Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No.

137268 March 26, 2001

THE PEOPLE O THE PHILIPPINES, plaintiff-appellee, vs. EUTI!UI" C"RMEN # Mo$h%r P%r&%$'a(a, CELEDONI" ")IE # I*a+%( a+,%, DELI" SI)ONG" # D%-,./ S,+o./a, "LE0"NDER SI)ONG" # No.o1 S,+o./a, a.- RE2N"RIO NU3E4 # R%1 N'5%6, accused-appellants. MENDO4", J.7 This is an appeal from the decision1 of the Regional Trial Court, Branch 14, Cebu Cit , finding accusedappellants !uti"uia Carmen # Mother Perpetuala, Celedonia $abie # %sabel $abie, &elia 'ibonga # &eding 'ibonga, (le)ander 'ibonga # *ono 'ibonga, and Re nario *u+e, # Re *u+e, guilt of murder and sentencing them to suffer the penalt of reclusion perpetua and to pa the heirs of the victim the amount of P-.,...... as indemnit as /ell as the costs. The information0 against accused-appellants alleged1 That on or about the 02th da of 3anuar , 1442 at about 01.. o5cloc6 p.m., in the Cit of Cebu, Philippines, and /ithin the 7urisdiction of this 8onorable Court, the said accused, conniving and confederating together and mutuall helping one another, /ith deliberate intent, /ith intent to 6ill, /ith treacher and evident premeditation, did then and there inflict fatal ph sical in7uries on one Rand 9unta ao /hich in7uries caused the death of the said Rand 9unta ao. (ccused-appellants pleaded not guilt to the charge, /hereupon the /ere tried. The prosecution presented evidence sho/ing the follo/ing1 (t around 0 o5cloc6 in the afternoon of 3anuar 02, 1442, 8one $e (bella, 1., and her friend $rances Claire Rivera, 2, /ere pla ing ta6 an in front of the house of one Bebing 9astimoso in :uiot, Pardo, Cebu Cit , /hen suddenl the heard a child shout, ;Tabang ma<; =;8elp mother<;>. The cr came from the direction of the house of accused-appellant Carmen, /ho is also 6no/n in their neighborhood as Mother Perpetuala. The t/o children ran to/ards Mother Perpetuala5s house.? @hat 8one $e sa/ on /hich she testified in court, is summari,ed in the decision of the trial court, to /it1 @hile thereA,B she sa/ a bo , /hose name . . . she AlaterB came to 6no/ as one Rand 9unta ao, . . . being immersed head first in a drum of /ater. (ccused (le)ander 'ibonga /as holding the /aist of the bod /hile accused Re nario *u+e, held the hands of the bo at the bac6. (ccused !uti"uia Carmen, &elia 'ibonga, and Celedonia $abie /ere pushing do/n the bo 5s head into the /ater. 'he heard the bo shouting ;Ma, help; for t/o times. 9ater, she sa/ accused Re nario or Re *u+e, tie the bo on the bench /ith a green rope as big as her little finger. . . . (fter that !uti"uia Carmen poured A/ater fromB a plastic container =galon> . . . into the mouth of the bo . !ach time the bo struggled to raise his head, accused (le)ander 'ibonga banged the bo 5s head against the bench AtoB /hich the bo /as tied do/n. 'he even heard the banging sound ever time the bo 5s head hit the bench. $or about five times she heard it. (ccording to this /itness after forcing the bo to drin6 /ater, !uti"uia Carmen and accused Celedonia $abie alias %sabel $abie too6 turns in pounding the bo 5s chest /ith their clenched fists. (ll the time Re *u+e, held do/n the bo 5s feet to the bench. 'he also /itnessed . . . Celedonia $abie dropped her /eight, buttoc6s first, on the bod of the bo . 9ater on, !uti"uia Carmen ordered &elia or &eding 'ibonga to get a 6nife from the 6itchen. !uti"uia Carmen then slo/l plunged the stainless 6nife on the left side of the bo 5s bod and /ith the use of a plastic gallon container, the top portion of /hich /as cut out, !uti"uia Carmen AcaughtB the blood dripping from the left side of the bo 5s bod . 8one $e heard the moaning coming from the tortured bo . Much later she sa/ *ono or (le)ander 'ibonga, Re nario *u+e,, &elia 'ibonga, Celedonia $abie, and !uti"uia Carmen carr the bo into the house.4

!ddie 9unta ao, father of the victim, testified that he has five children, the eldest of /hom, Rand , /as 1? ears old at the time of the incident. Cn *ovember 0., 144D, Rand had a ;nervous brea6do/n; /hich !ddie thought /as due to Rand having to s6ip meals /henever he too6 the bo /ith him to the farm. (ccording to !ddie, his son started tal6ing to himself and laughing. Cn 3anuar 0D, 1442, upon the suggestion of accused-appellant Re nario *u+e,, !ddie and his /ife Perlita and their three children =Rand , 3esrel, 2, and 9es l, 1> /ent /ith accused-appellant *u+e, to Cebu. The arrived in Cebu at around 1 o5cloc6 in the afternoon of the same da and spent the night in *u+e,5s house in Tang6e, Talisa . The follo/ing da , the /ent to the house of accused-appellant Carmen in :uiot, Pardo,- /here all of the accused-appellants /ere present. !ddie tal6ed to accused-appellant Carmen regarding his son5s condition. 8e /as told that the bo /as possessed b a ;bad spirit,; /hich accused-appellant Carmen said she could e)orcise. 'he /arned, ho/ever, that as the spirit might transfer to !ddie, it /as best to conduct the healing pra er /ithout him. (ccused-appellants then led Rand out of the house, /hile !ddie and his /ife and t/o daughters /ere loc6ed inside a room in the house.D (fter a /hile, !ddie heard his son t/ice shout ;Ma, tabang<; =;Mother, help<;>. !ddie tried to go out of the room to find out /hat /as happening to his son, but the door /as loc6ed. (fter about an hour, the 9unta aos /ere transferred to the pra er room /hich /as located near the main door of the house.2 ( fe/ hours later, at around - o5cloc6 in the afternoon, accused-appellants carried Rand into the pra er room and placed him on the altar. !ddie /as shoc6ed b /hat he sa/. Rand 5s face /as bluish and contused, /hile his tongue /as stic6ing out of his mouth. %t /as clear to !ddie that his son /as alread dead. 8e /anted to see his son5s bod , but he /as stopped from doing so b accused-appellant !uti"uia Carmen /ho told him not to go near his son because the latter /ould be resurrected at 2 o5cloc6 that evening.E (fter 2 o5cloc6 that evening, accused-appellant Carmen as6ed a member of her group to call the funeral parlor and bring a coffin as the child /as alread dead. %t /as arranged that the bod /ould be transferred to the house of accused-appellant *u+e,. Thus, that night, the 9unta ao famil , accompanied b accusedappellant *u+e,, too6 Rand 5s bod to *une,5s house in Tang6e, Talisa . The follo/ing da , 3anuar 0E, 1442, accused-appellant *u+e, told !ddie to go /ith him to the Talisa Municipal 8ealth Cffice to report Rand 5s death and told him to 6eep "uiet or the might not be able to get the necessar papers for his son5s burial. *u+e, too6 care of securing the death certificate /hich !ddie signed.4 (t around ? o5cloc6 in the afternoon of 3anuar 0E, 1442, accused-appellant Carmen /ent to Tang6e, Talisa to ensure that the bod /as buried. !ddie and his /ife told her that the preferred to bring their son5s bod /ith them to 'i6atuna, %sabela, *egros Cccidental but the /ere told b accused-appellant Carmen that this /as not possible as she and the other accused-appellants might be arrested. That same afternoon, Rand 9unta ao /as buried in Tang6e, Talisa .1. (fter !ddie and his famil had returned home to *egros Cccidental, !ddie sought assistance from the Bombo Rad o station in Bacolod Cit /hich referred him to the regional office of the *ational Bureau of %nvestigation =*B%> in the cit . Cn $ebruar ?, 1442, !ddie filed a complaint for murder against accusedappellant *u+e, and the other members of his group.11 8e also as6ed for the e)humation and autops of the remains of his son.10 (s the incident too6 place in Cebu, his complaint /as referred to the *B% office in Cebu Cit . Modesto Ca7ita, head of *B%, Region F%% =Cebu>, too6 over the investigation of the case. 8e testified that he met /ith !ddie 9unta ao and supervised the e)humation and autops of the bod of Rand 9unta ao. 1? Ca7ita testified that he also met /ith accused-appellant Carmen and after admitting that she and the other accused-appellants conducted a ;pra -over healing; session on the victim on 3anuar 02, 1442, accusedappellant Carmen refused to give an further statement. Ca7ita noticed a /ooden bench in the 6itchen of Carmen5s house, /hich, /ith Carmen5s permission, he too6 /ith him to the *B% office for e)amination. Ca7ita admitted he did not 6no/ the results of the e)amination.14 &r. Ronaldo B. Mende,, the *B% medico-legal officer /ho conducted the autops on Rand 9unta ao, testified that he, the victim5s father, and some *B% agents, e)humed the victim5s bod on $ebruar 0., 1442 at Tang6e Catholic Cemeter in the Tang6e, Talisa , Cebu. 8e conducted the autops on the same da and later submitted the follo/ing report =!)hs. ! and $>11-

$%*&%*G' Bod in advanced stage of decomposition /earing a /hite shirt and shorts /rapped in printed blan6et =/hite and orange> placed in /hite /ooden coffin and buried underground about 4 feet deep. Contusion, ?.. ) 4.. cms. chest, anterior, left side. $racture, ?rd rib, left, mid-clavicular line. $racture, linear, occipital bone right side e)tending to the bases of middle cranial fossae right to left do/n to the occipital bone, left side. $racture, diastatic, lamboidal suture, bilateral. %nternal organs in advanced stage of decomposition. Cranial vault almost empt . C(H'! C$ &!(T81 AThe victimB could have died due to the internal effects of a traumatic head in7ur andIor traumatic chest in7ur . &r. Mende, testified that the contusion on the victim5s chest /as caused b contact /ith a hard blunt instrument. 8e added that the fracture on the rib /as complete /hile that found on the base of the s6ull follo/ed a serrated or uneven pattern. 8e said that the latter in7ur could have been caused b the forcible contact of that part of the bod /ith a blunt ob7ect such as a /ooden bench.1D Cn cross-e)amination, &r. Mende, admitted that he did not find an stab /ound on the victim5s bod but e)plained that this could be due to the fact that at the time the bod /as e)humed and e)amined, it /as alread in an advanced state of decomposition rendering such /ound, if present, unrecogni,able.12 (ccused-appellants did not testif . %nstead, the defense presented1 =a> Ritsel Blase, an alleged e e/itness to the incidentJ =b> Maria 9ilina 3imene,, Fisitacion 'eniega, and 3osefina (bing, alleged former ;patients; of accused-appellant CarmenJ =c> &r. Milagros Carloto, the municipal health officer of Talisa , Cebu andJ =d> (tt . 'alvador 'olima of the Cebu Cit Prosecutor5s Cffice. Ritsel Blase, 01, testified that since 14E2 she had been /ith the group of accused-appellant Carmen, /hom she calls Mother Perpetuala. 'he recounted that at around 0 o5cloc6 in the afternoon of 3anuar 02, 1442, /hile she /as in the house of accused-appellant Carmen, she sa/ !ddie 9unta ao tal6ing /ith the latter regarding the treatment of his son. The bo /as later led to the 6itchen and given a bath prior to ;treatment.; (fter /ater /as poured on the bo , he became unrul prompting accused-appellant Carmen to decide not to continue /ith the ;treatment,; but the bo 5s parents allegedl prevailed upon her to continue. (s the bo continued to resist, accused-appellant Carmen told accused-appellants &elia 'ibonga and Celedonia $abie to help her =Carmen> la the bo on a bench. (s the child resisted all the more, !ddie 9unta ao allegedl told the group to tie the bo to the bench. (ccused-appellant &elia 'ibonga got hold of a n lon rope /hich /as used to tie the child to the bench. Then Carmen, &elia 'ibonga, and $abie pra ed over the child, but as the latter started hitting his head against the bench, Carmen as6ed *u+e, to place his hands under the bo 5s head to cushion the impact of the blo/ ever time the child brought do/n his head. To stop the bo from struggling, accused-appellant $abie held the bo 5s legs, /hile accused-appellant *u+e, held his shoulders. (fter pra ing over the bo , the latter /as released and carried inside the house. (ccusedappellant (le)ander 'ibonga, /ho had arrived, helped carr the bo inside. (fter this, Blase said she no longer 6ne/ /hat happened inside the house as she sta ed outside to finish the laundr .1E Blase testified that the parents of Rand 9unta ao /itnessed the ;pra -over; of their son from beginning to end. 'he denied that accused-appellants $abie and &elia 'ibonga struc6 the victim on his chest /ith their fists. (ccording to her, neither did accused-appellant Carmen stab the bo . 'he claimed that Rand /as still alive /hen he /as ta6en inside the house.14

The defense presented Maria 9ilia 3imene,, 0., Fisitacion 'eniega, ?4, and 3osefina (bing, ?4, /ho testified that accused-appellant Carmen had cured them of their illnesses b merel pra ing over them and /ithout appl ing an form of ph sical violence on them.0. Milagros Carloto, Municipal 8ealth Cfficer of Talisa , Cebu, /as also presented b the defense to testif on the death certificate she issued in /hich she indicated that Rand 9unta ao died of pneumonia. (ccording to her, !ddie 9unta ao came to her office on 3anuar 0E, 1442 to as6 for the issuance of a death certificate for his son Rand 9unta ao /ho had allegedl suffered from cough and fever.01 Cn cross-e)amination, &r. Carloto admitted that she never sa/ the bod of the victim as she merel relied on /hat she had been told b !ddie 9unta ao. 'he said that it /as a mid/ife, Mrs. Revina 9aviosa, /ho e)amined the victim5s bod .00 The last /itness for the defense, (ssistant Cit Prosecutor 'alvador 'olima, /as presented to identif the resolution he had prepared =!)h. E>0? on the re-investigation of the case in /hich he recommended the dismissal of the charge against accused-appellants. 8is testimon /as dispensed /ith, ho/ever, as the prosecution stipulated on the matters 'olima /as going to testif /ith the "ualification that 'olima5s recommendation /as disapproved b Cit Prosecutor Primo Miro.04 The prosecution recalled !ddie 9unta ao to the stand to rebut the testimonies of Ritsel Blase and &r. Milagros Carloto. !ddie denied having /itnessed /hat accused-appellants did to his son. 8e reiterated his earlier claim that after accused-appellants had ta6en Rand , he and his /ife and t/o daughters /ere loc6ed inside a room. 8e disputed Blase5s statement that his son /as still alive /hen he /as brought into the pra er room. 8e said he sa/ that his son5s head slumped /hile being carried b accused-appellants.0(s for the testimon of &r. Carloto, !ddie admitted having tal6ed /ith her /hen he and accused-appellant *u+e, /ent to her office on 3anuar 0E, 1442. 8o/ever, he denied having told her that his son /as suffering from fever and cough as he told her that Rand had a nervous brea6do/n. 8e too6 e)ception to &r. Carloto5s statement that he /as alone /hen he /ent to her office because it /as *u+e, /ho insisted that he =!ddie> accompan him in order to secure the death certificate.0D Cn *ovember 1E, 144E, the trial court rendered a decision, the dispositive portion of /hich states1 @8!R!$CR!, in vie/ of the foregoing facts and circumstances, AtheB accused are all found guilt be ond reasonable doubt of the crime of Murder and are hereb AsentencedB to suffer the penalt of R!C9H'%C* P!RP!TH(, /ith the accessor penalties of the la/J to indemnif 7ointl and severall the heirs of the deceased Rand 9unta ao in the sum of P-.,......J and to pa the costs. The accused, are, ho/ever, credited in full during the /hole period of their detention provided the /ill signif in /riting that the /ill abide b all the rules and regulations of the penitentiar .02 %n finding accused-appellants guilt of murder, the trial court stated1 Killing a person /ith treacher is murder even if there is no intent to 6ill. @hen death occurs, it is presumed to be the natural conse"uence of ph sical in7uries inflicted. 'ince the defendant did commit the crime /ith treacher , he is guilt of murder, because of the voluntar presence of the "ualif ing circumstance of treacher =P v. Cagoco, -E Phil. -?.>. (ll the accused in the case at bar had contributed different acts in mercilessl inflicting in7uries to the victim. $or having immersed the head of the victim into the barrel of /ater, all the herein accused should be held responsible for all the conse"uences even if the result be different from that /hich /as intended =(rt. 4, par. 1, RPC>. %t is pointed out that in P. v. Cagoco, -E Phil. -04, even if there /as no intent to 6illA,B in inflicting ph sical in7uries /ith treacher , the accused in that case /as convicted of murder. %n murder "ualified b treacher , it is re"uired onl that there is treacher in the attac6, and this is true even if the offender has no intent to 6ill the person assaulted. Hnder the guise of a ritual or treatment, the accused should not have intentionall immersed upside do/n the head of Rand 9unta ao into a barrel of /aterJ banged his head against the benchJ pounded his chest /ith fists, or plunged a 6itchen 6nife to his side so that blood /ould come out for these acts /ould surel cause death to the victim. . . .

Cne /ho commits an intentional felon is responsible for all the conse"uences /hich ma naturall and logicall result therefrom, /hether foreseen or intended or not. Crdinaril , /hen a person commits a felon /ith malice, he intends the conse"uences of his felonious act. %n vie/ of paragraph 1 of (rt. 4, a person committing a felon is criminall liable although the conse"uences of his felonious acts are not intended b him. . . . .... %ntent is presumed from the commission of an unla/ful act. The presumption of criminal intent ma arise from the proof of the criminal act and it is for the accused to rebut this presumption. %n the case at bar, there is enough evidence that the accused confederated /ith one another in inflicting ph sical harm to the victim =an illegal act>. These acts /ere intentional, and the /rong done resulted in the death of their victim. 8ence, the are liable for all the direct and natural conse"uences of their unla/ful act, even if the ultimate result had not been intended.0E 8ence, this appeal. (ccused-appellants allege that the trial court erred in convicting them of murder.04 First. %t /ould appear that accused-appellants are members of a cult and that the bi,arre ritual performed over the victim /as consented to b the victim5s parents. @ith the permission of the victim5s parents, accused-appellant Carmen, together /ith the other accused-appellants, proceeded to sub7ect the bo to a ;treatment; calculated to drive the ;bad spirit; from the bo 5s bod . Hnfortunatel , the strange procedure resulted in the death of the bo . Thus, accused-appellants had no criminal intent to 6ill the bo . Their liabilit arises from their rec6less imprudence because the ought that to 6no/ their actions /ould not bring about the cure. The are, therefore, guilt of rec6less imprudence resulting in homicide and not of murder. (rt. ?D- of the Revised Penal Code, as amended, states that rec6less imprudence consists in voluntaril , but /ithout malice, doing or failing to do an act from /hich material damage results b reason of ine)cusable lac6 of precaution on the part of the person performing such act. Compared to intentional felonies, such as homicide or murder, /hat ta6es the place of the element of malice or intention to commit a /rong or evil is the failure of the offender to ta6e precautions due to lac6 of s6ill ta6ing into account his emplo ment, or occupation, degree of intelligence, ph sical condition, and other circumstances regarding persons, time, and place. The elements of rec6less imprudence are apparent in the acts done b accused-appellants /hich, because of their lac6 of medical s6ill in treating the victim of his alleged ailment, resulted in the latter5s death. (s alread stated, accused-appellants, none of /hom is a medical practitioner, belong to a religious group, 6no/n as the Missionaries of Cur 9ad of $atima, /hich is engaged in faith healing. %n United States v. Divino,?. the accused, /ho /as not a licensed ph sician, in an attempt to cure the victim of ulcers in her feet, /rapped a piece of clothing /hich had been soa6ed in petroleum around the victim5s feet and then lighted the clothing, thereb causing in7uries to the victim. The Court held the accused liable for rec6less imprudence resulting in ph sical in7uries. %t /as noted that the accused had no intention to cause an evil but rather to remed the victim5s ailment. %n another case, People v. Vda. de Golez,?1 the Court ruled that the proper charge to file against a nonmedical practitioner, /ho had treated the victim despite the fact that she did not possess the necessar technical 6no/ledge or s6ill to do so and caused the latter5s death, /as homicide through rec6less imprudence. The trial court5s reliance on the rule that criminal intent is presumed from the commission of an unla/ful act is untenable because such presumption onl holds in the absence of proof to the contrar .?0 The facts of the case indubitabl sho/ the absence of intent to 6ill on the part of the accused-appellants. %ndeed, the trial court5s findings can be sustained onl if the circumstances of the case are ignored and the Court limits itself to the time /hen accused-appellants undertoo6 their unauthori,ed ;treatment; of the victim. Cbviousl , such an evaluation of the case cannot be allo/ed. Conse"uentl , treacher cannot be appreciated for in the absence of intent to 6ill, there is no treacher or the deliberate emplo ment of means, methods, and manner of e)ecution to ensure the safet of the accused from the defensive or retaliator attac6s coming from the victim.?? Fie/ed in this light, the acts /hich the trial

court sa/ as manifestations of treacher in fact relate to efforts b accused-appellants to restrain Rand 9unta ao so that the can effect the cure on him. Cn the other hand, there is no merit in accused-appellants5 contention that the testimon of prosecution e e/itness 8one $e (bella is not credible. The Court is more than convinced of 8one $e5s credibilit . 8er testimon is clear, straightfor/ard, and is far from having been coached or contrived. 'he /as onl a fe/ meters a/a from the 6itchen /here accused-appellants conducted their ;pra -over; healing session not to mention that she had a good vantage point as the 6itchen had no roof nor /alls but onl a pantr . 8er testimon /as corroborated b the autops findings of &r. Mende, /ho, consistent /ith 8one $e5s testimon , noted fractures on the third left rib and on the base of the victim5s s6ull. @ith regard to &r. Mende,5s failure to find an stab /ound in the victim5s bod , he himself had e)plained that such could be due to the fact that at the time the autops /as conducted, the cadaver /as alread in an advanced state of decomposition. Rand 9unta ao5s cadaver /as e)humed 04 da s after it had been buried. Considering the length of time /hich had elapsed and the fact that the cadaver had not been embalmed, it /as ver li6el that the soft tissues had so decomposed that, as &r. Mende, said, it /as no longer possible to determine /hether there /as a stab /ound. (s for the other points raised b accused-appellants to detract the credibilit of 8one $e5s testimon , the same appear to be onl minor and trivial at best. (ccused-appellants contend that the failure of the prosecution to present the testimon of $rances Claire Rivera as /ell as the 6nife used in stabbing Rand 9unta ao puts in doubt the prosecution5s evidence. @e do not thin6 so. The presentation of the 6nife in evidence is not indispensable.?4 $inall , accused-appellants ma6e much of the fact that although the case /as tried under 3udge Renato C. &acudao, the decision /as rendered b 3udge Galicano (rriesgado /ho too6 over the case after the prosecution and the defense had rested their cases.?- 8o/ever, the fact that the 7udge /ho /rote the decision did not hear the testimonies of the /itnesses does not ma6e him less competent to render a decision, since his ruling is based on the records of the case and the transcript of stenographic notes of the testimonies of the /itnesses.?D Second. The "uestion no/ is /hether accused-appellants can be held liable for rec6less imprudence resulting in homicide, considering that the information charges them /ith murder. @e hold that the can. Rule 10. of the Revised Rules of Criminal Procedure provides in pertinent parts1 '!C. 4. Judgment in case o variance bet!een allegation and proo . @hen there is variance bet/een the offense charged in the complaint or information and that proved, and the offense as charged is included in or necessaril includes the offense proved, the accused shall be convicted of the offense proved /hich is included in the offense charged, or of the offense charged /hich is included in the offense proved. '!C. -. "#en an o ense includes or is included in anot#er. (n offense charged necessaril includes the offense proved /hen some of the essential elements or ingredients of the former, as alleged in the complaint or information, constitute the latter. (nd an offense charged is necessaril included in the offense proved, /hen the essential ingredients of the former constitute or form part of those constituting the latter. %n Samson v. $ourt o %ppeals,?2 the accused /ere charged /ith, and convicted of, estafa through falsification of public document. The Court of (ppeals modified the 7udgment and held one of the accused liable for estafa through falsification b negligence. Cn appeal, it /as contended that the appeals court erred in holding the accused liable for estafa through negligence because the information charged him /ith having /ilfull committed estafa. %n overruling this contention, the Court held1 @hile a criminal negligent act is not a simple modalit of a /illful crime, as /e held in :ui,on v. 3ustice of the Peace of Bacolor, G.R. *o. 9-DD41, 3ul 0E, 14--, but a distinct crime in itself, designated as a "uasi offense in our Penal Code, it ma ho/ever be said that a conviction for the former can be had under an information e)clusivel charging the commission of a /illful offense, upon the theor that the greater includes the lesser offense. This is the situation that obtains in the present case. (ppellant /as charged /ith /illful falsification but from the evidence submitted b the parties, the Court of (ppeals found that in effecting the falsification /hich made possible the

cashing of the chec6s in "uestion, appellant did not act /ith criminal intent but merel failed to ta6e proper and ade"uate means to assure himself of the identit of the real claimants as an ordinar prudent man /ould do. %n other /ords, the information alleges acts /hich charge /illful falsification but /hich turned out to be not /illful but negligent. This is a case covered b the rule /hen there is a variance bet/een the allegation and proof. . . . The fact that the information does not allege that the falsification /as committed /ith imprudence is of no moment for here this deficienc appears supplied b the evidence submitted b appellant himself and the result has proven beneficial to him. Certainl , having alleged that the falsification has been /illful, it /ould be incongruous to allege at the same time that it /as committed /ith imprudence for a charge of criminal intent is incompatible /ith the concept of negligence. %n People v. Fernando,?E the accused /as charged /ith, and convicted of, murder b the trial court. Cn appeal, this Court modified the 7udgment and held the accused liable for rec6less imprudence resulting in homicide after finding that he did not act /ith criminal intent. T#ird. Coming no/ to the imposable penalt , under (rt. ?D-, rec6less imprudence resulting in homicide is punishable b arresto ma&or in its ma)imum period to prision correccional in its medium period. %n this case, ta6ing into account the pertinent provisions of %ndeterminate 'entence 9a/, the accused-appellants should suffer the penalt of four =4> months of arresto ma&or, as minimum, to four =4> ears and t/o =0> months of prision correccional, as ma)imum. (s to their civil liabilit , accused-appellants should pa the heirs of Rand 9unta ao an indemnit in the amount of P-.,...... and moral damages also in the amount of P-.,.......?4 %n addition, the should pa e)emplar damages in the amount of P?.,...... in vie/ of accused-appellants5 gross negligence in attempting to ;cure; the victim /ithout a license to practice medicine and to give an e)ample or correction for the public good.4. @8!R!$CR!, the decision of the Regional Trial Court, Branch 14, Cebu Cit , is ($$%RM!& /ith the MC&%$%C(T%C* that accused-appellants are hereb declared guilt of rec6less imprudence resulting in homicide and are each sentenced to suffer an indeterminate prison term of four =4> months of arresto ma&or, as minimum, to four =4> ears and t/o =0> months of prision correccional, as ma)imum. %n addition, accusedappellants are CR&!R!& 7ointl and severall to pa the heirs of Rand 9unta ao indemnit in the amount of P-.,......, moral damages in the amount of P-.,......, and e)emplar damages in the amount of P?.,....... 'C CR&!R!&. 'ellosillo, 'uena, and De (eon, Jr., JJ., concur )uisumbing, J., on leave.

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Per 3udge Galicano *. (rriesgado. Records, pp. 1-0. T'* =8one $e (bella>, pp. 10-1-, &ec. 0?, 1442. &ecision, p. 0J Rollo, p. 12. T'* =!ddie 9unta ao>, pp. --2, 3an. 01, 144EJ T'* =Ronaldo Mende,>, p. 14, 3an. 0., 144E. T'* =!ddie 9unta ao>, pp. 2-E, 14, 3an. 01, 144EJ T'*, pp. 11-10, 3ul 02, 144E.

*d., pp. E-4J id., pp. 1?-1-. T'* =!ddie 9unta ao>, pp. 4-1., 3an. 01, 144E. T'* =!ddie 9unta ao>, pp. 1.-10, 3an. 01, 144E. *d., pp. 11-10. T'* =!ddie 9unta ao>, p. 10, 3an. 01, 144EJ !)h. %J Records, pp. 11.-114. !)h. CJ Records, p. 11.-B. T'* =Modesto Ca7ita>, pp. 4, 2-E, 0., $eb. ?, 144E. *d., pp. E-1., 14-1-, 12. Records, pp. 11.-& and !. T'* =Ronaldo Mende,>, pp. 2, 4-1?, 3an. 0., 144E. *d., pp. 1-, 14. T'* =Ritsel Blase>, pp. ?-11, 00-0?, March ?, 144E. *d., pp. 1.-11.

1.

11

10

1?

14

1-

1D

12

1E

14

T'* =Maria 9ilia 3imene,>, pp. 1--12J $eb. 02, 144EJ T'* =Fisitacion 'eniega>, pp. ?--, $eb. 02, 144EJ and T'* =3osefina (bing>, pp. E-4, $eb. 02, 144E.
0. 01

T'* =Milagros Carloto>, pp. 4--, $eb. 0-, 144E. *d., pp. 2-4, 1--1E. Records, pp. 42-4E. T'* ='alvador 'olima>, pp. 0-?, 3ul 02, 144E. T'* =!ddie 9unta ao>, pp. 4-2, 3ul 02, 144E. *d., pp. 0-?. &ecision, p. 1?J Rollo, p. 0E. &ecision, pp. 4-11J Rollo, pp. 04-0D. Rollo, p. D4. 10 Phil. 12- =14.E>. 1.E Phil. E-- =14D.>. People v. 'ia Teb Ban, -4 Phil. -0 =1404>.

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04

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04

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'ee People v. 'uplito, ?14 'CR( 44? =1444>J People v. Gatchalian, ?.. 'CR( 1 =144E>. People v. &ela Cru,, G.R. *o. 11E4D2, 3ul 14, 0.... (ppellants5 Brief, pp. 14-1-J Rollo, pp. 2.-21 People v. Hl,oron, 0ED 'CR( 241 =144E>. 1.? Phil. 022 =14-E>J Cabella v. 'andiganba an, 142 'CR( 44 =1441>. 44 Phil. 2- =140D>.

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Civil Code, (rts. 00.D=?> and 0014=1>J 'ee People v. 'ilva, ?01 'CR( D42 =1444>J People v. 'ilvestre, ?.2 'CR( D. =1444>.
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Civil Code, (rts. 0004 and 00?1J 'ee People v. Medroso, 3r., D0 'CR( 04- =142->.

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