RAMIE VALENZUELA,

G.R. No. 149988

Petitioner,
Present:
*

CARPIO-MORALES, J.,
Acting Chairperson,
**
CARPIO,
***
CHICO-NAZARIO,
****
LEONARDO-DE CASTRO, and
BRION, JJ.

versus -

PEOPLE OF THEPHILIPPINES,
Respondent.

Promulgated:

August 14, 2009

x ------------------------------------------------------------------------------------------x
DECISION
BRION, J.:

Petitioner Ramie Valenzuela (petitioner) seeks, in this petition for review on certiorari,[1] to reverse the Court of Appeals (CA)
decision and resolution dated June 18, 2001 and September 10, 2001, respectively, in CA-G.R. CR No. 20533, that affirmed with
modification the decision of the Regional Trial Court (RTC), Branch 38, Lingayen, Pangasinan, dated November 21, 1996, convicting
the petitioner with the crime of attempted murder.

Petitioner and his brother, Hermie Valenzuela (Hermie), were charged with the crime of frustrated murder, allegedly committed
as follows:
That on or about the 20th day of February 1996, in the evening, in Barangay Maniboc, municipality of
Lingayen, province of Pangasinan, Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, armed with a sharp pointed, bladed instrument, with intent to kill, taking advantage of their superior
strength, conspiring, confederating and mutually helping one another, did then and there willfully, unlawfully and
feloniously attack, assault and stab Gregorio P. Cruz, inflicting upon him the following:
-

Stab wound 1 cm flank area left, 3 cm. depth

Stap wound 1 cm flank area left, 3 cm. depth

the accused having thus performed all the acts of execution which would have produced the crime of murder as a
consequence but nevertheless did not produce it by reason of causes independent of the will of the accused, that is,
the timely medical assistance afforded to Gregorio P. Cruz which prevented his death, to his damage and prejudice.[2]

We summarized below the facts based on the records before us.

Petitioner and the victim, Gregorio P. Cruz (Gregorio), both lived in Barangay Maniboc, Lingayen, Pangasinan. In the early evening
of February 20, 1996, Gregorio and his companion, Rogelio Bernal (Rogelio), went to the house of Barangay Captain Aurora dela Cruz
to talk with Pepito, the latter's husband. While at the dela Cruz home, Gregorio, Rogelio and Pepito drank liquor (Fundador).

Based on the prosecutions account of the events, at around 10:00 oclock of that same evening, Gregorio and Rogelio left the dela Cruz
residence and headed for home after their drinking spree with Pepito dela Cruz. While they were walking along the barangay road and
were near the Valenzuelas residence/sari-sari store, the petitioner and his brother Hermie suddenly appeared from behind them. The
petitioner held the shoulders of Gregorio while Hermie stabbed Gregorio twice at the left side of his back. Immediately thereafter,
Hermie ran to the direction of the Valenzuelas house some 10 meters away.

After the stabbing, Gregorio was brought to the clinic of one Dr. Casipit who administered emergency treatment on the stab wounds. He
was transferred the following day to thePangasinan Provincial Hospital (now Gov. Teofilo Sison Memorial Hospital) for further
treatment. Per the medical findings of Dr. Antonio Rivera (Dr. Rivera), attending physician and Medical Officer III of the said hospital,
Gregorio suffered the following wounds:
Stab wound 1 cm flank area left, 3 cm depth;
-

Stab wound 1 cm flank area left, 3 cm depth.

The wounds were found not to be fatal, as no vital organ was affected. Gregorio was discharged after one week of confinement.

On March 13, 1996, SPO II Jimmy B. Melchor of the Lingayen Police Station filed before the Municipal Trial Court of Lingayen,
Pangasinan a criminal complaint for frustrated murder against the petitioner and Hermie. Finding probable cause, the court issued a
warrant for their arrest and forwarded the records of the case to the Office of the Provincial Prosecutor of Pangasinan for the filing of
the appropriate Information.[3] On May 16, 1996, an Information was filed before the RTC of Lingayen, Pangasinan, charging the two
accused with frustrated murder.

Trial of the case proceeded solely with respect to the petitioner as his brother and co-accused, Hermie, was then, and still is, at large.

The prosecution presented Dr. Rivera of the Pangasinan Provincial Hospital who explained his medical findings on the injuries
Gregorio sustained. He said that the 2 one-centimeter long wounds, both three-centimeter deep, were not fatal as no vital organ was
affected.
The prosecution likewise presented Rogelio who declared that on the night of February 20, 1996, he accompanied Gregorio to the
house of their Barangay Captain to talk to the latter's husband, Pepito dela Cruz; they drank as they talked with Pepito. As they headed
for home while passing by the Valenzuelas house/sari-sari store, the petitioner suddenly appeared from behind and held Gregorio,
while Hermie stabbed the victim. Rogelio was able to positively identify the petitioner and Hermie as Gregorio's assailants, as the scene
of the crime was well-lighted, illuminated by a streetlight from a nearby electric post.

After the stabbing, the two assailants ran towards their house, and Rogelio took Gregorio initially to the house
of Barangay Captain dela Cruz, and then to the clinic of a certain Dr. Casipit for emergency treatment. Thereafter, he took Gregorio to
the Pangasinan Provincial Hospital in Dagupan City because the wounds appeared to be serious.Rogelio claimed that Hermie used an
8-inch long knife.

The victim, Gregorio, likewise testified for the prosecution. He declared that he was the Chief Barangay Tanod of their place and that he
knew the two accused because they were residents of his barangay. The rest of his testimony was similar to Rogelios.

The petitioner, after pleading not guilty to the charge, presented his defenses of denial and alibi. He claimed that on the night
of February 20, 1996, he was at home together with his uncle, his sister, his sisters friend, and his parents. Earlier that night, he claimed
that he read the Bible, ate dinner with his family and guests, then watched television. At around 10:00 oclock that evening, they heard
somebody shouting from the outside; his parents, however, prevented him from going out of the house for fear that he might get into
trouble.

The petitioner claimed he was being implicated in the stabbing incident because he had a previous altercation with the victim,
Gregorio, when the latter apprehended his other brother, Rommel Valenzuela. He further surmised that Gregorio could have mistaken
him for his brother, Willy, with whom he shares physical similarities and who, he claimed, was one of the assailants in the stabbing
incident. Witnesses Nestor Cerezo (Nestor) and Rhodora Manzano (Rhodora) supported the petitioners defense of alibi.

Nestor testified that he is a businessman and a resident of Dagupan City. He claimed that the petitioner is his nephew, as the
petitioners maternal aunt, Josefina Campos, is his common-law partner. He stated that on February 20, 1996, he went to the
Valenzuelas house to collect payment on a debt owed him by the parents of the accused. Since he arrived after dark, the parents of the
accused prevailed on him to dine and spend the night with them.

At about 10:00 oclock that night, while he was talking with the petitioner and the latter's father (Rosauro), they heard a commotion
outside the house. He and Rosauro went out and saw several persons talking. They learned from their inquiry that Hermie had stabbed
Gregorio. Nestor claimed that all this time, the petitioner was inside the house because his father had prevented him from going out.

Rhodora also testified for the defense. She declared under oath that she is a friend of Annie Valenzuela, the younger sister of the
accused. On February 20, 1996, Annie invited her to sleep in their house. They had dinner at about 6:30 pm, ahead of the other
members of the household who were then in conversation with another visitor, whom she later learned to be Nestor. At about 9:45 pm,
while she and Annie were manning the Valenzuelas store, Willy Valenzuela arrived and joined the group singing and playing the guitar
in front of the store; Hermie was among those in the group.

At around 10:00 pm, she noticed Gregorio and Rogelio walking past the store; both appeared drunk as they were walking aimlessly. As
they walked, the two momentarily stopped and stared at the group in front of the Valenzuelas store before proceeding to another sarisari store nearby. She then heard Gregorio shout vulva of your mother, Valenzuela three times; Rogelio tried to pacify him. Thereafter,
she saw Hermie approach Gregorio to confront him. In a blur, she witnessed Gregorio hit Hermie on the left side of the face. Hermie
retreated to his house but came back and stabbed Gregorio at the left side of his back. She noticed that Willy then held the arms of
Gregorio in an attempt to mollify the latter; Gregorio responded by hitting Willy on the head. At this point, she heard Willy advise
Gregorio to go away to avoid further trouble; instead of heeding the advice, Gregorio threw a fist blow at Hermie, who dodged the blow
and stabbed Gregorio a second time.

Right after the stabbing, she saw Hermie run to the direction of the Valenzuelas house, while Gregorio and Rogelio proceeded to the
house of Barangay Captain Dela Cruz. She categorically declared that the petitioner had no participation in the incident, as only the
petitioner's brothers, Willy and Hermie, were at the scene of the crime.

After trial on the merits, the trial court rendered its decision [4] of November 21, 1996, convicting the petitioner of frustrated murder. The
trial court found that the petitioners defense of alibi had insufficient evidentiary support and must yield to the positive identification by
the prosecution witness, Rogelio. The dispositive portion of the lower court's decision reads:
WHEREFORE, in the light of all the foregoing considerations, the court finds and holds the accused, Ramie
Valenzuela, guilty beyond reasonable doubt of the crime of Frustrated Murder as charged in the information filed
against him, pursuant to law, taking into account the provision[s] of Article 250 of the Revised Penal Code and the
Indeterminate Sentence Law in his favor, hereby sentences said accused to suffer the indeterminate penalty of four
(4) years and two (2) months of prision correccional as minimum to eight (8) years and one (1) day of prision mayor
as maximum and to pay the costs of the suit. x x x

In appreciating the qualifying circumstance of abuse of superior strength, the trial court explained:
The information filed against the accused alleges that the two accused took advantage of their superior strength in
attacking and assaulting the offended party with sharp pointed, bladed instrument twice on the left side of the
back. Abuse of superior strength is determined by the excess of the aggressors natural strength over that of the
victim's, considering the momentary positions of both parties and the employment of means weakening the defense
of the victim, although not annulling it. Thus, there is abuse of superior strength in the case where four persons
attacked an unarmed victim (People v. Garcia, 94 SCRA 14) or where six persons inflicted injuries on the victim
(People v. Gonzales).
The petitioner appealed to the CA. In its decision of June 18, 2001, the appellate court affirmed with modification the trial courts
decision; it held that the crime committed was attempted murder since the wounds inflicted were not fatal. The fallo of the CA decision
reads:
WHEREFORE, premises considered, the appealed decision is hereby AFFIRMED WITH MODIFICATION. In
lieu thereof, another one is entered CONVICTING the accused of the crime of ATTEMPTED MURDER and
sentencing him to suffer the penalty of imprisonment of four (4) years and two (2) months of prision correccional, as
minimum, to eight (8) years and one (1) day of prision mayor, as maximum x x x. (Emphasis supplied.)
The appellate court denied the petitioner's motion for reconsideration that followed, thus paving the way for the present petition for
review on certiorari on the sole issue of
WHETHER THE COURT OF APPEALS ERRED IN CONVICTING THE PETITIONER FOR ATTEMPTED MURDER.
Thus framed, the sole issue before us is whether the crime the petitioner committed should properly be attempted murder based on the
qualifying circumstance of abuse of superior strength.
We find the petition meritorious.
The RTC and the CA commonly found an intent to kill. They differ in the appreciation of the stage of execution of the crime as the RTC
considered the crime frustrated, while the CA decided that it was attempted because the victims wounds were not fatal. In both rulings,

the RTC and the CA characterized the act to be qualified by abuse of superior strength; thus, it was either attempted or frustrated
murder.
The petitioner, in his Reply,[5] finds the appreciation of abuse of superior strength to be erroneous, as the Information charging him with
the crime of frustrated murder did not allege this circumstance with particularity as a qualifying circumstance. The petitioner therefore
posits that this circumstance, even if proven, must be considered a generic aggravating circumstance.
We see no merit in the petitioner's contention in light of our ruling in People v. Aquino[6] which we intended to guide the bench and the
bar on how to allege or specify qualifying or aggravating circumstances in the Information. We held in this case that the words
aggravating/qualifying, qualifying, qualified by, aggravating, or aggravated by need not be expressly stated, so long as the particular
attendant circumstances are specified in the Information.
This conclusion, notwithstanding, we hold that the conviction of the accused of the crime of either attempted or frustrated murder is
substantively flawed, as both the RTC and the CA erroneously appreciated the presence of abuse of superior strength as a qualifying
circumstance. Our own examination of the evidence tells us that no conclusive proof exists showing the presence of this circumstance
in the commission of the felony.
Both the trial and appellate courts concluded that abuse of superior strength was present because the petitioner held the arms of the
victim to facilitate the stabbing by his brother (Hermie) and to limit the degree of resistance that the victim may put up. [7] The trial court,
in particular, held that there is no doubt that accused took advantage of their combined strength when one held the victim by the
shoulder and armpit and the other inflicted two stab wounds on the left side of his back. We find this reasoning erroneous.
Abuse of superior strength is present whenever there is a notorious inequality of forces between the victim and the aggressor/s that is
plainly and obviously advantageous to the aggressor/s and purposely selected or taken advantage of to facilitate the commission of the
crime.[8] Evidence must show that the assailants consciously sought the advantage, [9] or that they had the deliberate intent to use this
advantage.[10] To take advantage of superior strength means to purposely use force excessively out of proportion to the means of
defense available to the person attacked.[11] The appreciation of this aggravating circumstance depends on the age, size and strength of
the parties.[12]
In the present case, the prosecution failed to present evidence to show a relative disparity in age, size, strength, or force,
except for the showing that two assailants, one of them armed with a knife, attacked the victim. The presence of two assailants, one of
them armed with a knife, is not per se indicative of abuse of superior strength.[13] Mere superiority in numbers does not indicate the
presence of this circumstance.[14] Nor can the circumstance be inferred solely from the victims possibly weaker physical constitution. In
fact, what the evidence shows in this case is a victim who is taller than the assailants[15] and who was even able to deliver retaliatory fist
blows[16] against the knife-wielder.
The events leading to the stabbing further belie any finding of deliberate intent on the part of the assailants to abuse their superior
strength over that of the victim. [17] The testimonies of the witnesses, on the whole, show that the encounter between the victim and his
assailants was unplanned and unpremeditated. The victim and his companions were simply passing by after a night of conversation
with drinks, while the assailants were simply singing and engaged in merrymaking, and no conscious effort on the part of the accused
appeared to have been made to use or take advantage of any superior strength that they then enjoyed. [18] Specifically, we do not find it
certain nor clearly established that the accused, taking advantage of their number, purposely resorted to holding the victim by the arms
so that the knife-wielder would be free to stab him at the back. In terms of numbers, the victim was with a companion while only two of
the Valenzuela brothers participated in the attack; thus a parity in numbers existed. Nor is it certain that the victim was simply
overwhelmed by the act of the accused of holding the victim by the shoulders while his brother stabbed him at the back. The evidence
on this point is simply too sketchy and too confused for a definitive conclusion. What, to us, is certain is the intent to kill, as shown by
the two stab wounds and their location; they were back wounds that could have been fatal or near fatal had greater force been used or
the dynamics of the parties movements at the time of the stabbing been different. Even if the accused did not directly wield the knife, he
is as guilty as the knife-wielder for the unity of purpose he has shown in participating in the attack against the victim, Gregorio.
In light of all these, we are compelled to rule out the attendance of abuse of superior strength as a qualifying circumstance. Considering
further that the victim sustained wounds that were not fatal and absent a showing that such wounds would have certainly caused his
death were it not for timely medical assistance, we declare the petitioners guilt to be limited to the crime of attempted homicide.

WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals dated June 18, 2001 in CA-G.R. CR No. 20533
is AFFIRMED with MODIFICATION.Petitioner Ramie Valenzuela is found guilty of attempted homicide under Article 249 in relation with
Article 6 of the Revised Penal Code. In the absence of any modifying circumstance attendant to the commission of the crime, we

hereby sentence him to suffer an indeterminate penalty[19] of four (4) months of arresto mayor in its medium period, as minimum, to
three (3) years of prision correccional in its medium period, as maximum.
SO ORDERED.
_______________________________________________________________________________________________________
G.R. No. 138033
February 22, 2006
RENATO
BALEROS,
JR., Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
GARCIA, J.:
In this petition for review on certiorari, petitioner Renato Baleros, Jr. assails and seeks the reversal of the January 13, 1999 decision1 of
the Court of Appeals (CA) in CA-G.R. CR No. 17271 as reiterated in its March 31, 1999 resolution 2 denying petitioners motion for
reconsideration.
The assailed decision affirmed an earlier decision of the Regional Trial Court (RTC) of Manila, Branch 2, in Criminal Case No. 91101642 finding petitioner Renato Baleros, Jr. y David (CHITO) guilty of attempted rape.3
The accusatory portion of the information4 dated December 17, 1991 charging petitioner with attempted rape reads as follow:
That about 1:50 in the morning or sometime thereafter of 13 December 1991 in Manila and within the jurisdiction of this Honorable
Court, the above-named accused, by forcefully covering the face of Martina Lourdes T. Albano with a piece of cloth soaked in chemical
with dizzying effects, did then and there willfully, unlawfully and feloniously commenced the commission of rape by lying on top of her
with the intention to have carnal knowledge with her but was unable to perform all the acts of execution by reason of some cause or
accident other than his own spontaneous desistance, said acts being committed against her will and consent to her damage and
prejudice.
Upon arraignment on February 5, 1992, petitioner, assisted by counsel, pleaded "Not Guilty."5 Thereafter, trial on the merits ensued.
To prove its case, the prosecution presented thirteen (13) witnesses. Among them were private complainant Martina Lourdes Albano
(Malou), and her classmates, Joseph Bernard Africa, Rommel Montes, Renato Alagadan and Christian Alcala. Their testimonies, as
narrated in some detail in the decision of the CA, established the following facts:
Like most of the tenants of the Celestial Marie Building (hereafter "Building", ) along A.H. Lacson Street, Sampaloc, Manila, MALOU,
occupying Room 307 with her maid, Marvilou Bebania (Marvilou), was a medical student of the University of Sto. Tomas [UST] in 1991.
In the evening of December 12, inside Unit 307, MALOU retired at around 10:30. Outside, right in front of her bedroom door, her maid,
Marvilou, slept on a folding bed.
Early morning of the following day, MALOU was awakened by the smell of chemical on a piece of cloth pressed on her face. She
struggled but could not move. Somebody was pinning her down on the bed, holding her tightly. She wanted to scream for help but the
hands covering her mouth with cloth wet with chemicals were very tight (TSN, July 5, 1993, p. 33). Still, MALOU continued fighting off
her attacker by kicking him until at last her right hand got free. With this the opportunity presented itself when she was able to grab
hold of his sex organ which she then squeezed.
The man let her go and MALOU went straight to the bedroom door and roused Marvilou. xxx. Over the intercom, MALOU told S/G
Ferolin that: "may pumasok sa kuarto ko pinagtangkaan ako" (Ibid., p. 8). Who it was she did not, however, know. The only thing she
had made out during their struggle was the feel of her attackers clothes and weight. His upper garment was of cotton material while
that at the lower portion felt smooth and satin-like (Ibid, p. 17). He was wearing a t-shirt and shorts Original Records, p. 355).
To Room 310 of the Building where her classmates Christian Alcala, Bernard Baptista, Lutgardo Acosta and Rommel Montes were
staying, MALOU then proceeded to seek help. xxx.
It was then when MALOU saw her bed topsy-turvy. Her nightdress was stained with blue (TSN, July 5, 1993, pp. 13-14). Aside
from the window with grills which she had originally left opened, another window inside her bedroom was now open. Her attacker had
fled from her room going through the left bedroom window (Ibid, Answers to Question number 5; Id), the one without iron grills which
leads to Room 306 of the Building (TSN, July 5, 1993, p.6).
xxx xxx xxx
Further, MALOU testified that her relation with CHITO, who was her classmate , was friendly until a week prior to the attack. CHITO
confided his feelings for her, telling her: "Gusto kita, mahal kita" (TSN, July 5, 1993, p. 22) and she rejected him. . (TSN, July 5, 1993,
p. 22).
Meanwhile, according to S/G Ferolin, while he was on duty, CHITO arrived at the Building at 1:30 in the early morning of December 13,
1991, wearing a white t-shirt with a marking on the front of the T-shirt T M and a Greek letter (sic) and below the quoted letters
the word 1946 UST Medicine and Surgery (TSN, October 9, 1992, p. 9) and black shorts with the brand name Adidas (TSN,
October 16, 1992, p.7) and requested permission to go up to Room 306. This Unit was being leased by Ansbert Co and at that time
when CHITO was asking permission to enter, only Joseph Bernard Africa was in the room.
He asked CHITO to produce the required written authorization and when CHITO could not, S/G Ferolin initially refused [but later,
relented] . S/G Ferolin made the following entry in the security guards logbook :
"0130H Baleros Renato Jr. is a visitor of Ansbert Co who has not have (sic) a Request letter from our tenant of Unit #-306 Ansbert, but
still I let him inter (sic) for the reason that he will be our tenant this coming summer break as he said so I let him sign it here
(Sgd.) Baleros Renato Jr."
(Exhibit "A-2")
That CHITO arrived at Room 306 at 1:30 A.M. of December 13, 1991 was corroborated by Joseph Bernard Africa (Joseph), .
xxx xxx xxx
Joseph was already inside Room 306 at 9 oclock in the evening of December 12, 1991. xxx by the time CHITOs knocking on the door
woke him up, . He was able to fix the time of CHITOs arrival at 1:30 A.M. because he glanced at the alarm clock beside the bed
when he was awakened by the knock at the door .
Joseph noticed that CHITO was wearing dark-colored shorts and white T-shirt (Ibid., p. 23) when he let the latter in. . It was at around
3 oclock in the morning of December 13, 1991 when he woke up again later to the sound of knocking at the door, this time, by Bernard
Baptista (Bernard), .
xxx. With Bernard, Joseph then went to MALOUs room and thereat was shown by Bernard the open window through which the intruder
supposedly passed.
xxx xxx xxx
Later, at about 6 to 6:30 in the morning of December 13, 1991, Joseph was finally able to talk to CHITO . He mentioned to the latter
that something had happened and that they were not being allowed to get out of the building. Joseph also told CHITO to follow him to
Room 310.
CHITO did just that. He followed after Joseph to Unit 310, carrying his gray bag. xxx. None was in Room 310 so Joseph went to their
yet another classmate, Renato Alagadan at Room 401 to see if the others were there. xxx.
People from the CIS came by before 8 oclock that same morning . They likewise invited CHITO and Joseph to go with them to Camp
Crame where the two (2) were questioned .
An occupant of Room 310 Christian Alcala (Christian) recalled in Court that in the afternoon of December 13, 1991, after their 3:30
class, he and his roommates, Bernard Baptista and Lutgardo Acosta (Gary) were called to the Building and were asked by the CIS
people to look for anything not belonging to them in their Unit. While they were outside Room 310 talking with the authorities, Rommel

Montes (Loyloy), another roommate of his, went inside to search the Unit. Loyloy found (TSN, January 12, 1993, p. 6) a gray
"Khumbella" bag cloth type (Ibid, pp. 44-45) from inside their unit which they did not know was there and surrender the same to the
investigators. When he saw the gray bag, Christian knew right away that it belonged to CHITO (Ibid, p. 55) as he had seen the latter
usually bringing it to school inside the classroom (Ibid, p. 45).
In their presence, the CIS opened the bag and pulled out its contents, among others, a white t-shirt with a Taunu (sic) Sigma Phi sign
(Ibid, p. 7), a Black Adidas short pants, a handkerchief , three (3) white T-shirts, an underwear, and socks (Ibid).
Christian recognized the t-shirt (Exhibit "D-4"), the Adidas short pants (Exhibit "D-5"), and the handkerchief (Exhibit "D-3) to be CHITOs
because CHITO had lent the very same one to him . The t-shirt with CHITOs fraternity symbol, CHITO used to wear on weekends,
and the handkerchief he saw CHITO used at least once in December.
That CHITO left his bag inside Room 310 in the morning of December 13, 1991, was what consisted mainly of Renato R. Alagadans
testimony.
xxx xxx xxx.
The colored gray bag had a handle and a strap, was elongated to about 11/4 feet and appeared to be full but was closed with a zipper
when Renato saw it then (Ibid, pp. 19-20). At that time Christian, Gary, Bernard, and Renato went back to Room 310 at around 3 to 4
oclock that afternoon along with some CIS agents, they saw the bag at the same place inside the bedroom where Renato had seen
CHITO leave it. Not until later that night at past 9 oclock in Camp Crame, however, did Renato know what the contents of the bag were.
xxx xxx xxx.
The forensic Chemist, Leslie Chambers, of the Philippine National Police Crime Laboratory in Camp Crame, having acted in response
to the written request of PNP Superintendent Lucas M. Managuelod dated December 13, 1991, (Exhibit "C"; Original Records, p. 109.)
conducted laboratory examination on the specimen collated and submitted. Her Chemistry Report No. C-487-91 (Exhibit "E"; Ibid., p.
112) reads in part, thus:
"SPECIMEN SUBMITTED:
xxx xxx xxx:
1) One (1) small white plastic bag marked UNIMART with the following:
xxx xxx xxx
Exh C One (1) night dress colored salmon pink.
2) One (1) small white pl astic bag marked JONAS with the following:
Exh. D One (1) printed handkerchief.
Exh. E One (1) white T-shirt marked TMZI.
Exh. F One (1) black short (sic) marked ADIDAS.
PURPOSE OF LABORATORY EXAMINATION:
To determine the presence of volatime (sic), non-volatile and/or metallic poison on the above stated specimens.
FINDINGS:
Toxicological examination conducted on the above stated specimens gave the following results:
Exhs. C and D POSITIVE to the test for chloroform, a volatile poison.
Exhs. A, B, E and F are insufficient for further analysis.
CONCLUSION:
Exhs. C and D contain chloroform, a volatile poison."6 (Words in bracket added)
For its part, the defense presented, as its main witness, the petitioner himself. He denied committing the crime imputed to him or
making at any time amorous advances on Malou. Unfolding a different version of the incident, the defense sought to establish the
following, as culled from the same decision of the appellate court:
In December of 1991, CHITO was a medical student of (UST). With Robert Chan and Alberto Leonardo, he was likewise a member
of the Tau Sigma Phi Fraternity . MALOU, , was known to him being also a medical student at the UST at the time.
From Room 306 of the Celestial Marie Building , CHITO, wearing the prescribed barong tagalog over dark pants and leather shoes,
arrived at their Fraternity house located at Dos Castillas, Sampaloc, Manila at about 7 oclock in the evening of December 12, 1991.
He was included in the entourage of some fifty (50) fraternity members scheduled for a Christmas gathering at the house of their senior
fraternity brother, Dr. Jose Duran, at No. 3 John Street, North Greenhills, San Juan. xxx.
The party was conducted at the garden beside [the] swimming pool . Soon after, the four (4) presidential nominees of the
Fraternity, CHITO included, were being dunked one by one into the pool. xxx.
xxx CHITO had anticipated his turn and was thus wearing his t-shirt and long pants when he was dunked. Perla Duran, , offered
each dry clothes to change into and CHITO put on the white t-shirt with the Fraternitys symbol and a pair of black shorts with stripes.
xxx .
Again riding on Albertos car and wearing "barong tagalog over a white t-shirt with the symbol TAU Sigma Phi, black short pants with
stripe, socks and shoes" (TSN, April 25, 1994, p. 15), CHITO left the party with Robert Chan and Alberto at more or less past 1 A.M. of
December 13, 1991 and proceeded to the Building which they reached at about 1:30 A.M. (Ibid., p. 19). He had left his gray traveling
bag containing "white t-shirt, sando, underwear, socks, and toothbrush (Ibid., pp. 17-18) at room 306 in the afternoon of the previous
day .
At the gate of the Building, CHITO knocked and , S/G Ferolin, looking at his watch, approached. Because of this, CHITO also looked
at his own watch and saw that the time was 1:30 (Ibid., p. 26). S/G Ferolin initially refused CHITO entry . xxx.
S/G Ferolin called Unit 306 . xxx. When S/G Ferolin finally let him in, already about ten (10) minutes had lapsed since CHITO first
arrived (Ibid., p. 25).
CHITO went up the floor, found the key left for him by Joseph behind the opened jalousie window and for five (5) minutes vainly tried to
open the door until Rommel Montes, approached him and even commented: "Okey ang suot mo ha, di mo mabuksan ang pinto
(Ibid., pp. 26-29). Rommel tried to open the door of Unit 306 but was likewise unsuccessful. CHITO then decided to just call out to
Joseph while knocking at the door.
It took another (5) minutes of calling out and knocking before Joseph, , at last answered the door. Telling him, "Ikaw na ang bahala
diyan" Joseph immediately turned his back on CHITO and went inside the bedroom. CHITO , changed to a thinner shirt and went to
bed. He still had on the same short pants given by Perla Duran from the fraternity party (TSN, June 16, 1994, p. 20).
At 6 oclock in the morning of December 13, 1991, CHITO woke up . He was already in his school uniform when, around 6:30 A.M,
Joseph came to the room not yet dressed up. He asked the latter why this was so and, without elaborating on it, Joseph told him that
something had happened and to just go to Room 310 which CHITO did.
At Room 310, CHITO was told by Rommel Montes that somebody, whom MALOU was not able to identify, went to the room of MALOU
and tried to rape her (TSN, April 25, 1994, p. 36). xxx.
Joseph told him that the security guard was not letting anybody out of the Building . When two (2) CIS men came to the unit asking
for Renato Baleros, CHITO presented himself. Congressman Rodolfo B. Albano, father of MALOU, then asked him for the key to Room
306.
xxx xxx xxx
The CIS men looked inside the bedroom and on the windows. Joseph was told to dress up and the two (2) of them, CHITO and Joseph,
were brought to Camp Crame.
When they arrived at Camp Crame , Col. Managuelod asked Joseph inside his room and talked to him for 30 minutes. xxx. No one
interviewed CHITO to ask his side.
xxx xxx xxx

Both CHITO and Joseph were taken to Prosecutor Abesamis who later instructed them to undergo physical examination at the Camp
Crame Hospital .. At the hospital, CHITO and Joseph were physically examined by a certain Dr. de Guzman who told them to strip
.
xxx xxx xxx
CHITO had left his gray bag containing, among others, the black striped short pants lent to him by Perla Duran (Exhibit "8-A", Original
Records, p. 345), inside Room 310 at more/less 6:30 to 7 oclock in the morning of December 13, 1991. The next time that he saw it
was between 8 to 9 P.M. when he and Joseph were brought before Fiscal Abesamis for inquest. One of the CIS agents had taken it
there and it was not opened up in his presence but the contents of the bag were already laid out on the table of Fiscal Abesamis who,
however, made no effort to ask CHITO if the items thereat were his.
The black Adidas short pants purportedly found in the bag, CHITO denied putting in his gray bag which he had left at Room 306 in the
early evening of December 12, 1991 before going to the fraternity house. He likewise disavowed placing said black Adidas short pants
in his gray bag when he returned to the apartment at past 1:00 oclock in the early morning of December 13, 1991 (TSN, June 16,
1994, p. 24), nor when he dressed up at about 6 oclock in the morning to go to school and brought his gray bag to Room 310 (Ibid. 25).
In fact, at any time on December 13, 1991, he was not aware that his gray bag ever contained any black short Adidas pants (Ibid). He
only found out for the first time that the black Adidas short pants was alluded to be among the items inside his gray bag late in the
afternoon, when he was in Camp Crame.
Also taking the witness stand for the defense were petitioners fraternity brothers, Alberto Leonardo and Robert Chan, who both testified
being with CHITO in the December 12, 1991 party held in Dr. Durans place at Greenhills, riding on the same car going to and coming
from the party and dropping the petitioner off the Celestial Marie building after the party. Both were one in saying that CHITO was
wearing a barong tagalog, with t-shirt inside, with short pants and leather shoes at the time they parted after the party. 7 Rommel
Montes, a tenant of Room 310 of the said building, also testified seeing CHITO between the hours of 1:30 and 2:00 A.M. of December
13, 1991 trying to open the door of Room 306 while clad in dark short pants and white barong tagalog.
On the other hand, Perla Duran confirmed lending the petitioner the pair of short pants with stripes after the dunking party held in her
fathers house.8 Presented as defense expert witness was Carmelita Vargas, a forensic chemistry instructor whose actual
demonstration in open court showed that chloroform, being volatile, evaporates in thirty (30) seconds without tearing nor staining the
cloth on which it is applied.9
On December 14, 1994, the trial court rendered its decision 10 convicting petitioner of attempted rape and accordingly sentencing him,
thus:
WHEREFORE, under cool reflection and prescinding from the foregoing, the Court finds the accused Renato D. Baleros, Jr., alias
"Chito", guilty beyond reasonable doubt of the crime of attempted rape as principal and as charged in the information and hereby
sentences him to suffer an imprisonment ranging from FOUR (4) YEARS, TWO (2) MONTHS AND ONE (1) DAY of Prision
Correctional, as Minimum to TEN (10) YEARS of Prision Mayor as Maximum, with all the accessory penalties provided by law, and for
the accused to pay the offended party Martina Lourdes T. Albano, the sum of P50,000.00 by way of Moral and exemplary damages,
plus reasonable Attorneys fees of P30,000.00, without subsidiary imprisonment in case of insolvency, and to pay the costs.
SO ORDERED.
Aggrieved, petitioner went to the CA whereat his appellate recourse was docketed as CA-G.R. CR No. 17271.
As stated at the threshold hereof, the CA, in its assailed Decision dated January 13, 1999, affirmed the trial courts judgment of
conviction, to wit:
WHEREFORE, finding no basis in fact and in law to deviate from the findings of the court a quo, the decision appealed from is hereby
AFFIRMED in toto. Costs against appellant.
SO ORDERED.11
Petitioner moved for reconsideration, but his motion was denied by the CA in its equally assailed resolution of March 31, 1999.12
Petitioner is now with this Court, on the contention that the CA erred 1. In not finding that it is improbable for petitioner to have committed the attempted rape imputed to him, absent sufficient, competent
and convincing evidence to prove the offense charged.
2. In convicting petitioner of attempted rape on the basis merely of circumstantial evidence since the prosecution failed to satisfy all the
requisites for conviction based thereon.
3. In not finding that the circumstances it relied on to convict the petitioner are unreliable, inconclusive and contradictory.
4. In not finding that proof of motive is miserably wanting in his case.
5. In awarding damages in favor of the complainant despite the fact that the award was improper and unjustified absent any evidence to
prove the same.
6. In failing to appreciate in his favor the constitutional presumption of innocence and that moral certainty has not been met, hence, he
should be acquitted on the ground that the offense charged against him has not been proved beyond reasonable doubt.
Otherwise stated, the basic issue in this case turns on the question on whether or not the CA erred in affirming the ruling of the RTC
finding petitioner guilty beyond reasonable doubt of the crime of attempted rape.
After a careful review of the facts and evidence on record in the light of applicable jurisprudence, the Court is disposed to rule for
petitioners acquittal, but not necessarily because there is no direct evidence pointing to him as the intruder holding a chemical-soaked
cloth who pinned Malou down on the bed in the early morning of December 13, 1991.
Positive identification pertains essentially to proof of identity and not per se to that of being an eyewitness to the very act of commission
of the crime. There are two types of positive identification. A witness may identify a suspect or accused as the offender as an
eyewitness to the very act of the commission of the crime. This constitutes direct evidence. There may, however, be instances where,
although a witness may not have actually witnessed the very act of commission of a crime, he may still be able to positively identify a
suspect or accused as the perpetrator of a crime as when, for instance, the latter is the person or one of the persons last seen with the
victim immediately before and right after the commission of the crime. This is the second type of positive identification, which forms part
of circumstantial evidence.13 In the absence of direct evidence, the prosecution may resort to adducing circumstantial evidence to
discharge its burden. Crimes are usually committed in secret and under condition where concealment is highly probable. If direct
evidence is insisted under all circumstances, the prosecution of vicious felons who committed heinous crimes in secret or secluded
places will be hard, if not well-nigh impossible, to prove.14
Section 4 of Rule 133 of the Rules of Court provides the conditions when circumstantial evidence may be sufficient for conviction. The
provision reads:
Sec. 4. Circumstantial evidence, when sufficient Circumstantial evidence is sufficient for conviction if
a) There is more than one circumstance;
b) The facts from which the inferences are derived are proven; and
c) The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt.
In the present case, the positive identification of the petitioner forms part of circumstantial evidence, which, when taken together with
the other pieces of evidence constituting an unbroken chain, leads to only fair and reasonable conclusion, which is that petitioner was
the intruder in question.
We quote with approval the CAs finding of the circumstantial evidence that led to the identity of the petitioner as such intruder:
Chito was in the Building when the attack on MALOU took place. He had access to the room of MALOU as Room 307 where he slept
the night over had a window which allowed ingress and egress to Room 306 where MALOU stayed. Not only the Building security
guard, S/G Ferolin, but Joseph Bernard Africa as well confirmed that CHITO was wearing a black "Adidas" shorts and fraternity T-shirt
when he arrived at the Building/Unit 307 at 1:30 in the morning of December 13, 1991. Though it was dark during their struggle,

MALOU had made out the feel of her intruders apparel to be something made of cotton material on top and shorts that felt satinsmooth on the bottom.
From CHITOs bag which was found inside Room 310 at the very spot where witness Renato Alagadan saw CHITO leave it, were
discovered the most incriminating evidence: the handkerchief stained with blue and wet with some kind of chemicals; a black "Adidas"
satin short pants; and a white fraternity T-shirt, also stained with blue. A different witness, this time, Christian Alcala, identified these
garments as belonging to CHITO. As it turned out, laboratory examination on these items and on the beddings and clothes worn by
MALOU during the incident revealed that the handkerchief and MALOUs night dress both contained chloroform, a volatile poison which
causes first degree burn exactly like what MALOU sustained on that part of her face where the chemical-soaked cloth had been
pressed.
This brings the Court to the issue on whether the evidence adduced by the prosecution has established beyond reasonable doubt the
guilt of the petitioner for the crime of attempted rape.
The Solicitor General maintained that petitioner, by pressing on Malous face the piece of cloth soaked in chemical while holding her
body tightly under the weight of his own, had commenced the performance of an act indicative of an intent or attempt to rape the victim.
It is argued that petitioners actuation thus described is an overt act contemplated under the law, for there can not be any other logical
conclusion other than that the petitioner intended to ravish Malou after he attempted to put her to an induced sleep. The Solicitor
General, echoing what the CA said, adds that if petitioners intention was otherwise, he would not have lain on top of the victim.15
Under Article 335 of the Revised Penal Code, rape is committed by a man who has carnal knowledge or intercourse with a woman
under any of the following circumstances: (1) By using force or intimidation; (2) When the woman is deprived of reason or otherwise
unconscious; and (3) When the woman is under twelve years of age or is demented. Under Article 6, in relation to the aforementioned
article of the same code, rape is attempted when the offender commences the commission of rape directly by overt acts and does not
perform all the acts of execution which should produce the crime of rape by reason of some cause or accident other than his own
spontaneous desistance.16
Expounding on the nature of an attempted felony, the Court, speaking thru Justice Claro M. Recto in People vs. Lamahang, 17 stated
that "the attempt which the Penal Code punishes is that which has a logical connection to a particular, concrete offense; that which is
the beginning of the execution of the offense by overt acts of the perpetrator, leading directly to its realization and consummation."
Absent the unavoidable connection, like the logical and natural relation of the cause and its effect, as where the purpose of the offender
in performing an act is not certain, meaning the nature of the act in relation to its objective is ambiguous, then what obtains is an
attempt to commit an indeterminate offense, which is not a juridical fact from the standpoint of the Penal Code.18
There is absolutely no dispute about the absence of sexual intercourse or carnal knowledge in the present case. The next question that
thus comes to the fore is whether or not the act of the petitioner, i.e., the pressing of a chemical-soaked cloth while on top of Malou,
constitutes an overt act of rape.1avvphil.net
Overt or external act has been defined as some physical activity or deed, indicating the intention to commit a particular crime, more
than a mere planning or preparation, which if carried out to its complete termination following its natural course, without being frustrated
by external obstacles nor by the voluntary desistance of the perpetrator, will logically and necessarily ripen into a concrete offense.19
Harmonizing the above definition to the facts of this case, it would be too strained to construe petitioner's act of pressing a chemicalsoaked cloth in the mouth of Malou which would induce her to sleep as an overt act that will logically and necessarily ripen into rape. As
it were, petitioner did not commence at all the performance of any act indicative of an intent or attempt to rape Malou. It cannot be
overemphasized that petitioner was fully clothed and that there was no attempt on his part to undress Malou, let alone touch her private
part. For what reason petitioner wanted the complainant unconscious, if that was really his immediate intention, is anybodys guess.
The CA maintained that if the petitioner had no intention to rape, he would not have lain on top of the complainant. Plodding on, the
appellate court even anticipated the next step that the petitioner would have taken if the victim had been rendered unconscious. Wrote
the CA:
The shedding of the clothes, both of the attacker and his victim, will have to come later. His sexual organ is not yet exposed because
his intended victim is still struggling. Where the intended victim is an educated woman already mature in age, it is very unlikely that a
rapist would be in his naked glory before even starting his attack on her. He has to make her lose her guard first, or as in this case, her
unconsciousness.20
At bottom then, the appellate court indulges in plain speculation, a practice disfavored under the rule on evidence in criminal cases. For,
mere speculations and probabilities cannot substitute for proof required to establish the guilt of an accused beyond reasonable doubt.21
In Perez vs. Court of Appeals,22 the Court acquitted therein petitioner of the crime of attempted rape, pointing out that:
xxx. In the crime of rape, penetration is an essential act of execution to produce the felony. Thus, for there to be an attempted rape, the
accused must have commenced the act of penetrating his sexual organ to the vagina of the victim but for some cause or accident other
than his own spontaneous desistance, the penetration, however, slight, is not completed.
xxx xxx xxx
Petitioners act of lying on top of the complainant, embracing and kissing her, mashing her breasts, inserting his hand inside her panty
and touching her sexual organ, while admittedly obscene and detestable acts, do not constitute attempted rape absent any showing
that petitioner actually commenced to force his penis into the complainants sexual organ. xxx.
Likewise in People vs. Pancho,23 the Court held:
xxx, appellant was merely holding complainants feet when his Tito Onio arrived at the alleged locus criminis. Thus, it would be
stretching to the extreme our credulity if we were to conclude that mere holding of the feet is attempted rape.
Lest it be misunderstood, the Court is not saying that petitioner is innocent, under the premises, of any wrongdoing whatsoever. The
information filed against petitioner contained an allegation that he forcefully covered the face of Malou with a piece of cloth soaked in
chemical. And during the trial, Malou testified about the pressing against her face of the chemical-soaked cloth and having struggled
after petitioner held her tightly and pinned her down. Verily, while the series of acts committed by the petitioner do not determine
attempted rape, as earlier discussed, they constitute unjust vexation punishable as light coercion under the second paragraph of Article
287 of the Revised Penal Code. In the context of the constitutional provision assuring an accused of a crime the right to be informed of
the nature and cause of the accusation, 24 it cannot be said that petitioner was kept in the dark of the inculpatory acts for which he was
proceeded against. To be sure, the information against petitioner contains sufficient details to enable him to make his defense. As aptly
observed by then Justice Ramon C. Aquino, there is no need to allege malice, restraint or compulsion in an information for unjust
vexation. As it were, unjust vexation exists even without the element of restraint or compulsion for the reason that this term is broad
enough to include any human conduct which, although not productive of some physical or material harm, would unjustly annoy or
irritate an innocent person.25 The paramount question is whether the offenders act causes annoyance, irritation, torment, distress or
disturbance to the mind of the person to whom it is directed. 26 That Malou, after the incident in question, cried while relating to her
classmates what she perceived to be a sexual attack and the fact that she filed a case for attempted rape proved beyond cavil that she
was disturbed, if not distressed by the acts of petitioner.
The penalty for coercion falling under the second paragraph of Article 287 of the Revised Penal Code is arresto menor or a fine ranging
from P5.00 to P200.00 or both.
WHEREFORE, the assailed Decision of the Court of Appeals affirming that of the Regional Trial Court of Manila, is hereby REVERSED
and SET ASIDE and a new one entered ACQUITTING petitioner Renato D. Baleros, Jr. of the charge for attempted rape. Petitioner,
however, is adjudged GUILTY of light coercion and is accordingly sentenced to 30 days of arresto menor and to pay a fine of P200.00,
with the accessory penalties thereof and to pay the costs.
SO ORDERED.
_______________________________________________________G.R. No. L-43530
August 3, 1935

THE
PEOPLE
OF
THE
PHILIPPINE
ISLANDS, plaintiff-appellee,
vs.
AURELIO LAMAHANG, defendant-appellant.
Honesto
K.
Bausa
for
appellant.
Office of the Solicitor-General Hilado for appellee.
RECTO, J.:
The defendant Aurelio Lamahang is before this court on appeal from a decision of the Court of First Instance of Iloilo, finding him guilty
of attempted robbery and sentencing him to suffer two years and four months of prision correccional and to an additional penalty of ten
years and one day of prision mayor for being an habitual delinquent, with the accessory penalties of the law, and to pay the costs of the
proceeding.
At early dawn on March 2, 1935, policeman Jose Tomambing, who was patrolling his beat on Delgado and C.R. Fuentes streets of the
City of Iloilo, caught the accused in the act of making an opening with an iron bar on the wall of a store of cheap goods located on the
last named street. At that time the owner of the store, Tan Yu, was sleeping inside with another Chinaman. The accused had only
succeeded in breaking one board and in unfastening another from the wall, when the policeman showed up, who instantly arrested him
and placed him under custody.
The fact above stated was considered and declared unanimously by the provincial fiscal of Iloilo, the trial judge and the SolicitorGeneral, as constituting attempted robbery, which we think is erroneous.
It is our opinion that the attempt to commit an offense which the Penal Code punishes is that which has a logical relation to a particular,
concrete offense; that, which is the beginning of the execution of the offense by overt acts of the perpetrator, leading directly to its
realization and consummation. The attempt to commit an indeterminate offense, inasmuch as its nature in relation to its objective is
ambiguous, is not a juridical fact from the standpoint of the Penal Code. There is no doubt that in the case at bar it was the intention of
the accused to enter Tan Yu's store by means of violence, passing through the opening which he had started to make on the wall, in
order to commit an offense which, due to the timely arrival of policeman Tomambing, did not develop beyond the first steps of its
execution. But it is not sufficient, for the purpose of imposing penal sanction, that an act objectively performed constitute a mere
beginning of execution; it is necessary to establish its unavoidable connection, like the logical and natural relation of the cause and its
effect, with the deed which, upon its consummation, will develop into one of the offenses defined and punished by the Code; it is
necessary to prove that said beginning of execution, if carried to its complete termination following its natural course, without being
frustrated by external obstacles nor by the voluntary desistance of the perpetrator, will logically and necessarily ripen into a concrete
offense. Thus, in case of robbery, in order that the simple act of entering by means of force or violence another person's dwelling may
be considered an attempt to commit this offense, it must be shown that the offender clearly intended to take possession, for the
purpose of gain, of some personal property belonging to another. In the instant case, there is nothing in the record from which such
purpose of the accused may reasonably be inferred. From the fact established and stated in the decision, that the accused on the day
in question was making an opening by means of an iron bar on the wall of Tan Yu's store, it may only be inferred as a logical conclusion
that his evident intention was to enter by means of force said store against the will of its owner. That his final objective, once he
succeeded in entering the store, was to rob, to cause physical injury to the inmates, or to commit any other offense, there is nothing in
the record to justify a concrete finding.1avvphil.et
It must be borne in mind (I Groizard, p. 99) that in offenses not consummated, as the material damage is wanting, the nature of the
action intended (accion fin) cannot exactly be ascertained, but the same must be inferred from the nature of the acts executed ( accion
medio). Hence, the necessity that these acts be such that by their very nature, by the facts to which they are related, by the
circumstances of the persons performing the same, and by the things connected therewith, they must show without any doubt, that they
are aimed at the consummation of a crime. Acts susceptible of double interpretation , that is, in favor as well as against the culprit, and
which show an innocent as well as a punishable act, must not and can not furnish grounds by themselves for attempted nor frustrated
crimes. The relation existing between the facts submitted for appreciation and the offense which said facts are supposed to produce
must be direct; the intention must be ascertained from the facts and therefore it is necessary, in order to avoid regrettable instances of
injustice, that the mind be able to directly infer from them the intention of the perpetrator to cause a particular injury. This must have
been the intention of the legislator in requiring that in order for an attempt to exist, the offender must commence the commission of the
felony directly by overt acts, that is to say, that the acts performed must be such that, without the intent to commit an offense, they
would be meaningless.
Viada (Vol. I, p. 47) holds the same opinion when he says that "the overt acts leading to the commission of the offense, are not
punished except when they are aimed directly to its execution, and therefore they must have an immediate and necessary relation to
the offense."
Considering says the Supreme Court of Spain in its decision of March 21, 1892 that in order to declare that such and such overt
acts constitute an attempted offense it is necessary that their objective be known and established, or that said acts be of such nature
that they themselves should obviously disclose the criminal objective necessarily intended, said objective and finality to serve as
ground for the designation of the offense: . . . .
In view of the foregoing, we are of the opinion, and so hold that the fact under consideration does not constitute attempted robbery but
attempted trespass to dwelling (People vs. Tayag and Morales, 59 Phil., 606, and decisions of the Supreme Court of Spain therein
cited). Under article 280 of the Revised Penal Code, this offense is committed when a private person shall enter the dwelling of another
against the latter's will. The accused may be convicted and sentenced for an attempt to commit this offense in accordance with the
evidence and the following allegation contained in the information: "... the accused armed with an iron bar forced the wall of said store
by breaking a board and unfastening another for the purpose of entering said store ... and that the accused did not succeed in entering
the store due to the presence of the policeman on beat Jose Tomambing, who upon hearing the noise produced by the breaking of the
wall, promptly approached the accused ... ." Under the circumstances of this case the prohibition of the owner or inmate is presumed.
(U.S. vs. Ostrea, 2 Phil., 93; U.S.vs. Silvano, 31 Phil., 509' U.S. vs. Ticson, 25 Phil., 67; U.S. vs. Mesina, 21 Phil., 615; U.S. vs.
Villanueva, 18 Phil., 215; U.S. vs. Panes, 25 Phil., 292.) Against the accused must be taken into consideration the aggravating
circumstances of nighttime and former convictions, inasmuch as the record shows that several final judgments for robbery and theft
have been rendered against him and in his favor, the mitigating circumstance of lack of instruction. The breaking of the wall should
not be taken into consideration as an aggravating circumstance inasmuch as this is the very fact which in this case constitutes the
offense of attempted trespass to dwelling.
The penalty provided by the Revised Penal Code for the consummated offense of trespass to dwelling, if committed with force,
is prision correccional in its medium and maximum periods and a fine not exceeding P1,000 (art. 280, par. 2); therefore the penalty
corresponding to attempted trespass to dwelling is to degrees lower (art. 51), or, arresto mayor in its minimum and medium periods.
Because of the presence of two aggravating circumstances and one mitigating circumstance the penalty must be imposed in its
maximum period. Pursuant to article 29 of the same Code, the accused is not entitled to credit for one-half of his preventive
imprisonment.
Wherefore, the sentence appealed from is revoked and the accused is hereby held guilty of attempted trespass to dwelling, committed
by means of force, with the aforesaid aggravating and mitigating circumstances and sentenced to three months and one day of arresto
mayor, with the accessory penalties thereof and to pay the costs.
G.R. No. L-36461 June 29, 1984
THE
PEOPLE
OF
THE
PHILIPPINES, plaintiff-appellee,
vs.
HERNANDO DIO, accused-appellant.
The Solicitor General for plaintiff-appellee.

Luis R. Feria for accused-appellant.

ABAD SANTOS, J.:
Automatic review of a decision of the defunct Circuit Criminal Court, 7th Judicial District, which imposed the death penalty.
An information for robbery with homicide was filed on October 1, 1971, against Danilo Tobias and a John Doe. The order to arrest
Tobias was returned unserved and he is still on the "Wanted Persons Files."
On December 7, 1971, the information was amended to name Hernando Dio as the John Doe, the appellant herein. As amended, the
information reads:
That on or about the 24th day of July 1971, in Pasay City, Philippines and within the jurisdiction of this Honorable Court, the abovenamed accused Danilo Tobias @ Danny Kulot and Hernando Dio @ Way Kaon, conspiring and confederating together and mutually
helping one another, with intent to gain and without the knowledge and consent of the owner, and with the use of 'balisong', one of the
accused was provided with, and by means of force, threats and intimidation employed upon the latter, did then and there wilfully,
unlawfully and feloniously take, steal and rob away from one Crispulo P. Alega, one Seiko brand men's wrist watch (recovered); and the
said accused in accordance with and pursuant to their conspiracy, and in order to carry out their avowed purpose, with intent to kill did
then and there wilfully, unlawfully and feloniously attack, assault and stab for several times Crispulo P. Alega, and which "balisong" was
directly aimed at the vital portions of the body of said Crispulo P. Alega, thus performing all the acts of execution causing his
instantaneous death. (Expediente, p. 68.)
Accused Hernando Dio pleaded not guilty when he was arraigned and after trial the court rendered the following judgment:
WHEREFORE, finding the accused, Hernando Dio, Guilty, beyond reasonable doubt, of the crime of Robbery with Homicide as defined
under Article 294 of the Revised Penal Code, as charged in the Amended Information, the Court hereby sentences him to suffer the
penalty of DEATH; to indemnify the heirs of the victim, Crispulo Alega the amount of P12,000.00; to pay moral damages in the amount
of P10,000.00 and another P10,000.00, as exemplary damages; and to pay the costs. (Id.,pp. 105-106.)
The People's version of the facts is as follows:
At about noontime on July 24, 1971, Crispulo Alega, a civil engineer by profession working at the Sugar Construction Company, with a
salary of more than P500.00 a month went to the Southeastern College, Pasay City to fetch his girlfriend, Remedios Maniti, a third year
high school student thereat (pp. 55, 59, 63-64, 11 1973). They proceeded to the Pasay City Public Market. As they were going up the
stairs leading to the Teresa and Sons Restaurant, Remedios, who was was about an arms-length ahead of Crispulo suddenly heard the
dropping of her folders and other things, being carried by Crispulo. When she looked back, she saw a man later Identified as Danilo
Tobias but still at large twisting the neck of Crispulo, while the appellant was holding his (Crispulo's) two hands (pp. 56-57, 61,
tsn., Id.). The appellant and his companion tried to divest Crispulo of his "Seiko" wrist watch, but Crispulo resisted their attempt and
fought the robbers. At this juncture, the man who was twisting the neck of Crispulo stabbed the latter on the left side of his chest.
Crispulo ran down the stairs followed by Remedies who shouted for help. When he reached the front of the Pasay Commercial Bank he
fell down and expired. At the time of his death, the "Seiko" watch was strapped to his wrist. (pp. 57-61, tsn., Id., pp. 7-9, tsn., Jan. 22,
1973).lwphl@it
An autopsy conducted on the victim's body by Dr. Ricardo Ibarola medicolegal officer of the NBI revealed that the cause of death was a
stab wound at the region below his left breast which penetrated the heart. Said doctor opined that judging from the natural appearance
of the stab wound, it must have been caused by a single-bladed pointed instrument (pp. 6, 13-14, tsn., Jan. 11, 1973; Exh. C and C-1,
p. 87, rec.). The necropsy report (Exh. A, p. 85, rec.) stated that the decease sustained the following injuries:
Abrasions: right zygomatic region, 0.6 x 0.4 infralabial region, right side 1.7 x 1.4 come forearm right, upper third, posterolateral aspect,
0.6 x 0.4 clean and left, lower third, posterior aspect, 0.4 x 0.2 come right knee, 0.6 x 0.4 come right leg, upper third, anterior aspect,
1.4 x 0.8
Incise wounds, neck, left supers-lateral aspect, two in number, 2.5 and 1.2 crime in lengths, both superficial
Stab wound: left inframammary region, level of the 5th intercostal space along the parasternal line, 6.0 cm. from the anterior midline,
0.5 crime below the left nipple, elliptical in shape, 3.0 cm. long extended laterally by 3.0 crime long rising slightly downwards, medially
edges, clean cut, sutured, medial extremity of which is blunt and lateral extremity, sharp; directed upwards, medially and backwards
involving, among others, the soft tissues, thru the 5th intercostal muscles, grazing the 6th rib superiorly, perforating the left pleural
cavity only, into the middle mediastinum by penetrating the pericardium antero-inferiorly, perforating the interventricular system and
penetrating the left ventricle of the heart at its apical portions, approximate depth 11.0 cm.
After the appellant's arrest on October 24, 1972, he was investigated at the Detective Bureau of the Pasay City Police Department and
gave a statement (Exh. D, p. 90, rec.) in the presence of Pat. Arturo Rimorin admitting that on the date and nine of the incident, he and
his co-accused, Danilo Tobias administrative Kardong Kaliwa alias Danny Kulot, held up a man and a woman; that they did not get the
watch of the man; that he held the victim's hands but the latter was able to free himself; that Danny Kulot stabbed the man, that when
the victim ran, they also ran away; and that he did not know what happened to the victim (Exhs. D, D-1, D-2, D-3, D-4 and D-5, p. 90,
rec.; pp. 27-3 1, tsn., Jan. 11, 1973). (Brief, pp. 2-6.)
Atty. Luis R. Feria, counsel de oficio of the appellant, states:
After a careful, considered and conscientious examination of the evidence adduced in the instant case, undersigned counsel is
constrained to conclude that the findings of fact of the trial court, upholding the version of the prosecution as against that of the
defense, must have to be sustained. As against the sole and uncorroborated testimony of appellant merely denying any participation in
the commission of the crime imputed to him (while admitting that he was present at the scene of the crime), there is a formidable array
of evidence against him consisting of the clear and convincing testimony of Remedios Maniti, who was in the company of the deceased
at the time he was killed and an eyewitness to the entire incident; the extra-judicial written confession of defendant-appellant (Exhibit D)
admitting participation in the commission of the crime; the testimony of Patrolman Arturo Rimorin who conducted the investigation of,
and before whom Exhibit D was executed and signed by, defendant- appellant, as well straight the testimony of Sgt. Geronimo de los
Santos of the Pasay Police to whom defendant-appellant orally admitted that he held the victim's hands although he had no part in the
actual stabbing of the deceased.
With respect to the testimony of the eyewitness Remedios Maniti there is absolutely nothing in the record (except perhaps that she was
the sweetheart of the deceased) to show, or even hint, that she had any reasons to perjure herself by falsely incriminating defendantappellant in such a grievous crime, no bias, interest or prejudice against the latter as would move or induce her to faithlessly accuse
him of a crime which he had not committed. More than ever, the time-honored ruling of this Honorable Court, too elemental to require
citations, that the findings of the trial court on the question of credibility of the witnesses, having had the advantage of observing their
demeanor and manner of testifying, should not be disturbed in the absence of strong and cogent reasons therefor, applies fully to the
case at bar. No such reasons can be found herein.
The same observations may be made with respect to the testimonies of Patrolman Rimorin and Sgt. de los Santos. Moreover, as has
been held by this Honorable Court, where the prosecution witnesses, being government employees who testified as to what transpired
in the performance of their duties, were neutral and disinterested and had no reason to falsely testify against the accused, and did not
subject him to any violence, torture or bodily harm, their testimonies should be given more weight than that of the accused (P. v. Pereto,
21 SCRA 1469: P. v. Del Castillo, 25 SCRA 716.)
Then there is the extrajudicial confession of defendant-appellant, Exhibit D. True it is that, belatedly during the trial, appellant claimed
that his answers appearing in Exhibit D were given because he was afraid as he was intimidated and struck on the buttock with a long
piece of wood (pp. 32-34, t.s.n. Ses. of January 22, 1973). It is submitted that this last-minute, desperate and uncorroborated claim falls
flat in the face not only of the presumption of voluntariness in the execution of confessions, but also of the testimony of Patrolman
Rimorin to the effect that Exhibit D was executed voluntarily and that defendant-appellant was never maltreated (pp. 26, 31-32, t.s.n.
Ses. of January 11, 1973), and the latter's own admission that before he signed Exhibit D, its contents were first read to him in Tagalog

and that he fully understood the same (pp. 24, t.s.n. Ses. of January 22, 1973), and his further admission that he has not filed any case
against those who had allegedly maltreated him (p. 33, t.s.n, Id.). Moreover, where the alleged confession reveals spontaneity of the
declarations belying the claim that they were concocted or dictated by the police, the court win reject the case that the confession was
involuntary (P. v. Castro, 11 SCRA 699).lwphl@it (Brief, pp. 3-5.)
Notwithstanding the foregoing factual admission, Atty. Feria makes the following assignment of errors:
1. THE TRIAL COURT ERRED IN CONVICTING DEFENDANT- APPELLANT OF THE SPECIAL COMPLEX CRIME OF ROBBERY
WITH HOMICIDE AS DEFINED AND PENALIZED UNDER ART. 294, PAR. 1, OF THE REVISED PENAL CODE.
2. EVEN ASSUMING THAT THE CRIME COMMITTED BY DEFENDANT-APPELLANT IS ROBBERY WITH HOMICIDE, THE TRIAL
COURT ERRED IN SENTENCING HIM TO SUFFER THE DEATH PENALTY.
We have scrutinized the record, particularly the testimonial evidence, and indeed there is no doubt that the appellant had a hand in the
death of Crispulo Alega. There remains to be considered, however, the claims of the appellant which are made in the assignment of
errors.
The appellant claims in his first assignment of error that he should not have been convicted of the special complex crime of robbery
with homicide because the robbery was not consummated. He states that there was only an attempted robbery.
The Solicitor General states:
... We are constrained to agree with defense' contention. The evidence adduced show that the appellant and his companion were
unsuccessful in their criminal venture of divesting the victim of his wrist watch so as to constitute the consummated crime of robbery.
Indeed, as adverted to earlier, when the victim expired, the 'Seiko' watch was still securely strapped to his wrist (p. 59, t.s.n., Jan. 11,
1973). The killing of Crispulo Alega may be considered as merely incidental to and an offshoot of the plan to carry out the robbery,
which however was not consummated because of the resistance offered by the deceased. Consequently, this case would properly
come under the provision of Art. 297 of the Revised Penal Code which states that
When by reason or on occasion of an attempted or frustrated robbery a homicide is committed, the person guilty of such offenses shall
be punished by reclusion temporal in its maximum period to reclusion perpetua, unless the homicide committed shall deserve a higher
penalty under the provisions of this Code. (Brief, pp. 5-6.)
In his second assignment of error the appellant claims that the information does not allege any aggravating circumstance nor was any
proved during the trial.
Again the Solicitor General states:
We likewise agree with the contention of counsel in his second assigned error that the evidence presented by the prosecution did not
show the attendance of any aggravating circumstance in the commands of the crime and neither did the court a quo make any finding
in this respect (pp. 7-8, appellant's brief). (Id, p. 6.)
The crime committed by the appellant is attempted robbery with homicide and the penalty prescribed by law is reclusion temporal in its
maximum period to reclusion perpetua. Since there was no attendant mitigating nor aggravating circumstance, the penalty should be
applied in its medium period, i.e. 18 years, 8 months and 1 day to 20 years. The Indeterminate Sentence Law has also to be applied.
WHEREFORE, the judgment of the trial court is hereby modified; the appellant is found guilty beyond reasonable doubt of the special
complex crime of attempted robbery with homicide and he is sentenced to suffer an indeterminate penalty of 10 years and 1 day
of prision mayor as minimum to 20 years of reclusion temporal as maximum, to indemnify the heirs of Crispulo Alega in the amount of
P30,000.00, and to pay one-half of the costs. SO ORDERED.
G.R. No. 79123-25 January 9, 1989
PEOPLE
OF
THE
PHILIPPINES, plaintiff-appellee,
vs.
EMELIANO TRINIDAD, accused-appellant.
The Solicitor General for plaintiff-appellee.
Citizens Legal Assistance Office for accused-appellant.
MELENCIO-HERRERA, J.:
On the sole issue that the adduced evidence is insufficient to prove his guilt beyond reasonable doubt of two crimes of Murder and one
of Frustrated Murder with which he has been charged, accused Emeliano Trinidad appeals from the judgment of the Regional Trial
Court, Branch 7, Bayugan, Agusan del Sur.
From the testimony of the principal witness, Ricardo TAN, the prosecution presents the following factual version:
The deceased victim, Lolito Soriano, was a fish dealer based in Davao City. His helpers were TAN, a driver, and the other deceased
victim Marcial LAROA. On 19 January 1983, using a Ford Fiera, they arrived at Butuan City to sell fish. In the morning of 20 January
1983 SORIANO drove the Fiera to Buenavista, Agusan del Norte, together with LAROA and a helper of one Samuel Comendador. TAN
was left behind in Butuan City to dispose of the fish left at the Langihan market. He followed SORIANO and LAROA, however, to
Buenavista later in the morning.
While at Buenavista, accused Emeliano TRINIDAD, a member of the Integrated National Police, assigned at Nasipit Police Station, and
residing at Baan, Butuan City, asked for a ride to Bayugan, Agusan del Sur, which is on the way to Davao City. TRINIDAD was in
uniform and had two firearms, a carbine, and the other, a side-arm .38 caliber revolver. SORIANO, LAROA, TAN, and TRINIDAD then
left Butuan on 20 January 1983 at about 5:20 P.M. bound for Davao City. TAN was driving the Fiera. Seated to his right was SORIANO,
LAROA and the accused TRINIDAD, in that order. When they reached the stretch between El Rio and Afga, TRINIDAD advised them to
drive slowly because, according to him, the place was dangerous. All of a sudden, TAN heard two gunshots. SORIANO and LAROA
slumped dead. TAN did not actually see the shooting of LAROA but he witnessed the shooting of SORIANO having been alerted by the
sound of the first gunfire. Both were hit on the head. TRINIDAD had used his carbine in killing the two victims.
TAN then hurriedly got off the Fiera, ran towards the direction of Butuan City and hid himself in the bushes. The Fiera was still running
slowly then but after about seven (7) to ten (10) meters it came to a halt after hitting the muddy side of the road. TAN heard a shot
emanating from the Fiera while he was hiding in the bushes.
After about twenty (20) to thirty (30) minutes, when a passenger jeep passed by, TAN hailed it and rode on the front seat. After a short
interval of time, he noticed that TRINIDAD was seated at the back. Apparently noticing TAN as well, TRINIDAD ordered him to get out
and to approach him (TRINIDAD) but, instead, TAN moved backward and ran around the jeep followed by TRINIDAD. When the jeep
started to drive away, TAN clung to its side. TRINIDAD fired two shots, one of which hit TAN on his right thigh. As another passenger
jeep passed by, TAN jumped from the first jeep and ran to the second. However, the passengers in the latter jeep told him to get out not
wanting to get involved in the affray. Pushed out, TAN crawled until a member of the P.C. chanced upon him and helped him board a
bus for Butuan City.
TRINIDAD's defense revolved around denial and alibi. He contended that he was in Cagayan de Oro City on the date of the incident, 20
January 1983. At that time, he was assigned as a policeman at Nasipit Police Station, Agusan del Norte. He reported to his post on 19
January 1983 but asked permission from his Station Commander to be relieved from work the next day, 20 January, as it was his
birthday. He left Baan, his Butuan City residence, at about 3:00 P.M. on 20 January 1983 and took a bus bound for Cagayan de Oro
City. He arrived at Cagayan de Oro at around 8:00 P.M. and proceeded to his sister's house at Camp Alagar to get his subsistence
allowance, as his sister was working thereat in the Finance Section.
At his sister's house he saw Sgt. Caalim, Mrs. Andoy, one Paelmo, in addition to his sister. Sgt. Caalim corroborated having seen
TRINIDAD then.
Continuing, TRINIDAD claimed that he left Cagayan de Oro for Butuan at lunch time on 21 January 1983 arriving at the latter place
around 6:00 P.M., and went to his house directly to get his service carbine. He was on his way to Nasipit to report for duty on 21
January 1983 when he was arrested at around 6:00 P.M. at Buenavista, Agusan del Norte.

After joint trial on the merits and unimpressed by the defense by the Trial Court** sentenced the accused in an "Omnibus Decision",
thus:
WHEREFORE PREMISES CONSIDERED, this Court finds Emeliano Trinidad GUILTY beyond reasonable doubt of the crimes of
Murder and Frustrated Murder.
In the Frustrated Murder, there being no mitigating circumstance, and taking into account the provisions of the Indeterminate Sentence
Law, accused Trinidad is meted out a penalty of:
1) 8 years and 1 day to 12 years of prision mayor medium;
2) to indemnify the complainant the amount of P 5,000.00; and
3) to pay the costs.
Likewise, in the two murder cases, Trinidad is accordingly sentenced:
1) to a penalty of Reclusion Perpetua in each case;
2) to indemnify the heirs of Marcial Laroa and Lolito Soriano the amount of P30,000.00 each; and
3) to pay the cost. (p. 14, RTC Decision, p. 28, Rollo).
Before us now, TRINIDAD claims that the Trial Court erred in giving full faith and credit to TAN's testimony who, TRINIDAD alleges, was
an unreliable witness. That is not so.
We find no variance in the statement made by TAN before the NAPOLCOM Hearing Officer that when TRINIDAD boarded the Fiera in
Buenavista, he (TAN) was not in the vehicle, and that made in open Court when he said that he was with TRINIDAD going to Butuan
City on board the Fiera. For the facts disclose that when TRINIDAD boarded the Fiera in Buenavista, TAN was still in Langihan
distributing fish. The Fiera left for Buenavista, driven by SORIANO between 6:00 to 7:00 A.M., while TAN followed only at 11:00, A.M. in
another vehicle. So that when TRINIDAD boarded the Fiera in Buenavista, TAN was not yet in that vehicle although on the return trip
from Butuan City to Davao City, TAN was already on board. In fact, TAN was the one driving. TAN's testimony clarifying this point reads:
Q Did you not say in your direct examination that you went to Buenavista, Agusan del Norte?
A We were in Langihan and since our fishes were not consumed there, we went to Buenavista.
Q Now, what time did you leave for Buenavista from Langihan?
A It was more or less at 6:00 to 7:00 o'clock.
Q You were riding the fish car which you said?
A I was not able to take the fish car in going to Buenavista because they left me fishes to be dispatched yet.
Q In other words, you did not go to Buenavista on January 20, 1983?
A I was able to go to Buenavista after the fishes were consumed.
Q What time did you go to Buenavista?
A It was more or less from 11:00 o'clock noon.
Q What transportation did you take?
A I just took a ride with another fish car because they were also going to dispatch fishes in Buenavista.
Q Now, who then went to Buenavista with the fish car at about 7:00 o'clock in the morning of January 20, 1983?
A Lolito Soriano and Marcia Laroa with his helper.
xxxxxx
Q Now, when this fish car returned to Butuan City who drove it?
A Lolito Soriano.
Q Were you with the fish car in going back to Langihan?
A Yes, sir. (T.S.N., December 6, 1985, pp. 53-54).
Felimon Comendador, also a fish vendor, and a resident of Butuan City, testified that he saw TRINIDAD riding in the Fiera on the front
seat in the company of TAN, SORIANO and LAROA, when the Fiera stopped by his house at Butuan City (TSN, November 5, 1985, pp.
32-33).
The other inconsistencies TRINIDAD makes much of, such as, that TAN was unsure before the NAPOLCOM Hearing Officer whether
TRINIDAD was wearing khaki or fatigue uniform but, in open Court, he testified positively that TRINIDAD was in khaki uniform; and that
while TAN declared that TRINIDAD was wearing a cap, prosecution witness Felimon Comendador said that he was not but was in
complete fatigue uniform, are actually trivial details that do not affect the positive identification of TRINIDAD that TAN has made nor
detract from the latter's overall credibility.
Nor is there basis for TRINIDAD to contend that the absence of gunpowder burns on the deceased victims negates TAN's claim that
they were shot "point-blank." Actually, this term refers merely to the "aim directed straight toward a target" (Webster's Third New
International Dictionary) and has no reference to the distance between the gun and the target. And in point of fact, it matters not how far
the assailant was at the time he shot the victims, the crucial factor being whether he did shoot the victim or not.
TRINIDAD's defense of alibi is inherently weak and cannot prevail over the straightforward and detailed descriptive narration of TAN,
thus:
Q Now, from Butuan City, where did you proceed?
A We proceeded to Davao.
Q Did you in fact reach Davao on that date?
A No, sir.
Q Could you tell the Court why you failed to reach Davao?
A Because we were held-up.
Q Who held-up you?
A Emeliano Trinidad, sir.
Q Are you referring to accused Emeliano Trinidad whom you pointed to the court awhile ago?
A Yes, sir.
Q Will you tell the Court how did Emeliano Trinidad holdup you?
A When we reach between El Rio and Afga, Trinidad advised us to run slowly because this place is dangerous. Then suddenly there
were two gun bursts.
Q Now, you heard two gun bursts. What happened? What did you see if there was any?
A I have found out that Lolito Soriano and Marcial Laroa already fall.
Q Fall dead?
A They were dead because they were hit at the head.
Q You mean to inform the Court that these two died because of that gun shot bursts?
A Yes, sir.
Q Did you actually see Trinidad shooting the two?
A I did not see that it was really Trinidad who shot Laroa but since I was already alerted by the first burst, I have seen that it was
Trinidad who shot Soriano.
Q What was the firearm used?
A Carbine, sir.
xxxxxx
Q Now, after you saw that the two fell dead, what did you do?
A I got out from the Ford Fiera while it was running.
xxxxxx
Q From the place where you were because you said you ran, what transpired next?

A I hid myself at the side of the jeep, at the bushes.

Q While hiding yourself at the bushes, what transpired?
A I heard one gun burst.
Q From what direction was that gun bursts you heard?
A From the Ford Fiera, sir.
Q After that, what happened?
A At around 20 to 30 minutes, I moved out from the place where I hid myself because I wanted to go back to Butuan, Then, I boarded
the jeep and sat at the front seat but I found out that Emeliano Trinidad was at the back seat.
Q When you found out that Trinidad was at the back, what happened?
A He ordered me to get out.
Q Now, when you got down, what happened?
A When I got out from the jeep, Trinidad also got out.
Q Tell the Court, what happened after you and Trinidad got out from the jeep?
A He called me because he wanted me to get near him.
Q What did you do?
A I moved backward.
'Q Now, what did Trinidad do?
A He followed me.
Q While Trinidad followed you, what happened?
A I ran away around the jeep.
Q Now, while you were running around the jeep, what happened?
A The driver drove the jeep.
Q Now, after that, what did you do?
A I ran after the jeep and then I was able to take the jeep at the side of it.
Q How about Trinidad, where was he at that time?
A He also ran, sir.
Q Now, when Trinidad ran after you what happened?
A Trinidad was able to catchup with the jeep and fired his gun.
Q Were you hit?
A At that time I did not know that I was hit because it was sudden.
Q When for the first time did you notice that you were hit?
A At the second jeep.
Q You mean to inform the Court that the jeep you first rode is not the very same jeep that you took for the second time?
A No, sir.
Q Now, when you have notice that you were hit, what did you do?
A At the first jeep that I took I was hit, so I got out from it and stood-up at the middle of the road so that I can catch up the other jeep.'
(TSN, December 6, 1985, pp. 44-49)
TAN's testimony remained unshaken even during cross- examination. No ill motive has been attributed to him to prevaricate the truth.
He was in the vehicle where the killing transpired was a witness to the actual happening, and was a victim himself who managed
narrowly to escape death despite the weaponry with which TRINIDAD was equipped.
The defense is correct, however, in contending that in the Frustrated Murder case, TRINIDAD can only be convicted of Attempted
Murder. TRINIDAD had commenced the commission of the felony directly by overt acts but was unable to perform all the acts of
execution which would have produced it by reason of causes other than his spontaneous desistance, such as, that the jeep to which
TAN was clinging was in motion, and there was a spare tire which shielded the other parts of his body. Moreover, the wound on his
thigh was not fatal and the doctrinal rule is that where the wound inflicted on the victim is not sufficient to cause his death, the crime is
only Attempted Murder, the accused not having performed all the acts of execution that would have brought about death (People vs.
Phones, L-32754-5, July 21, 1978, 84 SCRA 167; People vs. Garcia, L-40106, March 13, 1980, 96 SCRA 497).
But while the circumstances do spell out the two crimes of Murder, the penalty will have to be modified. For, with the abolition of capital
punishment in the 1987 Constitution, the penalty for Murder is now reclusion temporal in its maximum period to reclusion
perpetua (People vs. Lopez, et al. G.R. No. 71876-76, January 25, 1988 citing People vs. Gavarra, No. L-37673, October 30, 1987;
People vs. Masangkay, G.R. No. 73461, October 27, 1987). With no attending mitigating or aggravating circumstance, said penalty is
imposable in its medium period or from eighteen (18) years, eight (8) months and one (1) day to twenty (20) years. The penalty next
lower in degree for purposes of the Indeterminate Sentence Law is prision mayor, maximum, to reclusion temporal, medium, or from
ten (10) years and one (1) day to seventeen (17) years and four (4) months (Article 61, parag. 3, Revised Penal Code).
WHEREFORE, the guilt of the accused Emeliano Trinidad for the crimes of Murder (on two counts) and Attempted Murder, having been
proven beyond reasonable doubt, his conviction is hereby AFFIRMED and he is hereby sentenced as follows:
1) In each of Criminal Cases Nos. 79123-24 (Nos. 96 and 99 below) for Murder, he shall suffer the indeterminate penalty of ten (10)
years and one (1) day of prision mayor, as minimum, to eighteen (18) years, eight (8) months and one (1) day of reclusion temporal, as
maximum; to indemnify the heirs of Marcial Laroa and Lolito Soriano, respectively, in the amount of P30,000.00 each; and to pay the
costs.
2) In Criminal Case No. 79125 (No. 100 below) for Frustrated Murder, he is hereby found guilty only of Attempted Murder and
sentenced to an indeterminate penalty of six (6) months and one (1) day of prision correccional, as minimum, to six (6) years and one
(1) day of prision mayor, as maximum; to indemnify Ricardo Tan in the sum of P5,000,00; and to pay the costs.
SO ORDERED.
PEOPLE OF THE PHILIPPINES, plaintiff, vs. PRIMO CAMPUHAN Y BELLO, accused.
DECISION
BELLOSILLO, J.:
On 3 April 1990 this Court in People v. Orita[1] finally did away with frustrated rape[2] and allowed only attempted rape and consummated
rape to remain in our statute books. The instant case lurks at the threshold of another emasculation of the stages of execution of rape
by considering almost every attempt at sexual violation of a woman as consummated rape, that is, if the contrary view were to be
adopted. The danger there is that that concept may send the wrong signal to every roaming lothario, whenever the opportunity bares
itself, to better intrude with climactic gusto, sans any restraint, since after all any attempted fornication would be considered
consummated rape and punished as such. A mere strafing of the citadel of passion would then be considered a deadly fait accompli,
which is absurd.
In Orita we held that rape was consummated from the moment the offender had carnal knowledge of the victim since by it he attained
his objective. All the elements of the offense were already present and nothing more was left for the offender to do, having performed all
the acts necessary to produce the crime and accomplish it. We ruled then that perfect penetration was not essential; any penetration of
the female organ by the male organ, however slight, was sufficient. The Court further held that entry of the labia or lips of the female
organ, even without rupture of the hymen or laceration of the vagina, was sufficient to warrant conviction for consummated rape. We
distinguished consummated rape from attempted rape where there was no penetration of the female organ because not all acts of
execution were performed as the offender merely commenced the commission of a felony directly by overt acts. [3] The inference that
may be derived therefrom is that complete or full penetration of the vagina is not required for rape to be consummated. Any penetration,
in whatever degree, is enough to raise the crime to its consummated stage.

But the Court in Orita clarified the concept of penetration in rape by requiring entry into the labia or lips of the female organ, even if
there be no rupture of the hymen or laceration of the vagina, to warrant a conviction for consummated rape. While the entry of the penis
into the lips of the female organ was considered synonymous with mere touching of the external genitalia, e.g., labia majora, labia
minora, etc.,[4] the crucial doctrinal bottom line is that touching must be inextricably viewed in light of, in relation to, or as an essential
part of, the process of penile penetration, and not just mere touching in the ordinary sense. In other words, the touching must be tacked
to the penetration itself. The importance of the requirement of penetration, however slight, cannot be gainsaid because where entry into
the labia or the lips of the female genitalia has not been established, the crime committed amounts merely to attempted rape.
Verily, this should be the indicium of the Court in determining whether rape has been committed either in its attempted or in its
consummated stage; otherwise, no substantial distinction would exist between the two, despite the fact that penalty-wise, this
distinction, threadbare as it may seem, irrevocably spells the difference between life and death for the accused - a reclusive life that is
not even perpetua but only temporal on one hand, and the ultimate extermination of life on the other. And, arguing on another level, if
the case at bar cannot be deemed attempted but consummated rape, what then would constitute attempted rape? Must our field of
choice be thus limited only to consummated rape and acts of lasciviousness since attempted rape would no longer be possible in light
of the view of those who disagree with this ponencia?
On 27 May 1997 Primo Campuhan y Bello was found guilty of statutory rape and sentenced by the court a quo to the extreme penalty
of death,[5] hence this case before us on automatic review under Art. 335 of the Revised Penal Code as amended by RA 7659.[6]
As may be culled from the evidence on record, on 25 April 1996, at around 4 oclock in the afternoon, Ma. Corazon P. Pamintuan,
mother of four (4)-year old Crysthel Pamintuan, went down from the second floor of their house to prepare Milo chocolate drinks for her
two (2) children. At the ground floor she met Primo Campuhan who was then busy filling small plastic bags with water to be frozen into
ice in the freezer located at the second floor. Primo was a helper of Conrado Plata Jr., brother of Corazon. As Corazon was busy
preparing the drinks, she heard one of her daughters cry, "Ayo'ko, ayo'ko!"[7] prompting Corazon to rush upstairs. Thereupon, she saw
Primo Campuhan inside her childrens room kneeling before Crysthel whose pajamas or "jogging pants" and panty were already
removed, while his short pants were down to his knees.
According to Corazon, Primo was forcing his penis into Crysthels vagina. Horrified, she cursed the accused, "P - t - ng ina mo, anak ko
iyan!" and boxed him several times. He evaded her blows and pulled up his pants. He pushed Corazon aside when she tried to block
his path. Corazon then ran out and shouted for help thus prompting her brother, a cousin and an uncle who were living within their
compound, to chase the accused.[8] Seconds later, Primo was apprehended by those who answered Corazon's call for help. They held
the accused at the back of their compound until they were advised by their neighbors to call the barangay officials instead of detaining
him for his misdeed. Physical examination of the victim yielded negative results. No evident sign of extra-genital physical injury was
noted by the medico-legal officer on Crysthels body as her hymen was intact and its orifice was only 0.5 cm. in diameter.
Primo Campuhan had only himself for a witness in his defense. He maintained his innocence and assailed the charge as a mere
scheme of Crysthel's mother who allegedly harbored ill will against him for his refusal to run an errand for her. [9] He asserted that in truth
Crysthel was in a playing mood and wanted to ride on his back when she suddenly pulled him down causing both of them to fall down
on the floor. It was in this fallen position that Corazon chanced upon them and became hysterical. Corazon slapped him and accused
him of raping her child. He got mad but restrained himself from hitting back when he realized she was a woman. Corazon called for
help from her brothers to stop him as he ran down from the second floor.
Vicente, Corazon's brother, timely responded to her call for help and accosted Primo. Vicente punched him and threatened to kill him.
Upon hearing the threat, Primo immediately ran towards the house of Conrado Plata but Vicente followed him there. Primo pleaded for
a chance to explain as he reasoned out that the accusation was not true. But Vicente kicked him instead. When Primo saw Vicente
holding a piece of lead pipe, Primo raised his hands and turned his back to avoid the blow. At this moment, the relatives and neighbors
of Vicente prevailed upon him to take Primo to the barangay hall instead, and not to maul or possibly kill him.
Although Primo Campuhan insisted on his innocence, the trial court on 27 May 1997 found him guilty of statutory rape, sentenced him
to the extreme penalty of death, and ordered him to pay his victim P50,000.00 for moral damages, P25,000.00 for exemplary damages,
and the costs.
The accused Primo Campuhan seriously assails the credibility of Ma. Corazon Pamintuan. He argues that her narration should not be
given any weight or credence since it was punctured with implausible statements and improbabilities so inconsistent with human nature
and experience. He claims that it was truly inconceivable for him to commit the rape considering that Crysthels younger sister was also
in the room playing while Corazon was just downstairs preparing Milo drinks for her daughters. Their presence alone as possible
eyewitnesses and the fact that the episode happened within the family compound where a call for assistance could easily be heard and
responded to, would have been enough to deter him from committing the crime. Besides, the door of the room was wide open for
anybody to see what could be taking place inside. Primo insists that it was almost inconceivable that Corazon could give such a vivid
description of the alleged sexual contact when from where she stood she could not have possibly seen the alleged touching of the
sexual organs of the accused and his victim. He asserts that the absence of any external signs of physical injuries or of penetration of
Crysthels private parts more than bolsters his innocence.
In convicting the accused, the trial court relied quite heavily on the testimony of Corazon that she saw Primo with his short pants down
to his knees kneeling before Crysthel whose pajamas and panty were supposedly "already removed" and that Primo was "forcing his
penis into Crysthels vagina." The gravamen of the offense of statutory rape is carnal knowledge of a woman below twelve (12), as
provided in Art. 335, par. (3), of the Revised Penal Code. Crysthel was only four (4) years old when sexually molested, thus raising the
penalty, from reclusion perpetua to death, to the single indivisible penalty of death under RA 7659, Sec. 11, the offended party being
below seven (7) years old. We have said often enough that in concluding that carnal knowledge took place, full penetration of the
vaginal orifice is not an essential ingredient, nor is the rupture of the hymen necessary; the mere touching of the external genitalia by
the penis capable of consummating the sexual act is sufficient to constitute carnal knowledge. [10] But the act of touching should be
understood here as inherently part of the entry of the penis into the labias of the female organ and not mere touching alone of the mons
pubis or the pudendum.
In People v. De la Pea[11] we clarified that the decisions finding a case for rape even if the attackers penis merely touched the external
portions of the female genitalia were made in the context of the presence or existence of an erect penis capable of full penetration.
Where the accused failed to achieve an erection, had a limp or flaccid penis, or an oversized penis which could not fit into the victim's
vagina, the Court nonetheless held that rape was consummated on the basis of the victim's testimony that the accused repeatedly tried,
but in vain, to insert his penis into her vagina and in all likelihood reached the labia of her pudendum as the victim felt his organ on the
lips of her vulva,[12] or that the penis of the accused touched the middle part of her vagina.[13] Thus, touching when applied to rape cases
does not simply mean mere epidermal contact, stroking or grazing of organs, a slight brush or a scrape of the penis on the external
layer of the victims vagina, or the mons pubis, as in this case. There must be sufficient and convincing proof that the penis
indeed touched the labias or slid into the female organ, and not merely stroked the external surface thereof, for an accused to be
convicted of consummated rape.[14] As the labias, which are required to be "touched" by the penis, are by their natural situs or
location beneath the mons pubis or the vaginal surface, to touch them with the penis is to attain some degree of penetration beneath
the surface, hence, the conclusion that touching the labia majora or the labia minora of the pudendum constitutes consummated rape.
The pudendum or vulva is the collective term for the female genital organs that are visible in the perineal area, e.g., mons pubis, labia
majora, labia minora, the hymen, the clitoris, the vaginal orifice, etc. The mons pubis is the rounded eminence that becomes hairy after
puberty, and is instantly visible within the surface. The next layer is the labia majora or the outer lips of the female organ composed of
the outer convex surface and the inner surface. The skin of the outer convex surface is covered with hair follicles and is pigmented,
while the inner surface is a thin skin which does not have any hair but has many sebaceous glands. Directly beneath the labia majora is
the labia minora.[15] Jurisprudence dictates that the labia majora must beentered for rape to be consummated,[16] and not merely for the
penis to stroke the surface of the female organ. Thus, a grazing of the surface of the female organ or touching the mons pubis of

the pudendum is not sufficient to constitute consummated rape. Absent any showing of the slightest penetration of the female organ,
i.e., touching of either labia of the pudendumby the penis, there can be no consummated rape; at most, it can only be attempted rape, if
not acts of lasciviousness.
Judicial depiction of consummated rape has not been confined to the oft-quoted "touching of the female organ," [17] but has also
progressed into being described as "the introduction of the male organ into the labia of the pudendum,"[18] or "the bombardment of the
drawbridge."[19] But, to our mind, the case at bar merely constitutes a "shelling of the castle of orgasmic potency," or as earlier stated, a
"strafing of the citadel of passion."
A review of the records clearly discloses that the prosecution utterly failed to discharge its onus of proving that Primos penis was able to
penetrate Crysthels vagina however slight. Even if we grant arguendo that Corazon witnessed Primo in the act of sexually molesting
her daughter, we seriously doubt the veracity of her claim that she saw the inter-genital contact between Primo and Crysthel. When
asked what she saw upon entering her childrens room Corazon plunged into saying that she saw Primo poking his penis on the vagina
of Crysthel without explaining her relative position to them as to enable her to see clearly and sufficiently, in automotive lingo, the
contact point. It should be recalled that when Corazon chanced upon Primo and Crysthel, the former was allegedly in a kneeling
position, which Corazon described thus:
Q: How was Primo holding your daughter?
A: (The witness is demonstrating in such a way that the chest of the accused is pinning down the victim, while his right hand is holding
his penis and his left hand is spreading the legs of the victim).
It can reasonably be drawn from the foregoing narration that Primos kneeling position rendered an unbridled observation impossible.
Not even a vantage point from the side of the accused and the victim would have provided Corazon an unobstructed view of Primos
penis supposedly reaching Crysthels external genitalia, i.e., labia majora, labia minora, hymen, clitoris, etc., since the legs and arms of
Primo would have hidden his movements from Corazons sight, not to discount the fact that Primos right hand was allegedly holding his
penis thereby blocking it from Corazons view. It is the burden of the prosecution to establish how Corazon could have seen the sexual
contact and to shove her account into the permissive sphere of credibility. It is not enough that she claims that she saw what was done
to her daughter. It is required that her claim be properly demonstrated to inspire belief. The prosecution failed in this respect, thus we
cannot conclude without any taint of serious doubt that inter-genital contact was at all achieved. To hold otherwise would be to resolve
the doubt in favor of the prosecution but to run roughshod over the constitutional right of the accused to be presumed innocent.
Corazon insists that Primo did not restrain himself from pursuing his wicked intention despite her timely appearance, thus giving her the
opportunity to fully witness his beastly act.
We are not persuaded. It is inconsistent with mans instinct of self-preservation to remain where he is and persist in satisfying his lust
even when he knows fully well that his dastardly acts have already been discovered or witnessed by no less than the mother of his
victim. For, the normal behavior or reaction of Primo upon learning of Corazons presence would have been to pull his pants up to avoid
being caught literally with his pants down. The interval, although relatively short, provided more than enough opportunity for Primo not
only to desist from but even to conceal his evil design.
What appears to be the basis of the conviction of the accused was Crysthel's answer to the question of the court Q: Did the penis of Primo touch your organ?
A: Yes, sir.
But when asked further whether his penis penetrated her organ, she readily said, "No." Thus Q: But did his penis penetrate your organ?
A: No, sir.[20]
This testimony alone should dissipate the mist of confusion that enshrouds the question of whether rape in this case was
consummated. It has foreclosed the possibility of Primos penispenetrating her vagina, however slight. Crysthel made a categorical
statement denying penetration,[21] obviously induced by a question propounded to her who could not have been aware of the finer
distinctions between touching and penetration. Consequently, it is improper and unfair to attach to this reply of a four (4)-year old child,
whose vocabulary is yet as underdeveloped as her sex and whose language is bereft of worldly sophistication, an adult interpretation
that because the penis of the accused touched her organ there was sexual entry. Nor can it be deduced that in trying to penetrate the
victim's organ the penis of the accused touched the middle portion of her vagina and entered the labia of her pudendum as the
prosecution failed to establish sufficiently that Primo made efforts to penetrate Crysthel. [22] Corazon did not say, nay, not even hint that
Primo's penis was erect or that he responded with an erection. [23] On the contrary, Corazon even narrated that Primo had to hold his
penis with his right hand, thus showing that he had yet to attain an erection to be able to penetrate his victim.
Antithetically, the possibility of Primos penis having breached Crysthels vagina is belied by the child's own assertion that she resisted
Primos advances by putting her legs close together; [24]consequently, she did not feel any intense pain but just felt "not happy" about
what Primo did to her.[25] Thus, she only shouted "Ayo'ko, ayo'ko!" not "Aray ko, aray ko!" In cases where penetration was not fully
established, the Court had anchored its conclusion that rape nevertheless was consummated on the victim's testimony that she felt
pain, or the medico-legal finding of discoloration in the inner lips of the vagina, or the labia minora was already gaping with redness, or
the hymenal tags were no longer visible.[26] None was shown in this case. Although a child's testimony must be received with due
consideration on account of her tender age, the Court endeavors at the same time to harness only what in her story appears to be true,
acutely aware of the equally guaranteed rights of the accused. Thus, we have to conclude that even on the basis of the testimony of
Crysthel alone the accused cannot be held liable for consummated rape; worse, be sentenced to death.
Lastly, it is pertinent to mention the medico legal officer's finding in this case that there were no external signs of physical injuries on
complaining witness body to conclude from a medical perspective that penetration had taken place. As Dr. Aurea P. Villena explained,
although the absence of complete penetration of the hymen does not negate the possibility of contact, she clarified that there was no
medical basis to hold that there was sexual contact between the accused and the victim.[27]
In cases of rape where there is a positive testimony and a medical certificate, both should in all respects complement each other;
otherwise, to rely on the testimonial evidence alone, in utter disregard of the manifest variance in the medical certificate, would be
productive of unwarranted or even mischievous results. It is necessary to carefully ascertain whether the penis of the accused in reality
entered the labial threshold of the female organ to accurately conclude that rape was consummated. Failing in this, the thin line that
separates attempted rape from consummated rape will significantly disappear.
Under Art. 6, in relation to Art. 335, of the Revised Penal Code, rape is attempted when the offender commences the commission of
rape directly by overt acts, and does not perform all the acts of execution which should produce the crime of rape by reason of some
cause or accident other than his own spontaneous desistance. All the elements of attempted rape - and only of attempted rape - are
present in the instant case, hence, the accused should be punished only for it.
The penalty for attempted rape is two (2) degrees lower than the imposable penalty of death for the offense charged, which is statutory
rape of a minor below seven (7) years. Two (2) degrees lower is reclusion temporal, the range of which is twelve (12) years and one (1)
day to twenty (20) years. Applying the Indeterminate Sentence Law, and in the absence of any mitigating or aggravating circumstance,
the maximum of the penalty to be imposed upon the accused shall be taken from the medium period of reclusion temporal, the range of
which is fourteen (14) years, eight (8) months and (1) day to seventeen (17) years and four (4) months, while the minimum shall be
taken from the penalty next lower in degree, which is prision mayor, the range of which is from six (6) years and one (1) day to twelve
(12) years, in any of its periods.
WHEREFORE, the Decision of the court a quo finding accused PRIMO "SONNY" CAMPUHAN Y BELLO guilty of statutory rape and
sentencing him to death and to pay damages isMODIFIED. He is instead found guilty of ATTEMPTED RAPE and sentenced to an
indeterminate prison term of eight (8) years four (4) months and ten (10) days of prision mayor medium as minimum, to fourteen (14)
years ten (10) months and twenty (20) days of reclusion temporal medium as maximum. Costs de oficio.
SO ORDERED.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. AGAPITO LISTERIO y PRADO and SAMSON DELA TORRE y
ESQUELA, accused,
AGAPITO LISTERIO y PRADO, accused-appellant.
DECISION
YNARES-SANTIAGO, J.:
For the deadly assault on the brothers Jeonito Araque and Marlon Araque, Agapito Listerio y Prado, Samson dela Torre y Esquela,
Marlon dela Torre, George dela Torre, Bonifacio Bancaya and several others who are still at large were charged in two (2) separate
Amended Informations with Murder and Frustrated Murder.
In Criminal Case No. 91-5842 the Amended Information[1] for Murder alleges
That on or about the 11th day of August 1991 in the Municipality of Muntinlupa, Metro Manila, Philippines and within the jurisdiction of
this Honorable Court, the above-named accused, conspiring and confederating together and mutually helping and aiding one another,
all armed with bladed weapons and GI lead pipes, with intent to kill, treachery and evident premeditation with abuse of superior strength
did then and there willfully, unlawfully and feloniously attack, assault and stab one Jeonito Araque y Daniel at the back of his body,
thereby inflicting upon the latter mortal wounds which directly caused his death.
CONTRARY TO LAW.
In Criminal Case No. 91-5843, the Amended Information[2] for Frustrated Homicide charges:
That on or about the 14th day of May 1991 in the Municipality of Muntinlupa, Metro Manila, Philippines and within the jurisdiction this
Honorable Court, the above-named accused, conspiring, confederating together, mutually helping and aiding one another, with intent to
kill did then and there willfully, unlawfully and feloniously stab and hit with a lead pipe and bladed weapon one Marlon Araque y Daniel
on the vital portions of his body, thereby inflicting serious and mortal wounds which would have cause[d] the death of the said victim
thus performing all the acts of execution which should have produce[d] the crime of Homicide as a consequence but nevertheless did
not produce it by reason of causes independent of their will, that is by timely and able medical attendance rendered to said Marlon
Araque y Daniel which prevented his death.
CONTRARY TO LAW.
Upon arraignment, accused Agapito Listerio y Prado and Samson dela Torre y Esquela pleaded not guilty to the crimes charged. Their
other co-accused have remained at large.
Trial thereafter ensued after which the court a quo rendered judgment only against accused Agapito Listerio because his co-accused
Samson dela Torre escaped during the presentation of the prosecutions evidence and he was not tried in absentia. The dispositive
portion of the decision[3] reads:
WHEREFORE, finding Accused AGAPITO LISTERIO guilty beyond reasonable doubt, he is sentenced:
1. For the death of Jeonito Araque y Daniel in Criminal Case NO. 91-5842, RECLUSION PERPETUA;
2. For the attempt to kill Marlon Araque y Daniel, in Criminal Case No. 91-5843, he is sentenced to six (6) months and one (1) day as
minimum, to four (4) years as maximum;
3. As civil indemnity, he is ordered to indemnify the heirs of Jeonito Araque y Daniel the sum[s] of :
P54,200.66 as actual damages;
P50,000.00 as moral damages;
P5,000.00 as exemplary damages.
4. And for the damages sustained by Marlon Araque y Daniel, he is required to pay Marlon Araque y Daniel, the sum[s] of :
P5,000.00 as actual damages;
P5,000.00 as moral damages; and
P5,000.00 as exemplary damages
SO ORDERED.[4]
Dissatisfied, accused Agapito Listerio interposed this appeal alleging that
I
THE PROSECUTION EVIDENCE FAILED TO ESTABLISH THE GUILT OF THE ACCUSED BEYOND REASONABLE DOUBT.
II
THE COURT CONVICTED THE ACCUSED OF THE CRIME OF MURDER AND ATTEMPTED HOMICIDE DESPITE ABSENCE OF
PROOF OF CONSPIRACY AND AGGRAVATING CIRCUMSTANCE OF TREACHERY.
The version of the prosecution of what transpired on that fateful day of August 14, 1991 culled from the eyewitness account of Marlon
Araque discloses that at around 5:00 p.m. of August 14, 1991, he and his brother Jeonito were in Purok 4, Alabang, Muntinlupa to
collect a sum of money from a certain Tino. [5] Having failed to collect anything from Tino, Marlon and Jeonito then turned back.[6] On
their way back while they were passing Tramo near Tinos place, [7] a group composed of Agapito Listerio, Samson dela Torre, George
dela Torre, Marlon dela Torre and Bonifacio Bancaya[8] blocked their path[9] and attacked them with lead pipes and bladed weapons.[10]
Agapito Listerio, Marlon dela Torre and George dela Torre, who were armed with bladed weapons, stabbed Jeonito Araque from behind.
[11]
Jeonito sustained three (3) stab wounds on the upper right portion of his back, another on the lower right portion and the third on the
middle portion of the left side of his back [12] causing him to fall down.[13] Marlon Araque was hit on the head by Samson dela Torre and
Bonifacio Bancaya with lead pipes and momentarily lost consciousness.[14] When he regained his senses three (3) minutes later, he saw
that Jeonito was already dead. [15] Their assailants then fled after the incident. [16] Marlon Araque who sustained injuries in the arm and
back,[17] was thereafter brought to a hospital for treatment.[18]
Marlon Araque was examined by Dr. Salvador Manimtim, head of the Medico Legal Division of the UP-PGH, [19] who thereafter issued a
Medical Certificate[20] indicating that Marlon Araque sustained two (2) lacerated wounds, one measuring 5 centimeters in length located
in the center (mid-parietal area) of the ear.[21] The second lacerated wound measuring 2 centimeters in length is located at the midfrontal area commonly known as the forehead. [22] A third lacerated wound measuring 1.5 centimeters long is located at the
forearm[23] and a fourth which is a stab wound measuring 3 centimeters is located at the right shoulder at the collar.[24] Elaborating on the
nature of Marlon Araques injuries, Dr. Manimtim explained in detail during cross-examination that the two (2) wounds on the forearm
and the shoulder were caused by a sharp object like a knife while the rest were caused by a blunt instrument such as a lead pipe.[25]
Dr. Bievenido Munoz, NBI Medico Legal Officer conducted an autopsy on the cadaver of Jeonito Araque [26] and prepared an Autopsy
Report[27] of his findings. The report which contains a detailed description of the injuries inflicted on the victim shows that the deceased
sustained three (3) stab wounds all of them inflicted from behind by a sharp, pointed and single-bladed instrument like a kitchen
knife, balisong or any similar instrument.[28] The first stab wound, measuring 1.7 centimeters with an approximate depth of 11.0
centimeters, perforated the lower lobe of the left lung and the thoracic aorta.[29] Considering the involvement of a vital organ and a major
blood vessel, the wound was considered fatal. [30] The second wound, measuring 2.4 centimeters, affected the skin and underlying soft
tissues and did not penetrate the body cavity.[31] The third wound measuring 2.7 centimeters was like the second and involved only the
soft tissues.[32] Unlike the first, the second and third wounds were non-fatal. [33] Dr. Munoz averred that of the three, the first and second
wounds were inflicted by knife thrusts delivered starting below going upward by assailants who were standing behind the victim.[34]
On the other hand, accused-appellants version of the incident is summed thus in his brief:
1. Accused-appellant is 39 years old, married, side walk vendor and a resident of Purok 4, Bayanan, Muntinlupa, Metro Manila. He
earns a living by selling vegetables.[35]
2. At around 1:00 oclock in the afternoon of August 14, 1991, Accused-Appellant was in the store of Nimfa Agustin having a little fun
with Edgar Demolador and Andres Gininao drinking beer. At around 2:00 oclock Accused-appellant went to his house and slept.[36]
3. While asleep, at about 5 oclock, Edgar Remolador and Andres Gininao woke him up and told him there was a quarrel near the
railroad track.[37]

4. At around 6:00 oclock two (2) policemen passed by going to the house of Samson de la Torre while Accused-appellant was chatting
with Edgar Remolador and Andres Gininao. These two (2) policemen together with co-accused Samson de la Torre came back and
invited Accused-appellant for questioning at the Muntinlupa Police Headquarters together with Edgar Demolador and Andres
Gininao. Subsequently, Edgar Demolador and Andres Gininao were sent home.[38]
5. At the Police Station, Accused-Appellant was handed a Sinumpaang Salaysay executed by Marlon Araque, implicating him for the
death of Jeonito Araque and the frustrated murder of Marlon Araque. Accused-Appellant confronted Marlon Araque as to why he was
being included in the case. Marlon Araque answered because you eject[ed] us from your house.[39]
Professing his innocence, accused-appellant claims that Marlon Araques uncorroborated testimony failed to clearly and positively
identify him as the malefactor responsible for his brothers death. In fine, he insists that Marlons testimony is insufficient to convict him of
the crimes charged.
We disagree.
It is well settled that witnesses are to be weighed, not numbered, such that the testimony of a single, trustworthy and credible witness
could be sufficient to convict an accused. [40] More explicitly, the well entrenched rule is that the testimony of a lone eyewitness, if found
positive and credible by the trial court is sufficient to support a conviction especially when the testimony bears the earmarks of truth and
sincerity and had been delivered spontaneously, naturally and in a straightforward manner. It has been held that witnesses are to be
weighed not numbered; hence, it is not at all uncommon to reach a conclusion of guilt on the basis of the testimony of a single witness.
[41]

The trial court found Marlon Araques version of what transpired candid and straightforward. We defer to the lower courts findings on this
point consistent with the oft-repeated pronouncement that: the trial judge is the best and the most competent person who can weigh
and evaluate the testimony of witnesses. His firsthand look at the declarants demeanor, conduct and attitude at the trial places him in a
peculiar position to discriminate between the true and the false. Consequently appellate courts will not disturb the trial courts findings
save only in cases where arbitrariness has set in and disregard for the facts important to the case have been overlooked.[42]
The account of Marlon Araque as to how they were assaulted by the group of accused-appellant was given in a categorical, convincing
and straightforward manner:
Q Mr. Witness, do you know a certain Jeonito Araque y Daniel?
A Yes, sir.
Q And why do you know him?
A He is my brother.
Q Where is Jeonito Araque now?
A He is already dead.
Q When did he die?
A Last August 14.
Q Do you know of your own knowledge how he died?
A Yes, sir.
Q Will you please inform the Honorable Court what is your own knowledge?
A He was stabbed, sir.
Q Do you know the person or persons who stabbed him?
A Yes, sir.
Q Will you please inform the Honorable Court who are these person or persons, if you know?
A Its (sic) Agapito Listerio, Samson dela Torre, George dela Torre, Marlon dela Torre and Bonifacio.
Q Now if these persons [are] inside the courtroom, could you identify them?
A They (sic) are only two persons but the three persons is (sic) not around.
Q Could you please point to this Honorable Court who are these two persons in side the courtroom?
A Yes, sir (Witness pointing to a persons [sic] and when asked [identified themselves as] Agapito Listerio and Samson dela Torre.)
Q Now, at around 5:00 oclock in the afternoon of August 14, 1991, do you recall where were you?
A Yes, sir.
Q Will you please inform the Honorable Court where were you at that time?
A Im in Alabang at Purok 4 and Im collecting.
Q Do you have any companion at that time?
A Yes, sir.
Q What are you doing at that time in [that] particular date?
A Im collecting from a certain Tino.
Q Were you able to collect?
A No, sir.
Q If you said that there were no collections, what did you do?
A We went back.
Q When you went back, did you have any companion?
A Yes, sir.
Q Who was your companion?
A My brother.
Q While you were going back, was there any untoward incidents that happened?
A Yes sir Hinarang po kami.
Q Now, what particular place [where] you were waylaid, if you recall?
A In Tramo, near Tinos place.
Q And who were the persons that were waylaid (sic)?
A Agapito Listerio, Samson dela Torre, George dela Torre and Bonifacio.
Q Will you please inform the Honorable Court how will (sic) you waylaid by these persons?
A We were walking then suddenly they stabbed us with knife (sic) and ran afterwards.
Q Who were the persons that waylaid you?
A Agapito Listerio, George and Marlon.
Q How about your brother, what happened to him?
A He fall (sic) down.
Q And after he fall (sic) down, do you know what happened?
A I was hit by a lead pipe thats why I painted (sic).
Q Do you know the reason why your brother fall (sic) down?
A I cannot recall, sir. Because I already painted (sic).
Q Do you know the reason why your brother fall (sic) before you painted (sic)?
A Yes, sir.
Q Will you please inform the Honorable Court why your brother fall (sic) down?
xxx xxx xxx
A Yes, sir, because he was stabbed.
Q What particular place of his body was [he] stabbed if you know?
A At the back of his body.

Q Do you know the person or persons who was (sic) stabbed him?
A Yes, sir.
Q Will you please inform the Honorable Court who was that persons was stabbed him?
A Agapito, Marlon and George.
COURT
How many stabbed [him], if you know?
A Three (3), sir.
COURT
In what particular part of his body was stabbed wound (sic)?
A Witness pointing to his back upper right portion of the back, another on the lower right portion and another on the middle portion of
the left side at the back.
COURT
Proceed.
Q Will you please inform the Honorable Court why you are (sic) lost consciousness?
A I was hit by [a] lead pipe by Samson and Bonifacio.
Q And when did you regain consciousness?
A After three minutes.
Q And when you gain[ed] consciousness, what happened to your brother?
A He was already dead.
Q How about you, what did you do?
A I go (sic) to the Hospital.
Q How about the accused, the persons who way laid, what happened to them?
A From what I know, they ran away.[43]
Persistent efforts by defense counsel to establish that the attack was provoked, by eliciting from Marlon Araque an admission that he
and the deceased had a drinking spree with their attackers prior to the incident, proved futile as Marlon steadfastly maintained on cross
examination that he and his brother never drank liquor on that fateful day:
Q After your work, was there an occasion when you drink something with your borther (sic)?
A No, sir.
Q And you stand to your testimony that you never drink (sic) on August 14, 1991?
A Yes, sir.
Q Were (sic) there no occasion on August 14, 1991 when you visited Sonny Sari-Sari Store at 4:00 p.m. on August 14, 1991?
A No, sir.
Q And did you not have a drinking spree with George dela Torre?
A No, sir.
Q Marlon dela Torre?
A No, sir.
Q Bonifacio?
A With your borther (sic)?
Q So you want to tell this Honorable Court that there was no point in time on August 14, 1991 at 4:00 p.m. that you did not take a sip of
wine?
A No, sir.
Q Neither your brother?
Atty. Agoot
Objection, Your Honor, the question is vague.
COURT
Ask another question.
Q Mr. Witness, will you please tell the Honorable Court where this George dela Torre, Marlon dela Torre and a certain Bonifacio were?
Atty. Agoot
Witness is incompetent.
Q Mr. Witness, you testified that it was your brother the deceased who invited you to Purok 4?
A Yes, sir.
Atty. Lumakang
That will be all for the witness, your Honor.[44]
That Marlon was able to recognize the assailants can hardly be doubted because relatives of the victim have a natural knack for
remembering the faces of the attackers and they, more than anybody else, would be concerned with obtaining justice for the victim by
the felons being brought to the face of the law.[45] Indeed, family members who have witnessed the killing of a loved one usually strive to
remember the faces of the assailants.[46] Marlons credibility cannot be doubted in this case because as a victim himself and an
eyewitness to the incident, it can be clearly gleaned from the foregoing excerpts of his testimony that he remembered with a high
degree of reliability the identity of the malefactors.[47]
Likewise, there is no showing that he was motivated by any ill-feeling or bad blood to falsely testify against accused-appellant. Being a
victim himself, he is expected to seek justice. It is settled that if the accused had nothing to do with the crime, it would be against the
natural order of events to falsely impute charges of wrongdoing upon him. [48] Accused-appellant likewise insists on the absence of
conspiracy and treachery in the attack on the victims.
We remain unconvinced.
It must be remembered that direct proof of conspiracy is rarely found for criminals do not write down their lawless plans and plots.
[49]
Conspiracy may be inferred from the acts of the accused before, during and after the commission of the crime which indubitably
point to and are indicative of a joint purpose, concert of action and community of interest.[50] Indeed
A conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit
it. To establish the existence of a conspiracy, direct proof is not essential since it may be shown by facts and circumstances from which
may be logically inferred the existence of a common design among the accused to commit the offense charged, or it may be deduced
from the mode and manner in which the offense was perpetrated.[51]
More explicitly
conspiracy need not be established by direct evidence of acts charged, but may and generally must be proved by a number of indefinite
acts, conditions and circumstances, which vary according to the purpose accomplished. Previous agreement to commit a crime is not
essential to establish a conspiracy, it being sufficient that the condition attending to its commission and the acts executed may be
indicative of a common design to accomplish a criminal purpose and objective. If there is a chain of circumstances to that effect,
conspiracy can be established.[52]
Thus, the rule is that conspiracy must be shown to exist by direct or circumstantial evidence, as clearly and convincingly as the crime
itself.[53] In the absence of direct proof thereof, as in the present case, it may be deduced from the mode, method, and manner by which
the offense was perpetrated, or inferred from the acts of the accused themselves when such acts point to a joint purpose and design,
concerted action and community of interest.[54] Hence, it is necessary that a conspirator should have performed some overt acts as a
direct or indirectcontribution in the execution of the crime planned to be committed. The overt act may consist of active participation in

the actual commission of the crime itself, or it may consist of moral assistance to his con-conspirators by being present at the
commission of the crime or by exerting moral ascendancy over the other co-conspirators.[55]
Conspiracy transcends mere companionship, it denotes an intentional participation in the transaction with a view to the furtherance of
the common design and purpose.[56] Conspiracy to exist does not require an agreement for an appreciable period prior to the
occurrence.[57] From the legal standpoint, conspiracy exists if, at the time of the commission of the offense, the accused had the same
purpose and were united in its execution.[58] In this case, the presence of accused-appellant and his colleagues, all of them armed with
deadly weapons at the locus criminis, indubitably shows their criminal design to kill the victims.
Nowhere is it more evident than in this case where accused-appellant and his cohorts blocked the path of the victims and as a group
attacked them with lead pipes and bladed weapons. Accused-appellant and his companions acted in concert during the assault on the
victims. Each member of the group performed specific and coordinated acts as to indicate beyond doubt a common criminal design or
purpose.[59] Thus, even assuming arguendo that the prosecution eyewitness may have been unclear as to who delivered the fatal blow
on the victim, accused-appellant as a conspirator is equally liable for the crime as it is unnecessary to determine who inflicted the fatal
wound because in conspiracy, the act of one is the act of all.[60]
As to the qualifying circumstances here present, the treacherous manner in which accused-appellant and his group perpetrated the
crime is shown not only by the sudden and unexpected attack upon the unsuspecting and apparently unarmed victims but also by the
deliberate manner in which the assault was perpetrated. In this case, the accused-appellant and his companions, all of them armed
with bladed weapons and lead pipes, blocked (hinarang) the path of the victims effectively cutting off their escape. [61] In the ensuing
attack, the deceased was stabbed three (3) times from behind by a sharp, pointed and single-bladed instrument like a kitchen
knife, balisong or similar instrument[62] while Marlon Araque sustained lacerated wounds in the head caused by blows inflicted by lead
pipes as well as stab wounds on the shoulder and forearm which were caused by a sharp object like a knife.[63]
It must be noted in this regard that the manner in which the stab wounds were inflicted on the deceased were clearly meant to kill
without posing any danger to the malefactors considering their locations and the fact that they were caused by knife thrusts starting
below going upward by assailants who were standing behind the victim. [64] Treachery is present when the offender commits any of the
crimes against persons employing means, methods or forms in the execution thereof which tend directly and specially to insure its
execution, without risk to himself arising from the defense which the offended party might make. [65] That circumstance qualifies the
crime into murder.
The commission of the crime was also attended by abuse of superior strength on account of the fact that accused-appellant and his
companions were not only numerically superior to the victims but also because all of them, armed with bladed weapons and lead pipes,
purposely used force out of proportion to the means of defense available to the persons attacked.However, this aggravating
circumstance is already absorbed in treachery.[66] Furthermore, although alleged in the information, evident premeditation was not
proved by the prosecution. In the light of the finding of conspiracy, evident premeditation need not be further appreciated, absent
concrete proof as to how and when the plan to kill was hatched or what time had elapsed before it was carried out.[67]
In stark contrast to the evidence pointing to him as one of the assailants of the victims, accused-appellant proffers the defense of
alibi. At the risk of sounding trite, it must be remembered that alibi is generally considered with suspicion and always received with
caution because it can be easily fabricated. [68] For alibi to serve as a basis for acquittal, the accused must establish that: a.] he was
present at another place at the time of the perpetration of the offense; and b.] it would thus be physically impossible for him to have
been at the scene of the crime.[69]
Suffice it to state that accused-appellant failed to discharge this burden. The positive identification of the accused as one of the
perpetrators of the crime by the prosecution eyewitness, absent any showing of ill-motive, must prevail over the weak and obviously
fabricated alibi of accused-appellant.[70] Furthermore, as aptly pointed out by the trial court [t]he place where the accused was at the
time of the killing is only 100 meters away. The distance of his house to the place of the incident makes him physically possible to be a
participant in the killing [of Jeonito] and [the] wounding of Marlon.[71]
All told, an overall scrutiny of the records of this case leads us to no other conclusion than that accused-appellant is guilty as charged
for Murder in Criminal Case No. 91-5842.
In Criminal Case No. 91-5843, wherein accused-appellant was indicted for Frustrated Homicide, the trial court convicted accusedappellant of Attempted Homicide only on the basis of Dr. Manimtims testimony that none of the wounds sustained by Marlon Araque
were fatal.
The reasoning of the lower court on this point is flawed because it is not the gravity of the wounds inflicted which determines whether a
felony is attempted or frustrated but whether or not the subjective phase in the commission of an offense has been passed. By
subjective phase is meant [t]hat portion of the acts constituting the crime included between the act which begins the commission of the
crime and the last act performed by the offender which, with the prior acts, should result in the consummated crime. From that time
forward, the phase is objective. It may also be said to be that period occupied by the acts of the offender over which he has control that
period between the point where he begins and the point where hevoluntarily desists. If between these two points the offender is
stopped by reason of any cause outside of his own voluntary desistance, the subjective phase has not been passed and it is an
attempt. If he is not so stopped but continues until he performs the last act, it is frustrated.[72]
It must be remembered that a felony is frustrated when: 1.] the offender has performed all the acts of execution which would produce
the felony; 2.] the felony is not produced due to causes independent of the perpetrators will. [73] On the other hand, in an attempted
felony: 1.] the offender commits overt acts to commence the perpetration of the crime; 2.] he is not able to perform all the acts of
execution which should produce the felony; and 3.] his failure to perform all the acts of execution was due to some cause or accident
other than his spontaneous desistance.[74] The distinction between an attempted and frustrated felony was lucidly differentiated thus in
the leading case of U.S. v. Eduave:[75]
A crime cannot be held to be attempted unless the offender, after beginning the commission of the crime by overt acts, is prevented,
against his will, by some outside cause from performing all of the acts which should produce the crime. In other words, to be an
attempted crime the purpose of the offender must be thwarted by a foreign force or agency which intervenes and compels him to stop
prior to the moment when he has performed all of the acts which should produce the crime as a consequence, which acts it is his
intention to perform. If he has performed all the acts which should result in the consummation of the crime and voluntarily desists from
proceeding further, it cannot be an attempt. The essential element which distinguishes attempted from frustrated felony is that, in the
latter, there is no intervention of a foreign or extraneous cause or agency between the beginning of the commission of crime and the
moment when all the acts have been performed which should result in the consummated crime; while in the former there is such
intervention and the offender does not arrive at the point of performing all of the acts which should produce the crime. He is stopped
short of that point by some cause apart from his voluntary desistance.
To put it another way, in case of an attempt the offender never passes the subjective phase of the offense. He is interrupted and
compelled to desist by the intervention of outside causes before the subjective phase is passed.
On the other hand, in case of frustrated crimes, the subjective phase is completely passed. Subjectively the crime is complete. Nothing
interrupted the offender while he was passing through the subjective phase. The crime, however, is not consummated by reason of the
intervention of causes independent of the will of the offender. He did all that was necessary to commit the crime. If the crime did not
result as a consequence it was due to something beyond his control.
In relation to the foregoing, it bears stressing that intent to kill determines whether the infliction of injuries should be punished as
attempted or frustrated murder, homicide, parricide or consummated physical injuries. [76] Homicidal intent must be evidenced by acts
which at the time of their execution are unmistakably calculated to produce the death of the victim by adequate means. [77] Suffice it to
state that the intent to kill of the malefactors herein who were armed with bladed weapons and lead pipes can hardly be doubted given
the prevailing facts of the case. It also can not be denied that the crime is a frustrated felony not an attempted offense considering that

after being stabbed and clubbed twice in the head as a result of which he lost consciousness and fell, Marlons attackers apparently
thought he was already dead and fled.
An appeal in a criminal case throws the whole case wide open for review [78] and the reviewing tribunal can correct errors, though
unassigned in the appealed judgement[79] or even reverse the trial courts decision on the basis of grounds other than those that the
parties raised as errors.[80] With the foregoing in mind, we now address the question of the proper penalties to be imposed.
With regard to the frustrated felony, Article 250 of the Revised Penal Code provides that
ART. 250. Penalty for frustrated parricide, murder, or homicide. The courts, in view of the facts of the case, may impose upon the
person guilty of the frustrated crime of parricide, murder or homicide, defined and penalized in the preceding articles, a penalty lower by
one degree than that which should be imposed under the provisions of article 50.[81]
The courts, considering the facts of the case, may likewise reduce by one degree the penalty which under article 51 should be imposed
for an attempt to commit any of such crimes.
The penalty for Homicide is reclusion temporal[82] thus, the penalty one degree lower would be prision mayor.[83] With the presence of
the aggravating circumstance of abuse of superior strength and no mitigating circumstances, the penalty is to be imposed in its
maximum period.[84] Prision mayor in its maximum period ranges from ten (10) years and one (1) day to twelve (12) years. Applying
further the Indeterminate Sentence Law,[85] the minimum of the imposable penalty shall be within the range of the penalty next lower in
degree, i.e. prision correccional in its maximum period which has a range of six (6) months and one (1) day to six (6) years.
What now remains to be determined is the propriety of the awards made by the trial court with regard to the civil aspect of the case for
the death of Jeonito Araque and the injuries sustained by Marlon Araque.
Anent actual or compensatory damages, it bears stressing that only substantiated and proven expenses or those which appear to have
been genuinely incurred in connection with the death, wake or burial of the victim will be recognized by the courts. [86] In this case, the
expenses incurred for the wake, funeral and burial of the deceased are substantiated by receipts. [87]The trial courts award for actual
damages for the death of Jeonito Araque should therefore be affirmed.
In line with current jurisprudence,[88] the award of P50,000.00 as civil indemnity ex delicto must also be sustained as it requires no proof
other than the fact of death of the victim and the assailants responsibility therefor. [89] The award for moral damages for the pain and
sorrow suffered by the victims family in connection with his untimely death must likewise be affirmed.The award is adequate,
reasonable and with sufficient basis taking into consideration the anguish and suffering of the deceaseds family particularly his mother
who relied solely upon him for support. [90] The award of exemplary damages should likewise be affirmed considering that an
aggravating circumstance attended the commission of the crime.[91]
The trial court, however, correctly ignored the claim for loss of income or earning capacity of the deceased for lack of factual basis. The
estimate given by the deceaseds sister on his alleged income as a pre-cast businessman is not supported by competent evidence like
income tax returns or receipts. It bears emphasizing in this regard that compensation for lost income is in the nature of damages [92] and
as such requires due proof thereof. [93] In short, there must be unbiased proof of the deceaseds average income. [94] In this case, the
victims sister merely gave an oral, self-serving and hence unreliable statement of her deceased brothers income.
As for the awards given to Marlon Araque, the award for actual damages must be affirmed as the same is supported by documentary
evidence.[95] With regard to moral and exemplary damages, the same being distinct from each other require separate determination.
[96]
The award for moral damages must be struck down as the victim himself did not testify as to the moral suffering he sustained as a
result of the assault on his person. For lack of competent proof such an award is improper. [97] The award for exemplary damages must,
however, be retained considering that under Article 2230 of the Civil Code, such damages may be imposed when the crime is
committed with one or more aggravating circumstances.[98]
Finally, this Court has observed that the trial court did not render judgment against accused Samson dela Torre, notwithstanding that he
was arraigned and pleaded not guilty to both charges. Under the circumstances, he should be deemed to have been tried in
absentia and, considering the evidence presented by the prosecution against him, convicted of the crime charged together with
appellant Agapito Listerio.
WHEREFORE, the appealed decision is AFFIRMED with the following MODIFICATIONS:
1.] the award of P5,000.00 to Marlon Araque by way of moral damages in Criminal Case No. 91-5843 is DELETED;
2.] Accused-Appellant is found GUILTY beyond reasonable doubt in Criminal Case No. 91-5843 of Frustrated Homicide and is
sentenced to suffer an indeterminate penalty of Six (6) Years of Prision Correccional, as minimum to Ten (10) Years and One (1) Day
of Prision Mayor, as maximum.
After finality of this Decision, the records shall be remanded to the Regional Trial Court of Makati City, which is directed to render
judgment based on the evidence against Samson dela Torre y Esquela.
SO ORDERED.
ESMERALDO RIVERA, ISMAEL G.R. No. 166326
RIVERA, EDGARDO RIVERA,
Petitioners, Present:
PANGANIBAN, C.J., Chairperson,
YNARES-SANTIAGO,
AUSTRIA-MARTINEZ,
- versus - CALLEJO, SR., and
CHICO-NAZARIO, JJ.
Promulgated:
PEOPLE OF THE PHILIPPINES,
Respondent. January 25, 2006
x--------------------------------------------------x
DECISION
CALLEJO, SR., J.:
This is a petition for review of the Decision [1] of the Court of Appeals (CA) in CA-G.R. CR No. 27215 affirming, with modification, the
Decision[2] of the Regional Trial Court (RTC) of Cavite, Branch 90, in Criminal Case No. 6962-99, entitled People of the Philippines. v.
Esmeraldo Rivera, et al.
On April 12, 1999, an Information was filed in the RTC of Imus, Cavite, charging Esmeraldo, Ismael and Edgardo, all surnamed Rivera,
of attempted murder. The accusatory portion of the Information reads:

That on or about the 3rd day of May 1998, in the Municipality of Dasmarias, Province of Cavite, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused, conspiring, confederating and mutually helping one another, with intent to kill, with
treachery and evident premeditation, did then and there, wilfully, unlawfully, and feloniously attack, assault and hit with a piece of hollow
block, one RUBEN RODIL who thereby sustained a non-mortal injury on his head and on the different parts of his body, the accused
thus commenced the commission of the felony directly by overt acts, but failed to perform all the acts of execution which would produce
the crime of Murder by reason of some causes other than their own spontaneous desistance, that is, the said Ruben Rodil was able to
ran (sic) away and the timely response of the policemen, to his damage and prejudice.
CONTRARY TO LAW.[3]
Ruben Rodil testified that he used to work as a taxi driver. He stopped driving in April 1998 after a would-be rapist threatened his life.
He was even given a citation as aBayaning Pilipino by the television network ABS-CBN for saving the would-be victim. His wife eked
out a living as a manicurist. They and their three children resided in Barangay San Isidro Labrador II, Dasmarias, Cavite, near the
house of Esmeraldo Rivera and his brothers Ismael and Edgardo.
At noon of May 2, 1998, Ruben went to a nearby store to buy food. Edgardo mocked him for being jobless and dependent on his wife
for support. Ruben resented the rebuke and hurled invectives at Edgardo. A heated exchange of words ensued.
At about 7:30 p.m. the next day, a Sunday, Ruben went to the store to buy food and to look for his wife. His three-year-old daughter was
with him. Momentarily, Esmeraldo and his two brothers, Ismael and Edgardo, emerged from their house and ganged up on Ruben.
Esmeraldo and Ismael mauled Ruben with fist blows and he fell to the ground. In that helpless position, Edgardo hit Ruben three times
with a hollow block on the parietal area. Esmeraldo and Ismael continued mauling Ruben. People who saw the incident
shouted: Awatin sila! Awatin sila! Ruben felt dizzy but managed to stand up. Ismael threw a stone at him, hitting him at the back. When
policemen on board a mobile car arrived, Esmeraldo, Ismael and Edgardo fled to their house.
Ruben was brought to the hospital. His attending physician, Dr. Lamberto Cagingin, Jr., signed a medical certificate in which he
declared that Ruben sustained lacerated wounds on the parietal area, cerebral concussion or contusion, hematoma on the left upper
buttocks, multiple abrasions on the left shoulder and hematoma periorbital left. [4] The doctor declared that the lacerated wound in the
parietal area was slight and superficial and would heal from one to seven days. [5] The doctor prescribed medicine for Rubens back pain,
which he had to take for one month.[6]
Esmeraldo testified that at around 1:00 p.m. on May 3, 1998, Ruben arrived at his house and banged the gate. Ruben challenged him
and his brothers to come out and fight. When he went out of the house and talked to Ruben, the latter punched him. They wrestled with
each other. He fell to the ground. Edgardo arrived and pushed Ruben aside. His wife arrived, and he was pulled away and brought to
their house.
For his part, Ismael testified that he tried to pacify Ruben and his brother Esmeraldo, but Ruben grabbed him by the hair. He managed
to free himself from Ruben and the latter fled. He went home afterwards. He did not see his brother Edgardo at the scene.
Edgardo declared that at about 1:00 p.m. on May 3, 1998, he was throwing garbage in front of their house. Ruben arrived and he went
inside the house to avoid a confrontation. Ruben banged the gate and ordered him to get out of their house and even threatened to
shoot him. His brother Esmeraldo went out of their house and asked Ruben what the problem was. A fist fight ensued. Edgardo rushed
out of the house and pushed Ruben aside. Ruben fell to the ground. When he stood up, he pulled at Edgardos shirt and hair, and, in
the process, Rubens head hit the lamp post.[7]
On August 30, 2002, the trial court rendered judgment finding all the accused guilty beyond reasonable doubt of frustrated murder. The
dispositive portion of the decision reads:
WHEREFORE, premises considered, all the accused are found GUILTY beyond reasonable doubt and are sentenced to an
imprisonment of six (6) years and one (1) day to eight (8) years ofprision mayor as the prosecution has proved beyond reasonable
doubt the culpability of the accused. Likewise, the accused are to pay, jointly and severally, civil indemnity to the private complainant in
the amount of P30,000.00.
SO ORDERED.[8]
The trial court gave no credence to the collective testimonies of the accused and their witnesses. The accused appealed to the CA,
which rendered judgment on June 8, 2004affirming, with modification, the appealed decision. The dispositive portion of the CA decision
reads:
WHEREFORE, the Decision of the Regional Trial Court of Imus, Cavite, Branch 90, is MODIFIED in that the appellants are convicted of
ATTEMPTED MURDER and sentenced to an indeterminate penalty of 2 years of prision correccional as minimum to 6 years and 1 day
of prision mayor as maximum. In all other respects, the decision appealed from is AFFIRMED.
SO ORDERED.[9]
The accused, now petitioners, filed the instant petition for review on certiorari, alleging that the CA erred in affirming the RTC decision.
They insist that the prosecution failed to prove that they had the intention to kill Ruben when they mauled and hit him with a hollow
block. Petitioners aver that, based on the testimony of Dr. Cagingin, Ruben sustained only a superficial wound in the parietal area;
hence, they should be held criminally liable for physical injuries only. Even if petitioners had the intent to kill Ruben, the prosecution
failed to prove treachery; hence, they should be held guilty only of attempted homicide.
On the other hand, the CA held that the prosecution was able to prove petitioners intent to kill Ruben:
On the first assigned error, intent to kill may be deduced from the nature of the wound inflicted and the kind of weapon used. Intent to
kill was established by victim Ruben Rodil in his testimony as follows:
Q: And while you were being boxed by Esmeraldo and Bong, what happened next?
A: When I was already lying [down] xxx, Dagol Rivera showed up with a piece of hollow block xxx and hit me thrice on the head, Sir.
Q: And what about the two (2), what were they doing when you were hit with a hollow block by Dagol?
A: I was already lying on the ground and they kept on boxing me while Dagol was hitting, Sir.

As earlier stated by Dr. Cagingin, appellants could have killed the victim had the hollow block directly hit his head, and had the police
not promptly intervened so that the brothers scampered away. When a wound is not sufficient to cause death, but intent to kill is
evident, the crime is attempted. Intent to kill was shown by the fact that the (3) brothers helped each other maul the defenseless victim,
and even after he had already fallen to the ground; that one of them even picked up a cement hollow block and proceeded to hit the
victim on the head with it three times; and that it was only the arrival of the policemen that made the appellants desist from their
concerted act of trying to kill Ruben Rodil.[10]
The Office of the Solicitor General (OSG), for its part, asserts that the decision of the CA is correct, thus:
The evidence and testimonies of the prosecution witnesses defeat the presumption of innocence raised by petitioners. The crime has
been clearly established with petitioners as the perpetrators. Their intent to kill is very evident and was established beyond reasonable
doubt.
Eyewitnesses to the crime, Alicia Vera Cruz and Lucita Villejo clearly and categorically declared that the victim Ruben Rodil was
walking along St. Peter Avenue when he was suddenly boxed by Esmeraldo Baby Rivera. They further narrated that, soon thereafter,
his two brothers Ismael and Edgardo Dagul Rivera, coming from St. Peter II, ganged up on the victim. Both Alicia Vera Cruz and Lucita
Villejo recounted that they saw Edgardo Dagul Rivera pick up a hollow block and hit Ruben Rodil with it three (3) times. A careful review
of their testimonies revealed the suddenness and unexpectedness of the attack of petitioners. In this case, the victim did not even have
the slightest warning of the danger that lay ahead as he was carrying his three-year old daughter. He was caught off-guard by the
assault of Esmeraldo Baby Rivera and the simultaneous attack of the two other petitioners. It was also established that the victim was
hit by Edgardo Dagul Rivera, while he was lying on the ground and being mauled by the other petitioners. Petitioners could have killed
the victim had he not managed to escape and had the police not promptly intervened.
Petitioners also draw attention to the fact that the injury sustained by the victim was superficial and, thus, not life threatening. The
nature of the injury does not negate the intent to kill. The Court of Appeals held:
As earlier stated by Dr. Cagingin, appellants could have killed the victim had the hollow block directly hit his head, and had the police
not promptly intervened so that the brothers scampered away. When a wound is not sufficient to cause death, but intent to kill is
evident, the crime is attempted. Intent to kill was shown by the fact that the three (3) brothers helped each other maul the defenseless
victim, and even after he had already fallen to the ground; that one of them picked up a cement hollow block and proceeded to hit the
victim on the head with it three times; and that it was only the arrival of the policemen that made the appellants desist from their
concerted act of trying to kill Ruben Rodil.[11]
The petition is denied for lack of merit.
An essential element of murder and homicide, whether in their consummated, frustrated or attempted stage, is intent of the offenders to
kill the victim immediately before or simultaneously with the infliction of injuries. Intent to kill is a specific intent which the prosecution
must prove by direct or circumstantial evidence, while general criminal intent is presumed from the commission of a felony by dolo.
In People v. Delim,[12] the Court declared that evidence to prove intent to kill in crimes against persons may consist, inter alia, in the
means used by the malefactors, the nature, location and number of wounds sustained by the victim, the conduct of the malefactors
before, at the time, or immediately after the killing of the victim, the circumstances under which the crime was committed and the
motives of the accused. If the victim dies as a result of a deliberate act of the malefactors, intent to kill is presumed.
In the present case, the prosecution mustered the requisite quantum of evidence to prove the intent of petitioners to kill Ruben.
Esmeraldo and Ismael pummeled the victim with fist blows. Even as Ruben fell to the ground, unable to defend himself against the
sudden and sustained assault of petitioners, Edgardo hit him three times with a hollow block. Edgardo tried to hit Ruben on the head,
missed, but still managed to hit the victim only in the parietal area, resulting in a lacerated wound and cerebral contusions.
That the head wounds sustained by the victim were merely superficial and could not have produced his death does not negate
petitioners criminal liability for attempted murder. Even if Edgardo did not hit the victim squarely on the head, petitioners are still
criminally liable for attempted murder.
The last paragraph of Article 6 of the Revised Penal Code defines an attempt to commit a felony, thus:
There is an attempt when the offender commences the commission of a felony directly by overt acts, and does not perform all the acts
of execution which should produce the felony by reason of some cause or accident other than his own spontaneous desistance.
The essential elements of an attempted felony are as follows:
1. The offender commences the commission of the felony directly by overt acts;
2. He does not perform all the acts of execution which should produce the felony;
3. The offenders act be not stopped by his own spontaneous desistance;
4. The non-performance of all acts of execution was due to cause or accident other than his spontaneous desistance.[13]
The first requisite of an attempted felony consists of two elements, namely:
(1) That there be external acts;
(2) Such external acts have direct connection with the crime intended to be committed.[14]
The Court in People v. Lizada[15] elaborated on the concept of an overt or external act, thus:
An overt or external act is defined as some physical activity or deed, indicating the intention to commit a particular crime, more than a
mere planning or preparation, which if carried out to its complete termination following its natural course, without being frustrated by
external obstacles nor by the spontaneous desistance of the perpetrator, will logically and necessarily ripen into a concrete offense.
The raison detre for the law requiring a direct overt act is that, in a majority of cases, the conduct of the accused consisting merely of
acts of preparation has never ceased to be equivocal; and this is necessarily so, irrespective of his declared intent. It is that quality of
being equivocal that must be lacking before the act becomes one which may be said to be a commencement of the commission of the
crime, or an overt act or before any fragment of the crime itself has been committed, and this is so for the reason that so long as the
equivocal quality remains, no one can say with certainty what the intent of the accused is. It is necessary that the overt act should have

been the ultimate step towards the consummation of the design. It is sufficient if it was the first or some subsequent step in a direct
movement towards the commission of the offense after the preparations are made. The act done need not constitute the last proximate
one for completion. It is necessary, however, that the attempt must have a causal relation to the intended crime. In the words of Viada,
the overt acts must have an immediate and necessary relation to the offense.[16]
In the case at bar, petitioners, who acted in concert, commenced the felony of murder by mauling the victim and hitting him three times
with a hollow block; they narrowly missed hitting the middle portion of his head. If Edgardo had done so, Ruben would surely have died.
We reject petitioners contention that the prosecution failed to prove treachery in the commission of the felony. Petitioners attacked the
victim in a sudden and unexpected manner as Ruben was walking with his three-year-old daughter, impervious of the imminent peril to
his life. He had no chance to defend himself and retaliate. He was overwhelmed by the synchronized assault of the three siblings. The
essence of treachery is the sudden and unexpected attack on the victim. [17] Even if the attack is frontal but is sudden and unexpected,
giving no opportunity for the victim to repel it or defend himself, there would be treachery. [18] Obviously, petitioners assaulted the victim
because of the altercation between him and petitioner Edgardo Rivera a day before. There being conspiracy by and among petitioners,
treachery is considered against all of them.[19]
The appellate court sentenced petitioners to suffer an indeterminate penalty of two (2) years of prision correccional in its minimum
period, as minimum, to six years and one day of prision mayor in its maximum period, as maximum. This is erroneous. Under Article
248 of the Revised Penal Code, as amended by Republic Act No. 7659, the penalty for murder is reclusion perpetua to death. Since
petitioners are guilty only of attempted murder, the penalty should be reduced by two degrees, conformably to Article 51 of the Revised
Penal Code. Under paragraph 2 of Article 61, in relation to Article 71 of the Revised Penal Code, such a penalty is prision mayor. In the
absence of any modifying circumstance in the commission of the felony (other than the qualifying circumstance of treachery), the
maximum of the indeterminate penalty shall be taken from the medium period of prision mayor which has a range of from eight (8)
years and one (1) day to ten (10) years. To determine the minimum of the indeterminate penalty, the penalty ofprision mayor should be
reduced by one degree, prision correccional, which has a range of six (6) months and one (1) day to six (6) years.
Hence, petitioners should be sentenced to suffer an indeterminate penalty of from two (2) years of prision correccional in its minimum
period, as minimum, to nine (9) years and four (4) months of prision mayor in its medium period, as maximum.
IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for lack of merit. The Decision of the Court of Appeals is AFFIRMED
WITH THE MODIFICATIONthat petitioners are sentenced to suffer an indeterminate penalty of from two (2) years of prision
correccional in its minimum period, as minimum, to nine (9) years and four (4) months of prision mayor in its medium period, as
maximum. No costs.
SO ORDERED.
G.R. No. 193666, February 19, 2014
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. MARLON CASTILLO Y VALENCIA, Accused-Appellant.
DECISION
LEONARDO-DE CASTRO, J.:
This an appeal from the Decision1 dated April 23, 2010 of the Court of Appeals in CA-G.R. CR.-H.C. No. 02999 denying the appeal of
the accused-appellant Marlon Castillo and affirming, with modification as to the award of damages, the Decision2 dated April 11, 2007 of
the Regional Trial Court (RTC) of Quezon City, Branch 86 in Criminal Case Nos. Q-03-119452 and Q-03-119453 which found the
accused-appellant
guilty
of
two
counts
of
rape
committed
against
his
12-year
old
daughter.
The Informations filed against the accused-appellant read:chanRoblesVirtualawlibrary
A. Criminal
Case
No.

Q-03-119452

That sometime during the period comprised between August 27, 1996 up to August 27, 1997, inclusive, in Quezon City, Philippines, the
said accused, with grave abuse of authority, did then and there willfully, unlawfully and feloniously commit sexual assault upon his
daughter Nene3, a minor, then only six (6) years of age, by rubbing his penis on the labia of the vagina of said complainant, licking her
vagina and breast and inserting his finger inside her vagina, against her will and without her consent, which act further debase[d],
degrade[d] or demean[ed] the intrinsic worth and human dignity of said offended party as a human being, to the damage and prejudice
of
the
said
Nene.4crallawlibrary
B. Criminal

Case

No.

Q-03-119453

That on or about the month of November 2000, in Quezon City, Philippines, the said accused, with force, threat or intimidation and
grave abuse of authority, did then and there willfully, unlawfully and feloniously commit sexual assault upon his daughter Nene, a minor,
12 years of age, by then and there mashing her breast, licking her vagina and breast and by vigorously rubbing his penis on the labia of
her vagina, against her will and without her consent, which act further debase [d], degrade [d] or demean[ed] the intrinsic worth and
human dignity of said offended party as a human being, to the damage and prejudice of the said Nene.5crallawlibrary
The accused-appellant pleaded not guilty to the charge when arraigned. 6 Pre-trial was conducted and, thereafter, trial ensued.
The prosecution established that Nene, the private offended party, is the child of the accused-appellant. She was born on August 27,
1990.7crallawlibrary
Nene could no longer remember the exact date her ordeal at the hands of the accused-appellant started. All she could remember was
that the accused-appellant first molested her when she was six years old. 8 Her mother was not around at that time and the accusedappellant told Nenes siblings to go outside the house. Her father abused her in the bed placed in a corner of their house. He mashed
her breasts and rubbed his sex organ against her vagina. He licked her breasts. He also licked her vagina and inserted his finger in
it.9 While he was doing these things to her, she resisted and cried but he scolded her and ordered her to be still. He also threatened to
beat
her
and
to
kill
her
mother
and
brother.10crallawlibrary
Nenes defilement by the accused-appellant was repeated several times. Thus, disregarding the accused-appellants threats, Nene
summoned the courage to tell her mother about the accused-appellants bestiality.11 A complaint was filed against the accusedappellant in the National Bureau of Investigation which led to his detention. Nenes mother subsequently pleaded with Nene however,
and
they
subsequently
desisted
from
pursuing
the
complaint
against
him.12 That
was
their
mistake.
Sometime in the second week of November 2000, the accused-appellant abused Nene again by rubbing his penis against her
vagina.13crallawlibrary
She underwent a medical examination which resulted to the following findings:chanRoblesVirtualawlibrary
GENERAL
PHYSICAL
Height: 139.0

cm.

Weight: 32.0

EXAMINATION
kg.

Fairly nourished, conscious, coherent, cooperative, ambulatory subject. Breasts, developing. Areolae, brown, measures 1.8 cm. in
diameter. Nipples, brown, protruding, measures 0.4 cm. in diameter. No sign of extragenital physical injury was noted.
GENITAL

EXAMINATION:chanRoblesVirtualawlibrary

Pubic hair, no growth. Labia majora, and minora, coaptated. Fourchette, tense. Vestibular mucosa, pinkish. Hymen, crescentric, short,
thin, intact. Hymenal orifice, measures 1.0 cm. in diameter. Vaginal walls and rugosities, cannot be reached by the examining finger.
CONCLUSIONS:chanRoblesVirtualawlibrary
1. No evident sign of extragenital physical injury was noted on the body of the subject at the time of examination.
2. Hymen, intact and its orifice small (1.0 cm. in diameter) as to preclude complete penetration by an average-sized adult Filipino male
organ in full erection without producing any genital injury.14crallawlibrary
In his defense, the accused-appellant denied the charges against him. He believes that Nene and her mother, Nena, accused him of
raping Nene because they believed him to be a cruel husband and father. He admitted being harsh to his wife and children, attributing it
to the stress of being the familys sole breadwinner. Rosing, his sister-in-law, witnessed his cruelty to his children and encouraged his
daughter
and
wife
to
file
the
cases
against
him.15crallawlibrary
After weighing the respective evidence of the parties, the trial court found the prosecutions evidence credible and sufficient to sustain
the conviction of the accused-appellant. According to the trial court:chanRoblesVirtualawlibrary
The rape consisted of rubbing the penis of the accused to the labia of the vagina of the private complainant. Prevailing jurisprudence is
to the effect that the slightest introduction of the male organ into the labia of the victim already constitutes rape[] x x x. 16 (Citations
omitted.)
Thus, in a Decision dated April 11, 2007, the trial court found the accused-appellant guilty beyond reasonable doubt of two counts of
qualified rape by sexual intercourse under Article 266-A(l) in relation to the first qualifying circumstance mentioned in Article 266-B of
the Revised Penal Code, as amended. The dispositive portion of the decision reads:chanRoblesVirtualawlibrary
WHEREFORE, premises considered, judgment is hereby rendered as follows:chanRoblesVirtualawlibrary
1) In Criminal Case No. Q-03-119452, finding the accused Marlon Castillo y Valencia, guilty beyond reasonable doubt of the crime of
rape defined and penalized under Article[s] 266-A and 266-B of the Revised Penal Code, as amended, in relation to RA 7610 and
hereby
sentences
said
accused
to
suffer
the
penalty
of reclusion
perpetua.
2) In Criminal Case No. Q-03-119453, finding the accused Marlon Castillo y Valencia, guilty beyond reasonable doubt of the crime of
rape defined and penalized under Articlefs] 266-A and 266-B of the Revised Penal Code, as amended, in relation to RA 7610 and
hereby sentences him to suffer the penalty of reclusion perpetua.
In addition to the above penalties, the accused is hereby ordered to indemnify the private complainant the amount of P75,000.00 as
moral damages.17crallawlibrary
The accused-appellant appealed his case to the Court of Appeals. For him, the RTC erred in giving undue credence to the testimonies
of the prosecution witnesses, particularly Nene. He claimed that Nenes testimony contained many inconsistencies, improbabilities,
ambiguities, and contradictions. She testified that she was six years old the first time the accused-appellant raped her while her mother
was outside the house and at work, but stated in her Sinumpaang Salaysay dated November 23, 2000 that she was only four years old
when the accused-appellant started sexually molesting her while her mother was inside the house sleeping. She also testified that the
accused-appellant raped her by mashing her breast and trying to insert his sex organ into hers or rubbing his penis against her vagina,
but she stated in her Sinumpaang Salaysay that he licked her breast and vagina, and inserted his penis and finger in her
vagina.18crallawlibrary
The accused-appellant also pointed to the inconsistency between Nenes testimony that she was born on August 27, 1990 and her
statement that she was twelve years old when the accused-appellant raped her in November 2000. He also argued that he could not
have raped Nene as she herself testified that she neither felt any pain nor did her genitalia bleed. The medical report even showed that
Nenes hymen was still intact and showed no sign of any genital injury. According to the accused-appellant, these inconsistencies cast
serious
doubt
on
the
truthfulness
of
Nenes
rape
allegations.19crallawlibrary
In a Decision dated April 23, 2010, the Court of Appeals rejected the contentions of the accused-appellant. It found credible Nenes
account during her testimony of her age and the manner she was ravished by her father. It held that the alleged inconsistencies in
Nenes testimony were trivial and insufficient to render her account doubtful.20 It further ruled that the accused-appellant committed rape
by sexual assault under Article 266-A(2) of the Revised Penal Code, as amended. According to the appellate
court:chanRoblesVirtualawlibrary
[Nenes] testimony and Sinumpaang Salaysay agreed on the following matters: a) appellant licked her vagina; and b) appellant inserted
his penis and finger into her vagina. As stated, she experienced all these lurid acts from her own father. Appellant cannot negate his
liability by breaking down these acts and treating them separately. In any event, whether he penetrated his daughter with his penis or
his finger does not affect his criminal liability for rape. Under Article 266-A of the Revised Penal Code, rape is committed by one who
under any of the circumstances mentioned in paragraph 1, shall commit an act of sexual assault by inserting his penis into anothers
mouth or anal orifice or any instrument or object, into the genital or anal orifice of another person.21crallawlibrary
Thus, the Court of Appeals denied the accused-appellants appeal and affirmed the decision of the trial court, with modification as to the
award of damages:chanRoblesVirtualawlibrary
ACCORDINGLY, We AFFIRM the appealed Decision with MODIFICATION granting P75,000 as civil indemnity and P25,000 as
exemplary damages in addition to the trial courts award of P75,000 as moral damages.22crallawlibrary
The accused-appellant brings this appeal based on the very same grounds of his appeal in the Court of Appeals. 23 Like the Court of
Appeals,
however,
we
deny
the
accused-appellants
appeal.
The alleged contradictions and inconsistencies refer to trivial matters. They are not material to the issue of whether or not the accusedappellant
committed
the
acts
for
which
he
has
been
charged,
tried
and
convicted.
Besides, Nene was only ten years old when she answered the questions contained in the Sinumpaang Salaysay and she was only
fourteen years old when she testified. Error-free testimony cannot be expected, most especially when a witness is recounting details of
a
harrowing
experience,
one
which
even
an
adult
would
like
to
bury
in
oblivion. 24crallawlibrary
The age of Nene when the incidents of rape happened has been established by her birth certificate which shows that she was born on
August 27, 1990.25 With that data, the age of Nene at the time of the first incident sometime in October 1996 to October 1997 and her
age at the time of the second incident in November 2000 become a simple matter of mathematical computation.

Moreover, as regards Nenes age when the first incident of rape happened, Nene clarified what the accused-appellant perceives to be
an inconsistency in her part. In her answer to the clarificatory questioning of the prosecutor, she categorically stated that she was six
years old at that time:chanRoblesVirtualawlibrary
ACP Taylor: Now, in Par. 10 of your complaint affida.vit[/Sinumpaang Salaysay], it did not state [how] the incident transpired and where.
Please tell me clearly, in connection with Par. 10 of your complaint affidavit[/Sinumpaang Salaysay] dated 23 Nov. 2000, when did this
incident
transpire?
[Nene]: Hindi ko na po maalaala pero ang sigurado po ako ay ako ay six years old po lamang ako noon. 26 (Emphasis supplied.)
The alleged contradiction about the whereabouts of Nenes mother at the time of the first incident of rape is inconsequential to the fact
that the accused-appellant raped Nene at that time. Whether her mother, who is the accused-appellants wife, was outside the house or
sleeping inside the house at that time would not disprove the accused-appellants rape of Nene. Case law proves that circumstances of
time, place, and even the presence of other persons are not considerations in the commission of rape. Thus, we have held in People v.
Mendoza27:chanRoblesVirtualawlibrary
[R]ape is no respecter of time and place. It can be committed even in places where people congregate, in parks, along the roadside,
within school premises, inside a house or where there are other occupants, and even in the same room where there are other members
of the family who are sleeping. (Citations omitted.)
The alleged variance in the narration in Nenes Sinumpaang Salaysay and during her testimony of the specific acts of the accusedappellant which constituted the rape is more apparent than real. During trial, Nene affirmed and confirmed the truthfulness of the
statements contained in her Sinumpaang Salaysay.28 The Sinumpaang Salaysay was formally offered as evidence for the
prosecution.29 When a sworn statement has been formally offered as evidence, it forms an integral part of the prosecution evidence
which complements and completes the testimony on the witness stand. 30 Indeed, NenesSinumpaang Salaysay and testimony during
trial complement, rather than contradict, each other. Thus, taken together, they give a more complete account of the dastardly acts
done
by
the
accused-appellant
against
his
own
daughter.
The medical report, which showed that Nenes hymen was still intact and revealed no sign of any genital injury, was consistent with
Nenes statement that her genitalia did not bleed as a result of what the accused-appellant did to her. Contrary to the accusedappellants contention, therefore, the medical report corroborated, rather than contradicted, Nenes testimony.
More importantly, proof of hymenal laceration is not an element of rape. Nor is proof of genital bleeding. An intact hymen does not
negate a finding that the victim was raped. Penetration of the penis by entry into the lips of the vagina, even without laceration of the
hymen, is enough to constitute rape, and even the briefest of contact is deemed rape. 31 Besides, rape can now be committed even
without
sexual
intercourse,
that
is,
by
sexual
assault.
Both Informations in Criminal Case Nos. Q-03-119452 and Criminal Case No. Q-03-119453 alleged that the accused-appellants acts of
sexual molestation of his daughter Nene were attended by grave abuse of authority. The prosecution was able to establish that
circumstance. In particular, the accused-appellant gravely abused his parental authority, particularly his disciplinary authority, over Nene
and used it to further his lechery. In incestuous rape cases, the fathers abuse of the moral ascendancy and influence over his daughter
can subjugate the latters will thereby forcing her to do whatever he wants. His moral and physical domination is sufficient to cow the
daughter-victim into submission to his beastly desires.32 In this case, Nene feared the accused-appellant. In fact, the accused-appellant
himself admitted in his testimony that he was a cruel husband and father and that he treated his wife and children
harshly.33crallawlibrary
Therefore, the trial and the appellate courts correctly ruled that Nenes testimony against the accused-appellant is credible enough and
sufficient enough to sustain the accused-appellants conviction. Nene was clear and categorical in her testimony that her father, the
accused-appellant, with grave abuse of authority, threat and intimidation, sexually violated her in the two instances subject of the
Informations in Criminal Case Nos. Q-03-119452 and Q-03-119453, respectively. The records bear this out. 34crallawlibrary
In particular, Nene related that, sometime when she was six years old, the accused-appellant rubbed his .sex organ against hers, licked
her vagina and inserted his finger in it, all the while threatening her. Nene also recounted that, sometime in the second week of
November 2000, the accused-appellant, in grave abuse of his parental authority, sexually molested her again by rubbing his penis
against
her
vagina.
Nevertheless,

there

is

need

to

clarify

the

crimes

for

which

the

accused-appellant

has

been

convicted.

The trial court found the accused-appellant guilty of qualified rape by sexual intercourse under Article 266-A(l) of the Revised Penal
Code, as amended, in relation to the first qualifying circumstance enumerated in Article 266-B of the same law, 35 namely, that Nene is
under 18 years of age and the accused-appellant is her father. On the other hand, the appellate court found the accused-appellant to
have committed qualified rape by sexual assault under Article 266-A(2) of the Revised Penal Code, as amended, in relation to the first
qualifying
circumstance
mentioned
in
Article
266-B.36crallawlibrary
There is thus a substantial variance in the rulings of the trial and the appellate courts as regards the felony which the accused-appellant
committed. The difference in their rulings is significant because rape by sexual intercourse and rape by sexual assault have different
elements. We explained this matter in People v. Espera37:chanRoblesVirtualawlibrary
As the felony is defined under Article 266-A, rape may be committed either by sexual intercourse under paragraph 1 or by sexual
assault
under
paragraph
2.
Rape by sexual intercourse is a crime committed by a man against a woman. The central element is carnal knowledge and it is
perpetrated under any of the circumstances enumerated in subparagraphs (a) to (d) of paragraph 1.
On the other hand, rape by sexual assault contemplates two situations. First, it may be committed by a man who inserts his penis into
the mouth or anal orifice of another person, whether a man or a woman, under any of the attendant circumstances mentioned in
paragraph 1. Second, it may be committed by a person, whether a man or a woman, who inserts any instrument or object into the
genital or anal orifice of another person, whether a man or a woman, under any of the four circumstances stated in paragraph 1.
(Citations omitted.)
Moreover, under Article 266-B of the Revised Penal Code, as amended, qualified rape by sexual intercourse and qualified rape by
sexual assault are punished differently. In particular, qualified rape by sexual intercourse is punishable by death. In view of Republic Act
No. 934638 which prohibited the imposition of the death penalty, however, qualified rape is punishable by reclusion perpetua39 On the
other
hand,
qualified
sexual
assault
is
punishable
by reclusion
temporal.
It is noteworthy that under the Information in Criminal Case No. Q-03-119452, the accused-appellant can be held liable for either of two
crimes: (1) qualified statutory rape by sexual intercourse under Article 266-A(l)(d) of the Revised Penal Code, as amended, which
punishes as rape a mans carnal knowledge of a woman under twelve years of age, even though there was no force, threat,
intimidation, or grave abuse of authority, or (2) qualified statutory rape by sexual assault under Article 266-A(2) in connection with sub-

paragraph (d) of the same Article 266-A(l). Both are qualified by the first qualifying circumstance under Article 266-B of the Revised
Penal
Code,
as
amended.
As stated earlier, the trial court convicted the accused-appellant for qualified statutory rape by sexual intercourse, finding that the
accused-appellants sex organ penetrated Nenes genitalia. Such finding is, however, mistaken. What Nene testified to was that her
father, the accused-appellant, rubbed his penis against her vagina. However, such rubbing of the penis against the vagina does not
amount
to
penetration
which
would
consummate
the
rape
by
sexual
intercourse.
In her Sinumpaang Salaysay dated November 23, 2000, Nene stated:chanRoblesVirtualawlibrary
10.
T: Papaano ka nire-rape ng Papa mo?
S: Iyung ari niya inilalagay sa pekpek ko. Dinidilaan niya ang dede ko pati ang pekpek ko. Iyung daliri niya ipinapasok sa butas
ng pekpek ko.40crallawlibrary
She explained this further on clarificatory questioning:
ACP
[O]key[,] to be more clear (sic), please tell me basically, what exactly did your father do to you when you were six years old
Taylor: and when you were residing in QC?
[Nene]: Yung nga po yung ari niya idinidikit sa ari ko at kinukuskus nya yung ari niya sa ari ko tapos dinidilaan niya yung ari ko pati
susu ko at pinapasok pa niya yung finger niya sa ari ko[.]
ACP
Taylor:

You said and I quote, kinukuskus niya yung ari niya sa ari [k]o. Now[,] may penetration ba, ipinap[a]sok ba niya sa ari mo
yung ari niya?

[Nene]: Hindi naman po pero kinukuskos nya po[.]41 (Emphases supplied.)

At the witness stand, Nene testified as follows during direct-examination:chanRoblesVirtualawlibrary
Q:
Will you please tell us how the accused raped you?
A:
He was mashing my breast and he was trying to insert his penis to my vagina.
xxxx
Q:
A:

So when the accused raped you for the first time, what did you feel?
I don't know, Sir.

Q:
A:

Did you not feel pain at that time?

No, Sir.

Q:
Was there any blood on your vital part when he raped you?
A:
None, Sir.42 (Emphasis supplied.)
On cross-examination, Nene testified:chanRoblesVirtualawlibrary
Q:
You also testified that you did not feel pain when the accused allegedly raped you, is that correct?
A:
Yes, Sir.
Q:
A:

And also there was no blood coming from the vagina?

Yes, Sir.

Q:
And it was only because the accused rubbed his penis to your vagina, is that correct?
A:
Yes, Sir.43
Thus, Nenes statements in her Sinumpaang Salaysay and testimony at the witness stand established that her father mashed her
breast, kissed and licked her vagina, inserted his finger in her sex organ, and rubbed his sex organ against hers but he did not
penetrate
her
vagina.
Jurisprudence dictates that in order for rape to be consummated, there must be penetration of the penis into the vagina. 44 The concept
of penetration required in rape by sexual intercourse has been explained in People v. Campuhan45 as
follows:chanRoblesVirtualawlibrary
[A] grazing of the surface of the female organ or touching the mons pubis of thepudendum is not sufficient to constitute consummated
rape. Absent any showing of the slightest penetration of the female organ, i.e, touching of either labia of the pudendumby the penis,
there can be no consummated rape; at most, it can only be attempted, if not acts of lasciviousness.
This Court is aware of cases where the conviction of the accused for consummated rape has been upheld even if the victim testified
that there was no penetration and the accused simply rubbed his penis in the victims vagina. 46 However, in those cases, there were
pieces of evidence such as the pain felt by the victim, injury to the sex organ of the victim (e.g., hymenal laceration), and bleeding of the
victims genitalia. Here, the victim not only categorically stated that there was no penetration, she also stated that she felt no pain and
her vagina did not bleed. Thus, the appellant cannot be convicted for qualified rape by sexual intercourse.
Nevertheless, his conviction in Criminal Case No. Q-03-119452 cannot be downgraded to qualified attempted rape. The prosecution
has alleged and proved that there was qualified rape by sexual assault when the accused-appellant kissed and licked his daughter
Nenes
vagina
and
inserted
his
finger
in
her
sex
organ.
While the Court of Appeals correctly convicted the accused-appellant for rape by sexual assault, it erred in affirming the penalty
imposed by the trial court reclusion perpetua, which was for qualified rape by sexual intercourse. As stated earlier, under Article 266B of the Revised Penal Code, as amended, the penalty for qualified rape by sexual assault is reclusion temporal. There being neither
mitigating nor aggravating circumstance which attended the crime, the penalty is imposable in its medium period which has a duration
of 14 years, 8 months and 1 day to 17 years and 4 months, and the maximum period of the indeterminate penalty will be taken from
this. The minimum period of the indeterminate sentence will be within the range of prision mayor which has a duration of 6 years and 1
day to 12 years, as it is the penalty next lower to reclusion temporal. Thus, the accused-appellants penalty for qualified rape by sexual
abuse in Criminal Case No. Q-03-119452 should be modified to an indeterminate sentence the minimum period of which is 12 years
of prision mayor and the maximum period of which is 17 years and 4 months oiPreclusion temporal.
As regards the conviction of the accused-appellant in Criminal Case No. Q-03-119453, this too should be modified.
In her Sinumpaang Salaysay dated November 23, 2000, Nene simply stated:
17.
T:
Kailan nangyari iyung hilling paggalaw sa iyo ng Papa mo?
S:
Noong lingo.
18.

T:

Ito bang nakaraang Linggo lang?

S:
Opo.47
Her testimony at the witness stand is as follows:
Q:
In the information, you mentioned that you were again sexually abused by your father when you were already 12 years old?
A:
Yes, Sir.
Q:
A:

And this was the last time your father raped you?
Yes, Sir.

Q:
A:

Do you recall the month?

November 2000.

Q:
A:

So in November of 2000 you were raped again by your father?

Yes, Sir, the last time.

Q:
A:

While rubbing his penis, did he not insert it to your vagina?

Yes, Sir.

Q:
So he was just rubbing his penis to your vagina?
A:
Yes, Sir.48
Thus, Nenes statements in her Sinumpaang Salaysay and testimony at the witness stand established that, in November 2000, her
father rubbed his sex organ against hers. This cannot be qualified rape by sexual assault. As the fact of penetration was not clearly
established,
this
is
only
attempted
qualified
rape
by
sexual
intercourse.
There is an attempt to commit rape when the offender commences its commission directly by overt acts but does not perform all acts of
execution which should produce the felony by reason of some cause or accident other than his own spontaneous desistance. 49 In this
connection, People v. Bon50 is instructive:chanRoblesVirtualawlibrary
[U]nder Article 6 of the Revised Penal Code, there is an attempt when the offender commences the commission of a felony directly by
overt acts, and does not perform all the acts of execution which should produce the felony by reason of some cause or accident other
than his own spontaneous desistance. In the crime of rape, penetration is an essential act of execution to produce the felony.
Thus, for there to be an attempted rape, the accused must have commenced the act of penetrating his sexual organ to the vagina of
the victim but for some cause or accident other than his own spontaneous desistance, the penetration, however slight, is not
completed.51 (Emphasis supplied.)
In this case, the accused-appellant commenced the act of having sexual intercourse with Nene but failed to make a penetration into her
sexual organ not because of his spontaneous desistance but because of the relatively small size of her orifice as indicated in the
medical
findings
conducted
upon
Nene
after
the
November
2000
incident.
The penalty for qualified attempted rape is prision mayor. As no mitigating or aggravating circumstance attended the crime, the penalty
is imposable in its medium period, which has a duration of 8 years and 1 day to 10 years, from which the maximum period of the
indeterminate penalty will be taken. The minimum period of the indeterminate sentence will be within the range of prision correccional,
which has a duration of 6 months and 1 day to 6 years, as it is the penalty next lower to prision mayor.52 Thus, the accused-appellants
conviction in Criminal Case No. Q-03-119453 should be modified to attempted qualified rape by sexual intercourse for which he is
imposed an indeterminate sentence with a minimum period of 6 years of prision correccional and a maximum period of 10 years
of prision
mayor.
With the modification of the crimes for which the accused-appellant has been convicted and of the corresponding penalties imposed on
him,
a
modification
of
the
award
of
damages
is
also
in
order.
For the qualified rape by sexual assault, in line with prevailing jurisprudence, the accused-appellant should pay Nene P30,000.00 civil
indemnity. This is mandatory upon a finding of the fact of rape. Moreover, the award of moral damages is automatically granted without
need of further proof, it being assumed that a rape victim has actually suffered moral damages entitling her to such award. Nene is,
thus, entitled to recover P3 0,000.00 moral damages pursuant to prevailing case law. In addition, for purposes of the award of
damages, the qualifying circumstances of minority and relationship entitle Nene to an award of P30,000.00 exemplary
damages.53crallawlibrary
For the attempted qualified rape by sexual intercourse, in accordance with recent case law, the accused-appellant should pay Nene
P30,000.00
civil
indemnity,
P25,000.00
moral
damages,
and
P10,000.00
exemplary
damages.
As the Court of Appeals correctly ruled, interest at the rate of six percent (6%) per annum shall be imposed on all damages awarded
from
the
date
of
finality
of
this
judgment
until
fully
paid,
pursuant
to
prevailing
jurisprudence.35
WHEREFORE, the Decision dated April 23, 2010 of the Court of Appeals in CA-G.R. CR.-H.C. No. 02999 is hereby AFFIRMED with
MODIFICATION as
follows:chanRoblesVirtualawlibrary
1) In Criminal Case No. Q-03-119452, the accused-appellant Marlon Castillo y Valencia, is foundGUILTY beyond reasonable doubt of
the crime of qualified rape by sexual assault for which he is sentenced to suffer an indeterminate penalty the minimum period of which
is 12 years of prision mayor and the maximum period of which is 17 years and 4 months of reclusion temporal.
The accused-appellant is further ordered to pay the victim P30,000.00 civil indemnity, P30,000.00 moral damages and P30,000.00
exemplary
damages.
2) In Criminal Case No. Q-03-119453, the accused Marlon Castillo y Valencia, is found GUILTYbeyond reasonable doubt of attempted
qualified rape by sexual intercourse for which he is imposed an indeterminate sentence with a minimum period of 6 years of prision
correccional and
a
maximum
period
of
10
years
of prision
mayor.
The accused-appellant is further ordered to pay the victim P30,000.00 civil indemnity, P25,000.00 moral damages, and PI0,000.00
exemplary
damages.
The amounts awarded to the victim in Criminal Case Nos. Q-03-119452 and Q-03-119453 shall earn legal interest at the rate of six
percent
(6%) per
annum from
the
date
of
finality
of
this
judgment
until
fully
paid.
SO ORDERED.