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[G.R. No. 120921. January 29, 1998.]

THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. FELIPE BALLESTEROS, CESAR GALO

and ALVIN BULUSAN, Accused-Appellants.
DECISION
ROMERO, J.:
This is an appeal from the decision of the Regional Trial Court of Bangui, Ilocos Norte, Branch 19,
finding the accused guilty beyond reasonable doubt of murder, qualified by treachery, as charged under
Article 248 of the Revised Penal Code, as amended, to wit:chanrobles virtual lawlibrary
"WHEREFORE, the Court finds the three accused guilty beyond reasonable doubt of murder, qualified
by treachery, as charged, defined and penalized under Article 248 of the Revised Penal Code, as
amended, and applying Article 248 of the Revised Penal Code hereby sentences them to reclusion
perpetua, with all the accessory penalties provided by law, and further sentencing them to pay jointly
and solidarily
1.
The heirs of Jerry Agliam compensatory damages in the amount of FIFTY THOUSAND
PESOS (P50,000.00), moral damages in the amount of TWENTY THOUSAND PESOS (P20,000.00),
and actual damages in the amount of THIRTY-FIVE THOUSAND SEVEN HUNDRED FIFTY-FIVE
PESOS (P35,755.00), with interest;
2.
The heirs of the late Eduardo Tolentino, Sr., compensatory damages in the amount of FIFTY
THOUSAND PESOS (P50,000.00), moral damages in the amount of TWENTY THOUSAND PESOS
(P20,000.00), and actual damages in the total amount of SIXTY-ONE THOUSAND SEVEN HUNDRED
EIGHTY-FIVE PESOS (P61,785.00), with interest;
3.
Carmelo Agliam, actual damages in the amount of TWO THOUSAND AND THREE PESOS
AND FORTY CENTAVOS (P2,003.40), and moral damages in the amount of TEN THOUSAND PESOS
(P10,000.00), with interest;
4.
Vidal Agliam Jr., Robert Cacal and Ronnel Tolentino, moral damages in the amount of FIVE
THOUSAND PESOS (P5,000.00) each, with interest.
5.

The costs.

The accused shall be credited in the service of their sentence the full time during which they had
undergone preventive imprisonment, if they agreed voluntarily in writing to abide by the same
disciplinary rules imposed upon convicted prisoners, otherwise, they shall be credited in the service
thereof with only four-fifths of the time during which they had undergone preventive imprisonment." 1
In the warm summer evening of May 28, 1991, Carmelo Agliam, his half-brother Eduardo Tolentino,
Ronnel Tolentino, Vidal Agliam, his brother Jerry Agliam, Robert Cacal, Raymundo Bangi and Marcial
Barid converged at a carinderia owned by Ronnel Tolentino at Ganayao, Pasuquin, Ilocos Norte. They
proceeded to the barangay hall at Carusipan to attend a dance. The group did not tarry for long at the
dance because they sensed some hostility from Cesar Galo and his companions who were giving them
dagger looks. In order to avoid trouble, especially during the festivity, they decided to head for home
instead of reacting to the perceived provocation of Galo and his companions.
The group had barely left when, within fifty meters from the dance hall, their owner jeep was fired upon
from the rear. Vidal Agliam was able to jump out from the eastern side of the "topdown" jeep and landed
just beside it. He scurried to the side of the road and hid in the ricefield. His younger brother Jerry also
managed to jump out, but was shot in the stomach and died. 2 Carmelo Agliam, Robert Cacal and
Ronnel Tolentino sustained injuries in the right foot, back of the right thigh, and legs and thighs,
respectively. 3 The stunned Eduardo Tolentino was not even able to move from his seat and was hit with
a bullet which punctured his right kidney. 4 He did not survive. The precipitate attack upon the jeep left
two people dead and four others injured.
Based upon the affidavits of Carmelo and Vidal Agliam, warrants for the arrest of Ballesteros, Galo and
Bulusan were issued. Charged with the crime of double murder with multiple frustrated murder, an
information was filed as follows:jgc:chanrobles.com.ph
"That on or about (sic) May 28, 1991, in the Municipality of Pasuquin, Ilocos Norte, Philippines and
within the jurisdiction of the Honorable Court, the abovenamed accused, nighttime purposely sought,
with evident premeditation and treachery, confederating and mutually helping one another, did then and
there, with intent to kill, willfully, unlawfully and feloniously attack and shot Eduardo Tolentino Sr., Jerry
Agliam, Vidal Agliam, Carmelo Agliam, Robert Cacal and Ronnel Tolentino, with the use of firearms
which caused the death of Eduardo Tolentino Sr. and Jerry Agliam and thereby inflicting gunshot
wounds to Vidal Agliam, Carmelo Agliam, Robert Cacal and Ronnel Tolentino having performed all the
acts which would have produced the crime of Murder, but which did not by reason of causes
independent of the will of the defendant, namely the able and timely medical assistance given to said
Vidal Agliam, Carmelo Agliam, Robert Cacal and Ronnel Tolentino which prevented their death."cralaw
virtua1aw library

In his testimony, Galo claimed that he did not even talk to Bulusan or any of his companions at the
basketball court, as alleged by the complainants. Having been found with gunpowder residue in his
hands, Galo attempted to exculpate himself from the results by confessing that he had been a cigarette
smoker for the past ten years and had, in fact, just consumed eight cigarette sticks prior to the test. He
further asserted that paraffin tests are not infallible, and that his hand may have been contaminated by a
nitrogenous compound, the source of which is urine. Lastly, he said that he was not even present at the
crime scene when the firing incident took place; hence, he could not have been one of those who
strafed the jeep. 5
For his part, Ballesteros interposed the defense of alibi, narrating to the court that, on May 28, 1991, at
around 7:00 oclock in the evening, he went to a nearby store to purchase some cigarettes. He returned
home within thirty minutes and cleaned his garlic bulbs before retiring at 9:00 oclock. The next morning,
he busied himself with some chores, which included fertilizing his pepper plants with sulfate. He handled
the fertilizers without gloves. To counter the finding of traces of nitrates on his left hand, Ballesteros
maintained that he uses his left hand in lighting cigarettes, as it was very painful for him to use his right
hand. He likewise informed the trial court that he had no motive to kill the victims. 6
Bulusan echoed the defense of alibi of Galo and Ballesteros, stating that he saw only Galo on the
evening of the dance but did not talk to him. He denied joining the two later that night because after the
dance, he went straight to the house of Michael Viloria, where he spent the night until he went to work at
7:00 oclock in the morning of the following day. 7
The trial court found the three accused guilty beyond reasonable doubt of murder, qualified by treachery,
as charged, defined and penalized under Article 248 of the Revised Penal Code
The accused now come to the High Court on appeal, praying that the decision of the trial court be
reversed and that a new one be entered acquitting them of the charges.
The principal question to be resolved has to do with the merits of the decision of the lower court. Was it
correct in finding accused-appellants guilty beyond reasonable doubt? We answer in the affirmative.
Accused-appellants insist that the trial court erred in finding that Carmelo and Vidal Agliam recognized
them as the assailants. This claim is unmeritorious. In their testimonies, Carmelo and Vidal Agliam both
described the area to be well illumined by the moon. The shooting took place on a small road in the
mountainous terrains of Ilocos Norte, where the air is free from darkening elements and turbidity. It
being a summer evening, there could not have been any fog to becloud the atmosphere and hamper the
vision of the victims, which would have prevented them from clearly seeing their assailants. They
pinpointed the location of the malefactors to be approximately three meters from where they stood. 8

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All pleaded not guilty. Paraffin tests conducted on Galo and Ballesteros produced positive results.
Bulusan was not tested for nitrates.

Considering the luminescence of the moon and the proximity between them, the victims could distinctly
identify their assailants. It must be noted that Carmelo was acquainted with Galo and his brother, a
butcher, since he used to deal with them in his business of buying and selling cattle. 9 Bulusan was a
classmate of Vidal at Cadaratan School. Generally, people in rural communities know each other both
by face and name. 10 Bulusan and Agliam were, not only townmates, but former classmates as well.
The constant interaction between them through the years would necessarily lead to familiarity with each
other such that, at the very least, one would have been able to recognize the other easily.
That accused-appellants had no motive in perpetrating the offense is irrelevant. A distinction is herein
timely made between motive and intent. Motive is the moving power which impels one to action for a
definite result. Intent, on the other hand, is the purpose to use a particular means to effect such result.
11 Motive alone is not proof of crime. 12 In order to tip the scales in its favor, intent and not motive must
be established by the prosecution. Motive is hardly ever an essential element of a crime. A man driven
by extreme moral perversion may be led to commit a crime, without a real motive but just for the sake of
committing it. 13 Along the same line, a man who commits a crime with an apparent motive may
produce different results, for which he is punished. As held in a line of cases, the rule is well-settled that
the prosecution need not prove motive on the part of the accused when the latter has been positively
identified as the author of the crime. 14 Lack or absence of motive for committing the crime does not
preclude conviction thereof where there were reliable witnesses who fully and satisfactorily identified the
accused as the perpetrator of the felony. 15
Accused-appellants attempt to offer wild excuses regarding the source of the gunpowder traces found
on their hands is futile. Experts confirm the possibility that cigarettes, fertilizers and urine may leave
traces of nitrates, but these are minimal and, unlike those found in gunpowder, may be washed off with
tap water.
The hackneyed defense of alibi interposed by accused-appellants must likewise fail. As consistently
enunciated by this Court, the established doctrine is that, 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. 16
This accused-appellants failed to satisfactorily prove. On the night of May 28, 1991, Galo and Bulusan
attended the dance at the barangay hall. After the dance, they went their separate ways but remained
within the barangay. Galo lingered in the premises. Bulusan slept over at the house of Michael Viloria,
which was within walking distance from the dance hall.chanrobles virtual lawlibrary
The defense of alibi must be established by positive, clear and satisfactory evidence, the reason being
that it is easily manufactured and usually so unreliable that it can rarely be given credence. 17 This is
especially true in case of positive identification of the culprit by reliable witnesses, 18 which renders their
alibis worthless. 19 Positive identification prevails over denials and alibis. 20

"(p)roof beyond reasonable doubt does not mean such a degree of proof as, excluding possibility of
error, produces absolute certainty. Moral certainty only is required, or that degree of proof which
produces conviction in an unprejudiced mind."cralaw virtua1aw library
Absolute certainty of guilt is not demanded by law to convict a person of a criminal charge. The doubt to
the benefit of which an accused is entitled in a criminal trial is a reasonable doubt, not a whimsical or
fanciful doubt based on imagined but wholly improbable possibilities and unsupported by evidence. 21
Reasonable doubt is that engendered by an investigation of the whole proof and inability, after such
investigation, to let the mind rest easy upon the certainty of guilt. 22 A precise example would be the
uncorroborated alibi of accused in the case at bar where accused-appellants individually interposed the
wavering defense of alibi. Galo failed to elucidate on his whereabouts after the dance, whereas Bulusan
claimed to have slept in the house of one Michael Viloria. Ballesteros attested that he was not at the
dance hall at all. None of them, however, attempted to corroborate their alibi through the testimony of
witnesses. In fact, they never attempted to present as witnesses those who could have testified to
having seen them elsewhere on the night in question. Had they done so, the presentation of
corroborative testimony would have reinforced their defense of alibi. As held in People v. Ligotan, 23 an
alibi must be supported by credible corroboration from disinterested witnesses, and where such defense
is not corroborated, it is fatal to the accused.
The Court correctly ruled in finding that the offense was qualified by treachery. Under Paragraph 16,
Article 14 of the Revised Penal Code," (t)here is treachery when the offender commits any of the crimes
against the person employing means, methods or forms in the execution thereof which tend directly and
specially to insure its execution without risk to himself arising from the defense which the offended party
might make." The requisites of treachery are twofold: (1) (t)hat at the time of the attack, the victim was
not in a position to defend himself; and (2) that the offender consciously adopted the particular means,
method or form of attack employed by him. 24 As regards the second requisite, the accused must make
some preparation to kill his victim in such a manner as to insure the execution of the crime or to make it
impossible or hard for the person attacked to defend himself or retaliate. 25 There must be evidence
that such form of attack was purposely adopted by the accused. 26 Here, it is obvious that the accusedappellants had sufficient opportunity to reflect on their heinous plan. The facts show that the attack was
well-planned and not merely a result of the impulsiveness of the offenders. Manifestations of their evil
designs were already apparent as early as the time of the dance. They were well-armed and
approached the homebound victims, totally unaware of their presence, from behind. There was no
opportunity for the latter to defend themselves, the attack being so sudden that Eduardo Tolentino was
shot right where he sat.

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Accused-appellants are under the common misconception that proof beyond reasonable doubt requires
total freedom from any quantum of doubt. This is not so. Under Section 2, Rule 133 of the Rules of
Court,

The trial court was also correct in the award of damages to the heirs of the victims. Damages may be
defined as the pecuniary compensation, recompense, or satisfaction for an injury sustained, or as
otherwise expressed, the pecuniary consequences which the law imposes for the breach of some duty
or the violation of some right. 27 Actual or compensatory damages are those awarded in satisfaction of,
or in recompense for, loss or injury sustained, 28 whereas moral damages may be invoked when the
complainant has experienced mental anguish, serious anxiety, physical suffering, moral shock and so
forth, and had furthermore shown that these were the proximate result of the offenders wrongful act or
omission. 29 In granting actual or compensatory damages, the party making a claim for such must
present the best evidence available, viz., receipts, vouchers, and the like, 30 as corroborated by his
testimony. 31 Here, the claim for actual damages by the heirs of the victims is not controverted, the
same having been fully substantiated by receipts accumulated by them and presented to the court. 32
Therefore, the award of actual damages is proper. However, the order granting compensatory damages
to the heirs of Jerry Agliam and Eduardo Tolentino Sr. must be amended. Consistent with the policy of
this Court, the amount of fifty thousand pesos (P50,000.00) is given to the heirs of the victims by way of
indemnity, and not as compensatory damages. 33 As regards moral damages, the amount of
psychological pain, damage and injury caused to the heirs of the victims, although inestimable, 34 may
be determined by the trial court in its discretion. Hence, we see no reason to disturb its findings as to
this matter.
WHEREFORE, premises considered, the decision appealed from is hereby AFFIRMED WITH
MODIFICATION. No pronouncement as to costs.
SO ORDERED.

G.R. No. 124706

February 22, 2000

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
CARLITO EREO Y AYSON, accused-appellant.
GONZAGA-REYES, J.:
Accused Carlito A. Ereo appeals from the decision1 dated October
27, 1995 of the Regional Trial Court, National capital Region, Branch
72, Malabon, Metro Manila in Criminal Case No. 15944-MN finding
him guilty of the crime of murder and sentencing him to suffer the
penalty of reclusion perpetua for the death of ROSANNA HONRUBIA

The information2 filed by Assistant Provincial Prosecutor Leandro C.

Catalo against accused-appellant reads:
That on or about the 21st day of June 1995, in Navotas, Metro
Manila, and within the jurisdiction of this Honorable Court, the
above-named accused, armed with a bladed weapon, with intent to
kill, treachery and evident premeditation, did then and there
wilfully, unlawfully and feloniously attack, assault and stab with the
said weapon, one ROSANNA HONRUBIA, hitting the victim on
different parts of her body, thereby inflicting upon the victim stab
wounds which caused his (sic) immediate death.
CONTRARY TO LAW.
When arraigned, accused-appellant entered a plea of not guilty. Pretrial was waived by the accused;3 and trial on the merits ensued.
The trial court summed up the evidence as follows:
The prosecution presented evidence substantially showing that on
June 21, 1995, at 9:30 o'clock in the evening, Rosanna Honrubia
was at N. Domingo Street in Tangos, Navotas, Metro Manila, sort of
supervising and helping in the work being done on the busted
electric line from which residents of that place were drawing
electricity. Wilfredo Quibado and Arminggol Teofe were the once
(sic) actually working thereon with Quibado the one in-charge of the
work. Rosanna was from time to time giving a helping hand but
most of the time she was the one holding the flashlight being used
in the work that was being undertaken.
While Rosanna was holding the flashlight, accused Carlito Ereo
approached and took from her the flashlight and brought the same
with him to the interior of the place. Rosanna followed Ereo and
when she returned she already had with her the flashlight which
Ereo took with him. Ereo, however, followed Rosanna to the place
where the work on the busted electric line was going on and
confronted her about her taking back the flashlight. Rosanna
explained that it was being used in the work that must be finished

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and ordering him to pay the heirs of the victim the total amount of
P124,000.00.

and when finished would be to the benefit of all the residents of the
place. A heated argument followed which made Rosanna to move
away to a place known thereat as "Bato" which place consists of a
low hollow block fence.
Teofe followed her to the "Bato" and with another person sat beside
Rosanna. Ereo also followed Rosanna and the argument between
the two of them continued. Ereo himself sat at the Bato with Teofe
and one other person separating him from Rosanna. Ereo all of a
sudden stood up and drew a bladed weapon and with it stabbed
Rosanna at the back. This made Rosanna to run towards a tricycle
which happened to be in said place but Ereo followed her again
and gave chase to Rosanna resulting in a situation whereby the two
of them would be running around the tricycle.
Rodolfo Dematera also happened to be in that place. He tried to
pacify Ereo but was instead hit by the latter on his left arm. Teofe
himself was shouting to Ereo to stop what he was doing but the
latter ignored him.
Rosanna was able to run away from the tricycle but in the process
stumbled and Ereo was able to catch up with her. Ereo then held
Rosanna frontally by the hair and thereafter stabbed her at the
chest twice. Rosanna slumped to the ground clutching her chest. At
this point, Teofe approached Rosanna while Dematera called for
Rosanna's parents.
Ereo again approached Rosanna but without actually reaching her,
he ran away from the place.
Teofe tried to talk to Rosanna but Rosanna could not answer him
anymore as blood was coming out of her mouth. Thereafter, Teofe
boarded Rosanna on a tricycle with which her relatives brought her
somewhere else.
In Court, Teofe identified Ereo as the assailant of Rosanna. He also
identified the dagger which was recovered in another place as the
one used by Ereo in stabbing Rosanna. Teofe maintained that he
had seen said dagger before in the possession of Ereo.

SPO1 Benjamin Bacunata of the Navotas Police effected the arrest

of Ereo shortly after he fled from the scene of Rosanna's stabbing.
An alert/alarm was issued for Ereo who was spotted at the corner
of Estrella and Naval Streets in Navotas and identified by one
Hector Domingo. When frisked, Ereo was found to be in possession
of a small improvised bladed weapon (Exh. G). Bacunata presented
the dagger (Exh. H) that was recovered in another place and which
Teofe identified as the fatal weapon.
Accused Carlito Ereo denied killing Rosanna whom he
acknowledged he learned was stabbed to death by another person.
Ereo also denied the testimony of Teofe claiming that while he
really returned the flashlight to Rosanna he never followed her back
to the place where the work on the busted electric line was being
done. Hence, there could have been no confrontation between the
two of them.
Ereo also maintained that when Rosanna must have been stabbed
he was already on board a passenger jeep bound for Monumento.
He acknowledged that there was a check point in Navotas whereat
the jeep he was riding on was stopped followed by somebody
pointing to him. Policeman Bacunata then boarded Ereo on a
mobile car and was brought to the police headquarters and
detained.
Positive and clear are the appropriate words that can describe the
testimony given by Teofe. He narrated in terms simple and
distinctive the incident from the time work was started on the
busted electric line to the taking of the flashlight from Rosanna by
Ereo, to the return of the two to the place and the argument
between them that followed. In the same vein, he described the
stabbing of Rosanna by Ereo first at the back and then twice at the

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Rosanna died by reason of the stab wounds she sustained at the

back and at the chest (Exhs. C, C-1, D and F). Her mother Lita spent
P24,000.00 in connection with her death and burial. She is also
claiming P187,200.00 by way of lost income which Rosanna could
have earned had she not been untimely killed. There was also a
claim for moral damages brought about by the pain and sorrow
caused by Rosanna's untimely demise.

chest while Ereo was holding Rosanna by her hair. And Teofe was
not shown to have been motivated in giving his testimony by any
evil purpose or consideration.
On the other hand, we have Ereo's version consisting mainly of a
denial and a claim that he was already, somewhere else when
Rosanna must have been stabbed to death. Ereno's version also
included admissions concerning his having taken the flashlight from
Rosanna and his having been arrested in a checkpoint after he was
pointed to by Domingo which checkpoint according to the arresting
officer was brought about by an alert or alarm for the reported killer
of Rosanna.
xxx

xxx

xxx

In fine, the Court is convinced that Ereo is guilty as charged in this

case. The offense committed by him was murder, for no other word
could describe a killing initiated by a treacherous stab at the back
followed by frontal stabbings while the victim was being frontally
held by the assailant by the hair. More so, when the victim is a
woman.4
The dispositive portion of the trial court's decision dated October
27, 1995, reads:
WHEREFORE, premises considered, judgment is hereby rendered
finding accused Carlito Ereo y Ayson guilty beyond reasonable
doubt of the crime of murder and said accused is hereby sentenced
to the prison term of reclusion perpetua.
Accused Ereo is also ordered to pay the following sums to the heirs
of Rosanna Honrubia who died single:
1. P24,000.00 for the expenses incurred in connection with the
death and burial of the victim;
2. P50,000.00 for the loss of the victim's life;
3. P50,000.00 by way of moral damages for the pain and sorrow
suffered by the victim's family in connection with her untimely
death.

SO ORDERED.
Accused-appellant appeals his conviction citing as lone error that:
THE TRIAL COURT A QUO ERRED IN CONVICTING THE ACCUSED
CONSIDERING THAT HIS CONSTITUTIONAL RIGHTS WERE VIOLATED
WHEN HE WAS ARRESTED WITHOUT A WARRANT UNDER
CIRCUMSTANCES WHICH DO NOT WARRANT THE APPLICATION OF
RULE 113, SECTION 5 OF THE 1985 RULES OF CRIMINAL
PROCEDURE ALLOWING WARRANT-LESS ARRESTS UNDER
EXCEPTIONAL CIRCUMSTANCES.
Accused-appellant avers that late in the night of June 21, 1995
while riding in a tricycle, SPO1 Benjamin Bacunata, along with
elements of the Navotas Police Station, arrested and detained him
at the Navotas Police Station; that he was arrested without a
warrant and was apprehended merely on the basis of a report of a
certain Hector Domingo who did not have any personal knowledge
of the identity of the accused and also of the circumstances
described in the information charging him of the crime of murder;
that both SPO1 Benjamin Bacunata and Hector Domingo were not
present at the scene of the alleged crime and that Hector Domingo
was not even presented as a witness by the prosecution; that at the
time of the arrest, the accused was not doing any act which would
give the arresting officers any reasonable suspicion to cause his
arrest and/or to detain him; and that since his arrest is illegal, the
bladed weapon which was presented by the prosecution as the
murder weapon, must have been seized as a result of an illegal
arrest and illegal search and therefore can not be presented as
evidence against the accused. In short, the court a quo allegedly
never acquired jurisdiction over the person of the accusedappellant.
On the other hand, the Office of the Solicitor General in its
appellee's brief, contends that the warrantless arrest of accused-

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The claim for lost income, not having been substantiated by any
document that will show that Rosanna at the time of her death was
earning P600.00 a day, six day (sic) a weak (sic) cannot be
sustained. Costs against accused Ereo.

appellant by SPO1 Benjamin Bacunata at about 9:45 p.m. of June

21, 1995 shortly after the stabbing incident of Rosanna Honrubia
was justified under Section 5 (b), Rule 113 of the 1985 Rules of
Criminal Procedure. Based on the report made to the Navotas Police
Station by eyewitness Hector Domingo, which was shown to
arresting officer SPO1 Benjamin Bacunata, the latter, in effect, was
vested with personal knowledge of the facts surrounding the
stabbing of Rosanna Honrubia a few hours before the arrest on June
21, 1995 of accused-appellant. Hence, SPO I Benjamin Bacunata
and the other arresting officers with him, were validly compelled, in
the performance of their official duties, to arrest accused-appellant
without a warrant. Besides, even if the warrantless arrest was
unlawful and the evidence obtained (i.e., an improvised bladed
weapon) inadmissible, the conviction of accused-appellant would
still be in accordance with law and the evidence because
eyewitness Arminggol Teofe positively identified him as the
assailant of Rosanna Honrubia, and also identified the bladed
weapon recovered in another place as the one used by accusedappellant in stabbing Rosanna.
We find no merit in the appeal.
Accused-appellant assails his conviction as improper and illegal
asserting that the court a quo never acquired jurisdiction over his
person because he was arrested without a warrant and that his
warrantless arrest was not done under any of the circumstances
enumerated in Section 5, Rule 113 of the 1985 Rules of Criminal
Procedure.
Even granting that indeed there had been an irregularity attendant
to the arrest of accused-appellant, it should, not having been raised
at the opportune time, be deemed cured by his voluntarily
submitting himself to the jurisdiction of the trial court. Not only did
accused-appellant enter his plea during arraignment but also
waived pre-trial and actively participated at the trial which
constituted a waiver of any supposed irregularity in his arrest.5
The Court has consistently ruled that any objection involving a
warrant of arrest or the procedure in the acquisition by the court of
jurisdiction over the person of the accused must be made before he
enters his plea, otherwise, the objection is deemed waived.6 We

However, after a review of the entire records, we find that the trial
court erred in finding accused Carlito Ereo y Ayson guilty of
murder as charged. The crime committed is homicide.
The information filed against accused Carlito A. Ereo charged him
with having wilfully, unlawfully and feloniously attacked, assaulted
and stabbed with a bladed weapon one ROSANNA HONRUBIA
thereby inflicting upon the victim stab wounds which caused her
immediate death on June 21, 1995 and that the fatal stabbing of
the victim was committed with the attendant circumstances of
treachery and evident premeditation.9
In convicting the accused, the trial court relied solely on the
testimony of witness Arminggol Teofe who narrated the successive
incidents that transpired in the evening of June 21, 1995 which led
to the fatal stabbing of Rosanna Honrubia. He testified that he was
present and witnessed the entire incident from the time work was
started on the busted electric line in N. Domingo Street in Tangos,
Navotas; he saw the accused-appellant Ereo take the flashlight
from Rosanna, brought the same to the interior of the place
followed by Rosanna who retook the flashlight; the return of the two
to the place of work and the argument between them that ensued.
He described the stabbing of Rosanna by Ereo, first at the back
and then twice at the chest while Ereo was holding Rosanna by her
hair.
The qualifying circumstance of treachery was not established by
convincing evidence.10 There was no showing that the means,
method or manner of attack was deliberately and consciously
adopted by the accused and actually carried out so swiftly and
unexpectedly so as to ensure his safety while rendering his victim
helpless and unable to defend herself.11 There is no treachery

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have also ruled that an accused may be estopped from assailing

the illegality of his arrest if he fails to move for the quashing of the
information against him before his arraignment.7 And since the
legality of an arrest affects only the jurisdiction of the court over the
person of the accused, any defect in the arrest of the accused may
be deemed cured when he voluntarily submitted to the jurisdiction
of the trial court8 as was done by the accused-appellant in the
instant case.

when the killing results from a verbal altercation between the victim
and the assailant such that the victim must have been forewarned
of the impending danger as was found in the case at bar.12 It bears
stress that treachery is not presumed. It has to be proved as
convincingly as the killing itself.13 In fact, the well-settled rule is
that any circumstance which would qualify a killing to murder must
be proved as indubitably as the killing itself.14 Thus, "evident
premeditation" cannot also be appreciated to qualify the killing of
Rosanna by the accused to murder. No evidence had been adduced
indicating that accused-appellant earlier planned and resolved to
kill victim Rosanna Honrubia and that he clung to his plan and
determination for a considerable length of time before he executed
the same.15 For evident premeditation to be appreciated as a
qualifying circumstance, direct evidence must be adduced by the
prosecution of the following: (a) the planning and preparation made
and the time the offender determined to kill his victim; (b) an act of
the offender manifestly indicating that he clung to his
determination to kill his victim; and (c) sufficient lapse of time
between the determination and the execution of the killing to allow
his conscience to overcome the resolution of his will had he desired
to hearken to its warnings.16
In view of the absence of evidence establishing the alleged
qualifying circumstances of treachery and evident premeditation,
the crime of fatally stabbing Rosanna Honrubia committed by the
accused is not murder but only homicide.17
Accordingly, the appropriate penalty to be imposed is not reclusion
perpetua but reclusion temporal.18 Since there are neither
aggravating nor mitigating circumstances found by the trial court,
the penalty in this case shall be fixed in its medium period of
reclusion temporal19 which ranges from a minimum of fourteen
(14) years, eight (8) months and one (1) day to a maximum of
seventeen (17) years and four (4) months. Further, applying the
Indeterminate Sentence Law,20 the imposable penalty shall be
within the range of the penalty next lower in degree, i.e. prision
mayor as minimum to reclusion temporal in its medium period as
the maximum.21
On the civil aspect of the case, the court a quo overlooked certain
evidentiary facts in its award of damages. For instance, in seeking

In line with current jurisprudence, we sustain the award of

P50,000.00 as civil indemnity (ex delicto) which requires no proof
other than the fact of death of the victim and assailant's
responsibility therefor.24
We also sustain the award of P50,000.00 by way of moral damages
for the pain and sorrow suffered by the victim's family in connection
with Rosanna's untimely death. We find the award to be adequate,
reasonable and with sufficient basis taking into consideration the
pain and mental anguish suffered by the victim's family.25
The court a quo correctly denied for lack of factual basis the claim
of the victim's mother for an award for loss of income or earning
capacity of the deceased estimated by her at P600.00 per day,
(Sunday excluded) or P15,600.00 a month or P187,200.00 a year.26
This hand-written estimate of the deceased's daily income as a selfemployed fish vendor during the past eight (8) years prior to her
death on June 21, 1995, submitted by the victim's mother in the
course of her testimony in court is not supported by competent
evidence like income tax returns or receipts. It bears stress that
compensation for lost income is in the nature of damages27 and as
such requires due proof of the damages suffered;28 there must be
unbiased proof of the deceased's average income.29 In the instant
case, the victim's mother, Lita Honrubia, gave only a self-serving
hence unreliable statement of her deceased daughter's income.
Moreover, the award for lost income refers to the net income of the
deceased, that is, her total income less her average expenses.30

8
Page

recovery for actual damages, it is necessary that the claimant

produce competent proof or the best evidence obtainable such as
receipts to justify an award therefor. Actual or compensatory
damages cannot be presumed but must be proved and proved with
reasonable degree of certainty.22 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.23 The list of expenses incurred for the
wake, funeral and burial of the victim amounting to P24,700.00
(Exh. "F-2") submitted by the victim's mother Lita Honrubia is selfserving and not substantiated. We cannot therefore affirm the trial
court's award of P24,000.00 for actual expenses.

No proof of the victim's average expenses was presented. Hence,

there can be no reliable estimate of the deceased's lost income.
WHEREFORE, the decision appealed from is hereby MODIFIED.
Appellant CARLITO EREO Y AYSON is found GUILTY of HOMICIDE
and sentenced to suffer a prison term of eight (8) years and one (1)
day of prision mayor as minimum to fourteen (14) years, eight (8)
months and one (1) day of reclusion temporal as maximum.
Appellant is also ORDERED to pay the heirs of Rosanna Honrubia
P50,000.00 as civil indemnity plus P50,000.00 as moral damages.
The trial court's award of P24,000.00 for alleged expenses incurred
in connection with the death and burial of the victim is DELETED for
lack of basis. No pronouncement as to costs.1wphi1.nt
SO ORDERED.

G.R. No. 123115. August 25, 1998

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. NIXON MALAPO,
Accused-Appellant.
DECISION
MENDOZA, J.:
This is an appeal from the decision rendered on June 23, 1995 by
the Regional Trial Court of Iriga City, Branch 36, convicting accusedappellant Nixon Malapo of rape and sentencing him to suffer the
penalty of reclusion perpetua and to pay the victim Amalia Trinidad
the sum of P50,000.00 in moral damages.
The information1 against accused-appellant alleged:
The undersigned Assistant City Prosecutor of Iriga City, upon sworn
complaint originally filed by the offended party hereto attached,
hereby accuses one NIXON MALAPO of Salvacion, Iriga City of the
crime of RAPE, committed as follows:

CONTRARY TO LAW.
Three witnesses testified against him: complainant Amalia Trinidad;
Amalias guardian, Nenita No; and a guidance counselor and first
cousin of Nenita No, Bernardita Marquinez.
Nenita No identified accused-appellant as her long-time neighbor.
She testified that Amalia Trinidad had been under her care and
custody since 1978 when Amalia was just seven years old. She said
Amalia was able to finish the sixth grade of her primary education.2
It appears that Amalia is a retardate who was a former ward of the
Elsie Gaches Village institution. Mrs. Nenita No and her husband
were given custody of Amalia on November 19, 1978 on the basis of
the following psychological evaluation:
Amalia is seemingly an example of a pseudoretardate. She might
have been deprived of intellectual stimulations which explains her
lag in cognitive development. She is still categorized within the
normal classification of children. She must continue attending the
centers special school to catch-up for whatever educational
deficiency she may have.3crlwvirtualibrry
Mrs. No told the court that, sometime during the first week of
September 1991, Amalia was left alone in their house at Salvacion,
Iriga City, as she and her husband taught in school, while their four
natural children attended classes.4crlwvirtualibrry
At around 10:30 in the morning of that day, when Mrs. No came
home from her class, she found accused-appellant Malapo in the
yard of her house. Accused-appellant was in haste. She stopped
him and asked why he was in a hurry, to which accused-appellant

9
Page

That sometime on the month of September, 1991 at Salvacion, Iriga

City, Philippines, and within the jurisdiction of this Honorable Court,
the said accused, entered the house of one Nenita I. No, aunt of
Complainant AMALIA TRINIDAD who was then and there alone, and
by means of force and intimidation, did, then and there willfully,
unlawfully and feloniously succeeded in having carnal knowledge of
said Amalia Trinidad against her will and consent and as a result she
has become pregnant and delivered a baby at the Iriga City
Puericulture Center.

replied he had gathered firewood. This puzzled Mrs. No as they had

no firewood at the back of their house. Mrs. No said she found
Amalia inside their house crying. Mrs. No tried to find out why
Amalia was crying, but she would not say anything. On May 18,
1992, Amalia finally told Mrs. Nos cousin, Bernardita Marquinez,
that she had been raped by accused-appellant.5crlwvirtualibrry
Taking the witness stand, Amalia Trinidad recounted how at around
9:30 in the morning in September 1991, while she was alone at
home, accused-appellant Nixon Malapo entered their house. Amalia
was then cooking. Upon seeing accused-appellant, she tried to run
away, but Malapo caught her hand and brought her to the dining
room. The accused-appellant then caused her to fall on the floor,
covered her mouth, and forcibly removed her short pants and
undergarment. Next, he removed his pants, lay on top of her, and
forced his sexual organ into her private part, causing lacerations
and bleeding in her vagina. Amalia said she tried to punch the
accused-appellant and to remove his hand from her mouth, but he
was too strong for her. After he had succeeded in having sexual
intercourse with her, accused-appellant left after warning her that
he would kill her if she reported the incident to Mrs. No or to anyone
else.6crlwvirtualibrry
For this reason, Amalia said, when Mrs. No asked why she was
crying, she did not tell her what had happened to her. She
confirmed that it was only when she was about to give birth to her
baby on May 18, 1992 that she told Bernardita Marquinez that she
had been raped by accused-appellant. Amalia pointed to accusedappellant in court as the person who had raped her. She testified
that, prior to the date of the alleged crime, she did not harbor any
ill will or grudge against him,7 but, as a result of her abuse, she
said she suffered from wounded feelings which made her cry very
often.8crlwvirtualibrry
The last witness for the prosecution was Bernardita Marquinez, a
resident of Iriga City and guidance counselor of the University of
Saint Anthony. She was presented to corroborate the testimonies of
Mrs. No and the victim regarding the events on May 18, 1992 and
afterward.9crlwvirtualibrry

Accused-appellant alleged that Amalia three times failed to identify

him: When Amalia was brought before the barangay captains office
to confront accused-appellant, Amalia failed to identify him despite
Mrs. Nos effort to make her point to him. Amalia again failed to
identify him as her alleged assailant when they were taken to the
police headquarters and, still later, before Prosecutor Jose Tagum of
the Iriga City Prosecutors office.11crlwvirtualibrry
Accused-appellant submitted as documentary evidence a medical
certificate12 showing that the alleged victim gave birth to a fullterm male baby on May 18, 1992. He argues that if Amalia had
been raped in September of 1991, she could not have been
delivered of her baby on May 18, 1992.
On June 23, 1995, the trial court rendered its decision finding
accused-appellant guilty. The dispositive portion of its decision
reads:

10
Page

Accused-appellant Nixon Malapo testified on his behalf, basically

claiming alibi as his defense. He presented as witnesses Felipe
Edroso and Santos Ramos to corroborate his claim that he and
Ramos worked together as duck watchers hired by Edroso in San
Jose, Buhi, Camarines Sur, about fifteen kilometers away from
Salvacion, Iriga City, from July 1991 until January
1992.10crlwvirtualibrry

alleged rape perpetrated sometime in September 1991, because

from September 15, 1991 (assuming that the rape took place on
September 15, 1991, there being no evidence as to when in
September 1991 the rape took place) to May 18, 1992 when the
baby was born, is a period of only eight (8) months and three (3)
days, contrary to the Certificate (Exh. 1 and 1-A) that the baby was
full term when delivered.
Consequently, that the appellant had raped the complaining
witness in September 1991 and, as a result, she became pregnant
and gave birth to her baby on May 18, 1992 is simply improbable;
hence, obviously a lie.
It could therefore be that the baby of the complaining witness was
fathered by another man; hence, there is serious doubt that the
appellant had raped same complaining witness in September 1991
causing her to become pregnant and to deliver a baby on May 18,
1992.
It cannot be argued that the victim must have been already
pregnant when she was allegedly raped because there is no
evidence to this effect. The information and the prosecution
evidence are to the effect that the baby was the fruit of the alleged
rape.13crlwvirtualibrry
The contention has no merit.

WHEREFORE, premises considered, the Court finds the accused,

NIXON MALAPO, guilty beyond reasonable doubt of the crime of
rape defined and penalized under Article 335 of the Revised Penal
Code before its amendment by Rep. Act No. 7659, as charged in the
information, and hereby sentences the said accused to suffer the
penalty of reclusion perpetua; that said accused is further ordered
to indemnify the private offended party, AMALIA TRINIDAD, of the
sum of P50,000.00 as moral damages, and to pay the costs.
SO ORDERED.

A textbook on pediatrics states that Infants delivered before the

thirty-seventh week of gestation with a birth weight of less than
2,500 grams (American) or 2,275 grams (Filipino) are considered
premature.14 An infant can therefore be considered a full-term
baby if it weighs more than 2,275 grams even if it is born before the
thirty-seventh week which is less than 9.3 months. Since according
to the medical certificate (Exh. 1) Amalias baby weighed 2.4
kilograms or 2,400 grams, it was a full-term baby even if it was
born before the normal gestation period.

Hence, this appeal. Accused-appellants sole contention is this:

Article 166 of the Family Code provides:

As, according to Exhibit 1-A, the baby was a full term baby, it is
unlikely, nay unbelievable, that same baby was the fruit of the

Legitimacy of a child may be impugned only on the following

grounds:

(a) the physical incapacity of the husband to have sexual

intercourse with his wife;
(b) the fact that the husband and wife were living separately in
such a way that sexual intercourse was not possible; or
(c) serious illness of the husband, which absolutely prevented
sexual intercourse;
(2) That it is proved that for biological or other scientific reasons,
the child could not have been that of the husband, except in the
instance provided in the second paragraph of Article 164; . . .
In the case at bar, it can be inferred that conception occurred at or
about the time that accused-appellant is alleged to have committed
the crime, i.e., within 120 days from the commission of the offense
in September 1991.15 Pursuant to Art. 166 of the Family Code,
accused-appellant can overcome the presumption that Amalias
child was begotten as a result of her having been raped in
September 1991 only if he can show either that it was physically
impossible for him to have sexual intercourse because of impotence
or serious illness which absolutely prevents him from having sexual
intercourse or that Amalia had sexual intercourse with another man.
However, accused-appellant has not shown either of these.
The testimony of Amalia, as corroborated by Nenita No and
Bernardita Marquinez, leaves no doubt in our mind that accusedappellant is the father of the child. Therefore, in accordance with
Art. 345 of the Revised Penal Code, accused-appellant should be
ordered to pay support.
In any event, the impregnation of a woman is not an element of
rape. Proof that the child was fathered by another man does not
show that accused-appellant is not guilty, considering the positive
testimony of Amalia that accused-appellant had abused her. As held
in People v. Alib:16crlwvirtualibrry

11
Page

(1) That it was physically impossible for the husband to have sexual
intercourse with his wife within the first 120 days of the 300 days
which immediately preceded the birth of the child because of:

... Under Article 335 of the Revised Penal Code, rape is committed
by having carnal knowledge of 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, even though
neither of the circumstances mentioned in the two next preceding
paragraphs shall be present.
It is therefore quite clear that the pregnancy of the victim is not
required. For the conviction of an accused, it is sufficient that the
prosecution establish beyond reasonable doubt that he had carnal
knowledge of the offended party and that he had committed such
act under any of the circumstances enumerated above. Carnal
knowledge is defined as the act of a man having sexual bodily
connections with a woman;
Indeed, the findings of the trial court deserve the great respect
usually accorded the findings of triers of facts who had the
opportunity of observing the demeanor of the witnesses while
testifying. Amalias inability to recall the exact date she was raped
cannot affect her credibility, especially considering her condition of
feeblemindedness. In People v. Quinones,17 which involved the
rape of a 25-year old retardate who also could not recount when
she was raped by the accused in that case, this Court held:
[T]he date of the occurrence of the rape is not an essential element
in the commission of the rape. That is why the Amended
Information reads: [t]hat on or about the 5th of June 1989 . . .
Suffice it to say that it was shown that rape under Art. 335, par. (2),
of the Revised Penal Code was committed, and that the evidence
presented established beyond a ray of doubt that accused-appellant
was responsible therefor.18crlwvirtualibrry
It is noteworthy that in this appeal accused-appellant does not
reiterate his original defense that in September 1991 he was not in

Q But the fact is, you and Nixon Malapo did never leave the ducks
you were tending to from the time that they were brought at Salay
in July up to the time you left in January, 1992?

12
Page

Salvacion, Iriga because he was then tending a duck farm in San

Jose, Buhi, Camarines, Sur, fifteen kilometers away. For alibi is
inherently a weak defense which cannot prevail over the positive
identification of the accused.19 Furthermore, his claim that he was
elsewhere at the time of the crime is belied by his own witness,
Santos Ramos, who admitted that he and accused-appellant took
turns going home to their families in Salvacion. By testifying that he
did not go home in September 1991, Santos, by implication,
admitted that it was accused-appellants turn to go home in that
month. Santos Ramos testified:

A No, sir.[20crlwvirtualibrry
Answering questions from the trial judge, he said:
Q During that period between July, 1991 to January, 1992, do you
remember if Nixon Malapo also visited?
A Yes, Your Honor.
Q Do you remember how many times did he visit his family during
that period?
A Yes, Your Honor, the same number of times that I went home.
Q He went home on those days when you were on duty?

A Sometimes, one of us also leave.

A Yes, Your Honor.21crlwvirtualibrry
Q And when one of you leave, where do you go?
A We go home to our house, sir.
Q And will you tell the Court how many times you went home
between July, 1991 to January, 1992?
A About five (5) times, sir?

In addition to the foregoing, Felipe Edroso, the other defense

witness, testified:
PROS. CANUTO:
Q In September 1991 he [accused-appellant] also used to leave San
Jose, Salay, and visited his family in Salvacion, stayed there for
about a day and then returned to his work in San Jose, Salay?

Q When were these five (5) times?

A Yes, Sir.
A I went home in October and December.
Q You said five (5) times - you said you went home five (5) times, in
October and December only?

Q And in October 1991, he also would leave San Jose Salay, to visit
his family in Salvacion and stayed with his family for about a day
and then returned [to] his work in San Jose, Salay?

A Yes, sir.

A Yes, Sir.

Q You did not go home in August?

Q Now, in 1991 do you know whether Nixon Malapo was married or

not?

A No, sir.
A Yes, Sir.
Q You did not also go home in September?
Q Did they have children at that time?

Q And you will agree with me that this could be the reason of [sic]
the fact that he already had his wife, had his family that he did not
continuously stay in Buhi, for three (3) months, but that he would
leave San Jose, Salay and visited his family once in a while in
Salvacion during that time/period?

13
Page

A Yes, Sir.

Corollarily, the fact that complainant has suffered the trauma of

mental, physical and psychological sufferings which constitute the
bases for moral damages are too obvious to still require the recital
thereof at the trial by the victim, since the Court itself even
assumes and acknowledges such agony on her part as a gauge of
her credibility. What exists by necessary implication as being
ineludibly present in the case need not go through the superfluity of
still being proved through a testimonial charade.

A Very seldom, Sir.22crlwvirtualibrry

In conclusion, we hold that the trial court correctly found accusedappellant guilty of rape. However, it failed to order accusedappellant to pay indemnity. After reciting that, in all criminal cases,
unless the offended party reserves the right to institute a separate
civil action, she has a right to recover civil indemnity, the trial court
awarded the complainant in this case moral damages only. As we
have explained in a number of cases,23 the indemnity provided in
criminal law as civil liability is the equivalent of actual or
compensatory damages in civil law. It is, therefore, separate and
distinct from any award of moral damages. As currently fixed, the
indemnity for rape is P50,000.00. However, as we have recently
held in People v. Victor,24 if rape is committed or is qualified by any
of the circumstances which under the law (R.A. No. 4111 and R.A.
No. 7659) would justify the imposition of the death penalty, the
indemnity shall be in an amount not less than P75,000.00.
Since in this case the rape is not qualified, the indemnity should be
P50,000.00. This is in addition to the amount of P50,000.00
awarded by the trial court as moral damages. It should be added
that the latter amount is automatically granted in rape cases
without need of any proof. It is assumed that the offended party has
suffered moral injuries entitling her to the award of such damages.
As we explained in the recent case of People v.
Prades:25crlwvirtualibrry
The conventional requirement of allegata et probata in civil
procedure and for essentially civil cases should be dispensed with in
criminal prosecutions for rape with the civil aspect included therein,
since no appropriate pleadings are filed wherein such allegations
can be made.

Mention was earlier made that since Amalias baby was begotten as
a result of the rape, accused-appellant is liable for support. Under
Art. 345 of the Revised Penal Code, in addition to the
indemnification of the offended party, persons guilty of rape must
in every case support the offspring. Although said article also
provides for the acknowledgment of the child unless the offender is
married, this Court has already ruled that:
Article 176 of the Family Code confers parental authority over
illegitimate children on the mother, and likewise provides for their
entitlement to support in conformity with the Family Code. As such,
there is no further need for the prohibition against acknowledgment
of the offspring by an offender who is married which would vest
parental authority in him. Therefore, under Article 345 of the
Revised Penal Code, the offender in a rape case who is married can
only be sentenced to indemnify the victim and support the
offspring, if there be any. In the instant case then, the accused
should also be ordered to support his illegitimate offspring, Tracy
Jhuen Nieto, with Marie Elena Nieto, but in light of Article 201 of the
Family Code, the amount and terms thereof are to be determined
by the trial court only after due notice and
hearing.26crlwvirtualibrry
Therefore, given the fact that Amalias child is conclusively the
illegitimate child of the accused-appellant,27 the acknowledgment
in this instance should be understood to refer only to the affiliation
of the child.28crlwvirtualibrry
WHEREFORE, the decision of the Regional Trial Court is AFFIRMED,
with the MODIFICATION that the accused-appellant is ordered to pay
complainant Amalia Trinidad the sum of P50,000.00 as indemnity, in

SO ORDERED.

G.R. No. 129029

April 3, 2000

RAFAEL REYES TRUCKING CORPORATION, petitioner,

vs.
PEOPLE OF THE PHILIPPINES and ROSARIO P. DY (for herself and on
behalf of the minors Maria Luisa, Francis Edward, Francis Mark and
Francis Rafael, all surnamed Dy), respondents.
PARDO, J.:

14
Page

addition to the amount of P50,000.00 granted by the trial court as

moral damages, as well as to acknowledge the filiation of
complainants offspring and to give support, the amount of which
shall be determined by the trial court. Accordingly, the records of
this case are hereby REMANDED to the Regional Trial Court for the
fixing of the amount of support.

That on or about the 20th day of June, 1989, in the Municipality of

Cauayan, Province of Isabela, Philippines, and within the jurisdiction
of this Honorable Court, the said accused being the driver and
person-in-charge of a Trailer Truck Tractor bearing Plate No. N2A867 registered in the name of Rafael Reyes Trucking Corporation,
with a load of 2,000 cases of empty bottles of beer grande, willfully,
unlawfully and feloniously drove and operated the same while along
the National Highway of Barangay Tagaran, in said Municipality, in a
negligent, careless and imprudent manner, without due regard to
traffic laws, rules and ordinances and without taking the necessary
precautions to prevent injuries to persons and damage to property,
causing by such negligence, carelessness and imprudence the said
trailer truck to hit and bump a Nissan Pick-up bearing Plate No.
BBG-957 driven by Feliciano Balcita and Francisco Dy, Jr., @
Pacquing, due to irreversible shock, internal and external
hemorrhage and multiple injuries, open wounds, abrasions, and
further causing damages to the heirs of Feliciano Balcita in the
amount of P100,000.00 and to the death of Francisco Dy, Jr.; @
Pacquing and damages to his Nissan Pick-Up bearing Plate No. BBG957 in the total amount of P2,000,000.00.

The case is an appeal via certiorari from the amended decision 1 of

the Court of Appeals2 affirming the decision and supplemental
decision of the trial court,3 as follows:

CONTRARY TO LAW.

IN VIEW OF THE FOREGOING, judgment is hereby rendered

dismissing the appeals interposed by both accused and Reyes
Trucking Corporation and affirming the Decision and Supplemental
Decision dated June 6, 1992 and October 26, 1992 respectively.

(Sgd.) FAUSTO C. CABANTAC

Third Assistant Provincial Prosecutor

SO ORDERED.4
The facts are as follows:
On October 10, 1989, Provincial Prosecutor Patricio T. Durian of
Isabela filed with the Regional Trial Court, Isabela, Branch 19,
Cauayan an amended information charging Romeo Dunca y de
Tumol with reckless imprudence resulting in double homicide and
damage to property, reading as follows:

Cauayan, Isabela, October 10, 1989.

Upon arraignment on October 23, 1989, the accused entered a plea

of not guilty. On the same occasion, the offended parties (Rosario P.
Dy and minor children and Angelina M. Balcita and minor son Paolo)
made a reservation to file a separate civil action against the
accused arising from the offense charged.5 On November 29, 1989,
the offended parties actually filed with the Regional Trial Court,
Isabela, Branch 19, Cauayan a complaint against petitioner Rafael
Reyes Trucking Corporation, as employer of driver Romeo Dunca y
de Tumol, based on quasi delict. The petitioner settled the claim of
the heirs of Feliciano Balcita (the driver of the other vehicle
involved in the accident). The private respondents opted to pursue
the criminal action but did not withdraw the civil case quasi ex
delicto they filed against petitioner. On December 15, 1989, private

Upon agreement of the parties, the trial court consolidated both

criminal and civil cases and conducted a joint trial of the same.
The facts, as found by the trial court, which appear to be
undisputed, are as follows:
The defendant Rafael Reyes Trucking Corporation is a domestic
corporation engaged in the business of transporting beer products
for the San Miguel Corporation (SMC for Short) from the latter's San
Fernando, Pampanga plant to its various sales outlets in Luzon.
Among its fleets of vehicles for hire is the white truck trailer
described above driven by Romeo Dunca y Tumol, a duly licensed
driver. Aside from the Corporation's memorandum to all its drivers
and helpers to physically inspect their vehicles before each trip
(Exh. 15, pars. 4 & 5), the SMC's Traffic Investigator-Inspector
certified the roadworthiness of this White Truck trailer prior to June
20, 1989 (Exh. 17). In addition to a professional driver's license, it
also conducts a rigid examination of all driver applicants before
they are hired.
In the early morning of June 20, 1989, the White Truck driven by
Dunca left Tuguegarao, Cagayan bound to San Fernando, Pampanga
loaded with 2,000 cases of empty beer "Grande" bottles. Seated at
the front right seat beside him was Ferdinand Domingo, his truck
helper ("pahinante" in Pilipino). At around 4:00 o'clock that same
morning while the truck was descending at a slight downgrade
along the national road at Tagaran, Cauayan, Isabela, it approached
a damaged portion of the road covering the full width of the truck's
right lane going south and about six meters in length. These made
the surface of the road uneven because the potholes were about
five to six inches deep. The left lane parallel to this damaged
portion is smooth. As narrated by Ferdinand Domingo, before
approaching the potholes, he and Dunca saw the Nissan with its
headlights on coming from the opposite direction. They used to

15
Page

respondents withdrew the reservation to file a separate civil action

against the accused and manifested that they would prosecute the
civil aspect ex delicto in the criminal action.6 However, they did not
withdraw the separate civil action based on quasi delict against
petitioner as employer arising from the same act or omission of the
accused driver.7

evade this damaged road by taking the left lance but at that
particular moment, because of the incoming vehicle, they had to
run over it. This caused the truck to bounce wildly. Dunca lost
control of the wheels and the truck swerved to the left invading the
lane of the Nissan. As a result, Dunca's vehicle rammed the
incoming Nissan dragging it to the left shoulder of the road and
climbed a ridge above said shoulder where it finally stopped. (see
Exh. A-5, p. 8, record). The Nissan was severely damaged (Exhs. A7, A-8, A-9 and A-14, pp. 9-11 record), and its two passengers,
namely: Feliciano Balcita and Francisco Dy, Jr. died instantly (Exh. A19) from external and internal hemorrhage and multiple fractures
(pp. 15 and 16, record).
For the funeral expenses of Francisco Dy, Jr. her widow spent
P651,360.00 (Exh. I-3). At the time of his death he was 45 years old.
He was the President and Chairman of the Board of the Dynamic
Wood Products and Development Corporation (DWPC), a wood
processing establishment, from which he was receiving an income
of P10,000.00 a month. (Exh. D). In the Articles of Incorporation of
the DWPC, the spouses Francisco Dy, Jr. and Rosario Perez Dy
appear to be stockholders of 10,000 shares each with par value of
P100.00 per share out of its outstanding and subscribed capital
stock of 60,000 shares valued at P6,000,000.00 (Exhs. K-1 & 10-B).
Under its 1988 Income Tax Returns (Exh. J) the DWPC had a taxable
net income of P78,499.30 (Exh. J). Francisco Dy, Jr. was a La Salle
University graduate in Business Administration, past president of
the Pasay Jaycees, National Treasurer and President of the Philippine
Jaycees in 1971 and 1976, respectively, and World Vice-President of
Jaycees International in 1979. He was also the recipient of
numerous awards as a civic leader (Exh. C). His children were all
studying in prestigious schools and spent about P180,000.00 for
their education in 1988 alone (Exh. H-4).
As stated earlier, the plaintiffs' procurement of a writ of attachment
of the properties of the Corporation was declared illegal by the
Court of Appeals. It was shown that on December 26, 1989, Deputy
Sheriff Edgardo Zabat of the RTC at San Fernando, Pampanga,
attached six units of Truck Tractors and trailers of the Corporation at
its garage at San Fernando, Pampanga. These vehicles were kept
under PC guard by the plaintiffs in said garage thus preventing the
Corporation to operate them. However, on December 28, 1989, the

On June 6, 1992, the trial court rendered a joint decision, the

dispositive portion of which reads as follows:
WHEREFORE, in view of the foregoing considerations judgment is
hereby rendered:
1. Finding the accused Romeo Dunca y de Tumol guilty beyond
reasonable doubt of the crime of Double Homicide through Reckless
Imprudence with violation of the Motor Vehicle Law (Rep. Act No.
4136), and appreciating in his favor the mitigating circumstance of
voluntary surrender without any aggravating circumstance to offset
the same, the Court hereby sentences him to suffer two (2)
indeterminate penalties of four months and one day of arresto
mayor as minimum to three years, six months and twenty days as
maximum; to indemnify the Heirs of Francisco Dy. Jr. in the amount
of P3,000,000.00 as compensatory damages, P1,000,000.00 as
moral damages, and P1,030,000.00 as funeral expenses;
2. Ordering the plaintiff in Civil Case No. Br. 19-424 to pay the
defendant therein actual damages in the amount of P84,000.00;
and
3. Ordering the dismissal of the complaint in Civil Case No. Br. 19424.

16
Page

Court of Appeals dissolved the writ (p. 30, record) and on December
29, 1989, said Sheriff reported to this Court that the attached
vehicles were taken by the defendant's representative, Melita
Manapil (Exh. O, p. 31, record). The defendant's general Manager
declared that it lost P21,000.00 per day for the non-operation of the
six units during their attachment (p. 31, t.s.n., Natividad C.
Babaran, proceedings on December 10, 1990).8

On September 3, 1992, petitioner and the accused filed a notice of

appeal from the joint decision. 10
On the other hand, private respondents moved for amendment of
the dispositive portion of the joint decision so as to hold petitioner
subsidiarily liable for the damages awarded to the private
respondents in the event of insolvency of the accused. 11
On October 26, 1992, the trial court rendered a supplemental
decision amending the dispositive portion by inserting an additional
paragraph reading as follows:
2:A Ordering the defendant Reyes Trucking Corporation
subsidiarily liable for all the damages awarded to the heirs of
Francisco Dy, Jr., in the event of insolvency of the accused but
deducting therefrom the damages of P84,000.00 awarded to said
defendant in the next preceding paragraph; and . . . 12
On November 12, 1992, petitioner filed with the trial court a
supplemental notice of appeal from the supplemental decision. 13
During the pendency of the appeal, the accused jumped bail and
fled to a foreign country. By resolution dated December 29, 1994,
the Court of Appeals dismissed the appeal of the accused in the
criminal case. 14
On January 6, 1997, the Court of Appeals rendered an amended
decision affirming that of the trial court, as set out in the opening
paragraph of this decision. 15
On January 31, 1997, petitioner filed a motion for reconsideration of
the amended decision. 16

No pronouncement as to costs.
SO ORDERED.

On April 21, 1997, the Court of Appeals denied petitioner's motion

for reconsideration for lack of merit 17

Cauayan, Isabela, June 6, 1992.

Hence, this petition for review. 18

(Sgd.) ARTEMIO R. ALIVIA

Regional Trial Judge9

On July 21, 1997, the Court required respondents to comment on

the petition within ten (10) days from notice. 19

We now resolve to give due course to the petition and decide the
case.
Petitioner raises three (3) grounds for allowance of the petition,
which, however, boil down to two (2) basic issues, namely:
1. May petitioner as owner of the truck involved in the accident be
held subsidiarily liable for the damages awarded to the offended
parties in the criminal action against the truck driver despite the
filing of a separate civil action by the offended parties against the
employer of the truck driver?
2. May the Court award damages to the offended parties in the
criminal case despite the filing of a civil action against the employer
of the truck driver; and in amounts exceeding that alleged in the
information for reckless imprudence resulting in homicide and
damage to property? 22
We grant the petition, resolving under the circumstances pro hac
vice to remand the cases to the trial court for determination of the
civil liability of petitioner as employer of the accused driver in the
civil action quasi ex delicto re-opened for the purpose.
In negligence cases, the aggrieved party has the choice between
(1) an action to enforce civil liability arising from crime under Article
100 of the Revised Penal Code; and (2) a separate action for quasi
delict under Article 2176 of the Civil Code of the Philippines. Once
the choice is made, the injured party can not avail himself of any
other remedy because he may not recover damages twice for the
same negligent act or omission of the accused. 23 This is the rule
against double recovery.1wphi1.nt
In other words, "the same act or omission can create two kinds of
liability on the part of the offender, that is, civil liability ex delicto,
and civil liability quasi delicto" either of which "may be enforced
against the culprit, subject to the caveat under Article 2177 of the

17
Page

On January 27, 1998, the Solicitor General filed his comment. 20 On

April 13, 1998, the Court granted leave to petitioner to file a reply
and noted the reply it filed on March 11, 1998. 21

Civil Code that the offended party can not recover damages under
both types of liability." 24
In the instant case, the offended parties elected to file a separate
civil action for damages against petitioner as employer of the
accused, based on quasi delict, under Article 2176 of the Civil Code
of the Philippines. Private respondents sued petitioner Rafael Reyes
Trucking Corporation, as the employer of the accused, to be
vicariously liable for the fault or negligence of the latter. Under the
law, this vicarious liability of the employer is founded on at least
two specific provisions of law.
The first is expressed in Article 2176 in relation to Article 2180 of
the Civil Code, which would allow an action predicated on quasidelict to be instituted by the injured party against the employer for
an act or omission of the employee and would necessitate only a
preponderance of evidence to prevail. Here, the liability of the
employer for the negligent conduct of the subordinate is direct and
primary, subject to the defense of due diligence in the selection and
supervision of the employee. The enforcement of the judgment
against the employer in an action based on Article 2176 does not
require the employee to be insolvent since the nature of the liability
of the employer with that of the employee, the two being statutorily
considered joint tortfeasors, is solidary. 25 The second, predicated
on Article 103 of the Revised Penal Code, provides that an employer
may be held subsidiarily civilly liable for a felony committed by his
employee in the discharge of his duty. This liability attaches when
the employee is convicted of a crime done in the performance of his
work and is found to be insolvent that renders him unable to
properly respond to the civil liability adjudged. 26
As regards the first issue, the answer is in the negative. Rafael
Reyes Trucking Corporation, as employer of the accused who has
been adjudged guilty in the criminal case for reckless imprudence,
can not be held subsidiarily liable because of the filing of the
separate civil action based on quasi delict against it. In view of the
reservation to file, and the subsequent filing of the civil action for
recovery of civil liability, the same was not instituted with the
criminal action. Such separate civil action was for recovery of
damages under Article 2176 of the Civil Code, arising from the
same act or omission of the accused. 27

The intention of private respondents to proceed primarily and

directly against petitioner as employer of accused truck driver
became clearer when they did not ask for the dismissal of the civil
action against the latter based on quasi delict.
Consequently, the Court of Appeals and the trial court erred in
holding the accused civilly liable, and petitioner-employer of the
accused subsidiarily liable for damages arising from crime (ex
delicto) in the criminal action as the offended parties in fact filed a
separate civil action against the employer based on quasi delict
resulting in the waiver of the civil action ex delicto.
It might be argued that private respondents as complainants in the
criminal case withdrew the reservation to file a civil action against
the driver (accused) and manifested that they would pursue the
civil liability of the driver in the criminal action. However, the
withdrawal is ineffective to reverse the effect of the reservation
earlier made because private respondents did not withdraw the civil
action against petitioner based on quasi delict. In such a case, the
provision of Rule 111, Section 1, paragraph 3 of the 1985 Rules on
Criminal Procedure is clear that the reservation to file or the filing of
a separate civil action results in a waiver of other available civil
actions arising from the same act or omission of the accused. Rule
111, Section 1, paragraph 2 enumerated what are the civil actions
deemed waived upon such reservation or filing, and one of which is
the civil indemnity under the Revised Penal Code. Rule 111, Section
1, paragraph 3 of the 1985 Rules on Criminal Procedure specifically
provides:

18
Page

Pursuant to the provision of Rule 111, Section 1, paragraph 3 of the

1985 Rules of Criminal Procedure, when private respondents, as
complainants in the criminal action, reserved the right to file the
separate civil action, they waived other available civil actions
predicated on the same act or omission of the accused-driver. Such
civil action includes the recovery of indemnity under the Revised
Penal Code, and damages under Articles 32, 33, and 34 of the Civil
Code of the Philippines arising from the same act or omission of the
accused. 28

A waiver of any of the civil actions extinguishes the others. The

institution of, or the reservation of the right to file, any of said civil
actions separately waives the others.
The rationale behind this rule is the avoidance of multiple suits
between the same litigants arising out of the same act or omission
of the offender. The restrictive phraseology of the section under
consideration is meant to cover all kinds of civil actions, regardless
of their source in law, provided that the action has for its basis the
same act or omission of the offender. 29
However, petitioner as defendant in the separate civil action for
damages filed against it, based on quasi delict, may be held liable
thereon. Thus, the trial court grievously erred in dismissing
plaintiff's civil complaint. And the Court of Appeals erred in
affirming the trial court's decision. Unfortunately private
respondents did not appeal from such dismissal and could not be
granted affirmative relief. 30
The Court, however, in exceptional cases has relaxed the rules "in
order to promote their objectives and assist the parties in obtaining
just, speedy, and inexpensive determination of every action or
proceeding" 31 or exempted "a particular case from the operation
of the rules." 32
Invoking this principle, we rule that the trial court erred in awarding
civil damages in the criminal case and in dismissing the civil action.
Apparently satisfied with such award, private respondent did not
appeal from the dismissal of the civil case. However, petitioner did
appeal. Hence, this case should be remanded to the trial court so
that it may render decision in the civil case awarding damages as
may be warranted by the evidence. 33
With regard to the second issue, the award of damages in the
criminal case was improper because the civil action for the recovery
of civil liability was waived in the criminal action by the filing of a
separate civil action against the employer. As enunciated in Ramos
vs. Gonong, 34 "civil indemnity is not part of the penalty for the
crime committed." The only issue brought before the trial court in
the criminal action is whether accused Romeo Dunca y de Tumol is
guilty of reckless imprudence resulting in homicide and damage to

In this case, accused-driver jumped bail pending his appeal from his
conviction. Thus, the judgment convicting the accused became final
and executory, but only insofar as the penalty in the criminal action
is concerned. The damages awarded in the criminal action was
invalid because of its effective waiver. The pronouncement was void
because the action for recovery of the civil liability arising from the
crime has been waived in said criminal action.
With respect to the issue that the award of damages in the criminal
action exceeded the amount of damages alleged in the amended
information, the issue is de minimis. At any rate, the trial court
erred in awarding damages in the criminal case because by virtue
of the reservation of the right to bring a separate civil action or the
filing thereof, "there would be no possibility that the employer
would be held liable because in such a case there would be no
pronouncement as to the civil liability of the accused. 35
As a final note, we reiterate that "the policy against double recovery
requires that only one action be maintained for the same act or
omission whether the action is brought against the employee or
against his employer. 36 The injured party must choose which of
the available causes of action for damages he will bring. 37
Parenthetically, the trial court found the accused "guilty beyond
reasonable doubt of the crime of Double Homicide Through
Reckless Imprudence with violation of the Motor Vehicle Law (Rep.
Act No. 4136)". There is no such nomenclature of an offense under
the Revised Penal Code. Thus, the trial court was misled to
sentence the accused "to suffer two (2) indeterminate penalties of
four (4) months and one (1) day of arresto mayor, as minimum, to
three (3) years, six (6) months and twenty (20) days of prision
correccional, as maximum." This is erroneous because in reckless
imprudence cases, the actual penalty for criminal negligence bears
no relation to the individual willfull crime or crimes committed, but
is set in relation to a whole class, or series of crimes. 38

19
Page

property. The action for recovery of civil liability is not included

therein, but is covered by the separate civil action filed against the
petitioner as employer of the accused truck-driver.

Unfortunately, we can no longer correct this judgment even if

erroneous, as it is, because it has become final and executory.
Under Article 365 of the Revised Penal Code, criminal negligence "is
treated as a mere quasi offense, and dealt with separately from
willful offenses. It is not a question of classification or terminology.
In intentional crimes, the act itself is punished; in negligence or
imprudence, what is principally penalized is the mental attitude or
condition behind the act, the dangerous recklessness, lack of care
or foresight, the imprudencia punible. Much of the confusion has
arisen from the common use of such descriptive phrase as
"homicide through reckless imprudence", and the like; when the
strict technical sense is, more accurately, "reckless imprudence
resulting in homicide"; or "simple imprudence causing damages to
property"." 39
There is need, therefore, to rectify the designation of the offense
without disturbing the imposed penalty for the guidance of bench
and bar in strict adherence to precedent.
WHEREFORE, the Court GRANTS the petition and SETS ASIDE the
amended decision and resolution of the Court of Appeals in CA-G.R.
CR No. 14448, promulgated on January 6, 1997, and the joint
decision of the Regional Trial Court, Isabela, Branch 19, Cauayan, in
Criminal Case No. Br. 19-311 and Civil Case No. Br. 19-424, dated
June 6, 1992.
IN LIEU THEREOF, the Court renders judgment as follows:
(1) In Criminal Case No. Br. 19-311, the Court declares the accused
Romeo Dunca y de Tumol guilty beyond reasonable doubt of
reckless imprudence resulting in homicide and damage to property,
defined and penalized under Article 365, paragraph 2 of the
Revised Penal Code, with violation of the automobile law (R.A. No.
4136, as amended), and sentences him to suffer two (2)
indeterminate penalties of four (4) months and one (1) day of
arresto mayor, as minimum, to three (3) years, six (6) months and
twenty (20) days of prision correccional, as maximum, 40 without
indemnity, and to pay the costs, and

No costs in this instance.

SO ORDERED.

G.R. No. L-59311

January 31, 1985

RADIO COMMUNICATIONS OF THE PHILIPPINES, INC. (RCPI),

petitioner,
vs.
HON. JAIME M. LANTIN, THE SHERIFF OF THE COURT OF FIRST
INSTANCE OF QUEZON CITY and RUFUS B. RODRIGUEZ,
respondents.
G.R. No. L-59320

January 31, 1985

GLOBE MACKAY CABLE AND RADIO CORPORATION, petitioner,

vs.
THE HONORABLE COURT OF APPEALS, HON. JAIME M. LANTIN, THE
SHERIFF OF THE COURT OF FIRST INSTANCE OF QUEZON CITY, AND
RUFUS B. RODRIGUEZ, respondents.

GUTIERREZ, JR., J.:

In these interrelated petitions for review on certiorari, the Radio
Communications of the Philippines, Inc. (RCPI) and Globe Mackay
Cable and Radio/Corporation (GLOBE) question the decision of the
Court of Appeals, now Intermediate Appellate Court, which refused
to set aside the orders of the Court of First Instance of Rizal
directing execution pending appeal of an award of P213,148.00
damages in favor of private respondent Rufus B. Rodriguez.

20
Page

(2) In Civil Case No. Br. 19-424, the Court orders the case re-opened
to determine the liability of the defendant Rafael Reyes Trucking
Corporation to plaintiffs and that of plaintiffs on defendant's
counterclaim.

On September 8, 1978, Rufus B. Rodriguez, as President of the

World Association of Law Students (WALS), sent two cablegrams
overseas through RCPI, one addressed to Mohammed Elsir Taha in
Khartoum, Sudan Socialist Union, and the other to Diane Merger in
Athens, Georgia, United States. The cablegrams were, in turn,
relayed to GLOBE for transmission to their foreign destinations. The
telegram to Taha advised him of Rodriguez's pending arrival in
Khartoum on September 18, 1978, while the telegram to Merger
advised her of the scheduled WALS conference in Khartoum.
Rodriguez left the Philippines on September 15, 1978. On
September 18, 1978, he arrived in Khartoum, Sudan at 9:30 in the
evening. Nobody was at the airport to meet him. Due to the
lateness of the hour, he was forced to sleep at the airport. He lined
up five (5) chairs together and lay down with his luggages near him.
Because of the non-receipt of the cablegram, Taha was not able to
meet him. Worse all preparations for the international conference
had to be cancelled. Furthermore, Fernando Barros, the VicePresident, arrived the next day from Chile, followed by the other
officers from other countries except Diane Merger, the
organization's secretary. It turned out that the wire sent by
Rodriguez to Merger was delivered to the address on the message
but the person who delivered it was told that the addressee was no
longer staying there. This fact was not accordingly reported to
Rodriguez in Metro Manila. The undelivered cablegram was not
returned by the correspondent abroad to Globe for disposition in the
Philippines,
On December 8, 1978, Rodriguez filed a complaint for
compensatory damages in the amount of P45,147.00, moral
damages in the amount of P250,000.00,' and exemplary damages
in the amount of P50,000.00 against RCPI and GLOBE.
On March 17, 1980, the then Presiding Judge Lino L. Aover of the
Court of First Instance of Rizal rendered a decision, the dispositive
portion of which reads as follows:
WHEREFORE, judgment is hereby rendered ordering the defendants
jointly and severally to pay the plaintiff the total sum of TWO
HUNDRED THIRTEEN THOUSAND ONE HUNDRED FORTY EIGHT
PESOS (P213,148.00) by way of damages and to pay the costs of
this suit.

Moral damages consequent to the humiliation and embarrassment

that the plaintiff suffered under the two causes of action in the
amount of P100,000.00 are adequate. Exemplary damages under
both counts are fixed reasonably at P50,000.00. On the actual
damages, the court accepts plaintiff's expenses for the preparation
of the trip at P10,000.00; plane fare at P20,000.00; stay in transit in
Pakistan at P5,000.00; his hotel bills in Khartoum at P4,000.00; his
meals in Khartoum at P4,000.00 and the telegraphic toll at P78.00.
The court refuses the sum spent for the dinner that he allegedly
tendered as not established by sufficient proof.
With respect to the telegram sent to Diane Merger, the court finds
that the actual damages amount to P70.00 representing the cost of
the cablegram. As for attorney's fees, the court finds that the
amount of P20,000.00 including litigation of expenses are
reasonable.
On May 26, 1980, Rodriguez filed a "Motion for Execution Before
Expiration of Time to Appeal" relying on Rule 39, Section 2 of the
Revised Rules of Court alleging that the appeal is clearly dilatory
and that the lapse of time would make the ultimate judgment
illusory and ineffective. An opposition to the motion was filed by
RCPI on June 3, 1980 and by GLOBE on November 18,1980.
On January 21, 1981, the respondent court of first instance granted
the said motion in an order which reads as follows:
Upon consideration of the Motion for execution pending appeal, the
opposition thereto and the arguments in open court by the parties,
and finding that:
a) the appeal was for the purpose of delay, there being breach of
contract, and defendants' evidence being weak or feeble;
b) plaintiff is willing to put up a bond in the amount of P213,148.00
to answer for damages if the decision is reversed on appeal

21
Page

The above amount is broken down as follows by the trial court:

the Court grants the motion. Let writ of execution pending appeal
be issued upon the filing of a bond by plaintiff in the sum of
P213,148.00. Said bond should be filed within ten (10) days from
receipt of this order.
On February 5, 1981, the same court issued another order which
reads as follows:
The bond pursuant to the order of January 21, 1981, is approved.
Let writ of execution of judgment pending appeal be issued
forthwith.
On February 10, 1981, GLOBE filed a motion for reconsideration of
the above order and expressed its desire to put up a supersedeas
bond to stay immediate execution. This motion was denied in an
order dated February 17, 1981. Even before the issuance of this
order denying petitioner's motion for reconsideration, the
respondent Sheriff, on February 13, 1981, insisted on levying on the
funds and assets of petitioners RCPI and GLOBE, prompting them to
file an "Urgent Motion to Recall Writ of Execution. This urgent
motion was likewise denied.
On February 17, 1981, RCPI and GLOBE filed with the Court of
Appeals a petition for certiorari, mandamus, and prohibition with a
prayer for the issuance of a writ of preliminary injunction. On
February 20, 1981, the Court of Appeals issued a restraining order
enjoining the lower court from further proceeding with the civil case
and from enforcing the writ of execution until further orders. On
November 10, 1981, the Court of Appeals rendered a decision. The
dispositive portion reads as follows:
WHEREFORE, the herein petition is hereby dismissed for lack of
merit and the questioned orders of January 21, 1981, February 5,
1981 and February 20, 1981 are hereby declared valid and legal.
Consequently, the restraining order issued earlier on February 2,
1981 is hereby lifted.
With costs against the petitioners.
Within fifteen (15) days from receipt of the abovequoted decision,
the petitioners filed with the respondent Court of Appeals a motion

On January 18, 1982, this petition entitled appeal by certiorari was

filed.
The petitioners' arguments revolve around the alleged grave abuse
of discretion committed by the Court of Appeals when it declined to
disturb the judgment of the trial court on the issuance of the writ of
execution pending appeal.
Section 2, Rule 39 of the Revised Rules of Court provides:
On motion of the prevailing party with notice to the adverse party
the court may, in its discretion, order execution to issue even before
the expiration of the time to appeal, upon good reasons to be
stated in a special order. If a record on appeal is filed thereafter, the
motion and the special order shall be included therein.
The rule specifically vests the court with the exercise of
discretionary power. The requisites for the court's valid exercise of
the discretion to order execution pending appeal are: (1) there must
be a motion by the prevailing party with notice to the adverse
party; (2) there must be good reasons for issuing the execution, and
(3) the good reasons must be stated in a special order.
Considering the nature of the wrongful acts found by the trial court
and the amount of damages adjudicated as recoverable, both of
which are stated in detail in the decisions and various orders of the
trial court and the appellate court, we are constrained to sustain
the respondent courts insofar as the award for actual or
compensatory damages are concerned but to postpone the
execution of the awards for moral and exemplary damages until
such time as the merits of the cases now on regular appeal before
the Court of Appeals are finally determined. The execution of any
award for moral and exemplary damages is dependent on the
outcome of the main case. Unlike actual damages for which the
petitioners may clearly be held liable if they breach a specific
contract and the amounts of which are fixed and certain, liabilities
with respect to moral and exemplary damages as wen as the exact

22
Page

for reconsideration. On December 28, 1981, petitioners received a

resolution of the Court of Appeals denying their motion for
reconsideration.

amounts remain uncertain and indefinite pending resolution by the

Intermediate Appellate Court and eventually the Supreme Court.
The existence of the factual bases of these types of damages and
their causal relation to the petitioners' act will have to be
determined in the light of the assignments of errors on appeal. It is
possible that the petitioners, after all, while liable for actual
damages may not be liable for moral and exemplary damages. Or
as in some cases elevated to the Supreme Court, the awards may
be reduced. (See Radio Communications of the Philippines, Inc. v.
Intermediate Appellate Court, et al., G.R. No. 67034, December 3,
1984)
In its questioned decision, the Court of Appeals acknowledged the
nature of execution pending appeal as an exceptional remedy which
must be interpreted restrictively, citing the many ruling cases on
this point. At the same time, what was before the appellate court
was not the application of a general rule but the exception thereto,
the special reasons or circumstances warranting execution pending
appeal. The Court of Appeals quoted with approval the trial court's
findings:
xxx

xxx

xxx

2. Execution pending appeal is discretionary. Execution pending

appeal is a matter of sound discretion on the part of the trial court.
(National Marketing Corporation v. Tan, L- 17768, March 31, 1962;
Ong Sit v. Piccio, 78 Phil. 232; Go Changjo v. Roldan Sy Changjo, 18
Phil. 405). The appellate court will not interfere, control or inquire
into the exercise of this discretion, unless it is shown that there has
been an abuse thereof. Asturias v. Victoriano, 98 Phil. 581; Naredo
v. Yatco, 80 Phil. 220; Federal Fils Inc. v. Ocampo, 78 Phil. 479; Ong
Sit v. Piccio supra; Buenaventura v. Pea 78 Phil. 798; Presbitero v.
Rodas, 73 Phil. 300; Iloilo Trading and Exchange v. Rodas, 73 Phil.
327; Hacienda Navarro, Inc. v. Labrador, 65 Phil. 536; Lusk v.
Stevens, 64 Phil. 154; Gamay v. Gutierrez David, 48 Phil. 768;
Gutierrez Hermanos v. Orias Hermanos & Co., 39 Phil. 92; Case v.
Metropole Hotel, 5 Phil. 49; Macke v. Camps, 5 Phil. 185; Calvo v. De
Gutierrez, 4 Phil. 203)
3. Requirement of good reasons. The requirement that execution
pending appeal must be supported by good reasons, to be stated in

The respondent court had to look back at the sworn complaint that,
the private respondent in the aforesaid complaint had to sleep at
the airport left alone to himself throughout the night with nobody to

The merits of the main case are not to be determined in a petition

questioning execution pending appeal (City of Manila v. Court of
Appeals, 72 SCRA 98). However, the facts and circumstances clearly

Whether the reasons are so urgent and compelling as to justify

execution pending appeal depends upon the circumstances of the
case. The filing of a bond by the prevailing party, as required by the
court in its order of execution, constitutes good reason for the
issuance of a writ of execution mending appeal (Rodriguez v. Court
of Appeals, L-12554, May 23, 1959; Hacienda Navarro, Inc. v.
Labrador, supra; People's Bank & Trust Co. v. San Jose, 96 Phil. 895).
The court likewise noted that the questioned order made reference
to the reasons averred in the motion which appeared to it to be
good and which it found to be sufficient compliance with the law
(Joven v. Boncan, 67 Phil. 252). It noted the finding of the trial court
that the appeal interposed by the petitioners was not based on
strong grounds, which finding is again a good reason for execution
pending appeal. (Presbitero v. Rodas, 73 Phil. 300; Iloilo Trading
Center and Exchange v. Rodas, 78 Phil. 789)
The petitioners pit their arguments against the conclusions of the
Court of Appeals and the Court of First Instance on the special
nature of the circumstances warranting the exercise of discretionary
power, the weak defenses at trial and weak reasons on appeal, and
the nature of the evidence upon which the decision is based. Insofar
as actual and compensatory damages are concerned, we find
insufficient cause to restrain the exercise of discretionary power.

23

The petitioners question the findings of the Court of Appeals that:

talk to because in Khartoum, Sudan, only a few people if at all,

could speak English and because our country has no consulate in
the said place, language barrier was a big problem in looking for a
taxicab to the hotel. To repeat, he had to sleep on the 5 chairs put
together; he is a respectable man in the country who had to go to
Khartoum as President of the World Association of Law Students in
the Philippines and had to make the trip to Sudan for a conference;
that he was a third year law student of the College of Law in the
University of the Philippines and the Cagayan de Oro Sangguniang
Panglunsod City where he is from, even passed a Resolution
congratulating him for having been chosen or selected the
President of the World Association of Law Students or WALS, invited
by the Sudanese government for the conference on September 18,
1978: arriving at the airport at 9:30 in the evening; as he could not
talk in Arabic, he was left alone to himself to repeat until he had to
wait for the next morning to have somebody to translate in Arabic
language how to find the place of Mohammed Elsir Taha who invited
him as per telegrams exchanged between him and the plaintiff, now
private respondent that the latter's residence was found to be 20
kilometers away (Office of the Secretary of the African Youth
Committee, Sudan Socialist Union); that because the telegram sent
by him in Manila, Philippines on September 8, 1978 was not
delivered to Mohammed Taha, the latter was not able to meet him
at the airport; on the other hand, the telegram sent to Diane Merger
as Secretary of the conference committee having been delivered to
the address given by him but the person who delivered was told
that the said addressee was no longer staying there and moved out
a year ago but this fact was not informed/reported accordingly to
him in Metro Manila, Philippines where the cablegram was sent and
which cablegram was not returned by the receiver abroad to Globe
for disposition in the Philippines. Evidently, there was a breach of
contractual obligation committed against him by the defendants,
now private respondent Globe Mackay and RCPI, and therefore, he
is entitled to such damages which he has claimed for the
humiliation, suffering, mental anguish and besmirched reputation
as a result of the non-delivery of the cables, which damages
amounted to P213,148.00.

Page

a special order, should be complied with because the existence of

good reasons is the element that gives validity to an order of
execution (Alcasid v. Samson, 102 Phil. 735; De la Rosa v. City of
Baguio, 90 Phil. 720) (sic) Unless the reasons are made known it
would be difficult to determine whether judicial discretion has been
properly exercised in the case (Asturias v. Victoriano, supra If the
discretionary power of the court is to have any meaning, the
sufficiency of the reasons for ordering such execution is naturally to
be determined by the court. (Buenaventura v. Pea, supra; Lusk v.
Stevens, supra.)

Petitioners question the alleged presence of superior circumstances

demanding urgency of execution pending appeal. Any delay in final
adjudication on the merits will be the fault of the courts and not
theirs, according to them.

24
Page

brought out during trial cannot help but influence whether or not an
appeal appears to be dilatory and whether or not there are
sufficient reasons including considerations of justice and equity to
justify a departure from the regular procedures regarding execution.

will suffer by reason of such hasty execution for the reason that the
said execution will be morally, legally, equitably and outrageously
incorrect. ...
The respondent introduced evidence to show that he suffered
mental anguish, serious anxiety, besmirched reputation, wounded
feelings, and social humiliation. The petitioners question the extent
of these sufferings and further aver that their acts claimed to have
caused the injury were not wrongful, deliberate, wanton, and
tainted with bad faith or fraud.

Petitioner GLOBE states:

In the light of the peculiar circumstances obtaining in the case at
bar, among which are that:
1. The judgment creditor does not even have a cause of action
against herein petitioner;
2. The greater portion of the amount awarded in the judgment of
the trial court cannot be legally given; and
3. Herein petitioner's defenses are legal and valid and the evidence
submitted to prove them, positive and convincing.
any bond which the prevailing party might have posted cannot fully
compensate for the inconvenience and damages which petitioner

Our review of the records constrains us to allow execution pending

appeal of actual but not the moral and exemplary damages which
must await the final determination of the main cases.
WHEREFORE, the petition is GRANTED PARTIAL DUE COURSE. The
November 10, 1981 decision and December 22, 1981 resolution of
the appellate court are SET ASIDE and a new ORDER is ENTERED
authorizing execution pending appeal of P43,148.00 actual
damages upon the private respondent's filing of a bond in the same
amount. The execution of any award for moral damages, exemplary
damages, and attorney's fees is enjoined until after final resolution
of the issues in the main case.
SO ORDERED.