RAPE:

1. People vs. Montano Flores Y Paras, GR No. 177355,

Dec. 15, 2010

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 177355 December 15, 2010
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs.
MONTANO FLORES y PARAS, Accused-Appellant.
DECISION
LEONARDO-DE CASTRO, J.:
Accused-appellant Montano Flores is now before us
on review after the Court of Appeals, in its
Decision1 dated November 21, 2006, in CA-G.R. CR
No. 00502, affirmed in toto, the October 13, 2004
Decision2 of the Regional Trial Court (RTC), Branch
62, Gumaca, Quezon, in Criminal Case No. 7098-G,
which found Flores guilty beyond reasonable doubt of
the crime of Qualified Rape as defined and penalized
under Article 266-A of the Revised Penal Code and
imposed on him the penalty of DEATH and the
payment of Seventy-Five Thousand Pesos
(₱75,000.00) as civil indemnity, Fifty Thousand Pesos
(₱50,000.00) as moral damages and Twenty-Five
Thousand Pesos (₱25,000.00) as exemplary damages.
On August 17, 2001, Flores was charged before the
RTC of Rape. The accusatory portion of the
Information reads:
That on or about the 18th day of June 2001, at
Barangay Payte, Municipality of Pitogo, Province of
Quezon, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, with
lewd designs, armed with a bladed weapon, with force,
threats and intimidation, did then and there willfully,
unlawfully and feloniously have carnal knowledge of
one [AAA],3 a minor, 13 years of age at the time of the
commission of the offense, against her will.
That the crime of rape was committed with the
qualifying circumstances of victim being under 18
years of age, the accused is her stepfather, being the
common-law spouse of her mother, and that the rape
was committed in full view of the victim’s mother,
[BBB].4
Flores pleaded not guilty to the charge upon
arraignment on February 12, 2002. Trial on the merits
ensued after the termination of the pre-trial
conference.
The prosecution’s first witness was Dr. Purita T.
Tullas, the Medical Officer of Gumaca District
Hospital who examined the victim AAA. She
produced the Medico-Legal Certificate dated June 19,
2001, wherein she made the following findings:
P.E. * No signs of external physical injury
I.E. : Vulva – presence of moderate amount of
pubic hair
 Labia majora and minora well coaptated
Contusion labia minora, left
Vaginal orifice – admits 5th finger with resistance
Hymen – fresh lacerations at 3, 6, and 9 o’clock
Vaginal smear – negative for sperm cells.5
Dr. Tullas testified that the labia minora was slightly
swollen and reddish which means that there was a
forceful penetration probably by a male sex organ, and
that the lacerations could have been inflicted within
24 hours before the examination. The doctor also said
that it was most likely AAA’s first sexual experience as
the orifice of her vagina was still tight and AAA felt
pain when she was examined. Dr. Tullas said that the
absence of sperm cells was probably because AAA had
washed her organ before she went to the hospital for
examination. Dr. Tullas further testified that AAA was
around 13 years old as her body only started to
physically develop.6
BBB, the victim’s mother, was presented next. She
testified that AAA was 13 years old at the time of the
incident, and that AAA was her daughter with her late
husband. She confirmed that Flores was her live-in-
partner for ten years prior to the incident and that
they all lived together in one house. BBB swore that
on the fateful evening of July 18, 2001, at around eight
o’clock, Flores ordered her to ask her daughter AAA
to sleep with them. Both AAA and BBB obeyed Flores
for fear of his wrath. At around ten o’clock in the
evening, BBB was awakened by the pinch of her
daughter, BBB was then shocked to see that Flores was
already on top of her daughter, who was shouting
"Aray, Aray, Nanay, Aray." She felt angry but could
not do anything because Flores not only had a bladed
weapon poked at her neck, but he also threatened to
kill her if she shouted. BBB endured this horrifying
episode for the next thirty minutes. The following day,
BBB accompanied her daughter AAA to the Barangay
Captain to report the incident. They went to the
municipality’s Department of Social Welfare and
Development then proceeded to the Gumaca District
Hospital.7
The third witness for the prosecution was the victim
herself, AAA. She testified that she knew Flores
because he was the common-law spouse of her
mother. She identified him in open court and said that
she filed this case against him because he raped her.
She testified that on the night she was raped, she was
sleeping between Flores and her mother, BBB, when
she was awakened by Flores who removed her shorts
and panty. Flores then proceeded to insert his penis
into her vagina, making a push and pull movement.
She shouted in pain and tried to wake her mother up
by pinching her. However, AAA realized that her
mother will not be able to help her as she felt the
bladed weapon Flores had poked at BBB’s neck.8
Flores, for himself, denied raping AAA. He claimed
that BBB was his mother-in-law and not his live-in
partner. He alleged that he and AAA had been
"sweethearts" for four years prior to the incident and
that it was the first time he and AAA had sexual
relations due to his enormous respect for her. He also
claimed that it was AAA who slept beside him and he
was the one awakened by AAA, whom he found on
top of him. He averred that AAA was already 19 years
old at the time of the incident and even produced a
Certification from the Office of the Municipal Civil
Registrar9 of General Luna, Quezon to prove that AAA
was no longer a minor at the time of the sexual
intercourse. He also claimed that he and AAA talked
after this case was filed and they agreed to get married,
but AAA could not withdraw the case for fear of her
mother. Flores further claimed that the reason why
this charge was filed against him was because he
refused to live with BBB, who wanted Flores for
herself.10
On October 13, 2004, the RTC handed down a guilty
verdict against Flores and imposed on him the
supreme penalty of death:
WHEREFORE AND IN VIEW OF ALL THE
FOREGOING, the Court finds accused MONTANO
FLORES guilty beyond reasonable doubt of the crime
of Qualified Rape defined and punished under Article
266-A of the Revised Penal Code as amended by R.A.
8353 and imposes upon him the penalty of DEATH,
and in addition, to pay the amount of Php75,000.00 as
civil indemnity, Php50,000.00 as moral damages and
Php25,000.00 as exemplary damages.11
In its decision, the RTC debunked Flores’ "sweetheart
defense." The RTC said that AAA’s testimony was
frank, candid, and straightforward,12 and AAA was
able to establish that Flores was able to have carnal
knowledge of her, and his guilt for the crime of
rape.13 The RTC further held that AAA’s allegations
were not only corroborated by her own mother’s
testimony, but also by the medico-legal findings of Dr.
Tullas. The RTC found Flores’ imputation of ill motive
on BBB was incredible as no mother would subject her
own daughter to such humiliation and shame, just
because she was shunned by the man she desires. In
sum, the RTC said that all the essential elements of
rape were proven and duly established, and Flores’
blanket denial cannot overcome the categorical
assertions of AAA.14
On intermediate appellate review, the Court of appeals
was faced with the sole issue of whether or not the
RTC erred in sentencing him to death:
LONE ASSIGNMENT OF ERROR
THE TRIAL COURT GRAVELY ERRED IN
IMPOSING UPON THE ACCUSED-APPELLANT
THE SUPREME PENALTY OF DEATH IN VIEW OF
THE FAILURE OF THE PROSECUTION TO PROVE
THE PRIVATE COMPLAINANT’S MINORITY.15
Flores claimed that the RTC erred in sentencing him
to death considering that AAA was already 18 years
old at the time of the alleged rape. Flores averred that
although AAA was stated to be 13 years old in the
Information, AAA was in fact no longer a minor, as
shown in the Certification issued by the Office of the
Municipal Civil Registrar of General Luna, Quezon.
The Court of Appeals agreed with Flores that AAA was
indeed already 18 years old when she was raped.
However, this did not prevent the Court of Appeals
from affirming the imposition of the death penalty as
the rape was committed in full view of AAA’s mother,
hence, under the Revised Penal Code, the death
penalty shall still be imposed. The dispositive portion
of the Court of Appeals’ decision reads:
WHEREFORE, finding no reversible error, the
appealed Decision dated October 13, 2004 of the
Regional Trial Court, Branch 62, Gumaca, Quezon,
finding appellant MONTANO FLORES guilty of the
crime of QUALIFIED RAPE is hereby AFFIRMED in
toto. However, in lieu of the death penalty imposed by
the trial court, appellant is hereby sentenced to suffer
the penalty of RECLUSION PERPETUA, pursuant to
Republic Act No. 9346. With regards to civil
indemnity, the accused is hereby ORDERED TO PAY
the victim the amount of ₱75,000.00 as civil
indemnity.
And in addition, accused is also ORDERED to pay the
victim ₱50,000.00 as moral damages and ₱25,000.00 as
exemplary damages.16
On December 6, 2006, Flores filed his Notice of Appeal
and subsequently filed a Manifestation that he is
adopting the arguments in his Appellant’s Brief in this
appeal.
Flores is now before this Court with the same lone
assignment of error, wherein he questions the
propriety of the imposition of the death penalty upon
him in view of the fact that AAA’s minority was not
conclusively proven by the prosecution.
This Court has made a thorough and exhaustive
review of all the records of this case and has found no
reason to reverse the judgment below.
We agree with Flores that AAA’s age was not proven
with certainty. This Court has held that for minority
to be considered as a qualifying circumstance in the
crime of rape, it must not only be alleged in the
Information, but it must also be established with moral
certainty.17 Noting the divergent rulings on the proof
required to establish the age of the victim in rape cases,
this Court, in People v. Pruna,18 has set out the
following guidelines in appreciating age, either as an
element of the crime or as a qualifying circumstance:
1. The best evidence to prove the age of the
offended party is an original or certified true copy
of the certificate of live birth of such party.
2. In the absence of a certificate of live birth,
similar authentic documents such as baptismal
certificate and school records which show the date
of birth of the victim would suffice to prove age.
3. If the certificate of live birth or authentic
document is shown to have been lost or destroyed
or otherwise unavailable, the testimony, if clear
and credible, of the victim’s mother or a member
of the family either by affinity or consanguinity
who is qualified to testify on matters respecting
pedigree such as the exact age or date of birth of
the offended party pursuant to Section 40, Rule
130 of the Rules on Evidence shall be sufficient
under the following circumstances:
a. If the victim is alleged to be below 3 years of
age and what is sought to be proved is that she
is less than 7 years old;
 b. If the victim is alleged to be below 7 years of
age and what is sought to be proved is that she
is less than 12 years old;
c. If the victim is alleged to be below 12 years
of age and what is sought to be proved is that
she is less than 18 years old.
4. In the absence of a certificate of live birth,
authentic document, or the testimony of the
victim’s mother or relatives concerning the
victim’s age, the complainant’s testimony will
suffice provided that it is expressly and clearly
admitted by the accused.
5. It is the prosecution that has the burden of
proving the age of the offended party. The failure
of the accused to object to the testimonial evidence
regarding age shall not be taken against him.19
In the case at bar, not only did the prosecution fail to
present AAA’s birth certificate, but BBB, the victim’s
mother herself, gave contradictory statements on the
true age of her daughter. At one time she said that
AAA was 13 years old, and yet when asked about the
year of AAA’s birthday, she declared that it was 1982.
AAA herself did not know the exact year she was born.
The Certification from the Municipal Civil
Registrar20 of General Luna, Quezon that both parties
offered as evidence of AAA’s age has no probative
value because it was not a certification as to the true
age of AAA but as to the fact that the records of birth
filed in their archives included those registered from
1930 up to the time the certificate was requested, and
that records for the period of 1930 – June 23, 1994
were razed by fire.
However, as the Court of Appeals correctly ruled,
Flores still cannot escape the penalty of death. Flores
forgot the important fact that aside from AAA’s
minority, the qualifying circumstance that the rape
was committed in full view of AAA’s mother was also
alleged in the Information, to wit:
That on or about the 18th day of June 2001, at
Barangay Payte, Municipality of Pitogo, Province of
Quezon, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, with
lewd designs, armed with a bladed weapon, with force,
threats and intimidation, did then and there willfully,
unlawfully and feloniously have carnal knowledge of
one [AAA], a minor, 13 years of age at the time of the
commission of the offense, against her will.
That the crime of rape was committed with the
qualifying circumstances of victim being under 18
years of age, the accused is her stepfather, being the
common-law spouse of her mother, and that the rape
was committed in full view of the victim’s mother,
[BBB].21
Under Article 266-B of the Revised Penal Code, when
rape is committed in full view of the parent, the
penalty to be imposed is death, to wit:
ART. 266-B. Penalties.- Rape under paragraph 1 of the
next preceding article shall be punished by reclusion
perpetua.
xxxx
The death penalty shall be imposed if the crime of rape
is committed with any of the following
aggravating/qualifying circumstances:
1) When the victim is under eighteen (18) years of
age and the offender is a parent, ascendant, step-
parent, guardian, relative by consanguinity or
affinity within the third civil degree, or the
common-law spouse of the parent of the victim;
2) When the victim is under the custody of the
police or military authorities or any law
enforcement or penal institution;
3) When the rape is committed in full view of the
spouse, parent, any of the children or other
relatives within the third civil degree of
consanguinity.
4) When the victim is a religious engaged in
legitimate religious vocation or calling and is
personally known to be such by the offender
before or at the time of the commission of the
crime;
5) When the victim is a child below seven (7) years
old;
6) When the offender knows that he is afflicted
with Human Immuno-Deficiency Virus
(HIV)/Acquired Immune Deficiency Syndrome
(AIDS) or any other sexually transmissible disease
and the virus or disease is transmitted to the
victim;
7) When committed by any member of the Armed
Forces of the Philippines or para-military units
thereof or the Philippine National Police or any
law enforcement agency or penal institution,
when the offender took advantage of his position
to facilitate the commission of the crime;
8) When by reason or on the occasion of the rape,
the victim suffered permanent physical mutilation
or disability;
9) When the offender knew of the pregnancy of
the offended party at the time of the commission
of the crime and;
 10) When the offender knew of the mental
disability, emotional disorder and/or physical
handicap of the offended party at the time of the
commission of the crime. (Emphases ours.)
Both the RTC and the Court of Appeals found that the
prosecution was able to sufficiently prove the
qualifying circumstance that Flores raped AAA in full
view of her mother. This Court has found the
testimonies of both AAA and BBB to be candid, frank,
and genuine. Despite the fact that both daughter and
mother did not know how to read nor write, they were
able to narrate to the court their harrowing experience
with the utmost openness, candor, and
sincerity.lavvphil AAA’s mother recounted the
painful details of that night in a straightforward
manner, to wit:
Q On that particular date and time, what were you
doing then?
A While Montano was doing that to the victim, I
was lying and I was being pinched by my daughter,
Mam.
INTERPRETER:
The witness demonstrating gesture on her neck.
PROSECUTOR FLORIDO:
Q Now, when you were awakened, when your
daughter was pinching your neck, what did you
see?
A He was on top of her, Mam.
Q Who was on top?
A Montano, Mam.
Q And who was under?
A [AAA], Mam.
Q And what was happening when this Montano
was on top of [AAA]?
A My daughter was crying, Mam.
Q And while this Montano was on top of [AAA],
what was Montano actually doing?
A Iniiyot po niya. He was having sexual
intercourse with her.
Q And during the time that he was doing sexual
intercourse with her, your daughter was crying?
A Yes, Mam.
Q So, when you have seen those incident, your
live-in-partner was having sexual intercourse with
your daughter while your daughter was crying,
what did you do, if any?
A I let, I just allowed them. "Nagpabaya na
lamang."
Q Why did you say you let them allow?
A Because he was poking a weapon on me, Mam.
Q Who was poking a weapon? On you?
A He, Mam.
Q Are you referring to Montano?
A Yes, Mam.
 Q What kind of weapon was that?
A The one used in scalling fish, Mam.
Q Was that a sharp object?
A Yes, Mam.
Q Do I get from you, while Montano Flores was
having sexual intercourse with your daughter,
your daughter was crying and this Montano Flores
was poking a weapon a sharp instrument on you?
A Yes, Mam.22
It is indisputable that when Flores raped AAA, he
committed such act in full view of BBB, AAA’s
mother. Hence, the RTC was correct in imposing upon
Flores the penalty of death as it found Flores guilty
beyond reasonable doubt of the crime of qualified
rape. However, although under the Death Penalty
Law,23 the crime of qualified rape is punishable by
death, Republic Act No. 9346,24 which took effect on
June 24, 2006, prohibits the imposition of the death
penalty. Under this Act, the proper penalty to be
imposed upon Flores in lieu of the death penalty is
reclusion perpetua,25 without eligibility for parole.26
Civil indemnity ex delicto is mandatory upon a finding
of the fact of rape.27 Moral damages are automatically
awarded without need of further proof, because it is
assumed that a rape victim has actually suffered moral
injuries entitling the victim to such award.28 Pursuant
to prevailing jurisprudence,29 the amount of Fifty
Thousand Pesos (₱50,000.00) as moral damages must
be increased to Seventy-Five Thousand Pesos
(₱75,000.00), and exemplary damages increased from
Twenty-Five Thousand Pesos (₱25,000.00) to Thirty
Thousand Pesos (₱30,000.00)
WHEREFORE, premises considered, the decision of
the Court of Appeals in CA-G.R. CR No. 00502, is
hereby AFFIRMED with MODIFICATION. Accused-
appellant Montano Flores y Paras is found GUILTY
beyond reasonable doubt of the crime of QUALIFIED
RAPE, and sentenced to reclusion perpetua, in lieu of
death, without eligibility for parole. He is ordered to
pay the victim AAA Seventy-Five Thousand Pesos
(₱75,000.00) as civil indemnity, Seventy-Five
Thousand Pesos (₱75,000.00) as moral damages and
Thirty Thousand Pesos (₱30,000.00) as exemplary
damages, ALL with interest at the rate of 6% per
annum from the date of finality of this judgment. No
costs.
SO ORDERED.
TERESITA J. LEONARDO-DE CASTRO
Associate Justice
WE CONCUR:
RENATO C. CORONA
Chief Justice
Chairperson
PRESBITERO J. MARIANO C. DEL
VELASCO, JR. CASTILLO
Associate Justice Associate Justice
JOSE PORTUGAL PEREZ
Associate Justice
CERTIFICATION
Pursuant to Section 13, Article VIII of the
Constitution, I certify that the conclusions in the
above Decision had been reached in consultation
before the case was assigned to the writer of the
opinion of the Court’s Division.
RENATO C. CORONA
Chief Justice
2. People vs. Eminiano Barcela, GR NO. 179948, Dec.
8, 2010

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 179948 December 8, 2010
PEOPLE OF THE PHILIPPINES, Appellee,
vs.
EMINIANO BARCELA y MEDINA, Appellant.
DECISION
DEL CASTILLO, J.:
Before us is another case of a girl "snatched from the
cradle of innocence"1 by her own father for the sole
purpose of satisfying his despicable and deviant sexual
behavior.
Factual Antecedents
For review is the Decision2 dated March 17, 2005 of
the Court of Appeals (CA) in CA-G.R. CR-HC No.
01561 that affirmed with modification the
Decision3 of the Regional Trial Court (RTC) of
Calabanga, Camarines Sur, Branch 63, in Criminal
Case No. 04-911, finding appellant guilty beyond
reasonable doubt of the crime of Qualified Rape
against "AAA."4 The Information5 contained the
following accusatory allegations:
That on or about the 4th day of January, 2004 at
around 9:00 in the evening at Barangay x x x,
Municipality of Calabanga, Province of Camarines
Sur, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused while
armed with an ice pick, with lewd designs by means of
force and intimidation, did then and there willfully,
unlawfully and feloniously succeed having carnal
knowledge [of] one "AAA," an 11 year old minor, and
the accused’s daughter, which act of the accused
debase[s], degrade[s] and demeans the intrinsic worth
and dignity of the child as a human being and
prejudicial to the child’s development, to her damage
and prejudice.
ACTS CONTRARY TO LAW.
Appellant pleaded not guilty to the crime charged
during arraignment. After the termination of the pre-
trial conference, trial ensued.
The Version of the Prosecution
On January 4, 2004, "AAA," then 11 years old, was at
the residence of her parents in Calabanga, Camarines
Sur, tending to her younger siblings. Her father, the
appellant, arrived at around five o’clock in the
afternoon from the Bicol Medical Center, where his
pregnant wife and mother of "AAA" was left behind to
take care of their two children who were confined
thereat. After eating dinner prepared by appellant,
"AAA" and her siblings went to sleep at around six to
seven o’clock in the evening while appellant attended
to his youngest child who was suffering from an
asthma attack.
At around nine o’clock in the evening, "AAA" was
awakened due to a pain in her vagina. She then noticed
that she was naked with her hands tied above her
head. Her feet were spread apart and tied to the
bamboo poles of their house. While in this exposed
position, appellant was on top of her, inserting his
penis into her vagina and making a push and pull
movement. While she was being violated by appellant,
"AAA" cried in pain. Thereafter, appellant untied her,
used a lighter to illuminate himself and the ice pick
poked at her, and told her to go back to sleep.
The following morning, "AAA" just lay in bed and
continued crying. Appellant told her to wake up and
wash her bloodstained panty. She got up, but instead
of obeying appellant, she burned said underwear
together with her mat to rid herself of any reminder
of the horrible fate she suffered in the hands of her
father.
"AAA" told her mother about the appellant’s beastly
sexual aggression on January 21, 2004. The following
day, January 22, 2004, the mother of "AAA" took her
to the Bicol Medical Center for a medical examination
conducted by Dr. Augusto M. Quilon, Jr. (Dr. Quilon)
who issued a medical certificate6 confirming that
"AAA" had old hymenal lacerations at two and seven
o’clock positions.
When asked to clarify, Dr. Quilon explained that it
takes about two weeks for a laceration to heal. In this
case, since the rape took place on January 4, 2004, the
lacerations were already considered old and healed by
the time "AAA" was examined on January 22, 2004, or
17 days after the rape.7
The Version of the Appellant
Appellant denied raping his daughter, "AAA." He
claimed that on January 4, 2004, at around nine o’clock
in the evening, he was in his home with "AAA" and
three more of his children. He had just arrived after
staying for three days in a hospital where his wife
remained to take care of their two children confined
thereat. While in his house, he attended to the needs
of his youngest child who was suffering from an
asthma attack. "AAA" and her other siblings slept side
by side at around midnight. However, his child who
was sick with asthma slept at around two o’clock in
the morning. Thereafter, he slept beside his three
children and woke up at seven o’clock in the morning.
His children, including "AAA," were still in the house.
Ruling of the Regional Trial Court
On August 13, 2005, the trial court rendered its
Decision, the dispositive portion of which reads as
follows:
WHEREFORE, in view of the foregoing, the
prosecution having proven the guilt of the accused
EMINIANO BARCELA y MEDINA beyond
reasonable doubt, he is found guilty of the crime of
qualified rape as charged in the information. He is
hereby sentenced to suffer the penalty of death. He is
also ordered to pay the private complainant "AAA" the
amount of ₱75,000.00 as civil indemnity; ₱50,000.00
as moral damages; ₱25,000.00 as exemplary damages.
He is likewise meted the accessory penalties under
Article 40 of the Revised Penal Code.
No pronouncement as to cost.
SO ORDERED.8
Ruling of the Court of Appeals
On April 30, 2007, the CA promulgated its Decision
that affirmed with modification the trial court’s
decision. Thus:
WHEREFORE, premises considered, the assailed
August 13, 2005 Decision of the RTC of Calabanga,
Camarines Sur, Branch 63, in Criminal Case No.
RTC‘04-911, convicting accused-appellant BARCELA
of incestuous rape, is hereby MODIFIED in that: (1)
the penalty imposed which should be reduced from
death penalty to reclusion perpetua pursuant to
Republic Act No. 9346 and (2) the amount of moral
damages should be increased from ₱50,000.00 to
₱75,000.00 to conform with current jurisprudence.
Pursuant to Section 13 (c), Rule 124 of the 2000 Rules
of Criminal Procedure as amended by A.M. No. 00-5-
03-SC dated September 28, 2004, which became
effective on October 15, 2004, this judgment of the
Court of Appeals may be appealed to the Supreme
Court by notice of appeal filed with the Clerk of Court
of the Court of Appeals.
SO ORDERED.9
The Assignment of Error
Still insisting on his innocence, appellant filed an
appeal and adopted the same lone assignment of error
he advanced before the CA that –
THE TRIAL COURT GRAVELY ERRED IN
CONVICTING THE ACCUSED-APPELLANT WHEN
HIS GUILT HAS NOT BEEN PROVEN BEYOND
REASONABLE DOUBT.10
Our Ruling
The appeal is unmeritorious.
"In reviewing rape cases, the Court is guided by the
four well-established principles x x x: (1) an accusation
for rape can be made with facility; (2) it is difficult to
prove but more difficult for the person accused,
though innocent, to disprove; (3) [considering] the
intrinsic nature of the crime of rape where only two
persons are usually involved, the testimony of the
complainant must be scrutinized with extreme
caution; and, (4) the evidence for the prosecution must
stand or fall on its own merits and cannot be allowed
to draw strength from the weakness of the evidence
for the defense."11 Thus, "the primordial consideration
in a determination concerning the crime of rape is the
credibility of the private complainant’s testimony."12
In this case, the trial court gave complete credence to
"AAA’s" testimony. She positively identified the
appellant as her sexual aggressor and never wavered in
her declaration on the details of the horrible
experience she suffered in the hands of her father. On
January 4, 2004, she was just 11 years old when her
father undressed her, and tied her hands and feet
while she was asleep. He was already having carnal
knowledge of her when she was awakened due to the
excruciating pain caused by the penetration of her
own father’s penis into her vagina. This incident
occurred in the evening in the privacy of their family
home. In a plain and straightforward manner, she
recounted her harrowing ordeal as follows:
Q. You said you were sleeping then. Can you tell us
what time x x x you [woke] up x x x that night?
A. At around 9:00 o’clock or 10:00 o’clock.
Q. Why [were you a]wakened [at] that hour?
A. Because I felt pain [in] my vagina.
Q. After you were awakened, what did you observe on
your person?
A. I was tied and already naked.
Q. When you said you were tied, kindly tell us which
part[s] of your body x x x were tied?
A. My two hands and my feet.
INTERPRETER:
The witness is illustrating how her two hands were
tied by placing her two hands above her head.
Q. And when you [say] that you were [in] that
situation, do you remember who was x x x present
then while you were [in] that position?
A. Eminiano Barcela.
Q. And what was the action taken by Eminiano
Barcela?
A. He was [doing] push and pull movement[s] on top
of me.
xxxx
PROS. OLIVEROS:
Okay. You said, your hands were tied, what else did
you observe on your person?
A. I was also naked and my feet were also tied.
Q. And how [were] your feet x x x tied?
A. My two feet were tied apart from each other.
Q. When you saw Eminiano Barcela for the first time,
what did you observe x x x him [doing]?
A. He was [doing] push and pull movement[s] on top
of me.
Q. Then, what did you feel while he was in that
position?
A. My vagina was in pain.
Q. And what action did you take if any while
Eminiano Barcela was on top of you making push and
pull movement[s]?
A. I was crying.
xxxx
COURT:
Sustained. Why is it that your vagina is in pain?
A. Because his penis was inserted [into] my vagina.
PROS. OLIVEROS:
When you said your father Eminiano Barcela was
[doing] push and pull movement, what else did he do?
A. After that he untied me and then poked an icepick
[at] me and told me to go to sleep.13
"[T]he findings of the trial court as to the credibility of
witnesses [will not be disturbed on appeal] considering
that [the trial court] is in a better position to observe
their candor and [conduct] on the witness stand.
Evaluation of the credibility of witnesses and their
testimonies is a matter best undertaken by the trial
court, [due to] its unique opportunity to observe the
witnesses and their demeanor, conduct, and attitude,
especially under cross-examination. Its assessment is
respected unless certain facts of substance and value
were overlooked which, if considered, might affect the
outcome of the case."14
Moreover, "[n]o sane girl would concoct a story of
defloration, allow an examination of her private parts
and [thereafter subject herself] to public trial or
ridicule if she has not in truth been a victim of rape
and [is] impelled to seek justice for the wrong
[committed against her]. It is highly [improbable that
a girl would] fabricate a story that would expose
herself and her family to a lifetime of dishonor,
especially when her charges would mean the death or
the long-term imprisonment of her father. Youth and
immaturity are generally badges of truth and
sincerity."15Considering that the victim in this case
underwent a harrowing experience and exposed
herself to the rigors of public trial, it is unlikely that
she would devise false accusations against appellant,
who is her father.
Further, the testimony of "AAA" was corroborated by
the medical findings of Dr. Quilon, the physician who
conducted the medico-legal examination on her. Dr.
Quilon, declared that he found healed hymenal
lacerations at the two and seven o’clock notches on the
private part of "AAA," which could have been caused
by the penetration of a man’s penis. He also disclosed
that the hymen of "AAA" was no longer intact; she was
no longer a virgin. When the testimony of a rape
victim is consistent with the medical findings,
sufficient basis exists to warrant a conclusion that the
essential requisite of carnal knowledge has been
established.16 The testimony of Dr. Quilon, therefore,
strengthens "AAA’s" claim of rape against appellant.
In an attempt to exonerate himself, appellant impugns
the credibility of "AAA." He avers that the testimony
that he tied her hands and feet while she was asleep to
facilitate the consummation of rape is unbelievable
considering that their house is so small and several
people were sleeping beside her on the same mat. He
also claims that "AAA" failed to resist the alleged
sexual aggression. Moreover, he casts doubt on the
testimony of "AAA" that he ordered her to wash her
bloodstained panty. He posits that "AAA" could not
have stained her panty with blood since she testified
that she was already naked at the time he was allegedly
raping her and there is no proof that she put on her
clothes after he satisfied his lust.17
Appellant’s assertions fail to impress. The testimony of
"AAA" that appellant tied her hands and feet to
consummate the rape in spite of the fact that their
house was small and people were sleeping beside her
is not incredible. It is axiomatic that appellant tied the
hands and feet of "AAA" to ensure the commission of
rape and to eliminate any resistance that she might
use. Restraining "AAA" was also intended to limit her
movement so that her siblings sleeping beside her
would not be awakened and witness the crime.
Appellant’s contention that rape could not be
committed in a small house where several people were
sleeping does not deserve consideration. "Lust is no
respecter of time and place. x x x [R]ape can be
committed even inside a house where there are other
occupants or where other members of the family are
also sleeping. Thus, it is an accepted rule in criminal
law that rape may be committed even when the rapist
and the victim are not alone. Fact is, rape may even be
committed in the same room x x x or in a small room
where other family members also sleep,"18as in this
case.
Appellant’s allegation that "AAA" failed to resist the
sexual assault is untenable. Obviously, "AAA" could
not be expected to offer resistance to the sexual
aggression of appellant since her hands and feet were
tied. Even if it were true that "AAA" did not seriously
resist appellant’s offense, her failure cannot be
considered to diminish the credibility of her
testimony. "It must be stressed that the resistance of
the victim is not an element of the crime [of rape],"
and "the law does not impose [on the prosecution] the
burden of [establishing the same]."19 "As long as the
force or intimidation is present, whether it was more
or less irresistible is beside the point."20
In addition, "in the incestuous rape of a minor, actual
force or intimidation need not be [proven]. x x x The
moral and physical [domination] of the father is
sufficient to [intimidate] the victim into submission to
his [carnal] desires. x x x The [rapist], by his
overpowering and overbearing moral influence, can
easily consummate his bestial lust with impunity.
[Consequently], proof of force and violence is
unnecessary, unlike when the accused is not an
ascendant or a blood relative of the victim."21
Whether the bloodstained panty actually existed will
not adversely affect the credibility of "AAA" as
appellant wants to make it appear. The fact that "AAA"
did not declare on the witness stand that she put on
her clothes after the rape does not make her testimony
inconsistent. Neither does it make the existence of said
bloodstained panty improbable. What is essential is
that "AAA" categorically testified that her father asked
her to wash said panty the morning after the incident
because it had blood on it. However, she burned it
along with her mat since it was a reminder of her
horrible fate.
Furthermore, the alleged improbability is an
inconsequential matter that does not bear upon the
elements of the crime of rape. The decisive factor in
the prosecution of rape is whether the commission of
the crime has been sufficiently proven. "For a
discrepancy or inconsistency in the testimony of a
witness to serve as basis for acquittal, it must refer to
the significant facts [indispensable] to the guilt or
innocence of the [appellant] for the crime
charged."22As the inconsistencies alleged by appellant
had nothing to do with the elements of the crime of
rape, they cannot be used as grounds for his acquittal.23
Appellant’s defense of denial was properly rejected.
All that is on record is the bare and uncorroborated
protestations of appellant that he did not rape his
minor daughter, "AAA." He did not proffer evidence
to substantiate his averments. "[D]enial is inherently a
weak defense. To be believed, it must be [supported]
by strong evidence of non-culpability; otherwise, such
denial is purely self-serving and has practically no
evidentiary value"24 vis a vis the positive declaration of
a credible witness. "Between the positive assertions of
the [victim] and the negative averments of [appellant],
the former indisputably deserve more credence and
are entitled to greater evidentiary weight."25 Thus, the
positive identification made by "AAA" of appellant as
the person who inserted his penis into her vagina
plainly prevails over his denial.1avvphi1
Given the foregoing circumstances, we find no cogent
reason to deviate from the findings and conclusions of
the trial court, as affirmed by the CA. The record in
this case fully substantiates the incident of rape
suffered by "AAA" in the hands of appellant. The
prosecution sufficiently proved the guilt of appellant
beyond reasonable doubt. The evaluation of the
testimony of "AAA" has been appreciated properly and
the evidence is overwhelming to convict appellant of
having carnal knowledge of her.
The Proper Penalty
The rape of "AAA" was committed on January 4, 2004.
Accordingly, the provisions of Republic Act (RA) No.
8353,26which is the law in effect when the crime was
committed, shall apply.
In this case, the element of carnal knowledge was
proven by the testimony of the victim. "AAA’s"
minority was established by the presentation of her
Certificate of Live Birth27 showing that she was born
on April 3, 1992. She was only 11 years old when the
rape was committed on January 4, 2004. Notably, the
appellant admitted that he is the father of "AAA"
during the pre-trial conference and the trial of this
case. Clearly, the minority of the victim and her filial
relationship to the appellant have been alleged in the
Information and duly proven during trial. "The
presence of the foregoing qualifying circumstance[s]
raised the crime of Statutory Rape to Qualified Rape.
Simply stated, Qualified Rape is Statutory Rape in its
qualified form."28
As a result, the trial court’s imposition of the penalty
of death on appellant was justified. However, with the
passage of RA 9346 entitled "An Act Prohibiting The
Imposition Of The Death Penalty In The Philippines,"
the penalty, as correctly imposed by the Court of
Appeals, should be reclusion perpetua.29 Pursuant to
the same law, the appellant shall not be eligible for
parole under Act No. 4103, otherwise known as the
Indeterminate Sentence Law.30
The Damages
In line with prevailing jurisprudence, "AAA" is
entitled to an award of ₱75,000.00 as civil indemnity,
another ₱75,000.00 as moral damages and ₱30,000.00
as exemplary damages.31 The award of civil indemnity,
which is in the nature of actual or compensatory
damages, is mandatory upon conviction.32 On the
other hand, moral damages is awarded without need
of pleading or proving their basis.33 Due to the
presence of the aggravating/qualifying circumstances
of minority and the relationship of "AAA" to
appellant, both of which were alleged in the
Information and proven during trial, the award of
exemplary damages is in order.
Thus, the CA correctly awarded "AAA" civil
indemnity in the amount of ₱75,000.00, and another
₱75,000.00 as moral damages. The award of exemplary
damages must however be increased from ₱25,000.00
to ₱30,000.00 in line with prevailing jurisprudence.34
WHEREFORE, the Decision of the Court of Appeals
in CA-G.R. CR-HC No. 01561, which affirmed with
modification the Decision of the Regional Trial Court
of Calabanga, Camarines Sur, Branch 63, finding
appellant Eminiano Barcela y Medina guilty beyond
reasonable doubt of committing the crime of qualified
rape is AFFIRMED with modifications that the
amount of exemplary damages is increased to
₱30,000.00 and that appellant is not legible for parole.
SO ORDERED.
MARIANO C. DEL CASTILLO
Associate Justice
WE CONCUR:
RENATO C. CORONA
Chief Justice>
Chairperson
TERESITA J.
LEONARDO-DE ROBERTO A. ABAD*
CASTRO Associate Justice
Associate Justice
JOSE PORTUGAL PEREZ
Associate Justice
CERTIFICATION
Pursuant to Section 13, Article VIII of the
Constitution, it is hereby certified that the conclusions
in the above Decision had been reached in
consultation before the case was assigned to the writer
of the opinion of the Court’s Division.
RENATO C. CORONA
Chief Justice
3. People vs. Arni Macafe Y Nabong, GR No. 185616,
Nov. 24, 2010

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 185616 November 24, 2010
THE PEOPLE OF THE PHILIPPINES, Appellee,
vs.
ARNEL MACAFE y NABONG, Appellant.
DECISION
BRION, J.:
This is an appeal from the decision,1 dated May 26,
2008, of the Court of Appeals (CA) in CA-G.R. CR-HC
No. 00277, affirming with modification the March 10,
1999 decision of the Regional Trial Court (RTC),
Branch 16, Zamboanga City. The RTC decision2 found
appellant Arnel Macafe y Nabong guilty beyond
reasonable doubt of three (3) counts of rape and meted
him the death penalty for each count.
BACKGROUND FACTS
The records show that AAA3 is the daughter of BBB
and CCC. After CCC died, BBB married the appellant
in 1994; they lived together in Parang, Marikina
together with BBB’s children from her first
marriage.4 In August 1995, the appellant and BBB,
together with AAA and her sister, DDD, went to
Zamboanga City and stayed at the house of BBB’s older
brother, EEE. BBB’s three other children were already
in Zamboanga City at that time.5 In May 1996, BBB
went to Israel to work as a caregiver; she left her five
children under the appellant’s care.
1st rape
At around 10:00 a.m. of September 10, 1997, AAA was
sitting alone on the sofa located at the sala of EEE’s
house, when the appellant approached her and told
her to lie down. When AAA did as ordered, the
appellant pulled down her shorts and panty. AAA
resisted but the appellant succeeded in removing
them. The appellant spread AAA’s legs apart, and went
on top of her. The appellant removed his shorts and
briefs, and inserted his penis in AAA’s private parts.
AAA felt pain in her private parts. She tried to push
the appellant but was unsuccessful. Afterwards, she
felt a warm sticky substance coming from the
appellant’s penis. The appellant told her to wash her
private parts in the bathroom. Thereafter, the
appellant left. AAA saw blood in her private parts
when she washed them.6
2nd rape
On September 15, 1997, the appellant instructed AAA
not to attend her classes so that he will have a
companion in the house. At around 11:00 a.m., AAA
was at the balcony of the house when the appellant
ordered her to go to the bodega. When AAA arrived
at the bodega, the appellant told her to lie down on the
blanket on the floor. When AAA did as ordered, the
appellant removed her shorts and panty. AAA resisted,
but the appellant tied her both hands with a shoelace.
Afterwards, the appellant spread AAA’s legs apart. The
appellant then removed his shorts and briefs, went on
top of AAA, and inserted his penis in her vagina. AAA
felt pain in her private parts. Thereafter, she noticed
blood and a sticky substance coming out of her
vagina.7
3rd rape
On September 18, 1997, the appellant told AAA not to
go to school. AAA followed the appellant’s order
because she was afraid that he would whip her if she
disobeyed. In the afternoon and while AAA was
sitting at the balcony, the appellant ordered AAA to
go to the bodega. AAA went there as instructed, and
on her arrival, the appellant ordered her to lie down
on the blanket on the floor. AAA refused, but the
appellant slapped her. When AAA laid on the blanket,
the appellant removed her shorts and panty, and then
spread her legs apart. The appellant then removed his
pants and briefs, went on top of AAA, and inserted his
penis in her vagina. AAA felt pain in her private parts;
she also felt "something warm" coming from the
appellant’s penis. She noticed blood coming from her
vagina when she washed it afterwards.8
On all three (3) occasions, the appellant threatened to
kill AAA if she revealed the incident to anyone.9
The records likewise reveal that on September 30,
1997, the appellant whipped AAA on the different
parts of her body because she came home late.10 AAA
reported the whipping incident to her teacher, Grace
Alvarez. When Grace saw the contusions on AAA’s
body, she advised AAA to leave their house; she also
referred the matter to Esteban "Steve" Pasol, Jr., the
father of one of AAA’s classmates.11 AAA told Esteban
that she ran away from home because the appellant
whipped her. Esteban reported the incident to a
barangay official and to the ABS CBN radio station. On
the next day, AAA was interviewed by an ABS CBN
radio personnel. Esteban, thereafter, brought AAA to
the Department of Social Welfare and Development
and then to the Zamboanga Medical Center for a
medical examination.12
On November 13, 1997, AAA revealed to Grace that
she had been raped, although she did not immediately
name her rapist. AAA disclosed the rape because she
"could not take it anymore"; and because she learned
that the appellant also raped her younger
sister.13 Grace called AAA’s grandparents, and
requested them to go to the school. On their arrival,
AAA told them that she had been raped by the
appellant.14 Immediately after, they brought AAA to
the Zamboanga Medical Center.15
Dr. Ma. Regina Bucoy Vasquez, the resident physician
of the Zamboanga Medical Center, conducted a
physical examination on AAA on November 14,
1997,16 and saw incomplete and healed multiple
lacerations in her hymen. According to Dr. Vasquez,
the multiple lacerations on AAA’s private parts imply
that she has had previous sexual contacts.17
AAA was brought to the Tetuan Police Station, where
she gave her statement to the police.18 Thereafter, the
prosecution filed three (3) complaints for rape, before
the RTC, against the appellant, docketed as Criminal
Case Nos. 15124-26.19
The appellant denied the allegations against him, and
claimed that AAA’s aunt, FFF, merely instigated AAA
to say that she had been raped by him. He explained
that FFF was mad at him for his failure to give the
money sent by BBB for her (FFF). The appellant
further added that FFF wanted to put him in jail so that
she (FFF) would manage the money BBB sent. The
appellant admitted that he whipped AAA on
September 30, 1997 because she came home late.20
THE RTC RULING
The RTC convicted the appellant of three (3) counts of
rape under Article 335 of the Revised Penal Code, and
sentenced him to suffer the death penalty for each
count. The RTC also ordered the appellant to pay the
victim ₱50,000.00, as civil indemnity, and ₱25,000.00,
as exemplary damages, for each count of rape.
The RTC found AAA’s testimony to be clear,
straightforward, credible, convincing, and free from
any contradiction. It, likewise, found no ill motive on
AAA’s part to falsely testify against her own
stepfather. Furthermore, AAA’s testimony was
supported by the medical findings of Dr. Vasquez, who
found incomplete healed lacerations on the victim’s
hymen.
The RTC also held that AAA’s one (1) month delay in
reporting the rapes did not impair her credibility. The
RTC explained that it is not uncommon for young girls
to conceal the assaults on their virtue due to the
threats on their lives, more so when the rapist is the
victim’s own stepfather living with her. The RTC
finally ruled that the appellant’s denial was not
supported by any other evidence.
THE CA DECISION
The CA, in its decision dated May 26, 2008, affirmed
the RTC decision with the modification that the death
penalty be reduced to reclusion perpetua for each
count of rape, as the complaints failed to allege the
appellant’s relationship to the victim. The CA also
ordered the appellant to further pay the victim
₱50,000.00, as moral damages, for each count.
The CA found AAA’s testimony credible and
convincing, more so since it was supported by the
medical findings of Dr. Vasquez. The CA also
disregarded the appellant’s denial and imputation of
ill-motive on the part of FFF, for lack of evidence to
support these defenses.
THE ISSUE
In his brief, the appellant maintains that the
prosecution failed to prove his guilt beyond reasonable
doubt. He claims that AAA was not a credible witness,
and avers that she was merely influenced by FFF to
make false accusations against him.
THE COURT’S RULING
After due consideration, we dismiss the appeal but
increase the awarded exemplary damages from
₱25,000.00 to ₱30,000.00 for each count of rape.
Sufficiency of Prosecution Evidence
Rape is defined and penalized under Article 33521 of
the Revised Penal Code, as amended, which provides:
ARTICLE 335. When and how rape is committed. –
Rape is committed by having carnal knowledge of a
woman under any of the following circumstances.
1. By using force or intimidation;
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.
Rape under paragraph 3 of this article is termed
statutory rape as it departs from the usual modes of
committing rape. What the law punishes in statutory
rape is carnal knowledge of a woman below twelve
years old. Hence, force and intimidation are
immaterial; the only subject of inquiry is the age of the
woman and whether carnal knowledge took place.
The law presumes that the victim does not and cannot
have a will of her own on account of her tender years;
the child’s consent is immaterial because of her
presumed incapacity to discern evil from good.22
In her testimony, AAA positively identified the
appellant as the one who raped her on three occasions,
namely, September 10, 1997, September 15, 1997, and
September 18, 1997. Her testimonies were clear and
straightforward; she was consistent in her recollection
of the details of her defloration. In addition, her
testimonies were corroborated by the medical findings
of Dr. Vasquez.
This Court has held time and again that testimonies of
rape victims who are young and immature deserve full
credence, considering that no young woman,
especially of tender age, would concoct a story of
defloration, allow an examination of her private parts,
and, thereafter, pervert herself by subjecting herself to
a public trial, if she was not motivated solely by the
desire to obtain justice for the wrong committed
against her. Youth and immaturity are generally
badges of truth. It is highly improbable that a girl of
tender years, one not yet exposed to the ways of the
world, would impute to any man a crime as serious as
rape if what she claims is not true.23
The prosecution, thus, positively established the
elements of statutory rape under Article 335,
paragraph 3 of the Revised Penal Code. First, the
appellant succeeded in having carnal knowledge of
AAA on three occasions on September 1997. Second,
AAA was below twelve years of age at the time of the
incidents, as evidenced by her birth certificate and
testimony showing that she was born on June 1, 1986.
The Appellant’s Defenses
The appellant denied having raped AAA, and insisted
that AAA only filed the cases at the instigation of FFF,
who was mad at him for failing to remit the money
that BBB sent.
The appellant’s defense of denial must crumble in light
of AAA’s positive and specific testimony. We have
consistently held that the identification of the accused,
when categorical and consistent, and without any
showing of ill motive on the part of the eyewitness
testifying, should prevail over mere denial. In the
context of this case, the appellant’s denial,
unsupported by any other evidence, cannot overcome
the victim’s positive declaration on his identity and
involvement in the crime attributed to him.
We also find unmeritorious the appellant’s claim that
FFF merely instigated AAA to file the complaints
against him. We stress that it was not FFF but AAA’s
grandparents who decided to file the case against the
appellant. At any rate, the appellant’s claim that FFF
convinced AAA to file fabricated rape charges because
the appellant failed to give the money due her is too
flimsy a reason for an aunt to subject her niece to
humiliation and scandal.
The Proper Penalty and Indemnity
Under the second part of Article 335 of the Revised
Penal Code, the death penalty shall be imposed 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.
As shown by her Certificate of Live Birth,24 AAA was
born on June 1, 1986; AAA also testified to this
fact.25 Clearly, AAA was only eleven years old when
the three rapes happened in September 1997.
Nonetheless, the CA was correct in reducing the death
penalty to reclusion perpetua because the
circumstance of relationship was not alleged in the
complaints. None of the complaints alleged that the
appellant was the stepfather of AAA.1avvphi1
We affirm the awards of ₱50,000.00 as civil indemnity
and moral damages, respectively, for each count of
rape, as they are in accord with prevailing
jurisprudence. Civil indemnity is awarded on the
finding that rape was committed. Similarly, moral
damages are awarded to rape complainants without
the need of a pleading or proof of their basis; it is
assumed that a rape complainant actually suffered
moral injuries, entitling her to this award.26
However, we increase the amount of the awarded
exemplary damages from ₱25,000.00 to ₱30,000.00
pursuant to established jurisprudence. The award of
exemplary damages is justified, under Article 2229 of
the Civil Code, to set a public example and serve as
deterrent against elders who abuse and corrupt the
youth.27
WHEREFORE, in light of all the foregoing, we
AFFIRM the May 26, 2008 Decision of the Court of
Appeals in CA-G.R. CR-HC No. 00277, with the
following MODIFICATIONS:
(a) appellant Arnel Macafe y Nabong is hereby
found GUILTY beyond reasonable doubt of three
(3) counts of STATUTORY RAPE, as defined and
penalized under Article 335 of the Revised Penal
Code; and
(b) the amount of the awarded exemplary damages
is INCREASED from ₱25,000.00 to ₱30,000.00.
SO ORDERED.
ARTURO D. BRION
Associate Justice
WE CONCUR:
CONCHITA CARPIO MORALES
Associate Justice
MARTIN S.
LUCAS P. BERSAMIN
VILLARAMA, JR.
Associate Justice
Associate Justice
MARIA LOURDES P.A. SERENO
Associate Justice
ATTESTATION
I attest that the conclusions in the above Decision had
been reached in consultation before the case was
assigned to the writer of the opinion of the Court’s
Division.
CONCHITA CARPIO MORALES
Associate Justice
Chairperson
CERTIFICATION
Pursuant to Section 13, Article VIII of the
Constitution, and the Division Chairperson’s
Attestation, it is hereby certified that the conclusions
in the above Decision had been reached in
consultation before the case was assigned to the writer
of the opinion of the Court’s Division.
RENATO C. CORONA
Chief Justice
4. Sweetheart Theory: People vs. Arsenio Cabanilla, GR
No. 185839, Nov. 17, 2010

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 185839 November 17, 2010
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs.
ARSENIO CABANILLA, Accused-Appellant.
DECISION
MENDOZA, J.:
This is an appeal from the October 11, 2007
Decision1 of the Court of Appeals (CA) in CA-G.R. CR
No. 01430, which affirmed with modification2 the
August 17, 2000 Decision3 of the Regional Trial Court
of Narvacan, Ilocos Sur, Branch 72 (RTC), in Criminal
Case No. 463-N, finding the accused guilty beyond
reasonable doubt of the crime of Rape committed
against AAA.4
Accused Arsenio Cabanilla (Cabanilla) was charged
with the crime of Rape in an Information5 dated June
20, 1979 which alleges as follows:
That on or about the 6th day of March, 1979, in the
Municipality of Narvacan, province of Ilocos Sur,
Philippines and within the jurisdiction of this
Honorable Court, the above-named accused Arsenio
Cabanilla, did then and there willfully, unlawfully and
feloniously have carnal knowledge of one, AAA, by
means of force and violence and against the latter’s
will and consent.
Contrary to law.
Version of the Prosecution
The prosecution presented private complainant
AAA,6 Dr. Virgilio Bañez (Dr. Bañez),7 Barangay
Captain Florentino Sagun (BC Sagun),8 Patrolman
Rolando Callejo (Pat. Callejo),9 and BBB, the victim’s
husband.10
As culled from their testimonies, it appears that on
March 6, 1979, AAA went to Manueva, Santa, Ilocos
Sur, to talk to her father, to dig camote fruits and to
see the remains of a dead cousin. She arrived in Santa
at 2:00 o’clock in the afternoon. Three hours later, she
left and proceeded to go home. She reached Barangay
San Jose, Narvacan, at 7:00 o’clock in the evening and
saw Cabanilla standing between Cool Center and
Jessie’s Refreshment Parlor. She asked him if they
could go home together as she felt safe with him being
the nephew of her husband. Cabanilla agreed. They
headed east and stopped near a store hoping to get a
tricycle. As they could not get a ride after waiting for
a long time, Cabanilla proposed that they walk and she
agreed.
While they were walking through the rice fields,
Cabanilla suddenly placed his arm around AAA’s
shoulder. She shook his arm away and said, "Why son,
what is happening to you?" He then embraced her.
Afraid that she was about to be molested, she told him,
"Why my son, what are you doing to me[?] [Y]ou
should be ashamed, I am even your mother[.]" But he
replied, "Do not talk." He persisted but she resisted his
advances. To overcome her resistance, he punched her
left jaw twice. The blows were so hard that one of her
earrings flew away. When he loosened his grip on her,
she managed to free herself from his grasp and ran
away only to stumble and fall. When he caught up
with her, he squeezed her neck and told her, "If you
don’t like, I will kill you." She continued to struggle
but he just forced himself to be on top of her.
Eventually, AAA lost her strength in fighting him.
Cabanilla then removed her panties and forced open
her legs. He thrust his penis inside her vagina and
made push-and-pull movements. After satisfying his
lust, he stood up, pulled up his briefs and pants and
then told her to stand up so they could go home
together. He threatened to shoot her and her husband
and burn their house if she would tell anyone. AAA
assured him that she would not report the incident
because she was afraid of him. She believed that he
could make good his threats because she knew that he
owned a gun.
When she was about forty meters away from her
house, they separated ways. She then ran towards her
house and called her husband, BBB, who was then
unloading Virginia tobacco leaves. BBB met her and
asked her why she was crying. She answered, "That
nephew of yours is an animal." Then they went to
their yard and she called the parents of Cabanilla.
When his parents arrived, she told them about her
ordeal in the hands of their son. Thereafter, she and
her husband went to the house of Barangay
Councilman Esteban Calderon (Calderon) to report
the incident. Her husband then proceeded to the
house of BC Sagun and reported to him what Cabanilla
did to his wife.
BBB, his nephew, Calderon, and BC Sagun
accompanied AAA to the Jacob-Laya Hospital for her
medical examination. Dr. Bañez examined her vagina
and found moving sperm in her vaginal canal. He also
noted a contusion on her left jaw and superficial
scratches on the outer portion of her neck. He gave her
medications for the contusion and abrasions and
administered tranquilizer because she appeared to be
agitated.
From the hospital, the group went to the Integrated
National Police of Narvacan to report the rape
incident. Since AAA could not narrate the incident
clearly and in an orderly manner because of her then
state of mind, she was advised to give her statement
the following day. The group returned the next day
and her statements and that of BC Sagun were taken.
The report on the rape incident was reflected in the
police blotter as Entry No. 145, page 43, dated March
6, 1979.
Eventually, AAA was confined at the Lorma Hospital
Medical Center in San Fernando, La Union for almost
a month, beginning March 8, 1979 due to the wound
inside her mouth which was inflicted when Cabanilla
hit her left jaw. She paid ₱3,215.65 for hospital
expenses.
Version of the Defense
Cabanilla claimed that the sexual intercourse between
him and AAA on March 6, 1979 was consensual as
they were, in fact, lovers. He denied having forced
himself on her, the wife of his father’s cousin, and
bared that they became lovers two weeks before the
filing of the complaint against him. Being neighbors,
they often visited each other’s house and their
familiarity explained the mutual attraction that
developed between them. She seduced him for several
months until she became her girlfriend in January
1979. Their relationship progressed to a more intimate
level when one afternoon, he went to her house while
her husband was away. After some intimate moments,
they made love to each other.
Accused further related that he knew AAA would be
coming from Santa, Ilocos Sur on March 6, 1979
because they had previously agreed to meet at Jessie’s
Refreshment Parlor that night so they could go home
together. As agreed upon, she arrived and they headed
home to Barangay Rivadavia. While they were
walking together, she placed her arm around his waist
and he put his around her shoulder. They passed by
the South Central School and several houses, including
that of Gregorio Bilag, who saw them with their arms
around each other. They stopped walking when they
passed by a stack of hay. He pushed her down and they
affectionately excited each other. After being aroused,
he removed her red panties and they had carnal
knowledge of each other. On their way home, she
pleaded with him not to tell anybody what happened,
or else her husband would maltreat her.
AAA broke away from him when they were only a few
meters from her house. She proceeded to their house
while he hid behind tobacco plants. From there, he
saw BBB punch and kick her until she fell on the
ground. BBB repeatedly hit her jaw. The beating lasted
for ten minutes. He was about 12 meters away from
them. He became frightened when he heard AAA
shout that he had raped her.
His father, Maximiano Cabanilla, arrived after she
called for him, but his father kept his distance from the
couple when he learned that she was being beaten by
her husband. Cabanilla immediately left upon hearing
that a complaint would be filed against him the next
day. The following morning, policemen came to his
house looking for him. He hid himself for two nights.
He surrendered to the Chief of Police of Narvacan,
Ilocos Sur, when a formal complaint was filed against
him.
Accused Cabanilla insisted that their sexual congress
on March 6, 1979 was voluntary. He denied punching
and threatening her into submitting to his carnal
desires. He claimed that they had already six or seven
sexual encounters prior to March 6, 1979, but admitted
that there were no tokens of love or love letters from
her to prove their relationship.11 The case of rape was
filed against him only because BBB pressured her to
file it.
To corroborate the sweetheart theory espoused by the
accused, the defense placed on the witness stand
Gregorio Bilag (Bilag), Gerry Velasco (Velasco) and
Herminia Cabebe (Herminia).
Bilag narrated that on March 6, 1979, between 6:00
o’clock and 7:00 o’clock in the evening, he was in his
house in San Jose, Narvacan, Ilocos Sur, with his wife,
Concepcion Cabanilla, and their children, when
accused Cabanilla and AAA passed by. The two
appeared to be happy as they were touching each
other. He then tailed the two to find out their secret
so he would know what to tell their respective
families. He saw the two stop in the middle of the
fields and copulated with each other. Thereafter, they
went on their way walking side by side and laughing.
It was actually the second time that he witnessed them
making love to each other although he could no longer
remember the date of the first time. He did not tell her
husband or Cabanilla’s relatives of what he knew
about them.
Bilag further recalled that he gave a written statement
before a police investigator of Narvacan during the
investigation of the incident. He explained that he did
not mention in his sworn statement that he saw
Cabanilla and AAA make love on March 6, 1979
because he did not understand English. He claimed
that he did not know the contents of his written
statement when he affixed his signature thereon as
they were not translated to him in the Ilocano dialect.
Initially, he was included in the list of prosecution
witnesses because AAA and BBB requested him to
testify, but he told them that he would only tell the
truth. Patrolman Balallo and AAA went to his house
and asked him to give a statement that she was then
with Cabanilla. He was surprised after being informed
by the two that Cabanilla had sexually abused her
because he knew what really happened between them
on March 6, 1979.121avvphi1
Velasco testified that at around 4:00 o’clock in the
afternoon of March 6, 1979, he, Kennedy Cabotaje and
Cabanilla, a classmate, were at Jessie’s Refreshment
Parlor. After a while, AAA arrived. She and Cabanilla
had a friendly chat for about a minute and then they
left. They proceeded towards the east, walking side by
side.13
Herminia, sister of Arsenio Cabanilla, informed the
trial court that on March 6, 1979 between 6:00 o’clock
and 7:00 o’clock in the evening, she saw AAA arrive at
her house in Barangay Rivadavia. Then, she overheard
BBB confront her, "Why did you arrive only now,
prostitute? You must be going somewhere and doing
something, prostitute, and you are having sex with
others." AAA answered, "Okinnam, loko." At that
very moment, BBB slapped her on the cheeks several
times until she fell to the ground. Even before that
day, Herminia would see the couple quarreling and
shouting at each other because he was jealous of
somebody. She already suspected that Cabanilla and
AAA were having an affair. She saw the two walking
together in the fields, with her arms around his waist
and his around her shoulder. Once she spotted
Cabanilla kissing her.14
On August 17, 2000, the RTC rendered a
decision15 declaring that the prosecution was able to
establish with certainty that Cabanilla indeed sexually
assaulted AAA on March 6, 1979. It rejected his
sweetheart theory stating that it "was not clearly
established."16 The trial court was of the view that
AAA’s testimony met the test of credibility and that
she had no motive to testify falsely against Cabanilla.
The decretal portion of the RTC decision reads:
WHEREFORE, PREMISES CONSIDERED, the Court
finds the accused GUILTY BEYOND REASONABLE
DOUBT and hereby sentences him to suffer the
penalty of RECLUSION PERPETUA.
The accused is also ordered to pay AAA ₱3,215.00
spent for hospitalization.
The accused shall also pay the costs.
SO ORDERED.17
The records of the case were originally transmitted to
this Court on appeal. On September 27, 2004, a
Resolution, pursuant to People v. Efren Mateo,18 was
issued transferring this case to the CA for appropriate
action and disposition.
On October 11, 2007, the CA sustained the findings of
the RTC that the sexual intercourse between Cabanilla
and AAA was not consensual. The appellate court,
however, modified the RTC decision with respect to
the award of damages. Thus, the dispositive portion of
the CA decision reads:
WHEREFORE, the DECISION DATED AUGUST 17,
2000 is AFFIRMED, subject to the MODIFICATION
that the accused is ordered to pay AAA the amount of
₱50,000.00 as indemnity ex delicto and ₱50,000.00 as
moral damages.
Costs of suit to be paid by the accused.
SO ORDERED.19
Undaunted, Cabanilla filed a Notice of Appeal20 dated
November 5, 2007 which was given due course by the
appellate court in its June 13, 2008 Minute
Resolution.21
On February 18, 2009, the Court issued a resolution
requiring the parties to submit their respective
supplemental briefs. Both the Office of the Solicitor
General (OSG) and the accused manifested that they
would just adopt their respective briefs filed before the
CA as their supplemental briefs.
The Issue
The issues boil down to whether or not the sweetheart
defense is credible so as to overcome the prosecution’s
evidence that the intercourse was not consensual.
Accused Cabanilla faults the trial court for relying
heavily on the testimony of AAA that she was forced
to have sexual intercourse with him, and for its refusal
to give credence to his sweetheart theory. He admits
having carnal knowledge with her, but he vehemently
insists that the sexual congress on the night of March
6, 1979 was, though illicit, consensual as they were
sweethearts. He asserts that his defense was amply
corroborated by Bilag whose testimony clearly
militates against her complaint that she was sexually
abused by him. Even assuming that his defense is
weak, he argues that said fact alone cannot sustain a
verdict of conviction. The prosecution must rest on
the strength of its own evidence and is not relieved of
the onus of proving his guilt beyond reasonable doubt.
On the other hand, the OSG insists on the correctness
of his conviction on the basis of the totality of the
prosecution’s evidence centered on the credible
testimony of AAA. Not a scintilla of credible evidence
was adduced by Cabanilla to prove his sweetheart
defense.
THE COURT’S RULING
After an assiduous assessment of the records, the Court
holds that Cabanilla indeed committed rape against
AAA. There is no cogent reason to reverse the findings
and conclusion of the RTC, as affirmed by the CA.
A rape charge is a serious matter with pernicious
consequences both for the accused and the
complainant, so that utmost care must be taken in the
review of a decision involving conviction of
rape.22 Thus, the Court has consistently adhered to the
following guiding principles, to wit: (1) an accusation
for rape can be made with facility, while the
accusation is difficult to prove, it is even more difficult
for the accused, albeit innocent, to disprove; (2)
considering that, in the nature of things, only two
persons are usually involved in the crime of rape, the
testimony of the complainant must be scrutinized
with extreme care; and (3) the evidence for the
prosecution must succeed or fail on its own merits, and
cannot be allowed to derive strength from the
weakness of the evidence for the defense.23 Corollary
to the above principle is the rule that the credibility of
the victim is always the single most important issue in
the prosecution of a rape case.241avvphi1
The issue of credibility of the witnesses has, time and
again, been settled by this Court as a question best
addressed to the province of the trial court because of
its unique position of having observed the witnesses’
deportment on the stand while testifying. The
reviewing court is generally bound by the trial court’s
findings and conclusions, particularly when no
significant facts and circumstances were shown to
have been overlooked or disregarded which when
considered would have affected the outcome of the
case.25 The rule finds an even more stringent
application where said findings are sustained by the
CA.26
The Court agrees with the RTC that Cabanilla had
employed force and intimidation in order to
consummate his libidinous desire. Excerpts from her
testimony are reproduced below:
Atty. Porfirio Rapanut
(On Direct Examination)
Q: While you were on your way home with
Arsenio Cabanilla, what happened then after that?
A: While we were on the ricefield of San Jose,
Narvacan, Ilocos Sur, Arsenio Cabanilla placed his
arms around my shoulder.
Q: And what did you do when Arsenio Cabanilla
placed his arm on your shoulder?
Court (Interrupting):
Q: Where is the accused?
Atty. Casabar
A: He is there, your Honor.
Witness
A: I shook away his arm and said, "Why, son, what
is happening to you?
Q: And after you said to him those words, what did
he do or say if any?
A: He immediately embraced me, sir.
Q: And what did you do when he embraced you?
A: Because I did not want something to be done
against me I begged him that he will not do
anything bad against me.
Q: What did you say when, will you kindly quote
the exact words which you said to him at that
time?
A: "Why my son, what are you doing to me, you
should be ashamed, I am even your mother."
Q: And what did he do after you have said those
words to him?
A: He said, "Do not talk."
Q: Then what transpired after that?
A: He did not heed to my begging that he will not
do anything bad against me and since I did not
want something to be done against me I struggled
against him.
Q: And what happened while you were struggling?
A: During our struggle, he boxed me twice on my
left jaw.
Q: Will you kindly indicate on your person what
part of your jaw did he box?
A: Here, sir (the witness pointing to her left jaw),
and that even my earring was lost when he was
boxing my jaw.
Q: After Arsenio Cabanilla had boxed twice on
your left jaw as you have just indicated, what
happened to you?
A: During our struggle, sir, when he loosened his
hold on my, I shook him away and took the chance
to run.
Q: Were you able to run away?
A: Yes, sir. I was able to run but after a short while
I stumbled.
Q: And when you stumbled, what happened?
A: At that time when I stumbled, he was able to
immediately squeeze my neck.
Q: While he was squeezing your neck, what did he
do?
A: He said, "If you don’t like, I will kill you."
Q: What did you do when he said those words to
you?
A: I continued struggling against him since I did
not want that something bad be done to me.
Q: And were you able to get away from him while
struggling?
A: No sir, because he went on top of me.
Q: What was your position when you said ….
when Arsenio Cabanilla was on top of you?
A: I was lying down, sir.
Q: And what happened while you were lying
down?
A: Since I did not want something bad to be done
against me, I continued struggling but then I lost
my strength he forced open my legs.
Q: After the accused had forced open your legs,
what happened next?
A: After he had placed his body on top of me and
then ….. and I then lost my strength, he brought
down my panty.
Q: Was the accused able to bring down your panty?
A: Yes, sir, he was able to bring down my panty.
Q: After that what happened?
A: He inserted his penis inside my vagina.
Q: Was he able to insert his penis to your vagina?
A: Yes, sir.
Q: What did he do then after that?
 A: When Arsenio Cabanilla had inserted his penis
inside my vagina, he then made a push and pull
motion successively.
X x x x.
The transcripts reveal that AAA’s testimony bears the
hallmarks of truth. She described in detail the hideous
experience she had suffered at the hands of Cabanilla
on that fateful night of March 6, 1979, in a
spontaneous and credible manner, devoid of any hint
of falsity or fabrication. She candidly recounted how
Cabanilla punched her left jaw twice, squeezed her
neck and threatened to kill her when she continued to
resist his advances, pulled down her panties, and
forcibly inserted his penis into her vagina only after
fatigue had weakened her tenacity to resist the sexual
assault. She remained steadfast throughout her
testimony despite being subjected to intense and
grueling cross-examination. She was not shown to
possess the shrewdness and callousness to concoct a
story of rape. Her straightforward narration of what
transpired coupled with her unwavering and
categorical identification of Cabanilla as her defiler,
sealed the case for the prosecution.
AAA’s testimony is buttressed by the medico-legal
findings of Dr. Bañez, who examined her on March 6,
1979 at 8:45 o’clock in the evening or about more than
an hour after the incident. The presence of motile
sperm cells in her violated organ indicated recent
sexual intercourse. Her contusion on the left mandible
and abrasions on her neck were ample manifestations
of her struggle that clearly fortified her charge of rape
more than words and anger could prove. The shock
and horror she experienced caused her to be nervous
that Dr. Bañez had to give her a tranquilizer to calm
her down.
The gravamen of the crime of rape is carnal knowledge
of a woman against her will or without her
consent.27 Both carnal knowledge and the use of force
and intimidation, indicating absence of consent, were
convincingly established in this case. The fact that
Cabanilla hit her left jaw when she resisted
sufficiently indicated force. Intimidation was exerted
on her when he squeezed her neck while threatening
her with death should she refuse to submit herself to
his beastly desires. By intimidation, a man keeps a
woman in a state of fear and humiliation.
Cabanilla insists on his sweetheart defense arguing
that the sexual intercourse on the night of March 6,
1979 could not have amounted to rape because she
agreed to it. This sweetheart defense deserves
consideration if only to expose its falsity.
The sweetheart defense is a much-abused defense that
rashly derides the intelligence of the Court. Being an
affirmative defense, the invocation of a love affair
must be supported by convincing proof.28 In this case,
apart from his self-serving assertions, Cabanilla
offered no sufficient and convincing evidence to
substantiate his claim that they were lovers.29
To prop up his defense of an illicit affair, Cabanilla
relied on the testimonies of Velasco, Bilag and
Herminia.
The Court finds the story of his witnesses not worthy
of credence.
First, the fact alone that two people were seen
conversing and walking side by side cannot give rise
to the inference that they were lovers. Intimacies such
as loving caresses, cuddling, tender smiles, sweet
murmurs or any other affectionate gesture that one
bestows upon his or her lover would have indicated
the existence of a relationship. Cabanilla’s witness,
Velasco, however, did not even testify on any
intimacy but only on the normal acts of two people
"talking nicely"30 and walking together.
Second, no romantic relationship can be deduced from
the fact that the two opted to walk from Barangay San
Jose to Barangay Rivadavia, where both resided. As
explained by AAA, they couldn’t get a ride home and
so she agreed to walk home with him.31 Neither was
there anything unusual, much less romantic, when she
asked him to accompany her as they knew each other,
Cabanilla being a nephew of her husband and their
neighbor.32 The Court finds it easier to believe that
they walked home together because she trusted
Cabanilla as a relative who would protect her from the
dangers of the road at nighttime and not for any
intimate reason.
Third, the improbability of Bilag's testimony betrayed
the contrived nature of his story. He claimed that the
reason why he did not divulge to the police
investigator that he saw the two making love to each
other was that he could not understand the English
language.33 The explanation is flimsy. His lack of
knowledge of English is not an excuse for he could
have easily relayed such important piece of
information in Ilocano. Further, the Court notes that
in his statement given on March 9, 1979 before Sgt.
Bartolome B. Agatep, there is a declaration stating
that: "QUESTIONS AND ANSWERS WERE
PROPOUNDED IN ILOCANO DIALECT BOTH
DECLARANT AND INVESTIGATOR COULD FULLY
UNDERSTAND EACH OTHER AND TRANSLATED
BY THE SAME INVESTIGATOR IN ENGLISH
LANGUAGE."34 There was also no showing that he
was prevented by anybody from disclosing the alleged
consensual act to said police investigator.
The Court considers it strange that Bilag maintained
his silence and did not tell anyone for many years
about what he claimed to have known all along. A
timely revelation could have cleared the doubt for all
persons concerned. Instead, he waited until he was
called to the witness stand on May 11, 1982 and July
6, 1982 to reveal this fact rendering his testimony
highly suspect.
In the light of the foregoing observations, the Court is
inclined to believe that Bilag’s knowledge of the
incident is but limited to what he had declared in his
statement dated March 9, 1979, to wit: that he was
inside his house in Brgy. San Jose on March 6, 1979 at
about 7:00 o’clock in the evening when AAA and her
companion passed by; that he did not notice whether
her companion was a man or a woman; that he was
merely informed by AAA that she was with Cabanilla;
and that Patrolman Balalio and AAA told him that
Cabanilla had sexually abused her and that they asked
him to testify that she was with him on the date and
time in question.
Fourth, the corroborative testimony of his sister,
Herminia, that he and AAA were sweethearts cannot
be given any credence precisely because they are
siblings. It is well settled that testimonies of close
relatives and friends are necessarily suspect and
cannot prevail over the unequivocal declaration of a
complaining witness.35 Herminia suspected that her
brother and her aunt, AAA, were having an affair
because she saw the two walking in the fields with
their arms around each other and, at one instance, he
kissed her. That Herminia merely ignored what she
saw and did not stop the two from continuing with
their immoral and illicit affair is simply inconsistent
with human nature. Her choice to keep quiet and not
to confront either of them about her suspicions only
rendered her testimony unreliable.
Fifth, if his defense were true – that AAA willingly
submitted to his embraces and voluntarily copulated
with him – the Court finds it difficult to understand
why she, without much ado, rushed to her husband
telling him as well as Cabanilla’s parents of the
disgusting treatment she received from Cabanilla;
reported the ugly incident to the barangay officials and
the local police; submitted herself to physical
examination at the hospital and endured the
humiliation of having someone examine her private
parts; immediately filed a complaint for rape against
Cabanilla; and then allowed herself to be subjected to
the rigors, trouble, inconvenience, ridicule, and
scandal of a public trial. Such conduct is diametrically
inconsistent with the sweetheart defense of Cabanilla.
The most natural reaction of a woman, much more a
married one, who voluntarily submitted herself to an
intimate relationship with a man, would have been to
conceal it as this would bring disgrace, dishonor and
shame to her family. Her swift revelation of the
outrage committed against her person bares her firm
resolve to immediately vindicate her lost honor and
pride and to have the sex molester punished.
Sixth, Cabanilla failed to ascribe, much less prove, any
ill motive on the part of AAA that could have
compelled her to falsely accuse him of committing the
crime. Where there is no evidence to show any
dubious reason or improper motive why a prosecution
witness would falsely testify against an accused or
falsely implicate him in a heinous crime, the testimony
is worthy of full faith and credit.36 Such failure
strengthens her credibility and the validity of the
charge.
Seventh, granting that they were lovers, this fact alone
could not have ruled out rape as it did not necessarily
mean there was consent. A love affair does not justify
rape37 for a man does not have an unbridled license to
subject his beloved to his carnal desires against her
will.38
Cabanilla’s sweetheart defense indeed suffers from
lack of convincing and credible corroboration and fails
to destroy the truthfulness and credibility of AAA’s
testimony. Such theory is a worn out defense. It is akin
to a wolf dressed in sheep’s clothing but when shorn
of its accoutrements reveals nothing but plain lust.
Taken in this light, such defense is merely a desperate
attempt to extricate himself from the bind brought
about by his insatiable desires.
Accordingly, the Court sustains the CA in awarding
the amount of ₱50,000.00 as civil indemnity to the
victim. Civil indemnity, which is in the nature of
actual or compensatory damages, is mandatory upon
the finding of the fact of rape.39 Likewise, the Court
finds the award of moral damages in the amount of
₱50,000.00 proper. Moral damages in rape cases should
be awarded without need of showing that the victim
sustained mental, physical, and psychological trauma.
These are too obvious. To still require their recital at
the trial would only prolong their agony.
WHEREFORE, the October 11, 2007 Decision of the
Court of Appeals in CA-G.R. CR No. 01430
is AFFIRMED.
SO ORDERED.
JOSE CATRAL MENDOZA
Associate Justice
WE CONCUR:
ANTONIO T. CARPIO
Associate Justice
Chairperson
ANTONIO EDUARDO DIOSDADO M.
B. NACHURA PERALTA
Associate Justice Associate Justice
ROBERTO A. ABAD
Associate Justice
ATTESTATION
I attest that the conclusions in the above Decision had
been reached in consultation before the case was
assigned to the writer of the opinion of the Court’s
Division.
ANTONIO T. CARPIO
Associate Justice
Chairperson, Second Division
CERTIFICATION
Pursuant to Section 13, Article VIII of the
Constitution and the Division Chairperson’s
Attestation, I certify that the conclusions in the above
Decision had been reached in consultation before the
case was assigned to the writer of the opinion of the
Court’s Division.
RENATO C. CORONA
Chief Justice
5. People vs. Edgardo Lupac Y Flores, GR No. 182230,
Sept. 19, 2012

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 182230 September 19, 2012
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs.
EDGARDO LUPAC y FLORES, Accused-Appellant.
DECISION
BERSAMIN, J.:
Under appeal is the decision promulgated on
November 23, 2007,1 whereby the Court of Appeals
(CA) affirmed the rape conviction of Edgardo
Lupac y Flores but modified the trial court's
characterization of the offense as statutory rape
because of the failure of the People to properly
establish the victim's minority under 12 years at the
time of the commission of the rape.
The information filed on August 16, 1999 under which
Lupac was arraigned and tried for statutory rape
alleged as follows:
That on or about the 21st day of May, 1999 in the
Municipality of Taytay, Province of Rizal, Philippines
and within the jurisdiction of this
Honorable Court, the above-named accused with lewd
designs and by means of force and intimidation, did
then and there willfully, unlawfully and feloniously
have sexual intercourse with one, AAA,2 his niece, 10
years old against her will and consent.
CONTRARY TO LAW.3
The version of the Prosecution follows.
AAA, her mother (BBB), and Lupac (allegedly BBB’s
brother) had originally been living together in the
same house, but he eventually transferred to another
place in the neighborhood. His transfer
notwithstanding, he continued going to BBB’s house,
where he occasionally took afternoon naps in the
bedroom of the house. On May 21, 1999, BBB left AAA
in the house alone with Lupac to sell peanuts in
Mandaluyong City. At around 1:30 p.m., AAA told
him that she was going to take a nap in the bedroom.
She did not lock the bedroom door as was her usual
practice.
Waking up around 2:30 p.m., AAA was aghast to find
herself naked from the waist down. She felt soreness
in her body and pain in her genitalia. Momentarily,
she noticed Lupac standing inside the bedroom near
her, clad only in his underwear. He was apologetic
towards her, saying that "he really did not intend to do
‘that’ to her."4 He quietly handed her a towel. As soon
as she absorbed what had happened, she started to cry.
He opened the windows and unlocked the door of the
house.5 Seeing the chance, she rushed out of the house,
and ran to the place of Tita Terry, a neighbor, who was
a friend of her mother’s. AAA revealed to Tita Terry
what he had done to her, saying: Inano ako ni Kuya
Ega.6 She uttered the word hindot7 – vernacular for
sexual intercourse. She and Tita Terry left together to
find BBB and inform her about what had happened to
AAA.8
The three of them reported the rape to the barangay.
A barangay kagawad accompanied them to the Taytay
Police Station to lodge a complaint for rape against
Lupac. AAA submitted to a medico-legal examination,
which found her to have suffered injuries inflicted
deep inside her genitalia (described as congested
vestibule within the labia minora, deep fresh bleeding
laceration at 9 o’clock position of the hymen, and
abraded and u-shape posterior fourchette).
During the trial, Dr. Emmanuel N. Reyes, the medico-
legal officer who had examined AAA, attested that he
had found AAA at the time of the examination to have
recently lost her virginity based on her hymen
revealing "a deep fresh bleeding at 9:00 o’clock
position."9
Lupac’s defense consisted of denial and alibi.
Lupac denied being related to AAA, either by
consanguinity or otherwise, but admitted being her
neighbor for a long time. He also denied the
accusation, insisting that he had been asleep in his
own house during the time of the rape. Nonetheless,
he conceded not being aware of any motive for AAA
to falsely charge him with rape.
After trial, on August 11, 2006, the Regional Trial
Court, Branch 73, in Antipolo City (RTC) convicted
Lupac of statutory rape,10 disposing:
WHEREFORE, PREMISES CONSIDERED, Edgardo
Lupac is hereby found guilty of the crime of statutory
rape and is sentenced to suffer the penalty of
RECLUSION PERPETUA. He is also ordered to pay
private complainant ₱ 50,000.00 as civil indemnity
and ₱ 50,000.00 in moral damages plus the cost of the
suit.
SO ORDERED.
In convicting Lupac of statutory rape as defined and
penalized under paragraph 1(d), Article 266-A of
the Revised Penal Code, as amended by Republic Act
No. 8353, the RTC concluded that although the
qualifying circumstance of relationship had not been
proven, AAA’s testimony showing her age of only 11
years at the time of the rape, being born on December
23, 1988, sufficed to prove her age as an essential
element in statutory rape.
On intermediate appeal, Lupac assailed the credibility
of AAA and argued that the RTC erred in accepting
AAA’s testimony as proof of her date of birth and her
minority under 12 years.
On November 23, 2007, the CA affirmed the
conviction,11 but modified it by holding that Lupac
was guilty of simple rape under Article 266-A,
paragraph 1(b) of the Revised Penal Code. It noted
that the Prosecution was not able to effectively
establish the victim’s minority under 12 years because
of the non-submission of AAA’s birth certificate, such
fact being essential in qualifying the offense to
statutory rape. It observed, however, that the lack of
consent as an element of rape was properly alleged in
the information and duly established by the evidence
showing that AAA had been asleep and unconscious at
the time of the commission of the rape. It held that the
variance in the mode of the commission of the rape
was really a non-issue because he did not challenge the
information at the arraignment, during the trial and
even on appeal. It disposed:
IN VIEW THEREOF, the assailed Decision convicting
the accused is hereby AFFIRMED. The penalty and
the damages are likewise AFFIRMED.
SO ORDERED.
In his appeal, Lupac insists on his innocence, still
impugning the credibility of AAA.
We affirm the CA.
Firstly, both the RTC and the CA considered AAA as
a credible witness. We accord great weight to their
assessment of the credibility of AAA as a witness as
well as of her version. Verily, the personal observation
of AAA’s conduct and demeanor enabled the trial
judge to discern if she was telling the truth or
inventing it.12 The trial judge’s evaluation, which the
CA affirmed, now binds the Court, leaving to the
accused the burden to bring to our attention facts or
circumstances of weight that were overlooked,
misapprehended, or misinterpreted but would
materially affect the disposition of the case differently
if duly considered.13 Alas, the accused made no
showing that the RTC, in the first instance, and the
CA, on review, had ignored, misapprehended, or
misinterpreted facts or circumstances supportive of or
crucial to his defense.14
Secondly, the CA rectified the mistaken
characterization by the RTC of the crime as statutory
rape. We concur with the CA. Although the
information alleged that AAA had been only 10 years
of age at the time of the commission of the rape, the
State did not reliably establish such age of the victim
in accordance with the guidelines for competently
proving such age laid down by the Court in People v.
Pruna,15 to wit:
In order to remove any confusion that may be
engendered by the foregoing cases, we hereby set the
following guidelines in appreciating age, either as an
element of the crime or as a qualifying circumstance.
1. The best evidence to prove the age of the
offended party is an original or certified true copy
of the certificate of live birth of such party.
2. In the absence of a certificate of live birth,
similar authentic documents such as baptismal
certificate and school records which show the date
of birth of the victim would suffice to prove age.
3. If the certificate of live birth or authentic
document is shown to have been lost or destroyed
or otherwise unavailable, the testimony, if clear
and credible, of the victim’s mother or a member
of the family either by affinity or consanguinity
who is qualified to testify on matters respecting
pedigree such as the exact age or date of birth of
the offended party pursuant to Section 40, Rule
130 of the Rules on Evidence shall be sufficient
under the following circumstances
a. If the victim is alleged to be below 3 years of
age and what is sought to be proved is that she
is less than 7 years old;
 b. If the victim is alleged to be below 7 years of
age and what is sought to be proved is that she
is less than 12 years old;
c. If the victim is alleged to be below 12 years
of age and what is sought to be proved is that
she is less than 18 years old.
4. In the absence of a certificate of live birth,
authentic document, or the testimony of the
victim’s mother or relatives concerning the
victim’s age, the complainant’s testimony will
suffice provided that it is expressly and clearly
admitted by the accused.
5. It is the prosecution that has the burden of
proving the age of the offended party. The failure
of the accused to object to the testimonial evidence
regarding age shall not be taken against him.
6. The trial court should always make a categorical
finding as to the age of the victim.16
The foregoing guidelines (Pruna guidelines, for short)
apply herein despite their being promulgated
subsequent to the filing of the information, for they
were only an amalgamation of the norms on proving
the age of the victim in rape variously defined in
jurisprudence. With the minority under 12 years of
AAA being an element in statutory rape, the proof of
such minority age should conform to
the Pruna guidelines in order that such essential
element would be established beyond reasonable
doubt. That was not done because the evidence
adduced by the Prosecution did not
satisfy Pruna guidelines 4 and 5, supra, to wit:
4. In the absence of a certificate of live birth, authentic
document, or the testimony of the victim’s mother or
relatives concerning the victim’s age, the
complainant’s testimony will suffice provided that it is
expressly and clearly admitted by the accused.
5. It is the prosecution that has the burden of proving
the age of the offended party. The failure of the
accused to object to the testimonial evidence regarding
age shall not be taken against him.
As such, the RTC erred in giving credence to AAA’s
declaration about her being under 12 years at the time
of the rape.
Thirdly, the conviction of Lupac for rape is upheld
despite AAA’s minority under 12 years not being
competently proved. This is because the information
also properly charged him with raping AAA by its
express averment that the carnal knowledge of her by
him had been "against her will and consent." The
essence of rape is carnal knowledge of a female
either against her will (through force or intimidation)
or without her consent (where the female is deprived
of reason or otherwise unconscious, or is under 12
years of age, or is demented).17 The Prosecution
showed during the trial that AAA had been asleep
when he forced himself on her. Such showing
competently established the rape thus charged, as
defined by paragraph 1 of Article 266-A, Revised
Penal Code,18 for AAA, being unconscious in her sleep,
was incapable of consenting to his carnal knowledge
of her. Indeed, the Court has uniformly held in several
rulings that carnal knowledge of a female while she
was asleep constituted rape.19
Lastly, Lupac assails the absence of credible direct
evidence about his having carnal knowledge of AAA
because she herself, being then asleep and
unconscious, could not reliably attest to his supposed
deed. Consequently, he argues that the evidence
against him did not amount to proof beyond
reasonable doubt.
Lupac’s argument hews closely to what the Court has
stated in People v. Campuhan20 to the effect that there
must be proof beyond reasonable doubt of at least the
introduction of the male organ into the labia of
the pudendum of the female genital organ, which
required some degree of penetration beyond the vulva
in order to touch the labia majora or the labia minora.
The position of Lupac is bereft of merit, however,
because his conviction should still stand even if direct
evidence to prove penile penetration of AAA was not
adduced. Direct evidence was not the only means of
proving rape beyond reasonable doubt. Circumstantial
evidence would also be the reliable means to do so,
provided that (a) there was more than one
circumstance; (b) the facts from which the inferences
were derived were proved; and (c) the combination of
all the circumstances was such as to produce a
conviction beyond reasonable doubt.21 What was
essential was that the unbroken chain of the
established circumstances led to no other logical
conclusion except the appellant’s guilt.22
The following circumstances combined to establish
that Lupac consummated the rape of AAA, namely: (a)
when AAA went to take her afternoon nap, the only
person inside the house with her was Lupac; (b) about
an hour into her sleep, she woke up to find herself
already stripped naked as to expose her private parts;
(c) she immediately felt her body aching and her
vaginal region hurting upon her regaining
consciousness; (d) all doors and windows were locked
from within the house, with only her and the brief-
clad Lupac inside the house; (e) he exhibited a
remorseful demeanor in unilaterally seeking her
forgiveness (Pasensiya ka na AAA), even
spontaneously explaining that he did not really intend
to do "that" to her, showing his realization of the
gravity of the crime he had just committed against her;
(f) her spontaneous, unhesitating and immediate
denunciation of the rape to Tita Terry and her mother
(hindot being the term she used); and (g) the medico-
legal findings about her congested vestibule within
the labia minora, deep fresh bleeding laceration at 9
o’clock position in the hymen, and abraded and U-
shaped posterior fourchette proved the recency of
infliction of her vaginal injuries.
The fact that all her injuries – congested vestibule
within the labia minora, deep fresh bleeding
laceration at 9 o’clock position of the hymen and
abraded and U-shaped posterior fourchette – were
confined to the posterior region area of her genitals
signified the forceful penetration of her with a blunt
instrument, like an erect penis.
The Court holds that AAA’s denunciation of Lupac as
her rapist to Tita Terry and her own mother with the
use of the words hindot and inano ako ni Kuya
Ega without any appreciable length of time having
intervened following her discovery of the rape was
part of the res gestae (that is, rape). Section 42, Rule
130 of the Rules of Court states:
Section 42. Part of the res gestae. – Statements made
by a person while a startling occurrence is taking place
or immediately prior or subsequent thereto with
respect to the circumstances thereof, may be given in
evidence as part of the res gestae. So, also, statements
accompanying an equivocal act material to the issue,
and giving it a legal significance, may be received as
part of the res gestae.
For the application of this rule, three requisites must
be shown to concur, namely: (a) that the principal act,
the res gestae, must be a startling occurrence; (b) the
statements were made before the declarant had the
time to contrive or devise a falsehood; and (c) the
statements must concern the occurrence in question
and its immediate attending circumstances. The
requisites were met herein. AAA went to Tita Terry’s
house immediately after fleeing from Lupac and
spontaneously, unhesitatingly and immediately
declared to Tita Terry that Lupac had sexually abused
her.23Such manner of denunciation of him as her rapist
was confirmed by Tita Terry’s testimony about AAA’s
panic-stricken demeanor that rendered it difficult to
quickly comprehend what the victim was then
saying.24 Of course, AAA’s use of the
words hindot and inano ako ni Kuya Ega said enough
about her being raped.
The nature of res gestae has been fittingly explained
by the Court in People v. Salafranca,25 viz:
The term res gestae has been defined as "those
circumstances which are the undesigned incidents of
a particular litigated act and which are admissible
when illustrative of such act." In a general way, res
gestae refers to the circumstances, facts, and
declarations that grow out of the main fact and serve
to illustrate its character and are so spontaneous and
contemporaneous with the main fact as to exclude the
idea of deliberation and fabrication. The rule on res
gestae encompasses the exclamations and statements
made by either the participants, victims, or spectators
to a crime immediately before, during, or immediately
after the commission of the crime when the
circumstances are such that the statements were made
as a spontaneous reaction or utterance inspired by the
excitement of the occasion and there was no
opportunity for the declarant to deliberate and to
fabricate a false statement. The test of admissibility of
evidence as a part of the res gestae is, therefore,
whether the act, declaration, or exclamation is so
intimately interwoven or connected with the
principal fact or event that it characterizes as to be
regarded as a part of the transaction itself, and also
whether it clearly negatives any premeditation or
purpose to manufacture testimony.
Lastly, the Court needs to add exemplary damages to
the civil damages awarded to AAA.1âwphi1 Under
the Civil Code, exemplary damages are imposed in a
criminal case as part of the civil liability "when the
crime was committed with one or more aggravating
circumstances."26 Such damages are awarded "by way
of example or correction for the public good, in
addition to the moral, temperate, liquidated or
compensatory damages."27
Conformably with the Civil Code, the CA and the
RTC should have recognized the entitlement of AAA
to exemplary damages on account of the attendance of
the aggravating circumstance of her minority under 12
years. It should not matter that the CA disregarded her
testimony on her age due to such testimony not
measuring up to the Pruna guidelines. At least, the
RTC found her testimony on her minority under 12
years at the time of the rape credible enough to convict
the accused of statutory rape. Nor was it of any
consequence that such minority would have defined
the rape as statutory had it been sufficiently
established. What mattered was to consider the
attendance of an aggravating circumstance of any kind
to warrant the award of exemplary damages to the
victim. This was the point stressed in People v.
Catubig,28 to wit:
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.
For exemplary damages, therefore, the Court holds
that the sum of ₱ 30,000.00 is reasonable and proper.
The Court declares Lupac to be further liable to pay
interest of 6% per annum on all the items of civil
damages, to be reckoned from the finality of this
decision until full payment.
WHEREFORE, we AFFIRM the decision promulgated
on November 23, 2007 in all respects, subject to the
modification that EDGARDO LUPAC y FLORES shall
pay the further amount of ₱ 30,000.00 as exemplary
damages, plus interest of 6% per annum on the civil
indemnity, moral damages, and exemplary damages,
reckoned from the finality of this decision until full
payment.
Costs of suit to be paid by the accused.
SO ORDERED.
LUCAS P. BERSAMIN
Associate Justice
WE CONCUR:
MARIA LOURDES P.A. SERENO
Chief Justice
TERESITA J.
LEONARDO-DE ARTURO D. BRION*
CASTRO Associate Justice
Associate Justice
BIENVENIDO L. REYES
Associate Justice
CERTIFICATION
Pursuant to Section 13, Article VIII of the
Constitution, I certify that the conclusions in the
above Decision had been reached in consultation
before the case was assigned to the writer of the
opinion of the Court's Division.
MARIA LOURDES P.A. SERENO
Chief Justice
6. People vs. Isla Rossell, GR No. 199875, Nov. 21, 2012

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 199875 November 21, 2012
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs.
EDWIN ISLA Y ROSSELL, Accused-Appellant.
DECISION
MENDOZA, J.:
This is an appeal from the December 17, 2010
Decision1 of the Court of Appeals (CA) in CA-G.R. CR
No. 28761, which affirmed the April 26, 2004
Decision2 of the Regional Trial Court, Branch 98,
Quezon City (RTC), finding the accused guilty beyond
reasonable doubt of the crimes of Rape and Frustrated
Murder.
On July 25, 1997, two separate Informations for
Frustrated Murder and Rape were filed before the
RTC, docketed as Criminal Case Nos. Q-97-72078 and
Q-97-72079, respectively. These informations read:
Criminal Case No. Q-97-72078
The undersigned accuses EDWIN ISLA Y ROSSELL of
the crime of Frustrated Murder, committed as follows:
That on or about the 21st day of July, 1997, in Quezon
City, Philippines, the said accused, with intent to kill,
with treachery and with evident premeditation, with
abuse of superior strength, did then and there wilfully,
unlawfully and feloniously attack, assault and employ
personal violence upon the person of AAA3 by then
and there stabbing her with a kitchen knife, hitting
her twice below the chest, thereby inflicting upon said
AAA serious and mortal wounds, the offender thus
performing all the acts of execution which would
produce death, which, however, was not produced by
reason of cause independent of the will of the
perpetrator, that is, the timely medical intervention,
to the damage and prejudice of the said offended party.
CONTRARY TO LAW.4
Criminal Case No. Q-97-72079
The undersigned accuses EDWIN ISLA Y ROSSELL,
of the crime of Rape, committed as follows:
That on or about the 21st day of July, 1997, in Quezon
City, Philippines, the said accused by means of force
and intimidation, to wit: by then and there wilfully,
unlawfully and feloniously undress her and put
himself on top of her, and thereafter have carnal
knowledge with the undersigned complainant against
her will and without her consent.
CONTRARY TO LAW.5
Evidence for the Prosecution
During the trial, the prosecution presented three (3)
witnesses; namely: complainant AAA; Dr. Ma.
Cristina Freyra (Dr. Freyra), the chief of the medico-
legal division of the Philippine National Police (PNP)
Crime Laboratory; and Dr. Reynaldo Perez (Dr. Perez)
of the East Avenue Medical Center, AAA’s attending
physician.
According to AAA’s account, on July 21, 1997, at
around 3:00 o’clock in the afternoon, she was inside
her rented house together with her two (2) children,
aged 1 ½ years old and 9 months old, respectively. She
then noticed that accused Edwin Isla (Isla) was
standing by the door of her kitchen. He asked her what
time her landlady would be arriving and she answered
that she had no idea. Thereafter, she opened the door
of the kitchen, hoping that passersby would see him
inside the house. After fifteen (15) minutes, she was
startled when he suddenly poked a knife on her neck
and pulled her inside the bedroom. By this time, she
noticed that she had already closed the window and
the door of the living room. She pleaded and begged
for mercy but to no avail. She was warned not to shout
or resist otherwise she would be stabbed.
Inside the bedroom, she was made to lie down on the
floor because there was no bed. Isla placed himself on
top of her and then he removed her upper clothing.
He raised her bra, exposing her breasts and then kissed
them. Eventually, he made her spread her legs and had
carnal knowledge with her. While he was committing
the dastardly act, she noticed a knife pointed at her.
She also informed the trial court that during the whole
ordeal, her children were present and witnessed
everything.
When Isla stood up after raping her, she noticed that
the knife he was holding was already bloodstained. At
this point, she found out that she was stabbed with the
knife. She tried to take hold of the knife while
shouting for help. In response, Isla struck her the
second time, this time, under her lower left breast. She
also sustained a wound on her palm while trying to
disarm him. Then the knife fell to the floor. It was at
this moment that she was able to get hold of it and she
threw it outside through a broken window in the
room. Thereafter, Isla scampered out of the house
through the backdoor.
In a little while, a neighbor came knocking at the door
and was able to see AAA’s condition. She was taken to
the East Avenue Medical Center (EAMC) for medical
attention and was confined there for five (5) days.
At the hospital, Dr. Freyra conducted an examination
on AAA upon the request of the station commander of
the PNP Lagro Police Station. Based on her findings,
AAA sustained eleven (11) body injuries, two (2) of
which were stab wounds, six (6) incised wounds and
two (2) contusions. The stab wounds required medical
attendance of not less than 30 days. An examination of
AAA’s sexual organ showed congestions and abrasion
in the labia minora and yielded negative result on the
presence of spermatozoa.
AAA’s attending physician, Dr. Perez, on the other
hand, testified that she had multiple stab wounds on
the left side of the chest. Her chest x-ray result
disclosed an accumulation of blood in the thorax
which required him to conduct a procedure to drain
the blood. He concluded that the stab wounds were
severe and fatal which could have led to AAA’s death
had it not been for the timely medical attendance.
Evidence for the Defense
For the defense, accused Edwin Isla was presented
together with two (2) psychiatric doctors who
examined him.
Isla never denied that he raped AAA on July 21, 1997.
Invoking the defense of insanity, he testified that
before the incident, he and AAA had an illicit
relationship for about two months until they broke up.
He had to use a knife to be able to have sexual
intercourse with her. It was the first time that he and
AAA had sex. After raping her, he admitted stabbing
AAA twice, first on her left breast and then on her
lower right breast "for reason he cannot
understand."6 He also punched her several times when
she attempted to grab the knife from him.
As to Isla’s claim of insanity, Dr. Juan Villacorta (Dr.
Villacorta) and Dr. Mary Gomez (Dr. Gomez) of the
National Center for Mental Health (NCMH) were
presented as qualified expert witnesses.
Dr. Villacorta testified that Isla was suffering from a
major depressive disorder with psychotic features; that
he manifested psychosis on account of his
hallucinations, poor impulse control, poor judgment,
and low frustration tolerance; and that he exhibited
such behavioral pattern immediately prior to being
jailed. Dr. Villacorta, however, could not say with
definite certainty or not Isla was suffering from such
mental disorder on July 21, 1997 as there was no
examination conducted on Isla on the said date.7
To corroborate Dr. Villacorta’s findings, Dr. Gomez
was presented. After a thorough interview and
psychiatric testing on Isla, she likewise observed that
Isla was suffering from a major depressive disorder
which impaired his mental faculties. She said that his
psychosis could have been existing prior to or about
July 21, 1997 but again, like Dr. Villacorta, she opined
that such finding could not be conclusive because of
lack of information from other informants during that
time.8
Ruling of the RTC
On April 26, 2004, the RTC convicted Isla of the
crimes of rape and frustrated murder. It did not give
credence to his defense of insanity because it noted
that Isla committed the crimes charged during a lucid
interval. He knew that what he was doing was
unlawful. There was no indication that he was
deprived of reason or discernment and freedom of will
when he committed all the acts attending the
commission of the crime. The RTC gave no weight to
the assertion of the defense that, based on the
evaluations made by the doctors from NCMH, Isla was
suffering from psychosis since 1992. It was of the
impression that there was nothing in the testimony of
these expert witnesses that Isla was suffering from
psychosis long before the incident.9 On this note, his
condition could not be equated with imbecility;
hence, he could not be exempt from criminal liability.
Thus, the RTC ruled in this wise:
WHEREFORE, premises considered, judgment in
these cases is hereby rendered as follows:
1. In Criminal Case No. Q-97-72079, the Court
finds accused Edwin Isla y Rosell GUILTY beyond
reasonable doubt of the crime of RAPE as defined
and penalized under Art. 335 of the Revised Penal
 Code, and hereby SENTENCES him to suffer the
penalty of reclusion perpetua and to indemnify
complainant AAA the amount of Php50,000.00 as
civil indemnity ex delicto, the amount of
Php50,000.00 as moral damages, and to pay the
cause of suit.
2. In Criminal Case No. Q-97-72078, the Court
finds accused Edwin Isla y Rosell GUILTY beyond
reasonable doubt of the crime of Frustrated
Murder and hereby SENTENCES him to suffer the
indeterminate penalty of eight (8) years and one
(1) day of prision mayor as minimum to seventeen
(17) years and four (4) months of reclusion
temporal as maximum, and to indemnify
complainant the sum of P10,000.00 for actual
damages, and to pay the cause of suit.
SO ORDERED.10
Ruling of the CA
Aggrieved, Isla interposed an appeal with the CA. On
December 17, 2010, the CA denied the appeal and
affirmed the RTC decision which found Isla to have
acted with discernment when he committed the
crimes.According to the CA, Isla exactly knew that
what he was doing was evil so much so that he had to
employ cunning means, by discreetly closing the
windows and the door of the house and by resorting
to threats and violence, to ensure the consummation
of his dastardly deed. The fact that he scampered away
after AAA was able to take the knife from him, would
only show that he fully understood that he committed
a crime for which he could be held liable.
The CA did not give weight to the expert testimonies
given by the two psychiatric doctors either. Since the
mental examination on Isla was taken four to six years
after the commission of the crimes, the doctors could
not say with definite certainty that he was suffering
from psychosis immediately before or simultaneous to
the commission of the crimes which was very vital for
said defense to prosper. Thus, the CA affirmed the
RTC decision.11
Hence, the present appeal.
Both the prosecution and the defense opted not to file
any supplemental briefs and manifested that they were
adopting their arguments in their respective briefs
filed before the CA. In his Appellant’s Brief, the
defense presented the following:
I.
THE TRIAL COURT SERIOUSLY ERRED IN
CONVICTING THE ACCUSED–APPELLANT
NOTWITHSTANDING THAT HIS GUILT HAS
NOT BEEN PROVEN BEYOND REASONABLE
DOUBT.
II.
THE TRIAL COURT GRAVELY ERRED IN NOT
FINDING THAT THE ACCUSED-APPELLANT
WAS INSANE AT THE TIME OF THE
COMMISSION OF THE OFFENSE.
At the outset, this Court notes that there is no more
question as to whether or not AAA was raped by Isla.
The latter never denied this fact which can be gleaned
from his direct testimony, to wit:
Atty. Erasmo (defense counsel)
Q: So when you left at 4:00, where did you proceed?
A: To my aunt at Balintawak.
Q: How about AAA, what happened to her if you
know?
A: she was raped and stabbed, sir.
Q: Who raped and stabbed AAA, if you know?
A: Me, sir.
Q: What time did this happen?
A: 3:00 o’clock, sir.
Q: Now, how did you rape AAA?
A: I went inside their house.12
(Emphases supplied)
That being so, what is left for this jurisdiction to
resolve is whether or not Isla’s claim of insanity is
creditable so as to exculpate him of the crimes he
admittedly committed.
This Court is not convinced with Isla’s defense.
Article 12 of the Revised Penal Code (RPC) provides
for one of the circumstances which will exempt one
from criminal liability which is when the perpetrator
of the act was an imbecile or insane, unless the latter
has acted during a lucid interval. This circumstance,
however, is not easily available to an accused as a
successful defense. Insanity is the exception rather
than the rule in the human condition. Under Article
800 of the Civil Code, the presumption is that every
human is sane. Anyone who pleads the exempting
circumstance of insanity bears the burden of proving
it with clear and convincing evidence. It is in the
nature of confession and avoidance. An accused
invoking insanity admits to have committed the crime
but claims that he or she is not guilty because of
insanity. The testimony or proof of an accused's
insanity must, however, relate to the time
immediately preceding or simultaneous with the
commission of the offense with which he is charged.13
In the case at bench, the defense failed to overcome
the presumption of sanity. The respective testimonies
of Dr. Villacorta and Dr. Gomez of the NCMH, as
qualified expert witnesses, failed to support its claim
of insanity. As observed by the CA, the mental
examination on Isla taken four to six years after the
incident happened in July 1997, in effect, showed that
it could not be concluded with certainty that he was
suffering from such psychosis immediately before or
simultaneous to the commission of the crimes. The
expert witnesses themselves opined that their findings
were not conclusive as to whether Isla was insane on
that fateful day of July 21, 1997, as no examination was
made on said day or for lack of information from other
informants during that time.14
This Court also agrees with the observation of the RTC
as affirmed by the CA that Isla acted with discernment
as can be deduced from his acts before, during and
after the commission of the crimes with which he was
charged. The RTC wrote:
The overt acts committed by the accused are attributed
to a criminal mind, not a lunatic. There is no
indication whatsoever that he was completely
deprived of reason or discernment and freedom of will
when he stood for a while by the door of complainant’s
house, then entered it, toyed with a disconnected
telephone set, and cunningly poked a knife at
complainant’s neck and dragged her inside the room
where he raped her. The fact that he first discreetly
closed the door and the window before he approached
and poked a knife at complainant, then, as he laid on
top of her, ordered her to undress, kissed her breast,
separated apart her legs with his own legs, and satisfied
his lust, all the while holding a knife with his right
hand poked at complainant’s body, are calculated
means to ensure consummation of his lewd design.
These are by no means the workings of an imbecile,
but by one engulfed by lust.15
In the case of People vs. Rafanan, Jr., this Court has
held that the defense of insanity may be accepted as an
exempting circumstance on the test of cognition,
which requires a complete deprivation of intelligence,
not only of the will, in committing the criminal act.
Thus, when the accused in said case, threatened the
victim with death in case she reported her ravishment
indicated that he was aware of the reprehensible moral
depravity of that assault and that he was not deprived
of intelligence.16
If Isla had become insane after the commission of the
crime, such fact does not alter the situation and the
Court’s ruling is the same. His defense still fails
considering that he was not insane during the
commission of the acts charged. Any problem
regarding his present mental condition should be dealt
with administratively.
With respect to the stabbings, it appears that Isla
committed two acts. The first was while he was
ravishing AAA. The Court considers this and the rape
as one continuous act, the stabbing being necessary, as
far as he was concerned, for the successful
perpetration of the crime. When he testified, Isla
claimed that he had to use the knife so he could have
sexual intercourse with her.
The second stabbing took place after consummation of
the rape act. According to AAA, after her defilement,
she noticed the knife bloodied and she tried to wrest
it from him. In their struggle, she was stabbed under
her lower left breast but she was able to force Isla to
drop the knife. At this point, Isla was able to escape
through the backdoor. This second stabbing is a
separate and distinct offense as it was not a necessary
means to commit the rape. It was intended to do away
with her life. Thus, it has been written, "Where a girl
was raped and then strangled to death, the crimes are
the separate crimes of rape and homicide, not
complex."17 This was also the ruling in People v.
Dawandawan,18 where it was written:
The physical injuries which could have caused the
victim's death were not the result of the rape
committed; neither was the slashing a necessary
means for committing the rape. Independently of the
slashing of the victim's neck and the stabbing, the
accused was able to consummate the rape. The
physical injuries were inflicted after the rape and were
not a necessary means to commit the same. Hence, the
crimes committed are the two separate crimes of Rape
and Frustrated Homicide.
The Court, however, finds itself unable to agree that
the second crime committed was frustrated murder. In
the information, it was alleged that the stabbing was
committed with treachery, evident premeditation and
abuse of superior strength. There is, however, nothing
in the records of the case that would show the
presence of the said qualifying circumstances.
Evidently, there was no treachery. For treachery to
exist "the offender commits any of the crimes against
persons, employing means, methods, or forms in the
execution, which tend directly and specially to insure
its execution, without risk to the offender arising from
the defense which the offended party might make." It
is important in ascertaining the existence of treachery
that it be proven that the attack was made swiftly,
deliberately, unexpectedly, and without a warning,
thus affording the unsuspecting victim no chance to
resist or escape the attack.19 In the case at bench, Isla’s
attack was not sudden, swift, deliberate and without
warning. He stabbed AAA during the course of the
struggle. Thus, the prosecution failed to show that the
stabbing was so calculated as not to afford AAA the
chance to evade the attack.
Moreover, the attack was not with evident
premeditation. The elements of evident premeditation
are: (1) a previous decision by the accused to commit
the crime; (2) overt act/acts manifestly indicating that
the accused clung to his determination; and (3) a lapse
of time between the decision to commit the crime and
its actual execution sufficient to allow accused to
reflect upon the consequences of his acts. These
circumstances were not obtaining in the case at bench.
An examination of the facts would reveal that there
was no sufficient time that elapsed for Isla to decide to
commit the crime and reflect on its consequences.
Moreover, there was no showing that he performed
other overt acts to show that he was determined to
commit murder. The essence of evident premeditation
is that the execution of the criminal act must be
preceded by cool thought and reflection upon the
resolution to carry out the criminal intent, during the
space of time sufficient to arrive at a calm
judgment.20 When Isla stabbed AAA the second time,
it was more of a reaction to the possibility of his being
disarmed by his victim rather than a well-planned
attack to kill her.
Neither was there an abuse of superior strength. There
was no showing that Isla took advantage of his
superior strength to consummate the crime.
For said reasons, the crime charged should have been
frustrated homicide only. Consequently the penalty
should be changed.
Under Article 249 of the RPC, the imposable penalty
for one found guilty of Homicide is reclusion
temporal, whose duration is from twelve (12) years
and one (1) day to twenty (20) years. Considering that
the crime is frustrated, Article 250 in relation to
Article 50 of the RPC provides that the penalty next
lower in degree of the penalty prescribed by law for
the consummated felony should be imposed. Thus, the
penalty should only be prision mayor, the duration of
which is from six (6) years to twelve (12) years.
Considering that there are neither aggravating nor
mitigating circumstances, Article 64 of the RPC
provides that the penalty should be in its medium
period which is eight (8) years and one (1) day to ten
(10) years.
Applying the Indeterminate Sentence Law, the
minimum term should be within the range of prision
correccional, the penalty next lower in degree. Hence,
for the crime of frustrated homicide, Isla should suffer
the indeterminate penalty ranging from four (4) years
of prision correccional, as minimum, to eight (8) years
and one (1) day of prision mayor, as maximum.
With respect to the civil aspect, he should also be
made to pay AAA the amount of P30,000.00 as
exemplary damages in addition to the civil indemnity
ex delicto and moral damages awarded. Said award is
in consonance with prevailing jurisprudence on
simple rape wherein exemplary damages are awarded
in order to set a public example and to protect hapless
individuals from sexual molestation.21
In lieu of the award of P10,000.00 as actual damages,
an award of temperate damages should be given
instead. The Court has consistently held that in order
for one to be entitled to actual damages, the claim must
not only be capable of proof, but must actually be
proved with a reasonable degree of certainty. Courts
cannot simply rely on speculation, conjecture or
guesswork in determining the fact and amount of
damages but there must be competent proof of the
actual amount of loss. Credence can be given only to
claims which are duly supported by receipts.22
In this case, AAA failed to provide receipts to
substantiate her claim. This Court, however, is not
unmindful of the fact that AAA was hospitalized for
about five (5) days. Considering that the expenses she
incurred cannot be proved with certainty, an award of
temperate damages is but proper. Temperate damages
may be allowed in cases where from the nature of the
case, definite proof of pecuniary loss cannot be
adduced, although the court is convinced that the
aggrieved party suffered some pecuniary loss.23 An
award of P8,000.00 as temperate damages is, to the
Court's mind, just.1âwphi1
WHEREFORE, the Court AFFIRMS with
,MODIFICATION the December 17, 2010 Decision of
the Court of Appeals in CA-G.R. No. 28761 as follows:
1. In Criminal Case No. Q-97-72079, finding the
accused Edwin Isla y Rossell guilty beyond
reasonable doubt of the crime of Rape, the Court
hereby sentences him to suffer the penalty of
reclusion perpetua; to pay AAA P50,000.00 as civil
indemnity ex delicto, and P50,000.00 as moral
damages, P30,000.00 as exemplary damages; and to
pay the cost of suit.
2. In Criminal Case No. Q-97-72078, finding the
accused Edwin Isla y Rossell guilty beyond
reasonable doubt of the crime of Frustrated
Homicide, the Court hereby sentences him to
suffer the indeterminate penalty of imprisonment
ranging from four (4) years prision correccional, as
minimum, to eight (8) years and one (1) day of
prision mayor, as maximum; to pay AAA the sum
 of P8,000.00 as temperate damages; and to pay the
cost of suit.
SO ORDERED.
JOSE CATRAL MENDOZA
Associate Justice
WE CONCUR:
PRESBITERO J. VELASCO, JR.
Associate Justice
Chairperson
MARIANO C. DEL
ROBERTO A. ABAD
CASTILLO*
Associate Justice
Associate Justice
JOSE PORTUGAL PEREZ**
Associate Justice
ATTESTATION
I attest that the conclusions in the above Decision had
been reached in consultation before the case was
assigned to the writer of the opinion of the Court's
Division.
PRESBITERO J. VELASCO, JR.
Associate Justice
Chairperson, Third Division
CERTIFICATION
Pursuant to Section 13, Article VIII of the
Constitution and the Division Chairperson's
Attestation, I certify that the conclusions in the above
Decision had been reached in consultation before the
case was assigned to the writer of the opinion of the
Court's Division.
MARIA LOURDES P. A. SERENO
Chief Justice
7. Through Sexual Assault: People vs. Gaduyon, GR No.
181473, Nov. 11, 2013

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 181473 November 11, 2013
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs.
DONEY GADUYON y TAPISPISAN, Accused-
Appellant.
DECISION
DEL CASTILLO, J.:
This is a case of a father defiling his 12-year old
daughter on three separate occasions.
On appeal is the Decision1 dated July 31, 2007 of the
Court of Appeals (CA) in CA-G.R. CR-H.C. No. 02511
that affirmed in toto the January 18 2006 Decision2 of
the Regional Trial Court (RTC), Branch 76, San Mateo,
Rizal, in Criminal Case Nos. 6572-74, finding
appellant Doney Gaduyon y Tapispisan (appellant)
guilty beyond reasonable doubt of qualified
rape,3 qualified object rape4 and sexual
abuse5 committed against his own daughter "AAA".6
Factual Antecedents
Three Informations were filed against appellant, the
relevant portions of which read as follows:
In Criminal Case No. 6572 for Qualified Rape
That on or about the 22nd day of August 2002, in the
Municipality of San Mateo, Province of Rizal,
Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, taking
advantage of his moral authority and ascendancy and
by means of force and intimidation, did then and there
willfully, unlawfully, and feloniously have carnal
knowledge of one "AAA," a minor, 12 years of age,
against her will and without her consent, the said
crime having been attended by the qualifying
circumstances of relationship and minority, the said
accused being the parent of the said victim, a 12-year
old minor daughter of the accused thereby raising the
crime to Qualified Rape which is aggravated by the
circumstance of Treachery, Abuse of Superior
Strength, Nighttime and Dwelling.
CONTRARY TO LAW.7
In Criminal Case No. 6573 for Sexual Abuse
That on or about the 21st day of August 2002, in the
Municipality of San Mateo, Province of Rizal,
Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, taking
advantage of his moral authority and ascendancy
being the parent of the victim "AAA", with lewd
design x x x and intent to debase, degrade or demean
said victim, did then and there willfully, unlawfully
and knowingly commit lascivious conduct on the said
"AAA," a minor, 12 years of age, by then and there
touching her breast and rubbing her arms, against her
will and without her consent thereby constituting
SEXUAL ABUSE which is prejudicial to her normal
growth and development with attendant aggravating
circumstance of RELATIONSHIP increasing the
penalty of the offense to its maximum period.
CONTRARY TO LAW.8
In Criminal Case No. 6574 for Qualified Object Rape
That on or about the 9th day of October 2002, in the
Municipality of San Mateo, Province of Rizal,
Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, taking
advantage of his moral authority and ascendancy and
by means of force and intimidation, did then and there
willfully, unlawfully, and feloniously insert his finger
into the genital orifice of "AAA," a minor, 12 years of
age, against her will and without her consent, the said
crime having been attended by the qualifying
circumstances of relationship and minority, the said
accused being the parent of the said victim, a 12-year
old minor daughter of the accused thereby raising the
crime to qualified object rape which is aggravated by
the circumstance of Treachery, Abuse of Superior
Strength, Nighttime and Dwelling.
CONTRARY TO LAW.9
Appellant pleaded not guilty to all the charges. Upon
termination of the pre-trial conference, trial ensued.
Version of the Prosecution
Appellant is married to the mother of "AAA" with
whom he has three daughters. Their eldest child is
"AAA," who at the time material to this case was only
12 years old.
On August 21, 2002, the mother and sisters of "AAA"
attended the wake of her auntie in Caloocan City.
"AAA" and her father, the appellant, were thus the
only ones left in the family residence in San Mateo,
Rizal. At around 9:00 p.m. of the said date, "AAA" was
lying in her bed in the family room located at the
upper portion of their house when appellant fondled
her breasts and touched her arms.10 Appellant
threatened "AAA" not to tell her mother about the
incident or else something bad might happen to the
latter.11
At around 11:00 p.m. of the following day, August 22,
2002, and while her mother and sisters were still in
Caloocan City, "AAA" was awakened when appellant
lowered her shorts and panty.12 Appellant spread her
legs and inserted his penis into her vagina.13 "AAA"
felt pain but could do nothing but cry.14 Appellant
pulled out his penis and inserted it again into "AAA’s"
vagina. When he was done, appellant put her shorts
and panty back on and again threatened "AAA."15
After more than a month or on October 9, 2002, at
about 10:30 p.m. and while "AAA" was sleeping in a
double-deck bed and her sister was in the lower
portion thereof, "AAA" was suddenly awakened. She
noticed that her short pants had been lowered while
appellant was already lying beside her.16 Appellant
then inserted his index finger into "AAA’s" vagina.
"AAA" only cried upon feeling the pain. After his
deplorable act, appellant reiterated his previous threat
to "AAA."17
After a few minutes, "AAA’s" mother entered the
room where her daughters were sleeping. She noticed
that "AAA" was covered with pillows, except for her
head and feet.18 Upon approaching "AAA," she saw
that her legs were spread apart and her panty was
slightly lowered and inserted at the center of her
genitals.19 The mother then suspected that her
husband did something bad to "AAA" since only she
and her husband were awake at that time. However,
she opted to remain silent and just pray.20
When "AAA" went to school the following day, she
was asked by her religion teacher if her father did
something bad to her.21 "AAA" who was teary-eyed
did not answer.22 Later, "AAA’s" class adviser called
her.23 They ate in the canteen and thereafter
proceeded to the adoration chapel to pray.24 After
praying, the teacher asked "AAA" the same question
propounded by the religion teacher.25 This time,
"AAA" replied that her father did something bad to her
twice but did not reveal the details surrounding the
same.26 "AAA’s" mother then came and asked her
daughter if appellant did something bad to her. "AAA"
answered "Yes. It happened twice."27 Thus, "AAA" and
her mother went to the police station and reported the
incidents of her defilement.28 A physical examination
done upon "AAA" revealed that she was in a non-
virgin physical state but that there are no signs of any
form of trauma.29 A psychiatric evaluation likewise
revealed that "AAA" was suffering from Post-
traumatic Stress Disorder with Depressed Mood.30
Version of the Defense
Appellant denied the accusations against him and
instead advanced the following version of events.
From August 21, 2002 until 9:00 a.m. of August 22,
2002, his wife and their two younger daughters
attended the wake of his wife’s sister in Caloocan
City.31 While he admitted that only he and "AAA"
were left in their house, he denied mashing her
breast.32 He claimed that at the time of the alleged
incident on August 21, 2002, he was overseeing their
computer shop.33 He also denied raping "AAA" the
following day since his wife and his youngest daughter
were already home by then and they all slept in their
house in the evening of that day.34
Anent what transpired on October 9, 2002, appellant
claimed that he closed their computer shop at around
10:00 p.m.35 He then proceeded upstairs and saw his
wife feeding their youngest daughter.36 She asked him
to take over so she could go to the bathroom
downstairs.37 At 10:25 p.m., his wife
returned.38 Appellant then heard a noise from the
outside. After a while, his kumpare called him to
report that his brother threw stones at the house of his
kumpare’s father.39 Appellant immediately went
outside.40 There was therefore no truth to the claim of
"AAA" that he inserted his finger inside her vagina
that night.41
The defense believed that "AAA" was just induced by
appellant’s wife to make false accusations against
him.42 This was due to his wife’s infidelity which was
confirmed when his wife confessed that she went out
with another man43and when their younger daughter
saw his wife kissing another man.44 Despite this,
appellant claimed that he already forgave his wife for
the sake of their children.45
Appellant’s mother corroborated his story. According
to her, appellant’s family was in their house in the
morning of August 22, 2002.46 She even talked to the
wife of appellant at around 6:00 p.m. and was told that
she went home with her youngest daughter so they
could rest since they have no place to stay in the wake
they attended in Caloocan City.47 The next day,
"AAA," her mother and sister went back to the wake.48
Appellant’s sister-in-law testified that after "AAA,"
her mother and sister went to the wake on August 23,
2002, she, together with her son, mother-in-law, and
appellant followed that evening.49 She observed that
there seemed to be nothing wrong with "AAA" since
she was serving food in the wake and playing with her
cousins.50
Ruling of the Regional Trial Court
In its January 18, 2006 Decision,51 the RTC gave more
weight to "AAA’s" positive testimony as against
appellant’s bare denials since her testimony was
candid, straightforward and free from material
contradictions. Her testimony was complemented by
the findings of the medico-legal officer who examined
"AAA." In fact, "AAA" suffered intense psychological
stress and depression as a result of the abuses.
On the other hand, the RTC found that appellant’s
denials were not substantiated by clear and convincing
evidence.1âwphi1It also found unacceptable his
attempt to malign the reputation of his wife and
daughter in order to exculpate himself. According to
the said court, this evasive attitude of appellant cannot
prevail over "AAA’s" testimony.
Accordingly, the RTC disposed of the criminal cases
thus:
WHEREFORE, premises considered judgment is
hereby rendered as follows:
(a) In Criminal Case No. 6572, for the rape
committed on August 22, 2002, accused Doney
Gaduyon y Tapispisan is hereby sentenced to suffer
the penalty of DEATH and to pay the victim
"AAA," the amount of ₱50,000 as civil indemnity,
₱50,000 as moral damages and ₱25,000.00 as
exemplary damages.
(b) In Criminal Case No. 6573, for the sexual abuse
committed on August 21, 2002, accused Doney
Gaduyon y Tapispisan is hereby sentenced to an
 indeterminate penalty of One (1) year and One (1)
month of Prision Correcional as minimum to Two
(2) years, Eleven (11) months of Prision
Correccional in its medium period as maximum.
(c) In Criminal Case No. 6574, for the rape
committed on October 9, 2002, accused Doney
Gaduyon y Tapispisan is hereby sentenced to suffer
the penalty of DEATH and to pay the victim
"AAA" the amount of ₱50,000 as civil indemnity,
₱50,000 as moral damages and ₱25,000.00 as
exemplary damages.
SO ORDERED.52
On September 4, 2006, the RTC, however, partially
modified the above judgment53 insofar as the penalty
imposed in Criminal Case No. 6574 is concerned, viz:
The aforesaid judgment is hereby partially modified x
x x to read, as follows:
"WHEREFORE, premises considered, the judgment is
hereby rendered, as follows:
(a) x x x
 (b) x x x
(c) In Criminal Case No. 6574, for the rape
committed on October 9, 2002, accused Doney
Gaduyon y Tapispisan is hereby sentenced to suffer
the indeterminate penalty of imprisonment of 6
years and 1 day of prision mayor, as minimum, to
14 years, 8 months and 1 day of reclusion temporal,
as maximum and to pay the victim "AAA", the
amount of ₱30,000.00, as civil indemnity,
₱30,000.00, as moral damages and ₱15,000.00, as
exemplary damages.
SO ORDERED."54
Ruling of the Court of Appeals
On appeal, the appellate court sustained appellant’s
conviction. Like the RTC, it stressed that appellant’s
bare assertions cannot overcome the categorical
testimony of the victim. It brushed aside the
inconsistencies on the part of "AAA" as pointed out by
appellant and concluded, after a careful evaluation of
the facts and evidence on record, that appellant’s guilt
was proven beyond reasonable doubt.
Hence, the dispositive portion of the CA’s July 31,
2007 Decision:55
WHEREFORE, the appealed Decision is AFFIRMED
in toto.
SO ORDERED.56
Assignment of Errors
Still insisting on his innocence, appellant prays for the
reversal of the CA’s appealed Decision and adopts the
same assignment of errors he advanced before the said
court, viz:
THE LOWER COURT ERRED IN NOT ACCORDING
TO THE ACCUSED THE PRESUMPTION OF
INNOCENCE TO WHICH HE IS ENTITLED IN
CRIMINAL CASES AND FOR CONVICTING HIM
OF THE OFFENSES CHARGED WITHOUT THE
BENEFIT OF PROOF BEYOND REASONABLE
DOUBT DESPITE THE EVIDENCE SHOWING
THAT –
A. THE CLAIM OF THE PROSECUTION THAT
THE ACCUSED AND HIS DAUGHTER WERE
ALONE AT THEIR SAN MATEO RESIDENCE IN
THE EVENING OF 22 AUGUST 2002, THE DATE
WHEN THE ALLEGED PENILE PENETRATION
TOOK PLACE IS A BRAZEN LIE;
B. "AAA" DID NOT MANIFEST OVERT
PHYSICAL SIGNS THAT SHE WAS RAPED;
C. "AAA" GAVE FOUR CONFLICTING
ACCOUNTS ON HOW SHE WAS RAPED;
D. "AAA" GAVE THREE CONFLICTING
ACCOUNTS ON HOW SHE WAS "FINGERED"
BY HER FATHER IN THE EVENING OF 9
OCTOBER 2002;
E. X X X THE MOTHER OF THE ALLEGED
VICTIM, CONCOCTED THE 9 OCTOBER 2002
INCIDENT;
F. THERE IS NO SPONTANEOUS DISCLOSURE.
"AAA" WAS PRESSURED TO ACCUSE HER
FATHER;
G. "AAA" IS SUSCEPTIBLE TO PRESSURE AND
MANIPULATION;
H. "AAA" BESTOWED [ON] HER FATHER A
WARM SMILE WHEN SHE IDENTIFIED HIM IN
COURT, WHICH IS UNEXPECTED IF SHE HAD
IN FACT BEEN RAPED AND MOLESTED BY
HER OWN FATHER;
I. THE DEMEANOR OF "AAA" X X X IN THE
COURSE OF THE COURT PROCEEDINGS IS
FAR FROM INSPIRING;
J. "AAA" GAVE FOUR CONFLICTING
VERSIONS OF WHAT TRANSPIRED AFTER
THE ALLEGED RAPE;
K. "AAA" IS CONSISTENT IN GIVING
INCONSISTENT STATEMENTS;
L. THE STATEMENT OF "AAA" THAT HER
FATHER DID BAD THINGS TO HER TWICE
CONTRADICTS HER CLAIM THAT SHE WAS
SEXUALLY MOLESTED THRICE;
M. "AAA" GAVE CONFLICTING ACCOUNTS
ON HOW SHE FINALLY DISCLOSED HER
ORDEAL;
N. THE WITNESSES FOR THE PROSECUTION
GAVE CONFLICTING ACCOUNTS OF HOW
"AAA" MADE THE DISCLOSURE;
O. X X X THE CLASS ADVISER OF "AAA" AND
A WITNESS FOR THE PROSECUTION, COULD
NOT BE BELIEVED WITH SAFETY;
P. THE CLAIM THAT THE ACCUSED
"FINGERED" HIS DAUGHTER IN THE EVENING
OF 9 OCTOBER 2002 IS INCREDIBLE;
Q. FROM HER TESTIMONY, IT APPEARS THAT
"AAA" IS SUBCONSCIOUSLY SENDING SUBTLE
HINTS TO THE COURT TO RECEIVE HER
TESTIMONY WITH CAUTION;
R. THE PARENTS OF "AAA" ARE NOT GETTING
ALONG WELL;
S. THE CLINICAL FINDING OF THE
PSYCHIATRIST IS FAULTY AND
INCONCLUSIVE; AND T. THE MEDICAL
EVIDENCE IS NOT CONCLUSIVE OF RAPE.57
In fine, appellant contends that the prosecution failed
to establish by proof beyond reasonable doubt that he
committed the crimes attributed to him.58 He argues
that his alibi and denial deserve greater weight in
evidence than the testimony of the prosecution
witnesses.59
Our Ruling
The appeal is unmeritorious.
The crime of rape under Article 266-A of the Revised
Penal Code (RPC)
The enactment of Republic Act (RA) No. 8353,
otherwise known as the Anti-Rape Law of 1997,
reclassified the crime of rape as a crime against
persons.60 It also amended Article 335 of the RPC and
incorporated therein Article 266-A which reads:
Art. 266-A. Rape, When and How Committed. – Rape
is committed-
1. By a man who shall have carnal knowledge of a
woman under any of the following circumstances:
 a. Through force, threat or intimidation;
b. When the offended party is deprived of
reason or is otherwise unconscious;
c. By means of fraudulent machination or grave
abuse of authority; d. When the offended party
is under twelve (12) years of age or is
demented, even though none of the
circumstances mentioned above be present;
2. By any person who, under any of the
circumstances mentioned in paragraph 1 hereof,
shall commit an act of sexual assault by inserting
his penis into another person’s mouth or anal
orifice, or any instrument or object, into the
genital or anal orifice of another person.
Thus, rape can now be committed either through
sexual intercourse or through sexual assault. In rape
under paragraph 1 or rape through sexual intercourse,
carnal knowledge is the crucial element which must
be proven beyond reasonable doubt.61 This is also
referred to as "organ rape" or "penile rape"62 and must
be attended by any of the circumstances enumerated
in subparagraphs (a) to (d) of paragraph 1. There must
be evidence to establish beyond reasonable doubt that
the perpetrator’s penis touched the labia of the victim
or slid into her female organ, and not merely stroked
the external surface thereof, to ensure his conviction
of rape by sexual intercourse.63
On the other hand, rape under paragraph 2 of the
above-quoted article is commonly known as rape by
sexual assault. The perpetrator, under any of the
attendant circumstances mentioned in paragraph 1,
commits this kind of rape by inserting his penis into
another person’s mouth or anal orifice, or any
instrument or object into the genital or anal orifice of
another person. It is also called "instrument or object
rape", also "gender-free rape", or the narrower
"homosexual rape."64
The crime of sexual abuse under Republic Act No.
7610
On the other hand, RA 7610, otherwise known as the
"Special Protection of Children Against Child Abuse,
Exploitation and Discrimination Act", defines and
penalizes child prostitution and other sexual abuse.
"Sexual abuse includes the employment, use,
persuasion, inducement, enticement or coercion of a
child to engage in, or assist another person to engage
in, sexual intercourse or lascivious conduct or the
molestation, prostitution, or incest with children.
Lascivious conduct means the intentional touching,
either directly or through clothing, of the genitalia,
anus, groin, breast, inner thigh, or buttocks, or the
introduction of any object into the genitalia, anus or
mouth, of any person, whether of the same or opposite
sex, with an intent to abuse, humiliate, harass,
degrade, or arouse or gratify the sexual desire of any
person, bestiality, masturbation, lascivious exhibition
of the genitals or pubic area of a person."65
The Information in Criminal Case No. 6573 against
appellant was for violation of Section 5(b), Article III
of RA 7610, which pertinently provides:
SEC. 5. Child Prostitution and Other Sexual Abuse. -
Children, whether male or female, who for money,
profit, or any other consideration or due to the
coercion or influence of any adult, syndicate or group,
indulge in sexual intercourse or lascivious conduct, are
deemed to be children exploited in prostitution and
other sexual abuse.
The penalty of reclusion temporal in its medium
period to reclusion perpetua shall be imposed upon the
following:
xxxx
(b) Those who commit the act of sexual intercourse or
lascivious conduct with a child exploited in
prostitution or subjected to other sexual abuse:
Provided, That when the victim is under twelve (12)
years of age, the perpetrators shall be prosecuted under
Article 335, paragraph 3, for rape and Article 336 of
Act No. 3815, as amended, the Revised Penal Code, for
rape or lascivious conduct, as the case may be:
Provided, that the penalty for lascivious conduct when
the victim is under twelve (12) years of age shall be
reclusion temporal in its medium period; x x x.
(Emphasis supplied)
In paragraph (b), the following requisites must concur:
(1) the accused commits the act of sexual intercourse
or lascivious conduct; (2) the act is performed with a
child exploited in prostitution or subjected to other
sexual abuse; and (3) the child, whether male or female
is below eighteen (18) years of age.66 This paragraph
"punishes sexual intercourse or lascivious conduct not
only with a child exploited in prostitution but also
with a child subjected to other sexual abuse. It covers
not only a situation where a child is abused for profit
but also one in which a child, through coercion,
intimidation or influence, engages in sexual
intercourse or lascivious conduct."67
Appellant is guilty of the two kinds of rape under Art.
266-A of the RPC and of sexual abuse under RA 7610.
Our examination of the testimony of "AAA" reveals
that there was carnal knowledge or sexual intercourse
through force, threat and intimidation on August 22,
2002. Appellant also committed rape by sexual assault
when he inserted his finger into the genitalia of "AAA"
on October 9, 2002. He also subjected "AAA," a minor
at 12 years of age, to sexual abuse by means of
lascivious conduct through intimidation or influence,
when he mashed her breasts and stroked her arms on
August 21, 2002. "AAA" gave detailed accounts of
these acts of perversion, viz:
Q: Last August 21, 2002, at around 9:00 o’clock in the
evening where were you?
A: I was in our house, sir.
xxxx
Q: At such time, place and date do you recall any
unusual incident that happened?
A: There was, sir.
Q: What was that?
A: I saw my daddy fondling my breasts and holding
my arms, sir.
Q: And where were you in the house when your father
did that to you?
A: I was in the room, sir.
Q: Where in the room?
xxxx
A: In the bed, sir.
ATTY. SAN JOAQUIN:
Q: What were you doing in bed?
A: I was lying, sir.
Q: And you said that your father, while you were in
bed in the room, touched your breasts, would you
please demonstrate to the court how your father
touched your breasts?
A: Like this, sir.
ATTY. SAN JOAQUIN:
Witness cupping with her two (2) palms her breasts x
x x.
xxxx
ATTY. SAN JOAQUIN:
Q: You also said that your father touched your arms,
would you please demonstrate to the court how your
father touched your arms?
A: Like this, sir.
ATTY. SAN JOAQUIN
Witness demonstrating with her right palm placed on
her left shoulder and the left palm placed on her right
shoulder and then moving them downwards.
Q: When your father did that to you, what did you do?
A: I was crying, sir.
Q: And did you say anything to your father?
A: None, sir.
Q: Did your father say anything to you?
A: Yes, sir.
Q: What was that?
A: He told me not to tell anything to my mother
because in case I would tell something to my mother,
something will happen to her, sir.
ATTY. SAN JOAQUIN:
May we manifest, your Honor, that the witness, while
saying the words she had just said, had teary eyes and
was wiping her tears with her handkerchief.
Q: When that was done to you by your father, who
were in the house?
A: Only the two (2) of us, sir.
Q: Where was your mother?
A: She was in the wake of my aunt, sir.
Q: Where was your sister "CCC"?
A: Also at the wake, sir.
Q: How about your sister "DDD"?
A: Also at the wake of my aunt, sir.
Q: What time was that again?
A: 9:00 o’clock, sir.
Q: Daytime or nighttime?
A: Evening, sir.
xxxx
Q: "AAA," while you are testifying now, what do you
feel?
A: I am afraid (natatakot po), sir.
ATTY. SAN JOAQUIN:
May we manifest that while the witness answers
"natatakot po" she is crying and wiping her eyes with
her handkerchief.
Q: At about 11 o’clock in the evening after August 22,
2002, where were you?
A: I was in the house, sir.
Q: What house?
A: The house of my grandmother, sir.
Q: Where is that?
A: "YYY," San Mateo, Rizal, sir.
Q: At that time, date and place, do you recall an
unusual incident that happened?
A: There was, sir.
Q: What was that?
A: While I was sleeping I was suddenly awakened, sir.
Q: Why were you suddenly awakened from sleep?
A: Because my dad was lowering my shorts, sir.
Q: How did you know that your daddy was lowering
your shorts?
A: I saw it, sir.
Q: Was your daddy able to lower your shorts?
A: Yes, sir.
Q: What else did he do after lowering your shorts?
A: He lowered my panty, sir.
Q: Was your daddy able to lower your panty?
A: Yes, sir.
Q: What were you doing when your daddy was
lowering your shorts and then panty, what were you
doing?
A: I was crying, sir.
Q: After your daddy has lowered your shorts and
panty what happened next?
A: He separated my legs (ibinuka niya po ang hita ko),
sir.
Q: After your daddy separated your legs, what
happened next?
A: He inserted his penis into my vagina, sir.
Q: You said he inserted his penis into your vagina, was
he able to insert his penis into your vagina?
A: Yes, sir.
Q: When your daddy inserted his penis into your
vagina, what did you feel?
A: It was painful, sir.
xxxx
Q: When the penis of your father was already inserted
into your vagina, what happened next?
A: He pulled it out and then inserted it again (hinugot
niya tapos ay ipinasok niya uli), sir.
Q: How many times did that happen that your daddy
pulled out his penis from you and then inserted it, how
many times?
A: Two (2) times, sir.
Q: Then afterwards what happened?
A: He pulled it out again then he returned my panty,
sir.
Q: What else?
A: He also returned my shorts, sir.
Q: Did you say anything to your daddy when he did
that to you?
A: No, sir.
Q: How about your daddy, did he tell you anything?
A: Yes, sir.
Q: What was that?
A: Not to tell anything to my mother because
something will happen to her if I tell anything to her,
sir.
Q: Who were in the house when your father did that
to you?
A: Only the two (2) of us, sir.
Q: Where was your mother?
A: She was still in the wake of my aunt, sir.
Q: How about your sister "CCC"?
A: She was also in the wake, sir.
xxxx
Q: What time was that when it happened?
A: At 11:00 o’clock, sir.
Q: Daytime or nighttime?
A: Nighttime, sir.
xxxx
Q: "AAA," I am asking you this question, at about
10:30 o’clock in the evening of October 9, 2002, where
were you?
A: I was in the house, sir.
Q: What house?
A: "YYY," San Mateo, Rizal, sir.
Q: At such time, date and place, do you recall any
unusual incident that happened?
A: There was, sir.
Q: What was that?
A: When I saw my shorts under my feet and my dad
was already lying beside me, sir.
Q: How do you know that your daddy was beside you?
A: I saw him, sir.
Q: Where were you at that time, what place in the
house?
A: In the room, sir.
Q: Where in the room?
A: x x x my bed, sir.
Q: What are you doing in bed?
A: I was sleeping, sir.
Q: Now, you said that you found out that your shorts
was no longer being worn by you, what happened
next?
A: My daddy inserted his finger in my vagina, sir.
Q: Which finger of your daddy was inserted at that
time into your vagina?
A: The index finger, sir.
xxxx
Q: "AAA," when your father inserted his finger into
your vagina, what did you feel?
A: It was painful, sir.
Q: What did you do when your father inserted his
finger into your vagina?
A: I just cried, sir.
Q: Did you tell your father anything?
A: None, sir.
Q: How about your father, did he tell you anything?
A: Yes, there was, sir.
Q: What was that?
A: Not to tell anything to my mother, sir.
Q: Now, who were in the house when that happened?
A: My sisters "CCC" and "DDD" and also my mother,
sir.
Q: Where was your mother when your father was
inserting his finger into your vagina, where was your
mother?
A: I do not know, sir.
Q: How about your sister "CCC"?
A: At the lower portion of the double-deck, sir.
Q: What was "CCC" doing there at the lower portion
of your double-deck bed?
A: She was sleeping, sir.
Q: How about "DDD"?
A: She was on the mattress, sir.
Q: What time was that in the evening?
A: At about 10:30, sir.68
We agree with the observation of the lower courts that
the testimony of "AAA" is worthy of credence. She
positively identified appellant as her abuser. She did
not waver on the material points of her testimony and
maintained the same even on cross-examination.
Indeed, her statements under oath are sufficient
evidence to convict appellant for the crimes alleged in
the Informations.69
Moreover, "AAA’s" testimony is corroborated by the
result of her medical examination which showed the
presence of a deep healed laceration in her private
part.70 This finding is consistent with her declaration
that appellant inserted his penis and finger into her
vagina. "Where a victim’s testimony is corroborated
by the physical findings of penetration, there is
sufficient basis for concluding that sexual intercourse
did take place."71
Appellant seeks to discredit "AAA’s" testimony by
insisting that he could not have raped the latter in the
evening of August 22, 2002 since the whole family was
in their house that day. This assertion is undeserving
of credence due to our constant pronouncement that a
bare assertion cannot prevail over the categorical
testimony of a victim.72Even if corroborated by
appellant’s mother, the same does not deserve any
weight since courts usually frown upon the
corroborative testimony of an immediate member of
the family of an accused and treat it with suspicion.
The close filial relationship between the witness and
the accused casts a thick cloud of doubt upon the
former’s testimony.
Even assuming that appellant was not alone with
"AAA" on August 22, 2002, the presence of other
people is not a deterrent to the commission of rape.
This observation is apparent from the rape by sexual
assault committed on October 9, 2002 while the entire
family was in the residence. As aptly held by the RTC
and the CA, rape indeed does not respect time and
place. Appellant impugns the credibility of "AAA" by
emphasizing that she gave conflicting accounts on the
manner she was raped. He also stresses the
contradictions in the testimony of "AAA" and the
other prosecution witnesses on the events that
transpired after the alleged rape and regarding the
disclosure by "AAA" of her ordeal.
We are not persuaded. Our review of the transcript of
stenographic notes of the testimonies of the
prosecution witnesses reveals that these
inconsistencies refer to inconsequential matters "that
do not bear upon the elements of the crime of rape.
The decisive factor in the prosecution for rape is
whether the commission of the crime has been
sufficiently proven. For a discrepancy or inconsistency
in the testimony of a witness to serve as a basis for
acquittal, it must refer to the significant facts
indispensable to the guilt or innocence of the appellant
for the crime charged. As the inconsistencies alleged
by the appellant had nothing to do with the elements
of the crime of rape, they cannot be used as [grounds]
for his acquittal."73
With regard to the inconsistencies on the part of
"AAA," it bears stressing that "victims do not cherish
keeping in their memory an accurate account of the
manner in which they were sexually violated. Thus,
an errorless recollection of a harrowing experience
cannot be expected of a witness, especially when she
is recounting details from an experience as humiliating
and painful as rape. Furthermore, rape victims,
especially child victims, should not be expected to act
the way mature individuals would when placed in
such a situation."74 Verily, in this case, minor
inconsistencies in the testimony of "AAA" are to be
expected because (1) she was a minor child during her
defloration; (2) she was to testify on a painful and
humiliating experience; (3) she was sexually assaulted
several times; and, (4) she was examined on details and
events that happened almost six months before she
testified.75
Anent appellant’s other assigned errors, we quote the
following findings of the CA:
The argument that "AAA" did not manifest overt
physical signs of having been raped since she acted and
walked normally the following day cannot justify the
reversal of appellant’s conviction. How a person goes
about the day after the happening of a horrid event is
not a tell-tale sign of the truth or falsity of an
allegation. The workings of the human mind placed
under a great deal of emotional and psychological
stress are unpredictable and different people react
differently. Furthermore, under the circumstances of
this case, overt physical manifestations cannot be
expected since "AAA" did not put up any form of
resistance. The threat of harm to be inflicted on her
mother was sufficient intimidation for her to succumb
to her father’s lust out of fear. The pattern of instilling
fear, utilized by the perpetrator in incestuous rape to
intimidate his victim into submission, is evident in
virtually all cases. It is through this fear that the
perpetrator hopes to create a climate of extreme
psychological terror which would, he hopes, numb his
victim into silence and force her to submit to repeated
acts of rape over a period of time. The relationship of
the victim to the perpetrator magnifies this terror,
because the perpetrator is a person normally expected
to give solace and protection to the victim.
Appellant would also want to impress upon this Court
that the accusation of his daughter was concocted by
his wife because of their marital problems. This
contention is preposterous. It is unnatural for a mother
to sacrifice her own daughter, a child of tender years,
and subject her to the rigors and humiliation of a
public trial for rape if she was not driven by an honest
desire to have her daughter’s transgressor punished
accordingly.
Neither can it be said that there was no spontaneous
disclosure by "AAA" of the
incident.1âwphi1 Appellant threatened "AAA." The
humiliation caused by the rape by her own father in
addition to the burden of being responsible should her
mother be harmed are sufficient to prevent any child
from freely disclosing her ordeal. We must be
reminded that the crime of rape by itself attaches
much humiliation and more so if the loss is caused by
her father. Delay and the initial reluctance of a rape
victim to make public the assault on her virtue is
neither unknown [nor] uncommon. That there was no
spontaneous disclosure does not mean that appellant is
innocent of the crimes. "AAA" was apparently a
terrified young child who was completely at the mercy
of her shameless father. Thus, "AAA’s" hesitation may
be attributed to her age, the moral ascendancy of the
accused over her, and his threats against her.
On the other hand, neither should the smile of "AAA"
while identifying her father in court be given any
malicious significance. While appellant puts much
importance to said smile, which could be a way of
concealing her nervousness, he ignored the fact that
"AAA" cried while testifying on the details of the
incidents. In fact, during her testimony, she
categorically stated that she was afraid and ashamed.
The candid and straightforward narration of how she
was abused and the tears that accompanied her story
are earmarks of credibility and must be given full faith
and credit.
With respect to appellant’s contention that the clinical
finding of Dr. Joven Ignacio, the psychiatrist, is faulty
and not conclusive because she appeared to be biased,
it is noteworthy that even without said psychiatric
test, the finding of the trial court would still be
affirmed considering that the sole testimony of the
victim is sufficient basis for conviction in rape, which
is a crime usually committed in seclusion.
Indeed, We are convinced that "AAA" had no reason
to falsely incriminate her own father in view of the
fact that the accusation would surely deny her mother
the companionship of a husband and the protection of
a father for her younger sisters. It has been
consistently held that the testimony of a rape victim as
to who abused her is credible where she has no motive
to testify against the accused.76
On the other hand, what appellant offered for his
defense were mere denials which, as aptly observed by
the RTC, are unsupported by clear and convincing
evidence.
Given the foregoing circumstances, the CA correctly
affirmed the Decision of the RTC finding appellant
guilty of the crimes charged.
The Proper Penalty
The RTC imposed upon appellant the penalty of death
for committing the crime of qualified rape through
sexual intercourse in Criminal Case No. 6572. The
Information in this case alleged the qualifying
circumstances of relationship and minority. Appellant
is the father of "AAA" and he admitted this filial bond
between them during the pre-trial conference77 and
trial. "Admission in open court of relationship has
been held to be sufficient and, hence, conclusive to
prove relationship with the victim."78 Also, "AAA’s"
birth certificate was submitted as proof of her age. This
document suffices as competent evidence of her age.79
"In view, however, of the passage of R.A. No. 9346,
which prohibits the imposition of the penalty of death,
the penalty of reclusion perpetua, without eligibility
for parole, should be imposed."80 Appellant is thus
sentenced to reclusion perpetua without eligibility for
parole for the crime of qualified rape committed
through sexual intercourse in Criminal Case No. 6572.
With regard to the crime of sexual abuse under RA
7610, the penalty provided for violation of Section 5,
Article III thereof is reclusion temporal in its medium
period to reclusion perpetua . "As the crime was
committed by the father of ["AAA,"] the alternative
circumstance of relationship should be appreciated. In
crimes against chastity, such as Acts of Lasciviousness,
relationship is always aggravating."81 With the
presence of this aggravating circumstance and no
mitigating circumstance, the penalty in Criminal Case
No. 6573 shall be applied in its maximum period –
reclusion perpetua.82
On the other hand, prision mayor is the penalty
prescribed for rape by sexual assault under Article 266-
B of the RPC. The penalty is increased to reclusion
temporal if the rape is committed with any of the 10
aggravating/ qualifying circumstances mentioned in
said article.83 Just like in Criminal Case No. 6572, the
qualifying circumstances of relationship and minority
are sufficiently alleged and proven in this case. The
penalty therefore is reclusion temporal which ranges
from twelve (12) years and one (1) day to twenty (20)
years. Applying the Indeterminate Sentence Law, the
penalty next lower in degree is prision mayor which
ranges from six (6) years and one (1) day to twelve (12)
years. Hence, the trial court and the CA correctly
imposed the indeterminate penalty of imprisonment
of six (6) years and one (1) day of prision mayor as
minimum, to fourteen (14) years, eight (8) months and
(1) day of reclusion temporal, as maximum in Criminal
Case No. 6574.
The Damages
In line with prevailing jurisprudence, the award of
damages to "AAA" in Criminal Case No. 6572 must be
increased as follows: ₱75,000.00 as civil indemnity,
₱75,000.00 as moral damages and ₱30,000.00 as
exemplary damages.84She is further awarded civil
indemnity of ₱20,000.00, moral damages and a fine at
₱15,000.00 each in Criminal Case No. 6573.85 In
Criminal Case No. 6574, the awards of civil indemnity
and moral damages at ₱30,000.00 each are maintained
but the award of exemplary damages is increased to
₱30,000.00.86 "AAA" is also entitled to an interest on
all the amounts of damages awarded at the legal rate of
6% per annum from the date of finality of this
judgment until fully paid.87
WHEREFORE, the July 31, 2007 Decision of the Court
of Appeals in CA-G.R. CR-H.C. No. 02511 which
affirmed in toto the Decision of the Regional Trial
Court of San Mateo, Rizal, Branch 76 finding appellant
Doney Gaduyon y Tapispisan guilty beyond
reasonable doubt of the crimes charged is AFFIRMED
with MODIFICATIONS in that:
 1. In Criminal Case No. 6572, appellant Doney
Gaduyon y Tapispisan is sentenced to suffer the
penalty of reclusion perpetua without eligibility
for parole and ordered to pay AAA ₱75,000.00 as
civil indemnity, ₱75,000.00 as moral damages, and
₱30,000.00 as exemplary damages;
2. In Criminal Case No. 6573, appellant Doney
Gaduyon y Tapispisan is sentenced to suffer the
penalty of reclusion perpetua and ordered to pay
AAA ₱20,000.00 as civil indemnity, Pl5,000.00 as
moral damages and a fine of 15,000.00;
3. In Criminal Case No. 6574, appellant Doney
Gaduyon y Tapispisan is ordered to pay AAA
₱30,000.00 as exemplary damages.
"AAA" is entitled to an interest on all damages
awarded at the legal rate of 6% per annum from the
date of finality of this judgment until fully paid.
SO ORDERED.
MARIANO C. DEL CASTILLO
Associate Justice
WE CONCUR:
ANTONIO T. CARPIO
Associate Justice
Chairperson
JOSE PORTUGAL
ARTURO D. BRION
PEREZ
Associate Justice
Associate Justice
ESTELA M. PERLAS-BERNABE
Associate Justice
ATTESTATION
I attest that the conclusions in the above Decision had
been reached in consultation before the case was
assigned to the writer of the opinion of the Court’s
Division.
ANTONIO T. CARPIO
Associate Justice
Chairperson
8. People vs. Zamora, GR No. 190178, Feb. 12, 2014

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 190178 February 12, 2014
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs.
FELIMON PATENTES y ZAMORA, Accused-
Apellant.
DECISION
PEREZ, J.:
The peculiar nature of rape is that conviction or
acquittal depends almost entirely upon the word of the
private complainant because it is essentially
committed in relative isolation or even in secrecy, and
it is usually only the victim who can testify of the
unconsented coitus. Thus, the long standing rule is
that when an alleged victim of rape says she was
violated, she says in effect all that is necessary to show
that rape has indeed been committed. Since the
participants are usually the only witnesses in crimes of
this nature and the accused's conviction or acquittal
virtually depends on the private complainant's
testimony, it must be received with utmost caution. It
is then incumbent upon the trial court to be very
scrupulous in ascertaining the credibility of the
victim's testimony. Judges must free themselves of the
natural tendency to be overprotective of every woman
claiming to have been sexually abused and demanding
punishment for the abuser. While they ought to be
cognizant of the anguish and humiliation the rape
victim goes through as she demands justice, judges
should equally bear in mind that their responsibility is
to render justice according to law.1
Before Us is an appeal from the Decision2 of the Court
of Appeals affirming with modification the
Decision3 of the Regional Trial Court, finding
appellant guilty beyond reasonable doubt of the crime
of Forcible Abduction with Rape and sentencing him
to suffer the penalty of reclusion perpetua.
The present case involves eight (8) sets of Information
for Forcible Abduction with Rape filed by private
complainant ("AAA") against appellant, Felimon
Patentes.
The Prosecution’s Case
On 5 December 1998, at about 11:00 a.m., AAA
boarded a bus for Bansalan, Davao City, to visit and
bring medicines to her sick grandmother. While
seated at the rear portion of the bus, appellant
suddenly sat next to her. It was the second time AAA
met appellant; the first time was on 4 December 1998,
when appellant persistently courted her. She only
knew appellant as he was a friend of her brother.
After a brief conversation, appellant suddenly showed
her his bolo, covered by a red scabbard tucked in his
right side while he held a red steel pipe with Arabic
markings, which he used to threaten to kill AAA
should AAA disobey him. Appellant then
accompanied AAA to her grandmother’s place and
returned to Davao City proper by bus. As they walked
around, appellant placed his right hand on AAA’s
shoulder. Appellant also held AAA’s right hand,
which covers her mouth with a handkerchief.
Upon reaching Davao City, they rode a jeepney to Sasa
and alighted at a nearby convenience store. Upon
arrival, a man gave something to appellant, which he
immediately placed inside his pocket. Appellant then
brought AAA to his house in Hacienda Heights, Davao
City, where his parents, sister, brother-in-law,
nephews and nieces live.
Upon entering the house, appellant dragged AAA to a
room upstairs and tied her to a sewing machine.
Appellant then started to smoke something, which he
also forced AAA to inhale, causing AAA to feel light,
weak and dizzy. This prevented AAA from fighting
back as appellant removed AAA’s clothes. Doffed of
his own clothes, appellant mounted her and inserted
his penis into her vagina.
The following day, 6 December 1998, appellant again
forced AAA to inhale the smoke from his cigarette,
causing her to feel weak and dizzy as appellant had
carnal knowledge of AAA.
On 7 December 1998, appellant again had carnal
knowledge of AAA using threats, force and
intimidation, causing bruises on AAA’s arms.
On 8 December 1998, while appellant was sleeping
beside AAA, AAA slowly got up to escape. However,
AAA’s attempt, while feeble, woke up appellant.
Appellant then punched her in the stomach, causing
AAA to lose consciousness. When AAA gained a little
strength, appellant again mauled her and raped her
again.
On 9 December 1998, after AAA took a bath, appellant
raped AAA while pointing a bolo to her neck.
On 10, 11 and 12 December 1998, appellant raped
AAA while threatening her with bodily harm. He also
threatened to kill her family, in case she tells anyone
of her ordeal.
On 13 December 1998, to free herself from her
predicament, AAA convinced appellant that she will
marry him. Appellant agreed. Appellant’s mother
accompanied AAA to the latter’s house to discuss the
marital plans with AAA’s family. Surprised by the
marital plans, AAA’s mother asked for a private
moment with AAA. In their conversation, AAA
confessed how appellant forcibly took her to his house
on 5 December 1998 and raped her for more than a
week. AAA’s mother then accompanied AAA to
report her ordeal to the police, where AAA was
examined by a doctor, Dr. Samuel Cruz, the City
Health Officer of Davao City.
Dr. Cruz testified that he examined AAA. In his
report, he noted the following observations about
AAA: (1) contusion on the breast caused by a kiss
mark; (2) hymen was intact and can readily admit a
normal-sized erect male penis without sustaining any
injury; and (3) vaginal canal was negative for
spermatozoa. Dr. Cruz also added that he cannot tell
whether it was AAA’s first sexual intercourse as the
vagina was not injured but had healed lacerations.
The Accused-Appellant’s Defense
On 5 December 1998, pursuant to their previous
agreement, appellant accompanied AAA to Bansalan
to visit and bring medicines to AAA’s grandmother.
After going around Davao City, they went to his house
at about 7:00 p.m. Appellant then offered to bring
AAA to her house but the latter refused, insisting that
she wanted to live with appellant because she was fed
up with her mother, who often called her "buntog" or
prostitute.
AAA stayed in appellant’s house together with the
latter’s parents, sister, brother-in-law, nephews and
nieces. AAA slept in the same room with appellant and
had consented sexual intercourse. Throughout AAA’s
stay, she was free to roam around the house and even
helped in the household chores. Pursuant to their
marital plans, AAA’s grandfather went to appellant’s
house on 7 December 1998. As a result, they agreed to
set the wedding date on 27 May 1999. Appellant’s
mother also went to AAA’s house to discuss the
marital plans on 14 December 1998. However, AAA’s
mother rejected the marriage proposal because of
appellant’s social standing.
Leonora Gerondio (Gerondio), appellant’s neighbor,
testified that she first met AAA in appellant’s house on
5 December 1998. The following day, Gerondio again
saw AAA when she went to appellant’s house.
Appellant told her that he will marry AAA. Since
then, Gerondio saw AAA everyday from 7 to 11
December 1998, cleaning the surroundings, doing the
laundry, and walking around the vicinity. AAA even
visited her house and talked about AAA and
appellant’s marital plans. In her observation, AAA and
appellant acted like a couple. Gerondio also
accompanied appellant’s mother to AAA’s house to
discuss AAA and appellant’s marital plans. However,
AAA’s mother rejected the marriage proposal.
Wilma Enriquez (Enriquez), a common friend of AAA
and appellant, testified that between 5 to 12 December
1998, she went twice to appellant’s house upon AAA’s
invitation to talk about the couple’s marital plans.
During trial, the prosecution presented the following
witnesses: (1) AAA, private complainant herself; (2)
Dr. Samuel Cruz; (3) PO1 Lennie Ronquillo; (4)
private complainant’s mother; and (5) Julie Dayaday.
On the other hand, the defense presented: (1) Felimon
Patentes, accused-appellant himself; (2) Leonora
Gerondio; (3) Wilma Enriquez; and (4) Francisca
Patentes.
After trial, the lower court found appellant guilty
beyond reasonable doubt of one (1) count of Forcible
Abduction with Rape and seven (7) counts of Rape.
The dispositive portion of the Decision reads:
WHEREFORE, the prosecution having proven the
guilt of the accused beyond reasonable doubt, Felimon
Patentes a.k.a. Arnold Patentes is hereby sentenced as
follows:
1. Criminal Case No. 42,786-99 - Reclusion
Perpetua
2. Criminal Case No. 42,787-99 - Reclusion
Perpetua
3. Criminal Case No. 42,788-99 - Reclusion
Perpetua
 4. Criminal Case No. 42,789-99 - Reclusion
Perpetua
5. Criminal Case No. 42,790-99 - Reclusion
Perpetua
6. Criminal Case No. 42,791-99 - Reclusion
Perpetua
7. Criminal Case No. 42,792-99 - Reclusion
Perpetua
8. Criminal Case No. 42,793-99 - Reclusion
Perpetua
The accused shall indemnify AAA Thirty Thousand
Pesos (₱30,000.00) in each of the eight cases for a total
of Two Hundred Forty Thousand Pesos (₱240,000.00).
SO ORDERED.4
Aggrieved, appellant elevated the case to the Court of
Appeals. The appellate court affirmed the decision of
the trial court with modification. The dispositive
portion of the Decision reads:
WHEREFORE, the assailed decision is AFFIRMED as
to the conviction of appellant FELIMON PATENTES
for one (1) count of Forcible Abduction with Rape and
seven (7) counts of eight (8) counts of Rape and as to
the imposition upon him of the penalty of reclusion
perpetua for each of the eight (8) offenses. His civil
liability, however, is hereby MODIFIED as follows:
Appellant FELIMON PATENTES is hereby directed to
pay the following amounts:
1. ₱50,000.00 each as civil indemnity for one (1)
count of Forcible Abduction with Rape and seven
(7) counts of Rape or a total of ₱400,000.00;
2. ₱75,000.00 each as moral damages for one (1)
count of Forcible Abduction with Rape and seven
(7) counts of Rape or a total of ₱600,000.00; and
3. ₱25,000.00 each as temperate damages for one
(1) count of Forcible Abduction with Rape and
seven (7) counts of Rape or a total of ₱200,000.00.
SO ORDERED.5
The appellate court affirmed the findings of the trial
court on the matter of credibility of the witnesses for
the prosecution. According to the appellate court,
"AAA’s account of her ordeal in the hands of appellant
was straightforward, firm, candid and consistent.
Notwithstanding the rigid, lengthy and rigorous cross-
examination by the defense, AAA remained steadfast
in her narration of the details of her harrowing
experience. A thorough reading of the transcript
shows that AAA’s testimony bears the earmarks of
truth and credibility."6
Hence, this appeal.
The elements necessary to sustain a conviction for rape
are: (1) the accused had carnal knowledge of the
victim; and (2) said act was accomplished (a) through
the use of force or intimidation, or (b) when the victim
is deprived of reason or otherwise unconscious, or (c)
when the victim is under 12 years of age or is
demented.7 In the case at bar, appellant never denied
having carnal knowledge of AAA. The only matter,
thus, to be resolved by this Court is whether appellant
had carnal knowledge of AAA against her will using
threats, force or intimidation, or that AAA was
deprived of reason or otherwise unconscious, or was
under 12 years of age or is demented.
Appellant argues that if AAA really was raped for
more than an entire week, it is perplexing why she did
not escape, or even seek the help of the neighbors
despite several opportunities to do so.8 Appellant
further alleges that AAA’s failure to escape and her
helping in the household chores in appellant’s house
prove that she was not raped and that they had
consensual sexual intercourse.9
About this position, the appellate court noted and
reasoned that, "appellant threatened AAA with harm
in the event that she told anyone of what happened
between them. The lingering fear instilled upon AAA
is understandable considering that appellant was
always armed with a bolo and was constantly showing
it to AAA. The possibility of him making good his
threat was not at all remote and the fear for her life
remained palpable."10
Behavioral psychology teaches us that people react to
similar situations dissimilarly. There is no standard
form of behavior when one is confronted by a
shocking incident as the workings of the human mind
when placed under emotional stress are
unpredictable.11 Nevertheless, the Court must be
guided by established principles.
In reviewing rape cases, the Court is guided by the
following principles: (1) to accuse a man of rape is
easy, but to disprove the accusation is difficult, though
the accused may be innocent; (2) inasmuch as only two
persons are usually involved in the crime of rape, the
testimony of the complainant should be scrutinized
with great caution; and (3) the evidence for the
prosecution must stand or fall on its own merit and
should not be allowed to draw strength from the
weakness of the evidence for the defense.12 So long as
the private complainant’s testimony meets the test of
credibility, the accused may be convicted on the basis
thereof.13
Following these legal precepts, AAA’s testimony,
placed side by side with the prosecution’s evidence,
must stand the test of credibility.
1. Absence of external signs or physical injuries does
not negate the commission of rape since proof of
injuries is not an essential element of the crime.14 And,
it is also a precept that physical evidence is of the
highest order and speaks more eloquently than all
witnesses put together.15 In the case at bar, the
prosecution failed to present any scintilla of proof to
support its claim. In fact, contrary to the prosecution’s
claim that AAA was dragged, tied, mauled, slapped
and boxed, the medical certificate revealed no telltale
sign of the prosecution’s allegations. It has to be noted
that the medical examination was conducted the day
after AAA’s supposed escape from appellant. As shown
by the medical certificate, AAA had no external signs
of physical injuries, save for a kiss mark, to wit:16
EXTRAGENITAL PHYSICAL INJURY:
Contusion, reddish purple, breast, right side, lower-
inner quadrant, 2.0x1.0 cm. xxx
CONCLUSIONS:
1. The above physical injury was noted on the body
of the subject, age of which is consistent with the
alleged date of infliction.
2. That under normal conditions without
subsequent complications and unless a deeper
involvement might be present but which is not
clinically apparent at the time of examination, said
injury will require medical attendance of not more
than seven (7) days from date of infliction.
3. Hymen intact and its orifice, wide as to allow
complete penetration by an average-sized male
organ in erection without causing hymenal
injury.17
2. The time-honored test in determining the value of
the testimony of a witness is its compatibility with
human knowledge, observation and common
experience of man.18 Thus, whatever is repugnant to
the standards of human knowledge, observation and
experience becomes incredible and must lie outside
judicial cognizance.19
As culled from the records, AAA lived with appellant’s
family for eight (8) days – in the same house where
appellant’s parents, sister, brother-in-law, nephews
and nieces also lived. AAA even called appellant’s
mother, "mama." As argued by the defense, "the
members of the appellant’s family could have noticed
that she was being forced and raped by the accused if
the accusations were really true."20 Indeed, it is
incompatible with human experience to keep a sex
slave for eight (8) days in a house where the abuser’s
entire family, including the abuser’s minor nephews
and nieces live.
When appellant and AAA arrived in the former’s
house, they were greeted by appellant’s father. If
AAA’s account were true that appellant dragged her to
a room upstairs and then tied her to a sewing machine,
appellant’s father could have noticed and reacted to
the obvious violence. To say the least, he would have
talked to the appellant about the deed. Instead, and
incredibly, appellant’s mother went to AAA’s house to
propose marriage – contrary to the common
experience.
Contrary to the prosecution’s claim that AAA only
saw appellant on 4 December 1998, a day before the
alleged commission of the crime, it was stipulated that
AAA knew appellant as appellant was a neighbor and
friend of AAA’s brother.21 Furthermore, appellant’s
mother was the midwife who assisted AAA’s
housemaid in giving birth.22 Lastly, AAA and
appellant have a common friend, Enriquez, who
testified that she saw the two in appellant’s house,
through AAA’s invitation.23 The TSN reflects the
inconsistencies in AAA’s testimony:24
Q: Do you know that his mother is a midwife?
A: No, Sir. Because she helped in the delivery of our
housemaid.
Q: When did your housemaid give birth?
A: When I went to Bansalan on December 5 I passed
by the house she was about to deliver and I saw the
mother of the accused that’s the time I came to know
his mother.
Q: Is it not that your stepfather even went to the house
where you stayed?
A: No, sir.
Q: You will deny that?
A: I did not see him.
xxxx
Q: Is it not you said you were being locked?
A: I was locked at the door when my father arrived. I
do not know because he locked me at the room.
[Emphasis supplied]
For several days that AAA had been missing, which
would have caused worry and anxiety among AAA’s
family members, AAA’s father, instead of reporting
the matter to police authorities, went to appellant’s
house to discuss AAA and appellant’s marital plans on
7 December 1998.25 Clearly, this is contrary to human
logic and experience, and inconsistent with the
prosecution’s claim.
3. The conduct of the victim immediately following
the alleged sexual assault is of utmost importance in
establishing the truth or falsity of the charge of
rape.26 In the case at bar, the actuations of AAA after
the alleged rape is totally uncharacteristic of one who
has been raped. It is contrary to normal human
behavior for AAA to willingly go with her abuser’s
mother, and worse, to live with her abuser’s entire
family in one roof for eight (8) days sans any attempt
to escape.
It goes against the grain of human experience for a
woman who has been robbed of her honor and
chastity not to seize an opportunity to escape from the
clutches of her malefactor.27 Instead of escaping from
her abuser, AAA visited appellant’s neighbor.28 Even if
AAA had several opportunities to share her ordeal to
be rescued by her friend, Wilma, AAA inexplicably
failed and instead described the details of her marital
plans. What is truly exceptional, however, is the
testimony of AAA that she visited her grandmother
during the period of her alleged abduction. Despite
inconsistencies in her testimony as shown in the TSN,
AAA admitted the visit to her grandmother:29
Q: So you did not proceed to your grandmother’s
house, where is the house of your grandmother?
A: Km. 81.
Q: Near the Dulo?
A: A bit farther of Dulo.
Q: You rode in a jeep and the driver is your cousin?
A: No sir we rode (sic) pedicab going to my
grandmother’s place.
Q: There were no people?
A: We are used to ride (sic) pedicab.
Q: So you rode a pedicab at that time?
A: No, Sir. [Emphasis supplied]
We are mindful that appellant’s bare invocation of the
sweetheart theory cannot alone stand. It must be
corroborated by documentary, testimonial, or other
evidence. Usually, these are letters, notes, photos,
mementos, or credible testimonies of those who know
the lovers.30 There is such corroboration in this case.
To support its sweetheart theory, the defense
presented appellant and AAA’s common friend,
Enriquez, who attested to the veracity of appellant’s
claim:31
Q: When you arrived at their house did you see the
complainant AAA?
A: Yes, sir.
Q: Were you able to talk to her?
A: Yes, sir.
Q: Can you tell the court what was the subject of your
conversation?
A: She told me that she and Felimon Patentes are
getting married, saying where they will live and that
they will go into the buy and sell business.
Q: Did you notice AAA to be happy with Felimon
Patentes?
A: Yes, sir.
Q: And the second time you went to their place do you
remember what was the subject of your conversation?
A: Regarding their plan of getting married. [Emphasis
supplied]
Appellant’s neighbor, Gerondio, corroborated the
testimony:32
Q: Do you remember seeing the accused sometime on
December 5, 1998?
A: Yes, sir.
Q: Where did you see him?
A: In their house, he just arrived.
Q: Was he alone?
A: He is with AAA.
xxxx
Q: On the following day did you see again AAA?
A: Yes, sir.
Q: Where did you see her?
A: Inside their house, she was walking.
xxxx
Q: When was that when you saw her?
A: The next day, December 6, 1998.
xxxx
Q: On the succeeding days, from December 7 to 11
were you able to see AAA in the house of Felimon?
A: Yes, sir.
Q: Where did you see her?
A: In the house of the accused, Felimon.
Q: What was she doing?
A: She was cleaning the surroundings of the house and
did the laundry, and she was also going around.
Q: When you said going around or "suroy-suroy"
where did she go around?
A: She also went to our house.
Q: Were you able to talk to her personally?
A: Yes, sir.
xxxx
Q: What did you observe from them?
A: As if they are married.
Q: What were the actions that you saw in them?
A: They were loving with each other.
Q: What do you mean by loving?
A: They are close to each other, they joke, and Felimon
would place his arm on the shoulder of AAA.
[Emphasis supplied]
A conviction in a criminal case must be supported by
proof beyond reasonable doubt, which means a moral
certainty that the accused is guilty; the burden of proof
rests upon the prosecution.33 In the case at bar, the
prosecution has failed to discharge its burden of
establishing with moral certainty the truthfulness of
the charge that appellant had carnal knowledge of
AAA against her will using threats, force or
intimidation.
The testimony of the offended party in crimes against
chastity should not be received with precipitate
credulity for the charge can easily be
concocted.34 Courts should be wary of giving undue
credibility to a claim of rape, especially where the sole
evidence comes from an alleged victim whose charge
is not corroborated and whose conduct during and
after the rape is open to conflicting
interpretations.35 While judges ought to be cognizant
of the anguish and humiliation that a rape victim
undergoes as she seeks justice, they should equally
bear in mind that their responsibility is to render
justice based on the law.36
The numerous inconsistencies in the testimony of
private complainant have created reasonable doubt in
Our mind.1âwphi1In view of the foregoing
considerations, the presumption of innocence in favor
of appellant must be upheld considering that the
evidence brought forth in trial falls short of the
quantum of proof to support a conviction.37
WHEREFORE, in view of the foregoing, the Decision
of the Court of Appeals, finding appellant FELIMON
PATENTES y ZAMORA guilty beyond reasonable
doubt of Forcible Abduction with Rape, is REVERSED
and SET ASIDE. FELIMON PATENTES y ZAMORA
is ACQUITTED on the ground of reasonable doubt.
His immediate release from confinement is hereby
ordered unless he is being detained for some other
charge.
SO ORDERED.
JOSE PORTUGAL PEREZ
Associate Justice
WE CONCUR:
ANTONIO T. CARPIO
Associate Justice
 MARIANO C. DEL
ARTURO D. BRION
CASTILLO
Associate Justice
Associate Justice
ESTELA M. PERLAS-BERNABE
Associate Justice
ATTESTATION
I attest that the conclusions in the above Decision had
been reached in consultation before the case was
assigned to the writer of the opinion of the Court's
Division.
ANTONIO T. CARPIO
Associate Justice
Chairperson, Second Division
CERTIFICATION
Pursuant to Section 13, Article VIII of the
Constitution and the Division Chairperson's
Attestation, it is hereby certified that the conclusions
in the above Decision were reached in consultation
before the case was assigned to the writer of the
opinion of the Court's Division.
MARIA LOURDES P. A. SERENO
Chief Justice
9. Sweetheart Theory: People vs. Marvin Gahi, GR No.
202976, Feb. 19, 2014

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 202976 February 19PEOPLE OF THE
PHILIPPINES, Plaintiff -Appellee,
vs.
MERVIN GAHI, Accused-Appellant.
DECISION
LEONARDO-DE CASTRO, J.:
This is an appeal from a Decision1 dated August 31,
2011 of the Court of Appeals in CA-G.R. CEB-CR.-
H.C. No. 00335, entitled People of the Philippines v.
Mervin Gahi, which affirmed the Decision2 dated
April 22, 2005 of the Regional Trial Court of Carigara,
Leyte, Branch 13 in Criminal Case Nos. 4202 and 4203.
The trial court convicted appellant Mervin Gahi of
two counts of rape defined under Article 266-A of the
Revised Penal Code.
The accusatory portions of the two criminal
Informations, both dated October 9, 2002, each
charging appellant with one count of rape are
reproduced below:
[Criminal Case No. 4202]
That on or about the 11th day of March, 2002, in the
Municipality of Capoocan, Province of Leyte,
Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, with
deliberate intent and with lewd designs and by use of
force and intimidation, armed with a knife, did then
and there willfully, unlawfully and feloniously had
carnal knowledge with (sic) [AAA3] against her will
and a 16[-]year old girl, to her damage and prejudice.4
[Criminal Case No. 4203]
That on or about the 12th day of March, 2002, in the
Municipality of Capoocan, Province of Leyte,
Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, with
deliberate intent and with lewd designs and by use of
force and intimidation, armed with a knife, did then
and there willfully, unlawfully and feloniously had
carnal knowledge with (sic) [AAA] against her will
and a 16[-]year old girl, to her damage and prejudice.5
When he was arraigned on November 4, 2002,
appellant pleaded "NOT GUILTY" to the charges
leveled against him.6 Thereupon, the prosecution and
the defense presented their evidence.
The pertinent facts of this case were synthesized by
the Court of Appeals and presented in the assailed
August 31, 2011 Decision in this manner:
The Prosecution’s Story
The following witnesses were presented by the
prosecution, who testified, as follows:
AAA is sixteen years old and a resident of x x x, Leyte.
She testified that she knows accused Mervin Gahi, the
latter being the husband of her aunt DDD.
The First Rape
AAA recounted that on March 11, 2002 at about 11:30
in the morning, she was in her grandmother BBB’s
house with her epileptic teenage cousin, CCC. At that
time BBB was out of the house to collect money from
debtors. While she was in the living room mopping
the floor, accused Mervin arrived in the house. The
latter was a frequent visitor as he used to make
charcoal in the premises. When Mervin arrived, AAA
was by her lonesome as CCC was out of the house.
AAA recounted that Mervin came near her and
instructed her to "Lie down, lie down". Fearful upon
hearing Mervin’s orders, AAA stopped mopping the
floor. Mervin, with his right hand, then held AAA’s
right arm. He pushed AAA, causing her to lose her
balance and fall on the floor. Mervin raised AAA’s
skirt and proceeded to take off her underwear. All this
time, Mervin was holding a knife with a blade of about
6 inches long, poking it at AAA’s right breast. Fearful
for her life, AAA did not resist Mervin’s initial
advances. After taking off AAA’s underwear, Mervin
went on top of her and while in that position, he took
off his shorts, inserted his penis inside her vagina and
ejaculated. AAA’s efforts to free herself from Mervin’s
hold were unsuccessful. As a result of her struggle, she
felt tired and weak. After satisfying his lust, Mervin
warned AAA to keep secret what transpired or else he
would kill her. Afraid that he would make good his
threat, AAA did not mention to anybody what
happened, even to her aunt DDD, the wife of the
accused.
The Second Rape
AAA recalled that the second rape occurred on March
12, 2002 at about three o’clock in the afternoon. On
her way to the field and with a carabao in tow, she was
met by Mervin along the foot trail. While on the foot
trail, Mervin went near AAA, prompting her to
hurriedly scamper to BBB’s house. Mervin followed
her. Once in the living room of BBB’s house, Mervin
approached AAA, poked a knife at the right side of her
body, pushed her and made her lie down. Out of fear,
she didn’t resist Mervin’s advances. He threatened and
ordered her to "keep quiet, don’t talk". Then he raised
her skirt and took off her underwear, after which, he
took off his short pants and his brief, laid himself on
top of her, and made pumping motions until he
ejaculated. Blood came out of AAA’s vagina. After the
rape, AAA cried while the accused left the house. Just
like before, she did not mention the incident to
anybody, not even to her grandmother and to her aunt
DDD, for fear that Mervin might kill them.
AAA narrated that the first person she told about her
ordeal was Lynlyn, her employer in Ormoc, where
AAA spent three months working, when the former
was able to detect her pregnancy. It was also Lynlyn
who accompanied her to the Capoocan Police Station
to report and file the case. After reporting the matter
to the police, AAA did not go back to Ormoc anymore
and later gave birth. Instead, she and her baby stayed
with the Department of Social Welfare and
Development (DSWD).
Dr. Bibiana O. Cardente, the Municipal Health Officer
of Capoocan, Leyte testified that upon the request of
the Chief of Police of Capoocan, Leyte, she attended to
AAA, a sixteen[-]year old who was allegedly raped by
the husband of her aunt. The findings of Dr. Cardente
were reduced in the form of a Medical Certificate
issued on August 23, 2002, which she also identified
and read the contents thereof in open court, as follows:
"Patient claimed that she was allegedly raped by the
husband of her aunt. The patient can’t recall the exact
date when she was raped.
Phernache – at the age of 13 years old,
Pregnancy test done at Carigara District Hospital
today at August 23, 2002.
Result: Positive for UGC, LMP-unknown
Findings: Fundal Height-1 inch above the
umbilicus compatible with 5 months pregnancy
Presentation: cephalic
FHB – RLQ"
Ofelia Pagay, a Social Welfare Officer III of the DSWD
Regional Haven, Pawing, Palo, Leyte testified that she
interviewed AAA upon the latter’s admission to their
office on August 29, 2002. Also interviewed were her
mother, the MSWD of Capoocan, Leyte and the Social
Welfare Crisis Unit of the DSWD. In her case study
report on AAA, Ofelia recommended the necessary
intervention for her because of an existing conflict in
their family.
The Version of the Defense
BBB, AAA’s 74-year old grandmother, testified that
AAA is the daughter of her son DDD and EEE. She
took custody of AAA after her parents got separated.
Along with AAA her epileptic granddaughter, CCC
was also living with them.
BBB recounted that on March 11, 2002, she was at her
house doing household chores from morning until
noon. She denied that a rape incident ever occurred at
the said date as she stayed at home the whole day and
did not chance upon Mervin at her house nor did AAA
inform her about any rape incident.
BBB also recalled that on March 12, 2002 she stayed at
home the whole day. She narrated that after having
breakfast at about seven o’clock in the morning, AAA
took a bath. She also saw AAA writing notes. At
around three o’clock in the afternoon, AAA went to
herd the carabao at the uphill portion of the place.
Later, AAA returned and stayed in the house the rest
of the afternoon. BBB again denied that a rape
occurred on that day of March 12, 2002, as she did not
see Mervin in her house. Neither did she observe any
unusual behavior on the part of AAA nor did she
receive a complaint from the latter that she was raped
by Mervin.
Filomeno Suson, 51 years old, married, a farmer and a
resident of Brgy. Visares, Capoocan, Leyte testified
that on March 11, 2002 he was with Mervin at the
copra kiln dryer situated in Sitio Sandayong, Brgy.
Visares, Capoocan, Leyte from eight o’clock in the
morning until twelve o’clock noon. Mervin was with
his wife and two children and never left the place. He
recalled that he left the place at 12:30 in the afternoon,
and returned at 1:30 in the afternoon. He saw Mervin
still processing the copra. He stayed at the dryer until
five o’clock in the afternoon and did not see Mervin
leave the place. The following day, March 12, 2002, he
went back to the dryer at eight o’clock in the morning
and saw Mervin near the copra kiln dryer regulating
the fire so that the copra will not get burned. He stayed
there until past noontime and did not see Mervin leave
the place. When he returned at one o’clock in the
afternoon, Mervin was already placing the copra
inside the sack. He stayed until five o’clock in the
afternoon. The following day, March 13, 2002, he saw
Mervin hauling the copra. He did not observe any
unusual behavior from him.
Jackie Gucela, 18 years old, single, a farm laborer and
a resident of Brgy. Lonoy, Kanaga, Leyte testified that
he and AAA were sweethearts. Jackie recounted that
the first time he got intimate and had sex with AAA
was sometime in March 2000. He recalled that the last
time he and AAA had sex was sometime in April 2002.
He admitted that it was he who got AAA pregnant.
Mervin Gahi, 35 years old, married, a farmer and a
resident of Brgy. Visares, Capoocan, Leyte denied
having been at the place of the alleged rapes on the
days asserted by the complainant. He recalled that on
March 11, 2002, he was at the area of Sandayong, Sitio
Agumayan, Brgy.
Visares, Capoocan, Leyte processing copra owned by
Mrs. Josefina Suson. He started processing copra at six
o’clock in the morning until about nine o’clock in the
evening. With him were his wife and two children,
May Jane and Mervin Jr. His landlord, Filomeno
arrived later in the morning, and stayed until twelve
o’clock noon. After having lunch at his house,
Filomeno returned at one o’clock in the afternoon.
Mervin recounted that he stopped working when he
had lunch at his nearby house with his family, and
during the intervening time, he did not leave the place
to watch over the copra. After eating his lunch, he
went back to the copra kiln drier to refuel and again
watched over the copra. He stayed there and never left
the place until nine o’clock in the evening.
On March 12, 2002, Mervin recalled that he was at the
copra kiln drier segregating the cooked copra from the
uncooked ones until nine o’clock in the morning.
When he was finished segregating, he smoked the
uncooked copra. With him were his wife and children,
and he stayed at the copra kiln dryer until six o’clock
in the evening. The only time that he left the said place
was when he had his lunch at eleven o’clock in the
morning at his house. After having his lunch, he
returned to the copra kiln drier. He admitted that he
was familiar with Brgy. Sto. Nino, Capoocan, Leyte.
Mervin testified that on March 13, 2002 at twelve
o’clock noon, he delivered the copra for weighing to
the house of his landlord at Brgy. Visares, Capoocan,
Leyte. It was his Kuya Noni (Filomino) and Ate Pensi
(Maria Esperanza) who actually received the copra,
with the latter even recording the delivery. According
to him, it was impossible for him to have raped AAA
on the alleged dates as he was at Brgy. Visares
processing copra. He argued that a mistake was
committed by AAA in accusing him considering the
similarity between his name Mervin and x x x Jack[ie]
Gucela’s nickname, Melvin, who was known to be a
suitor of AAA.
Ma. Esperanza V. Villanueva, 48 years old, married, a
housewife and a resident of Brgy. Visares, Capoocan,
Leyte testified that she knows Mervin. According to
her, Mervin was a tenant and has been working as a
copra drier for them for a couple of years. Esperanza
recalled that on March 13, 2002, Mervin and his wife
delivered copra to her house. The delivery, she said,
was also recorded by her.7 (Citations omitted.)
At the conclusion of trial, the April 22, 2005 Decision
convicting appellant was rendered by the trial court.
Dispositively, the said ruling states:
WHEREFORE, premises considered, applying Article
266-A and 266-B of the Revised Penal Code as
amended, and the amendatory provisions of R.A. 8353,
(The Anti-Rape Law of 1997), in relation to Section 11
of R.A. 7659 (The Death Penalty Law), the Court
found accused, MERVIN GAHI, GUILTY, beyond
reasonable doubt for two counts of RAPE charged
under Criminal Cases No. 4202 and 4203, and
sentenced to suffer the maximum penalty of DEATH
in both cases and to pay civil indemnity in the amount
of Seventy[-]Five Thousand (₱75,000.00) Pesos for
each case and exemplary damages in the amount of
Twenty[-]Five (₱25,000.00) Thousand Pesos for each
case, to the victim [AAA]; and pay the costs.8
The case was subsequently elevated to the Court of
Appeals. After due deliberation, the Court of Appeals
affirmed with modification the appealed decision of
the trial court in the now assailed August 31, 2011
Decision, the dispositive portion of which is
reproduced here:
WHEREFORE, premises considered, the assailed
Decision dated April 22, 2005 of the Regional Trial
Court, Eight Judicial Region, Branch 13 of Carigara,
Leyte in Criminal Case Nos. 4202 and 4203, finding
appellant Mervin Gahi guilty of two counts of Rape, is
hereby AFFIRMED with the modification that
accused-appellant is sentenced to suffer the penalty of
reclusion perpetua for each count. Further, he is
ordered to pay AAA the amount of Php50,000.00 for
each count of rape as moral damages.9
Having been thwarted twice in his quest for the courts
to proclaim his innocence, appellant comes before this
Court for one last attempt at achieving that purpose.
In his Brief, appellant submits a single assignment of
error for consideration, to wit:
THE TRIAL COURT ERRED IN CONVICTING THE
ACCUSED-APPELLANT OF TWO COUNTS OF
RAPE DESPITE FAILURE OF THE PROSECUTION
TO PROVE HIS GUILT BEYOND REASONABLE
DOUBT.10
Appellant maintains that AAA’s incredible and
inconsistent testimony does not form sufficient basis
for him to be convicted of two counts of rape. He
argues that his testimony along with that of other
defense witnesses should have been accorded greater
weight and credibility. He faults the trial court for
ignoring the extended time period between the alleged
rapes and the birth of AAA’s baby; and for disbelieving
Jackie Gucela’s testimony which stated that the latter
was AAA’s lover and the father of AAA’s child,
contrary to AAA’s claim that the baby was the fruit of
appellant’s unlawful carnal congress with her. He also
insists that his alibi should have convinced the trial
court that he is innocent because he was at another
place at the time the rapes were allegedly committed
by him. On the strength of these assertions, appellant
believes that he is deserving of an acquittal that is long
overdue because the prosecution failed miserably to
prove his guilt beyond reasonable doubt.
We are not persuaded.
Article 266-A of the Revised Penal Code defines when
and how the felony of rape is committed, to wit:
Rape is committed –
1) By a man who shall have carnal knowledge of a
woman under any of the following circumstances:
(a) Through force, threat or intimidation;
(b) When the offended party is deprived of reason
or is otherwise unconscious;
(c) By means of fraudulent machination or grave
abuse of authority;
 (d) When the offended party is under twelve (12)
years of age or is demented, even though none of
the circumstances mentioned above be present.
2) By any person who, under any of the circumstances
mentioned in paragraph 1 hereof, shall commit an act
of sexual assault by inserting his penis into another
person’s mouth or anal orifice, or any instrument or
object, into the genital or anal orifice of another
person.
According to the prosecution, appellant used force or
intimidation in order to successfully have unlawful
carnal knowledge of AAA. To be exact, appellant is
alleged to have utilized, on two occasions, a knife and
the threat of bodily harm to coerce AAA into
submitting to his evil sexual desires. A careful perusal
of AAA’s testimony in open court reveals that she was
clear and straightforward in her assertion that
appellant raped her twice in the manner described by
the prosecution. We sustain as proper the appellate
court’s reliance on the following portions of AAA’s
testimony regarding the first instance of rape:
[PROSECUTOR MERIN]
Q And you were alone in the house of your lola?
A Yes, sir.
Q And when you were alone in your lola’s house at the
sala, what did this accused do to you?
A He suddenly went inside the sala and at that time I
was mopping the floor.
Q What did you use in mopping the floor?
A Coconut husk.
Q And when the accused suddenly appeared [at] the
sala, while you were mopping the floor with a coconut
husk, what did the accused do next, tell this court?
A He said, lie down, lie down.
Q You mean he was fronting at (sic) you?
A Yes, sir.
Q And what did you do with his instruction to let you
lie down?
A Nothing.
Q You mean you stop[ped] mopping the floor?
A Yes, sir.
Q Now, after you stop[ped] mopping, what next
transpired if any, tell this court?
A He held me and let me lie down.
xxxx
Q And after you were laid down by the accused and
you already [were lying] on the floor, what next
transpired if any, tell the court?
A He raised my skirt and took off my panty.
Q What did you do when he tried to raise your skirt
and took off your panty?
A I was trembling.
Q Why were you trembling?
A Because I was afraid.
Q Why were you afraid of Mervin Gahi x x x?
A Because he held something.
Q What was he holding?
A A knife.
xxxx
Q And what did he do with that knife he was holding?
A It was poked [at] me.
Q What part of your body was poked upon (sic)?
A (Witness indicated her right breast)
xxxx
Q While the accused was on top of you and took off
his pants, what did the accused do upon your person?
A He inserted his penis.
Q You mean his penis was inserted [in]to what?
A To my vagina.
Q Now, how did you feel when he tried to insert his
penis [in]to your vagina?
A I became weak.11
As for the second instance of rape, we agree with the
lower courts that AAA was likewise clear and
straightforward in recounting that:
[PROSECUTOR MERIN]
Q Where were you on March 12, 2002 when raped
again by the accused?
A I was tethering a carabao.
xxxx
Q When you were trying to bring that carabao what
happened tell the court?
A At that time when I was able to bring the carabao to
be fed I saw him.
Q Whereat did you see him?
A He was on the foot trail.
xxxx
Q When you saw the accused on your way to tether
the carabao of your lola, what did the accused do [to]
you?
A He drew nearer to me.
Q After he drew nearer to you, what did he do next?
A He poked a knife [at] me.
xxxx
Q After you were poked by that knife by the accused,
what else happened?
A He said, "Keep quiet, don’t talk."
Q After he said that what next happened?
A He made me to (sic) lie.
Q Whereat?
A When he poked his knife at me he held my upper
arms.
Q Were you already lying?
A He pushed me and I was made to lie.
Q You mean on the roadside?
A No, at the sala of the house of my grandmother.
Q You mean you were led to the house of your Lola?
A No sir.
Q Where were you brought?
A At that time when I was able to bring the carabao to
be [fed] when I saw him I ran back to the house of my
grandmother.
xxxx
Q And when you were already inside the house of
your Lola what happened, tell the Court?
A He was already there.
xxxx
Q After your skirt was raised up by the accused, what
did the accused do next, tell the Court?
A He took off my panty.
xxxx
Q Did you not prevent Mervin from taking off your
panty?
A No sir.
Q Why did you not wrestle out?
A I am afraid because of the knife.
xxxx
Q After he took off his brief, what did accused do, tell
the Court?
A He laid himself on top of me.
Q After he laid himself on top of you, what else did he
do?
A He inserted his penis [in]to my vagina.
xxxx
Q Was he successful in inserting his penis [in]to your
vagina?
A Yes sir.
Q After inserting his penis [in]to your vagina, what
else did accused do to his penis?
A He kept on pumping himself, meaning making a
going and out movement.
Q You mean he was making in and out movement of
(sic) your vagina?
A Yes, sir.
Q Was he able to reach ejaculation?
A Blood.
Q You mean blood came out?
A Yes, sir.
Q From where?
A From my vagina.12
Appellant questions the weighty trust placed by the
trial court on the singular and uncorroborated
testimony of AAA as the basis for his conviction. On
this point, we would like to remind appellant that it is
a fundamental principle in jurisprudence involving
rape that the accused may be convicted based solely on
the testimony of the victim, provided that such
testimony is credible, natural, convincing and
consistent with human nature and the normal course
of things.13
It is likewise jurisprudentially settled that when a
woman says she has been raped, she says in effect all
that is necessary to show that she has been raped and
her testimony alone is sufficient if it satisfies the
exacting standard of credibility needed to convict the
accused.14 Thus, in this jurisdiction, the fate of the
accused in a rape case, ultimately and oftentimes,
hinges on the credibility of the victim’s testimony.
In this regard, we defer to the trial court’s assessment
of the credibility of AAA’s testimony, most especially,
when it is affirmed by the Court of Appeals. In People
v. Amistoso,15 we reiterated the rationale of this
principle in this wise:
Time and again, we have held that when it comes to
the issue of credibility of the victim or the prosecution
witnesses, the findings of the trial courts carry great
weight and respect and, generally, the appellate courts
will not overturn the said findings unless the trial
court overlooked, misunderstood or misapplied some
facts or circumstances of weight and substance which
will alter the assailed decision or affect the result of
the case. This is so because trial courts are in the best
position to ascertain and measure the sincerity and
spontaneity of witnesses through their actual
observation of the witnesses’ manner of testifying,
their demeanor and behavior in court. Trial judges
enjoy the advantage of observing the witness’
deportment and manner of testifying, her "furtive
glance, blush of conscious shame, hesitation, flippant
or sneering tone, calmness, sigh, or the scant or full
realization of an oath" – all of which are useful aids for
an accurate determination of a witness’ honesty and
sincerity. Trial judges, therefore, can better determine
if such witnesses are telling the truth, being in the
ideal position to weigh conflicting testimonies. Again,
unless certain facts of substance and value were
overlooked which, if considered, might affect the
result of the case, its assessment must be respected, for
it had the opportunity to observe the conduct and
demeanor of the witnesses while testifying and detect
if they were lying. The rule finds an even more
stringent application where the said findings are
sustained by the Court of Appeals.
Anent the inconsistent statements made by AAA in
her testimony which were pointed out by appellant,
we agree with the assessment made by the Court of
Appeals that these are but minor discrepancies that do
little to affect the central issue of rape which is
involved in this case. Instead of diminishing AAA’s
credibility, such variance on minor details has the net
effect of bolstering the truthfulness of AAA’s
accusations. We have constantly declared that a few
discrepancies and inconsistencies in the testimonies of
witnesses referring to minor details and not in
actuality touching upon the central fact of the crime
do not impair the credibility of the witnesses because
they discount the possibility of their being rehearsed
testimony.16
Notable is the fact that no ill motive on the part of
AAA to falsely accuse appellant was ever brought up
by the defense during trial. This only serves to further
strengthen AAA’s case since we have consistently held
that a rape victim’s testimony as to who abused her is
credible where she has absolutely no motive to
incriminate and testify against the accused.17 It is also
equally important to highlight AAA’s young age when
she decided to accuse her kin of rape and go through
the ordeal of trial. In fact, when she painfully
recounted her tribulation in court, she was just at the
tender age of sixteen (16) years old.18 Jurisprudence
instructs us that no young woman, especially of tender
age, would concoct a story of defloration, allow an
examination of her private parts, and thereafter
pervert herself by being subjected to public trial, if she
was not motivated solely by the desire to obtain justice
for the wrong committed against her.19
In a bid to exculpate himself, appellant argues that he
could not have possibly been guilty of rape because the
time period between the rape incidents and the birth
of the alleged fruit of his crime is more than the
normal period of pregnancy. He also points out that
defense witness Jackie Gucela’s admission that he was
AAA’s lover and the father of her child should suffice
to negate any notion that he raped AAA twice. Lastly,
he puts forward the defense of alibi.
We are not convinced by appellant’s line of reasoning
which appears ostensibly compelling, at the outset, but
is ultimately rendered inutile by jurisprudence and the
evidence at hand.
With regard to appellant’s first point, we express our
agreement with the statement made by the Court of
Appeals that it is not absurd nor contrary to human
experience that AAA gave birth ten (10) months after
the alleged sexual assault as there may be cases of long
gestations. In any event, we dismiss appellant’s
contention as immaterial to the case at bar because
jurisprudence tells us that impregnation is not an
element of rape.20 This rule was eloquently explained
in People v. Bejic21:
It is well-entrenched in our case law that the rape
victim’s pregnancy and resultant childbirth are
irrelevant in determining whether or not she was
raped. Pregnancy is not an essential element of the
crime of rape. Whether the child which the rape
victim bore was fathered by the accused, or by some
unknown individual, is of no moment. What is
important and decisive is that the accused had carnal
knowledge of the victim against the latter’s will or
without her consent, and such fact was testified to by
the victim in a truthful manner. (Citation omitted.)
Likewise, we assign no significance to the testimony of
defense witness Jackie Gucela. Firstly, AAA
categorically denied that Jackie Gucela was her
boyfriend22 or that she had sexual relations with him
or any other person other than appellant near the time
of the rape incidents at issue.23 For the sweetheart
theory to be believed when invoked by the accused,
convincing evidence to prove the existence of the
supposed relationship must be presented by the
proponent of the theory. We elucidated on this
principle in People v. Bayrante,24 to wit:
For the ["sweetheart"] theory to prosper, the existence
of the supposed relationship must be proven by
convincing substantial evidence. Failure to adduce
such evidence renders his claim to be self-serving and
of no probative value. For the satisfaction of the Court,
there should be a corroboration by their common
friends or, if none, a substantiation by tokens of such
a relationship such as love letters, gifts, pictures and
the like. (Citation omitted.)
In the present case, although it is a person other than
the accused who is claiming to be the victim’s
sweetheart and the father of her child, such an
assertion must nonetheless be believably
demonstrated by the evidence.
The defense failed to discharge the burden of proving
that AAA and Jackie Gucela had any kind of romantic
or sexual relationship which resulted in AAA’s
pregnancy. We quote with approval the discussion
made by the Court of Appeals on this matter:
Like the trial court, We have our reservations on
[Jackie]’s credibility.1âwphi1 AAA, from the outset,
has denied any romantic involvement with [Jackie].
On the other hand, to prove his claim that they were
sweethearts, [Jackie] presented three love letters
purportedly authored by AAA. An examination of the
contents of the letters however fails to indicate any
intimate relations between AAA and [Jackie].
Nowhere in the contents of the said letters did AAA
even profess her love for [Jackie]. In the first letter,
[Jackie] maintained that AAA signed the letter as
"SHE" to hide her identity. Other than such assertion,
he however failed to establish by any conclusive proof
that the "SHE" and AAA were one and the same
person. Neither did he explain if he was the "Boy"
being alluded to in the first letter. The second letter,
which was also unsigned by AAA, was a poem written
by Joyce Kilmer entitled Trees, and the third letter
although vague as to its contents, does not appear to be
a love letter at all. Our inevitable conclusion: the
letters are not love letters at all between AAA and
[Jackie]. Even if We were to assume for the sake of
argument that [Jackie] fathered AAA’s child, We are
hard pressed to find malice or any ill motive on the
part of AAA to falsely accuse no less than her uncle, if
the same was not true. At most, We believe that
[Jackie]’s testimony is a desperate attempt on his part
to let Mervin off the hook, so to speak.25 (Citations
omitted.)
In any event, even assuming for the sake of argument
that AAA had a romantic attachment with a person
other than the accused at the time of the rape incidents
or thereafter, this circumstance would not necessarily
negate the truth of AAA’s statement that the
appellant, her aunt’s husband, twice had carnal
knowledge of her through force and intimidation and
without her consent.
We are similarly unconvinced with appellant’s
defense of alibi. We have consistently held that alibi is
an inherently weak defense because it is easy to
fabricate and highly unreliable.26 Moreover, we have
required that for the defense of alibi to prosper, the
appellant must prove that he was somewhere else
when the offense was committed and that he was so
far away that it was not possible for him to have been
physically present at the place of the crime or at its
immediate vicinity at the time of its commission.27
In the case at bar, the testimony of defense witness
Filomeno Suson made known to the trial court that the
distance between the scene of the crime and the copra
kiln dryer where appellant claimed to have been
working the entire time during which the incidents of
rape occurred can be traversed in less than an
hour.28 Thus, it was not physically impossible for
appellant to be at the locus criminis on the occasion of
the rapes owing to the relatively short distance. This
important detail coupled with AAA’s positive and
categorical identification of appellant as her rapist
demolishes appellant’s alibi since it is
jurisprudentially-settled that alibi and denial cannot
prevail over the positive and categorical testimony and
identification of an accused by the complainant.29
Having affirmed the factual bases of appellant’s
conviction for two (2) counts of simple rape, we now
progress to clarify the proper penalties of
imprisonment and damages that should be imposed
upon him owing to the conflicting pronouncements
made by the trial court and the Court of Appeals. To
recall, the Court of Appeals downgraded the penalty
imposed on appellant from death (as decreed by the
trial court) to reclusion perpetua. It has been
established that appellant committed the
aforementioned felonies with the use of a deadly
weapon which according to Article 266-B, paragraph
2 of the Revised Penal Code30 is punishable by
reclusion perpetua to death. There being no
aggravating circumstance present in this case, the
proper penalty of imprisonment should be reclusion
perpetua for each instance of rape.
It is worth noting that appellant is an uncle by affinity
of AAA.
Following the 5th paragraph (1) of Article 266-B of the
Revised Penal Code,31 a relationship within the third
degree of consanguinity or affinity taken with the
minority of AAA would have merited the imposition
of the death penalty. However, no such close
relationship was shown in this case as accused appears
to be the husband of AAA’s father’s cousin. In any
case, the death penalty has been abolished by the
enactment of Republic Act No. 9346 which also
mandated that the outlawed penalty be replaced with
reclusion perpetua. A qualifying or aggravating
circumstance, if properly alleged and proven, might
not have the effect of changing the term of
imprisonment but it would, nevertheless, be material
in determining the amount of pecuniary damages to be
imposed.
Thus, in view of the foregoing, we affirm the penalty
imposed by the Court of Appeals which was reclusion
perpetua for each conviction of simple rape. The
award of moral damages in the amount ₱50,000.00 is
likewise upheld. However, the award of civil
indemnity should be reduced from ₱75,000.00 to
₱50,000.00 in line with jurisprudence.32For the same
reason, the award of exemplary damages should be
increased from ₱25,000.00 to ₱30,000.00.33Moreover,
the amounts of damages thus awarded are subject
further to interest of 6% per annum from the date of
finality of this judgment until they are fully paid.34
WHEREFORE, premises considered, the Decision
dated August 31, 2011 of the Court of Appeals in CA-
G.R. CEB-CR.-H.C. No. 00335, affirming the
conviction of appellant Mervin Gahi in Criminal Case
Nos. 4202 and 4203, is hereby AFFIRMED with
MODIFICATIONS that:
(1) The civil indemnity to be paid by appellant
Mervin Gahi is decreased from Seventy-Five
Thousand Pesos (₱75,000.00) to Fifty Thousand
Pesos (₱50,000.00);
(2) The exemplary damages to be paid by appellant
Mervin Gahi is increased from Twenty-Five
Thousand Pesos (₱25,000.00) to Thirty Thousand
Pesos (₱30,000.00); and
(3) Appellant Mervin Gahi is ordered to pay the
private offended party interest on all damages at
the legal rate of six percent ( 6%) per annum from
the date of finality of this judgment.
No pronouncement as to costs.
SO ORDERED.
TERESITA J. LEONARDO-DE CASTRO
Associate Justice
WE CONCUR:
MARIA LOURDES P. A. SERENO
Chief Justice
Chairperson
MARTIN S.
LUCAS P. BERSAMIN
VILLARAMA, JR.
Associate Justice
Associate Justice
BIENVENIDO L. REYES
Associate Justice
CERTIFICATION
Pursuant to Section 13, Article VIII of the
Constitution, I certify that the conclusions in the
above Decision had been reached in consultation
before the case was assigned to the writer of the
opinion of the Court's Division.
MARIA LOURDES P. A. SERENO
Chief Justice
MURDER

10. People vs. Larry Torres, GR No. 190317, Aug. 22,

2011

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 190317 August 22, 2011
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs.
LARRY TORRES, SR., Accused-Appellant.
DECISION
VELASCO, JR., J.:
This is an appeal from the September 24, 2009
Decision of the Court of Appeals (CA) in CA-G.R. CR-
H.C. No. 02630, which affirmed the August 18, 2006
Decision of the Regional Trial Court (RTC), Branch 87
in Rosario, Batangas, in Criminal Case No. RY2K-086.
Accused-appellant was convicted of Murder.
The Facts
An Information charged accused Larry Torres, Sr.
(Torres, Sr.), as follows:
That on or about the 19th day of January, 2000, at
about 9:00 [in the evening], at Barangay Libato,
Municipality of San Juan, Province of Batangas,
Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, armed
with an unlicensed short firearm, cal. 38 with intent
to kill, with treachery and without any justifiable
cause, did then and there willfully, unlawfully and
feloniously attack, assault and shoot with the said
firearm one Michael M. Santonia, suddenly and
without warning, thereby inflicting upon the latter [a]
gunshot wound on his head, which directly caused his
death.
Version of the Prosecution
At the trial, the prosecution presented Mitchell
Santonia, Romeo Santonia, and Gregorio Carandang
(Carandang) as witnesses.
Mitchell Santonia, brother of Michael Santonia
(Santonia), testified that accused is their neighbor in
Barangay Libato, San Juan, Batangas. On the night of
January 19, 2000, he was with Santonia and several
others at the home of Liberato Perez (Perez). Accused
was also at the home of Perez and he was drinking
with Perez, Carandang and Venancio Perez. Santonia,
on the other hand, was playing pool with Larry Torres,
Jr. (Torres, Jr.), Goring Carandang, and a few others.
Accused approached Santonia and offered him a drink,
which the latter accepted. Santonia then resumed
playing pool. Shortly after, Mitchell Santonia heard
Santonia and accused having an argument. Mitchell
Santonia pulled his brother aside and told him that
they should head home. Thereafter, the brothers
started to leave the premises. On their way out of the
house, Mitchell Santonia heard a gunshot while his
back was turned. He looked back when he sensed that
his brother was falling over. He then saw the accused
at an arm’s length away holding a .38 caliber gun. He
noticed blood oozing from his brother’s head when he
fell to the ground. Accused pointed the gun at Mitchell
Santonia and a struggle ensued for possession of the
gun. They tumbled to the ground then Torres, Jr. tried
to hit Mitchell Santonia with a broken plate. Venancio
Perez helped Mitchell Santonia extricate himself by
taking hold of the accused. Hurriedly, Mitchell
Santonia ran to their house located a few meters away
and told his parents what had just occurred.1
Mitchell Santonia rushed back to Perez’s house with
his parents. Santonia was still lying on the ground
when they arrived. They brought him to San Juan
District Hospital in San Juan, Batangas. The doctors
pronounced Santonia as dead on arrival.2
Upon stipulation the testimony of Santonia’s father,
Romeo Santonia, was dispensed with and the
prosecution and the defense admitted certain facts he
was going to testify on:
 (1) That the victim was brought to San Juan
District Hospital by his family on January 19, 2000
at around 9:00 in the evening.
(2) That the family spent PhP 20,000 as a result of
Michael’s hospitalization; and
(3) Santonia was 24 years old at the time of his
death and earning PhP 25,000 a month as a
contract worker.3
Carandang corroborated the testimony of Mitchell
Santonia when he said that after witnessing the
accused and Santonia arguing, he advised them to
defer for the next day what they were fighting about.
He thereafter advised Santonia to go home. He
testified that he heard a gunshot as the Santonia
brothers were on their way out of the house. He saw
the accused holding a short gun while just an arm’s
length from Santonia. He added that he was two arms’
length away from Santonia when the latter fell down.
Fearing for his safety, Carandang left after seeing
Santonia lying on the ground.4
The prosecution and defense entered into a stipulation
on the existence and authenticity of Santonia’s Death
Certificate and Post-Mortem Examination issued by
Dr. Maria Divina Duque. Her testimony was thus
dispensed with.5
Version of the Defense
The defense offered the sole testimony of the accused.
He testified that he was drinking at Perez’s house on
January 19, 2000 at around 6:00 in the evening. He was
drinking with Goring Carandang, Raul Santoria, and
Ben Perez while watching a game of pool. The accused
said that the Santonia brothers arrived later on
together with the accused’s son, Torres, Jr. He alleged
that half an hour after they arrived, Santonia poked a
gun at him while he was about to take a shot of
alcohol. According to him, Santonia had his right hand
on the firearm so he tried to stop Santonia by placing
his hand on the former’s right hand. The gun fired
while the accused and Santonia were struggling for it.
Accused then noticed that Santonia had been hit.
Upon further questioning, the accused reiterated that
he did not have any gun. He added that he had a good
relationship with the Santonia brothers. 6
Ruling of the Trial Court
The RTC found the accused guilty of the crime
charged. It was convinced of the accused’s guilt by the
prosecution witnesses’ positive identification of
accused and their credible testimonies. It gave full
faith and credit to their testimonies as these
corroborated each other on material points. The trial
court noted that the accused’s defense of denial was
not supported by any other evidence and was weak in
the face of the positive evidence established by the
prosecution.
The trial court ruled that treachery was present in the
killing of Santonia, since it was proved that Santonia,
with his back turned, was suddenly shot without
warning as he was about to leave the premises.
The dispositive portion of the RTC Decision dated
August 18, 2006 reads:
WHEREFORE, in view of the foregoing
considerations, the Court finds the accused GUILTY
beyond reasonable doubt of the crime of MURDER
and hereby sentences him to suffer the following
penalties:
1. to suffer the penalty of imprisonment of
Reclusion perpetua and;
2. to pay the heirs of the victim:
a. P200,000.00 as actual damages;
b. P50,000.00 as indemnity for death;
c. P4,479,600.00 as loss of earning capacity of the
victim.7
Ruling of the Appellate Court
On appeal, accused argued that the trial court erred in
finding him guilty beyond reasonable doubt of
murder. He also averred that treachery was
incorrectly appreciated as a qualifying circumstance.
On September 24, 2009, the CA affirmed accused-
appellant’s conviction. According to the appellate
court, proof beyond reasonable doubt was established
by the prosecution in its presentation of documentary
and testimonial evidence. The elements of murder
were proved by the Certificate of Death of the victim,
the Post-Mortem Report, and the eyewitness accounts
of Mitchell Santonia and Carandang.
Disagreeing with the accused, the CA held that
treachery was correctly appreciated by the trial court.
The victim, at the time of the attack, had his back
turned and was unarmed, leaving him unable to
defend himself. He was shot in the head with no
warning. The appellate court consequently concluded
that accused consciously and deliberately adopted the
particular means, method and form of attack he used
in committing the crime.
On the claim of self-defense, the appellate court ruled
that none of its requisites was present. It also modified
the trial court’s award of damages, as no documentary
evidence was presented to substantiate the loss of
earning capacity of the victim. Moral and exemplary
damages were likewise awarded to the victim’s heirs.
The CA, thus, disposed of the case as follows:
WHEREFORE, premises considered, the appeal is
DENIED. The Decision dated 18 August 2006 of the
Regional Trial Court of Rosario, Batangas, Branch 87
in Crim. Case No. RY2K-086 finding accused-
appellant Larry Torres, Sr. guilty beyond reasonable
doubt of the crime of Murder under Article 248 of the
Revised Penal Code, as amended, and sentencing him
to suffer the penalty of reclusion perpetua is
AFFIRMED with MODIFICATION in that the award
of P4,479,600.00 as loss of earning capacity of the
victim is DELETED, and in addition to P50,000.00 as
civil indemnity for death and P200,000.00 as actual
damages, to be paid by accused-appellant to the heirs
of the victim Michael Santonia y Magnaye, accused-
appellant is further ORDERED to pay the heirs of the
victim P50,000.00 as moral damages, P25,000.00 as
exemplary damages.8
The Issues
I
Whether the CA erred in finding that the guilt of
accused-appellant was proven beyond reasonable
doubt.
II
Whether the CA erred in appreciating the qualifying
circumstance of treachery.
The Ruling of this Court
We affirm accused-appellant’s conviction.
Culpability of Accused-appellant Established
Murder, according to Article 248 of the Revised Penal
Code, is committed as follows:
Any person who, not falling within the provisions of
Article 246, shall kill another, shall be guilty of murder
and shall be punished by reclusion perpetua, to death
if committed with any of the following attendant
circumstances:
1. With treachery, taking advantage of superior
strength, with the aid of armed men, or employing
means to weaken the defense, or of means or persons
to insure or afford impunity.
The elements of the crime of murder are: (1) that a
person was killed; (2) that the accused killed that
person; (3) that the killing was attended by any of the
qualifying circumstances mentioned in Art. 248 of the
Revised Penal Code; and (4) that the killing is not
parricide or infanticide.9 Treachery was alleged in the
information as qualifying circumstance for the charge
of murder.
The charge of murder was established by the
prosecution through its documentary and testimonial
evidence. Santonia’s death and the treachery that
qualified the killing to murder were established.
Santonia was shown to have died of internal
hemorrhage caused by a gunshot wound.10 The person
who caused the gunshot wound was positively
identified as the accused-appellant. The trial court
noted that Mitchell Santonia and Carandang, the
prosecution witnesses, both gave a thorough account
of the incident at Perez’s house. Their testimonies on
how accused-appellant shot Santonia from behind
materially corroborated each other. They both
testified that Santonia and Mitchell Santonia were on
their way out of Perez’s house when they heard a
gunshot. Santonia then fell down and it was accused-
appellant whom they saw holding a gun, showing
beyond doubt that he is the killer. All the elements of
the crime of murder were duly proved.
For his defense, accused-appellant argues that the
prosecution was not able to prove through its evidence
the presence of treachery which qualified the killing
of Santonia to murder. He maintains that treachery did
not attend the killing of Santonia, because there was
an altercation between him and the victim, making it
impossible for the latter not to have been forewarned
of any danger to himself. He avers that "an attack from
behind is not necessarily treacherous unless it appears
that the method of attack was adopted by the accused
deliberately with a special view to the
accomplishment of the act without any risk to the
assailant from the defense that the party assaulted may
make."11 He further avers that his conviction must
depend on the weight of the evidence of the
prosecution and not on the weakness of the evidence
for the defense.
The qualifying circumstance of treachery is present
when the offender commits any of the crimes against
persons, employing means, methods or forms in its
execution which tend directly and especially to ensure
its execution, without risk to himself or herself arising
from any defense which the offended party might
make.12 The elements of treachery are: (1) the
employment of means of execution that gives the
person attacked no opportunity to defend himself or
to retaliate; and (2) the means of execution was
deliberate or consciously adopted.13
That the killing of Santonia was attended by the
qualifying circumstance of treachery under Art. 248 of
the Revised Penal Code was adequately proved. As
observed by the trial court, Santonia was not afforded
any means of defending himself or an opportunity to
retaliate. We agree with the Office of the Solicitor
General in its argument14that the attack on Michael
was sudden, unexpected and without warning. Before
the shooting, Mitchell Santonia had already convinced
his brother to go home and they were on their way out
of Perez’s house. Santonia, thus, had his defenses down
and had no reason to feel that his life was in danger.
He could not have protected or defended himself as his
back was turned when he was suddenly shot from
behind. He could not have prepared himself for an
attack as he had no inkling of what was about to occur.
He had heeded the advice that he should just defer
arguing with accused-appellant and headed home
instead. As shown by the testimony of Carandang,
accused-appellant’s act of shooting Santonia was so
swift that no one had any time to react or try to stop
the attack. Clearly, the strategy employed by accused-
appellant and the means he used to accomplish the act
ensured that the killing of Santonia would be without
risk to himself.1avvphi1
As to the issue raised on the weight of the
prosecution’s evidence, the matter boils down to the
credibility of the witnesses against accused-appellant.
The assessment of the credibility of witnesses and their
testimonies is a matter best undertaken by the trial
court because of its unique opportunity to observe the
witnesses firsthand and note their demeanor, conduct
and attitude under grilling examination.15 We adhere
to the rule that when the trial court’s findings have
been affirmed by the appellate court, said findings are
generally conclusive and binding upon this
Court,16 unless the trial court had overlooked,
disregarded, misunderstood, or misapplied some fact
or circumstance of weight and significance which, if
considered, would have altered the result of the
case.17 An examination of the records shows that none
of the aforementioned circumstances applies.
The trial and appellate courts correctly ruled that
accused-appellant’s uncorroborated testimony is weak
in light of the positive identification by two credible
witnesses. The defense noticeably failed to present any
of the other men present at their drinking session who
could corroborate accused-appellant’s version. Even
accused-appellant’s son, who was also present at the
time of the incident, did not provide any supporting
testimony for the defense.
The trial court said:
The Court finds no irregularity in the manner the two
prosecution witnesses testified. Their testimonies are
likewise deserving of faith and credit from the court as
[these] gave a detailed account of what transpired on
the night of the incident. The testimony of witness
Gregorio Carandang corroborated the testimony of
Mitchell (brother of the victim) on material points.
The testimon[ies] of the prosecution witnesses
deserv[e] full faith and credit.
On the other hand, the accused claims simple denial
in that he claims that he has nothing to do with the
death of Michael as the gun accidentally fired and hit
Michael when they were in the act of grappling for
[it].18
In sustaining the findings of the trial court, We uphold
settled jurisprudence that denial, like alibi, constitutes
self-serving negative evidence which cannot be
accorded greater evidentiary weight than the
declaration of credible witnesses who testify on
affirmative matters.19
Penalty Imposed
The penalty for murder absent any aggravating or
mitigating circumstance is reclusion perpetua, which
is the lesser penalty for murder in conformity with
Art. 63 of the Revised Penal Code. We affirm the
penalty imposed on accused-appellant, as neither
mitigating nor aggravating circumstance was present
in the instant case.
Damages Awarded
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.20
In cases of murder and homicide, civil indemnity and
moral damages are awarded automatically. Indeed,
such awards are mandatory without need of allegation
and proof other than the death of the victim, owing to
the fact of the commission of murder or
homicide.21 When the imposable penalty for the crime
is reclusion perpetua, the damages to be imposed are:
PhP 50,000 as civil indemnity, PhP 50,000 as moral
damages, and PhP 30,000 as exemplary
damages.22 These amounts are proper since there are
neither mitigating nor aggravating circumstances in
the commission of the crime in accordance with Art.
63 of the Revised Penal Code. Interest at the rate of
6% per annum reckoned from January 19, 2000, which
is the date of the killing, up to the finality of the
judgment should be imposed on the damages.23 In
addition, interest at 12% per annum shall be imposed
on said damages from finality of judgment until paid.
The CA awarded PhP 50,000 as civil indemnity, PhP
50,000 as moral damages, PhP 25,000 as exemplary
damages, and PhP 200,000 as actual damages.
To conform to jurisprudence, exemplary damages are
raised to PhP 30,000. The award of PhP 200,000 in
actual damages is affirmed as this was stipulated by the
parties.
WHEREFORE, the appeal is DENIED. The CA
Decision in CA-G.R. CR-H.C. No. 02630 finding
accused-appellant guilty beyond reasonable doubt of
murder is AFFIRMED with the following
MODIFICATIONS:
(1) Exemplary damages are awarded in the
increased amount of PhP 30,000;
(2) Interest at the rate of 6% per annum on the civil
indemnity and moral, actual, and exemplary
damages from January 19, 2000 up to the finality
of this Decision, and interest at 12% per annum on
said damages from date of finality of this Decision
until fully paid shall likewise be paid by accused-
appellant to the heirs of Michael Santonia.
SO ORDERED.
PRESBITERO J. VELASCO, JR.
Associate Justice
WE CONCUR:
DIOSDADO M. PERALTA
Associate Justice
 JOSE CATRAL
ROBERTO A. ABAD
MENDOZA
Associate Justice
Associate Justice
MARIA LOURDES P. A. SERENO*
Associate Justice
ATTESTATION
I attest that the conclusions in the above Decision had
been reached in consultation before the case was
assigned to the writer of the opinion of the Court’s
Division.
PRESBITERO J. VELASCO, JR.
Associate Justice
Chairperson
CERTIFICATION
Pursuant to Section 13, Article VIII of the
Constitution, and the Division Chairperson’s
Attestation, I certify that the conclusions in the above
Decision had been reached in consultation before the
case was assigned to the writer of the opinion of the
Court’s Division.
RENATO C. CORONA
Chief Justice
11. People vs. Michael Bokingo and Renante Col, GR
No. 187536, Aug. 10, 2011

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 187536 August 10, 2011
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs.
MICHAEL BOKINGO alias "MICHAEL BOKINGCO"
and REYNANTE COL, Accused-Appellants.
DECISION
PEREZ, J.:
For review is the Amended Decision1 dated 14
November 2008 of the Court of Appeals in CA-G.R.
CR-H.C. No. 00658, finding appellants Michael
Bokingco2 (Bokingco) and Reynante Col (Col) guilty as
conspirators beyond reasonable doubt of the crime of
Murder and sentencing them to suffer the penalty of
reclusion perpetua.
On 31 July 2000, an Information3 was filed against
appellants charging them of the crime of murder
committed as follows:
That on or about the 29th day of February, 2000 in the
City of Angeles, Philippines and within the
jurisdiction of this Honorable Court, the above-named
accused, conspiring and confederating together and
mutually helping each other, armed with a claw
hammer and with intent to kill by means of treachery,
evident premeditation, abuse of confidence, and
nighttime, did then and there willfully, unlawfully
and feloniously attack, assault and maul NOLI
PASION, by hitting and beating his head and other
parts of his body with said hammer, thereby inflicting
upon said NOLI PASION fatal wounds on his head and
body which caused his death.4
On arraignment, Bokingco entered a guilty plea while
Col pleaded not guilty. During the pre-trial, Bokingco
confessed to the crime charged.5
The victim, Noli Pasion (Pasion) and his wife, Elsa,
were residing in a house along Mac Arthur Highway
in Balibago, Angeles City. Pasion owned a pawnshop,
which formed part of his house. He also maintained
two (2) rows of apartment units at the back of his
house. The first row had six (6) units, one of which is
Apartment No. 5 and was being leased to Dante
Vitalicio (Vitalicio), Pasion’s brother-in-law, while
the other row was still under construction at the time
of his death. Appellants, who were staying in
Apartment No. 3, were among the 13 construction
workers employed by Pasion.6
The prosecution’s evidence show that at around 1:00
a.m. on 29 February 2000, Vitalicio was spin-drying
his clothes inside his apartment when Pasion came
from the front door, passed by him and went out of the
back door.7A few minutes later, he heard a commotion
from Apartment No. 3. He headed to said unit to
check. He peeped through a screen door and saw
Bokingco hitting something on the floor. Upon seeing
Vitalicio, Bokingco allegedly pushed open the screen
door and attacked him with a hammer in his hand. A
struggle ensued and Vitalicio was hit several times.
Vitalicio bit Bokingco’s neck and managed to push
him away. Bokingco tried to chase Vitalicio but was
eventually subdued by a co-worker. Vitalicio
proceeded to his house and was told by his wife that
Pasion was found dead in the kitchen of Apartment
No. 3. Vitalicio went back to Apartment No. 3 and saw
Pasion’s body lying flat on the kitchen floor. Pasion
and Vitalicio were brought to the hospital. Pasion
expired a few hours later while Vitalicio was treated
for his injuries.8
Elsa testified that she was in the master’s bedroom on
the second floor of the house when she heard banging
sounds and her husband’s moans. She immediately got
off the bed and went down. Before reaching the
kitchen, Col blocked her way. Elsa asked him why he
was inside their house but Col suddenly ran towards
her, sprayed tear gas on her eyes and poked a sharp
object under her chin. Elsa was wounded when she
bowed her head to avoid the tear gas.9 Col then
instructed her to open the vault of the pawnshop but
Elsa informed him that she does not know the
combination lock. Elsa tried offering him money but
Col dragged her towards the back door by holding her
neck and pulling her backward. Before they reached
the door, Elsa saw Bokingco open the screen door and
heard him tell Col: "tara, patay na siya."10 Col
immediately let her go and ran away with Bokingco.
Elsa proceeded to Apartment No. 3. Thereat, she saw
her husband lying on the floor, bathed in his own
blood.11
PO3 Quirino Dayrit (PO3 Dayrit) was stationed at
Police Station No. 4 in Barangay Salakot, Balibago,
Angeles City. At 1:20 a.m. of 29 February 2000, he
received a phone call regarding the incident. He,
together with a certain P/Insp. Maniago, proceeded to
Apartment No. 3 and conducted an investigation. He
noticed a pool of blood on the cemented floor of the
kitchen. He also saw a claw hammer with a green lead
pipe handle approximately 13 inches long near the
kitchen sink. A lead pipe measuring 40 inches and a
chisel were also found in the nearby construction site.
The police went to Angeles University Medical Center
afterwards. PO3 Dayrit saw Pasion lying in one of the
beds while Vitalicio was still loitering around the
emergency room. He approached Vitalicio and Elsa
who both informed him of the incident.12 He prepared
a police report on the same day narrating the result of
his investigation.13
Evelyn Gan, the stenographic reporter of Prosecutor
Lucina Dayaon, jotted down notes during the
preliminary investigation. She attests that Bokingco
admitted that he conspired with Col to kill Pasion and
that they planned the killing several days before
because they got "fed up" with Pasion.14
The necropsy report prepared by Dr. Joven G.
Esguerra (Dr. Esguerra), contained the following
findings:
1. Marked pallor of lips and nailbeds
2. Body in rigor mortis
3. Contusion with hematoma, right medial
infraorbital region extending to the right of the
root of the nose.
4. Contusion with hematoma, left post-auricular
region.
5. Contusion with hematoma, right angle of
mandible.
6. Contusion with hematoma, right mandibular
region.
7. Contusion with hematoma, left occipital region.
8. Contusion with hematoma, right fronto-parietal
region.
9. Contusion with hematoma, right supraorbital
region.
10. Abrasions, linear, confluent, proximal third,
right leg anterior 2 ½ x 6 ½ cm.
11. Contusion with hematoma, left shoulder, level
of head of left humerus.
12. Stab wound, anterior chest along the anterior
median line, 7 cm above the nipple line, 0.8cm
length, 0.5 cm wide and 1 cm deep, hitting and
puncturing the manubrium sterni, not entering the
thoracic cavity. Both extremities round.
13. 2 stab wounds, non-penetrating, anterior chest,
13 cm to the left of the anterior median line, 3 cm
below injury (12) 14 cm the right of the anterior
median line 4 ½ on below injury (12). Wound 0.8
cm in length, both extremities round.
14. Lacerated wound, semi-lunar shape, 3 cm
length, left shoulder.
15. Lacerated wound, right eyebrow area, C-
shaped 2 ½ cm length.
16. Lacerated wound, lateral angle, right eye, 0.8
cm length.
17. Lacerated wound, right supraorbital region,
medial aspect, 2 cm length.
18. Lacerated wound, semi-lunar, 5 cm length,
occipital region 5 cm length involving all layers of
the scalp with brain tissue seen on the gaping
wound.
19. Lacerated wound, 4 cm length, C-shaped 2 ½
cm to the right of injury (18) 1 ½ cm below, wound
involving the whole scalp.
20. Lacerated wound, left post-auricular region, C-
shaped 4 cm length, 3 cm length.
21. Lacerated wound left post-auricular region,
region of the squamous part of the left temporal
bone, C-shaped (2) 3.5 cm and 4 cm lengths.
22. Lacerated wound, right mandibular region 4
cm length, 1 cm wide.
23. Lacerated wound, stellate, 5.5 x 5 x 5 cm, right
fronto-parietal region with brain tissue out of the
gaping wound.
24. Lacerated wound, right submandibular region
0.3 x 3.5 cm.
25. Lacerated wound, right cheek 0.8 cm length.
26. Depressed, complete fracture, occipital bone
right with stellate linear extensions, with gaping,
with brain tissue maseration.
 27. Skull fracture, right fronto-parietal region,
depressed, complete, C-shaped with linear
extensions, with gaping of bone with brain tissue
maceration and expulsion.
28. Hemorrhage, massive, subdural and epidural.
29. Brain tissue damage.15
Dr. Esguerra concluded that the injuries sustained by
Pasion on his skull proved fatal.16
Appellants testified on their own behalf. Bokingco
recalled that he was sleeping in Apartment No. 3 at
around 1:20 a.m. on 29 February 2000 when he was
awakened by Pasion who appeared to be intoxicated.
The latter wanted to know why he did not see
Bokingco at the construction site on 28 February 2000.
When Bokingco replied that he just stayed at the
apartment the whole day, Pasion suddenly hit him in
the head. This prompted Bokingco to take a hammer
and hit Pasion. They both struggled and Bokingco
repeatedly hit Pasion. Bokingco escaped to Manila
right after the incident. He was subsequently arrested
in Mindanao on 11 June 2000.17 During the cross-
examination, Bokingco admitted that he harbored ill
feelings towards Pasion.18
Col confirmed that he was one of the construction
workers employed by Pasion. He however resigned on
26 February 2000 because of the deductions from his
salary. He went home to Cainta, Rizal, where he was
apprehended and brought to Camp Olivas. Upon
reaching the camp, he saw Bokingco who pointed to
him as the person who killed Pasion. He insisted that
he doesn’t know Bokingco very well.19
On 16 December 2004, the trial court rendered
judgment20 finding appellants guilty beyond
reasonable doubt of murder, viz:
WHEREFORE, the Court finds accused MICHAEL
BOKINGO alias MICHAEL BOKINGCO and
REYNANTE COL guilty beyond reasonable doubt of
the crime of MURDER, defined and penalized in Art.
248 of the Revised Penal Code, and there being the
two aggravating circumstances of nighttime and abuse
of confidence to be considered against both accused
and the mitigating circumstance of voluntary plea of
guilty in favor of accused Bokingo only, hereby
sentences each of them to suffer the penalty of
DEATH. Each accused is ordered to indemnify the
heirs of victim Noli Pasion in the amount of Seventy
five thousand pesos (P75,000.00) to pay the heirs of the
victim Seventeen thousand six hundred pesos
(P17,600.00) as actual damages, Fifteen thousand pesos
(P15,000.00) as attorney’s fees, Twenty five thousand
pesos (P25,000.00) as exemplary damages, and to pay
the costs.21
In its Decision dated 24 July 2008, the Court of
Appeals affirmed the findings of the trial court but
reduced the penalty to reclusion perpetua in view of
Republic Act No. 7659, thus:
WHEREFORE, the assailed Decision is AFFIRMED
with MODIFICATION. Accused-appellant
REYNANTE COL is found GUILTY as conspirator
beyond reasonable doubt of MURDER as defined in
Article 248 of the Revised Penal Code, as amended by
Republic Act No. 7659, qualified by treachery and
evident premeditation and with the attendant
aggravating circumstances of nighttime and abuse of
confidence, with no mitigating circumstances. The
proper imposable penalty would have been death.
However, pursuant to Republic Act No. 9346,
appellant is sentenced to suffer the penalty of
Reclusion Perpetua. Accused-appellant is further
ordered to indemnify the heirs of victim Noli Pasion
in the amount of Seventy five thousand pesos
(₱75,000.00); Fifty thousand pesos (₱50,000.00) as
moral damages; Twenty five thousand pesos
(₱25,000.00) as exemplary damages; Twenty five
thousand pesos (₱25,000.00) as temperate damages;
Fifteen thousand pesos (₱15,000.00) as attorney’s fees;
and to pay the costs.22
Appellants filed a Motion for Reconsideration23 and
called the appellate court’s attention on the omission
to rule on Bokingco’s fate when it rendered the
challenged decision. Appellants also noted the absence
of other evidence, aside from Bokingco’s admission, to
prove that conspiracy existed in the instant case.
Appellants maintained that the admission made by
Bokingco cannot be used as evidence against his
alleged co-conspirator. Appellants also took exception
to the findings of the lower courts that the aggravating
circumstances of treachery, evident premeditation,
nighttime and abuse of confidence attended the
commission of the crime.24
The Court of Appeals merely modified its Decision by
including the criminal liability of Bokingco in its
dispositive portion of its Amended Decision, which
reads:
WHEREFORE, the assailed Decision is AFFIRMED
with MODIFICATION. Accused-appellants
MICHAEL BOKINGCO and REYNANTE COL are
found GUILTY as conspirators beyond reasonable
doubt of MURDER as defined in Article 248 of the
Revised Penal Code, as amended by Republic Act No.
7659, qualified by treachery and evident
premeditation and with the attendant aggravating
circumstances of nighttime and abuse of confidence,
with no mitigating circumstances. The proper
imposable penalty would have been death. However,
pursuant to Republic Act No. 9346, the accused-
appellant are sentenced to suffer the penalty of
Reclusion Perpetua without the possibility of parole
(in accordance with Section 3 of the said law). Each of
the accused-appellants is further ordered to indemnify
the heirs of victim Noli Pasion in the amount of
Seventy five thousand pesos (₱75,000.00); Fifty
thousand pesos (₱50,000.00) as moral damages;
Twenty five thousand pesos (₱25,000.00) as exemplary
damages; Twenty five thousand pesos (₱25,000.00) as
temperate damages; Fifteen thousand pesos
(₱15,000.00) as attorney’s fees; and to pay the costs.25
Appellants filed a notice of appeal. In its Resolution
dated 26 October 2009, this Court required the parties
to submit their Supplemental Briefs within 30 days
from notice thereof if they so desire.26 Appellants
manifested that they are no longer filing a
Supplemental Brief and are adopting their arguments
in the Appellant’s Brief submitted before the Court of
Appeals.27 The appellee likewise manifested that it is
dispensing with the filing of a Supplemental
Brief.28The instant case was thus submitted for
deliberation.
In seeking the reversal of the Court of Appeals’
Amended Decision, two issues were raised: 1) whether
the qualifying circumstances were properly
appreciated to convict appellant Bokingco of murder
and 2) whether appellant Col is guilty beyond
reasonable doubt as a co-conspirator.
There is no question that Bokingco attacked and killed
Pasion. Bokingco made two (2) separate and dissimilar
admissions: first, in his extrajudicial confession taken
during the preliminary investigation where he
admitted that he and Col planned the killing of Pasion;
and second, when he testified in open court that he
was only provoked in hitting Pasion back when the
latter hit him in the head. On the basis of his
extrajudicial confession, Bokingco was charged for
murder qualified by evident premeditation and
treachery.
Appellants maintain that they could not be convicted
of murder. They question the presence of treachery in
the commission of the crime considering that no one
from the prosecution witnesses testified on how
Pasion was attacked by Bokingco. They also submit
that evident premeditation was not proven in the case.
They belittle Bokingco’s extrajudicial admission that
he and Col planned the killing. The attendance of the
aggravating circumstances of nighttime and abuse of
confidence was likewise assailed by appellants. They
aver that nighttime was not purposely sought but it
was merely co-incidental that the crime took place at
that time. Neither has trust and confidence been
reposed on appellants by the victim to aggravate the
crime by abuse of confidence. Appellants claim that
they were living in an apartment owned by Pasion, not
because the latter trusted them but because they
worked in the construction of the victim’s apartment.
On the other hand, the OSG emphasizes that the
prosecution has established that Pasion was
defenseless when fatally attacked by Bokingco and
there was no opportunity for him to defend himself
from the unexpected assaults of Bokingco. The OSG
agrees as well with the trial court’s findings that
evident premeditation, nighttime, and abuse of
confidence attended the commission of the crime.
We agree with appellants that treachery cannot be
appreciated to qualify the crime to murder in the
absence of any proof of the manner in which the
aggression was commenced. For treachery to be
appreciated, the prosecution must prove that at the
time of the attack, the victim was not in a position to
defend himself, and that the offender consciously
adopted the particular means, method or form of
attack employed by him.29 Nobody witnessed the
commencement and the manner of the attack. While
the witness Vitalicio managed to see Bokingco hitting
something on the floor, he failed to see the victim at
that time.30
Bokingco admitted in open court that he killed
Pasion.31 But the admitted manner of killing is
inconsistent with evident premeditation. To warrant a
finding of evident premeditation, the prosecution
must establish the confluence of the following
requisites: (a) the time when the offender was
determined to commit the crime; (b) an act manifestly
indicating that the offender clung to his
determination; and (c) a sufficient interval of time
between the determination and the execution of the
crime to allow him to reflect upon the consequences
of his act.32 It is indispensable to show how and when
the plan to kill was hatched or how much time had
elapsed before it was carried out. 33 In the instant case,
no proof was shown as to how and when the plan to
kill was devised. Bokingco admitted in court that he
only retaliated when Pasion allegedly hit him in the
head.34 Despite the fact that Bokingco admitted that he
was treated poorly by Pasion, the prosecution failed to
establish that Bokingco planned the attack.
It was during the preliminary investigation that
Bokingco mentioned his and Col’s plan to kill
Pasion.35 Bokingco’s confession was admittedly taken
without the assistance of counsel in violation of
Section 12, Article III of the 1987 Constitution, which
provides:
Section 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.
xxxx
(3) Any confession or admission obtained in violation
of this or Section 17 hereof shall be inadmissible in
evidence against him.
In People v. Sunga,36 we held that "the right to counsel
applies in certain pretrial proceedings that can be
deemed ‘critical stages’ in the criminal process. The
preliminary investigation can be no different from the
in-custody interrogations by the police, for a suspect
who takes part in a preliminary investigation will be
subjected to no less than the State's processes,
oftentimes intimidating and relentless, of pursuing
those who might be liable for criminal
prosecution."37 In said case, Sunga made an
uncounselled admission before the police. He later
acknowledged the same admission before the judge in
a preliminary investigation. Sunga was thrust into the
preliminary investigation and while he did have a
counsel, for the latter’s lack of vigilance and
commitment to Sunga’s rights, he was virtually denied
his right to counsel. Thus, the uncounselled admission
was held inadmissible.38 In the instant case, the
extrajudicial confession is inadmissible against
Bokingco because he was not assisted at all by counsel
during the time his confession was taken before a
judge.
The finding that nighttime attended the commission
of the crime is anchored on the presumption that there
was evident premeditation. Having ruled however
that evident premeditation has not been proved, the
aggravating circumstance of nighttime cannot be
properly appreciated. There was no evidence to show
that Bokingco purposely sought nighttime to facilitate
the commission of the offense.
Abuse of confidence could not also be appreciated as
an aggravating circumstance in this case. Taking into
account that fact that Bokingco works for Pasion, it
may be conceded that he enjoyed the trust and
confidence of Pasion. However, there was no showing
that he took advantage of said trust to facilitate the
commission of the crime.
A downgrade of conviction from murder to homicide
is proper for Bokingco for failure of the prosecution to
prove the presence of the qualifying circumstances.
Under Article 249 of the Revised Penal Code, the
applicable penalty for homicide is reclusion temporal.
There being no mitigating or aggravating
circumstance alleged and proven in the instant case,
the penalty should be applied in its medium period
pursuant to Article 64(1) of the Revised Penal Code,
which ranges from a minimum of 14 years, 8 months
and 1 day to a maximum of 17 years and 4 months.
Applying the Indeterminate Sentence Law, the
imposable penalty shall be within the range of prision
mayor in any of its periods as minimum to reclusion
temporal in its medium period as the maximum. The
range of prision mayor is from 6 years and 1 day to 12
years, while reclusion temporal in its medium period,
ranges from 14 years, 8 months and 1 day to 17 years
and 4 months. Therefore, the indeterminate penalty of
six years and one day of prision mayor as minimum to
14 years, eight months and one day of reclusion
temporal, as maximum is appropriate under the
circumstances.39 The award of exemplary damages
should be deleted as no aggravating circumstance was
proven.
Col, on the other hand, was charged as a co-
conspirator. He contends that to hold him guilty as co-
conspirator, it must be established that he performed
an overt act in furtherance of the conspiracy. Applying
Section 30, Rule 130 of the Rules of Court, Col asserts
that Bokingco’s uncounselled testimony that
appellants planned to kill Pasion bears no relevance
considering the fact that there was no other evidence
which will prove the conspiracy. Col also claims that
Elsa’s statements during trial, such as the presence of
Col inside her house and his forcing her to open the
vault of the pawnshop, as well as the alleged statement
she heard from Bokingco "Tara, patay na siya," are not
adequate to support the finding of conspiracy.
The Office of the Solicitor General (OSG) justifies
Col’s conviction of murder by conspiracy by
mentioning that starting from the declaration of
Bokingco, the victim’s wife, Elsa, also positively
declared that Col blocked and attacked her with a
knife when she tried to check on her husband. She was
left alone by Col when he was told by Bokingco that
the victim was already dead. For the OSG, appellants’
acts are indicative of conspiracy. The OSG contends
that the prosecution witnesses had no ill-motive to lie
and falsely accuse appellants of the crime of murder.
The lower courts concluded that there was conspiracy
between appellants.
We disagree.
This Court is well aware of the policy to accord proper
deference to the factual findings of the trial court,
owing to their unique opportunity to observe the
witnesses firsthand and note their demeanor, conduct,
and attitude under grueling examination.40 However,
this rule admits of exceptions, namely: 1) when the
trial court’s findings of facts and conclusions are not
supported by the evidence on record, or 2) when
certain facts of substance and value likely to change
the outcome of the case have been overlooked by the
lower court, or 3) when the assailed decision is based
on a misapprehension of facts.41 The second exception
obtains in this case.
Indeed, in order to convict Col as a principal by direct
participation in the case before us, it is necessary that
conspiracy between him and Bokingco be proved.
Conspiracy exists when two or more persons come to
an agreement to commit an unlawful act. It may be
inferred from the conduct of the accused before,
during, and after the commission of the crime.
Conspiracy may be deduced from the mode and
manner in which the offense was perpetrated or
inferred from the acts of the accused evincing a joint
or common purpose and design, concerted action, and
community of interest.42 Unity of purpose and unity in
the execution of the unlawful objective are essential to
establish the existence of conspiracy.43
As a rule, conspiracy must be established with the
same quantum of proof as the crime itself and must be
shown as clearly as the commission of the crime.44
The finding of conspiracy was premised on Elsa’s
testimony that appellants fled together after killing
her husband and the extrajudicial confession of
Bokingco.
Nobody witnessed the commencement of the attack.
Col was not seen at the apartment where Pasion was
being attacked by Bokingco. In fact, he was at Elsa’s
house and allegedly ordering her to open the
pawnshop vault, thus:
Q: Do you remember any unusual incident that
happened on that time and date when you were in
your master’s bedroom?
A: I heard a bumping sound (kalabog) at the back
portion of our building where we reside.
xxxx
Q: What did you do when you heard those sounds
in the wee hours of the morning on that day when
you were in your master’s bedroom?
A: I wondered why and I immediately went down
to the kitchen since the door of the kitchen was
directly leading to the back door or back portion of
the building where the apartments were situated.
Q: Why, on what floor is this master’s bedroom
located?
A: Second floor.
Q: Were you actually able to go down and see what
was happening?
A: Yes, sir, but I was only able to reach the stairs
leading to the kitchen. I was not able to go out of
the kitchen because I was blocked.
Q: You were blocked by whom?
A: By Reynante Col.
Q: Are you referring to the same Reynante Col, the
accused in this case?
A: Yes, sir.
xxxx
Q: You said you were blocked by Reynante Col.
How did he block you?
A: As soon as I reached the stairs, I was blocked by
Reynante Col and he was situated near the back
door of the pawnshop. There is a pawnshop in the
front portion of our residence.
Q: When you saw him near the door of your
pawnshop, did you confront him?
A: Yes, sir.
Q: How did you confront him?
A: I asked him, Reynante, what are you doing
here?
Q: What was the reaction of Reynante Col?
A: He ran towards me and sprayed something into
my eyes and he put a sharp object under my chin.
(Witness demonstrating by putting her hand under
her chin)
Q: How far was he before he attacked you?
A: Probably, from the witness stand up to the chair
of Fiscal Hilario. Maybe two steps away from him.
(Around 3 meters)
Q: Were you able to identify what this spray is and
what part of your body was hit?
A: My eyes were sprayed with tear gas.
Q: What did you feel when your eyes was (sic)
sprayed with tear gas?
A: It was "mahapdi" (painful).
Q: When you felt pain in your eyes, how were you
able to see something or a sharp weapon under
your chin?
A: Before he sprayed the tear gas to my eyes, I was
able to see him poke the sharp object under my
chin and I bowed my head a little to avoid the tear
gas. I was wounded under my chin and I felt the
sharpness of the object.45
xxxx
Q: What else happened while he was doing that to
you?
A: He sprayed tear gas in my eyes and told me to
be silent.
Q: What else, if any, did he tell you?
A: To open the combination of the vault.
Q: Did you comply to his order that you open the
combination of the vault?
A: No, sir. I do not know the combination.
Q: What vault are you referring to?
A: Vault of the pawnshop.
Q: Where is that pawnshop located with reference
to your residence?
 A: At the first floor is the pawnshop and at the back
is our kitchen.
Q: When you refused to open the vault of the
pawnshop, what did Reynante Col do about it?
A: He did not say anything.
Q: How about you, was there anything else you
did?
A: I offered him money so he will not kill me.
Q: When you offered him money so he will not kill
you, did he agree?
A: No, sir.
Q: What else happened next when he did not agree
to your offer of money?
A: He dragged me going towards the back door.46
Based on these acts alone, it cannot be logically
inferred that Col conspired with Bokingco in killing
Pasion. At the most, Col’s actuations can be equated to
attempted robbery, which was actually the initial
information filed against appellants before it was
amended, on motion of the prosecution, for murder.47
Elsa testified that she heard Bokingco call out to Col
that Pasion had been killed and that they had to leave
the place. This does not prove that they acted in
concert towards the consummation of the crime. It
only proves, at best, that there were two crimes
committed simultaneously and they were united in
their efforts to escape from the crimes they separately
committed.
Their acts did not reveal a unity of purpose that is to
kill Pasion. Bokingco had already killed Pasion even
before he sought Col. Their moves were not
coordinated because while Bokingco was killing
Pasion because of his pent-up anger, Col was
attempting to rob the pawnshop.1avvphi1
In as much as Bokingco’s extrajudicial confession is
inadmissible against him, it is likewise inadmissible
against Col, specifically where he implicated the latter
as a cohort. Under Section 28, Rule 130 of the Rules of
Court, the rights of a party cannot be prejudiced by an
act, declaration or omission of another. Res inter alios
acta alteri nocere non debet. Consequently, an
extrajudicial confession is binding only on the
confessant, is not admissible against his or her co-
accused, and is considered as hearsay against
them.48 An exception to the res inter alios acta rule is
an admission made by a conspirator. Section 30, Rule
130 of the Rules of Court provides that the act or
declaration of the conspirator relating to the
conspiracy and during its existence may be given in
evidence against the co-conspirator provided that the
conspiracy is shown by evidence other than by such
act or declaration.49 In order that the admission of a
conspirator may be received against his or her co-
conspirators, it is necessary that first, the conspiracy
be first proved by evidence other than the admission
itself; second, the admission relates to the common
object; and third, it has been made while the declarant
was engaged in carrying out the conspiracy.50 As we
have previously discussed, we did not find any
sufficient evidence to establish the existence of
conspiracy. Therefore, the extrajudicial confession has
no probative value and is inadmissible in evidence
against Col.
Bokingco’s judicial admission exculpated Col because
Bokingco admitted that he only attacked Pasion after
the latter hit him in the head.
All told, an acquittal for Col is in order because no
sufficient evidence was adduced to implicate him.
WHEREFORE, the appeal is GRANTED. The Decision
of the Court of Appeals in CA-G.R. CR-H.C. No. 00658
is REVERSED and SET ASIDE. Appellant Reynante
Col is ACQUITTED on ground of reasonable doubt.
The Bureau of Corrections is ordered to cause the
immediate release of accused-appellant, unless he is
being lawfully held for another cause, and to inform
this Court of action taken within ten (10) days from
notice.
Appellant Michael Bokingco is found GUILTY beyond
reasonable doubt of the crime of Homicide. He is
hereby sentenced to suffer the penalty of six years (6)
and one (1) day of prision mayor as minimum to 14
years, eight (8) months and one (1) day of reclusion
temporal, as maximum Appellant is further ordered to
indemnify the heirs of Noli Pasion in the amount of
Seventy five thousand pesos (₱75,000.00); Fifty
thousand pesos (₱50,000.00) as moral damages;
Twenty five thousand pesos (₱25,000.00) as temperate
damages; Fifteen thousand pesos (₱15,000.00) as
attorney’s fees; and to pay the costs.
SO ORDERED.
JOSE PORTUGAL PEREZ
Associate Justice
WE CONCUR:
ANTONIO T. CARPIO
Associate Justice
Chairperson
ARTURO D. BRION LUCAS P. BERSAMIN*
Associate Justice Associate Justice
MARIA LOURDES P. A. SERENO
Associate Justice
ATTESTATION
I attest that the conclusions in the above Decision had
been reached in consultation before the case was
assigned to the writer of the opinion of the Court’s
Division.
ANTONIO T. CARPIO
Associate Justice
Chairperson
CERTIFICATION
Pursuant to Section 13, Article VIII of the
Constitution and the Division Chairperson’s
Attestation, I certify that the conclusions in the above
Decision had been reached in consultation before the
case was assigned to the writer of the opinion of the
Court’s Division.
RENATO C. CORONA
Chief Justice

12. People vs. Delfin Caliso, GR No. 183830, Oct. 19,

2011
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 183830 October 19, 2011
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs.
DELFIN CALISO, Accused-Appellant.
DECISION
BERSAMIN, J.:
The decisive question that seeks an answer is whether
the identification of the perpetrator of the crime by an
eyewitness who did not get a look at the face of the
perpetrator was reliable and positive enough to
support the conviction of appellant Delfin Caliso
(Caliso).
Caliso was arraigned and tried for rape with homicide,
but the Regional Trial Court (RTC), Branch 21, in
Kapatagan, Lanao del Norte found him guilty of
murder for the killing of AAA,1 a mentally-retarded
16-year old girl, and sentenced him to death in its
decision dated August 19, 2002.2 The appeal of the
conviction was brought automatically to the Court.
On June 28, 2005,3 the Court transferred the records
to the Court of Appeals (CA) for intermediate review
pursuant to the ruling in People v. Mateo.4 On
October 26, 2007,5 the CA, although affirming the
conviction, reduced the penalty to reclusion perpetua
and modified the civil awards. Now, Caliso is before us
in a final bid to overturn his conviction.
Antecedents
The information dated August 5, 1997 charged Caliso
with rape with homicide perpetrated in the following
manner:
That on or about the 5th day of June, 1997, at
Kapatagan, Lanao del Norte, Philippines and within
the jurisdiction of this Honorable Court, the above-
named accused, by means of force, violence and
intimidation, did then and there willfully, unlawfully
and feloniously have carnal knowledge upon one
AAA, who is a minor of 16 years old and a mentally
retarded girl, against her will and consent; that on the
occasion of said rape and in furtherance of the
accused’s criminal designs, did then and there
willfully, unlawfully and feloniously, with intent to
kill, and taking advantage of superior strength, attack,
assault and use personal violence upon said AAA by
mauling her, pulling her towards a muddy water and
submerging her underneath, which caused the death
of said AAA soon thereafter.
CONTRARY to and in VIOLATION of Article 335 of
the Revised Penal Code in relation to R.A. 7659,
otherwise known as the "Heinous Crimes Law".6
At his arraignment on November 12, 1997,7 Caliso
pleaded not guilty to the charge.
The records show that AAA died on June 5, 1997 at
around 11:00 am in the river located in Barangay
Tiacongan, Kapatagan, Lanao Del Norte; that the
immediate cause of her death was asphyxia, secondary
to drowning due to smothering; that the lone
eyewitness, 34-year old Soledad Amegable
(Amegable), had been clearing her farm when she
heard the anguished cries of a girl pleading for mercy:
Please stop noy, it is painful noy!;8 that the cries came
from an area with lush bamboo growth that made it
difficult for Amegable to see what was going on; that
Amegable subsequently heard sounds of beating and
mauling that soon ended the girl’s cries; that Amegable
then proceeded to get a better glimpse of what was
happening, hiding behind a cluster of banana trees in
order not to be seen, and from there she saw a man
wearing gray short pants bearing the number "11"
mark, who dragged a girl’s limp body into the river,
where he submerged the girl into the knee-high
muddy water and stood over her body; that he later
lifted the limp body and tossed it to deeper water; that
he next jumped into the other side of the river; that in
that whole time, Amegable could not have a look at
his face because he always had his back turned towards
her;9 that she nonetheless insisted that the man was
Caliso, whose physical features she was familiar with
due to having seen him pass by their barangay several
times prior to the incident;10 that after the man fled
the crime scene, Amegable went straight to her house
and told her husband what she had witnessed; and that
her husband instantly reported the incident to the
barangay chairman.
It appears that one SPO3 Romulo R. Pancipanci
declared in an affidavit11 that upon his station
receiving the incident report on AAA’s death at about
12:45 pm of June 5, 1997, he and two other officers
proceeded to the crime scene to investigate; that he
interviewed Amegable who identified the killer by his
physical features and clothing (short pants); that based
on such information, he traced Caliso as AAA’s killer;
and that Caliso gave an extrajudicial admission of the
killing of AAA. However, the declarations in the
affidavit remained worthless because the Prosecution
did not present SPO3 Pancipanci as its witness.
Leo Bering, the barangay chairman of San Vicente,
Kapatagan, Lanao Del Norte, attested that on the
occasion of Caliso’s arrest and his custodial
interrogation, he heard Caliso admit to the
investigating police officer the ownership of the short
pants recovered from the crime scene; that the
admission was the reason why SPO3 Pancipanci
arrested Caliso from among the curious onlookers that
had gathered in the area; that Amegable, who saw
SPO3 Pancipanci’s arrest of Caliso at the crime scene,
surmised that Caliso had gone home and returned to
the crime scene thereafter.12
Municipal Health Officer Dr. Joseph G.B. Fuentecilla
conducted the post-mortem examination on the body
of AAA on June 6, 1997, and found the following
injuries, to wit:
EXTERNAL FINDINGS:
1. The dead body was generally pale wearing a
heavily soiled old sleeveless shirt and garter skirts.
2. The body was wet and heavily soiled with mud
both nostrils and mouth was filled with mud.
3. The skin of hands and feet is bleached and
corrugated in appearance.
4. 2 cm. linear lacerated wound on the left cheek
(sic).
5. Multiple small (sic) reddish contusions on
anterior neck area.
6. Circular hematoma formation 3 inches in
diameter epigastric area of abdomen.
7. Four erythematus linear abrasion of the left
cheek (sic).
8. Presence of a 6x8 inches bulge on the back just
below the inferior angle of both scapula extending
downwards.
9. The body was wearing an improperly placed
underwear with the garter vertically oriented to
the right stained with moderate amount of
yellowish fecal material.
10. Minimal amount of pubic hair in the lower
pubis with labia majora contracted and retracted.
11. There’s no swelling abrasion, laceration, blood
hematoma formation in the vulva. There were old
 healed hymenal lacerations at 5 and 9 o’clock
position.
12. Vaginal canal admits one finger with no foreign
body recovered (sic).
13. Oval shaped contusion/hematoma 6 cm at its
greatest diameter anterior surface middle 3rd left
thigh.
14. Presence of 2 contusion laceration 1x0.5 cm in
size medial aspect left knee.13
Dr. Fuentecilla also conducted a physical examination
on the body of Caliso and summed up his findings
thusly:
P.E. FINDINGS:
1. Presence of a 7x0.1 cm. horizontally averted
linear erythematus contusion left side of neck
(Post ▲).
2. 8x0.2 cm. reddish linear abrasion (probably a
scratch mark) from the left midclavicular line
extending to the left anterioraxillary line.
 3. Presence of 2 erythematus abrasion 3 cmx0.1 cm
in average size dorsal surface (probably a scratch
mark) middle 3rd left arm.
4. 2.5 cm. abrasion dorsal surface middle and right
forearm.
5. Presence of a linear erythematus contusion
(probably a scratch mark) 2x7 cm. in average size
lateral boarder of scapula extending to left
posterior axillary line.
6. Presence of 2 oblique oriented erythematus
contusion (probably a scratch mark) 14x022 cm.
and 5x0.2 cm. in size respectively at the upper left
flank of the lower back extending downward to
the midline.
7. Presence of 5 linear reddish pressure contusion
parallel to each other with an average 5 cm left
flank area.14
In his defense, Caliso denied the accusation and
interposed an alibi, insisting that on the day of the
killing, he plowed the rice field of Alac Yangyang from
7:00 am until 4:00 pm.
Yangyang corroborated Caliso’s alibi, recalling that
Caliso had plowed his rice field from 8 am to 4 pm of
June 5, 1997. He further recalled that Caliso was in his
farm around 12:00 noon because he brought lunch to
Caliso. He conceded, however, that he was not aware
where Caliso was at the time of the killing.
Ruling of the RTC
After trial, the RTC rendered its judgment on August
19, 2002, viz:
WHEREFORE, in view of the foregoing
considerations, accused DELFIN CALISO is hereby
sentenced to death and to indemnify the heirs of AAA
in the amount of ₱50,000.00. The accused is also
hereby ordered to pay the said heirs the amount of
₱50, 000.00 as exemplary damages.
SO ORDERED.15
The RTC found that rape could not be complexed with
the killing of AAA because the old-healed hymenal
lacerations of AAA and the fact that the victim’s
underwear had been irregularly placed could not
establish the commission of carnal knowledge; that
the examining physician also found no physical signs
of rape on the body of AAA; and that as to the killing
of AAA, the identification by Amegable that the man
she had seen submerging AAA in the murky river was
no other than Caliso himself was reliable.
Nevertheless, the RTC did not take into consideration
the testimony of Bering on Caliso’s extrajudicial
admission of the ownership of the short pants because
the pants were not presented as evidence and because
the police officers involved did not testify about the
pants in court.16 The RTC cited the qualifying
circumstance of abuse of superior strength to raise the
crime from homicide to murder, regarding the word
homicide in the information to be used in its generic
sense as to include all types of killing.
Ruling of the CA
On intermediate review, the following errors were
raised in the brief for the accused-appellant,17 namely:
 i. The court a quo gravely erred in convicting the
accused-appellant of the crime of murder despite
the failure of the prosecution to prove his guilt
beyond reasonable doubt;
ii. The court a quo gravely erred in giving weight
and credence to the incredible and inconsistent
testimony of the prosecution witnesses.
iii. The court a quo gravely erred in appreciating
the qualifying aggravating circumstance of taking
advantage of superior strength and the generic
aggravating circumstance of disregard of sex[; and]
iv. The court a quo gravely erred in imposing the
death penalty.
As stated, the CA affirmed Caliso’s conviction for
murder based on the same ratiocinations the RTC had
rendered. The CA also relied on the identification by
Amegable of Caliso, despite his back being turned
towards her during the commission of the crime. The
CA ruled that she made a positive identification of
Caliso as the perpetrator of the killing, observing that
the incident happened at noon when the sun had been
at its brightest, coupled with the fact that Amegable’s
view had not been obstructed by any object at the time
that AAA’s body had been submerged in the water;
that the RTC expressly found her testimony as clear
and straightforward and worthy of credence; that no
reason existed why Amegable would falsely testify
against Caliso; that Caliso did not prove the physical
impossibility for him to be at the crime scene or at its
immediate vicinity at the time of the incident, for both
Barangay San Vicente, where AAA’s body was found,
and Barangay Tiacongan, where the rice field of
Yangyang was located, were contiguous; that the
attendant circumstance of abuse of superior strength
qualified the killing of AAA to murder; that disregard
of sex should not have been appreciated as an
aggravating circumstance due to its not being alleged
in the information and its not being proven during
trial; and that the death penalty could not be imposed
because of the passage of Republic Act No. 9346,
prohibiting its imposition in the Philippines.
The CA decreed in its judgment, viz:
WHEREFORE, the Decision of the Regional Trial
Court dated August 19, 2002, finding appellant guilty
of Murder, is hereby AFFIRMED with the
MODIFICATION that appellant Delfin Caliso is
sentenced to reclusion perpetua, and is directed to pay
the victim’s heirs the amount of P50,000.00 as moral
damages, as well as the amount of P25,000.00 as
exemplary damages, in addition to the civil indemnity
of P50,000.00 he had been adjudged to pay by the trial
court.
SO ORDERED.18
Issue
The primordial issue is whether Amegable’s
identification of Caliso as the man who killed AAA at
noon of July 5, 1997 was positive and reliable.
Ruling
The appeal is meritorious.
In every criminal prosecution, the identity of the
offender, like the crime itself, must be established by
proof beyond reasonable doubt. Indeed, the first duty
of the Prosecution is not to prove the crime but to
prove the identity of the criminal, for even if the
commission of the crime can be established, there can
be no conviction without proof of identity of the
criminal beyond reasonable doubt.19
The CA rejected the challenge Caliso mounted against
the reliability of his identification as the culprit by
Amegable in the following manner:20
As to the first two errors raised, appellant contends
that the testimony of Soledad Amegable was replete
with discrepancies. Appellant avers, for instance, that
Soledad failed to see the assailant’s face. Moreover,
considering the distance between where Soledad was
supposedly hiding and where the incident transpired,
appellant states that it was inconceivable for her to
have heard and seen the incident. According to
appellant, witness Soledad could not even remember
if at that time, she hid behind a banana plant, or a
coconut tree.
At bench, the incident happened at noon, when the
sun was at its brightest. Soledad could very well
recognize appellant. Furthermore, notwithstanding
the fact that it was his back that was facing her, she
asserted being familiar with the physical features of
appellant, considering that he frequented their
barangay. Even during her cross-examination by the
defense counsel, Soledad remained steadfast in
categorically stating that she recognized appellant:
Q: Mrs. Amegable, you said during your direct
examination that you saw Delfin Caliso, the
accused in this case, several times passed by your
barangay, am I correct?
A: Several times.
Q: By any chance prior to the incident, did you talk
to him?
A: No, sir.
Q: Are you acquainted with him?
A: Yes, sir.
Q: Even if he is in his back position?
A: Yes, sir. (Emphasis Supplied)
Given the circumstances as stated above, it was even
probable that Soledad caught glimpses of the profile of
the appellant at the time of the incident. She related,
in addition, that when the victim was being
submerged in the water, there was no object
obstructing her view.
The inconsistencies as alleged by appellant, between
Soledad Amegable’s declaration in court and her
affidavit, such as the tree or plant from where she was
hiding behind at the time of the incident, are
insignificant and cannot negate appellant’s criminal
liability. Her whole attention was riveted to the
incident that was unfolding before her. Besides, any
such inconsistencies are minor. Slight contradictions
are indicative of an unrehearsed testimony and could
even serve to strengthen the witness’ credibility. A
witness who is telling the truth is not always expected
to give a perfectly concise testimony, considering the
lapse of time and the treachery of human memory.
In fact, the testimony of a single eye-witness is
sufficient to support a conviction, so long as such
testimony is found to be clear and straightforward and
worthy of credence by the trial court. Furthermore,
over here, witness Soledad had no reason to testify
falsely against appellant.
Besides, the credibility of witnesses and their
testimonies is a matter best undertaken by the trial
court, because of its unique opportunity to observe the
witnesses firsthand and to note their demeanor,
conduct and attitude.lawphi1 Findings of the trial
court on such matters are binding and conclusive on
the appellate court.
Contrary to the CA’s holding that the identification of
Caliso based on Amegable’s recognition of him was
reliable, the Court considers the identification not
reliable and beyond doubt as to meet the requirement
of moral certainty.
When is identification of the perpetrator of a crime
positive and reliable enough for establishing his guilt
beyond reasonable doubt?
The identification of a malefactor, to be positive and
sufficient for conviction, does not always require
direct evidence from an eyewitness; otherwise, no
conviction will be possible in crimes where there are
no eyewitnesses. Indeed, trustworthy circumstantial
evidence can equally confirm the identification and
overcome the constitutionally presumed innocence of
the accused. Thus, the Court has distinguished two
types of positive identification in People v.
Gallarde,21 to wit: (a) that by direct evidence, through
an eyewitness to the very commission of the act; and
(b) that by circumstantial evidence, such as where the
accused is last seen with the victim immediately
before or after the crime. The Court said:
xxx Positive identification pertains essentially to proof
of identity and not per se to that of being an eyewitness
to the very act of commission of the crime. There are
two types of positive identification. A witness may
identify a suspect or accused in a criminal case as the
perpetrator of the crime as an eyewitness to the very
act of the commission of the crime. This constitutes
direct evidence. There may, however, be instances
where, although a witness may not have actually seen
the very act of commission of a crime, he may still be
able to positively identify a suspect or accused as the
perpetrator of a crime as for instance when the latter is
the person or one of the persons last seen with the
victim immediately before and right after the
commission of the crime. This is the second type of
positive identification, which forms part of
circumstantial evidence, which, when taken together
with other pieces of evidence constituting an
unbroken chain, leads to only fair and reasonable
conclusion, which is that the accused is the author of
the crime to the exclusion of all others. If the actual
eyewitnesses are the only ones allowed to possibly
positively identify a suspect or accused to the
exclusion of others, then nobody can ever be
convicted unless there is an eyewitness, because it is
basic and elementary that there can be no conviction
until and unless an accused is positively identified.
Such a proposition is absolutely absurd, because it is
settled that direct evidence of the commission of a
crime is not the only matrix wherefrom a trial court
may draw its conclusion and finding of guilt. If resort
to circumstantial evidence would not be allowed to
prove identity of the accused on the absence of direct
evidence, then felons would go free and the
community would be denied proper protection.22
Amegable asserted that she was familiar with Caliso
because she had seen him pass by in her barangay
several times prior to the killing. Such assertion
indicates that she was obviously assuming that the
killer was no other than Caliso. As matters stand,
therefore, Caliso’s conviction hangs by a single thread
of evidence, the direct evidence of Amegable’s
identification of him as the perpetrator of the killing.
But that single thread was thin, and cannot stand
sincere scrutiny. In every criminal prosecution, no less
than moral certainty is required in establishing the
identity of the accused as the perpetrator of the crime.
Her identification of Caliso as the perpetrator did not
have unassailable reliability, the only means by which
it might be said to be positive and sufficient. The test
to determine the moral certainty of an identification is
its imperviousness to skepticism on account of its
distinctiveness. To achieve such distinctiveness, the
identification evidence should encompass unique
physical features or characteristics, like the face, the
voice, the dentures, the distinguishing marks or
tattoos on the body, fingerprints, DNA, or any other
physical facts that set the individual apart from the rest
of humanity.
A witness’ familiarity with the accused, although
accepted as basis for a positive identification, does not
always pass the test of moral certainty due to the
possibility of mistake.
No matter how honest Amegable’s testimony might
have been, her identification of Caliso by a sheer look
at his back for a few minutes could not be regarded as
positive enough to generate that moral certainty about
Caliso being the perpetrator of the killing, absent
other reliable circumstances showing him to be AAA’s
killer. Her identification of him in that manner lacked
the qualities of exclusivity and uniqueness, even as it
did not rule out her being mistaken. Indeed, there
could be so many other individuals in the community
where the crime was committed whose backs might
have looked like Caliso’s back. Moreover, many factors
could have influenced her perception, including her
lack of keenness of observation, her emotional stress
of the moment, her proneness to suggestion from
others, her excitement, and her tendency to assume.
The extent of such factors are not part of the records;
hence, the trial court and the CA could not have taken
them into consideration. But the influence of such
varied factors could not simply be ignored or taken for
granted, for it is even a well-known phenomenon that
the members of the same family, whose familiarity
with one another could be easily granted, often
inaccurately identify one another through a sheer
view of another’s back. Certainly, an identification
that does not preclude a reasonable possibility of
mistake cannot be accorded any evidentiary force.23
Amegable’s recollection of the perpetrator wearing
short pants bearing the number "11" did not enhance
the reliability of her identification of Caliso. For one,
such pants were not one-of-a-kind apparel, but
generic. Also, they were not offered in evidence. Yet,
even if they had been admitted in evidence, it
remained doubtful that they could have been linked to
Caliso without proof of his ownership or possession of
them in the moments before the crime was
perpetrated.
Nor did the lack of bad faith or ill motive on the part
of Amegable to impute the killing to Caliso guarantee
the reliability and accuracy of her identification of
him. The dearth of competent additional evidence that
eliminated the possibility of any human error in
Amegable’s identification of Caliso rendered her lack
of bad faith or ill motive irrelevant and immaterial, for
even the most sincere person could easily be mistaken
about her impressions of persons involved in startling
occurrences such as the crime committed against
AAA. It is neither fair nor judicious, therefore, to have
the lack of bad faith or ill motive on the part of
Amegable raise her identification to the level of moral
certainty.
The injuries found on the person of Caliso by Dr.
Fuentecilla, as borne out by the medical certificate
dated June 9, 1997,24 did not support the culpability of
Caliso. The injuries, which were mostly mere scratch
marks,25 were not even linked by the examining
physician to the crime charged. Inasmuch as the
injuries of Caliso might also have been due to other
causes, including one related to his doing menial labor
most of the time, their significance as evidence of guilt
is nil.
In the absence of proof beyond reasonable doubt as to
the identity of the culprit, the accused’s constitutional
right to be presumed innocent until the contrary is
proved is not overcome, and he is entitled to an
acquittal,26 though his innocence may be
doubted.27 The constitutional presumption of
innocence guaranteed to every individual is of primary
importance, and the conviction of the accused must
rest not on the weakness of the defense he put up but
on the strength of the evidence for the Prosecution.28
WHEREFORE, the decision promulgated on October
26, 2007 is REVERSED and SET ASIDE for
insufficiency of evidence, and accused-appellant
Delfin Caliso is ACQUITTED of the crime of murder.
The Director of the Bureau of Corrections in
Muntinlupa City is directed to forthwith release
Delfin Caliso from confinement, unless there is
another lawful cause warranting his further detention.
No pronouncement on costs of suit.
SO ORDERED.
LUCAS P. BERSAMIN
Associate Justice
WE CONCUR:
RENATO C. CORONA
Chief Justice
Chairperson
TERESITA J.
MARIANO C. DEL
LEONARDO-DE
CASTILLO
CASTRO
Associate Justice
Associate Justice

MARTIN S. VILLARAMA, JR.

Associate Justice
CERTIFICATION
Pursuant to Section 13, Article VIII of the
Constitution, I certify that the conclusions in the
above Decision had been reached in consultation
before the case was assigned to the writer of the
opinion of the Court’s Division.
RENATO C. CORONA
Chief Justice
ATTEMPTED HOMICIDE

13. Arnel Colinares vs. People, GR No. 182748, Dec. 13,

2011

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 182748 December 13, 2011
ARNEL COLINARES, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
ABAD, J.:
This case is about a) the need, when invoking self-
defense, to prove all that it takes; b) what distinguishes
frustrated homicide from attempted homicide; and c)
when an accused who appeals may still apply for
probation on remand of the case to the trial court.
The Facts and the Case
The public prosecutor of Camarines Sur charged the
accused Arnel Colinares (Arnel) with frustrated
homicide before the Regional Trial Court (RTC) of San
Jose, Camarines Sur, in Criminal Case T-2213.1
Complainant Rufino P. Buena (Rufino) testified that at
around 7:00 in the evening on June 25, 2000, he and
Jesus Paulite (Jesus) went out to buy cigarettes at a
nearby store. On their way, Jesus took a leak by the
roadside with Rufino waiting nearby. From nowhere,
Arnel sneaked behind and struck Rufino twice on the
head with a huge stone, about 15 ½ inches in diameter.
Rufino fell unconscious as Jesus fled.
Ananias Jallores (Ananias) testified that he was
walking home when he saw Rufino lying by the
roadside. Ananias tried to help but someone struck
him with something hard on the right temple,
knocking him out. He later learned that Arnel had hit
him.
Paciano Alano (Paciano) testified that he saw the
whole incident since he happened to be smoking
outside his house. He sought the help of a barangay
tanod and they brought Rufino to the hospital.
Dr. Albert Belleza issued a Medico-Legal
Certificate2 showing that Rufino suffered two
lacerated wounds on the forehead, along the hairline
area. The doctor testified that these injuries were
serious and potentially fatal but Rufino chose to go
home after initial treatment.
The defense presented Arnel and Diomedes Paulite
(Diomedes). Arnel claimed self-defense. He testified
that he was on his way home that evening when he
met Rufino, Jesus, and Ananias who were all quite
drunk. Arnel asked Rufino where he supposed the
Mayor of Tigaon was but, rather than reply, Rufino
pushed him, causing his fall. Jesus and Ananias then
boxed Arnel several times on the back. Rufino tried to
stab Arnel but missed. The latter picked up a stone
and, defending himself, struck Rufino on the head
with it. When Ananias saw this, he charged towards
Arnel and tried to stab him with a gaff. Arnel was able
to avoid the attack and hit Ananias with the same
stone. Arnel then fled and hid in his sister’s house. On
September 4, 2000, he voluntarily surrendered at the
Tigaon Municipal Police Station.
Diomedes testified that he, Rufino, Jesus, and Ananias
attended a pre-wedding party on the night of the
incident. His three companions were all drunk. On his
way home, Diomedes saw the three engaged in heated
argument with Arnel.
On July 1, 2005 the RTC rendered judgment, finding
Arnel guilty beyond reasonable doubt of frustrated
homicide and sentenced him to suffer imprisonment
from two years and four months of prision
correccional, as minimum, to six years and one day of
prision mayor, as maximum. Since the maximum
probationable imprisonment under the law was only
up to six years, Arnel did not qualify for probation.
Arnel appealed to the Court of Appeals (CA), invoking
self-defense and, alternatively, seeking conviction for
the lesser crime of attempted homicide with the
consequent reduction of the penalty imposed on him.
The CA entirely affirmed the RTC decision but deleted
the award for lost income in the absence of evidence
to support it.3 Not satisfied, Arnel comes to this Court
on petition for review.
In the course of its deliberation on the case, the Court
required Arnel and the Solicitor General to submit
their respective positions on whether or not, assuming
Arnel committed only the lesser crime of attempted
homicide with its imposable penalty of imprisonment
of four months of arresto mayor, as minimum, to two
years and four months of prision correccional, as
maximum, he could still apply for probation upon
remand of the case to the trial court.
Both complied with Arnel taking the position that he
should be entitled to apply for probation in case the
Court metes out a new penalty on him that makes his
offense probationable. The language and spirit of the
probation law warrants such a stand. The Solicitor
General, on the other hand, argues that under the
Probation Law no application for probation can be
entertained once the accused has perfected his appeal
from the judgment of conviction.
The Issues Presented
The case essentially presents three issues:
1. Whether or not Arnel acted in self-defense
when he struck Rufino on the head with a stone;
2. Assuming he did not act in self-defense, whether
or not Arnel is guilty of frustrated homicide; and
3. Given a finding that Arnel is entitled to
conviction for a lower offense and a reduced
probationable penalty, whether or not he may still
apply for probation on remand of the case to the
trial court.
The Court’s Rulings
One. Arnel claims that Rufino, Jesus, and Ananias
attacked him first and that he merely acted in self-
defense when he hit Rufino back with a stone.
When the accused invokes self-defense, he bears the
burden of showing that he was legally justified in
killing the victim or inflicting injury to him. The
accused must establish the elements of self-defense by
clear and convincing evidence. When successful, the
otherwise felonious deed would be excused, mainly
predicated on the lack of criminal intent of the
accused.4
In homicide, whether consummated, frustrated, or
attempted, self-defense requires (1) that the person
whom the offender killed or injured committed
unlawful aggression; (2) that the offender employed
means that is reasonably necessary to prevent or repel
the unlawful aggression; and (3) that the person
defending himself did not act with sufficient
provocation.5
If the victim did not commit unlawful aggression
against the accused, the latter has nothing to prevent
or repel and the other two requisites of self-defense
would have no basis for being appreciated. Unlawful
aggression contemplates an actual, sudden, and
unexpected attack or an imminent danger of such
attack. A mere threatening or intimidating attitude is
not enough. The victim must attack the accused with
actual physical force or with a weapon.6
Here, the lower courts found that Arnel failed to prove
the element of unlawful aggression. He alone testified
that Jesus and Ananias rained fist blows on him and
that Rufino and Ananias tried to stab him. No one
corroborated Arnel’s testimony that it was Rufino who
started it. Arnel’s only other witness, Diomedes,
merely testified that he saw those involved having a
heated argument in the middle of the street. Arnel did
not submit any medical certificate to prove his point
that he suffered injuries in the hands of Rufino and his
companions.7
In contrast, the three witnesses—Jesus, Paciano, and
Ananias—testified that Arnel was the aggressor.
Although their versions were mottled with
inconsistencies, these do not detract from their core
story. The witnesses were one in what Arnel did and
when and how he did it. Compared to Arnel’s
testimony, the prosecution’s version is more
believable and consistent with reality, hence
deserving credence.8
Two. But given that Arnel, the accused, was indeed
the aggressor, would he be liable for frustrated
homicide when the wounds he inflicted on Rufino, his
victim, were not fatal and could not have resulted in
death as in fact it did not?
The main element of attempted or frustrated homicide
is the accused’s intent to take his victim’s life. The
prosecution has to prove this clearly and convincingly
to exclude every possible doubt regarding homicidal
intent.9And the intent to kill is often inferred from,
among other things, the means the offender used and
the nature, location, and number of wounds he
inflicted on his victim.10
Here, Arnel struck Rufino on the head with a huge
stone. The blow was so forceful that it knocked Rufino
out. Considering the great size of his weapon, the
impact it produced, and the location of the wounds
that Arnel inflicted on his victim, the Court is
convinced that he intended to kill him.
The Court is inclined, however, to hold Arnel guilty
only of attempted, not frustrated, homicide. In
Palaganas v. People,11 we ruled that when the accused
intended to kill his victim, as shown by his use of a
deadly weapon and the wounds he inflicted, but the
victim did not die because of timely medical
assistance, the crime is frustrated murder or frustrated
homicide. If the victim’s wounds are not fatal, the
crime is only attempted murder or attempted
homicide.
Thus, the prosecution must establish with certainty
the nature, extent, depth, and severity of the victim’s
wounds. While Dr. Belleza testified that "head injuries
are always very serious,"12 he could not categorically
say that Rufino’s wounds in this case were "fatal."
Thus:
Q: Doctor, all the injuries in the head are fatal?
A: No, all traumatic injuries are potentially treated.
Q: But in the case of the victim when you treated him
the wounds actually are not fatal on that very day?
A: I could not say, with the treatment we did, prevent
from becoming fatal. But on that case the patient
preferred to go home at that time.
Q: The findings also indicated in the medical certificate
only refers to the length of the wound not the depth of
the wound?
A: When you say lacerated wound, the entire length of
the layer of scalp.
Q: So you could not find out any abrasion?
A: It is different laceration and abrasion so once the
skin is broken up the label of the frontal lo[b]e, we
always call it lacerated wound, but in that kind of
wound, we did not measure the depth.13
Indeed, Rufino had two lacerations on his forehead
but there was no indication that his skull incurred
fracture or that he bled internally as a result of the
pounding of his head. The wounds were not so deep,
they merely required suturing, and were estimated to
heal in seven or eight days. Dr. Belleza further
testified:
Q: So, in the medical certificate the wounds will not
require surgery?
A: Yes, Madam.
Q: The injuries are slight?
A: 7 to 8 days long, what we are looking is not much,
we give antibiotics and antit[e]tanus – the problem the
contusion that occurred in the brain.
xxxx
Q: What medical intervention that you undertake?
A: We give antibiotics, Your Honor, antit[e]tanus and
suturing the wounds.
Q: For how many days did he stay in the hospital?
A: Head injury at least be observed within 24 hours, but
some of them would rather go home and then come
back.
Q: So the patient did not stay 24 hours in the hospital?
A: No, Your Honor.
Q: Did he come back to you after 24 hours?
A: I am not sure when he came back for follow-up.14
Taken in its entirety, there is a dearth of medical
evidence on record to support the prosecution’s claim
that Rufino would have died without timely medical
intervention. Thus, the Court finds Arnel liable only
for attempted homicide and entitled to the mitigating
circumstance of voluntary surrender.
Three. Ordinarily, Arnel would no longer be entitled
to apply for probation, he having appealed from the
judgment of the RTC convicting him for frustrated
homicide.
But, the Court finds Arnel guilty only of the lesser
crime of attempted homicide and holds that the
maximum of the penalty imposed on him should be
lowered to imprisonment of four months of arresto
mayor, as minimum, to two years and four months of
prision correccional, as maximum. With this new
penalty, it would be but fair to allow him the right to
apply for probation upon remand of the case to the
RTC.
Some in the Court disagrees. They contend that
probation is a mere privilege granted by the state only
to qualified convicted offenders. Section 4 of the
probation law (PD 968) provides: "That no application
for probation shall be entertained or granted if the
defendant has perfected the appeal from the judgment
of conviction."15 Since Arnel appealed his conviction
for frustrated homicide, he should be deemed
permanently disqualified from applying for probation.
But, firstly, while it is true that probation is a mere
privilege, the point is not that Arnel has the right to
such privilege; he certainly does not have. What he
has is the right to apply for that privilege. The Court
finds that his maximum jail term should only be 2
years and 4 months. If the Court allows him to apply
for probation because of the lowered penalty, it is still
up to the trial judge to decide whether or not to grant
him the privilege of probation, taking into account the
full circumstances of his case.
Secondly, it is true that under the probation law the
accused who appeals "from the judgment of
conviction" is disqualified from availing himself of the
benefits of probation. But, as it happens, two
judgments of conviction have been meted out to
Arnel: one, a conviction for frustrated homicide by the
regional trial court, now set aside; and, two, a
conviction for attempted homicide by the Supreme
Court.
If the Court chooses to go by the dissenting opinion’s
hard position, it will apply the probation law on Arnel
based on the trial court’s annulled judgment against
him. He will not be entitled to probation because of
the severe penalty that such judgment imposed on
him. More, the Supreme Court’s judgment of
conviction for a lesser offense and a lighter penalty
will also have to bend over to the trial court’s
judgment—even if this has been found in error. And,
worse, Arnel will now also be made to pay for the trial
court’s erroneous judgment with the forfeiture of his
right to apply for probation. Ang kabayo ang
nagkasala, ang hagupit ay sa kalabaw (the horse errs,
the carabao gets the whip). Where is justice there?
The dissenting opinion also expresses apprehension
that allowing Arnel to apply for probation would
dilute the ruling of this Court in Francisco v. Court of
Appeals16 that the probation law requires that an
accused must not have appealed his conviction before
he can avail himself of probation. But there is a huge
difference between Francisco and this case.
In Francisco, the Metropolitan Trial Court (MeTC) of
Makati found the accused guilty of grave oral
defamation and sentenced him to a prison term of one
year and one day to one year and eight months of
prision correccional, a clearly probationable penalty.
Probation was his to ask! Still, he chose to appeal,
seeking an acquittal, hence clearly waiving his right to
apply for probation. When the acquittal did not come,
he wanted probation. The Court would not of course
let him. It served him right that he wanted to save his
cake and eat it too. He certainly could not have both
appeal and probation.
The Probation Law, said the Court in Francisco,
requires that an accused must not have appealed his
conviction before he can avail himself of probation.
This requirement "outlaws the element of speculation
on the part of the accused—to wager on the result of
his appeal—that when his conviction is finally
affirmed on appeal, the moment of truth well-nigh at
hand, and the service of his sentence inevitable, he
now applies for probation as an ‘escape hatch’ thus
rendering nugatory the appellate court’s affirmance of
his conviction."17
Here, however, Arnel did not appeal from a judgment
that would have allowed him to apply for probation.
He did not have a choice between appeal and
probation. He was not in a position to say, "By taking
this appeal, I choose not to apply for probation." The
stiff penalty that the trial court imposed on him denied
him that choice. Thus, a ruling that would allow Arnel
to now seek probation under this Court’s greatly
diminished penalty will not dilute the sound ruling in
Francisco. It remains that those who will appeal from
judgments of conviction, when they have the option
to try for probation, forfeit their right to apply for that
privilege.
Besides, in appealing his case, Arnel raised the issue of
correctness of the penalty imposed on him. He claimed
that the evidence at best warranted his conviction
only for attempted, not frustrated, homicide, which
crime called for a probationable penalty. In a way,
therefore, Arnel sought from the beginning to bring
down the penalty to the level where the law would
allow him to apply for probation.
In a real sense, the Court’s finding that Arnel was
guilty, not of frustrated homicide, but only of
attempted homicide, is an original conviction that for
the first time imposes on him a probationable penalty.
Had the RTC done him right from the start, it would
have found him guilty of the correct offense and
imposed on him the right penalty of two years and
four months maximum.lavvphil This would have
afforded Arnel the right to apply for probation.
The Probation Law never intended to deny an accused
his right to probation through no fault of his. The
underlying philosophy of probation is one of liberality
towards the accused. Such philosophy is not served by
a harsh and stringent interpretation of the statutory
provisions.18 As Justice Vicente V. Mendoza said in his
dissent in Francisco, the Probation Law must not be
regarded as a mere privilege to be given to the accused
only where it clearly appears he comes within its
letter; to do so would be to disregard the teaching in
many cases that the Probation Law should be applied
in favor of the accused not because it is a criminal law
but to achieve its beneficent purpose.19
One of those who dissent from this decision points out
that allowing Arnel to apply for probation after he
appealed from the trial court’s judgment of conviction
would not be consistent with the provision of Section
2 that the probation law should be interpreted to
"provide an opportunity for the reformation of a
penitent offender." An accused like Arnel who appeals
from a judgment convicting him, it is claimed, shows
no penitence.
This may be true if the trial court meted out to Arnel
a correct judgment of conviction. Here, however, it
convicted Arnel of the wrong crime, frustrated
homicide, that carried a penalty in excess of 6 years.
How can the Court expect him to feel penitent over a
crime, which as the Court now finds, he did not
commit? He only committed attempted homicide with
its maximum penalty of 2 years and 4 months.
Ironically, if the Court denies Arnel the right to apply
for probation under the reduced penalty, it would be
sending him straight behind bars. It would be robbing
him of the chance to instead undergo reformation as a
penitent offender, defeating the very purpose of the
probation law.
At any rate, what is clear is that, had the RTC done
what was right and imposed on Arnel the correct
penalty of two years and four months maximum, he
would have had the right to apply for probation. No
one could say with certainty that he would have
availed himself of the right had the RTC done right by
him. The idea may not even have crossed his mind
precisely since the penalty he got was not
probationable.
The question in this case is ultimately one of fairness.
Is it fair to deny Arnel the right to apply for probation
when the new penalty that the Court imposes on him
is, unlike the one erroneously imposed by the trial
court, subject to probation?
WHEREFORE, the Court PARTIALLY GRANTS the
petition, MODIFIES the Decision dated July 31, 2007
of the Court of Appeals in CA-G.R. CR 29639, FINDS
petitioner Arnel Colinares GUILTY beyond
reasonable doubt of attempted homicide, and
SENTENCES him to suffer an indeterminate penalty
from four months of arresto mayor, as minimum, to
two years and four months of prision correccional, as
maximum, and to pay Rufino P. Buena the amount of
₱20,000.00 as moral damages, without prejudice to
petitioner applying for probation within 15 days from
notice that the record of the case has been remanded
for execution to the Regional Trial Court of San Jose,
Camarines Sur, in Criminal Case T-2213.
SO ORDERED.
ROBERTO A. ABAD
Associate Justice
WE CONCUR:
RENATO C. CORONA
Chief Justice

ANTONIO T. PRESBITERO J.
CARPIO VELASCO, JR.
Associate Justice Associate Justice
 TERESITA J.
LEONARDO-DE ARTURO D. BRION
CASTRO Associate Justice
Associate Justice

DIOSDADO M.
LUCAS P. BERSAMIN
PERALTA
Associate Justice
Associate Justice

MARIANO C. DEL MARTIN S.

CASTILLO VILLARAMA, JR.
Associate Justice Associate Justice

JOSE PORTUGAL JOSE CATRAL

PEREZ MENDOZA
Associate Justice Associate Justice

MARIA LOURDES P. BIENVENIDO L.

A. SERENO REYES
Associate Justice Associate Justice

ESTELA M. PERLAS-BERNABE
Associate Justice
CERTIFICATION
Pursuant to Section 13, Article VIII of the
Constitution, it is hereby certified that the conclusions
in the above Decision had been reached in
consultation before the case was assigned to the writer
of the opinion of the Court.
RENATO C. CORONA
Chief Justice
FRUSTRATED HOMICIDE

14. Rodolfo and Joey Guevarra vs. People, GR No.

170462, Feb. 5, 2014

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 170462 February 5, 2014
RODOLFO GUEVARRA and JOEY
GUEVARRA, Petitioners,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
BRION, J.:
We review in this petition for review on
certiorari1 the decision2 dated October 24, 2005 of the
Court of Appeals (CA) in CA-G.R. CR No. 28899. The
CA affirmed, with modification on the amount of
damages, the joint decision3 dated April 16, 2004 of the
Regional Trial Court (RTC), Branch 20, Cauayan City,
Isabela, finding Rodolfo Guevarra and Joey Guevarra
(petitioners) guilty beyond reasonable doubt of the
crimes of frustrated homicide and homicide.
Factual Antecedents
Rodolfo and his son, Joey, were charged with the
crimes of frustrated homicide and homicide under two
Informations which read:
In Criminal Case No. Br. 20-1560 for Frustrated
Homicide:
That on or about the 8th day of January, 2000, in the
municipality of Alicia, province of Isabela,
Philippines, and within the jurisdiction of this
Honorable Court, the said accused, conspiring,
confederating together and helping one another, with
intent to kill and without any just motive, did then and
there, willfully, unlawfully and feloniously, assault,
attack, hack and stab for several times with a sharp
pointed bolo one Erwin Ordonez, who as a result
thereof, suffered multiple hack and stab wounds on
the different parts of his body, which injuries would
ordinarily cause the death of the said Erwin Ordonez,
thus, performing all the acts of execution which
should have produced the crime of homicide as a
consequence, but nevertheless, did not produce it by
reason of causes independent of their will, that is, by
the timely and able medical assistance rendered to the
said Erwin Ordonez, which prevented his death.4
In Criminal Case No. Br. 20-1561 for Homicide:
That on or about the 8th day of January, 2000, in the
municipality of Alicia, province of Isabela,
Philippines, and within the jurisdiction of this
Honorable Court, the said accused, conspiring,
confederating together and helping one another, with
intent to kill and without any just motive, did then and
there, willfully, unlawfully and feloniously, assault,
attack, hack and stab for several times with a sharp
pointed bolo one David Ordonez, who as a result
thereof, suffered multiple hack and stab wounds on
the different parts of his body which directly caused
his death.5
Although the informations stated that the crimes were
committed on January 8, 2000, the true date of their
commission is November 8, 2000, as confirmed by the
CA through the records.6 The parties failed to raise any
objection to the discrepancy.7
On arraignment, the petitioners pleaded not guilty to
both charges.8 The cases were jointly tried with the
conformity of the prosecution and the defense. At the
pre-trial, the petitioners interposed self-defense,
which prompted the RTC to conduct a reverse trial of
the case.9
During the trial, the parties presented different
versions of the events that transpired on November 8,
2000.
Version of the Defense
To prove the petitioners' claim of self-defense, the
defense presented the testimonies of Rodolfo, Joey,
and the petitioners' neighbor, Balbino Agustin.
Testimony of Rodolfo
Rodolfo, who was then fifty-five (55) years old,
narrated that, at around 11 :00 p.m., on November 8,
2000, brothers Erwin Ordonez and David Ordonez,
together with their companion, Philip Vingua, forced
their way into his compound and threw stones at his
house and tricycle. Through the back door of his
house, Rodolfo went down to the basement or "silung'
and shouted at the three men to stop. David saw him,
threatened to kill him, and struck him with a
''panabas," hitting him on the palm of his left hand.
Rodolfo responded by reaching for the bolo tucked in
the "so/era" of his house, and hacked and stabbed
Erwin and David until the two brothers fell to the
ground. Upon seeing Erwin and David lying on the
ground, Rodolfo called on someone to bring the
brothers to the hospital. He stayed in his house until
the policemen arrived.
Testimony of Joey
Joey, who was then thirty-one (31) years old, narrated
that, at around 11:00 p.m., on November 8, 2000, he
was awakened by the sound of stones being thrown at
their house in Bliss, Paddad, Alicia, Isabela. Through
the window, he saw Erwin, David and Philip breaking
into their gate, which was made of wood and interlink
wire and located five ( 5) to six ( 6) meters away from
their house. He then heard his father Rodolfo say to
the three men, "kung ano man ang problema bukas na
natin pag-usapan,"10 and David retorted in their
dialect, "Okininam nga lakay adda ka gayam dita,
patayin taka."11
Testimony of Balbino
Balbino narrated that, from inside his house in Bliss,
Paddad, Alicia, Isabela, at around 10:00 p.m., on
November 8, 2000, he heard a person from the outside
saying "Sige banatan ninyo na."12 He opened his door
and saw David, Erwin and Philip throwing stones at
the house of his neighbor Crisanto Briones. Briones
got mad and scolded the three men, "Why are you
hitting my house? Why don't you hit the house of your
enemy, mga tarantado kayo!"13David, Erwin and
Philip then aimed their stones at the petitioners'
house. Balbino heard David calling out to Joey, "Joey,
kung tunay kang lalaki lumabas ka diyan sa kalsada at
dito tayo magpatayan,"14 but no one came out of
Rodolfo's house. The stoning lasted for about thirty
(30) minutes.
Afterwards, Balbino saw David, Erwin and Philip
destroy Rodolfo's gate and pull the gate towards the
road. He heard David say to his companions, "koberan
ninyo ako at papasok kami."15 David, Erwin and Philip
entered the petitioners' compound and damaged
Rodolfo's tricycle with stones and their ''panabas."
Also, he heard Rodolfo say to David in Filipino that
they could just talk about their problems with him the
following day. But David approached Rodolfo and
hacked him with a ''panabas." Rodolfo parried the
blow with the back of his hand, and David and Rodolfo
struggled for the possession of the ''panabas."
Balbino also saw Erwin hit Rodolfo on the face with a
stone and Joey was hit on his right foot, causing
Rodolfo and Joey to retreat to the "silung" of their
house from where Rodolfo got "something shiny," and
with it stabbed David and Erwin. He saw the two
brothers fall to the ground.
Version of the Prosecution
As its rebuttal witness, the prosecution presented the
sole testimony of Erwin who survived the hacking.
Erwin narrated that, at around 10:00 to 11 :00 p.m., on
November 8, 2000, he, his brother David and Philip
went to a birthday party and passed in front of the
petitioners' compound. He was walking twenty (20)
meters ahead of his companions when, suddenly,
Philip ran up to him saying that David was being
stabbed by Joey with a bolo. While approaching the
scene of the stabbing, which was three (3) meters away
from where his brother David was, Erwin was met by
Rodolfo who then hacked him, hitting his arm and
back. Thereafter, Rodolfo and Joey dragged Erwin
inside the petitioners' compound and kept on hacking
him. He was hacked and stabbed thirteen (13) times.
He became weak and ultimately fell to the ground.
Erwin denied that he and David threw stones at the
petitioners' house and damaged Rodolfo's
tricycle.1âwphi1 They did not likewise destroy the
petitioners' gate, which was only damaged when his
brother David clung on to it while he was being pulled
by Rodolfo and Erwin into their compound. While
they were being hacked and stabbed by Rodolfo and
Erwin, stones actually rained on them and people
outside the petitioners' gate were saying, "Do not kill
the brothers. Allow them to come out."16
After the incident, Erwin and David, both
unconscious, were brought to the hospital. David died
in the hospital while being treated for his wounds.
The RTC's Ruling
In a decision dated April 16, 2004, the RTC gave
credence to the prosecution's version of the incident
and found the petitioners guilty beyond reasonable
doubt of the crimes of frustrated homicide and
homicide. It disbelieved the defense's version of the
events due to material inconsistencies in the
testimonies of the defense witnesses. It denied the
petitioners' claim of self-defense for lack of clear,
convincing and satisfactory supporting evidence.
The RTC explained in its decision that "[w]hen an
accused invokes the justifying circumstance of self-
defense, he loses the constitutional presumption of
innocence and assumes the burden of proving, with
clear and convincing evidence, the justification for his
act";17 that self-defense is an affirmative allegation
which must be proven with certainty by sufficient,
satisfactory and convincing evidence that excludes
any vestige of criminal aggression on the part of the
person invoking it.18 The RTC held that the petitioners
miserably failed to prove that there was unlawful
aggression on the part of the victims, Erwin and David.
Accordingly, the RTC disposed of the case as follows:
WHEREFORE, finding the accused Rodolfo Guevarra
and Joey Guevarra guilty beyond reasonable doubt of
the crimes for which they are charged, and absent any
mitigating or aggravating circumstance/s that attended
the commission of the crimes, the Court hereby
sentences each of the accused to suffer -In Criminal
Case No. Br. 20-1560 for Frustrated Homicide - an
indeterminate penalty ranging from Three (3) years
and one day of prision correccional as minimum to
Nine (9) years of prision mayor as maximum and to
indemnify the victim Erwin Ordonez moral damages
in the amount of Twenty Thousand (₱20,000.00)
Pesos, without any subsidiary imprisonment in case of
insolvency. Cost against the accused.
In Criminal Case No. Br. 20-1561 for Homicide - an
indeterminate penalty ranging from Eight (8) years
and one day of prision mayor as minimum to Fifteen
(15) years of Reclusion Temporal as maximum and to
indemnify the heirs of the deceased David Ordonez
Sixty Thousand (₱60,000.00) Pesos plus Thirty
Thousand (₱30,000.00) Pesos as moral damages
without subsidiary imprisonment in case of
insolvency. Costs against the accused.
The bail bonds of the accused are CANCELLED.19
The CA's Ruling
On appeal, the CA affirmed the RTC's judgment and
convicted the petitioners of the crimes charged. As the
RTC did, the CA found that Erwin and David
committed no unlawful aggression sufficient to
provoke the actions of the petitioners; that
"aggression, to be unlawful, must be actual and
imminent, such that there is a real threat of bodily
harm to the person resorting to self-defense or to
others whom that person is seeking to defend."20 Even
assuming the truth of the petitioners' claims that
David challenged Joey to a fight and threatened to kill
Rodolfo on the night of November 8, 2000, the CA
held that these acts do not constitute unlawful
aggression to justify the petitioners' actions as no real
or actual danger existed as the petitioners were then
inside the safety of their own home.
The CA further held that the petitioners' plea of self-
defense was belied by the nature and number of
wounds inflicted on Erwin, who sustained thirteen
(13) stab wounds on his arm and back, and David, who
suffered around ten (10) stab wounds on his back and
stomach causing his death. These wounds logically
indicated that the assault was no longer an act of self-
defense but a determined homicidal aggression on the
part of the petitioners.21
The CA, however, found error in the amounts of civil
indemnity and moral damages awarded by the RTC.
Thus, the CA modified the RTC's decision in this wise:
WHEREFORE, the appealed Decision is AFFIRMED
with MODIFICATION. In Crim. Case No. Br. 20-1561,
appellants RODOLFO GUEVARRA and JOEY
GUEVARRA are each ordered to pay the heirs of the
deceased David Ordonez the sum of Fifty Thousand
Pesos (P.50,000.00) as civil indemnity and another
Fifty Thousand Pesos (₱50,000.00) as moral damages.22
The Petition
In the present petition, the petitioners raise the
following issues:
A.
WHETHER OR NOT THE HONORABLE COURT OF
APPEALS ERRED IN FAILING TO APPRECIATE
THE PRESENCE OF THE JUSTIFYING
CIRCUMSTANCE OF SELF-DEFENSE DESPITE
CLEAR AND CONVINCING EVIDENCE SHOWING
THE ELEMENTS OF SELF-DEFENSE.
B.
WHETHER OR NOT THE HONORABLE COURT OF
APPEALS ERRED IN GIVING FULL CREDENCE TO
THE TESTIMONY OF THE LONE WITNESS OF THE
PROSECUTION.
C.
WHETHER OR NOT THE HONORABLE COURT OF
APPEALS ERRED IN NOT ACQUITTING
PETITIONER JOEY GUEVARRA WHO HAS NO
PARTICIPATION IN THE SAID INCIDENT.23
Our Ruling
We deny the present petition as we find no reversible
error in the CA decision of October 24, 2005.
At the outset, we emphasize that the Court's review of
the present case is via a petition for review under Rule
45, which generally bars any question pertaining to
the factual issues raised. The well-settled rule is that
questions of fact are not reviewable in petitions for
review under Rule 45, subject only to certain
exceptions, among them, the lack of sufficient support
in evidence of the trial court's judgment or the
appellate court's misapprehension of the adduced
facts.24
The petitioners fail to convince us that we should
review the findings of fact in this case. Factual findings
of the RTC, when affirmed by the CA, are entitled to
great weight and respect by this Court and are deemed
final and conclusive when supported by the evidence
on record.25 We find that both the RTC and the CA
fully considered the evidence presented by the
prosecution and the defense, and they have adequately
explained the legal and evidentiary reasons in
concluding that the petitioners are guilty of the crimes
of frustrated homicide and homicide.
In the absence of any showing that the trial and
appellate courts overlooked certain facts and
circumstances that could substantially affect the
outcome of the present case, we uphold the rulings of
the RTC and the CA which found the elements of
these crimes fully established during the trial.
The crime of frustrated homicide is committed when:
(1) an "accused intended to kill his victim, as
manifested by his use of a deadly weapon in his assault;
(2) the victim sustained fatal or mortal wound/s but
did not die because of timely medical assistance; and
(3) none of the qualifying circumstance for murder
under Article 248 of the Revised Penal Code is
present."26
On the other hand, the crime of homicide is
committed when: (1) a person is killed; (2) the accused
killed that person without any justifying
circumstance; (3) the accused had the intention to kill,
which is presumed; and ( 4) the killing was not
attended by any of the qualifying circumstances of
murder, or by that of parricide or infanticide.27
The petitioners' intent to kill was clearly established
by the nature and number of wounds sustained by
their victims. Evidence to prove intent to kill in crimes
against persons may consist, among other things, of
the means used by the malefactors; the conduct of the
malefactors before, at the time of, or immediately after
the killing of the victim; and the nature, location and
number of wounds sustained by the victim.28 The CA
aptly observed that the ten (10) hack/stab wounds
David suffered and which eventually caused his death,
and the thirteen (13) hack/stab wounds Erwin
sustained, confirmed the prosecution's theory that the
petitioners purposely and vigorously attacked David
and Erwin.29
In fact, the petitioners admitted at the pre-trial that
"the wounds inflicted on the victim Erwin Ordonez
would have caused his death were it not for immediate
medical attendance."30
By invoking self-defense, the petitioners, in effect,
admitted to the commission of the acts for which they
were charged, albeit under circumstances that, if
proven, would have exculpated them. With this
admission, the burden of proof shifted to the
petitioners to show that the killing and frustrated
killing of David and Erwin, respectively, were
attended by the following circumstances: (1) unlawful
aggression on the part of the victims; (2) reasonable
necessity of the means employed to prevent or repel
such aggression; and (3) lack of sufficient provocation
on the part of the persons resorting to self-defense.31
Of all the burdens the petitioners carried, the most
important of all is the element of unlawful aggression.
Unlawful aggression is an actual physical assault, or at
least a threat to inflict real imminent injury, upon a
person.32 The element of unlawful aggression must be
proven first in order for self-defense to be successfully
pleaded. There can be no self-defense, whether
complete or incomplete, unless the victim had
committed unlawful aggression against the person
who resorted to self-defense.33
As the RTC and the CA did, we find the absence of the
element of unlawful aggression on the part of the
victims. As the prosecution fully established, Erwin
and David were just passing by the petitioners'
compound on the night of November 8, 2000 when
David was suddenly attacked by Joey while Erwin was
attacked by Rodolfo. The attack actually took place
outside, not inside, the petitioners' compound, as
evidenced by the way the petitioners' gate was
destroyed. The manner by which the wooden gate
post was broken coincided with Erwin's testimony
that his brother David, who was then clinging onto the
gate, was dragged into the petitioners' compound.
These circumstances, coupled with the nature and
number of wounds sustained by the victims, clearly
show that the petitioners did not act in self-defense in
killing David and wounding Erwin. The petitioners
were, in fact, the real aggressors.
As to the penalties and damages
awarded
We affirm the penalties imposed upon the petitioners,
as they are well within the ranges provided by law, but
modify the damages awarded by the CA.
In addition to the ₱50,000.00 civil indemnity and
₱50,000.00 moral damages awarded by the CA, we
award ₱25,000.00 to each of the victims as temperate
damages, in lieu of the actual damages they sustained
by reason of the crimes. Article 2224 of the Civil Code
states that temperate or moderate damages may be
recovered when the court finds that some pecuniary
loss has been suffered but its amount cannot be proved
with certainty.
Also, we impose on all the monetary awards for
damages interest at the legal rate of six percent ( 6%)
per annum from date of finality of the decision until
fully paid.34
WHEREFORE, the petition is DENIED. The decision
dated October 24, 2005 of the Court of Appeals is
hereby AFFIRMED with MODIFICATION in that the
petitioners are also ordered to pay Erwin Ordonez and
the heirs of David Ordonez the amount of ₱25,000.00
as temperate damages.
The petitioners shall pay interest at the rate of six
percent (6%) per annum on the civil indemnity, moral
and temperate damages from the finality of this
decision until fully paid.
SO ORDERED.
ARTURO D. BRION
Associate Justice
WE CONCUR:
ANTONIO T. CARPIO
Associate Justice
Chairperson
JOSE PORTUGAL JOSE CATRAL
PEREZ MENDOZA*
Associate Justice Associate Justice
ESTELA M. PERLAS-BERNABE
Associate Justice
ATTESTATION
I attest that the conclusions in the above Decision had
been reached in consultation before the case was
assigned to the writer of the opinion of the Court's
Division.
ANTONIO T. CARPIO
Associate Justice
Chairperson, Second Division
CERTIFICATION
Pursuant to Section 13, Article VIII of the
Constitution, and the Division Chairperson's
Attestation, I certify that the conclusions in the above
Decision had been reached in consultation before the
case was assigned to the writer of the opinion of the
Court's Division.
MARIA LOURDES P. A. SERENO
Chief Justice
COMPLEX CRIME OF CARNAPPING WITH
HOMICIDE

15. People vs. Cendana, GR No. 201092, Jan. 15, 2014

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 201092 January 15, 2014
PEOPLE OF THE PHILIPPINES, Plaintiff -Appellee,
vs.
JOEL AQUINO y CENDANA @ "AKONG," Accused-
Appellant.
DECISION
LEONARDO-DE CASTRO, J.:
Before this Court is an appeal from a Decision1 dated
July 29, 2011 of the Court of Appeals in CA-G.R. CR.-
H.C. No. 04265, entitled People of the Philippines v.
Joel Aquino y Cendana alias Akong, which affirmed
with modifications the Decision2 dated September 18
2009 of the Regional Trial Court of Malolos, Bulacan,
Branch 12 which convicted appellant Joel Aquino y
Cendana alias Akong for the felony of Murder under
Article 248 of the Revised Penal Code in Criminal Case
No. 483-M-2003 and for the crime of violation of
Republic Act No. 6539 otherwise known as the Anti-
Camapping Act of 1972 in Criminal Case No. 484-M-
2003.
The pertinent portion of the lnformation3 dated
December 9, 2002 charging appellant with Murder in
Criminal Case No. 483-M-2003 is reproduced here:
That on or about the 6th day of September, 2002, in
San Jose del Monte City, province of Bulacan,
Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, armed
with an ice pick and with intent to kill one Jesus O.
Lita, with evident premeditation, treachery and abuse
of superior strength, conspiring, confederating and
mutually helping one another, did then and there
willfully, unlawfully and feloniously attack, assault
and stab with the said ice pick the said Jesus O. Lita,
hitting him on the different parts of his body, thereby
inflicting upon him mortal wounds which directly
caused his death.
On the other hand, the accusatory portion of the
Information4 also dated December 9, 2002 accusing
appellant with violating Republic Act No. 6539 in
Criminal Case No. 484-M-2003 reads:
That on or about the 6th day of September, 2002, in
San Jose del Monte City, province of Bulacan,
Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, armed
with an ice pick and by means of force, violence and
intimidation, conspiring, confederating and mutually
helping one another, did then and there willfully,
unlawfully and feloniously, with intent [to] gain and
without the knowledge and consent of the owner
thereof, take, steal and carry away with them one (1)
tricycle with Plate No. TP-9198 valued at ₱120,500.00,
belonging to Jesus Lita and Sisinio Contridas, to the
damage and prejudice of the said owners in the said
amount of ₱120,500.00; and that on the occasion or by
reason of said carnapping, the said accused, pursuant
to their conspiracy and with intent to kill, attack,
assault and stab Jesus Lita, owner and driver of the said
tricycle, hitting him on the different parts of his body
which directly caused his death.
Arraignment for the two criminal cases was jointly
held on February 13, 2004 wherein appellant pleaded
"NOT GUILTY" to both charges.5
As indicated in the Appellee’s Brief, the following
narration constitutes the prosecution’s summation of
this case:
On September 5, 2005, at around 8:30 in the evening,
the victim Jesus Lita, accompanied by his ten-year old
son, Jefferson, went out aboard the former’s black
Kawasaki tricycle. Upon reaching San Jose del Monte
Elementary School, appellant Joel Aquino together
with Noynoy Almoguera a.k.a. Negro, Rodnal, Bing,
John Doe and Peter Doe boarded the tricycle. Noynoy
Almoguera instructed the victim to proceed to the
nipa hut owned by appellant.
Upon reaching the said nipa hut, Jesus Lita, appellant
and his companions had a shabu session while
Jefferson was watching TV. After using shabu, Noynoy
Almoguera demanded from the victim to pay Five
Hundred Pesos (₱500.00), but the victim said that he
had no money. Appellant shouted at the victim
demanding him to pay. Bing suggested to her
companions that they leave the nipa hut. Thus, the
victim mounted his tricycle and started the engine.
Noynoy Almoguera and John Doe rode in the tricycle
behind the victim while appellant and Rodnal rode in
the sidecar with Jefferson [sitting] at the toolbox of the
tricycle. Inside the tricycle, appellant pointed a knife
at Jefferson while Noynoy Almoguera stabbed the
victim’s side. After the victim was stabbed, he was
transferred inside the tricycle while appellant drove
the tricycle to his friend’s house where they again
stabbed the victim using the latter’s own knife. Then
they loaded the victim to the tricycle and drove to a
grassy area where appellant and his companions
dumped the body of the victim. Thereafter, they
returned to appellant’s residence. Jefferson told the
sister of appellant about the death of his father but the
sister of appellant only told him to sleep.
The next day, Jefferson was brought to the jeepney
terminal where he rode a jeepney to get home.
Jefferson told his mother, Ma. Theresa Calitisan-Lita,
about the death of his father.
In the meantime, SPO3 Servillano Lactao Cabading
received a call from Barangay Captain Danilo Rogelio
of Barangay San Rafael IV, San Jose Del Monte City,
Bulacan thru the two (2) way radio, that the body of a
male person with several stab wounds was found dead
on a grassy area beside the road of the said barangay.
Immediately, SPO3 Cabading together with a police
aide proceeded to the area. Thereat, they found the
dead body whom they identified thru his Driver’s
License in his wallet as Jesus Lita, the victim. Also
recovered were a big stainless ice pick about 18 inches
long including the handle and a tricycle key. The
police officers brought the body of the victim to the
Sapang Palay District Hospital. Thereafter, they
proceeded to the address of the victim.
Ma. Theresa Calitisan-Lita and Jefferson were about to
leave for the morgue when they met SPO3 Cabading
outside their residence. SPO3 Cabading informed Ma.
Theresa that the body of the victim was found in
Barangay San Rafael IV. Jefferson told SPO3 Cabading
that he was with his father at the time of his death and
he brought the police officers to the place where his
father was stabbed and to the hut owned by appellant.
Thereat, the police officers recovered a maroon
colored knife case and the sandals of the victim.
Appellant was invited to the police station for
questioning but he refused alleging that he does not
know anything about the incident. The police officers
were able to obtain a picture of appellant which was
shown to Jefferson and he positively identified the
same as "Akong" one of those who stabbed his father.
Likewise, a video footage of Noynoy Almoguera alias
"Negro" was shown to Jefferson and he likewise
identified the person in the video footage as the same
"Negro" who also stabbed his father.
Dr. Richard Ivan Viray, medico-legal, who conducted
an autopsy on the victim, concluded that cause of
death is Hemorrhagic Shock due to multiple stab
wounds.6
However, appellant held a different version of the
events of this case. In his Appellant’s Brief, the
succeeding account is entered:
[Appellant] denied the accusations against him. On
September 6, 2002, he was working as a laborer/mason
in the construction of his uncle’s (Rene Cendana)
house located at Area C, Acacia Homes, Cavite,
together with Paul Maglaque, Eman Lozada, Raul
Lozada and Lorenzo Cendana. They worked from 7:30
x x x in the morning until 4:30 x x x in the afternoon,
with lunch and "merienda" breaks from 11:30 x x x to
12:00 o’clock noon and 3:00 o’clock to 3:15 x x x in the
afternoon, respectively. After work, they just stayed in
their barracks located within their workplace. They
would prepare their food and take supper at around
7:00 o’clock to 7:30 x x x in the evening, after which,
they would smoke cigarettes. They would go to bed at
around 8:00 o’clock to 9:00 o’clock in the evening.
He goes home to Sapang Palay, San Jose Del Monte
City, Bulacan every Saturday. During Mondays, he
would leave their house at around 4:00 o’clock to 5:00
o’clock in the morning and would arrive at his
workplace at around 8:00 o’clock or 9:00 o’clock in the
morning.
[Appellant] does not know either Ma. Theresa Lita, his
son Jefferson, or the victim Jesus Lita. Also, he does
not know a certain Noynoy Almoguera and alias
Rodnal. Likewise, he denied using illegal drugs (i.e.,
shabu).
[Appellant] knew SPO3 Cabading because the former
had served as a police aide to him since he was
seventeen (17) years old. He had no misunderstanding
with the police officer. He cannot think of any reason
why Ma. Theresa Lita and Jefferson pointed to him as
one of the perpetrators of the subject crimes.
Paul Maglague (Paul) corroborated [appellant’s]
testimony. On September 6, 2002, a Friday, [appellant]
was working with him, together with Roldan Lozada
and Oweng Cendana, at Area C, Dasmariñas, Cavite,
in the construction of Boy Cendana’s house, Paul’s
brother-in-law. Paul was the cement mixer while
[appellant], being his partner, carries it to wherever it
is needed. Their work ends at 5:00 o’clock in the
afternoon. After their work, they just stayed in their
barracks located within their workplace. [Appellant]
was their cook. They usually sleep at around 8:00
o’clock to 9:00 o’clock in the evening. They get their
pay only during Saturdays. Hence, they would go
home to Bulacan every Saturday.
At around 6:00 o’clock to 7:00 o’clock in the evening
of September 7, 2002, they left Cavite and went to
their respective homes in Bulacan.
On the night of September 5, 2002, [appellant] slept
together with Paul and their other co-workers inside
their barracks. Paul woke up in the middle of the night
to urinate and was not able to see whether the accused
was there, as there were no lights in the place where
they were sleeping. The following morning,
[appellant] was the one who cooked their
food.7 (Citations omitted.)
At the conclusion of trial, a guilty verdict was handed
down by the trial court on both criminal charges. The
dispositive portion of the assailed September 18, 2009
Decision states:
WHEREFORE, in Criminal Case No. 483-M-2003, the
Court finds the Accused JOEL AQUINO alias "Akong"
guilty beyond reasonable doubt of the crime of
Murder and hereby sentences him to suffer the
penalty of Reclusion Perpetua. The Court hereby
orders the accused JOEL AQUINO to pay the heirs of
Jesus Lita, the expenses incurred in his burial and
funeral services in the total amount of Sixty Thousand
One Hundred (₱60,100.00) Pesos as actual damages,
the sum of Fifty Thousand (₱50,000.00) Pesos as moral
damages, and ₱30,000.00 as exemplary damages.
In Criminal Case No. 484-M-2003, the Court likewise
finds the accused JOEL AQUINO alias "Akong" guilty
beyond reasonable doubt of violating R.A. 6539,
otherwise known as the Anti-Carnapping Law, and
hereby sentences him to suffer the penalty of Life
Imprisonment pursuant to Section 14 of the said R.A.
6539. The said accused is also ordered to pay the
amount of Sixty-Five Thousand Eight Hundred
Seventy-Five (₱65,875.00) Pesos representing the total
installment payments of the Motorcycle.
The accused is also ordered to pay costs of this suit.8
Insisting on his innocence, appellant filed an appeal
with the Court of Appeals. However, the appellate
court upheld the judgment of the trial court along with
some modifications. The dispositive portion of the
assailed July 29, 2011 Decision of the Court of Appeals,
in turn, reads:
WHEREFORE, the appealed Decision is hereby
MODIFIED, as follows:
a) In Criminal Case No. 483-M-2003, appellant is
sentenced to suffer the penalty of reclusion
perpetua without eligibility for parole. Appellant
is ordered to pay the heirs of the victim actual
damages in the sum of ₱60,100.00, duly proven
during the trial, ₱75,000.00 civil indemnity,
 ₱75,000.00 moral damages and ₱30,000.00
exemplary damages.
b) In Criminal Case No. 484-M-2003, appellant is
sentenced to suffer the penalty of imprisonment of
Fourteen (14) years and Eight (8) months, as
minimum, to Seventeen (17) years and Four (4)
months, as maximum and to pay the sum of
₱65,875.00 representing the total installment
payments of the motorcycle.9
Hence, appellant seeks the Court’s favorable action on
the instant appeal. In his Brief, appellant reiterated the
following errors allegedly committed by the trial court
when it adjudged him guilty of the charges leveled
against him:
I
THE TRIAL COURT GRAVELY ERRED IN FINDING
THE ACCUSED-APPELLANT GUILTY BEYOND
REASONABLE DOUBT OF THE CRIMES
CHARGED.
II
THE TRIAL COURT GRAVELY ERRED IN FINDING
THAT THE ALLEGED LONE EYEWITNESS
POSITIVELY IDENTIFIED THE ACCUSED-
APPELLANT AS ONE OF THE PERPETRATORS OF
THE CRIMES.
III
THE TRIAL COURT GRAVELY ERRED IN FINDING
THAT TREACHERY ATTENDED THE KILLING.10
Appellant challenges his conviction by arguing that
the trial court was not able to prove his guilt beyond
reasonable doubt because it only relied on the
incredible and inconsistent testimony of Jefferson Lita
– the sole eyewitness presented by the prosecution. He
contends that if Jefferson was indeed present during
the murder of his father, Jesus Lita, then it would be
highly inconceivable that Jefferson would have lived
to tell that tale since he would most likely be also
killed by the perpetrators being an eyewitness to the
crime. Furthermore, appellant maintains that he
cannot possibly have committed the crimes attributed
to him because, on the night that Jesus was murdered,
he was asleep in the barracks of a construction site
somewhere in Dasmariñas City, Cavite.
We are not persuaded.
It is settled in jurisprudence that, absent any showing
that the lower court overlooked circumstances which
would overturn the final outcome of the case, due
respect must be made to its assessment and factual
findings, moreover, such findings, when affirmed by
the Court of Appeals, are generally binding and
conclusive upon this Court.11 After a thorough
examination of the records of this case, we find no
compelling reason to doubt the veracity of the findings
and conclusions made by the trial court.
With regard to appellant’s inquiry into the credibility
of the lone eyewitness of the prosecution, we depend
upon the principle that the trial court is in a better
position to adjudge the credibility of a witness. In
People v. Vergara,12 we elaborated on this premise in
this wise:
When it comes to the matter of credibility of a witness,
settled are the guiding rules some of which are that (1)
the appellate court will not disturb the factual findings
of the lower court, unless there is a showing that it had
overlooked, misunderstood or misapplied some fact or
circumstance of weight and substance that would have
affected the result of the case, which showing is absent
herein; (2) the findings of the trial court pertaining to
the credibility of a witness is entitled to great respect
since it had the opportunity to examine his demeanor
as he testified on the witness stand, and, therefore, can
discern if such witness is telling the truth or not; and
(3) a witness who testifies in a categorical,
straightforward, spontaneous and frank manner and
remains consistent on cross-examination is a credible
witness.13
Jurisprudence also tells us that when a testimony is
given in a candid and straightforward manner, there is
no room for doubt that the witness is telling the
truth.14 A perusal of the testimony of Jefferson
indicates that he testified in a manner that satisfies the
aforementioned test of credibility. More importantly,
during his time at the witness stand, Jefferson
positively and categorically identified appellant as one
of the individuals who stabbed his father.
We quote the relevant portions of Jefferson’s detailed
testimony:
[PROSECUTOR CARAIG]
Q Why do you know that your father died on the early
morning of September 6, 2002, in Sapang Palay, San
Jose del Monte?
xxxx
A Because we left the house together at 8:30 in the
evening, and my father looked at the calendar.
Q You said you were with your father. Do you know
where were you going at that time?
A To the house of Akong.
Q And what mode of transportation did you take, as
you said, you were going to the house of Akong?
A Our tricycle, sir.
Q Do you know the trade mark of that tricycle of your
father?
A Kawasaki, sir.
Q Do you know the color of that tricycle?
A Black, sir.
Q While on your way to the residence of Akong, could
you please tell us if there was any unusual incident
that took place?
A Yes, sir, there was.
Q What was that?
A My father was being stabbed. x x x x
Q Did you see who stabbed your father?
A Yes, sir.
Q How many?
A There were three (3) of them.
Q If you will see those three (3) persons again, can you
still identify them?
A Yes, sir.
Q Are they inside the courtroom?
A Yes, sir.
Q Will you please look around and point to them.
INTERPRETER
Witness pointed to accused Joel Aquino inside the
courtroom.
[PROSECUTOR CARAIG]
Q Who else?
A The others are not here.
Q Now, prior to the stabbing incident and you were
able to recognize the three, one of them you identified
here inside the courtroom. What was Joel Aquino
doing when you first saw him?
A He was inside our tricycle sitting.
Q You are referring to the sidecar of your tricycle?
A Yes, sir.
Q You said a while ago that you and your father were
only the one[s] on board the tricycle. Why was he,
that Joel, now inside the tricycle?
A They rode in our tricycle.
Q You are referring to Aquino together with his two
(2) companions?
A Yes, sir.
Q Where in particular did these three (3) persons ride
in your tricycle?
A Joel Aquino was inside the sidecar of our tricycle
while the other two (2) rode at the back of my father.
Q At that precise moment, where were you seated?
A Also inside the sidecar, sir.
Q You are sitting side by side with Aquino? Is that
what you mean?
A No, sir.
Q While inside the tricycle, what did Aquino do, if
any?
A He pointed his knife at me.
Q What else?
A Nothing else.
Q What about the two (2) companions, what did they
do, if any?
A Inunahan nila agad ang Tatay ko sa tagiliran.
Q What do you mean by "inunahan"?
A They stabbed my father on his side.
Q Did you see what part of the body of your father was
stabbed?
COURT:
Witness pointing to the right side of his stomach.
[PROSECUTOR CARAIG]
Q What happened to your father when he was
stabbed?
A He appeared dizzy and he was placed inside the
sidecar.
Q And who brought your father inside the sidecar?
A The two (2) other persons previously at the back of
my father.
Q And at that time, what did Joel do?
A He started driving the tricycle.
Q Did Aquino drive the tricycle after he started it?
A Yes, sir.
xxxx
Q And did you come to know where did Joel Aquino
proceed?
A To their house, sir.
Q How far was that house of Aquino from the place
where your father was stabbed?
A Quite far, sir.
Q Were you able to reach the house of Joel Aquino?
A Yes, sir.
Q What did Aquino and these two (2) persons do to
your father when you reached his house?
A They brought him down from the tricycle.
Q Where did these three (3) persons bring your father?
A They brought my father to their friend.
Q Did you come to know who was that friend where
your father was brought?
A I do not know the name of their friend.
Q What happened to your father when he was brought
to their friend?
A My father was already dying and they went back to
him and stabbed him several times.
Q How many times was your father stabbed at that
time?
A I do not know, sir.
Q Did you see who stabbed him again?
A Yes, sir.
Q Who?
A The three (3) of them.
Q Do you mean to say that Aquino at that time stabbed
your father?
A Yes, sir.
Q Did you see what kind of weapon did these three (3)
persons use in stabbing your father? A My father’s own
knife.
Q Who among the three (3) used your father’s knife?
A Akong po.
Q That Akong was the friend of the three (3) persons
to where these three (3) persons brought your father?
A No, sir.
Q You are referring to one of the two (2) companions
of Joel?
A Yes, sir.
Q And after that what else transpired next?
A They boarded my father to the tricycle.
Q How about you?
A While they were boarding my father to the tricycle,
Akong pointed his knife at my stomach.
Q Were the three (3) persons able to board your father
inside your tricycle?
A Yes, sir.
Q And what did the three (3) persons do after your
father was already inside the tricycle?
A They started the tricycle.
Q And then what happened next?
A After they started the motorcycle, they drove the
tricycle and threw away my father.
Q Did you see the act of these three (3) persons
throwing your father away from the tricycle?
A Yes, sir.
Q How far were you from them when they threw your
father?
A More or less about 5 to 6 meters, sir.
Q Describe the place where your father was thrown.
A It was a grassy area.
Q The grass are tall?
A Short grass, sir.
Q And after your father was thrown away, what did
the three (3) persons do?
A They started our tricycle and left my father.15
In the face of this serious accusation, appellant puts
forward the defense of alibi. We have held that for the
defense of alibi to prosper, the accused must prove not
only that he was at some other place at the time of the
commission of the crime, but also that it was
physically impossible for him to be at the locus delicti
or within its immediate vicinity.16These requirements
of time and place must be strictly met. A review of the
evidence presented by appellant reveals that it falls
short of the standard set by jurisprudence. Appellant
failed to establish by clear and convincing evidence
that it was physically impossible for him to be at San
Jose Del Monte City, Bulacan when Jesus was
murdered. His own testimony revealed that the
distance between the locus delicti and Dasmariñas
City, Cavite is only a four to five hour regular
commute.17 Thus, it would not be physically
impossible for him to make the round trip between
those two points from dusk till dawn of September 5-
6, 2002 and still have more than enough time to
participate in the events surrounding the murder of
Jesus.
Furthermore, the only person that could corroborate
appellant’s alibi is his friend and former co-worker,
Paul Maglaque. However, we have consistently
assigned less probative weight to a defense of alibi
when it is corroborated by friends and relatives since
we have established in jurisprudence that, in order for
corroboration to be credible, the same must be offered
preferably by disinterested witnesses.18 Clearly, due to
his friendship with appellant, Maglaque cannot be
considered as a disinterested witness.
Nevertheless, it is jurisprudentially settled that
positive identification prevails over alibi since the
latter can easily be fabricated and is inherently
unreliable.19 It is likewise settled that where there is
nothing to indicate that a witness for the prosecution
was actuated by improper motive, the presumption is
that he was not so actuated and his testimony is
entitled to full faith and credit.20 In the case at bar, no
allegation was made nor proven to show that Jefferson
had any ill motive to falsely testify against appellant.
With regard to appellant’s argument that Jefferson
would surely have also been killed by his father’s
murderers had he indeed witnessed the crime, we can
only surmise and speculate on this point. Whatever
may be the killers’ motivation to spare Jefferson’s life
remains a mystery. Nonetheless, it does not adversely
affect what has been clearly established in this case
and that is the cold-blooded murder of Jesus by a group
of assailants which includes herein appellant.
According to jurisprudence, to be convicted of
murder, the following must be established: (1) a
person was killed; (2) the accused killed him; the
killing was with the attendance of any of the
qualifying circumstances under Article 248 of the
Revised Penal Code; and (4) the killing neither
constitutes parricide nor infanticide.21
Contrary to appellant’s assertion, the qualifying
circumstance of treachery did attend the killing of
Jesus.1âwphi1 We have consistently held that
treachery is present when the offender commits any
of the crimes against persons, employing means,
methods, or forms in the execution, which tend
directly and specially to insure its execution, without
risk to the offender arising from the defense which the
offended party might make.22 On this point, we quote
with approval the Court of Appeals’ discussion of this
aspect of the case, to wit:
The essence of treachery is the sudden and unexpected
attack by the aggressor on an unsuspecting victim,
depriving him of any real chance to defend himself.
Even when the victim was forewarned of the danger
to his person, treachery may still be appreciated since
what is decisive is that the execution of the attack
made it impossible for the victim to defend himself or
to retaliate. Records disclose that Jesus was stabbed by
the group on the lateral part of his body while he was
under the impression that they were simply leaving
the place where they had [a] shabu session. Judicial
notice can be taken that when the tricycle driver is
seated on the motorcycle, his head is usually higher or
at the level of the roof of the side car which leaves his
torso exposed to the passengers who are seated in the
side car. Hence, there was no way for Jesus to even be
forewarned of the intended stabbing of his body both
from the people seated in the side car and those seated
behind him. Thus, the trial court’s finding of treachery
should be affirmed. There is treachery when the
means, methods, and forms of execution gave the
person attacked no opportunity to defend himself or
to retaliate; and such means, methods, and forms of
execution were deliberately and consciously adopted
by the accused without danger to his person. What is
decisive in an appreciation of treachery is that the
execution of the attack made it impossible for the
victim to defend himself.23(Citations omitted.)
However, in contrast to the pronouncements of both
the trial court and the Court of Appeals, we cannot
consider abuse of superior strength as an aggravating
circumstance in this case. As per jurisprudence, when
the circumstance of abuse of superior strength concurs
with treachery, the former is absorbed in the
latter.24 Since there is no aggravating or mitigating
circumstance present, the proper penalty is reclusion
perpetua, in accordance with Article 63 paragraph 2 of
the Revised Penal Code,25 it being the lesser penalty
between the two indivisible penalties for the felony of
murder which is reclusion perpetua to death.
However, we concur with the modification made by
the Court of Appeals with respect to the penalty of life
imprisonment for carnapping originally imposed by
the trial court. Life imprisonment has long been
replaced with the penalty of reclusion perpetua to
death by virtue of Republic Act No. 7659.
Furthermore, the said penalty is applicable only to the
special complex crime of carnapping with homicide
which is not obtaining in this case. Jurisprudence tells
us that to prove the special complex crime of
carnapping with homicide, there must be proof not
only of the essential elements of carnapping, but also
that it was the original criminal design of the culprit
and the killing was perpetrated in the course of the
commission of the carnapping or on the occasion
thereof.26 The appellate court correctly observed that
the killing of Jesus cannot qualify the carnapping into
a special complex crime because the carnapping was
merely an afterthought when the victim’s death was
already fait accompli. Thus, appellant is guilty only of
simple carnapping.
It is enshrined in jurisprudence that when death
occurs due to a crime, the following damages may be
awarded: (1) civil indemnity ex delicto for the death
of the victim; (2) actual or compensatory damages; (3)
moral damages; (4) exemplary damages; and (5)
temperate damages.27
There being no aggravating circumstance since, as
discussed earlier, abuse of superior strength is
absorbed in the qualifying circumstance of treachery,
the award of ₱75,000.00 as moral damages should be
decreased to ₱50,000.00. Such an amount is granted
even in the absence of proof of mental and emotional
suffering of the victim’s heirs.28
Pursuant to current jurisprudence, the award of civil
indemnity in the amount of ₱75,000.0029 and
exemplary damages in the amount of ₱30,000.0030 is
correct. The amount of actual damages duly proven in
court in the sum of ₱60,100.00 is likewise upheld.
Finally, we impose interest at the rate of 6% per
annum on all damages from the date of finality of this
ruling until fully paid.31
With regard to appellant’s conviction for simple
carnapping, we affirm the penalty of imprisonment
imposed by the Court of Appeals which is fourteen
(14) years and eight (8) months, as minimum, to
seventeen (17) years and four (4) months, as
maximum. Likewise, we uphold the order upon
appellant to pay the sum of ₱65,875.00 representing
the total amount of the installment payments made on
the motorcycle.
WHEREFORE, premises considered, the Decision
dated July 29, 2011 of the Court of Appeals in CA-G.R.
CR.-H.C. No. 04265, affirming the conviction of
appellant Joel Aquino Cendana alias "Akong" in
Criminal Cases No. 483-M-2003 and 484-M-2003, is
hereby AFFIRMED with the MODIFICATIONS that:
(1) The amount of moral damages to be paid by
appellant Joel Aquino Cendana alias "Akong" in
Criminal Case No. 483-M-2003, is decreased from
Seventy-Five Thousand Pesos (₱75,000.00) to Fifty
Thousand Pesos (PS0,000.00); and
(2) Appellant Joel Aquino Cendana alias Akong is
ordered to pay interest on all damages at the legal
rate of six percent ( 6%) per annum from the date
of finality of this judgment.
No pronouncement as to costs.
SO ORDERED.
TERESITA J. LEONARDO-DE CASTRO
Associate Justice
WE CONCUR:
MARIA LOURDES P. A. SERENO
Chief Justice
Chairperson
MARTIN S.
LUCAS P. BERSAMIN
VILLARAMA, JR.
Associate Justice
Associate Justice
BIENVENIDO L. REYES
Associate Justice
CERTIFICATION
Pursuant to Section 13, Article VIII of the
Constitution, I certify that the conclusions in the
above Decision had been reached in consultation
before the case was assigned to the writer of the
opinion of the Court’s Division.
MARIA LOURDES P. A. SERENO
Chief Justice
KIDNAPPING

16. People vs. Apole, et. al., GR No. 189820, Oct. 10,
2012

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 189820 October 10, 2012
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs.
ALBERTO M. BASAO alias "Dodong," JOVEL S.
APOLE, MELQUIADES L. APOLE, ESTRELITA1 G.
APOLE, ROLANDO A. APOLE alias "Bebot,"
VICENTE C. SALON, JAIME TANDAN, RENATO C.
APOLE alias "Boboy," ROLANDO M. OCHIVILLO
alias "Allan," LORENZO L. APOLE, JOHN DOE,
PETER DOE and MIKE DOE,Accused,
JOVEL S. APOLE, ROLANDO A. APOLE, and
RENATO C. APOLE, Accused-Appellants.
DECISION
LEONARDO-DE CASTRO, J.:
On appeal is the Decision2 dated May 29, 2009 of the
Court of Appeals in CA-G.R. CR-H.C. No. 00428-MIN,
which affirmed with modification the Joint
Decision3 dated April 20, 2006 of the Regional Trial
Court (RTC), Branch 41 of Cantilan, Surigao del Sur,
finding accused-appellants Jovel S. Apole, Renato C.
Apole, and Rolando A. Apole guilty beyond reasonable
doubt in Criminal Case Nos. C-368 (Robbery with
Violence Against or Intimidation of Persons by a
Band) and C-369 (Kidnapping for Ransom and Serious
Illegal Detention).
Accused-appellants, together with seven identified co-
accused, namely, Alberto M. Basao (Basao),
Melquiades L. Apole, Estrelita G. Apole, Lorenzo L.
Apole, Vicente C. Salon (Salon), Jaime Tandan
(Tandan), and Rolando M. Ochivillo (Ochivillo), plus
three other unidentified persons, were charged under
the following criminal Informations:
Criminal Case No. C-368
For Robbery with Violence Against or Intimidation of
Persons by a Band
That on or about the 23rd day of January, 2003 at about
7:30 o’clock in the evening, more or less, at Barangay
Bunga, municipality of Lanuza, province of Surigao del
Sur, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused,
conspiring, confederating and mutually helping one
another, with intent to gain, and armed with a short
caliber unlicensed firearms, did then and there
willfully, unlawfully and feloniously, take and carry
away from spouses YASUMITSU YASUDA HASHIBA
and EMELIE LOPIO HASHIBA cash money
amounting to Forty-Eight Thousand Pesos (₱
48,000.00), one (1) eighteen gold carats Sapphire ring,
one (1) carat emerald ring, color green, eighteen carats
gold ruby ring, color red, two (2) eighteen carats
wedding rings (engraved with initial E to Y and Y to
E) and eighteen carats gold necklace, and other
personal belongings worth more or less Thirty
Thousand Pesos (₱ 30,000.00), in the total amount of
Seventy-Eight Thousand Pesos (₱ 78,000.00), against
their consent, to the damage and prejudice of Mr. and
Mrs. Emelie Lopio Hashiba in the aforestated amount.
Criminal Case No. C-369
For Kidnapping (for Ransom) and Serious Illegal
Detention
That on the 23rd day of January 2003 at about 7:30
o’clock in the evening, at Barangay Bunga,
municipality of Lanuza, province of Surigao del Sur,
Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused,
conspiring, confederating and mutually helping one
another, armed with unlicensed firearms, did then and
there willfully, unlawfully and feloniously, kidnap
one YASUMITSU YASUDA HASHIBA, 48 years old
and a Japanese National to undisclosed place for the
purpose of extorting ransoms, wherein the latter was
detained and deprived of his liberty for the period of
more than five (5) days to the damage and prejudice of
said victim.4
Accused-appellants and their identified co-accused,
except for Tandan, were arraigned. They pleaded not
guilty to the criminal charges against them.5 After the
pre-trial proceedings, trial ensued.6
The prosecution called to the witness stand private
complainant Emelie Lopio Hashiba7 (Emelie) and her
brother Crisologo Pamad Lopio (Crisologo),8 who
testified as follows:
Witness, Emelie Hashiba testified that on January 23,
2003 at 7:30 o’clock in the evening, she and her maid
were cooking supper at their house at Bgy. Bunga,
Lanuza, Surigao del Sur. At the sala were her husband,
her three (3) children Hashiba Yuri, Hashiba Yu and
Hashiba Hisayu, her mother and the son of their
housemaid Loloy, five (5) men entered their house
with gun pointed to her younger brother, Crisologo
Lopio. One of them announced and said; "Don’t worry,
we are NPA" (New Peoples Army) and continued to
say; "Huwag kayo matakot, pera lang ang kailangan
namin", which means, (Do not be afraid, we only need
money.) "Hindi kayo maano." (You will not be
harmed.) All of them were terrified seeing the armed
men with their guns and a hand grenade. She
identified the armed men, with their height, built,
complexion and the faces, except one who was
wearing bonnet mask. Although she does not know
their names at the time of the incident on January 23,
2003, she recognized them during the trial and
identified each one of them, Jovel Apole, Renato
Apole and Rolando Apole except the two (2), whom
she failed to recognize as she forgot them.
Joven Apole and his companion brought Emelie
Hashiba upstair at the second floor at their bedroom,
which was lighted and there she was divested of
money and jewelries, 2 necklace 18 k, 4 rings 14 k,
opal, rubi, emerald and sapphire and 2 wedding rings,
worth a total of ₱ 30,000.00; cash money from the
wallet of ₱ 20,000.00 and another ₱ 28,000.00 from the
collection of their passenger jeep, samurai sword ₱
4,000.00 and icom radio, ₱ 5,000.00. She was asked if
that was her only money and she told them "yes". She
was also asked about the gun of her husband, which
she denied that her husband does not possess firearm.
Then Jovel Apole asked her if that was the only money
they had and she answered in the affirmative.
Dissatisfied with the value of their loot, Jovel Apole
and companion demanded three (3) million pesos from
her with the threat that if she will not give the amount
demanded they would bring with them her son.
Shortly thereafter, they went down and back to the
sala where YASUMITSU HASHIBA and companions
were gathered. EMELIE HASHIBA informed the
accused that they could not bring her son because he
was sick, so she offered herself as the hostage, but
brought YASUMITSU YASUDA HASHIBA instead.
Yasumitsu Hashiba vehemently objected and offered
to give them the money as soon as he goes back to
Japan, but the group did not agree and insisted on the
three (3) million pesos. Helpless, they brought
YASUMITSU HASHIBA with them after hog-tying
the occupants of the house. Before they left, they again
threatened EMELIE HASHIBA that if she failed to
produce the three (3) million pesos, YASUMITSU
HASHIBA will be killed.
Thereafter, they left riding on the Yasumitsu
Hashiba’s automobile towards the National Highway.
Regaining composures she immediately called
Yasumitsu Hashiba’s father in Japan thru SMART
LINK. She told him that his son was kidnapped and the
kidnappers are demanding three (3) million pesos. She
informed him further that if she cannot produce the
money, his son will be killed to which threat the father
assured her that he will be sending two (2) million
pesos thru the PNB, Tandag, Surigao del Sur.
On or about 7:00 o’clock in the morning of January 24,
2003 the Barangay Captain of Bunga, Lanuza, Surigao
del Sur who learned of the incident visited her house.
The latter confronted her why she did not report the
incident to the Police Station to which query she
answered that she was apprehensive her husband
would be killed if she reports the incident to the
police.
At about 10:00 o’clock of the same day she went to the
PNB Tandag to verify if the money was already
deposited in the bank, but none was deposited so she
went home empty handed. When she arrived home,
policemen from Lanuza and Tandag, Surigao del Sur
were already waiting for her. She was advised to go to
Tandag for the execution of her affidavit, which she
agreed.
On the 25th day the kidnappers called her but she was
not around. On the 26th day of January the kidnappers
again called her and instructed her to buy a cellular
phone, which she obliged. With a cellular phone she
was able to talk with the kidnappers while in Tandag,
Surigao del Sur.
They asked if the money has arrived, and she was
advised not to withdraw the money in the bank and
wait for further instructions. On January 27th and
28th, 2003 they again called but after these dates did
not receive any call from them.
On January 29, 2003, a policeman from Dinagat Island
informed her that her husband was released by the
kidnappers. Probably thinking that it was a ploy of the
kidnappers she did not go to Dinagat Island, San Jose
and instead waited for her husband in a hotel in
Tandag, Surigao del Sur.
Emelie Hashiba’s version of the incident was
corroborated by Crisologo Lopio, a younger brother of
the former. He declared that he is the driver of
Yasumitsu Hashiba of a passenger jitney. At six (6)
P.M. on January 23, 2003, he was at the house of his
parents which is only 15 meters away from his house
at Bunga, Lanuza, Surigao del Sur. He watched T.V. for
five (5) to ten (10) minutes and left proceeding to the
house of his sister Emelie about 30 meters from the
house of his parents.Reaching the gate of the house of
Emelie, which was lighted, he was met by two (2)
armed men with .45 cal. pistols pointed their guns to
him and told him to enter the house so that they will
talk. Entering the sala, they were ordered to sit on the
sala, his mother, Yasumitsu Hashiba, the 3 children of
Yasumitsu Hashiba, a child of their maid, his nephew,
Emelie and Mercedita were all fetched from the
kitchen and brought to the sala. Then another two (2)
armed men with .38 cal. revolver entered. The latter
armed men guarded them at the sala, while the other
two (2) brought Emelie upstairs to their bedroom.
Returning to the sala with Emelie, the two men told
them that they will bring the son of Yasumitsu
Hashiba and to be redeemed for two (2) million.
Emelie told them that the child is sick and offered
herself instead but the armed men said, "We will just
kidnap Yasumitsu Hashiba." Hashiba objected, and
asked, he will give the money if he will be allowed to
return to Japan but of no use. The armed men did not
agree and after hog-tying them, they brought out of
the house leaving a threat not to report to the Police
otherwise, they will kill Hashiba. They left,
carnapping the car owned by Yasumitsu Hashiba.
Witness Crisologo Lopio identified in Court Jovel
Apole, Rolando Apole and Renato Apole and
accordingly, one is at-large. After they left, Emelie
told them that all her jewelries and money from her
collections of their passenger jitney were taken.9
Both Emelie and Crisologo positively identified the
three accused-appellants in court. Private complainant
Yasumitsu Yasuda Hashiba (Yasumitsu) was also
supposed to take the witness stand for the prosecution
and identify the other accused in the case, but
Yasumitsu was unable to give his testimony for lack of
competent Japanese interpreters. Thus, for lack of
evidence, the prosecution moved for the provisional
dismissal of the charges against accused Alberto Basao,
Melquiades L. Apole, Estrelita G. Apole, Lorenzo L.
Apole, Vicente Salon, and Rolando Ochivillo, which
the RTC granted in its Orders10 dated May 26, 2004
and January 13, 2005.
During their turn, the defense presented the
testimonies of accused-appellants Rolando Apole11 and
Jovel Apole;12and dispensed with the testimony of
accused-appellant Renato Apole as he would be
merely corroborating those of the first two.13 Accused-
appellants denied the charges against them and
proffered the following version of events:
That on January 23, 2003, Rolando Apole was brought
by his cousins Jovel Apole and Renato Apole to the
house of Allan Ochivillo in Lanuza, Surigao del Sur.
They came from Tubajon, Dinagat Island, Surigao del
Norte to Surigao City. From Surigao City, they
boarded the Bachelor bus in going to Lanuza, Surigao
del Sur. Arriving at three (3) o’clock in the afternoon,
they went directly to the house of Allan Ochivillo.
They saw Ochivillo for the first time and they were
told by Ochivillo to stay, as he will go to the house of
his friend married to a Japanese national. When
Ochivillo returned home at 6:30 P.M., same day, they
were informed that they will proceed there because
the Japanese will see their map.
The four of them, Rolando, Jovel, Renato and Allan
Ochivillo went to the house of the Japanese arriving
there at 7:00 o’clock P.M. Allan Ochivillo went inside
first followed by Jovel, while Rolando and Renato
stayed outside. They were met by the Japanese wife
and shook hands. Allan Ochivillo talked to the wife of
the Japanese at the sala and after the Japanese signal to
go up because there were children viewing T.V., Jovel
brought with him the map. The Japanese, his wife,
Allan and Jovel went up the second floor. They stayed
there for 10 minutes, more or less, then they went
down. Then Allan Ochivillo said, "let’s go". The
Japanese wife said; "Take care of my husband because
we can still make money". She further said; "You just
use my car and here is the key", given to Allan
Ochivillo. The car was driven by the Japanese with
Allan Ochivillo in the front seat.
On the way, the Japanese looked at the map for a while
and talked to Allan Ochivillo in Tagalog, "this map
have signs, and there is treasure in there, a tree, fish,
starfish and a mountain."
Arriving at Surigao City, they alighted at Sabang and
they took a pumpboat and proceeded to the area where
the treasure was to be found at Tambongan, Tubajon,
while Ochivillo remained at Surigao City.
They arrived at Tambungan, Tubajon, Surigao del
Norte on the 24th of January 2003. They were housed
in the house of their uncle. In the afternoon, they
verified and found that the treasure was already dug
up, as there were signs of digging already.
On January 25, 2003, Jovel Apole arrived and informed
Rolando and Renato that according to Allan Ochivillo,
the wife of the Japanese will file a case against them
and was told that each of them will receive ₱
100,000.00 to kill the Japanese.
They did not kill the Japanese but released him in San
Jose, Dinagat Island, Surigao del Norte.
Their uncle Lorenzo Apole, Estrelita Apole and
Melquiades were arrested in connection with the
kidnapping of the Japanese. Rolando and Renato went
to the house of the brother of Police Director Gonzales
at Surigao City to ask why Lorenzo, Melquiades and
Estrelita Apole were arrested. Jovel Apole followed
and the 3 of them went to the house of Gonzales
guided by Nay Nita. They saw Melquiades, Lorenzo
and Estrelita Apole in the house of Gonzales and after
that they were brought to the barracks at Tandag.
Then, they were charged of two cases. They denied the
truth of the testimonies of Emelie Hashiba and
Crisologo Lopio. They denied having robbed and
kidnapped Yasumitsu Hashiba.14
For rebuttal, the prosecution recalled Emelie15 and
presented Ochivillo16 as witnesses. Both prosecution
witnesses refuted accused-appellants’ version of
events. Emelie denied seeing Ochivillo at their house
or any treasure map. She added that accused-
appellants carried short firearms; that when accused-
appellants left with Yasumitsu, Renato C. Apole drove
the car; and that the ₱ 3,000,000.00 would be paid
within four days and would be taken from the parked
car. Ochivillo, for his part, avowed that he did not
know accused-appellants personally; that he had not
seen a treasure map; that at the time of the incident,
he was having a drinking spree with his neighbor; and
that he only met accused-appellants for the first time
in Tandag when he was arrested.
The cases were submitted for decision without any
documentary evidence for the prosecution and the
defense.17
On April 20, 2006, the RTC promulgated its Joint
Decision, with a dispositive portion that reads:
WHEREFORE, finding the accused JOVEL APOLE y
SALVADOR, ROLANDO APOLE y ARANA, and
RENATO APOLE y CANTORNE, guilty beyond
reasonable doubt of the crimes:
A. For the crime of Robbery in Band in Criminal Case
No. C-368, each of the accused JovelApole y Salvador,
Rolando Apole y Arana and Renato Apole y Cantorne,
is sentenced to suffer the indeterminate penalty of SIX
(6) YEARS, FOUR (4) MONTHS and ONE (1) DAY of
prision mayor as minimum to EIGHT (8) YEARS, TEN
(10) MONTHS and ONE (1) DAY of prision mayor
medium as maximum; to pay the private complainants
the sum of ₱ 78,000.00; ₱ 50,000.00 as moral damages
and ₱ 25,000.00 as exemplary damages and to pay the
cost.
B. For the crime of kidnapping for ransom and serious
illegal detention in Criminal Case No. C-369, each of
the accused Jovel Apole y Salvador, Rolando Apole y
Arana, and Renato Apole y Cantorne, is sentenced to
suffer the supreme penalty of death; to pay the private
complainants the sum of ₱ 50,000.00 as moral damages
and ₱ 25,000.00 as exemplary damages and to pay the
cost.
In line with the decision of the Supreme Court in
People vs. Mateo, G.R. Nos. 147678-87, dated July 7,
2004, let this decision be forwarded to the Court of
Appeals, YMCA Building, Cagayan de Oro City for
automatic review within twenty (20) days but not
earlier than fifteen (15) days after the promulgation of
judgment. Let the living body of the convicted
prisoners, Jovel Apole y Salvador, Rolando Apole y
Arana and Renato Apole y Cantorne, be brought to the
New Bilibid Prison, Muntinlupa City, on maximum
security.18
Pursuant to the Commitment of Final
Sentence19 issued by the RTC on May 12, 2006,
accused-appellants were received and imprisoned at
the New Bilibid Prison, Muntinlupa City, on even
date.20
In the meantime, the cases were forwarded to the
Court of Appeals on automatic review. Accused-
appellants, represented by the Public Attorney’s
Office, filed their Brief21 on January 17, 2008 while
plaintiff-appellee, represented by the Office of the
Solicitor General, filed its Brief22 on May 12, 2008.
The Court of Appeals rendered its Decision on May 29,
2009, agreeing with the findings of fact and judgments
of conviction of the RTC, but modifying the penalties
imposed and amount of damages awarded, to wit:
Anent the penalty imposed in Criminal Case No. C-
369, the court a quo convicted accused-appellants with
the supreme penalty of death as provided under
Article 267 of the Revised Penal Code. However, with
the enactment of Republic Act No. 9346 which
proscribed the death penalty, the appropriate penalty
for the crime of kidnapping and serious illegal
detention with ransom is now reclusion perpetua.
Furthermore, under Article 100 of the Revised Penal
Code, every person criminally liable for a felony is also
civilly liable.
In the case of kidnapping for ransom, the amount of ₱
50,000.00 as civil indemnity is awarded in favor of
complainant Emelie Hashiba in conformity with
jurisprudence. Likewise, another amount of ₱
50,000.00 as civil indemnity is awarded for the crime
of robbery in band.23
Ultimately, the appellate court decreed:
WHEREFORE, premises foregoing, the instant appeal
is hereby DISMISSED and the assailed Decision is
hereby AFFIRMED with modification insofar as the
penalty imposed and the award of damages are
concerned. Consequently, accused-appellants are
hereby SENTENCED to the following:
1. For the crime of Robbery in Band in Criminal Case
No. C-368, each of the accused-appellant Jovel Apole
y Salvador, Rolando Apole y Arana and Renato Apole
y Cantorne, is sentenced to suffer the indeterminate
penalty of SIX (6) YEARS, FOUR (4) MONTHS and
ONE (1) DAY of prision mayor as minimum to EIGHT
(8) YEARS, TEN (10) MONTHS and ONE (1) DAY of
prision mayor medium as maximum; to pay the private
complainants the sum of ₱ 78,000.00 as actual
damages; ₱ 50,000.00 as civil indemnity; ₱ 50,000.00
as moral damages; and ₱ 25,000.00 as exemplary
damages and to pay the cost.
2. For the crime of Kidnapping for Ransom and Serious
Illegal Detention in Criminal Case No. C-369, each of
the accused Jovel Apole y Salvador, Rolando Apole y
Arana, and Renato Apole y Cantorne, is sentenced to
suffer the penalty of reclusion perpetua; to pay the
private complainants the sum of ₱ 50,000.00 as civil
indemnity; ₱ 50,000.00 as moral damages; and ₱
25,000.00 as exemplary damages and to pay the cost.24
Accused-appellants now seek recourse from this Court
through the instant appeal.
The Court required the parties to file their respective
supplemental briefs, if they so desire, in a
Resolution25 dated December 2, 2009. However, all the
parties manifested that they have exhausted their
arguments before the Court of Appeals, thus, they
would no longer file any supplemental brief.26
In their Brief, accused-appellants assigned the
following errors allegedly committed by the RTC:
I.
THE COURT A QUO GRAVELY ERRED IN GIVING
FULL CREDENCE TO THE TESTIMONIES OF THE
PROSECUTION WITNESSES DESPITE THEIR
INHERENT INCREDIBILITIES AND
IRRECONCILABLE INCONSISTENCIES.
II.
THE COURT A QUO ERRED IN CONVICTING THE
ACCUSED-APPELLANTS DESPITE THE FAILURE
OF THE PROSECUTION TO PROVE THEIR GUILT
BEYOND REASONABLE DOUBT.27
Plaintiff-appellee contends that accused-appellants
were correctly convicted and even prays that the civil
indemnity awarded in Criminal Case No. C-369 be
increased.
The appeal is bereft of merit.
In this case, accused-appellants’ appeal is chiefly
grounded on their challenge of the credibility of the
prosecution witnesses and veracity of the latter’s
testimonies, to which both the RTC and the Court of
Appeals gave more credence and weight.
As consistently adhered to by this Court, the matter of
assigning values to declarations on the witness stand is
best and most competently performed by the trial
judge, who had the unmatched opportunity to observe
the witnesses and to assess their credibility by the
various indicia available but not reflected on the
record. The demeanor of the person on the stand can
draw the line between fact and fancy. The forthright
answer or the hesitant pause, the quivering voice or
the angry tone, the flustered look or the sincere gaze,
the modest blush or the guilty blanch – these can
reveal if the witness is telling the truth or lying
through his teeth.28
Consequently, the settled rule is that when the
credibility of a witness is in issue, the findings of fact
of the trial court, its calibration of the testimonies of
the witnesses and its assessment of the probative
weight thereof, as well as its conclusions anchored on
said findings are accorded high respect if not
conclusive effect. This is more true if such findings
were affirmed by the appellate court, since it is settled
that when the trial court’s findings have been affirmed
by the appellate court, said findings are generally
binding upon this Court.29 Without any clear showing
that the trial court and the appellate court overlooked,
misunderstood or misapplied some facts or
circumstances of weight and substance, the rule
should not be disturbed.30
The Court finds no cogent reason to disturb, and is,
therefore, conclusively bound by the findings of fact
and judgments of conviction rendered by the RTC,
subsequently affirmed by the Court of Appeals.
The testimonies of Emelie and Crisologo established
beyond reasonable doubt the commission by accused-
appellants of the crimes of robbery by a band and
kidnapping for ransom.
The crime of robbery under Article 293 of the Revised
Penal Code has the following elements: (a) intent to
gain, (b) unlawful taking, (c) personal property
belonging to another, and (d) violence against or
intimidation of person or force upon things. Under
Article 296 of the same Code, "when more than three
armed malefactors take part in the commission of
robbery, it shall be deemed to have been committed
by a band." It further provides that "any member of a
band who is present at the commission of a robbery by
the band, shall be punished as principal of any of the
assaults committed by the band, unless it be shown
that he attempted to prevent the same."31
All of the foregoing elements had been satisfactorily
established herein. At least five (5) people, including
accused-appellants, carrying guns and a hand grenade,
barged into the home of, and forcibly took pieces of
jewelry and other personal properties belonging to,
spouses Yatsumitsu and Emelie Hashiba. Accused-
appellants themselves made their intent to gain clear
when they assured their victims that they were only
after the money.
As for the crime of kidnapping, the following
elements, as provided in Article 267 of the Revised
Penal Code, must be proven: (a) a person has been
deprived of his liberty, (b) the offender is a private
individual, and (c) the detention is unlawful.32 The
deprivation required by Article 267 means not only
the imprisonment of a person, but also the deprivation
of his liberty in whatever form and for whatever
length of time. It involves a situation where the victim
cannot go out of the place of confinement or detention
or is restricted or impeded in his liberty to move. In
other words, the essence of kidnapping is the actual
deprivation of the victim’s liberty, coupled with
indubitable proof of the intent of the accused to effect
such deprivation.33
In the present case, Yasumitsu was evidently deprived
by accused-appellants of his liberty for seven days.
Armed with guns and a grenade, accused-appellants
and their cohorts took Yasumitsu from the latter’s
home in Lanuza, Surigao del Sur, to Surigao City, by
car; and then all the way to Tubajon, Surigao del
Norte, by boat. Accused-appellants held Yasumitsu
from January 23 to January 29, 2003. During said
period, Yasumitsu was unable to communicate with
his family or to go home. Also during the same period,
accused-appellants called Emelie several times to ask
whether the ₱ 3,000,000.00 ransom payment was
already available.
The Court rejects accused-appellants’ claim that
Yasumitsu went with them voluntarily. As the RTC
acutely observed:
The claim of the defense that the victim Hashiba was
not kidnapped but on his volition to go with them by
reason of the treasure map implying that the Japanese
would join them in the treasure hunt, is a ridiculous
attempt of the accused to extricate themselves from
the offense they are in. This Court is not convinced.
Having observed all the demeanors of the witnesses,
the Prosecution’s evidence is more in accord with
reason and logic. The accused protestations that they
sought the services of the Japanese to interpret the
treasure map and finally went with them freely to
Tubajon, taxes credulity. Simple imagination militates
against such pretended defenses. Firstly, if the
intention of the accused was only for the purpose of
requesting the Japanese to interpret the treasure map,
why would the reading and interpretation be brought
to the second floor and right at the bedroom of the
victim, whom it could have been done at the living
room? Secondly, why only the Japanese was brought
to the alleged location in Tubajon? This Court takes
notice that the Japanese cannot speak Filipino
language or dialect. It was even the reason why the
Japanese was not able to testify because of the lack of
interpreter due to the objection of the accused for the
wife to interpret the supposed testimony of the
Japanese. Bringing along with them the Japanese to
read the treasure map is not in keeping with reason
because the Japanese could not be understood.
Certainly, the Japanese needs interpreter.
Again, the claim of the accused that they freely
released the Japanese at San Jose after finding that the
area was already dug up did not convince the Court.
They released the Japanese after they knew that the
authorities were looking for them and that
Melquiades, Lorenzo and Estrelita Apole were already
arrested.34
Under Article 8 of the Revised Penal Code, there is
conspiracy when two or more persons come to an
agreement concerning a felony and decide to commit
it. It may be inferred from the acts of the accused
before, during or after the commission of the crime
which, when taken together, would be enough to
reveal a community of criminal design, as the proof of
conspiracy is frequently made by evidence of a chain
of circumstances. To be a conspirator, one need not
participate in every detail of the execution; he need
not even take part in every act or need not even know
the exact part to be performed by the others in the
execution of the conspiracy. Each conspirator may be
assigned separate and different tasks which may
appear unrelated to one another but, in fact, constitute
a whole collective effort to achieve their common
criminal objective. Once conspiracy is shown, the act
of one is the act of all the conspirators. The precise
extent or modality of participation of each of them
becomes secondary, since all the conspirators are
principals.35
There is conspiracy among accused-appellants and
their cohorts when they kidnapped Yasumitsu. Their
community of criminal design could be inferred from
their arrival at the Hashiba’s home already armed with
weapons, as well as from their clearly designated roles
upon entry into the house (i.e., some served as
lookouts; some accompanied Emelie to the second
floor to look for jewelry, cash, and other property to
take; and some guarded and hogtied the other people
in the house) and in the abduction of Yasumitsu (i.e.,
Jovel S. Apole went back to Surigao City to secure the
release of the ransom money while Renato C. Apole
and Rolando A. Apole stayed in Tubajon to guard
Yasumitsu). The Court concurs with the RTC that "all
these acts were complimentary to one another and
geared toward the attainment of a common ultimate
objective to extort a ransom of three (3) million in
exchange for the Japanese’s freedom."
The alleged inconsistencies or conflict in the
prosecution witnesses’ testimonies were already
rejected by the Court of Appeals for the same only
pertain to minor details which have inconsequential
significance. The appellate court elaborated thus:
Accused-appellants now insist that the conflicting
testimonies of the prosecution witnesses are
inconsistent thereby creating reasonable doubt as to
their culpability. One such inconsistency is when
Emelie allegedly testified that her husband
vehemently objected to go with the assailants contrary
to her statements in her affidavit that her husband
voluntarily went with the malefactors in lieu of their
son. Accused-appellants also allege that Emelie’s
testimony that there were five (5) armed men
contradicted with Crisologo Lopio’s testimony that
there were only four (4) armed men. Accused-
appellants further allege that it is rather unusual in a
kidnapping situation that the kidnappers failed to give
instructions as to how the ransom money would be
delivered and how the victim would then be released.
Likewise, it was allegedly disturbing that during the
incident it was Emelie herself who gave her telephone
number to the armed men and told them to call her
and even offered the car instead of the jeepney.
Accused-appellants also point out that after Emelie
withdrew the ransom money from the bank, she
seemed to have just lost contact with the alleged
kidnappers and records allegedly failed to show that
she exerted efforts to ascertain the whereabouts of her
husband. x x x.
We disagree.
The above alleged inconsistencies are of minor and
inconsequential importance. Both witnesses agreed
and identified the three accused-appellants to have
been the armed malefactors. The testimonies of the
victims were straightforward and there was no
showing of any ill motive on their part to falsely testify
against accused-appellants. Clearly, positive
identification of the accused where categorical and
consistent and without any showing of ill motive on
the part of the eyewitnesses testifying on the matter
prevails over his defense. When there is no evidence
to show any dubious reasons or improper motive why
a prosecution witness would testify falsely against the
accused or falsely implicate them in a heinous crime,
the testimony is worthy of full faith and credit.
Furthermore, issues of sufficiency of evidence are
resolved by reference to findings of the trial court that
are entitled to the highest respect on appeal in the
absence of any clear and overwhelming showing that
the trial court neglected, misunderstood or misapplied
some facts or circumstances of weight and substance
affecting the result of the case.36
In People v. Delim,37 the Court further pronounced
that a truth-telling witness is not always expected to
give an error-free testimony considering the lapse of
time and the treachery of human memory. What is
primordial is that the mass of testimony jibes on
material points, the slight clashing of statements dilute
neither the witnesses’ credibility nor the veracity of
his testimony. Variations on the testimony of
witnesses on the same side with respect to minor,
collateral, or incidental matters do not impair the
weight of their united testimony to the prominent
facts. Inconsistencies on minor and trivial matters only
serve to strengthen rather than weaken the credibility
of witnesses for they erase the suspicion of rehearsed
testimony.
Despite affirming the judgments of conviction against
accused-appellants, the Court still modifies the
penalties imposed and amounts of damages awarded
by the Court of Appeals.
In Criminal Case No. C-368, accused-appellants are
convicted of the crime of Robbery with Violence
Against or Intimidation of Persons Committed by a
Band. The penalty prescribed for said crime under
Article 294(5), in relation to Article 295 of the Revised
Penal Code, is the maximum period of the penalty
prision correccional in its maximum period to prision
mayor in its medium period.38 The Indeterminate
Sentence Law additionally provides that the maximum
of the sentence shall be that which could be properly
imposed in view of the attending circumstances, and
the minimum shall be within the range of the penalty
next lower to that prescribed by the Revised Penal
Code.
In accused-appellants’ case, the maximum of the
sentence should be within the range of the maximum
period of prision correccional in its maximum period
to prision mayor in its medium period, which shall be
from eight (8) years and twenty-one (21) days to ten
(10) years; while the minimum of the sentence should
be within the range of arresto mayor in its maximum
period to prision correccional in its medium period,
which has a duration of four (4) months and one (1)
day to four (4) years and two (2) months. As a result,
the Court imposes upon accused-appellants the
penalty of imprisonment for Four (4) years and Two
(2) months of prision correccional, as minimum, to
Ten (10) years of prision mayor, as
maximum.1awp++i1
The Court sustains the award of actual or
compensatory, moral, and exemplary damages in favor
of private complainants. Actual damages are awarded
as the compensation for such pecuniary loss suffered
by the complainant as he has duly proved while moral
damages may be recovered if the complainant
suffered, among others, mental anguish, fright, serious
anxiety, and similar injuries.39 Exemplary damages, on
the other hand, are imposed by way of example or
correction for the public good and may be adjudicated
in criminal cases if the crime was committed with one
or more aggravating circumstances and the
complainant has shown that he is entitled to moral,
temperate, or compensatory damages.40 In this case,
private complainants have duly proven that they were
robbed of their cash and jewelries, and that they felt
terrified during such time, thus, entitling them to be
paid actual and moral damages. Considering also that
the robbery was committed with the inherent
aggravating circumstance of a band, and to set an
example for the public good, the award of exemplary
damages is in order. The award of additional civil
indemnity, however, should be deleted for lack of
legal basis.
In Criminal Case No. C-369, where accused-appellants
are convicted of the crime of Kidnapping for Ransom
and Serious Illegal Detention, the Court of Appeals
correctly reduced their sentence from death to
reclusion perpetua considering the passage of Republic
Act No. 9346, prohibiting the imposition of the death
penalty. The Court likewise emphasizes that accused-
appellants shall not be eligible for parole. Under
Section 3 of Republic Act No. 9346, "persons convicted
of offenses punished with reclusion perpetua, or
whose sentences will be reduced to reclusion
perpetua, by reason of this Act, shall not be eligible for
parole under Act No. 4180, otherwise known as the
Indeterminate Sentence Law, as amended."41
There is also need to modify the damages awarded in
Criminal Case No. C-369 in line with prevailing
jurisprudence.42 Accused-appellants are to pay
Yasumitsu the amounts of ₱ 75,000.00 as civil
indemnity, which is awarded if the crime warrants the
imposition of the death penalty; ₱ 75,000.00 as moral
damages, because the victim is assumed to have
suffered moral injuries without need of proof; and ₱
30,000.00 as exemplary damages, to set an example for
the public good.
WHEREFORE, the Court AFFIRMS with
MODIFICATION the Decision dated May 29, 2009 of
the Court of Appeals in CA-G.R. CR.-H.C. No. 00428-
MIN, which affirmed with modification the Joint
Decision dated April 20, 2006 of the Regional Trial
Court, Branch 41 of Cantilan, Surigao del Sur, to read
as follows:
1) In Criminal Case No. C-368, the Court finds
accused-appellants Jovel S. Apole, Renato C. Apole
and Rolando A. Apole GUILTY beyond reasonable
doubt of the crime of Robbery with Violence
Against or Intimidation of Persons by a Band and
sentences accused-appellants to suffer the penalty
of imprisonment for Four ( 4) years and Two (2)
months of prision correccional, as minimum, to
Ten ( 1 0) years of prision mayor, as maximum, and
to pay private complainants the amounts of
1!78,000.00 as actual damages; 1!50,000.00 as moral
damages; and ₱ 25,000.00 as exemplary damages.
2) In Criminal Case No. C-369, the Court finds
accused-appellants Jove] S. Apole, Renato C. Apole
 and Rolando A. Apole GUILTY beyond reasonable
doubt of the crime of Kidnapping for Ransom and
Serious Illegal Detention and sentences accused-
appellants to suffer the penalty of reclusion
perpetua, without the possibility of parole, and to
pay private complainants the amounts of ₱
75,000.00 as civil indemnity, ₱ 75,000.00 as moral
damages, and ₱ 30,000.00 as exemplary damages.
SO ORDERED.
TERESITA J. LEONARDO-DE CASTRO
Associate Justice
WE CONCUR:
MARIA LOURDES P. A. SERENO
Chief Justice
Chairperson
MARTIN S.
LUCAS P. BERSAMIN
VILLARAMA, JR.
Associate Justice
Associate Justice
BIENVENIDO L. REYES
Associate Justice
CERTIFICATION
Pursuant to Section 13, Article VIII of the
Constitution, I certify that the conclusions in the
above Decision had been reached in consultation
before the case was assigned to the writer of the
opinion of the Court's Division.
MARIA LOURDES P. A. SERENO
Chief Justice
17. People vs. Jerry Jacalne, GR No. 16855, Oct. 3, 2011
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 168552 October 3, 2011
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs.
JERRY JACALNE y GUTIERREZ, Accused-Appellant.
DECISION
PERALTA, J.:
For resolution is the appeal filed by appellant Jerry G.
Jacalne assailing the Court of Appeals (CA)
Decision1 dated March 31, 2005 in CA-G.R. CR-H.C.
No. 00473.
The facts of the case follow.
In an Information2 dated March 15, 1996, appellant
was charged with Kidnapping and Serious Illegal
Detention committed as follows:
That on or about the 8th day of March 1996, in the
Municipality of Las Piñas, Metro Manila, Philippines
and within the jurisdiction of this Honorable Court,
the above-named accused, who is a private individual,
without legal authority or justifiable motive, did then
and there kidnap and detain JOMARIE J. ROSALES, a
female, minor (7 years old) for the purpose of
depriving complainant of her liberty.
CONTRARY TO LAW.3
During the arraignment, appellant pleaded "not guilty"
to the crime charged.4 Trial on the merits ensued.
The prosecution established the following facts:
On March 8, 1996, at 8:00 in the morning, the victim
Jomarie Rosales (Jomarie), then seven (7) years of age,
female, residing at No. 142 Mabuhay Street, Las Piñas
City and a grade 1 pupil, attended her classes at the
CAA Elementary School in Las Piñas from 8:00 to
10:00 in the morning.5 While on her way home,
Jomarie noticed that appellant was following her. She
ran, but appellant eventually caught up with
her.6 Appellant told her that she should go with him,
but Jomarie refused and told him that her mother
would be angry.7 Jomarie held on to a post, but
appellant dragged and forced her to go to his house at
Patola Street which is 100 to 150 meters away.8
When they reached appellant’s house, appellant
placed Jomarie at the back of the steel gate of his
fenced residence.9 Thereafter, appellant went inside
the house then returned with a piece of rope.10 He
used the rope in tying the hands of Jomarie.11 Jomarie
pleaded that she be released because her mother would
be worried, but appellant refused.12
After more or less one hour, appellant untied Jomarie’s
hands and instructed her to walk straight toward the
road. He even told her not to turn left, otherwise, she
would not be able to reach home. Appellant also
threatened her not to tell anybody of what happened
or else he would kill her.13
Jomarie reached home around noon then took her
lunch.14 She did not tell her mother Marissa Rosales
(Marissa) about the incident because of fear, until after
three days.15 Marissa reported the incident to
the barangay and had it blottered.16 Jomarie and
Marissa went to Patola Street where the house of
appellant is located. Upon seeing appellant, Jomarie
pointed him as the person who committed the crime.17
On March 14, 1996, Jomarie, accompanied by her
mother, executed a Sworn Statement18 before SPO1
Benjamin M. Javier. While inside the police station,
Jomarie identified appellant (who was inside the
investigation room) as the perpetrator.19
Appellant, on the other hand, denied the accusation
against him. He explained that on March 12, 1996,
while in his house painting a tricycle, Jomarie,
Marissa, and two others approached him then asked if
he is familiar with a nipa hut or a house surrounded by
plants, which he answered in the negative.20 They
likewise mentioned to him about an incident whereby
a child was tied and raped. After telling them that he
was not aware of the incident, the four left.21 In the
afternoon of the same day, Marissa and Jomarie
allegedly returned to his place. This time, they talked
to appellant’s neighbors. The following day, he was
arrested.22
The defense also presented Marites Calzado,23 George
Resurreccion24 and Joseph Conmigo, as
witnesses.25Their testimonies tend to prove that in
many occasions, Jomarie denied that it was appellant
who kidnapped her.26
On May 29, 2000, the Regional Trial Court of Las Piñas
City (RTC), Branch 275, rendered a Decision27 finding
the appellant guilty beyond reasonable doubt of the
crime charged and sentenced him to suffer the penalty
of reclusion perpetua.
Appellant appealed to this Court. Conformably with
our ruling in People v. Mateo,28 however, the case was
referred to the CA for intermediate review.29
In its Decision30 dated March 31, 2005, the CA
affirmed in toto the decision of the court a quo. Thus,
this appeal raising the sole error:
THE HONORABLE COURT OF APPEALS GRAVELY
ERRED IN AFFIRMING THE D E C I S I O N OF THE
TRIAL COURT CONVICTING THE ACCUSED-
APPELLANT OF THE CRIME OF KIDNAPPING
WITH SERIOUS ILLEGAL DETENTION.31
Appellant assails the trial and appellate courts’
appreciation of the credibility of the witnesses for the
prosecution. He submits that the court failed to
consider certain facts and circumstances, which have
affected the credibility of Jomarie.32 He explains that
Jomarie either failed to identify appellant or has
categorically denied that he was the one who allegedly
kidnapped her.33
We do not find any reason to depart from the
conclusions of the trial and appellate courts.
Time and again, we have ruled that the findings of the
trial court on the credibility of witnesses and their
testimonies are entitled to the highest respect and will
not be disturbed on appeal in the absence of any clear
showing that the trial court overlooked,
misunderstood or misapplied some facts or
circumstances of weight and substance which would
have affected the result of the case.34 The trial court
has the singular opportunity to observe the witnesses
through the different indicators of truthfulness or
falsehood, such as the angry flush of an insisted
assertion or the sudden pallor of a discovered lie or the
tremulous mutter of a reluctant answer or the
forthright tone of a ready reply; or the furtive glance,
the blush of conscious shame, the hesitation, the
sincere or the flippant or sneering tone, the heat, the
calmness, the yawn, the sigh, the candor or lack of it,
the scant or full realization of the solemnity of an oath,
the carriage and mien.35
Kidnapping and serious illegal detention is defined and
punished under Article 267 of the Revised Penal Code
(RPC), as amended by Republic Act (RA) 7659:
ART. 267. Kidnapping and serious illegal detention. -
Any private individual who shall kidnap or detain
another, or in any other manner deprive him of his
liberty, shall suffer the penalty of reclusion
perpetua to death:
 1. If the kidnapping or detention shall have lasted
more than three days.
2. If it shall have been committed simulating public
authority.
3. If any serious physical injuries shall have been
inflicted upon the person kidnapped or detained,
or if threats to kill him shall have been made.
4. If the person kidnapped or detained shall be a
minor, except when the accused is any of the
parents, female or a public officer.
The penalty shall be death where the kidnapping or
detention was committed for the purpose of extorting
ransom from the victim or any other person, even if
none of the circumstances abovementioned were
presented in the commission of the offense.
When the victim is killed or dies as a consequence of
the detention or is raped, or is subjected to torture or
dehumanizing acts, the maximum penalty shall be
imposed.
The crime has the following elements: (1) the offender
is a private individual; (2) he kidnaps or detains
another, or in any manner deprives the latter of his
liberty; (3) the act of detention or kidnapping is illegal;
and (4) in the commission of the offense, any of the
following circumstances is present: (a) the kidnapping
or detention lasts for more than three days; (b) it is
committed by simulating public authority; (c) any
serious physical injuries are inflicted upon the person
kidnapped or detained or threats to kill him are made;
or (d) the person kidnapped or detained is a minor,
female or a public official.36
Records show that the prosecution established the
above elements.
It is undisputed that appellant is a private individual.
As to the second, third and fourth elements, we agree
with the trial court, as affirmed by the CA, that
Jomarie’s and Marissa’s testimonies adequately
showed that indeed, appellant kidnapped Jomarie, a
minor, and detained her for more or less an hour.
The essence of the crime of kidnapping is the actual
deprivation of the victim’s liberty, coupled with the
intent of the accused to effect it.37 It includes not only
the imprisonment of a person but also the deprivation
of his liberty in whatever form and for whatever
length of time.38 It involves a situation where the
victim cannot go out of the place of confinement or
detention, or is restricted or impeded in his liberty to
move.39
In this case, appellant dragged Jomarie, a minor, to his
house after the latter refused to go with him. Upon
reaching the house, he tied her hands. When Jomarie
pleaded that she be allowed to go home, he refused.
Although Jomarie only stayed outside the house, it was
inside the gate of a fenced property which is high
enough such that people outside could not see what
happens inside. Moreover, when appellant tied the
hands of Jomarie, the former’s intention to deprive
Jomarie of her liberty has been clearly shown. For
there to be kidnapping, it is enough that the victim is
restrained from going home.40 Because of her tender
age, and because she did not know her way back home,
she was then and there deprived of her liberty.41 This
is irrespective of the length of time that she stayed in
such a situation. It has been repeatedly held that if the
victim is a minor, the duration of his detention is
immaterial.42This notwithstanding the fact also that
appellant, after more or less one hour, released Jomarie
and instructed her on how she could go home.
Against the categorical testimonies of the prosecution
witnesses, appellant can only offer the defense of
denial. However, denial is a self-serving negative
evidence, which cannot be given greater weight than
that of the declaration of a credible witness who
testifies on affirmative matters.43 Like alibi, denial is
inherently a weak defense, which cannot prevail over
the positive and credible testimonies of prosecution
witnesses who, as in this case, were not shown to have
any ill-motive to testify against appellant.44
While indeed the defense offered the testimonies of
three witnesses who claimed that they heard Jomarie
deny that it was appellant who committed the crime,
said evidence is insufficient to rebut Jomarie’s
testimony in court on how the crime was committed
and who committed it. Appellant himself admitted
that Jomarie and Marissa have no reason to lie. In
other words, he cannot attribute any ill-motive on the
part of the prosecution witnesses to fabricate a story
and implicate him in the commission of the crime
charged.1avvphi1
Article 267 of the RPC prescribes the penalty of
reclusion perpetua to death. There being no
aggravating or modifying circumstance in the
commission of the offense, the RTC (as affirmed by the
CA), correctly imposed the penalty of reclusion
perpetua, pursuant to Article 63 of the RPC.45
In line with prevailing jurisprudence,46 appellant shall
be made to answer for ₱50,000.00 as civil indemnity.
Pursuant to Article 221947 of the Civil Code, appellant
shall likewise be liable for the payment of ₱50,000.00
as moral damages.48
WHEREFORE, premises considered, the Court of
Appeals Decision dated March 31, 2005 in CA-G.R.
CR-H.C. No. 00473, is AFFIRMED with
MODIFICATION.
Appellant Jerry G. Jacalne is hereby found guilty
beyond reasonable doubt of Kidnapping and Serious
Illegal Detention and is meted the penalty of reclusion
perpetua. He is likewise ordered to pay the victim
Jomarie Rosales P50,000.00 as civil indemnity and
₱50,000.00 as moral damages.
SO ORDERED.
DIOSDADO M. PERALTA
Associate Justice
WE CONCUR:
PRESBITERO J. VELASCO, JR.
Associate Justice
Chairperson
JOSE CATRAL
ROBERTO A. ABAD
MENDOZA
Associate Justice
Associate Justice
ESTELA M. PERLAS-BERNABE
Associate Justice
ATTESTATION
I attest that the conclusions in the above Decision had
been reached in consultation before the case was
assigned to the writer of the opinion of the Court’s
Division.
PRESBITERO J. VELASCO, JR.
Associate Justice
Third Division, Chairperson
CERTIFICATION
Pursuant to Section 13, Article VIII of the
Constitution and the Division Chairperson’s
Attestation, I certify that the conclusions in the above
Decision had been reached in consultation before the
case was assigned to the writer of the opinion of the
Court’s Division.
RENATO C. CORONA
Chief Justice
ROBBERY

18. People vs. Nonoy Ebet, GR No. 181635, Nov. 15,

2010

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 181635 November 15, 2010
PEOPLE OF THE PHILIPPINES, Appellee,
vs.
NONOY EBET, Appellant.
DECISION
PERALTA, J.:
Before this Court is the appeal from the Decision1 of
the Court of Appeals (CA) in CA-G.R. CR-H.C. No.
00257, dated July 31, 2007, which sustained the
judgment2 of the Regional Trial Court (RTC) in
Criminal Case No. 86-97 dated October 12, 1999,
finding appellant Nonoy Ebet guilty beyond
reasonable doubt of the crime of Robbery with
Homicide.
The facts, as shown in the records, are the following:
On February 3, 1997, around 7:30 p.m., three (3) men
entered the house of the spouses Gabriel Parcasio and
Evelyn Parcasio. Of the three men, Evelyn recognized
one of them to be appellant Ebet, having been a
constant visitor of her husband. Upon entering, one of
the unidentified men poked a gun at Evelyn, while
another unidentified man wielding a knife, held
Evelyn's daughter, Joan. At that moment, Evelyn saw
appellant holding a knife and standing at the door of
the house. The men asked Evelyn where her husband
was hiding and compelled her to lead them to the
house's underground. After the two unidentified men
reached the underground, Evelyn heard her husband
shout for her and her daughters to run, which the
latter did. Thereafter, a gunshot was heard, as well as
a commotion underground. Joan, after hearing the
gunshot, returned to the house fearing that her mother
was shot. It was then that the men accosted her and
asked for her money. With no money to give, the men
took her bag worth One Hundred Thirty Pesos
(₱130.00), a wrist watch worth One Hundred Twenty-
Five Pesos (₱125.00) and Thirty Pesos (₱30.00) cash,
the total of which is Two Hundred Eighty-Five Pesos
(₱285.00). When the men left the premises, Evelyn
went back to their house and saw her husband
bleeding to death due to multiple stab wounds. The
husband eventually died due to the said stab wounds.
Thus, an Information3 dated July 10, 1997 was filed,
charging appellant with the crime of Robbery with
Homicide, which reads:
That on or about February 3, 1997, in the Municipality
of Kidapawan, Province of Cotabato, Philippines, the
said accused, in company with JOHN DOE and PETER
DOE, whose identities are still unknown and at large,
armed with handgun and knife, conspiring,
confederating and mutually helping one another, with
intent to gain by means of violence and intimidation,
did then and there, willfully and forcibly get, rob and
carry away, one (1) wrist watch worth ONE
HUNDRED TWENTY-FIVE PESOS (₱125.00); one (1)
school bag worth ONE HUNDRED THIRTY PESOS
(₱130.00); and cash amounting to THIRTY PESOS
(₱30.00), with the total amount of TWO HUNDRED
EIGHTY-FIVE PESOS (₱285.00), Philippine
Currency, owned by JOAN PARCASIO, to the damage
and prejudice of JOAN PARCASIO.
That on the same occasion, above-named accused with
intent to kill, willfully, unlawfully and feloniously
attack, assault, stab, shot and use physical violence to
the person of GABRIEL PARCASIO, JR., thus
inflicting upon the latter multiple stab wounds in the
different parts of his body, which caused his death
thereafter.
CONTRARY TO LAW.
When arraigned4 on September 17, 1997, appellant,
assisted by counsel, pleaded not guilty to the crime
charged against him.
Consequently, the trial on the merits ensued.
The prosecution presented the testimonies of Evelyn
Parcasio and Joan Parcasio, testifying as to the facts
narrated earlier.
For his defense, appellant presented his own
testimony, as well as those of Virgilio Balili, Fernando
Saud and Feliciano Jordan. Based on their testimonies,
the following transpired:
On February 3, 1997, appellant was in the house of
Agri Saud, which was 200 meters away from the house
of Gabriel and Evelyn Parcasio. Appellant was in the
said house from 5:00 p.m. until 9:00 p.m. He was there
butchering a pig, together with Agri Saud, Efren Leon,
Willy Estigoy and Feliciano Jordan. Appellant claimed
that he never left the house or the group from the time
he arrived at Agri Saud's house until they dispersed
later in the evening.
The trial court found appellant guilty beyond
reasonable doubt of the crime of Robbery with
Homicide. The dispositive portion of the Decision
reads:
WHEREFORE, prescinding from the foregoing facts
and considerations, the Court finds accused Nonoy
Ebet guilty beyond reasonable doubt as principal by
direct participation of the crime of Robbery with
Homicide, hereby sentenced him to suffer the penalty
of Reclusion Perpetua. He is hereby ordered to
indemnify the heirs of Gabriel Parcasio the sum of
₱50,000.00.
With costs de officio.
IT IS SO ORDERED.5
A Notice of Appeal6 was filed and this Court accepted
the appeal. However, in a Resolution7 dated
September 15, 2004, this Court transferred the case to
the CA, in conformity with People of the Philippines
v. Efren Mateo y Garcia,8 modifying the pertinent
provisions of the Revised Rules on Criminal
Procedure, more particularly Sections 3 and 10 of Rule
122, Section 13 of Rule 124, Section 3 of Rule 125 and
any other rule insofar as they provide for direct
appeals from the RTCs to this Court in cases where the
penalty imposed is death, reclusion perpetua or life
imprisonment, as well as the resolution of this
Court’s en banc, dated September 19, 1995, in Internal
Rules of the Supreme Court in cases similarly
involving the death penalty, pursuant to the Court's
power to promulgate rules of procedure in all courts
under Section 5, Article VIII of the Constitution, and
allowing an intermediate review by the Court of
Appeals before such cases are elevated to this Court.
On July 31, 2007, the CA affirmed with modification
the decision of the trial court. The dispositive portion
of the Decision reads:
WHEREFORE, the assailed Decision is AFFIRMED
with MODIFICATION that appellant shall pay
₱50,000.00 as civil indemnity, ₱50,000.00 as moral
damages, ₱25,000.00 as temperate damages and to
return the wrist watch, school bag and ₱30.00 in cash
or pay its reasonable value in the total amount of
P285.00 in case restitution is not feasible, to the heirs
of the victim.
SO ORDERED.9
Hence, the present appeal.
In his Brief,10 appellant assigned the following errors:
I
THE TRIAL COURT ERRED IN GIVING FULL
CREDENCE TO THE TESTIMONIES OF THE
PROSECUTION WITNESS.
II.
THE TRIAL COURT ERRED IN NOT GIVING ANY
PROBATIVE VALUE TO THE DFENSE OF ALIBI BY
THE ACCUSED.
According to appellant, the prosecution witnesses
failed to positively identify him. He also argues that
the trial court, in rejecting the defense of alibi, simply
adopted the general principle of alibi as a defense,
being inherently weak, but failed to point out any
inconsistencies and falsities to his testimony, as well as
those of the other witnesses for the defense.
On the other hand, the Office of the Solicitor General
(OSG) in its Brief,11 argued the following:
I
 THE TRIAL COURT CORRECTLY GAVE FULL
CREDENCE TO THE PROSECUTION
EVIDENCE.
II
IN THE LIGHT OF THE POSITIVE AND
UNERRING IDENTIFICATION OF APPELLANT
BY THE PROSECUTION WITNESS, THE TRIAL
COURT CORRECTLY REJECTED HIS DEFENSE
OF DENIAL AND ALIBI.
The OSG insists that the prosecution witnesses
positively and categorically recognized and identified
appellant as one of the perpetrators; thus, the trial
court correctly appreciated the evidence presented by
the prosecution. It further posits that appellant's
defense of denial and alibi was correctly rejected by
the trial court, because those defenses cannot prevail
over the positive identification of appellant.
With both arguments from the parties under
consideration, this Court finds the appeal
unmeritorious.
In People v. De Jesus,12 this Court had the occasion to
meticulously expound on the nature of the crime of
Robbery with Homicide, thus:
Article 294, paragraph 1 of the Revised Penal Code
provides:
Art. 294. Robbery with violence against or
intimidation of persons – Penalties. - Any person
guilty of robbery with the use of violence against or
any person shall suffer:
The penalty of reclusion perpetua to death, when by
reason or on occasion of the robbery, the crime of
homicide shall have been committed, or when the
robbery shall have been accompanied by rape or
intentional mutilation or arson.
For the accused to be convicted of the said crime, the
prosecution is burdened to prove the confluence of the
following elements:
(1) the taking of personal property is committed
with violence or intimidation against persons;
(2) the property taken belongs to another;
 (3) the taking is animo lucrandi; and
(4) by reason of the robbery or on the occasion
thereof, homicide is committed.
In robbery with homicide, the original criminal design
of the malefactor is to commit robbery, with homicide
perpetrated on the occasion or by reason of the
robbery. The intent to commit robbery must precede
the taking of human life. The homicide may take place
before, during or after the robbery. It is only the result
obtained, without reference or distinction as to the
circumstances, causes or modes or persons intervening
in the commission of the crime that has to be taken
into consideration. There is no such felony of robbery
with homicide through reckless imprudence or simple
negligence. The constitutive elements of the crime,
namely, robbery and homicide, must be
consummated.
It is immaterial that the death would supervene by
mere accident; or that the victim of homicide is other
than the victim of robbery, or that two or more
persons are killed or that aside from the homicide,
rape, intentional mutilation, or usurpation of
authority, is committed by reason or on the occasion
of the crime. Likewise immaterial is the fact that the
victim of homicide is one of the robbers; the felony
would still be robbery with homicide. Once a
homicide is committed by or on the occasion of the
robbery, the felony committed is robbery with
homicide. All the felonies committed by reason of or
on the occasion of the robbery are integrated into one
and indivisible felony of robbery with homicide. The
word "homicide" is used in its generic sense.
Homicide, thus, includes murder, parricide, and
infanticide.
Intent to rob is an internal act but may be inferred
from proof of violent unlawful taking of personal
property. When the fact of asportation has been
established beyond reasonable doubt, conviction of
the accused is justified even if the property subject of
the robbery is not presented in court. After all, the
property stolen may have been abandoned or thrown
away and destroyed by the robber or recovered by the
owner. The prosecution is not burdened to prove the
actual value of the property stolen or amount stolen
from the victim. Whether the robber knew the actual
amount in the possession of the victim is of no moment
because the motive for robbery can exist regardless of
the exact amount or value involved.
When homicide is committed by reason or on the
occasion of robbery, all those who took part as
principals in the robbery would also be held liable as
principals of the single and indivisible felony of
robbery with homicide although they did not actually
take part in the killing, unless it clearly appears that
they endeavored to prevent the same.
If a robber tries to prevent the commission of
homicide after the commission of the robbery, he is
guilty only of robbery and not of robbery with
homicide. All those who conspire to commit robbery
with homicide are guilty as principals of such crime,
although not all profited and gained from the robbery.
One who joins a criminal conspiracy adopts the
criminal designs of his co-conspirators and can no
longer repudiate the conspiracy once it has
materialized.
Homicide is said to have been committed by reason or
on the occasion of robbery if, for instance, it was
committed to (a) facilitate the robbery or the escape of
the culprit; (b) to preserve the possession by the culprit
of the loot; (c) to prevent discovery of the commission
of the robbery; or, (d) to eliminate witnesses in the
commission of the crime. As long as there is a nexus
between the robbery and the homicide, the latter
crime may be committed in a place other than
the situs of the robbery.13
The trial court, in finding appellant guilty beyond
reasonable doubt of the crime of robbery with
homicide, gave credence to the testimonies of the
prosecution witnesses. As it explained:
The court finds the testimonies of Evelyn and Joan
Parcasio as truthworthy, honest and straightforward.
It is significant to note that the prosecution's
testimonies have not been assailed. No motive was
advanced by the defense why the witnesses will falsely
testify and implicate the herein accused in the
commission of such a heinous crime. Thus, it has been
ruled by the Supreme Court "that when there is no
evidence indicating that the principal witness for the
prosecution was moved by improper motive, the
presumption is that he was not so moved, and his
testimony is entitled to full faith and credit. Denial,
like alibi is inherently a weak defense and cannot
prevail over the positive and credible testimony of the
prosecution witness that the accused committed the
crime. (People vs. Belibet, 194 SCRA 588).
Moreover, circumstantial evidence have been duly
established in the case at bar which is in conformity
with the rules of court. That accused Nonoy Ebet in
the company [of] two (2) unidentified persons entered
the house of Gabriel Parcasio, once inside took [the]
personal properties of Joan, daughter of Gabriel, and
thereafter the accused took turns in stabbing Gabriel
Parcasio to death.14
Appellant's main contention is that the trial court was
wrong in giving credence to the testimonies of the
prosecution's witnesses. According to him, he was not
positively identified by the said witnesses. However,
this Court finds otherwise.
The following are the testimonies of the witnesses for
the prosecution which clearly show that the appellant
was categorically identified as one of the men who
took part in the perpetration of the crime:
Testimony of Evelyn Parcasio:
Q Now, in that evening of February 3, 1997, was
there any unusual incident that happened in your
house?
A At more or less 7:30, three (3) persons entered
our house. The two (2) of them I do not know, only
one (1) I know.
Q Who is that one (1) you know?
A Yes, sir.
Q Can you go down and pinpoint him?
A Witness taps the shoulder of a person who, when
asked his name, he answered that he is Nonoy Ebet.
Q How do you know him to be Nonoy Ebet?
A He is always in our house. He is always eating
with my husband in our house.
Q You said these three (3) entered your house?
A Yes, sir.
Q What happened after that?
A Upon entering the house, he poked a gun on me
and one of them pointed a knife to my daughter
Joan.
Q What about this Nonoy Ebet?
A Nonoy Ebet was standing in front of the door of
my house holding the knife. 15
Testimony of Joan Parcasio:
Q Now, on that evening at around 7:00 o'clock of
February 3, 1997, can you recall whether there was
an unusual incident that happened?
A Yes, sir.
Q Can you recall what was that unusual incident
that happened?
A We were robbed and my father was killed.
Q What is the name of your father?
A Gabriel Parcasio, Jr.
Q You said you were held up, how many persons
robbed you?
A Three (3) persons.
Q Were you able to identify them?
A Only one perpetrator I know.
Q You said you were able to identify one of the
perpetrators, if this one which you were able to
identify is inside this courtroom, please point at
him?
A Witness tapped the shoulder of a person with a
stripe polo shirt and who, when asked his name,
answered Nonoy Ebet.
Q This Nonoy Ebet is one of those who robbed you
and likewise killed your father?
A Yes, sir.
Q What was the weapon used in killing your
father?
A Hunting knife. 16
According to appellant, the testimony of Joan
Parcasio during the trial was contrary to her earlier
statement with the police authorities of
Kidapawan City, Cotabato. The police
blotter17 contains the following:
Entry/Date/Time
15-02/03-97/2000H
-JOAN PARCASIO, 18 years old, student resident
of Barangay Upper Manongol, Kidapawan,
Cotabato reported this station and requested to put
on record, that they were allegedly and forcibly
entered by three unidentified men while the one
is wearing mask and declared hold-up. His father
GABRIEL PARCASIO, 44 years old, a farmer
attempted to resist, but the assailant shot him once,
by an undetermined type of hand-gun and stabbed
him for several times, hitting the different parts of
his body. The neighbor of the victim, wife and
child, brought him to Kidapawan Medical
Specialist, but he was expired upon arrival at the
said hospital. Money carting them away by the
perpetrators amounting to ₱30.00 Philippine
currency and one wrist watch amounting to
₱1,000.00. Incident happened at about 7:00 p.m.,
February 3, 1997. Case referred to investigation
section for proper disposition.
Appellant points out that the above contents of the
police blotter are corroborated by the testimony of
his own witness, Virgilio Balili, who narrated that
right after the commission of the crime, he was
approached by Evelyn, Jean and Joan Parcasio.
When Balili asked if they knew the identities of
the perpetrators, Evelyn, Jean and Joan answered
in the negative, thus:
Q When Evelyn, Jean and Joan Parcasio
approached you, what did you do?
A I asked them if they were able to identify the
perpetrators.
Q And what did they tell you?
A They answered me that they did not know the
assailant.18
xxxx
Q You said on the way you had a conversation
with Evelyn, Jean and Joan Parcasio, please tell us
what the content of your conversation? What was
the subject matter of your conversation?
A I asked them to tell the truth so that we could
help them.
Q So what was the answer?
A They answered, "What could we do because we
were not able to identify those people?"19
The above argument of appellant deserves scant
consideration. The incomplete entry in the police
blotter must not overcome the positive and categorical
identification of appellant as one of the perpetrators.
As correctly pointed out by the OSG:
The entry in the police blotter was incomplete. In fact,
as stated therein, the case was referred to the
investigation section for proper disposition. It must be
noted that Item No. 2 was entered at 2000 hours or 8
in the evening or about thirty (30) minutes after the
incident. The culprits, including the appellant, were
still on the loose. This explains the reason why Joan,
still distraught over the sudden and unexpected death
of her father, hesitated to divulge the identity of
appellant as one of the perpetrators of the gory killing
of her father.20
In People v. Sabadao,21 the appellants therein faulted
two (2) prosecution witnesses for, either giving
incomplete statements or not giving any statement to
the police authorities. However, this Court was not
persuaded and ruled that:
x x x It is a matter of judicial experience that an
affidavit, being taken ex parte, is almost always
incomplete and often inaccurate. To be sure, a sworn
statement taken ex parte is generally considered to be
inferior to a testimony given in open court as the latter
is subject to the test of cross examination.22
Notwithstanding the entry in the police blotter,
Evelyn and Joan Parcasio, on the day after the crime
was committed, executed their respective sworn
statements, positively identifying the appellant as one
of the culprits. Thus:
Evelyn Parcasio's Sworn Statement:
02. Q – Why are you here in the Office of the
Investigation Section?
A – To file a formal complaint against the persons
who robbed us and killed my husband.
03. Q – What is the name of your husband who
was killed by the robbers?
A – Gabriel Parcasio Jr., sir.
04. Q – When and where did this incident happen?
A. - It happened on February 3, 1997 at about 7:00
o'clock in the evening inside our residence at Brgy.
Upper Manongol, Kidapawan, Cotabato.
05. Q – You mentioned that you were held-up?
How many are they?
A – They were three (3) of them.
06. Q – Can you recognize or identify them?
A – I could only identify one of them in the person
of alias NONOY EBET.
xxxx
16. Q – You mentioned that you could only
identify one of the perpetrators as one alias Nonoy
Ebet. How come that you were able to identify
him?
A - Because he is always at our house conversing
with my husband and sometimes eat with us.23
Joan Parcasio's sworn statement:
02. Q – Why are you here in the Office of the
Investigation Section?
A – To give my voluntary statement in connection
to the complaint of my mother Evelyn Parcasio to
persons of alias NONOY EBET and his two other
companions which I could not identify.
03. Q – What is the complaint of your mother
against these persons?
A – For robbing us and killing my father Gabriel
Parcasio, Jr.
xxxx
19. Q – You mentioned in your statement that you
were able to identify one of the perpetrators as one
NONOY EBET. How were you able to identify
him?
A – Because while one of his companions was
holding me at the point of a knife, I saw Alias
Nonoy Ebet standing in front of our door.
20. Q – How far was he from you?
 A – More or less one meter.
21. Q – Was there light at the house during that
time?
A – Yes, sir.
22. Q – Do you know the person of Alias Nonoy
Ebet?
A – Yes, sir. He used to go to the house and talk
with my father and sometimes we served coffee to
him as merienda.24
Clearly, it is only the incomplete police blotter that
appears to be inconsistent. However, the said
inconsistency has been cured by the sworn statements
and the testimonies given in open court. With that in
perspective, this Court, therefore, has no reason to
dispute the trial court's appreciation of the credibility
of the prosecution witnesses' testimonies. Deeply
entrenched in our jurisprudence is the rule that the
assessment of the credibility of witnesses is a domain
best left to the trial court judge, because of his unique
opportunity to observe their deportment and
demeanor on the witness stand; a vantage point denied
appellate courts - and when his findings have been
affirmed by the Court of Appeals, these are generally
binding and conclusive upon this Court.25
Appellant further reasons out that, if it were indeed
him who was seen standing near or in front of the
Parcasio family's door, that fact alone cannot be the
basis to consider him as one of the perpetrators of the
crime. However, the said argument is
inconsequential.1avvphi1
When a homicide takes place by reason of or on the
occasion of the robbery, all those who took part shall
be guilty of the special complex crime of robbery with
homicide whether they actually participated in the
killing, unless there is proof that there was an
endeavor to prevent the killing.26 The records are
bereft of any evidence to prove, or even remotely
suggest, that appellant attempted to prevent the
killing. Therefore, the basic principle in conspiracy
that the "act of one is the act of all," applies in this case.
To be a conspirator, one need not participate in every
detail of the execution; he need not even take part in
every act or need not even know the exact part to be
performed by the others in the execution of the
conspiracy. Each conspirator may be assigned separate
and different tasks which may appear unrelated to one
another but, in fact, constitute a whole collective
effort to achieve their common criminal
objective.27 Once conspiracy is shown, the act of one
is the act of all the conspirators. The precise extent or
modality of participation of each of them becomes
secondary,28 since all the conspirators are principals.
To exempt himself from criminal liability, a
conspirator must have performed an overt act to
dissociate or detach himself from the conspiracy to
commit the felony and prevent the commission
thereof.29
As to the failure of the trial court in finding merit to
the defense of denial and alibi presented by appellant,
this Court is in complete agreement.
Appellant claims that he was butchering a pig at the
house of Agri Saud located at Barangay Perez,
Kidapawan City from 5:00 p.m. until 9:00 p.m. of
February 3, 1997. The said alibi has been supported by
the testimonies of two witnesses. However, appellant
failed to prove that it was impossible for him to be
physically present at the place where the crime had
taken place and when the crime was being committed.
For alibi to prosper, it must strictly meet the
requirements of time and place. It is not enough to
prove that the accused was somewhere else when the
crime was committed, but it must also be
demonstrated that it was physically impossible for him
to have been at the crime scene at the time the crime
was committed.30
This Court has always upheld that alibi and denial are
inherently weak defenses and must be brushed aside
when the prosecution has sufficiently
and positively ascertained the identity of the accused.
And it is only axiomatic that positive testimony
prevails over negative testimony.31
WHEREFORE, the appeal is hereby DENIED and the
Decision dated July 31, 2007 of the Court of Appeals,
in CA-G.R. CR-H.C. No. 00257, which sustained with
modification, the judgment of the Regional Trial Court
finding appellant Nonoy Ebet guilty beyond
reasonable doubt of the crime of Robbery with
Homicide, is hereby AFFIRMED.
SO ORDERED.
DIOSDADO M. PERALTA
Associate Justice
WE CONCUR:
ANTONIO T. CARPIO
Associate Justice
Chairperson
ANTONIO EDUARDO
ROBERTO A. ABAD
B. NACHURA
Associate Justice
Associate Justice

JOSE CATRAL MENDOZA

Associate Justice
ATTESTATION
I attest that the conclusions in the above Decision had
been reached in consultation before the case was
assigned to the writer of the opinion of the Court’s
Division.
ANTONIO T. CARPIO
Associate Justice
Second Division, Chairperson
CERTIFICATION
Pursuant to Section 13, Article VIII of the
Constitution and the Division Chairperson’s
Attestation, I certify that the conclusions in the above
Decision had been reached in consultation before the
case was assigned to the writer of the opinion of the
Court’s Division.
RENATO C. CORONA
Chief Justice
19. People vs. Raul Beriber, GR No. 195243, Aug. 29,
2012

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 195243 August 29, 2012
PEOPLE OF THE PHILIPPINES, Appellee,
vs.
RAUL BERIBER y FUENTES @ JERRY FUENTES y
IGNACIO @ GERRY BERIBER @ BONG @ RAUL
FUENTES, Appellant.
DECISION
PERALTA, J.:
Before us is an appeal from the Decision1 dated July 9,
2010 of the Court of Appeals in CA-G.R. CR-H.C. No.
01623, which affirmed with modification the
Judgment2 dated July 7, 2005 of the Regional Trial
Court (RTC), Branch 32, San Pablo City, finding
appellant Raul Beriber y Fuentes @Jerry Fuentes y
Ignacio@ Gerry Beriber@ Bong@ Raul Fuentes, guilty
of the crime of Robbery with Homicide.
On March 22, 2001, a Second Amended
Information3 was filed before the RTC of San Pablo
City charging appellant of Robbery with Homicide.4
The accusatory portion of the Information reads:
That on or about October 3, 2000, in the City of San
Pablo, Republic of the Philippines and within the
jurisdiction of this Honorable Court, the accused
above-named, with intent to gain, did then and there
willfully, unlawfully, and feloniously enter the
premises of SPOUSES HENRY and MA. LOURDES
VERGARA, located at Brgy. San Cristobal, this city,
and once inside and finding an opportune time, did
then and there take, steal and carry away cash money
amounting to ₱ 2,000.00, Philippine Currency,
belonging to said Spouses Henry and Ma. Lourdes
Vergara, by means of violence against or intimidation
of persons and by reason of or on the occasion of said
robbery, said accused attacked and stabbed to death his
immediate employer Ma. Lourdes Vergara with a
bladed weapon with which the accused was then
conveniently provided, thereby inflicting wounds
upon the person of said Ma. Lourdes Vergara which
caused her immediate death.
CONTRARY TO LAW.5
When arraigned on April 17, 2001, appellant, with the
assistance of a counsel de oficio, entered a plea of not
guilty.6
Trial on the merits thereafter ensued.
The evidence for the prosecution is aptly summarized
by the Solicitor General in the Appellee’s Brief as
follows:
The prosecution presented six (6) witnesses, as well as
documentary evidence to prove its case.
The first witness for the prosecution was Dr. Lucy
Andal Celino (Celino), the physician who examined
the remains of the victim, Lourdes Vergara. Celino is
the Health Officer of San Pablo City. She testified that
she conducted a necropsy of the victim on October 3,
2000 at 4:15 p.m., and that she prepared a Necropsy
Report which states that the victim died of shock and
hemorrhage secondary to multiple stab wounds all
over her body, some of which damaged her heart,
lungs, and liver. Celino also stated that the location of
stab wounds, abrasions and lacerations on the victim’s
body indicated that the latter struggled against her
killer. The physician added that the perpetrator used
two kinds of instruments in inflicting wounds on the
victim: a sharp-pointed instrument and a pointed
rounded instrument.
On cross-examination, Celino confirmed that the
wounds sustained by the victim were inflicted using
two different pointed instruments.
The prosecution also presented police officer
Armando Demejes (Demejes), who testified that while
he was on duty on October 3, 2000, he went to the
house of Henry Vergara (Henry) in Barangay San
Cristobal, San Pablo City to investigate a stabbing
incident which occurred thereat.
When Demejes arrived at the scene of the crime,
Vergara informed him that his wife, Lourdes, was
stabbed to death. Demejes entered the house and saw
a cadaver lying on a bamboo bed. He also looked
around the house and saw that the place was in
disarray. In the sala, about five to six meters away from
the corpse, was an open drawer containing coins, and
on the floor near the said drawer were more coins.
Another drawer was pulled out from its original
location and left on a couch. Demejes likewise found a
blue tote bag on top of the center of the table and a
passbook on top of the bed. He also saw that the door
leading to the stairs was open. Demejes prepared a
sketch of the crime scene to document what he saw
during his investigation.
Thereafter, the prosecution presented Neville Bomiel
(Bomiel), a resident of Barangay San Cristobal, San
Pablo City. Bomiel testified that he had known the
appellant for less than a month prior to October 3,
2000. He knew that the appellant was working for the
Vergaras and resided at the latter’s rice mill. Bomiel
recalled that while he was standing in front of his
house in the morning of October 3, 2000, at around
10:00 a.m., he saw the appellant leave the house of the
Vergaras and walk towards the direction of the school.
When appellant passed by Bomiel’s house, he asked
appellant where the latter was going. Appellant
replied that he was on his way to Batangas for medical
treatment. Bomiel noticed that appellant was wearing
a yellow collared t-shirt, blue denims, and shoes.
Later, he saw appellant return to the house of the
Vergaras and enter the place. Afterwards, appellant
left the house and passed by Bomiel’s residence a
second time. Bomiel again greeted the appellant and
asked him why he (appellant) had not yet left for
Batangas. Appellant replied that he was still waiting
for Henry. Appellant again proceeded to the direction
of the school. Subsequently, Bomiel saw the appellant
return to the house of the Vergaras a third time. That
was the last time Bomiel saw him. Bomiel observed
that on that day, appellant looked restless. ("balisa at
hindi mapakali.")
The fourth witness for the prosecution, Rolando
Aquino (Aquino), likewise a resident of Barangay San
Cristobal, San Pablo City, testified that he had known
appellant for less than a month on October 3, 2000. He
knew the appellant was hired by the Vergaras as a
helper in their rice mill.
In the morning of October 3, 2000, Aquino was able to
talk to the appellant at the house of a certain Lola
Rosy, the victim’s mother. Appellant told Aquino that
he was going to Batangas that day for medical
treatment. Thereafter, appellant, then wearing short
pants and a t-shirt with cut-off sleeves, left the house
of Lola Rosy to go [to] the rice mill. At around 8:30
a.m., Aquino again saw appellant at Lola Rosy’s house,
but appellant was already wearing a mint green-
colored shirt and khaki pants. Aquino asked appellant
why he had not yet left, but the latter did not answer
and appeared restless. Later that morning, at around
11:30 a.m., Aquino learned that Lourdes had been
killed. He rushed to the house of the Vergaras and saw
the victim lying on a bamboo bed, drenched in blood.
Aquino then noticed that the appellant’s personal
belongings which were kept by the appellant
underneath the bamboo bed were no longer there. He
further testified that he did not see appellant return to
San Cristobal after October 3, 2000.
Henry Vergara also testified before the trial court. He
said that he and the victim hired appellant as a helper
in their rice mill in September 2000. Appellant slept in
the house of Henry’s mother-in-law, Rosy, but kept
his personal belongings in their house (the Vergaras
house), specifically under the bamboo bed where
Lourdes’ corpse was discovered on October 3, 2000 at
past 11:00 a.m.
At around 5:30 in the morning of October 3, 2000,
appellant asked Henry for permission to go to
Batangas. Henry asked appellant to fetch a certain
Junjun to be his replacement as Henry’s helper in their
store in Dolores, Quezon that day. Henry left their
house in San Cristobal at 6:00 a.m. to tend their store
in Quezon and stayed in the store until 11:00 a.m.
before heading back home.
When he arrived at their house in San Cristobal, he
noticed that the door was slightly open. He called for
Lourdes, but nobody answered. He immediately
entered their house and saw that the door of their rice
mill was closed. This caused him to suspect that
something was wrong. He then noticed that coins
were scattered on the floor. He proceeded to the
kitchen and saw Lourdes lying on the bamboo bed,
lifeless and bloodied in the chest and stomach areas.
Henry thereafter ran to the house of his brother-in-
law, Wanito Avanzado (Avanzado), who also resided
in San Cristobal. Henry told Avanzado that Lourdes
was already dead. Avanzado then ran to the house of
the Vergaras.
Henry recalled that before he left for their store in
Quezon that day, he left appellant, his wife and their
children in their house. He also remembered that cash
amounting to Two Thousand Pesos (₱ 2,000.00) was
left inside the drawer in their rice mill. However,
when he looked for the money after he discovered that
his wife was killed, he could no longer find it.
Henry also testified that he did not see the appellant
in their house when he went home from Quezon and
that appellant’s personal effects were no longer under
the bamboo bed where appellant used to keep them.
He did not see appellant anymore after he left their
house on October 3, 2000.
Lastly, the prosecution presented as witness
Avanzado, the brother of the victim. Avanzado
testified that at around 11:00 a.m. on October 3, 2000,
he saw his brother-in-law, Henry, running towards
his (Avanzado’s) house and shouting "Si Aloy", the
victim’s nickname. He ran to the house of the Vergaras
and saw his sister’s bloodied body on the bamboo bed.
Avanzado tried to lift her body, but her neck was
already stiff. After he was sure that Lourdes was
indeed dead, he called up the police and requested
them to investigate the incident. When the police
arrived, they took pictures of the crime scene and
conducted an investigation.
Avanzado further stated that he knew that the
appellant was a helper of the Vergaras. He said that he
was told by several residents of San Cristobal that they
saw appellant leaving the scene of the crime with a
bag.
He also narrated that as Barangay Chairman of San
Cristobal, he coordinated with the police for the
apprehension of the appellant. Avanzado went with
some police officers to Talisay, Batangas to search for
appellant in the house of his uncle, but appellant was
not there. Later, Avanzado received information that
appellant was apprehended in Capiz, but was released
by police authorities because the latter were worried
that they would be charged with illegal detention.
Avanzado then sought the assistance of the staff of
Kabalikat, a program aired by the ABS-CBN
Broadcasting Company. Appellant was subsequently
apprehended and brought back to San Pablo City to
face the charge against him.7
Except for Dr. Celino, the defense waived its right to
cross-examine the prosecution witnesses. Appellant's
counsel further waived the presentation of
evidence.8 Both parties failed to file their respective
memoranda despite being ordered to do so; thus, the
RTC resolved the case on the basis of the evidence
presented by the prosecution.
On October 22, 2001, the RTC rendered its
Decision,9 the dispositive portion of which reads:
WHEREFORE, IN VIEW OF THE FOREGOING
CONSIDERATIONS, the Court finds accused RAUL
BERIBER y FUENTES @ JERRY FUENTES y
IGNACIO @ GERRY BERIBER @ "Bong", @ "Raul
Fuentes" guilty beyond reasonable doubt of the crime
of Robbery with Homicide defined and penalized
under Article 294 of the Revised Penal Code and he is
hereby sentenced the supreme and capital penalty of
DEATH, with costs.
He is further sentenced to pay the heirs of the
deceased:
a) the sum of ₱ 50,000.00 as death indemnity;
b) the sum of ₱ 2,000.00 representing the stolen
cash;
c) the sum of ₱ 200,000.00 as moral and exemplary
damages; and
d) the sum of ₱ 100,000.00 representing burial and
other incidental expenses of the victim.
 SO ORDERED.10
The case was then elevated to us on automatic review.
However, in a Decision11 dated June 8, 2004, we had
set aside the Judgment of the RTC and remanded the
case to the same court for further proceedings. The
fallo of our Decision reads:
WHEREFORE, the Decision of the Regional Trial
Court of San Pablo City, Branch 32, in Criminal Case
No. 12621-SP (00), is hereby VACATED and SET
ASIDE, and the case REMANDED to said court for its
proper disposition, including the conduct of further
appropriate proceedings and the reception of
evidence. For this purpose, the proper law
enforcement officers are directed to TRANSFER
appellant RAUL BERIBER y FUENTES from the New
Bilibid Prison where he is presently committed to the
BJMP Jail in San Pablo City, with adequate security
escort, where he shall be DETAINED for the duration
of the proceedings in the trial court.
The Regional Trial Court of San Pablo City, Branch 32
is directed to dispose of the case with dispatch.
 SO ORDERED.12
In compliance, the RTC scheduled the case for
hearing. On July 27, 2004, appellant's same counsel
submitted a Manifestation that the defense is again
waiving its right not to adduce evidence and with
appellant's conformity. On August 10, 2004,
appellant's counsel reiterated her manifestation. The
RTC then ordered to place appellant on the stand,
wherein appellant stood firm not to present any
evidence for his defense.13
The RTC then forwarded to us the transcripts and the
records of the proceedings held on August 10, 2004. In
a Resolution14 dated January 18,2005, we ordered the
RTC to render its decision on the case based on the
evidence that had been presented.
On July 7, 2005, the RTC rendered a Judgment
convicting appellant of the crime of Robbery with
Homicide based on circumstantial evidence, the
dispositive portion which reads:
WHEREFORE, IN VIEW OF THE FOREGOING
CONSIDERATIONS, the Court finds accused RAUL
BERIBER y FUENTES @ JERRY FUENTES y
IGNACIO @ GERRY BERIBER @ "Bong," @ "Raul
Fuentes" guilty beyond reasonable doubt of the crime
of Robbery with Homicide defined and penalized
under Article 294 of the Revised Penal Code, and
considering the absence of any aggravating
circumstance which merits the imposition of the
maximum penalty of death, and conformably with
Article 63 (2) of the Revised Penal Code which
provides that when the law prescribes two indivisible
penalties and there are neither mitigating nor
aggravating circumstances in the commission of the
deed, the lesser penalty shall be applied, accused
RAUL BERIBER y FUENTES @ JERRY FUENTES y
IGNACIO @ GERRY BERIBER @ "Bong," @ "Raul
Fuentes" is sentenced to suffer the penalty
of RECLUSION PERPETUA with costs.
He is further sentenced to pay the heirs of the
deceased:
a) the sum of ₱ 50,000.00 as death indemnity;
 b) the sum of ₱ 2,000.00 representing the stolen
cash;
c) the sum of ₱ 200,000.00 as moral and exemplary
damages; and
d) the sum of ₱ 100,000.00 representing burial and
other incidental expenses of the victim.
SO ORDERED.15
In so ruling, the RTC enumerated the pieces of
circumstantial evidence which established appellant's
culpability for the crime charged, to wit:
x x x 1. accused was at the locus criminis at around the
time of the stabbing incident; 2. witnesses testified
seeing him at the scene of the crime going in and going
out of the house of the victim at the time of the
perpetration of the crime; 3. accused, in his own
admission mentioned that he was going to Batangas for
medical treatment, however, when the policemen,
together with the Barangay Chairman went to Talisay,
Batangas where he lives, he was nowhere to be found;
4. immediately after the incident, the witnesses and
the offended party noticed that all his clothes kept
underneath the bamboo bed where the victim was
found sprouted with blood were all gone because he
took everything with him although his intention was
merely for medical treatment in Batangas; 5. he
mentioned that he was then still waiting for Kuya
Henry, husband of Lourdes, when he had already a
talk with Henry Vergara that he will go to Batangas
for medical treatment that did not materialize; 6. after
the killing incident, accused simply disappeared and
did not return anymore; 7. when he was confronted
by Henry Vergara concerning the killing, he could not
talk to extricate himself from the accusation; and 8.
that he has been using several aliases to hide his true
identity.16
Appellant filed his appeal with the Court of Appeals
(CA). The Solicitor General filed his Appellee's Brief
praying that except for the modification of the
damages awarded, the RTC decision be affirmed.
On July 9, 2010, the CA issued the assailed Decision,
which affirmed with modification the RTC decision,
the dispositive portion of which reads:
WHEREFORE, the appeal is DENIED for lack of
merit. The Judgment dated July 7, 2005 of the Regional
Trial Court, Branch 32 of San Pablo City in Criminal
Case No. 12621-SP (00) finding Raul Beriber y
Fuentes, @ Jerry Fuentes y Ignacio, @ Gerry Beriber,
@ "Bong,"@ "Raul Fuentes" GUILTY beyond
reasonable doubt of the crime of Robbery with
Homicide defined and penalized under Article 294 of
the Revised Penal Code, for which he is sentenced to
suffer the penalty of RECLUSION PERPETUA is
hereby AFFIRMED with the MODIFICATION in that
the damages to be awarded the heirs of Ma. Lourdes
Vergara shall be: a) ₱ 50,000.00 as civil indemnity; b)
₱ 2,000.00 as actual damages; c) ₱ 25,000.00 as
temperate damages; and d) ₱ 50,000.00 as moral
damages.17
Appellant filed his Appeal with us. In a
Resolution18 dated March 9, 2011, we required the
parties to file their respective Supplemental Briefs, if
they so desire. Both parties filed their Manifestations
stating that they were dispensing with the filing of
Supplemental Briefs as their Briefs earlier filed were
sufficient.19
Appellant's lone assignment of error alleges that:
THE COURT A QUO ERRED IN FINDING THE
ACCUSED-APPELLANT GUILTY OF THE CRIME
CHARGED DESPITE THE PROSECUTION’S
FAILURE TO PROVE HIS GUILT BEYOND
REASONABLE DOUBT.20
Appellant contends that to sustain a conviction for the
crime of robbery with homicide, it is necessary that
robbery itself must be proved as conclusively as any
other essential element of the crime which was not
established in this case. He argues that the eight (8)
circumstantial evidence found by the RTC can be
summarized into two circumstances, i.e., (1) the
appellant was at the scene of the crime at
approximately the same time that the crime was
committed; and (2) that he fled the locus criminis
thereafter. He claims that the first circumstance
cannot be taken against him, since it is natural for him
to be at the victim's house as he resides therein. As to
the second circumstance, appellant claims that
witnesses even testified that he told them that he was
going to Batangas for a medical check-up, thus, the
finding that he fled the crime scene is a conclusion
without sufficient basis; and that assuming he indeed
escaped and flight be an indication of guilt, such
circumstance is not enough to prove his guilt beyond
reasonable doubt.
We find no merit in the appeal.
The crime for which appellant was charged and
convicted was robbery with homicide. It is a special
complex crime against property.21
Robbery with homicide exists when a homicide is
committed either by reason, or on occasion, of the
robbery. In charging Robbery with Homicide, the
onus probandi is to establish: (a) the taking of personal
property with the use of violence or intimidation
against a person; (b) the property belongs to another;
(c) the taking is characterized with animus lucrandi or
with intent to gain; and (d) on the occasion or by
reason of the robbery, the crime of homicide, which is
used in the generic sense, was committed.22
Admittedly, there was no direct evidence to establish
appellant's commission of the crime charged.
However, direct evidence is not the only matrix
wherefrom a trial court may draw its conclusion and
finding of guilt.23 At times, resort to circumstantial
evidence is imperative since to insist on direct
testimony would, in many cases, result in setting
felons free and deny proper protection to the
community.24 Thus, Section 4, Rule 133 of the Revised
Rules of Court on circumstantial evidence requires the
concurrence of the following: (1) there must be more
than one circumstance; (2) the facts from which the
inferences are derived are proven; and (3) the
combination of all circumstances is such as to produce
a conviction beyond reasonable doubt of the guilt of
the accused. We have ruled that circumstantial
evidence suffices to convict an accused only if the
circumstances proven constitute an unbroken chain
which leads to one fair and reasonable conclusion
pointing to the accused, to the exclusion of all others,
as the guilty person.25
We agree with the RTC as affirmed by the CA that the
circumstantial evidence proven by the prosecution
sufficiently establishes that appellant committed the
offense charged.
The prosecution had established that around 6:00 a.m.
of October 3, 2000, Henry went to his store in Dolores,
Quezon, leaving his wife (the victim) and appellant in
their house at Barangay San Cristobal, San Pablo City.
He remembered leaving a cash amounting to ₱
2,000.00 inside the drawer in their rice mill.26 Around
10:00 a.m., Bomiel, the victim's neighbor who lived
around 15 to 20 meters from the victim's house, saw
appellant leave the house. When appellant passed by
his house, Bomiel asked the former where he was
going to, which appellant answered that he was going
to Batangas for a medical treatment. Later, Bomiel saw
appellant return to the victim's house and left after a
while. When appellant passed by his house again,
Bomiel asked appellant why he had not yet left for
Batangas, to which appellant answered that he was
waiting for Kuya Henry and went ahead. After a
while, Bomiel saw appellant again going back to the
victim's house.27 Around 11:00 a.m., Henry, who came
back from his store in Dolores, entered their house and
found his lifeless wife with several stab wounds lying
on a bamboo bed. Henry saw drawers and coins
scattered on the floor, and the drawer, where he put
the ₱ 2,000.00 cash which was nowhere to be found,
was pulled out.28
Appellant, who was supposed to have gone to Batangas
for a medical treatment on the same day, never came
back. In fact, appellant's belongings, which were kept
under the bamboo bed where the victim's body was
found lying, were no longer there when the incident
was discovered.29 Moreover, when the victim's
brother, Avanzado, went to the house of appellant's
uncle in Batangas, appellant was nowhere to be found.
Appellant was later apprehended in October 2000 in
Capiz, so Avanzado went to Capiz to verify this but
appellant was already released as the police feared that
they might be charged with illegal detention. Notably,
appellant knew that he was being arrested for the
crime of robbery with homicide, yet he did not present
himself to the authorities or to the victim's family to
establish that he had nothing to do with the crime. In
fact, he was not seen by the victim's family since the
incident and it was only on March 25, 2001, after he
was again apprehended in Capiz and brought to San
Pablo City that Henry saw him at the police
station.30 These circumstances denote flight. The flight
of an accused, in the absence of a credible explanation,
would be a circumstance from which an inference of
guilt might be established, for a truly innocent person
would normally grasp the first available opportunity
to defend himself and assert his innocence.31
Appellant offered no explanation on why he never
returned to his employer after his alleged medical
treatment in Batangas and why he was in Capiz when
arrested. In fact, worth quoting was the narration of
the RTC in its decision on what transpired during the
hearing of August 10, 2004, thus:
x x x The Court found the accused to be firm in his
stand not to present any evidence as both manifested
by his counsel and by himself. The Court therefore
ordered the accused Raul Beriber y Fuentes to be
placed on the witness stand and questions were
propounded on him by the Court. x x x he reiterated
his stand on waiver to present evidence as his defense;
when asked by the Court why, he answered "none"; he
does not know of any reason why he should defend
himself despite the fact that the charge against him is
very serious and punishable by death; he could not tell
of any reason why he would not like to bring out his
defense in this case; he is aware that by not presenting
and waiving his right to present evidence for his
defense, he knew that he could be sentenced to death
as the Court did.32
Although appellant’s silence and refusal to testify, let
alone refusal to present evidence, cannot be construed
as evidence of guilt, we have consistently held that the
fact that an accused never testified in his defense even
in the face of accusations against him goes against the
principle that "the first impulse of an innocent man
when accused of wrongdoing is to express his
innocence at the first opportune time."33
Appellant's contention that there is no evidence of
robbery is devoid of merit.1âwphi1 The element of
taking and the existence of the money stolen by
appellant were adequately established by the
prosecution. Henry positively testified that he left ₱
2,000.00 in the drawer in the ricemill in the morning
of October 3, 2000 which was no longer found upon
discovery of his wife's lifeless body.34 Moreover,
Investigator Demejes testified that when he came to
the crime scene, he saw the place in disarray, i.e.,
drawers and coins were scattered on the floor, another
drawer was pulled out from its original location and
left on a couch; and that a blue tote bag was also seen
on top of a table and a passbook on top of the
bed.35 Intent to rob is an internal act, but may be
inferred from proof of violent unlawful taking of
personal property. The prosecution was able to
establish that the motive for killing the victim was
robbery.
Appellant's argument that it was natural for him to be
at the house of the victim at around the time of the
incident as he lives there does not persuade. True, the
mere presence of appellant at the scene is inadequate
to support the conclusion that he committed the
crime.36 However, his presence there becomes an
indicium of his commission of the offense when
coupled with his unexplained act of fleeing from the
situs instead of reporting the incident to the police
authorities, as well as with his act of hiding until he
was arrested.37 Taken together, the foregoing
circumstances are highly indicative of guilt.38
WHEREFORE, the appeal is hereby DENIED. The
Decision dated July 9, 2010 of the Court of Appeals in
CA-G.R. CR-H.C. No. 01623, which affirmed with
modification the Judgment of the Regional Trial
Court, finding appellant Raul Beriber y Fuentes@
Jerry Fuentes y Ignacio@ Gerry Beriber @ Bong @
Raul Fuentes, guilty beyond reasonable doubt of the
crime of Robbery with Homicide, is
hereby AFFIRMED.
SO ORDERED.
DIOSDADO M. PERALTA*
Associate Justice
WE COCUR:
ROBERTO A. ABAD
Associate Justice
MARTIN S. JOSE PORTUGAL
VILLARAMA, JR.** PEREZ***
Associate Justice Associate Justice

JOSE CATRAL MENDOZA

Associate Justice
ATTESTATION
I attest that the conclusions in the above Decision had
been reached in consultation before the case was
assigned to the writer of the opinion of the Court's
Division.
DIOSDADO M. PERALTA
Associate Justice
Acting Chairperson, Third Division
CERTIFICATION
Pursuant to Section 13, Article VIII of the
Constitution and the Division Acting Chairperson's
Attestation, I certify that the conclusions in the above
Decision had been reached in consultation before the
case was assigned to the writer of the opinion of the
Court's Division.
MARIA LOURDES P. A. SERENO
Chief Justice
20. Lily Sy vs. Hon. Sec. of Justice Ma. Mercedita
Gutierrez, et. al. GR No. 171579, Nov. 14, 2012

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 171579 November 14, 2012
LILY SY, Petitioner,
vs.
HON. SECRETARY OF JUSTICE MA. MERCEDITAS
N. GUTIERREZ, BENITO FERNANDEZ GO,
BERTHOLD LIM, JENNIFER SY, GLENN BEN TIAK
SY and MERRY SY, Respondents.
DECISION
PERALTA, J.:
In a Complaint-Affidavit1 filed on August 7, 2000,
petitioner Lily Sy (petitioner) claimed that in the
morning of December 16, 1999, respondents Benito
Fernandez Go (Benito) and Glenn Ben Tiak Sy
(Glenn), together with "Elmo," a security guard of
Hawk Security Agency, went to petitioner's residence
at the 1oth Floor, Fortune Wealth, 612 Elcano St.,
Binondo, Manila and forcibly opened the door,
destroyed and dismantled the door lock then replaced
it with a new one, without petitioner's consent.2 She,
likewise, declared that as a diversionary ruse,
respondent Jennifer Sy (Jennifer) was at the lobby of
the same building who informed petitioner’s helper
Geralyn Juanites (Geralyn) that the elevator was not
working.3 Glenn and Benito’s act of replacing the door
lock appeared to be authorized by a resolution of
Fortune Wealth Mansion Corporation’s Board of
Directors, namely, respondents Glenn, Jennifer,
William Sy (William), Merlyn Sy (Merlyn), and Merry
Sy (Merry).4
In the evening of the same date, petitioner supposedly
saw Benito, Glenn, Jennifer, Merry and respondent
Berthold Lim (Berthold) took from her residence
numerous boxes containing her personal belongings
without her consent and, with intent to gain, load
them inside a family-owned van/truck named
"Wheels in Motion."5 The same incident supposedly
happened in January 2000 and the "stolen" boxes
allegedly reached 34,6 the contents of which were
valued at P10,244,196.00.7
Respondents Benito and Berthold denied the
accusations against them. They explained that
petitioner made the baseless charges simply because
she hated their wives Merry and Jennifer due to
irreconcilable personal differences on how to go about
the estates of their deceased parents then pending
before the Regional Trial Court (RTC) of Manila,
Branch 51.8 They also manifested their doubts on
petitioner’s capability to acquire the personal
belongings allegedly stolen by them.9
Merry, Glenn, and Jennifer, on the other hand,
claimed that petitioner’s accusations were brought
about by the worsening state of their personal
relationship because of misunderstanding on how to
divide the estate of their deceased father.10 They also
pointed out that the whole condominium building
where the alleged residence of petitioner is located, is
owned and registered in the name of the
corporation.11 They explained that the claimed
residence was actually the former residence of their
family (including petitioner).12 After their parents’
death, the corporation allegedly tolerated petitioner to
continuously occupy said unit while they, in turn,
stayed in the other vacant units leaving some of their
properties and those of the corporation in their former
residence.13 They further stated that petitioner
transferred to the ground floor because the 10th floor’s
electric service was disconnected.14They explained
that they changed the unit’s door lock to protect their
personal belongings and those of the corporation as
petitioner had initially changed the original
lock.15 They supported their authority to do so with a
board resolution duly issued by the directors. They
questioned petitioner’s failure to report the alleged
incident to the police, considering that they
supposedly witnessed the unlawful taking.16 They thus
contended that petitioner’s accusations are based on
illusions and wild imaginations, aggravated by her ill
motive, greed for money and indiscriminate
prosecution.17
In the Resolution18 dated September 28, 2001,
Assistant City Prosecutor Jovencio T. Tating (ACP
Tating) recommended that respondents Benito,
Berthold, Jennifer, Glenn and Merry be charged with
Robbery In An Uninhabited Place; and that the
charges against William Go19 (the alleged new owner
of the building), and "Elmo Hubio" be dismissed for
insufficiency of evidence.20 ACP Tating found that the
subject condominium unit is in fact petitioner’s
residence and that respondents indeed took the
former’s personal belongings with intent to gain and
without petitioner’s consent. He further held that
respondents’ defenses are not only contradictory but
evidentiary in nature.21 The corresponding
Information22 was filed before the RTC of Manila,
docketed as Criminal Case No. 02-199574 and was
raffled to Branch 19. On motion of Jennifer, Glenn and
Merry, the RTC ordered a reinvestigation on the
ground of newly-discovered evidence consisting of an
affidavit of the witness.23 This notwithstanding, the
Office of the City Prosecutor (OCP) sustained in a
Resolution24 dated September 23, 2002 its earlier
conclusion and recommended the denial of
respondents’ motion for reconsideration.
When elevated before the Secretary of Justice, then
Secretary Simeon A. Datumanong (the Secretary)
reversed and set aside25 the ACP’s conclusions and the
latter was directed to move for the withdrawal of the
Information against respondents.26 The Secretary
stressed that the claimed residence of petitioner is not
an uninhabited place under the penal laws,
considering her allegation that it is her
residence.27 Neither can it be considered uninhabited
under Article 300 of the Revised Penal Code (RPC),
since it is located in a populous place.28 The Secretary
opined that the elements of robbery were not present,
since there was no violence against or intimidation of
persons, or force upon things, as the replacement of
the door lock was authorized by a board resolution.29 It
is likewise his conclusion that the element of taking
was not adequately established as petitioner and her
helper were not able to see the taking of anything of
value. If at all there was taking, the Secretary
concluded that it was made under a claim of
ownership.30 Petitioner’s motion for reconsideration
was denied on June 17, 2004.31
Aggrieved, petitioner went up to the Court of Appeals
(CA) in a special civil action for certiorari under Rule
65 of the Rules of Court. On December 20, 2004, the
CA rendered a Decision32 granting the petition and,
consequently, setting aside the assailed Secretary’s
Resolutions and reinstating the OCP’s Resolution with
the directive that the Information be amended to
reflect the facts as alleged in the complaint that the
robbery was committed in an inhabited place and that
it was committed through force upon things.33
The CA held that petitioner had sufficiently shown
that the Secretary gravely abused her discretion in
reversing the OCP’s decision.34 While recognizing the
mistake in the designation of the offense committed
because it should have been robbery in an inhabited
place, the CA held that the mistake can be remedied
by the amendment of the Information.35 Indeed, since
the element of violence against or intimidation of
persons was not established, the same was immaterial
as the crime was allegedly committed with force upon
things.36 Thus, it held that petitioner adequately
showed that at the time of the commission of the
offense, she was in possession of the subject residential
unit and that respondents should not have taken the
law into their own hands if they indeed had claims
over the personal properties inside the subject unit.37 It
also did not give credence to the newly-discovered
evidence presented by respondents, because the
affidavit was executed two years after the filing of
petitioner’s complaint.38Lastly, the CA held that the
element of taking was shown with circumstantial
evidence.39
On motion of respondents, the CA rendered an
Amended Decision40 dated May 9, 2005, setting aside
its earlier decision and reinstating the DOJ Secretaries’
Resolutions.41 It concluded that as part-owner of the
entire building and of the articles allegedly stolen from
the subject residential unit, the very same properties
involved in the pending estate proceedings,
respondents cannot, as co-owners, steal what they
claim to own and thus cannot be charged with
robbery.42 It continued and held that assuming that the
door was forced open, the same cannot be construed
as an element of robbery as such was necessary due to
petitioner’s unjustified refusal to allow the other co-
owners to gain access to the premises even for the
lawful purpose of allowing prospective buyers to have
a look at the building.43
Petitioner’s motion for reconsideration was denied in
the assailed Resolution44 dated February 10, 2006.
Hence, this petition raising the following issues:
I. THE HONORABLE COURT OF APPEALS
COMMITTED A GRIEVOUS ERROR WHEN IT
RULED THAT A CORPORATION MAY
ARBITRARILY TAKE THE LAW INTO THEIR
OWN HANDS BY MEANS OF A MERE BOARD
RESOLUTION.
II. THE HONORABLE COURT OF APPEALS
COMMITTED A GRIEVOUS ERROR WHEN IT
RULED THAT THE PETITIONER WAS NO
 LONGER IN POSSESSION OF THE UNIT
SIMPLY BECAUSE THE PETITIONER WAS IN
POSSESSION OF ANOTHER UNIT.45
We find no merit in the petition.
At the outset, a perusal of the records of Criminal Case
No. 02-199574 in People of the Philippines v. Benito
Fernandez Go, et al., pending before the RTC where
the Information for Robbery was filed, would show
that on March 12, 2008, Presiding Judge Zenaida R.
Daguna issued an Order46 granting the Motion to
Withdraw Information filed by ACP Armando C.
Velasco. The withdrawal of the information was based
on the alleged failure of petitioner to take action on
the Amended Decision issued by the CA which, in
effect, reversed and set aside the finding of probable
cause, and in order for the case not to appear pending
in the docket of the court. The propriety of the
determination of probable cause is, however, the
subject of this present petition. Besides, in allowing
the withdrawal of the information, the RTC in fact did
not make a determination of the existence of probable
cause. Thus, the withdrawal of the information does
not bar the Court from making a final determination
of whether or not probable cause exists to warrant the
filing of an Information for Robbery against
respondents in order to write finis to the issue elevated
before us.47
From the time the complaint was first lodged with the
OCP, the latter, the Secretary of Justice and the CA
had been in disagreement as to the existence or
absence of probable cause sufficient to indict
respondents of the offense charged. After a thorough
review of the records of the case, we find no reason to
depart from the CA conclusion that the evidence
presented was not sufficient to support a finding of
probable cause.
Probable cause refers to facts and circumstances that
engender a well-founded belief that a crime has been
committed and that the respondents are probably
guilty thereof and should be held for trial.48 There is
no definitive standard by which probable cause is
determined except to consider the attendant
conditions.49
Respondents were charged with robbery in an
uninhabited place, which was later amended to reflect
the facts as alleged in the complaint that the robbery
was committed in an inhabited place and that it was
committed through force upon things.50
"Any person who, with intent to gain, shall take any
personal property belonging to another, by means of
violence against or intimidation of any person, or
using force upon anything, is guilty of robbery."51 To
constitute robbery, the following elements must be
established:
(1) The subject is personal property belonging to
another;
(2) There is unlawful taking of that property;
(3) The taking is with the intent to gain; and
(4) There is violence against or intimidation of any
person or use of force upon things.52
Admittedly, the subject 10th floor unit is owned by
the corporation and served as the family residence
prior to the death of petitioner and respondents’
parents. The 10th floor unit, including the personal
properties inside, is the subject of estate proceedings
pending in another court and is, therefore, involved in
the disputed claims among the siblings (petitioner and
respondents). Respondents admitted that armed with
a Board Resolution authorizing them to break open
the door lock system of said unit and to install a new
door lock system, they went up to the subject unit to
implement said resolution. The said corporate action
was arrived at because petitioner had allegedly
prevented prospective buyers from conducting ocular
inspection.
Petitioner, however, claims that on December 16,
1999 and sometime in January 2000, respondents
brought out from the unit 34 boxes containing her
personal belongings worth more than P10 million. We
cannot, however, fathom why petitioner did not
immediately report the first incident and waited for
yet another incident after more or less one month. If
the value involved is what she claims to be, it is
contrary to human nature to just keep silent and not
immediately protect her right. Her general statement
that she was intimidated by Benito who was known to
be capable of inflicting bodily harm cannot excuse her
inaction. Petitioner, therefore, failed to establish that
there was unlawful taking.
Assuming that respondents indeed took said boxes
containing personal belongings, said properties were
taken under claim of ownership which negates the
element of intent to gain.
x x x Animus lucrandi or intent to gain is an internal
act which can be established through the overt acts of
the offender. The unlawful taking of another’s
property gives rise to the presumption that the act was
committed with intent to gain. This presumption
holds unless special circumstances reveal a different
intent on the part of the perpetrator x x x.53
Taking as an element of robbery means depriving the
offended party of ownership of the thing taken with
the character of permanency. The taking should not
be under a claim of ownership. Thus, one who takes
the property openly and avowedly under claim of title
offered in good faith is not guilty of robbery even
though the claim of ownership is untenable.54 The
intent to gain cannot be established by direct evidence
being an internal act. It must, therefore, be deduced
from the circumstances surrounding the commission
of the offense.55
In this case, it was shown that respondents believed in
good faith that they and the corporation own not only
the subject unit but also the properties found inside. If
at all, they took them openly and avowedly under that
claim of ownership.56 This is bolstered by the fact that
at the time of the alleged incident, petitioner had been
staying in another unit because the electric service in
the 10th floor was disconnected. We quote with
approval the CA conclusion in their Amended
Decision, thus:
Indeed, on second look, We note that what is involved
here is a dispute between and among members of a
family corporation, the Fortune Wealth Mansion
Corporation. Petitioner Lily Sy and respondents
Merry, Jennifer, and Glenn, all surnamed Sy, are the
owners-incorporators of said corporation, which owns
and manages the Fortune Wealth Mansion where
petitioner allegedly resided and where the crime of
robbery was allegedly committed. As part-owners of
the entire building and of the articles allegedly stolen
from the 10th floor of said building … the very same
properties that are involved between the same parties
in a pending estate proceeding, the respondents
cannot, as co-owners, be therefore charged with
robbery. The fact of co-ownership negates any
intention to gain, as they cannot steal properties
which they claim to own.
Hence, even if we are to assume that private
respondents took the said personal properties from the
10th floor of the Fortune Wealth Mansion, they
cannot be charged with robbery because again, the
taking was made under a claim of ownership x x x57
Respondents should not be held liable for the alleged
unlawful act absent a felonious intent.1âwphi1 "Actus
non facit reum, nisi mens sit rea. A crime is not
committed if the mind of the person performing the
act complained of is 58 innocent.
The Court adheres to the view that a preliminary
investigation serves not only the purposes of the State,
but more importantly, it is a significant part of
freedom and fair play which every individual is
entitled to. It is thus the duty of the prosecutor or the
judge, as the case may be, to relieve the accused of
going through a trial once it is determined that there
is no sufficient evidence to sustain a finding of
probable cause to form a sufficient belief that the
accused has committed a crime. In this case, absent
sufficient evidence to establish probable cause for the
prosecution of respondents for the crime of robbery,
the filing of information against respondents
constitute grave abuse of discretion.59
WHEREFORE,- premises considered, the petition is
hereby DENIED for lack of merit.
SO ORDERED.
DIOSDADO M. PERALTA
Associate Justice
WE CONCUR:
PRESBITERO J. VELASCO, JR.
Associate Justice
Chairperson
ARTURO D.
ROBERTO A. ABAD
BRION1âwphi1
Associate Justice
Associate Justice
JOSE PORTUGAL PEREZ**
Associate Justice
ATTESTATION
I attest that the conclusions in the above Decision had
been reached in consultation before the case was
assigned to the writer of the opinion of the Court's
Division.
PRESBITERO J. VELASCO, JR.
Associate Justice
Chairperson, Third Division
CERTIFICATION
Pursuant to Section 13, Article VIII of the
Constitution and the Division Chairperson's
Attestation, I certify that the conclusions in the above
Decision had been reached in consultation before the
case was assigned to the writer of the opinion of the
Court's Division.
MARIA LOURDES P. A. SERENO
Chief Justice
THEFT

21. Ryan Viray vs. People, GR No. 205180, Nov. 11,

2013

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 205180 November 11, 2013
RYAN VIRAY, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
VELASCO, JR., J.:
This is a Petition for Review on Certiorari under Rule
45 to reverse and set aside the August 31, 2012
Decision1 and January 7 2013 Resolution2 of the Court
of Appeals (CA) in CA-G.R. CR No. 33076, which
affirmed with modification the Decision of the
Regional Trial Court of Cavite City, Branch 16 (RTC),
in Criminal Case No. 66-07.
The factual backdrop of this case is as follows:
An Information for qualified theft was filed against
petitioner Ryan Viray before the RTC, which reads:
That on or about 19 October 2006, in the City of
Cavite, Republic of the Philippines, a place within the
jurisdiction of this Honorable Court, the above-named
accused, then being employed as a helper of ZENAIDA
VEDlJA y SOSA with intent to gain and with grave
abuse of confidence did then and there, willfully,
unlawfully and feloniously steal, take and carry away
several pieces of jewelry, One (1) Gameboy, One (1)
CD player, One (1) Nokia cell phone and a jacket with
a total value of ₱297,800.00 belonging to the said
Zenaida S. Vedua, without the latter s consent and to
her damage and prejudice in the aforestated amount of
₱297,800.00.
CONTRARY TO LAW.3
When arraigned, the accused pleaded "not guilty."4 At
the pre-trial, the defense proposed the stipulation, and
the prosecution admitted, that the accused was
employed as a dog caretaker of private complainant
ZenaidaVedua (Vedua) and was never allowed to enter
the house and he worked daily from 5:00 to 9:00 in the
morning.5
During trial, the prosecution presented evidence to
prove the following:
Private complainant Vedua maintains seventy-five
(75) dogs at her compound in Caridad, Cavite City.6 To
assist her in feeding the dogs and cleaning their cages,
private complainant employed the accused who would
report for work from 6:00 a.m. to 5:30 p.m.7 On
October 19, 2006, at around 6:30 in the morning,
accused arrived for work. Half an hour later or at 7
o’clock, private complainant left for Batangas. Before
leaving, she locked the doors of her house, and left the
accused to attend to her dogs. Later, at around 7:00 in
the evening, private complainant arrived home,
entering through the back door of her house. As
private complainant was about to remove her earrings,
she noticed that her other earrings worth PhP 25,000
were missing. She then searched for the missing
earrings but could not find them.8
Thereafter, private complainant also discovered that
her jacket inside her closet and her other pieces of
jewelry (rositas) worth PhP 250,000 were also missing.
A Gameboy (portable videogame console), a compact
disc player, a Nokia cellular phone and a Nike Air Cap
were likewise missing. The total value of the missing
items supposedly amounted to PhP 297,800. Private
complainant immediately checked her premises and
discovered that the main doors of her house were
destroyed.9 A plastic bag was also found on top of her
stereo, which was located near the bedroom. The
plastic bag contained a t-shirt and a pair of shorts later
found to belong to accused.10
Witness Nimfa Sarad, the laundrywoman of Vedua’s
neighbor, testified seeing Viray at Vedua’s house at
6:00 a.m. By 11:00 a.m., she went out on an errand and
saw Viray with an unidentified male companion
leaving Vedua’s house with a big sack.11
Another witness, Leon Young, who prepares
official/business letters for Vedua, testified that he
went to Vedua’s house between 10:00 and 11:00 am of
October 19, 2006 to retrieve a diskette and saw
petitioner with a male companion descending the
stairs of Vedua’s house. He alleged that since he knew
Viray as an employee of private complainant, he
simply asked where Vedua was. When he was told
that Vedua was in Batangas, he left and went back
three days after, only to be told about the robbery.12
Prosecution witness Beverly Calagos, Vedua’s stay-out
laundrywoman, testified that on October 19, 2006, she
reported for work at 5:00 a.m. Her employer left for
Batangas at 7:00 am leaving her and petitioner Viray
to go about their chores. She went home around 8:30
a.m. leaving petitioner alone in Vedua’s house.
Meanwhile, petitioner never reported for work after
that day.13
For his defense, Viray averred that he did not report
for work on the alleged date of the incident as he was
then down with the flu. His mother even called up
Vedua at 5:30 a.m. to inform his employer of his
intended absence. Around midnight of October 20,
2006, Vedua called Viray’s mother to report the loss of
some valuables in her house and alleged that Viray is
responsible for it. Petitioner’s sister and aunt
corroborated his version as regards the fact that he did
not go to work on October 19, 2006 and stayed home
sick.14
After the parties rested their respective cases, the trial
court rendered a Decision dated December 5,
2009,15 holding that the offense charged should have
been robbery and not qualified theft as there was an
actual breaking of the screen door and the main door
to gain entry into the house.16 Similarly, Viray cannot
be properly charged with qualified theft since he was
not a domestic servant but more of a laborer paid on a
daily basis for feeding the dogs of the complainant.17
In this light, the trial court found that there is
sufficient circumstantial evidence to conclude that
Viray was the one responsible for the taking of
valuables belonging to Vedua.18 Hence, the RTC found
petitioner Viray guilty beyond reasonable doubt of
robbery and sentenced him, thus:
WHEREFORE, in view of the foregoing
considerations, the Court finds the accused RYAN
VIRAY GUILTY beyond reasonable doubt for the
crime of robbery and hereby sentences him to suffer
the indeterminate imprisonment ranging from FOUR
(4) years, TWO (2) months and ONE (1) day of prision
correccional, as minimum, to EIGHT (8) years of
prision mayor, as maximum.
SO ORDERED.19
Aggrieved, petitioner elevated the case to the CA.
The appellate court found that the Information filed
against Viray shows that the prosecution failed to
allege one of the essential elements of the crime of
robbery, which is "the use of force upon things." Thus,
to convict him of robbery, a crime not necessarily
included in a case of qualified theft, would violate the
constitutional mandate that an accused must be
informed of the nature and cause of the accusation
against him.20
Nonetheless, the CA held that a conviction of the
accused for qualified theft is warranted considering
that Viray enjoyed Vedua’s confidence, being the
caretaker of the latter’s pets. Viray committed a grave
abuse of this confidence when, having access to the
outside premises of private complainant’s house, he
forced open the doors of the same house and stole the
latter’s personal belongings.21 In its assailed Decision,
the appellate court, thus, modified the ruling of the
trial court holding that the accused is liable for the
crime of qualified theft.
As to the penalty imposed, considering that there was
no independent estimate of the value of the stolen
properties, the CA prescribed the penalty under
Article 309(6)22 in relation to Article 31023 of the
Revised Penal Code (RPC).24The dispositive portion of
the assailed Decision reads, viz:
WHEREFORE, premises considered, the instant
appeal is PARTLY GRANTED. The appealed Decision
of the court a quo is hereby AFFIRMED with
MODIFICATION that the accused-appellant be
convicted for the crime of QUALIFIED THEFT and is
hereby sentenced to suffer indeterminate
imprisonment of four (4) months and one (1) day of
arresto mayor , as minimum, to two (2) years, four (4)
months and one (1) day of prision correccional , as
maximum. The appellant is also ordered to return the
pieces of jewelry and other personal belongings taken
from private complainant. Should restitution be no
longer possible, the accused appellant must pay the
equivalent value of the unreturned items.
SO ORDERED.25
When the appellate court, in the adverted Resolution
of January 7, 2013,26 denied his motion for
reconsideration,27Viray interposed the present
petition asserting that the CA committed a reversible
error in finding him guilty. Petitioner harps on the
supposed inconsistencies of the testimonies of the
prosecution witnesses in advancing his position that
the evidence presented against him fall short of the
quantum of evidence necessary to convict him of
qualified theft.28
In the meantime, in its Comment29 on the present
petition, respondent People of the Philippines asserts
that the alleged inconsistencies in the testimonies of
the prosecution witnesses are so insignificant and do
not affect the credibility and weight of their
affirmation that petitioner was at the crime scene
when the crime was committed.30 In fact, these minor
inconsistencies tend to strengthen the testimonies
because they discount the possibility that they were
fabricated.31 What is more, so respondent contends,
these positive testimonies outweigh petitioner’s
defense of denial and alibi.32
In resolving the present petition, We must reiterate
the hornbook rule that this court is not a trier of facts,
and the factual findings of the trial court, when
sustained by the appellate court, are binding in the
absence of any indication that both courts
misapprehended any fact that could change the
disposition of the controversy.33
In the present controversy, while the CA modified the
decision of the trial court by convicting petitioner of
qualified theft rather than robbery, the facts as found
by the court a quo were the same facts used by the CA
in holding that all the elements of qualified theft
through grave abuse of confidence were present. It is
not, therefore, incumbent upon this Court to
recalibrate the evidence presented by the parties
during trial.
Be that as it may, We find it necessary to modify the
conclusion derived by the appellate court from the
given facts regarding the crime for which petitioner
must be held accountable.
Art. 308 in relation to Art. 310 of the RPC describes
the felony of qualified theft:
Art. 308. Who are liable for theft. – Theft is committed
by any person who, with intent to gain but without
violence against, or intimidation of persons nor force
upon things, shall take personal property of another
without the latter’s consent.
xxxx
Art. 310. Qualified Theft. – The crime of theft shall be
punished by the penalties next higher by two degrees
than those respectively specified in the next preceding
article, if committed by a domestic servant, or with
grave abuse of confidence, or if the property stolen is
motor vehicle, mail matter or large cattle or consists of
coconuts taken from the premises of the plantation,
fish taken from a fishpond or fishery or property is
taken on the occasion of fire, earthquake, typhoon,
volcanic eruption, or any other calamity, vehicular
accident or civil disturbance. (Emphasis supplied.)
The crime charged against petitioner is theft qualified
by grave abuse of confidence. In this mode of qualified
theft, this Court has stated that the following elements
must be satisfied before the accused may be convicted
of the crime charged:
1. Taking of personal property;
 2. That the said property belongs to another;
3. That the said taking be done with intent to gain;
4. That it be done without the owner’s consent;
5. That it be accomplished without the use of
violence or intimidation against persons, nor of
force upon things; and
6. That it be done with grave abuse of confidence.34
As pointed out by both the RTC and the CA, the
prosecution had proved the existence of the first four
elements enumerated above beyond reasonable doubt.
First, it was proved that the subjects of the offense
were all personal or movable properties, consisting as
they were of jewelry, clothing, cellular phone, a media
player and a gaming device.
Second, these properties belong to private
complainant Vedua. Third, circumstantial evidence
places petitioner in the scene of the crime during the
day of the incident, as numerous witnesses saw him in
Vedua’s house and his clothes were found inside the
house. He was thereafter seen carrying a heavy-
looking sack as he was leaving private complainant’s
house. All these circumstances portray a chain of
events that leads to a fair and reasonable conclusion
that petitioner took the personal properties with
intent to gain, especially considering that, fourth,
Vedua had not consented to the removal and/or taking
of these properties.
With regard to the fifth and sixths elements, however,
the RTC and the CA diverge in their respective
Decisions.
The RTC found that the taking committed by
petitioner was not qualified by grave abuse of
confidence, rather it was qualified by the use of force
upon things. The trial court held that there was no
confidence reposed by the private complainant on
Viray that the latter could have abused. In fact, Vedua
made sure that she locked the door before leaving.
Hence, Viray was compelled to use force to gain entry
into Vedua’s house thereby committing the crime of
robbery, not theft.
The CA, on the other hand, opined that the breaking
of the screen and the door could not be appreciated to
qualify petitioner’s crime to robbery as such use of
force was not alleged in the Information. Rather, this
breaking of the door, the CA added, is an indication of
petitioner’s abuse of the confidence given by private
complainant. The CA held that "[Viray] enjoyed the
confidence of the private complainant, being the
caretaker of the latter’s pets. He was given access to
the outside premises of private complainant’s house
which he gravely abused when he forced open the
doors of the same house and stole the latter’s
belongings."35 Committing grave abuse of confidence
in the taking of the properties, petitioner was found by
the CA to be liable for qualified theft.
This Court is inclined to agree with the CA that the
taking committed by petitioner cannot be qualified by
the breaking of the door, as it was not alleged in the
Information. However, we disagree from its finding
that the same breaking of the door constitutes the
qualifying element of grave abuse of confidence to
sentence petitioner Viray to suffer the penalty for
qualified theft. Instead, We are one with the RTC that
private complainant did not repose on Viray
"confidence" that the latter could have abused to
commit qualified theft.
The very fact that petitioner "forced open" the main
door and screen because he was denied access to
private complainant’s house negates the presence of
such confidence in him by private complainant.
Without ready access to the interior of the house and
the properties that were the subject of the taking, it
cannot be said that private complaint had a "firm trust"
on petitioner or that she "relied on his
discretion"36 and that the same trust reposed on him
facilitated Viray’s taking of the personal properties
justifying his conviction of qualified theft.
To warrant the conviction and, hence, imposition of
the penalty for qualified theft, there must be an
allegation in the information and proof that there
existed between the offended party and the accused
such high degree of confidence37 or that the stolen
goods have been entrusted to the custody or vigilance
of the accused.38 In other words, where the accused
had never been vested physical access to,39 or material
possession of, the stolen goods, it may not be said that
he or she exploited such access or material possession
thereby committing such grave abuse of confidence in
taking the property. Thus, in People v. Maglaya,40 this
Court refused to impose the penalty prescribed for
qualified theft when the accused was not given
material possession or access to the property:
Although appellant had taken advantage of his
position in committing the crime aforementioned,
We do not believe he had acted with grave abuse of
confidence and can be convicted of qualified theft,
because his employer had never given him the
possession of the machines involved in the present
case or allowed him to take hold of them, and it does
not appear that the former had any special confidence
in him. Indeed, the delivery of the machines to the
prospective customers was entrusted, not to appellant,
but to another employee.
Inasmuch as the aggregate value of the machines
stolen by appellant herein is ₱13,390.00, the crime
committed falls under Art. 308, in relation to the first
subdivision of Art.309 of the Revised Penal Code,
which prescribes the penalty of prisión mayor in its
minimum and medium periods.1âwphi1 No
modifying circumstance having attended the
commission of the offense, said penalty should be
meted out in its medium period, or from 7 years, 4
months and 1 day to 8 years and 8 months of prisión
mayor. The penalty imposed in the decision appealed
from is below this range. (Emphasis and underscoring
supplied.)
The allegation in the information that the offender is
a laborer of the offended party does not by itself,
without more, create the relation of confidence and
intimacy required by law for the imposition of the
penalty prescribed for qualified theft.41 Hence, the
conclusion reached by the appellate court that
petitioner committed qualified theft because he
"enjoyed the confidence of the private complainant,
being the caretaker of the latter’s pets" is without legal
basis. The offended party’s very own admission that
the accused was never allowed to enter the
house42where the stolen properties were kept refutes
the existence of the high degree of confidence that the
offender could have allegedly abused by "forcing open
the doors of the same house."43
Without the circumstance of a grave abuse of
confidence and considering that the use of force in
breaking the door was not alleged in the Information,
petitioner can only be held accountable for the crime
of simple theft under Art. 308 in relation to Art. 309
of the RPC.
As for the penalty, We note with approval the
observation made by the appellate court that the
amount of the property taken was not established by
an independent and reliable estimate. Thus, the Court
may fix the value of the property taken based on the
attendant circumstances of the case or impose the
minimum penalty under Art. 309 of the RPC.44 In this
case, We agree with the observation made by the
appellate court in accordance with the rule that "if
there is no available evidence to prove the value of the
stolen property or that the prosecution failed to prove
it, the corresponding penalty to be imposed on the
accused-appellant should be the minimum penalty
corresponding to theft involving the value of
₱5.00."45 Accordingly, We impose the prescribed
penalty under Art. 309(6) of the RPC, which is arresto
mayor in its minimum and medium periods. The
circumstance of the breaking of the door, even if
proven during trial, cannot be considered as a generic
aggravating circumstance as it was not alleged in the
Information.46 Thus, the Court finds that the penalty
prescribed should be imposed in its medium period,
that is to say, from two (2) months and one (1) day to
three (3) months of arresto mayor.
Lastly, We delete the order for the reparation of the
stolen property. Art. 2199 of the Civil Code is clear
that one is entitled to an adequate compensation only
for such pecuniary loss suffered by him, as he has duly
proved. Since, as aforesaid, the testimony of the
private complainant is not sufficient to establish the
value of the property taken, nor may the courts take
judicial notice of such testimony, We cannot award
the reparation of the stolen goods.47
WHEREFORE, the C Decision of August 31, 2012 in
CA-G.R. CR No. 33076 is AFFIRMED with
MODIFICATION. Petitioner Ryan Viray is found
GUILTY beyond reasonable doubt of SIMPLE THEFT
and is sentenced to suffer the penalty of imprisonment
for two (2) months and one (1) day to three (3) months
of arresto mayor. Further, for want of convincing
proof as to the value of the property stolen, the order
for reparation is hereby DELETED.
SO ORDERED.
PRESBITERO J. VELASCO, JR.
Associate Justice
WE CONCUR:
ROBERTO A. ABAD
Associate Justice
 JOSE PORTUGAL JOSE CATRAL
PEREZ* MENDOZA
Associate Justice Associate Justice
MARVIC MARIO VICTOR F. LEONEN
Associate Justice
ATTESTATION
I attest that the conclusions in the above Decision had
been reached in consultation before the case was
assigned to the writer of the opinion of the Court’s
Division.
PRESBITERO J. VELASCO, JR.
Associate Justice
Chairperson
CERTIFICATION
Pursuant to Section 13 A1iicle VIII of the Constitution
and the Division Chairperson s Attestation, I certify
that the conclusions in the above Decision had been
reached in consultation before the case was assigned
to the writer of the opinion of the Court’s Division.
MARIA LOURDES P A SERENO
Chief Justice
22. Worldwide Web Corp. vs. PLDT Company, GR
Nos. 161106-161266, Jan. 13, 2014

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 161106 January 13, 2014
WORLDWIDE WEB CORPORATION and
CHERRYLL L. YU, Petitioners,
vs.
PEOPLE OF THE PHILIPPINES and PHILIPPINE
LONG DISTANCE TELEPHONE
COMPANY, Respondents.
x-----------------------x
G.R. No. 161266
PLANET INTERNET CORP., Petitioner,
vs.
PHILIPPINE LONG DISTANCE TELEPHONE
COMPANY, Respondent.
DECISION
SERENO, CJ:
Petitioners filed the present Petitions under Rule 45 of
the Rules of Court to set aside the Decision1 dated 20
August 2003 and the Resolution2 dated 27 November
2003 of the Court of Appeals (CA) reversing the
quashal of the search warrants previously issued by the
Regional Trial Court (RTC).
Police Chief Inspector Napoleon Villegas of the
Regional Intelligence Special Operations Office
(RISOO) of the Philippine National Police filed
applications for warrants3 before the RTC of Quezon
City, Branch 78, to search the office premises of
petitioner Worldwide Web Corporation
(WWC)4 located at the 11th floor, IBM Plaza Building,
No. 188 Eastwood City, Libis, Quezon City, as well as
the office premises of petitioner Planet Internet
Corporation (Planet Internet)5 located at UN 2103,
21/F Orient Square Building, Emerald Avenue,
Barangay San Antonio, Pasig City. The applications
alleged that petitioners were conducting illegal toll
bypass operations, which amounted to theft and
violation of Presidential Decree No. 401 (Penalizing
the Unauthorized Installation of Water, Electrical or
Telephone Connections, the Use of Tampered Water
or Electrical Meters and Other Acts), to the damage
and prejudice of the Philippine Long Distance
Telephone Company (PLDT).6
On 25 September 2001, the trial court conducted a
hearing on the applications for search warrants. The
applicant and Jose Enrico Rivera (Rivera) and
Raymund Gali (Gali) of the Alternative Calling
Pattern Detection Division of PLDT testified as
witnesses.
According to Rivera, a legitimate international long
distance call should pass through the local exchange or
public switch telephone network (PSTN) on to the toll
center of one of the international gateway facilities
(IGFs)7 in the Philippines.8 The call is then
transmitted to the other country through voice
circuits, either via fiber optic submarine cable or
microwave radio using satellite facilities, and passes
the toll center of one of the IGFs in the destination
country. The toll center would then meter the call,
which will pass through the PSTN of the called
number to complete the circuit. In contrast,
petitioners were able to provide international long
distance call services to any part of the world by using
PLDT’s telephone lines, but bypassing its IGF. This
scheme constitutes toll bypass, a "method of routing
and completing international long distance calls using
lines, cables, antenna and/or wave or frequency which
connects directly to the local or domestic exchange
facilities of the originating country or the country
where the call is originated."9
On the other hand, Gali claimed that a phone number
serviced by PLDT and registered to WWC was used to
provide a service called GlobalTalk, "an internet-based
international call service, which can be availed of via
prepaid or billed/post-paid accounts."10 During a test
call using GlobalTalk, Gali dialed the local PLDT
telephone number 6891135, the given access line.
After a voice prompt required him to enter the user
code and personal identification number (PIN)
provided under a GlobalTalk pre-paid account, he was
then requested to enter the destination number,
which included the country code, phone number and
a pound (#) sign. The call was completed to a phone
number in Taiwan. However, when he checked the
records, it showed that the call was only directed to
the local number 6891135. This indicated that the
international test call using GlobalTalk bypassed
PLDT’s IGF.
Based on the records of PLDT, telephone number
6891135 is registered to WWC with address at UN
2103, 21/F Orient Square Building, Emerald Avenue,
Barangay San Antonio, Pasig City.11 However, upon an
ocular inspection conducted by Rivera at this address,
it was found that the occupant of the unit is Planet
Internet, which also uses the telephone lines
registered to WWC.12 These telephone lines are
interconnected to a server and used as dial-up access
lines/numbers of WWC.
Gali further alleged that because PLDT lines and
equipment had been illegally connected by petitioners
to a piece of equipment that routed the international
calls and bypassed PLDT’s IGF, they violated
Presidential Decree (P.D.) No. 401 as amended,13 on
unauthorized installation of telephone connections.
Petitioners also committed theft, because through
their misuse of PLDT phone lines/numbers and
equipment and with clear intent to gain, they illegally
stole business and revenues that rightly belong to
PLDT. Moreover, they acted contrary to the letter and
intent of Republic Act (R.A.) No. 7925, because in
bypassing the IGF of PLDT, they evaded the payment
of access and bypass charges in its favor while "piggy-
backing" on its multi-million dollar facilities and
infrastructure, thus stealing its business revenues from
international long distance calls. Further, petitioners
acted in gross violation of Memorandum Circular No.
6-2-92 of the National Telecommunications
Commission (NTC) prohibiting the use of customs
premises equipment (CPE) without first securing type
approval license from the latter.
Based on a five-day sampling of the phone line of
petitioners, PLDT computed a monthly revenue loss of
₱764,718.09. PLDT likewise alleged that petitioners
deprived it of foreign exchange revenues, and evaded
the payment of taxes, license fees, and charges, to the
prejudice of the government.
During the hearing, the trial court required the
identification of the office premises/units to be
searched, as well as their floor plans showing the
location of particular computers and servers that
would be taken.14
On 26 September 2001, the RTC granted the
application for search warrants.15 Accordingly, the
following warrants were issued against the office
premises of petitioners, authorizing police officers to
seize various items:
1. Search Warrant No. Q-01-3856,16 issued for
violation of paragraph one (1) of Article 308 (theft)
in relation to Article 309 of the Revised Penal Code
against WWC, Adriel S. Mirto, Kevin L. Tan,
Cherryll L. Yu, Carmelo J. Canto, III, Ferdinand B.
Masi, Message One International Corporation,
Adriel S. Mirto, Nova Christine L. Dela Cruz,
Robertson S. Chiang, and Nolan B. Sison with
business address at 11/F IBM Plaza Building, No.
188 Eastwood City, Cyberpark Libis, Quezon City:
a) Computers or any equipment or device
capable of accepting information, applying the
process of the information and supplying the
results of this process;
b) Software, Diskettes, Tapes or equipment or
device used for recording or storing
information; and c) Manuals, application
forms, access codes, billing statements,
receipts, contracts, communications and
documents relating to securing and using
telephone lines and/or equipment.
2. Search Warrant No. Q-01-3857,17 issued for
violation of P.D. 401 against Planet Internet
Corporation/Mercury One, Robertson S. Chiang,
Nikki S. Chiang, Maria Sy Be Chiang, Ben C.
Javellana, Carmelita Tuason with business address
at UN 2103, 21/F Orient Square Building, Emerald
Avenue, Barangay San Antonio, Pasig City:
a) Modems or Routers or any equipment or
device that enables data terminal equipment
such as computers to communicate with other
data terminal equipment via a telephone line;
b) Computers or any equipment or device
capable of accepting information applying the
prescribed process of the information and
supplying the results of this process;
c) Lines, Cables and Antennas or equipment or
device capable of transmitting air waves or
frequency, such as an IPL and telephone lines
and equipment;
d) Multiplexers or any equipment or device
that enables two or more signals from different
sources to pass through a common cable or
transmission line;
 e) PABX or Switching Equipment, Tapes or
equipment or device capable of connecting
telephone lines;
f) Software, Diskettes, Tapes or equipment or
device used for recording or storing
information; and
g) Manuals, application forms, access codes,
billing statement, receipts, contracts, checks,
orders, communications and documents, lease
and/or subscription agreements or contracts,
communications and documents relating to
securing and using telephone lines and/or
equipment.
3. Search Warrant No. Q-01-3858,18 issued for
violation of paragraph one (1) of Article 308 (theft)
in relation to Article 309 of the Revised Penal Code
against Planet Internet Corporation/Mercury One,
Robertson S. Chiang, Nikki S. Chiang, Maria Sy Be
Chiang, Ben C. Javellana, Carmelita Tuason with
business address at UN 2103, 21/F Orient Square
Building, Emerald Avenue, Barangay San Antonio,
Pasig City:
a) Modems or Routers or any equipment or
device that enables data terminal equipment
such as computers to communicate with other
data terminal equipment via a telephone line;
b) Computers or any equipment or device
capable of accepting information applying the
prescribed process of the information and
supplying the results of this process;
c) Lines, Cables and Antennas or equipment or
device capable of transmitting air waves or
frequency, such as an IPL and telephone lines
and equipment;
d) Multiplexers or any equipment or device
that enables two or more signals from different
sources to pass through a common cable or
transmission line;
 e) PABX or Switching Equipment, Tapes or
equipment or device capable of connecting
telephone lines;
f) Software, Diskettes, Tapes or equipment or
device used for recording or storing
information; and
g) Manuals, application forms, access codes,
billing statement, receipts, contracts, checks,
orders, communications and documents, lease
and/or subscription agreements or contracts,
communications and documents relating to
securing and using telephone lines and/or
equipment.
The warrants were implemented on the same day by
RISOO operatives of the National Capital Region
Police Office.
Over a hundred items were seized,19 including 15
central processing units (CPUs), 10 monitors,
numerous wires, cables, diskettes and files, and a
laptop computer.20 Planet Internet notes that even
personal diskettes of its employees were confiscated;
and areas not devoted to the transmission of
international calls, such as the President’s Office and
the Information Desk, were searched. Voltage
regulators, as well as reserve and broken computers,
were also seized. Petitioners WWC and Cherryll
Yu,21 and Planet Internet22 filed their respective
motions to quash the search warrants, citing basically
the same grounds: (1) the search warrants were issued
without probable cause, since the acts complained of
did not constitute theft; (2) toll bypass, the act
complained of, was not a crime; (3) the search
warrants were general warrants; and (4) the objects
seized pursuant thereto were "fruits of the poisonous
tree."
PLDT filed a Consolidated Opposition23 to the motions
to quash.
In the hearing of the motions to quash on 19 October
2001, the test calls alluded to by Gali in his Affidavit
were shown to have passed the IGF of Eastern
Telecommunications (Philippines) Inc. (Eastern) and
of Capital Wireless (Capwire).24 Planet Internet
explained that Eastern and Capwire both provided
international direct dialing services, which Planet
Internet marketed by virtue of a "Reseller Agreement."
Planet Internet used PLDT lines for the first phase of
the call; but for the second phase, it used the IGF of
either Eastern or Capwire. Planet Internet religiously
paid PLDT for its domestic phone bills and Eastern and
Capwire for its IGF usage. None of these contentions
were refuted by PLDT.
The RTC granted the motions to quash on the ground
that the warrants issued were in the nature of general
warrants.25 Thus, the properties seized under the said
warrants were ordered released to petitioners.
PLDT moved for reconsideration,26 but its motion was
denied27 on the ground that it had failed to get the
conformity of the City Prosecutor prior to filing the
motion, as required under Section 5, Rule 110 of the
Rules on Criminal Procedure.
THE CA RULING
PLDT appealed to the CA, where the case was
docketed as CA-G.R. No. 26190. The CA reversed and
set aside the assailed RTC Resolutions and declared the
search warrants valid and effective.28
Petitioners separately moved for reconsideration of
the CA ruling.29 Among the points raised was that
PLDT should have filed a petition for certiorari rather
than an appeal when it questioned the RTC Resolution
before the CA. The appellate court denied the Motions
for Reconsideration.30
Rule 45 Petitions were separately filed by petitioners
WWC and Cherryll Yu,31 and Planet Internet32 to
assail the CA Decision and Resolution. The Court
consolidated the two Petitions.33
ISSUES
I. Whether the CA erred in giving due course to
PLDT’s appeal despite the following procedural
infirmities:
1. PLDT, without the conformity of the public
prosecutor, had no personality to question the
quashal of the search warrants;
 2. PLDT assailed the quashal orders via an
appeal rather than a petition for certiorari
under Rule 65 of the Rules of Court.
II. Whether the assailed search warrants were
issued upon probable cause, considering that the
acts complained of allegedly do not constitute
theft.
III. Whether the CA seriously erred in holding that
the assailed search warrants were not general
warrants.
OUR RULING
I.
1. An application for a search warrant is not a criminal
action; conformity of the public prosecutor is not
necessary to
give the aggrieved party personality to question an
order
quashing search warrants.
Petitioners contend that PLDT had no personality to
question the quashal of the search warrants without
the conformity of the public prosecutor. They argue
that it violated Section 5, Rule 110 of the Rules of
Criminal Procedure, to wit:
SEC. 5. Who must prosecute criminal actions. — All
criminal actions commenced by a complaint or
information shall be prosecuted under the direction
and control of the prosecutor.
The above provision states the general rule that the
public prosecutor has direction and control of the
prosecution of "(a)ll criminal actions commenced by a
complaint or information." However, a search warrant
is obtained, not by the filing of a complaint or an
information, but by the filing of an application
therefor.34
Furthermore, as we held in Malaloan v. Court of
Appeals,35 an application for a search warrant is a
"special criminal process," rather than a criminal
action:
The basic flaw in this reasoning is in erroneously
equating the application for and the obtention of a
search warrant with the institution and prosecution of
a criminal action in a trial court. It would thus
categorize what is only a special criminal process, the
power to issue which is inherent in all courts, as
equivalent to a criminal action, jurisdiction over
which is reposed in specific courts of indicated
competence. It ignores the fact that the requisites,
procedure and purpose for the issuance of a search
warrant are completely different from those for the
institution of a criminal action.
For, indeed, a warrant, such as a warrant of arrest or a
search warrant, merely constitutes process. A search
warrant is defined in our jurisdiction as an order in
writing issued in the name of the People of the
Philippines signed by a judge and directed to a peace
officer, commanding him to search for personal
property and bring it before the court. A search
warrant is in the nature of a criminal process akin to a
writ of discovery. It is a special and peculiar remedy,
drastic in its nature, and made necessary because of a
public necessity.
In American jurisdictions, from which we have taken
our jural concept and provisions on search warrants,
such warrant is definitively considered merely as a
process, generally issued by a court in the exercise of
its ancillary jurisdiction, and not a criminal action to
be entertained by a court pursuant to its original
jurisdiction. We emphasize this fact for purposes of
both issues as formulated in this opinion, with the
catalogue of authorities herein.36(Emphasis supplied)
Clearly then, an application for a search warrant is not
a criminal action. Meanwhile, we have consistently
recognized the right of parties to question orders
quashing those warrants.37 Accordingly, we sustain
the CA’s ruling that the conformity of the public
prosecutor is not necessary before an aggrieved party
moves for reconsideration of an order granting a
motion to quash search warrants.
2. An order quashing a search warrant, which was
issued
independently prior to the filing of a criminal action,
partakes
of a final order that can be the proper subject of an
appeal.
Petitioners also claim that since the RTC ruling on the
motions to quash was interlocutory, it cannot be
appealed under Rule 41 of the Rules of Court. PLDT
should have filed a Rule 65 petition instead.
Petitioners cite, as authority for their position,
Marcelo v. de Guzman.38 The Court held therein as
follows:
But is the order of Judge de Guzman denying the
motion to quash the search warrant and to return the
properties seized thereunder final in character, or is it
merely interlocutory? In Cruz vs. Dinglasan, this
Court, citing American jurisprudence, resolved this
issue thus:
Where accused in criminal proceeding has petitioned
for the return of goods seized, the order of restoration
by an inferior court is interlocutory and hence, not
appealable; likewise, a denial, by the US District Court,
of defendant's petition for the return of the articles
seized under a warrant is such an interlocutory order.
(56 C.J. 1253).
A final order is defined as one which disposes of the
whole subject matter or terminates a particular
proceeding or action, leaving nothing to be done but
to enforce by execution what has been determined; on
the other hand an order is interlocutory if it does not
dispose of a case completely, but leaves something
more to be done upon its merits. Tested against this
criterion, the search warrant issued in Criminal Case
No. 558 is indisputably of interlocutory character
because it leaves something more to be done in the said
criminal case, i.e., the determination of the guilt of the
accused therein.39
Petitioners’ reliance upon Marcelo is misplaced.
An application for a search warrant is a judicial process
conducted either as an incident in a main criminal case
already filed in court or in anticipation of one yet to
be filed.40 Whether the criminal case (of which the
search warrant is an incident) has already been filed
before the trial court is significant for the purpose of
determining the proper remedy from a grant or denial
of a motion to quash a search warrant.
Where the search warrant is issued as an incident in a
pending criminal case, as it was in Marcelo, the
quashal of a search warrant is merely interlocutory.
There is still "something more to be done in the said
criminal case, i.e., the determination of the guilt of the
accused therein."41
In contrast, where a search warrant is applied for and
issued in anticipation of a criminal case yet to be filed,
the order quashing the warrant (and denial of a motion
for reconsideration of the grant) ends the judicial
process. There is nothing more to be done thereafter.
Thus, the CA correctly ruled that Marcelo does not
apply to this case. Here, the applications for search
warrants were instituted as principal proceedings and
not as incidents to pending criminal actions. When the
search warrants issued were subsequently quashed by
the RTC, there was nothing left to be done by the trial
court. Thus, the quashal of the search warrants were
final orders, not interlocutory, and an appeal may be
properly taken therefrom.
II.
Trial judges determine probable cause in the exercise
of their
judicial functions. A trial judge’s finding of probable
cause
for the issuance of a search warrant is accorded respect
by
reviewing courts when the finding has substantial
basis.
Petitioners claim that no probable cause existed to
justify the issuance of the search warrants.
The rules pertaining to the issuance of search warrants
are enshrined in Section 2, Article III of the 1987
Constitution:
Section 2. The right of the people to be secure in their
persons, houses, papers, and effects against
unreasonable searches and seizures of whatever nature
and for any purpose shall be inviolable, and no search
warrant or warrant of arrest shall issue except upon
probable cause to be determined personally by the
judge after examination under oath or affirmation of
the complainant and the witnesses he may produce,
and particularly describing the place to be searched
and the persons or things to be seized. (Emphasis
supplied)
In the issuance of a search warrant, probable cause
requires "such facts and circumstances that would lead
a reasonably prudent man to believe that an offense
has been committed and the objects sought in
connection with that offense are in the place to be
searched."42
There is no exact test for the determination of
probable cause43 in the issuance of search warrants. It
is a matter wholly dependent on the finding of trial
judges in the process of exercising their judicial
function.44 They determine probable cause based on
"evidence showing that, more likely than not, a crime
has been committed and that it was committed" by the
offender.45
When a finding of probable cause for the issuance of a
search warrant is made by a trial judge, the finding is
accorded respect by reviewing courts:
x x x. It is presumed that a judicial function has been
regularly performed, absent a showing to the contrary.
A magistrate’s determination of probable cause for the
issuance of a search warrant is paid great deference by
a reviewing court, as long as there was substantial basis
for that determination. Substantial basis means that
the questions of the examining judge brought out such
facts and circumstances as would lead a reasonably
discreet and prudent man to believe that an offense has
been committed, and the objects in connection with
the offense sought to be seized are in the place sought
to be searched.46
The transcript of stenographic notes during the
hearing for the application for search warrants on 25
September 2001 shows that Judge Percival Mandap
Lopez asked searching questions to the witnesses and
particularly sought clarification on the alleged illegal
toll bypass operations of petitioners, as well as the
pieces of evidence presented. Thus, the Court will no
longer disturb the finding of probable cause by the
trial judge during the hearing for the application for
the search warrants.
However, petitioners insist that the determination of
the existence of probable cause necessitates the prior
determination of whether a crime or an offense was
committed in the first place. In support of their
contention that there was no probable cause for the
issuance of the search warrants, petitioners put
forward the adage nullum crimen, nulla poena sine
lege – there is no crime when there is no law
punishing it. Petitioners argue that there is no law
punishing toll bypass, the act complained of by PLDT.
Thus, no offense was committed that would justify the
issuance of the search warrants.
According to PLDT, toll bypass enables international
calls to appear as local calls and not overseas calls, thus
effectively evading payment to the PLDT of access,
termination or bypass charges, and accounting rates;
payment to the government of taxes; and compliance
with NTC regulatory requirements. PLDT concludes
that toll bypass is prohibited, because it deprives
"legitimate telephone operators, like PLDT… of the
compensation which it is entitled to had the call been
properly routed through its network."47 As such, toll
bypass operations constitute theft, because all of the
elements of the crime are present therein.
On the other hand, petitioners WWC and Cherryll Yu
argue that there is no theft to speak of, because the
properties allegedly taken from PLDT partake of the
nature of "future earnings and lost business
opportunities" and, as such, are uncertain,
anticipative, speculative, contingent, and conditional.
PLDT cannot be deprived of such unrealized earnings
and opportunities because these do not belong to it in
the first place.
Upon a review of the records of the case, we
understand that the Affidavits of Rivera and Gali that
accompanied the applications for the search warrants
charge petitioners with the crime, not of toll bypass
perse, but of theft of PLDT’s international long
distance call business committed by means of the
alleged toll bypass operations.
For theft to be committed in this case, the following
elements must be shown to exist: (1) the taking by
petitioners (2) of PLDT’s personal property (3) with
intent to gain (4) without the consent of PLDT (5)
accomplished without the use of violence against or
intimidation of persons or the use of force upon
things.48
Petitioners WWC and Cherryll Yu only take issue
with categorizing the earnings and business as
personal properties of PLDT. However, in Laurel v.
Abrogar,49 we have already held that the use of PLDT’s
communications facilities without its consent
constitutes theft of its telephone services and business:
x x x "[I]nternational long distance calls," the matter
alleged to be stolen in the instant case, take the form
of electrical energy, it cannot be said that such
international long distance calls were personal
properties belonging to PLDT since the latter could
not have acquired ownership over such calls. PLDT
merely encodes, augments, enhances, decodes and
transmits said calls using its complex communications
infrastructure and facilities. PLDT not being the
owner of said telephone calls, then it could not validly
claim that such telephone calls were taken without its
consent.
It is the use of these communications facilities without
the consent of PLDT that constitutes the crime of
theft, which is the unlawful taking of the telephone
services and business.
Therefore, the business of providing
telecommunication and the telephone service are
personal property under Article 308 of the Revised
Penal Code, and the act of engaging in ISR is an act of
"subtraction" penalized under said article. However,
the Amended Information describes the thing taken
as, "international long distance calls," and only later
mentions "stealing the business from PLDT" as the
manner by which the gain was derived by the accused.
In order to correct this inaccuracy of description, this
case must be remanded to the trial court and the
prosecution directed to amend the Amended
Information, to clearly state that the property subject
of the theft are the services and business of respondent
PLDT. Parenthetically, this amendment is not
necessitated by a mistake in charging the proper
offense, which would have called for the dismissal of
the information under Rule 110, Section 14 and Rule
119, Section 19 of the Revised Rules on Criminal
Procedure. To be sure, the crime is properly
designated as one of theft. The purpose of the
amendment is simply to ensure that the accused is
fully and sufficiently apprised of the nature and cause
of the charge against him, and thus guaranteed of his
rights under the Constitution. (Emphasis supplied)
In Laurel, we reviewed the existing laws and
jurisprudence on the generally accepted concept of
personal property in civil law as "anything susceptible
of appropriation."50 It includes ownership of telephone
services, which are protected by the penal provisions
on theft. We therein upheld the Amended
Information charging the petitioner with the crime of
theft against PLDT inasmuch as the allegation was that
the former was engaged in international simple resale
(ISR) or "the unauthorized routing and completing of
international long distance calls using lines, cables,
antennae, and/or air wave frequency and connecting
these calls directly to the local or domestic exchange
facilities of the country where destined."51 We
reasoned that since PLDT encodes, augments,
enhances, decodes and transmits telephone calls using
its complex communications infrastructure and
facilities, the use of these communications facilities
without its consent constitutes theft, which is the
unlawful taking of telephone services and business.
We then concluded that the business of providing
telecommunications and telephone services is
personal property under Article 308 of the Revised
Penal Code, and that the act of engaging in ISR is an
act of "subtraction" penalized under said article.
Furthermore, toll bypass operations could not have
been accomplished without the installation of
telecommunications equipment to the PLDT
telephone lines. Thus, petitioners may also be held
liable for violation of P.D. 401, to wit:
Section 1. Any person who installs any water,
electrical, telephone or piped gas connection without
previous authority from the Metropolitan
Waterworks and Sewerage System, the Manila
Electric Company, the Philippine Long Distance
Telephone Company , or the Manila Gas Corporation,
as the case may be, tampers and/or uses tampered
water, electrical or gas meters, jumpers or other
devices whereby water, electricity or piped gas is
stolen; steals or pilfers water, electric or piped gas
meters, or water, electric and/or telephone wires, or
piped gas pipes or conduits; knowingly possesses
stolen or pilfered water, electrical or gas meters as well
as stolen or pilfered water, electrical and/or telephone
wires, or piped gas pipes and conduits, shall, upon
conviction, be punished with prision correccional in
its minimum period or a fine ranging from two
thousand to six thousand pesos, or both . (Emphasis
supplied)
The peculiar circumstances attending the situation
compel us to rule further on the matter of probable
cause. During the hearing of the motions to quash the
search warrants, the test calls conducted by witnesses
for PLDT were shown to have connected to the IGF of
either Eastern or Capwire to complete the
international calls.
A trial judge’s finding of probable cause may be set
aside and the search warrant issued by him based on
his finding may be quashed if the person against whom
the warrant is issued presents clear and convincing
evidence that when the police officers and witnesses
testified, they committed a deliberate falsehood or
reckless disregard for the truth on matters that are
essential or necessary to a showing of probable
cause.52 In that case, the finding of probable cause is a
nullity, because the trial judge was intentionally
misled by the witnesses.53
On the other hand, innocent and negligent omissions
or misrepresentation of witnesses will not cause the
quashal of a search warrant.54 In this case, the
testimonies of Rivera and Gali that the test calls they
conducted did not pass through PLDT’s IGF are true.
They neglected, however, to look into the possibility
that the test calls may have passed through other IGFs
in the Philippines, which was exactly what happened.
Nevertheless, the witnesses did not commit a
deliberate falsehood. Even Planet Internet stated that
the conclusion that the test calls bypassed all IGFs in
the country was made "carelessly and haphazardly."55
On this score, the quashal of the search warrants is not
in order. It must be noted that the trial judge did not
quash the warrants in this case based on lack of
probable cause. Instead, the issue before us is whether
the CA erred in reversing the RTC, which ruled that
the search warrants are general warrants.
III.
The requirement of particularity in the description of
things to
be seized is fulfilled when the items described in the
search
warrant bear a direct relation to the offense for which
the
warrant is sought.
Petitioners claim that the subject search warrants
were in the nature of general warrants because the
descriptions therein of the objects to be seized are so
broad and all-encompassing as to give the
implementing officers wide discretion over which
articles to seize. In fact, the CA observed that the
targets of the search warrants were not illegal per se,
and that they were "innocuous goods." Thus, the police
officers were given blanket authority to determine
whether the objects were legal or not, as in fact even
pieces of computer equipment not involved in
telecommunications or Internet service were
confiscated.
On the other hand, PLDT claims that a search warrant
already fulfills the requirement of particularity of
description when it is as specific as the circumstances
will ordinarily allow.56 Furthermore, it cites Kho v.
Makalintal,57 in which the Court allowed leeway in
the description of things to be seized, taking into
consideration the effort and the time element involved
in the prosecution of criminal cases.
The Office of the Solicitor General (OSG), in its
Comment58 filed with the CA, likewise prayed for the
reversal of the quashal of the search warrants in view
of the OSG’s position that the scheme was a case of
electronic theft, and that the items sought to be seized
could not be described with calibrated precision.
According to the OSG, assuming that the seized items
could also be used for other legitimate businesses, the
fact remains that the items were used in the
commission of an offense.
A general warrant is defined as "(a) search or arrest
warrant that is not particular as to the person to be
arrested or the property to be seized."59 It is one that
allows the "seizure of one thing under a warrant
describing another" and gives the officer executing the
warrant the discretion over which items to take.60
Such discretion is abhorrent, as it makes the person,
against whom the warrant is issued, vulnerable to
abuses.1âwphi1Our Constitution guarantees our right
against unreasonable searches and seizures, and
safeguards have been put in place to ensure that people
and their properties are searched only for the most
compelling and lawful reasons.
Section 2, Article III of the 1987 Constitution
provides:
Sec. 2. The right of the people to be secure in their
persons, houses, papers and effects against
unreasonable searches and seizures of whatever nature
and for any purpose shall be inviolable, and no such
search warrant or warrant of arrest shall issue except
upon probable cause to be determined personally by
the judge after examination under oath or affirmation
of the complainant and the witnesses he may produce,
and particularly describing the place to be searched
and the persons or things to be seized.In furtherance
of this constitutional provision, Sections 3 and 4, Rule
126 of the Rules of Court, amplify the rules regarding
the following places and items to be searched under a
search warrant:
SEC. 3. Personal property to be seized. — A search
warrant may be issued for the search and seizure of
personal property:
 a) Subject of the offense;
b) Stolen or embezzled and other proceeds, or
fruits of the offense; or
c) Used or intended to be used as the means of
committing an offense.
SEC. 4. Requisites for issuing search warrant. — A
search warrant shall not issue except upon probable
cause in connection with one specific offense to be
determined personally by the judge after examination
under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing
the place to be searched and the things to be seized
which may be anywhere in the Philippines.
Within the context of the above legal requirements for
valid search warrants, the Court has been mindful of
the difficulty faced by law enforcement officers in
describing the items to be searched, especially when
these items are technical in nature, and when the
extent of the illegal operation is largely unknown to
them. Vallejo v. Court of Appeals61 ruled as follows:
The things to be seized must be described with
particularity. Technical precision of description is not
required. It is only necessary that there be reasonable
particularity and certainty as to the identity of the
property to be searched for and seized, so that the
warrant shall not be a mere roving commission.
Indeed, the law does not require that the things to be
seized must be described in precise and minute detail
as to leave no room for doubt on the part of the
searching authorities. If this were the rule, it would be
virtually impossible for the applicants to obtain a
warrant as they would not know exactly what kind of
things to look for. Any description of the place or
thing to be searched that will enable the officer
making the search with reasonable certainty to locate
such place or thing is sufficient. (Emphasis supplied)
Furthermore, the Court also had occasion to rule that
the particularity of the description of the place to be
searched and the things to be seized is required
"wherever and whenever it is feasible."62 A search
warrant need not describe the items to be seized in
precise and minute detail.63 The warrant is valid when
it enables the police officers to readily identify the
properties to be seized and leaves them with no
discretion regarding the articles to be seized.64
In this case, considering that items that looked like
"innocuous goods" were being used to pursue an illegal
operation that amounts to theft, law enforcement
officers would be hard put to secure a search warrant
if they were required to pinpoint items with one
hundred percent precision. In
People v. Veloso, we pronounced that "[t]he police
should not be hindered in the performance of their
duties, which are difficult enough of performance
under the best of conditions, by superficial adherence
to technicality or far-fetched judicial interference."65
A search warrant fulfills the requirement of
particularity in the description of the things to be
seized when the things described are limited to those
that bear a direct relation to the offense for which the
warrant is being issued.66
To our mind, PLDT was able to establish the
connection between the items to be searched as
identified in the warrants and the crime of theft of its
telephone services and business. Prior to the
application for the search warrants, Rivera conducted
ocular inspection of the premises of petitioners a d was
then able to confirm that they had utilized various
telecommunications equipment consisting of
computers, lines, cables, antennas, modems, or
routers, multiplexers, PABX or switching equipment,
a d support equipment such as software, diskettes,
tapes, manuals and other documentary records to
support the illegal toll bypass operations."67
In HPS Software and Communication Corp. v.
PLDT,68 we upheld a s milady worded69 description of
items to be seized by virtue of the search warrants,
because these items had been sufficiently identified
physically and s own to bear a relation to the offenses
charged. WHEREFORE, the petitions are DENIED.
The Court of Appeals decision dated 20 August 2003
and Resolution dated 27 November 2003 in CA-G.R.
CR No. 26190 are AFFIRMED.
SO ORDERED.
MARIA LOURDES P. A. SERENO
Chief Justice, Chairperson
WE CONCUR:
TERESITA J. LEONARDO-DE CASTRO
Associate Justice
MARTIN S.
LUCAS P. BERSAMIN
VILLARAMA, JR.
Associate Justice
Associate Justice

BIENVENIDO L. REYES
Associate Justice
CERTIFICATION
Pursuant to Section 13, Article VIII of the
Constitution, I certify that the conclusions in the
above Decision had been reached in consultation
before the case was assigned to the writer of the
opinion of the Court's Division.
MARIA LOURDES P. A. SERENO
Chief Justice
QUALIFIED THEFT

23. People vs. Bañaga, GR No. 183699, Nov. 24, 2010

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 183699 November 24, 2010
PEOPLE OF THE PHILIPPINES, Appellee,
vs.
ROSALIE COLILAP BAÑAGA, Appellant.
DECISION
CARPIO MORALES, J.:
Rosalie Colilap Bañaga (appellant) assails the January
22, 2008 Decision of the Court of Appeals1 affirming
with modification that of the Regional Trial Court of
Lingayen, Pangasinan, Branch 69 which convicted her
of Qualified Theft in eight cases – Criminal Case Nos.
L-6503, L-6504, L-6510, L-6511, L-6512, L-6513, L-
6514 and L-6515.
Appellant was actually charged with 16 counts of
Qualified Theft, Criminal Case Nos. L-6503 up to L-
6517. The Information in the first case, Criminal Case
No. L-6503, reads:
xxxx
That in the month of January, 1999 in the municipality
of Mangatarem, Pangasinan, Philippines and within
the jurisdiction of this Honorable Court, the above-
named accused, with intent to gain and with grave
abuse of confidence, being then an employee of
complainants Perfecto B. Velasquez, Jr. and Petrocenia
B. Velasquez in the latter’s establishment named St.
John Memorial Park and also of the Lisondra Land,
Inc., a land developer both located in Mangatarem,
Pangasinan, did then and there willfully, unlawfully
and feloniously take, carry away, convert and
misappropriate for her own use and benefit the case
amounts totaling One Hundred Thousand Six
Hundred Eight and 39/100 Pesos (P106,608.39) (sic)
which were handed to and received by her as such
employee with the assigned duty to deposit
immediately the said amounts to the corresponding
bank book accounts opened/maintained by the
complainants pertaining to their share as landowner’s
fund and the share for the perpetual care fund of said
St. John Memorial Park with the Rural Bank of Anda,
(Pangasinan), Inc., Mangatarem Branch, to the
damage and prejudice of the said complainants.
Contrary to Articles 309 & 310 of the Revised Penal
Code.2
xxxx
The 15 other Informations are similarly worded except
with respect to the dates of commission and amounts
involved.
The brothers Jude B. Velasquez and Perfecto B.
Velasquez, Jr., as landowners, entered into a joint
venture agreement (the agreement) with Lisondra
Land, Inc. (Lisondra Land) to develop a memorial
park, to be named St. John Memorial Park and Garden
(St. John). The landowners agreed to provide the
parcel of land to be developed and the lots to be sold
by Lisondra Land,3 the gross sales to be shared by them
– 45% to the landowners and 55% to Lisondra Land.
The parties to the agreement further agreed to put up
a Perpetual Care Plan to serve as trust fund for the
maintenance and upkeep of the lots, to be generated
from payments collected from lot buyers.
St. John was in fact developed and went into full
operation in January 1999. Lisondra Land employed
John Barbo (Barbo) and Lani Ramirez (Lani) as branch
managers, Rowena Pabros (Rowena) as marketing
manager, and appellant as secretary.4
The landowners entrusted to appellant the
responsibility of receiving their share in the gross sales
of the lots; to Lani the responsibility of receiving their
share from the Perpetual Care Plan; and still to
appellant the responsibility of depositing their share at
the Rural Bank of Anda (the Bank), Mangatarem
Branch, Pangasinan where they maintained two
accounts – the landowners’ share and the perpetual
care fund (the fund).
Petrocenia B. Velasquez (Petrocenia), mother of the
landowners and designated representative of one of
them (Jude), was in charge of overseeing their bank
accounts. She noticed that there were no deposits to
the landowners’ share for December 1999, while there
were only partial deposits for the other months of
1999; and that appellant did not deposit ₱95,193.65 to
the landowners’ share account and ₱110,828.79 to the
fund from January 1999 to April 2000.
Denying the accusations, applellant claimed that
while she affixed her signature on some of the petty
cash vouchers acknowledging receipt of some
amounts, her signatures on the weekly remittances
were forged by Lani.5
Petrocenia countered, however, that appellant,
together with her husband, had admitted having
appropriated the questioned amounts and that she in
fact promised to reimburse them6 but failed to.
By Decision of June 25, 2003, the trial court convicted
appellant in the already specified eight cases but
acquitted her in the other eight cases, disposing as
follows:
WHEREFORE, in view of the foregoing premises,
judgment is hereby rendered finding the accused
ROSALIE COLLILAP [sic] BAÑAGA, guilty beyond
reasonable doubt of the crime of Qualified Theft in
Crim. Cases Nos. L-6503, L-6504, L-6510, L-6511, L-
6512, L-6513, L-6514 and L-6515.7
Accordingly, the accused is hereby sentenced to suffer:
1. Crim. Case No. L-6503, the penalty of 27 years
of Reclusion Perpetua, and, to pay the
complainants the sum of P80,973.35 which is the
amount she misappropriated;
2. Crim. Case No. L-6504, the penalty of 10 years
and 1 day of Prision Mayor as minimum to 14 years
8 mos. and 1 day of Reclusion Temporal as
maximum, and, to pay the complainants the sum
of P16,139.98 which is the amount unlawfully
taken by her;
3. Crim. Case No. L-6510, the penalty of 4 years, 2
mos. and 1 day of Prision Correctional as minimum
to 8 years and 1 day of Prision Mayor as maximum,
and, to pay the complainants the sum of P2,607.82
which is the amount unlawfully taken by the
accused;
4. Crim. Case No. L-6511, the penalty of 10 years
and 1 day of Prision Mayor as minimum to 14 years
8 mos. and 1 day of Reclusion Temporal as
maximum;
5. Crim. Case No. L-6512, the penalty of 14 years,
8 mos. of Reclusion Temporal as minimum to 20
years of Reclusion Temporal as maximum, and, to
pay the complainants the sum of P23,108.21 which
is the amount stolen by her;
6. Crim. Case No. L-6513, the penalty of 6 years
and 1 day of Prision Mayor as minimum to 10 years
and 1 day of Prision Mayor as maximum, and, to
pay the complainants the sum of P6,934.19 which
is the amount unlawfully taken by her;
 7. Crim. Case No. L-6514, the penalty of 29 years
of Reclusion Perpetua, and, to pay the
complainants the sum of P101,851.67 which is the
amount unlawfully taken by her;
8. Crim. Case No. L-6515 the penalty of 6 years and
1 day of Prision Mayor as minimum to 10 years of
Prision Mayor as maximum, and, to pay the
complainants the sum of P7,503.04 the amount
stolen by her.
The accused is also ordered to pay the costs in the
aforementioned cases
On the other hand, on the grounds of reasonable doubt
the accused is hereby ACQUITTED in Crim. Cases
Nos. L-6505, L-6506, L-6507, L-6508, L-6509, L-6516,
L-6517 and L-6518.
No costs.
SO ORDERED.
As stated early on, the Court of Appeals affirmed the
trial court’s decision with modification on the
penalties imposed, consistent with the proper
application of the Indeterminate Sentence Law. Thus
the appellate court disposed:
WHEREFORE, in view of the foregoing, the assailed
decision is hereby MODIFIED, in that appellant is
hereby sentenced to suffer:
1. In Crim. Case No. L-6503, the penalty of 11
years, 4 months and 1 day of prision mayor
maximum, as minimum penalty to 18 years, 8
months and 1 day of reclusion temporal maximum
as maximum penalty.
2. In Crim. Case No. L-6504, the penalty of 10 years
and 1 day of prision mayor maximum as minimum
penalty to 16 years, 5 months and 11 days of
reclusion temporal medium as maximum penalty.
3. In Crim. Case No. L-6510, the penalty of 4 years,
2 months and 1 day of prision correctional
maximum as minimum penalty to 9 years, 4
months and 1 day of prision mayor medium as
maximum penalty.
4. In Crim. Case No. L-6511, the penalty of 10 years
and 1 day of prision mayor maximum as minimum
penalty to 16 years, 5 months and 11 days of
reclusion temporal medium as maximum penalty.
5. In Crim. Case No. L-6512, the penalty of 10 years
and 1 day of prision mayor maximum as minimum
penalty to 16 years, 5 months and 11 days of
reclusion temporal medium as maximum penalty.
6. In Crim. Case No. L-6513, the penalty of 8 years,
8 months and 1 day of prision mayor medium as
minimum penalty to 13 years, 1 month and 10 days
of reclusion temporal minimum as maximum
penalty.
7. In Crim. Case No. L-6514, the penalty of
reclusion perpetua.
8. In Crim. Case No. L-6515, the penalty of 7 years,
4 months and 1 day of prision mayor minimum as
minimum penalty to 13 years, 1 month and 10 days
of reclusion temporal minimum as maximum
penalty.
The assailed decision is hereby affirmed in all other
aspects.
SO ORDERED.
Hence, the present petition.
Appellant faults the appellate court in affirming the
trial court’s crediting of the testimony of prosecution
witness accountant Araceli Cruz (Araceli).
The petition fails.
The testimony given by Araceli who conducted an
audit of the accounts of the landowners is supported
by documentary evidence. This was not rebutted by
appellant. In fact, her counsel stipulated that the
pertinent data stated in Araceli’s audit report refer to
the monthly deficiencies in the amounts to be
deposited to the landowners’ accounts.8
Respecting appellant’s imputation to Lani of forgery of
her signature in the petty cash vouchers showing that
she received the questioned amounts, the same fails.
For a rubber stamp of her printed name and of her
position as Secretary was especially procured for her
to be stamped on the petty cash vouchers "so nobody
could forge [her] signature."9 Consider her testimony
below which shows that forgery could not have taken
place.
Atty. Perez [to appellant]:
Q So Madam Witness, the rubber stamp [appearing on
the petty cash vouchers] was in your sole possession
and nobody could get it, is it not?
A It’s true, sir.
Q So Madam Witness, all these transactions in petty
cash vouchers bearing the rubber stamp, are in fact
transactions in which you personally received the
money, is it not?
A Yes, sir. 10 (emphasis and underscoring supplied)
Verily, the position held by appellant in St. John, and
the special assignment given to her by the land
owners, were vested with trust and
confidence.1awphil She had custody of two bank
books in which deposits of what she received were to
be reflected. Her failure to account for the subject
funds which she was under obligation to deposit
constitutes asportation with intent of gain, committed
with grave abuse of the confidence reposed on her.
The appellate court’s affirmance of her guilt for
qualified theft must thus be upheld. And so must its
modification of the penalties imposed by the trial
court.
WHEREFORE, the appeal is DISMISSED. The assailed
Decision of the Court of Appeals in CA-G.R. CR-H.C.
No. 00134 is AFFIRMED.
SO ORDERED.
CONCHITA CARPIO MORALES
Associate Justice
WE CONCUR:

DIOSDADO M.
ARTURO D. BRION
PERALTA*
Associate Justice
Associate Justice
 MARIA LOURDES
LUCAS P. BERSAMIN
P.A. SERENO
Associate Justice
Associate Justice

ATTESTATION
I attest that the conclusions in the above Decision
were reached in consultation before the case was
assigned to the writer of the opinion of the Court’s
Division.
CONCHITA CARPIO MORALES
Chairperson
CERTIFICATION
Pursuant to Section 13, Article VIII of the
Constitution, and the Division Chairperson’s
Attestation, I certify that the conclusions in the above
Decision had been reached in consultation before the
case was assigned to the writer of the opinion of the
Court’s Division.
RENATO C. CORONA
Chief Justice
24. People vs. Bernard Mirto, GR No. 193479, Oct. 19,
2011

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 193479 October 19, 2011
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs.
BERNARD G. MIRTO, Accused-Appellant.
DECISION
VELASCO, JR., J.:
The Case
This is an appeal from the Decision1 dated August 24,
2009 of the Court of Appeals (CA) in CA-G.R. CR-H.C.
No. 03444, which affirmed the March 24, 2008
Decision2 in Criminal Case Nos. 9034, 9115, 9117 and
9130 of the Regional Trial Court (RTC), Branch 5 in
Tuguegarao City, Cagayan. The RTC found accused
Bernard G. Mirto guilty beyond reasonable doubt of
the crime of Qualified Theft.
The Facts
Seven Informations for Qualified Theft were filed
against the accused, docketed as Criminal Case Nos.
9034, 9115, 9117, 9120, 9123, 9126, and 9130. The
Informations similarly show how the offenses were
allegedly committed, differing only as to the dates of
the commission, the number of bags of cement
involved, the particulars of the checks paid by the
cement purchasers, the amounts involved, and the
depositary accounts used by accused. The Information
for Criminal Case No. 9034 indicted accused, thus:
The undersigned City Prosecutor of Tuguegarao City
accuses BERNARD G. MIRTO of the crime of
QUALIFIED THEFT, defined and penalized under
Article 310, in relation to Articles 308 and 309 of the
Revised Penal Code, committed as follows:
That on June 21, 2001, in the City of Tuguegarao,
Province of Cagayan and within the jurisdiction of this
Honorable Court, said accused BERNARD G. MIRTO,
being the Branch Manager of UCC-Isabela
(Tuguegarao Area), with intent to gain but without
violence against or intimidation of persons nor force
upon things, did then and there willfully, unlawfully
and feloniously, with grave abuse of confidence and
without the consent and knowledge of complainant,
UNION CEMENT CORPORATION, a duly organized
Corporation operating under existing laws,
represented by REYNALDO S. SANTOS, Assistant
Vice President – Marketing/North Luzon, whose
business address is located at 5th Floor Kalayaan
Building, 164 Salcedo Street, Makati, Metro Manila,
take, steal and deposit into his personal Security Bank
& Trust Co. (Tuguegarao Branch) Account No.
0301261982001, the proceeds of 4,600 bags of Portland
cement, owned by herein complainant-Corporation,
paid to him by the Philippine Lumber located at
Bonifacio Street, this City, in the form of Checks,
namely: METROBANK CHECK NOS. 103214898 and
1032214896, for P67,000.00 & P241,200.00,
respectively, in the total amount of P308,200.00,
which accused is obligated to convey to the
complainant-Union Cement Corporation represented
by its Vice-President-Marketing, REYNALDO S.
SANTOS, to its loss, damage and prejudice, in the
aforesaid amount of THREE HUNDRED EIGHT
THOUSAND TWO HUNDRED PESOS, (P308,200.00)
Philippine Currency.
Contrary to law.3
To summarize, the seven Informations showed the
following details:

Dat Ce Che
Cri e of me Amo cks Total
min off nt Check unt depo Amou
al ens bag Purchase paym (PhP sited nt
Case e s r/Buyers ents ) In (PhP)
Jun SBT
e MBT C
21, Philippi C 0301
903 200 4,6 ne 10321 67,00 -
4 1 00 Lumber 4898 0.00 2619
 82-
001
SBT
C
0301
MBT -
C 2619
10322 241,2 82- 308,2
14896 00.00 001 00.00
SBT
C
Ma 0301
y MBT -
25, 4,7 Philippi C 2619
911 200 50 ne 10302 116,0 82-
5 1 out Lumber 14835 00.00 001
SBT
MBT C
of C 0301
5,8 10302 116,0 -
50 14833 00.00 2619
 82-
001
SBT
C
0301
MBT -
C 2619
10302 116,0 82-
14836 00.00 001
SBT
C
0301
MBT -
C 2619
10302 79,75 82-
14834 0.00 001
MB
MBT TC
C 124-
10302 58,00 5
14849 0.00 [Ma
 gno
Lim]
MB
TC
124-
MBT 5
C [Ma
10302 87,00 gno
14848 0.00 Lim]
MB
TC
124-
MBT 5
C [Ma
10302 116,0 gno 688,7
14847 00.00 Lim] 50.00
Ma SBT
y C
22, Mapalo PNB 0301
911 200 9,9 Truckin 00156 616,1 -
7 1 50 g 59 00.00 2619
 82-
001
SBT
C
0301
-
PNB 2619 1,213,
00156 597,8 82- 900.0
61 00.00 001 0
MB
TC
900 124-
Jun out MBT 5
e 6, of Alonzo C [Ma
912 200 5,1 Truckin 11401 113,4 gno 113,4
0 1 00 g 71726 00.00 Lim] 00.00
Jun
e 2,7
22, 00 Mapalo [no [no
912 200 out Truckin detail 123,3 deta
3 1 of g s] 00.00 ils]
 7,1
00
[no [no
detail 246,6 deta 369,9
s] 00.00 ils] 00.00
EPC
1,8 IB
Jun 00 7182
e out MBT 0-8
19, of Alonzo C [Ma
912 200 7,1 Truckin 11407 244,8 gno 244,8
6 1 00 g 1731 00.00 Lim] 00.00
SBT
C
Jun 0301
e Rommel -
27, eens DBP 2619
913 200 Enterpri 00001 68,50 82- 68,50
0 1 500 ses 55348 0.00 001 0.00
Per records,4 the accused was branch manager of
Union Cement Corporation (UCC) for the Tuguegarao
City area. At the UCC office in Isabela, he shared an
office room with Restituto P. Renolo, Branch Manager
for the province. On June 29, 2001, at about noon, the
accused confided to Renolo that he had
misappropriated company funds. Renolo advised him
to explain his misdeeds in writing to Assistant Vice-
President and Head of UCC-North Luzon Reynaldo S.
Santos (AVP Santos).
Later that day, at about 5:00 p.m., the accused told
Renolo that he would be going to Tuguegarao City.
Just before Renolo left the office, he saw on the
accused’s table a piece of partly-folded paper, which
turned out to be a handwritten letter of the accused to
AVP Santos, in which he admitted taking company
funds and enumerated the particular accounts and
amounts involved. Renolo took the letter home, read
it over the phone to AVP Santos at about 7:00 p.m.,
and faxed it to AVP Santos the following day.
AVP Santos, in turn, sent a copy of the letter to the top
management of UCC, which then instructed the
Group Internal Audit of the Phinma Group of
Companies to conduct a special audit of the UCC-
Tuguegarao City Branch. Antonio M. Dumalian, AVP
and Head of the Group Internal Audit, organized the
audit team composed of Onisimo Prado, as head, with
Emmanuel R. Reamico, Adeodato M. Logronio, and
Glenn Agustin, as members.
The audit team conducted the special audit of the
UCC-Tuguegarao City Branch from July 3 to July 25,
2001. They interviewed several cement
buyers/dealers, among them Wilma Invierno of
Rommeleen’s Enterprises, Arthur Alonzo of Alonzo
Trucking, Robert Cokee of Philippine Lumber, and
Russel Morales of Mapalo Trucking. All four executed
affidavits attesting that UCC cement bags were sold
directly to them instead of to dealers with credit lines
and that, as payment, they issued "Pay to Cash" checks
pursuant to the instruction of the accused.
AVP Santos and Dr. Francis Felizardo, Senior Vice-
President (SVP) and Head of the Marketing Group of
UCC, met with the accused at the UCC Sales Office in
Poro Point, San Fernando City, La Union. In that
meeting, the accused admitted misusing company
money, but pleaded to them not to terminate him as
he was willing to pay back the amount from his salary
on installment. He also asked them not to file charges
against him.
In a Report dated August 8, 2001, the Group Internal
Audit confirmed the veracity of the June 29, 2001
handwritten admission letter of the accused and his
July 20, 2001 Certification enumerating the names of
the specific bank accounts, specific bank holders, and
the banks wherein he had deposited the funds of UCC-
Tuguegarao City Branch. It appeared that the total
unremitted collections of the accused from May 25,
2001 to June 23, 2001 amounted to PhP 6,572,750.
UCC found that the accused gravely abused the trust
and confidence reposed on him as Branch Manager
and violated company policies, rules, and regulations.
Specifically, he used the credit line of accredited
dealers in favor of persons who either had no credit
lines or had exhausted their credit lines. He diverted
cement bags from the company’s Norzagaray Plant or
La Union Plant to truckers who would buy cement for
profit. In these transactions, he instructed the
customers that payments be made in the form of "Pay
to Cash" checks, for which he did not issue any
receipts. He did not remit the checks but these were
either encashed or deposited to his personal bank
account at Security Bank & Trust Co. (SBTC)-
Tuguegarao City Branch with Account No. 0301-
261982-001 or to the accounts of a certain Magno Lim
at MetroBank and Equitable PCIBank, both in
Tuguegarao City. Conchito Dayrit, Customer Service
Officer and Representative of SBTC-Tuguegarao City,
confirmed the findings of the UCC internal auditors
through the accused’s Statement of Account showing
the various checks deposited to his account, and which
subsequently cleared.
Upon arraignment on August 6, 2002, the accused
entered a plea of "not guilty" to the seven separate
charges of qualified theft.5 Trial on the merits ensued.
The Ruling of the RTC
On March 24, 2008, the RTC rendered its Decision,
acquitting the accused in Criminal Case Nos. 9120,
9123, and 9126, but finding him guilty beyond
reasonable doubt of committing Qualified Theft in
Criminal Case Nos. 9034, 9115, 9117, and 9130. The
dispositive portion reads:
WHEREFORE, premises considered, the Court
renders judgment thus:
1. In Criminal Case No. 9034: finding the accused
GUILTY BEYOND REASONABLE DOUBT of the
crime of qualified theft;
2. In Criminal Case No. 9115: finding the accused
GUILTY BEYOND REASONABLE DOUBT of the
crime of qualified theft;
 3. In Criminal Case No. 9117: finding the accused
GUILTY BEYOND REASONABLE DOUBT of the
crime of qualified theft;
4. In Criminal Case No. 9120: finding the accused
NOT GUILTY, as there is no showing how he
profited from deposits he made to the account of
Mr. Magno Lim;
5. In Criminal Case No. 9123: finding the accused
NOT GUILTY by reason of insufficiency of
evidence;
6. In Criminal Case No. 9126: finding the accused
NOT GUILTY BEYOND REASONABLE DOUBT
of the crime of qualified theft;
7. In Criminal Case No. 9130: finding the accused
GUILTY BEYOND REASONABLE DOUBT of the
crime of qualified theft.
In view of the foregoing, in the imposition of the
penalties upon the accused, this Court is guided by the
following doctrinal pronouncement of the Supreme
Court in People v. [Mercado], G.R. No. 143676,
February 12, 2003:
"Appellant asserts that the trial court erred in applying
the proper penalty. As reasoned by appellant, the
penalty for Qualified Theft under Article 310 of the
Revised Penal Code is prision mayor in its minimum
and medium periods, raised by two degrees. Hence,
the penalty high by two degrees should be reclusion
temporal in its medium and maximum periods and not
reclusion perpetua as imposed by the trial court. Being
a divisible penalty, the Indeterminate Sentence Law
could then be applied.
On the other hand, [appellee] cites the cases of People
v. Reynaldo Bago and People v. Cresencia C. Reyes to
show that the trial court properly imposed the penalty
of reclusion perpetua.
We agree with the appellee that the trial court
imposed the proper penalty."
In accordance with the doctrine laid down in People
v. Mercado, the accused is hereby sentenced to suffer
the penalty of RECLUSION PERPETUA. Accused is
ordered to restitute the private complainant the total
amount of TWO MILLION TWO HUNDRED
SEVENTY NINE THOUSAND THREE HUNDRED
FIFTY PESOS (Php 2,279,350.00) covering the
amount represented by the checks involved in these
cases.
Set the promulgation of this Decision on 15 April 2008,
at 8:30 o’clock in the morning.
SO ORDERED.6
In convicting the accused, the RTC relied on his
admission when he testified on February 15, 2007 and
his Memorandum of the fact of his having deposited
the checks payments from UCC cement sales in his
personal account with SBTC, Tuguegarao City Branch.
Contrary to the accused’s argument, the RTC found
that he did not hold his collections in trust for UCC,
since he was never authorized by UCC to retain and
deposit checks, as testified to by AVP Santos.
Moreover, the RTC found fatal to accused’s defense his
handwritten letter, dated June 29, 2001, addressed to
AVP Santos, which reads in part, "Sir, I regret to say
that a total amount of PhP 6,380,650.00 was misused
by me for various reasons,"7 which the accused
admitted to in open court during his testimony on
February 15, 2007.
Aggrieved, accused appealed his conviction before the
CA.
The Ruling of the CA
On August 24, 2009, the appellate court rendered the
appealed decision, affirming the findings of the RTC
and the conviction of accused-appellant.
The fallo reads:
WHEREFORE, premises considered, the Decision of
the Regional Trial Court of Tuguegarao City, Cagayan,
Branch 5, in Criminal Case Nos. 9034, 9115, 9117 and
9130, dated March 24, 2008 and promulgated on April
15, 2008, finding accused-appellant guilty beyond
reasonable doubt of the crime of Qualified Theft is
hereby AFFIRMED and UPHELD.
With costs against the accused-appellant.
SO ORDERED.8
Accused-appellant argued that, first, the Informations
indicting him for Qualified Theft did not adequately
inform him of the nature of the offense charged
against him; and second, he had juridical possession of
the subject checks, not merely material possession;
hence, the qualifying circumstance of "grave abuse of
confidence" cannot be appreciated against him.
The CA, however, found that accused-appellant only
had material possession of the checks and not juridical
possession9 as these checks payments were made to
UCC by its customers and accused-appellant had no
right or title to possess or retain them as against UCC.
The fact that accused-appellant was obliged, as per
company policy, to immediately turn over to UCC the
payments he received from UCC customers was
attested to by the prosecution witness, UCC Branch
Manager Renolo. Thus, the CA concluded that there
was neither a principal-agent relationship between
UCC and accused-appellant nor was accused-appellant
allowed to open a personal account where UCC funds
would be deposited and held in trust for UCC.
Hence, We have this appeal.
The Office of the Solicitor General, representing the
People of the Philippines, submitted a Manifestation
and Motion,10 opting not to file any supplemental
brief, there being no new issues raised nor
supervening events transpired. Accused-appellant
manifested also not to file a supplemental brief.11 Thus,
in resolving the instant appeal, We consider the sole
issue and arguments accused-appellant earlier raised
in his Brief for the Accused-Appellant before the CA.
Accused-appellant raises the same sole assignment of
error already passed upon and resolved by the CA, in
that "THE TRIAL COURT ERRED IN CONCLUDING
THAT, BASED ON THE EVIDENCE, THE ACCUSED
IS GUILTY OF QUALIFIED THEFT."12
The Court’s Ruling
The appeal is bereft of merit.
Accused-appellant argues that the prosecution failed:
(a) To establish that he had material possession of
the funds in question;
 (b) To refute the authority given to him by UCC;
(c) To establish the element of "taking" under Art.
308 of the Revised Penal Code (RPC);
(d) To establish that the funds were taken without
the consent and knowledge of UCC;
(e) To establish the element of "personal property"
under Art. 308 of the RPC; and
(f) To establish, in sum, the ultimate facts
constitutive of the crime of Qualified Theft under
Art. 310, in relation to Art. 308, of the RPC.
For being closely related, We will discuss together the
arguments thus raised.
Article 308 of the Revised Penal Code (RPC), which
defines Theft, provides:
ART. 308. Who are liable for theft.—Theft is
committed by any person who, with intent to gain but
without violence, against, or intimidation of persons
nor force upon things, shall take personal property of
another without the latter’s consent.
Theft is likewise committed by:
1. Any person who, having found lost property,
shall fail to deliver the same to the local authorities
or to its owner;
2. Any person who, after having maliciously
damaged the property of another, shall remove or
make use of the fruits or objects of the damage
caused by him; and
3. Any person who shall enter an enclosed estate
or a field where trespass is forbidden or which
belongs to another and without the consent of its
owner, shall hunt or fish upon the same or shall
gather fruits, cereals, or other forest or farm
products.
Thus, the elements of the crime of Theft are: (1) there
was a taking of personal property; (2) the property
belongs to another; (3) the taking was without the
consent of the owner; (4) the taking was done with
intent to gain; and (5) the taking was accomplished
without violence or intimidation against the person or
force upon things.13
Theft is qualified under Art. 310 of the RPC, when it
is, among others, committed with grave abuse of
confidence, thus:
ART. 310. Qualified Theft.—The crime of theft shall
be punished by the penalties next higher by two
degrees than those respectively specified in the next
preceding article, if committed by a domestic servant,
or with grave abuse of confidence, or if the property
stolen is motor vehicle, mail matter or large cattle or
consists of coconuts taken from the premises of a
plantation, fish taken from a fishpond or fishery or if
property is taken on the occasion of fire, earthquake,
typhoon, volcanic eruption, or any other calamity,
vehicular accident or civil disturbance. (Emphasis
supplied.)
The elements of Qualified Theft committed with grave
abuse of confidence are as follows:
1. Taking of personal property;
2. That the said property belongs to another;
3. That the said taking be done with intent to gain;
 4. That it be done without the owner’s consent;
5. That it be accomplished without the use of
violence or intimidation against persons, nor of
force upon things;
6. That it be done with grave abuse of
confidence.14 (Emphasis supplied.)
All of the foregoing elements for Qualified Theft are
present in this case.
First. The presence of the first and second elements is
abundantly clear. There can be no quibble that the
fund collections through checks payments—all issued
payable to cash—are personal properties belonging to
UCC. These funds through checks were paid by UCC
clients for the deliveries of cement from UCC. One
with the courts a quo, We will not belabor this point
in the fifth argument raised by accused-appellant.
Second. The third element is likewise abundantly
clear. The collected amounts subject of the instant case
belonged to UCC and not to accused-appellant. When
accused-appellant received them in the form of "Pay
to Cash" checks from UCC customers, he was obliged
to turn them over to UCC for he had no right to retain
them. That he kept the checks and deposited them in
his account and in the accounts of Magno Lim
knowing all the while that these checks and their
proceeds were not his only proves the presence of
unlawful taking.
As the trial court aptly pointed out, accused-
appellant’s theory that he only kept the funds in trust
for UCC with the elaborate explanation that once the
checks cleared in his account then he remits them to
UCC is completely incredulous. For one, accused-
appellant has not adduced evidence that he indeed
remitted the funds once the corresponding checks
were cleared. For another, accused-appellant could
not explain why he deposited some of the checks he
collected in the accounts of Magno Lim in MetroBank
(MBTC Account No. 124-5) and Equitable PCIBank
(EPCIB Account No. 71820-8). Moreover, accused-
appellant’s contention of such alleged management
practice15 is unsupported by any evidence showing
that prior to the events in mid-2001 there was indeed
such a practice of depositing check collections and
remitting the proceeds once the checks
cleared.1avvphi1
Third. The element of intent to gain is amply
established through the affidavit16 of Wilma Invierno
of Rommeleen’s Enterprises, one of UCC’s customers,
who confirmed that she had been sold cement bags
instead of to dealers with credit lines and she was
required by accused-appellant to issue "pay to cash"
checks as payment. The affidavits of Arthur
Alonzo17 of Alonzo Trucking, Robert Cokee18 of
Philippine Lumber, and Russel Morales19 of Mapalo
Trucking similarly attested to the same type of sale and
payment arrangement. In so doing, accused-appellant
facilitated the collection of "pay to cash" checks which
he deposited in his bank account and in the bank
accounts of Magno Lim. Thus, the fourth element of
intent to gain is duly proved.
Fourth. Equally clear and undisputed is the presence
of the fifth element. Accused-appellant admitted
having received these checks and depositing them in
his personal account and in the accounts of Magno
Lim. Thus, the element of taking was accomplished
without the use of violence or intimidation against
persons, nor of force upon things.
Fifth. That UCC never consented to accused-
appellant’s depositing the checks he collected in his or
other accounts is demonstrated by the immediate
action UCC took upon being apprised of the
misappropriation and accused-appellant’s confession
letter. UCC lost no time in forming a special audit
group from the Group Internal Audit of Phinma
Group of Companies. The special audit group
conducted an internal audit from July 3 to 25, 2001
and submitted a Special Audit Report20 dated August
8, 2001, showing that the total unremitted collections
of accused-appellant from the period covering May 25,
2001 through June 23, 2001 amounted to PhP
6,572,750.
AVP Santos and UCC SVP and Head of Marketing
Group Dr. Felizardo met with accused-appellant who
admitted misappropriating company funds. AVP
Santos testified21 in open court on what transpired in
that meeting and accused-appellant’s verbal
admission/confession. And with the findings of the
auditors that not only did accused-appellant
unlawfully take UCC funds but he also committed the
offense of violating company policies, rules, and
regulations, UCC was compelled to file seven criminal
complaints against accused-appellant. This swift and
prompt action undertaken by UCC argues against the
notion that it consented to accused-appellant’s act of
depositing of check proceeds from company sales of
cement products in his account or in the accounts of
Magno Lim.
Sixth. That accused-appellant committed the crime
with grave abuse of confidence is clear. As gathered
from the nature of his position, accused-appellant was
a credit and collection officer of UCC in the Cagayan-
Isabela area. His position entailed a high degree of
confidence, having access to funds collected from UCC
clients. In People v. Sison,22 involving a Branch
Operation Officer of Philippine Commercial
International Bank (PCIB), the Court upheld the
appellant’s conviction of Qualified Theft, holding that
"the management of the PCIB reposed its trust and
confidence in the appellant as its Luneta Branch
Operation Officer, and it was this trust and confidence
which he exploited to enrich himself to the damage
and prejudice of PCIB x x x."23 In People v.
Mercado,24 involving a manager of a jewelry store, the
Court likewise affirmed the appellant’s conviction of
Qualified Theft through grave abuse of confidence.
In the instant case, it is clear how accused-appellant,
as Branch Manager of UCC who was authorized to
receive payments from UCC customers, gravely
abused the trust and confidence reposed upon him by
the management of UCC. Precisely, by using that trust
and confidence, accused-appellant was able to
perpetrate the theft of UCC funds to the grave
prejudice of the latter. To repeat, the resulting report
of UCC’s internal audit showed that accused-appellant
unlawfully took PhP 6,572,750 of UCC’s funds.
The courts a quo’s finding that accused-appellant
admitted misappropriating UCC’s funds through the
appropriation of the subject checks is buttressed by the
testimonies of Renolo and Santos,25 who heard and
understood accused-appellant’s extrajudicial
confession. True enough, they were competent to
testify as to the substance of what they heard from
accused-appellant—his declaration expressly
acknowledging his guilt to the offense—that may be
given in evidence against him.26
That he deposited most of the subject checks in his
account was proved by accused-appellant’s statement
of account with SBTC (Account No. 0301-261982-001)
through the testimony of Conchito Dayrit, the
Customer Service Officer and representative of SBTC-
Tuguegarao City Branch.27
Moreover, accused-appellant issued a written
certification28 dated July 20, 2001, attesting to the fact
of the ownership of the bank accounts where he
deposited the checks he collected from UCC clients,
which reads:
07/20/01
To whom it may concern:
This is to certify that to my knowledge, the owner of
the following bank accounts are as follows:
Bank account Owner
SBC – TUG 0301261982001 B. G. Mirto
MBTC – TUG 124-5 Magno Lim
EPCI – TUG 71320-8 Magno Lim
This certification is issued for whatever purpose it may
serve.
(Sgd.) Bernard G. Mirto 7/20/01
Signature over printed name date
Further, as can be amply gleaned from accused-
appellant’s handwritten admission and duly borne out
by the internal audit team’s findings, he deliberately
used a scheme to perpetrate the theft. This was aptly
pointed out by the CA, which We reproduce for
clarity:
UCC found that accused-appellant gravely abused the
trust and confidence reposed on him as Branch
Manager and violated company policies, rules and
regulations. He did not remit collections from
customers who paid "Pay to Cash" checks. He used the
credit line of accredited dealers in favor of persons who
did not have credit lines or other dealers who had
exhausted their credit line. He diverted cement bags
from Norzagaray Plant or La Union Plant to truckers
who would buy cement for profit. In these
transactions, he instructed dealers that check be made
in the form of "pay to cash". He did not issue them
receipts. The checks were either encashed or deposited
to accused-appellant’s personal account No. 0301-
261982-001 at Security Bank & Trust Co. (SBTC)
Tuguegarao Branch or deposited to the accounts of a
certain Mr. Magno Lim maintained at MetroBank and
EquitablePCIBank, both located at Tuguegarao
City.29 (Emphasis supplied.)
It is, thus, clear that accused-appellant committed
Qualified Theft. And as duly pointed out above, even
considering the absence of the handwritten
extrajudicial admission of accused-appellant, there is
more than sufficient evidence adduced by the
prosecution to uphold his conviction. As aptly pointed
out by the trial court, the prosecution has established
the following:
1. That checks of various customers of UCC were
written out as bearer instruments. Payments in
cash were also made.
2. These were received by the accused Mirto who
deposited them in his personal account as well as
in the account of Mr. Magno Lim.
3. The monies represented by the checks and the
case payments were consideration for bags of
cement purchased from the UCC, the
complainant-corporation.
4. The accused Mirto was never authorized nor was
it part of his duties as branch manager to deposit
these proceeds in his account or in the account of
Mr. Magno Lim.30
Defense of Agency Unavailing
As his main defense, accused-appellant cites the
testimonies of prosecution witnesses Restituto Renolo
and Reynaldo Santos to impress upon the Court that
he is an agent of UCC. And as an agent, so he claims,
an implied trust is constituted by his juridical
possession of UCC funds from the proceeds of cement
sales:
ATTY. CARMELO Z. LASAM: Mr. Renolo, can you
tell us the specific duties and responsibilities of your
area sales managers?
RESTITUTO RENOLO: The duties and responsibilities
of an area sales officer, we are in charge of the
distribution of our products, cement and likewise its
collection of its sales.31
xxxx
ATTY. RAUL ORACION: Okay, now as Assistant
Vice-President for Marketing and supervisor of all
area sales offices and branch managers, could you tell
the duties and responsibilities of the accused Bernard
Mirto at that time?
REYNALDO SANTOS: x x x, also collect sales and for
the cash for the collection of our sales.32
To accused-appellant, he had authority to collect and
accept payments from customers, and was constituted
an agent of UCC. As collection agent of UCC, he
asserts he can hold the collections in trust and in favor
of UCC; and that he is a trustee of UCC and, therefore,
has juridical possession over the collected funds.
Consequently, accused-appellant maintains there was
no unlawful taking, for such taking was with the
knowledge and consent of UCC, thereby negating the
elements of taking personal property and without the
owner’s consent necessary in the crime of Qualified
Theft.
This contention fails.
The duty to collect payments is imposed on accused-
appellant because of his position as Branch Manager.
Because of this employer-employee relationship, he
cannot be considered an agent of UCC and is not
covered by the Civil Code provisions on agency.
Money received by an employee in behalf of his or her
employer is considered to be only in the material
possession of the employee.33
The fact that accused-appellant had authority to
accept payments from customers does not give him the
license to take the payments and deposit them to his
own account since juridical possession is not
transferred to him. On the contrary, the testimony he
cites only bolsters the fact that accused-appellant is an
official of UCC and had the trust and the confidence
of the latter and, therefore, could readily receive
payments from customers for and in behalf of said
company.
Proper Penalty
The trial court, as affirmed by the appellate court,
sentenced accused-appellant to restitute UCC the
aggregate amount of PhP 2,279,350, representing the
amount of the checks involved here. The trial court
also imposed the single penalty of reclusion perpetua.
Apparently, the RTC erred in imposing said single
penalty, and the CA erred in affirming it, considering
that accused-appellant had been convicted on four (4)
counts of qualified theft under Criminal Case Nos.
9034, 9115, 9117 and 9130. Consequently, accused-
appellant should have been accordingly sentenced to
imprisonment on four counts of qualified theft with
the appropriate penalties for each count. Criminal
Case No. 9034 is for PhP 308,200, Criminal Case No.
9115 is for PhP 688,750, Criminal Case No. 9117 is for
PhP 1,213,900, and Criminal Case No. 9130 is for
68,500 for the aggregate amount of PhP 2,279,350.
Now to get the proper penalty for each count, We
refer to People v. Mercado,34 where We established
that the appropriate penalty for Qualified Theft
is reclusion perpetua based on Art. 310 of the RPC,
which provides that "[t]he crime of [qualified] theft
shall be punished by the penalties next higher by two
degrees than those respectively specified in [Art. 309]
x x x." (Emphasis supplied.)
Applying the computation made in People v. Mercado
to the present case to arrive at the correct penalties,
We get the value of the property stolen as determined
by the trial court, which are PhP 308,200, PhP
688,750, PhP 1,213,900 and PhP 68,500. Based on Art.
30935 of the RPC, "since the value of the items exceeds
P22,000.00, the basic penalty is prision mayor in its
minimum and medium periods to be imposed in the
maximum period, which is 8 years, 8 months and 1 day
to 10 years of prision mayor."36
And in order to determine the additional years of
imprisonment, following People v. Mercado, We
deduct PhP 22,000 from each amount and each
difference should then be divided by PhP 10,000,
disregarding any amount less than PhP 10,000. We
now have 28 years, 66 years, 119 years and 4 years,
respectively, that should be added to the basic penalty.
But the imposable penalty for simple theft should not
exceed a total of 20 years. Therefore, had accused-
appellant committed simple theft, the penalty for each
of Criminal Case Nos. 9034, 9115 and 9117 would be
20 years of reclusion temporal; while Criminal Case
No. 9130 would be from 8 years, 8 months and 1 day
of prision mayor, as minimum, to 14 years of reclusion
temporal, as maximum, before the application of the
Indeterminate Sentence Law. However, as the penalty
for Qualified Theft is two degrees higher, the correct
imposable penalty is reclusion perpetua for each
count.
In fine, considering that accused-appellant is
convicted of four (4) counts of Qualified Theft with
corresponding four penalties of reclusion perpetua,
Art. 70 of the RPC on successive service of sentences
shall apply. Art. 70 pertinently provides that "the
maximum duration of the convict’s sentence shall not
be more than threefold the length of time
corresponding to the most severe of the penalties
imposed upon him. No other penalty to which he may
be liable shall be inflicted after the sum total of those
imposed equals the said maximum period. Such
maximum period shall in no case exceed forty years."
Applying said rule, despite the four penalties of
reclusion perpetua for four counts of Qualified Theft,
accused-appellant shall suffer imprisonment for a
period not exceeding 40 years.
WHEREFORE, the appeal is hereby DENIED. The
appealed CA Decision dated August 24, 2009 in CA-
G.R. CR-H.C. No. 03444
is AFFIRMED with MODIFICATION in that accused-
appellant Bernard G. Mirto is convicted of four (4)
counts of Qualified Theft and accordingly sentenced
to serve four (4) penalties of reclusion perpetua. But
with the application of Art. 70 of the RPC, accused-
appellant shall suffer the penalty of imprisonment for
a period not exceeding 40 years.
Costs against accused-appellant.
SO ORDERED.
PRESBITERO J. VELASCO, JR.
Associate Justice
WE CONCUR:
DIOSDADO M. PERALTA
Associate Justice
JOSE CATRAL
ROBERTO A. ABAD
MENDOZA
Associate Justice
Associate Justice
ESTELA M. PERLAS-BERNABE
Associate Justice
ATTESTATION
I attest that the conclusions in the above Decision had
been reached in consultation before the case was
assigned to the writer of the opinion of the Court’s
Division.
PRESBITERO J. VELASCO, JR.
Associate Justice
Chairperson
CERTIFICATION
Pursuant to Section 13, Article VIII of the
Constitution, and the Division Chairperson’s
Attestation, I certify that the conclusions in the above
Decision had been reached in consultation before the
case was assigned to the writer of the opinion of the
Court’s Division.
RENATO C. CORONA
Chief Justice
ROBBERY VS. THEFT

25. People vs. Cesar Concepcion, GR No. 200922, July

18, 2012

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 200922 July 18, 2012
PEOPLE OF THE PHILIPPINES, Appellee,
vs.
CESAR CONCEPCION y BULANIO, Appellant,
DECISION
CARPIO, J.:
The Case
This is a criminal case filed against the accused Cesar
Concepcion y Bulanio (Concepcion) for the crime of
robbery with homicide under Article 294 of the
Revised Penal Code (RPC), committed as follows:
That on or about the 25th day of May 2004, in Quezon
City, Philippines, the above-named accused,
conspiring together, confederating with his co-
accused ROSENDO OGARDO, JR. Y VILI.H1AS, with
intent to gain, by means of !(nee, violence and
intimidation of person, did then and there, willfully,
unlawfully and feloniously rob one JENNIFER
ACAMPADO Y QUIMPO, in the following manner,
to wit: While complainant was walking along Panay
Avenue corner Timog Avenue,
Barangay Paligsahan, this Cit), accused suddenly
appeared from behind riding in a Suzuki motorcycle
with Plate no. RCi-7037 and forcibly took, robbed and
carried away con1plainant 's shoulder bag containing
wrist watch, earring, brochure, bracelet and wallet all
valued at P3,000.00, Philippiine Currency, and that on
the occasion of the said robbery, accused ROSENDO
OGARDO, JR. Y VILLEGAS died due to vehicular
accident; to the damage and prejudice of the said
offended party in the aforementioned amount.
Contrary to law.1
The Regional Trial Court (RTC) of Quezon City,
Branch 81, in its Decision dated 1 August 2006 (RTC
Decision),2found Concepcion guilty beyond
reasonable doubt of the crime of robbery with
homicide and sentenced him to suffer the penalty of
reclusion perpetua with all accessory penalties
provided by law, and to reimburse private
complainant Jennifer Q. Acampado (Acampado) the
amount of ₱ 3,000 representing the cash, jewelry and
other personal items taken from her. On appeal, the
Fourth Division of the Court of Appeals (CA) affirmed
in toto the RTC Decision.

Prosecution’s Version of Facts

The RTC Decision provided the prosecution’s version
of facts, as supported by the records:
At around 11:00 o’clock a.m. of May 25, 2004, while
private complainant Jennifer Acampado was at the
corner of Mother Ignacia Street, Quezon City and at
another street which she could not remember and
seemed to be deserted at that time, a male person
riding at the back of the driver of a motorcycle whom
she later identified in open court as accused Cesar
Concepcion, snatched her brown Avon bag with black
strap which at that time, was placed on her left
shoulder. The black motorcycle with white covering
at the back side and with plate number which is not
visible to the eye, came from behind her. As the
motorcycle sped away, the accused even raised and
waved the bag that he snatched from Jennifer who was
unable to do anything but just cry and look at the
snatcher so much so that she recognized him in the
process.
Meanwhile, while prosecution witness Joemar de
Felipe was driving his R & E Taxi, in the same vicinity,
he witnessed the subject snatching incident. As the
accused was waving the bag at Jennifer, he blew his
horn. Ogardo drove faster so that de Felipe gave a
chase and kept on blowing his horn. Eventually,
Ogardo lost control of the motorcycle and it crashed
in front of his taxi, sending its two occupants to the
pavement. De Felipe immediately alighted from the
taxi with the intention to arrest the snatchers. At that
juncture, some policemen from the Kamuning Police
Station 10, EDSA, Kamuning, Quezon City, arrived.
Seeing that the snatchers were badly injured, the
policemen brought them to the East Avenue Medical
Center, Quezon City where Ogardo later expired.3
Defense’s Version of Facts
The RTC Decision likewise summarized the defense’s
version of facts, as follows:
For the defense, the accused testified. He denies
participation in the snatching incident and contends
that at around 11:00 a.m. of May 25, 2004, he and his
companion, Rosendo Ogardo, were riding in a
motorcycle when suddenly there was this chasing by
another motorcycle. A taxi bumped their motorcycles
and Rosendo was thrown to the gutter. Rosendo was
severely injured. The police brought them to the East
Avenue Medical Center where Rosendo died.
Thereafter, he was brought to the police station where
a woman pointed to him as snatcher. A case for
robbery with homicide was filed against him on the
same day.4
The Decision of the Regional Trial Court
The RTC declared Concepcion guilty beyond
reasonable doubt of the crime of robbery with
homicide. The dispositive portion of the RTC Decision
reads:
WHEREFORE, the Court finds accused CESAR
CONCEPCION y BULANIO guilty beyond reasonable
doubt of the crime of ROBBERY WITH HOMICIDE
described and penalized under Article 294 of the
Revised Penal Code as amended by R.A. 7659 in
relation to Article 61 of the RPC and is hereby
sentenced to suffer the penalty of Reclusion Perpetua
with all the accessory penalties provided by law and to
reimburse private complainant Jennifer Acampado the
amount of P3,000 representing the cash, jewelry and
other personal items taken from her.5
The RTC declared that all elements of the crime of
robbery were duly proven. The prosecution
sufficiently established the identity of Concepcion as
the person who snatched Acampado’s bag because
Concepcion was positively identified by the victim
Acampado and Joemar de Felipe (de Felipe), who both
had no ill-motive to falsely testify against Concepcion.
The Decision of the Court of Appeals
The CA affirmed the conviction of Concepcion. The
dispositive portion of the CA Decision reads:
WHEREFORE, the appealed decision of Branch 81 of
the RTC of Quezon City, dated August 1, 2006 is
hereby AFFIRMED IN TOTO.6
The CA declared that robbery with homicide was
committed. The CA held that, for as long as the
homicide resulted during, or because of, the robbery,
even if the killing was by mere accident, robbery with
homicide was committed. It is immaterial that death
supervened by mere accident or that the victim of
homicide was a person other than the victim of
robbery or that two or more persons were killed. What
is essential is that there is a direct relation or intimate
connection between the robbery and the killing,
whether the latter be prior or subsequent to the former
or whether both crimes be committed at the same
time.7
The Issues
Concepcion, in his brief, raised the following issues:
I. THE COURT A QUO GRAVELY ERRED IN
GIVING WEIGHT AND CREDENCE TO THE
HIGHLY INCONSISTENT TESTIMONIES OF
THE PROSECUTION WITNESSES.
II. THE COURT A QUO GRAVELY ERRED IN
CONVICTING THE ACCUSED-APPELLANT
DESPITE THE PROSECUTION’S FAILURE TO
PROVE HIS GUILT BEYOND REASONABLE
DOUBT.8
Concepcion discussed the issues jointly, claiming that
the CA erred because: (a) it gave credence to the
inconsistent testimonies of the prosecution witnesses
regarding the date and manner of the commission of
the crime; (b) even assuming that he snatched
Acampado’s shoulder bag, Concepcion should be held
liable for simple theft only; and (c) the prosecution
failed to establish that Ogardo’s death was by reason
or on the occasion of the alleged robbery.9
The Ruling of the Court
Inconsistent Testimonies of Prosecution Witnesses
Concepcion claims that Acampado and de Felipe, both
prosecution witnesses, made inconsistent testimonies.
First, de Felipe testified that the snatching incident
happened on 26 May 2004, when the information
states that the alleged crime was committed on 25 May
2004.10 Second, Acampado testified that Concepcion
was on board the motorcycle, sitting at the back of
Ogardo, when Concepcion snatched Acampado’s
shoulder bag from behind. In contrast, de Felipe
testified that Concepcion alighted from the
motorcycle and forcibly took Acampado’s shoulder
bag.11 Lastly, de Felipe, on direct examination, claimed
that the motorcycle slid and Ogardo and Concepcion
fell on the street. On cross examination, however, de
Felipe admitted that his taxi bumped the motorcycle,
causing Concepcion and Ogardo to be thrown off the
motorcycle.12
It is a general principle of law that factual findings of
the trial court are not disturbed on appeal unless the
court a quo is perceived to have overlooked,
misunderstood or misinterpreted certain facts or
circumstances of weight, which, if properly
considered, would have materially affected the
outcome of the case.13 We find no compelling reason
to disturb the factual findings of the RTC, as affirmed
by the CA, in this case.
Robbery vs. Theft
On the second and third issues, Article 293 of the RPC
defines robbery as a crime committed by "any person
who, with intent to gain, shall take any personal
property belonging to another, by means of violence
against or intimidation of any person, or using force
upon anything." Robbery with homicide occurs when,
by reason or on occasion of the robbery, the crime of
homicide shall have been committed.14 In Article 249
of the RPC, any person who shall kill another shall be
deemed guilty of homicide. Homicide, as used in
robbery with homicide, is to be understood in its
generic sense to include parricide and murder.15 The
penalty for the crime of robbery with homicide is
reclusion perpetua to death.16
Theft, on the other hand, is committed by any person
who, with intent to gain but without violence against
or intimidation of persons nor force upon things, shall
take the personal property of another without the
latter’s consent.17 The penalty of prision correccional
in its minimum and medium periods is imposed upon
persons guilty of theft, if the value of the thing stolen
is more than P200 but does not exceed P6,000.18
By definition in the RPC, robbery can be committed
in three ways, by using: (a) violence against any
person; (b) intimidation of any person; and/or (c) force
upon anything. Robbery by use of force upon things is
provided under Articles 299 to 305 of the RPC.
The main issue is whether the snatching of the
shoulder bag in this case is robbery or theft. Did
Concepcion employ violence or intimidation upon
persons, or force upon things, when he snatched
Acampado’s shoulder bag?
In People v. Dela Cruz,19 this Court found the accused
guilty of theft for snatching a basket containing
jewelry, money and clothing, and taking off with it,
while the owners had their backs turned.
In People v. Tapang,20 this Court affirmed the
conviction of the accused for frustrated theft because
he stole a white gold ring with diamond stones from
the victim’s pocket, which ring was immediately or
subsequently recovered from the accused at or about
the same time it was stolen.
In People v. Omambong,21 the Court distinguished
robbery from theft. The Court held:
Had the appellant then run away, he would
undoubtedly have been guilty of theft only, because
the asportation was not effected against the owner’s
will, but only without his consent; although, of course,
there was some sort of force used by the appellant in
taking the money away from the owner.
xxxx
What the record does show is that when the offended
party made an attempt to regain his money, the
appellant’s companions used violence to prevent his
succeeding.
xxxx
The crime committed is therefore robbery and not
theft, because personal violence was brought to bear
upon the offended party before he was definitely
deprived of his money.22
The prosecution failed to establish that Concepcion
used violence, intimidation or force in snatching
Acampado’s shoulder bag. Acampado herself merely
testified that Concepcion snatched her shoulder bag
which was hanging on her left shoulder. Acampado
did not say that Concepcion used violence,
intimidation or force in snatching her shoulder bag.
Given the facts, Concepcion’s snatching of
Acampado’s shoulder bag constitutes the crime of
theft, not robbery. Concepcion’s crime of theft was
aggravated by his use of a motorcycle in committing
the crime. Under Article 14(20) of the RPC, the use of
a motor vehicle as a means of committing a crime is a
generic aggravating circumstance. Thus, the
maximum period of the penalty for the crime of theft
shall be imposed upon Concepcion due to the presence
of a generic aggravating circumstance and the absence
of any mitigating circumstance.
Based on the RTC Decision’s statement of facts which
was affirmed by the CA, Concepcion’s co-conspirator,
Rosendo Ogardo, Jr. y Villegas (Ogardo), who was
driving the motorcycle, died because he lost control of
the motorcycle and crashed in front of de Felipe’s taxi.
Since Concepcion, as passenger in the motorcycle, did
not perform or execute any act that caused the death
of Ogardo, Concepcion cannot be held liable for
homicide.
Indeterminate Sentence Law
Section 1 of Act No. 4103 (The Indeterminate
Sentence Law) provides:
In imposing a prison sentence for an offense punished
by the Revised Penal Code, or its amendments, the
court shall sentence the accused to an indeterminate
sentence the maximum term of which shall be that
which, in view of the attending circumstances, could
be properly imposed under the rules of 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 x x x
xxxx
This Act shall not apply to persons convicted of
offenses punished with death penalty or life-
imprisonment; to those convicted of treason,
conspiracy or proposal to commit treason; to those
convicted of misprision of treason, rebellion, sedition
or espionage; to those convicted of piracy; to those
who are habitual delinquents; to those who have
escaped from confinement or evaded sentence; to
those who having been granted conditional pardon by
the Chief Executive shall have violated the terms
thereof; to those whose maximum term of
imprisonment does not exceed one year, not to those
already sentenced by final judgment at the time of
approval of this Act, except as provided in Section 5
hereof.
Since Concepcion is guilty of the crime of theft of
property valued at P3,000, the penalty shall be the
maximum period imposed by the RPC due to the
presence of the generic aggravating circumstance of
use of a motor vehicle in the commission of the crime.
The maximum penalty to be imposed upon
Concepcion is prision correccional in its medium
period. However, applying the Indeterminate
Sentence Law, the minimum period of Concepcion’s
penalty shall be within the range of the penalty next
lower to that prescribed by the RPC for the offense,
which is arresto mayor in its maximum period. For
this reason, we impose upon Concepcion the penalty
of arresto mayor in its maximum period, which is 6
months, to prision correccional in its medium period,
which is 4 years and 2 months.
WHEREFORE, we SET ASIDE the 6 September 2011
Decision of the Court of Appeals in C.A.-G.R. CR-H.C.
No. 04200 affirming the judgment of conviction of
robbery with homicide of the Regional Trial Court,
Branch 81 of Quezon City in Criminal Case No. 04-
127163 dated 1 August 2006. We find appellant Cesar
Concepcion y Bulanio GUILTY beyond reasonable
doubt of the crime of THEFT with the presence of a
generic aggravating circumstance of use of motor
vehicle in the commission of the crime and impose
upon him the indeterminate penalty of arresto
mayor in its maximum period, or 6 months, to prision
correccional in its medium period, or 4 years and 2
months.
We DIRECT the Director of the Bureau of Corrections
to implement this Decision and to report to this Court
the action taken within five (5) days from receipt of
this Decision.
SO ORDERED.
ANTONIO T. CARPIO
Senior Associate Justice
WE CONCUR:
ARTURO D. BRION
Associate Justice
MARIA LOURDES P.A. JOSE PORTUGAL
SERENO PEREZ
Associate Justice Associate Justice
BIENVENIDO L. REYES
Associate Justice
CERTIFICATION
I certify that the conclusions in the above Decision
had been reached in consultation before the case was
assigned to the writer of the opinion of the Court’s
Division.
ANTONIO T. CARPIO
Senior Associate Justice
(Per Section 12, R.A. 296, The Judiciary Act of 1948,
as amended)
BIGAMY

26. Teves vs. People and Bungalan, GR No. 188775,

Aug. 24, 2011

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 188775 August 24, 2011
CENON R. TEVES, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES and DANILO R.
BONGALON, Respondents.
DECISION
PEREZ, J.:
This Petition for Review seeks the reversal of the 21
January 2009 decision1 of the Court of Appeals (CA) in
CA-G.R. CR No. 31125 affirming in toto the decision
of the Regional Trial Court (RTC), Branch 20, Malolos
City in Criminal Case No. 2070-M-2006. The RTC
decision2 found petitioner Cenon R. Teves guilty
beyond reasonable doubt of the crime of Bigamy
penalized under Article 349 of the Revised Penal
Code.
THE FACTS
On 26 November 1992, a marriage was solemnized
between Cenon Teves (Cenon) and Thelma Jaime-
Teves (Thelma) at the Metropolitan Trial Court of
Muntinlupa City, Metro Manila.3
After the marriage, Thelma left to work abroad. She
would only come home to the Philippines for
vacations. While on a vacation in 2002, she was
informed that her husband had contracted marriage
with a certain Edita Calderon (Edita). To verify the
information, she went to the National Statistics Office
and secured a copy of the Certificate of
Marriage4 indicating that her husband and Edita
contracted marriage on 10 December 2001 at the
Divine Trust Consulting Services, Malhacan,
Meycauayan, Bulacan.
On 13 February 2006, Danilo Bongalon, uncle of
Thelma, filed before the Office of the Provincial
Prosecutor of Malolos City, Bulacan a
complaint5 accusing petitioner of committing bigamy.
Petitioner was charged on 8 June 2006 with bigamy
defined and penalized under Article 349 of the Revised
Penal Code, as amended, in an Information6 which
reads:
That on or about the 10th day of December, 2001 up
to the present, in the municipality of Meycauayan,
province of Bulacan, Philippines, and within the
jurisdiction of this Honorable Court, the said Cenon R.
Teves being previously united in lawful marriage on
November 26, 1992 with Thelma B. Jaime and without
the said marriage having legally dissolved, did then
and there willfully, unlawfully and feloniously
contract a second marriage with one Edita T.
Calderon, who knowing of the criminal design of
accused Cenon R. Teves to marry her and in
concurrence thereof, did then and there willfully,
unlawfully and feloniously cooperate in the execution
of the offense by marrying Cenon R. Teves, knowing
fully well of the existence of the marriage of the latter
with Thelma B. Jaime.
During the pendency of the criminal case for bigamy,
the Regional Trial Court , Branch 130, Caloocan City,
rendered a decision7 dated 4 May 2006 declaring the
marriage of petitioner and Thelma null and void on
the ground that Thelma is physically incapacitated to
comply with her essential marital obligations pursuant
to Article 36 of the Family Code. Said decision became
final by virtue of a Certification of Finality8 issued on
27 June 2006.
On 15 August 2007, the trial court rendered its assailed
decision, the dispositive portion of which reads:
WHEREFORE, premises considered, judgment is
hereby rendered finding the accused Cenon R. Teves,
also known as Cenon Avelino R. Teves, guilty beyond
reasonable doubt of the crime of Bigamy penalized
under Article 349 of the Revised Penal Code, as
charged in the Information dated June 8, 2006.
Pursuant to the provisions of the Indeterminate
Sentence Law, he is hereby sentenced to suffer the
penalty of imprisonment of four (4) years, two (2)
months and one (1) day of prision correccional, as
minimum, to six (6) years and one (1) day of prision
mayor, as maximum.9
Refusing to accept such verdict, petitioner appealed
the decision before the Court of Appeals contending
that the court a quo erred in not ruling that his
criminal action or liability had already been
extinguished. He also claimed that the trial court erred
in finding him guilty of Bigamy despite the defective
Information filed by the prosecution.10
On 21 January 2009, the CA promulgated its decision,
the dispositive portion of which reads:
WHEREFORE, the appeal is DISMISSED and the
Decision dated August 15, 2007 in Criminal Case No.
2070-M-2006 is AFFIRMED in TOTO.11
On 11 February 2009, petitioner filed a motion for
reconsideration of the decision.12 This however, was
denied by the CA in a resolution issued on 2 July
2009.13
Hence, this petition.
Petitioner claims that since his previous marriage was
declared null and void, "there is in effect no marriage
at all, and thus, there is no bigamy to speak of."14 He
differentiates a previous valid or voidable marriage
from a marriage null and void ab initio, and posits that
the former requires a judicial dissolution before one
can validly contract a second marriage but a void
marriage, for the same purpose, need not be judicially
determined.
Petitioner further contends that the ruling of the
Court in Mercado v. Tan15 is inapplicable in his case
because in the Mercado case the prosecution for
bigamy was initiated before the declaration of nullity
of marriage was filed. In petitioner’s case, the first
marriage had already been legally dissolved at the time
the bigamy case was filed in court.
We find no reason to disturb the findings of the CA.
There is nothing in the law that would sustain
petitioner’s contention.
Article 349 of the Revised Penal Code states:
The penalty of prision mayor shall be imposed upon
any person who shall contract a second or subsequent
marriage before the former marriage has been legally
dissolved, or before the absent spouse has been
declared presumptively dead by means of a judgment
rendered in the proper proceedings.
The elements of this crime are as follows:
1. That the offender has been legally married;
2. That the marriage has not been legally dissolved
or, in case his or her spouse is absent, the absent
spouse could not yet be presumed dead according
to the Civil Code;
3. That he contracts a second or subsequent
marriage; and
 4. That the second or subsequent marriage has all
the essential requisites for validity.16
The instant case has all the elements of the crime of
bigamy. Thus, the CA was correct in affirming the
conviction of petitioner.
Petitioner was legally married to Thelma on 26
November 1992 at the Metropolitan Trial Court of
Muntinlupa City. He contracted a second or
subsequent marriage with Edita on 10 December 2001
in Meycauayan, Bulacan. At the time of his second
marriage with Edita, his marriage with Thelma was
legally subsisting. It is noted that the finality of the
decision declaring the nullity of his first marriage with
Thelma was only on 27 June 2006 or about five (5)
years after his second marriage to Edita. Finally, the
second or subsequent marriage of petitioner with Edita
has all the essential requisites for validity. Petitioner
has in fact not disputed the validity of such subsequent
marriage.17
It is evident therefore that petitioner has committed
the crime charged. His contention that he cannot be
charged with bigamy in view of the declaration of
nullity of his first marriage is bereft of merit. The
Family Code has settled once and for all the conflicting
jurisprudence on the matter. A declaration of the
absolute nullity of a marriage is now explicitly
required either as a cause of action or a ground for
defense. Where the absolute nullity of a previous
marriage is sought to be invoked for purposes of
contracting a second marriage, the sole basis
acceptable in law for said projected marriage to be free
from legal infirmity is a final judgment declaring the
previous marriage void.18
The Family Law Revision Committee and the Civil
Code Revision Committee which drafted what is now
the Family Code of the Philippines took the position
that parties to a marriage should not be allowed to
assume that their marriage is void even if such be the
fact but must first secure a judicial declaration of the
nullity of their marriage before they can be allowed to
marry again.19
In fact, the requirement for a declaration of absolute
nullity of a marriage is also for the protection of the
spouse who, believing that his or her marriage is illegal
and void, marries again. With the judicial declaration
of the nullity of his or her marriage, the person who
marries again cannot be charged with
bigamy.20 1avvphi1
In numerous cases,21 this Court has consistently held
that a judicial declaration of nullity is required before
a valid subsequent marriage can be contracted; or else,
what transpires is a bigamous marriage, reprehensible
and immoral.
If petitioner’s contention would be allowed, a person
who commits bigamy can simply evade prosecution by
immediately filing a petition for the declaration of
nullity of his earlier marriage and hope that a
favorable decision is rendered therein before anyone
institutes a complaint against him. We note that in
petitioner’s case the complaint was filed before the
first marriage was declared a nullity. It was only the
filing of the Information that was overtaken by the
declaration of nullity of his first marriage. Following
petitioner’s argument, even assuming that a complaint
has been instituted, such as in this case, the offender
can still escape liability provided that a decision
nullifying his earlier marriage precedes the filing of
the Information in court. Such cannot be allowed. To
do so would make the crime of bigamy dependent
upon the ability or inability of the Office of the Public
Prosecutor to immediately act on complaints and
eventually file Informations in court. Plainly,
petitioner’s strained reading of the law is against its
simple letter.
Settled is the rule that criminal culpability attaches to
the offender upon the commission of the offense, and
from that instant, liability appends to him until
extinguished as provided by law, and that the time of
filing of the criminal complaint (or Information, in
proper cases) is material only for determining
prescription.22 The crime of bigamy was committed by
petitioner on 10 December 2001 when he contracted
a second marriage with Edita. The finality on 27 June
2006 of the judicial declaration of the nullity of his
previous marriage to Thelma cannot be made to
retroact to the date of the bigamous marriage.
WHEREFORE, the instant petition for review is
DENIED and the assailed Decision dated 21 January
2009 of the Court of Appeals is AFFIRMED in toto.
Costs against petitioner.
SO ORDERED.
JOSE PORTUGAL PEREZ
Associate Justice
WE CONCUR:
ANTONIO T. CARPIO
Associate Justice
Chairperson
DIOSDADO M.
ARTURO D. BRION
PERALTA*
Associate Justice
Associate Justice
JOSE CATRAL MENDOZA**
Associate Justice
ATTESTATION
I attest that the conclusions in the above Decision had
been reached in consultation before the case was
assigned to the writer of the opinion of the Court’s
Division.
ANTONIO T. CARPIO
Associate Justice
Chairperson
CERTIFICATION
Pursuant to Section 13, Article VIII of the
Constitution, and the Division Chairperson’s
Attestation, it is hereby certified that the conclusions
in the above Decision were reached in consultation
before the case was assigned to the writer of the
opinion of the Court’s Division.
RENATO C. CORONA
Chief Justice
27. Benjamin Bangayan, Jr. vs. Sally Go Bangayan, GR
No. 172777, 172792, Oct. 19, 2011
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 172777 October 19, 2011
BENJAMIN B. BANGAYAN, JR., Petitioner,
vs.
SALLY GO BANGAYAN, Respondent.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 172792
RESALLY DE ASIS DELFIN, Petitioner,
vs.
SALLY GO BANGAYAN, Respondent.
DECISION
MENDOZA, J.:
These are consolidated petitions for review on
certiorari under Rule 45 of the 1997 Revised Rules of
Civil Procedure assailing the March 14, 2006
Decision1 and the May 22, 2006 Resolution2 of the
Court of Appeals (CA) in CA-G.R. SP No. 83704
entitled "Sally Go-Bangayan v. Hon. Luisito C.
Sardillo, in his capacity as Presiding Judge of RTC-
Caloocan City, Branch 126, Benjamin B. Bangayan, Jr.
and Resally de Asis Delfin."
The Facts
This case stemmed from a complaint-affidavit filed by
respondent Sally Go-Bangayan (Sally Go) accusing
petitioners Benjamin Bangayan, Jr. (Benjamin, Jr.) and
Resally de Asis Delfin (Resally) of having committed
the crime of bigamy.3
On March 7, 1982, Benjamin, Jr. married Sally Go in
Pasig City and they had two children.4 Later, Sally Go
learned that Benjamin, Jr. had taken Resally as his
concubine whom he subsequently married on January
5, 2001 under the false name, "Benjamin Z.
Sojayco."5 Benjamin, Jr. fathered two children with
Resally. Furthermore, Sally Go discovered that on
September 10, 1973, Benjamin, Jr. also married a
certain Azucena Alegre (Azucena) in Caloocan City.
The City Prosecutor of Caloocan City conducted a
preliminary investigation and thereafter issued a
Resolution dated June 5, 2002 recommending the
filing of an information for bigamy against Benjamin,
Jr. and Resally for having contracted a marriage
despite knowing fully well that he was still legally
married to Sally Go.6 The information was duly filed
on November 15, 2002 and was raffled to the Regional
Trial Court of Caloocan City, Branch 126 (RTC) where
it was docketed as Criminal Case No. C-66783.7
After the arraignment, during which petitioners both
pleaded not guilty to the charge against them, the
prosecution presented and offered its evidence.8 On
September 8, 2003, Benjamin, Jr. and Resally
separately filed their respective motions for leave to
file a demurrer to evidence.9 This was granted by the
RTC in its Order dated September 29, 2003.10
On October 20, 2003, Benjamin, Jr. filed his Demurrer
to Evidence, praying that the criminal case for bigamy
against him be dismissed for failure of the prosecution
to present sufficient evidence of his guilt.11 His plea
was anchored on two main arguments: (1) he was not
legally married to Sally Go because of the existence of
his prior marriage to Azucena; and (2) the prosecution
was unable to show that he and the "Benjamin Z.
Sojayco Jr.," who married Resally, were one and the
same person.12
In its December 3, 2003 Order,13 the RTC dismissed
the criminal case against Benjamin, Jr. and Resally for
insufficiency of evidence.14 It reasoned out that the
prosecution failed to prove beyond reasonable doubt
that Benjamin, Jr. used the fictitious name, Benjamin
Z. Sojayco Jr., in contracting his marriage with
Resally.15Corollarily, Resally cannot be convicted of
bigamy because the prosecution failed to establish that
Resally married Benjamin, Jr.16
Aggrieved, Sally Go elevated the case to the CA via a
petition for certiorari. On March 14, 2006, the CA
promulgated its Decision17 granting her petition and
ordering the remand of the case to the RTC for further
proceedings. The CA held that the following pieces of
evidence presented by the prosecution were sufficient
to deny the demurrer to evidence: (1) the existence of
three marriages of Benjamin, Jr. to Azucena, Sally Go
and Resally; (2) the letters and love notes from Resally
to Benjamin, Jr.; (3) the admission of Benjamin, Jr. as
regards his marriage to Sally Go and Azucena; and (4)
Benjamin, Jr.’s admission that he and Resally were in
some kind of a relationship.18 The CA further stated
that Benjamin, Jr. was mistaken in claiming that he
could not be guilty of bigamy because his marriage to
Sally Go was null and void in light of the fact that he
was already married to Azucena. A judicial declaration
of nullity was required in order for him to be able to
use the nullity of his marriage as a defense in a bigamy
charge.19
Petitioners’ motions for reconsideration were both
denied by the CA in a Resolution dated May 22,
2006.20
Hence, these petitions.
The Issues
Petitioner Benjamin, Jr. raises the following issues:
 1. Whether or not the Honorable Court of Appeals
in a certiorari proceedings may inquire into the
factual matters presented by the parties in the
lower court, without violating the constitutional
right of herein petitioner (as accused in the lower
court) against double jeopardy as enshrined in
Section 21, Article III of the 1987 Constitution.
2. Whether or not the order of the trial court that
granted the Demurrer to Evidence filed by the
petitioners as accused therein was issued with
grave abuse of discretion that is tantamount to lack
of jurisdiction or excess of jurisdiction as to
warrant the grant of the relief as prayed for in the
Petition for Certiorari filed by respondent Sally
[Go-Bangayan].
3. Whether or not the prosecution was indeed
denied due process when the trial court allegedly
ignored the existence [of the] pieces of evidence
presented by the prosecution.21
On the other hand, petitioner Resally poses the
following questions:
 1. Whether or not the Honorable Court of Appeals
committed serious errors of law in giving due
course to the petition for certiorari
notwithstanding the lack of legal standing of the
herein respondent (petitioner therein) as the said
petition was filed without the prior conformity
and/or imprimatur of the Office of the Solicitor
General, or even the City Prosecutor’s Office of
Caloocan City
2. Whether or not the Honorable Court of Appeals
committed serious errors of law in ordering the
further proceedings of the case as it would violate
the right of the accused against double jeopardy.22
Essentially, the issues which must be resolved by this
Court are:
1. Whether Sally Go had the legal standing to file
a petition for certiorari before the CA despite the
lack of consent of either the Office of the Solicitor
General or the Office of the City
Prosecutor (OCP) of Caloocan.
 2. Whether petitioners’ right against double
jeopardy was violated by the CA when it reversed
the December 3, 2003 RTC Order dismissing the
criminal case against them.
The Court’s Ruling
The Court finds merit in the petitions.
Only the OSG, and not the private offended party, has
the authority to question the order granting the
demurrer to evidence in a criminal case.
Petitioner Resally argues that Sally Go had no
personality to file the petition for certiorari before the
CA because the case against them (Resally and
Benjamin, Jr.) is criminal in nature. It being so, only
the OSG or the OCP of Caloocan may question the
RTC Order dismissing the case against
them.23 Respondent’s intervention as the offended
party in the prosecution of the criminal case is only
limited to the enforcement of the civil liability.24
Sally Go counters that as the offended party, she has
an interest in the maintenance of the criminal
prosecution against petitioners and quotes Merciales
v. Court of Appeals25 to support her position: "The
right of offended parties to appeal an order of the trial
court which deprives them of due process has always
been recognized, the only limitation being that they
cannot appeal any adverse ruling if to do so would
place the accused in double jeopardy." Moreover, the
OSG and the OCP had impliedly consented to the
filing of the petition before the CA because they did
not interpose any objection.26
This Court leans toward Resally’s contention that Sally
Go had no personality to file the petition for certiorari
before the CA. It has been consistently held that in
criminal cases, the acquittal of the accused or the
dismissal of the case against him can only be appealed
by the Solicitor General, acting on behalf of the
State.27 The private complainant or the offended party
may question such acquittal or dismissal only insofar
as the civil liability of the accused is concerned.28 As
explained in the case of People v. Santiago:291awphil
It is well-settled that in criminal cases where the
offended party is the State, the interest of the private
complainant or the private offended party is limited to
the civil liability. Thus, in the prosecution of the
offense, the complainant's role is limited to that of a
witness for the prosecution. If a criminal case is
dismissed by the trial court or if there is an acquittal, an
appeal therefrom on the criminal aspect may be
undertaken only by the State through the Solicitor
General. Only the Solicitor General may represent the
People of the Philippines on appeal. The private
offended party or complainant may not take such
appeal. However, the said offended party or
complainant may appeal the civil aspect despite the
acquittal of the accused.
In a special civil action for certiorari filed under
Section 1, Rule 65 of the Rules of Court wherein it is
alleged that the trial court committed a grave abuse of
discretion amounting to lack of jurisdiction or on
other jurisdictional grounds, the rules state that the
petition may be filed by the person aggrieved. In such
case, the aggrieved parties are the State and the private
offended party or complainant. The complainant has
an interest in the civil aspect of the case so he may file
such special civil action questioning the decision or
action of the respondent court on jurisdictional
grounds. In so doing, complainant should not bring
the action in the name of the People of the Philippines.
The action may be prosecuted in name of said
complainant. [Emphases Supplied]
A perusal of the petition for certiorari filed by Sally Go
before the CA discloses that she sought
reconsideration of the criminal aspect of the case.
Specifically, she prayed for the reversal of the trial
court’s order granting petitioners’ demurrer to
evidence and the conduct of a full blown trial of the
criminal case. Nowhere in her petition did she even
briefly discuss the civil liability of petitioners. It is
apparent that her only desire was to appeal the
dismissal of the criminal case against the petitioners.
Because bigamy is a criminal offense, only the OSG is
authorized to prosecute the case on appeal. Thus, Sally
Go did not have the requisite legal standing to appeal
the acquittal of the petitioners.
Sally Go was mistaken in her reading of the ruling
in Merciales. First, in the said case, the OSG joined the
cause of the petitioner, thereby meeting the
requirement that criminal actions be prosecuted under
the direction and control of the public
prosecutor.30 Second, the acquittal of the accused was
done without due process and was declared null and
void because of the nonfeasance on the part of the
public prosecutor and the trial court.31 There being no
valid acquittal, the accused therein could not invoke
the protection of double jeopardy.
In this case, however, neither the Solicitor General
nor the City Prosecutor of Caloocan City joined the
cause of Sally Go, much less consented to the filing of
a petition for certiorari with the appellate court.
Furthermore, she cannot claim to have been denied
due process because the records show that the trial
court heard all the evidence against the accused and
that the prosecution had formally offered the evidence
before the court granted the demurrer to evidence.
Thus, the petitioners’ acquittal was valid, entitling
them to invoke their right against double jeopardy.
Double jeopardy had already set-in
Petitioners contend that the December 3, 2003 Order
of dismissal issued by the RTC on the ground of
insufficiency of evidence is a judgment of acquittal.
The prosecution is, thus, barred from appealing the
RTC Order because to allow such an appeal would
violate petitioners’ right against double
jeopardy.32 They insist that the CA erred in ordering
the remand of the case to the lower court for further
proceedings because it disregarded the constitutional
proscription on the prosecution of the accused for the
same offense.33
On the other hand, Sally Go counters that the
petitioners cannot invoke their right against double
jeopardy because the RTC decision acquitting them
was issued with grave abuse of discretion, rendering
the same null and void.34
A demurrer to evidence is filed after the prosecution
has rested its case and the trial court is required to
evaluate whether the evidence presented by the
prosecution is sufficient enough to warrant the
conviction of the accused beyond reasonable doubt. If
the court finds that the evidence is not sufficient and
grants the demurrer to evidence, such dismissal of the
case is one on the merits, which is equivalent to the
acquittal of the accused.35 Well-established is the rule
that the Court cannot review an order granting the
demurrer to evidence and acquitting the accused on
the ground of insufficiency of evidence because to do
so will place the accused in double jeopardy.36
The right of the accused against double jeopardy is
protected by no less than the Bill of Rights (Article III)
contained in the 1987 Constitution, to wit:
Section 21. No person shall be twice put in jeopardy of
punishment for the same offense. If an act is punished
by a law and an ordinance, conviction or acquittal
under either shall constitute a bar to another
prosecution for the same act.
Double jeopardy attaches if the following elements are
present: (1) a valid complaint or information; (2) a
court of competent jurisdiction; (3) the defendant had
pleaded to the charge; and (4) the defendant was
acquitted, or convicted or the case against him was
dismissed or otherwise terminated without his express
consent.37 However, jurisprudence allows for certain
exceptions when the dismissal is considered final even
if it was made on motion of the accused, to wit:
(1) Where the dismissal is based on a demurrer to
evidence filed by the accused after the prosecution
has rested, which has the effect of a judgment on
the merits and operates as an acquittal.
(2) Where the dismissal is made, also on motion of
the accused, because of the denial of his right to a
speedy trial which is in effect a failure to
prosecute.38
The only instance when the accused can be barred
from invoking his right against double jeopardy is
when it can be demonstrated that the trial court acted
with grave abuse of discretion amounting to lack or
excess of jurisdiction, such as where the prosecution
was not allowed the opportunity to make its case
against the accused or where the trial was a
sham.39 For instance, there is no double jeopardy (1)
where the trial court prematurely terminated the
presentation of the prosecution's evidence and
forthwith dismissed the information for insufficiency
of evidence;40and (2) where the case was dismissed at
a time when the case was not ready for trial and
adjudication.41
In this case, all four elements of double jeopardy are
doubtless present. A valid information for the crime of
bigamy was filed against the petitioners, resulting in
the institution of a criminal case against them before
the proper court. They pleaded not guilty to the
charges against them and subsequently, the case was
dismissed after the prosecution had rested its case.
Therefore, the CA erred in reversing the trial court’s
order dismissing the case against the petitioners
because it placed them in double jeopardy.
As previously discussed, an acquittal by virtue of a
demurrer to evidence is not appealable because it will
place the accused in double jeopardy. However, it may
be subject to review only by a petition for certiorari
under Rule 65 of the Rules of Court showing that the
trial court committed grave abuse of discretion
amounting to lack or excess of jurisdiction or a denial
of due process.42
Grave abuse of discretion has been defined as that
capricious or whimsical exercise of judgment which is
tantamount to lack of jurisdiction. "The abuse of
discretion must be patent and gross as to amount to an
evasion of a positive duty or a virtual refusal to
perform a duty enjoined by law, or to act at all in
contemplation of law, as where the power is exercised
in an arbitrary and despotic manner by reason of
passion and hostility."43 The party questioning the
acquittal of an accused should be able to clearly
establish that the trial court blatantly abused its
discretion such that it was deprived of its authority to
dispense justice.44
The CA determined that the trial court committed
grave abuse of discretion in ignoring the evidence
presented by the prosecution and granting petitioners’
demurrer to evidence on the ground that the
prosecution failed to establish by sufficient evidence
the existence of the crime.45 An examination of the
decision of the trial court, however, yields the
conclusion that there was no grave abuse of discretion
on its part. Even if the trial court had incorrectly
overlooked the evidence against the petitioners, it
only committed an error of judgment, and not one of
jurisdiction, which could not be rectified by a petition
for certiorari because double jeopardy had already set
in.46
As regards Sally Go’s assertion that she had been
denied due process, an evaluation of the records of the
case proves that nothing can be further from the truth.
Jurisprudence dictates that in order for a decision of
the trial court to be declared null and void for lack of
due process, it must be shown that a party was
deprived of his opportunity to be heard.47 Sally Go
cannot deny that she was given ample opportunity to
present her witnesses and her evidence against
petitioners. Thus, her claim that she was denied due
process is unavailing.
WHEREFORE, the petitions are GRANTED. The
March 14, 2006 Decision and the May 22, 2006
Resolution of the Court of Appeals are REVERSED
and SET ASIDE. The December 3, 2003 Order of the
Regional Trial Court, Branch 126, Caloocan City, in
Criminal Case No. C-66783, granting the Demurrer to
Evidence of petitioners Benjamin B. Bangayan, Jr. and
Resally de Asis Delfin and dismissing the case against
them is hereby REINSTATED.
SO ORDERED.
JOSE CATRAL MENDOZA
Associate Justice
WE CONCUR:
PRESBITERO J. VELASCO, JR.
Associate Justice
Chairperson
DIOSDADO M.
ROBERTO A. ABAD
PERALTA
Associate Justice
Associate Justice
ESTELA M. PERLAS-BERNABE
Associate Justice
ATTESTATION
I attest that the conclusions in the above Decision had
been reached in consultation before the case was
assigned to the writer of the opinion of the Court’s
Division.
PRESBITERO J. VELASCO, JR.
Associate Justice
Chairperson, Third Division
CERTIFICATION
Pursuant to Section 13, Article VIII of the
Constitution and the Division Chairperson’s
Attestation, I certify that the conclusions in the above
Decision had been reached in consultation before the
case was assigned to the writer of the opinion of the
Court’s Division.
RENATO C. CORONA
Chief Justice
28. Merlinda Montañes vs. Lourdes Tajolosa, GR No.
181089, Oct. 22, 2012

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 181089 October 22, 2012
MERLINDA CIPRIANO MONTAÑES, Complainant,
vs.
LOURDES TAJOLOSA CIPRIANO, Respondent.
DECISION
PERALTA, J.:
For our resolution is a petition for review on certiorari
which seeks to annul the Order1 dated September 24,
2007 of the Regional Trial Court (RTC) of San Pedro,
Laguna, Branch 31, issued in Criminal Case No. 4990-
SPL which dismissed the lnformation for Bigamy filed
against respondent Lourdes Tajolosa Cipriano. Also
assailed is the RTC Resolution2 dated January 2, 2008
denying the motion for reconsideration.
On April 8, 1976, respondent married Socrates Flores
(Socrates) in Lezo, Aklan.3 On January 24, 1983, during
the subsistence of the said marriage, respondent
married Silverio V. Cipriano (Silverio) in San Pedro,
Laguna.4 In 2001, respondent filed with the RTC of
Muntinlupa, Branch
256, a Petition for the Annulment of her marriage
with Socrates on the ground of the latter’s
psychological incapacity as defined under Article 36 of
the Family Code, which was docketed as Civil Case
No. 01-204. On July 18, 2003, the RTC of Muntinlupa,
Branch 256, rendered an Amended Decision5 declaring
the marriage of respondent with Socrates null and
void. Said decision became final and executory on
October 13, 2003.6
On May 14, 2004, petitioner Merlinda Cipriano
Montañez, Silverio’s daughter from the first marriage,
filed with the Municipal Trial Court of San Pedro,
Laguna, a Complaint7 for Bigamy against respondent,
which was docketed as Criminal Case No. 41972.
Attached to the complaint was an
Affidavit8 (Malayang Sinumpaang Salaysay) dated
August 23, 2004, thumb-marked and signed by
Silverio,9 which alleged, among others, that
respondent failed to reveal to Silverio that she was still
married to Socrates. On November 17, 2004, an
Information10 for Bigamy was filed against respondent
with the RTC of San Pedro, Laguna, Branch 31. The
case was docketed as Criminal Case No. 4990-SPL. The
Information reads:
That on or about January 24, 1983, in the Municipality
of San Pedro, Province of Laguna, Philippines, and
within the jurisdiction of this Honorable Court, the
said accused did then and there willfully, unlawfully
and feloniously contract a second or subsequent
marriage with one SILVERIO CIPRIANO VINALON
while her first marriage with SOCRATES FLORES has
not been judicially dissolved by proper judicial
authorities.11
On July 24, 2007 and before her arraignment,
respondent, through counsel, filed a Motion to Quash
Information (and Dismissal of the Criminal
Complaint)12 alleging that her marriage with Socrates
had already been declared void ab initio in 2003, thus,
there was no more marriage to speak of prior to her
marriage to Silverio on January 24, 1983; that the basic
element of the crime of bigamy, i.e., two valid
marriages, is therefore wanting. She also claimed that
since the second marriage was held in 1983, the crime
of bigamy had already prescribed. The prosecution
filed its Comment13 arguing that the crime of bigamy
had already been consummated when respondent filed
her petition for declaration of nullity; that the law
punishes the act of contracting a second marriage
which appears to be valid, while the first marriage is
still subsisting and has not yet been annulled or
declared void by the court.
In its Order14 dated August 3, 2007, the RTC denied
the motion. It found respondent's argument that with
the declaration of nullity of her first marriage, there
was no more first marriage to speak of and thus the
element of two valid marriages in bigamy was absent,
to have been laid to rest by our ruling in Mercado v.
Tan15 where we held:
In the instant case, petitioner contracted a second
marriage although there was yet no judicial
declaration of nullity of his first marriage. In fact, he
instituted the Petition to have the first marriage
declared void only after complainant had filed a letter-
complaint charging him with bigamy. For contracting
a second marriage while the first is still subsisting, he
committed the acts punishable under Article 349 of
the Revised Penal Code.
That he subsequently obtained a judicial declaration of
the nullity of the first marriage was immaterial. To
repeat, the crime had already been consummated by
then. x x x16
As to respondent's claim that the action had already
prescribed, the RTC found that while the second
marriage indeed took place in 1983, or more than the
15-year prescriptive period for the crime of bigamy,
the commission of the crime was only discovered on
November 17, 2004, which should be the reckoning
period, hence, prescription has not yet set in.
Respondent filed a Motion for
Reconsideration17 claiming that the Mercado ruling
was not applicable, since respondent contracted her
first marriage in 1976, i.e., before the Family Code;
that the petition for annulment was granted and
became final before the criminal complaint for bigamy
was filed; and, that Article 40 of the Family Code
cannot be given any retroactive effect because this will
impair her right to remarry without need of securing
a declaration of nullity of a completely void prior
marriage.
On September 24, 2007, the RTC issued its assailed
Order,18 the dispositive portion of which reads:
Wherefore, the Order of August 3, 2007 is
reconsidered and set aside. Let a new one be entered
quashing the information. Accordingly, let the instant
case be DISMISSED.
SO ORDERED.
In so ruling, the RTC said that at the time the accused
had contracted a second marriage on January 24, 1983,
i.e., before the effectivity of the Family Code, the
existing law did not require a judicial declaration of
absolute nullity as a condition precedent to
contracting a subsequent marriage; that jurisprudence
before the Family Code was ambivalent on the issue of
the need of prior judicial declaration of absolute
nullity of the first marriage. The RTC found that both
marriages of respondent took place before the
effectivity of the Family Code, thus, considering the
unsettled state of jurisprudence on the need for a prior
declaration of absolute nullity of marriage before
commencing a second marriage and the principle that
laws should be interpreted liberally in favor of the
accused, it declared that the absence of a judicial
declaration of nullity should not prejudice the accused
whose second marriage was declared once and for all
valid with the annulment of her first marriage by the
RTC of Muntinlupa City in 2003.
Dissatisfied, a Motion for Reconsideration was filed by
the prosecution, but opposed by respondent. In a
Resolution dated January 2, 2008, the RTC denied the
same ruling, among others, that the judicial
declaration of nullity of respondent's marriage is
tantamount to a mere declaration or confirmation that
said marriage never existed at all, and for this reason,
her act in contracting a second marriage cannot be
considered criminal.
Aggrieved, petitioner directly filed the present
petition with us raising the following issues:
I. Whether the judicial nullity of a first marriage prior
to the enactment of the Family Code and the
pronouncement in Wiegel vs. Sempio-Diy on the
ground of psychological incapacity is a valid defense
for a charge of bigamy for entering into a second
marriage prior to the enactment of the Family Code
and the pronouncement in Wiegel vs. Sempio-Diy?
II. Whether the trial court erred in stating that the
jurisprudence prior to the enactment of the Family
Code and the pronouncement in Wiegel vs. Sempio-
Diy regarding the necessity of securing a declaration
of nullity of the first marriage before entering a second
marriage ambivalent, such that a person was allowed
to enter a subsequent marriage without the annulment
of the first without incurring criminal liability.19
Preliminarily, we note that the instant petition
assailing the RTC's dismissal of the Information for
bigamy was filed by private complainant and not by
the Office of the Solicitor General (OSG) which should
represent the government in all judicial proceedings
filed before us.20
Notwithstanding, we will give due course to this
petition as we had done in the past. In Antone v.
Beronilla,21 the offended party (private complainant)
questioned before the Court of Appeals (CA) the RTC's
dismissal of the Information for bigamy filed against
her husband, and the CA dismissed the petition on the
ground, among others, that the petition should have
been filed in behalf of the People of the Philippines by
the OSG, being its statutory counsel in all appealed
criminal cases. In a petition filed with us, we said that
we had given due course to a number of actions even
when the respective interests of the government were
not properly represented by the OSG and said:
In Labaro v. Panay, this Court dealt with a similar
defect in the following manner:
It must, however, be stressed that if the public
prosecution is aggrieved by any order ruling of the
trial judge in a criminal case, the OSG, and not the
prosecutor, must be the one to question the order or
ruling before us. x x x
Nevertheless, since the challenged order affects the
interest of the State or the plaintiff People of the
Philippines, we opted not to dismiss the petition on
this technical ground. Instead, we required the OSG to
comment on the petition, as we had done before in
some cases. In light of its Comment, we rule that the
OSG has ratified and adopted as its own the instant
petition for the People of the Philippines. (Emphasis
supplied)22
Considering that we also required the OSG to file a
Comment on the petition, which it did, praying that
the petition be granted in effect, such Comment had
ratified the petition filed with us.
As to the merit of the petition, the issue for resolution
is whether or not the RTC erred in quashing the
Information for bigamy filed against respondent.
Article 349 of the Revised Penal Code defines and
penalizes bigamy as follow:
Art. 349. Bigamy. – The penalty of prision mayor shall
be imposed upon any person who shall contract a
second or subsequent marriage before the former
marriage has been legally dissolved, or before the
absent spouse has been declared presumptively dead
by means of a judgment rendered in the proper
proceedings.
The elements of the crime of bigamy are: (a) the
offender has been legally married; (b) the marriage has
not been legally dissolved or, in case his or her spouse
is absent, the absent spouse could not yet be presumed
dead according to the Civil Code; (c) that he contracts
a second or subsequent marriage; and (d) the second or
subsequent marriage has all the essential requisites for
validity. The felony is consummated on the
celebration of the second marriage or subsequent
marriage.23 It is essential in the prosecution for bigamy
that the alleged second marriage, having all the
essential requirements, would be valid were it not for
the subsistence of the first marriage.24
In this case, it appears that when respondent
contracted a second marriage with Silverio in 1983,
her first marriage with Socrates celebrated in 1976 was
still subsisting as the same had not yet been annulled
or declared void by a competent authority. Thus, all
the elements of bigamy were alleged in the
Information. In her Motion to Quash the Information,
she alleged, among others, that:
xxxx
2. The records of this case would bear out that
accused's marriage with said Socrates Flores was
declared void ab initio on 14 April 2003 by Branch
256 of the Regional Trial Court of Muntinlupa
City. The said decision was never appealed, and
became final and executory shortly thereafter.
 3. In other words, before the filing of the
Information in this case, her marriage with Mr.
Flores had already been declared void from the
beginning.
4. There was therefore no marriage prior to 24
January 1983 to speak of. In other words, there was
only one marriage.
5. The basic element of the crime of bigamy, that
is, two valid marriages, is therefore wanting.25
Clearly, the annulment of respondent's first marriage
on the ground of psychological incapacity was
declared only in 2003. The question now is whether
the declaration of nullity of respondent's first marriage
justifies the dismissal of the Information for bigamy
filed against her.
We rule in the negative.
In Mercado v. Tan,26 we ruled that the subsequent
judicial declaration of the nullity of the first marriage
was immaterial, because prior to the declaration of
nullity, the crime of bigamy had already been
consummated. And by contracting a second marriage
while the first was still subsisting, the accused
committed the acts punishable under Article 349 of
the Revised Penal Code.
In Abunado v. People,27 we held that what is required
for the charge of bigamy to prosper is that the first
marriage be subsisting at the time the second marriage
is contracted.28 Even if the accused eventually
obtained a declaration that his first marriage was void
ab initio, the point is, both the first and the second
marriage were subsisting before the first marriage was
annulled.29
In Tenebro v. CA,30 we declared that although the
judicial declaration of the nullity of a marriage on the
ground of psychological incapacity retroacts to the
date of the celebration of the marriage insofar as the
vinculum between the spouses is concerned, it is
significant to note that said marriage is not without
legal effects. Among these effects is that children
conceived or born before the judgment of absolute
nullity of the marriage shall be considered legitimate.
There is, therefore, a recognition written into the law
itself that such a marriage, although void ab initio,
may still produce legal consequences. Among these
legal consequences is incurring criminal liability for
bigamy. To hold otherwise would render the State’s
penal laws on bigamy completely nugatory, and allow
individuals to deliberately ensure that each marital
contract be flawed in some manner, and to thus escape
the consequences of contracting multiple marriages,
while beguiling throngs of hapless women with the
promise of futurity and commitment.31
And in Jarillo v. People,32 applying the foregoing
jurisprudence, we affirmed the accused's conviction
for bigamy, ruling that the moment the accused
contracted a second marriage without the previous
one having been judicially declared null and void, the
crime of bigamy was already consummated because at
the time of the celebration of the second marriage, the
accused’s first marriage which had not yet been
declared null and void by a court of competent
jurisdiction was deemed valid and subsisting.
Here, at the time respondent contracted the second
marriage, the first marriage was still subsisting as it
had not yet been legally dissolved. As ruled in the
above-mentioned jurisprudence, the subsequent
judicial declaration of nullity of the first marriage
would not change the fact that she contracted the
second marriage during the subsistence of the first
marriage. Thus, respondent was properly charged of
the crime of bigamy, since the essential elements of
the offense charged were sufficiently alleged.
Respondent claims that Tenebro v. CA33 is not
applicable, since the declaration of nullity of the
previous marriage came after the filing of the
Information, unlike in this case where the declaration
was rendered before the information was filed. We do
not agree. What makes a person criminally liable for
bigamy is when he contracts a second or subsequent
marriage during the subsistence of a valid marriage.
Parties to the marriage should not be permitted to
judge for themselves its nullity, for the same must be
submitted to the judgment of competent courts and
only when the nullity of the marriage is so declared
can it be held as void, and so long as there is no such
declaration the presumption is that the marriage
exists.34 Therefore, he who contracts a second marriage
before the judicial declaration of nullity of the first
marriage assumes the risk of being prosecuted for
bigamy.35
Anent respondent's contention in her Comment that
since her two marriages were contracted prior to the
effectivity of the Family Code, Article 40 of the Family
Code cannot be given retroactive effect because this
will impair her right to remarry without need of
securing a judicial declaration of nullity of a
completely void marriage.
We are not persuaded.
In Jarillo v. People,36 where the accused, in her motion
for reconsideration, argued that since her marriages
were entered into before the effectivity of the Family
Code, then the applicable law is Section 29 of the
Marriage Law (Act 3613),37 instead of Article 40 of the
Family Code, which requires a final judgment
declaring the previous marriage void before a person
may contract a subsequent marriage. We did not find
the argument meritorious and said:
As far back as 1995, in Atienza v. Brillantes, Jr., the
Court already made the declaration that Article 40,
which is a rule of procedure, should be applied
retroactively because Article 256 of the Family Code
itself provides that said "Code shall have retroactive
effect insofar as it does not prejudice or impair vested
or acquired rights." The Court went on to explain,
thus:
The fact that procedural statutes may somehow affect
the litigants' rights may not preclude their retroactive
application to pending actions. The retroactive
application of procedural laws is not violative of any
right of a person who may feel that he is adversely
affected. The reason is that as a general rule, no vested
right may attach to, nor arise from, procedural
laws.1âwphi1
In Marbella-Bobis v. Bobis, the Court pointed out the
danger of not enforcing the provisions of Article 40 of
the Family Code, to wit:
In the case at bar, respondent’s clear intent is to obtain
a judicial declaration nullity of his first marriage and
thereafter to invoke that very same judgment to
prevent his prosecution for bigamy. He cannot have
his cake and eat it too. Otherwise, all that an
adventurous bigamist has to do is disregard Article 40
of the Family Code, contract a subsequent marriage
and escape a bigamy charge by simply claiming that
the first marriage is void and that the subsequent
marriage is equally void for lack of a prior judicial
declaration of nullity of the first. A party may even
enter into a marriage license and thereafter contract a
subsequent marriage without obtaining a declaration
of nullity of the first on the assumption that the first
marriage is void. Such scenario would render nugatory
the provision on bigamy.38
WHEREFORE, considering the foregoing, the petition
is GRANTED. The Order dated September 24, 2007
and the Resolution dated January 2, 2008 of the
Regional Trial Court of San Pedro, Laguna, Branch 31,
issued in Criminal Case No. 4990-SPL, are hereby SET
ASIDE. Criminal Case No. 4990-SPL is ordered
REMANDED to the trial court for further proceedings.
SO ORDERED.
DIOSDADO M. PERALTA
Associate Justice
WE CONCUR:
PERSBITERO J. VELASCO, JR.
Associate Justice
Chairperson
TERESITA J.
LEONARDO-DE ROBERTO A. ABAD
CASTRO* Associate Justice
Associate Justice
JOSE CATRAL MENDOZA
Associate Justice
ATTESTATION
I attest that the conclusions in the above Decision had
been reached in consultation before the case was
assigned to the writer of the opinion of the Court’s
Division
PRESBITERO J. VELASCO, JR.
Associate Justice
Chairperson, Third Division
CERTIFICATION
Pursuant to Section 13, Article VIII of the
Constitution and the Division Chairperson's
Attestation, I certify that the conclusions in the above
Decision had been reached in consultation before the
case was assigned to the writer of the opinion of the
Court's Division.
MARIA LOURDES P. A. SERENO
Chief Justice

29. James Walter Capili vs. People, GR No. 183805, July

3, 2013
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 183805 July 3, 2013
JAMES WALTER P. CAPILI, PETITIONER,
vs.
PEOPLE OF THE PHILIPPINES AND SHIRLEY
TISMO-CAPILI, RESPONDENTS.
DECISION
PERALTA, J.:
Before us is a Petition for Review on Certiorari under
Rule 45 of the Rules of Court seeking the reversal of
the Decision1 dated February 1, 2008 and
Resolution2 dated July 24, 2008 of the Court of Appeals
(CA) in CA-G.R. CR No. 30444.
The factual antecedents are as follows:
On June 28, 2004, petitioner was charged with the
crime of bigamy before the Regional Trial Court (RTC)
of Pasig City in an Information which reads:
On or about December 8, 1999, in Pasig City, and
within the jurisdiction of this Honorable Court, the
accused being previously united in lawful marriage
with Karla Y. Medina-Capili and without said
marriage having been legally dissolved or annulled,
did then and there willfully, unlawfully and
feloniously contract a second marriage with Shirley G.
Tismo, to the damage and prejudice of the latter.
Contrary to law.3
Petitioner thereafter filed a Motion to Suspend
Proceedings alleging that: (1) there is a pending civil
case for declaration of nullity of the second marriage
before the RTC of Antipolo City filed by Karla Y.
Medina-Capili; (2) in the event that the marriage is
declared null and void, it would exculpate him from
the charge of bigamy; and (3) the pendency of the civil
case for the declaration of nullity of the second
marriage serves as a prejudicial question in the instant
criminal case.
Consequently, the arraignment and pre-trial were
reset by the RTC of Pasig City, in view of the filing of
the Motion to Suspend Proceedings filed by petitioner.
In the interim, the RTC of Antipolo City rendered a
decision declaring the voidness or incipient invalidity
of the second marriage between petitioner and private
respondent on the ground that a subsequent marriage
contracted by the husband during the lifetime of the
legal wife is void from the beginning.
Thereafter, the petitioner accused filed his
Manifestation and Motion (to Dismiss) praying for the
dismissal of the criminal case for bigamy filed against
him on the ground that the second marriage between
him and private respondent had already been declared
void by the RTC.
In an Order4 dated July 7, 2006, the RTC of Pasig City
granted petitioner’s Manifestation and Motion to
Dismiss, to wit:
The motion is anchored on the allegation that this case
should be dismissed as a decision dated December 1,
2004 had already been rendered by the Regional Trial
Court of Antipolo City, Branch 72 in Civil Case No.
01-6043 (entitled: "Karla Medina-Capili versus James
Walter P. Capili and Shirley G. Tismo," a case for
declaration of nullity of marriage) nullifying the
second marriage between James Walter P. Capili and
Shirley G. Tismo and said decision is already final.
In the opposition filed by the private prosecutor to the
motion, it was stated, among others, that the issues
raised in the civil case are not similar or intimately
related to the issue in this above-captioned case and
that the resolution of the issues in said civil case would
not determine whether or not the criminal action may
proceed.
WHEREFORE, after a judicious evaluation of the issue
and arguments of the parties, this Court is of the
humble opinion that there is merit on the Motion to
dismiss filed by the accused as it appears that the
second marriage between James Walter P. Capili and
Shirley G. Tismo had already been nullified by the
Regional Trial Court, Branch 72 of Antipolo City
which has declared "the voidness, non-existent or
incipient invalidity" of the said second marriage. As
such, this Court submits that there is no more bigamy
to speak of.
SO ORDERED.
Aggrieved, private respondent filed an appeal before
the CA.
Thus, in a Decision5 dated February 1, 2008, the CA
reversed and set aside the RTC’s decision. The fallo
reads:
WHEREFORE, premises considered, the Order dated
07 July 2006 of the Regional Trial Court of Pasig City,
Branch 152 in Crim. Case No. 128370 is REVERSED
and SET ASIDE. The case is remanded to the trial court
for further proceedings. No costs.
SO ORDERED.6
Petitioner then filed a Motion for Reconsideration
against said decision, but the same was denied in a
Resolution[7] dated July 24, 2008.
Accordingly, petitioner filed the present petition for
review on certiorari alleging that:
THERE IS NO LEGAL BASIS FOR THE COURT
OF APPEALS TO DISREGARD EXISTING
JURISPRUDENCE PRONOUNCED BY THIS
HONORABLE SUPREME COURT AND TO
REVERSE THE ORDER DATED JULY 7, 2006 OF
THE TRIAL COURT (REGIONAL TRIAL COURT,
PASIG CITY, BRANCH 152) ISSUED IN
CRIMINAL CASE NO. 128370 GRANTING THE
MOTION TO DISMISS THE CASE OF BIGAMY
AGAINST PETITIONER, INASMUCH AS THE
ISSUANCE OF THE SAID ORDER IS BASED ON
THE FINDINGS AND/OR FACTS OF THE CASE
IN THE DECISION OF THE REGIONAL TRIAL
COURT OF ANTIPOLO CITY, BRANCH 72, IN
CIVIL CASE NO. 01-6043 AND THE
CONCLUDING AND DISPOSITIVE PORTION IN
THE SAID DECISION WHICH STATES THAT,
AFTER PERUSAL OF THE EVIDENCE ON
RECORD AND THE TESTIMONIES OF
WITNESSES X X X, THE MARRIAGE BETWEEN
PETITIONER JAMES WALTER P. CAPILI AND
PRIVATE RESPONDENT SHIRLEY G. TISMO, IS
HEREBY NULL AND VOID.
THE COURT OF APPEALS GRAVELY ERRED
AND ABUSED ITS DISCRETION AMOUNTING
TO LACK OF JURISDICTION IN HOLDING
THAT THE DECLARATION OF NULLITY OF
MARRIAGE BETWEEN PETITIONER JAMES
WALTER P. CAPILI AND SHIRLEY G. TISMO
BY THE REGIONAL TRIAL COURT OF
ANTIPOLO CITY, BRANCH 72 IN ITS DECISION
IN CIVIL CASE NO. 01-6043, IS ON THE
GROUND THAT IT IS BIGAMOUS IN NATURE,
DESPITE THE ABSENCE OF ANY SUCH
FINDINGS OR FACTS ON WHICH IT IS BASED
IN VIOLATION OF ARTICLE VIII, SECTION 14
OF THE 1987 CONSTITUTION, AND IN
CONCLUDING THAT THE SAID
DECLARATION OF NULLITY OF MARRIAGE IS
NOT A GROUND FOR DISMISSAL OF THE
BIGAMY CASE AGAINST THE PETITIONER,
WHICH RULING IS NOT IN ACCORDANCE
WITH THE FACTS OF THE CASE OF THE SAID
DECISION AND WHICH IS CONTRARY TO
APPLICABLE LAWS AND ESTABLISHED
JURISPRUDENCE.
THE CASE OF TENEBRO V. COURT OF
APPEALS SPEAKS FOR ITSELF. IT IS AN
EXCEPTION TO EXISTING JURISPRUDENCE
INVOLVING DECLARATION OF NULLITY OF
MARRIAGE AND IS APPLICABLE ONLY TO
THE SET OF FACTS IN THE SAID CASE, AND
THE GROUND FOR DECLARATION OF
NULLITY OF MARRIAGE IS PSYCHOLOGICAL
INCAPACITY, HENCE, THERE IS NO LEGAL
BASIS FOR ABANDONING EXISTING
JURISPRUDENCE AS WHERE IN THE INSTANT
CASE THE GROUND FOR DECLARATION OF
NULLITY OF MARRIAGE IS VIOLATIVE OF
ARTICLE 3 IN RELATION TO ARTICLE 4 OF
THE FAMILY CODE.
THE COURT OF APPEALS GRAVELY ERRED IN
NOT HOLDING THAT THE USE BY
RESPONDENT SHIRLEY G. TISMO OF THE
SURNAME "CAPILI" IS ILLEGAL INASMUCH AS
THE DECISION OF THE REGIONAL TRIAL
COURT OF ANTIPOLO CITY, BRANCH 72 IN
CIVIL CASE NO. 01-6043 DECLARING NULL
AND VOID THE MARRIAGE BETWEEN JAMES
WALTER P. CAPILI AND SHIRLEY G. TISMO
HAD LONG BECOME FINAL AND
UNAPPEALABLE AS OF THE DATE OF THE
SAID DECISION ON DECEMBER 1, 2004 AND
DULY RECORDED IN THE RECORDS OF
ENTRIES IN THE CORRESPONDING BOOK IN
THE OFFICE OF THE CIVIL REGISTRAR OF
PASIG CITY AND THE NATIONAL STATISTICS
OFFICE.8
In essence, the issue is whether or not the subsequent
declaration of nullity of the second marriage is a
ground for dismissal of the criminal case for bigamy.
We rule in the negative.
Article 349 of the Revised Penal Code defines and
penalizes the crime of bigamy as follows:
Art. 349. Bigamy. – The penalty of prision mayor shall
be imposed upon any person who shall contract a
second or subsequent marriage before the former
marriage has been legally dissolved, or before the
absent spouse has been declared presumptively dead
by means of a judgment rendered in the proper
proceedings.
The elements of the crime of bigamy, therefore, are:
(1) the offender has been legally married; (2) the
marriage has not been legally dissolved or, in case his
or her spouse is absent, the absent spouse could not yet
be presumed dead according to the Civil Code; (3) that
he contracts a second or subsequent marriage; and (4)
that the second or subsequent marriage has all the
essential requisites for validity.9
In the present case, it appears that all the elements of
the crime of bigamy were present when the
Information was filed on June 28, 2004.
It is undisputed that a second marriage between
petitioner and private respondent was contracted on
December 8, 1999 during the subsistence of a valid
first marriage between petitioner and Karla Y.
Medina-Capili contracted on September 3, 1999.
Notably, the RTC of Antipolo City itself declared the
bigamous nature of the second marriage between
petitioner and private respondent. Thus, the
subsequent judicial declaration of the second marriage
for being bigamous in nature does not bar the
prosecution of petitioner for the crime of bigamy.
Jurisprudence is replete with cases holding that the
accused may still be charged with the crime of bigamy,
even if there is a subsequent declaration of the nullity
of the second marriage, so long as the first marriage
was still subsisting when the second marriage was
celebrated.
In Jarillo v. People,10 the Court affirmed the accused’s
conviction for bigamy ruling that the crime of bigamy
is consummated on the celebration of the subsequent
marriage without the previous one having been
judicially declared null and void, viz.:
The subsequent judicial declaration of the nullity of
the first marriage was immaterial because prior to the
declaration of nullity, the crime had already been
consummated. Moreover, petitioner’s assertion would
only delay the prosecution of bigamy cases
considering that an accused could simply file a petition
to declare his previous marriage void and invoke the
pendency of that action as a prejudicial question in the
criminal case. We cannot allow that.
The outcome of the civil case for annulment of
petitioner’s marriage to [private complainant] had no
bearing upon the determination of petitioner’s
innocence or guilt in the criminal case for bigamy,
because all that is required for the charge of bigamy to
prosper is that the first marriage be subsisting at the
time the second marriage is contracted.
Thus, under the law, a marriage, even one which is
void or voidable, shall be deemed valid until declared
otherwise in a judicial proceeding. In this case, even if
petitioner eventually obtained a declaration that his
first marriage was void ab initio, the point is, both the
first and the second marriage were subsisting before
the first marriage was annulled.11
In like manner, the Court recently upheld the ruling
in the aforementioned case and ruled that what makes
a person criminally liable for bigamy is when he
contracts a second or subsequent marriage during the
subsistence of a valid first marriage. It further held that
the parties to the marriage should not be permitted to
judge for themselves its nullity, for the same must be
submitted to the judgment of competent courts and
only when the nullity of the marriage is so declared
can it be held as void, and so long as there is no such
declaration the presumption is that the marriage
exists. Therefore, he who contracts a second marriage
before the judicial declaration of the first marriage
assumes the risk of being prosecuted for bigamy.12
Finally, it is a settled rule that the criminal culpability
attaches to the offender upon the commission of the
offense, and from that instant, liability appends to him
until extinguished as provided by law.13 It is clear then
that the crime of bigamy was committed by petitioner
from the time he contracted the second marriage with
private respondent. Thus, the finality of the judicial
declaration of nullity of petitioner’s second marriage
does not impede the filing of a criminal charge for
bigamy against him.
WHEREFORE, premises considered, the petition is
DENIED. The Decision dated February 1, 2008 and
Resolution dated July 24, 2008 of the Court of Appeals
in CA-G.R. CR No. 30444 are hereby AFFIRMED.
SO ORDERED.
Velasco, Jr., (Chairperson), Abad, Mendoza, and
Leonen, JJ., concur.
July 16, 2013
N O T I C E OF J U D G M E N T
Sirs/Mesdames:
Please take notice that on ___July 3, 2013___ a
Decision, copy attached herewith, was rendered by
the Supreme Court in the above-entitled case, the
original of which was received by this Office on July
16, 2013 at 2:30 a.m.
Very truly yours,
(SGD)
LUCITA ABJELINA SORIANO
Division Clerk of Court
ESTAFA

30. People vs. Melissa Chua, GR No. 187052, Sept. 13,

2012

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 187052 September 13, 2012
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs.
MELISSA CHUA a.k.a. Clarita Ng Chua, Accused-
Appellant.
DECISION
VILLARAMA, JR., J.:
Before us is an appeal from the September 15, 2008
Decision1 of the Court of Appeals in CA-G.R. CR-H.C.
No. 01006. The Court of Appeals had affirmed with
modification the Decision2 of the Regional Trial Court
(RTC) of Manila, Bnmch 33, in Criminal Case No. 03-
217999-403. The RTC found appellant Melissa Chua,
a.k.a. Clarita Ng Chua, guilty beyond reasonable doubt
of illegal recruitment in large scale and four counts of
estafa. The Court of Appeals modified the penalty
imposed upon appellant for each count of estafa to an
indeterminate penalty of imprisonment for 4 years and
2 months of prision correccional. as minimum, to 13
years of reclusion temporal, as maximum.
Appellant Melissa Chua was charged on May 6, 2003,
with the crime of illegal recruitment in large scale in
an Information3 which alleged:
That on or about and during the period comprised
between July 29, 2002 and August 20, 2002, both dates
inclusive, in the City of Manila, Philippines, the said
accused, representing herself to have the capacity to
contract, enlist and transport Filipino workers
overseas particularly to Taiwan, did then and there
wilfully, unlawfully, for fee, recruit and promise
employment/job placement to REY P. TAJADAO,
BILLY R. DANAN,4 ROYLAN A. URSULUM and
ALBERTO A. AGLANAO without first having secured
the required license from the Department of Labor and
Employment as required by law, and charge or accept
directly or indirectly from said complainants various
amounts as placement fees in consideration for their
overseas employment, which amounts are in excess of
or greater than that specified in the schedule of
allowable fees prescribed by the POEA, and without
valid reasons and without the fault of said
complainants, failed to actually deploy them and failed
to reimburse expenses incurred in connection with
their documentation and processing for purposes of
their deployment.
Contrary to law.
Appellant was also charged with four counts of estafa
in separate Informations, which, save for the date and
the names of private complainants, uniformly read:
That on or about August 10, 2002, in the City of
Manila, Philippines, the said accused did then and
there wilfully, unlawfully and feloniously defraud
ALBERTO A. AGLANAO in the following manner, to
wit: the said accused, by means of false manifestations
and fraudulent representation which she made to said
ALBERTO A. AGLANAO prior to and even
simultaneous with the commission of the fraud, to the
effect that she has the power and capacity to recruit
and employ the latter in Taiwan as a factory worker
and could facilitate the processing of the pertinent
papers if given the necessary amount to meet the
requirements thereof, induced and succeeded in
inducing the said ALBERTO A. AGLANAO to give
and deliver, as in fact he gave and delivered to the said
accused the amount of ₱ 80,000.00 on the strength of
the said manifestations and representations, said
accused well knowing that the same were false and
fraudulent and were made solely to obtain, as in fact
she did obtain the amount of ₱ 80,000.00 which
amount, once in her possession, with intent to
defraud, they willfully, unlawfully and feloniously
misappropriated, misapplied and converted the same
to her own personal use and benefit, to the damage and
prejudice of said ALBERTO A. AGLANAO in the
aforesaid amount of ₱ 80,000.00, Philippine Currency.
Contrary to law.5
On arraignment, appellant pleaded not guilty to all
charges. A joint trial of the cases ensued.
At the trial, private complainant Rey P. Tajadao
testified that in August 2002, his fellow complainant,
Alberto A. Aglanao, introduced him to appellant
Chua. By then, Aglanao had already submitted his
application for employment abroad with appellant.
Since Tajadao was also interested to work overseas, he
suggested that Tajadao apply as well.
Soon after, Tajadao met with appellant, who offered
him a job as a factory worker in Taiwan for
deployment within the month. Appellant then
required him to undergo medical examination and pay
a placement fee of ₱ 80,000. Chua assured Tajadao that
whoever pays the application fee the earliest can leave
sooner. Thus, Tajadao delivered to appellant staggered
payments of ₱ 40,000, ₱ 35,000 and ₱ 5,000 at the
Golden Gate International (Golden Gate) Office in
Paragon Tower, Ermita, Manila. Said payments are
evidenced by a voucher6 signed by appellant.
After completing payment, Tajadao was made to sign
a contract containing stipulations as to salary and
conditions of work. On several occasions, thereafter,
he returned to appellant’s office to follow-up on his
application. After several visits, however, Tajadao
noticed that all the properties of Golden Gate in its
Paragon Tower Office were already gone.
Tajadao filed a complaint for illegal recruitment
against appellant before the Philippine Overseas
Employment Agency (POEA). It was only then that he
learned that appellant Chua was not licensed to recruit
workers for overseas employment.
Another private complainant, Billy R. Danan, testified
that Chua also offered employment abroad but failed
to deploy him. He recalled meeting appellant on
August 6, 2002 at the Golden Gate Office in Ermita,
Manila. Danan inquired about the prospect of finding
work in Taiwan as a factory worker, and appellant
confirmed there was a standing "job order." The latter
advised Danan to obtain a passport, undergo medical
examination, secure an NBI clearance and prepare the
amount of ₱ 80,000.
On August 10, 2002, Danan paid appellant in full as
evidenced by a cash voucher signed by the latter. A
month passed, however, and he was still unable to
leave for Taiwan. Appellant informed Danan that his
departure would be re-scheduled because Taiwan had
suspended admission of overseas workers until after
the festival. After appellant advanced this explanation
several times, Danan decided to verify whether she
was licensed to recruit.Upon learning otherwise,
Danan lodged a complaint for illegal recruitment
against appellant with the POEA.
The third private complainant, Alberto Aglanao,
testified that he met appellant Chua on August 5, 2002.
Like Tajadao and Danan, Aglanao applied for work as
a factory worker in Taiwan. Appellant similarly
assured Aglanao of employment abroad upon payment
of ₱ 80,000. But despite payment7 of said amount on
August 10, 2002, appellant failed to deploy Aglanao to
Taiwan.
Roylan Ursulum,8 the fourth private complainant,
testified that he too went to the Golden Gate Office in
Ermita, Manila to seek employment as a factory
worker. He was introduced by Shirley Montano to
appellant Chua. The latter told Ursulum that the first
applicants to pay the placement fee of ₱ 80,000 shall
be deployed ahead of the others. Thus, Ursulum
obtained a loan of ₱ 80,000 to cover the placement fee,
which he allegedly gave appellant in two installments
of ₱ 40,000 each. As with the rest of the private
complainants, Ursulum never made it to Taiwan.
Ursulum did not submit proof of payment but
presented, instead, ten text messages on his mobile
phone supposedly sent by appellant. One of said text
messages reads, "Siguro anong laking saya nyo pag
namatay na ko."
The prosecution likewise presented as witness
Severino Maranan, Senior Labor Employment Officer
of the POEA. Maranan confirmed that appellant Chua
was neither licensed nor authorized to recruit workers
for overseas employment. In support, he presented to
the court a certification issued by the POEA to that
effect.
In her defense, appellant Chua denies having recruited
private complainants for overseas employment.
According to appellant, she was only a cashier at
Golden Gate, which is owned by Marilen Callueng.
However, she allegedly lost to a robbery her
identification card evidencing her employment with
the agency. Appellant denied any knowledge of
whether the agency was licensed to recruit workers
during her tenure as it has been delisted.
In a Decision dated March 28, 2005, the RTC of
Manila, Branch 33, found appellant Melissa Chua,
a.k.a. Clarita Ng Chua, guilty beyond reasonable doubt
of illegal recruitment in large scale and four counts of
estafa. The fallo of the RTC decision reads:
WHEREFORE, the prosecution having established the
guilt of the accused beyond reasonable doubt,
judgment is hereby rendered CONVICTING the
accused as principal in the crime of illegal recruitment
in large scale and estafa (four counts) and she is
sentenced to suffer the penalty of LIFE
IMPRISONMENT and a fine of Five Hundred
Thousand Pesos (Php500,000.00) for illegal
recruitment in large scale; and the indeterminate
penalty of four (4) years and two (2) months of prision
correccional, as minimum, to Twelve (12) years of
prision mayor as maximum for EACH count of Estafa.
The accused is also ordered to pay each of the
complainant[s] the amount of ₱ 80,000.00.
In the service of the sentence, the accused is credited
with a x x x the full extent of her preventive
imprisonment if she agrees in writing to observe the
same disciplinary rules imposed upon convicted
prisoners; otherwise, only 4/5 of the time of such
preventive imprisonment shall be credited to her.
SO ORDERED.9
The trial court relied on the testimony of Severino
Maranan, Senior Labor Employment Officer of the
POEA, that appellant is not licensed to recruit workers
for overseas employment at the time she promised but
failed to place the four private complainants for work
abroad. It accorded greater weight to the testimonies
of private complainants who positively identified
appellant as the person who recruited them for
employment in Taiwan and received the placement
fees.
The court a quo likewise found appellant guilty
beyond reasonable doubt of estafa for misrepresenting
herself as having the power and capacity to recruit and
place private complainants as factory workers in
Taiwan. Such misrepresentation, the trial court
stressed, induced private complainants to part with
their money. The RTC brushed aside appellant’s
defense that she was merely a cashier of Golden Gate
and that the same is owned by Marilen Callueng. It
gave little weight to the receipts submitted by
appellant to prove that she turned over the placement
fees to Callueng. The trial court observed nothing in
said receipts indicating that the money came from
private complainants.
Dissatisfied, appellant Chua filed a Notice of
Appeal10 on April 15, 2005.
By Decision dated September 15, 2008, the Court of
Appeals affirmed with modification the RTC ruling. It
modified the penalty for each of the four counts of
estafa by imposing upon appellant an indeterminate
sentence of 4 years and 2 months of prision
correccional, as minimum, to 13 years of reclusion
temporal, as maximum, for each count of estafa.
The appellate court held that the prosecution has
established by proof beyond reasonable doubt that
appellant had no license to recruit at the time she
promised employment to and received placement fees
from private complainants. It dismissed appellant’s
defense that she was only a cashier of Golden Gate and
that she remitted the placement fees to "the agency’s
treasurer." The Court of Appeals explained that in
order to hold a person liable for illegal recruitment, it
is enough that he or she promised or offered
employment for a fee, as appellant did.
The appellate court held further that the same pieces
of evidence which establish appellant’s commission of
illegal recruitment also affirm her liability for estafa. It
pointed out that appellant defrauded private
complainants when she misrepresented that they
would be hired abroad upon payment of the placement
fee. The Court of Appeals perceived no ill motive on
the part of private complainants to testify falsely
against appellant.
Lastly, the appellate court modified the penalty
imposed by the trial court upon appellant Chua for
each count of estafa. It raised the maximum period of
appellant’s indeterminate sentence from 12 years of
prision mayor to 13 years of reclusion temporal.
On October 6, 2008, appellant Chua elevated the case
to this Court byfiling a Notice of Appeal.11
In a Resolution12 dated July 1, 2009, we required the
parties to file their respective supplemental briefs, if
they so desire. On August 26, 2009, appellant Chua
filed a Manifestation (In lieu of Supplemental
Brief)13 by which she repleaded and adopted all the
defenses and arguments raised in her Appellant’s
Brief.14 On September 3, 2009, the Office of the
Solicitor
General, for the People, filed a Manifestation15 that it
will no longer file a supplemental brief since it has
discussed in its Appellee’s Brief16 all the matters and
issues raised in the Appellant’s Brief.
Before us, appellant Melissa Chua presents a lone
assignment of error:
THE TRIAL COURT GRAVELY ERRED IN FINDING
THE ACCUSED-APPELLANT GUILTY OF THE
OFFENSE OF ILLEGAL RECRUITMENT IN LARGE
SCALE AND FOUR (4) COUNTS OF ESTAFA
DESPITE THE INSUFFICIENCY OF THE EVIDENCE
FOR THE PROSECUTION.17
The Office of the Solicitor General, for the people,
submits that it has established all the elements
necessary to hold appellant Chua liable for illegal
recruitment in large scale and estafa. It cites the
testimony of Severino Maranan, Senior Labor
Employment Officer of the POEA, and the
certification issued by Felicitas Q. Bay, Director II of
the POEA, to the effect that appellant was not
authorized to engage in recruitment activities.The
OSG argues against appellant’s defense that she was
only a cashier of Golden Gate on the argument that
her act of representing to the four private
complainants that she could send them to Taiwan as
factory workers constitutes recruitment. It stresses
that the crime of illegal recruitment in large scale is
malum prohibitum; hence, mere commission of the
prohibited act is punishable and criminal intent is
immaterial. Lastly, the OSG points out that appellant
failed to show any ill motive on the part of private
complainants to testify falsely against her.
For her part, appellant Chua maintains that she was
merely a cashier of Golden Gate International. She
disowns liability for allegedly "merely acting under
the direction of her superiors"18 and for being
"unaware that her acts constituted a
crime."19 Appellant begs the Court to review the
factual findings of the court a quo.
The crime of illegal recruitment is defined and
penalized under Sections 6 and 7 of Republic Act
(R.A.) No. 8042, or the Migrant Workers and Overseas
Filipinos Act of 1995, as follows:
SEC. 6. Definition. – For purposes of this Act, illegal
recruitment shall mean any act of canvassing,
enlisting, contracting, transporting, utilizing, hiring,
or procuring workers and includes referring, contract
services, promising or advertising for employment
abroad, whether for profit or not, when undertaken by
a non-licensee or non-holder of authority
contemplated under Article 13 (f) of Presidential
Decree No. 442, as amended, otherwise known as the
Labor Code of the Philippines: Provided, That any
such non-licensee or non-holder who, in any manner,
offers or promises for a fee employment abroad to two
or more persons shall be deemed so engaged. It shall
likewise include the following acts, x x x:
xxxx
Illegal recruitment is deemed committed by a
syndicate if carried out by a group of three (3) or more
persons conspiring or confederating with one another.
It is deemed committed in large scale if committed
against three (3) or more persons individually or as a
group.
The persons criminally liable for the above offenses
are the principals, accomplices and accessories. In case
of juridical persons, the officers having control,
management or direction of their business shall be
liable.
SEC. 7. Penalties. –
(a) Any person found guilty of illegal recruitment shall
suffer the penalty of imprisonment of not less than six
(6) years and one (1) day but not more than twelve (12)
years and a fine of not less than Two hundred
thousand pesos (₱ 200,000.00) nor more than Five
hundred thousand pesos (₱ 500,000.00).
(b) The penalty of life imprisonment and a fine of not
less than Five hundred thousand pesos (₱ 500,000.00)
nor more than One million pesos (₱ 1,000,000.00) shall
be imposed if illegal recruitment constitutes economic
sabotage as defined herein.
Provided, however, That the maximum penalty shall
be imposed if the person illegally recruited is less than
eighteen (18) years of age or committed by a non-
licensee or non-holder of authority.
In order to hold a person liable for illegal recruitment,
the following elements must concur: (1) the offender
undertakes any of the activities within the meaning of
"recruitment and placement" under Article 13(b)20 of
the Labor Code, or any of the prohibited practices
enumerated under Article
3421 of the Labor Code (now Section 6 of Republic Act
No. 8042) and (2) the offender has no valid license or
authority required by law to enable him to lawfully
engage in recruitment and placement of workers.22 In
the case of illegal recruitment in large scale, a third
element is added: that the offender commits any of the
acts of recruitment and placement against three or
more persons, individually or as a group.23 All three
elements are present in the case at bar.
Inarguably, appellant Chua engaged in recruitment
when she represented to private complainants that she
could send them to Taiwan as factory workers upon
submission of the required documents and payment of
the placement fee. The four private complainants
positively identified appellant as the person who
promised them employment as factory workers in
Taiwan for a fee of ₱ 80,000. More importantly,
Severino Maranan the Senior Labor Employment
Officer of the POEA, presented a Certification dated
December 5, 2002, issued by Director Felicitas Q. Bay,
to the effect that appellant Chua is not licensed by the
POEA to recruit workers for overseas employment.
The Court finds no reason to deviate from the findings
and conclusions of the trial court and appellate court.
The prosecution witnesses were positive and
categorical in their testimonies that they personally
met appellant and that the latter promised to send
them abroad for employment.
In fact, the substance of their testimonies corroborate
each other on material points, such as the amount of
the placement fee, the country of destination and the
nature of work. Without any evidence to show that
private complainants were propelled by any ill motive
to testify falsely against appellant, we shall accord
their testimonies full faith and credit. After all, the
doctrinal rule is that findings of fact made by the trial
court, which had the opportunity to directly observe
the witnesses and to determine the probative value of
the other testimonies, are entitled to great weight and
respect because the trial court is in a better position to
assess the same, an opportunity not equally open to the
appellate court.24 The absence of any showing that the
trial court plainly overlooked certain facts of substance
and value that, if considered, might affect the result of
the case, or that its assessment was arbitrary, impels
the Court to defer to the trial court’s determination
according credibility to the prosecution evidence.25
Appellant cannot escape liability by conveniently
limiting her participation as a cashier of Golden Gate.
The provisions of Article 13(b) of the Labor Code and
Section 6 of R.A. No. 8042 are unequivocal that illegal
recruitment may or may not be for profit. It is
immaterial, therefore, whether appellant remitted the
placement fees to "the agency’s treasurer" or
appropriated them. The same provision likewise
provides that the persons criminally liable for illegal
recruitment are the principals, accomplices and
accessories. Just the same, therefore, appellant can be
held liable as a principal by direct participation since
she personally undertook the recruitment of private
complainants without a license or authority to do so.
Worth stressing, the Migrant Workers and Overseas
Filipinos Act of 1995 is a special law, a violation of
which is malum prohibitum, not mala in se. Intent is
thus, immaterial26 and mere commission of the
prohibited act is punishable.
Furthermore, we agree with the appellate court that
the same pieces of evidence which establish
appellant’s liability for illegal recruitment in large
scale likewise confirm her culpability for estafa.
It is well-established in jurisprudence that a person
may be charged and convicted for both illegal
recruitment and estafa. The reason therefor is not hard
to discern: illegal recruitment is malum prohibitum,
while estafa is mala in se. In the first, the criminal
intent of the accused is not necessary for conviction.
In the second, such intent is imperative. Estafa under
Article 315, paragraph 2(a) of the Revised Penal Code
is committed by any person who defrauds another by
using fictitious name, or falsely pretends to possess
power, influence, qualifications, property, credit,
agency, business or imaginary transactions, or by
means of similar deceits executed prior to or
simultaneously with the commission of fraud.27
The elements of estafa by means of deceit are the
following: (a) that there must be a false pretense or
fraudulent representation as to his power, influence,
qualifications, property, credit, agency, business or
imaginary transactions; (b) that such false pretense or
fraudulent representation was made or executed prior
to or simultaneously with the commission of the fraud;
(c) that the offended party relied on the false pretense,
fraudulent act, or fraudulent means and was induced
to part with his money or property; and (d) that, as a
result thereof, the offended party suffered damage.28
In this case, the prosecution has established that
appellant defrauded the complaining witnesses by
leading them to believe that she has the capacity to
send them to Taiwan for work, even as she does not
have a license or authority for the purpose. Such
misrepresentation came before private complainants
delivered ₱ 80,000 as placement fee to appellant.
Clearly, private complainants would not have parted
with their money were it not for such enticement by
appellant. As a consequence of appellant’s false
pretenses, the private complainants suffered damages
as the promised employment abroad never
materialized and the money they paid were never
recovered.29
In an effort to exculpate herself, appellant presented
in evidence 11 vouchers30 amounting to ₱ 314,030,
which was allegedly received by Marilen Callueng, the
supposed owner of Golden Gate. Notably, the dates on
which said vouchers were issued and the amounts
purportedly remitted to Callueng by way thereof do
not correspond with the placement fee given by
private complainants and the dates on which they paid
the same to appellant. For instance, private
complainants Aglanao and Danan delivered ₱ 80,000
to appellant on August 10, 2002 but none of the
vouchers presented by appellant was issued on said
date. On August 20, 2002, private complainant Tajadao
paid ₱ 40,000 to appellant but the latter’s voucher for
said date covers only ₱ 22,480. More importantly,
there is nothing in appellant’s vouchers to indicate
that the amounts listed therein were received from
private complainants. On the other hand, while the
vouchers presented by private complainants Aglanao,
Danan and Tajadao do not bear their names, they
could not have come into possession of said form
except through appellant. Hence, appellant admitted
in open court that she received ₱ 80,000 from private
complainants and that she was authorized to issue
receipts, thus:
ATTY: BETIC:
Q: Were you authorized to issue receipts in behalf of
that Agency?
A: yes, Sir.
xxxx
Q: Now, you said that you were employed with
Golden Gate Agency owned and operated by Marilen
Callueng, and as a cashier did you happen to come
across private complainants, Billy R. Da[n]an, Alberto
Aglanao and Rey Tajadao?
A: Yes, Sir before they were asked to sign a contract
they paid to me.
Q: Do you know how much were paid or given by the
persons I have mentioned?
A: Eighty Thousand Pesos Only (₱ 80,000.00) Sir.
Q: Each?
A: Yes, Sir.31
Be that as it may, we take exception as regards private
complainant Roylan Ursulum. The Court finds that
the prosecution failed to establish the presence of the
third and fourth elements of estafa as regards the
incident with Roylan Ursulum. While Ursulum claims
that he delivered to Chua two installments of ₱ 40,000
each on July 29, 2002 and August 3, 2002, he failed to
produce receipts to substantiate the same. Instead,
Ursulum relies on ten text messages allegedly sent by
appellant as evidence of their transaction. Out of said
series of messages, Ursulum presented only one which
reads, "Siguro anong laking saya nyo pag namatay na
ko." Notably, the prosecution did not present evidence
to confirm whether said text message actually
emanated from appellant. Assuming arguendo that it
did, still, said message alone does not constitute proof
beyond reasonable doubt that appellant was able to
obtain ₱ 80,000 from Ursulum as a result of her false
pretenses.
Unlike in illegal recruitment where profit is
immaterial, a conviction for estafa requires a clear
showing that the offended party parted with his
money or property upon the offender’s false pretenses,
and suffered damage thereby. In every criminal
prosecution, the State must prove beyond reasonable
doubt all the elements of the crime charged and the
complicity or participation of the accused.32 It is
imperative, therefore, that damage as an element of
estafa under Article 315, paragraph 2(a) be proved as
conclusively as the offense itself. The failure of the
prosecution to discharge this burden concerning the
estafa allegedly committed against Ursulum warrants
the acquittal of appellant on the said charge.
Now on the matter of the appropriate penalty. Under
Section 6, R.A. No. 8042, illegal recruitment when
committed in large scale shall be considered as an
offense involving economic sabotage. Accordingly, it
shall be punishable by life imprisonment and a fine of
not less than ₱ 500,000 nor more than ₱ 1,000,000. The
law provides further that the maximum penalty shall
be imposed if illegal recruitment is committed by a
non-licensee or non-holder of authority.
In the case at bar, the trial court imposed upon
appellant Chua the penalty of life imprisonment and a
fine of ₱ 500,000. However, considering that appellant
is a non-licensee or non-holder of authority, we deem
it proper to impose upon her the maximum penalty of
life imprisonment and fine of ₱ 1,000,000.
Meanwhile, the penalty for estafa under Article 315 of
the Revised Penal Code is prision correccional in its
maximum period to prision mayor in its minimum
period, if the amount of the fraud is over ₱ 12,000 but
does not exceed ₱ 22,000. If the amount exceeds ₱
22,000, the penalty shall be imposed in its maximum
period, adding one year for each additional ₱ 10,000.
But, the total penalty imposed shall not exceed 20
years.
The range of penalty provided for in Article 315 is
composed of only two periods.1âwphi1 Thus, to get
the maximum period of the indeterminate sentence,
the total number of years included in the two periods
should be divided into three equal periods of time,
forming one period for each of the three portions. The
maximum, medium and minimum periods of the
prescribed penalty are therefore:
Minimum period - 4 years, 2 months and 1 day to 5
years, 5 months and 10 days
Medium period - 5 years, 5 months and 11 days to 6
years, 8 months and 20 days
Maximum period - 6 years, 8 months and 21 days to 8
years.33
In this case, the amount by which appellant defrauded
private complainants Aglanao, Danan and Tajadao is ₱
80,000, which exceeds ₱ 22,000. Hence, the penalty
should be imposed in the maximum period of 6 years,
8 months and 21 days to 8 years. Since the total
amount of fraud in this case exceeds the threshold
amount of ₱ 22,000 by ₱ 58,000, an additional penalty
of five years imprisonment should be imposed. Thus,
the maximum period of appellant's indeterminate
sentence should be 13 years of reclusion temporal.
The minimum period of the indeterminate sentence,
on the other hand, should be within the nmge
ofpenaity next lower to that prescribed by Article 315,
paragraph 2(a) of the Revised Penal Code for the crime
committed.The penalty next lower to prision
correccional maximum to prision mayor minimum is
prision correccional minimum (6 months and 1 day to
2 years and 4 months) to prision correccional medium
(2 years, 4 months and 1 day to 4 years and 2 months).
Thus, the appellate court correctly modified the
minirnum period of appellant's sentence to 4 years and
2 months of prision correccional.
WHEREFORE, the appeal is PARTLY GRANTED.
Appellant Melissa Chua, a.k.a. Clarita Ng Chua is
ACQUITTED of one count of estafa filed by private
complainant Roylan Ursulum in Criminal Case No. 03-
21 7999-403.
The Decision dated September I5, 2008 of the Court of
Appeals in CA-G.R. CR-H.C. No. 01006 is AFFIRMED
with MODIFICATION in that the appellant is ordered
to pay a fine of ₱ 1,000,000 and to indemnify each of
the private complainants Alberto A. Aglanao, Billy R.
Danan and Rey P. Tajadao in the amount of P-80,000.
With costs against the accused-appellant.
SO ORDERED.
MARTIN S. VILLARAMA, JR.
Associated Justice
WE CONCUR:
MARIA LOURDES P. A. SERENO
Chief Justice
Chairperson
TERESITA J.
LEONARDO-DE LUCAS P. BERSAMIN
CASTRO Associate Justice
Associate Justice
BIENVENIDO L. REYES
Associate Justice
CERTIFICATION
Pursuant to Section 13, Article VIJI of the
Constitution, r cet1ify that the conclusions in the
above Decision had been reached in consultation
before the case was assigned to the writer of the
opinion of the Court's Division.
MARIA LOURDES P. A. SERENO
Chief Justice
31. Fernando Espino vs. People, GR No. 188217, July 3,
2013

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 188217 July 3, 2013
FERNANDO M. ESPINO, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
SERENO, CJ.:
This is a Rule 45 Petition for Review assailing the
Court of Appeals (CA) Decision1 dated 24 February
2009 in CA-G.R. CR. No. 31106, which affirmed the
Regional Trial Court (RTC) Decision2 in Criminal Case
Nos.02-01226 to 31 convicting the accused of estafa
under Article 315, paragraph 2(a); and the CA
Resolution3 dated 25 May 2009 denying the Motion
for Reconsideration of the accused in the same case.
The RTC decided on the basis of the following facts:
The accused was a senior sales executive in charge of
liaising with import coordinators of the company
Kuehne and Nagel, Inc. (KN lnc.).4 His duties included
the delivery of its commissions to the import
coordinators.5
On 14 October 2002, the Fiscal’s Office of Paranaque
charged the accused with six (6) counts of estafa under
Article 315, paragraph 1(b) for allegedly rediscounting
checks that were meant to be paid to the company’s
import coordinators.6
During trial, the prosecution presented witnesses who
testified to the fact that the endorsements of the payee
on six checks were forged,7 and that the checks were
rediscounted by the accused’s aunt-in-law.8 She later
testified to her participation in the rediscounting and
encashment of the checks.9
The accused testified for himself, claiming that what
precipitated the charges was his employer’s discontent
after he had allegedly lost an account for the
company.10 He was eventually forced to resign and
asked to settle some special arrangements with
complainant.11 Alongside being made to submit the
resignation, he was also asked to sign a sheet of paper
that only had numbers written on it.12 He complied
with these demands under duress, as pressure was
exerted upon him by complainants.13 Later on, he filed
a case for illegal dismissal,14 in which he denied having
forged the signature of Mr. Banaag at the dorsal
portion of the checks.15
In rebuttal, the prosecution presented the testimony
of the aunt-in-law of the accused, to prove that the
accused had called her to ask if she could rediscount
some checks, and that she agreed to do so upon his
assurance that he knew the owner of those checks.16
After trial, the RTC convicted the accused of estafa
under Article 315, paragraph 2(a).17 In response, he
filed a Motion for Reconsideration,18 arguing that the
trial court committed a grave error in convicting him
of estafa under paragraph 2(a), which was different
from paragraph 1(b) of Article 315 under which he had
been charged. He also alleged that there was no
evidence to support his conviction.19 Thus, he
contended that his right to due process of law was
thereby violated.20
In turn, the prosecution argued that jurisprudence had
established that the nature and character of the crime
charged are determined by the facts alleged in the
information, and not by a reference to any particular
section of the law.21 Subsequently, the RTC denied the
Motion.22
The accused then elevated the case to the CA23 on the
same grounds that he cited in his Motion, but it denied
his appeal,24 stating that the alleged facts sufficiently
comprise the elements of estafa as enumerated in
Article 315, paragraph 2(a).25 His subsequent Motion
for Reconsideration was likewise dismissed.
The accused thus filed this Petition for Review under
Rule 45.
In the present Petition, the accused raises his right to
due process.26 Specifically, he claims that he was
denied due process when he was convicted of estafa
under Article 315, paragraph 2(a) of the Revised Penal
Code (RPC) despite being charged with estafa under
Article 315, paragraph 1(b).27 He argues that the
elements constituting both modes of estafa are
different, and that this difference should be reflected
in the Information.28 According to him, a charge
under paragraph 1(b) would not merit a conviction
under paragraph 2(a).29 Thus, he emphasizes the
alleged failure to inform him of the nature and cause
of the accusation against him.30
The issue that must be determined is whether a
conviction for estafa under a different paragraph from
the one charged is legally permissible.
Article 3, Section 14, paragraph 2 of the 1987
Constitution, requires the accused to be "informed of
the nature and cause of the accusation against him" in
order to adequately and responsively prepare his
defense. The prosecutor is not required, however, to
be absolutely accurate in designating the offense by its
formal name in the law. As explained by the Court in
People v. Manalili:
It is hornbook doctrine, however, that "what
determines the real nature and cause of the accusation
against an accused is the actual recital of facts stated in
the information or complaint and not the caption or
preamble of the information or complaint nor the
specification of the provision of law alleged to have
been violated, they being conclusions of law." x x x.
(Emphasis supplied)31
This doctrine negates the due process argument of the
accused, because he was sufficiently apprised of the
facts that pertained to the charge and conviction for
estafa.
First, while the fiscal mentioned Article 315 and
specified paragraph 1(b), the controlling words of the
Information are found in its body. Accordingly, the
Court explained the doctrine in Flores v. Layosa as
follows:
The Revised Rules of Criminal Procedure provides
that an information shall be deemed sufficient if it
states, among others, the designation of the offense
given by the statute and the acts of omissions
complained of as constituting the offense. However,
the Court has clarified in several cases that the
designation of the offense, by making reference to the
section or subsection of the statute punishing, it [sic]
is not controlling; what actually determines the nature
and character of the crime charged are the facts alleged
in the information. The Court’s ruling in U.S. v. Lim
San is instructive:
x x x Notwithstanding the apparent contradiction
between caption and body, we believe that we ought
to say and hold that the characterization of the crime
by the fiscal in the caption of the information is
immaterial and purposeless, and that the facts stated in
the body of the pleading must determine the crime of
which the defendant stands charged and for which he
must be tried. The establishment of this doctrine is
permitted by the Code of Criminal Procedure, and is
thoroughly in accord with common sense and with the
requirements of plain justice x x x. (Emphases
supplied)32
Clearly, the fiscal’s statement in the Informations
specifying the charges as estafa under Article 315,
paragraph 1(b) of the RPC,33 did not bind the trial
court insofar as the characterization of the nature of
the accusation was concerned. The statement never
limited the RTC’s discretion to read the Information
in the context of the facts alleged. The Court further
explains the rationale behind this discretion in this
manner:
From a legal point of view, and in a very real sense, it
is of no concern to the accused what is the technical
name of the crime of which he stands charged. It in no
way aids him in a defense on the merits. Whatever its
purpose may be, its result is to enable the accused to
vex the court and embarrass the administration of
justice by setting up the technical defense that the
crime set forth in the body of the information and
proved in the trial is not the crime characterized by
the fiscal in the caption of the information. That to
which his attention should be directed, and in which
he, above all things else, should be most interested, are
the facts alleged. The real question is not did he
commit a crime given in the law some technical and
specific name, but did he perform the acts alleged in
the body of the information in the manner therein set
forth. If he did, it is of no consequence to him, either
as a matter of procedure or of substantive right, how
the law denominates the crime which those acts
constitute. The designation of the crime by name in
the caption of the information from the facts alleged
in the body of that pleading is a conclusion of law
made by the fiscal. In the designation of the crime the
accused never has a real interest until the trial has
ended. For his full and complete defense he need not
know the name of the crime at all. It is of no
consequence whatever for the protection of his
substantial rights... If he performed the acts alleged, in
the manner, stated, the law determines what the name
of the crime is and fixes the penalty therefore. It is the
province of the court alone to say what the crime is or
what it is named x x x. (Emphases supplied)34
Any doubt regarding the matter should end with the
Court’s conclusion:
Thus, notwithstanding the discrepancy between the
mode of commission of the estafa as alleged in the
Information (which states that petitioners committed
estafa under Article 315), or as claimed by the People
in their Comment (that petitioners committed estafa
under Article 318) and the absence of the words
"fraud" or "deceit" in the Information, the Court agrees
with the Sandiganbayan and the RTC that the factual
allegations therein sufficiently inform petitioners of
the acts constituting their purported offense and
satisfactorily allege the elements of estafa in general
committed through the offense of falsification of
public document. As the Sandiganbayan correctly
held:
Every element of which the offense is composed must
be alleged in the complaint or information by making
reference to the definition and the essentials of the
specific crimes. This is so in order to fully apprise the
accused of the charge against him and for him to
suitably prepare his defense since he is presumed to
have no independent knowledge of the facts that
constitute the offense. It is not necessary, however,
that the imputations be in the language of the statute.
What is important is that the crime is described in
intelligible and reasonable certainty. (Emphasis
supplied)35
Moreover, the Court declared that in an information
for estafa, the use of certain technical and legal words
such as "fraud" or "deceit," is not necessary to make a
proper allegation thereof.36
Thus, the only important question left to be answered
is whether the facts in the Information do indeed
constitute the crime of which the accused was
convicted. In other words, was the RTC correct in
convicting him of estafa under Article 315, paragraph
2(a) instead of paragraph 1(b)? The answer to this
question, however, requires further reflection.
The crime charged was estafa under Article 315,
paragraph 1(b) of the Revised Penal Code. Its elements
are as follows: (1) that money, goods, or other personal
properties are received by the offender in trust, or on
commission, or for administration, or under any other
obligation involving the duty to make delivery of, or
to return, the same; (2) that there is a misappropriation
or conversion of such money or property by the
offender or a denial of the receipt thereof; (3) that the
misappropriation or conversion or denial is to the
prejudice of another; and (4) that there is a demand
made by the offended party on the offender.37
However, the crime the accused was convicted of was
estafa under Article 315, paragraph 2(a). The elements
of this crime are as follows: (1) that there is a false
pretense, fraudulent act or fraudulent means; (2) that
the false pretense, fraudulent act or fraudulent means
is made or executed prior to or simultaneously with
the commission of the fraud; (3) that the offended
party relies on the false pretense, fraudulent act, or
fraudulent means, that is, he is induced to part with
his money or property because of the false pretense,
fraudulent act, or fraudulent means and (4) that as a
result thereof, the offended party suffered damage.38
The six Informations are all similar in content except
in the amounts and the check numbers. One of them
reads as follows:
That on or about the 17th day of July, 2000, in the City
of Paranaque, Philippines and within the jurisdiction
of this Honorable Court, the above-named accused,
being then the Senior Sales Executive of the
complainant Kuehne and Nagel Inc. herein
represented by Honesto Raquipiso, tasked with
liasoning with the import coordinators of the
complainant’s various clients including the delivery of
their commissions, said accused received in trust from
the complainant Metrobank check no. 1640443816 in
the amount of ₱12,675.00 payable to Mr. Florante
Banaag, import coordinator of Europlay, with the
obligation to deliver the same but said accused failed
to deliver said check in the amount of ₱12,675.00 and
instead, once in possession of the same, forged the
signature of Mr. Banaag and had the check
rediscounted and far from complying with his
obligation, despite demands to account and/or remit
the same, with unfaithfulness and/or abuse of
confidence, did then and there willfully, unlawfully
and feloniously misappropriate, misapply and convert
the proceeds thereof to his own personal use and
benefit, to the damage and prejudice of the said
complainant, in the amount of ₱12,675.00.39
Are the elements of estafa under paragraph 2(a)
present in the above-quoted Information? Arguably
so, because the accused represented to the injured
party that he would be delivering the commission to
Mr. Banaag; and because of this representation, KN
Inc. turned over checks payable to Mr. Banaag to the
accused. In turn, the accused rediscounted the checks
for money, to the detriment of both Mr. Banaag and
KN Inc. However, this set of facts seems to miss the
precision required of a criminal conviction. Estafa
under paragraph 2(a) is swindling by means of false
pretense, and the words of the law bear this out:
Article 315.
xxxx
2. By means of any of the following false pretenses or
fraudulent acts executed prior to or simultaneously
with the commission of the fraud:
(a) By using fictitious name, or falsely pretending to
possess power, influence, qualifications, property,
credit, agency, business or imaginary transactions, or
by means of other similar deceits. x x x.
In this case, there was no use of a fictitious name, or a
false pretense of power, influence, qualifications,
property, credit, agency, or business. At the most, the
situation could be likened to an imaginary transaction,
although the accused was already trusted with the
authority to deliver commissions to Mr. Banaag. The
pretense was in representing to the injured party that
there was a deliverable commission to Mr. Banaag,
when in fact there was none.1âwphi1
Instead of unduly stretching this point, the Court
deems it wiser to give the offense its true, formal name
– that of estafa through abuse of confidence under
paragraph 1(b).
Paragraph 1(b) provides liability for estafa committed
by misappropriating or converting to the prejudice of
another money, goods, or any other personal property
received by the offender in trust or on commission, or
for administration, or under any other obligation
involving the duty to make delivery of or to return the
same, even though that obligation be totally or
partially guaranteed by a bond; or by denying having
received such money, goods, or other property. This at
least, is very clearly shown by the factual allegations
of the Informations.
First, personal property in the form of the checks was
received by the offender in trust or on commission,
with the duty to deliver it to Mr. Banaag. Even though
the accused misrepresented the existence of a
deliverable commission, it is a fact that he was obliged
by KN Inc., the injured party, to deliver the check and
account for it. Second, the accused rediscounted the
checks to his aunt-in-law. Third, this rediscounting
resulted in the wrongful encashment of the checks by
someone who was not the payee and therefore not
lawfully authorized to do so. Finally, this wrongful
encashment prejudiced KN Inc., which lost the
proceeds of the check. When accounting was
demanded from the accused, he could not conjure any
justifiable excuse. His series of acts precisely
constitutes estafa under Article 315, paragraph 1 (b).
Nevertheless, this Court need not make such a detailed
and narrow analysis. In llagan v. Court of Appeals, it
stated that estafa can be committed by means of both
modes of commission in the following way:
x x x Estafa can be committed with the attendance of
both modes of commission, that is, abuse of confidence
and deceit employed against the same victim and
causing damage to him. Thus, where an agent
deliberately misrepresented to the landowner the real
position of the prospective buyer of the land in order
to induce said owner to agree to a lower price and,
thereafter, the agent sold the land for the higher
amount which was actually agreed upon by him and
the buyer, and he then clandestinely misappropriated
the excess, the crime of estafa was committed under
both modes and he could be charged under either.
(Emphases supplied)40
The above discussion leads to the conclusion that the
Information in this case may be interpreted as
charging the accused with both estafa under paragraph
1 (b) and estafa under paragraph 2(a). It is a basic and
fundamental principle of criminal law that one act can
give rise to two offenses,41 all the more when a single
offense has multiple modes of commission. Hence, the
present Petition cannot withstand the tests for review
as provided by jurisprudential precedent. While the
designation of the circumstances attending the
conviction for estafa could have been more precise,
there is no reason for this Court to review the findings
when both the appellate and the trial courts agree on
the facts. We therefore adopt the factual findings of
the lower courts in totality, bearing in mind the
credence lent to their appreciation of the evidence.
WHEREFORE, premises considered, the instant
Petition is hereby DENIED. The assailed Decision
dated 24 February 2009 and Resolution dated 25 May
2009 of the Court of Appeals in CA-G.R. CR. No.
31106 are AFFIRMED.
SO ORDERED.
MARIA LOURDES P. A. SERENO
Chief Justice, Chairperson
WE CONCUR:
TERESITA J. LEONARDO-DE CASTRO
Associate Justice
MARTIN S.
LUCAS P. BERSAMIN
VILLARAMA, JR.
Associate Justice
Associate Justice
BIENVENIDO L. REYES
Associate Justice
CERTIFICATION
Pursuant to Section 13, Article VIII of the
Constitution, I certify that the conclusions in the
above Decision had been reached in consultation
before the case was assigned to the writer of the
opinion of the Court's Division.
MARIA LOURDES P. A. SERENO
Chief Justice
32. People vs. Gelbert Reyes Wagas, GR No. 157943,
Sept. 4, 2013

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 157943 September 4, 2013
PEOPLE OF THE PHILIPPINES, PLAINTIFF-
APPELLEE,
vs.
GILBERT REYES WAGAS, ACCUSED-APPELLANT.
DECISION
BERSAMIN, J.:
The Bill of Rights guarantees the right of an accused to
be presumed innocent until the contrary is proved. In
order to overcome the presumption of innocence, the
Prosecution is required to adduce against him nothing
less than proof beyond reasonable doubt. Such proof is
not only in relation to the elements of the offense, but
also in relation to the identity of the offender. If the
Prosecution fails to discharge its heavy burden, then it
is not only the right of the accused to be freed, it
becomes the Court’s constitutional duty to acquit him.
The Case
Gilbert R. Wagas appeals his conviction for estafa
under the decision rendered on July 11, 2002 by the
Regional Trial Court, Branch 58, in Cebu City (RTC),
meting on him the indeterminate penalty of 12 years
of prision mayor, as minimum, to 30 years of reclusion
perpetua, as maximum.
Antecedents
Wagas was charged with estafa under the information
that reads:
That on or about the 30th day of April, 1997, and for
sometime prior and subsequent thereto, in the City of
Cebu, Philippines, and within the jurisdiction of this
Honorable Court, the said accused, with deliberate
intent, with intent to gain and by means of false
pretenses or fraudulent acts executed prior to or
simultaneously with the commission of the fraud, to
wit: knowing that he did not have sufficient funds
deposited with the Bank of Philippine Islands, and
without informing Alberto Ligaray of that
circumstance, with intent to defraud the latter, did
then and there issue Bank of the Philippine Islands
Check No. 0011003, dated May 08, 1997 in the amount
of ₱200,000.00, which check was issued in payment of
an obligation, but which check when presented for
encashment with the bank, was dishonored for the
reason "drawn against insufficient funds" and inspite
of notice and several demands made upon said accused
to make good said check or replace the same with cash,
he had failed and refused and up to the present time
still fails and refuses to do so, to the damage and
prejudice of Alberto Ligaray in the amount
aforestated.
CONTRARY TO LAW.1
After Wagas entered a plea of not guilty,2 the pre-trial
was held, during which the Defense admitted that the
check alleged in the information had been dishonored
due to insufficient funds.3 On its part, the Prosecution
made no admission.4
At the trial, the Prosecution presented complainant
Alberto Ligaray as its lone witness. Ligaray testified
that on April 30, 1997, Wagas placed an order for 200
bags of rice over the telephone; that he and his wife
would not agree at first to the proposed payment of the
order by postdated check, but because of Wagas’
assurance that he would not disappoint them and that
he had the means to pay them because he had a
lending business and money in the bank, they relented
and accepted the order; that he released the goods to
Wagas on April 30, 1997 and at the same time received
Bank of the Philippine Islands (BPI) Check No.
0011003 for ₱200,000.00 payable to cash and postdated
May 8, 1997; that he later deposited the check with
Solid Bank, his depository bank, but the check was
dishonored due to insufficiency of funds;5 that he
called Wagas about the matter, and the latter told him
that he would pay upon his return to Cebu; and that
despite repeated demands, Wagas did not pay him.6
On cross-examination, Ligaray admitted that he did
not personally meet Wagas because they transacted
through telephone only; that he released the 200 bags
of rice directly to Robert Cañada, the brother-in-law
of Wagas, who signed the delivery receipt upon
receiving the rice.7
After Ligaray testified, the Prosecution formally
offered the following: (a) BPI Check No. 0011003 in
the amount of ₱200,000.00 payable to "cash;" (b) the
return slip dated May 13, 1997 issued by Solid Bank;
(c) Ligaray’s affidavit; and (d) the delivery receipt
signed by Cañada. After the RTC admitted the
exhibits, the Prosecution then rested its case.8
In his defense, Wagas himself testified. He admitted
having issued BPI Check No. 0011003 to Cañada, his
brother-in-law, not to Ligaray. He denied having any
telephone conversation or any dealings with Ligaray.
He explained that the check was intended as payment
for a portion of Cañada’s property that he wanted to
buy, but when the sale did not push through, he did
not anymore fund the check.9
On cross-examination, the Prosecution confronted
Wagas with a letter dated July 3, 1997 apparently
signed by him and addressed to Ligaray’s counsel,
wherein he admitted owing Ligaray ₱200,000.00 for
goods received, to wit:
This is to acknowledge receipt of your letter dated
June 23, 1997 which is self-explanatory. It is worthy
also to discuss with you the environmental facts of the
case for your consideration, to wit:
It is true that I obtained goods from your client worth
₱200,000.00 and I promised to settle the same last May
10, 1997, but to no avail. On this point, let me inform
you that I sold my real property to a buyer in Manila,
and promised to pay the consideration on the same
date as I promised with your client. Unfortunately,
said buyer likewise failed to make good with such
obligation. Hence, I failed to fulfill my promise
resultant thereof. (sic)
Again, I made another promise to settle said obligation
on or before June 15, 1997, but still to no avail
attributable to the same reason as aforementioned.
(sic)
To arrest this problem, we decided to source some
funds using the subject property as collateral. This
other means is resorted to for the purpose of settling
the herein obligation. And as to its status, said funds
will be rele[a]sed within thirty (30) days from today.
In view of the foregoing, it is my sincere request and
promise to settle said obligation on or before August
15, 1997.
Lastly, I would like to manifest that it is not my
intention to shy away from any financial obligation.
xxxx
Respectfully yours,
(SGD.)
GILBERT R. WAGAS10
Wagas admitted the letter, but insisted that it was
Cañada who had transacted with Ligaray, and that he
had signed the letter only because his sister and her
husband (Cañada) had begged him to assume the
responsibility.11 On redirect examination, Wagas
declared that Cañada, a seafarer, was then out of the
country; that he signed the letter only to accommodate
the pleas of his sister and Cañada, and to avoid
jeopardizing Cañada’s application for overseas
employment.12 The Prosecution subsequently offered
and the RTC admitted the letter as rebuttal evidence.13
Decision of the RTC
As stated, the RTC convicted Wagas of estafa on July
11, 2002, viz:
WHEREFORE, premises considered, the Court finds
the accused GUILTY beyond reasonable doubt as
charged and he is hereby sentenced as follows:
To suffer an indeterminate penalty of from twelve (12)
years of pris[i]on mayor, as minimum, to thirty (30)
years of reclusion perpetua as maximum;
To indemnify the complainant, Albert[o] Ligaray in
the sum of ₱200,000.00;
To pay said complainant the sum of ₱30,000.00 by way
of attorney’s fees; and the costs of suit.
SO ORDERED.14
The RTC held that the Prosecution had proved beyond
reasonable doubt all the elements constituting the
crime of estafa, namely: (a) that Wagas issued the
postdated check as payment for an obligation
contracted at the time the check was issued; (b) that
he failed to deposit an amount sufficient to cover the
check despite having been informed that the check
had been dishonored; and (c) that Ligaray released the
goods upon receipt of the postdated check and upon
Wagas’ assurance that the check would be funded on
its date.
Wagas filed a motion for new trial and/or
reconsideration,15 arguing that the Prosecution did not
establish that it was he who had transacted with
Ligaray and who had negotiated the check to the
latter; that the records showed that Ligaray did not
meet him at any time; and that Ligaray’s testimony on
their alleged telephone conversation was not reliable
because it was not shown that Ligaray had been
familiar with his voice. Wagas also sought the
reopening of the case based on newly discovered
evidence, specifically: (a) the testimony of Cañada
who could not testify during the trial because he was
then out of the country, and (b) Ligaray’s testimony
given against Wagas in another criminal case for
violation of Batas Pambansa Blg. 22.
On October 21, 2002, the RTC denied the motion for
new trial and/or reconsideration, opining that the
evidence Wagas desired to present at a new trial did
not qualify as newly discovered, and that there was no
compelling ground to reverse its decision.16
Wagas appealed directly to this Court by notice of
appeal.17
Prior to the elevation of the records to the Court,
Wagas filed a petition for admission to bail pending
appeal. The RTC granted the petition and fixed Wagas’
bond at ₱40,000.00.18 Wagas then posted bail for his
provisional liberty pending appeal.19
The resolution of this appeal was delayed by incidents
bearing on the grant of Wagas’ application for bail. On
November 17, 2003, the Court required the RTC Judge
to explain why Wagas was out on bail.20 On January
15, 2004, the RTC Judge submitted to the Court a so-
called manifestation and compliance which the Court
referred to the Office of the Court Administrator
(OCA) for evaluation, report, and
recommendation.21 On July 5, 2005, the Court, upon
the OCA’s recommendation, directed the filing of an
administrative complaint for simple ignorance of the
law against the RTC Judge.22 On September 12, 2006,
the Court directed the OCA to comply with its July 5,
2005 directive, and to cause the filing of the
administrative complaint against the RTC Judge. The
Court also directed Wagas to explain why his bail
should not be cancelled for having been erroneously
granted.23 Finally, in its memorandum dated
September 27, 2006, the OCA manifested to the Court
that it had meanwhile filed the administrative
complaint against the RTC Judge.24
Issues
In this appeal, Wagas insists that he and Ligaray were
neither friends nor personally known to one other;
that it was highly incredible that Ligaray, a
businessman, would have entered into a transaction
with him involving a huge amount of money only over
the telephone; that on the contrary, the evidence
pointed to Cañada as the person with whom Ligaray
had transacted, considering that the delivery receipt,
which had been signed by Cañada, indicated that the
goods had been "Ordered by ROBERT CAÑADA," that
the goods had been received by Cañada in good order
and condition, and that there was no showing that
Cañada had been acting on behalf of Wagas; that he
had issued the check to Cañada upon a different
transaction; that Cañada had negotiated the check to
Ligaray; and that the element of deceit had not been
established because it had not been proved with
certainty that it was him who had transacted with
Ligaray over the telephone.
The circumstances beg the question: did the
Prosecution establish beyond reasonable doubt the
existence of all the elements of the crime of estafa as
charged, as well as the identity of the perpetrator of
the crime?
Ruling
The appeal is meritorious.
Article 315, paragraph 2(d) of the Revised Penal Code,
as amended, provides:
Article 315. Swindling (estafa). — Any person who
shall defraud another by any of the means mentioned
hereinbelow shall be punished by:
xxxx
2. By means of any of the following false pretenses or
fraudulent acts executed prior to or simultaneously
with the commission of the fraud:
xxxx
(d) By postdating a check, or issuing a check in
payment of an obligation when the offender had no
funds in the bank, or his funds deposited therein were
not sufficient to cover the amount of the check. The
failure of the drawer of the check to deposit the
amount necessary to cover his check within three (3)
days from receipt of notice from the bank and/or the
payee or holder that said check has been dishonored
for lack or insufficiency of funds shall be prima facie
evidence of deceit constituting false pretense or
fraudulent act.
In order to constitute estafa under this statutory
provision, the act of postdating or issuing a check in
payment of an obligation must be the efficient cause
of the defraudation. This means that the offender must
be able to obtain money or property from the offended
party by reason of the issuance of the check, whether
dated or postdated. In other words, the Prosecution
must show that the person to whom the check was
delivered would not have parted with his money or
property were it not for the issuance of the check by
the offender.25
The essential elements of the crime charged are that:
(a) a check is postdated or issued in payment of an
obligation contracted at the time the check is issued;
(b) lack or insufficiency of funds to cover the check;
and (c) damage to the payee thereof.26 It is the criminal
fraud or deceit in the issuance of a check that is
punishable, not the non-payment of a debt.27 Prima
facie evidence of deceit exists by law upon proof that
the drawer of the check failed to deposit the amount
necessary to cover his check within three days from
receipt of the notice of dishonor.
The Prosecution established that Ligaray had released
the goods to Cañada because of the postdated check
the latter had given to him; and that the check was
dishonored when presented for payment because of
the insufficiency of funds.
In every criminal prosecution, however, the identity
of the offender, like the crime itself, must be
established by proof beyond reasonable doubt.28 In
that regard, the Prosecution did not establish beyond
reasonable doubt that it was Wagas who had
defrauded Ligaray by issuing the check.
Firstly, Ligaray expressly admitted that he did not
personally meet the person with whom he was
transacting over the telephone, thus:
Q:
On April 30, 1997, do you remember having a
transaction with the accused in this case?
A:
Yes, sir. He purchased two hundred bags of rice from
me.
Q:
How did this purchase of rice transaction started? (sic)
A:
He talked with me over the phone and told me that he
would like to purchase two hundred bags of rice and
he will just issue a check.29
Even after the dishonor of the check, Ligaray did not
personally see and meet whoever he had dealt with
and to whom he had made the demand for payment,
and that he had talked with him only over the
telephone, to wit:
Q:
After the check was (sic) bounced, what did you do
next?
A:
I made a demand on them.
Q:
How did you make a demand?
A:
I called him over the phone.
Q:
Who is that "him" that you are referring to?
A:
Gilbert Wagas.30
Secondly, the check delivered to Ligaray was made
payable to cash. Under the Negotiable Instruments
Law, this type of check was payable to the bearer and
could be negotiated by mere delivery without the need
of an indorsement.31 This rendered it highly probable
that Wagas had issued the check not to Ligaray, but to
somebody else like Cañada, his brother-in-law, who
then negotiated it to Ligaray.1âwphi1 Relevantly,
Ligaray confirmed that he did not himself see or meet
Wagas at the time of the transaction and thereafter,
and expressly stated that the person who signed for
and received the stocks of rice was Cañada.
It bears stressing that the accused, to be guilty of estafa
as charged, must have used the check in order to
defraud the complainant. What the law punishes is the
fraud or deceit, not the mere issuance of the worthless
check. Wagas could not be held guilty of estafa simply
because he had issued the check used to defraud
Ligaray. The proof of guilt must still clearly show that
it had been Wagas as the drawer who had defrauded
Ligaray by means of the check.
Thirdly, Ligaray admitted that it was Cañada who
received the rice from him and who delivered the
check to him. Considering that the records are bereft
of any showing that Cañada was then acting on behalf
of Wagas, the RTC had no factual and legal bases to
conclude and find that Cañada had been acting for
Wagas. This lack of factual and legal bases for the RTC
to infer so obtained despite Wagas being Cañada’s
brother-in-law.
Finally, Ligaray’s declaration that it was Wagas who
had transacted with him over the telephone was not
reliable because he did not explain how he determined
that the person with whom he had the telephone
conversation was really Wagas whom he had not yet
met or known before then. We deem it essential for
purposes of reliability and trustworthiness that a
telephone conversation like that one Ligaray
supposedly had with the buyer of rice to be first
authenticated before it could be received in evidence.
Among others, the person with whom the witness
conversed by telephone should be first satisfactorily
identified by voice recognition or any other
means.32 Without the authentication, incriminating
another person just by adverting to the telephone
conversation with him would be all too easy. In this
respect, an identification based on familiarity with the
voice of the caller, or because of clearly recognizable
peculiarities of the caller would have sufficed.33 The
identity of the caller could also be established by the
caller’s self-identification, coupled with additional
evidence, like the context and timing of the telephone
call, the contents of the statement challenged, internal
patterns, and other distinctive characteristics, and
disclosure of knowledge of facts known peculiarly to
the caller.34
Verily, it is only fair that the caller be reliably
identified first before a telephone communication is
accorded probative weight. The identity of the caller
may be established by direct or circumstantial
evidence. According to one ruling of the Kansas
Supreme Court:
Communications by telephone are admissible in
evidence where they are relevant to the fact or facts in
issue, and admissibility is governed by the same rules
of evidence concerning face-to-face conversations
except the party against whom the conversations are
sought to be used must ordinarily be identified. It is
not necessary that the witness be able, at the time of
the conversation, to identify the person with whom
the conversation was had, provided subsequent
identification is proved by direct or circumstantial
evidence somewhere in the development of the case.
The mere statement of his identity by the party calling
is not in itself sufficient proof of such identity, in the
absence of corroborating circumstances so as to render
the conversation admissible. However, circumstances
preceding or following the conversation may serve to
sufficiently identify the caller. The completeness of
the identification goes to the weight of the evidence
rather than its admissibility, and the responsibility lies
in the first instance with the district court to
determine within its sound discretion whether the
threshold of admissibility has been met.35 (Bold
emphasis supplied)
Yet, the Prosecution did not tender any plausible
explanation or offer any proof to definitely establish
that it had been Wagas whom Ligaray had conversed
with on the telephone. The Prosecution did not show
through Ligaray during the trial as to how he had
determined that his caller was Wagas. All that the
Prosecution sought to elicit from him was whether he
had known and why he had known Wagas, and he
answered as follows:
Q:
Do you know the accused in this case?
A:
Yes, sir.
Q:
If he is present inside the courtroom […]
A:
No, sir. He is not around.
Q:
Why do you know him?
A:
I know him as a resident of Compostela because he is
an ex-mayor of Compostela.36
During cross-examination, Ligaray was allowed
another opportunity to show how he had determined
that his caller was Wagas, but he still failed to provide
a satisfactory showing, to wit:
Q:
Mr. Witness, you mentioned that you and the accused
entered into [a] transaction of rice selling, particularly
with these 200 sacks of rice subject of this case,
through telephone conversation?
A:
Yes, sir.
Q:
But you cannot really ascertain that it was the accused
whom you are talking with?
A:
I know it was him because I know him.
Q:
Am I right to say [that] that was the first time that you
had a transaction with the accused through telephone
conversation, and as a consequence of that alleged
conversation with the accused through telephone he
issued a check in your favor?
A:
No. Before that call I had a talk[ ] with the accused.
Q:
But still through the telephone?
A:
Yes, sir.
Q:
There was no instant (sic) that the accused went to see
you personally regarding the 200 bags rice transaction?
A:
No. It was through telephone only.
Q:
In fact[,] you did not cause the delivery of these 200
bags of rice through the accused himself?
A:
Yes. It was through Robert.
Q:
So, after that phone call[,] you deliver[ed] th[ose] 200
sacks of rice through somebody other than the
accused?
A:
Yes, sir.37
Ligaray’s statement that he could tell that it was Wagas
who had ordered the rice because he "know[s]" him
was still vague and unreliable for not assuring the
certainty of the identification, and should not support
a finding of Ligaray’s familiarity with Wagas as the
caller by his voice. It was evident from Ligaray’s
answers that Wagas was not even an acquaintance of
Ligaray’s prior to the transaction. Thus, the RTC’s
conclusion that Ligaray had transacted with Wagas
had no factual basis. Without that factual basis, the
RTC was speculating on a matter as decisive as the
identification of the buyer to be Wagas.
The letter of Wagas did not competently establish that
he was the person who had conversed with Ligaray by
telephone to place the order for the rice. The letter was
admitted exclusively as the State’s rebuttal evidence to
controvert or impeach the denial of Wagas of entering
into any transaction with Ligaray on the rice; hence, it
could be considered and appreciated only for that
purpose. Under the law of evidence, the court shall
consider evidence solely for the purpose for which it
is offered,38 not for any other purpose.39 Fairness to the
adverse party demands such exclusivity. Moreover,
the high plausibility of the explanation of Wagas that
he had signed the letter only because his sister and her
husband had pleaded with him to do so could not be
taken for granted.
It is a fundamental rule in criminal procedure that the
State carries the onus probandi in establishing the guilt
of the accused beyond a reasonable doubt, as a
consequence of the tenet ei incumbit probation, qui
dicit, non qui negat, which means that he who asserts,
not he who denies, must prove,40 and as a means of
respecting the presumption of innocence in favor of
the man or woman on the dock for a crime.
Accordingly, the State has the burden of proof to
show: (1) the correct identification of the author of a
crime, and (2) the actuality of the commission of the
offense with the participation of the accused. All these
facts must be proved by the State beyond reasonable
doubt on the strength of its evidence and without
solace from the weakness of the defense. That the
defense the accused puts up may be weak is
inconsequential if, in the first place, the State has
failed to discharge the onus of his identity and
culpability. The presumption of innocence dictates
that it is for the Prosecution to demonstrate the guilt
and not for the accused to establish
innocence.41 Indeed, the accused, being presumed
innocent, carries no burden of proof on his or her
shoulders. For this reason, the first duty of the
Prosecution is not to prove the crime but to prove the
identity of the criminal. For even if the commission of
the crime can be established, without competent proof
of the identity of the accused beyond reasonable
doubt, there can be no conviction.42
There is no question that an identification that does
not preclude a reasonable possibility of mistake cannot
be accorded any evidentiary force.43 Thus, considering
that the circumstances of the identification of Wagas
as the person who transacted on the rice did not
preclude a reasonable possibility of mistake, the proof
of guilt did not measure up to the standard of proof
beyond reasonable doubt demanded in criminal cases.
Perforce, the accused’s constitutional right of
presumption of innocence until the contrary is proved
is not overcome, and he is entitled to an
acquittal,44 even though his innocence may be
doubted.45
Nevertheless, an accused, though acquitted of estafa,
may still be held civilly liable where the
preponderance of the established facts so
warrants.46 Wagas as the admitted drawer of the check
was legally liable to pay the amount of it to Ligaray, a
holder in due course.47 Consequently, we pronounce
and hold him fully liable to pay the amount of the
dishonored check, plus legal interest of 6% per annum
from the finality of this decision.
WHEREFORE, the Court REVERSES and SETS
ASIDE the decision rendered on July 11, 2002 by the
Regional Trial Court, Branch 58, in Cebu City; and
ACQUITS Gilbert R. Wagas of the crime of estafa on
the ground of reasonable doubt, but ORDERS him to
pay Alberto Ligaray the amount of ₱200,000.00 as
actual damages, plus interest of 6% per annum from
the finality of this decision.
No pronouncement on costs of suit.
SO ORDERED.
LUCAS P. BERSAMIN
Associate Justice
WE CONCUR:
MARIA LOURDES P. A. SERENO
Chief Justice
 MARTIN S. BIENVENIDO L.
VILLARAMA, JR. REYES
Associate Justice Associate Justice
ESTELA M. PERLAS-BERNABE*
Associate Justice
CERTIFICATION
Pursuant to Section 13, Article VIII of the
Constitution, I certify that the conclusions in the
above Decision had been reached in consultation
before the case was assigned to the writer of the
opinion of the Court’s Division.
MARIA LOURDES P. A. SERENO
Chief Justice
BP 22

35. Ermilia Lim vs. Mindanao Wines and Liquor

Galleria, GR No. 175851, July 4, 2012

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 175851 July 4, 2012
EMILIA LIM, Petitioner,
vs.
MINDANAO WINES & LIQUOR GALLERIA, a Single
Proprietorship Business Outfit Owned by Evelyn S.
Valdevieso, Respondent.
DECISION
DEL CASTILLO, J.:
Acquittal from a crime does not necessarily mean
absolution from civil liability.
Despite her acquittal from the charges of violation of
Batas Pambansa Bilang 22 (BP 22) or the Bouncing
Checks Law, the lower courts still found petitioner
Emilia Lim (Emilia) civilly liable and ordered her to
pay the value of the bounced checks, a ruling which
was upheld by the Court of Appeals (CA) in its June
30, 2006 Decision1 and November 9, 2006
Resolution2 in CA-G.R. SP No. 64897.
In this Petition for Review on Certiorari, Emilia prays
for the reversal and setting aside of the said rulings of
the CA. She contends that since her acquittal was
based on insuffiency of evidence, it should then follow
that the civil aspect of the criminal cases filed against
her be likewise dismissed. Hence, there is no basis for
her adjudged civil liability.
Factual Antecedents
Sales Invoice No. 17113 dated November 24, 1995, as
well as Statement of Accounts No. 0764 indicate that
respondent Mindanao Wines and Liquor Galleria
(Mindanao Wines) delivered several cases of liquors to
H & E Commercial owned by Emilia, for which the
latter issued four Philippine National Bank (PNB)
postdated checks worth ₱25,000.00 each. When two
of these checks, particularly PNB Check Nos.
9514535 and 9514546 dated October 10, 1996 and
October 20, 1996, respectively, bounced for the
reasons ‘ACCOUNT CLOSED’ and ‘DRAWN
AGAINST INSUFFICIENT FUNDS’, Mindanao
Wines, thru its proprietress Evelyn Valdevieso,
demanded from H & E Commercial the payment of
their value through two separate letters both dated
November 18, 1996.7 When the demands went
unheeded, Mindanao Wines filed before Branch 2 of
the Municipal Trial Court in Cities (MTCC) of Davao
City Criminal Case Nos. 68,309-B-98 and 68,310-B-98
against Emilia for violations of BP 22.8
During trial, the prosecution presented its sole
witness, Nieves Veloso
(Nieves), accountant and officer-in-charge of
Mindanao Wines. She testified that Emilia has been a
customer of Mindanao Wines who purchased from it
assorted liquors. In fact, Sales Invoice No. 1711
covered the orders made by Emilia from Mindanao
Wines and these orders were delivered by the latter’s
salesman Marcelino Bersaluna9(Marcelino) to H & E
Commercial in San Francisco, Agusan del Sur. For the
same, Marcelino received the four PNB checks and
accordingly endorsed them to Mindanao Wines. Out
of these four PNB checks, two were already paid, i.e.,
one was collected while the other redeemed in court.10
With regard to the bounced PNB Check Nos. 951453
and 951454, Nieves claimed that upon her instructions
Marcelino went to H & E Commercial more than 10
times to collect their value. But since his efforts were
in vain, two demand letters were thus sent to Emilia
which were duly received by her as the same were
‘signed by the recipient of the letters’.11
On cross, Nieves admitted that she neither saw Emilia
issue the checks nor accompanied Marcelino in
delivering the orders to H & E Commercial or in
collecting the unpaid checks.12 Asked about the
corresponding sales order covering Sales Invoice No.
1711, she acknowledged that the sales order was
unsigned and explained that sales orders of customers
are handled by the Credit and Collection Department
of Mindanao Wines.13
After the prosecution rested its case, Emilia filed a
Demurrer to Evidence14 claiming insufficiency of
evidence. She asserted that not one of the elements of
BP 22 was proven because the witness merely relied
upon the reports of the salesman; that the purchases
covered by Sales Invoice No. 1711 were unauthorized
because the corresponding job order was unsigned;
and that it was never established that the bank
dishonored the checks or that she was even sent a
notice of dishonor.
Ruling of the Municipal Trial Court in Cities
In its December 10, 1999 Order,15 the MTCC granted
the Demurrer to Evidence. It ruled that while Emilia
did issue the checks for value, the prosecution
nevertheless miserably failed to prove one essential
element that consummates the crime of BP 22, i.e., the
fact of dishonor of the two subject checks. It noted that
other than the checks, no bank representative testified
about presentment and dishonor. Hence, the MTCC
acquitted Emilia of the criminal charges. However, the
MTCC still found her civilly liable because when she
redeemed one of the checks during the pendency of
the criminal cases, the MTCC considered the same as
an acknowledgement on her part of her obligation
with Mindanao Wines. Pertinent portions of the
MTCC Order read:
The elements of B.P. Blg. 22 must concur before one
can be convicted of this offense. Since one element is
wanting, it is believed that the guilt of the accused has
not been established beyond reasonable doubt. The
Court, however, opines that the accused is civilly
liable. There is evidence on record that an account was
contracted. She should, therefore, pay.
WHEREFORE, the demurrer to evidence is granted
and these cases are ordered DISMISSED.
Accused, however, is adjudged to pay complainant the
total amounts of the 2 checks which is ₱50,000.00,
with interest at the rate of 12% per annum to be
computed from the date of notice which is November
18, 1996 until the amount is paid in full; to reimburse
complainant of the expenses incurred in filing these
cases in the amount of ₱1,245.00, and to pay attorney’s
fees of ₱10,000.00.
SO ORDERED.16
Ruling of the Regional Trial Court
Dissatisfied that her acquittal did not carry with it her
exoneration from civil liability, Emilia appealed to the
Regional Trial Court (RTC) of Davao City, Branch 13.
Emilia contended that since the MTCC dismissed the
criminal cases ‘on the ground of insufficient evidence,’
the civil aspect of the criminal cases should likewise
be automatically dismissed. She argued that the court
may only award damages for the civil aspect of BP 22
if the criminal cases have been dismissed on
‘reasonable doubt’ upon proof of preponderance of
evidence.
The RTC was not persuaded by Emilia’s contentions.
The RTC clarified that the MTCC dismissed the
criminal cases based on ‘reasonable doubt’ and not on
‘insufficiency of evidence.’ And while the prosecution
failed to prove criminal liability beyond reasonable
doubt, Emilia’s indebtedness was nonetheless proven
by preponderance of evidence, the quantum of
evidence required to prove the same. Thus, the RTC
declared in its January 5, 2001 Order17 that:
The prosecution however had established that the
accused had issued the checks subject of these cases.
The accused had impliedly admitted that she was the
maker of the checks subject of [these] case[s] when she
redeemed a third check from the complainant. In fact,
the accused had never categorically denied having
issued the checks subject of these cases. When the
accused filed the Demurrer to Evidence, she had
hypothetically admitted the evidence presented by the
prosecution to be true, and this includes the allegation
of the prosecution that the accused issued the checks
subject of these cases for value.18
Thus, it dismissed the appeal, viz:
WHEREFORE, in view of the foregoing, the appeal of
the accused in these cases is hereby DISMISSED, and
the decision appealed from is hereby AFFIRMED IN
TOTO.
SO ORDERED.19
Ruling of the Court of Appeals
Undeterred, Emilia filed before the CA a Petition for
Review20 still insisting that the MTCC’s dismissal was
based on ‘insufficiency of evidence’ and that same
pertains to both the criminal and civil aspects of BP 22.
She reiterated that there was no basis for the civil
award made by the MTCC since the prosecution failed
to show evidence of her civil liability and that a court
can only award civil liability in cases of acquittals
based on reasonable doubt and not on insufficiency of
evidence.
In its June 30, 2006 Decision, the CA emphasized that
even if acquitted, an accused may still be held civilly
liable if a) the acquittal was based on reasonable doubt
or b) the court declared that the liability of the accused
is only civil. Just like the RTC, the CA ruled that the
dismissal of the criminal cases against Emilia was
expressly based on reasonable doubt, hence, she is not
free from civil liability because the same is not
automatically extinguished by acquittal based on said
ground. The CA further declared that even granting
that her acquittal was for ‘insufficiency of evidence,’
the same is still akin to a dismissal based on reasonable
doubt.
Respecting the factual conclusions of the lower courts
anent Emilia’s civil liability, the CA noted that Emilia
had never denied issuing the subject checks for value
which, in themselves constituted evidence of
indebtedness. Moreover, she failed to refute the
prosecution’s evidence when she filed a Demurrer to
Evidence. The CA therefore affirmed the assailed
Order of the RTC except that it deleted the award of
attorney’s fees, thus:
WHEREFORE, premises considered, the assailed
Order of the Regional Trial Court (RTC), Br. 13, Davao
City, affirming in toto the Order of the Municipal Trial
Court in Cities (MTCC), Br. 2, Davao City as to the
civil liability of Emilia Lim, is hereby AFFIRMED
with the sole modification that the award of attorney’s
fees in favor of the Respondent is DELETED.
SO ORDERED. 21
On Motion for Reconsideration,22 Emilia asserted that
by granting her Demurrer to Evidence based on
insufficiency of evidence, the MTCC acknowledged
that there is absolutely no case against her. She alleged
that the ‘preponderance of evidence’ required in
determining civil liability does not apply to her as she
never presented any evidence at all, implying that in
such a determination, both parties should have
presented their respective evidence for the purpose of
ascertaining as to which of the evidence presented is
superior.
The CA, however, rejected the motion in its
Resolution23 dated November 9, 2006. It held that
‘insufficiency’ does not mean the ‘total absence of
evidence,’ but that ‘evidence is lacking of what is
necessary or required to make out her case.’ The CA
explained that the MTCC acquitted Emilia because the
quantum of evidence required for a finding of guilt
beyond reasonable doubt was insufficient to convict
her of BP 22. However, the extinction of the civil
aspect does not necessarily follow such acquittal. The
CA also disregarded Emilia’s argument that a
‘preponderance of evidence’ should be a comparison of
evidence of the opposing parties as such interpretation
would lead to absurdity because by simply refusing to
present evidence, a defendant can then be easily
absolved from a civil suit.
Hence, this petition raising the following assignment
of errors:
1) THE HONORABLE COURT OF APPEALS
GRAVELY ERRED IN NOT HOLDING THAT
THE AWARD OF CIVIL LIABILITY IN FAVOR
OF THE RESPONDENT AND AGAINST THE
PETITIONER IS A NULLITY FOR LACK OF DUE
PROCESS, APART FROM THE FACT THAT THE
COMPLAINANT IS NOT A JURIDICAL PERSON
OR IS NOT THE REAL PARTY IN INTEREST.
2) THE HONORABLE COURT OF APPEALS
GRAVELY ERRED IN NOT HOLDING THAT
 BECAUSE THE GROUND FOR THE DISMISSAL
WAS FOR "INSUFFICIENCY OF EVIDENCE"
AND NOT ON "REASONABLE DOUBT," THE
DISMISSAL OF THE CRIMINAL CASES
CARRIES WITH IT THE DISMISSAL OF THE
CIVIL CASES DEEMED INSTITUTED THEREIN.
3) THE HONORABLE COURT OF APPEALS
GRAVELY ERRED IN ITS APPLICATION OF
THE CONCEPT OF "PREPONDERANCE OF
EVIDENCE."
4) THE HONORABLE COURT OF APPEALS
GRAVELY ERRED IN NOT HOLDING THAT
THERE IS NO PIECE OF "ADMISSIBLE
EVIDENCE" PRESENTED THAT MAY BE
TAKEN INTO ACCOUNT TO PROVE CIVIL
LIABILITY.24
In sum, the core issue in this petition is whether the
dismissal of Emilia’s BP 22 cases likewise includes the
dismissal of their civil aspect.
Our Ruling
The petition lacks merit.
Emilia’s allegations that she was denied due process
and that Mindanao Wines is not the real party in
interest do not merit our attention as these were never
raised for resolution before the courts below.
Emilia claims that she was deprived of due process
when the courts below declared her civilly liable. In
support of this, she cites Salazar v. People25 wherein it
was held that a court cannot rule upon the civil aspect
of the case should it grant a demurrer to evidence with
leave of court since the accused is entitled to adduce
controverting evidence on the civil liability. Emilia
likewise contends that Mindanao Wines is not a
juridical person, it being a single proprietorship only
and thus, not the real party in interest in this case.
We note, however, that Emilia had never invoked
before the courts below the ruling in
Salazar.1âwphi1 Neither did she specify in her
pleadings filed therein whether her demurrer was
filed with or without leave of court. It is only now that
Emilia is claiming that the same was filed with leave
of court in an apparent attempt to conform the facts of
this case with that in Salazar. The same goes true with
regard to the questioned locus standi of Mindanao
Wines. Emilia likewise did not raise in her pleadings
filed with the RTC or the CA that the civil aspect is
dismissible for lack of cause of action because
Mindanao Wines is not a juridical person and thus not
a real party in interest. In fact, the courts below all
along considered Mindanao Wines as the plaintiff and
the trial proceeded as such.
Obviously, these new issues are mere
afterthoughts.1âwphi1 They were raised only for the
first time in this petition for review on certiorari.
Never were they presented before the RTC and the CA
for resolution. To allow Emilia to wage a legal
blitzkrieg and blindside Mindanao Wines is a violation
of the latter’s due process rights:
It is well-settled that no question will be entertained
on appeal unless it has been raised in the proceedings
below. Points of law, theories, issues and arguments
not brought to the attention of the lower court,
administrative agency or quasi-judicial body, need not
be considered by a reviewing court, as they cannot be
raised for the first time at that late stage. Basic
considerations of fairness and due process impel this
rule. Any issue raised for the first time on appeal is
barred by estoppel.26
For this reason, the said issues do not merit the Court’s
consideration.
Notwithstanding her acquittal, Emilia is civilly liable.
"The extinction of the penal action does not carry with
it the extinction of the civil liability where x x x the
acquittal is based on reasonable doubt as only
preponderance of evidence is required"27 in civil cases.
On this basis, Emilia insists that the MTCC dismissed
the BP 22 cases against her not on the ground of
reasonable doubt but on insufficiency of evidence.
Hence, the civil liability should likewise be
extinguished. Emilia’s Demurrer to Evidence,
however, betrays this claim. Asserting insufficiency of
evidence as a ground for granting said demurrer,
Emilia herself argued therein that the prosecution has
not proven [her] guilt beyond reasonable doubt.28 And
in consonance with such assertion, the MTCC in its
judgment expressly stated that her guilt was indeed
not established beyond reasonable doubt, hence the
acquittal.29
In any case, even if the Court treats the subject
dismissal as one based on insufficiency of evidence as
Emilia wants to put it, the same is still tantamount to
a dismissal based on reasonable doubt. As may be
recalled, the MTCC dismissed the criminal cases
because one essential element of BP 22 was missing,
i.e., the fact of the bank’s dishonor. The evidence was
insufficient to prove said element of the crime as no
proof of dishonor of the checks was presented by the
prosecution. This, however, only means that the trial
court cannot convict Emilia of the crime since the
prosecution failed to prove her guilt beyond
reasonable doubt, the quantum of evidence required
in criminal cases. Conversely, the lack of such proof of
dishonor does not mean that Emilia has no existing
debt with Mindanao Wines, a civil aspect which is
proven by another quantum of evidence, a mere
preponderance of evidence.
Emilia also avers that a court’s determination of
preponderance of evidence necessarily entails the
presentation of evidence of both parties. She thus
believes that she should have been first required to
present evidence to dispute her civil liability before
the lower courts could determine preponderance of
evidence.
We disagree.
"Preponderance of evidence is [defined as] the weight,
credit, and value of the aggregate evidence on either
side and is usually considered to be synonymous with
the term ‘greater weight of the evidence’ or ‘greater
weight of the credible evidence’. It is evidence which
is more convincing to the court as worthy of belief
than that which is offered in opposition
thereto."30 Contrary to Emilia’s interpretation, a
determination of this quantum of evidence does not
need the presentation of evidence by both parties. As
correctly reasoned out by the CA, Emilia’s
interpretation is absurd as this will only encourage
defendants to waive their presentation of evidence in
order for them to be absolved from civil liability for
lack of preponderance of evidence. Besides, Emilia
should note that even when a respondent does not
present evidence, a complainant in a civil case is
nevertheless burdened to substantiate his or her claims
by preponderance of evidence before a court may rule
on the reliefs prayed for by the latter. Settled is the
principle that "parties must rely on the strength of
their own evidence, not upon the weakness of the
defense offered by their opponent."31
Lastly, we see no reason to disturb the ruling of the CA
anent Emilia’s civil liability. As may be recalled, the
CA affirmed the lower courts’ factual findings on the
matter. Factual findings of the trial court, when
affirmed by the CA, will not be disturbed.32 Also, "[i]t
is a settled rule that in a petition for review on
certiorari under Rule 45 of the Rules of [Court], only
questions of law may be raised by the parties and
passed upon by this Court."33 Moreover, "it is well to
remember that a check may be evidence of
indebtedness. A check, the entries of which are in
writing, could prove a loan transaction."34 While
Emilia is acquitted of violations of BP 22, she should
nevertheless pay the debt she owes.
WHEREFORE, the petition for review on certiorari is
DENIED. The challenged June 30, 2006 Decision and
November 9, 2006 Resolution of the Court of Appeals
in CA-G.R. SP No. 64897 are hereby AFFIRMED in
toto.
SO ORDERED.
MARIANO C. DEL CASTILLO
Associate Justice
WE CONCUR:
TERESITA J. LEONARDO-DE CASTRO*
Associate Justice
Acting Chairperson
MARTIN S.
ARTURO D. BRION**
VILLARAMA, JR.
Associate Justice
Associate Justice
ESTELA M. PERLAS-BERNABE***
Associate Justice
ATTESTATION
I attest that the conclusions in the above Decision had
been reached in consultation before the case was
assigned to the writer of the opinion of the Court’s
Division.
TERESITA J. LEONARDO-DE CASTRO
Associate Justice
Acting Chairperson
CERTIFICATION
I certify that the conclusions in the above Decision
had been reached in consultation before the case was
assigned to the writer of the opinion of the Court.
ANTONIO T. CARPIO
Senior Associate Justice
(Per Section 12, R.A. 296, The Judiciary Act of 1948,
as amended)
36. Nissan Gallery-Ortigas vs. Purificacion Felipe, GR
No. 199067, Nov. 11, 2013

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 199067 November 11, 2013
NISSAN GALLERY-ORTIGAS, Petitioner,
vs.
PURIFICACION F. FELIPE, Respondent.
DECISION
MENDOZA, J.:
This petition for review on certiorari under Rule 45 or
the Rules or Court seeks to review, reverse and set
aside the June 30, 2011 Decision1 or the Court of
Appeals (CA) in CA-G.R. SP No. 120100,2 and its
October 21, 2011 Resolution,3 for being issued in a
manner not in accord with law and jurisprudence.
This case stemmed from a criminal complaint for
violation or Batas Pambansa Blg. 22 (BP 22) filed by
petitioner Nissan Gallery-Ortigas Nissan), an entity
engaged in the business or car dealership, against
respondent Purificacion F. Felipe (Purificacion) with
the Office of the City Prosecutor of Quezon City. The
said office found probable cause to indict Purificacion
and filed an Information before the Metropolitan Trial
Court, (raffled to Branch 41), Quezon City (MeTC), for
her issuance of a postdated check in the amount of
₱1,020,000.00, which was subsequently dishonored
upon presentment due to "STOP PAYMENT."
Purificacion issued the said check because her son,
Frederick Felipe (Frederick), attracted by a huge
discount of ₱220,000.00, purchased a Nissan Terrano
4x4 sports and utility vehicle (SUV) from Nissan. The
term of the transaction was Cash-on-Delivery and no
downpayment was required. The SUV was delivered
on May 14, 1997, but Frederick failed to pay upon
delivery. Despite non-payment, Frederick took
possession of the vehicle.4
Since then, Frederick had used and enjoyed the SUV
for more than four (4) months without paying even a
single centavo of the purchase price. This constrained
Nissan to send him two (2) demand letters, on
different dates, but he still refused to pay. Nissan,
through its retained counsel, was prompted to send a
final demand letter. Reacting to the final demand,
Frederick went to Nissan’s office and asked for a grace
period until October 30, 1997 within which to pay his
full outstanding obligation amounting to
₱1,026,750.00. Through further negotiation, the
amount was eventually reduced to ₱1,020,000.00.5
Frederick reneged on his promise and again failed to
pay. On November 25, 1997, he asked his mother,
Purificacion, to issue the subject check as payment for
his obligation. Purificacion acceded to his request.
Frederick then tendered her postdated check in the
amount of ₱1,020,000.00. The check, however, was
dishonored upon presentment due to "STOP
PAYMENT."6
A demand letter was served upon Purificacion,
through Frederick, who lived with her. The letter
informed her of the dishonor of the check and gave
her five (5) days from receipt within which to replace
it with cash or manager’s check. Despite receipt of the
demand letter, Purificacion refused to replace the
check giving the reason that she was not the one who
purchased the vehicle. On January 6, 1998, Nissan
filed a criminal case for violation of BP 22 against her.7
During the preliminary investigation before the
Assistant City Prosecutor, Purificacion gave
₱200,000.00 as partial payment to amicably settle the
civil aspect of the case. Thereafter, however, no
additional payment had been made.
After trial, the MeTC rendered its judgment acquitting
Purificacion of the charge, but holding her civilly
liable to Nissan. The dispositive portion of the
judgment states that:
WHEREFORE, judgment is hereby rendered
ACQUITTING accused PURIFICACION FELIPE of
the crime of Violation of Batas Pambansa 22.
However, accused PURIFICACION FELIPE is ordered
to pay private complainant Nissan Gallery Ortigas the
amount of SIX HUNDRED SEVENTY FIVE
THOUSAND PESOS (₱675,000.00) with legal interest
per annum, from the filing of the information until the
finality of this decision.
SO ORDERED.8
Purificacion appealed to the Regional Trial Court
(RTC). Branch 105 thereof affirmed the MeTC
decision on December 22, 2008. The RTC ruled that
Purificacion was estopped from denying that she
issued the check as a "show check" to boost the credit
standing of Frederick and that Nissan agreed not to
deposit the same.9 Further, the RTC considered
Purificacion to be an accommodation party who was
"liable on the instrument to a holder for value even
though the holder at the time of taking the instrument
knew him or her to be merely an accommodation
party."10
Purificacion moved for a reconsideration, but her
motion was denied.
The CA, before whom the case was elevated via a
petition for review, granted the petition on May 20,
2009.1avvphi1 In so deciding, the CA reasoned out
that there was no privity of contract between Nissan
and Purificacion. No civil liability could be adjudged
against her because of her acquittal from the criminal
charge. It was Frederick who was civilly liable to
Nissan.11
It added that Purificacion could not be an
accommodation party either because she only came in
after Frederick failed to pay the purchase price, or six
(6) months after the execution of the contract between
Nissan and Frederick. Her liability was limited to her
act of issuing a worthless check but by her acquittal in
the criminal charge, there was no more basis for her to
be held civilly liable to Nissan.12 Purificacion’s act of
issuing the subject check did not, by itself, assume the
civil obligation of Frederick to Nissan or automatically
made her a party to the contract.13 Thus, the decretal
portion of the judgment reads:
WHEREFORE, finding merit therefrom, the instant
petition is GIVEN DUE COURSE and is hereby
GRANTED. The Decision and Order dated December
22, 2008 and May 20, 2009, respectively, of the
Regional Trial Court (RTC), Branch 105, Quezon City,
in Crim. Case No. Q-08-151734, affirming the
Judgment of the Metropolitan Trial Court (MeTC),
Branch 41, Quezon City, for Violation of B.P. 22,
acquitting petitioner of the crime charged but
ordering the latter to pay respondent the amount of
Six Hundred Seventy Five Thousand Pesos
(₱675,000.00) with 12% legal interest, is SET ASIDE
and petitioner is EXONERATED from any civil
liability by reason of her issuance of the subject check.
xxx
SO ORDERED.14
Nissan filed a motion for reconsideration, but it was
later denied.
Hence, this petition, with Nissan presenting the
following
GROUNDS
A.
BOTH THE METROPOLITAN TRIAL COURT AND
THE REGIONAL TRIAL COURT CONCURRED
THAT THE ISSUANCE BY RESPONDENT
PURIFICACION OF THE SUBJECT BOUNCED
CHECK WAS FOR AND IN PAYMENT OF HER
SON’S OUTSTANDING OBLIGATION TO NISSAN
GALLERY ORIGINATING FROM HIS PURCHASE
OF THE SUBJECT MOTOR VEHICLE, NOT MERELY
AS A "SHOW CHECK", HENCE, EVEN IF
PURIFICACION IS NOT A PARTY TO THE SALES
TRANSACTION BETWEEN NISSAN GALLERY, AS
SELLER, AND FREDERICK, AS BUYER,
PURIFICACION, AS THE ONE WHO DREW THE
BOUNCED CHECK AS AND IN PAYMENT OF THE
LONG-UNPAID MOTOR VEHICLE PURCHASED
BY HER SON, COULD NOT ESCAPE LIABILITY ON
THE CIVIL ASPECT OF THE CASE.
B.
WHILE IT MAY BE TRUE THAT RESPONDENT
PURIFICACION MAY BE ACQUITTED OF THE
CRIME CHARGED (VIOLATION OF B.P. 22), ONLY
BECAUSE THE PROSECUTION FAILED TO PROVE
THAT RESPONDENT PURIFICACION WAS
PROPERLY NOTIFIED OF THE DISHONOR OF
THE SUBJECT BOUNCED CHECK, IT IS NOT
CORRECT TO EXONERATE HER FROM THE CIVIL
ASPECT OF THE CASE.15
Ultimately, the question presented before the Court is
whether or not Purificacion is civilly liable for the
issuance of a worthless check despite her acquittal
from the criminal charge.
Ruling of the Court
The Court rules in the affirmative.
Well-settled is the rule that a civil action is deemed
instituted upon the filing of a criminal action, subject
to certain exceptions. Section 1, Rule 111 of the Rules
of Court specifically provides that:
SECTION 1. Institution of criminal and civil actions.
— (a) When a criminal action is instituted, the civil
action for the recovery of civil liability arising from
the offense charged shall be deemed instituted with
the criminal action unless the offended party waives
the civil action, reserves the right to institute it
separately or institutes the civil action prior to the
criminal action (unless the offended party waives the
civil action, reserves the right to institute it separately
or institutes the civil action prior to the criminal
action).
x x x x.
(b) The criminal action for violation of Batas
Pambansa Blg. 22 shall be deemed to include the
corresponding civil action. No reservation to file such
civil action separately shall be allowed.
x x x x.
As can be gleaned from the foregoing, with respect to
criminal actions for violation of BP 22, it is explicitly
clear that the corresponding civil action is deemed
included and that a reservation to file such separately
is not allowed.
The rule is that every act or omission punishable by
law has its accompanying civil liability. The civil
aspect of every criminal case is based on the principle
that every person criminally liable is also civilly
liable.16 If the accused, however, is not found to be
criminally liable, it does not necessarily mean that he
will not likewise be held civilly liable because
extinction of the penal action does not carry with it
the extinction of the civil action.17 This rule more
specifically applies when (a) the acquittal is based on
reasonable doubt as only preponderance of evidence is
required; (b) the court declares that the liability of the
accused is only civil; and (c) the civil liability of the
accused does not arise from or is not based upon the
crime of which the accused was acquitted.18 The civil
action based on the delict is extinguished if there is a
finding in the final judgment in the criminal action
that the act or omission from which the civil liability
may arise did not exist or where the accused did not
commit the acts or omission imputed to him.19
It can, therefore, be concluded that if the judgment is
conviction of the accused, then the necessary penalties
and civil liabilities arising from the offense or crime
shall be imposed. On the contrary, if the judgment is
of acquittal, then the imposition of the civil liability
will depend on whether or not the act or omission
from which it might arise exists.
Purificacion was charged with violation of BP 22 for
allegedly issuing a worthless check. The essential
elements of the offense of violation of BP 22 are the
following:
(1) The making, drawing, and issuance of any check to
apply for account or for value; (2) The knowledge of
the maker, drawer, or issuer that at the time of issue
there were no sufficient funds in or credit with the
drawee bank for the payment of such check in full
upon its presentment; and (3) The dishonor of the
check by the drawee bank for insufficiency of funds or
credit or the dishonor for the same reason had not the
drawer, without any valid cause, ordered the drawee
bank to stop payment.20
Here, the first and third elements were duly proven in
the trial. Purificacion, however, was acquitted from
criminal liability because of the failure of the
prosecution to prove the fact of notice of dishonor. Of
the three (3) elements, the second element is the
hardest to prove as it involves a state of mind.21 Thus,
Section 2 of BP 22 creates a presumption of knowledge
of insufficiency of funds which, however, arises only
after it is proved that the issuer had received a written
notice of dishonor and that within five (5) days from
receipt thereof, he failed to pay the amount of the
check or to make arrangements for its payment.22
Purificacion was acquitted because the element of
notice of dishonor was not sufficiently
established.1âwphi1 Nevertheless, the act or omission
from which her civil liability arose, which was the
making or the issuing of the subject worthless check,
clearly existed. Her acquittal from the criminal charge
of BP 22 was based on reasonable doubt and it did not
relieve her of the corresponding civil liability. The
Court cannot agree more when the MeTC ruled that:
A person acquitted of a criminal charge, however, is
not necessarily civilly free because the quantum of
proof required in criminal prosecution (proof beyond
reasonable doubt) is greater than that required for civil
liability (mere preponderance of evidence). In order to
be completely free from civil liability, a person’s
acquittal must be based on the fact he did not commit
the offense. If the acquittal is based merely on
reasonable doubt, the accused may still be held civilly
liable since this does not mean he did not commit the
act complained of. It may only be that the facts proved
did not constitute the offense charged.23
The Court is also one with the CA when it stated that
the liability of Purificacion was limited to her act of
issuing a worthless check. The Court, however, does
not agree with the CA when it went to state further
that by her acquittal in the criminal charge, there was
no more basis for her to be held civilly liable to Nissan.
The acquittal was just based on reasonable doubt and
it did not change the fact that she issued the subject
check which was subsequently dishonored upon its
presentment.
Purificacion herself admitted having issued the subject
check in the amount of ₱1,020,000.00 after Frederick
asked her to do it as payment for his obligation with
Nissan. Her claim that she issued the check as a mere
"show check" to boost Frederick’s credit standing was
not convincing because there was no credit standing
to boost as her son had already defaulted in his
obligation to Nissan. Had it been issued prior to the
sale of the vehicle, the "show check" claim could be
given credence. It was not, however, the case here. It
was clear that she assumed her son’s obligation with
Nissan and issued the check to pay it. The argument
that it was a mere "show check" after her son was
already in default its simply ludicrous.
The Court shall not be belabored with the issue of
whether or not Purificacion was an accommodation
party because she was not. Granting that she was, it is
with more reason that she cannot escape any civil
liability because Section 2924 of the Negotiable
Instruments Law specifically bounds her to the
instrument. The crux of the controversy pertains to
the civil liability of an accused despite acquittal of a
criminal charge. Such issue is no longer novel. In cases
like violation of BP 22, a special law, the intent in
issuing a check is immaterial. The law has made the
mere act of issuing a bad check malum prohibitum, an
act prescribed by the legislature for being deemed
pernicious and inimical to public welfare. Considering
the rule in mala prohibita cases, the only inquiry is
whether the law has been breached.25 The lower
courts were unanimous in finding that, indeed.
Purificacion issued the bouncing check. Thus,
regardless of her intent, she remains civilly liable
because the act or omission, the making and issuing of
the subject check, from which her civil liability arises,
evidently exists.
WHEREFORE, the petition is GRANTED. The June
30, 2011 Decision and the October 21, 2011 Resolution
of the Court of Appeals are hereby SET ASIDE. The
Decision of the Regional Trial Court, Branch 105,
Quezon City, in Criminal Case No. Q-08-151734,
dated December 22, 2008, affirming the Judgment of
the Metropolitan Trial Court, Branch 41, Quezon City,
for Violation of B.P. 22 is REINSTATED with
MODIFICATION with respect to the legal interest
which shall be reduced to 6% per annum from finality
of this judgment until its satisfaction.26
SO ORDERED.
JOSE CATRAL MENDOZA
Associate Justice
WE CONCUR:
PRESBITERO J. VELASCO, JR.
Associate Justice
Chairperson
DIOSDADO M.
ROBERTO A. ABAD
PERALTA
Associate Justice
Associate Justice
MARVIC MARIO VICTOR F. LEONEN
Associate Justice
ATTESTATION
I attest that the conclusions in the above Decision had
been reached in consultation before the case was
assigned to the writer of the opinion of the Court’s
Division.
PRESBITERO J. VELASCO, JR.
Associate Justice
Chairperson, Third Division
CERTIFICATION
Pursuant to Section 13, Article VIII of the
Constitution and the Division Chairperson’s
Attestation, I certify that the conclusions in the above
Decision had been reached in consultation before the
case was assigned to the writer of the Court’s Division.
MARIA LOURDES P. A. SERENO
Chief Justice
MALVERSATION

35. Guillermo E. Cua vs. People, GR No. 166847, Nov.

16, 2011

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 166847 November 16, 2011
GUILLERMO E. CUA, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
MENDOZA, J.:
In this petition for review, Guillermo E.
Cua (petitioner) questions the June 8, 2004
Decision1 and January 13, 2005 Resolution2 of the
Court of Appeals (CA) in CA-G.R. CR. No. 24608,
which affirmed with modification the September 21,
1999 Decision3 of the Regional Trial Court, Branch 72,
Olongapo City (RTC), in Criminal Case No. 84-96,
finding him guilty of the crime of malversation of
public funds. The Information indicting the petitioner
reads:
That on or about the 29th day of June, 1994 or on dates
prior thereto, in Olongapo City and within the
jurisdiction of this Honorable Court, the above-named
accused, being then an accountable officer for public
funds as Revenue Collection Agent of Bureau of
Internal Revenue, Revenue Region No. 4, Olongapo
City, and having received tax collections in the total
amount of ₱ 340,950.37 for the months of January to
June 1994, did then and there willfully, unlawfully
and feloniously, appropriate, take or misappropriate a
portion of said tax collections in the amount of ₱
291,783.00 for his own personal use and benefit and
despite demand made on him by the Commission on
Audit, Regional Office No. III, San Fernando
Pampanga, to pay or return the said amount, the said
accused refused and failed and still refuses and fails to
pay or return the said amount of ₱ 291,793.00, to the
damage and prejudice of the government.
CONTRARY TO LAW.4
The Facts
On June 29, 1994, a regular audit was conducted on
the cash account and accountable forms of petitioner,
then a Revenue Collection Agent of the Bureau of
Internal Revenue (BIR) in Olongapo City.5
Remedios Soto (Soto), resident Auditor of the BIR in
San Fernando, Pampanga, assigned two of her staff
members, Alfredo Malonzo (Malonzo) and Virginia
Santos (Santos),6 to examine the cash account
inventory of accountable forms, cash book and
transactions of petitioner from December 2, 1993 to
June 29, 1994.7
The initial findings of said audit, based on the
documents and cash produced by petitioner, revealed
no cash shortage on his account. The accountable
forms consisting of Revenue Official Receipts and the
documentary stamps were complete and intact. Based
on petitioner’s cash book, all his collections were
remitted to the Philippine National Bank (PNB).8 The
total amount of ₱ 340,950.37, for which petitioner was
accountable,9 appeared to have been deposited at the
PNB, Olongapo City Branch, as evidenced by the
deposit slips and official receipts issued by the PNB,
which were attached to the record kept by
petitioner.10
As part of the examination process, however, a
confirmation from the government depository bank is
required to verify the initial audit.11 Thus, on July 14,
1994, Soto sent a letter12 to the depository bank, PNB,
requesting confirmation or verification of the
authenticity of the official receipts and deposit slips
attached to the collection reports of petitioner.13
In a reply dated August 24, 1994, PNB returned the
letter-request with a notation that the amounts stated
in three of the official receipts did not tally with their
records, that the official receipt numbers should be
specified to facilitate verification of the other deposit
slips, and that petitioner had not made any deposit
from June 8 to 27, 1994.14
Soto proceeded to the PNB to discuss the matter with
Florida Francisco (Francisco), the State Auditor
assigned at the Olongapo City Branch, who checked
and verified the official receipts and deposit slips
presented by petitioner.15
In his Letter-reply16 dated February 17, 1994,
addressed to Soto, Felixberto De Guzman (De
Guzman), Department Manager of the PNB Olongapo
City Branch, detailed the discrepancies in the amounts
stated in the actual receipts in the possession of the
PNB and the amounts stated in the receipts as reported
by petitioner as follows:
Please take note of the following discrepancies on the
amount of the actual receipts and the amount of
receipts as reported:

PNB DATE AMOUNT AMOUNT OF

OR NO. REPORTED ACTUAL
RECEIPT
 977793 1/13/94 ₱163,674.87 ₱ 12,574.87
975653 2/04/94 31,407.00 3,183.00
976408 3/30/94 25,120.00 6,075.00

I further certify the authenticity of deposit slip with

deposit number 94-4 dated May 31, 1994 in the
amount of P10,929.50. However, the rest of the
deposit slips reported were not actually transacted in
this office and are considered void, as follows:

DEPOSIT SLIP AMOUNT DATE

Deposit Slip No. 94-5 ?25,304.00 6/8/94
Deposit Slip No. 94-6 33,305.00 6/10/94
Deposit Slip No. 94-7 18,282.00 6/16/94
Deposit Slip No. 94-8 13,801.00 6/24/94
Deposit Slip No. 94-9 2,772.00 6/27/94

Soto prepared a letter of demand17 dated August 23,

1994, which contained a summary of the discrepancies
as noted by the PNB, and disclosed that petitioner had
incurred a cash shortage amounting to ₱
291,783.00.18 Soto then requested petitioner to come
to her office to personally receive the demand letter.19
Petitioner then wrote a reply letter20 dated August 23,
1994, addressed to the resident auditor, admitting his
cash shortage purportedly to get even with the BIR
which failed to promote him but promised to pay the
amount as soon as possible.21
Thereafter, a special arrangement was made between
the BIR and petitioner, wherein the BIR would
withhold the salary of petitioner and apply the same
to the shortage incurred until full payment of the
accountability was made.22
Notwithstanding, the Information dated March 6,
1996, was filed against petitioner before the RTC.
Upon arraignment on August 9, 1996, petitioner
pleaded not guilty.
The Ruling of the RTC
During trial, the prosecution presented Soto, Santos,
Francisco, and Dolores Robles23 as its witnesses.
Petitioner, on the other hand, did not take the witness
stand, and opted instead to submit documentary
evidence showing that he had paid for the shortage by
means of deductions from his salary in the total
amount of ₱ 291,783.00.24
Giving credence to the evidence of the prosecution,
and finding that payment of the amount malversed
was not a defense, the RTC convicted petitioner as
charged. It did, however, consider restitution of the
malversed amount as a mitigating circumstance. The
dispositive portion of the RTC Decision dated
September 21, 1999, reads:
WHEREFORE, in view of the foregoing
considerations, the Court finds the accused Guillermo
Cua guilty beyond reasonable doubt of the crime of
Violation of Article 217 of the Revised Penal Code for
Malversation of Public Funds and hereby sentences
him to SEVENTEEN (17) YEARS, FOUR (4) MONTHS
and ONE (1) DAY to TWENTY (20) YEARS of
Reclusion Temporal and to suffer perpetual special
disqualification to hold public office.
SO ORDERED.25
The Ruling of the CA
On appeal to the CA, petitioner argued that the special
arrangement with the BIR was synonymous to an
absolution of his criminal liability, and the State had,
in effect, pardoned him. The CA, however, held that
restitution only extinguished petitioner’s civil liability
but not his criminal liability. It, thus, agreed with the
RTC in finding that petitioner’s guilt was proven
beyond a reasonable doubt. Nonetheless, the CA found
that the RTC failed to apply the Indeterminate
Sentence Law and to impose the corresponding fine as
provided in Article 217 of the Revised Penal Code, and
thus, modified the penalty accordingly. The
dispositive portion of the assailed CA Decision dated
June 8, 2004, is as follows:
WHEREFORE, premises considered, the instant
appeal is DENIED. However, the 21 September 1999
Decision of the Regional Trial Court of Olongapo City,
Branch 72 is accordingly MODIFIED in that accused-
appellant Guillermo E. Cua is hereby sentenced to
suffer an indeterminate sentence of ten (10) years and
one (1) day as minimum to seventeen (17) years, four
(4) months and one (1) day as maximum and to pay a
fine of Two Hundred Ninety One Thousand Seven
Hundred Eighty Three Pesos (₱ 291,783.00).
SO ORDERED.26
After his motion for reconsideration was denied,
petitioner filed this petition for review.
Issue
Petitioner raises the sole issue of:
WHETHER OR NOT THE PROSECUTION PROVED
THE GUILT OF THE ACCUSED BEYOND
REASONABLE DOUBT.
Petitioner argued that the CA failed to sift, evaluate,
and properly weigh the evidence adduced by the
prosecution. Had it done so, he posited that the CA
could have established that (a) there is not a single iota
of evidence to sustain the charge of malversation of
public funds against petitioner; and (b) the prosecution
itself, admitted, by its own evidence, that the
petitioner remitted to the PNB for deposit the alleged
shortage.
Petitioner averred that the prosecution admitted the
authenticity of the PNB official receipts, deposit slips,
and remittance advices which petitioner submitted for
audit, when it offered them in its formal offer of
evidence "to prove that petitioner collected the said
amounts and deposited the same to the PNB Olongapo
Branch." Furthermore, he pointed out that De
Guzman contradicted himself when he enumerated
the discrepancies because he had actually confirmed
the authenticity of the aforementioned PNB
documents in his letter-reply to the BIR dated
November 17, 1994, which stated that he was
"confirming the authenticity" of the said documents.
Petitioner, thus, contended that he did, in fact, deposit
the full amount of his accountability. He attributed the
discrepancy between the amounts he deposited and
the amounts actually received by the PNB to an
irregularity within the PNB. He suggested that the
bank teller might not have reported to the bank the
entire amounts received from him.
Petitioner goes on to highlight that all the deposit slips
were stamped "RECEIVED/DEPOSITED CASH
DIVISION PNB-OLONGAPO." He noted that De
Guzman, the PNB employee who prepared the PNB
letter outlining the discrepancies, was not called to the
stand by the prosecution to testify. He argued that
Francisco, who noted the said letter, was not
competent to testify on it as she was not the one who
prepared it.
Petitioner also contended that adding all the amounts
in the official receipts and deposit slips, his total
accountability is only ₱ 332,961.37, and not ₱
340,950.37. Thus, the BIR overcalculated his total
accountability by ₱ 7,989.00.
Finally, petitioner claimed that the settlement of the
shortage was forced upon him by the Commission on
Audit (COA), and not a voluntary arrangement. He
averred that Soto requested the BIR to withhold his
salary and apply the same to the shortage, without his
consent.
The Ruling of the Court
The Court finds petitioner’s arguments to be devoid of
merit.
At the outset, it should be stressed that in a petition for
review under Rule 45 of the Rules of Court, only
questions of law may be raised. Thus, questions of fact
are not reviewable. It is not the Court’s function to
analyze or weigh all over again the evidence already
considered in the proceedings below, its jurisdiction
being limited to reviewing only errors of law that may
have been committed by the lower court. As such, a
question of law must not involve an examination of
the probative value of the evidence presented by the
litigants. The resolution of factual issues is the
function of lower courts, whose findings on these
matters are accorded respect.27
A question of law exists when the doubt centers on
what the law is on a certain set of facts. A question of
fact exists when the doubt centers on the truth or
falsity of the alleged facts. There is a question of law if
the issue raised is capable of being resolved without
need of reviewing the probative value of the evidence.
Thus, the issue to be resolved must be limited to
determining what the law is on a certain set of facts.
Once the issue invites a review of the evidence, the
question posed is one of fact.28
Petitioner raises the sole issue that the prosecution
failed to establish his guilt beyond reasonable doubt on
the ground that the evidence shows that he did not
incur a shortage of ₱ 291,783.00. He argues that as an
exception to the rule that factual findings and
conclusions of the CA are binding on this Court, the
CA plainly overlooked certain facts of substance and
value which, if considered, would alter the result of
the case.
The Court disagrees.
The resolution of the issue raised by petitioner
necessarily requires the re-evaluation of the evidence
presented by both parties. This is precisely a question
of fact proscribed under Rule 45. Petitioner has failed
to establish that the present case falls under any of the
exceptions29 to said rule. On the other hand, the
factual findings of the RTC were affirmed by the CA,
and as such, are final and conclusive and may not be
reviewed on appeal. On this ground alone, the petition
must be denied.
Nonetheless, even granting that the present case falls
under one of the exceptions, the petition should still
be denied.
Malversation is defined and penalized under Article
217 of the Revised Penal Code, to wit:
Art. 217. Malversation of public funds or property.
Presumption of malversation. - Any public officer
who, by reason of the duties of his office, is
accountable for public funds or property, shall
appropriate the same, or shall take or misappropriate
or shall consent, or through abandonment or
negligence, shall permit any other person to take such
public funds or property, wholly or partially, or shall
otherwise be guilty of the misappropriation or
malversation of such funds or property, shall suffer:
1. The penalty of prision correccional in its
medium and maximum periods, if the amount
involved in the misappropriation or malversation
does not exceed two hundred pesos.
2. The penalty of prision mayor in its minimum
and medium periods, if the amount involved is
more than two hundred pesos but does not exceed
six thousand pesos.
3. The penalty of prision mayor in its maximum
period to reclusion temporal in its minimum
period, if the amount involved is more than six
thousand pesos but is less than twelve thousand
pesos.
4. The penalty of reclusion temporal in its medium
and maximum periods, if the amount involved is
more than twelve thousand pesos but is less than
twenty-two thousand pesos. If the amount exceeds
the latter, the penalty shall be reclusion
temporal in its maximum period to reclusion
perpetua.
In all cases, persons guilty of malversation shall also
suffer the penalty of perpetual special disqualification
and a fine equal to the amount of the funds malversed
or equal to the total value of the property embezzled.
The failure of a public officer to have duly
forthcoming any public fund or property with which
he is chargeable, upon demand by any duly authorized
officer, shall be prima facie evidence that he has put
such missing funds or property to personal uses.
The elements of the crime of malversation of public
funds are, thus:
1. that the offender is a public officer;
2. that he had the custody or control of funds or
property by reason of the duties of his office;
3. that those funds or property were public funds
or property for which he was accountable; and
4. that he appropriated, took, misappropriated or
consented or, through abandonment or
negligence, permitted another person to take
them.30
In the present case, all the elements are present and
have been proven by the prosecution.
With respect to the first three elements, it has been
established that petitioner was a revenue collection
agent of the BIR.31 He was a public officer who had
custody of public funds for which he was accountable.
Anent the fourth element, such was established when
the PNB confirmed that there was a discrepancy in the
amounts actually received by the PNB and the
amounts stated in the receipts reported by petitioner.
Petitioner, however, disputes this finding.
Firstly, petitioner argues that the prosecution
admitted the authenticity of the PNB documents he
submitted for audit, when it offered such in its formal
offer of evidence "to prove that petitioner collected the
said amounts and deposited the same to the PNB
Olongapo Branch."
Petitioner is mistaken.
A cursory reading of the prosecution’s formal offer of
evidence32 reveals that the PNB documents were not
offered to prove that petitioner "deposited" the stated
amounts, but rather that petitioner "presented"33 the
PNB documents to the COA Auditor to show that he
collected and deposited the amounts stated therein.
Secondly, petitioner argues that the PNB, thru De
Guzman’s letter dated November 17, 1994, actually
confirmed the authenticity of the official receipts,
deposit slips and remittance advices which petitioner
submitted for audit. To support his claim, petitioner
harps on the following statement in the letter:
"confirming the authenticity of your attached certified
xerox copies of PNB Official Receipts, deposit slips and
remittance invoices found as attachments in the
collection reports of Mr. Guillermo E. Cua."34
The Court is not persuaded.
A review of the said letter will reveal that the above-
quoted statement was taken out of context by
petitioner. The phrase relied upon was not a
confirmation by the PNB that the submitted
documents were authentic, but was a mere reference
to the letter of Soto requesting the PNB to confirm the
authenticity of said documents. In fact, the letter
precisely enumerates discrepancies and inauthentic
documents in the papers which were submitted to the
PNB for confirmation.
For clarity, this correspondence is reproduced
hereunder as follows:
November 10, 1994
The Manager
Philippine National Bank
Olongapo City
Thru: The Branch Auditor
Commission on Audit
PNB, Olongapo City
S i r:
We are currently in the process of finalizing our cash
examination report on the cash and accounts of Mr.
Guillermo E. Cua, Revenue Collection Agent of BIR,
Olongapo City.
In consonance with the reporting requirements of the
COA Regonal Office III, San Fernando, Pampanga,
please confirm the authenticity of the attached
certified xerox copies of PNB Official Receipts, deposit
slips and remittance advices found as attachments in
the collection reports of Mr. Guillermo E. Cua, as
follows:

PNB OR No./Deposit Slip Amount Date

977793 ₱ 163,674.87 1/13/94
975653 31,407.00 2/4/94
976408 25,120.00 3/30/94
Deposit Slip No. 94-4 10,929.50 5/31/94
Deposit Slip No. 94-5 25,304.00 6/8/94
Deposit Slip No. 94-6 33,305.00 6/10/94
Deposit Slip No. 94-7 18,282.00 6/16/94
Deposit Slip No. 94-8 13,801.00 6/24/94
Deposit Slip No. 94-9 2,772.00 6/27/94
For this purpose, may we request your good office to
issue a certification stating whether or not the above
PNB OR Nos./Deposit Slips together with their
attachments (i.e. Remittance Advices or Inter-Office
Savings Deposit Slip) were issued or stamped
"RECEIVED" by any one of your authorized bank
personnel.
Your early action hereon is earnestly requested.
Very truly yours,
REMEDIOS P. SOLO
State Auditor IV35
November 17, 1994
MS. REMEDIOS P. SOTO
State Auditor IV
Bureau of Internal Revenue
Regional Office No. IV
San Fernando, Pampanga
This is in response to your letter dated November 10,
1994 confirming the authenticity of your attached
certified xerox copies of PNB Official Receipts, deposit
slips and remittance invoices found as attachments in
the collection reports of Mr. Guillermo E.
Cua. (Emphasis supplied)
Please take note of the following discrepancies on the
amount of the actual receipts and the amount of
receipts as reported:

PNB DATE AMOUNT AMOUNT OF

OR NO. REPORTED ACTUAL
RECEIPT
977793 1/13/94 ₱ 163,674.87 ₱ 12,574.87
975653 2/04/94 31,407.00 3,183.00
976408 3/30/94 25,120.00 6,075.00

I further certify the authenticity of deposit slip with

deposit number 94-4 dated May 31, 1994 in the
amount of ₱ 10,929.50. However, the rest of the
deposit slips reported were not actually transacted in
this office and are considered void, as follows:

DEPOSIT SLIP AMOUNT DATE

 Deposit Slip No. 94-5 ₱ 25,304.00 6/8/94
Deposit Slip No. 94-6 33,305.00 6/10/94
Deposit Slip No. 94-7 18,282.00 6/16/94
Deposit Slip No. 94-8 13,801.00 6/24/94
Deposit Slip No. 94-9 2,772.00 6/27/94

Attached herewith are the certified xerox copies of

PNB Official Receipts, Remittance Advice and Deposit
slips actually issued/received by this office.
This certification is being issued for whatever legal
purposes it may serve.
Thank you.
Very truly yours,
(sgd)
FELIXBERTO D. DE GUZMAN
Department Manager III
NOTED BY:
(sgd)
FLORIDA F. FRANCISCO
State Auditor III36
Petitioner, nevertheless, attempted to attribute the
discrepancy to an irregularity internal to the PNB. He,
however, failed to prove this allegation. More
importantly, he acknowledged the discrepancy in his
reply to the demand letter of Soto, where he admitted
taking from his daily collections in retaliation for not
being promoted, and even promised to pay back the
amount taken. Said reply37 is reproduced hereunder as
follows:
August 23, 1994
The Resident Auditor
COA – BIR IV
Revenue Region No. IV
San Fernando, Pampanga
M a d a m:
This is to acknowledge receipt of your demand letter
dated August 23, 1994 regarding the examination of
my cash and accounts as Revenue Collection Officer of
Olongapo City in which the shortage of ₱ 294,516.00
was discovered.
I am a very frustrated Collection Officer. Since
November 1985 to date, I have not been promoted to
a higher position in the Bureau. Prior to the
Standardization Law, I was already holding the item of
a Revenue Collector II. But instead of being promoted,
I received the item of a Revenue Officer I when the
Standardization Law was implemented. As Collection
Officer of Olongapo City, I practically collected the
main bulk of the Revenue collection of the district. I
don’t know who are to be blamed for the oversight of
my efforts. I remained stagnant as Revenue Officer I.
What is very disheartening is the fact that my Clerks
and other Clerks who handle practically no
accountability have been promoted and are now equal
to my position receiving the same salary as I do.
Perhaps, to get even, I slowly dipped my fingers into
my daily collections. I know that this is wrong.
I have no intention of leaving the country and I
promise to pay the amount of ₱ 294,516.00 as soon as
possible.
Very truly yours,
(sgd)
GUILLERMO E. CUA
(Emphases supplied)
Petitioner did not object to or deny the said letter
during trial, and chose to remain silent on the matter.
This Court has held that to justify conviction for
malversation of public funds or property, the
prosecution has only to prove that the accused
received public funds or property and that he could
not account for them, or did not have them in his
possession and could not give a reasonable excuse for
their disappearance. An accountable public officer
may be convicted of malversation even if there is no
direct evidence of misappropriation, and the only
evidence is that there is a shortage in his accounts
which he has not been able to satisfactorily explain.38
In the present case, considering that the shortage was
duly proven by the prosecution, petitioner’s
retaliation against the BIR for not promoting him
clearly does not constitute a satisfactory or reasonable
explanation for his failure to account for the missing
amount.
Petitioner argues that Francisco, who noted the PNB
letter prepared by De Guzman outlining the
discrepancies in the documents, was not competent to
testify on such, as she was not the one who prepared
it.
This argument cannot prosper.
The objection against the admission of any evidence
must be made at the proper time, as soon as the
grounds therefor become reasonably apparent, and if
not so made, it will be understood to have been
waived.39Furthermore, only matters raised in the
initial proceedings may be taken up by a party thereto
on appeal.40 In the present case, petitioner failed to
object to the admission of the said letter during trial,
and only raised it for the first time on appeal. Even if
the said letter was inadmissible, petitioner had already
admitted his shortage in his letter41dated August 23,
1994, which acknowledged receipt of Soto’s demand
letter and contained his promise to pay.
Petitioner also contends that the BIR overcalculated
his total accountability by ₱ 7,989.00, hence, his total
accountability is only ₱ 332,961.37, and not ₱
340,950.37.
This argument cannot succeed.
This is a question of fact not reviewable by this Court.
The factual finding of the RTC of petitioner’s total
accountability in the amount of ₱ 340,950.37 was
affirmed by the CA, and is again being raised for the
first time on appeal. Furthermore, petitioner has
already previously admitted his shortage in the
amount of ₱ 291,783.00, which he, in fact,
acknowledged and paid.
Petitioner avers that Soto requested the BIR to
withhold his salary and apply the same to the shortage
without his consent.
This argument must again fail.
Firstly, this contention is belied by the BIR
letter42 dated July 9, 1998, addressed to petitioner
which was in reply to his letter dated July 3, 1998,
requesting the BIR to apply his withheld salaries
against his shortage in collection. Hence, such
application was not without his consent because
petitioner himself requested that his salaries be
applied against his shortage. Secondly, petitioner
precisely raised the payment of his shortage as a
defense in the proceedings before the RTC and the CA.
Lastly and most importantly, even granting that such
payment was indeed involuntary, such would not
extinguish his criminal liability.
The Court notes with dismay that petitioner has
adopted two conflicting theories in his
defense.1âwphi1 In fact, all of petitioner’s arguments
before this Court are being raised for the first time on
appeal. Under the proceedings in the RTC and the CA,
petitioner admitted having incurred a cash shortage
but claimed his criminal liability was extinguished by
his payment of the same.43 Before this Court, however,
petitioner argues that he is not criminally liable
because the PNB confirmed the authenticity of the
pertinent documents, and adds that his payment of the
shortage was involuntary and without his consent.
Petitioner’s reliance on these diametrically opposed
defenses renders his present arguments all the more
unbelievable and unavailing. This cannot be
countenanced, as to do so would make a mockery of
established precepts in criminal jurisprudence.44
Considering that the factual findings of the RTC, as
affirmed by the CA, were supported by the evidence
on record, all the elements of the crime of
malversation of public funds were thus duly proven
beyond reasonable doubt.
WHEREFORE, the petition is DENIED. The June 8,
2004 Decision and January 13, 2005 Resolution of the
Court of Appeals in CA-G.R. CR. NO. 24608
are AFFIRMED.
SO ORDERED.
JOSE CATRAL MENDOZA
Associate Justice
WE CONCUR:
PRESBITERO J. VELASCO, JR.
Associate Justice
Chairperson
DIOSDADO M.
ROBERTO A. ABAD
PERALTA
Associate Justice
Associate Justice
JOSE PORTUGAL PEREZ*
Associate Justice
ATTESTATION
I attest that the conclusions in the above Decision had
been reached in consultation before the case was
assigned to the writer of the opinion of the Court’s
Division.
PRESBITERO J. VELASCO, JR.
Associate Justice
Chairperson, Third Division
CERTIFICATION
Pursuant to Section 13, Article VIII of the
Constitution and the Division Chairperson’s
Attestation, I certify that the conclusions in the above
Decision had been reached in consultation before the
case was assigned to the writer of the opinion of the
Court’s Division.
RENATO C. CORONA
Chief Justice
36. Zacaria Candao vs. People and Sandiganbayan, GR
Nos. 186659-710, Oct. 19, 2011

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. Nos. 186659-710 October 19, 2011
ZACARIA A. CANDAO, ABAS A. CANDAO AND
ISRAEL B. HARON, Petitioners,
vs.
PEOPLE OF THE PHILIPPINES AND
SANDIGANBAYAN, Respondents.
DECISION
VILLARAMA, JR., J.:
Assailed in this petition for review on certiorari
under Rule 45 is the Decision1 dated October 29, 2008
and Resolution2 dated February 20, 2009 of the
Sandiganbayan (First Division) finding the petitioners
guilty beyond reasonable doubt of malversation of
public funds under Article 217 of the Revised Penal
Code, as amended.
The Facts
On August 5, 1993, Chairman Pascasio S. Banaria of
the Commission on Audit (COA) constituted a team of
auditors from the central office to conduct an
Expanded Special Audit of the Office of the Regional
Governor, Autonomous Region for Muslim Mindanao
(ORG-ARMM). State Auditors Heidi L. Mendoza
(Team Leader) and Jaime Roxas (Member) were
directed to conduct the said audit under the
supervision of Jaime P. Naranjo (State Auditor V).
From August 24 to September 1, 1993, the expanded
audit was thus conducted on the financial transactions
and operations of ORG-ARMM for the period July
1992 to March 1993.
As stated in Special Audit Office (SAO) Report No. 93-
25 submitted by the audit team, it was found that
illegal withdrawals were made from the depository
accounts of the agency through the issuance of checks
payable to the order of petitioner Israel B. Haron
(Disbursing Officer II) without the required
disbursement vouchers. The following are the details
of the government accounts and the fifty-two (52)
checks3 issued and encashed without proper
supporting documents:
PNB Account No. 370-3208

DATE CHECK NO. SIGNATORIES AMOUNT

ISSUED
December 414431 Israel Haron & 500,000.00
29, 1992 Abas Candao
December 414432 Israel Haron & 439,585.00
29, 1992 Abas Candao
December 414433 Israel Haron & 210,000.00
29, 1992 Abas Candao
January 414487 Israel Haron & 500,000.00
26, 1993 Abas Candao
January 414488 Israel Haron & 500,000.00
26, 1993 Abas Candao
January 414489 Israel Haron & 500,000.00
26, 1993 Abas Candao
February 414493 Israel Haron & 500,000.00
2, 1993 Abas Candao
February 414494 Israel Haron & 500,000.00
2, 1993 Abas Candao
February 414499 Israel Haron & 450,000.00
3, 1993 Abas Candao
February 414500 Israel Haron & 500,000.00
5, 1993 Abas Candao
February 461801 Israel Haron & 500,000.00
5, 1993 Abas Candao
February 461803 Israel Haron & 500,000.00
18, 1993 Zacaria Candao
February 461804 Israel Haron & 104,985.64
18, 1993 Zacaria Candao
February 461876 Israel Haron & 500,000.00
22, 1993 Zacaria Candao
February 461877 Israel Haron & 500,000.00
22, 1993 Zacaria Candao
February 461878 Israel Haron & 500,000.00
22, 1993 Zacaria Candao
February 461879 Israel Haron & 500,000.00
22, 1993 Zacaria Candao
February 461880 Israel Haron & 500,000.00
22, 1993 Zacaria Candao
February 461881 Israel Haron & 500,000.00
22, 1993 Zacaria Candao
February 461888 Israel Haron & 64,000.00
24, 1993 Abas Candao
March 18, 461932 Israel Haron & 500,000.00
1993 Abas Candao
March 18, 461933 Israel Haron & 500,000.00
1993 Abas Candao
March 19, 461934 Israel Haron & 350,000.00
1993 Abas Candao
March 22, 461935 Israel Haron & 500,000.00
1993 Abas Candao
March 22, 461936 Israel Haron & 500,000.00
1993 Abas Candao
TOTAL ₱11,118,

Account No. 844061 (Treasurer of the Philippines)

DATE CHECK SIGNATORIES AMOUNT

ISSUED NO.
January 968739 Israel Haron & 400,000.00
11, Abas Candao
1993
January
11,
1993
January 968740 Israel Haron & 400,000.00
11, Abas Candao
1993
January 968741 Israel Haron & 400,000.00
11, Abas Candao
1993
January 968751 Pandical 120,000.00
13, Santiago & Abas
1993 Candao
January 968804 Israel Haron & 380,000.00
18, Abas Candao
1993
March 974192 Israel Haron & 250,000.00
2, 1993 Zacaria Candao
March 974208 Israel Haron & 500,000.00
4, 1993 Abas Candao
March 974209 Israel Haron & 500,000.00
4, 1993 Abas Candao
March 974210 Israel Haron & 500,000.00
4, 1993 Abas Candao
March 974211 Israel Haron & 500,000.00
4, 1993 Abas Candao
March 974212 Israel Haron & 30,000.00
4, 1993 Abas Candao
March 974227 Israel Haron & 500,000.00
5, 1993 Abas Candao
March 974228 Israel Haron & 500,000.00
5, 1993 Abas Candao
March 974244 Israel Haron & 100,000.00
12, Abas Candao
1993
March 974324 Israel Haron & 500,000.00
18, Abas Candao
1993
March 974325 Israel Haron & 500,000.00
18, Abas Candao
1993
March 974326 Israel Haron & 500,000.00
18, Abas Candao
1993
March 974327 Israel Haron & 500,000.00
18, Abas Candao
1993
March 974328 Israel Haron & 500,000.00
18, Abas Candao
1993
March 974339 Israel Haron & 200,000.00
19, Abas Candao
1993
March 974340 Israel Haron & 25,000.00
19, Abas Candao
1993
March 974341 Israel Haron & 172,000.00
19, Abas Candao
1993
March 979533 Israel Haron & 500,000.00
29, Abas Candao
1993
March 979543 Israel Haron & 500,000.00
29, Abas Candao
1993
March 979544 Israel Haron & 500,000.00
29, Abas Candao
1993
March 979545 Israel Haron & 300,000.00
29, Abas Candao
1993
March 979590 Israel Haron & 150,000.00
30, Abas Candao
1993
TOTAL ₱9,927,000.00
GRAND TOTAL = ₱21,045,570.64

In a letter dated September 10, 1993, Chairman

Banaria demanded from petitioner Haron to produce
and restitute to the ARMM-Regional Treasurer
immediately the full amount of ₱21,045,570.64 and
submit his explanation within seventy-two (72) hours
together with the official receipt issued by the ARMM
Regional Treasurer in acknowledgment of such
restitution.
On April 17, 1998, the Office of the Special Prosecutor,
Office of the Ombudsman-Mindanao, filed in the
Sandiganbayan criminal cases for malversation of
public funds against the following ORG-ARMM
officials/employees: Zacaria A. Candao (Regional
Governor), Israel B. Haron (Disbursing Officer II),
Abas A. Candao (Executive Secretary) and Pandical M.
Santiago (Cashier). They were charged with violation
of Article 217 of the Revised Penal Code, as amended,
under the following informations with identical
allegations except for the varying date, number and
amount of the check involved in each case:
Criminal Case Nos. 24569-24574, 24576-24584, 24593,
24595-246204
(42 counts involving checks in the total amount of
₱17,190,585.00)
That on or about 29 December 1992, in Cotabato City,
Philippines, and within the jurisdiction of this
Honorable Court, accused Israel B. Haron, a low-
ranking public officer being the Disbursing Officer of
the Office of the Regional Governor, and as such is
responsible and accountable for the funds of the said
office in the Autonomous Region in Muslim
Mindanao, in connivance and in conspiracy with
[Abas] Candao, Executive Secretary of the same office,
who is a high ranking officer, while in the
performance of their respective official functions,
taking advantage of their official positions, and
committing the offense in relation to their respective
functions, with gross abuse of confidence, did then and
there wilfully, unlawfully and feloniously withdraw
the amount of P500,000.00 from the depository
account of the Office of the Regional Governor thru
the issuance of Check No. 414431 dated 29 December
1992, payable to the order of accused Israel B. Haron,
without the required disbursement voucher and once
in possession of the said amount withdrawn, wilfully,
unlawfully and feloniously take, misappropriate,
embezzle and convert to their own personal use and
benefit the amount of P500,000.00, to the damage and
prejudice of the government in the aforesaid sum as
abovestated.
CONTRARY TO LAW.
Criminal Case Nos. 24585- 24592 and 245945
(9 counts involving checks in the total amount of
₱3,854,985.64)
That on or about 18 February 1993, in Cotabato City,
Philippines, and within the jurisdiction of this
Honorable Court, accused Israel B. Haron, a low-
ranking public officer being the Disbursing Officer of
the Office of the Regional Governor, and as such is
responsible and accountable for the funds of the said
office in the Autonomous Region in Muslim
Mindanao, in connivance and in conspiracy with
Zacaria Candao, Regional Governor of the same office,
who is a high ranking officer, while in the
performance of their respective official functions,
taking advantage of their official positions, and
committing the offense in relation to their respective
functions, with gross abuse of confidence, did then and
there wilfully, unlawfully and feloniously withdraw
the amount of P500,000.00 from the depository
account of the Office of the Regional Governor thru
the issuance of Check No. 461803 dated 18 February
1993, payable to the order of accused Israel B. Haron,
without the required disbursement voucher and once
in possession of the said amount withdrawn, wilfully,
unlawfully and feloniously take, misappropriate,
embezzle and convert to their own personal use and
benefit the amount of P500,000.00, to the damage and
prejudice of the government in the aforesaid sum as
abovestated.
CONTRARY TO LAW.
Criminal Case No. 245756
That on or about 13 January 1993, in Cotabato City,
Philippines, and within the jurisdiction of this
Honorable Court, accused Israel B. Haron, a low-
ranking public officer being the Disbursing Officer of
the Office of the Regional Governor, and as such is
responsible and accountable for the funds of the said
office in the Autonomous Region in Muslim
Mindanao, in connivance and in conspiracy with
Pandical Santiago and [Abas] Candao, Cashier and
Executive Secretary, respectively, of the same office,
while in the performance of their respective official
functions, taking advantage of their official positions,
and committing the offense in relation to their
respective functions, with gross abuse of confidence,
did then and there wilfully, unlawfully and
feloniously withdraw the amount of P120,000.00 from
the depository account of the Office of the Regional
Governor thru the issuance of Check No. 968751 dated
13 January 1993, payable to the order of accused Israel
B. Haron, without the required disbursement voucher
and once in possession of the said amount withdrawn,
wilfully, unlawfully and feloniously take,
misappropriate, embezzle and convert to their own
personal use and benefit the amount of P120,000.00,
to the damage and prejudice of the government in the
aforesaid sum as abovestated.
CONTRARY TO LAW.
At their arraignment, all accused pleaded not guilty to
the charge of malversation. In the meantime, accused
Santiago died and consequently the case against him
in Criminal Case No. 24575 was dismissed.
The prosecution’s lone witness was Heidi L.
Mendoza,7 COA State Auditor IV. She testified that
their expanded audit, conducted from August 24 to
September 1, 1993, disclosed the illegal withdrawals of
funds from the PNB and Treasury accounts of ORG-
ARMM involving 52 checks issued without the
required disbursement vouchers. Specifically, their
attention was caught by the fact that the Report of
Checks Issued by the Deputized Disbursing Officer
(RCIDDO) showed that the subject 52 checks have no
assigned voucher numbers. The audit team demanded
for the original of said RCIDDO for the months of
December 1992, February and March 1993, which
were supposed to be prepared and submitted by the
disbursing officer, but the ORG-ARMM did not
submit the same. In a letter dated August 24, 1993, the
COA likewise made a demand from the Regional
Governor through the resident auditor for the
production of the original disbursement vouchers and
complete supporting documents of the subject checks.8
In response, the Finance and Budget Management
Services of ORG-ARMM informed the audit team that
the vouchers were already submitted to COA Resident
Auditor, Supervising State Auditor IV Rosalinda
Gagwis, purportedly under transmittal letters dated
March 4 and March 30, 1993. Mendoza then
personally verified from Gagwis who denied having
received the subject vouchers and issued a certification
to that effect. In a letter dated September 10, 1993,
Chairman Banaria finally demanded for the restitution
of the funds illegally withdrawn through the issued 52
checks and to comply with such demand within 72
hours from receipt of said letter. As to the absence of
her signature in the audit report, she explained that
she was already on maternity leave when the interim
report (SAO Report No. 93-25) was submitted.
However, she, together with audit team member
Jaime B. Roxas executed a Joint Affidavit dated May
17, 1996 regarding their conduct of the expanded audit
and their findings and recommendation. Although
Haron submitted copies of disbursement vouchers to
the COA receiving clerk, this was made beyond the
72-hour deadline given to them.9
On cross-examination, witness Mendoza was asked if
the audit team had informed the office or parties
concerned that they are going to be audited (entry
conference). She replied that this was a sensitive
assignment, recalling that they were threatened after
their identities were established during the earlier
audit of the same office such that she had to be brought
back to Manila. At that time, the Regional Governor
was accused Candao. Hence, during the expanded
audit, the team was unable to proceed as in ordinary
situations. While they did an entry conference during
the previous main audit, they were unable to do so at
the time of the expanded audit. Again for security
reasons, the team also did not conduct an exit
conference after field work; they would be risking
their lives if they discuss there and then their findings.
Due to threat to her life, it was her team supervisor
(Naranjo) and member (Roxas) who personally
retrieved the documents in Cotabato City. She
admitted the belated submission of original vouchers
(October 29, 1993) to the COA central office but these
are without supporting documents.10
For the accused, the first witness was Nick Luz Aduana
who was the Director of Finance of ORG-ARMM from
July 1991 until his resignation in March 1993. He
testified that his functions then include the
supervision and overseeing of the three divisions:
Budget, Accounting and Management. When report of
the audit team came out, he was surprised because
they were not informed of the audit. He was familiar
with the 52 checks because the disbursement vouchers
passed through his office. He explained the procedure
with respect to the processing of cash advances as
follows: generally, there were cash advances made in
ARMM which cover travels, salaries, etc. but
particularly for "peace and order campaign," it
emanates from the ORG when the Regional Governor
issues an authority for cash advance, and then they
process the voucher (Finance and Budget Management
Services); once their division have performed their
accounting functions relative to the vouchers, the
same are forwarded to the Regional Governor for
approval or in his absence to his Executive Secretary;
after the approval of the voucher, it will be forwarded
to the Cash Division for the issuance of check; the
person who will liquidate the cash advance is usually
the employee mentioned in the voucher; and after
they have prepared all the liquidation papers, these are
submitted to the Budget and Management Division
before forwarding them to the COA Auditor. He
maintained that the original disbursement vouchers
have already been submitted to the COA Special Audit
Office. Since 1991, they have never received any
notice of disallowance of their disbursements,
including those intended for "peace and order
campaign." Being the first ARMM set of officials, they
had sought the advice of their Auditor as to proper
accounting procedures; they followed the advice of
Auditor Gagwis who said that there should be
authority to cash advance coming from the Regional
Governor which should be given to the Disbursing
Officer. He identified the vouchers presented by the
defense as the ones processed by their division with
the corresponding amounts reflected therein. Insofar
as the expanded audit is concerned, they were not
given the opportunity to defend the case as they were
not given the so-called exit conference.11
On cross-examination, witness Aduana hinted on
political reasons why an expanded audit was
conducted when Regional Governor Pagdanganan
assumed office despite the fact that an earlier audit was
already made during the administration of Governor
Candao. He claimed that he did not receive any copy
of the demand letter dated August 24, 1993; he was no
longer connected with ARMM at the time. He also
maintained that the disbursement vouchers were
processed by their office and entered into their books
of account. However, when asked what happened to
these books of account, Aduana said these are with the
Office of the Regional Governor. He admitted that the
only supporting document for the checks and
vouchers were the authority to cash advance; the
"peace and order campaign" disbursement is peculiar
to ARMM and hence they did not know what
supporting documents to attach. When queried about
the particular activities covered by this "peace and
order campaign" disbursement, Aduana admitted that
he really does not know the breakdown of expenses or
for what items in particular were the disbursed
amounts spent. Their division merely processed the
disbursement vouchers that were prepared by the
ORG, and while his signature appears in said vouchers
his role was limited to certifying the availability of
funds.12
The next witness, Rosalinda G. Gagwis, former COA
Resident Auditor of ORG-ARMM, testified that in
1991 she was the Chief of the Operation and Review
Division (ORD), COA Region XII which at the time
has jurisdiction over ORG-ARMM; she was Auditor-
in-Charge of ORG-ARMM only up to March 8, 1993
when the separation of COA Region XII personnel and
COA-ARMM was implemented. Among her duties as
such Auditor-in-Charge was to conduct a post-audit of
the financial transactions of ORG-ARMM. In the
course of the expanded audit of ORG-ARMM, she was
requested to issue the Certification dated August 27,
1993 stating that she has not received the January to
March 1993 vouchers as stated in the letter of Haron.
Subsequently, on July 22, 1998 she executed a two-
page Affidavit because she has been hearing that her
previous Certification was misinterpreted to mean
that the subject vouchers were "not existing." She then
clarified that actually, ORG-ARMM tried to submit
bundles of vouchers to her office but she refused to
accept them because she was no longer Auditor-in-
Charge of that office as there was already an order
separating COA-Regional Office XII from the COA-
ARMM. She confirmed that when ARMM was a
newly created agency, its officers (Aduana, Brigida
Fontanilla and Bartolome Corpus) sought her advice
regarding accounting procedures. Prior to submission
to her office for post-audit, the accountable officers
like the Cashier and Disbursement Officer prepares
and submits a Monthly Report of Disbursements to the
Accounting Division which, within ten days from
receipt and recording in the Books of Accounts, shall
submit the same to the auditor for post-audit custody.
Based on her experience, however, this deadline was
not strictly observed as 25% to 50% of the national
agencies are delayed in the submission of such reports.
The usual reasons given were the geographical
locations of the offices in Region XII and ARMM, lack
of manpower due to budgetary constraints and lack of
know-how of personnel regarding accounting and
auditing procedures, especially if there is a change in
administration. As far as she can recall, their office had
not issued a notice of disallowance to ORG-ARMM
although notices of suspension have been issued for
minor deficiencies noted during post-audit; these
notices of suspension were usually complied with by
the agency.13
On cross-examination, witness Gagwis said that upon
seeing the bundles of vouchers being submitted to her
office, she immediately refused to accept, and sort of
"washed her hands" by telling her staff that they were
no longer incharge of ORG-ARMM. She did not
actually scan those documents and examine their
contents. She also did not receive the Monthly Report
of Disbursements from said office. As to the execution
of the July 22, 1998 Affidavit, she insisted that she did
it voluntarily five years later in order to clarify herself
after hearing about the case filed in the Sandiganbayan
and her name was being dragged because of the
Certification she made in August 1993. As to the
earlier Certification, she maintained that she did not
receive the subject vouchers and she does not know
where these documents are at present.14
Another witness, Brigida C. Fontanilla, Chief
Accountant, ORG-ARMM, testified that her duties
and responsibilities include the processing, updating
and recording of transactions of ORG-ARMM in the
books of accounts while vouchers are recorded in the
Journal of Analysis and Obligations (JAO). They also
prepared financial reports. As to cash advances, she
explained that the procedure starts with the
preparation of the voucher at ORG which also issues
the authority to withdraw cash advance which is
attached to the disbursement voucher and supporting
documents, afterwhich it is forwarded to the Finance
and Budget Management Services for processing:
there, it is first submitted to the Budget Division for
the request for allotment of obligation, and next
forwarded to the Accounting Division for the journal
entry of obligation and recording in the books of
account, and then the documents are forwarded to the
Office of the Finance Director for his approval, and
thereafter returned back to the ORG for final approval
for the issuance of the check. Presently, their office is
more systematic and organized than it was during the
administration of Governor Candao. Sometime in
1994 during the investigation by the Office of the
Ombudsman relative to the subject illegal
withdrawals, she was summoned to produce the Cash
Receipts Book and Cash Disbursement Book of the
1991 ARMM seed money for regional, provincial and
district Impact Infrastructure Projects. However, she
was not able to comply with the said directive because
such books are not among those required by the COA
for their office; what the COA directed them to
maintain was the JAO, a book of original entry for
allotments received and disbursements for the
transactions of ORG-ARMM. She wrote a letter-reply
to the Ombudsman Investigator and transmitted the
original 1992 JAO which was never returned to their
office.15
Explaining the contents of the JAO, witness Fontanilla
said that the entries in the voucher are recorded
therein: an obligation number is placed in the request
of allotment (ROA) which also appears in the voucher.
Before such recording in the JAO, the disbursement
vouchers are presented to their office. Actually, she
does not know whether the 1992 JAO still exists or
with the Ombudsman Investigator because at the time,
they were holding office temporarily at the office of
ORG Auditor which unfortunately got burned
sometime in 1996.16
As for witness Bartolome M. Corpus, his deposition
upon oral examination was taken on August 27, 2004
before Atty. Edipolo Sarabia, Clerk of Court, Regional
Trial Court of Davao City. He testified that in 1991 he
was appointed Chief of the Management Division of
the Finance and Budget Management Services
(FBMS), ORG-ARMM. He was placed on floating
status for three years by the new Chief of Staff of
ORG-ARMM (Nasser Pangandaman) upon the
election of a new Regional Governor, Lininding
Pangandaman who defeated Governor Candao. As
Finance Director, it was his responsibility to review all
transactions of the ORG-ARMM and see to it that
COA regulations are in place and supporting
documents are complete. After reviewing documents,
which include disbursement vouchers, his office
submits the same to the COA Regional Officer or to
the COA Resident Auditor. Being the internal control
unit of ORG-ARMM, all transactions and supporting
documents must pass through his office. As to the
transactions covered by the subject 52 checks, he
confirmed that these passed through his office,
including the disbursement vouchers, afterwhich
these were forwarded to the Accounting Office and
then to the Cash Division for issuance of checks. He
claimed that his subordinates tried to submit the
disbursement vouchers to the Resident Auditor, as
shown by the transmittal letters dated March 4 and
March 30, 1993. However, Ms. Gagwis refused to
accept the vouchers because she was no longer the
Resident Auditor at the time. During the time of
Governor Candao, he does not recall having received
any notice of disallowance from the COA although
there were times they received a notice of suspension
which had been settled. During the time he was on
floating status, he discovered that some vouchers
including those original vouchers covered by the
subject 52 checks were still in his filing cabinet. He
then handed them over to Haron. In 1996, he was
reinstated by Governor Nur Misuari.17
On cross-examination, witness Corpus said that they
tried to submit the vouchers to Gagwis sometime in
late March or early April 1993. He was not aware of
the August 27, 1993 Certification issued by Gagwis.
When asked about the stated purpose "peace and order
campaign" in the cash advance vouchers, he confirmed
that this was the practice at that time and it was only
during liquidation that ORG will have the list of
expenses; the supporting documents will come only
after the issuance of the check.18 On re-direct
examination, he maintained that there were previous
similar vouchers for "peace and order campaign"
which have not been disallowed but only suspended
by the COA.19
Sandiganbayan Ruling
By Decision dated October 29, 2008, the
Sandiganbayan found petitioner Haron guilty beyond
reasonable doubt of malversation of public funds
under Article 217 of the Revised Penal Code, as
amended, committed in conspiracy with petitioners
Zacaria A. Candao and Abas A. Candao who were
likewise sentenced to imprisonment and ordered to
pay a fine equivalent to the amount of the check in
each case, as follows:
Criminal Case Nos. 24569-24584,
24593, 24595-24620
Israel B. Haron and Abas A. Candao - convicted of 43
counts of Malversation of Public Funds and each was
sentenced to indeterminate prison term in each case of
ten (10) years and one (1) day of prision mayor, as
minimum, to eighteen (18) years, eight (8) months and
one (1) day of reclusion temporal, as maximum, and
ordered to pay a fine in each case equivalent to the
particular check involved, without subsidiary
imprisonment in case of insolvency and the penalty of
perpetual special disqualification to hold public office
and other accessory penalties provided by law. In the
service of their respective sentences, they shall be
entitled to the benefit of the three-fold rule as
provided in Art. 70 of the Revised Penal Code, as
amended.
Criminal Case Nos. 24585-24592 & 24594
Israel B. Haron and Zacaria A. Candao – convicted of
9 counts of Malversation of Public Funds and each was
sentenced to indeterminate prison term in each case of
ten (10) years and one (1) day of prision mayor as
minimum, to eighteen (18) years, eight (8) months and
one (1) day of reclusion temporal, as maximum, and
ordered to pay a fine in each case equivalent to the
particular check involved, without subsidiary
imprisonment in case of insolvency and the penalty of
perpetual special disqualification to hold public office
and other accessory penalties provided by law. In the
service of their respective sentences, they shall be
entitled to the benefit of the three-fold rule as
provided in Art. 70 of the Revised Penal Code, as
amended.20
The Sandiganbayan found no merit in petitioners’
claim that the subject checks were covered by existing
disbursement vouchers which were belatedly
submitted and received by the COA Central Office on
October 29, 1993. It said that had those vouchers really
existed at the time of the 52 withdrawals petitioners
made from December 29, 1992 to March 30, 1993,
petitioner Haron could have readily produced them
when required to do so by the special audit team on
August 24, 1993. Said court likewise did not give
credence to the testimony of Corpus in view of the
August 27, 1993 Certification issued by then COA
Auditor Gagwis that she has not received the vouchers
mentioned in the transmittal letters. Gagwis’
explanation, on the other hand, contradicted the
testimony of Corpus that when he returned to his
office sometime in May 1993, he found the original
vouchers together with the transmittal letters still
there in his filing cabinet and have not been submitted
to the COA Resident Auditor.
The Sandiganbayan noted that petitioners presented
no proof that the cash advances intended for "peace
and order campaign" were spent for public purposes,
as in fact the alleged disbursement vouchers did not
indicate any detail as to the nature of the expense/s
such as purchase of equipment, services, meals, travel,
etc. and there were no supporting documents such as
the Request for Issuance of Voucher, Purchase
Request and Inspection Report of the items supposedly
purchased. More importantly, the vouchers were not
accomplished in accordance with existing COA
circulars because they are unnumbered and undated.
Hence, the belatedly submitted vouchers are of
doubtful veracity or origin, nay, a fabricated evidence
or, as pointed out by the prosecution, "self-serving or
an afterthought, belatedly prepared to give the illegal
disbursements amounting to the aggregate amount of
more than ₱21M, a semblance of regularity."21 As to
the JAO and Certification dated August 18, 1998 issued
by Chief Accountant Fontanilla, the Sandiganbayan
found there is nothing therein to indicate the
particular disbursement voucher that corresponds to
each of the subject 52 checks which were neither
reflected in the JAO.
With respect to petitioners’ assertion that the audit
conducted by the COA special audit team was
incomplete and tainted as it did not follow procedures
because the person audited were not notified thereof,
the Sandiganbayan found these allegations
unsubstantiated as in fact at the start of the audit on
August 24, 1993, the audit team thru their team leader
State Auditor Naranjo, informed the management of
ORG-ARMM thru the COA Resident Auditor of the
expanded special audit to be conducted as they even
requested for the original copies of the disbursement
vouchers together with their complete supporting
documents covering the 52 checks. But despite said
letter, the ORG-ARMM failed to heed the audit team’s
request. For the failure of petitioner Haron to account
for the funds involved in the illegal withdrawals when
asked to do so, the presumption arose that he
misappropriated the same, which presumption was
not overcome by defense evidence.
On the respective liabilities of petitioners Zacaria A.
Candao and Abas A. Candao, the Sandiganbayan held
that by their act of co-signing the subject checks,
petitioner Haron was able to consummate the illegal
withdrawals without the required disbursement
vouchers of the amounts covered by the 43 checks (for
Abas) and 9 checks (for Zacaria). Thus, by their
collective acts, said court concluded that petitioners
conspired to effect the illegal withdrawals of public
funds which, when required by the COA to be
properly accounted for, petitioners failed to do so.
In its Resolution dated February 20, 2009, the
Sandiganbayan denied the prosecution’s motion to
cancel bail bonds and petitioners’ motion for
reconsideration.
The Petition
Petitioners raised the following grounds for their
acquittal:
1. …THE SANDIGANBAYAN...COMMITTED A
REVERSIBLE ERROR IN CONVICTING THE
ACCUSED PETITIONERS FOR THE CRIME OF
MALVERSATION OF PUBLIC FUNDS DESPITE
PROOF POSITIVE THAT, CONTRARY TO
WHAT THE INFORMATIONS CHARGED,
THERE WERE DISBURSEMENT VOUCHERS
EXCEPT THAT THE COA REFUSED TO ACCEPT
MUCH LESS EXAMINE THE SAME.
PETITIONERS WERE THUS DENIED DUE
PROCESS OF LAW WHEN THEY WERE
 CONVICTED FOR OFFENSES NOT COVERED
BY THE INFORMATIONS AGAINST THEM.
2. ….THE SANDIGANBAYAN COMMITTED A
REVERSIBLE ERROR IN NOT APPLYING THE
"EQUIPOISE RULE" WHICH IF APPLIED
WOULD HAVE RESULTED IN THE
ACQUITTAL OF THE ACCUSED-PETITIONERS.
3. … THE SANDIGANBAYAN COMMITTED A
REVERSIBLE ERROR IN CONVICTING
ACCUSED PETITIONERS ZACARIA A.
CANDAO AND ABAS A. CANDAO DESPITE
THE FACT THAT THE CHARGE OF
CONSPIRACY WHICH IS THEIR ONLY LINK
TO THE OFFENSES HEREIN HAS NOT BEEN
PROVEN BEYOND REASONABLE DOUBT.22
Our Ruling
The petition has no merit.
Article 217 of the Revised Penal Code, as amended,
provides:
Art. 217. Malversation of public funds or property –
Presumption of malversation. - Any public officer
who, by reason of the duties of his office, is
accountable for public funds or property, shall
appropriate the same, or shall take or misappropriate
or shall consent, or through abandonment or
negligence, shall permit any other person to take such
public funds or property, wholly or partially, or shall
otherwise be guilty of the misappropriation or
malversation of such funds or property, shall suffer:
1. The penalty of prision correccional in its
medium and maximum periods, if the amount
involved in the misappropriation or malversation
does not exceed two hundred pesos.
2. The penalty of prision mayor in its minimum
and medium periods, if the amount involved is
more than two hundred pesos but does not exceed
six thousand pesos.
3. The penalty of prision mayor in its maximum
period to reclusion temporal in its minimum
period, if the amount involved is more than six
 thousand pesos but is less than twelve thousand
pesos.
4. The penalty of reclusion temporal in its medium
and maximum periods, if the amount involved is
more than twelve thousand pesos but is less than
twenty-two thousand pesos. If the amount exceeds
the latter, the penalty shall be reclusion
temporal in its maximum period to reclusion
perpetua.
In all cases, persons guilty of malversation shall also
suffer the penalty of perpetual special disqualification
and a fine equal to the amount of the funds malversed
or equal to the total value of the property embezzled.
The failure of a public officer to have duly
forthcoming any public fund or property with which
he is chargeable, upon demand by any duly authorized
officer, shall be prima facie evidence that he has put
such missing funds or property to personal uses.
(Emphasis supplied.)
The following elements are essential for conviction in
malversation cases:
 1. That the offender is a public officer;
2. That he had custody or control of funds or
property by reason of the duties of his office;
3. That those funds or property were public funds
or property for which he was accountable; and
4. That he appropriated, took, misappropriated or
consented or, through abandonment or
negligence, permitted another person to take
them.23
All the foregoing elements were satisfactorily
established by the prosecution in this case. Petitioners
have not rebutted the legal presumption that with the
Disbursing Officer’s (Haron) failure to account for the
illegally withdrawn amounts covered by the subject
checks when demanded by the COA, they
misappropriated and used the said funds for their
personal benefit.
Petitioners however assert that their convictions were
based solely on the Sandiganbayan’s conclusion that
the vouchers submitted by the defense were illegal or
irregular, whereas the informations simply alleged
their absence or non-existence. They contend that said
court could not have validly assessed the disbursement
vouchers as to their legality because that duty pertains
to the COA which refused and failed to examine the
same. Had the court allowed the COA to evaluate and
make a ruling on the validity of the vouchers, the
result would have been different and most probably
they would have been acquitted of the crime charged.
We are not persuaded by petitioners’ asseveration.
The Sandiganbayan categorically ruled that the
disbursement vouchers were inexistent at the time of
the issuance of the subject checks and expanded
special audit based on its findings that: (1) petitioner
Haron could not produce the vouchers upon demand
by the COA in August 1993; (2) Resident Auditor
Gagwis certified at about the same time that to date
she has not received the vouchers mentioned in the
supposed transmittal letters of March 4 and March 30,
1993; (3) the entries in the duly certified Report of
Checks Issued by Deputized Disbursing Officer
(RCIDDO) of the late Pandical M. Santiago, Cashier of
ORG-ARMM, showed that for the months of January,
February and March 1993, there were indeed entries
of checks issued with Haron as payee but no
disbursement voucher numbers as these were either
lacking, detached or missing, and which were verified
by the audit team as corresponding to the subject 52
checks issued and signed by petitioners and encashed
by petitioner Haron who received the money
withdrawn from the government depositary accounts;
(4) FBMS Chief Corpus testified that he discovered the
supposed vouchers still there at his office filing cabinet
in May 1993 when these supposedly have already been
submitted to the COA Resident Auditor as reflected in
the March 4 and March 30, 1993 transmittal letters;
and (5) the supposed original disbursement vouchers
belatedly submitted to the COA central office last
week of October 1993, were undated and unnumbered
with no supporting documents as required by COA
Circular No. 78-79 (April 5, 1978).
Contrary to petitioners’ claim, the special audit team
could not have examined the vouchers presented by
the defense (Exhibits "1" to "1-A-43") because the only
indication of its actual receipt by the COA as admitted
by the prosecution, was on October 23, 1993 long after
the expanded audit was completed and beyond the 72-
hour deadline specified in the September 10, 1993
demand letter addressed to Haron for the restitution
of the total amount of illegal withdrawals. In addition,
such disbursement vouchers have no supporting
documents as required by COA Circular No. 92-389
dated November 3, 1992. On the other hand, the
Certification dated August 18, 1998 issued by ARMM
Chief Accountant Fontanilla stating that the vouchers
were regular because these were properly recorded in
the JAO, was not given credence by the
Sandiganbayan. Upon scrutiny of the JAO covering
the period January to March 1993, said court found
that it failed to indicate the particular disbursement
voucher that corresponds to each of the 52 checks,
aside from the fact that it was prepared by the ARMM
Chief Accountant who is under the control and
supervision of the ORG. Notably, the JAO is used to
summarize obligations incurred and to monitor the
balance of unobligated allotments, which is prepared
by function, and project for each fund and allotment
class.24 The JAO is thus separate and distinct from the
Report of Checks Issued (RCI) which is prepared by
the Disbursing Officer to report checks issued for
payment of expenditures and/or prior accounts
payable. What is clear is that the disbursement of
funds covered by the 52 checks issued by the
petitioners are subject to the rule that disbursement
voucher "shall be used by all government entities for
all money claims" and that the "voucher number shall
be indicated on the voucher and on every supporting
document."25 Inasmuch as the JAO for the months of
January, February and March 1993 do not at all reflect
or indicate the number of each of the disbursement
vouchers supposedly attached to the 52 checks, it
cannot serve as evidence of the recording of the
original vouchers, much less the existence of those
disbursement vouchers at the time of the issuance of
the 52 checks and the conduct of the expanded audit.
Petitioners further raise issue on the regularity,
completeness and objectivity of the expanded audit
conducted by the COA. However, records showed that
the ORG-ARMM were duly notified of the expanded
audit at its commencement and was even requested
thru the COA Resident Auditor to submit the needed
disbursement vouchers. It must be noted that at an
earlier date, a main audit had already been conducted
for the financial transactions of ORG-ARMM during
which State Auditor Mendoza experienced threats
against her own security that she had to be
immediately recalled from her assignment. Thus, by
the time the expanded audit was conducted in August
1993 upon the directive of the COA Chairman,
petitioners, especially Haron, should have seen to it
that the records of disbursements and financial
transactions including the period January to March
1993, were in order and available for further audit
examination. In any case, even if there was no so-
called entry conference held, there is absolutely no
showing that petitioners were denied due process in
the conduct of the expanded audit as they simply
refused or failed to heed COA’s request for the
production of disbursement vouchers and likewise
ignored the formal demand made by COA Chairman
Banaria for the restitution of the illegally withdrawn
public funds, submitting their compliance only after
the special audit team had submitted their report.
In fine, the Sandiganbayan committed no reversible
error in holding that the testimonial and documentary
evidence presented by the petitioners failed to
overcome the prima facie evidence of
misappropriation arising from Haron’s failure to give a
satisfactory explanation for the illegal withdrawals
from the ARMM funds under his custody and control.
Petitioners likewise did not accomplish the proper
liquidation of the entire amount withdrawn, during
the expanded audit or any time thereafter. There is
therefore no merit in petitioners’ argument that the
Sandiganbayan erred in not applying the equipoise
rule.
Under the equipoise rule, where the evidence on an
issue of fact is in equipoise or there is doubt on which
side the evidence preponderates, the party having the
burden of proof loses. The equipoise rule finds
application if the inculpatory facts and circumstances
are capable of two or more explanations, one of which
is consistent with the innocence of the accused and the
other consistent with his guilt, for then the evidence
does not fulfill the test of moral certainty, and does not
suffice to produce a conviction.26 Such is not the
situation in this case because the prosecution was able
to prove by adequate evidence that Disbursing Officer
Haron failed to account for funds under his custody
and control upon demand, specifically for the
₱21,045,570.64 illegally withdrawn from the said
funds. In the crime of malversation, all that is
necessary for conviction is sufficient proof that the
accountable officer had received public funds, that he
did not have them in his possession when demand
therefor was made, and that he could not satisfactorily
explain his failure to do so. Direct evidence of personal
misappropriation by the accused is hardly necessary in
malversation cases.27
As to the liability of petitioners Zacaria A. Candao and
Abas A. Candao, the Sandiganbayan correctly ruled
that they acted in conspiracy with petitioner Haron to
effect the illegal withdrawals and misappropriation of
ORG-ARMM funds.
Conspiracy exists when two or more persons come to
an agreement concerning the commission of a felony
and decide to commit it. Conspiracy need not be
proved by direct evidence and may be inferred from
the conduct of the accused before, during and after the
commission of the crime, which are indicative of a
joint purpose, concerted action and concurrence of
sentiments. In conspiracy, the act of one is the act of
all. Conspiracy is present when one concurs with the
criminal design of another, indicated by the
performance of an overt act leading to the crime
committed. It may be deduced from the mode and
manner in which the offense was perpetrated.28
In this case, petitioners Zacaria A. Candao and Abas A.
Candao were co-signatories in the subject checks
issued without the required disbursement vouchers.
Their signatures in the checks, as authorized officials
for the purpose, made possible the illegal withdrawals
and embezzlement of public funds in the staggering
aggregate amount of ₱21,045,570.64.1avvphil
Petitioners Zacaria A. Candao and Abas A. Candao
assail their conviction as co-conspirators in the crime
of malversation contending that their only
participation was in the ministerial act of signing the
checks. The checks having passed through processing
by finance and accounting personnel of ORG-ARMM,
petitioners said they had to rely on the presumption of
regularity in the performance of their subordinates’
acts. Furthermore, they assert that since conspiracy
requires knowledge of the purpose for which the
crime was committed, they could not have been
conspirators in the design to defraud the government.
We disagree with such postulation.
As the Regional Governor of ARMM, petitioner
Zacaria A. Candao cannot exonerate himself from
liability for the illegally withdrawn funds of ORG-
ARMM. Under Section 102 (1) of the Government
Auditing Code of the Philippines, he is responsible for
all government funds pertaining to the agency he
heads:
Section 102. Primary and secondary responsibility.
– (1) The head of any agency of the government
is immediately and primarily responsible for all
government funds and property pertaining to his
agency.
x x x x (Emphasis supplied.)
Petitioners Zacaria A. Candao and his Executive
Secretary Abas A. Candao are both accountable public
officers within the meaning of Article 217 of
the Revised Penal Code, as amended. No checks can be
prepared and no payment can be effected without
their signatures on a disbursement voucher and the
corresponding check. In other words, any
disbursement and release of public funds require their
approval,29 as in fact checks issued and signed by
petitioner Haron had to be countersigned by them.
Their indispensable participation in the issuance of the
subject checks to effect illegal withdrawals of ARMM
funds was therefore duly established by the
prosecution and the Sandiganbayan did not err in
ruling that they acted in conspiracy with petitioner
Haron in embezzling and misappropriating such
funds.
Moreover, as such accountable officers, petitioners
Zacaria A. Candao and Abas A. Candao were charged
with the duty of diligently supervising their
subordinates to prevent loss of government funds or
property, and are thus liable for any unlawful
application of government funds resulting from
negligence, as provided in Sections 104 and 105 of
the Government Auditing Code of the Philippines,
which read:
Sec. 104. Records and reports required by primarily
responsible officers. – The head of any agency or
instrumentality of the national government or any
government-owned or controlled corporation and any
other self-governing board or commission of the
government shall exercise the diligence of a good
father of a family in supervising accountable officers
under his control to prevent the incurrence of loss of
government funds or property, otherwise he shall be
jointly and solidarily liable with the person primarily
accountable therefor. x x x x
Sec. 105. Measure of liability of accountable officers. x
xx
(2) Every officer accountable for government funds
shall be liable for all losses resulting from the unlawful
deposit, use, or application thereof and for all losses
attributable to negligence in the keeping of the funds.
The fact that ARMM was still a recently established
autonomous government unit at the time does not
mitigate or exempt petitioners from criminal liability
for any misuse or embezzlement of public funds
allocated for their operations and projects. The
Organic Act for ARMM (R.A. No. 6734) mandates that
the financial accounts of the expenditures and
revenues of the ARMM are subject to audit by the
COA.30 Presently, under the Amended Organic Act
(R.A. No. 9054), the ARMM remained subject to
national laws and policies relating to, among others,
fiscal matters and general auditing.31 Here, the
prosecution successfully demonstrated that the illegal
withdrawals were deliberately effected through the
issuance of checks without the required disbursement
vouchers and supporting documents. And even if
petitioners Zacaria A. Candao and Abas A. Candao
invoke lack of knowledge in the criminal design of
their subordinate, Disbursing Officer Haron, they are
still liable as co-principals in the crime of malversation
assuming such misappropriation of public funds was
not intentional, as alleged in the informations, but due
to their negligence in the performance of their duties.
As this Court ratiocinated in Cabello v.
Sandiganbayan32 :
Besides, even on the putative assumption that the
evidence against petitioner yielded a case of
malversation by negligence but the information was
for intentional malversation, under the circumstances
of this case his conviction under the first mode of
misappropriation would still be in order. Malversation
is committed either intentionally or by negligence.
The dolo or the culpa present in the offense is only a
modality in the perpetration of the felony. Even if the
mode charged differs from the mode proved, the same
offense of malversation is involved and conviction
thereof is proper. A possible exception would be when
the mode of commission alleged in the particulars of
the indictment is so far removed from the ultimate
categorization of the crime that it may be said due
process was denied by deluding the accused into an
erroneous comprehension of the charge against him.
That no such prejudice was occasioned on petitioner
nor was he beleaguered in his defense is apparent from
the records of this case.33 (Emphasis supplied.)
Under Article 217, paragraph 4 of the Revised Penal
Code, as amended, the penalty of reclusion temporal
in its maximum period to reclusion perpetua shall be
imposed if the amount involved exceeds ₱22,000.00, in
addition to fine equal to the funds malversed.
Considering that neither aggravating nor mitigating
circumstance attended the crime charged, the
maximum imposable penalty shall be within the range
of the medium period of reclusion temporal maximum
to reclusion perpetua, or eighteen (18) years, eight (8)
months and one (1) day to twenty (20) years. Applying
the Indeterminate Sentence Law, the minimum
penalty, which is one degree lower from the maximum
imposable penalty, shall be within the range of prision
mayor maximum to reclusion temporal medium, or
ten (10) years and one (1) day to seventeen (17) years
and four (4) months.34 The penalty imposed by the
Sandiganbayan on petitioners needs therefore to be
modified insofar as the maximum penalty is concerned
and is hereby reduced to seventeen (17) years and four
(4) months of reclusion temporal medium, for each
count.
WHEREFORE, the petition for review on certiorari is
DENIED for lack of merit. The Decision dated October
29, 2008 in Criminal Case Nos. 24569 to 24574, 24575,
24576 to 24584, 24585 to 24592, 24593, 24594, 24595
to 24620 finding petitioners guilty beyond reasonable
doubt of the crime of Malversation of Public Funds
under Article 217, paragraph 4 of the Revised Penal
Code, as amended, and the Resolution dated February
20, 2009 of the Sandiganbayan (First Division),
denying petitioners’ motion for reconsideration are
AFFIRMED with MODIFICATIONS in that
petitioners are instead accordingly sentenced to suffer
an indeterminate prison term of ten (10) years and one
(1) day of prision mayor maximum, as minimum, to
seventeen (17) years and four (4) months of reclusion
temporal medium, as maximum, in each of the above-
numbered criminal cases.
In addition to the payment of the fine ordered by the
Sandiganbayan, and by way of restitution, the
petitioners are likewise ordered to pay, jointly and
severally, the Republic of the Philippines through the
ARMM-Regional Treasurer, the total amount of
P21,045,570.64 malversed funds as finally determined
by the COA.
In the service of their respective sentences, the
petitioners shall be entitled to the benefit of the three-
fold rule as provided in Article 70 of the Revised Penal
Code, as amended.
With costs against the petitioners.
SO ORDERED.
MARTIN S. VILLARAMA, JR.
Associate Justice
WE CONCUR:
RENATO C. CORONA
Chief Justice
Chairperson
MARIANO C. DEL
LUCAS P. BERSAMIN
CASTILLO
Associate Justice
Associate Justice
MARIA LOURDES P. A. SERENO*
Associate Justice
CERTIFICATION
Pursuant to Section 13, Article VIII of the 1987
Constitution, I certify that the conclusions in the
above Decision had been reached in consultation
before the case was assigned to the writer of the
opinion of the Court’s Division.
RENATO C. CORONA
Chief Justice
MALVERSATION OF PUBLIC FUNDS

37. Major Joel Lantos vs. People, GR No. 184908, July

3, 2013

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 184908 July 3, 2013
MAJOR JOEL G. CANTOS, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
VILLARAMA, JR., J.:
Petitioner Major Joel G. Cantos appeals the
Decision1 of the Sandiganbayan in Criminal Case No.
SB-07-A/R-0008, which affirmed with modification
the judgment2 of the Regional Trial Court (RTC) of
Manila, Branch 47, convicting him of the crime of
Malversation of Public Funds under Article 217 of the
Revised Penal Code, as amended.
In an Information3 dated February 19, 2003, Major
Cantos was charged as follows:
That on or about December 21, 2002 or sometime prior
or subsequent thereto, in the City of Manila,
Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, a public
officer, being then the Commanding Officer of the
22"d Finance Service Center, based in the Presidential
Security Group, Malacañang Park, Manila and as such
is accountable for public funds received and/or
entrusted to him by reason of his office, acting in
relation to his office and taking advantage of the same,
did then and there, willfully, unlawfully and
feloniously take, misappropriate and convert to his
personal use and benefit the amount of THREE
MILLION TWO HUNDRED SEVENTY THOUSAND
PESOS (₱3,270,000.00), Philippine Currency, from
such public funds received by him by reason of his
Office to the damage and prejudice of the Government
in the aforestated amount.
CONTRARY TO LAW.
Upon motion by the prosecution, the trial court issued
an Order4 granting the amendment of the date of the
commission of the offense from December 21, 2002 to
December 21, 2000, the error being merely clerical.
When arraigned, Major Cantos entered a plea of not
guilty.5
At the trial, the prosecution presented as witness
Major Eligio T. Balao, Jr.6 He testified that on
December 21, 2000, he reported for duty as Disbursing
Officer at the 22nd Finance Service Unit (FSU),
Presidential Security Group (PSG), Malacañang Park,
Manila. At that time, he did not notice any unusual
incident in the office. He picked up some Bureau of
Internal Revenue (BIR) forms which he filed with the
BIR Office at the Port Area, Manila. He returned to
the office at around 10:00 a.m. At around 12:00 noon,
his commanding officer, Major Cantos, called him to
his office and informed him that the money he (Major
Cantos) was handling, the Special Duty Allowance for
the month of December, and other Maintenance
Operating Expenses in the amount of more or less ₱3
Million was missing from his custody. Shocked, he
asked Major Cantos where he kept the money, to
which the latter replied that he placed it in the steel
cabinet inside his room. He then inquired why Major
Cantos did not use the safety vault, but Major Cantos
did not reply.7
Major Balao further testified that Major Cantos asked
him to get a screwdriver so he went out of the office
and got one from his vehicle. He gave the screwdriver
to Major Cantos, who used it to unscrew the safety
vault. Then, he left the office and handed the
screwdriver to Sgt. Tumabcao.
After a few minutes, Major Cantos instructed him to
go to the house of Major Conrado Mendoza in Taguig
to get the safety vault’s combination number.
However, Major Mendoza was not around. When he
returned to the office at around 4:00 p.m., the National
Bureau of Investigation (NBI) personnel took his
fingerprints. He learned that all the personnel of the
22nd FSU were subjected to fingerprinting.
Thereafter, Col. Espinelli tried to force him to admit
that he took the money, but he maintained that he was
not the one who took it.8
In his defense, Major Cantos testified that on July
2000, he was assigned as the Commanding Officer of
the 22nd FSU of the PSG, Malacañang Park, Manila.
His duty was to supervise the disbursement of funds
for the PSG personnel and to perform other finance
duties as requested by the PSG Commander, Gen.
Rodolfo Diaz. On December 19, 2000, he received a
check from Director Aguas in the amount of
₱1,975,000 representing the Special Allowance of PSG
personnel. Accompanied by two personnel, he went to
the Land Bank branch just across Pasig River and
encashed the check. He placed the money in a duffel
bag and kept it inside the steel cabinet in his office
together with the ₱1,295,000 that was earlier also
entrusted to him by Gen. Diaz. Major Cantos added
that as far as he knows, he is the only one with the
keys to his office. Although there was a safety vault in
his office, he opted to place the money inside the steel
cabinet because he was allegedly previously informed
by his predecessor, Major Conrado Mendoza, that the
safety vault was defective. He was also aware that all
personnel of the 22nd FSU had unrestricted access to
his office during office hours.9
Major Cantos also narrated that on December 20, 2000,
he arrived at the office at around 9:00 a.m. and
checked the steel filing cabinet. He saw that the
money was still there. He left the office at around 4:00
p.m. to celebrate with his wife because it was their
wedding anniversary. On the following day,
December 21, 2000, he reported for work around 8:30
a.m. and proceeded with his task of signing vouchers
and documents. Between 9:00 a.m. to 10:00 a.m., he
inspected the steel cabinet and discovered that the
duffel bag which contained the money was missing.
He immediately called then Capt. Balao to his office
and asked if the latter saw someone enter the room.
Capt. Balao replied that he noticed a person going
inside the room, but advised him not to worry because
he is bonded as Disbursing Officer.10
In a state of panic, Major Cantos asked for Capt. Balao’s
help in finding the money. Capt. Balao asked him how
the money was lost and why was it not in the vault, to
which he replied that he could not put it there because
the vault was defective. Capt. Balao then suggested
that they should make it appear that the money was
lost in the safety vault. In pursuit of this plan, Capt.
Balao went out of the office and returned with a pair
of pliers and a screwdriver. Upon his return, Capt.
Balao went directly to the vault to unscrew it. At this
point, Major Cantos told him not to continue anymore
as he will just inform Gen. Diaz about the missing
funds. Major Cantos was able to contact Gen. Diaz
through his mobile phone and was advised to just wait
for Col. Espinelli. When Col. Espinelli arrived at the
office, Col. Espinelli conducted an investigation of the
incident.11
Lt. Col. Al I. Perreras, Executive Officer of the Judge
Advocate General Office (JAGO), likewise conducted
an investigation of the incident. His testimony was
however dispensed with as the counsels stipulated that
he prepared the Investigation Report, and that if
presented, the same would be admitted by defense
counsel.12 It likewise appears from the evidence that
Police Inspector Jesus S. Bacani of the Philippine
National Police (PNP) administered a polygraph
examination on Major Cantos and the result showed
that he was telling the truth.13
On April 27, 2007, the RTC rendered a decision
convicting Major Cantos of the crime charged, to wit:
WHEREFORE, in view of the foregoing premises, the
Court finds the accused Major Joel G. Cantos GUILTY
beyond reasonable doubt of the crime of Malversation
of Public Funds, under paragraph 4 of Article 217 of
the Revised Penal Code, and, there being no
mitigating or aggravating circumstance present,
hereby sentences him to an indeterminate penalty of
imprisonment for a period of ten (10) years and one (1)
day of Prision Mayor, as minimum, to Eighteen (18)
Years, eight (8) months and one (1) day of Reclusion
Temporal, as maximum; to reimburse the AFP Finance
Service Center, Presidential Security Group, Armed
Forces of the Philippines the amount of Three Million
Two Hundred Seventy Thousand Pesos
(₱3,270,000.00); to pay a fine of Three Million Two
Hundred Seventy Thousand Pesos (₱3,270,000.00); to
suffer perpetual special disqualification from holding
any public office; and to pay the costs.
SO ORDERED.14
In rendering a judgment of conviction, the RTC
explained that although there was no direct proof that
Major Cantos appropriated the money for his own
benefit, Article 217 of the Revised Penal Code, as
amended, provides that the failure of a public officer
to have duly forthcoming any public funds or property
with which he is chargeable, upon demand by any
duly authorized officer, shall be prima facie evidence
that he has put such missing funds or property to
personal uses. The RTC concluded that Major Cantos
failed to rebut this presumption.
Aggrieved, Major Cantos appealed to the
Sandiganbayan questioning his conviction by the trial
court.
On July 31, 2008, the Sandiganbayan promulgated the
assailed Decision, the dispositive portion of which
reads as follows:
IN VIEW OF THE FOREGOING, the Decision
promulgated on May 3, 2007 in Criminal Case No. 03-
212248 of the Regional Trial Court, National Capital
Judicial Region, Branch 47, Manila finding the
accused-appellant Major Joel G. Cantos GUILTY
beyond reasonable doubt of the crime of Malversation
of Public Funds under Article 217 of the Revised Penal
Code is hereby AFFIRMED, with the modification
that instead of being convicted of malversation
through negligence, the Court hereby convicts the
accused of malversation through misappropriation.
The penalty imposed by the lower court is also
likewise AFFIRMED.
SO ORDERED.15
The Sandiganbayan sustained the ruling of the RTC. It
held that in the crime of malversation, all that is
necessary for conviction is proof that the accountable
officer had received public funds and that he did not
have them in his possession when demand therefor
was made. There is even no need of direct evidence of
personal misappropriation as long as there is a shortage
in his account and petitioner cannot satisfactorily
explain the same. In this case, the Sandiganbayan
found petitioner liable for malversation through
misappropriation because he failed to dispute the
presumption against him. The Sandiganbayan noted
that petitioner’s claim that the money was taken by
robbery or theft has not been supported by sufficient
evidence, and is at most, self-serving.
Contending that the Sandiganbayan Decision erred in
affirming his convicting, Major Cantos filed a motion
for reconsideration. In its Resolution16 dated October
6, 2008, however, the Sandiganbayan denied the
motion.
Hence, the present petition for review on certiorari.
Petitioner assails the Decision of the Sandiganbayan
based on the following grounds:
I.
THE HONORABLE SANDIGANBAYAN ERRED IN
AFFIRMING PETITIONER'S CONVICTION FOR
MALVERSATION DESPITE ABSENCE OF
EVIDENCE SHOWING THAT THE FUNDS WERE
CONVERTED TO THE PERSONAL USE OF
PETITIONER.
II.
THE HONORABLE SANDIGANBAYAN ERRED IN
AFFIRMING PETITIONER'S CONVICTION ON THE
BASIS OF THE MERE PRESUMPTION CREATED BY
ARTICLE 217, PARAGRAPH 4, OF THE REVISED
PENAL CODE IN VIEW OF THE ATTENDANT
CIRCUMSTANCES IN THE PRESENT CASE.17
Essentially, the basic issue for our resolution is: Did the
Sandiganbayan err in finding petitioner guilty beyond
reasonable doubt of the crime of malversation of
public funds?
Petitioner argues that mere absence of funds is not
sufficient proof of misappropriation which would
warrant his conviction. He stresses that the
prosecution has the burden of establishing his guilt
beyond reasonable doubt. In this case, petitioner
contends that the prosecution failed to prove that he
appropriated, took, or misappropriated, or that he
consented or, through abandonment or negligence,
permitted another person to take the public funds.
On the other hand, the People, represented by the
Office of the Special Prosecutor (OSP), argues that
petitioner, as an accountable officer, may be convicted
of malversation of public funds even if there is no
direct evidence of misappropriation. The OSP asserts
that the only evidence required is that there is a
shortage in the officer’s account which he has not been
able to explain satisfactorily.
The petition must fail.
The Sandiganbayan did not commit a reversible error
in its decision convicting petitioner of malversation of
public funds, which is defined and penalized under
Article 217 of the Revised Penal Code, as amended, as
follows:
Art. 217. Malversation of public funds or property. –
Presumption of malversation. – Any public officer
who, by reason of the duties of his office, is
accountable for public funds or property, shall
appropriate the same, or shall take or misappropriate
or shall consent, or through abandonment or
negligence, shall permit any other person to take such
public funds or property, wholly or partially, or shall
otherwise be guilty of the misappropriation or
malversation of such funds or property shall suffer:
xxxx
4. The penalty of reclusion temporal in its medium and
maximum periods, if the amount involved is more
than twelve thousand pesos but is less than twenty-
two thousand pesos. If the amount exceeds the latter,
the penalty shall be reclusion temporal in its
maximum period to reclusion perpetua.
In all cases, persons guilty of malversation shall also
suffer the penalty of perpetual special disqualification
and a fine equal to the amount of the funds malversed
or equal to the total value of the property embezzled.
The failure of a public officer to have duly
forthcoming any public funds or property with which
he is chargeable, upon demand by any duly authorized
officer, shall be prima facie evidence that he has put
such missing funds or property to personal use.
(Emphasis and underscoring supplied.)
Thus, the elements of malversation of public funds
under Article 217 of the Revised Penal Code are:
1. that the offender is a public officer;
2. that he had the custody or control of funds or
property by reason of the duties of his office;
3. that those funds or property were public funds
or property for which he was accountable; and
4. that he appropriated, took, misappropriated or
consented or, through abandonment or
negligence, permitted another person to take
them.18
We note that all the above-mentioned elements are
here present. Petitioner was a public officer occupying
the position of Commanding Officer of the 22nd FSU
of the AFP Finance Center, PSG. By reason of his
position, he was tasked to supervise the disbursement
of the Special Duty Allowances and other
Maintenance Operating Funds of the PSG personnel,
which are indubitably public funds for which he was
accountable. Petitioner in fact admitted in his
testimony that he had complete control and custody of
these funds. As to the element of misappropriation,
indeed petitioner failed to rebut the legal presumption
that he had misappropriated the fees to his personal
use.
In convicting petitioner, the Sandiganbayan cites the
presumption in Article 217 of the Revised Penal Code,
as amended, which states that the failure of a public
officer to have duly forthcoming any public funds or
property with which he is chargeable, upon demand
by any duly authorized officer, is prima facie evidence
that he has put such missing fund or property to
personal uses. The presumption is, of course,
rebuttable. Accordingly, if petitioner is able to present
adequate evidence that can nullify any likelihood that
he put the funds or property to personal use, then that
presumption would be at an end and the prima facie
case is effectively negated.
In this case, however, petitioner failed to overcome
this prima facie evidence of guilt.1âwphi1 He failed to
explain the missing funds in his account and to
restitute the amount upon demand. His claim that the
money was taken by robbery or theft is self-serving
and has not been supported by evidence. In fact,
petitioner even tried to unscrew the safety vault to
make it appear that the money was forcibly taken.
Moreover, petitioner’s explanation that there is a
possibility that the money was taken by another is
belied by the fact that there was no sign that the steel
cabinet was forcibly opened. We also take note of the
fact that it was only petitioner who had the keys to the
steel cabinet.19Thus, the explanation set forth by
petitioner is unsatisfactory and does not overcome the
presumption that he has put the missing funds to
personal use.
Malversation is committed either intentionally or by
negligence. The dolo or the culpa present in the
offense is only a modality in the perpetration of the
felony. Even if the mode charged differs from the
mode proved, the same offense of malversation is
involved and conviction thereof is proper.20 All that is
necessary for conviction is sufficient proof that the
accountable officer had received public funds, that he
did not have them in his possession when demand
therefor was made, and that he could not satisfactorily
explain his failure to do so. Direct evidence of personal
misappropriation by the accused is hardly necessary as
long as the accused cannot explain satisfactorily the
shortage in his accounts.21 To our mind, the evidence
in this case is thoroughly inconsistent with petitioner's
claim of innocence. Thus, we sustain the
Sandiganbayan's finding that petitioner's guilt has
been proven beyond reasonable doubt.
WHEREFORE, the petition is DENIED. The Decision
dated July 31, 2008 of the Sandiganbayan in Criminal
Case No. SB-07-A/R-0008 convicting Major Joel G.
Cantos of the crime of Malversation of Public Funds is
AFFIRMED and UPHELD.
With costs against the petitioner.
SO ORDERED.
MARTIN S. VILLARAMA, JR.
Associate Justice
WE CONCUR:
MARIA LOURDES P. A. SERENO
Chief Justice
Chairperson
TERESITA J.
LEONARDO-DE LUCAS P. BERSAMIN
CASTRO Associate Justice
Associate Justice
BIENVENIDO L. REYES
Associate Justice
CERTIFICATION
Pursuant to Section 13, Article VIII of the 1987
Constitution, I certify that the conclusions in the
above Decision had been reached in consultation
before the case was assigned to the writer of the
opinion of the Court's Division.
MARIA LOURDES P. A. SERENO
Chief Justice
TECHNICAL MALVERSATION

38. Arnold James M. Ysidro vs. People, GR No. 192330,

Nov. 14, 2012

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 192330 November 14, 2012
ARNOLD JAMES M. YSIDORO, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
ABAD, J.:
This case is about a municipal mayor charged with
illegal diversion of food intended for those suffering
from malnutrition to the beneficiaries of
reconsideration projects affecting the homes of victims
of calamities.
The Facts and the Case
The Office of the Ombudsman for the Visayas accused
Arnold James M. Ysidoro before the Sandiganbayan in
Criminal Case 28228 of violation of illegal use of public
propertry (technical malversation) under Article 220
of the Revised Penal Code.1
The facts show that the Municipal Social Welfare and
Development Office (MSWDO) of Leyte, Leyte,
operated a Core Shelter Assistance Program (CSAP)
that provided construction materials to indigent
calamity victims with which to rebuild their homes.
The beneficiaries provided the labor needed for
construction.
On June 15, 2001 when construction for calamity
victims in Sitio Luy-a, Barangay Tinugtogan, was 70%
done, the beneficiaries stopped reporting for work for
the reason that they had to find food for their families.
This worried Lolita Garcia (Garcia), the CSAP Officer-
in-Charge, for such construction stoppage could result
in the loss of construction materials particularly the
cement. Thus, she sought the help of Cristina Polinio
(Polinio), an officer of the MSWDO in charge of the
municipality’s Supplemental Feeding Program (SFP)
that rationed food to malnourished children. Polinio
told Garcia that the SFP still had sacks of rice and
boxes of sardines in its storeroom. And since she had
already distributed food to the mother volunteers,
what remained could be given to the CSAP
beneficiaries.
Garcia and Polinio went to petitioner Arnold James M.
Ysidoro, the Leyte Municipal Mayor, to seek his
approval. After explaining the situation to him,
Ysidoro approved the release and signed the
withdrawal slip for four sacks of rice and two boxes of
sardines worth P3,396.00 to CSAP.2 Mayor Ysidoro
instructed Garcia and Polinio, however, to consult the
accounting department regarding the matter. On
being consulted, Eldelissa Elises, the supervising clerk
of the Municipal Accountant’s Office, signed the
withdrawal slip based on her view that it was an
emergency situation justifying the release of the
goods. Subsequently, CSAP delivered those goods to
its beneficiaries. Afterwards, Garcia reported the
matter to the MSWDO and to the municipal auditor as
per auditing rules.
On August 27, 2001 Alfredo Doller, former member of
the Sangguniang Bayan of Leyte, filed the present
complaint against Ysidoro. Nierna Doller, Alfredo's
wife and former MSWDO head, testified that the
subject SFP goods were intended for its target
beneficiaries, Leyte’s malnourished children. She also
pointed out that the Supplemental Feeding
Implementation Guidelines for Local Government
Units governed the distribution of SFP goods.3 Thus,
Ysidoro committed technical malversation when he
approved the distribution of SFP goods to the CSAP
beneficiaries.
In his defense, Ysidoro claims that the diversion of the
subject goods to a project also meant for the poor of
the municipality was valid since they came from the
savings of the SFP and the Calamity Fund. Ysidoro also
claims good faith, believing that the municipality’s
poor CSAP beneficiaries were also in urgent need of
food. Furthermore, Ysidoro pointed out that the COA
Municipal Auditor conducted a comprehensive audit
of their municipality in 2001 and found nothing
irregular in its transactions.
On February 8, 2010 the Sandiganbayan found
Ysidoro guilty beyond reasonable doubt of technical
malversation. But, since his action caused no damage
or embarrassment to public service, it only fined him
P1,698.00 or 50% of the sum misapplied. The
Sandiganbayan held that Ysidoro applied public
property to a pubic purpose other than that for which
it has been appropriated by law or ordinance. On May
12, 2010 the Sandiganbayan denied Ysidoro’s motion
for reconsideration. On June 8, 2010 Ysidoro appealed
the Sandiganbayan Decision to this Court.
The Questions Presented
In essence, Ysidoro questions the Sandiganbayan’s
finding that he committed technical malversation. He
particularly raises the following questions:
 1. Whether or not he approved the diversion of the
subject goods to a public purpose different from
their originally intended purpose;
2. Whether or not the goods he approved for
diversion were in the nature of savings that could
be used to augment the other authorized
expenditures of the municipality;
3. Whether or not his failure to present the
municipal auditor can be taken against him; and
4. Whether or not good faith is a valid defense for
technical malversation.
The Court’s Rulings
One. The crime of technical malversation as penalized
under Article 220 of the Revised Penal Code4 has three
elements: a) that the offender is an accountable public
officer; b) that he applies public funds or property
under his administration to some public use; and c)
that the public use for which such funds or property
were applied is different from the purpose for which
they were originally appropriated by law or
ordinance.5 Ysidoro claims that he could not be held
liable for the offense under its third element because
the four sacks of rice and two boxes of sardines he gave
the CSAP beneficiaries were not appropriated by law
or ordinance for a specific purpose.
But the evidence shows that on November 8, 2000 the
Sangguniang Bayan of Leyte enacted Resolution 00-
133 appropriating the annual general fund for
2001.6 This appropriation was based on the executive
budget7 which allocated P100,000.00 for the SFP and
P113,957.64 for the Comprehensive and Integrated
Delivery of Social Services8 which covers the CSAP
housing projects.9 The creation of the two items shows
the Sanggunian’s intention to appropriate separate
funds for SFP and the CSAP in the annual budget.
Since the municipality bought the subject goods using
SFP funds, then those goods should be used for SFP’s
needs, observing the rules prescribed for identifying
the qualified beneficiaries of its feeding programs. The
target clientele of the SFP according to its
manual10 are: 1) the moderately and severely
underweight pre-school children aged 36 months to
72 months; and 2) the families of six members whose
total monthly income is P3,675.00 and below.11 This
rule provides assurance that the SFP would cater only
to the malnourished among its people who are in
urgent need of the government’s limited resources.
Ysidoro disregarded the guidelines when he approved
the distribution of the goods to those providing free
labor for the rebuilding of their own homes. This is
technical malversation. If Ysidoro could not legally
distribute the construction materials appropriated for
the CSAP housing beneficiaries to the SFP
malnourished clients neither could he distribute the
food intended for the latter to CSAP beneficiaries.
Two. Ysidoro claims that the subject goods already
constituted savings of the SFP and that, therefore, the
same could already be diverted to the CSAP
beneficiaries. He relies on Abdulla v. People12 which
states that funds classified as savings are not
considered appropriated by law or ordinance and can
be used for other public purposes. The Court cannot
accept Ysidoro’s argument.
The subject goods could not be regarded as savings.
The SFP is a continuing program that ran throughout
the year. Consequently, no one could say in mid-June
2001 that SFP had already finished its project, leaving
funds or goods that it no longer needed. The fact that
Polinio had already distributed the food items needed
by the SFP beneficiaries for the second quarter of 2001
does not mean that the remaining food items in its
storeroom constituted unneeded savings. Since the
requirements of hungry mouths are hard to predict to
the last sack of rice or can of sardines, the view that
the subject goods were no longer needed for the
remainder of the year was quite premature.
In any case, the Local Government Code provides that
an ordinance has to be enacted to validly apply funds,
already appropriated for a determined public purpose,
to some other purpose. Thus:
SEC. 336. Use of Appropriated Funds and Savings. –
Funds shall be available exclusively for the specific
purpose for which they have been appropriated. No
ordinance shall be passed authorizing any transfer of
appropriations from one item to another. However,
the local chief executive or the presiding officer of the
sanggunian concerned may, by ordinance, be
authorized to augment any item in the approved
annual budget for their respective offices from savings
in other items within the same expense class of their
respective appropriations.
The power of the purse is vested in the local legislative
body. By requiring an ordinance, the law gives the
Sanggunian the power to determine whether savings
have accrued and to authorize the augmentation of
other items on the budget with those savings.
Three. Ysidoro claims that, since the municipal
auditor found nothing irregular in the diversion of the
subject goods, such finding should be respected. The
SB ruled, however, that since Ysidoro failed to present
the municipal auditor at the trial, the presumption is
that his testimony would have been adverse if
produced. Ysidoro argues that this goes against the
rule on the presumption of innocence and the
presumption of regularity in the performance of
official functions.
Ysidoro may be right in that there is no basis for
assuming that had the municipal auditor testified, his
testimony would have been adverse to the mayor. The
municipal auditor’s view regarding the transaction is
not conclusive to the case and will not necessarily
negate the mayor’s liability if it happened to be
favorable to him. The Court will not, therefore, be
drawn into speculations regarding what the municipal
auditor would have said had he appeared and testified.
Four. Ysidoro insists that he acted in good faith since,
first, the idea of using the SFP goods for the CSAP
beneficiaries came, not from him, but from Garcia and
Polinio; and, second, he consulted the accounting
department if the goods could be distributed to those
beneficiaries. Having no criminal intent, he argues
that he cannot be convicted of the crime.1âwphi1
But criminal intent is not an element of technical
malversation. The law punishes the act of diverting
public property earmarked by law or ordinance for a
particular public purpose to another public purpose.
The offense is mala prohibita, meaning that the
prohibited act is not inherently immoral but becomes
a criminal offense because positive law forbids its
commission based on considerations of public policy,
order, and convenience.13 It is the commission of an
act as defined by the law, and not the character or
effect thereof, that determines whether or not the
provision has been violated. Hence, malice or criminal
intent is completely irrelevant.14
Dura lex sed lex. Ysidoro’s act, no matter how noble or
miniscule the amount diverted, constitutes the crime
of technical malversation. The law and this Court,
however, recognize that his offense is not grave,
warranting a mere fine.
WHEREFORE, this Court AFFIRMS in its entirely the
assailed Decision of the Sandiganbayan in Criminal
Case 28228 dated February 8, 2010.
SO ORDERED.
ROBERTO A. ABAD
Associate Justice
WE CONCUR:
PRESBITERO J. VELASCO, JR.
Associate Justice
Chairperson
DIOSDADO M. JOSE PORTUGAL
PERALTA PEREZ*
Associate Justice Associate Justice
JOSE CATRAL MENDOZA
Associate Justice
ATTESTATION
I attest that the conclusions in the above Decision had
been reached in consultation before the case was
assigned to the writer of the opinion of the Court’s
Division.
PRESBITERO J. VELASCO, JR.
Associate Justice
Chairperson, Third Division
CERTIFICATION
Pursuant to Section 13, Article VIII of the
Constitution and the Division Chairperson’s
Attestation, I certify that the conclusions in the above
Decision had been reached in consultation before the
case was assigned to the writer of the opinion of the
Court’s Division.
MARIA LOURDES P. A. SERENO
Chief Justice
MALICIOUS MISCHIEF

39. Robert Taguinod vs. People, GR No. 185833, Oct.

12, 2011

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 185833 October 12, 2011
ROBERT TAGUINOD, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
PERALTA, J.:
For this Court's consideration is the petition for
review1 dated February 5, 2009 of petitioner Robert
Taguinod seeking to reverse the Decision2 of the Court
of Appeals (CA) dated September 8, 2008 and its
Resolution3 dated December 19, 2008 affirming the
Decisions of the Regional Trial Court of Makati City
(RTC)4 and the Metropolitan Trial Court of Makati
City (MeTC)5 dated September 6, 2007 and November
8, 2006, respectively.
The following are the antecedent facts:
This case started with a single incident on May 26,
2002 at the parking area of the Rockwell Powerplant
Mall. Pedro Ang (private complainant) was driving his
Honda CRV (CRV) from the 3rd basement parking,
while Robert Taguinod (petitioner) was driving his
Suzuki Vitara (Vitara) from the 2nd basement parking.
When they were about to queue at the corner to pay
the parking fees, the respective vehicles were edging
each other. The CRV was ahead of the queue, but the
Vitara tried to overtake, which resulted the touching
of their side view mirrors. The side view mirror of the
Vitara was pushed backward and naturally, the side
view mirror of the CRV was pushed forward. This
prompted the private complainant's wife and
daughter, namely, Susan and Mary Ann, respectively,
to alight from the CRV and confront the petitioner.
Petitioner appeared to be hostile, hence, the private
complainant instructed his wife and daughter to go
back to the CRV. While they were returning to the
car, petitioner accelerated the Vitara and moved
backward as if to hit them. The CRV, having been
overtaken by the Vitara, took another lane. Private
complainant was able to pay the parking fee at the
booth ahead of petitioner. When the CRV was at the
upward ramp leading to the exit, the Vitara bumped
the CRV's rear portion and pushed the CRV until it hit
the stainless steel railing located at the exit portion of
the ramp.
As a result of the collision, the CRV sustained damage
at the back bumper spare tires and the front bumper,
the repair of which amounted to ₱57,464.66. The
insurance company shouldered the said amount, but
the private complainant paid ₱18,191.66 as his
participation. On the other hand, the Vitara sustained
damage on the right side of its bumper.
Thereafter, an Information6 was filed in the MeTC of
Makati City against petitioner for the crime of
Malicious Mischief as defined in and penalized under
Article 3277 of the Revised Penal Code (RPC). The
Information reads as follows:
That on or about the 26th day of May, 2002, in the City
of Makati, Philippines, a place within the jurisdiction
of this Honorable Court, the above-named accused,
with deliberate intent to cause damage, and motivated
by hate and revenge and other evil motives, did then
and there willfully, unlawfully and feloniously bump
the rear portion of a Honda CRV car bearing Plate No.
APS-222 driven by Pedro N. Ang, thus, causing
damage thereon in the amount of ₱200.00.
CONTRARY TO LAW.
Petitioner pleaded Not Guilty during the arraignment
on March 10, 2003. Consequently, the trial on the
merits ensued. The prosecution presented the
testimony of private complainant. The defense, on the
other hand, presented the testimonies of Mary Susan
Lim Taguinod, the wife of petitioner, Jojet N. San
Miguel, Jason H. Lazo and Engr. Jules Ronquillo.
Afterwards, the MeTC, in its Decision dated
November 8, 2006, found petitioner guilty of the crime
charged in the Information, the dispositive portion of
which, reads:
WHEREFORE, premises considered, judgment is
hereby rendered finding the accused ROBERT
TAGUINOD y AYSON GUILTY of Malicious Mischief
penalized under Article 329 of the Revised Penal
Code, and sentencing accused to FOUR (4) MONTHS
imprisonment.
Accused Robert Taguinod y Ayson is likewise ordered
to pay complainant Pedro Ang the amount of
₱18,191.66, representing complainant's participation
in the insurance liability on the Honda CRV, the
amount of ₱50,000.00 as moral damages, and the
amount of ₱25,000.00 as attorney's fees; and to pay the
costs.
SO ORDERED.8
The case was appealed to the RTC of Makati City,
which rendered its Decision dated September 6, 2007,
affirming the decision of the MeTC, disposing the
appealed case as follows:
WHEREFORE, premises considered, the Decision
dated 8 November 2006 is AFFIRMED in all respects.
SO ORDERED.9
Undaunted, petitioner filed a petition for review with
the CA, praying for the reversal of the decision of the
RTC. The CA partly granted the petition in its
Decision dated September 8, 2008, ruling that:
WHEREFORE, in view of the foregoing premises, the
petition for review filed in this case is hereby PARTLY
GRANTED. The assailed decision dated September 6,
2007 of Branch 143 of the Regional Trial Court in
Makati City in Criminal Case No. 07-657 is hereby
MODIFIED as follows:
1. The petitioner is penalized to suffer the penalty
of 30 days imprisonment;
 2. The award of moral damages is reduced to
₱20,000.00; and
3. The award of attorney's fee is reduced to
₱10,000.00.
SO ORDERED.10
Petitioner filed with this Court a petition for review
on certiorari dated February 5, 2009. On March 16,
2009, this Court denied11 the said petition. However,
after petitioner filed a motion for
reconsideration12 dated May 14, 2009, this Court
reinstated13 the present petition and required the
Office of the Solicitor General to file its Comment.14
The grounds relied upon are the following:
A. THE HONORABLE COURT OF APPEALS
COMMITTED GRAVE REVERSIBLE ERROR IN
UPHOLDING PETITIONER'S CONVICTION.
B. THE HONORABLE COURT OF APPEALS
COMMITTED GRAVE REVERSIBLE ERROR IN
AWARDING MORAL DAMAGES AND
 ATTORNEY'S FEES TO PRIVATE
COMPLAINANT.15
This Court finds the petition partly meritorious.
The first argument of the petitioner centers on the
issue of credibility of the witnesses and the weight of
the evidence presented. Petitioner insists that between
the witness presented by the prosecution and the
witnesses presented by the defense, the latter should
have been appreciated, because the lone testimony of
the witness for the prosecution was self-serving. He
also puts into query the admissibility and authenticity
of some of the pieces of evidence presented by the
prosecution.
Obviously, the first issue raised by petitioner is purely
factual in nature. It is well entrenched in this
jurisdiction that factual findings of the trial court on
the credibility of witnesses and their testimonies are
entitled to the highest respect and will not be
disturbed on appeal in the absence of any clear
showing that it overlooked, misunderstood or
misapplied some facts or circumstances of weight and
substance that would have affected the result of the
case.16This doctrine is premised on the undisputed fact
that, since the trial court had the best opportunity to
observe the demeanor of the witnesses while on the
stand, it was in a position to discern whether or not
they were telling the truth.17 Moreover, the testimony
of a witness must be considered and calibrated in its
entirety and not by truncated portions thereof or
isolated passages therein.18
It is apparent in this present case that both the RTC
and the CA accorded respect to the findings of the
MeTC; hence, this Court finds no reason to oppose the
other two courts in the absence of any clear and valid
circumstance that would merit a review of the MeTC's
assessment as to the credibility of the witnesses and
their testimonies. Petitioner harps on his contention
that the MeTC was wrong in not finding the testimony
of his own witness, Mary Susan Lim Taguinod, to be
credible enough. However, this Court finds the
inconsistencies of said petitioner's witness to be more
than minor or trivial; thus, it does not, in any way, cast
reasonable doubt. As correctly pointed out by the
MeTC:
Defense witness Mary Susan Lim Taguinod is wanting
in credibility. Her recollection of the past events is
hazy as shown by her testimony on cross-examination.
While she stated in her affidavit that the Honda CRV's
"left side view mirror hit our right side view mirror,
causing our side view mirror to fold" (par. 4, Exhibit
"3"), she testified on cross-examination that the right
side view mirror of the Vitara did not fold and there
was only a slight dent or scratch. She initially testified
that she does not recall having submitted her written
version of the incident but ultimately admitted having
executed an affidavit. Also, while the Affidavit stated
that Mary Susan Lim Taguinod personally appeared
before the Notary Public, on cross-examination, she
admitted that she did not, and what she only did was
to sign the Affidavit in Quezon City and give it to her
husband. Thus, her inaccurate recollection of the past
incident, as shown by her testimony on cross-
examination, is in direct contrast with her Affidavit
which appears to be precise in its narration of the
incident and its details. Such Affidavit, therefore,
deserves scant consideration as it was apparently
prepared and narrated by another.
Thus, the Court finds that the prosecution has proven
its case against the accused by proof beyond reasonable
doubt.19
What really governs this particular case is that the
prosecution was able to prove the guilt of petitioner
beyond reasonable doubt. The elements of the crime
of malicious mischief under Article 327 of the Revised
Penal Code are:
(1) That the offender deliberately caused damage
to the property of another;
(2) That such act does not constitute arson or other
crimes involving destruction;
(3) That the act of damaging another's property be
committed merely for the sake of damaging it.20
In finding that all the above elements are present, the
MeTC rightly ruled that:
The following were not disputed: that there was a
collision between the side view mirrors of the two (2)
vehicles; that immediately thereafter, the wife and the
daughter of the complainant alighted from the CRV
and confronted the accused; and, the complainant, in
view of the hostile attitude of the accused, summoned
his wife and daughter to enter the CRV and while they
were in the process of doing so, the accused moved and
accelerated his Vitara backward as if to hit them.
The incident involving the collision of the two side
view mirrors is proof enough to establish the existence
of the element of "hate, revenge and other evil motive."
Here, the accused entertained hate, revenge and other
evil motive because to his mind, he was wronged by the
complainant when the CRV overtook his Vitara while
proceeding toward the booth to pay their parking fee,
as a consequence of which, their side view mirrors
collided. On the same occasion, the hood of his Vitara
was also pounded, and he was badmouthed by the
complainant's wife and daughter when they alighted
from the CRV to confront him for the collision of the
side view mirrors. These circumstances motivated the
accused to push upward the ramp complainant's CRV
until it reached the steel railing of the exit ramp. The
pushing of the CRV by the Vitara is corroborated by
the Incident Report dated May 26, 2002 prepared by
SO Robert Cambre, Shift-In-Charge of the Power
Plant Mall, as well as the Police Report. x x x21
The CA also accurately observed that the elements of
the crime of malicious mischief are not wanting in this
case, thus:
Contrary to the contention of the petitioner, the
evidence for the prosecution had proven beyond
reasonable doubt the existence of the foregoing
elements. First, the hitting of the back portion of the
CRV by the petitioner was clearly deliberate as
indicated by the evidence on record. The version of the
private complainant that the petitioner chased him
and that the Vitara pushed the CRV until it reached
the stairway railing was more believable than the
petitioner's version that it was private complainant's
CRV which moved backward and deliberately hit the
Vitara considering the steepness or angle of the
elevation of the P2 exit ramp. It would be too risky and
dangerous for the private complainant and his family
to move the CRV backward when it would be hard for
him to see his direction as well as to control his speed
in view of the gravitational pull. Second, the act of
damaging the rear bumper of the CRV does not
constitute arson or other crimes involving
destruction. Lastly, when the Vitara bumped the CRV,
the petitioner was just giving vent to his anger and hate
as a result of a heated encounter between him and the
private complainant.
In sum, this Court finds that the evidence on record
shows that the prosecution had proven the guilt of the
petitioner beyond reasonable doubt of the crime of
malicious mischief. This adjudication is but an
affirmation of the finding of guilt of the petitioner by
both the lower courts, the MeTC and the RTC.22
Petitioner likewise raises the issue that the CA was
wrong in awarding moral damages and attorney's fees
to the private complainant claiming that during the
trial, the latter's entitlement to the said monetary
reliefs was not substantiated. This Court finds
petitioner's claim, with regard to the award of moral
damages, unmeritorious.1avvphi1
In Manuel v. People,23 this Court tackled in substance
the concept of the award of moral damages, thus:
Moral damages include physical suffering, mental
anguish, fright, serious anxiety, besmirched
reputation, wounded feelings, moral shock, social
humiliation, and similar injury. Though incapable of
pecuniary computation, moral damages may be
recovered if they are the proximate result of the
defendant's wrongful act or omission. An award for
moral damages requires the confluence of the
following conditions: first, there must be an injury,
whether physical, mental or psychological, clearly
sustained by the claimant; second, there must be
culpable act or omission factually established; third, the
wrongful act or omission of the defendant is the
proximate cause of the injury sustained by the claimant;
and fourth, the award of damages is predicated on any
of the cases stated in Article 2219 or Article 2220 of the
Civil Code.24
It is true that the private complainant is entitled to the
award of moral damages under Article 222025 of the
New Civil Code because the injury contemplated by
the law which merits the said award was clearly
established. Private complainant testified that he felt
bad26 and lost sleep.27 The said testimony is substantial
to prove the moral injury suffered by the private
complainant for it is only him who can personally
approximate the emotional suffering he experienced.
For the court to arrive upon a judicious approximation
of emotional or moral injury, competent and
substantial proof of the suffering experienced must be
laid before it.28 The same also applies with private
complainant's claim that his wife felt dizzy after the
incident and had to be taken to the hospital.29
However, anent the award of attorney's fees, the same
was not established. In German Marine Agencies, Inc.
v. NLRC,30 this Court held that there must always be a
factual basis for the award of attorney’s fees. This
present case does not contain any valid and factual
reason for such award.
WHEREFORE, the petition for review dated February
5, 2009 of petitioner Robert Taguinod is DENIED. The
Decision of the Court of Appeals dated September 8,
2008 and its Resolution dated December 19, 2008 are
hereby AFFIRMED with the MODIFICATION that
the attorney’s fees are OMITTED.
SO ORDERED.
DIOSDADO M. PERALTA
Associate Justice
WE CONCUR:
PRESBITERO J. VELASCO, JR.
Associate Justice
Chairperson
JOSE CATRAL
ROBERTO A. ABAD
MENDOZA
Associate Justice
Associate Justice
ESTELA M. PERLAS-BERNABE
Associate Justice
ATTESTATION
I attest that the conclusions in the above Decision had
been reached in consultation before the case was
assigned to the writer of the opinion of the Court’s
Division.
PRESBITERO J. VELASCO, JR.
Associate Justice
Third Division, Chairperson
CERTIFICATION
Pursuant to Section 13, Article VIII of the
Constitution and the Division Chairperson’s
Attestation, I certify that the conclusions in the above
Decision had been reached in consultation before the
case was assigned to the writer of the opinion of the
Court’s Division.
RENATO C. CORONA
Chief Justice
OPEN DISOBEDIENCE

40. Law Firm of Chavez Miranda vs. Atty. Perya, GR

No. 183014, Aug. 7, 2013

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 183014 August 7, 2013
THE LAW FIRM OF CHAVEZ MIRANDA AND
ASEOCHE, REPRESENTED BY ITS FOUNDING
PARTNER, FRANCISCO I. CHAVEZ, PETITIONER,
vs.
ATTY. JOSEJINA C. FRIA, RESPONDENT.
DECISION
PERLAS-BERNABE, J.:
This is a direct recourse to the Court from the Regional
Trial Court of Muntinlupa City, Branch 276 (RTC),
through a petition for review on certiorari,1 raising a
pure question of law. In particular, petitioner The Law
Firm of Chavez Miranda and Aseoche (The Law Firm)
assails the Resolution2 dated January 8, 2008 and
Order3 dated May 16, 2008 of the RTC in S.C.A. Case
No. 07-096, upholding the dismissal of Criminal Case
No. 46400 for lack of probable cause.
The Facts
On July 31, 2006, an Information4 was filed against
respondent Atty. Josejina C. Fria (Atty. Fria), Branch
Clerk of Court of the Regional Trial Court of
Muntinlupa City, Branch 203 (Branch 203), charging
her for the crime of Open Disobedience under Article
2315 of the Revised Penal Code (RPC). The accusatory
portion of the said information reads:
The undersigned 2nd Assistant City Prosecutor
accuses ATTY. JOSEJINA C. FRIA of the crime of Viol.
of Article 231 of the Revised Penal Code, committed
as follows:
That on or about the 2nd day of February, 2006, or on
dates subsequent thereto, in the City of Muntinlupa,
Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, a public
officer she being the Branch Clerk of Court of the
Regional Trial Court Branch 203, Muntinlupa City,
did then and there willfully, unlawfully and
feloniously refused openly, without any legal
justification to obey the order of the said court which
is of superior authority, for the issuance of a writ of
execution which is her ministerial duty to do so in
Civil Case No. 03-110 entitled Charles Bernard Reyes,
doing business under the name and style CBH Reyes
Architects vs. Spouses Cesar and Mely Esquig and
Rosemarie Papas, which has become final and
executory since February 2, 2006, despite requests
therefor, if only to execute/enforce said decision dated
July 29, 2005 rendered within the scope of its
jurisdiction and issued with all the legal formalities, to
the damage and prejudice of the plaintiff thereof.
Contrary to law.
Muntinlupa City, July 31, 2006.6
Based on the records, the undisputed facts are as
follows:
The Law Firm was engaged as counsel by the plaintiff
in Civil Case No. 03-110 instituted before Branch
203.7 On July 29, 2005, judgment was rendered in
favor of the plaintiff (July 29, 2005 judgment),
prompting the defendant in the same case to appeal.
However, Branch 203 disallowed the appeal and
consequently ordered that a writ of execution be
issued to enforce the foregoing judgment.8 Due to the
denial of the defendant’s motion for reconsideration,
the July 29, 2005 judgment became final and
executory. 9
In its Complaint-Affidavit10 dated February 12, 2006,
The Law Firm alleged that as early as April 4, 2006, it
had been following up on the issuance of a writ of
execution to implement the July 29, 2005 judgment.
However, Atty. Fria vehemently refused to perform
her ministerial duty of issuing said writ.
In her Counter-Affidavit11 dated June 13, 2006, Atty.
Fria posited that the draft writ of execution (draft writ)
was not addressed to her but to Branch Sheriff Jaime
Felicen (Felicen), who was then on leave. Neither did
she know who the presiding judge would appoint as
special sheriff on Felicen’s behalf.12 Nevertheless, she
maintained that she need not sign the draft writ since
on April 18, 2006, the presiding judge issued an Order
stating that he himself shall sign and issue the same.13
On July 31, 2006, the prosecutor issued a
Memorandum14 recommending, inter alia, that Atty.
Fria be indicted for the crime of Open Disobedience.
The corresponding Information was thereafter filed
before the Metropolitan Trial Court of Muntinlupa
City, Branch 80 (MTC), docketed as Criminal Case No.
46400.
The Proceedings Before the MTC
On September 4, 2006, Atty. Fria filed a Motion for
Determination of Probable Cause15 (motion) which
The Law Firm opposed16 on the ground that the Rules
on Criminal Procedure do not empower trial courts to
review the prosecutor’s finding of probable cause and
that such rules only give the trial court judge the duty
to determine whether or not a warrant of arrest should
be issued against the accused.
Pending resolution of her motion, Atty. Fria filed a
Manifestation with Motion17 dated November 17,
2006, stating that the Court had rendered a Decision
in the case of Reyes v. Balde II (Reyes)18 – an offshoot
of Civil Case No. 03-110 – wherein it was held that
Branch 203 had no jurisdiction over the foregoing civil
case.19 In response, The Law Firm filed its
Comment/Opposition,20 contending that Atty. Fria
already committed the crime of Open Disobedience
119 days before the Reyes ruling was rendered and
hence, she remains criminally liable for the afore-
stated charge.
In an Omnibus Order21 dated January 25, 2007, the
MTC ordered the dismissal of Criminal Case No. 46400
for lack of probable cause. It found that aside from the
fact that Atty. Fria is a judicial officer, The Law Firm
failed to prove the existence of the other elements of
the crime of Open Disobedience.22 In particular, the
second element of the crime, i.e., that there is a
judgment, decision, or order of a superior authority
made within the scope of its jurisdiction and issued
with all legal formalities, unlikely existed since the
Court already declared as null and void the entire
proceedings in Civil Case No. 03-110 due to lack of
jurisdiction. In this regard, the MTC opined that such
nullification worked retroactively to warrant the
dismissal of the case and/or acquittal of the accused at
any stage of the proceedings.23
Dissatisfied, The Law Firm moved for
reconsideration24 which was, however, denied in a
Resolution25 dated July 13, 2007. Accordingly, it
elevated the matter on certiorari.26
The RTC Ruling
In a Resolution27 dated January 8, 2008, the RTC
affirmed the MTC’s ruling, finding no grave abuse of
discretion on the latter’s part since its dismissal of
Criminal Case No. 46400 for lack of probable cause
was "in full accord with the law, facts, and
jurisprudence."28
Aggrieved, The Law Firm filed a Motion for
Reconsideration29 which was equally denied by the
RTC in an Order30dated May 16, 2008. Hence, the
instant petition.
The Issue Before the Court
The essential issue in this case is whether or not the
RTC erred in sustaining the MTC’s dismissal of the
case for Open Disobedience against Atty. Fria, i.e.,
Criminal Case No. 46400, for lack of probable cause.
The Court’s Ruling
The petition is bereft of merit.
Under Section 5(a) of the Revised Rules of Criminal
Procedure, a trial court judge may immediately
dismiss a criminal case if the evidence on record
clearly fails to establish probable cause, viz:
Sec. 5. When warrant of arrest may issue. – (a) By the
Regional Trial Court. – Within ten (10) days from the
filing of the complaint or information, the judge shall
personally evaluate the resolution of the prosecutor
and its supporting evidence. He may immediately
dismiss the case if the evidence on record clearly fails
to establish probable cause. If he finds probable cause,
he shall issue a warrant of arrest, or a commitment
order if the accused has already been arrested pursuant
to a warrant issued by the judge who conducted
preliminary investigation or when the complaint or
information was filed pursuant to section 6 of this
Rule. In case of doubt on the existence of probable
cause, the judge may order the prosecutor to present
additional evidence within five (5) days from notice
and the issue must be resolved by the court within
thirty (30) days from the filing of the complaint of
information. (Emphasis and underscoring supplied)
It must, however, be observed that the judge’s power
to immediately dismiss a criminal case would only be
warranted when the lack of probable cause is clear. In
De Los Santos-Dio v. CA,31 the Court illumined that a
clear-cut case of lack of probable cause exists when the
records readily show uncontroverted, and thus,
established facts which unmistakably negate the
existence of the elements of the crime charged, viz:
While a judge’s determination of probable cause is
generally confined to the limited purpose of issuing
arrest warrants, Section 5(a), Rule 112 of the Revised
Rules of Criminal Procedure explicitly states that a
judge may immediately dismiss a case if the evidence
on record clearly fails to establish probable cause x x
x.
In this regard, so as not to transgress the public
prosecutor’s authority, it must be stressed that the
judge’s dismissal of a case must be done only in clear-
cut cases when the evidence on record plainly fails to
establish probable cause – that is when the records
readily show uncontroverted, and thus, established
facts which unmistakably negate the existence of the
elements of the crime charged. On the contrary, if the
evidence on record shows that, more likely than not,
the crime charged has been committed and that
respondent is probably guilty of the same, the judge
should not dismiss the case and thereon, order the
parties to proceed to trial. In doubtful cases, however,
the appropriate course of action would be to order the
presentation of additional evidence.1âwphi1
In other words, once the information is filed with the
court and the judge proceeds with his primordial task
of evaluating the evidence on record, he may either:
(a) issue a warrant of arrest, if he finds probable cause;
(b) immediately dismiss the case, if the evidence on
record clearly fails to establish probable cause; and (c)
order the prosecutor to submit additional evidence, in
case he doubts the existence of probable
cause.32 (Emphasis and underscoring supplied;
citations omitted)
Applying these principles to the case at bar would lead
to the conclusion that the MTC did not gravely abuse
its discretion in dismissing Criminal Case No. 46400
for lack of probable cause. The dismissal ought to be
sustained since the records clearly disclose the
unmistakable absence of the integral elements of the
crime of Open Disobedience. While the first element,
i.e., that the offender is a judicial or executive officer,
concurs in view of Atty. Fria’s position as Branch Clerk
of Court, the second and third elements of the crime
evidently remain wanting.
To elucidate, the second element of the crime of Open
Disobedience is that there is a judgment, decision, or
order of a superior authority made within the scope of
its jurisdiction and issued with all legal formalities. In
this case, it is undisputed that all the proceedings in
Civil Case No. 03-110 have been regarded as null and
void due to Branch 203’s lack of jurisdiction over the
said case. This fact has been finally settled in Reyes
where the Court decreed as follows:
WHEREFORE, in view of the foregoing, the instant
petition is DENIED. x x x The Presiding Judge of the
Regional Trial Court of Muntinlupa City, Branch 203
is PERMANENTLY ENJOINED from proceeding with
Civil Case No. 03-110 and all the proceedings therein
are DECLARED NULL AND VOID. x x x The
Presiding Judge of the Regional trial Court of
Muntinlupa City, Branch 203 is further DIRECTED to
dismiss Civil Case No. 03-110 for lack of
jurisdiction.33 (Emphasis and underscoring supplied)
Hence, since it is explicitly required that the subject
issuance be made within the scope of a superior
authority’s jurisdiction, it cannot therefore be doubted
that the second element of the crime of Open
Disobedience does not exist. Lest it be misunderstood,
a court – or any of its officers for that matter – which
has no jurisdiction over a particular case has no
authority to act at all therein. In this light, it cannot be
argued that Atty. Fria had already committed the
crime based on the premise that the Court’s
pronouncement as to Branch 203’s lack of jurisdiction
came only after the fact. Verily, Branch 203’s lack of
jurisdiction was not merely a product of the Court’s
pronouncement in Reyes. The said fact is traced to the
very inception of the proceedings and as such, cannot
be accorded temporal legal existence in order to indict
Atty. Fria for the crime she stands to be prosecuted.
Proceeding from this discussion, the third element of
the crime, i.e., that the offender, without any legal
justification, openly refuses to execute the said
judgment, decision, or order, which he is duty bound
to obey, cannot equally exist. Indubitably, without
any jurisdiction, there would be no legal order for
Atty. Fria to implement or, conversely, disobey.
Besides, as the MTC correctly observed, there lies
ample legal justifications that prevented Atty. Fria
from immediately issuing a writ of execution.34
In fine, based on the above-stated reasons, the Court
holds that no grave abuse of discretion can be
attributed to the MTC as correctly found by the RTC.
It is well-settled that an act of a court or tribunal can
only be considered as with grave abuse of discretion
when such act is done in a "capricious or whimsical
exercise of judgment as is equivalent to lack of
jurisdiction." The abuse of discretion must be so patent
and gross as to amount to an "evasion of a positive duty
or to a virtual refusal to perform a duty enjoined by
law, or to act at all in contemplation of law, as where
the power is exercised in an arbitrary and despotic
manner by reason of passion and
hostility."35Consequently, the dismissal of Criminal
Case No. 46400 for lack of probable cause is hereby
sustained.
WHEREFORE, the petition is DENIED. The
Resolution dated January 8, 2008 and Order dated May
16, 2008 of the Regional Trial Court of Muntinlupa
City, Branch 276 in S.C.A. Case No. 07-096 are hereby
AFFIRMED.
SO ORDERED.
ESTELA M. PERLAS-BERNABE
Associate Justice
WE CONCUR:
ANTONIO T. CARPIO
Associate Justice
Chairperson
MARIANO C. DEL
ARTURO D. BRION
CASTILLO
Associate Justice
Associate Justice
JOSE PORTUGAL PEREZ
Associate Justice
ATTESTATION
I attend that the conclusions in the above Decision had
been reached in consultation before the case was
assigned to the writer of the opinion of the Court’s
Division.
ANTONIO T. CARPIO
Associate Justice
Chairperson, Second Division
CERTIFICATION
Pursuant to Section 13, Article VIII of the
Constitution, and the Division Chairperson's
Attestation, I certify that the conclusions in the above
Decision had been reached in consultation before the
case was assigned to the writer of the opinion of the
Court's Division.
MARIA LOURDES P. A. SERENO
Chief Justice
ACTS OF LASCIVIOUSNESS

41. People vs. Bernabe Parejay Cruz, GR No. 202122,

Jan. 15, 2014

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 202122 January 15, 2014
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs.
BERNABE PAREJA y CRUZ, Accused-Appellant.
DECISION
LEOANRDO-DE CASTRO, J.:
The accused-appellant Bernabe Pareja y Cruz (Pareja)
is appealing the January 19, 2012 Decision1 of the
Court of Appeals in CA-G.R. CR.-H.C. No. 03794,
which affirmed in toto the conviction for Rape and
Acts of Lasciviousness meted out by Branch 113,
Regional Trial Court (RTC) of Pasay City in Criminal
Case Nos. 04-1556-CFM and 04-1557-CFM.2
On May 5, 2004, Pareja was charged with two counts
of Rape and one Attempted Rape. The Informations
for the three charges read as follows:
I. For the two counts of Rape:
Criminal Case No. 04-15 5 6-CFM
That on or about and sometime in the month of
February, 2004, in Pasay City, Metro Manila,
Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, Bernabe
Pareja y Cruz, being the common law spouse of the
minor victim’s mother, through force, threats and
intimidation, did then and there willfully, unlawfully
and feloniously commit an act of sexual assault upon
the person of [AAA3], a minor 13 years of age, by then
and there mashing her breast and inserting his finger
inside her vagina against her will.4
Criminal Case No. 04-1557-CFM
That on or about and sometime in the month of
December, 2003, in Pasay City, Metro Manila,
Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, Bernabe
Pareja y Cruz, being the stepfather of [AAA], a minor
13 years of age, through force, threats and
intimidation, did then and there willfully, unlawfully
and feloniously have carnal knowledge of said minor
against her will.5
II. For the charge of Attempted Rape:
Criminal Case No. 04-1558-CFM
That on or about the 27th day of March, 2004, in Pasay
City, Metro Manila, Philippines and within the
jurisdiction of this Honorable Court, the above-named
accused, BERNABE PAREJA Y CRUZ, being the
common law spouse of minor victim’s mother by
means of force, threats and intimidation, did then and
there willfully, unlawfully and feloniously commence
the commission of the crime of Rape against the
person of minor, [AAA], a13 years old minor by then
and there crawling towards her direction where she
was sleeping, putting off her skirt, but did not perform
all the acts of execution which would have produce[d]
the crime of rape for the reason other than his own
spontaneous desistance, that is the timely arrival of
minor victim’s mother who confronted the accused,
and which acts of child abuse debased, degraded and
demeaned the intrinsic worth and dignity of said
minor complainant as a human being.6
On June 17, 2004, Pareja, during his arraignment,
pleaded not guilty to the charges filed against
him.7 After the completion of the pre-trial conference
on September 16, 2004,8 trial on the merits ensued.
The antecedents of this case, as narrated by the Court
of Appeals, are as follows:
AAA was thirteen (13) years of age when the alleged
acts of lasciviousness and sexual abuse took place on
three (3) different dates, particularly [in December
2003], February 2004, and March 27, 2004.
AAA’s parents separated when she was [only eight
years old9]. At the time of the commission of the
aforementioned crimes, AAA was living with her
mother and with herein accused-appellant Bernabe
Pareja who, by then, was cohabiting with her mother,
together with three (3) of their children, aged twelve
(12), eleven (11) and nine (9), in x x x, Pasay City.
The first incident took place [i]n December 2003 [the
December 2003 incident]. AAA’s mother was not in
the house and was with her relatives in Laguna. Taking
advantage of the situation, [Pareja], while AAA was
asleep, placed himself on top of [her]. Then, [Pareja],
who was already naked, begun to undress AAA.
[Pareja] then started to suck the breasts of [AAA]. Not
satisfied, [Pareja] likewise inserted his penis into
AAA’s anus. Because of the excruciating pain that she
felt, AAA immediately stood up and rushed outside of
their house.
Despite such traumatic experience, AAA never told
anyone about the [December 2003] incident for fear
that [Pareja] might kill her. [Pareja] threatened to kill
AAA in the event that she would expose the incident
to anyone.
AAA further narrated that the [December 2003]
incident had happened more than once. According to
AAA, in February 2004 [the February 2004 incident],
she had again been molested by [Pareja]. Under the
same circumstances as the [December 2003 incident],
with her mother not around while she and her half-
siblings were asleep, [Pareja] again laid on top of her
and started to suck her breasts. But this time, [Pareja]
caressed [her] and held her vagina and inserted his
finger [i]n it.
With regard to the last incident, on March 27, 2004
[the March 2004 incident], it was AAA’s mother who
saw [Pareja] in the act of lifting the skirt of her
daughter AAA while the latter was asleep. Outraged,
AAA’s mother immediately brought AAA to the
barangay officers to report the said incident. AAA
then narrated to the barangay officials that she had
been sexually abused by [Pareja] x x x many times x x
x.
Subsequently, AAA, together with her mother,
proceeded to the Child Protection Unit of the
Philippine General Hospital for a medical and genital
examination. On March 29, 2004, Dr. Tan issued
Provisional Medico-Legal Report Number 2004-03-
0091. Her medico-legal report stated the following
conclusion:
Hymen: Tanner Stage 3, hymenal remnant from 5-7
o’clock area, Type of hymen: Crescentic
xxxx
Genital findings show Clear Evidence of Blunt Force
or Penetrating Trauma.
After the results of the medico-legal report confirmed
that AAA was indeed raped, AAA’s mother then filed
a complaint for rape before the Pasay City Police
Station.
To exculpate himself from liability, [Pareja] offered
both denial and ill motive of AAA against him as his
defense. He denied raping [AAA] but admitted that he
knew her as she is the daughter of his live-in partner
and that they all stay in the same house.
Contrary to AAA’s allegations, [Pareja] averred that it
would have been impossible that the alleged incidents
happened. To justify the same, [Pareja] described the
layout of their house and argued that there was no way
that the alleged sexual abuses could have happened.
According to [Pareja], the house was made of wood,
only about four (4) meters wide by ten (10) meters,
and was so small that they all have to sit to be able to
fit inside the house. Further, the vicinity where their
house is located was thickly populated with houses
constructed side by side. Allegedly, AAA also had no
choice but to sleep beside her siblings.
All taken into account, [Pareja] asseverated that it was
hard to imagine how he could possibly still go about
with his plan without AAA’s siblings nor their
neighbors noticing the same.
Verily, [Pareja] was adamant and claimed innocence
as to the imputations hurled against him by AAA. He
contended that AAA filed these charges against him
only as an act of revenge because AAA was mad at
[him] for being the reason behind her parents’
separation.10
Ruling of the RTC
On January 16, 2009, the RTC acquitted Pareja from
the charge of attempted rape but convicted him of the
crimes of rape and acts of lasciviousness in the
December 2003 and February 2004 incidents,
respectively. The dispositive portion of the
Decision11 reads as follows:
WHEREFORE, the herein accused Bernabe Pareja y
Cruz is hereby acquitted from the charge of attempted
rape in Crim. Case No. 04-1558, for want of evidence.
In Crim. Case No. 04-1556, the said accused is
CONVICTED with Acts of Lasciviousness and he is
meted out the penalty of imprisonment, ranging from
2 years, 4 months and 1 day as minimum to 4 years and
2 months of prision [correccional] as maximum.
In Crim. Case No. 04-1557, the said accused is
CONVICTED as charged with rape, and he is meted
the penalty of reclusion perpetua.
The accused shall be credited in full for the period of
his preventive imprisonment.
The accused is ordered to indemnify the offended
party [AAA], the sum of ₱50,000.00, without
subsidiary imprisonment, in case of insolvency.12
The RTC, in convicting Pareja of the crime of Rape
and Acts of Lasciviousness, gave more weight to the
prosecution’s evidence as against Pareja’s baseless
denial and imputation of ill motive. However, due to
the failure of the prosecution to present AAA’s mother
to testify about what she had witnessed in March 2004,
the RTC had to acquit Pareja of the crime of
Attempted Rape in the March 2004 incident for lack
of evidence. The RTC could not convict Pareja on the
basis of AAA’s testimony for being hearsay evidence
as she had no personal knowledge of what happened
on March 27, 2004 because she was sleeping at that
time.
Ruling of the Court of Appeals
Wanting to reverse his two convictions, Pareja
appealed13 to the Court of Appeals, which on January
19, 2012, affirmed in toto the judgment of the RTC in
Criminal Case Nos. 04-1556 and 04-1557, to wit:
WHEREFORE, in view of the foregoing premises, the
instant appeal is hereby DENIED and, consequently,
DISMISSED. The appealed Decisions rendered by
Branch 113 of the Regional Trial Court of the National
Capital Judicial Region in Pasay City on January 16,
2009 in Criminal Cases Nos. 04-1556 to 04-1557 are
hereby AFFIRMED in toto.14
Issues
Aggrieved, Pareja elevated his case to this Court15 and
posited before us the following errors as he did before
the Court of Appeals:
I
THE TRIAL COURT SERIOUSLY ERRED IN
CONVICTING [PAREJA] OF THE CRIMES
CHARGED NOTWITHSTANDING THAT HIS
GUILT HAS NOT BEEN PROVEN BEYOND
REASONABLE DOUBT.
II
THE TRIAL COURT GRAVELY ERRED IN
CONVICTING [PAREJA] BASED SOLELY ON THE
PROSECUTION WITNESS’ TESTIMONY.16
In his Supplemental Brief17 Pareja added the following
argument:
The private complainant’s actuations after the incident
negate the possibility that she was raped.18
Pareja’s main bone of contention is the reliance of the
lower courts on the testimony of AAA in convicting
him for rape and acts of lasciviousness. Simply put,
Pareja is attacking the credibility of AAA for being
inconsistent. Moreover, he claimed, AAA acted as if
nothing happened after the alleged sexual abuse.
Ruling of this Court
This Court finds no reason to reverse Pareja’s
conviction.
Core Issue: Credibility of AAA
Pareja claims that AAA’s testimony cannot be the lone
basis of his conviction as it was riddled with
inconsistencies.19
We find such argument untenable.
When the issue of credibility of witnesses is presented
before this Court, we follow certain guidelines that
have overtime been established in jurisprudence. In
People v. Sanchez,20 we enumerated them as follows:
First, the Court gives the highest respect to the RTC’s
evaluation of the testimony of the witnesses,
considering its unique position in directly observing
the demeanor of a witness on the stand. From its
vantage point, the trial court is in the best position to
determine the truthfulness of witnesses.
Second, absent any substantial reason which would
justify the reversal of the RTC’s assessments and
conclusions, the reviewing court is generally bound by
the lower court’s findings, particularly when no
significant facts and circumstances, affecting the
outcome of the case, are shown to have been
overlooked or disregarded.
And third, the rule is even more stringently applied if
the CA concurred with the RTC. (Citations omitted.)
The recognized rule in this jurisdiction is that the
"assessment of the credibility of witnesses is a domain
best left to the trial court judge because of his unique
opportunity to observe their deportment and
demeanor on the witness stand; a vantage point denied
appellate courts-and when his findings have been
affirmed by the Court of Appeals, these are generally
binding and conclusive upon this Court."21 While
there are recognized exceptions to the rule, this Court
has found no substantial reason to overturn the
identical conclusions of the trial and appellate courts
on the matter of AAA’s credibility.
Besides, inaccuracies and inconsistencies in a rape
victim’s testimony are generally expected.22 As this
Court stated in People v. Saludo23:
Rape is a painful experience which is oftentimes not
remembered in detail. For such an offense is not
analogous to a person’s achievement or
accomplishment as to be worth recalling or reliving;
rather, it is something which causes deep
psychological wounds and casts a stigma upon the
victim, scarring her psyche for life and which her
conscious and subconscious mind would opt to forget.
Thus, a rape victim cannot be expected to
mechanically keep and then give an accurate account
of the traumatic and horrifying experience she had
undergone. (Citation omitted.)
Since human memory is fickle and prone to the
stresses of emotions, accuracy in a testimonial account
has never been used as a standard in testing the
credibility of a witness.24 The inconsistencies
mentioned by Pareja are trivial and non-consequential
matters that merely caused AAA confusion when she
was being questioned. The inconsistency regarding the
year of the December incident is not even a matter
pertaining to AAA’s ordeal.25 The date and time of the
commission of the crime of rape becomes important
only when it creates serious doubt as to the
commission of the rape itself or the sufficiency of the
evidence for purposes of conviction. In other words,
the "date of the commission of the rape becomes
relevant only when the accuracy and truthfulness of
the complainant’s narration practically hinge on the
date of the commission of the crime."26 Moreover, the
date of the commission of the rape is not an essential
element of the crime.27
In this connection, Pareja repeatedly invokes our
ruling in People v. Ladrillo,28 implying that our rulings
therein are applicable to his case. However, the factual
circumstances in Ladrillo are prominently missing in
Pareja’s case. In particular, the main factor for
Ladrillo’s acquittal in that case was because his
constitutional right to be informed of the nature and
cause of the accusation against him was violated when
the Information against him only stated that the crime
was committed "on or about the year 1992." We said:
The peculiar designation of time in the Information
clearly violates Sec. 11, Rule 110, of the Rules Court
which requires that the time of the commission of the
offense must be alleged as near to the actual date as the
information or complaint will permit. More
importantly, it runs afoul of the constitutionally
protected right of the accused to be informed of the
nature and cause of the accusation against him. The
Information is not sufficiently explicit and certain as
to time to inform accused-appellant of the date on
which the criminal act is alleged to have been
committed.
The phrase "on or about the year 1992" encompasses
not only the twelve (12) months of 1992 but includes
the years prior and subsequent to 1992, e.g., 1991 and
1993, for which accused-appellant has to virtually
account for his whereabouts. Hence, the failure of the
prosecution to allege with particularity the date of the
commission of the offense and, worse, its failure to
prove during the trial the date of the commission of
the offense as alleged in the Information, deprived
accused-appellant of his right to intelligently prepare
for his defense and convincingly refute the charges
against him. At most, accused-appellant could only
establish his place of residence in the year indicated in
the Information and not for the particular time he
supposedly committed the rape.
xxxx
Indeed, the failure of the prosecution to prove its
allegation in the Information that accused-appellant
raped complainant in 1992 manifestly shows that the
date of the commission of the offense as alleged was
based merely on speculation and conjecture, and a
conviction anchored mainly thereon cannot satisfy the
quantum of evidence required for a pronouncement of
guilt, that is, proof beyond reasonable doubt that the
crime was committed on the date and place indicated
in the Information.29 (Citation omitted.)
In this case, although the dates of the December 2003
and February 2004 incidents were not specified, the
period of time Pareja had to account for was fairly
short, unlike "on or about the year 1992." Moreover,
Ladrillo was able to prove that he had only moved in
the house where the rape supposedly happened, in
1993, therefore negating the allegation that he raped
the victim in that house in 1992.30
While it may be true that the inconsistencies in the
testimony of the victim in Ladrillo contributed to his
eventual acquittal, this Court said that they alone were
not enough to reverse Ladrillo’s conviction, viz:
Moreover, there are discernible defects in the
complaining witness’ testimony that militates heavily
against its being accorded the full credit it was given
by the trial court. Considered independently, the
defects might not suffice to overturn the trial court’s
judgment of conviction, but assessed and weighed in
its totality, and in relation to the testimonies of other
witnesses, as logic and fairness dictate, they exert a
powerful compulsion towards reversal of the assailed
judgment.31 (Emphasis supplied.)
It is worthy to note that Ladrillo also offered more
than just a mere denial of the crime charged against
him to exculpate him from liability. He also had an
alibi, which, together with the other evidence,
produced reasonable doubt that he committed the
crime as charged. In contrast, Pareja merely denied the
accusations against him and even imputed ill motive
on AAA.
As regards Pareja’s concern about AAA’s lone
testimony being the basis of his conviction, this Court
has held:
Furthermore, settled is the rule that the testimony of
a single witness may be sufficient to produce a
conviction, if the same appears to be trustworthy and
reliable. If credible and convincing, that alone would
be sufficient to convict the accused. No law or rule
requires the corroboration of the testimony of a single
witness in a rape case.32 (Citations omitted.)
Improbability of sexual abuse
in their small house and in the
presence of AAA’s sleeping siblings
Pareja argues that it was improbable for him to have
sexually abused AAA, considering that their house was
so small that they had to sleep beside each other, that
in fact, when the alleged incidents happened, AAA
was sleeping beside her younger siblings, who would
have noticed if anything unusual was happening.33
This Court is not convinced. Pareja’s living conditions
could have prevented him from acting out on his
beastly desires, but they did not. This Court has
observed that many of the rape cases appealed to us
were not always committed in seclusion. Lust is no
respecter of time or place,34 and rape defies constraints
of time and space. In People v. Sangil, Sr.,35 we
expounded on such occurrence in this wise:
In People v. Ignacio, we took judicial notice of the
interesting fact that among poor couples with big
families living in small quarters, copulation does not
seem to be a problem despite the presence of other
persons around them. Considering the cramped space
and meager room for privacy, couples perhaps have
gotten used to quick and less disturbing modes of
sexual congresses which elude the attention of family
members; otherwise, under the circumstances, it
would be almost impossible to copulate with them
around even when asleep. It is also not impossible nor
incredible for the family members to be in deep
slumber and not be awakened while the sexual assault
is being committed. One may also suppose that
growing children sleep more soundly than grown-ups
and are not easily awakened by adult exertions and
suspirations in the night. There is no merit in
appellant’s contention that there can be no rape in a
room where other people are present. There is no rule
that rape can be committed only in seclusion. We have
repeatedly declared that "lust is no respecter of time
and place," and rape can be committed in even the
unlikeliest of places. (Citations omitted.)
Demeanor of AAA
as a rape victim
Pareja asseverates that AAA’s demeanor and conduct
belie her claim that she was raped. He said that "the
ordinary Filipina [would have summoned] every
ounce of her strength and courage to thwart any
attempt to besmirch her honor and blemish her
purity." Pareja pointed out that they lived in a thickly
populated area such that any commotion inside their
house would have been easily heard by the neighbors,
thus, giving AAA the perfect opportunity to seek their
help.36 Moreover, Pareja said, AAA’s delay in
reporting the incidents to her mother or the
authorities negates the possibility that he indeed
committed the crimes. AAA’s belated confession, he
claimed, "cannot be dismissed as trivial as it puts into
serious doubt her credibility."37
A person accused of a serious crime such as rape will
tend to escape liability by shifting the blame on the
victim for failing to manifest resistance to sexual
abuse. However, this Court has recognized the fact
that no clear-cut behavior can be expected of a person
being raped or has been raped. It is a settled rule that
failure of the victim to shout or seek help do not negate
rape. Even lack of resistance will not imply that the
victim has consented to the sexual act, especially when
that person was intimidated into submission by the
accused. In cases where the rape is committed by a
relative such as a father, stepfather, uncle, or common
law spouse, moral influence or ascendancy takes the
place of violence.38 In this case, AAA’s lack of
resistance was brought about by her fear that Pareja
would make good on his threat to kill her if she ever
spoke of the incident.
AAA’s conduct, i.e., acting like nothing happened,
after being sexually abused by Pareja is also not
enough to discredit her. Victims of a crime as heinous
as rape, cannot be expected to act within reason or in
accordance with society’s expectations. It is
unreasonable to demand a standard rational reaction
to an irrational experience, especially from a young
victim. One cannot be expected to act as usual in an
unfamiliar situation as it is impossible to predict the
workings of a human mind placed under emotional
stress. Moreover, it is wrong to say that there is a
standard reaction or behavior among victims of the
crime of rape since each of them had to cope with
different circumstances.39
Likewise, AAA’s delay in reporting the incidents to
her mother or the proper authorities is insignificant
and does not affect the veracity of her charges. It
should be remembered that Pareja threatened to kill
her if she told anyone of the incidents. In People v.
Ogarte,40 we explained why a rape victim’s deferral in
reporting the crime does not equate to falsification of
the accusation, to wit:
The failure of complainant to disclose her defilement
without loss of time to persons close to her or to report
the matter to the authorities does not perforce warrant
the conclusion that she was not sexually molested and
that her charges against the accused are all baseless,
untrue and fabricated. Delay in prosecuting the
offense is not an indication of a fabricated charge.
Many victims of rape never complain or file criminal
charges against the rapists. They prefer to bear the
ignominy and pain, rather than reveal their shame to
the world or risk the offenders’ making good their
threats to kill or hurt their victims. (Citation omitted.)
Medical examination
not indispensable
Pareja avers that the Medico-Legal Report indicating
that there is evidence of blunt force or penetrating
trauma upon examination of AAA’s hymen, "cannot
be given any significance, as it failed to indicate how
and when the said signs of physical trauma were
inflicted." Furthermore, Pareja said, the findings that
AAA’s hymen sustained trauma cannot be utilized as
evidence against him as the alleged sexual abuse that
occurred in December, was not by penetration of the
vagina.41
This Court has time and again held that an accused can
be convicted of rape on the basis of the sole testimony
of the victim. In People v. Colorado,42 we said:
[A] medical certificate is not necessary to prove the
commission of rape, as even a medical examination of
the victim is not indispensable in a prosecution for
rape. Expert testimony is merely corroborative in
character and not essential to conviction. x x x.
Therefore, the absence of testimony or medical
certificate on the state of AAA’s anus at the time she
was examined is of no consequence. On the contrary,
the medical examination actually bolsters AAA’s claim
of being raped by Pareja on more than one occasion,
and not just by anal penetration. However, as the
prosecution failed to capitalize on such evidence and
prove the incidence of carnal knowledge, Pareja
cannot be convicted of rape under paragraph 1 of
Article 266-A of the Revised Penal Code.
In People v. Perez,43 this Court aptly held:
This Court has held time and again that testimonies of
rape victims who are young and immature deserve full
credence, considering that no young woman,
especially of tender age, would concoct a story of
defloration, allow an examination of her private parts,
and thereafter pervert herself by being subject to a
public trial, if she was not motivated solely by the
desire to obtain justice for the wrong committed
against her. Youth and immaturity are generally
badges of truth. It is highly improbable that a girl of
tender years, one not yet exposed to the ways of the
world, would impute to any man a crime so serious as
rape if what she claims is not true. (Citations omitted.)
Criminal Case No. 04-1557-CFM:
The December 2003 Incident
In Criminal Case No. 04-1557-CFM or the December
2003 incident, Pareja was charged and convicted of the
crime of rape by sexual assault. The enactment of
Republic Act No. 8353 or the Anti-Rape Law of 1997,
revolutionized the concept of rape with the
recognition of sexual violence on "sex-related" orifices
other than a woman’s organ is included in the crime
of rape; and the crime’s expansion to cover gender-free
rape. "The transformation mainly consisted of the
reclassification of rape as a crime against persons and
the introduction of rape by ‘sexual assault’ as
differentiated from the traditional ‘rape through
carnal knowledge’ or ‘rape through sexual
intercourse.’"44Republic Act No. 8353 amended Article
335, the provision on rape in the Revised Penal Code
and incorporated therein Article 266-A which reads:
Article 266-A. Rape, When and How Committed. –
Rape is committed –
1) By a man who shall have carnal knowledge of a
woman under any of the following circumstances:
a) Through force, threat or intimidation;
b) When the offended party is deprived of reason or is
otherwise unconscious,
c) By means of fraudulent machination or grave abuse
of authority;
d) When the offended party is under twelve (12) years
of age or is demented, even though none of the
circumstances mentioned above be present;
2) By any person who, under any of the circumstances
mentioned in paragraph 1 hereof, shall commit an act
of sexual assault by inserting his penis into another
person’s mouth or anal orifice, or any instrument or
object, into the genital or anal orifice of another
person.
Thus, under the new provision, rape can be committed
in two ways:
1. Article 266-A paragraph 1 refers to Rape
through sexual intercourse, also known as "organ
rape" or "penile rape."45 The central element in
rape through sexual intercourse is carnal
knowledge, which must be proven beyond
reasonable doubt.46
2. Article 266-A paragraph 2 refers to rape by
sexual assault, also called "instrument or object
rape," or "gender-free rape."47 It must be attended
 by any of the circumstances enumerated in
subparagraphs (a) to (d) of paragraph 1.48
In People v. Abulon,49 this Court differentiated the
two modes of committing rape as follows:
(1) In the first mode, the offender is always a man,
while in the second, the offender may be a man or
a woman;
(2) In the first mode, the offended party is always
a woman, while in the second, the offended party
may be a man or a woman;
(3) In the first mode, rape is committed through
penile penetration of the vagina, while the second
is committed by inserting the penis into another
person’s mouth or anal orifice, or any instrument
or object into the genital or anal orifice of another
person; and
(4) The penalty for rape under the first mode is
higher than that under the second.
Under Article 266-A, paragraph 2 of the Revised Penal
Code, as amended, rape by sexual assault is "by any
person who, under any of the circumstances
mentioned in paragraph 1 hereof, shall commit an act
of sexual assault by inserting his penis into another
person’s mouth or anal orifice, or any instrument or
object, into the genital or anal orifice of another
person."
AAA positively and consistently stated that Pareja, in
December 2003, inserted his penis into her anus.
While she may not have been certain about the details
of the February 2004 incident, she was positive that
Pareja had anal sex with her in December 2003, thus,
clearly establishing the occurrence of rape by sexual
assault. In other words, her testimony on this account
was, as the Court of Appeals found, clear, positive, and
probable.50
However, since the charge in the Information for the
December 2003 incident is rape through carnal
knowledge, Pareja cannot be found guilty of rape by
sexual assault even though it was proven during trial.
This is due to the material differences and substantial
distinctions between the two modes of rape; thus, the
first mode is not necessarily included in the second,
and vice-versa. Consequently, to convict Pareja of rape
by sexual assault when what he was charged with was
rape through carnal knowledge, would be to violate
his constitutional right to be informed of the nature
and cause of the accusation against him.51
Nevertheless, Pareja may be convicted of the lesser
crime of acts of lasciviousness under the variance
doctrine embodied in Section 4, in relation to Section
5, Rule 120 of the Rules of Criminal Procedure,52 to
wit:
SEC. 4. Judgment in case of variance between
allegation and proof. – When there is a variance
between the offense charged in the complaint or
information and that proved, and the offense as
charged is included in or necessarily includes the
offense proved, the accused shall be convicted of the
offense proved which is included in the offense
charged, or of the offense charged which is included
in the offense proved.
SEC. 5. When an offense includes or is included in
another. – An offense charged necessarily includes the
offense proved when some of the essential elements or
ingredients of the former, as alleged in the complaint
or information, constitute the latter. And an offense
charged is necessarily included in the offense proved,
when the essential ingredients of the former constitute
or form part of those constituting the latter.
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 prisión correccional.
The elements of the above crime are as follows:
(1) That the offender commits any act of
lasciviousness or lewdness;
(2) That it is done under any of the following
circumstances:
a. By using force or intimidation; or
 b. When the offended party is deprived of
reason or otherwise unconscious; or
c. When the offended party is under 12 years
of age; and
(3) That the offended party is another person of
either sex.53 (Citation omitted.)
Clearly, the above-mentioned elements are present in
the December 2003 incident, and were sufficiently
established during trial. Thus, even though the crime
charged against Pareja was for rape through carnal
knowledge, he can be convicted of the crime of acts of
lasciviousness without violating any of his
constitutional rights because said crime is included in
the crime of rape.54
Nonetheless, the Court takes this case as an
opportunity to remind the State, the People of the
Philippines, as represented by the public prosecutor,
to exert more diligence in crafting the Information,
which contains the charge against an accused. The
primary duty of a lawyer in public prosecution is to see
that justice is done55 – to the State, that its penal laws
are not broken and order maintained; to the victim,
that his or her rights are vindicated; and to the
offender, that he is justly punished for his crime. A
faulty and defective Information, such as that in
Criminal Case No. 04-1556-CFM, does not render full
justice to the State, the offended party, and even the
offender. Thus, the public prosecutor should always
see to it that the Information is accurate and
appropriate.
Criminal Case No. 04-1556-CFM:
The February 2004 Incident
It is manifest that the RTC carefully weighed all the
evidence presented by the prosecution against Pareja,
especially AAA’s testimony. In its scrutiny, the RTC
found AAA’s declaration on the rape in the December
2003 incident credible enough to result in a
conviction, albeit this Court had to modify it as
explained above. However, it did not find that the
same level of proof, i.e., beyond reasonable doubt, was
fully satisfied by the prosecution in its charge of
attempted rape and a second count of rape against
Pareja. In Criminal Case No. 04-1556-CFM, or the
February 2004 incident, the RTC considered AAA’s
confusion as to whether or not she was actually
penetrated by Pareja, and eventually resolved the
matter in Pareja’s favor.
This Court agrees with such findings. AAA, in her
Sinumpaang Salaysay,56 stated that aside from sucking
her breasts, Pareja also inserted his finger in her
vagina. However, she was not able to give a clear and
convincing account of such insertion during her
testimony. Despite being repeatedly asked by the
prosecutor as to what followed after her breasts were
sucked, AAA failed to testify, in open court, that
Pareja also inserted his finger in her vagina. Moreover,
later on, she added that Pareja inserted his penis in her
vagina during that incident. Thus, because of the
material omissions and inconsistencies, Pareja cannot
be convicted of rape in the February 2004 incident.
Nonetheless, Pareja’s acts of placing himself on top of
AAA and sucking her breasts, fall under the crime of
acts of lasciviousness, which, as we have discussed
above, is included in the crime of rape.
Verily, AAA was again positive and consistent in her
account of how Pareja sucked both her breasts in the
February 2004 incident. Thus, Pareja was correctly
convicted by the courts a quo of the crime of acts of
lasciviousness.
Defense of Denial
and Improper Motive
Pareja sought to escape liability by denying the
charges against him, coupled with the attribution of ill
motive against AAA. He claims that AAA filed these
cases against him because she was angry that he caused
her parents’ separation. Pareja added that these cases
were initiated by AAA’s father, as revenge against
him.57
Such contention is untenable. "AAA’s credibility
cannot be diminished or tainted by such imputation of
ill motives.1âwphi1 It is highly unthinkable for the
victim to falsely accuse her father solely by reason of
ill motives or grudge."58Furthermore, motives such as
resentment, hatred or revenge have never swayed this
Court from giving full credence to the testimony of a
minor rape victim.59 In People v. Manuel,60 we held:
Evidently, no woman, least of all a child, would
concoct a story of defloration, allow examination of
her private parts and subject herself to public trial or
ridicule if she has not, in truth, been a victim of rape
and impelled to seek justice for the wrong done to her
being. It is settled jurisprudence that testimonies of
child-victims are given full weight and credit, since
when a woman or a girl-child says that she has been
raped, she says in effect all that is necessary to show
that rape was indeed committed.
Liability for Acts of Lasciviousness
The penalty for acts of lasciviousness under Article
336 of the Revised Penal Code is prisión correccional
in its full range. Applying the Indeterminate Sentence
Law,61 the minimum of the indeterminate penalty
shall be taken from the full range of the penalty next
lower in degree,62 i.e., arresto mayor, which ranges
from 1 month and 1 day to 6 months.63 The maximum
of the indeterminate penalty shall come from the
proper penalty64 that could be imposed under the
Revised Penal Code for Acts of
Lasciviousness,65 which, in this case, absent any
aggravating or mitigating circumstance, is the medium
period of prisión correccional, ranging from 2 years, 4
months and 1 day to 4 years and 2 months.66
In line with prevailing jurisprudence, the Court
modifies the award of damages as follows: ₱20,000.00
as civil indemnity;67 ₱30,000.00 as moral damages; and
₱10,000.00 as exemplary damages,68 for each count of
acts of lasciviousness. All amounts shall bear legal
interest at the rate of 6% per annum from the date of
finality of this judgment.
WHEREFORE, premises considered, the Decision of
the Court of Appeals in CA-G.R. CR.-H.C. No. 03794
is hereby AFFIRMED with MODIFICATION. We find
accused-appellant Bernabe Pareja y Cruz GUILTY of
two counts of Acts of Lasciviousness, defined and
penalized under Article 336 of the Revised Penal
Code, as amended. He is sentenced to two (2)
indeterminate prison terms of 6 months of arresto
mayor, as minimum, to 4 years and 2 months of prisi6n
correccional, as maximum; and is ORDERED to pay
the victim, AAA, ₱20,000.00 as civil indemnity,
₱30,000.00 as moral damages, and ₱10,000.00 as
exemplary damages, for each count of acts of
lasciviousness, all with interest at the rate of 6% per
annum from the date of finality of this judgment.
SO ORDERED.
TERESITA J. LEONARDO-DE CASTRO
Associate Justice
WE CONCUR:
MARIA LOURDES P. A. SERENO
Chief Justice
Chairperson
MARTIN S.
LUCAS P. BERSAMIN
VILLARAMA, JR.
Associate Justice
Associate Justice
BIENVENIDO L. REYES
Associate Justice
CERTIFICATION
Pursuant to Section 13, Article VIII of the
Constitution, I certify that the conclusions in the
above Decision had been reached in consultation
before the case was assigned to the writer of the
opinion of the Court's Division.
MARIA LOURDES P. A. SERENO
Chief Justice
CYBER LIBEL

42. Jose Jesus Disini, Jr., et. al. vs. Sec. of Justice, GR No.
203335, Feb. 11, 2014

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 203335 February 11, 2014
JOSE JESUS M. DISINI, JR., ROWENA S. DISINI,
LIANNE IVY P. MEDINA, JANETTE TORAL and
ERNESTO SONIDO, JR., Petitioners,
vs.
THE SECRETARY OF JUSTICE, THE SECRETARY OF
THE DEPARTMENT OF THE INTERIOR AND
LOCAL GOVERNMENT, THE EXECUTIVE
DIRECTOR OF THE INFORMATION AND
COMMUNICATIONS TECHNOLOGY OFFICE, THE
CHIEF OF THE PHILIPPINE NATIONAL POLICE and
THE DIRECTOR OF THE NATIONAL BUREAU OF
INVESTIGATION, Respondents.
x-----------------------x
G.R. No. 203299
LOUIS "BAROK" C. BIRAOGO, Petitioner,
vs.
NATIONAL BUREAU OF INVESTIGATION and
PHILIPPINE NATIONAL POLICE, Respondents.
x-----------------------x
G.R. No. 203306
ALAB NG MAMAMAHAYAG (ALAM), HUKUMAN
NG MAMAMAYAN MOVEMENT, INC., JERRY S.
YAP, BERTENI "TOTO" CAUSING, HERNANI Q.
CUARE, PERCY LAPID, TRACY CABRERA,
RONALDO E. RENTA, CIRILO P. SABARRE, JR.,
DERVIN CASTRO, ET AL., Petitioners,
vs.
OFFICE OF THE PRESIDENT, represented by
President Benigno Simeon Aquino III, SENATE OF
THE PHILIPPINES, and HOUSE OF
REPRESENTATIVES, Respondents.
x-----------------------x
G.R. No. 203359
SENATOR TEOFISTO DL GUINGONA
III, Petitioner,
vs.
EXECUTIVE SECRETARY, THE SECRETARY OF
JUSTICE, THE SECRETARY OF THE DEPARTMENT
OF INTERIOR AND LOCAL GOVERNMENT, THE
CHIEF OF THE PHILIPPINE NATIONAL POLICE,
and DIRECTOR OF THE NATIONAL BUREAU OF
INVESTIGATION, Respondents.
x-----------------------x
G.R. No. 203378
ALEXANDER ADONIS, ELLEN TORDESILLAS, MA.
GISELA ORDENES-CASCOLAN, H. HARRY L.
ROQUE, JR., ROMEL R. BAGARES, and GILBERT T.
ANDRES, Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE DEPARTMENT
OF BUDGET AND MANAGEMENT, THE
DEPARTMENT OF JUSTICE, THE DEPARTMENT OF
THE INTERIOR AND LOCAL GOVERNMENT, THE
NATIONAL BUREAU OF INVESTIGATION, THE
PHILIPPINE NATIONAL POLICE, AND THE
INFORMATION AND COMMUNICATIONS
TECHNOLOGY OFFICE-DEPARTMENT OF
SCIENCE AND TECHNOLOGY, Respondents.
x-----------------------x
G.R. No. 203391
HON. RAYMOND V. PALATINO, HON. ANTONIO
TINIO, VENCER MARI CRISOSTOMO OF
ANAKBAYAN, MA. KATHERINE ELONA OF THE
PHILIPPINE COLLEGIAN, ISABELLE THERESE
BAGUISI OF THE NATIONAL UNION OF STUDENTS
OF THE PHILIPPINES, ET AL., Petitioners,
vs.
PAQUITO N. OCHOA, JR., in his capacity as Executive
Secretary and alter-ego of President Benigno Simeon
Aquino III, LEILA DE LIMA in her capacity as
Secretary of Justice, Respondents.
x-----------------------x
G.R. No. 203407
BAGONG ALYANSANG MAKABAYAN SECRETARY
GENERAL RENATO M. REYES, JR., National Artist
BIENVENIDO L. LUMBERA, Chairperson of
Concerned Artists of the Philippines, ELMER C.
LABOG, Chairperson of Kilusang Mayo Uno,
CRISTINA E. PALABAY, Secretary General of
Karapatan, FERDINAND R. GAITE, Chairperson of
COURAGE, JOEL B. MAGLUNSOD, Vice President of
Anakpawis Party-List, LANA R. LINABAN, Secretary
General Gabriela Women's Party, ADOLFO ARES P.
GUTIERREZ, and JULIUS GARCIA
MATIBAG, Petitioners,
vs.
BENIGNO SIMEON C. AQUINO III, President of the
Republic of the Philippines, PAQUITO N. OCHOA,
JR., Executive Secretary, SENATE OF THE
PHILIPPINES, represented by SENATE PRESIDENT
JUAN PONCE ENRILE, HOUSE OF
REPRESENTATIVES, represented by SPEAKER
FELICIANO BELMONTE, JR., LEILA DE LIMA,
Secretary of the Department of Justice, LOUIS
NAPOLEON C. CASAMBRE, Executive Director of the
Information and Communications Technology Office,
NONNATUS CAESAR R. ROJAS, Director of the
National Bureau of Investigation, D/GEN. NICANOR
A. BARTOLOME, Chief of the Philippine National
Police, MANUEL A. ROXAS II, Secretary of the
Department of the Interior and Local
Government, Respondents.
x-----------------------x
G.R. No. 203440
MELENCIO S. STA. MARIA, SEDFREY M.
CANDELARIA, AMPARITA STA. MARIA, RAY
PAOLO J. SANTIAGO, GILBERT V. SEMBRANO, and
RYAN JEREMIAH D. QUAN (all of the Ateneo Human
Rights Center),Petitioners,
vs.
HONORABLE PAQUITO OCHOA in his capacity as
Executive Secretary, HONORABLE LEILA DE LIMA in
her capacity as Secretary of Justice, HONORABLE
MANUEL ROXAS in his capacity as Secretary of the
Department of Interior and Local Government, The
CHIEF of the Philippine National Police, The
DIRECTOR of the National Bureau of Investigation (all
of the Executive Department of
Government), Respondents.
x-----------------------x
G.R. No. 203453
NATIONAL UNION OF JOURNALISTS OF THE
PHILIPPINES (NUJP), PHILIPPINE PRESS
INSTITUTE (PPI), CENTER FOR MEDIA FREEDOM
AND RESPONSIBILITY, ROWENA CARRANZA
PARAAN, MELINDA QUINTOS-DE JESUS, JOSEPH
ALWYN ALBURO, ARIEL SEBELLINO AND THE
PETITIONERS IN THE e-PETITION
http://www.nujp.org/no-to-ra10175/, Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY
OF JUSTICE, THE SECRETARY OF THE INTERIOR
AND LOCAL GOVERNMENT, THE SECRETARY OF
BUDGET AND MANAGEMENT, THE DIRECTOR
GENERAL OF THE PHILIPPINE NATIONAL
POLICE, THE DIRECTOR OF THE NATIONAL
BUREAU OF INVESTIGATION, THE CYBERCRIME
INVESTIGATION AND COORDINATING CENTER,
AND ALL AGENCIES AND INSTRUMENTALITIES
OF GOVERNMENT AND ALL PERSONS ACTING
UNDER THEIR INSTRUCTIONS, ORDERS,
DIRECTION IN RELATION TO THE
IMPLEMENTATION OF REPUBLIC ACT NO.
10175, Respondents.
x-----------------------x
G.R. No. 203454
PAUL CORNELIUS T. CASTILLO & RYAN D.
ANDRES, Petitioners,
vs.
THE HON. SECRETARY OF JUSTICE THE HON.
SECRETARY OF INTERIOR AND LOCAL
GOVERNMENT,Respondents.
x-----------------------x
G.R. No. 203469
ANTHONY IAN M. CRUZ; MARCELO R.
LANDICHO; BENJAMIN NOEL A. ESPINA; MARCK
RONALD C. RIMORIN; JULIUS D. ROCAS; OLIVER
RICHARD V. ROBILLO; AARON ERICK A. LOZADA;
GERARD ADRIAN P. MAGNAYE; JOSE REGINALD
A. RAMOS; MA. ROSARIO T. JUAN; BRENDALYN P.
RAMIREZ; MAUREEN A. HERMITANIO; KRISTINE
JOY S. REMENTILLA; MARICEL O. GRAY; JULIUS
IVAN F. CABIGON; BENRALPH S. YU; CEBU
BLOGGERS SOCIETY, INC. PRESIDENT RUBEN B.
LICERA, JR; and PINOY EXPAT/OFW BLOG
AWARDS, INC. COORDINATOR PEDRO E.
RAHON; Petitioners,
vs.
HIS EXCELLENCY BENIGNO S. AQUINO III, in his
capacity as President of the Republic of the Philippines;
SENATE OF THE PHILIPPINES, represented by HON.
JUAN PONCE ENRILE, in his capacity as Senate
President; HOUSE OF REPRESENTATIVES,
represented by FELICIANO R. BELMONTE, JR., in his
capacity as Speaker of the House of Representatives;
HON. PAQUITO N. OCHOA, JR., in his capacity as
Executive Secretary; HON. LEILA M. DE LIMA, in her
capacity as Secretary of Justice; HON. LOUIS
NAPOLEON C. CASAMBRE, in his capacity as
Executive Director, Information and Communications
Technology Office; HON. NONNATUS CAESAR R.
ROJAS, in his capacity as Director, National Bureau of
Investigation; and P/DGEN. NICANOR A.
BARTOLOME, in his capacity as Chief, Philippine
National Police, Respondents.
x-----------------------x
G.R. No. 203501
PHILIPPINE BAR ASSOCIATION, INC., Petitioner,
vs.
HIS EXCELLENCY BENIGNO S. AQUINO III, in his
official capacity as President of the Republic of the
Philippines; HON. PAQUITO N. OCHOA, JR., in his
official capacity as Executive Secretary; HON. LEILA
M. DE LIMA, in her official capacity as Secretary of
Justice; LOUIS NAPOLEON C. CASAMBRE, in his
official capacity as Executive Director, Information and
Communications Technology Office; NONNATUS
CAESAR R. ROJAS, in his official capacity as Director
of the National Bureau of Investigation; and
DIRECTOR GENERAL NICANOR A. BARTOLOME,
in his official capacity as Chief of the Philippine
National Police,Respondents.
x-----------------------x
G.R. No. 203509
BAYAN MUNA REPRESENTATIVE NERI J.
COLMENARES, Petitioner,
vs.
THE EXECUTIVE SECRETARY PAQUITO OCHOA,
JR., Respondent.
x-----------------------x
G.R. No. 203515
NATIONAL PRESS CLUB OF THE PHILIPPINES,
INC. represented by BENNY D. ANTIPORDA in his
capacity as President and in his personal
capacity, Petitioner,
vs.
OFFICE OF THE PRESIDENT, PRES. BENIGNO
SIMEON AQUINO III, DEPARTMENT OF JUSTICE,
DEPARTMENT OF INTERIOR AND LOCAL
GOVERNMENT, PHILIPPINE NATIONAL POLICE,
NATIONAL BUREAU OF INVESTIGATION,
DEPARTMENT OF BUDGET AND MANAGEMENT
AND ALL OTHER GOVERNMENT
INSTRUMENTALITIES WHO HAVE HANDS IN THE
PASSAGE AND/OR IMPLEMENTATION OF
REPUBLIC ACT 10175, Respondents.
x-----------------------x
G.R. No. 203518
PHILIPPINE INTERNET FREEDOM ALLIANCE,
composed of DAKILA-PHILIPPINE COLLECTIVE
FOR MODERN HEROISM, represented by Leni
Velasco, PARTIDO LAKAS NG MASA, represented by
Cesar S. Melencio, FRANCIS EUSTON R. ACERO,
MARLON ANTHONY ROMASANTA TONSON,
TEODORO A. CASIÑO, NOEMI LARDIZABAL-
DADO, IMELDA ORALES, JAMES MATTHEW B.
MIRAFLOR, JUAN G.M. RAGRAGIO, MARIA
FATIMA A. VILLENA, MEDARDO M. MANRIQUE,
JR., LAUREN DADO, MARCO VITTORIA TOBIAS
SUMAYAO, IRENE CHIA, ERASTUS NOEL T.
DELIZO, CRISTINA SARAH E. OSORIO, ROMEO
FACTOLERIN, NAOMI L. TUPAS, KENNETH KENG,
ANA ALEXANDRA C. CASTRO, Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY
OF JUSTICE, THE SECRETARY OF INTERIOR AND
LOCAL GOVERNMENT, THE SECRETARY OF
SCIENCE AND TECHNOLOGY, THE EXECUTIVE
DIRECTOR OF THE INFORMATION TECHNOLOGY
OFFICE, THE DIRECTOR OF THE NATIONAL
BUREAU OF INVESTIGATION, THE CHIEF,
PHILIPPINE NATIONAL POLICE, THE HEAD OF
THE DOJ OFFICE OF CYBERCRIME, and THE
OTHER MEMBERS OF THE CYBERCRIME
INVESTIGATION AND COORDINATING
CENTER, Respondents.
DECISION
ABAD, J.:
These consolidated petitions seek to declare several
provisions of Republic Act (R.A.) 10175, the
Cybercrime Prevention Act of 2012, unconstitutional
and void.
The Facts and the Case
The cybercrime law aims to regulate access to and use
of the cyberspace. Using his laptop or computer, a
person can connect to the internet, a system that links
him to other computers and enable him, among other
things, to:
1. Access virtual libraries and encyclopedias for all
kinds of information that he needs for research,
study, amusement, upliftment, or pure curiosity;
2. Post billboard-like notices or messages,
including pictures and videos, for the general
public or for special audiences like associates,
classmates, or friends and read postings from them;
3. Advertise and promote goods or services and
make purchases and payments;
 4. Inquire and do business with institutional
entities like government agencies, banks, stock
exchanges, trade houses, credit card companies,
public utilities, hospitals, and schools; and
5. Communicate in writing or by voice with any
person through his e-mail address or telephone.
This is cyberspace, a system that accommodates
millions and billions of simultaneous and ongoing
individual accesses to and uses of the internet. The
cyberspace is a boon to the need of the current
generation for greater information and facility of
communication. But all is not well with the system
since it could not filter out a number of persons of ill
will who would want to use cyberspace technology for
mischiefs and crimes. One of them can, for instance,
avail himself of the system to unjustly ruin the
reputation of another or bully the latter by posting
defamatory statements against him that people can
read.
And because linking with the internet opens up a user
to communications from others, the ill-motivated can
use the cyberspace for committing theft by hacking
into or surreptitiously accessing his bank account or
credit card or defrauding him through false
representations. The wicked can use the cyberspace,
too, for illicit trafficking in sex or for exposing to
pornography guileless children who have access to the
internet. For this reason, the government has a
legitimate right to regulate the use of cyberspace and
contain and punish wrongdoings.
Notably, there are also those who would want, like
vandals, to wreak or cause havoc to the computer
systems and networks of indispensable or highly
useful institutions as well as to the laptop or computer
programs and memories of innocent individuals. They
accomplish this by sending electronic viruses or
virtual dynamites that destroy those computer
systems, networks, programs, and memories. The
government certainly has the duty and the right to
prevent these tomfooleries from happening and
punish their perpetrators, hence the Cybercrime
Prevention Act.
But petitioners claim that the means adopted by the
cybercrime law for regulating undesirable cyberspace
activities violate certain of their constitutional rights.
The government of course asserts that the law merely
seeks to reasonably put order into cyberspace
activities, punish wrongdoings, and prevent hurtful
attacks on the system.
Pending hearing and adjudication of the issues
presented in these cases, on February 5, 2013 the Court
extended the original 120-day temporary restraining
order (TRO) that it earlier issued on October 9, 2012,
enjoining respondent government agencies from
implementing the cybercrime law until further orders.
The Issues Presented
Petitioners challenge the constitutionality of the
following provisions of the cybercrime law that regard
certain acts as crimes and impose penalties for their
commission as well as provisions that would enable
the government to track down and penalize violators.
These provisions are:
a. Section 4(a)(1) on Illegal Access;
b. Section 4(a)(3) on Data Interference;
c. Section 4(a)(6) on Cyber-squatting;
d. Section 4(b)(3) on Identity Theft;
e. Section 4(c)(1) on Cybersex;
f. Section 4(c)(2) on Child Pornography;
g. Section 4(c)(3) on Unsolicited Commercial
Communications;
h. Section 4(c)(4) on Libel;
i. Section 5 on Aiding or Abetting and Attempt in
the Commission of Cybercrimes;
j. Section 6 on the Penalty of One Degree Higher;
k. Section 7 on the Prosecution under both the
Revised Penal Code (RPC) and R.A. 10175;
l. Section 8 on Penalties;
m. Section 12 on Real-Time Collection of Traffic
Data;
n. Section 13 on Preservation of Computer Data;
 o. Section 14 on Disclosure of Computer Data;
p. Section 15 on Search, Seizure and Examination
of Computer Data;
q. Section 17 on Destruction of Computer Data;
r. Section 19 on Restricting or Blocking Access to
Computer Data;
s. Section 20 on Obstruction of Justice;
t. Section 24 on Cybercrime Investigation and
Coordinating Center (CICC); and
u. Section 26(a) on CICC’s Powers and Functions.
Some petitioners also raise the constitutionality of
related Articles 353, 354, 361, and 362 of the RPC on
the crime of libel.
The Rulings of the Court
Section 4(a)(1)
Section 4(a)(1) provides:
Section 4. Cybercrime Offenses. – The following acts
constitute the offense of cybercrime punishable under
this Act:
(a) Offenses against the confidentiality, integrity and
availability of computer data and systems:
(1) Illegal Access. – The access to the whole or any part
of a computer system without right.
Petitioners contend that Section 4(a)(1) fails to meet
the strict scrutiny standard required of laws that
interfere with the fundamental rights of the people
and should thus be struck down.
The Court has in a way found the strict scrutiny
standard, an American constitutional
construct,1 useful in determining the constitutionality
of laws that tend to target a class of things or persons.
According to this standard, a legislative classification
that impermissibly interferes with the exercise of
fundamental right or operates to the peculiar class
disadvantage of a suspect class is presumed
unconstitutional. The burden is on the government to
prove that the classification is necessary to achieve a
compelling state interest and that it is the least
restrictive means to protect such interest.2 Later, the
strict scrutiny standard was used to assess the validity
of laws dealing with the regulation of speech, gender,
or race as well as other fundamental rights, as
expansion from its earlier applications to equal
protection.3
In the cases before it, the Court finds nothing in
Section 4(a)(1) that calls for the application of the
strict scrutiny standard since no fundamental freedom,
like speech, is involved in punishing what is
essentially a condemnable act – accessing the
computer system of another without right. It is a
universally condemned conduct.4
Petitioners of course fear that this section will
jeopardize the work of ethical hackers, professionals
who employ tools and techniques used by criminal
hackers but would neither damage the target systems
nor steal information. Ethical hackers evaluate the
target system’s security and report back to the owners
the vulnerabilities they found in it and give
instructions for how these can be remedied. Ethical
hackers are the equivalent of independent auditors
who come into an organization to verify its
bookkeeping records.5
Besides, a client’s engagement of an ethical hacker
requires an agreement between them as to the extent
of the search, the methods to be used, and the systems
to be tested. This is referred to as the "get out of jail
free card."6Since the ethical hacker does his job with
prior permission from the client, such permission
would insulate him from the coverage of Section
4(a)(1).
Section 4(a)(3) of the Cybercrime Law
Section 4(a)(3) provides:
Section 4. Cybercrime Offenses. – The following acts
constitute the offense of cybercrime punishable under
this Act:
(a) Offenses against the confidentiality, integrity and
availability of computer data and systems:
xxxx
(3) Data Interference. – The intentional or reckless
alteration, damaging, deletion or deterioration of
computer data, electronic document, or electronic
data message, without right, including the
introduction or transmission of viruses.
Petitioners claim that Section 4(a)(3) suffers from
overbreadth in that, while it seeks to discourage data
interference, it intrudes into the area of protected
speech and expression, creating a chilling and
deterrent effect on these guaranteed freedoms.
Under the overbreadth doctrine, a proper
governmental purpose, constitutionally subject to
state regulation, may not be achieved by means that
unnecessarily sweep its subject broadly, thereby
invading the area of protected freedoms.7 But Section
4(a)(3) does not encroach on these freedoms at all. It
simply punishes what essentially is a form of
vandalism,8 the act of willfully destroying without
right the things that belong to others, in this case their
computer data, electronic document, or electronic
data message. Such act has no connection to
guaranteed freedoms. There is no freedom to destroy
other people’s computer systems and private
documents.
All penal laws, like the cybercrime law, have of course
an inherent chilling effect, an in terrorem effect9 or
the fear of possible prosecution that hangs on the
heads of citizens who are minded to step beyond the
boundaries of what is proper. But to prevent the State
from legislating criminal laws because they instill such
kind of fear is to render the state powerless in
addressing and penalizing socially harmful
conduct.10 Here, the chilling effect that results in
paralysis is an illusion since Section 4(a)(3) clearly
describes the evil that it seeks to punish and creates no
tendency to intimidate the free exercise of one’s
constitutional rights.
Besides, the overbreadth challenge places on
petitioners the heavy burden of proving that under no
set of circumstances will Section 4(a)(3) be
valid.11 Petitioner has failed to discharge this burden.
Section 4(a)(6) of the Cybercrime Law
Section 4(a)(6) provides:
Section 4. Cybercrime Offenses. – The following acts
constitute the offense of cybercrime punishable under
this Act:
(a) Offenses against the confidentiality, integrity and
availability of computer data and systems:
xxxx
(6) Cyber-squatting. – The acquisition of domain name
over the internet in bad faith to profit, mislead,
destroy the reputation, and deprive others from
registering the same, if such a domain name is:
(i) Similar, identical, or confusingly similar to an
existing trademark registered with the appropriate
government agency at the time of the domain
name registration;
(ii) Identical or in any way similar with the name
of a person other than the registrant, in case of a
personal name; and
 (iii) Acquired without right or with intellectual
property interests in it.
Petitioners claim that Section 4(a)(6) or cyber-
squatting violates the equal protection clause12 in that,
not being narrowly tailored, it will cause a user using
his real name to suffer the same fate as those who use
aliases or take the name of another in satire, parody,
or any other literary device. For example, supposing
there exists a well known billionaire-philanthropist
named "Julio Gandolfo," the law would punish for
cyber-squatting both the person who registers such
name because he claims it to be his pseudo-name and
another who registers the name because it happens to
be his real name. Petitioners claim that, considering
the substantial distinction between the two, the law
should recognize the difference.
But there is no real difference whether he uses "Julio
Gandolfo" which happens to be his real name or use it
as a pseudo-name for it is the evil purpose for which
he uses the name that the law condemns. The law is
reasonable in penalizing him for acquiring the domain
name in bad faith to profit, mislead, destroy
reputation, or deprive others who are not ill-
motivated of the rightful opportunity of registering
the same. The challenge to the constitutionality of
Section 4(a)(6) on ground of denial of equal protection
is baseless.
Section 4(b)(3) of the Cybercrime Law
Section 4(b)(3) provides:
Section 4. Cybercrime Offenses. – The following acts
constitute the offense of cybercrime punishable under
this Act:
xxxx
b) Computer-related Offenses:
xxxx
(3) Computer-related Identity Theft. – The intentional
acquisition, use, misuse, transfer, possession,
alteration, or deletion of identifying information
belonging to another, whether natural or juridical,
without right: Provided: that if no damage has yet
been caused, the penalty imposable shall be one (1)
degree lower.
Petitioners claim that Section 4(b)(3) violates the
constitutional rights to due process and to privacy and
correspondence, and transgresses the freedom of the
press.
The right to privacy, or the right to be let alone, was
institutionalized in the 1987 Constitution as a facet of
the right protected by the guarantee against
unreasonable searches and seizures.13 But the Court
acknowledged its existence as early as 1968 in Morfe
v. Mutuc,14 it ruled that the right to privacy exists
independently of its identification with liberty; it is in
itself fully deserving of constitutional protection.
Relevant to any discussion of the right to privacy is the
concept known as the "Zones of Privacy." The Court
explained in "In the Matter of the Petition for Issuance
of Writ of Habeas Corpus of Sabio v. Senator
Gordon"15 the relevance of these zones to the right to
privacy:
Zones of privacy are recognized and protected in our
laws. Within these zones, any form of intrusion is
impermissible unless excused by law and in
accordance with customary legal process. The
meticulous regard we accord to these zones arises not
only from our conviction that the right to privacy is a
"constitutional right" and "the right most valued by
civilized men," but also from our adherence to the
Universal Declaration of Human Rights which
mandates that, "no one shall be subjected to arbitrary
interference with his privacy" and "everyone has the
right to the protection of the law against such
interference or attacks."
Two constitutional guarantees create these zones of
privacy: (a) the right against unreasonable
searches16 and seizures, which is the basis of the right
to be let alone, and (b) the right to privacy of
communication and correspondence.17 In assessing the
challenge that the State has impermissibly intruded
into these zones of privacy, a court must determine
whether a person has exhibited a reasonable
expectation of privacy and, if so, whether that
expectation has been violated by unreasonable
government intrusion.18
The usual identifying information regarding a person
includes his name, his citizenship, his residence
address, his contact number, his place and date of
birth, the name of his spouse if any, his occupation,
and similar data.19 The law punishes those who
acquire or use such identifying information without
right, implicitly to cause damage. Petitioners simply
fail to show how government effort to curb computer-
related identity theft violates the right to privacy and
correspondence as well as the right to due process of
law.
Also, the charge of invalidity of this section based on
the overbreadth doctrine will not hold water since the
specific conducts proscribed do not intrude into
guaranteed freedoms like speech. Clearly, what this
section regulates are specific actions: the acquisition,
use, misuse or deletion of personal identifying data of
another. There is no fundamental right to acquire
another’s personal data.
Further, petitioners fear that Section 4(b)(3) violates
the freedom of the press in that journalists would be
hindered from accessing the unrestricted user account
of a person in the news to secure information about
him that could be published. But this is not the essence
of identity theft that the law seeks to prohibit and
punish. Evidently, the theft of identity information
must be intended for an illegitimate purpose.
Moreover, acquiring and disseminating information
made public by the user himself cannot be regarded as
a form of theft.
The Court has defined intent to gain as an internal act
which can be established through the overt acts of the
offender, and it may be presumed from the furtive
taking of useful property pertaining to another, unless
special circumstances reveal a different intent on the
part of the perpetrator.20 As such, the press, whether
in quest of news reporting or social investigation, has
nothing to fear since a special circumstance is present
to negate intent to gain which is required by this
Section.
Section 4(c)(1) of the Cybercrime Law
Section 4(c)(1) provides:
Sec. 4. Cybercrime Offenses.– The following acts
constitute the offense of cybercrime punishable under
this Act:
xxxx
(c) Content-related Offenses:
(1) Cybersex.– The willful engagement, maintenance,
control, or operation, directly or indirectly, of any
lascivious exhibition of sexual organs or sexual
activity, with the aid of a computer system, for favor
or consideration.
Petitioners claim that the above violates the freedom
of expression clause of the Constitution.21 They
express fear that private communications of sexual
character between husband and wife or consenting
adults, which are not regarded as crimes under the
penal code, would now be regarded as crimes when
done "for favor" in cyberspace. In common usage, the
term "favor" includes "gracious kindness," "a special
privilege or right granted or conceded," or "a token of
love (as a ribbon) usually worn conspicuously."22 This
meaning given to the term "favor" embraces socially
tolerated trysts. The law as written would invite law
enforcement agencies into the bedrooms of married
couples or consenting individuals.
But the deliberations of the Bicameral Committee of
Congress on this section of the Cybercrime Prevention
Act give a proper perspective on the issue. These
deliberations show a lack of intent to penalize a
"private showing x x x between and among two private
persons x x x although that may be a form of obscenity
to some."23 The understanding of those who drew up
the cybercrime law is that the element of "engaging in
a business" is necessary to constitute the illegal
cybersex.24 The Act actually seeks to punish cyber
prostitution, white slave trade, and pornography for
favor and consideration. This includes interactive
prostitution and pornography, i.e., by webcam.25
The subject of Section 4(c)(1)—lascivious exhibition of
sexual organs or sexual activity—is not novel. Article
201 of the RPC punishes "obscene publications and
exhibitions and indecent shows." The Anti-Trafficking
in Persons Act of 2003 penalizes those who "maintain
or hire a person to engage in prostitution or
pornography."26 The law defines prostitution as any
act, transaction, scheme, or design involving the use of
a person by another, for sexual intercourse or
lascivious conduct in exchange for money, profit, or
any other consideration.27
The case of Nogales v. People28 shows the extent to
which the State can regulate materials that serve no
other purpose than satisfy the market for violence,
lust, or pornography.29 The Court weighed the
property rights of individuals against the public
welfare. Private property, if containing pornographic
materials, may be forfeited and destroyed. Likewise,
engaging in sexual acts privately through internet
connection, perceived by some as a right, has to be
balanced with the mandate of the State to eradicate
white slavery and the exploitation of women.
In any event, consenting adults are protected by the
wealth of jurisprudence delineating the bounds of
obscenity.30The Court will not declare Section 4(c)(1)
unconstitutional where it stands a construction that
makes it apply only to persons engaged in the business
of maintaining, controlling, or operating, directly or
indirectly, the lascivious exhibition of sexual organs or
sexual activity with the aid of a computer system as
Congress has intended.
Section 4(c)(2) of the Cybercrime Law
Section 4(c)(2) provides:
Sec. 4. Cybercrime Offenses. – The following acts
constitute the offense of cybercrime punishable under
this Act:
xxxx
(c) Content-related Offenses:
xxxx
(2) Child Pornography. — The unlawful or prohibited
acts defined and punishable by Republic Act No. 9775
or the Anti-Child Pornography Act of 2009,
committed through a computer system: Provided,
That the penalty to be imposed shall be (1) one degree
higher than that provided for in Republic Act No.
9775.
It seems that the above merely expands the scope of
the Anti-Child Pornography Act of 200931 (ACPA) to
cover identical activities in cyberspace. In theory,
nothing prevents the government from invoking the
ACPA when prosecuting persons who commit child
pornography using a computer system. Actually,
ACPA’s definition of child pornography already
embraces the use of "electronic, mechanical, digital,
optical, magnetic or any other means." Notably, no
one has questioned this ACPA provision.
Of course, the law makes the penalty higher by one
degree when the crime is committed in cyberspace.
But no one can complain since the intensity or
duration of penalty is a legislative prerogative and
there is rational basis for such higher penalty.32 The
potential for uncontrolled proliferation of a particular
piece of child pornography when uploaded in the
cyberspace is incalculable.
Petitioners point out that the provision of ACPA that
makes it unlawful for any person to "produce, direct,
manufacture or create any form of child
pornography"33 clearly relates to the prosecution of
persons who aid and abet the core offenses that ACPA
seeks to punish.34 Petitioners are wary that a person
who merely doodles on paper and imagines a sexual
abuse of a 16-year-old is not criminally liable for
producing child pornography but one who formulates
the idea on his laptop would be. Further, if the author
bounces off his ideas on Twitter, anyone who replies
to the tweet could be considered aiding and abetting a
cybercrime.
The question of aiding and abetting the offense by
simply commenting on it will be discussed elsewhere
below. For now the Court must hold that the
constitutionality of Section 4(c)(2) is not successfully
challenged.
Section 4(c)(3) of the Cybercrime Law
Section 4(c)(3) provides:
Sec. 4. Cybercrime Offenses. – The following acts
constitute the offense of cybercrime punishable under
this Act:
xxxx
(c) Content-related Offenses:
xxxx
(3) Unsolicited Commercial Communications. – The
transmission of commercial electronic communication
with the use of computer system which seeks to
advertise, sell, or offer for sale products and services
are prohibited unless:
(i) There is prior affirmative consent from the
recipient; or
(ii) The primary intent of the communication is for
service and/or administrative announcements
from the sender to its existing users, subscribers or
customers; or
(iii) The following conditions are present:
 (aa) The commercial electronic
communication contains a simple, valid, and
reliable way for the recipient to reject receipt
of further commercial electronic messages
(opt-out) from the same source;
(bb) The commercial electronic
communication does not purposely disguise
the source of the electronic message; and
(cc) The commercial electronic
communication does not purposely include
misleading information in any part of the
message in order to induce the recipients to
read the message.
The above penalizes the transmission of unsolicited
commercial communications, also known as "spam."
The term "spam" surfaced in early internet chat rooms
and interactive fantasy games. One who repeats the
same sentence or comment was said to be making a
"spam." The term referred to a Monty Python’s Flying
Circus scene in which actors would keep saying
"Spam, Spam, Spam, and Spam" when reading options
from a menu.35
The Government, represented by the Solicitor
General, points out that unsolicited commercial
communications or spams are a nuisance that wastes
the storage and network capacities of internet service
providers, reduces the efficiency of commerce and
technology, and interferes with the owner’s peaceful
enjoyment of his property. Transmitting spams
amounts to trespass to one’s privacy since the person
sending out spams enters the recipient’s domain
without prior permission. The OSG contends that
commercial speech enjoys less protection in law.
But, firstly, the government presents no basis for
holding that unsolicited electronic ads reduce the
"efficiency of computers." Secondly, people, before the
arrival of the age of computers, have already been
receiving such unsolicited ads by mail. These have
never been outlawed as nuisance since people might
have interest in such ads. What matters is that the
recipient has the option of not opening or reading
these mail ads. That is true with spams. Their
recipients always have the option to delete or not to
read them.
To prohibit the transmission of unsolicited ads would
deny a person the right to read his emails, even
unsolicited commercial ads addressed to him.
Commercial speech is a separate category of speech
which is not accorded the same level of protection as
that given to other constitutionally guaranteed forms
of expression but is nonetheless entitled to
protection.36 The State cannot rob him of this right
without violating the constitutionally guaranteed
freedom of expression. Unsolicited advertisements are
legitimate forms of expression.
Articles 353, 354, and 355 of the Penal Code
Section 4(c)(4) of the Cyber Crime Law
Petitioners dispute the constitutionality of both the
penal code provisions on libel as well as Section 4(c)(4)
of the Cybercrime Prevention Act on cyberlibel.
The RPC provisions on libel read:
Art. 353. Definition of libel. — A libel is public and
malicious imputation of a crime, or of a vice or defect,
real or imaginary, or any act, omission, condition,
status, or circumstance tending to cause the dishonor,
discredit, or contempt of a natural or juridical person,
or to blacken the memory of one who is dead.
Art. 354. Requirement for publicity. — Every
defamatory imputation is presumed to be malicious,
even if it be true, if no good intention and justifiable
motive for making it is shown, except in the following
cases:
1. A private communication made by any person
to another in the performance of any legal, moral
or social duty; and
2. A fair and true report, made in good faith,
without any comments or remarks, of any judicial,
legislative or other official proceedings which are
not of confidential nature, or of any statement,
report or speech delivered in said proceedings, or
of any other act performed by public officers in the
exercise of their functions.
Art. 355. Libel means by writings or similar means. —
A libel committed by means of writing, printing,
lithography, engraving, radio, phonograph, painting,
theatrical exhibition, cinematographic exhibition, or
any similar means, shall be punished by prision
correccional in its minimum and medium periods or a
fine ranging from 200 to 6,000 pesos, or both, in
addition to the civil action which may be brought by
the offended party.
The libel provision of the cybercrime law, on the other
hand, merely incorporates to form part of it the
provisions of the RPC on libel. Thus Section 4(c)(4)
reads:
Sec. 4. Cybercrime Offenses. — The following acts
constitute the offense of cybercrime punishable under
this Act:
xxxx
(c) Content-related Offenses:
xxxx
(4) Libel. — The unlawful or prohibited acts of libel as
defined in Article 355 of the Revised Penal Code, as
amended, committed through a computer system or
any other similar means which may be devised in the
future.
Petitioners lament that libel provisions of the penal
code37 and, in effect, the libel provisions of the
cybercrime law carry with them the requirement of
"presumed malice" even when the latest jurisprudence
already replaces it with the higher standard of "actual
malice" as a basis for conviction.38 Petitioners argue
that inferring "presumed malice" from the accused’s
defamatory statement by virtue of Article 354 of the
penal code infringes on his constitutionally
guaranteed freedom of expression.
Petitioners would go further. They contend that the
laws on libel should be stricken down as
unconstitutional for otherwise good jurisprudence
requiring "actual malice" could easily be overturned as
the Court has done in Fermin v. People39 even where
the offended parties happened to be public figures.
The elements of libel are: (a) the allegation of a
discreditable act or condition concerning another; (b)
publication of the charge; (c) identity of the person
defamed; and (d) existence of malice.40
There is "actual malice" or malice in fact41 when the
offender makes the defamatory statement with the
knowledge that it is false or with reckless disregard of
whether it was false or not.42 The reckless disregard
standard used here requires a high degree of awareness
of probable falsity. There must be sufficient evidence
to permit the conclusion that the accused in fact
entertained serious doubts as to the truth of the
statement he published. Gross or even extreme
negligence is not sufficient to establish actual malice.43
The prosecution bears the burden of proving the
presence of actual malice in instances where such
element is required to establish guilt. The defense of
absence of actual malice, even when the statement
turns out to be false, is available where the offended
party is a public official or a public figure, as in the
cases of Vasquez (a barangay official) and Borjal (the
Executive Director, First National Conference on Land
Transportation). Since the penal code and implicitly,
the cybercrime law, mainly target libel against private
persons, the Court recognizes that these laws imply a
stricter standard of "malice" to convict the author of a
defamatory statement where the offended party is a
public figure. Society’s interest and the maintenance
of good government demand a full discussion of public
affairs.44
Parenthetically, the Court cannot accept the
proposition that its ruling in Fermin disregarded the
higher standard of actual malice or malice in fact when
it found Cristinelli Fermin guilty of committing libel
against complainants who were public figures.
Actually, the Court found the presence of malice in
fact in that case. Thus:
It can be gleaned from her testimony that petitioner
had the motive to make defamatory imputations
against complainants. Thus, petitioner cannot, by
simply making a general denial, convince us that there
was no malice on her part. Verily, not only was there
malice in law, the article being malicious in itself, but
there was also malice in fact, as there was motive to
talk ill against complainants during the electoral
campaign. (Emphasis ours)
Indeed, the Court took into account the relatively
wide leeway given to utterances against public figures
in the above case, cinema and television personalities,
when it modified the penalty of imprisonment to just
a fine of ₱6,000.00.
But, where the offended party is a private individual,
the prosecution need not prove the presence of malice.
The law explicitly presumes its existence (malice in
law) from the defamatory character of the assailed
statement.45 For his defense, the accused must show
that he has a justifiable reason for the defamatory
statement even if it was in fact true.46
Petitioners peddle the view that both the penal code
and the Cybercrime Prevention Act violate the
country’s obligations under the International
Covenant of Civil and Political Rights (ICCPR). They
point out that in Adonis v. Republic of the
Philippines,47 the United Nations Human Rights
Committee (UNHRC) cited its General Comment 34 to
the effect that penal defamation laws should include
the defense of truth.
But General Comment 34 does not say that the truth
of the defamatory statement should constitute an all-
encompassing defense. As it happens, Article 361
recognizes truth as a defense but under the condition
that the accused has been prompted in making the
statement by good motives and for justifiable ends.
Thus:
Art. 361. Proof of the truth. — In every criminal
prosecution for libel, the truth may be given in
evidence to the court and if it appears that the matter
charged as libelous is true, and, moreover, that it was
published with good motives and for justifiable ends,
the defendants shall be acquitted.
Proof of the truth of an imputation of an act or
omission not constituting a crime shall not be
admitted, unless the imputation shall have been made
against Government employees with respect to facts
related to the discharge of their official duties.
In such cases if the defendant proves the truth of the
imputation made by him, he shall be acquitted.
Besides, the UNHRC did not actually enjoin the
Philippines, as petitioners urge, to decriminalize libel.
It simply suggested that defamation laws be crafted
with care to ensure that they do not stifle freedom of
expression.48Indeed, the ICCPR states that although
everyone should enjoy freedom of expression, its
exercise carries with it special duties and
responsibilities. Free speech is not absolute. It is
subject to certain restrictions, as may be necessary and
as may be provided by law.49
The Court agrees with the Solicitor General that libel
is not a constitutionally protected speech and that the
government has an obligation to protect private
individuals from defamation. Indeed, cyberlibel is
actually not a new crime since Article 353, in relation
to Article 355 of the penal code, already punishes it. In
effect, Section 4(c)(4) above merely affirms that online
defamation constitutes "similar means" for committing
libel.
But the Court’s acquiescence goes only insofar as the
cybercrime law penalizes the author of the libelous
statement or article. Cyberlibel brings with it certain
intricacies, unheard of when the penal code provisions
on libel were enacted. The culture associated with
internet media is distinct from that of print.
The internet is characterized as encouraging a
freewheeling, anything-goes writing style.50 In a
sense, they are a world apart in terms of quickness of
the reader’s reaction to defamatory statements posted
in cyberspace, facilitated by one-click reply options
offered by the networking site as well as by the speed
with which such reactions are disseminated down the
line to other internet users. Whether these reactions
to defamatory statement posted on the internet
constitute aiding and abetting libel, acts that Section 5
of the cybercrime law punishes, is another matter that
the Court will deal with next in relation to Section 5
of the law.
Section 5 of the Cybercrime Law
Section 5 provides:
Sec. 5. Other Offenses. — The following acts shall also
constitute an offense:
(a) Aiding or Abetting in the Commission of
Cybercrime. – Any person who willfully abets or
aids in the commission of any of the offenses
enumerated in this Act shall be held liable.
(b) Attempt in the Commission of Cybercrime. —
Any person who willfully attempts to commit any
of the offenses enumerated in this Act shall be held
liable.
Petitioners assail the constitutionality of Section 5 that
renders criminally liable any person who willfully
abets or aids in the commission or attempts to commit
any of the offenses enumerated as cybercrimes. It
suffers from overbreadth, creating a chilling and
deterrent effect on protected expression.
The Solicitor General contends, however, that the
current body of jurisprudence and laws on aiding and
abetting sufficiently protects the freedom of
expression of "netizens," the multitude that avail
themselves of the services of the internet. He points
out that existing laws and jurisprudence sufficiently
delineate the meaning of "aiding or abetting" a crime
as to protect the innocent. The Solicitor General
argues that plain, ordinary, and common usage is at
times sufficient to guide law enforcement agencies in
enforcing the law.51 The legislature is not required to
define every single word contained in the laws they
craft.
Aiding or abetting has of course well-defined meaning
and application in existing laws. When a person aids
or abets another in destroying a forest,52 smuggling
merchandise into the country,53 or interfering in the
peaceful picketing of laborers,54 his action is
essentially physical and so is susceptible to easy
assessment as criminal in character. These forms of
aiding or abetting lend themselves to the tests of
common sense and human experience.
But, when it comes to certain cybercrimes, the waters
are muddier and the line of sight is somewhat blurred.
The idea of "aiding or abetting" wrongdoings online
threatens the heretofore popular and unchallenged
dogmas of cyberspace use.
According to the 2011 Southeast Asia Digital
Consumer Report, 33% of Filipinos have accessed the
internet within a year, translating to about 31 million
users.55 Based on a recent survey, the Philippines ranks
6th in the top 10 most engaged countries for social
networking.56 Social networking sites build social
relations among people who, for example, share
interests, activities, backgrounds, or real-life
connections.57
Two of the most popular of these sites are Facebook
and Twitter. As of late 2012, 1.2 billion people with
shared interests use Facebook to get in touch.58 Users
register at this site, create a personal profile or an open
book of who they are, add other users as friends, and
exchange messages, including automatic notifications
when they update their profile.59 A user can post a
statement, a photo, or a video on Facebook, which can
be made visible to anyone, depending on the user’s
privacy settings.
If the post is made available to the public, meaning to
everyone and not only to his friends, anyone on
Facebook can react to the posting, clicking any of
several buttons of preferences on the program’s screen
such as "Like," "Comment," or "Share." "Like" signifies
that the reader likes the posting while "Comment"
enables him to post online his feelings or views about
the same, such as "This is great!" When a Facebook
user "Shares" a posting, the original "posting" will
appear on his own Facebook profile, consequently
making it visible to his down-line Facebook Friends.
Twitter, on the other hand, is an internet social
networking and microblogging service that enables its
users to send and read short text-based messages of up
to 140 characters. These are known as "Tweets."
Microblogging is the practice of posting small pieces of
digital content—which could be in the form of text,
pictures, links, short videos, or other media—on the
internet. Instead of friends, a Twitter user has
"Followers," those who subscribe to this particular
user’s posts, enabling them to read the same, and
"Following," those whom this particular user is
subscribed to, enabling him to read their posts. Like
Facebook, a Twitter user can make his tweets available
only to his Followers, or to the general public. If a post
is available to the public, any Twitter user can
"Retweet" a given posting. Retweeting is just reposting
or republishing another person’s tweet without the
need of copying and pasting it.
In the cyberworld, there are many actors: a) the
blogger who originates the assailed statement; b) the
blog service provider like Yahoo; c) the internet
service provider like PLDT, Smart, Globe, or Sun; d)
the internet café that may have provided the computer
used for posting the blog; e) the person who makes a
favorable comment on the blog; and f) the person who
posts a link to the blog site.60 Now, suppose Maria (a
blogger) maintains a blog on WordPress.com (blog
service provider). She needs the internet to access her
blog so she subscribes to Sun Broadband (Internet
Service Provider).
One day, Maria posts on her internet account the
statement that a certain married public official has an
illicit affair with a movie star. Linda, one of Maria’s
friends who sees this post, comments online, "Yes, this
is so true! They are so immoral." Maria’s original post
is then multiplied by her friends and the latter’s
friends, and down the line to friends of friends almost
ad infinitum. Nena, who is a stranger to both Maria
and Linda, comes across this blog, finds it interesting
and so shares the link to this apparently defamatory
blog on her Twitter account. Nena’s "Followers" then
"Retweet" the link to that blog site.
Pamela, a Twitter user, stumbles upon a random
person’s "Retweet" of Nena’s original tweet and posts
this on her Facebook account. Immediately, Pamela’s
Facebook Friends start Liking and making Comments
on the assailed posting. A lot of them even press the
Share button, resulting in the further spread of the
original posting into tens, hundreds, thousands, and
greater postings.
The question is: are online postings such as "Liking" an
openly defamatory statement, "Commenting" on it, or
"Sharing" it with others, to be regarded as "aiding or
abetting?" In libel in the physical world, if Nestor
places on the office bulletin board a small poster that
says, "Armand is a thief!," he could certainly be
charged with libel. If Roger, seeing the poster, writes
on it, "I like this!," that could not be libel since he did
not author the poster. If Arthur, passing by and
noticing the poster, writes on it, "Correct!," would that
be libel? No, for he merely expresses agreement with
the statement on the poster. He still is not its author.
Besides, it is not clear if aiding or abetting libel in the
physical world is a crime.
But suppose Nestor posts the blog, "Armand is a thief!"
on a social networking site. Would a reader and his
Friends or Followers, availing themselves of any of the
"Like," "Comment," and "Share" reactions, be guilty of
aiding or abetting libel? And, in the complex world of
cyberspace expressions of thoughts, when will one be
liable for aiding or abetting cybercrimes? Where is the
venue of the crime?
Except for the original author of the assailed
statement, the rest (those who pressed Like, Comment
and Share) are essentially knee-jerk sentiments of
readers who may think little or haphazardly of their
response to the original posting. Will they be liable for
aiding or abetting? And, considering the inherent
impossibility of joining hundreds or thousands of
responding "Friends" or "Followers" in the criminal
charge to be filed in court, who will make a choice as
to who should go to jail for the outbreak of the
challenged posting?
The old parameters for enforcing the traditional form
of libel would be a square peg in a round hole when
applied to cyberspace libel. Unless the legislature
crafts a cyber libel law that takes into account its
unique circumstances and culture, such law will tend
to create a chilling effect on the millions that use this
new medium of communication in violation of their
constitutionally-guaranteed right to freedom of
expression.
The United States Supreme Court faced the same issue
in Reno v. American Civil Liberties Union,61 a case
involving the constitutionality of the
Communications Decency Act of 1996. The law
prohibited (1) the knowing transmission, by means of
a telecommunications device, of
"obscene or indecent" communications to any
recipient under 18 years of age; and (2) the knowing
use of an interactive computer service to send to a
specific person or persons under 18 years of age or to
display in a manner available to a person under 18
years of age communications that, in context, depict or
describe, in terms "patently offensive" as measured by
contemporary community standards, sexual or
excretory activities or organs.
Those who challenged the Act claim that the law
violated the First Amendment’s guarantee of freedom
of speech for being overbroad. The U.S. Supreme
Court agreed and ruled:
The vagueness of the Communications Decency Act of
1996 (CDA), 47 U.S.C.S. §223, is a matter of special
concern for two reasons. First, the CDA is a content-
based regulation of speech. The vagueness of such a
regulation raises special U.S. Const. amend. I concerns
because of its obvious chilling effect on free speech.
Second, the CDA is a criminal statute. In addition to
the opprobrium and stigma of a criminal conviction,
the CDA threatens violators with penalties including
up to two years in prison for each act of violation. The
severity of criminal sanctions may well cause speakers
to remain silent rather than communicate even
arguably unlawful words, ideas, and images. As a
practical matter, this increased deterrent effect,
coupled with the risk of discriminatory enforcement
of vague regulations, poses greater U.S. Const. amend.
I concerns than those implicated by certain civil
regulations.
xxxx
The Communications Decency Act of 1996 (CDA), 47
U.S.C.S. § 223, presents a great threat of censoring
speech that, in fact, falls outside the statute's scope.
Given the vague contours of the coverage of the
statute, it unquestionably silences some speakers
whose messages would be entitled to constitutional
protection. That danger provides further reason for
insisting that the statute not be overly broad. The
CDA’s burden on protected speech cannot be justified
if it could be avoided by a more carefully drafted
statute. (Emphasis ours)
Libel in the cyberspace can of course stain a person’s
image with just one click of the mouse. Scurrilous
statements can spread and travel fast across the globe
like bad news. Moreover, cyberlibel often goes hand
in hand with cyberbullying that oppresses the victim,
his relatives, and friends, evoking from mild to
disastrous reactions. Still, a governmental purpose,
which seeks to regulate the use of this cyberspace
communication technology to protect a person’s
reputation and peace of mind, cannot adopt means
that will unnecessarily and broadly sweep, invading
the area of protected freedoms.62
If such means are adopted, self-inhibition borne of fear
of what sinister predicaments await internet users will
suppress otherwise robust discussion of public issues.
Democracy will be threatened and with it, all liberties.
Penal laws should provide reasonably clear guidelines
for law enforcement officials and triers of facts to
prevent arbitrary and discriminatory
enforcement.63 The terms "aiding or abetting"
constitute broad sweep that generates chilling effect
on those who express themselves through cyberspace
posts, comments, and other messages.64 Hence, Section
5 of the cybercrime law that punishes "aiding or
abetting" libel on the cyberspace is a nullity.
When a penal statute encroaches upon the freedom of
speech, a facial challenge grounded on the void-for-
vagueness doctrine is acceptable. The inapplicability
of the doctrine must be carefully delineated. As Justice
Antonio T. Carpio explained in his dissent in
Romualdez v. Commission on Elections,65 "we must
view these statements of the Court on the
inapplicability of the overbreadth and vagueness
doctrines to penal statutes as appropriate only insofar
as these doctrines are used to mount ‘facial’ challenges
to penal statutes not involving free speech."
In an "as applied" challenge, the petitioner who claims
a violation of his constitutional right can raise any
constitutional ground – absence of due process, lack of
fair notice, lack of ascertainable standards,
overbreadth, or vagueness. Here, one can challenge
the constitutionality of a statute only if he asserts a
violation of his own rights. It prohibits one from
assailing the constitutionality of the statute based
solely on the violation of the rights of third persons
not before the court. This rule is also known as the
prohibition against third-party standing.66
But this rule admits of exceptions. A petitioner may
for instance mount a "facial" challenge to the
constitutionality of a statute even if he claims no
violation of his own rights under the assailed statute
where it involves free speech on grounds of
overbreadth or vagueness of the statute.
The rationale for this exception is to counter the
"chilling effect" on protected speech that comes from
statutes violating free speech. A person who does not
know whether his speech constitutes a crime under an
overbroad or vague law may simply restrain himself
from speaking in order to avoid being charged of a
crime. The overbroad or vague law thus chills him into
silence.67
As already stated, the cyberspace is an incomparable,
pervasive medium of communication. It is inevitable
that any government threat of punishment regarding
certain uses of the medium creates a chilling effect on
the constitutionally-protected freedom of expression
of the great masses that use it. In this case, the
particularly complex web of interaction on social
media websites would give law enforcers such latitude
that they could arbitrarily or selectively enforce the
law.
Who is to decide when to prosecute persons who boost
the visibility of a posting on the internet by liking it?
Netizens are not given "fair notice" or warning as to
what is criminal conduct and what is lawful conduct.
When a case is filed, how will the court ascertain
whether or not one netizen’s comment aided and
abetted a cybercrime while another comment did not?
Of course, if the "Comment" does not merely react to
the original posting but creates an altogether new
defamatory story against Armand like "He beats his
wife and children," then that should be considered an
original posting published on the internet. Both the
penal code and the cybercrime law clearly punish
authors of defamatory publications. Make no mistake,
libel destroys reputations that society values. Allowed
to cascade in the internet, it will destroy relationships
and, under certain circumstances, will generate
enmity and tension between social or economic
groups, races, or religions, exacerbating existing
tension in their relationships.
In regard to the crime that targets child pornography,
when "Google procures, stores, and indexes child
pornography and facilitates the completion of
transactions involving the dissemination of child
pornography," does this make Google and its users
aiders and abettors in the commission of child
pornography crimes?68 Byars highlights a feature in
the American law on child pornography that the
Cybercrimes law lacks—the exemption of a provider
or notably a plain user of interactive computer service
from civil liability for child pornography as follows:
No provider or user of an interactive computer service
shall be treated as the publisher or speaker of any
information provided by another information content
provider and cannot be held civilly liable for any
action voluntarily taken in good faith to restrict access
to or availability of material that the provider or user
considers to be obscene...whether or not such material
is constitutionally protected.69
When a person replies to a Tweet containing child
pornography, he effectively republishes it whether
wittingly or unwittingly. Does this make him a willing
accomplice to the distribution of child pornography?
When a user downloads the Facebook mobile
application, the user may give consent to Facebook to
access his contact details. In this way, certain
information is forwarded to third parties and
unsolicited commercial communication could be
disseminated on the basis of this information.70 As the
source of this information, is the user aiding the
distribution of this communication? The legislature
needs to address this clearly to relieve users of
annoying fear of possible criminal prosecution.
Section 5 with respect to Section 4(c)(4) is
unconstitutional. Its vagueness raises apprehension on
the part of internet users because of its obvious chilling
effect on the freedom of expression, especially since
the crime of aiding or abetting ensnares all the actors
in the cyberspace front in a fuzzy way. What is more,
as the petitioners point out, formal crimes such as libel
are not punishable unless consummated.71 In the
absence of legislation tracing the interaction of
netizens and their level of responsibility such as in
other countries, Section 5, in relation to Section 4(c)(4)
on Libel, Section 4(c)(3) on Unsolicited Commercial
Communications, and Section 4(c)(2) on Child
Pornography, cannot stand scrutiny.
But the crime of aiding or abetting the commission of
cybercrimes under Section 5 should be permitted to
apply to Section 4(a)(1) on Illegal Access, Section
4(a)(2) on Illegal Interception, Section 4(a)(3) on Data
Interference, Section 4(a)(4) on System Interference,
Section 4(a)(5) on Misuse of Devices, Section 4(a)(6)
on Cyber-squatting, Section 4(b)(1) on Computer-
related Forgery, Section 4(b)(2) on Computer-related
Fraud, Section 4(b)(3) on Computer-related Identity
Theft, and Section 4(c)(1) on Cybersex. None of these
offenses borders on the exercise of the freedom of
expression.
The crime of willfully attempting to commit any of
these offenses is for the same reason not objectionable.
A hacker may for instance have done all that is
necessary to illegally access another party’s computer
system but the security employed by the system’s
lawful owner could frustrate his effort. Another
hacker may have gained access to usernames and
passwords of others but fail to use these because the
system supervisor is alerted.72 If Section 5 that
punishes any person who willfully attempts to commit
this specific offense is not upheld, the owner of the
username and password could not file a complaint
against him for attempted hacking. But this is not
right. The hacker should not be freed from liability
simply because of the vigilance of a lawful owner or
his supervisor.
Petitioners of course claim that Section 5 lacks positive
limits and could cover the innocent.73 While this may
be true with respect to cybercrimes that tend to sneak
past the area of free expression, any attempt to commit
the other acts specified in Section 4(a)(1), Section
4(a)(2), Section 4(a)(3), Section 4(a)(4), Section 4(a)(5),
Section 4(a)(6), Section 4(b)(1), Section 4(b)(2),
Section 4(b)(3), and Section 4(c)(1) as well as the actors
aiding and abetting the commission of such acts can be
identified with some reasonable certainty through
adroit tracking of their works. Absent concrete proof
of the same, the innocent will of course be spared.
Section 6 of the Cybercrime Law
Section 6 provides:
Sec. 6. All crimes defined and penalized by the Revised
Penal Code, as amended, and special laws, if
committed by, through and with the use of
information and communications technologies shall
be covered by the relevant provisions of this Act:
Provided, That the penalty to be imposed shall be one
(1) degree higher than that provided for by the
Revised Penal Code, as amended, and special laws, as
the case may be.
Section 6 merely makes commission of existing crimes
through the internet a qualifying circumstance. As the
Solicitor General points out, there exists a substantial
distinction between crimes committed through the
use of information and communications technology
and similar crimes committed using other means. In
using the technology in question, the offender often
evades identification and is able to reach far more
victims or cause greater harm. The distinction,
therefore, creates a basis for higher penalties for
cybercrimes.
Section 7 of the Cybercrime Law
Section 7 provides:
Sec. 7. Liability under Other Laws. — A prosecution
under this Act shall be without prejudice to any
liability for violation of any provision of the Revised
Penal Code, as amended, or special laws.
The Solicitor General points out that Section 7 merely
expresses the settled doctrine that a single set of acts
may be prosecuted and penalized simultaneously
under two laws, a special law and the Revised Penal
Code. When two different laws define two crimes,
prior jeopardy as to one does not bar prosecution of the
other although both offenses arise from the same fact,
if each crime involves some important act which is not
an essential element of the other.74 With the exception
of the crimes of online libel and online child
pornography, the Court would rather leave the
determination of the correct application of Section 7
to actual cases.
Online libel is different. There should be no question
that if the published material on print, said to be
libelous, is again posted online or vice versa, that
identical material cannot be the subject of two
separate libels. The two offenses, one a violation of
Article 353 of the Revised Penal Code and the other a
violation of Section 4(c)(4) of R.A. 10175 involve
essentially the same elements and are in fact one and
the same offense. Indeed, the OSG itself claims that
online libel under Section 4(c)(4) is not a new crime
but is one already punished under Article 353. Section
4(c)(4) merely establishes the computer system as
another means of publication.75 Charging the offender
under both laws would be a blatant violation of the
proscription against double jeopardy.76
The same is true with child pornography committed
online. Section 4(c)(2) merely expands the ACPA’s
scope so as to include identical activities in cyberspace.
As previously discussed, ACPA’s definition of child
pornography in fact already covers the use of
"electronic, mechanical, digital, optical, magnetic or
any other means." Thus, charging the offender under
both Section 4(c)(2) and ACPA would likewise be
tantamount to a violation of the constitutional
prohibition against double jeopardy.
Section 8 of the Cybercrime Law
Section 8 provides:
Sec. 8. Penalties. — Any person found guilty of any of
the punishable acts enumerated in Sections 4(a) and
4(b) of this Act shall be punished with imprisonment
of prision mayor or a fine of at least Two hundred
thousand pesos (Ph₱200,000.00) up to a maximum
amount commensurate to the damage incurred or
both.
Any person found guilty of the punishable act under
Section 4(a)(5) shall be punished with imprisonment
of prision mayor or a fine of not more than Five
hundred thousand pesos (Ph₱500,000.00) or both.
If punishable acts in Section 4(a) are committed
against critical infrastructure, the penalty of reclusion
temporal or a fine of at least Five hundred thousand
pesos (Ph₱500,000.00) up to maximum amount
commensurate to the damage incurred or both, shall
be imposed.
Any person found guilty of any of the punishable acts
enumerated in Section 4(c)(1) of this Act shall be
punished with imprisonment of prision mayor or a
fine of at least Two hundred thousand pesos
(Ph₱200,000.00) but not exceeding One million pesos
(Ph₱1,000,000.00) or both.
Any person found guilty of any of the punishable acts
enumerated in Section 4(c)(2) of this Act shall be
punished with the penalties as enumerated in
Republic Act No. 9775 or the "Anti-Child
Pornography Act of 2009:" Provided, That the penalty
to be imposed shall be one (1) degree higher than that
provided for in Republic Act No. 9775, if committed
through a computer system.
Any person found guilty of any of the punishable acts
enumerated in Section 4(c)(3) shall be punished with
imprisonment of arresto mayor or a fine of at least
Fifty thousand pesos (Ph₱50,000.00) but not exceeding
Two hundred fifty thousand pesos (Ph₱250,000.00) or
both.
Any person found guilty of any of the punishable acts
enumerated in Section 5 shall be punished with
imprisonment one (1) degree lower than that of the
prescribed penalty for the offense or a fine of at least
One hundred thousand pesos (Ph₱100,000.00) but not
exceeding Five hundred thousand pesos
(Ph₱500,000.00) or both.
Section 8 provides for the penalties for the following
crimes: Sections 4(a) on Offenses Against the
Confidentiality, Integrity and Availability of
Computer Data and Systems; 4(b) on Computer-
related Offenses; 4(a)(5) on Misuse of Devices; when
the crime punishable under 4(a) is committed against
critical infrastructure; 4(c)(1) on Cybersex; 4(c)(2) on
Child Pornography; 4(c)(3) on Unsolicited
Commercial Communications; and Section 5 on
Aiding or Abetting, and Attempt in the Commission
of Cybercrime.
The matter of fixing penalties for the commission of
crimes is as a rule a legislative prerogative. Here the
legislature prescribed a measure of severe penalties for
what it regards as deleterious cybercrimes. They
appear proportionate to the evil sought to be punished.
The power to determine penalties for offenses is not
diluted or improperly wielded simply because at some
prior time the act or omission was but an element of
another offense or might just have been connected
with another crime.77 Judges and magistrates can only
interpret and apply them and have no authority to
modify or revise their range as determined by the
legislative department.
The courts should not encroach on this prerogative of
the lawmaking body.78
Section 12 of the Cybercrime Law
Section 12 provides:
Sec. 12. Real-Time Collection of Traffic Data. — Law
enforcement authorities, with due cause, shall be
authorized to collect or record by technical or
electronic means traffic data in real-time associated
with specified communications transmitted by means
of a computer system.
Traffic data refer only to the communication’s origin,
destination, route, time, date, size, duration, or type of
underlying service, but not content, nor identities.
All other data to be collected or seized or disclosed will
require a court warrant.
Service providers are required to cooperate and assist
law enforcement authorities in the collection or
recording of the above-stated information.
The court warrant required under this section shall
only be issued or granted upon written application and
the examination under oath or affirmation of the
applicant and the witnesses he may produce and the
showing: (1) that there are reasonable grounds to
believe that any of the crimes enumerated
hereinabove has been committed, or is being
committed, or is about to be committed; (2) that there
are reasonable grounds to believe that evidence that
will be obtained is essential to the conviction of any
person for, or to the solution of, or to the prevention
of, any such crimes; and (3) that there are no other
means readily available for obtaining such evidence.
Petitioners assail the grant to law enforcement
agencies of the power to collect or record traffic data
in real time as tending to curtail civil liberties or
provide opportunities for official abuse. They claim
that data showing where digital messages come from,
what kind they are, and where they are destined need
not be incriminating to their senders or recipients
before they are to be protected. Petitioners invoke the
right of every individual to privacy and to be protected
from government snooping into the messages or
information that they send to one another.
The first question is whether or not Section 12 has a
proper governmental purpose since a law may require
the disclosure of matters normally considered private
but then only upon showing that such requirement
has a rational relation to the purpose of the law,79 that
there is a compelling State interest behind the law, and
that the provision itself is narrowly drawn.80 In
assessing regulations affecting privacy rights, courts
should balance the legitimate concerns of the State
against constitutional guarantees.81
Undoubtedly, the State has a compelling interest in
enacting the cybercrime law for there is a need to put
order to the tremendous activities in cyberspace for
public good.82 To do this, it is within the realm of
reason that the government should be able to monitor
traffic data to enhance its ability to combat all sorts of
cybercrimes.
Chapter IV of the cybercrime law, of which the
collection or recording of traffic data is a part, aims to
provide law enforcement authorities with the power
they need for spotting, preventing, and investigating
crimes committed in cyberspace. Crime-fighting is a
state business. Indeed, as Chief Justice Sereno points
out, the Budapest Convention on Cybercrimes
requires signatory countries to adopt legislative
measures to empower state authorities to collect or
record "traffic data, in real time, associated with
specified communications."83 And this is precisely
what Section 12 does. It empowers law enforcement
agencies in this country to collect or record such data.
But is not evidence of yesterday’s traffic data, like the
scene of the crime after it has been committed,
adequate for fighting cybercrimes and, therefore, real-
time data is superfluous for that purpose? Evidently, it
is not. Those who commit the crimes of accessing a
computer system without right,84 transmitting
viruses,85 lasciviously exhibiting sexual organs or
sexual activity for favor or consideration;86 and
producing child pornography87 could easily evade
detection and prosecution by simply moving the
physical location of their computers or laptops from
day to day. In this digital age, the wicked can commit
cybercrimes from virtually anywhere: from internet
cafés, from kindred places that provide free internet
services, and from unregistered mobile internet
connectors. Criminals using cellphones under pre-
paid arrangements and with unregistered SIM cards do
not have listed addresses and can neither be located
nor identified. There are many ways the cyber
criminals can quickly erase their tracks. Those who
peddle child pornography could use relays of
computers to mislead law enforcement authorities
regarding their places of operations. Evidently, it is
only real-time traffic data collection or recording and
a subsequent recourse to court-issued search and
seizure warrant that can succeed in ferreting them out.
Petitioners of course point out that the provisions of
Section 12 are too broad and do not provide ample
safeguards against crossing legal boundaries and
invading the people’s right to privacy. The concern is
understandable. Indeed, the Court recognizes in
Morfe v. Mutuc88 that certain constitutional
guarantees work together to create zones of privacy
wherein governmental powers may not intrude, and
that there exists an independent constitutional right of
privacy. Such right to be left alone has been regarded
as the beginning of all freedoms.89
But that right is not unqualified. In Whalen v.
Roe,90 the United States Supreme Court classified
privacy into two categories: decisional privacy and
informational privacy. Decisional privacy involves the
right to independence in making certain important
decisions, while informational privacy refers to the
interest in avoiding disclosure of personal matters. It
is the latter right—the right to informational
privacy—that those who oppose government
collection or recording of traffic data in real-time seek
to protect.
Informational privacy has two aspects: the right not to
have private information disclosed, and the right to
live freely without surveillance and intrusion.91 In
determining whether or not a matter is entitled to the
right to privacy, this Court has laid down a two-fold
test. The first is a subjective test, where one claiming
the right must have an actual or legitimate expectation
of privacy over a certain matter. The second is an
objective test, where his or her expectation of privacy
must be one society is prepared to accept as objectively
reasonable.92
Since the validity of the cybercrime law is being
challenged, not in relation to its application to a
particular person or group, petitioners’ challenge to
Section 12 applies to all information and
communications technology (ICT) users, meaning the
large segment of the population who use all sorts of
electronic devices to communicate with one another.
Consequently, the expectation of privacy is to be
measured from the general public’s point of view.
Without reasonable expectation of privacy, the right
to it would have no basis in fact.
As the Solicitor General points out, an ordinary ICT
user who courses his communication through a service
provider, must of necessity disclose to the latter, a
third person, the traffic data needed for connecting
him to the recipient ICT user. For example, an ICT
user who writes a text message intended for another
ICT user must furnish his service provider with his
cellphone number and the cellphone number of his
recipient, accompanying the message sent. It is this
information that creates the traffic data. Transmitting
communications is akin to putting a letter in an
envelope properly addressed, sealing it closed, and
sending it through the postal service. Those who post
letters have no expectations that no one will read the
information appearing outside the envelope.
Computer data—messages of all kinds—travel across
the internet in packets and in a way that may be
likened to parcels of letters or things that are sent
through the posts. When data is sent from any one
source, the content is broken up into packets and
around each of these packets is a wrapper or header.
This header contains the traffic data: information that
tells computers where the packet originated, what
kind of data is in the packet (SMS, voice call, video,
internet chat messages, email, online browsing data,
etc.), where the packet is going, and how the packet
fits together with other packets.93 The difference is
that traffic data sent through the internet at times
across the ocean do not disclose the actual names and
addresses (residential or office) of the sender and the
recipient, only their coded internet protocol (IP)
addresses. The packets travel from one computer
system to another where their contents are pieced
back together.
Section 12 does not permit law enforcement
authorities to look into the contents of the messages
and uncover the identities of the sender and the
recipient.
For example, when one calls to speak to another
through his cellphone, the service provider’s
communication’s system will put his voice message
into packets and send them to the other person’s
cellphone where they are refitted together and heard.
The latter’s spoken reply is sent to the caller in the
same way. To be connected by the service provider,
the sender reveals his cellphone number to the service
provider when he puts his call through. He also reveals
the cellphone number to the person he calls. The other
ways of communicating electronically follow the same
basic pattern.
In Smith v. Maryland,94 cited by the Solicitor General,
the United States Supreme Court reasoned that
telephone users in the ‘70s must realize that they
necessarily convey phone numbers to the telephone
company in order to complete a call. That Court ruled
that even if there is an expectation that phone
numbers one dials should remain private, such
expectation is not one that society is prepared to
recognize as reasonable.
In much the same way, ICT users must know that they
cannot communicate or exchange data with one
another over cyberspace except through some service
providers to whom they must submit certain traffic
data that are needed for a successful cyberspace
communication. The conveyance of this data takes
them out of the private sphere, making the expectation
to privacy in regard to them an expectation that
society is not prepared to recognize as reasonable.
The Court, however, agrees with Justices Carpio and
Brion that when seemingly random bits of traffic data
are gathered in bulk, pooled together, and analyzed,
they reveal patterns of activities which can then be
used to create profiles of the persons under
surveillance. With enough traffic data, analysts may
be able to determine a person’s close associations,
religious views, political affiliations, even sexual
preferences. Such information is likely beyond what
the public may expect to be disclosed, and clearly falls
within matters protected by the right to privacy. But
has the procedure that Section 12 of the law provides
been drawn narrowly enough to protect individual
rights?
Section 12 empowers law enforcement authorities,
"with due cause," to collect or record by technical or
electronic means traffic data in real-time. Petitioners
point out that the phrase "due cause" has no precedent
in law or jurisprudence and that whether there is due
cause or not is left to the discretion of the police.
Replying to this, the Solicitor General asserts that
Congress is not required to define the meaning of
every word it uses in drafting the law.
Indeed, courts are able to save vague provisions of law
through statutory construction. But the cybercrime
law, dealing with a novel situation, fails to hint at the
meaning it intends for the phrase "due cause." The
Solicitor General suggests that "due cause" should
mean "just reason or motive" and "adherence to a
lawful procedure." But the Court cannot draw this
meaning since Section 12 does not even bother to
relate the collection of data to the probable
commission of a particular crime. It just says, "with
due cause," thus justifying a general gathering of data.
It is akin to the use of a general search warrant that the
Constitution prohibits.
Due cause is also not descriptive of the purpose for
which data collection will be used. Will the law
enforcement agencies use the traffic data to identify
the perpetrator of a cyber attack? Or will it be used to
build up a case against an identified suspect? Can the
data be used to prevent cybercrimes from happening?
The authority that Section 12 gives law enforcement
agencies is too sweeping and lacks restraint. While it
says that traffic data collection should not disclose
identities or content data, such restraint is but an
illusion. Admittedly, nothing can prevent law
enforcement agencies holding these data in their
hands from looking into the identity of their sender or
receiver and what the data contains. This will
unnecessarily expose the citizenry to leaked
information or, worse, to extortion from certain bad
elements in these agencies.
Section 12, of course, limits the collection of traffic
data to those "associated with specified
communications." But this supposed limitation is no
limitation at all since, evidently, it is the law
enforcement agencies that would specify the target
communications. The power is virtually limitless,
enabling law enforcement authorities to engage in
"fishing expedition," choosing whatever specified
communication they want. This evidently threatens
the right of individuals to privacy.
The Solicitor General points out that Section 12 needs
to authorize collection of traffic data "in real time"
because it is not possible to get a court warrant that
would authorize the search of what is akin to a
"moving vehicle." But warrantless search is associated
with a police officer’s determination of probable cause
that a crime has been committed, that there is no
opportunity for getting a warrant, and that unless the
search is immediately carried out, the thing to be
searched stands to be removed. These preconditions
are not provided in Section 12.
The Solicitor General is honest enough to admit that
Section 12 provides minimal protection to internet
users and that the procedure envisioned by the law
could be better served by providing for more robust
safeguards. His bare assurance that law enforcement
authorities will not abuse the provisions of Section 12
is of course not enough. The grant of the power to
track cyberspace communications in real time and
determine their sources and destinations must be
narrowly drawn to preclude abuses.95
Petitioners also ask that the Court strike down Section
12 for being violative of the void-for-vagueness
doctrine and the overbreadth doctrine. These
doctrines however, have been consistently held by
this Court to apply only to free speech cases. But
Section 12 on its own neither regulates nor punishes
any type of speech. Therefore, such analysis is
unnecessary.
This Court is mindful that advances in technology
allow the government and kindred institutions to
monitor individuals and place them under
surveillance in ways that have previously been
impractical or even impossible. "All the forces of a
technological age x x x operate to narrow the area of
privacy and facilitate intrusions into it. In modern
terms, the capacity to maintain and support this
enclave of private life marks the difference between a
democratic and a totalitarian society."96 The Court
must ensure that laws seeking to take advantage of
these technologies be written with specificity and
definiteness as to ensure respect for the rights that the
Constitution guarantees.
Section 13 of the Cybercrime Law
Section 13 provides:
Sec. 13. Preservation of Computer Data. — The
integrity of traffic data and subscriber information
relating to communication services provided by a
service provider shall be preserved for a minimum
period of six (6) months from the date of the
transaction. Content data shall be similarly preserved
for six (6) months from the date of receipt of the order
from law enforcement authorities requiring its
preservation.
Law enforcement authorities may order a one-time
extension for another six (6) months: Provided, That
once computer data preserved, transmitted or stored
by a service provider is used as evidence in a case, the
mere furnishing to such service provider of the
transmittal document to the Office of the Prosecutor
shall be deemed a notification to preserve the
computer data until the termination of the case.
The service provider ordered to preserve computer
data shall keep confidential the order and its
compliance.
Petitioners in G.R. 20339197 claim that Section 13
constitutes an undue deprivation of the right to
property. They liken the data preservation order that
law enforcement authorities are to issue as a form of
garnishment of personal property in civil forfeiture
proceedings. Such order prevents internet users from
accessing and disposing of traffic data that essentially
belong to them.
No doubt, the contents of materials sent or received
through the internet belong to their authors or
recipients and are to be considered private
communications. But it is not clear that a service
provider has an obligation to indefinitely keep a copy
of the same as they pass its system for the benefit of
users. By virtue of Section 13, however, the law now
requires service providers to keep traffic data and
subscriber information relating to communication
services for at least six months from the date of the
transaction and those relating to content data for at
least six months from receipt of the order for their
preservation.
Actually, the user ought to have kept a copy of that
data when it crossed his computer if he was so minded.
The service provider has never assumed responsibility
for their loss or deletion while in its keep.
At any rate, as the Solicitor General correctly points
out, the data that service providers preserve on orders
of law enforcement authorities are not made
inaccessible to users by reason of the issuance of such
orders. The process of preserving data will not unduly
hamper the normal transmission or use of the same.
Section 14 of the Cybercrime Law
Section 14 provides:
Sec. 14. Disclosure of Computer Data. — Law
enforcement authorities, upon securing a court
warrant, shall issue an order requiring any person or
service provider to disclose or submit subscriber’s
information, traffic data or relevant data in his/its
possession or control within seventy-two (72) hours
from receipt of the order in relation to a valid
complaint officially docketed and assigned for
investigation and the disclosure is necessary and
relevant for the purpose of investigation.
The process envisioned in Section 14 is being likened
to the issuance of a subpoena. Petitioners’ objection is
that the issuance of subpoenas is a judicial function.
But it is well-settled that the power to issue subpoenas
is not exclusively a judicial function. Executive
agencies have the power to issue subpoena as an
adjunct of their investigatory powers.98
Besides, what Section 14 envisions is merely the
enforcement of a duly issued court warrant, a function
usually lodged in the hands of law enforcers to enable
them to carry out their executive functions. The
prescribed procedure for disclosure would not
constitute an unlawful search or seizure nor would it
violate the privacy of communications and
correspondence. Disclosure can be made only after
judicial intervention.
Section 15 of the Cybercrime Law
Section 15 provides:
Sec. 15. Search, Seizure and Examination of Computer
Data. — Where a search and seizure warrant is
properly issued, the law enforcement authorities shall
likewise have the following powers and duties.
Within the time period specified in the warrant, to
conduct interception, as defined in this Act, and:
 (a) To secure a computer system or a computer data
storage medium;
(b) To make and retain a copy of those computer
data secured;
(c) To maintain the integrity of the relevant stored
computer data;
(d) To conduct forensic analysis or examination of
the computer data storage medium; and
(e) To render inaccessible or remove those
computer data in the accessed computer or
computer and communications network.
Pursuant thereof, the law enforcement authorities
may order any person who has knowledge about the
functioning of the computer system and the measures
to protect and preserve the computer data therein to
provide, as is reasonable, the necessary information, to
enable the undertaking of the search, seizure and
examination.
Law enforcement authorities may request for an
extension of time to complete the examination of the
computer data storage medium and to make a return
thereon but in no case for a period longer than thirty
(30) days from date of approval by the court.
Petitioners challenge Section 15 on the assumption
that it will supplant established search and seizure
procedures. On its face, however, Section 15 merely
enumerates the duties of law enforcement authorities
that would ensure the proper collection, preservation,
and use of computer system or data that have been
seized by virtue of a court warrant. The exercise of
these duties do not pose any threat on the rights of the
person from whom they were taken. Section 15 does
not appear to supersede existing search and seizure
rules but merely supplements them.
Section 17 of the Cybercrime Law
Section 17 provides:
Sec. 17. Destruction of Computer Data. — Upon
expiration of the periods as provided in Sections 13
and 15, service providers and law enforcement
authorities, as the case may be, shall immediately and
completely destroy the computer data subject of a
preservation and examination.
Section 17 would have the computer data, previous
subject of preservation or examination, destroyed or
deleted upon the lapse of the prescribed period. The
Solicitor General justifies this as necessary to clear up
the service provider’s storage systems and prevent
overload. It would also ensure that investigations are
quickly concluded.
Petitioners claim that such destruction of computer
data subject of previous preservation or examination
violates the user’s right against deprivation of property
without due process of law. But, as already stated, it is
unclear that the user has a demandable right to require
the service provider to have that copy of the data saved
indefinitely for him in its storage system. If he wanted
them preserved, he should have saved them in his
computer when he generated the data or received it.
He could also request the service provider for a copy
before it is deleted.
Section 19 of the Cybercrime Law
Section 19 empowers the Department of Justice to
restrict or block access to computer data:
Sec. 19. Restricting or Blocking Access to Computer
Data.— When a computer data is prima facie found to
be in violation of the provisions of this Act, the DOJ
shall issue an order to restrict or block access to such
computer data.
Petitioners contest Section 19 in that it stifles freedom
of expression and violates the right against
unreasonable searches and seizures. The Solicitor
General concedes that this provision may be
unconstitutional. But since laws enjoy a presumption
of constitutionality, the Court must satisfy itself that
Section 19 indeed violates the freedom and right
mentioned.
Computer data99 may refer to entire programs or lines
of code, including malware, as well as files that contain
texts, images, audio, or video recordings. Without
having to go into a lengthy discussion of property
rights in the digital space, it is indisputable that
computer data, produced or created by their writers or
authors may constitute personal property.
Consequently, they are protected from unreasonable
searches and seizures, whether while stored in their
personal computers or in the service provider’s
systems.
Section 2, Article III of the 1987 Constitution provides
that the right to be secure in one’s papers and effects
against unreasonable searches and seizures of
whatever nature and for any purpose shall be
inviolable. Further, it states that no search warrant
shall issue except upon probable cause to be
determined personally by the judge. Here, the
Government, in effect, seizes and places the computer
data under its control and disposition without a
warrant. The Department of Justice order cannot
substitute for judicial search warrant.
The content of the computer data can also constitute
speech. In such a case, Section 19 operates as a
restriction on the freedom of expression over
cyberspace. Certainly not all forms of speech are
protected. Legislature may, within constitutional
bounds, declare certain kinds of expression as illegal.
But for an executive officer to seize content alleged to
be unprotected without any judicial warrant, it is not
enough for him to be of the opinion that such content
violates some law, for to do so would make him judge,
jury, and executioner all rolled into one.100
Not only does Section 19 preclude any judicial
intervention, but it also disregards jurisprudential
guidelines established to determine the validity of
restrictions on speech. Restraints on free speech are
generally evaluated on one of or a combination of
three tests: the dangerous tendency doctrine, the
balancing of interest test, and the clear and present
danger rule.101 Section 19, however, merely requires
that the data to be blocked be found prima facie in
violation of any provision of the cybercrime law.
Taking Section 6 into consideration, this can actually
be made to apply in relation to any penal provision. It
does not take into consideration any of the three tests
mentioned above.
The Court is therefore compelled to strike down
Section 19 for being violative of the constitutional
guarantees to freedom of expression and against
unreasonable searches and seizures.
Section 20 of the Cybercrime Law
Section 20 provides:
Sec. 20. Noncompliance. — Failure to comply with the
provisions of Chapter IV hereof specifically the orders
from law enforcement authorities shall be punished as
a violation of Presidential Decree No. 1829 with
imprisonment of prision correctional in its maximum
period or a fine of One hundred thousand pesos
(Php100,000.00) or both, for each and every
noncompliance with an order issued by law
enforcement authorities.
Petitioners challenge Section 20, alleging that it is a
bill of attainder. The argument is that the mere failure
to comply constitutes a legislative finding of guilt,
without regard to situations where non-compliance
would be reasonable or valid.
But since the non-compliance would be punished as a
violation of Presidential Decree (P.D.) 1829,102 Section
20 necessarily incorporates elements of the offense
which are defined therein. If Congress had intended
for Section 20 to constitute an offense in and of itself,
it would not have had to make reference to any other
statue or provision.
P.D. 1829 states:
Section 1. The penalty of prision correccional in its
maximum period, or a fine ranging from 1,000 to 6,000
pesos, or both, shall be imposed upon any person who
knowingly or willfully obstructs, impedes, frustrates
or delays the apprehension of suspects and the
investigation and prosecution of criminal cases by
committing any of the following acts:
x x x.
Thus, the act of non-compliance, for it to be
punishable, must still be done "knowingly or
willfully." There must still be a judicial determination
of guilt, during which, as the Solicitor General
assumes, defense and justifications for non-
compliance may be raised. Thus, Section 20 is valid
insofar as it applies to the provisions of Chapter IV
which are not struck down by the Court.
Sections 24 and 26(a) of the Cybercrime Law
Sections 24 and 26(a) provide:
Sec. 24. Cybercrime Investigation and Coordinating
Center.– There is hereby created, within thirty (30)
days from the effectivity of this Act, an inter-agency
body to be known as the Cybercrime Investigation and
Coordinating Center (CICC), under the administrative
supervision of the Office of the President, for policy
coordination among concerned agencies and for the
formulation and enforcement of the national
cybersecurity plan.
Sec. 26. Powers and Functions.– The CICC shall have
the following powers and functions:
(a) To formulate a national cybersecurity plan and
extend immediate assistance of real time commission
of cybercrime offenses through a computer emergency
response team (CERT); x x x.
Petitioners mainly contend that Congress invalidly
delegated its power when it gave the Cybercrime
Investigation and Coordinating Center (CICC) the
power to formulate a national cybersecurity plan
without any sufficient standards or parameters for it to
follow.
In order to determine whether there is undue
delegation of legislative power, the Court has adopted
two tests: the completeness test and the sufficient
standard test. Under the first test, the law must be
complete in all its terms and conditions when it leaves
the legislature such that when it reaches the delegate,
the only thing he will have to do is to enforce
it.1avvphi1 The second test mandates adequate
guidelines or limitations in the law to determine the
boundaries of the delegate’s authority and prevent the
delegation from running riot.103
Here, the cybercrime law is complete in itself when it
directed the CICC to formulate and implement a
national cybersecurity plan. Also, contrary to the
position of the petitioners, the law gave sufficient
standards for the CICC to follow when it provided a
definition of cybersecurity.
Cybersecurity refers to the collection of tools, policies,
risk management approaches, actions, training, best
practices, assurance and technologies that can be used
to protect cyber environment and organization and
user’s assets.104 This definition serves as the parameters
within which CICC should work in formulating the
cybersecurity plan.
Further, the formulation of the cybersecurity plan is
consistent with the policy of the law to "prevent and
combat such [cyber] offenses by facilitating their
detection, investigation, and prosecution at both the
domestic and international levels, and by providing
arrangements for fast and reliable international
cooperation."105 This policy is clearly adopted in the
interest of law and order, which has been considered
as sufficient standard.106 Hence, Sections 24 and 26(a)
are likewise valid.
WHEREFORE, the Court DECLARES:
1. VOID for being UNCONSTITUTIONAL:
 a. Section 4(c)(3) of Republic Act 10175 that
penalizes posting of unsolicited commercial
communications;
b. Section 12 that authorizes the collection or
recording of traffic data in real-time; and
c. Section 19 of the same Act that authorizes the
Department of Justice to restrict or block access to
suspected Computer Data.
2. VALID and CONSTITUTIONAL:
a. Section 4(a)(1) that penalizes accessing a
computer system without right;
b. Section 4(a)(3) that penalizes data interference,
including transmission of viruses;
c. Section 4(a)(6) that penalizes cyber-squatting or
acquiring domain name over the internet in bad
faith to the prejudice of others;
d. Section 4(b)(3) that penalizes identity theft or
the use or misuse of identifying information
belonging to another;
e. Section 4(c)(1) that penalizes cybersex or the
lascivious exhibition of sexual organs or sexual
activity for favor or consideration;
f. Section 4(c)(2) that penalizes the production of
child pornography;
g. Section 6 that imposes penalties one degree
higher when crimes defined under the Revised
Penal Code are committed with the use of
information and communications technologies;
h. Section 8 that prescribes the penalties for
cybercrimes;
i. Section 13 that permits law enforcement
authorities to require service providers to preserve
traffic data and subscriber information as well as
specified content data for six months;
j. Section 14 that authorizes the disclosure of
computer data under a court-issued warrant;
k. Section 15 that authorizes the search, seizure,
and examination of computer data under a court-
issued warrant;
 l. Section 17 that authorizes the destruction of
previously preserved computer data after the
expiration of the prescribed holding periods;
m. Section 20 that penalizes obstruction of justice
in relation to cybercrime investigations;
n. Section 24 that establishes a Cybercrime
Investigation and Coordinating Center (CICC);
o. Section 26(a) that defines the CICC’s Powers and
Functions; and
p. Articles 353, 354, 361, and 362 of the Revised
Penal Code that penalizes libel.
Further, the Court DECLARES:
1. Section 4(c)(4) that penalizes online libel as
VALID and CONSTITUTIONAL with respect to
the original author of the post; but VOID and
UNCONSTITUTIONAL with respect to others
who simply receive the post and react to it; and
2. Section 5 that penalizes aiding or abetting and
attempt in the commission of cybercrimes as VA L
 I D and CONSTITUTIONAL only in relation to
Section 4(a)(1) on Illegal Access, Section 4(a)(2) on
Illegal Interception, Section 4(a)(3) on Data
Interference, Section 4(a)(4) on System
Interference, Section 4(a)(5) on Misuse of Devices,
Section 4(a)(6) on Cyber-squatting, Section 4(b)(1) on
Computer-related Forgery, Section 4(b)(2) on
Computer-related Fraud, Section 4(b)(3) on
Computer-related Identity Theft, and Section 4(c)(1)
on Cybersex; but VOID and UNCONSTITUTIONAL
with respect to Sections 4(c)(2) on Child Pornography,
4(c)(3) on Unsolicited Commercial Communications,
and 4(c)(4) on online Libel.1âwphi1
Lastly, the Court RESOLVES to LEAVE THE
DETERMINATION of the correct application of
Section 7 that authorizes prosecution of the offender
under both the Revised Penal Code and Republic Act
10175 to actual cases, WITH THE EXCEPTION of the
crimes of:
1. Online libel as to which, charging the offender
under both Section 4(c)(4) of Republic Act 10175
 and Article 353 of the Revised Penal Code
constitutes a violation of the proscription against
double jeopardy; as well as
2. Child pornography committed online as to
which, charging the offender under both Section
4(c)(2) of Republic Act 10175 and Republic Act
9775 or the Anti-Child Pornography Act of 2009
also constitutes a violation of the same
proscription, and, in respect to these, is VOID and
UNCONSTITUTIONAL.
SO ORDERED.
ROBERTO A. ABAD
Associate Justice
WE CONCUR:
See Concurring & Dissenting Opinion
MARIA LOURDES P. A. SERENO
Chief Justice

See Concurring & (no part due to prior

Dissenting Opinion case)
ANTONIO T. PRESBITERO J.
CARPIO VELASCO, JR.*
Associate Justice Associate Justice

TERESITA J. See Separate

LEONARDO-DE Concurring Opinion
CASTRO ARTURO D. BRION
Associate Justice Associate Justice

DIOSDADO M.
LUCAS P. BERSAMIN
PERALTA
Associate Justice
Associate Justice

MARIANO C. DEL MARTIN S.

CASTILLO VILLARAMA, JR.
Associate Justice Associate Justice

I join Justice Brion in

JOSE PORTUGAL all his positions
PEREZ JOSE CATRAL
Associate Justice MENDOZA
Associate Justice
 No Part
BIENVENIDO L.
ESTELA M. PERLAS-
REYES
BERNABE*
Associate Justice
Associate Justice

See separate dissenting and concurring opinion

MARVIC MARIO VICTOR F. LEONEN
Associate Justice
CERTIFICATION
Pursuant to Section 13, Article VIII of the
Constitution, it is hereby certified that the conclusions
in the above Decision had been reached in
consultation before the case was assigned to the writer
of the opinion of the Court.
MARIA LOURDES P.A. SERENO
Chief Justice
ILLEGAL USE OF ALIAS

43. Revelina Limson vs. Eugenio Juan Gonzalez, GR No.

162205, Mar. 31, 2014

FIRST DIVISION
March 31, 2014
G.R. No. 162205
REVELINA LIMSON, Petitioner,
vs.
EUGENIO JUAN GONZALEZ, Respondent.
DECISION
BERSAMIN, J.:
Under review is the decision promulgated on July 31,
2003,1 whereby the Court of Appeals dismissed
petitioner Revelina Limson' s petition for certiorari
assailing the denial by the Secretary of Justice of her
petition for review vis-a-vis the adverse resolutions of
the Office of the City Prosecutor of Mandaluyong City
(OCP) of her charges for falsification and illegal use of
aliases against respondent Eugenio Juan Gonzalez.
Antecedents
The antecedents as found by the CA are as follows:
On or about December 1, 1997, Limson filed a criminal
charge against Gonzalez for falsification, before the
Prosecutor's Office of Mandaluyong City.
Vice Associate Justice Bienvenido L. Reyes, who
penned the decision under review, pursuant to the
raffle of May 8, 2013.
The charge for [sic] falsification of [sic] Limson is
based on Limson’s assertion that in the records of the
Professional Regulatory Commission (PRC), a certain
‘EUGENIO GONZALEZ’ is registered as an architect
and that Gonzalez, who uses, among others, the name
‘EUGENIO JUAN GONZALEZ’, and who pretends to
be said architect. Registered [sic] with the PRC, is an
impostor and therefore, guilty [sic] of falsification x x
x."
Gonzalez filed his Counter-Affidavit, wherein he
explained in detail that his full name is EUGENIO
(first given name) JUAN (second given name)
GONZALEZ (father’s family name) y REGALADO
(mother’s family name). He alleges that in his youth,
while he was still in grade school and high school, he
used the name EUGENIO GONZALEZ y REGALADO
and/or EUGENIO GONZALEZ and that thereafter, he
transferred to the University of Santo Tomas and
therein took up architecture and that upon
commencement of his professional practice in 1943, he
made use of his second name, JUAN. Consequently, in
his professional practice, he has identified himself as
much as possible as Arch. Eugenio Juan Gonzalez,
because the surname GONZALEZ was and is still, a
very common surname throughout the Philippines
and he wanted to distinguish himself with his second
given name, JUAN, after his first given name,
EUGENIO. Gonzalez supposed [sic] his allegations
with various supporting documents x x x.
After receiving pertinent Affidavits and evidentiary
documents from Limson and Gonzalez, respectively,
the Prosecutor dismissed the criminal charge against
Gonzalez, finding that indeed EUGENIO JUAN R.
GONZALES [sic] is the architect registered in the
PRC. Said Resolution was issued on March 30, 1998 x
x x.
Limson elevated the Resolution of the Prosecutor x x
x to the Secretary of Justice. Before the Secretary of
Justice, she utilized the basic arguments she had raised
before the Prosecutor’s Office, with slight variations,
in assailing said adverse Resolution of the Prosecutor.
After Opposition by Gonzalez, the Secretary of Justice
dismissed the appeal of Limson. The Secretary of
Justice affirmed and even expanded the findings of the
Prosecutor x x x.
Not content with said Resolution of the Secretary of
Justice, Limson filed a motion for reconsideration
therefrom; which, after Opposition by Gonzalez, was
dismissed by the Secretary of Justice, on September 15,
2000 x x x. Said dismissal was with finality.
Notwithstanding the foregoing, on or about
September 25, 2000, Limson filed a new letter
complaint against Gonzalez, with the Secretary of
Justice. She alleged the same basic facts, evidence, and
charges, as already resolved by the Prosecutor and
affirmed with finality, by the Secretary of Justice; but
adding the accusation that because Gonzalez used
various combinations of his name, in different
signature, on the [sic] different occasions, Gonzalez
had also violated Republic Act No. 6085 (the Anti-
Alias Law). Limson, in said letter complaint of
September 25, 2000, suppressed from the Secretary of
Justice, the extant before- mentioned Resolutions,
already decreed and adverse to her.
The Secretary of Justice referred this letter complaint
of Limson x x x to the Prosecutor’s Office of
Mandaluyong City for investigation.
This new investigation was docketed as I.S. No. 01-
44001-B and assigned to Honorable Susante J. Tobias x
x x.
After submission of Affidavits, Counter-Affidavits and
other pertinent pleadings, and evidences [sic], by the
respective parties, before the Prosecutor, the
Prosecutor rendered a Resolution, dismissing the new
complaint x x x which Resolution reads as follows:
‘After a careful evaluation of the letter complaint of
Revelina Limson dated September 25, 2000 addressed
to the Secretary of Justice and endorsed to this Office
x x x and the evidence adduced by the contending
parties, we find the issues raised in the aforesaid letter
to be a rehashed (sic) of a previous complaint filed by
the same complainant which has already been long
resolved with finality by this Office and the
Department of Justice more particularly under I.S. No.
97-11929.
WHEREFORE, it is most respectfully recommended
that the instant case be considered closed and
dismissed.’
Not content with said Resolution x x x, Limson filed a
motion for reconsideration; [sic]which was again
opposed by Gonzalez and which was denied by the
Prosecutor x x x.
Not agreeable to said Resolution x x x, Limson filed a
Petition for Review with the Secretary of Justice x x x,
to which x x x Gonzalez filed an Answer/Opposition x
x x.
The Secretary of Justice denied said Petition for
Review of Limson, on April 3, 2002 x x x as follows:
‘Section 12, in relation to Section 7, of Department
Circular No. 70 dated July 3, 2000, provides that the
Secretary of Justice may, motu propio, dismiss outright
the petition if there is no showing of any reversible
error in the assailed resolution or when issued [sic]
raised therein are too unsubstantial to require
consideration. We carefully examined the petition and
its attachments and we found no such error committed
by the prosecutor that would justify the reversal of the
assailed resolution which is in accord with the
evidence and law on the matter.
Moreover, there was no showing that a copy of the
petition was furnished the Prosecution Office
concerned pursuant to Section 5 of said Department
Circular.2
Although Limson sought the reconsideration of the
adverse resolution of April 3, 2002, the Secretary of
Justice denied her motion for reconsideration on
October 15, 2002.
Decision of the CA
Limson assailed on certiorari the adverse resolutions of
the Secretary of Justice in the CA, claiming that the
Secretary of Justice had thereby committed grave
abuse of discretion amounting to lack or excess of
jurisdiction for misappreciating her evidence
establishing her charges of falsification and violation
of the Anti-Alias Law against respondent.
On July 31, 2003, the CA promulgated its assailed
decision dismissing the petition for certiorari,
disposing as follows:
WHEREFORE, in light of the foregoing discussions,
the instant Petition is perforce DENIED. Accordingly,
the Resolutions subject of this petition are
AFFIRMED.
SO ORDERED.3
On January 30, 2004, the CA denied Limson’s motion
for reconsideration.
Issues
In her petition for review, Limson avers the following
errors, namely:
I
THE FINDINGS OF FACT OF THE HONORABLE
COURT OF APPEALS DO NOT CONFORM TO THE
EVIDENCE ON RECORD. MOREOVER, THERE
WAS A MISAPPRECIATION AND/OR
MISAPPREHENSION OF FACTS AND THE
HONORABLE COURT FAILED TO NOTICE
CERTAIN RELEVANT POINTS WHICH IF
CONSIDERED WOULD JUSTIFY A DIFFERENT
CONCLUSION
II
THE CONCLUSION OF THE COURT OF APPEALS
IS A FINDING BASED ON SPECULATION AND/OR
SURMISE AND THE INFERENCES MADE WERE
MANIFESTLY MISTAKEN.4
Limson insists that the names "Eugenio Gonzalez" and
"Eugenio Juan Gonzalez y Regalado" did not refer to
one and the same individual; and that respondent was
not a registered architect contrary to his claim.
According to her, there were material discrepancies
between the graduation photograph of respondent
taken in 1941 when he earned his degree in
Architecture from the University of Sto. Tomas,
Manila,5 and another photograph of him taken for his
driver’s license in 1996,6 arguing that the person in the
latter photograph was not the same individual
depicted in the 1941 photograph. She submits
documents showing that respondent used aliases from
birth, and passed himself off as such persons when in
fact he was not. She prays that the decision of the CA
be set aside, and that the proper criminal cases for
falsification of public document and illegal use of alias
be filed against respondent
In his comment,7 respondent counters that the
petition for review should be denied due course for
presenting only factual issues; that the factual findings
of the OCP, the Secretary of Justice, and the CA should
remain undisturbed; that he did not commit any
falsification; that he did not use any aliases; that his
use of conflicting names was the product of erroneous
entry, inadvertence, and innocent mistake on the part
of other people; that Limson was motivated by malice
and ill will, and her charges were the product of
prevarication; and that he was a distinguished
architect and a respected member of the community
and society.
Ruling of the Court
The appeal has no merit.
To start with, the petition for review of Limson
projects issues of fact. It urges the Court to undo the
findings of fact of the OCP, the Secretary of Justice and
the CA on the basis of the documents submitted with
her petition. But the Court is not a trier of facts, and
cannot analyze and weigh evidence. Indeed, Section 1
of Rule 45, Rules of Court explicitly requires the
petition for review on certiorari to raise only questions
of law, which must be distinctly set forth.
Accordingly, the petition for review of Limson is
outrightly rejected for this reason.
Secondly, Limson appears to stress that the CA erred
in concluding that the Secretary of Justice did not
commit grave abuse of discretion in the appreciation
of the evidence submitted to the OCP. She would now
have us reverse the CA.
We cannot reverse the CA. We find that the
conclusion of the CA about the Secretary of Justice not
committing grave abuse of discretion was fully
warranted. Based on the antecedents earlier rendered
here, Limson did not persuasively demonstrate to the
CA how the Secretary of Justice had been gravely
wrong in upholding the dismissal by the OCP of her
charges against respondent. In contrast, the assailed
resolutions of the Secretary of Justice were quite
exhaustive in their exposition of the reasons for the
dismissal of the charges. And, even assuming that the
Secretary of Justice thereby erred, she should have
shown to the CA that either arbitrariness or
capriciousness or whimsicality had tainted the error.
Yet, she tendered no such showing. She should be
reminded, indeed, that grave abuse of discretion
meant either that the judicial or quasi-judicial power
was exercised by the Secretary of Justice in an
arbitrary or despotic manner by reason of passion or
personal hostility, or that the Secretary of Justice
evaded a positive duty, or virtually refused to perform
the duty enjoined or to act in contemplation of law,
such as when the Secretary of Justice, while exercising
judicial or quasi-judicial powers, acted in a capricious
or whimsical manner as to be equivalent to lack of
jurisdiction.8
Thirdly, the discrepancy between photographs
supposedly taken in 1941 and in 1996 of respondent
did not support Limson’s allegation of grave abuse of
discretion on the part of the Secretary of Justice. It is
really absurd to expect respondent, the individual
depicted on the photographs, to look the same after 55
long years.
And, fourthly, on the issue of the alleged use of illegal
aliases, the Court observes that respondent’s aliases
involved the names "Eugenio Gonzalez", "Eugenio
Gonzales", "Eugenio Juan Gonzalez", "Eugenio Juan
Gonzalez y Regalado", "Eugenio C.R. Gonzalez",
"Eugenio J. Gonzalez", and – per Limson – "Eugenio
Juan Robles Gonzalez." But these names contained his
true names, albeit at times joined with an erroneous
middle or second name, or a misspelled family name
in one instance. The records disclose that the
erroneous middle or second names, or the misspelling
of the family name resulted from error or inadvertence
left unchecked and unrectified over time. What is
significant, however, is that such names were not
fictitious names within the purview of the Anti-Alias
Law; and that such names were not different from
each other. Considering that he was not also shown to
have used the names for unscrupulous purposes, or to
deceive or confuse the public, the dismissal of the
charge against him was justified in fact and in law.
An alias is a name or names used by a person or
intended to be used by him publicly and habitually,
usually in business transactions, in addition to the real
name by which he was registered at birth or baptized
the first time, or to the substitute name authorized by
a competent authority; a man’s name is simply the
sound or sounds by which he is commonly designated
by his fellows and by which they distinguish him, but
sometimes a man is known by several different names
and these are known as aliases.9 An alias is thus a name
that is different from the individual’s true name, and
does not refer to a name that is not different from his
true name.
In Ursua v. Court of Appeals,10 the Court tendered an
enlightening discourse on the history and objective of
our law on aliases that is worth including here, viz:
Time and again we have decreed that statutes are to be
construed in the light of the purposes to be achieved
and the evils sought to be remedied.1âwphi1 Thus in
construing a statute the reason for its enactment
should be kept in mind and the statute should be
construed with reference to the intended scope and
purpose. The court may consider the spirit and reason
of the statute, where a literal meaning would lead to
absurdity, contradiction, injustice, or would defeat the
clear purpose of the lawmakers.
For a clear understanding of the purpose of C.A. No.
142 as amended, which was allegedly violated by
petitioner, and the surrounding circumstances under
which the law was enacted, the pertinent provisions
thereof, its amendments and related statutes are herein
cited. C.A. No.142, which was approved on 7
November 1936, and before its amendment by R. A.
No. 6085, is entitled An Act to Regulate the Use of
Aliases. It provides as follows:
Section 1. Except as a pseudonym for literary purposes,
no person shall use any name different from the one
with which he was christened or by which he has been
known since his childhood, or such substitute name as
may have been authorized by a competent court. The
name shall comprise the patronymic name and one or
two surnames.
Section 2. Any person desiring to use an alias or aliases
shall apply for authority therefor in proceedings like
those legally provided to obtain judicial authority for
a change of name. Separate proceedings shall be had
for each alias, and each new petition shall set forth the
original name and the alias or aliases for the use of
which judicial authority has been obtained, specifying
the proceedings and the date on which such authority
was granted. Judicial authorities for the use of aliases
shall be recorded in the proper civil register x x x.
The above law was subsequently amended by R. A. No.
6085, approved on 4 August 1969. As amended, C.A.
No. 142 now reads:
Section 1. Except as a pseudonym solely for literary,
cinema, television, radio or other entertainment
purposes and in athletic events where the use of
pseudonym is a normally accepted practice, no person
shall use any name different from the one with which
he was registered at birth in the office of the local civil
registry or with which he was baptized for the first
time, or in case of an alien, with which he was
registered in the bureau of immigration upon entry; or
such substitute name as may have been authorized by
a competent court: Provided, That persons whose
births have not been registered in any local civil
registry and who have not been baptized, have one
year from the approval of this act within which to
register their names in the civil registry of their
residence. The name shall comprise the patronymic
name and one or two surnames.
Sec. 2. Any person desiring to use an alias shall apply
for authority therefor in proceedings like those legally
provided to obtain judicial authority for a change of
name and no person shall be allowed to secure such
judicial authority for more than one alias. The petition
for an alias shall set forth the person’s baptismal and
family name and the name recorded in the civil
registry, if different, his immigrant’s name, if an alien,
and his pseudonym, if he has such names other than
his original or real name, specifying the reason or
reasons for the desired alias. The judicial authority for
the use of alias, the Christian name and the alien
immigrant’s name shall be recorded in the proper local
civil registry, and no person shall use any name or
names other than his original or real name unless the
same is or are duly recorded in the proper local civil
registry.
The objective and purpose of C. A. No. 142 have their
origin and basis in Act No. 3883, An Act to Regulate
the Use in Business Transactions of Names other than
True Names, Prescribing the Duties of the Director of
the Bureau of Commerce And Industry in its
Enforcement, Providing Penalties for Violations
thereof, and for other purposes, which was approved
on 14 November 1931 and amended by Act No. 4147,
approved on 28 November 1934. The pertinent
provisions of Act No. 3883 as amended follow –
Section 1. It shall be unlawful for any person to use or
sign, on any written or printed receipt including
receipt for tax or business or any written or printed
contract not verified by a notary public or on any
written or printed evidence of any agreement or
business transactions, any name used in connection
with his business other than his true name, or keep
conspicuously exhibited in plain view in or at the
place where his business is conducted, if he is engaged
in a business, any sign announcing a firm name or
business name or style without first registering such
other name, or such firm name, or business name or
style in the Bureau of Commerce together with his
true name and that of any other person having a joint
or common interest with him in such contract
agreement, business transaction, or business x x x.
For a bit of history, the enactment of C.A. No. 142 as
amended was made primarily to curb the common
practice among the Chinese of adopting scores of
different names and aliases which created tremendous
confusion in the field of trade. Such a practice almost
bordered on the crime of using fictitious names which
for obvious reasons could not be successfully
maintained against the Chinese who, rightly or
wrongly, claimed they possessed a thousand and one
names. CA. No. 142 thus penalized the act of using an
alias name, unless such alias was duly authorized by
proper judicial proceedings and recorded in the civil
register.
In Yu Kheng Chiau v. Republic the Court had occasion
to explain the meaning, concept and ill effects of the
use of an alias within the purview of C.A. No. 142
when we ruled –
There can hardly be any doubt that petitioner’s use of
alias 'Kheng Chiau Young' in addition to his real name
'Yu Cheng Chiau' would add to more
confusion.1âwphi1 That he is known in his business,
as manager of the Robert Reid, Inc., by the former
name, is not sufficient reason to allow him its use.
After all, petitioner admitted that he is known to his
associates by both names. In fact, the Anselmo
Trinidad, Inc., of which he is a customer, knows him
by his real name. Neither would the fact that he had
encountered certain difficulties in his transactions
with government offices which required him to
explain why he bore two names, justify the grant of
his petition, for petitioner could easily avoid said
difficulties by simply using and sticking only to his
real name 'Yu Cheng Chiau.'
The fact that petitioner intends to reside permanently
in the Philippines, as shown by his having filed a
petition for naturalization in Branch V of the
abovementioned court, argues the more against the
grant of his petition, because if naturalized as a
Filipino citizen, there would then be no necessity for
his further using said alias, as it would be contrary to
the usual Filipino way and practice of using only one
name in ordinary as well as business transactions. And,
as the lower court correctly observed, if he believes
(after he is naturalized) that it would be better for him
to write his name following the Occidental method,
'he can easily file a petition for change of name, so that
in lieu of the name 'Yu Kheng Chian,' he can,
abandoning the same, ask for authority to adopt the
name 'Kheng Chiau Young.' (Emphasis and
underscoring supplied)
WHEREFORE, the Court DENIES the petition for
review on certiorari; AFFIRMS the decision
promulgated on July 31, 2003; and ORDERS petitioner
to pay the costs of suit.
SO ORDERED.
LUCAS P. BERSAMIN
Associate Justice
WE CONCUR:
MARIA LOURDES P. A. SERENO
Chief Justice
 TERESITA J.
MARIANO C. DEL
LEONARDO-DE
CASTILLO*
CASTRO
Associate Justice
Associate Justice
MARTIN S. VILLARAMA, JR.
Associate Justice
CERTIFICATION
Pursuant to Section 13, Article VIII of the
Constitution, I certify that the conclusions in the
above Decision had been reached in consultation
before the case was assigned to the writer of the
opinion of the Court's Division
MARIA LOURDES P. A. SERENO
Chief Justice
RECKLESS IMPRUDENCE

44. Jason Ivler Y Aguilar vs. Hon. Ma. Rowena San

Pedro, et. al., GR No. 172716, Nov. 17, 2010

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 172716 November 17, 2010
JASON IVLER y AGUILAR, Petitioner,
vs.
HON. MARIA ROWENA MODESTO-SAN PEDRO,
Judge of the Metropolitan Trial Court, Branch 71, Pasig
City, and EVANGELINE PONCE, Respondents.
DECISION
CARPIO, J.:
The Case
The petition seeks the review1 of the Orders2 of the
Regional Trial Court of Pasig City affirming sub-
silencio a lower court’s ruling finding inapplicable the
Double Jeopardy Clause to bar a second prosecution
for Reckless Imprudence Resulting in Homicide and
Damage to Property. This, despite the accused’s
previous conviction for Reckless Imprudence
Resulting in Slight Physical Injuries arising from the
same incident grounding the second prosecution.
The Facts
Following a vehicular collision in August 2004,
petitioner Jason Ivler (petitioner) was charged before
the Metropolitan Trial Court of Pasig City, Branch 71
(MeTC), with two separate offenses: (1) Reckless
Imprudence Resulting in Slight Physical Injuries
(Criminal Case No. 82367) for injuries sustained by
respondent Evangeline L. Ponce (respondent Ponce);
and (2) Reckless Imprudence Resulting in Homicide
and Damage to Property (Criminal Case No. 82366) for
the death of respondent Ponce’s husband Nestor C.
Ponce and damage to the spouses Ponce’s vehicle.
Petitioner posted bail for his temporary release in both
cases.
On 7 September 2004, petitioner pleaded guilty to the
charge in Criminal Case No. 82367 and was meted out
the penalty of public censure. Invoking this
conviction, petitioner moved to quash the Information
in Criminal Case No. 82366 for placing him in
jeopardy of second punishment for the same offense of
reckless imprudence.
The MeTC refused quashal, finding no identity of
offenses in the two cases.3
After unsuccessfully seeking reconsideration,
petitioner elevated the matter to the Regional Trial
Court of Pasig City, Branch 157 (RTC), in a petition
for certiorari (S.C.A. No. 2803). Meanwhile, petitioner
sought from the MeTC the suspension of proceedings
in Criminal Case No. 82366, including the
arraignment on 17 May 2005, invoking S.C.A. No.
2803 as a prejudicial question. Without acting on
petitioner’s motion, the MeTC proceeded with the
arraignment and, because of petitioner’s absence,
cancelled his bail and ordered his arrest.4 Seven days
later, the MeTC issued a resolution denying
petitioner’s motion to suspend proceedings and
postponing his arraignment until after his
arrest.5 Petitioner sought reconsideration but as of the
filing of this petition, the motion remained
unresolved.
Relying on the arrest order against petitioner,
respondent Ponce sought in the RTC the dismissal of
S.C.A. No. 2803 for petitioner’s loss of standing to
maintain the suit. Petitioner contested the motion.
The Ruling of the Trial Court
In an Order dated 2 February 2006, the RTC dismissed
S.C.A. No. 2803, narrowly grounding its ruling on
petitioner’s forfeiture of standing to maintain S.C.A.
No. 2803 arising from the MeTC’s order to arrest
petitioner for his non-appearance at the arraignment
in Criminal Case No. 82366. Thus, without reaching
the merits of S.C.A. No. 2803, the RTC effectively
affirmed the MeTC. Petitioner sought reconsideration
but this proved unavailing.6
Hence, this petition.
Petitioner denies absconding. He explains that his
petition in S.C.A. No. 2803 constrained him to forego
participation in the proceedings in Criminal Case No.
82366. Petitioner distinguishes his case from the line
of jurisprudence sanctioning dismissal of appeals for
absconding appellants because his appeal before the
RTC was a special civil action seeking a pre-trial relief,
not a post-trial appeal of a judgment of conviction.7
Petitioner laments the RTC’s failure to reach the
merits of his petition in S.C.A. 2803. Invoking
jurisprudence, petitioner argues that his constitutional
right not to be placed twice in jeopardy of punishment
for the same offense bars his prosecution in Criminal
Case No. 82366, having been previously convicted in
Criminal Case No. 82367 for the same offense of
reckless imprudence charged in Criminal Case No.
82366. Petitioner submits that the multiple
consequences of such crime are material only to
determine his penalty.
Respondent Ponce finds no reason for the Court to
disturb the RTC’s decision forfeiting petitioner’s
standing to maintain his petition in S.C.A. 2803. On
the merits, respondent Ponce calls the Court’s
attention to jurisprudence holding that light offenses
(e.g. slight physical injuries) cannot be complexed
under Article 48 of the Revised Penal Code with grave
or less grave felonies (e.g. homicide). Hence, the
prosecution was obliged to separate the charge in
Criminal Case No. 82366 for the slight physical
injuries from Criminal Case No. 82367 for the
homicide and damage to property.
In the Resolution of 6 June 2007, we granted the Office
of the Solicitor General’s motion not to file a comment
to the petition as the public respondent judge is merely
a nominal party and private respondent is represented
by counsel.
The Issues
Two questions are presented for resolution: (1)
whether petitioner forfeited his standing to seek relief
in S.C.A. 2803 when the MeTC ordered his arrest
following his non-appearance at the arraignment in
Criminal Case No. 82366; and (2) if in the negative,
whether petitioner’s constitutional right under the
Double Jeopardy Clause bars further proceedings in
Criminal Case No. 82366.
The Ruling of the Court
We hold that (1) petitioner’s non-appearance at the
arraignment in Criminal Case No. 82366 did not divest
him of personality to maintain the petition in S.C.A.
2803; and (2) the protection afforded by the
Constitution shielding petitioner from prosecutions
placing him in jeopardy of second punishment for the
same offense bars further proceedings in Criminal
Case No. 82366.
Petitioner’s Non-appearance at the Arraignment in
Criminal Case No. 82366 did not Divest him of
Standing
to Maintain the Petition in S.C.A. 2803
Dismissals of appeals grounded on the appellant’s
escape from custody or violation of the terms of his
bail bond are governed by the second paragraph of
Section 8, Rule 124,8 in relation to Section 1, Rule 125,
of the Revised Rules on Criminal Procedure
authorizing this Court or the Court of Appeals to "also,
upon motion of the appellee or motu proprio, dismiss
the appeal if the appellant escapes from prison or
confinement, jumps bail or flees to a foreign country
during the pendency of the appeal." The "appeal"
contemplated in Section 8 of Rule 124 is a suit to
review judgments of convictions.
The RTC’s dismissal of petitioner’s special civil action
for certiorari to review a pre-arraignment ancillary
question on the applicability of the Due Process Clause
to bar proceedings in Criminal Case No. 82366 finds
no basis under procedural rules and jurisprudence.
The RTC’s reliance on People v. Esparas9 undercuts
the cogency of its ruling because Esparas stands for a
proposition contrary to the RTC’s ruling. There, the
Court granted review to an appeal by an accused who
was sentenced to death for importing prohibited drugs
even though she jumped bail pending trial and was
thus tried and convicted in absentia. The Court in
Esparas treated the mandatory review of death
sentences under Republic Act No. 7659 as an
exception to Section 8 of Rule 124.10
The mischief in the RTC’s treatment of petitioner’s
non-appearance at his arraignment in Criminal Case
No. 82366 as proof of his loss of standing becomes
more evident when one considers the Rules of Court’s
treatment of a defendant who absents himself from
post-arraignment hearings. Under Section 21, Rule
11411 of the Revised Rules of Criminal Procedure, the
defendant’s absence merely renders his bondsman
potentially liable on its bond (subject to cancellation
should the bondsman fail to produce the accused
within 30 days); the defendant retains his standing
and, should he fail to surrender, will be tried in
absentia and could be convicted or acquitted. Indeed,
the 30-day period granted to the bondsman to produce
the accused underscores the fact that mere non-
appearance does not ipso facto convert the accused’s
status to that of a fugitive without standing.
Further, the RTC’s observation that petitioner
provided "no explanation why he failed to attend the
scheduled proceeding"12 at the MeTC is belied by the
records. Days before the arraignment, petitioner
sought the suspension of the MeTC’s proceedings in
Criminal Case No. 82366 in light of his petition with
the RTC in S.C.A. No. 2803. Following the MeTC’s
refusal to defer arraignment (the order for which was
released days after the MeTC ordered petitioner’s
arrest), petitioner sought reconsideration. His motion
remained unresolved as of the filing of this petition.
Petitioner’s Conviction in Criminal Case No. 82367
Bars his Prosecution in Criminal Case No. 82366
The accused’s negative constitutional right not to be
"twice put in jeopardy of punishment for the same
offense"13protects him from, among others, post-
conviction prosecution for the same offense, with the
prior verdict rendered by a court of competent
jurisdiction upon a valid information.14 It is not
disputed that petitioner’s conviction in Criminal Case
No. 82367 was rendered by a court of competent
jurisdiction upon a valid charge. Thus, the case turns
on the question whether Criminal Case No. 82366 and
Criminal Case No. 82367 involve the "same offense."
Petitioner adopts the affirmative view, submitting that
the two cases concern the same offense of reckless
imprudence. The MeTC ruled otherwise, finding that
Reckless Imprudence Resulting in Slight Physical
Injuries is an entirely separate offense from Reckless
Imprudence Resulting in Homicide and Damage to
Property "as the [latter] requires proof of an additional
fact which the other does not."15
We find for petitioner.
Reckless Imprudence is a Single Crime,
its Consequences on Persons and
Property are Material Only to Determine
the Penalty
The two charges against petitioner, arising from the
same facts, were prosecuted under the same provision
of the Revised Penal Code, as amended, namely,
Article 365 defining and penalizing quasi-offenses.
The text of the provision reads:
Imprudence and negligence. — Any person who, by
reckless imprudence, shall commit any act which, had
it been intentional, would constitute a grave felony,
shall suffer the penalty of arresto mayor in its
maximum period to prision correccional in its medium
period; if it would have constituted a less grave felony,
the penalty of arresto mayor in its minimum and
medium periods shall be imposed; if it would have
constituted a light felony, the penalty of arresto menor
in its maximum period shall be imposed.
Any person who, by simple imprudence or negligence,
shall commit an act which would otherwise constitute
a grave felony, shall suffer the penalty of arresto mayor
in its medium and maximum periods; if it would have
constituted a less serious felony, the penalty of arresto
mayor in its minimum period shall be imposed.
When the execution of the act covered by this article
shall have only resulted in damage to the property of
another, the offender shall be punished by a fine
ranging from an amount equal to the value of said
damages to three times such value, but which shall in
no case be less than twenty-five pesos.
A fine not exceeding two hundred pesos and censure
shall be imposed upon any person who, by simple
imprudence or negligence, shall cause some wrong
which, if done maliciously, would have constituted a
light felony.
In the imposition of these penalties, the court shall
exercise their sound discretion, without regard to the
rules prescribed in Article sixty-four.
The provisions contained in this article shall not be
applicable:
1. When the penalty provided for the offense is
equal to or lower than those provided in the first
two paragraphs of this article, in which case the
court shall impose the penalty next lower in degree
than that which should be imposed in the period
which they may deem proper to apply.
2. When, by imprudence or negligence and with
violation of the Automobile Law, to death of a
person shall be caused, in which case the
defendant shall be punished by prision
correccional in its medium and maximum periods.
Reckless imprudence consists in voluntary, but
without malice, doing or failing to do an act from
which material damage results by reason of
inexcusable lack of precaution on the part of the
person performing or failing to perform such act,
taking into consideration his employment or
occupation, degree of intelligence, physical condition
and other circumstances regarding persons, time and
place.
Simple imprudence consists in the lack of precaution
displayed in those cases in which the damage
impending to be caused is not immediate nor the
danger clearly manifest.
The penalty next higher in degree to those provided
for in this article shall be imposed upon the offender
who fails to lend on the spot to the injured parties such
help as may be in this hand to give.
Structurally, these nine paragraphs are collapsible into
four sub-groupings relating to (1) the penalties
attached to the quasi-offenses of "imprudence" and
"negligence" (paragraphs 1-2); (2) a modified penalty
scheme for either or both quasi-offenses (paragraphs
3-4, 6 and 9); (3) a generic rule for trial courts in
imposing penalties (paragraph 5); and (4) the
definition of "reckless imprudence" and "simple
imprudence" (paragraphs 7-8). Conceptually, quasi-
offenses penalize "the mental attitude or condition
behind the act, the dangerous recklessness, lack of care
or foresight, the imprudencia punible,"16 unlike willful
offenses which punish the intentional criminal act.
These structural and conceptual features of quasi-
offenses set them apart from the mass of intentional
crimes under the first 13 Titles of Book II of the
Revised Penal Code, as amended.
Indeed, the notion that quasi-offenses, whether
reckless or simple, are distinct species of crime,
separately defined and penalized under the framework
of our penal laws, is nothing new. As early as the
middle of the last century, we already sought to bring
clarity to this field by rejecting in Quizon v. Justice of
the Peace of Pampanga the proposition that "reckless
imprudence is not a crime in itself but simply a way of
committing it x x x"17 on three points of analysis: (1)
the object of punishment in quasi-crimes (as opposed
to intentional crimes); (2) the legislative intent to treat
quasi-crimes as distinct offenses (as opposed to
subsuming them under the mitigating circumstance of
minimal intent) and; (3) the different penalty
structures for quasi-crimes and intentional crimes:
The proposition (inferred from Art. 3 of the Revised
Penal Code) that "reckless imprudence" is not a crime
in itself but simply a way of committing it and merely
determines a lower degree of criminal liability is too
broad to deserve unqualified assent. There are crimes
that by their structure cannot be committed through
imprudence: murder, treason, robbery, malicious
mischief, etc. In truth, criminal negligence in our
Revised Penal Code is treated as a mere quasi offense,
and dealt with separately from willful offenses. It is
not a mere question of classification or terminology. In
intentional crimes, the act itself is punished; in
negligence or imprudence, what is principally
penalized is the mental attitude or condition behind
the act, the dangerous recklessness, lack of care or
foresight, the imprudencia punible. x x x x
Were criminal negligence but a modality in the
commission of felonies, operating only to reduce the
penalty therefor, then it would be absorbed in the
mitigating circumstances of Art. 13, specially the lack
of intent to commit so grave a wrong as the one
actually committed. Furthermore, the theory would
require that the corresponding penalty should be fixed
in proportion to the penalty prescribed for each crime
when committed willfully. For each penalty for the
willful offense, there would then be a corresponding
penalty for the negligent variety. But instead, our
Revised Penal Code (Art. 365) fixes the penalty for
reckless imprudence at arresto mayor maximum, to
prision correccional [medium], if the willful act would
constitute a grave felony, notwithstanding that the
penalty for the latter could range all the way from
prision mayor to death, according to the case. It can be
seen that the actual penalty for criminal negligence
bears no relation to the individual willful crime, but is
set in relation to a whole class, or series, of
crimes.18 (Emphasis supplied)
This explains why the technically correct way to
allege quasi-crimes is to state that their commission
results in damage, either to person or property.19
Accordingly, we found the Justice of the Peace in
Quizon without jurisdiction to hear a case for "Damage
to Property through Reckless Imprudence," its
jurisdiction being limited to trying charges for
Malicious Mischief, an intentional crime conceptually
incompatible with the element of imprudence
obtaining in quasi-crimes.
Quizon, rooted in Spanish law20 (the normative
ancestry of our present day penal code) and since
repeatedly reiterated,21 stands on solid conceptual
foundation. The contrary doctrinal pronouncement in
People v. Faller22 that "[r]eckless impudence is not a
crime in itself x x x [but] simply a way of committing
it x x x,"23 has long been abandoned when the Court
en banc promulgated Quizon in 1955 nearly two
decades after the Court decided Faller in 1939. Quizon
rejected Faller’s conceptualization of quasi-crimes by
holding that quasi-crimes under Article 365 are
distinct species of crimes and not merely methods of
committing crimes. Faller found expression in post-
Quizon jurisprudence24 only by dint of lingering
doctrinal confusion arising from an indiscriminate
fusion of criminal law rules defining Article 365
crimes and the complexing of intentional crimes under
Article 48 of the Revised Penal Code which, as will be
shown shortly, rests on erroneous conception of quasi-
crimes. Indeed, the Quizonian conception of quasi-
crimes undergirded a related branch of jurisprudence
applying the Double Jeopardy Clause to quasi-
offenses, barring second prosecutions for a quasi-
offense alleging one resulting act after a prior
conviction or acquittal of a quasi-offense alleging
another resulting act but arising from the same
reckless act or omission upon which the second
prosecution was based.
Prior Conviction or Acquittal of
Reckless Imprudence Bars
Subsequent Prosecution for the Same
Quasi-Offense
The doctrine that reckless imprudence under Article
365 is a single quasi-offense by itself and not merely a
means to commit other crimes such that conviction or
acquittal of such quasi-offense bars subsequent
prosecution for the same quasi-offense, regardless of
its various resulting acts, undergirded this Court’s
unbroken chain of jurisprudence on double jeopardy
as applied to Article 365 starting with People v.
Diaz,25 decided in 1954. There, a full Court, speaking
through Mr. Justice Montemayor, ordered the
dismissal of a case for "damage to property thru
reckless imprudence" because a prior case against the
same accused for "reckless driving," arising from the
same act upon which the first prosecution was based,
had been dismissed earlier. Since then, whenever the
same legal question was brought before the Court, that
is, whether prior conviction or acquittal of reckless
imprudence bars subsequent prosecution for the same
quasi-offense, regardless of the consequences alleged
for both charges, the Court unfailingly and
consistently answered in the affirmative in People v.
Belga26 (promulgated in 1957 by the Court en banc,
per Reyes, J.), Yap v. Lutero27 (promulgated in 1959,
unreported, per Concepcion, J.), People v.
Narvas28 (promulgated in 1960 by the Court en banc,
per Bengzon J.), People v. Silva29 (promulgated in 1962
by the Court en banc, per Paredes, J.), People v.
Macabuhay30 (promulgated in 1966 by the Court en
banc, per Makalintal, J.), People v.
Buan31 (promulgated in 1968 by the Court en banc, per
Reyes, J.B.L., acting C. J.), Buerano v. Court of
Appeals32 (promulgated in 1982 by the Court en banc,
per Relova, J.), and People v. City Court of
Manila33 (promulgated in 1983 by the First Division,
per Relova, J.). These cases uniformly barred the
second prosecutions as constitutionally impermissible
under the Double Jeopardy Clause.
The reason for this consistent stance of extending the
constitutional protection under the Double Jeopardy
Clause to quasi-offenses was best articulated by Mr.
Justice J.B.L. Reyes in Buan, where, in barring a
subsequent prosecution for "serious physical injuries
and damage to property thru reckless imprudence"
because of the accused’s prior acquittal of "slight
physical injuries thru reckless imprudence," with both
charges grounded on the same act, the Court
explained:34
Reason and precedent both coincide in that once
convicted or acquitted of a specific act of reckless
imprudence, the accused may not be prosecuted again
for that same act. For the essence of the quasi offense
of criminal negligence under article 365 of the Revised
Penal Code lies in the execution of an imprudent or
negligent act that, if intentionally done, would be
punishable as a felony. The law penalizes thus the
negligent or careless act, not the result thereof. The
gravity of the consequence is only taken into account
to determine the penalty, it does not qualify the
substance of the offense. And, as the careless act is
single, whether the injurious result should affect one
person or several persons, the offense (criminal
negligence) remains one and the same, and can not be
split into different crimes and prosecutions.35 x x x
(Emphasis supplied)
Evidently, the Diaz line of jurisprudence on double
jeopardy merely extended to its logical conclusion the
reasoning of Quizon.
There is in our jurisprudence only one ruling going
against this unbroken line of authority. Preceding
Diaz by more than a decade, El Pueblo de Filipinas v.
Estipona,36 decided by the pre-war colonial Court in
November 1940, allowed the subsequent prosecution
of an accused for reckless imprudence resulting in
damage to property despite his previous conviction for
multiple physical injuries arising from the same
reckless operation of a motor vehicle upon which the
second prosecution was based. Estipona’s
inconsistency with the post-war Diaz chain of
jurisprudence suffices to impliedly overrule it. At any
rate, all doubts on this matter were laid to rest in 1982
in Buerano.37 There, we reviewed the Court of
Appeals’ conviction of an accused for "damage to
property for reckless imprudence" despite his prior
conviction for "slight and less serious physical injuries
thru reckless imprudence," arising from the same act
upon which the second charge was based. The Court
of Appeals had relied on Estipona. We reversed on the
strength of Buan:38
Th[e] view of the Court of Appeals was inspired by the
ruling of this Court in the pre-war case of People vs.
Estipona decided on November 14, 1940. However, in
the case of People vs. Buan, 22 SCRA 1383 (March 29,
1968), this Court, speaking thru Justice J. B. L. Reyes,
held that –
Reason and precedent both coincide in that once
convicted or acquitted of a specific act of reckless
imprudence, the accused may not be prosecuted again
for that same act. For the essence of the quasi offense
of criminal negligence under Article 365 of the
Revised Penal Code lies in the execution of an
imprudent or negligent act that, if intentionally done,
would be punishable as a felony. The law penalizes
thus the negligent or careless act, not the result
thereof. The gravity of the consequence is only taken
into account to determine the penalty, it does not
qualify the substance of the offense. And, as the
careless act is single, whether the injurious result
should affect one person or several persons, the offense
(criminal negligence) remains one and the same, and
can not be split into different crimes and prosecutions.
xxxx
. . . the exoneration of this appellant, Jose Buan, by the
Justice of the Peace (now Municipal) Court of
Guiguinto, Bulacan, of the charge of slight physical
injuries through reckless imprudence, prevents his
being prosecuted for serious physical injuries through
reckless imprudence in the Court of First Instance of
the province, where both charges are derived from the
consequences of one and the same vehicular
accident, because the second accusation places the
appellant in second jeopardy for the same
offense.39 (Emphasis supplied)
Thus, for all intents and purposes, Buerano had
effectively overruled Estipona.
It is noteworthy that the Solicitor General in Buerano,
in a reversal of his earlier stance in Silva, joined causes
with the accused, a fact which did not escape the
Court’s attention:
Then Solicitor General, now Justice Felix V. Makasiar,
in his MANIFESTATION dated December 12, 1969
(page 82 of the Rollo) admits that the Court of Appeals
erred in not sustaining petitioner’s plea of double
jeopardy and submits that "its affirmatory decision
dated January 28, 1969, in Criminal Case No. 05123-
CR finding petitioner guilty of damage to property
through reckless imprudence should be set aside,
without costs." He stressed that "if double jeopardy
exists where the reckless act resulted into homicide
and physical injuries. then the same consequence must
perforce follow where the same reckless act caused
merely damage to property-not death-and physical
injuries. Verily, the value of a human life lost as a
result of a vehicular collision cannot be equated with
any amount of damages caused to a motors vehicle
arising from the same mishap."40 (Emphasis supplied)
Hence, we find merit in petitioner’s submission that
the lower courts erred in refusing to extend in his
favor the mantle of protection afforded by the Double
Jeopardy Clause. A more fitting jurisprudence could
not be tailored to petitioner’s case than People v.
Silva, 41 a Diaz progeny. There, the accused, who was
also involved in a vehicular collision, was charged in
two separate Informations with "Slight Physical
Injuries thru Reckless Imprudence" and "Homicide
with Serious Physical Injuries thru Reckless
Imprudence." Following his acquittal of the former,
the accused sought the quashal of the latter, invoking
the Double Jeopardy Clause. The trial court initially
denied relief, but, on reconsideration, found merit in
the accused’s claim and dismissed the second case. In
affirming the trial court, we quoted with approval its
analysis of the issue following Diaz and its progeny
People v. Belga:42
On June 26, 1959, the lower court reconsidered its
Order of May 2, 1959 and dismissed the case, holding:
—
[T]he Court believes that the case falls squarely within
the doctrine of double jeopardy enunciated in People
v. Belga, x x x In the case cited, Ciriaco Belga and Jose
Belga were charged in the Justice of the Peace Court
of Malilipot, Albay, with the crime of physical injuries
through reckless imprudence arising from a collision
between the two automobiles driven by them (Crim.
Case No. 88). Without the aforesaid complaint having
been dismissed or otherwise disposed of, two other
criminal complaints were filed in the same justice of
the peace court, in connection with the same collision
one for damage to property through reckless
imprudence (Crim. Case No. 95) signed by the owner
of one of the vehicles involved in the collision, and
another for multiple physical injuries through reckless
imprudence (Crim. Case No. 96) signed by the
passengers injured in the accident. Both of these two
complaints were filed against Jose Belga only. After
trial, both defendants were acquitted of the charge
against them in Crim. Case No. 88. Following his
acquittal, Jose Belga moved to quash the complaint for
multiple physical injuries through reckless
imprudence filed against him by the injured
passengers, contending that the case was just a
duplication of the one filed by the Chief of Police
wherein he had just been acquitted. The motion to
quash was denied and after trial Jose Belga was
convicted, whereupon he appealed to the Court of
First Instance of Albay. In the meantime, the case for
damage to property through reckless imprudence filed
by one of the owners of the vehicles involved in the
collision had been remanded to the Court of First
Instance of Albay after Jose Belga had waived the
second stage of the preliminary investigation. After
such remand, the Provincial Fiscal filed in the Court
of First Instance two informations against Jose Belga,
one for physical injuries through reckless imprudence,
and another for damage to property through reckless
imprudence. Both cases were dismissed by the Court
of First Instance, upon motion of the defendant Jose
Belga who alleged double jeopardy in a motion to
quash. On appeal by the Prov. Fiscal, the order of
dismissal was affirmed by the Supreme Court in the
following language: .
The question for determination is whether the
acquittal of Jose Belga in the case filed by the chief of
police constitutes a bar to his subsequent prosecution
for multiple physical injuries and damage to property
through reckless imprudence.
In the case of Peo[ple] v. F. Diaz, G. R. No. L-6518,
prom. March 30, 1954, the accused was charged in the
municipal court of Pasay City with reckless driving
under sec. 52 of the Revised Motor Vehicle Law, for
having driven an automobile in a ῾fast and reckless
manner ... thereby causing an accident.’ After the
accused had pleaded not guilty the case was dismissed
in that court ῾for failure of the Government to
prosecute’. But some time thereafter the city attorney
filed an information in the Court of First Instance of
Rizal, charging the same accused with damage to
property thru reckless imprudence. The amount of the
damage was alleged to be ₱249.50. Pleading double
jeopardy, the accused filed a motion, and on appeal by
the Government we affirmed the ruling. Among other
things we there said through Mr. Justice Montemayor
—
The next question to determine is the relation between
the first offense of violation of the Motor Vehicle Law
prosecuted before the Pasay City Municipal Court and
the offense of damage to property thru reckless
imprudence charged in the Rizal Court of First
Instance. One of the tests of double jeopardy is
whether or not the second offense charged necessarily
includes or is necessarily included in the offense
charged in the former complaint or information (Rule
113, Sec. 9). Another test is whether the evidence
which proves one would prove the other that is to say
whether the facts alleged in the first charge if proven,
would have been sufficient to support the second
charge and vice versa; or whether one crime is an
ingredient of the other. x x x
xxxx
The foregoing language of the Supreme Court also
disposes of the contention of the prosecuting attorney
that the charge for slight physical injuries through
reckless imprudence could not have been joined with
the charge for homicide with serious physical injuries
through reckless imprudence in this case, in view of
the provisions of Art. 48 of the Revised Penal Code, as
amended. The prosecution’s contention might be true.
But neither was the prosecution obliged to first
prosecute the accused for slight physical injuries
through reckless imprudence before pressing the more
serious charge of homicide with serious physical
injuries through reckless imprudence. Having first
prosecuted the defendant for the lesser offense in the
Justice of the Peace Court of Meycauayan, Bulacan,
which acquitted the defendant, the prosecuting
attorney is not now in a position to press in this case
the more serious charge of homicide with serious
physical injuries through reckless imprudence which
arose out of the same alleged reckless imprudence of
which the defendant have been previously cleared by
the inferior court.43
Significantly, the Solicitor General had urged us in
Silva to reexamine Belga (and hence, Diaz) "for the
purpose of delimiting or clarifying its
application."44 We declined the invitation, thus:
The State in its appeal claims that the lower court
erred in dismissing the case, on the ground of double
jeopardy, upon the basis of the acquittal of the accused
in the JP court for Slight Physical Injuries, thru
Reckless Imprudence. In the same breath said State,
thru the Solicitor General, admits that the facts of the
case at bar, fall squarely on the ruling of the Belga case
x x x, upon which the order of dismissal of the lower
court was anchored. The Solicitor General, however,
urges a re-examination of said ruling, upon certain
considerations for the purpose of delimiting or
clarifying its application. We find, nevertheless, that
further elucidation or disquisition on the ruling in the
Belga case, the facts of which are analogous or similar
to those in the present case, will yield no practical
advantage to the government. On one hand, there is
nothing which would warrant a delimitation or
clarification of the applicability of the Belga case. It
was clear. On the other, this Court has reiterated the
views expressed in the Belga case, in the identical case
of Yap v. Hon. Lutero, etc., L-12669, April 30,
1959.45 (Emphasis supplied)
Article 48 Does not Apply to Acts Penalized
Under Article 365 of the Revised Penal Code
The confusion bedeviling the question posed in this
petition, to which the MeTC succumbed, stems from
persistent but awkward attempts to harmonize
conceptually incompatible substantive and procedural
rules in criminal law, namely, Article 365 defining and
penalizing quasi-offenses and Article 48 on
complexing of crimes, both under the Revised Penal
Code. Article 48 is a procedural device allowing single
prosecution of multiple felonies falling under either of
two categories: (1) when a single act constitutes two or
more grave or less grave felonies (thus excluding from
its operation light felonies46); and (2) when an offense
is a necessary means for committing the other. The
legislature crafted this procedural tool to benefit the
accused who, in lieu of serving multiple penalties, will
only serve the maximum of the penalty for the most
serious crime.
In contrast, Article 365 is a substantive rule
penalizing not an act defined as a felony but "the
mental attitude x x x behind the act, the dangerous
recklessness, lack of care or foresight x x x,"47 a single
mental attitude regardless of the resulting
consequences. Thus, Article 365 was crafted as one
quasi-crime resulting in one or more consequences.
Ordinarily, these two provisions will operate
smoothly. Article 48 works to combine in a single
prosecution multiple intentional crimes falling under
Titles 1-13, Book II of the Revised Penal Code, when
proper; Article 365 governs the prosecution of
imprudent acts and their consequences. However, the
complexities of human interaction can produce a
hybrid quasi-offense not falling under either models –
that of a single criminal negligence resulting in
multiple non-crime damages to persons and property
with varying penalties corresponding to light, less
grave or grave offenses. The ensuing prosecutorial
dilemma is obvious: how should such a quasi-crime be
prosecuted? Should Article 48’s framework apply to
"complex" the single quasi-offense with its multiple
(non-criminal) consequences (excluding those
amounting to light offenses which will be tried
separately)? Or should the prosecution proceed under
a single charge, collectively alleging all the
consequences of the single quasi-crime, to be
penalized separately following the scheme of penalties
under Article 365?
Jurisprudence adopts both approaches. Thus, one line
of rulings (none of which involved the issue of double
jeopardy) applied Article 48 by "complexing" one
quasi-crime with its multiple consequences48 unless
one consequence amounts to a light felony, in which
case charges were split by grouping, on the one hand,
resulting acts amounting to grave or less grave felonies
and filing the charge with the second level courts and,
on the other hand, resulting acts amounting to light
felonies and filing the charge with the first level
courts.49 Expectedly, this is the approach the MeTC
impliedly sanctioned (and respondent Ponce invokes),
even though under Republic Act No. 7691,50 the
MeTC has now exclusive original jurisdiction to
impose the most serious penalty under Article 365
which is prision correccional in its medium period.
Under this approach, the issue of double jeopardy will
not arise if the "complexing" of acts penalized under
Article 365 involves only resulting acts penalized as
grave or less grave felonies because there will be a
single prosecution of all the resulting acts. The issue of
double jeopardy arises if one of the resulting acts is
penalized as a light offense and the other acts are
penalized as grave or less grave offenses, in which case
Article 48 is not deemed to apply and the act penalized
as a light offense is tried separately from the resulting
acts penalized as grave or less grave offenses.
The second jurisprudential path nixes Article 48 and
sanctions a single prosecution of all the effects of the
quasi-crime collectively alleged in one charge,
regardless of their number or severity,51 penalizing
each consequence separately. Thus, in Angeles v.
Jose,52 we interpreted paragraph three of Article 365,
in relation to a charge alleging "reckless imprudence
resulting in damage to property and less serious
physical injuries," as follows:
[T]he third paragraph of said article, x x x reads as
follows:
When the execution of the act covered by this article
shall have only resulted in damage to the property of
another, the offender shall be punished by a fine
ranging from an amount equal to the value of said
damage to three times such value, but which shall in
no case be less than 25 pesos.
The above-quoted provision simply means that if there
is only damage to property the amount fixed therein
shall be imposed, but if there are also physical injuries
there should be an additional penalty for the latter.
The information cannot be split into two; one for the
physical injuries, and another for the damage to
property, x x x.53 (Emphasis supplied)
By "additional penalty," the Court meant, logically, the
penalty scheme under Article 365.
Evidently, these approaches, while parallel, are
irreconcilable. Coherence in this field demands
choosing one framework over the other. Either (1) we
allow the "complexing" of a single quasi-crime by
breaking its resulting acts into separate offenses
(except for light felonies), thus re-conceptualize a
quasi-crime, abandon its present framing under
Article 365, discard its conception under the Quizon
and Diaz lines of cases, and treat the multiple
consequences of a quasi-crime as separate intentional
felonies defined under Titles 1-13, Book II under the
penal code; or (2) we forbid the application of Article
48 in the prosecution and sentencing of quasi-crimes,
require single prosecution of all the resulting acts
regardless of their number and severity, separately
penalize each as provided in Article 365, and thus
maintain the distinct concept of quasi-crimes as
crafted under Article 365, articulated in Quizon and
applied to double jeopardy adjudication in the Diaz
line of cases.1avvphi1
A becoming regard of this Court’s place in our scheme
of government denying it the power to make laws
constrains us to keep inviolate the conceptual
distinction between quasi-crimes and intentional
felonies under our penal code. Article 48 is
incongruent to the notion of quasi-crimes under
Article 365. It is conceptually impossible for a quasi-
offense to stand for (1) a single act constituting two or
more grave or less grave felonies; or (2)
an offense which is a necessary means for committing
another. This is why, way back in 1968 in Buan, we
rejected the Solicitor General’s argument that double
jeopardy does not bar a second prosecution for slight
physical injuries through reckless imprudence
allegedly because the charge for that offense could not
be joined with the other charge for serious physical
injuries through reckless imprudence following
Article 48 of the Revised Penal Code:
The Solicitor General stresses in his brief that the
charge for slight physical injuries through reckless
imprudence could not be joined with the accusation
for serious physical injuries through reckless
imprudence, because Article 48 of the Revised Penal
Code allows only the complexing of grave or less grave
felonies. This same argument was considered
and rejected by this Court in the case of People vs.
[Silva] x x x:
[T]he prosecution’s contention might be true. But
neither was the prosecution obliged to first prosecute
the accused for slight physical injuries through
reckless imprudence before pressing the more serious
charge of homicide with serious physical injuries
through reckless imprudence. Having first prosecuted
the defendant for the lesser offense in the Justice of the
Peace Court of Meycauayan, Bulacan, which acquitted
the defendant, the prosecuting attorney is not now in
a position to press in this case the more serious charge
of homicide with serious physical injuries through
reckless imprudence which arose out of the same
alleged reckless imprudence of which the defendant
has been previously cleared by the inferior court.
[W]e must perforce rule that the exoneration of this
appellant x x x by the Justice of the Peace x x x of the
charge of slight physical injuries through reckless
imprudence, prevents his being prosecuted for serious
physical injuries through reckless imprudence in the
Court of First Instance of the province, where both
charges are derived from the consequences of one and
the same vehicular accident, because the second
accusation places the appellant in second jeopardy for
the same offense.54 (Emphasis supplied)
Indeed, this is a constitutionally compelled choice. By
prohibiting the splitting of charges under Article 365,
irrespective of the number and severity of the
resulting acts, rampant occasions of constitutionally
impermissible second prosecutions are avoided, not to
mention that scarce state resources are conserved and
diverted to proper use.
Hence, we hold that prosecutions under Article 365
should proceed from a single charge regardless of the
number or severity of the consequences. In imposing
penalties, the judge will do no more than apply the
penalties under Article 365 for each consequence
alleged and proven. In short, there shall be no splitting
of charges under Article 365, and only one
information shall be filed in the same first level
court.55
Our ruling today secures for the accused facing an
Article 365 charge a stronger and simpler protection
of their constitutional right under the Double
Jeopardy Clause. True, they are thereby denied the
beneficent effect of the favorable sentencing formula
under Article 48, but any disadvantage thus caused is
more than compensated by the certainty of non-
prosecution for quasi-crime effects qualifying as "light
offenses" (or, as here, for the more serious
consequence prosecuted belatedly). If it is so minded,
Congress can re-craft Article 365 by extending to
quasi-crimes the sentencing formula of Article 48 so
that only the most severe penalty shall be imposed
under a single prosecution of all resulting acts,
whether penalized as grave, less grave or light
offenses. This will still keep intact the distinct concept
of quasi-offenses. Meanwhile, the lenient schedule of
penalties under Article 365, befitting crimes
occupying a lower rung of culpability, should cushion
the effect of this ruling.
WHEREFORE, we GRANT the petition.
We REVERSE the Orders dated 2 February 2006 and 2
May 2006 of the Regional Trial Court of Pasig City,
Branch 157. We DISMISS the Information in Criminal
Case No. 82366 against petitioner Jason Ivler y Aguilar
pending with the Metropolitan Trial Court of Pasig
City, Branch 71 on the ground of double jeopardy.
Let a copy of this ruling be served on the President of
the Senate and the Speaker of the House of
Representatives.
SO ORDERED.
ANTONIO T. CARPIO
Associate Justice
WE CONCUR:
CONCHITA CARPIO MORALES
Associate Justice
DIOSDADO M.
ROBERTO A. ABAD
PERALTA
Associate Justice
Associate Justice
JOSE C. MENDOZA
Associate Justice
ATTESTATION
I attest that the conclusions in the above Decision had
been reached in consultation before the case was
assigned to the writer of the opinion of the Court’s
Division.
ANTONIO T. CARPIO
Associate Justice
Chairperson
CERTIFICATION
Pursuant to Section 13, Article VIII of the
Constitution, and the Division Chairperson’s
Attestation, I certify that the conclusions in the above
Decision had been reached in consultation before the
case was assigned to the writer of the opinion of the
Court’s Division.
RENATO C. CORONA
Chief Justice
MINORITY

45. People vs. Terencio Funesto Y Llospardas, GR No.

182237, Aug. 3, 2011

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 182237 August 3, 2011
THE PEOPLE OF THE PHILIPPINES, Appellee,
vs.
TERENCIO FUNESTO y LLOSPARDAS, Appellant.
DECISION
BRION, J.:
We decide the appeal filed by accused Terencio
Funesto y Llospardas (appellant) from the December
13, 2006 decision1 of the Court of Appeals (CA) in CA-
G.R. CR.-H.C. No. 00415 MIN.
The Factual Antecedents
On June 9, 1992, the prosecution charged2 the
appellant at the Regional Trial Court (RTC), Branch 2,
Libertad, Butuan City,3 with rape4 committed on
January 15, 1992 against AAA,5 a child below 12 years
old. The appellant pleaded not guilty to the charge.6 In
the trial that followed, AAA, her mother (BBB), and
Dr. Teonesto K. Mora (Medical Officer at Cabadbaran
District Health Office) testified on the details of the
crime.
The appellant, BBB, and AAA lived in a house in
Barangay Marcos, Magallanes, Agusan del Norte. At
around 9:00 p.m. of January 15, 1992, while BBB was
at a prayer service, the appellant approached the
sleeping AAA, then nine years old, and removed her
panty. He then forcibly inserted his penis into her
vagina, waking up AAA. Due to the extreme pain and
numbness in her legs, AAA could not push him away.
After satisfying his lust, the appellant restored AAA’s
panty and returned to his mosquito net. AAA noticed
blood in her private parts.7
When BBB returned from the prayer service (held at
the residence of a certain Edna M. Almonte in
observance of the feast of Sto. Niño),8 she noticed
blood at the hemline and at the back part of AAA’s
dress. Upon inquiry, AAA disclosed to her what the
appellant did to her. BBB confronted the appellant
who denied the allegations and threatened to slap
AAA.9 BBB wanted to go out to ask for help, but the
appellant threatened to kill her if she reported the
incident.10
BBB brought AAA the following day to the
Cabadbaran Emergency Hospital because AAA could
not stand, could hardly urinate, and felt extreme pain
in her abdomen.11 Dr. Mora, who medically examined
AAA, found that her hymen was no longer intact, and
that she had an anterior vaginal laceration. He also
noticed the reddish discoloration of her labia minora.
Specimen taken from her genitalia also tested positive
for the presence of human spermatozoa.12
The appellant, interposing denial as a defense, alleged
that BBB fabricated the charge due to his rejection of
her sexual advances, and to extort money.13
The RTC Ruling
The RTC found the appellant guilty of statutory rape
in its May 4, 1999 decision. It gave credence to the
candid testimony of AAA and the corroborating
medical findings, and rejected the appellant’s
allegation of fabrication. In appreciating the victim’s
minority to qualify the crime as statutory rape, the
RTC noted that while the prosecution did not present
AAA’s certificate of live birth to prove her age, the
defense did not question AAA’s age when she testified
that she was nine years old. The court also observed
that if AAA did not look her age of nine years, the
defense would have called its attention while AAA
was on the witness stand. It imposed the penalty of
reclusion perpetua on the appellant, and ordered him
to pay AAA ₱100,000.00 as compensatory and moral
damages, and to pay BBB ₱50,000.00 as moral
damages.14
The RTC forwarded the records of the case to this
Court for automatic review. Pursuant to People v.
Mateo,15 we referred the case to the CA for
intermediate appellate review.
The CA Ruling
In its December 13, 2006 decision, the CA affirmed the
RTC’s appreciation of AAA’s clear, straightforward,
and spontaneous testimony that pointed to the
appellant as the person who raped her. The CA deleted
the ₱50,000.00 moral damages awarded to BBB, noting
that such award is only for the victims.16
From the CA, the case is now with us for final review.
Our Ruling
We affirm the appellant’s conviction.
Based on the records before us, we see no reason to
disturb the RTC's appreciation of the credibility of
AAA’s testimony. The assessment of the credibility of
witnesses is a domain best left to the trial court judge
because of his unique opportunity to observe their
deportment and demeanor on the witness stand; his
findings are binding and conclusive upon this Court
when affirmed by the CA.17
We differ from the lower courts’ conclusion that
AAA’s minority can be appreciated to qualify the
crime as statutory rape since her minority was not
proven by independent evidence. In People v.
Pruna,18 the Court set out the following guidelines in
appreciating age, either as an element of the crime or
as a qualifying circumstance:
1. The best evidence to prove the age of the
offended party is an original or certified true copy
of the certificate of live birth of such party.
2. In the absence of a certificate of live birth,
similar authentic documents such as baptismal
certificate and school records which show the date
of birth of the victim would suffice to prove age.
3. If the certificate of live birth or authentic
document is shown to have been lost or destroyed
or otherwise unavailable, the testimony, if clear
and credible, of the victim's mother or a member
of the family either by affinity or consanguinity
who is qualified to testify on matters respecting
pedigree such as the exact age or date of birth of
the offended party pursuant to Section 40, Rule
130 of the Rules on Evidence shall be sufficient
under the following circumstances:
a. If the victim is alleged to be below 3 years of
age and what is sought to be proved is that she
is less than 7 years old;
b. If the victim is alleged to be below 7 years of
age and what is sought to be proved is that she
is less than 12 years old;
c. If the victim is alleged to be below 12 years
of age and what is sought to be proved is that
she is less than 18 years old.
4. In the absence of a certificate of live birth,
authentic document, or the testimony of the
victim's mother or relatives concerning the
victim's age, the complainant's testimony will
suffice provided that it is expressly and clearly
admitted by the accused.
 5. It is the prosecution that has the burden of
proving the age of the offended party. The failure
of the accused to object to the testimonial evidence
regarding age shall not be taken against him.
6. The trial court should always make a categorical
finding as to the age of the victim.19
In the present case, the prosecution failed to present
any certificate of live birth or any similar authentic
document to prove the age of AAA when she was
sexually violated. Neither did the appellant expressly
admit AAA’s age.
This conclusion notwithstanding, we find that the
prosecution sufficiently proved that force and
intimidation attended the commission of the crime, as
alleged in the Information. Jurisprudence firmly holds
that the force or violence required in rape cases is
relative; it does not need to be overpowering or
irresistible; it is present when it allows the offender to
consummate his purpose.20 In this case, the appellant
employed that amount of force sufficient to
consummate rape. In fact, the medical findings
confirmed AAA’s non-virgin state.
Thus, the appellant is guilty of simple rape under
Article 335(2) of the Revised Penal Code, and was
properly sentenced with the penalty of reclusion
perpetua.21
On the appellant’s civil liabilities, a victim in simple
rape cases is entitled under prevailing jurisprudence
not only to ₱50,000.00 as civil indemnity and to an
added ₱50,000.00 as moral damages, but also to
₱30,000.00 as exemplary damages to serve as an
example to deter persons with perverse or aberrant
sexual behavior from sexually abusing children.22 So,
this should be in the present case.
WHEREFORE, the December 13, 2006 decision of the
Court of Appeals in CA-G.R. CR.-H.C. No. 00415 MIN
is
hereby AFFIRMED with MODIFICATION. Appellant
Terencio Funesto y Llospardas is found guilty beyond
reasonable doubt of rape, and sentenced to suffer the
penalty of reclusion perpetua. He is also ordered to
pay AAA ₱50,000.00 as civil indemnity, ₱50,000.00 as
moral damages, and ₱30,000.00 as exemplary damages.
Costs against the appellant.
SO ORDERED.
ARTURO D. BRION
Associate Justice
WE CONCUR:
ANTONIO T. CARPIO
Associate Justice
Chairperson
TERESITA J.
JOSE PORTUGAL
LEONARDO-DE
PEREZ
CASTRO
Associate Justice
Associate Justice
MARIA LOURDES P. A. SERENO
Associate Justice
ATTESTATION
I attest that the conclusions in the above Decision had
been reached in consultation before the case was
assigned to the writer of the opinion of the Court’s
Division.
ANTONIO T. CARPIO
Associate Justice
Chairperson, Second Division
CERTIFICATION
Pursuant to Section 13, Article VIII of the
Constitution, and the Division Chairperson's
Attestation, I certify that the conclusions in the above
Decision had been reached in consultation before the
case was assigned to the writer of the opinion of the
Court’s Division.
RENATO C. CORONA
Chief Justice