer. (U. S. vs. Go Chico, 14 Phil. Rep., 128; U. S. vs. Ah Chong, 15 Phil. Rep., 488.) In such cases no judicial
authority has the power to require, in the enforcement of the law, such knowledge or motive to be shown. As
was said in the case of State vs. McBrayer (98 N. C., 619, 623):

It is a mistaken notion that positive, willful intent, as distinguished from a mere intent, to violate the
criminal law, is an essential ingredient in every criminal offense, and that where there is the absence
of such intent there is no offense; this is especially so as to statutory offenses. When the statute
plainly forbids an act to be done, and it is done by some person, the law implies conclusively the guilty
intent, although the offender was honestly mistaken as to the meaning of the law he violates. When
the language is plain and positive, and the offense is not made to depend upon the positive, will
intent and purpose, nothing is left to interpretation.

In the case of United States vs. Go Chico (14 Phil. Rep., 128, 138) it was said that: "Care must be exercised in
distinguishing the difference between the intent to commit the crime and the intent to perpetrate the act."

The intent to commit an act prohibited and penalized by statute must, of course, always appear before a
conviction upon a charge of the commission of a crime can be maintained. But whether or not the existence of
guilty knowledge and criminal or evil intent, that is to say, the conscious intent or will to violate the statute,
just also appear in order to sustain a judgment of conviction is a question which must be determined in each
case by reference to the language of the statute defining the offense.

The growing interest manifested during the past decade on the subject if pure food has been reflected in the
passage of the Federal Pure Food and Drugs Act of June 30, 1906, and in the passage of similar acts by a
number of the state legislatures. The Philippine Pure Food and Drugs Act (No. 1655) is, with some light
modifications, substantially identical with the Federal act. Its prohibitions of the sales of adulterated foodstuffs
and drugs are absolute and general. Indeed, they could hardly be expressed in terms more explicit and
comprehensive. The statutory definition of the offense embraces no word implying that the forbidden act shall
be done knowingly or willfully, and if it did, the design and purpose of the Act would in many instances be
thwarted and practically defeated. The intention of the Legislature is plain that persons engaged in the sale
drugs and food products cannot set up their ignorance of the nature and quality of the commodities sold by
them as a defense. We conclude therefore that under the Act proof of the facts of the sale of adulterated
drugs and food products as prohibited by the Act is sufficient to sustain a conviction, without proof of guilty
knowledge of the fact of adulteration, or criminal intent in the making of the sale other than that necessarily
implied by the statute in the doing of the prohibited act.

Counsel for appellant has cited a number of cases touching the various phases of the question now under
discussion, but it will be sufficient for our purposes to limit ourselves to some reference to the cases wherein
prosecutions have arisen upon charges of violations of pure food laws. In some of these statutes guilty

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knowledge and criminal intent is made essential to the commission of the offense prohibited, and of course
where such is the case guilty knowledge and criminal intent must appear before a conviction can be sustained.
But the overwhelming weight of authority construing statutes, generally known as pure food laws, is to the
effect that in the absence of language in the statute making guilty knowledge and criminal intent an essential
element of the acts prohibited thereunder, it is not necessary to charge or to prove that prohibited sales of
food products are made with guilty knowledge or criminal intent in order to sustain convictions under such
statutes.

Supported by numerous citations of authority, Thornton in his work on "Pure Food and Drugs," says with
reference to the Federal act of June 30, 1906: "The intent with which these several violations of the statute is
done is immaterial. There may be no intention to violate the statute, yet if the act produces the result
forbidden by the statute, an offense has been committed." (Sec. 119, p. 202.)

And again: "Repeated statements have been made in this work that an intent to violate the statute is not
necessary in order to incur the infliction of a penalty for the sale or keeping for sale [of] adulterated or impure
food or drugs. An act performed with no intent to violate a purefoods statute is just as much a crime under
this Federal Pure Food and Drug Act of June 30, 1906, as if a criminal design to violate it was intended and
entertained at the time of its performance. This rule extends to sales or other acts by servants." (Sec. 512, p.
613.)

And again, at section 559, the same author, citing numerous authorities, shows that in prosecutions for the
sale of adulterated milk it has been quite uniformly held that it is no defense that the accused had no
knowledge of the fact of alteration, and that it need not be alleged or proven that he had such knowledge, in
the absence of special words in the statute requiring the sale to be made with knowledge of the adulteration.

In the case of People vs. Kibler (106 N. Y., 321), the court said: "It is notorious that the adulteration of food
products has grown to proportions so enormous as to menace the health and safety of the people. Ingenuity
keeps pace with greed, and the careless and heedless consumers are exposed to increasing perils. The redress
such evils is a plain duty but a difficult task. Experience such taught the lesson that repressive measures which
depend for their efficiency upon proof of the dealer's knowledge and of his intent to deceive and defraud are
of title use and rarely accomplish their purpose. Such an emergency may justify legislation which throws upon
the seller the entire responsibility of the purity and soundness of what he sells and compels him to know and
to be certain."

Upon the question of the liability of the master for the violation of a pure food law by his clerk committed
without his knowledge or consent, the leading case would seem to be Groff vs. State (171 Ind., 547). In that
case the court said:

The distribution of impure or adulterated food for consumption is an act perilous to human life and
health; hence, a dangerous act, and cannot be made innocent and harmless by the want of
knowledge or the good faith of the seller.

Guilty intent is not an element in the crime . . . . hence, the rule that governs in that large class of
offenses, which rests upon criminal intent, has no application here. Cases like this are founded largely
upon the principle that he who voluntarily deals in perilous articles must be cautious how he deals.

The sale of oleomargarine in an adulterated form, or as a substitute for butter, is a crime against the
public health. Whoever, therefore, engages in its sale, or in the sale of any article interdicted by the
law, does so at his peril, and impliedly undertakes to conduct it with whatever degree of care is
necessary to secure compliance with the law. He may conduct the business himself, or by clerks or
agents but if he chooses the latter the duty is imposed upon him to see to it that those selected by
him to sell the article to the public obey the law in the matter of selling; otherwise, he, as the
principal and the responsible proprietor of the business, is liable for the penalty imposed by the
statute.

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See also the cases of State vs. Bockstruck (136 Mo., 335), and Commonwealth vs. Vieth (155 Mass., 442).

Labatt in his work on Master and Servant (vol. 7, sec. 2569) discusses the general rule as to liability of the
master for criminal conduct of his servant as follows: "Although the courts are in accord as to the master's
liability when he participates in the criminal conduct of his servant, there is a decided conflict of opinion as to
his responsibility when the act of the servant is without the master's knowledge or connivance and against his
express orders. These cases can be reconciled to some extent by the difference in the language employed in
the statutes to define the various offenses, and the policy of the statutes themselves. Wherever guilty intent is
an essential ingredient of the crime, it would be impossible to fix responsibility upon the master for his
servant's transgression of the law, if the master did not harbor such an intent. . . . In most instances where the
master is held to be responsible criminally for the wrongful conduct of his servant, it is on the theory that the
act complained of is positively forbidden, and therefore guilty intention is not essential to a conviction of the
offense."

And in section 2573, supported by numerous citations from cases dealing with infringement of liquor laws and
pure food laws, he say: "I f certain acts are positively forbidden by statute, and it is the policy of the law to
prohibit them, irrespective of what the motive or intent of the person violating statute may be, no principle of
justice is violated by holding the master responsible for the conduct of his servant on the same theory that he
is held responsible civilly."

Upon the reasoning and the authority of the cases there referred to, we are of opinion that even in the
absence of express provisions in the statute, the appellant in the case at bar was properly held criminally
responsible for the act of his agent in selling the adulterated coffee, and indeed it seems write clear that his
liability is expressly contemplated under the provision of section 12 of Act No. 1655 of the Philippine
Commission, which is as follows:

The word "person" as used in this Act shall be construed to import both the plural and the singular, as
the case demands, and shall include corporations, companies, societies, associations, and other
commercial or legal entities. When construing and enforcing the provisions of this Act, the act,
omission, or failure of any officer, agent, or other person acting for or employed by any corporation,
company society, association, or other commercial or legal entity, within the scope of his employment
or office, shall in every case be also deemed to be the act, omission, or failure of such corporation,
company, society, association, or other commercial or legal entity, as well as that of the person.

It is contended that the express provisions of this section, referring as they do to the liability of any
"corporation, society, association, or other commercial or legal entity," do not include cases of agency of a
private individual. We are of opinion, however, that the words "commercial or legal entity" as used in this
provision is sufficiently comprehensive to include a private individual engaged in business who makes use of
agent or agents, employee or employees, in the conduct of his business; and even if this position could be
successfully controverted we would still be of opinion that the provisions of this section clearly and definitely
indicate the policy of the statute to prohibit and penalize the acts forbidden thereunder, irrespective of what
the motive or intent of the person violating the statute may be, and to hold the master in all cases responsible
for the act, omission or failure of his servant, within the scope of his employment, whether he be a private
individual, a corporation, company, society, association, or other commercial or legal entity.

We conclude that the judgment of conviction entered in the court below should be affirmed, with the costs of
this instances against the appellant. So ordered.

Separate Opinions

MORELAND, J., dissenting:

I do not agree to a conviction under Act No. 1655, it not being applicable to the case.

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G.R. No. 117682 August 18, 1997

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
SILVINO SALARZA, JR., accused-appellant.

BELLOSILLO, J.:

DEATH, the punishment in extremis, was imposed on Silvino Salarza Jr. for rape. We now review his conviction.

Zareen Smith, British, was 30, single, a television and stage actress. Sometime in 1994 she came to the
Philippines and chose Boracay in Aklan and Port Barton in Palawan for her vacation retreats. In Port Barton she
met Enrico de Jesus, Filipino, 26, caretaker of Elsa's Place, a resort owned by his parents. Soon enough a
mutual attraction developed between them which ripened into an intense love affair that they would have sex
almost every night.

On 30 April 1994 Enrico brought Zareen to Mary's Cottage in Sitio Sabang, Bgy. Cabayugan, and introduced her
to his granduncle Rogelio Marañon and grandaunts Nenita Marañon and Maria Ausan who collectively owned
and managed the resort. Enrico and Zareen occupied Cottage No. 1. They spent the day at the beach where
they drank and swam. They were later joined in by Enrico's friend Silvino Salarza, Jr., a tourist guide, a press
relations officer and a fisherman.

In the evening Enrico and Zareen went to Sabang Centro together with Silvino, Julio Morales and a certain
Tonton to attend a dance. The dance however was canceled so they proceeded to Coco Grove Restaurant and
drank a bottle of rhum. Zareen did not drink as she preferred red wine which was not available. At eleven
o'clock the group returned to Mary's Cottage where Enrico awakened his grandaunt Nenita and ask her for
two (2) more bottles of rhum, after which, they went back to the beach and continued drinking. This time
Zareen opted for a bottle of beer. After a while Zareen said she felt tired and sleepy so she excused herself and
retired to the cottage. She was accompanied by Enrico who left her there to sleep. Back at the beach Enrico
asked his friends to go spearfishing. Although Silvino went with them he later returned to the beach because
he could not stand the cold and was feeling dizzy. From this point on the prosecution and the defense
presented varying versions.

According to the prosecution, at two o'clock in the morning of 1 May 1994 Zareen woke up when she felt
somebody take off her underwear. 1 The room was dark as the resort management switched off the lights at
ten o'clock. Zareen said she did not stop the man from removing her panties as she thought it was Enrico, her
boyfriend, and she was half-asleep. The man in turn removed his briefs and placed himself on top of her,
spread her legs, penetrated her and executed push-and-pull movements. Later, the man softly
whispered: "Zareen, it's not Ricky; it's Jun. I love you." According to Zareen, when she heard those words, she
pushed him aside. She cried and became hysterical. She went to the bathroom and washed herself, at the
same time telling Silvino, "Why? Why did you do that to me? You have ruined everything. You know that Ricky
and I are trying to have a baby of our own, what will happen now? I might get impregnated by what you did to
me." Silvino however assured her that pregnancy was out of the question as he did not ejaculate.

Maria Ausan heard Zareen cry so she awakened Nenita. Thinking that Enrico was forcing himself on Zareen,
Nenita went near Cottage No. 1 and pleaded, "Rico, please naman, kung ayaw huwag mong pilitin." But she
did not enter the cottage. At this moment she noticed a lighted petromax approaching. It was Enrico with Julio
and Tonton coming from the beach. Enrico hurriedly walked to the cottage. He saw Silvino coming out. At once
he assumed that Silvino must have molested Zareen. Upon nearing Silvino, Enrico punched him even before
Zareen could narrate what happened to her. Rogelio Marañon and Julio Morales then reported the incident at
the police station and Patrolmen Eleazar and Rodillo immediately responded.

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On the other hand, Silvino claims that it was Zareen who was flirting with him. His version is that while at Coco
Grove Restaurant, whenever Enrico was not looking, Zareen would whisper to him and place her arm on his
shoulder. She would talk to him about her stay in Boracay with her sister Lucila and the men she met there. In
turn, he spoke to her about his former girlfriends. When Enrico invited him to go spearfishing he went with the
group but after a while he returned to the beach saying he was feeling cold and dizzy having imbibed one too
many. He even stumbled and fell on the sand. As a result, he got sand all over his body so he proceeded to the
public restroom for a shower. On the way to get his t-shirt and cigarettes he saw Zareen lying on the
hammock. She asked him for a cigarette and insisted that he take his shower inside her cottage instead of the
public restroom which was about a hundred meters away. He hesitated for a while but finally acceded.

After emerging from his shower he was surprised to see Zareen on the bed. She pulled him towards her and
asked him to make love to her. She embraced him tightly and kissed him lustfully. He was surprised with the
turn of events and felt uncomfortable because of Enrico whom he did not wish to offend, much less betray, so
he pushed her away. In her exasperation she shouted, "Sh---t you, you are stupid!" Then she rushed to the
bathroom and washed herself.

He heard the voice of Nenita Marañon coming from outside Cottage No. 1 calling for Enrico and inquiring what
was happening, apparently thinking it was her grandnephew with Zareen having a lover's quarrel. So Silvino
answered, "This is not Ricky, Tiyay, this is me, Jun." He informed her that he had just taken his shower inside.
While Silvino and Nenita were talking, Zareen was simply keeping quiet. As he went out of the cottage he met
Enrico on the way. Nenita shouted, "Jun, Ricky is coming, you're dead!" True enough Enrico boxed Silvino.
Tonton and Julio ganged up on him, beat him, poured pepper on his body and pulled him towards the river.
Fearful that they would eventually kill him, Silvino crawled towards the coconut grove and upon reaching the
road leading to Sabang Centro he walked to the police station to lodge his complaint. On his way, he met
Policemen Eleazar and Rodillo. Rodillo brought him to the police station while Eleazar continued his way
towards Mary's Cottage to conduct an investigation.

But the trial court was not persuaded by Silvino's story. It pronounced him guilty of rape and imposed upon
him the supreme penalty of death. The court threw out his declaration that Zareen had been flirting with him
earlier and was the one who even proposed that they engage in sex that night. It found incredible that Zareen
would fall for Silvino and substitute him for Enrico, rationalizing that Zareen was 30 years old, Enrico 26, and
Silvino already 35, and that Enrico was 5'8" tall, handsome, with a well-shaped face and nose, while Silvino was
not generously endowed and standing only at 5'2". Besides, it argued that a woman would not charge a person
with the heinous crime of rape if it were not true, for she would not allow the examination of her private parts
and subject herself to a public trial which are both embarrassing if her accusation was merely fabricated. It
quoted People v. Selfaison,2 where it was held that it was difficult to believe that the complainants, who were
young and unmarried, would tell a story of defloration, allow the examination of their private parts and
thereafter permit themselves to be a subject of a public trial if they were not motivated by an honest desire to
have the culprits apprehended and punished. Obviously the court did not find it pertinent that Zareen was
already 30, a stage and television actress, by her admission had several boyfriends in the past with whom she
had sexual relations, and was possessed with a vigorous appetite for sex as she was indulging in intercourse
with Enrico almost every night without benefit of marriage.

Quite interestingly, the Information alleges that Silvino had carnal communication with Zareen while she was
asleep, with the use of force, against her will and without her consent.

We do not find the facts substantiating the Information. We must acquit.

Under Art. 335 of the Revised Penal Code, as amended by Sec. 11, RA 7659, rape is committed by having carnal
knowledge of a woman under any of the following circumstances: (a) by using force or intimidation; (b) when
the woman is deprived of reason or otherwise unconscious; and, (c) when the woman is under twelve (12)
years of age or is demented. The facts of this case do not by any means show the existence of any of these
circumstances; thus we cannot see how the trial court have convicted and, worse, sentenced the accused to
die.

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First, the complaining witness was not below twelve (12) years of age at the time of the alleged commission of
the offense. She was already thirty (30) years old. Neither was she demented.

Second, the Information avers use of force but the evidence negates any use of force, nay, not even
intimidation, in the commission of the offense charged. In fact, as discussed hereunder, the sexual advances of
the accused were done with the consent of the complaining witness although she claimed she thought that the
man who laid with her was her boyfriend Enrico. Here it may be argued that consent to the sexual act was
given by Zareen only because of her erroneous belief that the man on top of her was Enrico, thus implying that
had she known it was someone else she would have resisted.

The explanation is not persuasive. The evidence shows that this mistake was purely a subjective configuration
of Zareen's mind — an assumption entirely contrived by her. Our impression is that Silvino had nothing to do
with the formulation of this belief; he did nothing to mislead or deceive Zareen into thinking that he was
Enrico. In fact, Silvino precisely, and confidently, told her, "Zareen, it's not Ricky; it's Jun. I love you." It is thus
obvious that whatever mistake there was could only be attributable to Zareen — and her inexcusable
imprudence — and to nobody else. Clearly, the fault was hers. She had the opportunity to ascertain the
identity of the man but she preferred to remain passive and allow things to happen as they did. Silvino never
used force on her and was even most possibly encouraged by the fact that when he pulled down her
panties she never objected; when her legs were being parted she never objected; and, when he finally mounted
her she never objected. Where then was force?

Third, Zareen was not deprived of reason or otherwise unconscious when the accused had intercourse with
her. Her lame excuse was that she was half-asleep. However she admitted that in the early morning of 1 May
1994 she woke up to find someone removing her underwear. Thuswise it cannot be said that she was deprived
of reason or unconscious. She knew, hence was conscious, when her panties were being pulled down; she
knew, hence was conscious, when her legs were being parted to prepare for the sexual act; she knew, hence
was conscious, when the man was pulling down his briefs to prepare himself likewise for the copulation; she
knew, hence was conscious, when the man mounted her and lusted after her virtue. Her justification was that
she never objected to the sexual act from the start because she thought that the man was her boyfriend with
whom she was having sex almost every night for the past three (3) weeks as they were getting married and
wanted already to have a baby. In other words, her urge could not wait for the more appropriate time.

The prosecution would have the accused convicted of rape under its hypothesis that the complaining witness
was half-asleep, ergo unconscious, when the sexual assault took place. Obviously, it had in mind the doctrine
enunciated in 1929 in People v. Corcino,3 and later in 1935 in People v. Caballero.4 These cases however do not
apply because the offended parties there were unquestionably fast asleep — and not just half-asleep as in the
instant case — when the act was perpetrated. Consequently, there was no opportunity for them to either
object or give their consent as they were in deep slumber at the time of the coition. It was only some time
after they woke up that they realized that the men having sex with them were not their husbands they
thought them to be. In convicting the accused, this Court held, as the trial courts did, that the crime of rape
had already been consummated even before the offended parties woke up from their sleep. In Caballero it was
found that —

. . . when Consorcia, the offended party, awoke the appellant had already introduced his organ into
her genitals and in fact he was already having sexual intercourse with her. We mention this fact on
account of a certain doubt arising from the offended party's testimony during the direct examination
relative to this detail, but in the attempt of the attorney for the defense to clarify this point during his
cross-examination, the offended party categorically affirmed that she had been unaware when the
appellant introduced his organ into hers . . . . when the offended party awoke, the crime of rape
committed by the appellant was already consummated, having had carnal knowledge with the
offended party while she was unconscious for being asleep. The offended party's consent to the act
was subsequent thereto and it was given on the belief that the man lying with her was her own
husband. (emphasis supplied).5

The import of this pronouncement is that it was no longer relevant, much less significant, that after waking up
the offended party continued to have sex with the man she thought was her husband. Her "consent" to the act

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was subsequent to the rape, or after the crime was already committed; the fact that the consent — even if
only implied — was given on the belief that the man was her spouse, was inconsequential. In the case of
Zareen, her "consent" was given prior to the carnal act, i.e., the act was done because of her passivity, if not
consent.

The record abounds with indicia to discredit the theory of the prosecution that Zareen was dead drunk when
the alleged rape took placed. Having consumed only a small quantity of rhum during the day, according to her,
and a bottle of beer in the evening on a normal pace, she could not have been so drunk as to be deprived of
reason or otherwise rendered unconscious. When she returned to her cottage she immediately fell asleep as
she was tired and remained so for some time. When she was supposedly molested at around two-thirty the
following morning she must have already been, as we believe she was, in full possession of her mental and
physical faculties. Whatever intoxicating effect the rhum and beer might have had on her would have already
worn off.

Zareen herself claimed that she woke up when she felt someone removing her panties. This means she
was fully conscious when somebody approached her bed, removed her panties, spread her legs "although not
far apart but just enough to get her underwear off," and then proceeded to perform coital movements with
her. Her testimony that she knew that the "intruder" removed his own briefs; that his penis was already erect;
that no effort to foreplay was made before penetrating her in his first attempt; that the man did not kiss her
nor touch her breasts; that she did not even guide his penis into the trough of her ferminity; and, that he
"pushed-and-pulled" on top of her for approximately less than a minute, all validate our conviction that she
was fully conscious — not asleep nor even half-asleep — of what was being done to her from the beginning.
She was also aware that there was no light as the gas lamp inside the cottage was not lighted and the
electricity was already shut off.

Most significantly, Zareen was acutely aware of the manner by which Silvino identified himself — "Zareen, it's
not Ricky; it's Jun" — because she testified that " . . . it was not preceeded by a question. It was as if Jun
wanted to wake me up fully."6 To repeat, all these details vividly recalled and recounted by her ineluctably
indicate that she was awake all the time and capable of comprehending the nature of the sexual act and of
exercising her own free will as to yield to or resist a Lothario's libido.

Zareen had known Enrico for three (3) weeks and since then had been making love with him almost every
night. It strains credulity and understanding that she could have mistaken Silvino for Enrico. Their constant
lovemaking and togetherness would have already made her familiar with the physical attributes of Enrico and
accustomed to his fornicating peculiarities. Zareen even asserted that Enrico was not inclined to sexual
intercourse when drunk and would usually indulge in foreplay before actual copulation. These oddities are
cues which reasonably engender suspicion that the man she was having carnal communication with was not
her lover but someone else. She had the moral responsibility not only to herself but to society itself to
ascertain first the identity of her "ravisher" before yielding completely to him. It can hardly be said that she
was not imprudent, reckless and irresponsible in giving in to her own sexual impulses. Moreover, being almost
a stranger in the place, Zareen should have been leery of her surroundings especially at night. In this regard,
she should not have left her cottage door unlocked as much as she did leave pregnable and unshielded the
portals of her womanhood.

In People v. Bacalzo,7 the accused boxed his victim into unconsciousness. When the victim regained her
consciousness she felt the flaccid penis of her ravisher still inside her vagina and that thereafter he removed
his sexual organ. He then warned her not to divulge what had happened or else she and her family would be
killed. Force, which was used to knock the victim into unconsciousness, was employed before the act was done
to ensure its consummation. In People v. Corcino8 the complaining witness was totally asleep and when she
woke up the organ of the accused was already inside her genitalia. In People v. Caballero9 the victim was fully
asleep when the accused had carnal communication with her, such that when she woke up the crime of rape
was already consummated. The same was true in People v. Inot.10 In People v. Dayo,11 the rapist's organ was
already in the vagina of the offended party when she woke up, so she pushed him away and screamed. But the
accused pulled out his revolver and threatened to kill her if she made any further outcry. She fainted, and the
accused continued having sex with her. In fine, in all these cases raped was already consummated before the
offended parties could even exercise their volition to grant or deny access to erotic consortium.

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Under the circumstances we cannot help entertaining serious doubts on the culpability of the accused. Rape is
a charge easy to make, hard to prove and harder to defend by the party accused, though innocent. Experience
has shown that unfounded charges of rape have frequently been proferred by women actuated by some
sinister, ulterior or undisclosed motive. Convictions for such crime should not be sustained without clear and
convincing proof of guilt. On more than one occasion it has been pointed out that in crimes against chastity
the testimony of the injured woman should not be received with precipitate credulity. When the conviction
depends on any vital point upon her uncorroborated testimony, it should not be accepted unless her sincerity
and candor are free from suspicion. A little insight into human nature is of utmost value in judging matters of
this kind.12

But even from the narration of Zareen, the elements of the crime of rape are, regretfully, miserably wanting.
There was no force nor intimidation; Zareen was not deprived of reason nor otherwise unconscious; and, she
was not below twelve nor demented.

WHEREFORE, the decision appealed from is REVERSED and SET ASIDE and accused-appellant SILVINO SALARZA
JR. is ACQUITTED of the crime charged; consequently, he is ordered immediately RELEASED from confinement
unless held for some other lawful cause. Costs de oficio.

SO ORDERED.

Narvasa, C.J., Puno, Kapunan, Hermosisima, Jr., JJ., concur.

Vitug, J., I vote for acquittal not for anything attributable to complainant but simply because of a failure of
proof beyond reasonable doubt.

Torres, Jr., J., is on leave.

Separate Opinions

FRANCISCO, J., concurring:

By her own account, complainant was half-asleep when accused-appellant took off her underwear,
removed his briefs, placed himself on top of her, spread her legs, penetrated her and executed push
and pull movements. Thinking that it was her boyfriend, complainant did not do anything until
accused-appellant softly whispered to her "Zareen, it's not Ricky; it's Jun. I love you." Afterwhich, she
pushed him aside.

Complainant's tale of rape is unconvicing. It is quite puzzling that a supposed rapist, who having
accomplished with utmost ease his sinister intention to have carnal knowledge with an unsuspecting
victim, would all of a sudden unexplainably blow his cover by revealing his identity. Instinctively, the
attacker's natural reaction would be to shield himself from every possibility of being identified to
avoid prosecution.

Even more baffling is complainant's immediate reaction after the alleged rape. Instead of fleeing from
the clutches of her attacker, complainant proceeded to the bathroom and washed herself for fear of
being impregnated. At the same time, she even talked to her attacker and asked him why he did such
thing to her. Undoubtedly, her reaction was too casual for somebody who was supposed to have
undergone a harrowing experience of rape.

On this score, I find it hard to give credence to complainant's testimony bearing in mind that
"evidence, to be believed, 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." Complainant's testimony does not jibe with the normal reactions
commonly exhibited by persons placed under the same situation. Thus, her version is simply
incredible.

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 I therefore concur with the opinion of Justice Bellosillo and vote for the acquittal of herein accused-
appellant.

Mendoza, J., concurs.

REGALADO, J., dissenting:

I find the presentation and analysis by Mr. Justice Davide of the case for the People to be both
objective and sustained by the evidence, hence I adopt the position he has taken, with some
observations in amplification.

1. In the delictual setting of the rape case at bar, it is obvious that the ascertainment of the true
factual version on its commission must have primacy in the inquiry. Here, as is often the situation, we
have the word of complainant Zareen Smith that she was raped while half-asleep as against that of
appellant Salarza denying the charge. The peculiarity in the latter's negation is that, aside from
completely denying that he had ever sexually molested complainant, he adds that by her own
enticements it would have been a consensual affair had he done so.

We must perforce assay their contending accounts along the fundamental principle that the
prosecution must rely primarily on the strength of its evidence, but with the contrapuntal rule that
affirmative assertions have greater evidentiary weight than bare denials. Also, while jurisprudence
teaches that a rape charge is easy to make and hard to disprove, since generally only the complainant
and the accused can testify on what actually happened, yet it is both a commonsensical and doctrinal
rule that the weakness revealed by the false testimony of one strengthens pro tanto the credibility of
the declarations of the other.

I fully agree with the discussion of Mr. Justice Davide that considerations of law and logic sustain the
truth of the victim's assertions, with the accusing finger of prevarication pointing at appellant. Indeed,
one is hard put to rationalize why complainant should charge appellant with such a heinous crime
with its grave penalty apparently for no reason at all and without any perceivable motive for doing so.
Appellant's proffered explanation for such an inexplicable conduct which he imputes to her is as
bizarre as it is melodramatic.

In complainant's story, we have all the earmarks of truth consistent with the expectable reactions of a
woman whose virtue has been sullied against her will. As further imprints of her credibility, not all her
revelatory statements are self-laudatory nor tailored by exaggeration in order to subserve an
unworthy purpose. Appellant, on the other hand, weaves a tale of fancied events which would project
the sainted innocence he claims to have maintained against supposed erotic temptations.

Thus, for instance, complainant could very well have passed over in silence or explained away her
past sexual experiences abroad, or her relations with her local boyfriend, Enrico de Jesus, just to strike
a pitiable pose as a victim worthy of full sympathy. Instead of honestly admitting that she was half-
asleep and slightly aware when the pre-coital acts were done on her person, she could have so easily
dissembled without fear of contradiction that she was fast asleep and totally insensible to everything
until her discovery of what appellant was doing to her. Yet, she did not do so but, to her credit, she
candidly answered all question's fielded to her by the investigators and the court in the manner in
which they now appear of record, thereby even affording appellant the opportunity for a nitpicking
defense.

Appellant, as earlier stated, assumed a different stance by reciting that complainant first induced him
to go to her cottage; then after stripping to the nude, she first tried to manually stimulate him
sexually; then when he did not react, she wanted to perform fellatio on him; and when he refused,
she tried to have him engage in cunnilingus with her. All these sexual wiles and blandishments he
claims to have stolidly rejected, such that complainant angrily berated him for his stupidity.

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 That posture as a paragon of virtue which he affected was obviously to counter the prosecution's
theory that, taking advantage of complaint's somnolence or drowsiness, he easily obtained physical
access to and quickly commenced sexual congress with her but he was discovered as a lecherous
impostor and the victim cried out her anguish and emotional revulsion. This was, therefore, the
natural reaction of a woman who was wrongedby a sexual imposition against her will. This is in
contrast to appellant's pretense that she shouted at and cursed him for rebuffing her advances, which
would be the conduct of a woman scorned by his indifference.

A mere comparison of the respective narrations of the parties readily exposes which one is evidently
fabricated. Indulging appellant in his fabulous claim, one may then wonder why, with the cottage
door open and her boyfriend expected to return any time, complainant would seek to have both
normal and deviant sexual relations with appellant, despite the time that would be involved and
without any precautions against discovery. Worse, after being thus spurned in her alleged desires, she
is supposed to have scandalously shouted and cursed out her frustration for all to hear, instead of
keeping silent so that the shameful episode would not be known by others.

Providentially, however, a third person was awakened by the unrestrained wailing of complainant
over the outrage committed against her and what the former revealed in her testimony yields further
light on the truth of complainant's version. Nenita Marañon, caretaker of the cottage rented by
complainant and her boyfriend, confirmed inter alia that upon arrival at the cottage, she heard
complainant crying. In fact, thinking that she was being forced to have sex by her boyfriend against
her will, Marañon called out to him not to do so, only to realize shortly thereafter that it was
appellant instead who was there. Appellant admitted the truth of the caretaker's presence on that
occasion, as well as the accuracy of what she recounted to the court.

Taken in concert with the findings and conclusions in the opinion of Mr. Justice Davide, I venture to
state that only naivete or gullibility would grant any cachet to appellant's defensive charade. In fact,
my understanding is that even those sympathetic to his plea for acquittal concede that he did have
sexual intercourse with the victim, thereby upholding he version and giving the lie to that of
appellant. It is instransigently posited, however, that the blame for the assault against her chastity is
ascribable to complainant, and that brings this opinion to a discussion of that extraordinary thesis.

2. I need not devote much space to the proposition that it was complainant's negligence, in not
ascertaining the identity of the person who came in the dark to lie with her, which resulted in her
revishment. This would be equivalent to saying that the stealth of the rapist would be rewarded with
absolution upon proof of negligence on the part of the victim in meticulously ascertaining any
semblance of duplicity in the forbidding privacy of the bedroom. Complainant was expecting her
boyfriend's momentary return, then she fell asleep; she was slightly aroused by the preliminaries for
coitus which she and her boyfriend had been indulging in and, in the dark with nothing to warn her
otherwise, in her drowsy state of mind she submitted to the person she thought was her boyfriend.

She is now faulted for not exercising that degree of diligence necessary to detect any strategy of an
impostor, otherwise the latter shall be rewarded for his success. The responsibility for the sexual
assault is laid at the door of the victim for not detecting and preventing it from happening, and not
upon the felon who schemed and caused the event to happen. This appears to be the alarming import
of the arguments offered in defense of appellant on this score, a cogitation which regretfully I cannot
reconcile with any doctrinal rule I have learned in the law of crimes against chastity.

It is insisted, moreover, that the pertinent law contemplates the situation "(w)here the woman is
deprived of reason or otherwise unconscious,"1 and the cases so far decided in our jurisdiction
involved as victims women who were fully asleep at the time the rape may be legally deemed
consummated. Hence, the case at bar does not fall within the purview of such statutory and case law
since the victim was only half asleep and supposedly admitted to some degree of awareness when
her panties were being removed.

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 Mr. Justice Davide has cited authoritative discussions demonstrating, from both physiological and
neurological considerations, that a person who is half asleep and therefore in a stupor of drowsiness
or semiconsciousness, is not capable of giving full, informed, intelligent and voluntary consent. This
refutes and exposes the essence of appellant's evasive tactics, that is, since it is beyond cavil that he
did sexually penetrate her, the fallback alternative is to argue that it was with her consent even if she
was then half asleep.

This is a legal gambit, passing under the guise of novelty, but which has been analyzed and disposed
of long ago since it is a matter of common and ordinary human experience. A woman who is half
asleep being only half conscious, or in a state of drowsiness hence not fully conscious, is not capable
of completely giving that consent contemplated as valid in law which would bar a prosecution for
rape upon the defense of consensuality in the sexual act.

Thus, as pointed out by one of our early commentators on the Revised Penal Code, Judge Guillermo B.
Guevarra, "He who lies with a woman, while the latter is in a state of unconsciousness or drowsiness,
is guilty of rape."2 Drowsiness is defined as the state of being drowsy, that is, ready to fall asleep or
half asleep.3

This echoes the writings of a Spanish commentator on this mode of commission of rape as embodied
in the Spanish Penal Code of a vintage contemporary with ours, that is, El Codigo de 1932, which
provides that rape is committed "que este privada la mujer de razon o de sentido." He explains:

b) Que dentro de la frase privada de sentido cabe comprender también aquellas situaciones
en que puede encontrarse la mujer en las que, bien por accidentes exteriores, bien por
hallarse en un estado crepuscular, entienda que no debe resistir. Es el caso . . . de la
suplantación del marido (oscuridad, timbre de voz, semisueño, etcetera). La jurisprudencia
francesa siempre ha considerado estos casos como de violación. En nuestra patria el Tribunal
Supremo asi lo estimo en un caso en que la mujer se encontraba dormida (31 de enero de
1902). Entendemos debe apreciarse igual doctrina en las otras hipotesis.4 (Emphasis
supplied).

Parenthetically, the conjoined word "semisueño," which we shall meet again, is the legal term used by
Spanish commentator to denote a person who is half asleep, "semi" being the prefix meaning "half"
or "partly," and "sueño" being "sleep, sleeping, drowsiness."5

Of more familiarity and direct application to the present case is the work of Viada on the Spanish
Penal Code of 1870,6 the principal source of our Revised Penal Code, where he cites and discusses a
case almost on all fours with that before us, the only difference being that it was the husband there,
and the boyfriend here, who was supplanted by the rapist. Involved therein was Article 453 of said
Code which pertinently provided: "Se comete violacion yaciendo con la mujer en cualquiero de los
casos siguientes: . . . 2. Cuando la mujer se hallare privada de razon o de sentido por cualquiera
causa."

The illustration given therein, which is substantially identical with the situation in the case at bar, is as
follows:

CUESTION 6. El que aprovechandose de semisueño de una mujer, penetra en su

lechofraudulentamente, y yace con ella haciendola creer que es su marido, sera responsable
del delito de violacion? — El Tribunal Supremo de casacion frances ha resuelto la afirmativa:
"Considerando, dice, que el crimen de violacion consiste en el hecho de yacer con una mujer
contra su voluntad, ya provenga la falta de consentimiento de la violencia fisical o moral que
de se ejercicio sobre ella, ya del cualqueir otro medio que consista en cohibirla o
sorprenderla para conseguir, sin la voluntad de la victima, el objeto el autor del acto:
Considerando que de los hechos probados en esta causa resulta que valiendose Dubas de
engañosos artificios con objeto de hacerse pasar por Laurent, se ha introducido en el cuarto

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 y en el lecho de la mujer de este, y aprovechandose del semisueño en que se hallaba sumida,
ha logrado yacer con la expresada mujer, la que estaba tan distante de consentir el acto
ejeculado por Dubas, que al concebir sospechas de que no era realmente su marido la
persona con quien cohabitaba, lo rechazo al instante, dando voces de socórro, a las que
acudió el padre de la agraviada para auxiliarla contra el violador, que al ver descubierto el
fraude apeló precipitadamente a la fuga: Considerando que semejantes hechos contienen los
elementos constitutivos del crimen de violación, etc." (S. de 31 de diciembre de
1858, Bull. Crim., pag. 539) Creemos que nuestros Tribunales habrian de resolver el caso en
igual sentido, ya que comprendiendo el num. 2 del articulo, como caso de violacion, el de
yacer con una mujer cuando ésta se halla privada de razon o de sentido, por cualquiera
causa, habrian de estimar como causa de privación de sentido ese semisueno durante el cual
no funcionan sino incompletamente las facultadas del alma.7 (Emphases supplied.)

With the confluence of all the foregoing indicia and dicta on his guilt, it is pointless for appellant to
latch on to the ignis factuus of reasonable doubt for acquittal. For, as important as the rule that
innocence shall not suffer is the societal imperative that guilt shall not escape. The trial court, in my
view, acted correctly in pronouncing a verdict of guilty in light of the proven facts; unfortunately, it
imposed an erroneous penalty, in point of law.

Appellant has been sentenced to death, the court below invoking as its authority therefor the
provisions of Article 335 of the Revised Penal Code, as last amended by Republic Act No. 7659. Yet
nowhere in the records is there a showing that any of the circumstances which would warrant the
imposition of the capital punishment, as successively introduced by amendments to Article
335,8 obtain in this case. For that matter, the trial court does not specify either or even intimate what
circumstance it relies on for the death penalty. This is, therefore, a case of simple rape punishable
only by reclusion perpetua, yet the death penalty has been inexplicably imposed through a serious
judicial error for which the judge a quo should be made to account.

I, therefore, vote for the affirmance of the conviction of accused-appellant Silverio Salarza, Jr. for the
felony of simple rape, and that the lower penalty of reclusion perpetua be imposed on him.

Padilla, Romero, Melo and Panganiban, JJ., concur.

DAVIDE, JR., J., dissenting:

After reading the well-crafted ponencia of our colleague, Mr. Justice Bellosillo, the appealed decision
and the transcripts of the stenographic notes of the witnesses, I am more than convinced that
accused-appellant should not be allowed to go scot-free. He should be convicted of rape. I beg then
to dissent.

The core issues in this case are: (a) whether accused Silverio Salazar, Jr. had carnal knowledge of
complainant, Zareen Smith; and (b) whether he did so under circumstances which made him liable for
rape.

Zareen testified that accused had carnal knowledge of her while she was half-sleep and in the belief,
in all good faith, that it was her boyfriend Enrico de Jesus (Ricky) who penetrated her. When she
found out that it was the accused, she immediately pushed him aside and confronted the accused:
"Why? Why did you do it to me? You have ruined everything. You know that Ricky and I are trying to
have a baby of our own, what will happen now? I might get impregnated by what you did to me."
Then crying hysterically, she went to the bathroom to wash, with Nenita Marañon, caretakers of
Mary's Cottage, having heard her cries.

The trial court gave full faith to her story, holding:

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 The testimony of the complaining witness herein is very credible. It is natural, simple,
straightforward, convincing and consistent with human nature and the run of things in this
world. It has all the earmarks of truth and verity. (OR, 71).

Its summary of Zareen's testimony and explanation as to its credibility are as follows:

The alleged victim and the vital witness presented by the prosecution to prove the heinous
crime of Rape charged in this case, Miss Zareen Smith, who is a British stage and TV actress,
positively identified and pointed to the accused Silverio Salarza, Jr. alias Jun as the person
who "very quickly penetrated" her or had sexual intercourse with her without her consent
and against her will which happened at about 2:00 o'clock in the early morning of May 1,
1994 in Cottage no. 1, at Sabang, Cabayugan, Puerto Princesa City at the time she was half
asleep and/or half awoke as she was drank after taking liquor and tired and was merely
asleep for about two (2) hours earlier. Someone was removing her underwear and she was
half asleep and the room was dark, and so, she assumed he was her boyfriend, Ricky de
Jesus. Very quickly the accused Jun Salarza was on top of her and penetrated her or had
sexual intercourse with her which happened fast when she was still half asleep. The accused
made in-and-out movements on top of her after he entered his penis into her vagina and
then told her: "Zareen, it's not Ricky, it's Jun, I love you". These words were uttered by the
accused as if he wanted to wake her up. Upon hearing these words, the victim Zareen
pushed the accused off her immediately and ran to the bathroom a few meters away to
wash herself. While washing at the bathroom, she was screaming at the accused in a loud
voice, saying: "Why Jun did you do this to me, you ruined everything. You know Ricky and I
wanted to have a baby, why did you do this to me, why? why?" Then the accused Salarza
came to the door of the bathroom and tried to pacify her. He wanted her to be calm because
she was hysterical. The accused Jun Salarza then told her? "It's alright I did not finish". The
victim Zareen was crying as she was washing herself and she told him that her boyfriend
would kill her to which the accused answered that he knows.

The rape victim reported this incident to the policeman at the Police Sub-Station in Sabang,
Cabayugan and had herself medically examined by Dr. Jesselito De Lara at the Sabang
medical clinic with the help of Ricky de Jesus and his lola, Nenita Marañon. Then she
formalized a complaint against the accused (Exhibits "B", "B-1", "B-2" and "B-3") and
executed a sworn statement in support thereof (Exhibits "D", "D-1", and "D-3").

The alleged rape incident was duly reported to the nearest policemen and accordingly
entered in the blotter of the police sub-station of Sabang, Cabayugan, this City. The British
victim with the help of her friends in the locality, lost no time in taking appropriate action
against the accused after her womanhood and honor were violated and transgressed which
is but a natural reaction of any aggrieved party who has a legitimate gripe to address against
a felon.

It is notably significant that the complaining witness, Zareen Smith made loud cries, shouts
and screams immediately after the accused sexually abused her. She angrily rebuked and
scolded and sharply reprimandad the accused for his unwarranted act in entering his penis
into her private organ. These are proofs enough that show the disapproves, rejects,
disagrees, resents, abhors and did not like what the accused did to her. She looks decent
enough to be sexually assaulted. (id., 69-70)

On the other hand, the trial court found incredulous the defense of the accused that he had no carnal
knowledge of Zareen because, despite Zareen's flirtatious ways, he was not provoked; and despite her
vigorous efforts to excite his penis, it did not "harden;" hence, he was unable to insert his penis into
Zareen's private parts. For one, accused's own witness, PO2 Rosauro Rodillo, testified that accused
admitted having had sex with Zareen. On cross-examination Rodillo declared:

PROSECUTOR SENA:

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 Q Is it not a fact that when you confronted Jun Salarza that he had raped
the victim Zareen Smith he admitted he used Zareen Smith only he justified
it that Zareen Smith loves him also?

A Yes, Sir.

COURT:

Q What did the accused admit to you?

A That he had sex with Zareen Smith because Zareen Smith loves him, Your
Honor. (TSN, 8 June 1994, 22-23)

For another, and more specifically as to accused's claim that he was not sufficiently stimulated to
achieve an erection, the trial court, which had the singular advantage of observing accused's
deportment and manner of testifying and taking full use of all aids to arrive at a more accurate
assessment of his credibility, declared:

The version of the accused on this score is unnatural, abnormal and contrary to human
nature and experience. Only inanimate objects do not react. The accused looks normal and
not otherwise as a human person. The court saw and observed him to be so. With his young
age and status it is unlikely that his penis will not erect or harden if held and played by a
woman younger than him but single like him, especially a foreigners. (id. 71).

The trial court must have borne in mind the fact that on two previous occasions, accused had carnal
knowledge of two foreigners of the opposite sex at the same Mary's Cottage where Zareen claimed to
have been raped by accused. On questions by the trial court, accused volunteered the information
that he had sex with two foreigners, thus:

COURT:

xxx xxx xxx

Q As caretaker of the cottage, have you had even one sexual intercourse
with tourist, not necessarily Zareen Smith?

A I have, Your Honor.

Q How many foreigners?

A Two times, Your Honor.

Q Both foreigners?

A Yes, Sir.

Q White?

A Yes, Sir.

Q Americans?

A No, Sir.

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 Q What are they?

A They are from Netherlands, Your Honor. (TSN, 9 June 1994, 29-30).

Notably, accused likewise failed to convincingly refute the testimony of Enrico that at one time the
accused went inside a cottage where a female foreigner was sleeping; although no rape happened,
the latter cried and reported the incident to her sister. (TSN, 2 June 1994, 31-32).

The trial court correctly took note of these previous incidents, for under Section 34 of Rule 130 of the
Rules of Court, they can be received "to prove a specific intent, . . . plan . . . scheme, habit . . . and the
like." With those incidents as premises, relevant as they are in legal contemplation, the conclusion is
inevitable that the accused is a woman molester, with a lechery partial to Caucasians. His description
of himself then as a "fisherman and public relation officer and a tourist guide at the Mary's Cottage,"
(TSN, 9 June 1994, 3) was nothing but a camouflage to conceal a satyr on the prowl.

There is, as well, no doubt in my mind that accused intentionally proceeded to Mary's Cottage to
molest Zareen. If he merely wanted to go to the public restroom to wash off the sand on his body, he
could have done so without passing by Mary's Cottage, as the communal restroom. That was more
than one hundred meters away from Mary's Cottage. Moreover, it was not necessary for him to wash
off the sand at the public restroom, he could have simply returned to the sea nearby. He went to
Mary's Cottage because he knew Zareen was there, Ricky having gone back to the beach without her.

Zareen's unhesitating admission of nightly sex with her boyfriend Ricky and sexual congress with her
previous boyfriends should not have been taken against her, as the ponencia impliedly suggests; in
fact, they were even earmarks of her truthfulness. She could have easily hidden those facts, there
being no necessity for their revelation. It would then be irrelevant and thus impermissible to consider
Zareen's behaviour and conclude that she was sexually indiscriminate as the defense would make her
out to be. Clearly, a distinction may be drawn between one who is sexually active, but monogamous,
on one hand, and who engages in indiscriminate promiscuity, on the other. But even assuming
otherwise, it must not be forgotten that even prostitutes may be a victim of rape (People v. Rivera,
242 SCRA 26, 37 [1995]), and the victim's unchaste character is neither a defense nor a mitigating
circumstance in rape cases (RAMON C. AQUINO, The Revised Penal Code, vol. 3 [1988], 405-406).

With equal strength, it must not be overlooked that the character assassination employed by accused
against Zareen is simply contrived and an afterthought. The accused forgot that his main thesis was
that he was under the influence of liquor (Tanduay) or, as testified to by his witness PO2 Rodillo, the,
accused, was drunk, thus:

COURT:

Q When you met Jun Salarza on the beach, Jun Salarza went on his own
way and proceeded to Mary's Cottage?

A No, your Honor.

Q What happened?

A We detained him temporarily to rest and that because he was drunk,

Your Honor.

Q In your station?

A Yes, Your Honor.

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 Q So, because he was drunk you detained him not because of the reported
rape?

A For both reasons, Your Honor. (TSN, 8 June 1994, 21).

If indeed the accused was drunk, it would have been impossible for him to observed vividly, must less
accurately recall what transpired.

Finally, Zareen's conduct immediately after discovering that the man who penetrated her was not
Ricky, but the accused, further strengthened the credibility of her story that she was penetrated by
the accused. She shouted at and confronted the accused, ran to the bathroom to wash, cried and
became hysterical. Her cries were in fact heard by Nenita Marañon, caretaker of the Mary's Cottage,
although Nenita was staying at a place which 500 meters from Mary's Cottage (TSN, 1 June 1994, 8-9);
she reported the incident to the police authorities and submitted herself to an investigation. Then she
voluntarily submitted herself to a physical and medical examination by a physician who examined her
private parts. These speak eloquently of her sincerity in obtaining justice and seeking redress for a
wrong, and of the absence of any ulterior motive on her part.

Having thus shown that accused consummated his carnal knowledge of Zareen, the issue that remains
to be resolved is whether that act constituted rape under the second circumstance of Article 335 of
the Revised Penal Code. This Article pertinently provides 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 trial court held as it did because Zareen was half-asleep and believed in good faith that the
accused was her boyfriend Ricky. The trial court did not use the word unconscious, it only ruled that
she was "half-asleep or subconscious (sic)" in one instance (Decision, p. 17; OR, 68) or "half-asleep
and semi-conscious" in another instance (id., 21; id., 72).

When a woman is "deprived of reason" or is "unconscious," she is deemed to have "no will," as
distinguished from the first circumstance where force or intimidation is used, in which case her will "is
nullified or destroyed," or that it was committed against her will (AQUINO, op. cit., 393).

Deprivation of reason need not be complete, as mere mental abnormality or deficiency is enough.
(Id., 393-394) The crux of the matter then is the construction and interpretation of the word
"unconscious." I submit that since both "being deprived of reason" and "unconsciousness" are
founded on absence of will to give consent intelligently and freely, the term "unconsciousness," then,
should not be tested by a mere physical standard, i.e., whether one is awake or asleep, conscious or
alert. Rather, the inquiry should likewise determine whether the victim was fully informed of all
considerations so as to make a free and informed decision regarding the grant of consent. It is only
through this two-tiered test that a holistic appraisal of consent may be had.

In our jurisprudence, carnal knowledge of a sleeping woman is rape (People v. Dayo, 51 Phil. 102
[1927]; People v. Corcino, 53 Phil. 234 [1929]; People v. Caballero, 61 Phil. 900 [1935] and People
v. Conde, 322 Phil. 757 [1996]), because in that state the woman is completely unconscious, both
physically and mentally. Sleep, being the naturally or artificially induced state of suspension of
sensory and motor activity (People v. Conde, supra, at 767), obviously deprives a woman of the ability
to consent. However, to repeat, since it is "absence or lack of will" which is the primordial factor in

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 the second circumstance of rape, then I submit that to construe the term "unconsciousness"
exclusively in light of physical considerations would be unduly restrictive and fail to heed the
gravamen of the offense, i.e., lack of consent.

The ponencia makes much of Zareen's testimony that she was aware that someone pulled off her
underwear and spread her legs, then concludes that she must have been fully conscious and could not
have been mistaken as to her partner's identity. However, to take this at face value would not serve
the ends of justice. Plainly, despite Zareen's awareness of what was being done to her, the question
of who was doing it to her was a totally different matter. Her accession to the what was premised on
the belief, in good faith, that it was her boyfriend who lay with her in bed. Her failure to ascertain the
identity of her partner was a mistake in good faith for which she should not be faulted; neither should
it result in the acquittal of accused-appellant.

In Zareen's case, she was still "half-asleep" or drowsy when she was penetrated by the accused,
having been awakened when he removed her underwear and mounted her, which she acceded to
believing, in good faith, that it was her boyfriend Ricky, with whom she had nightly intercourse. When
this belief turned out to be erroneous when accused announced, in the midst of the act, that he was
not Ricky, but Jun (the accused), that was the only time that Zareen became fully aware of the totality
of circumstances — critically, that of her partner's identity — at which time she intelligently and freely
exercised her will by immediately and unequivocally rejecting the accused.

I submit that an inquiry into whether or not Zareen was half-asleep does not suffice as regards the
determination of an intelligent grant of consent; hence it may be said that in a sense, the grant of
consent was likewise not free. Clearly, it is only when a woman is fully informed that consent may be
intelligently given — which was absent in the instant case. Further, given that Zareen was newly
awakened and still drowsy; that it was 2:30 a.m.; that she was in her cottage; and that she had known
only Ricky for the last three weeks, it was then not unreasonable for her to presume that the man
who lay with her that night was no one else but Ricky.

However, should there by any further debate on the issue of Zareen's physical condition and
consequences thereof, i.e., she was "awake" thus fully conscious, I assert that Zareen's failure to
detect that it was not Ricky who lay with her that night, was not only not unreasonable, but perfectly
understandable, in light of human nature and as recognized by the medical profession.
"Consciousness" has been described by medical practitioners as denoting a state of awareness of
one's self and one's environment;1 conversely, whether a person is disoriented is measured by one's
degree of alertness and awareness of the environment, considering the circumstances of time, place
and person.2

What matters for purposes of this opinion is that the medical profession recognizes a spectrum of
impaired or depressed consciousness and orientation in persons who are nevertheless deemed
"awake." The terms used in this regard are obtundity, somnolence and stupor.3 While we wish not to
dabble in areas where we admittedly do not possess the requisite expertise, at bottom, given the
circumstances of time and place, Zareen was clearly, in layman's language: disoriented, drowsy or
confused,4 thus cannot be held culpable for her failure to immediately recognize that it was not Ricky,
nor her failure to ascertain Jun's identity, not even her assumption that it was Ricky who lay with her:

This orientation as to person, place, and time depends on the ongoing sensory
impression. Have you ever awakened from a deep sleep to find that momentarily you did not
know the day, the hour, or even where you were? Weren't your mental functions impaired
until you became oriented, until all the pieces of the puzzle suddenly fell into place? . .
.5 (emphasis supplied)

Returning to the legal front, what is material here is that any semblance of consent given was clearly
and painfully a mistake in good faith, as Zareen was not fully aware of the totality of the
circumstances, thus rendering her, for all legal intents and purposes, unconscious and unable to give
consent freely and intelligently. All told, this instance of reverse error in personae, clearly a material

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 factor in the grant of consent by the victim, resulted in total absence of consent which accused-
appellant should be held criminally liable for as charged.

On a final note, however, the penalty therefor should not be death, as erroneously ruled by the trial
court. Under Article 335 of the Revised Penal Code, as amended by R.A. No. 7659, death is imposable
only under any of the following circumstances, none of which obtain here:

When 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 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 old 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 or consanguinity.

4. When the victim is a religious or a child below seven (7) years old.

5. When the offender knows that he is afflicted with Acquired Immune

Deficiency Syndrome (AIDS) disease.

6. When committed by any member of the Armed Forces of the Philippines

or the Philippine National Police or any law enforcement agency.

7. When by reason or on the occasion of the rape, the victim has suffered
permanent physical mutilation. (As amended by Sec. 11, RA 7659.)

WHEREFORE, I vote to affirm the decision, subject to the modification of the penalty which should be
reduced from death to reclusion perpetua.

Padilla, Romero, Melo and Panganiban, JJ., concur.

Separate Opinions

FRANCISCO, J., concurring:

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 By her own account, complainant was half-asleep when accused-appellant took off her underwear,
removed his briefs, placed himself on top of her, spread her legs, penetrated her and executed push
and pull movements. Thinking that it was her boyfriend, complainant did not do anything until
accused-appellant softly whispered to her "Zareen, it's not Ricky; it's Jun. I love you." Afterwhich, she
pushed him aside.

Complainant's tale of rape is unconvicing. It is quite puzzling that a supposed rapist, who having
accomplished with utmost ease his sinister intention to have carnal knowledge with an unsuspecting
victim, would all of a sudden unexplainably blow his cover by revealing his identity. Instinctively, the
attacker's natural reaction would be to shield himself from every possibility of being identified to
avoid prosecution.

Even more baffling is complainant's immediate reaction after the alleged rape. Instead of fleeing from
the clutches of her attacker, complainant proceeded to the bathroom and washed herself for fear of
being impregnated. At the same time, she even talked to her attacker and asked him why he did such
thing to her. Undoubtedly, her reaction was too casual for somebody who was supposed to have
undergone a harrowing experience of rape.

On this score, I find it hard to give credence to complainant's testimony bearing in mind that
"evidence, to be believed, 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." Complainant's testimony does not jibe with the normal reactions
commonly exhibited by persons placed under the same situation. Thus, her version is simply
incredible.

I therefore concur with the opinion of Justice Bellosillo and vote for the acquittal of herein accused-
appellant.

Mendoza, J., concurs.

REGALADO, J., dissenting:

I find the presentation and analysis by Mr. Justice Davide of the case for the People to be both
objective and sustained by the evidence, hence I adopt the position he has taken, with some
observations in amplification.

1. In the delictual setting of the rape case at bar, it is obvious that the ascertainment of the true
factual version on its commission must have primacy in the inquiry. Here, as is often the situation, we
have the word of complainant Zareen Smith that she was raped while half-asleep as against that of
appellant Salarza denying the charge. The peculiarity in the latter's negation is that, aside from
completely denying that he had ever sexually molested complainant, he adds that by her own
enticements it would have been a consensual affair had he done so.

We must perforce assay their contending accounts along the fundamental principle that the
prosecution must rely primarily on the strength of its evidence, but with the contrapuntal rule that
affirmative assertions have greater evidentiary weight than bare denials. Also, while jurisprudence
teaches that a rape charge is easy to make and hard to disprove, since generally only the complainant
and the accused can testify on what actually happened, yet it is both a commonsensical and doctrinal
rule that the weakness revealed by the false testimony of one strengthens pro tanto the credibility of
the declarations of the other.

I fully agree with the discussion of Mr. Justice Davide that considerations of law and logic sustain the
truth of the victim's assertions, with the accusing finger of prevarication pointing at appellant. Indeed,
one is hard put to rationalize why complainant should charge appellant with such a heinous crime
with its grave penalty apparently for no reason at all and without any perceivable motive for doing so.

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 Appellant's proffered explanation for such an inexplicable conduct which he imputes to her is as
bizarre as it is melodramatic.

In complainant's story, we have all the earmarks of truth consistent with the expectable reactions of a
woman whose virtue has been sullied against her will. As further imprints of her credibility, not all her
revelatory statements are self-laudatory nor tailored by exaggeration in order to subserve an
unworthy purpose. Appellant, on the other hand, weaves a tale of fancied events which would project
the sainted innocence he claims to have maintained against supposed erotic temptations.

Thus, for instance, complainant could very well have passed over in silence or explained away her
past sexual experiences abroad, or her relations with her local boyfriend, Enrico de Jesus, just to strike
a pitiable pose as a victim worthy of full sympathy. Instead of honestly admitting that she was half-
asleep and slightly aware when the pre-coital acts were done on her person, she could have so easily
dissembled without fear of contradiction that she was fast asleep and totally insensible to everything
until her discovery of what appellant was doing to her. Yet, she did not do so but, to her credit, she
candidly answered all question's fielded to her by the investigators and the court in the manner in
which they now appear of record, thereby even affording appellant the opportunity for a nitpicking
defense.

Appellant, as earlier stated, assumed a different stance by reciting that complainant first induced him
to go to her cottage; then after stripping to the nude, she first tried to manually stimulate him
sexually; then when he did not react, she wanted to perform fellatio on him; and when he refused,
she tried to have him engage in cunnilingus with her. All these sexual wiles and blandishments he
claims to have stolidly rejected, such that complainant angrily berated him for his stupidity.

That posture as a paragon of virtue which he affected was obviously to counter the prosecution's
theory that, taking advantage of complaint's somnolence or drowsiness, he easily obtained physical
access to and quickly commenced sexual congress with her but he was discovered as a lecherous
impostor and the victim cried out her anguish and emotional revulsion. This was, therefore, the
natural reaction of a woman who was wrongedby a sexual imposition against her will. This is in
contrast to appellant's pretense that she shouted at and cursed him for rebuffing her advances, which
would be the conduct of a woman scorned by his indifference.

A mere comparison of the respective narrations of the parties readily exposes which one is evidently
fabricated. Indulging appellant in his fabulous claim, one may then wonder why, with the cottage
door open and her boyfriend expected to return any time, complainant would seek to have both
normal and deviant sexual relations with appellant, despite the time that would be involved and
without any precautions against discovery. Worse, after being thus spurned in her alleged desires, she
is supposed to have scandalously shouted and cursed out her frustration for all to hear, instead of
keeping silent so that the shameful episode would not be known by others.

Providentially, however, a third person was awakened by the unrestrained wailing of complainant
over the outrage committed against her and what the former revealed in her testimony yields further
light on the truth of complainant's version. Nenita Marañon, caretaker of the cottage rented by
complainant and her boyfriend, confirmed inter alia that upon arrival at the cottage, she heard
complainant crying. In fact, thinking that she was being forced to have sex by her boyfriend against
her will, Marañon called out to him not to do so, only to realize shortly thereafter that it was
appellant instead who was there. Appellant admitted the truth of the caretaker's presence on that
occasion, as well as the accuracy of what she recounted to the court.

Taken in concert with the findings and conclusions in the opinion of Mr. Justice Davide, I venture to
state that only naivete or gullibility would grant any cachet to appellant's defensive charade. In fact,
my understanding is that even those sympathetic to his plea for acquittal concede that he did have
sexual intercourse with the victim, thereby upholding he version and giving the lie to that of
appellant. It is instransigently posited, however, that the blame for the assault against her chastity is
ascribable to complainant, and that brings this opinion to a discussion of that extraordinary thesis.

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 2. I need not devote much space to the proposition that it was complainant's negligence, in not
ascertaining the identity of the person who came in the dark to lie with her, which resulted in her
revishment. This would be equivalent to saying that the stealth of the rapist would be rewarded with
absolution upon proof of negligence on the part of the victim in meticulously ascertaining any
semblance of duplicity in the forbidding privacy of the bedroom. Complainant was expecting her
boyfriend's momentary return, then she fell asleep; she was slightly aroused by the preliminaries for
coitus which she and her boyfriend had been indulging in and, in the dark with nothing to warn her
otherwise, in her drowsy state of mind she submitted to the person she thought was her boyfriend.

She is now faulted for not exercising that degree of diligence necessary to detect any strategy of an
impostor, otherwise the latter shall be rewarded for his success. The responsibility for the sexual
assault is laid at the door of the victim for not detecting and preventing it from happening, and not
upon the felon who schemed and caused the event to happen. This appears to be the alarming import
of the arguments offered in defense of appellant on this score, a cogitation which regretfully I cannot
reconcile with any doctrinal rule I have learned in the law of crimes against chastity.

It is insisted, moreover, that the pertinent law contemplates the situation "(w)here the woman is
deprived of reason or otherwise unconscious,"1 and the cases so far decided in our jurisdiction
involved as victims women who were fully asleep at the time the rape may be legally deemed
consummated. Hence, the case at bar does not fall within the purview of such statutory and case law
since the victim was only half asleep and supposedly admitted to some degree of awareness when
her panties were being removed.

Mr. Justice Davide has cited authoritative discussions demonstrating, from both physiological and
neurological considerations, that a person who is half asleep and therefore in a stupor of drowsiness
or semiconsciousness, is not capable of giving full, informed, intelligent and voluntary consent. This
refutes and exposes the essence of appellant's evasive tactics, that is, since it is beyond cavil that he
did sexually penetrate her, the fallback alternative is to argue that it was with her consent even if she
was then half asleep.

This is a legal gambit, passing under the guise of novelty, but which has been analyzed and disposed
of long ago since it is a matter of common and ordinary human experience. A woman who is half
asleep being only half conscious, or in a state of drowsiness hence not fully conscious, is not capable
of completely giving that consent contemplated as valid in law which would bar a prosecution for
rape upon the defense of consensuality in the sexual act.

Thus, as pointed out by one of our early commentators on the Revised Penal Code, Judge Guillermo B.
Guevarra, "He who lies with a woman, while the latter is in a state of unconsciousness or drowsiness,
is guilty of rape."2 Drowsiness is defined as the state of being drowsy, that is, ready to fall asleep or
half asleep.3

This echoes the writings of a Spanish commentator on this mode of commission of rape as embodied
in the Spanish Penal Code of a vintage contemporary with ours, that is, El Codigo de 1932, which
provides that rape is committed "que este privada la mujer de razon o de sentido." He explains:

b) Que dentro de la frase privada de sentido cabe comprender también aquellas situaciones
en que puede encontrarse la mujer en las que, bien por accidentes exteriores, bien por
hallarse en un estado crepuscular, entienda que no debe resistir. Es el caso . . . de la
suplantación del marido (oscuridad, timbre de voz, semisueño, etcetera). La jurisprudencia
francesa siempre ha considerado estos casos como de violación. En nuestra patria el Tribunal
Supremo asi lo estimo en un caso en que la mujer se encontraba dormida (31 de enero de
1902). Entendemos debe apreciarse igual doctrina en las otras hipotesis.4 (Emphasis
supplied).

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 Parenthetically, the conjoined word "semisueño," which we shall meet again, is the legal term used by
Spanish commentator to denote a person who is half asleep, "semi" being the prefix meaning "half"
or "partly," and "sueño" being "sleep, sleeping, drowsiness."5

Of more familiarity and direct application to the present case is the work of Viada on the Spanish
Penal Code of 1870,6 the principal source of our Revised Penal Code, where he cites and discusses a
case almost on all fours with that before us, the only difference being that it was the husband there,
and the boyfriend here, who was supplanted by the rapist. Involved therein was Article 453 of said
Code which pertinently provided: "Se comete violacion yaciendo con la mujer en cualquiero de los
casos siguientes: . . . 2. Cuando la mujer se hallare privada de razon o de sentido por cualquiera
causa."

The illustration given therein, which is substantially identical with the situation in the case at bar, is as
follows:

CUESTION 6. El que aprovechandose de semisueño de una mujer, penetra en su

lechofraudulentamente, y yace con ella haciendola creer que es su marido, sera responsable
del delito de violacion? — El Tribunal Supremo de casacion frances ha resuelto la afirmativa:
"Considerando, dice, que el crimen de violacion consiste en el hecho de yacer con una mujer
contra su voluntad, ya provenga la falta de consentimiento de la violencia fisical o moral que
de se ejercicio sobre ella, ya del cualqueir otro medio que consista en cohibirla o
sorprenderla para conseguir, sin la voluntad de la victima, el objeto el autor del acto:
Considerando que de los hechos probados en esta causa resulta que valiendose Dubas de
engañosos artificios con objeto de hacerse pasar por Laurent, se ha introducido en el cuarto
y en el lecho de la mujer de este, y aprovechandose del semisueño en que se hallaba sumida,
ha logrado yacer con la expresada mujer, la que estaba tan distante de consentir el acto
ejeculado por Dubas, que al concebir sospechas de que no era realmente su marido la
persona con quien cohabitaba, lo rechazo al instante, dando voces de socórro, a las que
acudió el padre de la agraviada para auxiliarla contra el violador, que al ver descubierto el
fraude apeló precipitadamente a la fuga: Considerando que semejantes hechos contienen los
elementos constitutivos del crimen de violación, etc." (S. de 31 de diciembre de
1858, Bull. Crim., pag. 539) Creemos que nuestros Tribunales habrian de resolver el caso en
igual sentido, ya que comprendiendo el num. 2 del articulo, como caso de violacion, el de
yacer con una mujer cuando ésta se halla privada de razon o de sentido, por cualquiera
causa, habrian de estimar como causa de privación de sentido ese semisueno durante el cual
no funcionan sino incompletamente las facultadas del alma.7 (Emphases supplied.)

With the confluence of all the foregoing indicia and dicta on his guilt, it is pointless for appellant to
latch on to the ignis factuus of reasonable doubt for acquittal. For, as important as the rule that
innocence shall not suffer is the societal imperative that guilt shall not escape. The trial court, in my
view, acted correctly in pronouncing a verdict of guilty in light of the proven facts; unfortunately, it
imposed an erroneous penalty, in point of law.

Appellant has been sentenced to death, the court below invoking as its authority therefor the
provisions of Article 335 of the Revised Penal Code, as last amended by Republic Act No. 7659. Yet
nowhere in the records is there a showing that any of the circumstances which would warrant the
imposition of the capital punishment, as successively introduced by amendments to Article
335,8 obtain in this case. For that matter, the trial court does not specify either or even intimate what
circumstance it relies on for the death penalty. This is, therefore, a case of simple rape punishable
only by reclusion perpetua, yet the death penalty has been inexplicably imposed through a serious
judicial error for which the judge a quo should be made to account.

I, therefore, vote for the affirmance of the conviction of accused-appellant Silverio Salarza, Jr. for the
felony of simple rape, and that the lower penalty of reclusion perpetua be imposed on him.

Padilla, Romero, Melo and Panganiban, JJ., concur.

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DAVIDE, JR., J., dissenting:

After reading the well-crafted ponencia of our colleague, Mr. Justice Bellosillo, the appealed decision
and the transcripts of the stenographic notes of the witnesses, I am more than convinced that
accused-appellant should not be allowed to go scot-free. He should be convicted of rape. I beg then
to dissent.

The core issues in this case are: (a) whether accused Silverio Salazar, Jr. had carnal knowledge of
complainant, Zareen Smith; and (b) whether he did so under circumstances which made him liable for
rape.

Zareen testified that accused had carnal knowledge of her while she was half-sleep and in the belief,
in all good faith, that it was her boyfriend Enrico de Jesus (Ricky) who penetrated her. When she
found out that it was the accused, she immediately pushed him aside and confronted the accused:
"Why? Why did you do it to me? You have ruined everything. You know that Ricky and I are trying to
have a baby of our own, what will happen now? I might get impregnated by what you did to me."
Then crying hysterically, she went to the bathroom to wash, with Nenita Marañon, caretakers of
Mary's Cottage, having heard her cries.

The trial court gave full faith to her story, holding:

The testimony of the complaining witness herein is very credible. It is natural, simple,
straightforward, convincing and consistent with human nature and the run of things in this
world. It has all the earmarks of truth and verity. (OR, 71).

Its summary of Zareen's testimony and explanation as to its credibility are as follows:

The alleged victim and the vital witness presented by the prosecution to prove the heinous
crime of Rape charged in this case, Miss Zareen Smith, who is a British stage and TV actress,
positively identified and pointed to the accused Silverio Salarza, Jr. alias Jun as the person
who "very quickly penetrated" her or had sexual intercourse with her without her consent
and against her will which happened at about 2:00 o'clock in the early morning of May 1,
1994 in Cottage no. 1, at Sabang, Cabayugan, Puerto Princesa City at the time she was half
asleep and/or half awoke as she was drank after taking liquor and tired and was merely
asleep for about two (2) hours earlier. Someone was removing her underwear and she was
half asleep and the room was dark, and so, she assumed he was her boyfriend, Ricky de
Jesus. Very quickly the accused Jun Salarza was on top of her and penetrated her or had
sexual intercourse with her which happened fast when she was still half asleep. The accused
made in-and-out movements on top of her after he entered his penis into her vagina and
then told her: "Zareen, it's not Ricky, it's Jun, I love you". These words were uttered by the
accused as if he wanted to wake her up. Upon hearing these words, the victim Zareen
pushed the accused off her immediately and ran to the bathroom a few meters away to
wash herself. While washing at the bathroom, she was screaming at the accused in a loud
voice, saying: "Why Jun did you do this to me, you ruined everything. You know Ricky and I
wanted to have a baby, why did you do this to me, why? why?" Then the accused Salarza
came to the door of the bathroom and tried to pacify her. He wanted her to be calm because
she was hysterical. The accused Jun Salarza then told her? "It's alright I did not finish". The
victim Zareen was crying as she was washing herself and she told him that her boyfriend
would kill her to which the accused answered that he knows.

The rape victim reported this incident to the policeman at the Police Sub-Station in Sabang,
Cabayugan and had herself medically examined by Dr. Jesselito De Lara at the Sabang
medical clinic with the help of Ricky de Jesus and his lola, Nenita Marañon. Then she
formalized a complaint against the accused (Exhibits "B", "B-1", "B-2" and "B-3") and
executed a sworn statement in support thereof (Exhibits "D", "D-1", and "D-3").

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 The alleged rape incident was duly reported to the nearest policemen and accordingly
entered in the blotter of the police sub-station of Sabang, Cabayugan, this City. The British
victim with the help of her friends in the locality, lost no time in taking appropriate action
against the accused after her womanhood and honor were violated and transgressed which
is but a natural reaction of any aggrieved party who has a legitimate gripe to address against
a felon.

It is notably significant that the complaining witness, Zareen Smith made loud cries, shouts
and screams immediately after the accused sexually abused her. She angrily rebuked and
scolded and sharply reprimandad the accused for his unwarranted act in entering his penis
into her private organ. These are proofs enough that show the disapproves, rejects,
disagrees, resents, abhors and did not like what the accused did to her. She looks decent
enough to be sexually assaulted. (id., 69-70)

On the other hand, the trial court found incredulous the defense of the accused that he had no carnal
knowledge of Zareen because, despite Zareen's flirtatious ways, he was not provoked; and despite her
vigorous efforts to excite his penis, it did not "harden;" hence, he was unable to insert his penis into
Zareen's private parts. For one, accused's own witness, PO2 Rosauro Rodillo, testified that accused
admitted having had sex with Zareen. On cross-examination Rodillo declared:

PROSECUTOR SENA:

Q Is it not a fact that when you confronted Jun Salarza that he had raped
the victim Zareen Smith he admitted he used Zareen Smith only he justified
it that Zareen Smith loves him also?

A Yes, Sir.

COURT:

Q What did the accused admit to you?

A That he had sex with Zareen Smith because Zareen Smith loves him, Your
Honor. (TSN, 8 June 1994, 22-23)

For another, and more specifically as to accused's claim that he was not sufficiently stimulated to
achieve an erection, the trial court, which had the singular advantage of observing accused's
deportment and manner of testifying and taking full use of all aids to arrive at a more accurate
assessment of his credibility, declared:

The version of the accused on this score is unnatural, abnormal and contrary to human
nature and experience. Only inanimate objects do not react. The accused looks normal and
not otherwise as a human person. The court saw and observed him to be so. With his young
age and status it is unlikely that his penis will not erect or harden if held and played by a
woman younger than him but single like him, especially a foreigners. (id. 71).

The trial court must have borne in mind the fact that on two previous occasions, accused had carnal
knowledge of two foreigners of the opposite sex at the same Mary's Cottage where Zareen claimed to
have been raped by accused. On questions by the trial court, accused volunteered the information
that he had sex with two foreigners, thus:

COURT:

xxx xxx xxx

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 Q As caretaker of the cottage, have you had even one sexual intercourse
with tourist, not necessarily Zareen Smith?

A I have, Your Honor.

Q How many foreigners?

A Two times, Your Honor.

Q Both foreigners?

A Yes, Sir.

Q White?

A Yes, Sir.

Q Americans?

A No, Sir.

Q What are they?

A They are from Netherlands, Your Honor. (TSN, 9 June 1994, 29-30).

Notably, accused likewise failed to convincingly refute the testimony of Enrico that at one time the
accused went inside a cottage where a female foreigner was sleeping; although no rape happened,
the latter cried and reported the incident to her sister. (TSN, 2 June 1994, 31-32).

The trial court correctly took note of these previous incidents, for under Section 34 of Rule 130 of the
Rules of Court, they can be received "to prove a specific intent, . . . plan . . . scheme, habit . . . and the
like." With those incidents as premises, relevant as they are in legal contemplation, the conclusion is
inevitable that the accused is a woman molester, with a lechery partial to Caucasians. His description
of himself then as a "fisherman and public relation officer and a tourist guide at the Mary's Cottage,"
(TSN, 9 June 1994, 3) was nothing but a camouflage to conceal a satyr on the prowl.

There is, as well, no doubt in my mind that accused intentionally proceeded to Mary's Cottage to
molest Zareen. If he merely wanted to go to the public restroom to wash off the sand on his body, he
could have done so without passing by Mary's Cottage, as the communal restroom. That was more
than one hundred meters away from Mary's Cottage. Moreover, it was not necessary for him to wash
off the sand at the public restroom, he could have simply returned to the sea nearby. He went to
Mary's Cottage because he knew Zareen was there, Ricky having gone back to the beach without her.

Zareen's unhesitating admission of nightly sex with her boyfriend Ricky and sexual congress with her
previous boyfriends should not have been taken against her, as the ponencia impliedly suggests; in
fact, they were even earmarks of her truthfulness. She could have easily hidden those facts, there
being no necessity for their revelation. It would then be irrelevant and thus impermissible to consider
Zareen's behaviour and conclude that she was sexually indiscriminate as the defense would make her
out to be. Clearly, a distinction may be drawn between one who is sexually active, but monogamous,
on one hand, and who engages in indiscriminate promiscuity, on the other. But even assuming
otherwise, it must not be forgotten that even prostitutes may be a victim of rape (People v. Rivera,
242 SCRA 26, 37 [1995]), and the victim's unchaste character is neither a defense nor a mitigating
circumstance in rape cases (RAMON C. AQUINO, The Revised Penal Code, vol. 3 [1988], 405-406).

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 With equal strength, it must not be overlooked that the character assassination employed by accused
against Zareen is simply contrived and an afterthought. The accused forgot that his main thesis was
that he was under the influence of liquor (Tanduay) or, as testified to by his witness PO2 Rodillo, the,
accused, was drunk, thus:

COURT:

Q When you met Jun Salarza on the beach, Jun Salarza went on his own
way and proceeded to Mary's Cottage?

A No, your Honor.

Q What happened?

A We detained him temporarily to rest and that because he was drunk,

Your Honor.

Q In your station?

A Yes, Your Honor.

Q So, because he was drunk you detained him not because of the reported
rape?

A For both reasons, Your Honor. (TSN, 8 June 1994, 21).

If indeed the accused was drunk, it would have been impossible for him to observed vividly, must less
accurately recall what transpired.

Finally, Zareen's conduct immediately after discovering that the man who penetrated her was not
Ricky, but the accused, further strengthened the credibility of her story that she was penetrated by
the accused. She shouted at and confronted the accused, ran to the bathroom to wash, cried and
became hysterical. Her cries were in fact heard by Nenita Marañon, caretaker of the Mary's Cottage,
although Nenita was staying at a place which 500 meters from Mary's Cottage (TSN, 1 June 1994, 8-9);
she reported the incident to the police authorities and submitted herself to an investigation. Then she
voluntarily submitted herself to a physical and medical examination by a physician who examined her
private parts. These speak eloquently of her sincerity in obtaining justice and seeking redress for a
wrong, and of the absence of any ulterior motive on her part.

Having thus shown that accused consummated his carnal knowledge of Zareen, the issue that remains
to be resolved is whether that act constituted rape under the second circumstance of Article 335 of
the Revised Penal Code. This Article pertinently provides 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 trial court held as it did because Zareen was half-asleep and believed in good faith that the
accused was her boyfriend Ricky. The trial court did not use the word unconscious, it only ruled that

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 she was "half-asleep or subconscious (sic)" in one instance (Decision, p. 17; OR, 68) or "half-asleep
and semi-conscious" in another instance (id., 21; id., 72).

When a woman is "deprived of reason" or is "unconscious," she is deemed to have "no will," as
distinguished from the first circumstance where force or intimidation is used, in which case her will "is
nullified or destroyed," or that it was committed against her will (AQUINO, op. cit., 393).

Deprivation of reason need not be complete, as mere mental abnormality or deficiency is enough.
(Id., 393-394) The crux of the matter then is the construction and interpretation of the word
"unconscious." I submit that since both "being deprived of reason" and "unconsciousness" are
founded on absence of will to give consent intelligently and freely, the term "unconsciousness," then,
should not be tested by a mere physical standard, i.e., whether one is awake or asleep, conscious or
alert. Rather, the inquiry should likewise determine whether the victim was fully informed of all
considerations so as to make a free and informed decision regarding the grant of consent. It is only
through this two-tiered test that a holistic appraisal of consent may be had.

In our jurisprudence, carnal knowledge of a sleeping woman is rape (People v. Dayo, 51 Phil. 102
[1927]; People v. Corcino, 53 Phil. 234 [1929]; People v. Caballero, 61 Phil. 900 [1935] and People
v. Conde, 322 Phil. 757 [1996]), because in that state the woman is completely unconscious, both
physically and mentally. Sleep, being the naturally or artificially induced state of suspension of
sensory and motor activity (People v. Conde, supra, at 767), obviously deprives a woman of the ability
to consent. However, to repeat, since it is "absence or lack of will" which is the primordial factor in
the second circumstance of rape, then I submit that to construe the term "unconsciousness"
exclusively in light of physical considerations would be unduly restrictive and fail to heed the
gravamen of the offense, i.e., lack of consent.

The ponencia makes much of Zareen's testimony that she was aware that someone pulled off her
underwear and spread her legs, then concludes that she must have been fully conscious and could not
have been mistaken as to her partner's identity. However, to take this at face value would not serve
the ends of justice. Plainly, despite Zareen's awareness of what was being done to her, the question
of who was doing it to her was a totally different matter. Her accession to the what was premised on
the belief, in good faith, that it was her boyfriend who lay with her in bed. Her failure to ascertain the
identity of her partner was a mistake in good faith for which she should not be faulted; neither should
it result in the acquittal of accused-appellant.

In Zareen's case, she was still "half-asleep" or drowsy when she was penetrated by the accused,
having been awakened when he removed her underwear and mounted her, which she acceded to
believing, in good faith, that it was her boyfriend Ricky, with whom she had nightly intercourse. When
this belief turned out to be erroneous when accused announced, in the midst of the act, that he was
not Ricky, but Jun (the accused), that was the only time that Zareen became fully aware of the totality
of circumstances — critically, that of her partner's identity — at which time she intelligently and freely
exercised her will by immediately and unequivocally rejecting the accused.

I submit that an inquiry into whether or not Zareen was half-asleep does not suffice as regards the
determination of an intelligent grant of consent; hence it may be said that in a sense, the grant of
consent was likewise not free. Clearly, it is only when a woman is fully informed that consent may be
intelligently given — which was absent in the instant case. Further, given that Zareen was newly
awakened and still drowsy; that it was 2:30 a.m.; that she was in her cottage; and that she had known
only Ricky for the last three weeks, it was then not unreasonable for her to presume that the man
who lay with her that night was no one else but Ricky.

However, should there by any further debate on the issue of Zareen's physical condition and
consequences thereof, i.e., she was "awake" thus fully conscious, I assert that Zareen's failure to
detect that it was not Ricky who lay with her that night, was not only not unreasonable, but perfectly
understandable, in light of human nature and as recognized by the medical profession.
"Consciousness" has been described by medical practitioners as denoting a state of awareness of

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 one's self and one's environment;1 conversely, whether a person is disoriented is measured by one's
degree of alertness and awareness of the environment, considering the circumstances of time, place
and person.2

What matters for purposes of this opinion is that the medical profession recognizes a spectrum of
impaired or depressed consciousness and orientation in persons who are nevertheless deemed
"awake." The terms used in this regard are obtundity, somnolence and stupor.3 While we wish not to
dabble in areas where we admittedly do not possess the requisite expertise, at bottom, given the
circumstances of time and place, Zareen was clearly, in layman's language: disoriented, drowsy or
confused,4 thus cannot be held culpable for her failure to immediately recognize that it was not Ricky,
nor her failure to ascertain Jun's identity, not even her assumption that it was Ricky who lay with her:

This orientation as to person, place, and time depends on the ongoing sensory
impression. Have you ever awakened from a deep sleep to find that momentarily you did not
know the day, the hour, or even where you were? Weren't your mental functions impaired
until you became oriented, until all the pieces of the puzzle suddenly fell into place? . .
.5 (emphasis supplied)

Returning to the legal front, what is material here is that any semblance of consent given was clearly
and painfully a mistake in good faith, as Zareen was not fully aware of the totality of the
circumstances, thus rendering her, for all legal intents and purposes, unconscious and unable to give
consent freely and intelligently. All told, this instance of reverse error in personae, clearly a material
factor in the grant of consent by the victim, resulted in total absence of consent which accused-
appellant should be held criminally liable for as charged.

On a final note, however, the penalty therefor should not be death, as erroneously ruled by the trial
court. Under Article 335 of the Revised Penal Code, as amended by R.A. No. 7659, death is imposable
only under any of the following circumstances, none of which obtain here:

When 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 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 old 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 or consanguinity.

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 4. When the victim is a religious or a child below seven (7) years old.

5. When the offender knows that he is afflicted with Acquired Immune

Deficiency Syndrome (AIDS) disease.

6. When committed by any member of the Armed Forces of the Philippines

or the Philippine National Police or any law enforcement agency.

7. When by reason or on the occasion of the rape, the victim has suffered
permanent physical mutilation. (As amended by Sec. 11, RA 7659.)

WHEREFORE, I vote to affirm the decision, subject to the modification of the penalty which should be
reduced from death to reclusion perpetua.

Padilla, Romero, Melo and Panganiban, JJ., concur.

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