CRIM LAW FINALS I ACJUCO 1
MITIGATING CIRCUMSTANCES
ART 13, RPC
Art. 13. Mitigating circumstances. — The following are mitigating
circumstances;
1. Those mentioned in the preceding chapter, when all the
requisites necessary to justify or to exempt from criminal liability in
the respective cases are not attendant.
2. That the offender is under eighteen year of age or over seventy
years. In the case of the minor, he shall be proceeded against in
accordance with the provisions of Art. 803. That the offender had
no intention to commit so grave a wrong as that committed.
4. That sufficient provocation or threat on the part of the offended
party immediately preceded the act.
5. That the act was committed in the immediate vindication of a
grave offense to the one committing the felony (delito), his spouse,
ascendants, or relatives by affinity within the same degrees.
6. That of having acted upon an impulse so powerful as naturally
to have produced passion or obfuscation.
7. That the offender had voluntarily surrendered himself to a
person in authority or his agents, or that he had voluntarily
confessed his guilt before the court prior to the presentation of the
evidence for the prosecution;
8. That the offender is deaf and dumb, blind or otherwise suffering
some physical defect which thus restricts his means of action,
defense, or communications with his fellow beings.
9. Such illness of the offender as would diminish the exercise of
the will-power of the offender without however depriving him of the
consciousness of his acts. chan robles virtual law library
10. And, finally, any other circumstances of a similar nature and
analogous to those above mentioned.chanrobles virtual law libra
Section Two. — Rules for the application of penalties with regard
to the mitigating and aggravating circumstances, and habitual
delinquency.
ART. 62. EFFECT OF THE ATTENDANCE OF MITIGATING OR
AGGRAVATING CIRCUMSTANCES AND OF HABITUAL
DELINQUENCY. — Mitigating or aggravating circumstances and
habitual delinquency shall be taken into account for the purpose
of diminishing or increasing the penalty in conformity with the
following rules:
1. Aggravating circumstances which in themselves constitute a
crime especially punishable by law or which are included by the
law in defining a crime and prescribing the penalty therefor shall
not be taken into account for the purpose of increasing the penalty.
2. The same rule shall apply with respect to any aggravating
circumstance inherent in the crime to such a degree that it must of
necessity accompany the commission thereof.
3. Aggravating or mitigating circumstances which arise from the
moral attributes of the offender, or from his private relations with
the offended party, or from any other personal cause, shall only
serve to aggravate or mitigate the liability of the principals,
accomplices and accessories as to whom such circumstances are
attendant.
4. The circumstances which consist in the material execution of the
act, or in the means employed to accomplish it, shall serve to
aggravate or mitigate the liability of those persons only who had
knowledge of them at the time of the execution of the act or their
cooperation therein.
5. Habitual delinquency shall have the following effects:
(a) Upon a third conviction the culprit shall be sentenced to the
penalty provided by law for the last crime of which he be found
guilty and to the additional penalty of prision correccional in its
medium and maximum periods;
(b) Upon a fourth conviction, the culprit shall be sentenced to the
penalty provided for the last crime of which he be found guilty and
to the additional penalty of prision mayor in its minimum and
medium periods; and
(c) Upon a fifth or additional conviction, the culprit shall be
sentenced to the penalty provided for the last crime of which he be
found guilty and to the additional penalty of prision mayor in its
maximum period to reclusion temporal in its minimum period.
Notwithstanding the provisions of this article, the total of the two
penalties to be imposed upon the offender, in conformity herewith,
shall in no case exceed 30 years.
For the purpose of this article, a person shall be deemed to be
habitual delinquent, is within a period of ten years from the date of
his release or last conviction of the crimes of serious or less
serious physical injuries, robo, hurto, estafa or falsification, he is
found guilty of any of said crimes a third time or oftener.
ART. 63. RULES FOR THE APPLICATION OF INDIVISIBLE
PENALTIES. — In all cases in which the law prescribes a single
indivisible penalty, it shall be applied by the courts regardless of
any mitigating or aggravating circumstances that may have
attended the commission of the deed.
In all cases in which the law prescribes a penalty composed of two
indivisible penalties, the following rules shall be observed in the
application thereof:
1. When in the commission of the deed there is present only one
aggravating circumstance, the greater penalty shall be applied.
2. When there are neither mitigating nor aggravating
circumstances and there is no aggravating circumstance, the
lesser penalty shall be applied.
3. When the commission of the act is attended by some mitigating
circumstances and there is no aggravating circumstance, the
lesser penalty shall be applied.
4. When both mitigating and aggravating circumstances attended
the commission of the act, the court shall reasonably allow them to
offset one another in consideration of their number and
importance, for the purpose of applying the penalty in accordance
with the preceding rules, according to the result of such
compensation.
ART. 64. RULES FOR THE APPLICATION OF PENALTIES
WHICH CONTAIN THREE PERIODS. — In cases in which the
penalties prescribed by law contain three periods, whether it be a
single divisible penalty or composed of three different penalties,
each one of which forms a period in accordance with the
provisions of Articles 76 and 77, the court shall observe for the
application of the penalty the following rules, according to whether
there are or are not mitigating or aggravating circumstances:
CRIM LAW FINALS I ACJUCO 2

1. When there are neither aggravating nor mitigating
circumstances, they shall impose the penalty prescribed by law in
its medium period.
2. When only a mitigating circumstances is present in the
commission of the act, they shall impose the penalty in its
minimum period.
3. When an aggravating circumstance is present in the
commission of the act, they shall impose the penalty in its
maximum period.
ART. 68. PENALTY TO BE IMPOSED UPON A PERSON UNDER
EIGHTEEN YEARS OF AGE. — When the offender is a minor
under eighteen years and his case is one coming under the
provisions of the paragraphs next to the last of Article 80 of this
Code, the following rules shall be observed:
1. Upon a person under fifteen but over nine years of age, who is
not exempted from liability by reason of the court having declared
that he acted with discernment, a discretionary penalty shall be
imposed, but always lower by two degrees at least than that
prescribed by law for the crime which he committed.

4. When both mitigating and aggravating circumstances are 2. Upon a person over fifteen and under eighteen years of age the
present, the court shall reasonably offset those of one class penalty next lower than that prescribed by law shall be imposed,
against the other according to their relative weight. but always in the proper period.

5. When there are two or more mitigating circumstances and no REP. ACT NO. 9344 as amended
aggravating circumstances are present, the court shall impose the
penalty next lower to that prescribed by law, in the period that it
may deem applicable, according to the number and nature of such
circumstances.

6. Whatever may be the number and nature of the aggravating

circumstances, the courts shall not impose a greater penalty
than that prescribed by law, in its maximum period.

7. Within the limits of each period, the court shall determine the
extent of the penalty according to the number and nature of
the aggravating and mitigating circumstances and the greater
and lesser extent of the evil produced by the crime.

ART. 65. RULE IN CASES IN WHICH THE PENALTY IS NOT

COMPOSED OF THREE PERIODS. — In cases in which the
penalty prescribed by law is not composed of three periods, the
courts shall apply the rules contained in the foregoing articles,
dividing into three equal portions of time included in the penalty
prescribed, and forming one period of each of the three portions.

1. INCOMPLETE JUSTIFYING OR
EXEMPTING CIRCUMSTANCES
ART. 67. PENALTY TO BE IMPOSED WHEN NOT ALL THE
REQUISITES OF EXEMPTION OF THE FOURTH
CIRCUMSTANCE OF ARTICLE 12 ARE PRESENT.— When all
the conditions required in circumstances Number 4 of Article 12 of
this Code to exempt from criminal liability are not present, the
penalty of arresto mayor in its maximum period to prision
correccional in its minimum period shall be imposed upon the
culprit if he shall have been guilty of a grave felony, and arresto
mayor in its minimum and medium periods, if of a less grave
felony.

ART. 69. PENALTY TO BE IMPOSED WHEN THE CRIME

COMMITTED IS NOT WHOLLY EXCUSABLE. — A penalty lower
by one or two degrees than that prescribed by law shall be
imposed if the deed is not wholly excusable by reason of the
lack of some of the conditions required to justify the same or to
exempt from criminal liability in the several cases mentioned in
Article 11 and 12, provided that the majority of such conditions be
present. The courts shall impose the penalty in the period which
may be deemed proper, in view of the number and nature of the
conditions of exemption present or lacking.

2. MINORITY AND OLD AGE

CRIM LAW FINALS I ACJUCO 3
3. LACK OF INTENTION TO COMMIT SO
GRAVE A WRONG
G.R. No. L-30801 March 27, 1974
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
DOMINGO URAL, accused-appellant.
Office of the Solicitor General Felix Q. Antonio, Assistant Solicitor
General Antonio A. Torres and Solicitor Vicente P. Evangelista for
plaintiff-appellee.
Vicente Cerilles and Emeliano Deleverio for accused-appellant.
AQUINO, J.
This is an appeal of defendant Domingo Ural from the decision of
Judge Vicente G. Ericta of the Court of First Instance of
Zamboanga del Sur, convicting him of murder, sentencing him to
reclusion perpetua, and ordering him to indemnify the heirs of Felix
Napola in the sum of twelve thousand pesos and to pay the costs
(Criminal Case No. 3280).
The judgment of conviction was based on the testimony of
Brigido Alberto, a twenty-six year old former detention prisoner in
Buug, Zamboanga Del Sur. He had been accused of murder and
then set at liberty on June 9, 1966 after posting bail. He went to
Barrio Camongo, Dumalinao where his father resided. On July 31,
1966, he intended to go to his residence at Barrio Upper Lamari,
Buug but night overtook him in the town. He decided to sleep in
the Buug municipal building where there would be more security.
Upon arrival in the municipal building at around eight o'clock, he
witnessed an extraordinary occurrence. He saw Policeman Ural
(with whom he was already acquainted) inside the jail. Ural was
boxing the detention prisoner, Felix Napola. As a consequence
of the fistic blows, Napola collapsed on the floor. Ural, the
tormentor, stepped on his prostrate body.
Ural went out of the cell. After a short interval, he returned with a
bottle. He poured its contents on Napola's recumbent body. Then,
he ignited it with a match and left the cell. Napola screamed in
agony. He shouted for help. Nobody came to succor him.
Much perturbed by the barbarity which he had just seen, Alberto
left the municipal building. Before his departure, Ural cautioned
him: "You better keep quiet of what I have done" (sic). Alberto
did not sleep anymore that night. From the municipal building, he
went to the crossing, where the cargo trucks passed. He
hitchhiked in a truck hauling iron ore and went home.
Doctor Luzonia R. Bakil, the municipal health officer, certified that
the thirty-year old victim, whom she treated twice, sustained
second-degree burns on the arms, neck, left side of the face
and one-half of the body including the back (Exh. A). She
testified that his dermis and epidermis were burned. If the burns
were not properly treated, death would unsue from toxemia and
tetanus infection. "Without any medical intervention", the burns
would cause death", she said. She explained that, because there
was water in the burnt area, secondary infection would set in, or
there would be complications.
Napola died on August 25, 1966. The sanitary inspector issued a
certificate of death indicating "burn" as the cause of death (Exh.
B).
The trial court fittingly deplored the half-hearted manner in which
the prosecution (represented by Fiscal Roque and the private
prosecutor, Delfin Agbu) handled the case. It bewailed the
prosecution's failure to present as witnesses Juanito de la Serna
and Ernesto Ogoc, the detention prisoners who saw the burning of
Napola. They had executed a joint affidavit which was one of the
bases of the information for murder.1
It noted that Rufina Paler, the victim's widow, who was present in
court, was a vital witness who should have been presented as a
witness to prove the victim's dying declaration or his statements
which were part of the res gestae.2
In this appeal appellant's three assignment of error may be
condensed into the issue of credibility or the sufficiency of the
prosecution's evidence to prove his guilt beyond reasonable doubt.
DEFENSE
His story is that at around nine o'clock in the evening of July 31,
1966 he was in the municipal jail on guard duty. He heard a
scream for help from Napola. He entered the cell and found
Napola's shirt in flames. With the assistance of Ernesto Ogoc and
Anecio Siton, Ural removed Napola's shirt. Ural did not summon a
doctor because, according to Napola, the burns were not serious.
Besides, he (Ural) was alone in the municipal building.
Felicisima Escareal, Ogoc's common-law wife, whom the trial court
branded "as a complete liar", testified that she heard Napola's
scream for help. She saw that Napola's shirt was burning but she
did not know how it happened to be burned. She said that Ural and
Siton removed the shirt of Napola and put out the fire.
Teofilo Matugas, a policeman, declared that he was relieved as
guard by Ural at eight-thirty in the evening of July 31st. Matugas
denied that Alberio was in the municipal building at eight o'clock.
The trial court held that Ural's denials cannot prevail over the
positive testimony of Alberio. It observed that Ural's alleged act
of removing Napola's burning shirt was at most an indication that
he was "belatedly alarmed by the consequence of his evil act"
but would not mean that he was not the incendiary.
Appellant Ural (he was thirty-four years old in March, 1969), in
assailing the credibility of Alberio, pointed out that he was not listed
as a prosecution witness and that he was convicted of murder.
Those circumstances would not preclude Alberio from being a
credible witness. It should be noted that the accused was a
policeman. Ordinarily, a crime should be investigated by the police.
In this case, there was no police investigation. The crime was
investigated by a special counsel of the fiscal's office. That might
explain why it was not immediately discovered that Alberio was an
eyewitness of the atrocity perpetrated by Ural.
The testimonies of Felicisima Escareal, Ogoc's common-law wife,
and Policeman Matugas are compatible with the prosecution's
theory that Ural burned Napola's shirt. Ultimately, the factual issue
is: who should be given credence, Alberio or Ural? As already
stated, the trial court which had the advantage of seeing their
demeanor and behavior on the witness stand, chose to believe
Alberio. This Court, after a searching scrutiny of the whole record,
does not find any justification for disbelieving Alberio.
This case is covered by article 4 of the Revised Penal code which
provides that "criminal liability shall be incurred by any person
committing a felony (delito) although the wrongful act done
be different from that which he intended". The presumption is
"that a person intends the ordinary consequences of his voluntary
act" (Sec. 5[c], Rule 131, Rules of Court).
CRIM LAW FINALS I ACJUCO 4

The rationale of the rule in article 4 is found in the doctrine that "el So ordered.
que es causa de la causa es causa del mal causado" (he who is
the cause of the cause is the cause of the evil caused)."Conforme
a dicha doctrina no alteran la relacion de causalidad las
condiciones preexistentes (como las condiciones patologicasdel
lesionado, la predisposicion del ofendido, la constitucion fisica del
herido, etc.); ni las condiciones sobrevenidas (como el tetanos, la
pulmonia, o la gangrena sobrevenidos a consequencia de la
herida)" (1 Cuello Calon, Codigo Penal, 12th Ed., 1968, p. 335-
336).

The similar rule in American jurisprudence is that "if the act of the
accused was the cause of the cause of death, no more is required"
(40 C.J.S. 854). So, where during a quarrel, the accused struck the
victim with a lighted lamp, which broke and fell to the floor, causing
the oil to ignite and set fire to the rug, and, in the course of the
scuffle, which ensued on the floor, the victim's clothes caught fire,
resulting in burns from which he died, there was a sufficient causal
relation between the death and the acts of the accused to warrant
a conviction of homicide (Williams vs. U.S., 20 Fed. 2nd 269, 40
C.J.S. 854, note 90).

There is a rule that "an individual who unlawfully inflicts wounds

upon another person, which result in the death of the latter, is
guilty of the crime of homicide, and the fact that the injured person
did not receive proper medical attendance does not affect the
criminal responsibility" (U.S. vs. Escalona, 12 Phil. 54). In the
Escalona case, the victim was wounded on the wrist. It would not
have caused death had it been properly treated. The victim died
sixty days after the infliction of the wound. It was held that lack of
medical care could not be attributed to the wounded man. The
person who inflicted the wound was responsible for the result
thereof.

The crime committed by appellant Ural was murder by means

of fire (incendio) (Par. 3, Art. 248, Revised Penal Code; People vs.
Masin, 64 Phil. 757; U.S. vs. Burns, 41 Phil. 418, 432, 440).3

The trial court correctly held that the accused took advantage
of his public position (Par. 1, Art. 14, Revised Penal Code). He
could not have maltreated Napola if he was not a policeman on
guard duty. Because of his position, he had access to the cell
where Napola was confined. The prisoner was under his custody.
"The policeman, who taking advantage of his public position
maltreats a private citizen, merits no judicial leniency. The methods
sanctioned by medieval practice are surely not appropriate for an
enlightened democratic civilization. While the law protects the
police officer in the proper discharge of his duties, it must at the
same time just as effectively protect the individual from the abuse
of the police." U.S. vs. Pabalan, 37 Phil. 352).

But the trial court failed to appreciate the mitigating

circumstance "that the offender had no intention to commit so
grave a wrong as that committed" (Par. 3, Art. 13, Revised
Penal Code). It is manifest from the proven facts that appellant
Ural had no intent to kill Napola. His design was only to maltreat
him may be because in his drunken condition he was making
a nuisance of himself inside the detention cell. When Ural
realized the fearful consequences of his felonious act, he
allowed Napola to secure medical treatment at the municipal
dispensary.

Lack of intent to commit so grave a wrong offsets the generic

aggravating, circumstance of abuse of his official position.
The trial court properly imposed the penalty of reclusion perpetua
which is the medium period of the penalty for murder (Arts. 64[4]
and 248, Revised Penal Code).

Finding no error in the trial court's judgment, the same is affirmed

with costs against the appellant.
CRIM LAW FINALS I ACJUCO 5
4. SUFFICIENT PROVOCATION
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
CHRISTOPHER CAA LEONOR, accused-appellant.
DECISION
DAVIDE, JR., C.J.:
In the decision [1] of 22 March 1996 in Criminal Case No. 95-212,
the Regional Trial Court of Paraaque, Branch 274, found accused-
appellant Christopher Caa Leonor guilty beyond reasonable doubt
of the crime of robbery with homicide and sentenced him to suffer
the penalty of death and to pay the heirs of the victim P50,000 as
death indemnity; P44,318 as actual damages; P2 million as moral
damages; and P50,000 as attorneys fees.
CHRISTOPHER was charged in an information [2] whose
accusatory portion reads as follows:
That on or about the 15th day of May 1995, in the Municipality of
Paranaque, Metro Manila, Philippines and within the jurisdiction of
this Honorable Court, the above-named accused, with intent to
gain and against the will of complainant Ma. Teresa Tarlengco and
by means of force, violence and intimidation employed upon the
person of said complainant did then and there willfully, unlawfully
and feloniously divest her cash money worth P900.00 and
Titus wrist watch valued at an undetermined amount,
belonging to said Ma. Teresa Tarlengco, to the damage and
prejudice of the latter, in the aforementioned amount; that on the
occasion of the said Robbery, the above-named accused, with
intent to kill, without justifiable reason, did then and there willfully,
unlawfully and feloniously attack, assault and stab said Ma.
Teresa Tarlengco, thereby inflicting upon the latter serious
stab wounds which caused her death.
At his arraignment on 14 June 1995, CHRISTOPHER entered a
plea of not guilty .[3]
It is undisputed that on 15 May 1995 at the Hermanos Building in
General Santos Avenue, Bicutan Extension, Paraaque City, at
around 11:30 a.m., CHRISTOPHER stabbed dentist Dr. Maria
Teresa Tarlengco, which wound ultimately led to her death. That
much is admitted by CHRISTOPHER. The prosecution and the
defense differ, however, in the circumstances surrounding the
incident.
The prosecution had as witnesses Reynaldo Baquilod, SPO1 Luis
F. Galeno, PO3 Mateo Interia, Dr. Ravell Ronald Baluyot, Dr.
Edgardo de Guzman, Dr. Paul Pepa, Beverly Vidanes, Dr. John
Enrique Franco, Fernando Tarlengco, Geraldine Tarlengco, Joseph
Sumalbar, and Asst. Public Prosecutor Elizabeth Yu Guray. The
defense presented CHRISTOPHER, Leopoldo Leonor Leonidas,
Dr. Alfredo Besa, Renato Leonor and Alexander Pagubasan.
The Office of the Solicitor General partly summarized the evidence
for the prosecution as follows:
In the morning of May 15, 1995, Dr. Maria Teresa Tarlengco, a
dentist by profession, was at her clinic at the third floor of the
Hermanos Building, Bicutan, Paraaque, Metro Manila, when a man
entered and inquired about the cost of tooth extraction. After Dr.
Tarlengco quoted her professional fee, the man, who was later on
identified as Christopher Leonor, said that he would come back
and then left in a hurry. Minutes later, Leonor came back [,] and Dr.
Tarlengco told him to take a seat and wait. Dr. Tarlengco was
preparing her dental instruments when Leonor barged in and
demanded money. Dr. Tarlengco told Leonor that her money [was]
on the table. On hearing this, Leonor stabbed Dr. Tarlengco,
grabbed her watch and ran away. Dr. Tarlengco struggled out of
the clinic and saw the man running out of the building, Dr.
Tarlengco shouted for help.
vs. Reynaldo Baquilod, building security guard, heard Dr. Tarlengco
shouting, Tulungan ninyo ako, sinaksak ako ng taong iyon.
Baquilod noticed that Dr. Tarlengco was referring to the man
running out of the building, coming from upstairs. Baquilod chased
Leonor up to Daang Hari Street where he was joined by traffic
policeman Luis Galeno who was alerted by people running after a
person with bloodied shirt. When Galeno and Baquilod caught up
with Leonor, Baquilod grabbed Leonors hand and took therefrom a
Titus wristwatch and P900 cash. When queried, Leonor readily
answered, Sir, hindi ko naman gusto po ito. Ginawa ko lang ito
dahil kailangan ng pamilya ko. Leonor was brought to the
Paranaque Police Block Station, PO3 Interia who was instructed to
investigate proceeded to Dr. Tarlengcos clinic, where they saw,
among other[ ] [things], a bloodied balisong (fan knife) at the
ground floor of the Hermanos building. Baquilod turned over the
watch and money he took from Leonor to Interia. Thereafter,
Galeno and Interia returned to the police station where they were
interrogated.
Dr. Tarlengco was brought to the South Super Highway Medical
Center where she underwent an emergency operation for a stab
wound on her chest. After the operation, Dr. Tarlengcos father,
with the doctors’ permission, was allowed to talk to his
daughter inside the operating room. Although Dr. Tarlengco was
gasping for breath, she spoke to her father, viz:
Q: So were you able to talk with your daughter while in the
Operating Room? What did she say, if any, Mr. Tarlengco?
A: She said that this man pretended to be a patient.
Q: And what else did she say?
A: He asked her how much would it cost to pull a tooth and then
she said, Dad, when I quoted my price, he said that he would
come back and left in a hurry.
Q: What else did she say, if any, Mr. Tarlengco?
A: After a minute, he came back, I told him to wait, to sit down first
at my Waiting Area because I [had] to still prepare the instruments
needed.
Q: Then, what happened after that?
A: She said, while I was busy preparing my instrument, Dad, this
man barged in. He demanded for my money. I told him it [was] on
my table. And after telling that, Dad, he stabbed me and then he
grabbed my watch and he [ran] away and she said, I struggled
Dad, to come out of the clinic and when I was on the porch, I saw
this man coming [sic] out of the building. I shouted for help, I said
Saklolo, saklolo, sinaksak ako ng taong iyan. Hulihin ninyo.
Q: Then what else did she say after she narrated to you that
incident, Mr. Tarlengco?
A: After that, in tears, she said that Dad, I dont know, why inspite of
getting my money this man stabbed me and I was numbed at that
point of time, I [could not] talk anymore, I [could not] tell anything to
her anymore, I just combed her hair with my fingers.
CRIM LAW FINALS I ACJUCO 6
Thereafter, Dr. Tarlengco was brought to a private room where she
subsequently died.
Dr. Ronaldo Baluyot, the NBI Medico-legal Officer who conducted
the post-mortem examination of the deceased, testified that
Tarlengcos stab wound on the chest could have been caused
by single bladed fan knife.
Geraldine Tarlengco, who stayed with her sister Dr. Tarlengco
while reviewing for the BAR Examination, owned a Titus watch
similar to that of her sister. Both watches were given to them by
another sister Cecille. On the morning of May 15, 1995, Geraldine
saw Dr. Tarlengco strap the watch on her wrist. Geraldine,
likewise, saw her sister, Dr. Tarlengco, place in her wallet one 500-
peso bill and four 100-peso bills, after showing the same to
Geraldine, who earlier was teasing her sister, Dr. Tarlengco, that
the reason why she did not buy the dress she wanted to buy at
Cinderellas was because she had no money. If only to prove her
sister Geraldine wrong, Dr. Tarlengco showed her money which
she took from her wallet.[4]
Additionally, Dr. John Enrique Franco, a friend of the victim,
testified that he got to talk with Dr. Tarlengco at the hospital. He
asked Dr. Tarlengco what happened, and she answered that a
man posing as a patient held her up and stabbed her.[5]
Joseph B. Sumalbar, Dr. Tarlengcos fiance, testified that when he
learned about his fiancees killing, he immediately went to the crime
scene and, thereafter, to the Block 7 police station where he
confronted the suspected killer, Christopher. Sumalbar recalled his
conversation with the latter, thus:
Q: And what happened after that, when you proceeded to the cell
of this suspect?
A: I found this man who was half naked from the waist up. I found
this man without any shirt on and he was sitting at the corner and
he was trying to avoid me and I asked him, Bakit mo ginawa iyon?
Sabi niya, hindi ko po naman gusto. Kailangan ko lamang ang
pera.
Q: When you confronted the accused at Block 7, what else did he
say, if any?
A: While I was shouting at him, Hinold-up mo na, sinaksak mo pa.
Bakit mo ginawa iyon? Hindi ko po naman gusto iyon, mahuhuli
na po ako, sabi niya. Mahuhuli na po ako kaya ginawa ko iyon.
Q: Then what else did he say when you confronted him, if any?
A: And he told me that he needed the money.[6]
SPO3 Mateo Interia testified that on 16 May 1995, he took the
statement of Dr. Tarlengcos father and executed a Referral [7] to
the Provincial Prosecutor of Rizal for Christopher’s inquest. Interia
reported in the referral that CHRISTOPHER was being held for
robbery with homicide but forgot to state the property stolen from
Dr. Tarlengco. After Mr. Tarlengco reminded Interia of the stolen
items, the latter intercalated into the referral a reference to P900
and a Titus wristwatch forming part of the evidence against
CHRISTOPHER. [8]
Fernando Tarlengco, father of the victim, described the impact of
her daughters death, viz.:
Q: In connection with the death of your daughter, Mr. Tarlengco,
did your family incur any expenses?
A: Not just expenses but more on the agony, the tribulations we
are having up to this time. You know, up to this time, we kept on
weeping. My father, the grandfather of my daughter, was shocked
and in anguish, he also succumbed to death in less than two
months, because of what this evil person [had] done to us. My
work was affected. My wife’s work is affected. There are times
when we are at home, we dont know what to do anymore. We are
in total misery. I dont know why this was done to us by the devil
deeds of this person has done to us [sic].[9]
In relation to Dr. Tarlengcos death, her family spent P8,718 for
hospital expenses; about P2,500 to P3,500 charged by Funeraria
Malaya where she was brought; P22,500 for her casket; P8,250
paid to Manila Memorial, Inc.; P5,000 for the masses held for Dr.
Tarlengco; and about P10,000 for the food served to the guests at
Dr. Tarlengcos wake.[10]
CHRISTOPHER, on the other hand, testified that on 15 May 1995,
at about 6:00 a.m., he left his town Calauag, Quezon, and boarded
a Jam Transit bus bound for Manila, with P800 and a fan knife in
his pocket. He was to fetch his family for the town fiesta to be held
on 25 May 1995. His head and two of his molar teeth were then
aching. He alighted at Alabang and took a bus bound for Bicutan
Extension.[11]
Upon reaching Bicutan Extension, he looked for a dentist to have
his aching teeth pulled. He found Dr. Tarlengcos dental clinic at the
third floor of a certain building in General Santos Avenue. He
asked Dr. Tarlengco how much an extraction cost, and was told
that the fee was P150 per tooth. CHRISTOPHER negotiated a
charge of P100 per tooth, but Dr. Tarlengco rejected the offer.
CHRISTOPHER then proceeded to look for another dentist, but
before he could make his way out of the clinic, Dr. Tarlengco
stopped him and agreed to charge P100 per extraction.
CHRISTOPHER was made to sit on the dental chair as
Dr.Tarlengco prepared the instruments for the extraction. Just as
she was about to inject anesthesia, she remarked that she
changed her mind and would charge P150 per tooth pulled.
CHRISTOPHER pushed away Dr. Tarlengcos hand, which
angered her. She castigated and cursed CHRISTOPHER for
asking for an extraction without being able to pay for it. [12]
As CHRISTOPHER was making his way out of the clinic, Dr.
Tarlengco cursed and pushed him, at which moment he
blacked out. [13] He then sensed that the dentist was in pain, and
he saw blood spurting. He realized that he had stabbed the
dentist. In shock, CHRISTOPHER stepped back, lost the grip on
his fan knife, and ran out of the clinic and out of the building. When
he looked back at the clinic, he saw Dr. Tarlengco shouting for
help. A security guard, with his shotgun aimed at CHRISTOPHER,
ran after the latter. [14]
CHRISTOPHER ran to where there were many people. Then he
came across Police Officer Galeno, who grabbed him by the hand
and asked what happened. He replied, Sir, nakadisgrasya ako.
[15] Galeno warded off the pursuing security guard who insisted on
apprehending CHRISTOPHER. Galeno brought CHRISTOPHER
to Block 7, Paraaque Police Station, and later, to the Police
Headquarters along the Coastal Road in Paraaque. Four
policemen, including PO3 Interia, took turns in mauling and kicking
him, and one policeman even took money from his wallet. Also, his
clothes were confiscated. [16]
During the investigation, CHRISTOPHER admitted that he had
stabbed Dr. Tarlengco, but denied that he had taken P900 and a
Titus wristwatch from the victim. He was surprised when later,
he was informed by Assistant Public Prosecutor Elizabeth Yu
Guray that he would be charged with Robbery with homicide, not
homicide only. [17]
Leopoldo Leonor Leonidas, Christopher’s uncle, revealed that at
about noon of 15 May 1995, while he was at home, he received a
telephone call from CHRISTOPHER saying that he had stabbed
someone. When he asked CHRISTOPHER why he stabbed
CRIM LAW FINALS I ACJUCO 7
someone the latter answered, Aburido ako, Kuya Ding, aburido
ako (I am troubled, Kuya Ding, I am troubled).[18]
Renato Leonor, Christopher’s father, testified that he went to see
his son at his detention cell but could hardly recognize him
because he was bloodied. He remembered that CHRISTOPHER
complained of toothache before he left for Manila. [19]
Dr. Alfredo Besa, a dentist, examined CHRISTOPHER three
hours before the former took the stand. Unassisted by any dental
aid or nurse, he determined that two of CHRISTOPHERs teeth
were due for extraction [20] and, at the condition they were in,
were probably aching as early as a year before. Citing his
experience, Dr. Besa claimed that people complaining of
tootache are usually irritable, although he admitted that none
of his patients complaining from a tootache has ever killed a
person or even brought a fan knife to his clinic. In fact, he
never heard of any patient with a toothache who killed a dentist.
He recalled one instance when a patient boxed him after he
unintentionally hurt the patient while pulling a tooth.
These were the evidence before the trial court which merited
Christopher’s conviction. CHRISTOPHER urges us to modify the
judgment by (1) convicting him of the crime of homicide, and
not of robbery with homicide, and (2) appreciating in his favor
the mitigating circumstances of lack of intent to commit so
grave a wrong as that committed, sufficient provocation,
passion and obfuscation, voluntary surrender, and voluntary
confession.
CHRISTOPHER claims that the testimonies of the prosecution
witnesses are fraught with inconsistencies and contradictions, and
are therefore obvious concoctions and manufactured evidence. He
points out that Baquilod failed to mention in his sworn statement,
given to the police immediately after the incident, that he retrieved
a Titus wristwatch and P900 worth of peso bills from
CHRISTOPHER. Baquilod likewise testified that Dr. Tarlengco
shouted for help because she was stabbed; she made no mention
of having been robbed. Then, too, SPO1 Galeno stated in his
sworn statement that Dr. Tarlengco was only stabbed.
CHRISTOPHER contends further that the testimonies of Baquilod,
Galeno, Interia, Sumalbar, and Yu Guray that he admitted to them
on separate occasions his commission of the offense charged are
inadmissible because the admission was not in writing, was not
made with the assistance of a counsel, and was not preceded by a
warning as to the consequences of the admission. In any event,
their testimonies are hearsay evidence. Additionally, he stresses
the possible bias of Yu Guray considering that she caused the
filing against him of the information for robbery with homicide.
In the Appellees Brief, the Solicitor General refutes Christopher’s
claims, asserting that the robbery was duly and satisfactorily
established by the dying declaration of Dr. Tarlengco to her father,
corroborated by the testimonies of Baquilod and Galeno. That Dr.
Tarlengco failed to exclaim that she was robbed when she shouted
for help from her clinics balcony is of no moment, since she later
told Dr. Franco and her father of the complete events that
transpired. Galenos failure to mention in his sworn statement that
money and a wristwatch were retrieved from CHRISTOPHER does
not negate his claim to that effect, because he later stated that fact
in his testimony. The settled rule is that testimonies in open
court are superior to affidavits taken ex parte. That Interia
inserted the stolen items in the Police Referral does not diminish
the truth of the allegation of robbery, since it appears that the
intercalation was intended to make the Referral accurate.
The core issues raised involve the credibility of witnesses. One of
the highly revered dicta in our jurisdiction is that this Court will not
interfere with the judgment of the trial court in passing on the
credibility of opposing witnesses unless there appears in the
record some facts or circumstances of weight and influence that
have been overlooked which, if considered, will affect the result of
the case. The reason therefor is founded on practical and empirical
considerations. The trial judge is in a better position to decide
questions of credibility, since he has personally heard the
witnesses and observed their deportment and manner of testifying.
[21] Nevertheless, in view of the gravity of the charge and the
penalty imposed, we spared no effort to meticulously review the
evidence to determine whether CHRISTOPHER had indeed
committed the offense charged and the prosecutions evidence
proved it beyond reasonable doubt.
CHRISTOPHER admitted that he stabbed Dr. Tarlengco. The
burden of evidence, therefore, shifted to him; he had to prove a
justifying [22] or exempting [23]circumstance to avoid criminal
liability. He miserably failed to do so.
The remaining factual issue is whether CHRISTOPHER killed Dr.
Tarlengco by reason or on the occasion of a robbery [24] with
the use of violence against or intimidation of a person. One
could be convicted of robbery with homicide only if the robbery
itself was proved as conclusively as any other essential element of
the crime. The taking with intent to gain of personal property
belonging to another, by means of violence against or intimidation
of any person or by using force upon things, constitutes robbery.
[25]
Geraldine Tarlengco and Joseph Sumalbar identified the items
recovered from CHRISTOPHER as belonging to Dr. Tarlengco.
These testimonies indicate that CHRISTOPHER stole personal
property belonging to Dr. Tarlengco, consistent with the disputable
presumption that a person found in possession of a thing taken in
the doing of a recent wrongful act is the taker and the doer of the
whole act. [26] While CHRISTOPHER denied that Dr. Tarlengcos
watch and money were recovered from him, the independent and
corroborative testimonies of police officer Galeno and guard
Baquilod prove otherwise. The trial court found the testimonies of
these two witnesses more credible, and we see no reason to
depart from its conclusion. CHRISTOPHER also pointed out that
the intercalation of stolen items in Interias referral report to the
Prosecutor indicated the fabrication of robbery charges against
him. But the intercalation was sufficiently explained as an honest
mistake, especially considering that Interia had specified in the
report, in an entry appearing before the intercalation, that the
charge against CHRISTOPHER was robbery with homicide.
It is undisputable then that CHRISTOPHER took Dr. Tarlengcos
belongings. The unexplained possession of stolen articles gives
rise to a presumption of theft unless it is proved that the owner of
the articles was deprived of her possessions by violence or
intimidation, in which case, the presumption becomes one of
robbery.[27] The prosecution proved in this case that there was
violence and intimidation in the taking of Dr. Tarlengcos property.
Most crucial for the prosecution is the testimony of Mr. Fernando
Tarlengco, the victims father, because he stated the most
incriminating piece of evidence the dying declaration of Dr.
Tarlengco. While, generally, a witness can testify only to those
facts which are derived from his own perception,[28] a recognized
exception thereto is the reportage in open court of the declaration
of a dying person made under the consciousness of an impending
death where that persons death is the subject of inquiry in the
case.[29] To be admissible, a dying declaration must (1) refer
to the cause and circumstances surrounding the declarants
death; (2) be made under the consciousness of an impending
death; (3) be made freely and voluntarily without coercion or
suggestion of improper influence; (4) be offered in a criminal
case in which the death of the declarant is the subject of
inquiry; and (5) the declarant must have been competent to
testify as a witness had he been called upon to testify.
CRIM LAW FINALS I ACJUCO 8
Dr. Tarlengcos dying declaration complied with the above
requisites. She talked about the incident which led to her condition.
The declaration was a first-hand account of the incident, bereft of
opinion or conjecture. The account was made in a criminal case
where her death was part of the subject of inquiry. And, most
important, she was convinced that she was about to die; thus:
Atty. Revilla:
Q Could you tell this Court what was her condition when you saw
her inside the operating room?
Witness Tarlengco:
A I asked her how she was and she said, Dad, I have a feeling I
can no longer endure this.
Atty. Revilla:
Q So, what else happened in the operating room while you were
talking to her, Mr. Tarlengco?
A I told her to fight for her life. I asked her to open her eyes, keep
herself awake, and in my desire to help her awake, I asked her
what happened.
Atty. Revilla:
Q Then what else happened while you were in the operating room,
after that, Mr. Tarlengco?
Witness Tarlengco:
A On that condition, she was really very very cold and gasping and
complaining of pain and gasping for breath.[30]
Dr. Tarlengco narrated to her father that a man who pretended to
be her patient demanded money from her. After she surrendered
her money to him, the latter stabbed her and took her watch as
she lay injured.
The dying declaration thus established not only that a robbery was
committed, there being violence and intimidation against Dr.
Tarlengco, but that homicide was perpetrated on the occasion of
said robbery.
Lastly, we find no mitigating circumstance in this case.
CHRISTOPHER claims that he did not intend to commit so grave a
wrong as the act committed; that there was sufficient provocation
by the offended party immediately preceding the offense; that he
acted upon an impulse so powerful as to have produced in him
passion and obfuscation; that he voluntarily surrendered to a
person in authority; and that he voluntarily confessed having
committed homicide.
Lack of intent to commit so grave a wrong does not mitigate in
homicide cases where the accused used a deadly weapon in
inflicting mortal wounds on vital organs of the victim,[31] as in this
case.
The provocation sufficient to mitigate an offense must be
proportionate to the gravity of the retaliatory act.[32] The events
which led to the stabbing were described by CHRISTOPHER as
follows:
Q Mr. Leonor, you said, while she was about to inject anaesthesia,
you said Dra. Tarlengco changed the price from P100.00 to
P150.00. Then you parried her hand. Is that correct?
A Opo. Tinabig ko po. [Yes, sir. I pushed it aside.]
Q What hand of Dra. Tarlengco did you parry?
A The one handling the rounded instrument. Right hand, Sir.
Q When you parried her right hand, you were already sitting at the
dental chair? Right?
A Opo.
Q After you parried the hand of Dra. Tarlengco, she cursed you,
right?
A No, sir. I just said why did you change the price? and I stood up.
That was the time she cursed me.
Q When she cursed you, did Dra. Tarlengco hit you with an
instrument?
A No, Sir. She just got mad.
Q Did she slap you on your face?
A No Sir. She just pushed me.
Q And she did not box you anywhere in any portion of your body?
A No, Sir.
Q And she likewise did not kick you in any part of your body?
A She just told me bad words.[33]
CHRISTOPHER is thus claiming that a push and bad words justify
retaliation with a knife. Such claim is undeserving of belief and
does not entitle CHRISTOPHER to the benefit of the mitigating
circumstance prior provocation by the offended party.
CHRISTOPHER could not have been provoked by passion or
obfuscation as, according to him, he momentarily blacked out and
instantly found his fan knife embedded in Dr. Tarlengcos chest. To
be blinded by passion and obfuscation is to lose self-control,[34]
not consciousness. Moreover, courts cannot appreciate passion
and obfuscation unless there is a clear showing that there were
causes naturally tending to produce such powerful excitement as
to deprive the accused of reason and self-control.[35] As we
discussed earlier, the events leading to the stabbing precluded any
natural tendency to produce a powerful excitement in
CHRISTOPHER.
CHRISTOPHER did not voluntarily surrender either to a person in
authority or to any other person. While he was being pursued by
Security Guard Baquilod, he intentionally went to where there were
many people, presumably to confuse Baquilod. Fortunately, Police
Officer Galeno was able to grab him by the hand and prevented
him from further eluding justice. There is nothing in the record
which can lead us to conclude that he surrendered to anyone.
Neither was there voluntary confession in the instant case. The
mitigating circumstance contemplated by law is a plea of guilty
made spontaneously and unconditionally in open court before the
presentation of evidence for the prosecution.[36] CHRISTOPHER
made no such plea.
What remains to be resolved is the penalty to be imposed. The
penalty for robbery with homicide is reclusion perpetua to death.
[37] There being no evidence of aggravating or mitigating
circumstance against or in favor of CHRISTOPHER, the lower of
the two indivisible penalties shall be imposed,[38] without the
benefit of the Indeterminate Sentence Law.[39] We likewise
believe that the awards in favor of Dr. Tarlengcos family of moral
CRIM LAW FINALS I ACJUCO 9
damages of P2 million and attorneys fees of P500,000 are
excessive. We reduce them to P50,000 and P25,000, respectively.
WHEREFORE, the decision of Branch 274 of the Regional Trial
Court of Paraaque in Criminal Case No. 95-212 is hereby
MODIFIED. As modified, accused-appellant CHRISTOPHER CAA
LEONOR is found guilty beyond reasonable doubt as principal of
the crime of robbery with homicide, and is hereby sentenced to
suffer the penalty of reclusion perpetua and to pay the heirs of the
victim, Dr. Teresa Tarlengco, P50,000 as indemnity for death;
P44,318 as actual damages; P50,000 as moral damages; and
P25,000 as attorneys fees, without subsidiary imprisonment in
case of insolvency.
Costs against accused-appellant.
SO ORDERED.
5. IMMEDIATE VINDICATION OF A GRAVE
OFFENSE
G.R. No. L-12883 November 26, 1917
THE UNITED STATES, plaintiff-appellee,
vs.
CLEMENTE AMPAR, defendant-appellant.
Filemon A. Cosio for appellant.
Acting Attorney-General Paredes for appellee.
MALCOLM, J.:
A fiesta was in progress in the barrio of Magbaboy, municipality of
San Carlos, Province of Occidental Negros. Roast pig was being
served. The accused Clemente Ampar, a man of three score and
ten, proceeded to the kitchen and asked Modesto Patobo for some
of the delicacy. Patobo's answer was; "There is no more. Come
here and I will make roast pig of you." The effect of this on the
accused as explained by him in his confession was, "Why was he
doing like that, I am not a child." With this as the provocation, a
little later while the said Modesto Patobo was squatting down, the
accused came up behind him and struck him on the head with an
ax, causing death the following day.
As the case turns entirely on the credibility of witnesses, we should
of course not interfere with the findings of the trial court. In
ascertaining the penalty, the court, naturally, took into
consideration the qualifying circumstance of alevosia. The court,
however, gave the accused the benefit of a mitigating
circumstance which on cursory examination would not appear to
be justified. This mitigating circumstance was that the act was
committed in the immediate vindication of a grave offense to the
one committing the felony.
The authorities give us little assistance in arriving at a conclusion
as to whether this circumstance was rightly applied. That there
was immediate vindication of whatever one may term the remarks
of Patobo to the accused is admitted. Whether these remarks can
properly be classed as "a grave offense" is more uncertain. The
Supreme court of Spain has held the words "gato que arañaba a
todo el mundo," "landrones," and "era tonto, como toda su familia"
as not sufficient to justify a finding of this mitigating circumstance.
(Decisions of January 4, 1876; May 17, 1877; May 13, 1886.) But
the same court has held the words "tan landron eres tu como tu
padre" to be a grave offense. (Decision of October 22, 1894.) We
consider that these authorities hardly put the facts of the present
case in the proper light. The offense which the defendant was
endeavoring to vindicate would to the average person be
considered as a mere trifle. But to this defendant, an old man, it
evidently was a serious matter to be made the butt of a joke in the
presence of so many guests. Hence, it is believed that the lower
court very properly gave defendant the benefit of a mitigating
circumstance, and correctly sentenced him to the minimum degree
of the penalty provided for the crime of murder.
Judgment of the trial court sentencing the defendant and appellant
to seventeen years four months and one day of cadena temporal,
with the accessory penalties provided by law, to indemnify the
heirs of the deceased, Modesto Patobo, in the amount of one
thousand pesos, and to pay the costs is affirmed, with the costs of
this instance against the appellant. So ordered.
G.R. No. 96444 June 23, 1992
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
LEANDRO PAJARES y FLORENTINO, accused-appellant.
PARAS, J.:
This is an appeal from the decision * of the Regional Trial Court,
NCJR, Branch VIII, Manila dated October 25, 1990 in Criminal
Case No. 85-40579 entitled "People of the Philippines v. Leandro
Pajares y Florentino" convicting herein appellant Pajares of the
crime of Murder.
Herein appellant was charged with the aforementioned crime in an
Information which reads as follows:
That on or about the 11th day of October, 1985, at night time,
purposely sought to insure and better accomplish his criminal
design, in the City of Manila. Philippines, the said accused,
conspiring and confederating together with five (5) others whose
true names, real Identities, and present whereabouts are still
unknown and helping one another, did then and there willfully,
unlawfully and feloniously, with intent to kill, evident premeditation,
and treachery, attack, assault. and use personal violence upon one
DIOSDADO VIOJAN Y SABAYAN, by then and there mauling him
and hitting him with a baseball bat at the back of the head, a vital
part of the body, thereby inflicting upon the said DIOSDADO
VIOJAN Y SABAYAN a club wound on the head which was the
direct and immediate cause of his death.
Contrary to law. (Original Records of Criminal Case No, 85-40579,
p. 1)
He was likewise charged with the crime of Frustrated Homicide in
an Information which reads as follows:
That on or about the 11th day of October, 1985, at night time,
purposely sought to insure and better accomplish his criminal
design, in the City of Manila, Philippines, the said accused,
conspiring and confederating together with five (5) others whose
true names, real identities, and present whereabouts are still
unknown, and helping one another, with intent to kill, did then and
there willfully, unlawfully and feloniously attack, assault and use
personal violence upon one RENATO PEREZ Y RUIDERA, by
mauling and hitting him with a baseball bat at the back, a vital part
of the body, thereby inflicting upon him a club wound at the back
which is necessarily mortal and fatal, thus performing all the acts
of execution which would have produced the crime of homicide, as
a consequence, but nevertheless did not produce it by reason of
causes independent of the will of the accused, that is, because of
the timely and able medical attendance rendered upon the said
RENATO PEREZ RUIDERA which prevented his death.
CRIM LAW FINALS I ACJUCO 10
Contrary to law (Original Records of Criminal Case No. 85-40580,
p. 1)
Appellant Pajares pleaded not guilty to both charges (Original
Records of Criminal Case No. 85-40579, p. 5; Original Records of
Criminal Case No. 85-40580, p. 8). Upon the petition of herein
appellant that the two (2) cases be consolidated, a joint trial
ensued.
The prosecution presented Renato R. Perez, Cpl. Benigno Dong,
Salud Manguba, Pat. Conrado Bustillos, Dr. Norman Torres, Dr.
Prospero Cabanayan, Rosita Viojan and Arlene Viojan as
witnesses while only appellant Leandro Pajares took the witness
stand for the defense.
Renato R. Perez, a resident of 1386-K Burgos St., Paco, Manila, is
the same Renato Perez who is the victim in Criminal Case No. 85-
40580 for Frustrated Homicide. He testified that at about 11:30
p.m. on October 11, 1985, he and the deceased Diosdado Viojan
were on their way to a store located at Gomez St., Paco, Manila to
buy something. They were walking abreast with each other, the
deceased was at his right side and was a bit ahead of him, when
appellant Pajares suddenly appeared from behind and hit Viojan
with a baseball bat at the back of his head. The latter ran a short
distance and fell down near the store of one Alex Blas. When
Perez tried to help Viojan. he, too, was attacked by Pajares with
the baseball bat hitting him at the back below the left shoulder. He
then grappled with the appellant for the possession of the baseball
bat but the latter's companions, namely: Rudy Dokling, Popoy,
Inggo and Lauro Duado mauled him until he lost consciousness.
He was brought to the Philippine General Hospital by Eugene
Panibit and Joselito Perez where he was treated for the injuries he
sustained (TSN, Hearing of January 7, 1986, pp. 4-23). He
identified in court the baseball bat used by Pajares (TSN, Hearing
of September 16, 1986, p. 36).
On cross examination, he averred that he has known appellant
Pajares for less than a year and that although they both live in
Zone 89, he and the deceased belonged to a group which is an
adversary of the group of the accused (Ibid., pp. 39-41).
Cpl. Benigno Dong, of the Zamora Police Department Station No.
6, WPD, testified that he was on duty on October 12, 1985 when
one Napoleon Gabawa sought their assistance regarding a killing
incident that happened in Gomez Street, Paco, Manila. They went
to the house of appellant Leandro Pajares at 1453 Gomez St.,
Paco, Manila and invited the latter and his brother to the station for
questioning regarding the aforementioned incident. Pajares
verbally admitted his participation in the incident (TSN, Hearing of
March 11, 1986, p. 26). The incident was registered in the Police
Blotter Entry (Exhibits "A" to "A-3", Original Records of Criminal
Case No. 85-40579. pp. 30-33)
On cross examination, he admitted that he placed appellant
Pajares under arrest after he verbally admitted that he was
responsible for the death of Diosdado Viojan, but the booking
sheet and arrest report has not been accomplished yet (TSN,
Hearing of March 11, 1986, p 27).
Salud Manguba, Forensic Chemist of the National, Bureau of
Investigation, testified that she examined a baseball bat for the
presence of blood upon the written request of Pat. Conrado
Bustillos (Exhibit "C-1", Original Records of Criminal Case No. 85-
40579, p. 69). In connection with the study she made, she
submitted Biology Report No. B-85-1342 (Exhibit "C". Original
Records of Criminal Case No. 85-40579, p. 68) that shows the
absence of blood on the baseball bat (TSN, Hearing of June 23,
1986, pp. 30-32).
Pat. Conrado G. Bustillos, testified that relative to a telephone call
he received from the Philippine General Hospital on October 12
1985 he went to the morgue of the said hospital to investigate a
dead on arrival case of one Diosdado Viojan. A close examination
of the body of the latter showed that he suffered a fracture at the
back of the skull. Thereafter, he proceeded to the scene of the
crime to make an ocular inspection where he was informed that
there was another victim by the name Renato Perez. Pat. Bustillos
further testified that Renato Perez was investigated at the
Homicide Section and that the latter executed a sworn statement
(Exhibit "F" Original Records of Criminal Case No, 85-40579, p
208) in relation to the incident. In the same manner, Roberto
Pajares. brother of herein appellant was also investigated and who
also executed a sworn statement (Exhibit "G", Ibid., p. 219) The
alleged murder weapon, a baseball bat, was turned over to him by
Cpl. Ben Macalindog (TSN, November 18, 1986, p. 46).
Dr. Norman Torres, a resident physician at the Philippine General
Hospital, testified that on October 12, 1985, a certain Diosdado
Viojan was brought to the emergency room of the Philippine
General Hospital for head injury, left occipital region. The victim
was in critical condition necessitating immediate surgery. He did
not personally attend the operation but learned that the victim died
while undergoing the surgery. Witness further averred that the
injury could have been caused by a blunt instrument like a
baseball bat (TSN, Hearing of December 2, 1986, p. 46).
Dr. Prospero Cabanayan, Legal Officer of the National Bureau of
Investigation, testified that he conducted an autopsy on the body of
Diosdado Viojan and in connection therewith submitted Autopsy
Report No. N-85-2161 (Exhibit "L", Original Records on Criminal
Case No. 85-40579, p. 224) indicating that the cause of death was
"Hemorrhage, meningeal, severe, traumatic". He further testified
that a single forceful blow against the head using a blunt
instrument like a baseball bat could have caused the injury (TSN,
Hearing of June 15, 1987, pp. 58-60).
Rosita S. Viojan, mother of the deceased Diosdado Viojan,
testified that when her son died, she hired the services of Tree
Amigos Funeral Parlor for P12,000.00 as evidenced by Official
Receipt No. 10511 (Exhibits "P" and "Q", Original Records of
Criminal Case No. 85-40579, pp. 228-229) (TSN, Hearing of
February 23. 1988, p. 66).
Arlene Viojan, widow of Diosdado Viojan. testified that prior to the
incident her husband was working with PEMCO earning about
P500.00 a week. At the time of the incident, she was three (3)
months on the family way. She gave birth to a baby girl and it was
her parents-in-law who paid for the expenses during her delivery.
At the moment, she is living with her parents (TSN, Hearing of April
4, 1988, p. 67).
Appellant Leandro Pajares y Florentino denied the allegations of
the prosecution. He asserts that he knew the deceased Diosdado
Viojan by the name Dado, having met him once at the store, and
Renato Perez by the name Balat. At the time of the incident, he
was inside the store of Alex Blas with about eight (8) other People
watching television. Hence, he did not see who hit Diosdado
Viojan and Renato Perez. After the commotion, upon the advise of
Alex Blas, he went home and slept. At about 3:30 in the morning of
October 12, 1985, he was arrested inside their house. Without
asking any question, he went with the arresting officers to the
police station (TSN, Hearing of August 1, 1988, pp. 72-76).
At the police detachment, he was coerced to admit his participation
in the crime since a gun was poked at him. He identified his
signature at the Booking Sheet and Arrest Report (Exhibit "J",
Original Records of Criminal Case No 85-40579, p. 222) but
alleged that he signed the same without being allowed to read the
contents thereof without the assistance of counsel and while being
held at the collar at the back of his shirt. He likewise averred that
during investigation the investigating policemen molested him like
"pinipitik-pitik" his ears with rubber band or chopping his neck with
CRIM LAW FINALS I ACJUCO 11
karate chops (Ibid., pp. .77-78). He, however, admitted that even
after several days he did not complain about what were done to
him (Ibid., p. 128).
On cross examination, he testified that his house is about five (5)
houses away from the store of Alex Blas, the scene of the crime
(TSN, Hearing of August 22, 1983, pp. 90-91). He likewise denied
any knowledge about any quarrel between his brother, Roberto
Pajares and the deceased Diosdado Viojan (TSN, Hearing of
September 19, 1988, p. 108).
As aforementioned, the trial court rendered a decision on October
25, 1990, the dispositive portion of which reads:
WHEREFORE, in view of the foregoing considerations, judgment
is hereby rendered finding herein accused LEANDRO PAJARES y
FLORENTINO of 1433-B, Gomez St., Paco, Manila, GUILTY
beyond reasonable doubt of the charges against him, as follows:
CRIM. CASE NO. 85-40579:
The Court finds accused GUILTY beyond reasonable doubt of the
crime of Murder as defined and penalized by Art. 248, par, 1, Rev.
Penal Code, and there being no modifying circumstance to
consider, hereby sentences him to suffer imprisonment of
RECLUSION PERPETUA with the accessory penalties of the law;
to pay Arlene Viojan and her child the sum of: P30,000,00;
P12,000.00 as funeral expenses; P15,000.00 as moral damages;
and P10,000.00 as litigation expenses and attorney's fees; and
finally the costs of the suit.
CRIM. CASE NO. 85-40580:
The Court finds accused GUILTY beyond reasonable doubt of the
crime of Slight Physical Injuries as defined in par. 1, Art. 266 and
penalized by Art. 27, both of the Rev. Penal Code, hereby
sentencing him to an imprisonment of ONE (1) MONTH; and to
pay the cost of suit.
Done in Manila, this 25th day of October, 1990.
SO ORDERED. (RTC Decision, Rollo, p. 38)
Hence this appeal.
Appellant Pajares asserts that the trial court gravely erred in
imposing the penalty of reclusion perpetua upon him. He avers
that such a penalty is tantamount to a cruel, degrading or inhuman
punishment which is prohibited by the Constitution. Appellant
points out that hours before the clubbing incident, Roberto Pajares,
appellant's younger brother, was mauled by the group of Diosdado
Viojan as cited by the lower court referring to the entry in the
Police Blotter and the sworn statement of Roberto Pajares. The
mauling of the latter is a big insult and truly offending to the
appellant and his family. Hence, the clubbing of Diosdado Viojan
by herein appellant was a vindication of the grave offense
committed against his family. a mitigating circumstance under
paragraph 5 of Article 13 of the Revised Penal Code. Considering
further that the appellant was just nineteen (19) years old at the
time he committed the offense the penalty imposed by the court a
quo should have been seventeen (17) years, four (4) months and
one (1) day (Brief for the Appellant, Rollo, pp. 52-58).
The appeal is devoid of merit.
In convicting herein appellant of the crime of murder, qualified by
treachery, the trial court relied heavily on the testimony of
prosecution witness Renato Perez which it found to be credible.
According to the lower court, the latter "gave his account on what
was done to them by the accused and his companions in a simple,
candid, straightforward manner" (RTC Decision. Rollo, p. 36).
It is doctrinally entrenched that the evaluation of the testimony of
witnesses by the trial court is received on appeal with the highest
respect because it is the trial court that has the opportunity to
observe them on the stand and detect if they are telling the truth or
lying in their teeth (People v. Santito, Jr., G.R. No. 91628, August
22, 1991 [201 SCRA 87]). The appellate court can only read in
cold print the testimony of the witnesses which commonly is
translated from the local dialect into English. In the process of
converting into written form the statement of living human beings,
not only fine nuances but a world of meaning apparent to the judge
present, watching and listening, may escape the reader of the
written translated words (People v. Arroyo, G.R. No. 99258,
September 13, 1991 [201 SCRA 616]).
Appellant's sole defense is alibi. According to him, he was inside
the store of Alex Blas, watching television, when the incident
occurred, Alex Blas even advised him to go home so as not to be
involved in the incident. However, the latter was not presented to
corroborate appellant's testimony. Alibi is the weakest defense an
accused can concoct. In order to prosper, it must be so convincing
as to preclude any doubt that the accused could have been
physically present at the place of the crime or its vicinity at the time
of the commission (People v. Lacao, Sr., G.R. No. 94320,
September 4. 1991 (201 SCRA 317]). In the case at bar, appellant
was within the vicinity of the scene of the crime at the time of its
commission.
Furthermore, appellant was Positively identified by Renato Perez
as the perpetrator of the crime. In the face of the clear and positive
testimony of the prosecution witness regarding the participation of
the accused in the crime, the accused's alibi dwindles into
nothingness. The Positive identification of the accused by the
witness as the perpetrator of the crime cannot be overcome by the
mere denial of the accused. Such positive identification of the
accused that he killed the victim establishes the guilt of the
accused beyond moral certainty (People v Arroyo, supra).
The trial court correctly ruled that the crime was attended by
treachery. There is treachery, the law says, when the offender
adopts means, methods or forms in the execution of the felony
which ensure its commission without risk to himself arising from
the defense which the offended party might make (People v. Cuyo,
G.R. No. 76211, April 30, 1991 [196 SCRA 447]). As found by the
trial court, appellant Pajares hit Diosdado Viojan with a baseball
bat from behind without any warning thereby precluding any
possible retaliation from the victim.
Having established the guilt of herein appellant. the next question
is whether or not the mitigating circumstance of immediate
vindication of a grave offense can be appreciated in his favor.
While it may be true that appellant's brother Roberto Pajares was
mauled by the companions of the deceased at about 11:30 a.m. of
October 11, 1985 as show in the entry in the Police Blotter
(Exhibits "A" to "A-3", Original Records of Criminal Case No. 85-
40579. pp. 30-33) and by appellant's brother himself (Exhibits "G",
"Q" and "A" Nos. 7-9, Ibid., p. 219), it must be emphasized that
there is a lapse of about ten (10) hours between said incident and
the killing of Diosdado Viojan. Such interval of time was more than
sufficient to enable appellant to recover his serenity (People v.
Benito, G.R. No. L-32042, December 17, 1976 [74 SCRA 271]).
Hence, the mitigating circumstance of immediate vindication of a
grave offense cannot be appreciated in his favor.
IN VIEW OF THE FOREGOING, the decision appealed from is
AFFIRMED with modification that the indemnity is increased to
P50,000.00 in accordance with the policy of this Court on the
matter.
SO ORDERED.
CRIM LAW FINALS I ACJUCO 12
6. PASSION OR OBFUSCATION
G.R. No. 4971 September 23, 1909
THE UNITED STATES, plaintiff,
vs.
AUGUSTUS HICKS, defendant.
Office of the Solicitor-General Harvey for plaintiff.
Jose Robles Lahesa for defendant.
TORRES, J.:
For about five years, from September, 1902, to November, 1907,
Augustus Hicks, an Afro-American, and Agustina Sola, a Christian
Moro woman, illicitly lived together in the municipality of Parang,
Cotabato, Moro Province, until trouble arising between them in the
last-mentioned month of 1907, Agustina quitted Hick's house, and,
separation from him, went to live with her brother-in-law, Luis
Corrales. A few days later she contracted new relations with
another negro named Wallace Current, a corporal in the Army who
then went to live in the said house.
On the 21st of December following, at about 7:30 p. m., Augustus
Hicks together with a soldier named Lloyd Nickens called at said
house, and from the sala called out to his old mistress who was in
her room with Corporal Current, and after conversing with her in
the Moro dialect for a few minutes, asked the corporal to come out
of said room; in response thereto the corporal appeared at the
door of the room, and after a short conversation, Current
approached Hicks and they shook hands, when Hicks asked him
the following question: "Did I not tell you to leave this woman
alone?," to which Current replied: "That is all right, she told me that
she did not want to live with you any longer, but if she wishes, she
may quit me, and you can live with her." The accused then replied:
"God damn, I have made up my mind;" and as Corporal Current
saw that Hicks, when, he said this, was drawing a revolver from his
trousers' pocket, he caught him by the hand, but the latter,
snatching his hand roughly away, said: "Don't do that," whereupon
Current jumped into the room, hiding himself behind the partition,
just as Hicks drew his revolver and fired at Agustina Sola who was
close by in the sala of the house. The bullet struck her in the left
side of the breast; she fell to the ground, and died in a little more
than an hour later.
Upon hearing the shot Edward Robinson, who was also in the
house, went to render assistance and wrested the weapon from
the hand of the accused. The latter immediately fled from the
house and gave himself up to the chief of police of the town, H. L.
Martin, asking him to lock him up in jail; and, when a few minutes
later a policeman came running in and reported that Hicks had
fired a shot at Agustina, the said chief of police caused Hicks to be
arrested. The latter, when once in jail, threw eight revolver
cartridges out of the window; these were picked up by a policeman
who reported the occurrence and delivered the cartridges to his
chief.
In view of the foregoing the provincial fiscal on the 8th of February,
1908, filed a complaint with the Court of First Instance of said
province charging Augustus Hicks with the crime of murder.
Proceedings were instituted, the trial court, after hearing the
evidence adduced, entered judgment on the 10th of September of
the same year, sentencing the accused to the penalty of death, to
be executed according to the law, to indemnify the heirs of the
deceased in the sum of P1,000, and to pay the costs. The case
has been submitted to this court for review.
The above-stated facts, which have been fully proven in the
present case, constitute the crime of murder, defined and punished
by article 403 of the Penal Code, in that the woman Agustina Sola
met a violent death, with the qualifying circumstance of treachery
(alevosia), she being suddenly and roughly attacked and
unexpectedly fired upon with a 45-caliber revolver, at close, if not
point blank range, while the injured woman was unarmed and
unprepared, and at a time when she was listening to a
conversation, in which she was concerned, between her aggressor
and third person, and after usual and customary words had passed
between her and her aggressor. From all of the foregoing it is
logically inferred that means, manners, and forms were employed
in attack that directly and specially insured the consummation of
the crime without such risk to the author thereof as might have
been offered by the victim who, owing to the suddenness of the
attack, was doubtless unable to flee from the place where she was
standing, or even escape or divert the weapon.
The accused, Augustus Hicks, pleaded not guilty, but
notwithstanding his exculpatory allegations which were certainly
not borne out at the trial, the evidence in the case is absolutely at
variance therewith and conclusively establishes, beyond
peradventure of doubt, his culpability as the sole fully convicted
author of the violent and treacherous death of his former mistress,
Agustina Sola.
It is alleged by the accused that when he withdrew his hand from
that of Current, who had seized him, he fell backward but
managed to support himself on his two hands, and when he got up
again the said corporal threatened him with a revolver thrust into
his face; whereupon he also drew his revolver, just as Edward
Robinson caught him from behind, when his revolver went off, the
bullet striking the deceased.
This allegation appears to be at variance with the testimony of the
witnesses Wallace Current, Edward Robinson, Luis Corrales, and
Lloyd Nickens in their respective declaration, especially with that of
the second and third, who witnessed the actual firing of the shot by
the aggressor at the deceased, as shown by the fact that Robinson
immediately approached the accused in order to take his weapon
away from him which he succeeded in doing after a brief struggle,
whereupon the aggressor ran out of the house. Thus, the shot that
struck the deceased in the breast and caused her death was not
due to an accident but to a willful and premeditated act on the part
of the aggressor with intent to deprive the victim of her life.
In addition to the qualifying circumstance of treachery, as above
referred to, the presence of other aggravating circumstances, such
as premeditation, and the fact that the crime was committed in the
dwelling of the deceased should be taken into consideration. The
last-mentioned circumstances appears proven from the testimony
of several witnesses who were examined at the trial of the case.
CRIM LAW FINALS I ACJUCO 13

Inasmuch as in the present case the crime has already been

qualified as committed with treachery, the circumstance of
premeditation should only be considered as a merely generic one.
Premeditation is, however, manifest and evident by reason of the
open acts executed by the accused. According to the testimony of
Charles Gatchery and Eugenio R. Whited, Hicks asked leave from
the former to be absent from the canteen where he was working
on the morning of the day when the affray occurred, alleging that
his mind was unsettled and that he feared getting into trouble. It is
also shown by the fact that Whited, who was in Hicks' house about
noon upon the latter's invitation, and while both where drinking gin,
and while the revolver, the instrument of the crime, was lying on
the table on which were also several loaded cartridges, heard the
accused repeatedly say, referring to the deceased, that her time
had come, adding that he would rather see her dead than in the
arms of another man, and when the accused went to bed
apparently very much worried, and refusing to answer when called,
the witness left him. On the day after the crime the police found on
a table in the cuprit's house several loaded cartridges, a bottle of
oil and a piece of cloth used undoubtedly for cleaning the revolver.

All the foregoing circumstances conclusively prove that the

accused, deliberately and after due reflection had resolved to kill
the woman who had left him for another man, and in order to
accomplish his perverse intention with safety, notwithstanding the
fact that he was already provided with a clean and well-prepared
weapon and carried other loaded cartridges besides those already
in his revolver, he entered the house, greeting everyone
courteously and conversed with his victim, in what appeared to be
a proper manner, disguising his intention and claiming her by his
apparent repose and tranquility, doubtless in order to successfully
accomplish his criminal design, behaving himself properly as he
had planed to do beforehand.

As against the two foregoing aggravating circumstances no

mitigating circumstances is present, not even that mentioned in
paragraph 7 of article 9 of the Penal Code, to wit loss of reason
and self-control produced by jealousy as alleged by the defense,
inasmuch as the only causes which mitigate the criminal
responsibility for the loss of self-control are such as originate from
legitimate feelings, not those which arise from vicious, unworthy,
and immoral passions.

From the foregoing considerations, and as the judgment appealed

from is in accordance with the law, it is our opinion that the same
should be affirmed, as we do hereby affirm it with costs, provided,
however, that the death penalty shall be executed according to the
law in force, and that in the event of a pardon being granted, the
culprit shall suffer the accessory penalties of article 53 of the Penal
Code unless the same be expressly remitted in the pardon. So
ordered.
CRIM LAW FINALS I ACJUCO 14
G.R. No. L-7094 March 29, 1912
THE UNITED STATES, plaintiff-appellee,
vs.
HILARIO DE LA CRUZ, defendant-appellant.
F.C. Fisher for appellant.
Acting Attorney-General Harvey for appellee.
CARSON, J.:
The guilt of the defendant and appellant of the crime of homicide of
which he was convicted in the court below is conclusively
established by the evidenced of record.
The trial court was of opinion that its commission was not marked
by either aggravating or extenuating circumstances, and
sentenced the convict to fourteen years eight months and one day
of reclusion temporal, the medium degree of the penalty
prescribed by the code. Burt we are of opinion that the extenuating
circumstance set out in subsection 7 of article 9 should have been
taken into consideration, and that the prescribed penalty should
have been imposed in its minimum degree. Subsection 7 of article
9 is as follows:
The following are extenuating circumstances:
xxx xxx xxx
That of having acted upon an impulse so powerful as naturally to
have produced passion and obfuscation.
The evidence clearly discloses that the convict, in the heat of
passion, killed the deceased, who had theretofore been his
querida (concubine or lover) upon discovering her in flagrante in
carnal communication with a mutual acquaintance. We think that
under the circumstances the convict was entitled to have this fact
taken into consideration in extenuation of his offense under the
provisions of the above-cited article.
This was the view taken by the Court of Spain upon a similar state
of facts as set forth in its sentence of July 4, 1892, which is
summarized by Viada (p. 69, in question 19, art. 9 of vol. 6) as
follows:
Shall he who kills a woman with whom he is living in concubinage
for having caught her in her underclothes with another party and
afterwards shoots himself, inflicting a serious wound, be
responsible for that crime with the extenuating circumstance of
having acted with violent passion and obfuscation? The Audiencia
of Santiago de Cuba did not so hold and its judgment was
reversed by the supreme court for the improper disregard of article
9, number 8, of the Penal Code for Cuba and Puerto Rico: "The
facts held to be true by the trial court, and which were the
immediate cause of the crime by producing in the accused strong
emotion which impelled him to the criminal act and even to attempt
his own life, were a sufficient impulse in the natural and ordinary
course to produce the violent passion and obfuscation which the
law regards as a special reason for extenuation, and as the
judgment did not take into consideration the 8th circumstance of
article 9 of the code, the Audiencia rendering it seems to have
violated this legal provision."
It is true that in the case of U.S. vs. Hicks (14 Phil. Rep.., 217), we
held that the "causes which mitigate the criminal responsibility for
the loss of self-control are such as originate from legitimate
feelings, not those which arise from vicious, unworthy, and immoral
passions," and declined to give the benefit of the provisions of this
article to the convict in that case on the ground that the alleged
causes for his loss of self-control did not "originate from legitimate
feelings." But in that case we found as facts that:
All the foregoing circumstances conclusively prove that the
accused, deliberately and after due reflection had resolved to kill
the woman who had left him for another man, and in order to
accomplish his perverse intention with safety, notwithstanding the
fact that he was already provided with a clean and well-prepared
weapon and carried other loaded cartridges besides those already
in his revolver, he entered the house, greeting everyone
courteously and conversed with his victim, in what appeared to be
in a proper manner, disguising his intention and calming her by his
apparent repose and tranquility, doubtless in order to successfully
accomplish his criminal design, behaving himself properly as he
had planned to do beforehand.
In the former case the cause alleged "passion and obfuscation" of
the aggressor was the convict's vexation, disappointment and
deliberate anger engendered by the refusal of the woman to
continue to live in illicit relations with him, which she had a perfect
right to do; his reason for killing her being merely that he had
elected to leave him and with his full knowledge to go and live with
another man. In the present case however, the impulse upon
which defendant acted and which naturally "produced passion and
obfuscation" was not that the woman declined to have illicit
relations with him, but the sudden revelation that she was untrue to
him, and his discovery of her in flagrante in the arms of another. As
said by the supreme court of Spain in the above-cited decision,
this was a "sufficient impulse" in the ordinary and natural course of
things to produce the passion and obfuscation which the law
declares to be one of the extenuating circumstances to be taken
into consideration by the court.
Modified by a finding that the commission of the crime was marked
with the extenuating circumstance set out in subsection 7 of article
9, and by the reduction of the penalty of fourteen years eight
months and one day of reclusion temporal to twelve years and one
day of reclusion temporal, the judgment of conviction and the
sentence imposed by the trial court should be and are hereby
affirmed, with the costs of this instance against the appellant.
CRIM LAW FINALS I ACJUCO 15
7. ILLNESS
[G.R. No. 130654. July 28, 1999]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.
EDUARDO BASIN JAVIER, accused-appellant.
DECISION
ROMERO, J.:
Before us on automatic review is the Decision[1] dated April 15,
1997 of the Regional Trial Court of Agoo, La Union, Branch 32,[2]
in Criminal Case No. A-3155, convicting accused-appellant
Eduardo Javier of the crime of parricide and sentencing him to
suffer the penalty of death and to indemnify the heirs of the victim
in the amount of P50,000.00 as moral damages and P21,730.00
as actual expenses.
The Information filed before the trial court which charged accused-
appellant with the crime of parricide reads as follows:
"That on or about the 15th day of June 1996, in the Municipality of
Santo Tomas, Province of La Union, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused
with the intent to and being then armed with a bolo, did then and
there wilfully, unlawfully and feloniously attack, assault and use of
personal violence, by hacking with the said weapon one
FLORENTINA JAVIER Y LACESTE, his legitimate spouse, and as
a result of which his said wife suffered fatal injuries which directly
caused her death immediately thereafter, to the damage and
prejudice of the heirs of the victim.
Contrary to law."[3]
Upon arraignment, the accused-appellant pleaded not guilty and
trial ensued.
The prosecution evidence, consisting of the testimonies of
Consolacion Javier Panit and Alma Javier, daughters of the victim
and accused-appellant, and SPO1 Rotelio Pacho are detailed as
follows:
Accused-appellant Eduardo Javier and the victim Florentina
Laceste Javier were legally married on December 18, 1954.[4] In
their forty-one years of marriage, they begotten children. Accused-
appellant and Florentina lived at Tubod, Sto. Tomas, La Union with
one of their daughters, Alma Javier.[5]
On June 15, 1996 between two o'clock and three oclock in the
morning, Consolacion Javier Panit, who lives near her parent's
house about ten to fifteen meters away, heard her mother,
Florentina shouting "Arayatan dac ta papatayen nac ni Tatangyo"
(Your father is going to kill me). After she heard her mother scream
for help, Consolacion rushed out of her house and met her sister,
Alma who, weeping, told her that their parents were quarrelling.
Alma, at the time of the incident was living in her parents' house.
Consolacion and Alma then proceeded to their brother Manuel's
house, which is located about seventy to eighty meters away from
their parents' house. The three then proceeded to their parents'
house. Manuel, who entered first, found the lifeless body of his
mother and his father, accused-appellant, wounded in the
abdomen. Manuel then ordered Consolacion to get a tricycle to
bring their father to the hospital. At this point, Manuel informed her
sisters that their mother was dead and that their father confessed
to him that he killed his wife and thereafter allegedly stabbed
himself. Florentina was found dead in their bedroom, drenched in
her own blood.[6]
Accused-appellant was brought to the hospital by Consolacion's
husband, Fernando, and her son, Jefferson, while Manuel went out
to get help.[7]
SPO1 Rotelio Pacho, assigned as desk investigator at the Sto.
Tomas Police Station in La Union, testified in the investigation he
conducted with SPO4 Manuel Zarate and SPO1 Agaton Laroza
regarding the incident of June 15, 1996. He stated that he received
a call for assistance from the barangay captain of Tugod, Sto.
Tomas because accused-appellant allegedly killed his wife. The
police authorities then proceeded to accused-appellant's house in
Brgy. Tugod, Sto. Tomas, where they saw Florentina lying in the
bedroom floor covered with blood. Upon interviewing the victim's
children, Pacho testified that Manuel told him that his father
confessed to killing his wife. Manuel then surrendered to him the
bolo covered with blood which was found in the bedroom. The bolo
was allegedly used by accused-appellant in assaulting his wife.[8]
The medical findings indicated that the victim suffered from
multiple injuries and her neck was almost cut off from her body.[9]
Accused-appellant Eduardo Javier, in his testimony, admitted
killing his wife in their bedroom with the use of a sharp bolo. He
identified the bolo as the same one presented by the prosecution
as Exhibit "A" and which he used in wounding himself. Accused-
appellant told the court that he killed his wife because he could not
sleep for almost a month. He claimed that when the killing took
place, his mind went totally blank and he did not know what he
was doing.[10] He claims that he was insane at the time of the
incident.
The trial court rejected accused-appellant's defense of insanity and
on April 15, 1997 rendered a decision finding him guilty of parricide
and sentenced him to suffer the penalty of death. The dispositive
portion of the decision reads as follows:
"WHEREFORE, in view of all the foregoing consideration, the
accused, Eduardo Javier y Basin is hereby sentenced to suffer the
penalty of death; to pay the heirs of the victims the amount of
P50,000.00 as moral damages for the death of the victim and
P21,730.00 as actual expenses; and to pay the cost of the
proceedings.
SO ORDERED."[11]
In this appeal, accused-appellant alleged that the trial court erred
in imposing the death penalty, considering the presence of two
mitigating circumstances of illness of the offender and passion and
obfuscation.[12] While accused-appellant does not question the
CRIM LAW FINALS I ACJUCO 16
decision of the trial court in rejecting his defense of insanity, he
argues that he should be meted a lower penalty because at the
time of the incident, he was suffering from loss of sleep for a
prolonged period of time, which would have caused him to commit
the crime.
He further contends that his suspicion that his wife was having an
illicit relationship with another man, aggravated by his illness,
goaded him to commit the crime.
The Office of the Solicitor General, on the other hand, argues that
accused-appellant cannot claim the mitigating circumstance of
illness in the absence of a medical finding to support his claim.
Accused-appellant cannot likewise be entitled to the mitigating
circumstance of passion and obfuscation in the absence of
sufficient evidence.
We find the appeal bereft of merit.
Accused-appellant, during trial, admitted killing his wife, but
interposed as defense the exempting circumstance of insanity.
However, the trial court rejected this defense of insanity for failure
of the defense to prove that accused-appellant was indeed insane
at the time of the incident. The defense never presented any
medical record of the accused-appellant, nor was a psychiatrist
ever presented to validate the defense of insanity. Equally
important, the defense, during trial, never alleged the above-
claimed mitigating circumstances of illness and passion and
obfuscation, thus weakening the case of accused-appellant.
In this appeal, accused-appellant alleged that prior to the incident,
he had been suffering from insomnia for around a month, thus
leading him to commit an act beyond his control, the killing of his
wife, Florentina. The defense went on to cite medical literature on
the effects of total and partial sleep loss to support his contentions.
[13]
For the mitigating circumstance of illness of the offender to be
appreciated, the law requires the presence of the following
requisites: (1) illness must diminish the exercise of the will-power
of the offender; and (2) such illness should not deprive the offender
of consciousness of his acts.[14]
Since accused-appellant has already admitted to the killing, it is
incumbent upon him to prove the claimed mitigating circumstance
of illness. In this case, however, aside from the testimony of the
accused that his mind went blank when he killed his wife due to
loss of sleep, no medical finding was presented regarding his
mental condition at the time of killing. This Court can hardly rely on
the bare allegations of accused-appellant, nor on mere
presumptions and conjectures. No clear and convincing evidence
was shown that accused-appellant was suffering an illness which
diminished his exercise of will-power at the time of the killing.
On the other hand, it is clear that accused-appellant was aware of
the acts he committed. First, he remembered killing his wife in their
bedroom with the use of a bolo, where he mangled her neck twice;
he remembered trying to commit suicide, by wounding himself with
the same bolo he used in killing his wife; and he remembered
being brought to the hospital. Since he remembered the vital
circumstances surrounding the ghastly incident, from the time of
the killing up to the time he was brought to the hospital, it shows
that he was in full control of his mental faculties. This negates his
claim that he was suffering from an illness that diminished the
exercise of his will-power. On the basis of the foregoing, we cannot
appreciate the mitigating circumstance alleged by accused-
appellant.
Neither can we appreciate the circumstance of passion and
obfuscation to mitigate his criminal liability.
In order to be entitled to the mitigating circumstance of passion
and obfuscation, the following elements should concur: (1) there
should be an act both unlawful and sufficient to produce such
condition of mind; and (2) said act which produced the obfuscation
was not far removed from the commission of the crime by a
considerable length of time, during which the perpetrator might
recover his moral equanimity.[15] The foregoing elements were not
proved to be present in instant case. In fact, during accused-
appellant's testimony, he even stated that he was not jealous of his
wife.
As correctly observed by the Office of the Solicitor General:
"In the case of appellant, there is lack of proof of the cause which
produced the alleged passion and obfuscation. Appellant, in his
testimony, did not account how he killed his wife nor did he explain
the cause why he was prompted to kill his wife. Verily, there exists
no justifiable basis for applying to him this mitigating circumstance
of passion and obfuscation as the cause which produced it has not
been established."[16]
All told, the allegations propounded by accused-appellant that his
suspicions regarding his wife, aggravated by his illness made it
possible for him to kill his own wife, is but a mere afterthought to
whittle down his criminal liability.
Additionally, it is a settled rule that factual findings of the trial
courts will generally not be disturbed by the appellate court
because it is in the best position to properly evaluate testimonial
evidence considering that it observes the demeanor, conduct and
attitude of witnesses during the trial. In the case at bar, the trial
court was able to observe the behaviour of accused-appellant and
it stated that his recollection of the details surrounding the killing is
so impeccable that only a person in his right mind can make it.
Thus, the trial court was correct in convicting accused-appellant of
the crime of parricide under Article 246 of the Revised Penal Code
(as amended by Republic Act No. 7659, Section 5) which provides
that:
"Any person who shall kill his father, mother or child, whether
legitimate or illegitimate, or any of his ascendants, or descendants,
or his spouse, shall be guilty of parricide and shall be punished by
the penalty of reclusion perpetua to death."
The crime of parricide, not being a capital crime per se as it is not
punishable by mandatory death penalty but by the flexible penalty
of reclusion perpetua to death, two indivisible penalties, the
application of the lesser or the greater penalty depends on the
presence of mitigating and aggravating circumstances.[17]
In this case, the information for parricide against accused-
appellant did not allege any aggravating circumstance. Nor did the
evidence show that the prosecution was able to prove any
aggravating circumstance.[18] Likewise, no mitigating
circumstance is appreciated by this Court in favor of the accused-
appellant. Thus, in the absence of any aggravating or mitigating
circumstance for the accused-appellant, the lesser penalty of
reclusion perpetua should be imposed.
As regards the monetary liability, the Court takes the amount of
P50,000.00 imposed by the trial court as one of civil indemnity
instead of as moral damages.
WHEREFORE, the decision of the Regional Trial Court of Agoo, La
Union, Branch 32, in Criminal Case No. A-3155 is hereby
AFFIRMED with the MODIFICATION that accused-appellant
Eduardo Javier y Basin should suffer the penalty of reclusion
perpetua.
SO ORDERED.
CRIM LAW FINALS I ACJUCO 17
8. ANALOGOUS CIRCUMSTANCES
[G.R. No. 140937. February 28, 2001]
EXUPERANCIO CANTA, petitioner, vs. PEOPLE OF THE
PHILIPPINES, respondent.
DECISION
MENDOZA, J.:
This is a petition for review on certiorari of the decision, dated
August 31, 1999, and resolution, dated November 22, 1999, of the
Court of Appeals,[1] which affirmed the decision of the Regional
Trial Court, Branch 25, Maasin, Southern Leyte,[2] finding
petitioner Exuperancio Canta guilty of violation of P.D. No. 533,
otherwise known as the Anti-Cattle Rustling Law of 1974, and
sentencing him to ten (10) years and one (1) day of prision mayor,
as minimum, to twelve (12) years, five (5) months, and eleven (11)
days of reclusion temporal medium, as maximum, and to pay the
costs.
The information against petitioner alleged:
That on or about March 14, 1986, in the municipality of Malitbog,
province of Southern Leyte, Philippines, and within the jurisdiction
of this Honorable Court, the above-named accused with intent to
gain, did then and there, willfully, unlawfully and feloniously, take,
steal and carry away one (1) black female cow belonging to
Narciso Gabriel valued at Three Thousand Pesos (P3,000.00)
without the knowledge and consent of the aforesaid owner, to his
damage and prejudice in the amount aforestated.
CONTRARY TO LAW.[3]
The prosecution established the following facts:
Narciso Gabriel acquired from his half-sister Erlinda Monter a cow,
subject of the case, upon its birth on March 10, 1984. The cow
remained under the care of Erlinda Monter for sometime.
Subsequently, Narciso gave the care and custody of the animal,
first, to Generoso Cabonce, from October 24, 1984 to March 17,
1985; then to Maria Tura, from May 17, 1985 to March 2, 1986;
and lastly, to Gardenio Agapay, from March 3, 1986 until March 14,
1986 when it was lost.[4] It appears that at 5 oclock in the
afternoon of March 13, 1986, Agapay took the cow to graze in the
mountain of Pilipogan in Barangay Candatag, about 40 meters
from his hut. However, when he came back for it at past 9 oclock in
the morning of March 14, 1986, Agapay found the cow gone. He
found hoof prints which led to the house of Filomeno Vallejos. He
was told that petitioner Exuperancio Canta had taken the animal.
[5]
Upon instructions of the owner, Gardenio and Maria Tura went to
recover the animal from petitioners wife, but they were informed
that petitioner had delivered the cow to his father, Florentino
Canta, who was at that time barangay captain of Laca, Padre
Burgos, Southern Leyte. Accordingly, the two went to Florentinos
house. On their way, they met petitioner who told them that if
Narciso was the owner, he should claim the cow himself.
Nevertheless, petitioner accompanied the two to his fathers house,
where Maria recognized the cow. As petitioners father was not in
the house, petitioner told Gardenio and Maria he would call them
the next day so that they could talk the matter over with his father.
However, petitioner never called them. Hence, Narciso Gabriel
reported the matter to the police of Malitbog, Southern Leyte.[6] As
a result, Narciso and petitioner Exuperancio were called to an
investigation. Petitioner admitted taking the cow but claimed that it
was his and that it was lost on December 3, 1985. He presented
two certificates of ownership, one dated March 17, 1986 and
another dated February 27, 1985, to support his claim (Exh. B).[7]
Narciso presented a certificate of ownership issued on March 9,
1986, signed by the municipal treasurer, in which the cow was
described as two years old and female. On the reverse side of the
certificate is the drawing of a cow with cowlicks in the middle of the
forehead, between the ears, on the right and left back, and at the
base of the forelegs and hindlegs (Exhs. C, C-1 to 4).[8] All four
caretakers of the cow identified the cow as the same one they had
taken care of, based on the location of its cowlicks, its sex, and its
color. Gardenio described the cow as black in color, with a small
portion of its abdomen containing a brownish cowlick, a cowlick in
the middle of the forehead, another at the back portion between
the two ears, and four cowlicks located near the base of its
forelegs and the hindlegs.[9]
On the other hand, petitioner claimed he acquired the animal
under an agreement which he had with Pat. Diosdado Villanueva,
that petitioner take care of a female cow of Pat. Villanueva in
consideration for which petitioner would get a calf if the cow
produced two offsprings. Petitioner claimed that the cow in
question was his share and that it was born on December 5, 1984.
This cow, however, was lost on December 2, 1985. Petitioner said
he reported the loss to the police of Macrohon, Padre Burgos, and
Malitbog, on December 3, 1985 (Exh. A and Exh. 1).[10]
Petitioner said that on March 14, 1986, his uncle Meno told him
that he had seen the cow at Pilipogan, under the care of Gardenio
Agapay. He, therefore, went to Pilipogan with the mother cow on
March 14, 1986 to see whether the cow would suckle the mother
cow. As the cow did, petitioner took it with him and brought it,
together with the mother cow, to his father Florentino Canta.[11]
Maria Tura tried to get the cow, but Florentino refused to give it to
her and instead told her to call Narciso so that they could
determine the ownership of the cow.[12] As Narciso did not come
the following day, although Maria did, Florentino said he told his
son to take the cow to the Municipal Hall of Padre Burgos.
Petitioner did as he was told. Three days later, Florentino and
Exuperancio were called to the police station for investigation.[13]
Petitioner presented a Certificate of Ownership of Large Cattle
dated February 27, 1985[14] and a statement executed by Franklin
CRIM LAW FINALS I ACJUCO 18
Telen, janitor at the treasurers office of the municipality of Padre
Burgos, to the effect that he issued a Certificate of Ownership of
Large Cattle in the name of petitioner Exuperancio Canta on
February 27, 1985 (Exh. 5).[15] The statement was executed at
the preliminary investigation of the complaint filed by petitioner
against Narciso.[16]
Petitioners Certificate of Ownership was, however, denied by the
municipal treasurer, who stated that petitioner Exuperancio Canta
had no Certificate of Ownership of Large Cattle in the municipality
of Padre Burgos (Exhs. E, E-1 and 2).[17] On the other hand,
Telen testified that he issued the Certificate of Ownership of Large
Cattle to petitioner on March 24, 1986 but, at the instance of
petitioner, he (Telen) antedated it to February 27, 1985.[18]
On January 24, 1997, the trial court rendered its decision finding
petitioner guilty of the offense charged. In giving credence to the
evidence for the prosecution, the trial court stated:
From the affidavits and testimonies of the complainant and his
witnesses, it is indubitable that it was accused Exuperancio Canta
who actually took the cow away without the knowledge and
consent of either the owner/raiser/caretaker Gardenio Agapay.
That the taking of the cow by the accused was done with strategy
and stealth considering that it was made at the time when
Gardenio Agapay was at his shelter-hut forty (40) meters away
tethered to a coconut tree but separated by a hill.
The accused in his defense tried to justify his taking away of the
cow by claiming ownership. He, however, failed to prove such
ownership. Accused alleged that on February 27, 1985 he was
issued a Certificate of Ownership of Large Cattle (Exh. 2-A) for his
cow by Franklin Telen, a janitor at the Office of the Municipal
Treasurer of Padre Burgos, a neighboring town. On rebuttal
Franklin Telen denied in Court the testimony of the accused and
even categorically declared that it was only on March 24, 1986 that
the accused brought the cow to the Municipal Hall of Padre
Burgos, when he issued a Certificate of Ownership of Large Cattle
for the cow, and not on February 27, 1985. Franklin Telen testified
thus:
Q. According to the defense, this Certificate of Ownership of Large
Cattle was issued by you on February 27, 1985. Is that correct?
A. Based on the request of Exuperancio, I antedated this.
(TSN, June 3, 1992, p. 7)
The testimony of Franklin Telen was confirmed in open court by no
less than the Municipal Treasurer of Padre Burgos, Mr. Feliciano
Salva. (TSN, September 29, 1992, pp. 5-8).
If accused Exuperancio Canta were the owner of the cow in
question, why would he lie on its registration? And why would he
have to ask Mr. Franklin Telen to antedate its registry? It is clear
that accused secured a Certificate of Ownership of Large Cattle
(Exh. 2-A) by feigning and manipulation (Exhs. A & B) only after
the act complained of in the instant case was committed on March
14, 1986. His claim of ownership upon which he justifies his taking
away of the cow has no leg to stand on. Upon the other hand, the
complainant has shown all the regular and necessary proofs of
ownership of the cow in question.[19]
The Court of Appeals affirmed the trial courts decision and denied
petitioners motion for reconsideration. Hence, this petition. It is
contended that the prosecution failed to prove beyond reasonable
doubt his criminal intent in taking the disputed cow.
First. Petitioner claims good faith and honest belief in taking the
cow. He cites the following circumstances to prove his claim:
1. He brought the mother cow to Pilipogan to see if the cow in
question would suckle to the mother cow, thus proving his
ownership of it;
2. He compared the cowlicks of the subject cow to that indicated in
the Certificate of Ownership of Large Cattle issued on February
27, 1985 in his name, and found that they tally;
3. He immediately turned over the cow to the barangay captain,
after taking it, and later to the police authorities, after a dispute
arose as to its ownership; and
4. He filed a criminal complaint against Narciso Gabriel for
violation of P. D. No. 533.
These contentions are without merit.
P.D. No. 533, 2(c) defines cattle-rustling as
. . . the taking away by any means, methods or scheme, without
the consent of the owner/raiser, of any of the abovementioned
animals whether or not for profit or gain, or whether committed with
or without violence against or intimidation of any person or force
upon things.
The crime is committed if the following elements concur: (1) a
large cattle is taken; (2) it belongs to another; (3) the taking is done
without the consent of the owner; (4) the taking is done by any
means, methods or scheme; (5) the taking is with or without intent
to gain; and (6) the taking is accomplished with or without violence
or intimidation against person or force upon things.[20]
These requisites are present in this case. First, there is no
question that the cow belongs to Narciso Gabriel. Petitioners only
defense is that in taking the animal he acted in good faith and in
the honest belief that it was the cow which he had lost. Second,
petitioner, without the consent of the owner, took the cow from the
custody of the caretaker, Gardenio Agapay, despite the fact that he
knew all along that the latter was holding the animal for the owner,
Narciso. Third, petitioner falsified his Certificate of Ownership of
Large Cattle by asking Telen to antedate it prior to the taking to
make it appear that he owned the cow in question. Fourth,
petitioner adopted means, methods, or schemes to deprive
Narciso of his possession of his cow, thus manifesting his intent to
gain. Fifth, no violence or intimidation against persons or force
upon things attended the commission of the crime.
Indeed, the evidence shows that the Certificate of Ownership of
Large Cattle which petitioner presented to prove his ownership
was falsified. Franklin Telen, the janitor in the municipal treasurers
office, admitted that he issued the certificate to petitioner 10 days
after Narcisos cow had been stolen. Although Telen has previously
executed a sworn statement claiming that he issued the certificate
on February 27, 1985, he later admitted that he antedated it at the
instance of petitioner Exuperancio Canta, his friend, who assured
him that the cow was his.[21]
Telens testimony was corroborated by the certification of the
municipal treasurer of Padre Burgos that no registration in the
name of petitioner was recorded in the municipal records. Thus,
petitioners claim that the cowlicks found on the cow tally with that
indicated on the Certificate of Ownership of Large Cattle has no
value, as this same certificate was issued after the cow had been
taken by petitioner from Gardenio Agapay. Obviously, he had every
opportunity to make sure that the drawings on the certificate would
tally with that existing on the cow in question.
The fact that petitioner took the cow to the barangay captain and
later to the police authorities does not prove his good faith. He had
already committed the crime, and the barangay captain to whom
CRIM LAW FINALS I ACJUCO 19

he delivered the cow after taking it from its owner is his own father.
While the records show that he filed on April 30, 1986 a criminal
complaint against Narciso Gabriel, the complaint was dismissed
after it was shown that it was filed as a countercharge to a
complaint earlier filed on April 16, 1986 against him by Narciso
Gabriel.
Petitioner says that he brought a mother cow to see if the cow in
question would suckle to the mother cow. But cows frequently
attempt to suckle to alien cows.[22] Hence, the fact that the cow
suckled to the mother cow brought by petitioner is not conclusive
proof that it was the offspring of the mother cow.
Second. Petitioner contends that even assuming that his
Certificate of Ownership is not in order, it does not necessarily
follow that he did not believe in good faith that the cow was his. If it
turned out later that he was mistaken, he argues that he committed
only a mistake of fact but he is not criminally liable.
Petitioners Certificate of Ownership is not only not in order. It is
fraudulent, having been antedated to make it appear it had been
issued to him before he allegedly took the cow in question. That he
obtained such fraudulent certificate and made use of it negates his
claim of good faith and honest mistake. That he took the cow
despite the fact that he knew it was in the custody of its caretaker
cannot save him from the consequences of his act.[23] As the
Solicitor General states in his Comment:
circumstance can be considered analogous to voluntary surrender
and should be considered in favor of petitioner.
Second, the trial court correctly found petitioner guilty of violation
of 2(c) of P. D. No. 533, otherwise known as the Anti-Cattle
Rustling Law of 1974. However, it erred in imposing the penalty of
10 years and 1 day of prision mayor, as minimum, to 12 years, 5
months and 11 days of reclusion temporal medium, as maximum.
The trial court apparently considered P. D. No. 533 as a special
law and applied 1 of the Indeterminate Sentence Law, which
provides that if the offense is punished by any other law, the court
shall sentence the accused to an indeterminate sentence, the
maximum term of which shall not exceed the maximum fixed by
said law and the minimum shall not be less than the minimum term
prescribed by the same. However, as held in People v. Macatanda,
[28] P. D. No. 533 is not a special law. The penalty for its violation
is in terms of the classification and duration of penalties prescribed
in the Revised Penal Code, thus indicating that the intent of the
lawmaker was to amend the Revised Penal Code with respect to
the offense of theft of large cattle. In fact, 10 of the law provides:
The provisions of Articles 309 and 310 of Act No. 3815, otherwise
known as the Revised Penal Code, as amended, pertinent
provisions of the Revised Administrative Code, as amended, all
laws, decrees, orders, instructions, rules and regulations which are
inconsistent with this Decree are hereby repealed or modified
accordingly.

If petitioner had been responsible and careful he would have first
verified the identity and/or ownership of the cow from either
Narciso Gabriel or Gardenio Agapay, who is petitioners cousin
(TSN, 9/12/91, p. 26). Petitioner, however, did not do so despite
the opportunity and instead rushed to take the cow. Thus, even if
petitioner had committed a mistake of fact he is not exempted from
criminal liability due to his negligence.[24]
In any event, petitioner was not justified in taking the cow without
the knowledge and permission of its owner. If he thought it was the
cow he had allegedly lost, he should have resorted to the court for
the settlement of his claim. Art. 433 of the Civil Code provides that
The true owner must resort to judicial process for the recovery of
the property. What petitioner did in this case was to take the law in
his own hands.[25] He surreptitiously took the cow from the
custody of the caretaker, Gardenio Agapay, which act belies his
claim of good faith.
There being one mitigating circumstance and no aggravating
circumstance in the commission of the crime, the penalty to be
imposed in this case should be fixed in its minimum period.
Applying the Indeterminate Sentence Law, in relation to Art. 64 of
the Revised Penal Code, petitioner should be sentenced to an
indeterminate penalty, the minimum of which is within the range of
the penalty next lower in degree, i. e., prision correccional
maximum to prision mayor medium, and the maximum of which is
prision mayor in its maximum period.
WHEREFORE, the decision of the Court of Appeals is AFFIRMED,
with the modification that petitioner Exuperancio Canta is hereby
SENTENCED to suffer a prison term of four (4) years and two (2)
months of prision correccional maximum, as minimum, to ten (10)
years and one (1) day of prision mayor maximum, as maximum.
SO ORDERED.

For the foregoing reasons, we hold that the evidence fully supports
the finding of both the trial court and the Court of Appeals that
accused-appellant is guilty as charged. There is therefore no
reason to disturb their findings.

However, the decision of the Court of Appeals should be modified

in two respects.

First, accused-appellant should be given the benefit of the

mitigating circumstance analogous to voluntary surrender. The
circumstance of voluntary surrender has the following elements:
(1) the offender has not actually been arrested; (2) the offender
surrenders to a person in authority or to the latters agent; and (3)
the surrender is voluntary.[26] In the present case, petitioner
Exuperancio Canta had not actually been arrested. In fact, no
complaint had yet been filed against him when he surrendered the
cow to the authorities. It has been repeatedly held that for
surrender to be voluntary, there must be an intent to submit
oneself unconditionally to the authorities, showing an intention to
save the authorities the trouble and expense that his search and
capture would require.[27] In petitioners case, he voluntarily took
the cow to the municipal hall of Padre Burgos to place it
unconditionally in the custody of the authorities and thus saved
them the trouble of having to recover the cow from him. This
CRIM LAW FINALS I ACJUCO 20
AGGRAVATING CIRCUMSTANCES
REV. PEN. CODE, art. 14, 62, 63, 64 and 65
RULES OF COURT RULE 110, SECTION 8. DESIGNATION
OF THE OFFENSE. — The complaint or information shall state the
designation of the offense given by the statute, aver the acts or
omissions constituting the offense, and specify its qualifying and
aggravating circumstances. If there is no designation of the
offense, reference shall be made to the section or subsection of
the statute punishing it. (8a)
SECTION 9. CAUSE OF THE ACCUSATION. — The acts or
omissions complained of as constituting the offense and the
qualifying and aggravating circumstances must be stated in
ordinary and concise language and not necessarily in the language
used in the statute but in terms sufficient to enable a person of
common understanding to know what offense is being charged as
well as its qualifying and aggravating circumstances and for the
court to pronounce judgment. (9a)
[G.R. Nos. 148939-40. February 13, 2004]
PEOPLE OF THE PHILIPPINES, appellee, vs. JOSEPH ORILLA,
appellant.
DECISION
CARPIO, J.:
The Case
Before this Court for automatic review is the Decision[1] dated 7
May 2001 of the Regional Trial Court, First Judicial Region, Branch
54, Alaminos City, Province of Pangasinan. Remilyn Orilla, the 15-
year old sister of appellant Joseph Orilla (appellant), accused
appellant of raping her twice. The criminal cases were docketed as
Criminal Cases Nos. 3219-A and 3220-A. The trial court found
appellant guilty of only one crime of qualified rape and imposed on
him the death penalty in Criminal Case No. 3219-A. Instead of
dismissing the second case, Criminal Case No. 3220-A, the trial
court considered it as a qualifying circumstance for the purpose of
imposing the death penalty in Criminal Case No. 3219-A.
The Charge
The Amended Informations for Criminal Case Nos. 3219-A and
3220-A are identical. The allegations read:
That on or about the dawn of September 12, 1996 at Brgy.
Masidem, municipality of Bani, province of Pangasinan, Philippines
and within the jurisdiction of this Honorable Court, the above-
accused, by means of force or intimidation, armed with a knife, did
then and there willfully, unlawfully and feloniously have sexual
intercourse with REMILYN R. ORILLA, younger sister of accused
against her will and consent, to her damage and prejudice.
CONTRARY to Article 335 of the Revised Penal Code.[2]
Arraignment and Plea
On 3 January 1997, appellant assisted by his counsel de officio,
pleaded not guilty to the two charges.[3]
The Trial
Version of the Prosecution
The prosecution presented three witnesses: (1) Remilyn, the
complainant and sister of the appellant, (2) SPO1 Clarence de
Vera, a member of the Philippine National Police of Bani,
Pangasinan, who entered in the police blotter the complaint of
Remilyn, and (3) Dr. Lynette Valencerina-Caburnay (Dr.
Valencerina-Caburnay), a resident physician of the Western
Pangasinan District Hospital, who conducted the medico-legal
examination of Remilyn.
The prosecutions version of the rapes as summarized by the
Solicitor General is as follows:
On September 12, 1996, around 3:00 oclock in the morning,
fifteen-year old Remilyn Orilla was sound asleep inside one of the
rooms of their house located at Masidem, Bani, Pangasinan when
she was suddenly awakened by a heavy weight pressing on her
body and found appellant Joseph Orilla on top of her. (p. 18, TSN,
April 15, 1997)
Remilyn Orilla noticed that she was naked from waist down (pp.
17-18, ibid). Appellant continuously pinned down Remilyn Orillas
body with his own. She struggled to free herself from appellant but
her efforts proved futile. (p. 7, TSN, April 15, 1997)
Appellant held both hands of Remilyn Orilla with one hand holding
a knife with his other hand. He then forced Remilyn Orillas legs
apart and inserted his penis into her vagina. Remilyn Orilla felt
pain. She also felt some warm matter enter her vagina (p. 8, ibid.).
Appellant remained on top of Remilyn Orilla and, after a few
minutes, she again felt the same substance enter her vagina
(ibid.). With a knife pointed at her, Remilyn Orilla was powerless.
Appellant warned her not to make a noise. Frightened, Remilyn
Orilla just kept silent. (pp. 8-9, 18-19, ibid.)
Around 9:00 oclock in the morning of that same day, Remilyn Orilla
reported to her sister, Evelyn Catabay, what appellant did to her.
Immediately, they went to the Municipal Hall of Bani to report the
CRIM LAW FINALS I ACJUCO 21
incident. Unfortunately, the investigator assigned that day was
absent. (p. 22, ibid.)
On September 19, 1996, around 2:30 in the afternoon, Remilyn
Orilla arrived at the Bani Police Station, Bani, Pangasinan and
executed her sworn statement relative to the incident in question.
She recounted the incident to SPO1 Clarence P. de Vera who
entered the same in the Police Blotter (p. 2, TSN, June 11, 1997).
Later, or around 3:30 in the afternoon, Remilyn Orilla and her sister
went to the Western Pangasinan District Hospital in Alaminos,
Pangasinan. Remilyn Orilla was examined by Dr. Lynette D.
Valencerina whose findings are contained in the Medico-Legal
Certificate dated September 20, 1996 (Exhibit A) which she issued:
MENSTRUAL HISTORY: Menarche at age 13 years old, occurring
monthly, of 3-7 days duration, consuming around 2 napkins per
day not accompanied by hypoglycemia.
LMP August 9-14, 1996
PMP July 12-16, 1996
INTERNAL EXAMINATION: With old hymenal laceration at 3, 6
and 9 oclock position vaginal introitous admits 2 fingers with ease,
Cervix close, uterus small;
(-) adnexeal mass/tenderness
(+) whitish vaginal discharge
Pregnancy Test negative
Negative for the presence of spermatozoa
(p. 8, Record)
Accordingly, appellant was arrested. However, he escaped while
detained at the provincial jail. After a month of hiding, appellant
was re-arrested. (pp. 12-13, TSN, September 28, 1999).
On the other hand, Remilyn Orilla is now under the care of the
Department of Social Welfare and Development. (p. 12, TSN, April
15, 1997).[4]
Version of the Defense
The defense presented three witnesses: (1) appellant, (2) Crispin
Orilla (Crispin), brother of appellant and Remilyn, and (3) Beverly
Cabuburac (Beverly), sister of appellant and Remilyn.
Appellant and Remilyn are siblings. Remilyn is the youngest in a
brood of nine. The parents of appellant and Remilyn are already
dead. Remilyn was then staying in a house commonly owned by
the siblings in Barangay Masidem, Bani, Pangasinan. Adjacent to
Remilyns house is the house of appellant where he and his own
family lived.
Appellant claimed that from 2 August 1996 to 14 September 1996,
he was in Sitio Olo, Barangay Masidem, Bani, Pangasinan rushing
the work on the dikes of a fishpond. He was not able to go home to
his house in Barangay Masidem on 12 September 1996, the date
the crimes charged allegedly occurred.
Appellants house in Barangay Masidem is five to six meters away
from the house of Remilyn. However, the place where appellant
was staying in Sitio Olo is two kilometers away from Barangay
Masidem. One can negotiate the distance between Sitio Olo and
Barangay Masidem by walking. However, one must cross a river
before reaching Barangay Masidem. A motorboat service is
available to cross the river and the ride can last for an hour.
Crossing the river on foot will take about three hours.
Appellant worked in the fishpond of Lindel Onofre who is married
to another sister of appellant. At the time appellant was working in
the fishpond, his companion was his brother, Reneboy Orilla
(Reneboy). The persons left in appellants house while he was in
Sitio Olo were his wife, five children and his wifes grandmother.
When appellant left Barangay Masidem on 2 August 1996 for Sitio
Olo, the persons who were with Remilyn in her house were
Crispin, Beverly and her three children.
Appellant described Remilyn as matampuhin or emotional.
Remilyn was always frowning and sometimes she would be happy.
When Remilyn would get irritable she would just leave the house
for weeks without telling appellant or their other siblings where she
was going. Appellant claimed that he had a good relationship with
Remilyn although he would sometimes scold her because she
would leave the house without permission. Appellant does not
know why Remilyn accused him of rape. Appellant assumed that it
was because he often scolded Remilyn.
Crispin testified that on 11 September 1996, he and his sister
Beverly and her husband slept in the living room of their house
while Remilyn slept in the small room with Beverlys daughter. The
next day, 12 September 1996, Crispin woke up around 5:00 a.m.
and noticed that Remilyn was still asleep. During that time, his
brother Joseph was working in Barangay Ulo, Bani, Pangasinan.
Beverly testified that on 11 September 1996, she was in Masidem
with her children and her siblings, Crispin, Reneboy, and Remilyn.
At 6:00 a.m. of the next day, she, together with her husband and
children, left for Manila. She denied having any knowledge that her
brother Joseph raped their sister Remilyn.
The Trial Courts Judgment
The trial court ruled that Remilyn positively identified appellant as
the one who raped her. True, no electric light or kerosene lamp lit
the room where the rape took place. However, since it was already
3:00 a.m., a ray of light from the eastern horizon enabled Remilyn
to recognize appellant. When appellant threatened and ordered
Remilyn not to shout, or else he would kill her, Remilyn was able to
recognize appellants voice. The trial court concluded that even if
appellant attacked Remilyn during the darkest portion of the night,
[5] appellants voice alone could have made it known to Remilyn
that her attacker was appellant, her own brother.
The trial court rejected appellants defense of alibi. One can
negotiate the distance between Sitio Olo and Barangay Masidem
by riding passenger jeepneys and tricycles and by riding a
motorboat to cross the river. Appellant failed to demonstrate that it
was physically impossible for him to have access to the place
where the crime happened.
The trial court gave credence to Remilyns testimony because her
testimony was very natural and convincing.[6] In contrast, the
testimony of the defense witnesses failed to convince the trial
court. Defense witness Crispins demeanor in court prompted the
trial court to remark that he appeared crafty, cunning, unfair and
unreliable.[7] Beverlys testimony failed to support appellants alibi
because she testified that she left Barangay Masidem on 12
September 1996 and she learned of the rape only on her return
sometime in January of 1997.
The trial court held that the presence of old lacerations at 3, 6 and
9 oclock vaginal positions indicates that Remilyn had previous
sexual experience contrary to Remilyns claim that the rape was
her first sexual experience. The trial court nonetheless ruled that a
woman who is unchaste or impure could still be raped.
Thus, the trial court held appellant guilty of qualified rape in
Criminal Case No. 3219-A. The trial court ruled that since Remilyn
was only 15 years old at the time appellant raped her, the death
CRIM LAW FINALS I ACJUCO 22
penalty must be imposed on appellant, the victims brother.
Appellant committed only one count of rape because while
appellant ejaculated twice in Remilyns vagina, the first and second
ejaculations occurred during one single body connection.[8] The
trial court considered Criminal Case No. 3220-A involving the
second count of rape as a qualifying circumstance for the purpose
of imposing the death penalty in Criminal Case No. 3219-A.
The judgment of the trial court reads:
WHEREFORE, in consideration of the foregoing premises,
judgment is hereby rendered, finding the accused GUILTY beyond
reasonable doubt of the crime of RAPE in Criminal Case No. 3219-
A and considering that the offended party is under 18 years of age,
and the offender is the brother of the victim (relative by
consanguinity within the third civil degree) the accused is therefore
sentenced to suffer the SUPREME PENALTY OF DEATH by lethal
injection but in the event that upon automatic review by the
Honorable Supreme Court, that the penalty of Death is not
imposed but that of Reclusion Perpetua, this Honorable Court
recommends that accused should not be granted pardon within the
period of thirty (30) years and that he is further condemned to pay
in favor of the offended party in the sum of ONE HUNDRED
THOUSAND PESOS (P100,000.00) as civil indemnity.
That Criminal Case No. 3220-A is considered merely as a
qualifying circumstance in the imposition of the death penalty, as
the Court submits the view that there is only one crime of rape
committed although there were two ejaculations done on the
person of the offended party.
The Provincial Warden of the Province of Pangasinan at Lingayen
is ordered to commit the living body of the accused to the National
Penitentiary at Muntinlupa City within a period of three (3) days
from receipt of this Decision considering that in the past the
accused have (sic) tendency to escape his Jailer.
IT IS SO ORDERED.[9]
The Issues
Appellant submits for our review the following assignment of
errors:
I was sufficient to enable her to recognize her own brother.
THE TRIAL COURT GRAVELY ERRED IN FINDING THE
APPELLANT GUILTY OF THE CRIME CHARGED DESPITE
COMPLAINANTS DUBIOUS IDENTIFICATION OF APPELLANT
AS THE PERPETRATOR OF THE ALLEGED RAPE.
II
THE TRIAL COURT GRAVELY ERRED IN DISREGARDING
APPELLANTS DEFENSE OF ALIBI DESPITE COMPLAINANTS
DOUBTFUL IDENTIFICATION OF APPELLANT AS THE AUTHOR
OF THE CRIME CHARGED.
III
ASSUMING ARGUENDO THAT APPELLANT IS GUILTY, THE
TRIAL COURT GRAVELY ERRED IN CONSIDERING CRIMINAL
CASE NO. 3220-A AS A QUALIFYING CIRCUMSTANCE IN THE
IMPOSITION OF THE DEATH PENALTY AGAINST THE
APPELLANT IN CRIMINAL CASE NO. 3219-A, SINCE THE
CONSIDERATION OF SUCH QUALIFYING CIRCUMSTANCE IS
WITHOUT ANY LEGAL BASIS.
IV
ASSUMING ARGUENDO, THAT APPELLANT IS GUILTY, THE
TRIAL COURT GRAVELY ERRED IN IMPOSING ON HIM THE
DEATH PENALTY, DESPITE THE FACT THAT THE
INFROMATION NEVER ALLEGED THE QUALIFYING
CIRCUMSTANCE OF COMPLAINANTS AGE, AND THE EXACT
DEGREE OF CONSANGUINITY ANENT THE QUALIFYING
CIRCUMSTANCE OF RELATIONSHIP.[10]
The Courts Ruling
Appellant is guilty of rape as charged in Criminal Case No. 3219-A
but the proper penalty is reclusion perpetua, not death. Since
appellant committed only one count of rape, Criminal Case No.
3220-A must be dismissed.
Appellant insists that it was impossible for Remilyn to have
identified the person who raped her because the room where the
crime took place was pitch black, as it had no window and no
source of light. Appellant asks the Court to take judicial notice of
the fact that on 12 September 1996, a Thursday, the approximate
time of sunrise in the Philippines was at 5:45 a.m., or a good two
hours and forty-five minutes from 3:00 a.m. Appellant argues that if
the rape took place at 3:00 a.m., then there could have been no
early morning sunlight to aid Remilyn in identifying appellant.
We are not persuaded. Crispin, the brother of Remilyn and
appellant and a witness for the defense, testified that the wall of
the house where the rape happened was made of buri[11] and the
flooring of the house was made of splitted (sic) bamboo.[12] Buri is
a leaf that is dried and woven together to form panels used as
walls in the construction of houses. A panel of buri is not compact
as it has small holes in it allowing light to filter through the woven
material. The slats on the floor and the elevation of the floor from
the ground by two feet[13] also make it possible for light to pass
through the floor.
While the approximate time of sunrise in the Philippines on 12
September 1996 was at 5:45 a.m. and not at 3:00 a.m., what is
controlling is Remilyns declaration that the horizon coming from
the east enabled her to identify appellant. Remilyn categorically
declared that there was a little light, sir, that is why I recognized
him.[14] Remilyns declaration that there was a little light is
consistent with her statement that the room was not fully
illuminated but the amount of light that sneaked through her room
The time mentioned by Remilyn, that is 3:00 a.m., is at most an
estimate. We must bear in mind that appellant roused Remilyn
from sleep when he forced himself on her. Remilyn could not have
known the exact time as appellants act abruptly and rudely
awakened her. Remilyns estimate of the time while not precise
tends to strengthen the impression that her testimony is
unrehearsed. Moreover, no one expects rape victims to remember
with precision every detail of the crime. A mis-estimation of time is
too immaterial to discredit the testimony of a witness especially
where time is not an essential element or has no substantial
bearing on the fact of the commission of the offense.[15] What is
decisive in a rape charge is the complainants positive identification
of the accused as the malefactor.[16]
Appellant insists that the trial court erred in declaring that Remilyn
identified him through his voice. Appellant maintains that Remilyn
was not able to identify him at all. Appellants contention is without
basis. Remilyns testimony is as follows:
Q: And during the time that the accused was on top of you, what
did you do, if any?
A: I cannot move and fight because he threatened me not to shout,
sir.
CRIM LAW FINALS I ACJUCO 23
Q: And what was the word of the accused when he threatened
you?
A: He told me not to shout and move and according to him he will
kill me, sir.
PROS. RABINA:
Q: And because of those threatened words of the accused you
mean to inform the Honorable Court that you did not shout for
help?
A: No, sir, because I was afraid.[17]
Based on the foregoing testimony, there was nothing to prevent
the trial court from properly concluding that Remilyn identified
appellant through voice recognition. A persons voice is an
acceptable means of identification where there is proof that the
witness and the accused knew each other personally and closely
for a number of years.[18] Appellant is no stranger to Remilyn for
she had known him with much familiarity. Appellant is Remilyns
own brother. Thus, when appellant threatened Remilyn not to
shout and move, or else he would kill her, the trial court logically
inferred that Remilyn recognized appellant through his voice.
We have thoroughly examined the transcript of the testimonies of
the witnesses and we agree with the trial courts assessment of the
credibility of the witnesses. The trial court was meticulous in
judging the witnesses credibility. The trial court even took note of
the witnesses demeanor in court. Unless appellant can show that
the trial court overlooked, misunderstood, or misapplied some fact
or circumstance of weight or substance that would otherwise affect
the result of the case, the Court will not disturb the trial courts
findings on appeal.[19] None of the grounds to overturn the trial
courts ruling on the witnesses credibility is present in this case.
Remilyns narration of how appellant ravished her meets the test of
credibility. When a woman says that the accused raped her, in
effect, she says all that is necessary to show that the accused
raped her, and if her testimony meets the test of credibility, the
court may convict the accused on that basis.[20]
Remilyn had no reason to fabricate the serious charges against
her own brother whose life could hang in the balance in case he is
found guilty of qualified rape. With the filing of the criminal cases,
Remilyn had to face the ire of her other siblings, two of whom have
even testified against her. Remilyn is now under the custody of the
Department of Social Welfare and Development in Lingayen,
Pangasinan. An incestuous sexual assault is a psycho-social
deviance that inflicts a stigma, not only on the victim but also on
their whole family.[21] Even in ordinary rape cases, the sole
testimony of a credible victim may seal the fate of the rapist.[22]
Appellant failed to establish convincingly his alibi. The distance
between Sitio Olo, where appellant claimed he was, and Barangay
Masidem, where the rape happened, is only two kilometers.
Appellant himself admitted that public vehicles were available to
transport passengers from Sitio Olo to Barangay Masidem,
including a motorboat that could ferry the passengers to Barrio
Masidem in just about an hour. It was not physically impossible for
appellant to have gone to Barangay Masidem on the day he
committed the rape. None of his witnesses could even corroborate
his alibi.
Appellants alibi and denial cannot prevail over Remilyns positive
and categorical testimony. Alibi is an inherently weak defense and
courts must receive it with caution because one can easily
fabricate an alibi.[23] For alibi to prosper, it is not enough that the
accused show he was at some other place at the time of the
commission of the crime.[24] The accused must prove by clear
and convincing evidence that it was impossible for him to be at the
scene of the crime at the time of its commission.[25] Appellant
failed to do this. Moreover, appellants escape from detention does
not help his cause since escape is evidence of guilt.[26]
We must correct the trial courts opinion that prior to the rape,
Remilyn already had past sexual experience because her hymen
had healed lacerations. The trial court reached this conclusion
despite Remilyns assertion that she had no sexual experience at
all before the rape and despite the absence of such a finding by
Dr. Valencerina-Caburnay, the medico- legal who examined
Remilyn.
Dr. Valencerina-Caburnay conducted Remilyns physical
examination on 19 September 1996 or seven days after the rape.
Dr. Valencerina-Caburnay was not certain what exactly caused the
healed lacerations. Dr. Valencerina-Caburnay testified that an
object, probably a penis, could have caused the lacerations, or
even a fall could have caused them.[27] Dr.Valencerina-Caburnay
did not attribute the healed lacerations to a sexual experience prior
to the rape.
The presence of old lacerations per se does not imply that the
lacerations were the result of previous sexual experience and not
by the rape.[28] Thus, the trial court had no basis in ruling that
Remilyn was no longer a virgin when appellant raped her. The trial
court must be careful not to cast aspersions on the reputation of a
woman, especially so when she is still a minor.
The absence of fresh lacerations in Remilyns hymen does not
prove that appellant did not rape her. A freshly broken hymen is not
an essential element of rape and healed lacerations do not negate
rape.[29] In addition, a medical examination and a medical
certificate are merely corroborative and are not indispensable to
the prosecution of a rape case.[30] The credible disclosure of a
minor that the accused raped her is the most important proof of the
sexual abuse.[31]
The gravamen of the crime of rape is carnal knowledge of a
woman against her will.[32] Remilyns straightforward narration on
how appellant forcibly ravished her proves beyond reasonable
doubt that appellant is guilty of the crime of rape as charged in
Criminal Case No. 3219-A. However, appellant committed only one
count of rape. Remilyns own account of the rape proves this, thus:
Q: And after accused pointed you (sic) knife, can you tell the Court
what else did he do after that?
A: He had sexual intercourse with me to (sic) times at the same
time, sir.
COURT:
Q: Two times at the same time?
WITNESS
A: Yes, sir.
PROS. RABINA:
Q: And when he had sexual intercourse with you for two times as
you said on that same day, what was your feeling when he
inserted his penis into your vagina?
A: It is painful, sir, and I felt some warm matter to my vagina.
Q: And can you tell the Honorable Court how long was the
accused stayed (sic) on top of you before he ejaculated into your
vagina?
A: About thirty (30) minutes, sir.
CRIM LAW FINALS I ACJUCO 24
xxx
Q: Now, you said that the accused was on top of you for at least a
period of thirty minutes, do you mean to inform the Honorable
Court that the two sexual intercourse that he allegedly committed
on your person, he stayed on top of you for a period of thirty
minutes, is that what you mean?
Q: And for the first time that he ejaculated a warm substance
inside your vagina, did accused get out on top of you?
A: No, sir.
COURT:
Q: You mean to tell the Court that it is a case of double shoot in the
sense that after ejaculating he is still on top of you but then after
that he did it again while he was still on top of your body?
WITNESS:
A: Yes, sir.[33]
Remilyn testified that appellants penis penetrated her genitalia. At
that point, appellant had already consummated the rape. The mere
introduction of the penis into the labia majora of the victims
genitalia engenders the crime of rape.[34] Hence, it is the touching
or entry of the penis into the labia majora or the labia minora of the
pudendum of the victims genitalia that consummates rape.[35]
Appellant ejaculated twice during the time that he consummated
the rape. Appellant did not withdraw his penis to insert it again into
the vagina or to touch the labia majora or the labia minora when he
ejaculated the second time. It is not the number of times that
appellant ejaculated but the penetration or touching that
determines the consummation of the sexual act.[36] Thus,
appellant committed only one count of rape.
The trial court erred when it did not dismiss outright Criminal Case
No. 3220-A and instead considered it as a qualifying circumstance
for the purpose of imposing the death penalty in Criminal Case No.
3219-A. In short, the trial court considered the second ejaculation
by the accused as a qualifying circumstance to raise the penalty to
death. This has no basis in law.
Article 335[37] of the Revised Penal Code as amended by Section
11 of Republic Act No. 7659[38] (RA 7659) was the law then
applicable at the time of the rape. RA 7659 provides for the penalty
of reclusion perpetua for the carnal knowledge of a woman
procured through force or intimidation and without any other
attendant circumstance. The death penalty is imposed if the victim
is under eighteen years of age and the offender is a parent,
ascendant, step-parent, guardian, relative by consanguinity or
affinity within the third civil degree, or the common-law spouse of
the parent of the victim. When the information specifically alleges
the twin qualifying circumstances of relationship and minority of the
victim, and the prosecution proves the same in court, the
imposable penalty is no longer reclusion perpetua but death.[39]
The trial court convicted appellant of qualified rape in Criminal
Case No. 3219-A because appellant is Remilyns brother and she
was a minor being only 15 years old at the time that appellant
raped her. A reading of the Amended Information, however, does
not justify the elevation of the crime of simple rape to qualified
rape.
The prosecution went through the trouble of amending the
Information to allege that Remilyn is the younger sister of appellant
to emphasize the qualified nature of the rape. However, the
Amended Information did not allege Remilyns minor age. The
prosecutions failure to allege specifically Remilyns minor age
prevents the transformation of the crime to its qualified form.
The facts stated in the body of the information determine the crime
of which the accused stands charged and for which he must be
tried.[40] The information must allege every element of the offense
to enable the accused to prepare properly for his defense.[41] The
law assumes that the accused has no independent knowledge of
the facts that constitute the offense.[42] Since the Amended
Information failed to inform appellant that the prosecution was
accusing him of qualified rape, the court can convict appellant only
for simple rape and the proper penalty is reclusion perpetua and
not death.
The Solicitor General concedes that the trial court erred in
imposing the death penalty based on the twin circumstances of
relationship and minority considering that the Amended Information
failed to allege specifically Remilyns age. What justifies the
imposition of the death penalty, the Solicitor General argues, is the
fact that appellant used a knife in committing the rape and
appellant perpetrated the rape against his own sister. According to
the Solicitor General, Article 335 as amended by RA 7659 provides
that the use of a deadly weapon in the commission of rape results
in the imposition of the penalty of reclusion perpetua to death.
Applying Article 63 of the Revised Penal Code, the presence of an
aggravating circumstance warrants the imposition of the higher
penalty of death. The Solicitor General points out that relationship
in this case is an aggravating circumstance based on Article 15[43]
of the Revised Penal Code as applied in People v. Baldino.[44]
Appellant on the other hand argues that the allegation in the
Amended Information that he was armed with a knife does not
comply with Sections 8 and 9 of Rule 110 of the 2000 Revised
Rules of Criminal Procedure. The allegation in the Amended
Information that the accused was armed with a knife is not in any
way equivalent to use of a deadly weapon. The knife could simply
be a butter knife, a harmless knife. Appellant opines that the
Amended Information should have stated that accused was armed
with a deadly knife, which is a deadly weapon.
We have held in several cases that the allegation armed with a
knife is sufficient to inform the accused of the nature of the
accusation against him.[45] The prosecution also proved during
the trial appellants use of a deadly weapon. Remilyn testified that
she was not able to shout because appellant pointed an eight-inch
kitchen knife at her throat.[46]
We, however, do not agree with the Solicitor Generals opinion that
relationship should be appreciated as an aggravating circumstance
for the purpose of imposing the death penalty. People v. Baldino,
the case invoked by the Solicitor General, appreciated relationship
as an aggravating circumstance but only for the purpose of
assessing exemplary damages against the accused and not for the
purpose of imposing the death penalty. Two recent cases, People
v. Sagarino[47] and People v. Umbaa,[48] squarely address the
issue raised by the Solicitor General.
In People v. Sagarino[49] and People v. Umbaa,[50] the
information specifically alleged the use of a deadly weapon and
the prosecution proved the same. The information also specifically
alleged relationship between the accused and the victim, and the
prosecution proved the same: son and mother in People v.
Sagarino, and father and daughter in People v. Umbaa. However,
these two cases did not impose the death penalty. People v.
Umbaa repeated our explanation in People v. Sagarino. We quote
this pertinent portion in People v. Umbaa:
We agree with appellant that People vs. Sagarino finds application
in the case at bar. We there stated:
CRIM LAW FINALS I ACJUCO 25
We now come to the propriety of the penalties imposed on
appellant. Section 11 of Republic Act 7659, which amended article
335 of the Revised Penal Code, imposes the penalty of reclusion
perpetua when the rape was committed with force and intimidation.
But the imposable penalty becomes reclusion perpetua to death
whenever the rape is committed with the use of a deadly weapon.
Such is the situation in Criminal Case Nos. 98-551 and 98-552
because the use of a knife or a bladed weapon by appellant in the
consummation of the two rapes has been alleged and proved.
However, we are unable to sustain the death penalty imposed on
appellant in both cases. As provided in Section 8 of Rule 110 of the
Rules of Criminal Procedure, effective December 1, 2000, but
applicable to these cases now, the complaint or information must
not only state the designation of the offense given by statute and
aver the acts or omissions constituting the offense, but also specify
its qualifying and aggravating circumstances. But here the
informations against appellant in both cases show no specification
of circumstances that aggravate the offenses charged. Note that
the close relationship between the victim and the offender (mother
and son) is alleged, but nothing is stated in the informations
concerning pertinent circumstances (such as disregard of the filial
respect due the victim by reason of her age, sex and rank) that
could aggravate the crimes and justify imposing the death
sentence. Thus, absent any aggravating circumstance specifically
alleged and proved in the two rape cases, the penalty imposable
on appellant for each offense is not death but only the lesser
penalty of reclusion perpetua.
Article 266-B of the Revised Penal Code states the specific
aggravating/qualifying circumstances. Other than the use of a
deadly weapon, which is already taken into account to raise the
penalty to reclusion perpetua to death, not one of these
circumstances was alleged or proved in the case at bar. Hence,
the penalty imposable is only reclusion perpetua. (Emphasis ours)
The circumstances pertinent to the relationship mentioned in
People v. Sagarino and People v. Umbaa must be alleged in the
information and duly proven in the trial. In the present case, the
Amended Information did not allege the circumstances pertinent to
the relationship of appellant and Remilyn and the prosecution did
not prove these circumstances during the trial.
The circumstances pertinent to the relationship cited in People v.
Sagarino and People v. Umbaa are aggravating circumstances
listed in paragraph 3 of Article 14 of the Revised Penal Code.
Article 14 of the Revised Penal Code enumerates the aggravating
circumstances. Unlike mitigating circumstances under Article 13 of
the Revised Penal Code, Article 14 does not include
circumstances similar in nature or analogous to those mentioned in
paragraphs 1 to 21 of Article 14. The term aggravating
circumstances is strictly construed, not only because what is
involved is a criminal statute, but also because its application could
result in the imposition of the death penalty. The list of aggravating
circumstances in Article 14 of the Revised Penal Code is thus
exclusive[51] for the purpose of raising a crime to its qualified form.
Article 14 does not include relationship as an aggravating
circumstance. Relationship is an alternative circumstance under
Article 15 of the Revised Penal Code:
Art. 15. Their concept. --Alternative circumstances are those which
must be taken into consideration as aggravating or mitigating
according to the nature and effects of the crime and other
conditions attending its commission. They are relationship,
intoxication, and degree of instruction and education of the
offender.
The alternative circumstance of relationship shall be taken into
consideration when the offended party is the spouse, ascendant,
descendant, legitimate, natural, or adopted brother or sister, or
relative by affinity in the same degree of the offender.
Alternative circumstances are those which must be taken into
consideration as aggravating or mitigating according to the nature
and effects of the crime and other conditions attending its
commission. Based on a strict interpretation, alternative
circumstances are thus not aggravating circumstances per se.
The Revised Penal Code is silent as to when relationship is
mitigating and when it is aggravating.[52] Jurisprudence considers
relationship as an aggravating circumstance in crimes against
chastity.[53] However, rape is no longer a crime against chastity for
it is now classified as a crime against persons.[54] The
determination of whether an alternative circumstance is
aggravating or not to warrant the death penalty cannot be left on a
case-by-case basis. The law must declare unequivocally an
attendant circumstance as qualifying to warrant the imposition of
the death penalty. The Constitution expressly provides that the
death penalty may only be imposed for crimes defined as heinous
by Congress.[55] Any attendant circumstance that qualifies a crime
as heinous must be expressly so prescribed by Congress.
When the accused commits rape with the use of a deadly weapon,
the penalty is not death but the range of two indivisible penalties of
reclusion perpetua to death. To determine the proper penalty, we
apply Article 63 of the Revised Penal Code. It provides that:
ART. 63. Rules for the application of indivisible penalties. In all
cases in which the law prescribes a single indivisible penalty, it
shall be applied by the courts regardless of any mitigating or
aggravating circumstances that may have attended the
commission of the deed.
In all cases in which the law prescribes a penalty composed of two
indivisible penalties, the following rules shall be observed in the
application thereof:
1. When in the commission of the deed there is present only one
aggravating circumstance, the greater penalty shall be applied.
xxx
Article 63 states that the greater penalty, which is death, will be
applied when in the commission of rape there is present one
aggravating circumstance. We hold that the aggravating
circumstance that is sufficient to warrant the imposition of the
graver penalty of death must be that specifically enumerated in
Article 14 of the Revised Penal Code. Since it is only relationship
that is alleged and proven in this case, and it is not an aggravating
circumstance per se, the proper penalty is the lower penalty of
reclusion perpetua.
Even for the purpose of awarding exemplary damages, there was
lingering doubt whether the alternative circumstance of relationship
should be considered an aggravating circumstance to justify such
an award. People v. Catubig[56] settled the lingering doubt in this
manner:
The attendance of aggravating circumstances in the perpetration
of the crime serves to increase the penalty (the criminal liability
aspect), as well as to justify an award of exemplary or corrective
damages (the civil liability aspect), moored on the greater
perversity of the offender manifested in the commission of the
felony such as may be shown by (1) the motivating power itself, (2)
the place of commission, (3) the means and ways employed, (4)
the time, or (5) the personal circumstances of the offender or the
offended party or both. There are various types of aggravating
circumstances, among them, the ordinary and the qualifying.
Relationship is an alternative circumstance under Article 15 of the
Revised Penal Code.
CRIM LAW FINALS I ACJUCO 26
Art. 15. Their concept. --Alternative circumstances are those which
must be taken into consideration as aggravating or mitigating
according to the nature and effects of the crime and other
conditions attending its commission. They are relationship,
intoxication, and degree of instruction and education of the
offender.
The alternative circumstance of relationship shall be taken into
consideration when the offended party is the spouse, ascendant,
descendant, legitimate, natural, or adopted brother or sister, or
relative by affinity in the same degree of the offender.
As a rule, relationship is held to be aggravating in crimes against
chastity, such as rape and acts of lasciviousness, whether the
offender is a higher or a lower degree relative of the offended
party.
Under Section 11 of Republic Act No. 7659, amending Article 335
of the Revised Penal Code, the death penalty is to be imposed in
rape cases when the victim is under eighteen (18) years of age
and the offender is a parent, ascendant, step-parent, guardian,
relative by consanguinity or affinity within the third civil degree, or
the common-law spouse of the parent of the victim. The Court has
since held that the circumstances enumerated by the amendatory
law are to be regarded as special qualifying (aggravating)
circumstances. Somehow doubts linger on whether relationship
may then be considered to warrant an award for exemplary
damages where it is used to qualify rape as a heinous crime,
thereby becoming an element thereof, as would subject the
offender to the penalty of death. Heretofore, the Court has not
categorically laid down a specific rule, preferring instead to treat
the issue on a case to case basis.
In People vs. Fundano, People vs. Ramos, People vs. Medina,
People vs. Dimapilis, People vs. Calayca, People vs. Tabion,
People vs. Bayona, People vs. Bayya, and People vs. Nuez, along
with still other cases, the Court has almost invariably appreciated
relationship as an ordinary aggravating circumstance in simple
rape and thereby imposed exemplary damages upon the offender
whether or not the offense has been committed prior to or after the
effectivity of Republic Act No. 7659. Exceptionally, as in People vs.
Decena, People vs. Perez, and People vs. Ambray, the Court has
denied the award of exemplary damages following the effectivity of
that law. In qualified rape cases, such as in People vs. Magdato,
People vs. Arizapa, and People vs. Alicante, the Court decreed the
payment of exemplary damages to the offended party but it did not
so do as in People vs. Alba, People vs. Mengote, and People vs.
Maglente.
It may be time for the Court to abandon its pro hac vice stance and
provide, for the guidance of the bar and the bench, a kind of
standard on the matter.
Also known as punitive or vindictive damages, exemplary or
corrective damages are intended to serve as a deterrent to serious
wrong doings, and as a vindication of undue sufferings and wanton
invasion of the rights of an injured or a punishment for those guilty
of outrageous conduct. These terms are generally, but not always,
used interchangeably. In common law, there is preference in the
use of exemplary damages when the award is to account for injury
to feelings and for the sense of indignity and humiliation suffered
by a person as a result of an injury that has been maliciously and
wantonly inflicted, the theory being that there should be
compensation for the hurt caused by the highly reprehensible
conduct of the defendant - associated with such circumstances as
willfulness, wantonness, malice, gross negligence or recklessness,
oppression, insult or fraud or gross fraud- that intensifies the injury.
The terms punitive or vindictive damages are often used to refer to
those species of damages that may be awarded against a person
to punish him for his outrageous conduct. In either case, these
damages are intended in good measure to deter the wrongdoer
and others like him from similar conduct in the future.
The term aggravating circumstances used by the Civil Code, the
law not having specified otherwise, is to be understood in its broad
or generic sense. The commission of an offense has a two-
pronged effect, one on the public as it breaches the social order
and the other upon the private victim as it causes personal
sufferings, each of which is addressed by, respectively, the
prescription of heavier punishment for the accused and by an
award of additional damages to the victim. The increase of the
penalty or a shift to a graver felony underscores the exacerbation
of the offense by the attendance of aggravating circumstances,
whether ordinary or qualifying, in its commission. Unlike the
criminal liability which is basically a State concern, the award of
damages, however, is likewise, if not primarily, intended for the
offended party who suffers thereby. It would make little sense for
an award of exemplary damages to be due the private offended
party when the aggravating circumstance is ordinary but to be
withheld when it is qualifying. Withal, the ordinary or qualifying
nature of an aggravating circumstance is a distinction that should
only be of consequence to the criminal, rather than to the civil,
liability of the offender. In fine, relative to the civil aspect of the
case, an aggravating circumstance, whether ordinary or qualifying,
should entitle the offended party to an award of exemplary
damages within the unbridled meaning of Article 2230 of the Civil
Code. (Emphasis supplied)
In People v. Catubig, we held that the alternative circumstance of
relationship serves as basis for an award of exemplary damages
because the term aggravating circumstances must be understood
in its broad or generic sense. However, this interpretation is only
applicable to the civil aspect, not the criminal aspect of rape, which
involves the imposition of the proper penalty. When the penalty to
be imposed on the accused is teetering between reclusion
perpetua and death, the term aggravating circumstance in Article
63 of the Revised Penal Code must be understood in the strictest
sense. The aggravating circumstance that would spell the
difference between life and death for the accused must be that
specifically listed in Article 14 of the Revised Penal Code.
Death is an irrevocable penalty. Thus, the rule on strict
interpretation of criminal statutes applies with greater force when
the law defines the offense as a heinous crime punishable by
death.
However, we resort to the strict interpretation of the term
aggravating circumstance only for the purpose of imposing the
death penalty. When the penalty to be imposed is a range of
penalties where the maximum penalty is death and the
appreciation of an aggravating circumstance would call for the
imposition of the maximum penalty, which is death, the term
aggravating circumstance must be strictly construed. The
aggravating circumstance sufficient to justify the imposition of the
death penalty must not only be duly alleged and proven it must be
one of those enumerated in Article 14 of the Revised Penal Code
or that specified by law. In all other cases where the maximum
penalty is not death, the term aggravating circumstance must be
interpreted in its broad or generic sense so as to include the
alternative circumstances under Article 15 of the Revised Penal
Code.
We cannot consider dwelling as a generic aggravating
circumstance because the Amended Information did not allege
dwelling. The 2000 Revised Rules of Criminal Procedure, which
applies retroactively in this case, now explicitly mandates that the
information must state in ordinary and concise language the
qualifying and aggravating circumstances.[57] When the law or
rules specify certain circumstances that can aggravate an offense
or qualify an offense to warrant a greater penalty, the information
CRIM LAW FINALS I ACJUCO 27
must allege such circumstances and the prosecution must prove
the same to justify the imposition of the increased penalty.[58]
Relationship in this case serves to justify the award of exemplary
damages to Remilyn of P25,000.[59] Remilyn is also entitled to
P50,000 moral damages and P50,000 civil indemnity. Case law
requires the automatic award of moral damages to a rape victim
without need of proof because from the nature of the crime it can
be assumed that she has suffered moral injuries entitling her to
such award.[60] Such award is separate and distinct from civil
indemnity, which case law also automatically awards upon proof of
the commission of the crime by the offender.[61]
The trial court was so revolted by the perversity of appellants crime
that it was moved to include this proposal in the dispositive portion
of its decision:
xxx in the event that upon automatic review by the Honorable
Supreme Court, that the penalty of Death is not imposed but that
of Reclusion Perpetua, this Honorable Court recommends that
accused should not be granted pardon within the period of thirty
(30) years.
Incestuous rape is indeed reprehensible. It deserves our full
condemnation. However, the recommendation by the trial court is
improper.[62] It is the Presidents prerogative whether or not to
grant a pardon subject to the limitations imposed by the
Constitution.[63]
WHEREFORE, the Decision of the Regional Trial Court, First
Judicial Region, Branch 54, Alaminos City, Pangasinan, is
AFFIRMED insofar as it finds appellant Joseph Orilla GUILTY of
one count of rape in Criminal Case No. 3219-A with the
MODIFICATION that the death sentence imposed is reduced to
reclusion perpetua, and the amount of civil indemnity is reduced to
P50,000. In addition, appellant is further ordered to pay Remilyn
Orilla P50,000 moral damages and P25,000 exemplary damages.
Criminal Case No. 3220-A is dismissed. The provision
recommending the disqualification of appellant from executive
clemency is deleted. Costs de oficio.
SO ORDERED.
G.R. No. 175528 September 30, 2009
PO3 BENITO SOMBILON, JR., Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
LEONARDO-DE CASTRO, J.:
This resolves the petition for review which seeks to annul and set
aside the following rulings of the Court of Appeals (CA) in C.A.
C.R. No. 27729: a) the Decision1 dated July 28, 2005 which
affirmed with modification the decision2 dated May 13, 2003 of the
Regional Trial Court of Davao City (RTC), convicting petitioner of
acts of lasciviousness; and b) the Resolution3 dated September
22, 2006 denying petitioner’s Motion for Reconsideration of the
aforesaid Decision.
The facts found during trial, as succinctly stated by the CA, are as
follows:
The facts found during the trial reveal that on or about August 15,
1998, AAA, a fifteen (15)-year old minor, was investigated by
Appellant at the Calinan Police Station, Davao City in connection
with a complaint for Theft filed by a certain Aileen Dagoc.
AAA alleged that Appellant, in conducting the investigation, took
her inside a room and locked it. She testified that the room had no
window but had a cot, a table, and a clothesline where some
clothes were hanged. She claimed that Appellant pointed a gun at
her, with the end of the barrel touching her forehead and pushed
her with it, causing her head to violently bang against the wall, and
asked her: "Did you steal the necklace?" She answered that she
did not. Appellant then took an electric wire from a drawer and
inserted its male plug to a socket. She was ordered to place her
two hands on top of the table where her fingers were electrocuted
with the end of the wire. She was again asked the same question,
which she kept answering in the negative. Subsequently, she was
asked: "Dalaga ka na ba?’ (Are you a woman now?), and was told:
"I am single too." Simultaneously, she was touched all over her
body including her breasts, her belly, and her private parts. She
was also kissed on her cheek. She struggled to resist the sexual
advances but Appellant prevailed. She claimed that they were
inside the room for more than one (1) hour.
Thereafter, they went out of the room where Appellant announced
to P03 Danilo Mendez and Aileen Dagoc that she had already
admitted having stolen the necklace. Pale, AAA was trembling and
crying; her hair disheveled, her dress wet. She also had bruises on
her forehead.
The police officers allowed AAA and her mother to go home on the
condition that they would pay the value of the necklace. Because
of AAA’s condition, AAA’s mother brought her daughter to the
Medical Clinic of St. Luke where AAA was examined by Dr. Manuel
Garcia, Sr.4 Dr. Garcia gave AAA a tranquilizer to calm down the
latter who was trembling and incoherent.5 At first, AAA could not
answer the doctor when she was asked what happened to her.
Later, upon regaining her composure, she revealed that she was
electrocuted and sexually molested by petitioner.6 The Medical
Certificate7 issued by Dr. Garcia disclosed the following injuries:
1. Slight contusion over occiput region.
2. Slight contusion over center area of forehead.
3. Multiple slight contusions of fingers of bilateral hands.
4. Multiple slight contusions of bilateral breast areas.
5. Slight body tremors.
Diagnosis: Slight Physical Injuries
In an Information8 dated August 23, 1999, petitioner was charged
with the crime of Acts of Lasciviousness committed as follows:
The undersigned accuses the above-named accused of the crime
of Acts of Lasciviousness, under Art. 336, in relation to Art. 344 of
the Revised Penal Code, upon the instance of the complainant
AAA, who is 15 years old, whose affidavit is hereto attached to
form part of this Information. The crime is committed as follows:
CRIM LAW FINALS I ACJUCO 28
That on or about August 14, 1998, in the City of Davao,
Philippines, and within the jurisdiction of this Honorable Court, the
above-mentioned accused, motivated by lewd design, willfully,
unlawfully, and feloniously upon the person of AAA, by then and
there embracing, mashing the breast, and touching the private
part, against her will.
CONTRARY TO LAW.
Upon arraignment, petitioner pleaded "not guilty." Trial ensued
thereafter.
On May 13, 2003, after trial on the merits, the RTC rendered a
decision finding petitioner guilty of acts of lasciviousness with the
aggravating circumstance of petitioner’s taking advantage of his
public position and sentenced him to six (6) months of arresto
mayor, as minimum, to five (5) years, four (4) months and twenty-
one (21) days of prision correccional, as maximum. The dispositive
portion of the Decision reads:
For the foregoing judgment is hereby rendered, finding accused
P03 Benito Sombilon, GUILTY beyond reasonable doubt of the
crime of Acts of Lasciviousness, under Article 366 of the Revised
Penal Code, and is hereby sentenced to suffer imprisonment
under the Indeterminate Sentence Law from Six (6) months of
Arresto Mayor, as minimum to Five (5) years, Four (4) months and
Twenty-one (21) days of Prision Correccional, as maximum and
directed to pay private complainant AAA the following:
a.) by way of moral Damages, the amount of Ten Thousand Pesos
(PhP10,000.00); and
b.) by way of Exemplary Damages, the amount of ten Thousand
Pesos (Php10,000.00).9
From the above decision, petitioner interposed an appeal to the
CA, which was docketed as CA-G.R. CV No. 40419.
On July 28, 2005, the CA rendered the herein challenged Decision
affirming with modification the RTC’s judgment of conviction.
Appreciating the aggravating circumstance of taking advantage of
public position which was adequately established during the trial,
the CA increased the maximum penalty imposed against petitioner
to its maximum period of six years of prision correccional. The
dispositive portion of the Decision reads:
WHEREFORE, the Decision of the Regional Trial Court, Br. 8,
Davao City in Criminal Case No. 43, 810-99 is hereby AFFIRMED
with MODIFICATION. Appellant P03 Benito Sombilon, as found
guilty beyond reasonable doubt of the crime of acts of
lasciviousness, defined and penalized under article 336 of the
Revised Penal Code, is hereby sentenced to suffer the
indeterminate penalty of 6 months of arresto mayor as minimum,
to 6 years of prision correccional, as maximum. Appellant is
likewise ordered to pay the victim, AAA, the amount of
Php10,000.00 as moral damages and another Php10,000.00 as
exemplary damages.
With costs.
SO ORDERED.10
Thus, petitioner filed the instant petition, with the following
allegations:
I
THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING
THE TRIAL COURT THAT THE ACCUSED IS GUILTY OF THE
CRIME CHARGED BEYOND REASONABLE DOUBT;
II
ASSUMING BUT NOT ADMITTING, THE HONORABLE COURT
OF APPEALS ERRED IN AFFIRMING THE APPRECIATION OF
THE AGGRAVATING CIRCUMSTANCE OF TAKING ADVANTAGE
OF HIS PUBLIC POSITION FOR FAILURE TO ALLEGE IN THE
INFORMATION;
III
THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING
THE AWARD OF DAMAGES.11
Petitioner contends that the CA erred in affirming his conviction for
acts of lasciviousness. Even as he admits having merely touched
the victim, petitioner argues that the act of touching did not
constitute lewdness. At most, he could only be convicted of unjust
vexation. Petitioner likewise asserts that while the victim was being
touched, the latter tried to cover her body with her arms. Lastly
petitioner posits that the police station does not favor the
perpetration of the crime of acts of lasciviousness.
Petitioner’s contention deserves scant consideration.
The crime of acts of lasciviousness as punished under Article 336
of the Revised Penal Code provides:
ART. 336. Acts of lasciviousness.- Any person who shall commit
any act of lasciviousness upon other persons of either sex, under
any of the circumstances mentioned in the preceding article, shall
be punished by prision correccional.
For an accused to be convicted of acts of lasciviousness under the
foregoing provision, the prosecution is burdened to prove the
confluence of the following essential elements: (1) that the
offender commits any act of lasciviousness or lewdness; and (2)
that it is done under any of the following circumstances: (a) by
using force or intimidation; (b) when the offended woman is
deprived of reason or otherwise unconscious; or (c) when the
offended party is under twelve (12) years of age.12
In the case of Amployo v. People,13 the Court expounded on the
definition of the term lewd, thus:
The term "lewd" is commonly defined as something indecent or
obscene; it is characterized by or intended to excite crude sexual
desire. That an accused is entertaining a lewd or unchaste design
is necessarily a mental process the existence of which can be
inferred by overt acts carrying out such intention, i.e., by conduct
that can only be interpreted as lewd or lascivious. The presence or
absence of lewd designs is inferred from the nature of the acts
themselves and the environmental circumstances. What is or what
is not lewd conduct, by its very nature, cannot be pigeonholed into
a precise definition. As early as U.S. v. Gomez we had already
lamented that –
It would be somewhat difficult to lay down any rule specifically
establishing just what conduct makes one amenable to the
provisions of article 439 of the Penal Code. What constitutes lewd
or lascivious conduct must be determined from the circumstances
of each case. It may be quite easy to determine in a particular
case that certain acts are lewd and lascivious, and it may be
extremely difficult in another case to say just where the line of
demarcation lies between such conduct and the amorous
advances of an ardent lover.
Undoubtedly, petitioner committed acts which fall within the above
described lascivious conduct. It cannot be viewed as mere unjust
vexation as petitioner would have the Court do. The intention of
petitioner was intended neither to merely annoy or irritate the
victim nor to force her to confess the theft. He could have easily
CRIM LAW FINALS I ACJUCO 29
achieved that when he electrocuted the latter. Petitioner intended
to gratify his sexual desires.
As found by the RTC and affirmed by the CA, petitioner’s acts of
kissing the victim, fondling her breasts and touching her private
parts constitute lascivious conduct intended to quench his
salacious desire. Petitioner’s lewd intent was betrayed when he
asked AAA, "Dalaga ka na ba?" as a prelude to his lustful
advances on the victim, and thereafter conveyed to her that "I am
single too." We quote with approval the CA’s ratiocination:
Undeniably, appellant committed lewd acts against AAA. "Lewd" is
defined as obscene, lustful, indecent, and lecherous. It signifies
that form of immorality which has relation to moral impurity; or that
which is carried on a wanton manner. The evidence shows that
appellant committed lewd acts against AAA when he touched her
"all over her body" which includes mashing her breasts, touching
her private parts, and kissing her on the cheek. These acts were
clearly done with lewd designs as appellant even previously asked
AAA, as if it was a prelude for things to come, "Dalaga ka na ba?"
and thereafter conveyed to her that "he is single too."14
The fact that the victim tried to cover her body with her arms does
not negate petitioner’s lascivious conduct. Petitioner succeeded in
fondling the victim’s breasts intense enough to cause multiple
slight contusions of bilateral breast areas.
As aptly observed by the CA, petitioner employed force and
intimidation against AAA:
Moreover, appellant employed force and intimidation when he
committed these acts on AAA. In fact, as found by the trial court,
appellant pointed a gun at the forehead of AAA as evidenced by
the bruises on her forehead. Further, the medical Certificate shows
that AAA suffered slight physical injuries which include "multiple
slight contusion of bilateral breast areas" which supports AAA’s
claim.15
In People v. Victor,16 the Court held that in cases of acts of
lasciviousness, it is not necessary that intimidation be irresistible. It
being sufficient that some compulsion equivalent to intimidation
annuls or subdues the free exercise of the will of the offended
party. Here, the victim was locked inside a windowless room
together with her aggressor who poked a gun at her forehead.
Even a grown man would be paralyzed with fear if threatened at
gunpoint, what more the hapless victim who was only 15 years old
when she was subjected to such atrocity.
Petitioner’s assertion that the locus criminis i.e., the police station
makes it unlikely for him to commit the crime of acts of
lasciviousness is specious. The presence of other policemen on
duty and of the victim’s mother outside the room where the
incident took place does not render commission of the offense
impossible. It has been shown that there was a room in the
precinct which, except for two doors which could be locked, was
totally enclosed.17 During the commission of the acts of
lasciviousness, petitioner and AAA were the only persons inside
the room. Lust, as we have often held, is no respecter of either
place or time.18
As to the appreciation of the aggravating circumstance of taking
advantage of public position, petitioner points out that said
circumstance was not alleged in the information. The Solicitor
General shares the same view.
Sections 8 and 9 of Rule 110 of the Revised Rules of Criminal
Procedure, which took effect on December 1, 2000, provide:
Sec. 8. Designation of the offense. — The complaint or information
shall state the designation of the offense given by the statute, aver
the acts or omissions constituting the offense, and specify its
qualifying and aggravating circumstances. If there is no
designation of the offense, reference shall be made to the section
or subsection of the statute punishing it.
Sec. 9. Cause of the accusations. — The acts or omissions
complained of as constituting the offense and the qualifying and
aggravating circumstances must be stated in ordinary and concise
language and not necessarily in the language used in the statute
but in terms sufficient to enable a person of common
understanding to know what offense is being charged as well as its
qualifying and aggravating circumstances and for the court to
pronounce judgment.
Clearly, it is now a requirement that the aggravating as well as the
qualifying circumstances be expressly and specifically alleged in
the complaint or information. Otherwise, they cannot be
considered by the trial court in its judgment, even, if they are
subsequently proved during trial.19 A reading of the Information
shows that there was no allegation of any aggravating
circumstance.
In People v. Buayaban,20 the crime was committed and the
Information was filed in 1990. Still, the Court gave the 2000 Rules
of Criminal Procedure retroactive application since it benefited the
accused and disregarded the generic aggravating circumstance of
band because it was not alleged in the Information. The Court
explained, viz:
Section 8 simply provides that the information or complaint must
state the designation of the offense given by the statute and
specify its qualifying and generic aggravating circumstances. With
regard to Section 9, we held in People vs. Nerio Suela that the use
of the word "must" in said Section 9 indicates that the requirement
is mandatory and therefore, the failure to comply with sec. 9, Rule
110, means that generic aggravating circumstances, although
proven at the trial, cannot be appreciated against the accused if
such circumstances are not stated in the information.
In this case, we cannot properly appreciate the ordinary
aggravating circumstance of band in the commission of the crime
since there was no allegation in the information that "more than
three armed malefactors acted together in the commission of the
crime.
Here, the crime was committed in 1998, the generic aggravating
circumstance of taking advantage of public position was not
alleged in the information. As such, it cannot be appreciated as an
aggravating circumstance. Consequently, the penalty imposed
must be modified.
Section 1 of the Indeterminate Sentence Law21 (ISL) states that
(i)n imposing a prison sentence for an offense punished by the
Revised Penal Code, or its amendments, the court shall sentence
the accused to an indeterminate sentence the maximum term of
which shall be that which, in view of the attending circumstances,
could be properly imposed under the rules of the said Code, and
the minimum which shall be within the range of the penalty next
lower to that prescribed by the Code for the offense. Under Article
366 of the Revised Penal Code, the penalty for acts of
lasciviousness is prision correccional. Since no aggravating or
mitigating circumstance attended the commission of the offense in
this case, the penalty should be applied in its medium period, the
duration of which is two (2) years, four (4) months and one (1) day
to four (4) years and two months, as maximum. The minimum shall
be within the range of the penalty next lower in degree which is
arresto mayor, with the duration of one (1) month and one (1) day
to six (6) months.1avvphi1
Applying the ISL, the proper penalty would be imprisonment of six
(6) months of arresto mayor as minimum to four (4) years and two
(2) months of prision correccional as maximum.22
CRIM LAW FINALS I ACJUCO 30
As to the damages awarded, Article 2230 of the Civil Code
provides that in criminal offenses, exemplary damages as part of
the civil liability may be imposed when the crime was committed
with one or more aggravating circumstances. Since the generic
aggravating circumstance of taking advantage of public position
was not alleged in the Information against petitioner it cannot be
appreciated in the imposition of the penalty. But as regards the
award of exemplary damages, in the case of People v. Catubig,23
the Court declined retroactive application of the 2000 Rules of
Criminal Procedure, to wit:
The retroactive application of procedural rules, nevertheless,
cannot adversely affect the rights of the private offended party that
have become vested prior to the effectivity of said rules. Thus, in
the case at bar, although relationship has not been alleged in the
information, the offense having been committed, however, prior to
the effectivity of the new rules, the civil liability already incurred by
appellant remains unaffected thereby.
Thus, in accordance with the foregoing pronouncement, the Court
affirms the CA’s award of exemplary damages to the victim in the
amount of ₱10,000.00.
With regard to the awarded moral damages in the amount of
₱10,000.00, the same should be increased to ₱30,000.00. In
People v. Solmoro24 we declared that upon a finding of guilt of the
accused for acts of lasciviousness, the amount of ₱30,000.00 as
moral damages may be further awarded to the victim in the same
way that moral damages are awarded to victims of rape even
without need of proof because it is assumed that they suffered
moral injury. Considering the immeasurable pain and anguish that
the victim had to suffer in the hands of the petitioner; the trauma
that she had to endure even after the incident; and the sexual
perversity of petitioner, who is a police officer, the award of moral
damages in the amount of ₱30,000.00 is proper.
WHEREFORE, the petition is hereby denied and the Decision
dated July 28, 2005 of the Court of Appeals finding petitioner P03
Benito Sombilon GUILTY of the crime of acts of lasciviousness
under Article 336 of the Revised Penal Code is AFFIRMED with
Modification that he is sentenced to suffer an indeterminate
penalty of imprisonment of six (6) months of arresto mayor as
minimum to four (4) years and two (2) months of prision
correccional as maximum, and to pay the victim the amount of
₱30,000 as moral damages and ₱10,000.00 as exemplary
damages.
SO ORDERED.
G.R. No. 182551 July 27, 2011
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs.
ROSENDO REBUCAN y LAMSIN, Accused-Appellant.
DECISION
LEONARDO–DE CASTRO, J.:
Assailed before this Court is the Decision1 dated August 21, 2007
of the Court of Appeals in CA-G.R. CR.-H.C. No. 00282, which
modified the Decision2 dated November 3, 2003 of the Regional
Trial Court (RTC) of Carigara, Leyte, Branch 13, in Criminal Case
No. 4232. In the Decision of the Court of Appeals, the accused-
appellant Rosendo Rebucan y Lamsin was adjudged guilty beyond
reasonable doubt of two (2) separate counts of murder and was
sentenced to suffer the penalty of reclusion perpetua for each
count.
On January 23, 2003, the accused-appellant was charged with the
crime of double murder in an Information, the accusatory portion of
which reads:
That on or about the 6th day of November, 2002, in the
Municipality of Carigara, Province of Leyte, Philippines and within
the jurisdiction of this Honorable Court, the above-named accused,
with deliberate intent to kill, with treachery and evident
premeditation and abuse of superior strength, did then and there
willfully, unlawfully and feloniously attack, assault and wound
FELIPE LAGERA Y OBERO, 65 years old and RANIL TAGPIS Y
LAGERA, 1 year old, with the use of a long bolo (sundang) which
the accused had provided himself for the purpose, thereby
inflicting upon Felipe Lagera:
Hypovolemic shock, massive blood loss and multiple hacking
wounds upon Ranil Tagpis:
Hypovolemic shock, massive blood loss and hacking wound,
head[,] which wounds caused the death of Felipe Lagera y Obera
and Ranil Tagpis y Lagera, immediately thereafter.3
When arraigned on February 10, 2003, the accused-appellant
pleaded not guilty to the charge.4 Trial, thereafter, ensued.
The prosecution presented as witnesses: (1) Dr. Ma. Bella V.
Profetana, Municipal Health Officer of Carigara, Leyte; (2) Carmela
Tagpis, the 5-year-old granddaughter of the victim Felipe Lagera
and sister of the victim Ranil Tagpis, Jr.;5 (3) Adoracion Lagera,
the wife of Felipe Lagera; and (4) Alma Tagpis, the daughter of
Felipe Lagera and mother of Ranil Tagpis, Jr.
Dr. Profetana testified that she conducted a post-mortem
examination on the body of the victim Felipe Lagera on November
6, 2002. She stated that Felipe sustained three hacking wounds,
the first of which was located at his right arm and was about
23x2x4 centimeters. The said wound was fatal and could have
been caused by a sharp instrument such as a bolo. The second
wound was located at Felipe’s "nose maxillary area,"6 measuring
13 centimeters, with an inverted C shape. The second wound was
not fatal and could have been caused by a sharp-edged instrument
like a bolo. The third wound was located at Felipe’s left arm and
was measured as 9x1x1.5 centimeters. The said wound was fatal
and could have likewise been caused by a sharp-edged
instrument. Dr. Profetana concluded that the causes of death of
Felipe were hypovolemic shock, massive blood loss and multiple
hacking wounds. She also conducted a post-mortem examination
on the body of Ranil Tagpis, Jr. on the aforementioned date. The
results revealed that Ranil sustained a hacking wound at the
"fronto-temporal area"7 with a skull fracture. In the case of Ranil,
the cause of death was "hypovolemic shock secondary to massive
blood loss secondary to [the] hacking wound to the head."8 The
instrument that was most likely used was sharp-edged like a bolo.9
Carmela Tagpis testified as an eyewitness to the incident in
question. She pointed to the accused-appellant as the "Bata
Endong"10 (Uncle Endong) who hacked her grandfather and
brother. She stated that Ranil was hit in the forehead, while Felipe
CRIM LAW FINALS I ACJUCO 31
was hit on the face, the left shoulder and the right shoulder. After
Felipe was hacked by the accused-appellant, the former was still
able to walk outside of his house, to the direction of the coconut
tree and thereafter fell to the ground. Carmela said that she saw
that a long bolo was used in the killing of Felipe and Ranil. She
related that Felipe also owned a bolo but he was not able to use
the same when he was attacked. She was then inside the house
with Felipe and her two younger brothers, Jericho and Bitoy
(Ranil). She was sitting about four meters away when the hacking
incident occurred indoors.11
On cross-examination, Carmela stated that at the time of the
incident, she was playing with a toy camera inside the house and
she was situated beside a chicken cage, near a bench. Felipe was
also there near the bench and he was carrying Ranil in his right
arm. When asked whether the accused-appellant came inside the
house in a sudden manner, Carmela answered in the affirmative.
She insisted that Ranil was indeed carried by Felipe when the
accused-appellant entered the house. She said that no fight or
altercation occurred between Felipe and the accused-appellant.
After Felipe was hacked, he immediately ran outside of the house.
Carmela and Jericho then ran to the back of the house.12
Adoracion Lagera testified that at 4:00 p.m. on November 6, 2002,
she was at the house of a certain Justiniano Rance. After arriving
there, she was fetched by a little boy who told her to go home
because Felipe had been hacked. She ran towards the direction of
her house. When she got there, she saw the lifeless body of Felipe
sprawled on the ground. She then went inside the house and
found her daughter, Alma Tagpis, cuddling the body of Ranil whose
head was wounded. She told Alma to look for a motor vehicle to
bring the child to the hospital. She also found out that the other two
children, Carmela and Jericho, hid when they saw Felipe being
hacked. When she asked them who went to their house, Carmela
told her that it was the accused-appellant who entered their house
and hacked the victims.13
Alma Tagpis testified that at about 4:00 p.m. on November 6, 2002,
she was in Brgy. Sogod, having their palay (unhusked rice grain)
milled. Shortly thereafter, she went home and proceeded to the
house of her father, Felipe, where she left her children. She then
met a person looking for her mother who was about to tell the latter
that Felipe was hacked. When she rushed to Felipe’s house, she
saw him lying in the grassy place, wounded and motionless. She
asked Felipe who hacked him, but he was not able to answer
anymore. She went inside the house and saw blood on the floor
and the feet of her son Ranil. Thinking that the killer was still
inside, she went to the back of the house and pulled a slot of board
on the wall so she could get inside. Upon seeing the body of Ranil,
she took him and ran towards the road. She was able to bring
Ranil to the hospital, but the doctor already pronounced him dead.
Her other two children, Carmela and Jericho, soon arrived at the
hospital with the police. When she asked them who killed Felipe,
Carmela answered that it was the accused-appellant.14
Thereafter, the prosecution formally offered the following
documentary evidence, to wit: (1) Exhibit A – the Post-mortem
Examination Report on Felipe;15 (2) Exhibit B – the sketch of the
human anatomy indicating the wounds sustained by Felipe;16 (3)
Exhibit C – the Certificate of Death of Felipe;17 (4) Exhibit D – the
Post-mortem Examination Report on Ranil;18 (5) Exhibit E – the
sketch of the human anatomy indicating the wounds sustained by
Ranil;19 and (6) Exhibit F – the Certificate of Death of Ranil.20
The defense, on the other hand, presented the following
witnesses, namely: (1) Raymond Rance, the stepson of the
accused-appellant; (2) Renerio Arminal,21 the barangay
chairperson of Brgy. Canlampay, Carigara, Leyte; (3) Arnulfo
Alberca, a member of the Philippine National Police (PNP)
stationed at Carigara, Leyte; and (4) the accused-appellant
Rosendo Rebucan y Lamsin.
Raymond Rance testified that his mother’s name is Marites Rance.
The accused-appellant is not his biological father but the former
helped in providing for his basic needs. He narrated that on the
night of July 18, 2002, he saw Felipe Lagera inside their house.
Felipe placed himself on top of Raymond’s mother, who was lying
down. Raymond and his younger sister, Enda, were then sleeping
beside their mother and they were awakened. His mother kept
pushing Felipe away and she eventually succeeded in driving him
out. In the evening of July 20, 2002, at about 11:00 p.m., Raymond
recounted that he saw Felipe’s son, Artemio alias Timboy, inside
their house. Timboy was able to go upstairs and kept trying to
place himself on top of Raymond’s mother. The latter got mad and
pushed Timboy away. She even pushed him down the stairs. The
accused-appellant was working in Manila when the aforesaid
incidents happened. Raymond said that his mother thereafter left
for Manila. Subsequently, he saw the accused-appellant at the
house of a certain Bernie, several days after the accused-appellant
arrived in Leyte. He told the accused-appellant about the incidents
involving Felipe and Timboy. On November 6, 2002, Raymond and
the accused were already living in the same house. On the said
date, the accused-appellant left their house after they had lunch
and he told Raymond that he was going to call the latter’s mother.
Raymond testified that the accused-appellant is a good man and
was supportive of his family. He also stated that the accused-
appellant seldom drank liquor and even if he did get drunk, he did
not cause any trouble.22
Renerio Arminal testified that on November 6, 2002, the accused-
appellant surrendered to him. The latter came to him alone and
told him that he (the accused-appellant) fought with Felipe Lagera.
Arminal then ordered the human rights action officer, Ricky
Irlandez, and the chief tanod, Pedro Oledan, to bring the accused-
appellant to the police station. Afterwards, the police officers came
to his place and he accompanied them to the house of Felipe.23
Arnulfo Alberca was likewise called upon to the witness stand to
prove that the voluntary surrender of the accused-appellant was
entered into the records of the police blotter. He was asked to read
in open court the Police Blotter Entry No. 5885 dated November 6,
2002, which recorded the fact of voluntary surrender of the
accused-appellant. His testimony was no longer presented,
however, since the prosecution already admitted the contents of
the blotter.24
The accused-appellant testified that he arrived in Carigara, Leyte
from Manila on August 15, 2002. He went to the house of his elder
brother, Hilario, to look for his children. There, he learned that his
wife went to Manila and his brother was taking care of his two
children and his stepson, Raymond. On November 2, 2002, he
saw Raymond at the place of his friend, Bernie Donaldo. He asked
Raymond why the latter’s mother went to Manila and he was told
that, while he was still in Manila, Felipe and Timboy Lagera went to
their house and tried to place themselves on top of his wife. He
then said that he harbored ill feelings towards the said men but he
was able to control the same for the sake of his children. On
November 6, 2002, at about 2:00 p.m., he went to the house of
barangay chairperson Arminal to place a call to his wife who was in
Manila. He was carrying a bolo at that time since he was using the
same to cut cassava stems in his farm. When he talked to his wife,
she confirmed that she was sexually molested by Felipe and
Timboy. Thereafter, as the accused-appellant proceeded to go
home, it rained heavily so he first sought shelter at the place of his
friend, Enok. The latter was drinking gin and he was offered a
drink. After staying there and drinking for half an hour, the
accused-appellant decided to go home. Afterwards, he
remembered that he had to buy kerosene so he went to the store
of Felipe Lagera.25
The accused-appellant further testified that when he reached the
house of Felipe, the latter was feeding chickens. When Felipe
CRIM LAW FINALS I ACJUCO 32
asked him what was his business in going there, he confronted
Felipe about the alleged sexual abuse of his wife. Felipe allegedly
claimed that the accused-appellant had a bad purpose for being
there and that the latter wanted to start a fight. Accused-appellant
denied the accusation and responded that Felipe should not get
angry, as it was he (Felipe) who committed a wrong against him
and his wife. Felipe allegedly got mad and hurled the cover of a
chicken cage at him, but he was able to parry it with his hand. The
accused-appellant then drew his long bolo and hacked Felipe on
the left side of the abdomen, as the latter was already turning and
about to run to the house. He also went inside the house since
Felipe might get hold of a weapon. When they were both inside
and he was about to deliver a second hacking blow, Felipe held up
and used the child Ranil as a shield. As the second hacking blow
was delivered suddenly, he was not able to withdraw the same
anymore such that the blow landed on Ranil. When he saw that he
hit the child, he got angry and delivered a third hacking blow on
Felipe, which landed on the right side of the latter’s neck.
Thereafter, Felipe ran outside. He followed Felipe and hacked him
again, which blow hit the victim’s upper left arm. At that time,
Felipe was already on the yard of his house and was about to run
towards the road. He then left and surrendered to the barangay
chairperson.26
During his cross-examination, the accused-appellant said that he
was a bit tipsy when he proceeded to Felipe’s house, but he was
not drunk. When Felipe ran inside the house after the first hacking
blow, the accused-appellant stated that he had no intention to back
out because he was thinking that the victim might get a gun and
use the same against him. The accused-appellant also asserted
that when he was about to deliver the second hacking blow, Felipe
simultaneously took Ranil who was sitting on a sack and used him
to shield the blow. There was a long bolo nearby but Felipe was
not able to take hold of the same because the accused-appellant
was chasing him. He admitted that he had a plan to kill Felipe but
claimed that when he arrived at the latter’s house on the day of the
attack, he had no intention to kill him.27
The defense also presented the following documentary evidence:
(1) Exhibit 1 – the Police Blotter Entry No. 5885 dated November
6, 2002;28 and (2) Exhibit 2 – the Civil Marriage Contract of
Rosendo Rebucan and Marites Rance.29
On November 3, 2003, the RTC rendered a decision, convicting
the accused-appellant of the crime of double murder. The trial
court elucidated thus:
[In view of] the vivid portrayal of Raymond on how [the wife of the
accused] was sexually abused by the father and son Lagera, the
accused hatched a decision to avenge his wife’s sexual
molestation. Days had passed, but this decision to kill Felipe did
not wither, instead it became stronger, that on the 6th of November
2002, he armed himself with a sharp long bolo known as
"sundang" and went to Brgy. Canlampay, Carigara, Leyte where
the victim live[d]. Fueled by hatred and the spirit of London gin
after consuming one bottle with his compadre "Enok", he decided
to execute his evil deeds by going to the house of Felipe Lagera, in
the guise of buying kerosene and once inside the house hacked
and wounded the victim, Felipe Lagera who was then holding in
his arm his grandson, one and half years 1 ½ old, Ramil Tagpis, Jr.
The manner by which the accused adopted in killing the victim,
Felipe Lagera, and Ramil Tagpis, Jr. was a premeditated decision
and executed with treachery.
xxxx
There is credence to the testimony of the minor eyewitness
Carmela Tagpis that the victim, Felipe was holding in his arms her
younger brother, Ramil Tagpis, Jr. inside his house, when the
accused entered, and without any warning or provocation coming
from the victim, the accused immediately delivered several hacking
blows on the victim giving no regard to the innocent child in the
arms of Lagera. With this precarious situation, the victim who was
unarmed has no opportunity to put up his defense against the
unlawful aggression of the accused, moreso, to retaliate.
Moreover, what defense could an innocent 1 1/2 years old Ramil
Tagpis, Jr. put up against the armed and superior strength of the
accused, but to leave his fate to God.
The circumstance that the attack was sudden and unexpected and
the victims, unarmed, were caught totally unprepared to defend
themselves qualifies the crime committed as murder. x x x.
After the incident, the accused Rosendo Rebucan immediately
went to the house of Brgy. Chairman, Renerio Arcenal at sitio
Palali, Brgy. Canlampay, Carigara, Leyte, to surrender, because he
killed Felipe Lagera and Ramil Tagpis, Jr. The Brgy. Chairman
instructed his Brgy. Human Rights Action Officer, Ricky Irlandez
and his Chief Tanod, Pedro Oledan to bring Rosendo to the Police
Authorities of Carigara, Leyte. This fact of voluntary surrender was
corroborated by Police Officer Arnulfo Alberca, who presented to
Court the police blotter, under entry No. 5885, dated November 6,
2002, of the PNP, Carigara, Leyte.
Clearly, the act of the accused in surrendering to the authorities
showed his intent to submit himself unconditionally to them, to
save the authorities from trouble and expenses that they would
incur for his capture. For this reason, he has complied with the
requisites of voluntary surrender as a mitigating circumstance[.] x x
x.
From the circumstances obtaining, the mitigating circumstances of
admission and voluntary surrender credited to the accused are not
sufficient to offset the aggravating circumstances of: a) evident
premeditation; b) treachery (alevosia); c) dwelling – the crime was
committed at the house of the victim; d) intoxication – the accused
fueled himself with the spirit of London gin prior to the commission
of the crime; e) abuse of superior strength; and f) minority, in so far
as the child victim, Ramil Tagpis, Jr. is concerned, pursuant to
Article 63 of the Revised Penal Code as amended. x x x.
xxxx
In the mind of the Court, the prosecution has substantially
established the quantum of evidence to prove the guilt of the
accused beyond reasonable doubt.30
The RTC, thus, decreed:
WHEREFORE, premises considered, pursuant to Sec. 6, Art. 248
of the Revised Penal Code, as amended and further amended by
R.A. 7659 (The Death Penalty Law), the Court found accused
ROSENDO REBUCAN y LAMSIN, GUILTY beyond reasonable
doubt of the crime of DOUBLE MURDER charged under the
information and sentenced to suffer the maximum penalty of
DEATH, and to pay civil indemnity to the heirs of Felipe Lagera
and Ramil Tagpis, Jr. in the amount of Seventy-Five Thousand
(₱75,000.00) Pesos for each victim and moral damages in the
amount of Seventy-Five Thousand (₱75,000.00) Pesos to each;
and
Pay the Cost.31 (Emphases ours.)
The case was originally elevated to this Court on automatic review
and the same was docketed as G.R. No. 161706.32 The parties,
thereafter, submitted their respective appeal briefs.33 In our
Resolution34 dated July 19, 2005, we ordered the transfer of the
case to the Court of Appeals for appropriate disposition, pursuant
to our ruling in People v. Mateo.35 Before the appellate court, the
case was docketed as CA-G.R. CR.-H.C. No. 00282.
CRIM LAW FINALS I ACJUCO 33
The Court of Appeals promulgated the assailed decision on August
21, 2007, modifying the judgment of the RTC. The appellate court
adopted the position of the Office of the Solicitor General (OSG)
that the felonious acts of the accused-appellant resulted in two
separate crimes of murder as the evidence of the prosecution
failed to prove the existence of a complex crime of double murder.
The Court of Appeals subscribed to the findings of the RTC that
the killing of Felipe Lagera was attended by the aggravating
circumstances of treachery and evident premeditation. With
respect to the ensuant mitigating circumstances, the Court of
Appeals credited the circumstance of voluntary surrender in favor
of the accused-appellant, but rejected the appreciation of
intoxication, immediate vindication of a grave offense and
voluntary confession. As for the death of Ranil, the appellate court
also ruled that the same was attended by the aggravating
circumstance of treachery and the mitigating circumstance of
voluntary surrender. Thus, the Court of Appeals disposed of the
case as follows:
WHEREFORE, IN VIEW OF THE FOREGOING, the Decision
appealed from is hereby MODIFIED. As modified, accused-
appellant is hereby adjudged guilty beyond reasonable doubt for
two (2) counts of murder for the deaths of Felipe Lagera and Ramil
Tagpis, Jr., and is hereby sentenced to suffer the penalty of
reclusion perpetua for each count of murder he has committed.
The award of civil indemnity is reduced to ₱50,000.00 for each
victim; the award of moral damages is likewise reduced to
₱50,000.00 for each victim. Further, exemplary damages in the
amount of ₱25,000.00 is awarded to the heirs of each victim.36
The accused-appellant filed a Notice of Appeal37 of the above
decision. In a Resolution38 dated February 6, 2008, the Court of
Appeals ordered that the records of the case be forwarded to this
Court.
On June 18, 2008, we resolved to accept the appeal and required
the parties to file their respective supplemental briefs, if they so
desire, within thirty days from notice.39 Thereafter, both parties
manifested that they were adopting the briefs they filed before the
Court of Appeals and will no longer file their respective
supplemental briefs.40
The accused-appellant sets forth the following assignment of
errors:
I the accused must survive the test of reason for it is only when the
THE COURT A QUO GRAVELY ERRED IN FINDING THE
ACCUSED-APPELLANT GUILTY BEYOND REASONABLE
DOUBT FOR THE CRIME OF MURDER.
II
THE COURT A QUO GRAVELY ERRED IN FAILING TO
APPRECIATE THE MITIGATING CIRCUMSTANCE OF
IMMEDIATE VINDICATION OF A GRAVE OFFENSE IN FAVOR
OF THE ACCUSED-APPELLANT.
III
THE COURT A QUO GRAVELY ERRED IN FAILING TO
APPRECIATE INTOXICATION AS A MITIGATING
CIRCUMSTANCE IN FAVOR OF THE ACCUSED-APPELLANT.
IV
THE COURT A QUO GRAVELY ERRED IN APPRECIATING THE
AGGRAVATING CIRCUMSTANCES OF DWELLING, ABUSE OF
SUPERIOR STRENGTH AND MINORITY.41
The accused-appellant admits to the killing of Felipe but denies
that the crime was committed with treachery and evident
premeditation. He argues that there is doubt as to the presence of
treachery given that there was no eyewitness who categorically
stated that the accused-appellant attacked the victims suddenly,
thereby depriving them of the means to defend themselves. He
brushed aside the testimony of Carmela Tagpis, insisting that she
was not in a position to say that there was no altercation between
him and Felipe, which could have put the latter on guard. The
prosecution allegedly failed to prove that the accused-appellant
intentionally waited for the time when Felipe would be defenseless
before initiating the attack. The fact that he voluntarily surrendered
to the barangay chairperson and the police and admitted the
killings supposedly showed that it was not intentional and he did
not consciously adopt the method of attack upon the two victims.
The accused-appellant similarly rejects the finding of the RTC that
there was evident premeditation on his part since the prosecution
failed to prove that he deliberately planned the killing of Felipe.
The accused-appellant maintains that at the time of the incident,
he was still unable to control his anger as he just recently
discovered that his wife was sexually abused by Felipe and the
latter’s son, Timboy. He also avers that he was a bit intoxicated
when the crime took place so that he was not in total control of
himself. He claims that he is not a habitual drinker and that he
merely consumed the alcohol prior to the incident in order to
appease his friend. He likewise argues that the aggravating
circumstance of dwelling should not have been appreciated
inasmuch as the same was not alleged in the information.
Moreover, the aggravating circumstance of abuse of superior
strength cannot be appreciated since he did not deliberately harm
or attack Ranil Tagpis, Jr. and the death of the latter was
accidental. The accused-appellant prays that he should only be
found guilty of the crime of homicide with the mitigating
circumstances of voluntary surrender, immediate vindication of a
grave offense and intoxication.
The appeal lacks merit.
Basic is the rule that in order to affirm the conviction of an accused
person, the prosecution must establish his guilt beyond reasonable
doubt. Proof beyond reasonable doubt does not mean such a
degree of proof as, excluding possibility of error, produces
absolute certainty. Only moral certainty is required, or that degree
of proof which produces conviction in an unprejudiced mind.42
Ultimately, what the law simply requires is that any proof against
conscience is satisfied that the perpetrator of the crime is the
person on trial should there be a judgment of conviction.43 A
finding of guilt must rest on the strength of the prosecution’s own
evidence, not on the weakness or even absence of evidence for
the defense.44
In the instant case, the evidence of the prosecution established the
fact that the killings of Felipe and Ranil were attended by
treachery, thus qualifying the same to murder.
According to Article 24845 of the Revised Penal Code, as
amended, any person who shall kill another shall be guilty of
murder if the same was committed with the attendant circumstance
of treachery, among other things, and that the situation does not
fall within the provisions of Article 246.46 There 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.47 The essence of treachery is a deliberate and
sudden attack, offering an unarmed and unsuspecting victim no
chance to resist or to escape. There is treachery even if the attack
is frontal if it is sudden and unexpected, with the victims having no
opportunity to repel it or defend themselves, for what is decisive in
CRIM LAW FINALS I ACJUCO 34

treachery is that the execution of the attack made it impossible for

the victims to defend themselves or to retaliate.48 Q: Were you able to see that long bolo?

In the case at bar, the RTC gave more weight to the testimony of A: Yes sir.
Carmela Tagpis in establishing the presence of treachery in the
manner with which the accused-appellant carried out the violent xxxx
killings of Felipe and Ranil. In this regard, we reiterate the
established doctrine articulated in People v. De Guzman49 that: Q: Was your grandfather armed that time?

In the resolution of the factual issues, the court relies heavily on A: He has his own bolo but he placed it on the holder of the long
the trial court for its evaluation of the witnesses and their credibility. bolo.
Having the opportunity to observe them on the stand, the trial
judge is able to detect that sometimes thin line between fact and Q: Was that long bolo used by your grandfather?
prevarication that will determine the guilt or innocence of the
accused. That line may not be discernible from a mere reading of A: No sir.
the impersonal record by the reviewing court. x x x.50
xxxx
Moreover, we have oftentimes ruled that the Court will not interfere
with the judgment of the trial court in determining the credibility of Q: How far were you to the incident, when this hacking incident
witnesses unless there appears in the record some fact or happened?
circumstance of weight and influence which has been overlooked
or the significance of which has been misinterpreted.51 A: (witness indicating a distance of about 4 meters).

Carmela testified as follows: xxxx

PROS. TORREVILLAS: COURT:

Q: Do you have a brother named Ranil Tagpis, Jr? Cross.

A: Yes sir. ATTY. DICO:

Q: Where is he now? Q: You stated awhile ago that your brother Jericho, Bitoy [Ranil]
and you and your papo Felipe were at the house of your papo
A: He is dead. Felipe?

Q: Do you know the circumstance of his death? A: Yes sir.

A: Yes sir. Q: You mean to say that there were no other persons present in
that house other than you four (4)?
Q: Why did he die?
A: Yes sir.
A: Because he was hacked by Bata Endong.
xxxx
Q: Do you know also your grandfather Felipe Lagera, Jr?
Q: So, you were playing that toy camera inside the room of your
A: Yes sir. papo Felipe?

Q: Where is he now? A: No sir, I was playing then at the side of the chicken cage.

A: He is dead also. Q: Is that chicken cage was inside or outside the house of your
papo Felipe’s house?
Q: Why did he die?
A: Inside the house of my grandfather.
A: Because he was hacked by Bata Endong.
xxxx
Q: Is the person your Bata Endong here in the court room who
hacked your brother and your grandfather? Q: Was your brother Ranil carried by your grandfather Felipe?

A: Yes sir. A: Yes sir.

COURT INTERPRETER: He was carried by his right arm.

Witness pointing to a person when asked of his name identified Q: So, you mean to say that your uncle Endo went inside, it was so
himself as Rosendo Rebucan. sudden?

xxxx A: Yes sir.

Q: What instrument did the accused use in killing your [brother Q: Because it was sudden, you were not able to do anything, what
and] your grandfather? did you do?

A: Long bolo, sundang. A: I then cried at that time.

CRIM LAW FINALS I ACJUCO 35
xxxx
Q: But you are sure that when your uncle Endo entered as you
said that your brother Ramil was carried by your papo Felipe?
A: Yes sir.
Q: Did your uncle Endo and your papo Felipe fight or was there an
altercation?
A: No sir.52
As can be gleaned from the above testimony, Carmela firmly and
categorically pointed to the accused-appellant as the person who
entered the house of Felipe. She clearly stated that the attack was
not preceded by any fight or altercation between the accused-
appellant and Felipe. Without any provocation, the accused-
appellant suddenly delivered fatal hacking blows to Felipe. The
abruptness of the unexpected assault rendered Felipe defenseless
and deprived him of any opportunity to repel the attack and
retaliate. As Felipe was carrying his grandson Ranil, the child
unfortunately suffered the same fatal end as that of his
grandfather. In the killing of Ranil, the trial court likewise correctly
appreciated the existence of treachery. The said circumstance may
be properly considered, even when the victim of the attack was not
the one whom the defendant intended to kill, if it appears from the
evidence that neither of the two persons could in any manner put
up defense against the attack or become aware of it.53
Furthermore, the killing of a child is characterized by treachery
even if the manner of assault is not shown. For the weakness of
the victim due to his tender years results in the absence of any
danger to the accused.54
Although the accused-appellant painted a contrasting picture on
the matter, i.e., that the attack was preceded by a fight between
him and Felipe, the Court is less inclined to be persuaded by the
accused-appellant’s version of the events in question. Indeed, the
Court has ruled that the testimony of children of sound mind is
"more correct and truthful than that of older persons" and that
"children of sound mind are likely to be more observant of
incidents which take place within their view than older persons,
and their testimonies are likely more correct in detail than that of
older persons."55 In the instant case, Carmela was cross-
examined by the defense counsel but she remained steadfast and
consistent in her statements. Thus, the Court fails to see any
reason to distrust the testimony of Carmela.
Incidentally, the testimony of the accused-appellant not only
contradicts that of Carmela, but some portions thereof do not also
conform to the documentary evidence admitted by the trial court.
The testimony of Dr. Profetana and the sketch of the human
anatomy of Felipe, which was marked as Exhibit B for the
prosecution, stated that Felipe sustained three hacking wounds
that were found on his right arm, at his "nose maxillary area"56
and on his left arm. On the other hand, the accused-appellant
testified that he delivered four hacking blows on Felipe, the three
of which landed on the left side of the victim’s abdomen, the right
side of his neck and on his upper left arm. When confronted on the
said apparently conflicting statements, the accused-appellant did
not offer any explanation.57
Therefore, on the strength of the evidence of the prosecution, we
sustain the ruling of the RTC and the Court of Appeals that the
circumstance of treachery qualified the killings of Felipe and Ranil
to murder.
The Court finds erroneous, however, the trial court’s and the Court
of Appeals’ appreciation of the aggravating circumstance of evident
premeditation. For evident premeditation to aggravate a crime,
there must be proof, as clear as the evidence of the crime itself, of
the following elements: (1) the time when the offender determined
to commit the crime; (2) an act manifestly indicating that he clung
to his determination; and (3) sufficient lapse of time, between
determination and execution, to allow himself to reflect upon the
consequences of his act.58 It is not enough that evident
premeditation is suspected or surmised, but criminal intent must be
evidenced by notorious outward acts evidencing determination to
commit the crime. In order to be considered an aggravation of the
offense, the circumstance must not merely be "premeditation"; it
must be "evident premeditation."59 In the case at bar, the
evidence of the prosecution failed to establish any of the elements
of evident premeditation since the testimonies they presented
pertained to the period of the actual commission of the crime and
the events that occurred thereafter. The prosecution failed to
adduce any evidence that tended to establish the exact moment
when the accused-appellant devised a plan to kill Felipe, that the
latter clung to his determination to carry out the plan and that a
sufficient time had lapsed before he carried out his plan.
Likewise, the trial court erred in appreciating the aggravating
circumstances of abuse of superior strength, dwelling, minority and
intoxication. When the circumstance of abuse of superior strength
concurs with treachery, the former is absorbed in the latter.60 On
the other hand, dwelling, minority and intoxication cannot be
appreciated as aggravating circumstances in the instant case
considering that the same were not alleged and/or specified in the
information that was filed on January 23, 2003. Under the Revised
Rules of Criminal Procedure, which took effect on December 1,
2000, a generic aggravating circumstance will not be appreciated
by the Court unless alleged in the information. This requirement is
laid down in Sections 8 and 9 of Rule 110, to wit:
SEC. 8. Designation of the offense. - The complaint or information
shall state the designation of the offense given by the statute, aver
the acts or omissions constituting the offense, and specify its
qualifying and aggravating circumstances. If there is no
designation of the offense, reference shall be made to the section
or subsection of the statute punishing it.
SEC. 9. Cause of the accusation. - The acts or omissions
complained of as constituting the offense and the qualifying and
aggravating circumstances must be stated in ordinary and concise
language and not necessarily in the language used in the statute
but in terms sufficient to enable a person of common
understanding to know what offense is being charged as well as its
qualifying and aggravating circumstances and for the court to
pronounce judgment.
With regard to the conflicting rulings of the RTC and the Court of
Appeals vis-à-vis the nature of crimes committed, we agree with
the appellate court that the accused-appellant should be held liable
for two (2) separate counts of murder, not the complex crime of
double murder.
Article 48 of the Revised Penal Code provides that "[w]hen a single
act constitutes two or more grave or less grave felonies, or when
an offense is a necessary means for committing the other, the
penalty for the most serious crime shall be imposed, the same to
be applied in its maximum period." There are, thus, two kinds of
complex crimes. The first is known as compound crime, or when a
single act constitutes two or more grave or less grave felonies. The
second is known as complex crime proper, or when an offense is a
necessary means for committing the other.61
The Court finds that there is a paucity of evidence to prove that the
instant case falls under any of the two classes of complex crimes.
The evidence of the prosecution failed to clearly and indubitably
establish the fact that Felipe and Ranil were killed by a single fatal
hacking blow from the accused-appellant. The eyewitness
testimony of Carmela did not contain any detail as to this material
fact. To a greater degree, it was neither proven that the murder of
CRIM LAW FINALS I ACJUCO 36
Felipe was committed as a necessary means for committing and/or
facilitating the murder of Ranil and vice versa. As the factual milieu
of the case at bar excludes the application of Article 48 of the
Revised Penal Code, the accused-appellant should be made liable
for two separate and distinct acts of murder. In the past, when two
crimes have been improperly designated as a complex crime, this
Court has affirmed the conviction of the accused for the
component crimes separately instead of the complex crime.62
In the determination of the penalty to be imposed on the accused-
appellant, we uphold the trial court’s ruling that the mitigating
circumstance of voluntary surrender should be appreciated. For
voluntary surrender to mitigate criminal liability, the following
elements must concur: (1) the offender has not been actually
arrested; (2) the offender surrenders himself to a person in
authority or to the latter’s agent; and (3) the surrender is
voluntary.63 To be sufficient, the surrender must be spontaneous
and made in a manner clearly indicating the intent of the accused
to surrender unconditionally, either because they acknowledge
their guilt or wish to save the authorities the trouble and the
expense that will necessarily be incurred in searching for and
capturing them.64 The accused-appellant has duly established in
this case that, after the attack on Felipe and Ranil, he surrendered
unconditionally to the barangay chairperson and to the police on
his own volition and before he was actually arrested. The
prosecution also admitted this circumstance of voluntary surrender
during trial.
We reject, however, the accused-appellant’s contention that the
trial court erred in failing to appreciate the mitigating circumstances
of intoxication and immediate vindication of a grave offense.
The third paragraph of Article 15 of the Revised Penal Code
provides that the intoxication of the offender shall be taken into
consideration as a mitigating circumstance when the offender has
committed a felony in a state of intoxication, if the same is not
habitual or subsequent to the plan to commit said felony; but when
the intoxication is habitual or intentional, it shall be considered as
an aggravating circumstance. The Court finds that the accused-
appellant is not entitled to the mitigating circumstance of
intoxication since his own testimony failed to substantiate his claim
of drunkenness during the incident in question. During his cross-
examination, the accused-appellant himself positively stated that
he was only a bit tipsy but not drunk when he proceeded to the
house of Felipe.65 He cannot, therefore, be allowed to make a
contrary assertion on appeal and pray for the mitigation of the
crimes he committed on the basis thereof.
As regards the mitigating circumstance of immediate vindication of
a grave offense, the same cannot likewise be appreciated in the
instant case. Article 13, paragraph 5 of the Revised Penal Code
requires that the act be "committed in the immediate vindication of
a grave offense to the one committing the felony (delito), his
spouse, ascendants, descendants, legitimate, natural or adopted
brothers or sisters, or relatives by affinity within the same
degrees." The established rule is that there can be no immediate
vindication of a grave offense when the accused had sufficient time
to recover his equanimity.66 In the case at bar, the accused-
appellant points to the alleged attempt of Felipe and Timboy
Lagera on the virtue of his wife as the grave offense for which he
sought immediate vindication. He testified that he learned of the
same from his stepson, Raymond, on November 2, 2002. Four
days thereafter, on November 6, 2002, the accused-appellant
carried out the attack that led to the deaths of Felipe and Ranil. To
our mind, a period of four days was sufficient enough a time within
which the accused-appellant could have regained his composure
and self-control. Thus, the said mitigating circumstance cannot be
credited in favor of the accused-appellant.
Article 248 of the Revised Penal Code, as amended, prescribes
the penalty of reclusion perpetua to death for the crime of murder.
In this case, apart from the qualifying circumstance of treachery,
the prosecution failed to prove the existence of any other
aggravating circumstance in both the murders of Felipe and Ranil.
On the other hand, as the presence of the lone mitigating
circumstance of voluntary surrender was properly established in
both instances, Article 63, paragraph 3 of the Revised Penal
Code67 mandates that the proper penalty to be imposed on the
accused-appellant is reclusion perpetua for each of the two counts
of murder.
Anent the award of damages, when death occurs due to a crime,
the following may be recovered: (1) civil indemnity ex delicto for
the death of the victim; (2) actual or compensatory damages; (3)
moral damages; (4) exemplary damages; (5) attorney's fees and
expenses of litigation; and (6) interest, in proper cases.68
The RTC awarded in favor of the heirs of Felipe and Ranil the
amounts of ₱75,000.00 as civil indemnity and ₱75,000.00 as moral
damages for each set of heirs. The Court of Appeals, on the other
hand, reduced the aforesaid amounts to ₱50,000.00 and further
awarded the amount of ₱25,000.00 as exemplary damages to the
heirs of the victim.
Civil indemnity is mandatory and granted to the heirs of the victim
without need of proof other than the commission of the crime.69
Similarly, moral damages may be awarded by the court for the
mental anguish suffered by the heirs of the victim by reason of the
latter’s death. The purpose for making such an award is not to
enrich the heirs of the victim but to compensate them for injuries to
their feelings.70 The award of exemplary damages, on the other
hand, is provided under Articles 2229-2230 of the Civil Code, viz:
Art. 2229. Exemplary or corrective damages are imposed, by way
of example or correction for the public good, in addition to the
moral, temperate, liquidated or compensatory damages.
Art. 2230. In criminal offenses, exemplary damages as a part of
the civil liability may be imposed when the crime was committed
with one or more aggravating circumstances. Such damages are
separate and distinct from fines and shall be paid to the offended
party.
In People v. Dalisay,71 the Court clarified that "[b]eing corrective in
nature, exemplary damages, therefore, can be awarded, not only
in the presence of an aggravating circumstance, but also where
the circumstances of the case show the highly reprehensible or
outrageous conduct of the offender. In much the same way as
Article 2230 prescribes an instance when exemplary damages
may be awarded, Article 2229, the main provision, lays down the
very basis of the award."72
Thus, we affirm the Court of Appeals’ award of ₱50,000.00 as civil
indemnity and ₱50,000.00 as moral damages. The award of
exemplary damages is, however, increased to ₱30,000.00 in
accordance with the prevailing jurisprudence. As held in People v.
Combate,73 when the circumstances surrounding the crime call for
the imposition of reclusion perpetua only, the proper amounts that
should be awarded are ₱50,000.00 as civil indemnity, ₱50,000.00
as moral damages and ₱30,000.00 as exemplary damages.
In lieu of actual or compensatory damages, the Court further
orders the award of ₱25,000.00 temperate damages to the heirs of
the two victims in this case. The award of ₱25,000.00 for
temperate damages in homicide or murder cases is proper when
no evidence of burial and funeral expenses is presented in the trial
court. Under Article 2224 of the Civil Code, temperate damages
may be recovered, as it cannot be denied that the heirs of the
victim suffered pecuniary loss, although the exact amount was not
proven.74
CRIM LAW FINALS I ACJUCO 37

WHEREFORE, the Court hereby AFFIRMS with MODIFICATION

the Decision dated August 21, 2007 of the Court of Appeals in CA-
G.R. CR.-H.C. No. 00282. The accused-appellant Rosendo
Rebucan y Lamsin is found GUILTY of two (2) counts of murder for
the deaths of Felipe Lagera and Ranil Tagpis, Jr. and is hereby
sentenced to suffer the penalty of reclusion perpetua for each
count. The accused-appellant is further ordered to indemnify the
respective heirs of the victims Felipe Lagera and Ranil Tagpis, Jr.
the amounts of ₱50,000.00 as civil indemnity, ₱50,000.00 as moral
damages, ₱30,000.00 as exemplary damages and ₱25,000.00 as 1. INSULT TO PUBLIC AUTHORITIES
temperate damages for each victim, plus legal interest on all
damages awarded at the rate of 6% from the date of the finality of G.R. No. L-35156 November 20, 1981
this decision. No costs.
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
SO ORDERED. vs.
FLORO RODIL defendant-appellant.

MAKASIAR, J.:

Accused Floro Rodil was found guilty, beyond reasonable doubt, of

the crime of murder by the Circuit Criminal Court of Pasig, Rizal,
for the death of Lt. Guillermo Masana of the Philippine
Constabulary. Accordingly, he was sentenced to death, to
indemnify the heirs of the deceased in the amount of P12,000.00,
to pay the amount of P10,000.00 as moral damages and another
P10,000.00 as exemplary damages, and to pay the costs.

The information alleges:

That on or about April 24, 1971, in the Municipality of Indang,

Province of Cavite, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, armed with a double-
bladed dagger, with evident premeditation and treachery, and with
intent to kill, did, then and there, wilfully, unlawfully, and feloniously,
attack and stab PC Lt. Guillermo Masana while the latter was in
the performance of his official duties, inflicting upon him stab
wounds on the different parts of his body which directly caused his
death.

Contrary to law

From the evidence adduced by the prosecution, We glean the

following facts:

At about 1:00 o'clock in the afternoon of April 24, 1971, the

deceased, PC Lt. Guillermo Masana together with PC soldier
Virgilio Fidel, Philippine Coast Guard serviceman Ricardo Ligsa
and Patrolman Felix Mojica of Indang, Cavite, was having lunch
inside a restaurant in front of the Indang market (pp. 2,3, t.s.n.,
Oct. 30, 1971; pp. 10, 19, t.s.n., Nov. 22, 1971; p. 21, t.s.n., Jan.
20, 1972). While they were eating, they saw, through the glass
panel of the restaurant, appellant outside the restaurant blowing
his whistle. Their attention having been drawn to what appellant
was doing, Lt. Masana then in civilian clothing, accompanied by
PC soldier Virgilio Fidel, went out of the restaurant, approached
appellant and asked the latter, after Identifying himself as a PC
officer, whether the gun that was tucked in his waist had a license.
Instead of answering the question of Lt. Masana appellant moved
one step backward and attempted to draw his gun. PC soldier
Virgilio Fidel immediately grabbed appellant's gun from appellant's
waist and gave it to Lt. Masana After that, Lt. Masana told the
appellant to go inside the restaurant. PC soldier Virgilio Fidel
followed. Lt. Masana and the appellant occupied a separate table
about one and one-half (1 1/2) meters from the table of Lt.
Masana's three companions — Fidel, Ligsa and Mojica (p. 10,
t.s.n., Nov. 22, 1971). After the two were already seated, Lt.
Masana placed appellant's gun on the table. After that Lt. Masana
pulled out a piece of coupon bond paper from his pocket and wrote
thereon the receipt for the gun, and after signing it, he asked
appellant to countersign the same, but appellant refused to do so.
CRIM LAW FINALS I ACJUCO 38
Instead, he asked Lt. Masana to return the gun to him. Lt. Masana
rejected appellant's plea, telling, the latter that they would talk the
matter over in the municipal building of Indang, Cavite. When Lt.
Masana was about to stand up, appellant suddenly pulled out a
double-bladed dagger and with it he stabbed Lt. Masana several
times, on the chest and stomach causing his death several hours
thereafter (pp. 4, 5, 6, 7, 8, t.s.n., Oct. 30, 1971; pp. 10, 11, 12,
t.s.n., Nov. 22, 1971).
While the stabbing incident was taking place, the three
companions of Lt. Masana — PC soldier Virgilio Fidel, Coast
Guard Ricardo Ligsa and policeman Felix Mojica — who were all
seated at a separate table about one and one-half (1 1/2) meters
away from that occupied by the accused and Lt. Masana stood up
to assist Lt. Masana but Chief of Police Primo Panaligan of Indang,
Cavite, who happened to be taking his lunch in the same
restaurant, was quicker than any of them in going near the
combatants and embraced and/or grabbed the accused from
behind, and thereafter wrested the dagger from the accused-
appellant. Immediately thereafter, the Chief of Police brought the
accused to the municipal building of Indang, Cavite (p. 8, t.s.n.,
Oct. 30, 1971; pp. 19-20, t.s.n., Nov. 22, 1971; pp. 26, 28, t.s.n.,
Jan. 20, 1972), while the companions of Lt. Masana brought the
latter to the V. Luna Hospital in Quezon City where he expired
several hours later as a result of the stab wounds inflicted by the
accused (pp. 21, 22, t.s.n., Nov. 22, 1971). Dr. Felicisimo del
Rosario, Medico-Legal Officer of the Armed Forces of the
Philippines, conducted an autopsy of the cadaver of Lt. Masana
and made the following findings, which are embodied in his
Report, Exhibits "D" and "D-1 " (pp. 88-89, rec.), and which reads
as follows:
Postmortem findings.
General:
Fairly developed and nourished male subject in rigor mortis with
postmortem lividity over the dependent portions of the body. Pupils
are dilated. Finger and toe tips are pale. There is an exploratory
laparotomy incision at the abdomen, measuring 21 cm. long, 3 cm.
left of the anterior midline, with eighteen (18) stitches applied.
There are surgical incisions at the left and right abdomen,
measuring 2 cm. long, 9 cm. from the anterior midline and 2 cm.
long, 6.5 cm. from the anterior midline with two (2) stitches applied
and a rubber drain sticking out of each, respectively.
TRUNK:
(1) Stab wound, left chest, measuring 0.9 by 0.4 cm., 5 cm.
from the anterior midline, 128 cm. above the heel, 1 cm. deep,
directed posterior wards and slightly upwards, passing superficially
between muscles and tissues.
(2) Stab wound, left chest, measuring 1.2 by 0.4 cm., 9 cm.
from the anterior midline, 121 cm. above the heel, 5.5. cm. deep,
directed posterior wards, downwards and to the left, lacerating the
muscles at the 4th intercostal space.
(3) Stab wound, abdomen, measuring 0.9 by 0.2 cm. just left
of the anterior midline, 96 cm. above the heel 11 cm. deep,
directed posterior wards, upwards and to the left, perforating the
greater curvature of the stomach and the gastric vessels, grazing
the liver, perforating the diaphragm and infero-medial border of the
lower lobe of the right lung.
(4) Impact abrasion, right scapular region, measuring 2 by
0.2 cm., 12 cm. from the posterior midline, 127 cm. above the heel.
UPPER EXTREMITIES:
(5) Incised wound, anterior aspect of the distal third of the
left arm, measuring 3 by 0.5 cm., just medial to its anterior midline.
(6) Incised wound, posterior aspect of the proximal phalange
of the right index finger, measuring 1 by 0.2 cm., just medial to its
posterior midline.
Five hundred (500) cc. blood and blood clots accumulated in the
thoracic cavity.
There are four (4) sutures applied at a lacerated wound at the
greater curvature of the stomach.
There is nothing remarkable in the unaffected organs internally.
REMARKS:
Cause of death is cardio-respiratory arrest due to severe shock
and intrathoracic hemorrhage as a result of multiple stab wounds
of the body, perforating the stomach, gastric vessels, liver,
diaphragm and lower lobe of the right lung.
Claiming self-defense, the accused, on the other hand, maintains
and relies on the following facts:
At about 1: 00 o'clock in the afternoon of April 24, 1971, the
accused and his wife were in a restaurant near the market place of
Indang, Cavite, in order to take their lunch. They had just come
from Mandaluyong, Rizal where they reside (pp. 21, 22, t.s.n., Dec.
10, 1971). Inside the restaurant, the accused saw three persons to
his right, eating, while to his left he saw a person whom he later
learned to be Lt. Guillermo Masana drinking beer alone. While the
accused and his wife were waiting for the food to be served, Lt.
Masana approached him and asked him whether he was Floro
Rodil and whether he was a member of the Anti- Smuggling Unit.
After receiving an affirmative answer, Lt. Masana invited the
accused to join him in his table. The accused accepted the
invitation so the two moved over to the officer's table where the
deceased offered beer to the accused who, however, refused
saying he was still hungry. In the course of their conversation, Lt.
Masana told the accused not to report any matter about smuggling
to the PC. The accused informed the officer that he had not
reported any smuggling activity to the authorities. Lt. Masana then
asked the accused for his identification card as a member of the
Anti-Smuggling Unit, which the latter did by showing his ID card,
Exhibit " 1 ", bearing his picture and indicating that he was an
officer of the Anti-Communist League of the Philippines (pp. 62-68,
t.s.n., Dec. 7, 1971).
Thereupon, Lt. Masana told the accused that the latter's ID was
fake, and after the accused insisted that it was genuine, Lt.
Masana tried to take it away from the accused when the latter was
about to put it back in his pocket. Because of his refusal to give his
Id card to Lt. Masana the latter got mad and, in an angry tone of
voice, demanded: "Will you give it to me or not?" (P. 7 1, Ibid). Still
the accused refused to surrender his ID to Lt. Masana Thereupon,
the latter pulled a gun from his waist and hit the accused on the
head with its handle two (2) time Immediately, blood gushed from
his head and face. When Lt. Masana was about to hit the accused
for the third time, the latter parried the right hand of the officer,
pulled his "pangsaksak" and stabbed the officer two or three times
and then pushed him away from him and ran out of the restaurant
(pp. 74,75,79, Ibid).
The accused went in the direction of the municipal building of
Indang, Cavite, where he intended to surrender to the authorities.
But on his way, he met Primo Panaligan, the Chief of Police of
Indang, Cavite. The Chief of Police asked him why his head and
face were bloody and he answered that he was hit by Lt. Masana
on the head with a gun (pp. 86, 89, t.s.n., Ibid). If here upon, the
Chief of Police asked somebody to accompany the accused to the
CRIM LAW FINALS I ACJUCO 39
municipal building. Arriving there, one Victor, a policeman of
Indang, Cavite, accompanied him to Dr. Ruben Ochoa, whose
clinic was just across the street where the municipal building is
located (p. 9, t.s.n., Ibid; p. 4, t.s.n., Dec. 15, 1971). After he was
given first aid treatment, he was brought back by the Indang
policeman to the municipal, building where he was detained for
two days before he was picked up by the Philippine Constabulary
operatives and transferred to the 121th PC Headquarters in
Tagaytay City (pp. 90-91, t.s.n., Ibid; pp. 4, 39, 40, t.s.n., Dec. 10,
1971; p. 6, t.s.n., Dec. 15, 1971; p. 5, t.s.n., Jan. 20, 1972).
After due trial, the court a quo rendered a decision sentencing the
accused as heretofore stated.
I
Self-defense is an affirmative allegation that must be proven by
clear, sufficient, satisfactory and convincing evidence (People vs.
Libed 14 SCRA 410, 413; People vs. Mendoza, 13 SCRA 11, 17;
People vs. Solaña, 6 SCRA 60, 65-66; People vs. Davis, 1 SCRA
473; 477; People vs. Paras, 80 Phil. 149; 152; People vs. Berio 59
Phil. 533; 536; People vs. Gimena, 59 Phil. 509, 514). Moreover, to
prove justification, the accused must rely on the strength of his
own evidence and not on the weakness of that of the prosecution,
for even if it were weak, it could not be disbelieved after the
accused had admitted the killing (People vs. Llamera, 51 SCRA
48, 57; People vs. Talaboc, 30 SCRA 87; People vs. Navarro, 25
SCRA 491; 496; People vs. Solaña, 6 SCRA 60, 65-66; People vs.
Espenilla, 62 Phil. 264, 270; People vs. Apolinario, 58 Phil 586-
588; People vs. Ansoyon, 65 Phil. 7 7 2). The rationale for this
jurisprudence is that, having admitted the wounding or killing of the
victim, the accused must be held criminally liable for the crime
unless he establishes to the satisfaction of the court the fact of
legitimate self-defense.
In the case at bar, the accused contends that it was the deceased,
Lt. Guillermo Masana who committed unlawful aggression when
the latter hit him on his head with the handle of his gun after he
refused to surrender his (accused's) ID to him.
This claim does not merit belief.
The accused claims that after he refused to give his ID to the
deceased because the same was his and he also spent money for
it, the latter hit him with the handle of his (deceased's) gun. WE
cannot perceive how this refusal of the accused could have
provoked or enraged the deceased to the extent of initiating the
aggression by drawing his pistol and hitting the accused with its
butt, knowing that the accused was no longer armed after the
latter's gun had earlier been taken away from him. Besides, an
agent of authority, like the deceased, ordinarily is not authorized to
use force, except in an extreme case when he is attacked, or
subject to active resistance, and finds no other way to comply with
his duty or cause himself to be obeyed by the offender.
Furthermore, the records reveal an unrebutted fact to the effect
that the deceased was unarmed when the incident happened, he
being then on leave. As a matter of fact, he was then in civilian
clothing (pp. 29-30, t.s.n., Jan. 20, 1972). WE are, therefore,
inclined to believe that it was the accused who had every reason to
be resentful of the deceased and to be enraged after the deceased
refused to heed his plea that his gun be returned him; because he
might be prosecuted for illegal possession of firearms. Accordingly,
We are constrained to draw the inescapable conclusion that it was
the accused, not the deceased, who initiated the aggression which
ended in the fatal wounding of the deceased resulting in his death.
The accused further claims that he was hit twice by the deceased
before he parried the third blow. This claim is belied by the record.
During the trial, the court a quo asked the accused to show the
scar produced by the injuries inflicted by the deceased when he
refused to give his ID thus —
Court
Q Where is that scar?
(Witness showing his right side of the head to the Court)"
[pp. 86,88, t.s.n., Dec. 7, 1971].
Dr. Ruben Ochoa who treated the injuries of the accused
corroborated the foregoing testimony in his medical findings,
Exhibit "3", which reads:
Injuries:
(1) lacerated wound 1/2 inch, parietal region.
(2) lacerated wound, 1 1/2 inches, rt ear lobe
(3) contusion, right mastoid area [Exh. "3"; p. 116, rec] .
The record reveals that the deceased was a right-handed person
(pp. 76-77, t.s.n., Dec. 7, 1971). It also shows that before the
stabbing incident took place, the deceased and the accused were
facing each other. If that was the case, and considering that the
deceased was, according to the accused, holding the gun with his
right hand, why was the accused hit on the right side of his head
and and on his right ear lobe WE find that this particular claim of
the accused that it was the deceased who first hit him twice with
the handle of his gun before parrying the third blow and then
stabbing the latter is definitely belied not only by the location of the
scar but also by the medical finding of Dr. Ochoa aforequoted.
Indeed, if the protagonists were facing each other, and it appearing
that they were both right- handed (p. 13, t.s.n., Nov. 22, 1971), the
blow given by one, if not parried by the other, would perforce land
on the left, and not on the right, side of the body of the recipient of
the blow. WE, therefore, reject such claim for being improbable,
the same being contrary to the natural course of human behavior.
The fact of the matter, however, as testified to by state witness PC
soldier Virgilio Fidel, is that the victim parried with both hands the
thrust of the appellant with such force that appellant bumped his
head on the edge of the table causing blood to ooze from the
resulting injury on his head.
When the accused allegedly met the Chief of Police of Indang,
Cavite, on his way to the municipal building from the scene of the
stabbing incident purportedly to surrender to the authorities, he
claims that he told the Chief of Police that Lt. Masana hit him on
his head with the handle of his (Masana's) gun. On his return from
the clinic of Dr. Ochoa where his injuries were treated, he was
detained in the municipal building of Indang, Cavite for two days
before he was transferred to the Tagaytay PC Headquarters.
During all this time, he did not give any written statement, much
less inform any PC or other police agency that he stabbed Lt.
Masana in self-defense. It was only on July 8, 1971. after the lapse
of more than two and one-half (2 1/2) months that he claimed self-
defense during the preliminary investigation of the case before the
municipal judge of Indang, Cavite (pp. 44, t.s.n., Dec. 10, 1971). If
the accused had really acted in self-defense, he would surely have
so informed the Chief of Police at the first opportunity. He only
allegedly told the Chief of Police, who allegedly asked him why his
head and face were bloody, that Lt. Masana hit him with a gun. He
did not tell the Police Chief that he was surrendering for stabbing
the deceased in self-defense. This claim of the accused made
before the municipal judge of Indang, Cavite, on July 8, 1971
aforesaid constitutes an exculpatory statement made so long after
the crime was committed on April 24, 1971. Such claim does not
deserve credence since the same is obviously an afterthought,
which cannot overthrow the straightforward testimony of
prosecution witnesses PC soldier Virgilio Fidel and Coast Guard
CRIM LAW FINALS I ACJUCO 40
serviceman Ricardo Ligsa both disinterested and unbiased
witnesses, whose testimony as peace officers, in the absence of
any showing as to any motive that would impel them to distort the
truth, must be afforded full faith and credit as a whole.
The fact that the chief of police detained the accused that same
day after he was treated by Dr. Ochoa, confirms the testimony of
the state witnesses that the police was present during the incident
between the appellant and the victim and that the police chief
embraced appellant and grabbed the knife from appellant, whom
he thereafter brought to the municipal building.
II
Was the crime committed murder or homicide merely or murder or
homicide complexed with assault upon an agent of authority?
According to the Solicitor General, the crime committed was
murder because "it was established by the prosecution that during
the stabbing incident, appellant suddenly and without giving the
victim a chance to defend himself, stabbed the latter several times
with a dagger, inflicting upon mortal wounds on the chest and
stomach. ...Needless to say, such a sudden and unexpected attack
with a deadly weapon on an unarmed and unsuspecting victim,
which made it impossible for the latter to flee or defend himself
before the fatal blow is delivered, is alevosia or treachery" (p. 14,
Appellee's brief).
In support of his contention, the Solicitor General cited the cases
of U.S. vs. Cornejo (28 Phil. 475); People vs. Palomo (43 O.G. No.
10, 4190).
WE do not agree with the Solicitor General. Alevosia or treachery
is belied by the following testimony of Virgilio Fidel, star witness for
the prosecution:
COURT
Q What is the truth?
A The truth is that when I saw that Floro Rodil stabbed Lt.
Guillermo Masana, Masana parried him and his head (Rodil's
head) bumped on the edge of a table; that is why he sustained an
injury and blood oozed from his head (pp. 8-9, t.s.n., Jan. 20,
1972; emphasis supplied).
Then, on cross-examination, the same witness testified:
ATTY. MUÑOZ
Q You said that Floro Rodil's head was bumped on the
edge of a table and you saw blood oozing from his head, is that
correct?
A Yes, sir.
Q Who bumped the head of Rodil on the table?
A When Masana parried his stab with his hands he
accidentally bumped his head on the table.
Q Is it not a fact that Floro Rodil is much bigger than Lt.
Masana
A Yes, sir.
Q You mean, by simple parrying, Floro Rodil was pushed to the
extent that he bumped his head on the table?
A The force of Lt. Masana might have been strong in
parrying.
xxx xxx xxx
Q When the head of Rodil bumped on the table, was Lt.
Masana already stabbed?
A It could be that he was already stabbed or he was not yet
stabbed.
pp 30-31, 33, t.s.n., Jan. 20, 1972; emphasis supplied].
After a thorough analysis of the aforequoted portions of the
testimony of Virgilio Fidel, one of the prosecution witnesses, WE
can only conclude that the assailant and the victim were indeed
face to face when the stabbing took place. As such the attack was
not treacherous because the victim was able to ward off the same
with his hand. As a matter of fact, the force he used in warding off
the attack was so strong that the accused bumped his head on a
table nearby, causing injuries to him which necessitated medical
treatment. In short, the attack on the victim was made on the spur
of the moment. The suddenness of the attack does not by itself
suffice to support a finding of treachery (People vs. Torejas, et al.,
43 SCRA 158, 167). Besides, the record failed to show that the
accused made any preparation to kill his victim so as to insure the
commission of the crime, making it at the same time possible or
hard for the victim to defend himself or retaliate (People vs. Saez,
1 11 Phil. 546, 553, citing the case of People vs. Tumaob, 83 Phil.
738). Neither does it show that the accused employed means
directly and specially tending to insure the killing without risk to
himself. On the contrary, it shows that the accused was easily
within striking distance of his three companions, two of whom were
police officers. Furthermore, there was an altercation between the
accused and the victim about the confiscation by the latter of the
gun belonging to the former, and at the moment when the victim
was about to stand up, the accused drew a knife from his pocket
and with it stabbed the victim in the chest. Clearly, therefore, the
impelling motive for the attack by appellant on his victim was the
latter's performance of official duty, which the former resented. This
kind of evidence does not clearly show the presence of treachery
in the commission of the crime. Alevosia is not to be presumed, but
must be proved as conclusively as the act which it qualifies
(People vs. Abril, 51 Phil. 670, 675). This is so because in the
explicit language of the Revised Penal Code, alevosia or treachery
exists 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 [Art. 14, par. 16, Revised Penal Code].
While the evidence definitely demonstrated that appellant knew
because the victim, who was in civilian clothing, told him that he
was an agent of a person in authority; he cannot be convicted of
the complex crime of homicide with assault upon an agent of a
person in authority, for the simple reason that the information does
not allege the fact that the accused then knew that, before or at the
time of the assault, the victim was an agent of a person in
authority. The information simply alleges that appellant did attack
and stab PC Lt. Guillermo Masana while the latter was in the
performance of his official duties, ..." Such an allegation cannot be
an adequate substitute for the essential averment to justify a
conviction of the complex crime, which necessarily requires the
imposition of the maximum period of the penalty prescribed for the
graver offense. Like a qualifying circumstance, such knowledge
must be expressly and specifically averred in the information;
otherwise, in the absence of such allegation, the required
knowledge, like a qualifying circumstance, although proven, would
only be appreciated as a generic aggravating circumstance.
Applying this principle, the attack on the victim, who was known to
the appellant as a peace officer, could be considered only as
aggravating, being "in contempt or with insult to the public
authorities" (Par. 1, Art. XIV of the Revised Penal Code), or as an
CRIM LAW FINALS I ACJUCO 41
"insult or in disregard of the respect due the offended party on
account of his rank, ..." (par. 3, Art. XIV, Revised Penal Code).
It is essential that the accused must have knowledge that the
person attacked was a person in authority or his agent in the
exercise of his duties, because the accused must have the
intention to offend, injure, or assault the offended party as a person
in authority or agent of a person in authority (People vs. Villaseñor
35 SCRA 460 [19701, People vs. Rellin 72 Phil. 1038 [1947]; US
vs. Alvear et al., 35 Phil. 626 [1916]).
In the case of People vs. Balbar (21 SCRA 1119, Nov. 29, 1967), it
was held that failure to expressly alleged in the information that the
accused had knowledge that the person attacked was a person in
authority does not render the information defective so long as
there are facts alleged therein from which it can be implied that the
accused knew that the person attacked was a person in authority.
Thus, the information for Direct Assault upon a person in authority
reads as follows:
The undersigned Assistant Provincial Fiscal accuses Tiburcio
Balbar of the crime of Assault upon a Person in Authority,
committed as follows:
That on or about the 29th day of August, 1960, in Barrio Cumba,
Municipality of Lian, Province of Batangas, Philippines, and within
the jurisdiction of this Honorable Court, the abovenamed accused
did then and there wilfully, unlawfully and feloniously assault Miss
Ester Gonzales, a public school teacher in the school bonding of
Lian, duly qualified and appointed as such and while in the
performance of her official duties or on the occasion therefor, by
then and there pulling his dagger, embraced and kissed. and
repeatedly trying to embrace and kiss the said teacher, Miss Ester
Gonzales. That the crime was committed with the aggravating
circumstances of having committed it inside the school building
and during school classes.
Contrary to law.
And the ruling of the Court was:
Direct assault is committed 'by any person or persons who, without
a public uprising, ... shall attack, employ force, or seriously
intimidate or resist any person in authority or any of his agents,
while engaged in the performance of official duties, or on occasion
of such performance' (See Art. 148, Revised Penal Code).
By express provision of law (Com. Act No. 578, now part of Article
152 of the Revised Penal Code, as amended by Republic Act No.
1978), "teachers, professors, and persons charged with the
supervision of public or duly recognized private schools, colleges
and universities shall be deemed persons in authority, in applying
the provisions of article 148." This special classification is
obviously intended to give teachers protection, dignity, and respect
while in the performance of their official duties. The lower court,
however, dismissed the information on the ground that there is no
express allegation in the information that the accused had
knowledge that the person attacked was a person in authority. This
is clearly erroneous.
Complainant was a teacher. The information sufficiently alleges
that the accused knew that fact, since she was in her classroom
and engaged in the performance of her duties. He therefore knew
that she was a person in authority, as she was so by specific
provision of law. It matters not that such knowledge on his part is
not expressly alleged, complainant's status as a person in authority
being a matter of law and not of fact, ignorance thereof could not
excuse non- compliance on his part (Article 3, Civil Code). This
article applies to all kinds of domestic laws, whether civil or penal
(De Luna vs. Linatoc, 74 Phil 15) and whether substantive or
remedial (Zulueta vs. Zulueta, 1 Phil. 254) for reasons of
expediency, policy and necessity.
But, in the case of People vs. CFI of Quezon, Branch V (68 SCRA
305, Nov. 28, 1975), the information for Direct Assault reads:
That on or about the 17th day of January, 1974, at Barrio
Languyin, Municipality of Potillo, Province of Quezon, Philippines,
and within the jurisdiction of this Honorable Court, the above-
named accused, Ernesto Busto, Paulo Coralde, Dony Grande and
Jose Astjada each of whom was armed with a piece of wood,
except Paulo Coraide conspiring and confederating together and
mutually helping one another, did then and there wilfully, unlawfully
and feloniously attack, assault, box and strike with said pieces of
wood one Rufino Camonias a councilman of barrio Languyin of
said municipality, duly elected and qualified as such while said
councilman was engaged in the actual performance of his duties.
The trial court dismissed the same on the ground that:
Of importance in this case is the lack of allegation in the complaint
or in the information that the offended party was an agent of a
person in authority and that such fact was known to the accused.
The absence of such allegation is fatal in this case."
The People appealed to this Court through a petition for review on
certiorari.
This Court held that the fiscal's proper course of action is not a
petition for review on certiorari but the refiling of a valid information
against the accused, for the following considerations:
The Solicitor General in his comment of November 4, 1975 duly
observed that '(I)t is patent that the acquittal of the accused herein
is not on the merits. There is want of factual finding upon which
their conviction or acquittal could have been based.'
It need only be observed that contrary to the fiscal's contention, the
information was deficient in that it did not allege an essential
element of the crime of direct assault that the accused had
knowledge of or knew the position of authority held by the person
attacked, viz. that of a barrio councilman (and hence the agent of a
person in authority under Article 152 of the Revised Penal Code as
amended by Republic Act No. 1978) [See U.S. vs. Alvear 35 Phil.
626; People vs. Rellin 77 Phil. 1038; Vol. 11, Padilla's Revised
Penal Code, 10th Ed., p. 225].
What was held in People vs. Balbar 21 SCRA, 119,1123, cited by
the fiscal is that it is sufficient that the information alleged that the
accused knew the position of authority, held by the offended party,
in that case a public school teacher, then engaged in the
performance of her official duties, and that it is not necessary to
allege further that the accused also knew that such position was
that of a person in authority, since 'this is a matter of law' thus:
Complainant was a teacher. The information sufficiently alleges
that the accused knew that fact, since she was in her classroom
and engaged in the performance of her duties. He therefore knew
that she was a person in authority, as she was so by specific
provision of law. It matters not that such knowledge on `his part is
not expressly alleged, complainant's status as a person in authority
being a matter of law and not of fact, ignorance whereof could not
excuse non-compliance on his part (Article 3, Civil Code). This
article applies to all kinds of domestic laws, whether civil or penal
(De Luna vs. Linatoc, 74 Phil. 15) and whether substantive or
remedial (Zulueta vs. Zulueta, 1 Phil, 254) for reasons of
expediency, policy and necessity.
Since the 'decision' of acquittal was really a mere dismissal of the
information for failure to charge an offense and was not a decision
on the merits with factual findings as per the trial judge's own
CRIM LAW FINALS I ACJUCO 42
disavowal it is patent that the fiscal's proper course is not the
present petition but the refiling of a valid information against
respondents-accused, as herein indicated.
ACCORDINGLY, the petition is dismissed without prejudice to the
refiling of a valid information against respondents-accused as
hereinabove indicated (emphasis supplied).
The ruling in the aforementioned case of People vs. CFI of
Quezon, etc., supra, applies to the instant case; because the
information in the former is strikingly similar to the information in
the latter and does not allege facts from which inference can be
deduced that the accused knew that the person assaulted is a
person, or an agent of a person, in authority.
The aggravating circumstance of disregard of rank should be
appreciated because it is obvious that the victim, PC. Lt. Masana
Identified himself as a PC officer to the accused who is merely a
member of the Anti-Smuggling Unit and therefore inferior both in
rank and social status to the victim.
The term "rank" should be given its plain, ordinary meaning, and
as such, refers to a high social position or standing as a grade in
the armed forces (Webster's Third New International Dictionary of
the English Language Unabridged, p. 1881); or to a graded official
standing or social position or station (75 CJS 458); or to the order
or place in which said officers are placed in the army and navy in
relation to others (Encyclopedic Law Dictionary, Third Edition,
Walter A. Shumaker and George Foster Longsdorf, p. 90); or to the
designation or title of distinction conferred upon an officer in order
to fix his relative position in reference to other officers in matters of
privileges, precedence, and sometimes of command or by which to
determine his pay and emoluments as in the case of army staff
officers (Bouvier's Law Dictionary, Third Edition, p. 2804); or to a
grade or official standing, relative position in civil or social life, or in
any scale of comparison, status, grade, including its grade, status
or scale of comparison within a position (Vol. 36, Words and
Phrases, Permanent Edition, p. 100).
Thus, rank aggravated the killing of a staff sergeant by his corporal
(People vs. Mil 92 SCRA 89, 105-106, July 30, 1979), the killing of
the Assistant Chief of Personnel Transaction of the Civil Service
Commission by a clerk therein (People vs. Benito, 62 SCRA 351,
357-358, Feb. 13, 1975), the murder by a pupil of his teacher (U.S.
vs. Cabling, 7 Phil. 469. 474; People vs. Aragon & Lopez, 107 Phil.
706, 709), the murder of a municipal mayor (People vs. Lopez de
Leon, et al., 69 Phil. 298), the murder -of a city chief of police by
the chief of the secret service division (People vs. Hollero 88 Phil.
167), assault upon a 66-year old District Judge of the Court of First
Instance by a justice of the peace (People vs. Torrecarreori CA 52
OG 7644), the killing of a Spanish consul by his subordinate — a
mere chancellor (People vs. Godinez, 106 Phil. 597, 606607), and
the killing of an army general (People vs. Torres, et al., L-4642,
May 29, 1953).
As explained by Mr. Justice Mariano Albert, then of the Court of
Appeals, those "generally considered of high station in life, on
account of their rank (as well as age or sex), deserve to be
respected. Therefore, whenever there is a difference in social
condition between the offender and the offended party, this
aggravating circumstance sometimes is present" (Albert M.A. —
The Revised Penal Code Annotated, 1946 Ed., p. 109).
The difference in official or social status between a P.C. lieutenant
and a mere member of an anti-smuggling unit, is patent.
If the accused herein were charged with the complex crime of
murder with assault against an agent of a person in authority, and
not merely murder, then the aggravating circumstance of disregard
of rank or contempt of or insult to public authority cannot be
appreciated as aggravating because either circumstance is
inherent in the charge of assault against a person in authority or an
agent of a person in authority. But in the case at bar, the appellant
is accused of murder only. Consequently, either aggravating
circumstance should be considered in the imposition of the
penalty.
Thus, in the following cases where the charge was merely murder
or frustrated murder, the aggravating circumstance of disregard of
rank was appreciated:
(1) People vs. Benito, supra — the appellant, a clerk in the
Civil Service Commission, was charged with and convicted of the
murder of the assistant chief of the personnel transaction of the
said Commission;
(2) People vs. Torres, et al., supra — the appellants were charged
with and convicted of murder for the death of Army Col. Valentin
Salgado and attempted murder for the injuries inflicted on Army
Gen. Mariano Castaneda;
(3) People vs. Valeriano, et al. — appellants were accused and
convicted of robbery with homicide for the killing of District Judge
Bautista of the Court of First Instance of Pampanga [90 Phil. 15,
34-35]; and
(4) People vs. Hollero supra — where the accused chief of the
Secret Division of the Bacolod City Police Department was
convicted of murder for the killing of the chief of police.
The aggravating circumstance of contempt of, or insult to, public
authority under paragraph 2 of Article 14 of the Revised Penal
Code can likewise be appreciated in the case at bar.
The evidence of the prosecution clearly established that Chief of
Police Primo Panaligan of Indang was present as he was taking
his lunch in the same restaurant when the incident occurred.
As a matter of fact, the said chief of police was the one who
embraced or grabbed the accused from behind, wrested the
dagger from him and thereafter brought him to the municipal
building of Indang. And appellant admittedly knew him even then
as the town chief of police, although he now claims that he went to
the municipal building to surrender to the chief of police who was
not allegedly in the restaurant during the incident.
While it is true that in the cases of U.S. vs. Rodriguez, et al. (19
Phil. 150, 157-158), People vs. Siojo (61 Phil. 307, 317), and
People vs. Verzo (21 SCRA 1403), this Court ruled that the term
public authority refers to a person in authority and that a PC
lieutenant or town chief of police is not a public authority but
merely an agent of a person in authority; there is need of re-
examining such a ruling since it is not justified by the employment
of the term public authority in aforesaid paragraph 2 of Article 14
instead of the term person in authority which is specifically used in
Articles 148 and 152 of the Revised Penal Code. There is no
extended reasoning of the doctrine enunciated in the aforesaid
three (3) cases why the phrase public authority should
comprehend only persons in authority. The lawmaker could have
easily utilized the term "persons in authority" in the aforesaid
paragraph 2 of Article 14 in much the same way that it employed
the said phrase in Articles 148 and 1452. The lawmaker must have
intended a different meaning for the term public authority, which
may however include, but not limited to persons in authority.
Under the decided cases, a municipal mayor, barrio captain, barrio
lieutenant or barangay captain is a person in authority or a public
authority. Even a public school teacher is now considered a person
in authority under CA 578 amending Article 152 of the Revised
Penal Code (Sarcepudes vs. People, 90 Phil 228). So is the town
municipal health officer (People vs. Quebral et al., 73 Phil 640), as
well as a nurse, a municipal councilor or an agent of the Bureau of
CRIM LAW FINALS I ACJUCO 43

Internal Revenue (People vs. Yosoya, CA-GR No. 8522-R, May

26, 1955; People vs. Reyes, et al O.G.S. 11 p. 24).

The chief of police should therefore be considered a public

authority or a person in authority; for he is vested with jurisdiction
or authority to maintain peace and order and is specifically duty
bound to prosecute and to apprehend violators of the laws and
municipal ordinances, more than the aforementioned officials who
cannot prosecute and who are not even enjoined to arrest
malefactors although specifically mentioned as persons in
authority by the decided cases and by Article 152 of the Revised
Penal Code as amended by R.A. 1978 of June 22, 1957. The town
chief of police heads and supervises the entire police force in the
municipality as well as exercises his authority over the entire
territory of the municipality, which is patently greater than and
includes the school premises or the town clinic or barrio, to which
small area the authority or jurisdiction of the teacher, nurse, or
barrio lieutenant, respectively, is limited.

With two aggravating circumstances and no mitigating 2. DWELLING

circumstance, the appellant should therefore be condemned to
suffer the maximum period of reclusion temporal the penalty G.R. No. L-40330 November 20, 1978
prescribed for homicide.
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
WHEREFORE, HAVING BEEN FOUND GUILTY BEYOND vs.
REASONABLE DOUBT OF HOMICIDE AGGRAVATED BY AMADO DANIEL alias "AMADO ATO", accused-appellant.
CONTEMPT FOR OR INSULT TO A PUBLIC AUTHORITY OR
DISREGARD OF THE RESPECT DUE THE OFFENDED PARTY Eraulio D. Yaranon for appellant.
ON ACCOUNT OF HIS RANK, APPELLANT FLORO RODIL IS
HEREBY SENTENCED TO SUFFER AN INDETERMINATE TERM Solicitor General Felix V. Makasiar, Assistant Solicitor General
OF IMPRISONMENT RANGING FROM 12 YEARS OF Antonio G. Ibarra and Solicitor Rosalio A. de Leon for appellee.
RECLUSION TEMPORAL AS MAXIMUM.

THUS MODIFIED, THE JUDGMENT APPEALED FROM IS MUÑOZ PALMA, J:

HEREBY AFFIRMED IN ALL OTHER RESPECTS.
This case originated from the Court of First Instance of Baguio City
by virtue of a complaint filed by 13-year old Margarita Paleng
accusing Amado Daniel alias "Amado Ato" of rape alleged to have
been committed as follows:

That on or about the 20th day of September, 1965, in the City of

Baguio, Philippines, and within the jurisdiction of this Honorable
Court, the herein accused, armed with a sharp instrument and by
means of force and intimidation, did then and there willfully,
unlawfully and feloniously have carnal knowledge of the
undersignedcomplaint, against her will, and in her own room
situated at No. 25 Interior, Pinsao, Guisad, Baguio City.

That in the commission of the crime, the aggravating circumstance

that it was committed in the dwelling of the offended party, the
latter not having givenprovocation for it, is present. (p. 1, CFI
record)

The trial court, presided then by Hon. Feliciano Belmonte, after

due trial rendered its decision on May 30, 1966, finding the
accused guilty and sentencing him to suffer "not more than
TWELVE (12) YEARS and ONE (1) DAY of reclusion temporal and
not less than SIX (6) YEARS and ONE (1) DAY of prision mayor,
and to pay the costs." 1

His motion for reconsideration and new trial having been denied,
accused filed a notice of appeal; forthwith the case was forwarded
to the Court of Appeals.

On September 23, 1974, the Court of Appeals through its Tenth

Division rendered a decision the dispositive portion of which
follows:
CRIM LAW FINALS I ACJUCO 44
PREMISES CONSIDERED, We find that the guilt of the accused
Amado Daniel has been proven beyond reasonable doubt, and he
should accordingly suffer the penalty for the crime herein charged.
We find, however, that the sentence imposed the accused in the
judgment appealed from is not in accordance with law.
Republic Act No. 4111, which took effect on June 20, 1964,
amended Article 335 of the Revised Penal Code, providing that —
The crime of rape shall be punished by reclusion perpetua.
Whenever the crime of rape is committed with the use of a deadly
weapon or by two or more persons, the penalty shall be reclusion
perpetua to death.
Under Section 17 of Chapter 11 of the Judiciary Act of 1948
(Republic Act No. 296, as amended) —
The Supreme Court shall have exclusive jurisdiction to review,
revise, reverse, modify or affirm on appeal, as the law or rules of
court may provide, final judgments and decrees of inferior courts
as herein provided, in —
(1) All criminal cases involving offenses for which the penalty
imposed is death or life imprisonment; ...
WHEREFORE, We hereby certify this case to the Supreme Court
for appropriate further proceedings pursuant to law. 2
By virtue of the foregoing decision of the Court of Appeals the case
was certified to this Court and in a Resolution of March 6, 1975,
the same was ordered docketed. 3
Preliminary question —
The certification of the case to Us poses a preliminary question
which strikes at the very root of a long standing practice and
procedure evoked for the last forty years or so since the creation of
the Court of Appeals. 4
Is the Supreme Court with jurisdiction to act on an appeal in a
criminal case where the offense is punishable by reclusion
perpetua or death certified to it by the Court of Appeals with
findings of facts and of the guilt of the accused, but without
imposing the penalty of reclusion perpetua or death on the
appellant pursuant to Rule 124, Section 12, paragraph 2, of the
Rules of Court?5
Mr. Chief Justice Fred Ruiz Castro, joined by other ,Justices,
expresses the view that for this Court to acquire jurisdiction over
the appeal, the decision before Us must have imposed on the
appellant the penalty either of reclusion perpetua or death as the
facts warranted.
The rest of the Justices together with the writer of this Opinion,
believe otherwise and hold the view that the dispositive portion of
the decision as written and rendered is in accordance with the
Constitution and the law, and vests jurisdiction on the Court to act
on the appeal.
A. In People v. Ramos, decided on November 28, 1947, 6 a case
was certified to this Court by the Court of Appeals without findings
of facts and simply on the ground that it was "on the opinion that
the penalty that should be imposed ill this case is reclusion
perpetua, as recommended by the Solicitor-General, and not
reclusion temporal, as imposed by tile lower court." The question
arose as to the proper procedure to be followed by the appellate
court in certifying cases to this Court under Section 145-K of the
Revised Administrative Code as amended by Republic Act No. 52
which read:
Whenever in any criminal cases submitted to a division the said
division should be of the opinion that the penalty of death or life
imprisonment should be imposed, the said Court shall refrain from
entering judgment thereon and shall forthwith certify the case to
the Supreme Court for final determination, as if the case had been
brought before it on appeal.
In disposing of the issue several matters came up which evoked
different, and We may say, strong reactions from the Justices then
composing the Court, but for brevity we shall not dwell on them.
Simply stated, it is was ruled that the Court of Appeals was duty
bound to make its findings of facts to support its opinion that the
penalty to the imposed upon the appellant was either life
imprisonment or death so as to bring the case within the
jurisdiction of this Court.
From the Resolution written for the Court by then Mr. Chief Justice
Manuel V. Moran, We quoted the following pertinent portions:
The jurisdiction of this Court predicated upon the opinion of the
Court of Appeals, as provided in the above-quoted provisions of
the law, must of necessity defend upon the correctness of that opi
nion There is nothing in the law precluding this Court from
exercising ing its authority to pass upon such question which
concerns its own jurisdiction. And in order that this Court may
exercise its power of review the Court of appeals is bound to make
in its order f certification such findings of facts as are necessary to
support its conclusion that either life imprisonment or death is the
penalty to be imposed. This is indeed covered by Rule 52, section
3, which provides th where a court to which an appeal has been
taken has no appellate jurisdiction over lic case and it certifies the
same to the proper court, it must do so "with a specific and clear
statement of grounds therefor." the requirement of with and
specific grounds is precisely a device to prevent erroneous
transmissions of jurisdiction from a lower to a superior court.
Furthermore, the words "shall refrain from entering judgment
thereon" appearing in the provision above quoted, are sufficient
indication that the Court of Appeals, at the time of certifying the
case to this Court, had already examined the evidence and was
ready to render judgment on the merits, but having found from the
facts established by proof that the penalty to be imposed is either
death or life imprisonment, instead of entering judgment thereon ,
it certifies the case to the Supreme Court for final determination.
Since the Certification is the only ground for determining our
jurisdiction, it must contain not only conclusions of law but also
findings of fact, the latter being more important than the former for
they supply the real basis for determining jurisdiction ...
The instant case cannot be compared with cases coming directly
from a Court of First Instance wherein either life imprisonment or
death penalty is imposed, for in such cases, if we assume
jurisdiction even where the judgment appears to be erroneous on
its face, it is because the Court of First Instance has already
exhausted its jurisdiction by rendering judgment on the merits
containing both findings of fact and conclusions of law, and under
such circumstance it is more practical for the administration of the
law that this Court should exercise its appellate jurisdiction by
examining the evidence and correcting all errors both of fact and of
law that might have been committed by the trial court. But here,
the Court of Appeals is refraining from rendering judgment on the
merits and is refusing to complete the exercise of appellate
jurisdiction because it believes that such jurisdiction belongs to the
Supreme Court and thus, it proceeds to transfer the case to this
Court. lt is in that transfer that we believe we may intervene in
order to prevent an erroneous transfer,
xxx xxx xxx
CRIM LAW FINALS I ACJUCO 45
Section 145-K of the Administrative Code is merely a method
designed to make effective the appellate jurisdiction of both the
Court of Appeals and this Court, as defined by law. According to
the law of jurisdiction (section 138, Revised Administrative Code,
as amended by Commonwealth Acts Nos. 3 and 259), offenses,
for which the penalty imposed is death or life imprisonment,
including offenses arising from the same occurrence or committed
on the same occasion, come within the appellate jurisdiction of the
Supreme Court, and the remaining offenses fall within the
appellate jurisdiction of the Court of Appeals ...
We are of the opinion and so hold, therefore, that in a case like
this, the Court of Appeals, in certifying it to this Court, must state
its findings of fact necessary to support its conclusion that the
penalty to be imposed is either life imprisonment or death. While
this Court will not review the findings of fact, it will pass upon the
correctness of the legal conclusions derived therefrom. And if this
Court finds the conclusions to be correct, it will assume jurisdiction.
If it finds them to be wrong, the case will be returned to the Court
of Appeals. (pp. 613-616, supra, emphasis supplied)
In Ramos, the case was accepted because the Court considered
that there was substantial compliance with the law as the order of
certification made reference to the opinion and recommendation of
the Solicitor General whose brief contained sufficient findings of
fact to warrant the conclusion that life imprisonment should be
imposed upon the appellant. Justices Paras, Feria, Pablo, Hilado
and Briones concurred in the Resolution.
Justice Gregorio Perfecto in a separate opinion concurred with the
principle that the Court of Appeals is bound to make its findings of
fact and study the evidence so as to determine whether the
appellant is guilty or not, but dissented from that portion of the
Resolution which accepted the case as he was of the opinion that
the case should have been remanded to the Court of Appeals.7
Justice Pedro Tuason wrote a separate opinion and dissented from
the majority insofar as it held that it was necessary for the Court of
Appeals or a division thereof to state the reasons for its opinion
that death penalty or life imprisonment should be imposed. He
particularly dissented from statements that if this Court found the
conclusions of the Court of Appeals to be wrong, the case should
be returned to the Court of Appeals for further proceedings.
According to Justice Tuason when a case is certified to this Court it
is placed, by force of the Court of Appeals' opinion, within the
jurisdiction of the Supreme Court for the latter to decide the appeal
on the merits; findings of fact of the Court of Appeals are neither
essential nor necessary. Justice Tuason was joined in his dissent
by Justice Cesar Bengzon who later became Chief Justice of this
Court and Justice Sabino Padilla.8
B. The theory is now advanced that We go one step further
than that ruled in Ramos — that is, for the Court of Appeals not
only to make its findings of fact and finding of guilt, but also to
impose the penalty either of reclusion perpetua or death as the
facts warrant in order that We may exercise Our appellate
jurisdiction.
We believe that such a judicial ruling will be violence to the letter
and spirit of the law which confers on the Supreme Court the
exclusive prerogative to review on appeal and impose the
corresponding penalty in criminal cases where the offense is
punishable by reclusion perpetua or death.
Both the 1935 and the 1973 Constitutions vest upon the Supreme
Court appellate jurisdiction, in "(A)ll criminal cases in which the
penalty imposed is death or life imprisonment."9 This jurisdiction is
constitutional: the Supreme Court ma not be deprived thereof by,
Congress then, now the National Assembly. 10
Section 17 of the Judiciary Act 1948 as amended in turn provides
that the foregoing appellate jurisdiction of the Supreme Court is
exclusive.
Basically therefore, the objection to this new theory is one of
jurisdiction - the lack of jurisdiction of the Court of Appeals to
impose the penalty of reclusion perpetua or death.
The present controversy springs from the construction given to the
second paragraph of Sec. 12, Rule 124, Rules of Court 11 more
particularly to the use of the phrases "should be imposed" and
"shall refrain from entering judgment", viz:
xxx xxx xxx
Whenever in any criminal case submitted to a division the said
division should be of the opinion that the penalty of death or life
imprisonment should be imposed, the said court shall refrain from
entering judgment thereon and shall forthwith certify the case to
the Supreme Court for final determination, as if the case had been
brought before it on appeal. (Emphasis supplied)
As we construe it, the Rule cited does not charge the appellate
court with the duty of imposing the penalty of reclusion perpetua or
death. All that the Rule requires is that should the Court of Appeals
be of the opinion that death or life imprisonment should be
imposed, it "shall refrain from entering judgment thereon ...
The clause "entering judgment" means "rendering judgment".
Thus, the Court of Appeals shall refrain from rendering judgment if
and when it is of the opinion that reclusion perpetua or death is the
proper penalty for the crime committed. This can be the only
logical interpretation considering that the Court of Appeals is
without jurisdiction to impose the penalties concerned. The phrase
"entering judgment" is not to be equated with an "entry of
judgment" as the latter is understood in Rule 36 in relation to
Section 8, Rule 121 and Section 16, Rule 124, Rules of Court.
"Entry of judgment" presupposes a final judgment — final in the
sense that no appeal was taken from the decision of the trial or
appellate court within the reglementary period. A judgment in a
criminal case becomes final after the lapse of the period for
perfecting an appeal, or when the sentence has been partially or
totally satisfied or served, or the defendant has expressly waived
in writing his right to appeal.12 It is only then that there is a
judgment which is to be entered or recorded in the book of entries
of judgments. 13
It would be incongruous or absurd to state that Section 12, second
paragraph, Rule 124 enjoins the Court of Appeals from entering
judgment" when there is no judgment to be entered .
But then the argument is advanced — what is there to be reviewed
by the Supreme Court when the decision being certified contains
no penalty or sentence, as distinguished from appeals from the
Court of First Instance where there is a complete judgment to be
passed upon. The answer is simple. Section 12 itself states that
the case is for final determination by the Supreme Court as if the
case had been brought before it on appeal. Hence, based on the
findings of facts of the appellate court which as a rule are
conclusive and binding on Us, this Court "will pass upon the
correctness of the legal conclusions derived therefrom" (People v.
Ramos, supra) and impose the correct penalty for the offense
committed.
We realize that had Section 12, Rule 124 used the phrase shall
refrain from rendering judgment " there would be no cause for any
ambiguity. We can only assume that the intent of the Rule was so
clear to the Court when it drafted the Revised Rules of Court that it
did not envision a possible contrary or adverse interpretation or
ambiguity in its implementation under the phraseology used. It is
incumbent upon Us to construe the Rule in the spirit and intent it
CRIM LAW FINALS I ACJUCO 46
was conceived and in harmony with pertinent laws and
jurisprudence.
On the merits of the appeal —
1. Generally in a case of this nature, the evidence of the
prosecution consists solely of the testimony of the offended party.
Here We have the declaration of the victim, who at the time of the
incident was a little less than 13 years of age, on the basis of
which the trial court found the charge of rape duly established. The
happenings are briefly summarized in the People's brief as follows:
The offended party in this case is Margarita Paleng who was born
on November 20, 1952 (p. 3, t.s.n., Manipon). She is a native of
Balangabang Tublay, Mountain Province (pp. 3, 12, Id.) At the time
of the incident in question on September 20, 1965, complainant
was temporarily boarding at a house located at Pinsao Guisad
Baguio City, as she was then a first year high school student at the
Baguio Eastern High School (pp. 3, 12, 20, Id.; p. 36, Estigoy).
On September 20, 1965, at about three o'clock in the afternoon,
she had just arrived in the City from Tublay in a Dangwa bus (p. 3,
Manipon). Because it was then raining and the bus was parked
several meters away from the bus station, she waited inside the
bus (pp. 3, 22, Id.). After about three minutes of waiting, the
accused came and started molesting her by inquiring her name
and getting hold of her bag (pp. 4, 22-24, Id.). But she did not allow
him to hold her bag (p. 24, Id.). She called the attention of the bus
driver and the conductor about the actuation of the accused, but it
seemed that the former were also afraid of him (pp. 24-25, Id.).
Despite the rain, she left the bus and went to ride in a jeep parked
some 100 meters away (pp. 4, 25, Id.). The accused closely
followed her (p. 4, Id.). When the jeep started to go, the accused
also rode and sat beside her (p. 5, Id.).
When the jeep reached Guisad, she alighted on the road but she
still had to negotiate a distance of ten meters (p. 5, Id.). The
accused also alighted and again he tried to carry her bag (p. 5,
Id.). Although he was not allowed to carry her bag, her was
adamant in following her (p. 5, Id.).
Reaching her boarding house, she opened the door and was about
to close it when the accused dashed in and closed the door behind
him (pp. 31-32, Id.). When she entered her room, the accused
went in (p. 7, Id.). He pulled a dagger eight inches long and
threatened her: "If you will talk, 1 will kill you". (p. 7, Id.). Margarita
was stunned into silence because of her fear (p. i Id.). Thereupon,
the accused held her hair with his left hand and forced her Lo lie
down in bed (p. 7, Id.) He also placed his left hand with a
handkerchief in Margarita's mouth, at the same time holding the
dagger and her neck with his right hand (pp. 7-8, Id.). She was
forcibly made to the down and, at this moment, the accused
removed the buttons of his pants (p. 8, Id.). He then put down the
dagger on tile bed (p. 8, Id.). Her attempts to extricate herself from
the accused was to no avail assile was only 4 ft. and 8 inches tall
and weighed about 95 to 100 pounds (p. 35, Id.) while the accused
was 5 ft. and 7 inches tall and weighed about 126 pounds (pp. 8,
59, Id.). He then held his penis (pp. 8. 36, Id.), used his thigh to
separate the legs of Margarita (p. 38, Id.). tried, but failed. to
remove her panty (p. 36, Id.). He nonetheless guided his penis and
inserted it inside the vagina of the complainant after prying open
the part of her panty covering her private parts (pp. 9, 36, Id.).
Then he succeeded in having carnal knowledge of the offended
party (p. 9, Id.). Margarita lost consciousness. When she
recovered, he was already gone (p. 9, Id.).
The following morning, her father came to visit her. She confided to
him the terrible misfortune which befell her (pp. 9-10, Id.). She was
immediately brought to the Baguio General Hospital where she
was examined (p. 10, Id.). Then they proceeded to the Police
Department. The Chief of Police accompanied them to the Health
Center where she was again examined by Dr. Perfecto O. Micu
who thereafter submitted his medical report (Exh. C; p. 3, rec.; pp.
11, 14-16, Id.). Margarita and her father gave their respective
statements before the police authorities (Exh. B, pp, 5-6, rec.; p.
11, t.s.n.). She signed her criminal complaint prepared by the
Fiscal's Office of Baguio (Exh. A; p. 1, rec.; p. 11, t.s.n. (pp. 2-4,
Brief at p. 83, rollo
The City Medico-Legal Officer, Dr. Perfecto Micu was called to the
witness stand and he testified on the physical examination
conducted on the person of Margarita Paleng on September 23,
1965 and his findings as contained in the report were as follows:
1. Hymen-circular-stellate type with healing lacerations at
6:00, 8:00, 9:00 and 11:00 o'clock positions in the face of a clock.
2. Contusions at the base of the hymen at 3:00 & 9:00
o'clock regions.
3. Vaginal Orifice - tight and hardly admits 2 fingers.
4. Vaginal wall — tight and vaginal folds are prominent.
5. Vaginal smear — negative for spermatozoa and for gram
negative intra or extra-cellular diplococci. (Exh. "C", p. 3, CFI
record)
Dr. Micu concluded that "defloration was recent". He further
declared that the condition of the hymen revealed that Margarita
Paleng was a virgin before the incident complained of, and that the
number of lacerations and contusions at the base of the hymen
indicated the degree of force exerted to effect the sexual act. 14
For his defense, appellant claimed that he and Margarita were
acquainted with each other since 1963, and there were occasions
when they rode together in a bus; that the incident of September
20, 1965 inside the room of Margarita was with the latter's consent,
and in fact it was the second time he had carnal knowledge with
her, the first time having occurred inside a shack; that he promised
Margarita that he would marry her, but to his surprise, she filed the
instant complaint against him. 15
2. The issue being one of credibility, We find no cogent
reasons for discarding the findings of facts of the trial court which
were sustained by the Court of Appeals after the latter had
examined the evidence as a result of which it certified the case to
this Court.
Appellant assails the veracity of the testimony of the complainant.
But what possible motive could a thirteen-year old girl barely in her
teens have in fabricating a story that could only bring down on her
and her family shame and humiliation and make her an object of
gossip and curiosity among her classmates and the people of her
hometown. It cannot be denied that a public trial involving a crime
of this nature subjects the victim to what can be a harrowing
experience of submitting to a physical examination of her body, an
investigation by police authorities, appearance in court for the
hearing where she has to unravel lewd and hideous details of a
painful event which she would prefer to forget and leave it
unknown to others. If Margarita did forego all these and preferred
to face the cruel realities of the situation it was due to her simple
and natural instincts of speaking out the truth.
The insinuation that this complaint was filed because appellant had
not married the girl although he promised to marry her, is
preposterous. On September 20, 1965, Margarita was only twelve
years and ten months old and was not of marriageable age, hence,
marriage was a legal impossibility. And as regards appellant's
testimony that the complaint was instigated by the Chief of Police
CRIM LAW FINALS I ACJUCO 47
of Tublay who was Margarita's uncle, the trial court did not give
credit to such a declaration.
Counsel for appellant stresses that notwithstanding that Margarita
had the opportunity to ask for help or attract the attention of other
people before she reached her boarding house, she failed to do
so. According to counsel there were people at the Dangwa station,
in the busy streets, in the market place, in the jeepney parking
place where the girl took a jeep to proceed to the boarding house,
and in the neighboring houses the closest of which was about 5
meters away, but no attempt was ever made by complainant to
seek help so as to prevent appellant from molesting her. 16
Appellant's contention presupposes that Margarita was well aware
all the time from the moment she saw the appellate inside the bus
that the latter had intentions of abusing or raping her. All that the
appellant did inside the bus was to hold her bag and she caged the
attention of the driver and the conductor to the impertinence of
appellant but the two did not do anything about it. 17 And when
Margarita walked from the bus to the jeepney station, although she
saw appellant walking behind her she did not suspect that he was
following her. To a question propounded by His Honor whether she
suspected that appellant was following her, Margarita answered:
"No sir, I did not suspect." 18 All along Margarita could not call the
attention of the people in the street or shout for help inasmuch as
at that particular moment the appellant was not doing anything
against her. And when Margarita reached the boarding house there
were no persons around 19 and in fact she went straight to her
room and it was at that particular moment when appellant barged
into the room before she could close the door. In short, the Poor
girl was simply taken by surprise by the forced entrance of
appellant who immediately took out an 8-inch long dagger and said
"If you will talk I will kill you."
Persons can have different reactions to a situation like that —
some may manifest an aggressive or violent attitude of confronting
a molesting or impertinent fellow while others, like 12-year old
Margarita, may assume a silent. fearful attitude.
Appellant's counsel also claims that Margarita did not offer any
resistance to the acts of the accused at the time the latter was
allegedly forcing himself on her as shown by the medical findings
that there were no signs of extra-genital injuries on the girl's body,
and no blood stains on her dress and underwear.
The foregoing arguments are inadequate to weaken and destroy
the veracity of Margarita's straightforward and positive declaration
as to how appellant, a 22-year old farmer in the prime of his
manhood, weighing 126 lbs and five feet 21 and six inches tall,20
overpowered her and succeeded in accomplishing the sexual act
despite her resistance. Margarita was less than 13 years of age,
was 4' 8 " in height, and weighed around 95 lbs.21
In a crime of rape, force need not be irresistible; "it need but be
present, and so long as it brings about the desired result, all
consideration of whether it was more or less irresistible, is beside
the point. 22
All that is necessary is that the force used by the accused is
sufficient for him to consummate his evil purpose. In U.S. v.
Villarosa, 1905, there was a similar situation. A 12 year old girl was
sexually abused in the woods by a man of superior physical
strength. In holding the accused Villarosa guilty of rape the Court
held:
It is a doctrine well established by the courts that in order to
consider the existence of the crime of rape it is not necessary that
the force employed in accomplishing it be so great or of such
character as could not be resisted; it is only necessary that the
force used by the guilty party be sufficient to consummate the
purpose which he had in view. (4 Phil. 434, 437 citing Judgment
May 14, 1878, Supreme Court of Spain. The Villarosa doctrine has
been followed in numerous cases involving the crime of rape and
one of the latest is People v. Equec, 1977, per Justice Enrique
Fernando, 70 SCRA 665.)
And as stated in People v. Savellano, per Justice Ramon Aquino,
the force or violence necessary in rape is naturally a relative term,
depending on the age, size, and strength of the parties and their
relation to each other. 23
Rape is likewise committed when intimidation is used on the victim
and the latter submits herself against her will because of fear for
her life and personal safety. In this case of Margarita Paleng,
appellant was armed with a dagger and with it threatened to kill the
girl if she would talk or scream for help. Her fear naturally
weakened whatever resistance Margarita could muster at the time
and as a result appellant was able to consummate his coitus on
the victim. 24
One last point raised by the able counsel of appellant, Atty. Braulio
D. Yaranon, who at the time of the trial in 1965 was the Vice-Mayor
of Baguio City, was that appellant voluntarily submitted to a lie
detector test with the National Bureau of Investigation and the
report of the lie detector examiner is in appellant's favor, that is, the
latter was telling the truth on the questions propounded to him one
of which was whether he forced Margarita Paleng into having
sexual intercourse with him and the reply was "No". 25
On this matter We find the trial Judge's observations and
conclusions meritorious and We quote from his decision the
following:
As to the N.B.I. lie detector test report, the Court does not put
much faith and credit on it. It is well known that the same is not
conclusive. Its efficacy depends upon the time, place and
circumstances when taken and the nature of the subject. If subject
is hard and the circumstances, as in this instant, were not
conducive to affect the subject emotionally, the test will fail. The
subject had nothing more to fear because the trial was over. He
was not confronted by the victim or other persons whom he had a
reason to fear. Naturally, his reaction to the questions propounded
was normal and unaffected and the apparatus could not detect it.
(pp. 172-173, CFI record)
To conclude, the crime committed by the appellant is rape with the
use of a deadly weapon with the aggravating circumstance of
having been committed in the dwelling of the offended party.
Although Margarita was merely renting a bedspace in a boarding
house, her room constituted for all intents and purposes a
"dwelling" as the term is used in Article 14(3), Revised Penal
Code. It is not necessary, under the law, that the victim owns the
place where he lives or dwells. Be he a lessee, a boarder, or a
bed-spacer, the place is his home the sanctity of which the law
seeks to protect and uphold.
Hence, the correct penalty for the crime committed is death
pursuant to Article 335 of the Revised Penal Code as amended.
However, for lack of the necessary number of votes, the penalty
next lower in degree is to be applied.
PREMISES CONSIDERED, We affirm the judgment of conviction
of Amado Daniel for the crime of rape as charged, and We
sentence him to suffer the penalty of reclusion perpetua and order
him to indemnify Margarita Paleng by way of moral damages in the
amount of Twelve Thousand Pesos (P12,000.00) and pay the
costs.
Decision Modified.
SO ORDERED.
CRIM LAW FINALS I ACJUCO 48

3. NIGHTTIME/DISGUISE

[G.R. No. 120420. April 21, 1999]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RUFINO

MIRANDILLA BERMAS, accused-appellant.

DECISION
VITUG, J.:

In convicting an accused, it is not enough that proof beyond

reasonable doubt has been adduced; it is also essential that the
accused has been duly afforded his fundamental rights.

Rufino Mirandilla Bermas pleaded not guilty before the Regional

Trial Court of Paraaque, Branch 274, Metro Manila, to the crime of
rape under a criminal complaint, which read:

C O M P LAI N T

The undersigned complainant as assisted by her mother accuses

Rufino Mirandilla Bermas, of the crime of Rape, committed as
follows:

"That on or about the 3rd day of August 1994, in the Municipality of

Paraaque, Metro Manila, Philippines, and within the jurisdiction of
this Honorable Court, the abovenamed accused, while armed with
a knife and by means of force and intimidation, did then and there
willfully, unlawfully and feloniously have carnal knowledge of the
undersigned complainant against her will.

CONTRARY TO LAW

Paraaque, Metro Manila

CRIM LAW FINALS I ACJUCO 49
August 8, 1994
(SGD) MANUEL P. BERMAS
Complainant
Assisted by:
(SGD) ROSITA BERMAS
Mother[1]
Evidence was adduced during trial by the parties at the conclusion
of which the lower court, presided over by Hon. Amelita G.
Tolentino, rendered its decision, dated 02 May 1995, finding the
accused guilty of the offense charged and sentencing him to suffer
the extreme penalty of death.
The death penalty having been imposed, the case has reached
this Court by way of automatic review pursuant to Article 47 of the
Revised Penal Code, as amended by Section 22 of Republic Act
No. 7659 (otherwise known as An Act To Impose Death Penalty on
Certain Heinous Crimes, Amending For That Purpose The Revised
Penal Code, as amended, Other Special Penal Laws, and For
Other Purposes, which took effect on 31 December 1993).
The prosecution, through the Office of the Solicitor General, gave
an account, rather briefly, of the evidence submitted by the
prosecution.
"On August 3, 1994, complainant Manuela Bermas, 15 years old,
was raped by her own father, appellant Rufino Bermas, while she
was lying down on a wooden bed inside their house at Creek Drive
II, San Antonio Valley 8, Paraaque, Metro Manila (pp. 6-7, TSN,
Oct. 19, 1994). Armed with a knife, appellant removed the victim's
shorts and panty, placed himself above her, inserted his penis in
her vagina and conducted coital movements (pp. 7-8, ibid.). After
the appellant satisfied his lustful desire, he threatened the victim
with death if she reports the incident to anyone. (p. 9, ibid.)
"On August 9, 1994, complainant was medically examined at the
NBI, which yielded the following findings:
"The findings concluded: 1. No evident sign of extragenital physical
injuries noted on the body of the subject at the time of
examination; 2. Hymen, intact but distensible and its orifice wide
(2.7 cm. In diameter) as to allow complete penetration by an
average sized, adult, Filipino male organ in full erection without
producing any hymenal laceration."[2]
The defense proffered the testimony of the accused, who denied
the charge, and that of his married daughter, Luzviminda Mendez,
who attributed the accusation made by her younger sister to a
mere resentment by the latter. The trial court gave a summary of
the testimony given by the accused and his daughter Luzviminda;
viz:
The accused vehemently denied that he has ever committed the
crime of rape on her daughter, the complainant. He told the Court
that he could not do such a thing because he loves so much his
daughter and his other children. In fact, he said that he even
performed the dual role of a father and a mother to his children
since the time of his separation from his wife. The accused further
told the Court that in charging him of the crime of rape, the
complainant might have been motivated by ill-will or revenge in
view of the numerous scoldings that she has received from him on
account of her frequent coming home late at night. The accused
stressed that he knew of no other reason as to why his daughter,
the complainant, would ever charge him of the crime of rape
except probably in retaliation for being admonished by him
whenever she comes home late in the night.
The married daughter of the accused, who testified in his behalf,
denied that the complainant was raped by the accused. She said
that the complainant did not come home in the night of August 3,
1994, and that, she is a liar. She told the Court that the concoction
by the complainant of the rape story is probably due to the
resentment by the latter of the frequent scoldings that she has
been receiving from the accused. She further added that she was
told by the previous household employer of the complainant that
the latter is a liar. She went on to testify further that she does not
believe that the accused, who is her father, raped the complainant,
who is her younger sister.[3]
The trial court, in its decision of 02 May 1995, found the case of
the prosecution against the accused as having been duly
established and so ruled out the defense theory of denial and
supposed ill-will on the part of private complainant that allegedly
had motivated the filing of the complaint against her father. The
court adjudged:
"WHEREFORE, this Court finds the accused guilty beyond
reasonable doubt of the crime of rape and hereby sentences him
to suffer the DEATH PENALTY, to indemnify the complainant in the
amount of P75,000.00, Philippine Currency, and to pay the costs.
"SO ORDERED."[4]
In their 61-page brief, defense counsel Fernandez & Kasilag-
Villanueva (in collaboration with the Anti-Death Penalty Task
Force), detailed several errors allegedly committed by the court a
quo; thus:
I. THE ACCUSED WAS DEPRIVED OF DUE PROCESS.
A. THE ACCUSED WAS DENIED HIS CONSTITUTIONAL RIGHT
TO EFFECTIVE AND VIGILANT COUNSEL
1. The trial court did not observe the correct selection process in
appointing the accused's counsel de officio;
2. The Public Attorney could not give justice to the accused;
a. Negligent in not moving to quash the information on the ground
of illegal arrest;
b. Negligent in not moving to quash the information on the ground
of invalid filing of the information;
c. Negligent in not moving for a preliminary investigation;
d. Negligent in not pointing out the unexplained change in the case
number;
e. Negligent in not moving to inhibit the judge;
f. Negligent in her conduct at the initial trial.
3. The Vanishing Second Counsel de Officio
a. He was not dedicated nor devoted to the accused;
b. His work was shoddy;
4. The Reluctant Third Counsel de Officio
5. The performance of all three counsels de officio was ineffective
and prejudicial to the accused.
B. THE ACCUSED WAS DENIED HIS CONSTITUTIONAL RIGHT
TO BE TRIED BY AN IMPARTIAL JUDGE AND TO BE
PRESUMED INNOCENT.
CRIM LAW FINALS I ACJUCO 50
C. THE ACCUSED WAS DENIED HIS CONSTITUTIONAL RIGHT
TO BE HEARD AND FOR WITNESSES TO TESTIFY IN HIS
BEHALF.
D. THE ARRAIGNMENT OF THE ACCUSED WAS INVALID.
E. THE ACCUSED WAS DENIED THE EQUAL PROTECTION OF
THE LAW.
II. THE TRIAL COURT DID NOT `SCRUTINIZE WITH EXTREME
CAUTION THE PROSECUTION'S EVIDENCE,
MISAPPRECIATED THE FACTS AND THEREFORE ERRED IN
FINDING THE ACCUSED GUILTY OF RAPE BEYOND
REASONABLE DOUBT."[5]
The Court, after a painstaking review of the records, finds merit in
the appeal enough to warrant a remand of the case for new trial.
It would appear that on 08 August 1994 Manuela P. Bermas, then
15 years of age, assisted by her mother Rosita Bermas, executed
a sworn statement before SPO1 Dominador Nipas, Jr., of the
Paraaque Police Station, stating, in sum, that she had been raped
by accused Rufino Mirandilla Bermas, her own father, in 1991 and
1993, as well as on 03 August 1994, particularly the subject matter
of the complaint, hereinbefore quoted, duly signed and filed
conformably with Section 7, Rule 112, of the Rules of Court. The
Second Assistant Prosecutor, issued a certification to the effect
that the accused had waived his right to a preliminary
investigation.
On the day scheduled for his arraignment on 03 October 1994, the
accused was brought before the trial court without counsel. The
court thereupon assigned Atty. Rosa Elmira C. Villamin of the
Public Attorney's Office to be the counsel de officio. Accused
forthwith pleaded not guilty. The pre-trial was waived.
The initial reception of evidence was held on 19 October 1994.
The prosecution placed complainant Manuela Bermas at the
witness stand. She testified on direct examination with hardly any
participation by defense counsel who, inexplicably, later waived the
cross-examination and then asked the court to be relieved of her
duty as counsel de officio.
"ATTY. VILLARIN:
And I am requesting if this Honorable Court would allow me and
my paero besides me, would accede to my request that I be
relieved as counsel de officio because I could not also give justice
to the accused because as a lady lawyer . . . if my paero here and
if this Honorable Court will accede to my request.
"COURT:
It is your sworn duty to defend the helpless and the defenseless.
That is your sworn duty, Mrs. Counsel de Officio. Are you
retracting?
"ATTY. VILLARIN:
That is why I am asking this Honorable Court."[6]
Counsel's request was granted, and Atty. Roberto Gomez was
appointed the new counsel de officio. While Atty. Gomez was
ultimately allowed to cross-examine the complainant, it should be
quite evident, however, that he barely had time, to prepare
therefor. On this score, defense counsel Fernandez & Kasilag-
Villanueva in the instant appeal would later point out:
To substitute for her, the Public Attorney recommended Atty.
Roberto Gomez to be appointed as defense counsel de oficio. And
so the trial court appointed him.
Atty. Gomez asked for a ten minute recess before he began his
cross examination, presumably to prepare. But a ten minute
preparation to cross examine the complainant upon whose
testimony largely rests the verdict on the accused who stands to
be meted the death penalty if found guilty, is far too inadequate.
He could not possibly have familiarized himself with the records
and surrounding circumstances of the case, read the complaint,
the statement of the complainant, the medico-legal report, memos
of the police, transcripts and other relevant documents and confer
with the accused and his witnesses, all in ten minutes.[7]
The prosecution abruptly rested its case after the medico-legal
officer had testified.
The reception of the defense evidence was scheduled for 12
December 1994; it was later reset to 09 January 1995. When the
case was called on 09 January 1995, the following transpired:
COURT:
Where is the counsel for the accused?
COURT:
Did he file his withdrawal in this case? It is supposed to be the turn
of the defense to present its evidence.
PROSECUTOR GARCIA:
Yes, Your Honor. The prosecution had already rested its case.
COURT:
Last time he asked for the continuance of this case and
considering that the accused is under detention ... it seems he
cannot comply with his obligation.
COURT:
(To the accused) Nasaan ang abogado mo?
ACCUSED R. BERMAS:
Wala po.
COURT:
It is already the turn of the defense to present its evidence in this
case. In view of the fact that the defense counsel is not interested
anymore in defending the accused because last time he moved for
the continuance of the hearing of this case and since this time he
did not appear, he is unduly delaying the proceedings of this case
and considering the accused here is under detention, I think it
would be better if the Court appoints another lawyer. He should file
his withdrawal if he is not interested anymore.
In view of the fact that the counsel de officio has repeatedly failed
to appear in this Court to defend his client-accused, the Court is
hereby constrained to appoint another counsel de officio to handle
the defense of the accused. For this purpose, Atty. Nicanor
Lonzame is hereby appointed as the counsel de officio for accused
Rufino Mirandilla Bermas.[8]
The hearing scheduled for that day was reset to 16 January 1995
upon the request of Atty. Lonzame. On even date, Atty. Lonzame
himself asked to be relieved as counsel de officio but later, albeit
reluctantly, retracted; thus:
CRIM LAW FINALS I ACJUCO 51
COURT:
Where is the accused? Where is the counsel de officio?
ATTY. NICANOR LONZAME:
As counsel de officio, Your Honor. The lawyer from the PAO is
here, may I be allowed to give her my responsibility as counsel de
officio considering that the lawyer from the PAO ...
COURT:
What about?
ATTY. LONZAME:
I was appointed because the PAO lawyer was not around. If the
Court will allow us to be relieved from our responsibility as
appointed counsel de officio of the accused ...
COURT:
You want to be relieved of your responsibility as appointed counsel
de officio? As an officer of the Court you don't want to handle the
defense of the accused in this case?
ATTY. LONZAME:
I will be withdrawing my previous manifestation that I be relieved of
my responsibility as counsel de officio.
COURT:
So, therefore, counsel, are you now ready?
ATTY. LONZAME:
Yes, Your Honor.[9]
Trial proceeded with the accused being the first to be put at the
witness stand. He denied the accusation against him. The next
witness to be presented was his married daughter who
corroborated her fathers claim of innocence.
The defense counsel in the instant appeal took over from Atty.
Lonzame who himself, for one reason or another, had ceased to
appear for and in behalf of accused-appellant.
This Court finds and must hold, most regrettably, that accused-
appellant has not properly and effectively been accorded the right
to counsel. So important is the right to counsel that it has been
enshrined in our fundamental law and its precursor laws. Indeed,
even prior to the advent of the 1935 Constitution, the right to
counsel of an accused has already been recognized under
General Order No. 58, dated 23 April 1900, stating that a
defendant in all criminal prosecutions is entitled to counsel at every
stage of the proceedings,[10] and that if he is unable to employ
counsel, the court must assign one to defend him.[11] The 1935
Constitution has no less been expressive in declaring, in Article III,
Section 17, thereof, that -
(17) In all criminal prosecutions, the accused shall be presumed to
be innocent until the contrary is proved, and shall enjoy the right to
be heard by himself and counsel, to be informed of the nature and
cause of the accusation against him, to have a speedy and public
trial, to meet the witnesses face to face, and to have compulsory
process to secure the attendance of witnesses in his behalf.
Except for a proviso allowing trial in absentia, the right to counsel
under the 1973 Constitution, essentially, has remained unchanged.
Under the 1987 Constitution, a worthwhile innovation that has
been introduced is the provision from which prevailing
jurisprudence on the availability of the right to counsel as early as
the stage of custodial interrogation can be deemed to be
predicated. The rule, found in Sections 12 and 14, Article III, of the
1987 Constitution, states -
Sec. 12. (1) Any person under investigation for the commission of
an offense shall have the right to be informed of his right to remain
silent and to have competent and independent counsel preferably
of his own choice. If the person cannot afford the services of
counsel, he must be provided with one. These rights cannot be
waived except in writing and in the presence of counsel.
xxxxxxxxx
Sec. 14. x x x x x x x x x
(2) In all criminal prosecutions, the accused shall be presumed
innocent until the contrary is proved, and shall enjoy the right to be
heard by himself and counsel, to be informed of the nature and
cause of the accusation against him, to have a speedy, impartial,
and public trial, to meet the witnesses face to face, and to have
compulsory process to secure the attendance of witnesses and the
production of evidence in his behalf. However, after arraignment,
trial may proceed notwithstanding the absence of the accused
provided that he has been duly notified and his failure to appear is
unjustifiable.
The constitutional mandate is reflected in the 1985 Rules of
Criminal Procedures which declares in Section 1, Rule 115,
thereof, that it is a right of the accused at the trial to be present in
person and by counsel at every stage of the proceedings from the
arraignment to the promulgation of the judgment.
The presence and participation of counsel in the defense of an
accused in criminal proceedings should never be taken lightly.[12]
Chief Justice Moran in People vs. Holgado,[13] explained:
"In criminal cases there can be no fair hearing unless the accused
be given an opportunity to be heard by counsel. The right to be
heard would be of little avail if it does not include the right to be
heard by counsel. Even the most intelligent or educated man may
have no skill in the science of the law, particularly in the rules of
procedure, and, without counsel, he may be convicted not because
he is guilty but because he does not know how to establish his
innocence. And this can happen more easily to persons who are
ignorant or uneducated. It is for this reason that the right to be
assisted by counsel is deemed so important that it has become a
constitutional right and it so implemented that under our rules of
procedure it is not enough for the Court to apprise an accused of
his right to have an attorney, it is not enough to ask him whether
he desires the aid of an attorney, but it is essential that the court
should assign one de oficio for him if he so desires and he is poor
or grant him a reasonable time to procure an attorney of his
own."[14]
In William vs. Kaiser,[15] the United States Supreme Court,
through the late Justice Douglas, has rightly observed that the
accused needs the aid of counsel lest he be the victim of
overzealous prosecutors, of the laws complexity or of his own
ignorance or bewilderment. An accused must be given the right to
be represented by counsel for, unless so represented, there is
great danger that any defense presented in his behalf will be as
inadequate considering the legal perquisites and skills needed in
the court proceedings.[16] The right to counsel proceeds from the
fundamental principle of due process which basically means that a
person must be heard before being condemned. The due process
requirement is a part of a persons basic rights; it is not a mere
formality that may be dispensed with or performed perfunctorily.
CRIM LAW FINALS I ACJUCO 52

The right to counsel must be more than just the presence of a
lawyer in the courtroom or the mere propounding of standard
questions and objections. The right to counsel means that the
accused is amply accorded legal assistance extended by a
counsel who commits himself to the cause for the defense and
acts accordingly. The right assumes an active involvement by the
lawyer in the proceedings, particularly at the trial of the case, his
bearing constantly in mind of the basic rights of the accused, his
being well-versed on the case, and his knowing the fundamental
procedures, essential laws and existing jurisprudence. The right of
an accused to counsel finds substance in the performance by the
lawyer of his sworn duty of fidelity to his client. Tersely put, it
means an efficient and truly decisive legal assistance and not a
simple perfunctory representation.[17]
was arraigned. Atty. Ricardo A. Fernandez, Jr. of the Anti-Death
Penalty Task Force is hereby appointed counsel de officio for the
appellant.
Attys. Rosa Elmina Villamin of the Public Attorney's Office,
Paraaque, Roberto Gomez and Nicanor Lonzame are hereby
ADMONISHED for having fallen much too short of their
responsibility as officers of the court and as members of the Bar
and are warned that any similar infraction shall be dealt with most
severely.
SO ORDERED.

It is never enough that accused be simply informed of his right to

counsel; he should also be asked whether he wants to avail
himself of one and should be told that he can hire a counsel of his
own choice if he so desires or that one can be provided to him at
his request.[18] Section 7, Rule 116, of the Rules of Criminal
Procedure provides:

Sec. 7. Appointment of counsel de oficio. - The court, considering

the gravity of the offense and the difficulty of the questions that
may arise, shall appoint as counsel de oficio only such members of
the bar in good standing who, by reason of their experience and
ability may adequately defend the accused. But in localities where
such members of the bar are not available, the court may appoint
any person, resident of the province and of good repute for probity
and ability, to defend the accused.

A counsel de oficio is expected to do his utmost.[19] A mere pro-

forma appointment of de oficio counsel who fails to genuinely
protect the interests of the accused merits disapprobation.[20] The
exacting demands expected of a lawyer should be no less than
stringent when one is a counsel de officio. He must take the case
not as a burden but as an opportunity to assist in the proper
dispensation of justice. No lawyer is to be excused from this
responsibility except only for the most compelling and cogent
reasons.[21]

Just weeks ago, in People vs. Sevilleno, G.R. No. 129058,

promulgated on 29 March 1999, this Court has said:
We cannot right finis to this discussion without making known our
displeasure over the manner by which the PAO lawyers dispensed
with their duties. All three (3) of them displayed manifest disinterest
on the plight of their client.
xxxxxxxxx
Canon 18 of the Code of Professional Responsibility requires
every lawyer to serve his client with utmost dedication,
competence and diligence. He must not neglect a legal matter
entrusted to him, and his negligence in this regard renders him
administratively liable. Obviously, in the instant case, the
aforenamed defense lawyers did not protect, much less uphold,
the fundamental rights of the accused. Instead, they haphazardly
performed their function as counsel de oficio to the detriment and
prejudice of the accused Sevilleno, however guilty he might have
been found to be after trial. Inevitably, this Court must advise Attys.
Agravante, Pabalinas and Saldavia to adhere closely and faithfully
to the tenets espoused in the Code of Professional Responsibility;
otherwise, commission of any similar act in the future will be
severely sanctioned.
The Court sees no other choice than to direct the remand of the
case to the court a quo for new trial.
WHEREFORE, let this case be REMANDED to the court a quo for
trial on the basis of the complaint, aforequoted, under which he
4. EVIDENT PREMEDITATION
G.R. L-No. 5292 August 28, 1909
THE UNITED STATES, plaintiff,
vs.
THE MORO MANALINDE, defendant.
Office of the Solicitor-General Harvey for plaintiff.
Ramon Diokno for defendant.
TORRES, J.:
Between 2 and 3 o'clock on the afternoon of the 19th of January,
1909, while Juan Igual, a Spaniard, was seated on a chair in the
doorway of Sousa's store in Cotabato, Moro Province, he suddenly
received a wound on the head delivered from behind and inflicted
with a kris. Ricardo Doroteo, a clerk in the said store, who was
standing behind the counter, upon hearing the noise and the cry of
the wounded man, ran to his assistance and found him lying on the
ground. Meanwhile the aggressor, the Moro Manalinde,
approached a Chinaman named Choa, who was passing along the
street, and just as the latter was putting down his load in front of
the door of a store and was about to enter, attacked him with the
same weapon, inflicting a severe wound in the left shoulder, on
account of which he fell to the ground. The Moro, who came from
the rancheria of Dupit and had entered the town carrying his
weapon wrapped up in banana leaves, in the meantime escaped
CRIM LAW FINALS I ACJUCO 53
by running away from the town. Both wounded men, the Chinaman
and the Spaniard, were taken to the hospital, where the former
died within an hour, the record not stating the result of the wound
inflicted on the Spaniard Juan Igual.
In view of the above a complaint was filed by the provincial fiscal
with the district court charging Manalinde with the crime of murder,
and proceedings having been instituted, the trial judge, in view of
the evidence adduced, rendered judgment on the 5th of February
of said year, sentencing the accused to the penalty of death, to
indemnify the heirs of the deceased in the sum of P1,000, and to
pay the costs. The case has been submitted to this court for
review.
From the above facts fully substantiated in this case, it appears
beyond doubt that the crime of murder, defined and punished by
article 403 of the Penal Code, was committed on the person of the
Chinaman Choa, in that the deceased was unexpectedly and
suddenly attacked, receiving a deep cut on the left shoulder at the
moment when he had just put down the load that he was carrying
and was about to start for the door of the store in front of which he
stopped for the purpose of entering therein. As a result of the
tremendous wound inflicted upon him by the heavy and
unexpected blow, he was unable, not only to defend himself, apart
from the fact that he was unarmed, but even to flee from the
danger, and falling to the ground, died in an hour's time. It is
unquestionable that by the means and form employed in the attack
the violent death of the said Chinaman was consummated with
deceit and treachery (alevosia), one of the five qualifying
circumstances enumerated in the aforesaid article as calling for the
greatest punishment.
When Manalinde was arrested he pleaded guilty and confessed
that he had perpetrated the crime herein mentioned, stating that
his wife had died about one hundred days before and that he had
come from his home in Catumaldu by order of the Datto
Rajamudah Mupuck, who had directed him to go juramentado in
Cotabato in order to kill somebody, because the said Mupuck had
certain grievances to avenge against a lieutenant and a sergeant,
the said datto further stating that if he, Manalinde, was successful
in the matter, he would give him a pretty woman on his return, but
that in case he was captured he was to say that he performed the
killing by order of Maticayo, Datto Piang, Tambal and Inug. In order
to carry out his intention to kill two persons in the town of Cotabato
he provided himself with a kris, which he concealed in banana
leaves, and, traveling for a day and a night from his home, upon
reaching the town, attacked from behind a Spaniard who was
seated in front of a store and, wounding him, immediately after
attacked a Chinaman, who was close by, just as the latter was
placing a tin that he was carrying on the ground and he was about
to enter a store near by, cutting him on the left shoulder and fleeing
at once; he further stated that he had no quarrel with the assaulted
persons.
From the statements made by the accused his culpability as the
sole-confessed and self-convicted author of the crime in question
has been unquestionably established, nor can his allegation that
he acted by order of Datto Mupuck and that therefore he was not
responsible exculpate him, because it was not a matter of proper
obedience. The excuse that he went juramentado by order of the
said datto and on that account killed only two persons, whereas if
he had taken the oath of his own volition he would have killed
many more, because it is the barbarous and savage custom of a
juramentado to kill anyone without any motive or reason whatever,
can not under any consideration be accepted or considered under
the laws of civilized nations; such exhibitions of ferocity and
savagery must be restrained, especially as the very people who up
to the present time have been practicing such acts are well aware
that the established authorities in this country can never allow
them to go unpunished, and as has happened a number of times
in towns where juramentados are in the habit of appearing, the
punishment of the author has followed every crime so committed.
In the commission of the crime of murder the presence of
aggravating circumstances 3 and 7 of article 10 of the Penal Code
should be taken into consideration in that promise of reward and
premeditation are present, which in the present case are held to be
generic, since the crime has already been qualified as committed
with the treachery, because the accused confessed that he
voluntarily obeyed the order given him by Datto Mupuck to go
juramentado and kill some one in the town of Cotabato, with the
promise that if he escaped punishment he would be rewarded with
a pretty woman. Upon complying with the order the accused
undoubtedly acted of his own volition and with the knowledge that
he would inflict irreparable injury on some of his fellow-beings,
depriving them of life without any reason whatever, well knowing
that he was about to commit a most serious deed which the laws in
force in this country and the constituted authorities could by no
means permit. Datto Mupuck, who ordered and induced him to
commit the crimes, as well as the accused knew perfectly well that
he might be caught and punished in the act of committing them.
As to the other circumstance it is also unquestionable that the
accused, upon accepting the order and undertaking the journey in
order to comply therewith, deliberately considered and carefully
and thoughtfully meditated over the nature and the consequences
of the acts which, under orders received from the said datto, he
was about to carry out, and to that end provided himself with a
weapon, concealing it by wrapping it up, and started on a journey
of a day and a night for the sole purpose of taking the life of two
unfortunate persons whom he did not know, and with whom he had
never had any trouble; nor did there exist any reason which, to a
certain extent, might warrant his perverse deed. The fact that the
arrangement between the instigator and the tool considered the
killing of unknown persons, the first encountered, does not bar the
consideration of the circumstance of premeditation. The nature
and the circumstances which characterize the crime, the perversity
of the culprit, and the material and moral injury are the same, and
the fact that the victim was not predetermined does not affect nor
alter the nature of the crime. The person having been deprived of
his life by deeds executed with deliberate intent, the crime is
considered a premeditated one as the firm and persistent intention
of the accused from the moment, before said death, when he
received the order until the crime was committed in manifestly
evident. Even though in a crime committed upon offer of money,
reward or promise, premeditation is sometimes present, the latter
not being inherent in the former, and there existing no
incompatibility between the two, premeditation can not necessarily
be considered as included merely because an offer of money,
reward or promise was made, for the latter might have existed
without the former, the one being independent of the other. In the
present case there can be no doubt that after the crime was
agreed upon by means of a promise of reward, the criminal by his
subsequent conduct showed a persistency and firm intent in his
plan to carry out the crime which he intentionally agreed to
execute, it being immaterial whether Datto Mupuck did or did not
conceive the crime, once Manalinde obeyed the inducement and
voluntarily executed it.
The facts in this case are quite different from those in the
proceedings instituted by the United States vs. Caranto et al.,
wherein the decision on page 256 of Volume IV of the Philippine
Reports was rendered, as may be seen from the mere perusal of
the statement of facts. It is also different from the case where a
criminal who has made up his mind to kill a certain individual kills a
person other than the object of his criminal intent. On going to
Cotabato the Moro Manalinde intended to and did kill the first two
persons he encountered, and the fact that the victim was not
predetermined does not alter the nature, conditions, or
circumstances of the crime, for the reason that to cause the violent
death of a human being without any reasonable motive is always
CRIM LAW FINALS I ACJUCO 54

punishable with a more or less grave penalty according to the

nature of the concurrent circumstances.

For the above reasons and in view of the fact that no mitigating
circumstance is present to neutralize the effects of the aggravating
ones, it is our opinion that the judgment appealed from should be
affirmed with costs provided however, that the penalty imposed on
the culprit shall be executed in accordance with the provisions of
Acts. Nos. 451 and 1577, and that in the event of a pardon being
granted he shall likewise be sentenced to suffer the accessory
penalties imposed by article 53 of the Penal Code. So ordered.

TREACHERY
G.R. No. L-32914 August 30, 1974

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
LAUREANO SANGALANG, accused-appellant.

Office of the Solicitor General Felix Q. Antonio, Assistant Solicitor

General Octavio R. Ramirez and Solicitor Ma. Rosario Quetulio
Losa for plaintiff-appellee.

Narciso V. Cruz, Jr. for accused-appellant.

AQUINO, J.:p

This is a murder case. The testimonies of the two prosecution

eyewitnesses disclose that at around six o'clock in the morning of
June 9, 1968 Ricardo Cortez left his nipa hut located at Sitio Adlas,
Barrio Biluso, Silang, Cavite to gather tuba from a coconut tree
nearby. Flora Sarno, his wife, was left inside the hut. While he was
CRIM LAW FINALS I ACJUCO 55
on top of the tree gathering tuba, he was struck by a volley of
shots. He fell to the ground at the base of the coconut tree.
His wife Flora heard three successive shot coming south of the
hut. She went outside the hut. From a distance of about twenty-five
meters, she saw five men, each armed with a long firearm, firing at
her husband. He was already wounded and was lying on the
ground at the foot of the coconut tree. His assailants were about
five meters away from him.
She recognized Laureano Sangalang as one of the five armed
men who were firing at her husband. She and her brother Ricardo
had known Sangalang since their childhood. She also recognized
Conrado Gonzales, Irineo Canuel, Perino Canuel and Eleuterio
Cuyom as the other malefactors.
Flora ran towards the place where her husband had fallen. She
shouted, "Bakit ninyo pinagbabaril ang aking asawa". The five
persons fired at her. She was then about twenty meters away from
them. She retreated to the hut for cover. She heard some more
shots. After the lapse of about five minutes, Laureano Sangalang
and his companions left the place. When Flora returned to the spot
where her husband was prostrate, he was already dead.
On the occasion already described, Ricardo Sarno, twenty-seven
years old, a brother of Flora, was inside his own nipa hut which
was about ten meters away from Flora's hut. He was drinking
coffee. His wife and children were eating breakfast. He heard
several shots. He came out of his hut. He saw his brother-in-law
being shot by Laureano Sangalang, Eleuterio Cuyom, Perino
Canuel, Irineo Canuel and Conrado Gonzales. He saw Sangalang
using a Garand carbine in shooting his brother-in-law. The latter
fell from the top of the coconut tree after he was shot (10 tsn). His
sister Flora was trying to approach her husband but she had to flee
to her hut when Sangalang and his companions fired at her. He
wanted to join her but he was likewise fired upon by the five men.
So, he retired and took refuge in his own hut.
Later, Sarno saw his sister Flora, sitting inside her hut. He followed
her after she left the hut and went to see her dead husband, who
was lying on the ground, face up, at the base of the coconut tree.
When he noticed that his brother-in-law was already dead, he
gathered his children and brought them to Sitio Biga, which was
more or less thirty meters away from his hut in Sitio Adlas. Ricardo
reported the killing to the chief of police who went to the scene of
the crime with some policemen and Constabularymen.
The necropsy report shows that the twenty-five-year-old Cortez
sustained twenty-three gunshot wounds on the different parts of
the body, fourteen of which were entrance-wounds, and nine were
exit-wounds (Exh. A and B). He died due to the multiple gunshot
wounds (Exh. C).
On June 10, 1968 or on the day following the killing, Flora and
Ricardo were interrogated by the Silang police. They executed
sworn statements before the Municipal Judge pointing to Laureano
Sangalang, Conrado Gonzales, Irineo Canuel, Perino Canuel and
Eleuterio Cuyom as the assassins of Ricardo Cortez. Flora said in
her statement that she knew those persons because from time to
time they used to pass by her place. They resided at Barrio
Capitula, Dasmariñas, which is near Barrio Adlas. On the basis of
those statements, the police filed on June 10 in the Municipal
Court a complaint for murder against the five aforenamed persons.
Sangalang was arrested. He posted bail in the sum of P50,000 on
June 13. He waived the second stage of the preliminary
investigation. The other accused have not been apprehended. On
August 8, 1968 the Provincial Fiscal filed an information for murder
against Sangalang.
After trial, the Court of First Instance of Cavite, Tagaytay City
Branch, rendered a judgment convicting Sangalang of murder,
sentencing him to reclusion perpetua and ordering him to pay the
heirs of Ricardo Cortez an indemnity of twelve thousand pesos
and to pay his widow moral damages in the sum of ten thousand
pesos (Criminal Case No. TG-162). Sangalang appealed.
The appellant, a fifty-six-year old farmer, admitted that he knew
Cortez and that he knows his wife, Flora Sarno. He pleaded an
alibi. He declared that in the afternoon of June 8, 1968 he and
Crispulo Mendoza went to the house of Julian Gatdula at Dapitan
Street, Sampaloc, Manila. He arrived at Gatdula's place at six
o'clock. He wanted to borrow money from Gatdula to defray the
matriculation fees of his children.
As Gatdula had no money at that time, he advised Sangalang to
wait until morning. He would try to raise the sum of two hundred
pesos which Sangalang desired to borrow. Sangalang and
Mendoza agreed. They allegedly slept in Gatdula's house on the
night of June 8th. The next morning, they breakfasted in that
house. At about ten o'clock on June 9, Gatdula delivered the two
hundred pesos to Sangalang. He and Mendoza then went to the
Central Market in Manila and then to Quiapo. They returned to
Cavite and arrived at seven o'clock in the evening of June 9 in
Barrio Capdula. Gatdula and Mendoza corroborated Sangalang's
alibi.
In this appeal Sangalang insists on his alibi and impugns the
credibility of the prosecution eyewitnesses, Mrs. Cortez and the
victim's brother-in-law, Ricardo Sarno. The basic issue is whether
their eyewitness-testimony that they saw appellant Sangalang as
one of the five armed persons, who riddled Cortez with fourteen
gunshot wounds of entry, is sufficient to overcome his alibi. In
essence, the case projects the ever recurring conflict in criminal
jurisprudence between positive identification and alibi.
The trial court rejected appellant's alibi. It noted that although his
witnesses, Mendoza and Gatdula, learned of his arrest, and
Mendoza even visited him in the municipal jail, Sangalang and his
witnesses did not interpose the defense of alibi when he was
investigated by the police and when he was summoned at the
preliminary investigation.
Sangalang points to certain discrepancies in the declarations of
Mrs. Cortez and her brother Ricardo Sarno. Those inconsistencies,
which are not glaring, strengthen their credibility and show that
their testimonies were not coached nor rehearsed. The
discrepancies may be attributed to deficiencies in observation and
recollection, or misapprehension of the misleading and confusing
questions during cross-examination, or to the defective translation
of the questions and answers but they do not necessarily indicate
a wilful attempt to commit falsehood (People vs. Selfaison, 110
Phil. 839; People vs. Resayaga, L-23234, December 26, 1973, 54
SCRA 350).
The controlling fact is that Mrs. Cortez and Sarno clearly and
consistently testified that they saw Sangalang, a person already
well-known to them, among the five armed persons who shot
Ricardo Cortez. That unwavering identification negates appellant's
alibi.
The prosecution did not prove the motive for the killing. On the
other hand, Sangalang did not show that Mrs. Cortez and Sarno
were impelled by a malicious desire to falsely incriminate him. .
Counsel de oficio meticulously examined the contradictions and
deficiencies in the evidence for the prosecution. He made a
spirited defense of the appellant. However, his efforts failed to cast
any reasonable doubt on Sangalang's complicity in the killing.
The victim was shot while he was gathering tuba on top of a
coconut tree. He was unarmed and defenseless. He was not
expecting to be assaulted. He did not give any immediate
CRIM LAW FINALS I ACJUCO 56

provocation. The deliberate, surprise attack shows that Sangalang

and his companions employed a mode of execution which insured
the killing without any risk to them arising from any defense which
the victim could have made. The qualifying circumstance of
treachery (alevosia), which was alleged in the information, was
duly established (See art. 14[16], Revised Penal Code). Hence,
the killing can be categorized as murder (See People vs. Sedenio,
94 Phil. 1046). Treachery absorbs the aggravating circumstance of
band(U. S. vs. Abelinde, 1 Phil. 568). Evident premeditation, which
was alleged in the information, was not proven.

The trial court correctly imposed the penalty of reclusion perpetua

on Sangalang (Arts. 64[1] and 248, Revised Penal Code).

Finding no error in its judgment, the same is affirmed with costs

against the appellant.

SO ORDERED.

5. IGNOMINY
[G.R. No. 115431. April 18, 1996]

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.

JOSE TORREFIEL, accused-appellant.

SYLLABUS

1. REMEDIAL LAW; EVIDENCE; ALIBI; CANNOT PREVAIL OVER

POSITIVE IDENTIFICATION OF THE ACCUSED AND ABSENT
PHYSICAL IMPOSSIBILITY TO BE AT THE SCENE OF THE
CRIME. - It is well-settled that the defense of alibi cannot prevail
over the positive identification of the accused. Furthermore, for
alibi to prosper, the accused must establish not only that he was
somewhere else when the crime was committed but that it was
also physically impossible for him to have been at the scene of the
crime at the time of its commission.

2. ID.; ID.; CREDIBILITY OF WITNESS; UPHELD ABSENT

IMPROPER MOTIVE. - It is significant to note that no improper
CRIM LAW FINALS I ACJUCO 57
motive can be imputed to Realidad Mangilog as would make her
testify falsely against accused-appellant, hence her testimony is
worthy of full faith and credit.
3. ID.; ID.; FACTUAL FINDINGS OF THE COURT OF APPEALS
CONCLUSIVE AND OUGHT NOT TO BE DISTURBED;
EXCEPTION. - The Court of Appeals appreciated abuse of
superior strength, aid of armed men and evident premeditation as
aggravating circumstances. These findings are factual and the rule
is that findings of the Court of Appeals upon factual questions are
conclusive and ought not to be disturbed unless shown to be
contrary to the evidence on record, and, in this case, there is no
such showing.
4. CRIMINAL LAW; CONSPIRACY; MAY BE INFERRED FROM
THE ACTS OF THE ACCUSED WHICH INDICATE THEIR
COMMON INTENTION TO COMMIT THE CRIME. This contention
we also find untenable, conspiracy being clearly manifest in this
case as was correctly found by the Court of Appeals. For collective
responsibility to be established, it is not necessary that conspiracy
be proved by direct evidence of a prior agreement to commit the
crime as only rarely would such an agreement be demonstrable
since in the nature of things criminal undertakings are rarely
documented by agreement in writing. Conspiracy may be inferred
from the acts of the accused immediately prior to, during and right
after the shooting of the victim which indicate their common
intention to commit the crime. The record shows that: (1) all the
accused which include accused-appellant arrived together at the
scene of the killings; (2) they were all fully armed; (3) three of them
simultaneously shot to death Leopoldo Mangilog, while an
undetermined number shot and stabbed to death Reynaldo
Mangilog; (4) the attack on the two victims was executed
simultaneously; and (5) the accuseds statement to the effect that
the victims were responsible for the fact that the military men were
running after them. This tends to establish a motive on their part to
kill the victims. All these indubitably indicate a concerted effort on
the part of the accused on a common design to kill the victims.
5. ID.; ID.; THE ACT OF ONE CONSPIRATOR IS THE ACT OF
ALL. - Conspiracy having been adequately shown, all the accused
are answerable as co-principals regardless of the degree of their
participation. In fact, it is not necessary to ascertain the individual
participation in the final liquidation of the victims or to ascertain the
precise modality or extent of participation of each individual
conspirator as the applicable rule is that the act of one conspirator
is the act of all of them. It hardly matters, therefore, that accused-
appellant did not actually participate in the killing of Reynaldo
Mangilog or of Leopoldo Mangilog.
6. ID.; QUALIFYING CIRCUMSTANCE; TREACHERY; PRESENT
WHEN VICTIMS WERE CLEARLY NOT IN ANY POSITION TO
DEFEND THEMSELVES; CASE AT BAR. - As alleged in the
informations and as correctly observed by the Solicitor General,
the killing of the victims was qualified by treachery. Leopoldo
Mangilog was shot while he was serving the accused coffee or
shortly thereafter. Reynaldo Mangilog, on the other hand, was shot
and stabbed to death while he was taking a bath. It may be added
that the victims were naturally unarmed at that time and their
execution was done so early in the morning, that is, when they had
practically just awakened. Under the circumstances, the victims
were clearly not in any position to defend themselves from the
sudden and unexpected attack of the accused. These
circumstances are manifestly indicative of the presence of the
conditions under which treachery may be appreciated, i.e., the
employment of means of execution that gives the person attacked
no opportunity to defend himself or to retaliate, and that said
means of execution was deliberately or consciously adopted.
7. ID.; ID.; ID.; ABSORBS THE CIRCUMSTANCES OF ABUSE OF
SUPERIOR STRENGTH AND AID OF ARMED MEN. - However,
we believe, and so hold, that treachery absorbs the circumstances
of abuse of superior strength and aid of armed men, as it appears
that the accused saw to it that they were armed and far
outnumbered the victims precisely to ensure the accomplishment
of their criminal objective.
8. ID.; MURDER; PROPER IMPOSABLE PENALTY. - Under
Article 248 of the Revised Penal Code, the prescribed penalty for
murder is reclusion temporal in its maximum period to death. Since
we find accused-appellant guilty beyond reasonable doubt of the
crime of murder qualified by treachery in Criminal Cases Nos.
2909 and 2910 and that the generic aggravating circumstance of
evident premeditation was also attendant, the penalty of reclusion
perpetua should be imposed in each case, applying Article 63 of
the Revised Penal Code and considering the proscription against
the imposition of the death penalty at the time the crimes were
committed.
APPEARANCES OF COUNSEL
The Solicitor General for plaintiff-appellee.
Cyril A. Tangle for accused-appellants.
DECISION
HERMOSISIMA, JR., J.:
Accused-appellant Jose Torrefiel; Hilario Masgong alias Mark;
Casiano Masgong alias Manny; Saturnino Suyod alias Ka Eddie;
Jerry Delicano alias Ka Cocoy; Luciano Solanoy, Jr., alias Ka
Balot; Noel Semira alias Ka Nido; Ricky David alias Ka Macky; and
Alex Francisco alias Ka Jing, were charged in Criminal Cases Nos.
2909 and 2910 for Murder and in Criminal Case No. 2911 for
Robbery before the Regional Trial Court, Branch 8, Kalibo, Alklan.
These cases were, upon agreement of the parties, jointly tried,
since they arose from the same incident and involved the same
parties. The trial proceeded as against the accused-appellant Jose
Torrefiel only, the rest of the accused having remained at large.
After trial, the court a quo convicted accused-appellant1 in each of
the cases, the dispositive portions of which are quoted
hereinbelow:
In Criminal Case No. 2909 for Murder:
WHEREFORE, this Court finds the accused, Jose Torrefiel, guilty
beyond reasonable doubt of the crime of murder and hereby
sentences the accused to a penalty of imprisonment of Seventeen
(17) years, Four (4) months and One (1) day to Eighteen (18)
years and Eight (8) months.
The accused is hereby ordered also to indemnify the family of the
victim the amount of FIFTY THOUSAND PESOS (P50,000.00) by
way of damages. x x x2
In Criminal Case No. 2910 for Murder:
WHEREFORE, this Court finds the accused, Jose Torrefiel, guilty
beyond reasonable doubt of the crime of murder and hereby
sentences the accused to a penalty of imprisonment of Seventeen
(17) years, Four (4) months and One (1) day to Eighteen (18)
years and Eight (8) months.
The accused is hereby ordered also to indemnify the family of the
victim the amount of FIFTY THOUSAND PESOS (P50,000.00) by
way of damages. x x x3
In Criminal Case No. 2911 for Robbery:
WHEREFORE, this Court finds the accused Jose Torrefiel guilty
beyond reasonable doubt of the crime of Robbery and sentences
the accused to suffer the penalty of Twelve (12) years and One (1)
day to Fourteen (14) years and Eight (8) months. x x x.4
CRIM LAW FINALS I ACJUCO 58
Accused-appellant Jose Torrefiel, appealed to the Court of
Appeals. After considering the evidence and the law involved, the
Court of Appeals affirmed the judgment of conviction in all the
cases but refrained from entering judgment in Criminal Cases Nos.
2909 and 2910 for murder, having ascertained that the proper
imposable penalty for each of said crimes is reclusion perpetua,
and instead, certified these two (2) cases to us for final
determination pursuant to Section 13 of Rule 124 of the 1985
Rules on Criminal Procedure.
The facts as correctly summarized by the prosecution in its Brief
are as follows:5
On May 26, 1989 at about 5:00 oclock in the morning at Barangay
Naligusan, Ibajay, Aklan, Realidad Mangilog woke up early to
prepare their breakfast. Her husband Leopoldo Mangilog and her
son Reynaldo were about to join her downstairs, when someone
knocked at the kitchen backdoor (TSN, March 21, 1990, pp. 3-4).
It was Leonardo who opened the door. When the door was opened
appellant Jose Torrefiel armed with a bolo and a hand gun entered
the house first followed by Masiano Masgong, Hilario Masgong,
Alex Francisco, Saturnino Suyod and Noel alias Nido in that order,
who were all armed with long firearms. (TSN, Ibid., p. 5)
The group greeted Leopoldo as How are you Tay? to which the
latter answered as usual. Leopoldo even served the newcomers
with coffee, but because the coffee was not sufficient for them,
Realidad asked Hermogenes Calizo, who was then the errand boy
of the Mangilog (sic), to buy coffee from the store. (TSN, Id., pp. 5-
6).
The group of appellant Torrefiel did not even touch or taste the
coffee served them by Leopoldo. Instead, appellant, Casiano
Masgong and Satur Suyod aimed their guns at Leopoldo and
started shooting him to death (TSN, Id., p. 6).6 Simultaneous to
the shooting of Leopoldo inside the house by the group of
appellant was the shooting and stabbing of Reynaldo who was
then taking a bath inside the bathroom located outside of the
house by the other members of the group who did not enter the
house. (TSN. id., p. 7)
After the killing of Leopoldo and Reynaldo, the accused ransacked
the house and took P500.00 cash, wrist watch, kitchen wares,
grocery items, chickens and guitar. (TSN, Id., p. 10)
Before the accused left the house of the victims, they even fired
their guns at random. They were blaming the victims to be
responsible to the incident why the military was running after them.
They were also telling the people along the road that the fish is
okey and could be ready to be butchered (Id., p. 11).
Accused-appellant invoked the defense of alibi, claiming that at
about 7:00 oclock in the morning of May 26, 1989, he was at the
house of Barangay Captain Benedicto Puod in Barangay
Agbalogo, Makato, Aklan, which can be reached in an hour and a
half( 1 1/2) from Barangay Naligusan, Ibajay, Aklan, the scene of
the incident. He had gone on vacation to Barangay Agbalogo on
May 22, 1989 and attended the fiesta on May 25, 1989. He had
remained in the said barangay since then upon the advice of his
wife not to return to Barangay Naligusan, Ibajay, Aklan, appellants
place of residence, as the situation there was somewhat hot.7
Benedicto Puod confirmed appellants claim as to his whereabouts
in the morning of May 26, 1989, recounting that he and appellant
were, indeed, together drinking alcoholic drinks from 7:00 to 11:00
oclock in the morning on the occasion of the birthday of his child.8
In addition, Pedro Tosio as a witness testified as to the presence of
appellant at his house in Barangay Agbalogo in the morning until
about 5:00 oclock in the afternoon of May 25, 1989, the day of the
fiesta, declaring further that he also saw appellant pass by his
house on May 26, 1989.9
In his appeal, accused-appellant interposed the following
assignment of errors:
I
THE LOWER COURT ERRED IN FINDING THE ACCUSED-
APPELLANT GUILTY OF THE CRIME OF MURDER IN CRIMINAL
CASE NO. 2909.
II
THE LOWER COURT ERRED IN FINDING THE ACCUSED-
APPELLANT GUILTY OF THE CRIME OF MURDER IN CRIMINAL
CASE NO. 2910.
III
THE LOWER COURT ERRED IN FINDING THE ACCUSED-
APPELLANT GUILTY OF THE CRIME OF ROBBERY IN
CRIMINAL CASE NO. 2911.10
On the first and third assignment of errors, accused-appellant
maintains his defense of alibi, stressing that, not being around at
the time and place of the incident as he was at Barangay
Agbalogo, Makato, Aklan, he could not have murdered Leopoldo
Mangilog and robbed the Mangillogs of their personal belongings.
We are not persuaded.
It is well-settled that the defense of alibi cannot prevail over the
positive identification of the accused.11 Furthermore, for alibi to
prosper, the accused must establish not only that he was
somewhere else when the crime was committed but that it was
also physically impossible for him to have been at the scene of the
crime at the time of its commission.12
That accused-appellant had been positively identified as one of the
culprits by prosecution witness Realidad Mangilog cannot be
doubted. The Mangilogs and the accused-appellant had known
each other for years as neighbors. Accused-appellant whose
parents reside in Barangay Agbalogo, Makato, Aklan, established
residence in Barangay Naligusan, Ibajay, Aklan when he got
married to a resident there. Since his house is only about one
hundred and fifty (150) meters away from that of the Mangilogs,
there were occasions when accused-appellant would visit the
Mangilogs, usually for coffee, and that Leopoldo Mangilog would
also go to the accused-appellants house. Indeed, eyewitness
Realidad Mangilog knows the accused-appellant so well that she
could not have been mistaken in identifying appellant as one of
those armed men responsible for the death of her husband and
son on that fateful morning of May 26, 1989. She testified thus:
Q. When your husband open (sic) the door, was there somebody
who got inside?
A. Yes, sir.
Q. Where were you at that time?
A. I am (sic) at that time at the door dividing the sala and the dining
room.
xxx xxx xxx
Q. Were you able to recognized (sic) those persons who entered
your house?
A. I can recognized (sic) Jose Torrefiel leading the group and
Masiano Masgong alias Manny, Alex Francisco followed by Satur
CRIM LAW FINALS I ACJUCO 59
or Saturnino Suyod and the other one was Noel Semira alias
Nido.13
Moreover, the two other prosecution witnesses, Coreto Maguirang
and Hermogenes Calizo, confirmed the presence of accused-
appellant in Barangay Naligusan, Ibajay, Aklan at the time of the
incident in question. Maquirang testified that while he watched
over his carabao which was grazing on May 26, 1989 at around
5:00 oclock in the morning, he saw the appellant and his group as
they passed by him from a distance of about ten (10) meters
heading towards the direction of the house of Leopoldo Mangilog
in Barangay Naligusan, Ibajay, Aklan.14 He could not be mistaken
as to appellants identity since he had on several occasions seen
appellant together with the same group of armed men.15 Calizo,
on the other hand, claimed that he had seen appellant face to face
in the house of the Mangilogs that same morning of May 26, 1989
shortly before the subject incident occurred since at that time he
was living in said house. He only happened to be sent out by
Realidad Mangilog to buy coffee so he did not get to see the actual
killing of Leopoldo and Reynaldo Mangilog.16
It is significant to note that no improper motive can be imputed to
Realidad Mangilog as would make her testify falsely against
accused-appellant; hence her testimony is worthy of full faith and
credit.17
Evidently complementing the positive identification of accused-
appellant as one of the perpetrators of the crimes charged is his
failure to prove that it was physically impossible for him to be at
Barangay Naligusan, Ibajay, Aklan at the time of the incident,
assuming that his claim that he went to the house of Barangay
Captain Puod at 7:00 oclock in the morning of May 26, 1989 was
true. As testified to by appellant himself, it would take just one and
a half (1 ) hours to reach Barangay Naligusan, Ibajay, Aklan from
Barangay Agbalogo, Makato, Aklan. Needless to state, it would not
at all be impossible for appellant to be at Barangay Agbalogo at
7:00 oclock in the morning or some two hours after the crimes
were committed at Barangay Naligusan.
In his second assignment of error, accused-appellant contends
that he had nothing to do with the killing of the victim Reynaldo
Mangilog, obviously relying on the testimony of Realidad Mangilog
to the effect that Reynaldo Mangilog was shot and stabbed to
death by the members of appellants group who stationed
themselves outside the house.
This contention we also find untenable, conspiracy being clearly
manifest in this case as was correctly found by the Court of
Appeals. For collective responsibility to be established, it is not
necessary that conspiracy be proved by direct evidence of a prior
agreement to commit the crime18 as only rarely would such an
agreement be demonstrable since in the nature of things criminal
undertakings are rarely documented by agreement in writing.19
Conspiracy may be inferred from the acts of the accused
immediately prior to, during and right after the shooting of the
victim which indicate their common intention to commit the
crime.20
The record shows that: (1) all the accused which include accused-
appellant arrived together at the scene of the killings; (2) they were
all fully armed; (3) three of them simultaneously shot to death
Leopoldo Mangilog, while an undetermined number shot and
stabbed to death Reynaldo Mangilog; (4) the attack on the two
victims was executed simultaneously; and (5) the accuseds
statement to the effect that the victims were responsible for the
fact that the military men were running after them. This tends to
establish a motive on their part to kill the victims. All these
indubitably indicate a concerted effort on the part of the accused
on a common design to kill the victims.
Conspiracy having been adequately shown, all the accused are
answerable as co-principals regardless of the degree of their
participation.21 In fact, it is not necessary to ascertain the
individual participation in the final liquidation of the victims22 or to
ascertain the precise modality or extent of participation of each
individual conspirator as the applicable rule is that the act of one
conspirator is the act of all of them.23 It hardly matters, therefore,
that accused-appellant did not actually participate in the killing of
Reynaldo Mangilog or of Leopoldo Mangilog.
As alleged in the informations and as correctly observed by the
Solicitor General, the killing of the victims was qualified by
treachery. Leopoldo Mangilog was shot while he was serving the
accused coffee or shortly thereafter. Reynaldo Mangilog, on the
other hand, was shot and stabbed to death while he was taking a
bath. It may be added that the victims were naturally unarmed at
that time and their execution was done so early in the morning,
that is, when they had practically just awakened. Under the
circumstances, the victims were clearly not in any position to
defend themselves from the sudden and unexpected attack of the
accused.24 These circumstances are
manifestly indicative of the presence of the conditions under which
treachery may be appreciated, i.e., the employment of means of
execution that gives the person attacked no opportunity to defend
himself or to retaliate, and that said means of execution was
deliberately or consciously adopted.25
The Court of Appeals appreciated abuse of superior strength, aid
of armed men and evident premeditation as aggravating
circumstances. These findings are factual and the rule is that
findings of the Court of Appeals upon factual questions are
conclusive and ought not to be disturbed unless shown to be
contrary to the evidence on record,26 and, in this case, there is no
such showing. However, we believe, and so hold, that treachery
absorbs the circumstances of abuse of superior strength and aid of
armed men, as it appears that the accused saw to it that they were
armed and far outnumbered the victims precisely to ensure the
accomplishment of their criminal objective.27
Under Article 248 of the Revised Penal Code, the prescribed
penalty for murder is reclusion temporal in its maximum period to
death. Since we find accused-appellant guilty beyond reasonable
doubt of the crime of murder qualified by treachery in Criminal
Cases Nos. 2909 and 2910 and that the generic aggravating
circumstance of evident premeditation was also attendant, the
penalty of reclusion perpetua should be imposed in each case,
applying Article 63 of the Revised Penal Code and considering the
proscription against the imposition of the death penalty at the time
the crimes were committed.
WHEREFORE, the decisions of the trial court are hereby
AFFIRMED with the MODIFICATION that the accused-appellant is
sentenced to suffer the penalty of reclusion perpetua for each case
of murder (Criminal Cases Nos. 2909 and 2910).
SO ORDERED.
[G.R. No. 125633. December 9, 1999]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.
ROLANDO ALFANTA y ALO, accused-appellant.
DECISION
VITUG, J.:
Before this Court, by way of automatic review, is the decision,
dated 29 July 1996, of the Regional Trial Court of Makati City,
Branch 82, convicting[1] accused-appellant Rolando Alfanta y Alo
CRIM LAW FINALS I ACJUCO 60
of rape with two aggravating circumstances and sentencing him to
suffer the extreme penalty of death.
Rolando Alfanta was charged with the crime of rape in an
information that simply read:
That on or about the 26th day of August, 1995, in the City of
Makati, Philippines and within the jurisdiction of this Honorable
Court, the above-named accused, by means of force and
intimidation, did then and there willfully, unlawfully and feloniously
have carnal knowledge upon the person of one NITA FERNANDEZ
y JOSEFA against her will and consent.[2]
When arraigned on 27 September 1995, accused-appellant
entered a plea of not guilty to the crime charged. Trial thereupon
ensued.
The evidence of the parties has been recited in good detail by the
trial court in its decision under review, thus:
The first prosecution witness was Dr. Noel Minay, Medico Legal
Officer of the National Bureau of Investigation who testified that on
August 27, 1995 at around 5:45 in the afternoon, he performed a
physical examination and medico genital examination on one Nita
Fernandez for alleged rape. Upon physical examination he found
mark swelling on the left lower jaw or on the mandibular area left
portion; and, upon examination of the hymen, he found that the
labia majora and minora gaping, similar to the appearance of a
woman who had just given birth; or a normal appearance as a
result of several sexual intercourses that had been performed. He
submitted a report on his findings (Exhibit A).
The next witness was Nita Fernandez, the offended party alleged
in the information who testified that on August 26, 1995 at around
12:00 o'clock midnight, while asleep in the residence of a friend at
AFOVAI Fort Bonifacio, Makati city, a man whom she had not seen
before suddenly entered the house where she was sleeping, pulled
her, boxed her jaw and put his hand on her mouth, and told her
that if she will not obey him, he will kill her. She resisted, but could
not do anything. Thereafter, she was forced to climb a fence.
Because of fear, as the man was holding a bolo, she followed.
After climbing the fence, the man instructed her to go to a vacant
house. She followed, as instructed. While at the vacant house, she
was told to undress, she did because of fear, as the man was
holding a bolo. Thereafter, the man embraced and kissed her.
Then she was told to lie down and told to separate her legs. The
man inserted his penis into her vagina. After inserting the mans
penis to her vagina, she was told to lie face down. She complied,
thereafter, the man inserted his penis into her anus. After inserting
the mans penis into her anus, she was told to turn around face up.
All these acts of the man hurt her. After turning around face up, the
man inserted his fingers in and out into her private part. After the
man had finished inserting his fingers in and out of her private part,
she was told to go near him and lie beside him, and not to dress
up as he was going to take a rest and at the same time telling her
not to tell what happened to others saying that lahat ng nirape ko
ay pinatay ko dahil sa ayokong may magsumbong. All the time the
man was inserting his penis and fingers into her private part and
into her anus, she was shouting: tulungan po ninyo ako,' but
nobody responded. Noticing that the man was already sleeping,
she suddenly got the knife at waist of the man and stab the man
on his chest. The knife broke. She suddenly grabbed the bolo and
hack the man several times. Thereafter, she put on her dress, got
hold of the bolo and ran to the signal office of soldiers. When she
arrived at the signal office of soldiers, she told the persons she met
that she killed a man. The bolo was taken from her by the soldiers.
With, soldiers, they went to the place where she was raped. They
found the man lying down still alive. The man was brought to the
hospital. The man turned out to be accused Rolando Alfanta y Alo.
Thereafter, she executed an affidavit (Exh. C), narrating what
happened to her to the police; and was brought to the NBI Medico-
Legal Officer for examination.
On cross examination she testified that, from Valle Verde, Pasig
City, where she worked as housemaid, she went to her friends
house named Patrick because she brought mongo and because
she and Patricks wife Inday, are friends, arriving in the house of
Patrick at 6:30 in the evening of August 26, 1995. She was not
able to go back to her place of work at Valle Verde, Pasig because
it was already late at night and was told to sleep at Patricks house.
Earlier that evening, at 9:00, she saw accused passed by in front
of the house. Aside from her two (2) other persons slept in the
house of Patrick, Inday and son. She slept in the sala, while Inday
and her son in a room. The door of the house was closed, but was
not locked. In entering the house were she slept, one has to reach
the sala first. When awakened, she shouted, but nobody heard her
because they were sleeping and at the same time the accused
placed his hand on her mouth. She was really afraid because she
was boxed on her chest and accused was holding a bolo. While
outside the house she was boxed. At the garage, which was not
lighted, she was told to undress. She followed, because of fear.
Accused also undressed himself. While accused was on top of her,
holding a bolo, she cried. Accused is not her sweetheart. She even
said, why will I hack him if he is my sweetheart.
The last witness for prosecution was Lilia Hogar of the Womens
Desk Unit, Makati Police Station who testified that she came into
the possession of the bolo, Exh. D, because Nita Fernandez was
brought to Sub-Station A. The bolo, which was brought by Nita
Fernandez to the Military Signal Village, was in turn given to the
Central Police Desk wherein she is the Investigator. After the bolo
was handed to her by the soldiers of the Signal Village, she
conducted an investigation. Based on her investigation, she
learned from Nita Fernandez that when Nita Fernandez woke up at
12:00 midnight on August 26, 1995, Nita Fernandez saw a man
standing beside her. Nita was punched on the left portion of the
face and ordered her to go outside, instructed to climb over a
fence on the other side of the house. After climbing the fence, Nita
Fernandez was told to undress, was boxed on her breast and was
told to lie down in a vacant house owned by Captain Pascua,
where suspect raped Nita Fernandez. On their way to the hospital
on board the Makati Police car, she asked accused why he rape
Nita Fernandez. Accused answered that Fernandez was not telling
the truth because they were sweethearts.
Defense presented the accused. Accused testified that on August
26, 1995, while at AFOVAI Village, Municipality of Makati, fixing the
fence of the house of General Renato Icarma together with many
other laborers, somebody told him that his wife was waiting for him
in the house of Captain Pascua. At 10:00 oclock that evening, he
went to the house of Captain Pascua; and upon reaching the
house, he knocked, and called Patrick Augusto Ablon, the
caretaker of Captain Pascua. Belinda Ablon, the cousin of Patrick
Augusto Ablon, opened the door. After opening the door, Nita
Fernandez, his live-in partner for almost a year came out, in an
angry mood, because she has been waiting for him for long, and
asked him why he was late. He explained that he did not expect
her to come, as his understanding with Nita Fernandez was, he will
call her by phone or write her before she comes. Then Nita
Fernandez told him that they talk outside as she was ashamed
with the neighbor, and they will disturb the child who was sleeping.
After half hour talking, he invited Nita to sleep. He and Nita went to
a vacant house, owned by a Colonel passing a fence. When they
arrived in the vacant house, it was closed, so they slept in the
terrace. He denied doing what Nita Fernandez claimed he did. He
claimed that, he was surprised why Fernandez hacked him, for he
knows of no reason why Nita Fernandez will hack him. He believes
that Nita Fernandez concocted the story of rape because of fear
that he will file a case against Nita Fernandez for hacking him.
CRIM LAW FINALS I ACJUCO 61
On cross-examination, accused testified that, he has been staying
in the house of General Romeo Icarma (the house where he and
15 other workers were constructing a fence), since 1990. His
livelihood was, as a Mason, since 1993. In February 1995, the
daughter of Nita Fernandez named, Lucia who is married to Lito
introduced him to Nita. He and Nita became sweethearts in
February 1995. They have not live together because Nita was
working at Valle Verde. They only meet during Nitas day off. He
has been at Nitas place of work, but he used to call then at her
telephone numbers which are 6326062 and 6356060. They used
to see each other at Gen. Icarmas place where he lived. On
August 26, 1995, when the incident in questioned happened, Lucia
and Lito were no longer residing at Gen. Icarmas place because
they were told to leave in April 1993. On August 26, 1995, while in
the squatters area, just 100 meters away from the house of Gen.
Icarma, Nita came, looking for him. Because Nita does not know
the workers in Gen. Icarmas house, Nita left and went to the house
of Captain Pascua, just at the back of the house of Gen. Icarma.
While at the squatters area, Melchor Rudy Abella told him that Nita
was looking for him. He went to the house of Captain Pascua. At
Captain Pascuas place, he met Nita. Present in the house of
Captain Pascua were Augusto Ablon, his wife Rubylin, Belinda, a
cousin and a small child who were all awake, except the child.
Although Ablon was very much willing to accommodate him in
Ablons house, he brought Nita to the house of the Air Force
Colonel because if it rains, there is a roof to protect them and
ashamed to stay at Ablons house. Even Nita does not like to sleep
in Ablons place, saying that instead of sleeping at Ablons place,
she prefers to go back at Valle Verde. He did not allow Nita to go
back at Valle Verde because it was already late at night and if
anything happens to her, her daughter who knows his relationship
with Nita will blame him. He did not bring Nita to Gen. Icarmas
house because it is crowded and the Colonels house is just 20
meters from Captain Pascuas house. They went to the Colonels
house, climbing the fence. When they climbed the wall, he was
carrying banig, pillow and blanket, and did not notice that Nita was
carrying a knife. Nobody live in the Colonels house and was
closed. They slept in the terrace of the house on a cement flooring.
While he was sleeping Nita hacked him with a kitchen knife. When
hacked, he just said aray. The bolo was not used in hacking him.
After stabbing him, Nita left and went to the Military Police leaving
the kitchen knife. When the Military Police arrived, he was no
longer at the Colonels house because he went to another house,
where he slept. After he was stabbed, he asked the assistance of
Ablon. Ablon was the one who called for the Military Police. He did
not leave the colonels house. He just stayed in the premises.
Despite his wounds, he was able to sleep and woke up at 5:00 in
the morning. When asked why Nita stabbed him, he said that it
was because he hurt Nita by holding Nita's hand and pushing her
on her chest when Nita insisted in leaving for Valle Verde; and
because he hurt Nita, he did not file a complaint against Nita for
hacking him.[3]
In the decretal portion of the decision, the court a quo has
pronounced judgment, thus:
WHEREFORE, this court finds accused Rolando Alfanta y Alo
guilty beyond reasonable doubt of the crime of rape, penalized by
Art. 335 of the Revised Penal Code, as amended, with aggravating
circumstances of nighttime and ignominy, he is hereby sentenced
to suffer the maximum penalty of death, and indemnify
complainant Nita Fernandez the sum of P50,000.00, plus the costs
of the suit.[4]
Now before the Court, accused-appellant seeks the reversal of the
conviction and the imposition of the death penalty decreed by the
trial court; he contends that -
I. THE TRIAL COURT [HAS] ERRED IN FINDING AND
CONVICTING THE ACCUSED-APPELLANT OF THE CRIME OF
RAPE.
II. THE TRIAL COURT [HAS] ERRED IN TAKING INTO
CONSIDERATION THE AGGRAVATING CIRCUMSTANCES OF
NIGHTTIME AND IGNOMINY.[5]
The case can be described as not really being too far from the
typical rape cases that have been previously reviewed by the
Court. It is a case, like the instances before it, of two people, each
testifying on the same incident but making a clearly discordant
testimony. Since only the participants could directly testify on the
sexual congress, here conceded to have taken place, extreme
care is observed in evaluating the respective declarations of the
complainant and the accused. The doctrinally accepted rule is to
accord great respect over the assessment of the trial court on the
credibility of the witnesses and, in the usual words of similar import
employed by the Court, it would be best not to disturb the findings
of the court which has heard the evidence except only when a
material or substantial fact has truly been overlooked or
misappreciated which if properly taken into account can alter the
outcome of the case.[6] Regrettably for accused-appellant, no
such exceptive instances of possible oversight are perceived or
evident in this case.
Complainant gave a thorough narrative account, so found to be
credible by the trial court and by this Court as well, of what had
transpired during the late hour of the night in question.
Prosecutor Manola:
Q Mrs. Witness will you kindly tell the Honorable Court where you
were on August 26, 1995 at around 12:00 oclock midnight?
A At Fort Bonifacio.
Q What city or municipality?
A I do not know but it must be here sir.
Q Meaning Makati City?
A Yes sir.
Q Why were you there on that date and time Mrs. Witness?
A I was sleeping in my friends residence.
Court:
Q What is the address of that friends residence at Fort Bonifacio?
A At AFOVAI Fort Bonifacio Makati sir.
Q Why were you there at that time?
A Because I always go there and my sons residence is beside the
house of my friend sir.
Court: Proceed fiscal:
Pros. Manola:
Q Now, while you were there on that date and time at the house of
your friend in AFOVAI Fort Bonifacio Makati City do you recall of
any unusual incident that happened?
A There was sir.
Q Will you kindly tell what that incident was?
CRIM LAW FINALS I ACJUCO 62
A During that time while I was sleeping in the residence of my
friend suddenly there was a man who entered the house where I
was sleeping.
Q So when you saw that man entered the house what did he do if
any?
A I stood up because he was pulling me and then he put his hand
in my mouth sir.
Q What else happened after that?
A When I was resisting he boxed me and at that time he was
holding a bolo and he said if I will not obey him he will be going to
kill me sir.
Q After that what transpired next Mr. Witness?
A He forced me to climb the fence and then I saw he was holding a
bolo.
Q Did you climb over the fence?
A I climb sir because he forced me to climb the fence.
Q Were you able to go over the fence?
A When I was over the fence already he told me to go to a vacant
house.
Q How about the accused where was he when he ordered you to
climb over the fence?
A He was at my back and he told me to go first and then he
followed.
Q So after you went or cross over the fence what happened next
Madam witness?
A He told me to go to the vacant house and there he himself told
me to undress and I took off my clothes he embraced me and
kissed me sir.
Q Now when this man told you to go to the vacant house did you
obey him?
A I was told to go to the vacant house there he told me to undress.
Q Did you obey him?
A He told me to undress and he was holding a bolo.
Court:
Q The question of the prosecutor to you was did you obey the
instruction of the accused for you to undress?
A Yes sir.
Prosecutor Manola:
Q Tell the Honorable Court why you do followed the instruction of
that Man to go to that vacant house and to undress why did you
follow this instruction?
A I was afraid that he might kill me sir.
Q Why do you say that he might kill you?
A He like to rape me sir.
Court:
Q You did not answer the question of the prosecutor why were you
afraid?
A Because he was holding a bolo and he was at the same time
boxing me sir.
Prosecutor Manola:
Q So what happened after according to you you were instructed to
undress?
A He embraced me and kissed me and told me to lie down.
Q And did you lie down as instructed by this Man?
A He forced me to lie down and then he forced me to separate my
legs sir.
Q And what happened when you were forced to open your legs?
A He told me not to shout because if I will shout he will kill me and
the he inserted his penis to my vagina sir.
Q After this Man inserted his penis in your vagina or private part
what happened next Mrs. Witness?
A He told me to lie front my face down and he inserted his penis to
my anus sir.
Q After that what happened next Mrs. Witness?
A Then he told me again to lie down and at the same time he
inserted his fingers to my private parts going it and out sir.
Q After that what happened next Mrs. Witness?
A He lie down because he was already tired of molesting.
Q How about you what were you doing at that time when the
accused this person according to you lie down after he put his
fingers inside your private part?
A He asked me to go near him and lie down beside him.
Q Did you follow his instruction for you to lie near him?
A Yes sir because he was holding a bolo sir.
Q So what happened after you lie down beside this person?
A He told me to put on my dress and at the same time he also told
me that he does not want me to tell it to anybody because he have
raped many.
Q Now if this person whom according to you raped you inside the
court room would you be able to recognize him?
A Yes sir I could recognize him.
Q Will you kindly look around the court room if you could recognize
this person if he is inside?
Note: Witness pointed to a man who was pointed as the man who
raped him and when asked his name answered as Rolando
Alfanta.
Q Now after this person whom you just pointed to who answered
by the name of Rolando Alfanta uttered the words lahat nang ni
CRIM LAW FINALS I ACJUCO 63

rape ko ay pinapatay ko dahil sa ayokong may magsumbong what Q If that statement is shown to you would you be able to recognize
happened next Mrs. Witness? it?

A I pleaded to him and he said not to put on my dress because he A Yes sir.
is going to take a rest.
Q Now showing you a statement attached to the records of the
Q After that what happened next if any Mrs. Witness? prosecutors office consisting of two pages kindly go over it and tell
us if you recognize this statement?
A I saw him that he was sleeping already and then I suddenly got
the knife and stab him in the chest sir. A Yes sir I could recognize this.

Q After you stabbed him on his chest what happened next Mrs. Q Is that your statement
Witness?
A Yes sir.
A The knife broke and then I suddenly grabbed the bolo and hack
and hack him sir. xxx xxx xxx.

Q After you hacked this person who raped you what happened
next Mrs. Witness?
A I immediately put on my shirt and I got hold of the bolo and I run
to the signal where the soldiers were.
Q Now this bolo which according to you surrendered to the soldier
at the signal if you see this bolo again would you be able to
recognize it again?
A Yes sir.

Q Did you reach this place signal where there are soldiers
according to you?
A Yes sir.
Q And what did you do when then when you arrived there?
A I told him that I killed a person therein and give them the bolo.
Q What happened after that when you informed the solders at
signal that according to you you have killed a person what
happened next?
A We went to the person who raped me sir.
Q And did you see him there?
A Yes sir.
Q Who were with you when you went back to the place where you
were allegedly raped?
Prosecutor Manola:
We would like to make reservation for this witness to identify this
bolo when this bolo is presented by the policeman who is in
custody of this bolo.
Court:
Q How about the knife which according to you was seen by you at
the waist line of the accused did you bring it also?
A I did not bring it sir because it was broken sir it was only the bolo
that I brought.
Q Now while you were being raped did you shout for help?
A Yes sir.
Q How did you ask for help?
A I asked for help but they were sleeping they did not hear me sir.

A The soldiers sir. Q The question to you was how did you ask for help?

Q Did you find this person who raped you? A I cried and I said tulungan po ninyo ako.

A Yes sir. Q Did anybody respond to your cries for help?

Q What was he doing? A None sir.

A He was lying down sir. Q Now how did you feel while the accused was inserting his
private part to your private part?
Q What happened after that?
A It hurt sir my vagina and my anus, my mouth that he boxed me
A When we arrived there he was still alive and he was brought to sir.
the hospital.
Q Now why did you say that the accused was able to insert his
Q Who brought him to the hospital? penis into your vagina?

A The ambulance of the soldier. A He forced that to insert it.

Q Now do you remember having given a statement to the Makati Q Forced it to where?
Police in connection with what you have just narrated or told or
testified to this afternoon? A He forced it to enter my vagina sir.

A I could remember. Q Did you feel when the private part of the accused entered to
your vagina?
CRIM LAW FINALS I ACJUCO 64
A Yes sir I feel it sir.
Q By the way do you know the accused prior to the date that you
were awakened?
A I do not know him.
Q In short he is a complete stranger to you when he entered the
room?
A I saw him around 7:00 oclock in the evening that he was passing
thru the front of the house of my friends where I was sleeping.
Q At that time that you were awaken by the accused with whom
were you sleeping?
A Only me sir.
Prosecutor Manola:
Q Now you said that while you and the accused were lying down
first you stab him with the knife how many times have you stabbed
him with the knife?
A I was not able to count because I was afraid of him.
Q You said that after stabbing him with the knife which you broke
you got hold of the bolo you hacked him how many times have you
hacked him?
A I failed to count how many times. I hacked him because I was
afraid of him he might kill me.
Prosecutor Manola: That will be all for the witness.
Court: Cross-examination.
Atty. Manalo: With the permission of the Honorable Court.
Court: Proceed.
Atty. Manalo:
Q Now who were with you at the time when you were sleeping at
the house of your friend at AFOVAI Fort Bonifacio?
A One of their children so there were three and I was one.
Q Were you sleeping in one room?
A I was sleeping in the sala sir.
Q Now before you sleep in that house at the sala did you close the
door of that house?
A It was closed but it was not locked.
xxx xxx xxx.
Q Now when why were you interested in sleeping in the house of
your friend when you could already at the house of your employer?
A Because I was bringing mongo to my friend because I am
indebted to them sir.
Q Now why did you not return to your employer after giving or
handing that mongo to your friend?
A They told me to sleep there because it was already late at night.
Q By the way what time did you go there?
A Around 6:00 to 6:30 in the evening.
Q And what time did you reach your friend at AFOVAI?
A 6:30 sir.
Q And Valle Verde is just in Pasig isnt?
A Yes sir.
Q It is near where you are employed and it will take you one ride
only to reach that place isnt?
A Three rides sir.
Q Now which is first to be reached from the front door of the house
where you were sleeping at the time the place where you were
sleeping or the place of the room where the owner of the house
were sleeping?
A First it is the sala where he passed.
Q Now you said that the door was not locked was there any other
improvised locked placed in that door like a wood?
A They did not lock the door because they are in confident.
Q Now what is the name of the owner of the house where you
slept at that time?
A Patrick sir.
Q And how are you related to Patrick?
A His wife is my friend sir.
Q What is the name of his wife?
A Inday sir.
Q Now when you were awaken while you were sleeping in the sala
of the house of your friend Inday did you not shout when you saw
a person pulling you holding a bolo?
A I shouted but they did not hear me because they were sleeping
and at the same time he placed his hands on my mouth sir.
Q Now you said that you were boxed on the chest by the accused
how many times were you boxed by the accused on the chest?
A I do not know how many times I was boxed sir because I was
really afraid of him.
Q But you were sure that you were boxed at the chest?
A Yes sir.
Note: Witness demonstrating with her hands first pointing on her
chest and also on her mouth.
Q Was it strong?
A Yes sir it was strong because the following day it has marked.
Note: Witness holding on his left chin.
Q How about on the chest?
Note: Witness demonstrating it was pointed on her chest.
CRIM LAW FINALS I ACJUCO 65

A It was not too strong sir. A When I cried he was on top of me sir.

Q Did you fall down on your knee when you were hit by the blow? Q What was he doing when he was on top of you?

A Yes sir. A He was molesting me sir.

Q Where? xxx xxx xxx

A I fell on the ground down. Q Now what time did you see him passed by the house of your
friend according to you?
Q Where were you boxed by the accused?
A 9:00 oclock in the evening sir.
A Outside sir of the house.
Q Why were you sure that he was the one who passed by the
Q Now you said that you were ordered to undress and to lie down house of your friend?
on the ground is that correct?
A I saw him that he was passing.
A Yes sir.
Q Where were you at the time?
Q And you followed him?
A I was seating by the window sir.[7]
A He told me to undress in the garage and he also undressed
himself and because I was afraid because he was holding a bolo The testimony of the complainant about the incident is
sir. straightforward categorical, and relatively free from any serious
flaw. No compelling reason is advanced to sufficiently persuade
Q When he undressed himself was he still holding a bolo? the Court to conclude that the trial court has erred in giving due
weight and credence to the testimony of the complainant. Neither
A Yes sir one hand was holding the bolo the other one hand he is evidence adduced to show that the complainant has had any
was undressing himself. ulterior motive to prevaricate and enmesh accused-appellant in a
fabricated charge. The Court repeats the familiar doctrine that
Q Was it lighted the place? when a woman claims that she has been raped, she says in effect
all that is necessary to show such a fact so long as her testimony
A None sir. can meet the test of credibility,[8] for it is said that no woman in her
right mind will cry rape, allow examination of her private parts, or
Q How far were you when the accused was undressing himself? subject herself and her family to the humiliation concomitant to the
prosecution of the case, unless the story were true.[9]
A Near sir.
Testifying in his defense, accused-appellant claimed that he and
Q Did you see his private part when he undressed himself? the complainant had been lived-in partner for almost a year, and
that while they did sleep together on 26 August 1995 at the porch
A Yes sir. of the house of a certain Air Force officer, accused-appellant
denied any carnal knowledge of the victim that evening. In his
Q How big? appeal brief, accused-appellant sought to negate any possible or
likely use of violence or intimidation, considering that: (a) in the
Prosecutor Manola: Immaterial your honor. house where the victim was sleeping on the night of 26 August
1995, there were at least three persons (the caretaker of the house
Atty. Manalo: To test the credibility, your honor. Patrick Augusto Ablon, his wife Rubylin and the couples son) who
could have responded to any shout for help from the victim; (b) the
Court: Answer door of the house was purposely left unlocked in order to enable
accused-appellant to come into the house, and (c) when the victim
A It was dark and I was able to see and I do not know because I was made to climb a fence followed by the accused, she could
was afraid. have escaped but did not.

Atty. Manalo: The sweetheart theory of accused-appellant would appear to be

Q And then you lie down?
A He told me to lie down and he placed himself on top of me.
Q Was he still holding the bolo?
A Yes sir he was holding the bolo on his one hand.
Q How did you see him?
A When he was holding the bolo with his one hand while I he was
on top of me I cried and he was holding the bolo.
Note: Witness demonstrating the accused holding the bolo
upward.
another worn out strategy, often resorted to as a last ditch effort, to
exculpate oneself from criminal liability. No documentary evidence
of any sort, like a letter or a photograph or any piece of memento,
was presented to confirm a romantic liaison between accused-
appellant and the complainant. The latter testified:
Q Is it not a fact that you and the accused were sweethearts?
A No sir.
Q And that you went to that place AFOVAI just to meet him in that
place?
A No sir he is not my sweetheart. Why will I hack him if he is my
sweetheart?
CRIM LAW FINALS I ACJUCO 66
Q You hacked him with the bolo because of you are too much
jealousy is concerned because your sweetheart was then
womanizing?
Prosecutor Manola: Misleading your honor.
Atty. Manalo: I am on cross-examination your Honor.
Court: Answer.
A Why will I get jealous I have nothing to do with him. I do not
know him sir.
Atty. Manalo:
Q Really?
A I do not know him. I really do not know him sir.[10]
It would be rather strange an occurrence for a love-partner, if true,
to stab her beloved for petty reasons. The trial court was not out of
line when it made this evaluation; viz:
This Court cannot accept the claim of accused that he and
complainant Nita Fernandez were sweethearts, for such a claim
defies rationality, let alone common sense, because if they were
sweethearts, she will not hack him. Not only that, the manner on
which she stabbed and hacked him, first with a knife, then with a
bolo, shows a complete anger to vindicate the outrage on her. If
they were sweethearts, she would not have acted in the manner
she did in stabbing and hacking him. At least, if they have some
relationship, she would not show anger the way she did.[11]
Neither would the presence of at least three persons on the night
of 26 August 1995 in the house where victim was sleeping
necessarily disprove the sexual assault. It was already close to
midnight when the incident occurred, and the other occupants of
the house were by then apparently all sound asleep. The evidence
is to the effect that accused-appellant immediately after getting into
the house hit her on the jaw, put his hand on her mouth and
threatened to kill her if she dared refuse to yield to his demands.
Understandably, the victim was shocked, gripped by fear and then
cowed into submission. Intimidation should be viewed in the light
of the perception and judgment of the victim at the time of the
commission of the offense and not by any kind of hard and fast
rule. It would be unreasonable to expect the victim to act with
equanimity of disposition and to have the courage and intelligence
to disregard the threat made by accused-appellant.[12]
The claim that the unlocked door of the house was a sign that the
complainant wanted accused-appellant to have a chance to see
her during the late evening indeed should deserve scant
consideration. The so-called love angle was properly ruled out by
the trial court for lack of concrete evidence to establish any such
relationship.
Anent the failure of the complainant to escape when accused-
appellant ordered her to climb a fence, it should be enough to state
she did not appear to have had any real opportunity to flee from
the clutches of the intruder who was, in fact, just behind her. After
scaling the fence and while inside the abandoned and enclosed
house, she could not have done any much better since she was all
the time within striking distance of the bolo-wielding malefactor.
And now on the propriety of an appreciation of the aggravating
circumstances of nighttime and ignominy.
Nighttime is said to be that period of darkness beginning at the end
of dusk and ending at dawn.[13] The law defines nights as being
from sunset to sunrise.[14] By and of itself, nighttime would not be
an aggravating circumstance unless it is specially sought by the
offender, or it is specially taken advantage of by him, or it facilitates
the commission of the crime by insuring the offenders immunity
from capture.[15] As an ordinary aggravating circumstance,
nighttime can be so considered provided it is duly proved although
not alleged in the information.[16] The Court entertains no doubt
that appellant has specially taken advantage of the cover of
darkness to facilitate the commission of the crime without being
recognized. Accused-appellant has abducted his victim, brought
her to an abandoned and unlit house and then unleashed his
carnal desire on her, assured of the stillness of a sleeping world.
[17] The Court has long held that this aggravating circumstance
can be considered when an accused takes advantage of the
silence and darkness of the night to ensure impunity from his
illegal act.[18]
With respect to ignominy, the victim testified that after appellant
had inserted his penis into her vagina, appellant ordered her to lie
face down and while in that position had his penis into her anus.
Thereafter, he ordered her to lie down again and this time he
inserted his finger inside her. The Solicitor General correctly
invoked the case of People vs. Saylan,[19] where this Court said:
The trial court held that there was ignominy because the appellant
used not only the missionary position, i.e. male superior, female
inferior, but also the same position as dogs do i.e., entry from
behind. The appellant claims there was no ignominy because The
studies of many experts in the matter have shown that this position
is not novel and has repeatedly and often been resorted to by
couples in the act of copulation. (Brief, p. 24.) This may well be if
the sexual act is performed by consenting partners but not
otherwise.[20]
Article 14, paragraph 17, of the Revised Penal Code considers to
be an aggravating circumstance any means employed or
circumstance brought about which add ignominy to the natural
effects of the act. The circumstance, it is said,[21] "pertains to the
moral order [and] adds disagree and obloquy to the material injury
caused by the crime.
The crime of 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 or is demented.
The crime of rape shall be punished by reclusion perpetua.
Whenever the crime of rape is committed with the use of a deadly
weapon or by two or more persons, the penalty shall be reclusion
perpetua to death.[22]
In the case at bar, it remained uncontroverted that accused-
appellant was armed with a bolo to realize his criminal objective.
Nonetheless, the use of a deadly weapon could not be considered
as a qualifying circumstance in the crime of rape[23] for not having
been correspondingly alleged in the information as to make the
offense fall under the jurisprudentially referred qualified rape
punishable by reclusion perpetua to death. In People vs. Garcia,
[24] the Court declared:
One further observation. Article 335 originally provided only for
simple rape punishable by reclusion perpetua, but Republic Act
No. 4111 introduced amendments thereto by providing for qualified
forms of rape carrying the death penalty, that is, when committed
with the use of a deadly weapon or by two or more persons, when
by reason or on the occasion of the rape the victim becomes
insane, or, under the same circumstances, a homicide is
CRIM LAW FINALS I ACJUCO 67

committed. The homicide in the last two instances in effect created

a special complex crime of rape with homicide. The first two
attendant circumstances are considered as equivalent to qualifying
circumstances since they increase the penalties by degrees, and
not merely as aggravating circumstances which affect only the
period of the penalty but do not increase it to a higher degree. The
original provisions of Article 335 and the amendments of Republic
Act No. 4111 are still maintained.

xxx xxx xxx.

Now, it has long been the rule that qualifying circumstances must
be properly pleaded in the indictment. If the same are not pleaded
but proved, they shall be considered only as aggravating
circumstances, (People vs. Collado, 60 Phil. 610 [1934]; People
vs. Jovellano, et al., L-32421, March 27, 1974, 56 SCRA 156;
People vs. Fuertes, G.R. No. 104067, January 17, 1994, 229
SCRA 289; People vs. Rodico, et al., G.R. No. 107101, October
16, 1995, 249 SCRA 309.) since the latter admit of proof even if
not pleaded. (U.S. vs. Campo, 23 Phil. 368 [1912]; People vs.
Domondon, 60 Phil. 729 [1934]; People vs. De Guzman, G.R. No.
73464, August 1988, 164 SCRA 215.) Indeed, it would be a denial
of the right of the accused to be informed of the charges against
him and, consequently, a denial of due process, if he is charged
with simple rape and be convicted of its qualified form punishable
with death, although the attendant circumstance qualifying the
offense and resulting in capital punishment was not alleged in the
indictment on which he was arraigned.[25]

Simple rape is punishable by a single indivisible penalty of

reclusion perpetua. Thus, even if there were aggravating
circumstances of nighttime and ignominy in attendance the
appropriate penalty would still be reclusion perpetua under the law.
Article 63 of the Revised Penal Code provides that in all cases in
which the law prescribes a single indivisible penalty, it shall be
applied by the courts regardless of any mitigating or aggravating
circumstances that may have attended the commission of the
deed.

WHEREFORE, the decision of the trial court finding accused-

appellant Rolando Alfanta guilty beyond reasonable doubt of the
crime of rape is AFFIRMED WITH MODIFICATION by hereby
lowering the penalty therein imposed from death to reclusion
perpetua. An award of P50,000.00 for moral damages is likewise
ordered to be paid by accused-appellant Rolando Alfanta to the
victim Nita Hernandez in addition to the sum of P50,000.00 by way
of indemnity ex delictu granted by the trial court.

SO ORDERED.
CRIM LAW FINALS I ACJUCO 68
ALTERNATIVE CIRCUMSTANCES
2. INTOXICATION
G.R. No. L-36662-63 July 30, 1982
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
FILOMENO CAMANO, defendant-appellant.
The Solicitor General for plaintiff-appellee.
Deogracias Eufemio for defendant-appellant.
CONCEPCION JR., J.:
MANDATORY REVIEW of the death sentence imposed upon the
accused Filomeno Camano by the Court of First Instance of
Camarines Sur, in Criminal Case Nos. T-20 and T-21, for the killing
of Godofredo Pascual and Mariano Buenaflor.
The inculpatory facts as stated by the trial court show that:
On February 17, 1970, in the barrio of Nato, Municipality of
Sagñay, Province of Camarines Sur, between the hours of four and
five o'clock in the afternoon, after the accused had been drinking
liquor, he stabbed twice the victim Godofredo Pascua with a bolo,
called in the vernacular Bicol "palas" which is a sharp bladed and
pointed instrument about two feet long including the black handle,
tapering to the end, about one and one-half inches in width,
(Exhibit "C") while the latter was walking alone along the barrio
street almost infront of the store of one Socorro Buates. The
victim, Godofredo Pascua, sustained two mortal wounds for which
he died instantaneously, described by Dr. Constancio A. Tan,
Municipal Health Officer, of Sagñay Camarines Sur, in his Autopsy
Report (Exhibit "A", pp. 5, Record Crim. Case No. T-21) as follows:
NATURE OF WOUNDS UPON AUTOPSY:
1. WOUND STAB - three (3) inches long at left side, three
(3) inches below left axilla, a little bit posteriorly, cutting the skin,
subcutaneous tissues, muscles one (1) rib, pleura of left lung,
pericardium, penetrating the ventricles of the heart, Media stinum,
the right lung and exit to the right chest. One inch opening.
2. WOUND INCISED, one inch long at the left arm
CAUSE OF DEATH - Wound No. 1 causing instant death due to
severe hemorrhage.
After hacking and stabbing to death Godofredo Pascua, the
accused proceeded to the seashore of the barrio, and on finding
Mariano Buenaflor leaning at the gate of the fence of his house, in
a kneeling position, with both arms on top of the fence, and his
head stooping down hacked the latter with the same bolo, first on
the head, and after the victim fell and rolled to the ground, after
said blow, he continued hacking him, until he lay prostrate on the
ground, face up, when the accused gave him a final thrust of the
bolo at the left side of the chest above the nipple running and
penetrating to the right side a little posteriorly and superiorly with
an exit at the back, of one (1) inch opening, (Exhibit B) causing
instant death. The victim, Mariano Buenaflor sustained eight
wounds, which were specifically described by Dr. Tan in his
Autopsy Report (Exhibit "B" dated February 17, 1970, as follows:
NATURE OF WOUNDS UPON AUTOPSY:
1. WOUND STAB, Two (2) inches long at the left side of
chest above the nipple, running to the right side a little posteriorly
and superiorly with an exit at the back of one (1) inch opening.
Penetrating the skin, subcutaneous tissues, pericardium the
auricles of the heart, the left lung towards the right side of back.
2. WOUND STAB at sternum one and one-half (1-1/2)
inches deep three-fourth (3/4) inch long penetrating the skin and
the sternum.
3. WOUND STAB left side of neck three-fourth (3/4) inch
long one and one-half (1-1/2) inches deep.
4. WOUND HACKED, cutting left ear and bone four (4)
inches long.
5. WOUND HACKED, left leg three (3) inches long cutting
skin and bone of anterior side.
6. WOUND INCISED left palm two (2) inches long.
7. WOUND STAB, one (1) inch long two (2) inches deep at
the back near spinal column.
8. WOUND HACKED, two (2) inches long at dome of head
cutting skin and bone.
CAUSE OF DEATH — Wound number one (1) causing instant
death due to severe hemorrhage from the heart." Out of the eight
(8) wounds, two (2) are mortal wounds, namely wound Number
one (1) and wound Number Three (3), (Exhibit "B") (t.s.n., pp. 18-
20, Session November 22, 1971). The two victims Godofredo
Pascua and Mariano Buenaflor, together with the accused are
neighbors, residing at the same street of Barrio Nato, Sagñay,
Camarines Sur (t.s.n., pp. 31, Session Nov. 22, 1971). The bloody
incident was not preceded or precipitated by any altercation
between the victims and the accused (t.s.n. p. 60, Nov. 22, 1971).
Likewise, it is an undisputed fact that three years prior to this
incident, the two victims had a misunderstanding with the accused
while fishing along Sagnay River. During this occasion it appears
that the accused requested Godofredo Pascua to tow his fishing
boat with the motor boat owned by Mariano Buenaflor but the
request was refused by both. This refusal greatly offended and
embittered the accused against the victims. From this time on, the
accused begrudged the two, and entertained personal resentment
against them. And although on several occasions, the accused
was seen at the game table with Godofredo Pascual drinking
liquor, the friendly attitude towards Pascua, seems to be merely
artificial than real, more so, with respect to Mariano Buenaflor
whom he openly detested. He consistently refused to associate
since then with the two victim especially, Mariano Buenaflor. In
fact, no less than ten attempts were made by Amado Payago, a
neighbor, inviting the accused for reconciliation with the victims but
were refused. Instead, defendant when intoxicated or drunk, used
to challenge Mariano Buenaflor to a fight and announce his evil
intention to kill them. (t.s.n., pp. 50-53, session November 22,
1971.)
Also proved beyond dispute, the fact that the bolo or "palas"
belongs to the accused. That after killing the two victims, he
returned to his house, where he subsequently surrendered to
Policemen Adolfo Avila, Juan Chavez, Erasmo Valencia, upon
CRIM LAW FINALS I ACJUCO 69
demand by laid peace officers for him to surrender. When brought
to the Police headquarters of the town for investigation he revealed
that the bolo he used in the killing was hidden by him under the
table of his house. Following this tip, Patrolman Jose Baluyot was
dispatched, and recovered the weapon at the place indicated,
which when presented to he Chief of Police was still stained with
human blood from the base of the handle to the point of the blade.
And when asked as to who was he owner of said bolo, the
accused admitted it as his. He also admitted the killing of
Godofredo Pascua and Mariano Buenaflor. however, when he was
asked to sign a statement, he refused. 1
For the killing of Godofredo Pascua and Mariano Buenaflor,
Filomeno Camano was charged, under two (2) separate
informations, with the crime of murder attended by evident
premeditation and treachery. By agreement of the parties, the two
cases were tried jointly.
The accused admitted killing Mariano Buenaflor, but claims that he
did so in self-defense. He denied killing Godofredo Pascua. He
also denied holding a grudge against Godofredo Pascua and
Mariano Buenaflor and belittled the fist fight he had with Mariano
Buenaflor. He said that while they were drinking, they had a heated
discussion, and because they were drunk, it resulted in a fist fight,
which they had soon forgotten. 2
His version of the incident is that in the early morning of February
17, 1970, he was fishing in the open sea. He went ashore at about
7:00 o'clock in the morning and was met by Mariano Buenaflor
who, upon seeing that he had a big catch, demanded a
percentage. for the fishery commission. When he refused to give
what was asked, Buenaflor remarked that he was hard-headed. He
went home, taking his things along with him. After eating breakfast,
he went to sleep and awoke at about 3:30 o'clock in the afternoon.
3 He ate his dinner 4 and prepared to go out to sea again. While
he was standing in the yard of his house, Mariano Buenaflor,
Godofredo Pascua, Gorio Carable, Jesus Carable, Tomas Carable,
Abelardo Bolaye, Amado Payago, and Loreto Payago, who were
drinking at the store of Socorro Buates, went to him and
Godofredo Pascua, without any provocation whatsoever, boxed
him. He recounted what happened next: "I defend myself but
inspite of that I was hit on my upper arm. Then after that I was
again boxed by Mariano Buenaflor and I was hit on my lower jaw.
(Witness pointing to the bolo marked Exhibit C.) And I was able to
grab that bolo from him."
"When I met Godofredo Pascua he was on the act of boloing me
but I was able to take hold of his hands and I was able to grab the
bolo. After I have taken the bolo from Godofredo Pascua, all I
know is that he fell on the ground and the rest of the group except
Mariano Buenaflor run away after seeing that Godofredo Pascua
fell already on the ground. Mariano Buenaflor approached me
having also a bolo then immediately when we meet each other I
boloed him and when he has wounded he run away and when he
was running away I run after him. After I have boloed Mariano
Buenaflor he run away so I run after him because I know that he
has a gun and if he reach home he will get that gun and he might
shoot me." 5 Mariano Buenaflor was hit on the head.
The trial court, however, rejected the defense of the accused,
saying:
Coming to the evidence for the defense, the Court, much to its
regret cannot give credence to the testimony and story of the
accused, and his lone witness, Nemesio Camano, who is his first
cousin. The claim of self-defense does not find support in the
evidence presented. The claim, that a group of eight (8) men
headed by Godofredo Pascua and Mariano Buenaflor ganged up
on him by boxing him one after another while others were throwing
stones at him; that he was attacked by Godofredo Pascua with a
bolo which he succeeded in wresting from him; that he did not
know Godofredo Pascua was killed; that he killed said Mariano
Buenaflor after a bolo duel, are mere fictions of a desperate man
without evidentiary support. His testimony on these points, and
that of his cousin Nemesio Camano are simply incredible not only
because they are inherently improbable in themselves, but also
because of their clear inconsistencies on contradictions against
each other. For, conceding in gratia argumenti that he was really
ganged up by eight (8) persons, some boxing him while others
throwing stones at him, and two of whom were armed with a bolo,
and that he was all alone fighting them and yet he did not suffer
any physical injury, is indeed incredible and beyond belief. With
eight (8) persons to contend with, two armed with bolos, it is simply
unbelievable that he should come out of the melee unscathed.
The Court has carefully examined and verified very carefully each
and every piece of evidence presented by the defense and has
relaxed all technical rules of evidence in favor of the accused in
search for evidentiary support of his claim of self-defense in vain.
Conscious of the enormity of the offense and the bitterness
attached to an adverse decision, the Court has earnestly searched
in vain for facts upon which to lay the basis at least of a finding of
reasonable doubt in favor of the accused at least just to avoid the
ugly and unpleasant task of signing an adverse court decision. But,
the falsity of their concocted story is so apparent and self-evident
to need further elucidation. This is demonstrated by the record.
They simply cannot stand, as basis of belief. Moreover, the Court
feels very much intrigued by the fact that notwithstanding that
many people witnessed the incidents, having occurred in broad
daylight, and that the accused had more sufficient time to look for
witnesses among his friends, relatives, and neighbors in the barrio,
during the long period that this case has been pending trial since
February 17, 1970, that he could not get any witness to testify in
his favor, other than his lone witness, Nemesio Camano, whose
testimony, coming as it is from a very close relative is naturally
very vulnerable to grave doubt and suspicion for coming from a
biased source. Could this mean lack of public sympathy because
the horrible act was in truth committed by the accused? Is this a
sign of public condemnation? Be it as it may, this unpleasant
circumstance has no bearing or influence in the painful decision of
this case. What impelled and compelled this Court in making this
painful decision, much to his dislike, are the bare and
incontrovertible facts of the case born out by the evidence
presented indicating beyond per adventure of doubt the stark
reality which shows that there exist that moral certainty that
convinces and satisfies the reason and conscience of those who
are to act upon it. (People v. Lavarios, L-24339, June 29, 1968, 22
SCRA 1321) For the bitter conclusions herein reached, is based on
the compelling and irresistible facts born out by the evidence of
record found after sleepless night of study that the accused is
guilty beyond reasonable doubt of the crime charged committed
with the aggravating circumstances of evident premeditation,
treachery, abuse of superior strength, and intoxication with no
mitigating circumstance. The accused and his only witness,
Nemesio Camano changed their declarations not only once, twice,
or thrice, but many times, placing the Court in quandary and
confused what theory or testimony is to be believed and
considered among the mess of contradictory, inconsistent, and
diametrically opposed statements. Considering the manner and
tenor they were given, - the accused and his only witness
changing stand in every turn, leaves no room for doubt than that
said testimonies are merely concocted and fabricated as a
desperate attempt to salvage a hopeless case. 6
In this appeal, the fact of death of Godofredo Pascua and Mariano
Buenaflor and the cause of their deaths are not disputed. Counsel
de oficio merely claims that the accused is guilty of homicide only
in each case, and not murder, as charged; and prays for the
modification of the judgment and the consequent reduction of the
penalty imposed upon the accused Filomeno Camano.
CRIM LAW FINALS I ACJUCO 70
(1) Counsel contends that there is no evident premeditation
since the acts of the accused, as testified to by the prosecution
witnesses, are all indicative of E, "spur-of-the-moment" decision
and action.
The contention is well taken. There is evident premeditation when
the killing had been carefully Planned by the offender, when he
prepared beforehand the means which he deemed suitable for
carrying it into execution, and when he had sufficient time
dispassionately to consider and accept the consequences, and
when there has been a concerted plan. 7 It has also been held that
evident premeditation requires proof of the following: (1) the time
when the offender determined to commit the crime; (2) an act
manifestly indicating that the culprit had clung to his determination;
and (3) a sufficient lapse of time between the determination and
the execution of the crime to allow him to reflect upon the
consequences of his act and to allow his conscience to overcome
the resolution of his will. 8 In the instant case, it cannot be stated
that the killing of Pascua and Buenaflor was a preconceived plan.
There is no proof as to how and when the plan to kill Pascua and
Buenaflor was hatched or what time had elapsed before the plan
was carried out. The trial court merely concluded that the killing of
Pascua and Buenaflor was premeditated because "the accused
has been nursing the evil design to kill both the victims since three
years prior to the occurrence of the incident on February 18, 1970,
when both of them refused the request of the accused to have his
boat towed by the motor boat belonging to Mariano Buenaflor
while fishing along Sañgay River," and "from that time on, to the
fatal killings, said accused refused consistently to join his
neighbors in their drinking spree where both the victims especially
Mariano Buenaflor were present;" "in fact, no less than ten
attempts made by witness Amado Payago inviting the accused to
be reconciled with the victims were rejected;" and that "on the
contrary, it has been established that whenever the accused was
drunk, he announces his intention to kill the victims, and as a
matter of fact he challenged several times Mariano Buenaflor to a
fight."
The incident referred to, however, does not establish the tune
when the appellant decided to commit the crime. If ever, the
aforementioned incident merely established the motive for the
killing of the two victims. 9
The fact that the accused had challenged Mariano Buenaflor to a
fight whenever he was drunk and announces his intention to kill
the latter does not reveal a persistence of a criminal design since
there is no showing that in between the utterances of the threats
and the consummation of the crime, the appellant made plans or
sought the deceased to accomplish the killing.
As there is no direct evidence of the planning or preparation in the
killing of Pascua and Buenaflor and of the marked persistence to
accomplish that plan, the trial court's conclusion cannot be
sustained.
(2) Counsel for the accused also claims that treachery is not
present in the commission of the crime.
The contention is without merit. Amado Payago categorically
declared that Filomeno Camano attacked Godofredo Pascua from
behind, a method which has ensured the accomplishment of the
criminal act without any risk to the perpetrator arising from the
defense that his victim may put up. His testimony reads, as
follows:
Q At that time and date while you were in front of your house did
you notice whether there is anything unusual incident that
happened?
A Yes, sir.
Q Can you relate before this Honorable Court?
A Yes, sir.
Q Please relate it?
A I saw Filomeno Camano run towards his house and took a bolo
and run after Godofredo Pascua and immediately stabbed him.
Q How far more or less were you when Godofredo Pascua was
stabbed by Filomeno Camano?
A More or less 12 to 15 meters.
Q What was Godofredo Pascua doing when he was stabbed by
Filomeno Camano?
A He was walking to his house.
Q In relation to Godofredo Pascua where was Filomeno Camano
at the time that Filomeno Camano stabbed Godofredo Pascua?
A From behind sir.
Q After Godofredo Pascua was stabbed by Filomeno Camano
what happened to Godofredo Pascua?
A He fell down and keep on turning.
Q What about Filomeno Camano, what did he do after Godofredo
Pascua fell down?
A He run towards the seashore looking after Mariano Buenaflor. 10
His testimony is corroborated by the nature and location of the
wounds sustained by the deceased Godofredo Pascua. The
autopsy report, 11 showed that the point of entry of the stab wound
inflicted upon Pascua was three (3) inches long and three (3)
inches below the left armpit, a little bit posteriorly or toward the
hinder end of the body; and the point of exit was the right chest,
one (1) inch Iateral to the right nipple with a one (1) inch opening.
If the deceased was stabbed while he was facing his assailant, as
claimed by counsel for the accused, the entrance wound would
have been in the front part of the body, and its exit wound, if any,
would be at the back. The trial court, therefore, did not commit an
error in finding that the deceased Godofredo Pascua was
assaulted from behind.
With respect to Mariano Buenaflor, the evidence shows that he
was attacked while in a kneeling position, with his arms on top of
the gate of the fence surrounding his hut and his head was
"stooping down." 12 He was hacked on the head, causing him to
fall to the ground, and then successively hacked and stabbed
without respite, as he lay on the ground, until he died. The attack
was also sudden, unexpected, and lethal, such as to disable and
incapacitate the victim from putting up any defense.
(3) Counsel de oficio further claims that the aggravating
circumstance of abuse of superior strength, which the lower court
appreciated in fixing the penalty, is absorbed in treachery.
This contention is likewise correct. The rule is already settled that
abuse of superiority is absorbed in treachery. 13
(4) Counsel next contends that the alternative circumstance
of intoxication was erroneously appreciated as an aggravating
circumstance. Counsel argues thusly:
As to the alternative circumstance of intoxication, it is respectfully
submitted that there was no proof that the accused was intoxicated
at the time of the killing other than the bare testimony of Payago
CRIM LAW FINALS I ACJUCO 71
that from his house he allegedly saw the accused drinking in his
house which is about 30 meters away. The prosecution did not
present any police report or doctor's certification that accused was
found to be intoxicated at the time of the killing. Moreover, it was
not shown by competent evidence that accused purposedly
became drunk to facilitate the commission of the offense.
If at all, intoxication should be properly appreciated as a mitigating
circumstance because it affected accused's mental facilities such
that it diminished his capacity to know the injustice of his acts and
to comprehend fully the consequences of his acts. 14
There is merit in the contention. Drunkenness or intoxication is
mitigating if accidental, not habitual nor intentional, that is, not
subsequent to the plan to commit the crime. It is aggravating if
habitual or intentional. 15 To be mitigating, it must be indubitably
proved. 16 A habitual drunkard is one given to intoxication by
excessive use of intoxicating drinks. The habit should be actual
and confirmed. It is unnecessary that it be a matter of daily
occurrence. It lessens individual resistance to evil thought and
undermines will-power making its victim a potential evildoer. 17
The records of these cases do not show that the appellant was
given to excessive use of intoxicating drinks although he used to
get drunk every now and then. The testimony of Amado Payago to
this effect, reads as follows:
Q But after that incident Godofredo Pascua and Filomeno Camano
are already in good terms because they even go on drinking spree,
is it not?
A Yes, sir, that is true but Filomeno Camano has an evil plan
against Godofredo Pascua.
Q And how did you come to know about this plan?
A He talk(s) (about) that very openly specially when he is drunk.
Q During the three years that the incident where Camano's boat
was not towed, could you remember how many times more or less
did you hear him speak about his plan before the stabbing
incident?
A Whenever he is drunk.
Q Can you not remember more or less how many times have you
heard him?
A I cannot remember, sir.
Q About five times?
FISCAL CLEDERA:
Already answered.
A Whenever he is drunk.
ATTY. TRIA:
Q How often does he drunk (sic), if you know?
A I cannot estimate, sir.
Q What about Mariano Buenaflor, could you also state that there
had been an altercation between him and Filomeno Camano prior
to the incident, is it not?
A Yes, sir.
Q What was this altercation about?
A It started when the request of Filomeno Camano to tow his boat
was refused by Godofredo Pascua because that boat used by
Godofredo Pascua is owned by Mariano Buenaflor.
Q How did you also know that Camano resented against (sic) this
Buenaflor?
A Everytime he is drunk he keep(s) on challenging Mariano
Buenaflor.
xxx xxx xxx
Q Have you ever seen the accused Filomeno Camano drink liquor
immediately prior to the incident?
A Yes, sir.
Q Where?
A In his house.
Q When you saw him where were you?
A I was also in my house because I can just see his house from
our window.
Q About how far is your house from the house of Filomeno
Camano so that you can see from your house?
A More or less 30 meters.
Q With whom was Filomeno Camano drinking?
A Bienvenido Pascua, Leopoldo Balaye and this (sic) persons
(who) are arriving far from our house.
Q According to your personal knowledge do you know whether or
not the accused was drunk when this incident happened?
A Yes, sir.
Q But the truth is that, you still affirm that you don't know of any
incident immediately prior that has precipitated this stabbing
incident between the accused and the victim
A None, sir.
ATTY. TRIA:
Q How about you, did you now drink that time?
No, sir. 18
The intoxication of the appellant not being habitual, and
considering that the said appellant was in a state of intoxication at
the time of the commission of the felony, the alternative
circumstance of intoxication should be considered as a mitigating
circumstance.
5. Finally, counsel claims that death is a cruel and unusual
penalty and not proper in the cases at bar, citing Art. IV, Sec. 21 of
the Constitution which provides that: "Excessive fines shag not be
imposed, nor cruel or unusual punishment inflicted."
The contention is without merit. The death penalty is not cruel,
unjust or excessive. In the case of Harden vs. Director of Prisons,
19 the Court said:
The penalty complained of is neither cruel, unjust nor excessive. In
Ex-Parte Kemmler, 136 U.S. 436, the United States Supreme
CRIM LAW FINALS I ACJUCO 72
Court said that "punishments are cruel when they involve torture or
a lingering death, but the punishment of death is not cruel, within
the meaning of that word as used in the Constitution." It implies
there something inhuman and barbarous, something more than the
mere extinguishment of life."
The trial court, therefore, did not err in finding the accused
Filomeno Camano guilty of Murder in each of the two cases. The
offense being attended by the mitigating circumstance of
intoxication, without any aggravating circumstance to offset it, the
imposable penalty is the minimum of that provided by law or 17
years, 4 months and 1 day to 20 years of reclusion temporal.
Applying the Indeterminate Sentence Law, the appellant should be,
as he is hereby, sentenced to suffer an indeterminate penalty
ranging from 10 years and 1 day of prision mayor, as minimum, to
17 years, 4 months and 1 day of reclusion temporal, as maximum,
in each case.
WHEREFORE, with the modification of the penalty imposed upon
the appellant, as above indicated, the judgment appealed from
should be, as it is hereby, AFFIRMED in all other respects. With
costs against the said appellant.
SO ORDERED.
ABSOLUTORY CAUSES AND SIMILAR
SITUATIONS
1. INSTIGATION AND ENTRAPMENT
G.R. No. 34917 September 7, 1931
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
LUA CHU and UY SE TIENG, defendants-appellants.
Gibbs and McDonough, Gullas, Lopez and Tuaño, H. Alo and
Manuel G. Briones for appellants.
Attorney-General Jaranilla for appellee.
VILLA-REAL, J.:
The defendants Lua Chu and Uy Se Tieng appeal from the
judgment of the Court of First Instance of Cebu convicting them of
the illegal importation of opium, and sentencing them each to four
years' imprisonment, a fine of P10,000, with subsidiary
imprisonment in case of insolvency not to exceed one-third of the
principal penalty, and to pay the proportional costs.
In support of their appeal, the appellants assigned the following
alleged errors as committed by the court below in its judgment to
wit:
The lower court erred:
1. In refusing to compel the Hon. Secretary of Finance of
the Insular Collector of Customs to exhibit in court the record of the
administrative investigation against Joaquin Natividad, collector of
customs of Cebu, and Juan Samson, supervising customs secret
service agent of Cebu, both of whom have since been dismissed
from service.
2. In holding it as a fact that "no doubt many times opium
consignments have passed thru the customhouse without the
knowledge of the customs secret service."
3. In rejecting the defendants' theory that the said Juan
Samson in denouncing the accused was actuated by a desire to
protect himself and to injure ex-collector Joaquin Natividad, his
bitter enemy, who was partly instrumental in the dismissal of
Samson from the service.
4. In finding that the conduct of Juan Samson, dismissed
chief customs secret service agent of Cebu, is above reproach and
utterly irreconcilable with the corrupt motives attributed to him by
the accused.
5. In permitting Juan Samson, prosecution star witness, to
remain in the court room while other prosecution witnesses were
testifying, despite the previous order of the court excluding the
Government witnesses from the court room, and in refusing to
allow the defense to inquire from Insular Collector of Customs
Aldanese regarding the official conduct of Juan Samson as
supervising customs secret service agent of Cebu.
6. In giving full credit to the testimony of said Juan Samson.
7. In refusing to hold that Juan Samson induced the
defendant Uy Se Tieng to order the opium from Hongkong.
8. In accepting Exhibits E and E-1 as the true and correct
transcript of the conversation between Juan Samson and the
appellant Uy Se Tieng.
9. In accepting Exhibit F as the true and correct transcript of
the conversation between Juan Samson and the appellant Lua
Chu.
10. In finding each of the appellants Uy Se Tieng and Lua
Chu guilty of the crime of illegal importation of opium, and in
sentencing each to suffer four years' imprisonment and to pay a
fine of P10,000 and the costs, despite the presumption of
innocence which has not been overcome, despite the unlawful
inducement, despite the inherent weakness of the evidence
presented by the prosecution, emanating from a spirit of revenge
and from a contaminated, polluted source.
The following are uncontradicted facts proved beyond a
reasonable doubt at the trial:
About the middle of the month of November, 1929, the accused Uy
Se Tieng wrote to his correspondent in Hongkong to send him a
shipment of opium.
About November 4, 1929, after the chief of the customs secret
service of Cebu, Juan Samson, had returned from a vacation in
Europe, he called upon the then collector of customs for the Port of
Cebu, Joaquin Natividad, at his office, and the latter, after a short
conversation, asked him how much his trip had cost him. When the
chief of the secret service told him he had spent P2,500, the said
collector of customs took from a drawer in his table, the amount of
P300, in paper money, and handed it to him, saying: "This is for
you, and a shipment will arrive shortly, and you will soon be able to
recoup your travelling expenses." Juan Samson took the money,
left, and put it into the safe in his office to be kept until he delivered
it to the provincial treasurer of Cebu. A week later, Natividad called
Samson and told him that the shipment he had referred to
consisted of opium, that it was not about to arrive, and that the
owner would go to Samson's house to see him. That very night Uy
Se Tieng went to Samson's house and told him he had come by
order of Natividad to talk to him about the opium. The said
accused informed Samson that the opium shipment consisted of
3,000 tins, and that he had agreed to pay Natividad P6,000 or a P2
a tin, and that the opium had been in Hongkong since the
beginning of October awaiting a ship that would go direct to Cebu.
At about 6 o'clock in the afternoon of November 22, 1929, one
Nam Tai loaded on the steamship Kolambugan, which the Naviera
Filipina — a shipping company in Cebu had had built in Hongkong,
38 cases consigned to Uy Seheng and marked "U.L.H." About the
CRIM LAW FINALS I ACJUCO 73
same date Natividad informed Samson that the opium had already
been put on board the steamship Kolambugan, and it was agreed
between them that Samson would receive P2,000, Natividad
P2,000, and the remaining P2,000 would be distributed among
certain employees in the customhouse.
Meanwhile, Uy Se Tieng continued his interviews with Samson.
Towards the end of November, Natividad informed the latter that
the Kolambugan had returned to Hongkong on account of certain
engine trouble, and remained there until December 7th. In view of
this, the shipper several times attempted to unload the shipment,
but he was told each time by the captain, who needed the cargo
for ballast, that the ship was about to sail, and the 30 cases
remained on board.
The Kolambugan arrived at Cebu on the morning of December 14,
1929. While he was examining the manifests, Samson detailed
one of his men to watch the ship. After conferring with Natividad,
the latter instructed him to do everything possible to have the
cargo unloaded, and to require Uy Se Tieng to pay over the
P6,000. On the morning of November 16, 1929, Natividad told
Samson that Uy Se Tieng already had the papers ready to
withdraw the cases marked "U.L.H." from the customhouse.
Samson then told Natividad it would be better for Uy Se Tieng to
go to his house to have a talk with him. Uy Se Tieng went to
Samson's house that night and was told that he must pay over the
P6,000 before taking the opium out of the customhouse. Uy Se
Tieng showed Samson the bill of lading and on leaving said: "I will
tell the owner, and we see whether we can take the money to you
tomorrow." The following day Samson informed Colonel Francisco
of the Constabulary, of all that had taken place, and the said
colonel instructed the provincial commander, Captain
Buenconsejo, to discuss the capture of the opium owners with
Samson. Buenconsejo and Samson agreed to meet at the latter's
house that same night. That afternoon Samson went to the office
of the provincial fiscal, reported the case to the fiscal, and asked
for a stenographer to take down the conversation he would have
with Uy Se Tieng that night in the presence of Captain
Buenconsejo. As the fiscal did not have a good stenographer
available, Samson got one Jumapao, of the law firm of Rodriguez
& Zacarias, on the recommendation of the court stenographer. On
the evening of December 17, 1929, as agreed, Captain
Buenconsejo, Lieutenant Fernando; and the stenographer went to
Samson's house and concealed themselves behind a curtain made
of strips of wood which hung from the window overlooking the
entrance to the house on the ground floor. As soon as the accused
Uy Se Tieng arrived, Samson asked him if he had brought the
money. He replied that he had not, saying that the owner of the
opium, who was Lua Chu, was afraid of him. Samson then hold
him to tell Lua Chu not to be afraid, and that he might come to
Samson's house. After pointing out to Uy Se Tieng a back door
entrance into the garden, he asked him where the opium was, and
Uy Se Tieng answered that it was in the cases numbered 11 to 18,
and that there were 3,252 tins. Uy Se Tieng returned at about 10
o'clock that night accompanied by his codefendant Lua Chu, who
said he was not the sole owner of the opium, but that a man from
Manila, named Tan, and another in Amoy were also owners.
Samson then asked Lua Chu when he was going to get the opium,
and the latter answered that Uy Se Tieng would take charge of
that. On being asked if he had brought the P6,000, Lua Chu
answered, no, but promised to deliver it when the opium was in Uy
Se Tieng's warehouse. After this conversation, which was taken
down in shorthand, Samson took the accused Lua Chu aside and
asked him: "I say, old fellow, why didn't you tell me about this
before bringing the opium here?" Lua Chu answered: "Impossible,
sir; you were not here, you were in Spain on vacation." On being
asked by Samson how he had come to bring in the opium, Lua
Chu answered: "I was in a cockpit one Sunday when the collector
called me aside and said there was good business, because
opium brought a good price, and he needed money." All this
conversation was overheard by Captain Buenconsejo. It was then
agreed that Uy Se Tieng should take the papers with him at 10
o'clock next morning. At the appointed hour, Uy Se Tieng and one
Uy Ay arrived at Samson's house, and as Uy Se Tieng was
handing certain papers over to his companion, Uy Ay, Captain
Buenconsejo, who had been hiding, appeared and arrested the
two Chinamen, taking the aforementioned papers, which consisted
of bills of lading (Exhibits B and B-1), and in invoice written in
Chinese characters, and relating to the articles described in Exhibit
B. After having taken Uy Se Tieng and Uy Ay to the Constabulary
headquarters, and notified the fiscal, Captain Buenconsejo and
Samson went to Lua Chu's home to search it and arrest him. In the
pocket of a coat hanging on a wall, which Lua Chu said belonged
to him, they found five letters written in Chinese characters relating
to the opium (Exhibits G to K). Captain Buenconsejo and Samson
also took Lua Chu to the Constabulary headquarters, and then
went to the customhouse to examine the cases marked "U.L.H." In
the cases marked Nos. 11 to 18, they found 3,252 opium tins
hidden away in a quantity to dry fish. The value of the opium
confiscated amounted to P50,000.
In the afternoon of December 18, 1929, Captain Buenconsejo
approached Lua Chu and asked him to tell the truth as to who was
the owner of the opium. Lua Chu answered as follows: "Captain, it
is useless to ask me any questions, for I am not going to answer to
them. The only thing I will say is that whoever the owner of this
contraband may be, he is not such a fool as to bring it in here
without the knowledge of those — " pointing towards the
customhouse.
The defense attempted to show that after Juan Samson had
obtained a loan of P200 from Uy Se Tieng, he induced him to order
the opium from Hongkong saying that it only cost from P2 to P3 a
tin there, while in Cebu it cost from P18 to P20, and that he could
make a good deal of money by bringing in a shipment of that drug;
that Samson told Uy Se Tieng, furthermore, that there would be no
danger, because he and the collector of customs would protect
him; that Uy Se Tieng went to see Natividad, who told him he had
no objection, if Samson agreed; that Uy Se Tieng then wrote to his
correspondent in Hongkong to forward the opium; that after he had
ordered it, Samson went to Uy Se Tieng's store, in the name of
Natividad, and demanded the payment of P6,000; that Uy Se
Tieng then wrote to his Hongkong correspondent cancelling the
order, but the latter answered that the opium had already been
loaded and the captain of the Kolambugan refused to let him
unload it; that when the opium arrived, Samson insisted upon the
payment of the P6,000; that as Uy Se Tieng did not have that
amount, he went to Lua Chu on the night of December 14th, and
proposed that he participate; that at first Lua Chu was unwilling to
accept Uy Se Tieng's proposition, but he finally agreed to pay
P6,000 when the opium had passed the customhouse; that Lua
Chu went to Samson's house on the night of December 17th,
because Samson at last agreed to deliver the opium without first
receiving the P6,000, provided Lua Chu personally promised to
pay him that amount.
The appellants make ten assignments of error as committed by the
trial court in its judgment. Some refer to the refusal of the trial
judge to permit the presentation of certain documentary evidence,
and to the exclusion of Juan Samson, the principal witness for the
Government, from the court room during the hearing; others refer
to the admission of the alleged statements of the accused taken in
shorthand; and the others to the sufficiency of the evidence of the
prosecution to establish the guilt of the defendants beyond a
reasonable doubt.
With respect to the presentation of the record of the administrative
proceedings against Joaquin Natividad, collector of customs of
Cebu, and Juan Samson, supervising customs secret service
agent of Cebu, who were dismissed from the service, the trial court
did not err in not permitting it, for, whatever the result of those
proceedings, they cannot serve to impeach the witness Juan
CRIM LAW FINALS I ACJUCO 74

Samson, for it is not one of the means prescribed in section 342 of
the Code of Civil Procedure to that end.
With regard to the trial judge's refusal to order the exclusion of
Juan Samson, the principal witness of the Government, from the
court room during the hearing, it is within the power of said judge
to do so or not, and it does not appear that he has abused his
discretion (16 Corpus Juris, 842).
Neither did the trial judge err when he admitted in evidence the
transcript of stenographic notes of the defendants' statements,
since they contain admissions made by themselves, and the
person who took them in shorthand attested at the trial that they
were faithfully taken down. Besides the contents are corroborated
by unimpeached witnesses who heard the statements.
As to whether the probatory facts are sufficient to establish the
facts alleged in the information, we find that the testimony given by
the witnesses for the prosecution should be believed, because the
officers of the Constabulary and the chief of the customs secret
service, who gave it, only did their duty. Aside from this, the
defendants do not deny their participation in the illegal importation
of the opium, though the accused Lua Chu pretends that he was
only a guarantor to secure the payment of the gratuity which the
former collector of customs, Joaquin Natividad, had asked of him
for Juan Samson and certain customs employees. This assertion,
however, is contradicted by his own statement made to Juan
Samson and overheard by Captain Buenconsejo, that he was one
of the owners of the opium that had been unlawfully imported.
But the defendants' principal defense is that they were induced by
Juan Samson to import the opium in question. Juan Samson
denies this, and his conduct in connection with the introduction of
the prohibited drug into the port of Cebu, bears him out. A public
official who induces a person to commit a crime for purposes of
gain, does not take the steps necessary to seize the instruments of
the crime and to arrest the offender, before having obtained the
profit he had in mind. It is true that Juan Samson smoothed the
way for the introduction of the prohibited drug, but that was after
the accused had already planned its importation and ordered said
drug, leaving only its introduction into the country through the
Cebu customhouse to be managed, and he did not do so to help
them carry their plan to a successful issue, but rather to assure the
seizure of the imported drug and the arrest of the smugglers.
authorized by them to do so, assists the thief in carrying out the
plan, the larceny is nevertheless committed. It is generally held
that it is no defense to a prosecution for an illegal sale of liquor that
the purchase was made by a "spotter," detective, or hired informer;
but there are cases holding the contrary.
As we have seen, Juan Samson neither induced nor instigated the
herein defendants-appellants to import the opium in question, as
the latter contend, but pretended to have an understanding with
the collector of customs, Joaquin Natividad — who had promised
them that he would remove all the difficulties in the way of their
enterprise so far as the customhouse was concerned — not to
gain the P2,000 intended for him out of the transaction, but in
order the better to assure the seizure of the prohibited drug and
the arrest of the surreptitious importers. There is certainly nothing
immoral in this or against the public good which should prevent the
Government from prosecuting and punishing the culprits, for this is
not a case where an innocent person is induced to commit a crime
merely to prosecute him, but it simply a trap set to catch a criminal.
Wherefore, we are of opinion and so hold, that the mere fact that
the chief of the customs secret service pretended to agree a plan
for smuggling illegally imported opium through the customhouse, in
order the better to assure the seizure of said opium and the arrest
of its importers, is no bar to the prosecution and conviction of the
latter.
By virtue whereof, finding no error in the judgment appealed from,
the same is hereby affirmed, with costs against the appellants. So
ordered.

The doctrines referring to the entrapment of offenders and

instigation to commit crime, as laid down by the courts of the
United States, are summarized in 16 Corpus Juris, page 88,
section 57, as follows:

ENTRAPMENT AND INSTIGATION. — While it has been said that

the practice of entrapping persons into crime for the purpose of
instituting criminal prosecutions is to be deplored, and while
instigation, as distinguished from mere entrapment, has often been
condemned and has sometimes been held to prevent the act from
being criminal or punishable, the general rule is that it is no
defense to the perpetrator of a crime that facilitates for its
commission were purposely placed in his way, or that the criminal
act was done at the "decoy solicitation" of persons seeking to
expose the criminal, or that detectives feigning complicity in the act
were present and apparently assisting in its commission.
Especially is this true in that class of cases where the offense is
one of a kind habitually committed, and the solicitation merely
furnishes evidence of a course of conduct. Mere deception by the
detective will not shield defendant, if the offense was committed by
him free from the influence or the instigation of the detective. The
fact that an agent of an owner acts as supposed confederate of a
thief is no defense to the latter in a prosecution for larceny,
provided the original design was formed independently of such
agent; and where a person approached by the thief as his
confederate notifies the owner or the public authorities, and, being
CRIM LAW FINALS I ACJUCO 75
G.R. No. L-5728 August 11, 1910
THE UNITED STATES, plaintiff-appellee,
vs.
JAMES O. PHELPS (alias PHILIPS), defendant-appellant.
P. J. Moore and W. H. Bishop, for appellant.
Attorney-General Villamor, for appellee.
TRENT, J.:
The defendant, James O. Phelps, was charged in the Court of First
Instance of Jolo, Moro Province, with having violated the
provisions of Act No. 1761. He was tried, found guilty as charged,
and sentenced to one month's imprisonment and to pay a fine of
P250, Philippine currency, and in case of insolvency to suffer the
corresponding subsidiary imprisonment at the rate of P2.50 a day,
and to pay the costs. He appealed.
The prosecution presented but one witness in this case, Homer G.
Smith, an employee of the Bureau of Internal Revenue. This
witness testified that the first time he ever saw the accused was in
the international Saloon in Jolo in the month of April, 1909; that at
the time, while two or three men were sitting together in the said
salon, he heard the accused say that he on some occasions like to
smoke opium; that a few hours after leaving the saloon he asked
the accused if he smoked opium, and the accused answered
"yes," that he smoked sometimes; that he knew then that it was his
duty to watch the accused, that he then asked the accused what
opportunities he had for smoking opium, and the accused replied,
"good opportunities;" he then said to the accused, "I wish to smoke
opium." On the invitation of the accused he looked him up that
night and was told that he (the accused) was not able to prepare a
room for smoking, as the Chinamen were afraid, and asked the
witness to see him the following night; that he saw him the
following night, and accused again said that he could not find a
suitable place; that they made another agreement to meet and at
that time they went together to a certain house in the barrio of
Tulay, where a certain Chinaman (this Chinaman was charged in
criminal case No. 292 in said court) had prepared the opium and
pipe for smoking; that the accused gave the Chinaman P2, and he
(the witness) gave him P1 in payment for the preparation of the
pipe which was prepared for smoking he took the pipe and the pan
containing the opium and went directly to the justice of the peace
and swore out a warrant for the arrest of the accused and the said
Chinaman.
The defendant, J. O. Phelps, a man 30 years of age, testified that
Smith, who was then going under the name of Lockwood, came to
his house one night in Jolo and said that he was accustomed to
smoking opium and asked him (the accused) if he knew of any
Chinaman in the town who could assist him in obtaining opium to
smoke; that he answered Smith that he did not; that Smith then
asked him if the Chinaman (the one charged in criminal case No.
292), who was the accused's servant, could look for someone to
furnish him (Smith) with a pipe until he became acquainted in
town; that on the following night the witness Smith came again to
his house, and after being there about twenty minutes became
very nervous, saying that it was necessary for him to have some
opium; that he told him (Smith) to go to the hospital, and received
the reply that he (Smith) was working for the quartermaster and
was looking for a position as clerk, and that they probably would
not give him this position if they learned that he was an opium
smoker that he again asked to have the Chinaman assist him, and
he (the accused) believing that he (Smith) was acting in good faith
and was really sick, told the Chinaman to do so; that by agreement
and the witness Smith went to the house of the Chinaman in Tulay,
where the Chinaman prepared the pipe and gave it to Smith, he
(Smith) giving the Chinaman P2, and that he (Smith) then left,
without the accused noticing whether he smoked or not, and that
he (the accused) was arrested about forty minutes later, and that
he called for the doctor to examine him about one and half hours
after he left the Chinaman's house.
The Chinaman corroborated the testimony of the accused on every
material point, stating that he, after repeated demands made by
Smith, did prepare some opium in a pipe and give it to Smith.
The chief of police of Jolo, a sergeant in the United States Cavalry,
who arrested the accused and the Chinaman, testified that when
he made these arrests the Chinaman and the accused did not
have an opportunity to talk together before they went to the justice
of the peace where the preliminary investigation was held.
Doctor De Kraft, of the United States Army, was called by the
accused himself and made an examination of the accused about
an hour and a half or two hours after he left the Chinaman's house.
The doctor testified that the accused was strong, robust man, and
a man presenting no appearance of an opium smoker. On being
asked by the court whether or not he could state positively if the
accused had used any opium on that day, the witness answered, "I
as sure that he did not use any opium on that day."
The court below in its decision said:
I agree with him (the doctor) that the accused does not appear to
be a person who uses daily a large amount of opium. The accused
is a strong, robust man, in good physical condition, and from a
casual examination of his person no one would accuse him of
being a habitual user of opium.
The prosecution does not contend that the appellant sold or had in
his possession any opium, neither does it contend that he had in
his possession any of the prohibited paraphernalia used in
smoking this drug. He is only charged with having smoked opium
this one time in the house of the Chinaman, and the prosecution
rests its case solely upon the testimony of the witness Smith, who
was an employee of the Bureau of Internal Revenue, secretly
acting in that capacity in Jolo.
On arriving in Jolo, Smith obtained employment in order to hide his
true mission. He assumed the name of Lockwood for the same
purpose, engaged in gambling, and admits having visited the
house of the appellant three times for the purpose of making
arrangements for himself and the accused to smoke opium. He
CRIM LAW FINALS I ACJUCO 76
urged the accused to have the Chinaman make arrangements so
they both could smoke. He went to the house of the Chinaman
with the accused and paid the said Chinaman, according to his
own statement, P1 for the preparation of the opium. If he had, by
these means, induced the appellant to sell opium or to exhibit in
his possession either opium or any of the prohibited paraphernalia,
his testimony would be more reasonable, since the mere
possession of the drug or any of the prohibited paraphernalia is a
violation of the law within itself.
But, as we have said, it is not contended that the accused had in
his possession any of these things. According to the statements
made by the witness Smith, he not only suggested the commission
of this crime, but he (Smith) also states that he desired to commit
the same offense and would pay his part of the expense necessary
for the commission of the prohibited act. Such conduct on the part
of a man who is employed by the Government for the purpose of
taking such steps as are necessary to prevent the commission of
the offense and which would tend to the elevation and
improvement of the defendant, as a would-be criminal, rather than
further his debasement, should be rebuked rather than
encouraged by the courts; and when such acts as those committed
by the witness Smith are placed beside the positive testimony of
the defendant, corroborated by the Chinaman and the doctor, the
testimony of such witness sinks into insignificance and certainly
does not deserve credit. When an employee of the Government,
as in this case, and according to his own testimony, encourages or
induces persons to commit a crime in order to prosecute them,
such conduct is most reprehensible. We desire to be understood
that we base our conclusions as to the conduct of the witness
Smith and the incredibility of his testimony on his own acts
according to his own testimony.
We are, therefore, of the opinion and so hold, that the appellant is
not guilty of this crime. The judgment of the lower court is reversed
and the appellant acquitted, with costs de oficio.
[G.R. No. 125299. January 22, 1999]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.
FLORENCIO DORIA y BOLADO, and VIOLETA GADDAO y
CATAMA @ "NENETH," accused-appellants.
DECISION
PUNO, J.:
On December 7, 1995, accused-appellants Florencio Doria y
Bolado and Violeta Gaddao y Catama @ "Neneth" were charged
with violation of Section 4, in relation to Section 21 of the
Dangerous Drugs Act of 1972.[1] The information reads:
"That on or about the 5th day of December, 1995 in the City of
Mandaluyong, Philippines, a place within the jurisdiction of this
Honorable Court, the above-named accused, conspiring,
confederating and mutually helping and aiding one another and
without having been authorized by law, did, then and there willfully,
unlawfully and feloniously sell, administer, deliver and give away to
another eleven (11) plastic bags of suspected marijuana fruiting
tops weighing 7,641.08 grams in violation of the above-cited law.
CONTRARY TO LAW."[2]
The prosecution contends the offense was committed as follows:
In November 1995, members of the North Metropolitan District,
Philippine National Police (PNP) Narcotics Command (Narcom),
received information from two (2) civilian informants (CI) that one
"Jun" was engaged in illegal drug activities in Mandaluyong City.
The Narcom agents decided to entrap and arrest "Jun" in a buy-
bust operation. As arranged by one of the CI's, a meeting between
the Narcom agents and "Jun" was scheduled on December 5,
1995 at E. Jacinto Street in Mandaluyong City.
On December 5, 1995, at 6:00 in the morning, the CI went to the
PNP Headquarters at EDSA, Kamuning, Quezon City to prepare
for the buy-bust operation. The Narcom agents formed Team Alpha
composed of P/Insp. Nolasco Cortes as team leader and PO3
Celso Manlangit, SPO1 Edmund Badua and four (4) other
policemen as members. P/Insp. Cortes designated PO3 Manlangit
as the poseur-buyer and SPO1 Badua as his back-up, and the rest
of the team as perimeter security. Superintendent Pedro Alcantara,
Chief of the North Metropolitan District PNP Narcom, gave the
team P2,000.00 to cover operational expenses. From this sum,
PO3 Manlangit set aside P1,600.00-- a one thousand peso bill and
six (6) one hundred peso bills[3]-- as money for the buy-bust
operation. The market price of one kilo of marijuana was then
P1,600.00. PO3 Manlangit marked the bills with his initials and
listed their serial numbers in the police blotter.[4] The team rode in
two cars and headed for the target area.
At 7:20 of the same morning, "Jun" appeared and the CI
introduced PO3 Manlangit as interested in buying one (1) kilo of
marijuana. PO3 Manlangit handed "Jun" the marked bills worth
P1,600.00. "Jun" instructed PO3 Manlangit to wait for him at the
corner of Shaw Boulevard and Jacinto Street while he got the
marijuana from his associate.[5] An hour later, "Jun" appeared at
the agreed place where PO3 Manlangit, the CI and the rest of the
team were waiting. "Jun" took out from his bag an object wrapped
in plastic and gave it to PO3 Manlangit. PO3 Manlangit forthwith
arrested "Jun" as SPO1 Badua rushed to help in the arrest. They
frisked "Jun" but did not find the marked bills on him. Upon inquiry,
"Jun" revealed that he left the money at the house of his associate
named "Neneth."[6] "Jun" led the police team to "Neneth's" house
nearby at Daang Bakal.
The team found the door of "Neneth's" house open and a woman
inside. "Jun" identified the woman as his associate.[7] SPO1
Badua asked "Neneth" about the P1,600.00 as PO3 Manlangit
looked over "Neneth's" house. Standing by the door, PO3
Manlangit noticed a carton box under the dining table. He saw that
one of the box's flaps was open and inside the box was something
wrapped in plastic. The plastic wrapper and its contents appeared
similar to the marijuana earlier "sold" to him by "Jun." His suspicion
aroused, PO3 Manlangit entered "Neneth's" house and took hold
of the box. He peeked inside the box and found that it contained
ten (10) bricks of what appeared to be dried marijuana leaves.
Simultaneous with the box's discovery, SPO1 Badua recovered the
marked bills from "Neneth."[8] The policemen arrested "Neneth."
They took "Neneth" and "Jun," together with the box, its contents
and the marked bills and turned them over to the investigator at
headquarters. It was only then that the police learned that "Jun" is
Florencio Doria y Bolado while "Neneth" is Violeta Gaddao y
Catama. The one (1) brick of dried marijuana leaves recovered
from "Jun" plus the ten (10) bricks recovered from "Neneth's"
house were examined at the PNP Crime Laboratory.[9] The bricks,
eleven (11) in all, were found to be dried marijuana fruiting tops of
various weights totalling 7,641.08 grams.[10]
The prosecution story was denied by accused-appellants Florencio
Doria and Violeta Gaddao. Florencio Doria, a 33-year old
carpenter, testified that on December 5, 1995, at 7:00 in the
morning, he was at the gate of his house reading a tabloid
newspaper. Two men appeared and asked him if he knew a certain
"Totoy." There were many "Totoys" in their area and as the men
questioning him were strangers, accused-appellant denied
knowing any "Totoy." The men took accused-appellant inside his
house and accused him of being a pusher in their community.
When accused-appellant denied the charge, the men led him to
their car outside and ordered him to point out the house of "Totoy."
For five (5) minutes, accused-appellant stayed in the car.
Thereafter, he gave in and took them to "Totoy's" house.
CRIM LAW FINALS I ACJUCO 77
Doria knocked on the door of "Totoy's" house but no one
answered. One of the men, later identified as PO3 Manlangit,
pushed open the door and he and his companions entered and
looked around the house for about three minutes. Accused-
appellant Doria was left standing at the door. The policemen came
out of the house and they saw Violeta Gaddao carrying water from
the well. He asked Violeta where "Totoy" was but she replied he
was not there. Curious onlookers and kibitzers were, by that time,
surrounding them. When Violeta entered her house, three men
were already inside. Accused-appellant Doria, then still at the door,
overheard one of the men say that they found a carton box.
Turning towards them, Doria saw a box on top of the table. The
box was open and had something inside. PO3 Manlangit ordered
him and Violeta to go outside the house and board the car. They
were brought to police headquarters where they were investigated.
Accused-appellant Doria further declared that his co-accused,
Violeta Gaddao, is the wife of his acquaintance, Totoy Gaddao. He
said that he and Totoy Gaddao sometimes drank together at the
neighborhood store. This closeness, however, did not extend to
Violeta, Totoy's wife.[11]
Accused-appellant Violeta Gaddao, a 35-year old rice vendor,
claimed that on December 5, 1995, she was at her house at
Daang Bakal, Mandaluyong City where she lived with her husband
and five (5) children, namely, Arvy, aged 10, Arjay, aged 8, the
twins Raymond and Raynan, aged 5, and Jason, aged 3. That day,
accused-appellant woke up at 5:30 in the morning and bought pan
de sal for her children's breakfast. Her husband, Totoy, a
housepainter, had left for Pangasinan five days earlier. She woke
her children and bathed them. Her eldest son, Arvy, left for school
at 6:45 A.M. Ten minutes later, she carried her youngest son,
Jayson, and accompanied Arjay to school. She left the twins at
home leaving the door open. After seeing Arjay off, she and
Jayson remained standing in front of the school soaking in the sun
for about thirty minutes. Then they headed for home. Along the
way, they passed the artesian well to fetch water. She was
pumping water when a man clad in short pants and denim jacket
suddenly appeared and grabbed her left wrist. The man pulled her
and took her to her house. She found out later that the man was
PO3 Manlangit.
Inside her house were her co-accused Doria and three (3) other
persons. They asked her about a box on top of the table. This was
the first time she saw the box. The box was closed and tied with a
piece of green straw. The men opened the box and showed her its
contents. She said she did not know anything about the box and its
contents.
Accused-appellant Violeta Gaddao confirmed that her co-accused
Florencio Doria was a friend of her husband, and that her husband
never returned to their house after he left for Pangasinan. She
denied the charge against her and Doria and the allegation that
marked bills were found in her person.[12]
After trial, the Regional Trial Court, Branch 156, Pasig City
convicted the accused-appellants. The trial court found the
existence of an "organized/syndicated crime group" and sentenced
both accused-appellants to death and pay a fine of P500,000.00
each. The dispositive portion of the decision reads as follows:
"WHEREFORE, the guilt of accused, FLORENCIO DORIA y
BOLADO @ "Jun" and VIOLETA GADDAO y CATAMA @ "Neneth"
having been established beyond reasonable doubt, they are both
CONVICTED of the present charge against them.
According to the amendatory provisions of Sec. 13 of Republic Act
No. 7659 which cover violations of Sec. 4 of Republic Act No. 6425
and which was exhaustively discussed in People v. Simon, 234
SCRA 555, the penalty imposable in this case is reclusion
perpetua to death and a fine ranging from five hundred thousand
pesos to ten million pesos. Taking into consideration, however, the
provisions of Sec. 23, also of Republic Act No. 7659 which
explicitly state that:
'The maximum penalty shall be imposed if the offense was
committed by any person who belongs to an organized/syndicated
crime group.
An organized/syndicated crime group means a group of two or
more persons collaborating, confederating or mutually helping one
another for purposes of gain in the commission of any crime.'
the Court is hereby constrained to sentence (hereby sentences)
said FLORENCIO DORIA y BOLADO @ "Jun" and VIOLETA
GADDAO y CATAMA @ "Neneth" to DEATH and to pay a fine of
Five Hundred Thousand Pesos (P500,000.00) each without
subsidiary imprisonment in case of insolvency and to pay the
costs.
The confiscated marijuana bricks (7,641.08 grams) shall be turned
over to the Dangerous Drugs Board, NBI for destruction in
accordance with law.
Let a Commitment Order be issued for the transfer of accused
DORIA from the Mandaluyong City Jail to the New Bilibid Prisons,
Muntinlupa City and also for accused GADDAO for her transfer to
the Correctional Institute for Women, Mandaluyong City.
Let the entire records of this case be forwarded immediately to the
Supreme Court for mandatory review.
SO ORDERED."[13]
Before this Court, accused-appellant Doria assigns two errors,
thus:
"I
THE COURT A QUO GRAVELY ERRED IN GIVING WEIGHT TO
THE TESTIMONY OF THE WITNESSES FOR THE
PROSECUTION WHEN THEIR TESTIMONIES WERE SHOT
WITH DISCREPANCIES, INCONSISTENCIES AND THAT THE
CORPUS DELICTI OF THE MARIJUANA ALLEGEDLY TAKEN
FROM APPELLANT WAS NOT POSITIVELY IDENTIFIED BY THE
POSEUR-BUYER.
II
THE COURT A QUO GRAVELY ERRED IN ADMITTING AS
EVIDENCE THE MARIJUANA FRUITINGS FOUND INSIDE THE
CARTON BOX AS THESE WERE OBTAINED THROUGH A
WARRANTLESS SEARCH AND DOES NOT COME WITHIN THE
PLAIN VIEW DOCTRINE."[14]
Accused-appellant Violeta Gaddao contends:
"I
THE LOWER COURT ERRED IN FINDING APPELLANT GUILTY
DESPITE THE INCREDIBILITY OF THE POLICE VERSION OF
THE MANNER THE ALLEGED BUY-BUST AS CONDUCTED.
II
THE PNP OFFICERS' VERSIONS AS TO WHERE THE BUY-
BUST MONEY CAME FROM ARE INCONSISTENT WITH ONE
ANOTHER AND ALSO REEKS WITH INCREDIBILITY.
III
CRIM LAW FINALS I ACJUCO 78
THE LOWER COURT ERRED IN FINDING APPELLANT GUILTY
AND SENTENCING HER TO DEATH DESPITE THE
MANIFESTLY IRRECONCILABLE INCONSISTENCIES IN THE
VERSIONS OF THE POLICE AS TO HOW AND BY WHOM THE
ALLEGED BUY-BUST MONEY WAS RECOVERED FROM HER,
WHICH IN CONSEQUENCE RESULTS IN THE EVIDENCE, OF
RETRIEVAL FROM HER OF THE SAME, NEBULOUS, AT BEST,
NIL, AT WORST.
IV
THE LOWER COURT ERRED IN UPHOLDING THE VALIDITY OF
THE WARRANTLESS SEARCH LEADING TO THE SEIZURE OF
THE MARIJUANA ALLEGEDLY FOUND INSIDE THE HOUSE OF
ACCUSED-APPELLANT."[15]
The assigned errors involve two principal issues: (1) the validity of
the buy-bust operation in the apprehension of accused-appellant
Doria; and (2) the validity of the warrantless arrest of accused-
appellant Gaddao, the search of her person and house, and the
admissibility of the pieces of evidence obtained therefrom.
Accused-appellants were caught by the police in a buy-bust
operation. A buy-bust operation is a form of entrapment employed
by peace officers as an effective way of apprehending a criminal in
the act of the commission of an offense.[16] Entrapment has
received judicial sanction when undertaken with due regard to
constitutional and legal safeguards.[17]
Entrapment was unknown in common law. It is a judicially created
twentieth-century American doctrine that evolved from the
increasing use of informers and undercover agents in the detection
of crimes, particularly liquor and narcotics offenses.[18]
Entrapment sprouted from the doctrine of estoppel and the public
interest in the formulation and application of decent standards in
the enforcement of criminal law.[19] It also took off from a
spontaneous moral revulsion against using the powers of
government to beguile innocent but ductile persons into lapses that
they might otherwise resist.[20]
In the American jurisdiction, the term "entrapment" has a generally
negative meaning because it is understood as the inducement of
one to commit a crime not contemplated by him, for the mere
purpose of instituting a criminal prosecution against him.[21] The
classic definition of entrapment is that articulated by Justice
Roberts in Sorrells v. United States,[22] the first Supreme Court
decision to acknowledge the concept: "Entrapment is the
conception and planning of an offense by an officer, and his
procurement of its commission by one who would not have
perpetrated it except for the trickery, persuasion or fraud of the
officer."[23] It consists of two (2) elements: (a) acts of persuasion,
trickery, or fraud carried out by law enforcement officers or the
agents to induce a defendant to commit a crime; and (b) the origin
of the criminal design in the minds of the government officials
rather than that of the innocent defendant, such that the crime is
the product of the creative activity of the law enforcement officer.
[24]
It is recognized that in every arrest, there is a certain amount of
entrapment used to outwit the persons violating or about to violate
the law. Not every deception is forbidden. The type of entrapment
the law forbids is the inducing of another to violate the law, the
"seduction" of an otherwise innocent person into a criminal career.
[25] Where the criminal intent originates in the mind of the
entrapping person and the accused is lured into the commission of
the offense charged in order to prosecute him, there is entrapment
and no conviction may be had.[26] Where, however, the criminal
intent originates in the mind of the accused and the criminal
offense is completed, the fact that a person acting as a decoy for
the state, or public officials furnished the accused an opportunity
for commission of the offense, or that the accused is aided in the
commission of the crime in order to secure the evidence necessary
to prosecute him, there is no entrapment and the accused must be
convicted.[27] The law tolerates the use of decoys and other
artifices to catch a criminal.
Entrapment is recognized as a valid defense[28] that can be raised
by an accused and partakes of the nature of a confession and
avoidance.[29] It is a positive defense. Initially, an accused has the
burden of providing sufficient evidence that the government
induced him to commit the offense. Once established, the burden
shifts to the government to show otherwise.[30] When entrapment
is raised as a defense, American federal courts and a majority of
state courts use the "subjective" or "origin of intent" test laid down
in Sorrells v. United States[31] to determine whether entrapment
actually occurred. The focus of the inquiry is on the accused's
predisposition to commit the offense charged, his state of mind
and inclination before his initial exposure to government agents.
[32] All relevant facts such as the accused's mental and character
traits, his past offenses, activities, his eagerness in committing the
crime, his reputation, etc., are considered to assess his state of
mind before the crime.[33] The predisposition test emphasizes the
accused's propensity to commit the offense rather than the officer's
misconduct[34] and reflects an attempt to draw a line between a
"trap for the unwary innocent and the trap for the unwary
criminal."[35] If the accused was found to have been ready and
willing to commit the offense at any favorable opportunity, the
entrapment defense will fail even if a police agent used an unduly
persuasive inducement.[36] Some states, however, have adopted
the "objective" test.[37] This test was first authoritatively laid down
in the case of Grossman v. State[38] rendered by the Supreme
Court of Alaska. Several other states have subsequently adopted
the test by judicial pronouncement or legislation. Here, the court
considers the nature of the police activity involved and the
propriety of police conduct.[39] The inquiry is focused on the
inducements used by government agents, on police conduct, not
on the accused and his predisposition to commit the crime. For the
goal of the defense is to deter unlawful police conduct.[40] The test
of entrapment is whether the conduct of the law enforcement agent
was likely to induce a normally law-abiding person, other than one
who is ready and willing, to commit the offense;[41] for purposes of
this test, it is presumed that a law-abiding person would normally
resist the temptation to commit a crime that is presented by the
simple opportunity to act unlawfully.[42] Official conduct that
merely offers such an opportunity is permissible, but overbearing
conduct, such as badgering, cajoling or importuning,[43] or
appeals to sentiments such as pity, sympathy, friendship or pleas
of desperate illness, are not.[44] Proponents of this test believe
that courts must refuse to convict an entrapped accused not
because his conduct falls outside the legal norm but rather
because, even if his guilt has been established, the methods
employed on behalf of the government to bring about the crime
"cannot be countenanced." To some extent, this reflects the notion
that the courts should not become tainted by condoning law
enforcement improprieties.[45] Hence, the transactions leading up
to the offense, the interaction between the accused and law
enforcement officer and the accused's response to the officer's
inducements, the gravity of the crime, and the difficulty of detecting
instances of its commission are considered in judging what the
effect of the officer's conduct would be on a normal person.[46]
Both the "subjective" and "objective" approaches have been
criticized and objected to. It is claimed that the "subjective" test
creates an "anything goes" rule, i.e., if the court determines that an
accused was predisposed to commit the crime charged, no level of
police deceit, badgering or other unsavory practices will be
deemed impermissible.[47] Delving into the accused's character
and predisposition obscures the more important task of judging
police behavior and prejudices the accused more generally. It
ignores the possibility that no matter what his past crimes and
general disposition were, the accused might not have committed
the particular crime unless confronted with inordinate inducements.
CRIM LAW FINALS I ACJUCO 79
[48] On the other extreme, the purely "objective" test eliminates
entirely the need for considering a particular accused's
predisposition. His predisposition, at least if known by the police,
may have an important bearing upon the question of whether the
conduct of the police and their agents was proper.[49] The
undisputed fact that the accused was a dangerous and chronic
offender or that he was a shrewd and active member of a criminal
syndicate at the time of his arrest is relegated to irrelevancy.[50]
Objections to the two tests gave birth to hybrid approaches to
entrapment. Some states in the United States now combine both
the "subjective" and "objective" tests.[51] In Cruz v. State,[52] the
Florida Supreme Court declared that the permissibility of police
conduct must first be determined. If this objective test is satisfied,
then the analysis turns to whether the accused was predisposed to
commit the crime.[53] In Baca v. State,[54] the New Mexico
Supreme Court modified the state's entrapment analysis by
holding that "a criminal defendant may successfully assert a
defense of entrapment, either by showing lack of predisposition to
commit the crime for which he is charged, or, that the police
exceeded the standards of proper investigation.[55] The hybrid
approaches combine and apply the "objective" and "subjective"
tests alternatively or concurrently.
As early as 1910, this Court has examined the conduct of law
enforcers while apprehending the accused caught in flagrante
delicto. In United States v. Phelps,[56] we acquitted the accused
from the offense of smoking opium after finding that the
government employee, a BIR personnel, actually induced him to
commit the crime in order to prosecute him. Smith, the BIR agent,
testified that Phelps' apprehension came after he overheard
Phelps in a saloon say that he liked smoking opium on some
occasions. Smith's testimony was disregarded. We accorded
significance to the fact that it was Smith who went to the accused
three times to convince him to look for an opium den where both of
them could smoke this drug.[57] The conduct of the BIR agent was
condemned as "most reprehensible."[58] In People v. Abella,[59]
we acquitted the accused of the crime of selling explosives after
examining the testimony of the apprehending police officer who
pretended to be a merchant. The police officer offered "a tempting
price, xxx a very high one" causing the accused to sell the
explosives. We found that there was inducement, "direct,
persistent and effective" by the police officer and that outside of his
testimony, there was no evidence sufficient to convict the accused.
[60] In People v. Lua Chu and Uy Se Tieng,[61] we convicted the
accused after finding that there was no inducement on the part of
the law enforcement officer. We stated that the Customs secret
serviceman smoothed the way for the introduction of opium from
Hongkong to Cebu after the accused had already planned its
importation and ordered said drug. We ruled that the apprehending
officer did not induce the accused to import opium but merely
entrapped him by pretending to have an understanding with the
Collector of Customs of Cebu to better assure the seizure of the
prohibited drug and the arrest of the surreptitious importers.[62]
It was also in the same case of People v. Lua Chu and Uy Se
Tieng[63] we first laid down the distinction between entrapment
vis-a-vis instigation or inducement. Quoting 16 Corpus Juris,[64]
we held:
"ENTRAPMENT AND INSTIGATION. -- While it has been said that
the practice of entrapping persons into crime for the purpose of
instituting criminal prosecutions is to be deplored, and while
instigation, as distinguished from mere entrapment, has often been
condemned and has sometimes been held to prevent the act from
being criminal or punishable, the general rule is that it is no
defense to the perpetrator of a crime that facilities for its
commission were purposely placed in his way, or that the criminal
act was done at the 'decoy solicitation' of persons seeking to
expose the criminal, or that detectives feigning complicity in the act
were present and apparently assisting in its commission.
Especially is this true in that class of cases where the offense is
one of a kind habitually committed, and the solicitation merely
furnishes evidence of a course of conduct. Mere deception by the
detective will not shield defendant, if the offense was committed by
him, free from the influence or instigation of the detective. The fact
that an agent of an owner acts as a supposed confederate of a
thief is no defense to the latter in a prosecution for larceny,
provided the original design was formed independently of such
agent; and where a person approached by the thief as his
confederate notifies the owner or the public authorities, and, being
authorised by them to do so, assists the thief in carrying out the
plan, the larceny is nevertheless committed. It is generally held
that it is no defense to a prosecution for an illegal sale of liquor that
the purchase was made by a 'spotter,' detective, or hired informer;
but there are cases holding the contrary."[65]
The distinction above-quoted was reiterated in two (2) decisions of
the Court of Appeals. In People v. Galicia,[66] the appellate court
declared that "there is a wide difference between entrapment and
instigation." The instigator practically induces the would-be
accused into the commission of the offense and himself becomes
a co-principal. In entrapment, ways and means are resorted to by
the peace officer for the purpose of trapping and capturing the
lawbreaker in the execution of his criminal plan.[67] In People v.
Tan Tiong,[68] the Court of Appeals further declared that
"entrapment is no bar to the prosecution and conviction of the
lawbreaker."[69]
The pronouncement of the Court of Appeals in People v. Galicia
was affirmed by this Court in People v. Tiu Ua.[70] Entrapment, we
further held, is not contrary to public policy. It is instigation that is
deemed contrary to public policy and illegal.[71]
It can thus be seen that the concept of entrapment in the American
jurisdiction is similar to instigation or inducement in Philippine
jurisprudence. Entrapment in the Philippines is not a defense
available to the accused. It is instigation that is a defense and is
considered an absolutory cause.[72] To determine whether there is
entrapment or instigation, our courts have mainly examined the
conduct of the apprehending officers, not the predisposition of the
accused to commit the crime. The "objective" test first applied in
United States v. Phelps has been followed in a series of similar
cases.[73] Nevertheless, adopting the "objective" approach has
not precluded us from likewise applying the "subjective" test. In
People v. Boholst,[74] we applied both tests by examining the
conduct of the police officers in a buy-bust operation and admitting
evidence of the accused's membership with the notorious and
dreaded Sigue-Sigue Sputnik Gang. We also considered
accused's previous convictions of other crimes[75] and held that
his opprobrious past and membership with the dreaded gang
strengthened the state's evidence against him. Conversely, the
evidence that the accused did not sell or smoke marijuana and did
not have any criminal record was likewise admitted in People v.
Yutuc[76] thereby sustaining his defense that led to his acquittal.
The distinction between entrapment and instigation has proven to
be very material in anti-narcotics operations. In recent years, it has
become common practice for law enforcement officers and agents
to engage in buy-bust operations and other entrapment
procedures in apprehending drug offenders. Anti-narcotics laws,
like anti-gambling laws are regulatory statutes.[77] They are rules
of convenience designed to secure a more orderly regulation of the
affairs of society, and their violation gives rise to crimes mala
prohibita.[78] They are not the traditional type of criminal law such
as the law of murder, rape, theft, arson, etc. that deal with crimes
mala in se or those inherently wrongful and immoral.[79] Laws
defining crimes mala prohibita condemn behavior directed, not
against particular individuals, but against public order.[80] Violation
is deemed a wrong against society as a whole and is generally
unattended with any particular harm to a definite person.[81]
These offenses are carried on in secret and the violators resort to
CRIM LAW FINALS I ACJUCO 80
many devices and subterfuges to avoid detection. It is rare for any
member of the public, no matter how furiously he condemns acts
mala prohibita, to be willing to assist in the enforcement of the law.
It is necessary, therefore, that government in detecting and
punishing violations of these laws, rely, not upon the voluntary
action of aggrieved individuals, but upon the diligence of its own
officials. This means that the police must be present at the time the
offenses are committed either in an undercover capacity or
through informants, spies or stool pigeons.[82]
Though considered essential by the police in enforcing vice
legislation, the confidential informant system breeds abominable
abuse. Frequently, a person who accepts payment from the police
in the apprehension of drug peddlers and gamblers also accept
payment from these persons who deceive the police. The
informant himself may be a drug addict, pickpocket, pimp, or other
petty criminal. For whatever noble purpose it serves, the spectacle
that government is secretly mated with the underworld and uses
underworld characters to help maintain law and order is not an
inspiring one.[83] Equally odious is the bitter reality of dealing with
unscrupulous, corrupt and exploitative law enforcers. Like the
informant, unscrupulous law enforcers' motivations are legion--
harassment, extortion, vengeance, blackmail, or a desire to report
an accomplishment to their superiors. This Court has taken judicial
notice of this ugly reality in a number of cases[84] where we
observed that it is a common modus operandi of corrupt law
enforcers to prey on weak and hapless persons, particularly
unsuspecting provincial hicks.[85] The use of shady underworld
characters as informants, the relative ease with which illegal drugs
may be planted in the hands or property of trusting and ignorant
persons, and the imposed secrecy that inevitably shrouds all drug
deals have compelled this Court to be extra-vigilant in deciding
drug cases.[86] Criminal activity is such that stealth and strategy,
although necessary weapons in the arsenal of the police officer,
become as objectionable police methods as the coerced
confession and the unlawful search. As well put by the Supreme
Court of California in People v. Barraza,[87]
"[E]ntrapment is a facet of a broader problem. Along with illegal
search and seizures, wiretapping, false arrest, illegal detention and
the third degree, it is a type of lawless enforcement. They all spring
from common motivations. Each is a substitute for skillful and
scientific investigation. Each is condoned by the sinister sophism
that the end, when dealing with known criminals of the 'criminal
classes,' justifies the employment of illegal means."[88]
It is thus imperative that the presumption, juris tantum, of regularity
in the performance of official duty by law enforcement agents
raised by the Solicitor General be applied with studied restraint.
This presumption should not by itself prevail over the presumption
of innocence and the constitutionally-protected rights of the
individual.[89] It is the duty of courts to preserve the purity of their
own temple from the prostitution of the criminal law through
lawless enforcement.[90] Courts should not allow themselves to be
used as an instrument of abuse and injustice lest an innocent
person be made to suffer the unusually severe penalties for drug
offenses.[91]
We therefore stress that the "objective" test in buy-bust operations
demands that the details of the purported transaction must be
clearly and adequately shown. This must start from the initial
contact between the poseur-buyer and the pusher, the offer to
purchase, the promise or payment of the consideration until the
consummation of the sale by the delivery of the illegal drug subject
of the sale.[92] The manner by which the initial contact was made,
whether or not through an informant, the offer to purchase the
drug, the payment of the "buy-bust" money, and the delivery of the
illegal drug, whether to the informant alone or the police officer,
must be the subject of strict scrutiny by courts to insure that law-
abiding citizens are not unlawfully induced to commit an offense.
Criminals must be caught but not at all cost. At the same time,
however, examining the conduct of the police should not disable
courts into ignoring the accused's predisposition to commit the
crime. If there is overwhelming evidence of habitual delinquency,
recidivism or plain criminal proclivity, then this must also be
considered. Courts should look at all factors to determine the
predisposition of an accused to commit an offense in so far as they
are relevant to determine the validity of the defense of inducement.
In the case at bar, the evidence shows that it was the confidential
informant who initially contacted accused-appellant Doria. At the
pre-arranged meeting, the informant was accompanied by PO3
Manlangit who posed as the buyer of marijuana. PO3 Manlangit
handed the marked money to accused-appellant Doria as advance
payment for one (1) kilo of marijuana. Accused-appellant Doria
was apprehended when he later returned and handed the brick of
marijuana to PO3 Manlangit.
PO3 Manlangit testified in a frank, spontaneous, straighforward
and categorical manner and his credibility was not crumpled on
cross-examination by defense counsel. Moreover, PO3 Manlangit's
testimony was corroborated on its material points by SPO1 Badua,
his back-up security. The non-presentation of the confidential
informant is not fatal to the prosecution. Informants are usually not
presented in court because of the need to hide their identity and
preserve their invaluable service to the police.[93] It is well-settled
that except when the appellant vehemently denies selling
prohibited drugs and there are material inconsistencies in the
testimonies of the arresting officers,[94] or there are reasons to
believe that the arresting officers had motives to testify falsely
against the appellant,[95] or that only the informant was the
poseur-buyer who actually witnessed the entire transaction,[96] the
testimony of the informant may be dispensed with as it will merely
be corroborative of the apprehending officers' eyewitness
testimonies.[97] There is no need to present the informant in court
where the sale was actually witnessed and adequately proved by
prosecution witnesses.[98]
The inconsistencies in PO3 Manlangit's and SPO1 Badua's
testimonies and the other police officers' testimonies are minor and
do not detract from the veracity and weight of the prosecution
evidence. The source of the money for the buy-bust operation is
not a critical fact in the case at bar. It is enough that the
prosecution proved that money was paid to accused-appellant
Doria in consideration of which he sold and delivered the
marijuana.
Contrary to accused-appellant Doria's claim, the one kilo of
marijuana "sold" by him to PO3 Manlangit was actually identified
by PO3 Manlangit himself before the trial court. After appellants'
apprehension, the Narcom agents placed this one (1) brick of
marijuana recovered from appellant Doria inside the carton box
lumping it together with the ten (10) bricks inside. This is why the
carton box contained eleven (11) bricks of marijuana when brought
before the trial court. The one (1) brick recovered from appellant
Doria and each of the ten (10) bricks, however, were identified and
marked in court. Thus:
"ATTY. ARIAS, Counsel for Florencio Doria:
Mr. Police Officer, when you identified that box,. Tell the court, how
were you able to identify that box?
A This is the box that I brought to the crime laboratory which
contained the eleven pieces of marijuana brick we confiscated
from the suspect, sir.
Q Please open it and show those eleven bricks.
PROSECUTOR Witness bringing out from the said box...
ATTY. VALDEZ, Counsel for Violeta Gaddao:
CRIM LAW FINALS I ACJUCO 81
Your Honor, I must protest the line of questioning considering the
fact that we are now dealing with eleven items when the question
posed to the witness was what was handed to him by Jun?
COURT So be it.
ATTY. ARIAS May we make it of record that the witness is pulling
out item after item from the box showed to him and brought in front
of him.
COURT Noted.
Q Now tell the court, how did you know that those are the eleven
bricks?
x x x.
A I have markings on these eleven bricks, sir.
Q Point to the court, where are those markings?
A Here, sir, my signature, my initials with the date, sir.
PROSECUTOR Witness showed a white wrapper and pointing to
CLM and the signature.
Q Whose signature is that?
ATTY VALDEZ Your Honor, may we just limit the inquiry to the
basic question of the fiscal as to what was handed to him by the
accused Jun, your Honor?
PROSECUTOR Your Honor, there is already a ruling by this
Honorable Court, your Honor, despite reconsideration.
COURT Let the prosecution do its own thing and leave the
appreciation of what it has done to the court.
ATTY. VALDEZ We submit, your Honor.
A This brick is the one that was handed to me by the suspect Jun,
sir.
COURT Why do you know that that is the thing? Are you sure that
is not "tikoy?"
A Yes, your Honor.
Q What makes you so sure?
A I am sure that this is the one, your Honor. This is the Exhibit "A"
which I marked before I brought it to the PCCL, your Honor.
Q What are you sure of?
A I am sure that this is the brick that was given to me by one alias
Jun, sir.
Q What makes you so sure?
A Because I marked it with my own initials before giving it to the
investigator and before we brought it to the PCCL, your Honor.
x x x.
PROSECUTOR May we request that a tag be placed on this white
plastic bag and this be marked as Exhibit "D?"
COURT Mark it as Exhibit "D."
Q To stress, who made the entries of this date, Exhibit "A" then the
other letters and figures on this plastic?
A This one, the signature, I made the signature, the date and the
time and this Exhibit "A."
Q How about this one?
A I don't know who made this marking, sir.
PROSECUTOR May it be of record that this was just entered this
morning.
Q I am asking you about this "itim" and not the "asul."
A This CLM, the date and the time and the Exhibit "A," I was the
one who made these markings, sir.
PROSECUTOR May we place on record that the one that was
enclosed...
ATTY. ARIAS Your Honor, there are also entries included in that
enclosure where it appears D-394-95, also Exhibit "A," etc. etc.,
that was not pointed to by the witness. I want to make it of record
that there are other entries included in the enclosure.
COURT Noted. The court saw it.
Q Now, and this alleged brick of marijuana with a piece of paper,
with a newspaper wrapping with a piece of paper inside which
reads: "D-394-95, Exhibit A, 970 grams SSL" be marked as our
Exhibit "D-2?"
COURT Tag it. Mark it.
Q This particular exhibit that you identified, the wrapper and the
contents was given to you by whom?
A It was given to me by suspect Jun, sir.
Q Whereat?
A At the corner of Boulevard and Jacinto St., sir.
Q How about the other items that you were able to recover?
x x x.
A These other marijuana bricks, because during our follow-up,
because according to Jun the money which I gave him was in the
hands of Neneth and so we proceeded to the house of Neneth, sir.
x x x."[99]
The first brick identified by P03 Manlangit was the brick of
marijuana "given to [him] by suspect Jun" at the corner of
Boulevard and Jacinto Streets. This brick, including the newspaper
and white plastic wrapping were marked as Exhibits "D," "D-1,"
and "D-2" and described as weighing nine hundred seventy (970)
grams.[100]
We also reject appellant's submission that the fact that PO3
Manlangit and his team waited for almost one hour for appellant
Doria to give them the one kilo of marijuana after he "paid"
P1,600.00 strains credulity. Appellant cannot capitalize on the
circumstance that the money and the marijuana in the case at bar
did not change hands under the usual "kaliwaan" system. There is
no rule of law which requires that in "buy-bust" operations there
must be a simultaneous exchange of the marked money and the
prohibited drug between the poseur-buyer and the pusher.[101]
CRIM LAW FINALS I ACJUCO 82

Again, the decisive fact is that the poseur-buyer received the

marijuana from the accused-appellant.[102] Q Whereat?

We also hold that the warrantless arrest of accused-appellant A At the corner of Boulevard and Jacinto Street, sir.
Doria is not unlawful. Warrantless arrests are allowed in three
instances as provided by Section 5 of Rule 113 of the 1985 Rules Q How about the other items that you were able to recover?
on Criminal Procedure, to wit:
ATTY. VALDEZ: We submit at this juncture, your Honor, that there
"Sec. 5. Arrest without warrant; when lawful. -- A peace officer or a will be no basis for that question.
private person may, without a warrant, arrest a person:
COURT There is. Answer.
(a) When, in his presence, the person to be arrested has
committed, is actually committing, or is attempting to commit an A These other marijuana bricks, because during our follow-up,
offense; because according to Jun the money which I gave him was in the
hands of Neneth and so we proceeded to the house of Neneth, sir.
(b) When an offense has in fact just been committed, and he has
personal knowledge of facts indicating that the person to be Q Whereat?
arrested has committed it; and
A At Daang Bakal near the crime scene at Shaw Boulevard, sir.
(c) When the person to be arrested is a prisoner who escaped
from a penal establishment or place where he is serving final Q And what happened upon arrival thereat?
judgment or temporarily confined while his case is pending, or has
escaped while being transferred from one confinement to another. A We saw alias Neneth inside the house and we asked him to give
us the buy-bust money, sir.
x x x."[103]
Q You mentioned "him?"
Under Section 5 (a), as above-quoted, a person may be arrested
without a warrant if he "has committed, is actually committing, or is A Her, sir. We asked her to give us the money, the marked money
attempting to commit an offense." Appellant Doria was caught in which Jun gave her, sir.
the act of committing an offense. When an accused is
apprehended in flagrante delicto as a result of a buy-bust Q And what happened?
operation, the police are not only authorized but duty-bound to
arrest him even without a warrant.[104] A At this instance, it was SPO1 Badua who can testify regarding
this buy-bust money, sir.
The warrantless arrest of appellant Gaddao, the search of her
person and residence, and the seizure of the box of marijuana and x x x."[112]
marked bills are different matters.
SPO1 Badua testified on cross-examination that:
Our Constitution proscribes search and seizure without a judicial
warrant and any evidence obtained without such warrant is Q What was your intention in going to the house of Aling Neneth?
inadmissible for any purpose in any proceeding.[105] The rule is,
however, not absolute. Search and seizure may be made without a A To arrest her, sir.
warrant and the evidence obtained therefrom may be admissible in
the following instances:[106] (1) search incident to a lawful arrest; Q But the fact is, Mr. Witness, when you reached the house of
[107] (2) search of a moving motor vehicle;[108] (3) search in Aling Neneth, Aling Neneth was there?
violation of customs laws;[109] (4) seizure of evidence in plain
view;[110] (5) when the accused himself waives his right against A Yes, sir.
unreasonable searches and seizures.[111]
Q As far as you can see, she was just inside her house?
The prosecution admits that appellant Gaddao was arrested
without a warrant of arrest and the search and seizure of the box A I saw her outside, sir.
of marijuana and the marked bills were likewise made without a
search warrant. It is claimed, however, that the warrants were not Q She was fetching water as a matter of fact?
necessary because the arrest was made in "hot pursuit" and the
search was an incident to her lawful arrest. A She was `sa bandang poso.'

To be lawful, the warrantless arrest of appellant Gaddao must fall
under any of the three (3) instances enumerated in Section 5 of
Rule 113 of the 1985 Rules on Criminal Procedure as aforequoted.
The direct testimony of PO3 Manlangit, the arresting officer,
however shows otherwise:
"ATTY VALDEZ, Counsel for appellant Gaddao:
Q Carrying a baby?
A No, sir.
Q At that particular time when you reached the house of Aling
Neneth and saw her outside the house, she was not committing
any crime, she was just outside the house?

We submit at this juncture, your Honor, that there will be no basis A No, sir.
for that question.
Q She was not about to commit any crime because she was just
Q This particular exhibit that you identified, the wrapper and the outside the house doing her daily chores. Am I correct?
contents was given to you by whom?
A I just saw her outside, sir.
A It was given to me by suspect Jun, sir.
CRIM LAW FINALS I ACJUCO 83

Q And at that point in time you already wanted to arrest her. That is
correct, is it not? A The buy-bust money was recovered from the house of Aling
Neneth, sir.
A Yes, sir.
Q It was taken from the house of Aling Neneth, not from the person
Q Now, if any memory of your testimony is correct, according to of Aling Neneth. Is that what you are trying to tell the Court?
you SPO1 Manlangit approached her?
A No, sir.
A PO3 Manlangit, sir.
ATTY. VALDEZ: I am through with this witness, your Honor."[113]
Q You did not approach her because PO3 Manlangit approached
her? Accused-appellant Gaddao was not caught red-handed during the
buy-bust operation to give ground for her arrest under Section 5
A Yes, sir. (a) of Rule 113. She was not committing any crime. Contrary to the
finding of the trial court, there was no occasion at all for appellant
Q During all the time that this confrontation, arrest or whatever by Gaddao to flee from the policemen to justify her arrest in "hot
SPO3 Manlangit was taking place, you were just in the side lines? pursuit."[114] In fact, she was going about her daily chores when
the policemen pounced on her.
A I was just watching, sir.
Neither could the arrest of appellant Gaddao be justified under the
Q So you were just an on-looker to what Manlangit was doing, second instance of Rule 113. "Personal knowledge" of facts in
because precisely according to you your role in this buy-bust arrests without warrant under Section 5 (b) of Rule 113 must be
operation was as a back-up? based upon "probable cause" which means an "actual belief or
reasonable grounds of suspicion."[115] The grounds of suspicion
A Yes, sir. are reasonable when, in the absence of actual belief of the
arresting officers, the suspicion that the person to be arrested is
Q Who got the alleged marijuana from inside the house of Mrs. probably guilty of committing the offense, is based on actual facts,
Neneth? i.e., supported by circumstances sufficiently strong in themselves
to create the probable cause of guilt of the person to be arrested.
A PO3 Manlangit, sir. [116] A reasonable suspicion therefore must be founded on
probable cause, coupled with good faith on the part of the peace
Q Manlangit got the marijuana? officers making the arrest.[117]

A Yes, sir. Accused-appellant Gaddao was arrested solely on the basis of the
alleged identification made by her co-accused. PO3 Manlangit,
Q And the money from Aling Neneth? however, declared in his direct examination that appellant Doria
named his co-accused in response to his (PO3 Manlangit's) query
A I don't know, sir. as to where the marked money was.[118] Appellant Doria did not
point to appellant Gaddao as his associate in the drug business,
Q You did not even know who got the money from Aling Neneth? but as the person with whom he left the marked bills. This
identification does not necessarily lead to the conclusion that
PROSECUTOR: appellant Gaddao conspired with her co-accused in pushing drugs.
Appellant Doria may have left the money in her house,[119] with or
There is no basis for this question, your Honor. Money, there's no without her knowledge, with or without any conspiracy. Save for
testimony on that. accused-appellant Doria's word, the Narcom agents had no
reasonable grounds to believe that she was engaged in drug
ATTY. VALDEZ: pushing. If there is no showing that the person who effected the
warrantless arrest had, in his own right, knowledge of facts
I was asking him precisely. implicating the person arrested to the perpetration of a criminal
offense, the arrest is legally objectionable.[120]
PROSECUTOR:
Since the warrantless arrest of accused-appellant Gaddao was
No basis. illegal, it follows that the search of her person and home and the
subsequent seizure of the marked bills and marijuana cannot be
COURT: deemed legal as an incident to her arrest. This brings us to the
question of whether the trial court correctly found that the box of
Sustained. marijuana was in plain view, making its warrantless seizure valid.

Q Alright. I will ask you a question and I expect an honest answer.
According to the records, the amount of P1,600.00 was recovered
from the person of Aling Neneth. That's right?
A Yes, sir, the buy-bust money.
Q What you are now saying for certain and for the record is the
fact that you were not the one who retrieved the money from Aling
Neneth, it was Manlangit maybe?
A I saw it, sir.
Q It was Manlangit who got the money from Aling Neneth?
Objects falling in plain view of an officer who has a right to be in
the position to have that view are subject to seizure even without a
search warrant and may be introduced in evidence.[121] The "plain
view" doctrine applies when the following requisites concur: (a) the
law enforcement officer in search of the evidence has a prior
justification for an intrusion or is in a position from which he can
view a particular area; (b) the discovery of the evidence in plain
view is inadvertent; (c) it is immediately apparent to the officer that
the item he observes may be evidence of a crime, contraband or
otherwise subject to seizure.[122] The law enforcement officer
must lawfully make an initial intrusion or properly be in a position
from which he can particularly view the area.[123] In the course of
such lawful intrusion, he came inadvertently across a piece of
CRIM LAW FINALS I ACJUCO 84

evidence incriminating the accused.[124] The object must be open COURT

to eye and hand[125] and its discovery inadvertent.[126]
Noted.
It is clear that an object is in plain view if the object itself is plainly
exposed to sight. The difficulty arises when the object is inside a Q At this juncture, you went inside the house?
closed container. Where the object seized was inside a closed
package, the object itself is not in plain view and therefore cannot A Yes, sir.
be seized without a warrant. However, if the package proclaims its
contents, whether by its distinctive configuration, its transparency, Q And got hold of this carton?
or if its contents are obvious to an observer, then the contents are
in plain view and may be seized.[127] In other words, if the A Yes, sir.
package is such that an experienced observer could infer from its
appearance that it contains the prohibited article, then the article is Q Did you mention anything to Aling Neneth?
deemed in plain view.[128] It must be immediately apparent to the
police that the items that they observe may be evidence of a crime, A I asked her, what's this...
contraband or otherwise subject to seizure.[129]
Q No, no. no. did you mention anything to Aling Neneth before
PO3 Manlangit, the Narcom agent who found the box, testified on getting the carton?
cross-examination as follows:
A I think it was Badua who accosted Aling Neneth regarding the
"ATTY. VALDEZ: buy-bust money and he asked "Sa iyo galing ang marijuanang ito,
nasaan ang buy-bust money namin?" sir.
So here we are. When you and Badua arrived, Aling Neneth was
inside the house? Q Making reference to the marijuana that was given by alias Jun?

A Yes, sir. A Yes, sir.

Q Badua demanded from Aling Neneth the buy-bust money? Q When you proceeded to take hold of this carton, Aling Neneth
was not yet frisked, is it not [sic]?
A Yes, sir.
A I just don't know if she was frisked already by Badua, sir.
Q At that particular instance, you saw the carton?
Q Who got hold of this?
A Yes, sir.
A I was the one, sir.
Q This carton, according to you was under a table?
Q You were the one who got this?
A Yes, sir, dining table.
A Yes, sir.
Q I noticed that this carton has a cover?
Q At that particular point in time, you did not know if the alleged
A Yes, sir. buy-bust money was already retrieved by Badua?

Q I ask you were the flaps of the cover raised or closed? A Yes, sir.

A It was open, sir. Not like that. Q You went inside the house?

COURT A Yes, sir.

Go down there. Show to the court. Q You did not have any search warrant?

INTERPRETER A Yes, sir.

Witness went down the witness stand and approached a carton Q In fact, there was nothing yet as far as you were concerned to
box. validate the fact that Mrs. Gadao was in possession of the buy-
bust money because according to you, you did not know whether
A Like this, sir. Badua already retrieved the buy-bust money from her?

PROSECUTOR A Yes, sir.

Can we describe it? Q How far was this from the door?

ATTY. VALDEZ A Two and a half meters from the door, sir. It was in plain view.

Yes. Q Under the table according to you?

PROSECUTOR A Yes, sir, dining table.

One flap is inside and the other flap is standing and with the Q Somewhere here?
contents visible.
A It's far, sir.
CRIM LAW FINALS I ACJUCO 85

Q Canned goods?
PROSECUTOR
A Yes, sir.
May we request the witness to place it, where he saw it?
Q It could be ice cream because it says Snow Pop, Ice Pop?
A Here, sir.
A I presumed it was also marijuana because it may ...
Q What you see is a carton?
Q I am not asking you what your presumptions are. I'm asking you
A Yes, sir, with plastic. what it could possibly be.

Q Marked "Snow Time Ice Pop?" A It's the same plastic, sir.

A Yes, sir. ATTY. VALDEZ

Q With a piece of plastic visible on top of the carton? I'm not even asking you that question so why are you voluntarily
saying the information. Let the prosecutor do that for you.
A Yes, sir.
COURT
Q That is all that you saw?
Continue. Next question.
A Yes, sir.
x x x."[130]
PROSECUTOR
PO3 Manlangit and the police team were at appellant Gaddao's
For the record, your Honor... house because they were led there by appellant Doria. The
Narcom agents testified that they had no information on appellant
Q You were only able to verify according to you... Gaddao until appellant Doria named her and led them to her.[131]
Standing by the door of appellant Gaddao's house, PO3 Manlangit
PROSECUTOR had a view of the interior of said house. Two and a half meters
away was the dining table and underneath it was a carton box. The
Panero, wait. Because I am objecting to the words a piece of box was partially open and revealed something wrapped in plastic.
plastic. By reading it...
In his direct examination, PO3 Manlangit said that he was sure that
ATTY. VALDEZ the contents of the box were marijuana because he himself
checked and marked the said contents.[132] On cross-
That's a piece of plastic. examination, however, he admitted that he merely presumed the
contents to be marijuana because it had the same plastic wrapping
PROSECUTOR as the "buy-bust marijuana." A close scrutiny of the records reveals
that the plastic wrapper was not colorless and transparent as to
By reading it, it will connote... this is not a piece of plastic. clearly manifest its contents to a viewer. Each of the ten (10) bricks
of marijuana in the box was individually wrapped in old newspaper
ATTY. VALDEZ and placed inside plastic bags-- white, pink or blue in color.[133]
PO3 Manlangit himself admitted on cross-examination that the
What is that? What can you say, Fiscal? I'm asking you? contents of the box could be items other than marijuana. He did
not know exactly what the box contained that he had to ask
PROSECUTOR appellant Gaddao about its contents.[134] It was not immediately
apparent to PO3 Manlangit that the content of the box was
With due respect, what I am saying is, let's place the size of the marijuana. The marijuana was not in plain view and its seizure
plastic. A piece of plastic may be big or a small one, for record without the requisite search warrant was in violation of the law and
purposes. the Constitution.[135] It was fruit of the poisonous tree and should
have been excluded and never considered by the trial court.[136]
COURT
The fact that the box containing about six (6) kilos of
Leave that to the court. marijuana[137] was found in the house of accused-appellant
Gaddao does not justify a finding that she herself is guilty of the
PROSECUTOR crime charged.[138] Apropos is our ruling in People v. Aminnudin,
[139] viz:
Leave that to the court.
"The Court strongly supports the campaign of the government
Q The only reason according to you, you were able to... Look at against drug addiction and commends the efforts of our law
this, no even Superman... I withdraw that. Not even a man with enforcement officers against those who would inflict this
very kin [sic] eyes can tell the contents here. And according to the malediction upon our people, especially the susceptible youth. But
Court, it could be "tikoy," is it not [sic]? as demanding as this campaign may be, it cannot be more so than
the compulsions of the Bill of Rights for the protection of the liberty
A Yes, sir. of every individual in the realm, including the basest of criminals.
The Constitution covers with the mantle of its protection the
Q Siopao? innocent and the guilty alike against any manner of high-
handedness from the authorities, however praiseworthy their
A Yes, sir. intentions.
CRIM LAW FINALS I ACJUCO 86
Those who are supposed to enforce the law are not justified in
disregarding the right of the individual in the name of order. Order
is too high a price for the loss of liberty. As Justice Holmes, again,
said, 'I think it a less evil that some criminals should escape than
that the government should play an ignoble part.' It is simply not
allowed in the free society to violate a law to enforce another,
especially if the law violated is the Constitution itself."[140]
Section 4 of Republic Act No. 6425, the Dangerous Drugs Act of
1972, as amended by Section 13 of Republic Act No. 7659
punishes the "sale, administration, delivery, distribution and
transportation of a prohibited drug" with the penalty of reclusion
perpetua to death and a fine ranging from P500,000.00 to P10
million, to wit:
"Sec. 4. Sale, Administration, Delivery, Distribution and
Transportation of Prohibited Drugs.-- The penalty of reclusion
perpetua to death, and a fine ranging from five hundred thousand
pesos to ten million pesos shall be imposed upon any person who,
unless authorized by law, shall sell, administer, deliver, give away
to another, distribute, dispatch in transit or transport any prohibited
drug, or shall act as a broker in any of such transactions.
x x x."
In every prosecution for illegal sale of dangerous drugs, what is
material is the submission of proof that the sale took place
between the poseur-buyer and the seller thereof and the
presentation of the drug, i.e., the corpus delicti, as evidence in
court.[141] The prosecution has clearly established the fact that in
consideration of P1,600.00 which he received, accused-appellant
Doria sold and delivered nine hundred seventy (970) grams of
marijuana to PO3 Manlangit, the poseur-buyer. The prosecution,
however, has failed to prove that accused-appellant Gaddao
conspired with accused-appellant Doria in the sale of said drug.
There being no mitigating or aggravating circumstances, the lower
penalty of reclusion perpetua must be imposed.[142]
IN VIEW WHEREOF, the decision of the Regional Trial Court,
Branch 156, Pasig City acting as a Special Court in Criminal Case
No. 3307-D is reversed and modified as follows:
1. Accused-appellant Florencio Doria y Bolado is sentenced to
suffer the penalty of reclusion perpetua and to pay a fine of five
hundred thousand pesos (P500,000.00).
2. Accused-appellant Violeta Gaddao y Catama is acquitted.
SO ORDERED.
ABSOLUTORY CAUSES
RPC ART 6(3) CONSUMMATED, FRUSTRATED, AND
ATTEMPTED FELONIES. - There is an attempt when the offender
commences the commission of a felony directly or over acts, and
does not perform all the acts of execution which should produce
the felony by reason of some cause or accident other than this
own spontaneous desistance.
ART. 7. WHEN LIGHT FELONIES ARE PUNISHABLE. — Light
felonies are punishable only when they have been consummated,
with the exception of those committed against person or property.
ART. 16. WHO ARE CRIMINALLY LIABLE — the following are
criminally liable for grave and less grave felonies:
1. Principals.
2. Accomplices.
3. Accessories.
The following are criminally liable for light felonies:
1. Principals
2. Accomplices.chanrobles virtua
ART. 20. ACCESSORIES WHO ARE EXEMPT FROM CRIMINAL
LIABILITY. — The penalties prescribed for accessories shall not
be imposed upon those who are such with respect to their
spouses, ascendants, descendants, legitimate, natural, and
adopted brothers and sisters, or relatives by affinity within the
same degrees, with the single exception of accessories falling
within the provisions of paragraph 1 of the next preceding article.
ART. 247. DEATH OR PHYSICAL INJURIES INFLICTED UNDER
EXCEPTIONAL CIRCUMSTANCES. — Any legally married
person who having surprised his spouse in the act of committing
sexual intercourse with another person, shall kill any of them or
both of them in the act or immediately thereafter, or shall inflict
upon them any serious physical injury, shall suffer the penalty of
destierro.
If he shall inflict upon them physical injuries of any other kind, he
shall be exempt from punishment.
These rules shall be applicable, under the same circumstances, to
parents with respect to their daughters under eighteen years of
age, and their seducer, while the daughters are living with their
parents.
Any person who shall promote or facilitate the prostitution of his
wife or daughter, or shall otherwise have consented to the infidelity
of the other spouse shall not be entitled to the benefits of this
article.
ART. 280. QUALIFIED TRESPASS TO DWELLING. — Any
private person who shall enter the dwelling of another against the
latter's will shall be punished by arresto mayor and a fine not
exceeding 1,000 pesos.
If the offense be committed by means of violence or intimidation,
the penalty shall be prision correccional in its medium and
maximum periods and a fine not exceeding 1,000 pesos.
The provisions of this article shall not be applicable to any person
who shall enter another's dwelling for the purpose of preventing
some serious harm to himself, the occupants of the dwelling or a
third person, nor shall it be applicable to any person who shall
enter a dwelling for the purpose of rendering some service to
humanity or justice, nor to anyone who shall enter cafes, taverns,
inn and other public houses, while the same are open.
EXEMPTION FROM CRIMINAL LIABILITY
IN CRIMES AGAINST PROPERTY
ART. 332. PERSONS EXEMPT FROM CRIMINAL LIABILITY. —
No criminal, but only civil liability, shall result from the commission
of the crime of theft, swindling or malicious mischief committed or
caused mutually by the following persons:
1. Spouses, ascendants and descendants, or relatives by
affinity in the same line.
2. The widowed spouse with respect to the property which
belonged to the deceased spouse before the same shall have
passed into the possession of another; and
3. Brothers and sisters and brothers-in-law and sisters-in-law,
if living together.
The exemption established by this article shall not be applicable to
strangers participating in the commission of the crime.
PROVISIONS RELATIVE TO THE PRECEDING
CHAPTERS OF TITLE ELEVEN
CRIM LAW FINALS I ACJUCO 87

ART. 344. PROSECUTION OF THE CRIMES OF ADULTERY,

CONCUBINAGE, SEDUCTION, ABDUCTION, RAPE AND ACTS
OF LASCIVIOUSNESS. — The crimes of adultery and
concubinage shall not be prosecuted except upon a complaint filed
by the offended spouse.

The offended party cannot institute criminal prosecution without

including both the guilty parties, if they are both alive, nor, in any
case, if he shall have consented or pardoned the offenders.

The offenses of seduction, abduction, rape or acts of

lasciviousness, shall not be prosecuted except upon a complaint
filed by the offended party or her parents, grandparents, or
guardian, nor, in any case, if the offender has been expressly
pardoned by the above named persons, as the case may be.

In cases of seduction, abduction, acts of lasciviousness and rape,

the marriage of the offender with the offended party shall
extinguish the criminal action or remit the penalty already imposed
upon him. The provisions of this paragraph shall also be applicable
to the co-principals, accomplices and accessories after the fact of
the above-mentioned crimes.