HE PEOPLE OF THE

PHILIPPINES, plaintiff-appellee,
vs.
ANTONIO TOLING y ROVERO and
JOSE TOLING y ROVERO, defendants-
appellants.
Office of the Solicitor General Felix V.
Makasiar and Solicitor Dominador L.
Quiroz for plaintiff-appellee.
Santiago F. Alidio as counsel de oficio for
defendants-appellants.
AQUINO, J .:
Antonio Toling and Jose Toling, brothers,
appealed from the decision of the Court of
First Instance of Laguna, finding them guilty
of multiple murder and attempted murder,
sentencing them to death and ordering them
to indemnify each set of heirs of (1) Teresita
B. Escanan, (2) Antonio B. Mabisa, (3)
Isabelo S. Dando, (4) Elena B. Erminio (5)
Modesta R. Brondial (6) Isabel Felices and
(7) Teodoro F. Bautista in the sum of P6,000
and to pay Amanda Mapa the sum of P500
(Criminal Case No. SC-966). The judgment
of conviction was based on the following
facts:
Antonio Toling and Jose Toling, twins, both
married, are natives of Barrio Nenita which
is about eighteen (or nine) kilometers away
from Mondragon, Northern Samar. They are
illiterate farmers tilling their own lands.
They were forty-eight years old in 1966.
Antonio is one hour older than Jose. Being
twins, they look alike very much. However,
Antonio has a distinguishing cut in his ear
(44 tsn Jan. 14, 1966).
Antonio's daughter, Leonora, was working
in Manila as a laundrywoman since
September, 1964. Jose's three children one
girl and two boys, had stayed in Manila also
since 1964.
Antonio decided to go to Manila after
receiving a letter from Leonora telling him
that she would give him money. To have
money for his expenses, Antonio killed a pig
and sold the meat to Jose's wife for sixty
pesos. Jose decided to go with Antonio in
order to see his children. He was able to
raise eighty-five pesos for his expenses.
On January 6, 1965, with
a bayong containing their pants and shirts,
the twins left Barrio Nenita and took a bus
to Allen. From there, they took a launch to
Matnog, Sorsogon. From Matnog, they went
to Daraga, Albay on board an Alatco bus,
and from Daraga, they rode on the train,
arriving at the Paco railroad station in
Manila at about seven o'clock in the
morning of January 8th. It was their first trip
to the big city.
At the Paco station, the twins took a jeepney
which brought them to Tondo. By means of
a letter which Aniano Espenola a labor-
recruiter, had given them, they were able to
locate an employment agency where they
learned the address of the Eng Heng
Glassware. Antonio's daughter was working
in that store. Accompanied by Juan, an
employee of the agency, they proceeded to
her employer's establishment. Leonora gave
her father fifty pesos. Sencio Rubis
Antonio's grandson, gave him thirty pesos.
Antonio placed the eighty pesos in the right
pocket of his pants. It was then noontime.
Jose was not able to find any of his children
in the city. The twins returned to the agency
where they ate their lunch at Juan's expense.
From the agency, Juan took the twins to the
Tutuban railroad station that same day,
January 8th, for their homeward trip.
After buying their tickets, they boarded the
night Bicol express train at about five
o'clock in the afternoon. The train left at six
o'clock that evening.
The twins were in coach No. 9 which was
the third from the rear of the dining car. The
coach had one row of two-passenger seats
and another row of three- passenger seats.
Each seat faced an opposite seat. An aisle
separated the two rows. The brothers were
seated side by side on the fourth three-
passenger seat from the rear, facing the back
door. Jose was seated between Antonio, who
was near the window, and a three-year old
boy. Beside the boy was a woman breast-
feeding her baby who was near the aisle.
That woman was Corazon Bernal. There
were more than one hundred twenty
passengers in the coach. Some passengers
were standing on the aisle.
Sitting on the third seat and facing the
brothers were two men and an old woman
who was sleeping with her head resting on
the back of the seat (Exh. 2). on the two-
passenger seat across the aisle in line with
the seat where the brothers were sitting,
there were seated a fat woman, who was
near the window, and one Cipriano Reganet
who was on her left. On the opposite seat
were seated a woman, her daughter and
Amanda Mapa with an eight-month old
baby. They were in front of Reganet.
Two chico vendors entered the coach when
the train stopped at Cabuyao, Laguna. The
brothers bought some chicos which they put
aside. The vendors alighted when the train
started moving. It was around eight o'clock
in the evening.
Not long after the train had resumed its
regular speed, Antonio stood up and with a
pair of scissors (Exh. B) stabbed the man
sitting directly in front of him. The victim
stood up but soon collapsed on his seat.
For his part, Jose stabbed with a knife (Exh.
A) the sleeping old woman who was seated
opposite him. She was not able to get up
anymore.
1

Upon seeing what was happening, Amanda
Mapa, with her baby, attempted to leave her
seat, but before she could escape Jose
stabbed her, hitting her on her right hand
with which she was supporting her child
(Exh. D-2). The blade entered the dorsal
side and passed through the palm.
Fortunately, the child was not injured. Most
of the passengers scurried away for safety
but the twins, who had run amuck, stabbed
everyone whom they encountered inside the
coach.
2

Among the passengers in the third coach
was Constabulary Sergeant Vicente Z.
Rayel, a train escort who, on that occasion,
was not on duty. He was taking his wife and
children to Calauag, Quezon. He was going
to the dining car to drink coffee when
someone informed him that there was a
stabbing inside the coach where he had
come from. He immediately proceeded to
return to coach No. 9. Upon reaching coach
8, he saw a dead man sprawled on the floor
near the toilet. At a distance of around nine
meters, he saw a man on the platform
separating coaches Nos. 8 and 9, holding a
knife between the thumb and index finger of
his right hand, with its blade pointed
outward. He shouted to the man that he
(Rayel) was a Constabularyman and a
person in authority and Rayel ordered him to
lay down his knife (Exh. A) upon the count
of three, or he would be shot.
Instead of obeying, the man changed his
hold on the knife by clutching it between his
palm and little finger (with the blade pointed
inward) and, in a suicidal impulse, stabbed
himself on his left breast. He slowly sank to
the floor and was prostrate thereon. Near the
platform where he had fallen, Rayel saw
another man holding a pair of scissors (Exh.
B). He retreated to the steps near the
platform when he saw Rayel armed with a
pistol.
Rayel learned from his wife that the man
sitting opposite her was stabbed to death.
Constabulary Sergeant Vicente Aldea was
also in the train. He was in the dining car
when he received the information that there
were killings in the third coach. He
immediately went there and, while at the
rear of the coach, he met Mrs. Mapa who
was wounded. He saw Antonio stabbing
with his scissors two women and a small girl
and a woman who was later identified as
Teresita B. Escanan (Exh. I to I-3). Antonio
was not wounded. Those victims were
prostrate on the seats of the coach and on the
aisle.
Aldea shouted at Antonio to surrender but
the latter made a thrust at him with the
scissors. When Antonio was about to stab
another person, Aldea stood on a seat and
repeatedly struck Antonio on the head with
the butt of his pistol, knocking him down.
Aldea then jumped and stepped on Antonio's
buttocks and wrested the scissors away from
him. Antonio offered resistance despite the
blows administered to him.
When the train arrived at the Calamba
station, four Constabulary soldiers escorted
the twins from the train and turned them
over to the custody of the Calamba police.
Sergeant Rayel took down their names. The
bloodstained scissors and knife were turned
over to the Constabulary Criminal
Investigation Service (CIS).
Some of the victims were found dead in the
coach while others were picked up along the
railroad tracks between Cabuyao and
Calamba. Those who were still alive were
brought to different hospitals for first-aid
treatment. The dead numbering twelve in all
were brought to Funeraria Quiogue, the
official morgue of the National Bureau of
Investigation (NBI) in Manila, where their
cadavers were autopsied (Exh. C to C-11). A
Constabulary photographer took some
pictures of the victims (Exh. G to I-2, J-1
and J-2).
Of the twelve persons who perished, eight,
whose bodies were found in the train, died
from stab wounds, namely:
(1) Isabel Felices, 60, housewife, Ginlajon,
Sorsogon.
(2) Antonio B. Mabisa, 28, married, laborer,
Guinayangan, Quezon.
(3) Isabelo S. Dando, 45, married, Paracale,
Camarines Norte.
(4) Susana C. Hernandez, 46, married,
housekeeper, Jose Panganiban, Camarines
Norte.
(5) Teodoro F. Bautista, 72, married,
Nawasa employee, San Juan, Rizal.
(6) Modesta R. Brondial 58, married,
housekeeper, Legaspi City.
(7) Elena B. Erminio 10, student, 12 Liberty
Avenue, Cubao, Quezon City and
(8) Teresita B. Escanan, 25, housemaid, 66
Menlo Street, Pasay City (Exh. C to C-3, C-
7, C-8, C-9, C-11, L to L-2, N to N-2, 0 to 0-
2, P to P-2, Q to Q-2, R to R-2 and T to T-2)
Four dead persons were found near the
railroad tracks. Apparently, they jumped
from the moving train to avoid being killed.
They were:
(1) Timoteo U. Dimaano, 53 married,
carpenter, Miguelin, Sampaloc, Manila. .
(2) Miguel C. Oriarte, 45, married, Dalagan,
Lopez, Quezon.
(3) Salvador A. Maqueda 52, married,
farmer, Lopez, Quezon and
(4) Shirley A. Valenciano, 27, married,
housekeeper, 657-D Jorge Street, Pasay City
(Exh. C-4. C-5, C-6, C-10, J, J-1, J-2, K to
K-2, M to M-3 and S to S-2).
Among the injured were Lucila Pantoja,
Baby X, Mrs. X, Mrs. Armanda Mapa-
Dizon, Brigida Sarmiento-Palma, Cipriano
Reganet and Corazon Bernal-Astrolavio
(Exh. D to D-5). Mrs. Astrolavio supposedly
died later (43 tsn January 14, 1966).
Mrs. Mapa declared that because of the stab
wound inflicted upon her right hand by Jose
Toling, she was first brought to the Calamba
Emergency Hospital. Later, she was
transferred to the hospital of the Philippine
National Railways at Caloocan City where
she was confined for thirteen days free of
charge. As a result of her injury, she was not
able to engage in her occupation of selling
fish for one month, thereby losing an
expected earning of one hundred fifty pesos.
When she ran for safety with her child, she
lost clothing materials valued at three
hundred pesos aside from two hundred pesos
cash in a paper bag which was lost.
The case was investigated by the Criminal
Investigation Service of the Second
Constabulary Zone headquarters at Camp
Vicente Lim, Canlubang, Laguna. On
January 9, 1965 Constabulary investigators
took down the statements of Mrs. Mapa-
Dizon, Cipriano Reganet, Corazon Bernal,
Brigida de Sarmiento and Sergeant Aldea.
On that date, the statements of the Toling
brothers were taken at the North General
Hospital. Sergeant Rayel also gave a
statement.
Antonio Toling told the investigators that
while in the train he was stabbed by a person
"from the station" who wanted to get his
money. He retaliated by stabbing his
assailant. He said that he stabbed somebody
"who might have died and others that might
not". He clarified that in the train four
persons were asking money from him. He
stabbed one of them. "It was a hold-up".
He revealed that after stabbing the person
who wanted to rob him, he stabbed other
persons because, inasmuch as he "was
already bound to die", he wanted "to kill
everybody" (Exh. X or 8, 49 tsn Sept. 3,
1965).
Jose Toling, in his statement, said that he
was wounded because he was stabbed by a
person "from Camarines" who was taking
his money. He retaliated by stabbing his
assailant with the scissors. He said that he
stabbed two persons who were demanding
money from him and who were armed with
knives and iron bars.
When Jose Toling was informed that several
persons died due to the stabbing, he
commented that everybody was trying "to
kill each other" (Exh. I-A).
According to Jose Toling, two persons
grabbed the scissors in his pocket and
stabbed him in the back with the scissors
and then escaped. Antonio allegedly pulled
out the scissors from his back, gave them to
him and told him to avenge himself with the
scissors.
On January 20, 1965 a Constabulary
sergeant filed against the Toling brothers in
the municipal court of Cabuyao, Laguna a
criminal complaint for multiple murder and
multiple frustrated murder. Through
counsel, the accused waived the second
stage of the preliminary investigation. The
case was elevated to the Court of First
Instance of Laguna where the Provincial
Fiscal on March 10, 1965 filed against the
Toling brothers an information for multiple
murder (nine victims), multiple frustrated
murder (six victims) and triple homicide (as
to three persons who died after jumping
from the running train to avoid being
stabbed).
At the arraignment, the accused, assisted by
their counsel de oficio pleaded not guilty.
After trial, Judge Arsenio Naawa rendered
the judgment of conviction already
mentioned. The Toling brothers appealed.
In this appeal, appellants' counsel de
oficio assails the credibility of the
prosecution witnesses, argues that the
appellants acted in self-defense and
contends, in the alternative, that their
criminal liability was only for two
homicides and for physical injuries.
According to the evidence for the defense
(as distinguished from appellants'
statements, Exhibits 1 and 8), when the
Toling twins were at the Tutuban Railroad
Station in the afternoon of January 8, 1965,
Antonio went to the ticket counter to buy
tickets for himself and Jose. To pay for the
tickets, he took out his money from the right
pocket of his pants and later put back the
remainder in the same pocket. The two
brothers noticed that four men at some
distance from them were allegedly
observing them, whispering among
themselves and making signs. The twins
suspected that the four men harbored evil
intentions towards them.
When the twins boarded the train, the four
men followed them. They were facing the
twins. They were talking in a low voice. The
twins sat on a two passenger seat facing the
front door of the coach, the window being
on the right of Antonio and Jose being to his
left. Two of the four men, whom they were
suspecting of having evil intentions towards
them, sat on the seat facing them, while the
other two seated themselves behind them.
Some old women were near them. When the
train was already running, the man sitting
near the aisle allegedly stood up, approached
Antonio and pointed a balisong knife at his
throat while the other man who was sitting
near the window and who was holding also
a balisong knife attempted to pick Antonio's
right pocket, threatening him with death if
he would not hand over the money. Antonio
answered that he would give only one-half
of his money provided the man would not
hurt him, adding that his (Antonio's) place
was still very far.
When Antonio felt some pain in his throat,
he suddenly drew out his hunting knife or
small bolo (eight inches long including the
handle) from the back pocket of his pants
and stabbed the man with it, causing him to
fall to the floor with his balisong. He also
stabbed the man who was picking his
pocket. Antonio identified the two men
whom he had stabbed as those shown in the
photographs of Antonio B. Mabisa (Exh. L-
1 and L-2 or 5-A and
5-B) and Isabelo S. Dando (Exh. N-1 and N-
2 or 7-A and 7-B). While Antonio was
stabbing the second man, another person
from behind allegedly stabbed him on the
forehead, causing him to lose consciousness
and to fall on the floor (Antonio has two
scars on his forehead and a scar on his chest
and left forearm, 85, 87 tsn). He regained
consciousness when two Constabulary
soldiers raised him. His money was gone.
Seeing his brother in a serious condition,
Jose stabbed with the scissors the man who
had wounded his brother. Jose hit the man in
the abdomen. Jose was stabbed in the back
by somebody. Jose stabbed also that
assailant in the middle part of the abdomen,
inflicting a deep wound.
However, Jose did not see what happened to
the two men whom he had stabbed because
he was already weak. He fell down and
became unconscious. He identified Exhibit
A as the knife used by Antonio and Exhibit
B as the scissors which he himself had used.
He recovered consciousness when a
Constabulary soldier brought him out of the
train.
The brothers presented Doctor Leonardo del
Rosario, a physician of the North General
Hospital who treated them during the early
hours of January 9, 1965 and who testified
that he found the following injuries on
Antonio Toling:
Wound, incised, 1-1/4 inches (sutured),
frontal, right; 3-1/2 inches each, mid-frontal
(wound on the forehead) and
Wound, stabbed, 3/4 inch, 1 inch medial to
anterior axillary line level of 3rd ICS right,
penetrating thoracic cavity (chest wound
(Exh. 11).
and on Jose Toling a stab wound, one inch
long on the paravertebral level of the fifth
rib on the left, penetrating the thoracic
cavity (Exh. 10). The wound was on the
spinal column in line with the armpit or
"about one inch from the midline to the left"
(113 tsn). The twins were discharged from
the hospital on January 17th.
The trial court, in its endeavor to ascertain
the motive for the twins' rampageous
behavior, which resulted in the macabre
deaths of several innocent persons, made the
following observations:
What could be the reason or motive that
actuated the accused to run amuck? It
appears that the accused travelled long over
land and sea spending their hard earned
money and suffering privations, even to the
extent of foregoing their breakfast, only to
receive as recompense with respect to
Antonio the meager sum of P50 from his
daughter and P30 from his grandson and
with respect to Jose to receive nothing at all
from any of his three children whom he
could not locate in Manila.
It also appears that the accused, who are
twins, are queerly alike, a fact which could
easily invite some people to stare or gaze at
them and wonder at their very close
resemblance. Like some persons who easily
get angry when stared at, however, the
accused, when stared at by the persons in
front of them, immediately suspected them
as having evil intention towards them
(accused).
To the mind of the Court, therefore, it is
despondency on the part of the accused
coupled with their unfounded suspicion of
evil intention on the part of those who
happened to stare at them that broke the
limit of their self-control and actuated them
to run amuck.
We surmise that to the captive spectators in
coach No. 9 the spectacle of middle-aged
rustic twins, whom, in the limited space of
the coach, their co-passengers had no choice
but to notice and gaze at, was a novelty.
Through some telepathic or extra-sensory
perception the twins must have sensed that
their co-passengers were talking about them
in whispers and making depreciatory
remarks or jokes about their humble
persons. In their parochial minds, they might
have entertained the notion or suspicion that
their male companions, taking advantage of
their ignorance and naivete, might victimize
them by stealing their little money. Hence,
they became hostile to their co-passengers.
Their pent-up hostility erupted into violence
and murderous fury.
A painstaking examination of the evidence
leads to the conclusion that the trial court
and the prosecution witnesses confounded
one twin for the other. Such a confusion was
unavoidable because the twins, according to
a Constabulary investigator, are "very
identical". Thus, on the witness stand CIS
Sergeants Alfredo C. Orbase and Liberato
Tamundong after pointing to the twins,
refused to take the risk of identifying who
was Antonio and who was Jose. They
confessed that they might be mistaken in
making such a specific identification (28 tsn
September 3, 1965; 32 tsn November 5,
1965).
In our opinion, to ascertain who is Antonio
and who is Jose, the reliable guides would
be their sworn statements (Exh. 1 and 8),
executed one day after the killing, their own
testimonies and the medical certificates
(Exh. 10 and 11). Those parts of the
evidence reveal that the one who was armed
with the knife was Antonio and the one who
was armed with the scissors was Jose. The
prosecution witnesses and the trial court
assumed that Antonio was armed with the
scissors (Exh. B) and Jose was armed with
the knife (Exh. A). That assumption is
erroneous.
In his statement and testimony, Antonio
declared that he was armed with a knife,
while Jose declared that he was armed with
the scissors which Antonio had purchased at
the Tutuban station, before he boarded the
train and which he gave to Jose because the
latter is a barber whose old pair of scissors
was already rusty. As thus clarified, the
person whom Sergeant Rayel espied as
having attempted to commit suicide on the
platform of the train by stabbing himself on
the chest would be Antonio (not Jose). That
conclusion is confirmed by the medical
certificate, Exhibit 11, wherein it is attested
that Antonio had a wound in the chest. And
the person whom Sergeant Aldea subdued
after the former had stabbed several persons
with a pair of scissors (not with a knife) was
Jose and not Antonio. That fact is contained
in his statement of January 9, 1965 (p. 9,
Record).
The mistake of the prosecution witnesses in
taking Antonio for Jose and vice-versa does
not detract from their credibility. The
controlling fact is that those witnesses
confirmed the admission of the twins that
they stabbed several passengers.
Appellants' counsel based his arguments on
the summaries of the evidence found in the
trial court's decision. He argues that the
testimonies of Sergeants Rayel and Aldea
are contradictory but he does not
particularize on the supposed contradictions.
The testimonies of the two witnesses do not
cancel each other. The main point of Rayel's
testimony is that he saw one of the twins
stabbing himself in the chest and apparently
trying to commit suicide. Aldea's testimony
is that he knocked down the other twin,
disabled him and prevented him from
committing other killings.
It may be admitted that Rayel's testimony
that Aldea took the knife of Jose Toling was
not corroborated by Aldea. Neither did
Aldea testify that Antonio was near Jose on
the platform of the train. Those
discrepancies do not render Rayel and Aldea
unworthy of belief. They signify that Aldea
and Rayel did not give rehearsed testimonies
or did not compare notes.
Where, as in this case, the events transpired
in rapid succession in the coach of the train
and it was nighttime, it is not surprising that
Rayel and Aldea would not give identical
testimonies (See 6 Moran's Comments on
the Rules of Court, 1970 Ed. 139-140;
People vs. Resayaga, L-23234, December
26, 1963, 54 SCRA 350). There is no doubt
that Aldea and Rayel witnessed some of the
acts of the twins but they did not observe the
same events and their powers of perception
and recollection are not the same.
Appellants' counsel assails the testimony of
Mrs. Mapa. He contends that no one
corroborated her testimony that one of the
twins stabbed a man and a sleeping woman
sitting on the seat opposite the seat occupied
by the twins. The truth is that Mrs. Mapa's
testimony was confirmed by the necropsy
reports and by the twins themselves who
admitted that they stabbed some persons.
On the other hand, the defense failed to
prove that persons, other than the twins,
could have inflicted the stab wounds. There
is no doubt as to the corpus delicti. And
there can be no doubt that the twins, from
their own admissions (Exh. 1 and 8) and
their testimonies, not to mention the
testimonies of Rayel, Aldea, Mrs. Mapa and
the CIS investigators, were the authors of
the killings.
Apparently, because there was no doubt on
the twins' culpability, since they were caught
in flagrante delicto the CIS investigators did
not bother to get the statements of the other
passengers in Coach No. 9. It is probable
that no one actually saw the acts of the twins
from beginning to end because everyone in
Coach No. 9 was trying to leave it in order
to save his life. The ensuing commotion and
confusion prevented the passengers from
having a full personal knowledge of how the
twins consummated all the killings.
On the other hand, the twins' theory of self-
defense is highly incredible. In that crowded
coach No. 9, which was lighted, it was
improbable that two or more persons could
have held up the twins without being readily
perceived by the other passengers. The twins
would have made an outcry had there really
been an attempt to rob them. The injuries,
which they sustained, could be attributed to
the blows which the other passengers
inflicted on them to stop their murderous
rampage.
Appellants' view is that they should be held
liable only for two homicides, because they
admittedly killed Antonio B. Mabisa and
Isabelo S. Dando, and for physical injuries
because they did not deny that Jose Toling
stabbed Mrs. Mapa. We have to reject that
view. Confronted as we are with the grave
task of passing judgment on the aberrant
behavior of two yokels from the Samar
hinterland who reached manhood without
coming into contact with the mainstream of
civilization in urban areas, we exercised
utmost care and solicitude in reviewing the
evidence. We are convinced that the record
conclusively establishes appellants'
responsibility for the eight killings.
To the seven dead persons whose heirs
should be indemnified, according to the trial
court, because they died due to stab wounds,
should be added the name of Susana C.
Hernandez (Exh. P, P-1 and P-2). The
omission of her name in judgment was
probably due to inadvertence. According to
the necropsy reports, four persons, namely,
Shirley A. Valenciano, Salvador A.
Maqueda, Miguel C. Oriarte and Timoteo U.
Dimaano, died due to multiple traumatic
injuries consisting of abrasions, contusions,
lacerations and fractures on the head, body
and extremities (Exh. J to J-2, K to K-2, M
to M-2 and S to S-2).
The conjecture is that they jumped from the
moving tracing to avoid being killed but in
so doing they met their untimely and
horrible deaths. The trial court did not
adjudge them as victims whose heirs should
be indemnified. As to three of them, the
information charges that the accused
committed homicide. The trial court
dismissed that charge for lack of evidence.
No one testified that those four victims
jumped from the train. Had the necropsy
reports been reinforced by testimony
showing that the proximate cause of their
deaths was the violent and murderous
conduct of the twins, then the latter would
be criminally responsible for their deaths.
Article 4 of the Revised Penal Code
provides that "criminal liability shall be
incurred by any person committing a felony
(delito) although the wrongful act done be
different from that which he intended". The
presumption is that "a person intends the
ordinary consequences of his voluntary act"
(Sec. 5[c], Rule 131, Rules of Court).
The rule is that "if a man creates in another
man's mind an immediate sense of danger
which causes such person to try to escape,
and in so doing he injures himself, the
person who creates such a state of mind is
responsible for the injuries which result"
(Reg. vs. Halliday 61 L. T. Rep. [N.S.] 701,
cited in U.S. vs. Valdez, 41 Phil. 4911, 500).
Following that rule, is was held that "if a
person against whom a criminal assault is
directed reasonably believes himself to be in
danger of death or great bodily harm and in
order to escape jumps into the water,
impelled by the instinct of self-preservation,
the assailant is responsible for homicide in
case death results by drowning" (Syllabus,
U.S. vs. Valdez, supra, See People vs.
Buhay, 79 Phil. 371).
The absence of eyewitness-testimony as to
the jumping from the train of the four
victims already named precludes the
imputation of criminal responsibility to the
appellants for the ghastly deaths of the said
victims.
The same observation applies to the injuries
suffered by the other victims. The charge of
multiple frustrated murder based on the
injuries suffered by Cipriano Pantoja, Dinna
Nosal, Corazon Bernal and Brigida
Sarmiento (Exh. D, D-3 to D-5) was
dismissed by the trial court for lack of
evidence. Unlike Mrs. Mapa, the offended
parties involved did not testify on the
injuries inflicted on them.
The eight killings and the attempted killing
should be treated as separate crimes of
murder and attempted murder qualified be
treachery (alevosia) (Art. 14[16], Revised
Penal Code). The unexpected, surprise
assaults perpetrated by the twins upon their
co-passengers, who did not anticipate that
the twins would act likejuramentados and
who were unable to defend themselves (even
if some of them might have had weapons on
their persons) was a mode of execution that
insured the consummation of the twins'
diabolical objective to butcher their co-
passengers. The conduct of the twins
evinced conspiracy and community of
design.
The eight killings and the attempted murder
were perpetrated by means of different acts.
Hence, they cannot be regarded as
constituting a complex crime under article
48 of the Revised Penal Code which refers
to cases where "a single act constitutes two
or more grave felonies, or when an offense
is a necessary means for committing the
other".
As noted by Cuello Calon, the so-called
"concurso formal o ideal de delitos reviste
dos formas: (a) cuando un solo hecho
constituye dos o mas delitos (el llamado
delito compuesto); (b) cuando uno de ellos
sea medio necesario para cometer otro (el
llamado delito complejo)." (1 Derecho
Penal, 12th Ed. 650).
On the other hand, "en al concurso real de
delitos", the rule, when there is
"acumulacion material de las penas", is that
"si son varios los resultados, si son varias las
acciones, esta conforme con la logica y con
la justicia que el agente soporte la carga de
cada uno de los delitos" (Ibid, p. 652, People
vs. Mori, L-23511, January 31, 1974, 55
SCRA 382, 403).
The twins are liable for eight (8) murders
and one attempted murder. (See People vs.
Salazar, 105 Phil. 1058 where the accused
Moro, who ran amuck, killed sixteen
persons and wounded others, was convicted
of sixteen separate murders, one frustrated
murder and two attempted murders; People
vs. Mortero, 108 Phil. 31, the Panampunan
massacre case, where six defendants were
convicted of fourteen separate murders;
People vs. Remollino, 109 Phil. 607, where
a person who fired successively at six
victims was convicted of six separate
homicides; U. S. Beecham, 15 Phil. 272,
involving four murders; People vs. Macaso,
85 Phil. 819, 828, involving eleven murders;
U.S. vs. Jamad, 37 Phil. 305; U.S. vs.
Balaba, 37 Phil. 260, 271. Contra: People
vs. Cabrera, 43 Phil. 82, 102-103; People vs.
Floresca, 99 Phil. 1044; People vs. Sakam,
61 Phil. 27; People vs. Lawas, 97 Phil. 975;
People vs. Manantan, 94 Phil. 831; People
vs. Umali, 96 Phil. 185; People vs. Cu
Unjiengi, 61 Phil. 236; People vs. Penas, 66
Phil. 682; People vs. De Leon, 49 Phil. 437,
where the crimes committed by means of
separate acts were held to be complex on the
theory that they were the product of a single
criminal impulse or intent).
As no generic mitigating and aggravating
circumstances were proven in this case, the
penalty for murder should be imposed in its
medium period or reclusion perpetua (Arts.
64[l] and 248, Revised Penal Code. The
death penalty imposed by the trial court was
not warranted.
A separate penalty for attempted murder
should be imposed on the appellants. No
modifying circumstances can be appreciated
in the attempted murder case.
WHEREFORE, the trial court's judgment is
modified by setting aside the death sentence.
Defendants-appellants Antonio Toling and
Jose Toling are found guilty, as co-
principals, of eight (8) separate murders and
one attempted murder. Each one of them is
sentenced to eight (8) reclusion
perpetuas for the eight murders and to an
indeterminate penalty of one (1) year
of prision correccional as minimum to six
(6) years and one (1) day of prision
mayor as maximum for the attempted
murder and to pay solidarily an indemnity of
P12,000 to each set of heirs of the seven
victims named in the dispositive part of the
trial court's decision and of the eight victim,
Susana C. Hernandez, or a total indemnity
of P96,000, and an indemnity of P500 to
Amanda Mapa. In the service of the
penalties, the forty-year limit fixed in the
penultimate paragraph of article 70 of the
Revised Penal Code should be observed.
Costs against the appellants.


PEOPLE OF THE
PHILIPPINES, appellee,
vs.
BETH TEMPORADA, appellant.
D E C I S I O N
YNARES-SANTIAGO, J .:
Before us for review is the February 24,
2006 Decision
1
of the Court of Appeals
(CA), affirming with modification the May
14, 2004 Decision
2
of the Regional Trial
Court (RTC) of Manila, Branch 33,
convicting accused-appellant Beth
Temporada of the crime of large scale illegal
recruitment, or violation of Article 38 of the
Labor Code, as amended, and five (5) counts
of estafa under Article 315, par. (2)(a) of the
Revised Penal Code (RPC).
The antecedents, as found by the appellate
court, are as follows:
From September 2001 to January 2002,
accused Rosemarie "Baby" Robles,
Bernadette Miranda, Nenita Catacotan and
Jojo Resco and appellant Beth Temporada,
all employees of the Alternative Travel and
Tours Corporation (ATTC), recruited and
promised overseas employment, for a fee, to
complainants Rogelio Legaspi, Jr. as
technician in Singapore, and Soledad Atle,
Luz Minkay, Evelyn Estacio and Dennis
Dimaano as factory workers in Hongkong.
The accused and appellant were then
holding office at Dela Rosa Street, Makati
City but eventually transferred business to
Discovery Plaza, Ermita, Manila. After
complainants had submitted all the
requirements consisting of their respective
application forms, passports, NBI clearances
and medical certificates, the accused and
appellant, on different dates, collected and
received from them placement fees in
various amounts, viz: a) from Rogelio
Legaspi, Jr. 57,600.00; b) from Dennis
Dimaano P66,520.00; c) from Evelyn
Estacio P88,520.00; d) from Soledad Atle
P69,520.00 and e) from Luz Minkay
P69,520.00. As none of them was able to
leave nor recover the amounts they had paid,
complainant lodged separate criminal
complaints against accused and appellant
before the City Prosecutor of Manila. On
November 29, 2002, Assistant City
Prosecutor Restituto Mangalindan, Jr. filed
six (6) Informations against the accused and
appellant, one for Illegal Recruitment in
Large Scale under Article 38 (a) of the
Labor Code as amended, and the rest for
five (5) counts of estafaunder Article 315
paragraph 2 (a) of the Revised Penal Code.
The Information for large scale illegal
recruitment reads:
Criminal Case No. 02-208371:
"The undersigned accuses ROSEMARIE
"BABY" ROBLES, BERNADETTE M.
MIRANDA, BETH TEMPORADA,
NENITA CATACOTAN and JOJO RESCO
x x x.
That in or about and during the period
comprised between the months of
September 2001 and January 2002,
inclusive, in the City of Manila, Philippines,
the said accused, representing themselves to
have the power and capacity to contract,
enlist and transport Filipino workers for
employment abroad, did then and there
willfully, unlawfully for a fee, recruit and
promise employment to REGELIO A.
LEGASPI, JR., DENNIS T. DIMAANO,
EVELEYN V. ESTACIO, SOLEDAD B.
ATTE and LUZ MINKAY without first
having secured the required license from the
Department of Labor and Employment as
required by law, and charge or accept
directly or indirectly from said
complainant[s] the amount of PH57,600.00,
PH66,520.00, PH88,520.00, PH69,520.00,
PH69,520.00, respectively, as placement
fees in consideration for their overseas
employment, which amounts are in excess
of or greater than that specified in the
scheduled of allowable fees prescribed of
the POEA and without reasons and without
fault of the said complainants, failed to
actually deploy them and failed to reimburse
them the expenses they incurred in
connection with the documentation and
processing of their papers for purposes of
their deployment.
Contrary to law."
Except for the name of private complainant
and the amount involved, the five (5)
Informations for estafacontain substantially
identical averments as follows:
Criminal Case No. 02-208372:
"The undersigned accuses ROSEMARIE
"BABY" ROBLES, BERNADETTE M.
MIRANDA, BETH TEMPORADA,
NENITA CATACOTAN and JOJO RESCO
x x x.
That in or about and during the period
comprised between November 23, 2001 and
January 12, 2002, inclusive, in the City of
Manila, Philippines, the said accused,
conspiring and confederating together and
helping one another, did then and there
willfully, unlawfully and feloniously
defraud ROGELIO A. LEGASPI, JR., in the
following manner, to wit: the said accused,
by means of false manifestations and
fraudulent representations which they made
to said ROGELIO A. LEGASPI, JR., prior
to and even simultaneous with the
commission of the fraud, to the effect that
they have the power and capacity to recruit
and employ ROGELIO A. LEGASPI, JR.,
as technician in Singapore and could
facilitate the processing of the pertinent
papers if given the necessary amount to
meet the requirements thereof, induced and
succeeded in inducing said ROGELIO A.
LEGASPI, JR., to give and deliver, as in fact
he gave and delivered to said accused the
amount of P57,600.00 on the strength of
said manifestations and representations said
accused well knowing that the same were
false and fraudulent and were made solely
for the purpose of obtaining, as in fact they
did obtain the amount of P57,600.00, which
amount, once in their possession, with
intend to defraud, they willfully, unlawfully
and feloniously misappropriated, misapplied
and converted the same to their own
personal use and benefit, to the damage and
prejudice of said ROGELIO A. LEGASPI,
JR. in the aforesaid amount of P57,000.00
Philippine Currency.
Contrary to law."
The other four (4) Informations
for estafa involve the following
complainants and amounts:
1. DENNIS T. DIMAANO P66,520.00
2. EVELYN V. ESTACIO P88,520.00
3. SOLEDAD B. ATLE P69,520.00
4. LUZ T. MINKAY P69,520.00
3

Only appellant was apprehended and
brought to trial, the other accused remained
at large. Upon arraignment, appellant
pleaded not guilty and trial on the merits
ensued. After joint trial, on May 14, 2004,
the RTC rendered judgment convicting
appellant of all the charges:
WHEREFORE, the prosecution having
established the GUILT of accused Beth
Temporada BEYOND REASONABLE
DOUBT, judgment is hereby rendered
CONVICTING the said accused, as
principal of the offenses charged and she is
sentenced to suffer the penalty of LIFE
IMPRISONMENT and a fine of Five
Hundred Thousand Pesos (P500,000.00) for
illegal recruitment; and the indeterminate
penalty of four (4) years and two (2) months
of prision correctional as minimum, to nine
(9) years and one (1) day of prision mayor,
as maximum for the estafa committed
against complainant Rogelio A. Legaspi, Jr.;
the indeterminate penalty of four (4) years
and two (2) months of prision correctional
as minimum to ten (10) years and one day of
prision mayor as maximum each for
the estafas committed against complainants,
Dennis Dimaano, Soledad B. Atte and Luz
T. Minkay; and the indeterminate penalty of
four (4) years and two (2) months of prision
correctional as minimum, to eleven (11)
years and one (1) day of prision mayor as
maximum for theestafa committed against
Evelyn Estacio.
The accused is also ordered to pay jointly
and severally the complainants actual
damages as follows:
1. Rogelio A. Legaspi Jr. P57,600.00
2. Dennis T. Dimaano 66,520.00
3. Evelyn V. Estacio 88,520.00
4. Soledad B. Atte 66,520.00
5. Luz T. Minkay 69,520.00
SO ORDERED.
4

In accordance with the Courts ruling
in People v. Mateo,
5
this case was referred
to the CA for intermediate review. On
February 24, 2006, the CA affirmed with
modification the Decision of the RTC:
WHEREFORE, with MODIFICATION to
the effect that in Criminal Cases Nos. 02-
208373, 02-208375, & 02-208376, appellant
is sentenced to suffer the indeterminate
penalty of six (6) years of prision
correccional maximum, as minimum, to ten
(10) years and one (1) day of prision mayor
maximum, as maximum; and in Criminal
Case No. 02-208374, she is sentenced to
suffer the indeterminate penalty of eight (8)
years and one (1) day of prision mayor
medium, as minimum, to twelve (12) years
and one (1) day of reclusion temporal
minimum, as maximum, the appealed
decision is AFFIRMED in all other
respects.
6

Before this Court, appellant ascribes the
lone error that the trial court gravely erred in
finding her guilty of illegal recruitment and
five (5) counts of estafa despite the
insufficiency of the evidence for the
prosecution.
We affirm the Decision of the CA, except as
to the indeterminate penalties imposed for
the five (5) counts ofestafa.
Article 13(b) of the Labor Code defines
recruitment and placement thusly:
ART. 13. Definitions. x x x
(b) "Recruitment and placement" refers to
any act of canvassing, enlisting, contracting,
transporting, utilizing, hiring or procuring
workers, and includes referrals, contract
services, promising or advertising for
employment, locally or abroad, whether for
profit or not: Provided, That any person or
entity which, in any manner, offers or
promises for a fee, employment to two or
more persons shall be deemed engaged in
recruitment and placement.
To constitute illegal recruitment in large
scale, three (3) elements must concur: (a) the
offender has no valid license or authority
required by law to enable him to lawfully
engage in recruitment and placement of
workers; (b) the offender undertakes any of
the activities within the meaning of
"recruitment and placement" under Article
13(b) of the Labor Code, or any of the
prohibited practices enumerated under
Article 34 of the said Code (now Section 6
of R.A. No. 8042); and, (c) the offender
committed the same against three (3) or
more persons, individually or as a group.
7

In the case at bar, the foregoing elements are
present. Appellant, in conspiracy with her
co-accused, misrepresented to have the
power, influence, authority and business to
obtain overseas employment upon payment
of a placement fee which was duly collected
from complainants Rogelio Legaspi, Dennis
Dimaano, Evelyn Estacio, Soledad Atle and
Luz Minkay. Further, the
certification
8
issued by the Philippine
Overseas Employment Administration
(POEA) and the testimony of Ann Abastra
Abas, a representative of said government
agency, established that appellant and her
co-accused did not possess any authority or
license to recruit workers for overseas
employment. And, since there were five (5)
victims, the trial court correctly found
appellant liable for illegal recruitment in
large scale.
Appellant insists that she was merely an
employee of ATTC and was just "echoing
the requirement of her employer." She
further argues that the prosecution failed to
prove that she was aware of the latters
illegal activities and that she actively
participated therein. In essence, she
controverts the factual findings of the lower
courts.
The contention is untenable.
An employee of a company or corporation
engaged in illegal recruitment may be held
liable as principal, together with his
employer, if it is shown that he actively and
consciously participated in illegal
recruitment.
9
Appellant actively took part in
the illegal recruitment of private
complainants. Rogelio Legaspi testified that
after introducing herself as the General
Manager of ATTC, appellant persuaded him
to apply as a technician in Singapore and
assured him that there was a job market
therefor. In addition to the placement fee of
P35,000.00 which he paid to accused
Bernadette Miranda, he also handed the
amount of P10,000.00 to appellant who, in
turn, issued him a receipt for the total
amount of P45,000.00. Upon the other hand,
Soledad Atle and Luz Minkay, who applied
as factory workers in Hongkong through co-
accused, Emily Salagonos, declared that it
was appellant who briefed them on the
requirements for the processing of their
application, and assured them and Dennis
Dimaano of immediate deployment for jobs
abroad. For her part, Evelyn Estacio testified
that aside from the placement fee of
P40,000.00 that she paid to co-accused
"Baby" Robles in connection with her
purported overseas employment, she also
gave appellant P10,000.00 for which she
was issued a receipt for the amount of
P5,000.00.
The totality of the evidence, thus,
established that appellant acted as an
indispensable participant and effective
collaborator of her co-accused in the illegal
recruitment of complainants. As aptly found
by the CA:
Without doubt, all the acts of appellant,
consisting of introducing herself to
complainants as general manager of ATTC,
interviewing and entertaining them, briefing
them on the requirements for deployment
and assuring them that they could leave
immediately if they paid the required
amounts, unerringly show unity of purpose
with those of her co-accused in their scheme
to defraud private complainants through
false promises of jobs abroad. There being
conspiracy, appellant shall be equally liable
for the acts of her co-accused even if she
herself did not personally reap the fruits of
their execution. We quote with approval the
trial courts findings on the matter:
"xxx It is clear that said accused conspired
with her co-accused Rosemarie "Baby"
Robles, Bernadette M. Miranda, Nenita
Catacotan, and Jojo Resco in convincing
complainants xxx to apply for overseas jobs
and giving complainants Soledad Atle, Luz
Minkay and Dennis Dimaano guarantee that
they would be hired as factory workers in
Hongkong, complainant Rogelio Legaspi, as
Technician in Singapore and Evelyn Estacio
as quality controller in a factory in
Hongkong, despite the fact that the accused
was not licensed to do so.
It should be noted that all the accused were
connected with the Alternative Travel and
Tours Corporation (ATTC). Accused Beth
Temporada introduced herself as ATTCs
General Manager. Saod accused was also
the one who received the P10,000.00 given
by complainant Rogelio Legaspi, Jr. and the
P10,000.00 given by complainant Evelyn
Estacio as payment for their visa and plane
ticket, respectively."
10

Consequently, the defense of appellant that
she was not aware of the illegal nature of the
activities of her co-accused cannot be
sustained. Besides, even
assuming arguendo that appellant was
indeed unaware of the illegal nature of said
activities, the same is hardly a defense in the
prosecution for illegal recruitment.
Under The Migrant Workers and Overseas
Filipinos Act of 1995, a special law, the
crime of illegal recruitment in large scale
is malum prohibitum and not malum in
se.
11
Thus, the criminal intent of the accused
is not necessary and the fact alone that the
accused violated the law warrants her
conviction.
12

In the instant case, we find no reason to
depart from the rule that findings of fact of
the trial court on the credibility of witnesses
and their testimonies are generally accorded
great respect by an appellate court. The
assessment of credibility of witnesses is a
matter best left to the trial court because it is
in the position to observe that elusive and
incommunicable evidence of the witnesses
deportment on the stand while testifying,
which opportunity is denied to the appellate
courts.
13
Further, there is no showing of any
ill-motive on the part of the prosecution
witnesses in testifying against appellant.
Absent such improper motive, the
presumption is that they were not so
actuated and their testimony is entitled to
full weight and credit.
Section 7(b) of R.A. No. 8042 prescribes the
penalty of life imprisonment and a fine of
not less than P500,000.00 nor more than
P1,000,000.00 for the crime of illegal
recruitment in large scale or by a syndicate.
The trial court, therefore, properly meted the
penalty of life imprisonment and a fine of
P500,000.00 on the appellant.
Anent the conviction of appellant for five
(5) counts of estafa, we, likewise, affirm the
same. Well-settled is the rule that a person
convicted for illegal recruitment under the
Labor Code may, for the same acts, be
separately convicted for estafa under Article
315, par. 2(a) of the RPC.
14
The elements
of estafa are: (1) the accused defrauded
another by abuse of confidence or by means
of deceit; and (2) the offended party or a
third party suffered damage or prejudice
capable of pecuniary estimation.
15
The same
evidence proving appellants criminal
liability for illegal recruitment also
established her liability for estafa. As
previously discussed, appellant together
with her co-accused defrauded complainants
into believing that they had the authority and
capability to send complainants for overseas
employment. Because of these assurances,
complainants parted with their hard-earned
money in exchange for the promise of future
work abroad. However, the promised
overseas employment never materialized
and neither were the complainants able to
recover their money.
While we affirm the conviction for the five
(5) counts of estafa, we find, however, that
the CA erroneously computed the
indeterminate penalties therefor. The CA
deviated from the doctrine laid down
in People v. Gabres;
16
hence its decision
should be reversed with respect to the
indeterminate penalties it imposed. The
reversal of the appellate courts Decision on
this point does not, however, wholly
reinstate the indeterminate penalties
imposed by the trial court because the
maximum terms, as determined by the latter,
were erroneously computed and must
necessarily be rectified.
The prescribed penalty for estafa under
Article 315, par. 2(d) of the RPC, when the
amount defrauded exceeds P22,000.00,
is prisin correccional maximum to prisin
mayor minimum. The minimum term is
taken from the penalty next lower or
anywhere within prisin
correccional minimum and medium (i.e.,
from 6 months and 1 day to 4 years and 2
months). Consequently, the RTC correctly
fixed the minimum term for the
five estafa cases at 4 years and 2 months
of prisin correccional since this is within
the range of prisin correccional minimum
and medium.
On the other hand, the maximum term is
taken from the prescribed penalty of prisin
correccional maximum toprisin
mayor minimum in its maximum period,
adding 1 year of imprisonment for every
P10,000.00 in excess of P22,000.00,
provided that the total penalty shall not
exceed 20 years. However, the maximum
period of the prescribed penalty of prisin
correccional maximum to prisin
mayor minimum is not prisin
mayor minimum as apparently assumed by
the RTC. To compute the maximum period
of the prescribed penalty, prisin
correccionalmaximum to prisin
mayor minimum should be divided into
three equal portions of time each of which
portion shall be deemed to form one period
in accordance with Article 65
17
of the RPC.
Following this procedure, the maximum
period of prisin correccional maximum
to prisin mayor minimum is from 6 years,
8 months and 21 days to 8 years.
18
The
incremental penalty, when proper, shall thus
be added to anywhere from 6 years, 8
months and 21 days to 8 years, at the
discretion of the court.
19

In computing the incremental penalty, the
amount defrauded shall be subtracted by
P22,000.00, and the difference shall be
divided by P10,000.00. Any fraction of a
year shall be discarded as was done starting
with the case of People v. Pabalan
20
in
consonance with the settled rule that penal
laws shall be construed liberally in favor of
the accused. The doctrine enunciated
in People v. Benemerito
21
insofar as the
fraction of a year was utilized in computing
the total incremental penalty should, thus, be
modified. In accordance with the above
procedure, the maximum term of the
indeterminate sentences imposed by the
RTC should be as follows:
In Criminal Case No. 02-208372, where the
amount defrauded was P57,600.00, the RTC
sentenced the accused to an indeterminate
penalty of 4 years and 2 months of prisin
correccional as minimum, to 9 years and 1
day ofprisin mayor as maximum. Since the
amount defrauded exceeds P22,000.00 by
P35,600.00, 3 years shall be added to the
maximum period of the prescribed penalty
(or added to anywhere from 6 years, 8
months and 21 days to 8 years, at the
discretion of the court). The lowest
maximum term, therefore, that can be
validly imposed is 9 years, 8 months and 21
days of prisin mayor, and not 9 years and 1
day of prisin mayor.
In Criminal Case Nos. 02-208373, 02-
208375, and 02-208376, where the amounts
defrauded were P66,520.00, P69,520.00, and
P69,520.00, respectively, the accused was
sentenced to an indeterminate penalty of 4
years and 2 months of prisin
correccional as minimum, to 10 years and 1
day of prisin mayor as maximum for each
of the aforesaid three estafa cases. Since the
amounts defrauded exceed P22,000.00 by
P44,520.00, P47,520.00, and P47,520.00,
respectively, 4 years shall be added to the
maximum period of the prescribed penalty
(or added to anywhere from 6 years, 8
months and 21 days to 8 years, at the
discretion of the court). The lowest
maximum term, therefore, that can be
validly imposed is 10 years, 8 months and
21 days of prisin mayor, and not 10 years
and 1 day of prisin mayor.
Finally, in Criminal Case No. 02-208374,
where the amount defrauded was
P88,520.00, the accused was sentenced to an
indeterminate penalty of 4 years and 2
months of prisin correccional as minimum,
to 11 years and 1 day of prisin mayor as
maximum. Since the amount defrauded
exceeds P22,000.00 by P66,520.00, 6 years
shall be added to the maximum period of the
prescribed penalty (or added to anywhere
from 6 years, 8 months and 21 days to 8
years, at the discretion of the court). The
lowest maximum term, therefore, that can be
validly imposed is 12 years, 8 months and
21 days of reclusin temporal, and not 11
years and 1 day of prisin mayor.
Response to the dissent.
In the computation of the indeterminate
sentence for estafa under Article 315, par.
2(a) of the Revised Penal Code (RPC), the
Court has consistently followed the doctrine
espoused in Pabalan and more fully
explained in Gabres.The dissent argues that
Gabres should be reexamined and
abandoned.
We sustain Gabres.
I.
The formula proposed in the Dissenting
Opinion of Mr. Justice Ruben T.
Reyes, i.e., the maximum term shall first be
computed by applying the incremental
penalty rule, and thereafter the minimum
term shall be determined by descending one
degree down the scale of penalties from the
maximum term, is a novel but erroneous
interpretation of the ISL in relation to
Article 315, par. 2(a) of the RPC. Under this
interpretation, it is not clear how the
maximum and minimum terms shall be
computed. Moreover, the legal justification
therefor is not clear because the meaning of
the terms "penalty," "prescribed penalty,"
"penalty actually imposed," "minimum
term," "maximum term," "penalty next
lower in degree," and "one degree down the
scale of penalties" are not properly set out
and are, at times, used interchangeably,
loosely and erroneously.
For purposes of this discussion, it is
necessary to first clarify the meaning of
certain terms in the sense that they will be
used from here on. Later, these terms shall
be aligned to what the dissent appears to be
proposing in order to clearly address the
points raised by the dissent.
The RPC provides for an initial penalty as a
general prescription for the felonies defined
therein which consists of a range of period
of time. This is what is referred to as the
"prescribed penalty." For instance, under
Article 249
22
of the RPC, the prescribed
penalty for homicide is reclusin
temporal which ranges from 12 years and 1
day to 20 years of imprisonment. Further,
the Code provides for attending or
modifying circumstances which when
present in the commission of a felony affects
the computation of the penalty to be
imposed on a convict. This penalty, as thus
modified, is referred to as the "imposable
penalty." In the case of homicide which is
committed with one ordinary aggravating
circumstance and no mitigating
circumstances, the imposable penalty under
the RPC shall be the prescribed penalty in its
maximum period. From this imposable
penalty, the court chooses a single fixed
penalty (also called a straight penalty) which
is the "penalty actually imposed" on a
convict, i.e., the prison term he has to serve.
Concretely, in U.S. v. Saadlucap,
23
a pre-
ISL case, the accused was found guilty of
homicide with a prescribed penalty
of reclusin temporal. Since there was one
ordinary aggravating circumstance and no
mitigating circumstances in this case, the
imposable penalty is reclusin temporal in
its maximum period, i.e., from 17 years, 4
months and 1 day to 20 years. The court
then had the discretion to impose any prison
term provided it is within said period, so that
the penalty actually imposed on the accused
was set at 17 years, 4 months and 1 day
ofreclusin temporal,
24
which is a single
fixed penalty, with no minimum or
maximum term.
With the passage of the ISL, the law
created a prison term which consists of a
minimum and maximum term called the
indeterminate sentence.
25
Section 1 of the
ISL provides
SECTION 1. Hereafter, in imposing a prison
sentence for an offense punished by the
Revised Penal Code, or its amendments, the
court shall sentence the accused to an
indeterminate sentence the maximum term
of which shall be that which, in view of the
attending circumstances, could be properly
imposed under the rules of said Code, and
the minimum which shall be within the
range of the penalty next lower to that
prescribed by the Code for the offense; x x
x.
Thus, the maximum term is that which, in
view of the attending circumstances, could
be properly imposed under the RPC. In other
words, the penalty actually imposed under
the pre-ISL regime became the maximum
term under the ISL regime. Upon the other
hand, the minimum term shall be within the
range of the penalty next lower to the
prescribed penalty. To illustrate, if the case
of Saadlucap was decided under the ISL
regime, then the maximum term would be
17 years, 4 months and 1 day of reclusin
temporal and the minimum term could be
anywhere within the range of prisin
mayor (6 years and 1 day to 12 years) which
is the penalty next lower to reclusin
temporal. Consequently, an indeterminate
sentence of 10 years of prisin mayor as
minimum to 17 years, 4 months and 1 day
of reclusin temporal as maximum could
have possibly been imposed.
If we use the formula as proposed by the
dissent, i.e., to compute the minimum term
based on the maximum term after the
attending or modifying circumstances are
considered, the basis for computing the
minimum term, under this interpretation, is
the imposable penalty
26
as hereinabove
defined. This interpretation is at odds with
Section 1 of the ISL which clearly states that
the minimum of the indeterminate sentence
shall be "within the range of the penalty next
lower to that prescribed by the Code for the
offense." Consequently, the basis for fixing
the minimum term is the prescribed
penalty,
27
and not the imposable penalty.
In People v. Gonzales,
28
the Court held that
the minimum term must be based on the
penalty prescribed by the Code for the
offense "without regard to circumstances
modifying criminal liability."
29
The
Gonzales ruling that the minimum term
must be based on the prescribed penalty
"without regard to circumstances modifying
criminal liability" is only a restatement of
Section 1 of the ISL that the minimum term
shall be taken from within the range of the
penalty next lower to the prescribed penalty
(and from nowhere else).
30

Further, the dissent proceeds from the
erroneous premise that its so-called "regular
formula" has generally been followed in
applying the ISL. To reiterate, according to
the dissent, the "regular formula" is
accomplished by first determining the
maximum term after considering all the
attending circumstances; thereafter, the
minimum term is arrived at by going one
degree down the scale from the maximum
term. As previously discussed, this
essentially means, using the terms as earlier
defined, that the minimum term shall be
taken from the penalty next lower to the
imposable penalty (and not the prescribed
penalty.) In more concrete terms and using
the previous example of homicide with one
ordinary aggravating circumstance, this
would mean that the minimum term for
homicide will no longer be based
on reclusin temporal (i.e., the prescribed
penalty for homicide) but reclusin
temporal in its maximum period (i.e., the
imposable penalty for homicide with one
ordinary aggravating circumstance) so much
so that the minimum term shall be taken
from reclusin temporal in its medium
period (and no longer from prisin mayor)
because this is the penalty next lower
to reclusin temporal in its maximum
period. The penalty from which the
minimum term is taken is, thus, significantly
increased. From this example, it is not
difficult to discern why this interpretation
radically departs from how the ISL has
generally been applied by this Court. The
dissents "regular formula" is, therefore,
anything but regular.
In fine, the "regular formula" espoused by
the dissent deviates from the ISL and
established jurisprudence and is, thus,
tantamount to judicial legislation.
II.
There is no absurdity or injustice in fixing or
"stagnating" the minimum term within the
range of prisin correccionalminimum and
medium (i.e., from 6 months and 1 day to 4
years and 2 months). Preliminarily, it must
be emphasized that the minimum term taken
from the aforementioned range of penalty
need not be the same for every case
of estafa when the amount defrauded
exceeds P12,000.00. In People v.
Ducosin,
31
the Court provided some
guidelines in imposing the minimum term
from the range of the penalty next lower to
the prescribed penalty:
We come now to determine the "minimum
imprisonment period" referred to in Act No.
4103. Section 1 of said Act provides that
this "minimum which shall not be less than
the minimum imprisonment period of the
penalty next lower to that prescribed by said
Code for the offense."
32
We are here upon
new ground. It is in determining the
"minimum" penalty that Act No. 4103
confers upon the courts in the fixing of
penalties the widest discretion that the courts
have ever had. The determination of the
"minimum" penalty presents two aspects:
first, the more or less mechanical
determination of the extreme limits of the
minimum imprisonment period; and second,
the broad question of the factors and
circumstances that should guide the
discretion of the court in fixing the
minimum penalty within the ascertained
limits.
x x x x
We come now to the second aspect of the
determination of the minimum penalty,
namely, the considerations which should
guide the court in fixing the term or duration
of the minimum period of imprisonment.
Keeping in mind the basic purpose of the
Indeterminate Sentence Law "to uplift and
redeem valuable human material, and
prevent unnecessary and excessive
deprivation of personal liberty and economic
usefulness" (Message of the Governor-
General, Official Gazette No. 92, vol.
XXXI, August 3, 1933), it is necessary to
consider the criminal, first, as an individual
and, second, as a member of society. This
opens up an almost limitless field of
investigation and study which it is the duty
of the court to explore in each case as far as
is humanly possible, with the end in view
that penalties shall not be standardized but
fitted as far as is possible to the individual,
with due regard to the imperative necessity
of protecting the social order.
Considering the criminal as an individual,
some of the factors that should be
considered are: (1) His age, especially with
reference to extreme youth or old age; (2)
his general health and physical condition;
(3) his mentality, heredity and personal
habits; (4) his previous conduct,
environment and mode of life (and criminal
record if any); (5) his previous education,
both intellectual and moral; (6) his
proclivities and aptitudes for usefulness or
injury to society; (7) his demeanor during
trial and his attitude with regard to the crime
committed; (8) the manner and
circumstances in which the crime was
committed; (9) the gravity of the offense
(note that section 2 of Act No. 4103 excepts
certain grave crimes this should be kept in
mind in assessing the minimum penalties for
analogous crimes).
In considering the criminal as a member of
society, his relationship, first, toward his
dependents, family and associates and their
relationship with him, and second, his
relationship towards society at large and the
State are important factors. The State is
concerned not only in the imperative
necessity of protecting the social
organization against the criminal acts of
destructive individuals but also in redeeming
the individual for economic usefulness and
other social ends. In a word, the
Indeterminate Sentence Law aims to
individualize the administration of our
criminal law to a degree not heretofore
known in these Islands. With the foregoing
principles in mind as guides, the courts can
give full effect to the beneficent intention of
the Legislature.
33

Admittedly, it is possible that the court,
upon application of the guidelines
in Ducosin, will impose the same minimum
term to one who commits
an estafa involving P13,000.00 and another
involving P130 million. In fact, to a lesser
degree, this is what happened in the instant
case where the trial court sentenced the
accused to the same minimum term of 4
years and 2 months of prisin
correccional in Criminal Case Nos. 02-
208372, 02-208373, 02-208375, 02-208376,
and 02-208374 where the amounts
defrauded were P57,600.00, P66,520.00,
P69,520.00, P69,520.00 and P88,520.00,
respectively. However, there is no absurdity
and injustice for two reasons.
One, while it is possible that the minimum
term imposed by a court would be the same,
the maximum term would be greater for the
convict who committed estafa involving
P130 million (which would be 20 years
of reclusion temporal) than the convict who
swindled P13,000.00 (which could be
anywhere from prisin
correccional maximum to prisin
mayor minimum or from 4 years, 2 months
and 1 day to 8 years).
34
Assuming that both
convicts qualify for parole after serving the
same minimum term, the convict sentenced
to a higher maximum term would carry a
greater "burden" with respect to the length
of parole surveillance which he may be
placed under, and the prison term to be
served in case he violates his parole as
provided for in Sections 6
35
and 8
36
of the
ISL. Under Section 6, the convict shall be
placed under a period of surveillance
equivalent to the remaining portion of the
maximum sentence imposed upon him or
until final release and discharge by the
Board of Pardon and Paroles. Further, the
convict with the higher maximum term
would have to serve a longer period upon his
re-commitment in prison in case he violates
his parole because he would have to serve
the remaining portion of the maximum term,
unless the Board of Pardon and Paroles
shall, in its discretion, grant a new parole to
the said convict as provided for in Section 8.
Although the differences in treatment are in
the nature of potential liabilities, to this
limited extent, the ISL still preserves the
greater degree of punishment in the RPC for
a convict who commits estafa involving a
greater amount as compared to one who
commits estafa involving a lesser
amount. Whether these differences in
treatment are sufficient in substance and
gravity involves a question of wisdom and
expediency of the ISL that this Court
cannot delve into.
Two, the rule which provides that the
minimum term is taken from the range of the
penalty next lower to the prescribed penalty
is, likewise, applicable to other offenses
punishable under the RPC. For instance, the
minimum term for an accused guilty of
homicide with one generic mitigating
circumstance vis--vis an accused guilty of
homicide with three ordinary aggravating
circumstances would both be taken
from prisin mayor the penalty next lower
to eclusion temporal. Evidently, the convict
guilty of homicide with three ordinary
aggravating circumstances committed a
more perverse form of the felony. Yet it is
possible that the court, after applying the
guidelines inDucosin, will impose upon the
latter the same minimum term as the
accused guilty of homicide with one generic
mitigating circumstance. This reasoning can
be applied mutatis mutandis to most of the
other offenses punishable under the RPC.
Should we then conclude that the ISL
creates absurd results for these offenses as
well?
In fine, what is perceived as absurd and
unjust is actually the intent of the
legislature to be beneficial to the convict in
order to "uplift and redeem valuable human
material, and prevent unnecessary and
excessive deprivation of personal liberty and
economic usefulness."
37
By the legislatures
deliberate design, the range of penalty from
which the minimum term is taken remains
fixed and only the range of penalty from
which the maximum term is taken changes
depending on the number and nature of the
attending circumstances. Again, the reason
why the legislature elected this mode of
beneficence to a convict revolves on
questions of wisdom and expediency which
this Court has no power to review. The
balancing of the States interests in
deterrence and retributive justice vis--vis
reformation and reintegration of convicts to
society through penal laws belongs to the
exclusive domain of the legislature.
III.
People v. Romero,
38
De Carlos v. Court of
Appeals,
39
Salazar v. People,
40
People v.
Dinglasan
41
and, by analogy, People v. Dela
Cruz
42
do not support the formula being
proposed by the dissent.
The instant case involves a violation of
Article 315, par. 2(a) of the RPC.
43
The
penalty for said violation is
ARTICLE 315. Swindling (Estafa). Any
person who shall defraud another by any of
the means mentioned hereinbelow shall be
punished by:
1st. The penalty of prisin correccional in
its maximum period to prisin mayor in its
minimum period, if the amount of the fraud
is over 12,000 pesos but does not exceed
22,000 pesos, and if such amount exceeds
the latter sum, the penalty provided in this
paragraph shall be imposed in its maximum
period, adding one year for each additional
10,000 pesos; but the total 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 prisin mayor or reclusin temporal,
as the case may be. x x x
In contrast, Romero, De
Carlos, and Salazar involved violations of
Article 315 of the RPC as amended by
Presidential Decree (P.D.) No.
1689
44
because: (1) the funds defrauded
were contributed by stockholders or
solicited by corporations/associations from
the general public, (2) the amount defrauded
was greater than P100,000.00, and (3)
the estafa was not committed by a syndicate.
Section 1 of P.D. No. 1689 provides
Sec. 1. Any person or persons who shall
commit estafa or other forms of swindling
as defined in Article 315 and 316 of the
Revised Penal Code, as amended, shall be
punished by life imprisonment to death if
the swindling (estafa) is committed by a
syndicate consisting of five or more persons
formed with the intention of carrying out the
unlawful or illegal act, transaction,
enterprise or scheme, and the defraudation
results in the misappropriation of money
contributed by stockholders, or members of
rural banks, cooperative, "samahang
nayon(s)", or farmers association, or of
funds solicited by corporations/associations
from the general public.
When not committed by a syndicate as
above defined, the penalty imposable
shall be reclusin temporal to reclusin
perpetua if the amount of the fraud
exceeds 100,000 pesos. (Emphasis supplied)
Since the prescribed penalty is reclusin
temporal to reclusin perpetua, the
minimum terms were taken fromprisin
mayor, which is the penalty next lower to
the prescribed penalty.
45
As can be seen,
these cases involved a different penalty
structure that does not make use of the
incremental penalty rule due to the
amendatory law. Thus, the comparison of
these cases with Gabres is improper.
Meanwhile, in Dinglasan, the felony
committed was estafa through bouncing
checks which is punishable under Article
315 par. 2(d) of the RPC as amended by
Republic Act (RA) No. 4885
46

Sec. 1. Section Two, Paragraph (d), Article
Three hundred fifteen of Act Numbered
Thirty-eight hundred and fifteen is hereby
amended to read as follows:
"Sec. 2. By means of any of the following
false pretenses or fraudulent acts executed
prior to or simultaneously with the
commission of the fraud:
"(d) By postdating a check, or issuing a
check in payment of an obligation when the
offender had no funds in the bank, or his
funds deposited therein were not sufficient
to cover the amount of the check. The
failure of the drawer of the check to deposit
the amount necessary to cover his check
within three (3) days from receipt of notice
from the bank and/or the payee or holder
that said check has been dishonored for lack
or insufficiency of funds shall be prima facie
evidence of deceit constituting false pretense
or fraudulent act."
and P.D. No. 818
47

Sec. 1. Any person who shall defraud
another by means of false pretenses or
fraudulent acts as defined in paragraph 2(d)
of Article 315 of the Revised Penal Code, as
amended by Republic Act No. 4885, shall be
punished by:
1st. The penalty of reclusin temporal if the
amount of the fraud is over 12,000 pesos but
not exceed 22,000 pesos, and if such amount
exceeds the latter sum, the penalty provided
in this paragraph shall be imposed in its
maximum period, adding one year for each
additional 10,000 pesos but the total penalty
which may be imposed shall in no case
exceed thirty years. In such cases, and in
connection with the accessory penalties
which may be imposed under the Revised
Penal Code, the penalty shall be
termedreclusin perpetua; x x x (Emphasis
supplied)
Here, the prescribed penalty of prisin
correccional maximum to prisin
mayor minimum was increased to reclusin
temporal by the amendatory law.
Consequently, the penalty next lower
to reclusin temporal is prisin mayor from
which the minimum term was taken. This is
the reason for the higher minimum term in
this case as compared to Gabres. In fact,
Dinglasan is consistent with Gabres
Since the face value of Check No. 029021,
for which appellant is criminally liable
for estafa, exceeds P22,000, the penalty
abovecited must be "imposed in its
maximum period, adding 1 year for each
additional P10,000." Pursuant to People vs.
Hernando, G.R. No. 125214, Oct. 28, 1999,
an indeterminate sentence shall be imposed
on the accused, computed favorably to him.
In this case, the indeterminate sentence
should be computed based on the maximum
period of reclusin temporal as maximum,
which is from 17 years, 4 months, and 1 day
to 20 years. The minimum period of the
sentence should be within the penalty
next lower in degree as provided in the
Revised Penal Code, i.e., prisin mayor,
which is from 6 years and 1 day to 12
years imprisonment. Considering that the
excess of the fraud committed, counting
from the base of P22,000, is only P4,400,
which is less than the P10,000 stated in P.D.
818, there is no need to add one year to the
maximum penalty abovecited.
48
(Emphasis
supplied)
As in Gabres, the penalty next lower
(i.e., prisin mayor) was determined without
considering in the meantime the effect of the
amount defrauded in excess of P22,000.00
on the prescribed penalty (i.e., reclusin
temporal).
Finally, Dela Cruz involved a case for
qualified theft. The prescribed penalty for
qualified theft is two degrees higher than
simple theft. Incidentally, the penalty
structure for simple theft
49
and estafa is
similar in that both felonies (1) requires that
the prescribed penalty be imposed in its
maximum period when the value of the
thing stolen or the amount defrauded, as the
case may be, exceeds P22,000.00, and (2)
provides for an incremental penalty of 1
year imprisonment for every P10,000.00 in
excess of P22,000.00. It should be pointed
out, however, that the prescribed penalty for
simple theft is prisin mayor minimum and
medium while in estafa it is lower atprisin
correccional maximum to prisin
mayor minimum.
Being two degrees higher, the prescribed
penalty for qualified theft is, thus, reclusin
temporal medium and maximum, while the
minimum term is taken from the range
of prisin mayor maximum to reclusin
temporalminimum, which is the penalty next
lower to reclusin temporal medium and
maximum. The penalty next lower to the
prescribed penalty is determined without
first considering the amount stolen in excess
of P22,000.00 consistent with Gabres. In
fact, Dela Cruz expressly cites Gabres
Applying the Indeterminate Sentence Law,
the minimum of the indeterminate penalty
shall be anywhere within the range of the
penalty next lower in degree to that
prescribed for the offense, without first
considering any modifying circumstance
attendant to the commission of the crime.
Since the penalty prescribed by law
is reclusin temporal medium and
maximum, the penalty next lower would
beprisin mayor in its maximum period
to reclusin temporal in its minimum
period. Thus, the minimum of the
indeterminate sentence shall be anywhere
within ten (10) years and one (1) day to
fourteen (14) years and eight (8) months.
The maximum of the indeterminate penalty
is that which, taking into consideration the
attending circumstances, could be properly
imposed under the Revised Penal
Code. Since the amount involved in the
present case exceeds P22,000.00, this
should be taken as analogous to
modifying circumstances in the
imposition of the maximum term of the
full indeterminate sentence, not in the
initial determination of the indeterminate
penalty. (citing Gabres) Thus, the maximum
term of the indeterminate penalty in this
case is the maximum period of reclusin
temporal medium and maximum, which
ranges from eighteen (18) years, two (2)
months, and twenty one (21) days to twenty
(20) years, as computed pursuant to Article
65, in relation to Article 64 of the Revised
Penal Code.
50
(Emphasis supplied)
Clearly, none of these cases supports the
Dissenting Opinions thesis that the
minimum term should be computed based
on the maximum term. Quite the
contrary, Dinglasan and Dela Cruz are
consistent with Gabres.
IV.
The argument that the incremental penalty
rule should not be considered as analogous
to a modifying circumstance stems from the
erroneous interpretation that the "attending
circumstances" mentioned in Section 1 of
the ISL are limited to those modifying
circumstances falling within the scope of
Articles 13 and 14 of the RPC. Section 1 of
the ISL is again quoted below
SECTION 1. Hereafter, in imposing a prison
sentence for an offense punished by the
Revised Penal Code, or its amendments, the
court shall sentence the accused to an
indeterminate sentence the maximum term
of which shall be that which, in view of the
attending circumstances, could be
properly imposed under the rules of said
Code, and the minimum which shall be
within the range of the penalty next lower to
that prescribed by the Code for the offense;
x x x (Emphasis supplied)
The plain terms of the ISL show that the
legislature did not intend to limit "attending
circumstances" as referring to Articles 13
and 14 of the RPC. If the legislature
intended that the "attending circumstances"
under the ISL be limited to Articles 13 and
14, then it could have simply so stated. The
wording of the law clearly permits other
modifying circumstances outside of Articles
13 and 14 of the RPC to be treated as
"attending circumstances" for purposes of
the application of the ISL, such as quasi-
recidivism under Article 160
51
of the RPC.
Under this provision, "any person who shall
commit a felony after having been convicted
by final judgment, before beginning to serve
such sentence, or while serving the same,
shall be punished by the maximum period of
the penalty prescribed by law for the new
felony." This circumstance has been
interpreted by the Court as a special
aggravating circumstance where the penalty
actually imposed is taken from the
prescribed penalty in its maximum period
without regard to any generic mitigating
circumstances.
52
Since quasi-recidivism is
considered as merely a special aggravating
circumstance, the penalty next lower in
degree is computed based on the prescribed
penalty without first considering said special
aggravating circumstance as exemplified
in People v. Manalo
53
and People v.
Balictar.
54

The question whether the incremental
penalty rule is covered within the letter and
spirit of "attending circumstances" under the
ISL was answered in the affirmative by the
Court in Gabres when it ruled therein that
the incremental penalty rule is analogous to
a modifying circumstance.
Article 315 of the RPC pertinently provides

ARTICLE 315. Swindling (Estafa). Any
person who shall defraud another by any of
the means mentioned hereinbelow shall be
punished by:
1st. The penalty of prisin correccional in
its maximum period to prisin mayor in its
minimum period, if the amount of the fraud
is over 12,000 pesos but does not exceed
22,000 pesos, and if such amount exceeds
the latter sum, the penalty provided in this
paragraph shall be imposed in its maximum
period, adding one year for each additional
10,000 pesos; but the total 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 prisin mayor or reclusin temporal,
as the case may be. x x x
Under Gabres, prisin
correccional maximum to prisin
mayor minimum is the prescribed
penalty
55
for estafa when the amount
defrauded exceeds P22,000.00. An amount
defrauded in excess of P22,000.00 is
effectively considered as a special
aggravating circumstance in the sense that
the penalty actually imposed shall be taken
from the prescribed penalty in its maximum
period without regard to any generic
mitigating circumstances. Consequently, the
penalty next lower in degree is still based on
the prescribed penalty without in the
meantime considering the effect of the
amount defrauded in excess of P22,000.00.
What is unique, however, with the afore-
quoted provision is that when the amount
defrauded is P32,000.00 or more, the
prescribed penalty is not only imposed in its
maximum period but there is imposed an
incremental penalty of 1 year imprisonment
for every P10,000.00 in excess of
P22,000.00, provided that the total penalty
which may be imposed shall not exceed 20
years. This incremental penalty rule is a
special rule applicable toestafa and theft. In
the case of estafa, the incremental penalty is
added to the maximum period of the
prescribed penalty (or to anywhere from 6
years, 8 months and 21 days to 8 years) at
the discretion of the court, in order to arrive
at the penalty actually imposed (i.e., the
maximum term, within the context of the
ISL).
This unique characteristic of the incremental
penalty rule does not pose any obstacle to
interpreting it as analogous to a modifying
circumstance, and, hence, falling within the
letter and spirit of "attending circumstances"
for purposes of the application of the ISL.
Under the wording of the ISL, "attending
circumstances" may be reasonably
interpreted as referring to such
circumstances that are applied in
conjunction with certain rules in the Code in
order to determine the penalty to be actually
imposed based on the prescribed penalty of
the Code for the offense. The incremental
penalty rule substantially meets this
standard. The circumstance is the amount
defrauded in excess of P22,0000.00 and the
incremental penalty rule is utilized to fix the
penalty actually imposed. At its core, the
incremental penalty rule is merely a
mathematical formula for computing the
penalty to be actually imposed using the
prescribed penalty as starting point. Thus, it
serves the same function of determining the
penalty actually imposed as the modifying
circumstances under Articles 13, 14, and
160 of the RPC, although the manner by
which the former accomplishes this function
differs with the latter. For this reason, the
incremental penalty rule may be considered
as merely analogous to modifying
circumstances. Besides, in case of doubt as
to whether the incremental penalty rule falls
within the scope of "attending
circumstances" under the ISL, the doubt
should be resolved in favor of
inclusion because this interpretation is more
favorable to the accused following the time-
honored principle that penal statutes are
construed strictly against the State and
liberally in favor of the accused.
56
Thus,
even if the Dissenting Opinions
interpretation is gratuitously conceded as
plausible, as between Gabres and the
dissents interpretation, Gabres should be
sustained since it is the interpretation more
favorable to the accused.
V.
The claim that the maximum term should
only be one degree away from the minimum
term does not make sense within the
meaning of "degrees" under the RPC
because the minimum and maximum
terms consist of single fixed penalties. At
any rate, the point seems to be that the
penalty from which the minimum term is
taken should only be one degree away from
the penalty from which the maximum term
is taken.
As a general rule, the application of
modifying circumstances, the majority being
generic mitigating and ordinary aggravating
circumstances, does not result to a
maximum term fixed beyond the prescribed
penalty. At most, the maximum term is
taken from the prescribed penalty in its
maximum period. Since the maximum term
is taken from the prescribed penalty and the
minimum term is taken from the next lower
penalty, then, in this limited sense, the
difference would naturally be only one
degree. Concretely, in the case of homicide
with one ordinary aggravating circumstance,
the maximum term is taken from reclusin
temporal in its maximum period which is
within the prescribed penalty of reclusin
temporal, while the minimum term is taken
from prisin mayor which is the penalty
next lower to reclusin temporal; hence, the
one-degree difference observed by the
dissent.
In comparison, under the incremental
penalty rule, the maximum term can exceed
the prescribed penalty. Indeed, at its
extreme, the maximum term can be as high
as 20 years of reclusin temporal while the
prescribed penalty remains at prisin
correccional maximum to prisin
mayor minimum, hence, the penalty next
lower to the prescribed penalty from which
the minimum term is taken remains at
anywhere within prisin
correccional minimum and medium, or from
6 months and 1 day to 4 years and 2 months.
In this sense, the incremental penalty rule
deviates from the afore-stated general rule.
57

However, it is one thing to say that,
generally, the penalty from which the
minimum term is taken is only one degree
away from the penalty from which the
maximum term is taken, and completely
another thing to claim that the penalty from
which the minimum term is
taken should only be one degree away from
the penalty from which the maximum term
is taken.
The one-degree difference is merely the
result of a general observation from the
application of generic mitigating and
ordinary aggravating circumstances in the
RPC in relation to the ISL. Nowhere does
the ISL refer to the one-degree difference as
an essential requisite of an "attending
circumstance." If the application of the
incremental penalty rule deviates from the
one-degree difference, this only means that
the law itself has provided for an exception
thereto. Verily, the one-degree difference is
a mere consequence of the generic
mitigating and ordinary aggravating
circumstances created by the legislature. The
difficulty of the dissent with the deviation
from its so-called one-degree difference rule
seems to lie with the inability to view these
"attending circumstances" as mere artifacts
or creations of the legislature. It does not
make sense to argue that the legislature
cannot formulate "attending circumstances"
that operate differently than these generic
mitigating and ordinary aggravating
circumstances, and that, expectedly, leads to
a different result from the one-degree
differencefor it would be to say that the
creator can only create one specie of
creatures. Further, it should be reasonably
assumed that the legislature was aware of
these special circumstances, like the
incremental penalty rule or privileged
mitigating circumstances, at the time it
enacted the ISL as well as the consequent
effects of such special circumstances on the
application of said law. Thus, for as long as
the incremental penalty rule is consistent
with the letter and spirit of "attending
circumstances" under the ISL, there is no
obstacle to its treatment as such.
VI.
Much has been said about the leniency,
absurdity and unjustness of the result
under Gabres; the need to adjust the
minimum term of the indeterminate penalty
to make it commensurate to the gravity of
the estafa committed; the deterrence effect
of a stiffer imposition of penalties; and a
host of other similar reasons to justify the
reversal ofGabres. However, all these relate
to policy considerations beyond the wording
of the ISL in relation to the RPC;
considerations that if given effect essentially
seek to rewrite the law in order to conform
to one notion (out of an infinite number of
such notions) of wisdom and efficacy, and,
ultimately, of justice and mercy.
This Court is not the proper forum for this
sort of debate. The Constitution forbids it,
and the principle of separation of powers
abhors it. The Court applies the law as it
finds it and not as how it thinks the law
should be. Not too long ago in the case
of People v. Veneracion,
58
this Court spoke
about the dangers of allowing ones personal
beliefs to interfere with the duty to uphold
the Rule of Law which, over a decade later,
once again assumes much relevance in this
case:
Obedience to the rule of law forms the
bedrock of our system of justice. If judges,
under the guise of religious or political
beliefs were allowed to roam unrestricted
beyond boundaries within which they are
required by law to exercise the duties of
their office, the law becomes meaningless. A
government of laws, not of men excludes the
exercise of broad discretionary powers by
those acting under its authority. Under this
system, judges are guided by the Rule of
Law, and ought "to protect and enforce it
without fear or favor," resist encroachments
by governments, political parties, or even
the interference of their own personal
beliefs.
59

VII.
Mr. Justice Adolfo S. Azcuna proposes an
interpretation of the incremental penalty rule
based on the phrases "shall be
termed prisin mayor or reclusin temporal,
as the case may be" and "for the purpose of
the other provisions of this Code" found in
the last sentence of said rule, viz:
ARTICLE 315. Swindling (Estafa). Any
person who shall defraud another by any of
the means mentioned hereinbelow shall be
punished by:
1st. The penalty of prisin correccional in
its maximum period to prisin mayor in its
minimum period, if the amount of the fraud
is over 12,000 pesos but does not exceed
22,000 pesos, and if such amount exceeds
the latter sum, the penalty provided in this
paragraph shall be imposed in its maximum
period, adding one year for each additional
10,000 pesos; but the total 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 prisin mayor or reclusin
temporal, as the case may be. x x x
(Emphasis supplied)
While this interpretation is
plausible, Gabres should still be sustained
because in construing penal statutes, as
between two reasonable
60
but contradictory
constructions, the one more favorable to the
accused should be upheld, which in this case
is Gabres. The reason for this rule is
elucidated in an eminent treatise on statutory
construction in this wise:
It is an ancient rule of statutory construction
that penal statutes should be strictly
construed against the government or parties
seeking to enforce statutory penalties and in
favor of the persons on whom penalties
are sought to be imposed. This simply
means that words are given their ordinary
meaning and that any reasonable doubt
about the meaning is decided in favor of
anyone subjected to a criminal statute.
This canon of interpretation has been
accorded the status of a constitutional rule
under principles of due process, not subject
to abrogation by statute.
The rule that penal statutes should be strictly
construed has several justifications based on
a concern for the rights and freedoms of
accused individuals. Strict construction can
assure fairness when courts understand it to
mean that penal statutes must give a clear
and unequivocal warning, in language
people generally understand, about actions
that would result in liability and the nature
of potential penalties. A number of courts
have said:
the rule that penal statutes are to be
strictly construed is a fundamental
principle which in our judgment will never
be altered. Why? Because the lawmaking
body owes the duty to citizens and subjects
of making unmistakably clear those acts for
the commission of which the citizen may
lose his life or liberty. Therefore, all the
canons of interpretation which apply to civil
statutes apply to criminal statutes, and in
addition there exists the canon [of strict
construction] . The burden lies on the
lawmakers, and inasmuch as it is within
their power, it is their duty to relieve the
situation of all doubts.
x x x x
Additionally, strict construction protects the
individual against arbitrary discretion by
officials and judges. As one judge noted:
"the courts should be particularly careful
that the bulwarks of liberty are not
overthrown, in order to reach an offender
who is, but perhaps ought not to be,
sheltered behind them."
But also, for a court to enforce a penalty
where the legislature has not clearly and
unequivocally prescribed it could result in
judicial usurpation of the legislative
function. One court has noted that the
reason for the rule is "to guard against the
creation, by judicial construction, of
criminal offenses not within the
contemplation of the legislature." Thus the
rule requires that before a person can be
punished his case must be plainly and
unmistakably within the statute sought to be
applied. And, so, where a statute is open to
more than one interpretation, it is strictly
construed against the state. Courts further
rationalize this application of the rule of
strict construction on the ground that it was
not the defendant in the criminal action who
caused ambiguity in the statute. Along these
same lines, courts also assert that since the
state makes the laws, they should be most
strongly construed against it.
61
(Emphasis
supplied; citations omitted)
Thus, in one case, where the statute was
ambiguous and permitted two reasonable
interpretations, the construction which
would impose a less severe penalty was
adopted.
62

WHEREFORE, the Decision of the Court
of Appeals is MODIFIED with respect to
the indeterminate penalties imposed on
appellant for the five (5) counts of estafa, to
wit:
(1) In Criminal Case No. 02-208372, the
accused is sentenced to an indeterminate
penalty of 4 years and 2 months of prisin
correccional as minimum, to 9 years, 8
months and 21 days of prisin mayor as
maximum.
(2) In Criminal Case Nos. 02-208373, 02-
208375, and 02-208376, the accused is
sentenced to an indeterminate penalty of 4
years and 2 months of prisin
correccional as minimum, to 10 years, 8
months and 21 days of prisin mayor as
maximum for each of the aforesaid
three estafa cases.
(3) In Criminal Case No. 02-208374, the
accused is sentenced to an indeterminate
penalty of 4 years and 2 months of prisin
correccional as minimum, to 12 years, 8
months and 21 days of reclusin temporal as
maximum.







THE PEOPLE OF THE PHILIPPINE
ISLANDS, plaintiff-appellee,
vs.
BASILIO DE JESUS Y
JAVIER, defendant-appellant.
Isabelo G. Reyes for appellant.
Office of the Solicitor-General Hilado for
appellee.

DIAZ, J .:
Basilio de Jesus y Javier was convicted by
the Court of First Instance of Manila in
criminal case No. 52270 of said court, of the
theft of an umbrella and a buri hat valued at
P2.65 committed, according to the
information, on April 28, 1936. He was
therein sentenced to one month and one day
of arresto mayor with the accessory
penalties, to indemnify Francisco Liwanag
in the sum of P2.50 representing the value of
the umbrella which was not recovered, and
being a habitual delinquent, the additional
penalty of two years, four months and one
day of prision correccional with the
corresponding accessory penalties was also
imposed upon him in conformity with the
provisions of subsection 5, paragraph (a), of
article 62 of the Revised Penal Code. Not
agreeing with said penalties he appealed
from the sentence undoubtedly for the
review of his case.
The appellant's counsel de oficio in this
instance, considering the appealed sentence
in accordance with law, recommends the
affirmance thereof in all respects in his short
brief.
Due to the amount involved, the theft
imputed to the appellant is punishable
with arresto mayor in its minimum and
medium periods the duration of which is
from one month and one day to four months
(art. 309, subsection 6, Revised Penal
Code); and the minimum period of said
penalty is from one month and one day to
two months. It appears therefrom that the
penalty questioned by the appellant is the
minimum period, as no other less penalty
could have been imposed upon him because
said penalty in itself already constitutes the
minimum limit under the law. The reasons
which prompted the lower court to be
lenient with the appellant were undoubtedly
his voluntary confession before the
prosecution presented its evidence, which
constitutes a mitigating circumstance (art.
13, subsection 7, Revised Penal Code), and
the apparent absence of all allegation in the
information of some aggravating
circumstance that may compensate said
mitigating circumstance (art. 63, rule 1,
Revised Penal Code).
The imposition of the additional penalty of
two years, four months and one day upon
the appellant is justified by his own
admission of guilt because the rule is well
settled in this jurisdiction that when one
pleads guilty of the crime imputed to him in
an information, it is understood that he
admits all the material facts alleged therein
(U. S.vs. Barba, 29 Phil., 206;
U.S. vs. Santiago, 35 Phil., 20), not
excluding those alleging his former
convictions of other crimes
(U.S. vs. Burlado, 42 Phil., 72); and in the
information filed against the appellant, it
was alleged:
That the said accused is a habitual
delinquent within the purview of rule 5 of
article 62 of the Revised Penal Code, he
having been convicted by final judgments of
competent courts of the following crimes:
On January 4, 1933, he was convicted of
theft and sentenced to one month and one
day of imprisonment, and on November 18,
1935, he was convicted of qualified theft
and sentenced to serve two months and one
day of imprisonment, the date of his last
release being January 10, 1936.
The Solicitor-General, taking advantage of
the allegation in the information that the
appellant is a habitual delinquent,
recommends that instead of affirming his
principal penalty of one month and one day
of arresto mayor, it be increased to the
minimum of the medium period of that
prescribed by law for his crime, or two
months and one day of arresto mayor,
considering the aggravating circumstance of
recidivism established but compensated by
the mitigating circumstance of voluntary
confession. His argument appears to be as
follows: Habitual delinquency necessarily
implies recidivism or former conviction, at
least more than once. The appellant having
admitted in his confession that he is a
habitual delinquent for having committed
theft for the third time within the period
prescribed by law, he must necessarily be
considered a recidivist. This naturally raises
the question whether or not in this case the
circumstance of recidivism can be and must
be twice taken into consideration against the
appellant, first as an aggravating
circumstance although compensated by
another mitigating circumstance, and second
as a qualifying circumstance or one inherent,
as the case may be, in habitual delinquency.
If such an opinion were sustained, would not
an injustice be committed against the
appellant by imposing two penalties upon
him, the principal and the additional, in a
period which must be determined by taking
into consideration one and the same fact or
circumstance, which is recidivism? There is
no express provision of law prohibiting it.
On the contrary, as to the principal penalty,
there is the rule that in cases in which the
penalty prescribed by law contains three
periods, the courts must take into
consideration, in the application of said
penalty, the aggravating mitigating
circumstances established at the trial if they
do not appear to be compensated by other
circumstances; and there is also the rule that
when only an aggravating circumstance is
present the former, that is the principal
penalty, must be imposed in its maximum
period (art. 64, Revised Penal Code) ; and
in People vs. Aguinaldo (47 Phil., 728), this
court has stated, and it is reiterated in People
vs. Melendrez (59 Phil., 154), that the
aggravating circumstance of recidivism,
even in cases of habitual delinquency,
should be taken into consideration in the
application of the principal penalty in the
corresponding period.
As to the additional penalty, if we must rely
upon the spirit and letter of the law, we
would say that the purpose of the latter in
establishing it was to prevent those who for
the second time or more commit the crimes
enumerated in the last paragraph of article
62 of the Revised Penal Code from relapsing
thereafter at least during the period fixed
thereby, as if to tell them: "If you relapse,
the penalty corresponding to your last
offense will be imposed upon you plus
another additional penalty ranging
from prision correccional in its medium and
maximum periods toprision mayor in its
maximum period and reclusion temporal in
its minimum period, according to your
recidivism, that is, the third, fourth, fifth or
more times."
When the law has prescribed the additional
penalty for habitual delinquency in a manner
susceptible of division into periods and has
enumerated it among the penalties that may
be imposed by incorporating it into the
Revised Penal Code, it was for no other
purpose than that all the circumstances
present in every case be taken into
consideration in order to avoid arbitrariness
in the determination of the period in which
said penalty should be imposed. It would be
arbitrary, in the absence of any
circumstance, to impose the maximum of
the additional penalty upon a habitual
delinquent, as it would also be arbitrary to
impose the minimum thereof upon him
when there are circumstances justifying its
application in the maximum period.
We should not lose sight of the fact that
when the Legislature incorporated the
provision relative to habitual delinquency
into the Revised Penal Code, it was aware
this, at least, is the presumption of law
that recidivism was, as it continues to be in
the majority of cases to this date, an
aggravating circumstance the effect of
which, as the name itself implies, is to
aggravate the criminal responsibility of the
delinquent. But unlike other circumstances,
as treachery, evident premeditation, sex,
craft, relationship, public position, dwelling,
not to mention several others so as not to be
tedious, which may be aggravating,
qualifying and inherent as the case may be,
recidivism is and can be nothing else but an
aggravating circumstance. This is the
general rule; but as such it certainly is not
without its exception as other general rules.
The exception is found in the case of
habitual delinquency, as recidivism is
precisely one of those that constitute and
give it existence, the other being former
conviction, but it is not necessary that both
be present at the same time.
Treachery, evident premeditation and
relationship are aggravating circumstances
in crimes against persons and when one of
them is present, for instance, in a case of
homicide, the crime committed ceases to be
homicide and becomes murder or parricide,
as the case may be. In such cases, that of the
said three circumstances which has raised
the crime committed from the category of
homicide to that of murder or parricide,
ceases to be an aggravating circumstance to
become a qualifying circumstance and, once
accepted as such, it cannot, by virtue of the
legal maxim non bis in idem be considered
as an aggravating circumstance at the same
time (U. S. vs. Estopia, 28 Phil., 97; U.
S. vs. Vitug, 17 Phil., 1; Decision of the
Supreme Court of Spain of November 13,
1871). So must recidivism be considered in
habitual delinquency. We have taken it into
consideration in imposing the principal
penalty and we cannot again take it into
consideration in imposing the additional
penalty because inasmuch as recidivism is a
qualifying or inherent circumstance in
habitual delinquency, it cannot be
considered an aggravating circumstance at
the same time. Consequently, the additional
penalty to be imposed upon the appellant
must be the minimum of the prescribed by
law as, with the exception of recidivism, no
other circumstance or fact justifying the
imposition of said penalty in a higher period
has been present.
The proposition based on rules 1 and 2 of
article 62 of the Revised Penal Code, that if
recidivism is considered an inherent or
qualifying circumstance of habitual
delinquency it should not be taken into
account in the imposition of the principal
penalty, seems to us untenable because it is
based upon the erroneous assumption that
the habitual delinquency is a crime. It is
simply a fact or circumstance which, if
present in a given case with the other
circumstances enumerated in rule 5 of said
article, gives rise to the imposition of the
additional penalties therein prescribed. This
is all the more true because the law itself
clearly provides that the habitual delinquent
must be sentenced to the penalty provided
by law for his last crime in addition to the
additional penalty he deserves.lwphi1.nt
In view of the foregoing facts and
considerations and furthermore taking into
account the provisions of article 62, rule 5,
paragraph (a), of the Revised Penal Code,
we deem it clear that the appellant deserves
the additional penalty imposed by the lower
court upon him. The penalty prescribed by
said rule is prision correccional in its
medium and maximum periods, or from two
years, four months and one day to six years.
What was imposed upon the appellant is the
minimum of said penalty and he has
absolutely no reason to complain because
after all he can not be exempt from the
additional penalty by reason of his
admission at the trial that he is a habitual
delinquent, having committed the crime of
theft for the third time before the expiration
of ten years from the commission of his
former crime.
In resume we hold that the principal penalty
of the appellant must be two months and one
day of arresto mayor. We therefore modify
the appealed sentence in this sense and so
modified it is affirmed in all other respects,
with the costs to the appellant. So ordered


PEOPLE OF THE
PHILIPPINES, plaintiff-appellee, vs. LEO
ECHEGARAY y PILO, accused-
appellant.
D E C I S I O N
PER CURIAM:
Amidst the endless debates on whether or
not the reimposition of the death penalty is
indeed a deterrent as far as the commission
of heinous crimes is concerned and while
the attendant details pertaining to the
execution of a death sentence remain as yet
another burning issue, we are tasked with
providing a clear-cut resolution of whether
or not the herein accused-appellant deserves
to forfeit his place in human society for the
infliction of the primitive and bestial act of
incestuous lust on his own blood.
Before us for automatic review is the
judgment of conviction, dated September 7,
1994, for the crime of Rape, rendered after
marathon hearing by the Regional Trial
Court of Quezon City, Branch 104, the
dispositive portion of which reads:
"WHEREFORE, judgment is hereby
rendered finding accused LEO
ECHEGARAY Y PILO guilty beyond
reasonable doubt of the crime of RAPE as
charged in the complaint, aggravated by the
fact that the same was committed by the
accused who is the father/stepfather of the
complainant, he is hereby sentenced to
suffer the penalty of DEATH, as provided
for under RA. No. 7659; to pay the
complainant Rodessa Echegaray the sum of
P50,000.00 as damages, plus all the
accessory penalties provided by law, without
subsidiary imprisonment in case of
insolvency, and to pay the costs."
[1]

We note, however, that the charge had been
formulated in this manner:
"C O M P L A I N T
The undersigned accuses LEO
ECHEGARAY Y PILO of the crime of
RAPE, committed as follows:
That on or about the month of April 1994, in
Quezon City, Philippines, the above-named
accused, by means of force and intimidation,
did then and there, wilfully, unlawfully and
feloniously have carnal knowledge of the
undersigned complainant his daughter, a
minor, 10 years of age, all against her will
and without her consent, to her damage and
prejudice.
CONTRARY TO LAW."
[2]

Upon being arraigned on August 1, 1994,
the accused-appellant, assisted by his
counsel de oficio, entered the plea of "not
guilty."
These are the pertinent facts of the case as
summarized by the Solicitor-General in his
brief:
"This is a case of rape by the father of his
ten-year old daughter.
Complainant RODESSA ECHEGARAY is a
ten-year old girl and a fifth-grader, born on
September 11, 1983. Rodessa is the eldest
of five siblings. She has three brothers aged
6, 5 and 2, respectively, and a 3-month old
baby sister. Her parents are Rosalie and Leo
Echegaray, the latter being the accused-
appellant himself. The victim lives with her
family in a small house located at No. 199
Fernandez St., Barangay San Antonio, San
Francisco Del Monte, Quezon City (pp. 5-9,
Aug. 9, 1994, TSN).
Sometime in the afternoon of April 1994,
while Rodessa was looking after her three
brothers in their house as her mother
attended a gambling session in another
place, she heard her father, the accused-
appellant in this case, order her brothers to
go out of the house (pp. 10-11, ibid.). As
soon as her brothers left, accused-appellant
Leo Echegaray approached Rodessa and
suddenly dragged her inside the room (p.
12, ibid). Before she could question the
appellant, the latter immediately removed
her panty and made her lie on the floor (p.
13, ibid.). Thereafter, appellant likewise
removed his underwear and immediately
placed himself on top of
Rodessa. Subsequently, appellant forcefully
inserted his penis into Rodessa's organ
causing her to suffer intense pain (pp. 14-
15, ibid.). While appellant was pumping on
her, he even uttered: 'Masarap ba, masarap
ba?' and to which Rodessa answered: 'Tama
na Papa, masakit' (p. 16, ibid.). Rodessa's
plea proved futile as appellant continued
with his act. After satisfying his bestial
instinct, appellant threatened to kill her
mother if she would divulge what had
happened. Scared that her mother would be
killed by appellant, Rodessa kept to herself
the ordeal she suffered. She was very afraid
of appellant because the latter, most of the
time, was high on drugs (pp. 17-
18, ibid.). The same sexual assault
happened up to the fifth time and this
usually took place when her mother was out
of the house (p. 19, ibid.). However, after
the fifth time, Rodessa decided to inform her
grandmother, Asuncion Rivera, who in turn
told Rosalie, Rodessa's mother. Rodessa
and her mother proceeded to the Barangay
Captain where Rodessa confided the sexual
assaults she suffered. Thereafter, Rodessa
was brought to the precinct where she
executed an affidavit (p. 21, ibid.). From
there, she was accompanied to the
Philippine National Police Crime Laboratory
for medical examination (p. 22, ibid.).
Rodessa testified that the said sexual
assaults happened only during the time when
her mother was pregnant. Rodessa added
that at first, her mother was on her
side. However, when appellant was
detained, her mother kept on telling her:
'Kawawa naman ang Tatay mo, nakakulong'
(pp. 39-40, ibid.).
When Rodessa was examined by the
medico-legal officer in the person of Dra.
Ma. Cristina B. Preyna,
[3]
the complainant
was described as physically on a non-virgin
state, as evidenced by the presence of
laceration of the hymen of said complainant
(TSN., Aug. 22,1995, pp. 8-9)."
[4]

On the other hand, the accused-appellant's
brief presents a different story:
"x x x the defense presented its first witness,
Rosalie Echegaray. She asserted that the
RAPE charge against the accused was only
the figment of her mother's dirty mind. That
her daughter's complaint was forced upon
her by her grandma and the answers in the
sworn statement of Rodessa were
coached. That the accusation of RAPE was
motivated by Rodessa's grandmother's greed
over the lot situated at the Madrigal Estate-
NHA Project, Barangay San Antonio, San
Francisco del Monte, Quezon City, which
her grandmother's paramour, Conrado
Alfonso gave to the accused in order to
persuade the latter to admit that Rodessa
executed an affidavit of desistance after it
turned out that her complaint of attempted
homicide was substituted with the crime of
RAPE at the instance of her mother. That
when her mother came to know about the
affidavit of desistance, she placed her
granddaughter under the custody of the
Barangay Captain. That her mother was
never a real mother to her.
She stated that her complaint against
accused was for attempted homicide as her
husband poured alcohol on her body and
attempted to burn her. She identified the
certification issued by the NHA and Tag No.
87-0393 (Exh. 2). That the Certification
based on the Masterlist (Exh. 3) indicates
that the property is co-owned by accused
and Conrado Alfonso. That Rodessa is her
daughter sired by Conrado Alfonso, the
latter being the paramour of her
mother. That Conrado Alfonso waived his
right and participation over the lot in favor
of the accused in consideration of the latter's
accepting the fact that he is the father of
Rodessa to simulate the love triangle and to
conceal the nauseating sex orgies from
Conrado Alfonso's real Wife.
Accused testified in his behalf and stated
that the grandmother of the complainant has
a very strong motive in implicating him to
the crime of RAPE since she was interested
to become the sole owner of a property
awarded to her live-in partner by the
Madrigal Estate-NHA Project. That he
could not have committed the imputed crime
because he considers Rodessa as his own
daughter. That he is a painter-contractor and
on the date of the alleged commission of the
crime, he was painting the house of one
Divina Ang of Barangay Vitalis, Paraaque,
Metro Manila (Exh 4). The travel time
between his work place to his residence is
three (3) hours considering the condition of
traffic. That the painting contract is
evidenced by a document denominated
'Contract of Services' duly accomplished
(see submarkings of Exh. 4). He asserted
that he has a big sexual organ which when
used to a girl 11 years old like Rodessa, the
said female organ will be 'mawawarak.' That
it is abnormal to report the imputed
commission of the crime to the grandmother
of the victim.
Accused further stated that her(sic) mother-
in-law trumped-up a charge of drug pushing
earlier and he pleaded guilty to a lesser
offense of using drugs. The decretal portion
of the judgment of conviction ordering the
accused to be confined at the Bicutan
Rehabilitation Center irked the grandmother
of Rodessa because it was her wish that
accused should be meted the death penalty.
Accused remain steadfast in his testimony
perorating the strong motive of Rodessa's
grandmother in implicating him in this
heinous crime because of her greed to
become the sole owner of that piece of
property at the National Housing Authority-
Madrigal Project, situated at San Francisco
del Monte, Quezon City, notwithstanding
rigid cross-examination. He asserted that
the imputed offense is far from his mind
considering that he treated Rodessa as his
own daughter. He categorically testified
that he was in his painting job site on the
date and time of the alleged commission of
the crime.
Mrs. Punzalan was presented as third
defense witness. She said that she is the
laundry woman and part time baby sitter of
the family of accused. That at one time, she
saw Rodessa reading sex books and the
Bulgar newspaper. That while hanging
washed clothes on the vacant lot she saw
Rodessa masturbating by tinkering her
private parts. The masturbation took
sometime.
This sexual fling of Rodessa were
corroborated by Silvestra Echegaray, the
fourth and last witness for the defense. She
stated that she tried hard to correct the
flirting tendency of Rodessa and that she
scolded her when she saw Rodessa viewing
an X-rated tape. Rodessa according to her
was fond of going with friends of ill-
repute. That (sic) she corroborated the
testimony of Mrs Punzalan by stating that
she herself saw Rodessa masturbating inside
the room of her house."
[5]

In finding the accused-appellant guilty
beyond reasonable doubt of the crime of
rape, the lower court dismissed the defense
of alibi and lent credence to the
straightforward testimony of the ten-year old
victim to whom no ill motive to testify
falsely against accused-appellant can be
attributed. The lower court likewise
regarded as inconsequential the defense of
the accused-appellant that the extraordinary
size of his penis could not have insinuated
itself into the victim's vagina and that the
accused is not the real father of the said
victim.
The accused-appellant now reiterates his
position in his attempt to seek a reversal of
the lower court's verdict through the
following assignment of errors:
1. THE LOWER COURT FAILED TO
APPRECIATE THE SINISTER MOTIVE
OF PRIVATE COMPLAINANT'S
GRANDMOTHER THAT PRECIPITATED
THE FILING OF THE CHARGE OF
RAPE, HENCE IT ERRED IN HOLDING
ACCUSED GUILTY AS CHARGED.
2. THE COURT BELOW OVERLOOKED
THE FACT THAT THE HEALED
LACERATIONS AT 3 AND 7 O'CLOCK
COULD NOT HAVE BEEN DUE TO THE
PUMPING OF THE PENIS OF ACCUSED
TO THE VAGINA OF PRIVATE
COMPLAINANT, HENCE IT ERRED IN
HOLDING THAT ACCUSED
COMMITTED THE CRIME CHARGED,
NOTWITHSTANDING VEHEMENT
DENIAL.
3. THE COURT A QUO WHIMSICALLY
IGNORED THE DEFENSE OF ALIBI
THAT ACCUSED WAS IN PARAAQUE
ON THE DATE AND TIME OF THE
IMPUTED CRIME HENCE, IT ERRED IN
HOLDING THAT ALIBI IS NOT
SUSTAINABLE IN THE CASE AT
BAR."
[6]

Considering that a rape charge, in the light
of the reimposition of the death penalty,
requires a thorough and judicious
examination of the circumstances relating
thereto, this Court remains guided by the
following principles in evaluating evidence
in cases of this nature: (a) An accusation for
rape can be made with facility; it is difficult
to prove but more difficult for the accused
though innocent to disprove; (b) In view of
the intrinsic nature of the crime of rape
where only two persons are involved, the
testimony of the complainant must be
scrutinized with extreme caution; and (c)
The evidence for the prosecution must stand
and fall on its own merits, and cannot be
allowed to draw strength from the weakness
of the evidence for the defense."
[7]

Anent the first assigned error, no amount of
persuasion can convince this Court to tilt the
scales of justice in favor of the accused-
appellant notwithstanding that he cries foul
insisting that the rape charge was merely
concocted and strongly motivated by greed
over a certain lot situated at the NHA-
Madrigal Estate Housing Project, Barangay
San Antonio, San Francisco del Monte,
Quezon City. The accused-appellant
theorizes that prosecution witness Asuncion
Rivera, the maternal grandmother of the
victim Rodessa, concocted the charge of
rape so that, in the event that the accused-
appellant shall be meted out a death
sentence, title to the lot will be consolidated
in her favor. Indeed, the lot in question is
co-owned by the accused-appellant and
Conrado Alfonso, the live-in partner of
Asuncion Rivera, according to the records of
the National Housing Authority (Exh.
"3"). The accused-appellant would want us
to believe that the rape charge was
fabricated by Asuncion Rivera in order to
eliminate the accused-appellant from being a
co-owner. So, the live-in partners would
have the property for their own.
[8]

We believe, as did the Solicitor-General,
that no grandmother would be so callous as
to instigate her 10-year old granddaughter to
file a rape case against her own father
simply on account of her alleged interest
over the disputed lot.
[9]

It is a well-entrenched jurisprudential rule
that the testimony of a rape victim is
credible where she has no motive to testify
against the accused.
[10]

We find no flaws material enough to
discredit the testimony of the ten-year old
Rodessa which the trial court found
convincing enough and unrebutted by the
defense. The trial court not surprisingly
noted that Rodessa's narration in detail of
her father's monstrous acts had made her
cry.
[11]
Once again, we rule that:
"x x x The testimony of the victim who was
only 12 years old at the time of the rape as
to the circumstances of the rape must be
given weight for testimony of young and
immature rape victims are credible (People
v. Guibao, 217 SCRA 64 [1993]). No
woman especially one of tender age,
practically only a girl, would concoct a story
of defloration, allow an examination of her
private parts and thereafter expose herself to
a public trial, if she were not motivated
solely by the desire to have the culprit
apprehended and punished (People v.
Guibao, supra)."
[12]

The accused-appellant points out certain
inconsistencies in the testimonies of the
prosecution witnesses in his attempt to
bolster his claim that the rape accusation
against him is malicious and
baseless. Firstly, Rodessa's testimony that
the accused-appellant was already naked
when he dragged her inside the room is
inconsistent with her subsequent testimony
that the said accused-appellant was still
wearing short pants when she was dragged
inside the room. Secondly, Rodessa's sworn
statement before the police investigator
which indicated that, while the accused was
executing pumping acts, he uttered the
words "Masarap ba?", differ from her
testimony in court wherein she related that
when the accused took out his penis from
her vagina, the accused said "Masarap, tapos
na." Thirdly, the victim's grandmother,
Asuncion Rivera, recounted in her sworn
statement that it was the accused who went
to see her to apprise her of the rape
committed on her granddaughter. However,
in her testimony in court, Asuncion Rivera
claimed that she was the one who invited the
accused-appellant to see her in her house so
as to tell her a secret.
[13]
These alleged
discrepancies merely pertain to minor details
which in no way pose serious doubt as to the
credibility of the prosecution
witnesses. Whether or not the accused was
naked when he dragged Rodessa inside the
room where he sexually assaulted her bears
no significant effect on Rodessa's testimony
that she was actually raped by the accused-
appellant. Moreover, a conflicting account
of whatever words were uttered by the
accused-appellant after he forcefully
inserted his penis into Rodessa's private
organ against her will cannot impair the
prosecution's evidence as a whole. A
determination of which version earmarks the
truth as to how the victim's grandmother
learned about the rape is inconsequential to
the judgment of conviction.
As we have pronounced in the case of
People v. Jaymalin:
[14]

"This Court has stated time and again that
minor inconsistencies in the narration of a
witness do not detract from its essential
credibility as long as it is on the whole
coherent and intrinsically
believable. Inaccuracies may in fact suggest
that the witness is telling the truth and has
not been rehearsed as it is not to be
expected that he will be able to remember
every single detail of an incident with
perfect or total recall."
After due deliberation, this Court finds that
the trial judge's assessment of the credibility
of the prosecution witnesses deserves our
utmost respect in the absence of
arbitrariness.
With respect to the second assigned error,
the records of the instant case are bereft of
clear and concrete proof of the accused-
appellant's claim as to the size of his penis
and that if that be the fact, it could not have
merely caused shallow healed lacerations at
3:00 and 7:00 o'clock.
[15]
In his testimony,
the accused- appellant stated that he could
not have raped Rodessa because of the size
of his penis which could have ruptured her
vagina had he actually done so.
[16]
This
Court gives no probative value on the
accused-appellant's self-serving statement in
the light of our ruling in the case of People
v. Melivo, supra,
[17]
that:
"The vaginal wall and the hymenal
membrane are elastic organs capable of
varying degrees of distensibility. The
degree of distensibility of the female
reproductive organ is normally limited only
by the character and size of the pelvic inlet,
other factors being minor. The female
reproductive canal being capable of
allowing passage of a regular fetus, there
ought to be no difficulty allowing the entry
of objects of much lesser size, including the
male reproductive organ, which even in its
largest dimensions, would still be
considerably smaller than the full-term fetus.
xxx xxx
xxx
In the case at bench, the presence of healed
lacerations in various parts of the vaginal
wall, though not as extensive as appellant
might have expected them to be, indicate
traumatic injury to the area within the
period when the incidents were supposed to
have occurred." (At pp. 13-14, Italics
supplied)
In rape cases, a broken hymen is not an
essential element thereof.
[18]
A mere
knocking at the doors of the pudenda, so to
speak, by the accused's penis suffices to
constitute the crime of rape as full entry into
the victim's vagina is not required to sustain
a conviction.
[19]
In the case, Dr. Freyra, the
medico-legal examiner, categorically
testified that the healed lacerations of
Rodessa on her vagina were consistent with
the date of the commission of the rape as
narrated by the victim to have taken place in
April, 1994.
[20]

Lastly, the third assigned error deserves
scant consideration. The accused-appellant
erroneously argues that the Contract of
Services (Exhibit 4) offered as evidence in
support of the accused-appellant's defense of
alibi need not be corroborated because there
is no law expressly requiring so.
[21]
In view
of our finding that the prosecution witnesses
have no motive to falsely testify against the
accused-appellant, the defense of alibi, in
this case, uncorroborated by other witnesses,
should be completely disregarded.
[22]
More
importantly, the defense of alibi which is
inherently weak becomes even weaker in the
face of positive identification of the
accused-appellant as perpetrator of the crime
of rape by his victim, Rodessa.
[23]

The Contract of Services whereby the
accused-appellant obligated himself to do
some painting Job at the house of one
Divina Ang in Paranaque, Metro Manila,
within 25 days from April 4, 1994, is not
proof of the whereabouts of the accused-
appellant at the time of the commission of
the offense.
The accused-appellant in this case is charged
with Statutory Rape on the basis of the
complaint, dated July 14, 1994. The
gravamen of the said offense, as stated in
paragraph 3, Article 335 of the Revised
Penal Code, is the carnal knowledge of a
woman below twelve years old.
[24]
Rodessa
positively identified his father accused-
appellant, succeeded in consummating his
grievous and odious sexual assault on her is
free from any substantial self-
contradiction. It is highly inconceivable that
it is rehearsed and fabricated upon
instructions from Rodessa's maternal
grandmother Asuncion Rivera as asserted by
the accused-appellant. The words of Chief
Justice Enrique M. Fernando, speaking for
the Court, more than two decades ago, are
relevant and worth reiterating, thus:
"x x x it is manifest in the decisions of this
Court that where the offended parties are
young and immature girls like the victim in
this case, (Cited cases omitted) there is
marked receptivity on its part to lend
credence to their version of what
transpired. It is not to be wondered at. The
state, as parens patria, is under the
obligation to minimize the risk of harm to
those, who, because of their minority, are as
yet unable to take care of themselves
fully. Those of tender years deserve its
utmost protection. Moreover, the injury in
cases of rape is not inflicted on the
unfortunate victim alone. The consternation
it causes her family must also be taken into
account. It may reflect a failure to abide by
the announced concern in the fundamental
law for such institution. There is all the
more reason then for the rigorous
application of the penal law with its severe
penalty for this offense, whenever
warranted. It has been aptly remarked that
with the advance in civilization, the
disruption in public peace and order it
represents defies explanation, much more so
in view of what currently appears to be a
tendency for sexual permissiveness. Where
the prospects of relationship based on
consent are hardly minimal, self-restraint
should even be more marked."
[25]

Under Section 11 of Republic Act No. 7659
often referred to as the Death Penalty Law,
Art. 335 of the Revised Penal Code was
amended, to wit:
"The death penalty shall also be imposed if
the crime of rape is committed with any of
the following attendant circumstances:
1. When the victim is under eighteen (18)
years of age and the offender is a parent,
ascendant, step-parent, guardian, relative by
consanguinity or affinity within the third
civil degree, or the common-law spouse of
the parent of the victim.
xxx xxx
xxx
(Italics supplied)
Apparently, as a last glimpse of hope, the
accused-appellant questions the penalty
imposed by the trial court by declaring that
he is neither a father, stepfather or
grandfather of Rodessa although he was a
confirmed lover of Rodessa's mother.
[26]
On
direct examination, he admitted that before
the charge of rape was filed against him, he
had treated Rodessa as his real daughter and
had provided for her food, clothing, shelter
and education.
[27]
The Court notes that
Rodessa uses the surname of the accused-
appellant, not Rivera (her mother's maiden
name) nor Alfonso (her grandmother's live-
in partner). Moreover, Rodessa's mother
stated during the cross-examination that she,
the accused-appellant and her five children,
including Rodessa, had been residing in one
house only.
[28]
At any rate, even if he were
not the father, stepfather or grandfather of
Rodessa, this disclaimer cannot save him
from the abyss where perpetrators of
heinous crimes ought to be, as mandated by
law. Considering that the accused-appellant
is a confirmed lover of Rodessa's
mother,
[29]
he falls squarely within the
aforequoted portion of the Death Penalty
Law under the term "common-law spouse of
the parent of the victim."
The fact that the ten-year old Rodessa
referred to the accused-appellant as "Papa"
is reason enough to conclude that accused-
appellant is either the father or stepfather of
Rodessa. Thus, the act of sexual assault
perpetrated by the accused on his young
victim has become all the more repulsive
and perverse. The victim's tender age and
the accused-appellant's moral ascendancy
and influence over her are factors which
forced Rodessa to succumb to the accused's
selfish and bestial craving. The law has
made it inevitable under the circumstances
of this case that the accused-appellant face
the supreme penalty of death.
WHEREFORE, we AFFIRM the decision
of the Regional Trial Court of Quezon City,
Branch 104.
SO ORDERED.


PEOPLE OF THE PHILIPPINES,
plaintiff-appellee, vs. ALEXANDER
BAUTISTA, accused-appellant.
D E C I S I O N
MENDOZA, J .:
This is an appeal from the decision of the
Regional Trial Court of Manila, Branch V,
Special Criminal Court, finding accused-
appellant Alexander Bautista guilty of
murder. The information against accused-
appellant alleged
That on or about January 12, 1987, in the
City of Manila, Philippines, the said accused
did then and there wilfully, unlawfully and
feloniously, with treachery and with evident
premeditation and with intent to kill, attack,
assault and use personal violence upon
ALLAN JONE CLEMENTE Y
PADDAYUAN, by then and there
embracing the shoulders of said Allan Jone
Clemente y Paddayuan, whipping out a fan
knife and stabbing him on the right portion
of his body thereby depriving him of a
chance to defend himself from the said
attack and inflicting upon him mortal stab
wound, which wound was the direct and
immediate cause of his death thereafter.
Contrary to law.
[1]

The prosecution evidence tends to show the
following:
On January 12, 1987, at around 5:30 in the
afternoon, while the victim Allan Jone
Clemente was having drinks with Orlando
Ocares in a house at 3427 F. Aguilar Street,
Barrio Obrero in Tondo, Manila, accused-
appellant Alexander Bautista arrived and
asked Clemente to accompany him
home. Clemente obliged and the two
walked down F. Aguilar Street with
accused-appellant placing his left arm
around Clementes shoulder. When they
passed in front of the house of Danilo
Enrique Cancio, they stopped. Danilo was
on the terrace, on the second floor of his
house, watching those playing basketball
near the street. Henry Narciso, another
resident of F. Aguilar Street, met accused-
appellant and Clemente while the two were
on their way to accused-appellants home.
Suddenly accused-appellant pulled out
a balisong (fan knife) with his right hand
and stabbed Clemente with it, hitting the
latter on the lower right abdomen. Accused-
appellant afterwards fled to an alley leaving
his victim in critical condition.
Clemente managed to go home, but he
collapsed upon reaching their house. He
was rushed to the Chinese General Hospital
in Sta. Cruz, Manila, where he later expired.
During the trial, the prosecution presented
Danilo Enrique Cancio and Henry Narciso,
both residents of F. Aguilar Street, Barrio
Obrero, Tondo, Manila, as witnesses.
Cancio testified that sometime between 5:30
and 6:00 in the afternoon of January 12,
1987, while watching a basketball game in a
nearby court from the second floor terrace of
his house at 3393 F. Aguilar Street, he saw
Clemente stabbed by accused-appellant as
the two passed by his house. Cancio
testified that the stabbing was not preceded
by any quarrel between Clemente and
accused-appellant.
[2]
In fact, accused-
appellant had his left arm around Clementes
shoulder when accused-appellant pulled out
his balisong and stabbed Clemente with
it. Accused-appellant then walked towards
an alley.
[3]

Clemente staggered as he walked towards
his house, shouting, I was
stabbed.
[4]
Cancio said he rushed
downstairs to help Clemente, but his brother
stopped him from doing so. Clemente was
taken to the Chinese General Hospital on a
tricycle by Orlando Ocares and an
unidentified person.
Narciso testified that on January 12, 1987 he
met his friend, Clemente, and accused-
appellant on F. Aguilar Street. Accused-
appellants left arm was around Clementes
left shoulder when all of a sudden he heard
someone exclaim, aray.
[5]
He saw
Clemente bloodied as accused-appellant
held in his hand a bloodstained nine-
inch balisong.
[6]

Sgt. Patricio Balanay of the Western Police
District also testified. He investigated the
incident and prepared the progress report
and the booking and information sheet of
accused-appellant.
[7]
Dr. Nelson Tiu,
attending physician at the Chinese General
Hospital, also testified. Dr. Marcial Ceido,
a medico-legal officer of the Western Police
District, prepared the post-mortem findings
and death certificate of the victim
[8]
showing
the following:
EXTERNAL INJURY AND EXTENSION
INTERNALLY:
1. Penetrating stab wound, right lower
quadrant of the abdomen, 33 ins. from the
heel, 7.5 cm. from the anterior midline,
measuring 1.5 cm. x 0.9 cm. x 9 cm. in
depth, directed obliquely backwards, slightly
downwards and towards the midline and
almost transecting the right common iliac
artery.
INTERNAL FINDINGS:
1. Stab wound of the right common iliac
artery with massive hemoperitoneum and
generalized pallor; and
2. Recovered from the stomach about a
glassful of partially digested rice with
vegetables and with alcoholic odor.
CAUSE OF DEATH:
Penetrating stab wound, right lower
quadrant, abdomen, almost transecting the
right common iliac artery.
[9]

Maribeth Morales, the victims widow, was
the last witness for the prosecution. She
testified on the hospital and funeral expenses
incurred by her as a result of the death of her
husband.
Accused-appellant admitted that on January
12, 1987, he and the victim Allan Jone
Clemente met on F. Aguilar
Street. Accused-appellant claimed that he
and his wife were going home with their
eight-year old son, after coming from the
house of his in-laws. As befitted a friend, he
said he put his arm around Clementes
shoulder and the two of them walked
together. However, he claimed that while
they were thus walking, Clemente tried to
attack him with the balisong. He grappled
with the deceased for possession of the
knife. Clemente cried in pain apparently
because he had been accidentally
hit. Accused-appellant said he then left
Clemente and proceeded to his aunts house
in Caloocan City.
[10]

Ricardo Espinosa, a Caloocan City resident,
corroborated the testimony of accused-
appellant that it was Clemente who pulled
out the balisong and that the two engaged in
a struggle.
[11]

Cancio was recalled to the witness
stand. He said that when he saw accused-
appellant and the deceased on F. Aguilar
Street, accused-appellants wife and child
were not there. He insisted that it was
accused-appellant, not the deceased, who
pulled out a balisong and stabbed the
deceased with it.
After the trial, the Regional Trial Court
found accused-appellant guilty of murder
and sentenced him as follows.
WHEREFORE, finding accused
ALEXANDER BAUTISTA Y TORRES
GUILTY beyond reasonable doubt of the
crime of Murder sentences him to suffer the
penalty of LIFE IMPRISONMENT,
indemnify the heirs of deceased ALLAN
JONE CLEMENTE Y PADDAYUAN the
sum of Thirty-Thousand (P30,000.00)
Pesos, and to pay the cost.
SO ORDERED.
[12]

Hence, this appeal. On February 20, 1996,
accused-appellant wrote the Court
expressing his desire to withdraw his present
appeal. However, in view of the objections
of the Office of the Solicitor General,
accused-appellants request was
denied. Accordingly, we shall dispose of
the appeal of accused-appellant.
Accused-appellant contends that the
evidence is insufficient to show that the
killing was attended by treachery or evident
premeditation so as to qualify it to murder.
The Solicitor General agrees that there was
no evident premeditation but argues that
treachery attended the killing of Allan Jone
Clemente. He further contends that the
imposable penalty should be reclusion
perpetuaand that the indemnity should be
increased to P50,000.00.
The Court finds the Solicitor Generals
contention to be well taken.
To begin with, the findings of the trial court
are entitled to great respect considering its
opportunity of observing the demeanor of
the witnesses while testifying. As has been
held:
The trial courts ruling that the testimonies
of the prosecution witnesses were more
credible is entitled to respect. This Court
accords the highest respect for the findings
of the trial court on the issue of credibility of
witnesses because the trial court is in a
better position to decide the question, having
heard the witnesses testify and observed
their demeanor and deportment while
testifying, absent any showing that the trial
court overlooked, misunderstood, or
misapplied some facts or circumstances of
weight and substance which would have
affected the result of the case.
[13]

In this case, the trial court found:
There are actually two eyewitnesses, Danilo
Cancio and Henry Narciso for the
prosecution. Danilo and Henry testified
with clarity that they saw the unprovoked
and unmitigated stabbing of Allan Jone
Clemente by accused Bautista. Danilo and
Henry had no reason in the world to testify
against accused Bautista. Danilo had known
accused since childhood. He even
considered himself as a friend of the
accused. Henry is a neighbor of both the
accused and the victim Clemente. There is
no reason for him to testify in favor of either
the accused or the victim. A neighbor like
Danilo and Henry will have to think many
times before they testify for or against a
neighbor. . . .
On the other hand, what has accused
Alexander Bautista to show on his claim of
self-defense? The defense presented
Ricardo Espinosa to support his claim that it
was victim Allan Jone Clemente who pulled
the knife and tried to stab accused
Bautista. And that it was in his self-defense
that Bautista was able to turn the table and
instead stabbed and killed Allan Jone
Clemente. Instead of presenting a witness
who hailed from the place which the court is
sure there were many who actually
witnessed the incident, he presented
Espinosa who hails from Caloocan City. A
man, because of his distance of domicile,
could bring forth any version to his hearts
desire without fear of being chastised by the
neighborhood. Aside from his being from
another place, he admitted as it should be,
that he did not actually see what transpired
between accused Bautista and deceased
Clemente. All that he knew was that, there
is some kind of a trouble between the two.
With the testimony of Espinosa, accused
Bautista brought to the fore his claim of self-
defense. Accused Bautistas claim that it
was deceased Clemente who without
provocation on his part suddenly drew a
knife, hold on the hand with the knife of
deceased Clemente, struggled for its
possession and in the process stabbed
Clemente. A statement the court cannot take
as gospel truth. If it were true that the
deceased Clemente was armed with a knife
and had an intention as he was pictured by
accused Bautista to stab and kill him,
deceased Clemente would not have allowed
himself to be lulled into allowing Bautista to
embrace him and with Bautistas arm around
his shoulder, not only lower his guard, open
himself to attack.
To the mind of the Court, Bautistas claim
of self-defense is a last minute thought-up
story designed to exculpate himself, or at
least mitigate the crime he has just
committed. The positive testimony of two
witnesses more than demolished the claim of
self-defense.
[14]

Accused-appellant claims that he and
Clemente grappled with each other and that
when he caught Clementes hand which was
holding the knife, he pressed it toward
Clemente until the latter cried in pain
indicating that he had been wounded.
[15]

FISCAL BAUTISTA (to witness):
Q And according to you, Allan did not
supposedly in pulling the knife because you
were pressing the hold of Allan from the
possession of the knife?
A He was able to leave there.
Q And you continued pressing the hand of
the victim, is that right?
A Yes, sir.
Q And according to you, it was at this
point when you heard the victim cr[y]:
aray?
ATTY. TAGARDA:
Objection, misleading, Your Honor, he did
not say that it was on this point.
COURT:
Let the witness answer.
WITNESS:
Yes, sir.
FISCAL BAUTISTA (to witness):
Q And upon hearing the victim shout aray,
you already released your hold on the hands
of the victim and walked away?
A Yes, sir.
[16]

Any person claiming to have acted in self-
defense, as accused-appellant does, has the
burden of proving his claim. More
specifically, he must prove: (1) unlawful
aggression; (2) reasonable necessity of the
means employed to prevent or repel it; and
(3) lack of sufficient provocation on the part
of the person defending himself. Foremost
of these is the requisite that the victim was
guilty of unlawful aggression; the absence of
this requisite negates the existence of self-
defense. It must be positively shown that
there was a previous unlawful and
unprovoked attack on the person of the
defendant which placed him in danger and
justified him in inflicting harm upon his
assailant through the employment of
reasonable means to repel the aggression.
In this case, the weight of the evidence
shows that it was accused-appellant who
was guilty of aggression upon the
victim. Two witnesses for the
prosecution Danilo Enrique Cancio and
Henry Narciso testified that they saw
accused-appellant attack the deceased
without provocation on the part of the
latter. Belying accused-appellants claim
that he acted in self-defense, these witnesses
said that accused-appellant stabbed the
deceased in a sudden and unprovoked
attack. These witnesses had no motive to
falsify the truth. Indeed, accused-appellant
does not press his claim of self-defense in
this appeal. What he simply contends now
is that the trial court erred in convicting him
of murder because there was neither
treachery nor evident premeditation.
The killing in this case is murder qualified
by treachery, as the Solicitor General points
out. The two conditions necessary to prove
treachery are in this case, to wit: (a) the
employment of means of execution that
gives the person attacked no opportunity to
defend himself or retaliate and (b) the means
of execution were deliberately or
consciously adopted.
[17]
The evidence shows
that while pretending to embrace Clemente,
accused-appellant stabbed the former with a
sudden and quick thrust of his balisong in
the lower right abdomen of the
deceased. The means of attack was
deliberately resorted to by accused-appellant
to deprive Clemente of the opportunity of
defending himself.
On the other hand, there is no proof of
evident premeditation as there is no
evidence of planning or preparation to kill or
of the time when the plot was conceived.
[18]

The trial court, however, erred in sentencing
accused-appellant to life imprisonment. The
penalty for murder is reclusion perpetua to
death. As there was neither aggravating nor
mitigating circumstance, the imposable
penalty, following Art. 63(2) of the Revised
Penal Code, is reclusion perpetua. But
reclusion perpetua is not the same as life
imprisonment as the trial court seems to
think. As this Court has explained time and
time again, the two have important
consequential differences.
[19]
As held
in People v. Ballabare:
[20]

While life imprisonment may appear to be
the English translation of reclusion
perpetua, in reality, it goes deeper than
that. First, life imprisonment is invariably
imposed for serious offenses penalized by
special laws, while reclusion perpetua is
prescribed under The Revised Penal
Code. Second, life imprisonment,
unlike reclusion perpetua, does not carry
with it any accessory penalty. Third, life
imprisonment does not appear to have any
definite extent or duration, while reclusion
perpetua entails imprisonment for at least
thirty (30) years after which the convict
becomes eligible for pardon, although the
maximum period thereof shall in no case
exceed forty (40) years.
With respect to the civil indemnity, the
evidence presented by the prosecution,
consisting of receipts, shows that expenses
for Clementes funeral in the aggregate
amount of P14,000.00 had been
incurred.
[21]
Hospital bills, showing
expenses for medical treatment in the total
amount of P736.75, were also presented but
they were not identified.
Apparently, they were simply marked as
exhibits
[22]
and admitted by the trial
court. Consequently, they cannot be
considered.
Finally, the indemnity to Clementes heirs
should be increased to P50,000.00 in line
with our rulings.
[23]
Moral damages in the
amount of P50,000.00 are also
appropriate.
[24]

WHEREFORE, the decision of the
Regional Trial Court of Manila, Branch V,
is AFFIRMED with the MODIFICATION
that accused-appellant is sentenced
to reclusion perpetua and ordered to pay the
heirs of Allan Jone Clemente the amounts
of P14,000.00, as actual
damages, P50,000.00, as indemnity,
and P50,000.00, as moral damages.
SO ORDERED.
Bellosillo, (Chairman),
Quisumbing, and Buena, JJ., concur.