SECOND DIVISION 6. Stab wound, elongated, gaping, measuring 3.5 cm.
in
G.R. No. 130492        January 31, 2001
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
SALVADOR ARROJADO, accused-appellant.
MENDOZA, J.:
1 5.5 cm. in depth directed downward, located at the xiphoid
This is appeal from the decision  of the Regional Trial Court, Branch 19,
Roxas City, finding accused-appellant Salvador Arrojado guilty of murder and
sentencing him to suffer the penalty of 30 years of reclusion perpetua and to
pay the amounts of P60,000.00 as civil indemnity, P80,000.00 as moral
damages, and the costs to the heirs of the victim Mary Ann Arrojado. 2
The Information against accused-appellant alleged:
That on or about the 1st day of June, 1996, in the City of Roxas,
Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, armed with a knife, with intent to kill, with
treachery and evident premeditation, did then and there willfully,
unlawfully, and feloniously attack, assault, and stab one Mary Ann
Arrojado, on the different parts of the body, to wit:
1. Stab wound, gaping, 1.5 cm. Length with a depth of 5 cm.
Located at the supra sternal area;
2. Stab wound, gaping, measuring 3 cm. in length, 10 cm.
depth, directed downward 5 cm. above the left nipple area
the level of midclavicular line;
3. Stab wound, elongated, gaping, measuring 2.5 cm. in
length, 5.5 cm. depth, located 4 cm. above the left nipple
area, midclavicular line;
4. Stab wound, elongated, gaping measuring 3 cm. in length,
18.53 cm. in depth, directed medially downward, located 3
cm. above the left nipple, midclavicular line;
5. Stab wound, elongated, gaping measuring 3 cm. in length,
10.5 cm. depth, located 3 cm. medial to the left nipple;
length, 12 cm. in depth, directed laterally downward, located,
12 cm. in depth, directed laterally downward, located 2 cm.
medial to the left nipple;
7. Stab wound, elongated, gaping, measuring 3.5 cm. in
length, 12 cm. in depth, directed laterally, located 2 cm.
medial to the left nipple;
8. Stab wound, elongated, gaping measuring 3 cm. in length,
area;
9. Stab wound, elongated gaping, measuring 3 cm. in length,
4 cm. in depth, directed medially, located 4 cm. below the left
nipple;
10. Stab wound penetration, measuring 4 x 4 cm. in length
with [e]visceration of the small intestine;
Thereby inflicting upon her serious and mortal wounds which were
the direct and immediate cause of her death.
That by reason of the death Mary Ann Arrojado, her heirs incurred
actual and moral damages which may be awarded under the Civil
Code of the Philippines.
CONTRARY TO LAW.4
The information was read and explained to accused-appellant in his native
dialect, after which he pleaded not guilty.5 Trial on the merits then ensued.
The evidence for the prosecution shows the following:
Accused-appellant Salvador Arrojado and the victim Mary Ann Arrojado are
first cousins, their fathers being brothers. The victim's father, Alberto
Arrojado, who was living in Canada, suffered a stroke for which reason he
decided to come home to Roxas City and spend the remainder of his days
there. The victim accompanied her father to the Philippines. They eventually
settled in a house in Barangay Tanque, Roxas City, where they lived on the
financial support of the victim's sister Asuncion, who continued to live in
Canada, and her brother Buenaventura, who continued to live in Canada,
and her brother Buenaventura, who lived in Manila.
Starting February 15, 1996, accused-appellant lived with the victim and her
father. He helped care for the victim's father, for which he was paid a
P1,000.00 monthly salary.6
In the early morning of June 1, 1996, accused-appellant went to the house
cousin, Erlinda Arrojado Magdaluyo, and reported that the victim had
committed suicide. In response, Erlinda, together with her husband Romulo
Magdaluyo and her father Teodorico Arrojado, went with accused-appellant
to the house in Barangay Tanwue where they found the victim dead. The
victim, who was bloodied, was lying on her left side facing the bedroom door
with her hands clasped together. On her bed was a rosary and a cruifix. Near
her was a knife (Exh. C).7 Erlinda recognized it to be the knife kept in the
kitchen. Erlinda also noticed that the electric fan was turned on full blast,
while all the windows were closed except the window on the east side which
was slightly open. As he went to the other room, where the victim's father
stayed, accused-appellant told Erlinda that he was afraid he might be
suspected as the one responsible for the victim's death. 8
The matter was reported to the police which noticed that the victim's room
"was very neat as if nothing happened." The police saw no signs of forcible
entry.9 They made a sketch of the victim's position in relation to the whole
house (Exh. D)10 and took pictures of her (Exhs. E-E-3).11
Dr. Ma. Lourdes Roldan, of the Roxas City Health Office, conducted the
postmortem examination of the victim at 1:30 p.m. of June 1, 1996. Her
findings revealed that the victim sustained the following stab wounds:
1. Stab wound, gaping, 1.5 cm. Length with a depth of 5 cm. Located
at the supra sternal area;
2. Stab wound, gaping, measuring 3 cm. in length, 10 cm. depth,
directed downward 5 cm. above the left nipple area the level of
midclavicular line;
3. Stab wound, elongated, gaping, measuring 2.5 cm. in length, 5.5
cm. depth, located 4 cm. above the left nipple area, midclavicular
line;
4. Stab wound, elongated, gaping measuring 3 cm. in length,
18.53 cm. in depth, directed medially downward, located 3 cm. above
the left nipple, midclavicular line;
5. Stab wound, elongated, gaping measuring 3 cm. in length, 10.5
cm. depth, located 3 cm. medial to the left nipple;
6. Stab wound, elongated, gaping, measuring 3.5 cm. in length, 12
cm. in depth, directed laterally downward, located, 12 cm. in depth,
directed laterally downward, located 2 cm. medial to the left nipple;
7. Stab wound, elongated, gaping, measuring 3.5 cm. in length, 12
cm. in depth, directed laterally, located 2 cm. medial to the left nipple;
8. Stab wound, elongated, gaping measuring 3 cm. in length, 5.5 cm.
in depth directed downward, located at the xiphoid area;
9. Stab wound, elongated gaping, measuring 3 cm. in length, 4 cm.
in depth, directed medially, located 4 cm. below the left nipple;
10. Stab wound penetration, measuring 4 x 4 cm. in length with
[e]visceration of the small intestine;12
Dr. Roldan testified that the victim died at around midnight of May 31, 1996
from wound nos. 2, 4, 6, 7, and 10, which she deemed fatal. 13 Thus, in the
victim's death certificate (Exb. B),14 she listed "HEMORRHAGIC SHOCK as
the victim's immediate cause of death and "multiple stab wounds" as the
antecedent cause.
Erlinda Arrojado Magdaluyo testified that the relationship between the victim
and accused-appellant had been strained as the victim constantly picked on
accused-appellant even for the slighest mistake. Erlinda remembered the
scolding that the victim gave accused-appellant on May 27, 1996 over the
loss of keys. Accused-appellant was badly hurt by the victim's tonguelashing,
according to Erlinda, and complained to the victim, "You're too much."
Erlinda said she offered to take the victim in her house, but the latter refused,
saying that her place was with her father. The victim entrusted, however, her
jewelry and bank book with signed withdrawal slips to Erlinda. Three days
later, on May 30, 1996, Erlinda returned the same and told the victim that she
should no be afraid of accused-appellant because he was taking care of both
her (the victim) and her father. Erlinda said she again met the victim on May
31, 1996 when she reminded the latter of their agreement to go out the
following day, June 1, 1996. On that day, however, the victim was found
dead.15
Another relative of accused-appellant and the victim, Thelma Arrojado,
corroborated Erlinda's testimony. The father of Thelma's husband, Roque
Arrojado, is a brother of the victim's father and that of accused-appellant.
Thelma said that she and her husband lived at one time with the victim, and
she knew the latter to be a snob ("suplada") and overly strict. Because they
did not get along with the victim, Thelma and her husband eventually left.
She testified that accused-appellant was angry at the victim and in fact
passed by her store thrice (on May 27, 29, and 31, 1996), complaining to her
of the victim's maltreatment of him.16
Accused-appellant testified in his behalf. He told the court that on June 1,
1996, at around 6:00 a.m., Alberto Arrojado asked him for food, so accused-
appellant went to the kitchen to find out if the victim had already prepared
breakfast. When accused-appellant found that the victim was not in the
kitchen, he proceeded to the victim's room. From the doorway, he saw the
victim lying on her bed, bloodied. He thought that the victim had committed
suicide because the victim had told him that she felt tied down taking care of
her father. She in fact once remarked that "It would be better that my father
and I commit suicide." Accused-appellant said that the victim scolded him
only once and that was for buying rotten cabbage. 17 He said that the victim
was the one who was constantly being scolded by her father who often found
fault with her. When presented with the knife found on the victim's bed (Exh.
C), accused-appellant admitted he was familiar with the knife as he saw the
victim using it in kitchen.1âwphi1.nêt
On April 21, 1997, the trial court rendered its decision, the dispositive portion
of which reads:
WHEREFORE, in view of all the foregoing, this Court finds and
declares accused Salvador Arrojado GUILTY beyond reasonable
doubt of the heinous crime of murder, defined and penalized by Art.
248 of the Revised Penal Code, as amended by Section 6 of
Republic Act 7659, and, there being no aggravating circumstance,
hereby sentences him to imprisonment of thirty (30) years
Hence this appeal. Accused-appellants assigns the following errors as
of reclusion perpetua, and to indemnity the heirs of the deceased
allegedly having been committed by the trial court:
Mary Ann Arrojado in the amount of P60,000.00, pay them moral
damages of P80,000.00, and pay the costs of this action.
In the service of his sentence consisting of deprivation of liberty, the
accused, who is a detention prisoner and not otherwise disqualified,
shall be credited with the full time of his confinement under
preventive imprisonment, provided he voluntarily agrees in writing to
abide by the same disciplinary rules imposed on convicted prisoners,
pursuant to Art. 29 of the Revised Penal Code.
SO ORDERED.18
The trial court held that there was sufficient circumstantial evidence to convict
accused-appellant for the victim's death. In its decision, the trial court said:
The accused was the only person in the world who had the strong
motive to eliminate from earthly existence the deceased, who had no
known enemies, as he could no longer endure the verbal abuse to
which he was frequently subjected, even on trivial matters, by the
deceased whom he must have perceived as his evil tormetor. Being
older [but] every now and then scolded, insulted, and humiliated, he
must have felt that the deceased had no respect for him as a person
and elder cousin. Suicide being physically impossible and there
being no shared of evidence showing that an intruder could have
surreptitiously entered the house as all doors and windows were
securely closed, the killing could have been done only by someone
who was already inside the house. Certainly it could not have been
the deceased's old and invalid father who could not stand on his
own, much less walk from his room to the kitchen, get the fatal
weapon, the kitchen knife, from where it was placed therein, walk to
his daughter's room, and then stab her. As there were only the three
of them inside the house, that leaves no one else, by the process of
elimination, who could have perpetrated the dastardly act but the
accused who had the only motive to do it and who was inside the
house at the time of the commission of the crime. Reinforcing this
conclusion is the admission of the accused that when he peeped into
the room of the deceased and allegedly saw for the first time the
lifeless body of the victim, he was already sure, even without going
near or touching her body and asking aloud what happened to her,
that she was already dead because he stabbed her not only once,
but ten (10) times, inflicting five (5) mortal wounds. And he had the
gall to attribute his cousin's untimely death to suivide because he
could not concoct any other reason to save himself. 19
THE REGIONAL TRIAL COURT ERRED IN FINDING THAT MARY
ANN ARROJADO WAS STABBED TEN TIMES AT HER HOME.
THE REGIONAL TRIAL COURT ERRED IN RULING THAT MARY
ANN ARROJADO COULD NOT HAVE COMMITTED SUICIDE.
THE REGIONAL TRIAL COURT ERRED IN FINDING THAT THE
HOUSE OF MARY ANN RROJADO WAS TOTALLY CLOSED AND
LOCKED AGAINST INTRUDERS.
THE REGIONAL TRIAL COURT ERRED IN FINDING THAT
ACCUSED-APPELLANT WAS ABUSED AND OPPRESSED BY
MARY ANN ARROJADO THAT LED ACCUSED-APPELLANT TO
KILL MARY ANN ARROJADO.20
First.  Accused-appellant claims that most of the victim's wounds were
inflicted after she had already committed suicide to make it appear that she
was murdered. He says that he saw only one wound in the victim's
stomach,21 while Erlinda Arrojado Magdaluyo said she saw only two wounds,
one on the victim's neck and the other in her abdomen. These are wound
nos. 1 and 10 in the postmortem examination. 22 Of these two, the stomach
wound was fatal, according to Dr. Roldan. 23 accused-appellant says that the
other wounds may have been inflicted on the victim between the time the
body was brought out of the house in the morning and the time Dr. Roldan
examined the same at around 1:30 o'clock in the afternoon og June 1, 1996
at the De Jesus funeral parlor.24
Accused-appellant's contention has no merit. That accused-appellant only
saw one wound while Erlinda Magdaluyo saw two one wound while Erlinda
Magdaluyo saw two wounds on the victim does not necessarily mean that the
other wounds were inflicted upon the victim afterwards. The two might have
simply missed seeing the other wounds. In accused-appellant's case, it may
be because he did not go inside the room but only viewed the body from a
distance.25 On the other hand, while Erlinda Arrojado Magdaluyo went near
the victim's chest because the latter was dressed. 26 But Dr. Roldan, who
conducted a postmortem examination, testified that the victim actually
sustained ten wounds. Between the cursory examination of the victim by
accused-appellant and Erlinda Arrojado Magdaluyo and Dr. Roldan's
exhaustive examination, there is no doubt that the latter's findings are entitled
to credence.
Accused-appellant also argues that the varying depths of wound nos. 2, 4, 5,
8 and 9 (10 cm., 10.5 cm., 5.5 cm., and 4 cm.) despite the fact that they had
the same surface length of 3 cm. could only mean that after the victim was
found dead, she was again stabbed with a knife or knives other than the one
(Exh. C) found beside her.27
The contention is without merit. The variance in depth does not necessarily
mean that more than one weapon was used. As has been stated:
[I]t is not possible to determine the depth of penetration of a
stab wound with any degree of accuracy, inasmuch as
effusion of blood into the tissues, changes in the position of
the viscera, or numerous other circumstances may alter the
conditions existing at the time when the wound was inflicted.
Consequently, the depth of the track at autopsy may be
different from the actual penetration of the instrument at the
time of the stabbing. Moreover, it is not always possible to
correlate the depth of the wound with the blade of the
stabbing instrument. For example, a short blade of two
inches can penetrate four inches into a soft area like the
thigh or through the anterior abdominal wall because the
force of the thrust may dent the tissues appreciably and thus
deepen the wound. Conversely, a long blade may not be
thrust into its full length, and the wound may be shorter than
the blade. For these reasons attempts to correlate the depth
of the track and the length of the weapon should be made
with caution.28
Dr. Roldan in fact testified that the kitchen knife, marked as Exh. C, could
have caused all the wounds sustained by the victim. 29 She also testified that
the stab wounds could have all been inflicted in the span of one
minute.30 Having examined no less than 100 victims of violence, 31 Dr.
Roldan's conclusions should be given credence.
Moreover, with the exception of wound no. 10, all the wounds were described
by Dr. Roldan as "gaping." As stated in Forensic Medicine:
… An ante-mortem wound gapes; there is eversion of the edges; a
large amount of blood is present, this is coagulated and infiltrating
the wound; and there is swelling and signs of inflammation and
repair. In a post-mortem wound there is no gaping. The bleeding is
slight, if any, and it does not infiltrate the wound. 32
This belies accused-appellant's theory that the victim committed suicide and
that it was only after she was found dead that she was again stabbed to
make it appear that she had been killed.
Nor were the bloodsstains which PO2 Orly Baril 33 and Erlinda Arrojado
Magdaluyo34 found on the victim's hands necessarily evidence of the victim's
suicide. The bloodstains could have come from the wounds sustained by her
rather than from her attempt to kill herself.
Accused-appellant also insists the victim committed suicide because she was
feeling respondent over her remaining single, her lack of regular employment
which made her dependent on the support of her siblings, and the
responsibility of taking care of her father who had become an invalid. He
cites Erlinda Arrojado Magdaluyo's testimony that the victim entrusted her
jewelry and bankbook to her four days before she died. 35
Erlinda, however, testified that the victim did this because she had a
premonition that accused-appellant might harm her, and not became of any
intimation that she (the victim) would kill herself.36
Contrary to the claim of accused-appellant that the victim was a depressed
person with a low sense of self-worth, Erlinda Arrojado Magdaluyo described
the victim as "a jolly person" who had many friends who go to her house.
Moreover, according to Erlindam, the victim, while not earning a fixed
income, was not without means of livelihood. The victim was good at cooking
and took orders from neighbors. Erlinda also disclosed that on the very day
the victim was found dead, she and the victim had plans to go out for
relaxation.37 This negates any theory that the victim committed suicide.
Second.  Somewhat inconsistently with his claim that the victim was a
suicide, accused-appellant disputes the trial court's conclusion that only one
of those residing in the house could have killed the victim because the police
found not sign of a break-in. Accused-appellant says that in the morning of
June 1, 1996, he found that the kitchen door leading outside was open. 38
Accused-appellant's contention must fail. Accused-appellant admitted that it
did not occur to him that an intruder was in the house in the evening of May
31, 1996 because "No person could get inside because the windows were
closed and besides the doors were closed."39
Significantly, Erlinda Arrojado Magdaluyo testified that accused-appellant
also said that no person could get inside the house because the doors and
the windows were closed.40 Accused-appellant never told Erlinda that the
kitchen door was open that morning. Indeed, Erlinda testified that "it is not
possible that somebody would enter the house as the doors were securely
locked… with additional barrel bolts, and the windows have grills." 41
Third. Accused-appellant contends that Thelma Arrojado's testimony does
not deserve consideration because, by her own admission, 42 the victim's
sister Asuncion asked her to testify on accused-appellant's complaints
against the victim's treatment of him. He also claims that it was inconsistent
for Erlinda to testify, on the one hand, that the victim was "loving friendly, and
reasonable" and, on the other to say that she was strict and domineering.
Accused-appellant cites the testimony of the victim's brother, Buenaventura
Arrojado, that before her death the victim denied having any quarrel with
accused-appellant.43
To be sure, the evaluation of the trial court of the credibility of witnesses will
not be disturbed on appeal unless it is shown that it overlooked certain facts
or circumstances of substance that, if considered, could have affected the
outcome of case. This is because the trial court is in a better position to
decide the question of credibility having heard the witnesses and observed
their deportment during the trial.44 In this case, accused-appellant's
contention that the testimonies of Thelma Arrojado and Erlinda Arrojado
Magdaluyo are incredible is without merit. Thelma Arrojado's admission that
the victim's sister Asuncion had asked her to testify does not impair her
credibility. Thelma was can did enough to say that at first she was hesitant to
testify because accused-appellant is also her relative. But she denied having
been coached on what to say, stating that she only testified as to "what
Salvador Arrojado said to me" which is that he could not bear the victim's
maltreatment.45
As for Erlinda Arrojado Magdaluyo, she said that she suspected accused-
appellant but she did not want to say anything until she had proof. 46 She
testified also that so far as she knew, only accused-appellant harbored a
grudge against the victim, and that accused-appellant himdelf told her
so.47 With regard to Erlinda's seemingly inconsistent description of the victim,
suffice it to say that the victim's treatment of accused-appellant does not
necessarily reflect her attitude and behavior toward other people.
Anent the testimony of the victim's brother, Buenaventura Arrojado, that the
victim denied having any quarrel with accused-appellant when he called her
up two weeks before her death, 48 it is possible that the victim did not want to
bother her brother who was after all too far (since he lived in Manila) to be of
much help. It is only to be expected that Erlinda Arrojado Magdaluyo and
Thelma Arrojdo, who lived near accused-appellant and the victim, have a
much more accurate assessment of the real relationship between accused-
appellant and the victim. Buenaventura Arrojado testified that it was Erlinda
Arrojado Magdaluyo who told him of the alleged quarrel between the victim
and accused-appellant.49
In sum, the following circumstances point to accused-appellant as the
perpetrator of the crime:
1. Accused-appellant, the victim, and the latter’s father were the only
ones living in the house in which the crime was committed in the
evening of May 31, 1996.50
2. No one from the outside can gain entry since all doors of the
house were locked and the windows had grills. 51
3. Accused-appellant had access to the victim’s bedroom because
the bedroom doors were left unlocked so that the victim could check
on her father’s condition during the night. Accused-appellant sleeps
in the same bedroom as the victim’s father.52
4. The murder weapon was a kitchen knife readily accessible to the
occupants of the house.53 As the Solicitor General observed,
common sense dictates that if an outsider entered the house with the
intent to kill the victim, he would have brought his own weapon to
ensure the execution of his purpose.54
 5. None of the victim’s belongings was missing or disturbed,
indicating that the motive for the crime was not gain but revenge. 55
6. Judging from the number and severity of the wounds (10 stab
wounds, half of which were fatal),56 the killer felt deep-seated
resentment and anger toward the victim. Accused-appellant had
admitted those feelings to Erlinda Arrojado Magdaluyo and Thelma
Arrojado.57
7. Aside from accused-appellant, no one was known to harbor a
grudge against the victim.58
8. As the Solicitor General also pointed out, accused-appellant’s
behavior in the morning of June 1, 1996 was inconsistent with
someone who had just found his cousin and employer, a person he
claims to get along with, dead.59 By his testimony, he did not even go
inside the room to check on her condition on the lame excuse that he
was afraid. He also did not inform his neighbors about the incident
for the equally flimsy reason that he did not know them nor did he go
to the police.60
Under Rule 133, §4 of the Rules on Evidence, cricumstantial evidence is
sufficient for conviction if (a) there is more than one circumstance; (b) the
facts from which the inference are derived are proven; and (c) the
combination of all circumstances is such as to produce a conviction beyond
reasonable doubt. As the foregoing discussion shows, these requisites have
been established in this case.
Fourt. With respect to the circumstances attending the commission of the
crime, the trial court correctly appreciated the qualifying circumstance of
treachery against accused-appellant. To appreciate treachery, two conditions
must be present: (1) the employment of means of execution that gives the
person attacked np opportunity to defend himself or to retaliate and (2) the
means of execution is deliberately or consciously adopted. 61 Both requisites
have been established in this case.
Anent the first requisite, Dr. Roldan testified that based on her findings, the
victim was not in a position to fight the assailant and that she might have
been stabbed while she was asleep. 62 As regards the second requisite, the
number and nature of the wounds sustained by the victim lead to no other
conclusion thatn that accused-appellant employed means in killong the victim
which tended directly and specially to ensure its execution without risk to
himself arising from the defense so many wounds, a total 10, half of which
were fatal, if he had not deliberately adopted such manner of attack. 63 Abuse
of superior strength also attended the killing since accused-appellant, a man
and armed with a knife, attacked the victim, an unarmed and dfenseless
woman.64 However, since abuse of superior strength is absorbed in
treachery, there is no need to appreciate it separately as an independent
aggravating circumstance.65
The trial court correctly held that there was no proof of evident premeditation
since the requisites thereor, to wit, (a) the time when the accused determined
to commit the crime; (b) an act manifestly indicating that the accused had
clung to his determination; and (c) sufficient lapse of time between such
determination and execution to allow him to reflect upon the consequence of
his act,66 have not been established in this case.
Nor can the generic aggravating circumstance of dwelling be appreciated
against accused-appellant since the latter and the victim lived in the same
house.67
The aggravating circumstance of abuse of confidence, however, is present in
this case. For this aggravating circumstance to exist, it is essential to show
that the confidence between the parties must be immediate and personal
such as would give the accused some advantage or make it easier for him to
commit the criminal act. The condifence must be a means of facilitating the
commission of the crim, the culprit taking advantage of the offended party's
belied that the former would not abuse said confidence. 68 In this case, while
the victim may have intimated her fear for her safety for which reason she
entrusted her jewelry and bank book to Erlinda Arrojado Magdaluyo, her
fears were subsequently allayed as shown by the fact that she took back her
personal effects from Erlinda.69 Thinking that accused-appellant would not do
her any harm, because he was after all her first cousin, the victim allowed
accused-appellant to sleep in the same room with her father and left the
bedroom doors unlocked.70
The murder in this case took place after the effectivity of R.A. No. 7659 on
December 31, 1993 which increased the penalty for murder from reclusion
temporal maximum to death to reclusion perpetua to death. In view of the
presence of the aggravating circumstance of abuse of confidence and in
accordance with Art. 63(1) of the Revised Penal Code, the trial court should
have imposed the penalty of death on accused-appellant. However, on
December 1, 2000, the Revised Rules of Criminal Procedure took effect,
requiring that every complaint or information state not only the qualifying but
also the aggravating circumstances. 71 This provision may be given retroactive
effect in the light of the well settled rule that "statutes regulating the
procedure of the court will be construed as applicable to actions pending and
undetermined at the time of their passage. Procedural laws are retroactive in
that sense and to that extent."72 The aggravating circumstance of abuse of
confidence not having been alleged in the information, the same therefore
could not be appreciated to raise accused-appellant's sentence to
death.1âwphi1.nêt

In accordance with the ruling in People v. Lucas73 that the penalty

of reclusion perpetua remains indivisible notwithstanding the fixing of its
duration from twenty (20) years and one (1) day to forty (40) years, 74 the trial
court erred in imposing on accused-appellant the penalty of 30 years
of reclusion perpetua. In the with the ruling in Lucas,  accused-appellant
should suffer the entire extent of forty (40) years of reclusion perpetua.75

Consistent with current case law,76 the civil indemnity for the crime of murder
should be reduced from P60,000.00 to P50,000.00, while the award of moral
damages in the amount of P80,000.00 should be reduced to P50,000.00.

WHEREFORE, the decision of the Regional Trial Court, Branch 19, Roxas
City, is AFFIRMED with the MODIFICATION that accused-appellant Salvador
Arrojado is sentenced to suffer the penalty of reclusion perpetua  in its entire
duration and to its full extent. Furthermore, he is ordered to pay the heirs of
the victim Mary Ann Arrojado the amount of P50,000.00 as civil indemnity
and the further sum of P50,000.00 as moral damages and the costs.

SO ORDERED.

Bellosillo, Quisumbing, Buena.JJ: concur.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION
   The attached prison records of the accused-appellant (Annexes C and D)
show that she has been confined in the Correctional Institution for Women
G.R. No. 92418 November 20, 1995 since March 20, 1990. She has been credited in the service of her sentence
with 1 year, 7 months and 2 days, the time she spent under preventive
imprisonment, and has actually served (as of August 17, 1995), inclusive of
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
good conduct time allowances, 6 years, 5 months and 1 day.
vs.
RITA LABRIAGA and JOEL LABRIAGA, accused-appellants.
Considering the quantity of marijuana involved and the period of her
incarceration, which is more than the maximum penalty of prision
RESOLUTION
correccional, the Court finds merit in the accused-appellant's motion. This
conclusion is not altered even if the 115 grams found in Ms. Labriaga's
possession, which was not considered in the disposition of her appeal, were
to be included in determining the amount of marijuana involved, as the total
MENDOZA, J.: amount would still be less than 250 grams.

Accused-appellant Rita Labriaga, through the Public Attorney's Office (PAO), The appropriate remedy of accused-appellant is to file a petition for habeas
filed this motion for reconsideration with modification of sentence. Accused- corpus  considering that the decision in this case is now final. However, in
appellant prays for the retroactive application to her case of R.A. No. 7659 accordance with our resolution in Angeles v. Bilibid Prison, G.R. No. 117568,
and for her eventual release from confinement at the Correctional Institution January 4, 1995 and People v. Agustin, G.R. No. 98362, September 5, 1995,
for Women in Mandaluyong as a consequence of the application of the new in which we held that the rules on habeas corpus  should be liberally applied
law to her case. in cases which are sufficient in substance, we have decided to treat the
motion in this case as a substantial compliance with the rules on habeas
Rita Labriaga was caught on January 28, 1988 selling two tea bags of corpus. The accused-appellant Rita Labriaga, having served more than the
marijuana in Daraga, Albay in a buy-bust operation conducted by the maximum imposable penalty of  prision correccional, should be released.
Narcotics Command. With her at the time was the other accused-appellant
Joel Labriaga, who was found in possession of 3 grams of marijuana. Rita Accordingly, the Director of the Bureau of Corrections is ORDERED to
was found in possession of 115 grams of marijuana. RELEASE Rita Labriaga y Millares from confinement at the Correctional
Institution for Women, unless there is other lawful cause for detaining her.
Corresponding charges for violation of R.A. No. 6425, otherwise known as
the Dangerous Drugs Act, were filed against them. Rita Labriaga was SO ORDERED.
convicted by the Regional Trial Court of Legazpi City, Branch 10, of drug
pushing and sentenced to life imprisonment and fined P20,000.00. On the Narvasa, C.J., Regalado and Puno, JJ., concur.
other hand, Joel Labriaga was convicted of illegal possession of marijuana
and sentenced to 6 years and 1 day to 8 years and fined P6,000.00.
Francisco, J., is on leave.
In her Motion for Reconsideration with Modification of Sentence, Rita
Labriaga invokes the ruling in People v.  Simon, 234 SCRA 555 (1994) that if
the quantity of marijuana involved is less than 250 grams, the penalty
imposable is  prision correccional, that is, 6 months and 1 day to 6 years, Rita
Labriaga contends that as the quantity of marijuana involved in her case is
only 2 tea bags and in the case of People v. Simon the contents of the 4 tea FIRST DIVISION
bags weighed 3.8 grams, the amount of the marijuana in her case would
approximately be 1.9 grams only and therefore the penalty of life G.R. No. 122290             April 6, 2000
imprisonment originally meted out to her should be reduced to prision
correccional.
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
REYNALDO BAGO y MADRID, accused-appellant, ARMANDO CAPARAS
y CUENCO and RODOLFO ONGSECO y VEGO, accused.
PUNO, J.:
Appellant REYNALDO BAGO was charged with qualified theft, while his co-
accused ARMANDO CAPARAS and RODOLFO ONGSECO were charged
with simple theft, in an Information1 which reads:
That sometime during the period from January 1992 to March 23,
1992, in Quezon City, Philippines, REYNALDO BAGO y MADRID,
being then employed as factory worker of the Azkcon Metal
Industries detailed with the Power Construction Supply Company
located at No. 130 Judge Juan Luna Street, San Francisco del
Monte, this City, and as such has free access to the different
departments of the company, with grave abuse of confidence, in
conspiracy with his co-accused ARMANDO CAPARAS and
RODOLFO ONGSECO y VEGO, conspiring together, confederating
with and mutually helping one another, with intent to gain and without
the knowledge and consent of the owner thereof, did then and there
wilfully, unlawfully and feloniously take, steal and carry away
assorted cold rolled sheets and scraps valued in the total amount of
P194,865.00, Philippine Currency, belonging to Power Construction
Supply Company, represented by WILLIAM HILO, to the damage
and prejudice of the owner thereof in the aforementioned amount.
CONTRARY TO LAW.
Appellant and his co-accused pled not guilty. Trial ensued.
Appellant was an employee of Azkcon Metal Industries (Azkcon for brevity)
from 1988 to 1992. He started working as a factory worker and later became
a machine operator and a truck helper. From 1991 to 1992, he served as
team leader at the cutting department under the supervision of Material
Comptroller WILLIAM HILO who kept track of all the materials coming in and
going out of the company's plant in Kalookan City.2
Azkcon has a business arrangement with Power Construction Supply
Company (Power Construction) whereby Azkcon buys cold rolled sheets
from the latter. These cold rolled sheets are also cut by Power Construction
for a fee and Azkcon converts them into drums or containers. Appellant's job
was to go to Power Construction's establishment in Quezon City to oversee
the cutting of the cold rolled sheets and ensure their delivery to Azkcon using
the trucks sent by Hilo.3
On April 21, 1992, appellant and his co-workers 4 went to Power Construction
and loaded two cold rolled sheets in a truck owned by Azkcon. 5 Before
entering the premises of Azkcon, appellant presented to security guard
RUBEN DE LA CRUZ MANANGAN two receipts, 6 both dated April 21, 1992,
covering the cold rolled sheets from Power Construction. Manangan
inspected the contents of the truck. As everything was accounted for,
Manangan stamped on the two receipts covering the materials. Appellant
then presented a third receipt, 7 with Invoice No. 51111, dated March 23,
1992, for stamping. Manangan likewise stamped the third receipt. As the third
receipt bore a different date, Manangan asked appellant if the materials
covered by said receipt were in the truck. Appellant replied that the materials
had long been delivered. Manangan did not investigate further but later
reported the incident to the Chief of Security Department, AFLOR ONG. Ong
checked the third receipt and when he failed to find the materials listed
thereon, he reported to Hilo.8
Upon receipt of the report, Hilo discreetly conducted a more in-depth
investigation. He found out that the materials covered by the third receipt,
worth P192,000.00, were not delivered to Azkcon. He checked the third
receipt and the gate pass of Power Construction for March 23, 1992 — the
date of the questioned transaction — and discovered that the truck used by
appellant on said date did not belong to Azkcon. It also turned out that the
subject materials had already been paid for by Azkcon. 9
Power Construction's security guard, JUN GAVARAN, confirmed that on
March 23, 1992, appellant and his companions picked up cold rolled sheets
from Power Construction and loaded them in a truck. The truck did not bear
the logo of Azkcon. Gavaran noted on a ledger that the truck came at 2:15
p.m. and left at 3:35 p.m.
Hilo did not immediately report the matter to his superior. He chose to wait for
appellant to commit a similar misdemeanor and catch him red-handed. He
waited in vain. He then decided to inform his superiors about the theft in May
1992. Hilo was directed to report the theft and file a complaint with the police
authorities.
A police team, led by SPO3 ALFREDO ALFARO, investigated appellant at
Azkcon. Appellant insisted that the materials covered by the third receipt had
been delivered to Azkcon. The investigation of appellant continued at the
police station. PO3 Andres Balod interrogated appellant. Appellant asked for
a lawyer and was brought to the Integrated Bar of the Philippines (IBP) where
he was assisted by Atty. Florimond C. Rous. Atty. Rous talked to him and
inquired if he was willing to give a statement to the police. The interrogation
then proceeded and appellant admitted his participation in the theft. He
disclosed that his cohorts on May 23, 1992 were ARMANDO CAPARAS and
RODOLFO ONGSECO, former employees of Azkcon. He revealed that they
usually loaded the stolen materials in a truck rented by Caparas and
Ongseco. He received P10,000 to P35,000 10 for his participation in the
different thefts. 11 Appellant affixed his signature on the written
statement. 12 After the investigation, PO3 Balod referred the case to Fiscal
Paragua.
The next day, the police went to Malinta, Valenzuela and apprehended
accused Caparas and Ongseco. It was appellant who pointed out the
residence of Caparas and Ongseco to the police. The two identified a certain
Chua as the alleged buyer of the stolen goods. The police invited Chua for
investigation. Inexplicably, the investigation of Chua was not reduced to
writing. 13
Appellant denied participation in the crime charged. He described his job as
team leader at the cutting department of Azkcon. He said that Hilo would
order him to proceed to Power Construction Supply to oversee the cutting
and procurement of the materials needed by Azkcon. Hilo would then instruct
him to wait for his call and the arrival of their truck at Power Construction
Supply. They would usually use Azkcon's trucks, but at other times, Hilo
would rent trucks from others. 14
As soon as the truck would arrive at the premises of the supplier, the driver
would ask for appellant. He would then load the materials in the truck and
would show the receipts covering the materials to the security guard of
Power Construction Supply for stamping. The materials inside the truck
would be counterchecked against the quantity and quality stated in the
receipts. Appellant would then return to Azkcon usually at about 4:00 p.m.
Thus, he would mainly stay at the supplier's premises to oversee the cutting
of the cold rolled sheets. 15
Appellant claimed he does not know prosecution witness Jun Gavaran, the
security guard of Philippine Construction Supply. He also denied knowing
accused Caparas and Ongseco. Allegedly, he saw them for the first time at
the police station. He admitted knowing prosecution witnesses Manangan
and Ong. He acknowledged that he had no quarrel with Gavaran, Manangan
and Ong. 16
On May 21, 1992, four (4) policemen in civilian clothes arrested him without a
warrant while working in Azkcon. They told him that Hilo filed a complaint
against him. He was detained at the La Loma police station. Hilo came and
pointed him as the one responsible for the theft but without informing him
what he stole. Upon orders of Hilo, the policemen started to beat him. They
forced him to admit the crime. They also compelled him to give a statement
but he refused. 17
The next day, the policemen and Hilo brought him to Valenzuela. Hilo
indicated to the policemen the residence of accused Caparas and Ongseco.
That was the first time he saw his co-accused. 18
Then, the policemen forced appellant to go to the IBP office in Quezon City.
They gave him Atty. Rous as counsel although he insisted on hiring his own
counsel. Atty. Rous never conferred with him. No investigation was
conducted at the IBP. The police did not ask him a single question. Without
reading his prepared statement, he signed it as the police threatened to harm
him. He acknowledged his signatures on the invoices marked as Exhibits "A"
to "D", 19 but claimed he could not recall the circumstances under which he
signed them. 20
After seven (7) days at the La Loma police station, he was taken to the
Fiscal's Office in Quezon City. The inquest fiscal did not talk to him. He was
asked about the voluntariness of his signature in his extra-judicial
confession. 21
Thereafter, he was brought back to the station. 22
Appellant's father, PABLO BAGO, testified that on June 15, 1992, he went to
the NBI to seek protection for his son as they were receiving threats from Hilo
and police officers Balod and Alfaro. Days later, Hilo, Alfaro and Balod went
to his house in Quezon City looking for appellant. Hilo warned that appellant
should admit the crime lest something untoward would happen to
him. 23 Again, after his son's arraignment, a certain Col. Hernandez visited
their house and insisted on taking appellant to Azkcon. Pablo refused,
arguing that the case had already been filed in court. 24 On another occasion,
Col. Hernandez and his lady friend dropped by his house and convinced him
and his son to talk to Mr. King, the owner of Azkcon. During their meeting,
Mr. King allegedly told Pablo that he knew that appellant was innocent but
asked him to testify against the persons responsible for the crime. Pablo
replied that they would think about the proposal. 25 Mr. King's lawyer, Atty.
Capistrano, also gave him the same advice. Atty. Capistrano requested them
to go to his office where appellant could execute a statement. Instead of
going there, Pablo and the appellant proceeded to the office of appellant's
lawyer. 26
Allegedly, appellant was maltreated while in the custody of the police. Pablo
claimed that he reported the physical abuse to the NBI. 27
Prosecution's rebuttal witness ATTY. FLORIMUND C. ROUS, free legal aid
counsel of IBP, testified that on May 22, 1992, appellant was brought to their
office for the execution of his extra-judicial confession. As a matter of
procedure, he first examined the body of appellant to determine any sign of
physical abuse or maltreatment while the latter was in police custody. Finding
none, he inquired from appellant whether he was willing to confess to the
commission of the theft. Beforehand, he already informed appellant of the
consequence of his confession, i.e., that it could be used against him.
Nonetheless, appellant affirmed his willingness to execute a written
confession. Thus, the policeman proceeded to take the statement of
appellant. Appellant signed his extrajudicial confession 28 in his (Atty. Rous')
presence.
Rebuttal witness ATTY. MELANIO CAPISTRANO testified that he was
Azkcon's legal counsel. He confirmed that a conference was held at Azkcon
premises in connection with the theft. Present were appellant, Pablo Bago,
Mr. King and a former employee of Azkcon. Due to the complexity of the
modus operandi, Mr. King suspected that appellant had other companions in
committing the theft. Mr. King then informed him that appellant had agreed to
turn state witness. Appellant confessed that his supervisor William Hilo, a
certain Severino Encarnacion and his co-accused Ongseco and Caparas
took part in the heist. Allegedly, Encarnacion was the brains behind the theft;
Hilo took care of the operations on the Azkcon side, while Ongseco and
Caparas took care of the procurement of the stolen goods. Atty. Capistrano
expressed reservations about the involvement of Hilo as he was the one who
reported the theft to the management. After the conference, he advised
appellant to consult his own lawyer and execute a statement so he could
determine if they would use appellant as a state witness. Prior to his
arraignment, appellant was told that he should decide whether he wanted to
be a state witness. In their next scheduled meeting, appellant and his lawyer,
Atty. Jambora, failed to appear. 29
On sur-rebuttal, Pablo Bago insisted that on July 1992, Col. Hernandez went
to Peñaranda, Nueva Ecija and took pictures of his house. Col. Hernandez
invited him and appellant to go to Azkcon. They refused as appellant had
already posted bail at that time. Atty. Capistrano, on the other hand, insisted
that appellant should name the other employees involved in the theft so that
they could be dismissed from the company. 30
On April 26, 1995, the Regional Trial Court of Quezon City 31 convicted
appellant of qualified theft. Accused Caparas and Ongseco were acquitted
for insufficiency of evidence. The dispositive portion of the decision 32 reads:
WHEREFORE, in view of all the foregoing, the Court finds accused
REYNALDO BAGO y MADRID guilty beyond reasonable doubt as
principal of the crime of Qualified Theft as defined and penalized
under Article 308, in relation to Article 309, paragraph 1 and Article
310 of the Revised Penal Code, and hereby sentences said accused
to an indeterminate penalty of imprisonment ranging from Twenty
(20) years and One (1) day of Reclusion Perpetua as minimum to
Twenty-Eight (28) years, Ten (10) months and One (1) day
of Reclusion Perpetua as maximum, with the accessory penalties of
the law and to indemnify the complainant in the sum of P194,865.00,
representing the value of the stolen cold rolled sheets, without
subsidiary imprisonment in case of insolvency, and to pay the
costs.1âwphi1.nêt
Accused ARMANDO CAPARAS Y CUENCO and RODOLFO
ONGSECO Y VEGO are hereby ACQUITTED for insufficiency of
evidence.
SO ORDERED.
Appellant moved for reconsideration of the trial court's decision. The motion
was denied for lack of merit, 33 although the dispositive portion of the trial
court's decision was amended, thus:
WHEREFORE, in view of all the foregoing reasons, the Motion for
Reconsideration is hereby DENIED for lack of merit.
Pursuant to People vs.  Conrado Lucas (240 SCRA 66), [the]
dispositive portion of the decision is hereby modified but only insofar
as accused Reynaldo Bago is concerned to read as follows:
WHEREFORE, in view of all the foregoing, the Court finds accused
Reynaldo Bago y Madrid GUILTY beyond reasonable doubt as
principal in the crime of Qualified Theft as defined and penalized
under Article 309, paragraph 1 and Article 310 of the Revised Penal
Code, and hereby sentences said accused to the penalty
of reclusion perpetua, with the accessory penalties of the law, and to
indemnify the complainant in the sum of P194,865.00, representing
the value of the stolen cold rolled sheets, without subsidiary
imprisonment in case of insolvency, with costs.
SO ORDERED.
The Appellant's Brief raises two issues, to wit:
I.
 THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED-
APPELLANT OF THE CRIME OF QUALIFIED THEFT BASED ON
CIRCUMSTANTIAL EVIDENCE PRESENTED BY THE
PROSECUTION.
II.
THE TRIAL COURT ERRED IN CONCLUDING THAT THE
PROSECUTION HAS PROVEN THE GUILT OF THE ACCUSED,
REYNALDO BAGO, BEYOND REASONABLE DOUBT.
We affirm with modification.
Appellant contends that the prosecution failed to prove even by
circumstantial evidence that he asported the cold rolled sheets in question.
He asserts that these materials were delivered to Azkcon as evidenced by
the receipt 34 duly stamped by the guard on duty. He states:
. . . [T]he best evidence that the materials were actually delivered at
Azkcon Metal Industries is the receipt duly stamped by the guard on
duty. Res ipsa loquitor. To receive the testimony of the security
guard, that he stamped the receipt even without the goods because
he trusted the accused, would set a precedent that will eventually
convict an innocent person. After duly stamping the receipt, it is very
easy for the security guard to claim otherwise to avoid liability. 35
Appellant also contends that his task was to oversee the delivery of the
materials from their supplier to Azkcon. Allegedly, it was erroneous to
conclude that he stole the materials just because they could not be found in
its premises as he was not responsible for any material lost therein.
Lastly, appellant belittles the documents showing that the truck he used in
taking out the materials from Power Construction on March 23, 1992 did not
belong to Azkcon. He claims that said documents had no bearing on his
culpability.
We reject these contentions.
First. Appellant, in effect, assails the testimony of Ruben Manangan, the
security guard who stamped the receipt marked as Exhibit "C", on the ground
that the receipt itself shows that the materials were delivered to Azkcon.
Appellant argues that the receipt is the best evidence and should be given
more credence than Manangan's testimony. Appellant's argument is bereft of
merit for Manangan's testimony is corroborated by another witness, William
Hilo, Material Comptroller of Azkcon who kept track of all materials coming in
and going out of Azkcon's plant. He testified that on April 21, 1992, he
received three (3) receipts but only two (2) materials were delivered to
Azkcon's premises. The receipt marked as Exhibit "C" covered the missing
materials. Manangan's testimony is further corroborated by two (2) pieces of
documentary evidence: first, by Power Construction Supply Co. Gatepass
Invoice No. 51111 dated March 22, 1992 36 which shows that the materials
covered by Exhibit "C" were taken out by appellant from the premises of
Power Construction Supply on March 23, 1992, about a month before the
receipt was stamped; and second, by a document from Power Construction
Supply dated March 23, 1992 containing information about the truck used in
pulling out the materials from Power Construction Supply on said date. The
truck bore license plate no. PRC-513 and was not owned by Azkcon. The
truck belonged to a certain Ruel Fernando who had no contractual relation
with Azkcon and said vehicle was not to be used to take out materials from
Power Construction Supply. In view of these corroborations, we hold that the
trial court did not err in giving credence to Manangan's testimony despite the
receipt.
Appellant can not rely on the best evidence rule which states:
Sec. 3. Original document must be produced; exceptions. — When
the subject of inquiry is the contents of a document, no evidence
shall be admissible other than the original document itself, except in
the following cases:
(a) When the original has been lost or destroyed, or cannot be
produced in court, without bad faith on the part of the offeror;
(b) When the original is in the custody or under the control of the
party against whom the evidence is offered, and the latter fails to
produce it after reasonable notice;
(c) When the original consists of numerous accounts or other
documents which cannot be examined in court without great loss of
time and the fact sought to be established from them is only the
general result of the whole; and
(d) When the original is a public record in the custody of a public
officer or is recorded in a public office. 37
The rule cannot be invoked unless the content of a writing is the subject of
judicial inquiry, in which case, the best evidence is the original writing itself.
The rule pertains to the admissibility of secondary evidence to prove the
contents of a document. In the case at bar, no secondary evidence is offered
to prove the content of a document. What is being questioned by appellant is
the weight given by the trial court to the testimony of Manangan over the
receipt which on its face shows that the materials in question were delivered
to Azkcon's premises. Clearly, the best evidence rule finds no application on
this issue.
Second. It is well settled that before conviction can be based on
circumstantial evidence, the circumstances proved should constitute an
unbroken chain of events which leads to one fair and reasonable conclusion
pointing to the defendant, to the exclusion of others, as the author of the
crime. 38 Thus, the following requisites must be met: 1) there must be more
than one circumstance; 2) the facts from which the inferences are derived are
proven; 3) the combination of all the circumstances is such as to produce a
conviction beyond reasonable doubt. 39
In the case at bar, the trial court convicted the appellant based on this chain
of events:
1. Azkcon Metal Industries is engaged in metal business and for this
purpose contracted a business arrangement with Power Construction
Supply whereby Azkcon purchases the cold rolled sheets from the
latter and the cold rolled sheets are cut by Power Construction
Supply;
2. Accused Bago is a trusted employee of Azkcon and detailed with
Power Construction Supply Company in charge of the Cutting
Department; and that as such he was authorized by Mr. William Hilo,
Controller Manager of Azkcon, to pull out from the Power
Construction Supply the cut materials and to deliver the same to
Azkcon;
3. On April 21, 1992, accused Bago, together with his co-employees,
Danilo Baylosis and Candido Querobin entered the Azkcon premises
with deliveries of two cold rolled sheets loaded in the truck. Security
Guard Manangan inspected the materials in the truck and after
confirming that the materials were loaded in the truck, he stamped
the receipts upon request of accused Bago. Thereafter, accused
Bago brought out another receipt and requested Security Guard
Manangan to likewise stamp the same. Security Guard Manangan
checked the goods covered by the third receipt and found there were
no cold rolled sheets for the third receipt. The third receipt carried a
different date. Security Guard Manangan asked accused Bago as to
the whereabouts of the materials covered by the third receipt and the
latter replied that they had long been delivered. Nevertheless,
Security Guard Manangan stamped this last receipt because he
trusted that accused would not do anything bad;
4. On April 21, 1992, William Hilo, the material controller of Azkcon,
discovered that there were three (3) receipts which came in, but only
two materials were delivered inside the company compound. The
materials covered by the two (2) receipts were delivered but the
materials covered by the third receipt were not. Hilo conducted an
inventory and asked accused Bago the whereabouts of the materials
in question. Accused Bago insisted that the materials had long been
delivered. Hilo proceeded with his investigation and was able to
secure from the Power Construction Supply Company Gatepass
Invoice No. 51111 dated March 22, 1992 (Exh. "D") which shows that
the materials covered by the third receipt were taken out by accused
Bago from the premises of Power Construction Supply on March 23,
1992;
5. Hilo was able to secure from Power Construction Supply a
document dated March 23, 1992 (Exh. "E") which contained
information on the truck used in pulling out the materials from Power
Construction Supply on March 22, 1992 (sic). The truck bears Plate
No. PRC-513 and is not owned by Azkcon. As per copy of the
certificate of registration secured from the Land Transportation
Office, the truck is owned by a certain Ruel Fernando who has no
contractual relations with Azkcon. Said vehicle is likewise not
authorized to pull out materials from the Power Construction Supply.
The trial court concluded that the foregoing circumstances lead to a
reasonable conclusion that appellant asported the materials covered by
Exhibit "C".
We agree.
Appellant cannot rely on the fact that the third receipt was duly stamped by
security guard Ruben Manangan on April 21, 1992. Manangan explained well
why he stamped the receipt. He said: 40
Q: On April 21, 1992, did you report for work as security guard at
AZKCON Metal Industries?
A: Yes, sir.
Q: And was there any unusual incident that transpired on that day, if
you recall?
A: There was a truck which was carrying two (2) cold rolled sheets.
x x x           x x x          x x x
Q: By the way, who were with (sic) the truck which carried the (2)
cold rolled sheets which you mentioned?
A: Bago sir.
x x x           x x x          x x x
Q: Now, when this truck came [in], with Reynaldo Bago with Bailosis
and Querubin, carrying deliveries of two (2) cold rolled sheets, what
happened after that, if anything happened?
A: After I inspected the two (2) cold rolled sheets, I stamped the
receipts for them.
Q: Before you stamped the receipts for these two (2) cold rolled
sheets, did you make sure that the goods were there?
A: Yes sir.
Q: What happened after that?
A: After I stamped the two (2) receipts, he brought out another
receipt which they asked me to stamp also.
Q: By the way, who asked you to stamp the two (2) receipts covering
the two (2) cold rolled sheets loaded in the truck?
A: Bago sir.
x x x           x x x          x x x
COURT
x x x           x x x          x x x
Q: And who was the one who brought out this other receipt for
stamping?
A: Bago sir.
Q: And what did he tell you, if he told you anything about this
receipt?
A: He said "please put a stamp on this receipt".
Q: Did you?
A: Yes, because I trusted him.
Q: And did you also check whether the goods covered by this 3rd
receipt was (sic) in the truck unloaded?
A: Sir there was no cold rolled sheet for that receipt.
Q: And why did you stamp this receipt for cold rolled sheets for that
receipt? (sic)
A: Because I trusted him that he would not do anything bad.
x x x           x x x          x x x
Q: Now, in spite of the fact that your personal knowledge of the
person Reynaldo Bago was in the course of your performance of
your duty, including Reynaldo Bago (sic), you would like to impress
upon us that in spite of that you trusted him?
ATTY. CAPISTRANO:
Argumentative, your Honor.
COURT:
Witness may answer.
A: Yes sir.
Q: In spite of the fact that the 3rd receipt according to you, when you
inspected it, there was no cold rolled sheets covering "Exhibit "C"?
A: No material sir.
Q: In spite of the fact that you did not find any Cold Rolled Sheets
material you still honored the receipt by affixing you signature after
you stamped it, correct?
A: Yes sir, but when I saw the receipt it had a different date.
 Q: . . . [D]id you ask Reynaldo Bago "why is it a different date" and Q: You spoke of three (3) receipts, did you come to see these
"why are there no Cold Rolled Sheets is (sic) the 3rd receipt"? receipts?

A: I asked him "where these materials are" and he told me that it has A: Yes, sir.
(sic) long been delivered.
Q: If I will show you them again (sic), will you be able to identify the
Q: Now did you ask him where it was (sic) delivered and what place same?
of AZKCON did he deposit these Cold Rolled Sheets which are (sic)
covered by this 3rd receipt? A: Yes, sir.

A: No, sir.
Q: Now with regards (sic) to your duty as security guard, did you call
the attention of the management about this 3rd receipt with no Cold
Rolled Sheets and you stamped the receipt knowing that there was
(sic) no materials inside. Did you ask the management, the
president, the manager, the foreman or whoever it is (sic) on duty at
the time?
A: I reported it to our chief Aflor Ong.
Q: I am showing to you these receipts which was (sic) previously
marked as Exhibits "A", "B" and "C", are these the three (3) receipts
which you mentioned a while ago?
A: Yes, sir.
Q: Would you kindly take a look at these receipts and tell the
Honorable Court, which particular receipt is controversial in the
sense that the goods described therein did not enter your company
premises?

Q: Who is this Aflor Ong? ATTY. HAMBON: (sic)

A: Chief. 41 I will object to that, Your Honor, incompetent.

The fact of non-delivery of the subject materials to Azkcon was established COURT:
through the testimony of two other witnesses, namely, William Hilo and the
Chief Security Officer Aflor Ong. Hilo declared: 42 The witness may answer.

ATTY. CAPISTRANO (The witness is examining the document).

Q: On April 21 (1992), would you please tell us what happened on INTERPRETER:

that date?
A: On April 21, the materials arrived and the guard checked it (sic)
and I checked it (sic) also. We found out that there were three (3)
receipts but there were only two (2) materials inside the company.
Q: How did you come to know this, Mr. Witness?
A: It was reported by the OIC of the Security Guard, sir.
Witness is pointing to Exhibits "A" and "B", as the one with the
materials arrived (sic) and pointed to Exhibit "C" as the controversial
receipt.
ATTY. CAPISTRANO:
x x x           x x x          x x x
Q: For how long have you known Reynaldo Bago?
A: Since (sic) two (2) years, sir. A: The same Mr. Reynaldo Bago's signature.

Q: What is the specific function of Reynaldo Bago in your company? ATTY. CAPISTRANO:

A: Reynaldo Bago is in charge of Cutting Department.
Q: As a Material Controller, do you have any supervision of (sic)
Reynaldo Bago?
A: Yes, sir.
Q: By the way, at the bottom portion of Exhibits "A", "B" and "C",
there appears a signature, can you go over this (sic) and tell the
Honorable Court, whose signatures stated (sic) therein?
May I request, Your Honor, that the pointed portion of Exhibit "C", be
marked in evidence as Exhibit "C-2".
Q: Why do you know that these are the signature (sic) of Reynaldo
Bago?
A: Because I am in charge of Reynaldo Bago, and I know his
signature.
Q: If Reynaldo Bago is in Court, can you point to him?

A: This is a signature of Reynaldo Bago. INTERPRETER:

INTERPRETER: Witness is pointing to a person who identified himself as Reynaldo

Madrid Bago.
Witness is pointing to a signature on Exhibit "A".
ATTY. CAPISTRANO:
ATTY. CAPISTRANO:
Q: You said that this matter was reported to you by the OIC of the
Which I request, You Honor, to be marked as Exhibit "A-2". Security Guard, (sic) when this matter was reported to you, what step
or steps did you take, if any?
COURT:
A: I conducted an actual inventory and confronted Reynaldo Bago
and asked him where are (sic) the materials which is (sic) in
Mark it.
question.
ATTY. CAPISTRANO:
Q: You said that your (sic) conducted an actual inventory what was
your findings in your inventory?
Q: How about in Exhibit "B"?
A: According to my findings the materials did not reach the company.
A: The same it was the signature of Reynaldo Bago.
ATTY. HAMBON: (sic)
ATTY. CAPISTRANO:
Your Honor, may I request that [that] portion be stricken-off the
At this juncture, Your Honor, may I request that this portion be record.
marked as Exhibit "B-2".
COURT:
Q: How about Exhibit "C"?
The witness may answer, place that on record.
 ATTY. CAPISTRANO: A: The items.

When you said that according to your findings that (sic) the materials Q: Did you find these items for the 3rd receipt?
did not arrive, to what particular receipt are (sic) you referring to?
A: None, Sir.
This one, sir.
x x x           x x x          x x x
INTERPRETER:
Q: Now according to you, on April 21, 1992 you were at AZKCON
Witness is pointing to Exhibit "C". Metal Industries?

Q: You said that you confronted Reynaldo Bago, what transpired A: Yes Sir.
during your confrontation?
Q: And your attention was invited on the first two receipts, containing
A: He told me that the material arrived long before but when I the Cold Rolled Materials?
checked it out, I found out that it didn't arrived" (sic).
ATTY. CAPISTRANO:
Prosecution witness Aflor Ong testified as follows: 43
Misleading your Honor.
Q: And would you kindly inform this Honorable Court whether there is
any unusual incident that transpired on April 21, 1992 as you were COURT:
then performing your duty as chief security guard.
Three (3) Receipts.
A: About the receipts of materials delivered, Sir.
Q: Your attention was invited by 3 receipts.
Q: Would you kindly elaborate on that?
A: After the guard reported it to me, Sir.
A: There were 3 receipts but only two (2) items were delivered.
Q: Who was this guard who reports (sic) to you?
Q: And how did you come to know this?
ATTY. CAPISTRANO:
A: It was reported to me by the security guard on duty.
Already answered your Honor.
Q: And who was this security guard who reported the matter to you?
COURT:
A: Security guard Ruben Manangan, Sir.
Witness may answer.
Q: And when this matter was reported to you, what did you do, if you
did anything? A: Ruben Manangan.

A: I checked it also and after I checked, I reported it to William Hilo. Q: What time did he make the report?

Q: What precisely did you check?

A: Four to Five in the afternoon Sir. Q: After you inspected, what action did you take, because it was
reported to you by the security guard?
Q: And what was the report all about?
A: I reported it to Mr. William Hilo, the one in-charge of the
A: About two (2) cold rolled sheets, Sir. materials. 44

Q: What is it? The trial court correctly found that appellant was a trusted employee of
Azkcon. He was in-charge of overseeing the cutting of the materials at Power
Construction and ensuring their delivery to Azkcon. Due to this trust, he
A: Only two (2) cold rolled sheets were delivered, one is (sic)
succeeded in withdrawing from the said supplier the cold rolled sheets
missing.
covered by Exhibits "A" and "B" dated April 21, 1992 and Exhibit "C" (Invoice
No. 51111), dated March 23, 1992. Appellant signed these receipts to signify
Q: And, of course, the security guard showed to you the 3rd receipt that he obtained the materials from the supplier. However, only the materials
which did not cover the materials in the cargo truck? covered by Exhibits "A" and "B" were delivered to Azkcon on April 21, 1992.
Those covered by Exhibit "C" were not delivered. Significantly, the materials
ATTY. CAPISTRANO: procured on April 21, 1992 were delivered that same day, as shown by the
stamp marks on Exhibits "A" and "B". In contrast, the materials he took from
Misleading again, your Honor. the supplier on March 23, 1992 could not be found in the premises of Azkcon
and there was no evidence that he delivered them on said date or on any
COURT: other day thereafter. Inexplicably, appellant presented the third receipt
(Invoice No. 51111) dated March 23, 1992 for stamping only on April 21,
1992. The reasonable conclusion is that he asported the materials covered
Witness may answer.
by Exhibit "C".

A: Witness may answer (sic).

Clearly, all the elements of theft were established, to wit: (1) there was a
taking of personal property; (2) the property belongs to another; (3) the taking
Q: You are, of course, referring to Exhibit "C"? was without the consent of the owner; (4) the taking was done with intent to
gain; and (5) the taking was accomplished without violence or intimidation
A: Yes, Sir. against the person or force upon things. 45 As the theft was committed with
grave abuse of confidence, appellant is guilty of qualified theft.
Q: At the time the report was shown to you, did you inspect the
truck? Third. We now come to the correctness of the penalty imposed on appellant.

A: Yes, Sir. The trial court sentenced the appellant to suffer the penalty of reclusion
perpetua. In its Comment, the Office of the Solicitor General opined that the
Q: And you did not find actually the materials? penalty was erroneous. It noted that:

A: I did not find the material covering this Exhibit "C". The present case falls under Article 308, in relation to Article 309,
paragraph one (1) and Article 310 of the Revised Penal Code, for the
Q: Covering the 3rd receipt? purpose of determining the penalty to be imposed on appellant. . . . .

A: Yes, Sir. Since the lower court found that the value of the thing stolen was
P194,865.00, the penalty prescribed in this case, had it been a case
of simple theft, is imprisonment of 20 years corresponding
to reclusion temporal. Since the offense was committed with grave
abuse of confidence, then the prescribed penalty for qualified theft
proven in this case is death, which is the penalty next higher by two
degrees than the given penalty for simple theft above mentioned. In
which event, this case is subject further to the rules provided in
Article 74, in relation to Article 40 of the Revised Penal Code. They
provide:
Art. 74. Penalty higher than reclusion perpetua in certain
cases — In cases in which the law prescribes a penalty
higher than another given penalty, without specifically
designating the name of the former, if such higher penalty
should be that of death, the same penalty and the accessory
penalties of article 40, shall be considered as the next higher
penalty.
x x x           x x x          x x x
Art. 40. Death — Its accessory penalties — The death
penalty, when it is not executed by reason of commutation or
pardon, shall carry with it that of perpetual absolute
disqualification and that of civil interdiction during the thirty
years following the date of the sentence, unless such
accessory penalties have been expressly remitted in the
pardon.
Consequently, the penalty actually prescribed in this case for the
crime of qualified theft is twenty (20) years of reclusion temporal,
together with the accessory penalties of perpetual absolute
disqualification and that of civil interdiction during thirty (30) years
following the date of the sentence.
Since this case is subject to the Indeterminate Sentence Law, the
determination of the maximum and minimum ranges of the sentence
is governed by rules contained in the analogous case of People
v.  Pabalan, to wit:
Applying the mandate of the Indeterminate Sentence Law,
the maximum penalty shall therefore be taken from the
maximum period of said basic penalty in Article 315 as
augmented by the additional years of imprisonment, while
the minimum term of the indeterminate sentence shall be
within the range of the penalty next lower in degree to that
provided by law, without considering the incremental penalty
for the amounts in excess of P22,000.00. . . .
Based on the foregoing considerations, the penalty imposed on
appellant should fall within the minimum range of prision
correccional in its medium and maximum periods, with a duration of
two (2) years, four (4) months and (1) day to six (6) years, and
twenty (20) years of reclusion temporal with the accessory penalties
of death, as maximum. It is respectfully recommended that appellant
be sentenced to the penalty of six (6) years of  prision correccional as
minimum, to twenty (20) years of reclusion temporal with the
accessory penalties of death as maximum.
We disagree.
Art. 309 of the Revised Penal Code provides the penalty for simple theft. It
reads:
1. The penalty of  prision mayor in its minimum and medium periods,
if the value of the thing stolen is more than 12,000 pesos but does
not exceed 22,000 pesos; but if the value of the thing stolen exceed
the latter amount, the penalty shall be the maximum period of the
one prescribed in this paragraph, and one year for each additional
ten thousand pesos, but the total of the penalty which may be
imposed shall not exceed twenty years. In such cases, and in
connection with the accessory penalties which may be imposed and
for the purpose of the other provisions of this Code, the penalty shall
be termed  prision mayor or reclusion temporal, as the case may be.
The value of the property stolen by appellant was P194,448.00. Under Article
309, the basic penalty is  prision mayor in its minimum and medium periods to
be imposed in the maximum period since the value of the stolen goods
exceeded P22,000.00. To determine the additional years of imprisonment
prescribed in Article 309 (1), we have to deduct the amount of P22,000.00,
thus leaving the amount of P172,448.00. Next, the net amount should be
divided by P10,000.00, disregarding any amount below P10,000.00. Thus,
seventeen (17) years must be added to the basic penalty of the maximum
period of prision mayor minimum and medium periods. 46 The penalty
of prision mayor in its minimum and medium periods has a range of six years
(6) and one (1) day to ten (10) years. Its maximum period is eight (8) years,
eight (8) months and one (1) day to ten (10) years, and the incremental
penalty is seventeen (17) years. Had appellant committed simple theft, the
penalty should have been twenty years of reclusion temporal, the maximum
penalty allowable under Article 309, subject to the Indeterminate Sentence
Law.
Considering that the theft is qualified by grave abuse of confidence, the
penalty is two degrees higher than that specified under Article 309. 47 In the
case of People vs. Cañales, 48 we were confronted with the same issue of
determining how the penalty under Article 309 should be increased by two
degrees. In said case, we adopted the disquisition of the appellate court,
thus:
. . . . Under Article 25 of the Revised Penal Code, two degrees higher
than reclusion temporal is death. This is likewise conformable with
Article 74 of the Revised Penal Code, which provides that:
Art. 74. Penalty higher than reclusion perpetua in certain
cases. — In cases in which the law prescribes a penalty
higher than another given penalty, without specifically
designating the name of the former, if such higher penalty
should be that of death, the same penalty and the accessory
penalties of Article 40, shall be considered as the next higher
penalty. . . . .
The provision however, proscribes the imposition of the death
penalty resulting from the graduation of the penalty. It bears
stressing that Article 74 of the Revised Penal Code was based on
Article 93 of the old Penal Code which provided that if the penalty
is reclusion perpetua, the next higher penalty would be the same
penalty but the convict in such cases cannot be pardoned until forty
years had elapsed (Aquino, Comments on the Revised Penal Code,
1987 ed., Volume 1, page 709).
But there is a pervading divergence of opinion among commentators
of the Revised Penal Code as to what the higher penalty referred to
in Article 74 of the Revised Penal Code should be. Some authors are
of the view that the higher penalty would be reclusion perpetua with
the accessory penalties for the said penalty. But then, under Article
74 of the Revised Penal Code, the accessory penalties under Article
40 of the Revised Penal Code should be imposed. Still others, like
former Senator Ambrosio Padilla, are of the view that the higher
penalty is reclusion perpetua with the accessory penalties of death
under Article 40 of the Revised Penal Code if the death penalty is
commuted. But then, the accessory penalty under Article 40 of the
Revised Penal Code is perpetual absolute disqualification and civil
interdiction during thirty (30) years following the date of sentence,
whereas, the accessory penalty of reclusion perpetua under Article
41 of the Revised Penal Code is civil interdiction for life and
perpetual absolute disqualification. As aptly observed by former
Chief Justice Ramon C. Aquino, there seems to be an absurdity
under the latter view (Aquino, Comments on the Revised Penal
Code, supra). On the other hand, Justice Albert is of the firm view
that:
The Code meant to say here that the judgment should
provide that the convict should not be given the benefit of the
provisions of Article 27 until forty years should have elapsed;
otherwise, there could be no difference at all
between reclusion perpetua when imposed as a penalty next
higher in degree and when it is imposed as the penalty fixed
by law. (Albert, Comments on the Revised Penal Code, 1932
edition, page 240).
to which Justice Luis Reyes subscribes (Reyes, Comments on the
Revised Penal Code, 1981 ed., Vol. 1, page 746). Former Chief
Justice Ramon C. Aquino likewise is in accord with the opinion of
Justice Albert.
x x x           x x x          x x x
Justice Albert believes that the "penalty higher
than reclusion perpetua" is reclusion perpetua for forty years
with the accessory penalties of death under Art. 40.
Otherwise, as he said "there could be no difference at all
between reclusion perpetua, when imposed as the penalty
next higher in degree and when it is imposed as the penalty
fixed by law." This opinion is supported by Art. 93 of the old
Penal Code from which Art. 74 was taken. Art. 93 provides
that if the given penalty is cadena perpetua or reclusion
perpetua, the next higher penalty shall be these same
penalties but the convict in such case cannot be pardoned
"until forty years have elapsed. (Aquino, Comments on the
Revised Penal Code, 1987 ed., Volume 1, pages 708-709)."
We are likewise in accord with the opinion of Justice Albert as a
logical explanation of Article 74 of the Revised Penal Code.
Consequently, Cañales should be meted the penalty of Reclusion
Perpetua for Forty Years with the accessory penalties of death under
Article 40 of the Revised Penal Code. In fine, Cañales is not entitled
to pardon before the lapse of the forty-year period (Reyes,
Comments on the Revised Penal Code, 1977 ed., Volume 1, page
747).1âwphi1
This reiterated our ruling in People vs.  Reyes, 49 where we held:
In the crime of theft, if the value of the thing stolen exceeds
P22,000.00, the penalty shall be  prision mayor in its maximum
period and one year for each additional P10,000.00, but the total
penalty shall not exceed twenty years or reclusion temporal.
 However, if that crime of theft is attended by any of the qualifying
circumstances which convert the taking into qualified theft, the
penalty next higher by two degrees shall be imposed, that is, at
least, reclusion perpetua. 50

In accord with the foregoing, we hold that appellant was correctly meted the
penalty of reclusion perpetua, with the accessory penalties of death under
Article 40 of the Revised Penal Code.

Fourth. As regards the grant of actual damages, the rule is that actual
damages cannot be allowed unless supported by evidence in the
record. 51 William Hilo testified that the value of the missing cold rolled sheets
was P192,000.00 and the incurred cutting cost was P2,448.00, for a total
value of P194,448.00. 52 Thus, the award for actual damages must be
reduced by P417.00.

IN VIEW WHEREOF, the April 26, 1995 Decision of the Regional Trial Court
of Quezon City (Branch 92), in Criminal Case No. Q-92-30833, as amended
by the Order dated August 15, 1995, is AFFIRMED subject to the
modification that the actual damages is reduced to P194,448.00.

SO ORDERED.

Davide, Jr., C.J., Kapunan, Pardo and Ynares-Santiago, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-26222             July 21, 1967

THE PEOPLE OF THE PHILIPPINES, petitioner,
vs.
HONORABLE JUDGE HERNANDO PINEDA of the Court of First Instance
of Lanao del Norte;
and TOMAS NARBASA, TAMBAC ALINDO and RUFINO
BORRES, respondents.
Dominador L. Padilla for petitioner.
Narbasa, Tambac Alindo and Borres for respondents.
SANCHEZ, J.:
Respondents Tomas Narbasa, Tambac Alindo and Rufino Borres stand
indicted before the Court of First Instance of Lanao del Norte, as principals,
in five (5) separate cases, four for murder, viz:
Criminal Case 1246 — murder of Neceforo Mendoza;
Criminal Case 1247 — murder of Epifania Mendoza;
Criminal Case 1248 — frustrated murder of Valeriana Bontilao de
Mendoza;
Criminal Case 1249 — murder of Teofilo Mendoza;
Criminal Case 1250 — murder of Marcelo Mendoza.
The five informations were planted upon facts gathered by the prosecuting
attorney from his investigation. Of course, the truth of these facts is yet to be
tested in the crucible of a full-dress trial on the merits.
The indictments are bottomed upon the following alleged pivotal facts:
On the night of July 29, 1965, the occupants of the home of the spouses
Teofilo Mendoza and Valeriana Bontilao de Mendoza in Pugaan City of
Iligan, were asleep. It was then that guns (rifle, caliber 22)
and paliuntod  (homemade gun) were fired in rapid succession from outside
the house. Teofilo Mendoza fell dead. Thereafter, defendants below
destroyed the door of the house, entered therein, and let loose several shots
killing Neceforo Mendoza, — all minor children of the couple — and
wounding Valeriana Bontilao de Mendoza.
Two of the three defendants in the five criminal cases heretofore listed —
Tomas Narbasa and Tambak Alindo — moved for a consolidation thereof
"into one (1) criminal case." Their plea is that "said cases arose out of the
same incident and motivated by one impulse."
Giving the nod to defendants' claim, respondent Judge, in an order dated
May 13, 1966, directed the City Fiscal to unify all the five criminal cases, and
to file one single information in Case 1246. He also ordered that the other
four cases, Nos. 1247, 1248, 1249 and 1250 "be dropped from the docket."
The City Fiscal balked at the foregoing order, sought reconsideration thereof,
upon the ground that "more than one gun was used, more than one shot was
fired and more than one victim was killed." The defense opposed.
On May 31, 1966, respondent Judge denied the motion to reconsider. He
took the position that the acts complained of "stemmed out of a series of
continuing acts on the part of the accused, not by different and separate sets
of shots, moved by one impulse and should therefore be treated as one
crime though the series of shots killed more than one victim;" and that only
one information for multiple murder should be filed, to obviate the necessity
of trying five cases instead of one."
Primarily to annul respondent Judge's orders of May 13, 1966 and May 31,
1966, as having been issued without or in excess of jurisdiction and/or with
grave abuse of discretion, the People came to this Court on certiorari with a
prayer for a writ of preliminary injunction, and for other reliefs.
This Court, on July 1, 1966, issued the cease-and-desist order prayed for.
The question here presented, simply is this: Should there be one information,
either for the complex crime of murder and frustrated murder or for the
complex crime of robbery with multiple homicide and frustrated homicide? Or,
should the five indictments remain as they are?
1. The case before us calls into question the applicability of Article 48 of the
Revised Penal Code, as amended, which reads:
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.
Read as it should be, Article 48 provides for two classes of crimes where a
single penalty is to be imposed: first, where a single act constitutes two or
more grave or less grave felonies (delito compuesto); and, second, when an
offense is a necessary means for committing the other (delito complejo).1
Best exemplified by the first of the two cases is where one shot from a gun
results in the death of two or more persons. Jurisprudence teaches that, in
this factual setting, the complex crime defined in the first part of Article 48
finds application.2 A similar rule obtains where one stabbed another and the
weapon pierced the latter's body through and wounded another. The first
died instantaneously; the second, seven days later. This Court convicted the
assailant of double murder.3 So where a person plants a bomb in an airplane
and the bomb explodes, with the result that a number of persons are killed,
that single act again produces a complex crime.4
A different rule governs where separate and distinct acts result in a number
killed. Deeply rooted is the doctrine that when various victims expire from
separate shots, such acts constitute separate and distinct crimes. 5 Thus,
where the six defendants, with others (armed with pistols, carbines and also
a submachine gun and Garand rifles), fired volleys into a house killing eleven
and wounding several others, each of the said accused is "guilty of as many
crimes of murder as there were deaths (eleven). 6 Again, eleven persons were
indicted for quadruple murder — with the use of bolos, a pistol, a barbed
arrow and a piece of bamboo — of a man, his common-law wife, and their
two children in cold blood. The accused were found guilty by the trial court of
such offense. This Court, in reversing this ruling below, held that "[t]he four
victims were not killed by a single act but by various acts committed on
different occasions and by different parties"; that such acts "may not be
regarded as constituting one single crime"; and that "[t]hey should be held as
separate and distinct crimes."7 And a third. At the commencement exercises
of an elementary school, "a shot suddenly rang out" followed by a "series of
shots" — from a pistol. Two persons lay dead and a third seriously wounded
but who later on also died. This Court there ruled that there were "three
distinct and separate murders" committed by appellant Juan Mones. 8 And
finally, in People vs. Gatbunton, L-2435, May 10, 1950, the spouses Mariano
Sebastian and Maxima Capule — who were asleep — were killed by one
burst of machinegun fire; and then, by a second burst of machinegun fire, two
of the couple's children — also asleep — were killed. The accused, Tomas
Gatbunton, was found guilty by the trial court of quadruple murder. On
appeal, this Court declared that "appellant must be declared guilty of four
murders."9
The present ease is to be differentiated from People vs. Lawas, L-7618-20,
June 30, 1955. There, on a single occasion, about fifty Maranaos were killed
by a group of home guards. It was held that there was only one complex
crime. In that case, however, there was no conspiracy to perpetuate the
killing. In the case at bar, defendants performed several acts. And the
informations charge conspiracy amongst them. Needless to state, the act of
one is the act of all.10 Not material here, therefore is the finding in Lawas  that
"it is impossible to ascertain the individual deaths caused by each and
everyone" of the accused. It is to be borne in mind, at this point, that apply
the first half of Article 48, heretofore quoted, there must be singularity of
criminal act; singularity of criminal impulse is not written into the law.11
The respondent Judge reasons out in his order of May 31, 1966 that
consolidation of the five cases into one would have the salutary effect of
obviating the necessity of trying five cases instead of one. To save time,
indeed, is laudable. Nonetheless, the statute confers upon the trial judge the
power to try these cases jointly, such that the fear entertained by respondent
Judge could easily be remedied.12
Upon the facts and the law, we hold that the City Fiscal of Iligan City correctly
presented the five separate informations — four for murder and one for
frustrated murder.
2. We have not overlooked the suggestion in the record that, because of an
affidavit of one of the witnesses, possibility exists that the real intent of the
culprits was to commit robbery, and that the acts constituting murders and
frustrated murder complained of were committed in pursuance thereof. If
true, this would bring the case within the coverage of the second portion of
Article 48, which treats as a complex crime a case where an offense is a
necessary means for committing the other.
A rule of presumption long familiar, however, is that official duty has been
regularly performed.13 If the Fiscal has not seen fit to give weight to said
affidavit wherein it is alleged that certain personal properties (transistor radio
and money) were taken away by the culprits after the shooting, we are not to
jettison the prosecutor's opinion thereon. The Fiscal could have had reasons
for his act. For one thing, there is the grave problem of proving the elements
of that offense — robbery. For another, the act could have been but a blind to
cover up the real intent to kill. Appropriately to be noted here is that all the
informations charged evident premeditation. With ponderables and
imponderables, we are reluctant to hazard a guess as to the reasons for the
Fiscal's action. We are not now to say that, on this point, the Fiscal has
abused his discretion. A prosecuting attorney, by the nature of his office, is
under no compulsion to file a particular criminal information where he is not
convinced that he has evidence to prop up the averments thereof, or that the
evidence at hand points to a different conclusion. This is not to discount the
possibility of the commission of abuses on the part of the prosecutor. But we
must have to recognize that a prosecuting attorney should not be unduly
compelled to work against his conviction. In case of doubt, we should give
him the benefit thereof. A contrary rule may result in our courts being
unnecessarily swamped with unmeritorious cases. Worse still, a criminal
suspect's right to due process — the sporting idea of fair play — may be
transgressed. So it is, that in People vs. Sope 75 Phil. 810, 815, this Court
made the pronouncement that "[i]t is very logical that the prosecuting
attorney, being the one charged with the prosecution of offenses, should
determine the information to be filed and cannot be controlled by the off
ended party."14

3. The impact of respondent Judge's orders is that his judgment is to be

substituted for that of the prosecutor's on the matter of what crime is to be
filed in court. The question of instituting a criminal charge is one addressed to
the sound discretion of the investigating Fiscal. The information he lodges in
court must have to be supported by facts brought about by an inquiry made
by him. It stands to reason then to say that in a clash of views between the
judge who did not investigate and the fiscal who did, or between the fiscal
and the offended party or the defendant, those of the Fiscal's should normally
prevail. In this regard, he cannot ordinarily be subject to dictation. We are not
to be understood as saying that criminal prosecution may not be blocked in
exceptional cases. A relief in equity "may be availed of to stop it purported
enforcement of a criminal law where it is necessary (a) for the orderly
administration of justice; (b) to prevent the use of the strong arm of the law in
an oppressive and vindictive manner; (c) to avoid multiplicity of actions; (d) to
afford adequate protection to constitutional rights; and (e) in proper cases,
because the statute relied upon is unconstitutional or was 'held invalid.'
"15 Nothing in the record would as much as intimate that the present case fits
into any of the situations just recited.1äwphï1.ñët

And at this distance and in the absence of any compelling fact or

circumstance, we are loathe to tag the City Fiscal of Iligan City with abuse of
discretion in filing separate cases for murder and frustrated murder, instead
of a single case for the complex crime of robbery with homicide and
frustrated homicide under the provisions of Article 294 (1) of the Revised
Penal Code or, for that matter, for multiple murder and frustrated murder. We
state that, here, the Fiscal's discretion should not be controlled.

Upon the record as it stands, the writ of certiorari  prayed for is hereby
granted; the orders of respondent Judge of May 13, 1965 and May 31, 1966
are hereby set and declared null and void, and, in consequence, the writ of
Republic of the Philippines
preliminary injunction heretofore issued is made permanent insofar as it
SUPREME COURT
stops enforcement of the said orders; and the respondent Judge, or whoever
Manila
takes his place, is hereby directed to reinstate Criminal Cases 1246, 1247,
1248, 1249 and 1250 as they were commenced, and to take steps towards
the final determination thereof. FIRST DIVISION

Costs against respondents Tomas Narbasa, Tambac Alindo and Rutino  

Borres. So ordered.
G.R. Nos. 100382-100385 March 19, 1997
Reyes, J.B.L., Makalintal, Bengzon J.P., Zaldivar, Castro, Angeles and
Fernando, JJ., concur.
Concepcion, C.J. and Dizon, J., took no part.
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
MARIO TABACO, accused-appellant.
HERMOSISIMA, JR., J.:
In four related informations, Mario Tabaco was charged with four
counts of Murder for shooting to death on March 22, 1987 Capt. Oscar
Tabulog (Criminal Case No. 10-259), Ex-Mayor Jorge Arreola (Criminal
Case No. 10-270), Felicito Rigunan (Criminal Case No. 10-284) and Pat.
Romeo Regunton (Criminal Case No. 10-317). Except for the names of
the victims, the informations in these four (4) cases identically read:
That on or about March 22, 1987, in the Municipality of
Aparri, Province of Cagayan, and within the jurisdiction
of this Honorable Court, the said accused Mario Tabaco,
armed with a gun, with intent to kill, with evident
premeditation and with treachery, did then and there
wilfully, unlawfully and feloniously assault, attack and
shoot one [name], inflicting upon him several wounds
which caused his death.
Contrary to Law. 1
In Criminal Case No. 10-316, accused was charged in the following
information with the complex crime of Homicide and Frustrated Homicide for
shooting to death Jorge Siriban, Jr. and the wounding of Sgt. Benito
Raquepo:
That on or about March 22, 1987, in the municipality of
Aparri, province of Cagayan, and within the jurisdiction of
this Honorable Court, the said accused, Mario Tabaco,
armed with a gun, with intent to kill, did then and there
wilfully, unlawfully and feloniously assault, attack and
shoot Jorge Siriban, Jr., and S/Sgt. Benito Raquepo,
inflicting upon them wounds on their bodies, which wounds
sustained by Jorge Siriban, Jr., caused his death.
That the accused had performed all the acts of execution
(with respect to the victim Sgt. Benito Raquepo) which would
have produced the crime of Homicide as a consequence but
which nevertheless, did not produce it by reason of causes
independent of his own will.2
All cases were consolidated before Branch 10 of the Regional Trial Court of
Aparri, Cagayan.
The mass of evidence for the prosecution, as found by the trial court, is as
follows:
In the evening of March 22, 1987, the 117th PC stationed at
Aparri, Cagayan, under then Lt. James Andres Melad,
sponsored a cock derby, under the name of Jose Ting, at the
Octagon Cockpit Arena located at Aparri, Cagayan.
This being so, peace officers in uniform with long firearms
were assigned as guards to maintain peace and order at the
cockpit arena namely: (1) Sgt. Benito Raquepo; (2) CIS
Roque P. Datugan, both from the 117th PC and (3) Pat.
Andres Semana, INP, Aparri, Cagayan. Accused Mario
Tabaco who was in civilian clothes claims to have been also
assigned by his Commanding Officer of 117th PC, to verify
the presence of NPAs and assist in the protection of VIPs in
the cockpit arena, bringing with him his M-14 issued firearm.
Other peace officers who came to participate were: (1)
Policeman Mariano Retreta of INP, Buguey, Cagayan, who
arrived with the deceased Jorge Siriban and Licerio
Antiporda, Jr., Licerio Antiporda II; (2) Sgt. Rogelio Ferrer of
117th PC Company; (3) Policeman Romeo Regunton
(deceased) who was also armed, arrived in company with
the deceased Ex-Mayor Arreola; (4) Fireman Rogelio
Guimmayen, INP Buguey; (5) Pat. Barba; and (6) CIC PC
Paragas.
At about nine (9) o'clock in the evening of same date, the
group of the late Mayor Jorge Arreola of Buguey, Cagayan,
arrived at the cockpit arena. His companions were (1)
Antonio Villasin; (2) Rosario Peneyra; (3) victim Loreto Pita,
Jr. and/or five (5) of them including the Mayor. They
occupied and were (4th row) north western part cockpit-gate.
Others seated with the Mayor were: (1) the late Capt. Oscar
Tabulog; (2) the late Pat. Romeo Regunton, who was at the
back of the mayor; (3) the late Felicito Rigunan. The accused
CIC Tabaco was seated on the arm of the bench situated at
the lower portion of the arena about more than three (3)
meters away, (infront and a little bit in the west), from the
place where the late Mayor and his group were seated (at
the 4th row of seats upper portion). During the ocular
 inspection conducted, the Court noticed the distance to be
more than three (3) meters, and/or probably 4-5 meters.
At about ten (10) o'clock 1987, while the accused Mario
Tabaco was seated as described above, he suddenly without
warning or provocation, shot the late mayor Jorge Arreola,
with his M-14 rifle, followed by several successive burst of
gunfire, resulting in the shooting to death of the late Mayor
Arreola, Capt. Oscar Tabulog, Felicito Rigunan and Pat.
Romeo Regunton, although the latter managed to run
passing through the western gate near the gaffers cage but
was chased by accused Tabaco. Regunton was later found
dead inside the canteen of Mrs. Amparo Go inside the
Octagon cockpit arena.
Pat. Mariano Retreta of INP Buguey, who was then at the
Co's canteen, saw the accused going out rushing from the
cockpit arena, at a distance of one meter. Pat. Retreta is a
relative and neighbor of the accused Tabaco in Buguey,
Cagayan. He tried to pacify Tabaco telling him "what is that
that happened again Mario." Meanwhile, Sgt. Benito
Raquepo of 117th PC, and one of those assigned to
maintain peace and order at the Octagon cockpit arena, who
was at the canteen taking snacks, heard five (5) successive
gun reports coming from inside the cockpit arena. In a little
while, he saw the accused Tabaco coming from inside the
cockpit arena. Raquepo advised Tabaco — "Mario relax ka
lang" — "Mario keep calm." They stood face to face holding
their rifles and when Tabaco pointed his gun towards Sgt.
Raquepo, Pat. Retreta grappled for the possession of the
gun to disarm Tabaco, and in the process, the gun went off
hitting Sgt. Raquepo and also the late Jorge Siriban who
happened to be near Raquepo. Siriban died on the spot
while Raquepo survived his wounds on his legs due to
adequate medical treatment.
There were other persons injured that evening namely: (1)
Antonio Chan — injured on his right foot; (2) Salvador
Berbano — injured on his right forearm and on his right
abdomen and (3) Rosario Peneyra on his Face and right
shoulder. But, the three, did not file their complaints. 3
Upon the other hand, the evidence for the defense as stated in the Brief for
the Accused-appellant is as follows:
Ordered by his commanding officer in the 117th PC
Company to assist in the maintenance of peace and order at
the Octagon Cockpit Arena located at Talungan, Aparri,
Cagayan on March 22, 1987, accused Mario Tabaco with his
officially issued M-14 rifle and with the basic load of
ammunition went to the Octagon Cockpit arena on March 22,
1987 in compliance to the orders of a superior officer arriving
thereat at about 12:00 o'clock noon, more or less. He directly
went inside the cockpit arena to make some observations
and found out that there were several persons inside the
said cockpit who were in possession of firearms, some short
and some long, and were seen in different places and/or
corners of the cockpit. Accused did not bother to verify as to
why the said persons were allowed to carry their firearms
because of his impressions that if they did not have the
authority, the guards of the main gate of the cockpit would
surly have confiscated the same from them. It was his belief
then that they may have come from other agencies of the
government, assigned to help in the maintenance of peace
and order in the cockpit. Accused thus seated himself at the
lowermost seat (first step) of the slanted bleachers of the
Octagon Cockpit arena on March 22, 1987.
At about 9:00 o'clock that very night of March 22, 1987, while
accused was seated at the lowermost seat of the slanted
bleachers of the Octagon Cockpit arena, he heard a gun
report fired atop his head. Having been officially assigned to
help in the maintenance of peace and order in the cockpit
and that his presence must be known, his immediate
reaction upon hearing the gun report was to fire a warning
shot in the air and directed to the ceiling and/or roof of the
Octagon cockpit arena. After firing a warning shot, his
warning was answered by burst of gun fire coming from
different directions inside the cockpit arena, for which
reason, he forced to leave and rush outside, holding his M-
14 rifle with the muzzle pointed downwards. As he (accused)
rushed towards the main gate of the cockpit arena, Mariano
Retreta and Sgt. Benito Raquepo saw him and who told him,
(accused) to relax lang. Accused testified that when Mariano
Retreta and Sgt. Benito Raquepo told him to relax lang, he
all the time thought that the gun reports fired inside the
cockpit arena was nothing to said persons. Accused
however, insisted to go out, but in so doing, Mariano Retreta
pressed the gun which he was holding downwards and
grabbed said gun from accused. As the gun was pressed by
Mariano Retreta, said gun went off, hitting Sgt. Benito
 Raquepo and the death of Jorge Siriban, Jr. That because of
such incident, accused had to run away, out of fear to Sgt.
Benito Raquepo and the family of Jorge Siriban who may lay
the blame on him. The following morning, accused
surrendered to the police authorities of Lallo, Cagayan, who
happened to pass by, not on account of the death of Ex-
Mayor Jorge Arreola, Capt. Oscar Tabulog, Felicito Rigunan
and Oscar Regunton which he did not know at the time he
surrendered, but on account of the death of Jorge Siriban, Jr.
and the injury sustained by Sgt. Benito Raquepo.4
After trial, the court a quo, in a joint decision dated January 14, 1991, found
accused-appellant guilty as charged on all counts. In giving credence to the
version of the prosecution over that of accused-appellant, it found that:
From the evidence adduced, it is easily discernible that the
prosecution and defense cannot agree on what actually
transpired that night of March 22, 1987, at the Octagon
Cockpit Arena, Aparri, Cagayan leading to the shooting to
death of subject victims. For, while the prosecution maintains
that it was the accused Mario Tabaco who shot the victims,
the defense insists that he is not the assailant, but somebody
else or others, since the accused merely fired a warning shot
upwards the roof of the cockpit arena.
In fine, the Court is called upon to resolve the issue of
credibility versions. "Where there are directly conflicting
versions of the same incident, the Court, in its search for the
truth, perforce has to look for some facts and circumstances
which can be used as valuable tools in evaluating the
probability or improbability of a testimony for after all, the
element of probability is always involved in weighing
testimonial evidence. (Carolina Industries, Inc. vs. CMS
Stock Brokerage, Inc., et al., L-46908, May 17, 1980, 97
SCRA 734; Lacsan vs. Court of Appeals, et al., L-46485,
November 21, 1979, 94 SCRA 461, both citing the case of
People vs. Boholst Caballero, L-2349, November 25, 1974,
61 SCRA 180).
Towards this end, the prosecution presented three (3)
eyewitnesses, namely: Antonio Villasin, Rosario Peneyra
and Fireman Rogelio Guimmayen in the shooting to death of
the deceased victims, Ex-Mayor Jorge Arreola, Capt. Oscar
Tabulog, Romeo Regunton and Felicito Rigunan. Also, the
prosecution presented Sgt. Benito Raquepo, Pat. Mariano
Retreta and PC Sgt. Rogelio Ferrer, and three (3)
eyewitnesses in the shooting to death of Jorge Siriban and
the wounding of Sgt. Raquepo. So too, the prosecution
presented PC Sgt. Antonio Domingo, Pat. Andres Semana,
PC Sgt. Jose Algeria and Pat. Merlin Bautista, as
corroborative witnesses in both situational cases/incidents.
As well stated in the above findings of facts, prosecution
witnesses Antonio Villasin and Rosario Peneyra actually saw
the accused Mario Tabaco stood up from his seat at the
lower front row and in port arm position directed his M-14
rifle towards the place of the late Mayor Arreola, and his
group at the 4th row upper portion of the bleachers and fired
three successive automatic gun shots that felled Mayor
Jorge Arreola, Capt. Oscar Tabulog, Pat. Romeo Regunton
and one Felicito Rigunan. This was corroborated by
prosecution witness Fireman Rogelio Guimmayen who was
then ten (10) meters away from the accused, which was not
far, considering that the cockpit arena was well lighted at that
time.
Not only that, immediately after the gun burst of automatic
fire, the accused was seen coming out rushing from inside
the cockpit arena by INP Pat. Mariano Retreta and PC Sgt.
Raquepo, the former being a relative and neighbor, pacified
accused Tabaco, telling — "what is that happened again
Mario," while the latter told him — "Mario relax ka lang keep
calm." After which Mariano Retreta grappled for the
possession of the gun assisted by PC Sgt. Rogelio Ferrer
when Tabaco refused to stop. Sgt. Ferrer got the gun M-14
and surrendered it to his Commanding Officer, as
corroborated by Sgt. Antonio Domingo, while in the process
of disarming the accused Mario Tabaco, when the gun went
of, hitting the deceased victim Jorge Siriban and Sgt.
Raquepo. 5
The accused admitted that the M-14 rifle which he brought with him to the
cockpit arena was heavily loaded, but when the gun was taken from his
possession by Pat. Retreta and PC Sgt. Ferrer, the gun's magazine was
already empty.
The court a quo said further:
ATTY. VILLENA:
Q: When you took that M-14 from the
accused, do you remember if it had a
magazine that time?
A: Yes, sir with magazine.
Q: Do you have the magazine now?
A: It is with 117th PC Company, sir.
Q: After taking that M-14 from the accused,
did you examine the rifle?
A: Yes, sir, I examined it.
Q: Did you examine the magazine of that
rifle?
A: Yes, sir.
Q: Did you examine if there are live bullets?
A: No live bullets, sir. (TSN, direct
examination, Sgt. Ferrer, pp. 44-45, March
26, 1990 session, stenographer L. Tamayo).
Further, Sgt. Ferrer continued:
PROSECUTOR ATAL:
Q: You likewise mentioned in your direct
examination that when you surrendered this
gun, M-14, and this magazine, there were
no live ammunitions in the magazine?
A: There were two remaining bullets, sir.
Q: How many bullets in all?
A: Twenty, sir.
Q: You said you heard first seven gun
reports?
A: Yes, sir I heard seven gun reports. (TSN,
continuation of direct examination, Sgt.
Ferrer, May 14, 1990 session, Stenographer
L. Tamayo).
MORE, there is evidence that empty/spent
shells of bullets were found inside the
cockpit arena (Exh. "R" & "R-l", pp. 157-158,
record).
ATTY. ARRIOLA:
Q: Showing to you Exh. "R", do you know
whose picture is this?
A: Picture of spent shells.
Q: How about Exh. "R-l", do you know what
is this?
A: The same, sir spent shells. (TSN, PC/CIS
Sgt. Investigator Jose Algeria, p. 29, Oct. 1,
1990 session, Stenographer L. Tamayo).
Finally, another circumstance which maybe considered as
adverse against the accused, is the fact that he was really
arrested and not that he voluntarily surrendered as
appearing in the INP Lallo Police Blotter, as testified to by
Pat. Melin Bautista (Exh. "S", p. 188, record).
Furthermore, it appears that the same accused Mario
Tabaco, has still a pending case for murder before Branch 6,
of this Court. (Exh. "T", p. 187, record).
The Court is impressed with the testimonies of the three
prosecution eyewitnesses namely: Antonio Villasin, Rosario
Peneyra and INP Fireman Rogelio Guimmayen who narrated
their versions of the incident with ring of truth, which are both
clear and convincing, in regard to the shooting to death by
accused Mario Tabaco of the deceased victims Ex-Mayor
Jorge Arreola (Crim. Case No. 10-270), Capt. Oscar Tabulog
(Crim. Case No. 1259), Pat Romeo Regunton (Crim. Case
No. 10-317) and the late Felicito Rigunan (Crim. Case No.
10-284).
Such positive testimonies were corroborated by the
testimonies of PC Sgt. Raquepo, PC Sgt. Ferrer and Pat.
Mariano Retreta, who saw the accused rushing outside the
cockpit arena holding his M-14 rifle, immediately after the
burst of successive and automatic gunfire inside the cockpit
arena. Although they have not seen the accused shoot the
four victims (Arreola, Tabulog, Rigunan and Regunton), yet
their corroborative testimonies constitute sufficient
combination of all circumstances, so as to produce a
conviction of guilt beyond reasonable doubt. (People vs.
Pimentel, 147 SCRA 251; People vs. Trinidad, 162 SCRA
714), even as such circumstances proved reasonable leads
to the conclusion pointing to the accused Tabaco, to the
exclusion of all others, as the author of the crime. (People
vs. Magallanes, 147 SCRA 92; People vs. Macatana, 161
SCRA 235). And, in the face of all these circumstances, the
burden of proof to establish his innocence LIES on the
accused, as the ONUS PROBANDI from that moment is now
shifted to the accused. (Dulpo vs. Sandiganbayan, 150
SCRA 138). A resort to circumstantial evidence is in the very
nature of things, a necessity, and as crimes are usually
committed in secret and under conditions where
concealment is highly probable, and to require direct
testimony would in many cases result in freeing criminals
and would deny the proper protection of society. (People vs.
ROA, 167 SCRA 116).
As to the death of Jorge Siriban (Crim. Case No. 10-316)
and the wounding of Sgt. Raquepo, there is no adventure of
doubt, that accused Mario Tabaco was the author of the
crime charged and thus be held responsible for the same.
The evidence adduced in this case is overwhelming, coming
no less from accused's brothers PC personnel, who, aside
from their direct testimonies, are entitled to the settled rule
that they have regularly performed their official duty. (Section
5(M), Rule 131, Revised Rules of Court).
Accordingly, the Court is not impressed with the defense put
up by the accused, even as it does not inspire confidence,
hence, the same deserves no credence.
The accused contends that he merely fired his gun up
towards the roof, and that he could have not shot the four (4)
deceased victims with the group of Ex-Mayor Arreola
considering the elevation of the 4th step or row in the upper
bleachers of the cockpit arena, in relation to where the
accused was, the front row, in much lower elevation. The
accused further contends that he could not have shot
aforesaid victims, as maybe gleaned from the testimony of
Dr. Rivera, especially to wound No. 2, inflicted upon the body
of the late Mayor Arreola.
The Court believes otherwise. In the first place, the three (3)
eyewitnesses Antonio Villasin, Rosario Peneyra and INP
Fireman Rogelio Guimmayen, testified that they saw the
accused stood up from his seat and directed his gun M-14
towards the group of Ex-Mayor Arreola who were then at the
upper 4th row of cemented seats at the bleachers. They
could have been inaccurate of the distance of meters, as it
could have been around 5 meters from where the accused
stood up, which is a little bit west of the group of Ex-Mayor
Arreola, who were then facing south, face to face with the
accused. This is true and the same will jibe with the findings
of Dr. Rivera, where the gun shot wounds inflicted upon the
body of the late Capt. Tabulog, were on the left portion of his
forehead front to back (Wound No. 1); Wound No. 2, in his
left temple; Wound No. 3, below his right clavicle of his right
shoulder and Wound No. 4, on his left thigh downward.
In the case of the late Mayor Arreola his wounds are: Wound
No. 1, is on the left side of his head above the hairline;
Wound No. 2, right base of his neck and exited at the upper
shoulder base through and through. Wound No. 3, was on
his left lower abdomen and his lower back as exit for wound
Nos. 1 and 2, the relative position of the assailant and the
victim is face to face, so with Wound No. 3. For wound No. 2,
the point of entry is higher than the point of exit, but there is
a possibility that the victim Arreola, probably bent forward
and the bullet ricocheted.
It must be noted that the seats in the upper bleachers where
the group of the late Mayor stayed were all cemented
including their back rests and the bullets fired from the gun of
the accused must have rebounded or deflected from surface
to surface, on the cemented back rests and seats hitting
wound No. 2, on the body of the Mayor and the bodies of
Romeo Regunton and Felicito Rigunan. The bullets
RICOCHETED, at the place where the group of the Mayor
stayed. Anent the cemented railguard dividing the lower and
upper bleachers, the same is not too high so as to obviate
the possibility of hitting the group of the late Mayor Arreola,
especially as in this case, when the accused stood up from
 his seat and fired at his victims. Witness Rosario Peneyra
testified that his wound on his face and right abdomen must
have been caused by the debris of the said cemented
railguard which was hit by the bullets.
In the case of the death of Jorge Siriban, there is not much
dispute as the evidence adduced is overwhelming and even
the defense admits that Siriban died due to gunshot wounds
— inflicted upon him during the grappling of the subject gun
(Exh. "K").
The Court believes in the reliability and intrinsic credibility of
the prosecution witnesses, there being no competent
evidence presented for them to falsely testify against the
accused. There is no issue of motive, as the accused was
clearly and positively identified.
All told, the Court believes and so holds that herein accused
Mario Tabaco is the author/culprit in the shooting to death of
the deceased victims, Jorge Arreola, Oscar Tabulog, Felicito
Rigunan and Romeo Regunton, as well as the deceased
Jorge Siriban and the wounding of Benito Raquepo. 6
The dispositive part of the decision reads:
WHEREFORE, prescinding from the foregoing, and fortified
by the balm of clear judicial conscience, the Court finds the
accused Mario Tabaco guilty beyond reasonable doubt of all
the crimes charged against him:
1. In Criminal Cases Nos. (a) 10-259 (Oscar Tabulog); (b)
No. 10-270 (Jorge Arreola); (c) 10-284 (Felicito Rigunan);
and (d) 10-317 (Romeo Regunton), involving four (4) murder
victims, but declared to have been prosecuted in one
Information;  the same being a complex crime under Art.
248, Revised Penal Code, the accused Mario Tabaco is
sentenced to a single penalty of RECLUSION PERPETUA,
in its maximum period, with all the accessory penalties
provided for by law, and to pay the heirs of the deceased
victims — Oscar Tabulog, Felicito Rigunan and Romeo
Regunton, the amount of P50,000.00 each for a total of
P150,000.00 subject to the lien herein imposed for payment
of the appropriate docket fees if collected, without subsidiary
imprisonment in case of insolvency. However, in Criminal
Case No. 10-270, the accused Mario Tabaco is further
ordered to pay the heirs of the late Mayor Jorge Arreola, the
grand total amount of P633,500.00, by way of total civil
liability, subject to the lien herein imposed for payment of the
appropriate docket fees, in case of successful collection,
both without subsidiary imprisonment in case insolvency.
2 In Criminal Case No. 10-316 for Homicide with Frustrated
Homicide, the accused Mario Tabaco is sentenced to suffer
an indeterminate penalty ranging from, ten (10) years and
one (1) day Prision Mayor as MINIMUM, to Seventeen (17)
years, Four (4) months, one (1) day of RECLUSION
TEMPORAL as MAXIMUM, and to pay the heirs of the
deceased Jorge Siriban, the amount of P50,000.00, by way
of death indemnity, plus P30,000.00 to Sgt. Benito Raquepo,
by way of medical expenses incurred, subject to the lien
herein imposed for payment of the appropriate docket fees in
case of successful collection; both without subsidiary
imprisonment in case of insolvency.
3. The M-14 rifle (Exh. "K" and "K-2") the corpus delicti,
presently deposited with 117th PC Company, Aparri,
Cagayan, is hereby ordered forfeited in favor of the
government; Perforce, the Commanding Officer of the 117th
PC, Aparri, Cagayan, is peremptorily ordered to deposit to
the Acting Branch Clerk of Court of this court, the said M-14
rifle with magazines, for proper disposition in accordance
with law and the rules.
4. The accused to pay the costs.
5. In the service hereof, the accused shall be entitled to the
full length of time, he underwent preventive imprisonment
(March 23, 1987), provided he voluntarily agreed in writing to
abide by the same disciplinary rules imposed upon convicted
prisoners, otherwise, he shall be credited to only four-fifth
(4/5) thereof. (Art. 29, NCC; as amended by RA 6127, June
17, 1970; U.S. vs. Ortencio, 38 Phil. 341; People vs. Chavez,
126 SCRA 1).
SO ORDERED. 7 (Emphasis ours)
Notwithstanding the single penalty imposed by the trial court, accused still
interposed the present appeal on the following grounds:
 (1) The trial court erred in convicting Mario Tabaco of the
crime of murder in connection with the deaths of Oscar
Tibulog, Jorge Arreola, Felicito Rigunan, and Romeo
Regunton.
(2) The trial court erred in holding Mario Tabaco liable for
homicide on the death of Jorge Siriban and the injury
sustained by Benito Raquepo.
(3) The trial court erred in not giving credence to the
testimony of accused-appellant Tabaco.
The pivotal issue presented in this case is one of credibility. Time and again,
we have ruled that when the issue hinges on the credibility of witnesses vis-
a-vis the accused's denials, the trial court's findings with respect thereto are
generally not disturbed on appeal, 8 unless there appears in the record some
fact or circumstance of weight and influence which has been overlooked or
the significance of which has been misinterpreted. 9 The reason for the rule is
eloquently stated in the case of People vs. de Guzman, 10 thus:
In the resolution of factual issues, the court relies heavily on
the trial court for its evaluation of the witnesses and their
credibility. Having the opportunity to observe them on the
stand, the trial judge is able to detect that sometimes thin
line between fact and prevarication that will determine the
guilt or innocence of the accused. That line may not be
discernible from a mere reading of the impersonal record by
the reviewing court. The record will not reveal those tell-tale
signs that will affirm the truth or expose the contrivance, like
the angry flush of an insisted assertion or the sudden pallor
of a discovered lie or the tremulous mutter of a reluctant
answer or the forthright tone of a ready reply. The record will
not show if the eyes have darted in evasion or looked down
in confession or gazed steadily with a serenity that has
nothing to distort or conceal. The record will not show if tears
were shed in anger, or in shame, or in remembered pain, or
in feigned innocence. Only the judge trying the case can see
all these and on the basis of his observations arrive at an
informed and reasoned verdict. 11
After a careful examination of the records, we find no ground or reason to set
aside or disturb the trial court's assessment of credibility of the eyewitnesses
when they testified pointing to accused-appellant as the assailant in the
shooting of the group of Ex-Mayor Arreola and his companions.
1. Eyewitnesses Antonio Villasin and Rosario Peneyra, who were with the
group of Ex-Mayor Arreola on that fateful night of March 22, 1989,
categorically testified that it was accused-appellant, whom they positively
identified in court, who fired his M-14 Rifle at their direction hitting the ex-
mayor and his companions.
Villasin's testimony on this point is as follows:
COURT:
Q: You heard gun report, what can you say?
A: I saw that he was the one who made the
gun report, sir.
ATTY ARRIOLA:
Q: Who was that "he" you are referring to?
A: Mario Tabaco, sir. (p. 19, tsn, March 19,
1990)
Q: Why do you say that Mario Tabaco was
the one from whom those gun reports come
from?
A: Because he was the only person from
whom I saw a gun, sir.
Q: What did you do also upon hearing those
gun reports?
A: I had to seek shelter, sir.
Q: What happened to Ex-Mayor Arreola?
A: He was hit, sir.
PROSECUTOR MIGUEL:
Q: You said that the accused shot Ex-Mayor
Arreola, what kind of weapon did he use if
you know?
 A: M-14, sir. A: Like this. (The witness demonstrated that
the accused was standing on a forth (port)
x x x           x x x          x x x arm position).

Q: After the incident (precedent) have you x x x           x x x          x x x

come to learn what happened to Regunton?
Q: What did he do with the gun when you
A: I came to know that he was dead, sir. saw him?

Q: Was that all you gathered? A: He fired the gun, sir.

A: Also Capt. Tabulog, sir. Q: To what the gun was directed when he
fired the gun?
x x x           x x x          x x x
A: To Ex-Mayor Arreola, sir.
Q: How many shots did you hear?
ATTY. VILLENA:
A: Three (3) shots, sir.
Q: You said earlier that after the incident you
left the cockpit and returned, when you
Q: All those three (3) shots were directed to
returned, what did you see?
Ex-Mayor?

A: I saw two dead persons, sir.

A: Yes, sir.

Q: Whose cadavers were these that you

Q: You heard three shots according to you,
saw?
was that successive or automatic?

A: The cadavers of Ex-Mayor Arreola and

A: Successive, sir.
Capt. Tabulog, sir.
Q: You were seated at the left side of Ex-
Q: How far was the cadaver of Tabulog to
Mayor Arreola, who was seated on his right
Arreola?
side?

A: Less than a meter, sir.

A: None, sir.

x x x           x x x          x x x
x x x           x x x          x x x

Q: When you saw the corpse of Capt.

Q: Mr. witness, you said that you saw the
Tabulog, can you identify the person
deceased holding a gun when you first
passing as you mentioned?
heard gun shot, will you please describe the
stands (position) of the accused?
A: They have similarity, sir.
x x x           x x x          x x x ATTY. VILLENA:

Q: When you heard first gun shot, can you Q: You said that you heard more gun shots,
tell the position of Arreola, you and your can you tell the nature, was there in
companions? succession or automatic?

A: We were sitting at the backrest of the 4th A: Automatic, sir.

seat, sir.
x x x           x x x          x x x
Q: Where were you facing?
Q: Can you tell us your previous
A: We were facing south the arena. occupation?

Q: Where did the first gun shot came from? A: An army man, sir.

A: It came from Mario Tabaco, sir. Q: How long have you been employed with
the army?
Q: From what direction?
A: Five (5) years, sir.
A: Infront of us, sir.
Q: As an army before, have you ever been
Q: Where was he, was he in your front? handled an M-14?

A: He was in the first row of seats. A: Yes, sir.

Q: After the first gun shot, what happened? Q: Can you tell us if you are familiar with a
M-14 being fired?
A: Somebody was killed, sir.
A: Yes, sir.
Q: Who was that?
Q: Now, you said earlier that you heard
many more shots after you run, would you
A: Ex-Mayor Arreola, sir.
say that these gun shots you heard were
fired from M-14 rifle?
x x x           x x x          x x x
A: Those are that came from M-14, sir.
COURT:
Q: Where were you at the time when you
Q: How many gun shot reports did you heard the automatic gun shot?
hear?
A: I was outside the cockpit, sir. 12
A: Many, sir.
On cross-examination by the defense counsel, witness Villasin testified, thus:
 ATTY. CONSIGNA: A: He was directly behind him when the gun
reports were made, sir.
Q: You said that after the first gun shot or
gun report, Mr. Tabaco was on the first seat Q: You mean to say the first gun report?
downward, is it not?
A: Yes, sir.
A: Mr. Tabaco placed his left foot on the first
seat aiming his gun, sir. Q: And that first gun report was hit Ex-Mayor
Arreola?
Q: Directly toward the first seat, is that what
you mean? A: The three gun reports hit the Mayor, sir. 13

A: It was directed to Ex-Mayor Arreola. For his part, Peneyra testified as follows:

x x x           x x x          x x x ATTY. ARRIOLA

Q: I want to make it clear, Mr. witness, it was Q: Do you remember what particular place
the first gun that you went to hide yourself at of the cockpit when you go with Mayor
the gate of the cockpit, is that correct? Arreola?

A: After the 3rd gun shot, sir. A: Yes, sir.

Q: And these three (3) gun reports, they Q: What part of the cockpit?
were in a single successive shot, is it not Mr.
witness? A: We went up to the bleacher, sir.

A: Yes, sir. Q: Do you remember how the bleachers

were arranged inside the cockpit?
x x x           x x x          x x x
A: Yes, sir.
Q: That person who allegedly passed by you
or infront of you prior to the first gun report, Q: How were they arranged?
did you notice if he had a gun with him?
A: In rows, step by step, sir.
A: He passed by our back, sir.
COURT:
x x x           x x x          x x x
Q: How many rows?
Q: And that person according to you was still
there when the late Mayor Arreola was
shot? A: Four rows, sir.

ATTY. ARRIOLA:
 Q: And what row did you stay together with Q: Do you know what did Mario Tabaco use
the late Mayor Arreola? in shooting the late Arreola?

A: The late Mayor Arreola and Antonio A: Yes, sir.

Villasin took the 4th step, sir.
Q: What kind of firearm?
Q: And how about you?
A: M-14, sir.
A: We stood at their back west of them, sir.
Q: And do you know if Mayor Arreola was hit
Q: By the way, can you tell to the court what when Mario Tabaco shot him?
were your respective position of the place
where you stayed? A: Yes, sir.

A: The late Mayor Arreola and Antonio Q: How do you know that Mayor Arreola was
Villasin sat at the backrest of the fourth step, hit?
sir.
A: Because I saw it, sir.
Q: And how about you, where did you stay
also? Q: What did you do also?

A: I stood at the right back of Mayor Arreola, A: When Mayor Arreola was already dead, I
sir. sought cover because I was also wounded.

Q: And how about Romeo Regunton? Q: Do you know what happened also to
Romeo Regunton?
A: He also stayed at the back of Mayor
Arreola, sir. A: Yes, sir.

x x x           x x x          x x x Q: What happened to him?

Q: While you were in that position together A: When I was wounded he also said, "uncle
with your companions, do you remember if I was also wounded."
there was untoward incident that happened?
Q: What did you tell when he told you that?
A: Yes, sir.
A: I told him, "you seek cover also my son".
Q: What was that untoward incident that
happened?
Q: How did Romeo Regunton took cover?
A: That was the time when Mario Tabaco
shot the late Mayor Arreola, sir. A: He moved slowly by dragging his body
along the ground, sir.
 x x x           x x x          x x x
Q: By the way, how far were you from Mario
Tabaco who fired upon the person of Mayor
Arreola?
A: Probably more than 3 meters, sir. 14
On cross-examination, this witness testified as follows:
ATTY. CONSIGNA:
Q: When for the first time when you were
already in the cockpit arena did you see the
accused Mario Tabaco?
A: Before the shooting, sir.
Q: And approximately how many minutes or
seconds did you see Mario Tabaco for the
first time prior to the shooting incident?
A: Probably 5 minutes before, sir.
Q: And in that place of the cockpit arena
have you seen the accused herein Mario
Tabaco?
A: He sat on the first row of the seats.
Q: And sitting on the first row of the
bleachers, on what part of the cockpit arena
did Mario Tabaco, the accused sit?
A: He sat a little bit west of us, sir.
COURT:
Q: How far?
A: Probably more than 3 meters, sir.
Q: A little bit to the west, do I get from you
that he was seated on the western part of
the cockpit?
A: A little to the west, sir.
Q: An you together with the late Mayor
Arreola were also on the western part of the
cockpit?
A: We were on the northwest.
Q: Mario Tabaco, therefore, the accused in
these cases was not directly in front of you?
A: A little bit west of us, sir.
Q: It was on that position of the accused
Mario Tabaco and your position with the late
Arreola on the northwest when you
according to you saw Mario Tabaco fired his
gun, is that what you mean?
A: Yes, sir.
Q: That the accused Mario Tabaco was on
the first row when he allegedly shot on
Mayor Arreola who was on 4th row, is that
what you mean?
A: Mario Tabaco stood up and faced us, sir.
Q: So while Mario Tabaco stood up and
faced towards the direction where you were
together with the late Mayor Arreola still
Mario Tabaco was on the floor of the cockpit
arena?
A: Yes, sir, on the cemented floor.
Q: And immediately after you heard the first
shot coming from the accused Mario Tabaco
considering that you were right behind the
late Mayor Arreola, as you have stated in
 your direct examination you immediately
sought cover?
A: I only lay flat to the floor of the cockpit
when Mario Tabaco fired three (3) shots.
x x x           x x x          x x x
Q: At the time you laid flat facing down and
you did not come to know that Mayor
Arreola was dead already?
A: Why not, the first and second shots, I
know him that he was already dead.
Q: And the three (3) shots that you heard
were all directed towards Mayor Arreola?
A: Yes, sir, in our place.
x x x           x x x          x x x
COURT:
Q: To whom the 3rd shot directed?
A: In our place, sir.
Q: No person was involved on the 3rd shot?
A: That was also the time when Romeo
Regunton came toward me and told me that
he was also hit.
x x x           x x x          x x x
COURT:
Q: You don't know the person who shot
him?
A: It was Mario Tabaco because he was still
firing then, sir.
Q: You do not know the person who shot
him?
A: It was Mario Tabaco because he was still
firing then, sir. 15
The above testimonies of Villasin and Peneyra pointing to accused-appellant
as the assailant in the shooting of the ex-mayor and his companions were
corroborated further by the testimony of another eyewitness in the person of
Rogelio Guimmayen. His account of the incident is as follows:
PROSECUTOR ABAD:
x x x           x x x          x x x
Q: How far were you from Tabaco when you
saw him holding that gun?
A: More or less ten (10) meters, sir.
Q: Where was he at that specific time and
place?
A: Inside the cockpit, sir.
Q: Where were you also?
A: I was at the stairs, sir.
Q: When you saw him what happened if
any?
x x x           x x x          x x x
A: When he entered he stopped and then
the gun fired and that was the time when I
got down, sir.
Q: Did you see to whom he was directing
the gun?
A: It was directed to the Mayor's place, sir.
 Q: How far was the Mayor from the accused
Mario Tabaco?
A: More or less three (3) meters only. There
was only one bench between them, sir.
Q: Did you see the accused firing his gun
towards the Mayor?
A: With his first shot which was directed to
the Mayor that was the time I got down to
hide myself, sir. 16
On cross-examination, this witness testified as follows:
ATTY. CONSIGNA:
Q: So, it was at the time you were inside the
cockpit arena that you heard gunfire?
A: Yes, sir.
Q: And you did not see who fired that gunfire
while you were inside the cockpit arena?
A: When I was inside, I saw Mario Tabaco
pointing a gun to the Mayor and the gun
went off and that's the time I took cover, sir.
x x x           x x x          x x x
Q: And that was the last time you heard
burst of gunfire inside the cockpit arena?
A: When I went outside, I heard shots inside
and outside. 17
Set over against the foregoing positive and categorical testimonial
declaration of the above-named eyewitnesses for the prosecution is the
accused-appellant's bare denial of the charges against him. As between the
positive identification of the accused by the prosecution witnesses and the
bare denial of accused, the choice is not difficult to make. For, it is a settled
rule that positive identification by the prosecution witnesses of the accused
as perpetrator of the crime is entitled to greater weight than his bare denial
and explanation. 18
Likewise, there is no evidence from the record, as none was adduced by
accused-appellant, of any ill-motive on the part of the prosecution witnesses
as to why would they testify adversely against accused-appellant in the way
that they did. Well settled is the rule that where there is no evidence and
nothing to indicate, that the principal witnesses for the prosecution were
actuated by improper motive, the presumption was that they were not so
actuated and their testimonies are entitled to full faith and credit. 19
2. Accused-appellant contends that eyewitnesses Villasin and Peneyra were
not telling the truth when they testified that it was accused-appellant who was
the assailant in the shooting of Ex-Mayor Arreola and his companions
considering that Dr. Rivera, who examined the cadaver of Ex-mayor Arreola,
testified that the trajectory of the bullets that hit the ex-mayor shows that the
assailant was on the same level as the ex-mayor, and the trajectory of the
third bullet shows that the assailant was at a higher level as the point of entry
was higher than the point of exit. Appellant states that he was seated at the
first row which was the lowest while the ex-mayor and his companions were
seated at the fourth row which was the highest. This contention, however, is
untenable.
Eyewitnesses Villasin and Peneyra testified that accused-appellant was at
the first row of seats of the slanted bleachers of the cockpit arena, when he
stood up, stepped on one of the seats, aimed his rifle at Ex-Mayor Arreola
and his companions and fired at them. 20
The above-quoted testimonies explain very well why two gunshot wounds
found on the cadaver of Ex-mayor Arreola appear to have been inflicted while
he and his assailant were face to face and at the same level.
Upon the other hand, according to Dr. Rivera, one of the gunshot wounds of
Ex-Mayor Arreola had a point of entry higher than the point of exit because
he must have already been lying down when his wound was inflicted. 21
Well established, too, from the evidence on record is accused-appellant's
liability for the death of Jorge Siriban, Jr. and the near-fatal wounding of Sgt.
Benito Raquepo.
Not seriously disputed by accused-appellant are the testimonies of Sgt.
Benito Raquepo and policeman Mario Retreta. Sgt. Benito Raquepo testified
that at about 9:00 o'clock in the evening of March 22, 1987 while he was
taking his snacks at the canteen of Co located at the left side of the gate of
the cockpit arena, he heard five successive gun reports coming from inside
the cockpit arena. While he was on his way inside the cockpit arena, he saw
the accused-appellant coming from inside the cockpit arena. He told the
accused "Mario relax ka lang", after which the accused pointed his gun at
him. At that point in time, Mario Retreta who was among the persons near
Mario Tabaco, grabbed the gun from the latter. It was at that point when the
gun went off hitting him on the right thigh and the bullet exiting on his left
thigh. He also saw that Jorge Siriban, who was then about three meters away
from his left side, was hit at his testicles.
Mario Retreta, a policeman and relative of accused-appellant, on the other
hand corroborated in part the testimony of Sgt. Raquepo. He testified that at
about 10:00 o'clock in the evening of March 22, 1987, he was at the canteen
of Mrs. Co. While thereat, he saw accused-appellant rushing out from the
cockpit arena. Before he saw accused-appellant, he heard a gun report from
inside the cockpit arena. He was then about one meter away from accused-
appellant when he noticed Sgt. Raquepo whom he is acquainted with, and
Jorge Siriban who was then standing at the gate of the cockpit arena. Sgt.
Raquepo was facing accused-appellant and at that distance and position, he
heard Sgt. Raquepo said: "Mario keep calm". He also told accused-appellant:
"What is that happened again, Mario." When he saw accused-appellant
change his gun position from port arm to horizontal position, he got near
accused-appellant and pressed down the muzzle of the gun when accused
appellant squeezed the trigger hitting Sgt. Raquepo on both thighs and also
Jorge Siriban. A certain Sgt. Ferrer joined in the grapple and was able to take
away the gun from accused-appellant.
Sgt. Raquepo survived the gunshot wounds due to adequate medical
assistance but Siriban was not as lucky.
Accused-appellant claims that he did not have the criminal intent to kill
Siriban or wound Sgt. Raquepo, and that the gun would not have been fired
in the first place had Mario Retreta, for no apparent reason, not tried to grab
the gun from him, are without merit.
Retreta testified that he grabbed the gun from accused-appellant because
the latter changed his gun from port arm position to horizontal position, and
at that instance he thought accused-appellant might harm Sgt. Raquepo. 22
Furthermore, even assuming that he lacked criminal intent in the killing of
Sgt. Raquepo and the near-fatal wounding of Siriban, his claim of innocence
cannot be sustained. His undisputed act of firing the gun, which is by itself
felonious in total disregard of the consequences it might produce, is
equivalent to criminal intent.
Accused-appellant cannot evade responsibility for his felonious acts, even if
he did not intend the consequences thereof for, in accordance with Art. 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.
We note that while the accused was found guilty in all four (4) murder
charges and the penalty of reclusion perpetua should have been imposed on
him in all four (4) murder charges, the trial court imposed the penalty
of reclusion perpetua for all four murder charges. The trial court explained
the single sentence for four murder charges in this wise:
Whether or not the criminal cases Nos. 259, 270, 284 and
317, involving the killings of Oscar Tabulog, Jorge Arreola,
Felicito Rigunan and Romeo Regunton, respectively, should
have been prosecuted under only one Information.
The law provides:
Art. 48. Penalty for complex crimes.
When a single act constitutes two or more
grave or less grave felonies, or when an
offense is a necessary means for committing
the other, the penalty for the most serious
crime shall be imposed, the same to be
applied in its maximum period. (as amended
by Art. No. 400). (Art. 48, Revised Penal
Code).
Read as it should be, this article provides for two clauses of
crimes where a single penalty is to be imposed; first, where
the single act constitutes two or more grave or less grave
felonies (delito compuesto); and second, when the offense is
a necessary means for committing the other. (delito
complejo) and/or complex proper (People vs. Pineda, 20
SCRA 748).
In the cases at bar, the Provincial Prosecutor filed four (4)
separate Informations of murder, which should have been
otherwise, as the shooting to death of the four (4) victims
should have been prosecuted under one information,
involving four (4) murder victims.
The evidence shows that the four (4) victims were FELLED
by one single shot/burst of fire and/or successive automatic
gun fires, meaning continuous. Hence, it is a complex crime
involving four murdered victims, under the first category,
where a single act of shooting constituted two or more grave
or less grave felonies (delito compuesto), as decided in the
cases of People vs. Dama, CA 44 O.G. 3339; People
vs. Lawas, 97 Phil. 975; People vs. Pineda, L-26222, July
21, 1967, 20 SCRA 748.
Paraphrasing a more recent decision of the Supreme Court,
we say — as the deaths of Oscar Tahulug, Jorge Arreola,
Felicito Rigunan and Romeo Regunton, in Criminal Cases
Nos. 259, 270, 284 and 317 respectively, were the result of
one single act of the accused Mario Tabaco, (People vs.
Guillen, 85 Phil. 307) the penalty — is the penalty imposed
for the more serious offense. The more serious offense is
murder, the killing have been attended by TREACHERY
because the victims were completely taken by surprise and
had no means of defending themselves against Mario
Tabaco's sudden attack. The penalty is imposable in its
maximum degree (People vs. Fernandez, 99 Phil. 515), but
as the death penalty is no longer permitted the same is
hereby reduced to a single Penalty of RECLUSION
PERPETUA for the four (4) murders. (People vs. Herson
Maghanoy, GR Nos. 67170-72, December 15, 1989).
Accordingly, in Criminal Case No. 10-316, for homicide with
Frustrated Homicide and it appearing also that the death of
Jorge Siriban and the wounding of Benito Raquepo, was the
result of one single act of the accused Tabaco, the
applicable penalty is the penalty imposed for the more
serious offense. The more serious offense is HOMICIDE, to
be imposed in its maximum degree of reclusion temporal,
which is 17 years, 4 months, 1 day to 20 years. There being
no modifying circumstances and applying the Indeterminate
Sentence Law, the penalty that should be imposed, and
which is hereby imposed, upon the accused Mario Tabaco is
10 years and 1 day of Prision Mayor as the minimum, to 17
years, 4 months, 1 day of Reclusion Temporal, as maximum,
plus P30,000.00 actual damages for medical expenses of
Benito Raquepo.
It was duly proved beyond doubt that the gun (Exhs. "K", SN
No. 1492932, "K-2" — magazine of M-14 and Exh. "L" —
Memo Receipt of M-14 issued to Tabaco), used by the
accused, is admittedly an automatic powerful weapon, more
powerful than an M-16 armalite rifle. It is so powerful that the
bullets can penetrate even more than five (5) persons
resulting to their deaths. And, this was proven when,
according to witness Rosario Peneyra, the bullets even
destroyed the cemented rail guard separating the lower and
upper bleachers of the cockpit arena, and causing wounds
on his face and on his right shoulder. Additionally, we have
the used/spent empty shells (Exh. "R" and "R-1"). 23
We hold that the trial court was in error in imposing only a single penalty
of reclusion perpetua for all four murder cases. The trial court holding that a
complex crime was committed since "the evidence shows that the four (4)
victims were FELLED by one single shot/burst of fire and/or successive
automatic gun fires, meaning continuous (emphasis ours) 24 does not hold
water.
Of course, to justify the penalty imposed, the trial court relied on the doctrines
enunciated in People vs. Pama 25 (not People vs. Dama, as cited by the trial
court), People vs. Lawas, 26 and People vs. Pineda. 27
The trial court misappreciated the facts in People vs. Pama. In said case,
there was only one bullet which killed two persons. Hence, there was only
a single act which produced two crimes, resulting in a specie of complex
crime known as a compound crime, wherein a single act produces two or
more grave or less grave felonies. In the case at bench, there was more than
one bullet expended by the accused-appellant in killing the four victims. The
evidence adduced by the prosecution show that Tabaco entered the cockpit
with a fully loaded M-14 sub-machine gun. 28 He fired the weapon, which
contained 20 rounds of bullets in its magazine, continuously. When the rifle
was recovered from Tabaco, the magazine was already empty. Moreover,
several spent shells were recovered from the scene of the crime. Hence, the
ruling enunciated in People vs. Pama cannot be applied. On the contrary,
what is on all fours with the case at bench is the ruling laid down in People
vs. Desierto. 29 The accused in that case killed five persons with a Thompson
sub-machine gun, an automatic firearm which, like the M-14, is capable of
firing continuously. As stated therein:
In the case at bar, Article 48 of the Revised Penal Code is
not applicable because the death of each of the five persons
who were killed by appellant and the physical injuries
inflicted upon each of the two other persons injured were not
caused by the performance by the accused of one simple
act as provided for by said article. Although it is true that
several successive shots were fired by the accused in a
short space of time, yet the factor which must be taken into
 consideration is that, to each death caused or physical
injuries inflicted upon the victims, corresponds a distinct and
separate shot fired by the accused, who thus made himself
criminally liable for as many offenses as those resulting from
every single act that produced the same. Although
apparently he perpetrated a series of offenses successively
in a matter of seconds, yet each person killed and each
person injured by him became the victim, respectively, of a
separate crime of homicide or frustrated homicide. Except for
the fact that five crimes of homicide and two cases of
frustrated homicide were committed successively during the
tragic incident, legally speaking there is nothing that would
connect one of them with its companion offenses. (emphasis
ours)
impossible to ascertain the individual deaths caused by numerous killers. In
the case at bench, all of the deaths are attributed, beyond a shadow of a
doubt, to the accused-appellant.
Consequently, the four murders which resulted from a burst of gunfire cannot
be considered a complex crime. They are separate crimes. The accused-
appellant must therefore be held liable for each and every death he has
caused, and sentenced accordingly to four sentences of reclusion perpetua.
WHEREFORE, no reversible error having been committed by the trial court in
finding accused-appellant guilty of four (4) counts of Murder and one (1)
count of Homicide with Frustrated Homicide, the judgment appealed from
should be, as it is, hereby AFFIRMED, with the MODIFICATION that four
sentences of reclusion perpetua be hereby imposed.

In Desierto, although the burst of shots was caused by one single act
Costs against accused-appellant.
of pressing the trigger of the Thompson sub-machine gun, in view of
its special mechanism, the person firing it has only to keep pressing
the trigger with his finger and it would fire continually. Hence, it is not SO ORDERED.
the act of pressing the trigger which should produce the several
felonies, but the number of bullets which actually produced them. 30 Padilla, Bellosillo, Vitug and Kapunan, JJ., concur.

The trial court also misread People vs. Pineda. 31 True, the case

of Pineda provided us with a definition of what a complex crime is. But that is
not the point. What is relevant is that Art. 48, was not applied in the said case
because the Supreme Court found that there were actually several homicides
committed by the perpetrators. Had the trial court read further, it would have
seen that the Supreme Court in fact recognized the "deeply rooted . . .
doctrine that when various victims expire from separate shots, such acts
constitute separate and distinct crimes." 32 Clarifying the applicability of Art.
48 of the Revised Penal Code, the Supreme Court further stated
in Pineda that "to apply the first half of Article 48, . . . there must be
singularity of criminal act; singularity of criminal impulse is not written into the
law." 33 (emphasis supplied) The firing of several bullets by Tabaco, although
resulting from one continuous burst of gunfire, constitutes several acts. Each
person, felled by different shots, is a victim of a separate crime of murder.
There is no showing that only a single missile passed through the bodies of
all four victims. The killing of each victim is thus separate and distinct from
the other. In People vs. Pardo 34 we held that:

Where the death of two persons does not result from a single
act but from two different shots, two separate murders, and
not a complex crime, are committed.

Furthermore, the trial court's reliance on the case of People vs. Lawas 35 is

misplaced. The doctrine enunciated in said case only applies when it is EN BANC
 [G.R. No. 121462-63.  June 9, 1999]
PEOPLE OF THE PHILIPPINES,  plaintiff-appellee, vs. CIPRIANO DE
VERA, SR., @ "AMBOS," accused-appellant.
DECISION
VITUG, J.:
It was a celebration which started with revelry and ended in
tragedy.  The fatalities were 13-year old Gerardo Valdez y Torres and 29-
year old Perlita Ferrer y Mamorno.  Accused of having killed the two victims
was Cipriano De Vera, Sr., an uncle of Gerardo, who was charged in three
separate informations, inclusive of a charge for illegal possession of firearm,
hereinbelow recited:
In Criminal Case No. U-7809 -
"That at past 12:00 o'clock midnight of December 31, 1993 and at dawn on
the 1st day of January, 1994, or thereabouts, at barangay Cayambanan,
municipality of Urdaneta, province of Pangasinan and within the jurisdiction
of this Honorable Court, the above-named accused, armed with a firearm,
with intent to kill, did then and there wilfully, unlawfully and feloniously attack,
assault and shoot one Perlita Ferrer y Mamorno, inflicting upon the latter fatal
wounds in the head, which directly caused her death, to the damage and
prejudice of her heirs.
"Contrary to Article 249 of the Revised Penal Code." [1]
In Criminal Case No. U-7810 -
"That at dawn on the 1st day of January, 1994 and past 12:00 o'clock
midnight of December 31, 1993, or thereabouts, at barangay Cayambanan,
municipality of Urdaneta, province of Pangasinan, and within the jurisdiction
of this Honorable Court, the abovenamed accused, armed with a firearm,
taking advantage of nighttime and the sporadic burst of firecrackers on New
Year's day, with evident premeditation, treachery and deliberate intent to kill,
did then and there wilfully, unlawfully and feloniously attack, assault and
shoot Gerardo Valdez y Torres, a 13-year old boy, inflicting upon him fatal
wounds in the head, which directly caused his death, to the damage and
prejudice of his heirs.
"Contrary to Article 248 of the Revised Penal Code." [2]
In Criminal Case No. U-7811 -
"That at dawn on the 1st day of January, 1994 and past 12:00 o'clock
midnight of December 31, 1993, or thereabouts, at barangay Cayambanan,
Urdaneta, Pangasinan, and within the jurisdiction of this Honorable Court, the
above-named accused, did then and there wilfully, unlawfully and feloniously
have in his possession, custody and control one (1) firearm with ammunitions
without authority of law; which firearm he used in shooting Gerardo Valdez y
Torres, a 13-year old boy, and Perlita Ferrer y Mamorno, on the above-cited
date, time and place.
"That accused is indicted in two (2) separate Informations for the crime of
Murder for the fatal shooting of Gerardo Valdez y Torres and Homicide for
the fatal shooting of Perlita Ferrer y Mamorno, before this Honorable Court.
"Contrary to P.D. No. 1866."[3]
After a joint trial that followed the arraignment and the plea of “not guilty”
entered by the accused with the assistance of counsel, Judge Antonio M.
Belen of the Regional Trial Court of Lingayen, Pangasinan, Branch 38, found
the accused guilty as charged and so sentenced him, thusly:
"Wherefore, in the light of the considerations discussed above, the court
hereby, renders judgment in the above-entitled cases as follows:
"In Criminal Cases Nos. U-7809 and U-7810, the court finds the accused
Cipriano de Vera, Sr. alias Ambos, guilty beyond reasonable doubt of the
complex crime of Murder with Homicide defined and penalized by Article 48
of the Revised Penal Code and conformable thereto, pursuant to law, hereby
sentences said accused to suffer the penalty of death and to pay the costs.
"The court further orders the accused to indemnify the heirs of the deceased
Gerardo Valdez, the sum of P20,285.00 as actual damages; P50,000.00 as
death indemnity and moral damages of P20,000.00 without subsidiary
imprisonment in case of insolvency.  The court likewise orders the accused
to indemnify the heirs of the deceased Perlita Ferrer the sum of P35,000.00
as actual damages; P50,000.00 as death indemnity and P2,040,000.00 as
loss of earning capacity of the late Perlita Ferrer without subsidiary
imprisonment in case of insolvency.
"In Criminal Case No. U-7811, the court likewise finds and holds the
accused, Cipriano de Vera, Sr. alias Ambos, guilty beyond reasonable doubt
of the crime of Illegal Possession of Firearm and Ammunitions, penalized
under the provision of Presidential Decree No. 1866 as amended, and
conformable thereto, pursuant to law, hereby sentences said accused to
suffer the indeterminate prison term of twelve (12) years of prision mayor
as minimum to eighteen (18) years and ten (10) months of reclusion temporal
as maximum and to pay the costs of the proceedings.
"SO ORDERED."[4]
The trial judge briefly narrated the evidence successively presented by
the prosecution and the defense.
Evidence For the Prosecution. –
Neil Valdez, brother of Gerardo, recalled that at around midnight of 31
December 1993, he and Gerardo were exploding firecrackers when he
noticed his uncle, Cipriano De Vera, Sr., go under a mango tree.  Minutes
later, he was startled by a gunshot, followed by the falling body of his brother,
Gerardo, to the ground.  When he looked around, he saw the accused, whom
he clearly recognized, holding a long-barreled gun, about one meter long,
also locally known as "sumpak." The accused was about 8 to 9 meters away
from him.  Just as he started to assist his brother, Neil heard shouts, about
40 to 50 meters away, that Perlita was also dead ("aynatay metten ni
Perlita").  He learned moments later that Perlita was shot on the left side of
the forehead above the left eye.  The accused tried to flee from the
scene.  Neil proceeded to give chase but he was not able to overtake the
accused.  He speculated that the shooting was an offshoot of the land
dispute between his father and the accused.
Samuel Nicer testified that a few days before the incident, he saw the
accused sporting a gun.  Around midnight of 31 December 1993, he,
together with Rodrigo Gallardo, Raffy Bustamante and some other friends,
again chanced upon the accused holding the same one-meter long gun,
which the latter, in fact, pointed at them.  At about 12:10 a.m. of 01 January
1994, while on his way home, the witness saw the accused walking towards
the east, in front of the Dominguez ricemill, still carrying his "sumpak."
Jesusa Valdez, sister of Gerardo, stated that at about 10:45 p.m. of 31
December 1993, she and Gerardo were invited by Mary Ann, daughter of the
accused, to partake of the New Year's meal at the latter's house.  While
thereat, they were warned by the accused not to go out of their house that
night because there would be a traitor (judas) in the vicinity.  Later, at their
own house, she was at the terrace watching Neil and Gerardo explode
firecrackers when she saw the accused, then under a mango tree, shoot
Gerardo, using a firearm about 2-1/2 feet long.  While she went to succor her
brother, she saw the accused going eastward.  She attested to the existence
of a feud between her father and the accused.
SPO1 Asterio Dismaya, a member of the Philippine National Police and
duty investigator, said that their office received in the morning of 01 January
1994 a report on the shooting incident.  He proceeded to Cayambanan,
Urdaneta, with one Sgt. Reyes and conducted a “spot investigation.”  A
sketch of the surroundings showed that the bullet traveled from the east to
the west direction and that there was no obstruction between Gerardo and
Perlita, the fence along the road being only about one meter high.  The
accused was fingered to be the culprit responsible for the shooting
incident.  The latter’s wife told the police officers that the accused had
already left for Manila at midnight of 31 December 1993.  SPO1 Dismaya
was later to learn that the accused had "surrendered" to Sgt. Prudencio
Cawagan of the Urdaneta Police.
Dr. Ramon Gonzales, Jr., Rural Health Officer of Urdaneta, Pangasinan,
declared having conducted an autopsy examination on 01 January 1994 and
03 January 1994, respectively, on the remains of Gerardo Valdez and Perlita
Ferrer.  Gerardo had sustained three gunshot wounds; viz:  The first wound,
on the right parietal region, behind the right ear, was rounded, about 8 mm. x
7 mm., directed inwards with a point of entry but no point of exit; the pellet
was found on the muscle liner at the left temple of the victim.  The second
wound, 17 mm. x 12 mm., at the mid-parietal region, middle part of the lower
neck just above the nape, also indicated a point of entry but no point of exit;
the slug was found in the right occipital of the brain.  The third wound, 15
mm. x 9 mm., in the mid-occipital region, at the back of the neck above the
second wound, likewise had a point of entry and no point of exit; the slug was
found in the cranial cavity.  Dr. Gonzales testified that the distance between
the first and second wounds was approximately two inches and about an inch
between the second and third wounds.  The first slug went through the brain
and stopped at the left temple; the second went through the brain and
caused bleeding; and the third penetrated the skull and entered the
brain.  According to him, all the wounds were fatal.  The slugs were kept in
his office since he was not asked to turn them over to the police.  The
autopsy on Perlita revealed that she had suffered a gunshot wound on the
left eyebrow.  It had a point of entry but no point of exit, and the slug was
found at the right parietal lobe of the brain.  The wound was fatal.  He said
that the slugs he recovered from Gerardo Valdez were similar to the slugs he
recovered from Perlita Ferrer which he also kept in his office.
Angelita Ferrer, the mother of Perlita, upon learning that the latter had
been shot, repaired at once to the hospital but Perlita had already expired by
the time she arrived.  At the time of her death, Perlita was 29 years old,
single, and earning P8,000.00 a month as the manager of a restaurant in
Quezon City.  The witness said that she spent P16,995.00 for her daughter's
night vigils and  P15,000.00 for the funeral.
Dalia Ferrer stated that she and her sister Perlita were in Cayambanan
for the New Year's celebration at the invitation of Julito De Vera.  The house
of Gerardo was about 40 to 50 meters from where her sister was standing
when shot.  Perlita was brought to the Sacred Heart Hospital where Neil
Valdez informed her that the assailant was the accused.
Renato Valdez, the father of Gerardo, confirmed that he and the
accused, a cousin, had a dispute over the land given to Renato's father by
their grandfather of which the accused wanted a share.  At about 12:05 in the
morning of 01 January 1994, he was at the house of his friend Meni in
Nancalabasaan, Urdaneta, when informed by his son Neil that Gerardo had
been shot by the accused.  He promptly proceeded to the Sacred Heart
Hospital but he was unable to reach his son alive.  He spent P2,375.30 for
Gerardo's hospitalization, P4,200.00 for the vigil, P4,000.00 for the lompos,
P3,000.00 for the tomb, P300.00 for the lapida, P200.00 for the church rites,
P10.00 for the burial permit and P5,000.00 for the funeral
expenses.  Gerardo was in first year of high school when he died.
Evidence For the Defense. –
Cipriano De Vera, Jr., a son of the accused, claimed that around 9:00
p.m. of 31 December 1993, he was on guard duty at the Iglesia ni Cristo
Chapel in Cayambanan with Neil Valdez, Jovito Opinion and Julius De
Vera.  Neil left at around 10:00 p.m. after being informed that his brother
Gerardo had been shot.  Neil returned at 12:15 a.m. of 01 January 1994 and
stayed with the group until 2:00 a.m.  The witness said that Neil used to be a
member of the church until he was expelled therefrom.
Glenda De Vera testified that on the eve of 31 December 1993, she
celebrated the coming of the New Year with her family, relatives and some
guests.  It was her father, the accused, who prepared the food for them.  Her
father, as well as some of the visitors, left the house at around 10:00
p.m.  When her father failed to return, her sister looked for him in Barangay
Paurido where she was informed by relatives that he already had left for
Manila.  She testified that the accused had worked in Manila and would go
home to Urdaneta only thrice a year.  At around 1:00 a.m. of 01 January
1994, she learned that one of their neighbors had been hit by a stray
bullet.  When she and her sister Grace were informed that their father was
being sought by the police, Grace went to Manila to apprise the accused
about it.  Her father was not able to return to Pangasinan immediately but
later he "surrendered" to the police authorities.
Romeo Barcelona, a relative of the wife of the accused, stated that in
the evening of 31 December 1993, at about 11:00 p.m., the accused was at
their house in Barangay Paurido, where he helped prepare the food they
would partake for the evening celebration.  The accused finished cooking at
1:00 a.m. of 01 January 1994.  After eating, they went to bed and woke up at
around 6:00 a.m.  Shortly thereafter, the accused left for Manila.
The accused, Cipriano De Vera, Sr., asserted that he arrived in
Urdaneta from Manila on 27 December 1993.  In the evening of 31
December 1993, he cooked the food for his family.  After taking their supper
at about 8:15 p.m., his children went to the Iglesia ni Cristo chapel while he
departed for Barangay Paurido, Urdaneta, to cook for his cousin, Felicidad
Barcelona.  He arrived in Barangay Paurido at 10:30 p.m., celebrated with
his relatives and there spent the night.  He woke up at 6:00 a.m., and left for
Manila after taking a bath and having his breakfast.  He arrived in Manila in
the afternoon of 01 January 1994 and proceeded to work the next
day.  When he returned from his work that day, he was surprised to find his
daughter, Grace, who went to see him about a pending warrant for his
arrest.  He was able to return to Urdaneta only on 06 January 1994.  After
attending a religious service at the Iglesia ni Cristo chapel, he proceeded to
Barangay Paurido.  He went to the Urdaneta police station on 08 January
1994 to inquire about a warrant of arrest issued against him on a pending
rape charge but he was promptly put to jail.
The accused sought to discredit the testimony of Neil Valdez and
surmised that the latter had testified against him for his having given
previously a warning against Neil's visits to his daughter and also because
the Valdez family would want him to vacate the lot which he and his family
were occupying.  On the other hand, prosecution witness Samuel Nicer, the
accused claimed, also held grudges against him (the accused).  Nicer
suspected that Glenda and Grace, daughters of the accused, to be the
persons responsible for the expulsion of Nicer from the Iglesia ni Cristo.
Neil Valdez and Samuel Nicer were presented on rebuttal.  Neil said that
neither Cipriano De Vera, Jr., nor the accused was a member of the Iglesia ni
Cristo, either in Cayambanan or in Nancalabasaan, Urdaneta.  Nicer, for his
part, denied having been expelled from the Iglesia ni Cristo.  Also presented
at the witness stand was Isagani Pagaduan, Cayambanan Secretary of the
Iglesia Ni Cristo from 1985 to 1993 who attested that Neil Valdez had never
been expelled from the church.  He also declared that on 31 December 1993,
Neil Valdez stayed at the Iglesia ni Cristo chapel only until 10:00 p.m., and
that the latter did not come back that night after leaving the place.
As aforesaid, the court a quo, presided over by Judge Antonio M. Belen,
found for the prosecution and convicted the accused.  Forthwith, the case
was elevated to this Court for automatic review pursuant to Republic Act No.
7659 on account of the imposition by the trial court of the death penalty.
In challenging the decision that has convicted him of all the charges,
accused-appellant contends that -
"I. THE TRIAL COURT'S DECISION IS INCONSISTENT WITH THE
EVIDENCE.
"A.     THE TRIAL COURT ERRED IN GIVING CREDENCE TO THE "B.     THERE IS NO COMPELLING REASON TO REIMPOSE THE DEATH
TESTIMONIES THE ALLEGED EYEWITNESSES PENALTY FOR MURDER.

"B.     THE TRIAL COURT ERRED IN HOLDING THE APPELLANT LIABLE "C.     THE RULING IN PEOPLE VS. ECHEGARAY DESERVES
FOR PERLITA FERRER'S DEATH. REEXAMINATION."[5]

"II.            THE TRIAL COURT'S DECISION IS INCONSISTENT WITH LAW
AND JURISPRUDENCE.
"A.     THE TRIAL COURT ERRED IN CONVICTING THE APPELLANT OF A
COMPLEX CRIME CONSTITUTING CRIMES ALLEGED IN SEPARATE
INFORMATIONS.
"B.     THE TRIAL COURT ERRED IN APPRECIATING THE QUALIFYING
CIRCUMSTANCE OF TREACHERY.
Well-settled is the rule that the factual findings of, including particularly
the assessment on the credibility of witnesses made by, a trial court are
accorded a great degree of respect and will not, absent strong cogent
reasons, be disturbed on appeal.  In this instance, the Court sees no
justification to set aside the conclusions arrived at by the trial court and its
holding that accused-appellant indeed is responsible for the death of the two
victims.
Neil Valdez, testifying before the trial court, categorically pointed to the
accused to be the perpetrator of the killings.  Neil stated:

"C.     THE TRIAL COURT ERRED IN NOT DETERMINING MOTIVE AS "Q   Do you know Gerardo Valdez y Torres, the victim in Criminal Case
IMPORTANT FOR CASES IN WHICH THE IDENTIFICATION OF THE No. U-7810?
ACCUSED IS DOUBTFUL. "WITNESS:

"D.     THE TRIAL COURT ERRED IN DISREGARDING THE APPELLANT'S "A   Yes, sir.

DEFENSE OF ALIBI. "Q   Where is he now?

"E.     THE TRIAL COURT ERRED IN NOT APPRECIATING VOLUNTARY "A   Already dead, sir.
SURRENDER AS A MITIGATING CIRCUMSTANCE. "Q   What age when your brother, Gerardo Valdez, died?

"F.     THE TRIAL COURT ERRED IN CONVICTING THE APPELLANT OF "A   He was 13 years old, sir.
VIOLATION OF P.D. No. 1866. "Q   Do you know also the accused in these three (3) cases, Cipriano de
Vera?
"G.     THE TRIAL COURT ERRED IN CONVICTING THE APPELLANT OF
SEPARATE OFFENSES. "A   Yes, sir.
"Q   Why do you know Cipriano de Vera?
"III.           THE TRIAL COURT VIOLATED THE CONSTITUTIONAL
PRESUMPTION OF INNOCENCE AS IT RESOLVED ALL DOUBTS "A   He is my uncle and a neighbor, sir.
AGAINST THE APPELLANT. "Q   Why is he your uncle?

"IV.           THE TRIAL COURT VIOLATED THE RIGHT OF THE
APPELLANT TO A PRELIMINARY INVESTIGATION.
"V.            THE SENTENCE OF DEATH IMPOSED BY THE TRIAL COURT
IS AN UNCONSTITUTIONAL PENALTY AND THUS VOID.
"A.     MURDER AS DEFINED BY R.A. NO. 7659 IS NOT A HEINOUS
CRIME.
"A   Because the father of Cipriano de Vera and the father of my father
are brothers, sir.
"Q   How is Cipriano de Vera properly called in your place?
"A   Alias `Ambos,' sir.
"Q   You said you are neighbors, how far is your house to his house?
"A   It is around fifteen (15) meters away, sir.
"Q   Now, during the midnight of December 31, 1993, do you know where
you were?
"A   Yes, sir.
"Q   Where were you? at about midnight of December 31, 1993?
"A   I was beside my brother, Gerardo Valdez, lighting firecrackers, sir.
"Q   Why were you lighting firecrackers?
"A   It was eve of New Year or New Year's eve, sir.
"Q   At what particular place were you near your brother, Gerardo Valdez,
at that time?
"A   Infront of our house, sir.
"Q   What barangay?
"A   Cayambanan, Urdaneta, Pangasinan, sir.
"Q   Now, as you were infront of your house lighting firecracker near your
brother, do you observe any unusual incident that took place
thereat?
"A   I noticed the accused Ambos went to the road and then returned
under the mango tree and thereafter, he held a shot bang and I saw
my brother, Gerardo Valdez fell down and when I looked around I
saw Cipriano de Vera holding a long firearm and pointed to the
direction of my brother, Gerardo Valdez, sir.
"Q   Kindly describe this long firearm which you saw pointed by the
accused at your brother?
"A   One (1) meter long and the barrel is iron pipe, sir.
"Q   Do you know what is the popular name of that firearm which you saw
in the possession, control and custody of the accused?
"A   They called `sumpak,' sir, or called `Pasoot.'
"Q   What is the ammunition used in that `sumpak' or `palsoot?'
"A   Gauge 12, sir.
"Q   What is the gauge 12 bullet called for, what kind of firearm?
"A   Bullet of a shotgun, sir.
"Q   What did you see the accused do as he was holding that `sumpak'
directed to your brother at the time?
"A   When I lighted firecracker there was a big `bang' and I saw the
accused pointed direct to my brother and when I looked at my
brother, he fell down, sir.
"Q   How far were you from the accused when you saw directed the
firearm towards your brother and shot him?
"ATTY. EVANGELISTA:
We will object, Your Honor.  There is not testimony as to the shooting by
the accused to his brother.  This witness testified on he light
firecracker and he heard a big `bang' and saw holding iron bar.  He
did not say, he shot, Your Honor.
"COURT:
"Q   How far were you when you saw the accused pointing that `sumpak'
towards your brother?
"WITNESS:
"A   Eight (8) to nine (9) meters away, sir.
"FISCAL:
"Q   Will you demonstrate how the accused held the long firearm
(sumpak) directed to your brother and heard this loud sound `bang?'
"WITNESS:
"A   Like this, sir (Witness now demonstrating to the Court extending his
right hand at the right side and the left is extended forward as if
holding something).
"Q   What further action did the accused, if any, while he was holding that
firearm?
"A   I saw the accused pushed something on the `sumpak' and my brother
was hit, sir.
"Q   As the accused has made that motion pushing forward with his right
hand, what did you see as a result of that action made by the
accused on the gun, if any?
"A   The gun fired, sir.
"Q   Now, when you saw your brother hit by the action of the accused
firing the gun, what more, if any, did you observe?
"ATTY. EVANGELISTA:
We object, Your Honor.  There is no such fired the gun.  What he said, he
pushed something.  He did not fire any trigger, Your Honor.
"COURT: "Q   How many times did you see the accused made this motion firing the
long firearm (sumpak)?
The accused pushed something.
"WITNESS:
"Q   What else did you observe, if any?
"A   Only once, sir.
"WITNESS:
"Q   Now, what happened next when you saw your brother, Gerardo
"A   After the gun fired, I saw my brother fell down and when I embraced Valdez hit and nearby he fell down?
him he was injured on his head, sir.
"A   Yes, sir.  My brother was hit and fell down and I embraced him and I
"FISCAL: saw the accused ran, sir.
"Q   Simultaneously, when you saw your brother was hit, what more did "COURT:
you observe in the surroundings, if any?
"Q   Where?
"WITNESS:
"WITNESS:
"A   Then, I also heard shouts because somebody was hit nearby, sir.
"A   Towards the East direction, sir.  When I tried to chase him he ran
"Q   Can you tell where did these shouts originate in relation to the place farther, so, I did not continue chasing him.
of your brother, Gerardo Valdez was?
"FISCAL:
"A   On the West direction, sir.
"Q   How far in meters have you gone in chasing the accused Eastward?
"Q   About how many meters did you hear the shout to the place where
you were? "WITNESS:
"A   Forty (40) to fifty (50) meters away, sir. "A   When I saw him he was around seventy (70) meters around because
it was bright, so, I recognized him because there was moonlight and
"Q   Can you tell us what were the shouts about? it was bright, sir.
"A   They said Perlita died, sir. "Q   How many meters did you take this chase to the accused?
"Q   Did you come to know why Perlita died? "A   I chased the accused up to the place where he entered there were
"A   He was also hit on the left side of the forehead just above the left eye, concrete fence, so, we lighted the place with flashlight and thickly
sir. populated and there were thick grasses, sir.

"Q   Do you know the reason why this Perlita was hit on her left forehead?
"A   According to the information, I heard that Perlita was facing towards
our direction and perhaps an extra bullet hit her, sir.
"ATTY. EVANGELISTA:
We move to strike out the answer of the witness on the ground that it is
hearsay.  Aside from being hearsay, it is based on conjection.
"COURT:
As part of narration, the answer stay on the record.
"FISCAL:
"Q   How many meters from the place where you chased the accused to
the place where you stopped when the accused entered in that
place?
"A   A distance of One Hundred (100) meters, sir, from the place where
we were.
"Q   Now, after you were not able to chase the accused, what transpired
next?
"A   After he went to the East direction, sir.
"Q   By the way, who were your companions in chasing this accused as
you said earlier `we?'
"A   My uncle Victorino Valdez and no more, sir.
 "Q   What more transpired when you went Eastward? "A   Around three (3) meters away, sir.
"A   I called for my father and told him that my brother died, sir. "COURT:
"Q   Can you point this Cipriano de Vera, alias `Ambos' whom you saw Go ahead.
that night carrying that `sumpak' aimed at your brother and hit on his
back of his head? "ATTY. EVANGELISTA:

"A   He is there, sir (Witness pointing to the accused)." [6] "Q   And where was he facing at that time?

The witness did not waver during the cross-examination.  He went on to "WITNESS:
respond to questions thusly: "A   He was facing North towards the road, sir.
"ATTY. EVANGELISTA: "Q   And you say that the accused was allegedly on the Eastern side of
"Q   Mr. Witness, at the time of the incident you testified to here, were you the place where you were?
facing your brother? "A   Yes, sir.
"FISCAL" "Q   At that moment therefore, Mr. Witness, you were facing towards the
At what particular time? Northeast, direction?

"ATTY. EVANGELISTA: "FISCAL:

The alleged shooting. What moment?

"FISCAL: "ATTY. EVANGELISTA:

We object, that is misleading. At that time of the shooting.

"COURT: "COURT:

Answer. Answer.

"WITNESS: "WITNESS:

"A   I was not facing him directly, sir.  He was on my side, sir. "A   I was facing the suspect, sir.

"COURT: "ATTY. EVANGELISTA:

"Q   What side? "Q   Mr. Witness, why are you facing the East direction the suspect?

"WITNESS: "WITNESS:

On my left side, sir. "A   I was facing the firecrackers, sir.

"Q   To what direction? "Q   You mean to say, you are throwing the firecrackers infront of the
accused?
"A   North direction, sir.
"A   No, sir, within our compound.
"Q   So, your brother was North of you at the time he was shot, correct?
"Q   But it is towards its direction?
"A   Yes, sir.
"A   It is far from him and those are just small firecrackers, sir.
"Q   How far was he from you?
"Q   How far is it from him the firecrackers being thrown to you?
 "A   Six (6) meters away, sir.
"Q   Will you point to any particular point that is six (6) meters away?
"A   From here up to the place of the accused where he was sitted,
sir.  (Estimated to be five (5) meters).
"Q   Mr. Witness, and how far were you throwing of your firecrackers?
"A   About two (2) meters away from me, sir.
"Q   And how far was it from the place of you are standing?
"A   From here up to the stenographer, sir.
"Q   Mr. Witness, do you have to throw the firecrackers towards the
direction of the accused?
"A   At the time we throw those firecrackers the accused was not yet
there.  There were no persons before he shot my brother, sir.
"Q   When you saw your brother allegedly shot, were you lighting a
firecracker at that time?
"A   I was waiting the last firecracker which I lighted to exploid, sir.
"Q   In other words, your attention was towards the firecracker which you
have just thrown?
"FISCAL:
Misleading, Your Honor.
"COURT:
Answer.
"WITNESS:
"A   At the time, I was waiting for the firecracker to exploid.  My attention
was on that direction and I saw the accused fire his gun, sir." [7]
The above testimony of Neil Valdez was bolstered by an account of the
incident given by Jesusa Valdez.  Jesusa declared:
"Q   Now, at about 12:05 in the early morning of January 1994, do you still
recall where you were?
"A   Yes, sir.  I was in our terrace and I was watching my brothers,
Gerardo Valdez, and Neil Valdez lighting firecrackers infront of our
house, sir.
Valdez by asserting that the latter was with him on the night of the incident
"Q   while you were there in your terrace watching your brothers lighting
firecrackers, do you remember having noticed unusual incident that
happened at that time?
"A   I saw the accused shot my brother, Gerardo Valdez, while the
accused was under the mango tree, sir.
"Q   Now, can you describe that weapon used by the accused in shooting
your brother, Gerardo Valdez?
"A   It is a long firearm about 2 and 1/2 foot long, sir, and it is adjustable
and bullet is like a pipe.
"Q   Can you demonstrate how the accused shot your brother?
"A   The accused pointed his gun towards my brother with his right hand
lower and his left hand about 45 degree by the gun with his right 45
degrees, sir.
"FISCAL:
To make the demonstration better, this witness be given a long object to
represent.
"WITNESS:  (continuing)
"A   First, the accused held the butt of the gun with his right hand as if
pulling something while the left hand holding the middle extended
forward pulled then pushed the gun, sir, the mechanism of the gun.
"FISCAL:
"Q   How far were you from the accused when you saw him shot your
brother?
"WITNESS:
"A   More or less, eight (8) meters away, sir.
"Q   What transpired next after that?
"A   After the shooting, I approached my brother and I went near him while
there I heard shouts coming from the West direction saying that
someone was shot in that place, sir.
"Q   When you went near your brother, Gerardo, who fell down after he
was shot, what did you do?
"A   I embraced my brother and I saw the accused going towards the East
direction, sir."[8]  
Cipriano De Vera, Jr., the son of the accused, tried hard to discredit Neil
and left only after he had learned of the death of his brother.  This assertion, "Q   And Mr. witness, in Manila, do you know what happened?
however, was convincingly rebutted by Isagani Pagaduan, a former secretary
of the Iglesia ni Cristo, who attested to the fact that Neil had left the chapel at "A   When I arrived, I worked as a masonry, sir.
around 10:00 p.m. and never returned that evening. "COURT
The Court cannot look with favor at the alibi proffered by the accused for "Q   Cementing what?
not only is it considered one of the weakest defenses, obviously due to its
being capable of easy fabrication, [9] but also because it may not prevail over "A   I worked as a masonry in a construction of a house, sir.
witnesses' positive identification that points to him as the perpetrator of the
"ATTY. EVANGELISTA
crime.[10] At all events, for the defense of alibi to prosper, it is not enough that
the accused can prove his being at another place at the time of its "Q   After working, what did you do?
commission; it is likewise essential that he can show physical impossibility for
him to be at the locus delicti.[11] Appellant himself has averred that Paurido, "A   I went home to the house of my elder sister in Makati, sir.
Urdaneta, Pangasinan, is just about eight to nine kilometers away from "Q   And what did you find out when you went home?
Cayambanan, Urdaneta, Pangasinan, and could be reached by a tricycle in
just about twenty to thirty minutes. "A   I came upon my daughter, Grace, sir.
Neither can the Court agree with appellant that the witnesses for the "Q   What day was that?
prosecution have been goaded by improper motives in testifying against
him.  Nothing of substance has here been presented to convince the Court "A   January 1, 1994 in the afternoon and asked why was she there,
that the prosecution witnesses would deliberately lie, send the wrong man to sir.  She told me that I had a warrant of arrest, sir.
jail or even to the gallows, and set the real malefactor scot-free. "Q   What else did you inquire regarding the warrant of arrest from your
The trial court has correctly appreciated the qualifying circumstance of daughter, Grace?
treachery against appellant.  Treachery exists when the means of execution "A   It was a warrant of arrest regarding my pending case for Rape, sir.
employed by the accused gives the victim no opportunity to defend himself or
retaliate, and the means of execution are deliberately or consciously "Q   And what did you tell her, if any?
adopted.[12] It has been amply shown in this instance that the victims have
"A   I told her to go home ahead because I will follow since I still have
been totally unprepared for the sudden and unexpected attack.  It is also
work to do, sir.
evident that appellant has placed himself at a safe distance in firing at his
victims, indeed hiding behind the noise and merriment of the New Year's "Q   Mr. witness, you said you were to follow Grace, where were you to
celebration, to avoid any risk to himself and then to cover up his nefarious follow her?
deed.
"A   Here in Urdaneta, Pangasinan, sir.
The contention of the defense that the trial court has erred in not
appreciating the mitigating circumstance of voluntary surrender in favor of "Q   Did you follow Grace in Urdaneta, Pangasinan?
appellant has no merit.  The essence of voluntary surrender is spontaneity "A   Yes, sir.
and the intent of the accused to give himself up and submit himself
unconditionally to the authorities either because (1) he acknowledges his "Q   What day did you follow her?
guilt, or (2) he would wish to save the State of having to itself effect his
capture and arrest pertinent to the crime with which he is charged and in "A   It was in January 6, 1994, sir.
regard to which that mitigating circumstance is invoked. [13] Voluntary "Q   And where did you proceed that day?
surrender is not a mitigating circumstance where it appears that the purpose
of the accused in going to the authorities is for an entirely different matter. "A   I dropped by the chapel, sir.
In the case at bar, appellant himself said that he had gone to the police "Q   What chapel are you referring to?
station in Urdaneta merely to inquire about a warrant of arrest in connection
"A   The Church of Christ (INK), sir.
with a pending case against him for rape.  Thus:
 "Q   What time was that?
"A   I arrived at the INK chapel 2:30 in the afternoon, sir.
"Q   And what did you do there?
"A   I attended the religious service, sir.
"Q   And how long did you stay there?
"A   After the church service, I proceeded to Paurido, Urdaneta,
Pangasinan, sir, to sleep there.
"Q   The following day, January 7, 1994, what did you do next, if any?
"A   I still helped working in Paurido, Urdaneta, Pangasinan, sir.
"Q   Did you not inquire on the reported warrant of arrest against you, Mr.
witness?
"A   I asked them about it but I was the one who personally went to the
police station of Urdaneta, Pangasinan, sir, on January 8, 1994.
"Q   Upon reaching the police station of Urdaneta, Pangasinan, what
happened there?
"A   They informed me that I have a pending case in the police station and
told me that I will be incarcerated, sir.
"Q   And you were incarcerated?
"A   Yes, sir.
"Q   And do you know why you were incarcerated that day?
"A   Because of the Rape case filed against me, sir.
"Q   Mr. witness, did you come to know that incident that transpired in
Brgy. Cayambanan, Urdaneta, Pangasinan about 12:05 of January
1, 1994?
"A   I was only informed when I was already jailed, sir." [14]
Appellant brings up the alleged violation of his right to preliminary
investigation.  The right to preliminary investigation, however, may be
waived, and it will be deemed to have been waived by failing to invoke it prior
to, or at least at the time of, the arraignment. [15] The question of whether there
has been a preliminary investigation, or whether it has been properly
conducted, should be interposed prior to the plea of the accused. [16] The
Office of the Solicitor General is correct in contending that it would now be
late in the day for appellant to raise the issue for the first time in this appeal
before the Court.
Anent the allegation that appellant could not have been responsible
likewise for the death of Perlita Ferrer, the Court agrees with the
observations of the trial court that -
(1) the slug extracted from the right parietal lobe of Perlita's brain is
similar to the pellets extracted from the head of Gerardo;
(2) the wounds sustained by the two victims were caused by
gunshot and the ammunitions used are pellets, like the ones
used in a shotgun;
(3) Perlita was standing on the same line of direction as Gerardo
when accused-appellant fired his sumpak -
along with the fact that Perlita would appear to have fallen at just about the
same time as Gerardo did after the shot was delivered, are circumstances
that all point just to the contrary.
The trial court erred, however, in convicting appellant for Illegal
Possession of Firearm and Ammunitions.  In People vs. Valdez,[17] the Court,
citing People vs. Molina[18] and People vs. Feloteo[19] held that there could be
no separate conviction for Illegal Possession of Firearms under Presidential
Decree No. 1866 in view of the amendments introduced by Republic Act No.
8294 and that the illegal possession of firearms should thenceforth be taken
as an aggravating circumstance pursuant to Section 1 of the amendatory
law.  Nevertheless, the alleged use of an unlicensed firearm as a special
aggravating circumstance in Criminal Case No. U-7809 and Criminal Case
No. U-7810 would be improper.  While it was established by the testimonies
of Neil and Jesusa Valdez that appellant used a sumpak in shooting the
victims, it was not equally established that appellant had no license to
possess it.  The fact that the firearm appeared to be a homemade gun or
illegally manufactured would not dispense with the requirement of proof that it
was unlicensed.[20] Besides, Republic Act No. 8294 took effect only on 06
July 1997 and could only be given retroactive effect if favorable to the
accused, such as in its application to Criminal Case No. U-7811, but not
when it would aggravate the criminal liability of the accused.
Finally, appellant raises the issue of whether or not the trial court has
acted rightly or has erred in convicting him for the complex crime of murder
with homicide.  Here, the Court finds for accused-appellant and quotes with
approval the observation made by the Office of the Solicitor General, viz:
"The record of the case will show that three separate informations were filed
against appellant, one for the murder of Gerardo Valdez, the second for
homicide for the death of Perlita Ferrer, and the third for illegal possession of
firearms.  This Honorable Court has held that `while the trial court can hold a
joint trial of two or more criminal cases and can render a consolidated
decision, it cannot convict the accused of a complex crime consisting of the
various crimes alleged on the two informations' (People vs. Legaspi, 246
SCRA 206, 213).  Thus, appellant cannot be held liable for the complex
crime of murder with homicide but should be held liable separately for these
crimes."[21]
In People vs. Legaspi,[22] abovecited by the Solicitor General, the
appellants were charged with two separate informations, one for double
murder (Criminal Case No. C-28760 [87] and the other for violation of R.A.
No. 6539 (Criminal Case No. C-28761 [87]).  The Court there held:
"x x x Their conviction can only be limited to the crime alleged or necessarily
included in the allegations in the separate informations.  What controls is the
description of the offense, as alleged in the information (Santos vs. People,
181 SCRA 487 [1990]).  While the trial court can hold a joint trial of two or
more criminal cases and can render a consolidated decision, it cannot
convict the accused of a complex crime constitutive of the various crimes
alleged in the two informations.  Thus, the accused were deprived of their
constitutional right to be informed of the nature and cause of the accusation
against them (1987 Constitution, Art. III, Sec. 14[2])." [23]
There is, nevertheless, a need to modify the award of damages awarded
by the trial court to the heirs of the victims.  In People vs. Alberto Nullan, et
al.,[24] the Court had occasion to restate the rules; viz:
“With respect to damages, the recovery of actual damages must be premised
upon competent proof and best evidence obtainable by the injured party
showing the actual expenses incurred in connection with the death, wake or
burial of the victim.  Courts cannot simply assume that damages are
sustained by the injured party, nor can it rely on speculation or guesswork in
determining the fact and amount of damages.  In the case at bench, the
Court accepts as having been incurred the amount of P52,851.96 for doctor
fees, hospital bills, funeral cremation, burial services and the cost of the tomb
of the victim for which supporting receipts are on record.  The alleged
reasonable miscellaneous expenses of P40,000.00 are disallowed for not
having been sufficiently proved.  The actual damages awarded by the trial
court should be thus reduced to only P52,851.96.  Relative to the amount of
damages for loss of earnings, the trial court has fixed the amount of
P1,000,000.00 based on the victim’s life expectancy of 65 years.  This Court
has consistently used the formula: [2/3 x (80 - age of victim at time of death)]
in determining life expectancy.  The victim in this case therefore can be said
to have had a life expectancy of [2/3 x (80 – 46)] 23 years.  The trial court
has aptly estimated his annual income to be close to P120,000.00 from which
amount should be deducted the necessary and incidental expenses which
the victim would have incurred if he were alive, estimated at 50%, to about a
balance of P60,000.00 net annual income.  In computing the loss of earning
capacity of the victim, several factors are considered besides the
mathematical computation of annual income times life
expectancy.  Allowances are also made for circumstances which could
reduce the computed life expectancy of the victim like the nature of his work,
his lifestyle, age and state of health prior to his death, and the rate of loss
sustained by the heirs of the victim.  All taken, the sum of P1,000,000.00 for
loss of earning capacity of the deceased victim awarded by the trial court
must be increased to P1,380,000.00.  The award of moral damages of
P100,000.00 arising from the mental anguish suffered by the surviving
spouse, Julie Gotanci, and testified to by her, is reasonable.”
Angelita Ferrer, mother of Perlita, said that she had spent a total of
P31,995.00 for the vigil and funeral expenses of her daughter.  The trial court
awarded her the sum of P35,000.00.  Only the amount of P15,000.00 for
funeral expenses, however, was duly receipted.  Renato Valdez, father of
Gerardo, stated that the family had spent a total of P19,085.30 for Gerardo’s
wake and funeral.  The trial court awarded him P20,285.00 but the receipted
amount, however, totaled only P7,785.30.  The awards made by the court a
quo must thus be reduced correspondingly.  Relative to the award of
damages for loss of earning capacity to the heirs of Perlita Ferrer, using the
formula in People vs. Nullan, the entitlement thereto should be modified by
reducing it to the amount of P1,632,000.00 from P2,040,000.00.  The award
of moral damages by the trial court in favor of the heirs of Gerardo, being
justified, can be sustained.
WHEREFORE, the decision, dated 20 April 1995, of the Regional Trial
Court of Lingayen, Pangasinan, Branch 38, is MODIFIED thusly:
In Criminal Case No. U-7809, accused-appellant Cipriano De Vera, Sr.,
is found GUILTY of Homicide for the death of Perlita Ferrer y Mamorno and
is sentenced to suffer an indeterminate imprisonment term of from nine (9)
years and one (1) day of prison mayor to fifteen (15) years and six (6)
months of reclusion temporal and ordered to pay the heirs of Perlita Ferrer y
Mamorno civil indemnity ex delicto of P50,000.00, actual damages of
P15,000.00, and P1,632,000.00 for loss of earning capacity.
In Criminal Case No. U-7810, accused-appellant Cipriano De Vera, Sr.,
is found GUILTY of Murder for the death of Gerardo Valdez y Torres and is
sentenced to suffer the penalty of  reclusion perpetua and ordered to pay the
heirs of Gerardo Valdez y Torres civil indemnity ex delicto of P50,000.00 and
actual damages of P7,785.30.  The award of moral damages decreed by the
trial is affirmed.
Criminal Case No. U-7811 is DISMISSED.
Costs against accused-appellant.
SO ORDERED.
 FIRST DIVISION
G.R. No. 133025           February 17, 2000
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
RADEL GALLARDE, accused-appellant.
DAVIDE, JR., C.J.:
This is an appeal from the judgment of the Regional Trial Court of Tayug,
Pangasinan, Branch 51, finding accused-appellant Radel Gallarde 1 (hereafter
GALLARDE) guilty beyond reasonable doubt of the crime of murder in
Criminal Case No. T-1978 and sentencing him to suffer the penalty
of reclusion perpetua and to pay the heirs of Editha Talan (hereafter
EDITHA) the amount of P70,000 as actual damages.2
On 24 June 1997, GALLARDE was charged with the special complex crime
of rape with homicide in an information whose accusatory portion reads as
follows:
That on or about the 6th day of May 1997, in the evening, amidst the
field located at Brgy. Trenchera, [M]unicipality of Tayug, [P]rovince of
Pangasinan, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, and by means of force, violence
and intimidation, did then and there wilfully, unlawfully and
feloniously have sexual intercourse with one EDITHA TALAN, a
minor-10 years of age, against her will and consent, and thereafter,
with intent to kill, cover the nose and mouth of the said minor
resulting to her death and then bury her in the field, to the damage
and prejudice of the heirs of said EDITHA TALAN.3
During the arraignment on 1 September 1997, GALLARDE, with the
assistance of counsel, entered a plea of not guilty. 4 Trial of the case
immediately ensued as the defense waived the holding of the pre-trial
conference.
The witnesses presented by the prosecution were Mario Fernandez, Jaime
Cabinta, Rosy Clemente, Felicisimo Mendoza, Alfredo Cortez, Renato
Fernandez, SPO4 Oscar B. Lopez, and Dr. Perfecto Tebangin. The relevant
and material facts established by their testimonies are faithfully summarized
in the Appellee's Brief as follows:
In the evening of May 26, 1997, at the house of spouses Eduardo
and Elena Talan in Brgy. Trenchea, Tayug, Pangasinan, their
neighbors converged. Among them were appellant Radel Gallarde,
Francisco, Renato, Edwin, all surnamed Fernandez, Romel
Hernandez, Jaime Cabinta, Rosy Clemente, Jon Talen, Noel
Arellaga and Ramil Bargon. Idling by was Editha, 10 year old
daughter of spouses Talan. A fluorescent lamp illuminated them as
they partook beer (TSN dated October 13, 1997, pp. 3-4).
After a while, Roger stood up and invited Jaime and appellant to dine
in the kitchen. As they partook of the meal, appellant suddenly left.
Jaime, too, stepped out of the kitchen to urinate. Outside the house,
he chanced upon appellant and Editha talking to each other. Jaime
whistled at appellant but instead of minding him, the latter sprinted
towards the road leading to his house (Id., pp. 4-6).
Thereafter, Editha entered the kitchen and took hold of a kerosene
lamp. Jaime followed her and asked where she was going. Editha
answered that she would look for appellant. Soon Editha left enroute
to where appellant fled (Id., pp. 7-8).
By 10:00 o'clock that evening, the drinking buddies had dispersed
but Jaime, Francisco, Edwin and Rose regrouped at Renato's place
where they talked and relaxed. Moments later, Roger arrived and
informed them that Editha was missing. Roger asked the group to
help look for her (Id., p. 10).
Elena Talan informed his uncle, Barangay Ex-kagawad Mario
Fernandez, about her daughter's disappearance. The latter, together
with his son Edwin, wife Virginia and nephew Freddie Cortez wasted
no time in joining their neighbors search the houses, dikes and fields
to look for the missing child. The searchers used a lighted rubber tire
(TSN dated Sept. 24, 1997, pp. 8-10 and 24).
When Jaime mentioned that appellant was the last person he saw
talking to Editha, the searchers went back to the house of appellant.
About 7 meters away from appellant's house, one of the searchers,
Alfredo Cortez, found Editha's left foot slipper (TSN dated October
22, 1997, pp. 4-6). Suddenly, Edwin Fernandez announced: "Tata,
Radel is here!" pointing to the toilet about 6 meters away from
appellant's house. The searchers found appellant squatting with his
short pants. His hands and knees were covered with soil. When
confronted by ex-kagawad Hernandez why he was there, appellant
answered he was relieving himself (Id., pp. 11-16).
Asked where Editha was, appellant replied: "I do not know, I did not
do anything to her." When told — "according to Jimmy, you were with
Editha." appellant responded "I let her go and brought her back to
the dike and let her go home." To the next question, "where did you
come from since a while a go you were not yet in this toilet?"
appellant answered "I was with Kiko, I was asleep in their house.
One of the searchers Mario Bado, got angry and countered that
appellant's statement was impossible because Kiko was with him
drinking (Id., pp. 16-20).
After the confrontation at the toilet, Ex-kagawad Fernandez brought
appellant to Brgy. Captain Felicisimo Mendoza, informing the latter
that appellant was the last person seen talking with the missing child.
Fernandez then rejoined the searchers (Id., pp. 21-22).
Back in the field, Virginia Fernandez tripped on a wet ground. As she
reached for her slipper, she saw Editha's right foot slipper (the other
one was earlier found near the house of appellant) (Id., pp. 23-24).
Around 3 meters farther from Editha's right foot slipper; another
slipper was found. It was old, 8 to 9 inches in length and appellant
was seen wearing it in the morning of that day (TSN dated Sept. 25,
1997, pp. 25).
The searchers, thereafter, noticed disheveled grasses. Along the
way, they saw a wide hole among the disheveled grass. Ex-kagawad
Fernandez accidentally dropped the lighted rubber tire and as his
nephew Freddie picked it up, the latter exclaimed: "Uncle, look at this
loose soil!" Ex-kagawad Fernandez forthwith scratched some earth
aside and then Editha's hand pitted out. The Fernandez screamed in
terror (Id., pp. 5-6).
Meantime, Barangay Captain Mendoza heard shouts saying: "She is
here, she is now here already dead!" Mindful of appellant's safety,
Brgy. Captain Mendoza decided to bring appellant to the municipal
building. On their way though, they met policemen on board a
vehicle. He flagged them down and turned over the person of
appellant, saying: "Here is the suspect in the disappearance of the
little girl. Since you are already here, I am giving him to you" (TSN
dated Oct. 21, 1997, pp. 4-5).
The policemen together with appellant proceeded to where the
people found Editha. One of the policemen shoved more soil aside.
The lifeless Editha was completely naked when she was recovered.
(Id., pp. 9-10)
The cause of Editha's death as revealed in the  post-
mortem  examination showed "suffocation of the lungs as a result
from powerful covering of the nose and mouth, associated with
laceration of the vagina and raptured hymen (Exh. "T", TSN dated
Oct. 23, 1997, pp. 22-23).5
On the other hand, GALLARDE was the lone witness for the defense. He
interposed a denial and the alibi that he was at home with his mother and
brothers at the time the crime occurred. He declared that he is 18 years old,
single, a former construction worker. He knew EDITHA, a neighbor whom he
considered as a sister because she used to come to his house. They never
had a quarrel or misunderstanding. He neither raped not killed Editha. 6
On cross-examination by the prosecutor and to questions propounded by the
court, GALLARDE admitted that he saw Editha on the night of 6 May 1997 in
her parent's house, particularly in the kitchen. He was there because he
joined a group drinking Colt 45 beer, as he was called by Rudio Fernandez.
He drank and had dinner in the kitchen. After dinner he returned to the
drinking place and eventually went home because he was then a little drunk.
He knows Kgd. Mario Fernandez, but after he left the Talan residence he did
not see Kgd. Fernandez anymore. Kgd. Fernandez saw him inside his
(Gallarde's) toilet on the night of May 6; thereafter Fernandez took him to the
barangay captain and later he was turned over to the PNP at Camp Narciso
Ramos. The police informed him that he was a suspect in the rape and killing
of Editha Talan, and he told them that he did not commit the crime. At the
Talan residence he was wearing short pants and rubber slippers. Fernandez
asked him at the police headquarters to pull down his shorts and he
complied. He was then wearing briefs with a hemline that was a little loose.
He was informed that a cadaver was recovered near his house. When he
was asked questions while in police custody, he was not represented by any
lawyer.
GALLARDE further declared on cross-examination and on questions by the
court that he considered Editha Talan as a sister and her parents also treated
him in a friendly manner. When he came to know that Editha's parents
suspected him of the crime, he was still on friendly terms with them.
However, he did no go to them to tell them he was innocent because they
brandished a bolo in anger.
Finally, he testified that in the evening of May 6 he came to know that Editha
died. She was still alive when he was drinking at the back of the Talan house
and left for home. From the time he arrived, he never left again that night,
and his mother and brothers knew it for a fact.7
On 12 February 1998, the trial court rendered a decision convicting
GALLARDE of the crime of murder only, not of the complex crime of rape
with homicide because of the lack of proof of carnal knowledge. It observed:
Exh. "T" and Dr. Tebangin's testimony thereon show that the late
Editha Talan sustained slit wounds inflicted as a means of
suffocating her to death, a laceration of the lower portion of her
vagina, and a ruptured hymen. What allegedly oozed from her vagina
was blood, coupled with dirt. Had then been observed the presence
of even just a drop of seminal fluid in or around her vagina, the Court
would readily conclude that the laceration and rupture resulted from
phallic intrusion. Without such observation, however, "carnal
knowledge" as element of rape would be an open question.
The trial court did not appreciate the alternative circumstance of intoxication
either as a mitigating or aggravating circumstance pursuant to Article 15 of
the Revised Penal Code because GALLARDE's alleged inebriation on the
night of 6 May 1997, was not satisfactorily proven.
As to the civil aspect of the case, the trial court considered the stipulation of
the parties on 27 October 1997 fixing a liquidated amount of P70,000 as
actual damages, and leaving the matter of moral damages to the discretion of
the court. The trial court was not inclined to award moral damages because
the "evidence before it tends to disclose that on the night of 6 May 1997,
before she died, Editha was a much-neglected child."
Accordingly, in its decision8 of 12 February 1998, the trial court decreed:
WHEREFORE, his guilt having been established beyond a
reasonable doubt, the Court hereby convicts the accused RADEL
GALLARDE Y HERMOSA of the crime of MURDER, and sentences
him to suffer the penalty of reclusion perpetua and to indemnify the
heirs of the late Editha Talan in the negotiated sum of P70,000.00. 9
His motion for reconsideration,10 having been denied by the trial court in its
Resolution11 of 28 February 1998, GALLARDE seasonably appealed to us.
We accepted the appeal on 9 September 1998.
In his Appellant's Brief filed on 16 March 1999, GALLARDE alleges that the
trial court committed the following errors:
1. In convicting [him] of the crime of murder in an information for rape
with homicide.
2. In concluding that the prosecution has proven beyond reasonable
doubt that [he] was responsible for the death of Editha Talan.
3. In not acquitting [him] on the ground of notches of proof beyond
reasonable doubt.12
We sustain GALLARDE's contention that the trial court erred in convicting
him of murder in an information charging him of rape with homicide. A
reading of the accusatory portion of the information shows that there was no
allegation of any qualifying circumstance. Although it is true that the term
"homicide" as used in special complex crime of rape with homicide is to be
understood in its generic sense, and includes murder and slight physical
injuries committed by reason or on the occasion of rape, 13 it is settled in this
jurisdiction that where a complex crime is charged and the evidence fails to
support the charge as to one of the component offense, the accused can be
convicted of the other.14 In rape with homicide, in order to be convicted of
murder in case the evidence fails to support the charge of rape, the qualifying
circumstance must be sufficiently alleged and proved. Otherwise, it would be
a denial of the right of the accused to be informed of the nature of the offense
with which he is charged.15 It is fundamental that every element of the
offense must be alleged in the complaint or information. The main purpose of
requiring the various elements of a crime to be set out in an information is to
enable the accused to suitably prepare his defense. He is presumed to have
no independent knowledge of the facts that constitute the offense. 16
In the absence then in the information of an allegation of any qualifying
circumstance, GALLARDE cannot be convicted of murder. An accused
cannot be convicted of an offense higher than that with which he is charged
in the complaint or information under which he is tried. It matters not how
conclusive and convincing the evidence of guilt may be, but an accused
cannot be convicted of any offense, unless it is charged in the complaint or
information for which he is tried, or is necessarily included in that which is
charged. He has a right to be informed of the nature of the offense with which
he is charged before he is put on trial. To convict an accused of a higher
offense than that charged in the complaint or information under which he is
tried would be an unauthorized denial of that right. 17
Nevertheless, we agree with the trial court that the evidence for the
prosecution, although circumstantial, was sufficient to establish beyond
reasonable doubt the guilt of GALLARDE for the death of EDITHA.
Direct evidence of the commission of a crime is not the only matrix
wherefrom a trial court may draw its conclusion and finding of guilt. 18 The
prosecution is not always tasked to present direct evidence to sustain a
judgment of conviction; the absence of direct evidence does not necessarily
absolve an accused from any criminal liability. 19 Even in the absence of direct
evidence, conviction can be had on the basis of circumstantial evidence,
provided that the established circumstances constitute an unbroken chain
which leads one to one fair and reasonable conclusion which points to the
accused, to the exclusion of all others, as the guilty person, i.e., the
circumstances proved must be consistent with each other, consistent with the
hypothesis that the accused is guilty, and at the same time inconsistent with
any other hypothesis except that of guilty.20
The rules on evidence and precedents sustain the conviction of an accused
through circumstantial evidence, as long as the following requisites are
present: (1) there must be more than one circumstance; (2) the inference
must be based on proven facts; and (3) the combination of all circumstances
produces a conviction beyond doubt of the guilt of the accused. 21
The importance of circumstantial evidence is more apparent in the
prosecution of cases of rape, where it is homicide. The nature of the crime of
rape, where it is usually only the victim and the rapist who are present at the
scene of the crime, makes prosecutions for the complex crime of rape with
homicide particularly difficult since the victim can no longer testify against the
perpetrator of the crime. In these cases pieces of the evidence against the
accused are usually circumstantial.22
The circumstantial evidence in the case at bar, when analyzed and taken
together, leads to no other conclusion than that GALLARDE, and no other
else, killed EDITHA and that he is guilty therefor. We quote with approval the
lower court's enumeration of the circumstantial evidence in this case:
1. Gallarde, 18, and Editha, 10, were neighbors and friends, even as
she used to frequent his place.
2. Both were at the Talan residence on the night of May 6, 1997
while neighbors indulged themselves in beer.
3. Among said neighbors Cabinta saw them hand in hand by the
toilet situated five (5) meters east of the Talan kitchen.
4. After Cabinta whistled he saw Gallarde run home towards north
after letting go of Editha's hands. Neighbor Clemente also noticed
that Gallarde disappeared, and that Editha returned to the kitchen.
5. Cabinta followed Editha back to the kitchen, and saw her holding a
kerosene lamp. She told him that she was going to look for "Dalpac,"
and off she went in the same direction Gallarde took.
6. Gallarde wore short pants and rubber slippers at the drinking
place. Subsequently he was seen wearing shorts in his own toilet.
7. At past 10:00 in the evening during an intensive search for the
then missing Editha, her lifeless body was found in a shallow grave
situated some distance behind Gallarde's residence.
8. Before Editha's body was discovered, a searcher found a girl's
slipper (Exh. "B"), 5-6 inches long, among thickets seven meters
away from Gallarde's house.
9. Another searcher saw a second slipper (Exh. B-1), of the same
color and size as the first one. Both slippers were Editha's, the
searchers recalled.
10. A third rubber slipper (Exh. "C") was thereafter found in the field,
near Exh. "B-1." It was an old slipper, 8-9 inches long and with a hole
at the rear end.
11. Soil stuck to each one of the three slippers.
12. Gallarde was not at home when searchers went to look for him
there, after Cabinta told them that Editha was last seen with
Gallarde.
13. When Gallarde was discovered squatting in the dark toilet behind
his house and beside the thickets, his shorts were up and on. His
hands and knees were soiled.
14. At the toilet he was asked the innocent question of where Editha
was and he answered revealingly, thus: "I did not do anything to her"
and "I let her go and brought her back to the dike and let her go
home."
15. When asked where he had been, as the toilet was first seen
empty, Gallarde said he was with Kiko and he slept at the latter's
house, which answer Mario Bado promptly refuted saying, "Vulva of
your mother. . . Kiko was with me drinking." Bado and Kiko were not
at the place of the Talans that night.
16. Yanked out of the dark toilet near his own house, Gallarde joined
Kgd. Mario Fernandez sans protest.
 17. Dr. Tebangin found on Editha's cheeks two slit wounds, each
being an inch away from her nostrils. Both wounds were fresh and
reddish.
From the lower portion of Editha's vagina blood oozed, accompanied
by dirt.
Her hymen was ruptured and was still bleeding.
The medico-legal concluded that there must have been a forceful
covering of Editha's nose and mouth because of the presence of the
slit wounds on both sides of her face, and that in 30 seconds
unconsciousness and weakening resulted, with the vaginal injuries
contributing to her death.23
As to the crime of rape, there is much to be desired with respect to the
prosecution's evidence therefor, but not for the reason adduced by the trial
court, namely, the absence of spermatozoa in EDITHA's private part and
thereabout. It is well settled that the absence of spermatozoa in or around the
vagina does not negate the commission of rape. 24 Our doubt on the
commission of rape is based on the fact that there is at all no convincing
proof that the laceration of the vagina and the rupture of the hymen of
EDITHA were caused in the course of coitus or by a male organ. Our
meticulous reading of the testimony of Dr. Tebangin disclosed that he was
never asked if the laceration and the rupture could have been caused by the
penis of a human being. Needless to state, these could have been caused by
any object other than the penis of a person.
We cannot sustain the contention of GALLARDE that he was not positively
identified as the assailant since there was no eyewitness to the actual
commission of the crime. It does not follow that although nobody saw
GALLARDE in the act of killing EDITHA, nobody can be said to have
positively identified him. Positive identification pertains essentially to proof of
identity and not  per se to that of being an eyewitness to the very act of
commission of the crime. There are two types of positive identification. A
witness may identity a suspect or accused in a criminal case as the
perpetrator of the crime as an eyewitness to the very act of the commission
of the crime. This constitutes direct evidence. There may, however, be
instances where, although a witness may not have actually seen the very act
of commission of a crime, he may still be able to positively identify a suspect
or accused as the perpetrator of a crime as for instance when the latter is the
person or one of the persons last seen with the victim immediately before
and right after the commission of the crime. This is the second type of
positive identification, which forms part of circumstantial evidence, which,
when taken together with other pieces of evidence constituting an unbroken
chain, leads to only fair and reasonable conclusion, which is that the accused
is the author of the crime to the exclusion of all others. If the actual
eyewitnesses are the only ones allowed to possibly positively identify a
suspect or accused to the exclusion of others, then nobody can ever be
convicted unless there is an eyewitness, because it is basic and elementary
that there can be no conviction until and unless an accused is positively
identified. Such a proposition is absolutely absurd, because it is settled that
direct evidence of the commission of a crime is not the only matrix wherefrom
a trial court may draw its conclusion and finding of guilt. 25 If resort to
circumstantial evidence would not be allowed to prove identity of the accused
on the absence of direct evidence, then felons would go free and the
community would be denied proper protection.
As discussed above, the circumstantial evidence as established by the
prosecution in this case and enumerated by the trial court positively
established the identity of GALLARDE, and no one else, as the person who
killed EDITHA.
We cannot agree with the trial court's rejection of the photographs (Exhibits
"I," "J" and "K") taken of GALLARDE immediately after the incident on the
ground that "the same were taken while [GALLARDE] was already under the
mercy of the police." The taking of pictures of an accused even without the
assistance of counsel, being a purely mechanical act, is not a violation of his
constitutional right against self-incrimination.
The constitutional right of an accused against self-incrimination 26 proscribes
the use of physical or moral compulsion to extort communications from the
accused and not the inclusion of his body in evidence when it may be
material. Purely mechanical acts are not included in the prohibition as the
accused does not thereby speak his guilt, hence the assistance and guiding
hand of counsel is not required.27 The essence of the right against self-
incrimination is testimonial compulsion, that is, the giving of evidence against
himself through a testimonial act. 28 Hence, it has been held that a woman
charged with adultery may be compelled to submit to physical examination to
determine her pregnancy;29 and an accused may be compelled to submit to
physical examination and to have a substance taken from his body for
medical determination as to whether he was suffering from gonorrhea which
was contracted by his victim;30 to expel morphine from his mouth;31 to have
the outline of his foot traced to determine its identity with bloody
footprints;32 and to be photographed or measured, or his garments or shoes
removed or replaced, or to move his body to enable the foregoing things to
be done.33
There is also no merit in GALLARDE's argument that the failure of the
prosecution to prove beyond reasonable doubt the place and time of the
commission of the crime is fatal and will justify his acquittal.
The place, time and date of the commission of the offense are not essential
elements of the crime of rape with homicide. The gravamen of the offense is
the carnal knowledge of a woman and that on the occasion of or as a reason
thereof, the crime of homicide was committed. Conviction may be had on
proof of the commission of the crime provided it appears that the specific
crime charged was in fact committed prior to the date of the filing of the
complaint or information, within the period of the statute of limitation, and
within the jurisdiction of the court.34
The allegation of the place of commission of the crime in the complaint or
information is sufficient if it can be understood therefrom that the offense was
committed or some of the essential ingredients thereof occurred at some
place within the jurisdiction of the court. 35 The rule merely requires that the
information shows that the crime was committed within the territorial
jurisdiction of the court. The Court may even take judicial notice that said
place is within its jurisdiction.36
As to the time of the commission of the crime, the phrase "on or about"
employed in the information does not require the prosecution "to prove any
precise date or time," but may prove any date or time which is not so remote
as to surprise and prejudice the defendant." 37
Contrary to the claim of GALLARDE, the prosecution was able to establish
the proximate time of the commission of the crime, which was sometime
between 9:00 p.m., when GALLARDE left the house of Talan followed by
EDITHA, and 10:30 p.m., when the body of EDITHA was found. This was
further corroborated by the examining physician who testified, on the basis of
the degree of rigor mortis, that EDITHA died more or less, at 10:00 p.m. of 6
May 1997.38
Likewise, GALLARDE's alibi and bare denial deserve no consideration. He
did not present witnesses who could confirm his presence in his house. No
member of his family corroborated him on this matter. The defenses of denial
and alibi, if unsubstantiated by clear and convincing evidence, are negative
and self-serving, deserve no weight in law, and cannot be given evidentiary
value over the testimony of credible witnesses who testify on affirmative
matters.39
Moreover, even assuming that GALLARDE's claim is true, his stay in his
house did not preclude his physical presence at the locus criminis or its
immediate vicinity. The place where the body of EDITHA was found buried
was a few meters from his house, the place pointed to in the alibi and can be
reached in a short while. For the defense of alibi to prosper, the requirements
of time and place must be strictly met. It is not enough to prove that the
accused was somewhere else when the crime was committed, he must
demonstrate that it was physically impossible for him to have been at the
scene of the crime at the time of its commission.40
Besides, no evil motive has been established against the witnesses for the
prosecution that might prompt them to incriminate the accused or falsely
testify against him. It is settled that when there is no showing that the
principal witnesses for the prosecution were actuated by improper motive, the
presumption is that the witnesses were not so actuated and their testimonies
are thus entitled to full faith and credit. 41 Testimonies of witnesses who have
no motive or reason to falsify or perjure their testimonies should be given
credence.42
With respect to GALLARDE's claim that he was arrested without warrant,
suffice it to say that any objection, defect, or irregularity attending an arrest
must be made before the accused enters his plea. 43 The records show no
objection was ever interposed prior to arraignment and trial. 44 GALLARDE's
assertion that he was denied due process by virtue of his alleged illegal
arrest is negated by his voluntary submission to the jurisdiction of the trial
court, as manifested by the voluntary and counsel-assisted plea he entered
during arraignment and by his active participation in the trial thereafter. 45 It is
settled that any objection involving a warrant of arrest or procedure in the
acquisition by the court of jurisdiction over the person of an accused must be
made before he enters his plea, otherwise the objection is deemed
waived.46 It is much too late in the day to complain about the warrantless
arrest after a valid information had been filed and the accused arraigned and
trial commenced and completed and a judgment of conviction rendered
against him.47 Verily, the illegal arrest of an accused is not sufficient cause for
setting aside a valid judgment rendered upon a sufficient complaint after trial
free from error; such arrest does not negate the validity of the conviction of
the accused.48
Homicide, which we find to be the only crime committed by GALLARDE, is
defined in Article 249 of the Revised Penal Code and is punished
with reclusion temporal. In the absence of any modifying circumstance, it
shall be imposed in its medium period. GALLARDE is entitled to the benefits
of the Indeterminate Sentence Law. Accordingly, he can be sentenced to
suffer an indeterminate penalty ranging from ten (10) years of the medium
period of prision mayor as minimum to seventeen (17) years and four (4)
months of the medium period of reclusion temporal as maximum.
As to the civil aspect of the case, the parties agreed on P70,000 as liquidated
damages. This should be construed as actual damages. However, as
indemnity for death, the additional sum of P50,000, per current case law,
should be awarded.
WHEREFORE, the assailed decision of the Regional Trial Court, Branch 51,
Tayug, Pangasinan, in Criminal Case No. T-1978 finding accused-appellant
RADEL GALLARDE guilty of the crime of murder is hereby modified. As
modified, RADEL GALLARDE is hereby found guilty beyond reasonable
doubt, as principal, of the crime of Homicide, defined under Article 249 of the
Revised Penal Code, and is hereby sentenced to suffer an indeterminate
penalty ranging from ten (10) years of the medium period of of prision
mayor as minimum to seventeen (17) years and four (4) months of the
medium period of reclusion temporal as maximum, and to pay the heirs of
the victim, Editha Talan, the sum of P70,000 as liquidated actual damages
and P50,000 as indemnity for the death of Editha Talan.

Costs against accused-appellant RADEL GALLARDE in both

instances.1âwphi1.nêt

SO ORDERED.

Puno, Kapunan, Pardo and Ynares-Santiago, JJ., concur.

 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-18510             January 31, 1964
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellant,
vs.
ALBERTO M. SABBUN, defendant-appellee.
Office of the Solicitor General for plaintiff-appellant.
Alfredo J. Donato for defendant-appellee.
LABRADOR, J.:
This is an appeal prosecuted by the Republic against an order of the Court of
First Instance of Cagayan, Hon. Roberto Zurbano, presiding, sustaining a
motion of the accused-appellee in the above-entitled case to quash the
information with respect to collections made by accused-appellee four years
prior to January 19, 1959, the date of filing of the information.
On January 19, 1959, the fiscal filed an information accusing the accused-
appellee of violation of Republic Act No. 145, as follows:
The undersigned accuses Alberto M. Sabbun for Violation of
Republic Act No. 145, committed as follows:
That in the month of December, 1949, and subsequent thereafter, in
the municipality of Abulug, province of Cagayan, and within the
jurisdiction of this Honorable Court, the said accused Alberto M.
Sabbun, being the one who helped and assisted the spouses Benito
Dacquioag, (now deceased) and Juana Acluba Vda. de Dacquioag,
in the preparation, presentation and prosecution of their CLAIMS for
benefits under the laws of the United States administered by the
United States Veteran Administration, Manila, Philippines, in
connection with the death of their son Veteran Federico Dacquioag,
during the last World War, did then and there willfully, unlawfully and
feloniously, directly solicit, charging and receive as his fee and
compensation for his services as follows, to wit: the amount of
P600.00 sometimes in December, 1949, from the two checks
received by the said spouses; the total amount of P1,480.00 as
deductions taken from the monthly pensions of said spouses
beginning January, 1950, to February, 1956, inclusive; and the
amount of P170.00 as deduction taken from the monthly pensions of
the surviving spouse Juana Acluba Vda. de Dacquioag, beginning
March, 1956, to September, 1957, inclusive; which total amount of
P20.00 each for every claim as authorized by Republic Act No. 145,
to the damage and prejudice of the said spouses Benito Dacquioag
and Juana Acluba Vda. de Dacquioag in the total amount of
P2,210.00, representing the balance thereof after deducting the sum
of P40.00 as total fees for the two claims of the said spouses.
Upon the filing of the above information, counsel for the accused moved to
quash it, alleging that the criminal action charged has been extinguished and
that such information charges more than one offense. The court sustained
the motion as to collections made 4 years prior to the filing of the information
but denied it as to those made within the four-year period. Against this order
the Republic has appealed, contending that the offense charged in the
information is a continuing offense and the prescriptive period for the offense
began only from September, 1957 when the crime was first discovered, and
that in any case prescriptive period is 8 years and not 4 years as found by
the trial court.
Without considering the other legal issues raised in the appeal. We hold that
the offense charged is a continuing offense. The first collection of P600 made
in 1949 is an integral part of the offense committed, and so are the
collections thereafter up to September, 1957. The collections made on
different dates, i.e., P600 in December 1949; P1,480 from January, 1950 to
February, 1956; the amount of P170 from March, 1956 to September, 1957;
are all part of the fees agreed upon in compensation for the service rendered
in filing the claim, and collecting the pensions received by the offended party
from time to time. The periodical collections form part of a single criminal
offense of collecting a fee which is more than the prescribed amount fixed by
the law. The collections were impelled by the same motive, that of collecting
fees for services rendered, and all acts of collection were made under the
same criminal impulse (People vs. Lawas, G.R. No. L-7618, June 30, 1955).
Only one offense was, therefore, committed and since the last act of
collection was made within the period of prescription, the offense has not
prescribed as yet at the time of the filing of the information. The offense may
not be considered divided into different acts, each act subject to prescription
independently of the others.1äwphï1.ñët
WHEREFORE, the order appealed from is hereby set aside and the court
below is hereby ordered to proceed with the case in accordance herewith.
Without costs. So ordered.
Bengzon, C.J., Padilla, Bautista Angelo, Concepcion, Reyes, J.B.L., Barrera,
Paredes, Dizon, Regala and Makalintal, JJ., concur.
 Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-41054 November 28, 1975
JOSE L. GAMBOA and UNITS OPTICAL SUPPLY COMPANY, petitioners,
vs.
COURT OF APPEALS and BENJAMIN LU HAYCO, respondents.
MARTIN, J.:
This is a petition to review on certiorari the judgment of the respondent Court
of Appeals in CA-G.R. No. SP-03877, promulgated on July 17, 1975, which
We treat as special civil action (SC Resolution of September 2, 1975),
involving the proper appreciation of the rule on plurality of crimes, otherwise
known as "concursus delictuorum", and the theory of "continuous crime".
The private respondent Benjamin Lu Hayco was a former employee of
petitioner company in its optical supply business at Sta. Cruz, Manila. On
January 5, 1973, one hundred twenty-four (124) complaints of estafa under
Article 315, para. 1-b of the Revised Penal Code were filed against him by
the petitioner company with the Office of the City Fiscal of Manila. After the
procedural preliminary investigation, the Office of the City Fiscal filed
seventy-five (75) cases of estafa against private respondent before the City
Court of Manila. Except as to the dates and amounts of conversions, the 75
informations commonly charge that "... the said accused, being then an
employee of the Units Optical Supply Company ..., and having collected and
received from customers of the said company the sum of ... in payment for
goods purchased from it, under the express obligation on the part of the said
accused to immediately account for and deliver the said collection so made
by him to the Units Optical Supply Company or the owners thereof ..., far
from complying with his said aforesaid obligation and despite repeated
demands made upon him ... did then and there ... misappropriate,
misapply and convert the said sum to his own personal use and benefit by
depositing the said amount in his own name and personal account with the
Associated Banking Corporation under Account No. 171 (or with the
Equitable Banking Corporation under Account No. 707), and thereafter
withdrawing the same ... ."
A civil action for accounting (docketed as Civil Case No. 89373 of the Court
of First Instance of Manila) was likewise filed by Lu Chiong Sun, the owner of
the Units Optical Supply Company, complaining that during his hospital
confinement from September 27, 1972 to October 30, 1972, private
respondent initiated discharging the business functions and prerogatives of
the company. And to paint a shade of validity to this exercise of powers,
private respondent, thru fraud, deceit and machinations duped Lu Chiong
Sun into affixing his signature and thumbprint on a general power of attorney
in his (private respondent's) favor. With the use of this deed, private
respondent closed the accounts of Lu Chiong Sun with the Equitable Banking
Corporation and, thereafter, opened accounts in his own name with the same
bank and with the Associated Banking Corporation.
While the criminal suits in particular were pending trial on the merits before
the twelve branches of the City Court of Manila, 1 private respondent
commenced on May 15, 1974 a petition for prohibition with preliminary
injunction before the Court of First Instance of Manila (Branch XV) against
the petitioners herein and the City Court Judges of Manila, claiming that the
filing, prosecution and trial of the seventy-five (75) estafa cases against him
is not only oppressive, whimsical and capricious, but also without or in
excess of jurisdiction of the respondents City Fiscal and the City Court
Judges of Manila. Private respondent asserts that all the indictments narrated
in the seventy-five (75) informations were mere components of only one
crime, since the same were only impelled by a single criminal resolution or
intent. On October 31, 1974, the lower court dismissed the petition on the
ground that the series of deposits and the subsequent withdrawals thereof
involved in the criminal cases were not the result of only one criminal impulse
on the part of private respondent.
As a consequence, private respondent Benjamin Lu Hayco appealed to the
Court of Appeals. On July 17, 1975, the Appellate Court reversed the order of
the lower court and granted the petition for prohibition. It directed the
respondent City Fiscal "to cause the dismissal of the seventy-five (75)
criminal cases filed against petitioner-appellant, to consolidate in one
information all the charges contained in the seventy-five (75) informations
and to file the same with the proper court." The raison d'etre of the ruling of
the Court of Appeals is that:
Where the accused, with intent to defraud his employer, caused the latter to
sign a document by means of deceit and false representation, which
document turned out to be a general power of attorney, and with the use of
said document he closed the accounts of his employer in two banks and at
the same time opened in his name new accounts in the same banks, and
then made collections from the customers of his employer, depositing them in
the bank accounts in his name, the series of deposits made by him which he
later withdrew for his own use and benefit, constitutes but one crime of
estafa, there being only one criminal resolution and the different acts
performed being aimed at accomplishing the purpose of defrauding his
employer."
We thus readily recognize that the singular question in this present action is
whether or not the basic accusations contained in the seventy-five (75)
informations against private respondent constitute but a single crime of
estafa.
It is provided in Article 48 of our Revised Penal Code, as amended by Act
No. 4000, that "(w)hen 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." The intention of the Code in installing this
particular provision is to regulate the two cases of concurrence or plurality of
crimes which in the field of legal doctrine are called "real plurality" and "ideal
plurality".2 There is plurality of crimes or "concurso de delitos" when the actor
commits various delictual acts of the same or different kind. "Ideal plurality"
or "concurso ideal" occurs when a single act gives rise to various infractions
of law. This is illustrated by the very article under consideration: (a) when a
single act constitutes two or more grave or less grave felonies (described as
"delito compuesto" or compound crime); and (b) when an offense is a
necessary means for committing another offense (described as "delito
complejo" or complex proper). "Real plurality" or "concurso real", on the other
hand, arises when the accused performs an act or different acts with distinct
purposes and resulting in different crimes which are juridically independent.
Unlike "ideal plurality", this "real plurality" is not governed by Article 48. 3
Apart and isolated from this plurality of crimes (ideal or real) is what is known
as "delito continuado" or "continuous crime". This is a single crime consisting
of a series of acts arising from a single criminal resolution or intent not
susceptible of division. For Cuello Calon, when the actor, there being unity of
purpose and of right violated, commits diverse acts, each of which, although
of a delictual character, merely constitutes a partial execution of a single
particular delict, such concurrence or delictual acts is called a "delito
continuado". In order that it may exist, there should be "plurality of acts
performed separately during a period of time; unity of penal provision
infringed upon or violated and unity of criminal intent and purpose, which
means that two or more violations of the same penal provision are united in
one and the same intent leading to the perpetration of the same criminal
purpose or aim."4
It is not difficult to resolve whether a given set of facts constitutes a single act
which produces two or more grave or less grave offenses or a complex crime
under the definition of Article 48. So long as the act or acts complained of
resulted from a single criminal impulse it is usually held to constitute a single
offense to be punished with the penalty corresponding to the most serious
crime, imposed in its maximum period. 5, The test is not whether one of the
two offenses is an essential element of the other. 6 In People v. Pineda  ,7 the
court even expressed that "to apply the first half of Article 48, ... there must
be singularity of criminal act; singularity of criminal impulse is not written into
the law." Prior jurisprudence holds that where the defendant took the thirteen
cows at the same time and in the same place where he found them grazing,
he performed but one act of theft. 8 Or, the act of taking the two roosters, in
response to the unity of thought in the criminal purpose on one occasion,
constitutes a single crime of theft. There is no series of acts committed for
the accomplishment of different purposes, but only of one which
was consummated, and which determines the existence of only one crime.
The act of taking the roosters in the same place and on the same occasion
cannot give rise to two crimes having an independent existence of their own,
because there are not two distinct appropriations nor two intentions that
characterize two separate crimes. 9
In the case before Us, the daily abstractions from and diversions of private
respondent of the deposits made by the customers of the optical supply
company from October 2, 1972 to December 30, 1972, excluding Saturdays
and Sundays, which We assume ex hypothesi, cannot be considered as
proceeding from a single criminal act within the meaning of Article 48. The
abstractions were not made at the same time and on the same occasion, but
on variable dates. Each day of conversion constitutes a single act with an
independent existence and criminal intent of its own. All the conversions are
not the product of a consolidated or united criminal resolution, because each
conversion is a complete act by itself. Specifically, the abstractions and the
accompanying deposits thereof in the personal accounts of private
respondent cannot be similarly viewed as "continuous crime". In the above
formulation of Cuello Calon, We cannot consider a defalcation on a certain
day as merely constitutive of partial execution of estafa under Article 315,
para. 1-b of the Revised Penal Code. As earlier pointed out, an individual
abstraction or misappropriation results in a complete
execution or consummation of the delictual act of defalcation. Private
respondent cannot be held to have entertained continously the same criminal
intent in making the first abstraction on October 2, 1972 for the subsequent
abstractions on the following days and months until December 30, 1972, for
the simple reason that he was not possessed of any fore-knowledge of any
deposit by any customer on any day or occasion and which would pass on to
his possession and control. At most, his intent to misappropriate may arise
only when he comes in possession of the deposits on each business day but
not in futuro, since petitioner company operates only on a day-to-day
transaction. As a result, there could be as many acts of misappropriation as
there are times the private respondent abstracted and/or diverted the
deposits to his own personal use and benefit. Thus, it may be said that the
City Fiscal had acted properly when he filed only one information for every
single day of abstraction and bank deposit made by private
respondent. 10 The similarity of pattern resorted to by private respondent in
making the diversions does not affect the susceptibility of the acts committed
to divisible crimes.
Apropos is the case of People v. Cid, 11 where the Court ruled that the
malversations as well as the falsifications in the months of May, June, July
and August 1936 imputed to the accused "were not the result of only one
resolution to embezzle and falsify, but of four or as many abstractions or
misappropriations had of the funds entrusted to his care, and of as many
falsifications also committed to conceal each of said case. There is nothing of
record to justify the inference that the intention of the appellant when he
committed the malversation in May, 1936 was the same intention which
impelled him to commit the other malversations in June, July, and August."
The ruling holds true when the acts of misappropriation were committed on
two different occasions, the first in January, 1955 to December, 1955, and
the second in January, 1956 to July, 1956. It cannot be pretended that when
the accused disposed of the palay deposit in January, 1955 to December,
1955, he already had the criminal intent of disposing what was to be
deposited in January, 1956 to July, 1956. 12 There is no synonymy between
the present case and that of People, v. Sabbun, 13 where the Court held that
the illegal collections made on different dates, i.e., December, 1949; January
1950 to February 1956; March 1956 to September 1957 constitutes a
"continuing offense", because the said collections were "all part of the fees
agreed upon in compensation for the service" to be rendered by the accused
Sabbun in filing the claim of the spouses Dacquioag for U.S. Veterans benefit
and collecting the pensions received by the widow from time to time. "The
periodical collections form part of a single criminal offense of collecting a fee
which is more than the prescribed amount fixed by the law" and "were
impelled by the same motive, that of collecting fees for services rendered."
As We have said, the various acts of defalcation perpetrated by private
respondent in the present case from October 2, 1972 to December 30, 1972
are susceptible of division with separate criminal intents.
The respondent Court of Appeals harps upon the act of private respondent in
allegedly inducing, with intent to defraud, Lu Chiong Sun "to sign a
document by means of deceit and false representation, which document
turned out to be a general power of attorney" and with the use of which, he
closed the accounts of the latter in two banks, at the same time opening in
his name new accounts in the same banks, for its conclusion that the acts
complained of against private respondent constitute one continuous crime of
estafa. It is striking to note, however, that the accusatory pleadings against
private respondent are founded on Article 315, para. 1-b of the Revised
Penal Code, which defines and penalizes estafa by conversion or
misappropriation. In this form of estafa, fraud is not an essential
element. 14 According to Groizard "impudence, barefacedness covetousness,
and disloyalty employed in taking advantage of an opportunity take here the
place formerly occupied by deceit." 15 "Fraudulent intent" in committing the
conversion or diversion is "very evidently not a necessary element of the
form of estafa here discussed; the breach of confidence involved in the
conversion or diversion of trust funds takes the place of fraudulent intent and
is in itself sufficient. The reason for this is obvious: Grave as the offense is,
comparatively few men misappropriate trust funds with the intention of
defrauding the owner; in most cases the offender hopes to be able to restore
the funds before the defalcation is discovered. We may say in passing that
the view here expressed is further strengthened by the fact that of the nine
paragraphs of Article 535, the paragraph here under discussion is the only
one in which the words "fraud", or "defraud" do not occur." 16 In other words,
the alleged act of private respondent in causing, with intent to defraud, Lu
Chiong Sun to affix his signature and thumbprint on the general power of
attorney is immaterial and ineffective insofar as the charges of conversions
are concerned. If at all, the said document may serve only the purpose of
closing the accounts of Lu Chiong Sun with the banks and nothing more.
Definitely, there is no necessity for it before private respondent could commit
the acts of defalcation. As a matter of fact, private respondent resorted to this
document only on October 17, 1972, or 15 days after he had already
commenced the abstraction on October 2, 1972. 17
The characterization or description of estafa as a continuing offense cannot
be validly seized upon by private respondent as basis for its inference that
the acts of abstraction in question constitute but a single continuing crime of
estafa. The sole import of this characterization is that the necessary elements
of estafa may separately take place in different territorial jurisdictions until the
crime itself is consummated. The moment, however, that the elements of the
crime have completely concurred or transpired, then an individual crime of
estafa has occurred or has been consummated. The term "continuing" here
must be understood in the sense similar to that of "transitory" and is only
intended as a factor in determining the proper venue or jurisdiction for that
matter of the criminal action pursuant to Section 14, Rule 110 of the Rules of
Court. 18 This is so, because "a person charged with a transitory offense may
be tried in any jurisdiction where the offense is part committed. In transitory
or continuing offense in which some acts material and essential to the crime
and requisite to its consummation occur in one province and some in
another, the court of either province has jurisdiction to try the case, it being
understood that the first court taking cognizance of the case will exclude the
other." 19
ACCORDINGLY, the judgment of the Court of Appeals, subject matter of this
proceeding, is hereby reversed and set aside. The temporary restraining
order issued by this Court on August 7, 1975, enjoining the enforcement or
implementation of the said judgment is hereby made permanent. No costs.
SO ORDERED.
Castro (Chairman), Teehankee, Makasiar, Esguerra and Muñoz Palma, JJ.,
concur.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-61388 July 19, 1985
IN THE MATTER OF THE PETITION FOR THE ISSUANCE OF THE WRIT
OF HABEAS CORPUS FOR DR. AURORA PARONG, NORBERTO
PORTUGUESE, SABINO PADILLA, FRANCIS DIVINA GRACIA, IMELDA
DE LOS SANTOS, BENJAMIN PINEDA, ZENAIDA MALLARI, MARIANO
SORIANO, TITO TANGUILIG, LETTY BALLOGAN, BIENVENIDA GARCIA,
EUFRONIO ORTIZ, JR., JUANITO GRANADA and TOM VASQUEZ,
JOSEFINA GARCIA PADILLA, petitioner,
vs.
MINISTER JUAN PONCE ENRILE, GENERAL FABIAN C. VER GENERAL
FIDEL V. RAMOS, and LT. COL. MIGUEL CORONEL, respondents.
Lorenzo Tanada, Jose W. Diokno, Joker P. Arroyo, Efren H. Mercado and
Alexander A. Padilla for petitioner.
RESOLUTION
PER CURIAM:
Garcia Padilla v. Minister Enrile, 1 is an application for the issuance of the writ
of habeas corpus on behalf of fourteen detainees, nine of whom were
arrested on July 6, 1982, 2 another four on July 7, 1982, 3 and the last one on
July 15, 1982. 4 The writ was issued, respondents were required to make a
return, and the case heard on August 26, 1982. 5
In such return, it was alleged: "The detainees mentioned in the petition, with
the exception of Tom Vasquez, who was temporarily released on July 17,
1982, after his arrest on July 15, 1982, are all being detained by virtue of a
Presidential Commitment Order (PCO) issued on July 12, 1982, pursuant to
LOI No. 1211 dated March 9, 1982, in relation to Presidential Proclamation
No. 2045 dated January 17, 1981. The said PCO was issued by President
Ferdinand E. Marcos for violation of P.D. No. 885 ... ." 6
The facts were set forth thus in the opinion of the Court penned by retired
Justice Pacifico de Castro: "At the time of the arrest of the nine (9) of the
fourteen (14) detainees herein on July 6, 1982, records reveal that they were
then having conference in the dining room of Dr. Parong's residence from
10:00 a.m. of that same day. Prior thereto, all the fourteen (14) detainees
were under surveillance as they were then Identified as members of the
Communist Party of the Philippines (CPP) engaging in subversive activities
and using the house of detainee Dr. Aurora Parong in Bayombong, Nueva
Vizcaya, as their headquarters. Caught in flagrante delicto, the nine (9)
detainees mentioned scampered towards different directions leaving on top
of their conference table numerous subversive documents, periodicals,
pamphlets, books, correspondence, stationeries, and other papers, including
a plan on how they would infiltrate the youth and student sector (code-named
YORK). Also found were one (1) .38 cal. revolver with eight (8) live bullets,
nineteen (19) rounds of ammunition for M16 armalite, eighteen thousand six
hundred fifty pesos P l8,650.00) cash believed to be CPP/NPA funds,
assorted medicine packed and ready for distribution, a sizeable quantity of
printing paraphernalia, which were then seized. 7
According to the main opinion of the Court, concurred in full by six other
members: 8 "The function of the PCO is to validate, on constitutional ground,
the detention of a person for any of the offenses covered by Proclamation
No. 2045 which continues in force the suspension of the privilege of the writ
of habeas corpus, if the arrest has been made initially without any warrant. Its
legal effect is to render the writ unavailing as a means of judicially inquiring
into the legality of the detention in view of the suspension of the privilege of
the writ. The grant of the power to suspend the said privilege provides the
basis for continuing with perfect legality the detention as long as the invasion
or rebellion has not been repelled or quelled and the need therefor in the
interest of public safety continues." 9 Further: "The significance of the
confernment of this power, constitutionally upon the President as
Commander-in-Chief, is that the exercise thereof is not subject to judicial
inquiry, with a view to determining its legality in the light of the bill of rights
guarantee to individual freedom." 10
The opinion then went on to reiterate the doctrine that with the suspension of
the privilege of the writ of habeas corpus, the right to bail is likewise
suspended and to hold "that under LOI 1211, a Presidential Commitment
Order, the issuance of which is the executive prerogative of the President
under the Constitution, may not be declared void by the Courts, under the
doctrine of 'political question,' as has been applied in the Baker and
Castañeda cases, on any ground, let alone its supposed violation of the
provision of LOI 1211, thus diluting, if not abandoning, the doctrine of the
Lansang case." 11 Finally, the Court held "that upon the issuance of the
Presidential Commitment Order against herein petitioners, their continued
detention is rendered valid and legal, and their right to be released even after
the filing of charges against them in court, to depend on the President, who
may order the release of a detainee or his being placed under house arrest, 21, 1983 limits the duration of the preventive detention action for the period
as he has done in meritorious cases." 12 not exceeding one year. In the language of such Decree: "When issued, the
preventive detention action shall constitute authority to arrest the subject
The dispositive portion of the decision promulgated on April 20, 1983 reads person or persons, and to preventively detain him or them for a period not
as follows: "[Wherefore], the instant petition should be, as it is hereby exceeding one year and sequester all arms, equipment or properly used or to
dismissed." 13 be used in the commission of the crime or crimes." 18 There is no need to
mention the amendments as there is no change as to the preventive
detention period remaining at "not exceeding one year." This Presidential
Thereafter, on June 6, 1983, a motion for reconsideration was filed by
Decree No. 1877 explicitly provides in its Section 8: "The Minister of Defense
petitioner Garcia Padilla. The stress is on the continuing validity of Garcia v.
shall promulgate the rules and regulations to implement this Decree." 19 Such
Lansang 14 as well as the existence of the right to bail even with the
implementing rules and regulations were issued on September 7, 1983 by
suspension of the privilege of the writ of habeas corpus. The motion asserted
Minister of National Defense, respondent Juan Ponce Enrile and duly
further that the suspension of the privilege of the writ of habeas corpus does
approved by the President of the Philippines. One of its Sections deals with
not vest the President with the power to issue warrants of arrest or
the period of detention under a presidential commitment order thus: "The
presidential commitment orders, and that even it be assumed that he has
period of detention of all persons presently detained by virtue of a
such a power, the Supreme Court may review its issuance when challenged.
Presidential Commitment Order or its derivatives shall not extend beyond
It was finally alleged that since petitioners were not caught in flagrante
one (1) year from and after the date of effectivity of Presidential Decree No.
delicto, their arrest was illegal and void.
1877, as amended. Upon the effectivity of these rules and regulations, all
cases of persons presently detained under a presidential commitment order
In the comment of respondents on the motion for reconsideration, it was the or its derivatives shall be governed by Presidential Decree No. 1877, as
submission of Solicitor General Estelito P. Mendoza that the suspension of amended, and its implementing rules and regulations." 20
the privilege of the writ of habeas corpus raises a political, not a judicial,
question and that the right to bail cannot be invoked during such a period. On
Subsequently, on May 28, 1985, respondents filed the following
the question of whether or not the suspension of the privilege of the writ of
Manifestation: "1. The persons listed below who were detained by virtue of
habeas corpus vests the President with the power to issue warrants of arrest
Presidential Commitment Order (PCO) issued on July 12, 1982, and in
or presidential commitment orders, this is what the Comment stated: "It is to
whose behalf the above-captioned cases was filed have been released
be pointed out that this argument was not raised in the petition. Nonetheless,
detention by the military authorities concerned on the dates appearing
suffice it to point out that an arrest order by the President incident to the
opposite their names, to wit: Names of Detainees — Dates of Release: a. Dr.
suspension of the privilege of the writ of habeas corpus is essentially
Aurora Parong-December 12, 1983: b. Norberto Portuguese- January 31,
preventive in nature." 15 It added: "Besides, PD No. 1836 and LOI 1211 have
1985; c. Sabino Padilla — January 31, 1985; d. Francis Divinagracia —
vested, assuming a law is necessary, in the President the power of
January 31, 1985; e. Imelda delos Santos — October 20, 1983; f. Benjamin
preventive arrest incident to the suspension of the privilege of the writ of
Pineda — January 3l 1985; g. Zenaida Mallari — January 31, 1985 h. Tito
habeas corpus. In addition, however, it should be noted that the PCO has
Tanguilig — October 21, 1983; i. Letty Ballogan — March 4, 1983; j.
been replaced by Preventive Detention Action (PDA), pursuant to PD No.
Bienvenida Garcia — October 20, 1983; k Eufronio Ortiz, Jr. January 31,
1877 dated July 21, 1983. As provided for in the said decree, a PDA
1985; 1. Juanito Granada — October 20, 1983. 2. The foregoing information
constitute an authority to arrest and preventively detain persons committing
was received from the Off ice of Civil Relations, Ministry of National Defense,
the aforementioned crimes, for a period not exceeding one (1) year, with the
through Major Felizardo O. Montero, JAGS-GHO 3. As regards Tom
cause or causes of their arrest subjected to review by the President or by the
Vasquez, who was included in the instant petition, he was released on July
Review Committee created for that purpose." 16 The last argument of
17, 1982, after his arrest on July 15, 1982, since he was not named in the
petitioner, namely that the detainees were not caught in flagrante delicto and
PCO 4. Anent Mariano Soriano, the undersigned have been informed by the
therefore the arrest was illegal was refuted in the Comment thus: "Again
Office of Civil Relations that the subject escaped from detention two (2) years
petitioner simply misses the point. As this Court correctly observed, the
ago and as of date hereof is still at large." 21
crimes of subversion and rebellion are continuing offenses. Besides this point
involves an issue of fact. 17
There is no question, therefore, that the force and effectivity of a presidential
commitment order issued as far back as July 12, 1982 had ceased to have
It suffices to refer to the above Comment for the resolution of the motion for
any force or effect.
reconsideration. As therein noted, Presidential Decree No. 1877 dated July
WHEREFORE, pursuant to Section 8 of Presidential Decree No. 1877 and
Section 8 of the Rules and Regulations Implementing Presidential Decree
No. 1877-A, the motion for reconsideration should have been granted, and
the writ of habeas corpus ordering the release of the detainees covered by
such Section 8 issued, but in the light of the foregoing manifestation as to
Norberto Portuguese, Sabino Padilla, Francis Divina gracia, Imelda de los
Santos, Benjamin Pineda, Zenaida Mallari, Mariano Soriano, Tito Tanguilig,
Letty Ballogan, Bienvenida Garcia, Eufronio Ortiz, Jr., Juanito Granada, and
Tom Vasquez, having been released, the petition as to them has been
declared moot and academic. As to Dr. Aurora Parong, since a warrant of
arrest against her was issued by the municipal court of Bayombong on
August 4, 1982, for illegal possession of firearm and ammunitions, the
petition is likewise declared moot and academic. No costs.
Fernando, * CJ., Melencio-Herrera, Plana, Escolin, Relova, Gutierrez, Jr., De
la Fuente, Cuevas and Alampay, JJ., concur.
Makasiar, Aquino and Concepcion, Jr., JJ., concur in the result.
Separate Opinions
ABAD SANTOS, J.,  concurring:
I concur in the result, i.e. to dismiss the case for having become moot and
academic. And if I had my way I would set the original decision aside
because of its slavish tone.
TEEHANKEE, J., dissenting:
I maintain my original dissent from the decision of April 20, 1983, thus: "I am
constrained to dissent from the all encompassing scope of the main opinion
of Mr. Justice de Castro which would overturn the landmark doctrine
of Lansang vs. Garcia1 which upheld the Supreme Court's authority to inquire
into the existence of factual bases for the President's suspension of the
privilege of writ of habeas corpus in order to determine the constitutional
sufficiency thereof and would revert to the retrogressive and colonial era
ruling of Barcelon vs. Baker 2 and Montenegro vs. Castañeda  3 that the
President's decision to so suspend the privilege of the writ 'is final and
conclusive upon the courts and all other persons,' and would further deny the
right to bail even after the filing of charges in court to persons detained under
Presidential Commitment Orders," and " 'The continuous flow of petitions for
habeas corpus' filed with this Court should not be decried nor discouraged.
The Court stands as the guarantor of the constitutional and human rights of
all persons within its jurisdiction and must see to it that the rights are
respected and enforced. It is settled in this jurisdiction that once a deprivation
of a constitutional right is shown to exist, the court that rendered the
judgment or before whom the case is pending is ousted of jurisdiction and
habeas corpus is the appropriate remedy to assail the legality of the
detention. 4 So accused persons deprived of the constitutional right of speedy
trial have been set free. 5 And likewise persons detained indefinitely without
charges so much so that the detention becomes punitive and not merely
preventive in character are entitled to regain their freedom. The spirit and
letter of our Constitution negates as contrary to the basic precepts of human
rights and freedom that a person be detained indefinitely without any
charges."
As stated therein, "the higher and superior mandate of the Constitution
guarantees the right to bail and vests the courts with the jurisdiction and
judicial power to grant bail which may not be removed nor diminished nor
abdicated. We cannot but so hold, if we are to be true to the fundamental
precept that 'The Constitution is a law for rulers and for people equally in war
and in peace and covers with the shield of its protection all classes of men at
all times and under all circumstances.'
It should be noted that the Court's Resolution at bar reaffirms the restrictive
interpretation of preventive detention under section 3 of P.D. 1877 dated July
21, 1983 adopted by it in the Jimenez  6 and Villaber  7 cases, that it will set at
liberty persons preventively detained without charges for over one year.
Specifically cited is section 8 of the Defense Minister's implementing rules
and regulations duly approved by the President that "The period of detention
of all persons presently detained by virtue of a Presidential Commitment
Order or its derivatives shall not extend beyond one (1) year from and after
the date of effectivity of Presidential Decree No. 1877, as amended. Upon
the effectivity of these rules and regulations, all cases of persons presently
detained under a Presidential Commitment Order or its derivatives shall be
governed by Presidential Decree No. 1877, as amended, and its
implementing rules and regulations." The Court's Resolution further
authoritatively states with the unqualified concurrence of at least ten (10)
members that "There is no question, therefore, that the force and effectivity
of a presidential commitment order issued as far back as July 12, 1982 had
ceased to have any force and effect," since the detention exceeded the
prescribed one-year limitation and that "pursuant to Section 8 of Presidential
Decree No. 1877 and Section 8 of the Rules and Regulations Implementing
Presidential Decree No. 1877-A, the motion for reconsideration should have
been granted, and the writ of habeas corpus ordering the release of the
detainees covered by such Section 8 issued," but for the release of the
detainees effected earlier, mostly in January this year.
The crucial issues raised in petitioner's motion for reconsideration of June 6,
1983 8 will have to await determination in pending appropriate cases awaiting
the Court's resolution.
Separate Opinions
ABAD SANTOS, J.,  concurring:
I concur in the result, i.e. to dismiss the case for having become moot and
academic. And if I had my way I would set the original decision aside
because of its slavish tone.
TEEHANKEE, J., dissenting:
I maintain my original dissent from the decision of April 20, 1983, thus: "I am
constrained to dissent from the all encompassing scope of the main opinion
of Mr. Justice de Castro which would overturn the landmark doctrine
of Lansang vs. Garcia1 which upheld the Supreme Court's authority to inquire
into the existence of factual bases for the President's suspension of the
privilege of writ of habeas corpus in order to determine the constitutional
sufficiency thereof and would revert to the retrogressive and colonial era
ruling of Barcelon vs. Baker 2 and Montenegro vs. Castañeda  3 that the
President's decision to so suspend the privilege of the writ 'is final and
conclusive upon the courts and all other persons,' and would further deny the
right to bail even after the filing of charges in court to persons detained under
Presidential Commitment Orders," and " 'The continuous flow of petitions for
habeas corpus' filed with this Court should not be decried nor discouraged.
The Court stands as the guarantor of the constitutional and human rights of
all persons within its jurisdiction and must see to it that the rights are
respected and enforced. It is settled in this jurisdiction that once a deprivation
of a constitutional right is shown to exist, the court that rendered the
judgment or before whom the case is pending is ousted of jurisdiction and
habeas corpus is the appropriate remedy to assail the legality of the
detention. 4 So accused persons deprived of the constitutional right of speedy
trial have been set free. 5 And likewise persons detained indefinitely without
charges so much so that the detention becomes punitive and not merely
preventive in character are entitled to regain their freedom. The spirit and
letter of our Constitution negates as contrary to the basic precepts of human
rights and freedom that a person be detained indefinitely without any
charges."
As stated therein, "the higher and superior mandate of the Constitution
guarantees the right to bail and vests the courts with the jurisdiction and
judicial power to grant bail which may not be removed nor diminished nor
abdicated. We cannot but so hold, if we are to be true to the fundamental
precept that 'The Constitution is a law for rulers and for people equally in war
and in peace and covers with the shield of its protection all classes of men at
all times and under all circumstances.'
It should be noted that the Court's Resolution at bar reaffirms the restrictive
interpretation of preventive detention under section 3 of P.D. 1877 dated July
21, 1983 adopted by it in the Jimenez  6 and Villaber  7 cases, that it will set at
liberty persons preventively detained without charges for over one year.
Specifically cited is section 8 of the Defense Minister's implementing rules
and regulations duly approved by the President that "The period of detention
of all persons presently detained by virtue of a Presidential Commitment
Order or its derivatives shall not extend beyond one (1) year from and after
the date of effectivity of Presidential Decree No. 1877, as amended. Upon
the effectivity of these rules and regulations, all cases of persons presently
detained under a Presidential Commitment Order or its derivatives shall be
governed by Presidential Decree No. 1877, as amended, and its
implementing rules and regulations." The Court's Resolution further
authoritatively states with the unqualified concurrence of at least ten (10)
members that "There is no question, therefore, that the force and effectivity
of a presidential commitment order issued as far back as July 12, 1982 had
ceased to have any force and effect," since the detention exceeded the
prescribed one-year limitation and that "pursuant to Section 8 of Presidential
Decree No. 1877 and Section 8 of the Rules and Regulations Implementing
Presidential Decree No. 1877-A, the motion for reconsideration should have
been granted, and the writ of habeas corpus ordering the release of the
detainees covered by such Section 8 issued," but for the release of the
detainees effected earlier, mostly in January this year.
The crucial issues raised in petitioner's motion for reconsideration of June 6,
1983 8 will have to await determination in pending appropriate cases awaiting
the Court's resolution.
 Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-33254 & G.R. No. L-33253 January 20, 1978
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
LICERIO P. SENDAYDIEGO, JUAN SAMSON and ANASTACIO
QUIRIMIT, defendants. JUAN SAMSON and defendant-appellant.
PROVINCE OF PANGASINAN, offended party-appellee,
vs.
HEIRS OF LICERIO P. SENDAYDIEGO, defendants-appellants. *
Norberto J. Quisumbing for appellant Sendaydiego.
Donato & Rillera for appellant Samson.
Office of the Solicitor General for appellee.
AQUINO, J.:
In these three cases of malversation through falsification, the prosecution's
theory is that in 1969 Licerio P. Sendaydiego, the provincial treasurer of
Pangasinan, in conspiracy with Juan Samson y Galvan, an employee of a
lumber and hardware store in Dagupan City, and with Anastacio Quirimit, the
provincial auditor, as an accomplice, used six (6) forged provincial vouchers
in order to embezzle from the road and bridge fund the total sum of
P57,048.23.
The provincial voucher in these cases has several parts. In the upper part
with the legend "ARTICLE OR SERVICE" the nature of the obligation
incurred is indicated. That part is supposed to be signed by two officials of
the provincial engineer's office and by the governor's representative.
The middle part of the voucher contains five numbered printed paragraphs.
Paragraph 1 is a certificate to be signed by the creditor. It is stated therein
that the creditor vouches that the expenses "were actually and necessarily
incurred". In the instant cases paragraph 1 was not signed presumably
because it is not relevant to the purchase of materials for public works
projects.
Paragraph 2 is a certification that the expenses are correct and have been
lawfully incurred. It is signed by the provincial engineer.
Paragraph 3 contains these words: "Approved for pre-audit and payment,
appropriations and funds being available therefore." This is signed by the
provincial treasurer.
Paragraph 4 is a certification which, as filed up in Exhibit K, Voucher No.
10724 dated February 28, 1969, reads:
I certify that this voucher has been pre-audited and same
may be paid in the amount of sixteen thought seven hundred
twenty-seven and 52/100 (P16,727.52) in cash or in check,
provided there is sufficient fund cover the payment.
This is signed by the auditor.
Paragraph 5 is a certification signed by the provincial treasurer that the
account mentioned in the provincial engineer's certification "was paid in the
amount and on the date shown below and is chargeable as shown in the
summary hereof. ... ." It may be noted that the provincial treasurer signs two
part of the voucher.
Following paragraph 5, and as referred to therein, is the receipt of the signed
by the creditor. As accomplished in Exhibit K, the receipt reads (it was signed
according to the prosecution by Juan Samson, a point which is disputed by
him):
Received this 31st day of March, 1969, from L P.
Sendaydiego, Province of Pangasinan the sum of seven
hundred twenty-seven pesos & 52/100 (16,727.52) in full
payment of the above stated account, which I hereby certify
to be correct. Paid by Check No. .................................
CARRIED CONSTR. SUPPLY CO. By: (Sgd.) JUAN
SAMSON
According to the prosecution, Samson also signed on the left margin of the
six vouchers below the stamped words: "Presented to Prov. Treasurer.
By Juan Samson."
Voucher No. 10724 (Exh. K). — This Provincial voucher, dated February 28,
1969, evidences the payment of PI 6,727.52 to the Carried Construction
Supply Co. of Dagupan City for lumber and hardware materials supposedly
used in the repair of the bridge in Barrio Libertad at the Umingan-Tayug road
in Pangasinan along the Nueva Ecija boundary (Exh. K). The voucher makes
reference to invoice No. 3327 and other supporting papers.
The falsity of that provincial voucher is proven by the following intances:
(a) That there was no project for the repair of the bridge at Barrio Libertad (P.
1; Exh. Z).
(b) That the amount of P16,727.52 was never received by the Carried
Construction Supply Co The alleged official receipt No. 3025 of the company
dated March, 1969 (Exh. K-6) is forged.
(c) That the lumber and materials mentioned in Exhibit K were never
delivered by the company to the provincial government
(d) That in the provincial voucher, Exhibit K, and in the supporting requisition
and issue voucher (RIV) No. 2206 dated January 29, 1969 (Exh. A), covering
the same lumber and hardware ma the signatures of the following office were
forged: Salvador F. Oropilla senior civil engineer; Rodolfo P. Mencias,
supervising civil engineer Victoriano M. Sevilleja, acting provincial engineer,
and Ricardo B. Probincias, chief of equipment of the governor's office. These
four office denied that their signatures in the two vouchers, Exhibits A and B,
are their genuine signatures.
(e) That the imprint of the rubber stamp on Exhibits A and B, containing the
words "Approved: For and By Authority of the Governor (signed) Ricardo B.
Primicias, Chief of Equipment", is not the imprint of the genuine rubber stamp
used in Primicias office.
(f) That charge invoice No. 3327 of the Carried Construction Supply Co.
dated February 18, 1969, containing a description and the prices of the
lumber and hardware material (Exh. B), is fake because, according to
Ambrosio Jabanes, the company's assistant manager, the company's invoice
No. 3327 was issued to the Mountain Agricultural College (Exh. II-1). Oropilla
denied that his alleged signature on Exhibit B is his signature.
(g) That three other documents, supporting the provincial voucher (Exh. K),
were also forged. Those documents are the taxpayer's cate dated February
10, 1969 (Exh. C) stating that no tax is due on the goods sold in the fake
invoice No. 3327 and the two certificates as to the samples of lumber
allegedly purchased from the Carried Construction Supply Co., (Exh. D and
E). Narciso P. Martinez, a district forester, denied that his signatures in
Exhibits D and E are his signatures.
(h) That Angelo C. Manuel the checker of the provincial auditor's office,
denied that his signature on the left margin is his signature (Exh. A-10).
The forged character of provincial voucher No. 10724 (Exh. K) is
incontrovertible.
Other five forged voucher. — Five other provincial vouchers evidencing
supposed payments of certain amounts to the Carried Construction Supply
Co. for lumber and hardware materials supposingly used in the repair of
other bridges were also falsified. These five vouchers are the following:
(1) Voucher No. 11995 dated April 29, 1969 evidencing the
payment of P14,571.81 for number and hardware materials
allegedly used in the repair of Bayaoas bridge at the
Urbiztondo-Pasibi Road (Exh. O).
(2) Voucher No. 11869 dated April 15, 1969 evidencing the
payment of P5,187.28 'or lumber and hardware materials
allegedly used in the repair of the Panganiban bridge at the
UminganTayug Road (Exh. P)
(3) Voucher No. 11870 dated April 28, 1969 evidencing the
payment of P6,290.60 for lumber and hardware materials
allegedly used in the repair of the Cabatuan bridge at the
Umingan-Guimba Road (Exh. Q).
(4) Voucher No. 11871 dated April 15, 1969 evidencing the
payment of P9,769.64 for lumber and hardware materials
allegedly used in the repair of the Casabar bridge at the
Binalonan-San Manuel Road (Exh. R).
(5) Voucher No. 11872 dated April 15, 1969 evidencing the
Payment of P4,501.38 for lumber and hardware materials
allegedly used in the repair of the Baracbac bridge at the
Umingan-Guimba Road (Exh. S).
As in the case of voucher No. 10724 (Exh. K), Oropilla, Mencias, and
Primicias declared that their signatures in the said five vouchers are not their
genuine signatures. Samson, who hand-carried the said vouchers for
processing, did not turn over to the provincial auditor's office the papers
supporting the said vouchers after the vouchers had been pre-audited.
Hence, those supporting papers could not be presented in evidence.
Jabanes, the aforementioned assistant manager of the Carried Construction
Supply Co., testified that the lumber and hardware materials mentioned in the
five vouchers were never delivered by his company to the provincial
government. The charge invoices mentioned in the said vouchers were
cancelled invoices issued to the Mountain Agricultural College. The projected
repairs of the bridges were fictitious.
The company's cashier testified that the company never received the
payments for the lumber and hardware materials. The receipts evidencing
payments (Exh. K-6, KK to KK-4 are fake official receipts. The cashier
produced in court the genuine official receipts (Exh. LL to LL-7) bearing the
serial numbers of the fake receipts. The genuine receipts do not refer to
transactions with the provincial government.
Samson played a stellar role in the processing of the six vouchers. He used
to be an employee of the pro treasurer's office. He resigned and worked with
several firms doing business with the provincial government. In 1969 he was
the collector of the Carried Construction Supply Co. He represented that firm
in its dealings with the offices of the governor, provincial auditor, provincial
engineer and provincial treasurer. He was personally known to those
provincial officials and the employees of their offices (21-22 Sendaydiego's
brief).
The six (6) forged provincial vouchers, with their respective supporting
papers, were hand-carried by Samson. He delivered the papers to
Carmencita Castillo, the ledger clerk in the provincial engineer's office, for
recording and for her signature (Ekh. DD).
Thereafter, Samson brought the papers to the provincial treasurer's office.
Marcelo Crusade, a laborer in that office who performed the chore of
recording the vouchers and payrolls, recorded Vouchers Nos. 11869, 11871
and 11872 (Exh. P, R and S). Crusadas initials appear on the upper lefthand
corner of the said vouchers with the date 4/17/69.
Samson signed on the left margin of the vouchers to indicate that he
presented them to the provincial t r's office. Crusade said that after Samson
had presented the said papers to him, Samson brought them to Ricardo
Baraan, the book-keeper of the provincial treasurer's office for processing
and for the latter's signature (Exh. WW).
From Baraan's office, Samson hand-carried the vouchers to the provincial
auditor's office. He asked Virginia Cruz, a clerk to record the same (Exh.
CC).
Afterwards, Samson asked Donato Rosete the assistant provincial treasurer,
to initialled the voucher After Rosete had initialled the vouchers, Samson
went to the provincial treasurer's office where the amounts covered by the
voucher were paid by Sendaydiego to him in cash (instead of by check) as
representative of the Carried Construction Supply Co. (Exh. EE). He received
the payments on March 31 and April 29 and 28 (four payments on that date)
as shown on the face of the vouchers.
The signature of Sendaydiego and Quirimit, the auditor, on the said six
vouchers are admittedly authentic. Sendaydiego signed the vouchers ahead
of Rosete, his assistant. Sendaydiego's defense is that he signed the
vouchers in the honest belief that the signatures therein of the provincial
office concerned were genuine because the voucher had been pre-audited
and approved by the auditor.
Samson denied the authenticity of his two signatures on each of the six
vouchers showing that he received from Sendaydiego the amounts covered
thereby as representative of the lumber and hardware firm (Exh. OO to TT)
and that he presented the vouchers to the provincial s treasurer 's office
(Exh. 6-12 — Samson). Sendaydiego testified that Samson's signatures are
genuine.
In connection with the six vouchers, Sendaydiego, Samson and Quirimit were
charged with malversation through falsification in three docketed as follows:
1. Criminal Case No. 23349 involving provincial voucher No.
10724 dated February 28, 1969 in the sum of P16,7Z7.52
(Exh. X), L-33252.
2. Criminal Case No. 23350 involving provincial vouchers
Nos. 11869, 11870, 11871 dated April 15 (two dates) 28 and
15, 1969 for the respective amounts of P5,187.28,
P6,290.60, P9,769-64 and P4,501.38 (four vouchers, Exh. P,
Q, R and S), now L-33253.
3. Criminal Case No. 23351 involving provincial voucher No.
11955 dated April 29, 1969 in the sum of P14,571.81 (Exh.
O), now L-33254.
After trial the lower court acquitted the auditor, Quirimit and found
Sendaydiego and Samnson guilty of malversation through falsification of
public or official documents imposing each of the following penalties:
(1) In Criminal Case No. 23349, an indeterminate sentence
of twelve years, ten months and twenty-one-days, as
 minimum, to eighteen years, two months and twenty-one
days of reclusion temporal, as maximum, and a fine of
P16,727.52 and to indemnify solidarity the provincial
government of Pangasinan in the same amount;
(2) In Criminal Case No. 23350, the penalty of reclusion
perpetua and a fine of P29,748.90 and to indemnify solidarily
the provincial government of Pangasinan in the same
amount; and
(3) In Criminal Case No. 23351, an indeterminate sentence
of twelve years, ten months and twenty-one days, as
minimum, to eighteen year two months and twenty-one days
of reclusion temporal as maximum , and a fine of P14,571.81
and to indemnify solidarity the provincial government of
Pangasinan in the same amount.
Sendaydiego and Samson appealed to this Court.
Sendaydiego died on October 5, 1976. His appeal as to his criminal liability
was dismissed. Death extinguished his criminal liability remained. The
resolution of July 8, 1977 dismissing Sendaydiego's appeal read s follows:
The death of appellant Sendaydiego during the pendency of
his appeal or before the judgment of conviction rendered
against him by the lower court became final and executory
extinguished his criminal liability meaning his obligation to
serve the personal or imprisonment penalties and his liability
to pay the fines or pecuniary penalties (Art. 89[1], Revised
Penal Code; 1 Viada, Codigo Penal, 4th Ed., 565).
The claim of complainant Province of Pangasinan for
the civil liability survived Sendaydiego because his death
occurred after final judgment was rendered by the Court of
First Instance of Pangasinan, which convicted him of three
complex crimes of malversation through falsification and
ordered him to indemnify the Province in the total sum of
P61,048.23 (should be P57,048.23).
The civil action for the civil liability is deemed impliedly
instituted with the criminal action in the absence of express
waiver or its reservation in a separate action (Sec. 1, Rule
111 of the Rules of court). The civil action for the civil liability
is separate and distinct from the criminal action (People and
Manuel vs. Coloma, 105 Phil. 1287; Roa vs. De la Cruz, 107
Phil. 8).
When the action is for the recovery of money and the
defendant dies before final judgment in the Court of First
Instance, it shall be dismissed to be prosecuted in the
manner especially provided' in Rule 87 of the Rules of Court
(Sec. 21, Rule 3 of the Rules of Court).
The implication is that, if the defendant dies after a money
judgment had been rendered against him by the Court of
First Instance, the action survives him. It may be continued
on appeal (Torrijos vs. Court of Appeals, L-40336, October
24, 1975; 67 SCRA 394).
The accountable public officer may still be civilly liable for the
funds improperly disbursed although he has no criminal
liability (U S. vs. Elvina, 24 Phil. 230; Philippine National
Bank vs. Tugab, 66 Phil. 583).
In view of the foregoing, notwithstanding the dismissal of the
appeal of the deceased Sendaydiego insofar as his criminal
liability is concerned, the Court Resolved to continue
exercising appellate jurisdiction over his possible civil liability
for the money claims of the Province of Pangasinan arising
from the alleged criminal acts complained of, as if no criminal
case had been instituted against him, thus making
applicable, in determining his civil liability, Article 30 of the
Civil Code (Note: The lower court had issued an order of
attachment against him on January 13, 1970 for the sum of
P36,487 and in the brief for said appellant, there is no
specific assignment of error affecting the civil liability fixed by
the trial court.) and, for that purpose, his counsel is directed
to inform this Court within ten (10) days of the names and
addresses of the decedent's heirs or whether or not his
estate is under administration and has a duly appointed
judicial administrator. Said heirs or administrator will be
substituted for the deceased insofar as the civil action for the
civil liability is concerned (Secs. 16 and 17, Rule 3, Rules of
Court). According to Sendaydiego's brief, he had a wife and
ten children named Arturo, Licerio, Jr., Prospero, Regulo,
Eduardo, Cesar, Nola, Aida, Wilfredo and Manolo
(deceased).
 The title of this case should be amended to show its civil
aspect by adding thereto the following. Province of
Pangasinan vs. Heirs of Licerio P. Sendaydiego.
Sendaydiego's appeal will be resolved only for the purpose of showing his
criminal liability which is the basis of the civil liability for which his estate
would be liable for which his estate would be liable.
Sendaydiedo's appeal; civil liability of his estate. — In view of Sendaydiego's
death, it is not necessary to resolve his first two assignments of error,
wherein he assails the imposition of reclusion perpetua as a cruel and
unusual penalty and wherein it is argued that there is no complex crime of
malversation through falsification committed by negligence.
In the third assignment of error, it is contended that the trial court erred in
allowing private prosecutors Millora and Urbiztondo to prosecute the case
thereby allegledly subjecting the accused to proceedings marked by undue
publicity, pre-judgment, bias and political self-interest.
Atty. Vicente D. Millora, a senior member of the provincial board actually
handled the prosecution of the case from the preliminary investigation, which
started on June 5, 1969, up to the termination of the trial on July 29, 1970.
At the commencement of the preliminary investigation, the counsel for the
accused auditor inquired whether Atty. Millora was authorized by the
provincial board to act as private prosecutor in representation of the province
of Pangasinan, the offended party. Atty. Millora replied that there was a
board resolution designating him as a private prosecutor.
The acting provincial commander, who filed the complaints manifested to the
trial court that he had authorized Atty. Millora to act as private prosecutor (4-8
tsn June 5, 1969).
Another defense counsel filed a written motion to inhibit Millora and the
others as private prosecutors. The lower court denied the motion in its order
of June 18, 1969 (p. 40, Record of Criminal Case No. 23350).
After the termination of the p investigation conducted by the lower court, the
provincial fiscal of Pangasinan and the city final of Dagupan City filed three
informations against the accused all dated November 4, 1969.
At the commencement of the trial on February 23, 1970 the city fiscal, an
assistant provincial fiscal and Atty. Millora, the private prosecutor, appeared
for the prosecution. The city fiscal moved "that the private prosecutor
(Millora) be authorized to conduct the examination subject to our (the fiscal's)
control and supervision". The trial court granted the motion (7 tsn).
At the hearing on April 23, 1970 the same city fiscal moved that Atty.
Urbiztondo be authorized to examine the prosecution witnesses under his
supervision and control The trial court granted the motion (155 tsn).
The record shows that at every hearing the provincial fiscal, the city fiscal or
an assistant fiscal were present together with the private prosecutor.
Under the foregoing circumstances, we believe that there was substantial
compliance with the rule that the criminal action should be "prosecuted under
the direction and control of the fiscal" and that "the provincial fiscal shall
represent the province" in any court (Sec.4, Rule 110, Rules of Court; sec.
1683, Revised Administrative Code).
The observation of Sendaydiego's counsel, that the imposition of reclusion
perpetua "could have been the result of the undue publicity, prejudgment,
bias and political interest which attended the proceedings ", is not well-
founded. The trial court's decision dispels any doubt as to its impartiality. The
evidence in the three cases is mainly documentary. The unassailable
probative value of the documents involved rather than bias and prejudice,
was the decisive factor on which the trial court anchored the judgment of
conviction.
Moreover, as already adverted to, Sendaydiego's death had rendered moot
the issue as to the propriety of the imposition of  reclusion perpetua. And, as
will be shown later, reclusion perpetua cannot be imposed in these cases
because the crimes committed were not complex.
The other seven assigmments of error made by Sendaydiego's counsel refer
to the trial court's conclusion that Sendaydiego and Samson are guilty
beyond reasonable doubt of malversation through falsification or, specifically,
that the provincial treasurer, in signing the six vouchers, evinced "malice or
fraud and that there must have been connivance between" the two.
Several lances indicate that Sendaydiego conspired with Samson. Donato N.
Rosete, the assistant provincial treasurer, testified that, contrary to the usual
procedure, he affixed his initial to paragraph 3 of the vouchers after
Sendaydiego had signed it. Rosete adhered to that unusual procedure
because the interested party, Samson who hand-carried the vouchers,
approached Rosete after he (Samson) had conferred with the provincial
treasurer and Samson told Rosete to initial the voucher because it was
areglado na (already settled) since the treasurer had already signed the
voucher (54 tsn July 3, 1969).
Rosete's testimony and affidavit confute appellant Sendaydiego's contention
that the trial court erred in finding that he signed the questioned vouchers
before Rosete had placed his initial in them. After the treasurer had signed
the voucher, Rosete's duty to initial it was only ministerial (75 tsn July 3,
1969).
The bookkeeper in the treasurer's office testified that he indicated in the
vouchers that the amounts covered thereby should be paid in cash. That
indication was made by means of the symbol "A-1-1" placed at the bottom of
the vouchers under the column "Account Number". The bookkeeper was in.
instructed by Samson to place that symbol Samson told him that he
(Samson) had an understanding with Treausrer Sendaydiego that the
payment should be made in cas. There were instances when the treasurer
insisted on payment by check to creditors other than Juan Samson.
The cash payments were made to Samson in the inner office of the provincial
treasurer where the cashier was summoned to make the cash payments (11-
12 ton July 9, 1969; p. 11, Exh. EE). As noted by the trial court, it was
unusual that the payments should be made in the treasurer's office when that
was a ministerial chore of the cashier.
The cash payments were made to Samson even if Samson had no power of
attorney from the Carried Construction Supply Co. authorizing him to receive
the payments. The space in the vouchers for the signature of the witness,
who should be present when the payments were received, was blank. The
treasurer did not bother to have a witness to attest to the payments or to
require the exhibition of Samson's residence certificate.
Another apt observation of the trial court is that the forged character of the six
vouchers would have been unmasked by the supposed creditor, Carried
Construction Supply Co., if the payments had been made by means of
checks. The company on receiving the checks would have returned them to
the treasurer because it knew that there was no reason to make any
payments at all. The trial court said that the cash payments prove
Sendaydiego's collusion with Samson.
Sendaydiego's counsel assails the lower court's finding that there was a
conspiracy between the provincial and Samson as shown by the fact that the
amounts covered by the vouchers were paid to Samson by the cashier in the
treasurer's inner office. That point was testified to by Rosete, the assistant
provincial treasurer.
The cashier, Napoleon Ulanday, would have been the beet witness on how
and where the payments were made. However, Ulanday died before the
preliminary investigation was started. On May 27, 1969, after the anomalies
were unearthed, he wrote a letter to the provincial , stating that he paid to
Samson the amounts covered by five vouchers in the of Salazar K. Misal and
Josefina E. Pulido (Exh. 13).
Rosete was in a position to state that the cash payments were made to
Samson in the treasurers inner office because his table was near the main
door of the treasurers office or was about fifteen meters away (18 tsn).
Rosete always knew when the cashier went to the treasurers office because
the cashier was oned by means of a buzzer (long buzz), and when the
cashier came out of the treasurer's office, he would be holding the voucher
(12-13 tsn).
Sendaydiego's counsel that no gross negligence can be imputed to the
treasurer (malversation is a crime which can be committed by means
of dolo or culpa and the penalty in either case is the same). This argument
does not deserve serious consideration because the facts proven by the
prosecution show that he had a tieup with Samson and that he acted
maliciously in signing the six questioned vouchers.
The last contention put forward for Sendaydiego is that, because the trial
court acquitted the auditor, then the treasurer's exoneration follows as a
matter of course. We see no merit in that contention because the evidence
for the prosecution against Sendaydiego is not the same as its evidence
against the auditor. For that reason the auditor was charged only as an
accomplice, whereas, the treasurer was charged as a principal. The auditor
based his defense on the undeniable fact that the treasurer had approved the
six vouchers "for pre-audit and payment" before they were passed upon by
the auditor. In short, the auditor was misled by the treasurer's certification
which the auditor apparently assumed to have been made in good faith when
in truth it was made in bad faith.
We are convinced after a minutiose examination of the documentary and oral
evidence and an unprejudiced consideration of the arguments of
Sendaydiego's counsel that his criminal liability was established beyond
reasonable doubt and, therefore, the civil liability fo his estate for the
amounts malversed was duly substantial.
Samson's appeal. — Samson's brief has no statement of facts. He contends
that the trial court erred in disregarding the expert testimony that his
signatures on the vouchers are not his signature; in finding that he forged the
vouchers and received the proceeds thereof, and in relying on circumstantial
evidence as proof of conspiracy.
As a preliminary issue, Samson argues that Judge Eloy B. Bello should have
inhibited himself "in fairness to the accused, in the interest of justice, and as
a gesture of delivadeza" because he had conducted the preliminary
investigation.
Our searching study of the recrod fails to sustain Samson's insinuation that
he was prejudiced by the fact that Judge, who conducted the preliminary
investigation, was the one who tried the case and convicted him. Judge Bello
tried the case fairly. His conduct of the trial does not show that he had
already prejudged their guilt.
Section 13, Rule 112 of the Rules of court, in allowing a Court of First
Instance to conduct a preliminary investigation, does not disqualify it from
trying the case after it had found probable cause and after the fiscal, as
directed by the Court, had filed the corresponding information. The rule
assumes that the Judge, who conducted the preliminary investigation, could
impartially try the case on the merits.
We cannot assume that judges as a rule are opinionated and narrow-minded
insomuch that they would invariably be iron-bound by their findings at the
preliminary investigation.
The case of a Judge of the Court of First Instance, who conducts a
preliminary investigation and then tries the case on the merits, is similar to a
situation where an inferior court conducts a preliminary investigation of a
grave or less grave offense falling within the concurrent jurisdiction of the
Court of First Instance and tghe inferior court. In such a case, the inferior
court after terminating the preliminary investigation is not obligated (por
delivadeza) to remand the case to the Court of First Instance for trial. The
inferior court has the option to try the case on the merits (People vs. Palmon,
86 Phil. 350; Natividad vs. Robles, 87 Phil. 834; People vsw. Colicio, 88 Phil.
196). The assumption is that the inferior court can try the case without any
ingrained bias or undue prejudice.
Samson sought to prove, through Lieutenant Colonel Jose G. Fernandez,
retired chief of the Constabulary crime laboratory, a handwriting expert, that
his signatures on the vouchers are not his signatures.
Fernandez found that the questioned signatures and the alleged genuine
signatures (exemplars) of Samson have fundamental differences. The expert
concluded that the questioned signatures and the exemplar signatures of
Samson were not written by one and the same person (Exh. 20).
After examining the questioned and genuine signatures and analysing the
evidence and contentions of the parties, we find that the expert is correct in
declaring that (as admitted by the trial court) there are radical differences
between the questioned and authentic signatures.
But the expert is in error in concluding that Samson did not forge the
questioned signatures or in implying that Samson had no hand in the writing
thereof.
The truth is that Samson used two forms of signature. His supposed genuine
signatures found in his residence certificates, income tax returns and the
genuine office receipt of the Carried Construction Supply Co. are "in an
arcade form or rounded form of writing". The surname Samson is encircled.
On the other hand, the questioned signatures used in Samson's transactions
with the provincial government are in angular form; his surname is not
encircled, and the questioned signatures terminate in angular and horizontal
strokes.
Samson was consistent in his fakeries. Knowing that the six vouchers
evidenced fictitious transactions, he used therein his fake signature, or the
signature which is different from his signature in genuine documents. He
used his forged signatures in the six fake official receipts of the Carried
Construction Supply Co., stating that the amounts covered by the six
vouchers were received by him (Exh. K-6, KK to KK-4). the expert admitted
that a person may have two forms of signature (186 tsn July 16, 1970).
Signatures may be deliberately disguised with the dishonest intention of
denying the same as and when necessary (Mehta, Identification of
Handwriting and Cross Examination of Experts, pp. 4th Ed., 1970, p. 224;
Harrison, Suspect Documents 418-419).
Sendaydiego himself testified that the questioned signatures of Samson in
the six vouchers were Samson's signatures (94-99 tsn July 31, 1969).
Fernandez, the handwriting expert, declared that the questioned signatures
of Samson in the vouchers were written by only one person (264-265 tsn July
16, 1970).
The evidence conclusively proves that Samson, as the representative or
collector of the supposed creditor, Carried Construction Supply Co., hand-
carried the vouchers in question to the offices of the provincial engineer,
treasurer and auditor and then back to the treasurer's office for payment. He
actually received the cash payments. Under those circumstances, Samson is
presumed to be the forger of the vouchers.
The rule is that if a person had in his possession a falsified document and be
made use of it (uttered it), taking advantage of it and profiting thereby, the
presumption is that he is the material author of the falsification. This is
especially true if the use or uttering of the forged documents was so closely
connected in time with the forgery that the user or possessor may be proven
to have the capacity of committing the forgery, or to have close connection
with the forgers, and therefore, had complicity in the forgery. (U.S. vs.
Castillo, 6 Phil., 453; People vs. De Lara, 45 Phil. 754; People vs. Domingo,
49 Phil. 28; People vs. Astudillo, 60 Phil. 338 People vs. Manansala, 105
Phil. 1253).
In the absence of a satisfactory explanation, one who is found in possession
of a forged document and who used or uttered it is presumed to be the forger
(Alarcon vs. Court of Appeals, L-21846, March 31, 1967, 19 SCRA 688;
People vs.Caragao, L-28258, December 27, 1969, 30 SCRA 993).
Samson's use of one form of signature for his crooked transactions with the
provincial government and another form of signatures of his valid
transactions or papers shows the deviousness of the falsifications
perpetrated in these cases. (Note that Sendaydiego signed the certification in
the first voucher, Exhibit K, stating that proceeds thereof were paid to
Samson but Sendaydiego did not sign the same certification in the other five
forged vouchers, Exhibits O, P, Q, R and S).
As to the question of conspiracy, the statement of Samson's on page 19 of
his brief, that "the trial court made absolutely no finding of any supposed
conspiracy' between Samson and Sendaydiego, is not correct.
We have already noted that the trial court explicitly stated that the
circumstance that Sendaydiego signed the six vouchers ahead of his
assistant shows that there was "malice or fraud" on the part of Sendaydiego
and that there was conivance between Samson and Sendaydiego when the
proceeds of the vouchers were paid to Samson in Sendaydiego's inner office,
instead of in the cashier's office (p. 23, 26, Decision, Appendix to Samson's
brief). The trial court said that the fact that Sendaydiego allowed payment in
cash shows "his collission with Samson (Ibid, p. 26).
Samson's contention that the trial court merely conjectured that he had
received the proceeds of the vouchers is not well taken. The trial court's
finding on that point is based on very strong circumstantial evidence
(assuming that it was not proven that Samson signed the vouchers).
Samson vehemently argues that there is no evidence that the total sum of
P57,048. 23 paid under the six vouchers "was really misappropriated". He
asserts that the six vouchers are genuine (although he contends that his
signatures thereon are forgeries) and that there is no proof that the amounts
covered thereby were not paid for the construction materials shown in the six
vouchers were never delivered by the company (Exh. HH).
These contentions appear to be untenable in thelight of the declaration of
Jabanes, the assistant manager of Carried Construction Supply Co., the
alleged supplier, that the materials shown in the six vouchers were never
delivered by the company (Exh. HH).
And Leticia Sevilleja (wife of the provincial engineer), who was employed as
cashier of the carried Construction Supply Co., denied that Samson turned
over to the company the proceeds of the six vouchers which he was
supposed to have collected for the company from Sendaydiego. The six
vouchers appear to be fake principally because they evidence fictitious sales
of construction materials.
Under the said circumstances, it cannot be contended that there was no
malversation after Sendaydiego admtte that Samson acknowledged in the six
vouchers that he received from Treasurer Sendaydiego the total sum of
P57,048.23.
The assertion of Samson's counsel on pgae 29 of his brief, that the finding as
to his guilt is based on a shaky foundation or is predicated on circumstances
which wre not proven, is not correct.
Recapitulations. — In resume, it appears that the provincial treasurer wants
to base his exculpation on his belief that in the six vouchers the signatures of
Samson and the officials in the provincial engineer's office appeared to be
genuine and on the fact that the auditor had approved the vouchers. The
tresurer claimed that he acted in good faith in approving the payments of the
proceeds of the vouchers to Samson as the representative of the supplier,
Carried Construction Co.
On the other hand, Samson, by impugning his signatures in the vouchers,
denied that he received the said amounts from the cashier of the treasurer's
office.
These conflicting versions of the treasurer and Samson have to be resolved
in the light of the inexpugnable fact that Samson had hand-carried the
voucehrs and followed up their processing in the offices of the provicial
government the construction materials described in the six vouchers and
denied having received from Samson the prices of the alleged sales.
The result is the Samson's denial of his signatures in the six vouchers and in
the six receipts (Exh. K-6 and KK to KK-4) and the provicial treasurer's
pretension of having acted in good faith or having committed an honest
mistake have to be disbelieved.
The unavoidable conclusion is that Sendaydiego and Samson were in
cahoots to defraud the provincial government and to camouflage the
defraudation by means of the six vouchers which have some genuine
features and which appear to be extrinsically authentic but which were
intrinsically fake.
Penalties. — The trial court and the assumed that three complex crimes of
malversation through falsification of public documents were committed in this
case. That assumption is wrong.
The crimes committed in these three cases are not complex. Separate
crimes of falsification and malversation were committed. These are not cases
where the execution of a single act constitutes two grave or less grave
felonies or where the falsification was used as a means to commit
malversation.
In the six vouchers the falsification was used to conceal the malversation. It
is settled that if the falsification was resorted to for the purpose of hiding the
malversation, the falsification and malversation are separate offenses
(People vs. Cid, 66 Phil 354; People vs. Villanueva, 58 Phil. 671; People vs.
Geralde 52 Phil. 1000; People vs. Regis, 67 Phil. 43).
In the Regis case, supra where the modus operandi is similar to the instant
cases, the municipal treasurer made it appear in two official payrolls dated
April .30 and May 2, 1931 that some persons worked as laborers in a certain
street project at Pinamungahan, Cebu. In that way, the two amounts covered
by the payrolls, P473.70 and P271.60, were appropriated and taken from the
municipal funds. As a matter of fact, no such work was done in the said street
project and the persons mentioned in both payrolls had not performed any
labor.
It was held in the Regis case, that the falsification and malversation did not
constitute a complex crime because the falsifications were not necessary
means for the co on of the malversations. Each falsification and each
malversation constituted independent offenses which must be punished
separately.
The municipal treasurer was convicted of two falsifications and two
malversations. Four distinct penalties were imposed.
In the instant cases, the provincial , as the custodian than of the money
forming part of the road and bridge could have malversed or misappropriated
it without falsifiying any voucher. The falsification was used as a device to
prevent detection of the malversation.
The falsifications cannot be regarded as constituting one continuing offense
impelled by a single criminal impulse.
Each falsification of a voucher constitutes one crime. The falsification of six
vouchers constitutes six separate or distinct offenses (People vs. Madrigal-
Gonzales, 117 Phil. 956).
And each misappropriation as evidenced by a provincial voucher constitutes
a separate crimes of malversation were committed. Appellant Samson is a
co-principal in each of the said twelve offenses.
As already stated, he is presumed to be the author of the falsification
because he was in possession of the forged vouchers and he used them in
order to receive public monies from the provincial treasurer.
He is a co-principal in the six crimes of malversation because he conspired
with the provincial treasurer in committing those offenses. The trial court
correctly ruled that a private person conspiring with an accountable public
officer in committing malversation is also guilty of malversation (People vs.
Rodis, 105 Phil. 1294; U.S. vs. Ponte, 20 Phil. 379; U.S. vs. Dato and Lustre,
37 Phil. 359; U.S. vs. Dowdell, 11 Phil. 4; People vs. Caluag, 94 Phil. 457).
Note that a different rule prevails with respect to a stranger taking part in the
commission of parricide or qualified theft. In such cases, the stranger is not
guilty of parricide or qualfied theft but only of murder or homicide, as the case
may be, and simple theft, by reason of paragraph 3, article 62 of the Revised
Penal Code (People vs. Patricio, 46 Phil. 245).
Falsification of a public document committed by a private person is punished
in article 172(1) of the Revised Penal Code by prision correccional  in its
medium and maximum periods and a fine of not more than P5,000.
For the malversation of the sum of P5,187.28 and P4,501.38, respectively
covered by vouchers Nos. 11869 and 11872 (Exh. P and S), the penalty
provided in paragraph 2 of article of the Revised Penal Code is prision
mayor minimum and medium.
For the malversation of the sums of P6,290.60 andP9,769.64, respectively
covered by vouchers Nos. 1187 and11871 (Exh. Q and R) the penalty
provided in paragraph 3 of article 217 is prision mayor maximum to reclusion
temporal  minimum.
For the malversation of the sums of P16,727.52 and 10995 (Exh. K and O),
the penalty provided in paragraph 4 of article 217 is reclusion
temporal  medium and maximum.
In each of the malversation cases, a fine equal to the amount malversed indemnify the province of Pangasinan in the same amount (Criminal Case
should be added to the imprisonment penalty. No. 23350, L-33253).

In the twelve cases the penalty should be imposed in the medium peiod since
there are no modifying circumstances (Arts. 64[1] and 685, Revised Penal
Code). Samson is entitled to an indeterminate sentence.
WHEREFORE, Samson is convicted of six crimes of falsification of a public
document and six crimes of malversation.
For the malversation of the sum of P5,187.28, covered by voucher No. 11869
(Exh. P), Samson is sentenced to an indeterminate penalty of five (5) years
of prision correccional maximum, as minimum, to eight (8) of prision
mayor  minimum, as maximum; to pay a fine of P5,187.28, and to indemnify
the province of Pangasinan in the same amount (Criminal Case No. 23350,
L-33253).

In lieu of the penalties imposed by the trial court, he is sentenced to the For the malversation of the sum of P4,501.38 covered by voucher no. 11872
following penalties: (Exh. S), Samson is sentenced to an indeterminate penalty of five (5) years
of prision correccional maximum, as minimum, to eight (8) years of prision
mayor minimum, as maximum; to pay a fine of P4,501.38, and to indemnify
For each of the six falsification of the vouchers (Exh. K, O, P, Q, R and S),
the province of Pangasinan in the same amount (Criminal Case No. 23350,
Samson is sentenced to an indeterminate penalty of two (2) years of prison
L-33253).
correccional  minimum, as minimum, to four (4) years of prision
correccional medium, as maximum, and to pay a fine of three thousand
pesos. In the service of the twelve penalties meted to Samson, the threefold limit
provided for in article 70 of the Revised Penal Code should be observed
(People vs. Escares, 102 Phil. 677), meaning that the maximum penalty that
For the malversation of the sum of P16,727.52 covered by voucher No.
he should serve is three times the indeterminate sentence of twelve (12)
10724 (Exh. K), Samson is sentenced to an indeterminate penalty of twelve
years to seventeen (17) years, the severest penalty imposed on him, or
(12) years of prision mayor  maximum, as minimum, to seventeen (17) years
thirty-six (36) years to fifty-one (51) years (see People vs. Peñas, 68 Phil.
of reclusion temporal medium, as maximum; to pay a fine in the amount of
533).
P16,727.52, and to indemnify the province of Pangasinan in the same
amount (Criminal Case NO. 23349, L-33252).
The maximum duration of his sentences should not exceed forty (40) years
(Penultimate par. of art. 70; People vs. Alisub, 69 Phil. 362; People vs.
For the malversation of the sum of P14,571.81 covered by voucher No.
Concepcion, 59 Phil. 518, 68 Phil. 530 and 69 Phil. 58).
11995 (Exh. O), Samson is sentenced to an indeterminate penalty of twelve
(12) years of  prision mayor maximum, as minimum, to seventeen (17) years
of reclusion temporal medium, as maximum; to pay a fine in the sum of The estate of the late Licerio P. Sendaydiego is ordered to indemnify the
P14,571.81, and to indemnify the province of Pangasinan in the same province of Pangasinan in the sum of P57,048.23.
amount (Criminal Case No. 23351, L-33254).
Samson and the said estate are sojidarily liable for the said indemnity (Art.
For the malversation of the sum of P6,290.60 covered by voucher No. 11870 110, Revised Penal Code). Samson should pay one-half of the costs.
(Exh. Q), Samson is sentenced to an indertiminate penalty of nine (9) years
of prision mayor  medium, as minimum, to thirteen (13) years of  reclusion SO ORDERED.
temporal  minimum, as maximum; to pay a fine of P6,290.60, and to
indemnify the province of Pangasinan in the same amount (Criminal Case Antonio, Concepcion, Jr., and Santos, JJ., concur.
No. 23350, L-33253).
Fernando, J., took no part.
For the malversation of the sum of P9,769.64 covered by voucher No. 11871
(Exh. R), Samson is sentenced to an indeterminate penalty of nine (9) years  
of prision mayor  medium, as minimum, to thirteen (13) years of reclusion
temporal  minimum, as maximum; to pay a fine of P9,769.64, and to
 
Separate Opinions
BARREDO, J., concurring:
While I concur in the judgment finding the accused-appellant Juan Samson
guilty of six separate crimes each of falsification and malversation as
elucidated in the very well studied and ably prepared main opinion of our
distinguished colleague, Mr. Justice Aquino, and while I further agree that
said appellant and the estate of the deceased Licerio P. Sendaydiego are
lointtv and solidarity liable to the Province of Pangasinan for the amounts
stated ir. the dispositive portion of the decision herein, I have my own legal
basis for holding that the estate of Sendaydiego is indeed liable for the, said
amount&
To start with, I find it difficult to share the view that "notwithstanding the
dismissal of the appeal of the deceased Sendaydiego (he died during the
pendency of this appeal) insofar as his liability is concerned, ...
Sendaydiego's appeal will (nevertheless) be resolved only for the purpose of
showing his liability which is the basis of the civil liability for which his estate
is liable." It seems to me that there is some degree of irreconcilable
incontency in dismissing a case, thereby acquitting the accused therein of
criminal liability because of death or any other cause not amounting to a
finding that he had not committed the act complaint of and at the same nine
holding that he or his estate has in civil liability based on his criminal liability.
It is to me clearly obvious that the dismiss of an appml due to death of the
appellant, from a judgment of conviction by a trial court does not result in the
affirmance of sruch conviction contrary to the general rule when an appeal in
a case is dismissed but, on the contrary, it amounts to an acquittal of the
appellant based on the constitutionally mandated presumption of innocence
in his favor that can be overcome only by a finding of guilt, something that his
death prevents the court from making. In a sense, the death of an accused-
appellant has the effect of his total absolution by God from any earthly
responsibility for the offense as such, a divine act of clemency no human
court can reverse, qualify, much less disregard. It is an inherent inalienable
human right of every individual not to be subject to imputation of criminal
liability in any sense, unless his guilt of the crime charged against him has
been duly proven beyond reasonable doubt in a duly held criminal
proceeding. The intervention of death of the accused in any case is an
injunction by fate itself that no criminal liability whatsoever should be imposed
on him, not only because from the very nature of the situation, it is impossible
to do so but also because it would be a juridical absurdity to contemplate
such a legal concept. In short, death ex-anguishes the crime, and, corollarily,
all its consequences.
Indeed, it is but logical to hold that the civil liability resulting from criminal
liability under Artide 100 of the Revised Penal Code would have no basis
unless criminal responsibih"ly is fixed or exists. It has been said that civil
liabilitv under this provision "is rooted in the criminal liability". 1 In this
connection and adjectively, Section 1 of Rule 111 stipulates that "when a
criminal action is instituted, the civil action for recovery of civil liability arising
from the offense charged is impliedly instituted with the criminal action, etc."
But it must be emphasized that these legal precepts refer exclusively to the
civil liability consequent of the offense in its juridical essence as a crime, it
being elementary on our legal system that the same act my give rise to civil
responsibility independent of that resulting from the commission of the act as
a crime.
Thus it is entirely possible for one to be fee from civil ability directly rooted in
the act viewed as a violation of the penal law and still be liable civilly for it
considered otherwise as an infringement of a right based on a created by
contract or by laws other than the criminal law. A consistent host of
jurisprudence, too to the bench and bar to need particular citation hem exists
upholding the right of a party aggrieved by an act in nature to indemnity,
restitution or reparation, notwithstanding the absence or failure of the usual
prosecution, in view of the provisions of the pertinent articles of the Civil
Code on Human Relations and Section 2 of Rule III. Stated the same act or
got Of facts can be the subject of obligations arise at the same time thru the
different modes contemplated in Article 1157 of the Civil Code providing that
"obligations arise from (1) lave, (2) contracts; (3) quasi-contracts; (4) acts or
omissions punished by law, and (5) quasi-delicts." Thus, that an act or
omission is punished by law, thereby making the actor civilly liable therefor,
does not exclude simultaneous liability of the for the same act viewed also as
one giving rise to an obligation under the another law, and/or under a
contract, quasi-contract or quasi-delict, with the sole qualification that the
aggrieved party cannot recover damages more than once for the same act or
omission. (See Art. 2177, Civil Code.)
I am confident that the points I have just discussed are beyond debate. And
as I see it my learned colleagues in the majority and I are agreed that in the
light of the legal Principles I have stated, there can be no doubt that the
estate of Sendaydiego could be held liable for the acts of the d that can be
proven to have damaged the Province of Pangasinan in spite of the of
Sendaydiego's appeal by reason of his death. Our possible disagreement
relates only to the procedural aspect of the matter.
The main opinion justifies the imposition of civil liability upon said estate
within this appeal proceedings, thereby sing with the filing of a separate civil
action for the In my view, the dismissal of Sendaydiego's appeal amounts, as
I have said to his acquittal This acquittal to my mind is different juridically
from one based on liable doubt bemuse as I have only intimated earlier, it is
a total absolution by fate itself which carries with it y, exemption from or
extinction of the civil liability as if the Court had hold that the act from which
the civil (action) might arise did not exist (Section 2 (e), Rule 111.) But this is
not to say that the state is already exonerated altogether from another kind of
civil liability for indemnity, restitution or reparation, for under the unbroken
line of precedents I have already referred to, the pertinent provisions on
Human Relations of the Civil Code, particularly Article 30, come into play, for
under this cited provision, the total absolution of Sendaydiego based on his
death becomes virtually immaterial, since ths provision contemplates
prosecution of the civil liability arising from a criminal offense without the
need of any criminal proceeding to prove the commission of the crime as
such, that is, without having to prove the criminal liability of the defendant so
long as his act causign damage or prejudice to the offended party is proven
by a preponderance of evidence. This article provides, "when a seperate civil
action is brought to demand civil liability arising from a criminal offense, and
no criminal proceedings, are instituted during the pendency of the civil case,
a preponderance of evidence shall likewise be sufficient to prove the act
complained of."
My reading of the existing jurisprudence is that the civil liability not based on
the act as crime has to be prosecuted in a te civil action and not within the
same criminal proceedings wherein the accused has been acquitted or the
case against him is terminated with exonerative consequence. If there is any
jurisprudence to the contrary, it is still isolated and is not binding precedent.
Worse, in my opinion, it is based on what I consider to be the erroneous
premise that Article 29 of the Civil Code does not mean literally what it says.
Textually, this article states:
When the accused in a criminal prosecution is acquitted on
the ground that his guilt has not been beyond reasonable
doubt, a civil action for damages for the same act or
omission may be instituted. Such action requires only a
preponderance of evidence. Upon motion of the defendant,
the court may require the plaintiff to file a bond to answer for
damages in case the complaint should be found to be
malicious.
If in a criminal case the judgment of acquittal is based upon
reasonable doubt, the court shall so declare. In the absence
of any declaration to that effect, it may be inferred from the
text of the decision whether or not the acquittal is due to that
ground.
Definitely and unequivocally, what it authorizes is that "a civil action for
damages for the same act or omission may be instituted." It does not say that
the civil action joined with the criminal action, as provided for in Section 1 of
Rule 111, shall survive and be the one continued. I reiterate that what is left
to the offended party after the death of an accused before conviction is the
right to institute a civil action for damages for the same act or omission
pursuant to Articles 29 and 30 of the Civil Code and Sections 2 and 3 (c) of
Rule 111 of the Rules of Court.
All these notwithstanding, for the purposes of the instant case, I am willing to
take the position that since the point I am pressing on is more or less
procedural or remedial in nature, and perhaps, the failure of the parties
concerned to seriously object to the procedure pursued in the main opinion
could be a sufficient excuse for not following what I feel is the proper way of
dealing with the civil liability incurred by the estate of the deceased
Sendaydiego, hence my concurrence, in the qualified sense implicit in this
separate opinion, in the dispositive portion of the decision herein.
May I add here that the foregoing reasons explain why I have always insisted
that when appeals in criminal cases before us have to be dismissed by
reason of the death of the appellant, it is not proper to qualify such dismissal
as limited to that of the criminal liability of the appellant. It is my humble view
that the dismissal should be unqualified and that the offended parties
concerned should be left to pursue their remedies, if they so desire, in the
appropriate separate civil action contemplated both in the Civil Code and in
Rule 111, as explained above. I admit this view might entail the institution of
what is virtually a repetitive proceeding, but I cannot see any way of avoiding
what the unequivocal language of the pertinent legal provisions mandate,
unless I make myself a party to judicial legislation, which I believe it is not
constitutionally permissible for me to do, no matter how practical the
procedure might be.
Separate Opinions
BARREDO, J., concurring:
While I concur in the judgment finding the accused-appellant Juan Samson
guilty of six separate crimes each of falsification and malversation as
elucidated in the very well studied and ably prepared main opinion of our
distinguished colleague, Mr. Justice Aquino, and while I further agree that
said appellant and the estate of the deceased Licerio P. Sendaydiego are
lointtv and solidarity liable to the Province of Pangasinan for the amounts
stated ir. the dispositive portion of the decision herein, I have my own legal
basis for holding that the estate of Sendaydiego is indeed liable for the, said
amount&
To start with, I find it difficult to share the view that "notwithstanding the
dismissal of the appeal of the deceased Sendaydiego (he died during the
pendency of this appeal) insofar as his liability is concerned, ...
Sendaydiego's appeal will (nevertheless) be resolved only for the purpose of
showing his liability which is the basis of the civil liability for which his estate
is liable." It seems to me that there is some degree of irreconcilable
incontency in dismissing a case, thereby acquitting the accused therein of
criminal liability because of death or any other cause not amounting to a
finding that he had not committed the act complaint of and at the same nine
holding that he or his estate has in civil liability based on his criminal liability.
It is to me clearly obvious that the dismiss of an appml due to death of the
appellant, from a judgment of conviction by a trial court does not result in the
affirmance of sruch conviction contrary to the general rule when an appeal in
a case is dismissed but, on the contrary, it amounts to an acquittal of the
appellant based on the constitutionally mandated presumption of innocence
in his favor that can be overcome only by a finding of guilt, something that his
death prevents the court from making. In a sense, the death of an accused-
appellant has the effect of his total absolution by God from any earthly
responsibility for the offense as such, a divine act of clemency no human
court can reverse, qualify, much less disregard. It is an inherent inalienable
human right of every individual not to be subject to imputation of criminal
liability in any sense, unless his guilt of the crime charged against him has
been duly proven beyond reasonable doubt in a duly held criminal
proceeding. The intervention of death of the accused in any case is an
injunction by fate itself that no criminal liability whatsoever should be imposed
on him, not only because from the very nature of the situation, it is impossible
to do so but also because it would be a juridical absurdity to contemplate
such a legal concept. In short, death ex-anguishes the crime, and, corollarily,
all its consequences.
Indeed, it is but logical to hold that the civil liability resulting from criminal
liability under Artide 100 of the Revised Penal Code would have no basis
unless criminal responsibih"ly is fixed or exists. It has been said that civil
liabilitv under this provision "is rooted in the criminal liability". 1 In this
connection and adjectively, Section 1 of Rule 111 stipulates that "when a
criminal action is instituted, the civil action for recovery of civil liability arising
from the offense charged is impliedly instituted with the criminal action, etc."
But it must be emphasized that these legal precepts refer exclusively to the
civil liability consequent of the offense in its juridical essence as a crime, it
being elementary on our legal system that the same act my give rise to civil
responsibility independent of that resulting from the commission of the act as
a crime.
Thus it is entirely possible for one to be fee from civil ability directly rooted in
the act viewed as a violation of the penal law and still be liable civilly for it
considered otherwise as an infringement of a right based on a created by
contract or by laws other than the criminal law. A consistent host of
jurisprudence, too to the bench and bar to need particular citation hem exists
upholding the right of a party aggrieved by an act in nature to indemnity,
restitution or reparation, notwithstanding the absence or failure of the usual
prosecution, in view of the provisions of the pertinent articles of the Civil
Code on Human Relations and Section 2 of Rule III. Stated the same act or
got Of facts can be the subject of obligations arise at the same time thru the
different modes contemplated in Article 1157 of the Civil Code providing that
"obligations arise from (1) lave, (2) contracts; (3) quasi-contracts; (4) acts or
omissions punished by law, and (5) quasi-delicts." Thus, that an act or
omission is punished by law, thereby making the actor civilly liable therefor,
does not exclude simultaneous liability of the for the same act viewed also as
one giving rise to an obligation under the another law, and/or under a
contract, quasi-contract or quasi-delict, with the sole qualification that the
aggrieved party cannot recover damages more than once for the same act or
omission. (See Art. 2177, Civil Code.)
I am confident that the points I have just discussed are beyond debate. And
as I see it my learned colleagues in the majority and I are agreed that in the
light of the legal Principles I have stated, there can be no doubt that the
estate of Sendaydiego could be held liable for the acts of the d that can be
proven to have damaged the Province of Pangasinan in spite of the of
Sendaydiego's appeal by reason of his death. Our possible disagreement
relates only to the procedural aspect of the matter.
The main opinion justifies the imposition of civil liability upon said estate
within this appeal proceedings, thereby sing with the filing of a separate civil
action for the In my view, the dismissal of Sendaydiego's appeal amounts, as
I have said to his acquittal This acquittal to my mind is different juridically
from one based on liable doubt bemuse as I have only intimated earlier, it is
a total absolution by fate itself which carries with it y, exemption from or
extinction of the civil liability as if the Court had hold that the act from which
the civil (action) might arise did not exist (Section 2 (e), Rule 111.) But this is
not to say that the state is already exonerated altogether from another kind of
civil liability for indemnity, restitution or reparation, for under the unbroken
line of precedents I have already referred to, the pertinent provisions on
Human Relations of the Civil Code, particularly Article 30, come into play, for
under this cited provision, the total absolution of Sendaydiego based on his
death becomes virtually immaterial, since ths provision contemplates
prosecution of the civil liability arising from a criminal offense without the
need of any criminal proceeding to prove the commission of the crime as
such, that is, without having to prove the criminal liability of the defendant so
long as his act causign damage or prejudice to the offended party is proven
by a preponderance of evidence. This article provides, "when a seperate civil
action is brought to demand civil liability arising from a criminal offense, and
no criminal proceedings, are instituted during the pendency of the civil case,
a preponderance of evidence shall likewise be sufficient to prove the act
complained of."
My reading of the existing jurisprudence is that the civil liability not based on as limited to that of the criminal liability of the appellant. It is my humble view
the act as crime has to be prosecuted in a te civil action and not within the that the dismissal should be unqualified and that the offended parties
same criminal proceedings wherein the accused has been acquitted or the concerned should be left to pursue their remedies, if they so desire, in the
case against him is terminated with exonerative consequence. If there is any appropriate separate civil action contemplated both in the Civil Code and in
jurisprudence to the contrary, it is still isolated and is not binding precedent. Rule 111, as explained above. I admit this view might entail the institution of
Worse, in my opinion, it is based on what I consider to be the erroneous what is virtually a repetitive proceeding, but I cannot see any way of avoiding
premise that Article 29 of the Civil Code does not mean literally what it says. what the unequivocal language of the pertinent legal provisions mandate,
Textually, this article states: unless I make myself a party to judicial legislation, which I believe it is not
constitutionally permissible for me to do, no matter how practical the
When the accused in a criminal prosecution is acquitted on procedure might be
the ground that his guilt has not been beyond reasonable
doubt, a civil action for damages for the same act or
omission may be instituted. Such action requires only a
preponderance of evidence. Upon motion of the defendant,
the court may require the plaintiff to file a bond to answer for
damages in case the complaint should be found to be
malicious.

If in a criminal case the judgment of acquittal is based upon

reasonable doubt, the court shall so declare. In the absence
of any declaration to that effect, it may be inferred from the
text of the decision whether or not the acquittal is due to that
ground.

Definitely and unequivocally, what it authorizes is that "a civil action for
damages for the same act or omission may be instituted." It does not say that
the civil action joined with the criminal action, as provided for in Section 1 of
Rule 111, shall survive and be the one continued. I reiterate that what is left
to the offended party after the death of an accused before conviction is the
right to institute a civil action for damages for the same act or omission
pursuant to Articles 29 and 30 of the Civil Code and Sections 2 and 3 (c) of
Rule 111 of the Rules of Court.

All these notwithstanding, for the purposes of the instant case, I am willing to
take the position that since the point I am pressing on is more or less
procedural or remedial in nature, and perhaps, the failure of the parties
concerned to seriously object to the procedure pursued in the main opinion
could be a sufficient excuse for not following what I feel is the proper way of
dealing with the civil liability incurred by the estate of the deceased
Sendaydiego, hence my concurrence, in the qualified sense implicit in this
separate opinion, in the dispositive portion of the decision herein.

May I add here that the foregoing reasons explain why I have always insisted
that when appeals in criminal cases before us have to be dismissed by
reason of the death of the appellant, it is not proper to qualify such dismissal
 Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
 
G.R. No. 131714 November 16, 1998
EDUARDO R. VACA and FERNANDO NIETO, petitioners,
vs.
COURT OF APPEALS and the PEOPLE OF THE
PHILIPPINES, respondents.
MENDOZA, J.:
Petitioners seek a review of the decision, dated October 25, 1996, 1 and the
resolution, dated December 2, 1997, 2 of the Court of Appeals, affirming their
conviction by the Regional Trial Court of Quezon City (Branch 100) for
violation of B.P. Blg. 22, otherwise known as the "Bouncing Checks Law."
The facts are as follows:
Petitioner Eduardo R. Vaca is the president and owner of Ervine
International, Inc. (Ervine), which is engaged in the manufacture and sale of
refrigeration equipment, while his son-in-law, petitioner Fernando Nieto, is
the firm's purchasing manager. On March 10, 1988, petitioners issued a
check for P10,000.00 to the General Agency for Reconnaissance, Detection,
and Security, Inc. (GARDS) in partial payment of the security services
rendered by GARDS to Ervine. The check was drawn on the China Banking
Corporation (CBC). When deposited in the Philippine Commercial
International Bank (PCIBank) branch at Shaw Boulevard, Mandaluyong, the
check was dishonored for insufficiency of funds.
On March 29, 1988, GARDS wrote Ervine a letter in which it demanded
payment in cash of the amount of the check within seven days from notice.
The letter was received by Ervine on the same day, but petitioners did not
pay within the time given.
On April 13, 1988, petitioners issued a check for P19,860.16 to GARDS. The
check was drawn on the Associated Bank. The voucher accompanying it
stated that the check was to replace the dishonored check, the P9,860.16
balance being partial payment for Ervine's outstanding account. The check
and the voucher were received by a GARDS messenger, Nolan C. Pena, on
April 15, 1988, but GARDS did not return the dishonored check.
On April 14, 1988, GARDS Operations Manager Jovito C. Cabusara filed a
criminal complaint against petitioners for violation of B.P. Blg. 22. After
preliminary investigation, an information was filed in the Regional Trial Court
of Quezon City (Branch 97). However, the case was dismissed by the court
on May 11, 1989, upon motion of the prosecution, on the ground that Ervine
had already paid the amount of the check.
On September 18, 1989, GARDS, through its Acting Operations Manager
Eduardo B. Alindaya, filed another complaint for violation of B.P. Bldg. 22
against petitioners. This resulted in the filing of an information against
petitioners in the Regional Trial Court of Quezon City (Branch 100). After
trial, petitioners were found guilty of the charge and each was sentenced to
suffer one (1) year imprisonment and to pay a fine of P10,000.00 and the
costs.
On appeal, the Court of Appeals affirmed the decision. It subsequently
denied petitioners' motion for reconsideration. Hence, this petition.
Petitioners contend:
A. Respondent Court gravely erred in not
holding that the prosecution failed to prove
petitioners' guilt beyond reasonable doubt.
B. Respondent Court gravely erred in basing
conviction on the alleged weakness of the
evidence of the defense rather than on the
strength of the evidence of the prosecution.
C. Respondent Court erred in not acquitting
petitioners on grounds of "mistake of fact"
and "lack of knowledge."
Petitioners pray that the case against them be dismissed or, in the
alternative, that the decision of the trial court be modified by sentencing each
to an increased fine but without imprisonment.
By supplemental petition, dated January 29, 1998, petitioners submitted an
affidavit of desistance executed by GARDS president Dominador R. Santiago
which states that the case arose from a mere "accounting difference"
between petitioners and GARDS, that the latter had not really suffered any
damage as a result of the issuance of the check in question and, that
GARDS was no longer interested in prosecuting the case.
On May 28, 1998, petitioners filed another supplemental petition, this time
invoking the recent decision in Lao v. Court of Appeals, 3 in which this Court
reversed a conviction for violation of B.P. Blg. 22 upon a showing that the
accused had no knowledge of the insufficiency of funds.
The Solicitor General opposes the appeal. He contends that the facts of Lao
v. Court of Appeals are different from those of the case at bar and that the
affidavit of desistance of Dominador Santiago is of no moment, such affidavit
having been made only after petitioners' conviction.
After due review of the decision in this case, we find that petitioners'
conviction for violation of B.P. Blg. 22 is well founded.
First. The elements of the offense penalized under B.P. Blg. 22 are: (1)
making, drawing, and issuance of any check to apply to account or for value;
(2) knowledge of the maker, drawer, or issuer that at the time of issue he
does not have sufficient funds in or credit with the drawee bank for the
payment of the check in full upon its presentment; and (3) subsequent
dishonor of the check by the drawee bank for insufficiency of funds or credit,
or dishonor of the check for the same reason had not the drawer, without any
valid cause, ordered the bank to stop paymnent. 4 The maker's knowledge is
presumed from the dishonor of the check for insufficiency of funds. 5 Thus, §2
of B.P. Blg. 22 expressly provides:
Sec. 2. Evidence of knowledge of insufficient funds. — The
making, drawing and issuance of a check payment of which
is refused by the drawee because of insufficient funds in or
credit with such bank, when presented within ninety (90)
days from the date of the check, shall be prima
facie evidence of knowledge of such insufficiency of funds or
credit unless such maker or drawer pays the holder thereof
the amount due thereon, or makes arrangements for
payment in full by the drawee of such check within five (5)
banking days after receiving notice that such check has not
been paid by the drawee.
In this case, after being notified on March 29, 1988 of the dishonor of their
previous check, petitioners gave GARDS a check for P19,860.16. They claim
that this check had been intended by them to replace the bad check they had
previously issued to the GARDS. Based on the testimony of a GARDS
accountant, however, the Court of Appeals found that the check was actually
payment for two bills, one for the period of January 16 to January 31, 1988 in
the amount of P9,930.08 and another one for the period of March 16 to
March 31, 1988 in the same amount. But even if such check was intended to
replace the bad one, its issuance on April 13, 1988 — 15 days after
petitioners had been notified on March 29, 1988 of the dishonor of their
previous check — cannot negate the presumption that petitioners knew of the
insufficiency of funds to cover the amount of their previous check. Sec. 2 of
B.P. Blg. 22 requires that such check be given within five (5) days from the
notice of dishonor to them.
Petitioners contend that, in accordance with the ruling in Lao v. Court of
Appeals,6 they should be acquitted because the preparation of checks is the
responsibility of the company accountant and all they do is sign the checks.
They claim that they rely on the word of the accountant that there are
sufficient funds in the bank to pay for the checks.
In the Lao case, the accused, as the Court found, had merely been made by
her employer, Premiere Investment House, to countersign checks in bank.
The accused was a mere employee who did not have anything to do with the
issuance of checks for the company. She did not know to whom the checks
would be paid as the names of payees were written only later by the head of
operations. Moreover, no notice of dishonor was given to her as required by
B.P. Blg. 22 §2. It could thus rightly be concluded that the accused issued
checks to apply to account not knowing that at the time of issuance funds
were insufficient to pay for the checks.
Petitioners in this case cannot pretend ignorance of the insufficiency of funds.
While it may be true that it was the company's accountant who actually
prepared the rubber check, the fact remains that petitioners are the owners
and officers of the company. Sec. 1 of B.P. Blg. 22 provides that "Where the
check is drawn by a corporation, company, or entity, the person or persons
who actually signed the check in behalf of such drawer shall be liable under
this Act.
In fact, petitioner Nieto testified that after the check in question was
dishonored, he instructed their company accountant to prepare a
replacement check.7 This belies petitioners' claim that they had no hand in
the preparation of checks8 and shows that petitioners were in control of the
finances of the company.
Second. The affidavit of desistance of the GARDS president deserves no
more than passing mention. The claim that this case was simply the result of
a misunderstanding between GARDS and petitioners and that the former did
not really suffer any damage from the dishonor of the check is flimsy. After
prosecuting the case below with tenacity, complainants going so far as to file
another complaint after their first one had been dismissed, it is trifling with
this Court for complainants to now assert that the filing of their case was each ordered to pay a fine of P20,000.00 equivalent to double the amount of
simply a mistake. It is for reasons such as this the affidavit of desistance, like the check.
retractions, are generally disfavored. 9 The affidavit in this case, which was
made after petitioners' conviction, is nothing but a last-minute attempt to save SO ORDERED
them from punishment. Even if the payee suffered no damage as a result of
the issuance of the bouncing check, the damage to the integrity of the Melo and Puno, JJ., concur.
banking system cannot be denied. Damage to the payee is not an element of
the crime punished in B.P. Blg. 22.
Martinez, J., is on leave.
Third. Petitioners pray that, in the alternative, the penalty be modified by
deleting the sentence of imprisonment and, in lieu thereof a fine in an
increased amount be imposed on them. In support of their plea, they allege
that they do not have any record of prior conviction; that Eduardo Vaca is of
advanced age (late 60s); and, that they come from good families. Petitioners
claim that "with their family background and social standing there is no
reason why they, will refuse to pay a due and demandable debt of only
P10,000.00. It is precisely because of their founded belief that the subject
obligation has been paid that they refused to be intimidated by a criminal
charge."

The Court of Appeals dismissed these allegations as irrelevant to the

question of petitioners' guilt. We think so ourselves. However, we believe that
they can be considered in determining the appropriate penalty to impose on
petitioners.

B.P. Blg. 22, §1, par. 1 provides a penalty of "imprisonment of not less than
thirty days but not more than one (1) year or by a fine of not less than, but not
more than double, the amount of the check which fine shall in no case
esceed two hundred thousand pesos, or both such fine and imprisonment at
the discretion of the Court." Petitioners are first-time offenders. They are
Filipino entrepreneurs who presumably contribute to the national economy.
Apparently, they brought this appeal, believing in all good faith, although
mistakenly, that they had not committed a violation of B.P. Blg. 22.
Otherwise, they could simply have accepted the judgment of the trial court
and applied for probation to evade a prison term. It would best serve the
ends of criminal justice if in fixing the penalty within the range of discretion
allowed by §1, par. 1, the same philosophy underlying the Indeterminate
Sentence Law is observed, namely, that of redeeming valuable human
material and preventing unnecessary deprivation of personal liberty and
economic usefulness with due regard to the protection of the social order. 10 In
this case we believe that a fine in an amount equal to double the amount of
the check involved is an appropriate penalty to impose on each of the
petitioners.

WHEREFORE, the decision of the Court of Appeals is AFFIRMED with the

modification that the sentence of imprisonment is deleted and petitioners are
 Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION  and Efren Alvaro, are deemed cancelled.
G.R. No. 118816 July 10, 1998
SANTIAGO ARGONCILLO, RICHARDO BALBONA and POLICARPIO
UMITEN, petitioners,
vs
COURT OF APPEALS and THE PEOPLE OF THE
PHILIPPINES, respondents.
KAPUNAN, J.:
This is a petition to review the decision 1 of the Court of Appeals which
affirmed in toto the decision of the Regional Trial Court of Roxas City, Branch
15, 2 finding petitioners herein guilty of "illegal fishing with the use of an
explosive," the dispositive portion of which reads:
WHEREFORE, the Court finds the accused, Policarpio
Umiten, Santiago Argoncillo and Richard Balbona, guilty
beyond reasonable doubt for the crime of illegal fishing with
the use of an explosive punishable under Section 33 in
relation to Section 38 of Presidential Decree No. 704 dated
May 16, 1975 as amended by Presidential Decree No. 1058
dated December 1, 1976 and each shall suffer a straight
penalty of twenty (20) years imprisonment.
However, accused, Johnson Sucgang, Elvis Villar and Efren
Alvaro, are acquitted for failure of the prosecution to prove
their guilt beyond reasonable doubt.
The fish sample is forfeited in favor of the government.
Considering the penalty imposed upon the accused,
Policarpio Umiten, Santiago Argoncillo and Richard Balbona,
the bail bond for their provisional liberty is increased to
Twenty Thousand (P20,000.00) Pesos each effective
immediately upon promulgation. They shall not be released
from detention until they put up an appropriate bail bond for
their provisional liberty.
The property bond of accused, Johnson Sucgang, Elvis Villar
Costs against the convicted accused.
SO ORDERED. 3
On August 1, 1990, an Information was filed by the Provincial Fiscal of Capiz
charging Johnson Sucgang, Policarpio Umiten, Elvis Villar, Santiago
Argoncillo, Richardo Balbona and Efren Alvaro with illegal fishing (with the
use of dynamite), as follows:
That at or about 6:30 o'clock [sic] in the evening of May 7,
1990, in the sea water of Barangay Basiao, Ivisan, Capiz,
Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, conspiring, confederating
and helping one another, wilfully, unlawfully and feloniously
catch, take, gather and have in their possession and control
different species of fish with the use of explosives. 4
Upon arraignment on September 11, 1990, the accused, with the assistance
of counsel, pleaded "not guilty" to the offense charged. Trial ensued
thereafter.
The lower court synthesized the evidence presented by the prosecution as
follows: 5
Due to reports of rampant illegal fishing at Barangay Basiao, Ivisan, Capiz,
personnel from the Department of Agriculture and Natural Resources
specifically from the Bureau of Fisheries as well as the Barangay Captain of
said place assisted by the local policemen created a team to conduct
surveillance within the Ivisan Bay. Thus, around 5:30 in the afternoon of May
7, 1990, a team riding in two (2) pumpboats from the Barangay Basiao wharf
proceeded along the waters of Ivisan Bay. Riding in one pumpboat were
Persinefles U. Oabe, the Barangay Captain of said place; Rolando Amoroso,
an employee of the Bureau of Fisheries; Pat. Rafael Tupaz, a member of the
local Integrated National Police and Remegio Unasin, a barangay
councilman who acted as the pilot. In the other pumpboat were Joey de la
Cruz, a co-employee of Rolando Amoroso; Pat. Reggie Uadan and Enido
Baldesimo. Now and then, the team had to stop and listen for possible
occurrences of illegal fishing within their vicinity. Around 6:30 of the same
evening while standing by with their engines off, in a place facing Barangay
Culasi, they heard an explosion. Sensing it was caused by dynamite, they
proceeded to the area around five hundred meters (500 m.) away from them.
After ten minutes of navigation, the team arrived at the scene in question
which was near an islet. They surrounded the area. At a distance of around
ten meters, Joey de la Cruz, an employee of the Bureau of Fisheries and
Aquatic Resources, saw three persons diving into the water. Thereafter, they
would surface and throw their catch of fish to the unmotorized banca around
four meters long nearby. In the seashore of said islet, around three to four
meters away from these three persons floating in the water, were three other
persons standing in the rocky portions around three meters apart. These six
persons tried to escape but Rolando Amoroso, the co-employee of Joey de la
Cruz, advised them not to do so and introduced themselves as law enforcers.
The team found out that the fishes they caught were deep sea fish of four
kinds locally known as "vulgan," "bulawis," "pacol," and "bag-angan." Joey de
la Cruz gathered seven fish samples from their banca while Rolando
Amoroso went down from the pumpboat and proceeded to the islet.
However, upon inspection, he failed to find any explosive (dynamite) either
on the seashore or on the banca. No paraphernalia used in dynamite fishing
were found. Both Joey de la Cruz and Rolando Amoroso recognized the six
persons as the herein accused by their faces.
Persinefles U. Oabe, barangay captain of Barangay Basiao, who was with
the team riding in a pumpboat with Rolando Amoroso identified the three
persons retrieving fish from the water as Policarpio Umiten, Santiago
Argoncillo and Richard Balbona while the other three persons standing on
the rocky portions of the islet as Johnson Sucgang, Elvis Umiten and Efren
Alvaro.
The team apprehended the six accused and brought them to the fish cage of
the barangay captain located within the same barangay. While on their way,
Joey de la Cruz externally examined the fish samples.
Upon their arrival at the fish cage, another external examination was
conducted by Joey de la Cruz and Rolando Amoroso. In both external
examinations, the two found out that the fishes were caught with the use of
explosives because blood was oozing from their operculums and their eyes
were protruding.
An on-the-spot investigation was conducted but the accused denied any
culpability. They were then released on the strength of their promise to report
to the local police the following day.
The fish samples were then placed in a plastic bag filled with ice at the house
of Barangay Captain Persinefles U. Oabe that evening. In the morning, Joey
de la Cruz and Rolando Amoroso brought the fish samples to their office in
Roxas City where they conducted an internal examination. The examination
revealed that the fish samples were caught with the use of explosives
because their air bladders were raptured and deeply stained with blood; the
vertebral columns were broken but with bloodstains; their ribs were broken;
and there were blood clots in their abdomens. Joey de la Cruz and Rolando
Amoroso rendered a written report of their internal examination to the
Provincial Agricultural Officer.
The testimonies of Joey de la Cruz, Rolando Amoroso, and Persinefles U.
Oabe above were corroborated by Pat. Rafael Tupaz, one of the police
escorts of the team.
Sgt. Sergio Ordales, a member of the local police of the municipality of Ivisan
testified that while on duty in the morning of May 8, 1990, herein six accused
arrived at their station. He asked why they were there and they answered
that they were told to report to the police station. He learned from them that
they were arrested for illegal fishing with the use of explosives.
On the other hand, the lower court portrayed the evidence presented by the
version of the defense, thus:
All the accused denied the imputation of the prosecution.
Policarpio Umiten, Santiago Argoncillo, Richard O. Balbona were uniform in
alleging that around 4:00 in the afternoon of May 7, 1990, they dropped a
fishnet about two hundred (200) "armslength" and one (1) meter in width at
the scene where they were apprehended. This method they locally call
"patuloy" requires that the fishnet be retrieved every hour to collect its catch.
The trio went back to the place near the islet in question around 6:30 in the
evening for the purpose of collecting their catch from the fishnet. They had
not been able to collect all their catch from the net when the team of law
enforcers, prosecution witnesses herein, arrived. They were asked whether
they heard an explosion. After they denied having heard any, Barangay
Captain Persinefles U. Oabe, told the accused to go with them. The team got
seven pieces of fish samples. The accused left around one and one-half kilos
of fish they had gathered at the time the team of law enforcers arrived. They
were then brought to the fish cage owned by Persinefles U. Oabe at
Barangay Basiao.
Above three accused would like the Court to believe that the seven pieces of
fish samples taken by the team of fishing law enforcers were the catch of
their fishnet they locally called "patuloy."
On the other hand, Elvis Villar testified that he and Efren Alvaro were
together in going to the islet in question, riding in an unmotorized banca to
gather shells locally called "suso" and "butlogan" for viand. Both started
gathering shells under the stones in the islet around 5:30 in the afternoon.
While they were preparing to go home at around 6:30 in the evening, the
team of law enforcers riding in motorized pumpboats arrived. The barangay
captain and the personnel from the Bureau of Fisheries and Aquatic
Resources asked them whether they heard an explosion. After they denied
having heard any, they were told by the barangay captain to board their
pumpboats. They obliged, leaving the shells they had gathered. They were
then brought to the fish cage of the barangay captain.
Although accused Johnson Sucgang admitted his presence in the islet in
question, he offered a different explanation. He testified that he went to said
place to look for "pulutan" requested by his customer, Wilfredo Arcangeles.
Being an operator and manager of Virgen Beach Resort located at Sitio
Manangkalan, he obliged. Thus, between 5:00 to 5:30 in the afternoon of
May 7, 1990, he left his resort riding in a banca. He paddled his way towards
the islet where he saw two persons at the bank while the other three were on
the water. He went ashore. Later, the barangay captain and his companions
riding in two pumpboats arrived. Like his co-accused, he was asked if he
heard an explosion. After he denied hearing any, the barangay captain told
him to go with them. They were all brought to the fish cage of the barangay
captain for questioning.
Wilfredo Arcangeles corroborated the claim of Johnson Sucgang. He
confirmed that he requested the latter to look for "pulutan" since he had
visitors from Bacolod City prompting Johnson Sucgang to look for some. He
saw the accused leave in a banca and affirmed that he had no dynamite with
him. 6
On September 30, 1991, the trial court rendered its decision which, as stated
at the beginning, was affirmed by the Court of Appeals.
Hence, this petition.
Petitioners point out that the fact that neither explosives nor related
paraphernalia were found in their possession is an indication of their
innocence.
We do not agree. First, it is quite probable that petitioners dumped these
materials into the sea while the raiding party was approaching. Moreover,
Section 33, Presidential Decree No. 704, as amended by Presidential Decree
No. 1058, provides:
Sec. 33. Illegal fishing; . . . — It shall be unlawful for any
person to catch, take or gather, or cause to be caught, taken
or gathered fish or fishery/aquatic products in Philippine
waters with the use of explosives, obnoxious or poisonous
substance, or by the use of electricity as defined in
paragraphs (l), 7 (m) 8 and (d), 9 respectively, of Sec. 3 hereof
...
x x x           x x x          x x x
The discovery of dynamite, other explosives and chemical
compounds containing combustible elements, or obnoxious
or poisonous substance, or equipment or device for electric
fishing in any fishing boat or in the possession of a fisherman
shall constitute a presumption that the same were used for
fishing in violation of this Decree, the discovery in any fishing
boat of fish caught or killed by the use of explosives,
obnoxious or poisonous substance or by electricity shall
constitute a presumption that the owner, operator or
fisherman were fishing with the use of explosives, obnoxious
or poisonous substance or electricity.
In Hizon vs. Court of Appeals, 10 this Court held that the law, as contained in
the last paragraph of Section 33, creates a presumption that illegal fishing
has been committed when fish caught or killed with the use of explosives,
obnoxious or poisonous substances or by electricity are found in a fishing
boat. In this case, it cannot be denied that the fishes found in petitioners'
banca were caught or killed by the use of explosives.
The Report 11 of Bureau of Fisheries employees Joey de la Cruz and
Rolando Amoroso states:
Republic of the Philippines
Department of Agriculture
Roxas City
1990-05-08
The Provincial Agricultural Officer
Department of Agriculture
Roxas City 1. External Manifestation

Sir: a. Blood, oozing on the operculum.

I have the honor to submit to this office the result of the 2. Internal Manifestation
scientific fish examination conducted on the fish samples
taken from the possession of Mr. Johnson Umiten Sucgang, a. Air bladder raptured deeply stained with
38 years old, married and resident of Barangay Basiao, blood;
Ivisan, Capiz and company on May 7, 1990, 6:30 PM by
combined elements of the Department of Agriculture, PC/INP b. Vertebral column broken with blood stain.
Unit of Ivisan, Capiz and Barangay officials of Basiao, Ivisan,
Capiz conducting sea borne patrol on illegal fishing.
Conclusion:
Source of fish samples : Sea water of Brgy., Basiao, Ivisan,
The fish samples manifested signs that said fish were caught
or killed by the use of explosives.
Capiz
Examined by:
Fish samples taken from : Johnson U. Sucgang, 38 years
old,
(Sgd.)
married, of Brgy., Basiao, Ivisan,
JOEY I. DE LA CRUZ
Capiz, et. al.
(Sgd.)
Date fish samples taken : May 7, 1990 at 6:30 PM
ROLANDO E. AMOROSO
Date fish samples examined : May 7, 1990 at 7:00 PM
Fish Examiners
Name offish samples taken Number Weight Value
Joey de la Cruz affirmed the above findings in his testimony before the trial
court. 12 Said testimony was corroborated by Rolando Amoroso, a co-
Local Name employee of De la Cruz in the Bureau of Fisheries. The latter further stated
that the fish were killed specifically by dynamite:
Bulawis 2 pcs. 300 gms P 8.00
ATTY. LUMAWAG:
Bulgan 2 pcs. 200 gms 10.00
Q  Can you identify whether it was through
Pakol 1 pc. 100 gms 2.00 dynamite or any other means of explosive
the fish was caught?
Bag-angan 1 pc. 150 gms 3.00
A Yes, sir.  Because you know when we
Bukod 1 pc. 150 gms 3.00 saw, when we conducted the external
manifestation of the fish, not only blood
Characteristics noted on the fish examined:
 oozing from the ears but also from the eyes
that were protruding.
Q  Is it not possible that it be caused also
through fishing by means of electricity?
A No.
Q Other kinds of explosives?
A Yes, explosives.
Q For example, what other aside from
dynamite?
A What explosives aside from dynamite, no
other. 13
The trial court correctly gave credence to these testimonies, thus:
Above three (3) accused would like the Court to believe that
the seven (7) pieces of fish samples taken by the team of
fishing law enforcers were the catch of their fish net they
locally called [sic] "patuloy."
x x x           x x x          x x x
With the external and internal examination by Joey de la
Cruz and Rolando Amoroso showing that these fishes were
caught with the use of explosive, bare denial of above three
(3) accused that they caught them by means of a fishing net
they locally call "patoloy" is insufficient to disprove such
finding. It is simply a superiority of weight of object evidence
over testimonies of the accused.
Joey de la Cruz is an agricultural technologist of their office
and a graduate of Bachelor of Science in Fishery. Joey de la
Cruz and Rolando Amoroso had undergone training course
in fishery laws and implementing regulations as well as
actual demonstrations in sea to practice what they had
learned in theory. [As] . . . technical personnel of the Bureau
of Fishery and Aquatic Resources, their finding after an
internal and external examination of fish samples to prove
they were caught with the use of explosives should be
presented to show that these prosecution witnesses
fabricated their story. There is no ulterior motive which
implied them to testify as they did. Furthermore, no evidence
was introduced by the defense to impeach their credibility
nor evidence to discredit their persons. Credibility of the
testimonies having remained unimpeached, it shall be given
great weight in the determination of the guilt of the accused.
Besides, being public officers to enforce fishing laws, in the
absence of ill-motive on their part, to impute to the accused a
serious offense of illegal fishing with the use of explosive, the
presumption is that there was regular performance of public
duty on their part. 14
The presumption that the crime of illegal fishing was committed has,
therefore, been clearly established. Such presumption, however, is
merely  prima facie, and may be rebutted by the accused. 15
Petitioners attempt to overcome said presumption by disputing the findings of
prosecution witnesses Joey de la Cruz and Rolando Amoroso. They claim
that since not all their catch were examined, there can be no conclusive proof
that the fish were killed with the use of explosives. 16
They also question the credibility of these witnesses, thus:
. . . . If it is true that prosecution witness Joey dela Cruz,
allegedly a technical personnel [sic] of the Bureau of
Fisheries and competent to determine if a fish is killed by
dynamite blast, found the 7 fishes to have been killed by a
dynamite blast, it was unnatural for the team not to arrest the
petitioners on the spot. . . . 17
Petitioners' arguments have no merit.
It is ridiculous to have expected that all the fish found in the accused's fishing
boat would be subjected to an examination. It is sufficient that, as in the case
at bar, a random sample of the accused's catch was examined and found to
have been killed with the use of explosives. A patent impracticality would
result if the law required otherwise.
The fact that the patrol team did not immediately deliver the accused to the
municipal jail does not diminish the credibility of the above witnesses.
Persinefles U. Oabe, the barangay captain of Basiao, gave a plausible
explanation for the accused's release:
 A We released those six persons because if
we bring them to the municipality of Ivisan
we have no available transportation because
they were only riding in a single motor
vehicle. 18
The want of available transportation is not surprising. The dearth in law
enforcement facilities, especially in the provinces, is not lost on this Court
and is a matter of judicial notice.
In fine, we find no reason to disturb the assessment of the trial court
regarding the credibility of prosecution witnesses Joey de la Cruz and
Rolando Amoroso. Its findings are accorded great respect by appellate
tribunals since trial courts have the advantage of examining the witnesses'
testimonies and observing their demeanor first hand. 19
Petitioners also argue that they could not have been caught fishing with the
use of dynamite in shallow waters because the fishes used as evidence were
described by the prosecution witnesses as "deep sea fishes." According to
petitioners:
The seven (7) fishes that the prosecution used as evidence
were described by prosecution witnesses as "deep sea
fishes". But it has been shown in the testimony of petitioner
Santiago Argoncillo that he and the other petitioners were
fishing in shallow waters about 1 1/2 meters deep (TSN,
March 13, 1991, p. 7) and using fishnet 200 armslength long
and 1 meter wide (TSN, March 13, 1991, p. 4). This
testimony was not rebutted by the prosecution. In fact, the 3
accused who were acquitted by the trial court were found by
the prosecution witnesses standing on the seashore near
where the petitioners were fishing (TSN, January 23, 1991,
pp. 5 to 6). That petitioners would engage in dynamite fishing
in shallow waters and near the seashore would be unnatural.
The allegation that the petitioners were fishing with the use
of explosive is therefore not credible. 20
We are not persuaded.
The fishes caught by petitioners were not actually "deep sea fishes" in the
sense that they came from the deep portions of the sea as distinguished from
shallow waters or waters near or along the shores. The fishes caught were
locally known as "vulgan," "bulawis," "pacol," and "bag-angan." They are
generally described as "isda sa bato" or "bottom feeders." The following
excerpt from the testimony of fish examiner Joey de la Cruz shows that the
term "deep sea fishes" arose from the trial court's erroneous translation of
"isda sa bato" or "bottom feeders" which were the terms actually employed
by said witness to describe the subject fishes:
ATTY. LUMAWAG:
Q What were the species of the fishes that
you recovered from that banca?
A Bottom feeders.
COURT:
"Isda sa bato," in English?
A Bottom feeders.
COURT:
Deep sea fishes. 21
Petitioners next contend that if it is true that they were engaged in illegal
fishing, it would be "unnatural" for them to use a boat which would make it
difficult for them to escape from the law enforcers riding motorized boats. 22
Petitioners' contention is too ludicrous to warrant serious consideration. The
law punishing illegal fishing does not require the use of motorized banca or
boat for the crime to be committed. Concededly, a motorized banca can
better serve those engaged in illegal fishing for purposes of eluding law
enforcers. However, not everyone can financially afford to fit a motor in his
banca. Indeed, petitioner Argoncillo admitted that the banca that they were
using was leased from a certain Dikoy Odrunia. 23
Petitioners likewise aver that they did not flee when the law enforcers arrived,
and even voluntarily reported to the Ivisan Police Station the following
morning. They submit that their alleged non-flight should strengthen their
claim of innocence. 24
We disagree. There is no established doctrine to the effect that, in every
instance, non-flight is an indication of innocence. 25 Moreover, even if they
wanted to, petitioners could not have possibly eluded the law enforcers who
were in two pump boats. Attempts to flee would also have been useless
since petitioners were already identified by the barrio captain.
Lastly, the fact that the accused were asked by the patrol team whether or e. Habitual delinquents (Art.
not they heard an explosion is not in any way reflective of petitioners' 62, par. 5).
innocence. We deem such inquiry as nothing more than a part of the
investigative process. It is quite common, and in most cases, necessary, for Recidivists are entitled to an indeterminate
law enforcers to ask questions to help them ascertain whether or not there sentence. (People v. Jaramilla, L-28547,
exists probable cause to arrest persons suspected of committing a crime. Feb. 22, 1974). Offender is not disqualified
to avail of the benefits of the law even if the
Having failed to discharge themselves of the burden of disproving that they crime is committed while he is on parole.
have committed illegal fishing, the Court is left with no alternative but to affirm (People v. Calreon, CA 78 O.G. 6701, Nov.
petitioners' conviction. 19, 1982).

The penalty imposed by law 26 for illegal fishing if explosive is actually used is f. Those who escaped from
imprisonment ranging from twenty (20) years to life imprisonment. The confinement or those who
Indeterminate Sentence Law provides that if, as in this case, the offense is evaded sentence.
punished by a law other than the Revised Penal Code, the court shall
sentence the accused to an indeterminate sentence, the maximum term of g. Those granted conditional
which shall not exceed the maximum fixed by said law and the minimum shall pardon and who violated the
not be less than the minimum term prescribed by the same. 27 The trial court terms of the same (Art.
therefore erred when it sentenced petitioners to "suffer a straight penalty of 159). (People v. Corral, 74
twenty (20) years imprisonment." 28 In Spouses Jose and Trinidad Bacar vs. Phil. 359).
Judge Salvador P.  de Guzman, Jr., 29 we held that it was erroneous to
impose a straight penalty of six (6) years imprisonment on the accused for h. Those whose maximum
homicide. We explained: period of imprisonment does
not exceed one year.
. . . It is basic law that . . . the application of the
Indeterminate Sentence Law is mandatory where Where the penalty actually imposed does
imprisonment exceeds one (1) year, except only in the not exceed one year, the accused cannot
following cases: avail himself of the benefits of the law, the
application of which is based upon the
a. Offenses punished by penalty actually imposed in accordance with
death or life imprisonment. law and not upon that which may be
imposed in the discretion of the Court.
b. Those convicted of (People v. Hidalgo, [CA] G.R. No. 00452-
treason (Art. 114), CR, Jan. 22, 1962).
conspiracy or proposal to
commit treason (Art. 115). i. Those who are already
serving final judgment upon
c. Those convicted of the approval of the
misprision of treason (Art. Indeterminate Sentence
116), rebellion (Art. 134), Law.
sedition (Art. 139, or
espionage (Art. 117). The need for specifying the minimum and maximum periods
of the indeterminate sentence is to prevent the unnecessary
d. Those convicted of piracy and excessive deprivation of liberty and to enhance the
(Art. 122). economic usefulness of the accused, since he may be
 exempted from serving the entire sentence, depending upon
his behavior and his physical, mental, and moral record. The
requirement of imposing an indeterminate sentence in all
criminal offenses whether punishable by the or by special
laws, with definite minimum and maximum terms, as the
Court deems proper within the legal range of the penalty
specified by the law must, therefore, be deemed
mandatory. 30

Accordingly, the proper penalty to be imposed upon the accused

should be an indeterminate penalty which is hereby set at twenty
(20) years as minimum to twenty-five (25) years as maximum.

WHEREFORE, the petition is hereby DISMISSED, and the decision of the

Court of Appeals is AFFIRMED with the modification that petitioners are
hereby sentenced to suffer an indeterminate penalty of imprisonment ranging
from twenty (20) years as minimum to twenty-five (25) years as maximum.

SO ORDERED.

Narvasa, C.J., Romero and Purisima, J., concur.

 Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
A.M. No. 276-MJ June 27, 1975
HADJIRUL TAHIL, complainant,
vs.
ATTY. CARLITO A. EISMA, Municipal Judge of Parang, Sulu, respondent.
RESOLUTION
ANTONIO, J.:
Respondent Municipal Judge Carlito A. Eisma, of Parang, Sulu, is charged
by complainant Hadjirul Tahil with dishonesty in not reporting regularly to his
office, contrary to the recitals of his daily time record. In his "Investigation,
Report and Recommendation" dated February 29, 1973, Judge Felix V.
Barbers of the Court of First Instance of Sulu, Branch III, 16th Judicial
District, who investigated the case, recommended the dismissal of the
charge.
According to the findings of the Investigating Judge:
... respondent has been regularly reporting to his office
except on certain days when he marked himself absent
during which he explained, his salary was correspondingly
deducted therefrom.
The filing of this complaint, the respondent declared, is
motivated by hatred, anger and revenge on the part of the
complainant. This is occasioned by the fact, when
complainant brought the bail bond of his nephew Bakkal
Ilahal charged in Criminal Case No. 241-N before the Court
of respondent, for approval of the latter. Because of the
failure of the bondsmen to appear before him, respondent
did not approve of the bail bond. Again on another occasion,
complainant filed in the Court of respondent a motion to
dismiss Criminal Case No. 372-N, wherein the same nephew
of the complainant, Bakkal Ilahal, is also charged with the
crime of illegal possession of firearms. A scrutiny of the
motion to dismiss and its annexes, offered in evidence by
respondent, will show that the same is based on documents
merely certified to by the clerk of the counsel of Bakkal
Ilahal. Respondent in his order denying this motion to
dismiss ruled:
"After a thorough perusal and study of the
issues involved in the motion to dismiss and
the opposition, thereto, the Court finds that
the reasons of Lt. Rodialo Gumtang in his
oral opposition are more logical and
justifiable because the evidence upon which
accused thru counsel relies in their motion to
dismiss are documentary in nature and the
Court is not in a position to accept this kind
of evidence without confronting persons who
executed and prepared the documents in
question. Furthermore, some of the
documents presented by accused thru
counsel are merely certified true copies, the
validity and originality of which are subject to
question.
"Accused thru counsel can have all the
opportunity to present all their evidence
during the trial of the case, hence, to pass
and decide upon the validity of the
documents attached to the motion to dismiss
is premature and the proper subject of a trial
on the merits.
"WHEREFORE, in view of the foregoing
consideration, this Court denies the motion
to dismiss of accused and orders that this
case be set for trial on April 15, 1971. Let
copy of this order be issued to the parties
with the warning that no postponements
shall be entertained.
"SO ORDERED."
Without going to the merits of the abovementioned two
cases, this Court finds that respondent acted judiciously on
the matter. His disapproval of the bail bond without the
bondsmen appearing before him in the first case (murder) is
correct, because as the approving officer he must satisfy
himself that those who made, the undertaking to bail the
accused are the same persons whose names appear on the
bail bond and whose signatures are affixed thereto,
otherwise, if only for the sake of friendship to accomodate
the complainant, would make the bond a useless scrap of
paper, and which respondent can be held responsible.
A scrutiny of the bail bond (Exhibit 1) which we believe is the
original thereof, the same is not even signed by the principal,
who is the accused to be bailed. Neither has it been shown
that the current taxes of the real properties offered as bond
had been paid. The receipts of payment or a certificate of the
municipal treasurer to this effect is not even attached, which
are requirements to be accomplished pursuant to existing
circulars of the Department of Justice.
As to the order denying the motion to dismiss in the other
case (illegal possession of firearm), this Court finds and is
convinced that respondent acted legally. A scrutiny of the
motion to dismiss and the grounds thereof, are grounds that
could be taken and proven during the trial on the merits of
the case. Respondent not having been satisfied with the
documents annexed to the motion which are purely certified
copies made by the clerk of the accused's counsel,
respondent acted correctly and legally.
On this score, complainant has all the reasons to be angry at
respondent taking into consideration their previous
friendship, and now respondent has failed to accomodate
him as hereinabove described. A lot of persons, because of
friendly relations they have with judicial authorities, consider
that when their wishes are not complied with or
accomodated in cases pending before the courts of which
they have an interest, it is the end of such friendship and to
their eyes the judge is not a friend but a foe. Their
nearsightedness on these matters could be like a poison to
their mental faculties so that they would like the judge who
failed to accomodate them, face their wrath and displeasure.
Complainant became wrathful, but wrath must be properly
channeled or it may work out a grave injustice. But, certainly,
a judge in the exercise of his judicial function, does not see
whether one is a friend or foe, whether one is influential or
not, but rather, whether he acts within the law he is to apply,
whether his actuations are prescribed by the rules of court
and whether he has acted judiciously.
As to the alleged falsification of the respondent of his daily
time record and the allegation that he only reports to his
office during Mondays and Thursdays, do not find credibility,
and naturally should not be given weight.
It appears, however, that in the aforementioned Criminal Case No. 241-N for
murder, respondent admitted having granted bail to the accused upon the
request of a congressman, despite his belief that the evidence of guilt against
the accused was strong. On the basis of this admission, the Judicial
Consultant recommends that the respondent Judge "be fined in an amount
equivalent to his salary for one (1) month and warned that a repetition of
such a breach of integrity will be dealt with more sternly."
Under the Constitution, all persons shall, before conviction, be bailable by
sufficient sureties, except those charged with capital offenses when evidence
of guilt is strong. The discretion of the court to grant bail in a capital offense,
before conviction, must be based upon the Court's determination as to
whether or not the evidence of guilt is strong. This discretion may only be
exercised after the evidence is submitted at the summary hearing conducted
pursuant to Section 7 of Rule 114 of the Rules.1äwphï1.ñët
Respondent's admission that he granted bail because of the request of a
congressman, despite his belief that the evidence of guilt against the
accused is strong, is indeed reprehensible. But it is not clear from the record
whether or not a summary hearing was conducted by respondent Judge in
Criminal Case No. 241-N for the purpose of bail and, on the basis of his
appreciation of the evidence submitted, granted bail to the accused.
Moreover, respondent was not specifically charged and investigated in this
regard, and in the absence of any specific finding that respondent gravely
abused his discretion in granting bail to the accused in said case, this Court
has no basis to impose a fine upon respondent.
WHEREFORE, in view of all the foregoing, the charge against respondent is
DISMISSED. Considering his admission, however, he is hereby admonished
to demonstrate a greater degree of competence, intellectual courage and
independence in the discharge of his judicial duties, for only in that manner
can he merit the judicial position that he occupies and the support and
confidence of the people.
Fernado (Chairman), Barredo, Aquino and Concepcion, Jr., JJ., concur.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 108747 April 6, 1995
PABLO C. FRANCISCO, petitioner,
vs.
COURT OF APPEALS AND THE HONORABLE MAXIMO C.
CONTRERAS, respondents.
BELLOSILLO, J.:
Probation is a special privilege granted by the state to a penitent qualified
offender. It essentially rejects appeals and encourages an otherwise eligible
convict to immediately admit his liability and save the state of time, effort and
expenses to jettison an appeal. The law expressly requires that an accused
must not have appealed his conviction before he can avail of probation. This
outlaws the element of speculation on the part of the accused — to wager on
the result of his appeal — that when his conviction is finally affirmed on
appeal, the moment of truth well-nigh at hand, and the service of his
sentence inevitable, he now applies for probation as an "escape hatch" thus
rendering nugatory the appellate court's affirmance of his conviction.
Consequently, probation should be availed of at the first opportunity by
convicts who are willing to be reformed and rehabilitated, who manifest
spontaneity, contrition and remorse.
As conceptualized, is petitioner entitled to probation within the purview of
P.D. 968, as amended by P.D. 1257 and P.D. 1990?
Petitioner's woes started when as President and General Manager of ASPAC
Trans. Company he failed to control his outburst and blurted —
You employees in this office are all tanga, son of a bitches
(sic), bullshit. Puro kayo walang utak  . . . . Mga anak ng
puta . . . . Magkano ba kayo . . . God damn you all.
Thus for humiliating his employees he was accused of multiple grave oral
defamation in five (5) separate Informations instituted by five (5) of his
employees, each Information charging him with gravely maligning them on
four different days, i.e., from 9 to 12 April 1980.
On 2 January 1990, after nearly ten (10) years, the Metropolitan Trial Court
of Makati, Br. 61, found petitioner guilty of grave oral defamation in four (4) of
the five (5) cases filed against him, i.e., Crim. Cases Nos. 105206, 105207,
105209 and 105210, sentenced him to a prison term of one (1) year and one
(l) day to one (1) year and eight (8) months of  prision correccional "in each
crime committed on each date of each case, as alleqed in the information(s),"
ordered him to indemnify each of the offended parties, Victoria Gatchalian,
Rowena Ruiz, Linda Marie Ayala Pigar and Marie Solis, P10,000.00 as
exemplary damages, and P5,000.00 for attorney's fees, plus costs of
suit.1 He was however acquitted in Crim. Case No. 105208 for persistent
failure of the offended party, Edgar Colindres, to appear and testify.
Not satisfied with the Decision of the MeTC, and insisting on his innocence,
petitioner elevated his case to the Regional Trial Court.
On 5 August 1991 the Regional Trial Court of Makati, Br. 59, affirmed his
conviction but appreciated in his favor a mitigating circumstance analogous
to passion or obfuscation. Thus —
. . . (he) was angry and shouting when he uttered the
defamatory words complained of . . . . he must have been
angry and worried "about some missing documents . . . as
well as the letter of the Department of Tourism advising
ASPAC about its delinquent tax of P1.2 million . . . . " the
said defamatory words must have been uttered in the heat of
anger which is a mitigating circumstance analogous to
passion or obfuscation.2
Accordingly, petitioner was sentenced "in each case to a STRAIGHT penalty
of EIGHT (8) MONTHS imprisonment . . . . " 3 After he failed to interpose an
appeal therefrom the decision.of the RTC became final. The case was then
set for execution of judgment by the MeTC which, as a consequence, issued
a warrant of arrest. But·before he could be arrested petitioner filed an
application for probation which the MeTC denied "in the light of the ruling of
the Supreme Court in Llamado v. Court of Appeals, G.R. No, 84850, 29 June
1989, 174 SCRA 566 . . . ."4
Forthwith he went to the Court of Appeals on certiorari which on 2 July 1992
dismissed his petition on the following grounds —
Initially, the Court notes that the petitioner has failed to
comply with the provisions of Supreme Court Circular No.
 28-91 of September 4, 1991. Violation of the circular is
sufficient cause for dismissal of the petition.
Secondly, the petitioner does not allege anywhere in the
petition that he had asked the respondent court to reconsider
its above order; in fact, he had failed to give the court
an.opportunity to correct itself if it had, in fact, committed any
error on the matter. He is, however, required to move for
reconsideration of the questioned order before filing a
petition for certiorari  (Sy It v. Tiangco, 4 SCRA 436). This
failure is fatal to his cause. It is a ground for dismissal of his
petition (Santos v. Vda. de Cerdenola, 5 SCRA 823; Acquiao
v. Estenso, 14 SCRA 18; Del Pilar Transit, Inc. v. Public
Service Commission, 31-SCRA 372).
Thirdly, it is obvious that respondent court did not commit
any capricious, arbitrary, despotic or whimsical exercise of
power in denying the petitioner's application for probation . . .
. that "no application for probation shall be entertained or granted if the
Fourthly, the petition for probation was filed by the petitioner
out of time . . . .
Fifthly, the Court notes that Section 4 of PD 968 allows the trial court to grant
probation after conviction, upon an application by the defendant within the
period of appeal, upon terms and conditions and period appropriate to each
case, but expressly rules out probation where an appeal has been
taken . . . . 5
The motion for reconsideration was likewise denied.
In the present recourse, petitioner squirms out of each ground and seeks this
Court's compassion in dispensing with the minor technicalities which may
militate against his petition as he now argues before us that he has not yet
lost his right to avail of probation notwithstanding his appeal from the MeTC
to the RTC since "[t]he reason for his appeal was precisely to enable him to
avail himself of the benefits of the Probation Law because the original
Decision of the (Metropolitan) Trial Court was such that he would not then be
entitled to probation." 6 He contends that "he appealed from the judgment of
the trial court precisely for the purpose of reducing the penalties imposed
upon him by the said court to enable him to qualify for probation." 7
The central issue therefore is whether petitioneris still qualified to avail of
probation even after appealing his conviction to the RTC which affirmed the
MeTC except with regard to the duration of the penalties imposed.
Petitioner is no longer eligible for probation.
First. Probation is a mere privilege, not a right. 8 Its benefits cannot extend to
those not expressly included. Probation is not a right of an accused, but
rather an act of grace and clemency or immunity conferred by the state which
may be granted by the court to a seemingly deserving defendant who thereby
escapes the extreme rigors of the penalty imposed by law for the offense of
which he stands convicted. 9 It is a special prerogative granted by law to a
person or group of persons not enjoyed by others or by all. Accordingly, the
grant of probation rests solely upon the discretion of the court which is to be
exercised primarily for the benefit of organized society, and only incidentally
for the benefit of the accused. 10 The Probation Law should not therefore be
permitted to divest the state or its government of any of the latter's
prerogatives, rights or remedies, unless the intention of the legislature to this
end is clearly expressed, and no person should benefit from the terms of the
law who is not clearly within them.
Neither Sec. 4 of the Probation Law, as amended, which clearly mandates
defendant has perfected the appeal from the judgment of conviction,"
nor Llamado v. Court of Appeals 11 which interprets the quoted provision,
offers any ambiguity or qualification. As such, the application of the law
should not be subjected to any to suit the case of petitioner. While the
proposition that an appeal should not bar the accused from applying for
probation if the appealis solely to reduce the penalty to within the
probationable limit may be equitable, we are not yet prepared to accept this
interpretation under existing law and jurisprudence. Accordingly, we quote
Mr. Justice Feliciano speaking for the Court en banc in Llamado v. Court of
Appeals—
. . . we note at the outset that Probation Law is not a penal
statute. We, however, understand petitioner's argument to be
really that any statutory language that appears to favor the
accused in acriminal case should be given.a "liberal
interpretation." Courts . . . have no authority to invoke "liberal
interpretation" or "the spirit of the law" where the words of
the statute themselves, and·as illuminated by the history of
that statute, leave no room for doubt or interpretation. We do
not believe that "the spirit of·the law" may legitimately be
invoked to set at naught words which have a clear and
definite meaning imparted to them by our procedural law.
The "true legislative intent" must obviously be given effect by
judges and all others who are charged with the application
and implementation of a statute. It is absolutely essential to
bear in mind, however, that the spirit of the law and the intent
that is to be given effect are derived from the words actually
used by the law-maker, and not from some external, mystical
or metajuridical source independent of and transcending the
words of the legislature.
The Court is not here to be understood as giving a "strict
interpretation" rather than a "liberal" one to Section 4 of the
Probation Law of 1976 as amended by P.D. No. 1990.
"Strict" and "liberal" are adjectives which too frequently
impede a disciplined and principled search for the meaning
which the law-making authority projected when it
promulgated the language which we must apply. That
meaning is clearly visible in the text of Section 4, as plain
and unmistakable as the nose on a man's face. The Courtis
simply·reading Section 4 as it is in fact written. There is no
need for the involved process of construction that petitioner
invites us to engage in, a process made necessary only
because petitioner rejects the conclusion or meaning which
shines through the words of the statute. The first duty of the
judge is to take and apply a statute as he finds it, not as he
would like·it to be. Otherwise, as this Court in Yangco v.
Court of First Instance warned, confusion and uncertainty will
surely follow, making, we might add, stability and continuity
in the law much more difficult to achieve:
. . . [w]here language is plain, subtle
refinements which tinge words as to give
them the color of a particular judicial theory
are not only unnecessary but decidedly
harmful. That which has caused so much
confusion in the law, which has made it so
difficult for the public to understand and
know what the law is with respect to a given
matter, is in considerable measure the
unwarranted interference by judicial
tribunals with the English language as found
in statutes and contracts, cutting the words
here and inserting them there, making them
fit personal ideas of what the legislature
ought to have done or what parties should
have agreed upon, giving them meanings
which they do not ordinarily have cutting,
trimming, fitting, changing and coloring until
lawyers themselves are unable to advise
their clients as to the meaning of a given
statute or contract until it has been
submitted to some court for its interpretation
and construction.
The point in this warning may be expected to become
sharper as our people's grasp of English is steadily
attenuated. 12
Therefore, that an appeal should not·bar the accused from applying for
probation if the appeal is taken solely to reduce the penalty is simply contrary
to the clear and express mandate of Sec, 4 of the Probation Law, as
amended, which opens with a negativeclause, "no application for probation
shall be entertained or granted if the defendant has perfected the appeal
from the judgment of conviction." In Bersabal v. Salvador, 13 we said —
By its very language, the Rule is mandatory. Under the rule
of statutory construction. negative words and phrases are to
be regarded as mandatory while those in the affirmative are
merely directory. . . . the use of the term "shall" further
emphasizes its mandatory character and means that it is
imperative, operating to impose a duty which may be
enforced.
And where the law does not distinguish the courts should not distinguish;
where the law does not make exception the court should not except.
Second. At the outset, the penalties imposed by the MeTC were already
probationable. Hence, there was no need to appeal if only to reduce the
penalties to within the probationable period. Multiple prison terms imposed
against an accused found guilty of several offenses in one decision are not,
and should not be, added up. And, the sum of the multiple prison terms
imposed against an applicant should not be determinative of his eligibility for,
nay his disqualification from, probation. The multiple prison terms are distinct
from each other, and if none of the terms exceeds the limit set out in the
Probation Law,i.e., not more than six (6) years, then he is entitled to
probation, unless he is otherwise specifically disqualified. The number of
offenses is immaterial as long as all the penalties imposed, taken separately,
are within the probationable period. For, Sec. 9, par. (a), P.D. 968, as
amended, uses the word maximum not total when it says that "[t]he benefits
of this Decree shall not be extended to those . . . . sentenced to serve
a maximum term of imprisonment of more than six years." Evidently, the law
does not intend to sum up the penalties imposed but to take each penalty
separately and distinctly with the others. Consequently, even if petitioner was
supposed to have served his prison term of one (1) year and one (1) day to
one (1) year and eight (8) months of  prision correccional sixteen (16)
times  as he was sentenced to serve the prison term for "each crime
committed on each date of each case, as alleged in the information(s)," and
in each of the four (4) informations, he was charged with.having defamed the
four (4) private complainants on four (4) different, separate days, he was
still·eligible for probation, as each prison term imposed on petitioner was
probationable.
Fixing the cut-off point at a maximum term of six (6) years imprisonment for
probation is based on the assumption that those sentenced to higher
penalties pose too great a risk to society, not just because of their
demonstrated capability for serious wrong doing but because of the gravity
and serious consequences of the offense they might further commit. 14 The
Probation Law, as amended, disqualifies only those who have been
convicted of grave felonies as defined in Art. 9 in relation to Art. 25 of The
Revised Penal Code, 15 and not necessarily those who have been convicted
of multiple offenses in a single proceeding who are deemed to be less
perverse. Hence, the basis of the disqualification is principally the gravity of
the offense committed and the concomitant degree of penalty imposed.
Those sentenced to a maximum term not exceeding six (6) years are not
generally considered callous, hard core criminals, and thus may avail of
probation.
To demonstrate the point, let ustake for instance one who is convicted in a
single decision of, say, thirteen (13) counts of grave oral defamation (for
having defamed thirteen [13] individuals in one outburst) and sentenced to
a total prison term of thirteen (13) years, and another who has been found
guilty of mutilation and sentenced to six (6) years and one (l) day of prision
mayor  minimum as minimum to twelve (l2) years and one (1) day
of reclusion temporal  minimum as maximuin. Obviously, the latter offender is
more perverse and is disqualified from availing of probation.
Petitioner thus proceeds on an erroneous assumption that under the MeTC
Decision he could not have availed of the benefits of probation. Since he
could have, although he did not, his appeal now precludes him from applying
for probation.
And, even if we go along with the premise of petitioner, however erroneous it
may be, that the penalties imposed against him should be summed up, still
he would not have qualified under the Decision rendered by the RTC since if
the "STRAIGHT penalty of EIGHT (8) MONTHS imprisonment" imposed by
the RTC is multiplied sixteen (16) times, the total imposable penalty would be
ten (10) years and eight (8) months, which is still way beyond the limit of not
more than six (6) years provided for in the Probation Law, as amended. To
illustrate: 8 months multiplied by 16 cases = 128 months; 128 months divided
by 12 months (in a year) = 10 years and 8 months, hence, following his
argument, petitioner cannot still be eligible for probation as the total of his
penalties exceeds six (6) years.
The assertion that the Decision of the RTC should be multiplied only four (4)
times since there are only four (4) Informations thereby allowing petitioner to
qualify for probation, instead of sixteen (16) times, is quite difficult to
understand. The penalties imposed by the MeTC cannot be any clearer —
"one (1) year and one (1) day to one (1) year and eight (8) months of prision
correccional, in each crime committed on each date of each case, as alleged
in the information(s). "Hence, petitioner should suffer the imposed penalties
sixteen (16) times. On the other hand, the RTC affirmed, the judgment of
conviction and merely reduced the duration of each penalty imposed by the
MeTC "in each case to a STRAIGHT penalty of EIGHT (8) MONTHS
imprisonment" on account of a mitigating circumstance for each case, count
or incident of grave oral defamation·There is no valid reason therefore why
the penalties imposed by the RTC should be multiplied only four (4) times,
and not sixteen (16) times, considering that the RTC merely affirmed the
MeTC as regards the culpability of petitioner in each of the sixteen (16) cases
and reducing only the duration of the penalties  imposed therein. Thus —
Premises considered, the judgment of conviction rendered
by the trial court is AFFIRMED with modification, as follows:
WHEREFORE, the Court hereby finds the accused Pablo C.
Francisco GUILTY beyond reasonable doubt in each of the
above entitled cases and appreciating in his favor the
mitigating circumstance which is analogous to passion or
obfuscation, the Court hereby sentences the said accused in
each case to a straight penalty of EIGHT (8) MONTHS
imprisonment, with the accessory penalties prescribed by
law; and to pay the costs. 16
Nowhere in the RTC Decision is it stated or even hinted at that the accused
was acquitted or absolved in any of the four (4) counts under each of the four
(4) Informatfons, or that any part of thejudgment of conviction was reversed,
or that any of the cases, counts or incidents was dismissed. Otherwise, we
will have to account for the twelve (12) other penalties imposed by the MeTC.
Can we? What is clear is that the judgment of conviction rendered by the was
affirmed with the sole modification on the duration of the penalties.
In fine, considering that the multiple prison terms should not be summed up
but taken separately as the totality of all the penalties is not the test,
petitioner should have immediately filed an application for probation as he
was already qualified after being convicted by the MeTC, if indeed thereafter
he felt humbled, was ready to unconditionally accept the verdict of the court
and admit his liability. Consequently, in appealing the Decision of the MeTC
to the RTC, petitioner lost his right to probation. For, plainly, the law
considers appeal and probation mutually exclusive remedies. 17
Third. Petitioner appealed to the RTC not to reduce or even correct the
penalties imposed by the MeTC, but to assert his innocence. Nothing more.
The cold fact is that petitioner appealed his conviction to the RTC not for the
sole purpose of reducing his penalties to make him eligible for probation —
since he was already qualified under the MeTC Decision — but rather to
insist on his innocence. The appeal record is wanting of any other purpose.
Thus, in his Memorandum before the RTC, he raised only three (3)
statements of error purportedly committed by the MeTC all aimed at his
acquittal: (a) in finding that the guilt of the accused has been established
because of his positive identification by the witness for the prosecution; (b) in
giving full faith and credence to the bare statements of the private
complainants despite the absence of corroborating testimonies; and, (c)in not
acquitting him in all the cases," 18 Consequently, petitioner insisted that the
trial court committed an error in relying on his positive identification
considering that private complainants could not have missed identifying him
who was their President and General Manager with whom they worked for a
good number of years. Petitioner further argued that although the alleged
defamatory words were uttered in the presence of other persons, mostly
private complainants, co-employees and clients, not one of them was
presented as a witness. Hence, according to petitioner, the trial court could
not have convicted him on the basis of the uncorroborative testimony of
private complainants. 19
Certainly, the protestations of petitioner connote profession of guiltlessness,
if not complete innocence, and do not simply put in issue the propriety of the
penalties imposed. For sure, the accused never manifested that he was
appealing only for the purpose of correcting a wrong penalty — to reduce it
to within the probationable range. Hence, upon interposing an appeal, more
so after asserting his innocence therein, petitioner should be precluded from
seeking probation. By perfecting his appeal, petitioner ipso facto relinquished
his alternative remedy of availing of the Probation Law the purpose of which
is simply to prevent speculation or opportunism on the part of an accused
who although already eligible does not at once apply for probation, but doing
so only after failing in his appeal.
The fact that petitioner did not elevate the affirmance of his conviction by the
RTC to the Court of Appeals does not necessarily mean that his appeal to
the RTC was solely to reduce his penalties. Conversely, he was afraid that
the Court of Appeals would increase his penalties, which could be worse for
him. Besides, the RTC Decision had already become final and executory
because of the negligence, according to him, of his former counsel who failed
to seek possible remedies within the period allowed by law.
Perhaps it should be mentioned that at the outset petitioner, in accordance
with Sec 3, par. (e), Rule 117 of the Rules of Court, 20 should have moved to
quash as each of the four (4) Informations filed against him charged four (4)
separate crimes of grave oral defamation, committed on four (4) separate
days. His failure to do so however may now be deemed a waiver under Sec.
8 of the same Rule 21 and he can be validly convicted, as in the instant case,
of as many crimes charged in the Information.
Fourth. The application for probation was filed way beyond the period
allowed by law. This is vital way beyond the period allowed by law and
crucial. From the records it is clear that the application for probation was filed
"only after a warrant for the arrest of petitioner had been issued . . . (and)
almost two months after (his) receipt of the Decision" 22 of the RTC. This is a
significant fact which militates against the instant petition. We quote with
affirmance the well-written, albeit assailed,  ponencia of now Presiding
Justice of the Court of Appeals Nathanael P. De Pano, Jr., on the specific
issue —
. . . the petition for probation was filed by the petitioner out of
time. The law in point, Section 4 of P.D. 968, as amended,
provides thus:
Sec. 4. Grant of Probation. — Subject to the
provisions of this Decree, the trial court may,
after it shall have convicted and sentenced a
defendant, and upon application by said
defendant within the period for perfecting an
appeal. . . . place the defendant on
probation . . . .
Going to the extreme, and assuming that an application for
probation from one who had appealed the trial court's
judgment is allowed by law, the petitioner's plea for probation
was filed out of time. In the petition is a clear statement that
the petitioner was up for execution of judgment before he
filed his application for probation. P.D. No. 968 says that the
application for probation must be filed "within the period for
perfecting an appeal;" but in this case, such period for
appeal had passed, meaning to say that the Regional Trial
Court's decision had attained finality, and no appeal
therefrom was possible under the law. Even granting that an
appeal from the appellate  court's judgment is contemplated
by P.D. 968, in addition to the judgment rendered by the trial
court, that appellate judgment had become final and was, in
fact, up for actual execution before the application for
probation was attempted by the petitioner. The petitioner did
not file his application for probation before the finality of the
said judgment; therefore, the petitioner's attempt at probation
was filed too late.
Our minds cannot simply rest easy on. the proposition that an application for
probation may yet be granted even if it was filed only after judgment has
become final, the conviction already set for execution and a warrant of arrest
issued for service of sentence.
The argument that petitioner had to await the remand of the case to the
MeTC, which necessarily must be after the decision of the RTC had become
final, for him to file the application for probation with the trial court, is to
stretch the law beyond comprehension. The law, simply, does not allow
probation after an appeal has been perfected.
Accordingly, considering that prevailing jurisprudence treats appeal and
probation as mutually exclusive remedies, and petitioner appealed from his
conviction by the MeTC although the imposed penalties were already
probationable, and in his appeal, he asserted only his innocence and did not
even raise the issue of the propriety of the penalties imposed on him, and
finally, he filed an application for probation outside the period for perfecting
an appeal granting he was otherwise eligible for probation, the instant
petition for review should be as it is hereby DENIED.
SO ORDERED.
Narvasa, C.J., Feliciano, Padilla, Bidin and Regalado, JJ., concur.
Separate Opinions
 MENDOZA, J., dissenting:
I vote to reverse the judgment of the Court of Appeals in this case.
I.
The principal basis for the affirmance of the decision of the Court of Appeals
denying probation is the fact that petitioner had appealed his sentence before
filing his application for probation. Reliance is placed on the literal application
of § 4 of the Probation Law of 1976 ,as amended, which provides as follows:
Sec. 4. Grant of Probation. — Subject to the provisions of
this Decree, the trial court may, after it shall have convicted
and sentenced a defendant, and upon application by said
defendant within the period for perfecting an appeal,
suspend the execution of the sentence and place the
defendant on probation for such period and upon such terms
and conditions as it may deem best; Provided, That no
application for probation shall be entertained or granted if the
defendant has perfected the appeal from the judgment of
conviction.
Probation may be granted whether the sentence imposes a
term of imprisonment or a fine only probation shall be filed
with the trial court application shall be deemed a waiver of
the right to appeal.
An order granting or denying probation shall not be
appealable.
Thus, under § 4 the accused is given the choice of appealing his sentence or
applying for probation. If he appeals, he cannot later apply for probation. If he
opts for probation, he can not appeal. Implicit in the choice, however, is that
the accused is not disqualified for probation under any of the cases
mentioned in § 9, to wit:
Sec. 9. Disqualified Offenders. — The benefits of this Decree
shall not be extended to those:
(a) sentenced to serve a maximum term of imprisonment of
more than six years;
(b) convicted of subversion or any crime against the national
security or the public order;
(c) who have previously been convicted by final judgment of
an offense punished by imprisonment of not less than one
month and one day and/or a fine of not less than Two
Hundred Pesos.
(d) who have been once on probation under the provisions of
this Decree; and
(e) who are already serving sentence at the time the
substantive provisions of this Decree became applicable
pursuant to Section 33 hereof.
Consequently, if under the sentence given to him an accused is not qualified
for probation, as when the penalty imposed on him by the court singly or in
their totality exceeds six (6) years but on appeal the sentence is modified so
that he becomes qualified, I believe that the accused should not be denied
the benefit of probation.
Before its amendment by P.D. No. 1990, the law allowed — even
encouraged — speculation on the outcome of appeals by permitting the
accused to apply for probation after he had appealed and failed to obtain an
acquittal. 1 It was to change this that § 4 was amended by P.D. No. 1990 by
expressly providing that "no application for probation shall be entertained or
granted if the defendant has perfected the appeal from the judgment of
conviction." For an accused, despite the fact that he is eligible for probation,
may be tempted to appeal in the hope of obtaining an acquittal if he knows
he can any way apply for probation in the event his conviction is affirmed. 2
There is, however, nothing in the amendatory Decree to suggest that in
limiting the accused to the choice of either appealing from the decision of the
trial court or applying for probation, the purpose is to deny him the right to
probation in cases like the one at bar where he becomes eligible for
probation only because on appeal his sentence is reduced. The purpose of
the amendment, it bears repeating, is simply to prevent speculation or
opportunism on the part of an accused who; although eligible for probation,
does not at once apply for probation, doing so only after failing in his appeal.
In the case at bar, it cannot be said that in appealing the decision MeTC
petitioner was principally motivated by a desire to be acquitted. While
acquittal might have been an alluring prospect for him, what is clear is that he
had a reason for appealing because under the sentence given to him he was
disqualified to apply for probation. The MeTC had originally sentenced him to
1 year and 1 day to 1 year and 8 months of  prision correccional  for "each
crime committed on each date of each case, as alleged in the information[s]."
This meant, as the majority opinion points out, that petitioner had to suffer the
prison term of 1 year and 1 day to 1 year and 8 months sixteen times, since
he was found guilty of  four crimes of grave oral defamation in each of four
cases. The totality of the penalties imposed on petitioner (26 years and 8
months) thus exceeded the limit of six (6) years of imprisonment allowed by §
9(a) and disqualified him for probation. It was only after this penalty was
reduced on appeal to a straight penalty of eight months imprisonment in each
case or to a total term of 2 years and 8 months in the four cases that
petitioner became eligible for probation. Then he did not appeal further
although he could have done so.
The Court of Appeals, while acknowledging that "there may be some space
not covered by the present law on probation . . . where in its original state,
the petitioner was disqualified from applying for probation under Sec. 9 of the
Decree, becoming eligible for probation only under the terms of the judgment
on appeal," nevertheless felt bound by the letter of § 4: "No application for
probation shall be entertained or granted if the defendant has perfected the
appeal from the judgment of conviction." The majority opinion, affirming the
ruling, states that to allow probation in this case would be to go against the
"clear and express mandate of sec. 4 of the Probation Law, as amended." (p.
9)
To regard probation, however, as a mere privilege, to be given to the
accused only where it clearly appears he comes within its letter is to
disregard the teaching in many cases that the Probation Law should be
applied in favor of the accused not because it is a criminal law — it is not —
but to achieve its beneficent purpose. (Santos To v. Paño, 120 SCRA 8, 14
(1983)). The niggardly application of the law would defeat its purpose to "help
the probationer develop into a law-abiding and self-respecting individual"
(Baclayon v. Mutia, 129 SCRA 148, 149 (1984), per Teehankee, J.) or "afford
[him] a chance to reform and rehabilitate himself without the stigma of a
prison record, to save government funds that may otherwise be spent for his
food and maintenance while incarcerated, and to decongest the jails of the
country." (Del Rosario v. Rosero, 126 SCRA 228, 232 (1983), per
Makasiar, J.)
The approach followed by the Court in Atienza v. Court of Appeals, 140
SCRA 391, 395 (1985) instead commends itself to me:
Regarding this, it suffices to state that the Probation Law
was never intended to limit the right of an accused person to
present all relevant evidence he can avail of in order to
secure a verdict of acquittal or a reduction of the penalty.
Neither does the law require a plea of guilty on the part of
the accused to enable him to avail of the benefits of
probation. A contrary view would certainly negate the
constitutional right of an accused to be presumed innocent
until the contrary is proved.
As already stated, petitioner did not appeal primarily to seek acquittal. Proof
of this is that after the penalty imposed on him by the MeTC had been
reduced by the RTC so that he thereby became qualified for probation, he did
not appeal further. The majority says that this was because he was afraid
that if he did the penalty could be increased. That possibility, however, was
also there when he appealed from the MeTC to the RTC. For by appealing
the sentence of the MeTC, petitioner took as much risk that the penalty would
be raised as the chance that he would he acquitted.
It is true that in appealing the sentence of the MeTC petitioner professed his
innocence and not simply questioned the propriety of his sentence, but no
more so does an accused who, upon being arraigned, pleads, "Not Guilty."
And yet the latter cannot be denied probation if he is otherwise eligible for
probation.
It is argued that there is a difference because an accused who pleads "not
guilty'' in the beginning, later acknowledges his guilt and shows contrition
after he is found guilty. So does an accused who appeals a sentence
because under it he is not qualified for probation, but after the penalty is
reduced, instead of appealing further, accepts the new sentence and applies
for probation.
This case is thus distinguishable from Llamado v. Court of Appeals, 174
SCRA 566 (1989), in which it was held that because the petitioner had
appealed his sentence, he could not subsequently apply for probation. For,
unlike petitioner in the case at bar, the accused in that case could have
applied for probation as his original sentence of one year of  prision
correccional did not disqualify him for probation. That case fell squarely
within the ambit of the prohibition in § 4 that one who applies for probation
must not "have perfected an appeal from the judgment of conviction."
II.
It is contended that petitioner did not have to appeal because under the
original sentence meted out to him he was not disqualified for probation. The
issue here is whether the multiple prison terms imposed on petitioner are to
be considered singly or in their totality for the purpose of § 9(a) which
disqualifies from probation those "sentenced to serve a maximum term of
imprisonment of more than six years."
I submit that they should be taken in their totality. As the sentence originally
imposed on petitioner was for "one (1) year and one (1) day to one (1) year
and eight (8) months of  prision correccional  in each crime committed on
each date of each case" and as there are four offenses of grave oral
defamation against petitioner in each of the four cases, the total prison term
which he would have to serve was 26 years and 8 months. This is clearly
beyond the probationable maximum allowed by law.
It is said, however, that even if the totality of the prison terms is the test, the
modified sentence imposed by the RTC would not qualify the petitioner for
probation because he has to suffer imprisonment of eight months sixteen
times. That is not so. The RTC only "sentence[d] the said accused in each
case to STRAIGHT penalty of EIGHT (8) MONTHS imprisonment." This
means eight (8) months times four (4), since there are four cases, or 32
months or 2 years and 8 months.
The policy of the law indeed appears to be to treat as only one multiple
sentences imposed in cases which are jointly tried and decided. For
example, § 9(c) disqualifies from probation persons "who have previously
been convicted by final judgment of an offense punished by imprisonment of
not less than one month and one day and/or a fine of not less than Two
Hundred Pesos. It was held in Rura v. Lopena, 137 SCRA 121 (1985) that
the accused, who had been found guilty of estafa in five criminal cases, was
qualified for probation because although the crimes had been committed on
different dates he was found guilty of each crime on the same day. As this
Court noted, "Rura was sentenced to a total prison term  of seventeen (l7)
months and twenty-five (25) days. In each criminal case the sentence was
three (3) months and fifteen (15) days.
That the duration of a convict's sentence is determined by considering the
totality of several penalties for different offenses committed is also implicit in
the provisions of the Revised Penal Code on the accumulation of penalties.
(See e.g., arts. 48 and 70)
It is said that the basis of disqualification under § 9 is the gravity of the
offense committed and the penalty imposed. I agree. That is why I contend
that a person who is convicted of multiple grave oral defamation for which the
total prison term is, say, 6 years and 8 months, is guilty of a graver offense
than another who is guilty of only offense of grave oral defamation and
sentenced to a single penalty of 1 year and 8 months. The relevant
comparison is between an accused convicted of one offense of grave oral
defamation and another one convicted of the same offense, say four or more
times. The relevant comparison is not, as the majority says, between an
accused found guilty of grave oral defamation four or more times and another
one found guilty of mutilation and sentenced to an indeterminate term of 6
years and 1 day of prision mayor  to 12 years and 1 day of reclusion
temporal.
III.
Finally, it is said that there is a more fundamental reason for denying
probation in this case and that is that petitioner applied for probation only
after his case had been remanded to the MeTC for the execution of its
decision as modified. But that is because § 4 provides that "an application for
probation shall be filed with the trial court." In the circumstances of this case,
petitioner had to await the remand of the case to the MeTC, which
necessarily must be after the decision of the RTC had become final.
The decision of the Court of Appeals should be REVERSED and respondent
judge of the Metropolitan Trial Court of Makati, Metro Manila should be
ORDERED to GRANT petitioner's application for probation.
VITUG, J., concurring:
While I subscribe to the observation made by Mr. Justice Vicente V.
Mendoza in his dissenting opinion that an accused, who originally is not
qualified for probation because the penalty imposed on him by a court a
quo exceeds six (6) years, should not be denied that benefit of probation if on
appeal the sentence is ultimately reduced to within the prescribed limit, I am
unable, however, to second the other proposition that multiple prison terms
imposed by a court should be taken in their totality for purposes of Section 9
(a), P.D. No. 968. In this respect, I concur with Mr. Justice Josue Bellosillo in
his  ponencia that in determining the eligibility or disqualification of an
applicant for probation charged with, and sentenced to serve multiple prison
terms for, several offenses, "the number of offenses is immaterial as long as
all the penalties imposed, taken separately, are within the probationable
period." The use of the word maximum  instead of the word total  in Section 9,
paragraph (a) of P.D. 968, as amended, should be enough to reveal that
such has been the legislative intent.
Thus, I still must vote for the denial of the petition.
Separate Opinions
MENDOZA, J., dissenting:
I vote to reverse the judgment of the Court of Appeals in this case.
I.
The principal basis for the affirmance of the decision of the Court of Appeals
denying probation is the fact that petitioner had appealed his sentence before
filing his application for probation. Reliance is placed on the literal application
of § 4 of the Probation Law of 1976 ,as amended, which provides as follows:
Sec. 4. Grant of Probation. — Subject to the provisions of
this Decree, the trial court may, after it shall have convicted
and sentenced a defendant, and upon application by said
defendant within the period for perfecting an appeal,
suspend the execution of the sentence and place the
defendant on probation for such period and upon such terms
and conditions as it may deem best; Provided, That no
application for probation shall be entertained or granted if the
defendant has perfected the appeal from the judgment of
conviction.
Probation may be granted whether the sentence imposes a
term of imprisonment or a fine only probation shall be filed
with the trial court application shall be deemed a waiver of
the right to appeal.
An order granting or denying probation shall not be
appealable.
Thus, under § 4 the accused is given the choice of appealing his sentence or
applying for probation. If he appeals, he cannot later apply for probation. If he
opts for probation, he can not appeal. Implicit in the choice, however, is that
the accused is not disqualified for probation under any of the cases
mentioned in § 9, to wit:
Sec. 9. Disqualified Offenders. — The benefits of this Decree
shall not be extended to those:
(a) sentenced to serve a maximum term of imprisonment of
more than six years;
(b) convicted of subversion or any crime against the national
security or the public order;
(c) who have previously been convicted by final judgment of
an offense punished by imprisonment of not less than one
month and one day and/or a fine of not less than Two
Hundred Pesos.
(d) who have been once on probation under the provisions of
this Decree; and
(e) who are already serving sentence at the time the
substantive provisions of this Decree became applicable
pursuant to Section 33 hereof.
Consequently, if under the sentence given to him an accused is not qualified
for probation, as when the penalty imposed on him by the court singly or in
their totality exceeds six (6) years but on appeal the sentence is modified so
that he becomes qualified, I believe that the accused should not be denied
the benefit of probation.
Before its amendment by P.D. No. 1990, the law allowed — even
encouraged — speculation on the outcome of appeals by permitting the
accused to apply for probation after he had appealed and failed to obtain an
acquittal. 1 It was to change this that § 4 was amended by P.D. No. 1990 by
expressly providing that "no application for probation shall be entertained or
granted if the defendant has perfected the appeal from the judgment of
conviction." For an accused, despite the fact that he is eligible for probation,
may be tempted to appeal in the hope of obtaining an acquittal if he knows
he can any way apply for probation in the event his conviction is affirmed. 2
There is, however, nothing in the amendatory Decree to suggest that in
limiting the accused to the choice of either appealing from the decision of the
trial court or applying for probation, the purpose is to deny him the right to
probation in cases like the one at bar where he becomes eligible for
probation only because on appeal his sentence is reduced. The purpose of
the amendment, it bears repeating, is simply to prevent speculation or
opportunism on the part of an accused who; although eligible for probation,
does not at once apply for probation, doing so only after failing in his appeal.
In the case at bar, it cannot be said that in appealing the decision MeTC
petitioner was principally motivated by a desire to be acquitted. While
acquittal might have been an alluring prospect for him, what is clear is that he
had a reason for appealing because under the sentence given to him he was
disqualified to apply for probation. The MeTC had originally sentenced him to
1 year and 1 day to 1 year and 8 months of  prision correccional  for "each
crime committed on each date of each case, as alleged in the information[s]."
This meant, as the majority opinion points out, that petitioner had to suffer the
prison term of 1 year and 1 day to 1 year and 8 months sixteen times, since
he was found guilty of  four crimes of grave oral defamation in each of four
cases. The totality of the penalties imposed on petitioner (26 years and 8
months) thus exceeded the limit of six (6) years of imprisonment allowed by §
9(a) and disqualified him for probation. It was only after this penalty was
reduced on appeal to a straight penalty of eight months imprisonment in each
case or to a total term of 2 years and 8 months in the four cases that
petitioner became eligible for probation. Then he did not appeal further
although he could have done so.
The Court of Appeals, while acknowledging that "there may be some space
not covered by the present law on probation . . . where in its original state,
the petitioner was disqualified from applying for probation under Sec. 9 of the
Decree, becoming eligible for probation only under the terms of the judgment
on appeal," nevertheless felt bound by the letter of § 4: "No application for
probation shall be entertained or granted if the defendant has perfected the
appeal from the judgment of conviction." The majority opinion, affirming the
ruling, states that to allow probation in this case would be to go against the
"clear and express mandate of sec. 4 of the Probation Law, as amended." (p.
9)
To regard probation, however, as a mere privilege, to be given to the
accused only where it clearly appears he comes within its letter is to
disregard the teaching in many cases that the Probation Law should be
applied in favor of the accused not because it is a criminal law — it is not —
but to achieve its beneficent purpose. (Santos To v. Paño, 120 SCRA 8, 14
(1983)). The niggardly application of the law would defeat its purpose to "help
the probationer develop into a law-abiding and self-respecting individual"
(Baclayon v. Mutia, 129 SCRA 148, 149 (1984), per Teehankee, J.) or "afford
[him] a chance to reform and rehabilitate himself without the stigma of a
prison record, to save government funds that may otherwise be spent for his
food and maintenance while incarcerated, and to decongest the jails of the
country." (Del Rosario v. Rosero, 126 SCRA 228, 232 (1983), per
Makasiar, J.)
The approach followed by the Court in Atienza v. Court of Appeals, 140
SCRA 391, 395 (1985) instead commends itself to me:
Regarding this, it suffices to state that the Probation Law
was never intended to limit the right of an accused person to
present all relevant evidence he can avail of in order to
secure a verdict of acquittal or a reduction of the penalty.
Neither does the law require a plea of guilty on the part of
the accused to enable him to avail of the benefits of
probation. A contrary view would certainly negate the
constitutional right of an accused to be presumed innocent
until the contrary is proved.
As already stated, petitioner did not appeal primarily to seek acquittal. Proof
of this is that after the penalty imposed on him by the MeTC had been
reduced by the RTC so that he thereby became qualified for probation, he did
not appeal further. The majority says that this was because he was afraid
that if he did the penalty could be increased. That possibility, however, was
also there when he appealed from the MeTC to the RTC. For by appealing
the sentence of the MeTC, petitioner took as much risk that the penalty would
be raised as the chance that he would he acquitted.
It is true that in appealing the sentence of the MeTC petitioner professed his
innocence and not simply questioned the propriety of his sentence, but no
more so does an accused who, upon being arraigned, pleads, "Not Guilty."
And yet the latter cannot be denied probation if he is otherwise eligible for
probation.
It is argued that there is a difference because an accused who pleads "not
guilty'' in the beginning, later acknowledges his guilt and shows contrition
after he is found guilty. So does an accused who appeals a sentence
because under it he is not qualified for probation, but after the penalty is
reduced, instead of appealing further, accepts the new sentence and applies
for probation.
This case is thus distinguishable from Llamado v. Court of Appeals, 174
SCRA 566 (1989), in which it was held that because the petitioner had
appealed his sentence, he could not subsequently apply for probation. For,
unlike petitioner in the case at bar, the accused in that case could have
applied for probation as his original sentence of one year of  prision
correccional did not disqualify him for probation. That case fell squarely
within the ambit of the prohibition in § 4 that one who applies for probation
must not "have perfected an appeal from the judgment of conviction."
II.
It is contended that petitioner did not have to appeal because under the
original sentence meted out to him he was not disqualified for probation. The
issue here is whether the multiple prison terms imposed on petitioner are to
be considered singly or in their totality for the purpose of § 9(a) which
disqualifies from probation those "sentenced to serve a maximum term of
imprisonment of more than six years."
I submit that they should be taken in their totality. As the sentence originally
imposed on petitioner was for "one (1) year and one (1) day to one (1) year
and eight (8) months of  prision correccional  in each crime committed on
each date of each case" and as there are four offenses of grave oral
defamation against petitioner in each of the four cases, the total prison term
which he would have to serve was 26 years and 8 months. This is clearly
beyond the probationable maximum allowed by law.
It is said, however, that even if the totality of the prison terms is the test, the
modified sentence imposed by the RTC would not qualify the petitioner for
probation because he has to suffer imprisonment of eight months sixteen
times. That is not so. The RTC only "sentence[d] the said accused in each
case to STRAIGHT penalty of EIGHT (8) MONTHS imprisonment." This
means eight (8) months times four (4), since there are four cases, or 32
months or 2 years and 8 months.
The policy of the law indeed appears to be to treat as only one multiple
sentences imposed in cases which are jointly tried and decided. For
example, § 9(c) disqualifies from probation persons "who have previously
been convicted by final judgment of an offense punished by imprisonment of
not less than one month and one day and/or a fine of not less than Two
Hundred Pesos. It was held in Rura v. Lopena, 137 SCRA 121 (1985) that
the accused, who had been found guilty of estafa in five criminal cases, was
qualified for probation because although the crimes had been committed on
different dates he was found guilty of each crime on the same day. As this
Court noted, "Rura was sentenced to a total prison term  of seventeen (l7)
months and twenty-five (25) days. In each criminal case the sentence was
three (3) months and fifteen (15) days.
That the duration of a convict's sentence is determined by considering the
totality of several penalties for different offenses committed is also implicit in
the provisions of the Revised Penal Code on the accumulation of penalties.
(See e.g., arts. 48 and 70)
It is said that the basis of disqualification under § 9 is the gravity of the
offense committed and the penalty imposed. I agree. That is why I contend
that a person who is convicted of multiple grave oral defamation for which the
total prison term is, say, 6 years and 8 months, is guilty of a graver offense
than another who is guilty of only offense of grave oral defamation and
sentenced to a single penalty of 1 year and 8 months. The relevant
comparison is between an accused convicted of one offense of grave oral
defamation and another one convicted of the same offense, say four or more
times. The relevant comparison is not, as the majority says, between an
accused found guilty of grave oral defamation four or more times and another
one found guilty of mutilation and sentenced to an indeterminate term of 6
years and 1 day of prision mayor  to 12 years and 1 day of reclusion
temporal.
III.
Finally, it is said that there is a more fundamental reason for denying
probation in this case and that is that petitioner applied for probation only
after his case had been remanded to the MeTC for the execution of its
decision as modified. But that is because § 4 provides that "an application for
probation shall be filed with the trial court." In the circumstances of this case,
petitioner had to await the remand of the case to the MeTC, which
necessarily must be after the decision of the RTC had become final.
The decision of the Court of Appeals should be REVERSED and respondent
judge of the Metropolitan Trial Court of Makati, Metro Manila should be
ORDERED to GRANT petitioner's application for probation.
VITUG, J., concurring:
While I subscribe to the observation made by Mr. Justice Vicente V.
Mendoza in his dissenting opinion that an accused, who originally is not
qualified for probation because the penalty imposed on him by a court a
quo exceeds six (6) years, should not be denied that benefit of probation if on
appeal the sentence is ultimately reduced to within the prescribed limit, I am
unable, however, to second the other proposition that multiple prison terms
imposed by a court should be taken in their totality for purposes of Section 9
(a), P.D. No. 968. In this respect, I concur with Mr. Justice Josue Bellosillo in
his  ponencia that in determining the eligibility or disqualification of an
applicant for probation charged with, and sentenced to serve multiple prison
terms for, several offenses, "the number of offenses is immaterial as long as
all the penalties imposed, taken separately, are within the probationable
period." The use of the word maximum  instead of the word total  in Section 9,
paragraph (a) of P.D. 968, as amended, should be enough to reveal that
such has been the legislative intent.

Thus, I still must vote for the denial of the petition.