1

G.R. No. L-12155

February 2, 1917

THE UNITED STATES, plaintiff-appellee,

vs.
PROTASIO EDUAVE, defendant-appellant.
Manuel Roxas for appellant.
Attorney-General Avancea for appellee.
MORELAND, J.:
We believe that the accused is guilty of frustrated murder.
We are satisfied that there was an intent to kill in this case. A deadly weapon was used. The blow was
directed toward a vital part of the body. The aggressor stated his purpose to kill, thought he had killed, and
threw the body into the bushes. When he gave himself up he declared that he had killed the complainant.
There was alevosia to qualify the crime as murder if death had resulted. The accused rushed upon the girl
suddenly and struck her from behind, in part at least, with a sharp bolo, producing a frightful gash in the
lumbar region and slightly to the side eight and one-half inches long and two inches deep, severing all of
the muscles and tissues of that part.
The motive of the crime was that the accused was incensed at the girl for the reason that she had
theretofore charged him criminally before the local officials with having raped her and with being the cause
of her pregnancy. He was her mother's querido and was living with her as such at the time the crime here
charged was committed.
That the accused is guilty of some crime is not denied. The only question is the precise crime of which he
should be convicted. It is contended, in the first place, that, if death has resulted, the crime would not have
been murder but homicide, and in the second place, that it is attempted and not frustrated homicide.
As to the first contention, we are of the opinion that the crime committed would have been murder if the girl
had been killed. It is qualified by the circumstance of alevosia, the accused making a sudden attack upon
his victim from the rear, or partly from the rear, and dealing her a terrible blow in the back and side with his
bolo. Such an attack necessitates the finding that it was made treacherously; and that being so the crime
would have been qualified as murder if death had resulted.
As to the second contention, we are of the opinion that the crime was frustrated and not attempted murder.
Article 3 of the Penal Code defines a frustrated felony as follows:
A felony is frustrated when the offender performs all the acts of execution which should produce
the felony as a consequence, but which, nevertheless, do not produce it by reason of causes
independent of the will of the perpetrator.
An attempted felony is defined thus:

There is an attempt when the offender commences the commission of the felony directly by
overt acts, and does not perform all the acts of execution which constitute the felony by reason
of some cause or accident other than his own voluntarily desistance.
The crime cannot be attempted murder. This is clear from the fact that the defendant performed all of the
acts which should have resulted in the consummated crime and voluntarily desisted from further acts. 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 of the acts which should result in the consummation of the
crime and voluntarily desists from proceeding further, it can not 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 the crime and the
moment when all of 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 in 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.
The subjective phase is that 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 points where he voluntarily 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.
That the case before us is frustrated is clear.
The penalty should have been thirteen years of cadena temporal there being neither aggravating nor
mitigating circumstance. As so modified, the judgment is affirmed with costs. So ordered.
Torres and Araullo, JJ., concur.
Carson and Trent, JJ., concur in the result.

THIRD DIVISION

[G.R. No. 124833. July 20, 1998]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROMEO ENRIQUEZ y NICDAO, accusedappellant.

DECISION
ROMERO, J.:

3
Even as a mans eyes have been said to be the windows of his soul, his conscience serves as his
moral compass. Every man has an innate sense of morality but only a few actually follow the strait and
narrow. A terrified teenager listened to this still small voice deep within him and, with utter disregard for his
personal safety, opted to break his silence so that the truth may be unveiled. In doing so, he chose the
right path.
At around 4:30 in the vanishing daylight of June 17, 1991, after a hard days work at the construction
site of Centerville at Tandang Sora, Quezon City, laborers Romeo Enriquez, Manuel Biasa, and Ariel
Donato, Jr., began a drinking spree which would have a tragic ending. On their third round, after finishing
five bottles of gin, they asked security guard Eduardo Tupig to join them, and the latter acquiesced. Having
consumed the last two bottles of gin, they proceeded to take their supper. Enriquez, apparently not having
had his fill of alcohol, borrowed P500.00 from Biasas mother and decided to continue their carousal by
going to DMargs Beerhouse where they danced and had several more rounds of beer. After leaving the
beerhouse, around thirty meters away, at the parking lot of a 7-Eleven store at the corner of Tandang Sora
and Visayas Avenues, somebody suddenly stabbed Tupig from behind. His three companions rushed him
to the East Avenue Medical Center, but Tupig succumbed to the single stab wound at around 11:00 oclock
p.m.
On June 18, 1991, Enriquez, Donato, and Biasa gave their respective statements to the police, and
they all blamed a group of ten unidentified men for the death of Tupig. [1] Four months later, however, Biasa,
a protg of Enriquez, executed two sworn statements dated October 31 and November 22, 1991, pointing to
his patron as the one who stabbed Tupig and to Donato as the accomplice. [2] On the basis of this
development, an information for murder dated November 27, 1991, was filed against Enriquez and the
then still unknown Donato who remains at large.
At the hearings on March 11 [3] and April 14,[4] 1992, the 19-year old Biasa affirmed his two later
sworn statements and testified that he was allegedly threatened with death by Enriquez and Donato unless
he supported their narrative. He stated that on the night in question, as they were about to leave for the
beerhouse, he brought along his double-bladed knife upon Enriquez behest, apparently for protection.
[5]
During their beer-drinking session, and while Tupig was relieving himself, Enriquez asked for the knife
which Biasa passed under the table. On their way home, Enriquez drew this same knife from the waist of
his pants and stabbed Tupigs left side from behind.[6] With Tupig prostrate on the ground, Enriquez hailed
his two companions, then returned the knife to Biasa who gingerly accepted it. On their way to the hospital,
Enriquez retrieved the knife and threw it into a creek. [7] At the emergency room of the East Avenue Medical
Center, while the doctors were trying in vain to save Tupigs life, Donato grabbed Biasa by the collar,
hauled him to a dark spot in the hallway, hit him at the back of the head, and warned him under pain of
death not to tell a story to the police different from the version agreed upon by the other two. [8]
Upon examination by Medico-Legal Officer Bienvenido O. Muoz of the National Bureau of
Investigation, it was concluded that Tupig died of hemorrhage secondary to stab wound.[9]
Enriquez stuck to his earlier statement and maintained that after spending time at the DMargs
Beerhouse with his friends, he was trying to get a taxicab outside a 7-Eleven convenience store when a
group of ten unidentified men suddenly attacked his companions, resulting in the unfortunate demise of
Tupig.[10]
The other defense witness, SPO1 Armando Cruz, testified that he failed to find any witness to the
alleged rumble when he investigated the crime scene.[11]
After trial on the merits, Judge Felix M. de Guzman of the Regional Trial Court of Quezon City,
Branch 99, rendered judgment, the decretal portion of which reads thus:

WHEREFORE, premises considered, this Court finds accused ROMEO ENRIQUEZ Y NICDAO GUILTY
beyond reasonable doubt of the crime of MURDER penalized under Article 248 of the Revised Penal
Code, without any mitigating or aggravating circumstances, and hereby sentences said accused to suffer
the penalty of imprisonment of reclusion perpetua and to pay the heirs of the deceased victim damages in
the amount of FIFTY THOUSAND PESOS (PH50,000.00) pursuant to the decision of the Supreme Court
in People vs. Jose Adriano y Vargas (G.R. No. 104578, September 6, 1993).
It is understood that accused shall be credited in full of his preventive imprisonment.
SO ORDERED.
Enriquez is now before this Court still asserting his innocence and insisting that the trial courts
factual findings are erroneous. He also claims that the initial, not the later, sworn statement of Biasa should
have been considered by the court.
Accused-appellants conviction must stand.
Before proceeding, this Court reiterates its policy of paying fidelity to the factual findings of the trial
court, especially when, as in the case at bar, there seems no plausible reason to abandon its conclusions.
Enriquez contends that a group of ten unidentified men was responsible for Tupigs death. In the
investigation of the stabbing, Enriquez version was supported by Donato, but during the trial, he made no
mention at all of his co-accused who could have at least corroborated his testimony. Oddly, he also failed
to identify and could not describe even one of the supposed aggressors. [12] It is even more bizarre that
while he depicted the attack on his companions as a rumble, only one was injured, and fatally at that. The
weakness of the defense is further compounded by the manifest dearth of any corroborative evidence. But
as in all other criminal accusations, this one must bank on the strength of the States evidence, not on the
infirmity of the defense. We believe the prosecution was equal to this task and sufficiently established the
guilt of accused-appellant.
Enriquez was positively tagged by Biasa as the man who stabbed Tupig from behind. He could not
explain why Biasa made a turnabout and explicitly fingered him as the culprit. [13] That the young laborer
vacillated four months after his initial statement does not, however, detract from the fact that on the witness
stand, he did not hesitate to identify Enriquez, the man who recommended him for employment in the
construction site, as Tupigs assailant. Positive identification, where categorical and consistent and without
any showing of ill motive on the part of the eyewitness testifying on the matter, prevails over alibi and
denial which if not substantiated by clear and convincing evidence are negative and self-serving evidence
undeserving of weight in law.[14]
In the assaying of a mans conflicting deeds, as in the two sworn statements of Biasa, the later, more
recent act is presumed to be his true will and intent. This presumption gains more credibility when the
declarant affirms his assertions while testifying under oath on the witness stand.
Neither could the prosecution be faulted for presenting a single witness to prove that Enriquez
stabbed Tupig. Biasas testimony, substantiated as it was on its material points by the postmortem findings
of Dr. Muoz, adequately enlightened the court on the environmental setting of the victims death. Further
proof would, therefore, be redundant and would have been unnecessary in persuading the court of
accused-appellants culpability. As the Court declared in Bautista v. Court of Appeals,[15] criminals are
convicted, not on the number of witnesses against them, but on the credibility of the testimony of even one
witness who is able to convince the court of the guilt of the accused beyond a shadow of a doubt.
The Court agrees with the trial courts disposition of this case and the conclusions reached. Tupig
was literally stabbed in the back by Enriquez moments after they engaged in a drinking spree. The attack

4
was so sudden, so unexpected, that Tupig never really knew what hit him. He was completely defenseless
against that treachery, which the postmortem report readily established. As the trial court correctly
observed: Finally, the prosecution has sufficiently proven that the killing of the deceased was qualified by
treachery in that the victim was stabbed from behind and that while accused Enriquez was stabbing the
victim, other accused Donato was nearby to ensure or afford impunity. . . . Accused-appellants life was
never in jeopardy and, in a show of feigned concern, he even had the temerity to bring his victim to the
hospital. In Bautista,[16] this Court had occasion to state that (a)n unexpected and sudden attack under
circumstances which render the victim unable and unprepared to defend himself by reason of the
suddenness and severity of the attack constitutes alevosia.[17] Enriquez was, therefore, correctly convicted
of the crime of murder qualified by treachery.

FIRST DIVISION

At a period when most boys his age are still reveling in juvenile pursuits, Manuel Biasa was already
toiling in a mans world. He saw a co-worker, a drinking partner, die before his very eyes at the hands of his
patron. The murder weapon was his own knife. Fealty, gratitude and fear drove him to initially prevaricate,
which would have spared the treacherous assailant; his conscience, however, prodded him to later reveal
the truth. Eduardo Tupigs death was vindicated only because of the lad who proved in the end to be more
of a man than the older, wily Romeo Enriquez.

[G.R. No. 122099. July 5, 2000]

WHEREFORE, the assailed decision dated September 18, 1995, is AFFIRMED in toto. Costs
against accused-appellant.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. AGAPITO LISTERIO y PRADO and SAMSON
DELA TORRE y ESQUELA, accused,

SO ORDERED.

AGAPITO LISTERIO y PRADO, accused-appellant.

Narvasa, C.J., (Chairman), Kapunan, and Purisima, JJ., concur.

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

5
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 mid-frontal 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]

6
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?

7
A My brother.

COURT

Q While you were going back, was there any untoward incidents that happened?

In what particular part of his body was stabbed wound (sic)?

A Yes sir Hinarang po kami.

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.

Q Now, what particular place [where] you were waylaid, if you recall?

COURT

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.

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 Who were the persons that waylaid you?

Q And when you gain[ed] consciousness, what happened to your brother?

A Agapito Listerio, George and Marlon.

Q How about your brother, what happened to him?

A He was already dead.

Q How about you, what did you do?

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.

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)?

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 No, sir.
Q And you stand to your testimony that you never drink (sic) on August 14, 1991?
A Yes, sir.

A At the back of his body.

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?

Q Do you know the person or persons who was (sic) stabbed him?

A No, sir.

A Yes, sir.

Q And did you not have a drinking spree with George dela Torre?

Q Will you please inform the Honorable Court who was that persons was stabbed him?

A No, sir.

A Agapito, Marlon and George.

Q Marlon dela Torre?

COURT

A No, sir.

How many stabbed [him], if you know?

Q Bonifacio?

A Three (3), sir.

A With your borther (sic)?

8
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?

More explicitly

A No, sir.

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]

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.

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]

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]

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 accusedappellant 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

9
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, accusedappellant 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 accused-appellant 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

10
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.

(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.

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.

SO ORDERED.
Davide, Jr., (Chairman), Puno, Kapunan, and Pardo, JJ., concur.

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. 915843 of Frustrated Homicide and is sentenced to suffer an indeterminate penalty of Six

FIRST DIVISION
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:

11

was slight and superficial and would heal from one to seven days. [5] The doctor prescribed medicine for
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]

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

Ruben Rodil testified that he used to work as a taxi driver. He stopped driving in April 1998 after

afterwards. He did not see his brother Edgardo at the scene.

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

Edgardo declared that at about 1:00 p.m. on May 3, 1998, he was throwing garbage in front of

three children resided in Barangay San Isidro Labrador II, Dasmarias, Cavite, near the house of Esmeraldo

their house. Ruben arrived and he went inside the house to avoid a confrontation. Ruben banged the gate

Rivera and his brothers Ismael and Edgardo.

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.

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.

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]

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

On August 30, 2002, the trial court rendered judgment finding all the accused guilty beyond reasonable

and Edgardo, emerged from their house and ganged up on Ruben. Esmeraldo and Ismael mauled Ruben

doubt of frustrated murder. The dispositive portion of the decision reads:

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

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:

12
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:

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

The evidence and testimonies of the prosecution witnesses defeat the presumption
of innocence raised by petitioners. The crime has been clearly established with

wounds sustained by the victim, the conduct of the malefactors before, at the time, or immediately after the

13
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]

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.

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

The essential elements of an attempted felony are as follows:

1. The offender commences the commission of the felony directly by overt acts;

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

2. He does not perform all the acts of execution which should produce the felony;

treachery is the sudden and unexpected attack on the victim. [17] Even if the attack is frontal but is sudden

3. The offenders act be not stopped by his own spontaneous desistance;

and unexpected, giving no opportunity for the victim to repel it or defend himself, there would be treachery.
[18]

4. The non-performance of all acts of execution was due to cause or accident other
than his spontaneous desistance.[13]

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 first requisite of an attempted felony consists of two elements, namely:

The appellate court sentenced petitioners to suffer an indeterminate penalty of two (2) years of prision
(1) That there be external acts;

correccional in its minimum period, as minimum, to six years and one day of prision mayor in its maximum

(2) Such external acts have direct connection with the crime intended to be
committed.[14]

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

The Court in People v. Lizada[15] elaborated on the concept of an overt or external act, thus:

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

14

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 of prision
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. 166479

February 28, 2006

15
RODOLFO C. VELASCO, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
CHICO-NAZARIO, J.:
Before Us is a petition for review on certiorari which seeks to set aside the decision 1 of the Court of
Appeals in CA-G.R. CR No. 23366 dated 30 July 2004 which affirmed the decision2 of Branch 41 of the
Regional Trial Court (RTC) of Dagupan City in Criminal Case No. 98-02175-D dated 29 June 1999, finding
accused-petitioner Rodolfo C. Velasco guilty of Attempted Murder, and its Resolution 3 dated 21 December
2004 denying petitioners motion for reconsideration.
An Information4 dated 20 April 1998 charged petitioner with the crime of Attempted Murder committed as
follows:
That on or about the 19th day of April, 1998, in the City of Dagupan, Philippines, and within the jurisdiction
of this Honorable Court, the above-named accused, SN I RODOLFO C. VELASCO, being then armed with
a gun, with treachery and with intent to kill one FREDERICK MARAMBA, did then and there, wilfully,
unlawfully and criminally, attack, assault and use personal violence upon the latter by shooting him, hitting
him on the left upper arm, the said accused having thus commenced a felony directly by overt acts but did
not perform all the acts of execution which could have produced the crime of murder, by reason of some
cause or accident other than his own spontaneous desistance, to the damage and prejudice of said
FREDERICK MARAMBA.
When arraigned, petitioner, with the assistance of counsel de oficio, pleaded not guilty to the crime
charged.5
On 29 September 1998, the Hon. Luis M. Fontanilla, Executive Judge of RTC of Dagupan City, ordered the
release of petitioner after a surety bond was posted by the Mega Pacific Insurance Corporation in the
amount ofP120,000.00.6
The evidence is summarized by the trial court as follows:
The evidence of the prosecution tends to show that on April 19, 1998, at about 7:30 oclock in the morning,
private complainant Frederick Maramba was cleaning and washing his owner type jeep in front of his
house at Lasip Grande, Dagupan City when a motorized tricycle stopped near him. Accused Rodolfo
Velasco dashed out of the tricycle, approached the complainant and fired at him several times with a .45
caliber pistol. The accused missed with his first shot but the second one hit the complainant at the upper
arm, causing him to stumble on the ground. The complainant stood up and ran, while the accused
continued firing at him but missed.
The shooting incident was reported to the police sub-station in Malued District by Barangay Captain
Dacasin of Lasip Grande, describing the suspect as wearing a vest or a "chaleco." The police, composed
of SPO4 Romulo Villamil, PO3 Rolando Alvendo, and SPO1 Soliven respondent and pursued the accused

who proceeded on board a motorized tricycle to the highway going to Barangay Banaoang in Calasiao
town.
The police caught up with the tricycle and brought the accused to the police sub-station. A firearm (Exhibit
"A") protruding from the waistline of the accused, three (3) magazines (Exhibit "B", "B-1" & "B-2") and
fourteen (14) live ammunitions (Exhibits C" to "C-13") were confiscated from the possession of the
accused. The police also recovered seven (7) spent ammunitions (Exhibits "D" to "D-6") at the crime
scene. At the City Jail in Dagupan City where the accused was subsequently brought, the private
complainant Frederick Maramba identified and pointed to the accused as the one who fired at him, hitting
him on the upper left arm. Complainant identified the affidavit which he executed naming the accused as
his assailant (Exhibit "H") and who shot him on the morning of April 19, 1998 in front of his residence at
Lasip Grande.
Private complainant further testified that he was hospitalized and treated at the Region 1 Medical Center,
Dagupan City by Dr. Arturo de Vera, Jr. who issued a Medico-Legal Certificate stating that the victim
sustained, "Gunshot wound point of entry: 1.5 cm lateral aspect distal, 3rd arm left" and; "Gunshot wound
point of exit: 4 cm lateral aspect posterior, 3rd arm left" (Exhibit "I"). By reason of his wounds, complainant
incurred expenses for hospitalization and medicines in the total amount of P2,696.06 (Exhibit "J" to "J-14").
Armando Maramba, the driver of the tricycle in which the accused rode, testified that he picked up the
accused who was wearing a chaleco, at the intersection of Pogo-Lasip Road. Upon reaching the parked
jeep which was being washed by the private complainant, the accused ordered him to stop. The accused
alighted and fired several shots at the victim. Then the accused went back to the tricycle and ordered him
to proceed to Calasiao. The accused alighted at the intersection of the De Venecia Highway and Malued
Road and took another tricycle. Witness executed an affidavit before the Police Headquarters in Dagupan
City (Exhibit "G") and identified the accused as the one who shot the private complainant.
The accused, on the other hand, interposed the defense of alibi. He said that on April 18, 1998, he went to
a friends house in Lingayen, Pangasinan and spent the night there. The following morning, April 19, 1998,
between 6:00 to 7:00 oclock, he left Lingayen riding in the Volkswagen car of Berting Soriano. He alighted
at the corner of Banaoang diversion road. From there he took a tricycle and told the driver to bring him at
the foot of the bridge going to Bayambang. While on his way to Calasiao, he heard a jeep behind him
blowing its horn and when he looked back he saw three men on board pointing their guns at him. He told
the tricycle driver to stop and thereupon the three men approached him and introduced themselves as
policemen. They confiscated his gun and then brought him to the police station for interrogation.
Thereafter, the police lodged him in the City Jail of Dagupan.
Accused testified that he did not know personally the complaining witness and denied having fired at him.
He further said that his .45 caliber pistol which was seized from him by the police is licensed (Exhibit "2"). 7
In its decision dated 29 June 1999, the RTC of Dagupan City, Branch 41, found petitioner guilty of the
crime charged, disposing of the case in this wise:
WHEREFORE, finding accused Rodolfo C. Velasco guilty beyond reasonable doubt of the crime of
attempted murder, defined and penalized under Article 248, in relation to the 3rd par. of Arts. 6 and 51 of
the Revised Penal Code, he is hereby sentenced to suffer the indeterminate penalty of Four (4) years of
prision correccional, as minimum to Eight (8) years and One (1) day of prision mayor, as maximum.

16
Accused is further ordered to indemnify the complaining witness the amount of P2,696.00, as actual
damages.8

to harm, much less kill, the victim, the latter being a total stranger. He explains that since the identity of the
assailant is in doubt, motive becomes important and his alibi gains weight and value.15

The trial court gave credence to the testimonies of the private complainant Frederick Maramba and
Armando Maramba when they identified petitioner as the assailant. It rejected petitioners defense of alibi
saying it was not impossible for him to be at the crime scene when the crime was committed because the
place where he allegedly alighted from the car of a certain Berting Soriano was only about ten minutes
away. It concluded that his defense cannot prevail over the positive identification made by the prosecution
witnesses.

In a resolution dated 6 April 2005, the Court, without giving due course to the petition, required respondent
to file a Comment.16

On 1 July 1999, petitioner filed a Notice of Appeal signifying his intention to appeal to the Court of
Appeals.9
Pending appeal with the Court of Appeals, petitioner, after filing a Motion to Bail, was allowed to post bail in
the amount of P160,000.00.10 To obviate the possibility of flight, the Bureau of Immigration and
Deportation (BID) was directed to include petitioner in its hold departure list.11
On 30 July 2004, the Court of Appeals dismissed the appeal and affirmed the decision of the RTC. The
decretal portion of the decision reads:
WHEREFORE, for lack of merit, the appeal is DISMISSED. The assailed Decision dated June 29, 1999 of
the Regional Trial Court, Branch 41 of Dagupan City, in Criminal Case No. 98-02175-D, is hereby
AFFIRMED. Costs against accused-appellant.12
Petitioner moved for a reconsideration of the decision which motion was denied per resolution13 dated 21
December 2004.
Petitioner is now before us via petition for review on certiorari, raising the following grounds:
I
THE COURT OF APPEALS GRAVELY ERRED WHEN IT AFFIRMED THE DECISION OF THE
REGIONAL TRIAL COURT.

In its Comment17 dated 8 September 2005, respondent People of the Philippines, through the Office of
the Solicitor General (OSG), argues that the factual findings of the Court of Appeals cannot be reviewed
since the issue (i.e., positive identification) petitioner is raising involves the credibility of witnesses and the
weighing of evidence. It asserts that since the same deals with a question of fact and there being no
instance present to take the case out of the general rule that factual findings of the Court of Appeals may
be reviewed, a review thereof cannot be made because only a question of law can be re-examined if a
petition for review on certiorari under Rule 45 of the Rules of Court has been filed. It adds that even if the
case is to be decided on the merits, the petition likewise will fail.
In his Reply,18 petitioner submits that a review of the facts of the case is justified on the ground that the
Court of Appeals sanctioned substantial and jurisprudential departures committed by the trial court. He
maintains that (1) the trial court precipitately observed that alibi is a weak defense; (2) the trial court did not
consider that the prosecution had no evidence proving his intention to kill; (3) the trial court did not
consider the fact that victim did not know him and vice-versa; (4) it was impossible for him, a navy man a
protector of the people to have failed to fatally hit the victim after firing seven shots; and (5) the instant
case is a frame up.
On 17 October 2005, the Court gave due course to the petition and required the parties to submit their
respective memoranda.19
In his memorandum, petitioner further argues that the findings of fact in this case should be reviewed
because the Court of Appeals erroneously restated the factual findings of the trial court when it purposely
omitted and added words changing the tenor of the shooting incident as found by the trial court. He adds
that the findings of fact of the trial court do not support a conviction of attempted murder but only attempted
homicide as there was no treachery since private complainant was still able to focus his eyes on the
gunman until he was fired upon. Further, he points out that the Court of Appeals made different findings as
to where the seven spent shells were recovered. He maintains there was suppression of evidence when
the prosecution failed to present a ballistic report on the seven empty shells that would show the identity of
the assailant. In addition, he claims that since there was suppression of evidence on the part of the
prosecution, the testimony of Armando Maramba is not credible, he being a relative of the victim.

II
THE COURT OF APPEALS GRAVELY ERRED WHEN IT DENIED THE MOTION FOR
RECONSIDERATION PER THE RESOLUTION DATED DECEMBER 21, 2004.14
Petitioner invokes the defenses of denial and alibi. He denies having shot the victim. He alleges that the
prosecution was not able to sufficiently establish the identity of the assailant because the Barangay
Chairman, who reported the incident to the policemen, identified the assailant as one wearing a "chaleco,"
was not presented to corroborate the testimony of petitioner. He contends that had the Barangay Chairman
been presented, the latters testimony would have been adverse to the prosecution. Instead, he points out
that the prosecution presented police officers who were not eyewitnesses. He adds that he had no motive

Petitioner primarily invokes the defenses of denial and alibi. It is his claim that the prosecution failed to
conclusively establish the identity of the assailant and that he was merely framed-up.
At the outset, it must be stressed that the instant petition for review on certiorari was filed pursuant to Rule
45 of the Rules of Court where a review is not a matter of right but of sound judicial discretion and will be
granted only when there are special and important reasons therefor. It is not the function of this Court to reexamine the evidence submitted by the parties unless the findings of fact of the Court of Appeals are not
supported by evidence on record or the judgment is based on a misapprehension of facts. This Court is
limited to the review or revision of errors of law and not to analyze or weigh the evidence all over again. 20

17
We agree with the OSG that as ruled by this Court, no questions of facts may be raised in this Court under
Rule 45 of the Rules of Court, unless, among other grounds, there is clear and convincing proof that the
judgment of the Court of Appeals is based on a misapprehension of facts or when the Court of Appeals
failed to notice and appreciate certain relevant facts of substance which if properly considered would justify
a different conclusion, and when there is a grave abuse of discretion in the appreciation of facts in the light
of the evidence on record. Anything less will not suffice to overturn the decision of the Court of Appeals
affirming on appeal the decision of the trial court. It bears stressing that the findings of facts of the trial
court, its calibration of the testimonial evidence of the parties and the assessment of the credibility and
probative weight of the evidence of the parties and its conclusion anchored on its findings are given high
respect if not conclusive effect by this Court, especially if affirmed by the Court of Appeals because of the
unique advantage of the trial court of observing and monitoring the demeanor, conduct and deportment of
the witnesses as they regale the court with their testimonies. The exception to this rule is when the trial
court ignored, overlooked, misconstrued or misappreciated cogent facts and circumstances of substance
which if considered would alter the outcome of the case.21 After scrutinizing the records of the case and
thoroughly evaluating all the evidence proffered, we find no reason to deviate from the findings of facts of
the trial court as affirmed by the Court of Appeals.
In the case at bar, the testimonies of private complainant Frederick Maramba and Armando Maramba were
given credence and full probative weight and credence by the trial court in the identification of petitioner as
the assailant. Private complainant saw petitioner alight from the tricycle of Armando Maramba before he
successively shot at him at a distance of about four meters while chasing him for 25 to 30
meters.22 Armando Maramba witnessed the shooting because he was the driver of the tricycle in which
petitioner rode in going to the house of private complainant and in leaving the crime scene.23 After the
shooting incident, private complainant went to the City Jail and identified petitioner as the person who shot
him.24 At the Dagupan City Police Station, Armando Maramba pointed to petitioner as the assailant not
because he saw a man wearing a chaleco, but because it was he whom he saw shoot the private
complainant.25
Petitioner asks that the findings of fact of the case should be reviewed because the Court of Appeals
erroneously restated the factual findings of the trial court when it purposely omitted and added words
changing the tenor of the shooting incident as found by the trial court. Petitioner said the Court of Appeals
purposely added the word "suddenly" and replaced the phrase "near him" with "in front of." He adds that
the Court of Appeals added the phrase "without any warning" and removed the phrase "approached the
complainant." He even claims that the Court of Appeals changed the manner how private complainant was
shot, when he was hit, and how he stumbled and how he was able to stand up and continue running. He
further states that the Court of Appeals made a different finding as to where the seven spent shells were
recovered. He points out that the Court said the seven spent shells were recovered from the accused while
the trial court found that the same were found in the crime scene.
As above discussed, the findings of the trial court on its assessment of the credibility of the witnesses and
their testimonies and the probative weight thereof, are accorded by the appellate court high respect if not
conclusive effect, unless the trial court ignored, misconstrued or misinterpreted facts and circumstances,
which if considered, would alter the outcome of the case.26 In the case at bar, the addition or omission of
these words, and the difference between the findings of the trial court and the Court of Appeals as to where
the seven spent shells were found, are too minor and inconsequential to affect the outcome of this case.
These, even if considered, would not overturn the established fact that petitioner was identified as the
assailant. Nothing in the record shows that there was any inconsistency as regards the identity of the
assailant. Both private complainant and Armando Maramba were one in pointing to petitioner as the culprit.

Petitioner interposes the defenses of denial and alibi. He denies participation in the crime claiming that he
was aboard a tricycle on his way to Calasiao, Pangasinan, when policemen arrested him and brought him
to the Dagupan Police Station. On the other hand, the victim himself identified petitioner as his attacker
which statement was corroborated by Armando Maramba.
To be believed, denial must be buttressed by strong evidence of non-culpability. Otherwise, it is purely selfserving and without merit.27 Settled is the rule that the defense of alibi is inherently weak and crumbles in
the light of positive declarations of truthful witnesses who testified on affirmative matters.28 Greater
weight is given to the categorical identification of the accused by the prosecution witnesses than to the
accused's plain denial of participation in the commission of the crime. 29 There being no strong and
credible evidence adduced to overcome the testimonies of private complainant and Armando Maramba
pointing to him as the culprit, no weight can be given petitioners denial.
Petitioners defense of alibi likewise fails. As against positive identification by prosecution witnesses, the
accuseds alibi is worthless.30 Having been identified by two credible witnesses, petitioner cannot escape
liability. Moreover, for alibi to prosper, it must be proven that during the commission of the crime, the
accused was in another place and that it was physically impossible for him to be at the locus
criminis.31 Courts view the defense of alibi with suspicion and caution not only because it is inherently
weak and unreliable, but also it can be fabricated easily.32As found by the trial court, it was not physically
impossible for petitioner to be at the crime scene when the crime was committed since it only takes a tenminute ride from the place where he allegedly alighted from the car of one Berting Soriano to the crime
scene. We have held that:
Alibi, the plea of having been elsewhere than at the scene of the crime at the time of the commission of the
felony, is a plausible excuse for the accused. Let there be no mistake about it. Contrary to the common
notion, alibi is in fact a good defense. But to be valid for purposes of exoneration from a criminal charge,
the defense of alibi must be such that it would have been physically impossible for the person charged with
the crime to be at the locus criminis at the time of its commission, the reason being that no person can be
in two places at the same time. The excuse must be so airtight that it would admit of no exception. Where
there is the least possibility of accuseds presence at the crime scene, the alibi will not hold water. 33
Petitioner contends there was suppression of evidence when the prosecution did not place on the witness
stand Barangay Captain Dacasain of Lasip Grande and when it failed to present a ballistic report on the
seven empty shells because both are vital evidence to prove the identity of the assailant.
We find such contention untenable.
As to the non-presentation of Barangay Captain Dacasin, the same does not constitute suppression of
evidence. Barangay Captain Dacasin was not an eyewitness to the shooting incident contrary to the claim
of petitioner. Although he was the one who reported the incident to the police station, he was merely
informed by Armando Maramba that the person who shot private complainant wore a "chaleko" or
vest.34 Thus, not being an eyewitness, his testimony, even if taken, would have nothing to do with the
identification of the assailant. If he really wanted to have Barangay Captain Dacasin take the witness
stand, he could have asked the trial court for a subpoena ad testificandum. This, he did not do.

18
As regards the failure of the police to present a ballistic report on the seven spent shells recovered from
the crime scene, the same does not constitute suppression of evidence. A ballistic report serves only as a
guide for the courts in considering the ultimate facts of the case.35 It would be indispensable if there are
no credible eyewitnesses to the crime inasmuch as it is corroborative in nature.36 The presentation of
weapons or the slugs and bullets used and ballistic examination are not prerequisites for conviction.
The corpus delicti and the positive identification of accused-appellant as the perpetrator of the crime are
more than enough to sustain his conviction.37 Even without a ballistic report, the positive identification by
prosecution witnesses is more than sufficient to prove accuseds guilt beyond reasonable doubt. 38 In the
instant case, since the identity of the assailant has been sufficiently established, a ballistic report on the
slugs can be dispensed with in proving petitioners guilt beyond reasonable doubt.
Petitioners asseveration that it is unthinkable for him to shoot private complainant because he has no
motive to harm, much less kill the latter, he being a total stranger, deserves scant consideration. It must be
stressed that motive is a state of (ones) mind which others cannot discern. It is not an element of the
crime, and as such does not have to be proved. In fact, lack of motive for committing a crime does not
preclude conviction. It is judicial knowledge that persons have been killed or assaulted for no reason at
all.39 Even in the absence of a known motive, the time-honored rule is that motive is not essential to
convict when there is no doubt as to the identity of the culprit.40 Motive assumes significance only where
there is no showing of who the perpetrator of the crime was.41 In the case at bar, since petitioner has
been positively identified as the assailant, the lack of motive is no longer of consequence.
Petitioner argues that the testimony of prosecution witness Armando Maramba should not be given weight
because the same is biased and incredible on the ground that he is the uncle of the private complainant.
This argument does not inspire belief. The blood relationship of Armando Maramba and private
complainant would not render the formers testimony unworthy of belief. On the contrary, relationship could
strengthen the witnesses credibility, for it is unnatural for an aggrieved relative to falsely accuse someone
other than the actual culprit. Their natural interest in securing the conviction of the guilty would deter them
from implicating a person other than the true offender.42 It is settled that where there is no evidence and
nothing to indicate that the principal witnesses for the prosecution were actuated by improper motive, the
presumption is that they were not so actuated and their testimonies are entitled to full faith and
credit.43 The weight of the testimony of witnesses is not impaired nor in anyway affected by their
relationship to the victim when there is no showing of improper motive on their part.44 Jurisprudence
likewise holds that if an accused had really nothing to do with a crime, it would be against the natural order
of events and of human nature, and against the presumption of good faith, that a prosecution witness
would falsely testify against him.45 In the case before us, aside from petitioners claim that he was
framed-up, there is nothing in the records that shows that Armando Maramba had ulterior motives in
testifying against him. Necessarily, the testimony of Armando Maramba must be given full credit.
Petitioner claims that as a navy man who is trained to kill enemies of the state, a "protector of the people,"
he could not have acted in the manner which the prosecution pointed out. He said it is against human
experience to attempt to kill a person in the presence of a witness and in broad daylight, and that it is
preposterous that after firing seven shots at close range, he failed to fatally hit the private complainant. All
these, he said, only point to a different assailant.

We are not convinced. The records show that the shooting happened at around 7:30 a.m. The fact that the
shooting occurred in broad daylight does not render its commission impossible.46 This Court takes notice
that it is not unusual that killings are perpetrated in front of witnesses. In the instant case, the attempted
killing was witnessed by Armando Maramba, the driver of the tricycle which petitioner rode in going to, and
in leaving, the crime scene.
Petitioner argues that he could not have been the assailant because it was simply impossible for him,
being a navy man, not to fatally hit private complainant after firing seven shots at close range. In effect,
what he is saying is that the bungled killing cannot be the handiwork of an experienced soldier like him.
Such an argument does not hold water. In the case of People v. Mamarion,47 we brushed aside the very
same argument raised by the accused therein who was an experienced military man. We ruled that an
accused is not entitled to an acquittal simply because of his previous, or even present, good moral
character and exemplary conduct. The fact that petitioner was a navy man -- a protector of the people -does not mean that he is innocent of the crime charged or that he is incapable of doing it. This argument
fails in light of the identification made by the victim himself and by Armando Maramba that it was petitioner
who was the assailant.
Finally, petitioner submits that if ever he committed a crime, he merely committed attempted homicide. He
maintains there was no sudden firing because the victim testified he was observing the alleged gunman for
a period of ten seconds before the latter finally drew his .45 caliber pistol and fired at him. After the first
shot, the victim was able to run away.
The lower court was correct in appreciating treachery in the commission of the crime. There is treachery
when the following essential elements are present, viz: (a) at the time of the attack, the victim was not in a
position to defend himself; and (b) the accused consciously and deliberately adopted the particular means,
methods or forms of attack employed by him.48 The essence of treachery is the swift and unexpected
attack on an unarmed victim without the slightest provocation on the part of the victim. 49 It was clearly
established that private complainant, while washing his jeep, was suddenly fired upon by petitioner for no
reason at all. The suddenness of the shooting and the fact that he was unarmed left private complainant
with no option but to run for his life. It is likewise apparent that petitioner consciously and deliberately
adopted his mode of attack making sure that private complainant will have no chance to defend himself by
reason of the surprise attack. Petitioners claim that the shooting was not sudden because private
complainant was observing him from the time he alighted from the tricycle is belied by the fact that private
complainant was not able to run when he was first fired upon. Though private complainant was looking at
him, the former was not forewarned by any outward sign that an attack was forthcoming. It was only after
the first shot that he felt his life was in danger.
Having commenced the criminal act by overt acts but failing to perform all acts of execution as to produce
the felony by reason of some cause other than his own desistance, petitioner committed an attempted
felony. Petitioner already commenced his attack with a manifest intent to kill by shooting private
complainant seven times, but failed to perform all the acts of execution by reason of causes independent
of his will, that is, poor aim and the swiftness of the latter. Private complainant sustained a wound on the
left arm that is not sufficient to cause his death. The settled rule is that where the wound inflicted on the
victim is not sufficient to cause his death, the crime is only attempted murder, since the accused did not
perform all the acts of execution that would have brought about death.50
The penalty imposed by the trial court is correct. Under Article 51 of the Revised Penal Code, the penalty
lower than two degrees than that prescribed by law for the consummated felony shall be imposed upon the

19
principal in an attempted felony. Under Article 248 of the Revised Penal Code, the penalty for murder is
reclusion perpertua to death. The penalty two degrees lower is prision mayor. Applying the Indeterminate
Sentence Law, and there being no aggravating or mitigating circumstances, the minimum of the penalty to
be imposed should be within the range of prision correccional, and the maximum of the penalty to be
imposed should be within the range of prision mayor in its medium period.
WHEREFORE, in view of the foregoing, the petition is DENIED. Costs against petitioner. SO ORDERED.

YNARES-SANTIAGO, J.:
This is an appeal from the decision [1] of the Regional Trial Court of Palawan and Puerto Princesa
City, Branch 47, in Criminal Case Nos. 9359, 9401, and 9489, convicting accused-appellant of the crimes
of murder, attempted murder and frustrated murder, respectively.
The informations filed against accused-appellant read:
In Criminal Case No. 9359, for murder:
That on or about the 6th day of March, 1991, in the afternoon, at Barangay Tagumpay, Puerto Princesa
City, Philippines, and within the jurisdiction of this Honorable Court, the said accused, with treachery and
evident premeditation, with intent to kill and while armed with a knife, did then and there willfully, unlawfully
and feloniously assault, attack and stab therewith one Elsa Villon Rodriguez thereby inflicting upon the
latter stabbed (sic) wound on the chest, which was the immediate cause of her death.
CONTRARY TO LAW.[2]
In Criminal Case No.9401, for attempted murder:
That on or about the 6th day of March, 1991, in the afternoon, at Bgy. Tagumpay, Puerto Princesa City,
Philippines and within the jurisdiction of this Honorable Court, the said accused, with intent to kill, with
treachery and evident premiditation (sic) and while armed with a knife, did then and there willfully,
unlawfully and feloniously assault, attack and stab therewith one Ricardo Maglalang thereby inflicting upon
the latter physical injuries on the different parts of his body, thus commencing the commission of the crime
of murder directly by overt acts and does not perform all the acts of execution which would produce the
felony by reason of some causes or accident other than his own spontaneous desistance that is, by the
timely and able medical assistance rendered to said Ricardo Maglalang which prevented his death.
CONTRARY TO LAW.[3]
In Criminal Case No.9489, for frustrated murder:

FIRST DIVISION

[G.R. No. 129291. July 3, 2002]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ENRICO A. VALLEDOR, accused-appellant.

DECISION

That on or about the 6th day of March, 1991 at Bgy. Tagumpay, Puerto Princesa City, Philippines and
within the jurisdiction of this Honorable Court the above-named accused, with intent to kill with treachery
and evidence (sic) premeditation and while armed with a butcher knife, did then and there willfully,
unlawfully and feloniously assault, attack and stab therewith on (sic)Roger Cabiguen, hitting him on his
right forearm, thus performing all the acts of execution which produce the crime of murder as a
consequence but which nevertheless did not produce it by reason of causes independent of his will, that is,
by the timely and able medical attendance rendered to him which saved his life.
CONTRARY TO LAW.[4]
After his arrest, accused-appellant was intermittently confined at the National Center for Mental
Health. Thus, he was arraigned only on February 19, 1993 wherein he pleaded not guilty. [5] Thereafter, the
cases were archived until November 15, 1994, when accused-appellant was declared mentally fit to
withstand trial.[6] This time, accused-appellant admitted commission of the crimes charged but invoked the
exempting circumstance of insanity. The lower court thus conducted reverse and joint trial, at which the
following facts were established:

20
On March 6, 1991, at around 1:45 in the afternoon, Roger Cabiguen was in his house at Burgos
Street, Barangay Tagumpay, Puerto Princesa City. He was working on a lettering job inside his bedroom
together with his first cousin, then 25-year old Elsa Rodriguez, and his friends, Simplicio Yayen and
Antonio Magbanua. Roger was working at his table and seated on his bed while Elsa was across the table.
Antonio was on the left side, while Simplicio was seated near the door, on the right side of Roger.[7]

On March 11, 1991, Dr. Manuel Bilog, City Health Officer I of Puerto Princesa City interviewed
accused-appellant and thereafter made the following conclusions and recommendation, to wit:

All of a sudden, accused-appellant entered the room; uttered Rogers nickname (Jer) and
immediately attacked him with a knife, but Roger was able to parry the thrust and was stabbed instead on
the right forearm. Accused-appellant then stabbed Elsa Rodriguez on the chest and said, Ako akabales
den, Elsa. (I had my revenge, Elsa). Thereafter, accused-appellant fled, leaving the stunned Simplicio and
Antonio unharmed.[8]

Cooperative; talkative but incoherent

Disoriented as to time, place and person

Roger and Elsa were immediately brought to the hospital. On their way out, Antonio noticed a
commotion and saw that Ricardo Maglalang, a neighbor of the victim, was wounded.Antonio learned from
the by-standers that Ricardo was likewise stabbed by accused-appellant.[9]

Respectfully recommending that subject patient be committed to the National Mental Hospital, Metro
Manila for proper medical care and evaluation soonest.[17]

Upon reaching the hospital, Elsa was declared dead on arrival. Roger on the other hand was treated
for the 5-centimeter wound sustained by him on his right forearm.[10]

The defense offered in evidence the April 27, 1992 medical findings on accused-appellant by Dr.
Guia Melendres of the National Center for Mental Health, pertinent portion of which reads:

Prosecution witness Roger Cabiguen testified that sometime in 1980, accused-appellant suspected
him of killing his pet dog. In 1989, accused-appellant courted Elsa but she jilted him.On one occasion, Elsa
spat on and slapped accused-appellant.[11]

REMARKS AND RECCOMENDATION:

Accused-appellants defense of insanity was anchored on the following facts:

Accused-appellant, then 30 years of age, was a resident of Barangay Tagumpay, Puerto Princesa
City, and employed as provincial jail guard at the Palawan Provincial Jail. Sometime in January 1990,
Pacita Valledor, his mother noticed that accused-appellant was behaving abnormally. For days he was
restless and unable to sleep. He likewise complained that their neighbors were spreading rumors that he
was a rapist and a thief. This prompted Pacita to bring his son to Dr. Deriomedes de Guzman, a medical
practitioner. Pacita disclosed to Dr. de Guzman that insanity runs in their family. After examining accusedappellant, Dr. de Guzman diagnosed him as suffering from psychosis with schizophrenia. [12] He prescribed
a depressant known as Thoracin, which kept accused-appellant sane for a period two months.[13]
On March 4, 1991, Pacita noticed that accused-appellant was again acting strangely. She left to buy
Thoracin but when she returned he was nowhere to be found.[14]
On March 6, 1991, at around 6:00 in the morning, accused-appellant was seen swimming across
the river of Barangay Caruray, San Vicente, Palawan. Barangay Captain Rufino Nuez and Barangay
Councilman Antonio Sibunga took accused-appellant out of the water and took him on board a pump
boat. Inside the boat, accused-appellant kept on crying and uttering words to the effect that his family will
be killed. Suspecting that accused-appellant was mentally ill, Barangay Captain Nuez, asked Councilman
Sibunga to accompany accused-appellant to Puerto Princesa City. Sibunga acceded and thereafter took a
jeepney with accused-appellant at Barangay Bahile. At about 1:00 in the afternoon, they reached Junction
I at the intersection of the National Highway and Rizal Avenue, Puerto Princesa City. Suddenly, accusedappellant jumped off the jeepney. Sibunga tried but failed to chase accused-appellant, who immediately
boarded a tricycle. Later that day, he learned that accused-appellant killed and harmed somebody.[15]
Meanwhile, at around 2:00 in the afternoon of March 6, 1991, Pacita Valledor was awakened by her
daughter who told her that accused-appellant has returned. She rushed out of the house and saw him
standing in the middle of the road, dusty and dirty. She asked him where he came from but his answer
was Pinatay niya kayong lahat. Pacita dragged him inside the house and later learned that he killed and
wounded their neighbors. Thirty minutes later, accused-appellant was arrested and detained at the city jail.
[16]

PHYSICAL EXAMINATION:

DISPOSITION AND RECOMMENDATION:

In view of the foregoing history, observations, physical mental and psychological examinations the patient
Enrico Valledor y Andusay is found suffering from Psychosis or Insanity classified under
Schizophrenia. This is a thought disorder characterized by deterioration from previous level of functioning,
auditory hallucination, ideas of reference, delusion of control, suspiciousness, poor judgment and absence
of insight.
Likewise, he is found to be suffering from Psychoactive Substance Use Disorder, Alcohol, abuse. This is
characterized by a maladaptive pattern of psychoactive substance use indicated by continued use despite
knowledge of having a persistent or recurrent social, occupational, psychological or physical problems. [18]
Dr. Oscar Magtang, a psychiatrist assigned at the Medical Service of the PNP, Puerto Princesa City
was likewise presented by the defense to interpret the aforecited findings of Dr. Melendres. [19]
On February 28, 1997, the trial court rendered the assailed judgment of conviction. The dispositive
portion thereof reads:
WHEREFORE, premises considered, the accused ENRICO A. VALLEDOR is hereby found guilty beyond
reasonable doubt of the crimes of MURDER in Criminal Case No. 9359; of FRUSTRATED MURDER in
Criminal Case No. 9489; and of ATTEMPTED MURDER in Criminal Case No. 9401 as charged
herein. Accordingly he is hereby sentenced to suffer the penalty of reclusion perpetua in Criminal Case No.
9359; reclusion perpetua in Criminal Case No. 9489; and imprisonment of from EIGHT (8) YEARS and
ONE (1) DAY to TEN (10) YEARS in Criminal Case No. 9401. It is understood that the accused shall serve
these penalties successively or one after the other.
The accused is also ordered to indemnify the heirs of the deceased victim Elsa Villon Rodriguez the sum of
P50,000.00 and to indemnify the victim Roger Cabiguen, the sum of P14,000.00 as actual damages, and
the sum P15,000.00 for loss of income.
Considering that the accused is found to be suffering from a serious mental disorder at present as certified
to by the National Center for Mental Health, Mandaluyong City, Metro Manila, the service of his sentence is

21
hereby ordered SUSPENDED pursuant to Article 12 and 79 of the Revised Penal Code. He (Enrico
Valledor) is ordered shipped to and confined at the National Center for Mental Health, Mandaluyong City,
Metro Manila, for his treatment, until such time that he becomes fit for the service of his sentence at the
national penitentiary, Muntinlupa, Metro Manila. As to his civil liability, the same is subject to execution after
this judgment shall have become final executory.
IT IS ORDERED.[20]
Accused-appellant interposed this appeal and raised the lone assignment of error that:
THE LOWER COURT ERRED IN CONVICTING THE ACCUSED DESPITE THE FACT THAT WHEN HE
ALLEGEDLY COMMITTED THE OFFENSE CHARGED HE WAS MENTALLY ILL, OUT OF HIS MIND OR
INSANE AT THE (sic) TIME.[21]
The appeal has no merit.
In considering a plea of insanity as a defense, the starting premise is that the law presumes all
persons to be of sound mind. Otherwise stated, the law presumes all acts to be voluntary, and it is
improper to presume that acts were done unconsciously.[22]
In People v. Estrada,[23] it was held that:
In the eyes of the law, insanity exists when there is a complete deprivation of intelligence in committing the
act. Mere abnormality of the mental faculties will not exclude imputability. The accused must be "so insane
as to be incapable of entertaining a criminal intent." He must be deprived of reason and act without the
least discernment because there is a complete absence of the power to discern or a total deprivation of
freedom of the will.
Since the presumption is always in favor of sanity, he who invokes insanity as an exempting circumstance
must prove it by clear and positive evidence. And the evidence on this point must refer to the time
preceding the act under prosecution or to the very moment of its execution.
Insanity is evinced by a deranged and perverted condition of the mental faculties which is
manifested in language and conduct. An insane person has no full and clear understanding of the nature
and consequences of his acts. Hence, insanity may be shown by the surrounding circumstances fairly
throwing light on the subject, such as evidence of the alleged deranged person's general conduct and
appearance, his acts and conduct consistent with his previous character and habits, his irrational acts and
beliefs, as well as his improvident bargains. The vagaries of the mind can only be known by outward acts,
by means of which we read thoughts, motives and emotions of a person, and through which we determine
whether the acts conform to the practice of people of sound mind. [24]
In the case at bar, accused-appellant failed to discharge the burden of overcoming the presumption
of sanity at the time of the commission of the crime. The following circumstances clearly and unmistakably
show that accused-appellant was not legally insane when he perpetrated the acts for which he was
charged:
1)
Simplicio
Yayen
was
positioned
nearest
to
accusedappellant but the latter chose to stab Roger and Elsa; 2) Accused-appellant called out the nickname of
Roger before stabbing him; 3) Simplicio Yayen and Antonio Magbanua who were likewise inside the room
were left unharmed; 4) Accused-appellant, a spurned suitor of Elsa, uttered the words, Ako akabales den,
Elsa. (I had my revenge, Elsa) after stabbing her; and 5) Accused-appellant hurriedly left the room after
stabbing the victims.

Evidently, the foregoing acts could hardly be said to be performed by one who was in a state of a
complete absence of the power to discern. Judging from his acts, accused-appellant was clearly aware
and in control of what he was doing as he in fact purposely chose to stab only the two victims. Two other
people were also inside the room, one of them was nearest to the door where accused-appellant emerged,
but the latter went for the victims. His obvious motive of revenge against the victims was accentuated by
calling out their names and uttering the words, I had my revenge after stabbing them. Finally, his act of
immediately fleeing from the scene after the incident indicates that he was aware of the wrong he has
done and the consequence thereof.
Accused-appellants acts prior to the stabbing incident to wit: crying; swimming in the river with his
clothes on; and jumping off the jeepney; were not sufficient to prove that he was indeed insane at the time
of the commission of the crime. As consistently held by this Court, A man may act crazy but it does not
necessarily and conclusively prove that he is legally so. [25]Then, too, the medical findings showing that
accused-appellant was suffering from a mental disorder after the commission of the crime, has no bearing
on his liability. What is decisive is his mental condition at the time of the perpetration of the offense. Failing
to discharge the burden of proving that he was legally insane when he stabbed the victims, he should be
held liable for his felonious acts.
In Criminal Case No. 9489, accused-appellant should be held liable only for attempted murder and
not frustrated murder. The wound sustained by Roger Cabiguen on his right forearm was not fatal. The
settled rule is that where the wound inflicted on the victim is not sufficient to cause his death, the crime is
only attempted murder, since the accused did not perform all the acts of execution that would have brought
about death.[26]
Pursuant to Article 51 of the Revised Penal Code, the penalty to be imposed upon the principal of an
attempted crime shall be lower by two degrees than that prescribed for the consummated felony. Before its
amendment by R.A. No. 7659, Article 248 provided that the penalty for murder was reclusion temporal in
its maximum period to death. Under Article 61(3), the penalty two degrees lower would be prision
correccional maximum to prision mayor medium. As there is no modifying circumstance, the medium
period of the penalty, which is prision mayor minimum, should be imposed. Under the Indeterminate
Sentence Law, accused-appellant is entitled to a minimum penalty of arresto mayor in its maximum period
to prision correcional in its medium period, the penalty next lower than the penalty for attempted murder.[27]
For the murder of Elsa Rodriguez, in Criminal Case No. 9359, the trial court correctly imposed upon
accused-appellant the penalty of reclusion perpetua, considering that no aggravating or mitigating
circumstance was proven by the prosecution.
Accused-appellants civil liability must be modified. Not being substantiated by evidence, the award
of P14,000.00 as actual damages, and P15,000.00 for loss of income, to Roger Cabiguen in Criminal Case
No. 9489, should be deleted. However, in lieu thereof, temperate damages under Article 2224 of the Civil
Code may be recovered, as it has been shown that Roger Cabiguen suffered some pecuniary loss but the
amount thereof cannot be proved with certainty. For this reason, an award of P10,000.00 by way of
temperate damages should suffice.[28]
In addition to the amount of P50,000.00 as civil indemnity which was properly awarded by the trial
court in Criminal Case No. 9359, the heirs of Elsa Rodriguez are entitled to another P50,000.00 as moral
damages which needs no proof since the conviction of accused-appellant for the crime of murder is
sufficient justification for said award.[29] The heirs of the deceased are likewise entitled to the amount of
P29,250.00 representing actual damages[30] based on the agreement of the parties.[31]
WHEREFORE, in view of all the foregoing, the decision of the Regional Trial Court of Palawan and
Puerto Princesa City, Branch 47, is MODIFIED as follows:

22
1. In Criminal Case No. 9359, accused-appellant Enrico A. Valledor is hereby found guilty beyond
reasonable doubt of the crime of murder and is sentenced to suffer the penalty ofreclusion perpetua; and
to indemnify the heirs of the deceased Elsa Rodriguez the following amounts: P50,000.00 as civil
indemnity, P50,000.00 as moral damages and P29,250.00 as actual damages;
2. In Criminal Case No. 9489, accused-appellant is found guilty beyond reasonable doubt only of the crime
of attempted murder and is sentenced to an indeterminate penalty of four (4) years and two (2) months
of prision correccional, as minimum, to eight (8) years of prision mayor, as maximum; and to indemnify
Roger Cabiguen in the amount of P10,000.00 by way of temperate damages;
3. In Criminal Case No. 9401, accused-appellant is found guilty beyond reasonable doubt of the crime of
attempted murder and is sentenced to an indeterminate penalty of four (4) years and two (2) months
of prision correccional, as minimum, to eight (8) years of prision mayor, as maximum.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Vitug, Kapunan, and Austria-Martinez, JJ., concur.

SECOND DIVISION

[G.R. No. 139970. June 6, 2002]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JIMMY DELA CRUZ Y QUIMPO, accusedappellant.
DECISION
QUISUMBING, J.:

23
Before us is the appeal from the decision [1] dated July 7, 1999, of the Regional Trial Court of Kalibo,
Aklan, Branch 2, in Criminal Case No. 5270, convicting accused-appellant JIMMY DELA CRUZ y QUIMPO
of murder and sentencing him to reclusion perpetua.
The Information against him alleged:
The undersigned Third Assistant Provincial Prosecutor of Aklan hereby accuses JIMMY DELA CRUZ y
QUIMPO of Barangay Mobo, Kalibo, Aklan of the crime of MURDER, committed as follows:

wound could have been inflicted by the assailant while facing the victim. [4] His post-mortem examination
revealed:
EXTERNAL EXAMINATION:
- (+) Stabbed Wound, (L) MCL, Level of 6th Intercostal Space, 3 cm in length.
INTERNAL EXAMINATION:

That on or about the 1st day of September, 1998 in the evening, in Barangay Tigayon, Municipality of
Kalibo, Province of Aklan, Republic of the Philippines, and within the jurisdiction of this Honorable Court,
the above-named accused, while armed with a knife, with treachery and with intent to kill, did then and
there willfully, unlawfully and feloniously attack, assault and stab one ARNULFO INOCENCIO, inflicting
upon the latter physical injuries, to wit:
EXTERNAL EXAMINATION:
- (+) Stabbed Wound, (L) MCL, Level of 6th Intercostal Space, 3 cm in length.
INTERNAL EXAMINATION:
- (+) Stabbed Wound, Anterior Pericardium, 3 cm
- (+) Stabbed Wound/Perforation of Right Ventricle, 3 cm
- (+) Blood, 50 cc Pericardial Space
as per Post-Mortem Examination Finding and Certificate of Death, respectively, issued by Segundo L.
Anayan, Jr., M.D., Medical Officer III of the Dr. Rafael S. Tumbokon Memorial Hospital, Kalibo, Aklan,
copies of which are hereto attached as Annexes A and B, and made as an integral part hereof, and which
injuries sustained by the victim have caused his instant death.
That by reason of the unlawful acts of the accused, the heirs of the victim have suffered actual and
compensatory damages in the amount of P50,000.00.
CONTRARY TO LAW.[2]
On December 1, 1998 appellant, assisted by counsel de oficio, entered a plea of not guilty to the
offense charged.[3] During the plea-bargaining stage, appellant proposed to plead guilty to the lesser crime
of homicide, claiming to have acted in self-defense. However, the family of the victim rejected such
offer. After his arraignment, trial ensued.
The prosecution presented the following witnesses, namely: Dr. Segundo Anayan, Jr., Jovelyn
Felizario, Glen Cipriano, and SPO4 Dioscoro Tolentino.
DR. SEGUNDO ANAYAN, JR., Medical Officer III of Dr. Rafael S. Tumbokon Memorial Hospital
testified that he conducted an autopsy on the body of the victim, Arnulfo Inocencio. He found that the victim
suffered a single stab wound located two ribs below the left nipple, which was fatal. He opined that the

- (+) Stabbed Wound, Anterior Pericardium, 3 cm

- (+) Stabbed Wound/Perforation of Right Ventricle, 3 cm
- (+) Blood, 50 cc Pericardia Space
CAUSE OF DEATH:
Hypovolemic Shock due to Perforation of Right Ventricle due to Stab Wound.[5]
JOVELYN I. FELIZARIO, first cousin of the victim Arnulfo Inocencio, [6] testified that in the evening of
September 1, 1998, several visitors were in her house at Tigayon, Kalibo, Aklan since it was the birthday of
her brother, Jonel. At around 11:00 that evening, Arnulfo Inocencio, appellant Jimmy dela Cruz, and
brothers Glenn, Gilbert and Greg Cipriano were having a drinking session. Arnulfo played a guitar while
appellant sang along. Afterwards, appellant requested Arnulfo to give the guitar to Gilbert. Arnulfo obliged
and rose to hand the guitar to Gilbert. When Arnulfo returned to his seat, appellant suddenly drew his knife
from his waist and stabbed Arnulfo. According to the witness, appellant then pointed at Arnulfo and said,
There, he is already dead. The witness added she was just two meters away from the victim and the
appellant when the stabbing incident happened.
On cross-examination, Jovelyn Felizario said that she knew no reason for the attack, since no
altercation between the two took place.[7]
GLEN M. CIPRIANO, another eyewitness to the stabbing, corroborated the testimony of Jovelyn
Felizario. He testified that on September 1, 1998 at around 11:00 P.M., he was with the birthday celebrant
Jonel Felizario, his two brothers Gilbert and Greg, appellant, and Arnulfo. They had a drinking spree at the
house of Antonio Felizario at Brgy. Tigayon, Kalibo, Aklan. He was seated in one corner talking to Jovelyn
Felizario. In front of them were appellant and Arnulfo who were standing beside each other. According to
the witness, appellant suddenly stabbed Arnulfo with a knife hitting the latter on the left side of his
breast. The witness said he was just two meters away. After stabbing Arnulfo, appellant said, There he is
dead. The stabbing was not preceded by any quarrel or altercation between Arnulfo and appellant,
according to the witness. In fact, they were even singing and playing the guitar before the incident. Further,
he testified that the victim was unarmed when he was assaulted by appellant. [8]
SPO4 DIOSCORO G. TOLENTINO, JR., desk officer of Kalibo PNP station, testified that past
midnight, at around 12:45 A.M. of September 2, 1998, barangay captain Gil Isberto of Barangay Tigayon,
Kalibo, Aklan, with appellant in tow, went to their station. Barangay captain Isberto informed him that
appellant surrendered to him (Isberto) after the stabbing incident. Thereafter, SPO4 Tolentino made the
appropriate entry in the police blotter and detained appellant. On the following day, SPO4 Tolentino

24
conducted an investigation and after securing the necessary papers, filed the case with the Office of the
Provincial Prosecutor.[9]

Furthermore, the Court hereby orders that the said accuseds period of preventive imprisonment, be
credited in full in the service of his sentence.

For the defense, witness Dr. Antonieta J. Templado and barangay captain Gil Isberto, and appellant
himself testified.

With COSTS against the accused.

Appellant JIMMY DELA CRUZ y QUIMPO admitted stabbing the victim but claimed that it was the
victim who attacked him and that he merely acted in self-defense. He testified that at around 6:30 P.M. of
September 1, 1998, he attended the birthday party of Jonel Felizario after having been invited by Jonel,
the victim Arnulfo Inocencio, and one Jimmy Inocencio. The party was held at the residence of Jonels
father, Antonio Felizario, in Brgy. Tigayon, Kalibo, Aklan. After eating his dinner, he joined the other visitors
who at that time were engaged in singing, playing a guitar, and drinking beer and tuba(toddy). Sometime
between 10:00 P.M. and 11:00 P.M., he asked permission to go home from Arnulfo Inocencio. He did not
ask permission from the owner of the house because the latter was already asleep and his son Jonel, the
birthday celebrant, was in the kitchen. However, Arnulfo did not allow him to leave and asked him to stay a
little longer as there was still much liquor to drink. Appellant insisted and informed Arnulfo that he had to go
for he had promised his wife that he would be home by 10:00 P.M. He was about to leave when Arnulfo
told him, If you are going home, just bring this with you. When appellant turned around, he saw Arnulfo
thrusting a knife towards him. He parried the thrust and the knife hit his left hand. When Arnulfo attempted
to stab him a second time, appellant drew his own knife from his right waist and stabbed the victim.
Thereafter, he immediately left the house and proceeded to his fathers residence. He surrendered to
barangay captain Gil Isberto of Tigayon, Kalibo, Aklan who turned over his person to the police. He said he
was not able to surrender the knife he used in stabbing Arnulfo because he threw it in the middle of the
river.[10]
Appellant denied harboring any grudge against the victim although he admitted that his younger
brother figured in a quarrel with Arnulfo sometime earlier.[11]
DR. ANTONIETA TEMPLADO, Medical Officer IV of Dr. Rafael S. Tumbokon Memorial Hospital,
testified that on September 2, 1998, she treated appellant who suffered a one-inch long superficial incised
wound at the back of his left hand. She opined, however, that the wound could have been self-inflicted and
it could have been caused by a knife.[12]
GIL ISBERTO, barangay captain of Tigayon, Kalibo, Aklan testified that at around 12:00 midnight of
September 1, 1998, appellant, appellants father, brother-in-law, and Isbertos nephew went to his
house. They informed him that appellant stabbed a certain Inocencio. Isberto noticed that appellant had a
superficial wound about two inches long on his left wrist. He turned over appellant to the police.[13]
The prosecution presented rebuttal evidence through the testimony of Jonel Felizario.
Felizario testified that appellants claim that he was in the kitchen when the latter asked permission
to leave his birthday celebration is not true. Neither was appellant stabbed by Arnulfo Inocencio with a
knife. He said that he was urinating outside of their house at the time of the stabbing incident and the
victim was unarmed since no knife has been recovered at the scene of the crime. [14]
Rejecting appellants claim of self-defense, the trial court convicted him of the crime or murder and
sentenced him, thus:
WHEREFORE, the Court finds the accused JIMMY DELA CRUZ y QUIMPO GUILTY beyond reasonable
doubt of MURDER and hereby imposes upon him the penalty of RECLUSION PERPETUA.
Further, the Court hereby orders the said accused to pay the legal heirs of the victim ARNULFO
INOCENCIO the amount of P50,000.00 as indemnity for the death of the latter.

SO ORDERED.[15]
Hence, this appeal, in which appellant contends that:
I
THE COURT A QUO ERRED IN DISREGARDING THE CLAIM OF SELF-DEFENSE RAISED BY THE
ACCUSED-APPELLANT DESPITE THE FACT THAT THE LATTER WAS ABLE TO DULY PROVE THE
SAME WITH HIS CORROBORATED TESTIMONY.
II
THE COURT A QUO LIKEWISE ERRED IN FINDING THE TESTIMONY OF THE ACCUSED-APPELLANT
NOT CREDIBLE ON THE BASIS OF SPECULATIONS, CONJECTURES AND SURMISES WHICH ARE
UNTENABLE GROUNDS.
III
THE COURT A QUO COMMITTED REVERSIBLE ERROR IN RULING THAT TREACHERY IS
ATTENDANT IN THE CASE AT BAR NOTWITHSTANDING THAT THE PROSECUTION FAILED TO
ESTABLISH THE SAME.[16]
The main issue to be resolved by this Court is whether or not the lower court erred in rejecting
appellants plea of self-defense while giving full faith and credence to the prosecutions evidence.
Appellant admits that he killed the victim, Arnulfo Inocencio. However, he avers he did it in selfdefense. He claims that it was Arnulfo who attacked him first and that he had no recourse but to stab
Arnulfo. Appellant assails the credibility of the prosecution witnesses primarily on the basis of their
relationship with the victim as well as the relative weight given by the trial court to their testimonies.
For the appellee, the Office of the Solicitor General (OSG), contends that the evidence for the
defense failed to establish the elements of self-defense as a justifying circumstance. In particular, appellant
failed to show unlawful aggression on the part of the victim. According to the OSG, factual findings of the
trial court and its evaluation of the testimonies of the witnesses must be respected and given full weight on
appeal.[17] Further, the OSG asserts that treachery attended the killing of Arnulfo Inocencio. The attack was
sudden and unexpected, affording the helpless and unarmed victim no chance to resist or to escape.
After a careful review of the record, we find no cogent reason to overturn the assailed decision of
the trial court. By invoking self-defense, the burden is placed upon appellant to prove clearly and
convincingly the elements thereof: unlawful aggression on the part of the victim, reasonable necessity of
the means employed to prevent or repel the aggression, and lack of sufficient provocation on his part.
[18]
Although all the three elements must concur, self-defense must rest firstly on proof of unlawful
aggression on the part of the victim. [19] If no unlawful aggression has been proved, no self-defense may be
successfully pleaded, whether complete or incomplete.[20] In this case, appellants testimony miserably
failed to prove the existence of unlawful aggression. He claims that it was the victim who, without

25
provocation on his part, suddenly attacked him. To defend himself, he was constrained to pull out the knife
from his waist and stab the victim on the chest.
However, the testimonies of prosecution witnesses Jovelyn Felizario and Glen Cipriano controverted
appellants version of the incident. They both testified that the stabbing of the victim by appellant was
sudden and unprovoked. Their positive declarations certainly outweigh the self-serving allegation of
appellant. Likewise, we note the trial courts observation of the appellant on the witness stand, thus:
The accused seemed unconfident (sic) when he related before the Court his version of the stabbing
incident. He seemed anxious on the witness stand and he appeared to be hiding something as he could
not deliver his statements smoothly and naturally. Certainly, these circumstances in his personal behavior
as keenly observed on the witness stand, ruined his credibility. [21]
With respect to the matter of credibility of witnesses, the well-settled rule is that in the absence of a
clear showing that some fact or circumstance of weight or substance had been overlooked, misunderstood
or misapplied,[22] the trial judges assessment of the witnesses and their testimonies would not be disturbed
on appeal. For the determination of credibility is the domain of the trial court, and the matter of assigning
values to the testimonies of witnesses is best performed by it.[23]
Also, appellant attempted to impugn the credibility of the prosecution witnesses on account of their
relationship with the victim. However, the mere fact that Jovelyn and Jonel Felizario are relatives of the
victim and that Glen is the victims friend does not prove bias or partiality on their part sufficient to
undermine the veracity of their testimonies. It was not shown that they had any ill motive that drove them to
make false accusations against appellant. Relationship by itself does not give rise to a presumption of bias
or ulterior motive, nor does it ipso facto impair the credibility of a witness. Besides, the natural interest of
witnesses, who are relatives of the victim, in securing the conviction of the guilty would deter them from
implicating persons other than the true culprits; otherwise, the guilty would go unpunished. [24] Further, Glen
is a good friend of both the appellant and the victim. There is no showing of any reason for him to testify
falsely in favor of one and against the other.
Appellant assails as purely speculative or conjectural the trial courts findings that his testimony is of
doubtful veracity and that the wound in his hand is nothing but a self-inflicted injury. He contends that these
findings disclose partiality against him on the part of the trial judge. Unfortunately, appellants contention
are not borne by the records of the case. Moreover, a judge enjoys the presumption of regularity in the
performance of his functions. The findings by the trial judge are not manifestation of bias or partiality, but
they are the result of observations by the judge that he properly took into account in the rendition of
judgment.[25]
In our view, the one-inch long wound in appellants left hand was too superficial to support his claim
that it was inflicted while he was parrying the thrust of the victim. The mere fact that he was wounded does
not prove indubitably his claim that he acted in self-defense. Nor that the victim and not he was the
aggressor. Note that appellant did not present a knife during the trial to bolster his case. The witnesses for
the prosecution denied that the victim was armed with a knife and, indeed, none was recovered from the
scene of the crime.
Based on the established facts, the Court agrees with the trial court that the killing of Arnulfo
Inocencio was attended by the qualifying circumstance of treachery. There is treachery when one employs
means, methods or forms in the execution of a crime without risk to oneself arising from the defense which
the offended party might make.[26] The victim was then unarmed and oblivious to the possibility of a deadly
attack as he was even having fun with his friends and appellant. There was no altercation or confrontation
that preceded the attack. The suddenness and unexpectedness of the attack even failed to forewarn or
arouse any alarm from the victims drinking companions. They did not suspect that anything untoward

would happen. Indeed, the essence of treachery is the swift and unexpected attack on an unarmed victim
that insures its execution without risk to the assailant arising from the defense of his victim. [27] Moreover,
although the victim and his assailant were face to face at the time the stabbing was made, where it
appears that the attack was not preceded by a dispute and the offended party was unable to prepare for
his defense, treachery should be taken into account.[28]
Finally, to appellants credit, the trial court considered the mitigating circumstance of his voluntary
surrender to the barangay captain. Appellant spontaneously and unconditionally placed himself in the
hands of the authorities, and saved them the time and effort attendant to a search. [29] The testimony of
barangay captain Isberto and the police officer on this point were not contradicted by the prosecution.Thus,
we find that the trial court correctly imposed the minimum of the penalty prescribed by law for the crime of
murder which is reclusion perpetua. We also find proper the award of P50,000 as civil indemnity but
pursuant to current jurisprudence, another sum of P50,000 as moral damages should also be awarded to
the heirs of the victim, without need of further proof other than the fact of the victims death. [30]
WHEREFORE, the decision of the Regional Trial Court of Kalibo, Aklan, Branch 2, in Criminal Case
No. 5270, is hereby AFFIRMED with MODIFICATION. Appellant JIMMY DELA CRUZ y QUIMPO is found
guilty beyond reasonable doubt of the crime of murder and sentenced to suffer the penalty of reclusion
perpetua, as well as to pay the heirs of the victim P50,000 as civil indemnity, andP50,000 as moral
damages, together with the costs.
SO ORDERED.

26
ROMERO, J.:
Parties herein would have this Court duplicate the feat of King Solomon who was hailed in Biblical
times for his sagacious, if, at times unorthodox, manner of resolving conflicts, the most celebrated case
being that when his authority was invoked to determine the identity of the real mother as between two
women claiming the same infant. Since there could only be one mother, the daunting task that confronted
the king/judge was to choose the true one.
In the instant case, we are faced with the challenge of deciding, as between father and mother, who
should have rightful custody of a child who bears in his person both their genes.
While there is a provision of law squarely in point, the two courts whose authority have been invoked
to render a decision have arrived at diametrically opposite conclusions.
It has fallen upon us now to likewise act as judge between the trial court, on the one hand, and the
appellate, on the other.
On the issue of custody over the minor Ray Perez II, respondent Court of Appeals ruled in favor of
the boys father Ray C. Perez, reversing the trial courts decision to grant custody to Nerissa Z. Perez, the
childs mother.
Ray Perez, private respondent, is a doctor of medicine practicing in Cebu while Nerissa, his wife
who is petitioner herein, is a registered nurse. They were married in Cebu onDecember 6, 1986. After six
miscarriages, two operations and a high-risk pregnancy, petitioner finally gave birth to Ray Perez II in New
York on July 20, 1992.
Petitioner who began working in the United States in October 1988, used part of her earnings to
build a modest house in Mandaue City, Cebu. She also sought medical attention for her successive
miscarriages in New York. She became a resident alien in February 1992.
Private respondent stayed with her in the U.S. twice and took care of her when she became
pregnant. Unlike his wife, however, he had only a tourist visa and was not employed.
On January 17, 1993, the couple and their baby arrived in Cebu. After a few weeks, only Nerissa
returned to the U.S. She alleged that they came home only for a five-week vacation and that they all had
round-trip tickets. However, her husband stayed behind to take care of his sick mother and promised to
follow her with the baby. According to Ray, they had agreed to reside permanently in the Philippines but
once Nerissa was in New York, she changed her mind and continued working. She was supposed to come
back immediately after winding up her affairs there.
SECOND DIVISION

[G.R. No. 118870. March 29, 1996]

NERISSA Z. PEREZ, petitioner, vs. THE COURT OF APPEALS (Ninth Division) and RAY C.
PEREZ, respondents.
DECISION

When Nerissa came home a few days before Ray IIs first birthday, the couple was no longer on
good terms. That their love for each other was fading became apparent from their serious
quarrels. Petitioner did not want to live near her in-laws and rely solely on her husbands meager income of
P5,000.00.1 She longed to be with her only child but he was being kept away from her by her
husband. Thus, she did not want to leave RJ (Ray Junior) with her husband and in-laws. She wished for
her son to grow up with his mother.
On the other hand, Ray wanted to stay here, where he could raise his son even as he practiced his
profession. He maintained that it would not be difficult to live here since they have their own home and a
car. They could live comfortably on his P 15,000.00 monthly income 2 as they were not burdened with
having to pay any debts.
Petitioner was forced to move to her parents home on Guizo Street in Mandaue. Despite mediation
by the priest who solemnized their marriage, the couple failed to reconcile.

27
On July 26, 1993, Nerissa Z. Perez filed a petition for habeas corpus 3 asking respondent Ray C.
Perez to surrender the custody of their son, Ray Z. Perez II, to her.
On August 27, 1993, the court a quo issued an Order awarding custody of the one-year old child to
his mother, Nerissa Perez, citing the second paragraph of Article 213 of the Family Code which provides
that no child under seven years of age shall be separated from the mother, unless the court finds
compelling reasons to order otherwise. The dispositive portion of the Order reads:
WHEREFORE, foregoing premises considered, Order is hereby issued ordering the respondent to turn
over the custody of their child Ray Cortes Perez II, his passport and roundtrip ticket to herein petitioner
with a warning that if he will escape together with the child for the purpose of hiding the minor child instead
of complying with this Order, that warrant for his arrest will be issued.
SO ORDERED.4
Upon appeal by Ray Perez, the Court of Appeals, on September 27, 1994, reversed the trial courts
order and awarded custody of the boy to his father.5
Petitioners motion for reconsideration having been denied, 6 she filed the instant petition for review
where the sole issue is the custody of Ray Perez II, now three years old.
Respondent court differed in opinion from the trial court and ruled that there were enough reasons to
deny Nerissa Perez custody over Ray II even if the child is under seven years old.It held that granting
custody to the boys father would be for the childs best interest and welfare.7
Before us is the unedifying situation of a husband and wife in marital discord, struggling for custody
of their only child. It is sad that petitioner and private respondent have not found it in their hearts to
understand each other and live together once again as a family. Separated in fact, they now seek the
Courts assistance in the matter of custody or parental authority over the child.
The wisdom and necessity for the exercise of joint parental authority need not be belabored. The
father and the mother complement each other in giving nurture and providing that holistic care which takes
into account the physical, emotional, psychological, mental, social and spiritual needs of the child. By
precept and example, they mold his character during his crucial formative years.
However, the Courts intervention is sought in order that a decision may be made as to which parent
shall be given custody over the young boy. The Courts duty is to determine whether Ray Perez II will be
better off with petitioner or with private respondent. We are not called upon to declare which party
committed the greater fault in their domestic quarrel.
When the parents of the child are separated, Article 213 of the Family Code is the applicable law. It
provides:
ART. 213. In case of separation of the parents, parental authority shall be exercised by the parent
designated by the Court. The Court shall take into account all relevant considerations, especially the
choice of the child over seven years of age, unless the parent chosen is unfit.
No child under seven years of age shall be separated from the mother, unless the court finds compelling
reasons to order otherwise. (Italics supplied)
Since the Code does not qualify the word separation to mean legal separation decreed by a court,
couples who are separated in fact, such as petitioner and private respondent, are covered within its terms. 8

The Revised Rules of Court also contains a similar provision. Rule 99, Section 6 (Adoption and
Custody of Minors) provides:
SEC. 6. Proceedings as to child whose parents are separated. Appeal. - When husband and wife are
divorced or living separately and apart from each other, and the questions as to the care, custody, and
control of a child or children of their marriage is brought before a Court of First Instance by petition or as an
incident to any other proceeding, the court, upon hearing the testimony as may be pertinent, shall award
the care, custody, and control of each such child as will be for its best interest, permitting the child to
choose which parent it prefers to live with if it be over ten years of age, unless the parent chosen be unfit
to take charge of the child by reason of moral depravity, habitual drunkenness, incapacity, or poverty x x
x. No child under seven years of age shall be separated from its mother, unless the court finds there are
compelling reasons therefor. (Italics supplied)
The provisions of law quoted above clearly mandate that a child under seven years of age shall not
be separated from his mother unless the court finds compelling reasons to order otherwise. The use of the
word shall in Article 213 of the Family Code and Rule 99, Section 6 of the Revised Rules of Court connotes
a mandatory character. In the case of Lacson v. San Jose-Lacson,9 the Court declared:
The use of the word shall in Article 36310 of the Civil Code, coupled with the observations made by the
Code Commission in respect to the said legal provision, underscores its mandatory character. It prohibits
in no uncertain terms the separation of a mother and her child below seven years, unless such separation
is grounded upon compelling reasons as determined by a court.11
The rationale for awarding the custody of children younger than seven years of age to their mother
was explained by the Code Commission:
The general rule is recommended in order to avoid many a tragedy where a mother has seen her baby
torn away from her. No man can sound the deep sorrows of a mother who is deprived of her child of tender
age. The exception allowed by the rule has to be for compelling reasons for the good of the child; those
cases must indeed be rare, if the mothers heart is not to be unduly hurt. If she has erred, as in cases of
adultery, the penalty of imprisonment and the divorce decree (relative divorce) will ordinarily be sufficient
punishment for her. Moreover, moral dereliction will not have any effect upon the baby who is as yet unable
to understand her situation. (Report of the Code Commission, p. 12)12
The Family Code, in reverting to the provision of the Civil Code that a child below seven years old
should not be separated from the mother (Article 363), has expressly repealed the earlier Article 17,
paragraph three of the Child and Youth Welfare Code (Presidential Decree No. 603) which reduced the
childs age to five years.13
The general rule that a child under seven years of age shall not be separated from his mother finds
its raison detre in the basic need of a child for his mothers loving care. 14 Only the most compelling of
reasons shall justify the courts awarding the custody of such a child to someone other than his mother,
such as her unfitness to exercise sole parental authority. In the past the following grounds have been
considered ample justification to deprive a mother of custody and parental authority: neglect,
abandonment,15 unemployment and immorality,16habitual drunkenness,17 drug addiction, maltreatment of
the child, insanity and being sick with a communicable disease.18
It has long been settled that in custody cases,19 the foremost consideration is always the Welfare
and best interest of the child. In fact, no less than an international instrument, the Convention on the Rights
of the Child provides: In all actions concerning children, whether undertaken by public or private social

28
welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the
child shall be a primary consideration.20
Courts invariably look into all relevant factors presented by the contending parents, such as their
material resources, social and moral situations.21
In the case at bench, financial capacity is not a determinative factor inasmuch as both parties have
demonstrated that they have ample means.

SET ASIDE. The Order of the trial court dated August 27, 1993 is hereby REINSTATED. Custody over the
minor Ray Z. Perez II is awarded to his mother, herein petitioner Nerissa Z. Perez. This decision is
immediately executory.
SO ORDERED.
Regalado (Chairman), Puno, and Mendoza, JJ., concur.
Torres, Jr., J., on leave.

Respondent court stated that petitioner has no permanent place of work in the U.S.A. and has taken
this point against her. The records, however, show that she is employed in a New York hospital22 and was,
at the time the petition was filed, still abroad. 23 She testified that she intends to apply for a job elsewhere,
presumably to improve her work environment and augment her income, as well as for convenience. 24 The
Court takes judicial notice of the fact that a registered nurse, such as petitioner, is still very much in
demand in the United States. Unlike private respondent, a doctor who by his own admission could not find
employment there, petitioner immediately got a job in New York. Considering her skill and experience,
petitioner should find no difficulty in obtaining work elsewhere, should she desire to do so.
The decision under review casts doubt on petitioners capability to take care of the child, particularly
since she works on twelve-hour shifts thrice weekly, at times, even at night. There being no one to help her
look after the child, it is alleged that she cannot properly attend to him. This conclusion is as unwarranted
as it is unreasonable. First, her present work schedule is not so unmanageable as to deprive her of quality
time for Ray II. Quite a number of working mothers who are away from home for longer periods of time are
still able to raise a family well, applying time management principles judiciously. Second, many a mother,
finding herself in such a position, has invited her own mother or relative to join her abroad, providing the
latter with plane tickets and liberal allowances, to look after the child until he is able to take care of
himself. Others go on leave from work until such time as the child can be entrusted to day-care
centers. Delegating child care temporarily to qualified persons who run day-care centers does not detract
from being a good mother, as long as the latter exercises supervision, for even in our culture, children are
often brought up by housemaids or yayas under the eagle eyes of the mother. Third, private respondents
work schedule was not presented in evidence at the trial.Although he is a general practitioner, the records
merely show that he maintains a clinic, works for several companies on retainer basis and teaches parttime.25 Hence, respondent courts conclusion that his work schedule is flexible (and h)e can always find
time for his son26 is not well-founded. Fourth, the fact that private respondent lives near his parents and
sister is not crucial in this case. Fifth, petitioners work schedule cited in the respondent courts decision is
not necessarily permanent. Hospitals work in shifts and, given a mothers instinctive desire to lavish upon
her child the utmost care, petitioner may be expected to arrange her schedule in such a way as to allocate
time for him. Finally, it does not follow that petitioner values her career more than her family simply
because she wants to work in the United States. There are any number of reasons for a persons seeking a
job outside the country, e.g. to augment her income for the familys benefit and welfare, and for
psychological fulfillment, to name a few. In the instant case, it has been shown that petitioner earned
enough from her job to be able to construct a house for the family in Mandaue City. The record describes
sketchily the relations between Ray and Nerissa Perez. The transcripts of the three hearings are
inadequate to show that petitioner did not exert earnest efforts and make sacrifices to save her marriage.
It is not difficult to imagine how heart-rending it is for a mother whose attempts at having a baby
were frustrated several times over a period of six years to finally bear one, only for the infant to be
snatched from her before he has even reached his first year. The mothers role in the life of her child, such
as Ray II, is well-nigh irreplaceable. In prose and poetry, the depth of a mothers love has been
immortalized times without number, finding as it does, its justification, not in fantasy but in reality.

Republic of the Philippines

SUPREME COURT
Manila

WHEREFORE, the petition for review is GRANTED. The decision of the Court of Appeals
dated September 27, 1994 as well as its Resolution dated January 24, 1995 are hereby REVERSED and

EN BANC

29
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 Solicitor-General, 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.

30
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.
Avancea, C.J., Abad Santos, Hull, and Vickers, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
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 resolution2 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. 91-101642 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:

31
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.

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."

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

(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.

32
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.

xxx xxx 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 .

xxx xxx xxx

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.

1) One (1) small white plastic bag marked UNIMART with the following:

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:

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:

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.

"SPECIMEN SUBMITTED:

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

33
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 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.

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.

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 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 tshirt, 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

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 decision10 convicting petitioner of attempted rape and
accordingly sentencing him, thus:

34
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.

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.

SO ORDERED.

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

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

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.

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

Petitioner is now with this Court, on the contention that the CA erred a) There is more than one circumstance;
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.

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,

35
MALOU had made out the feel of her intruders apparel to be something made of cotton material on top
and shorts that felt satin-smooth on the bottom.

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

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.

Harmonizing the above definition to the facts of this case, it would be too strained to construe petitioner's
act of pressing a chemical-soaked 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:

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

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

36
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.

EN BANC

[G. R. No. 149028-30. April 2, 2003]

37
THE PEOPLE OF THE PHILIPPINES, appellee, vs. ARMANDO CABALLERO, RICARDO
CABALLERO, MARCIANO CABALLERO, JR., and ROBITO CABALLERO, accused.
ARMANDO CABALLERO, RICARDO CABALLERO, and MARCIANO CABALLERO, JR., appellants.
DECISION
CALLEJO, SR., J.:
Before the Court on automatic review is the Decision[1] of the Regional Trial Court of San Carlos City,
Negros Occidental, Branch 57, convicting appellants Armando Caballero, Ricardo Caballero and Marciano
Caballero, Jr. of murder in Criminal Cases Nos. RTC-1217 and RTC-1218 and meting on each of them the
supreme penalty of death and ordering them to pay damages; and of frustrated murder in Criminal Case
No. RTC-1219 and imposing on them the penalty of reclusion perpetua.

The Antecedents

For his part, Leonilo rushed from his house to where the commotion was. He was, however, met by
Robito who stabbed him on the chest. Wounded, Leonilo retreated and pleaded to his uncle Lucio Broce
for help: Tio, help me because I am hit. The commotion stopped only upon the arrival of Teresito
Mondragon who was able to pacify the Caballero brothers. They all returned to the compound.
In the meantime, Lucio Broce, the uncle of Leonilo brought the injured Eugene, Leonilo and Arnold
to the Planters Hospital for medical treatment. Eugene and Leonilo eventually died from the stab wounds
they sustained.
Dr. Filped A. Maisog performed an autopsy on the cadaver of Eugene. He signed a postmortem
report containing the following findings:
POST-MORTEM EXAMINATION
Name: Eugenio Tayactac, 22 years old, male, single
Address: New Sumakwel, San Carlos City, Neg. Occ.
Place of Incident: New Sumakwel, San Carlos City, Neg. Occ.

Teresito (Dodong) Mondragon and his family lived in a compound surrounded by a barbed-wire
fence at New Sumakwel, Broce Street, San Carlos City, Negros Occidental. Living in the same compound
were Ricardo Caballero and his family; and Myrna Bawin, the sister of Eugene Tayactac, and her family.
Beside the compound was the house of Leonilo Broce, a nephew of Wilma Broce.
In the afternoon of August 3, 1994, Armando (Baby), Robito (Bebot) and Marciano, Jr. (Jun), all
surnamed Caballero, were having a drinking spree in the house of their brother Ricardo in the Mondragon
Compound. At about 7:00 p.m. of said date, Eugene Tayactac and Arnold Barcuma arrived in the sari-sari
store of Wilma Broce which was across the Mondragon Compound. Eugene had dinner in the store while
Arnold proceeded to the house of Susana Broce, Eugenes girlfriend, for a chat. Susanas house was about
15 meters away from the store of Wilma. Momentarily, Armando arrived in the store and asked Eugene in
an angry tone: Gene mopalit ka? (Gene, will you buy?). Eugene replied: What is this all about? We dont
have any quarrel between us. Armando left the store but stood by the gate of the barbed-wired fence of the
Mondragon Compound. His brothers Ricardo, Robito and Marciano, Jr. joined him.Ricardo and Robito
were armed with knives. When Wilma told Eugene that she was closing the store already, he stood up and
left the store on his way to Susanas house. At that time, Myrna Bawin, who was standing by the window of
their house saw her brother Eugene going out of the store and proceeding to the house of Susana. She
called out to him and advised him to go home. Myrna then left the window to pacify her crying baby.
As Eugene walked by the gate of the Mondragon Compound, Armando suddenly grabbed Eugene
towards the compound. Eugene resisted. Spontaneously, Ricardo, Marciano, Jr. and Robito joined
Armando and assaulted Eugene. Armando took the wooden pole supporting the clothesline and hit
Eugene with it. The latter tried to parry the blows of the Caballero brothers, to no avail. In the process,
Eugene was stabbed three times. As Eugene was being assaulted, Myrna returned to the window of her
house and saw the Caballero brothers assaulting Eugene. She shouted for help for her hapless
brother. Wilma, who witnessed the whole incident, was shocked to immobility at the sudden turn of events.
From the nearby house of Susana, Arnold saw the commotion and rushed to the scene to pacify the
protagonists. Arnold told the Caballero brothers: Bay, what is the trouble between you and
Eugene? However, Ricardo accosted Arnold and stabbed the latter on the left side of his body. Forthwith,
Robito, Marciano, Jr. and Armando ganged up on Arnold. Two of them stabbed Arnold on his
forearm. Arnold fled for his life and hid under the house of a neighbor.

Place of Examination: San Carlos City Hospital

Date & Time of Incident: August 3, 1994 @ 8:30 P.M.
Date & Time Examined: August 3, 1994 @ 10:40 P.M.
Post-Mortem Findings:
= Stab wound (L) anterior chest 2 cm. 5th ICS MCL directed postero laterally, lacerating (L)
auricle of the heart, and the (L) pulmonary artery and the left middle lobe of the lungs;
= Stab wound (R) anterior chest 2 cm. long 5th ICS parasternal line directed posteriorly;
= Stab wound (R) posterior chest level 7th ICS 2 cm. long directed anteriorly.
CAUSE OF DEATH: Severe Hemorrhage secondary to Multiple Stab wounds with Massive
Hemothorax (L) and Hemopneumothorax (R).[2]
He testified that the stab wounds could have been caused by a sharp-edged single-bladed or
double-bladed instrument, or by three instruments.[3]
Dr. Jose Carlos L. Villarante performed an autopsy on the cadaver of Leonilo. He signed a
postmortem report containing the following findings:
POST-MORTEM EXAMINATION
Name: Leonilo Broce, 22 years old, male, married

38
Address: New Sumakwel, San Carlos City, Neg. Occ.

That an aggravating circumstance of abuse of superior strength is attendant in the commission of the
offense.

Place of Incident: New Sumakwel, San Carlos City, Neg. Occ.

CONTRARY TO LAW.[7]
Place of Examination: San Carlos City Hospital
Date & Time of Incident: Aug. 3, 1994 @ 8:30 P.M.
Date & Time Examined: Aug. 3, 1994 @ 8:45 P.M.
Post-mortem findings:
= Stab wound, (R) post chest, about the level of the 6th and 7th RICS, post. axillary line.
CAUSE OF DEATH: Hypovolemic shock secondary to multiple organ injury.[4]
Dr. Edgardo B. Quisumbing attended to and operated on Arnold Barcuma. He signed a medical
certificate stating that Arnold sustained the following injuries:
= Lacerated wound 2 cm. (R) forearm middle 3

They were also charged with the same crime for the death of Eugene Tayactac in an Information
docketed as Criminal Case No. RTC-1218, which reads:
That on or about 8:00 oclock, P.M., August 3, 1994 at New Sumakwel, San Carlos City, Negros Occidental,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring
together and helping one another, armed with pieces of wood and hunting knives, and with intent to kill,
with treachery and evident premeditation, did, then and there, wilfully, unlawfully and feloniously, with the
use of said weapons, attack, assault and use personal violence upon the person of one EUGENE
TAYACTAC, by striking the latter with use of pieces of wood and stabbing him thereby inflicting upon said
Eugene Tayactac physical injuries which resulted to the death of the latter.
That an aggravating circumstances of abuse of superior strength is attendant in the commission of the
offense.
CONTRARY TO LAW.[8]

rd

= Incised wound 2 inches (L) forearm middle 3rd

= Stabbed wound, 2 inches in length (L) chest, anterior axillary line at the level of the
7th intercostal space, penetrating thoracic cavity and abdominal cavity.
... [5]
On the witness stand, Dr. Quisumbing testified that the wounds sustained by Arnold could have
been caused by three different sharp-pointed instruments.[6] He further testified that Arnold would have died
because of the stab wound on his chest, were it not for the timely medical intervention.
On August 5, 1994, Armando, Ricardo, Marciano, Jr. and Robito, were charged with Murder for the
death of Leonilo Broce. The Information, docketed as Criminal Case No. RTC 1217 reads:
That on or about 8:00 oclock, P.M., August 3, 1994 at New Sumakwel, San Carlos City, Negros Occidental,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring
together and helping one another, armed with pieces of wood and hunting knives, and with intent to kill,
with treachery and evident premeditation, did, then and there, wilfully, unlawfully and feloniously, with the
use of said weapons, attack, assault and use personal violence upon the person of one LEONILO BROCE,
by striking the latter with the use of pieces of wood and stabbing him, thereby inflicting upon said Leonilo
Broce physical injury described as follows:

Another Information was filed against the Caballero brothers for frustrated murder for the injuries of
Arnold Barcuma. Docketed as Criminal Case No. RTC-1219, it reads:
That on or about 8:00 oclock, P.M., August 3, 1994 at New Sumakwel, San Carlos City, Negros Occidental,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring
together and helping one another, armed with pieces of wood and hunting knives, with intent to kill, with
treachery and evident premeditation, did, then and there, wilfully, unlawfully and feloniously attack, assault
and use personal violence upon the person of one ARNOLD BARCUMA, by striking him with the use of
pieces of wood and stabbing him, thereby inflicting upon the latter physical injuries which would have
resulted to the death of said Arnold Barcuma, thus performing 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 rendered to said Arnold
Barcuma.
That an aggravating circumstance of abuse of superior strength is attendant in the commission of the
offense.[9]
Ricardo, Armando and Marciano, Jr., assisted by counsel, were arraigned on September 15,
1994. They pleaded not guilty to all the charges. Robito Caballero remained at-large.

= Stabbed wound (R) chest penetrating thoracic cavity.

Ricardo, Armando and Marciano, Jr. invoked the defenses of denial and alibi. They adduced
evidence that Ricardo was employed as electrician in the Office of the City Engineer of San Carlos
City. Armando was a motor cab driver. Robito resided in H.C. Rigor Street, San Carlos City while Marciano,
Jr. was a resident of Don Juan Subdivision, San Carlos City and was employed with the Victorias Milling
Corporation.

and which injury caused massive hemorrhage which resulted to the death of Leonilo Broce.

On August 3, 1994, at 8:00 a.m., Robito left San Carlos City and went to Bacolod City. Armando
went to the house of his brother Ricardo to help in the construction of the latters house and to take care of

39
Ricardos fighting cocks while he was in his office. Ricardo arrived home at 8:00 p.m. and had dinner with
his family and Armando. Momentarily, their sister Mila and their younger brother Marciano, Jr. arrived in the
house of Ricardo. Marciano, Jr. allegedly was mauled by a group of men and sustained an abrasion, a
contusion and swelling of the left side of his face. Ricardo and Armando brought their brother Marciano, Jr.
to the hospital for treatment. On August 4, 1994, Marciano, Jr. was treated for:

Eugene, and only the accused Robito who stabbed Leonilo, however, it concluded that all of them were
equally liable for the deaths of Leonilo and Eugene and for the injuries of Arnold.

= Linear abrasion (L) scapula region;

THE TRIAL COURT ERRED IN NOT ACQUITTING ACCUSED-APPELLANTS IN CRIMINAL CASES

NOS. 1217-1219 DESPITE THE FACT THAT THEIR GUILT WAS NOT PROVEN BEYOND REASONABLE
DOUBT.

= Contusion (R) lower lip lateral side;

In their Brief, the accused, now appellants assail the decision of the trial court contending that:
I

= Swelling left face.

No. of days of healing: 5-7 days barring complication.[10]
Ricardo, Armando and Marciano, Jr. denied killing Eugene and assaulting Arnold. They also denied
having any altercation with the victims. They also denied stabbing Leonilo. They had no idea why Wilma,
Arnold and Myrna would implicate them for the deaths of Leonilo and Eugene and for the injuries of Arnold.
After due proceedings, the trial court rendered judgment on May 7, 2001 finding all the three
accused, now appellants guilty beyond reasonable doubt as principals of the crimes charged, the decretal
portion of which reads:
WHEREFORE, accused Armando Caballero, alias Baby, Ricardo Caballero, alias Ricky and Marciano
Caballero, Jr., alias Jun, having been found GUILTY beyond reasonable doubt of the offenses charged
them as principals, are hereby sentenced to suffer:
1. In Criminal Case No. RTC-1217 for the murder of Leonilo Broce, there being no mitigating circumstance
present, with the attendant aggravating circumstances of treachery and abuse of superior strength, the
maximum penalty of death and to pay the heirs of Leonilo Broce the sum of P75,000.00 as indemnity;
2. In Criminal Case No. RTC-1218, for the murder of Eugene or Eugenio Tayactac, there being no
mitigating circumstance present, with the attendant aggravating circumstances of treachery and abuse of
superior strength, the maximum penalty of death; and to pay the heirs of Eugene Tayactac the sum of
P75,000.00 as indemnity; and
3. In Criminal Case No. RTC-1219, for Frustrated Murder, for having seriously inflicted injuries upon the
person of Arnold Barcuma which nearly resulted to his death, there being no mitigating circumstance
present, an imprisonment of twelve (12) years, as minimum, to seventeen (17) years, four (4) months and
one (1) day, with no award as to damages, no evidence having been introduced to establish, the same;
and
4. To pay the costs in all three (3) cases.
SO ORDERED.[11]
In convicting the accused, the trial court found that all of them conspired to kill Eugene and Leonilo
and cause injuries to Arnold. While the trial court stated that it was only appellant Armando who stabbed

II
THE TRIAL COURT GRAVELY ERRED IN APPRECIATING THE AGGRAVATING CIRCUMSTANCES OF
TREACHERY AND ABUSE OF SUPERIOR STRENGTH ON THE ASSUMPTION THAT INDEED
ACCUSED-APPELLANTS KILLED THE VICTIMS.
III
THE TRIAL COURT GRAVELY ERRED IN IMPOSING THE DEATH PENALTY UPON ACCUSEDAPPELLANTS ON THE ASSUMPTION THAT INDEED THEY KILLED THE VICTIMS. [12]
The Court will delve into and resolve the first two assignments of errors.
The appellants aver that the prosecution failed to prove beyond reasonable doubt their respective
guilt for the deaths of Eugene and Leonilo and for the injuries sustained by Arnold.They assert that the trial
court committed reversible error in rejecting their defenses of denial and alibi. They claim that at the time of
the incident they were in the San Carlos Hospital for the treatment of the injuries of appellant Marciano, Jr.
The appellants are partly correct.
The trial court correctly found that all the appellants conspired to kill Eugene and assault Arnold;
hence, they are criminally liable for the death of Eugene and for the injuries sustained by Arnold. Article 8
of the Revised Penal Code provides that there is conspiracy when two or more persons agree to commit a
felony and decide to commit it. Conspiracy is always predominantly mental in composition because it
consists primarily of a meeting of minds and intent.[13] Conspiracy must be proved with the same quantum
of evidence as the crime itself, that is, by proof beyond reasonable doubt.[14] However, direct proof is not
required. Conspiracy may be proved by circumstantial evidence. Conspiracy may be proved through the
collective acts of the accused, before, during and after the commission of a felony, all the accused aiming
at the same object, one performing one part and another performing another for the attainment of the
same objective, their acts though apparently independent were in fact concerted and cooperative,
indicating closeness of personal association, concerted action and concurrence of sentiments. [15] The overt
act or acts of the accused may consist of active participation in the actual commission of the crime itself or
may consist of moral assistance to his co-conspirators by moving them to execute or implement the
criminal plan.[16] Direct proof of a person in agreement to commit a crime is not necessary. It is enough that
at the time of the commission of a crime, all the malefactors had the same purpose and were united in their
execution.[17] Once established, all the conspirators are criminally liable as co-principals regardless of the
degree of participation of each of them for in contemplation of the law, the act of one is the act of all. [18]
Criminal conspiracy must always be founded on facts, not on mere inferences, conjectures and
presumptions.[19] Mere knowledge, acquiescence to or approval of the act without cooperation or

40
agreement to cooperate, is not enough to constitute one party to a conspiracy absent the intentional
participation in the act with a view to the furtherance of the common objective and purpose. [20] Moreover,
one is not criminally liable for his act done outside the contemplation of the conspirators. Co-conspirators
are criminally liable only for acts done pursuant to the conspiring on how and what are the necessary and
logic consequence of the intended crime.[21]
In this case, when appellant Armando asked Eugene at the store of Wilma whether the latter was
going to buy something from the store, Eugene was peeved and remonstrated that he and Armando had
no quarrel between them. Appellant Armando was likewise irked at the reaction of Eugene because from
the store, appellant Armando stationed himself by the gate of the Mondragon Compound near the sari-sari
store of Wilma. Appellants Ricardo, Marciano, Jr. and Robito joined their brother, appellant Armando at the
gate. Appellant Ricardo and accused Robito were armed with knives. When Eugene passed by the gate to
the compound, appellant Armando pulled Eugene to the gate but when the latter resisted, all the appellants
ganged up on Eugene. Appellant Armando took the wooden support of the clothesline and hit Eugene with
it. Eugene was stabbed three times on his chest even as he tried to parry the thrusts. When Arnold rushed
to the situs criminis to pacify the appellants and accused Robito, appellant Ricardo stabbed him on the left
side of his body. The other appellants and accused Robito joined appellant Ricardo and ganged up on
Arnold. They stabbed Arnold anew twice on his forearm. Teresito Mondragon, the father-in-law of appellant
Ricardo intervened and forthwith, all the appellants, including accused Robito returned to the Mondragon
Compound. Patently, all the appellants by their simultaneous collective acts before and after the
commission of the crimes were united in one common objective, to kill Eugene, and cause injuries to
Arnold for trying to intervene and prevent bloodshed. Hence, all the appellants are criminally liable for the
death of Eugene and for the injuries of Arnold. It does not matter who among the appellants stabbed
Eugene or inflicted injuries on Arnold. The act of one is the act of the others.
However, for the death of Leonilo, the Court believes that the appellants are not criminally
liable. The prosecution failed to adduce evidence that the appellants and the accused Robito conspired to
kill Leonilo. The appellants did not actually see Leonilo rushing out from his house to the situs criminis.
They had no foreknowledge that the accused Robito would stab Leonilo.There was no evidence presented
by the prosecution to prove that all the appellants assisted the accused Robito in killing Leonilo. It must be
recalled that Leonilo rushed out of his house when he saw the commotion, with the intention of aiding the
victim or pacifying the protagonists. He was, however, stopped by accused Robito who suddenly stabbed
him on the chest.Leonilo retreated and asked for help. Wilma Broce testified that only the accused Robito
stabbed Leonilo:
Q After that, what happened next?
A Leonilo Broce came out of his house.
Q Where is the house of Leonilo Broce?
A Still located at Sumakwel.
Q In that case, the very house where Eugene Tayaktak leaned on when he was ganged up by
the four?
A Yes.
Q What happened after that?
A When he came out from the house and saw that it was Eugene Tayaktak, he proceeded to
approach them but he was not able to approach them because he was met by Robit
Bebot Caballero and stabbed by Robito Caballero.
Q Was LeoniloBroce (sic) hit when he was stabbed by Robito Caballero?

A Yes. He immediately ran back and said: Tio, help me because I am hit.
INTERPRETERS (observation)
Witness demonstrating by holding her left armpit.
Q Was Eugene Tayaktak able to escape from the attach (sic) of the Caballero brothers?
A Not (sic).
Q Now what happened to Eugene Tayaktak?
A He appeared very weak and he was staggering.
Q Do you know where Eugene Tayaktak now?
A Already dead.
Q What happened to Leonilo Broce, where is he now?
A The two of them were (sic) already dead.
Q Now, when did the trouble stop if it stopped?
A It stopped when Dodong Mondragon arrived.
Q What did the accused do after the trouble was stopped?
A They went inside the compound of his (sic) father.
Q What happened next?
A Nothing happened. Both of them were brought to the hospital.[22]
In sum, the trial court committed reversible error in convicting the appellants of murder for the death
of Leonilo. As this Court held in People v. Flora:[23]
However, we cannot find Edwin Flora similarly responsible for the death of Emerita Roma and the injury of
Flor Espinas. The evidence only shows conspiracy to kill Ireneo Gallarte and no one else. For acts done
outside the contemplation of the conspirators only the actual perpetrators are liable. In People v. De la
Cerna, 21 SCRA 569, 570 (1967), we held:
... And the rule has always been that co-conspirators are liable only for acts done pursuant to the
conspiracy. For other acts done outside the contemplation of the co-conspirators or which are not the
necessary and logical consequence of the intended crime, only the actual perpetrators are liable. Here,
only Serapio killed (sic) Casiano Cabizares. The latter was not even going to the aid of his father Rafael
but was fleeing away when shot.
To conclude, appellant Edwin Flora is guilty beyond reasonable doubt only of the murder of Ireneo
Gallarte. He has no liability for the death of Emerita Roma nor the injuries of Flor Espinas caused by his
co-accused Hermogenes Flora.

Crimes Committed by Appellants

41
In Criminal Case No. RTC-1218, the appellants are guilty as co-principals by direct participation of
murder, qualified by treachery. In order that treachery may be considered as a qualifying circumstance, the
prosecution is burdened to prove that:

passing through the subjective phase. He did all that is necessary to consummate the crime. However, the
crime is not consummated by reason of the intervention of causes independent of the will of the offender.
In homicide cases, the offender is said to have performed all the acts of execution if the wound inflicted on
the victim is mortal and could cause the death of the victim barring medical intervention or attendance. [28]

.... (1) the employment of means of execution that give the person attacked no opportunity to defend
himself or to retaliate; and (2) the means of execution was deliberately or consciously adopted.[24]

If one inflicts physical injuries on another but the latter survives, the crime committed is either
consummated physical injuries, if the offender had no intention to kill the victim or frustrated or attempted
homicide or frustrated murder or attempted murder if the offender intends to kill the victim. Intent to kill may
be proved by evidence of: (a) motive; (b) the nature or number of weapons used in the commission of the
crime; (c) the nature and number of wounds inflicted on the victim; (d) the manner the crime was
committed; and (e) words uttered by the offender at the time the injuries are inflicted by him on the victim.

Even a frontal attack is treacherous if it is sudden and the victim is unarmed. The essence of
treachery is a swift and unexpected attack on the unarmed victim. [25]
In this case, Eugene was unarmed. He had no inkling that he would be waylaid as he sauntered on
his way to his girlfriend Susanas house. On the other hand, appellant Armando was armed with a wooden
pole while appellant Ricardo and accused Robito were armed with knives. The attack on the hapless
Eugene was swift and unannounced. Undeniably, the appellants killed Eugene with treachery.
In Criminal Case No. RTC-1219, the appellants are guilty of frustrated murder under Article 248 in
relation to Article 6, first paragraph of the Revised Penal Code which reads:
A felony is consummated when all the elements necessary for its execution and accomplishment are
present; and it is frustrated when the offender performs all the acts of execution which would produce the
felony as a consequence but which, nevertheless, do not produce it by reason of causes independent of
the will of the perpetrator.
The essential elements of a frustrated felony are as follows:

In this case, appellant Armando was armed with a wooden pole. Appellant Ricardo and accused
Robito used knives. Dr. Quisumbing, who attended to and operated on Arnold, testified that the stab wound
sustained by Arnold on the left side of his body was mortal and could have caused his death were it not for
the timely and effective medical intervention:
Q And how about the size and the depth of the wounds and how big is each wound and how
deep.
A The first wound is 2 cm. and the 2nd is about 2 inches and the 3rd is 2 inches in the left,
penetrating the chest near the thorax along the lateral line.
Q So, aside from the 3rd wound there are wounds which are not really very serious?
A As I said before, the most serious is the 3rd wound.
Q So even without the other wounds the 3rd wound - - it could be the cause of the death of the
victim?

Elements:
1. The offender performs all the acts of execution;
2. All the acts performed would produce the felony as a consequence;
3. But the felony is not produced;
4. By reason of causes independent of the will of the perpetrator.[26]
In the leading case of United States v. Eduave,[27] Justice Moreland, speaking for the Court,
distinguished an attempted from frustrated felony. He said that 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 the acts which should produce the crime as a consequence, which
act it is his intention to perform.
The subjective phase in the commission of a crime is that 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 prior acts, should result in the consummated crime. Thereafter, the phase is objective.
In case of an attempted crime, the offender never passes the subjective phase in the commission of
the crime. The offender does not arrive at the point of performing all of the acts of execution which should
produce the crime. He is stopped short of that point by some cause apart from his voluntary desistance.
On the other hand, a crime is frustrated when the offender has performed all the acts of execution
which should result in the consummation of the crime. The offender has passed the subjective phase in the
commission of the crime. Subjectively, the crime is complete. Nothing interrupted the offender while

A Yes, Sir.[29]
It cannot be denied that the appellants had the intention to kill Arnold. The appellants performed all
the acts of execution but the crime was not consummated because of the timely medical intervention.
Treachery attended the stabbing of Arnold because he was unarmed and the attack on him was
swift and sudden. He had no means and there was no time for him to defend himself. In sum, the
appellants are guilty of frustrated murder.
The appellants denial of the crimes charged in Criminal Case Nos. RTC-1218 and RTC-1219 cannot
prevail over Wilmas and Arnolds positive and straightforward testimonies that the appellants killed Eugene
and stabbed Arnold. Moreover, Wilma and Arnold had no motive to falsely implicate the appellants for the
said crimes; hence, their testimony must be accorded full probative weight.[30]
Equally barren of merit is appellants defense of alibi. Alibi as a defense is inherently weak for it is
easy to fabricate and difficult to disprove. To merit approbation, the appellants were burdened to prove with
clear and convincing evidence that at the time the crimes were committed, they were in a place other than
the situs of the crimes such that it was physically impossible for them to have committed said crimes.
[31]
The appellants dismally failed in this respect. They testified that they were at the house of appellant
Ricardo, which was conveniently near the place where Eugene was killed and Arnold was
assaulted. Moreover, the records show that Marciano, Jr. was treated for his superficial injuries on August
4, 1996, a day after the incident. This belies the claim of appellants Ricardo and Armando that they were
allegedly in the hospital at the time of the incident.

42
Penalties Imposable on Appellants
The trial court imposed the death penalty on appellants in Criminal Case No. RTC-1218 on its
finding that treachery and abuse of superior strength were attendant in the killing of Eugene. The Solicitor
General does not agree with the trial court and contends that abuse of superior strength was absorbed by
treachery; hence, should not be considered as a separate aggravating circumstance in the imposition of
the penalty on the appellants. The Court agrees with the Solicitor General. Abuse of superior strength,
concurring with treachery is absorbed by treachery.[32]
The penalty for murder under Article 248 of the Revised Penal Code, as amended by Republic Act
7659, is reclusion perpetua to death. Since aside from the qualified circumstance of treachery, no other
modifying circumstance was attendant in the commission of the crime, the proper penalty for the crime
is reclusion perpetua conformably with Article 63 of the Revised Penal Code.
In Criminal Case No. RTC-1219, for frustrated murder, the Solicitor General contends that the
indeterminate penalty of from 12 years of reclusion temporal as minimum, to 17 years, 4 months and 1 day
of reclusion temporal as maximum, imposed on the appellants is not correct. The Court agrees with the
Solicitor General. The penalty for frustrated murder is one degree lower than reclusion perpetua to death,
which is reclusion temporal.[33] The latter penalty has a range of 12 years and 1 day to 20 years. The
maximum of the indeterminate penalty should be taken from reclusion temporal, the penalty for the crime
taking into account any modifying circumstances in the commission of the crime. The minimum of the
indeterminate penalty shall be taken from the full range of prision mayor which is one degree lower
than reclusion temporal. Since there is no modifying circumstance in the commission of frustrated murder,
the appellants should be meted an indeterminate penalty of from nine (9) years and four (4) months
of prision mayor in its medium period as minimum to seventeen (17) years and four (4) months
of reclusion temporal in its medium period, as maximum.

IN LIGHT OF ALL THE FOREGOING, the Decision of the Regional Trial Court of San Carlos City
(Negros Occidental), Branch 57, in Criminal Cases Nos. RTC-1217 up to RTC-1219 is AFFIRMED with the
following MODIFICATIONS:
1. In Criminal Case No. RTC-1217, the Court, finding the appellants not guilty of the crime
charged for failure of the prosecution to prove their guilt beyond reasonable doubt,
REVERSES the judgment of the trial court and ACQUITS them of the said charge.
2. In Criminal Case No. RTC-1218, the appellants are found guilty beyond reasonable doubt
of murder under Article 248 of the Revised Penal Code, qualified by treachery, and are
sentenced to suffer the penalty of reclusion perpetua and ordered to pay in solidum the
heirs of the victim Eugene Tayactac, the amounts of P50,000 as civil indemnity
and P50,000 as moral damages.
3. In Criminal Case No. RTC-1219, the appellants are found guilty beyond reasonable doubt
of frustrated murder under Article 248 in relation to Article 6, first paragraph of the
Revised Penal Code and are hereby sentenced to suffer an indeterminate penalty of
from nine (9) years and four (4) months of prision mayor in its medium period, as
minimum, to seventeen (17) years and four (4) months ofreclusion temporal in its
medium period, as maximum. The appellants are hereby ordered to pay in solidum to the
victim Arnold Barcuma the amount of P25,000 as moral damages and P10,000 as
temperate or moderate damages.
Costs de oficio.

SO ORDERED.

Civil Liabilities of Appellants

The trial court ordered the appellants in Criminal Case No. RTC-1218 to pay in solidum the heirs of
the victim Eugene Tayactac, the amount of P75,000 by way of indemnity. The trial court did not award
moral damages to said heirs. This is erroneous. Since the penalty imposed on the appellants is reclusion
perpetua, the civil indemnity should be only P50,000. The heirs of the victim should also be awarded the
amount of P50,000 as moral damages.[34]
In Criminal Case No. RTC-1219, the trial court did not award moral damages to the victim Arnold
Barcuma on its finding that the prosecution failed to adduce any evidence to prove said damages. The
Court disagrees with the trial court. The victim Arnold Barcuma himself testified on his injuries. [35] He is
entitled to moral damages in the amount of P25,000. [36] Having suffered injuries and undergone medical
treatment he is, as well entitled to actual damages, which in the absence of evidence would, nevertheless,
entitle him to an award of temperate or moderate damages, herein fixed at P10,000.

The Verdict of the Court

THIRD DIVISION

43
[G.R. No. 135222. March 04, 2005]

PETER ANDRADA, petitioner, vs. THE PEOPLE OF THE PHILIPPINES, respondent.

DECISION
SANDOVAL-GUTIERREZ, J.:
Before us is a petition for review on certiorari filed by Peter Andrada, petitioner, assailing the
Decision[1] of the Court of Appeals dated September 18, 1997 in CA-G.R. CR No. 15851 and its
Resolution[2] dated August 13, 1998.
In an Information dated January 7, 1987, the Office of the City Prosecutor of Baguio City charged
petitioner with frustrated murder committed as follows:
That on or about the 24th day of September 1986, in the City of Baguio, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused with intent to kill, with evident premeditation
and with treachery, did then and there willfully, unlawfully, and feloniously attack, assault and hack one
ARSENIO UGERIO on the head twice with a bolo thereby inflicting upon latter: hacking wound, head,
resulting in 1) skull and scalp avulsion vertex; 2) depressed comminuted skull fracture, right parieto
occipital with significant brain laceration; operation done; craniectomy; vertex debridement; craniectomy;
right parieto occipital; dural repair; debridement, thus performing all the acts of execution which would
produce the crime of Murder as a consequence thereof, but nevertheless, the felony was not
consummated by reason of causes independent of the will of the accused, that is, by the timely medical
attendance extended to Arsenio Ugerio which prevented his death.
CONTRARY TO LAW.[3]
When arraigned on February 9, 1987, petitioner, with the assistance of counsel de parte, pleaded
not guilty to the crime charged. The hearing of the case ensued.
Evidence for the prosecution shows that on September 23, 1986, at around 11:30 in the evening,
T/Sgt. Teodolfo Sumabong, of the defunct Philippine Constabulary (PC), was resting in the PC barracks at
Camp Dado Dangwa, La Trinidad, Benguet when one Rommel Alcate called up requesting police
assistance. Alcate claimed that a group of persons was suspiciously roaming around his boarding house in
Ferguson Street, Baguio City.
Sgt. Sumabong and two of his companions, Sgt. Gaces and Cpl. Arsenio Ugerio, went to Alcetes
boarding house, arriving there past midnight. However, according to Alcate, the suspicious persons have
left.
On their way back to the camp at around 1:15 in the morning, the group dropped by Morlows
Restaurant, Bokawkan Street, Baguio City, for a snack. They ordered coffee and sandwiches.
While they were waiting to be served, a woman passed by their table. While Cpl. Ugerio was talking
to her, a man, later identified as Peter Andrada, herein petitioner, approached the former and scolded him.
Sgt. Sumabong, identifying himself as a PC non-commissioned officer, advised petitioner to pay his bill and
go home as he was apparently drunk.

Petitioner heeded Sgt. Sumabongs advice for he paid his bill and left the restaurant with his
companions. While Sgt. Sumabong was paying his bill, he heard Cpl. Ugerio, seated about a meter away,
moaning in pain. When Sgt. Sumabong turned around, he saw Cpl. Ugerio sprawled on the floor. Petitioner
was hacking him on the head with a bolo. Sgt. Sumabong approached them but petitioner ran away,
followed by a companion. Sgt. Sumabong chased them but to no avail.
Upon Sgt. Sumabongs instruction, Sgt. Gaces brought Cpl. Ugerio, the victim, to the St. Louis
University Hospital. Then Sgt. Sumabong reported the incident to the police station at Camdas Road and
thereafter proceeded to the hospital. When he returned to the police station, he learned that petitioner was
arrested in a waiting shed at the corner of Camdas Road and Magsaysay Avenue.
The arresting officers then brought petitioner back to the restaurant where they recovered the bolo
used in hacking the victim. Witnesses to the incident were interviewed by the police and they pointed to
petitioner as the culprit.
Dr. Francisco Fernandez, a neuro-surgery consultant, found that the victim suffered two (2) major
injuries. The first was a scalping avulsion, around 5 centimeters wide, i.e., the chopping off of a part of the
victims skull. The second was a depressed fracture, about 6 centimeters wide, found on the right parieto
occipital area of the skull. Either wound, being fatal, would have caused the death of the victim had it not
been for a timely medical treatment. After three (3) days, the victim was transferred to the V. Luna Hospital
in Quezon City. Because of the injuries he sustained, he has remained incapable to remember or recall
visual stimuli or information.
Petitioner interposed self-defense and invoked the mitigating circumstance of voluntary surrender.
His version is that he and one Romy Ramos were drinking beer with a hospitality girl named Liza inside
Morlows Restaurant, when three military men occupied the table next to them. They had pistols tucked in
their waists. Without any warning or provocation, two of the men, whom he identified as Cpl. Ugerio and
Sgt. Sumabong, approached him, slapped his face several times and pointed their guns to his head. They
cursed him and threatened to summarily execute him because he was so boastful. Cpl. Ugerio then
collared him and dragged him outside the restaurant, while Sgt. Sumabing followed. Fearful that he might
be killed, petitioner pulled out his bolo, wrapped in a newspaper, from his waist and swung it at the two
military men. He did not see if he hit any of them. Then he ran to his house in Camdas Subdivision. He
checked to see if his mother or grandmother was at home so either of them could assist him in
surrendering to the police. But neither was present. On his way to surrender to the police, he met his
mother accompanied by a policeman. They then proceeded to the police sub-station at Magsaysay Avenue
where he surrendered.
After hearing, the trial court rendered its Decision, the dispositive portion of which is quoted below,
thus:
WHEREFORE, premises considered, the Court finds the accused PETER ANDRADA guilty beyond
reasonable doubt of the crime of frustrated murder.
The Court hereby sentences him to suffer the penalty of imprisonment of 8 years and 20 days as
MINIMUM to 14 years, 10 months and 20 days as MAXIMUM; to indemnify the sum of P3,000.00,
representing part of the victims expenses for medical services and medicine, and to pay the costs.
SO ORDERED.[4]
On appeal, the Court of Appeals affirmed with modification the trial courts Decision, thus:

44
WHEREFORE, THE DECISION APPEALED FROM IS HEREBY AFFIRMED WITH THE MODIFICATION
THAT THE APPELLANT IS SENTENCED TO AN INDETERMINATE PENALTY OF FOUR (4) YEARS AND
TWO (2) MONTHS OF PRISION CORRECIONAL, AS MINIMUM, TO EIGHT (8) YEARS AND TWENTY
(20) DAYS OF PRISION MAYOR, AS MAXIMUM.
SO ORDERED.[5]
The Court of Appeals, in modifying the imposable penalty, found that petitioner is entitled to the
privileged mitigating circumstance of minority as he was only 17 years, 9 months and 20 days old at the
time of the incident.
Petitioner then filed a motion for reconsideration, but this was denied by the Appellate Court in its
Resolution dated August 13, 1998.
Hence, the instant petition.
The issues for our resolution are: (1) whether petitioners right to due process was violated; (2)
whether his plea of self-defense is in order; (3) whether the crime committed is frustrated murder or
frustrated homicide; and (4) whether he is entitled to any mitigating circumstance, assuming he is guilty.
On the first issue, petitioner argues that the Court of Appeals erred in not holding that the trial court
violated his constitutional right to due process. He contends that his counsel:
1. Failed to present all the witnesses who could have testified that he is innocent of the crime
charged;
2. Failed to present the medical certificate showing the injuries inflicted upon him by the
victim;
3. Did not notify him to attend the hearing when Sgt. Sumabong was cross-examined; and
4. Failed to submit a memorandum.
In sum, petitioner ascribes gross incompetence or gross negligence to his counsel.
The Office of the Solicitor General (OSG) counters that there was no violation of petitioners right to
due process. Petitioner was represented by counsel of his choice. If the latters performance and
competence fell short of petitioners expectations, then he should not blame either the trial court or the
Court of Appeals.
In criminal cases, the negligence or incompetence of counsel to be deemed gross must have
prejudiced the constitutional right of an accused to be heard.[6]
In the following cases, we held that there has been gross negligence or incompetence on the part of
counsel for the accused, thus:
In US v. Gimenez,[7] we remanded a criminal case for new trial when counsel for an accused
inadvertently substituted a plea of guilty for an earlier plea of not guilty, thus resulting in the precipitate
conviction of his client.

In Aguilar v. Court of Appeals and People, [8] we ordered a dismissed appeal from a conviction for
estafa to be reinstated after it was shown that the failure to file the appellants brief on time was due to
sheer irresponsibility on the part of appellants counsel.
In De Guzman v. Sandiganbayan,[9] we remanded the case for reception of evidence after counsel
for the accused filed a demurrer to the evidence notwithstanding that his motion for leave of court was
denied, thus precluding the accused to present his evidence.
In Reyes v. Court of Appeals,[10] we ordered a new trial after a showing that counsel for the accused
abandoned her without explanation.
In People v. Bascuiguin,[11] we held that the arraignment is not valid. The accused was not properly
represented by counsel de officio since he merely conferred with his client for a few minutes and advised
him to plead guilty to the crime of rape with homicide.
None of the foregoing incidents is present in the instant case. Instead, records show that counsel for
petitioner actively participated in the cross-examination of the witnesses for the prosecution to test their
credibility. At any rate, the fact that he did not choose to present other witnesses did not affect any of
petitioners substantial rights. Besides, said counsel might have valid reasons why he did not call to the
witness stand those witnesses.
We note that petitioner was present during the hearing. If he believed that his counsel de parte was
not competent, he could have secured the services of a new counsel. He did not. Having decided to retain
the services of his counsel during the entire proceedings, petitioner must be deemed bound by any
mistake committed by him. For if an accused feels that his counsel is inept, he should take action by
discharging him earlier, instead of waiting until an adverse decision is rendered and thereupon blame his
counsel for incompetence.[12]
The long-standing rule in this jurisdiction is that a client is bound by the mistakes of his lawyer.
Mistakes of attorneys as to the competency of a witness, the sufficiency, relevancy or irrelevancy of certain
evidence, the proper defense or the burden of proof, failure to introduce evidence, to summon witnesses,
and to argue the case, unless they prejudice the client and prevent him from properly presenting his case,
do not constitute gross incompetence or negligence.[13]
Having found that petitioners counsel was not so inept or motivated by bad faith, or so careless and
negligent of his duties as to seriously prejudice the substantial rights of petitioner or prevent him from
putting up a proper defense, we hold that he is bound by the decisions of his counsel regarding the
conduct of the case.[14]
On the second issue, petitioner invokes self-defense. Hence, it is incumbent upon him to prove by
clear and convincing evidence that he indeed acted in defense of himself. For in invoking self-defense, the
accused admits killing or seriously wounding the victim and thus, has the burden to justify his act. [15] The
requisites of self-defense are: (1) unlawful aggression; (2) reasonable necessity of the means employed to
repel or prevent it; and (3) lack of sufficient provocation of the part of the person defending himself. [16]
We find that the petitioner has not adequately discharged his burden of proving the elements of selfdefense. The trial court and the Court of Appeals found that at the time he hacked the victim, the latter
was still seated while he (petitioner) was behind him. Indeed, how could there be an unlawful
aggression on the part of the victim at that instance? Petitioners bare assertions that the victim slapped
him, poked a handgun at him, and threatened to salvage him were not duly proved by the evidence for the
defense. Rather, the prosecution established that it was petitioner who unexpectedly attacked the victim
from behind. Clearly, the aggressor was petitioner. Since the first element of self-defense is not present
here, such defense must fail.

45
On the third issue, petitioner contends that assuming he is guilty, he should only be convicted of
frustrated homicide, not frustrated murder. He insists that treachery was not present. His hacking the victim
was a spur-of-the-moment act prompted by self-preservation.
We are not persuaded. There is alevosia when the offender commits any of the crimes against
persons employing means, methods, or forms in the execution thereof which tend directly and especially to
ensure the execution of the crime without risk to himself from any defense which the offended party might
make.[17] We agree with the lower courts that the petitioner planned to kill the victim with treachery in mind.
At that time, the victim was seated, having just finished a meal at a late hour. His back was towards
petitioner when the latter, without warning, hacked him twice on his head with a bolo. The attack was so
sudden and unexpected that the victim had no opportunity either to avert the attack or to defend himself.
Considering that petitioner had performed all the acts of execution which would have resulted in the
death of the victim, had it not been for timely medical assistance, a cause not of the will of the petitioner,
and considering further the presence of treachery, then, the crime committed is frustrated murder, not
frustrated homicide.

SECOND DIVISION

On the fourth issue, petitioner insists that the mitigating circumstance of voluntary surrender should
have been appreciated in his favor.
Evidence for the prosecution shows that petitioner, after attacking the victim, ran away. He was
apprehended by responding police officers in the waiting shed at the corner of Cambas Road and
Magsaysay Avenue. For voluntary surrender to be appreciated, the surrender must be spontaneous,
made in such a manner that it shows the interest of the accused to surrender unconditionally to the
authorities, either because he acknowledges his guilt or wishes to save them the trouble and expenses
that would be necessarily incurred in his search and capture.[18] Here, the surrender was not spontaneous.

[G.R. No. 142500. April 20, 2001]

THE

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

CESPON, accused-appellant.

SO ORDERED.
Panganiban, (Chairman), Corona, Carpio-Morales, and Garcia, JJ., concur.

ACA-AC

DECISION

Anent the modification of the penalty by the Court of Appeals, the same is in order.
WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals dated September 18,
1997 and its Resolution dated August 13, 1998 in CA-G.R. CR No. 15851 are AFFIRMED. Costs against
petitioner.

vs. DECOROSO

MENDOZA, J.:
This is an appeal from the decision, [1] dated February 19, 1994, of the Regional Trial Court, Branch
4, City of Tagbilaran, finding accused-appellant Decoroso Aca-ac y Cespon, alias Kokong, guilty of
frustrated rape and sentencing him to suffer the indeterminate penalty of imprisonment from twelve (12)
years of prision mayor, as minimum, to seventeen (17) years, four (4) months, and one (1) day ofreclusion
temporal, as maximum, with accessory penalties, and to indemnify the complainant Fritzie Aca-ac the
amount of P30,000.00 as moral damages and P20,000.00 as exemplary damages. Originally taken to the
Court of Appeals, the appeal was certified to this Court pursuant to Rule 124, 13 of the Revised Rules on
Criminal Procedure in view of the appeals courts ruling [2] that accused-appellant is guilty of consummated,
not frustrated, rape and that the appropriate penalty to be imposed on accused-appellant is reclusion
perpetua.
The facts are as follows:
On the basis of criminal complaints [3] of the minor Fritzie Aca-ac, four informations [4]for rape were
filed against accused-appellant in the Regional Trial Court of Tagbilaran City.
In Criminal Case No. 7091, the information alleged:
That on or about the 22nd day of September, 1990 at Barangay Villalimpia, Municipality of Loay, Province
of Bohol, Philippines and within the jurisdiction of this Honorable Court, the above-named accused through
craft, lured and brought the victim Fritzie Aca-ac, a minor below twelve years of age, to the formers house
and to his bedroom and thereafter, with intent to have sexual intercourse, removed the victims panty, let
her lie down while he lay on top her, inserted his penis into her labia minora near the clitoris of the vagina

46
and succeeded in having carnal knowledge with the victim with her vitiated consent since she is below
twelve years old, to the damage and prejudice of the said offended party.
CONTRARY TO LAW.
In Criminal Case No. 7092, the information charged:
That on or about the 17th day of October, 1990 at Barangay Villalimpia, Municipality of Loay, Province of
Bohol, Philippines and within the jurisdiction of this Honorable Court, the above-named accused through
craft, lured the victim Fritzie Aca-ac, a minor below twelve years of age to remove her shorts and panty
and to lie down on the ground, and thereafter, the accused inserted his penis into her vagina near the
clitoris and vaginal opening and succeeded in having carnal knowledge with the victim with her vitiated
consent since she is below twelve years old, to the damage and prejudice of the said offended party.
CONTRARY TO LAW.
In Criminal Case No. 7093, the information alleged:
That on or about the 12th day of January, 1991 at Barangay Villalimpia, Municipality of Loay, Province of
Bohol, Philippines and within the jurisdiction of this Honorable Court, the above-named accused through
craft, lured the victim Fritzie Aca-ac, a minor below twelve years of age to go to a bushy place near a nipa
plantation, and, upon reaching the place, let her undress and lie down while he lay on top of her, and
thereafter, he inserted his penis inside her vaginal opening near her clitoris and succeeded in having
carnal knowledge with the victim with her vitiated consent since she is below twelve years old, to the
damage and prejudice of the said offended party.
CONTRARY TO LAW.
In Criminal Case No. 7094, the information asserted:
That on or about the 8th day of September, 1990 at Barangay Villalimpia, Municipality of Loay, Province of
Bohol, Philippines and within the jurisdiction of this Honorable Court, the above-named accused through
craft, lured and brought the victim Fritzie Aca-ac, a minor below twelve years of age, to an old uninhabited
house, and thereafter, upon reaching the place, took off her shorts and her panty with intent to have sexual
intercourse with her and then let her lie down after which the accused lay on top of her and inserted his
penis into the labia minora near the clitoris of the vagina of the victim and succeeded in having carnal
knowledge with her vitiated consent since she is below twelve years old, to the damage and prejudice of
the said offended party.
CONTRARY TO LAW.
Accused-appellant having pleaded not guilty to the charges, the joint trial of the cases was set. Five
witnesses were presented by the prosecution in support of its case, namely, complainant Fritzie Aca-ac,
her mother, Felipa Aca-ac, her classmate, Algerico Lonio, the physician, Dr. Stella Maris J. Amora, and
rebuttal witness Esteban Dagandan.
In Criminal Case No. 7094, complainant testified that on September 8, 1990, she was asked by her
mother Felipa Aca-ac to buy cooked fish (inon-onan) for dinner from a store in Barangay Villalimpia, Loay,

Bohol. On her way home, she met accused-appellant, who held her by the hand and forced her to go with
him to the vacant house of one Pinay Aguirre. Once inside, accused-appellant removed complainants
shorts and panty and made her lie down on the floor, which was covered with coconut leaves. Complainant
claimed that accused-appellant fondled her breasts and licked her private parts. He then went on top of her
and made push and pull movements. When he was through, complainant said, accused-appellant
withdrew his penis and white fluid came out. Complainant said she then wiped her private parts and put on
her clothes. She said she did not tell anyone what happened to her.[5]
Algerico Lonio, a resident of Barangay Villalimpia, Loay, Bohol and a classmate of complainant,
testified that at about 7:00 p.m. of September 8, 1990, he was at the house of one Emmie Blasco when he
saw accused-appellant and complainant going inside the house of Pinay Aguirre, which was known in the
neighborhood to be haunted. Out of curiosity, he said, he followed the two and peeped through the fence
at the back. He saw accused-appellant undress complainant, go on top of her, and make push and pull
movements. Lonio said he knew that the two were having sexual intercourse, which lasted for about three
minutes. He claimed he did not tell anyone what he saw for fear of his life. But, Lonio said, on February 27,
1991, he and complainant had a quarrel in school during which he asked complainant about the
rape. According to Lonio, complainant admitted that accused-appellant had raped her and then left
crying. Lonio later narrated the incident to complainants mother.[6]
In Criminal Case No. 7091, complainant testified that at about 4:00 p.m. of September 22, 1990,
after gathering some guavas in Barangay Villalimpia, Loay, Bohol, she passed by the house of accusedappellant on her way home. When accused-appellant saw her, he tried to lure her on the pretext that he
had some papayas for her. Complainant got inside the house but, sensing that there was no papaya in the
house, she immediately tried to leave. Accused-appellant, however, closed the door and brought her to his
bedroom where he raped her. Accused-appellant threatened her with harm if she told anyone about the
incident.[7]
In Criminal Case No. 7092, complainant testified that at about 4:30 p.m. of October 17, 1990, as she
was gathering firewood in Barangay Villalimpia, Loay, Bohol, accused-appellant came and forced her to
remove her shorts and panty. She was made to lie down on the ground covered with nipa leaves and was
then raped by accused-appellant. Complainant went home after the incident, bringing with her the firewood
she had gathered.[8]
In Criminal Case No. 7093, complainant testified that at about 1:00 p.m. of January 12, 1991, as she
was on her way home from the house of a certain Betty, she saw accused-appellant near the house of one
Ned Reyes in Villalimpia, Loay, Bohol. Accused-appellant seized her and dragged her to a bush near the
plantation and made her undress and lie down. Then he allegedly forced her to have sexual intercourse
with him.[9]
Complainants mother, Felipa Aca-ac, testified that accused-appellant is the cousin of her father-inlaw, Faustino Aca-ac. She said that in the afternoon of February 27, 1991, she learned from Lonio that her
daughter had been raped by accused-appellant. She said that when she confronted her daughter, the latter
admitted that accused-appellant had raped her four times. According to her, the next day, February 28,
1991, she took Fritzie to Dr. Stella Maris J. Amora of the Governor Celestino Gallares Memorial Hospital
for medical examination. Felipa said that accused-appellant offered to pay P12,000.00 as settlement of the
case.[10]
Dr. Amora testified that there was no laceration in the hymen of complainant. She said, however,
that it was possible that there could be a penetration of a male organ up to the labia minora and the hymen
would still be intact.[11]
The defense presented six witnesses, namely, accused-appellant Decoroso Aca-ac, Faustino Acaac, Felix Adorable, Rosalio Pamayloan, Petronia Aca-ac, and Alberto Cempron.

47
Accused-appellant Decoroso Aca-ac y Cespon, 57 years old at the time of the alleged rape
incidents, denied the charges and claimed that Felipa Aca-ac had instigated complainant to file the
charges because he told Felipas husband that Felipa was having an affair with another man. He said the
charges were trumped up by Felipa because she wanted to extort P30,000.00 from him. He also stated
that he had a quarrel with Felipas husband, Roberto, because the latter had stolen his chicken. Accusedappellant said he reported the matter to Barangay Captain Felix Adorable. He stated that Faustino Aca-ac
tried to get the parties to settle the case, but he failed in his efforts. Accused-appellant alleged that at 57,
he was already old and that he could no longer have an erection.[12]

indeterminate penalty of imprisonment ranging from twelve (12) years of prision mayor, as minimum, to
seventeen (17) years, four (4) months and one (1) day of reclusion temporal, as maximum, with all its
accessory penalties, to indemnify the offended party Fritzie Aca-ac the sum of P30,000.00 as moral
damages and another amount of P20,000.00 in the concept of exemplary damages.

Faustino Aca-ac, grandfather of complainant and a cousin of accused-appellant, testified that he did
not believe accused-appellant committed the crime. He said accused-appellant and complainants parents
had a misunderstanding which he tried to settle unsuccessfully.[13]

SO ORDERED.[21]

Felix Adorable, a former barangay captain of Villalimpia, Loay, Bohol and an incumbent barangay
kagawad, confirmed accused-appellants claim that he had filed a complaint against Roberto Aca-ac,
complainants father, with the Katarungang Pambarangay.[14]
Rosalio Pamayloan was a neighbor of accused-appellant and a resident of Villalimpia, Loay, Bohol
for 12 years. He testified that he had been a principal in a public school since 1983. He personally knew
accused-appellant and vouched for the character of accused-appellant as a good man.[15]
Petronia P. Aca-ac, wife of accused-appellant, testified that she and her husband had been married
for 36 years and had six children, two of whom had died. On the four occasions on which it was alleged
accused-appellant had raped complainant, Petronia said her husband was in their house helping her make
nipa shingles.[16]
On rebuttal, the prosecution presented Esteban Dagandan, who testified that complainants mother,
Felipa, worked as a nurse of his (Dagandans) wife, because the latter had suffered a stroke. Dagandan
disputed accused-appellants claim that complainant and her mother had demanded P30,000.00 for the
settlement of the case. He said that sometime in May 1992, Albert Berting Cempron, a nephew of
accused-appellant, accompanied by his wife Lydia, thrice went to his (Dagandans) house asking Felipa to
withdraw the case against accused-appellant. Accused-appellant offered to pay Felipa P12,000.00 as
settlement of the case, but the same was rejected.[17]
Felipa Aca-ac was recalled to the stand. She denied Rosalio Pamayloans testimony that she
proposed a settlement of the case for P30,000.00 and that accused-appellant had no criminal record in
their barangay. She said that she rejected Albert Cemprons P12,000.00 offer, made in behalf of accusedappellant, for the settlement of the case.[18]
Complainant Fritzie Aca-ac was also recalled to the stand. She rebutted the testimony of accusedappellant that he could no longer have an erection. She said she saw accused-appellant insert his erect
penis into her vulva.[19]
On sur-rebuttal, Alberto A. Cempron, the barangay captain of Matin-aw, Carmen, Bohol, testified that
he tried to bring the parties to an amicable settlement of their case because they are relatives and his wife
is a cousin of complainants father. However, he said he was unsuccessful as accused-appellants wife was
willing to pay only P12,000.00, but Felipa wanted P30,000.00.[20]
On February 19, 1994, the trial court rendered a decision convicting accused-appellant of frustrated
rape in Criminal Case No. 7094 and acquitting him of the charges in the rest of the cases. The dispositive
portion of its decision reads:
WHEREFORE, under Criminal Case No. 7094, the Court finds accused Decoroso Aca-ac y Cespon guilty
beyond reasonable doubt of the crime of frustrated rape and he is hereby sentenced to undergo an

As regards the three other above-entitled cases, Criminal Case Nos. 7091, 7092, & 7093, all for rape,
accused Decoroso Aca-ac y Cespon, alias Kokong, is hereby acquitted on the ground of reasonable doubt.

On appeal, the Court of Appeals held that accused-appellant was guilty of consummated rape and
accordingly sentenced him to reclusion perpetua.
Hence, this appeal.
First. In holding that the crime committed was frustrated rape, the trial court relied on the findings of
Dr. Amora which showed that complainant did not have any lacerations in her hymen which in factwas
intact. The trial court pointed out that there was no evidence of penetration into the vagina of complainant.
This is error. As this Court explained in People v. Orita,[22] rape is either attempted or
consummated. There can be no frustrated rape. While the penultimate paragraph of Art. 335 of the
Revised Penal Code[23] prescribes death for attempted or frustrated rape, and a homicide committed by
reason or on the occasion thereof, the provision on frustrated rape is a dead provision. This Court said
in Orita:
Clearly, in the crime of rape, from the moment the offender has carnal knowledge of his victim, he actually
attains his purpose and, from that moment also all the essential elements of the offense have been
accomplished. Nothing more is left to be done by the offender, because he has performed the last act
necessary to produce the crime. Thus, the felony is consummated. In a long line of cases (People v. Oscar,
48 Phil. 527 (1925); People v. Hernandez, 49 Phil. 980 (1925); People v. Royeras, 56 SCRA 666 (1974);
People v. Amores, 58 SCRA 505 (1974)), we have set the uniform rule that for the consummation of rape,
perfect penetration is not essential. Any penetration of the female organ by the male organ is
sufficient. Entry of the labia or lips of the female organ, without rupture of the hymen or laceration of the
vagina, is sufficient to warrant conviction. Necessarily, rape is attempted if there is no penetration of the
female organ (People v. Tayaba, 62 Phil. 559 (1935); People v. Rabadan and Olaybar, 53 Phil. 694 (1927);
United States v. Garcia, 9 Phil. 434 (1907)) because not all acts of execution were performed. The offender
merely commenced the commission of a felony directly by overt acts. Taking into account the nature,
elements, and manner of execution of the crime of rape and jurisprudence on the matter, it is hardly
conceivable how the frustrated stage in rape can ever be committed.[24]
As the Court of Appeals noted, accused-appellant should be convicted of rape in its consummated
stage and not merely for frustrated rape, since the entry of the male organ into the labia of the female
organ alone is sufficient to constitute consummated rape.
For that matter, the mere touching of the labia or pudendum by the male organ is enough to
consummate the crime of rape.[25] It is enough that there is a penetration, however slight, of the external
genitalia.[26] Consequently, the fact that there was no laceration of complainants private parts or that her
hymen was intact, as testified to by Dr. Amora, [27] does not preclude a finding of rape against accusedappellant. It bears emphasis that a broken hymen or laceration of any part of the female genital is not a
pre-requisite for a conviction for rape.[28]

48
Accused-appellants claim that it was impossible for him, then 57 years old, to commit the crime of
rape because he could no longer have an erection is self-serving. Age is not the criterion in determining
sexual interest and potency.

C O U R T (TO WITNESS)

The birth certificate (Exh. C) of complainant shows that she was born on April 9, 1979. Since
complainant was then about 11 years old when she was raped by accused-appellant on September 8,
1990, the crime is statutory rape under Art. 335, paragraph 3 of the Revised Penal Code.

A- I tried to avoid his kiss but he held my hands.

Second. Accused-appellant contends that the way complainant narrated the lurid details of how she
was allegedly raped is not the way an innocent child below 12 years of age testifies, but the way a woman,
who is worldly and experienced in sex, will testify. Accused-appellant questions complainants narration as
he likens them to stories contained in pornographic magazines and movies.
The contention has no merit. Where an alleged rape victim says she was sexually abused, she says
almost all that is necessary to show that rape had been inflicted on her person, provided her testimony
meets the test of credibility.[29] For no woman would allow an examination of her private parts or go through
the humiliation of a trial unless she has actually been so brutalized that she desires justice for her
suffering.[30]
In this case, accused-appellant has not shown any reason for complainants testimony not to be
given credence. At the time she was raped, complainant was an 11 year-old Grade 5 student of Loay
Central School in Loay, Bohol. After she was deflowered by accused-appellant, she was forced to silence
by threats on her life. It was only on March 1, 1991 when she executed a sworn statement [31] before the
police authorities narrating therein how she had been raped four times by accused-appellant. She told her
story in open court. Complainant testified how she was raped on September 8, 1991, thus:
ATTY. ALEXANDER H. LIM:
Q- Now, what happened after your short pants and panty were removed?
A- That was the time that I squatted, I have no more panty and short pants.
Q- Now, when you said you were squatting, did it not occur to your mind to run away or shout?
A- No, I did not.
Q- And so what happened after that?
A- He pushed down my knees and caused me to lie down.
C O U R T:
Q- You mean the accused pushed down your knees and thereafter pushed your body causing you to
lie down face up?
A- When he pushed down my knees, so I squatted at that time and he also pushed my shoulder that
caused me to lie down on my back.
ATTY. ALEXANDER H. LIM:
Q- After that what happened next?
A- He kissed me on the lips.
Q- Now, when he did that to you, did you not resist?
A- I did not.

Q- Why did you not like to be kissed by the accused at that time?

ATTY. ALEXANDER H. LIM:

Q- Now, did you not bite him? When you did not like his kiss?
A- I did not.
Q- Still you did not offer any resistance to shout?
A- I resisted but he held my hands.
Q- Why did you tell the Court that you uttered something?
A- I told him.
Q- Meaning your voice was not heard?
A- He told me not to shout.
Q- Why did you not shout the way that it could be heard by your neighbors?
A- Because he told me not to make any noise for he will kill me.
Q- Is that all?
A- Yes, sir.
Q- But he did not carry any weapon?
A- No, sir.
Q- Now, after that kiss on your lips, what happened next?
A- He sucked my nipples.
Q- Did you not push him when he sucked your nipples?
A- I held the back of his head.
Q- How did he suck your nipples?
FISCAL REINERIO S. NAMOCATCAT:
Is there a particular way of sucking nipples?
ANSWER OF WITNESS:
He raised my t-shirt.
ATTY. ALEXANDER H. LIM:
Q- So, he raised your t-shirt in sucking your nipples?
A- Yes, sir.
Q- Still in raising your t-shirt, you did not shout?

49
A- I told him dont, but he did not heed.

A- He mounted on me.

Q- Still in a low voice?

Q- Before that, while the accused was licking your vagina, were your legs apart?

A- Yes, sir.

A- Because my legs were apart, he licked my vagina.

Q- You did not shout loudly?

Q- You made it voluntarily or the accused made it apart?

A- I did not because he told me if I will make a noise or report the matter, he will kill me.

A- I was the one who spread my two legs.

Q- You were afraid of him when you said he did not hold any weapon?

ATTY. ALEXANDER H. LIM:

A- I was afraid he would box me.

Q- In doing so, when you spread your legs, the accused used his two hands?

C O U R T:

A- Yes, sir, he used his two hands.

Any further questions?

Q- At the same time he was licking your vagina?

ATTY. ALEXANDER H. LIM:

A- Yes, sir.

Q- Now, at that time according to you he sucked your nipples, you did not consider that you were
already endangered?

Q- And in that very moment you could stand up or you could squat or use your hand to fight back or to
resist?

A- I have not known of such danger.

A- I tried to rise up and pushed his forehead.

Q- After that, what happened next?

Q- And you succeeded in rising up pushing his forehead?

A- He also sucked the other nipple.

A- After I pushed his forehead, he crawled and held my hands and let me lie down again.

Q- So, the two nipples were sucked?

Q- In that process, did you not shout?

A- Yes, sir.

A- I did not shout, I was afraid he might press me.

Q- So, what happened after that?

Q- But he did not press you?

A- He licked my vagina.

A- But he told me if I will make noise, he will kill me.

Q- When he licked your vagina, you did not shout or protest?

Q- Now, after that what happened?

A- I told him dont, I tried to stand up but he pushed me and pressed my forehead.

A- He mounted on me.

Q- At that moment he was very busy licking your vagina, what else did he do?

Q- His whole weight mounted on you?

A- He pressed my forehead.

A- Yes, sir, his whole body.

Q- While he was licking your vagina, you pushed his head?

Q- And how did you feel?

A- I pushed his forehead.

A- I cannot push his head because he held my hands this was the time I could not move.

C O U R T:

Q- So, he was holding your hands and you could cross your leg if you want to?

Q- Did you succeed when you stand up after pushing the forehead of the accused?

A- I cannot cross my legs because his two legs were over me.

A- Because of his strength, when I stood up, he held my hand and I was made to lie down again.

C O U R T (TO WITNESS):

Q- While he was licking your vagina, where was the hand of the accused?

Q- You mean his body was over your spread legs while mounting from the licking until he mounted on
you?

A- When I pushed the forehead, he was licking my vagina.

Q- So, what happened after that?

A- Yes, sir, his body was over my two legs.

50
C O U R T:
Any further questions?
ATTY. ALEXANDER H. LIM:
Q- Now, what happened after that?
A- He made a push and pull movement.
Q- What did you feel when he was doing that act of push and pull movement?
A- There was something hot that I felt on my vagina.
C O U R T:
Why did you feel something hot in your vagina?
A- It seems that there was something hot that went out from my vagina. It was a sticky fluid.
Q- Where did the fluid come from?
A- May be it came out when he put his penis on my vagina.
Q- Did you feel the hot fluid coming from the penis of the accused and did you feel inside your vagina
or from the labia of your vagina?
A- The penis was inside my vagina because he tried to make way to the large opening of my vagina
so that his penis will enter.
Q- Did you feel the penis of the accused penetrating your vagina?
A- Yes, sir, it went inside.
COURT (TO WITNESS)
Q- What happened to your vagina, did it bleed when the penis of the accused entered your vagina?
A- The penis did not enter but just inside the opening of my vagina.

former deserves more credence.[34] That is why accused-appellant had to summon to his aid an alleged
affidavit of desistance (Exh. 3) of complainant and her mother. But how could this bind complainant and
her mother or prove anything when the so-called affidavit is unsigned?
Third. Accused-appellant says complainant did not immediately report the incidents to the
authorities nor tell the same to her mother. He claims that the cases were filed merely to extort money from
him.
These claims have no basis. The fact that complainant did not immediately report the matter to the
authorities was fully explained by the prosecution. Complainant was only 11 years old when the rape
incidents took place. Young girls usually conceal for some time their defilement. [35] Moreover, accusedappellant, being the cousin of her paternal grandfather, exercised moral ascendancy over complainant and
even threatened her with death if she told anyone what he had done to her.
Nor is there any probable reason for complainant to allow herself to be used as a pawn of her
mother Felipa to extort money from accused-appellant. Unless it can be shown that complainant was
moved by ill will to falsely implicate accused-appellant, the inescapable conclusion is that her testimony is
worthy of full faith and credit.[36]
Fourth. Accused-appellant doubts the veracity of Algerico Lonios testimony that he had witnessed
the rape of complainant on September 8, 1990. Accused-appellant points out that Lonio failed to report the
incident to complainants parents or to the authorities despite the fact that there was no threat to his
life. Accused-appellant also points out certain improbabilities in the testimony of Lonio, to wit: that he
peeped through the back fence of the house and saw accused-appellant raping complainant; that despite
the fact that the supposed incident happened between 7:00 to 8:00 p.m., no mention was made of any
form of illumination of the place; and that accused-appellant made push and pull movements when the
medical findings show that complainants hymen was intact, thereby proving that there could not have been
any penetration by accused-appellants organ.
These arguments have no merit. On cross-examination, Lonio said that he knew what would happen
to complainant when accused-appellant took her to the empty house of Pinay Aguirre because his (Lonios)
own younger sister and the sister of complainant had been abused by accused-appellant before. He said
he saw how accused-appellant violated complainant against her will.[37]
Answering questions of the trial court, Lonio categorically said:

Q- You mean in the vulva of your vagina?

COURT: (TO WITNESS)

A- It was not inside the opening of the vagina but near the clitoris.

Q You said that you followed the two, accused and the complainant, after they entered the gate of the
house of Pinay Aguirre. Did accused Decoroso not close the gate after they gained entrance to
the gate?

Q- So, you are now changing your testimony, you said earlier that the penis of the accused penetrated
your vagina and now you are changing your testimony by saying that the penis of the accused
only touched the clitoris of your vagina?

A Decoroso closed the gate.

FISCAL REINERIO S. NAMOCATCAT:

Q Was it locked?

The witness is trying to say to enter the mouth of the vagina until the clitoris. This child is still very
young to demonstrate the fact that the penetration was made up to the labia minora of the
victim.[32]

A He just closed it without locking.

Her consistent testimony despite intense and lengthy interrogation [33] belies accused-appellants
claim that she was telling a tale culled from pornographic magazines or movies. Faced with complainants
testimony, accused-appellant could only offer the defense of denial. It is well-settled that denial cannot
prevail over the positive identification and categorical testimony of complainant. The rule is that between
the positive declarations of the prosecution witnesses and the negative statements of the accused, the

Q How far is the gate to the house of Pinay Aguirre? To the main door of her house?
INTERPRETER:
Witness pointing to a distance indicating 3 to 4 meters.
COURT:

51
Q What door was used when they entered the house? The back door, or front door, or side door.

A It was well lighted because the opposite house was well lighted.

A Side door.

Q And the light would reach the house of Pinay Aguirre?

Q How do you know that they were using the side door when they entered the house?

A Yes.

A Because I saw them.

Q The two were seeing you when you entered the gate following them?

Q When you saw the complainant with her shorts already pulled down, did I hear you correctly that the
accused with the bended knees made a push-and-pull movement of the body of the
complainant?

A They did not see me.

A Yes.

Q Did you enter the house of Pinay Aguirre using the side door taken by the two when they entered
the same house?

Q Was his penis exposed?

A No.
Q Where were [you] posted then?
A Inside the fence because I climbed over the bamboo fence.
Q Fence around the house of Pinay Aguirre?

A Yes, I saw.
Q You said that the accused licked the vagina of the complainant. Which happened first, the licking of
the vagina or the push-and-pull movement?
A The licking of the vagina happened first and after that, the accused made a push-and-pull
movement.

A It only connected the gate because there was a poultry.

Q Since you said that the penis of the accused was exposed, did we understand from you that the
accused also pulled down his trousers, as well as his underwear?

Q So, you did not enter the house of Pinay Aguirre where the complainant and the accused had
entered at 7:00 oclock in the evening of September 8, 1990?

A Yes.

A I did not.

Q Did you see the penis of the accused penetrate into the vagina of the complainant?

Q Why did you say that Fritzie Aca-ac was already lying down and her short was pulled and her
blouse was raised above her breast?

A I did not see because Fritzie was under.

A I peeped.

INTERPRETER:

Q There was a hole or there was a window?

Witness indicating a distance of 3 to 4 meters.

A From a hole of a fence which is a hogwire.

COURT:

Q How far was that fence made of hogwire to the house of Pinay Aguirre where the complainant and
the accused entered?
INTERPRETER:

Q Did you hear any utterances [from] either of the two regarding the push-and-pull movement made
by the accused? Did you hear anything from the accused while making a push-and-pull
movement?

Witness indicating a distance of 3 to 4 meters.

A None.

COURT:

Q From complainant Fritzie, did you hear anything from her while the accused was making a pushand-pull movement over her?

Q So that that portion of the house where the two entered was not surrounded by any walling in such
a way that they could be seen from the wire?

A I did not hear any word from Fritzie.

Q In that precise moment, how far were you to the two?

Q How do you describe the house? Is it two storeys, or a building without walls?

Q You said earlier that the accused and the complainant had several intercourse. This is also testified
to by you during the cross-examination. Do you know that the two were having sexual
intercourse?

A A two-storey house. Only the first storey has no wall because it was already destroyed by a storm.

A Because of the movement of Decoroso.

Q Was the place lighted, considering that it was already 7:00 oclock in the evening the incident
allegedly happened?

Q After the push-and-pull movement, what transpired next?

A No wall.

A No more.[38]

52
The alleged inconsistencies in the testimony of Lonio as to the details of the September 8, 1990
rape incident are inconsequential. It was evident that Lonio was telling the truth. He cried after narrating to
the court how he told his mother about the incident. When the trial judge asked him why he cried, Lonio
said that he was hurt because the same thing happened to his younger sister. [39] He also said that he kept
his silence in the beginning because he feared for his life.[40] The testimony of Lonio contains details that
dovetails on material points with the testimony of complainant.
Fifth. While increasing the imposable penalty to reclusion perpetua in view of its conclusion that
accused-appellant was guilty of statutory rape, the Court of Appeals affirmed the trial courts award
ofP30,000.00 for moral damages and P20,000.00 for exemplary damages in favor of the complainant.
This ruling must be modified. In accordance with current rulings of this Court, the award of moral
damages should be increased to P50,000.00.[41] In addition, complainant should be paid P50,000.00 as
civil indemnity.[42] On the other hand, the award of P20,000.00 as exemplary damages should be deleted
for lack of basis.
WHEREFORE, the decision of the Court of Appeals finding accused-appellant Decoroso Aca-ac y
Cespon guilty of statutory rape and sentencing him to suffer the penalty of reclusion perpetua is
AFFIRMED with the MODIFICATION that accused-appellant is ordered to pay complainant Fritzie Acaac P50,000.00 as civil indemnity and, in addition, P50,000.00 as moral damages. The award ofP20,000.00
as exemplary damages is hereby deleted.
SO ORDERED.
Bellosillo, (Chairman), and Buena, Jr., JJ., concur.
Quisumbing and De Leon Jr., JJ.,on leave.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-10774

May 30, 1964

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
OSCAR CASTELO, AUGUSTO MELENCIO alias AUGUST,
BIENVENIDO MENDOZA alias BEN ULO,

53
JOSE DE JESUS Y LINGAT alias PEPING,
HIPOLITO BONIFACIO Y DE GUZMAN alias POL,
DOMINGO GONZALES Y SALVACION alias DOMING &
JOCKEY SALVACION, FELIX MIRAY Y GUTIERREZ alias PILE,
PEDRO ENRIQUEZ alias PEDRING PASIG alias BUSOG, accused-appellants.
PER CURIAM:
This is an appeal from the decision of the Court of First Instance of Rizal in its Criminal Case No. 3023,
finding appellants Oscar Castelo, Bienvenido Mendoza alias Ben Ulo, Jose de Jesus y Lingat alias Peping,
Hipolito Bonifacio y de Guzman alias Pol, Domingo Gonzales y Salvacion alias Doming & Jockey
Salvacion, Felix Miray y Gutierrez alias Pile, Pedro Enriquez alias Pedring Pasig alias Busog, and Augusta
Melencio alias August, guilty of murder and sentencing them to death. These eight defendants, together
with eight others, were charged with having murdered Manuel P. Monroy in the night of June 15, 1953.
During the course of the proceedings, however, the case was dismissed for lack of evidence, as against
Adelaida Reyes, Dra. Herminia Castelo-Sotto, Felix Tamayo and Leonardo Caparas. Rogelio Robles
turning state witness, was discharged. The three others - Salvador Realista, Rading Doe and John Doe
were still at large. A joint trial was held at which about 150 witnesses testified and more than one thousand
documentary exhibits were introduced. The Hon. Emilio Rilloraza, Judge, in a long and exhaustive decision
(186 printed pages) convicted the herein mentioned appellants.
About a week after the promulgation of the decision, state witness Rogelio Robles executed an affidavit
dated April 16, 1955 (Exh. 1-New Trial) wherein he repudiated all he had testified to, branding it to be a
series of falsehoods. This prompted Castelo to move for a new trial, which was granted by vacation judge
Juan L. Bocar, because Judge Rilloraza who had penned the original decision was then on vacation. The
Solicitor General questioned the Bocar order by certiorari in G.R. No. L-9050. However, we sustained His
Honor's decree. A new trial was had only with respect to Castelo, as the seven other appellants had
already perfected their appeal. After the rehearing, again Castelo was found guilty and sentenced as
before; but he was in addition required to indemnify the heirs of the deceased in the amount of P3,000.00.
During the pendency of this trial, Castelo filed a motion for bail and new trial on the ground of newly
discovered evidence; and the seven other appellants likewise filed a motion for new trial on identical
grounds. These two motions were acted upon in our Resolution of July 15, 1957, to the effect that "action
on the motions for bail and for new trial filed by appellants' counsel is deferred until the time when the
appeal is considered upon the merits." Thereafter, several motions for reconsideration and for bail were
one after another, filed by Castelo, which were repeatedly denied.

On April 29, 1953, Senator Claro M. Recto, now deceased aired on the floor of the Senate charges against
Castelo for bribery and extortion, allegedly perpetrated when Castelo was still Manila judge. The following
month and at the instance of Secretary Castelo, Senator Recto found himself a defendant in a bigamy
case in the Court of First Instance of Bulacan. Recto countered with a disbarment charge, and the feud
between them gained wide publicity, involving as it did two prominent public officials. Recto's charges were
investigated by the Senate Blue Ribbon Committee, with Monroy as Recto's star witness1 to the charging
or irritation of both Castelo and Ben Ulo who had exerted efforts to prevent him from so testifying.
Moreover, Monroy was likely to be again a witness in the disbarment proceedings instituted by Recto
before the Supreme Court, which rested on the same charge of bribery.
With this background, and not long after Ben Ulo had become the personal bodyguard of Secretary
Castelo, one early morning in the latter part of May, 1953, Ben Ulo sent for his "boys" Rogelio Robles and
Florentino Suarez alias Scarface. When these arrived at his house at the corner of Perla and Sande
streets, Tondo, Ben Ulo told them that Senator Recto and Secretary Castelo were mutually suing each
other (nagdedemandahan); and so he wanted his said "boys" to kill Monroy; both agreed. Ben Ulo then
told them to wait downstairs. The trio left in Ben Ulo's jeep driven by Felix Miray and headed for Castelo's
residence at Sampaloc Avenue, Quezon City, arriving there after eight that same morning. Ben Ulo
introduced Robles and Scarface to Secretary Castelo in the balcony or porch of the house saying, "These
are my boys." Castelo nodded and smiled. Forthwith, in the presence of and within the hearing of Robles
and Scarface, Castelo told Ben Ulo "Kailangan mapatay si Monroy" (Monroy must be killed), to which Ben
Ulo nodded in quiet assent. Thereupon, Castelo and Ben Ulo went inside. Five minutes later, Ben Ulo
came out and told Robles and Scarface to wait in the yard where Ben Ulo's "other boys" were idling by,
namely, Domingo Gonzales, Jose de Jesus, Pedro Enriquez and Salvador Realista, all of whom were
confidential agents of the Department of National Defense, appointed by Castelo at the
recommendation of Ben Ulo. Later that same morning, Ben Ulo, Robles and Scarface rode in a P.I. jeep
driven by Felix Miray and, together with the "other boys" riding in another jeep, escorted Secretary Castelo
to his office at Camp Murphy Castelo and Ben Ulo entered the office while Robles and Scarface remained
outside. When Ben Ulo came out, he told Robles to come back on June 1st to get his appointment as
special agent of the Department of National Defense.
Came June 1st, Robles and Scarface went back to Camp Murphy where Ben Ulo handed Robles the
latter's appointment as confidential agent, signed by Castelo. At eleven o'clock that noon, Castelo went
home to Sampaloc Avenue riding in Car No. 6, followed by Ben Ulo, Robles and Scarface in a jeep driven
by Miray, and by another jeep occupied by the "other boys" Peping de Jesus, Domingo Gonzales, Salvador
Realista and Pedro Enriquez. Once in the house, Castelo and Ben Ulo had a huddle inside, while Robles
and Scarface remained at the balcony. Later Ben Ulo came out and sat beside the two. Shortly afterwards,
Castelo joined the trio in the balcony and told them, "Gusto kong mapatay si Monroy pagkaalis ko" (I want
Monroy killed after my departure), to which Ben Ulo replied in Tagalog "I will take care of it."

Considering now the appeal on the merits, it appears that the prosecution has established the following:
FACTS: In January 1953, appellant Oscar Castelo, then a Judge of the Court of First Instance of Manila,
became Secretary of Justice; and on March 1st of that year, he was designated to act as Secretary of
National Defense in addition to his duties in the Justice Department. He held these twin positions until the
end of the year 1953.
Sometime in April, 1953, Bienvenido Mendoza alias Ben Ulo, a police character and an ex-convict, got
acquainted with Secretary Castelo at the Country Club in Baguio through Capt. Alejo, his aide. Both being
from Nueva Ecija, the ex-convict apprised the Secretary of his enemies (those he had sent to jail as judge)
and this aroused Castelos interest. So he invited Ben Ulo to "help him" and the latter became his trusted
bodyguard.

On June 8, 1953, Secretary Castelo left for Korea; but before boarding the plane at the airfield, he called
his nephew Augusto Melencio (who was also agent of the Defense Department) and Ben Ulo and told
them, "Huwag lang hindi ninyo mapatay si Monroy bago ako dumating" (Don't fail to kill Monroy before my
return) to which Ben Ulo replied, "Huwag kang mag-alala, halos patay na siya" (Don't you worry, he is as
good as dead.)
About two days after Castelo had left, Ben Ulo gathered his "boys" at his house in Tondo and discussed
the killing of Monroy. In the evening, the group headed by Ben Ulo, went to Pasay looking for Monroy, but
he could not be found. They decided to postpone the killing and agreed to watch Monroy's habitual
movements, taking turns in this observation day and night. In the morning of June 13th, Robles and

54
Scarface using Ben Ulo's jeep, went to Pasay and again reconnoitered in the vicinity of Monroy's place, but
they did not see him. They reported the negative results to Ben Ulo.
Then in the afternoon of June 15th, about two or three hours before the actual killing, and in furtherance of
their conspiracy, Ben Ulo and his "boys" Enriquez, Realista, Miray, Gonzales and Peping de Jesus,
gathered again, this time at the Happy Valley in Quezon City, and there finalized their plans. They agreed
to use three motor vehicles: two cars and an AC jeep, Ben Ulo enjoining them that should there be any
opposition or untoward incident, they should shoot it out. After everything had been set, the group
proceeded to Camp Murphy to get car No. 6 and to fetch Caparas. They went to Pasay in two cars, as
follows: Ben Ulo, Enriquez, Melencio, Caparas, Felix Tamayo in car No. 6, and Jose de Jesus, Gonzales,
Miray and Realista in a Plymouth car bearing plate No. P.I. 1176. On the other hand, and upon previous
understanding, Robles, Scarface and Hipolito Bonifacio went in an AC jeep directly from Tondo to Camp
Murphy where they were supposed to meet Ben Ulo, but upon finding that he and the "boys" were not
there, they proceeded to Pasay and parked their jeep near the corner of Harrison and David streets. It was
dark already. Car No. 6 and the Plymouth arrived later. Ben Ulo briefly asked Scarface whether Monroy
was there, and the latter answered affirmatively. Ben Ulo then gave hurried instructions to Gonzales,
Enriquez, De Jesus Scarface and Realista, after which he, attired in coat and tie, went back to car No. 6
and sped towards Manila.2
At least five men in the group were armed: Hipolito Bonifacio had a Thompson sub-machine gun; Robles
and Enriquez had a .45 caliber gun each; Scarface had another gun; and Jose de Jesus had a super .38
caliber automatic pistol. In addition, there were spare guns in the cars.
At the time Ben Ulo was giving last-minute instructions to his "boys", Manuel P. Monroy was unconcernedly
playing "mahjong" with his wife, Mario Bautista and Donato Baras at the ground floor of No. 18-C Gamboa
Apartments occupied by Paula Montes, Monroy's neighbor. These apartments were located inside a
compound and consist of twin buildings facing each other, separated by a wide blind alley or "pasillo", the
only entrance or exit being from David Street. The Montes apartment was well lighted with fluorescent
bulbs and the game could be seen from the door. It was then about 7:30 in the evening.
After Ben Ulo had left and pursuant to his instructions, Scarface, De Jesus, Gonzales, Enriquez and
Realista walked along David Street. Scarface who was supposed to be the triggerman, showed some
hesitation, so De Jesus3 entered the pasillo and went towards the apartment where Monroy was playing.
De Jesus tarried a while pretending to watch the game from the door, almost blocking the way, in such a
manner that when William Clemens, a neighbor, entered to deliver the cigarettes he had bought for one of
the players, he had to ask De Jesus to allow him to got in. When Clemens was already inside, De Jesus
suddenly fired three successive shots at Monroy who, clutching his belly; exclaimed, "Pinatira ako"
(Someone had me shot). Commotion ensued and De Jesus, gun in hand, retraced his steps towards
David, thence to Harrison, and then boarded a passing passenger jeep which was heading towards
Manila.
Alerted by the shots, Pablo Canlas and Jose Moratalla (a Quezon City policeman off-duty) who were
listening to another neighbor strumming a guitar at the entrance of the "pasillo", spotted and tried to chase
De Jesus but lost him.
Monroy was taken to the hospital where he soon died, and upon autopsy performed by Dr. Pedro Solis of
the NBI the following day, he was found to have received three gunshot wounds, one of which was fatal
(Exh. A-3).

Immediately after the shooting, Robles, Scarface and Bonifacio boarded their AC jeep and returned to
Tondo, while those in car No. 6 and in the Plymouth No. PI-1176 proceeded to the house of Adelaida
Reyes, Castelo's mistress, taking different routes. Meanwhile, gunman De Jesus alighted from the
passenger jeep at Taft Avenue near La Salle College, took a taxi, and headed also for Adelaida's place
where he found the two cars already there as well as Ben Ulo and the "boys". Later that night, they
disbanded and returned to their respective homes.
The Pasay Police soon started its investigation and Chief Antonio C. Amor requested the NBI (National
Bureau of Investigation) and the Manila Police to have a conference with him so as to coordinate police
work, as it was believed that the culprits were from Manila; and this request was confirmed by him in a
letter to Mayor Lacson (Exh. KK).
Castelo returned from Korea on June 26th. On hand to greet him in the airport were Ben Ulo and Melencio,
and a picture was taken of the occasion (Exh. RRR). The following morning, Ben Ulo and the "boys" were
again at Castelo's house. In a gay mood and fingering his bow tie, Castelo tapped Ben Ulo's shoulder and
said, "Mabuti wala na tayong iintindihin ngayon; pero, Ben, natitiyak mo kayang walang nakakita?" (Good,
now we have nothing to worry about; but, Ben, can you be sure nobody saw?) Ben retorted, "Wala; malinis
na malinis ang trabajo" (Nobody; the job was very neatly done.)
Pursuant to the request of Chief Amor of Panay, the Manila Police made its own investigation, and on June
26th, Scarface and Robles were arrested. At this, Ben Ulo's "boys" became so apprehensive and jittery
that he had to calm them down saying, "Hindi ba sinabi ko sa inyo na kaya ng matanda iyan, maski anong
asunto. Puede ba tayong iwanan ng matanda (Secretary Castelo) ay kasama siya diyan." (Didn't I tell you
already that the old man [Castelo] can take care of any case? Can the old man desert us when he is in it
himself?)
Scarface and Robles were later set free, but were under police surveillance.
Some days after, while Ben Ulo and the "boys" were hanging around Castelo's office at Camp Murphy, Ben
Ulo told Melencio, "Tila merong masamang nangyari. Babaliktad na si Scarface, pick apen natin.
Kailangan makausap ng matanda." (It seems that something went wrong. Scarface is about to turn around.
Let's pick him up. Its important that the old man talk to him.)
Consequently, in the evening of July 13th, Scarface found himself in the Shellborne Hotel with Ben Ulo,
Miray, Enriquez, Gonzales and De Jesus (Exh. JJJ). Castelo, who had a suite in the fifth floor, was also
there and knew that Scarface was with the "boys" in the second floor.
Mayor Lacson of Manila likewise knew that both Castelo and Scarface were in the Hotel that night. The
Mayor, accompanied by armed policemen, photographers and newspapermen (whom he had alerted
earlier in the afternoon promising them that something "big" would be coming) went to the Shellborne Hotel
at about eight o'clock that evening and posted himself and his men at the Ambassador Hotel nearby,
presumably waiting for some signal for them to rush to the Shellborne Hotel and take pictures of Castelo
and Scarface while talking and, if possible, get a tape recording of their conversation (Exhs. 57-A-Castelo
to 57-U-Castelo). Informed that Lacson and some thirty "armed hoodlums" were looking for him, Castelo
observed from his suite and noticed that really there were armed men around the Shellborne. Alarmed,
Castelo directed that some constabulary soldiers be sent to that hotel for his protection. (Remember, he
was Secretary of National Defense.) Inasmuch as the constabulary was slow in coming, Castelo directed
his confidential assistant to telephone Capt. Alejo, the Secretary's aide at Camp Murphy, to send Army
troops. Thirty enlisted men and two officers under Capt. Orestes Montano, "in full combat gear," were

55
dispatched posthaste to the Shellborne Hotel, riding in two weapons carriers, a scout car and a jeep. Capt.
Montano found Castelo in his suite "pale and jittery"; thereupon Castelo ordered the Captain to arrest
Mayor Lacson, but the Captain failed to meet the latter after looking for him in several places, including the
Mayor's house. Meantime, Col. Antonio Sayson, Deputy Chief of the Constabulary (who was also called by
Castelo), arrived with twelve men and two officers at ten o'clock that evening. Sayson was likewise ordered
by Castelo to arrest Mayor Lacson and to provide security for Scarface in the second floor of the hotel. Col.
Sayson went down, saw the Mayor and informed the latter that he was being arrested upon orders of the
Secretary. Asked whether the Colonel had a warrant of arrest, Sayson answered in the negative;
whereupon Mayor Lacson said that if the Colonel would insist in arresting him, he would have to do it over
Lacson's dead body. Sensing that the situation was tense, there being two opposing armed groups
standing by, Sayson desisted and reported back to Castelo. Then Generals Vargas and Selga, Cols.
Velarde and Cabal arrived. Castelo at last lifted his order, and the incident was closed. Upon suggestion of
Capt. Gayares, Scarface was taken to Camp Crame for better security instead of leaving him in the hotel
under the Captain's protection (Exhs. BBBB, BBBB-2, BBBB-3, BBBB-4, BBBB-5, BBBB-6, BBBB-7,
BBBB-11).
One month after the Shellborne incident, Castelo went to the United States, but before his departure, he
told Ben Ulo in the presence of Melencio, "Ben, ang mga bata, ikaw ang bahala sa kanila. Siguruhin mo
lang ni walang magsasalita at delikado tayo" (Ben, take care of the boys be sure nobody talks as we would
be in danger).
On October 20, 1953, three months after the Shellborne incident, Robles and Scarface were called to Ben
Ulo's house where the latter banded a super .38 caliber pistol (Exh. G) and a magazine to Scarface, saying
"Iyan daw ang ginamit pagpatay kay Monroy " (That's said to be the one used in killing Monroy). Scarface
and Robles left. Ten minutes later, both went to Robles' house and there Scarface wondered where they
could hide the gun and the bullets. Scarface then dismantled the gun; the handle and the bullets (Exhs. G3 to G-2-L; G-3 to G-3-14) were wrapped by Scarface. Both bundles were hidden by them in two places:
one was buried in the grounds seven inches deep, under the "papag" bed in the house of Robles' aunt,
and the other (Exhs. H-6, H-7, H-8, and H-9) in the house of Robles' sister.
Five days later, Scarface was found dead, with multiple stab wounds. His death still remains a mystery.
It appears that the day after Monroy's murder, Francisco Villa, an agent of the NBI, was assigned to make
the corresponding investigation. He contacted Clemens and thru him, ascertained the identity of the killer
Peping de Jesus. Having known the latter's connection with Ben Ulo and his "boys", the authorities
cautious y proceeded; and having been informed by Floring Cabanatuan that Pile (Felix Miray) was
probably the least tough of the gang, they took the latter into custody of the (NBI) on December 18th for
questioning. He confessed, and his narration was tape-recorded and later reduced to writing in five pages
(Exh. 2). He did not sign it until he obtained the assurance from the NBI that he would be given adequate
protection. In this statement, Miray named Ben Ulo, Peping de Jesus, Domingo Gonzales, Robles, Pedro
Enriquez, Salvador Realista and a certain Rading as among the conspirators. This revelation resulted in
several apprehensions. Enriquez was arrested on December 24, 1953. He confessed, and his statement
was tape-recorded and later written and subscribed to, before Atty. Arturo Xavier of the NBI. .
Domingo Gonzales was arrested on the 28th, and his narration was likewise tape-recorded, then reduced
to writing. During said tape-recording, Miray was listening to it in another room, unknown to Gonzales
and Miray assured the NBI that what Gonzales had said was all true. In his statement Exh. BB, Gonzales
linked Enriquez, De Jesus, Realista, Scarface, Tamayo and Rading to the murder and conspiracy.
Gonzales even made corrections with his initials, on pages 2 and 4 of his written statement.

The NBI on December 30th, picked up Ben Ulo; but he denied everything, and refused to make any
declaration.
The Manila Police, on its part arrested on December 29, Peping de Jesus who executed statement Exhibit
EE describing how he shot Monroy, and the conspiracy with Ben Ulo, Enriquez, Realista, Miray, Gonzales
and Melencio in the manner already stated.
Hipolito Bonifacio was likewise taken into custody by the Manila Police; and he also made the confession
Exh. DD naming Ben Ulo, De Jesus, Domingo Gonzales, Scarface and Robles.
Rogelio Robles was then apprehended and questioned. He confessed too; and upon his indication, the
police recovered the gun parts hidden by him as well as the bullets, which were turned over to the NBI and
then to Major Cabe, the ballistics expert of the Armed Forces. The three slugs (Exhs. K, K-1 and K-2) as
well as the three empty shells (Exhs. J, J-1 and J-2) found on the night of June 15th by Patrolman Matias
Soriano of the Pasay Police on duty at Harrison at the time of the shooting, were likewise turned over to
Major Cabe who, upon laboratory tests, concluded that the three slugs came from the three empty shells
which, in turn, were fired from that gun (Exh. G).
Miray, Gonzales, Enriquez and Ben Ulo were turned over by the NBI to the Manila Police where, except
Ben Ulo, they again made confessions (Exhs. GG, CC and FF).
Augusto Melencio voluntarily surrendered to the police. Then on May 24th and 26th, 1954 (Exhs. JJ and
HH-1) while out on bail and when the case was already being heard, he made the revelations later to be
quoted herein.
All these statements or confessions 3a relate, with some variations as to minor details, the story of the
assassination, the motives thereof and the names of the raiding parties.
DEFENSES: Appellants set up the defense of alibi, even as they claimed that the statements they gave to
the NBI and the Manila Police had been extorted from them by means of violence, and that the contents
thereof were not true. Their alibi consisted in the following:
Jose de Jesus. The night Monroy was killed (June 15, 1953), he was playing "cuajo" in the house of
Rizalina de la Rosa in Calle Asuncion, Manila; he started playing from about two or three o'clock in the
afternoon up to five o'clock in the following morning, having taken his supper at Rizalina's house.
Pedro Enriquez. After receiving his salary at three o'clock in the afternoon of June 15th, he went to La
Loma where he took a siesta with his common-law wife Andrea Marifosque at about dusk, one Remedios
Tagle came and had supper with them; and thereafter, he went to bed and never left the house that night.
Felix Miray. He stayed the whole day, June 15th, at home at 707 Pablo Carreon, Manila, nursing a
toothache. .
Domingo Gonzales. After taking a siesta on June 15th, he trained his fighting cock with other roosters
until he was called for supper; then he read comics and retired at about eight or nine o'clock.

56
Hipolito Bonifacio. He was in his house at 1247 Interior 9, Juan Luna, on June 15th, because his wife
had a severe attack of asthma, which lasted up to June 17th; and between six and eight o'clock on the
night of June 15th, he was massaging his wife's back on account of her ailment.

asked Ben Ulo in the presence of Melencio how was the "job" done and if anybody saw it done; that it was
likewise false that before he left for the United States in August, he told Ben Ulo to take care of the "boys"
and see to it that they do not talk.

Ben Ulo. He escorted Mrs. Castelo from six o'clock in the evening of June 15th, to a party at the Jai-Alai
with friends, such as Mrs. Gianzon, Mrs. Leuterio, and others, and stayed there until early hours in the
morning when he conducted Mrs. Castelo home.

DISCUSSION: We shall first take up the case of the six defendants against whom the People recommends
conviction. Afterwards we shall consider that of both Melencio and Castelo, whose acquittal the Solicitor
General recommends.

He denied all the imputations of Robles, admitting, however, that he was not forced to make a statement
nor subjected to any physical violence by the police, although he was somehow threatened; and that
Lacson had offered to give him P10,000.00 ff he would turn witness against Castelo, which offer he
refused.

The defense of alibi set up by Miray, Gonzales, Enriquez, Hipolito and De Jesus deserves little attention for
its flimsiness, bearing in mind that Manila is just 15 to 20 minutes drive to the scene of the crime. Besides,
it contradicts their individual confessions wherein each mutually names one another as his partner in
crime, each describing his own participation therein, and each corroboration or supplementing one
another's narration of material facts, and all mentioning Ben Ulo as their leader. Those confessions unfurl a
picture of conspiracy amongst themselves and other persons to snuff out the life of Monroy, De Jesus
actually firing the fatal shots and the others lending him support while posted at strategic places. De Jesus
was positively identified by William Clemens, a disinterested witness, and by Canlas who singled him out
in a police line-up.

Augusto Melencio. In the afternoon of June 15th, he went to Cabanatuan City with Major Vina of the
Quezon City Police on a robbery case which they were investigating; that they rode in a jeep driven by
Patrolman Maximo Francisco, arriving there at about seven o'clock; that they returned from Cabanatuan
the following morning, June 16th. He further said that on January 5, 1954, after learning from the
newspapers that he was included in the information, he voluntarily surrendered to Mayor Lacson and that
his statements Exhs. JJ and HH-1 were not given by him voluntarily, as the contents thereof were
merely dictated by Fiscal Andres Reyes to stenographer Miss Paredes; and that he was merely cajoled
into making said statements.
Oscar Castelo. He was in Korea on June 15th, having left Manila on the 8th and returned on the 26th.
He denies having told Ben Ulo, on the last week of May, in the presence of Robles and Scarface, to kill
Monroy because, having been a fiscal and a judge, he could not have committed the gross indiscretion of
telling such serious matter in the presence of strangers, as Scarface and Robles, whom he did not know;
adding that if he really ever wanted to do away with anybody, he could have just told his brother to shoot
the victim without the need of anybody else's help, because his brother is a sharpshooter of note and is a
worthy representative of the Philippines in international shooting competitions; besides, his catholicity does
not permit him to entertain such a wish to kill. He further said that it would have been better for him to have
Monroy alive because it was Monroy who could precisely vindicate him from the accusations of Senator
Recto; because, after having testified before the Blue Ribbon Committee, Monroy, accompanied by his
cousin, Atty. Cancio purposely came to see him on May 21st, wept, embraced him, and asked for
forgiveness for having so testified; that be and Monroy made up since then, Monroy promising that at
some subsequent time, he would retract what he had testified before the Committee and would issue a
statement to that effect in the press.
Castelo likewise denied the imputation of Robles that on June 1st, he instructed Ben Ulo, in the presence
of witnesses Robles and Scarface, that Monroy be killed after he had left for Korea; he swore that this is a
lie because he did not go to his office that morning as he had a cruise on board a navy vessel around
Manila Bay with prominent persons such as Commodore and Mrs. Francisco, Clarita Tan Kiang, Fiscal
Milagros German, Mr. and Mrs. Gianzon and others, and that after the cruise he attended a BZSCOM
meeting then went to the Philippine National Bank at the Escolta to act on some important papers, after
which he went to V. Luna Hospital for dental treatment.
He similarly branded as false the insinuation in Melencio's written statement that before he boarded the
plane for Korea he (Castelo) called Ben Ulo and Melencio aside and reminded them that Monroy should be
killed before his return. He also denied another Melencio's insinuation that after his arrival from Korea he

Their claim that their confessions were extorted by means of force and violence may not be taken at its
face value. Ben Ulo himself refutes them on this score when he testified that he was never subjected to
any indemnity; on the contrary, he stated that he was even offered P10,000.00 by Mayor Lacson if he
would testify against Castelo which he rejected. He even declined to make any statement before the
NBI and the Manila Police and was not bothered at all. If torture were the standard police practice in
obtaining statements, it surely strikes us why Ben Ulo, the acknowledged leader of the group, should have
been spared from such ordeal. We are, therefore, reluctant to believe that these five appellants had no
other choice but to make statements. They could have refused, same as Ben Ulo. Moreover, it is hard to
believe that the NBI and the Manila Police could have added incidental details to said confessions without
the declarants having furnished them themselves. 4
With respect to Ben Ulo, the positive testimony of Robles conclusively shows that this appellant was the
active leader of the plot, from its inception down to its actual accomplishment. It was he who broached the
subject of killing Monroy to Robles and Scarface, and introduced his "boys" to Castelo, who immediately
confirmed that "Monroy must be killed"; it was Ben Ulo who planned the whole strategy of the rub-out; and
it was he who delivered the lethal gun Exh. G to Scarface and Robles for them to hide. The testimony of
Robles is amply corroborated not only by the confessions of Miray, De Jesus, Bonifacio, Enriquez,
Gonzales and Melencio all of whom point to Ulo as the leader and moving spirit but also by the mass of
evidence on record, that leaves no room for doubting his guilt. To cap it all, his flight while under detention
betrayed a guilty conscience.5 Note further, that as proved by the prosecution, he left the scene of the
crime at about 6 p.m. already well-dressed. So he could have gone from there directly to accompany Mrs.
Castelo, as he claimed to lay the basis for his alibi.
Elaborating on the contention that the interlocking confessions of De Jesus, Enriquez, Gonzales, Miray
and Hipolito had been extracted thru violence, their attorney de-officio calls attention to the several days
they had been under detention before they signed the corresponding confessions (before the police). But it
is of record that Enriquez was arrested on December 24, 1953, by the National Bureau of Investigation and
on the same day, confessed his participation; and that Domingo Gonzales was taken into custody by the
NBI on December 28, 1953, and on the same day, he too confessed. This point, besides refuting the
defense' contention that it was Mayor Lacson and the Manila Police who had framed up this prosecution
and extracted the confessions, lends special credence to the People's theory, because the NBI operates
under the Department of Justice, and it is very unlikely that the officials of that Bureau would lend

57
themselves to any moves to frame up their boss.6 In fact, and this is significant, the original information did
not include Castelo.

Q. Where did you finish your high school?

A. In a private college run by catholic priests.

At this juncture, it may be stated that Mayor Lacson's participation and interest was due to the request for
help from the Pasay Police, and partly perhaps, to his natural apprehension that the police officers might
be slow or reluctant to pursue the "lead" implicating an official of the highest level, a member of the
Cabinet holding two pivotal portfolios at that.
But not all confessions are attacked as having been obtained thru violence. Melencio never claimed that
the police laid violent hands on him.
Melencio. He merely said he confessed because he was afraid, yet he made his confession while he
was at liberty under bail. And many details could not have appeared therein unless he had given them out
himself voluntarily.7 This confession has a very peculiar value, because he is the nephew of Castelo and
was his confidential agent at the time. Here are pertinent parts thereof:

Q. If I am not mistaken Mr. Melencio, you are related to Mr. Oscar Castelo, one of the
accused in this case, are you not?
A. Yes, sir, he is the cousin of my father.
Q. How do you call him?
A. I call him Tio Oscar.
Q. And in spite of that you are coming to me and are willing to testify against him in the trial?

Q. Mr. Melencio, why are you here now before me?

A. Yes, sir.

A. To give information that I wish to be a state witness in the case of "PPI vs. Castelo, et
al." wherein I am one of the accused.

Q. What is your motive?

Q. Do you realize what you are doing?

A. Because I want to have a clear conscience. Since the very beginning of this case I have
been thinking to testify in this case in favor of the prosecution but thinking that Oscar Castelo is
my relative, I was ashamed to testify against him and I feared Ben Ulo.

A. Yes, sir.
xxx

xxx

xxx

Q. Have you studied this matter seriously?

A. Yes, sir.

Q. One of the reasons why you did not testify in the very beginning is because you were
afraid of Ben Ulo. Who is this Ben Ulo?

Q. Have you consulted your father and mother?

A. He is one of the accused in this case.

A. Yes, sir. They told me it is up to me.

Q. Why are you afraid of him?

Q. Have you consulted your wife?

A. Because I have known him as a killer.

A. She told me that if I knew something I should tell it.

Q. Did he threaten you or intimidate you?

Q. Have you been promised any reward, job or money for you to testify in this case as state
witness?

A. I think so, since the very beginning of my assignment.

Q. How did he threaten you?

A. No, sir.
A. He was telling me that he will liquidate me and my family if I testify against them.
Q. Do you have any criminal record?
xxx
A. None, sir. ... .

xxx

xxx

58
Q. At the time that Robles was testifying you were one of the accused present were you not?

Q. You said that Ben Mendoza also escorted Secretary Castelo, do you know what was the
relationship between Ben Mendoza and Oscar Castelo.

A. Yes, sir.
A. He is the personal bodyguard of the secretary.
Q. After Robles testified, why did you not think of testifying?
Q. How do you know that he was the personal bodyguard?
A. I had been thinking of my uncle, ex-secretary Oscar Castelo. 1wph1.t
Q. I understand that you were working before in the Office of the National Defense?

A. I know it because I have seen him day and night with the secretary and he is the one who
gives order to some of the escorts.
xxx

A. In the office of the Secretary, in the National Defense.

xxx

xxx

Q. When was that?

Q. Do you know Rogelio Robles?

A. I started working in April, 1953.

A. Yes, because I saw him with Ben Mendoza in the residence of the Secretary of National
Defense.

Q. What was your position in the office?

Q. When was that you saw him for the first time?

A. Confidential Agent.

A. In the latter part of May?

xxx

xxx

xxx

A. Up to when did you stay in the National Defense as confidential agent?

Q. In the middle part of July, 1953.
A. Who was the Secretary of the National Defense at that time when you started as
confidential agent?

xxx

xxx

xxx

Q. What was Robles doing in the house of Castelo during the latter part of May?
A. When I saw Rogelio Robles there in the house of Castelo, I can remember that I asked
the guard in the house. He told me that is the companion of Ben. When I learned that, I asked
Miray who is that small fellow and Miray answered: "Matigas na bata ni Ben yan" and since then
I saw him once in a while going with us to escort the secretary.

Q. Oscar Tombo Castelo.

xxx

xxx

xxx

A. You stated that you chose to be an escort of Oscar Castelo, what did you do?

Q. Did you hear about the name of Manuel Monroy again?

Q. We used to go everywhere he went.

A. Yes, sir, the latter part of May.

Q. When you say, we, were you accompanied by other people?

Q. On what occasion?

A. Yes, sir, Ben Mendoza, Pedro Enriquez, Jose de Jesus, Domingo Gonzales, Salvador
Realista, Alfredo de Leon, Emeterio Espiritu, Felix Miray and Totoy Reyes. Several times I have
seen Rogelio Robles join us.

A. When we were in Camp Murphy. Ben Mendoza told me to go with him in company of
Gonzales and Felix Miray to survey the place where Manuel Monroy lives.

xxx

xxx

xxx

Q. Did you ask Ben Mendoza why be wanted to survey the place?
A. Certainly, sir, he told me that the Secretary desired that Monroy be silenced.

59
Q. What was your reaction when Ben Mendoza told you that?
A. I felt a little nervous.
xxx

xxx

xxx

Q. Do you know the reason why Castelo wanted to silence Monroy?

A. We waited for the Secretary to come because he was dressing when we arrived. We were
then in the sala of the house when he came down. He was very happy, and holding his bow tie
he tapped the shoulder of Ben and said Mabuti, wala na tayong intindihin ngayon, pero Ben,
natitiyak mo kaya walang nakakita? and Ben said, "Wala, malinis na malinis ang trabajo."
Q. What was the reaction of Ben Ulo when he learned that Scarface was arrested?
A. Ben Ulo further stated: "Kaylangan maareglo ito baka bumaglitad ito".

A. Because Ben Ulo told me that Castelo was double crossed by Monroy, they tried all their
efforts to prevent him from testifying and in spite of that he testified.
Q. Now, did you verify or later on did you find out if it was really the desire of Castelo to
silence Monroy?
A. I cannot call it verify because when Castelo was leaving for Korea, when we escorted him
on the plane, he called Ben and me in a place where we will not be heard by anybody and he
told us in a hurried manner, he told Ben in Tagalog in my presence: "Huwag lang hindi ninyo
mapatay si Monroy bago ako dumating", and then the reply of Ben was, "Huwag kang magalala, halos patay na siya".
Q. What were you doing there near Castelo?
A. We are leading the Secretary to the plane. I was even carrying his portfolio.
Q. Did you see him (Castelo) after he arrived from Korea ?
A. Yes, sir.
xxx

xxx

xxx

Q. Who was with you when you saw him?

A. The gang but we left them outside and we went inside.
Q. Who was "we"?
A. Ben Ulo and myself.

xxx

xxx

xxx

Q. What happened?
A. While we were conversing, Ben Ulo came out excited from the Office, of the Secretary
and he called me personally and told me: "Tila merong masamang nangyari. Babaligtad na si
Scarface. Pick apen natin. Kaylangan makausap ng matanda."
In connection with this confession, the Solicitor General's Office appears to have taken a peculiar stand. It
says "we are not prepared to admit as true everything stated" in it, because he was "wheedled" by the
Police Department to testify for the prosecution. Wheedled means coaxed by soft words, flattery, etc. We
do not think such "wheedling" could invalidate a confession. And then, that prosecuting arm of the
Government would seem to reject the confession in so far as it affects Castelo and Melencio, but would
apparently consider it as against the other co-defendants. What is the difference? At least, in so far as
Melencio was concerned, was it not a confession that interlocked with the confessions of the other
defendants and must accordingly be considered with such confessions? Specially because unlike the other
defendants, Melencio never claimed to have been physically harmed by the Police, and, furthermore, was
out on bail when he signed it.
And there is one decisive consideration. Unlike the other confessions of the accused (De Jesus, Gonzales,
Miray, Enriquez, and Bonifacio), which were merely "subscribed and sworn to" before Fiscal Andres Reyes,
the confession of Melencio contains this certification signed by two women-stenographers:8
We hereby certify that this is a true and correct transcription of the stenographic notes taken during the
preliminary investigation conducted on May 26, 1954 by Asst. Fiscal Andres Reyes.
(Sgd.) JULIETA HERRERA
Clk-Stenographer
(Sgd.) ESTER P. PAREDES
Clk-Stenographer

Q. Why did you not bring the gang?

A. They just stayed outside.
Q. What did you do then?

Which certification shows the answer given by Melencio had been given before said two women not the
police and taken down stenographically by them, in an ordinary investigation by the Fiscal.
All of which means: the confession of Melencio like those of De Jesus, et al., must be accorded full
evidentiary value.

60
It must be observed that said confessions were presented in a joint trial of all the accused.
Coming now to Castelo, the only direct evidence9 against him is the testimony of Robles, who swore: (1)
that when he and Scarface were introduced by Ben Ulo one morning in May, 1953, Castelo told the latter in
the presence of both Robles and Scarface that there was NEED to kill Monroy; and (2) that on June 1st
Castelo again suggested to Ben Ulo, Scarface and witness that Monroy should be killed AFTER he had left
for Korea. In addition to this, Melencio mentions in his confession (3) that before Castelo boarded the
plane for Korea on June 8th, called him and Ben Ulo aside, and urged that Monroy be killed BEFORE his
return; (4) that a day after his return on June 26th, Castelo, in a gay mood patted Ben Ulo's back to say,
"Good, we have nothing to worry about; but, Ben are you sure nobody saw?" to which Ben Ulo replied,
"Nobody; it was a clean job." and (5) that before Castelo left for the United States in August, Castelo
admonished Ben Ulo in the presence of Melencio, "Ben, take care of the boys; be sure nobody otherwise,
we would be in bad fix."
However, Castelo's counsel and the Solicitor General strenuously insist that the lone testimony of Robles,
which should be received with caution, is insufficient to warrant conviction; that Melencio's confession is
utterly incompetent as against Castelo, for being doubly hearsay, to say nothing of Melencio's repudiation
thereof; and that considering Robles' recantation, no proof remains in the record against Castelo who, a
fortiori must be acquitted. This, then, requires examination of the testimony of Robles in both the original
and the new trials, to determine which of his conflicting stories reflected the true facts.
We have carefully examined his lengthy testimony during the original trial and have come to the conclusion
that the facts narrated therein, although quite unusual, are not improbable considering the situation as a
whole. Noteworthy it is that when subjected for several weeks to a searching and unrelenting crossexamination by several defense lawyers, this witness stood firm and steadfast in his assertions and
answered his questioners with straightforward alacrity, and apparent spontaneity. 9a On the other hand, his
recantation at the new trial, alleging mistreatment and coercion, has been so completely rebutted by
Feliciano Lazaro, Francisco Espiritu, Enrique A. Morales and Adolfo Arguelles of the Manila Police, as well
as by Mayor Lacson, Fiscal Andres Reyes and newspaperman Primitive Mijares, that we do not hesitate to
hold it to be a mere afterthought, designed to rescue his former co-defendants and to deliver Castelo from
the hands of the law. 9b This, apart from our wariness and skepticism in matters of retraction of prosecution
witnesses made after a judgment of conviction. (Cf. U.S. vs. Valdez, 30 Phil. 293; U.S. vs. Cu Unjieng, 61
Phil. 906; U.S. vs. Dacir, 26 Phil. 503.)
Furthermore, the testimony of Robles linking Castelo with the conspiracy does not stand alone, as claimed,
for it finds adequate support, and confirmation not only in the collective confessions of Miray, De Jesus,
Bonifacio, Gonzales, Enriquez, and Melencio and the finding of the gun parts in his possession, but in the
totality of the evidence. These confessions are so intimately interwoven that it is hard, if not impossible, to
draw a line with a view to sifting the individually admitted facts. In the absence of collusion among the
declarants, their confessions should be read together, in order to form a complete picture of the whole
situation, and to consider them collectively merely as corroborative and/or confirmatory of the evidence
independent therefrom. Thus, it is not improbable that Castelo and Ben Ulo had previously discussed
between themselves the elimination of Monroy before Ben Ulo ever broached the subject to Scarface and
Robles one morning. Neither is it improbable that when Ben Ulo introduced them later that same morning
as his "boys", Castelo must have understood that they could be trusted; and so he was outspoken in
suggesting Monroy's destruction, either, perhaps, to impress upon the "boys" that Ben Ulo was not joking,
or to show that he, Castelo, was backing them up to the hilt with his double-barreled power as head of both
the Justice Department and the Armed Forces of the country.

It is unbelievable, the defense contends, that Castelo should be so imprudent as to speak out his
liquidation order to Mendoza in the presence of strangers. In the light of the confessions and the testimony,
there are at least two additional reasons to explain this apparent "imprudence". First, he was issuing
orders to a loyal subordinate or to would be subordinates; and the Shellborne incident shows him to be
capable of carelessness if not naughtiness when he directed a colonel to arrest the Mayor of the City
of Manila without any judicial warrant10; Second, having been a fiscal, he assumed nobody would believe
any witness who would testify to such recklessness of a Cabinet member. And third, his experience
foresaw an airtight alibi should Monroy be killedwhile he was in Korea.
At this point, this thought occurs to us: if this prosecution was a mere concoction of Mayor Lacson and his
police as defense insinuates how did they know that on June 1 (date when he made the order to kill
Monroy during his absence), he had already made up his mind to proceed to Korea? (Castelo, himself,
during the trial admitted that before June, he had made plans to travel abroad.) And why should the
operatives of the NBI subordinates of Castelo cooperate in getting confessions reflecting against
their boss. Not to mention the three fiscals also under Castelo who vigorously handled the
prosecution. .
Castelo argued that if he had wished to eliminate Monroy, he could have asked his brother who was a
sharpshooter instead of employing so many accomplices. Yet it is not certain that his brother would be
willing to expose his own neck. And this mode of reasoning does Castelo no credit, because besides
assuming that his brother would do it, it reveals him as a man who would not hesitate to endanger the life
or liberty of his own brother to further his ends.
The defense insists that contrary to the prosecution's theory, Castelo did not want Monroy to die; because
the latter had voluntarily promised to retract his testimony given before the Blue Ribbon Committee. But
knowing him as a "blackmailer" and double-crosser11, Castelo had reasons to distrust such promise,
supposing it was made; and so, partly in revenge and partly to silence him forever, Castelo chose violent
death having as he had, hardy henchmen to bring it about. The Blue Ribbon investigation could only
produce removal from office. But disbarment will scuttle his means of support; and a rap for bribery could
lead to prison. So "kailangan mapatay si Monroy," as he said.
The Solicitor General regards Ben Ulo as the central figure in the conspiracy, sans Castelo, and suggests
that he killed Monroy merely to curry Castelo's favor. 11a This view is highly speculative, for it is not likely
that one would take another man's life, place his head on a silver platter and give it as a present to his
master merely for a pat in the back. The evidence shows that none of Castelo's co-appellants had any
motive for desiring Monroy's demise. It was only Castelo, who had such motive. Monroy, whom he knew as
a man "without scruples and capable of swindling his own mother," had testified in the Senate imputing
bribery to him. Castelo's reputation and career, which were being trampled upon by a mere "police
character", had to be protected; so that even though Monroy had already testified, there was still time to
avert any further harm, i.e., disbarment and jail. And so, liquidation of Monroy appeared to be the only
solution. And his trip to Korea offered a favorable coincidence.
His agents acted swiftly and surely. And as instructed, they kept their mouths shut. Even the MPD which
was in the light track when it arrested Robles and Scarface ten days after the crime failed in its efforts
because of the stubborn silence of both; and release them. Robles later explained that he did not confess
anything at that time because he and Scarface enjoyed a certain degree of immunity, Ben Ulo being still
"strong" and Castelo powerful. So the MPD had to release them. 12 This is an indication that contrary to
defense's theory the police were not bent on obtaining confessions, by hook or by crook.

61
But truth will always out. The Shellborne incident occurring three weeks thereafter marked the beginning of
the revelation. It confirmed that Castelo and Scarface were not, after all, strangers to each other. The MPD
watching Scarface's movements must have known when he was actually "picked up" 13 and brought to the
Shellborne Hotel where Castelo had his suite. This accounts for Mayor Lacson's leading the press,
photographers and policemen to the Shellborne in order to take pictures of Castelo and Scarface together
and/or to tape-record their conversation. Given his guilty connection with Scarface, Castelo's reaction to
this could not be other than fright. So he had to summon the Constabulary and the Army to come to his
aid, fearing that his complicity with the Monroy murder would at last be uncovered. He was "pale and
jittery" (quoting Captain Montano) and, brushing aside his knowledge of the law and forgetting that he bad
been a fiscal and a judge, he ordered, without warrant, the arrest of Lacson, only to be frustrated by the
Mayor's presence of mind. Melencio's Confession furnishes a very plausible explanation why Scarface was
in the hotel; he stated that Ben Ulo had told him that they would pick up Scarface for confrontation with the
old man (Castelo) because Scarface was about to spill the beans (babaligtad). Castelo must have been
apprised of this, and thus his reaction and pronounced interest in keeping Scarface out of the reach of the
police 14 conduct which is certainly incompatible with his innocence. And a few weeks later, the potential
squealer was killed mysteriously; and, what a coincidence while Castelo was abroad again.
CONCLUSION: To summarize, the following sufficiently show, beyond reasonable doubt, the guilt of all the
appellants:
Bienvenido Mendoza. All the confessions point to him as the mastermind, directing his "boys" in the
slaying expedition He in turn had received orders from Castelo: Rogelio Robles so declared in court. There
is no doubt, he was the trusted bodyguard of Castelo-and a known killer.
Pedro Enriquez, Hipolito Bonifacio, Jose de Jesus, Domingo Gonzales and Felix Miray. Their
confessions, wherein admitting their own participation in the crime, they indicated the other members of
the liquidating squad. They were all pointed out at the trial by Rogelio Robles. Jose de Jesus shot
Monroy15, while the others were located at strategic places nearby ready to shoot it out if necessary and/or
to furnish means of retreat. Felix Miray drove one of the cars that carried the group to David Street, Pasay.
At that time, Gonzales, Enriquez, Robles, Melencio and De Jesus were special agents of the Department
of National Defense (recommended by Ben Ulo, his "boys"). And shortly after the death of Monroy,
Bonifacio was appointed agent too by Castelo naturally.
De Jesus as the triggerman, was seen by William Clemens and by Canlas, both of whom identified him in
court. And Pedro Enriquez' confession, corroborated their assertions.
Augusto Melencio. His confession, parts of which have been transcribed above. The testimony of
Robles linking him with the liquidation squad. The confessions of his co-accused describing his
participation. .
Oscar Castelo. His desire and interest to eliminate Monroy. The testimony of Robles as to his orders to
kill. The confession of Melencio as to such orders too. He had subservient bodyguards or agents to do his
bidding. The confessions of such agents. On top of all this, his conduct at the Shellborne hotel revealed his
culpable connection with the assassination plot. In fine, the case of the People is so strong against him,
that it would be unjust to set him free and yet imprison his seven subordinates who merely carried out his
commands. .
Motion for New Trial. There is pending here a motion for new trial, for the purpose of proving that others
killed Monroy. The Solicitor General recommending conviction of six appellants, impliedly disagrees with

the motion. So, given our findings, and our rulings in the matter, such motion is denied. (Cf. People vs.
Hernandez, May 23, 1952, L-3391; People vs. Buluran, May 24, 1954, L-5849; People vs. Manadi, 52 Off.
Gaz. 2010.) .
JUDGMENT: WHEREFORE, the conviction for murder qualified by premeditation all the herein
accused-appellants is affirmed. There are aggravating circumstances, like nighttime, aid of armed men,
etc.; but for lack of sufficient votes, they are all sentenced to life-imprisonment and to indemnify the heirs of
Monroy, jointly and severally, in the sum of six thousand pesos (P6,000.00), and to pay the costs. So
ordered.
Bengzon, C.J., Bautista Angelo, Labrador, Reyes, J.B.L., Barrera, Paredes, Dizon, Regala and Makalintal,
JJ., concur.
Padilla, and Concepcion, JJ., took no part.

62
G.R. No. L-32996 August 21, 1974
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
WENDELINO AMORES, accused-appellant.
Office of the Solicitor General Estelito P. Mendoza, Assistant Solicitor General Hector C. Fule and Solicitor
Jose F. Racela Jr. for plaintiff-appellee.
Elpidio D. Unto for accused-appellant.

AQUINO, J.:p
This is a rape case. The prosecution's evidence shows that at about nine o'clock in the morning of July 12,
1966 Petronila Baligasa, fourteen years old, and her half-brother, Julito Santillan, eleven years old, both
orphans, were in the farm of Sedronico Bantug located at Barrio Bungao, Valencia, Oriental Negros. They
had been directed by their grandmother, Valentina Sarmiento, to gather cornstalks (kumpay) in that farm.
Bantug is related to Petronila.
While they were engaged in that task, Wendelino Amores and Proculo Inquig (eighteen and sixteen years
old, respectively) appeared at the scene. Petronila had known Amores for a long time. His house was not
far from her residence. They resided in the same barrio. Without any preliminaries, Amores held Petronila's
arm. She extricated herself from his grasp and ran away. Amores chased her and overtook her when she
was forced to stop in order to remove a thorn which had pricked her left foot.
Upon overtaking her, Amores seized her hands, removed her panties (Exh. D), pulled her legs, pushed her
to the ground, unbottoned his pants, placed himself on top of her and succeeded in having carnal
knowledge of her.
While Amores was abusing Petronila, she repeatedly shouted for help and struggled to free herself from
his clutches by scratching, boxing and kicking him. She was unsuccessful. Amores' superior strength
frustrated her efforts. After the assault, she went home and cried. Her grandmother was not in the house.
Her brother, Julito, who witnessed the ravishment, could not do anything. He ran away after the act was
consummated. Thinking like a child, he feared that Amores might also "wrestle" with him.

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION

Petronila did not reveal at once to her grandmother what Amores had done because she was afraid to do
so. She disclosed the outrage to the old woman five days thereafter. So, on July 17, 1966, she was
brought to the office of Doctor Severiano M. Kho, the Municipal Health Officer, who examined her and
certified to the following findings:
1. Abrasion, slight right and left legs.
2. Superficial, punctured wound, left foot.
3. External examination of the vulva showed no external injury. Hymen not intact.

63
4. On internal examination, the vaginal canal admits one finger easily. The small size
vaginal speculum admits without difficulty (sic).
5. Smear taken from the posterior wall of vaginal fornix is negative for spermatozoa.
(Exh. B).
Doctor Kho declared that Petronila's hymen was not intact because it was ruptured possibly by a male
organ. That possibility was confirmed by the fact that her vaginal canal admits the entrance of one finger.
Doctor Kho explained that no spermatozoa was found in the victim's vagina because the sperm cells would
disintegrate or deteriorate five days after coition. Although an examination within three days after
intercourse may reveal the presence of spermatozoa, their absence does not necessarily mean that the
subject of the examination has not had any sexual intercourse. In rape the slightest penetration of the
female organ consummates the crime (People vs. Selfaison, 110 Phil. 839, 843).
The incident was reported on July 18, 1966 to the police, the Mayor and the Municipal Judge. They did not
take any action. There were efforts to settle the case amicably (6, 7, 32 and 33 tsn). Nearly a month after
the incident, Petronila wrote a letter-complaint about the rape to the Provincial Fiscal (Exh. A). He
conducted a preliminary investigation. On October 11, 1967 Petronila's verified complaint for rape was filed
in the Court of First Instance of Negros Oriental.
After trial, the lower court rendered a judgment convicting Amores of rape, sentencing him to an
indeterminate penalty of "eighteen (18) years and one (1) day of reclusion temporal, as minimum,
to reclusion perpetua, as maximum" and ordering him to pay Petronila an indemnity of P5,000 "as moral
damages" (Criminal Case No. 8336). Amores appealed to the Court of Appeals which transmitted the
records to this Court.

Appellant's counsel (The Mayor of Valencia), in his fourth assignment of error, complains that the trial court
did not allow him to present a supposed affidavit of desistance. That gripe is unfounded. The transcript and
the record do not show that the defense ever tried to offer in evidence such an affidavit. The defense
counsel cross-examined the complainant, and interrogated his witness, Emiteria Amores, on the alleged
affidavit but, curiously enough, he did not produce that document and did not mark it as an exhibit. After
Emiteria Amores had testified, he manifested that he was resting his case. He did not offer any
documentary evidence.
Annex 1 of his brief is a carbon copy of an affidavit of retraction in English dated July 28, 1966, supposedly
signed by Petronila and sworn to before the defense counsel. It cannot be construed as a pardon within
the meaning of article 344 of the Revised Penal Code and section 4, Rule 110 of the Rules of Court. Not
having been presented formally in evidence, it has no probative value. The defense could not have been
precluded from marking it as an exhibit and causing it to be attached to the record if the lower court
rejected it.
Moreover, Petronila's subsequent letter-complaint to the Provincial Fiscal, dated August 10, 1966,
Excusing Amores of rape (Exh. A), constitutes a revocation of that affidavit of desistance or retraction. Her
charge was formally affirmed in a subsequent complaint dated October 3, 1967 which was the basis of the
prosecution in this case.
The appeal is devoid of merit. We agree with the following conclusions of the trial court:
The findings of the doctor who conducted the physical examination on the person of
the complainant riveted (meaning confirmed) the testimonies of Petronila Baligasa
and Julito Santillan who, the evidence of record shows that they are already
motherless; the abrasions on the legs could have been caused by the contact of the
said legs as she was kicking and struggling to free herself from the defendant as the
latter was raping her; the broken condition of her hymen was due to the introduction
of the defendant's member into her vagina, and undoubtedly, the superficial
punctured wound on her left foot was caused by the thorn that pierced her left foot
when she was fleeing from the defendant, and which caused her to stop to remove
it, when defendant overtook her. These circumstances could not have been the
fabrication of a fertile imagination. The doctor's findings and the facts unfolded by the
offended party and her brother are in complete harmony with each other.

In this appeal, he contends that the trial court erred in giving credence to the testimonies of Petronila, her
brother and Doctor Kho. Amores, an unmarried laborer, who finished Grade V, admitted that he was in
Sedronico Bantug's farm in the morning of July 12, 1966 and that he saw Petronila. He asseverated that
he did not do anything to her. His version is that he was pasturing his cow in that occasion. Petronila was
sitting and swinging on a fallen coconut tree. He stayed for only fifteen minutes in the farm. He denied that
he chased and raped her. He admitted that he had known Petronila for sometime. He first saw her at the
house of his elder brother who had married her aunt.
Genaro Bantug and Proculo Inquig corroborated the testimony of Amores. As noted by the trial court,
Bantug blundered because he said that he first came to know that he would be a witness in this case on
July 12, 1966, at eight o'clock in the morning (15 tsn). That was the day when the rape was committed.
Appellant's denial is not sufficient to overthrow the declaration of the complainant that she was raped.
Amores had not explained why Petronila would falsely impute to him the grave crime of rape. It is difficult
to believe that a fourteen-year old girl would undergo the trouble and inconvenience of a physical
examination of her private parts, submit to a public trial and sully her reputation by admitting that she was
raped if her purpose was not to bring to justice the person who had grievously wronged her (People vs.
Canastre, 82 Phil. 480, 483; People vs. Savellano, L-31127, May 31, 1974).

The trial court did not err in convicting appellant Amores of simple rape which is penalized with reclusion
perpetua(Art. 335 of the Revised Penal Code as amended by Republic Act No. 4111). But it erred in giving
him the benefit of the Indeterminate Sentence Law. Article 63 of the Revised Penal Code (not its article
64[1], which was cited by the lower court), dealing with indivisible penalties, applies to this case.
The trial court's judgment should be modified. Appellant Amores is sentenced to reclusion perpetua. The
indemnity is increased to twelve thousand pesos (People vs. Amiscua, L-31238, February 27, 1971, 37
SCRA 813; People vs. Garcines, L-32321, June 28, 1974). Costs against the appellant.
SO ORDERED.

According to the evidence for the defense, Mauro, the son of Valentina Sarmiento, raped Proculo Inquig's
sister. If that was true, then the rape of Petronila by Amores was not an isolated instance in Barrio Bungao.
That circumstance might explain why Inquig accompanied his friend, Amores, when the latter ravished
Petronila.

Zaldivar (Chairman), Fernando, Barredo, Antonio and Fernandez, JJ., concur.

64
The prosecution presented a bizarre case of arbitrary condemnation and instant punishment meted out by
what appear to be the members of a private army. Eleven persons, most of them bodyguards of the town
mayor, went out in a jeep at the behest of one of them who had complained of having been victimized by
cattle rustlers. Having found their supposed quarry, they proceeded to execute each one of them in cold
blood without further ado and without mercy. One was shot in the mouth and died instantly as his son and
daughter looked on in horror. The second was forced to lie down on the ground and then shot twice, also in
the head, before his terrified wife and son. The third, who was only sixteen years old, was kicked in the
head until he bled before he too had his brains blown out. To all appearances, the unfortunate victims were
only innocent farmers and not the dangerous criminals they were pronounced to be.
Bizarre but true, as the trial court agreed.
Of the eleven persons who were charged with murder in three separate informations, the four who stood
trial were found guilty. 1 The other seven have yet to be identified and tried. The sentence of Feliciano
Muoz, who did not appeal, has long become final and executory and is now being served. 2 We deal here
only with the appeals of the other convicts, namely, Marvin Millora, Tomas Tayaba, and Jose Mislang, who
all ask for a reversal.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-38969-70 February 9, 1989
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
FELICIANO MUOZ, alias "Tony", et al., accused, MARVIN MILLORA, TOMAS TAYABA, alias "Tamy
Tayaba" and JOSE MISLANG, defendants-appellants.

The killings occurred in the morning of June 30, 1972, in Balite Sur, San Carlos City, Pangasinan. 3
As established by the prosecution, Feliciano Muoz, Marvin Millora, Tomas Tayaba, Jose Mislang, and the
other seven unidentified men went to the house of Mauro Bulatao and asked for the address of his son
Arsenic. All four of them went inside while the rest surrounded the house. All eleven men were armed.
Mauro, who was then bathing his horse, was called by the accused. As he approached and while under his
house, he was met by Millora who simply shot him at arm's length with a "long firearm," hitting him in the
mouth and killing him as he fell. At that precise time, Muoz, Tayaba and Mislang were standing by Millora,
evidently giving him armed support. None of them made any move to restrain or dissuade him. 4
After killing Mauro, the four accused dragged out of the house his sixteen year old son, Aquilino, and
knocked him down. Muoz kicked him several times in the head as he lay on the ground while the others
looked on in silent approval or at least without objection. They then took the bleeding man with them to
look for their third target, Alejandro Bulatao. 5

The Solicitor General for plaintiff-appellee.

Manuel B. Millora for appellant Marvin Millora.
Abelardo P. Fermin for appellant Jose Mislang.
Aquilino D. Baniqued for appellant Tomas Tayaba.

CRUZ, J.:
Of the four persons convicted in this case, one has not appealed and thus impliedly accepted his
sentence. The others have questioned their conviction and insist that they are innocent. The prosecution
did not think so, and neither does the Solicitor General now. The brief for the appellee would affirm the
finding of guilt and in fact even increase the penalty.

In Alejandro's house, the group forced his wife, Juana to go with them and direct them to her husband.
They found him tending to their cows with his son Pedro. Muoz ordered Alejandro and his wife to lie down
and then, even as Pedro pleaded for his father's life, shot Alejandro twice in the head, killing him instantly.
Millora, Tayaba and Mislang, along with their companions, merely stood by as the brutal act was
committed. Juana watched her husband's death in terror and the 12-year old boy made a desperate run for
his life as one of the accused fired at him and missed. 6
The second victim having been murdered as the first, the accused then vented their violence on Aquilino,
whom Muoz again brutally kicked as the others looked on. Aquilino was entirely defenseless. Finally,
Muoz ended the boy's agony and shot him to death, hitting him in the head and body. Muoz and Minora
then picked up all the empty shells and fled with the rest of their companions, leaving the terrified Juana
with the two grisly corpses. 7
The above events were narrated at the trial by Melecia Bulatao, 8 Mauro's daughter and Aquilino's sister;
Jose Bulatao, 9 Mauro's son and Aquilino's brother; Juana Bulatao, 10 Alejandro's wife; and Pedro

65
Bulatao, 11 their son. Their testimony was corroborated by Dr. Juanita de Vera, 12 who performed the
autopsy on the three victims.
Melecia and Jose testified on the killing of their father by Marvin Minora as the other accused stood by and
the mauling of their brother Aquilino before he was dragged away by the group. The trial court especially
noted the straightforward account given by Jose, who positively identified Minora as the killer and
described the participation of the others, including the savage kicking of his brother by Muoz. 13 Melecia
earlier pointed to Mislang as the one who had shot her father but changed her mind later on crossexamination and named Millora as the actual killer. She explained her turn-about by confessing that she
had earlier agreed to exonerate Minora in exchange for the sum of P3,000.00 promised by his father
although she actually did not receive the money. 14 For her part, Juana related how she was threatened
with death unless she accompanied the accused to where her husband was. She narrated in detail how
Alejandro was killed before her very eyes and how Aquilino was later kicked and then also shot to death,
also by Muoz, while the other accused stood by. 15 Her testimony was corroborated by Pedro, her son,
whom the accused had also thought of killing because he was "talkative" and indeed was shot at when he
successfully escaped after his father's murder. 16
The defense makes much of the fact that it was only months after the killings that it occurred to these
witnesses to denounce the accused and suggests that this delay should impugn their credibility. As
correctly pointed out by the trial judge, however, these witnesses were naturally deterred from doing so for
fear that they would meet the same fate that befell their relatives. These were humble barrio folk whose
timidity did not allow them to report their grievances beyond the barrio officials they knew, more so since
the higher authorities appeared to be indifferent and gave no attention, much less encouragement, to their
complaints.
It is true that there were several inconsistencies in the testimony of these witnesses as painstakingly
pointed out by the appellants, 17 but these are minor flaws that do not detract from the essential
truthfulness of their accounts of the ruthless killings. 18
The brutality of the murders and the veracity of the testimony of the said witnesses are emphasized by the
medical reports 19 of the injuries sustained by the victims, as follows:
Mauro Bulatao:
1. Thru and thru gunshot wound with point of entrance at the upper lip left side
around 1 cm. in diameter and with the exit at the middle of the back of the head
around 1-1/2 cm. in diameter.
2. Gunshot wound at the lower lip left side of the mouth.
Alejandro Bulatao:
1. Lacerated gunshot wound at the left eye with the whole eye practically lacerated.
2. Lacerated gunshot wound of the right eye and the forehead practically opened
with the brain tissue outside.
Aquiline Bulatao:

1. Thru and thru gunshot wound with point of entrance at the upper right jaw bone
around 1- 1/2 cm. in diameter and with the exit at the middle of the back of the head
around 2 cm. in diameter.
2. Gunshot wound at the upper left shoulder out the middle of the left clavicle around
1- 1/2 inches in diameter.
The three appellants invoked individual defenses which the trial court correctly rejected as false and
unbelievable. All claimed the Bulataos were killed as a result of an exchange of gunfire with a rather hazy
group and each claimed he was not involved in the shoot-out.
Testifying for Millora on the alleged encounter between the Bulataos and their adversaries, Victoriano
Bacani said that the latter included Tayaba, Mislang and five others who fled from the scene in a
jeep. 20 Graciano Muoz, corroborating Bacani, said he himself saw seven men in a jeep coming from the
sound of the gunfire after he had paid Mauro P400.00 to redeem his stolen carabao. 21 Another witness for
Millora, Orlando de los Santos, testified to having seen the encounter between the Bulataos and the other
group and declared that the former were armed with carbines and Garand rifles. 22
The trial court rejected Bacani's testimony because he appeared hesitant and suspicious on the stand and
did not give the impression that he was telling the truth. 23 Moreover, it took him all of one year to report the
alleged shooting encounter, which he also did not mention that same afternoon when he visited Mauro's
family to condole with them. 24 It is also not believable that the group would flee because they had no more
bullets when their supposed three adversaries were already dead in the field. The alleged redemption
made by Muoz was described by the trial court as preposterous, especially since no shred of evidence
had been presented to show that Mauro was a cattle rustler, let alone his 16 year old son. 25 As for De los
Santos, no firearms were discovered beside the dead bodies of the Bulataos, including Mauro, who was
found not in the supposed battleground but under his house, as testified to by Dr. De Vera. 26
Millora's own defense was that he was in Dagupan City at the time of the killings, having gone there in the
evening of June 29, 1972. He claimed he had stayed there overnight with a female companion after
drinking beer with Atty. Antonio Resngit returning to San Carlos City only between 8 and 9 o'clock the
following morning or June 30, 1972. 27 The lawyer corroborated him, 28 but he cannot be more credible than
Mauro's own children, Jose and Melecia, who positively identified Millora as the person who actually shot
their father in the face and killed him instantly. Such a traumatic experience could not have been forgotten
by these witnesses who saw their father murdered without warning or mercy nor could their memory of the
heartless killer have been easily wiped out from their minds.
It is stressed that Juana Bulatao and her son Pedro also categorically declared that Millora was with the
group that she took to the field where her husband and Aquilino were killed by Muoz. 29
Tayaba and Mislang offered a common defense, also of alibi. Both claimed that Mislang having complained
of cattle rustlers, a group of policemen, including Tayaba, stayed in the former's house the whole night of
June 29, 1972, leaving only at 8 o'clock the following morning of June 30, 1972, after Mislang had served
them breakfast.30 Significantly, however, barrio Bacnar where Mislang's house was located, is only two
kilometers from Balite Sur. 31Moreover, the trial court doubted the testimony given by Sgt. Lomibao, who
corroborated them and spoke of having heard the gunfire narrated by Millora's witnesses. The decision
noted that Lomibao was mysteriously absent when the police chief and Dr. de Vera went to the scene of
the crime at 9 o'clock that morning to investigate the killings. In fact, it expressed the suspicion that
Lomibao and Patrolman Liwanag, who also testified for the accused, might have been among the seven

66
unidentified persons who were with Muoz and the three appellants herein when the Bulataos were
murdered. 32
All told, we affirm the findings of the trial judge, who had the opportunity to observe the witnesses at the
trial and assess their credibility. As we said in a previous case:
We see no reason to reverse the factual findings of the trial judge, who had the
opportunity to observe the demeanor of the witnesses and to assess their credibility.
The written record will not show that nuance of tone or voice, the meaningful
contrast between the hesitant pause and the prompt reply, and the expression or
color or tilt of face that will affirm the truth or expose the fabrication. All these subtle
factors could be considered by the trial judge in weighing the conflicting declarations
before him, and we do not find that he has erred. 33
We agree that the three appellants, together with Muoz and their seven other companions, participated in
the killings of the three Bulataos in the manner described by the witnesses for the prosecution. The
defenses of the herein appellants should be, as they properly were, rejected as undeserving of belief in the
light of the more convincing and telling evidence submitted by the government.
However, we do not accept the different degrees of participation assigned by the court a quo to each of the
appellants in each of the three offenses imputed to them. In Criminal Case No. 0176, Millora was found
guilty as principal and Muoz and the other two herein appellants only as accomplices, and in Criminal
Case Nos. 0177 and 0178, Muoz was found guilty as principal and the herein appellants only as
accomplices. 34 In support of this finding, the trial court said that there was no evidence of conspiracy to
justify holding each of the accused equally liable for the three murders.
We hold that there was. Indeed, it is clear that from the very start, when the eleven men went out to look
for the suspected cattle rustlers, there was already an agreement among them to ferret out and punish the
Bulataos whom they had condemned beforehand. They knew whom they were looking for. They knew
where to look for them. They sought each of them with drawn and ready weapons. When they reached
Mauro Bulatao's house, four of them went inside while the rest deployed themselves in strategic positions.
When Millora shot Mauro, the appellants and the others stood by with guns at the ready. Nobody moved to
dissuade or stop him. Together they dragged Aquilino from the house and the rest watched while Muoz
kicked him in the head while helpless on the ground. Together, they took him with them and then forced
Juana Bulatao to lead them to her husband. The rest stood by with their weapons as Muoz shot Alejandro
in the head. No one interceded to stop him from also killing Aquilino. There is no question that the group
moved in concert, pursuing a common design previously agreed upon, that made each of them part of a
conspiracy. 35 As such, each of them is liable in equal degree with the others for each of the three killings.
Each member of the conspiracy to commit the crime of murder is guilty as a co-principal, regardless of who
actually pulled the trigger that killed the three victims. It is settled that in a conspiracy the act of one is the
act of all. 36
Each of the three killings constituted the crime of murder, qualified by alevosia. There was treachery
because every one of the three victims was completely helpless and defenseless when shot and killed by
the accused with no risk to themselves. Mauro was completely taken by surprise when he was shot in the
face. Alejandro was lying down when he was shot in the head. Aquilino was seated when he was shot in
the head and shoulders. None of the three victims had a chance to resist.

The penalty for murder under Article 248 of the Revised Penal Code was reclusion temporal in its
maximum period to death, but this was modified by Article III, Section 19(l) of the 1987 Constitution
providing as follows:
Excessive fines shall not be imposed, nor cruel, degrading or inhuman punishment
inflicted Neither shall death penalty be imposed, unless, for compelling reasons
involving heinous crimes, the Congress hereafter provides for it. Any death penalty
already imposed shall be reduced to reclusion perpetua.
Conformably, the Court has since February 2, 1987 not imposed the death penalty whenever it was called
for under the said article but instead reduced the same to reclusion perpetua as mandated by the above
provision. The maximum period of the penalty was thus in effect lowered to the medium, the same period
applied, as before, where the offense was not attended by any modifying circumstance, with the minimum
period, i. e.,reclusion temporal maximum, being still applicable in all other cases. The three-grade scheme
of the original penalty, including death, was thus maintained except that the maximum period was not
imposed because of the constitutional prohibition.
In People v. Gavarra 37 Justice Pedro L. Yap declared for the Court that "in view of the abolition of the
death penalty under Section 19, Article III of the 1987 Constitution, the penalty that may be imposed for
murder is reclusion temporal in its maximum period to reclusion perpetua" thereby eliminating death as the
original maximum period. Later, without categorically saying so, the Court, through Justice Ameurfina
Melencio-Herrera in People v. Masangkay 38 and through Justice Andres R. Narvasa in People v.
Atencio 39 divided the modified penalty into three new periods, the limits of which were specified by Justice
Edgardo L. Paras in People v. Intino, 40 as follows: the lower half of reclusion temporal maximum as the
minimum; the upper half of reclusion temporal maximum as the medium; and reclusion perpetua as the
maximum.
The Court has reconsidered the above cases and, after extended discussion, come to the conclusion that
the doctrine announced therein does not reflect the intention of the framers as embodied in Article III,
Section 19(l) of the Constitution. This conclusion is not unanimous, to be sure. Indeed, there is much to be
said of the opposite view, which was in fact shared by many of those now voting for its reversal. The
majority of the Court, however, is of the belief that the original interpretation should be restored as the
more acceptable reading of the constitutional provision in question.
The advocates of the Masangkay ruling argue that the Constitution abolished the death penalty and
thereby limited the penalty for murder to the remaining periods, to wit, the minimum and the medium.
These should now be divided into three new periods in keeping with the three-grade scheme intended by
the legislature. Those who disagree feel that Article III, Section 19(l) merely prohibits the imposition of the
death penalty and has not, by reducing it to reclusion perpetua, also correspondingly reduced the
remaining penalties. These should be maintained intact.
A reading of Section 19(l) of Article III will readily show that there is really nothing therein which expressly
declares the abolition of the death penalty. The provision merely says that the death penalty shall not be
imposed unless for compelling reasons involving heinous crimes the Congress hereafter provides for it
and, if already imposed, shall be reduced to reclusion perpetua. The language, while rather awkward, is
still plain enough. And it is a settled rule of legal hermeneutics that if the language under consideration is
plain, it is neither necessary nor permissible to resort to extrinsic aids, like the records of the constitutional
convention, for its interpretation. 41

67
At that, the Court finds that such resort, even if made, would not be of much assistance either in the case
at bar. Accepting arguendo that it was the intention of the framers to abolish the death penalty, we are still
not convinced from the debates in the Constitutional Commission that there was also a requirement to
adjust the two remaining periods by dividing them into three shorter periods. This is not a necessary
consequence of the provision as worded. The following exchange cited by those in favor of Masangkay is
at best thought-provoking but not decisive of the question:
FR. BERNAS: The effect is the abolition of the death penalty
from those statutes-only the death penalty. The statute is not
abolished, but the penalty is abolished.
MR. MAAMBONG: That is what I am worried about, because
the statutes, especially in the General Criminal Law, which is
the Revised Penal Code, do not necessarily punish directly
with death. Sometimes it has a range of reclusion temporal to
death or reclusion perpetua to death. And what would be the
effect on the judges, for example, if the range is reclusion
temporal to death and he can no longer impose the death
penalty? He will have difficulty in computing the degrees.
Could the committee enlighten us on how the judge will look at
the specific situation.
FR. BERNAS: I grant that the judges will have difficulty, but I
suppose that the judges will be equal to their tasks. The only
thing is, if there is a range, the range cannot go as far as
death (Record, CONCOM, July 18, 1986, Vol. I, 749).
FR. BERNAS: Certainly, the penalties lower than death
remain.
MR. REGALADO: That would be reclusion perpetua. But the
range of the penalty for murder consists of three periods. The
maximum period of reclusion temporal under the present
status is the minimum period for the penalty for murder. The
medium period isreclusion perpetua. The maximum period is
death. If we now remove the death penalty, we will, therefore,
have a range of penalty of 17 years, 4 months and 1 day to 20
years of reclusion temporal up to reclusion perpetua. You
cannot divide reclusion perpetuainto two. While it has a
duration of 30 years, it is an indivisible penalty. Where do we
get the medium period now until such time that Congress gets
around to accommodate this amendment?
FR. BERNAS: As I said, this is a matter which lawyers can
argue with judges about. All we are saying is, the judges
cannot impose the death penalty (Record, CONCOM July 18,
1986, Vol. I, p. 750).

So there we have it "this is a matter which lawyers can argue with judges about." Assuming that
Commissioner Bernas's answer reflected the consensus of the body, we are still not persuaded that it was
the intention of the framers to lower not only the maximum period but also the other periods of the original
penalty. That is not necessarily inferable from his statement that "the judges will be equal to their task,"
especially so since he also said and we think with more definiteness-that "all we are saying is that the
judges cannot impose the death penalty" (Emphasis supplied). We understand this to mean that they were
not saying more.
The question as we see it is not whether the framers intended to abolish the death penalty or merely to
prevent its imposition. Whatever the intention was, what we should determine is whether or not they also
meant to require a corresponding modification in the other periods as a result of the prohibition against the
death penalty.
It is definite that such a requirement, if there really was one, is not at all expressed in Article III, Section
19(l) of the Constitution or indicated therein by at least clear and unmistakable implication. It would have
been so easy, assuming such intention, to state it categorically and plainly, leaving no doubt as to its
meaning. One searches in vain for such a statement, express or even implied. The writer of this opinion
makes the personal observation that this might be still another instance where the framers meant one thing
and said another-or strangely, considering their loquacity elsewhere did not say enough.
The original ruling as applied in the Gavarra, Masangkay, Atencio and Intino cases represented the
unanimous thinking of the Court as it was then constituted. All but two members 42 at that time still sit on
the Court today. If we have seen fit to take a second look at the doctrine on which we were all agreed
before, it is not because of a change in the composition of this body. It is virtually the same Court that is
changing its mind after reflecting on the question again in the light of new perspectives. And well it might,
and can, for the tenets it lays down are not immutable. The decisions of this Court are not petrified rules
grown rigid once pronounced but vital, growing things subject to change as all life is. While we are told that
the trodden path is best, this should not prevent us from opening a fresh trial or exploring the other side or
testing a new idea in a spirit of continuing inquiry.
Accordingly, with the hope that "as judges, (we) will be equal to (our) tasks," whatever that means, we
hereby reverse the current doctrine providing for three new periods for the penalty for murder as reduced
by the Constitution. Instead, we return to our original interpretation and hold that Article III, Section 19(l)
does not change the periods of the penalty prescribed by Article 248 of the Revised Penal Code except
only insofar as it prohibits the imposition of the death penalty and reduces it to reclusion perpetua. The
range of the medium and minimum penalties remains unchanged.
The Court relies that this interpretation may lead to certain inequities that would not have arisen under
Article 248 of the Revised Penal Code before its modification. Thus, a person originally subject to the
death penalty and another who committed the murder without the attendance of any modifying
circumstance will now be both punishable with the same medium period although the former is concededly
more guilty than the latter. True enough. But that is the will not of this Court but of the Constitution. That is
a question of wisdom, not construction. Of some relevance perhaps is the parable in the Bible of the
workman who was paid the stipulated daily wage of one penny although he had worked longer than others
hired later in the day also paid the same amount. When he complained because he felt unjustly treated by
the householder, the latter replied: "Friend, I do you no wrong. Did you not agree with me for a penny?'
The problem in any event is addressed not to this Court but to the Congress. Penalties are prescribed by
statute and are essentially and exclusively legislative. As judges, we can only interpret and apply them and

68
have no authority to modify them or revise their range as determined exclusively by the legislature. We
should not encroach on this prerogative of the lawmaking body.
Coming back to the case at bar, we find that there being no generic aggravating or mitigating circumstance
attending the commission of the offenses, the applicable sentence is the medium period of the penalty
prescribed by Article 248 of the Revised Penal Code which, conformably to the new doctrine here adopted
and announced, is still reclusion perpetua. This is the penalty we impose on all the accused-appellants for
each of the three murders they have committed in conspiracy with the others. The award of civil indemnity
for the heirs of each of the victims is affirmed but the amount thereof is hereby increased to P30,000.00 in
line with the present policy.
It remains to observe that the crimes inflicted upon the humble farmers would have remained unpunished
were it not for the vigilance of certain responsible officials, especially the police and the prosecuting officer,
who took up the cudgels for the victims' families. The courage and conscientiousness they displayed are
still the most potent weapons against those who, in their arrogance, believe that they can flout the law and
frustrate justice because they have the protection of powerful patrons.
WHEREFORE, the appealed decision is MODIFIED and all the accused-appellants are hereby declared
guilty as principals in Criminal Case Nos. 0176, 0177 and 0178. Each of them is sentenced to suffer three
(3) penalties ofreclusion perpetua, and to pay solidarily to the heirs of their victims civil indemnity in the
sum of P30,000.00 for each of the deceased, or a total indemnity of P90,000.00, with costs.
SO ORDERED.
Fernan, C.J., Gutierrez, Jr., Feliciano, Gancayco, Padilla, Bidin, Grio-Aquino and Medialdea, JJ., concur.

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
CEILITO ORITA alias "Lito," defendant-appellant.
The Office of the Solicitor General for plaintiff-appellee.
C. Manalo for defendant-appellant.

MEDIALDEA, J.:
The accused, Ceilito Orita alias Lito, was charged with the crime of rape in Criminal Case No. 83-031-B
before the Regional Trial Court, Branch II, Borongan, Eastern Samar. The information filed in the said case
reads as follows (p. 47, Rollo):
The undersigned Second Assistant Provincial Fiscal upon prior complaint under oath by the
offended party, accuses CEILITO ORITA alias LITO of the crime of Rape committed as follows:
That on March 20, 1983, at about 1:30 o'clock in the morning inside a boarding house at
Victoria St., Poblacion, Borongan, Eastern Samar, Philippines, and within the jurisdiction of this
Honorable Court, above named accused with lewd designs and by the use of a Batangas knife
he conveniently provided himself for the purpose and with threats and intimidation, did, then
and there wilfully, unlawfully and feloniously lay with and succeeded in having sexual
intercourse with Cristina S. Abayan against her will and without her consent.
CONTRARY TO LAW.
Upon being arraigned, the accused entered the plea of not guilty to the offense charged. After the
witnesses for the People testified and the exhibits were formally offered and admitted, the prosecution
rested its case. Thereafter, the defense opted not to present any exculpatory evidence and instead filed a
Motion to Dismiss. On August 5, 1985, the trial court rendered its decision, the dispositive portion of which
reads (pp. 59-60, Rollo):

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 88724

April 3, 1990

WHEREFORE. the Court being morally certain of the guilt of accused CEILITO ORITA @ LITO,
of the crime of Frustrated Rape (Art. 335, RPC), beyond reasonable doubt, with the aggravating
circumstances of dwelling and nightime (sic) with no mitigating circumstance to offset the same,
and considering the provisions of the Indeterminate Sentence Law, imposes on accused an
imprisonment of TEN (10) YEARS and ONE (1) DAY, PRISION MAYOR, as minimum to
TWELVE (12) YEARS PRISION MAYOR, maximum; to indemnify CRISTINA S. ABAYAN, the
amount of Four Thousand (P4,000.00) Pesos, without subsidiary imprisonment in case of
insolvency, and to pay costs.
SO ORDERED.
Not satisfied with the decision, the accused appealed to the Court of Appeals. On December 29, 1988, the
Court of Appeals rendered its decision, the dispositive portion of which reads (p. 102, Rollo):

69
WHEREFORE, the trial court's judgment is hereby MODIFIED, and the appellant found guilty of
the crime of rape, and consequently, sentenced to suffer imprisonment of reclusion
perpetua and to indemnify the victim in the amount of P30,000.00.
SO ORDERED.
On January 11, 1989, the Court of Appeals issued a resolution setting aside its December 29, 1988
decision and forwarded the case to this Court, considering the provision of Section 9, paragraph 3 of Batas
Pambansa Blg. 129 in conjunction with Section 17, paragraph 3, subparagraph 1 of the Judiciary Act of
1948.
The antecedent facts as summarized in the People's brief are as follows (pp. 71-75, Rollo):
Complainant Cristina S. Abayan was a 19-year old freshman student at the St. Joseph's
College at Borongan, Eastern Samar. Appellant was a Philippine Constabulary (PC) soldier.
In the early morning of March 20, 1983, complainant arrived at her boarding house. Her
classmates had just brought her home from a party (p. 44, tsn, May 23, 1984). Shortly after her
classmates had left, she knocked at the door of her boarding house (p. 5, ibid). All of a sudden,
somebody held her and poked a knife to her neck. She then recognized appellant who was a
frequent visitor of another boarder (pp. 8-9,ibid).
She pleaded with him to release her, but he ordered her to go upstairs with him. Since the door
which led to the first floor was locked from the inside, appellant forced complainant to use the
back door leading to the second floor (p. 77, ibid). With his left arm wrapped around her neck
and his right hand poking a "balisong" to her neck, appellant dragged complainant up the stairs
(p. 14, ibid). When they reached the second floor, he commanded her to look for a room. With
the Batangas knife still poked to her neck, they entered complainant's room.
Upon entering the room, appellant pushed complainant who hit her head on the wall. With one
hand holding the knife, appellant undressed himself. He then ordered complainant to take off
her clothes. Scared, she took off her T-shirt. Then he pulled off her bra, pants and panty (p.
20, ibid).
He ordered her to lie down on the floor and then mounted her. He made her hold his penis and
insert it in her vagina. She followed his order as he continued to poke the knife to her. At said
position, however, appellant could not fully penetrate her. Only a portion of his penis entered
her as she kept on moving (p. 23, ibid).
Appellant then lay down on his back and commanded her to mount him. In this position, only a
small part again of his penis was inserted into her vagina. At this stage, appellant had both his
hands flat on the floor. Complainant thought of escaping (p. 20, ibid).
She dashed out to the next room and locked herself in. Appellant pursued her and climbed the
partition. When she saw him inside the room, she ran to another room. Appellant again chased
her. She fled to another room and jumped out through a window (p. 27, ibid).

Still naked, she darted to the municipal building, which was about eighteen meters in front of
the boarding house, and knocked on the door. When there was no answer, she ran around the
building and knocked on the back door. When the policemen who were inside the building
opened the door, they found complainant naked sitting on the stairs crying. Pat. Donceras, the
first policeman to see her, took off his jacket and wrapped it around her. When they discovered
what happened, Pat. Donceras and two other policemen rushed to the boarding house. They
heard a sound at the second floor and saw somebody running away. Due to darkness, they
failed to apprehend appellant.
Meanwhile, the policemen brought complainant to the Eastern Samar Provincial Hospital where
she was physically examined.
Dr. Ma. Luisa Abude, the resident physician who examined complainant, issued a Medical
Certificate (Exhibit "A") which states:
Physical Examination Patient is fairly built, came in with loose clothing with no
under-clothes; appears in state of shock, per unambulatory.
PE Findings Pertinent Findings only.
Neck- Circumscribed hematoma at Ant. neck.
Breast Well developed, conical in shape with prominent nipples; linear abrasions
below (L) breast.
Back Multiple pinpoint marks.
Extremities Abrasions at (R) and (L) knees.
Vulva No visible abrasions or marks at the perineal area or over the
vulva, errythematous (sic)areas noted surrounding vaginal orifice, tender, hymen
intact; no laceration fresh and old noted; examining finger can barely enter and with
difficulty; vaginal canal tight; no discharges noted.
As aforementioned, the trial court convicted the accused of frustrated rape.
In this appeal, the accused assigns the following errors:
1) The trial court erred in disregarding the substantial inconsistencies in the testimonies of the witnesses;
and
2) The trial court erred in declaring that the crime of frustrated rape was committed by the accused.
The accused assails the testimonies of the victim and Pat. Donceras because they "show remarkable and
vital inconsistencies and its incredibility amounting to fabrication and therefore casted doubt to its candor,
truth and validity." (p. 33, Rollo)

70
A close scrutiny of the alleged inconsistencies revealed that they refer to trivial inconsistencies which are
not sufficient to blur or cast doubt on the witnesses' straightforward attestations. Far from being badges of
fabrication, the inconsistencies in their testimonies may in fact be justifiably considered as manifestations
of truthfulness on material points. These little deviations also confirm that the witnesses had not been
rehearsed. The most candid witnesses may make mistakes sometimes but such honest lapses do not
necessarily impair their intrinsic credibility (People v. Cabato, G.R. No. L-37400, April 15, 1988, 160 SCRA
98). Rather than discredit the testimonies of the prosecution witnesses, discrepancies on minor details
must be viewed as adding credence and veracity to such spontaneous testimonies (Aportadera et al. v.
Court of Appeals, et al., G.R. No. L-41358, March 16, 1988, 158 SCRA 695). As a matter of fact, complete
uniformity in details would be a strong indication of untruthfulness and lack of spontaneity (People v. Bazar,
G.R. No. L-41829, June 27, 1988, 162 SCRA 609). However, one of the alleged inconsistencies deserves
a little discussion which is, the testimony of the victim that the accused asked her to hold and guide his
penis in order to have carnal knowledge of her. According to the accused, this is strange because "this is
the only case where an aggressor's advances is being helped-out by the victim in order that there will be a
consumation of the act." (p. 34, Rollo). The allegation would have been meritorious had the testimony of
the victim ended there. The victim testified further that the accused was holding a Batangas knife during
the aggression. This is a material part of the victim's testimony which the accused conveniently deleted.
We find no cogent reason to depart from the well-settled rule that the findings of fact of the trial court on
the credibility of witnesses should be accorded the highest respect because it has the advantage of
observing the demeanor of witnesses and can discern if a witness is telling the truth (People v. Samson,
G.R. No. 55520, August 25, 1989). We quote with favor the trial court's finding regarding the testimony of
the victim (p 56, Rollo):
As correctly pointed out in the memorandum for the People, there is not much to be desired as
to the sincerity of the offended party in her testimony before the court. Her answer to every
question profounded (sic), under all circumstances, are plain and straightforward. To the Court
she was a picture of supplication hungry and thirsty for the immediate vindication of the affront
to her honor. It is inculcated into the mind of the Court that the accused had wronged her; had
traversed illegally her honor.
When a woman testifies that she has been raped, she says in effect all that is necessary to show that rape
was committed provided her testimony is clear and free from contradiction and her sincerity and candor,
free from suspicion (People v Alfonso, G.R. No. 72573, August 31, 1987, 153 SCRA 487; People v. Alcid,
G.R. Nos. 66387-88, February 28, 1985, 135 SCRA 280; People v. Soterol G.R. No. 53498, December 16,
1985, 140 SCRA 400). The victim in this case did not only state that she was raped but she testified
convincingly on how the rape was committed. The victim's testimony from the time she knocked on the
door of the municipal building up to the time she was brought to the hospital was corroborated by Pat.
Donceras. Interpreting the findings as indicated in the medical certificate, Dr. Reinerio Zamora (who was
presented in view of the unavailability of Dr. Abude) declared that the abrasions in the left and right knees,
linear abrasions below the left breast, multiple pinpoint marks, circumscribed hematoma at the anterior
neck, erythematous area surrounding the vaginal orifice and tender vulva, are conclusive proof of struggle
against force and violence exerted on the victim (pp. 52-53, Rollo). The trial court even inspected the
boarding house and was fully satisfied that the narration of the scene of the incident and the conditions
therein is true (p. 54, Rollo):
. . . The staircase leading to the first floor is in such a condition safe enough to carry the weight
of both accused and offended party without the slightest difficulty, even in the manner as
narrated. The partitions of every room were of strong materials, securedly nailed, and would not
give way even by hastily scaling the same.

A little insight into human nature is of utmost value in judging rape complaints (People v. Torio, et al., G.R.
No. L-48731, December 21, 1983, 126 SCRA 265). Thus, the trial court added (p. 55, Rollo):
. . . And the jump executed by the offended party from that balcony (opening) to the ground
which was correctly estimated to be less than eight (8) meters, will perhaps occasion no injury
to a frightened individual being pursued. Common experience will tell us that in occasion of
conflagration especially occuring (sic) in high buildings, many have been saved by jumping from
some considerable heights without being injured. How much more for a frightened barrio girl,
like the offended party to whom honor appears to be more valuable than her life or limbs?
Besides, the exposure of her private parts when she sought assistance from authorities, as
corroborated, is enough indication that something not ordinary happened to her unless she is
mentally deranged. Sadly, nothing was adduced to show that she was out of her mind.
In a similar case (People v. Sambili G.R. No. L-44408, September 30, 1982, 117 SCRA 312), We ruled
that:
What particularly imprints the badge of truth on her story is her having been rendered entirely
naked by appellant and that even in her nudity, she had to run away from the latter and
managed to gain sanctuary in a house owned by spouses hardly known to her. All these acts
she would not have done nor would these facts have occurred unless she was sexually
assaulted in the manner she narrated.
The accused questions also the failure of the prosecution to present other witnesses to corroborate the
allegations in the complaint and the non-presentation of the medico-legal officer who actually examined the
victim. Suffice it to say that it is up to the prosecution to determine who should be presented as witnesses
on the basis of its own assessment of their necessity (Tugbang v. Court of Appeals, et al., G.R. No. 56679,
June 29, 1989; People v. Somera, G.R. No. 65589, May 31, 1989). As for the non-presentation of the
medico-legal officer who actually examined the victim, the trial court stated that it was by agreement of the
parties that another physician testified inasmuch as the medico-legal officer was no longer available. The
accused did not bother to contradict this statement.
Summing up, the arguments raised by the accused as regards the first assignment of error fall flat on its
face. Some were not even substantiated and do not, therefore, merit consideration. We are convinced that
the accused is guilty of rape. However, We believe the subject matter that really calls for discussion, is
whether or not the accused's conviction for frustrated rape is proper. The trial court was of the belief that
there is no conclusive evidence of penetration of the genital organ of the victim and thus convicted the
accused of frustrated rape only.
The accused contends that there is no crime of frustrated rape. The Solicitor General shares the same
view.
Article 335 of the Revised Penal Code defines and enumerates the elements of the crime of rape:
Art. 335. When and how rape is committed. Rape is committed by having carnal knowledge
of a woman under any of the following circumstances:
1. By using force or intimidation;

71
2. When the woman is deprived of reason or otherwise unconscious and
3. When the woman is under twelve years of age, even though neither of the circumstances
mentioned in the two next preceding paragraphs shall be present.
xxx

xxx

xxx

Carnal knowledge is defined as the act of a man in having sexual bodily connections with a woman
(Black's Law Dictionary. Fifth Edition, p. 193).
On the other hand, Article 6 of the same Code provides:
Art. 6. Consummated, frustrated, and attempted felonies. Consummated felonies as well as
those which are frustrated and attempted, are punishable.
A felony is consummated when all the elements necessary for its execution and
accomplishment are present; and it is frustrated when the offender performs all the acts of
execution which would produce the felony as a consequence but which, nevertheless, do not
produce it by reason of causes independent of the will of the perpetrator.
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.
Correlating these two provisions, there is no debate that the attempted and consummated stages apply to
the crime of rape.1wphi1 Our concern now is whether or not the frustrated stage applies to the crime of
rape.
The requisites of a frustrated felony are: (1) that the offender has performed all the acts of execution which
would produce the felony and (2) that the felony is not produced due to causes independent of the
perpetrator's will. In the leading case of United States v. Eduave, 36 Phil. 209, 212, Justice Moreland set a
distinction between attempted and frustrated felonies which is readily understood even by law students:
. . . 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 of the acts which should result in the consummation of the crime and voluntarily
desists from proceeding further, it can not 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 the crime
and the moment when all of 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.

Clearly, in the crime of rape, from the moment the offender has carnal knowledge of his victim he actually
attains his purpose and, from that moment also all the essential elements of the offense have been
accomplished.Nothing more is left to be done by the offender, because he has performed the last act
necessary to produce the crime. Thus, the felony is consummated. In a long line of cases (People v. Oscar,
48 Phil. 527; People v. Hernandez, 49 Phil. 980; People v. Royeras, G.R. No. L-31886, April 29, 1974, 56
SCRA 666; People v. Amores, G.R. No. L-32996, August 21, 1974, 58 SCRA 505), We have set the
uniform rule that for the consummation of rape, perfect penetration is not essential. Any penetration of the
female organ by the male organ is sufficient. Entry of the labia or lips of the female organ, without rupture
of the hymen or laceration of the vagina is sufficient to warrant conviction. Necessarily, rape is attempted if
there is no penetration of the female organ (People v. Tayaba, 62 Phil. 559 People v. Rabadan et al., 53
Phil. 694; United States v. Garcia: 9 Phil. 434) because not all acts of execution was performed. The
offender merely commenced the commission of a felony directly by overt acts. Taking into account the
nature, elements and manner of execution of the crime of rape and jurisprudence on the matter, it is hardly
conceivable how the frustrated stage in rape can ever be committed.
Of course, We are aware of our earlier pronouncement in the case of People v. Eria 50 Phil. 998 [1927]
where We found the offender guilty of frustrated rape there being no conclusive evidence of penetration of
the genital organ of the offended party. However, it appears that this is a "stray" decision inasmuch as it
has not been reiterated in Our subsequent decisions. Likewise, We are aware of Article 335 of the Revised
Penal Code, as amended by Republic Act No. 2632 (dated September 12, 1960) and Republic Act No.
4111 (dated March 29, 1965) which provides, in its penultimate paragraph, for the penalty of death when
the rape is attempted orfrustrated and a homicide is committed by reason or on the occasion thereof. We
are of the opinion that this particular provision on frustrated rape is a dead provision. The Eria
case, supra, might have prompted the law-making body to include the crime of frustrated rape in the
amendments introduced by said laws.
In concluding that there is no conclusive evidence of penetration of the genital organ of the victim, the trial
court relied on the testimony of Dr. Zamora when he "categorically declared that the findings in the vulva
does not give a concrete disclosure of penetration. As a matter of fact, he tossed back to the offended
party the answer as to whether or not there actually was penetration." (p. 53, Rollo) Furthermore, the trial
court stated (p. 57, Rollo):
. . . It cannot be insensible to the findings in the medical certificate (Exhibit "A") as interpreted
by Dr. Reinerio Zamora and the equivocal declaration of the latter of uncertainty whether there
was penetration or not. It is true, and the Court is not oblivious, that conviction for rape could
proceed from the uncorroborated testimony of the offended party and that a medical certificate
is not necessary (People v. Royeras People v. Orteza, 6 SCRA 109, 113). But the citations the
people relied upon cannot be applicable to the instant case. The testimony of the offended party
is at variance with the medical certificate. As such, a very disturbing doubt has surfaced in the
mind of the court. It should be stressed that in cases of rape where there is a positive testimony
and a medical certificate, both should in all respect, compliment each other, for otherwise to rely
on the testimony alone in utter disregard of the manifest variance in the medical certificate,
would be productive of mischievous results.
The alleged variance between the testimony of the victim and the medical certificate does not exist. On the
contrary, it is stated in the medical certificate that the vulva was erythematous (which means marked by
abnormal redness of the skin due to capillary congestion, as in inflammation) and tender. It bears
emphasis that Dr. Zamoradid not rule out penetration of the genital organ of the victim. He merely testified
that there was uncertainty whether or not there was penetration. Anent this testimony, the victim positively
testified that there was penetration, even if only partially (pp. 302, 304, t.s.n., May 23, 1984):

72
Q Was the penis inserted on your vagina?
A It entered but only a portion of it.
xxx

xxx

xxx

Q What do you mean when you said comply, or what act do you referred (sic) to, when you said
comply?
A I inserted his penis into my vagina.
Q And was it inserted?
A Yes only a little.

G.R. No. L-19069, People v. Peralta et al., 25 SCRA 759

Republic of the Philippines

The fact is that in a prosecution for rape, the accused may be convicted even on the sole basis of the
victim's testimony if credible (People v. Tabago, G.R. No. 69778, November 8, 1988, 167 SCRA 65; People
v. Aragona, G.R. No. L-43752, September 19, 1985, 138 SCRA 569; People v. Taduyo, G.R. Nos. L-3792829, September 29, 1987, 154 SCRA 349). Moreover, Dr. Zamora's testimony is merely corroborative and is
not an indispensable element in the prosecution of this case (People v. Alfonso, supra).
Although the second assignment of error is meritorious, it will not tilt the scale in favor of the accused
because after a thorough review of the records, We find the evidence sufficient to prove his guilt beyond
reasonable doubt of the crime of consummated rape.

SUPREME COURT
Manila
EN BANC
October 29, 1968
G.R. No. L-19069

Article 335, paragraph 3, of the Revised Penal Code provides that whenever the crime of rape is
committed with the use of a deadly weapon, the penalty shall be reclusion perpetua to death. The trial
court appreciated the aggravating circumstances of dwelling and nighttime. Thus, the proper imposable
penalty is death. In view, however, of Article 111, Section 19(1) of the 1987 Constitution and Our ruling
in People v. Millora, et al., G.R. Nos. L-38968-70, February 9, 1989, that the cited Constitutional provision
did not declare the abolition of the death penalty but merely prohibits the imposition of the death penalty,
the Court has since February 2, 1987 not imposed the death penalty whenever it was called for under the
Revised Penal Code but instead reduced the same to reclusion perpetua (People v. Solis, et al., G.R. Nos.
78732-33, February 14, 1990). Reclusion perpetua, being a single indivisible penalty under Article 335,
paragraph 3, is imposed regardless of any mitigating or aggravating circumstances (in relation to Article
63, paragraph 1, Revised Penal Code; see People v. Arizala, G.R. No. 59713, March 15, 1982, 112 SCRA
615; People v. Manzano, G.R. No. L38449, November 25, 1982, 118 SCRA 705; People v. Ramirez, G.R.
No. 70744, May 31, 1985, 136 SCRA 702).

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

ACCORDINGLY, the decision of the Regional Trial Court is hereby MODIFIED. The accused Ceilito Orita is
hereby found guilty beyond reasonable doubt of the crime of rape and sentenced to reclusion perpetua as
well as to indemnify the victim in the amount of P30,000.00.

review, Amadeo Peralta, Andres Factora, Leonardo Dosal, Angel Parumog, Gervasio Larita and Florencio

vs.
AMADEO PERALTA, ET AL., defendants,
ANDRES FACTORA, LEONARDO DOSAL, ANGEL PARUMOG, AMADEO PERALTA, FLORENCIO
LUNA and GERVASIO LARITA, defendants-review.
Assistant Solicitors General Vicente A. Torres and Antonio Ibarra for plaintiff-appellee.
J. R. Nuguid for defendants-review.
PER CURIAM:
In the decision in criminal case 7705 of the Court of First Instance of Rizal,subject of the present automatic
Luna (six among the twenty-two defendants[[1]]charged therein with multiple murder) were pronounced
guilty, and all sentenced to death, to indemnify jointly and severally the heirs of each of the victims,

SO ORDERED.

namely, Jose Carriego, Eugenio Barbosa and Santos Cruz, in the sum of P6,000, and each to pay his

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

corresponding share of the costs.

The information recites:

73

That on or about the 16th day of February, 1958, in the municipality of Muntinglupa, province of Rizal,

As early as in 1956, a great number of inmates confined in the national penitentiary at Muntinglupa arrayed

Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, who are convicts

themselves into two warring gangs, the "Sigue-Sigue" and the "OXO", the former composed predominantly

confined in the New Bilibid Prisons by virtue of final judgments, conspiring, confederating and mutually

of Tagalog inmates, the latter comprised mainly of prisoners from the Visayas and Mindanao. Since then

helping and aiding one another, with evident premeditation and treachery, all armed with deadly weapons,

the prison compound has been rocked time and time again by bloody riots resulting in the death of many of

did, then and there, willfully, unlawfully and feloniously kill Jose Carriego, Eugenio Barbosa and Santos

their members and suspected sympathizers. In an effort to avert violent clashes between the contending

Cruz, also convicts confined in the same institution, by hitting, stabbing and striking them with ice picks,

groups, prison officials segrerated known members of the "Sigue-Sigue" from those of the "OXO". Building

clubs and other improvised weapons, pointed and/or sharpened, thereby inflicting upon the victims multiple

1 housed "Sigue-Sigue" members, while a majority of the prisoners confined in Bldg. 4 belonged to the

serious injuries which directly caused their deaths.

"OXO". Even in Bldg. 4, which is composed of four brigades, namely, 4-A and 4-B (upper floor) and 4-C
and 4-D (first floor), inmates from Visayas and Mindanao, from whom the "OXO" drew most of its

That the aggravating circumstance of quasi-recidivism is present in the commission of the crime in that the

members, were confined in 4-A.

crime was committed after the accused have been convicted by final judgments and while they are serving
the said judgments in the New Bilibid Prisons.

It was at about 7:00 a.m. on February 16, 1958, while the inmates of the penitentiary were preparing to

Contrary to law with the following aggravating circumstances:

attend Sunday mass, that a fight between two rival members of the "Sigue-Sigue" and "OXO" gangs
occurred in the plaza where the prisoners were assembled, causing a big commotion. The fight was,

1. That the crime was committed with insult to public authorities;

however, quelled, and those involved were led away for investigation, while the rest of the prisoners were
ordered to return to their respective quarters. Hardly had conditions returned to normal when a riot broke

2. That the crime was committed by a band;

out in Bldg. 1, a known lair of the "Sigue-Sigue". The inmates thereof tried to invade Bldg. 4, where many
members and sympathizers of the "OXO" gang were confined. The timely arrival of the guards forced the

3. That the crime was committed by armed men or persons who insure or afford impunity;

invading inmates to retreat and return to Bldg. 1. Moments later, another riot erupted in Bldg. 4, as the
inmates of brigade 4-A destroyed the lock of their door and then rampaged from one brigade to another.

4. That use of superior strength or means was employed to weaken the defense;

The invading prisoners from 4-A, mostly "OXO" members and sympathizers, clubbed and stabbed to death
Jose Carriego, an inmate of 4-B. Afterwards, they forcibly opened the door of 4-C and killed two more

5. That as a means to the commission of the crime doors and windows have been broken;

inmates, namely, Eugenio Barbosa and Santos Cruz.

6. That means was employed which add ignominy to the natural effects of the act;
The three victims sustained injuries which swiftly resulted in their death before they could be brought to
7. That the crime was committed where public authorities were engaged in the discharge of their duties.

the hospital.

Upon motion of the provincial fiscal before trial, the lower court dismissed the charge against one of the

Jose Carriego: (a) lacerated wound on the lower lip, 5 cm. in length and 3 cm.in depth; (b) contusion and

accused[[2]] for lack of evidence. After the prosecution had rested its case, the charges against six of the

hematoma of the back of the neck, about 2 inches in diameter; and (c) five punctured wounds in the chest,

accused[[3]] were dismissed for failure of the prosecution to establish a prima facie case against them. One

penetrating the lungs. Cause of death: internal hemorrhage from multiple fatal wounds in the chest.

of the defendants died 4 during the pendency of the case. After trial, the court a quo acquitted eight 5 of

Eugenio Barbosa: (a) lacerated wound in the occipital region, 3 inches in length and 1 cm. in depth; (b) two

the remaining defendants.

penetrating wounds in the abdomen, puncturing the intestines; (c) lacerated wounds on the right oxilla, 3

[[ ]]

[[ ]]

74

cm. in length and 2 cm. in depth; and (d) several bruises at the right and left lower extremities. Cause of

The same witnesses for the prosecution testifies that after killing Barbosa, the invading "OXO" members

death: shock, secondary to internal hermorrhage in the abdomen.

and sympathizers proceeded to hunt for Santos Cruz, another Tagalog like Carriego and Barbosa. Halili

Santos Cruz: (a) lacerated wound on the head, 2 inches in length; (b) fractured skull; (c) wound on the

testified, that he saw Peralta, Larita, Cogol and Tugaya take Santos Cruz to 4-A from 4-C; that Santos

upper lip cutting the lip in two; (d) seven punctured wounds in the chest, two of which were penetrating; (e)

Cruz knelt down and pleaded for his life, saying, "Maawa kayo sa akin. Marami akong anak;" that Luna

hematoma on the right hand; and (f) three punctured wounds on the left hand. Cause of death: fractured

and Peralta were unmoved as they stabbed Santos Cruz to death. Pabarlan declared that after the death

skull.

of Barbosa, Santos Cruz was brought to 4-A by the invading inmates but Cruz was able to slip back to his

Romeo Pineda, an inmate and first quarter-in-charge of brigade 4-B, testified that while he was taking his

cell only to be recaptured by Factora, Dosal and Luna and brought to near the fire escape where he was

breakfast with Jose Carriego, who was at the time the representative of the prisoners confined in 4-B to the

clubbed and stabbed to death by Parumog, Dosal, Factora and Peralta. Fontillas and Espino corroborated

inmate carcel, he "suddenly heard commotion" near the door of their brigade; that his fellow prisoners

the declarations of Halili and Pabarlan with respect to the killing of Santos Cruz, and both mentioned Larita

started shouting "pinapasok na tayo," as the invading inmates from brigade 4-A stampeded into 4-B; that

as one of the assailants of Cruz.

he and Carriego took hold of their clubs and stood at the end of the passageway; that he saw Carriego
surrender his club to Andres Factora, an "OXO" member from 4-A; that as Carriego started to walk away,

The trial judge summarized the evidence for the prosecution, thus:

Factora clubbed Carriego on the nape causing the latter to fall; that Factora turned up the face of his fallen
victim and struck him again in the face; that while Carriego was in this prostrate position, Amadeo Peralta
and Leonardo Dosal, companions of Factora, repeatedly stabbed him.

"... it clearly appears that the three killings in question were an offshoot of the rivalry between the two
organizations. All those who were killed, namely, Barbosa, Carriego and Santos Cruz, were Tagalogs and
well known as members if not sympathizers of the Sigue Sigue, while the accused so charged with their

The testimony of Pineda was corroborated in all its material points by Juanito Marayoc and Avelino Sauza,

killing were mostly members if not sympathizers of the Oxo organization. These three killings were sparked

both inmates of 4-B. These two prosecution witnesses identified Factora, Peralta and Dosal as the

by the commotion that happened in the plaza between 8:00 and 9:00 in the morning, while the prisoners

assailants of Carriego.

were preparing to go the mass ... It was evident that the clash that occurred in the plaza produced a chain
reaction among the members and followers of the two organizations. The inmates of Building No. 1, known

From 4-B, the invading inmates of 4-A went down and forcibly entered 4-C. According to Oscar Fontillas,

lair of the Sigue Sigues bolted the door of their cells and tried to invade Building No. 4 where a big number

an inmate of 4-C, he saw the prisoners from 4-A rushing toward their brigade; that among the invading

of the Oxo members and their sympathizers were confined, but, however, were forced to retreat by the

inmates who forced open the door of 4-C, with help from the inside provided by Visayan prisoners confined

timely arrival of the guards who sent them back to their building. When the members of the Oxo in Building

in 4-C, were Factora, Dosal, Angel Parumog, Gervacio Larita, Ernesto Fernandez and Jose Tariman; that

No. 4 learned about this, they went on a rampage looking for members of the Sigue Sigue or their

he saw Factora, Larita and Fernandez kill Barbosa, while the rest of their companies instructed the

sympathizers who were confined with them in the same building. As the evidence of the prosecution

Visayans to leave their cell and ordered the "Manila boys" (Tagalogs) to remain. Antonio Pabarlan, another

shows, the accused who were confined in Brigade 4-A of Building No. 4 led the attack. They destroyed the

inmate of 4-C, declared that he saw Peralta stab Barbosa, as Dosal, Larita, Florencio Luna, Parumog and

lock of their dormitories and with the help of their companions succeeded in bolting the door of the different

Factora clubbed the hapless victim. Another inmate of 4-C, Jose Halili, not only corroborated the testimony

brigades, and once they succeeded in bolting the doors of the different brigades, they went inside and tried

of Fontillas and Pabarlan but as well added grim details. He declared that while Barbosa was trying to hide

to segregate the Tagalogs from their group; that as soon as they discovered their enemies they clubbed

under a cot, he was beaten and stabbed to death by Dosal, Parumog, Factora and Fernandez, with Luna,

and stabbed them to death .

Larita, Pedro Cogol and Eilel Tugaya standing guard, armed with clubs and sharp instruments, in
readiness to repel any intervention from the Tagalog inmates. Carlos Espino, also confined in 4-C,

Admitting that he was one among several who killed Jose Carriego, Peralta nevertheless claims self-

declared that he saw Parumog, Peralta Factora and Larita assault and kill Barbosa.

defense. He testified that on the morning of the riot he was attacked by Carriego and Juan Estrella near

75

the door of 4-A while he was returning to his brigade from the chapel with some companions; that Carriego

Andres Factora declared that he clubbed Carriego and Santos Cruz under compulsion of his co-accused

clubbed him on the head; that he was able to parry the second blow of Carriego and then succeeded in

who threatened to kill him if he disobeyed their order; that he did not hit Barbosa anymore because the

squeezing Carriego's head with his hands; that forthwith he whipped out an improvised ice pick and

latter was already dead; that it was his co-accused who actually killed the three victims. Again, the

stabbed Carriego several times; that when he (Peralta) was already dizzy due to the head wound he

declarations of the prosecution witnesses, which were accorded full credence by the trial court, expose the

sustained from the clubbing, Carriego managed to slip away; that he then became unconscious, and when

guilt of Factora beyond reasonable doubt. In fact, according to Pineda, whose testimony was corroborated

he regained consciousness he found himself on a tarima with his head bandaged.

by Marayoc, it was Factora who started the mass assault by clubbing Carriego treacherously. Fontillas,

Peralta's declarations do not inspire belief. The impressive array of prosecution witnesses who saw him

Halili, Pabarlan and Espino pointed to Factora as one of the killers of Barbosa, while at least three

actively participate in the killing of the three victims pointed to him as the aggressor, not the aggrieved.

prosecution witnesses, namely, Pabarlan, Fontillas and Espino, saw Factora participate in the slaying of

Pineda, Marayoc and Sauza positively identified him as one of the assailants of Carriego. Contrary to the

Santos Cruz. The active participation of Factora in the killing, which is clear index of voluntariness, thus

pretensions of Peralta, Carriego an alleged "Sigue-Sigue" member, would not have attacked him, knowing

negates his claim of compulsion and fear allegedly engendered by his co-accused.

fully well that Building No. 4 was an "OXO" lair where the "Sigue-Sigue" members were outnumbered.
Anent the killing of Barbosa and Santos Cruz, Peralta failed to offer any explicit defense to rebut the

Angel Parumog, Gervasio Larita and Florencio Luna take refuge in the exculpatory device of alibi.

inculpatory declarations of prosecution witnesses Pabarlan and Espino who saw him participate in the

Parumog testified that he did not participate in the killing of the three inmates because he stayed during

killing of Barbosa and those of Halili, Fontillas and Espino who identified him as one of the murderers of

that entire hapless day in the office of the trustees for investigation after the fight in the plaza; that he was

Santos Cruz.

implicated in the killing by the prosecution witnesses because of his refusal to accede to their request to
testify against his co-accused; that he is not a Visayan but a Tagalog from Nueva Ecija. Larita claims that

For his part, Leonardo Dosal stated that he killed Santos Cruz, but also claims self-defense in exculpation.

he did not know about the killing until he was informed that three inmates had died; that on the day in

He declared that Santos Cruz, Jose Carriego, Juanita Espino, Carlos Espino and Oscar Fontillas invaded

question he was brought to the police trustee brigade for investigation after the incident in the plaza; that

4-A where he was confined; that a free-for-all forthwith ensued; that he then heard Santos Cruz call Carlos

he was escorted back to his brigade only in the afternoon. Luna likewise disclaims any knowledge of the

Espino, and advise the latter to go away as "I will be the one to kill that person (Dosal);" that with a sharp

killing and asserts that for the entire duration of the riot he remained in his cell (brigade 4-A).

instrument, Cruz hit him on the head and then on the nose; that as Cruz was about to hit him again, he got

The alibis of Parumog, Larita and Luna merit no credence when set against the positive testimonies of

hold of his ice pick and stabbed Cruz repeatedly until the latter fell.

prosecution witness identifying them as participants in the killing of Barbosa and Santos Cruz. Pabarlan,
Espino and Fontillas declared that Larita was one of the killers of Barbosa; Espino and Fontillas declared

Dosal's avowal is clearly belied by the positive testimonies of Pabarlan, Halili and Espino who saw him

that they saw Larita kill Santos Cruz; Pabarlan, Halili and Espino testified that they saw Parumog

participate in the killing of Santos Cruz. If it is true that Dosal killed Santos Cruz in self-defense when the

participate in the murder of Barbosa; Espino, Fontillas and Pabarlan stated that Parumog took part in the

latter together with his companions supposedly invaded Dosal's brigade (4-A), why is it that the body of

killing of Santos Cruz. Pabarlan and Halili declared that Luna participated in the fatal assault on Barbosa

Santos Cruz was found at the fire escape near the pasillo between 4-C and 4-D of the first floor of Bldg. 1

and Santos Cruz.

instead of in 4-A which is located in the upper floor? Moreover, Dosal failed to explain why he was seen in
4-C, which he does not deny, since he was an inmate of 4-A where he was allegedly attacked. With

The alibis of the accused are thus sufficiently overcome by strong evidence to the contrary. The defense of

respect to the murder of Carriego and Barbosa with which Dosal was also charged, he did not offer any

alibi is generally weak since it is easy to concoct. For this reason, courts view it with no small amount of

evidence in his behalf. Hence, the testimonies of Pineda, Marayoc and Sauza identifying him as one of the

caution, and accept it only when proved by positive, clear and satisfactory evidence. [[6]] In the case at bar,

killers of Carriego and those of Pabarlan, Halili and Espino implicating him in the death of Santos Cruz,

if Parumog and Larita were really confined in the police trustee brigade for investigation on the day of the

stand unrebutted.

incident, there should have been a record of the alleged investigation. But none was presented. The

76

testimony of Luna that throughout the riot he stayed in his cell is quite unnatural. He claims that he did not

conspiracy known to the common law is not an indictable offense in the Philippines.[[13]] An agreement to

even help his cellmates barricade their brigade with tarimas in order to delay if not prevent the entry of the

commit a crime is a reprehensible act from the view-point of morality, but as long as the conspirators do

invading inmates. According to him, he "just waited in one corner."

not perform overt acts in furtherance of their malevolent design, the sovereignty of the State is not

The rule is settled that the defense of alibi is worthless in the face of positive identification by prosecution

outraged and the tranquility of the public remains undisturbed. However, when in resolute execution of a

[[ ]]

witnesses pointing to the accused as particeps criminis. 7 Moreover, the defense of alibi is an issue of fact

common scheme, a felony is committed by two or more malefactors, the existence of a conspiracy

the resolution of which depends almost entirely on the credibility of witnesses who seek to establish it. In

assumes pivotal importance in the determination of the liability of the perpetrators. In stressing the

this respect the relative weight which the trial judge accords to the testimony of the witnesses must, unless

significance of conspiracy in criminal law, this Court in U.S. vs. Infante and Barreto[[14]]opined that

patently inconsistent without evidence on record, be accepted.[[8]] In the case at bar, the trial court, in

While it is true that the penalties cannot be imposed for the mere act of conspiring to commit a crime

dismissing the alibis of Parumog, Larita and Luna, said that "their mere denial cannot prevail over the

unless the statute specifically prescribes a penalty therefor, nevertheless the existence of a conspiracy to

positive testimony of the witnesses who saw them participate directly in the execution of the conspiracyto

commit a crime is in many cases a fact of vital importance, when considered together with the other

kill Barbosa, Carriego and Santos Cruz."

evidence of record, in establishing the existence, of the consummated crime and its commission by the

The killing of Carriego constitutes the offense of murder because of the presence of treachery as a

conspirators.

qualifying circumstance: Carriego was clubbed by Factora from behind, and as he lay prostrate and
defenseless, Peralta and Dosal stabbed him repeatedly on the chest. The blow on the nape and the

Once an express or implied conspiracy is proved, all of the conspirators are liable as co-principals

penetrating chest wounds were all fatal, according to Dr. Bartolome Miraflor. Abuse of superior strength

regardless of the extent and character of their respective active participation in the commission of the

qualified the killing of Barbosa and Santos Cruz to the category of murder. The victims, who were attacked

crime or crimes perpetrated in furtherance of the conspiracy because in contemplation of law the act of

individually were completely overwhelmed by their assailants' superiority in number and weapons and had

one is the act of all.[[15]] The foregoing rule is anchored on the sound principle that "when two or more

absolutely no chance at all to repel or elude the attack. All the attackers were armed with clubs or sharp

persons unite to accomplish a criminal object, whether through the physical volition of one, or all,

instruments while the victims were unarmed, as so found by the trial court. In fact, Halili testified that

proceeding severally or collectively, each individual whose evil will actively contributes to the wrong-doing

Barbosa was clubbed and stabbed to death while he was trying to hide under a cot, and Santos Cruz was

is in law responsible for the whole, the same as though performed by himself alone."[[16]] Although it is

killed while he was on his knees pleading for his life.

axiomatic that no one is liable for acts other than his own, "when two or more persons agree or conspire to
commit a crime, each is responsible for all the acts of the others, done in furtherance of the agreement or

The essential issue that next confronts us is whether conspiracy attended the commission of the murders.

conspiracy."[[17]] The imposition of collective liability upon the conspirators is clearly explained in one

The resolution of this issue is of marked importance because upon it depends the quantity and quality of

case[[18]] where this Court held that

the penalties that must be imposed upon each of the appellants.

... it is impossible to graduate the separate liability of each (conspirator) without taking into consideration
the close and inseparable relation of each of them with the criminal act, for the commission of which they

For this purpose, it is not amiss to briefly restate the doctrine on conspiracy, with particular emphasis on

all acted by common agreement ... The crime must therefore in view of the solidarity of the act and intent

the facets relating to its nature, the quantum of proof required, the scope and extent of the criminal liability

which existed between the ... accused, be regarded as the act of the band or party created by them, and

of the conspirators, and the penalties imposable by mandate of applicable law.

they are all equally responsible .

Doctrine. A conspiracy exists when two or more persons come to an agreement concerning the

Verily, the moment it is established that the malefactors conspired and confederated in the commission of

[[ ]]

commission of a felony and decide to commit it. 9 Generally, conspiracy is not a crime except when the
[[

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[[

]]

[[

]]

law specifically provides a penalty therefor as in treason, 10 rebellion 11 and sedition. 12 The crime of

the felony proved, collective liability of the accused conspirators attaches by reason of the conspiracy, and
the court shall not speculate nor even investigate as to the actual degree of participation of each of the

77

perpetrators present at the scene of the crime. Of course, as to any conspirator who was remote from

... from the acts performed by the defendants front the time they arrived at Consolacion's house to the

thesitus of aggression, he could be drawn within the enveloping ambit of the conspiracy if it be proved that

consummation of the offense of rape on her person by each and everyone of them, it clearly appears that

through his moral ascendancy over the rest of the conspirators the latter were moved or impelled to carry

they conspired together to rape their victim, and therefore each one is responsible not only for the rape

out the conspiracy.

committed personally by him, but also that committed by the others, because each sexual intercourse had,

In fine, the convergence of the wills of the conspirators in the scheming and execution of the crime amply

through force, by each one of the defendants with the offended was consummated separately and

justifies the imputation to all of them the act of any one of them. It is in this light that conspiracy is generally

independently from that had by the others, for which each and every one is also responsible because of

viewed not as a separate indictable offense, but a rule for collectivizing criminal liability.

the conspiracy.

The ensnaring nature of conspiracy is projected in bold relief in the cases of malversation and rape

The rule enunciated in People vs. Villa was reiterated in People vs. Quitain[[24]] where the appellant Teofilo

committed in furtherance of a common design.

Anchita was convicted of forcible abduction with double rape for having conspired and cooperated in the
sexual assault of the aggrieved woman, although he himself did not actually rape the victim. This Court

The crime of malversation is generally committed by an accountable public officer who misappropriates
[[

]]

observed:

public funds or public property under his trust. 19 However, in the classic case of People vs.

We have no doubt all in all that Teofilo Anchita took part in the sexual assault ... the accused inserted his

Ponte[[20]] this Court unequivocally held that a janitor and five municipal policemen, all of whom were not

fingers in the woman's organ, and widened it. Whether he acted out of lewdness or to help his brother-in-

accountable public officers, who conspired and aided a municipal treasurer in the malversation of public

law consummate the act, is immaterial; it was both maybe. Yet, surely, by his conduct, this prisoner

funds under the latter's custody, were principally liable with the said municipal treasurer for the crime of

conspired and cooperated, and is guilty.

malversation. By reason of conspiracy, the felonious act of the accountable public officer was imputable to
his co-conspirators, although the latter were not similarly situated with the former in relation to the object of

With respect to robbery in band, the law presumes the attendance of conspiracy so much so that "any

the crime committed. Furthermore, in the words of Groizard, "the private party does not act independently

member of a band who is present at the commission of a robbery by the band, shall be punished as

from the public officer; rather, he knows that the funds of which he wishes to get possession are in the

principal of any of the assaults committed by the band, unless it be shown that he attempted to prevent the

latter's charge, and instead of trying to abstract them by circumventing the other's vigilance he resorts to

same."[[25]] In this instance, conspiracy need not be proved, as long as the existence of a band is clearly

corruption, and in the officer's unfaithfulness seeks and finds the most reprehensible means of

established. Nevertheless, the liability of a member of the band for the assaults committed by his group is

accomplishing a deed which by having a public officer as its moral instrument assumes the character of a

likewise anchored on the rule that the act of one is the act of all.

[[

]]

[[

]]

social crime." 21 In an earlier case 22 a non-accountable officer of the Philippine Constabulary who

Proof of conspiracy. While conspiracy to commit a crime must be established by positive evidence,

conspired with his superior, a military supply officer, in the malversation of public funds was adjudged guilty

[[

as co-principal in the crime of malversation, although it was not alleged, and in fact it clearly appeared, that

secrecy, it can seldom be proved by direct evidence. [[28]] Consequently, competent and convincing

the funds misappropriated were not in his custody but were under the trust of his superior, an accountable

circumstantial evidence will suffice to establish conspiracy. According to People vs. Cabrera,

public officer.

[[

In rape, a conspirator is guilty not only of the sexual assault he personally commits but also of the separate

vary according to the purposes to be accomplished. If it be proved that the defendants pursued by their

and distinct crimes of rape perpetrated by his co-conspirators. He may have had carnal knowledge of the

acts the same object, one performing one part and another another part of the same, so as to complete it,

offended woman only once but his liability includes that pertaining to all the rapes committed in furtherance

with a view to the attainment of the same object, one will be justified in the conclusion that they were

[[

]]

of the conspiracy. Thus, in People vs. Villa, 23 this Court held that

26]] direct proof is not essential to show conspiracy.[[27]] Since by it nature, conspiracy is planned in utmost

29]] conspiracies are generally proved by a number of indefinite acts, conditions, and circumstances which

engaged in a conspiracy to effect the object." Or as elucidated in People vs. Carbonel[[30]] the presence of
the concurrence of minds which is involved in conspiracy may be inferred from "proofs of facts and

78

circumstances which, taken together, apparently indicate that they are merely parts of some complete

There is ample and positive evidence on record that appellant Jose Guico was absent not only from the

whole. If it is proved that two or more persons aimed by their acts towards the accomplishment of the

second meeting but likewise from the robbery itself. To be sure, not even the decision under appeal

same unlawful object, each doing a part so that their acts, though apparently independent, were in fact

determined otherwise. Consequently, even if Guico's participation in the first meeting sufficiently involved

connected and cooperative, indicating a closeness of personal association and a concurrence of

him with the conspiracy (as he was the one who explained the location of the house to be robbed in

sentiment, a conspiracy may be inferred though no actual meeting among to concert means is proved ..."

relation to the surrounding streets and the points thereof through which entrance and exit should be

[[

]]

In two recent cases, 31 this Court ruled that where the acts of the accused, collectively and individually,

effected), such participation and involvement, however, would be inadequate to render him criminally liable

clearly demonstrate the existence of a common design toward the accomplishment of the same unlawful

as a conspirator. Conspiracy alone, without the execution of its purpose, is not a crime punishable by law,

purpose, conspiracy is evident.

except in special instances (Article 8, Revised Penal Code) which, however, do not include robbery.

Conspiracy presupposes the existence of a preconceived plan or agreement; however, to establish

Imposition of multiple penalties where conspirators commit more than one offense. Since in conspiracy, the

conspiracy, "it is not essential that there be proof as to previous agreement to commit a crime, it being

act of one is the act of all, then, perforce, each of the conspirators is liable for all of the crimes committed

sufficient that the malefactors committed shall have acted in concert pursuant to the same

in furtherance of the conspiracy. Consequently, if the conspirators commit three separate and distinct

[[

]]

objective." 32 Hence, conspiracy is proved if there is convincing evidence to sustain a finding that the

crimes of murder in effecting their common design and purpose, each of them is guilty of three murders

malefactors committed an offense in furtherance of a common objective pursued in concert.

and shall suffer the corresponding penalty for each offense. Thus in People vs. Masin,[[36]] this Court held:

Liability of conspirators. A time-honored rule in the corpus of our jurisprudence is that once conspiracy is

... it being alleged in the information that three crimes were committed not simultaneously indeed but

proved, all of the conspirators who acted in furtherance of the common design are liable as co-principals.

successively, inasmuch as there was, at least, solution of continuity between each other, the accused

[[

33]] This rule of collective criminal liability emanates from the ensnaring nature of conspiracy. The

(seven in all) should be held responsible for said crimes. This court holds that the crimes are murder ... In

concerted action of the conspirators in consummating their common purpose is a patent display of their

view of all these circumstances and of the frequently reiterated doctrine that once conspiracy is proven

evil partnership, and for the consequences of such criminal enterprise they must be held solidarity liable.

each and every one of the conspirators must answer for the acts of the others, provided said acts are the

However, in order to hold an accused guilty as co-principal by reason of conspiracy, it must be established

result of the common plan or purpose ... it would seem evident that the penalty that should be imposed

that he performed an overt act in furtherance of the conspiracy, either by actively participating in the actual

upon each of the appellants for each of their crimes should be the same, and this is the death penalty ...

commission of the crime, or by lending moral assistance to his co-conspirators by being present at the

(emphasis supplied).

scene of the crime, or by exerting moral ascendancy over the rest of the conspirators as to move them to

In the aforesaid case, however, the projected imposition of three death penalties upon each of the

executing the conspiracy. The difference between an accused who is a principal under any of the three

conspirators for the three murders committed was not carried out due to the lack of the then requisite

categories enumerated in Art. 17 of the Revised Penal Code and a co-conspirator who is also a principal is

unanimity in the imposition of the capital penalty.

that while the former's criminal liability is limited to his own acts, as a general rule, the latter's responsibility
includes the acts of his fellow conspirators.

In another case,[[37]] this Court, after finding that conspiracy attended the commission of eleven murders,

In People vs. Izon, et al.,[[34]] this Court acquitted appellant Francisco Robles, Jr., who was convicted by

said through Mr. Justice Tuason:

the trial court of robbery with homicide as a conspirator, on the ground that although he may have been

Some members of this Court opine that the proper penalty is death, under the circumstances of the case,

present when the conspiracy to rob was proposed and made, "Robles uttered not a word either of approval

but they fall short of the required number for the imposition of this punishment. The sentence consequently

or disapproval. There are authorities to the effect that mere presence at the discussion of a conspiracy,

is reclusion perpetua; buteach appellant is guilty of as many crimes of murder as there were deaths

even approval of it, without any active participation in the same, is not enough for purposes of conviction."

(eleven) and should be sentenced to life imprisonment for each crime, although this may be a useless

In a more recent case,[[35]] this Court, in exonerating one of the appellants, said:

formality for in no case can imprisonment exceed forty years. (Emphasis supplied.)

79

In People vs. Masani,[[38]] the decision of the trial court imposing only one life imprisonment for each of the

penalty is reclusion perpetua to death[[42]]irrespective of the number of homicides perpetrated by reason or

accused was modified by this Court on appeal on the ground that "inasmuch as their (the conspirators')

on occasion of the robbery.

combined attack resulted in the killing of three persons, they should be sentenced to suffer said penalty

In Balaba, the information charged the accused with triple murder. The accused went to trial without

(reclusion perpetua) for each of the three victims (crimes)." (Emphasis supplied.)

objection to the said information which charged him with more than one offense. The trial court found the

It is significant to note that in the abovementioned cases, this Court consistently stressed that once

accused guilty of two murders and one homicide but it imposed only one death penalty. In its review en

conspiracy is ascertained, the culpability of the conspirators is not only solidary (all co-principals) but also

consulta, this Court modified the judgment by imposing separate penalties for each of the three offenses

multiple in relation to the number of felonies committed in furtherance of the conspiracy. It can also be said

committed. The Court, thru Mr. Justice Carson (with Mr. Justice Malcolm dissenting with respect to the

that had there been a unanimous Court in the Masin and Macaso cases, multiple death penalties would

imposition of two death penalties), held:

have been imposed upon all the conspirators.

The trial judge was erroneously of the opinion that the prescribed penalties for the offenses of which the

Legality and practicality of imposing multiple death penalties upon conspirators. An accused who was

accused was convicted should be imposed in accord with the provisions of article 89 of the Penal Code.

charged with three distinct crimes of murder in a single information was sentenced to two death penalties

That article is only applicable to cases wherein a single act constitutes two or more crimes, or when one

[[

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for two murders, 39 and another accused to thirteen (13) separate death penalties for the 13 killings he
[[

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offense is a necessary means for committing the other. (U.S. vs. Ferrer, 1 Phil. Rep., 56)

perpetrated. 40 Therefore there appears to be no legal reason why conspirators may not be sentenced to

It becomes our duty, therefore, to determine what penalty or penalties should have been imposed upon the

multiple death penalties corresponding to the nature and number of crimes they commit in furtherance of a

accused upon conviction of the accused of three separate felonies charged in the information.

conspiracy. Since it is the settled rule that once conspiracy is established, the act of one conspirator is
attributable to all, then each conspirator must be held liable for each of the felonious acts committed as a

There can be no reasonable doubt as to the guilt of the convict of two separate crimes

result of the conspiracy, regardless of the nature and severity of the appropriate penalties prescribed by

of asesinato (murder) marked with the generic aggravating circumstances mentioned in the decision of the

law.

trial judge ... It follows that the death penalty must and should be imposed for each of these offenses .

The rule on the imposition of multiple penalties where the accused is found guilty of two or more separate

Unless the accused should be acquitted hereafter on appeal of one or both theasesinatos with which he is

and distinct crimes charged in one information, the accused not having interposed any objection to the

charged in the information, it would seem to be a useless formality to impose separate penalties for each

multiplicity of the charges, was enunciated in the leading case of U.S. vs. Balaba,[[41]] thus: Upon

of the offenses of which he was convicted, in view of the nature of the principal penalty; but having in mind

conviction of two or more offenses charged in the complaint or information, the prescribed penalties for

the possibility that the Chief Executive may deem it proper to grant a pardon for one or more of the

each and all of such offenses may be imposed, to be executed in conformity with the provisions of article

offenses without taking action on the others; and having in mind also the express provisions of the above

87 of the Penal Code [now article 70 of the Revised Penal Code]. In other words, all the penalties

cited article 87 of the Penal Code, we deem it proper to modify the judgment entered in the court below by

corresponding to the several violations of law should be imposed. Conviction for multiple felonies demands

substituting for the penalty imposed by the trial judge under the provisions of article 89 of the Code, the

the imposition of multiple penalties.

death penalty prescribed by law for each of the two separate asesinatos of which he stands convicted, and

The two conceptual exceptions to the foregoing rule, are the complex crime under article 48 of the Revised

the penalty of 14 years, 8 months and 1 day of reclusion temporal (for the separate crime of homicide) ...

Penal Code and the special complex crime (like robbery with homicide). Anent an ordinary complex crime

these separate penalties to be executed in accord with the provisions of article 87 of the Penal Code.

falling under article 48, regardless of the multiplicity of offenses committed, there is only one imposable

(Emphasis supplied.)

penalty the penalty for the most serious offense applied in its maximum period. Similarly, in special

The doctrine in Balaba was reiterated in U.S. vs. Jamad[[43]] where a unanimous Court, speaking again

complex crimes, there is but a single penalty prescribed by law notwithstanding the number of separate

thru Mr. Justice Carson (with Mr. Justice Malcolm concurring in the result in view of the Balaba ruling),

felonies committed. For instance, in the special complex crime of robbery with hommicide the imposible

opined:

80

For all the offenses of which the accused were convicted in the court below, the trial judge imposed the

1. In the imposition of the penalties, the order of their respective severity shall be followed so that they may

death penalty, that is to say the penalty prescribed for the most serious crime committed, in its maximum

be executed successively or as nearly as may be possible, should a pardon have been granted as to the

degree, and for this purpose made use of the provisions of article 89 of the Penal Code [now article 48 of

penalty or penalties first imposed, or should they have been served out.

the Revised Penal Code]. But as indicated in the case of the United States vs. Balaba, recently decided
wherein the controlling facts were substantially similar to those in the case at bar, "all of the penalties

The essence and language, with some alterations in form and in the words used by reason of style, of the

corresponding to the several violations of law" should have been imposed under the express provisions of

above-cited provisions have been preserved in article 70 of theRevised Penal Code which is the product of

article 87 [now engrafted in article 70 of the Revised Penal Code] and under the ruling in that case, the trial

the merger of articles 87 and 88 of the old Penal Code. Article 70 provides:

court erred in applying the provision of article 89 of the code.

When the culprit has to serve two or more penalties, he shall serve them simultaneously if the nature of the

We conclude that the judgment entered in the court below should be reversed, ... and that the following

penalties will so permit; otherwise, the following rules shall be observed:

separate penalties should be imposed upon him [the accused Jamad], to be executed in accordance with
article 87 of the Penal Code: (1) The penalty of death for the parricide of his wife Aring; (2) the penalty of
life imprisonment for the murder of Labonete; (3) the penalty of life imprisonment for the murder of Torres;
(4) the penalty of 12 years and one day of cadena temporal for the frustrated murder of Taclind .
The doctrine in Balaba was reechoed in People vs. Guzman,[[44]] which applied the pertinent provisions of
the Revised Penal Code, where this Court, after finding the accused liable as co-principals because they
acted in conspiracy, proceeded to stress that where an "information charges the defendants with the
commission of several crimes of murder and frustrated murder, as they failed to object to the multiplicity of
the charges made in the information, they can be found guilty thereof and sentenced accordingly for as
many crimes the information charges them, provided that they are duly established and proved by the
evidence on record." (Emphasis supplied.)
The legal and statutory justification advanced by the majority in Balaba for imposing all the penalties (two
deaths and one life imprisonment) corresponding to the offense charged and proved was article 87 of the
old Penal Code which provided:
When a person is found guilty of two or more felonies or misdemeanors, all the penalties corresponding to
the several violations of law shall be imposed, the same to be simultaneously served, if possible, according
to the nature and effects of such penalties.
in relation to article 88 of the old Code which read:

In the imposition of the penalties, the order of their respective severity shall be followed so that they may
be executed successively or as nearly as may be possible, should a pardon have been granted as to the
penalty or penalties first imposed, or should they have been served out.
Although article 70 does not specifically command, as the former article 87 clearly did, that "all the
penalties corresponding to the several violations of law shall be imposed," it is unmistakable, however, that
article 70 presupposes that courts have the power to impose multiple penalties, which multiple penal
sanctions should be served either simultaneously or successively. This presumption of the existence of
judicial power to impose all the penalties corresponding to the number and nature of the offenses charged
and proved is manifest in the opening sentence of article 70: "When the culprit has to serve two or more
penalties, he shall serve them simultaneously if the nature of the penalties will so permit ..." (Emphasis
supplied.) Obviously, the two or more penalties which the culprit has to serve are those legally imposed by
the proper court. Another reference to the said judicial prerogative is found in the second paragraph of
article 70 which provides that "in the imposition of the penalties, the order of their respective severity shall
be followed ..." Even without the authority provided by article 70, courts can still impose as many penalties
as there are separate and distinct offenses committed, since for every individual crime committed, a
corresponding penalty is prescribed by law. Each single crime is an outrage against the State for which the
latter, thru the courts ofjustice, has the power to impose the appropriate penal sanctions.
With respect to the imposition of multiple death penalties, there is no statutory prohibition or jurisprudential

When all or any of the penalties corresponding to the several violations of the law can not be

injunction against it. On the contrary, article 70 of theRevised Penal Code presumes that courts have the

simultaneously executed, the following rules shall be observed with regard thereto:

power to mete out multiple penalties without distinction as to the nature and severity of the penalties.
Moreover, our jurisprudence supports the imposition of multiple death penalties as initially advocated
in Balaba and thunderously reechoed in Salazar where the accused was sentenced on appeal to thirteen

81

(13) death penalties. Significantly, the Court in Balabaimposed upon the single accused mixed multiple

proper penitentiary authorities would exercise judicious restraint in recommending clemency or leniency in

penalties of two deaths and one life imprisonment.

his behalf.

The imposition of multiple death penalties is decried by some as a useless formality, an exercise in futility.
It is contended, undeniably enough, that a death convict like all mortals, has only one life to forfeit. And

Granting, however, that the Chief Executive, in the exercise of his constitutional power to pardon (one of

because of this physiological and biological attribute of man, it is reasoned that the imposition of multiple

the presidential prerogatives which is almost absolute) deems it proper to commute the multiple death

death penalties is impractical and futile because after the service of one capital penalty, the execution of

penalties to multiple life imprisonments, then the practical effect is that the convict has to serve the

the rest of the death penalties will naturally be rendered impossible. The foregoing opposition to the

maximum of forty (40) years of multiple life sentences. If only one death penalty is imposed, and then is

multiple imposition of death penalties suffers from four basic flaws: (1) it fails to consider the legality of

commuted to life imprisonment, the convict will have to serve a maximum of only thirty years

imposing multiple capital penalties; (2) it fails to distinguish between imposition of penalty and service of

corresponding to a single life sentence.

sentence; (3) it ignores the fact that multiple death sentences could be served simultaneously; and (4) it
overlooks the practical merits of imposing multiple death penalties.

Reverting now to the case at bar, it is our considered view that the trial court correctly ruled that conspiracy
attended the commission of the murders. We quote with approval the following incisive observations of the

The imposition of a penalty and the service of sentence are two distinct, though related, concepts. The

court a quo in this respect:

imposition of the proper penalty or penalties is determined by the nature, gravity and number of offenses

Although, there is no direct evidence of conspiracy, the Court can safely say that there are several

charged and, proved, whereas service of sentence is determined by the severity and character of the

circumstances to show that the crime committed by the accused was planned. The following

penalty or penalties imposed. In the imposition of the proper penalty or penalties, the court does not

circumstances show beyond any doubt the acts of conspiracy: First, all those who were killed, Barbosa,

concern itself with the possibility or practicality of the service of the sentence, since actual service is a

Santos Cruz and Carriego, were Tagalogs. Although there were many Tagalogs like them confined in

contingency subject to varied factors like successful escape of the convict, grant of executive clemency or

Building 4, these three were singled out and killed thereby showing that their killing has been

natural death of the prisoner. All that go into the imposition of the proper penalty or penalties, to reiterate,

planned. Second, the accused were all armed with improvised weapons showing that they really prepared

are the nature, gravity and number of the offenses charged and proved and the corresponding penalties

for the occasion. Third, the accused accomplished the killing with team work precision going from one

prescribed by law.

brigade to another and attacking the same men whom they have previously marked for liquidation and

Multiple death penalties are not impossible to serve because they will have to be executed simultaneously.

lastly, almost the same people took part in the killing of Carriego, Barbosa and Santos Cruz.

A cursory reading of article 70 will show that there are only two modes of serving two or more (multiple)

It is also important to note that all the accused were inmates of brigade 4-A; that all were from either the

penalties: simultaneously or successively. The first rule is that two or more penalties shall be served

Visayas or Mindanao except Peralta who is from Masbate and Parumog who hails from Nueva Ecija; that

simultaneously if the nature of the penalties will so permit. In the case of multiple capital penalties, the

all were either "OXO" members or sympathizers; and that all the victims were members of the "Sigue-

nature of said penal sanctions does not only permit but actually necessitates simultaneous service.

Sigue" gang.

The imposition of multiple death penalties, far from being a useless formality, has practical importance. The
sentencing of an accused to several capital penalties is an indelible badge of his extreme criminal
perversity, which may not be accurately projected by the imposition of only one death sentence irrespective
of the number of capital felonies for which he is liable. Showing thus the reprehensible character of the
convict in its real dimensions, the possibility of a grant of executive clemency is justifiably reduced in no
small measure. Hence, the imposition of multiple death penalties could effectively serve as a deterrent to
an improvident grant of pardon or commutation. Faced with the utter delinquency of such a convict, the

The evidence on record proves beyond peradventure that the accused acted in concert from the moment
they bolted their common brigade, up until the time they killed their last victim, Santos Cruz. While it is true
that Parumog, Larita and Luna did not participate in the actual killing of Carriego, nonetheless, as coconspirators they are equally guilty and collectively liable for in conspiracy the act of one is the act of all. It
is not indispensable that a co-conspirator should take a direct part in every act and should know the part
which the others have to perform. Conspiracy is the common design to commit a felony; it is not

82

participation in all the details of the execution of the crime. All those who in one way or another help and
[[

]]

ACCORDINGLY, the judgment a quo is hereby modified as follows: Amadeo Peralta, Andres Factora,

cooperate in the consummation of a felony previously planned are co-principals. 45 Hence, all of the six

Leonardo Dosal, Angel Parumog, Gervasio Larita and Florencio Luna are each pronounced guilty of three

accused are guilty of the slaughter of Carriego, Barbosa and Santos Cruz each is guilty of three

separate and distinct crimes of murder, and are each sentenced to three death penalties; all of them shall,

separate and distinct crimes of murder.

jointly and severally, indemnify the heirs of each of the three deceased victims in the sum of P12,000;

We cannot agree, however, with the trial court that evident premeditation was also present. The facts on

[[

record and the established jurisprudence on the matter do not support the conclusion of the court a

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Sanchez, Castro, Angeles, Fernando and Capistrano,

quo that evident premeditation "is always present and inherent in every conspiracy." Evident premeditation

JJ., concur.

is not inherent in conspiracy as the absence of the former does not necessarily negate the existence of the

Zaldivar, J., is on leave.

[[

]]

latter. 46 Unlike in evident premeditation where a sufficient period of time must elapse to afford full
opportunity for meditation and reflection for the perpetrator to deliberate on the consequences of his
intended deed, conspiracy arises at the very instant the plotters agree, expressly or impliedly, to commit
the felony and forthwith decide to commit it.[[47]] This view finds added support in People vs. Custodia,
[[

48]] wherein this Court stated:

Under normal conditions, where the act of conspiracy is directly established, with proof of the attendant
deliberation and selection of the method, time and means of executing the crime, the existence of evident
premeditation can be taken for granted. In the case before us, however, no such evidence exists; the
conspiracy is merely inferred from the acts of the accused in the perpetration of the crime. There is no
proof how and when the plan to kill Melanio Balancio was hatched, or what time elapsed before it was
carried out; we are, therefore, unable to determine if the appellants enjoyed "sufficient time between its
inception and its fulfillment dispassionately to consider and accept the consequences." (cf. People vs.
Bangug, 52 Phil. 91.) In other words, there is no showing of the opportunity of reflection and the
persistence in the criminal intent that characterize the aggravating circumstance of evident premeditation
(People vs. Mendoza, 91 Phil. 58; People vs. Iturriaga, 47 Off. Gaz., [Supp to No. 12] 166; People vs.
Lesada 70 Phil., 525.)
Not a single extenuating circumstance could be appreciated in favor of any of the six accused, as they did
neither allege nor prove any.
In view of the attendance of the special aggravating circumstance of quasi-recidivism, as all of the six
accused at the time of the commission of the offenses were serving sentences[[49]] in the New Bilibid
Prison at Muntinlupa by virtue of convictions by final judgments the penalty for each offense must be
imposed in its maximum period, which is the mandate of the first paragraph of article 160 of the Revised
Penal Code. Viada observes, in apposition, that the severe penalty imposed on a quasi-recidivist is
justified because of his perversity and incorrigibility. [[50]]

51]]each will pay one-sixth of the costs.

83
THE UNITED STATES, plaintiff-appelle,
vs.
MANUEL BAUTISTA, defendant-appellant.
Mauricio Ilagan for appellant.
Attorney-General Avancea for appellee.
JOHNSON, J.:
This defendant was charged with the crime of assault upon agents of the authorities and insulting them.
Upon said complaint the defendant was arrested, arraigned, tried, found guilty, and sentenced by the
Honorable Vicente Nepomuceno to be imprisoned for a period of four years two months and one day
of prision correccional, with the accessory penalties of article 61 of the Penal Code, to pay a fine of P300,
and in case of insolvency to suffer subsidiary imprisonment, in accordance with the provisions of the law,
and to pay the costs. From that sentence the defendant appealed to this court.
In this court the appellant alleges that the evidence adduced during the trial of the cause was not sufficient
to show that he was guilty of the crime charged in the complaint.
The record shows that some time in the month of November, 1914, an order of arrest was issued for the
defendant and placed in the hands of the chief of police of the municipality of Gerona. On or about the 15th
of November, the chief of police, accompanied by another policeman, went to the house where the
defendant was staying for the purpose of making the arrest. Upon arrival at the house, inquiry was made of
some of the occupants whether or not the defendant was there. Upon being informed that he was in the
house, the policeman who accompanied the chief of police entered the house without permission and
attempted to arrest the defendant without explaining to him the cause or nature of his presence there. The
defendant, according to the declaration of the chief of police, resisted the arrest, calling to his neighbors for
assistance, using the following language: "Come here; there are some bandits here and they are abusing
me." Many of his neighbors, hearing his cry, according to the testimony of the chief of police, immediately
came to his assistance and surrounded his house.
The policeman, who accompanied the chief, in his declaration said that when he attempted to arrest the
defendant, the defendant said to him: "Why do you enter my house, you shameless brigands?" and called
to one Basilio, saying:
There are some bandits here!"
Republic of the Philippines
SUPREME COURT
Manila

EN BANC
G.R. No. L-10678

August 17, 1915

The policeman further testified that he then informed the defendant that he came there for the purpose of
arresting him, and the defendant asked him if he had an order of arrest, which question was answered by
the policeman in the affirmative. Said policeman further testified that immediately after he had notified the
defendant that he was a policeman and had an order of arrest, the defendant submitted to the arrest
without further resistance or objection.
The whole record shows that the resistance given by the defendant was done under the belief that the
persons who had entered his house were tulisanes. The record also shows, by the declaration of the
witnesses for the prosecution, that as soon as he had been informed that they were officers of the law,
armed with an order of arrest, he peaceably submitted and accompanied them. We do not believe that the
law contemplates the punishment of persons for resistance of the authorities under circumstances such as

84
those which are disclosed in the present case. If the defendant believed that those who had entered his
house were, in fact, tulisanes, he was entirely justified in calling his neighbors and making an attempt to
expel them from his premises.
After a careful examination of the evidence, we are of the opinion that the record does not disclose
sufficient facts to justify the sentence imposed by the lower court. The defendant is not guilty of the crime
described in the complaint. The sentence of the lower court is therefore hereby revoked, the complaint is
hereby ordered dismissed, and the defendant is discharged from the custody of the law. So ordered.
Arellano, C.J., Torres, Carson, Trent, and Araullo, JJ., concur.

FERNANDO, J.:
This petition for certiorari to review a decision of respondent Court of Appeals was given due course
because it was therein vigorously asserted that legal questions of gravity and of moment, there being
allegations of an unwarranted departure from and a patent misreading of applicable and controlling
decisions, called for determination by this Tribunal. The brief for petitioners-spouses, however, failed to
substantiate such imputed failings of respondent Court. The performance did not live up to the promise. On
the basis of the facts as duly found by respondent Court, which we are not at liberty to disregard, and the
governing legal provisions, there is no basis for reversal. We affirm.
The nature of the case presented before the lower court by private respondent Angelina D. Guevara,
assisted by her spouse, Juan B. Guevara, as plaintiffs, was noted in the decision of respondent Court of
Appeals thus: "Plaintiff seeks recovery of `one (1) lady's diamond ring 18 cts. white gold mounting, with
one (1) 2.05 cts. diamond-solitaire, and four (4) brills 0.10 cts. total weight' which she bought on October
27, 1947 from R. Rebullida, Inc."1 Then came a summary of now respondent Guevara of her evidence:
"Plaintiff's evidence tends to show that around October 11, 1953 plaintiff while talking to Consuelo S. de
Garcia, owner of La Bulakea restaurant recognized her ring in the finger of Mrs. Garcia and inquired
where she bought it, which the defendant answered from her comadre. Plaintiff explained that that ring was
stolen from her house in February, 1952. Defendant handed the ring to plaintiff and it fitted her finger. Two
or three days later, at the request of plaintiff, plaintiff, her husband Lt. Col. Juan Guevara, Lt. Cementina of
Pasay PD, defendant and her attorney proceeded to the store of Mr. Rebullida to whom they showed the
ring in question. Mr. Rebullida a examined the ring with the aid of high power lens and after consulting the
stock card thereon, concluded that it was the very ring that plaintiff bought from him in 1947. The ring was
returned to defendant who despite a written request therefor failed to deliver the ring to plaintiff. Hence, this
case. Later on when the sheriff tried to serve the writ of seizure (replevin), defendant refused to deliver the
ring which had been examined by Mr. Rebullida, claiming it was lost."2

Republic of the Philippines

SUPREME COURT
Manila
EN BANC

G.R. No. L-20264 January 30, 1971

CONSUELO S. DE GARCIA and ANASTACIO GARCIA, petitioners,
vs.
HON. COURT OF APPEALS, ANGELINA D. GUEVARA and JUAN B. GUEVARA, respondents.
Deogracias T. Reyes and Jose M. Luison for petitioners.
Tolentino and Garcia and D.R. Cruz for private respondents.

How the defendant, Consuelo S. de Garcia, the present petitioner before us, along with her husband
Anastacio Garcia, sought to meet plaintiff's claim was narrated thus: "On the other hand, defendant denied
having made any admission before plaintiff or Mr. Rebullida or the sheriff. Her evidence tends to show that
the ring (Exhibit 1) was purchased by her from Mrs. Miranda who got it from Miss Angelita Hinahon who in
turn got it from the owner, Aling Petring, who was boarding in her house; that the ring she bought could be
similar to, but not the same ring plaintiff purchased from Mr. Rebullida which was stolen; that according to
a pawn-shop owner the big diamond on Exhibit 1 was before the trial never dismantled. When dismantled,
defendant's diamond was found to weigh 2.57 cts."3
Plaintiff lost in the lower court. She elevated the matter to respondent Court of Appeals with the judgment
of the lower court being reversed. It is this decision now under review.
These are the facts as found by respondent Court of Appeals: "That the ring brought by the parties for
examination by Rafael Rebullida on December 14, 1953 was the same ring purchased by plaintiff from R.
Rebullida, Inc. on October 27, 1947 and stolen in February, 1952 has been abundantly established by
plaintiff's evidence. Before plaintiff lost the ring, she had been wearing it for six years and became familiar
with it. Thus, when she saw the missing ring in the finger of defendant, she readily and definitely identified
it. Her identification was confirmed by Mr. Rafael Rebullida, whose candid testimony is entitled to great
weight, with his 30 years experience behind him in the jewelry business and being a disinterested witness
since both parties are his customers. Indeed, defendant made no comment when in her presence

85
Rebullida after examining the ring and stock card told plaintiff that that was her ring, nor did she answer
plaintiff's letter of demand, ... asserting ownership. Further confirmation may be found in the extra-judicial
admissions, contained in defendant's original and first amended answers ..."4
These further facts likewise appeal therein: "The foregoing proof is not counter-balanced by the denial on
the part of defendant or the presentation of the ring, Exhibit I, which has a diamond-solitaire 2.57 cts., or
much heavier than the lost diamond weighing 2.05 cts. only. It is noteworthy that defendant gave a rather
dubious source of her ring. Aling Petring from whom the ring supposedly came turned out to be a
mysterious and ephemeral figure. Miss Hinahon did not even know her true and full name, nor her
forwarding address. She appeared from nowhere, boarded three months in the house of Miss Hinahon
long enough to sell her diamond ring, disappearing from the scene a week thereafter. Indeed, the case
was terminated without any hearing on the third-party and fourth-party complaints, which would have
shown up the falsity of defendant's theory. Moreover, Mrs. Baldomera Miranda, third-party defendant, who
tried to corroborate defendant on the latter's alleged attempt to exchange the ring defendant bought
through her, is [belied] by her judicial admission in her Answer that appellee `suggested that she would
make alterations to the mounting and structural design of the ring to hide the true identity and appearance
of the original one' (Cunanan vs. Amparo, 45 O.G. 3796). Finally, defendant is refuted by her own extrajudicial admissions ... although made by defendant's counsel. For an attorney who acts as counsel of
record and is permitted to act such, has the authority to manage the cause, and this includes the authority
to make admission for the purpose of the litigation... Her proffered explanation that her counsel
misunderstood her is puerile because the liability to error as to the identity of the vendor and the exchange
of the ring with another ring of the same value, was rather remote."5
It is in the light of the above facts as well as the finding that the discrepancy as to the weight between the
diamond-solitaire in Exhibit I and the lost diamond was due to defendant having "substituted a diamondsolitaire of plaintiff with a heavier stone" that the decision was rendered, respondent Court reversing the
lower court and ordering defendant, now petitioner Consuelo S. de Garcia, to return plaintiff's ring or fact
value of P1,000.00 and costs, as well as to pay plaintiff P1,000.00 as attorney's fee and P1,000.00 as
exemplary damages. Hence this appeal.
To repeat, there is no occasion to reverse respondent Court. It correctly applied the law to the facts as
found.
1. The controlling provision is Article 559 of the Civil Code. It reads thus: "The possession of movable
property acquired in good faith is equivalent to a title. Nevertheless, one who has lost any movable or has
been unlawfully deprived thereof may recover it from the person in possession of the same. If the
possessor of a movable lost of which the owner has been unlawfully deprived, has acquired it in good faith
at a public sale, the owner cannot obtain its return without reimbursing the price paid therefor." Respondent
Angelina D. Guevara, having been unlawfully deprived of the diamond ring in question, was entitled to
recover it from petitioner Consuelo S. de Garcia who was found in possession of the same. The only
exception the law allows is when there is acquisition in good faith of the possessor at a public sale, in
which case the owner cannot obtain its return without reimbursing the price. As authoritative interpreted in
Cruz v. Pahati, 6 the right of the owner cannot be defeated even by proof that there was good faith by the
acquisition by the possessor. There is a reiteration of this principle in Aznar v. Yapdiangco.7Thus: "Suffice it
to say in this regard that the right of the owner to recover personal property acquired in good faith by
another, is based on his being dispossessed without his consent. The common law principle that where
one of two innocent persons must suffer by a fraud perpetrated by the another, the law imposes the loss
upon the party who, by his misplaced confidence, has enabled the fraud to be committed, cannot be
applied in a case which is covered by an express provision of the new Civil Code, specifically Article 559.
Between a common law principle and statutory provision, the latter must prevail in this jurisdiction." 8

2. It is thus immediately apparent that there is no merit to the contention raised in the first assigned error
that her possession in good faith, equivalent to title, sufficed to defeat respondent Guevara's claim. As the
above cases demonstrate, even on that assumption the owner can recover the same once she can show
illegal deprivation. Respondent Court of Appeals was so convinced from the evidence submitted that the
owner of the ring in litigation is such respondent. That is a factual determination to which we must pay
heed. Instead of proving any alleged departure from legal norms by respondent Court, petitioner would
stress Article 541 of the Civil Code, which provides: 'A possessor in the concept of owner has in his favor
the legal presumption that he possesses with a just title and he cannot be obliged to show or prove it." She
would accord to it a greater legal significance than that to which under the controlling doctrines it is
entitled.lwph1.t The brief for respondents did clearly point out why petitioner's assertion is lacking in
support not only from the cases but even from commentators. Thus: "Actually, even under the first clause,
possession in good faith does not really amount to title, for the reason that Art. 1132 of the Code provides
for a period of acquisitive prescription for movables through `uninterrupted possession for four years in
good faith' (Art. 1955 of the old Spanish Code, which provided a period of three years), so that many
Spanish writers, including Manresa, Sanchez Roman, Scaevola, De Buen, and Ramos, assert that under
Art. 464 of the Spanish Code (Art. 559 of the New Civil Code), the title of the possessor is not that of
ownership, but is merely a presumptive title sufficient to serve as a basis of acquisitive prescription (II
Tolentino, Civil Code of the Phil. p. 258: IV Manresa, Derecho Civil Espaol, 6th Ed., p. 380). And it is for
the very reason that the title established by the first clause of Art. 559 is only a presumptive title sufficient
to serve as a basis for acquisitive prescription, that the clause immediately following provides that `one
who has lost any movable or has been unlawfully deprived thereof, may recover it from the person in
possession of the same.' As stated by the Honorable Justice Jose B. L. Reyes of this Court in Sotto vs.
Enage (C.A.), 43 Off. Gaz. 5075, Dec. 1947: `Article 559 in fact assumes that possessor is as yet not the
owner; for it is obvious that where the possessor has come to acquire indefeasible title by, let us say,
adverse possession for the necessary period, no proof of loss or illegal deprivation could avail the former
owner of the chattel. He would no longer be entitled to recover it under any condition.' "9
The second assigned error is centered on the alleged failure to prove the identity of the diamond ring.
Clearly the question raised is one of the fact. What the Court of Appeals found is conclusive. Again,
petitioner could not demonstrate that in reaching such a conclusion the Court of Appeals acted in an
arbitrary manner. As made mention of in the brief for respondents two disinterested witnesses, Mr. Rafael
Rebullida as well as Lt. Col. Reynaldo Cementina of the Pasay City Police Department, both of whom
could not be accused of being biased in favor of respondent Angelina D. Guevara, did testify as to the
identity of the ring.
The third assigned error of petitioners would find fault with respondent Court relying "on the weakness of
the title or evidence" of petitioner Consuelo S. de Garcia. It is true, in the decision under review, mention
was made of petitioner Consuelo S. de Garcia making no comment when in her presence Rebullida, after
examining the ring the stock card, told respondent Angelina L. Guevara that that was her ring, nor did
petitioner answer a letter of the latter asserting ownership. It was likewise stated in such decision that there
were extra-judicial admissions in the original and first amended answers of petitioner. In the appraisal of
her testimony, respondent Court likewise spoke of her giving a rather dubious source of her ring, the
person from whom she allegedly bought it turning out "to be a mysterious and ephemeral figure." As a
matter of fact, as set forth a few pages back, respondent Court did enumerate the flaws in the version
given by petitioner. From the weakness of the testimony offered which, as thus made clear, petitioner, did
not even seek to refute, she would raise the legal question that respondent Court relied on the "weakness
of [her] title or evidence" rather than on the proof justifying respondent Angelina D. Guevara's claim of
ownership. Petitioner here would ignore the finding of fact of respondent Court that such ownership on her
part "has been abundantly established" by her evidence. Again here, in essence, the question raised is
one of fact, and there is no justification for us to reverse respondent Court.

86
The legal question raised in the fourth assignment of error is that the matter of the substitution of the
diamond on the ring was a question raised for the first time on appeal as it was never put in issue by the
pleadings nor the subject of reception of evidence by both parties and not touched upon in the decision of
the lower court. Why no such question could be raised in the pleadings of respondent Angelina D. Guevara
was clarified by the fact that the substitution came after it was brought for examination to Mr. Rebullida.
After the knowledge of such substitution was gained, however, the issue was raised at the trial according
to the said respondent resulting in that portion of the decision where the lower court reached a negative
conclusion. As a result, in the motion for reconsideration, one of the points raised as to such decision being
contrary to the evidence is the finding that there was no substitution. It is not necessary to state that
respondent Court, exercising its appellate power reversed the lower court. What was held by it is
controlling. What is clear is that there is no factual basis for the legal arguments on which the fourth
assigned error is predicated.
What is said takes care of the fifth assigned error that respondent Court was mistaken in its finding that
there was such a substitution. Again petitioner would have us pass on a question of credibility which is left
to respondent Court of Appeals. The sixth assigned error would complain against the reversal of the lower
court judgment as well as petitioner Consuelo S. de Garcia being made to pay respondent Angelina D.
Guevara exemplary damages, attorney's fees and costs. The reversal is called for in the light of the
appraisal of the evidence of record as meticulously weighed by respondent Court. As to the attorney's fees
and exemplary damages, this is what respondent Court said in the decision under review: "Likewise,
plaintiff is entitled to recover reasonable attorney's fees in the sum of P1,000, it being just and equitable
under the circumstances, and another P1,000 as exemplary damages for the public good to discourage
litigants from resorting to fraudulent devices to frustrate the ends of justice, as defendant herein tried to
substitute the ring, Exhibit 1, for plaintiff's ring." 10 Considering the circumstances, the cursory discussion of
the sixth assigned error on the matter by petitioner fails to demonstrate that respondent Court's actuation is
blemished by legal defects.
WHEREFORE, the decision of respondent Court of Appeals of August 6, 1962 is hereby affirmed. With
costs.
Concepcion, C.J., Dizon, Makalintal, Zaldivar, Castro, Teehankee, Barredo, Villamor and Makasiar JJ.,
concur.
Reyes, J.B.L., J., concurs in the result, Art. 85 of the Code of Commerce not being applicable.

G.R. No. 133077

September 8, 2006

ADORACION G. ANGELES, petitioner,

vs.
HON. ANIANO A. DESIERTO, as Ombudsman of the Philippines, ROLINE M. GINEZ-JABALDE,
ANGEL C. MAYORALGO, JR., ABELARDO L. MONTEMAYOR, ROBERT E. KALLOS and LEONARDO
P. TAMAYO, all of the Office of the Ombudsman, Secretary LINA B. LAIGO of the Department of
Social Welfare and Development (DSWD), and Asst. Chief State Prosecutor PASCUALITA DURANCERENO, Senior State Prosecutor HERNANI T. BARRIOS, State Prosecutor RICHARD ANTHONY D.
FADULLON and State Prosecutor ALFREDO P. AGCAOILI, all of the Department of Justice,
Manila, respondents.
DECISION
GARCIA, J.:
By this special civil action for certiorari and mandamus under Rule 65 of the Rules of Court, petitioner
Adoracion G. Angeles seeks the annulment and setting aside of the following issuances in connection

87
with OMB-0-97-0047, a proceeding instituted by the petitioner with the Office of the Ombudsman against
the respondents (DSWD) Secretary Lina B. Laigo; Assistant Chief State Prosecutor Pascualita DuranCereno; Senior State Prosecutor (SSP) Hernani T. Barrios; and State Prosecutors (SPs) Richard Anthony
D. Fadullon and Alfredo P. Agcaoili, for alleged violation of Article 171(5)1 of the Revised Penal Code,

Later, pursuant to a Memorandum dated March 6, 1996 of Chief State Prosecutor (CSP) Jovencito Zuo,
I.S. No. 95-224 and I.S. No. 96-097 were consolidated and assigned to SPs Richard Anthony D. Fadullon
and Alfredo P. Agcaoili.

violation of Republic Act (R.A.) No. 3019,2particularly Section 3(f)3 thereof, in relation to Article I, Section

On July 25, 1996, SPs Richard Anthony D. Fadullon and Alfredo P. Agcaoili issued a Joint Resolution 7 in
the consolidated cases. Therein, they recommended the dismissal of Rebecca Pacay's complaint in I.S.
No. 96-097 and the filing of two (2) informations against the petitioner for violation of Section 10(a) of R.A.
No. 7610. More specifically, the joint resolution dispositively reads:

3(b) (4)4 and Section 3 (c) (6)5 of R.A. No. 7610:6

1.) Resolution dated September 18, 1997, issued by Graft Investigation Officer II Roline M.
Ginez-Jabalde of the Office of the Ombudsman, recommending the dismissal of the charges
filed by the petitioner against Secretary Lina B. Laigo of the DSWD; Assistant Chief State
Prosecutor Pascualita Duran-Cereno; Senior State Prosecutor Hernani T. Barrios; and State
Prosecutors Richard Anthony D. Fadullon and Alfredo P. Agcaoili;
2.) Memorandum dated November 20, 1997, issued by Special Prosecution Officer III Carlos
D. Montemayor of the Department of Justice (DOJ), recommending the approval of the
aforesaid September 18, 1997 Resolution; and
3.) Order dated January 23, 1998, duly approved by then Ombudsman Aniano A. Desierto,
denying the herein petitioner's motion for reconsideration of the same September 18, 1997
Resolution.
The main case, OMB-0-97-0047, traces its roots from a criminal complaint for physical abuse and
maltreatment under R.A. No. 7610, filed against the herein petitioner by her housemaids, Proclyn Pacay
and Nancy Gaspar, before the Department of Justice (DOJ).
The complaint, docketed as I.S. No. 95-224, was initially assigned for investigation to SSP Hernani T.
Barrios.
On April 21, 1995, the petitioner filed a manifestation and motion submitting I.S. No. 95-224 for resolution
and praying for its dismissal.
On June 21, 1995, SSP Barrios issued a subpoena directing the petitioner as respondent in I.S. No. 95224 to appear and present her evidence in the hearing of July 18, 1995. During the hearing, the petitioner
reiterated her earlier plea to submit the case for resolution, which was duly granted by SSP Barrios.
On January 12, 1996, the petitioner, irritated with the delay in the resolution of I.S. No. 95-224, filed an
administrative complaint against SSP Barrios charging the latter with dishonesty, gross negligence and
incompetence. Three days later, or on January 15, 1996, the petitioner filed an urgent motion, this time to
disqualify SSP Barrios from proceeding with or resolving I.S. No. 95-224.
In the meantime, another criminal complaint, also for violation of R.A. No. 7610, was filed against the
petitioner and her sister Oliva Angeles, by Rebecca Pacay, a former helper of the petitioner. This other
complaint was filed before the Quezon City Prosecutor's Office and thereat docketed as I.S. No. 96-258.
On February 2, 1996, I.S. No. 96-258 was indorsed by the Quezon City Prosecutor to the Office of the
Chief State Prosecutor, DOJ, because of its similarity with I.S. No. 95-224. In the DOJ, I.S. No. 96-258 was
re-docketed as I.S. No. 96-097.

WHEREFORE and in view of the foregoing, it is respectfully recommended that I.S. No. 96-097
filed by Rebecca Pacay against respondent Judge Adoracion Angeles and Oliva Angeles be
dismissed. Likewise, we recommend for approval the filing of two (2) informations for violation
of Section 10 (a) of Republic Act No. 7610 against respondent Judge Adoracion Angeles
relative to I.S. No. 95-224.
The aforementioned Joint Resolution was approved by CSP Jovencito Zuo.
In time, the petitioner moved for a partial reconsideration of the aforesaid joint resolution. With the
inhibition of CSP Zuo, petitioner's motion for partial reconsideration was referred to the Acting CSP,
Pascualita Duran-Cereno. In a resolution8 dated October 7, 1996, Acting CSP Duran-Cereno denied the
petitioner's motion, to wit:
Premises considered, the partial motion for reconsideration is denied. Let the two (2)
informations for violations of Section 10 (a), RA 7610 be filed in the Court of proper jurisdiction.
From the aforementioned denial resolution, the petitioner filed with the DOJ a petition for review.
Unfortunately for her, however, the petition was denied by DOJ Undersecretary Ricardo G. Nepomuceno in
the resolution dated January 16, 1997.
It was against the foregoing backdrop of events that the petitioner, obviously displeased with what
transpired, filed with the Office of the Ombudsman an Affidavit-Complaint9 against the following: Secretary
Lina B. Laigo of the DSWD; Assistant Chief State Prosecutor Pascualita Duran-Cereno; SSP Hernani T.
Barrios; and SPs Richard Anthony D. Fadullon and Alfredo P. Agcaoili. The complaint was docketed
as OMB-0-97-0047.
We reproduce hereunder the petitioner's accusations against the impleaded respondents in OMB-0-970047, to wit:
17. That the acts of all the respondents in unduly favoring the complainants in I.S. No. 95-224
and discriminating against me [petitioner] is likewise a wanton violation of Sec. 3(f) of RA 3019;
18. That the malicious acts of herein respondents are also constitutive of child abuse as defined
by Section 3(b) (4) in relation to Section 3(c) (6) RA 7610 inasmuch as the continued detention
of the girls at the DSWD albeit against their free will and their constant exposure to the trauma
of a court litigation seriously impair their normal development as members of society.
Undoubtedly, the unfounded scandal orchestrated by my detractors and maliciously supported
by all the respondents will leave an indelible stigma upon the girls; and

88
19. That it is evident that the case against me is rooted on vengeance with no other intention
than to harass and cast a stigma to my good name and the respondents are all willing
conspirators.
In the same affidavit-complaint, the petitioner charged respondents SSP Barrios and SPs Fadullon and
Agcaoili of falsification under Article 171(5) of the Revised Penal Code.
In the herein first assailed Resolution10 dated September 18, 1997, Graft Investigator Officer II Roline
M. Ginez-Jabalde, of the Office of the Ombudsman, recommended the dismissal of OMB-0-97-0047.
In the Memorandum dated November 20, 1997, Special Prosecution Officer III Carlos D.
Montemayor, also of the same office, recommended the approval of the September 18, 1997
Resolution.
Finally, in the Order dated January 23, 1998, Director Angel Mayoralgo, Jr., likewise of the Office of the
Ombudsman, and Assistant Ombudsman Abelardo Aportadera, recommended the denial, for lack of merit,
of the petitioner's motion for reconsideration of the Resolution dated September 18, 1997. The
recommendation was duly approved by the herein respondent, then Ombudsman Aniano A. Desierto, as
borne by the latter's signature appearing at the bottom of said Order.
Petitioner is now before the Court via the present recourse imputing grave abuse of discretion on the part
of the Ombudsman and his investigating officers in dismissing OMB-0-97-0047. In the same vein, the
petitioner seeks to annul and set aside their above stated issuances in said case. The mandamus aspect
of the petition seeks to command the respondent Ombudsman to file the information in court for violations
of Article 171(5) of the Revised Penal Code and Section 3(e) and (f) of R.A. No. 3019, as amended,
against DSWD Secretary Lina B. Laigo, Assistant Chief State Prosecutor Pascualita Duran-Cereno, SSP
Hernani T. Barrios and SPs Richard Anthony D. Fadullon and Alfredo P. Agcaoili.
The petition is bereft of merit.
To the petitioner, "the predisposition of the respondents to indict (her) at all cost is very apparent and an
undeniable badge of bad faith on their part as it is clear that the findings (in the Joint Resolution) are not
the result of an honest and objective appraisal of the evidence but the repulsive product of Barrios'
avenging nature which was supported and cooperated with by his co-respondents,"11 in OMB-0-97-0047.
In support of her conspiracy theory, the petitioner alleges that Secretary Lina B. Laigo of the DSWD
interfered with and manifested undue interest in the maltreatment case by making repeated calls to the
DOJ urging the immediate filing of criminal information therefor against the petitioner.

With respect to respondents Fadullon and Agcaoili, the petitioner alleged that the two conspired with
respondent Barrios in falsifying an unsigned Joint Resolution13 in the maltreatment cases by ante-dating
the same to show that it was ready for release by February 7, 1996. Petitioner insists that "respondent
Barrios could not have made the document on February 7, 1996 since the referral of I.S. No. 96-097 was
made on February 2, 1996 and the investigation commenced only on March 21, 1996 by respondents
Fadullon and Agcaoili."14
Time and again, the Court has ruled that the Ombudsman has the full discretion to determine whether a
criminal complaint should be dismissed or the necessary Information be filed in the appropriate court. His
determination and evaluation of the adequacy of evidence in this regard are unfettered. His is an exercise
of powers based upon a constitutional mandate and the courts should not interfere in such exercise.15 So
it is that in Espinosa v. Office of the Ombudsman,16 the Court states:
The prosecution of offenses committed by public officers is vested in the Office of the
Ombudsman. To insulate the Office from outside pressure and improper influence, the
Constitution as well as RA 6770 has endowed it with a wide latitude of investigatory and
prosecutory powers virtually free from legislative, executive or judicial intervention. This Court
consistently refrains from interfering with the exercise of its powers, and respects the initiative
and independence inherent in the Ombudsman who, 'beholden to no one, acts as the champion
of the people and the preserver of the integrity of public service.
The same ruling was reiterated in Salvador v. Desierto, et al.,17 where the Court further declared:
On the issue of whether respondent Ombudsman committed grave abuse of discretion in
dismissing the complaint against respondents, let it be stressed that the Ombudsman has
discretion to determine whether a criminal case, given its facts and circumstances, should be
filed or not. It is basically his call. He may dismiss the complaint forthwith should he find it to be
insufficient in form or substance or he may proceed with the investigation if, in his view, the
complaint is in due and proper form and substance.
xxx

xxx

xxx

Indeed, we have consistently ruled that unless there are good and compelling reasons, we
cannot interfere in the Ombudsman's exercise of his investigating and prosecutory powers.

As their part in the perceived grand conspiracy, petitioner avers that respondents Barrios, Fadullon and
Agcaoili, whom she claims to have a close link with the DSWD Secretary, allegedly orchestrated her
indictment for maltreatment to protect the image of the DSWD which was allegedly holding the
complainants in the maltreatment cases against their will.

Without good and compelling reasons to indicate otherwise, the Court cannot freely interfere in the
Ombudsman's exercise of his investigatory and prosecutory powers. He may dismiss the complaint
forthwith if he finds it to be insufficient in form or substance or if he otherwise finds no ground to continue
with the inquiry; or he may proceed with the investigation if the complaint is, in his view, in due and proper
form.18 However, while the Ombudsman has the full discretion to determine whether or not a criminal
case should be filed, the Court is not precluded from reviewing his action when there is an abuse of
discretion, by way of Rule 65 of the Rules of Court.19

Turning to respondent Pascualita Duran-Cereno, this respondent, according to the petitioner, conspired
with the other respondents when "she maliciously affirmed in toto the obviously biased findings of her corespondents Barrios, Fadullon and Agcaoili."12

The Court sees no abuse, much less grave abuse of discretion, committed in this case. Grave abuse of
discretion implies such capricious and whimsical exercise of judgment as is equivalent to lack of
jurisdiction, or, in other words where the power is exercised in an arbitrary or despotic manner by reason of

89
passion or personal hostility, and it must be so patent and gross as to amount to an evasion of positive
duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law. 20 Such
arbitrariness or despotism does not obtain here.
Without more, petitioner's bare allegation of intimacy among the respondents in OMB-0-97-0047 does not
prove conspiracy inasmuch as conspiracy transcends companionship. 21 To establish conspiracy,
evidence of actual cooperation, rather than mere cognizance or approval of an illegal act is
required.22 As we see it, nothing on record even minutely suggests that the respondents conspired to
insure the indictment of the petitioner. As correctly pointed out by the Ombudsman in the challenged Order
dated January 23, 1998:
The coordination and monitoring on the cases against the complainant Judge (petitioner) made
by the respondent Secretary should not be interpreted as pure interference on the job of the
state prosecutors. Enforcement of R.A. 7610 lies principally on the shoulders of the respondent
Secretary being the head of the agency called for this purpose. The undue interest shown by
the respondent Secretary should not be viewed on the negative perspective but should be given
a positive outlook. This is a clear signal that she is serious in performing her job as protector of
the rights of children against child abuse, exploitation and discrimination.
xxx

xxx

xxx

The continued custody by the DSWD over the children Proclyn Pacay and Nancy Gaspar works
for their own advantage and benefit contrary to the belief of the complainant Judge. Their
constant exposure to the trauma of court litigation are the necessary consequences of their
decision to file a complaint against Judge Adoracion G. Angeles but this is not tantamount to
child abuse.
Neither does the alleged similarity existing between the resolution prepared by respondent Barrios and the
Joint Resolution prepared by respondents Fadullon and Agcaoili indicate conspiracy. The similarities could
simply be attributed to the fact that the two resolutions have been lifted from the same set of records.
With regard to the charge of falsification against respondents Barrios, Fadullon and Agcaoili, again, we
agree with the observations of Graft Investigation Officer II Roline M. Ginez-Jabalde in his assailed
Resolution dated September 18, 1997:
Respondent Barrios did not antedate his resolution because on the same date February 7,
1996, complainant Judge had learned from him that he would personally file charges against
her. This means that he had already disposed the case by having at that time a prepared
resolution and the contents of the same had already been fed to the respondent's computer for
printing and for subsequent release.
Complainant Judge's assertion of ante-dating to conceal connivance is entirely baseless
because nobody could know at that time to whom the case would be assigned in the event the
inhibition and disqualification will be granted.
xxx

xxx

xxx

A Sur-Rejoinder was filed by the complainant Judge where she narrated some material facts
which could enlighten the undersigned investigator in the determination of probable cause.
Furthermore, the Joint Resolution was not even signed by respondent Barrios, hence, it produces no legal
effect and is a mere scrap of paper. The fact that it was introduced as evidence in the administrative
complaint does not change the status of the document.
The allegation that respondent Pascualita Duran-Cereno allowed herself to be a part of the conspiracy
when she denied the petitioner's partial motion for reconsideration and affirmed the findings in the Joint
Resolution of respondents Fadullon and Agcaoili is utterly without basis. Petitioner who is herself a judge
should understand that respondent Pascualita Duran-Cereno merely performed her duties as a reviewing
officer. The alleged failure to consider the evidence adduced by the petitioner should not be a cause for an
administrative case against said respondent because these matters are best addressed to the sound
discretion of the trial court during the trial proper.
It is likewise noteworthy that the petitioner had exhausted all remedies available to her, which shows that
the findings of the Prosecutors and the reviewing officer are in accordance with law.
To recapitulate, in the absence, as here, of a clear case of grave abuse of discretion, the Court will not
interfere with the discretion of the Ombudsman, who, depending on his finding and considered evaluation
of the case, either dismisses a complaint or proceeds with it.
WHEREFORE, the instant petition is DISMISSED.
SO ORDERED.

90
The Indictments
Appellant, together with Peter Doe, John Doe and Peter Doe, Jr., was charged before the RTC of Agoo, La
Union with the crime of Murder, said to have been committed as follows:
That on or about the 13th day of February, 1994, in the Municipality of Aringay, Province of La Union,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill
and being then armed with lead pipes and bladed weapons and conspiring, confederating and mutually
helping each other, did then and there by means of treachery and with evident premeditation and taking
advantage of their superior strength, wil[l]fully, unlawfully and feloniously attack, assault and use personal
violence on one Manuel Piamonte y Ugay by clubbing him with the said pipes and stabbing him several
times with the said bladed weapons, and thereby inflicting on the aforenamed victim fatal injuries which
were the direct and immediate cause of his death, to the damage and prejudice of his heirs.
Contrary to law.3
The RTC ordered the issuance of a warrant of arrest for the apprehension of the appellant. No bail was
recommended.4 When the case was called, appellant filed a Motion for Reinvestigation and Bail, which
was granted.

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 172608

February 6, 2007

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
BERNARD MAPALO, Accused-Appellant.
DECISION
CHICO-NAZARIO, J.:
In its Decision1 dated 27 October 2004, the Regional Trial Court (RTC), Branch 32 of Agoo, La Union, in
Criminal Case No. A-2871, found appellant Bernard Mapalo guilty beyond reasonable doubt of the crime of
Murder, and imposed upon him the penalty of reclusion perpetua. On appeal, the Court of Appeals
rendered a Decision2 dated 21 November 2005, modifying the Decision of the RTC, and finding Bernard
Mapalo guilty beyond reasonable doubt of the crime of Frustrated Murder.

On 27 March 1995, 3rd Assistant Provincial Prosecutor Manuel S. Oliva filed a Motion to Admit Amended
Information and for the Issuance of Warrant of Arrest for the Apprehension of the Other Accused, 5 alleging
that a reinvestigation was conducted and a prima facie case was found against the other accused. It was
prayed that an amended information be admitted and a warrant of arrest be issued for the apprehension of
Alejandro Fajardo, Jr., Jimmy Frigillana, and Rolando Mapalo alias "Lando." Finding the Motion to be welltaken, the RTC issued an Order,6 dated 27 April 1995, admitting the Amended Information, viz:
The undersigned Assistant Provincial Prosecutor accuses BERNARD MAPALO, ALEJANDRO FAJARDO,
JR.,JIMMY FRIGILLANA and ROLANDO MAPALO alias Lando of the crime of MURDER, committed as
follows:
That on or about the 13th day of February, 1994, in the Municipality of Aringay, Province of La Union,
Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, with intent to kill
and being then armed with lead pipe and bladed weapons and conspiring, confederating and mutually
helping each other, did then and there by means of treachery and with evident premeditation and taking
advantage of their superior strength, wil[l]fully, unlawfully and feloniously attack, assault and use personal
violence on one Manuel Piamonte y Ugay by clubbing him with the said pipe and stabbing him several
times with the said bladed weapons, and thereby inflicting on the aforenamed victim fatal injuries which
were the direct and immediate cause of his death, to the damage and prejudice of his heirs.7
Consequently, a warrant of arrest was issued for the apprehension of Alejandro Fajardo, Jr., Jimmy
Frigillana, and Rolando Mapalo alias "Lando." Only Alejandro Fajardo, Jr. was apprehended; the other two
remain at large.
On arraignment, appellant pleaded not guilty.8 Thereafter, trial on the merits commenced.

91
After the prosecution had rested its case, Alejandro Fajardo, Jr. filed a Demurrer to Evidence which was
granted by the RTC, in its Order9 dated 5 November 1998, on the ground that the prosecution did not
present any evidence against him. Thus, only accused Bernard Mapalo proceeded to present his
evidence. He was eventually found guilty.
The Case for the Prosecution
The prosecution presented Calixto Garcia (Garcia) as its lone eyewitness.
Garcia testified that on 12 February 1994, a pre-Valentine dance was held in Sitio Baracbac, Brgy. Sta.
Cecilia in Aringay, La Union. He watched the dance, along with the appellant and Jimmy Frigillana.10 In
the early morning of 13 February 1994, at around 3:00 a.m., a fight erupted between Manuel Piamonte
(Piamonte) and the group of Lando Mapalo,11 Jimmy Frigillana, and the appellant.12
Garcia further testified that he witnessed the fight from a distance of more or less five (5) meters. He
claimed that he could see the incident very clearly because of the light at the dancing hall.13 He saw the
appellant club Piamonte with a lead pipe from behind, hitting him on the right side of the head.14 The
pipe was one and a half (1 and ) feet in length, and one and a half (1 and ) inches in diameter.15 At
that time when the appellant struck Piamonte with a lead pipe, he saw Jimmy Frigillana and Lando Mapalo
standing in front of Piamonte. Later, he saw the dead body of Piamonte, which had suffered multiple stab
wounds.16 He saw stab wounds on the left and right parts of the abdomen, and below the left breast, as
well as small wounds on the front part of his left hip.17Garcia disclosed that he neither witnessed how
Piamonte was stabbed, nor did he see the act of stabbing Piamonte.18 He does not know who stabbed
the latter.19 It was only when Piamontes shirt was removed when he saw stab wounds on the formers
dead body.20

dancing hall.33 She claimed that her husband did not go out and just stayed at their house.34 She
explained that she and Marissa Dapit went out to see or to know the name of the person who died at the
commotion.35 At the dancing hall, she saw the body of Piamonte, lying face down.36
The Ruling of the RTC
After trial, the RTC rendered a Decision, dated 27 October 2004, finding appellant guilty beyond
reasonable doubt of the crime of Murder.
It ruled that appellants defense of alibi cannot prevail over the positive identification of the lone
eyewitness. As emphasized by the RTC, per admission of appellant, the distance between his house and
the dancing hall is only 20 to 30 meters, more or less. There was no physical impossibility for the appellant
to be present at the scene of the crime. Moreover, it found Garcias testimony to be consistent and
uncontradicted. On the other hand, the RTC considered the testimony of Caridad Mapalo as defying the
natural course of human reaction and experience. The RTC found it strange that it was only Caridad
Mapalo who was awakened by the commotion, while the appellant remained asleep. Learning of the same,
Caridad Mapalo exposed herself to danger by proceeding to the dance hall to see what the commotion
was all about without even informing her husband. The RTC conjectured that Caridad Mapalo proceeded
to the dance hall not to see what the commotion was all about, but because she was informed that her
husband was involved in a fight.37
Further, the RTC ruled that conspiracy was established by the prosecution. According to the RTC, the
appellant was clearly identified by Garcia as the one who struck Piamonte on the head with a lead pipe,
which alone is "sufficient manifestation of a concerted, common and united design with the other accused
to commit an unlawful and felonious act." The fact that the medical certificate shows the cause of death as
stab wounds was deemed by the RTC as immaterial, in view of the presence of conspiracy. The RTC also
appreciated the attendance of abuse of superior strength as a qualifying circumstance, on the
rationalization that the perpetrators were armed with bladed weapons and a lead pipe that were out of
proportion to the unarmed Piamonte.

The Case for the Defense

The decretal portion of the RTC Decision states:
Appellant testified that in the evening of 13 February 1994,21 at around 9:00 p.m., he, along with his wife,
Caridad Mapalo, entertained several guests at their residence, namely, Crispin Calderon, Noel Cordero,
Ruel Mercado, and Rolando Mapalo.22 They drank wine.23 Appellant knew that there was a Valentines
Day dance celebration at the dance hall, located northeast of his house at a distance of about 20-30
meters.24 At 12:30 a.m., after his guests had left the house, he went to sleep.25 At 3:00 a.m., his wife
woke him up and was informed that somebody had been stabbed. He said he came to know that Piamonte
was the person who was stabbed.26 He added that he planned to go out of the house, but his wife
prevented him from doing so.27 He, thereafter, returned to his room, and went back to sleep.28
Corroborating the appellants defense of denial and alibi, his wife, Caridad Mapalo, narrated that on 13
February 199429 at 8:00 p.m., she served brandy to her husband and their guests at their residence. The
celebration finished at around 12:00 midnight.30 Thereafter, she and her husband went to sleep, while
their guests proceeded to the dance hall. At 3:00 a.m., she awoke because of a commotion from the dance
hall.31 She described that the dance hall is around 60 to 70 meters, southwest of their residence.32 She
went outside of their house, and along with her sister-in-law, Marissa Dapit, proceeded to the edge of the

WHEREFORE, the accused BERNARD MAPALO is hereby found Guilty beyond reasonable doubt of the
crime of MURDER and is sentenced to suffer the penalty of RECLUSION PERPETUA.
Further, the accused is ordered to pay the heirs of Manuel Piamonte the amount of Twelve Thousand
Seven Hundred Pesos (P12,700.00) as actual damages. Fifty Thousand Pesos (P50,000.00) as civil
indemnity for the death of Piamonte and Fifty Thousand Pesos (P50,000.00) as moral damages.38
The Ruling of the Court of Appeals
Before the appellate court, appellant challenged the credibility of the prosecutions lone eyewitness.
Appellant similarly assailed the ruling of the RTC on the ground that it erred in convicting him despite the
failure of the prosecution to prove his guilt beyond reasonable doubt.39

92
The Court of Appeals found no adequate reason to disturb the findings of the RTC in weighing the
testimony of Garcia. It did not find significant the alleged inconsistencies in Garcias affidavits as executed
before the investigating police and the prosecutor.40 The appellate court did not accept the appellants
defense of alibi. The positive identification of the prosecution witness which was consistent and
categorical, and shown to be without ill-motive, has discredited appellants defense.

THE COURT OF APPEALS GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT

DESPITE FAILURE OF THE PROSECUTION TO IDENTIFY THE ACCUSED-APPELLANT IN
OPEN COURT; and

The Court of Appeals, however, found reason to modify the findings of the RTC. It convicted the appellant
of frustrated murder only. It was not convinced that the evidence on record established conspiracy among
the appellant and his co-accused. The appellate court rationalized that while the evidence shows that
Piamonte sustained stab wounds which caused his death,41 the appellant was never identified as the
one who inflicted the stab wounds on the deceased. According to the appellate court, the prosecutions
evidence only established that the appellant clubbed Piamonte with a lead pipe. However, the
prosecutions witness did not see the stabbing. He was not able to describe the particular acts which
caused Piamontes death. Hence, it cannot be inferred from the account of the witness that the appellant
and his co-accused came to an agreement to commit a felony, or that they decided to commit the same, by
concerted acts.42 The Court of Appeals made the following observations:

ASSUMING THAT THE ACCUSED-APPELLANT IS GUILTY, THE COURT OF APPEALS

GRAVELY ERRED IN CONVICTING HIM OF FRUSTRATED MURDER INSTEAD OF
FRUSTRATED HOMICIDE.47

In the first place, the killing was the result of a fight that erupted suddenly during the Valentine dance,
which discourages the conclusion that the killing was planned. Also, the witness did not see any stabbing.
He did not see anyone else perform any act of stabbing or hitting, other than the appellant delivering blows
with a lead pipe on the victim. There is no proof, therefore, of any concerted action or common design to
kill the victim that could be the basis for a finding of conspiracy among several malefactors. Because of
this, it could not be said that conspiracy was proven attendant beyond reasonable doubt.43
In the absence of a conspiracy, the Court of Appeals said that the appellant could only be held liable for the
consequences of his own criminal act. It ruled that when the appellant hit Piamonte in the head with the
lead pipe, he performed all the acts that would have brought about the death of the victim.44 Piamontes
death however was due to some other supervening cause, independent of the appellants will. 45
The fallo of the Court of Appeals Decision reads, viz:
WHEREFORE, premises considered, the lower courts Decision is hereby MODIFIED, in that the accusedappellant Bernard Mapalo is hereby found guilty beyond reasonable doubt of the crime of Frustrated
Murder. Accused-appellant is hereby sentenced to 8 years and 1 day of prision mayor, as minimum to 14
years, 8 months and 1 day of reclusion temporal, as maximum.
Further, the accused is ordered to pay the heirs of Manuel Piamonte[,] the amount of Twenty Five
Thousand Pesos (P25,000.00) as temperate damages, Thirty Thousand Pesos (P30,000.00) as civil
indemnity and Thirty Thousand Pesos (P30,000.00) as moral damages pursuant to prevailing
jurisprudence. (People v. Pacana, 345 SCRA 72 [2000]; People v. Givera, 349 SCRA 513 [2001]).46
The Issues
Appellant contends that:
I

II

The Ruling of the Court

In support of the first assignment of error, appellant raises, for the first time, the defense that the witness
for the prosecution failed to positively identify him during the trial proceedings. Citing People v.
Galera48 and People v. Hatton,49 appellant submits that the prosecution failed to discharge its first duty,
which is the identification of the accused as the author of the crime charged.50 Witness Garcia did not
identify the appellant in open court.
Appellant further posits that Garcia did not deny drinking gin at around 9:00 p.m. on 13 February 1994 until
3:00 a.m. of the following day. Garcia was then intoxicated if he had been drinking hard liquor continuously
for six hours. At such point, he can no longer positively determine a persons identity. It is argued that the
foregoing circumstances create doubts as to the identity of the appellant as one of the perpetrators of the
crime.
We first tackle the issue on the lack of in-court identification.
True that on the matter of identification, the Court in Hatton said:
More importantly, the accused-appellant was not positively identified in court. True, his name was referred
to by both Basierto and Ongue in their respective direct testimonies. However, he was not identified in
Court. The failure of the prosecution witness to positively identify the assailant in court is fatal to the
prosecutions cause. Pre-trial identification is not sufficient.51
Verily, the records are bereft of proof that there was in-court identification by the witness Garcia of the
appellant. Indeed, Garcia did not point to the appellant in the courtroom. Such fact can be gleaned from
the pertinent portion of the transcript of stenographic notes of the trial, reproduced hereunder, as follows:
Direct-examination by Prosecutor Rudio of the witness Calixto Garcia
Q Do you know the accused Bernard Mapalo?
A I know, sir.
Q If that accused is inside the courtroom now will you please stand up and point to him if he is inside the
courtroom?

93
A No, he is not around.

We are convinced that the identity of the appellant was sufficiently established by the evidence on record.

COURT:

The appellant is not a stranger to the witness Garcia. The identity of the appellant to Garcia does not
appear to be controvertible. In fact, appellant himself admits that he and Garcia are friends. Thus:

Q Was he notified for (sic) todays hearing?

Cross-examination by Prosecutor Lachica of [appellant] Bernard Mapalo
INTERPRETER:
Yes, he signed, sir.

Q Mr. Witness you said that you were informed by your counsel a while ago that a certain Calixto Garcia
testified against you in this case did I get you right?

COURT: O R D E R:

A Yes, sir.

It appears that the accused Bernard Mapalo was being notified for (sic) todays hearing and his wife came
to Court and informed the Honorable Court that her husband could not come to Court because he is
sick.52

Q And this Calixto Garica is a resident of the same Barangay as you are?

The same testimony, however, conspicuously reveals that there was no identification in open court of the
appellant because said appellant was not present at the time, despite notice, as according to his wife, he
was sick.

Q In fact this Calixto Garcia is an acquaintance of yours?

In a later case, this Court clarified that a physical courtroom identification is essential only when there is a
question or doubt on whether the one alleged to have committed the crime is the same person who is
charged in the information and subject of the trial. In People v. Quezada, 53 this Court expounded, thus:

Q He is considered a friend?

We do not see the absolute need for complainant to point to appellant in open court as her attacker. While
positive identification by a witness is required by the law to convict an accused, it need not always be by
means of a physical courtroom identification. As the court held in People v. Paglinawan:

Q Prior to the incident which happened sometime on February 13, 1994, you have never quarreled with
this Calixto Garcia?

"x x x. Although it is routine procedure for witnesses to point out the accused in open court by way of
identification, the fact that the witness x x x did not do so in this case was because the public prosecutor
failed to ask her to point out appellant, hence such omission does not in any way affect or diminish the
truth or weight of her testimony."
In-court identification of the offender is essential only when there is a question or doubt on whether the one
alleged to have committed the crime is the same person who is charged in the information and subject of
the trial. This is especially true in cases wherein the identity of the accused, who is a stranger to the
prosecution witnesses, is dubitable. In the present case, however, there is no doubt at all that the rapist is
the same individual mentioned in the Informations and described by the victim during the trial. (Emphasis
supplied.)54
We do not find herein a case where there is a question or doubt as to whether the one alleged to have
committed the crime is the same person charged in the information and subject of the trial. In fact,
appellant never denied that he is the person indicted in the Information, and subject of the proceedings.
His denial is that he did not participate in the commission of the crime. Hence, in-court identification is not
indispensable in the case at bar.

A Yes, sir.

A Yes, sir.

A Yes, sir I consider him as such.

A No, sir.
Q Even after that incident that happened on February 13, 1994 you never quarreled with Calixto Garcia?
A No, sir.
Q You know that this Calixto Garcia is not a relative of Piamonte the victim in this case?
A I do not know whether he is a relative of the victim or not.
Q You know for a fact that Calixto Garcia executed a statement before the police pointing to you or pointing
to you as the assailant of Paimonte did you come to know that?
A No, sir.
Q You said that you know Calixto Garcia your friend according to you, did you confront him when he
testified against you in court?

94
A No, sir.

COURT:

Q You did not tell your friend that he was mistaken in identifying you as the assailant of Piamonte, correct?

Objection overruled.

A No, sir. 55

PROSECUTOR LACHICA:

The proper identification of the appellant is further bolstered by the fact that appellants wife, Caridad
Mapalo corroborated the testimony that the witness Garcia is a family friend of the spouses. Thus:

Q Until now, this Calixto Garcia is your friend?

A Yes, sir.

Cross examination of Caridad Mapalo by Prosecutor Lachica

PROSECUTOR LACHICA:
Q Do you know a certain Calixto Garcia?
That would be all for the witness.
A Yes, sir.
RE-DIRECT EXAMINATION BY ATTY. RIMANDO:
Q He is your Barangay mate?
Q This Calixto Garcia was your guest in that evening in your residence?
A Yes, sir.
A No, sir.
Q His house is closed to your house, correct?
Q Is your family close with (sic) this Calixto Garcia?
A Far, sir.
A Yes, sir.56
Q But he is staying within your barangay which is Sta. Cecilia?
A Yes, sir.
Q This Calixto Garcia whom you know is a friend of your family, correct?
A Yes, sir.
Q In fact, your family have (sic) never quarreled with Calixto Garcia?
A None, sir.
Q Prior to the filing of this case, you know that Calixto Garcia being a friend will not falsify his testimony
regarding your husband?

Moreover, we do not find herein the presence of factors57 that could cause the witness Garcia to
misidentify the appellant. In People v. Limpangog,58 this Court enumerated several other known causes
of misidentification, viz:
x x x Known causes of misidentification have been identified as follows:
"Identification testimony has at least three components. First, witnessing a crime, whether as a victim or a
bystander, involves perception of an event actually occurring. Second, the witness must memorize details
of the event. Third, the witness must be able to recall and communicate accurately. Dangers of unreliability
in eyewitness testimony arise at each of these three stages, for whenever people attempt to acquire,
retain, and retrieve information accurately, they are limited by normal human fallibilities and suggestive
influences."59

A Yes, sir.

There is no question that the witness Garcia was at a close range of merely five meters more or less from
the scene of the incident.60 Neither can it be said that the illumination was poor. The dancing hall was

ATTY. RIMANDO:

lighted.61 No improper motive was attributed to the witness Garcia for testifying against the appellant.
Moreover, witness Garcia is familiar not only to appellant. Garcia was also familiar with the deceased,
Piamonte. Witness Garcia, in his testimony, referred to Piamonte as his third cousin. 62

Objection, your honor.

95
On appellants submission that it is doubtful if witness Garcia can still have positively identified him as one
of the perpetrators of the crime considering that the former admitted to drinking hard liquor from 9:00 p.m.
on 13 February 1994 until 3:00 a.m. of the following day, we are not convinced that the same can
overthrow the trial courts evaluation of Garcias testimony. Beyond appellants bare allegations, no
evidence whatsoever was produced to show that Garcia suffered from such a level of intoxication as to
impair his facility and disable him to identify appellant. In the case of People v. Dee,63 the credibility of
the surviving victim therein as witness was disputed because he was under the influence of liquor at the
time of the incident. In Dee, the witness was even found positive for alcoholic breath, but the Court ruled
that such fact does not necessarily prevent him from making a positive identification of his attackers,
especially since his level of intoxication was not shown to impair his faculties. The credibility of the witness
therein was not made to suffer on that score alone.64

To reiterate, the RTC, in convicting the appellant guilty beyond reasonable doubt of the crime of murder,
proceeded from a rationalization that there was conspiracy among appellant and his co-accused. It also
appreciated the attendance of abuse of superior strength to qualify the crime to Murder.

The foregoing material considerations, taken together with the fact that witness Garcia and the appellant
are not strangers to each other, satisfy us that the danger of Garcia misidentifying the appellant does not
exist. Where the prosecution eyewitness was familiar with both victim and accused, and where the locus
criminis afforded good visibility, and where no improper motive can be attributed to the witness for
testifying against the accused, his version of the story deserves much weight. 65

Conspiracy exists when two or more persons come to an agreement concerning the commission of a
felony and decide to commit it.72 Conspiracy as a basis for conviction must rest on nothing less than a

Hence, we do not find any reason to depart from the general rule that the conclusions of the trial court on
the credibility of witnesses deserve great respect, viz:

The Court of Appeals was unable to agree with the RTC. It found that the conspiracy was not proven
beyond reasonable doubt. It ruled that the witness Garcia admitted to not being able to see the stabbing.
He could only attest to the clubbing of the victim by appellant with a lead pipe. No proof was shown as to
the concerted action of the malefactors of their common design to kill. It, thus, modified the RTCs
conviction, and, instead, found appellant guilty of frustrated murder.
The Amended Information charged the appellant and his co-accused with conspiracy in killing Piamonte.

moral certainty.73Considering the far-reaching consequences of criminal conspiracy, the same degree of
proof necessary in establishing the crime is required to support the attendance thereof, i.e., it must be
shown to exist as clearly and convincingly as the commission of the offense itself. 74 Thus, it has been
held that neither joint nor simultaneous actions is per se sufficient proof of conspiracy. 75
We are, further, guided by the following pronouncement of the Court:

The assessment of the credibility of witness and their testimony is a matter best undertaken by the trial
court because of its unique opportunity to observe the witnesses firsthand; and to note their demeanor,
conduct and attitude under examination. Its findings on such matters are binding and conclusive on
appellate courts unless some facts or circumstances of weight and substance have been overlooked,
misapprehended or misinterpreted.66

For conspiracy to exist, the participants must agree to the commission of the felony and decide to commit
it, which agreement may be deduced from the mode and manner of the commission of the offense or
inferred from the acts that point to joint purpose and design, concerted action and community of intent. x x
x.76

Appellants defense of alibi and denial cannot stand in the face of the positive identification of the accused.
We have unfailingly held that alibi and denial being inherently weak cannot prevail over the positive
identification of the accused as the perpetrator of the crime. 67 It is facile to fabricate and difficult to

While conspiracy need not be established by direct evidence, it is, nonetheless, required that it be proved
by clear and convincing evidence by showing a series of acts done by each of the accused in concert and
in pursuance of the common unlawful purpose.77

disprove, and is generally rejected.68

For the defense of alibi to prosper, it must be shown with clear and convincing evidence that at the time of
the commission of the crime charged, the accused is in a place other than the situs of the crime such that it
was physically impossible for him to have been at the situs criminis when the crime was committed. 69
In the case at bar, appellant was not successful in invoking the defense of alibi. Appellant insists that he
was sleeping at his residence at the time when the incident occurred. The RTC and the Court of Appeals
consistently found that the distance between appellants residence and the dance hall, or the situs criminis,
is 20 to 30 meters, more or less.70 Such a distance is negligible. In fact, appellants wife testified that
from their residence, she could see the people dancing at the hall.71 It was not highly impossible for the
appellant to be physically present at the dancing hall at the time of the occurrence of the incident. We,
therefore, reject appellants defense of alibi.
We shall now determine the criminal liability of the appellant.

There is a want of evidence to show the concerted acts of the appellant and his co-accused in pursuing a
common design - to kill the deceased, Piamonte. The sole eyewitness for the prosecution, Garcia, was
categorical and precise in declaring that he did not see the act of stabbing Piamonte, nor the manner in
which Piamonte was stabbed. He later learned that Piamonte died from stab wounds when he saw the
latters dead body covered with stab wounds. The cause of death of Piamonte, as found by the RTC and
the Court of Appeals,78 and as borne by the records, is multiple stab wounds.79 It was, thus, incumbent
on the part of the prosecution to prove beyond reasonable doubt that the appellant and his co-accused
acted in concert with a unity of purpose to kill Piamonte. They must show to the satisfaction of this Court
the appellants overt act in pursuance or furtherance of the complicity. 80 They must show that appellants
act of striking Piamonte with a pipe was an intentional participation in the transaction with a view to the
furtherance of the common design and purpose.81
The prosecution was unable to show, either by direct or indirect evidence, proof of the agreement among
the appellant and his co-accused to warrant conspiracy as a basis for appellants conviction. No evidence
was even adduced to show implied conspiracy. Nothing has been shown that the appellant and his coaccused were "aimed by their acts towards the accomplishment of the same unlawful object, each doing a

96
part so that their combined acts, though apparently independent of each other were, in fact, connected and
cooperative, indicating a closeness of personal association and a concurrence of sentiment."82
This complete absence of evidence on the part of the prosecution to show the conduct of the appellant and
his co-accused, disclosing a common understanding among them relative to the commission of the
offense,83 is fatal to the prosecution. The prosecutions witness could not testify on the manner by which
the deceased Piamonte was stabbed, precisely because by his own admission, he did not see the
stabbing. No account of the stabbing which caused the death of the deceased Piamonte was ever given
nor shown. Unfortunately, no account of how Piamonte died was ever given, except for the established fact
that he died due to stabbing. The appellants act of holding a lead pipe and hitting the deceased in the
head was not shown to be in furtherance of the common design of killing the deceased. What transpired
during the stabbing of the victim, which is material to proving the fact of conspiracy, is, regrettably, left
merely to speculation. This Court must neither conjecture nor surmise that a conspiracy existed. The rule is
clear that the guilt of the accused must be proved with moral certainty.84 All doubts should be resolved in
favor of the accused. Thus, the time honored principle in criminal law that if the inculpatory facts are
capable of two or more explanations, one consistent with the innocence of the accused and the other with
his guilt, the Court should adopt that which is more favorable to the accused for then the evidence does
not fulfill the test of moral certainty.85

In the case at bar, no injury was shown to be attributable to the appellant. The only medical evidence that
appears on records is the deceased Piamontes death certificate,89 which indicates that the cause of
death is massive hypovolemia90 secondary to multiple stab wounds. The factual findings of the RTC and
the Court of Appeals coincide to show that the cause of death of Piamonte is multiple stab wounds.
Nothing has been shown otherwise. Other than the presence of multiple stab wounds, no other type of
injury on the deceased was established. No contusions or injury on the head of the victim or anywhere else
in his body caused by a lead pipe was shown. The witness Garcia, in his testimony, merely pointed to stab
wounds on the different parts of the body of the deceased.91 No proof on the injury that was sustained by
the deceased that can be attributable to appellants act was demonstrated. No other physical evidence was
proffered.92
We cannot convict appellant of Attempted or Frustrated Murder or Homicide. The principal and essential
element of attempted or frustrated homicide or murder is the assailants intent to take the life of the person
attacked.93Such intent must be proved clearly and convincingly, so as to exclude reasonable doubt
thereof.94 Intent to kill may be proved by evidence of: (a) motive; (b) the nature or number of weapons
used in the commission of the crime; (c) the nature and number of wounds inflicted on the victim; (d) the
manner the crime was committed; and (e) words uttered by the offender at the time the injuries are inflicted
by him on the victim.95

Liability of the Accused Bernard Mapalo

There being no conspiracy, the liability of the appellant will revolve around his individual participation in the
event.86

In the case at bar, no motive on the part of appellant to kill Piamonte was shown either prior or subsequent
to the incident. Nor can such intent to kill be inferred from his acts. It bears reiterating that no injury on the
body of the deceased was attributed to the appellants act of hitting the victim with a lead pipe. On the
nature of the weapon used, the lead pipe was described by Garcia as one and a half feet in length, and
one and a half inches in diameter. The relevant testimony of Garcia on the incident follows:

In the case of Li v. People,87 a street fight ensued resulting in the death of the victim therein. No
conspiracy was proven beyond reasonable doubt. The liability of the accused Li who was shown to have
struck the victims right arm with a baseball bat, resulting in a contusion was, thus, determined by the Court
in the following manner:

Q Now you said that Bernard Mapalo clubbed this Manuel Piamonte. He clubbed him from behind?

The only injury attributable to Li is the contusion on the victims right arm that resulted from Li striking [the
victim] Arugay with a baseball bat. In view of the victims supervening death from injuries which cannot be
attributed to Li beyond reasonable doubt, the effects of the contusion caused by Li are not mortal or at
least lie entirely in the realm of speculation. When there is no evidence of actual incapacity of the offended
party for labor or of the required medical attendance, the offense is only slight physical injuries, penalized
as follows:
xxxx
The duration of the penalty of arresto menor is from one day to thirty days. The felony of slight physical
injuries is necessarily included in the homicide charges. Since the Information against Li states that among
the means employed to commit the felonious act was the use of the baseball bat, conviction on the lesser
offense or slight physical injuries is proper. There being no aggravating or mitigating circumstances
established, the imposition of the penalty in its medium period is warranted. Li was convicted by the RTC
on January 5, 1994. Having long served more than the imposable penalty, Li is entitled to immediate
release unless, of course, he is being lawfully detained for another cause.88

A Yes, sir.
Q And what did he use in clubbing the victim, is it lead pipe?
A Yes, sir.
Q How long is that lead pipe?
A Around this length. (Witness demonstrated 1 1/2 feet).
Q And how wide is the diameter?
A 1 inches.
Q What part of his body was hit?
A Right side of the head, sir. (Witness showing the right side of his head.) 96

97
Homicidal intent must be evidenced by the acts that, at the time of their execution, are unmistakably
calculated to produce the death of the victim by adequate means.97 We cannot infer intent to kill from the
appellants act of hitting Piamonte in the head with a lead pipe. In the first place, wounds were not shown
to have been inflicted because of the act. Secondly, absent proof of circumstances to show the intent to kill
beyond reasonable doubt, this Court cannot declare that the same was attendant.
When the offender shall ill-treat another by deed without causing any injury, and without causing dishonor,
the offense is Maltreatment under Article 266,98 par. 3 of the Revised Penal Code. It was beyond
reasonable doubt that by hitting Piamonte, appellant ill-treated the latter, without causing any injury. As we
have earlier stated, no proof of injury was offered. Maltreatment is necessarily included in Murder, which is
the offense charged in the Information. Thus:
ART. 266. Slight physical injuries and maltreatment. The crime of slight physical injuries shall be
punished:
xxxx
3. By arresto menor in its minimum period or a fine not exceeding 50 pesos when the offender shall ill-treat
another by deed without causing any injury.
The duration of the penalty of arresto menor in its minimum period is 1 day to 10 days.
WHEREFORE, the Decision of the Court of Appeals, dated 21 November 2005, in CA-G.R. CR HC No.
00408 is MODIFIED. Appellant Bernard Mapalo is ACQUITTED of the charge of MURDER for lack of
evidence beyond reasonable doubt. He is found GUILTY of the crime of MALTREATMENT, as defined and
punished by Article 266, par. 3 of the Revised Penal Code. He is accordingly sentenced to suffer the
penalty of imprisonment of arresto menor of 10 days. Considering that appellant has been incarcerated
since 2004, which is well-beyond the period of the penalty herein imposed, the Director of the Bureau of
Prisons is ordered to cause appellants IMMEDIATE RELEASE, unless appellant is being lawfully held for
another cause, and to inform this Court, within five (5) days from receipt of this Decision, of the compliance
therewith.
SO ORDERED.

[G.R. No. 153559. June 8, 2004]

PEOPLE OF THE PHILIPPINES, appellee, vs. ANTONIO COMADRE, GEORGE COMADRE and
DANILO LOZANO, appellants.
DECISION
PER CURIAM:
Appellants Antonio Comadre, George Comadre and Danilo Lozano were charged with Murder with
Multiple Frustrated Murder in an information which reads:
That on or about the 6th of August 1995, at Brgy. San Pedro, Lupao, Nueva Ecija, Philippines, and within
the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually
helping one another, with intent to kill and by means of treachery and evident premeditation, availing of
nighttime to afford impunity, and with the use of an explosive, did there and then willfully, unlawfully and
feloniously lob a hand grenade that landed and eventually exploded at the roof of the house of Jaime
Agbanlog trajecting deadly shrapnels that hit and killed one ROBERT AGBANLOG, per the death
certificate, and causing Jerry Bullanday, Jimmy Wabe, Lorenzo Eugenio, Rey Camat, Emelita Agbanlog
and Elena Agbanlog to suffer shrapnel wounds on their bodies, per the medical certificates; thus, to the
latter victims, the accused commenced all the acts of execution that would have produced the crime of
Multiple Murder as consequences thereof but nevertheless did not produce them by reason of the timely
and able medical and surgical interventions of physicians, to the damage and prejudice of the deceaseds
heirs and the other victims.
CONTRARY TO LAW.[1]
On arraignment, appellants pleaded not guilty.[2] Trial on the merits then ensued.
As culled from the records, at around 7:00 in the evening of August 6, 1995, Robert Agbanlog,
Jimmy Wabe, Gerry Bullanday, [3] Rey Camat and Lorenzo Eugenio were having a drinking spree on the
terrace of the house of Roberts father, Barangay Councilman Jaime Agbanlog, situated in Barangay San
Pedro, Lupao, Nueva Ecija. Jaime Agbanlog was seated on the banister of the terrace listening to the
conversation of the companions of his son.[4]
As the drinking session went on, Robert and the others noticed appellants Antonio Comadre,
George Comadre and Danilo Lozano walking. The three stopped in front of the house.While his
companions looked on, Antonio suddenly lobbed an object which fell on the roof of the terrace. Appellants
immediately fled by scaling the fence of a nearby school.[5]
The object, which turned out to be a hand grenade, exploded ripping a hole in the roof of the
house. Robert Agbanlog, Jimmy Wabe, Gerry Bullanday, Rey Camat and Lorenzo Eugenio were hit by
shrapnel and slumped unconscious on the floor. [6] They were all rushed to the San Jose General Hospital

98
in Lupao, Nueva Ecija for medical treatment. However, Robert Agbanlog died before reaching the hospital.
[7]

Dr. Tirso de los Santos, the medico-legal officer who conducted the autopsy on the cadaver of
Robert Agbanlog, certified that the wounds sustained by the victim were consistent with the injuries
inflicted by a grenade explosion and that the direct cause of death was hypovolemic shock due to hand
grenade explosion.[8] The surviving victims, Jimmy Wabe, Rey Camat, Jaime Agbanlog and Gerry
Bullanday sustained shrapnel injuries.[9]
SPO3 John Barraceros of the Lupao Municipal Police Station, who investigated the scene of the
crime, recovered metallic fragments at the terrace of the Agbanlog house. These fragments were
forwarded to the Explosive Ordinance Disposal Division in Camp Crame, Quezon City, where SPO2 Jesus
Q. Mamaril, a specialist in said division, identified them as shrapnel of an MK2 hand grenade.[10]
Denying the charges against him, appellant Antonio Comadre claimed that on the night of August 6,
1995, he was with his wife and children watching television in the house of his father, Patricio, and his
brother, Rogelio. He denied any participation in the incident and claimed that he was surprised when three
policemen from the Lupao Municipal Police Station went to his house the following morning of August 7,
1995 and asked him to go with them to the police station, where he has been detained since.[11]
Appellant George Comadre, for his part, testified that he is the brother of Antonio Comadre and the
brother-in-law of Danilo Lozano. He also denied any involvement in the grenade-throwing incident,
claiming that he was at home when it happened. He stated that he is a friend of Rey Camat and Jimmy
Wabe, and that he had no animosity towards them whatsoever. Appellant also claimed to be in good terms
with the Agbanlogs so he has no reason to cause them any grief.[12]
Appellant Danilo Lozano similarly denied any complicity in the crime. He declared that he was at
home with his ten year-old son on the night of August 6, 1995. He added that he did not see Antonio and
George Comadre that night and has not seen them for quite sometime, either before or after the
incident. Like the two other appellants, Lozano denied having any misunderstanding with Jaime Agbanlog,
Robert Agbanlog and Jimmy Wabe.[13]
Antonios father, Patricio, and his wife, Lolita, corroborated his claim that he was at home watching
television with them during the night in question. [14] Josie Comadre, Georges wife, testified that her
husband could not have been among those who threw a hand grenade at the house of the Agbanlogs
because on the evening of August 6, 1995, they were resting inside their house after working all day in the
farm.[15]
After trial, the court a quo gave credence to the prosecutions evidence and convicted appellants of
the complex crime of Murder with Multiple Attempted Murder,[16] the dispositive portion of which states:
WHEREFORE, in view of the foregoing, judgment is hereby rendered:

3. Ordering accused Antonio Comadre, George Comadre and Danilo Lozano to pay jointly and
severally Jimmy Wabe, Rey Camat, Gerry Bullanday and Jaime Agbanlog P30,000.00 as
indemnity for their attempted murder.
Costs against the accused.
SO ORDERED.
Hence, this automatic review pursuant to Article 47 of the Revised Penal Code, as
amended. Appellants contend that the trial court erred: (1) when it did not correctly and judiciously interpret
and appreciate the evidence and thus, the miscarriage of justice was obviously omnipresent; (2) when it
imposed on the accused-appellants the supreme penalty of death despite the evident lack of the quantum
of evidence to convict them of the crime charged beyond reasonable doubt; and (3) when it did not apply
the law and jurisprudence for the acquittal of the accused-appellants of the crime charged.[17]
Appellants point to the inconsistencies in the sworn statements of Jimmy Wabe, Rey Camat,
Lorenzo Eugenio and Gerry Bullanday in identifying the perpetrators. Wabe, Camat and Eugenio initially
executed a Sinumpaang Salaysay on August 7, 1995 at the hospital wherein they did not categorically
state who the culprit was but merely named Antonio Comadre as a suspect. Gerry Bullanday declared that
he suspected Antonio Comadre as one of the culprits because he saw the latters ten year-old son bring
something in the nearby store before the explosion occurred.
On August 27, 1995, or twenty days later, they went to the police station to give a more detailed
account of the incident, this time identifying Antonio Comadre as the perpetrator together with George
Comadre and Danilo Lozano.
A closer scrutiny of the records shows that no contradiction actually exists, as all sworn statements
pointed to the same perpetrators, namely, Antonio Comadre, George Comadre and Danilo
Lozano. Moreover, it appears that the first statement was executed a day after the incident, when Jimmy
Wabe, Rey Camat and Lorenzo Eugenio were still in the hospital for the injuries they sustained. Coherence
could not thus be expected in view of their condition. It is therefore not surprising for the witnesses to come
up with a more exhaustive account of the incident after they have regained their equanimity. The lapse of
twenty days between the two statements is immaterial because said period even helped them recall some
facts which they may have initially overlooked.
Witnesses cannot be expected to remember all the details of the harrowing event which unfolded
before their eyes. Minor discrepancies might be found in their testimony, but they do not damage the
essential integrity of the evidence in its material whole, nor should they reflect adversely on the witness
credibility as they erase suspicion that the same was perjured.[18]Honest inconsistencies on minor and
trivial matters serve to strengthen rather than destroy the credibility of a witness to a crime, especially so
when, as in the instant case, the crime is shocking to the conscience and numbing to the senses. [19]

1. Finding accused Antonio Comadre, George Comadre and Danilo Lozano GUILTY beyond
reasonable doubt of the complex crime of Murder with Multiple Attempted Murder and
sentencing them to suffer the imposable penalty of death;

Moreover, it was not shown that witnesses Jimmy Wabe, Rey Camat, Lorenzo Eugenio and Gerry
Bullanday had any motive to testify falsely against appellants. Absent evidence showing any reason or
motive for prosecution witnesses to perjure, the logical conclusion is that no such improper motive exists,
and their testimony is thus worthy of full faith and credit.

2. Ordering Antonio Comadre, George Comadre and Danilo Lozano to pay jointly and severally the
heirs of Robert Agbanlog P50,000.00 as indemnification for his death, P35,000.00 as
compensatory damages and P20,000.00 as moral damages;

The trial court is likewise correct in disregarding appellants defense of alibi and denial. For the
defense of alibi to prosper, the accused must prove not only that he was at some other place at the time of
the commission of the crime but also that it was physically impossible for him to be at the locus delicti or
within its immediate vicinity.[20]

99
Apart from testifying with respect to the distance of their houses from that of Jaime Agbanlogs
residence, appellants were unable to give any explanation and neither were they able to show that it was
physically impossible for them to be at the scene of the crime. Hence, the positive identification of the
appellants by eyewitnesses Jimmy Wabe, Jaime Agbanlog, Rey Camat and Gerry Bullanday prevails over
their defense of alibi and denial.[21]
It was established that prior to the grenade explosion, Rey Camat, Jaime Agbanlog, Jimmy Wabe
and Gerry Bullanday were able to identify the culprits, namely, appellants Antonio Comadre, George
Comadre and Danilo Lozano because there was a lamppost in front of the house and the moon was bright.
[22]

Appellants argument that Judge Bayani V. Vargas, the Presiding Judge of the Regional Trial Court of
San Jose City, Branch 38 erred in rendering the decision because he was not the judge who heard and
tried the case is not well taken.
It is not unusual for a judge who did not try a case to decide it on the basis of the record for the trial
judge might have died, resigned, retired, transferred, and so forth. [23] As far back as the case of Co Tao v.
Court of Appeals[24] we have held: The fact that the judge who heard the evidence is not the one who
rendered the judgment and that for that reason the latter did not have the opportunity to observe the
demeanor of the witnesses during the trial but merely relied on the records of the case does not render the
judgment erroneous. This rule had been followed for quite a long time, and there is no reason to go against
the principle now.[25]
However, the trial courts finding of conspiracy will have to be reassessed. The undisputed facts
show that when Antonio Comadre was in the act of throwing the hand grenade, George Comadre and
Danilo Lozano merely looked on without uttering a single word of encouragement or performed any act to
assist him. The trial court held that the mere presence of George Comadre and Danilo Lozano provided
encouragement and a sense of security to Antonio Comadre, thus proving the existence of conspiracy.
We disagree.
Similar to the physical act constituting the crime itself, the elements of conspiracy must be proven
beyond reasonable doubt. Settled is the rule that to establish conspiracy, evidence of actual cooperation
rather than mere cognizance or approval of an illegal act is required.[26]
A conspiracy must be established by positive and conclusive evidence. It must be shown to exist as
clearly and convincingly as the commission of the crime itself. Mere presence of a person at the scene of
the crime does not make him a conspirator for conspiracy transcends companionship. [27]
The evidence shows that George Comadre and Danilo Lozano did not have any participation in the
commission of the crime and must therefore be set free. Their mere presence at the scene of the crime as
well as their close relationship with Antonio are insufficient to establish conspiracy considering that they
performed no positive act in furtherance of the crime.
Neither was it proven that their act of running away with Antonio was an act of giving moral
assistance to his criminal act. The ratiocination of the trial court that their presence provided
encouragement and sense of security to Antonio, is devoid of any factual basis. Such finding is not
supported by the evidence on record and cannot therefore be a valid basis of a finding of conspiracy.
Time and again we have been guided by the principle that it would be better to set free ten men who
might be probably guilty of the crime charged than to convict one innocent man for a crime he did not
commit.[28] There being no conspiracy, only Antonio Comadre must answer for the crime.
Coming now to Antonios liability, we find that the trial court correctly ruled that treachery attended
the commission of the crime. For treachery to be appreciated two conditions must concur: (1) the means,

method and form of execution employed gave the person attacked no opportunity to defend himself or
retaliate; and (2) such means, methods and form of execution was deliberately and consciously adopted
by the accused. Its essence lies in the adoption of ways to minimize or neutralize any resistance, which
may be put up by the offended party.
Appellant lobbed a grenade which fell on the roof of the terrace where the unsuspecting victims
were having a drinking spree. The suddenness of the attack coupled with the instantaneous combustion
and the tremendous impact of the explosion did not afford the victims sufficient time to scamper for safety,
much less defend themselves; thus insuring the execution of the crime without risk of reprisal or resistance
on their part. Treachery therefore attended the commission of the crime.
It is significant to note that aside from treachery, the information also alleges the use of an
explosive[29] as an aggravating circumstance. Since both attendant circumstances can qualify the killing to
murder under Article 248 of the Revised Penal Code,[30] we should determine which of the two
circumstances will qualify the killing in this case.
When the killing is perpetrated with treachery and by means of explosives, the latter shall be
considered as a qualifying circumstance. Not only does jurisprudence[31] support this view but also, since
the use of explosives is the principal mode of attack, reason dictates that this attendant circumstance
should qualify the offense instead of treachery which will then be relegated merely as a generic
aggravating circumstance.[32]
Incidentally, with the enactment on June 6, 1997 of Republic Act No. 8294 [33] which also considers
the use of explosives as an aggravating circumstance, there is a need to make the necessary clarification
insofar as the legal implications of the said amendatory law vis--vis the qualifying circumstance of by
means of explosion under Article 248 of the Revised Penal Code are concerned. Corollary thereto is the
issue of which law should be applied in the instant case.
R.A. No. 8294 was a reaction to the onerous and anachronistic penalties imposed under the old
illegal possession of firearms law, P.D. 1866, which prevailed during the tumultuous years of the Marcos
dictatorship. The amendatory law was enacted, not to decriminalize illegal possession of firearms and
explosives, but to lower their penalties in order to rationalize them into more acceptable and realistic
levels.[34]
This legislative intent is conspicuously reflected in the reduction of the corresponding penalties for
illegal possession of firearms, or ammunitions and other related crimes under the amendatory law. Under
Section 2 of the said law, the penalties for unlawful possession of explosives are also lowered. Specifically,
when the illegally possessed explosives are used to commit any of the crimes under the Revised Penal
Code, which result in the death of a person, the penalty is no longer death, unlike in P.D. No. 1866, but it
shall be considered only as an aggravating circumstance. Section 3 of P.D. No. 1866 as amended by
Section 2 of R.A. 8294 now reads:
Section 2. Section 3 of Presidential Decree No. 1866, as amended, is hereby further amended to read as
follows:
Section 3. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Explosives. The penalty
of prision mayor in its maximum period to reclusion temporal and a fine of not less than Fifty thousand
pesos (P50,000.00) shall be imposed upon any person who shall unlawfully manufacture, assemble, deal
in, acquire, dispose or possess hand grenade(s), rifle grenade(s), and other explosives, including but not
limited to pillbox, molotov cocktail bombs, fire bombs, or other incendiary devices capable of producing
destructive effect on contiguous objects or causing injury or death to any person.

100
When a person commits any of the crimes defined in the Revised Penal Code or special law with
the use of the aforementioned explosives, detonation agents or incendiary devises, which results
in the death of any person or persons, the use of such explosives, detonation agents or incendiary
devices shall be considered as an aggravating circumstance. (shall be punished with the penalty of
death is DELETED.)
x x x x x x x x x.
With the removal of death as a penalty and the insertion of the term xxx as an aggravating
circumstance, the unmistakable import is to downgrade the penalty for illegal possession of explosives and
consider its use merely as an aggravating circumstance.
Clearly, Congress intended R.A. No. 8294 to reduce the penalty for illegal possession of firearms
and explosives. Also, Congress clearly intended RA No. 8294 to consider as aggravating circumstance,
instead of a separate offense, illegal possession of firearms and explosives when such possession is used
to commit other crimes under the Revised Penal Code.
It must be made clear, however, that RA No. 8294 did not amend the definition of murder under
Article 248, but merely made the use of explosives an aggravating circumstance when resorted to in
committing any of the crimes defined in the Revised Penal Code. The legislative purpose is to do away
with the use of explosives as a separate crime and to make such use merely an aggravating circumstance
in the commission of any crime already defined in the Revised Penal Code. Thus, RA No. 8294 merely
added the use of unlicensed explosives as one of the aggravating circumstances specified in Article 14 of
the Revised Penal Code. Like the aggravating circumstance of explosion in paragraph 12, evident
premeditation in paragraph 13, or treachery in paragraph 16 of Article 14, the new aggravating
circumstance added by RA No. 8294 does not change the definition of murder in Article 248.
Nonetheless, even if favorable to the appellant, R.A. No. 8294 still cannot be made applicable in this
case. Before the use of unlawfully possessed explosives can be properly appreciated as an aggravating
circumstance, it must be adequately established that the possession was illegal or unlawful, i.e., the
accused is without the corresponding authority or permit to possess. This follows the same requisites in
the prosecution of crimes involving illegal possession of firearm[35] which is a kindred or related offense
under P.D. 1866, as amended. This proof does not obtain in the present case. Not only was it not alleged
in the information, but no evidence was adduced by the prosecution to show that the possession by
appellant of the explosive was unlawful.
It is worthy to note that the above requirement of illegality is borne out by the provisions of the law
itself, in conjunction with the pertinent tenets of legal hermeneutics.
A reading of the title[36] of R.A. No. 8294 will show that the qualifier illegal/unlawful ...possession is
followed by of firearms, ammunition, or explosives or instruments... Although the term ammunition is
separated from explosives by the disjunctive word or, it does not mean that explosives are no longer
included in the items which can be illegally/unlawfully possessed. In this context, the disjunctive word or is
not used to separate but to signify a succession or to conjoin the enumerated items together. [37] Moreover,
Section 2 of R.A. 8294,[38] subtitled: Section 3.Unlawful Manufacture, Sale, Acquisition, Disposition or
Possession of Explosives, clearly refers to the unlawful manufacture, sale, or possession of explosives.
What the law emphasizes is the acts lack of authority. Thus, when the second paragraph of Section
3, P.D. No. 1866, as amended by RA No. 8294 speaks of the use of the aforementioned explosives, etc. as
an aggravating circumstance in the commission of crimes, it refers to those explosives, etc. unlawfully
manufactured, assembled, dealt in, acquired, disposed or possessed mentioned in the first paragraph of
the same section. What is per se aggravating is the use of unlawfully manufactured or possessed
explosives. The mere use of explosives is not.

The information in this case does not allege that appellant Antonio Comadre had unlawfully
possessed or that he had no authority to possess the grenade that he used in the killing and attempted
killings. Even if it were alleged, its presence was not proven by the prosecution beyond reasonable doubt.
Rule 110 of the 2000 Revised Rules on Criminal Procedure requires the averment of aggravating
circumstances for their application.[39]
The inapplicability of R.A. 8294 having been made manifest, the crime committed is Murder
committed by means of explosion in accordance with Article 248 (3) of the Revised Penal Code. The
same, having been alleged in the Information, may be properly considered as appellant was sufficiently
informed of the nature of the accusation against him.[40]
The trial court found appellant guilty of the complex crime of murder with multiple attempted murder
under Article 48 of the Revised Penal Code, which provides:
Art. 48. Penalty for complex crimes. When a single act constitutes two or more grave or less grave
felonies, or when an offense is a necessary means of committing the other, the penalty for the most
serious crime shall be imposed, the same to be applied in its maximum period.
The underlying philosophy of complex crimes in the Revised Penal Code, which follows the pro
reo principle, is intended to favor the accused by imposing a single penalty irrespective of the crimes
committed. The rationale being, that the accused who commits two crimes with single criminal impulse
demonstrates lesser perversity than when the crimes are committed by different acts and several criminal
resolutions.
The single act by appellant of detonating a hand grenade may quantitatively constitute a cluster of
several separate and distinct offenses, yet these component criminal offenses should be considered only
as a single crime in law on which a single penalty is imposed because the offender was impelled by a
single criminal impulse which shows his lesser degree of perversity.[41]
Under the aforecited article, when a single act constitutes two or more grave or less grave felonies
the penalty for the most serious crime shall be imposed, the same to be applied in its maximum period
irrespective of the presence of modifying circumstances, including the generic aggravating circumstance of
treachery in this case.[42] Applying the aforesaid provision of law, the maximum penalty for the most serious
crime (murder) is death. The trial court, therefore, correctly imposed the death penalty.
Three justices of the Court, however, continue to maintain the unconstitutionality of R.A. 7659
insofar as it prescribes the death penalty. Nevertheless, they submit to the ruling of the majority to the
effect that the law is constitutional and that the death penalty can be lawfully imposed in the case at bar.
Finally, the trial court awarded to the parents of the victim Robert Agbanlog civil indemnity in the
amount of P50,000.00, P35,000.00 as compensatory damages and P20,000.00 as moral damages.
Pursuant to existing jurisprudence[43] the award of civil indemnity is proper. However, the actual damages
awarded to the heirs of Robert Agbanlog should be modified, considering that the prosecution was able to
substantiate only the amount of P18,000.00 as funeral expenses.[44]
The award of moral damages is appropriate there being evidence to show emotional suffering on
the part of the heirs of the deceased, but the same must be increased to P50,000.00 in accordance with
prevailing judicial policy.[45]
With respect to the surviving victims Jaime Agbanlog, Jimmy Wabe, Rey Camat and Gerry
Bullanday, the trial court awarded P30,000.00 each for the injuries they sustained. We find this award
inappropriate because they were not able to present a single receipt to substantiate their

101
claims. Nonetheless, since it appears that they are entitled to actual damages although the amount thereof
cannot be determined, they should be awarded temperate damages of P25,000.00 each.[46]
WHEREFORE, in view of all the foregoing, the appealed decision of the Regional Trial Court of San
Jose City, Branch 39 in Criminal Case No. L-16(95) is AFFIRMED insofar as appellant Antonio Comadre is
convicted of the complex crime of Murder with Multiple Attempted Murder and sentenced to suffer the
penalty of death. He is ordered to pay the heirs of the victim the amount of P50,000.00 as civil indemnity,
P50,000.00 as moral damages and P18,000.00 as actual damages and likewise ordered to pay the
surviving victims, Jaime Agbanlog, Jimmy Wabe, Rey Camat and Gerry Bullanday, P25,000.00 each as
temperate damages for the injuries they sustained. Appellants Gregorio Comadre and Danilo Lozano are
ACQUITTED for lack of evidence to establish conspiracy, and they are hereby ordered immediately
RELEASED from confinement unless they are lawfully held in custody for another cause. Costs de oficio.
In accordance with Section 25 of Republic Act 7659 amending Article 83 of the Revised Penal Code,
upon finality of this Decision, let the records of this case be forwarded to the Office of the President for
possible exercise of pardoning power.
SO ORDERED.
Davide, Jr., C.J., Puno, Vitug, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez,
Carpio, Austria-Martinez, Corona, Carpio-Morales, Azcuna and Tinga, JJ., concur.
Callejo, Sr., J., see concurring and dissenting opinion.

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 159734

November 29, 2006

ROSARIO V. ASTUDILLO, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.
x----------------------------------------x
G.R. No. 159745

November 29, 2006

102
FILIPINA M. ORELLANA, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
CARPIO MORALES, J.:
Petitioners Rosario "Baby" Astudillo (Rosario) and Filipina "Lina" Orellana (Filipina) via separate petitions
for review on certiorari seek a review of the Decision 1 and the Resolution2 of the
Court of Appeals affirming with modification that of the Regional Trial Court of Quezon City, Branch
783 (the trial court) finding them guilty of Qualified Theft and denying their Motions for Reconsideration,
respectively.
On complaint of Western Marketing Corporation (Western), petitioners were collectively charged with
Qualified Theft, along with Flormarie Robel (Flormarie) and Roberto Benitez (Benitez), in Criminal Case
No. Q-96-67827, under an Information dated September 9, 1996 reading:
The undersigned accuses FLORMARIE CALAJATE ROBEL, ROBERTO F. BENITEZ, ROSARIO
ASTUDILLO a.k.a. "Baby" and FILIPINA ORELLANA Y MACARAEG of the crime of QUALIFIED THEFT as
follows:
That during the period comprised from January 1996 to February 1996, the above-named accused, being
then employed as relieving cashier/service-in-charge (Flormarie Calajate Robel), supervisor/floor manager
(Roberto F. Benitez[)], sales clerks (Rosario Astudillo a.k.a. "Baby" and Filipina Orellana y Macaraeg) at
the WESTERN MARKETING CORPORATION, represented by LILY CHAN ONG, and as such had free
access to the company premises, materials, supplies and items store[d] thereat, conspiring,
confederating together and mutually helping one another, with grave abuse of confidence and intent of
gain, and without the consent of the owner thereof, did, then and there wilfully, unlawfully and feloniously
take, steal and carry away two (2) booklets of Sales Invoices Nos. from 128351 to 128400 of the said
corporation and thereafter use the said invoices in the preparation of fictitious sales and withdrawals of
merchandise with the total value of P797,984.00 Philippine Currency, belonging to the said WESTERN
MARKETING CORPORATION, to its damage and prejudice.

That on or about the period from May 1, 1994 to February 16, 1996, in Quezon City, Philippines, the
above-named accused, being then employed as sales representative/clerk at the WESTERN MARKETING
CORPORATION (P. Tuazon Branch), represented by LILY CHAN ONG, and as such had free access to
the company cash sales, with grave abuse of confidence and intent of gain, and without the consent of the
owner thereof, did, then and there, wilfully, unlawfully and feloniously take, steal and carry away the excess
sum/amount between the tag price and discounts price in the sum of P12,665.00, belonging to the said
WESTERN MARKETING CORPORATION, to its damage and prejudice in the amount aforementioned.
CONTRARY TO LAW.
xxx
The undersigned accuses FILIPINA ORELLANA Y MACARAEG of the crime of QUALIFIED THEFT,
committed as follows:
That on or about the period from May 1, 1994 to January 27, 1996, in Quezon City, Philippines, the abovenamed accused, being then employed as Sales clerk at the WESTERN MARKETING CORPORATION,
represented by LILY CHAN ONG, and as such had free access to the company cash sales, with grave
abuse of confidence and intent of gain, and without the consent of the owner thereof, did,
then and there, wilfully, unlawfully and feloniously take, steal and carry away the excess sum/amount
between the tag price and discount price of each and every items sold by her to company customers, in
the sum of P4,755.00, belonging to the said WESTERN MARKETING CORPORATION, to its damage and
prejudice in the amount aforementioned.
CONTRARY TO LAW.5
Petitioners, Benitez and Javier, with the assistance of their respective counsel, pleaded not guilty during
arraignment.6 Flormarie has remained at large.
By Order of December 10, 1997, Criminal Case No. Q-96-67828, the case against Javier, was dismissed
on account of the desistance of the private complainant.7 The remaining cases against petitioners and
Benitez were consolidated for joint trial.

CONTRARY TO LAW.4 (Emphasis supplied)

By Decision of May 28, 1998, the trial court found the accused-herein petitioners and Benitez guilty beyond
reasonable doubt of Qualified Theft and were accordingly sentenced as follows:

Additionally, petitioners, Benitez and Norberto "Carlo" Javier (Javier) were individually charged also with
Qualified Theft in four (4) separate Informations all dated September 9, 1996.

IN CRIMINAL CASE NO. Q-96-67827

The Information indicting petitioner Rosario, docketed as Criminal Case Nos. Q-96-67829, and that
indicting petitioner Filipina, docketed as Q-96-67830, respectively read:

Accused Roberto F. Benitez, Rosario Astudillo a.k.a. "Baby", and Filipina Orellana y
Macaraeg shall each suffer imprisonment of TWELVE (12) YEARS and ONE (1) DAY, as minimum,
to FOURTEEN (14) YEARS, as maximum, of reclusion temporal, and to pay the amount of P797,984.00,
jointly and severally for their civil liability;

The undersigned accuses ROSARIO ASTUDILLO a.k.a. "Baby" of the crime of QUALIFIED THEFT as
follows:

IN CRIMINAL CASE NO. Q-96-67829

103
Accused Rosario Astudillo a.k.a. "Baby", shall suffer imprisonment of TWELVE (12) YEARS and ONE
(1) DAY, as minimum, to FOURTEEN (14) YEARS, as maximum, of reclusion temporal, and to pay the
amount of P12,665.00 for her civil liability;

years and 1 day of prision mayor in its minimum period as minimum to 10 years and 1 day
of prision mayor in its maximum period as maximumand to pay to the offended party the
amount of P11,079.00 as reparation for the stolen goods.

IN CRIMINAL CASE NO. Q-96-67830

SO ORDERED.9 (Emphasis in the original; underscoring supplied)

Accused Filipina Orellana y Macaraeg, shall suffer imprisonment of TWELVE (12) YEARS and ONE (1)
DAY,as minimum, to FOURTEEN (14) YEARS, as maximum, of reclusion temporal, and to pay the sum
of P4,755.00for her civil liability; and

After petitioners and Benitezs respective Motions for Reconsideration were denied by the Court of
Appeals, petitioners filed these separate petitions for review which were, on motion of the Office of the
Solicitor General, ordered consolidated.10

IN CRIMINAL CASE NO. Q-96-67831

In her petition, Rosario proffers the following assignment of errors:

Accused Roberto F. Benitez, shall suffer imprisonment of TWELVE (12) YEARS and ONE (1) DAY, as
minimum, to FOURTEEN (14) YEARS, as maximum, of reclusion temporal, and to pay the amount of
P11,079.00 for his civil liability.

THE COURT A QUO GRIEVOUSLY ERRED WHEN IT CONSIDERED AN APOLOGY FOR

BREACH OF PROCEDURE AS AN ADMISSION OF A CRIME.

The penalties imposed on all the accused are quite harsh, but as the maxim goes, "Dura Lex Sed Lex", the
Court could not impose otherwise.

THE COURT A QUO ERRED WHEN IT DEPARTED [FROM] THE NORMAL COURSE OF
JUDICIAL PROCEEDING AND CONVICTED PETITIONER OF THE OFFENSE OF
THEFT WITHOUT THE ESSENTIAL ELEMENT OF UNLAWFUL TAKING.

SO ORDERED.8 (Emphasis in the original; underscoring supplied)

Petitioners and Benitez elevated their cases on appeal. The Court of Appeals affirmed the trial courts
judgment with modification as to the penalties imposed, thus:
WHEREFORE, the decision dated May 28, 1998 of the Regional Trial Court of Quezon City, Branch 78
isAFFIRMED with MODIFICATION.
1. In Criminal Case No. Q-96-67827, appellants Roberto Benitez, Rosario Astudillo and Filipina
Orellana are found guilty beyond reasonable doubt of qualified theft and are hereby sentenced
to suffer the penalty ranging from 10 years and 1 day of prision mayor in its maximum period to
15 years of reclusion temporalas maximum, and to pay to the offended party the amount
of P797,984.00, jointly and severally, as reparation for the unrecovered stolen merchandise;
2. In Criminal Case No. Q-96-67829, appellant Rosario Astudillo is found guilty beyond
reasonable doubt of qualified theft and is sentenced to suffer imprisonment ranging from 10
years and 1 day of prision mayor in its maximum period as minimum to 14 years, 8 months and
1 day of reclusion temporal in its medium period as maximum, and to pay to the offended party
amount of P12,665.00 as reparation for the stolen goods.
3. In Criminal Case No. Q-96-67830, appellant Filipina Orellana is found guilty beyond
reasonable doubt of qualified theft and is sentenced to suffer imprisonment ranging from 4
years, 2 months and 1 day of prision correccional in its maximum period as minimum to 8 years
and 1 day of prision mayor in its medium period as maximum and to pay to the offended party
the amount of P4,755.00 as reparation for the stolen property;
4. In Criminal Case No. Q-96-67831, appellant Roberto Benitez is found guilty beyond
reasonable doubt of qualified theft and is sentenced to suffer imprisonment ranging from 6

THE COURT OF A QUO (sic) GRIEVOUSLY ERRED WHEN IT ABUSED ITS DISCRETION TO
ARRIVE AT CONCLUSIONS OF FACTS BY INDECENTLY CONSIDERING AND DISTORTING
EVIDENCE TO CONFORM TO ITS FLAWED CONCLUSION.11 (Underscoring supplied)
On her part, Filipina raises the following issues:
WHETHER OR NOT THE COURT OF APPEALS GRAVELY ERRED IN AFFIRMING THE
DECISION OF THE REGIONAL TRIAL COURT CONVICTING THE PETITIONER FILIPINA
ORELLANA Y MACARAEG OF THE CRIME CHARGED DESPITE INSUFFICIENCY OF
EVIDENCE
WHETHER OR NOT AN EXTRA-JUDICIAL ADMISSION OBTAINED THROUGH TRICKERY
AND SCHEME WITHOUT THE BENEFIT AND ASSISTANCE OF COUNSEL IS A SUFFICIENT
GROUND TO CONVICT AN ACCUSED
WHETHER OR NOT CONSPIRACY MAY BE PROVED SIMPLY ON THE GROUND THAT ALL
ACCUSED ARE CO-EMPLOYEES AND WORKING IN ONE COMPANY 12 (Underscoring
supplied)
From the evidence for the prosecution, the following version is gathered:
Petitioners were hired by Western, a chain of appliance stores, as salespersons at its branch at P. Tuazon
Boulevard in Cubao, Quezon City. Benitez and Flormarie were hired as floor manager and service-incharge/cashier-reliever, respectively, at the same branch of Western.13

104
On February 21, 1996, in the course of preparing the January monthly sales report of the P. Tuason branch
of Western, Branch Accountant Marlon Camilo (Camilo) noticed that the computer printout of the monthly
sales report revealed a belated entry for Cash Sales Invoice No. 128366. Upon verification from Westerns
head office, Camilo learned that the branch received the booklet containing 50 cash sales invoices to
which Invoice No. 128366 formed part.
Camilo then confirmed that the booklet of sales invoices bearing numbers 128351 up to 128400 was
missing. And he noted that the daily cash collection report did not reflect any remittance of payments from
the transactions covered by the said invoices.

Kay Ate Lolit Tiffin Carrier

Cookware Set 7 pcs.
Ate Lina Cookware Set 7 pcs.
Norma Cookware Set 7 pcs. Airpot Lemon
Robert National Elec. Stove HNK-211 Rice Bowl

Some cash sales invoices were later recovered. From recovered Invoice No. 128366, Camilo found out
that Flormarie was the one who filled it up and received the payment reflected therein.
From recovered Invoice Nos. 128358 and 128375, Camilo found out that the goods covered thereby were
missing. Concluding that the transactions under the said invoices were made but no payment was remitted
to Western, Camilo reported the matter to Ma. Aurora Borja (Aurora), the branch assistant manager.
Benitez soon approached Camilo and requested him not to report the matter to the management, he
cautioning that many would be involved.
Aurora and Camilo later met with Benitez, Filipina, cashiers Rita Lorenzo (Rita) and Norma Ricafort
(Norma) during which Benitez and Filipina pleaded with Camilo not to report the matter to the
management. Flormarie, who called on Camilo by telephone, made a similar plea as she admitted to
stealing the missing booklet of invoices, she explaining that her father was sick and had to undergo
medical operation, and offering to pay for the goods covered thereby.14

Ito lahat ay nilabas namin ng linggo 02-18-96 ng gabi. Ako po ay nangangako na hindi na ito uulitin ang
lahat ng mga kasalanan sa Western ay kay Mrs. Lily Ong at Pinapangako ko po na Sumpa man kasama
ang pamilya at salamat din po dahil ako ay pinatawad nila at binigyan pa ng isang pagkakataon. Maraming
maraming salamat po.17 (Emphasis and underscoring supplied)
In a still subsequent meeting with Lily, Filipina made a written statement in the formers presence reading:
Ako po si Lina M. Orellana na nangangako kay Ate Lily na hinding-hindi ko na uulitin iyong naglalabas ng
mga items tulad ng cookware set at casserole na ang mga kasama ko po rito ay sina Lolit, Norma, Robert
na isinagawa namin. Na kami po si Robert ang nagsabi kay Lolit na maglabas ng stock pero bago po
namin ginagawa iyon nagsabi po kami kay Lolit na sumagot naman ng ng oo pero kami po ni Robert and
nagkumbinsi sa dalawa. Kung mauulit pa ho ito kung anuman po ang gusto ni Mam Lily na gawin sa akin
ay lubos ko pong tatanggapin.18 (Underscoring supplied)

In the meantime, Flormarie had gone absent without leave.

Also in a meeting with Lily, Rosario, who was earlier implicated by Flormaries husband in his telephone
conversation with Aurora,19 wrote:

Aurora eventually reported the case of the missing invoices and the shortage of cash sales collection to
Westerns branch manager Lily Chan Ong (Lily).15

Mam Lily,

In a subsequent meeting with Lily, Filipina admitted having brought home some appliances while Benitez
gave a handwritten statement reading:16
Ako si Roberto F. Benitez ay humihingi po ako ng tawad kay Mrs. Lily Ong at Western Marketing Corp. Ang
mga kasalanan ako po ay:
1) Ang pagkuha ng Promo na dapat ay para sa Customer.
2) Ang paggamit ng gift check na para rin sa Customer ang kinukuha ko at ako ang gumagamit.
3) Ang pagamit na rin sa Pera na tinatawag na Short-Over ay amin ding ginagawa. Example
nagbayad ang Customer ng 9000 and C.P. 8,900 and 9,000 ay nasulat sa original na INV.
4) Ang pagkuha na rin ng mga Product tulad ng sumusunod, na ako nagplano at si Ate Lina.

Sana ho Ate Lily patawarin ninyo ako sa nagawa kong kasalanan, regarding sa "Short-over". Siguro ho
nagawa ko lang ho yon sa pakikisama sa kanila, sa mga kasamahan ko dito sa Nuestra, alam ko ho na
mali yon kaya pinagsisisihan ko ho yon. Sana ho mapatawad ninyo ako sa nagawa kong kasalan.
Yun pong tungkol sa kaso ni Marie, wala ho akong alam don. Kumare ko nga ho sya pero yung
pagnanakaw niyang ginawa wala akong kinalaman don. Kahit ho siguro magkautang-utang ako hindi ko
magagawa yon.
Inuulit ko ho, sana ho mapatawad ninyo uli ako sa nagawa kong kasalanan at pinapangako ko ho
nahinding-hindi ko na uulitin.
Maraming salamat ho,
(Sgd.)Baby Astudillo

105
P.S. yun ho palang perang na-oover naming, pinaghahatian po namin nila Rita at ni
Marie.20(Underscoring supplied)

3.3. INVOICING Sa pamamagitan ng mga resibong na may tatak na "paid" na ibinibigay ni Robert sa
aking nailalabas ko ang mga paninda na akin namang naibebenta.22

Still in a separate meeting with Lily and her siblings on one hand, and Flormarie and her husband on the
other, Flormarie wrote what she knew of the incident as follows:
Ito ang nalalaman ko kung paanong nangyari ito sa loob ng tindahan ng Western Mktg. P. Tuazon Branch.
*SHORT-OVER
Ang tag price, kung ang customer ay hindi tumawad, binabago na lang ang presyo sa duplicate copy and
then kinukuha na lang sa cashier ang pera tapos naghahati-hati na lang si robert, baby, lina, lolit, Rita at
Marie, Norma, Fe.
xxx

x x x x (Emphasis and underscoring supplied)

Flormarie and her sister, together with Lily, later executed a statement before Cubao SPO1 Jose Gil
Gregorio, reading:
TANONG: Ayon kay MARLON CAMILO, Western Marketing Corp Branch Accountant nadiskubre niya ang
pagkawala ng isang booklet ng Sales Cash Invoice (50pcs.) na may numerong 128351 to 128400 nitong
mga nakaraang araw may kinalaman ka ba sa nasabing pangyayari?
SAGOT: Opo.
T : Kung mayroon kang kinalaman sa nasabing pangyayari ito ba ay kusang loob mong ginawa?

*INVOICE

S : Itinuro lang po ito sa akin.

Ito ay itinuro sa akin ni Kuya Robert, kukunin ko ang invoice at pagkatapos binigyan niya ako ng (3 resibo
series) at hindi ko na po alam kung anong ginawa na niya sa invoice.

T : Ano ang iyong ginawa?

Ang paraan magreresibo ako tatatakan ko ng paid kasama kung sino ang taong maglalabas ng unit tapos
ibebenta ko na yong unit yung pera kinukuha ko na bibigyan ko lang siya ng kahit magkanong amount
kung sino yong taong inutusan ko.21 (Underscoring supplied)
Flormarie, in the company of her sister Delma and Lily, subsequently appeared before a notary public to
execute a similar statement reading:

S : Ako po ang kumuha noong nawawalang isang booklet ng Cash Sales Invoice sa turo ni ROBERT
BENITEZ na Sales Supervisor sa Western Marketing Corp.
xxxx
T : Sa tatlong series ng Cash Sales Invoice na napunta sa iyo ano ang iyong ginawa?
S : Ginamit ko po ito sa paglalabas ng mga items/unit sa Western Marketing Corp.

xxxx
2. Ako ngayon ay kusang loob na lumapit sa Western upang humingi ng kapatawaran sa aking mga
nagawa at upang makipagkasundo sa isang maayos na pagbabayad sa mga halagang aking nakuha sa
Western at mahalaga sa lahat, upang isiwalat ang mga taong kasangkot sa katiwaliang ito at mga paraan
ng paggawa nito.
3. Halos lahat ng mga kawani ng tindahan ay kasangkot sa mga sumusunod na katiwalian:
3.1. Short-Over Ito ay ang pagtatala ng mas mababang halaga ng paninda sa mga "duplicate copies" ng
resibo kapag ang kustomer ay hindi tumawad sa "tag price" at nagbayad ng "cash". Ang sobrang halaga
ay pinaghahatian namin nina ROBERT BENITEZ ("Robert"); ROSARIO ALTUDILLO
("Baby"); FILIPINA ORELLANA ("Lina"); LOLIT BORJA ("Lolit"); RITA LORENZO ("Rita"); NORMA
RICAFORT ("Norma") at FE CABIGAN ("Fe").
xxxx

xxxx
T : Sa maikling salaysay, ikuwento mo nga sa akin kung papaano mo isinagawa ang iyong pagnanakaw sa
pag-gamit ng mga Cash Sales Invoice?
S : Ganito po ang ginawa ko, iniuwi ko sa aming bahay yung tatlong series ng resibo na ibinigay sa akin ni
ROBERT BENITEZ at tinuruan po niya ako na sulatan ko yung mga resibo ng mga items na gusto kong
ilabas, at pagkatapos po ay ibinalik ko ito sa Western Marketing Corp at binigay ko ito kay ROBERT
BENITEZ, at ang sabi niya sa akin ay siya na raw ang bahala na magpalabas noong mga items na aking
isinulat sa resibo.
xxxx
T : Bukod kay ROBERT BENITEZ may mga tao bang karamay sa naganap na transaksiyon?
S : Mayroon po.

106
T : Sino-sino ito?

waivers are demonstrated by the prosecution at the trial, no evidence obtained as a result of interrogation
can be used against him.

S : Sina LINA ORELLANA po, Sales Lady po, ROSARIO ASTUDILLO, sales lady.
T : Sa iyong pagkakaalam, ano ang kanilang mga partisipasyon na naganap na transaksiyon?
S : Si LINA ORELLANA po ang sales lady, at siya rin ang may pirma doon sa resibo, at ganoon din po
itong si ROSARIO ASTUDILLO.
xxxx
T : Magkano naman ang ibinibigay sa iyo ni ROBERT BENITEZ kapag nailabas ng yung mga items doon
sa resibo na iyong ginawa?
S : Hindi ko na po matandaan basta pinapartihan niya ako at yung dalawang sales lady.23 (Emphasis
and underscoring supplied)
In an inventory of stocks conducted at the branch office of Western, several other appliances were found
missing as were unauthorized deductions from the cash collections.24 The total missing merchandise
was valued atP797,984.00 as reflected in the inventory report.25 And discrepancies between the actual
sales per cash sales invoice and the cash remittance to the company in the sum of P34,376.00 for the
period from January 1994 to February 199626 were also discovered, prompting Western to initiate the
criminal complaints for Qualified Theft.
Both petitioners raise as issue whether the employees extra-judicial admissions taken before an employer
in the course of an administrative inquiry are admissible in a criminal case filed against them.
Petitioners posit in the negative. They argue that as their extra-judicial statements were taken without the
assistance of counsel, they are inadmissible in evidence, following Section 12, Article III of the 1987
Constitution.27
It bears noting, however, that when the prosecution formally offered its evidence, petitioners failed to file
any objection thereto including their extra-judicial admissions. 28 At any rate, this Court answers the issue
in the affirmative. People v. Ayson29 is instructive:
In Miranda, Chief Justice Warren summarized the procedural safeguards laid down for a person in police
custody, "in-custody interrogation" being regarded as the commencement of an adversary proceeding
against the suspect.
He must be warned prior to any questioning that he has the right to remain silent, that anything he says
can be used against him in a court of law, that he has the right to the presence of an attorney, and that if
he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.
Opportunity to exercise those rights must be afforded to him throughout the interrogation. After such
warnings have been given, such opportunity afforded him, the individual may knowingly and intelligently
waive these rights and agree to answer or make a statement. But unless and until such warnings and

The objective is to prohibit "incommunicado interrogation of individuals in a police-dominated atmosphere,

resulting in self-incriminating statement without full warnings of constitutional rights."
The rights above specified, to repeat, exist only in "custodial interrogations," or "in-custody
interrogation of accused persons." And, as this Court has already stated, by custodial interrogation
is meant "questioning initiated by law enforcement officers after a person has been taken into
custody or otherwise deprived of his freedom of action in any significant way."30 (Emphasis and
underscoring supplied)
Ayson adds:
The employee may, of course, refuse to submit any statement at the investigation, that is his privilege. But
if he should opt to do so, in his defense to the accusation against him, it would be absurd to reject his
statements, whether at the administrative investigation, or at a subsequent criminal action brought against
him, because he had not been accorded, prior to his making and presenting them, his "Miranda rights" (to
silence and to counsel and to be informed thereof, etc) which, to repeat, are relevant in custodial
investigations.31
People v. Tin Lan Uy, Jr. 32 is similarly instructive:
Clearly, therefore, the rights enumerated by the constitutional provision invoked by accused-appellant are
not available before government investigators enter the picture. Thus we held in one case (People v.
Ayson, [supra]) that admissions made during the course of an administrative investigation by Philippine
Airlines do not come within the purview of Section 12. The protective mantle of the constitutional provision
also does not extend to admissions or confessions made to a private individual, or to a verbal admission
made to a radio announcer who was not part of the investigation, or even to a mayor approached as a
personal confidante and not in his official capacity. (Emphasis and underscoring supplied)
The Court of Appeals did not thus err in pronouncing that petitioners were not under custodial investigation
to call for the presence of counsel of their own choice, hence, their written incriminatory statements are
admissible in evidence.
The extra-judicial confession33 before the police of Flormarie (who, as earlier stated, has remained at
large) in which she incriminated petitioners bears a different complexion, however, as it was made under
custodial investigation. When she gave the statement, the investigation was no longer a general inquiry
into an unsolved crime but had begun to focus on a particular suspect. The records show that Camilo had
priorly reported the thievery to the same police authorities and identified Flormarie and Benitez as initial
suspects.
It is always incumbent upon the prosecution to prove at the trial that prior to in-custody questioning, the
confessant was informed of his constitutional rights. The presumption of regularity of official acts does not
prevail over the constitutional presumption of innocence. Hence, in the absence of proof that the arresting
officers complied with these constitutional safeguards, extrajudicial statements, whether inculpatory or
exculpatory, made during custodial investigation are inadmissible and cannot be considered in the

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adjudication of a case. In other words, confessions and admissions in violation of Section 12 (1), Article III
of the Constitution are inadmissible in evidence against the declarant and more so against third
persons. This is so even if such statements are gospel truth and voluntarily given.34 (Emphasis and
underscoring supplied)
Petitioners at all events argue that their written statements were obtained through deceit, promise, trickery
and scheme, they claiming that Lily dictated to them their contents. There is nothing on record, however,
buttressing petitioners claim other than their self-serving assertion. The presumption that no person of
normal mind would deliberately and knowingly confess to a crime unless prompted by truth and
conscience35 such that it is presumed to be voluntary until the contrary is proved thus stands. 36
The circumstances surrounding the execution of the written admissions likewise militate against petitioners
bare claim. Petitioners admittedly wrote their respective letters during office hours in Lilys office which was
located in the same open booth or counter occupied by the cashier and credit card in-charge.37 And this
Court takes note of the observation of the trial court that petitioners written notes were "neatly written in
Tagalog, and not in broken Tagalog as spoken by Lily Ong".38
In another vein, Rosario labels her written statement as a mere "apology for breach of procedure".39 Her
resort to semantics deserves scant consideration, however. A cursory reading of her letter reveals that she
confessed to the taking of "short-over."
There is a "short-over" when there is a discrepancy between the actual amount collected appearing in the
yellow (warehouse) copy and the remitted amount appearing in the blue (accounting) copy.40
In criminal cases, an admission is something less than a confession. It is but a statement of facts by the
accused, direct or implied, which do not directly involve an acknowledgment of his guilt or of his criminal
intent to commit the offense with which he is bound, against his interests, of the evidence or truths
charged. It is an acknowledgment of some facts or circumstances which, in itself, is insufficient to authorize
a conviction and which tends only to establish the ultimate facts of guilt. A confession, on the other hand, is
an acknowledgment, in express terms, of his guilt of the crime charged.41
The issue on the admissibility of petitioners respective extra-judicial statements aside, an examination of
the rest of the evidence of the prosecution does not set petitioners free.

Cashier Rita testified in a detailed and categorical manner how the petitioners took the alleged amounts of
"short-over" deducted from the sum of cash collections. The tampered invoices presented by the
prosecution which glaringly show the variance in the amounts corroborate Ritas claim.
Rosario contends, however, that there was no "unlawful taking" since the amounts of "short-over" did not
belong to Western. The argument does not lie. The "excess" sums formed part of the selling price and
were paid to, and received by, Western. The discrepancy in the amounts came about on account of the
alteration in the copies of the invoices which should have faithfully reflected the same amount paid by the
customer.
As for petitioners claim of entitlement to the "excess" amounts as salespersons commission, it was not
established in evidence.
Even assuming that the "short-over" was intended to defray sundry expenses, it was not incumbent upon
the salespersons to claim them and automatically apply them to the miscellaneous charges. It was beyond
the nature of their functions. The utilization of the "short-over" was not left to the discretion of the
salespersons. The element of unlawful taking was thus established.
A further review of the nature of petitioners functions shows, however, that the element of grave abuse of
confidence is wanting in the case.
Q : As an accountant employee since June 1995, Mr. Witness, you are familiar that in the procedure in any
particular branch of Western Marketing Corporation, are you aware if somebody buys an item from one
store, do you know the flow of this sale?
A : Yes, sir.
Q : In fact, in the store there are employees which are assigned with specific duties or functions, is it not?
A : Yes, sir.
Q : Like for instance, lets take the case of Filipina Orellana. Her function is merely to entertain customers
who go to the store and intend to buy one of the items that are displayed, is it not?
A : Yes, sir.

The elements of the crime of Theft as provided for in Article 308 of the Revised Penal Code are: (1) that
there be taking of personal property; (2) that said property belongs to another; (3) that the taking be done
with intent to gain; (4) that the taking be done without the consent of the owner; and (5) that the taking be
accomplished without the use of violence against or intimidation of persons or force upon things.42

Q : So, if this customer is resolved to buy one item, Filipina Orellana as a sales clerk, all she has to do is
to refer the particular customer to another employee of the company, is that correct?
A : Yes, sir.

Theft becomes qualified when any of the following circumstances is present: (1) the theft is committed by a
domestic servant; (2) the theft is committed with grave abuse of confidence; (3) the property stolen is
either a motor vehicle, mail matter or large cattle; (4) the property stolen consists of coconuts taken from
the premises of a plantation; (5) the property stolen is fish taken from a fishpond or fishery; and (6) the
property was taken on the occasion of fire, earthquake, typhoon, volcanic eruption, or any other calamity,
vehicular accident or civil disturbance.43

Q : Now, you have also employees who are preparing invoices, they are called invoicers, is it not?
A : Yes, sir.

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Q : So when Filipina Orellana refers this customer to the invoicer, the invoicer now will take over
from that function of Filipina Orellana after referring this customer?

It is settled that conspiracy exists when two or more persons come to an agreement concerning the
commission of a crime and decide to commit it. To effectively serve as a basis for conviction, conspiracy
must be proved as convincingly as the criminal act. Direct proof is not absolutely required for the purpose.

A : Yes, sir.
Q : And this invoicer now will refer the invoice for this particular item for payment to the cashier of the
company, is it not?
A : Yes, sir.

A review of the inference drawn from petitioners acts before, during, and after the commission of the crime
to indubitably indicate a joint purpose, concert of action and community of interest is thus in order. 51
In Rosarios case, the Office of the Solicitor General made a sweeping conclusion that the extent of her
participation in the act of taking merchandise need not be specified since she attributed her other act of
taking "short-over" to "pakikisama" or companionship.52 The conclusion does not persuade.

Q : And it is the cashier who will receive the payment from this customer?
A : Yes, sir.
Q : And in fact, the customer or the cashier will receive the exact amount of payment as reflected in the
invoice that was prepared by the invoicer, is it not?
A : Yes, sir.
Q : From that point up to the payment, Filipina Orellana has no more hand in that particular
transaction, her function is only to entertain and refer the customer for sales purposes, that is
correct?
A : Yes, sir.44 (Emphasis, underscoring and italics supplied)
Mere circumstance that petitioners were employees of Western does not suffice to create the relation of
confidence and intimacy that the law requires.45 The element of grave abuse of confidence requires that
there be a relation of independence, guardianship or vigilance between the petitioners and
Western.46 Petitioners were not tasked to collect or receive payments. They had no hand in the
safekeeping, preparation and issuance of invoices. They merely assisted customers in making a purchase
and in demonstrating the merchandise to prospective buyers.47 While they had access to the
merchandise, they had no access to the cashiers booth or to the cash payments subject of the offense.
Lily conceded that petitioners were merely tasked to "assist in the sales from day to day" 48 while Camilo
admitted that the cashier is the custodian of the cash sales invoices and that no other person can handle
or access them.49 The limited and peculiar function of petitioners as salespersons explains the lack of
that fiduciary relationship and level of confidence reposed on them by Western, which the law on Qualified
Theft requires to be proven to have been gravely abused. Mere breach of trust is not enough. Where the
relationship did not involve strict confidence, whose violation did not involve grave abuse thereof, the
offense committed is only simple theft.50 Petitioners should therefore be convicted of simple theft, instead
of Qualified Theft.
On Criminal Case No. Q-96-67827 respecting petitioners collective guilt in taking away merchandise by
making it appear that certain items were purchased with the use of stolen cash sales invoices:

Mere companionship does not establish conspiracy.53 As indicated early on, there were two different sets
of imputed acts, one individual and the other collective. Rosarios admission was material only to her
individual guilt as she referred only to the "short-over". The wording of her admission cannot be construed
to extend to the other offense charging conspiracy under which no overt act was established to prove that
Rosario shared with, and concurred in, the criminal design of taking away Westerns merchandise.1wphi1
The prosecution relied on Auroras statement that Flormaries husband mentioned Rosario as among those
involved in the anomaly.54 Under the hearsay evidence rule, however, a witness can testify only to those
facts which he knows of his personal knowledge, that is, those which are derived from his own perception,
except as otherwise provided in the Rules.55
Aurora testified that she witnessed Filipina, along with Benitez, in inter alia hiring third persons to pose as
customers who received the items upon presenting the tampered invoice.56
Filipina in fact gave a written statement acknowledging her own act of asporting the merchandise. The rule
is explicit that the act, declaration or omission of a party as to a relevant fact may be given in evidence
against him.57 The declaration of an accused acknowledging his guilt of the offense charged, or of any
offense necessarily included therein, may be given in evidence against him.58
Moreover, Filipinas statement dovetailed with Benitezs admission, which was corroborated by Flormaries
confessions.59 In cases alleging conspiracy, an extra-judicial confession is admissible against a coconspirator as a circumstantial evidence to show the probability of participation of said co-conspirator in
the crime committed.60
Except with respect to Rosario, then, this Court finds well-taken the trial courts observation that the
admissions were full of substantial details as to how the accused conspired to commit the criminal acts and
as to how they manipulated the sales transactions at Western to effect and consummate the theft of the
goods.
In fine, insofar as Filipina is concerned, a thorough evaluation of the evidence warrants the affirmance of
her guilt beyond reasonable doubt of having conspired with Benitez et al.

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On the imposition of the correct penalty, People v. Mercado61 is instructive. In the determination of the
penalty for Qualified Theft, note is taken of the value of the property stolen, which is P797,984.00. Since
the value exceedsP22,000.00, the basic penalty is prision mayor in its minimum and medium periods to be
imposed in the maximum period Eight (8) Years, Eight (8) Months and One (1) Day to Ten (10) Years
of prision mayor.
To determine the additional years of imprisonment, the amount of P22,000.00 is deducted
from P797,984.00, which yields a remainder of P775,984.00. This amount is then divided by
P10,000.00, disregarding any amount less than P10,000.00. The end result is that 77 years should be
added to the basic penalty.
The total imposable penalty for simple theft should not exceed 20 years, however.
As for the penalty for Qualified Theft, it is two degrees higher than that for Simple Theft, hence, the correct
penalty is reclusion perpetua.
WHEREFORE, the Decision of the Court of Appeals dated December 18, 2002 is MODIFIED.
In Criminal Case No. Q-96-67829, petitioner ROSARIO V. ASTUDILLO is found guilty beyond reasonable
doubt of Simple Theft, and is sentenced to suffer an indeterminate penalty ranging from Two (2) Years,
Four (4) Months and One (1) Day of prision correccional in its medium and maximum periods as minimum,
to Seven (7) Years, Four (4) Months and One (1) Day of prision mayor in its minimum and medium periods
as maximum, and to pay to the offended party the amount of P12,665.00 as civil liability.
In Criminal Case No. Q-96-67830, petitioner FILIPINA M. ORELLANA is found guilty beyond reasonable
doubt of Simple Theft, and is sentenced to suffer an indeterminate penalty ranging from Two (2) Months,
and One (1) Day of arresto mayor in its medium and maximum periods as minimum, to One (1) Year, Eight
(8) Months and Twenty-One (21) Days of prision correccional in its minimum and medium periods as
maximum, and to pay to the offended party the amount of P4,755.00 as civil liability.
In Criminal Case No. Q-96-67827, petitioner ROSARIO V. ASTUDILLO is acquitted.
In all other respects, the assailed Decision is affirmed except that petitioner FILIPINA M. ORELLANA is
sentenced to suffer the penalty of reclusion perpetua with the accessory penalties under Article 40 of the
Revised Penal Code.
SO ORDERED.