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PEOPLE OF THE PHILIPPINE ISLANDS vs.

AURELIO LAMAHANG
G.R. No. L-43530 August 3, 1935
RECTO, J.:
The defendant Aurelio Lamahang is before this court on appeal from a decision of the Court of First Instance of Iloilo,
finding him guilty of attempted robbery and sentencing him to suffer two years and four months of prision
correccional and to an additional penalty of ten years and one day of prision mayor for being an habitual delinquent,
with the accessory penalties of the law, and to pay the costs of the proceeding.
At early dawn on March 2, 1935, policeman Jose Tomambing, who was patrolling his beat on Delgado and C.R.
Fuentes streets of the City of Iloilo, caught the accused in the act of making an opening with an iron bar on the wall of
a store of cheap goods located on the last named street. At that time the owner of the store, Tan Yu, was sleeping
inside with another Chinaman. The accused had only succeeded in breaking one board and in unfastening another
from the wall, when the policeman showed up, who instantly arrested him and placed him under custody.
The fact above stated was considered and declared unanimously by the provincial fiscal of Iloilo, the trial judge and
the Solicitor-General, as constituting attempted robbery, which we think is erroneous.
It is our opinion that the attempt to commit an offense which the Penal Code punishes is that which has a logical
relation to a particular, concrete offense; that, which is the beginning of the execution of the offense by overt acts of
the perpetrator, leading directly to its realization and consummation. The attempt to commit an indeterminate offense,
inasmuch as its nature in relation to its objective is ambiguous, is not a juridical fact from the standpoint of the Penal
Code. There is no doubt that in the case at bar it was the intention of the accused to enter Tan Yu's store by means of
violence, passing through the opening which he had started to make on the wall, in order to commit an offense which,
due to the timely arrival of policeman Tomambing, did not develop beyond the first steps of its execution. But it is not
sufficient, for the purpose of imposing penal sanction, that an act objectively performed constitute a mere beginning of
execution; it is necessary to establish its unavoidable connection, like the logical and natural relation of the cause and
its effect, with the deed which, upon its consummation, will develop into one of the offenses defined and punished by
the Code; it is necessary to prove that said beginning of execution, if carried to its complete termination following its
natural course, without being frustrated by external obstacles nor by the voluntary desistance of the perpetrator, will
logically and necessarily ripen into a concrete offense. Thus, in case of robbery, in order that the simple act of entering
by means of force or violence another person's dwelling may be considered an attempt to commit this offense, it must
be shown that the offender clearly intended to take possession, for the purpose of gain, of some personal property
belonging to another. In the instant case, there is nothing in the record from which such purpose of the accused may
reasonably be inferred. From the fact established and stated in the decision, that the accused on the day in question
was making an opening by means of an iron bar on the wall of Tan Yu's store, it may only be inferred as a logical
conclusion that his evident intention was to enter by means of force said store against the will of its owner. That his
final objective, once he succeeded in entering the store, was to rob, to cause physical injury to the inmates, or to
commit any other offense, there is nothing in the record to justify a concrete finding.1avvphil.ñet
It must be borne in mind (I Groizard, p. 99) that in offenses not consummated, as the material damage is
wanting, the nature of the action intended (accion fin) cannot exactly be ascertained, but the same must be
inferred from the nature of the acts executed (accion medio). Hence, the necessity that these acts be such
that by their very nature, by the facts to which they are related, by the circumstances of the persons
performing the same, and by the things connected therewith, they must show without any doubt, that they are
aimed at the consummation of a crime. Acts susceptible of double interpretation , that is, in favor as well as
against the culprit, and which show an innocent as well as a punishable act, must not and can not furnish
grounds by themselves for attempted nor frustrated crimes. The relation existing between the facts submitted
for appreciation and the offense which said facts are supposed to produce must be direct; the intention must
be ascertained from the facts and therefore it is necessary, in order to avoid regrettable instances of injustice,
that the mind be able to directly infer from them the intention of the perpetrator to cause a particular injury.
This must have been the intention of the legislator in requiring that in order for an attempt to exist, the offender
must commence the commission of the felony directly by overt acts, that is to say, that the acts performed
must be such that, without the intent to commit an offense, they would be meaningless.
Viada (Vol. I, p. 47) holds the same opinion when he says that "the overt acts leading to the commission of the
offense, are not punished except when they are aimed directly to its execution, and therefore they must have an
immediate and necessary relation to the offense."
Considering — says the Supreme Court of Spain in its decision of March 21, 1892 — that in order to declare
that such and such overt acts constitute an attempted offense it is necessary that their objective be known and
established, or that said acts be of such nature that they themselves should obviously disclose the criminal
objective necessarily intended, said objective and finality to serve as ground for the designation of the offense:
....
In view of the foregoing, we are of the opinion, and so hold that the fact under consideration does not constitute
attempted robbery but attempted trespass to dwelling (People vs. Tayag and Morales, 59 Phil., 606, and decisions of
the Supreme Court of Spain therein cited). Under article 280 of the Revised Penal Code, this offense is committed
when a private person shall enter the dwelling of another against the latter's will. The accused may be convicted and
sentenced for an attempt to commit this offense in accordance with the evidence and the following allegation
contained in the information: "... the accused armed with an iron bar forced the wall of said store by breaking a board
and unfastening another for the purpose of entering said store ... and that the accused did not succeed in entering the
store due to the presence of the policeman on beat Jose Tomambing, who upon hearing the noise produced by the
breaking of the wall, promptly approached the accused ... ." Under the circumstances of this case the prohibition of the
owner or inmate is presumed. (U.S. vs. Ostrea, 2 Phil., 93; U.S. vs. Silvano, 31 Phil., 509' U.S. vs. Ticson, 25 Phil., 67;
U.S. vs. Mesina, 21 Phil., 615; U.S. vs. Villanueva, 18 Phil., 215; U.S. vs. Panes, 25 Phil., 292.) Against the accused
must be taken into consideration the aggravating circumstances of nighttime and former convictions, — inasmuch as
the record shows that several final judgments for robbery and theft have been rendered against him — and in his
favor, the mitigating circumstance of lack of instruction. The breaking of the wall should not be taken into consideration
as an aggravating circumstance inasmuch as this is the very fact which in this case constitutes the offense of
attempted trespass to dwelling.
The penalty provided by the Revised Penal Code for the consummated offense of trespass to dwelling, if committed
with force, is prision correccional in its medium and maximum periods and a fine not exceeding P1,000 (art. 280, par.
2); therefore the penalty corresponding to attempted trespass to dwelling is to degrees lower (art. 51), or, arresto
mayor in its minimum and medium periods. Because of the presence of two aggravating circumstances and one
mitigating circumstance the penalty must be imposed in its maximum period. Pursuant to article 29 of the same Code,
the accused is not entitled to credit for one-half of his preventive imprisonment.
Wherefore, the sentence appealed from is revoked and the accused is hereby held guilty of attempted trespass to
dwelling, committed by means of force, with the aforesaid aggravating and mitigating circumstances and sentenced to
three months and one day of arresto mayor, with the accessory penalties thereof and to pay the costs.
RENATO BALEROS, JR. vs. PEOPLE OF THE PHILIPPINES
G.R. No. 138033 February 22, 2006
GARCIA, J.:
In this petition for review on certiorari, petitioner Renato Baleros, Jr. assails and seeks the reversal of the January 13,
1999 decision1 of the Court of Appeals (CA) in CA-G.R. CR No. 17271 as reiterated in its March 31, 1999
resolution2 denying petitioner’s motion for reconsideration.
The assailed decision affirmed an earlier decision of the Regional Trial Court (RTC) of Manila, Branch 2, in Criminal
Case No. 91-101642 finding petitioner Renato Baleros, Jr. y David (CHITO) guilty of attempted rape. 3
The accusatory portion of the information4 dated December 17, 1991 charging petitioner with attempted rape reads as
follow:
That about 1:50 in the morning or sometime thereafter of 13 December 1991 in Manila and within the jurisdiction of
this Honorable Court, the above-named accused, by forcefully covering the face of Martina Lourdes T. Albano with a
piece of cloth soaked in chemical with dizzying effects, did then and there willfully, unlawfully and feloniously
commenced the commission of rape by lying on top of her with the intention to have carnal knowledge with her but
was unable to perform all the acts of execution by reason of some cause or accident other than his own spontaneous
desistance, said acts being committed against her will and consent to her damage and prejudice.
Upon arraignment on February 5, 1992, petitioner, assisted by counsel, pleaded "Not Guilty." 5 Thereafter, trial on the
merits ensued.
To prove its case, the prosecution presented thirteen (13) witnesses. Among them were private complainant Martina
Lourdes Albano (Malou), and her classmates, Joseph Bernard Africa, Rommel Montes, Renato Alagadan and
Christian Alcala. Their testimonies, as narrated in some detail in the decision of the CA, established the following facts:
Like most of the tenants of the Celestial Marie Building (hereafter "Building", …) along A.H. Lacson Street, Sampaloc,
Manila, MALOU, occupying Room 307 with her maid, Marvilou Bebania (Marvilou), was a medical student of the
University of Sto. Tomas [UST] in 1991.
In the evening of December 12, inside Unit 307, MALOU retired at around 10:30. Outside, right in front of her bedroom
door, her maid, Marvilou, slept on a folding bed.
Early morning of the following day, MALOU was awakened by the smell of chemical on a piece of cloth pressed on her
face. She struggled but could not move. Somebody was pinning her down on the bed, holding her tightly. She wanted
to scream for help but the hands covering her mouth with cloth wet with chemicals were very tight (TSN, July 5, 1993,
p. 33). Still, MALOU continued fighting off her attacker by kicking him until at last her right hand got free. With this …
the opportunity presented itself when she was able to grab hold of his sex organ which she then squeezed.
The man let her go and MALOU went straight to the bedroom door and roused Marvilou. xxx. Over the intercom,
MALOU told S/G Ferolin that: "may pumasok sa kuarto ko pinagtangkaan ako" (Ibid., p. 8). Who it was she did not,
however, know. The only thing she had made out during their struggle was the feel of her attacker’s clothes and
weight. His upper garment was of cotton material while that at the lower portion felt smooth and satin-like (Ibid, p. 17).
He … was wearing a t-shirt and shorts … Original Records, p. 355).
To Room 310 of the Building where her classmates Christian Alcala, Bernard Baptista, Lutgardo Acosta and Rommel
Montes were staying, MALOU then proceeded to seek help. xxx.
It was then when MALOU saw her bed … topsy-turvy. Her nightdress was stained with blue … (TSN, July 5, 1993, pp.
13-14). Aside from the window with grills which she had originally left opened, another window inside her bedroom
was now open. Her attacker had fled from her room going through the left bedroom window (Ibid, Answers to Question
number 5; Id), the one without iron grills which leads to Room 306 of the Building (TSN, July 5, 1993, p.6).
xxx xxx xxx
Further, MALOU testified that her relation with CHITO, who was her classmate …, was friendly until a week prior to the
attack. CHITO confided his feelings for her, telling her: "Gusto kita, mahal kita" (TSN, July 5, 1993, p. 22) and she
rejected him. …. (TSN, July 5, 1993, p. 22).
Meanwhile, according to S/G Ferolin, while he was on duty, CHITO arrived at the Building at 1:30 in the early morning
of December 13, 1991, wearing a white t-shirt with “‘…a marking on the front of the T-shirt T M and a Greek letter (sic)
ΣΦ’ and below the quoted letters the word ‘1946’ ‘UST Medicine and Surgery’” (TSN, October 9, 1992, p. 9) and black
shorts with the brand name “Adidas” (TSN, October 16, 1992, p.7) and requested permission to go up to Room 306.
This Unit was being leased by Ansbert Co and at that time when CHITO was asking permission to enter, only Joseph
Bernard Africa was in the room.
He asked CHITO to produce the required written authorization and when CHITO could not, S/G Ferolin initially refused
[but later, relented] …. S/G Ferolin made the following entry in the security guard’s logbook …:
"0130H Baleros Renato Jr. is a visitor of Ansbert Co who has not have (sic) a Request letter from our tenant of Unit #-
306 Ansbert, but still I let him inter (sic) for the reason that he will be our tenant this coming summer break as he said
so I let him sign it here
(Sgd.) Baleros Renato Jr."
(Exhibit "A-2")
That CHITO arrived at Room 306 at 1:30 A.M. of December 13, 1991 was corroborated by Joseph Bernard Africa
(Joseph), ….
xxx xxx xxx
Joseph was already inside Room 306 at 9 o’clock in the evening of December 12, 1991. xxx by the time CHITO’s
knocking on the door woke him up, …. He was able to fix the time of CHITO’s arrival at 1:30 A.M. because he glanced
at the alarm clock beside the bed when he was awakened by the knock at the door ….
Joseph noticed that CHITO was wearing dark-colored shorts and white T-shirt (Ibid., p. 23) when he let the latter in.
…. It was at around 3 o’clock in the morning of December 13, 1991 when he woke up again later to the sound of
knocking at the door, this time, by Bernard Baptista (Bernard), ….
xxx. With Bernard, Joseph then went to MALOU’s room and thereat was shown by Bernard the open window through
which the intruder supposedly passed.
xxx xxx xxx
Later, at about 6 to 6:30 in the morning of December 13, 1991, Joseph was finally able to talk to CHITO …. He
mentioned to the latter that something had happened and that they were not being allowed to get out of the building.
Joseph also told CHITO to follow him to Room 310.
CHITO did just that. He followed after Joseph to Unit 310, carrying his gray bag. xxx. None was in Room 310 so
Joseph went to their yet another classmate, Renato Alagadan at Room 401 to see if the others were there. xxx.
People from the CIS came by before 8 o’clock that same morning …. They likewise invited CHITO and Joseph to go
with them to Camp Crame where the two (2) were questioned ….
An occupant of Room 310 … Christian Alcala (Christian) recalled in Court that in the afternoon of December 13, 1991,
after their 3:30 class, he and his roommates, Bernard Baptista and Lutgardo Acosta (Gary) were called to the Building
and were asked by the CIS people to look for anything not belonging to them in their Unit. While they were outside
Room 310 talking with the authorities, Rommel Montes (Loyloy), another roommate of his, went inside to search the
Unit. Loyloy found (TSN, January 12, 1993, p. 6) a gray "Khumbella" bag cloth type (Ibid, pp. 44-45) from inside their
unit which they did not know was there and surrender the same to the investigators. When he saw the gray bag,
Christian knew right away that it belonged to CHITO (Ibid, p. 55) as he had seen the latter usually bringing it to school
inside the classroom (Ibid, p. 45).
In their presence, the CIS opened the bag and pulled out its contents, among others, a white t-shirt with a Taunu (sic)
Sigma Phi sign (Ibid, p. 7), a Black Adidas short pants, a handkerchief , three (3) white T-shirts, an underwear, and
socks (Ibid).
Christian recognized the t-shirt (Exhibit "D-4"), the Adidas short pants (Exhibit "D-5"), and the handkerchief (Exhibit "D-
3) to be CHITO’s because CHITO had lent the very same one to him …. The t-shirt with CHITO’s fraternity symbol,
CHITO used to wear on weekends, and the handkerchief he saw CHITO used at least once in December.
That CHITO left his bag inside Room 310 in the morning of December 13, 1991, was what consisted mainly of Renato
R. Alagadan’s testimony.
xxx xxx xxx.
The colored gray bag had a handle and a strap, was elongated to about 11/4 feet and appeared to be full but was
closed with a zipper when Renato saw it then (Ibid, pp. 19-20). At that time Christian, Gary, Bernard, and Renato went
back to Room 310 at around 3 to 4 o’clock that afternoon along with some CIS agents, they saw the bag at the same
place inside the bedroom where Renato had seen CHITO leave it. Not until later that night at past 9 o’clock in Camp
Crame, however, did Renato know what the contents of the bag were.
xxx xxx xxx.
The forensic Chemist, Leslie Chambers, of the Philippine National Police Crime Laboratory in Camp Crame, having
acted in response to the written request of PNP Superintendent Lucas M. Managuelod dated December 13, 1991,
(Exhibit "C"; Original Records, p. 109.) conducted laboratory examination on the specimen collated and submitted….
Her Chemistry Report No. C-487-91 (Exhibit "E"; Ibid., p. 112) reads in part, thus:
"SPECIMEN SUBMITTED:
xxx xxx xxx:
1) One (1) small white plastic bag marked ‘UNIMART’ with the following:
xxx xxx xxx
Exh ‘C’ – One (1) night dress colored salmon pink.
2) One (1) small white pl astic bag marked ‘JONAS’ with the following:
Exh. ‘D’ – One (1) printed handkerchief.
Exh. ‘E’ – One (1) white T-shirt marked ‘TMZI’.
Exh. ‘F’ – One (1) black short (sic) marked ‘ADIDAS’.
PURPOSE OF LABORATORY EXAMINATION:
To determine the presence of volatime (sic), non-volatile and/or metallic poison on the above stated specimens.
FINDINGS:
Toxicological examination conducted on the above stated specimens gave the following results:
Exhs. ‘C’ and ‘D’ – POSITIVE to the test for chloroform, a volatile poison.
Exhs. ‘A’, ‘B’, ‘E’ and ‘F’ are insufficient for further analysis.
CONCLUSION:
Exhs. ‘C’ and ‘D’ contain chloroform, a volatile poison." 6 (Words in bracket added)
For its part, the defense presented, as its main witness, the petitioner himself. He denied committing the crime
imputed to him or making at any time amorous advances on Malou. Unfolding a different version of the incident, the
defense sought to establish the following, as culled from the same decision of the appellate court:
In December of 1991, CHITO was a medical student of … (UST). With Robert Chan and Alberto Leonardo, he was
likewise a member of the Tau Sigma Phi Fraternity …. MALOU, …, was known to him being also a medical student at
the UST at the time.
From Room 306 of the Celestial Marie Building …, CHITO, wearing the prescribed barong tagalog over dark pants
and leather shoes, arrived at their Fraternity house located at … Dos Castillas, Sampaloc, Manila at about 7 o’clock in
the evening of December 12, 1991. He was included in the entourage of some fifty (50) fraternity members scheduled
for a Christmas gathering at the house of their senior fraternity brother, Dr. Jose Duran, at No. 3 John Street, North
Greenhills, San Juan. xxx.
The party was conducted at the garden beside [the] swimming pool …. Soon after, … the four (4) presidential
nominees of the Fraternity, CHITO included, were being dunked one by one into the pool. xxx.
xxx CHITO had anticipated his turn … and was thus wearing his t-shirt and long pants when he was dunked. Perla
Duran, …, offered each … dry clothes to change into and CHITO put on the white t-shirt with the Fraternity’s symbol
and a pair of black shorts with stripes. xxx .
Again riding on Alberto’s car and wearing "barong tagalog over a white t-shirt with the symbol TAU Sigma Phi, black
short pants with stripe, socks and shoes" (TSN, April 25, 1994, p. 15), CHITO left the party with Robert Chan and
Alberto at more or less past 1 A.M. of December 13, 1991 and proceeded to the Building which they reached at about
1:30 A.M. (Ibid., p. 19). He had left his gray traveling bag containing "white t-shirt, sando, underwear, socks, and
toothbrush (Ibid., pp. 17-18) at room 306 in the afternoon of the previous day ….
At the gate of the Building, CHITO knocked and …, S/G Ferolin, looking at his watch, approached. Because of this,
CHITO also looked at his own watch and saw that the time was 1:30 (Ibid., p. 26). S/G Ferolin initially refused CHITO
entry …. xxx.
S/G Ferolin called Unit 306 …. xxx. When S/G Ferolin finally let him in, already about ten (10) minutes had lapsed
since CHITO first arrived (Ibid., p. 25).
CHITO went up the floor, found the key left for him by Joseph behind the opened jalousie window and for five (5)
minutes vainly tried to open the door until Rommel Montes, … approached him and even commented: "Okey ang suot
mo ha, di mo mabuksan ang pinto (Ibid., pp. 26-29). Rommel tried to open the door of Unit 306 … but was likewise
unsuccessful. CHITO then decided to just call out to Joseph while knocking at the door.
It took another (5) minutes of calling out and knocking before Joseph, …, at last answered the door. Telling him, "Ikaw
na ang bahala diyan" Joseph immediately turned his back on CHITO and went inside the bedroom. CHITO , …
changed to a thinner shirt and went to bed. He still had on the same short pants given by Perla Duran from the
fraternity party (TSN, June 16, 1994, p. 20).
At 6 o’clock in the morning of December 13, 1991, CHITO woke up …. He was already in his school uniform when,
around 6:30 A.M, Joseph came to the room not yet dressed up. He asked the latter why this was so and, without
elaborating on it, Joseph told him that something had happened and to just go to Room 310 which CHITO did.
At Room 310, CHITO was told by Rommel Montes that somebody, whom MALOU was not able to identify, went to the
room of MALOU and tried to rape her (TSN, April 25, 1994, p. 36). xxx.
Joseph told him that the security guard was not letting anybody out of the Building …. When two (2) CIS men came to
the unit asking for Renato Baleros, CHITO presented himself. Congressman Rodolfo B. Albano, father of MALOU,
then asked him for the key to Room 306….
xxx xxx xxx
The CIS men looked inside the bedroom and on the windows. Joseph was told to dress up and the two (2) of them,
CHITO and Joseph, were brought to Camp Crame.
When they arrived at Camp Crame …, Col. Managuelod asked Joseph inside his room and talked to him for 30
minutes. xxx. No one interviewed CHITO to ask his side.
xxx xxx xxx
Both CHITO and Joseph were taken to Prosecutor Abesamis who later instructed them to undergo physical
examination at the Camp Crame Hospital ….. At the hospital, … CHITO and Joseph were physically examined by a
certain Dr. de Guzman who told them to strip ….
xxx xxx xxx
CHITO had left his gray bag containing, among others, the black striped short pants lent to him by Perla Duran
(Exhibit "8-A", Original Records, p. 345), inside Room 310 at more/less 6:30 to 7 o’clock in the morning of December
13, 1991. The next time that he saw it was between 8 to 9 P.M. when he and Joseph were brought before Fiscal
Abesamis for inquest. One of the CIS agents had taken it there and it was not opened up in his presence but the
contents of the bag were already laid out on the table of Fiscal Abesamis who, however, made no effort to ask CHITO
if the items thereat were his.
The black Adidas short pants purportedly found in the bag, CHITO denied putting in his gray bag which he had left at
Room 306 in the early evening of December 12, 1991 before going to the fraternity house. He likewise disavowed
placing said black Adidas short pants in his gray bag when he returned to the apartment at past 1:00 o’clock in the
early morning of December 13, 1991 (TSN, June 16, 1994, p. 24), nor when he dressed up at about 6 o’clock in the
morning to go to school and brought his gray bag to Room 310 (Ibid. 25). In fact, at any time on December 13, 1991,
he was not aware that his gray bag ever contained any black short Adidas pants (Ibid). He only found out for the first
time that the black Adidas short pants was alluded to be among the items inside his gray bag late in the afternoon,
when he was in Camp Crame.
Also taking the witness stand for the defense were petitioner’s fraternity brothers, Alberto Leonardo and Robert Chan,
who both testified being with CHITO in the December 12, 1991 party held in Dr. Duran’s place at Greenhills, riding on
the same car going to and coming from the party and dropping the petitioner off the Celestial Marie building after the
party. Both were one in saying that CHITO was wearing a barong tagalog, with t-shirt inside, with short pants and
leather shoes at the time they parted after the party. 7 Rommel Montes, a tenant of Room 310 of the said building, also
testified seeing CHITO between the hours of 1:30 and 2:00 A.M. of December 13, 1991 trying to open the door of
Room 306 while clad in dark short pants and white barong tagalog.
On the other hand, Perla Duran confirmed lending the petitioner the pair of short pants with stripes after the dunking
party held in her father’s house.8 Presented as defense expert witness was Carmelita Vargas, a forensic chemistry
instructor whose actual demonstration in open court showed that chloroform, being volatile, evaporates in thirty (30)
seconds without tearing nor staining the cloth on which it is applied. 9
On December 14, 1994, the trial court rendered its decision 10 convicting petitioner of attempted rape and accordingly
sentencing him, thus:
WHEREFORE, under cool reflection and prescinding from the foregoing, the Court finds the accused Renato D.
Baleros, Jr., alias "Chito", guilty beyond reasonable doubt of the crime of attempted rape as principal and as charged
in the information and hereby sentences him to suffer an imprisonment ranging from FOUR (4) YEARS, TWO (2)
MONTHS AND ONE (1) DAY of Prision Correctional, as Minimum to TEN (10) YEARS of Prision Mayor as Maximum,
with all the accessory penalties provided by law, and for the accused to pay the offended party Martina Lourdes T.
Albano, the sum of P50,000.00 by way of Moral and exemplary damages, plus reasonable Attorney’s fees of
P30,000.00, without subsidiary imprisonment in case of insolvency, and to pay the costs.
SO ORDERED.
Aggrieved, petitioner went to the CA whereat his appellate recourse was docketed as CA-G.R. CR No. 17271.
As stated at the threshold hereof, the CA, in its assailed Decision dated January 13, 1999, affirmed the trial court’s
judgment of conviction, to wit:
WHEREFORE, finding no basis in fact and in law to deviate from the findings of the court a quo, the decision
appealed from is hereby AFFIRMED in toto. Costs against appellant.
SO ORDERED.11
Petitioner moved for reconsideration, but his motion was denied by the CA in its equally assailed resolution of March
31, 1999.12
Petitioner is now with this Court, on the contention that the CA erred -
1. In not finding that it is improbable for petitioner to have committed the attempted rape imputed to him,
absent sufficient, competent and convincing evidence to prove the offense charged.
2. In convicting petitioner of attempted rape on the basis merely of circumstantial evidence since the
prosecution failed to satisfy all the requisites for conviction based thereon.
3. In not finding that the circumstances it relied on to convict the petitioner are unreliable, inconclusive and
contradictory.
4. In not finding that proof of motive is miserably wanting in his case.
5. In awarding damages in favor of the complainant despite the fact that the award was improper and
unjustified absent any evidence to prove the same.
6. In failing to appreciate in his favor the constitutional presumption of innocence and that moral certainty has
not been met, hence, he should be acquitted on the ground that the offense charged against him has not been
proved beyond reasonable doubt.
Otherwise stated, the basic issue in this case turns on the question on whether or not the CA erred in affirming the
ruling of the RTC finding petitioner guilty beyond reasonable doubt of the crime of attempted rape.
After a careful review of the facts and evidence on record in the light of applicable jurisprudence, the Court is disposed
to rule for petitioner’s acquittal, but not necessarily because there is no direct evidence pointing to him as the intruder
holding a chemical-soaked cloth who pinned Malou down on the bed in the early morning of December 13, 1991.
Positive identification pertains essentially to proof of identity and not per se to that of being an eyewitness to the very
act of commission of the crime. There are two types of positive identification. A witness may identify a suspect or
accused as the offender as an eyewitness to the very act of the commission of the crime. This constitutes direct
evidence. There may, however, be instances where, although a witness may not have actually witnessed the very act
of commission of a crime, he may still be able to positively identify a suspect or accused as the perpetrator of a crime
as when, for instance, the latter is the person or one of the persons last seen with the victim immediately before and
right after the commission of the crime. This is the second type of positive identification, which forms part of
circumstantial evidence.13 In the absence of direct evidence, the prosecution may resort to adducing circumstantial
evidence to discharge its burden. Crimes are usually committed in secret and under condition where concealment is
highly probable. If direct evidence is insisted under all circumstances, the prosecution of vicious felons who committed
heinous crimes in secret or secluded places will be hard, if not well-nigh impossible, to prove. 14
Section 4 of Rule 133 of the Rules of Court provides the conditions when circumstantial evidence may be sufficient for
conviction. The provision reads:
Sec. 4. Circumstantial evidence, when sufficient – Circumstantial evidence is sufficient for conviction if –
a) There is more than one circumstance;
b) The facts from which the inferences are derived are proven; and
c) The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt.
In the present case, the positive identification of the petitioner forms part of circumstantial evidence, which, when
taken together with the other pieces of evidence constituting an unbroken chain, leads to only fair and reasonable
conclusion, which is that petitioner was the intruder in question.
We quote with approval the CA’s finding of the circumstantial evidence that led to the identity of the petitioner as such
intruder:
Chito was in the Building when the attack on MALOU took place. He had access to the room of MALOU as Room 307
where he slept the night over had a window which allowed ingress and egress to Room 306 where MALOU stayed.
Not only the Building security guard, S/G Ferolin, but Joseph Bernard Africa as well confirmed that CHITO was
wearing a black "Adidas" shorts and fraternity T-shirt when he arrived at the Building/Unit 307 at 1:30 in the morning of
December 13, 1991. Though it was dark during their struggle, MALOU had made out the feel of her intruder’s apparel
to be something made of cotton material on top and shorts that felt satin-smooth on the bottom.
From CHITO’s bag which was found inside Room 310 at the very spot where witness Renato Alagadan saw CHITO
leave it, were discovered the most incriminating evidence: the handkerchief stained with blue and wet with some kind
of chemicals; a black "Adidas" satin short pants; and a white fraternity T-shirt, also stained with blue. A different
witness, this time, Christian Alcala, identified these garments as belonging to CHITO. As it turned out, laboratory
examination on these items and on the beddings and clothes worn by MALOU during the incident revealed that the
handkerchief and MALOU’s night dress both contained chloroform, a volatile poison which causes first degree burn
exactly like what MALOU sustained on that part of her face where the chemical-soaked cloth had been pressed.
This brings the Court to the issue on whether the evidence adduced by the prosecution has established beyond
reasonable doubt the guilt of the petitioner for the crime of attempted rape.
The Solicitor General maintained that petitioner, by pressing on Malou’s face the piece of cloth soaked in chemical
while holding her body tightly under the weight of his own, had commenced the performance of an act indicative of an
intent or attempt to rape the victim. It is argued that petitioner’s actuation thus described is an overt act contemplated
under the law, for there can not be any other logical conclusion other than that the petitioner intended to ravish Malou
after he attempted to put her to an induced sleep. The Solicitor General, echoing what the CA said, adds that if
petitioner’s intention was otherwise, he would not have lain on top of the victim. 15
Under Article 335 of the Revised Penal Code, rape is committed by a man who has carnal knowledge or intercourse
with a woman under any of the following circumstances: (1) By using force or intimidation; (2) When the woman is
deprived of reason or otherwise unconscious; and (3) When the woman is under twelve years of age or is demented.
Under Article 6, in relation to the aforementioned article of the same code, rape is attempted when the offender
commences the commission of rape directly by overt acts and does not perform all the acts of execution which should
produce the crime of rape by reason of some cause or accident other than his own spontaneous desistance. 16
Expounding on the nature of an attempted felony, the Court, speaking thru Justice Claro M. Recto in People vs.
Lamahang,17 stated that "the attempt which the Penal Code punishes is that which has a logical connection to a
particular, concrete offense; that which is the beginning of the execution of the offense by overt acts of the perpetrator,
leading directly to its realization and consummation." Absent the unavoidable connection, like the logical and natural
relation of the cause and its effect, as where the purpose of the offender in performing an act is not certain, meaning
the nature of the act in relation to its objective is ambiguous, then what obtains is an attempt to commit an
indeterminate offense, which is not a juridical fact from the standpoint of the Penal Code. 18
There is absolutely no dispute about the absence of sexual intercourse or carnal knowledge in the present case. The
next question that thus comes to the fore is whether or not the act of the petitioner, i.e., the pressing of a chemical-
soaked cloth while on top of Malou, constitutes an overt act of rape.1avvphil.net
Overt or external act has been defined as some physical activity or deed, indicating the intention to commit a particular
crime, more than a mere planning or preparation, which if carried out to its complete termination following its natural
course, without being frustrated by external obstacles nor by the voluntary desistance of the perpetrator, will logically
and necessarily ripen into a concrete offense.19
Harmonizing the above definition to the facts of this case, it would be too strained to construe petitioner's act of
pressing a chemical-soaked cloth in the mouth of Malou which would induce her to sleep as an overt act that will
logically and necessarily ripen into rape. As it were, petitioner did not commence at all the performance of any act
indicative of an intent or attempt to rape Malou. It cannot be overemphasized that petitioner was fully clothed and that
there was no attempt on his part to undress Malou, let alone touch her private part. For what reason petitioner wanted
the complainant unconscious, if that was really his immediate intention, is anybody’s guess. The CA maintained that if
the petitioner had no intention to rape, he would not have lain on top of the complainant. Plodding on, the appellate
court even anticipated the next step that the petitioner would have taken if the victim had been rendered unconscious.
Wrote the CA:
The shedding of the clothes, both of the attacker and his victim, will have to come later. His sexual organ is not yet
exposed because his intended victim is still struggling. Where the intended victim is an educated woman already
mature in age, it is very unlikely that a rapist would be in his naked glory before even starting his attack on her. He has
to make her lose her guard first, or as in this case, her unconsciousness. 20
At bottom then, the appellate court indulges in plain speculation, a practice disfavored under the rule on evidence in
criminal cases. For, mere speculations and probabilities cannot substitute for proof required to establish the guilt of an
accused beyond reasonable doubt.21
In Perez vs. Court of Appeals,22 the Court acquitted therein petitioner of the crime of attempted rape, pointing out that:
xxx. In the crime of rape, penetration is an essential act of execution to produce the felony. Thus, for there to be an
attempted rape, the accused must have commenced the act of penetrating his sexual organ to the vagina of the victim
but for some cause or accident other than his own spontaneous desistance, the penetration, however, slight, is not
completed.
xxx xxx xxx
Petitioner’s act of lying on top of the complainant, embracing and kissing her, mashing her breasts, inserting his hand
inside her panty and touching her sexual organ, while admittedly obscene and detestable acts, do not constitute
attempted rape absent any showing that petitioner actually commenced to force his penis into the complainant’s
sexual organ. xxx.
Likewise in People vs. Pancho,23 the Court held:
xxx, appellant was merely holding complainant’s feet when his Tito Onio arrived at the alleged locus criminis. Thus, it
would be stretching to the extreme our credulity if we were to conclude that mere holding of the feet is attempted rape.
Lest it be misunderstood, the Court is not saying that petitioner is innocent, under the premises, of any wrongdoing
whatsoever. The information filed against petitioner contained an allegation that he forcefully covered the face of
Malou with a piece of cloth soaked in chemical. And during the trial, Malou testified about the pressing against her
face of the chemical-soaked cloth and having struggled after petitioner held her tightly and pinned her down. Verily,
while the series of acts committed by the petitioner do not determine attempted rape, as earlier discussed, they
constitute unjust vexation punishable as light coercion under the second paragraph of Article 287 of the Revised Penal
Code. In the context of the constitutional provision assuring an accused of a crime the right to be informed of the
nature and cause of the accusation,24 it cannot be said that petitioner was kept in the dark of the inculpatory acts for
which he was proceeded against. To be sure, the information against petitioner contains sufficient details to enable
him to make his defense. As aptly observed by then Justice Ramon C. Aquino, there is no need to allege malice,
restraint or compulsion in an information for unjust vexation. As it were, unjust vexation exists even without the
element of restraint or compulsion for the reason that this term is broad enough to include any human conduct which,
although not productive of some physical or material harm, would unjustly annoy or irritate an innocent person. 25 The
paramount question is whether the offender’s act causes annoyance, irritation, torment, distress or disturbance to the
mind of the person to whom it is directed.26 That Malou, after the incident in question, cried while relating to her
classmates what she perceived to be a sexual attack and the fact that she filed a case for attempted rape proved
beyond cavil that she was disturbed, if not distressed by the acts of petitioner.
The penalty for coercion falling under the second paragraph of Article 287 of the Revised Penal Code is arresto menor
or a fine ranging from ₱5.00 to ₱200.00 or both.
WHEREFORE, the assailed Decision of the Court of Appeals affirming that of the Regional Trial Court of Manila, is
hereby REVERSED and SET ASIDE and a new one entered ACQUITTING petitioner Renato D. Baleros, Jr. of the
charge for attempted rape. Petitioner, however, is adjudged GUILTY of light coercion and is accordingly sentenced to
30 days of arresto menor and to pay a fine of ₱200.00, with the accessory penalties thereof and to pay the costs.
SO ORDERED.

PEOPLE OF THE PHILIPPINES vs. FREDDIE LIZADA @ FREDIE LIZADA


G.R. Nos. 143468-71 January 24, 2003
CALLEJO, SR., J.:
This is an automatic review of the Decision1 of the Regional Trial Court of Manila, Branch 54, finding accused-
appellant Freddie Lizada guilty beyond reasonable doubt of four (4) counts of qualified rape and meting on him the
death penalty for each count.
I. The Charges
2
Accused-appellant was charged with four (4) counts of qualified rape under four separate Informations. The
accusatory portion of each of the four Informations reads:
"That sometime in August 1998 in the City of Manila, Philippines, the said accused, with lewd designs, did
then and there willfully, unlawfully and feloniously, by means of force, violence and intimidation upon the
person of one ANALIA ORILLOSA y AGOO, by then and there embracing her, kissing and touching her private
parts, thereafter removing her skirt and panty, placing himself on top of her and trying to insert his penis into
her vagina and succeeded in having carnal knowledge with the said ANALIA ORILLOSA y AGOO, against her
will and consent.
Contrary to law.
xxx xxx xxx
That on or about November 5, 1998, in the City of Manila, Philippines, the said accused, with lewd designs,
did then and there willfully, unlawfully and feloniously, by means of force, violence and intimidation upon the
person of one ANALIA ORILLOSA Y AGOO, by then and there embracing her, kissing and touching her
private parts, thereafter removing her skirt and panty, placing himself on top of her and trying to insert his
penis into her vagina and succeeded in having carnal knowledge with the said ANALIA ORILLOSA Y AGOO,
against her will and consent.
Contrary to law.
xxx xxx xxx
That on or about October 22, 1998, in the City of Manila, Philippines, the said accused, with lewd designs, did
then and there willfully, unlawfully and feloniously, by means of force, violence and intimidation upon the
person of one ANALIA ORILLOSA Y AGOO, by then and there embracing her, kissing and touching her
private parts, thereafter removing her skirt and panty, placing himself on top of her and trying to insert his
penis into her vagina and succeeded in having carnal knowledge with the said ANALIA ORILLOSA Y AGOO,
against her will and consent.
Contrary to law.
xxx xxx xxx
That on or about September 15, 1998, in the City of Manila, Philippines, the said accused, with lewd designs,
did then and there willfully, unlawfully and feloniously, by means of force, violence and intimidation upon the
person of one ANALIA ORILLOSA Y AGOO, by then and there embracing her, kissing and touching her
private parts, thereafter removing her skirt and panty, placing himself on top of her and trying to insert his
penis into her vagina and succeeded in having carnal knowledge with the said ANALIA ORILLOSA Y AGOO,
against her will and consent.
Contrary to law."3
The four (4) Informations were docketed as Criminal Cases Nos. 99-171390, 99-171391, 99-171392 and 99-171393,
respectively.
Accused-appellant was arraigned on April 15, 1999, assisted by counsel de parte and entered a plea of not guilty to
each of the charges.4 A joint trial then ensued.
II. Evidence of the Prosecution5
Ricardo Orillosa and his wife, Rose Orillosa, natives of San Isidro, Bohol, had three (3) children, namely: Analia, who
was born on December 18, 1985;6 Jepsy, who was 11 years old, and Rossel, who was nine years old. However, the
couple decided to part ways and live separately. Rose left Bohol and settled in Manila with her young children. She
worked as a waitress to make both ends meet.
In 1994, Rose met accused-appellant. They decided to live together as husband and wife at No. 1252 Jose Abad
Santos Street, Moriones, Tondo, Manila. In 1996, Rose resigned from her job as a waitress. She secured a loan,
bought a truck and used it for her business.
In the meantime, Rose secured a loan anew and used the proceeds thereof to put up a video shop in her house. She
sold Avon products from house to house to augment her income. Whenever she was out of their house, Rossel and
Analia took turns in tending the video shop and attending to customers.
Sometime in 1996, Analia was in her room when accused-appellant entered. He laid on top of her, removed her T-shirt
and underwear. He then inserted his finger in her vagina. He removed his finger and inserted his penis in her vagina.
Momentarily, she felt a sticky substance coming out from his penis. She also felt pain in her sex organ. Satiated,
accused-appellant dismounted but threatened to kill her if she divulged to anyone what he did to her. Accused-
appellant then returned to his room. The incident lasted less than one hour. Petrified by the threats on her life, Analia
kept to herself what happened to her.7
Sometime in August 1997, accused-appellant entered again the room of Analia, placed himself on top of her and held
her legs and arms. He then inserted his finger into her sex organ ("fininger niya ako"). Satiated, accused-appellant left
the room. During the period from 1996 to 1998, accused-appellant sexually abused private complainant two times a
week.
On November 5, 1998, at about 3:00 p.m., Analia was in the sala of their house studying her assignments. Accused-
appellant was also in the sala. Rossel tended the video shop while his mother was away. Analia went into her room
and lay down in bed. She did not lock the door of the room because her brother might enter any time. She wanted to
sleep but found it difficult to do so. Accused-appellant went to his room next to the room of Analia. He, however,
entered the room of Analia. He was wearing a pair of short pants and was naked from waist up. Analia did not mind
accused-appellant entering her room because she knew that her brother, Rossel was around. However, accused-
appellant sat on the side of her bed, placed himself on top of her, held her hands and legs and fondled her breasts.
She struggled to extricate herself. Accused-appellant removed her panty and touched her sex organ. Accused-
appellant inserted his finger into her vagina, extricated it and then inserted his penis into her vagina. Accused-
appellant ejaculated. Analia felt pain in her sex organ. Momentarily, Rossel passed by the room of Analia after drinking
water from the refrigerator, and peeped through the door. He saw accused-appellant on top of Analia. Accused-
appellant saw Rossel and dismounted. Accused-appellant berated Rossel and ordered him to go to his room and
sleep. Rossel did. Accused-appellant then left the room. Analia likewise left the room, went out of the house and
stayed outside for one hour. Rose arrived home at 6:00 p.m. However, Analia did not divulge to her mother what
accused-appellant had just done to her.
On November 9, 1998, at about 3:00 p.m., Rose left the house. Accused-appellant was in the sala of the house
watching television. Analia tended the video shop. However, accused-appellant told Analia to go to the sala. She
refused, as nobody would tend the video shop. This infuriated accused-appellant who threatened to slap and kick her.
Analia ignored the invectives and threats of accused-appellant and stayed in the video shop. When Rose returned, a
heated argument ensued between accused-appellant and Analia. Rose sided with her paramour and hit Analia. This
prompted Analia to shout. "Ayoko na, ayoko na." Shortly thereafter, Rose and Analia left the house on board the
motorcycle driven by her mother in going to Don Bosco Street, Moriones, Tondo, Manila, to retrieve some tapes which
had not yet been returned. When Rose inquired from her daughter what she meant by her statement, "ayoko na,
ayoko na," she told her mother that accused-appellant had been touching the sensitive parts of her body and that he
had been on top of her. Rose was shocked and incensed. The two proceeded to Kagawad Danilo Santos to have
accused-appellant placed under arrest. On November 10, 1998, the two proceeded to the Western Police District
where Analia gave her Affidavit-Complaint to PO1 Carmelita Nocum in the presence of SPO2 Fe H. Avindante. She
related to the police investigator that accused-appellant had touched her breasts and arms in August, 1998,
September 15, 1998, October 22, 1998 and on November 5, 1998, at 3:00 p.m. Analia then submitted herself to
genitalia examination by Dr. Armie Umil, a medico-legal officer of the NBI. The medico-legal officer interviewed Analia,
told him that she was raped in May, 1997 at 3:00 p.m. and November 5, 1998 at 3:00 p.m. 8
Dr. Umil prepared and signed a report on "Living Case No. MO-98-1265" which contained her findings during her
examination on Analia, thus:
"xxx xxx xxx
Fairly nourished, conscious, coherent, cooperative, ambulatory subject. Breasts, developed, hemispherical,
firm. —, brown, 3.0 cms. in diameter. Nipples brown, protruding, 0.7 cms. in diameter.
No extragenital physical injuries noted.
GENITAL EXAMINATION:
Pubic hair, fully grown, moderate. Labia majora and minora, coaptated. Fourchette, tense. Vetibular mucosa,
pinkish. Hymen, tall, thick, intact. Hymenal orifice measures, 1.5 cms. in diameter. Vaginal walls, tight.
Rugosities, prominent.
CONCLUSIONS:
1). No evident sign of extragenital physical injuries noted on the body of the subject at the time of examination.
2). Hymen, intact and its orifice small (1.5 cms. in diameter) as to preclude complete penetration by an
average-sized adult Filipino male organ in full erection without producing any genital injury." 9
Subsequently, Analia told her mother that "mabuti na lang iyong panghihipo lang ang sinabi ko." When Rose
inquired from her daughter what she meant by her statement, Analia revealed to her mother that accused-
appellant had sexually abused her. On December 15, 1998, Analia executed a "Dagdag na Salaysay ng
Paghahabla" and charged accused-appellant with rape.10
III. The Defenses and Evidence of Accused-Appellant
Accused-appellant testified in his defense. He declared that after a month of courtship, he and Rose agreed in 1994 to
live together as husband and wife. He was then a utility worker with the Navotas Branch of the Philippine Banking
Corporation. Rose, on the other hand, was a waitress at the Golden Bird beer house at Rizal Avenue, Manila.
Accused-appellant denied having raped Analia. He claimed that he loved the children of Rose as if they were his own
children. He took care of them, as in fact he cooked and prepared their food before they arrived home from school. At
times, he ironed their school uniforms and bathed them, except Analia who was already big. Analia was hard-headed
because she disobeyed him whenever he ordered her to do some errands. Because of Analia's misbehavior, accused-
appellant and Rose oftentimes quarreled. Rose even demanded that accused-appellant leave their house. Another
irritant in his and Rose's lives were the frequent visits of the relatives of her husband.
Sometime in 1997, accused-appellant was retrenched from his employment and received a separation pay of
P9,000.00 which he used to put up the VHS Rental and Karaoke from which he earned a monthly income of
P25,000.00. While living together, accused-appellant and Rose acquired two colored television sets, two VHS Hi-fi
recorders, one VHS player, one washing machine, one scooter motor, two VHS rewinders, one sala set, one compact
disc player and many other properties.
Accused-appellant ventured that Rose coached her children Analia and Rossel to testify against him and used them to
fabricate charges against him because Rose wanted to manage their business and take control of all the properties
they acquired during their coverture. Also, Rose was so exasperated because he had no job.
IV. The Verdict
On May 29, 2000, the trial court rendered judgment against accused-appellant finding him guilty beyond reasonable
doubt of four (4) counts of rape, defined and penalized in the seventh paragraph, no. 1, Art. 335 of the Revised Penal
Code, and meted on him the death penalty for each count. The dispositive portion of the decision reads:
"From all the evidence submitted by the prosecution, the Court concludes that the accused is guilty beyond
reasonable doubt of the crime charged against him in these four (4) cases, convicts him thereof, and
sentences him to DEATH PENALTY in each and every case as provided for in the seventh paragraph, no. 1,
Article 335 of the Revised Penal Code.
SO ORDERED."11
V. Assigned Errors of the Trial Court
Accused-appellant assailed the decision of the court a quo and averred in his brief that:
"THE TRIAL COURT GRAVELY ERRED IN NOT MAKING A FINDING OF FACT IN ITS DECISION AND
SUCH FAILURE IS A REVERSIBLE ERROR."12
xxx xxx xxx
"THE TRIAL COURT GRAVELY ERRED IN CONVICTING ACCUSED-APPELLANT OF FOUR (4) COUNTS
OF RAPE DESPITE FAILURE OF THE PROSECUTION TO PROVE HIS GUILT BEYOND REASONABLE
DOUBT.13
VI. Findings of the Court
On the first assignment of error, accused-appellant contends that the decision of the trial court is null and void as it
failed to comply with the requirements of Section 14, Article VIII of the 1987 Constitution and Section 1, Rule 36 of the
1997 Rules of Civil Procedure, as amended. He avers that the court a quo made no findings of facts in its decision.
The trial court merely summarized the testimonies of the witnesses of the prosecution and those of accused-appellant
and his witnesses, and forthwith set forth the decretal portion of said decision. The trial court even failed to state in
said decision the factual and legal basis for the imposition of the supreme penalty of death on him. The Solicitor
General, on the other hand, argues that there should be no mechanical reliance on the constitutional provision. Trial
courts may well-nigh synthesize and simplify their decisions considering that courts are harassed by crowded dockets
and time constraints. Even if the trial court did not elucidate the grounds as the legal basis for the penalties imposed,
nevertheless the decision is valid. In any event, the Solicitor General contends that despite the infirmity of the
decision, there is no need to remand the case to the trial court for compliance with the constitutional requirement as
the Court may resolve the case on its merits to avoid delay in the final disposition of the case and afford accused-
appellant his right to a speedy trial.
The contention of accused-appellant is well-taken. Article VIII, paragraph 14 of the 1987 Constitution provides that "no
decision shall be rendered by any court without expressing therein clearly and distinctly the facts and the law on which
it is based." This requirement is reiterated and implemented by Rule 120, Section 2 of the 1985 Rules on Criminal
Procedure, as amended, which reads:
"SEC. 2. Form and contents of judgment. — The judgment must be written in the official language, personally
and directly prepared by the judge and signed by him and shall contain clearly and distinctly a statement of
the facts proved or admitted by the accused and the law upon which the judgment is based.
If it is of conviction, the judgment shall state (a) the legal qualification of the offense constituted by the acts
committed by the accused, and the aggravating or mitigating circumstances attending the commission thereof,
if there are any; (b) the participation of the accused in the commission of the offense, whether as principal,
accomplice, or accessory after the fact; (c) the penalty imposed upon the accused; and (d) the civil liability or
damages caused by the wrongful act to be recovered from the accused by the offended party, if there is any,
unless the enforcement of the civil liability by a separate action has been reserved or waived." 14
The purpose of the provision is to inform the parties and the person reading the decision on how it was reached by the
court after consideration of the evidence of the parties and the relevant facts, of the opinion it has formed on the
issues, and of the applicable laws. The parties must be assured from a reading of the decision of the trial court that
they were accorded their rights to be heard by an impartial and responsible judge. 15 More substantial reasons for the
requirement are:
"For one thing, the losing party must be given an opportunity to analyze the decision so that, if permitted, he
may elevate what he may consider its errors for review by a higher tribunal. For another, the decision if well-
presented and reasoned, may convince the losing party of its merits and persuade it to accept the verdict in
good grace instead of prolonging the litigation with a useless appeal. A third reason is that decisions with a full
exposition of the facts and the law on which they are based, especially those coming from the Supreme Court,
will constitute a valuable body of case law that can serve as useful references and even as precedents in the
resolution of future controversies."16
The trial court is mandated to set out in its decision the facts which had been proved and its conclusions culled
therefrom, as well as its resolution on the issues and the factual and legal basis for its resolution. 17 Trial courts should
not merely reproduce the respective testimonies of witnesses of both parties and come out with its decretal
conclusion.
In this case, the trial court failed to comply with the requirements under the Constitution and the Rules on Criminal
Procedure. It merely summarized the testimonies of the witnesses of the prosecution and of accused-appellant on
direct and cross examinations and merely made referral to the documentary evidence of the parties then concluded
that, on the basis of the evidence of the prosecution, accused-appellant is guilty of four (4) counts of rape and
sentenced him to death, on each count.
The trial court even failed to specifically state the facts proven by the prosecution based on their evidence, the issues
raised by the parties and its resolution of the factual and legal issues, as well as the legal and factual bases for
convicting accused-appellant of each of the crimes charged. The trial court rendered judgment against accused-
appellant with the court declaration in the decretal portion of its decision that it did so based on the evidence of the
prosecution. The trial court swallowed hook, line and sinker the evidence of the prosecution. It failed to explain in its
decision why it believed and gave probative weight to the evidence of the prosecution. Reading the decision of the trial
court, one is apt to conclude that the trial court ignored the evidence of accused-appellant. The trial court did not even
bother specifying the factual and legal bases for its imposition of the supreme penalty of death on accused-appellant
for each count of rape. The trial court merely cited seventh paragraph, no. 1, Article 335 of the Revised Penal Code.
The decision of the trial court is a good example of what a decision, envisaged in the Constitution and the Revised
Rules of Criminal Procedure, should not be.
The Court would normally remand the case to the trial court because of the infirmity of the decision of the trial court,
for compliance with the constitutional provision. However, to avert further delay in the disposition of the cases, the
Court decided to resolve the cases on their merits considering that all the records as well as the evidence adduced
during the trial had been elevated to the Court. 18 The parties filed their respective briefs articulating their respective
stances on the factual and legal issues.
In reviewing rape cases, this Court is guided by the following principles: (1) to accuse a man of rape is easy but to
disprove it is difficult though the accused may be innocent; (2) considering the nature of things, and only two persons
are usually involved in the crime of rape, the testimony of the complainant should be scrutinized with great caution; (3)
the evidence for the prosecution must stand or fall on its own merits and not be allowed to draw strength from the
weakness of the evidence of the defense.19 By the very nature of the crime of rape, conviction or acquittal depends
almost entirely on the credibility of the complainant's testimony because of the fact that usually only the participants
can testify as to its occurrence. However, if the accused raises a sufficient doubt as to any material element of the
crime, and the prosecution is unable to overcome it with its evidence, the prosecution has failed to discharge its
burden of proving the guilt of the accused beyond cavil of doubt and hence, the accused is entitled to an acquittal.
Anent the second assignment of error, we will resolve the same for convenience, as follows:
Re: CRIMINAL CASES NOS. 99-171392 and 99-171393 (covering the crime of rape committed on or about
October 22, 1998 and on or about September 15, 1998)
Accused-appellant avers that the prosecution failed to adduce the requisite quantum of evidence that he raped the
private complainant precisely on September 15, 1998 and October 22, 1998. Moreover, the medical findings of Dr.
Armie Umil show that the hymen of the private complainant was intact and its orifice so small as to preclude complete
penetration by an average size adult Filipino male organ in full erection without producing any genital injury. The
physical evidence belies private complainant's claim of having been deflowered by accused-appellant on four different
occasions. The Office of the Solicitor General, for its part, contends that the prosecution through the private
complainant proved the guilt of accused-appellant for the crime charged on both counts.
The contention of accused-appellant does not persuade the Court. The private complainant testified that since 1996,
when she was only eleven years old, until 1998, for two times a week, accused-appellant used to place himself on top
of her and despite her tenacious resistance, touched her arms, legs and sex organ and inserted his finger and penis
into her vagina. In the process, he ejaculated. Accused-appellant threatened to kill her if she divulged to anyone what
he did to her.20 Although private complainant did not testify that she was raped on September 15, 1998 and October
22, 1998, nevertheless accused-appellant may be convicted for two counts of rape, in light of the testimony of private
complainant.
It bears stressing that under the two Informations, the rape incidents are alleged to have been committed "on or about
September 15, 1998" and "on or about October 22, 1998." The words "on or about" envisage a period, months or even
two or four years before September 15, 1998 or October 22, 1998. The prosecution may prove that the crime charged
was committed on or about September 15, 1998 and on or about October 22, 1998.
In People vs. Gianan,21 this Court affirmed the conviction of accused-appellant of five (5) counts of rape, four of which
were committed in December 1992 (two counts) and one each in March and April, 1993 and in November, 1995 and
one count of acts of lasciviousness committed in December 1992, on a criminal complaint for multiple rape, viz:
"That sometime in November 1995, and some occasions prior and/or subsequent thereto, in the Municipality
of Dasmariñas, Province of Cavite, and within the jurisdiction of this Honorable Court, the above-named
accused, with lewd designs, taking advantage of his superior strength over the person of his own twelve (12)
year old daughter, and by means of force, violence and intimidation, did, then and there, willfully, unlawfully
and feloniously, have repeated carnal knowledge of Myra M. Gianan, against her will and consent, to her
damage and prejudice."22
On the contention of accused-appellant in said case that his conviction for rape in December 1992 was so remote
from the date (November 1995) alleged in the Information, so that the latter could no longer be considered as being
"as near to the actual date at which the offense was committed" as provided under Section 11, Rule 110 of the Rules
on Criminal Procedure, as amended, this Court held:
"Accused-appellant nevertheless argues that his conviction for rape in December 1992 is so remote from the
date (November 1995) alleged in the information, so that the latter could no longer be considered as being "as
near to the actual date at which the offense was committed" as provided under Rule 110, §11.
This contention is also untenable. In People v. Garcia, this Court upheld a conviction for ten counts of rape
based on an information which alleged that the accused committed multiple rape "from November 1990 up to
July 21, 1994," a time difference of almost four years which is longer than that involved in the case at bar. In
any case, as earlier stated, accused-appellant's failure to raise a timely objection based on this ground
constitutes a waiver of his right to object."23
Moreover, when the private complainant testified on how accused-appellant defiled her two times a week from 1996
until 1998, accused-appellant raised nary a whimper of protest. Accused-appellant even rigorously cross-examined
the private complainant on her testimony on direct examination. The presentation by the prosecution, without objection
on the part of accused-appellant, of evidence of rape committed two times a week from 1996 until 1998 (which
includes September 15, 1998 and October 22, 1998) to prove the charges lodged against him constituted a waiver by
accused-appellant of his right to object to any perceived infirmity in, and in the amendment of, the aforesaid
Informations to conform to the evidence adduced by the prosecution.
The barefaced fact that private complainant remained a virgin up to 1998 does not preclude her having been
repeatedly sexually abused by accused-appellant. The private complainant being of tender age, it is possible that the
penetration of the male organ went only as deep as her labia. Whether or not the hymen of private complainant was
still intact has no substantial bearing on accused-appellant's commission of the crime. 24 Even, the slightest penetration
of the labia by the male organ or the mere entry of the penis into the aperture constitutes consummated rape. It is
sufficient that there be entrance of the male organ within the labia of the pudendum.25 In People vs. Baculi, cited
in People vs. Gabayron,26 we held that there could be a finding of rape even if despite repeated intercourse over a
period of four years, the complainant still retained an intact hymen without injury. In these cases, the private
complainant testified that the penis of accused-appellant gained entry into her vagina:
"Fiscal Carisma
(continuing)
After your underwear was removed by the accused, what happened next?
Witness:
He laid himself on top of me, sir.
Q What did he do while he was on top of you?
A He inserted his finger (Finenger nya ako, ipinatong nya yong ano nya)
Q Can you please describe more specifically what is this and I quote "Pinatong nya yong ano nya" and
where did he place it?
A His organ, sir.
Q Where did he place his organ?
A In my organ, sir. (sa ari ko po.)
Q At this very juncture madam witness, what did you feel?
A I felt pain, sir, and I also felt that there was a sticky substance that was coming out, sir."27 (Emphasis
supplied)
We agree with accused-appellant that he is guilty only of two counts of simple rape, instead of qualified rape. The
evidence on record shows that accused-appellant is the common-law husband of Rose, the mother of private
complainant. The private complainant, as of October 1998, was still 13 years old, and under Article 335 as amended
by Republic Act 7659, the minority of the private complainant, concurring with the fact that accused-appellant is the
common-law husband of the victim's mother, is a special qualifying circumstance warranting the imposition of the
death penalty.28 However, said circumstance was not alleged in the Informations as required by Section 8, Rule 110 of
the Revised Rules on Criminal Procedure which was given retroactive effect by this Court because it is favorable to
the accused.29 Hence, even if the prosecution proved the special qualifying circumstance of minority of private
complainant and relationship, the accused-appellant being the common-law husband of her mother, accused-
appellant is guilty only of simple rape. Under the given law, the penalty for simple rape is reclusion perpetua.
Conformably with current jurisprudence, accused-appellant is liable to private complainant for civil indemnity in the
amount of P50,000.00 and moral damages in the amount of P50,000.00 for each count of rape, or a total of
P200,000.00.
Re: Criminal Cases Nos. 99-171390 and 99-171391 (covering the crime committed on or about August 1998
and November 5, 1998)
Accused-appellant avers that (a) the Information in Criminal Case No. 99-171390 is defective because the date of the
offense "on or about August 1998" alleged therein is too indefinite, in violation of Rule 110, Section 11 of the Revised
Rules on Criminal Procedure which reads:
"Sec. 11. Date of commission of the offense. — It is not necessary to state in the complaint or information the
precise date the offense was committed except when it is a material ingredient of the offense. The offense
may be alleged to have been committed on a date as near as possible to the actual date of its commission.
(11a)"30
Accused-appellant further asserts that the prosecution failed to prove that he raped private complainant in August
1998. Hence, he argues, he should be acquitted of said charge. The Office of the Solicitor General, for its part, argued
that the date "on or about August 1998" is sufficiently definite. After all, the date of the commission of the crime of rape
is not an essential element of the crime. The prosecution adduced conclusive proof that accused-appellant raped
private complainant on or about August 1998, as gleaned from her testimony during the trial.
The Court does not agree with accused-appellant. It bears stressing that the precise date of the commission
of the crime of rape is not an essential element of the crime. Failure to specify the exact date when the rape
was committed does not render the Information defective. The reason for this is that the gravamen of the
crime of rape is carnal knowledge of the private complainant under any of the circumstances enumerated
under Article 335 of the Revised Penal Code, as amended. Significantly, accused-appellant did not even
bother to file a motion for a bill of particulars under Rule 116, Section 9 of the Revised Rules on Criminal
Procedure before he was arraigned. Indeed, accused-appellant was duly arraigned under the Information and
entered a plea of not guilty to the charge without any plaint on the sufficiency of the Information. Accused-
appellant even adduced his evidence after the prosecution had rested its case. It was only on appeal to this
Court that accused-appellant questioned for the first time the sufficiency of the Information filed against him. It
is now too late in the day for him to do so. Moreover, in People vs. Salalima,31 this Court held that:
"Failure to specify the exact dates or time when the rapes occurred does not ipso facto make the information
defective on its face. The reason is obvious. The precise date or time when the victim was raped is not an
element of the offense. The gravamen of the crime is the fact of carnal knowledge under any of the
circumstances enumerated under Article 335 of the Revised Penal Code. As long as it is alleged that the
offense was committed at any time as near to the actual date when the offense was committed an information
is sufficient. In previous cases, we ruled that allegations that rapes were committed "before and until October
15, 1994," "sometime in the year 1991 and the days thereafter," "sometime in November 1995 and some
occasions prior and/or subsequent thereto" and "on or about and sometime in the year 1988" constitute
sufficient compliance with Section 11, Rule 110 of the Revised Rules on Criminal Procedure.
In this case, although the indictments did not state with particularity the dates when the sexual assaults took
place, we believe that the allegations therein that the acts were committed "sometime during the month of
March 1996 or thereabout," "sometime during the month of April 1996 or thereabout," "sometime during the
month of May 1996 or thereabout" substantially apprised appellant of the crimes he was charged with since all
the elements of rape were stated in the informations. As such, appellant cannot complain that he was deprived
of the right to be informed of the nature of the cases filed against him. Accordingly, appellant's assertion that
he was deprived of the opportunity to prepare for his defense has no leg to stand on."
The prosecution proved through the testimony of private complainant that accused-appellant raped her two times a
week in 1998. As in Criminal Cases Nos. 99-171392 and 99-171393, accused-appellant is guilty only of simple rape.
As to the crime of rape subject of Criminal Case No. 99-171391, accused-appellant avers that he is not criminally
liable of rape. We agree with accused-appellant. The collective testimony of private complainant and her younger
brother Rossel was that on November 5, 1998, accused-appellant who was wearing a pair of short pants but naked
from waist up, entered the bedroom of private complainant, went on top of her, held her hands, removed her panty,
mashed her breasts and touched her sex organ. However, accused-appellant saw Rossel peeping through the door
and dismounted. He berated Rossel for peeping and ordered him to go back to his room and to sleep. Accused-
appellant then left the room of the private complainant. The testimony of private complainant on direct examination
reads:
"Fiscal Carisma:
Q In between 1996 and August 1997?
A Yes, sir, sometimes two (2) times a week.
Q In November of 1998, do you recall of any unusual experience that happened to you again?
A Yes, sir.
Q What was this unusual experience of yours?
A He laid himself on top of me, sir.
Q You said "he" whom are you referring to?
A Freedie Lizada Jakosalem, sir.
Q The same person you pointed to earlier?
A Yes, sir.
Q You said he placed himself on top of you in November, 1998, what did he do while he was on top of
you?
A He's smashing my breast and he was also touching my arms and my legs, sir.
Q What else if any madam witness?
A He was also touching my sex organ, sir.
Q What else, if any?
Atty. Estorco:
May we take note of the same objection your honor, the prosecution —
Court:
Same ruling. Let the complainant continue considering that she is crying and still young.
Witness:
None else, sir.
Fiscal Carisma:
With what part of his body did he touch your sex organ?
Atty. Estorco:
Your Honor, that is —
Court:
May answer.
Fiscal Carisma:
I will re-propound the question, your honor.
You said that he touched your sex organ, will you tell the court with what part of his body, did he touch
your sex organ?
Witness:
With his hands, sir.
Q What about after November 1998 — was this the last incident, this unusual thing that you experienced
from the hands of the accused was this that last time, the one you narrated in November 1998?
A Yes, sir."32
On cross-examination, the private complainant testified, thus:
"Atty. Balaba:
Q Who was that somebody who entered the room?
A My stepfather Freedie Lizada, sir.
Q He was fully dressed at that time, during the time, is that correct?
A Yes, sir, he was dressed then, sir.
Q And he had his pants on, is that correct?
A He was wearing a short pants, sir.
Q Was it a T-shirt that he had, at that time or a polo shirt?
A He was not wearing any shirt then, sir, he was naked.
Q When you realized that somebody was entering the room were you not afraid?
A No, sir, I was not afraid.
Q What happened when you realized that somebody entered the room, and the one who entered was
your stepfather, Freedie Lizada?
A I did not mind him entering the room because I know that my brother was around but suddenly I felt
that somebody was holding me.
Q He was holding you, where were you when he held you?
A I was in the bed, sir, lying down.
Q You were lying down?
A Yes, sir.
Q What part of the body did the accused Freedie Lizada touched you?
A My two arms, my legs and my breast, sir.
Q Do you mean to tell us that he was holding your two arms and at the same time your legs, is that what
you are trying to tell us?
A He held me first in my arms and then my legs, sir.
Q He held you first by your arms, is that what you are trying to tell us?
Fiscal Carisma:
Already answered your honor, he held the arms and then the legs.
Court:
Already answered.
Atty. Balaba:
Q Your honor, I am just trying to —
Court:
Proceed.
Atty. Balaba:
Q He held your arms with his two hands?
A Only with one hand, sir.
Q Which hand were you touched?
A I do not know which hand, sir.
Q Which arm of yours was held by Freedie Lizada?
A I could not recall, sir.
Q Which side of your body was Freedie Lizada at that time?
A I cannot recall, sir.
Q What was the position of Freedie Lizada when he held your arms?
A He was sitting on our bed, sir.
Q Which side of your bed was Freedie Lizada sitting on?
A I do not know, sir. I cannot recall.
Atty. Balaba:
Can we take a recess your honor?
Court:
How long will it take you to finish your cross?
Atty. Balaba:
We will confront the witness with so many things your honor.
Court:
Yes, that's why I am asking you how long will it take you to finish your cross?
Atty. Balaba:
About another hour, sir.
Court:
So we will be finished by 11:15, proceed.
Atty. Balaba:
You cannot also remember which leg was held by Freedie Lizada?
A I cannot recall, sir.
Q When this happened, did you not shout for help?
A I did not ask for help, I was motioning to resist him, so that he would go out, sir. I was struggling to free
myself from him, sir.
Q And you were not able to extricate yourself from him?
A I was not able to extricate myself, sir.
Q You were struggling with one arm of Lizada holding your arm, and the other hand was holding your leg,
is that what you are trying to tell us?
A No, sir, it's not like that.
Q Could you tell us, what happened, you did not shout for help and you were trying to extricate yourself,
what happened?
A He suddenly went out of the room, sir.
Q Now, he went —
Court:
You did not shout during that time?
A No, your honor."33
Rossel, the nine-year old brother of the private complainant corroborated in part his sister's testimony. He testified on
direct examination, thus:
"Fiscal Carisma: (continuing)
Q Now, on November 2, 1998 do you recall where you were at about 3:00 o'clock?
A I was outside our house, sir.
Q Where was your house again, Mr. witness, at that time? Where was your house at that date, time and
place? At that date and time?
A 1252 Jose Abad Santos, Tondo, Manila, sir.
Court:
Q The same address?
A. Yes, sir.
Fiscal Carisma:
Q On that date, time and place, do your recall where your sister Anna Lea Orillosa was?
A Yes, sir.
Q Where was she?
A She was sleeping, sir.
Q Now, on that date, time and place you said you were outside your house, did you stay the whole
afternoon outside your house?
A No, sir.
Q Where did you go next?
A Inside, sir.
Q For what purpose did you get inside your house?
A Because I was thirsty, sir.
Q So you went to the fridge to get some water?
A Yes, sir.
Q And what happened as you went inside your house to get some water?
A I saw my stepfather removing the panty of my sister and he touched her and then he laid on top of her,
sir.
Q Do you see your stepfather inside the courtroom now?
A Yes, sir.
Q Will you point to him?
A He is the one, sir.
Court Interpreter:
Witness pointing to a male person who when asked answers to the name Freedie Lizada.
Fiscal Carisma:
Q This thing that your father was — that your stepfather did to your elder sister, did you see this before or
after you went to the fridge to get some water?
A I already got water then, sir.
Q What did you do as you saw this thing being done by your stepfather to your elder sister?
A I was just looking at them when he saw me, sir.
Q Who, you saw who? You are referring to the accused Freedie Lizada?
A Yes, sir.
Q So, what did you do as you were seen by your stepfather?
A He scolded me, he shouted at me, he told me something and after that he went to the other room and
slept, sir."34
Rossel testified on cross-examination, thus:
"Q So you got thirsty, is that correct, and went inside the house?
A Yes, sir.
Q And you took a glass of water from the refrigerator?
A Yes, sir.
Q And it was at this time that you saw the accused Freedie Lizada touching your sister?
A Yes, sir.
Q Where was this refrigerator located?
A In front of the room where my sister sleeps, sir.
Q So the door of your sister's room was open?
A Yes, sir.
Q And — okay, you said your sister was sleeping. What was the position of your sister when you said the
accused removed her panty?
A She was lying straight, but she was resisting, sir.
Q Were you noticed by your sister at that time?
A No, sir.
Q And your sister did not call for help at that time?
A No, sir.
Q And all this time you saw the accused doing this, from the refrigerator where you were taking a glass of
water?
A Yes, sir.
Q Did you not say something to the accused?
A No, sir, I was just looking.
Q So your sister was lying down when the accused removed her panty, is that what you are trying to tell
us?
A Yes, sir.
Q And where was the — and the accused saw you when he was removing the panty of your sister?
A Not yet, sir, but after a while he looked at the refrigerator because he might be thirsty.
Q So — you said the accused was touching your sister. What part of her body was touched by the
accused?
A Here, sir.
Court Interpreter:
Witness pointing at the lower portion of the body.
Atty. Balaba:
Q You saw with what hand was the accused touching your sister?
A Yes, sir.
Q What hand was he touching your sister?
A This hand, sir.
Court Interpreter:
Witness raising his right hand.
Atty. Balaba:
Q And which part of your sister's body was the accused touching with his right hand? Your sister's body
was the accused touching with his right hand?
A Her right leg, sir.
Q How about his left hand, what was the accused doing with his left hand?
A Removing her panty, sir.
Q Removing her?
A Panty, sir.
Q Which hand of your sister was being removed with the left hand of the accused?
Court:
Which?
Atty. Balaba:
Which hand, which hand?
Fiscal Carisma:
The question is vague, your honor.
Atty. Balaba:
Because he said that removing the hand —
Fiscal Carisma:
He said removing the panty.
Atty. Balaba:
Is that panty? I'm sorry.
Q So, the accused was touching with his right hand the left thigh of your sister —
Fiscal Carisma:
The right thigh.
Atty. Balaba:
Q Rather the right thigh of your sister and with his left hand removing the panty, is that what you are
telling to tell us?
A Yes, sir.
Q And your sister all the time was trying to — was struggling to get free, is that not correct?
A Yes, sir, she was resisting. (witness demonstrating)
Q She was struggling — was the accused able to remove the panty?
A Yes, sir.
Q And all the time you were there looking with the glass of water in your hand?
A Yes, sir."35
In light of the evidence of the prosecution, there was no introduction of the penis of accused-appellant into the
aperture or within the pudendum of the vagina of private complainant. Hence, accused-appellant is not criminally liable
for consummated rape.36
The issue that now comes to fore is whether or not accused-appellant is guilty of consummated acts of lasciviousness
defined in Article 336 of the Revised Penal Code or attempted rape under Article 335 of the said Code, as amended in
relation to the last paragraph of Article 6 of the Revised Penal Code. In light of the evidence on record, we believe that
accused-appellant is guilty of attempted rape and not of acts of lasciviousness.
Article 336 of the Revised Penal Code reads:
"Art. 336. Acts of Lasciviousness. — Any person who shall commit any act of lasciviousness upon other
persons of either sex, under any of the circumstances mentioned in the preceding article, shall be punished
by prision correccional."37
For an accused to be convicted of acts of lasciviousness, the prosecution is burdened to prove the confluence of the
following essential elements:
"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." 38
"Lewd" is defined as obscene, lustful, indecent, lecherous. It signifies that form of immorality which has relation to
moral impurity; or that which is carried on a wanton manner. 39
The last paragraph of Article 6 of the Revised Penal Code reads:
"There is an attempt when the offender commences the commission of a felony directly by overt acts, and
does not perform all the acts of execution which should produce the felony by reason of some cause or
accident other than his own spontaneous desistance."
The essential elements of an attempted felony are as follows:
"1. The offender commences the commission of the felony directly by overt acts;
2. He does not perform all the acts of execution which should produce the felony;
3. The offender's act be not stopped by his own spontaneous desistance;
4. The non-performance of all acts of execution was due to cause or accident other than his spontaneous
desistance."40
The first requisite of an attempted felony consists of two elements, namely:
"(1) That there be external acts;
(2) Such external acts have direct connection with the crime intended to be committed."41
An overt or external act is defined as some physical activity or deed, indicating the intention to commit a particular
crime, more than a mere planning or preparation, which if carried out to its complete termination following its natural
course, without being frustrated by external obstacles nor by the spontaneous desistance of the perpetrator, will
logically and necessarily ripen into a concrete offense.42 The raison d'etre for the law requiring a direct overt act is that,
in a majority of cases, the conduct of the accused consisting merely of acts of preparation has never ceased to be
equivocal; and this is necessarily so, irrespective of his declared intent. It is that quality of being equivocal that must
be lacking before the act becomes one which may be said to be a commencement of the commission of the crime, or
an overt act or before any fragment of the crime itself has been committed, and this is so for the reason that so long
as the equivocal quality remains, no one can say with certainty what the intent of the accused is. 43 It is necessary that
the overt act should have been the ultimate step towards the consummation of the design. It is sufficient if it was the
"first or some subsequent step in a direct movement towards the commission of the offense after the preparations are
made."44 The act done need not constitute the last proximate one for completion. It is necessary, however, that the
attempt must have a causal relation to the intended crime. 45 In the words of Viada, the overt acts must have an
immediate and necessary relation to the offense.46
Acts constitutive of an attempt to commit a felony should be distinguished from preparatory acts which consist of
devising means or measures necessary for accomplishment of a desired object or end. 47 One perpetrating preparatory
acts is not guilty of an attempt to commit a felony. However, if the preparatory acts constitute a consummated felony
under the law, the malefactor is guilty of such consummated offense. 48 The Supreme Court of Spain, in its decision of
March 21, 1892, declared that for overt acts to constitute an attempted offense, it is necessary that their objective be
known and established or such that acts be of such nature that they themselves should obviously disclose the criminal
objective necessarily intended, said objective and finality to serve as ground for designation of the offense. 49
There is persuasive authority that in offenses not consummated as the material damage is wanting, the nature of the
action intended (accion fin) cannot exactly be ascertained but the same must be inferred from the nature of the acts
executed (accion medio).50 Hence, it is necessary that the acts of the accused must be such that, by their nature, by
the facts to which they are related, by circumstances of the persons performing the same, and b the things connected
therewith, that they are aimed at the consummation of the offense. This Court emphasized in People vs.
Lamahang51 that:
"The relation existing between the facts submitted for appreciation and the offense which said facts are
supposed to produce must be direct; the intention must be ascertained from the facts and therefore it is
necessary, in order to avoid regrettable instances of injustice, that the mind be able to cause a particular
injury."52
If the malefactor does not perform all the acts of execution by reason of his spontaneous desistance, he is not guilty of
an attempted felony.53 The law does not punish him for his attempt to commit a felony. 54 The rationale of the law, as
explained by Viada:
"La Ley, en efecto, no hiere sino a pesar suyo; prefiere impedir el crimen que castigarlo. Si el autor de la tentativa,
despues de haber comenzado a ejecutar el delito por actos exteriores, se detiene, por un sentimiento libre y
espontaneo, en el borde del abismo, salvo esta. Es un llamamiento al remordimiento, a la conciencia, una gracia un
perdon que concede la Ley al arrepentimiento voluntario." 55
As aptly elaborated on by Wharton:
"First, the character of an attempt is lost when its execution is voluntarily abandoned. There is no conceivable
overt act to which the abandoned purpose could be attached. Secondly, the policy of the law requires that the
offender, so long as he is capable of arresting an evil plan, should be encouraged to do so, by saving him
harmless in case of such retreat before it is possible for any evil consequences to ensue. Neither society, nor
any private person, has been injured by his act. There is no damage, therefore, to redress. To punish him after
retreat and abandonment would be to destroy the motive for retreat and abandonment." 56
It must be borne in mind, however, that the spontaneous desistance of a malefactor exempts him from criminal liability
for the intended crime but it does not exempt him from the crime committed by him before his desistance. 57
In light of the facts established by the prosecution, we believe that accused-appellant intended to have carnal
knowledge of private complainant. The overt acts of accused-appellant proven by the prosecution were not mere
preparatory acts. By the series of his overt acts, accused-appellant had commenced the execution of rape which, if
not for his spontaneous desistance, will ripen into the crime of rape. Although accused-appellant desisted from
performing all the acts of execution however his desistance was not spontaneous as he was impelled to do so only
because of the sudden and unexpected arrival of Rossel. Hence, accused-appellant is guilty only of attempted
rape.58 In a case of similar factual backdrop as this case, we held:
"Applying the foregoing jurisprudence and taking into account Article 6 of the Revised Penal Code, the
appellant can only be convicted of attempted rape. He commenced the commission of rape by removing his
clothes, undressing and kissing his victim and lying on top of her. However, he failed to perform all the acts of
execution which should produce the crime of rape by reason of a cause other than his own spontaneous
desistance, i.e., by the timely arrival of the victim's brother. Thus, his penis merely touched Mary Joy's private
organ. Accordingly, as the crime committed by the appellant is attempted rape, the penalty to be imposed on
him should be an indeterminate prison term of six (6) years of prision correccional as minimum to twelve (12)
years of prision mayor as maximum."
The penalty for attempted rape is prision mayor which is two degrees lower than reclusion perpetua.59 Accused-
appellant should be meted an indeterminate penalty the minimum of which should be taken from prision
correccionalwhich has a range of from six months and one day to six years and the maximum of which shall be taken
from the medium period of prision mayor which has a range of from eight years and one day to ten years, without any
modifying circumstance. Accused-appellant is also liable to private complainant for moral damages in the amount of
P25,000.00.
IN LIGHT OF ALL THE FOREGOING, the Decision of the Regional Trial Court of Manila, Branch 54, is SET ASIDE.
Another judgment is hereby rendered as follows:
1. In Criminal Case No. 99-171390, accused-appellant is hereby found guilty beyond reasonable doubt of simple rape
under Article 335 of the Revised Penal Code as amended and is hereby meted the penalty of reclusion perpetua.
Accused-appellant is also hereby ordered to pay private complainant Analia Orillosa the amounts of P50,000.00 by
way of civil indemnity and P50,000.00 by way of moral damages;
2. In Criminal Case No. 99-171391, accused-appellant is hereby found guilty of attempted rape under Article 335 of
the Revised Penal Code as amended in relation to Article 6 of the said Code and is hereby meted an indeterminate
penalty of from six years of prision correccional in its maximum period, as minimum to ten years of prision mayor in its
medium period, as maximum. Accused-appellant is hereby ordered to pay private complainant Analia Orillosa the
amount of P25,000.00 by way of moral damages; and,
3. In Criminal Cases Nos. 99-171392 and 99-171393, accused-appellant is hereby found guilty beyond reasonable
doubt of two counts of simple rape, defined in Article 335 of the Revised Penal Code as amended and is hereby
meted the penalty of reclusion perpetua for each count. Accused-appellant is hereby ordered to pay to private
complainant Analia Orillosa the amount of P50,000.00 by way of civil indemnity and the amount of P50,000.00 by way
of moral damages for each count, or a total amount of P200,000.00.
SO ORDERED.

FE ABELLA vs. PEOPLE OF THE PHILIPPINES


G.R. No. 198400 October 7, 2013
REYES, J.:
This is a Petition for Review on Certiorari1 from the Decision2 and Resolution3 dated October 26, 2010 and August 11,
2011, respectively, of the Court of Appeals CA) in CA-G.R. CR No. 00336-MIN affirming with modifications the
conviction4 by the Regional Trial Court RTC) of Misamis Oriental, Cagayan de Oro City, Branch 39 of Fe Abella y
Perpetua petitioner) for the crime of frustrated homicide committed against his younger brother, Benigno Abella
Benigno). The RTC sentenced the petitioner to suffer an indeterminate penalty of six 6) years and one 1) day to eight
8) years of prision mayor as minimum, to ten 10) years and one 1) day to twelve 12) years of prision mayor as
maximum, and to pay Benigno ₱100,000.00 as consequential damages, ₱10,000.00 for the medical expenses he
incurred, plus the costs of suit.5 The CA concurred with the RTC’s factual findings. However, the CA modified the
penalty imposed to six (6) months and one (1) day to six (6) years of prision correccional as minimum, to eight (8)
years and one (1) day of prision mayor in its medium period as maximum. The CA also deleted the RTC’s award in
favor of Benigno of (a) ₱10,000.00 as actual damages corresponding to the medical expenses allegedly incurred; and
(b) ₱100,000.00 as consequential damages. In lieu of the preceding, the CA ordered the petitioner to pay Benigno
₱30,000.00 as moral damages and ₱10,000.00 as temperate damages. 6
Antecedent Facts
On October 7, 1998, the petitioner, who at times worked as a farmer, baker and trisicad driver, was charged with
frustrated homicide in an Information7 which reads:
That on or about September 6, 1998, at 11:00 o’clock in the evening, more or less, at Sitio Puli, Canitoan, Cagayan de
Oro City, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, without any
justifiable cause, did then and there willfully, unlawfully and feloniously and with intent to kill, attack, assault, harm and
hack one, BENIGNO ABELLA y PERPETUA, with the use of a scythe, hitting the latter’s neck, thereby inflicting the
injury described below, to wit:
• hacking wound left lateral aspect neck; and
• incised wound left hand dorsal aspect thus performing all the acts of execution which would produce the
crime of homicide as a consequence, but nevertheless, did not produce it by reason of some cause or causes
independent of the will of the accused, that is the timely and able intervention of the medical attendance
rendered to the said victim.
Contrary to Article 249 in relation to 250 of the RPC. 8
After the Information was filed, the petitioner remained at large and was only arrested by agents of the National
Bureau of Investigation on October 7, 2002.9
During the arraignment, the petitioner pleaded not guilty to the crime charged. Pre-trial and trial thus proceeded.
The Prosecution offered the testimonies of: (a) Benigno; 10 (b) Amelita Abella11 (Amelita), Benigno’s wife; (c) Alejandro
Tayrus12 (Alejandro), with whom the petitioner had a quarrel; and (d) Dr. Roberto Ardiente 13 (Dr. Ardiente), a surgeon
from J.R. Borja Memorial Hospital, Cagayan de Oro City, who rendered medical assistance to Benigno after the latter
was hacked by the petitioner.
The Prosecution evidence established that on September 6, 1998, at around 11:00 p.m., Benigno was watching
television in his house. A certain Roger Laranjo arrived and asked Benigno to pacify the petitioner, who was stirring
trouble in a nearby store. Benigno and Amelita found the petitioner fighting with Alejandro and a certain Dionisio
Ybañes (Dionisio). Benigno was able to convince the petitioner to go home. Benigno and Amelita followed suit and
along the way, they dropped by the houses of Alejandro and Dionisio to apologize for the petitioner’s conduct.
Benigno and Amelita were in Alejandro’s house when the petitioner arrived bringing with him two scythes, one in each
of his hands. Benigno instructed Alejandro and Dionisio to run away and the latter two complied. The petitioner wanted
to enter Alejandro’s house, but Benigno blocked his way and asked him not to proceed. The petitioner then pointed the
scythe, which he held in his left hand, in the direction of Benigno’s stomach, while the scythe in the right hand was
used to hack the latter’s neck once.14 Benigno fell to the ground and was immediately taken to the hospital 15 while the
petitioner ran to chase Alejandro.16 Benigno incurred an expense of more than ₱10,000.00 for hospitalization, but lost
the receipts of his bills.17 He further claimed that after the hacking incident, he could no longer move his left hand and
was thus deprived of his capacity to earn a living as a carpenter. 18
Dr. Ardiente testified that Benigno sustained: (a) a "hacking wound left lateral aspect neck 11 cm"; and (b) an "incised
wound left hand dorsal aspect 4 cm".19 Benigno was initially confined in the hospital on September 6, 1998 and was
discharged on September 23, 1998.20 From Dr. Ardiente’s recollection, since the scythe used in the hacking was not
sterile, complications and infections could have developed from the big and open wounds sustained by Benigno, but
fortunately did not.21
The defense offered the testimonies of: (a) the petitioner; 22 (b) Fernando Fernandez23 (Fernando), a friend of the
petitioner; and (c) Urbano Cabag24 (Urbano).
The petitioner relied on denial and alibi as defenses. He claimed that from September 2, 1998 to October 2002, he
and his family resided in Buenavista, Agusan del Norte. Sitio Puli, Canitoan, Cagayan de Oro City, where the hacking
incident occurred, is about four (4) hours drive away. Fernando testified that on September 6, 1998, he saw the
petitioner gathering woods to make a hut.25 Later in the evening, at around 5:00 p.m., Urbano spotted the petitioner
drinking tuba in the store of Clarita Perpetua.26
The RTC Ruling
On July 13, 2006, the RTC convicted the petitioner of the crime charged. The fallo of the Judgment 27 reads:
WHEREFORE, in view of the foregoing and finding the evidence presented by the prosecution sufficient to prove the
guilt of the [petitioner] beyond reasonable doubt, judgment is rendered finding petitioner Fe Abella GUILTY beyond
reasonable doubt of the crime of Frustrated Homicide as defined and penalized by Article 249 in relation to Article 50
and Art. 6 of the Revised Penal Code. Accordingly, petitioner Fe Abella is hereby sentenced to suffer an indeterminate
penalty of Six (6) years and One (1) day to Eight (8) years of prision mayor as minimum to Ten (10) years and One (1)
day to Twelve (12) years of prision mayor as maximum; to indemnify offended-party complainant Benigno Abella the
sum of Ten Thousand ([P]10,000.00) Pesos for the medical expenses incurred; to pay the sum of ONE HUNDRED
THOUSAND ([P]100,000.00) PESOS as consequential damages and to pay the costs.
SO ORDERED.28
The RTC found the petitioner’s defenses of alibi and denial as weak. No disinterested witnesses were presented to
corroborate the petitioner’s claim that he was nowhere at the scene of the hacking incident on September 6, 1998.
Fernando and Urbano’s testimonies were riddled with inconsistencies. The RTC accorded more credence to the
averments of the prosecution witnesses, who, without any ill motives to testify against the petitioner, positively,
categorically and consistently pointed at the latter as the perpetrator of the crime. Besides, medical records show that
Benigno sustained a wound in his neck and his scar was visible when he testified during the trial.
The RTC awarded ₱10,000.00 as actual damages to Benigno for the medical expenses he incurred despite the
prosecution’s failure to offer receipts as evidence. The petitioner was likewise ordered to pay ₱100,000.00 as
consequential damages, but the RTC did not explicitly lay down the basis for the award.
The petitioner then filed an appeal29 before the CA primarily anchored on the claim that the prosecution failed to prove
by clear and convincing evidence the existence of intent to kill which accompanied the single hacking blow made on
Benigno’s neck. The petitioner argued that the hacking was merely accidental especially since he had no motive
whatsoever which could have impelled him to hurt Benigno, and that the infliction of merely one wound negates intent
to kill.
The CA Ruling
On October 26, 2010, the CA rendered the herein assailed Decision 30 affirming the petitioner’s conviction for the crime
of frustrated homicide ratiocinating that:
Intent to kill may be proved by evidence of: (a) motive; (b) the nature or number of weapons used in the commission of
the crime; (c) the nature and number of wounds inflicted on the victim; (d) the manner the crime was committed; and
(e) the words uttered by the offender at the time the injuries are inflicted by him on the victim.
Here, the intent to kill was sufficiently proven by the Prosecution. The petitioner attacked Benigno with deadly
weapons, two scythes. The petitioner’s blow was directed to the neck of Benigno. The attack on the unarmed and
unsuspecting Benigno was swift and sudden. The latter had no means, and no time, to defend himself.
Dr. Roberto Ardiente, Jr., who attended and issued the Medical Certificate, testified that Benigno suffered from a hack
wound on the left neck, and an incised wound on the left hand palm. He said that the wounds might have been caused
by a sharp, pointed and sharp-edged instrument, and may have resulted to death without proper medical attendance.
Benigno was hospitalized for about a month because of the injuries. The location of the wound (on the neck) shows
the nature and seriousness of the wound suffered by Benigno. It would have caused his death, had it not been for the
timely intervention of medical science.31 (Citations omitted and emphasis supplied)
However, the CA modified the sentence to "imprisonment of six (6) months and one (1) day to six (6) years of prision
correccional as minimum, to eight (8) years and one (1) day of prision mayor in its medium period, as
maximum."32 The CA explained that:
Article 249 of the Revised Penal Code provides that the penalty for the crime of consummated homicide is reclusion
temporal , or twelve (12) years and one (1) day to twenty (20) years. Under Article 50 of the same Code, the penalty
for a frustrated crime is one degree lower than that prescribed by law. Thus, frustrated homicide is punishable by
prision mayor , or six (6) years and one (1) day to twelve (12) years. Applying the Indeterminate Sentence Law, absent
any mitigating or aggravating circumstances, the maximum of the indeterminate penalty should be taken from the
medium period of prision mayor . To determine the minimum of the indeterminate penalty, prision mayor should be
reduced by one degree, which is prision correccional , with a range of six (6) months and one (1) day to six (6) years.
The minimum of the indeterminate penalty may be taken from the full range of prision correccional. 33(Citation omitted)
The CA also deleted the RTC’s order for the payment of actual and consequential damages as there were no
competent proofs to justify the awards. The CA instead ruled that Benigno is entitled to ₱30,000.00 as moral damages
and ₱10,000.00 as temperate damages,34 the latter being awarded when some pecuniary loss has been incurred, but
the amount cannot be proven with certainty.35
Issue
36
Hence, the instant Petition for Review on Certiorari anchored on the issue of whether or not the RTC and the CA
erred in rendering judgments which are not in accordance with law and applicable jurisprudence and which if not
corrected, will cause grave injustice and irreparable damage to the petitioner. 37
In support thereof, the petitioner avers that the courts a quo failed to appreciate relevant facts, which if considered,
would justify either his acquittal or the downgrading of his conviction to less serious physical injuries. The petitioner
points out that after the single hacking blow was delivered, he ran after Alejandro and Dionisio leaving Benigno
behind. Had there been an intent to kill on his part, the petitioner could have inflicted more wounds since at that time,
he had two scythes in his hands. Further, the CA erred in finding that the hacking blow was sudden and unexpected,
providing Benigno with no opportunity to defend himself. Benigno saw the petitioner arriving with weapons on hand.
Benigno could not have been unaware of the danger facing him, but he knew that the petitioner had no intent to hurt
him. Benigno thus approached the petitioner, but in the process, the former was accidentally hit with the latter’s
scythe.
The petitioner also cites Pentecostes, Jr. v. People38 where this Court found the downgrading of a conviction from
attempted murder to physical injuries as proper considering that homicidal intent was absent when the accused shot
the victim once and did not hit a vital part of the latter’s body. 39
Further, as per Dr. Ardiente’s testimony, no complications resulted from Benigno’s hacking wound in the neck and
incised wound in the hand. Such being the case, death could not have resulted. The neck wound was not "so
extensive because it did not involve a big blood vessel on its vital structure" while the incised wound in the hand,
which only required cleansing and suturing, merely left a slight scarring. 40 Besides, Benigno was only confined for
seventeen (17) days at the hospital and the injuries he sustained were in the nature of less serious ones.
In its Comment,41 the Office of the Solicitor General (OSG) seeks the dismissal of the instant petition. The OSG
stresses that the petitioner raises factual issues, which call for a re-calibration of evidence, hence, outside the ambit of
a petition filed under Rule 45 of the Rules of Court. Moreover, the petitioner’s argument that the development of
infections or complications on the wounds is a necessary factor to determine the crime committed is specious. The
petitioner’s intent to kill Benigno can be clearly inferred from the nature of the weapon used, the extent of injuries
inflicted and the circumstances of the aggression. Benigno could have died had there been no timely medical
assistance rendered to him.
If it were the petitioner’s wish to merely get Benigno out of the way to be able to chase Alejandro and Dionisio, a kick,
fist blow, push, or the use of a less lethal weapon directed against a non-vital part of the body would have been
sufficient. However, the petitioner hacked Benigno’s neck with an unsterile scythe, leaving behind a big, open and
gaping wound.
This Court’s Ruling
The instant petition raises factual issues which are beyond the scope of a petition filed under Rule 45 of the Rules of
Court.
Century Iron Works, Inc. and Benito Chua v. Eleto B. Bañas 42 is instructive anent what is the subject of review in a
petition filed under Rule 45 of the Rules of Court, viz:
A petition for review on certiorari under Rule 45 is an appeal from a ruling of a lower tribunal on pure questions of law.
It is only in exceptional circumstances that we admit and review questions of fact.
A question of law arises when there is doubt as to what the law is on a certain state of facts, while there is a question
of fact when the doubt arises as to the truth or falsity of the alleged facts. For a question to be one of law, the question
must not involve an examination of the probative value of the evidence presented by the litigants or any of them. The
resolution of the issue must rest solely on what the law provides on the given set of circumstances. Once it is clear
that the issue invites a review of the evidence presented, the question posed is one of fact. 43(Citations omitted)
In the case at bar, the challenge is essentially posed against the findings of the courts a quo that the petitioner had a
homicidal intent when he hacked Benigno’s neck with a scythe and that the wounds the latter sustained could have
caused his death had there been no prompt medical intervention. These questions are patently factual in nature
requiring no less than a re-calibration of the contending parties’ evidence.
It is settled that the general rule enunciated in Century Iron Works, Inc. and Benito Chua admits of exceptions, among
which is, "when the judgment of the CA is premised on a misapprehension of facts or a failure to notice certain
relevant facts that would otherwise justify a different conclusion x x x." 44 However, the factual backdrop and
circumstances surrounding the instant petition do not add up to qualify the case as falling within the exceptions.
Even if this Court were to be exceptionally liberal and allow a review of factual issues, still, the instant petition is
susceptible to denial.
To successfully prosecute the crime of homicide, the following elements must be proved beyond reasonable doubt: (1)
that a person was killed; (2) that the accused killed that person without any justifying circumstance; (3) that the
accused had the intention to kill, which is presumed; and (4) that the killing was not attended by any of the qualifying
circumstances of murder, or by that of parricide or infanticide. Moreover, the offender is said to have performed all the
acts of execution if the wound inflicted on the victim is mortal and could cause the death of the victim without medical
intervention or attendance.45
In cases of frustrated homicide, the main element 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. And 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.46
The petitioner now wants to impress upon this Court that he had no motive to attack, much less kill Benigno. The
petitioner likewise invokes the doctrine in Pentecostes, Jr. 47 to argue that homicidal intent is absent in a case where
the accused shot the victim only once when there was an opportunity to do otherwise. The petitioner belabors his
claim that had he intended to kill Benigno, he could have repeatedly hacked him to ensure the latter’s death, and not
leave right after the blow to chase Alejandro instead.
The analogy is flawed.
In Pentecostes, Jr., the victim was shot only once in the arm, a non vital part of the body. The attending physician
certified that the injury would require medical attendance for ten days, but the victim was in fact promptly discharged
from the hospital the following day.
In Benigno’s case, he sustained an 11-centimeter long hacking wound in the neck and a 4-cm long incised wound in
his left hand caused by the unsterile scythe used by the petitioner. Dr. Ardiente testified that "it is possible to have
complications resulting from these injuries because the wounds were extensive and they were big and they were open
wounds, so there is a possibility of infections resulting from these kinds of wounds, and the instrument used was not a
sterile instrument contaminated with other things." 48 No complications developed from Benigno’s wounds which could
have caused his death, but he was confined in the hospital for a period of 17 days from September 6, 1998 to
September 23, 1998.
From the foregoing, this Court concludes and thus agrees with the CA that the use of a scythe against Benigno’s neck
was determinative of the petitioner’s homicidal intent when the hacking blow was delivered. It does not require
imagination to figure out that a single hacking blow in the neck with the use of a scythe could be enough to decapitate
a person and leave him dead. While no complications actually developed from the gaping wounds in Benigno’s neck
and left hand, it perplexes logic to conclude that the injuries he sustained were potentially not fatal considering the
period of his confinement in the hospital. A mere grazing injury would have necessitated a lesser degree of medical
attention.
This Court likewise finds wanting in merit the petitioner’s claim that an intent to kill is negated by the fact that he
pursued Alejandro instead and refrained from further hacking Benigno. What could have been a fatal blow was already
delivered and there was no more desistance to speak of. Benigno did not die from the hacking incident by reason of a
timely medical intervention provided to him, which is a cause independent of the petitioner’s will.1âwphi1
All told, this Court finds no reversible error committed by the CA in affirming the RTC’s conviction of the petitioner of
the crime charged.
The Court modifies the award of damages.
As to the civil liability of the petitioner, the CA was correct in deleting the payment of the consequential damages
awarded by the trial court in the absence of proof thereof. Where the amount of actual damages cannot be determined
because of the absence of supporting receipts but entitlement is shown by the facts of the case, temperate damages
may be awarded.49 In the instant case, Benigno certainly suffered injuries, was actually hospitalized and underwent
medical treatment. Considering the nature of his injuries, it is prudent to award temperate damages in the amount of
₱25,000.00, in lieu of actual damages.50
Furthermore, we find that Benigno is entitled to moral damages in the amount of ₱25,000.00. 51 There is sufficient
basis to award moral damages as ordinary human experience and common sense dictate that such wounds inflicted
on Benigno would naturally cause physical suffering, fright, serious anxiety, moral shock, and similar injury. 52
WHEREFORE the instant petition is DENIED. The Decision and Resolution, dated October 26, 2010 and August 11
2011, respectively, of the Court of Appeals in CA-G.R. CR No. 00336-MIN are AFFIRMED with MODIFICATIONS. The
petitioner, Fe Abella y Perpetua is ORDERED TO PAY the offended party moral damages in the amount of ₱25,000.00
and temperate damages in the amount of ₱25,000.00. Further, the monetary awards for damages shall be subject to
interest at the legal rate of six percent ( 6%) p r annum from the date of finality of this Decision until fully paid. 53
SO ORDERED.

PEOPLE OF THE PHILIPPINES vs. REGIE LABIAGA


G.R. No. 202867 July 15, 2013
CARPIO, J.:
The Case
1
Before the Court is an appeal assailing the Decision dated 18 October 2011 of the Court of Appeals-Cebu (CA-Cebu)
in CA-G.R. CEB CR-HC No. 01000. The CA-Cebu affirmed with modification the Joint Decision 2 dated 10 March 2008
of the Regional Trial Court of Barotac Viejo, Iloilo, Branch 66 (RTC), in Criminal Case No. 2001-155) convicting Regie
Labiaga alias "Banok" (appellant) of murder and Criminal Case No. 2002-1777 convicting appellant of frustrated
murder.
The Facts
In Criminal Case No. 2001-1555, appellant, together with a certain Alias Balatong Barcenas and Cristy Demapanag
(Demapanag), was charged with Murder with the Use of Unlicensed Firearm under an Information 3 which reads:
That on or about December 23, 2000 in the Municipality of Ajuy, Province of Iloilo, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and helping one another,
armed with unlicensed firearm, with deliberate intent and decided purpose to kill, by means of treachery and with
evident premeditation, did then and there willfully, unlawfully and feloniously attack, assault and shoot JUDY CONDE
alias ‘JOJO’ with said unlicensed firearm, hitting her and inflicting gunshot wounds on the different parts of her breast
which caused her death thereafter.
CONTRARY TO LAW.
The same individuals were charged with Frustrated Murder with the Use of Unlicensed Firearm in Criminal Case No.
2002-1777, under an Information4 which states:
That on or about December 23, 2000 in the Municipality of Ajuy, Province of Iloilo, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and helping one another,
armed with unlicensed firearm, with deliberate intent and decided purpose to kill, by means of treachery and with
evident premeditation, did then and there willfully, unlawfully and feloniously attack, assault and shoot Gregorio Conde
with said unlicensed firearm, hitting him on the posterior aspect, middle third right forearm 1 cm. In diameter; thereby
performing all the acts of execution which would produce the crime of Murder as a consequence, but nevertheless did
not produce it by reason of causes independent of the will of the accused; that is by the timely and able medical
assistance rendered to said Gregorio Conde which prevented his death.
CONTRARY TO LAW.
Alias Balatong Barcenas remained at large. Both appellant and Demapanag pled not guilty in both cases and joint trial
ensued thereafter. The prosecution presented four witnesses: Gregorio Conde, the victim in Criminal Case No. 2002-
1777; Glenelyn Conde, his daughter; and Dr. Jeremiah Obañana and Dr. Edwin Jose Figura, the physicians at the
Sara District Hospital where the victims were admitted. The defense, on the other hand, presented appellant,
Demapanag, and the latter’s brother, Frederick.
Version of the prosecution
The prosecution’s version of the facts is as follows: At around 7:00 p.m. on 23 December 2000, Gregorio Conde, and
his two daughters, Judy and Glenelyn Conde, were in their home at Barangay Malayu-an, Ajuy, Iloilo. Thereafter,
Gregorio stepped outside. Glenelyn was in their store, which was part of their house.
Shortly thereafter, appellant, who was approximately five meters away from Gregorio, shot the latter. Gregorio called
Judy for help. When Judy and Glenelyn rushed to Gregorio’s aid, appellant shot Judy in the abdomen. The two other
accused were standing behind the appellant. Appellant said, "she is already dead," and the three fled the crime scene.
Gregorio and Judy were rushed to the Sara District Hospital. Judy was pronounced dead on arrival while Gregorio
made a full recovery after treatment of his gunshot wound.
Dr. Jeremiah Obañana conducted the autopsy of Judy. His report stated that her death was caused by
"cardiopulmonary arrest secondary to Cardiac Tamponade due to gunshot wound." 5
Dr. Jose Edwin Figura, on the other hand, examined Gregorio after the incident. He found that Gregorio sustained a
gunshot wound measuring one centimeter in diameter in his right forearm and "abrasion wounds hematoma
formation" in his right shoulder.6
Version of the defense
Appellant admitted that he was present during the shooting incident on 23 December 2000. He claimed, however, that
he acted in self-defense. Gregorio, armed with a shotgun, challenged him to a fight. He attempted to shoot appellant,
but the shotgun jammed. Appellant tried to wrest the shotgun from Gregorio, and during the struggle, the shotgun
fired. He claimed that he did not know if anyone was hit by that gunshot.
Demapanag claimed that at the time of the shooting, he was in D&D Ricemill, which is approximately 14 kilometers
away from the crime scene. This was corroborated by Frederick, Demapanag’s brother.
The Ruling of the RTC
In its Joint Decision, the RTC acquitted Demapanag due to insufficiency of evidence. Appellant, however, was
convicted of murder and frustrated murder. The dispositive portion of the Joint Decision reads:
WHEREFORE, in light of the foregoing, the court hereby finds the accused Regie Labiaga @ "Banok" GUILTY beyond
reasonable doubt of the Crime of Murder in Crim. Case No. 2001-1555 and hereby sentences the said accused to
reclusion perpetua together with accessory penalty provided by law, to pay the heirs of Judy Conde ₱50,000.00 as
civil indemnity, without subsidiary imprisonment in case of insolvency and to pay the costs.
In Crim. Case No. 2002-1777, the court finds accused Regie Labiaga @ "Banok" GUILTY beyond reasonable doubt of
the crime of Frustrated Murder and hereby sentences the said accused to a prison term ranging from six (6) years and
one (1) day of prision mayor as minimum to ten (10) years and one (1) day of reclusion temporal as maximum,
together with the necessary penalty provided by law and without subsidiary imprisonment in case of insolvency and to
pay the costs.
Accused’s entire period of detention shall be deducted from the penalty herein imposed when the accused serves his
sentence.
For lack of sufficient evidence, accused Cristy Demapanag is acquitted of the crimes charged in both cases. The
Provincial Warden, Iloilo Rehabilitation Center, Pototan, Iloilo is hereby directed to release accused Cristy Demapanag
from custody unless he is being held for some other valid or lawful cause.
SO ORDERED.7
The Ruling of the CA-Cebu
Appellant impugned the RTC’s Joint Decision, claiming that "the RTC gravely erred in convicting the appellant of the
crime charged despite failure of the prosecution to prove his guilt beyond reasonable doubt." 8 The CA-Cebu, however,
upheld the conviction for murder and frustrated murder.
The CA-Cebu also modified the Joint Decision by imposing the payment of moral and exemplary damages in both
criminal cases. The CA-Cebu made a distinction between the civil indemnity awarded by the RTC in Criminal Case
No. 2001-1555 and the moral damages. The CA-Cebu pointed out that:
The trial court granted the amount of ₱50,000.00 as civil indemnity in Criminal Case No. 2001-1555. It did not award
moral damages. Nonetheless, the trial court should have awarded both, considering that they are two different kinds of
damages. For death indemnity, the amount of ₱50,000.00 is fixed "pursuant to the current judicial policy on the matter,
without need of any evidence or proof of damages. Likewise, the mental anguish of the surviving family should be
assuaged by the award of appropriate and reasonable moral damages." 9
The dispositive portion of the Decision of the CA-Cebu reads:
WHEREFORE, premises considered, the appeal is DENIED. The Joint Decision dated March 10, 2008 of the Regional
Trial Court, Branch 66, in Barotac Viejo, Iloilo is AFFIRMED with MODIFICATIONS. The dispositive portion of the said
Joint Decision should now read as follows:
WHEREFORE, in light of the foregoing, the court hereby finds the accused Regie Labiaga @ "Banok" GUILTY beyond
reasonable doubt of the crime of Murder in Crim. Case No. 2001-1555 and hereby sentences the said accused to
reclusion perpetua together with the accessory penalty provided by law, to pay the heirs of Judy Conde ₱50,000.00 as
civil indemnity, ₱50,000.00 as moral damages and ₱25,000.00 as exemplary damages, without subsidiary
imprisonment in case of insolvency and to pay the costs.
In Crim. Case No. 2002-1777 the court finds accused Regie Labiaga @ "Banok" GUILTY beyond reasonable doubt of
the crime of Frustrated Murder and hereby sentences the said accused to suffer the indeterminate penalty of eight (8)
years and one (1) day of prision mayor, as minimum, to fourteen (14) years and eight (8) months of reclusion
temporal, as maximum, together with the accessory penalty provided by law, to pay Gregorio Conde ₱25,000.00 as
moral damages and ₱25,000.00 as exemplary damages, without subsidiary imprisonment in case of insolvency and to
pay the costs Accused(’s) entire period of detention shall be deducted from the penalty herein imposed when the
accused serves his sentence.
For lack of sufficient evidence, accused Cristy Demapanag is acquitted of the crime(s) charged in both cases. The
Provincial Warden, Iloilo Rehabilitation Center, Pototan, Iloilo is hereby directed to release accused Cristy Demapanag
from custody unless he is being held for some other valid or lawful cause.
SO ORDERED.
SO ORDERED.10
Hence, this appeal.
The Ruling of the Court
Our review of the records of Criminal Case No. 2002-1777 convinces us that appellant is guilty of attempted murder
and not frustrated murder. We uphold appellant’s conviction in Criminal Case No. 2001-1555 for murder, but modify
the civil indemnity awarded in Criminal Case No. 2001-1555, as well as the award of moral and exemplary damages in
both cases.
Justifying circumstance of self-defense
Appellant’s feeble attempt to invoke self-defense in both cases was correctly rejected by the RTC and the CA-Cebu.
This Court, in People v. Damitan,11 explained that:
When the accused admits killing a person but pleads self-defense, the burden of evidence shifts to him to prove by
clear and convincing evidence the elements of his defense. However, appellant’s version of the incident was
uncorroborated. His bare and self-serving assertions cannot prevail over the positive identification of the two (2)
principal witnesses of the prosecution.12
Appellant’s failure to present any other eyewitness to corroborate his testimony and his unconvincing demonstration of
the struggle between him and Gregorio before the RTC lead us to reject his claim of self-defense. Also, as correctly
pointed out by the CA-Cebu, appellant’s theory of self-defense is belied by the fact that:
x x x The appellant did not even bother to report to the police Gregorio’s alleged unlawful aggression and that it was
Gregorio who owned the gun, as appellant claimed. And, when appellant was arrested the following morning, he did
not also inform the police that what happened to Gregorio was merely accidental. 13
Appellant’s claim that he did not know whether Gregorio was hit when the shotgun accidentally fired is also
implausible.
In contrast, we find that the Condes’ account of the incident is persuasive. Both the CA-Cebu and the RTC found that
the testimonies of the Condes were credible and presented in a clear and convincing manner. This Court has
consistently put much weight on the trial court’s assessment of the credibility of witnesses, especially when affirmed
by the appellate court.14 In People v. Mangune,15 we stated that:
It is well settled that the evaluation 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 first hand and to note their demeanor,
conduct, and attitude under grilling examination. These are important in determining the truthfulness of witnesses and
in unearthing the truth, especially in the face of conflicting testimonies. For, indeed, the emphasis, gesture, and
inflection of the voice are potent aids in ascertaining the witness’ credibility, and the trial court has the opportunity to
take advantage of these aids.16
Since the conclusions made by the RTC regarding the credibility of the witnesses were not tainted with arbitrariness or
oversight or misapprehension of relevant facts, the same must be sustained by this Court.
Attempted and Frustrated Murder
Treachery was correctly appreciated by the RTC and CA-Cebu. A treacherous attack is one in which the victim was
not afforded any opportunity to defend himself or resist the attack. 17 The existence of treachery is not solely
determined by the type of weapon used. If it appears that the weapon was deliberately chosen to insure the execution
of the crime, and to render the victim defenseless, then treachery may be properly appreciated against the accused. 18
In the instant case, the Condes were unarmed when they were shot by appellant. The use of a 12-gauge shotgun
against two unarmed victims is undoubtedly treacherous, as it denies the victims the chance to fend off the offender.
We note, however, that appellant should be convicted of attempted murder, and not frustrated murder in Criminal Case
No. 2002-1777.
Article 6 of the Revised Penal Code defines the stages in the commission of felonies:
Art. 6. Consummated, frustrated, and attempted felonies.— Consummated felonies as well as those which are
frustrated and attempted, are punishable.
A felony is consummated when all the elements necessary for its execution and accomplishment are present; and it is
frustrated when the offender performs all the acts of execution which would produce the felony as a consequence but
which, nevertheless, do not produce it by reason of causes independent of the will of the perpetrator.
There is an attempt when the offender commences the commission of a felony directly by overt acts, and does not
perform all the acts of execution which should produce the felony by reason of some cause or accident other than his
own spontaneous desistance.
In Serrano v. People,19 we distinguished a frustrated felony from an attempted felony in this manner:
1.) In a frustrated felony, the offender has performed all the acts of execution which should produce the felony
as a consequence; whereas in an attempted felony, the offender merely commences the commission of a
felony directly by overt acts and does not perform all the acts of execution.
2.) In a frustrated felony, the reason for the non-accomplishment of the crime is some cause independent of
the will of the perpetrator; on the other hand, in an attempted felony, the reason for the non-fulfillment of the
crime is a cause or accident other than the offender’s own spontaneous desistance. 20
In frustrated murder, there must be evidence showing that the wound would have been fatal were it not for timely
medical intervention.21 If the evidence fails to convince the court that the wound sustained would have caused the
victim’s death without timely medical attention, the accused should be convicted of attempted murder and not
frustrated murder.
In the instant case, it does not appear that the wound sustained by Gregorio Conde was mortal. This was admitted by
Dr. Edwin Figura, who examined Gregorio after the shooting incident:
Prosecutor Con-El:
Q: When you examined the person of Gregorio Conde, can you tell the court what was the situation of the patient
when you examined him?
A: He has a gunshot wound, but the patient was actually ambulatory and not in distress.
xxxx
Court (to the witness)
Q: The nature of these injuries, not serious?
A: Yes, Your Honor, not serious. He has also abrasion wounds hematoma formation at the anterior aspect right
shoulder.22
Since Gregorio’s gunshot wound was not mortal, we hold that appellant should be convicted of attempted murder and
not frustrated murder. Under Article 51 of the Revised Penal Code, the corresponding penalty for attempted murder
shall be two degrees lower than that prescribed for consummated murder under Article 248, that is, prision
correccional in its maximum period to prision mayor in its medium period. Section 1 of the Indeterminate Sentence
Law provides:
x x x 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 Revised Penal Code,
and the minimum which shall be within the range of the penalty next lower to that prescribed by the Code for the
offense.1âwphi1
Thus, appellant should serve an indeterminate sentence ranging from two (2) years, four (4) months and one (1) day
of prision correccional in its medium period to eight (8) years and one (1) day of prision mayor in its medium period.
Award of damages
In light of recent jurisprudence, we deem it proper to increase the amount of damages imposed by the lower court in
both cases. In Criminal Case No. 2001-1555, this Court hereby awards ₱75,000.00 as civil indemnity 23 and
₱30,000.00 as exemplary damages.24 The award of ₱50,000.00 as moral damages in the foregoing case is sustained.
Appellant is also liable to pay ₱40,000.00 as moral damages and ₱30,000.00 as exemplary damages, in relation to
Criminal Case No. 2002-1777.
WHEREFORE, we AFFIRM the 18 October 2011 Decision of the Court of Appeals-Cebu in CA-G.R. CEB CR-HC No.
01000 with MODIFICATIONS. In Criminal Case No. 2002-1777, we find that appellant Regie Labiaga is GUILTY of
Attempted Murder and shall suffer an indeterminate sentence ranging from two (2) years, four (4) months and one (1)
day of prision correccional as minimum, to eight (8) years and one (1) day of prision mayor as maximum, and pay
₱40,000.00 as moral damages and ₱30,000.00 as exemplary damages. In Criminal Case No. 2001-1555, appellant
shall pay ₱75,000.00 as civil indemnity, ₱50,000.00 as moral damages, and ₱30,000.00 as exemplary damages.
SO ORDERED.

ARISTOTEL VALENZUELA vs. PEOPLE OF THE PHILIPPINES and COURT OF APPEALS NACHURA
G. R. No. 160188 June 21, 2007
TINGA, J.:
This case aims for prime space in the firmament of our criminal law jurisprudence. Petitioner effectively concedes
having performed the felonious acts imputed against him, but instead insists that as a result, he should be adjudged
guilty of frustrated theft only, not the felony in its consummated stage of which he was convicted. The proposition rests
on a common theory expounded in two well-known decisions1 rendered decades ago by the Court of Appeals,
upholding the existence of frustrated theft of which the accused in both cases were found guilty. However, the
rationale behind the rulings has never been affirmed by this Court.
As far as can be told,2 the last time this Court extensively considered whether an accused was guilty of frustrated or
consummated theft was in 1918, in People v. Adiao. 3 A more cursory
treatment of the question was followed in 1929, in People v. Sobrevilla, 4 and in 1984, in Empelis v. IAC.5 This petition
now gives occasion for us to finally and fully measure if or how frustrated theft is susceptible to commission under the
Revised Penal Code.
I.
The basic facts are no longer disputed before us. The case stems from an Information 6 charging petitioner Aristotel
Valenzuela (petitioner) and Jovy Calderon (Calderon) with the crime of theft. On 19 May 1994, at around 4:30 p.m.,
petitioner and Calderon were sighted outside the Super Sale Club, a supermarket within the ShoeMart (SM) complex
along North EDSA, by Lorenzo Lago (Lago), a security guard who was then manning his post at the open parking
area of the supermarket. Lago saw petitioner, who was wearing an identification card with the mark "Receiving
Dispatching Unit (RDU)," hauling a push cart with cases of detergent of the well-known "Tide" brand. Petitioner
unloaded these cases in an open parking space, where Calderon was waiting. Petitioner then returned inside the
supermarket, and after five (5) minutes, emerged with more cartons of Tide Ultramatic and again unloaded these
boxes to the same area in the open parking space. 7
Thereafter, petitioner left the parking area and haled a taxi. He boarded the cab and directed it towards the parking
space where Calderon was waiting. Calderon loaded the cartons of Tide Ultramatic inside the taxi, then boarded the
vehicle. All these acts were eyed by Lago, who proceeded to stop the taxi as it was leaving the open parking area.
When Lago asked petitioner for a receipt of the merchandise, petitioner and Calderon reacted by fleeing on foot, but
Lago fired a warning shot to alert his fellow security guards of the incident. Petitioner and Calderon were apprehended
at the scene, and the stolen merchandise recovered.8 The filched items seized from the duo were four (4) cases of
Tide Ultramatic, one (1) case of Ultra 25 grams, and three (3) additional cases of detergent, the goods with an
aggregate value of ₱12,090.00.9
Petitioner and Calderon were first brought to the SM security office before they were transferred on the same day to
the Baler Station II of the Philippine National Police, Quezon City, for investigation. It appears from the police
investigation records that apart from petitioner and Calderon, four (4) other persons were apprehended by the security
guards at the scene and delivered to police custody at the Baler PNP Station in connection with the incident. However,
after the matter was referred to the Office of the Quezon City Prosecutor, only petitioner and Calderon were charged
with theft by the Assistant City Prosecutor, in Informations prepared on 20 May 1994, the day after the incident. 10
After pleading not guilty on arraignment, at the trial, petitioner and Calderon both claimed having been innocent
bystanders within the vicinity of the Super Sale Club on the afternoon of 19 May 1994 when they were haled by Lago
and his fellow security guards after a commotion and brought to the Baler PNP Station. Calderon alleged that on the
afternoon of the incident, he was at the Super Sale Club to withdraw from his ATM account, accompanied by his
neighbor, Leoncio Rosulada.11 As the queue for the ATM was long, Calderon and Rosulada decided to buy snacks
inside the supermarket. It was while they were eating that they heard the gunshot fired by Lago, leading them to head
out of the building to check what was
transpiring. As they were outside, they were suddenly "grabbed" by a security guard, thus commencing their
detention.12 Meanwhile, petitioner testified during trial that he and his cousin, a Gregorio Valenzuela, 13 had been at the
parking lot, walking beside the nearby BLISS complex and headed to ride a tricycle going to Pag-asa, when they saw
the security guard Lago fire a shot. The gunshot caused him and the other people at the scene to start running, at
which point he was apprehended by Lago and brought to the security office. Petitioner claimed he was detained at the
security office until around 9:00 p.m., at which time he and the others were brought to the Baler Police Station. At the
station, petitioner denied having stolen the cartons of detergent, but he was detained overnight, and eventually
brought to the prosecutor’s office where he was charged with theft. 14 During petitioner’s cross-examination, he
admitted that he had been employed as a "bundler" of GMS Marketing, "assigned at the supermarket" though not at
SM.15
In a Decision16 promulgated on 1 February 2000, the Regional Trial Court (RTC) of Quezon City, Branch 90, convicted
both petitioner and Calderon of the crime of consummated theft. They were sentenced to an indeterminate prison term
of two (2) years of prision correccional as minimum to seven (7) years of prision mayor as maximum. 17 The RTC found
credible the testimonies of the prosecution witnesses and established the convictions on the positive identification of
the accused as perpetrators of the crime.
Both accused filed their respective Notices of Appeal,18 but only petitioner filed a brief19 with the Court of Appeals,
causing the appellate court to deem Calderon’s appeal as abandoned and consequently dismissed. Before the Court
of Appeals, petitioner argued that he should only be convicted of frustrated theft since at the time he was
apprehended, he was never placed in a position to freely dispose of the articles stolen. 20 However, in its Decision
dated 19 June 2003,21 the Court of Appeals rejected this contention and affirmed petitioner’s conviction. 22 Hence the
present Petition for Review,23 which expressly seeks that petitioner’s conviction "be modified to only of Frustrated
Theft."24
Even in his appeal before the Court of Appeals, petitioner effectively conceded both his felonious intent and his actual
participation in the theft of several cases of detergent with a total value of ₱12,090.00 of which he was charged. 25 As
such, there is no cause for the Court to consider a factual scenario other than that presented by the prosecution, as
affirmed by the RTC and the Court of Appeals. The only question to consider is whether under the given facts, the
theft should be deemed as consummated or merely frustrated.
II.
In arguing that he should only be convicted of frustrated theft, petitioner cites 26 two decisions rendered many years
ago by the Court of Appeals: People v. Diño27 and People v. Flores.28 Both decisions elicit the interest of this Court, as
they modified trial court convictions from consummated to frustrated theft and involve a factual milieu that bears
similarity to the present case. Petitioner invoked the same rulings in his appeal to the Court of Appeals, yet the
appellate court did not expressly consider the import of the rulings when it affirmed the conviction.
It is not necessary to fault the Court of Appeals for giving short shrift to the Diño and Flores rulings since they have not
yet been expressly adopted as precedents by this Court. For whatever reasons,
the occasion to define or debunk the crime of frustrated theft has not come to pass before us. Yet despite the silence
on our part, Diño and Flores have attained a level of renown reached by very few other appellate court rulings. They
are comprehensively discussed in the most popular of our criminal law annotations, 29 and studied in criminal law
classes as textbook examples of frustrated crimes or even as definitive of frustrated theft.
More critically, the factual milieu in those cases is hardly akin to the fanciful scenarios that populate criminal law
exams more than they actually occur in real life. Indeed, if we finally say that Diño and Flores are doctrinal, such
conclusion could profoundly influence a multitude of routine theft prosecutions, including commonplace shoplifting.
Any scenario that involves the thief having to exit with the stolen property through a supervised egress, such as a
supermarket checkout counter or a parking area pay booth, may easily call for the application of Diño and Flores. The
fact that lower courts have not hesitated to lay down convictions for frustrated theft further validates that Diño and
Flores and the theories offered therein on frustrated theft have borne some weight in our jurisprudential system. The
time is thus ripe for us to examine whether those theories are correct and should continue to influence prosecutors
and judges in the future.
III.
To delve into any extended analysis of Diño and Flores, as well as the specific issues relative to "frustrated theft," it is
necessary to first refer to the basic rules on the three stages of crimes under our Revised Penal Code. 30
Article 6 defines those three stages, namely the consummated, frustrated and attempted felonies. A felony is
consummated "when all the elements necessary for its execution and accomplishment are present." It is frustrated
"when the offender performs all the acts of execution which would produce the felony as a consequence but which,
nevertheless, do not produce it by reason of causes independent of the will of the perpetrator." Finally, it is attempted
"when the offender commences the commission of a felony directly by overt acts, and does not perform all the acts of
execution which should produce the felony by reason of some cause or accident other than his own spontaneous
desistance."
Each felony under the Revised Penal Code has a "subjective phase," or that portion of the acts constituting the crime
included between the act which begins the commission of the crime and the last act performed by the offender which,
with prior acts, should result in the consummated crime. 31 After that point has been breached, the subjective phase
ends and the objective phase begins.32 It has been held that if the offender never passes the subjective phase of the
offense, the crime is merely attempted.33 On the other hand, the subjective phase is completely passed in case of
frustrated crimes, for in such instances, "[s]ubjectively the crime is complete." 34
Truly, an easy distinction lies between consummated and frustrated felonies on one hand, and attempted felonies on
the other. So long as the offender fails to complete all the acts of execution despite commencing the commission of a
felony, the crime is undoubtedly in the attempted stage. Since the specific acts of execution that define each crime
under the Revised Penal Code are generally enumerated in the code itself, the task of ascertaining whether a crime is
attempted only would need to compare the acts actually performed by the accused as against the acts that constitute
the felony under the Revised Penal Code.
In contrast, the determination of whether a crime is frustrated or consummated necessitates an initial concession that
all of the acts of execution have been performed by the offender. The critical distinction instead is whether the felony
itself was actually produced by the acts of execution. The determination of whether the felony was "produced" after all
the acts of execution had been performed hinges on the particular statutory definition of the felony. It is the statutory
definition that generally furnishes the elements of each crime under the Revised Penal Code, while the elements in
turn unravel the particular requisite acts of execution and accompanying criminal intent.
The long-standing Latin maxim "actus non facit reum, nisi mens sit rea" supplies an important characteristic of a crime,
that "ordinarily, evil intent must unite with an unlawful act for there to be a crime," and accordingly, there can be no
crime when the criminal mind is wanting.35 Accepted in this jurisdiction as material in crimes mala in se, 36mens rea has
been defined before as "a guilty mind, a guilty or wrongful purpose or criminal intent," 37 and "essential for criminal
liability."38 It follows that the statutory definition of our mala in se crimes must be able to supply what the mens rea of
the crime is, and indeed the U.S. Supreme Court has comfortably held that "a criminal law that contains no mens rea
requirement infringes on constitutionally protected rights." 39 The criminal statute must also provide for the overt acts
that constitute the crime. For a crime to exist in our legal law, it is not enough that mens rea be shown; there must also
be an actus reus.40
It is from the actus reus and the mens rea, as they find expression in the criminal statute, that the felony is produced.
As a postulate in the craftsmanship of constitutionally sound laws, it is extremely preferable that the language of the
law expressly provide when the felony is produced. Without such provision, disputes would inevitably ensue on the
elemental question whether or not a crime was committed, thereby presaging the undesirable and legally dubious set-
up under which the judiciary is assigned the legislative role of defining crimes. Fortunately, our Revised Penal Code
does not suffer from such infirmity. From the statutory definition of any felony, a decisive passage or term is embedded
which attests when the felony is produced by the acts of execution. For example, the statutory definition of murder or
homicide expressly uses the phrase "shall kill another," thus making it clear that the felony is produced by the death of
the victim, and conversely, it is not produced if the victim survives.
We next turn to the statutory definition of theft. Under Article 308 of the Revised Penal Code, its elements are spelled
out as follows:
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 object of the damage caused by him; and
3. Any person who shall enter an inclosed 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 cereals, or other forest or farm
products.
Article 308 provides for a general definition of theft, and three alternative and highly idiosyncratic means by which theft
may be committed.41 In the present discussion, we need to concern ourselves only with the general definition since it
was under it that the prosecution of the accused was undertaken and sustained. On the face of the definition, there is
only one operative act of execution by the actor involved in theft ─ the taking of personal property of another. It is also
clear from the provision that in order that such taking may be qualified as theft, there must further be present the
descriptive circumstances that the taking was with intent to gain; without force upon things or violence against or
intimidation of persons; and it was without the consent of the owner of the property.
Indeed, we have long recognized the following elements of theft as provided for in Article 308 of the Revised Penal
Code, namely: (1) that there be taking of personal property; (2) that said property belongs to another; (3) that the
taking be done with intent to gain; (4) that the taking be done without the consent of the owner; and (5) that the taking
be accomplished without the use of violence against or intimidation of persons or force upon things. 42
In his commentaries, Judge Guevarra traces the history of the definition of theft, which under early Roman law as
defined by Gaius, was so broad enough as to encompass "any kind of physical handling of property belonging to
another against the will of the owner,"43 a definition similar to that by Paulus that a thief "handles (touches, moves) the
property of another."44 However, with the Institutes of Justinian, the idea had taken hold that more than mere physical
handling, there must further be an intent of acquiring gain from the object, thus: "[f]urtum est contrectatio rei
fraudulosa, lucri faciendi causa vel ipsius rei, vel etiam usus ejus possessinisve." 45 This requirement of animo lucrandi,
or intent to gain, was maintained in both the Spanish and Filipino penal laws, even as it has since been abandoned in
Great Britain.46
In Spanish law, animo lucrandi was compounded with apoderamiento, or "unlawful taking," to characterize theft.
Justice Regalado notes that the concept of apoderamiento once had a controversial interpretation and application.
Spanish law had already discounted the belief that mere physical taking was constitutive of apoderamiento, finding
that it had to be coupled with "the intent to appropriate the object in order to constitute apoderamiento; and to
appropriate means to deprive the lawful owner of the thing." 47 However, a conflicting line of cases decided by the
Court of Appeals ruled, alternatively, that there must be permanency in the taking 48 or an intent to permanently deprive
the owner of the stolen property;49 or that there was no need for permanency in the taking or in its intent, as the mere
temporary possession by the offender or disturbance of the proprietary rights of the owner already constituted
apoderamiento.50 Ultimately, as Justice Regalado notes, the Court adopted the latter thought that there was no need
of an intent to permanently deprive the owner of his property to constitute an unlawful taking. 51
So long as the "descriptive" circumstances that qualify the taking are present, including animo lucrandi and
apoderamiento, the completion of the operative act that is the taking of personal property of another establishes, at
least, that the transgression went beyond the attempted stage. As applied to the present case, the moment petitioner
obtained physical possession of the cases of detergent and loaded them in the pushcart, such seizure motivated by
intent to gain, completed without need to inflict violence or intimidation against persons nor force upon things, and
accomplished without the consent of the SM Super Sales Club, petitioner forfeited the extenuating benefit a conviction
for only attempted theft would have afforded him.
On the critical question of whether it was consummated or frustrated theft, we are obliged to apply Article 6 of the
Revised Penal Code to ascertain the answer. Following that provision, the theft would have been frustrated only, once
the acts committed by petitioner, if ordinarily sufficient to produce theft as a consequence, "do not produce [such theft]
by reason of causes independent of the will of the perpetrator." There are clearly two determinative factors to consider:
that the felony is not "produced," and that such failure is due to causes independent of the will of the perpetrator. The
second factor ultimately depends on the evidence at hand in each particular case. The first, however, relies primarily
on a doctrinal definition attaching to the individual felonies in the Revised Penal Code 52 as to when a particular felony
is "not produced," despite the commission of all the acts of execution.
So, in order to ascertain whether the theft is consummated or frustrated, it is necessary to inquire as to how exactly is
the felony of theft "produced." Parsing through the statutory definition of theft under Article 308, there is one apparent
answer provided in the language of the law — that theft is already "produced" upon the "tak[ing of] personal property
of another without the latter’s consent."
U.S. v. Adiao53 apparently supports that notion. Therein, a customs inspector was charged with theft after he
abstracted a leather belt from the baggage of a foreign national and secreted the item in his desk at the Custom
House. At no time was the accused able to "get the merchandise out of the Custom House," and it appears that he
"was under observation during the entire transaction." 54 Based apparently on those two circumstances, the trial court
had found him guilty, instead, of frustrated theft. The Court reversed, saying that neither circumstance was decisive,
and holding instead that the accused was guilty of consummated theft, finding that "all the elements of the completed
crime of theft are present."55 In support of its conclusion that the theft was consummated, the Court cited three (3)
decisions of the Supreme Court of Spain, the discussion of which we replicate below:
The defendant was charged with the theft of some fruit from the land of another. As he was in the act of taking the
fruit[,] he was seen by a policeman, yet it did not appear that he was at that moment caught by the policeman but
sometime later. The court said: "[x x x] The trial court did not err [x x x ] in considering the crime as that of
consummated theft instead of frustrated theft inasmuch as nothing appears in the record showing that the policemen
who saw the accused take the fruit from the adjoining land arrested him in the act and thus prevented him from taking
full possession of the thing stolen and even its utilization by him for an interval of time." (Decision of the Supreme
Court of Spain, October 14, 1898.)
Defendant picked the pocket of the offended party while the latter was hearing mass in a church. The latter on account
of the solemnity of the act, although noticing the theft, did not do anything to prevent it. Subsequently, however, while
the defendant was still inside the church, the offended party got back the money from the defendant. The court said
that the defendant had performed all the acts of execution and considered the theft as consummated. (Decision of the
Supreme Court of Spain, December 1, 1897.)
The defendant penetrated into a room of a certain house and by means of a key opened up a case, and from the case
took a small box, which was also opened with a key, from which in turn he took a purse containing 461 reales and 20
centimos, and then he placed the money over the cover of the case; just at this moment he was caught by two guards
who were stationed in another room near-by. The court considered this as consummated robbery, and said: "[x x x]
The accused [x x x] having materially taken possession of the money from the moment he took it from the place where
it had been, and having taken it with his hands with intent to appropriate the same, he executed all the acts necessary
to constitute the crime which was thereby produced; only the act of making use of the thing having been frustrated,
which, however, does not go to make the elements of the consummated crime." (Decision of the Supreme Court of
Spain, June 13, 1882.)56
It is clear from the facts of Adiao itself, and the three (3) Spanish decisions cited therein, that the criminal actors in all
these cases had been able to obtain full possession of the personal property prior to their apprehension. The interval
between the commission of the acts of theft and the apprehension of the thieves did vary, from "sometime later" in the
1898 decision; to the very moment the thief had just extracted the money in a purse which had been stored as it was
in the 1882 decision; and before the thief had been able to spirit the item stolen from the building where the theft took
place, as had happened in Adiao and the 1897 decision. Still, such intervals proved of no consequence in those
cases, as it was ruled that the thefts in each of those cases was consummated by the actual possession of the
property belonging to another.
In 1929, the Court was again confronted by a claim that an accused was guilty only of frustrated rather than
consummated theft. The case is People v. Sobrevilla,57 where the accused, while in the midst of a crowd in a public
market, was already able to abstract a pocketbook from the trousers of the victim when the latter, perceiving the theft,
"caught hold of the [accused]’s shirt-front, at the same time shouting for a policeman; after a struggle, he recovered
his pocket-book and let go of the defendant, who was afterwards caught by a policeman." 58 In rejecting the contention
that only frustrated theft was established, the Court simply said, without further comment or elaboration:
We believe that such a contention is groundless. The [accused] succeeded in taking the pocket-book, and that
determines the crime of theft. If the pocket-book was afterwards recovered, such recovery does not affect the
[accused’s] criminal liability, which arose from the [accused] having succeeded in taking the pocket-book. 59
If anything, Sobrevilla is consistent with Adiao and the Spanish Supreme Court cases cited in the latter, in that the fact
that the offender was able to succeed in obtaining physical possession of the stolen item, no matter how momentary,
was able to consummate the theft.
Adiao, Sobrevilla and the Spanish Supreme Court decisions cited therein contradict the position of petitioner in this
case. Yet to simply affirm without further comment would be disingenuous, as there is another school of thought on
when theft is consummated, as reflected in the Diño and Flores decisions.
Diño was decided by the Court of Appeals in 1949, some 31 years after Adiao and 15 years before Flores. The
accused therein, a driver employed by the United States Army, had driven his truck into the port area of the South
Harbor, to unload a truckload of materials to waiting U.S. Army personnel. After he had finished unloading, accused
drove away his truck from the Port, but as he was approaching a checkpoint of the Military Police, he was stopped by
an M.P. who inspected the truck and found therein three boxes of army rifles. The accused later contended that he
had been stopped by four men who had loaded the boxes with the agreement that they were to meet him and retrieve
the rifles after he had passed the checkpoint. The trial court convicted accused of consummated theft, but the Court of
Appeals modified the conviction, holding instead that only frustrated theft had been committed.
In doing so, the appellate court pointed out that the evident intent of the accused was to let the boxes of rifles "pass
through the checkpoint, perhaps in the belief that as the truck had already unloaded its cargo inside the depot, it would
be allowed to pass through the check point without further investigation or checking." 60 This point was deemed
material and indicative that the theft had not been fully produced, for the Court of Appeals pronounced that "the fact
determinative of consummation is the ability of the thief to dispose freely of the articles stolen, even if it were more or
less momentary."61 Support for this proposition was drawn from a decision of the Supreme Court of Spain dated 24
January 1888 (1888 decision), which was quoted as follows:
Considerando que para que el apoderamiento de la cosa sustraida sea determinate de la consumacion del delito de
hurto es preciso que so haga en circunstancias tales que permitan al sustractor la libre disposicion de aquella,
siquiera sea mas o menos momentaneamente, pues de otra suerte, dado el concepto del delito de hurto, no puede
decirse en realidad que se haya producido en toda su extension, sin materializar demasiado el acto de tomar la cosa
ajena.62
Integrating these considerations, the Court of Appeals then concluded:
This court is of the opinion that in the case at bar, in order to make the booty subject to the control and disposal of the
culprits, the articles stolen must first be passed through the M.P. check point, but since the offense was opportunely
discovered and the articles seized after all the acts of execution had been performed, but before the loot came under
the final control and disposal of the looters, the offense can not be said to have been fully consummated, as it was
frustrated by the timely intervention of the guard. The offense committed, therefore, is that of frustrated theft. 63
Diño thus laid down the theory that the ability of the actor to freely dispose of the items stolen at the time of
apprehension is determinative as to whether the theft is consummated or frustrated. This theory was applied again by
the Court of Appeals some 15 years later, in Flores, a case which according to the division of the court that decided it,
bore "no substantial variance between the circumstances [herein] and in [Diño]." 64 Such conclusion is borne out by the
facts in Flores. The accused therein, a checker employed by the Luzon Stevedoring Company, issued a delivery
receipt for one empty sea van to the truck driver who had loaded the purportedly empty sea van onto his truck at the
terminal of the stevedoring company. The truck driver proceeded to show the delivery receipt to the guard on duty at
the gate of the terminal. However, the guards insisted on inspecting the van, and discovered that the "empty" sea van
had actually contained other merchandise as well.65 The accused was prosecuted for theft qualified by abuse of
confidence, and found himself convicted of the consummated crime. Before the Court of Appeals, accused argued in
the alternative that he was guilty only of attempted theft, but the appellate court pointed out that there was no
intervening act of spontaneous desistance on the part of the accused that "literally frustrated the theft." However, the
Court of Appeals, explicitly relying on Diño, did find that the accused was guilty only of frustrated, and not
consummated, theft.
As noted earlier, the appellate court admitted it found "no substantial variance" between Diño and Flores then before
it. The prosecution in Flores had sought to distinguish that case from Diño, citing a "traditional ruling" which
unfortunately was not identified in the decision itself. However, the Court of Appeals pointed out that the said
"traditional ruling" was qualified by the words "is placed in a situation where [the actor] could dispose of its contents at
once."66 Pouncing on this qualification, the appellate court noted that "[o]bviously, while the truck and the van were still
within the compound, the petitioner could not have disposed of the goods ‘at once’." At the same time, the Court of
Appeals conceded that "[t]his is entirely different from the case where a much less bulk and more common thing as
money was the object of the crime, where freedom to dispose of or make use of it is palpably less restricted," 67 though
no further qualification was offered what the effect would have been had that alternative circumstance been present
instead.
Synthesis of the Diño and Flores rulings is in order. The determinative characteristic as to whether the crime of theft
was produced is the ability of the actor "to freely dispose of the articles stolen, even if it were only momentary." Such
conclusion was drawn from an 1888 decision of the Supreme Court of Spain which had pronounced that in
determining whether theft had been consummated, "es preciso que so haga en circunstancias tales que permitan al
sustractor de aquella, siquiera sea mas o menos momentaneamente." The qualifier "siquiera sea mas o menos
momentaneamente" proves another important consideration, as it implies that if the actor was in a capacity to freely
dispose of the stolen items before apprehension, then the theft could be deemed consummated. Such circumstance
was not present in either Diño or Flores, as the stolen items in both cases were retrieved from the actor before they
could be physically extracted from the guarded compounds from which the items were filched. However, as implied in
Flores, the character of the item stolen could lead to a different conclusion as to whether there could have been "free
disposition," as in the case where the chattel involved was of "much less bulk and more common x x x, [such] as
money x x x."68
In his commentaries, Chief Justice Aquino makes the following pointed observation on the import of the Diño ruling:
There is a ruling of the Court of Appeals that theft is consummated when the thief is able to freely dispose of the stolen
articles even if it were more or less momentary. Or as stated in another case[ 69 ], theft is consummated upon the
voluntary and malicious taking of property belonging to another which is realized by the material occupation of the
thing whereby the thief places it under his control and in such a situation that he could dispose of it at once. This ruling
seems to have been based on Viada’s opinion that in order the theft may be consummated, "es preciso que se haga
en circumstancias x x x [70 ]"71
In the same commentaries, Chief Justice Aquino, concluding from Adiao and other cases, also states that "[i]n theft or
robbery the crime is consummated after the accused had material possession of the thing with intent to appropriate
the same, although his act of making use of the thing was frustrated." 72
There are at least two other Court of Appeals rulings that are at seeming variance with the Diño and Flores rulings.
People v. Batoon73 involved an accused who filled a container with gasoline from a petrol pump within view of a police
detective, who followed the accused onto a passenger truck where the arrest was made. While the trial court found
the accused guilty of frustrated qualified theft, the Court of Appeals held that the accused was guilty of consummated
qualified theft, finding that "[t]he facts of the cases of U.S. [v.] Adiao x x x and U.S. v. Sobrevilla x x x indicate that
actual taking with intent to gain is enough to consummate the crime of theft." 74
In People v. Espiritu,75 the accused had removed nine pieces of hospital linen from a supply depot and loaded them
onto a truck. However, as the truck passed through the checkpoint, the stolen items were discovered by the Military
Police running the checkpoint. Even though those facts clearly admit to similarity with those in Diño, the Court of
Appeals held that the accused were guilty of consummated theft, as the accused "were able to take or get hold of the
hospital linen and that the only thing that was frustrated, which does not constitute any element of theft, is the use or
benefit that the thieves expected from the commission of the offense." 76
In pointing out the distinction between Diño and Espiritu, Reyes wryly observes that "[w]hen the meaning of an
element of a felony is controversial, there is bound to arise different rulings as to the stage of execution of that
felony."77 Indeed, we can discern from this survey of jurisprudence that the state of the law insofar as frustrated theft is
concerned is muddled. It fact, given the disputed foundational basis of the concept of frustrated theft itself, the
question can even be asked whether there is really such a crime in the first place.
IV.
The Court in 1984 did finally rule directly that an accused was guilty of frustrated, and not consummated, theft. As we
undertake this inquiry, we have to reckon with the import of this Court’s 1984 decision in Empelis v. IAC. 78
As narrated in Empelis, the owner of a coconut plantation had espied four (4) persons in the premises of his
plantation, in the act of gathering and tying some coconuts. The accused were surprised by the owner within the
plantation as they were carrying with them the coconuts they had gathered. The accused fled the scene, dropping the
coconuts they had seized, and were subsequently arrested after the owner reported the incident to the police. After
trial, the accused were convicted of qualified theft, and the issue they raised on appeal was that they were guilty only
of simple theft. The Court affirmed that the theft was qualified, following Article 310 of the Revised Penal Code, 79 but
further held that the accused were guilty only of frustrated qualified theft.
It does not appear from the Empelis decision that the issue of whether the theft was consummated or frustrated was
raised by any of the parties. What does appear, though, is that the disposition of that issue was contained in only two
sentences, which we reproduce in full:
However, the crime committed is only frustrated qualified theft because petitioners were not able to perform all the
acts of execution which should have produced the felony as a consequence. They were not able to carry the coconuts
away from the plantation due to the timely arrival of the owner. 80
No legal reference or citation was offered for this averment, whether Diño, Flores or the Spanish authorities who may
have bolstered the conclusion. There are indeed evident problems with this formulation in Empelis.
Empelis held that the crime was only frustrated because the actors "were not able to perform all the acts of execution
which should have produced the felon as a consequence." 81 However, per Article 6 of the Revised Penal Code, the
crime is frustrated "when the offender performs all the acts of execution," though not producing the felony as a result.
If the offender was not able to perform all the acts of execution, the crime is attempted, provided that the non-
performance was by reason of some cause or accident other than spontaneous desistance. Empelis concludes that
the crime was
frustrated because not all of the acts of execution were performed due to the timely arrival of the owner. However,
following Article 6 of the Revised Penal Code, these facts should elicit the conclusion that the crime was only
attempted, especially given that the acts were not performed because of the timely arrival of the owner, and not
because of spontaneous desistance by the offenders.
For these reasons, we cannot attribute weight to Empelis as we consider the present petition. Even if the two
sentences we had cited actually aligned with the definitions provided in Article 6 of the Revised Penal Code, such
passage bears no reflection that it is the product of the considered evaluation of the relevant legal or jurisprudential
thought. Instead, the passage is offered as if it were sourced from an indubitable legal premise so settled it required
no further explication.
Notably, Empelis has not since been reaffirmed by the Court, or even cited as authority on theft. Indeed, we cannot
see how Empelis can contribute to our present debate, except for the bare fact that it proves that the Court had once
deliberately found an accused guilty of frustrated theft. Even if Empelis were considered as a precedent for frustrated
theft, its doctrinal value is extremely compromised by the erroneous legal premises that inform it, and also by the fact
that it has not been entrenched by subsequent reliance.
Thus, Empelis does not compel us that it is an insurmountable given that frustrated theft is viable in this jurisdiction.
Considering the flawed reasoning behind its conclusion of frustrated theft, it cannot present any efficacious argument
to persuade us in this case. Insofar as Empelis may imply that convictions for frustrated theft are beyond cavil in this
jurisdiction, that decision is subject to reassessment.
V.
At the time our Revised Penal Code was enacted in 1930, the 1870 Codigo Penal de España was then in place. The
definition of the crime of theft, as provided then, read as follows:
Son reos de hurto:
1. Los que con ánimo de lucrarse, y sin volencia o intimidación en las personas ni fuerza en las cosas, toman las
cosas muebles ajenas sin la voluntad de su dueño.
2. Los que encontrándose una cosa perdida y sabiendo quién es su dueño se la apropriaren co intención de lucro.
3. Los dañadores que sustrajeren o utilizaren los frutos u objeto del daño causado, salvo los casos previstos en los
artίculos 606, núm. 1.0; 607, núms, 1.0, 2.0 y 3.0; 608, núm. 1.0; 611; 613; Segundo párrafo del 617 y 618.
It was under the ambit of the 1870 Codigo Penal that the aforecited Spanish Supreme Court decisions were handed
down. However, the said code would be revised again in 1932, and several times thereafter. In fact, under the Codigo
Penal Español de 1995, the crime of theft is now simply defined as "[e]l que, con ánimo de lucro,
tomare las cosas muebles ajenas sin la voluntad de su dueño será castigado" 82
Notice that in the 1870 and 1995 definition of theft in the penal code of Spain, "la libre disposicion" of the property is
not an element or a statutory characteristic of the crime. It does appear that the principle originated and perhaps was
fostered in the realm of Spanish jurisprudence.
The oft-cited Salvador Viada adopted a question-answer form in his 1926 commentaries on the 1870 Codigo Penal de
España. Therein, he raised at least three questions for the reader whether the crime of frustrated or consummated
theft had occurred. The passage cited in Diño was actually utilized by Viada to answer the question whether frustrated
or consummated theft was committed "[e]l que en el momento mismo de apoderarse de la cosa ajena, viéndose
sorprendido, la arroja al suelo."83 Even as the answer was as stated in Diño, and was indeed derived from the 1888
decision of the Supreme Court of Spain, that decision’s factual predicate occasioning the statement was apparently
very different from Diño, for it appears that the 1888 decision involved an accused who was surprised by the
employees of a haberdashery as he was abstracting a layer of clothing off a mannequin, and who then proceeded to
throw away the garment as he fled.84
Nonetheless, Viada does not contest the notion of frustrated theft, and willingly recites decisions of the Supreme Court
of Spain that have held to that effect.85 A few decades later, the esteemed Eugenio Cuello Calón pointed out the
inconsistent application by the Spanish Supreme Court with respect to frustrated theft.
Hay frustración cuando los reos fueron sorprendidos por las guardias cuando llevaban los sacos de harino del carro
que los conducia a otro que tenían preparado, 22 febrero 1913; cuando el resultado no tuvo efecto por la intervención
de la policia situada en el local donde se realizó la sustracción que impidió pudieran los reos disponer de lo sustraído,
30 de octubre 1950. Hay "por lo menos" frustración, si existe apoderamiento, pero el culpale no llega a disponer de la
cosa, 12 abril 1930; hay frustración "muy próxima" cuando el culpable es detenido por el perjudicado acto seguido de
cometer la sustracción, 28 febrero 1931. Algunos fallos han considerado la existencia de frustración cuando,
perseguido el culpable o sorprendido en el momento de llevar los efectos hurtados, los abandona, 29 mayo 1889, 22
febrero 1913, 11 marzo 1921; esta doctrina no es admissible, éstos, conforme a lo antes expuesto, son hurtos
consumados.86
Ultimately, Cuello Calón attacked the very idea that frustrated theft is actually possible:
La doctrina hoy generalmente sustentada considera que el hurto se consuma cuando la cosa queda de hecho a la
disposición del agente. Con este criterio coincide la doctrina sentada últimamente porla jurisprudencia española que
generalmente considera consumado el hurto cuando el culpable coge o aprehende la cosa y ésta quede por tiempo
más o menos duradero bajo su poder. El hecho de que éste pueda aprovecharse o no de lo hurtado es indiferente. El
delito no pierde su carácter de consumado aunque la cosa hurtada sea devuelta por el culpable o fuere recuperada.
No se concibe la frustración, pues es muy dificil que el que hace cuanto es necesario para la consumación del hurto
no lo consume efectivamente, los raros casos que nuestra jurisprudencia, muy vacilante, declara hurtos frustrados
son verdaderos delitos consumados.87 (Emphasis supplied)
Cuello Calón’s submissions cannot be lightly ignored. Unlike Viada, who was content with replicating the Spanish
Supreme Court decisions on the matter, Cuello Calón actually set forth his own thought that questioned whether theft
could truly be frustrated, since "pues es muy dificil que el que hace cuanto es necesario para la consumación del
hurto no lo consume efectivamente." Otherwise put, it would be difficult to foresee how the execution of all the acts
necessary for the completion of the crime would not produce the effect of theft.
This divergence of opinion convinces us, at least, that there is no weighted force in scholarly thought that obliges us to
accept frustrated theft, as proposed in Diño and Flores. A final ruling by the Court that there is no crime of frustrated
theft in this jurisdiction will not lead to scholastic pariah, for such a submission is hardly heretical in light of Cuello
Calón’s position.
Accordingly, it would not be intellectually disingenuous for the Court to look at the question from a fresh perspective,
as we are not bound by the opinions of the respected Spanish commentators, conflicting as they are, to accept that
theft is capable of commission in its frustrated stage. Further, if we ask the question whether there is a mandate of
statute or precedent that must compel us to adopt the Diño and Flores doctrines, the answer has to be in the negative.
If we did so, it would arise not out of obeisance to an inexorably higher command, but from the exercise of the function
of statutory interpretation that comes as part and parcel of judicial review, and a function that allows breathing room
for a variety of theorems in competition until one is ultimately adopted by this Court.
V.
The foremost predicate that guides us as we explore the matter is that it lies in the province of the legislature, through
statute, to define what constitutes a particular crime in this jurisdiction. It is the legislature, as representatives of the
sovereign people, which determines which acts or combination of acts are criminal in nature. Judicial interpretation of
penal laws should be aligned with what was the evident legislative intent, as expressed primarily in the language of
the law as it defines the crime. It is Congress, not the courts, which is to define a crime, and ordain its
punishment.88 The courts cannot arrogate the power to introduce a new element of a crime which was unintended by
the legislature, or redefine a crime in a manner that does not hew to the statutory language. Due respect for the
prerogative of Congress in defining crimes/felonies constrains the Court to refrain from a broad interpretation of penal
laws where a "narrow interpretation" is appropriate. "The Court must take heed of language, legislative history and
purpose, in order to strictly determine the wrath and breath of the conduct the law forbids." 89
With that in mind, a problem clearly emerges with the Diño/Flores dictum. The ability of the offender to freely dispose
of the property stolen is not a constitutive element of the crime of theft. It finds no support or extension in Article 308,
whether as a descriptive or operative element of theft or as the mens rea or actus reus of the felony. To restate what
this Court has repeatedly held: the elements of the crime of theft as provided for in Article 308 of the Revised Penal
Code are: (1) that there be taking of personal property; (2) that said property belongs to another; (3) that the taking be
done with intent to gain; (4) that the taking be done without the consent of the owner; and (5) that the taking be
accomplished without the use of violence against or intimidation of persons or force upon things. 90
Such factor runs immaterial to the statutory definition of theft, which is the taking, with intent to gain, of personal
property of another without the latter’s consent. While the Diño/Flores dictum is considerate to the mindset of the
offender, the statutory definition of theft considers only the perspective of intent to gain on the part of the offender,
compounded by the deprivation of property on the part of the victim.
For the purpose of ascertaining whether theft is susceptible of commission in the frustrated stage, the question is
again, when is the crime of theft produced? There would be all but certain unanimity in the position that theft is
produced when there is deprivation of personal property due to its taking by one with intent to gain. Viewed from that
perspective, it is immaterial to the product of the felony that the offender, once having committed all the acts of
execution for theft, is able or unable to freely dispose of the property stolen since the deprivation from the owner alone
has already ensued from such acts of execution. This conclusion is reflected in Chief Justice Aquino’s commentaries,
as earlier cited, that "[i]n theft or robbery the crime is consummated after the accused had material possession of the
thing with intent to appropriate the same, although his act of making use of the thing was frustrated." 91
It might be argued, that the ability of the offender to freely dispose of the property stolen delves into the concept of
"taking" itself, in that there could be no true taking until the actor obtains such degree of control over the stolen item.
But even if this were correct, the effect would be to downgrade the crime to its attempted, and not frustrated stage, for
it would mean that not all the acts of execution have not been completed, the "taking not having been accomplished."
Perhaps this point could serve as fertile ground for future discussion, but our concern now is whether there is indeed a
crime of frustrated theft, and such consideration proves ultimately immaterial to that question. Moreover, such issue
will not apply to the facts of this particular case. We are satisfied beyond reasonable doubt that the taking by the
petitioner was completed in this case. With intent to gain, he acquired physical possession of the stolen cases of
detergent for a considerable period of time that he was able to drop these off at a spot in the parking lot, and long
enough to load these onto a taxicab.
Indeed, we have, after all, held that unlawful taking, or apoderamiento, is deemed complete from the moment the
offender gains possession of the thing, even if he has no opportunity to dispose of the same. 92 And long ago, we
asserted in People v. Avila:93
x x x [T]he most fundamental notion in the crime of theft is the taking of the thing to be appropriated into the physical
power of the thief, which idea is qualified by other conditions, such as that the taking must be effected animo
lucrandi and without the consent of the owner; and it will be here noted that the definition does not require that the
taking should be effected against the will of the owner but merely that it should be without his consent, a distinction of
no slight importance.94
Insofar as we consider the present question, "unlawful taking" is most material in this respect. Unlawful taking, which
is the deprivation of one’s personal property, is the element which produces the felony in its consummated stage. At
the same time, without unlawful taking as an act of execution, the offense could only be attempted theft, if at all.
With these considerations, we can only conclude that under Article 308 of the Revised Penal Code, theft cannot have
a frustrated stage. Theft can only be attempted or consummated.
Neither Diño nor Flores can convince us otherwise. Both fail to consider that once the offenders therein obtained
possession over the stolen items, the effect of the felony has been produced as there has been deprivation of
property. The presumed inability of the offenders to freely dispose of the stolen property does not negate the fact that
the owners have already been deprived of their right to possession upon the completion of the taking.
Moreover, as is evident in this case, the adoption of the rule —that the inability of the offender to freely dispose of the
stolen property frustrates the theft — would introduce a convenient defense for the accused which does not reflect any
legislated intent,95 since the Court would have carved a viable means for offenders to seek a mitigated penalty under
applied circumstances that do not admit of easy classification. It is difficult to formulate definite standards as to when a
stolen item is susceptible to free disposal by the thief. Would this depend on the psychological belief of the offender at
the time of the commission of the crime, as implied in Diño?
Or, more likely, the appreciation of several classes of factual circumstances such as the size and weight of the
property, the location of the property, the number and identity of people present at the scene of the crime, the number
and identity of people whom the offender is expected to encounter upon fleeing with the stolen property, the manner in
which the stolen item had been housed or stored; and quite frankly, a whole lot more. Even the fungibility or edibility of
the stolen item would come into account, relevant as that would be on whether such property is capable of free
disposal at any stage, even after the taking has been consummated.
All these complications will make us lose sight of the fact that beneath all the colorful detail, the owner was indeed
deprived of property by one who intended to produce such deprivation for reasons of gain. For such will remain the
presumed fact if frustrated theft were recognized, for therein, all of the acts of execution, including the taking, have
been completed. If the facts establish the non-completion of the taking due to these peculiar circumstances, the effect
could be to downgrade the crime to the attempted stage, as not all of the acts of execution have been performed. But
once all these acts have been executed, the taking has been completed, causing the unlawful deprivation of property,
and ultimately the consummation of the theft.
Maybe the Diño/Flores rulings are, in some degree, grounded in common sense. Yet they do not align with the
legislated framework of the crime of theft. The Revised Penal Code provisions on theft have not been designed in
such fashion as to accommodate said rulings. Again, there is no language in Article 308 that expressly or impliedly
allows that the "free disposition of the items stolen" is in any way determinative of whether the crime of theft has been
produced. Diño itself did not rely on Philippine laws or jurisprudence to bolster its conclusion, and the later Flores was
ultimately content in relying on Diño alone for legal support. These cases do not enjoy the weight of stare decisis, and
even if they did, their erroneous appreciation of our law on theft leave them susceptible to reversal. The same holds
true of Empilis, a regrettably stray decision which has not since found favor from this Court.
We thus conclude that under the Revised Penal Code, there is no crime of frustrated theft. As petitioner has latched
the success of his appeal on our acceptance of the Diño and Flores rulings, his petition must be denied, for we decline
to adopt said rulings in our jurisdiction. That it has taken all these years for us to recognize that there can be no
frustrated theft under the Revised Penal Code does not detract from the correctness of this conclusion. It will take
considerable amendments to our Revised Penal Code in order that frustrated theft may be recognized. Our deference
to Viada yields to the higher reverence for legislative intent.
WHEREFORE, the petition is DENIED. Costs against petitioner.
SO ORDERED.

JOVITO CANCERAN vs. PEOPLE OF THE PHILIPPINES


G.R. No. 206442 July 1, 2015
MENDOZA, J.:
This is a petition for review on certiorari seeking to reverse and set aside the August 10, 2012 Decision 1 and the
March 7, 2013 Resolution2 of the Court of Appeals (CA), in CA-G.R. CR No. 00559, which affirmed and modified the
September 20, 2007 Judgment3 of the Regional Trial Court, Branch 39, Misamis Oriental, Cagayan de Oro City (RTC),
in Criminal Case No. 2003-141, convicting petitioner Jovito Canceran (Canceran) for consummated Theft.
The records disclose that Canceran, together with Frederick Vequizo and Marcial Diaz, Jr., was charged with
"Frustrated Theft." The Information reads:
That on or about October 6, 2002, at more or less 12:00 noon, at Ororama Mega Center Grocery Department,
Lapasan, Cagayan de Oro City, Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, Jovito Canceran, conspiring, confederating together and mutually helping one another with his co-accused
Frederick Vequizo, URC Merchandiser, and Marcial Diaz, Jr., a Unilever Philippines merchandiser both of Ororama
Mega Center, with intent to gain and without the knowledge and consent of the owner thereof, did then and there
wilfully, unlawfully and feloniously take, steal and carry away 14 cartons of Ponds White Beauty Cream valued at
₱28,627,20, belonging to Ororama Mega Center, represented by William Michael N. Arcenio, thus, performing all the
acts of execution which would produce the crime of theft as a consequence but, nevertheless, did not produce it by
reason of some cause independent of accused’s will, that is, they were discovered by the employees of Ororama
Mega Center who prevented them from further carrying away said 14 cartons of Ponds White Beauty Cream, to the
damage and prejudice of the Ororama Mega Center.
Article 308 in relation to Article 309, and 6 of the Revised Penal Code. 4
Version of the Prosecution
To prove the guilt of the accused, the prosecution presented Damalito Ompoc (Ompoc),a security guard; and William
Michael N. Arcenio (Arcenio), the Customer Relation Officer of Ororama Mega Center (Ororama),as its witnesses.
Through their testimonies, the prosecution established that on or about October 6, 2002, Ompoc saw Canceran
approach one of the counters in Ororama; that Canceran was pushing a cart which contained two boxes of Magic
Flakes for which he paid ₱1,423.00; that Ompoc went to the packer and asked if the boxes had been checked; that
upon inspection by Ompoc and the packer, they found out that the contents of the two boxes were not Magic Flakes
biscuits, but 14 smaller boxes of Ponds White Beauty Cream worth ₱28,627.20; that Canceran hurriedly left and a
chase ensued; that upon reaching the Don Mariano gate, Canceran stumbled as he attempted to ride a jeepney; that
after being questioned, he tried to settle with the guards and even offered his personal effects to pay for the items he
tried to take; that Arcenio refused to settle; and that his personal belongings were deposited in the office of Arcenio. 5
Version of the Defense
Canceran vehemently denied the charges against him. He claimed that he was a promo merchandiser of La Tondeña,
Inc. and that on October 6, 2002, he was in Ororama to buy medicinefor his wife. On his way out, after buying
medicine and mineral water, a male person ofaround 20 years of age requested him to pay for the items in his cart at
the cashier; that he did not know the name of this man who gavehim ₱1,440.00 for payment of two boxes labelled
Magic Flakes; that he obliged with the request of the unnamed person because he was struck by his conscience; that
he denied knowing the contents of the said two boxes; that after paying at the cashier, he went out of Ororama
towards Limketkai to take a jeepney; that three persons ran after him, and he was caught; that he was brought to the
4th floor of Ororama, where he was mauled and kicked by one of those who chased him; that they took his Nokia 5110
cellular phone and cash amounting to ₱2,500.00; and that Ompoc took his Seiko watch and ring, while a certain
Amion took his necklace.6
Canceran further claimed that an earlier Information for theft was already filed on October 9,2002 which was
eventually dismissed. In January 2003, a second Information was filed for the same offense over the same incident
and became the subject of the present case.7
The Ruling of the Regional Trial Court
In its Judgment, dated September 20, 2007, the RTC found Canceran guilty beyond reasonable doubt of
consummated Theft in line with the ruling of the Court in Valenzuela v. People 8 that under Article 308 of the Revised
Penal Code (RPC),there is no crime of "Frustrated Theft." Canceran was sentenced to suffer the indeterminate
penalty of imprisonment from ten (10) years and one (1) day to ten (10) years, eight (8) months of prision mayor, as
minimum, to fourteen (14) years, eight (8) months of reclusion temporal, as maximum. 9
The RTC wrote that Canceran’s denial deserved scant consideration because it was not supported by sufficient and
convincing evidence and no disinterested witness was presented to corroborate his claims. As such, his denial was
considered self-serving and deserved no weight. The trial court was also of the view that his defense, that the
complaint for theft filed against him before the sala of Judge Maximo Paderanga was already dismissed, was not
persuasive. The dismissal was merely a release order signed by the Clerk of Court because he had posted bail. 10
The Ruling of the Court of Appeals
Aggrieved, Canceran filed an appeal where he raised the issue of double jeopardy for the first time. The CA held that
there could be no double jeopardy because he never entered a valid plea and so the first jeopardy never attached. 11
The CA also debunked Canceran’s contention that there was no taking because he merely pushed the cart loaded
with goods to the cashier’s booth for payment and stopped there. The appellate court held that unlawful taking was
deemed complete from the moment the offender gained possession of the thing, even if he had no opportunity to
dispose of the same.12
The CA affirmed with modification the September 20, 2007 judgment of the RTC, reducing the penalty ranging from
two (2) years, four (4) months and one (1) day of prision correccional, as minimum, to eight (8) years, eight (8) months
and one (1) day of prision mayor, as maximum. Canceran moved for the reconsideration of the said decision, but his
motion was denied by the CA in its March 7, 2013 resolution.
Hence, this petition.
As can be synthesized from the petition and other pleadings, the following are the issues: 1] whether Canceran should
be acquitted in the crime of theft as it was not charged in the information; and 2] whether there was double jeopardy.
Canceran argues that the CA erred in affirming his conviction. He insists that there was already double jeopardy as the
first criminal case for theft was already dismissed and yet he was convicted in the second case. Canceran also
contends that there was no taking of the Ponds cream considering that "the information in Criminal Case No. 2003-
141 admits the act of the petitioner did not produce the crime of theft." 13 Thus, absent the element of taking, the felony
of theft was never proved.
In its Comment,14 the Office of the Solicitor General (OSG)contended that there was no double jeopardy as the first
jeopardy never attached. The trial court dismissed the case even before Canceran could enter a plea during the
scheduled arraignment for the first case. Further, the prosecution proved that all the elements of theft were present in
this case.
In his Reply,15 Canceran averred that when the arraignment of the first case was scheduled, he was already bonded
and ready to enter a plea. It was the RTC who decided that the evidence was insufficient or the evidence lacked the
element to constitute the crime of theft. He also stressed that there was no unlawful taking as the items were
assessed and paid for.
The Court's Ruling
The Court finds the petition partially meritorious.
Constitutional Right of the
Accused to be Informed of
the Nature and Cause of
Accusation against Him.
No less than the Constitution guarantees the right of every person accused in a criminal prosecution to be informed of
the nature and cause of accusation against him. 16 It is fundamental that every element of which the offense is
composed must be alleged in the complaint or information. The main purpose of requiring the various elements of a
crime to be set out in the information is to enable the accused to suitably prepare his defense. He is presumed to have
no independent knowledge of the facts that constitute the offense. 17
Under Article 308 of the RPC, the essential elements of theft are (1) the taking of personal property; (2) the property
belongs to another; (3) the taking away was done with intent of gain; (4) the taking away was done without the
consent of the owner; and (5) the taking away is accomplished without violence or intimidation against person or force
upon things. "Unlawful taking, which is the deprivation of one’s personal property, is the element which produces the
felony in its consummated stage. At the same time, without unlawful taking as an act of execution, the offense could
only be attempted theft, if at all."18
"It might be argued, that the ability of the offender to freely dispose of the property stolen delves into the concept of
‘taking’ itself, in that there could be no true taking until the actor obtains such degree of control over the stolen item.
But even if this were correct, the effect would be to downgrade the crime to its attempted, and not frustrated stage, for
it would mean that not all the acts of execution have not been completed, the "taking not having been accomplished." 19
A careful reading of the allegations in the Information would show that Canceran was charged with "Frustrated Theft"
only. Pertinent parts of the Information read:
x x x did then and there wilfully, unlawfully and feloniously take, steal and carry away 14 cartons of Ponds White
Beauty Cream valued at ₱28,627,20, belonging to Ororama Mega Center, represented by William Michael N. Arcenio,
thus performing all the acts of execution which would produce the crime of theft as a consequence, but nevertheless,
did not produce it by reason of some cause independent of accused’s will x x x.
[Emphasis and Underscoring Supplied]
As stated earlier, there is no crime of Frustrated Theft. The Information can never be read to charge Canceran of
consummated Theft because the indictment itself stated that the crime was never produced. Instead, the Information
should be construed to mean that Canceran was being charged with theft in its attempted stage only. Necessarily,
Canceran may only be convicted of the lesser crime of Attempted Theft.
"[A]n accused cannot be convicted of a higher offense than that with which he was charged in the complaint or
information and on which he was tried. It matters not how conclusive and convincing the evidence of guilt may be, an
accused cannot be convicted in the courts of any offense, unless it is charged in the complaint or information on which
he is tried, or necessarily included therein. He has a right to be informed as to the nature of the offense with which he
is charged before he is put on trial, and to convict him of an offense higher than that charged in the complaint or
information on which he is tried would be an unauthorized denial of that right." 20 Indeed, an accused cannot be
convicted of a crime, even if duly proven, unless it is alleged or necessarily included in the information filed against
him.21 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. 22
The crime of theft in its consummated stage undoubtedly includes the crime in its attempted stage. In this case,
although the evidence presented during the trial prove the crime of consummated Theft, he could be convicted of
Attempted Theft only. Regardless of the overwhelming evidence to convict him for consummated Theft, because the
Information did not charge him with consummated Theft, the Court cannot do so as the same would violate his right to
be informed of the nature and cause of the allegations against him, as he so protests.
The Court is not unmindful of the rule that "the real nature of the criminal charge is determined, not from the caption or
preamble of the information nor from the specification of the law alleged to have been violated – these being
conclusions of law – but by the actual recital of facts in the complaint or information." 23 In the case of Domingo v.
Rayala,24 it was written:
What is controlling is not the title of the complaint, nor the designation of the offense charged or the particular law or
part thereof allegedly violated, these being mere conclusions of law made by the prosecutor, but the description of the
crime charged and the particular facts therein recited. The acts or omissions complained of must be alleged in such
form as is sufficient to enable a person of common understanding to know what offense is intended to be charged, and
enable the court to pronounce proper judgment. No information for a crime will be sufficient if it does not accurately
and clearly allege the elements of the crime charged. Every element of the offense must be stated in the information.
What facts and circumstances are necessary to be included therein must be determined by reference to the definitions
and essentials of the specified crimes. The requirement of alleging the elements of a crime in the information is to
inform the accused of the nature of the accusation against him so as to enable him to suitably prepare his defense. 25
In the subject information, the designation of the prosecutor of the offense, which was "Frustrated Theft," may be just
his conclusion. Nevertheless, the fact remains that the charge was qualified by the additional allegation, "but,
nevertheless, did not produce it by reason of some cause independent of accused’s will, that is, they were discovered
by the employees of Ororama Mega Center who prevented them from further carrying away said 14 cartons of Ponds
White Beauty Cream, x x x.26 This averment, which could also be deemed by some as a mere conclusion, rendered
the charge nebulous. There being an uncertainty, the Court resolves the doubt in favor of the accused, Canceran, and
holds that he was not properly informed that the charge against him was consummated theft.
No double jeopardy when
the first jeopardy never
attached
Anent the issue of double jeopardy, the Court finds no reason to deviate from the ruling of the CA.
No person shall be twice put in jeopardy for punishment for the same offense. The rule of double jeopardy has a
settled meaning in this jurisdiction. It means that when a person is charged with an offense and the case is terminated
either by acquittal or conviction or in any other manner without the consent of the accused, the latter cannot again be
charged with the same or identical offense. This principle is founded upon the law of reason, justice and conscience. 27
Canceran argues that double jeopardy exists as the first case was scheduled for arraignment and he, already bonded,
was ready to enter a plea. It was the RTC who decided that there was insufficient evidence to constitute the crime of
theft.
To raise the defense of double jeopardy, three requisites must be present: (1) a first jeopardy must have attached prior
to the second; (2) the first jeopardy must have been validly terminated; and (3) the second jeopardy must be for the
same offense as that in the first. Legal jeopardy attaches only (a) upon a valid indictment, (b) before a competent
court, (c) after arraignment, (d) a valid plea having been entered; and (e) the case was dismissed or otherwise
terminated without the express consent of the accused. 28
Here, the CA correctly observed that Canceran never raised the issue of double jeopardy before the
RTC.1âwphi1 Even assuming that he was able to raise the issue of double jeopardy earlier, the same must still fail
because legal jeopardy did not attach. First, he never entered a valid plea. He himself admitted that he was just about
to enter a plea, but the first case was dismissed even before he was able to do so. Second, there was no
unconditional dismissal of the complaint. The case was not terminated by reason of acquittal nor conviction but simply
because he posted bail. Absent these two elements, there can be no double jeopardy.
Penalty of Attempted Theft
The penalty for consummated theft is prision mayor in its minimum and medium periods. 29 The penalty lower by two
degrees than that prescribed by law for the consummated felony shall be imposed upon principals in an attempt to
commit a felony.30 The basis for reduction of penalty by two degrees is the penalty prescribed by law for the
consummated crime. Also, when the offenses defined in the RPC are punished with a penalty composed of two
periods, like in the crime of theft, the penalty lower by one degree is formed by two periods to be taken from the same
penalty prescribed.31
Here, the products stolen were worth ₱28,627.20. Following Article 309 par. 1 of the RPC, the penalty shall be the
maximum period of the penalty prescribed in. the same paragraph, because the value of the things stolen exceeded
₱22,000.00. In other words, a special aggravating circumstance shall affect the imposable penalty.
Applying the Indeterminate Sentence Law, the minimum penalty should be within the range of Arresto Mayor Minimum
to Arresto Mayor Medium. In view of the special aggravating circumstance under Article 309 (1), the maximum penalty
should be Arresto Mayor Maximum to Prision Correccional Minimum in its maximum period.
WHEREFORE, the petition is PARTIALLY GRANTED. The August 10, 2012 Decision and the March 7, 2013
Resolution of the Court of Appeals in CA-G.R. CR No. 00559 are hereby MODIFIED, in that, the Court finds accused
Jovito Canceran guilty beyond reasonable doubt of the crime of Attempted Theft.
Accordingly, the Court sentences the accused to suffer the indeterminate prison term ranging from Four (4) Months of
Arresto Mayor, as minimum, to Two (2) Years, Four (4) Months of Prision Correccional, as maximum.
SO ORDERED.

PEOPLE OF THE PHILIPPINES vs. CHRISTOPHER PAREJA


G.R. No. 188979 September 5, 2012
BRION, J.:
This is an appeal from the June 15, 2009 decision1 of the Court of Appeals (CA) in CA-G.R. CR HC No. 02759. TheCA
affirmed the February 22, 2007 decision2
of the Regional Trial Court (RTC), Branch 209, Mandaluyong City, finding appellant Christopher Pareja guilty beyond
reasonable doubt of the crime of rape and sentencing him to suffer the penalty of reclusion perpetua.
THE CASE
The prosecution charged the appellant before the RTC with the crime of rape under an Amended Information that
reads:
That on or about the 16th day of June 2003, in the City of Mandaluyong, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously lie and have carnal
knowledge of AAA,3 13 years of age, sister of the common law spouse of accused, against her will and consent, thus
debasing and/or demeaning the intrinsic worth and dignity of the victim thereby prejudicing her normal development as
a child.4
The evidence for the prosecution disclosed that at around 3:30 a.m. of June 16, 2003, AAA was sleeping beside her
two-year old nephew, BBB, on the floor of her sister’s room, when the appellant hugged her and kissed her nape and
neck.5 AAA cried, but the appellant covered her and BBB with a blanket. 6 The appellant removed AAA’s clothes, short
pants, and underwear; he then took off his short pants and briefs. 7 The appellant went on top of AAA, and held her
hands. AAA resisted, but the appellant parted her legs using his own legs, and then tried to insert his penis into her
vagina.8 The appellant stopped when AAA’s cry got louder; AAA kicked the appellant’s upper thigh as the latter was
about to stand up. The appellant put his clothes back on, and threatened to kill AAA if she disclosed the incident to
anyone. Immediately after, the appellant left the room. 9 AAA covered herself with a blanket and cried.10
At around 6:00 a.m. of the same day, AAA’s brother, CCC, went to her room and asked her why she was lying on the
floor and crying. AAA did not answer, and instead hurled invectives at CCC. 11 AAA went to the house of her other
brother, but the latter was not in his house. AAA proceeded to the house of her older sister, DDD, at Block 19,
Welfareville Compound, and narrated to her what had happened. Afterwards, AAA and her two (2) siblings went to the
Women and Children’s Desk of the Mandaluyong City Police Station and reported the incident. 12
For his defense, the appellant declared on the witness stand that he hauled "filling materials" at his house, located at
Block 38, Fabella Compound, on the evening of June 15, 2003. At around 10:00 p.m., he went to his room and
slept.13 On the next day, the appellant, accompanied by his mother and brother-in-law, went to the municipal hall to ask
for financial assistance for his wife who was confined in the hospital. Upon arrival at the hospital, the doctor told him
that his wife needed blood. Immediately after, the appellant and his companions went to Pasig City to find blood
donors.14
On the evening of June 16, 2003, and while the appellant was folding the clothes of his son, two policemen entered
his house and informed him that a complaint for attempted rape had been filed against him. The police brought him to
the Criminal Investigation and Detection Group, forced him to admit the crime, mauled him, and then placed him in a
detention cell.15 The appellant added that he filed a complaint before the Office of the Ombudsman against the police
officers who beat him up.16
The RTC convicted the appellant of rape in its decision of February 22, 2007, under the following terms:
WHEREFORE, the Court finds accused CHRISTOPHER PAREJA y VELASCO GUILTY beyond reasonable doubt of
the crime of RAPE and hereby sentences him as he is hereby sentenced to suffer the penalty of reclusion perpetua;
and to indemnify the victim, AAA, the amount of ₱ 50,000.00 as moral damages and ₱ 50,000.00 as civil indemnity. 17
The CA, in its decision dated June 15, 2009, affirmed the RTC decision. It explained that a slight penetration of the
labia by the male organ is sufficient to constitute rape, and held that a slight penetration took place when the
appellant’s penis touched AAA’s vagina as he was trying to insert it.
The appellate court further ruled that the presence of people in the other room did not make it impossible for the
appellant to have raped the victim, because lust is no respecter of time and place. It also held that the victim’s lack of
tenacity in resisting the appellant’s sexual aggression did not amount to consent or voluntary submission to the
criminal act.18
In his brief,19 the appellant argued that the lower courts erred in convicting him for the crime of rape, as the prosecution
failed to prove even the slightest penetration of his penis into the victim’s vagina. He added that the victim’s testimony
was incredible and contrary to human experience.
THE COURT’S RULING
We find that the prosecution failed to prove the appellant’s guilt beyond reasonable doubt of the crime of
consummated rape. We convict him instead of attempted rape, as the evidence on record shows the presence of all
the elements of this crime.
Carnal Knowledge Not Proven With
Moral Certainty
By definition, rape is committed by having carnal knowledge of a woman with the use of force, threat or intimidation, or
when she is deprived of reason or otherwise unconscious, or when she is under 12 years of age or is
demented.20 "Carnal knowledge is defined as the act of a man having sexual intercourse or sexual bodily connections
with a woman."21 Carnal knowledge of the victim by the accused must be proven beyond reasonable doubt,
considering that it is the central element in the crime of rape. 22
In her testimony of February 9, 2004, AAA recounted the alleged rape, as follows:
FISCAL TRONCO:
Q: You said that the three of you then was (sic) sleeping on the floor, what is it that happened on that particular day
and time that is unusual?
A: It was like somebody was embracing me or hugging me, ma’am.
Q: When you felt that some (sic) is embracing and hugging you, what did you do?
A: I didn’t mind it because I thought that the person beside me just moved and when he made the movement, it’s like
that I was embraced, ma’am.
Q: Whom are you referring to?
A: My brother-in-law, ma’am.
Q: And after that, what else happened, if any, AAA?
A: Before that happened, my nephew cried and so I picked him up and put him on my chest and after a while, I slept
again and brought him down again and then "dumapa po ako" and I felt that somebody was kissing my nape, ma’am.
Q: Were you able to see who was that somebody kissing your nape?
A: When I tried to evade, I looked on my side where the room was not that dark that I could not see the person and
so, I saw that it was my brother-in-law, ma’am.
xxxx
Q: When you saw that it was your brother-in-law kissing your nape while you were on a prone position, what else
happened, if any?
A: He kissed my neck, ma’am.
Q: What was your position while he was kissing your neck?
A: I was on my side at that time and I was also crying, ma’am.
xxxx
Q: Why were you crying at that time while he was kissing your neck?
A: I was afraid of what will happen next, ma’am.
Q: Aside from that incident that he was kissing your neck, was there any other previous incident that happened?
A: Yes, ma’am.
xxxx
Q: What incident was that?
A: At that time, my brother-in-law covered me and my nephew with a blanket and he tried to get my clothes off,
ma’am.
Q: When did this happen, AAA?
A: Also on said date, ma’am.
Q: You said that he covered you and your nephew with a blanket and then taking (sic) off your clothes?
A: Yes, ma’am.
xxxx
Q: Was he able to take off your clothes?
A: Yes, ma’am.
Q: What particular clothing was he able to take off?
A: My short pants and underwear, ma’am.
Q: While he was taking off your short pants and your underwear, what did you do, if any?
A: I tried to fight him off, ma’am.
xxxx
Q: You said that he was trying to take off your clothes and undergarments, what was your position at that time?
A: I was lying down, ma’am.
Q: What about him?
A: He was on my lap, ma’am.
xxxx
Q: You said that you saw him take off his short pants?
A: Yes, ma’am.
xxxx
Q: Did he also take off his brief?
A: Yes, ma’am.
xxxx
Q: And after that what happened, AAA?
A: After removing his undergarments, he suddenly brought his body on top of me and he held my hands. At that time
I was crying and still resisting and then he was trying to get my legs apart. I was still resisting at that time, and at some
point in time I felt weak and he was able to part my legs, ma’am.
Q: Could you please tell us how did (sic) he able to part your legs?
A: He did that with his legs while he was holding my hands, ma’am.
Q: And when he was able to part your legs, what happened next?
A: He tried to insert his sexual organ but he was not able to do so, ma’am.
Q: How did you know that he was trying to insert his sexual organ?
A: "Naidikit po niya sa ari ko."
Q: Which part of your body was he able to touch his sexual organ? (sic)
A: On my sexual organ, ma’am.
xxxx
Q: You mentioned earlier that he was not able to penetrate your private part, AAA?
A: Yes, ma’am.
Q: So, what happened after that?
A: I cried and then while I was resisting, I hit my wrist on the wall and my wrist was "nagasgas," ma’am.
xxxx
Q: And were you able to successfully resist?
A: Yes, ma’am, I was able to kicked (sic) his upper thigh, ma’am. 23 (italics supplied; emphasis ours)
From the foregoing, we find it clear that the appellant’s penis did not penetrate, but merely ‘touched’ (i.e., "naidikit"),
AAA’s private part. In fact, the victim confirmed on cross-examination that the appellant did not succeed in
inserting his penis into her vagina. Significantly, AAA’s Sinumpaang Salaysay24 also disclosed that the appellant
was holding the victim’s hand when he was trying to insert his penis in her vagina. This circumstance – coupled with
the victim’s declaration that she was resisting the appellant’s attempt to insert his penis into her vagina – makes penile
penetration highly difficult, if not improbable. Significantly, nothing in the records supports the CA’s conclusion that the
appellant’s penis penetrated, however slightly, the victim’s female organ.
Did the touching by the appellant’s penis of the victim’s private part amount to carnal knowledge such that the
appellant should be held guilty of consummated rape?
In People v. Campuhan,25 the Court laid down the parameters of genital contact in rape cases, thus:
Thus, touching when applied to rape cases does not simply mean mere epidermal contact, stroking or grazing of
organs, a slight brush or a scrape of the penis on the external layer of the victim's vagina, or the mons pubis, as in this
case. There must be sufficient and convincing proof that the penis indeed touched the labias or slid into the female
organ, and not merely stroked the external surface thereof, for an accused to be convicted of consummated rape. As
the labias, which are required to be "touched" by the penis, are by their natural situs or location beneath the mons
pubis or the vaginal surface, to touch them with the penis is to attain some degree of penetration beneath the surface,
hence, the conclusion that touching the labia majora or the labia minora of the pudendum constitutes consummated
rape.
The pudendum or vulva is the collective term for the female genital organs that are visible in the perineal area, e.g.,
mons pubis, labia majora, labia minora, the hymen, the clitoris, the vaginal orifice, etc. The mons pubis is the rounded
eminence that becomes hairy after puberty, and is instantly visible within the surface. The next layer is the labia
majora or the outer lips of the female organ composed of the outer convex surface and the inner surface. The skin of
the outer convex surface is covered with hair follicles and is pigmented, while the inner surface is a thin skin which
does not have any hair but has many sebaceous glands. Directly beneath the labia majora is the labia minora.
Jurisprudence dictates that the labia majora must be entered for rape to be consummated, and not merely for the
penis to stroke the surface of the female organ. Thus, a grazing of the surface of the female organ or touching the
mons pubis of the pudendum is not sufficient to constitute consummated rape. Absent any showing of the slightest
penetration of the female organ, i.e., touching of either labia of the pudendum by the penis, there can be no
consummated rape; at most, it can only be attempted rape, if not acts of lasciviousness. 26 (italics supplied)
Simply put, "rape is consummated by the slightest penile penetration of the labia majora or pudendum of the female
organ."27 Without any showing of such penetration, there can be no consummated rape; at most, it can only be
attempted rape [or] acts of lasciviousness."28
As earlier discussed, the prosecution failed to present sufficient and convincing evidence to establish the required
penile penetration. AAA’s testimony did not establish that the appellant’s penis touched the labias or slid into her
private part. Aside from AAA’s testimony, no other evidence on record, such as a medico-legal report, could confirm
whether there indeed had been penetration, however slight, of the victim’s labias. In the absence of testimonial or
physical evidence to establish penile penetration, the appellant cannot be convicted of consummated rape.
Article 6 of the Revised Penal Code, as amended, states that there is an attempt when the offender commenced the
commission of the crime directly by overt acts but does not perform all the acts of execution by reason of some cause
or accident other than his own spontaneous desistance. In People v. Publico,29 we ruled that when the "touching" of
the vagina by the penis is coupled with the intent to penetrate, attempted rape is committed;otherwise, the
crime committed is merely acts of lasciviousness.
In the present case, the appellant commenced the commission of rape by the following overt acts: kissing AAA’s nape
and neck; undressing her; removing his clothes and briefs; lying on top of her; holding her hands and parting her legs;
and trying to insert his penis into her vagina. The appellant, however, failed to perform all the acts of execution which
should produce the crime of rape by reason of a cause other than his own spontaneous desistance, i.e., the victim's
loud cries and resistance. The totality of the appellant’s acts demonstrated the unmistakable objective to insert his
penis into the victim’s private parts.
A review of jurisprudence reveals that the Court has not hesitated to strike down convictions for consummated rape
when the evidence failed to show that penetration, however slight, of the victim’s vagina took place. In People v.
Bon,30 the Court found the appellant guilty of attempted rape only, as there was no indication that the appellant’s penis
even touched the labia of the pudendum of the victim. We further held that the appellant could not be convicted of
consummated rape by presuming carnal knowledge out of pain.
The Court had a similar ruling in People v. Miranda,31 where the accused tried to insert his penis into the victim’s
private parts, but was unsuccessful, so he inserted his fingers instead. We convicted the accused of attempted rape
only due to lack of evidence to establish that there was even a slight penile penetration. We noted, however, that the
appellant’s act of inserting his fingers would have constituted rape through sexual assault had the offense occurred
after the effectivity of the Anti-Rape Law of 1997.
In People v. Alibuyog,32 the victim declared that the accused placed his penis on her vagina; and claimed that it
touched her private parts. The Court set aside the accused’s conviction for rape, and convicted him of attempted rape
only, because we found the victim’s testimony too ambiguous to prove the vital element of penile penetration. We
added that the victim’s testimony was "replete with repeated denial of penile insertion." 33
Similarly, in People v. Quarre,34 the evidence for the prosecution consisted only of the victim’s testimony that the
accused tried, but failed, to insert his penis into her vagina, and she felt pain in the process. No medico-legal
examination report was presented in evidence. Accordingly, the Court reversed the accused’s conviction for rape, and
found him guilty of attempted rape only.
In People v. Ocomen,35 the Court also set aside the appellant’s conviction for rape because no proof was adduced of
even the slightest penetration of the female organ, aside from a general statement of the victim that she had been
"raped."
People v. Monteron36 is another noteworthy case where the Court set aside the appellant’s conviction for rape. In this
case, the victim testified that the accused placed his penis on top of her vagina, and that she felt pain. In finding the
accused guilty of attempted rape only, we held that there was no showing that the accused’s penis entered the victim’s
vagina. We added that the pain that the victim felt might have been caused by the accused’s failed attempts to insert
his organ into her vagina.
In People v. Mariano,37 the accused tried to insert his penis into the victim’s vagina, but failed to secure penetration.
The Court set aside the accused’s conviction for three (3) counts of rape and found him guilty of attempted rape only.
We explained the necessity of carefully ascertaining whether the penis of the accused in reality entered the labial
threshold of the female organ to accurately conclude that rape had been consummated.
In People v. Arce, Jr.,38 the Court found the accused guilty of attempted rape only, because the victim did not declare
that there was the slightest penetration, which was necessary to consummate rape. On the contrary, she categorically
stated that the accused was not able to insert his penis into her private parts because she was moving her hips away.
We further ruled that the victim’s attempt to demonstrate what she meant by "idinidikit ang ari" was unavailing to prove
that rape had been consummated.
In People v. Francisco,39 the victim testified that the accused "poked" her vagina. The Court set aside the accused’s
conviction for qualified rape, and convicted him instead only of attempted rape after failing to discern from the victim's
testimony that the accused attained some degree of penile penetration, which was necessary to consummate
rape.1âwphi1
In People v. Dimapilis,40 the Court refused to convict the accused for consummated rape on the basis of the victim's
testimony that she felt the accused's penis pressed against her vagina as he tried to insert it. We explained that in
order to constitute consummated rape, there must be entry into the vagina of the victim, even if only in the slightest
degree.
Finally, in People v. Tolentino,41 the Court reversed the accused’s conviction for rape and convicted him of attempted
rape only, as there was paucity of evidence that the slightest penetration ever took place. We reasoned out that the
victim’s statements that the accused was "trying to force his sex organ into mine" and "binundol-undol ang kanyang
ari" did not prove that the accused’s penis reached the labia of the pudendum of the victim’s vagina.
"In rape cases, the prosecution bears the primary duty to present its case with clarity and persuasion, to the end that
conviction becomes the only logical and inevitable conclusion." 42 We emphasize that a conviction cannot be made to
rest on possibilities; strongest suspicion must not be permitted to sway judgment. In the present case, the prosecution
failed to discharge its burden of proving all the elements of consummated rape.
The Proper Penalty and Indemnities
Under Article 51 of the Revised Penal Code, the imposable penalty for attempted rape is two degrees lower than the
prescribed penalty of reclusion perpetua for consummated rape. Two degrees lower from reclusion perpetua is prision
mayor whose range is six (6) years and one (1) day to 12 years. Without any attendant aggravating or mitigating
circumstances and applying the Indeterminate Sentence Law, the maximum of the penalty to be imposed upon the
appellant is prision mayor in its medium period, while the minimum shall be taken from the penalty next lower in
degree, which is prision correccional whose range is six (6) months and one (1) day to six (6) years, in any of its
periods. Accordingly, we sentence the appellant to suffer the indeterminate penalty of six (6) years of prision
correccional, as minimum, to 10 years of prision mayor, as maximum.
In addition, we order the appellant to pay the victim ₱ 30,000.00 as civil indemnity, ₱ 25,000.00 as moral damages
and ₱ 10,000.00 as exemplary damages, in accordance with prevailing jurisprudence on attempted rape cases. 43
WHEREFORE, premises considered, the June 15, 2009 decision of the Court of Appeals in CA-G.R. CR HC No.
02759 is MODIFIED, as follows:
The appellant's conviction for the crime of rape is VACATED, and
(1) we find appellant Christopher Pareja y Velasco GUILTY of the crime of ATTEMPTED RAPE;
(2) we SENTENCE him to suffer the indeterminate penalty of six ( 6) years of prision correccional, as
minimum, to 10 years of prision mayor, as maximum; and
(3) we ORDER him to PAY the victim the amounts of ₱ 30,000.00 as civil indemnity; ₱ 25,000.00 as moral
damages; and ₱ 10,000.00 as exemplary damages.
SO ORDERED.

NORBERTO CRUZ vs. PEOPLE OF THE PHILIPPINES


G.R. No. 166441 October 8, 2014
BERSAMIN, J.:
The intent of the offender to lie with the female defines the distinction between attempted rape and acts of
lasciviousness. The felony of attempted rape requires such intent; the felony of acts of lasciviousness does not. Only
the direct overt acts of the offender establish the intent to lie with the female. However, merely climbing on top of a
naked female does not constitute attempted rape without proof of his erectile penis being in a position to penetrate the
female's vagina.
The Case
This appeal examines the decision promulgated on July 26, 2004, 1 whereby the Court of Appeals (CA) affirmed the
conviction for attempted rape of the petitioner by the Regional Trial Court, Branch 34, in Balaoan, La Union (RTC), and
imposing on him the indeterminate penalty of imprisonment of four (4) years and two (2) months of prision
correccional, as minimum, to ten (10) years of prision mayor, as maximum, and ordering him to pay moral damages of
₱20,000.00 to AAA,2 the victim.
Antecedents
The petitioner was charged in the RTC with attempted rape and acts of lasciviousness involving different victims. At
arraignment, he pleaded not guiltyto the respective informations, to wit: Criminal Case No. 2388
Attempted Rape
That on or about the 21st day of December 1993, at about 2:00 o'clock in the morning, along the Bangar-Luna Road,
Barangay Central West No. 2, Municipality of Bangar,Province of La Union, Philippines and within the jurisdiction of
this Honorable Court, said accused, did then and there willfully, unlawfully and feloniously and by means of force and
intimidation commenced the commission ofrape directly byovert acts, to wit: While private complainant AAA, an
unmarried woman, fifteen (15) yearsold, was sleeping inside the tentalong Bangar-Luna Road, the said accused
remove her panty and underwear and lay on top of said AAA embracing and touching her vagina and breast with
intent of having carnal knowledge of her by means of force, and if the accused did not accomplish his purpose that is
to have carnal knowledge of the said AAA it was not because of his voluntary desistance but because the said
offended party succeeded in resisting the criminal attempt of said accused to the damage and prejudice of said
offended party.
CONTRARY TO LAW.3
Criminal Case No. 2389
Acts of Lasciviousness
That on or about the 21st day of December 1993, at about 3:00 o’clock in the morning, along the Bangar-Luna Road,
Barangay Central West No. 2, Municipality of Bangar, Province of La Union, Philippines and within the jurisdiction of
this Honorable Court, the above-named accused with lewd design, did then and there willfully, unlawfully and
feloniously touch the vagina of [BBB]4 against the latter’s will and with no other purpose but to satisfy his lascivious
desire to the damage and prejudice of said offended party.
CONTRARY TO LAW.5
Version of the Prosecution
The CA summarized the version of the Prosecution as follows: 6
x x x [Petitioner] Norberto Bartolome and [his wife] Belinda Cruz were engaged in the selling of plastic wares and
glass wares in different municipalities around the country. On December 20, 1993, Norberto and Belinda employed
AAA and BBB to help them in selling their wares in Bangar, La Union which was then celebrating its fiesta. From
Libsong East, Lingayen, Pangasinan to Bangar, La Union, AAA and BBB boarded a passenger jeepney owned by
Norberto. The young girls were accompanied by Norberto, Belinda, Ruben Rodriguez (driver) and a sales boy by the
name of "Jess".
Upon reaching Bangar, La Union, at around 8:00 in the evening of December 20, 1993, they parked in front of Maroon
enterprises. They brought out all the goods and wares for display. Two tents were fixed in order that they will have a
place to sleep. Belinda and the driver proceeded to Manila in order to get more goods to be sold.
On December 21, 1993, at around 1:00 o’clock in the morning, AAA and BBB went to sleep. Less thanan hour later,
AAA was awakened when she felt that somebody was on top of her. Norberto was mashing her breast and touching
her private part. AAA realized that she was divested of her clothing and that she was totally naked. Norberto ordered
her not to scream or she’ll be killed. AAA tried to push Norberto away and pleaded to have pity on her but her pleas
fell on deaf ears. She fought back and kicked Norberto twice.
Norberto was not able to pursue his lustful desires. Norberto offered her money and told her not totell the incident to
her mother otherwise, she will be killed. AAA went out of the tent to seek help from Jess (the house boy) but she failed
to wake him up.
Thirty minutes later, when AAA returned to their tent, she saw Norberto touching the private parts of BBB. AAA saw
her companion awake but her hands wereshaking. When she finally entered the tent, Norberto left and went outside.
Later that day, AAA and BBB narrated to Jess the incident that took place that early morning. Later still, while they
were on their way to fetch water, AAA and BBB asked the people around where they can find the municipal building.
An old woman pointed to them the place.
In the evening of December 21, 1993, AAA and BBB went straight to the municipal hall where they met a policeman by
the name of "Sabas".
They told Sabas the sexual advances made to them by Norberto. Norberto was summoned to the police station where
he personally confronted his accusers. When Norberto’s wife, Belinda, arrived at the police station, an argument
ensued between them.
On December 22, 1993, at around 2:20 o’clock in the morning, the police investigator ordered the complainants to
return at6:00 o’clock in the morning. Norberto and Belinda were still able to bring AAA and BBB home with them and
worked for them until December 30, 1994, after which they were sent back to Lingayen, Pangasinan.
On January 10, 1994, AAA and BBB went back to La Union and executed their respective sworn statements against
Norberto.
Version of the Defense
The petitioner denied the criminal acts imputed to him. His version was presented in the assailed decision of the
CA,7 as follows:
In a bid to exculpate himself, accused-appellant presents a totally different version of the story. The accused maintains
that it was not possible for him to commit the crimes hurled against him. On the date of the alleged incident, there
were many people around who were preparing for the "simbang gabi". Considering the location of the tents, which
were near the road and the municipal hall, he could not possibly do the dastardly acts out in the open, not to mention
the fact that once AAA and BBB would scream, the policemen in the municipal hall could hear them. He believes that
the reason why the complainants filed these cases against him was solely for the purpose of extorting money from
him.
Judgment of the RTC
After the joint trial of the two criminal cases, the RTC rendered its judgment on April 6, 2000 finding the petitioner guilty
beyond reasonable doubt of attempted rape in Criminal Case No. 2388 and acts of lasciviousness in Criminal Case
No. 2389,8 to wit:
WHEREFORE, in the light of the foregoing, the Court hereby renders judgment declaring the accused NORBERTO
CRUZ Y BARTOLOME guilty beyond reasonable doubt of the crimes of ATTEMPTED RAPE and ACTS OF
LASCIVIOUSNESS as defined and penalized in Article 335 in relation with (sic) Article 6, par. 3 and Article 336 of the
Revised Penal Code respectively. With respect to the crime of ATTEMPTED RAPE, the Court hereby sentences the
accused to suffer an indeterminate penalty of imprisonment from FOUR (4) YEARS and TWO (2) MONTHS PRISION
CORRECCIONAL as Minimum to TEN (10) YEARS PRISION MAYOR as Maximum and the accessory penalties
provided for by law and to pay the victim AAA the amount of ₱20,000.00 as moral damages.
With regard to the crime ofACTS OF LASCIVIOUSNESS, the Court hereby sentences the accused to suffer an
indeterminate penalty of imprisonment from FOUR (4) MONTHS ARRESTO MAYOR as Minimum to FOUR (4)
YEARS and TWO (2) MONTHS PRISION CORRECCIONAL as Maximum and the accessory penalties provided for by
law, and to pay the victim BBBthe amount of ₱10,000.00 as moral damages.
The preventive imprisonment suffered by the accused by reason of the two cases is counted in his favor.
SO ORDERED.9
Decision of the CA
On appeal, the petitioner contended that the RTC gravely erred in convicting him of attempted rape despite the
dubious credibility of AAA, and of acts of lasciviousness despite the fact that BBB did not testify.
On July 26, 2004, the CA promulgated its decision affirming the conviction of the petitioner for attempted rape in
Criminal Case No. 2388, but acquitting him of the acts of lasciviousness charged in Criminal Case No. 2389 due to the
insufficiency of the evidence,10 holding thusly:
In sum, the arguments of the accused-appellant are too puerile and inconsequential as to dent, even slightly, the
overall integrity and probative value of the prosecution's evidence insofar as AAA is concerned.
Under Article 51 of the Revised Penal Code, the penalty for an attempted felony is the "penalty lower by two (2)
degrees" prescribed by law for the consummated felony. In this case, the penalty for rape if it had been consummated
would have been reclusion perpetuapursuant to Article 335 of the Revised Penalty Code, as amended by Republic Act
No. 7659. The penalty two degrees lower than reclusion perpetuais prision mayor.
Applying the Indeterminate Sentence Law, the maximum term of the penalty shall be the medium period of prision
mayorin the absence of any mitigating or aggravating circumstance and the minimum shall be within the range of the
penalty nextlower to that prescribed for the offense which in this case is prision correccionalin any of its periods.
We also find that the trial court correctly assessed the amount of ₱20,000.00 by way of moral damages against the
accused-appellant. In a rape case, moral damages may be awarded without the need of proof or pleading since it is
assumed that the private complainant suffered moral injuries, more so, when the victim is aged 13 to 19.
Insofar as the crime of acts of lasciviousness committed against BBB, the accused argues that there is not enough
evidence to support such accusation. BBB did not testify and neither her sworn statement was formally offered in
evidence to support the charge for acts of lasciviousness.
In this case, the evidence adducedby the prosecution is insufficient to substantiate the charge of acts of
lasciviousness against the accusedappellant. The basis of the complaint for acts of lasciviousness is the sworn
statement of BBB to the effectthat the accused-appellant likewise molested her by mashing her breast and touching
her private part. However, she was not presented to testify. While AAA claims that she personally saw the accused
touching the private parts of BBB, there was no testimony to the effect that suchlascivious acts were without the
consent or against the will of BBB.11
Issues
In this appeal, the petitioner posits that the CA’s decision was not in accord with law or with jurisprudence, particularly:
I. In giving credence to the incredulous and unbelievable testimony of the alleged victim; and
II. In convicting the accused notwithstanding the failure of the prosecution to prove the guilt of the petitioner
beyond reasonable doubt.
Anent the first issue, the petitioner assails the behavior and credibility of AAA. He argues that AAA still continued
working for him and his wife until December 30, 1994 despite the alleged attempted rape in the early morning of
December 21, 1994, thereby belying his commission of the crime against her; that he could not have undressed her
without rousing her if she had gone to sleep only an hour before, because her bra was locked at her back; that her
testimony about his having been on top of her for nearly an hour while they struggled was also inconceivable unless
she either consented to his act and yielded to his lust, or the incident did not happen at all, being the product only of
her fertileimagination; that the record does not indicate if he himself was also naked, or that his penis was poised to
penetrate her; and that she and her mother demanded from him ₱80,000.00 as settlement, under threat that she
would file a case against him.12
On the second issue, the petitioner assails the glaring inconsistencies in the testimony of AAA that cast doubt on her
veracity.
Ruling of the Court
The appeal is partly meritorious.
In an appeal under Rule 45 of the Rules of Court, 13 the Court reviews only questions of law. No review of the findings
of fact by the CA is involved. As a consequence of thisrule, the Court accords the highest respect for the factual
findings of the trial court, its assessment of the credibility of witnesses and the probative weight of their testimonies
and the conclusions drawn from its factual findings, particularly when they are affirmed by the CA. Judicial experience
has shown, indeed, that the trial courts are in the best position to decideissues of credibility of witnesses, having
themselves heard and seen the witnesses and observed firsthand their demeanor and deportment and the manner of
testifying under exacting examination. As such, the contentionsof the petitioner on the credibility of AAA as a witness
for the State cannot beentertained. He thereby raises questions of fact that are outside the scope of this appeal.
Moreover, he thereby proposes to have the Court, which is not a trier of facts, review the entire evidence adduced by
the Prosecution and the Defense.
Conformably with this limitation, our review focuses only on determining the question of law of whether or not the
petitioner’s climbing on top of the undressed AAA such thatthey faced each other, with him mashing her breasts and
touching her genitalia with his hands, constituted attempted rape, the crime for which the RTC and the CA convicted
and punished him. Based on the information, supra, he committed such acts "with intent of having carnal knowledge
ofher by means of force, and if the accused did not accomplish his purpose that is to have carnal knowledge of the
said AAA it was not because of his voluntary desistance but because the said offended party succeeded in resisting
the criminal attempt of said accused to the damage and prejudice of said offended party."
There is an attempt, according to Article 6 of the Revised Penal Code, when the offender commences the commission
of a felony directly by overt acts, and does not perform all the acts of execution which should produce the felony by
reason of some cause or accident other than this own spontaneous desistance. In People v. Lamahang, 14 the Court,
speaking through the eminent Justice Claro M.Recto, eruditely expounded on what overt acts would constitute
anattempted felony, to wit:
It is our opinion that the attempt to commit an offense which the Penal Code punishes is that which has a logical
relation to a particular, concrete offense; that, which is the beginning of the execution of the offense by overt acts of
the perpetrator, leading directly to its realization and consummation. The attempt to commit an indeterminate offense,
inasmuch as its nature in relation to its objective is ambiguous, is not a juridical fact from the standpoint of the Penal
Code. xxxx But it is not sufficient, for the purpose of imposing penal sanction, that an act objectively performed
constitute a mere beginning of execution; it is necessary to establish its unavoidable connection, like the logical and
natural relation of the cause and its effect, with the deed which, upon its consummation, will develop into one of the
offenses defined and punished by the Code; it is necessary to prove that said beginning of execution, if carried to its
complete termination following its natural course, without being frustrated by external obstacles nor by the voluntary
desistance of the perpetrator, will logically and necessarily ripen into a concrete offense. x x x x.
"It must be borne in mind (I Groizard, p. 99) that in offenses not consummated, as the material damage iswanting, the
nature of the action intended (accion fin) cannot exactly be ascertained, but the same must be inferred from the nature
of the acts of execution (accion medio). Hence, the necessity that these acts be such that by their very nature, by the
facts to which they are related, by the circumstances of the persons performing the same, and by the things
connected therewith, they must show without any doubt, that they are aimed at the consummation of a crime. Acts
susceptible of double interpretation, that is, in favor as well as against the culprit, and which show an innocent aswell
as a punishable act, must not and cannot furnish grounds by themselves for attempted or frustrated crimes. The
relation existing between the facts submitted for appreciation and the offense of which said facts are supposed to
produce must be direct; the intention must be ascertainedfrom the facts and therefore it is necessary, in order to avoid
regrettable instance of injustice, that the mind be able to directly infer from them the intention of the perpetrator to
cause a particular injury. This must have been the intention of the legislator in requiring that in order for an attempt to
exist, the offender must commence the commission of the felony directly by overt acts, that is to say, that the acts
performed must be such that, withoutthe intent to commit an offense, they would be meaningless." 15
To ascertain whether the acts performed by the petitioner constituted attempted rape, we have to determine the law on
rape in effect on December 21, 1993, when the petitioner committed the crime he was convicted of. That law was
Article 335 of the Revised Penal Code, which pertinently provided as follows:
Article335. 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 ofreason or otherwise unconscious; and
3. When the woman is under twelve years of age, even though neither of the circumstances mentioned in the
two next preceding paragraphs shall be present.
xxxx
The basic element of rape then and now is carnal knowledge of a female. Carnal knowledge isdefined simply as
"theact of a man having sexual bodily connections with a woman," 16 which explains why the slightest penetration of the
female genitalia consummates the rape. In other words, rape is consummated once the peniscapable of
consummating the sexual act touches the external genitalia of the female. 17 In People v. Campuhan,18 the Court has
defined the extent of "touching" by the penis in rape in the following terms:
[T]ouching when applied to rape cases does not simply mean mere epidermal contact, stroking or grazing of organs, a
slight brush or a scrape of the penis on the external layer of the victim’s vagina, or the mons pubis, as in this case.
There must be sufficient and convincing proof that the penis indeedtouched the labias or slid into the female organ,
and not merely stroked the external surface thereof, for an accused to be convicted of consummated rape. As the
labias, which are required to be "touched" bythe penis, are by their natural situsor location beneath the mons pubisor
the vaginal surface, to touch them with the penis is to attain some degree of penetration beneath the surface, hence,
the conclusion that touching the labia majora or the labia minora of the pudendum constitutes consummated rape.
The pudendumor vulvais the collective term for the female genital organs that are visible in the perineal area, e.g.,
mons pubis, labia majora, labia minora, the hymen, the clitoris, the vaginal orifice, etc. The mons pubisis the rounded
eminence that becomes hairy after puberty, and is instantly visible within the surface. The next layer is the labia
majoraor the outer lips of the female organ composed of the outer convex surface and the inner surface. The skin of
the outer convex surface is covered with hair follicles and is pigmented, while the inner surface is a thin skin which
does not have any hair but has many sebaceous glands. Directly beneath the labia majorais the labia minora.
Jurisprudence dictates that the labia majoramust be entered for rape to be consummated, and not merely for the penis
to stroke the surface of the female organ. xxxx Thus, a grazing of the surface of the female organ or touching the
mons pubisof the pudendum is not sufficient to constitute consummated rape. Absent any showing of the slightest
penetration of the female organ, i.e., touching of either labia of the pudendumby the penis, there can be no
consummated rape; at most, it can only be attempted rape, if not acts of lasciviousness. [Bold emphasis supplied]
It is noteworthy that in People v. Orita,19 the Court clarified that the ruling in People v. Eriñia 20 whereby the offender
was declared guilty of frustrated rapebecause of lack of conclusive evidence of penetration of the genital organ of the
offended party, was a stray decisionfor not having been reiterated in subsequent cases. As the evolving case law on
rape stands, therefore, rape in its frustrated stage is a physical impossibility, considering that the requisites of a
frustrated felony under Article 6 of the Revised Penal Codeare that: (1) the offender has performed all the acts of
execution which would produce the felony; and (2) that the felony is not produced due to causes independent of the
perpetrator’s will. Obviously, the offender attains his purpose from the moment he has carnal knowledge of his victim,
because from that moment all the essential elements of the offense have been accomplished, leaving nothing more to
be done by him.21
Nonetheless, rape admits of an attempted stage. In this connection, the character of the overt actsfor purposes of the
attempted stage has been explained in People v. Lizada: 22
An overt or external act is defined as some physical activity or deed, indicating the intention to commit a particular
crime, more than a mere planning or preparation, which if carried out to its complete termination following its natural
course, without being frustrated by external obstacles nor by the spontaneous desistance of the perpetrator, will
logically and necessarily ripen into a concrete offense. The raison d’etrefor the law requiring a direct overtact is that, in
a majority of cases, the conduct of the accused consisting merely of acts of preparation has never ceased to be
equivocal; and this is necessarily so, irrespective of his declared intent. It is that quality of being equivocal that must
be lacking before the act becomes one which may be said to be a commencement of the commission of the crime, or
an overt act or before any fragment of the crime itself has been committed, and this is so for the reason that so long
as the equivocal quality remains, no one can say with certainty what the intent of the accused is.It is necessary that
the overt act should have been the ultimate step towards the consummation of the design. It is sufficient if it was the
"first or some subsequent step in a direct movement towards the commission of the offense after the preparations are
made." The act done need not constitute the last proximate one for completion. It is necessary, however, that the
attempt must have a causal relation to the intended crime. In the words of Viada, the overt acts must have an
immediate and necessary relation to the offense. (Bold emphasis supplied)
In attempted rape, therefore, the concrete felony is rape, but the offender does not perform all the acts of execution of
having carnal knowledge. If the slightest penetration of the female genitalia consummates rape, and rape in its
attempted stage requires the commencement of the commission of the felony directly by overt actswithout the offender
performing all the acts of execution that should produce the felony, the only means by which the overt acts performed
by the accused can be shown to have a causal relation to rape as the intended crime is to make a clear showing of his
intent to lie with the female. Accepting that intent, being a mental act, is beyond the sphere of criminal law, 23 that
showing must be through his overt acts directly connected with rape. He cannot be held liable for attempted rape
withoutsuch overt acts demonstrating the intent to lie with the female. In short, the State, to establish attempted rape,
must show that his overt acts, should his criminalintent be carried to its complete termination without being thwarted
by extraneous matters, would ripen into rape,24 for, as succinctly put in People v. Dominguez, Jr.: 25 "The gauge in
determining whether the crime of attempted rape had been committed is the commencement of the act of sexual
intercourse, i.e., penetration of the penis into the vagina, before the interruption."
The petitioner climbed on top of the naked victim, and was already touching her genitalia with his hands and mashing
her breasts when she freed herself from his clutches and effectively ended his designs on her. Yet, inferring from such
circumstances thatrape, and no other,was his intended felony would be highly unwarranted. This was so, despite his
lust for and lewd designs towards her being fully manifest. Such circumstances remained equivocal, or "susceptible of
double interpretation," as Justice Recto put in People v. Lamahang, supra, such that it was not permissible to directly
infer from them the intention to cause rape as the particular injury. Verily, his felony would not exclusively be rapehad
he been allowed by her to continue, and to have sexual congress with her, for some other felony like simple seduction
(if he should employ deceit to have her yield to him) 26 could also be ultimate felony.
We clarify that the direct overt acts of the petitioner that would have produced attempted rape did not include
equivocal preparatory acts. The former would have related to his acts directly connected to rape as the intended
crime, but the latter, whether external or internal, had no connection with rape as the intended crime. Perforce, his
perpetration of the preparatory acts would not render him guilty of an attempt to commit such felony. 27 His preparatory
acts could include his putting up of the separate tents, with one being for the use of AAA and BBB, and the other for
himself and his assistant, and his allowing his wife to leave for Manila earlier that evening to buy more wares. Such
acts, being equivocal, had no direct connection to rape. As a rule, preparatory acts are not punishable under the
Revised Penal Codefor as long as they remained equivocal or of uncertain significance, because by their equivocality
no one could determine with certainty what the perpetrator’s intent really was. 28
If the acts of the petitioner did not constitute attempted rape, did they constitute acts of lasciviousness?
It is obvious that the fundamental difference between attempted rape and acts of lasciviousness is the offender’sintent
to lie with the female. In rape, intent to lie with the female is indispensable, but this element is not required in acts of
lasciviousness.29 Attempted rape is committed, therefore, when the "touching" of the vagina by the penis is coupled
with the intent to penetrate. The intent to penetrate is manifest only through the showing of the penis capable of
consummating the sexual act touching the external genitalia of the female. 30 Without such showing, only the felony of
acts of lasciviousness is committed.31
Based on Article 336 of the Revised Penal Code, the felony of acts of lasciviousness is consummated whenthe
following essential elements concur, namely: (a) the offender commits any act of lasciviousness or lewdness upon
another person of either sex; and (b) the act of lasciviousness or lewdness is committed either (i) by using force or
intimidation; or (ii) when the offended party is deprived ofreason or is otherwise unconscious; or (iii) when the offended
party is under 12 years of age.32 In that regard, lewdis defined as obscene, lustful, indecent, lecherous; it signifies that
form of immorality that has relation to moral impurity; or that which is carried on a wanton manner. 33
The information charged that the petitioner "remove[d] her panty and underwear and la[id] on top of said AAA
embracing and touching her vagina and breast." With such allegation of the information being competently and
satisfactorily proven beyond a reasonable doubt, he was guilty only of acts of lasciviousness, not attempted rape. His
embracing her and touching her vagina and breasts did not directly manifest his intent to lie with her. The lack of
evidence showing his erectile penis being in the position to penetrate her when he was on top of her deterred any
inference about his intent to lie with her. At most, his acts reflected lewdness and lust for her.
The intent to commit rape should not easily be inferred against the petitioner, even from his own declaration of it, if
any, unless he committed overt acts directly leading to rape. A good illustration of this can be seen in People v.
Bugarin,34 where the accused was charged with attempted rape through an information alleging that he, by means of
force and intimidation, "did then and there willfully, unlawfully and feloniously commence the commission of the crime
of Rape directly by overt acts, by then and there kissing the nipples and the vagina of the undersigned [complainant],
a minor, and about to lay on top of her, all against her will, however, [he] did not perform all the acts of execution which
would have produced the crime of Rape by reason of some causes other than his own spontaneous desistance, that
is, undersigned complainant push[ed] him away." The accused was held liable only for acts of lasciviousness because
the intent to commit rape "is not apparent from the actdescribed," and the intent to have sexual intercourse with her
was not inferable from the act of licking her genitalia. The Court also pointed out that the "act imputed to him cannot
be considered a preparatory act to sexual intercourse." 35
Pursuant to Article 336 of the Revised Penal Code, the petitioner, being guilty of acts of lasciviousness, is punished
with prision correccional. In the absence of modifying circumstances, prision correccional is imposed in its medium
period, which ranges from two (2) years, four (4) months and one day to four (4) years and two (2) months. Applying
the Indeterminate Sentence Law, the minimum of the penalty should come from arresto mayor, the penalty next lower
than prision correccionalwhich ranges from one (1) month to six (6) months. Accordingly, the Court fixes the
indeterminate sentence of three (3) months of arresto mayor, as the minimum, to two (2) years, four (4) months and
one day of prision correccional, as the maximum.
In acts of lasciviousness, the victim suffers moral injuries because the offender violates her chastity by his
lewdness.1âwphi1 "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 for
omission."36 Indeed, Article 2219, (3), of the Civil Code expressly recognizes the right of the victim in acts of
lasciviousness to recover moral damages.37 Towards that end, the Court, upon its appreciation of the record, decrees
that ₱30,000.00 is a reasonable award of moral damages. 38 In addition, AAA was entitled to recover civil indemnity of
₱20,000.00.39
Under Article 2211 of the Civil Code, the courts are vested with the discretion to impose interest as a part of the
damages in crimes and quasidelicts. In that regard, the moral damages of ₱20,000.00 shall earn interest of 6% per
annum reckoned from the finality of this decision until full payment. 40
WHEREFORE, the Court FINDS and PRONOUNCES petitioner NORBERTO CRUZ y BARTOLOME guilty of ACTS
OF LASCIVIOUSNESS, and, ACCORDINGLY, PENALIZES him with the indeterminate sentence of three (3) months
of arresto mayor, as the minimum, to two (2) years, four (4) months and one day of prision correccional, as the
maximum; ORDERS him to pay moral damages of ₱30,000.00 and civil indemnity of ₱20,000.00 to the complainant,
with interest of 6% per annum on such awards reckoned from the finality of this decision until full payment; and
DIRECTS him to pay the costs of suit.
SO ORDERED.

PEOPLE OF THE PHILIPPINES vs. FRANCISCO JUAN LARRAÑAGA alias "PACO;" JOSMAN AZNAR; ROWEN
ADLAWAN alias "WESLEY;" ALBERT CAÑO alias "ALLAN PAHAK;" ARIEL BALANSAG; DAVIDSON VALIENTE
RUSIA alias 'TISOY TAGALOG;" JAMES ANTHONY UY alias "WANGWANG;" and JAMES ANDREW UY alias
"MM,"
GR Nos. 138874-75, Feb 03, 2004
For most of the Cebuanos, the proceedings in these cases will always be remembered as the "trial of the century." A
reading of the voluminous records readily explains why the unraveling of the facts during the hearing before the court
below proved transfixing and horrifying and why it resulted in unusual media coverage.

These cases involve the kidnapping and illegal detention of a college beauty queen along with her comely and
courageous sister. An intriguing tale of ribaldry and gang-rape was followed by the murder of the beauty queen. She
was thrown off a cliff into a deep forested ravine where she was left to die. Her sister was subjected to heartless
indignities before she was also gang-raped. In the aftermath of the kidnapping and rape, the sister was made to
disappear. Where she is and what further crimes were inflicted upon her remain unknown and unsolved up to the
present.

Before us in an appeal from the Decision[1] dated May 5, 1999 of the Regional Trial Court, Branch 7, Cebu City in
Criminal Cases Nos. CBU 45303-45304, finding Rowen Adlawan alias "Wesley," Josman Aznar, Ariel Balansag,
Alberto Caño alias "Allan Pahak," Francisco Juan Larrañaga alias "Paco," James Andrew Uy alias "MM," and James
Anthony Uy alias "Wang Wang," appellants herein, guilty beyond reasonable doubt of the crimes of kidnapping and
serious illegal detention and sentencing each of them to suffer the penalties of "two (2)reclusiones perpetua" and to
indemnify the heirs of the victims, sisters Marijoy and Jacqueline Chiong, jointly and severally, the amount of
P200,000.00 as actual damages and P5,000,000.00 as moral and exemplary damages.

The Fourth Amended Informations[2] for kidnapping and illegal detention dated May 12, 1998 filed against appellants
and Davidson Rusia alias "Tisoy Tagalog," the discharged state witness, read as follows:

1) For Criminal Case No. CBU-45303.[3]

"xxx

"That on the 16th day of July, 1997, at about 10:00 o'clock more or less in the evening, in the City of Cebu, Philippines
and within the jurisdiction of this Honorable Court, the said accused, all private individuals, conniving, confederating
and mutually helping with one another, with deliberate intent, did then and there willfully, unlawfully and feloniously
kidnap or deprive one Marijoy Chiong, of her liberty and on the occasion thereof, and in connection, accused, with
deliberate intent, did then and there have carnal knowledge of said Marijoy against her will with the use of force and
intimidation and subsequent thereto and on the occasion thereof, accused with intent to kill, did then and there inflict
physical injuries on said Marijoy Chiong throwing her into a deep ravine and as a consequence of which, Marijoy
Chiong died.

"CONTRARY TO LAW."

2) For Criminal Case CBU-45304:[4]

"xxx

"That on the 16th day of July, 1997, at about 10:00 o'clock more or less in the evening, in the City of Cebu,
Philippines, and within the jurisdiction of this Honorable Court, the said accused, all private individuals, conniving,
confederating and mutually helping with one another, with deliberate intent, did then and there willfully, unlawfully and
feloniously kidnap or deprive one Jacqueline Chiong of her liberty, thereby detaining her until the present.

"CONTRARY TO LAW."
On separate arraignments, state witness Davison Rusia and appellants Rowen Adlawan, Josman Aznar, Ariel
Balansag, Alberto Caño, James Andrew and James Anthony Uy pleaded not guilty. [5] Appellant Francisco Juan
Larrañaga refused to plead, hence, the trial court entered for him the plea of "not guilty." [6] Thereafter, trial on the
merits ensued.

In the main, the prosecution evidence centered on the testimony of Rusia. [7] Twenty-one witnesses[8] corroborated his
testimony on major points. For the defense, appellants James Anthony Uy and Alberto Caño took the witness stand.
Appellant Francisco Juan Larrañaga was supposed to testify on his defense of alibi but the prosecution and the
defense, through a stipulation approved by the trial court, dispensed with his testimony. Nineteen witnesses testified
for the appellants, corroborating their respective defenses of alibi.

The version of the prosecution is narrated as follows:

On the night of July 16, 1997, sisters Marijoy and Jacqueline Chiong, who lived in Cebu City, failed to come home on
the expected time. It was raining hard and Mrs. Thelma Chiong thought her daughters were simply having difficulty
getting a ride. Thus, she instructed her sons, Bruce and Dennis, to fetch their sisters. They returned home without
Marijoy and Jacqueline. Mrs. Chiong was not able to sleep that night. Immediately, at 5:00 o'clock in the morning, her
entire family started the search for her daughters, but there was no trace of them. Thus, the family sought the
assistance of the police who continued the search. But still, they could not find Marijoy and Jacqueline. [9]

Meanwhile, in the morning of July 18, 1997, a certain Rudy Lasaga reported to the police that a young woman was
found dead at the foot of a cliff in Tan-awan, Carcar, Cebu. [10] Officer-in-Charge Arturo Unabia and three other
policemen proceeded to Tan-awan and there, they found a dead woman lying on the ground. Attached to her left wrist
was a handcuff.[11] Her pants were torn, her orange t-shirt was raised up to her breast and her bra was pulled down.
Her face and neck were covered with masking tape.[12]

On July 19, 1996, upon hearing the news about the dead woman, Mrs. Chiong's son Dennis and other relatives
proceeded to the Tupaz Funeral Parlor at Carcar, Cebu to see the body. It was Marijoy dressed in the same orange
shirt and maong pants she wore when she left home on July 16, 1997. Upon learning of the tragic reality, Mrs. Chiong
became frantic and hysterical. She could not accept that her daughter would meet such a gruesome fate. [13]

On May 8, 1998, or after almost ten months, the mystery that engulfed the disappearance of Marijoy and Jacqueline
was resolved. Rusia, bothered by his conscience and recurrent nightmares, [14] admitted before the police having
participated in the abduction of the sisters.[15] He agreed to re-enact the commission of the crimes.[16]

On August 12, 1998, Rusia testified before the trial court how the crimes were committed and identified all the
appellants as the perpetrators. He declared that his conduit to Francisco Juan Larrañaga was Rowen Adlawan whom
he met together with brothers James Anthony and James Andrew Uy five months before the commission of the crimes
charged.[17] He has known Josman Aznar since 1991. He met Alberto Caño and Ariel Balansag only in the evening of
July 16, 1997.

Or, July 15, 1997, while Rusia was loafing around at the Cebu Plaza Hotel, Cebu City, Rowen approached him and
arranged that they meet the following day at around 2:00 o'clock in the afternoon. [18] When they saw each other the
next day, Rowen told him to stay put at the Ayala Mall because they would have a "big happening" in the evening. All
the while, he thought that Rowen's "big happening" meant group partying or scrounging. He thus lingered at the
Ayala Mall until the appointed time came.[19]

At 10:30 in the evening, Rowen returned with Josman. They met Rusia at the back exit of the Ayala Mall and
told him to ride with them in a white car. Rusia noticed that a red car was following them. Upon reaching
Archbishop Reyes Avenue, same city, he saw two women standing at the waiting shed. [20] Rusia did not know yet that
their names were Marijoy and Jacqueline.

Josman stopped the white car in front of the waiting shed and he and Rowen approached and invited Marijoy and
Jacqueline to join them.[21] But the sisters declined. Irked by the rejection, Rowen grabbed Marijoy while Josman held
Jacqueline and forced both girls to ride in the car.[22] Marijoy was the first one to get inside, followed by Rowen.
Meanwhile, Josman pushed Jacqueline inside and immediately drove the white car. Rusia sat on the front seat beside
Josman.

Fourteen (14) meters from the waiting shed, Jacqueline managed to get out of the car. Josman chased her and
brought her back into the car. Not taking anymore chances, Rowen elbowed Jacqueline on the chest and punched
Marijoy on the stomach, causing both girls to faint.[23] Rowen asked Rusia for the packaging tape under the latter's
seat and placed it on the girls' mouths. Rowen also handcuffed them jointly. The white and red cars then proceeded to
Fuente Osmeña, Cebu City.

At Fuente Osmeña, Josman parked the car near a Mercury Drug Store and urged Rusia to inquire if a van that was
parked nearby was for hire. A man who was around replied "no" so the group immediately left. The two cars stopped
again near Park Place Hotel where Rusia negotiated to hire a van. But no van was available. Thus, the cars sped to a
house in Guadalupe, Cebu City known as the safehouse of the "Jozman Aznar Group" Thereupon, Larrañaga, James
Anthony and James Andrew got out of the red car.

Larrañaga, James Anthony and Rowen brought Marijoy to one of the rooms, while Rusia and Josman led Jacqueline
to another room. Josman then told Rusia to step out so Rusia stayed at the living room with James Andrew. They
remained in the house for fifteen (15) to twenty (20) minutes. At that time, Rusia could hear Larrañaga, James
Anthony, and Rowen giggling inside the room.

Thereafter, the group brought Marijoy and Jacqueline back to the white car. Then the two cars headed to the South
Bus Terminal where they were able to hire a white van driven by Alberto. Ariel was the conductor. James Andrew
drove the white car, while the rest of the group boarded the van. They traveled towards south of Cebu City, leaving the
red car at the South Bus Terminal.
Inside the van, Marijoy and Jacqueline were slowly gaining strength. James Anthony taped their mouths anew and
Rowen handcuffed them-together. Along the way, the van and the white car stopped by a barbeque store. Rowen got
off the van and bought barbeque and Tanduay rhum. They proceeded to Tan-awan. [24] Then they parked their vehicles
near a precipice[25] where they drank and had a pot session. Later, they pulled Jacqueline out of the van and told her to
dance as they encircled her. She was pushed from one end of the circle to the other, ripping her clothes in the
process. Meanwhile, Josman told Larrañaga to start raping Marijoy who was left inside the van. The latter did as told
and after fifteen minutes emerged from the van saying, "who wants next?" Rowen went in, followed by James
Anthony, Alberto, the driver, and Ariel, the conductor. Each spent a few minutes inside the van and afterwards came
out smiling.[26]

Then they carried Marijoy out of the van, after which Josman brought Jacqueline inside the vehicle. Josman came out
from the van after ten minutes, saying, "whoever wants next go ahead and hurry up." Rusia went inside the van and
raped Jacqueline, followed by James Andrew. At this instance, Marijoy was to breathe her last for upon Josman's
instruction, Rowen and Ariel led her to the cliff and mercilessly pushed her into the ravine [27] which was almost 150
meters deep.[28]

As for Jacqueline, she was pulled out of the van and thrown to the ground. Able to gather a bit of strength, she tried to
run towards the road. The group boarded the van, followed her and made fun of her by screaming, "run some more"
There was a tricycle passing by. The group brought Jacqueline inside the van. Rowen beat her until she passed out.
The group then headed back to Cebu City with James Andrew driving the white car. Rusia got off from the van
somewhere near the Ayala Center.[29]

There were other people who saw snippets of what Rusia had witnessed. Sheila Singson, [30] Analie Konahap[31] and
Williard Redobles[32] testified that Marijoy and Jacqueline were talking to Larrañaga and Josman before they were
abducted. Roland Dacillo[33]saw Jacqueline alighting and running away from a white car and that Josman went after
her and grabbed her back to the car. Alfredo Duarte [34] testified that he was at the barbeque stand when Rowen bought
barbeque; that Rowen asked where he could buy Tanduay; that he saw a white van and he heard therefrom voices of
a male and female who seemed to be quarreling; that he also heard a cry of a woman which he could not understand
because "it was as if the voice was being controlled;" and that after Rowen got his order, he boarded the white van
which he recognized to be previously driven by Alberto Caño. Meanwhile, Mario Miñoza, [35] a tricycle driver plying the
route of Carcar-Mantalongon, saw Jacqueline running towards Mantalongon. Her blouse was torn and her hair was
disheveled. Trailing her was a white van where a very loud rock music could be heard. Manuel Camingao [36] recounted
that on July 17, 1997, at about 5:00 o'clock in the morning, he saw a white van near a cliff at Tan-awan. Thinking that
the passenger of the white van was throwing garbage at the cliff, he wrote its plate number (GGC-491) on the side of
his tricycle.[37]

Still, there were other witnesses[38] presented by the prosecution who gave details which, when pieced together,
corroborated well Rusia's testimony on what transpired at the Ayala Center all the way to Carcar.

Against the foregoing facts and circumstances, the appellants raised the defense of alibi, thus:

Larrañaga, through his witnesses, sought to establish that on July 16, 1997, he was in Quezon City taking his mid-
term examinations at the Center for Culinary Arts. In the evening of that day until 3:00 o'clock in the morning of July
17, 1997, he was with his friends at the R & R Bar and Restaurant, same city. Fifteen witnesses testified that they
were either with Larrañaga or saw him in Quezon City at the time the crimes were committed. His friends, Lourdes
Montalvan,[39] Charmaine Flores,[40] Richard Antonio,[41] Jheanessa Fonacier,[42]Maharlika Shulze,[43] Sebastian Seno,
[44]
Francisco Jarque,[45] Raymond Garcia,[46] Cristina Del Gallego,[47] Mona Lisa Del Gallego,[48] Paolo Celso[49] and
Paolo Manguerra[50] testified that they were with him at the R & R Bar on the night of July 16, 1997. The celebration
was a "despedida" for him as he was leaving the next day for Cebu and a "bienvenida" for another friend. Larrañaga's
classmate Carmina Esguerra[51] testified that he was in school on July 16, 1997 taking his mid-term examinations. His
teacher Rowena Bautista,[52] on the other hand, testified that he attended her lecture in Applied Mathematics. Also,
some of his neighbors at the Loyola Heights Condominium, Quezon City, including the security guard, Salvador Boton,
testified that he was in his condo unit in the evening of July 16, 1997. Representatives of the four airline companies
plying the route of Manila-Cebu-Manila presented proofs showing that the name Francisco Juan Larrañaga does not
appear in the list of pre-flight and post-flight manifests from July 15, 1997 to about noontime of July 17, 1997.

Meanwhile, James Anthony Uy testified that on July 16, 1997, he and his brother James Andrew were at home in
Cebu City because it was their father's 50th birthday and they were celebrating the occasion with a small party which
ended at 11:30 in the evening.[53] He only left his house the next day, July 17, 1997 at about 7:00 o'clock in the
morning to go to school.[54] The boys' mother, Marlyn Uy, corroborated his testimony and declared that when she woke
up at 2:00 o'clock in the morning to check on her sons, she found them sleeping in their bedrooms. They went to
school the next day at about 7:00 o'clock in the morning. [55]

Clotilde Soterol testified for Alberto and Ariel. She narrated that on July 16, 1997, at around 7:00 o'clock in the
evening, Alberto brought the white Toyota van with Plate No. GGC-491 to her shop to have its aircon repaired. Alberto
was accompanied by his wife Gina Caño, co-appellant Ariel, and spouses Catalina and Simplicio Paghinayan, owners
of the vehicle. Since her (Clotildes') husband was not yet around, Alberto just left the vehicle and promised to return
the next morning. Her husband arrived at 8:30 in the evening and started to repair the aircon at 9:00 o'clock of the
same evening. He finished the work at 10:00 o'clock the following morning. At 11:00 o'clock, Alberto and his wife Gina,
Ariel and Catalina returned to the shop to retrieve the vehicle. [56] Alberto,[57] Gina[58] and Catalina[59] corroborated
Clotilde's testimony.

To lend support to Josman's alibi, Michael Dizon recounted, that on July 16, 1997, at about 8:00 o'clock in the
evening, he and several friends were at Josman's house in Cebu. They ate their dinner there and afterwards drank
"Blue Label." They stayed at Josman's house until 11:00 o'clock in the evening. Thereafter, they proceeded to BAI
Disco where they drank beer and socialized with old friends. They stayed there until 1:30 in the morning of July 17,
1997. Thereafter, they transferred to DTM Bar. They went home together at about 3:00 o'clock in the morning. Their
friend, Jonas Dy Pico, dropped Josman at his house.[60]

Concerning state witness Rusia, on August 7, 1998, when the prosecution moved that he be discharged as an
accused for the purpose of utilizing him as a state witness, [61] Larrañaga and brothers James Anthony and James
Andrew opposed the motion on the ground that he does not qualify as a state witness under Section 9, Rule 119 of the
Revised Rules of Court on Criminal Procedure.[62] On August 12, 1998, the trial court allowed the prosecution to
present Rusia as its witness but deferred resolving its motion to discharge until it has completely presented its
evidence.[63] On the same date, the prosecution finished conducting Rusia's direct examination. [64] The defense
lawyers cross-examined him on August 13, 17, and 20, 1998. [65] On the last date, Judge Ocampo provisionally
terminated the cross-examination due to the report that there was an attempt to bribe him and because of his
deteriorating health.[66]

Resenting the trial court's termination of Rusia's cross-examination, the defense lawyers moved for the inhibition of
Judge Ocampo.[67]When he informed the defense lawyers that he would not inhibit himself since he found no "just and
valid reasons" therefor, the defense lawyers withdrew en masse as counsel for the appellants declaring that they
would no longer attend the trial. Judge Ocampo held them-guilty-of direct contempt of court. Thus, defense lawyers
Raymundo Armovit, Edgar Gica, Fidel Gonzales, Ramon Teleron, Alfonso de la Cerna and Lorenzo Paylado were
ordered jailed.

In the Order dated August 25, 1998, the trial court denied the motion for inhibition of the defense lawyers and ordered
them to continue representing their respective clients so that the cases may undergo the mandatory continuous trial.
The trial court likewise denied their motion to withdraw as appellants' counsel because of their failure to secure a prior
written consent from their clients. On August 26, 1998, appellants filed their written consent to the withdrawal of their
counsel.

Thereafter, Larrañaga, Josman and brothers James Anthony and James Andrew moved for the postponement of the
hearing for several weeks to enable them to hire the services of new counsel. [68] On August 31, 1998, the trial court
denied appellants' motions on the ground that it could no longer delay the hearing of the cases. On September 2,
1998, the trial court directed the Public Attorney's Office (PAO) to act as counsel de oficio for all the appellants.[69]

Trial resumed on September 3, 1998 with a team of PAO lawyers assisting appellants. Larrañaga objected to the
continuation of the direct examination of the prosecution witnesses as he was not represented by his counsel de
parte. The trial court overruled his objection. The prosecution witnesses testified continuously from September 3,
1998 to September 24, 1998. Meanwhile, the cross-examination of said witnesses was deferred until the appellants
were able to secure counsel of their choice. On the same date, September 24, 1998, Atty. Eric C. Villarmia entered his
appearance as counsel for Larrañaga, while Atty. Eric S. Carin appeared as counsel for brothers James Anthony and
James Andrew.

Thereafter, or on October 1, 1998, the defense lawyers started cross-examining Rusia. The cross-examination
continued on October 5, 6, 12 and 13, 1998.

Eventually, acting on the prosecution's motion to discharge Rusia to be a state witness, the trial court required the
"opposing parties to submit their respective memoranda. On November 12, 1998, the trial court issued an omnibus
order granting the prosecution's motion discharging Rusia as an accused and according him the status of a
state witness.

On May 5, 1999, the trial court rendered the assailed Decision, the dispositive portion of which reads:

"WHEREFORE, all the accused Francisco Juan Larrañaga, Josman Aznar, James Andrew Uy, James Anthony Uy,
Rowen Adlawan, Alberto Caño, and Ariel Balansag are hereby found Guilty beyond reasonable doubt of two crimes of
Kidnapping and Serious Illegal Detention and are hereby sentenced to imprisonment of Two (2) Reclusiones
Perpetua each which penalties, however, may be served by them simultaneously (Article 70, Revised Penal Code).
Further, said accused are hereby ordered to indemnify the heirs of the two (2) victims in these cases, jointly and
severally, in the amount of P200,000.00 in actual damages and P5,000,000.00 by way of moral and exemplary
damages.
"SO ORDERED."
Hence, the instant separate appeals. Appellants Rowen, Alberto and Ariel ascribe to the trial court the following errors:

"I. THE COURT A QUO ERRED IN GIVING CREDENCE TO THE UNTRUSTWORTHY, INCONSISTENT,
CONTRADICTORY AND INCREDULOUS TESTIMONY OF (DAVIDSON) VALIENTE RUSIA.
"II. THE COURT A QUO ERRED IN ADMITTING THE TESTIMONY OF THE PROSECUTION WITNESSES,
NOTWITHSTANDING THE FACT THAT THE DEFENDANTS WERE NOT DULY REPRESENTED BY COUNSELS OF
THEIR OWN CHOICE DURING THE TIME THESE WITNESSES WERE PRESENTED.

"III. THE COURT A QUO ERRED IN FINDING THAT THERE WAS CONSPIRACY IN THE CASE AT BAR.

"IV. THE COURT A QUO ERRED IN GIVING CREDENCE TO THE TESTIMONIES OF THE PROSECUTION
WITNESSES.

"V. THE COURT A QUO ERRED IN DISPLAYING MANIFEST ANIMOSITY TOWARDS THE DEFENSE'S
WITNESSES WHICH CLEARLY SHOWED ITS PREJUDICE AND BIAS IN DECIDING THE CASE.

"VI. THE COURT A QUO ERRED IN NOT ALLOWING SOME DEFENSE WITNESSES TO TESTIFY.

"VII.THE COURT A QUO ERRED IN CONSIDERING ROWEN ADLAWAN TO HAVE WAIVED PRESENTATION OF
EVIDENCE IN HIS BEHALF."
For his part, Josman raises the following assignments of error:

"I. THE TRIAL COURT GRAVELY ERRED IN DISCHARGING DAVID VALIENTE RUSIA AS STATE WITNESS IN
GROSS AND BLATANT DISREGARD OF THE RULES ON DISCHARGE OF STATE WITNESS.

"II. THE TRIAL COURT GRAVELY ERRED IN GIVING CREDENCE TO RUSIA'S TESTIMONY DESPITE CLEAR
SHOWING THAT HIS CRIMINAL RECORD AS AN EX-CONVlCT, DRUG ADDICT AND GANGSTER AND HIS
SUICIDAL TENDENCIES SERIOUSLY IMPAIR HIS CREDIBILITY AND INNATE CAPACITY FOR TRUTH, HONESTY
AND INTEGRITY.

"III. THE TRIAL COURT GRAVELY ERRED IN LENDING CREDENCE TO RUSIA'S TESTIMONY REPLETE AS IT
WAS WITH INCONSISTENCIES, FALSEHOODS AND LIES.

"IV.THE TRIAL COURT GRAVELY ERRED IN LENDING CREDENCE TO THE CORROBORATIVE TESTIMONIES
OF THE PROSECUTION WITNESSES.

"V. THE TRIAL COURT GRAVELY ERRED IN DENYING APPELLANT AZNAR HIS RIGHT TO DUE PROCESS AND
IN DEPRIVING HIM OF THE CONSTITUTIONAL RIGHTS OF AN ACCUSED.

"VI. THE TRIAL JUDGE VIOLATED AZNAR'S RIGHT TO DUE PROCESS WHEN THE TRIAL JUDGE REFUSED TO
INHIBIT HIMSELF AND PROCEEDED WITH THE TRIAL DESPITE GLARING BADGES OF HIS PARTIALITY AND
BIAS FOR THE PROSECUTION.

"VII. THE TRIAL COURT GRAVELY ERRED IN DISCREDITING AND DISREGARDING THE DEFENSE OF
APPELLANT AZNAR.

"VIII. THE TRIAL COURT GRAVELY ERRED IN CONVICTING APPELLANT AZNAR ON THE BASIS OF
PROSECUTING EVIDENCE MAINLY ANCHORED ON RUSIA'S TESTIMONY WHICH FAILED TO EVINCE PROOF
BEYOND REASONABLE DOUBT OF APPELLANT AZNAR'S CRIMINAL LIABILITY."
In his 145-page appellant's brief, Larrañaga alleges that the trial court committed the following errors:

"6.1 THE TRIAL COURT ERRED IN IGNORING AND VIOLATING DUE PROCESS RIGHTS OF THE ACCUSED.

6.2 THE TRIAL COURT ERRED IN ALLOWING THE DISCHARGE OF ACCUSED DAVIDSON RUSIA.

6.3 THE TRIAL COURT ERRED IN GIVING PARTIAL CREDIBILITY TO THE TESTIMONY OF DAVIDSON RUSIA.

6.4 THE TRIAL COURT ERRED IN CONSIDERING THE TESTIMONIES OF THE OTHER WITNESSES.

6.5 THE TRIAL COURT ERRED IN GIVING CREDENCE TO THE TESTIMONIES OF OTHER WITNESSES.
6.6 THE TRIAL COURT ERRED IN FINDING THAT THE PROSECUTION HAS OVERCOME THE
CONSTITUTIONAL PRESUMPTION OF INNOCENCE.

6.7 THE TRIAL COURT ERRED IN DISREGARDING AND REJECTING, EVEN AT DIRECT TESTIMONY STAGE,
THE ACCUSED-APPELLANT'S DEFENSE OF ALIBI."
For their part, brothers James Anthony and James Andrew, in their 147-page appellants' brief, bid for an acquittal on
the following grounds:

"A) THE TRIAL COURT BELOW GRIEVOUSLY FAILED TO OBSERVE, AND THUS DENIED ACCUSED JAMES
ANTHONY S. UY AND JAMES ANDREW S. UY THEIR CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW, TO
BE PRESUMED INNOCENT, TO HAVE COUNSEL OF THEIR OWN CHOICE, TO HAVE AN IMPARTIAL JUDGE, TO
MEET WITNESSES FACE TO FACE, AND TO PRODUCE EVIDENCE ON THEIR BEHALF;

B) THE PROSECUTION EVIDENCE HAS ABSOLUTELY NOTHING TO SUPPORT THE CONVICTION OF


ACCUSED JAMES ANTHONY S. UY AND JAMES ANDREW S. UY IN THESE CASES THUS THE TRIAL COURT
BELOW SERIOUSLY AND GRIEVOUSLY ERRED WHEN IT RENDERED THE 5 MAY 1999 JUDGMENT OF
CONVICTION AGAINST THEM."[70]
Appellants' assignments of error converge on four points, thus: (1) violation of their right to due process; (2) the
improper discharge of Rusia as an accused to be a state witness; (3) the insufficiency of the evidence of the
prosecution; and (4) the trial court's disregard and rejection of the evidence for the defense.

The appeal is bereft of merit.


I. Violation of Appellants' Right to Due Process

Due process of law is the primary and indispensable foundation of individual freedoms; it is the basic and essential
term in the social compact which defines the rights of the individual and delimits the powers which the State may
exercise.[71] In evaluating a due process claim, the court must determine whether life, liberty or property interest exists,
and if so, what procedures are constitutionally required to protect that right. [72] Otherwise stated, the due process
clause calls for two separate inquiries in evaluating an alleged violation: did the plaintiff lose something that fits into
one of the three protected categories of life, liberty, or property?; and, if so, did the plaintiff receive the minimum
measure of procedural protection warranted under the circumstances? [73]

For our determination, therefore, is whether the minimum requirements of due process were accorded to appellants
during the trial of these cases.

Section 14, Article III of our Constitution catalogues the essentials of due process in a criminal prosecution, thus:

"SEC. 14. (1) No person shall be held to answer for a criminal offense without due process of law.

(2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy
the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against
him, to have a speedy,impartial, and public trial, to meet the witnesses face to face, and to have compulsory
process to secure the attendance of witnesses and the production of evidence in his behalf. However, after
arraignment, trial may proceed notwithstanding the absence of the accused provided that he has been notified and his
failure to appear is unjustifiable."
Rule 115 of the Revised Rules of Criminal Procedure casts the foregoing provision in a more detailed manner, thus:

"SECTION 1. Rights of accused at the trial. In all criminal prosecutions, the accused shall be entitled to the following
rights:

(a) To be presumed innocent until the contrary is proved beyond reasonable doubt.

(b) To be informed of the nature and cause of the accusation against him.

(c) To be present and defend in person and by counsel at every stage of the proceedings, from arraignment
to promulgation of the judgment. The accused may, however, waive his presence at the trial pursuant to the
stipulations set forth in his bail, unless his presence is specifically ordered by the court for purposes of identification.
The absence of the accused without justifiable cause at the trial of which he had notice shall be considered a waiver of
his right to be present thereat. When an accused under custody escapes, he shall be deemed to have waived his right
to be present on all subsequent trial dates until custody over him is regained. Upon motion, the accused may be
allowed to defend himself in person when it sufficiently appears to the court that he can properly protect his rights
without the assistance of counsel.

(d) To testify as a witness in his own behalf but subject to cross-examination on matters covered by direct
examination. His silence shall not in any manner prejudice him.

(e) To be exempt from being compelled to be a witness against himself.

(f) To confront and cross-examine the witnesses against him at the trial. Either party may utilize as part of
its evidence the testimony of a witness who is deceased, out of or cannot with due diligence be found in the
Philippines, unavailable, or otherwise unable to testify, given in another case or proceeding, judicial or
administrative, involving the same parties and subject matter, the adverse party having the opportunity to
cross-examine him.

(g) To have compulsory process issued to secure the attendance of witnesses and production of other evidence in
his behalf.

(h) To have speedy, impartial and public trial.

(i) To appeal in all cases allowed and in the manner prescribed by law."
Of the foregoing rights, what appellants obviously claim as having been trampled upon by the trial court are
their: (a) right to be assisted by counsel at every stage of the proceedings; (b) right to confront and cross-examine the
prosecution witnesses; (c) right to produce evidence on their behalf; and (d) right to an impartial trial.

A. Right to Counsel

Anent the right to counsel, appellants fault the trial court: first, for appointing counsel de oficio despite their insistence
to be assisted by counsel of their own choice; and second, for refusing to suspend trial until they shall have secured
the services of new counsel.

Appellants cannot feign denial of their right to counsel. We have held that there is no denial of the right to counsel
where a counsel de oficio was appointed during the absence of the accused's counsel de parte, pursuant to the
court's desire to finish the case as early as practicable under the continuous trial system. [74]

Indisputably, it was the strategic machinations of appellants and their counsel de parte which prompted the trial court
to appoint counsel de oficio. The unceremonious withdrawal of appellants' counsel de parte during the proceedings of
August 24, 1998, as well as their stubborn refusal to return to the court for trial undermines the continuity of the
proceedings. Considering that the case had already been dragging on a lethargic course, it behooved the trial court to
prevent any further dilatory maneuvers on the part of the defense counsel. Accordingly, it was proper for the trial court
to appoint counsel de oficio to represent appellants during the remaining phases of the proceedings.

At any rate, the appointment of counsel de oficio under such circumstances is not proscribed by the Constitution. An
examination of its provisions concerning the right to counsel shows that the "preference in the choice of counsel"
pertains more aptly and specifically to a person under investigation [75] rather than an accused in a criminal prosecution.
[76]
And even if we are to extend the "application of the concept of "preference in the choice of counsel" to an accused
in a criminal prosecution, such preferential discretion is not absolute as would enable him to choose a particular
counsel to the exclusion of others equally capable. We stated the reason for this ruling in an earlier case:

"Withal, the word 'preferably' under Section 12 (1), Article 3 of the 1987 Constitution does not convey the message
that the choice of a lawyer by a person under investigation is exclusive as to preclude other equally competent and
independent attorneys from handling his defense. If the rule were otherwise, then, the tempo of a custodial
investigation, will be solely in the hands of the accused who can impede, nay, obstruct the progress of the
interrogation by simply selecting a lawyer, who for one reason or another, is not available to protect his
interest. This absurd scenario could not have been contemplated by the framers of the charter."[77]
In the same breath, the choice of counsel by the accused in a criminal prosecution is not a plenary one. If the chosen
counsel deliberately makes himself scarce, the court is not precluded from appointing a de oficio counsel
whom it considers competent and independent to enable the trial to proceed until the counsel of choice
enters his appearance. Otherwise, the pace of a criminal prosecution will be entirely dictated by the accused to the
detriment of the eventual resolution of the case.[78]

Neither is there a violation of appellants' right to counsel just because the trial court did not grant their request for
suspension of the hearing pending their search for new counsel. An application for a continuance in order to secure
the services of counsel is ordinarily addressed to the discretion of the court, and the denial thereof is not ordinarily an
infringement of the accused's right to counsel.[79] The right of the accused to select his own counsel must be
exercised in a reasonable time and in a reasonable manner. [80]

In the present case, appellants requested either one (1) month or three (3) weeks to look for new counsel. Such
periods are unreasonable. Appellants could have hired new lawyers at a shorter time had they wanted to. They should
have been diligent in procuring new counsel.[81] Constitutional guaranty of right to representation by counsel
does not mean that accused may avoid trial by neglecting or refusing to secure assistance of counsel and by
refusing to participate in his trial.[82] It has been held that where the accused declined the court's offer to appoint
counsel and elected to defend himself, the denial of his motion made toward the end of the trial for a continuance so
that he could obtain counsel of his own choice was not an infringement of his constitutional rights. [83] While the
accused has the right to discharge or change his counsel at any time, this right is to some extent subject to
supervision by the trial court, particularly after the trial has commenced. The court may deny accused's application
to discharge his counsel where it appears that such application is not made in good faith but is made for
purposes of delay.[84]

Significantly, parallel to the hearing at the trial court were also petitions and motions involving several incidents in
these cases filed with the Court of Appeals and this Court. The appellants, particularly Larrañaga, were represented
there by the same counsel de parte.[85]Certainly, it is wrong for these lawyers to abandon appellants in the proceeding
before the trial court and unceasingly represent them in the appellate courts. Indeed, in doing so, they made a
mockery of judicial process and certainly delayed the hearing before the court below. In Lacambra vs. Ramos, [86] we
ruled:

"The Court cannot help but note the series of legal maneuvers resorted to and repeated importunings of the accused
or his counsel, which resulted in the protracted trial of the case, thus making a mockery of the judicial process, not to
mention the injustice caused by the delay to the victim's family."
Furthermore, appellants' counsel de parte ought to know that until their withdrawal shall have been approved by the
appellants, they still remain the counsel of record and as such, they must do what is expected of them, that is, to
protect their interests.[87] They cannot walk out from a case simply because they do not agree with the ruling of the
judge. Being officers of the court whose duty is to assist in administering justice, they may not withdraw or be
permitted to withdraw as counsel in a case if such withdrawal will work injustice to a client or frustrate the ends of
justice.[88]

B. Right to Confront and Cross-


Examine the Prosecution
Witnesses.

Appellants also fault the trial court for depriving them of the right to cross-examine Rusia and the other prosecution
witnesses. Appellants' assertion has no factual and legal anchorage. For one, it is not true that they were not given
had a fair share of time in
sufficient opportunity to cross-examine Rusia. All of appellants' counsel de parte
grilling Rusia concerning his background to the kidnapping of Marijoy and
Jacqueline. The records reveal the following dates of his cross-examination:

Lawyers Dates of Cross-examination

1. Armovit (for Larrañaga) August 13 and 17, 1998


2. Gonzales (for Larrañaga) August 20, 1998
3. Gica (for Josman) August 20, 1998
4. Paylado (for James Anthony and James Andrew) August 20, 1998
5. De la Cerna (for Rowen, Alberto and Ariel) August 20, 1998
October 1, 1998
6. Villarmia (for Larrañaga)

7. Andales (for Josman) October 5 and 6, 1998


8. Carin (for James Andrew and James Anthony) October, 5, 1998
9 Debalucos (for Rowen, Caño and Balansag) October 12, 1998
10. De Jesus (for Rowen, Alberto and Ariel) October 12, 1998
11. Ypil (for Rowen, Alberto and Ariel) October 12, 1998[89]
That the trial court imposed limitation on the length of time counsel for appellants may cross-examine Rusia cannot be
labeled as a violation of the latter's constitutional right. Considering that appellants had several lawyers, it was just
imperative for the trial court to impose a time limit on their cross-examination so as not to waste its time on repetitive
and prolix questioning.

Indeed, it is the right and duty of the trial court to control the cross-examination of witnesses, both for the purpose of
conserving its time and protecting the witnesses from prolonged and needless examination. [90] Where several accused
are being tried jointly for the same offense, the order in which counsel for the several defendants shall cross-examine
the state's witnesses may be regulated by the court[91]and one of them may even be denied the right to cross-examine
separately where he had arranged with the others that counsel of one of them should cross-examine for all. [92] In
People vs. Gorospe,[93] we ruled:

"While cross-examination is a right available to the adverse party, it is not absolute in the sense that a cross-examiner
could determine for himself the length and scope of his cross-examination of a witness. The court has always the
discretion to limit the cross-examination and to consider it terminated if it would serve the ends of justice."
The transcript of stenographic notes covering Rusia's cross-examination shows that appellants' counsel had ample
chance to test his credibility.

Records show that the failure of the PAO lawyers to cross-examine some of the prosecution witnesses was due to
appellants' obstinate refusal. In its Order[94] dated September 8, 1998, the trial court deferred the cross-examination in
view of appellants' insistence that their new counsel de parte will conduct the cross-examination. So as not to unduly
delay the hearing, the trial court warned the appellants that if by September 24, 1998, they are not yet represented by
their new counsel de parte, then it will order their counsel de oficio to conduct the cross-examination. Lamentably, on
September 24, 1998, appellants' counsel de parte entered their appearances merely to seek another postponement of
the trial. Thus, in exasperation, Judge Ocampo remarked:

"Every time a defense counsel decides to withdraw, must an accused be granted one (1) month suspension of trial to
look for such new counsel to study the records and transcripts? Shall the pace of the trial of these cases be thus left to
the will or dictation of the accused - whose defense counsels would just suddenly withdraw and cause such long
suspensions of the trial while accused allegedly shop around for new counsels and upon hiring new counsels ask for
another one month trial suspension for their new lawyers to study the records? While all the time such defense
counsels (who allegedly have already withdrawn) openly continue to 'advise' their accused-clients and even file
'Manifestations' before this Court and Petitions for Certiorari, Injunction and Inhibition on behalf of accused before the
Court of Appeals and the Supreme Court?

"What inanity is this that the accused and their lawyers are foisting upon this Court? In open defiance of the provisions
of SC A.O. No. 104-96 that these heinous crimes cases shall undergo 'mandatory continuous trial and shall be
terminated within sixty (60) days'?"
Still, in its Order dated October 8, 1998, the trial court gave appellants' new counsel de parte a period until October
12, 1998 to manifest whether they are refusing to cross-examine the prosecution witnesses concerned; if so, then the
court shall consider them to have waived their right to cross-examine those witnesses. During the hearing on October
12, 1998, Larrañaga's new counsel de parte, Atty. Villarmia, manifested that he would not cross-examine the
prosecution witnesses who testified on direct examination when Larrañaga was assisted by counsel de officio only.
The next day, the counsel de parte of Josman, and brothers James Anthony and James Andrew adopted Atty.
Villarmia's manifestation. Counsel for Rowen, Alberto and Ariel likewise refused to cross-examine the same witnesses.
Thus, in its Order dated October 14, 1998, the trial court deemed appellants to have waived their right to cross-
examine the prosecution witnesses.

It appears therefore, that if some of the prosecution witnesses were not subjected to cross-examination, it was not
because appellants were not given the opportunity to do so. The fact remains that their new counsel de parte refused
to cross-examine them. Thus, appellants waived their right "to confront and cross examine the witnesses" against
them.

C. Right to Impartial
Trial

Appellants imputes bias and partiality to Judge Ocampo when he asked questions and made comments when the
defense witnesses were testifying.

Canon 14 of the Canons of Judicial Ethics states that a judge may properly intervene during trial to promote
expeditious proceeding, prevent unnecessary waste of time and dilly-dallying of counsel or clear up obscurities. The
test is whether the intervention of the judge tends to prevent the proper presentation of a cause or the
ascertainment of the truth in the matter where he interposes his questions or comments.

Records show that the intervention by way of comment of Judge Ocampo during the hearing was not only appropriate
but was necessary. One good illustration is his explanation on alibi. Seeing that the appellants' counsel were about to
present additional witnesses whose testimonies would not establish the impossibility of appellants' presence in the
scene of the crime, Judge Ocampo intervened and reminded appellants' counsel of the requisites of alibi, thus:

"Well, I'm not saying that there is positive identification. I'm only saying that in proving your alibi you must stick by
what the Supreme Court said that it was impossible if they are telling the truth, di ba? Now with these other witnesses
na hindi naman ganoon to that effect it does not prove that it was impossible, e, what is the relevance on that? What is
the materiality? lyon ang point ko. We are wasting our time with that testimony. Ilang witnesses and epe-present to
that effect. Wala rin namang epekto. It will not prove that it was not impossible for him to go to Cebu at 10:30 P.M., of
July 16, e, papano yan? We are being criticized by the public already for taking so long a time of the trial of these
cases which is supposed to be finished within 60 days. Now from August, September, October, November, December
and January, magse-six months na, wala pa and you want to present so many immaterial witnesses."
Surely, we cannot fault Judge Ocampo for exhaustively reminding appellants' counsel of the parameters of alibi to
ensure that there will be an orderly and expeditious presentation of defense witnesses and that there will be no time
wasted by dispensing with the testimonies of witnesses which are not relevant. Remarks which merely manifest a
desire to confine the proceedings to the real point in issue and to expedite the trial do not constitute a rebuke
of counsel.[95]

Appellants also decry the supposed harshness of Judge Ocampo towards the witnesses for the defense, namely:
Lourdes Montalvan, Michael Dizon, Rebecca Seno, Clotilde Soterol, Salvador Boton, Catalina Paghinayan and Paolo
Celso.

With respect to Lourdes Montalvan, Judge Ocampo expressed surprise on "how a 17-year-old girl could go to a man's
apartment all alone." He said that such conduct "does not seem to be a reasonable or a proper behavior for a 17-year-
old girl to do." These statements do not really indicate bias or prejudice against the defense witnesses. The transcript
of stenographic notes reveals that Judge Ocampo uttered them, not to cast doubt on the moral character of Lourdes
Montalvan, but merely to determine the credibility of her story, thus:

"x x x But what I wanted to point out is the question of credibility. That is what we are here for. We want to determine if
it is credible for a 17-year-old college student of the Ateneo who belongs to a good family, whose father is a lawyer
and who could afford to live by herself in a Condominium Unit in Quezon City and that she would go to the
Condominium Unit of a man whom he just met the previous month, all alone by herself, at night and specifically on the
very night July 16, 1997. x x x That is the question that I would like you to consider, x x x I assure you I have no doubts
at all about her moral character and I have the highest respect for Miss Montalvan. x x x."
Strong indication of Judge Ocampo's lack of predilection was his acquiescence for Lourdes Montalvan to clarify during
redirect examination why she found nothing wrong with being alone at Larrañaga's unit. We quote the proceedings of
November 19, 1998, thus:

ATTY. VILLARMIA:
When you went up you said you were alone. What was your feeling of going up to that room alone or that
Q
unit alone?

PROS. GALANIDA
We object, not proper for re-direct. That was not touched during the cross. That should have been asked
during the direct-examination of this witness, Your Honor.

ATTY. VILLARMIA:
We want to clarify why she went there alone.

COURT:
Precisely, I made that observation that does not affect or may affect the credibility of witness the
fact that she went there alone. And so, it is proper to ask her, di ba?
xxx

COURT:
What was your purpose? Ask her now - what was your purpose?

/to the witness:

Will you answer the question of the Court/ What was your purpose or intention in going in Paco's room
Q
that night alone?

WTNESS:
My purpose for going there was to meet Richard, sir, and to follow-up whether we will go out later that
A
night or not. The purpose as to going there alone, sir, I felt, I trusted Paco.

PROS. DUYONGCO:
May we ask the witness not to elaborate, Your Honor.

ATTY. VILLARMIA:
That is her feeling.

COURT:
That was her purpose. It is proper."[96]
Appellants consider as violation of their right to due process Judge Ocampo's remarks labeling Rebecca Seno's and
Catalina Paghinayan's testimony as "incredible"[97] Clotilde Soterol as a "totally confused person who appears to be
mentally imbalanced;"[98] and Salvador Boton and Paulo Celso as "liars."[99]

Suffice it to state that after going over the pertinent transcript of stenographic notes, we are convinced that Judge
Ocampo's comments were just honest observations intended to warn the witnesses to be candid to the court. He
made it clear that he merely wanted to ascertain the veracity of their testimonies in order to determine the truth of the
matter in controversy.[100] That such was his purpose is evident from his probing questions which gave them the
chance to correct or clarify their contradictory statements. Even appellants' counsel de parte acknowledged that Judge
Ocampo's statements were mere "honest observations"[101] If Judge Ocampo uttered harsh words against those
defense witnesses, it was because they made a mockery of the court's proceedings by their deliberate lies. The
frequency with which they changed their answers to Judge Ocampo's clarificatory questions was indeed a challenge
to his patience.

A trial judge is not a wallflower during trial. It is proper for him to caution and admonish witnesses when
necessary and he may rebuke a witness for levity or for other improper conduct.[102] This is because he is called
upon to ascertain the truth of the controversy before him. [103]

It bears stressing at this point that the perceived harshness and impatience exhibited by Judge Ocampo did not at all
prevent the defense from presenting adequately its side of the cases.

D. Right to Produce Evidence

Appellants assail the trial court's exclusion of the testimonies of four (4) airlines personnel [104] which were intended to
prove that Larrañaga did not travel to Cebu from Manila or from Cebu to Manila on July 16, 1997. The trial court's
exclusion of the testimonies is justified. By an alibi, Larrañaga attempted to prove that he was at a place (Quezon City)
so distant that his participation in the crime was impossible. To prove that he was not in the pre-flight and post-flight of
the four (4) major airlines flying the route of Cebu to Manila and Manila to Cebu on July 15 and 16, 1997 would not
prove the legal requirement of "physical impossibility" because he could have taken the flight from Manila to Cebu
prior to that date, such as July 14, 1997. According to Judge Ocampo, it was imperative for appellants' counsel to
prove that Larrañaga did not take a flight to Cebu before July 16, 1997.
In the same way, we cannot fault the trial court for not allowing the defense to continue with the" tedious process of
presenting additional witnesses to prove Larrañaga's enrollment at the Center for Culinary Arts, located at Quezon
City, from June 18, 1997 to July 30, 1997 considering that it would not also prove that he was not in Cebu on July 16
to 17, 1997. It is a known practice of students who are temporarily residing in Metro Manila to return to their provinces
once in a while to spend time with their families. To prove that Larrañaga was enrolled during a certain period of time
does not negate the possibility that he went home to Cebu City sometime in July 1997 and stayed there for a while.

Due process of law is not denied by the exclusion of irrelevant, immaterial, or incompetent evidence, or
testimony of an incompetent witness.[105] It is not error to refuse evidence which although admissible for certain
purposes, is not admissible for the purpose which counsel states as the ground for offering it. [106]

To repeat, due process is satisfied when the parties are afforded a fair and reasonable opportunity to explain their
respective sides of the controversy.[107] In the present case, there is no showing of violation of due process which
justifies the reversal or setting aside of the trial court's findings.

II. The Improper Discharge of Rusia as an Accused


to be a State Witness

Appellants argue that Rusia is not qualified to be a state witness under paragraphs (d) and (e) of Section 9, Rule 119
of the 1985 Rules on Criminal Procedure, which reads:

"Sec. 9. Discharge of the accused to be state witness. When two or more persons are jointly charged with the
commission of any offense, upon motion of the prosecution before resting its case, the court may direct one or more of
the accused to be discharged with their consent so that they may be witness for the state when after requiring the
prosecution to present evidence and the sworn statement of each proposed state witness at a hearing in support of
the discharge, the court is satisfied that:

xxx

(d) Said accused does not appear to be most guilty;

(e) Said accused has not at anytime been convicted of any offense involving moral turpitude.

xxx"
Appellants claim that Rusia was the "most guilty of both the charges of rape and kidnapping" having admitted in open
court that he raped Jacqueline. Furthermore, Rusia admitted having been previously convicted in the United States of
third degree burglary.

It bears stressing that appellants were charged with kidnapping and illegal detention, Thus, Rusia's admission that
he raped Jacqueline does not make him the "most guilty" of the crimes charged. Moreover, far from being the
mastermind, his participation, as shown by the chronology of events, was limited to that of an oblivious follower who
simply "joined the ride" as the commission of the crimes progressed. It may be recalled that he joined the group upon
Rowen's promise that there would be a "big happening" on the night of July 16, 1997. All along, he thought the "big
happening" was just another "group partying or scrounging." In other words, he had no inkling then of appellants' plan
to kidnap and detain the Chiong sisters. Rusia retained his passive stance as Rowen and Josman grabbed Marijoy
and Jacqueline at the waiting shed of Ayala Center. He just remained seated beside the driver's seat, not aiding
Rowen and Josman in abducting the Chiong sisters. When Jacqueline attempted to escape 14 meters away from the
waiting shed, it was Josman who chased her and not Rusia. Inside the car, it was Rowen who punched and
handcuffed the Chiong sisters. At the safehouse of the "Josman Aznar Group," Rusia stayed at the living room while
Larrañaga, James Anthony, Rowen, and Josman molested Marijoy and Jacqueline on separate rooms. At Tan-awan, it
was Josman who ordered Rowen and Ariel to pushed Marijoy into the deep ravine. And Rusia did not even know what
ultimately happened to Jacqueline as he was the first to leave the group. Clearly, the extent of Rusia's participation in
the crimes charged does not make him the "most guilty."

The fact that Rusia was convicted of third degree burglary in Minessotta does not render his testimony inadmissible.
[108]
In People vs. De Guzman[109] we held that although the trial court may have erred in discharging the accused, such
error would not affect the competency and the quality of the testimony of the defendant. In Mangubat vs.
Sandiganbayan,[110] we ruled:

"Anent the contention that Delia Preagido should not have been discharged as a state witness because of a
'previous final conviction' of crimes involving moral turpitude, suffice it to say that 'this Court has time and
again declared that even if the discharged state witness should lack some of the qualifications enumerated by
Section 9, Rule 119 of the Rules of Court, his testimony will not, for that reason alone, be discarded or
disregarded. In the discharge of a co-defendant, the court may reasonably be expected to err; but such error in
discharging an accused has been held not to be a reversible one. This is upon the principle that such error of the
court does not affect the competency and the quality of the testimony of the discharged defendant."
Furthermore, it may be recalled that Rusia was extremely bothered by his conscience and was having nightmares
about the Chiong sisters, hence, he decided to come out in the open. [111] Such fact alone is a badge of truth of his
testimony.

But, more importantly, what makes Rusia's testimony worthy of belief is the marked compatibility between such
testimony and the physical evidence. Physical evidence is an evidence of the highest order. It speaks eloquently than
a hundred witnesses.[112] The presence of Marijoy's ravished body in a deep ravine at Tan-awan, Carcar with tape on
her mouth and handcuffs on her wrists certainly bolstered Rusia's testimony on what actually took place from Ayala
Center to Tan-awan. Indeed, the details he supplied to the trial court were of such nature and quality that only a
witness who actually saw the commission of the crimes could furnish. What is more, his testimony was corroborated
by several other witnesses who saw incidents of what he narrated, thus: (1) Rolando Dacillo and Mario Minoza saw
Jacqueline's two failed attempts to escape from appellants; (2) Alfredo Duarte saw Rowen when he bought barbeque
and Tanduay at Nene's Store while the white van, driven by Alfredo Caño, was waiting on the side of the road and he
heard voices of "quarreling male and female" emanating from the van; (3) Manuel Camingao testified on the presence
of Larrañaga and Josman at Tan-awan, Carcar at dawn of July 17, 1997; and lastly, (4) Benjamin Molina and Miguel
Vergara recognized Rowen as the person who inquired from them where he could find a vehicle for hire, on the
evening of July 16, 1997. All these bits and pieces of story form part of Rusia's narration. With such strong anchorage
on the testimonies of disinterested witnesses, how can we brush aside Rusia's testimony?

Rusia's discharge has the effect of an acquittal.[113] We are not inclined to recall such discharge lest he will be placed in
double jeopardy. Parenthetically, the order for his discharge may only be recalled in one instance, which is when he
subsequently failed to testify against his co-accused. The fact that not all the requisites for his discharge are present is
not a ground to recall the discharge order. Unless and until it is shown that the he failed or refused to testify
against his co-accused, subsequent proof showing that any or all of the conditions listed in Sec. 9 of Rule 119
were not fulfilled would not wipe away the resulting acquittal.[114]

III. Appreciation of the Evidence for the


Prosecution and the Defen

Settled is the rule that the assessment of the credibility of witnesses is left largely to the trial court because of its
opportunity, not available to the appellate court, to see the witnesses on the stand and determine by their demeanor
whether they are testifying truthfully or lying through their teeth. Its evaluation of the credibility of witnesses is well-nigh
conclusive on this Court, barring arbitrariness in arriving at his conclusions. [115]

We reviewed the records exhaustively and found no compelling reason why we should deviate from the findings of fact
and conclusion of law of the trial court. Rusia's detailed narration of the circumstances leading to the horrible death
and disappearance of Jacqueline has all the earmarks of truth. Despite the rigid cross-examination conducted by the
defense counsel, Rusia remained steadfast in his testimony. The other witnesses presented by the prosecution
corroborated his narration as to its material points which reinforced its veracity.

Appellants proffered the defense of denial and alibi. As between their mere denial and the positive identification and
testimonies of the prosecution witnesses, we are convinced that the trial court did not err in according weight to the
latter. For the defense of alibi to prosper, the accused must show that he was in another place at such a period of time
that it was physically impossible for him to have been at the place where the crime was committed at the time of its
commission.[116] These requirements of time and place must be strictly met.[117] A thorough examination of the
evidence for the defense shows that the appellants failed to meet these settled requirements. They failed to establish
by clear and convincing evidence that it was physically impossible for them to be at the Ayala Center, Cebu City when
the Chiong sisters were abducted. What is clear from the evidence is that Rowen, Josman, Ariel, Alberto, James
Anthony and James Andrew were all within the vicinity of Cebu City on July 16, 1997.

Not even Larrañaga who claimed to be in Quezon City satisfied the required proof of physical impossibility. During the
hearing, it was established that it takes only one (1) hour to travel by plane from Manila to Cebu and that there
are four (4) airline companies plying the route. One of the defense witnesses admitted that there are several flights
from Manila to Cebu each morning, afternoon and evening. Taking into account the mode and speed of transportation,
it is therefore within the realm of possibility for Larrañaga to be in Cebu City prior to or exactly on July 16, 1997.
Larrañaga's mother, Margarita Gonzales-Larrañaga, testified that his son was scheduled to take a flight from Manila to
Cebu on July 17, 1997 at 7:00 o'clock in the evening, but he was able to take an earlier flight at 5:00 o'clock in the
afternoon. Margarita therefore claimed that his son was in Cebu City at around 6:00 o'clock in the evening of July 17,
1997 or the day after the commission of the crime. However, while Larrañaga endeavored to prove that he went home
to Cebu City from Manila only in the afternoon of July 17, 1997, he did not produce any evidence to show the last
time he went to Manila from Cebu prior to such crucial date. If he has a ticket of his flight to Cebu City on July 17,
1997, certainly, he should also have a ticket of his last flight to Manila prior thereto. If it was lost, evidence to that effect
should have been presented before the trial court.

Indeed, Larrañaga's presence in Cebu City on July 16, 1997 proved to be not only a possibility but a reality. No less
than four (4) witnesses for the prosecution identified him as one of the two men talking to Marijoy and Jacqueline on
the night of July 16, 1997. Shiela Singsontestified that on July 16, 1997, at around 7:20 in the evening, she saw
Larrañaga approach Marijoy and Jacqueline at the West Entry of Ayala Center. The incident reminded her of
Jacqueline's prior story that he was Marijoy's admirer. She (Shiela) confirmed that she knows Larrañaga since she
had seen him on five (5) occasions. Analie Konahap also testified that on the same evening of July 16, 1997, at
about 8:00 o'clock, she saw Marijoy and Jacqueline talking to two (2) men at the West Entry of Ayala Center.
She recognized them as Larrañaga and Josman, having seen them several times at Glicos, a game zone, located
across her office at the third level of Ayala Center. Williard Redobles, the security guard then assigned at Ayala
Center, corroborated the foregoing testimonies of Shiela and Analie. In addition, Rosendo Rio, a businessman from
Cogon, Carcar, declared that he saw Larrañaga at Tan-awan at about 3:30 in the morning of July 17, 1997. The latter
was leaning against the hood of a white van.[118]

Taking the individual testimonies of the above witnesses and that of Rusia, it is reasonable to conclude that Larrañaga
was indeed in Cebu City at the time of the commission of the crimes and was one of the principal perpetrators.

Of course, we have also weighed the testimonial and documentary evidence presented by appellants in support of
their respective alibi. However, they proved to be wanting and incredible.

Salvador Boton, the security guard assigned at the lobby of Loyola Heights Condominium, testified on the entry of
Larrañaga's name in the Condominium's logbook to prove that he was in Quezon City on the night of July 16, 1997.
However, a cursory glance of the entry readily shows that it was written at the uppermost portion of the logbook and
was not following the chronological order of the entries. Larrañaga's 10:15 entry was written before the 10:05 entry
which, in turn, was followed by a 10:25 entry. Not only that, the last entry at the prior page was 10:05. This renders the
authenticity of the entries doubtful. It gives rise to the possibility that the 10:15 entry was written on a later date when
all the spaces in the logbook were already filled up and thus, the only remaining spot was the uppermost portion.
Surprisingly, the alleged arrival of Larrañaga and his friend Richard Antonio at the Loyola Heights Condominium in the
early evening of July 16, 1997 was not recorded in the logbook.

Rowena Bautista, a teacher at the Center for Culinary Arts, Quezon City, testified that Larrañaga attended her lecture
on Applied Mathematics on July 16, 1997 from 8:00 o'clock to 11:30 in the morning. [119] This runs counter to
Larrañaga's affidavit[120] stating that on the said date, he took his mid-term examinations in the subject Fundamentals
of Cookery from 8:00 o'clock in the morning to 3:30 o'clock in the afternoon.

With respect to Larrañaga's friends, the contradictions in their testimonies, painstakingly outlined by the Solicitor
General in the appellee's brief, reveal their unreliability. To our mind, while it may be possible that Larrañaga took the
mid-term examinations in Fundamentals of Cookery and that he and his friends attended a party at the R and R Bar
and Restaurant, also in Quezon City, however it could be that those events occurred on a date other than July 16,
1997.

Clotilde Soterol, in defense of Ariel and Alberto (the driver and the conductor of the van) attempted to discredit
Rusia's testimony by testifying that the white van with plate no. GGC-491 could not have been used in the commission
of the crimes on the night of July 16, 1997 because it was parked in her shop from 7:00 o'clock in the evening of the
same date until 11:00 o'clock in the morning of July 17, 1997. What makes Soterol's testimony doubtful is her
contradicting affidavits. In the first affidavit dated July 28, 1997, or twelve (12) days from the occurrence of the crime,
she stated that Alberto took the van from her shop at 3:00 o'clock in the afternoon of July 16, 1997 and
returned it for repair only on July 22, 1997.[121] But in her second affidavit dated October 1, 1997, she declared that
Alberto left the van in her shop at 7:00 o'clock in the evening of July 16, 1997 until 11:00 o'clock in the morning of July
17, 1997.[122]Surely, we cannot simply brush aside the discrepancy and accept the second affidavit as gospel truth.

Appellants attempted to establish their defense of alibi through the testimonies of relatives and friends who obviously
wanted them exculpated of the crimes charged. Naturally, we cannot but cast an eye of suspicion on their testimonies.
In People vs. Ching,[123] we ruled that it is but natural, although morally unfair, for a close relative to give weight to
blood ties and close relationship in times of dire needs especially when a criminal case is involved.

Rusia positively identified the appellants. The settled rule is that positive identification of an accused by credible
witnesses as the perpetrator of the crime demolishes alibi, the much abused sanctuary of felons.[124] Rusia's testimony
was corroborated by several disinterested witnesses who also identified the appellants. Most of them are neither
friends, relatives nor acquaintances of the victims' family. As we reviewed closely the transcript of stenographic notes,
we could not discern any motive on their part why they should testify falsely against the appellants. In the same vein, it
is improbable that the prosecution would tirelessly go through the rigors of litigation just to destroy innocent lives.

Meanwhile, appellants argue that the prosecution failed to prove that the body found at the foot of a deep ravine in
Tan-awan, Carcar was that of Marijoy. We are not convinced. Rusia testified that Josman instructed Rowen "to get rid"
of Marijoy and that following such instruction, Rowen and Ariel pushed her into the deep ravine. Furthermore,
Inspector Edgardo Lenizo,[125] a fingerprint expert, testified that the fingerprints of the corpse matched those of Marijoy.
[126]
The packaging tape and the handcuff found on the dead body were the same items placed on Marijoy and
Jacqueline while they were being detained.[127] The body had the same clothes worn by Marijoy on the day she was
abducted.[128] The members of the Chiong family personally identified the corpse to be that of Marijoy [129] which they
eventually buried. They erected commemorative markers at the ravine, cemetery and every place which mattered to
Marijoy. Indeed, there is overwhelming and convincing evidence that it was the body of Marijoy that was found in the
ravine.

Appellants were charged with the crime of kidnapping and serious illegal detention in two (2) Informations and were
convicted thereof. Article 267 of the Revised Penal Code, as amended by Section 8 of R.A. 7659, reads:

"Art. 267. Kidnapping and serious illegal detention. Any private individual who shall kidnap or detain another, or in
any other manner deprive him of 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 above mentioned were present 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 elements of the crime defined in Art. 267 above are: (a) the accused is a private individual; (b) he kidnaps or
detains another, or in any manner deprives the latter of his liberty;
(c) the act of detention or kidnapping must be illegal; and (d) in the commission of the offense, any of the four (4)
circumstances mentioned above is present.[130]

There is clear and overwhelming evidence that appellants, who are private individuals, forcibly dragged Marijoy and
Jacqueline into the white car, beat them so they would not be able to resist, and held them captive against their will. In
fact, Jacqueline attempted to free herself twice from the clutches of appellants the first was near the Ayala Center and
the second was in Tan-awan, Carcar but both attempts failed. Marijoy was thrown to a deep ravine, resulting to her
death. Jacqueline, on the other hand, has remained missing until now.

Article 267 states that if the victim is killed or died as a consequence of the detention, or is raped or subjected to
torture or dehumanizing acts, the maximum penalty shall be imposed. In People vs. Ramos,[131] citing Parulan vs.
Rodas,[132] and People vs. Mercado,[133] we held that this provision given rise to a special complex crime, thus:

"Prior to 31 December 1993, the date of effectivity of RA No. 7659, the rule was that where the kidnapped victim was
subsequently killed by his abductor, the crime committed would either be a complex crime of kidnapping with murder
under Art 48 of the Revised Penal Code, or two (2) separate crimes of kidnapping and murder. Thus, where the
accused kidnapped the victim for the purpose of killing him, and he was in fact killed by his abductor, the crime
committed was the complex crime of kidnapping with murder under Art. 48 of the Revised Penal Code, as the
kidnapping of the victim was a necessary means of committing the murder. On the other hand, where the victim was
kidnapped not for the purpose of killing him but was subsequently slain as an afterthought, two (2) separate crimes of
kidnapping and murder were committed.
However, RA No. 7659 amended Art. 267 of The Revised Penal Code by adding thereto a last paragraph which
provides
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.
This amendment introduced in our criminal statutes, the concept of 'special complex crime' of kidnapping
with murder or homicide. It effectively eliminated the distinction drawn by the courts between those cases where the
killing of the kidnapped victim was purposely sought by the accused, and those where the killing of the victim was not
deliberately resorted to but was merely an afterthought. Consequently, the rule now is: Where the person
kidnapped is killed in the course of the detention, regardless of whether the killing was purposely sought or
was merely an afterthought, the kidnapping and murder or homicide can no longer be complexed under Art.
48, nor be treated as separate crimes, but shall be punished as a special complex crime under the last
paragraph of Art. 267, as amended by RA No. 7659."
The prosecution was able to prove that Marijoy was pushed to a ravine and died. Both girls were raped by the gang. In
committing the crimes, appellants subjected them to dehumanizing acts. Dehumanization means deprivation of human
qualities, such as compassion.[134] From our review of the evidence presented, we found the following dehumanizing
acts committed by appellants: (1) Marijoy and Jacqueline were handcuffed and their mouths mercilessly
taped; (2) they were beaten to severe weakness during their detention; (3)Jacqueline was made to dance amidst the
rough manners and lewd suggestions of the appellants; (4) she was taunted to run and forcibly dragged to the van;
and 5) until now, Jacqueline remains missing which aggravates the Chiong family's pain. All told, considering that the
victims were raped, that Marijoy was killed and that both victims were subjected to dehumanizing acts, the imposition
of the death penalty on the appellants is in order.

Thus, we hold that all the appellants are guilty beyond reasonable doubt of the special complex crime of kidnapping
and serious illegal detention with homicide and rape in Criminal Case No. CBU-45303 wherein Marijoy is the victim;
and simple kidnapping and serious illegal detention in Criminal Case No. CBU-45304 wherein Jacqueline is the victim.

A discussion on the nature of special complex crime is imperative. Where the law provides a single penalty for two or
more component offenses, the resulting crime is called a special complex crime. Some of the special complex crimes
under the Revised Penal Code are (1)robbery with homicide,[135] (2) robbery with rape,[136] (3) kidnapping with serious
physical injuries,[137] (4) kidnapping with murder or homicide,[138] and (5) rape with homicide.[139] In a special complex
crime, the prosecution must necessarily prove each of the component offenses with the same precision that
would be necessary if they were made the subject of separate complaints. As earlier mentioned, R.A. No. 7659
amended Article 267 of the Revised Penal Code by adding thereto this provision: "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; and that this provision gives rise to a special complex crime. In the cases at bar,
particularly Criminal Case No. CBU-45303, the Information specifically alleges that the victim Marijoy was raped "on
the occasion and in connection" with her detention and was killed "subsequent thereto and on the occasion
thereof." Considering that the prosecution was able to prove each of the component offenses, appellants should be
convicted of the special complex crime of kidnapping and serious illegal detention with homicide and rape. It
appearing from the overwhelming evidence of the prosecution that there is a "direct relation, and intimate
connection"[140] between the kidnapping, killing and raping of Marijoy, rape cannot be considered merely as an
aggravating circumstance but as a component offense forming part of the herein special complex crime. It bears
reiterating that in People vs. Ramos,[141] and People vs. Mercado,[142] interpreting Article 267, we ruled that "where the
person killed in the course of the detention, regardless of whether the killing was purposely sought or was
merely an afterthought, the kidnapping and murder or homicide can no longer be complexed under Article 48, nor be
treated as separate crimes, but shall be punished as a special complex crime under the last paragraph of
Article 267." The same principle applies here. The kidnapping and serious illegal detention can no longer be
complexed under Article 48, nor be treated as separate crime but shall be punished as a special complex
crime. At any rate, the technical designation of the crime is of no consequence in the imposition of the
penalty considering that kidnapping and serious illegal detention if complexed with either homicide or rape,
still, the maximum penalty of death shall be imposed.

Anent Criminal Case No. CBU-45304 wherein Jacqueline is the victim, the penalty of reclusion perpetua shall be
imposed upon appellants considering that the above-mentioned component offenses were not alleged in the
Information as required under Sections 8 and 9,[143]Rule 110 of the Revised Rules of Criminal Procedure. Consistent
with appellants' right to be informed of the nature and cause of the accusation against him, these attendant
circumstances or component offenses must be specifically pleaded or alleged with certainty in the information and
proven during the trial. Otherwise, they cannot give rise to a special complex crime, as in this case. Hence, the crime
committed is only simple kidnapping and serious illegal detention.

From the evidence of the prosecution, there is no doubt that all the appellants conspired in the commission of the
crimes charged. Their concerted actions point to their joint purpose and community of intent. Well settled is the rule
that in conspiracy, direct proof of a previous agreement to commit a crime is not necessary. It may be deduced from
the mode and manner by which the offense was perpetrated, or inferred from the acts of the accused themselves
when such point to a joint design and community of interest. [144]Otherwise stated, it may be shown by the conduct of
the accused before, during, and after the commission of the crime. [145] Appellants' actions showed that they have the
same objective to kidnap and detain the Chiong sisters. Rowen and Josman grabbed Marijoy and Jacqueline from the
vicinity of Ayala Center. Larrañaga, James Andrew and James Anthony who were riding a red car served as back-up
of Rowen and Josman. Together in a convoy, they proceeded to Fuente Osmeña to hire a van, and thereafter, to the
safehouse of the "Jozman Aznar Group" in Guadalupe, Cebu where they initially molested Marijoy and Jacqueline.
They headed to the South Bus Terminal where they hired the white van driven by Alberto, with Ariel as the conductor.
Except for James Andrew who drove the white car, all appellants boarded the white van where they held Marijoy and
Jacqueline captive. In the van, James Anthony taped their mouths and Rowen handcuffed them together. They drank
and had a pot session at Tan-awan. They encircled Jacqueline and ordered her to dance, pushing her and ripping her
clothes in the process. Meanwhile, Larrañaga raped Marijoy, followed by Rowen, James Anthony, Alberto, and Ariel.
On other hand, Josman and James Andrew raped Jacqueline. Upon Josman's order, Rowen and Ariel led Marijoy to
the cliff and pushed her. After leaving Tan-awan, they taunted Jacqueline to run for her life. And when Rusia got off
from the van near Ayala Center, the appellants jointly headed back to Cebu City.

Clearly, the argument of Rowen, Ariel and Alberto that they were not part of the "conspiracy" as they were merely
present during the perpetration of the crimes charged but not participants therein, is bereft of merit. To hold an
accused guilty as co-principal by reason of conspiracy, he must be shown to have performed an overt act in
pursuance or furtherance of the complicity. [146] There must be intentional participation in the transaction with a view to
the furtherance of the common design and purpose. [147] Responsibility of a conspirator is not confined to the
accomplishment of a particular purpose of conspiracy but extends to collateral acts and offenses incident to and
growing out of the purpose intended.[148] As shown by the evidence for the prosecution, Rowen, Ariel and Alberto were
not merely present at the scene of the crime.

Indeed, all appellants, except James Anthony who was 16 years old when the crimes charged were committed, share
the same degree of responsibility for their criminal acts. Under Article 68 [149] of the Revised Penal Code, the imposable
penalty on James Anthony, by reason of his minority, is one degree lower than the statutory penalty. This means that
he stands to suffer the penalty of reclusion perpetua in Criminal Case No. CBU-45303 and twelve (12) years of prision
mayor in its maximum period, as minimum, to seventeen (17) years of reclusion temporal in its medium period, as
maximum, in Criminal Case No. CBU-45304. The penalty for the special complex crime of kidnapping and serious
illegal detention with homicide and rape, being death, one degree lower therefrom is reclusion perpetua.[150] On the
other hand, the penalty for simple kidnapping and serious illegal detention is reclusion perpetua to death. One degree
lower from the said penalty is reclusion temporal.[151] There being no aggravating and mitigating circumstance, the
penalty to be imposed on James Anthony is reclusion temporal in its medium period. Applying the Indeterminate
Sentence Law, he should be sentenced to suffer the penalty of twelve (12) years of prision mayor in its maximum
period, as minimum, to seventeen (17) years of reclusion temporal in its medium period, as maximum.[152]

As for the rest of the appellants, the foregoing established facts call for the imposition on them of the death penalty in
Criminal Case No. CBU-45303 and reclusion perpetua in Criminal Case No. CBU-45304. It is therefore clear that the
trial court erred in merely imposing "two (2) Reclusiones Perpetua," rationalizing that justice must be tempered with
mercy. We must be reminded that justice is not ours to give according to our sentiments or emotions. It is in the law
which we must faithfully implement.

At times we may show compassion and mercy but not at the expense of the broader interest of fair play and justice.
While we also find it difficult to mete out the penalty of death especially on young men who could have led productive
and promising lives if only they were given enough guidance, however, we can never go against what is laid down in
our statute books and established jurisprudence.

In keeping with the current jurisprudence, the heirs of Marijoy and Jacqueline are entitled to the amount of
P100,000.00 in each case by way of civil indemnity ex delicto.[153] As regards the actual damages, it appears that the
award of P200,000.00 is not supported by evidence. To be entitled to actual damages, it is necessary to prove the
actual amount of loss with a reasonable degree of certainty, premised upon competent proof and on the best evidence
obtainable to the injured party.[154] Thus, in light of the recent case of People vs. Abrazaldo,[155] we grant the award
of P25,000.00 as temperate damages in each case, in lieu of actual damages. There being proofs that the victims'
heirs suffered wounded feelings, mental anguish, anxiety and similar injury, we award an equitable amount of
P150,000.00 as moral damages, also in each case. Exemplary damages is pegged at P100,000.00 in each case[156]
to serve as a deterrent to serious wrongdoings and as a vindication of undue sufferings and wanton invasion of the
rights of the victims and as punishment for those guilty of outrageous conduct.

WHEREFORE, the Decision of the Regional Trial Court, Branch 7, Cebu City in Criminal Cases Nos. CBU-45303 and
45304 is AFFIRMED with the following MODIFICATIONS:

(1) In Criminal Case No. CBU-45303, appellants FRANCISCO JUAN LARRA×AGA alias "PACO;" JOSMAN AZNAR;
ROWEN ADLAWAN alias "WESLEY;" ALBERTO CA×O alias "ALLAN PAHAK;" ARIEL BALANSAG; and JAMES
ANDREW UYalias "MM," are found guilty beyond reasonable doubt of the special complex crime of kidnapping and
serious illegal detention with homicide and rape and are sentenced to suffer the penalty of DEATH by lethal injection;
(2) In Criminal Case No. CBU-45304, appellants FRANCISCO JUAN LARRA×AGA alias "PACO;" JOSMAN
AZNAR; ROWEN ADLAWAN alias "WESLEY;" ALBERTO CA×O alias "ALLAN PAHAK;" ARIEL BALANSAG;
and JAMES ANDREW UY alias "MM," are found guilty beyond reasonable doubt of simple kidnapping and serious
illegal detention and are sentenced to suffer penalty of RECLUSION PERPETUA;

(3) In Criminal Case No. CBU-45303, appellant JAMES ANTHONY UY, who was a minor at the time the crime was
committed, is likewise found guilty beyond reasonable doubt of the special complex crime of kidnapping and serious
illegal detention with homicide and rape and is hereby sentenced to suffer the penalty of RECLUSION PERPETUA; in
Criminal Case No. CBU-45304, he is declared guilty of simple kidnapping and serious illegal detention and is
sentenced to suffer the penalty of twelve (12) years of prision mayor in its maximum period, as MINIMUM, to
seventeen (17) years of reclusion temporal in its medium period, as MAXIMUM.

(4) Appellants are ordered to pay jointly and severally the heirs of Marijoy and Jacqueline, in each case, the amounts
of (a) P100,000.00 as civil indemnity, (b) P25,000.00 as temperate damages, (c) P150,000.00 as moral damages, and
(d) P100,000.00 as exemplary damages.

Three (3) Justices of the Court maintain their position that RA 7659 is unconstitutional insofar as it prescribes the
death penalty; nevertheless, they submit to the ruling of the majority that the law is constitutional and the death
penalty can be lawfully imposed in the case at bar.

In accordance with Article 83 of The Revised Penal Code, as amended by Section 25 of RA No. 7659, upon the finality
of this Decision let the records of this case be forthwith forwarded to the Office of the President for the possible
exercise of Her Excellency's pardoning power.

SO ORDERED.
PEOPLE OF THE PHILIPPINES vs. ARNOLD GARCHITORENA Y CAMBA a.k.a. JUNIOR; JOEY PAMPLONA
a.k.a. NATO and JESSIE GARCIA Y ADORINO
G.R. No. 175605 August 28, 2009
LEONARDO-DE CASTRO, J.:
For automatic review is the Decision1 of the Court of Appeals (CA) in CA-G.R. CR.-HC No. 00765 which affirmed an
earlier Decision2 of the Regional Trial Court (RTC) of Binan City, Branch 25 in Criminal Case No.9440-B, finding
accused-appellants Arnold Garchitorena y Gamba, a.k.a. "Junior," Joey Pamplona, a.k.a. "Nato," and Jessie Garcia y
Adorino guilty beyond reasonable doubt of murder and sentencing them to suffer the penalty of death and to indemnify
jointly and severally the heirs of the victim in the amount of ₱50,000.00 as civil indemnity, ₱50,000.00 as moral
damages, ₱50,000.00 as exemplary damages, ₱16,700.00 as actual damages, ₱408,000.00 for loss of earning
capacity and to pay the costs of the suit.
The conviction of accused-appellants stemmed from an Information 3 dated January 22, 1996, filed with the RTC for
the crime of Murder, the accusatory portion of which reads:
That on or about September 22, 1995, in the Municipality of Binan, Province of Laguna, Philippines and within the
jurisdiction of this Honorable Court, accused Arnold Garchitorena y Gamba, alias "Junior", Joey Pamplona alias "Nato"
and Jessie Garcia y Adorino, conspiring, confederating together and mutualy helping each other, with intent to kill,
while conveniently armed with a deadly bladed weapon, with abuse of superior strength, did then and there willfully,
unlawfully and feloniously attack, assault and stab one Mauro Biay y Almarinez with the said weapon, thereby inflicting
upon him stab wounds on the different parts of his body which directly caused his death, to the damage and prejudice
of his surviving heirs.
That the crime was committed with the qualifying aggravating circumstance of abuse of superior strength.
CONTRARY TO LAW.
When arraigned, accused-appellants, duly assisted by their counsel, pleaded not guilty to the charge. Thereafter, trial
ensued.
The prosecution presented three (3) witnesses; namely, Dulce Borero, elder sister of the victim Mauro Biay and
eyewitness to the killing of her brother; Dr. Rolando Poblete, who conducted an autopsy on the body of the victim and
prepared the post-mortem report; and Amelia Biay, the victim’s widow. The evidence for the prosecution, as culled
from the CA Decision under review, is as follows:
In the proceedings before the trial court, witness for the prosecution Dulce Borero testified that on September 22,
1995, at around 9:00 o’clock in the evening, she was selling "balut" at Sta. Inez, Almeda Subdivision, Brgy. Dela Paz,
Binan, Laguna. Her brother, Mauro Biay, also a "balut" vendor", was also at the area, about seven (7) arms length
away from her when she was called by accused Jessie Garcia. Borero testified that when her brother Mauro
approached Jessie, the latter twisted the hand of her brother behind his back and Jessie’s companions- accused
Arnold Garchitorena and Joey Pamplona – began stabbing her brother Mauro repeatedly with a shiny bladed
instrument. Joey was at the right side of the victim and was strangling Mauro from behind. Witness saw her brother
Mauro struggling to free himself while being stabbed by the three (3) accused., until her brother slumped facedown on
the ground. Arnold then instructed his two co-accused to run away. During cross-examination, Borero claims that she
wanted to shout for help but nothing came out from her mouth. When the accused had left after the stabbing incident,
witness claimed that she went home to call her elder brother Teodoro Biay, but when they returned to the scene, the
victim was no longer there as he had already been brought to the Perpetual Help Hospital. They learned from the
tricycle driver who brought Mauro top the hospital that their brother was pronounced dead on arrival.
Dr. Rolando Poblete, the physician who conducted an autopsy on victim Mauro Biay and prepared the post-mortem
report, testified that the victim’s death was caused by "hypovolemic shock secondary to multiple stab wounds."
Witness specified the eight (8) stab wounds suffered by the victim – one in the neck, two in the chest, one below the
armpit, two on the upper abdomen, one at the back and one at the left thigh – and also a laceration at the left forearm
of Mauro. According to the expert witness, the nature of stab wounds indicate that it may have been caused by more
than one bladed instrument.
The victim’s widow, Amelia Biay, testified that she incurred burial expenses amounting to ₱16,700.00 due to the death
of her husband. Also, her husband allegedly earned a minimum of ₱300.00 a day as a "balut" vendor and ₱100.00
occasionally as a part-time carpenter.
The accused-appellants denied the charge against them. Specifically, accused-appellant Joey Pamplona denied that
he participated in the stabbing of Mauro Bay, accused-appellant Jessie Garcia interposed the defense of alibi, while
accused-appellant Arnold Garchitorena interposed the defense of insanity. Succinctly, the CA Decision summed up
their respective defenses:
On the other hand, accused Joey Pamplona denied that he participated in the stabbing of Mauro Biay. Joey Pamplona
claims that he was seated on a bench when co-accused Arnold came along. Then the "balut" vendor arrived and Joey
saw Arnold stand up, pull something from the right side of his pocket and stab the "balut" vendor once before running
away. Joey Pamplona testified that after the stabbing incident, due to fear that Arnold might also stab him, he also ran
away to the store of a certain Mang Tony, a barangay official and related the incident to Aling Bel, the wife of Mang
Tony. Joey Pamplona said that he stayed at Mang Tony’s store until his father arrived and told him to go home.
Danilo Garados testified that on Septemebr 22, 1995, he was at the store of Mang Tony to buy cigarettes and saw
Arnold and Joey seated on the bench near the artesian well. Arnold and Joey allegedly called Mauro Biay and he saw
Arnold stabbing Mauro. Jessie Garcia was not there and Joey allegedly ran away when Arnold stabbed Mauro.
Clavel Estropegan testified that on September 22, 1995, around 9:00 p.m. Joey Pamplona entered her store and told
her that Junior or Arnold Garchitorena was stabbing somebody. She did not hear any commotion outside her house
which is just four houses away from the artesian well. However, she closed her store for fear that Arnold will enter her
house.
Barangay Captain Alfredo Arcega testified that he investigated the stabbing incident and, although he had no personal
knowledge, he found out that it was Arnold Garchitorena who stabbed Mauro Biay. Upon questioning Arnold, the latter
admitted that he did stab Mauro.
Defense witness Miguelito Gonzalgo testified that on September 22, 1995, he was in his shoe factory at his house
located at 186 Sta. Teresita Street, Almeda Subdivision, Binan when he heard Mauro Biay shouting, and so he went
out of his house. He allegedly saw two persons "embracing" each other near the artesian well. He recognized these
two persons as Mauro and Arnold. He saw Arnold pulling out a knife from the body of Mauro and the latter slowly fell
down on his side. After Arnold washed his hands at the artesian well and walked away towards the house of his aunt,
this witness approached Mauro and seeing that the victim was still breathing, went to get a tricycle to bring Mauro to
the hospital. When he got back to the area, there were many people who helped board Mauro in the tricycle and they
brought him to the Perpetual Help Hospital in Binan.
The other co-accused Jessie Garcia took the stand and claimed that on September 22, 1995, between 8:00 and 9:00
in the evening, he was still riding a bus from his work in Blumentritt. He arrived at his home in Binan only at 11:00 p.m.
On September 24, 1995, he was fetched by two (2) policemen and two (2) Barangay Tanods from his house and
brought to the Binan Police Station for questioning. Thereafter, he was put in jail and incarcerated for six (6) months
without knowing the charges against him. He was only informed that he was one of the suspects in the killing of Mauro
Biay by his mother.
With respect to Arnold Garchitorena, Dr. Evelyn Belen, Medical Officer III and resident physician of the National Center
for Mental Health, testified that she examined the accused Arnold and based on the history of the patient, it was found
that he had been using prohibited drugs like shabu and marijuana for two (2) years prior to the stabbing incident in
1995. The patient is allegedly suffering from schizophrenia, wherein he was hearing auditory voices, seeing strange
things and is delusional. However, Dr. Belen also testified that the accused Garchitorena had remissions or
exaservation and understands what he was doing and was aware of his murder case in court. 4
On May 9, 2001, the trial court rendered a Decision, 5 as follows:
WHEREFORE, IN THE LIGHT OF ALL THE FOREGOING CONSIDERATIONS, the Court finds accused Arnold
Garchitorena y Gamboa alias Junior, Joey Pamplona alias Nato and Jessie Garcia y Adorino GUILTY beyond
reasonable of the crime of "MURDER" as defined and penalized under Article 248 of the Revised Penal Code, as
amended, by Republic Act 7659, (Heinous Crimes). Accordingly, all of them are hereby sentenced to suffer the penalty
of DEATH.
Furthermore, all of the accused are hereby ordered to pay jointly and severally Amelia Biay, widow of the victim Mauro
Biay, the following sums:
a) 50,000.00 – as and for civil indemnity
b) 50,000.00 – as and for moral damages
c) 50,000.00 – as and for exemplary damages
d) 16,700.00 – as and for actual damages
e) 408,000.00 – as and for loss of the earning capacity of Mauro Biay; and
f) To pay the costs of suit.
Likewise, the Provincial Warden of the Provincial Jail, Sta. Cruz, Laguna, is hereby ordered to transfer/commit the
three (3) accused to the New Bilibid Prisons, Muntinlupa City, immediately upon receipt hereof.
Considering that death penalty was meted against all of the accused, let the entire records of the above-entitled case
be forwarded to the Supreme Court for automatic review and judgment pursuant to Rule 122, Sec.10 of the Revised
Rules of Criminal Procedure.
SO ORDERED.6
Accused-appellants appealed to the CA. Pamplona and Garcia reiterated their denial of the charge against them.
Garchitorena who never denied his participation in the killing, insisted, however, insisted that he is exempt from
criminal liability because he was suffering from a mental disorder before, during and after the commission of the crime.
On May 31, 2006, the CA rendered the Decision7 now under review, affirming RTC’s Decision in toto, thus:
WHEREFORE, based on the foregoing premises, the instant appeal is DISMISSED. Accordingly, the appealed March
9, 2001 Decuision of the Regional Trial Court of Binan, Laguna, Branch 25, in Criminal Case No. 9440-B finding
herein accused-appellants guilty beyond reasonable doubt of the crime of murder is AFFIRMED in its entirety.
SO ORDERED.
In arriving at the assailed Decision, the CA ratiocinated as follows:
After studying the records of this case, we do not find any reason to overturn the ruling of the trial court.
Despite the testimony of defense witnesses that it was only accused-appellant Arnold Garchitorena who stabbed the
victim Mauro Biay, we find reason to uphold the trial court’s giving credence to prosecution witness Dulce Borero who
testified as an eyewitness on the circumstances surrounding the incident and the manner by which the crime
committed.
Defense witness Garados testified that he was at the store and saw both Arnold and Joey at the vicinity where the
stabbing incident happened, seated on a bench near the artesian well, when they called the victim Mauro. Defense
witness Gonzalgo was in his house when he heard the commotion and went outside to see Arnold and Mauro
"embracing" near the artesian well and the former pulling a knife from the body of the latter. On the other hand,
prosecution witness Borero was merely seven arms length away from the incident and could easily see the victim
Mauro overpowered and attacked by his assailants, Arnold Garchitorena, Joey Pamplona and Jessie Garcia. She
witnessed the stabbing incident in its entirely and positively identified the accused and their criminal acts. It is a well-
settled rule that the evaluation of testimonies of witnesses by the trial court is received on appeal with the highest
respect because such court has the direct opportunity to observe the witnesses on the stand and determine if they are
telling the truth or not. (People vs. Cardel, 336 SCRA 144)
Evidence presented by the prosecution shows that the accused conspired to assault the victim Mauro Biay. Accused
Jessie Garcia was the one who called the victim and prompted the latter to approach their group near the artesian
well. When the victim was near enough, accused Jessie Garcia and co-accused Joey Pamplona restrained Mauro
Biay and overpowered him. Witness Borero then saw the two accused, Jessie Garcia and Joey Pamplona, together
with their co-accused Arnold Garchitorena instructed his two co-accused to run. Conspiracy is apparent in the
concerted action of the three accused. There is conspiracy when two or more persons come to an agreement
concerning the commission of a felony and decide to commit it (People vs. Pendatun, 434 SCRA 148). Conspiracy
may be deduced from the mode and manner in which the offense was perpetrated or inferred from the acts of the
accused which show a joint or common purpose and design, a concerted action and community of interest among the
accused (People vs. Sicad, et al., 391 SCRA 19).
Likewise, we affirm the trial court’s appreciation of the aggravating circumstance of abuse of superior strength to
qualify the crime into murder. "While it is true that superiority in number does not per se mean superiority in strength,
the appellants in this case did not only enjoy superiority in number, but were armed with a weapon, while the victim
had no means with which to defend himself. Thus, there was obvious physical disparity between the protagonists and
abuse of superior strength attended the killing when the offenders took advantage of their combined strength in order
to consummate the offense." (People of the Phils. vs. Parreno, 433 SCRA 591). In the case at bar, the victim was
rendered helpless when he was assaulted by the three accused. He was restrained and overpowered by the
combined strength and the weapons used by his assailants.
We do not find improbable Borero’s failure to act or shout for help upon witnessing the stabbing of her brother Mauro
Biay. It is an accepted maxim that different people react differently to a given situation or type of situation and there is
no standard form of behavioral response when one is confronted with a strange or startling experience. xxx There is
no standard form of behavior when one is confronted by a shocking incident. The workings of the human mind when
placed under emotional stress are unpredictable. (People of the Philippines vs. Aspuria, 391 SCRA 404)
Accused-appellant Jessie Garcia’s denial of any involvement cannot prevail over Borero’s positive identification. As
ruled by the trial court, allegations that accused Jessie Garcia was somewhere else when the crime was committed is
not enough. He must likewise demonstrate that he could not have been present at the crime scene, or in its vicinity.
He also could have sought the help of his co-worker, employer or anyone in the area to support his defense of alibi.
Indeed, we affirm that accused Jessie Garcia’s allegation that he was elsewhere when the crime was committed is not
substantiated by evidence. Alibi can easily be fabricated. Well-settled is the rule that alibi is an inherently weak
defense which cannot prevail over the positive identification of the accused by the victim. (People of the Phils. vs.
Cadampog, 428 SCRA 336)
Finally, the defense of insanity cannot be given merit when the expert witness herself, Dr. Belen, attested that accused
Arnold Garchitorena was experiencing remission and was even aware of his murder case in court. The trial court had
basis to conclude that during the commission of the crime, Arnold was not totally deprived of reason and freedom of
will. In fact, after the stabbing incident, accused Arnold Garchitorena instructed his co-accused to run away from the
scene. We agree that such action demonstrates that Arnold possessed the intelligence to be aware of his and his co-
accused’s criminal acts. A defendant in a criminal case who interpose the defense of mental incapacity has the burden
of establishing the fact that he was insane at the very moment when the crime was committed. There must be
complete deprivation of reason in the commission of the act, or that the accused acted without discernment, which
must be proven by clear and positive evidence. The mere abnormality of his mental faculties does not preclude
imputability. Indeed, a man may act crazy but it does not necessarily and conclusively prove that he is legally so.
(People of the Philippines vs. Galigao, 395 SCRA 195)
Having found the court a quo’s decision to be supported by the evidence on record, and for being in accord with
prevailing jurisprudence, we find no reason to set it aside.
WHEREFORE, based on the foregoing premises, the instant appeal is DISMISSED. Accordingly, the appealed March
9, 2001 Decision of the Regional Trial Court of Biñan, Laguna, Branch 25, in Criminal Case No. 9440-B finding herein
accused-appellants guilty beyond reasonable doubt of the crime of murder is AFFIRMED in its entirely.
SO ORDERED.
The case was elevated to this Court for automatic review. The People and the accused-appellants opted not to file any
supplemental brief. The respective assignments of errors contained in the briefs that they filed with the CA are set
forth hereunder.
For accused-appellant Pamplona:
I
THE TRIAL COURT ERRED IN GIVING FULL AND TOTAL CREDENCE TO THE TESTIMONY OF PROSECUTION
WITNESS DULCE BORERO
II
THE TRIAL COURT ERRED IN FAILING TO APPRECIATE THE EVIDENCE IN FAVOR OF THE APPELLANT
III
THE TRIAL COURT ERRED IN CONVICTING APPELLANT WHEN HIS GUILT HAS NOT BEEN DULY PROVEN
BEYOND REASONABLE DOUBT
For accused-appellant Garcia:
I
THE TRIAL COURT ERRED IN GIVING UNDUE WEIGHT AND CREDENCE TO THE ALLEGED EYEWITNESS
ACCOUNT GIVEN BY DULCE BORERO, ELDER SISTER OF THE VICTIM AND PROSECUTION WITNESS, IN
RESPECT OF THE PARTICIPATION OF THE HEREIN ACCUSED DESPITE GLARING INCONSISTENCIES,
INHERENT IMPROBABILITIES AND UNRELIABLE DECLARATION ATTENDING THE SAME; AND, ON THE
OTHERHAND, IN DISREGARDING THE COHERENT, CONSISTENT AND CREDIBLE EYEWITNESS ACCOUNT OF
DEFENSE WITNESSES – ALL IN CONTRAVENTION OF THE RULES GOVERNING QUANTUM OF PROOF IN
CRIMINAL CASES AND THE PRESUMPTION OF INNOCENSE EXISTING IN FAVOR OF ACCUSED GARCIA;
II
THE TRIAL COURT ERRED IN COMPLETELY DISREGARDING THE DEFENSE OF ALIBI INTERPOSED BY
ACCUSED-APPELLANT JESSIE GARCIA WHO WAS SOMEWHERE ELSE AT THE TIME AS TO RENDER IT
PHYSICALLY IMPOSSIBLE FOR HIM TO HAVE BEEN AT THE SCENE OF THE CRIME AND EVEN IF THE SAME
IS SUBSTANTIATED BY CLEAR AND CONVINCING EVIDENCE, THAT IS, THE TESTIMONIES OF OITHER
DEFENSE WITNESSES WHO WERE ONE IN SAYING THAT HE WAS NOT PRESENT THEREAT;
III
THE LOWER COURT ERRED IN ENTERING A VERDICT OF CONVICTION FOR JESSIE GARCIA INSTEAD OF
ACQUITTAL WHEN NONE OF THE OTHER ACCUSED, AFTER HAVING ADMITTED THEIR PARTICIPATION IN
THE CRIME, IMPLICATED HIM;
IV
THE LOWER COURT ERRED, IN AWARDING MORAL AND EXEMPLARY DAMAGES IN THE ABSENCE OF
EVIDENCE THEREFOR.
For accused-appellant Garchitorena:
I
THE COURT ERRED IN NOT GIVING WEIGHT AND CREDENCE OVER THE TESTIMONY OF AN EXPERT
WITNESS.
II
THE COURT ERRED IN FINDING ACCUSED ARNOLD GARCHITORENA TO HAVE WILLFULLY EXECUTED THE
ACTS COMPLAINED OF.
Accused-appellant Pamplona capitalized on Dulce Borero’s inaction at the time when she had supposedly witnessed
the slaying of her younger brother. He argued that if she really witnessed the crime, she would have had readily
helped her brother Mauro instead of fleeing. Accused-appellant Garcia anchored his acquittal on his defense of alibi,
while accused-appellant Garchitorena used his alleged mental disorder, specifically, schizophrenia, as a ground to free
himself from criminal liability.
The core issues raised by the both accused-appellants Pamplona and Garcia are factual in nature and delve on the
credibility of the witnesses.
Since the accused-appellants raise factual issues, they must use cogent and convincing arguments to show that the
trial court erred in appreciating the evidence. They, however, have failed to do so.
Accused-appellant Pamplona contends that the trial court’s decision was rendered by a judge other than the one who
conducted trial. Hence, the judge who decided the case failed to observe the demeanor of the witnesses on the stand
so as to gauge their credibility. This argument does not convince the Court for the reason it has consistently
maintained, to wit:
We have ruled in People v. Sadiangabay (G.R. No. 87214, March 30, 1993, 220 SCRA 551), that the circumstance
alone that the judge who wrote the decision had not heard the testimonies of the prosecution witnesses would not taint
his decision. After all, he had the full record before him, including the transcript of stenographic notes which he could
study. The efficacy of a decision is not necessarily impaired by the fact that its writer only took over from a colleague
who had earlier presided at the trial, unless there is a clear showing of a grave abuse of discretion in the factual
findings reached by him.8
A perusal of the trial court’s decision readily shows that it was duly based on the evidence presented during the trial. It
is evident that he thoroughly examined the testimonial and documentary evidence before him and carefully assessed
the credibility of the witnesses. This Court finds no plausible ground to set aside the factual findings of the trial court,
which were sustained by the CA.lavvph!l
The eyewitness Dulce Borero’s testimony clearly established Pamplona and Garcia’s participation and, consequently,
their culpability in the appalling murder of Mauro Biay: 9
"Fiscal Nofuente (To the witness)
Q: Madam witness, do you know Mauro Biay?
A: Yes sir.
xxx
Q: Do you know likewise the cause of his death?
A: Yes sir.
Q: What was the cause of his death?
A: He was repeatedly stabbed sir.
Q: You said that Mauro Biay was repeatedly stabbed, who stabbed Mauro Biay repeatedly?
A: Arnold Gatchitorena, was stabbing repeatedly the victim sir.
Q: Was Arnold Gatchitorena alone when he stabbed Mauro Biay?
A: They were three (3) who were stabbing Mauro Biay, sir.
Q: You said that they were three who were stabbing Mauro Biay, who are the other two?
A: Jessie Garcia and Joey Pamplona sir.
Q: So that when you said three, you are referring to Arnold Gatchitorena, Joey Pamplona and Jessie Garcia?
A: Yes sir.
Q: Now, when [did] this stabbing incident [happen]?
A: On September 22, 1995 sir.
Q: Do you know what was [the] time when this incident happened on September 22, 1995?
A: 9:00 o’clock in the evening sir.
Q: Where [did] this stabbing [happen]?
A: At Sta. Inez, Almeda Subdivision, dela Paz, Biñan, Laguna sir.
Q: Could you tell Madam Witness, where in particular place in Sta. Inez, Almeda Subdivision this stabbing
incident happened?
A: In the street near the artesian well sir.
Q: Do you know where is that street?
A: Sta Inez St., Almeda Subdivision, dela Paz, Biñan, Laguna sir.
Q: You said a while ago that accused Arnold Gatchitorena, Jessie Garcia, Joey Pamplona repeatedly
[stabbed] Mauro Biay, do you know these three accused?
A: Yes sir.
xxx
Q: Will you kindly step down from your seat and tap the three accused that you have pointed to us to be the
persons who stabbed and killed your brother Mauro Biay?
Court: Police Officer Dionisio will you kindly accompany the witness.
P02 Dionisio: Yes sir.
Fiscal: I would like to manifest Your Honor, that the witness was crying when she was pointing to the three
accused, uttering that "Sila ang pumatay sa aking kapatid!".
xxx
Q: What is the name of that person wearing that blue t-shirts?
A: Arnold Gatchitorena sir.
Q: We would like to confirm if he is really Arnold Gatchitorena pointed to by the witness?
Interpreter: The person pointed to by the witness wearing blue t-shirts identified himself as Arnold
Gatchitorena.
Fiscal: Do you know the name of second person whom you tapped on his side wearing white t-shirts?
A: Yes sir.
Q: What is his name?
A: Jessie Garcia sir.
Interpreter: The person pointed to by the witness identified himself as certain Jessie Garcia.
Fiscal: Likewise Madam Witness, do you know the name of a person in longsleeves polo shirts-checkered?
A: Yes sir, Joey Pamplona sir.
Interpreter: The person pointed by the witness identified himself as certain Joey Pamplona.
xxx
Q: How far were you from Mauro Biay when he was being stabbed by the three accused Joey Pamplona,
Jessie Garcia, and Arnold Gatchitorena?
A: Seven (7) arms length sir.
Q: You said that your brother was stabbed successively by the three accused, how did it [happen] Madam
Witness?
A: They called him sir.
Q: Who was called?
A: Mauro Biay sir.
Q: Who called Mauro Biay?
A: It was Jessie who called sir.
Q: When you said Jessie, are you referring to Jessie Garcia, one of the accused in this case?
A: Yes sir.
Q: When Mauro Biay was called by Jessie Garcia, what was [M]auro Biay doing there?
A: Mauro Biay approached sir.
Q: By the way Madam Witness, do you know why Mauro Biay was in that place where the incident happened?
A: Yes sir.
Atty. Pajares: Witness would be incompetent Your Honor.
Court: Witness may answer.
Fiscal: Why was he there?
A: He was selling "balot" sir.
xxx
Fiscal: When Mauro Biay approached Jessie Garcia, what [did] Mauro Biay do, if any?
A: Jessie Garcia twisted the hand of my brother and placed the hand at his back sir.
Q: Who were the companions of Jessie Garcia when he called [M]auro Biay?
A: Joey Pamplona and Jr. Gatchitorena sir.
Q: When you said Jr. Gatchitorena are you referring to Arnold Gatchitorena?
A: Yes sir.
Q: So that when Jessie Garcia called Mauro Biay, he was together with Arnold Gatchitorena and Joey
Pamplona?
A: Yes sir.
Q: If you know Madam Witness, what did Joey Pamplona and Arnold Gatchitorena do after Jessie Garcia
twisted the arm of Mauro Biay on his back?
A: Arnold Gatchitorena repeatedly stabbed [M]auro Biay at his back and also Jessie Garcia also stabbed my
brother sir.
xxx
Q: Were you able to know the weapon used to stab Mauro Biay?
A: It was like a shiny bladed instrument sir.
Q: Now, what was the position of Mauro Biay when being stabbed by the three accused?
A: He was struggling to free himself sir.
Q: You said that he was struggling to free himself, why did you say that he was struggling to free himself?
A: Because I could see sir.
Q: You see what?
A: Because that three were repeatedly stabbing Mauro Biay sir.
Q: Aside from stabbing Mauro Biay, what was Joey Pamplona doing to Mauro Biay, if you can still remember?
A: He was also repeatedly stabbing my brother sir.
Q: Aside from that stabbing, what else if any Joey Pamplona was doing to Mauro Biay?
A: Aside from stabbing Mauro Biay Joey Pamplona was also struggling [strangling] the neck of Mauro Biay sir.
Q: You said that Mauro Biay was stabbed by the three accused successively, was Mauro Biay hit by these
stabbing?
A: Yes sir.
Q: Why do you know that he was hit by stabbing of the three?
A: Because I saw the blood oozing from the part of his body sir.
Q: Now, what happened to Mauro Biay, when he was stabbed and hit by the successive stabbing of the three
accused?
A: The victim Mauro Biay was suddenly slumped face down on the ground sir.
xxx
Q: What did you learn if any when you went to the hospital to see your brother [M]auro Biay?
A: He was already dead sir.
Even under cross-examination, Dulce Borero was unwavering, straightforward, categorical and spontaneous
in her narration of how the killing of her brother Mauro took place. 10 Notably, her testimony as to the
identification of Garchitorena as the one who stabbed Mauro Biay was even corroborated by defense witness
Miguelito Gonzalgo,11 thus:
Q: From the time you saw these two persons near the artesian well, what happened after that, mr. witness?
A: Mauro Biay slumped on the floor and I saw Junior stabbed once more the victim but I am not sure if the
victim was hit at the back, ma’am.
Q: How far were you from the two when you saw the incident, mr. witness?
A: More or less 7 to 8 meters, ma’am.
Q: Were there anything blocking your sight from the place where you were standing to the place of incident,
mr. witness?
A: None, ma’am.
Absent any showing of ill motive on the part of Borero, we sustain the lower court in giving her testimony full faith and
credence. Moreover, the prosecution’s version is supported by the physical evidence. 12 Borero’s testimony that the
victim was successively stabbed several times conforms with the autopsy report that the latter suffered multiple stab
wounds.13
Accused-appellant Pamplona’s argument that there were inconsistencies in the testimony of prosecution witnesses
Borero is not convincing. He specifically points out that in the direct examination of Borero, she stated that it was
Jessie Garcia who twisted the hand of Mauro Biay backwards when the latter approached the former. 14 In the cross-
examination, she stated that it was Joey Pamplona who strangled the victim when the latter approached Jessie
Garcia.
The seeming inconsistencies between her direct testimony and her cross-examination testimonies are not sufficient
ground to disregard them. In People v. Alberto Restoles y Tuyo, Roldan Noel y Molet and Jimmy Alayon y De la
Cruz,15 we ruled that:
…minor inconsistencies do not affect the credibility of witnesses, as they may even tend to strengthen rather than
weaken their credibility. Inconsistencies in the testimony of prosecution witnesses with respect to minor details and
collateral matters do not affect either the substance of their declaration, their veracity, or the weight of their testimony.
Such minor flaws may even enhance the worth of a testimony, for they guard against memorized falsities.
Moreover, such inconsistencies did not contradict the credibility of Borero or her narration of the incident. On the
contrary, they showed that her account was the entire truth. In fact, her narration was in harmony with the account of
defense witness Gonzalgo. We note further that both the Sworn Statement 16 of Borero and her testimony before the
lower court17 were in complete congruence.
Undoubtedly, accused-appellants’ identities as the perpetrators were established by the prosecution. The prosecution
witness was able to observe the entire incident, because she was there. Thus, we find no reason to differ with the trial
court’s appreciation of her testimony. Positive identification, where categorical and consistent, and not attended by any
showing of ill motive on the part of the eyewitnesses on the matter, prevails over alibi and denial. 18
Accused-appellant Garcia’s alibi has no leg to stand on. In People v. Desalisa, 19 this Court ruled that:
…for the defense of alibi to prosper, the accused must prove not only that he was at some other place when the crime
was committed, but also that it was physically impossible for him to be at the scene of the crime or its immediate
vicinity through clear and convincing evidence.
Here, the crime was committed at Binan, Laguna. Although Garcia testified that he was still riding a bus from his work
in Blumentritt and arrived in Binan only at 11:00 P.M. or two hours after the killing incident, still, he failed to prove that it
was physically impossible for him to be at the place of the crime or its immediate vicinity. His alibi must fail.
Accused-appellant Garchitorena’s defense of insanity has also no merit. Unlike other jurisdictions, Philippine courts
have established a more stringent criterion for the acceptance of insanity as an exempting circumstance. 20 As aptly
argued by the Solicitor General, insanity is a defense in the nature of confession and avoidance. As such, it must be
adequately proved, and accused-appellant Garchitorena utterly failed to do so. We agree with both the CA and the trial
court that he was not totally deprived of reason and freedom of will during and after the stabbing incident, as he even
instructed his co-accused-appellants to run away from the scene of the crime.
Accused-appellant Garcia also argues that there was no conspiracy, as "there was no evidence whatsoever that he
aided the other two accused-appellants or that he participated in their criminal designs." 21 We are not persuaded.
In People v. Maldo,22 we stated:
"Conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and
decide to commit it. Direct proof is not essential, for conspiracy may be inferred from the acts of the accused prior to,
during or subsequent to the incident. Such acts must point to a joint purpose, concert of action or community of
interest. Hence, the victim need not be actually hit by each of the conspirators for the act of one of them is deemed
the act of all." (citations omitted, emphasis ours)
In this case, conspiracy was shown because accused-appellants were together in performing the concerted acts in
pursuit of their common objective. Garcia grabbed the victim’s hands and twisted his arms; in turn, Pamplona, together
with Garchitorena, strangled him and straddled him on the ground, then stabbed him. The victim was trying to free
himself from them, but they were too strong. All means through which the victim could escape were blocked by them
until he fell to the ground and expired. The three accused-appellants’ prior act of waiting for the victim outside affirms
the existence of conspiracy, for it speaks of a common design and purpose.
Where there is conspiracy, as here, evidence as to who among the accused rendered the fatal blow is not necessary.
All conspirators are liable as co-principals regardless of the intent and the character of their participation, because the
act of one is the act of all.23
The aggravating circumstance of superior strength should be appreciated against the accused-appellants. Abuse of
superior strength is present whenever there is inequality of forces between the victim and the aggressor, considering
that a situation of superiority of strength is notoriously advantageous for the aggressor and is selected or taken
advantage of by him in the commission of the crime.24 This circumstance was alleged in the Information and was
proved during the trial. In the case at bar, the victim certainly could not defend himself in any way. The accused-
appellants, armed with a deadly weapon, immobilized the victim and stabbed him successively using the same deadly
weapon.
All told, the trial court correctly convicted the accused-appellants of murder, considering the qualifying circumstance of
abuse of superior strength. Since an aggravating circumstance of abuse of superior strength attended the commission
of the crime, each of the accused-appellants should be sentenced to suffer the penalty of death in accordance with
Article 6325 of the Revised Penal Code. Murder, under Article 24826 of the Revised Penal Code, is punishable by
reclusion perpetua to death. Following Article 63 of the same code, the higher penalty of death shall be applied.
In view, however, of the passage of R.A. No. 9346, 27 otherwise known as the Anti-Death Penalty Law, which prohibits
the imposition of the death penalty, reclusion perpetua without eligibility for parole should instead be imposed.
Accordingly, accused-appellants shall be sentenced to reclusion perpetua without eligibility for parole in lieu of the
penalty of death.
While the new law prohibits the imposition of the death penalty, the penalty provided for by law for a heinous offense is
still death and the offense is still heinous.28 Consequently, the civil indemnity for the victim is still ₱75,000.00. In
People v. Quiachon,29 we explained that even if the penalty of death was not to be imposed on appellant because of
the prohibition in Republic Act No. 9346, the civil indemnity of ₱75,000.00 was still proper. Following the ratiocination
in People v. Victor,30 the said award is not dependent on the actual imposition of the death penalty, but on the fact that
qualifying circumstances warranting the imposition of the death penalty attended the commission of the crime.
Hence, we modify the award of civil indemnity by the trial court from ₱50,000.00 to ₱75,000.00. Civil indemnity is
mandatory and granted to the heirs of the victim without need of proof other than the commission of the crime.
Likewise the award of ₱50,000.00 for moral damages is modified and increased to ₱75,000.00, consistent with recent
jurisprudence31 on heinous crimes where the imposable penalty is death, it is reduced to reclusion perpetua pursuant
to R.A. 9346. The award of moral damages does not require allegation and proof of the emotional suffering of the
heirs, since the emotional wounds from the vicious killing of the victim cannot be denied. 32 The trial court’s award of
exemplary damages in the amount of ₱50,000.00 shall, however, be reduced to ₱30,000.00, also pursuant to the
latest jurisprudence on the matter.33
As to the award of actual damages amounting to ₱16,700.00, we modify the same. In People v. Villanueva, 34 this
Court declared that "…when actual damages proven by receipts during the trial amount to less than ₱25,000.00, as in
this case, the award of temperate damages for ₱25,000.00 is justified in lieu of actual damages of a lesser amount." In
the light of such ruling, the victim’s heirs in the present case should, therefore, be awarded temperate damages in the
amount of ₱25,000.00.
The award of ₱408,000.00 for loss of earning capacity is justified. As a rule, documentary evidence should be
presented to substantiate the claim for damages for loss of earning capacity. By way of exception, damages for loss of
earning capacity may be awarded despite the absence of documentary evidence when (1) the deceased is self-
employed and earning less than the minimum wage under current labor laws, in which case judicial notice may be
taken of the fact that in the deceased’s line of work no documentary evidence is available; or (2) the deceased is
employed as a daily wage worker earning less than the minimum wage under current labor laws. 35 It cannot be
disputed that the victim, at the time of his death, was self-employed and earning less than the minimum wage under
current labor laws. The computation arrived at by the trial court was in accordance with the formula for computing the
award for loss of earning capacity. 36 Thus,

Award for lost earnings = 2/3 [80-age at time of death] x [gross annual income – 50% (GAI)]

= 2/3 [80-29] x ₱24,000.00 – ₱12,000.00

= (34) x (₱12,000.00)

= ₱408,000.00

WHEREFORE, the appealed decision of the CA in CA-G.R. CR HC No. 00765, finding the three-accused appellants
guilty beyond reasonable doubt of murder is hereby AFFIRMED WITH the following MODIFICATIONS: (1) the penalty
of death imposed on accused-appellants is REDUCED to RECLUSION PERPETUA without eligibility for parole
pursuant to RA 9346; (2) the monetary awards to be paid jointly and severally by the accused-appellants to the heirs
of the victim are as follows: ₱75,000.00 as civil indemnity, ₱75,000.00 as moral damages, ₱30,000.00 as exemplary
damages, and ₱25,000.00 as temperate damages in lieu of actual damages; (3) ₱408,000.00 for loss of earning
capacity; and (4) interest is imposed on all the damages awarded at the legal rate of 6% from this date until fully
paid.37
No costs. SO ORDERED.
PEOPLE OF THE PHILIPPINES vs. RESTITUTO CARANDANG, HENRY MILAN AND JACKMAN CHUA
G.R. No. 175926 July 6, 2011
LEONARDO-DE CASTRO, J.:
This is an appeal by Henry Milan and Jackman Chua from the Decision 1 of the Court of Appeals in CA-G.R. CR.-H.C.
No. 01934 dated May 10, 2006. Said Decision affirmed that of the Regional Trial Court (RTC) convicting them and one
Restituto Carandang for two counts of murder and one count of frustrated murder in Criminal Cases No. Q-01-100061,
Q-01-100062 and Q-01-100063, the Informations for which read:
Criminal Case No. Q-01-100061
That on or about the 5th day of April 2001, in Quezon City, Philippines, the above-named accused, conspiring
together, confederating with and mutually helping one another, did then and there, willfully, unlawfully and feloniously
with intent to kill, taking advantage of superior strength and with treachery and evident premeditation, attack, assault
and employ personal violence upon the person of PO2 DIONISIO ALONZO Y SALGO, by then and there shooting the
latter several times with the use of a firearm of unknown caliber hitting him on the different parts of the body, thereby
inflicting upon him serious and mortal gunshot wounds which were the direct and immediate cause of his death, to the
damage and prejudice of the immediate heirs of said PO2 DIONISIO ALONZO Y SALGO.
That the crime was committed in contempt of or with insult to the public authorities. 2
Criminal Case No. Q-01-100062
That on or about the 5th day of April, 2001, in Quezon City, Philippines, the above-named accused, conspiring
together, confederating with and mutually helping one another, did then and there, willfully, unlawfully and feloniously
with intent to kill, taking advantage of superior strength and with treachery and evident premeditation, attack, assault
and employ personal violence upon the person of SPO2 WILFREDO RED Y PILAR, by then and there shooting the
latter several times with the use of a firearm of unknown caliber, hitting him on the different parts of the body and as
soon as the said victim fell on the ground, by placing a hand grenade (sic) underneath the body which directly caused
an explosion and mutilated the body which directly caused the death of SPO2 WILFREDO RED Y PILAR, to the
damage and prejudice of the heirs of the victim in such amount as may be awarded to them under the provisions of
the Civil Code.
That the crime was committed in contempt of or with insult to the public authorities. 3
Criminal Case No. Q-01-100063
That on or about the 5th day of April, 2001, in Quezon City, Philippines, the above-named accused, conspiring
together, confederating with and mutually helping one another, with intent to kill with evident premeditation and with
treachery, did then and there willfully, unlawfully and feloniously, assault, attack and employ personal violence upon
the person of SPO1 WILFREDO MONTECALVO Y DALIDA, by then and there shooting the latter with the use of a
firearm of unknown caliber, hitting him on his neck, thereby inflicting upon him serious and mortal injuries, the offender
thus performing all the acts of execution which would have produced the crime of murder as a consequence, but
nevertheless did not produce it by reasons or causes independent of the will of the perpetrators, that is the timely and
able medical assistance rendered to said SPO1 WILFREDO MONTECALVO Y DALIDA, to the damage and prejudice
of the said offended party.
That the crime was committed in contempt of or with insult to the public authorities. 4
On May 15, 2001, accused-appellants Carandang, Milan and Chua pleaded not guilty to the crimes charged.
The prosecution evidence, culled from the testimonies of Senior Police Officer (SPO) 1 Wilfredo Montecalvo, SPO1
Rodolfo Estores, Police Senior Inspector (P/Sr. Insp.) Virgilio Calaro, P/Supt. Manuel Roxas and Dr. Wilson Tan,
yielded the following version of the facts:
In the afternoon of April 5, 2001, the drug enforcement unit of the La Loma Police Station 1 received a request for
assistance from the sister of accused Milan regarding a drug deal that would allegedly take place in her house at
Calavite St., Brgy. Salvacion, Quezon City. The station commander called SPO2 Wilfredo Pilar Red and instructed him
to talk to Milan’s sister, who was in their office. SPO2 Red, accompanied by Police Officer (PO) 2 Dionisio Alonzo,
SPO1 Estores and SPO1 Montecalvo, talked to Milan’s sister. Thereafter, SPO2 Red formed a team composed of the
officers who accompanied him during the interrogation, with him as team leader. The team received further
instructions from the station commander then proceeded to Calavite Street aboard two vehicles, a mobile patrol car
and an unmarked car.5
When the team reached the place at around 4:00 p.m., 6 they alighted from their vehicles and surrounded Milan’s
house. SPO1 Montecalvo’s group went to the left side of the house, while SPO2 Red’s group proceeded to the right.
The two groups eventually met at the back of the house near Milan’s room. The door to Milan’s room was open,
enabling the police officers to see Carandang, Milan and Chua inside. SPO2 Red told the group that the persons
inside the room would not put up a fight, making them confident that nothing violent would erupt. However, when the
group introduced themselves as police officers, Milan immediately shut the door. 7
PO2 Alonzo and SPO2 Red pushed the door open, causing it to fall and propelling them inside the room. PO2 Alonzo
shouted "Walang gagalaw!" Suddenly, gunshots rang, hitting PO2 Alonzo and SPO2 Red who dropped to the floor one
after the other. Due to the suddenness of the attack, PO2 Alonzo and SPO2 Red were not able to return fire and were
instantly killed by the barrage of gunshots. SPO1 Montecalvo, who was right behind SPO2 Red, was still aiming his
firearm at the assailants when Carandang shot and hit him. SPO1 Montecalvo fell to the ground. SPO1 Estores heard
Chua say to Milan, "Sugurin mo na!" Milan lunged towards SPO1 Montecalvo, but the latter was able to fire his gun
and hit Milan. SPO1 Estores went inside the house and pulled SPO1 Montecalvo out. 8
Reinforcements came at around 4:30 p.m. upon the arrival of P/Sr. Insp. Calaro, Chief Operations Officer of the La
Loma Police Station 1, and P/Supt. Roxas, the Deputy Station Commander of Police Station 1 at the time of the
incident.9 SPO1 Montecalvo was brought to the Chinese General Hospital. Milan stepped out of the house and was
also brought to a hospital,10 but Carandang and Chua remained holed up inside the house for several hours. There
was a lengthy negotiation for the surrender of Carandang and Chua, during which they requested for the presence of
a certain Colonel Reyes and media man Ramon Tulfo.11 It was around 11:00 p.m. to 12:00 midnight when Carandang
and Chua surrendered.12 SPO2 Red and PO2 Alonzo were found dead inside the house, their bodies slumped on the
floor with broken legs and gunshot and grenade shrapnel wounds. 13
Dr. Winston Tan, Medico-Legal Officer of the Philippine National Police (PNP) Crime Laboratory, conducted the post-
mortem examination of the bodies of SPO2 Red and PO2 Alonzo. He found that the gunshot wounds of Red and
Alonzo were the cause of their deaths.14
According to SPO1 Montecalvo’s account, Dr. Bu Castro of the Chinese General Hospital operated on him, removing
a bullet from the right portion of his nape. SPO1 Montecalvo’s hospitalization expenses amounted to ₱14,324.48. He
testified that it was a nightmarish experience for him as he feared that he might be paralyzed later on. 15
The defense presented the three accused as witnesses, testifying as follows:
Carandang claims that he had no firearm during the incident, and that it was the police officers who fired all the shots.
He was in Milan’s house during the incident in order to ask Milan to accompany him to convert his cellular phone’s
SIM card. When he arrived at Milan’s place, he found Milan and Chua playing a card game. A short time later, there
was banging on the door. The door of the house was destroyed and gunfire suddenly erupted, prompting him to take
cover under a bed. Chua cried out to him that he was hit and that he might lose blood. Milan ran outside and
sustained injuries as well. There was an explosion near the door, causing burns on Carandang’s left arm. Gunfire
continued coming from different directions for two to three minutes. Suddenly, the place became dark as the lights
went out.16
Since gunshots were still heard every now and then, Carandang stayed in the house and did not come out. Col. Tor,
the new Chief of the Criminal Investigation Division (CID) Sikatuna, negotiated for Carandang to come out. Carandang
requested for the presence of his wife, Col. Doroteo Reyes and media man Ramon Tulfo. He went out of the house at
around midnight when the three arrived.17
Milan testified that he was at home in Calavite St. at the time of the incident. He knew Carandang for seven months.
Chua was their neighbor. While playing a card game inside his room, they heard someone pounding at the door. He
stood and approached the door to check. The door was destroyed, and two unidentified men barged in. Gunshots
erupted. He was hit on the left side of his body. He ran out of the room, leaving Chua and Carandang behind. As he
was doing so, he saw his mother lying down and shouting "Itigil niyo ang putukan; maraming matatanda dito!" Milan
was then hit on his left leg by another gunshot.18
Chua testified that he went to the house of Milan at around noontime of April 4, 2001 to play a card game. They played
inside Milan’s ground floor room. Five to ten minutes later, Carandang arrived and laid down on the bed. Chua did not
pay much attention as Milan and Carandang discussed about cellular phones. Later, they heard a loud banging in the
door as if it was being forced open. Milan stood up to see what was happening. Chua remained seated and
Carandang was still on the bed. The door was forcibly opened. Chua heard successive gunshots and was hit on his
left big toe. He ducked on the floor near the bed to avoid being hit further. He remained in that position for several
hours until he lost consciousness. He was already being treated at the Chinese General Hospital when he regained
consciousness. In said hospital, a paraffin test was conducted upon him. 19
P/Sr. Insp. Grace Eustaquio, Forensic Chemist of the PNP Crime Laboratory, later testified that the paraffin test on
Chua yielded a negative result for gunpowder nitrates, but that performed on Carandang produced a positive result.
She was not able to conduct a paraffin test on Milan, who just came from the operating room when she saw him. Milan
seemed to be in pain and refused to be examined. 20
On April 22, 2003, the trial court rendered its Decision 21 finding Carandang, Milan and Chua guilty of two counts of
murder and one count of frustrated murder:
WHEREFORE, finding the accused RESTITUTO CARANDANG, HENRY MILAN AND JACKMAN CHUA guilty beyond
reasonable doubt of the crime of murder described and penalized under Article 249 of the Revised Penal Code in
relation to Article 63 of the same Code, for the killing of SPO2 Wilfredo Pilar Red and PO2 Dionisio Alonzo qualified by
treachery and acting in conspiracy with each other, they are hereby sentenced to suffer the penalty of reclusion
perpetua for each count of murder and to indemnify the heirs of the victims, jointly and severally, as follows:
To the heirs of SPO2 Wilfredo Red:
1. ₱50,000.00 as civil indemnity;
2. ₱50,000.00 as moral damages;
3. ₱149,734.00 as actual damages; and
4. ₱752,580.00 as compensatory damages
To the heirs of PO2 Dionisio Alonzo:
1. ₱50,000.00 as civil indemnity;
2. ₱50,000.00 as moral damages;
3. ₱139,910.00 as actual damages; and
4. ₱522,960.00 as compensatory damages.
Likewise, finding the accused Restituto Carandang, Henry Milan and Jackman Chua guilty beyond reasonable doubt
of the crime of frustrated murder, described and penalized under Article 249 in relation to Article 6, paragraph 2,
having acted in conspiracy with each other and applying the Indeterminate Sentence Law, they are hereby sentenced
to suffer imprisonment of six (6) years of prision mayor to twelve (12) years and one (1) day of reclusion temporal, and
to indemnify the victim Wilfredo Montecalvo as follows:
1. ₱14,000.00 as actual damages;
2. ₱20,000.00 as moral damages;
3. ₱20,000.00 as reasonable attorney’s fees; and
4. To pay the costs.22
Carandang, Milan and Chua appealed to this Court.23 The appeals were separately docketed as G.R. Nos. 160510-
12.24 Pursuant, however, to the decision of this Court in People v. Mateo, 25 the appeals were transferred26 to the Court
of Appeals, where they were assigned a single docket number, CA-G.R. CR.-H.C. No. 01934.
On May 10, 2006, the Court of Appeals rendered the assailed Decision modifying the Decision of the trial court:
WHEREFORE, premises considered, the Decision of the Regional Trial Court of Quezon City, Branch 76, in Criminal
Case Nos. Q-01-100061-63 finding accused-appellants guilty beyond reasonable doubt of two (2) counts of Murder
and one (1) count of Frustrated Murder is hereby AFFIRMED with MODIFICATIONS as follows:
1) In Criminal Case Nos. Q-01-100061 and Q-01-100062, accused-appellants are hereby ordered to pay the
heirs of PO2 Dionisio S. Alonzo and SPO2 Wilfredo P. Red an indemnity for loss of earning capacity in the
amount of ₱2,140,980.69 and ₱2,269,243.62, respectively; and
2) In Criminal Case No. Q-01-100063, accused-appellants are hereby instead sentenced to suffer an
indeterminate prison term of six (6) years and one (1) day of prision mayor, as minimum, to fourteen (14)
years, eight (8) months and one (1) day of reclusion temporal, as maximum.
With costs against the accused-appellants.27
Milan and Chua appealed to this Court anew.28 Carandang did not appeal, and instead presented a letter informing
this Court that he is no longer interested in pursuing an appeal. 29 On April 9, 2008, Milan and Chua filed a
Supplemental Appellant’s Brief to further discuss the Assignment of Errors they presented in their September 28, 2004
Appellant’s Brief:
I.
The court a quo erred in holding that there was conspiracy among the appellants in the case at bar.
II.
Assuming arguendo that conspiracy exists, the court a quo gravely erred in convicting them of the crime of
murder and frustrated murder instead of homicide and frustrated homicide only, the qualifying circumstance of
treachery not having been duly proven to have attended the commission of the crimes charged. 30
The trial court had ruled that Carandang, Milan and Chua acted in conspiracy in the commission of the crimes
charged. Thus, despite the established fact that it was Carandang who fired the gun which hit SPO2 Red, PO2 Alonzo
and SPO1 Montecalvo, all three accused were held equally criminally responsible therefor. The trial court explained
that Carandang, Milan and Chua’s actuations showed that they acted in concert against the police officers. The
pertinent portion of the RTC Decision reads:
Milan, Carandang and Chua were all inside the room of Milan. Upon arrival of police officers Red, Alonzo and the
others and having identified themselves as police officers, the door was closed and after Alonzo and Red pushed it
open and as Alonzo shouted, "walang gagalaw," immediately shots rang out from inside the room, felling Alonzo, then
Red, then Montecalvo. Chua was heard by Estores to shout to Milan: "Sugurin mo na" (tsn, October 16, 2001, page
8). And as Milan lunged at Montecalvo, the latter shot him.
That the three acted in concert can be gleaned from their actuations. First, when they learned of the presence of the
police officers, they closed the door. Not one of them came out to talk peacefully with the police officers. Instead,
Carandang opened fire, Alonzo and Red did not even have the chance to touch their firearms at that instant. 31
In affirming this ruling, the Court of Appeals further expounded on the acts of Milan and Chua showing that they acted
in concert with Carandang, to wit:
In the present case, when appellants were alerted of the presence of the police officers, Milan immediately closed the
door. Thereafter, when the police officers were finally able to break open said door, Carandang peppered them with
bullets. PO2 Alonzo and SPO2 Red died instantly as a result while SPO1 Montecalvo was mortally wounded. Then,
upon seeing their victims helplessly lying on the floor and seriously wounded, Chua ordered Milan to attack the police
officers. Following the order, Milan rushed towards Montecalvo but the latter, however, was able to shoot him.
At first glance, Milan’s act of closing the door may seem a trivial contribution in the furtherance of the crime. On
second look, however, that act actually facilitated the commission of the crime. The brief moment during which the
police officers were trying to open the door paved the way for the appellants to take strategic positions which gave
them a vantage point in staging their assault. Thus, when SPO2 Red and PO2 Alonzo were finally able to get inside,
they were instantly killed by the sudden barrage of gunfire. In fact, because of the suddenness of the attack, said
police officers were not able to return fire.
Insofar as Chua is concerned, his participation in the conspiracy consisted of lending encouragement and moral
ascendancy to his co-conspirators as evidenced by the fact that he ordered Milan to attack the already fallen police
officers with the obvious intention to finish them off. Moreover, he did not immediately surrender even when he had the
opportunity to do so but instead chose to stay with Carandang inside the room until their arrest. 32
Milan and Chua object to the conclusion that they were in conspiracy with Carandang due to their acts of closing the
door and not peaceably talking to the police officers. According to them, those acts were caused by their being
frightened by the police officers who were allegedly in full battle gear. 33 Milan and Chua further assert that the
fortuitous and unexpected character of the encounter and the rapid turn of events should have ruled out a finding of
conspiracy.34 They claim that the incident happened so fast, giving them no opportunity to stop Carandang. 35
Appellants contest the factual finding that Chua directed Milan to go after SPO1 Montecalvo, alleging that they were
both unarmed and that there was no way for Milan to attack an armed person. What really happened, according to
them, was that Milan ran out of the room for safety and not to attack SPO1 Montecalvo. 36 Milan claims that he was
already injured in the stomach when he ran out, and it was natural for him to seek safety.
Assuming arguendo that Chua uttered "Sugurin mo na!" to Milan, appellants argue that no crime was committed due
to the same as all the victims had already been shot when said words were shouted. 37 Furthermore, it appears to have
been uttered as a result of indiscretion or lack of reflection and did not inherently carry with it inducement or
temptation.38
In the Supplemental Brief, Milan and Chua point out that the assault on the victims was the result of the impulsive act
of Carandang and was not a result of any agreement or a concerted action of all the accused. 39 They claim that when
the shootout ensued, Chua immediately dove down near the bed while Milan ran out of the room out of fear. 40It is
allegedly hard to imagine that SPO1 Montecalvo with certainty heard Chua utter the phrase "Sugurin mo na,"
considering that the incident happened so fast, there were lots of gunshots. 41
To summarize, Milan’s and Chua’s arguments focus on the lack of direct evidence showing that they conspired with
Carandang during the latter’s act of shooting the three victims. However, as we have held in People v.
Sumalpong, 42 conspiracy may also be proven by other means:
Conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and
decide to commit it. Evidence need not establish the actual agreement among the conspirators showing a
preconceived plan or motive for the commission of the crime. Proof of concerted action before, during and after the
crime, which demonstrates their unity of design and objective, is sufficient. When conspiracy is established, the act of
one is the act of all regardless of the degree of participation of each. 43
In the case at bar, the conclusion that Milan and Chua conspired with Carandang was established by their acts (1)
before Carandang shot the victims (Milan’s closing the door when the police officers introduced themselves, allowing
Carandang to wait in ambush), and (2) after the shooting (Chua’s directive to Milan to attack SPO1 Montecalvo and
Milan’s following such instruction). Contrary to the suppositions of appellants, these facts are not meant to prove that
Chua is a principal by inducement, or that Milan’s act of attacking SPO1 Montecalvo was what made him a principal
by direct participation. Instead, these facts are convincing circumstantial evidence of the unity of purpose in the minds
of the three. As co-conspirators, all three are considered principals by direct participation.
Appellants’ attempt to instill doubts in our minds that Chua shouted "sugurin mo na" to Milan, who then ran towards
SPO1 Montecalvo, must fail. SPO1 Estores’s positive testimony 44 on this matter prevails over the plain denials of
Milan and Chua. SPO1 Estores has no reason to lie about the events he witnessed on April 5, 2001. As part of the
team that was attacked on that day, it could even be expected that he is interested in having only the real perpetrators
punished.
Furthermore, we have time and again ruled that factual findings of the trial court, especially those affirmed by the
Court of Appeals, are conclusive on this Court when supported by the evidence on record. 45 It was the trial court that
was able to observe the demeanors of the witnesses, and is consequently in a better position to determine which of
the witnesses are telling the truth. Thus, this Court, as a general rule, would not review the factual findings of the
courts a quo, except in certain instances such as when: (1) the conclusion is grounded on speculations, surmises or
conjectures; (2) the inference is manifestly mistaken, absurd or impossible; (3) there is grave abuse of discretion; (4)
the judgment is based on a misapprehension of facts; (5) the findings of fact are conflicting; (6) there is no citation of
specific evidence on which the factual findings are based; (7) the finding of absence of facts is contradicted by the
presence of evidence on record; (8) the findings of the Court of Appeals are contrary to the findings of the trial court;
(9) the Court of Appeals manifestly overlooked certain relevant and undisputed facts that, if properly considered,
would justify a different conclusion; (10) the findings of the Court of Appeals are beyond the issues of the case; and
(11) such findings are contrary to the admissions of both parties. 46
Neither can the rapid turn of events be considered to negate a finding of conspiracy. Unlike evident premeditation,
there is no requirement for conspiracy to exist that there be a sufficient period of time to elapse to afford full
opportunity for meditation and reflection. Instead, conspiracy arises on the very moment the plotters agree, expressly
or impliedly, to commit the subject felony.47
As held by the trial court and the Court of Appeals, Milan’s act of closing the door facilitated the commission of the
crime, allowing Carandang to wait in ambush. The sudden gunshots when the police officers pushed the door open
illustrate the intention of appellants and Carandang to prevent any chance for the police officers to defend themselves.
Treachery is thus present in the case at bar, as what is decisive for this qualifying circumstance is that the execution of
the attack made it impossible for the victims to defend themselves or to retaliate. 48
The trial court correctly sentenced appellants to suffer the penalty of reclusion perpetua in Criminal Case Nos. Q-01-
100061 and Q-01-100062. The penalty for murder under Article 248 49 of the Revised Penal Code is reclusion perpetua
to death. Applying Article 6350 of the same Code, since there was no other modifying circumstance other than the
qualifying circumstance of treachery, the penalty that should be imposed is reclusion perpetua.
In Criminal Case No. Q-01-100063, the Court of Appeals correctly modified the penalty for the frustrated murder of
SPO1 Montecalvo. Under Article 5051 in connection with Article 61, paragraph 252 of the Revised Penal Code, the
penalty for frustrated murder is one degree lower than reclusion perpetua to death, which is reclusion temporal.
Reclusion temporal has a range of 12 years and 1 day to 20 years. Its medium period, which should be applied in this
case considering that there is no modifying circumstance other than the qualifying circumstance of treachery, is 14
years, 8 months and 1 day to 17 years and 4 months – the range of the maximum term of the indeterminate penalty
under Section 153 of the Indeterminate Sentence Law. The minimum term of the indeterminate penalty should then be
within the range of the penalty next lower to reclusion temporal, and thus may be any term within prision mayor, the
range of which is 6 years and 1 day to 12 years. The modified term of 6 years and 1 day of prision mayor as minimum,
to 14 years, 8 months and 1 day of reclusion temporal as maximum, is within these ranges.
The civil liabilities of appellants should, however, be modified in accordance with current jurisprudence. Thus, in
Criminal Case Nos. Q-01-100061 and Q-01-100062, the award of ₱50,000.00 as civil indemnity for each victim must
be increased to ₱75,000.00.54 In cases of murder and homicide, civil indemnity of ₱75,000.00 and moral damages of
₱50,000.00 are awarded automatically, without need of allegation and proof other than the death of the
victim.55Appellants are furthermore solidarily liable to each victim for ₱30,000.00 as exemplary damages, which is
awarded when the crime was committed with an aggravating circumstance, be it generic or qualifying. 56 However,
since Carandang did not appeal, he is only solidarily liable with Milan and Chua with respect to the amounts awarded
by the Court of Appeals, since the Court of Appeals’ Decision has become final and executory with respect to him. The
additional amounts (₱25,000.00 as civil indemnity and ₱30,000.00 as exemplary damages) shall be borne only by
Milan and Chua, who are hereby held liable therefor solidarily.
In Criminal Case No. Q-01-100063, the solidary liability of Milan and Chua for moral damages to SPO1 Wilfredo
Montecalvo is likewise increased to ₱40,000.00, in accordance with prevailing jurisprudence. 57 An award of
₱20,000.00 as exemplary damages is also warranted.58 The additional amounts (₱20,000.00 as moral damages and
₱20,000.00 as exemplary damages) are likewise to be solidarily borne only by Milan and Chua.
WHEREFORE, the Decision of the Court of Appeals in CA-G.R. CR.-H.C. No. 01934 dated May 10, 2006 is hereby
AFFIRMED, with the following MODIFICATIONS:
1. In Criminal Case Nos. Q-01-100061 and Q-01-100062, appellants Henry Milan and Jackman Chua are held
solidarily liable for the amount of ₱25,000.00 as civil indemnity and ₱30,000.00 as exemplary damages to the
heirs of each of the victims, PO2 Dionisio S. Alonzo and SPO2 Wilfredo P. Red, in addition to the amounts to
which they are solidarily liable with Restituto Carandang as held in CA-G.R. CR.-H.C. No. 01934. Thus, to
summarize the rulings of the lower courts and this Court:
a. The heirs of SPO2 Wilfredo Red are entitled to the following amounts:
i. ₱75,000.00 as civil indemnity, ₱50,000.00 of which shall be solidarily borne by Carandang,
Milan and Chua, while ₱25,000.00 shall be the solidary liability of Milan and Chua only;
ii. ₱50,000.00 as moral damages to be solidarily borne by Carandang, Milan and Chua;
iii. ₱149,734.00 as actual damages to be soldarily borne by Carandang, Milan and Chua;
iv. ₱2,140,980.00 as indemnity for loss of earning capacity to be solidarily borne by
Carandang, Milan and Chua; and
v. ₱30,000.00 as exemplary damages to be solidarily borne by Milan and Chua only;
b. The heirs of PO2 Dionisio Alonzo are entitled to the following amounts:
i. ₱75,000.00 as civil indemnity, ₱50,000.00 of which shall be solidarily borne by Carandang,
Milan and Chua, while ₱25,000.00 shall be the solidary liability of Milan and Chua only;
ii. ₱50,000.00 as moral damages to be solidarily borne by Carandang, Milan and Chua;
iii. ₱139,910.00 as actual damages to be solidarily borne by Carandang, Milan and Chua;
iv. ₱2,269,243.62 as indemnity for loss of earning capacity to be solidarily borne by
Carandang, Milan and Chua;
v. ₱30,000.00 as exemplary damages to be solidarily borne by Milan and Chua only;
2. In Criminal Case No. Q-01-100063, appellants Henry Milan and Jackman Chua are held solidarily liable for
the amount of ₱20,000.00 as moral damages and ₱20,000.00 as exemplary damages to SPO1 Wilfredo
Montecalvo, in addition to the amounts to which they are solidarily liable with Restituto Carandang as held in
CA-G.R. CR.-H.C. No. 01934. Thus, to summarize the rulings of the lower courts and this Court, SPO1
Wilfredo Montecalvo is entitled to the following amounts:
i. ₱14,000.00 as actual damages to be solidarily borne by Carandang, Milan and Chua;
ii. ₱40,000.00 as moral damages, ₱20,000.00 of which shall be solidarily borne by Carandang, Milan
and Chua, while ₱20,000.00 shall be the solidary liability of Milan and Chua only;
iii. ₱20,000.00 as exemplary damages to be solidarily borne by Milan and Chua only; and
iv. ₱20,000.00 as reasonable attorney’s fees, to be solidarily borne by Carandang, Milan and Chua.
3. Appellants are further ordered to pay interest on all damages awarded at the legal rate of Six Percent (6%)
per annum from date of finality of this judgment.1avvphi1
SO ORDERED.
PEOPLE OF THE PHILIPPINES vs. MARCELINO DADAO, ANTONIO SULINDAO, EDDIE MALOGSI (deceased)
and ALFEMIO MALOGSI
G.R. No. 201860 January 22, 2014
LEONARDO-DE CASTRO, J.:
This is an appeal from a Decision1 dated May 16, 2011 of the Court of Appeals in CA-G.R. CR.-H.C. No. 00364,
entitled People of the Philippines v. Marcelino Dadao, Antonio Sulindao, Eddie Malogsi and Alfemio Malogsi, which
affirmed with modifications the Decision2 dated January 31, 2005 of the Regional Trial Court of Manolo Fortich,
Bukidnon, Branch 11 that convicted appellants Marcelino Dadao, Antonio Sulindao, Eddie Malogsi (deceased) and
Alfemio Malogsi for the felony of murder under Article 248 of the Revised Penal Code, as amended, in Criminal Case
No. 93-1272.
The genesis of this court case can be traced to the charge of murder against the appellants in the trial court via an
Information3 dated July 16, 1993. The accusatory portion of said indictment reads:
That on or about the 11th day of July 1993, at 7:30 in the evening more or less at barangay Salucot, municipality of
Talakag, province of Bukidnon, Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, conspiring, confederating and mutually helping with (sic) one another, with intent to kill, by means of
treachery, armed with guns and bolos, did then and there wilfully, unlawfully and criminally attack, assault and sho[o]t
PIONIO YACAPIN, hitting his back and left leg, inflicting wounds that cause[d] his death thereafter.
To the damage and prejudice [of] the heirs of the deceased PIONIO YACAPIN in such sum they are entitled under the
law.
Contrary to and in violation of Article 248 of the Revised Penal Code.
On September 27, 1993, the appellants were arraigned. All four (4) accused pleaded "NOT GUILTY" to the charge
leveled against them.4
The factual backdrop of this case as condensed in the trial court’s assailed January 31, 2005 judgment and adopted
by the Court of Appeals in its similarly assailed May 16, 2011 Decision is reproduced hereunder:
Evidence for the Prosecution
Prosecution’s first witness, Ronie Dacion, a 14-year old stepson of the victim, Pionio Yacapin, testified that on July 11,
1993 at about 7:30 in the evening he saw accused Marcelino Dadao, Antonio Sulindao, Eddie Malogsi and [A]lfemio
Malogsi helping each other and with the use of firearms and bolos, shot to death the victim, Pionio Yacapin in their
house at Barangay Salucot, Talakag, Bukidnon.
The testimony of the second witness for the prosecution, Edgar Dacion, a 12-year old stepson of the victim,
corroborates the testimony of his older brother Ronie Dacion.
Prosecution’s third witness, Nenita Yacapin, the widow of the victim, also corroborates the testimony of the
prosecution’s first and second witness. The said witness further testified that she suffered civil and moral damages
[due to] the death of her husband.
Prosecution’s fourth witness, Bernandino Signawan, testified that at about 10:00 o’clock in the evening of July 11,
1993, Ronie and Edgar Dacion reached to [sic] his house and related to him that their stepfather was killed by
accused Eddie Malogsi, [A]lfemio Malogsi, Marcelino Dadao and Antonio Sulindao. Witness Signawan further testified
that on the following morning, he and the other people in Ticalaan including the barangay captain, Ronie and Edgar
Dacion returned to the house of the victim and found the latter already dead and in the surrounding [area] of the house
were recovered empty shells of firearms.
Prosecution’s fifth witness, SPO2 Nestor Aznar, testified that he was the one who prepared the sketch of the hut
where the incident happened and further testified that the four accused were in the custody of the government and in
the following morning of the incident, he was at the scene of the crime and found in the yard of the hut eight (8)
garand empty shells caliber 30m[m].
The prosecution presented its sixth and last witness, Modesto Libyocan, who testified that on the evening of July 11,
1993, at Barangay Salucot, he saw in the house of the victim, Pionio Yacapin, lights caused by flashlights and heard
several gunshots from the house of the victim, and that the family left their house on that evening and went to Ticalaan
where they learned that Pionio Yacapin was killed in his house and that early the following morning, July 12, 1993, he
was with some companions, barangay officials of Ticalaan in the house of the victim where they found him dead and
sustaining gunshot wounds.
Evidence for the Defense
Defense’s first witness, Police Inspector Vicente Armada, testified that on July 30, 1993, at 11:00 in the morning, he
conducted an examination for paraffin test on all four accused with the findings that they yielded negative result x x x.
The defense presented Eddie Malogsi, one of the accused, as its second witness, who testified that on July 11, 1993
at 7:30 in the evening, he was at the farm of a certain Boyle together with his brother, [A]lfemio Malogsi, one of the
accused herein, being a worker of that farm. He further testified that on the said date and time, he never fired a gun.
Defense’s third witness, [A]lfemio Malogsi, another accused in this case, corroborates the testimony of his brother and
co-accused, Eddie Malogsi, that on the said date and time above-mentioned, he was at the farm of a certain Boyle
with his brother and that they heard several gunshots. He further testified that he never owned a garand rifle.
Another accused, Antonio Sulindao, defense’s fourth witness, testified that on the date and time above-mentioned, he
was at Salucot together with his family and at 7:30 x x x in the evening, he heard some gun shots. He further testified
among others, that he has no grudge x x x with the victim prior to the incident.
The testimony of defense’s fifth witness, Fernandez Saplina, [was to] establish the defense of denial and alibi in so far
as accused Marcelino Dadao, that on the whole evening of July 11, 1993, accused Marcelino Dadao was all the time
at his house in San Fernandez, Salucot, Talacag, Bukidnon, and there was no occasion that said accused went
outside or left his house on the said date and time. The said witness further testified that he visited the accused at the
municipal jail of Talakag, Bukidnon, where he was detained for having been the suspect in the killing of Pionio
Yacapin.
The defense presented its sixth witness, Camilo Dumalig, who corroborates the testimony of Fernandez Saplina to the
effect that accused Marcelino Dadao has been residing at San Fernandez, Salucot, Talakag, Bukidnon at the time of
the incident on July 11, 1993 which place is about 7 kilometers from the place of the incident.
Defense’s seventh witness, Venancio Payonda, father-in-law of accused Antonio Sulindao, testified that the latter was
in his house the whole day of July 11, 1993.
The defense presented as its last witness, accused Marcelino Dadao, who testified that three (3) months prior to July
11, 1993, he had been staying at the house of one Fernandez Saplina at Sitio San Fernandez, Salucot, Talakag,
Bukidnon, which is about 7 kilometers away from the house of the victim. He further testified that on July 11, 1993, he
did not leave the house of Fernandez Saplina until the following morning. 5
After trial was concluded, a guilty verdict was handed down by the trial court finding appellants guilty beyond
reasonable doubt of murdering Pionio Yacapin. The assailed January 31, 2005 Decision disposed of the case in this
manner:
WHEREFORE, premises considered, the Court finds accused, EDDIE MALOGSI, [A]LFEMIO MALOGSI, ANTONIO
SULINDAO and MARCELINO DADAO, guilty beyond reasonable doubt of the crime of Murder, as defined and
penalized under Article 248 of the Revised Penal Code, as amended, the said four accused are hereby sentenced to
suffer the penalty of reclusion perpetua and are ordered to pay the heirs of the victim, the amount of SEVENTY-FIVE
THOUSAND PESOS (₱75,000.00) as moral damages and TWENTY THOUSAND PESOS (₱20,000.00) as exemplary
damages and to pay the cost of the suit. Pursuant to Supreme Court Administrative Circular No. 2-92, dated January
20, 1992, the bailbonds of all four accused are hereby ordered cancelled and the latter are ordered detained, pending
resolution of any Appeal that may be pursued in this case. 6
Appellants elevated their case to the Court of Appeals. During the pendency of the appeal, the appellate court acted
on a Manifestation filed by Rogelio Tampil, bondsman for Eddie Malogsi, who sought the cancellation of the
memorandum of encumbrance that was reflected in his land title (Original Certificate of Title No. P-13825, Entry No.
165683) for the reason that Eddie Malogsi had already died on August 25, 2003. Thus, on February 11, 2008, the
Court of Appeals issued a resolution granting Tampil’s request. 7 Subsequently, after considering the pleadings and
memoranda of the parties, the Court of Appeals issued its May 16, 2011 Decision, the dispositive portion of which
states:
ACCORDINGLY, this appeal is DISMISSED and the Decision appealed from is AFFIRMED with the modification the
₱75,000.00 as civil indemnity and ₱25,000.00 as temperate damages shall be awarded in addition to the moral and
exemplary damages already awarded by the lower court. 8
Hence, appellants, through counsel, seek final recourse with the Court and reiterate the following assignment of errors
from their Appellants’ Brief filed with the Court of Appeals:
I
THE COURT A QUO GRAVELY ERRED IN CONVICTING APPELLANTS OF THE CRIME CHARGED DESPITE
FAILURE OF THE PROSECUTION TO PROVE THEIR GUILT BEYOND REASONABLE DOUBT.
II
THE COURT A QUO GRAVELY ERRED IN NOT CONSIDERING THE EVIDENCE OF THE DEFENSE.
III
THE COURT A QUO GRAVELY ERRED IN APPRECIATING THE QUALIFYING CIRCUMSTANCE OF ABUSE OF
SUPERIOR STRENGTH WHEN THE SAME WAS NOT ALLEGED IN THE INFORMATION. 9
The foregoing arguments were later on amplified by appellants’ Supplemental Brief. 10
Appellants reiterate that their guilt was not proven beyond reasonable doubt because the testimonies of the witnesses
for the prosecution were afflicted with inconsistencies and improbabilities, thus, making them of doubtful veracity.
Furthermore, appellants faulted the trial court for disbelieving their alibis and for disregarding the fact that the paraffin
test which all of them were subjected to produced a negative result. Appellants also underscored the fact that they did
not take flight despite the knowledge that they were made suspects in the murder of Pionio Yacapin. Lastly, appellants
maintain that the qualifying circumstance of abuse of superior strength should not have been appreciated as it was not
alleged in the criminal information filed against them.
The petition is without merit.
In fine, the pivotal issue raised by appellants in questioning the validity of their conviction for the crime of murder is
whether or not the eyewitness testimonies presented by the prosecution, specifically that of the two stepsons (Ronie
and Edgar Dacion) and the widow (Nenita Yacapin) of the deceased victim, Pionio Yacapin, are credible enough to be
worthy of belief.
We have consistently held in jurisprudence that the resolution of such a factual question is best left to the sound
judgment of the trial court and that, absent any misapprehension of facts or grave abuse of discretion, the findings of
the trial court shall not be disturbed. In People v. De la Rosa, 11 we yet again expounded on this principle in this wise:
[T]he issue raised by accused-appellant involves the credibility of [the] witness, which is best addressed by the trial
court, it being in a better position to decide such question, having heard the witness and observed his demeanor,
conduct, and attitude under grueling examination. These are the most significant factors in evaluating the sincerity of
witnesses and in unearthing the truth, especially in the face of conflicting testimonies. Through its observations during
the entire proceedings, the trial court can be expected to determine, with reasonable discretion, whose testimony to
accept and which witness to believe. Verily, findings of the trial court on such matters will not be disturbed on appeal
unless some facts or circumstances of weight have been overlooked, misapprehended or misinterpreted so as to
materially affect the disposition of the case. x x x.
Jurisprudence also tells us that where there is no evidence that the witnesses of the prosecution were actuated by ill
motive, it is presumed that they were not so actuated and their testimony is entitled to full faith and credit. 12 In the case
at bar, no imputation of improper motive on the part of the prosecution witnesses was ever made by appellants.
Furthermore, appellants contend that the prosecution witnesses made inconsistent and improbable statements in
court which supposedly impair their credibility, such as whether or not the stepsons of the victim left for Ticalaan
together to report the incident, whether the accused were still firing at the victim when they left or not, and whether or
not the accused went after the stepsons after shooting the victim. We have reviewed the relevant portions of the
transcripts pointed out by the appellants and have confidently arrived at the conclusion that these are matters
involving minor inconsistencies pertaining to details of immaterial nature that do not tend to diminish the probative
value of the testimonies at issue. We elucidated on this subject in Avelino v. People, 13 to wit:
Given the natural frailties of the human mind and its capacity to assimilate all material details of a given incident, slight
inconsistencies and variances in the declarations of a witness hardly weaken their probative value. It is well-settled
that immaterial and insignificant details do not discredit a testimony on the very material and significant point bearing
on the very act of accused-appellants. As long as the testimonies of the witnesses corroborate one another on
material points, minor inconsistencies therein cannot destroy their credibility. Inconsistencies on minor details do not
undermine the integrity of a prosecution witness. (Emphasis omitted.)
Notwithstanding their conflicting statements on minor details, Ronie, Edgar and Nenita positively identified appellants
as the perpetrators of the dastardly crime of murder committed on the victim which they categorically and consistently
claimed to have personally witnessed.
In order to counter the serious accusation made against them, appellants put forward the defense of alibi which
necessarily fails in the face of positive identification. It is a time-honored principle in jurisprudence that positive
identification prevails over alibi since the latter can easily be fabricated and is inherently unreliable. 14 Hence, it must be
supported by credible corroboration from disinterested witnesses, and if not, is fatal to the accused. 15 An examination
of the record would indicate that Eddie and Alfemio Malogsi were unable to present a corroborating witness to support
their alibi that they were working at a farm owned by a certain Boyle on the date and time of Pionio Yacapin’s murder.
While the witnesses presented by the defense to corroborate the respective alibis of Marcelino Dadao and Antonio
Sulindao consisted of friends and relatives who are hardly the disinterested witnesses that is required by
jurisprudence.
With regard to appellants’ assertion that the negative result of the paraffin tests that were conducted on their persons
should be considered as sufficient ground for acquittal, we can only declare that such a statement is misguided
considering that it has been established in jurisprudence that a paraffin test is not conclusive proof that a person has
not fired a gun.16 It should also be noted that, according to the prosecution, only Eddie and Alfemio Malogsi held
firearms which were used in the fatal shooting of Pionio Yacapin while Marcelino Dadao and Antonio Sulindao
purportedly held bolos. Thus, it does not come as a surprise that the latter two tested negative for powder burns
because they were never accused of having fired any gun. Nevertheless, the evidence on record has established that
all four accused shared a community of criminal design. By their concerted action, it is evident that they conspired with
one another to murder Pionio Yacapin and should each suffer the same criminal liability attached to the
aforementioned criminal act regardless of who fired the weapon which delivered the fatal wounds that ended the life of
the victim.
In People v. Nelmida,17 we elaborated on the principle of criminal conspiracy and its ramifications in this manner:
There is conspiracy when two or more persons come to an agreement concerning the commission of a felony and
then decide to commit it. It arises on the very instant the plotters agree, expressly or impliedly, to commit the felony
and forthwith decide to pursue it. Once established, each and every one of the conspirators is made criminally liable
for the crime actually committed by any one of them. In the absence of any direct proof, the agreement to commit a
crime may be deduced from the mode and manner of the commission of the offense or inferred from acts that point to
a joint purpose and design, concerted action, and community of interest. As such, it does not matter who inflicted the
mortal wound, as each of the actors incurs the same criminal liability, because the act of one is the act of all. (Citation
and emphasis omitted.)
As to appellants’ argument that their act of bravely reporting to the police station to answer the serious charge of
murder against them instead of fleeing militates against a finding of any criminal liability on their part especially in light
of the dubious evidence presented by the prosecution, we can only dismiss this as a hollow line of reasoning
considering that human experience as observed in jurisprudence instructs us that non-flight does not necessarily
connote innocence. Consequently, we have held:
Flight is indicative of guilt, but its converse is not necessarily true. Culprits behave differently and even erratically in
externalizing and manifesting their guilt. Some may escape or flee – a circumstance strongly illustrative of guilt – while
others may remain in the same vicinity so as to create a semblance of regularity, thereby avoiding suspicion from
other members of the community.18
Contrary to appellants’ claim that the aggravating circumstance of abuse of superior strength was used by the trial
court to qualify the act of killing committed by appellants to murder despite it not having been alleged in the criminal
information filed against them, the text of the assailed January 31, 2005 Decision of the trial court clearly shows that,
even though abuse of superior strength was discussed as present in the commission of the crime, it was not
appreciated as either a qualifying or generic aggravating circumstance.
As correctly observed by the Court of Appeals, the lower court appreciated treachery, which was alleged in the
information, as an aggravating circumstance which qualified the offense to murder. This is proper considering that,
even if abuse of superior strength was properly alleged and proven in court, it cannot serve to qualify or aggravate the
felony at issue since it is jurisprudentially settled that when the circumstance of abuse of superior strength concurs
with treachery, the former is absorbed in the latter. 19
Time and again, we have declared 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. 20 Furthermore,
we have also held that the essence of treachery is that the attack is deliberate and without warning, done in a swift
and unexpected manner, affording the hapless, unarmed and unsuspecting victim no chance to resist or escape. 21In
the case at bar, the manner by which Pionio Yacapin was killed carried all the indubitable hallmarks of treachery. We
quote with approval the following discussion of the Court of Appeals on this matter, to wit:
Treachery, which was alleged in the information, was duly proven by the prosecution.1âwphi1 The Court notes, in
particular, the testimony of Nenita Yacapin who declared that when the victim was making a fire in the kitchen, she
heard shots and she saw the barrel of the gun inserted on the bamboo split walling of their house. Exhibit "B", the
anatomical chart certified by the Philippine National Police (PNP) personnel, shows the relative location of the gunshot
wounds sustained by the victim. The chart indicates that the victim was shot from behind. Clearly, the execution of the
attack made it impossible for the victim to defend himself or to retaliate. 22 (Citations omitted.)
After reviewing the penalty of imprisonment imposed by the trial court and affirmed by the Court of Appeals, we
declare that the imposition of the penalty of reclusion perpetua on the appellants is correct and should be upheld.
Article 248 of the Revised Penal Code, as amended by Republic Act No. 7659, provides for the penalty of reclusion
perpetua to death for the felony of murder. There being no aggravating or mitigating circumstance, the proper penalty
is reclusion perpetua pursuant to Article 63, paragraph 2 of the Revised Penal Code. 23
Anent the award of damages, it is jurisprudentially settled that 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. 24
Thus, the award of civil indemnity in the amount of ₱75,000.00 25 is proper. Likewise, the award of temperate damages,
in lieu of actual damages, in the amount of ₱25,000.00 26 is warranted considering that the death of the victim definitely
caused his heirs some expenses for his wake and burial though they were not able to present proof.
However, we must modify the amounts of moral and exemplary damages already awarded in order to conform to
existing jurisprudence. Therefore, the exemplary damages awarded should be increased from ₱20,000.00 to
₱30,000.00.27 Moreover, there being no aggravating circumstance present in this case, the award of moral damages in
the amount of ₱75,000.00 should be decreased to ₱50,000.00. 28 Lastly, the interest rate of 6% per annum is imposed
on all damages awarded from the date of finality of this ruling until fully paid. 29
Finally, we observe that the Court of Appeals did not rule on the effect of the death of Eddie Malogsi during the
pendency of this case. Considering that no final judgment had been rendered against him at the time of his death,
whether or not he was guilty of the crime charged had become irrelevant because even assuming that he did incur
criminal liability and civil liability ex delicto, these were totally extinguished by his death, following Article 89(1) of the
Revised Penal Code and, by analogy, our ruling in People v. Bayotas. 30 Therefore, the present criminal case should be
dismissed with respect only to the deceased Eddie Malogsi.
WHEREFORE, premises considered, the Decision dated May 16, 2011 of the Court of Appeals in CA-G.R. CR.-H.C.
No. 00364 is hereby AFFIRMED with the MODIFICATIONS that:
(1) The amount of exemplary damages to be paid by appellants Marcelino Dadao, Antonio Sulindao and
Alfemio Malogsi is increased from Twenty Thousand Pesos (₱20,000.00) to Thirty Thousand Pesos
(₱30,000.00);
(2) The amount of moral damages to be paid by appellants Marcelino Dadao, Antonio Sulindao and Alfemio
Malogsi is decreased from Seventy-Five Thousand Pesos (₱75,000.00) to Fifty Thousand Pesos
(₱50,000.00);
(3) Appellants Marcelino Dadao, Antonio Sulindao and Alfemio Malogsi are 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; and
(4) Criminal Case No. 93-1272 is DISMISSED with respect to Eddie Malogsi in view of his death during the
pendency of this case.
No pronouncement as to costs.
SO ORDERED.
PEOPLE OF THE PHILIPINES vs. ESTANLY OCTA y BAS
G.R. No. 195196 July 13, 2015
SERENO, CJ:
Before us is a Notice of Appeal1 dated 30 July 2010 from the Court of Appeals (CA) Decision 2 dated 19 July 2010 in
CA-G.R. CR-H.C. No. 03490, affirming the Decision3 dated 15 May 2008 in Criminal Case No. 04-224073 issued by
the Regional Trial Court (RTC) Branch 48, Manila, convicting accused-appellant Estanly Octa y Bas, guilty beyond
reasonable doubt of the crime of kidnapping for ransom.
As culled from the records, the prosecution's version is herein quoted:
In the morning of September 25, 2003, around 6:40 A.M., Johnny Corpuz (Johnny) and Mike Adrian Batuigas (Mike
Adrian) were on board a Honda Civic Car colored silver with Plate No. UPT 697 travelling on Buenos Aires St.,
Sampaloc, Manila when their way was blocked by a Mitsubishi box type Lancer car colored red-orange. The four (4)
armed occupants of the Lancer car alighted. Johnny did not open the door of the Honda Civic car but one of the
armed men fired his pistol at the left window of the civic car, thus compelling Johnny to open the locked door of the
car. The armed men went inside the car and Johnny was ordered to transfer at the back seat at that time. Inside the
car, Johnny was handcuffed, blindfolded and was even boxed. The armed men asked for the names and telephone
numbers of his mother-in-law. The armed men called his mother-in-law giving the information that Johnny was in their
custody and they would just meet each other at a certain place. They travelled for a while and then they stopped and
Johnny was brought to a safehouse.
After Johnny and Mike were kidnapped, the kidnappers communicated with Johnny’s wife Ana Marie Corpuz (Ana
Marie) giving the information that they have intheir custody her husband Johnny and her brother Mike Adrian. Ana
Marie tried to confirm the kidnapping incident by talking to her husband, who confirmed to his wife that he and Mike
Adrian were indeed kidnapped and they were in the custody of their abductors. Ana Marie sought the assistance of the
PACER [Police AntiCrime and Emergency Response] and stayed in a PACER safehouse located at P. Tuazon, Cubao,
Quezon City. During her stay, she had several communications with her husband’s kidnappers. The latter started
demanding the amount of ₱20 million for the release of her husband and her brother but the amount was considerably
reduced up to the time that Ana Marie was able to raise the amount of ₱538,000.00 which was accepted by the
kidnappers.
Finally, on September 30, 2003 at 10PM, the kidnappers set up the manner on how the ransom money would be
delivered. Ana Marie travelled to Quiapo Church, then to Quezon City circle up to SM Fairview and to Robinsons
Fairview. She was made to stop at Red Lips Beer House and go to the nearby Caltex Auto Supply where she would
see a man wearing a red cap and who would ask her "saan yong padala ni boss". She was instructed to deliver the
wrapped bundled ransom money to the man wearing red cap. When she saw the man with red cap, she was asked for
the money. At first, she did not give the money because she wanted to be sure that she was giving the money to the
right man. Using her own cellphone, she called up the man who had been instructing her all along and asked him to
confirm if the man in front of her is the right man to give the ransom money to, saying "kausapin mo muna ito kung
siya ba." The man in the phone and the man in the red cap talked for a while in another dialect which Ana Marie did
not understand. When she asked the man to give back her cellphone to her, he refused and, instead instructed her to
give the money to him. She described the man wearing red cap to be goodlooking, lightly built, in his early 20s, around
5’4" in height and with dimples, which she later identified in court as accused Estanly Octa.
On October 1, 2003, Johnny was released by his captors after the payment of ransom money. He was detained for the
duration of six (6) days. After his release, he removed his blindfold and handcuffs but he could hardly regain his sight
and see things. He flagged down a private pick-up and learned that he was in Camarin, Caloocan City. He asked a
favor that he be driven to Meycauayan, Bulacan where he took a jeepney to Monumento, and from there, he took a
taxi bound home. When he was released, his brother-in-law Mike Adrian was also released. 4
The defense recounted a different set of facts, to wit:
x x x [O]n September 25, 2003, he was still in Daet, Camarines Norte working as a welder in the welding shop of his
uncle Edwin delos Reyes. He went to Daet on the second week of August 2003 and returned to Manila when he was
called by his father sometime in November 2003. In addition to his defense of denial and alibi, he clings to the theory
that he himself was a victim of abduction. He testified that, on December 1, 2003, while crossing the street, his way
was blocked by a van and thereafter, two (2) persons alighted and a gun was poked at him then he was boarded
inside the van. His hands were tied and eyes covered. The incident happened at Susano Road, Camarin, Caloocan
City. He was eventually brought to the PACER Office, Camp Crame, Quezon City. He claims that he was tortured to
admit the charge filed against him. At the PACER’s office, he was presented to a State Prosecutor of the DOJ but he
claimed he was not assisted by counsel. He said that he did not submit himself for medical examination. He
categorically stated that, when he was inquested by a State Prosecutor, he did not tell of the alleged torture that he
suffered because he was afraid.5
On 4 December 2003, accused-appellant was arrested by the operatives of the Police Anti-Crime and Emergency
Response (PACER) on S[u]sano Road, Camarin, Caloocan City, in connection with another kidnap for ransom
incident. He was identified by prosecution witness Ana Marie Corpuz from a police line-up as the person who had
received the ransom money from her.6 Consequently, on 26 February 2004, an Information 7 was filed against accused-
appellant charging him with the crime of kidnapping for ransom as follows:
That on or about 6:40 a.m. of September 25, 2003, in the City of Manila, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring, confederating, and mutually helping one another, did then
and there wilfully, unlawfully, and feloniously kidnap and deprive JOHNNY L.CORPUZ and MIKE ADRIAN BATUIGAS,
a minor, of their liberty and against their will by means of threats and intimation with the use of firearms, and then bring
them through the use of a motor vehicle to a house, wherein they were detained for a period of six (6) days, and that
the abduction of the said victims was for the purpose of extorting Php538,000.00 was actually delivered to the above-
mentioned accused in exchange for the release of the victims.
CONTRARY TO LAW.8
When arraigned on 5 July 2004,accused-appellant, assisted by counsel, pleaded not guilty to the charge. Trial on the
merits then ensued.9
On 15 May 2008, the RTC rendered a Decision,10 the dispositive portion of which is herein quoted:
WHEREFORE, the Court finds accused Estanly Octa y Bas guilty beyond reasonable doubt for the felony charge [sic]
and pursuant to law, he is hereby sentenced to suffer maximum prison term of reclusion perpetua and to pay the
private aggrieved party of the following:
1. The amount of 538,000.00 as actual and compensatory damages;
2. The amount of 100,000.00 as moral damages; and
3. The amount of 50,000.00 as exemplary damages and cost.
In view of the conviction of the accused, the Manila City Jail is ordered to commit his person to the National
Penitentiary immediately without necessary [sic] delay.
SO ORDERED.11
In so ruling, the RTC ruled that prosecution witness Ana Marie Corpuz, wife of victim Johnny Corpuz, steadfastly
testified that she gave the ransom money in the amount of 538,000 to accused-appellant. She did not waiver in
identifying and describing him as good-looking, wearing red cap, light in built, in his early 20’s, 5’4" and with dimples.
The assertion of Ana Marie Corpuz that accused-appellant was sporting dimples was squarely corroborated by the
court’s observation when he took the witness stand.12
The trial court also viewed the act of receiving ransom money as sufficient evidence to establish accused-appellant’s
conspiratorial act in the kidnapping for ransom of the victims in this case. 13
With respect to the defense of denial and alibi, the RTC found them to be inherently weak as opposed to the
straightforward testimony of Corpuz. The claim of accused-appellant that he was abducted did not convince the court
either, inasmuch as it was not supported by evidence, nor was it the subject of an investigation. 14
Upon intermediate appellate review, the CA rendered a Decision 15 promulgated on 19 July 2010, to wit:
WHEREFORE, in view of the foregoing premises, the appeal in this case is DENIED and the assailed decision of the
Regional Trial Court, Branch 48, in Manila in Criminal Case No. 04-224073 finding Estanly Octa y Bas guilty of the
crime of kidnapping for ransom and imposing the penalty of reclusion perpetua and ordered him to pay 538,000.00 as
actual and compensatory damages, 100,000.00 as moral damages and 50,000.00 as exemplary damages and cost, is
hereby AFFIRMED in toto.
SO ORDERED.16
The CA found the positive identification of accused-appellant by prosecution witness Ana Marie Corpuz to be
unwavering and steadfast. It stressed that his positive identification, when categorical, consistent, straightforward, and
without any showing of ill motive on the part of the eyewitness testifying on the matter, would prevail over mere alibi
and denial.17 Such positive identification constituted direct evidence, and not merely circumstantial evidence. 18
Moreover, the CA ruled that accused-appellant had been rightly found to be a co-conspirator in this case. At the time
he received the ransom money, the crime of kidnapping was still continuing, since both victims were still illegally
detained by the kidnappers. Accused-appellant’s act of taking the ransom money was an overt act made in pursuance
or furtherance of the complicity.19
Hence, the instant appeal.20
ISSUES
In seeking a reversal of the decisions of the CA and the RTC, accused-appellant Octa argues that:
1. The trial court gravely erred in convicting him despite the prosecutions’ failure to positively identify him as
the ransom taker;21
2. The trial court gravely erred in finding him to be a conspirator to the crime charged; 22 and
3. The trial court gravely erred in convicting him of the crime charged based on circumstantial evidence. 23
THE COURT’S RULING
We deny accused-appellant’s appeal.
When the credibility of a witness is at
issue, the findings of fact of the trial
court are accorded high respect if
not conclusive effect, more so if
those findings have been affirmed by
the appellate court.
In his Brief, accused-appellant contends that the prosecution failed to prove beyond reasonable doubt that he was the
one who received the ransom money. He primarily argues that prosecution witness Ana Marie Corpuz could not have
positively ascertained the identity of the ransom taker, because the area where the transaction took place was dark,
and the man was wearing a cap. Neither did Corpuz declare in her Sinumpaang Salaysay that the person who
received the ransom money was sporting a dimple, a fact that she mentioned on direct examination. 24 Accused-
appellant further insinuates that the police might have influenced his out-of-court identification in the line-up when they
informed Corpuz that they had apprehended some people who were suspects in other kidnap for ransom cases, and
that information might have conditioned her mind that the ransom taker had already been apprehended. 25
We disagree.
In People v. Basao,26 the Court held that:
[T]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.27
xxxx
[Thus], 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. 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."28
In this case, both the RTC and the CA found Corpuz to be a credible witness who had categorically testified that she
saw the face of the ransom taker, and that he was actually the accused-appellant.
The fact that Corpuz failed to declare in her Sinumpaang Salaysay that the ransom taker was sporting a dimple was
not fatal to her testimony because she was able to positively and categorically identify accused-appellant during the
police line-up and in open court.
Even accused-appellant’s insinuation that Corpuz could have been influenced by the police during the line-up cannot
be given weight in the face of his positive identification as the ransom taker. On this point, we agree with the
observation of the CA that "assuming arguendo that the accused-appellant’s out of court identification was defective,
her subsequent identification in court cured any flaw that may have initially attended it. We emphasize that the
‘inadmissibility of a police line-up identification x x x should not necessarily foreclose the admissibility of an
independent in-court identification.’"29
To hold an accused guilty as a co-
principal by reason of conspiracy, he
must be shown to have performed an
overt act in pursuance or
furtherance of the complicity.
Accused-appellant also claims that he cannot be considered as a conspirator to the kidnapping in the absence of
concrete proof that he actually participated in the execution of the essential elements of the crime by overt acts
indispensable to its accomplishment. His receipt of the ransom money transpired only after the kidnapping had been
consummated and was not an essential element of the crime. 30
We disagree.
On point is our dissertation in People v. Bautista, 31 to wit:
Conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and
decide to commit it.1awp++i1 Where all the accused acted in concert at the time of the commission of the offense, and
it is shown by such acts that they had the same purpose or common design and were united in its execution,
conspiracy is sufficiently established. It must be shown that all participants performed specific acts with such
closeness and coordination as to indicate a common purpose or design to commit the felony.
xxxx
Evidently, to hold an accused guilty as a co-principal by reason of conspiracy, he must be shown to have performed an
overt act in pursuance or furtherance of the complicity. There must be intentional participation in the transaction with a
view to the furtherance of the common design and purpose. x x x.
xxxx
Taking these facts in conjunction with the testimony of Dexter, who testified that accused-appellant was the one who
received the ransom money x x x then the commonality of purpose of the acts of accused-appellant together with the
other accused can no longer be denied. Such acts have the common design or purpose to commit the felony of
kidnapping for ransom.
Thus, accused-appellants’ argument that he is a mere accomplice must fail. He is liable as a principal for being a co-
conspirator in the crime of Kidnapping for Ransom under Art. 267 of the RPC, as amended by R.A. 7659 x x
x.32(Emphasis ours)
Moreover, the CA is correct in its observation that at the time accused-appellant received the ransom money, the crime
of kidnapping was still continuing, since both victims were still being illegally detained by the kidnappers. 33While his
receipt of the ransom money was not a material element of the crime, it was nevertheless part of the grand plan and
was in fact the main reason for kidnapping the victims. 34 Ransom is money, price or consideration paid or demanded
for the redemption of a captured person or persons; or payment that releases from captivity. 35 Without ransom money,
the freedom of the detained victims cannot be achieved. The positive identification of accused-appellant constitutes
direct, and not merely circumstantial, evidence.
Accused-appellant's contention that he was convicted based only on circumstantial evidence deserves scant
consideration. We agree with the conclusion of the CA that "[Corpuz] testified that she gave the ransom money to
accused-appellant, and as the trial court declared, his act of receiving the ransom money is sufficient conspiratorial act
in the commission of the kidnapping for ransom. The positive identification of the accused-appellant then constitutes
direct evidence, and not merely circumstantial evidence." 36
With respect to the penalty imposed, we agree with the imposition by the RTC and the CA on accused-appellant of the
penalty of reclusion perpetua, considering the prohibition on the death penalty. 37 To conform to recent
jurisprudence,38 we hereby modify the exemplary damages awarded by increasing the amount from ₱50,000 to
₱100,000.
WHEREFORE, the appeal is hereby DISMISSED. The assailed Decision of the Court of Appeals in CA-G.R. CR.-HC
No. 03490 is AFFIRMED WITH MODIFICATION. Accused-appellant is hereby sentenced to suffer the penalty of
reclusion perpetua and ordered to pay ₱538,000 as actual damages, ₱100,000 as moral damages, and ₱100,000 as
exemplary damages.
SO ORDERED.
PEOPLE OF THE PHILIPPINES vs. DANILO FELICIANO, JR., JULIUS VICTOR MEDALLA, CHRISTOPHER
SOLIVA, WARREN L. ZINGAPAN, and ROBERT MICHAEL BELTRAN ALVIR
G.R. No. 196735 May 5, 2014
LEONEN, J.:
It is in the hallowed grounds of a university where students, faculty, and research personnel should feel safest. After
all, this is where ideas that could probably solve the sordid realities in this world are peacefully nurtured and debated.
Universities produce hope. They incubate all our youthful dreams.
Yet, there are elements within this academic milieu that trade misplaced concepts of perverse brotherhood for these
hopes. Fraternity rumbles exist because of past impunity. This has resulted in a senseless death whose justice is now
the subject matter of this case. It is rare that these cases are prosecuted. It is even more extraordinary that there are
credible witnesses who present themselves courageously before an able and experienced trial court judge.
This culture of impunity must stop. There is no space in this society for hooliganism disguised as fraternity rumbles.
The perpetrators must stand and suffer the legal consequences of their actions. They must do so for there is an
individual who now lies dead, robbed of his dreams and the dreams of his family. Excruciating grief for them will never
be enough.
It is undisputed that on December 8, 1994, at around 12:30 to 1:00 in the afternoon, seven (7) members of the Sigma
Rho fraternity were eating lunch at the Beach House Canteen, near the Main Library of the University of the
Philippines, Diliman, when they were attacked by several masked men carrying baseball bats and lead pipes. Some of
them sustained injuries that required hospitalization. One of them, Dennis Venturina, died from his injuries.
An information1 for murder, docketed as Criminal Case No. Q95-6113 3, was filed against several members of the
Scintilla Juris fraternity, namely, Danilo Feliciano, Jr., Julius Victor L. Medalla, Warren L. Zingapan, Robert Michael
Beltran Alvir, Christopher L. Soliva, Reynaldo G. Ablanida, Carlo Jolette Fajardo, George Morano, Raymund E. Narag,
Gilbert Merle Magpantay, Benedict Guerrero, and Rodolfo Penalosa, Jr. with the Regional Trial Court of Quezon City,
Branch 219. The information reads:
That on or about the 8th day of December 1994, in Quezon City, Philippines, the above-named accused, wearing
masks and/or other forms of disguise, conspiring, confederating with other persons whose true names, identities and
whereabouts have not as yet been ascertained, and mutually helping one another, with intent to kill, qualified with
treachery, and with evident premeditation, taking advantage of superior strength, armed with baseball bats, lead pipes,
and cutters, did then and there willfully, unlawfully and feloniously attack, assault and employ personal violence upon
the person of DENNIS F. VENTURINA, by then and there hitting him on the head and clubbing him on different parts
of his body thereby inflicting upon him serious and mortal injuries which were the direct and immediate cause of his
death, to the damage and prejudice of the heirs of said DENNIS F. VENTURINA. (Emphasis supplied)
Separate informations were also filed against them for the attempted murder of Sigma Rho fraternity members Cesar
Mangrobang, Jr.,2 Cristobal Gaston, Jr.,3 and Leandro Lachica,4 and the frustrated murder of Sigma Rho fraternity
members Mervin Natalicio5 and Amel Fortes.6 Only 11 of the accused stood trial since one of the accused, Benedict
Guerrero, remained at large.
A trial on the merits ensued.
The facts, according to the prosecution, are as follows:
Leandro Lachica, Amel Fortes, Derinis Venturina, Mervin Natalicio, Cristobal Gaston, Jr., Felix Tumaneng, 7 and Cesar
Magrobang, Jr. are all members of the Sigma Rho Fraternity. On December 8, 1994, at around 12:30 to 1 :00 p.m.,
they were having lunch at Beach House Canteen, located at the back of the Main Library of the University of the
Philippines, Diliman, Quezon City.8 Suddenly, Dennis Venturina shouted, "Brads, brods!" 9
According to Leandro Lachica, Grand Archon of Sigma Rho Fraternity, he looked around when Venturina shouted, and
he saw about ten (10) men charging toward them.10 The men were armed with baseball bats and lead pipes, and their
heads were covered with either handkerchiefs or shirts. 11 Within a few seconds, five (5) of the men started attacking
him, hitting him with their lead pipes.12 During the attack, he recognized one of the attackers as Robert Michael Beltran
Alvir because his mask fell off.13
Lachica tried to parry the blows of.his attackers, suffering scratches and contusions. 14
He was, however, able to run to the nearby College of Education. 15 Just before reaching it, he looked back and saw
Warren Zingapan and Julius Victor L. Medalla holding lead pipes and standing where the commotion was. 16 Both of
them did not have their masks on.17 He was familiar with Alvir, Zingapan, and Medalla because he often saw them in
the College of Social Sciences and Philosophy (CSSP) and Zingapan used to be his friend. 18 The attack lasted about
thirty (30) to forty-five (45) seconds.19
According to Mervin Natalicio, the Vice Grand Archon of Sigma Rho, he looked to his left when Venturina shouted. 20He
saw about fifteen (15) to twenty (20) men, most of who were wearing masks, running toward them. 21 He was stunned,
and he started running.22 He stumbled over the protruding roots of a tree. 23 He got up, but the attackers came after him
and beat him up with lead pipes and baseball bats until he fell down. 24 While he was parrying the blows, he recognized
two (2) of the attackers as Warren Zingapan and Christopher L. Soliva since they were not wearing any masks. 25 After
about thirty (30) seconds, they stopped hitting him. 26
He was lying on his back and when he looked up, he saw another group of four (4) to five (5) men coming toward him,
led by Benedict Guerrero.27 This group also beat him up.28 He did not move until another group of masked men beat
him up for about five (5) to eight (8) seconds.29
When the attacks ceased, he was found lying on the ground. 30 Several bystanders brought him to the U.P. Infirmary
where he stayed for more than a week for the treatment of his wounds and fractures. 31
According to Cesar Mangrobang, Jr., member of Sigma Rho, he also looked back when Venturina shouted and saw a
group of men with baseball bats and lead pipes. Some of them wore pieces of cloth around their heads. 32 He ran when
they attacked, but two (2) men, whose faces were covered with pieces of cloth, blocked his way and hit him with lead
pipes.33 While running and parrying the blows, he recognized them as Gilbert Merle Magpantay and Carlo Jolette
Fajardo because their masks fell off.34 He successfully evaded his attackers and ran to the Main Library. 35 He then
decided that he needed to help his fraternity brothers and turned back toward Beach House. 36 There, he saw
Venturina lying on the ground.37 Danilo Feliciano, Jr. was beating Venturina up with a lead pipe while Raymund E.
Narag was aiming to hit Venturina.38 When they saw him, they went toward his direction. 39 They were about to hit him
when somebody shouted that policemen were coming. Feliciano and Narag then ran away. 40
Cesar Mangrobang, Jr. then saw Amel Fortes. Fortes accompanied him to his car so they could bring Venturina to the
U.P. Infirmary.41 When they brought the car over, other people, presumably bystanders, were already loading
Venturina into another vehicle.42 They followed that vehicle to the U.P. Infirmary where they saw Natalicio. 43 He stayed
at the infirmary until the following morning.44
According to Cristobal Gaston, Jr., member of Sigma Rho, he immediately stood up when he heard someone shout,
"Brods!"45 He saw a group of men charging toward them carrying lead pipes and baseball bats. 46 Most of them had
pieces of cloth covering their faces.47 He was about to run when two (2) of the attackers approached him. 48 One struck
him with a heavy pipe while the other stabbed him with a bladed instrument. 49 He was able to parry most of the blows
from the lead pipe, but he sustained stab wounds on the chest and on his left forearm. 50
He was able to run away.51 When he sensed that no one was chasing him, he looked back to Beach House Canteen
and saw Danilo Feliciano, Jr., Warren Zingapan, and George Morano. 52 He decided to go back to the canteen to help
his fraternity brothers.53 When he arrived, he did not see any of his fraternity brothers but only saw the ones who
attacked them.54 He ended up going to their hang-out instead to meet with his other fraternity brothers. 55 They then
proceeded to the College of Law where the rest of the fraternity was already discussing the incident. 56
According to Amel Fortes, member of Sigma Rho, he also ran when he saw the group of attackers coming toward
them.57 When he looked back, he saw Danilo Feliciano, Jr. hitting Venturina. 58 He was also able to see Warren
Zingapan and George Morano at the scene.59
Leandro Lachica, in the meantime, upon reaching the College of Education, boarded a jeepney to the College of Law
to wait for their other fraternity brothers.60 One of his fraternity brothers, Peter Corvera, told him that he received
information that members of Scintilla Juris were seen in the west wing of the Main Library and were regrouping in SM
North.61 Lachica and his group then set off for SM North to confront Scintilla Juris and identify their attackers. 62
When they arrived in SM North, pillboxes and stones were thrown at them. 63 Lachica saw Robert Michael Beltran Alvir
and Warren Zingapan and a certain Carlo Taparan.64 They had no choice but to get away from the mall and proceed
instead to U.P. where the Sigma Rho Fraternity members held a meeting. 65
On the night of December 8, 1994, the officers of Sigma Rho advised the victims to lodge their complaints with the
National Bureau of Investigation.66 Their counsel, Atty. Frank Chavez, told the U.P. Police that the victims would be
giving their statements before the National Bureau of Investigation, promising to give the U.P. Police copies of their
statements. In the meantime, Venturina was transferred from the U.P. Infirmary to St. Luke's Hospital on December 8,
1994. He died on December 10, 1994.67 On December 11, 1994, an autopsy was conducted on the cadaver of Dennis
Venturina.68 Dr. Rolando Victoria, a medico-legal officer of the National Bureau of Investigation, found that Venturina
had "several contusions located at the back of the upper left arm and hematoma on the back of both hands," 69 "two (2)
lacerated wounds at the back of the head,70 generalized hematoma on the skull,"71 "several fractures on the
head,"72 and "inter-cranial hemorrhage."73 The injuries, according to Dr. Victoria, could have been caused by a hard
blunt object.74 Dr. Victoria concluded that Venturina died of traumatic head injuries. 75
On December 12, 1994, Lachica, Natalicio, Mangrobang, Fortes, and Gaston executed their respective
affidavits76before the National Bureau of Investigation and underwent medico-legal examinations 77 with their
medicolegal officer, Dr. Aurelio Villena. According to Dr. Villena, he found that Mervin Natalicio had "lacerated wounds
on the top of the head, above the left ear, and on the fingers; contused abrasions on both knees; contusion on the left
leg and thigh,"78 all of which could have been caused by any hard, blunt object. These injuries required medical
attendance for a period of ten (10) days to thirty (30) days from the date of infliction. 79
Dr. Villena found on Amel Fortes "lacerated wounds on the head and on the right leg which could have been caused
by a blunt instrument."80 These injuries required hospitalization for a period of ten (10) days to thirty (30) days from
date of infliction.81 He also found on Cesar Mangrobang, Jr. a "healed abrasion on the left forearm which could
possibly be caused by contact with [a] rough hard surface and would require one (1) to nine (9) days of medical
attention."82 He found on Leandro Lachica "contusions on the mid auxiliary left side, left forearm and lacerated wound
on the infra scapular area, left side."83 On Christopher Gaston, Jr. he found "lacerated wounds on the anterior chest,
left side, left forearm; swollen knuckles of both hands; contusions on the mid auxiliary left side, left forearm and
lacerated wound on the infra scapular area, left side." 84
On September 18, 1997, after the prosecution presented its evidence-in-chief, the court granted the demurrer to
evidence filed by Rodolfo Penalosa, Jr. on the ground that he was not identified by the prosecution's witnesses and
that he was not mentioned in any of the documentary evidence of the prosecution. 85
Upon the presentation of their evidence, the defense introduced their own statement of the facts, as follows:
According to Romeo Cabrera,86 a member of the U.P. Police, he was on foot patrol with another member of the U.P.
Police, Oscar Salvador, at the time of the incident. They were near the College of Arts and Sciences (Palma Hall)
when he vaguely heard somebody shouting, "Rumble!" They went to the place where the alleged rumble was
happening and saw injured men being helped by bystanders. They helped an injured person board the service vehicle
of the Beach House Canteen. They asked what his name was, and he replied that he was Mervin Natalicio. When he
asked Natalicio who hit him, the latter was not able to reply but instead told him that his attackers were wearing
masks. Oscar Salvador87 corroborated his testimony.
Benjamin Lato,88 a utility worker of the Beach House Canteen, likewise testified that the identities of the attackers were
unrecognizable because of their masks. He, however, admitted that he did not see the attack; he just saw a man
sprawled on the ground at the time of the incident.
Frisco Capilo,89 a utility worker of U.P. assigned to the Main Library, was buying a cigarette at a vendor located nearby.
From there, he allegedly saw the whole incident. He testified that ten (10) men, wearing either masks of red and black
bonnets or with shirts covering their faces, came from a red car parked nearby. He also saw three (3) men being hit
with lead pipes by the masked men. Two (2) of the men fell after being hit. One of the victims was lifting the other to
help him, but the attackers overtook him. Afterwards, the attackers ran away. He then saw students helping those who
were injured. He likewise helped in carrying one of the injured victims, which he later found out to be Amel Fortes.
A U.P. student and member of the Sigma Alpha Nu Sorority, Eda Panganiban, 90 testified that she and her friends were
in line to order lunch at the Beach House Canteen when a commotion happened. She saw around fifteen (15) to
eighteen (18) masked men attack a group of Sigma Rhoans. She did not see any mask fall off. Her sorority sister and
another U.P. student, Luz Perez,91 corroborated her story that the masked men were unrecognizable because of their
masks. Perez, however, admitted that a member of Scintilla Juris approached her to make a statement.
Another sorority sister, Bathalani Tiamzon,92 testified on substantially the same matters as Panganiban and Perez.
She also stated that she saw a person lying on the ground who was being beaten up by about three (3) to five (5)
masked men. She also stated that some of the men were wearing black masks while some were wearing white t-shirts
as masks. She did not see any mask fall off the faces of the attackers.
According to Feliciana Feliciano,93 accused-appellant Danilo Feliciano, Jr.'s motlier, her son was in Pampanga to visit
his sick grandfather at the time of the incident. She alleged that her son went to Pampanga before lunch that day and
visited the school where she teaches to get their house key from her.
According to Robert Michael Beltran Alvir,94 he had not been feeling well since December 5, 1994. He said that he
could not have possibly been in U.P. on December 8, 1994 since he was absent even from work. He also testified that
he wore glasses and, thus, could not have possibly been the person identified by Leandro Lachica. He also stated that
he was not enrolled in U.P. at the time since he was working to support himself.
According to Julius Victor Medalla,95 he and another classmate, Michael Vibas, were working on a school project on
December 8, 1994. He also claimed that he could not have participated in the rumble as he had an injury affecting his
balance. The injury was caused by an incident in August 1994 when he was struck in the head by an unknown
assailant. His testimony was corroborated by Jose Victor Santos 96 who stated that after lunch that day, Medalla played
darts with him and, afterwards, they went to Jollibee.
Christopher Soliva,97 on the other hand, testified that he was eating lunch with his girlfriend and another friend in
Jollibee, Philcoa, on December 8, 1994. They went back to U.P. before 1:00 p.m. and went straight to their fraternity
hang-out where he was told that there had been a rumble at the Main Library. He also met several Sigma Rhoans
acting suspiciously as they passed by the hang-out. They were also told by their head, Carlo Taparan, not to react to
the Sigma Rhoans and just go home. Anna Cabahug, 98 his girlfriend, corroborated his story.
Warren Zingapan99 also testified that he was not in U.P. at the time of the incident. He claimed to have gone to SM
North to buy a gift for a friend's wedding but ran into a fraternity brother. He also alleged that some Sigma Rhoans
attacked them in SM North that day.
On February 28, 2002, the trial court rendered its decision 100 with the finding that Robert Michael Alvir, Danilo
Feliciano, Jr., Christopher Soliva, Julius Victor Medalla, and Warren Zingapan were guilty beyond reasonable doubt of
murder and attempted murder and were sentenced to, among other penalties, the penalty of reclusion
perpetua.101 The trial court, however, acquitted Reynaldo Ablanida, Carlo Jolette Fajardo, Gilbert Magpantay, George
Morano, and Raymund Narag.102 The case against Benedict Guerrero was ordered archived by the court until his
apprehension.103 The trial court, m evaluating the voluminous evidence at hand, concluded that:
After a judicious evaluation of the matter, the Court is of the considered view that of the ten accused, some were
sufficiently identified and some were not. The Court believes that out of the amorphous images during the
pandemonium, the beleaguered victims were able to espy and identify some of the attackers etching an indelible
impression in their memory. In this regard, the prosecution eyewitnesses were emphatic that they saw the attackers
rush towards them wielding deadly weapons like baseball bats, lead pipes, pieces of wood and bladed ones, and
pounce on their hapless victims, run after them, and being present with one another at the scene of the crime during
the assault. Although each victim had a very strong motive to place his fraternity rivals permanently behind bars, not
one .of them testified against all of them. If the prosecution eyewitnesses, who were all Sigma Rhoans, were simply
bent on convicting Scintilla Juris members for that matter, they could have easily tagged each and every single
accused as a participant in the atrocious and barbaric assault to make sure that no one else would escape conviction.
Instead, each eyewitness named only one or two and some were candid enough to say that they did not see who
delivered the blows against them.104
Because one of the penalties meted out was reclusion perpetua, the case was brought to this court on automatic
appeal. However, due to the amendment of the Rules on Appeal, 105 the case was remanded to the Court of
Appeals.106 In the Court of Appeals, the case had to be re-raffled several Times 107 before it was eventually assigned to
Presiding Justice Andres B. Reyes, Jr. for the writing of the decision.
On December 26, 2010, the Court of Appeals, in a Special First Division of Five, affirmed 108 the decision of the
Regional Trial Court, with three (3) members concurring 109 an one (1) dissenting.110
The decision of the Court of Appeals was then brought to this court for review.
The issue before this court is whether the prosecution was able to prove beyond reasonable doubt that accused-
appellants attacked private complainants and caused the death of Dennis Venturina.
On the basis, however, of the arguments presented to this court by both parties, the issue may be further refined, thus:
1. Whether accused-appellants' constitutional rights were violated when the information against them
contained the aggravating circumstance of the use of masks despite the prosecution presenting witnesses to
prove that the masks fell off; and
2. Whether the Regional Trial Court and the Court of Appeals correctly ruled, on the basis of the evidence, that
accused-appellants were sufficiently identified.
I. An information is sufficient when the accused is fully apprised of the charge against him to enable him to
prepare his defense
It is the argument of appellants that the information filed against them violates their constitutional right to be informed
of the nature and cause of the accusation against them. They argue that the prosecution should not have included the
phrase "wearing masks and/or other forms of disguise" in the information since they were presenting testimonial
evidence that not all the accused were wearing masks or that their masks fell off.
It is enshrined in our Bill of Rights that "[n]o person shall be held to answer for a criminal offense without due process
of law."111 This includes the right of the accused to be presumed innocent until proven guilty and "to be informed of the
nature and accusation against him."112
Upon a finding of probable cause, an information is filed by the prosecutor against the accused, in compliance with the
due process of the law. Rule 110, Section 1, paragraph 1 of the Rules of Criminal Procedure provides that:
A complaint or information is sufficient if it states the name of the accused; the designation of the offense given by the
statute; the acts or omissions complained of as constituting the offense; the name of the offended pary; the
approximate date of the commission of the offense; and the place where the offense was committed.
In People v. Wilson Lab-ea,113 this court has stated that:
The test of sufficiency of Information is whether it enables a person of common understanding to know the charge
against him, and the court to render judgment properly. x x x The purpose is to allow the accused to fully prepare for
his defense, precluding surprises during the trial.114
Contrary to the arguments of the appellants, the inclusion of the phrase "wearing masks and/or other forms of
disguise" in the information does not violate their constitutional rights.
It should be remembered that every aggravating circumstance being alleged must be stated in the information. Failure
to state an aggravating circumstance, even if duly proven at trial, will not be appreciated as such. 115 It was, therefore,
incumbent on the prosecution to state the aggravating circumstance of "wearing masks and/or other forms of disguise"
in the information in order for all the evidence, introduced to that effect, to be admissible by the trial court.
In criminal cases, disguise is an aggravating circumstance because, like nighttime, it allows the accused to remain
anonymous and unidentifiable as he carries out his crimes.
The introduction of the prosecution of testimonial evidence that tends to prove that the accused were masked but the
masks fell off does not prevent them from including disguise as an aggravating circumstance. 116 What is important in
alleging disguise as an aggravating circumstance is that there was a concealment of identity by the accused. The
inclusion of disguise in the information was, therefore, enough to sufficiently apprise the accused that in the
commission of the offense they were being charged with, they tried to conceal their identity.
The introduction of evidence which shows that some of the accused were not wearing masks is also not violative of
their right to be informed of their offenses.
The information charges conspiracy among the accused. Conspiracy presupposes that "the act of one is the act of
all."117 This would mean all the accused had been one in their plan to conceal their identity even if there was evidence
later on to prove that some of them might not have done so.
In any case, the accused were being charged with the crime of murder, frustrated murder, and attempted murder. All
that is needed for the information to be sufficient is that the elements of the crime have been alleged and that there
are sufficient details as to the time, place, and persons involved in the offense.
II. Findings of the trial court, when affirmed by the appellate court, are entitled to great weight and credence
As a general rule, the findings of fact by the trial court, when affirmed by the appellate court, are given great weight
and credence on review. The rationale for this was explained in People v. Daniel Quijada, 118 as follows:
Settled is the rule that the factual findings of the trial court, especially on the credibility of witnesses, are accorded
great weight and respect. For, the trial court has the advantage of observing 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.119
There are, of course, recognized exceptions to this rule. In People v. Leticia Labarias, 120 this court stated that:
It is the policy of this Court to sustain the factual findings of the trial court on the reasonable assumption that it is in a
better position to assess the evidence before it, particularly the testimonies of the witnesses, who reveal much of
themselves by their deportment on the stand. The exception that makes the rule is where such findings arc clearly
arbitrary or erroneous as when they are tainted with bias or hostility or are so lacking in basis as to suggest that they
were reached without the careful study and perceptiveness that should characterize a judicial decision. 121(Emphasis
supplied)
In criminal cases, the exception gains even more importance since the presumption is always in favor of innocence. It
is only upon proof of guilt beyond reasonable doubt that a conviction is sustained.
In this case, a total of eleven (11) witnesses for the prosecution and forty-two (42) witnesses for the defense were put
on the stand from 1995 to 2001. In an eighty-three (83)-page decision, the trial court acquitted six (6) and convicted
five (5) of the accused. On the basis of these numbers alone, it cannot be said that the trial court acted arbitrarily or
that its decision was "so lacking in basis" that it was arrived at without a judicious and exhaustive study of all the
evidence presented.
Inasmuch, however, as the trial court's findings hold great persuasive value, there is also nothing that precludes this
court from coming to its own conclusions based on an independent review of the facts and the evidence on record.
The accused were sufficiently
identified by the witnesses for
the prosecution
The trial court, in weighing all the evidence on hand, found the testimonies of the witnesses for the prosecution to be
credible. In its decision, the trial court stated that:
x x x. Although each victim had a very strong motive to place his fraternity rivals permanently behind bars, not one
testified against all of them. If the prosecution eyewitnesses, who were all Sigma Rhoans, were simply bent on
convicting Scintilla Juris members for that matter, they could have easily tagged each and every accused as a
participant in the atrocious and barbaric assault to make sure no one would escape conviction. Instead, each
eyewitness named only one or two and some were candid enough to say that they did not see who delivered the
blows against them.
Thus, the prosecution witnesses, Ernest Paulo Tan, Dennis Gaio and Darwin Asuncion, testified to have seen it all but
they could not, and did not, disclose any name. Lachica, on the other hand, said that he did not have the opportunity
to see and identify the person who hit him in the back and inflicted a two-inch cut. His forearm was also hit by a lead
pipe but he did not see who did it. Natalicio, one of the other three who were hospitalized, was severely beaten by
three waves of attackers totalling more than 15 but he could only name 3 of them. He added, however, that he would
be able to recognize those he saw if he would see them again. Of them, Mangrobang pointed to at least 5 but he
stressed that he did not see Zingapan, Soliva, Guerrero, Del Rosario, Daraoay, Denoista, and Penalosa during the
onslaught. Gaston could have named any of the accused as the one who repeatedly hit him with a heavy pipe and
stabbed him but he frankly said their faces were covered. Like Natalicio, Fortes was repeatedly beaten by several
groups but did not name any of the accused as one of those who attacked him. The persons he identified were those
leading the pack with one of them as the assailant of Venturina, and the two others who he saw standing while he was
running away. He added that he saw some of the accused during the attack but did not know then their
names.122 (Emphasis supplied)
We agree.
The trial court correctly held that "considering the swiftness of the incident," 123 there would be slight inconsistencies in
their statements. In People v. Adriano Cabrillas, 124 it was previously observed that:
It is perfectly natural for different witnesses testifying on the occurrence of a crime to give varying details as there may
be some details which one witness may notice while the other may not observe or remember. In fact, jurisprudence
even warns against a perfect dovetailing of narration by different witnesses as it could mean that their testimonies
were prefabricated and rehearsed.125 (Emphasis supplied)
According to their testimonies, Lachica was able to identify Alvir, Zingapan, and Medalla; 126
Natalicio was able to identify Medalla, Zingapan, and Soliva; 127 and Fortes was able to identify Feliciano, Medalla, and
Zingapan.128 Their positive identification was due to the fact that they either wore no masks or that their masks fell off.
It would be in line with human experience that a victim or an eyewitness of a crime would endeavor to find ways to
identify the assailant so that in the event that he or she survives, the criminal could be apprehended. It has also been
previously held that:
It is the most natural reaction for victims of criminal violence to strive to see the looks and faces of their assailants and
observe the manner in which the crime was committed. Most often the face of the assailant and body movements
thereof, creates a lasting impression which cannot be easily erased from their memory. 129
In the commotion, it was more than likely that the masked assailants could have lost their masks. It had been testified
by the victims that some of the assailants were wearing masks of either a piece of cloth or a handkerchief and that
Alvir,130 Zingapan,131 Soliva,132 and Feliciano133 had masks on at first but their masks fell off and hung around their
necks.
Equally telling was the testimony of defense witness Frisco Capilo during cross-examination who observed that some
of the attackers were wearing masks and some were not, thus:
Q Mr. Capilo, do you know this Scintilla Juris Fraternity?
A No, sir.
Q During the incident of December 8, 1994, there were a lot of people eating in the Beach House Canteen, and then
running towards different directions, is it not?
A Yes, sir.
Q And some people were wearing masks and some were not?
A Yes, sir.134
While the attack was swift and sudden, the victims would have had the presence of mind to take a look at their
assailants if they were identifiable. Their positive identification, in the absence of evidence to the contrary, must be
upheld to be credible.
It has been argued that the trial court did not give Mangrobang's testimony credence while Gaston's testimony was
found to be "hazy." This argument is unmeritorious.
It should be noted that it was the trial court itself that stated that the acquittal of the Scintilla Juris members identified
by Mangrobang "should not be. misinterpreted to mean that the tt:'.stimony of Mangrobang was an absolute
fabrication."135 The court went on to state that they "were exonerated merely because they were accorded the benefit
of the doubt as their identification by Mangrobang, under tumultuous and chaotic circumstances were [sic] not
corroborated and their alibis, not refuted."136 There was, therefore, no basis to say that Mangrobang was not credible;
it was only that the evidence presented was not strong enough to overcome the presumption of innocence.
Gaston's testimony, on the other hand, was considered "hazy" 137 by the trial court only with regard to his identification
of Zingapan's companion. Gaston testified that he saw Zingapan with Morano, with Zingapan moving and Morano
staying in place. Fortes, however, testified that both Zingapan and Morano were running after him. Lachica also
testified that it was Medalla, not Morano, who was with Zingapan. Because of this confusion, the trial court found that
there was doubt as to who was really beside Zingapan. The uncertainty resulted into an acquittal for Morano. Despite
this, the court still did not" impute doubt in their testimonies that Zingapan was present at the scene.
Be that as it may, the acquittals made by the trial court further prove that its decision was brought about only upon a
thorough examination of the evidence presented: It accepted that there were inconsistencies in the testimonies of the
victims but that these were minor and did not affect their credibility. It ruled that "[s]uch inconsistencies, and even
probabilities, are not unusual 'for there is no person with perfect faculties or senses."' 138
Evidence as part of the res
gestae may be admissible but
have little persuasive value in
this case
According to the testimony of U.P. Police Officer Salvador, 139 when he arrived at the scene, he interviewed the
bystanders who all told him that they could not recognize the attackers since they were all masked. This, it is argued,
could be evidence that could be given as part of the res gestae.
As a general rule, "[a] witness can testify only to the facts he knows of his personal knowledge; that is, which are
derived from his own perception, x x x."140 All other kinds of testimony are hearsay and are inadmissible as evidence.
The Rules of Court, however, provide several exceptions to the general rule, and one of which is when the evidence is
part of res gestae, thus:
Section 42. Part of res gestae. - Statements made by a person while a starting occurrence is taking place or
immediately prior or subsequent thereto with respect to the circumstances thereof, may be given in evidence as part
of 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. 141
In People v. Rodrigo Salafranca,142 this court has previously discussed the admissibility of testimony taken as part of
res gestae, stating that:
A declaration or an utterance is deemed as part of the res gestae and thus admissible in evidence as an exception to
the hearsay rule when the following requisites concur, to wit: (a) the principal act, the res gestae, is a startling
occurrence; (b) the statements are made before the declarant had time to contrive or devise; and (c) the statements
must concern the occurrence in question and its immediately attending circumstances.
xxxx
The term res gestae has been defined as "those circumstances which are the undersigned 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. 143
There is no doubt that a sudden attack on a group peacefully eating lunch on a school campus is a startling
occurrence. Considering that the statements of the bystanders were made immediately after the startling occurrence,
they are, in fact, admissible as evidence given in res gestae.
In People v. Albarido,144 however, this court has stated that "in accord to ordinary human experience:"
x x x persons who witness an event perceive the same from their respective points of reference. Therefore, almost
always, they have different accounts of how it happened. Certainly, we cannot expect the testimony of witnesses to a
crime to be consistent in all aspects because different persons have different impressions and recollections of the
same incident. x x x145 (Emphasis supplied)
The statements made by the bystanders, although admissible, have little persuasive value since the bystanders could
have seen the events transpiring at different vantage points and at different points in time. Even Frisco Capilo, one of
the bystanders at the time of the attack, testified that the attackers had their masks on at first, but later on, some
remained masked and some were unmasked.
When the bystanders' testimonies are weighed against those of the victims who witnessed the entirety of the incident
from beginning to end at close range, the former become merely corroborative of the fact that an attack occurred.
Their account of the incident, therefore, must be given considerably less weight than that of the victims.
The belated identification by
the victims do not detract from
their positive identification of
the appellants
It is argued that the fact that the victims stayed silent about the incident to the U.P. Police or the Quezon City Police
but instead executed affidavits with the National Bureau of Investigation four (4) days after the incident gives doubt as
to the credibility of their testimonies.
U.P. Police Officer Romeo Cabrera146 testified that on their way to the U.P. Infirmary, he interviewed the victims who all
told him they could not recognize the attackers because they were all wearing masks. Meanwhile, Dr.
Mislang147testified to the effect that when she asked Natalicio who attacked them, Natalicio answered that he did not
know because they were masked.
It must be remembered that the parties involved in this case belong to rival fraternities. While this court does not
condone their archaic and oftentimes barbaric traditions, it is conceded that there are certain practices that are unique
to fraternal organizations.
It is quite possible that at this point in time, they knew the identities of their attackers but chose not to disclose it
without first conferring with their other fraternity brothers. This probability is bolstered by the actions of Sigma Rho
after the incident, which showed that they confronted the members of Scintilla Juris in SM North. Because of the
tenuous relationship of rival fraternities, it would not have been prudent for Sigma Rho to retaliate against the wrong
fraternity.
Their act of not disclosing the correct information to the U.P. Police or to Dr. Mislang does not make the police officer
or the doctor's testimonies more credible than that of the victims. It should not be forgotten that the victims actually
witnessed the entire incident, while Officer Salvador, Officer Cabrera, and Dr. Mislang were merely relaying
secondhand information.
The fact that they went to the National Bureau of Investigation four (4) days after the incident also does not affect their
credibility since most of them had been hospitalized from their injuries and needed to recover first.
Since a fraternity moves as one unit, it would be understandable that they decided to wait until all of them were well
enough to go to the National Bureau of Investigation headquarters in order to give their statements.
Seniority is also often the norm in fraternities. It was upon the advice of their senior "brads" and their legal counsel that
they executed their sworn statements before the National Bureau of Investigation four (4) days after the incident.
The decision to report the incident to the National Bureau of Investigation instead of to the U.P. Police was the call of
their legal counsel who might have deemed the National Bureau of Investigation more equipped to handle the
investigation. This does not, however, affect the credibility of the witnesses since they were merely following the legal
advice of their counsel.
Indeed, there is reason to believe that the National Bureau of Investigation is better equipped than the U.P. Police to
handle the investigation of the case. As stated in the U.P. College of Economics website:
The UP Diliman Police (UPDP) is tasked with maintaining campus security. Their station is located in front of the
College of Architecture.
The primary missions of the UPDP are to maintain peace and order, secure and protect lives and property, enforce
basic laws, applicable Quezon City Ordinances, and University Rules and Regulations including policies and
standards; and to perform such other functions relative to the general safety and security of the students, employees,
and residents in the U.P. Diliman Campus. x x x.148 (Emphasis supplied)
It can be seen that the U.P. Police is employed by U.P. primarily for campus security. They are by no means an actual
police force that is equipped to handle a full-blown murder investigation. Fraternity-related violence in U.P. has also
increasingly become more frequent, which might possibly have desensitized the U.P. Police in such a way that would
prevent their objectivity in the conduct of their investigations. The victims' reliance on the National Bureau of
Investigation, therefore, is understandable.
III. Alibi cannot prevail over the positive identification of the victim
It is settled that the defense of alibi cannot prevail over the positive identification of the victim. 149 In People v. Benjamin
Peteluna,150 this court stated that:
It is a time-honored principle that the positive identification of the appellant by a witness destroys the defense of alibi
and denial. Thus:
x x x. It is well-entrenched that alibi and denial are inherently weak and have always been viewed with disfavor by the
courts due to the facility with which they can be concocted. They warrant the least credibility or none at all and cannot
prevail over the positive identification of the appellant by the prosecution witnesses. For alibi to prosper, it is not
enough to prove that appellant was somewhere else when the crime was committed; he must also demonstrate that it
was physically impossible for him to have been at the scene of the crime at the time of its commission. Unless
substantiated by clear and convincing proof, such defense is negative, self-serving, and undeserving of any weight in
law. Denial, like alibi, as an exonerating justification[,] is inherently weak and if uncorroborated regresses to blatant
impotence. Like alibi, it also constitutes self-serving negative evidence which cannot be accorded greater evidentiary
weight than the declaration of credible witnesses who testify on affirmative matters. 151
In this case, the victims were able to positively identify their attackers while the accused-appellants merely offered
alibis and denials as their defense. The credibility of the victims was upheld by both the trial court and the appellate
court while giving little credence to the accused-appellants' alibis. There is, thus, no reason to disturb their findings.
Accused-appellants were
correctly charged with
murder, and there was
treachery in the commission
of the crime
According to the provisions of Article 248 of the Revised Penal Code, the accused-appellants were correctly charged
with murder. Article 248 states:
ART. 248. Murder.-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;
xxxx
It is undisputed that on December 8, 1994, a group of men armed with lead pipes and baseball bats attacked Dennis
Venturina and his companions, which resulted in Venturina's death.
As correctly found by the trial court and the appellate court, the offense committed against Dennis Venturina was
committed by a group that took advantage of its superior strength and with the aid of armed men. The appellate court,
however, incorrectly ruled out the presence of treachery in the commission of the offense.
It has been stated previously by this court that:
[T]reachery 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.152
Similarly, in People v. Leozar Dela Cruz,153 this court stated that:
There is treachery 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. The essence of treachery is that the attack comes without a
warning and in a swift, deliberate, and unexpected manner, affording the hapless, unarmed, and unsuspecting victim
no chance to resist or escape. For treachery to be considered, two elements must concur: (1) the employment of
means of execution that gives the persons attacked no opportunity to defend themselves or retaliate; and (2) the
means of execution were deliberately or consciously adopted. 154 (Emphasis supplied)
The appellate court, in affirming the conviction of the accused-appellants, ruled that contrary to the findings of the trial
court, there was no treachery involved. In particular, they ruled that although the attack was sudden and unexpected,
"[i]t was done in broad daylight with a lot of people who could see them" 155 and that "there was a possibility for the
victims to have fought back or that the people in the canteen could have helped the victims." 156
This reasoning is clearly erroneous. The victims in this case were eating lunch on campus. They were not at a place
where they would be reasonably expected to be on guard for any sudden attack by rival fraternity men.
The victims, who were unarmed, were also attacked with lead pipes and baseball bats. The only way they could parry
the blows was with their arms. In a situation where they were unnamed and outnumbered, it would be impossible for
them to fight back against the attackers. The attack also happened in less than a minute, which would preclude any
possibility of the bystanders being able to help them until after the incident.
The swiftness and the suddenness of the attack gave no opportunity for the victims to retaliate or even to defend
themselves. Treachery, therefore, was present in this case.
The presence of conspiracy
makes all of the accused-
appellants liable for murder
and attempted murder
In the decision of the trial court, all of the accused-appellants were found guilty of the murder of Dennis Venturina and
the attempted murder of Mervin Natalicio, Cesar Mangrobang, Jr. Leandro Lachica, Arnel Fortes, and Cristobal
Gaston, Jr. The appellate court, however, modified their liabilities and found that the accused-appellants were guilty of
attempted murder only against Natalicio and Fortes, and not against Mangrobang, Lachica, and Gaston.
It is the appellate court's reasoning that because Lachica and Mangrobang "were no longer chased by the
attackers,"157 it concluded that accused-appellants "voluntary desisted from pursuing them and from inflicting harm to
them, which shows that they did not have the intent to do more than to make them suffer pain by slightly injuring
them."158 It also pointed out that the wound inflicted on Gaston "was too shallow to have been done with an intent to
kill."159
Thus, it concluded that the accused-appellants would have been guilty only of slight physical injuries.
This is erroneous.
It should be remembered that the trial court found that there was conspiracy among the accused-appellants 160 and the
appellate court sustainedthis finding.161
Conspiracy, once proven, has the effect of attaching liability to all of the accused, regardless of their degree of
participation, thus: Once an express or implied conspiracy is proved, all of the conspirators are liable as co-principals
regardless of the extent and character of their respective active participation in the commission of the crime or crimes
perpetrated in furtherance of the conspiracy because in contemplation of law the act of one is the act of all. The
foregoing rule is anchored on the sound principle that "when two or more persons unite to accomplish a criminal
object, whether through the physical volition of one, or all, proceeding severally or collectively, each individual whose
evil will actively contributes to the wrong-doing is in law responsible for the whole, the same as though performed by
himself alone." Although it is axiomatic that no one is liable for acts other than his own, "when two or more persons
agree or conspire to commit a crime, each is responsible for all the acts of the others, done in furtherance of the
agreement or conspiracy." The imposition of collective liability upon the conspirators is clearly explained in one case
where this Court held that
... it is impossible to graduate the separate liability of each (conspirator) without taking into consideration the close and
inseparable relation of each of them with the criminal act, for the commission of which they all acted by common
agreement ... The crime must therefore in view of the solidarity of the act and intent which existed between the ...
accused, be regarded as the act of the band or party created by them, and they are all equally responsible
Verily, the moment it is established that the malefactors conspired and confederated in the commission of the felony
proved, collective liability of the accused conspirators attaches by reason of the conspiracy, and the court shall not
speculate nor even investigate as to the actual degree of participation of each of the perpetrators present at the scene
of the crime. x x x.162 (Emphasis supplied)
The liabilities of the accused-appellants m this case arose from a single incident wherein the accused-appellants were
armed with baseball bats and lead pipes, all in agreement to do the highest amount of damage possible to the victims.
Some were able to run away and take cover, but the others would fall prey at the hands of their attackers. The intent to
kill was already present at the moment of attack and that intent was shared by all of the accused-appellants alike
when the presence of conspiracy was proven. It is, therefore, immaterial to distinguish between the seriousness of the
injuries suffered by the victims to determine the respective liabilities of their attackers. What is relevant is only as to
whether the death occurs as a result of that intent to kill and whether there are qualifying, aggravating or mitigating
circumstances that can be appreciated.
The appellate court, therefore, erred in finding the accused-appellants guilty only of slight physical injuries. It would be
illogical to presume that despite the swiftness and suddenness of the attack, the attackers intended to kill only
Venturina, Natalicio, and Fortes, and only intended to injure Lachica, Mangrobang, and Gaston. Since the intent to kill
was evident from the moment the accused-appellants took their first swing, all of them were liable for that intent to
kill.1âwphi1
For this reason, the accused-appellants should be liable for the murder of Dennis Venturina and the attempted murder
of Mervin Natalicio, Cesar Mangrobang, Jr., Leandro Lachica, Arnel Fortes, and Cristobal Gaston, Jr.
A Final Note
It is not only the loss of one promising young life; rather, it is also the effect on the five other lives whose once bright
futures are now put in jeopardy because of one senseless act of bravado. There is now more honor for them to accept
their responsibility and serve the consequences of their actions. There is, however, nothing that they can do to bring
back Dennis Venturina or fully compensate for his senseless and painful loss.
This is not the first fraternity-related case to come to this court; neither will it be the last. Perhaps this case and many
cases like it can empower those who have a better view of masculinity: one which valorizes courage, sacrifice and
honor in more life-saving pursuits.
"Giting at dangal" are words of the anthem of the University of the Philippines. It colors the stories of many who
choose to expend their energy in order that our people will have better lives. Fraternity rumbles are an anathema, an
immature and useless expenditure of testosterone. It fosters a culture that retards manhood. It is devoid of "giting at
dangal."
This_ kind of shameful violence must stop.
WHEREFORE, the decision of the Court of Appeals in CA-G.R. CR N). 01158 dated November 26, 2010 is
AFFIRMED insofar as the accused-appellants Danilo Feliciano, Jr., Julius Victor Medalla, Christopher Soliva, Warren
L. Zingapan, and Robert Michael Beltran Alvir are found GUILTY beyond reasonable doubt of Murder in. Criminal
Case No. Q95-61133 with the MODIFICATION that they be fouhd GUILTY beyond reasonable doubt of Attempted
Murder in Criminal Case Nos. Q95-61136, Q95-61135, Q95-61134, Q95-61138, and Q95-61137.
SO ORDERED.
PEOPLE OF THE PHILIPPINES vs. JAVIER MORILLA Y AVELLANO
G.R. No. 189833 February 5, 2014
PEREZ, J.:
Before us is an appeal filed by accused-appellant Javier Morilla y Avellano (Morilla) from the Decision 1 of the Court of
Appeals which affirmed his conviction and that of his co-accused Ronnie Mitra y Tena (Mayor Mitra) by the trial court,
sentencing them2 to suffer the penalty of life imprisonment and to pay a fine of ₱10,000,000.00 each.
The Regional Trial Court Judgment
On 15 October 2001, Morilla, Mayor Mitra, Willie Yang y Yao (Yang) and Ruel Dequilla y Regodan (Dequilla) were
charged in a criminal information as follows:
That on or about October 13, 2001, in Barangay Kiloloran, Municipality of Real, Province of Quezon, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused, one of them an incumbent mayor of the
Municipality of Panukulan, Quezon Province, who all belong to an organized/syndicate crime group as they all help
one another, for purposes of gain in the transport of illegal drugs, and in fact, conspiring and confederating together
and mutually aiding and abetting one another, did then and there wilfully, unlawfully, and feloniously transport by
means of two (2) motor vehicles, namely a Starex van bearing plate number RWT-888 with commemorative plate to
read "Mayor" and a municipal ambulance of Panukulan, Quezon Province, methamphetamine hydrochloride, a
regulated drug which is commonly known as shabu, and with an approximate weight of five hundred three point sixty
eight (503.68) kilos, without authority whatsoever. 3
After trial, the Regional Trial Court of Quezon City4 on 1 August 2007 convicted Morilla and his co-accused Mayor
Mitra, then incumbent Mayor of Panukulan, Quezon, of illegal transport 5 of methamphetamine hydrochloride,
commonly known as shabu, with an approximate weight of five hundred three point sixty eight (503.68) kilos.
However, it absolved Dequilla and Yang due to the prosecution’s failure to present sufficient evidence to convict them
of the offense charged. The dispositive of the decision reads:
WHEREFORE, premises considered, judgment is hereby rendered finding accused Ronnie Mitra y Tena and Javier
Morilla y Avellana GUILTY beyond reasonable doubt of the offense charged. Accordingly, both accused are hereby
sentenced to suffer the penalty of life imprisonment and to pay a fine of ₱10,000,000.00 each. Accused Willie Yang y
Yao and Ruel Dequilla y Regodan are hereby ACQUITTED for failure of the prosecution to prove their guilt beyond
reasonable doubt and are ordered immediately released from custody unless held for some other lawful cause.
The methamphetamine hydrochloride ordered retained by the Court as representative sample which is still in the
custody of the PNP Crime Laboratory is ordered turned over to the Philippine Drug Enforcement Agency for proper
disposition.6
The trial court found valid the search conducted by police officers on the vehicles driven by Mayor Mitra and Morilla,
one with control number 888 and the other an ambulance with plate number SFK-372, as the police officers have
already acquired prior knowledge that the said vehicles were suspected to be used for transportation of dangerous
drugs. During the checkpoint in Real, Quezon, the information turned out to be accurate and indeed, the two accused
had in their motor vehicles more than five hundred kilos of methamphetamine hydrochloride. 7
The trial court dismissed the arguments of Mayor Mitra that he was without any knowledge of the contents of the
sacks and that he was merely requested to transport them to Manila on board his Starex van. He explained that he
only accommodated the request of a certain Ben Tan because the latter bought his fishing boat. It likewise dismissed
the defense of ambulance driver Morilla of lack of knowledge of the illegality of the contents. Morilla insisted that he
thought that he was just transporting wooden tiles and electronic spare parts together with Dequilla. The other
passenger of the ambulance, Yang, in his defense, did not bother to inquire about the contents of the vehicle as he
was merely an accommodated passenger of the ambulance.
The court rejected the defenses presented by Morilla and Mayor Mitra as they were caught in flagrante delicto of
transporting dangerous drugs in two vehicles driven by each of them. Absent any convincing circumstance to
corroborate their explanations, the validity of their apprehension was sustained. 8
The ruling of conspiracy between Mayor Mitra and Morilla was based on the testimonies of the four accused
themselves. It was found by the trial court that the two vehicles, the Starex van driven by Mayor Mitra and the
ambulance van driven by Morilla, left Infanta, Quezon en route to Manila. The Starex van which was ahead of the
ambulance was able to pass the checkpoint set up by the police officers. However, the ambulance driven by Morilla
was stopped by police officers. Through the untinted window, one of the police officers noticed several sacks inside
the van. Upon inquiry of the contents, Morilla replied that the sacks contained narra wooden tiles.
Unconvinced, the police officers requested Morilla to open the rear door of the car for further inspection. When it was
opened, the operatives noticed that white crystalline granules were scattered on the floor, prompting them to request
Morilla to open the sacks. At this moment, Morilla told the police officers that he was with Mayor Mitra in an attempt to
persuade them to let him pass.9 His request was rejected by the police officers and upon inspection, the contents of
the sacks turned out to be sacks of methamphetamine hydrochloride. 10 This discovery prompted the operatives to
chase the Starex van of Mayor Mitra. The police officers were able to overtake the van and Mayor Mitra was asked to
stop. They then inquired if the mayor knew Morilla. On plain view, the operatives noticed that his van was also loaded
with sacks like the ones found in the ambulance. Thus, Mayor Mitra was also requested to open the door of the
vehicle for inspection. At this instance, Mayor Mitra offered to settle the matter but the same was rejected. Upon
examination, the contents of the sacks were likewise found to contain sacks of methamphetamine hydrochloride. 11
The two other accused in this case, Dequilla and Yang, were acquitted by the trial court for failure on the part of the
prosecution to establish their guilt beyond reasonable doubt. The court ruled that Dequilla’s and Yang’s mere presence
inside the vehicle as passengers was inadequate to prove that they were also conspirators of Mayor Mitra and
Morilla.12
The Court of Appeals Decision
On 13 July 2009, the appellate court affirmed the ruling of the trial court. It upheld the finding of conspiracy between
Mayor Mitra and Morilla in their common intent to transport several sacks containing methamphetamine hydrochloride
on board their respective vehicles. The singularity of their intent to illegally transport methamphetamine hydrochloride
was readily shown when Morilla agreed to drive the ambulance van from Infanta, Quezon to Manila together with
Mayor Mitra, who drove the lead vehicle, the Starex van. 13
The appellate court likewise dismissed the argument of lack of knowledge of the illegal contents of the sacks. The
claim that the sacks were loaded with wooden tiles was implausible due to the obvious disparity of texture and
volume.14
Court’s Ruling
We affirm the ruling but modify the penalty imposed.
In his supplemental brief, Morilla raised the issues: (1) whether he may be convicted for conspiracy to commit the
offense charged sans allegation of conspiracy in the Information, and (2) whether the prosecution was able to prove
his culpability as alleged in the Information.15
We dismiss his arguments.
Morilla primarily cites the provision on Sec. 1(b), Rule 115 of the Rules on Criminal Procedure 16 to substantiate his
argument that he should have been informed first of the nature and cause of the accusation against him. He pointed
out that the Information itself failed to state the word conspiracy but instead, the statement "the above-named
accused, one of them an incumbent mayor of the Municipality of Panukulan, Quezon Province, who all belong to an
organized/syndicated crime group as they all help one another, did then and there wilfully, unlawfully and feloniously
transport x x x." He argued that conspiracy was only inferred from the words used in the Information. 17
Even assuming that his assertion is correct, the issue of defect in the information, at this point, is deemed to have
been waived due to Morilla’s failure to assert it as a ground in a motion to quash before entering his plea. 18
Further, it must be noted that accused Morilla participated and presented his defenses to contradict the allegation of
conspiracy before the trial and appellate courts. His failure or neglect to assert a right within a reasonable time
warrants a presumption that the party entitled to assert it either has abandoned it or declined to assert it. 19
The finding of conspiracy by both courts is correct.
A conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and
decide to commit it.20 To determine conspiracy, there must be a common design to commit a felony. 21
Morilla argues that the mere act of driving the ambulance on the date he was apprehended is not sufficient to prove
that he was part of a syndicated group involved in the illegal transportation of dangerous drugs.
This argument is misplaced.
In conspiracy, it need not be shown that the parties actually came together and agreed in express terms to enter into
and pursue a common design. The assent of the minds may be and, from the secrecy of the crime, usually inferred
from proof of facts and circumstances which, taken together, indicate that they are parts of some complete whole. 22In
this case, the totality of the factual circumstances leads to a conclusion that Morilla conspired with Mayor Mitra in a
common desire to transport the dangerous drugs. Both vehicles loaded with several sacks of dangerous drugs, were
on convoy from Quezon to Manila. Mayor Mitra was able to drive through the checkpoint set up by the police
operatives. When it was Morilla’s turn to pass through the checkpoint, he was requested to open the rear door for a
routinary check. Noticing white granules scattered on the floor, the police officers requested Morilla to open the sacks.
If indeed he was not involved in conspiracy with Mayor Mitra, he would not have told the police officers that he was
with the mayor.
His insistence that he was without any knowledge of the contents of the sacks and he just obeyed the instruction of his
immediate superior Mayor Mitra in driving the said vehicle likewise bears no merit.
Here, Morilla and Mayor Mitra were caught in flagrante delicto in the act of transporting the dangerous drugs on board
their vehicles. "Transport" as used under the Dangerous Drugs Act means "to carry or convey from one place to
another."23 It was well established during trial that Morilla was driving the ambulance following the lead of Mayor Mitra,
who was driving a Starex van going to Manila. The very act of transporting methamphetamine hydrochloride is malum
prohibitum since it is punished as an offense under a special law. The fact of transportation of the sacks containing
dangerous drugs need not be accompanied by proof of criminal intent, motive or knowledge. 24
In a similar case of People v. Libnao,25 this Court upheld the conviction for illegal transportation of marijuana of Libnao
and Nunga, who were caught carrying a bag full of marijuana leaves when they were flagged down on board a
passing tricycle at a checkpoint.
However, we modify the penalty imposed by the trial court as affirmed by the Court of Appeals.
Originally, under Section 15 of Republic Act No. 6425, 26 the penalty for illegal transportation of methamphetamine
hydrochloride was imprisonment ranging from six years and one day to twelve years and a fine ranging from six
thousand to twelve thousand pesos. Pursuant to Presidential Decree No. 1683, 27 the penalty was amended to life
imprisonment to death and a fine ranging from twenty to thirty thousand pesos. The penalty was further amended in
Republic Act No. 7659,28 where the penalty was changed to reclusion perpetua to death and a fine ranging from five
hundred thousand pesos to ten million pesos.
From the foregoing, we sustain the imposed penalty of fine of ₱10,000,00.00 to be paid by each of the accused but
amend the penalty to reclusion perpetua following the provisions of Republic Act No. 7659 and the principle of
retroactive application of lighter penalty. Reclusion perpetua entails imprisonment for at least thirty (30) years after
which the convict becomes eligible for pardon. It also carries with it accessory penalties, namely: perpetual special
disqualification, etc. Life imprisonment, on the other hand, does not appear to have any definite extent or duration and
carries no accessory penalties.29
The full particulars are in Ho Wai Pang v. People,30 thus:
As to the penalties imposed by the trial court and as affirmed by the appellate court, we find the same in accord with
law and jurisprudence. It should be recalled that at the time of the commission of the crime on September 6, 1991,
Section 15 of R.A. No. 6425 was already amended by Presidential Decree No. 1683. The decree provided that for
violation of said Section 15, the penalty of life imprisonment to death and a fine ranging from ₱20,000.00 to
₱30,000.00 shall be imposed. Subsequently, however, R.A. No. 7659 further introduced new amendments to Section
15, Article III and Section 20, Article IV of R.A. No. 6425, as amended. Under the new amendments, the penalty
prescribed in Section 15 was changed from "life imprisonment to death and a fine ranging from ₱20,000.00 to
₱30,000.00" to "reclusion perpetua to death and a fine ranging from ₱500,000.00 to ₱10 million." On the other hand,
Section 17 of R.A. No. 7659 amended Section 20, Article IV of R.A. No. 6425 in that the new penalty provided by the
amendatory law shall be applied depending on the quantity of the dangerous drugs involved.
The trial court, in this case, imposed on petitioner the penalty of reclusion perpetua under R.A. No. 7659 rather than
life imprisonment ratiocinating that R.A. No. 7659 could be given retroactive application, it being more favorable to the
petitioner in view of its having a less stricter punishment.1âwphi1
We agree. In People v. Doroja, we held:
"In People v. Martin Simon (G.R. No. 93028, 29 July 1994) this Court ruled (a) that the amendatory law, being more
lenient and favorable to the accused than the original provisions of the Dangerous Drugs Act, should be accorded
retroactive application, x x x."
And, since "reclusion perpetua is a lighter penalty than life imprisonment, and considering the rule that criminal
statutes with a favorable effect to the accused, have, as to him, a retroactive effect," the penalty imposed by the trial
court upon petitioner is proper. Consequently, the Court sustains the penalty of imprisonment, which is reclusion
perpetua, as well as the amount of fine imposed by the trial court upon petitioner, the same being more favorable to
him.31
WHEREFORE, premises considered, the petition is DENIED and the assailed 13 July 2009 Decision of the Court of
Appeals in CA-G.R. CR-H.C. 02967 is AFFIRMED WITH MODIFICATION with respect to the penalty to be imposed as
Reclusion Perpetua instead of Life Imprisonment and payment of fine of ₱10,000,000.00 by each of the accused.
SO ORDERED.
PEOPLE OF THE PHILIPPINES vs. MICHAEL BOKINGO alias "MICHAEL BOKINGCO" and REYNANTE COL
G.R. No. 187536 August 10, 2011
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 judgment 20 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.
PEOPLE OF THE PHILIPPINES vs. ELIZABETH CASTILLO and EVANGELINE PADAYHAG
G.R. No. 132895 March 10, 2004
Before us on automatic review is the Decision1 of the Regional Trial Court of Parañaque, Branch 260, National Capital
Judicial Region, in Criminal Case No. 95-86, finding appellants Elizabeth Castillo ("Castillo") and Evangeline
Padayhag ("Padayhag") guilty of Qualified Kidnapping and Serious Illegal Detention 2 and sentencing them to death.
The Information3 charging Castillo, Padayhag and Imelda Wenceslao with the crime of kidnapping, reads:
That on or about March 1, 1995, in Parañaque, Metro Manila, Philippines, and within the jurisdiction of the
Honorable Court, said accused ELIZABETH CASTILLO and EVANGELINE PADAYHAG, conspiring together,
confederating, and mutually helping one another, did then and there willfully, unlawfully and feloniously kidnap,
carry away, and seriously detain HORACIO CEBRERO IV @ "Rocky", a five years old child (sic), which
kidnapping or serious detention lasted for more than three (3) days thereby depriving him of his liberty, and
which was committed for the purpose of extorting ransom from the parents of the victim, to the damage and
prejudice of the victim himself and his parents.
The said accused IMELDA CASTILLO WENCESLAO, without having participated in the said crime as a
principal, did then and there willfully, unlawfully and feloniously participated (sic) in the execution of the crime
by previous and simultaneous acts by allowing and furnishing the use of her residence where victim Horacio
Cebrero IV was kept knowing him to have been taken by principal accused Elizabeth Castillo and Evangeline
Padayhag without the consent of his parents.
CONTRARY TO LAW.
Upon arraignment on 10 May 1995, both Castillo and Padayhag initially pleaded guilty. However, on 18 May 1995,
Castillo and Padayhag withdrew their plea of guilt. They entered a plea of not guilty on 3 August 1995. Imelda
Wenceslao remains at large.
The prosecution submitted documentary evidence and presented eight witnesses, namely: (1) Horacio Cebrero IV
("Rocky"), the victim; (2) Rosanna Baria, the victim’s "yaya"; (3) Luis Cebrero, the victim’s father; (4) Sandra Cebrero,
the victim’s mother; (5) Staff Sgt. Alejandro Delena of the Philippine National Police ("PNP"); (6) Wivino Demol, a
member of the Armed Forces of the Philippines ("AFP") Intelligence Security Group, army surveillance and search
team; (7) Capt. Raniel Ramiro, also of the AFP Intelligence Security Group; (8) and Staff Sgt. Manual Iglesias of the
PNP.
The defense presented only two witnesses: Castillo and Padayhag themselves.
The Office of the Solicitor General ("OSG") summarized the prosecution’s version of the incident in the appellee’s
brief, as follows:
On March 1, 1995, Rosanna Baria was employed as one of the household helpers of Mr. and Mrs. Luis De
Guzman Cebrero at their residence in Classic Homes, B. F. Parañaque, Metro Manila (p. 26, tsn, August 3,
1995). In the morning of said date, Femie, another housemaid of the Cebreros’ and Baria’s relative, bathed
and dressed up Rocky, the couple’s six year old son and afterwards advised Baria that someone, who was
also a Cebrero househelper, will fetch Rocky (p. 28, supra). At about 8:00 a.m., a tricycle arrived. On board
was a woman, whom Baria pointed to in court and who gave her name as Evangeline Padayhag (p.
26, supra). Baria assisted Rocky to board the tricycle. The tricycle brought Rocky and the woman, whom
Rocky pointed to in court and who gave her name as Evangeline Padayhag (p. 9, tsn, August 3, 1995), to a
nearby "Mcdonald’s". Thereat, they were joined by another woman (p. 13, supra) whom Rocky pointed to in
court and who gave her name as Elizabeth Castillo (p. 9, supra). The three proceeded to a house far from the
"Mcdonald’s" (p. 13, supra) where Rocky slept "four times" (p. 14, supra).
At about 5:30 p.m. of March 1, 1995, Luis Cebrero arrived home from work. When his son DJ arrived, he
informed his father that Rocky did not attend school. Luis Cebrero asked Baria (pp. 4-5, tsn, August 22, 1995)
who told him that Rocky was fetched at home by a woman to attend a birthday party (p. 5, supra). Informed
thereof, Mr. Cebrero then called up his friends and went to the police station to report that his son was missing
(p. 9, supra).
At about 7:30 p.m. that night, Luis Cebrero received a telephone call from a woman saying, "Ibigay mo sa akin
ang ATM card mo o ang bata" (p. 10, supra). Luis replied, "Kailangan ko ang bata". The woman asked how
much money was in his ATM and Luis replied P40,000.00. Luis then requested to talk to his son but the
woman said, "Hindi puwede, malayo dito ang anak mo at tatawag na lang uli ako" (p. 10, supra).
Luis Cebrero decided to connect a tape recorder to his phone. On March 2, 1995, at about 7:20 p.m., his
phone rang. The caller was a woman telling him, "Bigyan mo ako nang isang million", to which he replied,
"Hindi ko kayang ibigay ang isang million". The caller told Luis that she will call back later on (pp. 11-
12, supra).
The Cebreros informed the authorities that two of their maids were hired from an agency, the General
Services, Inc. at Parañaque. Major Ordoyo of the Intelligence Security Group, Philippine Army (PA) sent
Sergeants Rempillo and Iglesias to the agency to verify this. The two were furnished by General Services, Inc.
with the personal data of the maids named Elizabeth Castillo and Jasmine Nuñez (pp. 13-14, tsn, March 12,
1996).
When the caller did not contact Luis Cebrero the following day, March 3, 1995, he instructed his wife to raise
some money. From the bank, Mrs. Cebrero withdrew P800,000.00 in P1,000.00 denomination. The bank
provided Mrs. Cebrero a list containing the serial numbers of the money withdrawn (pp. 15-16, supra).
On March 4, 1995, at about 9:30 p.m., Luis Cebrero received a telephone call. The caller was a woman who
asked, "Ano nasa iyo na ba ang pera"? Luis answered, "Hindi ko kayang ibigay sa iyo ang halagang iyon,
kalahati lang ang kaya kong ibigay". The caller said, "Sige, puede na yan (p. 17, supra) and instructed Luis
Cebrero to be in Paco, Obando, Bulacan, alone, at about 2:00 a.m.; that at Paco, Obando, Bulacan, is a
"Farmacia Dilag" and beside it is a street which Luis must follow until he reaches the church called
"Sabadista" where he should drop the money (p. 18, supra). Luis Cebrero received another call on that same
night instructing him to stop in front of the Farmacia Dilag and walk on the street beside it going to a chapel
and to drop the money on the chapel’s terrace (p. 19, supra).
Informed of the place for the pay-off, on March 4, 1995, Major Ronnie Eleazar, Commanding Officer of the
Intelligence Security Group (ISG), Philippine Army, briefed his men on Rocky’s kidnapping and assigned them
their respective tasks in the stakeout they will undertake around the pay-off area (pp. 6-7 tsn, January 30,
1996). At about 11:00 p.m. of March 4, 1995, Sgt. Alejandro Delena and his ISG team, proceeded to Obando,
Bulacan for the stakeout. After positioning themselves near the stakeout site, a car arrived and stopped in
front of the chapel. The man alighted and placed a bag in front of the chapel and immediately left (p.
10, supra). After about forty (40) minutes, two women appeared, proceeded to where the bag was dropped.
On seeing the bag, the women laughed and left. After about two (2) minutes, the two women returned, picked
up the bag and immediately left (pp. 11-12, supra). The ISG team searched the area around the drop-off place
but the two women were nowhere to be found (p. 17, supra). In court, Sgt. Delena pointed to and identified
Castillo and Padayhag as the two women he saw in front of the chapel in Obando, Bulacan and who, later on,
picked up the bag dropped by Luis Cebrero (p. 12, supra).
Puzzled by the sudden disappearance of the two women, Sgt. Delena and his team remained at the stake-out
area. The team befriended the residents of the place, one of whom was a certain Joselito Torres who claimed
to be the former boyfriend of Elizabeth Castillo whom he recognized from the picture shown to him by Sgt.
Delena. Torres informed the ISG team that Castillo had already left for Mindanao. Sgt. Delena immediately
communicated the information, including the address of Gigi Padayhag in Navotas, to his commanding officer
(p. 19, supra).
At about 9:00 p.m. of March 5, 1995, Luis Cebrero was at home when a tricycle stopped in front of his house.
Somebody knocked at the door and when Luis Cebrero opened it, he saw his son, Rocky (pp. 23-24, tsn,
August 22, 1995).
On March 12, 1995, an ISG team headed by Sgt. Manuel Iglesias was dispatched to Navotas to locate "Gigi"
Padayhag at the address furnished by Sgt. Delena. The team found Padayhag who upon being apprised of
the kidnapping of Rocky Cebrero, voluntarily went with the ISG team to Camp Crame to clear her name (p. 14,
tsn, May 22, 1996).
Upon the instruction of the ISG, Sgts. Delena and Demo were ordered to proceed to Dipolog City to look for
Castillo (pp. 20-21, tsn, January 30, 1996). Sgt. Delena arrived in Dipolog City on March 13, 1996. He was
briefed and shown the area where Castillo could be found (p. 23, supra).
When Sgt. Demol arrived in Dipolog City, he and Sgt. Delena coordinated with the PNP stationed at Barangay
Tulong, Rizal, Zamboanga del Norte (p. 41, tsn, March 12, 1996). Thereat, Sgt. Demol requested for the
assistance of persons from Barangay Mitimos, where Castillo was believed to be hiding. The PNP assigned
them two barangay officials of Mitimos who, when shown the picture of Castillo, said that the woman in the
picture is in Barangay Mitimos (p. 46, supra).
Upon the request of the police, the two barangay officials conducted a daily surveillance on Castillo. On March
18, 1995, Sgt. Demol reported to the ISG headquarters that Castillo was in Barangay Mitimos. In turn, Sgt.
Demol was advised that ISG will be sending him, through JRS Express, copies of the list of serial numbers of
the bills used as pay-off and a DOJ subpoena (p. 54, supra). Upon receipt of said documents, Sgt. Demol
applied for a search warrant (p. 58, supra) which was granted by the Dipolog City Regional Trial Court on
March 21, 1995 (p. 57, supra). The search warrant was shown to Elizabeth Castillo and her father who signed
the same (pp. 60-61, supra). The search yielded a black bag placed in a carton inside the house (pp. 61-62)
containing money in P1,000.00 bills in the total amount of P277,000.00 (p. 68, supra). The serial numbers of
the recovered money bills appeared in the list furnished to Sgt. Demol by ISG (pp. 88-89, supra). Thereafter,
the money was deposited with the Regional Trial Court at Dipolog City (p. 89, supra).
Prosecuted for kidnapping and serious illegal detention, Evangeline Padayhag and Elizabeth Castillo initially
pleaded guilty upon arraignment and were each meted the penalty of life imprisonment (p. 4, tsn, August 3,
1995). The trial court, however, on motion based on improvident plea, ordered the withdrawal of the plea of
guilty and directed the re-arraignment of Castillo and Padayhag.
After trial, Castillo and Padayhag were convicted of kidnapping and serious illegal detention as charged. 4
Appellants maintain their innocence and present their own version of the events in their brief, as follows:
1. Accused ELIZABETH CASTILLO was a househelper at the Cebrero household from December 1993 to
January 1995. She did the cleaning of the house, laundry of dirty clothes, and also took care of Rocky, son of
Luis and Sandra Cebrero;
2. Accused Evangeline Padayhag, also a househelper, is a friend of Elizabeth Castillo. The two met sometime
in 1994 at Paco, Ubando, Bulacan, when Padayhag worked in the household of Julito Lawagon, the latter
being the neighbor of Helen Lim, Elizabeth Castillo’s sister;
3. Upon assumption from work, Castillo was promised by Mrs. Sandra Cebrero a monthly salary of one
thousand two hundred pesos (P1,200.00);
4. Castillo, however, was never given compensation during her entire employment in the Cebrero household;
5. Castillo was also not treated nicely by the Cebrero spouses. When something gets lost in the house, she
was always the one being blamed, although the children were the ones getting the things. Besides, they say
bad words against her. Thus, she has no other choice but to leave her work;
6. Castillo had been consistently demanding from the Cebrero spouses her unpaid wages for one year; but
her demands remained unheeded;
7. Having reached only elementary education, Castillo believed that the only effective way for her to claim
back her unpaid wages is to use Rocky, son of the Cebrero Spouses;
8. On 1 March 1995 Castillo called Padayhag, telling the latter that her boyfriend is sick. At that time,
Padayhag was already working at Jelaya St., B.F. Homes, Parañaque under the employ of Lulu Sablan.
Castillo fetched Padayhag. The two, however, did not go to see Padayhag’s boyfriend but instead they went to
a playground;
9. Castillo then instructed Padayhag to fetch Rocky from his house at Cesar Virata St., B.F. Homes,
Parañaque, Manila. When Padayhag asked why she wanted to see Rocky, Castillo answered that she missed
the boy. Padayhag obliged to the request, knowing that the latter would not do any harm to the boy;
10. It was only the first time that Padayhag saw Rocky;
11. She brought the child to a market at B.F. Parañaque, where Castillo was waiting. The three went on a
stroll. Thereafter, they went to the house of Imelda Wenceslao, Castillo’s sister, at Bagong Barrio, Caloocan
City. Castillo noticed that Rocky had a fever, so she requested Vangie to buy a medicine;
12. Padayhag was not told by Castillo as to when the latter would return the boy. Padayhag did not sense
anything wrong with what had happened as she believed that Castillo only took Rocky for a stroll;
13. Imelda Wenceslao asked why they brought a child along with them. Castillo answered that she just
wanted to see the boy. Wenceslao then asked if they asked permission from the parents, and Castillo
answered "no";
14. At night, Castillo talked to Mr. Luis Cebrero over the phone to inform him that Rocky was with her. Mr.
Cebrero told her not to harm the boy. No threat or demand for ransom was ever made by the accused to the
Cebrero spouses. She never asked Mr. Cebrero how much money he had in the bank;
15. The following day, 2 March 1995, Castillo called Mr. Cebrero again to tell him that she could not yet return
Rocky because he still had a slight fever. She also told Mr. Cebrero: "Hindi nyo ako sinusuwelduhan". He
asked her: "Magkano ba ang kailangan mo?" She did not answer. Then Mr. Cebrero said: "May pera ako rito,
kalahating milyon." At that moment, Castillo hanged-up the phone;
16. Castillo denied in her Sinumpaang Salaysay dated 25 August 1999, attached as Annex "A" and made an
integral part hereof, that she demanded one million (P1,000,000.00) from the Cebrero spouses;
17. On the evening of 4 March 1995, when Castillo called Mr. Cebrero, he asked them where they were. The
accused told him that they were in Paco, Ubando, Bulacan, near a Protestant Church. Mr. Cebrero then said:
"Pupunta ako riyan bandang 2:00 ng madaling araw (March 5, 1999) na may bitbit na pera at ilalapag ko ito
sa may simbahan";
18. On 5 March 1995, at around 4:30 a.m. Castillo and Padayhag went out to buy "pandesal". They noticed
that at a post near a Church, a dog was trying to pull a black plastic bag. They picked it up and brought it
home. When they opened it, they found five bundles of money, in P1,000.00 denomination;
19. At about 9:00 p.m. of the same day, Mr. Cebrero heard a tricycle stop in front of their house. Someone
knocked at the door, and when he opened the door, he saw Rocky;
20. On 11 March 1995, Capt. Raniel Ramiro, Intelligence Security Group of the Philippine Army, together with
his men, after coordinating with Caloocan Police, arrested Evangeline Padayhag at her residence at Dagat-
Dagatan, Caloocan City. The military men did not have a warrant of arrest at this particular operation;
21. The military were civilian-dressed. They pretended to be Padayhag’s cousins who came from abroad, and
they "invited her to a birthday party". However, they brought her to Fort Bonifacio for interrogation. It was only
then that Padayhag learned that her companions were military men;
22. At Fort Bonifacio, the police coerced Padayhag to confess to the crime, threatening her: "Pag hindi ka pa
umamin, kami na mismo and bibitay sa iyo". Padayhag, however, did not confess to the commission of the
crime. She was then brought to Camp Crame at Quezon City on that same date;
23. The following day, 12 March 1995, during the custodial investigation, a certain Major Meneses was
exerting pressure on Padayhag to reveal where the P500,000.00 is. She told Major Meneses: "Wala akong
pera na ganoon kalaki." He said to her: "Pag hindi ka umamin, papatayin na kita talaga!" Her answer was:
"Patayin nyo man ako, hindi ako aamin dahil wala akong ganoong kalaking pera." Major Meneses then
slapped Padayhag and hit her with a stool on her leg;
24. Major Meneses also threatened Padayhag that if she would not confess to the crime, he would submerge
her on a drum. They forcibly brought her to a toilet room. She saw there two big drums. Major Meneses then
told her: "Iyong mga hindi umamin, nilulublob namin dito sa drum". Padayhag shouted. Thereafter, someone
knocked at the door and said: "Pakawalan n’yo na iyan dahil marami nang tao". They brought her out of the
room and handcuffed her;
25. SPO1 Larry Pablo was likewise threatening Padayhag: "Pag hindi ka pa umamin, ihuhulog na kita sa
bintanang ito!" (They were on the third floor of a building) "Alam mo ba kung ilan na ang naihulog namin
diyan? Panlabindalawa ka na sa ihuhulog namin diyan!";
26. During the custodial investigation, Padayhag was not assisted by a counsel, nor has she waived her right
to counsel. She was coerced by the police into signing an extrajudicial confession without even explaining to
her the contents thereof;
27. Atty. Eranio Sedillo only arrived one hour (1 hr.) after Padayhag had already signed the questioned
extrajudicial confession;
28. Elizabeth Castillo was arrested at Mitimos, Rizal, Zamboanga del Norte on or about 21 March 1995.
Police officers came to her house, and when they informed her that they were looking for the money, she
voluntarily gave it to them;
29. The approximate amount of money taken by Castillo was only twenty thousand (P20,000.00) She returned
the rest of the money to the police who arrested, her;
30. Castillo vehemently denied in her Sinumpaang Salaysay (par. No. 14) that she returned only P227,000.00;
31. Castillo and her escorts were fetched in Manila by a van. Inside the van, they blindfolded her. They
removed her blindfold when they reached Camp Crame;
32. Major Meneses and SPO1 Larry Pablo investigated her. She was slapped by Pablo, forcing her to admit
where the money is;
33. During the investigation, Pablo poked a gun on her, then forced her to write what he would say to her. He
instructed her to write: "Na kapag hindi ko isasauli ang lahat ng pera ay pwede n’yo na akong patayin".
Castillo followed the instructions because of fear. 5
In an 11-page Decision, of which nine pages were devoted to the recital of facts, the trial court found the testimonies of
the prosecution witnesses more credible and gave no weight to Castillo and Padayhag’s defenses. The trial court
convicted appellants on 17 December 1997 and imposed on them the death penalty, thus:
Originally, both accused pleaded guilty to the offense and were meted the penalty of life imprisonment.
However, shortly thereafter, they moved to withdraw their plea claiming it was precipitate, which the court
allowed and proceeded with a full-blown trial.
Accused Elizabeth Castillo demanded money from Rocky’s parents for the release of the latter. She told his
father to bring the money to Obando Bulacan. The Court can only imagine the pain, worry, fear and anxiety of
the boy’s parents while their youngest son was under detention.
Ransom is money, price or consideration demanded for the redemption of a captured person or persons, a
payment that releases from captivity" (Corpus Juris Secundum 458). The testimony of Elizabeth Castillo that
she did not know about the money cannot be given weight. Two hundred Seventy Seven Thousand
(P277,000.00) Pesos was found among her things, the bills bearing the same serial number as the money
paid to her.
The court has taken a hard look in determining the liability of Evangeline Padayhag as it seems that her only
participation in the crime was picking up the boy from his house. Although she did not get part of the ransom
the fact is that she fully and directly cooperated and did her part to carry out the resolution of her co-accused.
Under these facts there was conspiracy to extort ransom. People versus Kamad Akiran, 18 SCRA 239.
The Court is convinced that the prosecution has established the guilt of the accused beyond reasonable
doubt.
WHEREFORE, ELIZABETH CASTILLO and EVANGELINE PADAYHAG are sentenced to suffer the supreme
penalty of death. Further, they are hereby ordered to pay jointly and severally the sum of Five Hundred
Thousand (P500,000.00) Pesos as moral damages and Five Hundred Thousand (P500,000.00) Pesos as
exemplary damages plus costs of litigation.
SO ORDERED.6
Appellants seek the reversal of their conviction by raising the following assignments of error:
I
THE TRIAL COURT ERRED IN MISAPPRECIATING (SIC) THE FACTS OF THE CASE.
II
THE TRIAL COURT ERRED IN CONCLUDING THAT THERE WAS CONSPIRACY TO EXTORT RANSOM IN
THIS CASE.
III
THE TRIAL COURT ERRED IN CONSIDERING THE UNCOUNSELLED CONFESSION OF EVANGELINE
PADAYHAG.
IV
THE TRIAL COURT GRAVELY ERRED IN IMPOSING THE DEATH PENALTY IN THE CASE AT BAR. 7
We affirm the trial court’s judgment convicting Castillo. However, we acquit her co-accused Padayhag.
To sustain a conviction for Kidnapping and Serious Illegal Detention under Article 267 of the Revised Penal Code, 8the
prosecution must establish the following: (1) the offender is a private individual; (2) he kidnaps or detains another or in
any other manner deprives the victim of his liberty; (3) the act of kidnapping or detention 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) serious physical injuries are inflicted on the victim
or threats to kill are made; or (d) the person kidnapped or detained is a minor, female or a public officer. 9
Appellant Castillo’s Liability
Castillo asserts that the victim’s parents did not pay her wages when she worked as a maid of the victim’s family. 10She
claims that it was this injustice, her educational level and her ignorance of the law, which impelled her to take Rocky.
She faults the trial court for refusing to consider this. Castillo is mistaken. Whether or not her employer failed to pay
her salary is irrelevant. No amount of perceived injustice can serve as justification for any person to retaliate through
the commission of another crime. The trial court was therefore correct in disregarding Castillo’s claim that Rocky’s
parents committed injustice on her.
Castillo’s claim of injustice cannot justify in any way her demand for ransom. Ransom is "money, price or consideration
paid or demanded for redemption of a captured person or persons, a payment that releases from captivity." 11 Thus,
even if she had a right to demand payment of her unpaid wages, the money she actually demanded and eventually
received, is still ransom.
Castillo’s reliance on her low educational level is similarly unavailing. The penalty for kidnapping for ransom is the
singular and indivisible penalty of death. This bars the application of any alternative, mitigating or aggravating
circumstance.12
Mr. Cebrero admitted that he was unable to identify his son Rocky’s abductors. De Lena and Iglesias, the police
officers who did the stake-out during the "pay-off," testified that the two women suddenly disappeared after retrieving
the plastic bag containing the ransom. The police officers’ inability to explain how two simple maids managed to give 5
carloads of police officers the slip severely discredits their account of what happened that day.
Rocky’s testimony, however, leaves no room for doubt. Only six years of age when he testified, Rocky was candid and
direct in his recollection, narrating events as a young boy saw them happen, thus:
COURT
Alright. Rocky, when Vangie went to fetch you from your house.
A Yes.
COURT
You took a tricycle.
A Yes.
COURT
Where did you go?
A I do not know.
PROS. FONACIER
Your Honor, please, may we request that the rule on evidence be not strict on this boy. The witness is of
tender age.
ATTY. SOLUREN
There is no strict implementation as to what the Honorable Prosecutor stated. There is no strict
implementation of the rules of court. In fact, we are very lenient but the fact is, the child said he does not
know. But the question is – he was giving the answer to this witness.
COURT
Ask another question.
Q Rocky, nang sumakay kayo ni Vangie sa tricycle, nakita mo ba si Beth Castillo?
A Nakita namin si Beth sa McDonalds. Malapit sa amin.
Q Rocky, nakita ninyo si Beth. Ngayon, tatlo na kayo, ikaw, si Beth at si Vangie?
A Yes.
Q Rocky, noong magkasama na kayong tatlo, saan kayo nagpunta?
A Nasundo namin si Beth.
Q Noong nasundo na ninyo si Beth, saan kayo nagpunta?
A Sa bahay nila.
Q Kaninong bahay?
A Hindi ko alam.
Q Malayo ba sa McDonald o malapit. Sinabi mo kanina, nagpunta kayo sa bahay nila?
A Yes.
Q Iyong bahay na pinuntahan ninyo, malayo sa McDonald?
A Malayo.
Q Anong sinakyan ninyo?
A Hindi ko alam.
Q Noong dumating kayo doon sa bahay na hindi ninyo, bahay, natulog ka ba doon?
A Yes.
Q Ilang beses ka natulog doon?
A 4 sleeps.
Q Pinakakain ka ba sa bahay na pinuntahan ninyo?
A Yes.
Q Ano ang pinakakain sa iyo?
A Champorado and fish.
Q Sino ang nagpapakain sa iyo?
A Vangie.
Q Sino si Vangie. Puede mo bang ituro sa amin?
PROS. FONACIER
The witness is pointing to accused Evangeline Padayhag as the Vangie he was referring to.
Q Doon sa 4 sleeps mo sa bahay na iyon, saan ka pa nila dinala?
A Pinauwi na ako.
Q Sinong kasama mo noong pinauwi ka?
A Wala, pero mula sa McDonald, naiwan na ako sa tricycle hanggang sa bahay. 13
Unshaken by rigorous cross-examination, Rocky’s testimony would have been more than enough to convict Castillo.
The testimony of a single witness, if credible and positive, is sufficient to convict. 14 But there is more. The evidence on
record amply supports the factual findings of the trial court. Both the evidence of the prosecution and the defense
establish the commission of the crime.
Castillo admitted she instructed Padayhag to fetch Rocky on 1 March 1995:
Q And as a result of sitting at the palaruan, Miss witness, what happened next?
A Pinasundo ko si Rocky kay Vangie, mam.
Q And why did you ask Vangie to fetch Rocky, Miss witness?
A Kasi po naalala ko pagnamamalengke ako at kasama ko si Rocky, lagi po kaming pumupunta sa
palaruan, mam
Q And then what happened next, Miss witness?
A Sinundo po ni Vangie si Rocky, mam.
Q Whom did Vangie fetch, Miss witness?
A Si Rocky po, mam.
Q And after Rocky fetched by Vangie, what happened next?
A Ipinasyal po namin si Rocky, mam.15 (Emphasis supplied)
She also testified that she had no permission from Rocky’s parents to take the child with her:
T Saan kayo nananghalian?
S Doon po sa bahay ng kapatid ko.
T Noong dumating kayo doon, ano naman ang sinabi ng kapatid mo sayo?
S Ang sabi niya, bakit daw may kasama kaming bata.
T Ano naman ang naging sagot mo kay Imelda?
S Sabi ko pinasyal lang po namin.
T Hindi tinanong ni Imelda kung bakit pinasyal nyo ang bata, kung may paalam yong bata doon sa
kanyang magulang?
S Tinanong po.
T Ano naman ang sinabi mo sa kanya?
S Sinabi ko gusto ko lang makita si Rocky.
T Pero, ano ang sinabi mo noong tinanong kung may paalam ang bata sa kanyang magulang, anong
naging sagot mo sa katanungan niya?
S Ang sabi niya baka daw pagalitan kami.
T Ano naman ang naging sagot mo?
Your Honor, may we asked (sic) the witness to be more responsive with her answer.
COURT
What was the question, please?
Stenographer:
(Reading back the question)
T Noong tinanong ni Imelda kung may paalam ang bata sa mga magulang, ano ang sagot mo?
S Ang sabi ko po hindi, walang paalam.
T Ano ang naging reaction ng iyong kapatid na si Imelda?
S Bakit daw hindi nagpaalam.16 (Emphasis supplied)
Castillo testified that, during the period of Rocky’s detention she called Rocky’s father, Mr. Cebrero, to wit:
Q What happened next Miss witness?
A Tinawagan ko po ang mga Cebrero.
Q Who of the Cebreros did you call up?
A Si Luis Cebrero po, mam.
Q What happened next after that?
A Pagtawag ko po kay Mr. Luis Cebrero tinanong po niya sa akin kung nasaan si Rocky, mam.
Q And what is your reply?
A Sinabi ko po na nandidito sa amin, mam.
Q After that what happened next?
A Nagalit po si Luis Cebrero sa akin, mam.
Q And what did you do when Luis Cebrero got angry?
A Tinanong po niya ako kung magkano ang kailangan ko, mam.
Q And what else did he say, Miss witness?
A Sinabi po niya sa akin na huwag ko raw pong sasaktan si Rocky, mam.
Q And then what else?
A Pinipilit po niya ako na kung magkano daw ang kailangan namin na pera, pagkatapos hindi ko na
po sinagot ang tanong niya, mam.
Q And then what happened next?
A Binaba ko na po iyong telepono, mam.17 (Emphasis supplied)
The number and time of these calls coincided with the calls Mr. Cebrero received from Castillo telling him that she had
Rocky and instructing him to pay the ransom for Rocky’s release.
Additionally, Castillo by her own admission placed herself at the time and place where the "pay-off" occurred:
T Sa pangatlong araw naman, nandoon ka pa rin ba at saka si Rocky?
S Opo.
T Sa bahay ni Imelda?
S Nagpaalam po ako sa kapatid ko na maghahanap muna ako ng trabaho.
T Si Vangie, saan naman siya noon?
S Nandoon pa rin sa Dagat-dagatan po.
T Si Rocky naman?
S Andoon po sa bahay ng kapatid ko.
T Mga anong oras yon na nagpaalam ka na maghanap ng trabaho?
S Umaga po ako nagpaalam.
T Kung ganoon umalis ka ng umagang yan?
S Opo.
T Saan ka naman pumunta?
S Naghanap po ako ng trabaho.
T Saan ka naghanap ng trabaho?
S Sa may bandang Bulacan po.
T Sa may Paco Obando, doon ka ba pumunta?
S Hindi po.
T Saang parte ka ng Bulacan pumunta?
S Malapit po sa may – Hindi ko na po matandaan yong pinuntahan namin.
T Malapit sa may?
S Papunta na po ng Obando, pero hindi nakarating doon.
T Saan ka pumunta doon para maghanap ka ng trabaho?
ATTY. SOLUREN
Already answered, Your Honor, that the place papunta ng Obando pero hindi pa nakakarating sa Obando.
STATE PROSECUTOR FONACIER
That is why I am asking.
COURT
What place is that? Witness may answer.
T Anong detalyadong lugar?
S Sa may Julo po.
T Ano yong Julo?
S Malapit po iyan sa Obando
COURT
Saang bayan ng Bulacan yon?
S Yon lang po ang alam ko.18 (Emphasis supplied)
Beyond a feeble excuse that she was in Obando in order to look for employment, Castillo provides no other plausible
reason why her presence at that place, at such an opportune time should not be taken against her as additional
evidence of her guilt. To attribute this to coincidence, as Castillo would probably have us do, taxes one’s credulity.
The same can be said of her inability to explain how the ransom money was found in her possession when she was
caught by policemen in Dipolog. Castillo plainly contradicts herself on this point. In Castillo’s brief, she admitted going
to the "pay-off" site on the day Mr. Cebrero was told to leave the ransom for Rocky’s release. Castillo admitted she
found at the site a black plastic bag filled with money and brought it home. 19 However in her testimony before the trial
court, she maintained that the first time she saw the same plastic bag was when it mysteriously appeared in her
luggage when she went to Dipolog:
Q And thereafter, Miss witness, what happened next?
A Hinanap ko iyong mga kagamitan ko po, mam.
Q And for what purpose you looked at your things, Miss witness?
A Para ayusin po iyong mga kagamitan ko para makapagpahinga na po ako, mam.
Q What happened next, Miss witness?
A May nakuha ako na isang plastic bag sa loob ng aking bag, mam.
Q And what is this plastic bag about, Miss witness?
A May laman po na pera, mam.
Q And how much money was there in that plastic bag, Miss witness?
A Hindi ko po alam.
Q And what did you observe about the money in the plastic bag?
A Nagulat po ako, mam.
Q And why were you surprised?
A Hindi ko po kasi lubos na maisip na ang bag na aking dala dala ay may laman na isang malaking
halaga na pera, mam.
Q And what did you do after learning that there was money inside your bag, Miss witness?
A Pinabayaan ko na lang po at inaantay na may kumuha na lang po niyon sa akin mam. 20 (Emphasis
supplied)
Castillo insists that she took Rocky simply because she missed him, and wanted to spend time with him. At the same
time, in her brief Castillo claims that what spurred her to take Rocky was her desire to get her unpaid wages from the
Cebreros.21
Castillo also points out that Rocky came along freely with them, was not harmed, and was even cared for during his
detention. This argument is pointless. The essence of kidnapping is deprivation of liberty. For kidnapping to exist, it is
not necessary that the offender kept the victim in an enclosure or treated him harshly. 22 Where the victim in a
kidnapping case is a minor, it becomes even more irrelevant whether the offender forcibly restrained the victim.
Leaving a child in a place from which he did not know the way home, even if he had the freedom to roam around the
place of detention, would still amount to deprivation of liberty. For under such a situation, the child’s freedom remains
at the mercy and control of the abductor.
Next, Castillo explains that she called Mr. Cebrero not to ask for ransom but to tell him that Rocky was with her and
unharmed. Castillo admitted that Mr. Cebrero pleaded with her not to harm Rocky. Castillo failed to explain, however,
why she did not inform Mr. Cebrero of their exact whereabouts so that Mr. Cebrero could fetch Rocky. Her failure to
inform Mr. Cebrero clearly shows she kept Rocky in detention considering she called Mr. Cebrero several times while
she had physical control over Rocky.
Castillo’s explanation that she decided to return Rocky only when he was no longer sick is also implausible. In the first
place, she failed to explain why she did not return the child the moment she found out he was sick. That would have
been the more prudent course of action at that time. However, one day after the "pay-off" on 4 March 1995, Rocky
suddenly appeared by himself at the Cebreros’ home on 5 March 1995. Any reasonable person would conclude that
the pay-off and the return of the child were related events. Castillo would have us attribute this to coincidence.
Castillo would also have us believe that what prompted her sudden departure for Dipolog, where she was eventually
captured, was her inability to find employment in Manila. And yet Castillo does not explain why she tried to bring
Padayhag along with her to Dipolog.
Finally, Castillo points out that the prosecution coached Rocky’s testimony. True, Rocky admitted he did not know the
contents of the document he signed in front of the fiscal. 23 Rocky also stated that he was told to testify that Padayhag
forced him to go with her, and finally, that he must accuse both appellants as his abductors. 24 These admissions,
damaging as they may sound, are of little use to appellants. The reason is simple. The facts to which Rocky’s
testimony pertains to are the very same facts Castillo herself admitted on the witness stand. Even if we were to
discredit Rocky’s testimony entirely, the facts of his kidnapping stand proven by no less than Castillo’s own admission
on the witness stand and in her brief.
With the evidence Castillo’s own testimony established, the prosecution’s witnesses did little more than corroborate
what Castillo herself had admitted. Since Castillo admitted in open court that she instructed Padayhag to fetch Rocky
even without the parents’ permission, we find her explanations futile. Her allegations of torture and of signing a sworn
statement without counsel are useless. After claiming to have been tortured into making her sworn statement, logic
would have it that Castillo should have debunked the contents of that statement through her testimony. Instead, she
freely and voluntarily recounted events as she narrated them in her sworn statement. Moreover, there is no allegation
that the trial court decided her guilt based on her sworn statement. The trial court based its decision on the testimonies
of all the witnesses, including Castillo’s.
In sum, the prosecution has established beyond reasonable doubt Castillo’s guilt.
Appellant Padayhag’s Liability
The same cannot be said of Padayhag. Our review of the evidence on record shows that the prosecution failed to
prove Padayhag’s guilt beyond reasonable doubt.
We reiterate the doctrine that an appeal in a criminal case opens the entire case for review on any question including
those not raised by the parties.25 This becomes even more imperative in cases where the penalty imposed is death.
Padayhag’s sole involvement in this entire episode is her act of fetching Rocky and bringing him to where Castillo was
waiting for them. Padayhag then went strolling with the two, went to the house of Castillo’s sister together with Castillo
and Rocky, and then later left the house. From this fact alone, the prosecution would have us rule that Padayhag
acted in conspiracy with Castillo. The prosecution contends that without Padayhag’s help, Castillo could not have
abducted Rocky.
We are not persuaded.
There must be positive and conclusive evidence that Padayhag acted in concert with Castillo to commit the same
criminal act. To hold an accused guilty as a co-principal by conspiracy, there must be a sufficient and unbroken chain
of events that directly and definitely links the accused to the commission of the crime without any space for baseless
suppositions or frenzied theories to filter through. 26 Indeed, conspiracy must be proven as clearly as the commission of
the crime itself.27
Conspiracy is established by the presence of two factors: (1) singularity of intent; and (2) unity in execution of an
unlawful objective. The two must concur. Performance of an act that contributes to the goal of another is not enough.
The act must be motivated by the same unlawful intent. Neither joint nor simultaneous action is per se sufficient
indicium of conspiracy, unless proved to have been motivated by a common design. 28
Padayhag’s act of fetching Rocky is not conclusive proof of her complicity with Castillo’s plan, a plan Padayhag did not
even know. Both appellants testified that Padayhag met Castillo only because Castillo told Padayhag that Padayhag’s
boyfriend was sick. It was precisely on the pretext that they were to visit Padayhag’s boyfriend that the two met. When
they met, Padayhag realized that Castillo had deceived her:
Q Why? (sic) Elizabeth Castillo fetched you on February 28, 1995 and why did you decide to leave your
employment?
A Kasi sabi po niya sa akin ang boyfriend ko raw ay maysakit, sir.
Q And could you tell us who is that boyfriend of yours?
A Si Jessie Mercader po, sir.
Q And what is the address of Jessie Mercader, at that time, February 28, 1995?
A Sa Caloocan City po, sir.
Q And you said he was sick. What was his sickness?
ATTY. SOLUREN
Your Honor, that is misleading.
COURT
Reform your question.
Q Madam witness, you said that you were informed that your boyfriend was sick. Did you go and see your
boyfriend?
A Sumama po ako kay Elizabeth Castillo pero hindi na po kami natuloy pumunta doon, sir.
Q For what reason you did not go?
A Hindi po sinabi sa akin ni Elizabeth Castillo, sir.
Q So, you did not come to find out what was the sickness of your boyfriend?
A Hindi na po sir.
Q Are we made to understand, madam witness, when you left your employer on 28 February 1995 for the
reason that your boyfriend was sick, you did not actually go and see your boyfriend?
A Opo, sir.29
After the two spent the day together, Castillo beseeched Padayhag to fetch Rocky citing as reason her love for the
child and a desire to spend time with the boy. Padayhag is a young lass from the province who only finished Grade
Two. Padayhag was thus easily misled by the more worldly Castillo. Padayhag’s testimony reveals her naiveté:
COURT
Q Ano ang sinabi sa iyo bakit mo susunduin ang bata?
A Namimiss na raw po niya iyong bata at nais niyang makita, Your Honor.
COURT
Tapos ikaw ang pinasundo niya doon sa bata?
A Opo, Your Honor.
COURT
Tapos noon dalhin sa Caloocan, ano pa, sinabi pa rin niya namimiss niya ang bata ganoon uli ang sinabi niya
sa iyo?
A Wala na po siyang sinabi sa akin, Your Honor.
COURT
Hindi ka ba nakahalata na may mali doon sa pangyayaring iyon?
A Ang pagkakaalam ko po ay ipapasyal lamang niya ang bata, Your Honor.
Q Sa Caloocan?
A Opo, Your Honor.
COURT
Tapos umalis ka na pagkatapos ninyong kumain doon ng kapatid niya?
A Opo, Your Honor.
COURT
Ipinasyal ba niya ang bata?
A Hindi ko na po alam kasi umalis nga po pagkatapos namin kumain, Your Honor.
COURT
Kailan niya sinabi sa iyo na ibabalik ang bata?
A Wala po siyang sinabi kung kailan, Your Honor.
COURT
Ganoon ba ang alam mo sa pamamasyal?
A Siya naman po ang nagyaya, Your Honor. 30
Her ignorance and susceptibility to confusion becomes more evident in the following exchange:
COURT
Kailan ka ba umalis kay Mr. Julito Luwagon?
A Hindi ko pa matandaan, Your Honor.
COURT
Pero sabi mo kanina ay pitong buwan ka doon?
A Opo pitong buwan ako roon pero hindi ko po matandaan kung anong buwan, Your Honor.
ATTY. SOLUREN
She only finished Grade II, Your Honor.
COURT
Yes I know it but she would know that she works for seven (7) months. Alam mo ba na December 1994 ka
nagsimula mangamuhan kay Julito Luwagon?
A Opo, Your Honor.
COURT
Enero, Pebrero, Marso, Abril, Mayo, Hunyo at Hulyo tama ba iyon?
A Opo, Your Honor.
COURT
Papaano nangyari noong Enero 1995 ikaw ay nagtratrabaho na kay Lulu Sablan?
A Itinuro po sa akin ni Elizabeth Castillo na mag-apply ng trabaho sa may BF Homes, Your Honor.
COURT
Kailan kayo nagkita nitong si Elizabeth Castillo?
A Noong January lang po, Your Honor.
COURT
Saan kayo nagkita?
A Pinaalis niya po ako doon sa pinagtratrabahuan ko sa may Dagat Dagatan, Your Honor.
COURT
Alam mo ba kung ilang buwan mayroon ang isang taon?
A Hindi ko po alam, Your Honor.
COURT
Pero alam mo ang mga buwan, Enero, Pebrero.. alam mo iyon?
A Opo, Your Honor.
COURT
Sige nga sabihin mo nga sa akin kung anu-ano ang mga buwan?
A Enero, Pebrero, Marso, Abril, Mayo, Hunyo, Hulyo, Agosto, Setyembre, Oktubre, Nobyembre at
Disyembre po, Your Honor.31
Padayhag’s confusion in the way she answered the questions propounded to her only highlights the fact that she was
not aware of Castillo’s plans and was vulnerable to the latter’s manipulation. Her straightforward and wide-eyed
admission of facts that incriminate her demonstrate a level of honesty that can only be found in those who do not
know the art of deceit. Far from a cold and calculating mind, Padayhag strikes us as one whose innocence often
leaves her at the mercy of her more worldly peers. It is clear that she acted with the full belief that Castillo was doing
nothing wrong. Whatever moved her to do what Castillo asked of her is up for speculation. What matters is that her
motivation in fetching Rocky was not to kidnap the boy. To impose criminal liability, the law requires that there be
intentional participation in the criminal act,32 not the unwitting cooperation of a deceived individual.
In its brief the prosecution itself cites that any inquiry as to the liability of an individual as a conspirator should focus on
all acts before, during and after the commission of the crime.33 We have done precisely that, and it is precisely why we
rule for her innocence. After her stroll with Castillo and Rocky, she left when Castillo brought the boy to her sister’s
house in Caloocan.34 She never visited nor contacted Castillo afterwards. She remained at her house and refused to
go with Castillo when the latter suddenly tried to coax her to go to Dipolog. None of the money used as ransom was
found in her possession. Her involvement in the "pay-off" was never established. The testimony of two prosecution
witnesses, Sgt. De Lena and Sgt. Iglesias, claiming that Padayhag was with Castillo when the latter picked up the
ransom in Obando, is contradicted by Castillo’s admission in open court that she brought along a certain "Mila" and
not Padayhag.35 In addition, the testimonies of these two police officers suffer from their failure to explain how they
suddenly lost track of the two women who took the ransom in front of their very eyes.
All these circumstances illustrate the absence of any hint of conspiracy. We also find that the prosecution failed to
prove Padayhag’s guilt beyond reasonable doubt. In People v. Gonzales36 we held:
In the absence of conspiracy, 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, then the evidence does not fulfill the test of moral certainty and is not sufficient to support a conviction.
Every person accused has the right to be presumed innocent until the contrary is proven beyond reasonable doubt.
The presumption of innocence stands as a fundamental principle of both constitutional and criminal law. 37 Thus, the
prosecution has the burden of proving every single fact establishing guilt. 38 Every vestige of doubt having a rational
basis must be removed.39 The defense of the accused, even if weak, is no reason to convict. 40 Within this framework,
the prosecution must prove its case beyond any hint of uncertainty. The defense need not even speak at all. The
presumption of innocence is more than sufficient.
The failure to prove Padayhag’s involvement as a conspirator reveals how tenuous the evidence is linking her to the
crime. Padayhag’s culpability hinges on how her act of fetching Rocky and bringing him to Castillo formed part of a
concerted effort to kidnap the child. The act of fetching the boy, by itself, does not constitute a criminal offense. By
itself, it is not even sufficient to make her an accomplice. For a person to be considered an accomplice there must be
a community of design, that is, knowing the criminal design of the principal, the co-accused concurs with the latter.
Mere commission of an act which aids the perpetrator is not enough. As we explained in People v. Cual:41
The cooperation that the law punishes is the assistance knowingly rendered, which cannot exist without the
previous cognizance of the criminal act intended to be executed. It is therefore required in order to be liable as
an accomplice, that the accused must unite with the criminal design of the principal by direct participation.
There was therefore a need for clear and convincing proof that this single act was committed to kidnap the child. The
prosecution failed to prove this. Padayhag explained that Castillo coaxed her into fetching Rocky through another
deception and by playing on her feelings of sympathy and friendship. Castillo corroborated this on the witness stand.
The prosecution failed to prove otherwise.
The facts as established show that the only thing Castillo told Padayhag was to fetch Rocky because Castillo missed
her former ward. Upon reaching the house of the Cebreros, the boy’s nanny handed over to Padayhag the child.
There is no allegation or evidence that Padayhag knew the criminal plan of Castillo. Neither is there any hint that
Castillo told Padayhag to abduct the boy, or to misrepresent herself or use means that would have led Padayhag to
suspect that Castillo had some criminal design. Nor was there any proof that Padayhag knew that Castillo had no
permission from the boy’s parents. The appearance of the boy itself, newly bathed and dressed for a stroll, would have
led Padayhag to believe whatever story Castillo contrived to ask her in fetching the boy.
A criminal conviction must stand on the strength of the evidence presented by the prosecution, and not on the
weakness of the defense of the accused. The prosecution should have done more to establish Padayhag’s guilt.
Instead, the prosecution left a lot of room for other possible scenarios besides her guilt. This is a fatal error. The
presumption of innocence imposes a rule of evidence, a degree of proof that demands no less than total compliance.
As we explained in United States v. Reyes:42
The presumption of innocence can be overborne only by proof of guilt beyond reasonable doubt, which means
proof, to the satisfaction of the court and keeping in mind the presumption of innocence, as precludes every
reasonable hypothesis except that which it is given to support. It is not sufficient for the proof to establish
a probability, even though strong, that the fact charged is more likely true than the contrary. It must
establish the truth of the fact to a reasonable and moral certainty- a certainty that convinces and satisfies the
reason and conscience of those who are to act upon it. (Emphasis supplied)
On the other hand, we find Padayhag’s explanation sufficiently supported by circumstances aside from Castillo’s
testimony. Padayhag’s acts before, during and after the crime all point to the conclusion that she was no more than an
unwitting tool of Castillo. Castillo misled her into a meeting. Castillo again misled her into fetching Rocky. Castillo
never met or contacted her after the day of Rocky’s abduction. Castillo also testified that she did not bring Padayhag
along with her when she went to Obando on the day that coincided with the "pay-off." The only circumstance linking
Padayhag to that event is the shaky account of two police officers who admitted that their quarry inexplicably
disappeared before their very eyes. Even the presumption of regularity in the performance of official duty, by itself,
cannot prevail over the constitutional presumption of innocence. 43 Nothing links Padayhag to the demand for ransom.
She never received any part of the ransom, precisely because she did not even know it existed.
Penalty and Damages
Under Article 267 of the Revised Penal Code,44 the penalty of death is imposed upon proof that the kidnapping was
committed to extort ransom from the victim or any other person. We find that the prosecution has established Castillo’s
guilt for this crime beyond reasonable doubt. However, Castillo’s pecuniary liability must be modified to conform with
jurisprudence. The award of exemplary damages must be deleted in the absence of any aggravating circumstance.
Mr. Cebrero testified that their family suffered serious anxiety at the possibility of not seeing Rocky again. 45 The pain
and anguish they experienced justifies the award of moral damages. However, we reduce the trial court’s award of
moral damages to P100,000 in line with current jurisprudence. 46
WHEREFORE, the Decision of the Regional Trial Court of Parañaque, Branch 260, National Capital Judicial Region,
in Criminal Case No. 95-86 convicting appellant Elizabeth Castillo is AFFIRMED with MODIFICATION. Appellant
Elizabeth Castillo is sentenced to suffer the penalty of DEATH and to pay the victim P100,000 as moral damages. The
award for exemplary damages is deleted for lack of legal basis. The trial court’s Decision convicting appellant
Evangeline Padayhag is REVERSED. We ACQUIT Evangeline Padayhag and order her immediate RELEASE from
confinement unless held for another lawful cause. The Director of the Bureau of Corrections is ordered to report to the
Court, within five days from notice, compliance with this Decision.
In accordance with Article 83 of the Revised Penal Code, as amended by Section 25 of Republic Act No. 7659, upon
finality of this decision, let certified true copies of the records of this case be forwarded to the President of the
Philippines for the possible exercise of the pardoning power.
SO ORDERED.
SIMON FERNAN, JR. and EXPEDITO TORREVILAS vs. PEOPLE OF THE PHILIPPINES
G.R. No. 145927 August 24, 2007
VELASCO, JR., J.:
The instant petition under Rule 45 originated from 119 criminal cases 2 filed with the Sandiganbayan (SB) involving no
less than 36 former officials and employees of the then Ministry of Public Highways (MPH) and several suppliers of
construction materials for defalcation of public funds arising from numerous transactions in the Cebu First Highway
Engineering District in 1977. Because of the sheer magnitude of the illegal transactions, the number of people
involved, and the ingenious scheme employed in defrauding the government, this infamous 86 million highway scam
has few parallels in the annals of crime in the country.
The Case
Petitioners Simon Fernan, Jr. and Expedito Torrevillas seek the reversal of the December 4, 1997 Decision 3 of the SB
in the consolidated Criminal Case Nos. 1640, 1641, 1642, 1643, 1818, 1819, 1820, 1821, 1822, 1823, 1879, 1880,
1881, 1882, 1883, 1884, 1885, 1886, 1887, 1888, 1889, 2839, 2840, 2841, 2842, 2843, 2844, 2845, 2846, 2847,
2848, 2849, 2850, 2851, 2852, 2853, 2854, 2855, 2856, 2857, 2858, 2859, 2860, 2861, 2862, 2863, 2864, 2865,
2866, 2867, 2868, 2869, 2870, 2871, 2872, 2873, 2874, 2875, 2876, 2877, 2878, 2879, 2880, 2881, 2882, 2883,
2884, 2885, 2886, 2887, 2888, 2889, 2890, 2891, 2892, 2893, 2894, 2895, 2896, 2897, 2898, 2899, 2900, 2901,
2902, 2903, 2904, 2905, 2906, 2907, 2908, 2909, 2910, 2911, 2912, 2913, 2915, 2917, 2918, 2919, 2920, 2921,
2922, 2923, 2924, 2925, 2926, 2927, 2928, 2929, 2930, 2931, 2932, 2936, 2937, 2938, and 2939, 4 all entitled People
of the Philippines v. Rocilo Neis, et al., finding them guilty of multiple instances of estafa through falsification of public
documents;5 and the subsequent August 29, 2000 SB Resolution which denied their separate pleas for
reconsideration.
Petitioner Fernan, Jr. disputes the adverse judgment in only six (6) cases, namely: 2879, 2880, 2881, 2885, 2914, and
2918; while petitioner Torrevillas seeks exoneration in nine (9) cases, namely: 2855, 2856, 2858, 2859, 2909, 2910,
2914, 2919, and 2932.
Both petitioners assert their strong belief that their guilt has not been established beyond reasonable doubt and,
hence, exculpation is in order.
The Facts
6
The SB culled the facts this way:
On June 21, 1978, COA Regional Director Sofronio Flores Jr. of COA Regional Office No. 7, directed auditors Victoria
C. Quejada and Ruth I. Paredes to verify and submit a report on sub-allotment advises issued to various highway
engineering districts in Cebu, particularly, the Cebu City, Cebu 1st, Cebu 2nd and the Mandaue City Highway
Engineering Districts. Complying with the directive, they conducted an investigation and in due course submitted their
findings. Their report (Exhibit C) confirmed the issuance of fake Letters of Advice of Allotments (LAAs) in the districts
mentioned. They discovered that two sets of LAAs were received by the districts. One set consists of regular LAAs
which clearly indicated the covering sub-allotment advices and were duly signed by Mrs. Angelina Escaño, Finance
Officer of the MPH Regional Office. The LAAs were numbered in proper sequence and duly recorded in the logbook of
the Accounting, Budget and Finance Division. The other set consists of fake LAAs which do not indicate the covering
sub-allotment advice and were signed by Chief Accountant Rolando Mangubat and Engr. Jose Bagasao, instead of
the Finance Officer. These fake LAAs were not numbered in proper sequence; they were mostly undated and were
sometimes duplicated. They could not be traced to the files and records of the Accounting, Budget and Finance
Division. The accounting entry for the disbursements made on the fake LAAs was debited to the Accounts-Payable
Unliquidated Obligations (8-81-400) and credited to the Checking Account with the Bureau of Treasury (8-70-790).
Nevertheless, the expenditures were taken from obligations of the current year (1978) because all the supporting
papers of the payment vouchers were dated in that year. The entries in the journal vouchers filed with the MPH
Regional Office were adjusted every month to 8-81-400 (unliquidated or prior years obligation), 8-83-000 (liquidated or
current year obligations) and 8-70-700 (Treasury/Agency Account). All of these were approved for the Finance Officer
by Chief Accountant Rolando Mangubat. Mangubat, however, had no authority to approve them because since
October 1977, he had already been detailed to the MPH Central Office. There were indications that the practice had
been going on for years.
xxxx
Due to these serious irregularities, then President Marcos created a Special Cabinet Committee on MPH Region VII
"Ghost Projects Anomalies" which in turn organized a Special Task Force composed of representatives from the
Finance Ministry Intelligence Bureau (FMIB), National Bureau of Investigation (NBI), the Bureau of Treasury and the
Commission on Audit. The mission of the task force was to conduct a wider and more extended investigation in all the
fifteen (15) highway engineering districts of MPH Region VII, including the Cebu First Highway Engineering District,
the 1977 questionable disbursements of which are the subject matter of these cases.
xxxx
For a better understanding of these highways cases, the flow in the release of funds to the various agencies of the
government and the control devices set up for disbursement and accounting of public funds should first be explained.
A chart (Exhibit B) graphically shows the flow of allotments from the Ministry down to the district level.
On the basis of appropriation laws and upon request made by heads of agencies, the then Ministry of Budget released
funds to the various agencies of the government by means of an Advice of Allotment (AA) and a Cash Disbursement
Ceiling (CDC). The Advice of Allotment is an authority for the agency to incur obligations within a specified amount in
accordance with approved programs and projects. The Cash Disbursement Ceiling is an authority to pay. Upon receipt
of the AA and CDC from the Budget, the Central Office of the agency prepares the Sub-Advice of Allotment (SAA) and
the Advice of Cash Disbursement Ceiling (ACDC) for each region, in accordance with the disbursement allotment.
These are sent to the Regional Office. Upon receipt, the Budget Officer of the region prepares the corresponding
Letters of Advice of Allotment (LAA) which are forwarded to the various districts of the region (The amount that goes to
each district is already indicated in the Advice of Allotment). Only upon receipt of the LAA is the district office
authorized to incur obligations.
Now, how are funds released by the Regional Office to the different districts and ultimately paid out to contractors, the
District Engineer submits to the Regional Director a request for allotment in accordance with the program of work
prepared by the former. This procedure starts with the preparation of a Requisition for Supplies and Equipment (RSE)
in the District Office by the Senior Civil Engineer, approved by the District Engineer, and signed by the Chief
Accountant of the Highway Engineering District, who certifies as to the availability of funds. The RSE is then submitted
to the Regional Director for approval. Once it is approved, a Request for Obligation of Allotment (ROA) is prepared by
the Chief Accountant of the district Senior Civil Engineer. The ROA signifies that a certain amount of district funds has
been set aside or earmarked for the particular expenditures stated in the RSE. On the basis of the ROA, the District
Office puts up advertisements, [conducts] biddings, makes awards and prepares purchase orders which are served on
the winning bidder. The District Office also prepares a summary of deliveries with the corresponding delivery receipts
and tally sheets, conducts inspection and prepares the General Voucher for the payment of deliveries. Once the
General Voucher (GV) has been prepared, the corresponding check in the form of a Treasury Check Account for
Agency (TCAA) is drawn by the Disbursing Officer and finally released to the contractor.
At the end of every month, the Report of Checks Issued by Deputized Disbursing Officer (RCIDD) is prepared, listing
all the checks issued during that period. The RCIDDO is submitted to the accounting division of the region. Upon
receipt of the RCIDDO, the Regional Office draws a journal voucher, debiting the account obligation (liquidated or
unliquidated obligation, whichever is applicable), and crediting the account Treasury Check Account for Agency
(TCAA). The RCIDDO is recorded in the Journal of Checks Issued by Deputized Disbursing Officers (JCIDDO) and
posted in the general ledger at the end of each month.
Simultaneous with the flow of the RCIDDO, the ROAs are summarized in the Reports of Obligations Incurred (ROI) in
the District Office, once or twice a month, depending upon the volume of transactions. The ROI is then submitted to
the Regional Office. Upon receipt of the ROI, the accountant of the Regional Office draws a journal voucher taking up
the following entry: debiting the appropriation allotted (0-90-000) and crediting the obligation incurred (0-82-000). This
is recorded in the general voucher and posted to the general ledger at the end of each month. The journal voucher is
prepared, closing the account 8-70-709 to 8-71-100-199 at the end of each month. It is also recorded and posted to
the general ledger. At the end of the month, the balances of each account shown in the general ledger are
summarized in a statement called the trial balance. The trial balance is submitted to the MPH Central Office in Manila
where it is consolidated with other trial balances submitted by other regional offices.
xxxx
The elaborate accounting procedure described above with its system of controls was set up obviously to make sure
that government funds are properly released, disbursed and accounted for. In the hands of untrustworthy guardians of
the public purse, however, it proved to be inadequate. There were loopholes which an unscrupulous person adroit in
government accounting could take advantage of to surreptitiously draw enormous sums of money from the
government.
Sometime in February, 1977, accused Rolando Mangubat (Chief Accountant), Delia Preagido (Accountant III), Jose
Sayson (Budget Examiner), and Edgardo Cruz (Clerk II), all of MPH Region VII, met at the Town and Country
Restaurant in Cebu City and hatched an ingenious plan to siphon off large sums of money from government coffers.
Mangubat had found a way to withdraw government money through the use of fake LAAs, vouchers and other
documents and to conceal traces thereof with the connivance of other government officials and employees. In fine, the
fraudulent scheme involved the splitting of LAAs and RSEs so that the amount covered by each general voucher is
less than P50,000.00 to do away with the approval of the Regional Auditor; the charging of disbursements to
unliquidated obligations due the previous year to provide the supposed source of funds; and the manipulation of the
books of account by negation or adjustment, i.e., the cancellation of checks through journal vouchers to conceal
disbursements in excess of the cash disbursement ceiling (CDC), so as not to reflect such disbursements in the trial
balances submitted to the Regional Office.
Mangubat enticed Preagido, Cruz and Sayson to join him. All three agreed to help him carry out his plan. They typed
the fake LAAs during Saturdays. Cruz and Sayson also took charge of negotiating or selling the fake LAAs to
contractors at 26% of the gross amount. Preagido on her part manipulated the General Ledger, Journal Vouchers and
General Journal thru negative entries to conceal the illegal disbursements. Thus, in the initial report of the auditors
(Exhibit D), it was discovered that the doubtful allotments and other anomalies escaped notice due to the following
manipulations:
"The letter-advices covering such allotments (LAA) were generally not signed by the Finance Officer nor recorded in
the books of accounts. Disbursements made on the basis of these fake LAAs were charged to the unliquidated
Obligations (Account 8-81-400), although the obligations being paid were not among those certified to the unliquidated
obligations (Account 8-81-400) at the end of the preceding year. To conceal the overcharges to authorized allotments,
account 8-81-400 and the excess of checks issued over authorized cash disbursements ceiling, adjustments were
prepared monthly through journal vouchers to take up the negative debit to Account 8-81-400 and a negative credit to
the Treasury Checking Account for Agencies Account 8-70-790. These journal vouchers in effect cancelled the
previous entry to record the disbursements made on the basis of the fake LAAs. Thus, the affected accounts
(Accounts 8-81-400 and 8-70-790), as appearing in the trial balance would not show the irregularity. The checks,
however, were actually issued."
The four formed the nucleus of the nefarious conspiracy. Other government employees, tempted by the prospect of
earning big money, allowed their names to be used and signed spurious documents.
Although the anomalies had been going on for sometime (February 1977 to June 1978), the PNB and Bureau of
Treasury had no inkling about it until the NBI busted the illegal operations. (Some of the recipients of the stolen funds
spent lavishly and bought two cars at a time). The reason for this is that, at that time, the PNB and Bureau of Treasury
were not furnished copy of the mother CDC and the local branch of the PNB did not receive independent advice from
the PNB head office in Manila. There were no deposits of money made with the PNB from which withdrawals could be
charged. Only CDCs were presented to it, and not knowing that some of the CDCs were fake, the PNB branch paid
out the checks drawn against them. The bank had also no way of knowing what amount was appropriated for the
district; consequently, it did not know if the limit had already been exceeded. Only an insider steep in government
accounting, auditing and banking procedures, particularly their flaws and loopholes, could have pulled off such an
ingenious and audacious plan.
xxxx
Focusing our attention now on the anomalies committed in the Cebu First District Engineering District, hereinafter
referred to as the Cebu First HED for brevity, the Court finds that the same pattern of fraud employed in the other
highway engineering districts in MPH Region VII was followed. The Cebu First HED received from Region VII thirty-
four Letters of Advice of Allotment (LAAs) in the total sum of P4,734,336.50 and twenty-nine (29) corresponding Sub-
Advices of Cash Disbursement Ceiling (SACDCs), amounting to P5,160,677.04 for the period January 1, 1977 to
December 31, 1977. But apart from this, the Cebu First HED appears to have also received for the same period
another set of eighty-four (84) LAAs amounting to P4,680,694.76 which however, could not be traced to any Sub-
Advice of Allotment (SAA) or matched to the Advices of Cash Disbursement Ceiling (ACDCs) received from the MPH
and Regional Office. This is highly irregular and not in consonance with accounting procedures.
It was also made to appear that the payments were made for alleged prior year’s obligations and chargeable to
Account 8-81-400, obviously because, they were not properly funded. Furthermore, the list of projects in Region VII for
1977 showed that Cebu First HED completed rehabilitation and/or improvement of roads and bridges in its districts
from February to May 1977, with expenditures amounting to P613,812.00. On the other hand, the expenditures for
barangay roads in the same district in 1977 amounted to P140,692.00, and these were all completed within the period
from November to December, 1977. These completed projects were properly funded by legitimate LAAs and CDCs in
the total amount of only P754,504.00. However, an additional amount of P3,839,810.74 was spent by the Cebu First
HED for maintenance of roads and bridges for the same year (1977) but the same could not be traced to any
authoritative document coming from the MPH.
xxxx
A total of 132 General Vouchers, emanating from fake LAAs and ACDCs, were traced back to Rolando Mangubat,
Regional Accountant of Region VII and Adventor Fernandez, Regional Highway Engineer, also of Region VII. Those
LAAs and ACDCs became the vehicles in the disbursement of funds amounting to P3,839,810.74, through the
vouchers purportedly issued for the purchase and delivery of the aforementioned materials allegedly used for the
maintenance and repair of the national highways within the Cebu First HED. Despite the enormous additional
expenditure of P3,839,810.74, the roads and bridges in the district, as found out by the NBI, did not show any
improvement. As testified to by several barangay captains, the road maintenance consisted merely of spreading
anapog or limestone on potholes of the national highway.
Obviously, the vouchers for payments of alleged maintenance of roads and bridges in the additional amount of
P3,839,810.74 were prepared for no other purpose than to siphon the said amount from the government coffer into the
pockets of some officials and employees of Region VII and the Cebu First HED, as well as the suppliers and
contractors who conspired and confederated with them.
The nuclei of this massive conspiracy, namely: Rolando Mangubat, Jose Sayson, and Edgardo Cruz, all of MPH
Region VII, were found guilty in all 119 counts and were accordingly sentenced by the SB. The other conniver, Delia
Preagido, after being found guilty in some of the cases, became a state witness in the remainder. On the basis of her
testimony and pertinent documents, Informations were filed, convictions were obtained, and criminal penalties were
imposed on the rest of the accused.
On the other hand, petitioners were both Civil Engineers of the MPH assigned to the Cebu First Highway Engineering
District. Petitioner Fernan, Jr. was included among the accused in Criminal Case Nos. 2879, 2880, 2881, 2885, 2914,
and 2918 allegedly for having signed six (6) tally sheets or statements of deliveries of materials, used as bases for the
preparation of the corresponding number of general vouchers. Fund releases were made to the suppliers, contractors,
and payees based on these general vouchers.
The Information against Fernan, Jr. in SB Criminal Case No. 2879 reads as follows:
The undersigned accuses Rocilo Neis, Rolando Mangubat, Adventor Fernandez, Angelina Escaño, Delia Preagido,
Camilo de Letran, Manuel de Veyra, Heracleo Faelnar, Basilisa Galvan, Matilde Jabalde, Josefina Luna, Jose Sayson,
Edgardo Cruz, Leonila del Rosario, Engracia Escobar, Abelardo Cardona, Leonardo Tordecilla, Agripino
Pagdanganan, Ramon Quirante, Mariano Montera, Mariano Jarina, Leo Villagonzalo, Asterio Buqueron, Zosimo
Mendez, Simon Fernan, Jr. and Juliana de los Angeles for estafa thru falsification of public and commercial
documents, committed as follows:
That on, about and during the period from December 1, 1976 up to January 31, 1977, both dates inclusive, in the City
of Cebu and in Cebu Province, and within the jurisdiction of this Honorable Court, the accused Rocilo Neis, Assistant
District Engineer of Cebu HED I; Rolando Mangubat, the Chief Accountant of Region VII of the Ministry of Public
Highways and Adventor Fernandez, Regional Highway Engineer of same Regional Office, conniving with each other to
defraud the Philippine Government with the indispensable cooperation and assistance of Angelina Escaño, Finance
Officer of Region VII of the Ministry of Public Highways; Delia Preagido, Assistant Chief Accountant of same Regional
Office; Camilo de Letran, Chief Accountant of Cebu I HED; Manuel de Veyra, Regional Director, MPH, Region VII;
Heracleo Faelnar, then Assistant Director MPH Region VII; Basilisa Galvan, Budget Officer, MPH, Region VII; Matilde
Jabalde, Supervising Accounting Clerk, MPH, Region VII; Josefina Luna, Accountant II, MPH, Region VII; Jose
Sayson, Budget Examiner, MPH, Region VII, Edgardo Cruz, Accountant I, MPH, Region VII; Leonila del Rosario, Chief
Finance and Management Service, MPH, Central Office; Engracia Escobar, Chief Accountant, MPH, Central Office;
Abelardo Cardona, Assistant Chief Accountant, MPH, Central Office; Leonardo Tordecilla, Supervising Accountant,
MPH, Central Office; Agripino Pagdanganan, Budget Officer III, MPH, Central Office; Ramon Quirante, Property
Custodian of Cebu I HED; Mariano Montera, Senior Civil Engineer Engineer of Cebu I HED; Mariano Jarina, Clerk in
the Property Division of Cebu I HED; Leo Villagonzalo, Auditor’s Aide of Cebu I HED; Zosimo Mendez, Auditor of Cebu
I HED; Asterio Buqueron, Administrative Officer of Cebu I HED; Simon Fernan, Jr., Civil Engineer of Cebu I HED and
Juliana de los Angeles, an alleged supplier, all of whom took advantage of their official positions, with the exception of
Juliana de los Angeles, mutually helping each other did then and there willfully, unlawfully and feloniously falsify and/or
cause the falsification of the following documents, to wit:
1. Request for Allocation of Allotment
2. Letter of Advice of Allotment
3. Advice of Cash Disbursement Ceiling
4. General Voucher No. B-15
5. Check No. 9933064
6. Abstract of Bids
7. Purchase Order
8. Statement of Delivery
9. Report of Inspection
10. Requisition for Supplies or Equipment
11. Trial Balance
by making it appear that Regional Office No. VII of the Ministry of Public Highways regularly issued an advice of cash
disbursement ceiling (ACDC) and the corresponding letter of advice of allotment (LAA) to cover the purchase of 1,400
cu. m. of item 1087 for use in the repair of the Cebu Hagnaya Wharf road from Km. 50.30 to Km. 60.00, when in truth
and in fact, as all the accused knew, the same were not true and correct; by making it appear in the voucher that funds
were available and that there were appropriate requests for allotments (ROA) to pay the aforesaid purchase; that a
requisition for said item was made and approved; that a regular bidding was held; that a corresponding purchase
order was issued in favor of the winning bidder; that the road construction materials were delivered, inspected and
used in the supposed project and that the alleged supplier was entitled to payment when in truth and in fact, as all the
accused know, all of the foregoing were false and incorrect and because of the foregoing falsifications, the above-
named accused were able to collect from the Cebu I HED the total amount of TWENTY EIGHT THOUSAND PESOS
(P28,000.00), Philippine Currency, in payment of the non-existing deliveries; that the said amount of P28,000.00 was
not reflected in the monthly trial balance submitted to the Central Office by Region VII showing its financial condition
as the same was negated thru the journal voucher, as a designed means to cover-up the fraud; and the accused, once
in possession of the said amount, misappropriated, converted and misapplied the same for their personal needs, to
the damage and prejudice of the Philippine Government in the total amount of TWENTY EIGHT THOUSAND PESOS
(P28,000.00), Philippine Currency.
CONTRARY TO LAW.
The Informations in the six (6) cases involving Fernan, Jr. were essentially identical save for the details as highlighted
in boldface above. For ease of reference, Fernan, Jr.’s criminal cases are detailed below:

Criminal Dates of Main Documents Items Allegedly Purchased Amount of


Case No. Commission Falsified Fraud

2879 December 1, 1976 1. General Voucher 1,400 cu. m. of item 108 for use in the repair of the PhP
up to January 31, No. B-15; Cebu Hagnaya Wharf road from Km. 50.30 to Km. 28,000.00
1977 2. Check No. 60.00
9933064;

2880 December 1, 1976 1. Request for 1,400 cu. m. of item 108 for use in the repair of the PhP
up to January 31, Allocation of Bogo-Curva-Medellon road from Km. 110.00 to 28,000.00
1977 Allotment 101-12- Km. 119.00
105-76;
2. General Voucher
No. B-55;
3. Check No.
9933104;

2881 January 2, 1977 1. Request for Approximately 1,500 cu. m. of item 108 for use in PhP
up to February 28, Allocation of the repair and rehabilitation of damaged roads and 31,000.00
1977 Allotment 101-2-56- bridges by Typhoon Aring at the Tabogon-Bogo
77; provincial road from Km. 92 to Km. 98
2. General Voucher
No. B-245;
3. Check No.
9933294;

2885 January 2, 1977 1. Request for materials for use in the repair and rehabilitation of PhP
up to January 31, Allocation of the Daan-Bantayan road from Km. 127.00 to Km. 30,000.00
1977 Allotment 101-12- 136
112-76;
2. General Voucher
No. B-76;
3. Check No.
9933125;

2914 October 1, 1977 1. General Voucher 1,200 cu. m. of item 108 for use in the PhP
up to November No. B-927; rehabilitation of the Cajel-Lugo, Barbon barangay 27,000.00
30, 1977 2. Check No. road
9403425;

2918 January 2, 1977 1. General Voucher 1,500 cu. m. of item 108 for the rehabilitation of PhP
up to February 28, No. B-107; the Cebu North Hagnaya Wharf road from Km. 71 30,000.00
1977 2. Check No. to Km. 76
9933157;

On the other hand, petitioner Torrevillas was one of the accused in Criminal Case Nos. 2855, 2856, 2858, 2859, 2909,
2910, 2914, 2919, and 2932.
The Information against Torrevillas in SB Criminal Case No. 2855 reads as follows:
The undersigned accuses Rocilo Neis, Rolando Mangubat, Adventor Fernandez, Angelina Escaño, Delia Preagido,
Camilo de Letran, Manuel de Veyra, Heracleo Faelnar, Basilisa Galvan, Matilde Jabalde, Josefina Luna, Jose Sayson,
Edgardo Cruz, Leonila del Rosario, Engracia Escobar, Abelardo Cardona, Leonardo Tordecilla, Agripino
Pagdanganan, Ramon Quirante, Jorge de la Peña, Leo Villagonzalo, Asterio Buqueron, Expedito Torrevillas, Mariano
Montera and Rufino V. Nuñez for estafa thru falsification of public and commercial documents, committed as follows:
That on, about and during the period from June 1, 1977 up to June 30, 1977, both dates inclusive, in the City of Cebu
and in Cebu Province, and within the jurisdiction of this Honorable Court, the accused Rocilo Neis, Assistant District
Engineer of Cebu HED I; Rolando Mangubat, the Chief Accountant of Region VII of the Ministry of Public Highways
and Adventor Fernandez, Regional Highway Engineer of same Regional Office, conniving with each other to defraud
the Philippine Government with the indispensable cooperation and assistance of Angelina Escaño, Finance Officer of
Region VII of the Ministry of Public Highways; Delia Preagido, Assistant Chief Accountant of same Regional Office;
Camilo de Letran, Chief Accountant of Cebu I HED; Manuel de Veyra, Regional Director, MPH, Region VII; Heracleo
Faelnar, then Assistant Director MPH Region VII; Basilisa Galvan, Budget Officer, MPH, Region VII; Matilde Jabalde,
Supervising Accounting Clerk, MPH, Region VII; Josefina Luna, Accountant II, MPH, Region VII; Jose Sayson, Budget
Examiner, MPH, Region VII, Edgardo Cruz, Accountant I, MPH, Region VII; Leonila del Rosario, Chief Finance and
Management Service, MPH, Central Office; Engracia Escobar, Chief Accountant, MPH, Central Office; Abelardo
Cardona, Assistant Chief Accountant, MPH, Central Office; Leonardo Tordecilla, Supervising Accountant, MPH,
Central Office; Agripino Pagdanganan, Budget Officer III, MPH, Central Office; Ramon Quirante, Property Custodian
of Cebu I HED; Jorge de la Peña, Auditor of Cebu I HED; Leo Villagonzalo, Auditor’s Aide of Cebu I HED; Asterio
Buqueron, Administrative Officer of Cebu I HED; Expedito Torrevillas, representative of the Engineer’s Office, Cebu I
HED; Mariano Montera, Senior Civil Engineer Engineer of Cebu I HED; and Rufino V. Nuñez, an alleged supplier, all
of whom took advantage of their official positions, with the exception of Rufino V. Nuñez, mutually helping each other
did then and there willfully, unlawfully and feloniously falsify and/or cause the falsification of the following documents,
to wit:
1. Request for Allocation of Allotment – 101-10-186-76; 10-190-76; 10-192-76; 10-188-76; 10-180-76
2. Letter of Advice of Allotment
3. Advice of Cash Disbursement Ceiling
4. General Voucher No. B-613
5. Check No. 9403099
6. Abstract of Bids
7. Purchase Order
8. Statement of Delivery
9. Report of Inspection
10. Requisition for Supplies or Equipment
11. Trial Balance
by making it appear that Regional Office No. VII of the Ministry of Public Highways regularly issued an advice of cash
disbursement ceiling (ACDC) and the corresponding letter of advice of allotment (LAA) to cover the purchase of
153.63 m. t. of item 3108 for use in asphalting of the Toledo-Tabuelan road at Km. 108.34 to Km. 109.52, when in truth
and in fact, as all the accused knew, the same were not true and correct; by making it appear in the voucher that funds
were available and that there were appropriate requests for allotments (ROA) to pay the aforesaid purchase; that a
requisition for said item was made and approved; that a regular bidding was held; that a corresponding purchase
order was issued in favor of the winning bidder; that the road construction materials were delivered, inspected and
used in the supposed project and that the alleged supplier was entitled to payment when in truth and in fact, as all the
accused know, all of the foregoing were false and incorrect and because of the foregoing falsifications, the above-
named accused were able to collect from the Cebu I HED the total amount of FORTY EIGHT THOUSAND FOUR
HUNDRED THIRTY ONE PESOS & 85/100 (P48,431.85), Philippine Currency, in payment of the non-existing
deliveries; that the said amount of P48,431.85 was not reflected in the monthly trial balance submitted to the Central
Office by Region VII showing its financial condition as the same was negated thru the journal voucher, as a designed
means to cover-up the fraud; and the accused, once in possession of the said amount, misappropriated, converted
and misapplied the same for their personal needs, to the damage and prejudice of the Philippine Government in the
total amount of FORTY EIGHT THOUSAND FOUR HUNDRED THIRTY ONE PESOS & 85/100 (P48,431.85),
Philippine Currency.
CONTRARY TO LAW.
The Torrevillas cases were substantially the same save for the details highlighted in the aforequoted typical accusatory
pleading. For ease of reference, Torrevillas’ criminal cases are particularized as follows:

Criminal Dates of Main Documents Falsified Items Allegedly Purchased Amount of


Case No. Commission Fraud

2855 June 1, 1977 up to 1. Request for Allocation of 153.63 m. t. of item 310 for use in PhP
June 30, 1977 Allotment 101-10-186-76; 10- asphalting of the Toledo-Tabuelan road 48,431.85
190-76; 10-192-76; 10-188- from Km. 108.34 to Km. 109.52
76; 10-180-76;
2. General Voucher No. B-
613;
3. Check No. 9403099;

2856 June 1, 1977 up to 1. Request for Allocation of 153.76 m. t. of item 310 for use in the PhP
June 30, 1977 Allotment 101-10-15-76; 9- asphalting of the Toledo-Tabuelan road 48,472.84
201-76; 8-152-76; 8-153- from Km 108.34 to Km. 109.52
76;9-181-76; 9-184-76
2. General Voucher No. B-
619;
3. Check No. 9403105;

2858 June 1, 1977 up to 1. Request for Allocation 151.35 m. t. of item 310 for use in the PhP
July 31, 1977 Allotment 101-6-234-76; 6- asphalting of the Toledo-Tabuelan road 47,713.09
237-76; 6-239-76; 6-241-76; from Km. 108.34 to Km. 109.52
6-240-76
2. General Voucher No. B-
629;
3. Check No. 9403115;

2859 June 1, 1977 up to 1. Request for Allocation of 110.01 m. t. of item 310 for use in PhP
June 31, 1977 Allotment 101-7-63-76; 8- asphalting of the Toledo-Tabuelan road 34,680.65
102-76; 8-121-76 from Km. 108.34 to Km.109.52
2. General Voucher No. B-
631;
3. Check No. 9403117;

2909 September 1, 1. General Voucher No. B- 1,200 cu.m. of item 108 for use in the PhP
1977 up to 928; rehabilitation of the Buanoy-Cantibas, 27,900.00
November 30, 2. Check No. 9403426; Balaban barangay road
1977

2910 September 1, 1. General Voucher No. B- 1,200 cu. m. of item 108 for use in the PhP
1977 up to 929; rehabilitation of the Magay-Canamukan, 27,900.00
November 30, 2. Check No. 9403427; Compostela barangay road
1977

2914 October 1, 1977 1. General Voucher No. B- 1,200 cu. m. of item 108 for use in the PhP
up to November 927; rehabilitation of the Cajel-Lugo, Barbon 27,000.00
30, 1977 2. Check No. 9403425; barangay road

2919 January 2, 1977 1. General Voucher No. B- 1,550 cu. m. of item 108 for use in the PhP
up to February 28, 244; repair and rehabilitation of damaged 31,000.00
1977 2. Check No. 9933293; roads and bridges at the Toledo-
Tabuelan national road from Km. 71 to
Km. 83

2932 June 1, 1977 up to 1. Request for Allocation of 250 gals of aluminum paint 324 gals of PhP
July 31, 1977 Allotment 101-7-83-76; 7-84- red lead paint for use in the maintenance 44,762.58
76; 7-124-76; 8-153-76; 8- of national roads and bridges
170-76;
2. General Voucher B-643;
3. Check No. 9403130;

The Sandiganbayan’s Ruling


The anti-graft court was fully convinced of the guilt of petitioner Fernan, Jr.; and in its December 4, 1997 Decision, it
found him criminally liable in the six (6) cases against him, thus:
In Criminal Case No. 2879, the Court finds accused JOSE SAYSON, RAMON QUIRANTE, MARIANO MONTERA,
ZOSIMO MENDEZ, MARIANO JARINA and SIMON FERNAN, Jr., GUILTY beyond reasonable doubt as co-principals
in the crime of Estafa thru falsification of Public Documents as defined and penalized in Articles 318 and 171, in
relation to Article 48 of the Revised Penal Code, and there being no modifying circumstances in attendance, hereby
sentences each of them to an indeterminate penalty ranging from six (6) years of prision correccional, as minimum, to
ten (10) years, eight (8) months and one (1) day of prision mayor, as maximum, with the accessory penalties provided
by law, to pay a fine of Three Thousand Five Hundred Pesos (P 3,500.00); to indemnify, jointly and severally the
Republic of the Philippines in the amount of Twenty Eight Thousand Pesos (P 28,000.00); and, to pay their
proportionate share of the costs.9 (Emphasis supplied.)
In Criminal Case No. 2880, the Court finds accused CAMILO DE LETRAN, JOSE SAYSON, RAMON QUIRANTE,
MARIANO MONTERA, ZOSIMO MENDEZ, and SIMON FERNAN, Jr., GUILTY beyond reasonable doubt as co-
principals in the crime of Estafa thru falsification of Public Documents as defined and penalized in Articles 318 and
171, in relation to Article 48 of the Revised Penal Code, and there being no modifying circumstances in attendance,
hereby sentences each of them to an indeterminate penalty ranging from six (6) years of prision correccional, as
minimum, to ten (10) years, eight (8) months and one (1) day of prision mayor, as maximum, with the accessory
penalties provided by law, to pay a fine of Three Thousand Five Hundred Pesos (P 3,500.00); to indemnify, jointly and
severally the Republic of the Philippines in the amount of Twenty Eight Thousand Pesos (P 28,000.00); and, to pay
their proportionate share of the costs.10 (Emphasis supplied.)
In Criminal Case No. 2881, the Court finds accused CAMILO DE LETRAN, JOSE SAYSON, RAMON QUIRANTE,
ZOSIMO MENDEZ and SIMON FERNAN, Jr., GUILTY beyond reasonable doubt as co-principals in the crime of
Estafa thru falsification of Public Documents as defined and penalized in Articles 318 and 171, in relation to Article 48
of the Revised Penal Code, and there being no modifying circumstances in attendance, hereby sentences each of
them to an indeterminate penalty ranging from six (6) years of prision correccional, as minimum, to ten (10) years,
eight (8) months and one (1) day of prision mayor, as maximum, with the accessory penalties provided by law, to pay
a fine of Three Thousand Five Hundred Pesos (P 3,500.00); to indemnify, jointly and severally the Republic of the
Philippines in the amount of Thirty One Thousand Pesos (P 31,000.00); and, to pay their proportionate share of the
costs.11 (Emphasis supplied.)
In Criminal Case No. 2885, the Court finds accused CAMILO DE LETRAN JOSE SAYSON, RAMON QUIRANTE,
ZOSIMO MENDEZ and SIMON FERNAN, Jr., GUILTY beyond reasonable doubt as co-principals in the crime of
Estafa thru falsification of Public Documents as defined and penalized in Articles 318 and 171, in relation to Article 48
of the Revised Penal Code, and there being no modifying circumstances in attendance, hereby sentences each of
them to an indeterminate penalty ranging from six (6) years of prision correccional, as minimum, to ten (10) years,
eight (8) months and one (1) day of prision mayor, as maximum, with the accessory penalties provided by law, to pay
a fine of Three Thousand Five Hundred Pesos (P 3,500.00); to indemnify, jointly and severally the Republic of the
Philippines in the amount of Thirty Thousand Pesos (P 30,000.00); and, to pay their proportionate share of the
costs.12 (Emphasis supplied.)
In Criminal Case No. 2914, the Court finds accused CAMILO DE LETRAN, JOSE SAYSON, RAMON
QUIRANTE, EXPEDITO TORREVILLAS and SIMON FERNAN, Jr., GUILTY beyond reasonable doubt as co-principals
in the crime of Estafa thru falsification of Public Documents as defined and penalized in Articles 318 and 171, in
relation to Article 48 of the Revised Penal Code, and there being no modifying circumstances in attendance, hereby
sentences each of them to an indeterminate penalty ranging from six (6) years of prision correccional, as minimum, to
ten (10) years, eight (8) months and one (1) day of prision mayor, as maximum, with the accessory penalties provided
by law, to pay a fine of Three Thousand Five Hundred Pesos (P 3,500.00); to indemnify, jointly and severally the
Republic of the Philippines in the amount of Twenty Seven Thousand Pesos (P 27,000.00); and, to pay their
proportionate share of the costs.13 (Emphasis supplied.)
In Criminal Case No. 2918, the Court finds accused CAMILO DE LETRAN, JOSE SAYSON, RAMON QUIRANTE,
ZOSIMO MENDEZ, SIMON FERNAN, Jr. and ISMAEL SABIO, Jr. GUILTY beyond reasonable doubt as co-principals
in the crime of Estafa thru falsification of Public Documents as defined and penalized in Articles 318 and 171, in
relation to Article 48 of the Revised Penal Code, and there being no modifying circumstances in attendance, hereby
sentences each of them to an indeterminate penalty ranging from six (6) years of prision correccional, as minimum, to
ten (10) years, eight (8) months and one (1) day of prision mayor, as maximum, with the accessory penalties provided
by law, to pay a fine of Three Thousand Five Hundred Pesos (P 3,500.00); to indemnify, jointly and severally the
Republic of the Philippines in the amount of Thirty Thousand Pesos (P 30,000.00); and, to pay their proportionate
share of the costs.14 (Emphasis supplied.)
Petitioner Torrevillas suffered the same fate and was convicted in the nine (9) criminal cases, to wit:
In Criminal Case No. 2855, the Court finds accused CAMILO DE LETRAN, JOSE SAYSON, RAMON QUIRANTE,
MARIANO MONTERA, and EXPEDITO TORREVILLAS GUILTY beyond reasonable doubt as co-principals in the
crime of Estafa thru falsification of Public Documents as defined and penalized in Articles 318 and 171, in relation to
Article 48 of the Revised Penal Code, and there being no modifying circumstances in attendance, hereby sentences
each of them to an indeterminate penalty ranging from six (6) years of prision correccional, as minimum, to ten (10)
years, eight (8) months and one (1) day of prision mayor, as maximum, with the accessory penalties provided by law,
to pay a fine of Three Thousand Five Hundred Pesos (P 3,500.00); to indemnify, jointly and severally the Republic of
the Philippines in the amount of Forty Eight Thousand Four Hundred Thirty One Pesos and 85/100 (P 48,431.85); and,
to pay their proportionate share of the costs.15 (Emphasis supplied.)
In Criminal Case No. 2856, the Court finds accused CAMILO DE LETRAN, JOSE SAYSON, RAMON QUIRANTE,
MARIANO MONTERA and EXPEDITO TORREVILLAS GUILTY beyond reasonable doubt as co-principals in the crime
of Estafa thru falsification of Public Documents as defined and penalized in Articles 318 and 171, in relation to Article
48 of the Revised Penal Code, and there being no modifying circumstances in attendance, hereby sentences each of
them to an indeterminate penalty ranging from six (6) years of prision correccional, as minimum, to ten (10) years,
eight (8) months and one (1) day of prision mayor, as maximum, with the accessory penalties provided by law, to pay
a fine of Three Thousand Five Hundred Pesos (P 3,500.00); to indemnify, jointly and severally the Republic of the
Philippines in the amount of Forty Eight Thousand Four Hundred Seventy Two Pesos and 84/100 (P 48,472.84); and,
to pay their proportionate share of the costs.16 (Emphasis supplied.)
In Criminal Case No. 2858, the Court finds accused CAMILO DE LETRAN, JOSE SAYSON, RAMON QUIRANTE,
MARIANO MONTERA and EXPEDITO TOREVILLAS, GUILTY beyond reasonable doubt as co-principals in the crime
of Estafa thru Falsification of Public Documents as defined and penalized in Articles 318 and 171, in relation to Article
48 of the Revised Penal relation to Article 48 of the Revised Penal Code, and there being no modifying circumstances
in attendance, hereby sentences each of them to an indeterminate penalty ranging from six (6) years of prision
correccional, as minimum, to ten (10) years, eight (8) months and one (1) day of prision mayor, as maximum, with the
accessory penalties provided by law, to pay a fine of Three Thousand Five Hundred Pesos (P3,500.00); to indemnify,
jointly and severally the Republic of the Philippines in the amount of Forty Seven Thousand Seven Hundred Thirteen
Pesos and 9/100 (P47,713.09); and, to pay their proportionate share of the costs.
In Criminal Case No. 2859, the Court finds accused CAMILO DE LETRAN, JOSE SAYSON, RAMON QUIRANTE,
MARIANO MONTERA and EXPEDITO TOREVILLAS, GUILTY beyond reasonable doubt as co-principals in the crime
of Estafa thru Falsification of Public Documents as defined and penalized in Articles 318 and 171, in relation to Article
48 of the Revised Penal Code, and there being no modifying circumstances in attendance, hereby sentences each of
them to an indeterminate penalty ranging from six (6) years of prision correccional, as minimum, to ten (10) years,
eight (8) months and one (1) day of prision mayor, as maximum, with the accessory penalties provided by law, to pay
a fine of Three Thousand Five Hundred Pesos (P3,500.00); to indemnify, jointly and severally the Republic of the
Philippines in the amount of Thirty Four Thousand Six Hundred Eighty pesos and 65/100 (P34,680.65); and , to pay
their proportionate share of the costs.17
In Criminal Case No. 2909, the Court finds accused CAMILO DE LETRAN, JOSE SAYSON, RAMON QUIRANTE,
FLORO JAYME and EXPEDITO TORREVILLAS GUILTY beyond reasonable doubt as co-principals in the crime of
Estafa thru falsification of Public Documents as defined and penalized in Articles 318 and 171, in relation to Article 48
of the Revised Penal Code, and there being no modifying circumstances in attendance, hereby sentences each of
them to an indeterminate penalty ranging from six (6) years of prision correccional, as minimum, to ten (10) years,
eight (8) months and one (1) day of prision mayor, as maximum, with the accessory penalties provided by law, to pay
a fine of Three Thousand Five Hundred Pesos (P 3,500.00); to indemnify, jointly and severally the Republic of the
Philippines in the amount of Twenty Seven Thousand Nine Hundred Pesos (P 27,900.00); and, to pay their
proportionate share of the costs.18 (Emphasis supplied.)
In Criminal Case No. 2910, the Court finds accused CAMILO DE LETRAN, JOSE SAYSON, RAMON QUIRANTE,
FLORO JAYME and EXPEDITO TORREVILLAS GUILTY beyond reasonable doubt as co-principals in the crime of
Estafa thru falsification of Public Documents as defined and penalized in Articles 318 and 171, in relation to Article 48
of the Revised Penal Code, and there being no modifying circumstances in attendance, hereby sentences each of
them to an indeterminate penalty ranging from six (6) years of prision correccional, as minimum, to ten (10) years,
eight (8) months and one (1) day of prision mayor, as maximum, with the accessory penalties provided by law, to pay
a fine of Three Thousand Five Hundred Pesos (P 3,500.00); to indemnify, jointly and severally the Republic of the
Philippines in the amount of Twenty Seven Thousand Nine Hundred Pesos (P 27,900.00); and, to pay their
proportionate share of the costs.19 (Emphasis supplied.)
In Criminal Case No. 2914, the Court finds accused CAMILO DE LETRAN, JOSE SAYSON, RAMON
QUIRANTE, EXPEDITO TORREVILLAS and SIMON FERNAN, Jr., GUILTY beyond reasonable doubt as co-principals
in the crime of Estafa thru falsification of Public Documents as defined and penalized in Articles 318 and 171, in
relation to Article 48 of the Revised Penal Code, and there being no modifying circumstances in attendance, hereby
sentences each of them to an indeterminate penalty ranging from six (6) years of prision correccional, as minimum, to
ten (10) years, eight (8) months and one (1) day of prision mayor, as maximum, with the accessory penalties provided
by law, to pay a fine of Three Thousand Five Hundred Pesos (P 3,500.00); to indemnify, jointly and severally the
Republic of the Philippines in the amount of Twenty Seven Thousand Pesos (P 27,000.00); and, to pay their
proportionate share of the costs. (Emphasis supplied.)
In Criminal Case No. 2919, the Court finds accused CAMILO DE LETRAN, JOSE SAYSON, RAMON QUIRANTE,
MARIANO MONTERA, ZOSIMO MENDEZ, EXPEDITO TORREVILLAS and ISMAEL SABIO, Jr. GUILTY beyond
reasonable doubt as co-principals in the crime of Estafa thru falsification of Public Documents as defined and
penalized in Articles 318 and 171, in relation to Article 48 of the Revised Penal Code, and there being no modifying
circumstances in attendance, hereby sentences each of them to an indeterminate penalty ranging from six (6) years
of prision correccional, as minimum, to ten (10) years, eight (8) months and one (1) day of prision mayor, as
maximum, with the accessory penalties provided by law, to pay a fine of Three Thousand Five Hundred Pesos (P
3,500.00); to indemnify, jointly and severally the Republic of the Philippines in the amount of Thirty One Thousand
Pesos (P 31,000.00); and, to pay their proportionate share of the costs. 20 (Emphasis supplied.)
In Criminal Case No. 2932, the Court finds accused CAMILO DE LETRAN, JOSE SAYSON, RAMON QUIRANTE,
MARIANO MONTERA, PEDRITO SEVILLE and EXPEDITO TORREVILLAS GUILTY beyond reasonable doubt as co-
principals in the crime of Estafa thru falsification of Public Documents as defined and penalized in Articles 318 and
171, in relation to Article 48 of the Revised Penal Code, and there being no modifying circumstances in attendance,
hereby sentences each of them to an indeterminate penalty ranging from six (6) years of prision correccional, as
minimum, to ten (10) years, eight (8) months and one (1) day of prision mayor, as maximum, with the accessory
penalties provided by law, to pay a fine of Three Thousand Five Hundred Pesos (P 3,500.00); to indemnify, jointly and
severally the Republic of the Philippines in the amount of Forty Four Thousand Seven Hundred Sixty Two Pesos and
58/100 (P 44,762.58); and, to pay their proportionate share of the costs. 21 (Emphasis supplied.)
Petitioners made the supplication before the court a quo to recall the adverse judgments against them which was
declined by the August 29, 2000 SB Resolution.
Firm in their belief that they were innocent of any wrongdoing, they now interpose the instant petition to clear their
names.
The Issues
Petitioners put forward two (2) issues, viz:
I
The honorable Sandiganbayan totally ignored petitioners constitutional right to be presumed innocent when it
ruled that the burden of convincing the hon. Court that the deliveries of the road materials attested to have
been received by them were not ghost deliveries rests with the accused and not with the prosecution.
II
The honorable sandiganbayan erred in convicting petitioners as co-conspirators despite the prosecution’s
failure to specifically prove beyond reasonable doubt the facts and circumstances that would implicate them
as co-conspirators and justify their conviction.
The Court’s Ruling
We are not persuaded to nullify the verdict.
Petitioners’ guilt was established beyond reasonable doubt
Petitioners mainly asseverate that their guilt was not shown beyond a peradventure of doubt and the State was unable
to show that government funds were illegally released based on alleged ghost deliveries in conjunction with false or
fake tally sheets and other documents which they admittedly signed.
We are not convinced.
Our Constitution unequivocally guarantees that in all criminal prosecutions, the accused shall be presumed innocent
until the contrary is proved.22 This sacred task unqualifiedly means proving the guilt of the accused beyond a
reasonable doubt. Definitely, "reasonable doubt" is not mere guesswork whether or not the accused is guilty, but such
uncertainty that "a reasonable man may entertain after a fair review and consideration of the evidence." Reasonable
doubt is present when
after the entire comparison and consideration of all the evidences, leaves the minds of the [judges] in that condition
that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge; a certainty that
convinces and directs the understanding, and satisfies the reason and judgment of those who are bound to act
conscientiously upon it.23
A thorough scrutiny of the records is imperative to determine whether or not reasonable doubt exists as to the guilt of
accused Fernan, Jr. and Torrevillas.
Petitioners were charged with the complex crime of estafa through falsification of public documents as defined and
penalized under Articles 318 and 171 in relation to Article 48 of the Revised Penal Code, thus:
ART. 318. Other deceits. – The penalty of arresto mayor and a fine of not less than the amount of the damage caused
and not more than twice such amount shall be imposed upon any person who shall defraud or damage another by any
deceit not mentioned in the preceding articles of this chapter.
ART. 171. Falsification by public officer, employee; or notary or ecclesiastical minister. – The penalty of prision mayor
and a fine not to exceed 5,000 pesos shall be imposed upon any public officer, employee, or notary who, taking
advantage of his official position, shall falsify a document by committing any of the following acts:
xxxx
4. Making untruthful statements in a narration of facts;
ART. 48. Penalty for complex crimes. – When a single act constitutes two or more grave or less grave felonies, or
when an offense is a necessary means for committing the other, the penalty for the most serious crime shall be
imposed, the same to be applied in its maximum period.
The complex crime is pruned into the following essential elements:
For estafa
1. Deceit: Deceit is a specie of fraud. It is actual fraud, and consists in any false representation or contrivance
whereby one person overreaches and misleads another, to his hurt. There is deceit when one is misled, either
by guile or trickery or by other means, to believe to be true what is really false. 24
2. Damage: Damage may consist in the offended party being deprived of his money or property as a result of
the defraudation, disturbance in property right, or temporary prejudice. 25
For falsification
1. That the offender is a public officer, employee, or notary public;
2. That he takes advantage of his official position;
3. That he falsifies a document by committing any of the acts defined under Article 171 of the Revised Penal
Code.26
Before the SB, a Memorandum of Agreement (MOA) dated September 1, 1988 was entered into between the State
and the accused with the following stipulations and admissions:
(1) To expedite the early termination of the instant cases and abbreviate the testimony of Mrs. Delia Preagido,
the prosecution and the accused have agreed to reproduce and adopt as the testimony of Preagido in the
instant cases, her previous testimonies in Criminal Cases Nos. 889, etc. (Mandaue City HED ’78 cases), on
May 18 and 19, 1982 and in Criminal Cases Nos. 1446-1789, etc. (Danao City HED ’77 cases) on November
10, 1987 and March 14, 1988, both on direct and cross examination x x x without prejudice to whatever direct
and/or cross examination question, that may be propounded by the Prosecution and the accused on said
State witness, which questions will only be limited to the fake or irregular LAA’s and SACDC’s issued to Cebu I
HED in 1977, the sale of such fake or irregular LAA’s and SACDC’s issued to Cebu I HED in 1977, the sale of
such fake or irregular LAA’s and SACDC’s in said engineering district in the said year and the participation of
the accused thereon;
(2) That in the event Mrs. Delia Preagido is presented to testify as a State witness in the instant cases without
reproducing and adopting her previous testimonies in the Mandaue City HED ’78 and the Danao City HED ’77
cases, she will identify documents and exhibits which have been previously marked and identified by other
prosecution witness x x x.
(3) That in the previous testimonies of Mrs. Delia Preagido in the Mandaue City HED ’78 and the Danao City
HED ’77 cases, she identified twenty-six separate lists containing names of officials and employees of MPH,
Regional Office No. VII, of the various Highways Engineering Districts in MPH, Region VII, and the MPH
Central Office who have allegedly received money or various sums from 1977 to 1978 out of the proceeds or
sales of fake LAA’s in 1977 and 1978 and, therefore, to obviate Mrs. Preagido’s previous testimony of these
lists, the Prosecution hereby reproduces and adopts specifically such testimony and the markings of the lists,
i.e., Exhibits ‘KKK’, ‘KKK-1’ to ‘KKK-25’ in the Mandaue City HED ’78 cases and Exhibits ‘0000’, ‘0000-1’ to
‘0000-25’ in the Danao City HED ’77 cases, substituted or re-marked accordingly as ‘Exhibits ‘LL’, ‘LL-1’ to
‘LL-25’ in the instant cases.27
As a result of this MOA, the testimony of state witness Preagido on the modus operandi of the conspirators, or the
unique and distinct method of procedure by which the malversation of public funds in Region VII of the MPH was
perpetrated and accomplished, dealt a major blow to the defenses raised by petitioners. Preagido’s vital testimony,
wherein she identified the methods, documents, exhibits, and other pertinent papers that led to the crafting of fake
Letters of Advice of Allotment (LAAs),28 general vouchers, disbursement of funds for non-existent projects, general
vouchers, and other documents, was not even successfully refuted or overturned by petitioners.
Preagido confirmed and admitted under oath that the illegal disbursement of public funds pertained to non-existent
projects and was supported by fake LAAs, fake general vouchers, and other pertinent papers that were also falsified.
The fake LAAs and general vouchers were, in turn, supported by signed tally sheets that pertained to alleged ghost
deliveries of road construction materials for non-existent or illegal projects.
The fake tally sheets, delivery receipts, reports of inspection, requests for supplies and materials, and other related
documents signed on separate occasions by petitioners, which were attached as supporting documents to
corresponding general vouchers; the alleged amounts and quantities of road construction materials delivered; and the
specific fake general vouchers, checks, and other pertinent documents issued which led to the illegal disbursement of
funds are summarized as follows:
Petitioner Fernan, Jr.
Criminal Specific Main Items Allegedly Purchased FAKE LAAs Amount of
Case No. Exhibits Documents that Fraud
Falsified authorized
purchase
2879 T-86-f-1, 1. General 1,400 cu. m. of item 108 for use in Not numbered PhP
etc. (Tally Voucher No. B- the repair of the Cebu Hagnaya contrary to 28,000.00
Sheets) 15; Wharf road from Km. 50.30 to Km. official
2. Check No. 60.00 procedure
9933064;
2880 T-87-f-1, 1. Request for 1,400 cu. m. of item 108 for use in Not numbered PhP
etc. (Tally Allocation of the repair of the Bogo-Curva- contrary to 28,000.00
Sheets) Allotment 101- Medellon road from Km. 110.00 to official
12-105-76; Km. 119.00 procedure
2. General
Voucher No. B-
55;
3. Check No.
9933104;
2881 T-104-g-1, 1. Request for Approximately 1,500 cu. m. of item Not numbered PhP
etc. (Tally Allocation of 108 for use in the repair and contrary to 31,000.00
Sheets) Allotment 101-2- rehabilitation of damaged roads official
56-77; and bridges by Typhoon Aring at procedure
2. General the Tabogon-Bogo provincial road
Voucher No. B- from Km. 92 to Km. 98
245;
3. Check No.
9933294;
2885 T-89-f-1, 1. Request for Materials for use in the repair and Not numbered PhP
etc. (Tally Allocation of rehabilitation of the Daan-Bantayan contrary to 30,000.00
Sheets) Allotment 101- road from Km. 127.00 to Km. 136 official
12-112-76; procedure
2. General
Voucher No. B-
76;
3. Check No.
9933125;
2914 T-115-g-1, 1. General 1,200 cu. m. of item 108 for use in PhP
etc. (Tally Voucher No. B- the rehabilitation of the Cajel-Lugo, 27,000.00
Sheets) 927; Barbon barangay road
2. Check No.
9403425;
2918 T-116-f-1, 1. General 1,500 cu. m. of item 108 for the Not numbered PhP
etc. (Tally Voucher No. B- rehabilitation of the Cebu North contrary to 30,000.00
Sheets) 107; Hagnaya Wharf road from Km. 71 official
2. Check No. to Km. 76 procedure
9933157;
Petitioner Torrevillas
Criminal Specific Main Documents Items Allegedly FAKE LAAs Amount of Fraud
Case Exhibits Falsified Purchased that
No. authorized
purchase
2855 T-33-f (Delivery 1. Request for 153.63 m. t. of item 310 Not PhP 48,431.85
Receipt); T-33- Allocation of for use in asphalting of numbered
f-1 (Daily Tally Allotment 101-10- the Toledo-Tabuelan contrary to
Sheet); 186-76; 10-190- road from Km. 108.34 to official
76; 10-192-76; 10- Km. 109.52
procedure
188-76; 10-180-
76;
2. General
Voucher No. B-
613;
3. Check No.
9403099;
2856 T-34-f (Delivery 1. Request for 153.76 m. t. of item 310 Not PhP 48,472.84
Receipt); T-34- Allocation of for use in the asphalting numbered
f-1 (Daily Tally Allotment 101-10- of the Toledo-Tabuelan contrary to
Sheet); 15-76; 9-201-76; road from Km 108.34 to official
8-152-76; 8-153- Km. 109.52
procedure
76;9-181-76; 9-
184-76
2. General
Voucher No. B-
619;
3. Check No.
9403105;
2858 T-35-f (Delivery 1. Request for 151.35 m. t. of item 310 Not PhP 47,713.09
Receipt); T-35- Allocation for use in the asphalting numbered
f-1 (Daily Tally Allotment 101-6- of the Toledo-Tabuelan contrary to
Sheet); 234-76; 6-237-76; road from Km. 108.34 to official
6-239-76; 6-241- Km. 109.52
procedure
76; 6-240-76
2. General
Voucher No. B-
629;
3. Check No.
9403115;
2859 T-36-f (Delivery 1. Request for 110.01 m. t. of item 310 Not PhP 34,680.65
Receipt); T-36- Allocation of for use in asphalting of numbered
f-1 (Daily Tally Allotment 101-7- the Toledo-Tabuelan contrary to
Sheet); 63-76; 8-102-76; road from Km. 108.34 to official
8-121-76 Km.109.52
procedure
2. General
Voucher No. B-
631;
3. Check No.
9403117;
2909 T-113-b 1. General 1,200 cu.m. of item 108 Not PhP 27,900.00
(Request for Voucher No. B- for use in the numbered
Supplies and 928; rehabilitation of the contrary to
Equipment); T- Buanoy-Cantibas, official
2. Check No.
113-d (Report Balaban barangay road
9403426; procedure
of Inspection);
T-113-c
(Abstract of
Sealed
Quotation)
2910 T-114-c 1. General 1,200 cu. m. of item 108 Not PhP 27,900.00
(Request for Voucher No. B- for use in the numbered
Supplies and 929; rehabilitation of the contrary to
Equipment); T- Magay-Canamukan, official
2. Check No.
114-e (Report Compostela barangay
9403427; procedure
of Inspection); road
T-114-f
(Abstract of
Sealed
Quotation)
2914 T-115-c 1. General 1,200 cu. m. of item 108 Not PhP 27,000.00
(Request for Voucher No. B- for use in the numbered
Supplies and 927; rehabilitation of the contrary to
Equipment); T- Cajel-Lugo, Barbon official
2. Check No.
115-e (Report barangay road
9403425; procedure
of Inspection);
T-115-f
(Abstract of
Sealed
Quotation)
2919 T-117-g 1. General 1,550 cu. m. of item 108 Not PhP 31,000.00
(Delivery Voucher No. B- for use in the repair and numbered
Receipt); T- 244; rehabilitation of contrary to
117-g-1, etc. damaged roads and official
2. Check No.
(Daily Tally bridges at the Toledo-
9933293; procedure
Sheets) Tabuelan national road
from Km. 71 to Km. 83
2932 1. Request for 250 gals of aluminum Not PhP 44,762.58
Allocation of paint 324 gals of red numbered
Allotment 101-7- lead paint for use in the contrary to
83-76; 7-84-76; 7- maintenance of national official
124-76; 8-153-76; roads and bridges
procedure
8-170-76;
2. General
Voucher B-643;
3. Check No.
9403130;
On the part of petitioners, they readily admitted that they either signed the tally sheets and/or delivery receipts, reports
of inspection, requests for supplies and materials, and other related documents which became part of the supporting
documents that led to the issuance of general vouchers and eventually the disbursement of public funds. 29 The tally
sheets are statements of delivery that purportedly indicated the specified quantities of materials for the construction
and maintenance of roads that have been delivered on supposed project sites on given dates at specific places.
As a result of petitioners’ signatures in the tally sheets and/or delivery receipts, reports of inspection, requests for
supplies and materials, and other supporting documents—which became the basis for payment to suppliers—public
funds were released via general vouchers and checks to the said suppliers despite the fact that the latter did not make
any deliveries in accordance with projects allegedly funded by mostly fake LAAs.
The accusation that there were no actual deliveries of road construction and maintenance materials in support of
projects or otherwise funded by LAAs was proven true by the testimonies of the various barangay captains and
residents of the barangay who were supposed to be benefited by the construction and repair activities of the Cebu
First Highway Engineering District. The testimonies of these barangay captains and residents are summarized as
follows:30
1. MACARIO LIMALIMA, Barangay Captain of Barangay Antipolo, Medellin, Cebu, testified that his barangay is
traversed by the national highway stretching to a distance of 2 kilometers and 750 meters (Km. 122; Km. 123 to 125).
He described the road as full of potholes. Except for filling up these potholes with "anapog" or crushed limestone, no
major repairs were undertaken on the said road in 1978 or in previous years. (TSN., pp. 6-14, June 5, 1986). 31
2. FELOMINO ORBISO, Barangay Captain of Cawit, Medellin, Cebu, from 1972 to 1981, testified that his barangay is
traversed by the national highway, stretching from Km. 125 to Km. 127.9. He described the road as a rough or dirt
road. No improvement was ever made on this road whether during the year when he gave his statement to the NBI
(1978) or in previous years. The road remained in bad shape, with numerous potholes which the camineros merely
filled up with limestone. (TSN., pp.14-19, June 5, 1986). 32
3. TIMOTEO ANCAJAS, Barangay Captain of Paypay, Daan Bantayan, Cebu, from 1972 to 1982, testified that his
barangay is traversed by the national highway, stretching from Km. 132 to Km. 134 ½, or a distance of 2 ½ kilometers.
He described the portion of the highway as a rough road with potholes. He stated that the only improvement done on
this road was the filling up of the potholes with "anapog" or crushed limestone and this was done only once in 1977. It
even took the camineros three months from the time the limestones were delivered to start working on the road.
(TSN., pp. 20-26, June 5, 1986).33
4. LUCIA PEÑAFLOR, Barangay Captain of Don Pedro, Bogo, Cebu, from 1966 to 1982, testified that her barangay is
traversed by the national highway, stretching from Km. 103 to Km. 105 ½, up to the boundary of San Remigio, and
from the boundary to Daan Bantayan, a distance of more than 3 kilometers. It was only in 1984 or 1985 when this
portion of the national highway was asphalted. Prior to that, the road was maintained by filling up the potholes with
crushed limestone or "anapog." These potholes started to appear between January and June of 1977. However, as
alleged by her in her affidavit (Exh. II-1-d), these potholes were filled up only from January to June, 1978. (TSN., pp.
28-46, June 5, 1986).34
5. MARCELO CONEJOS, Barangay Captain of Tapilon, Daan Bantayan, from 1972 to 1982, testified that his barangay
is traversed by the national highway, stretching from Km. 130 to Km. 134, or a distance of 4 kilometers. In 1977, said
portion of the national highway was in bad condition and that nothing was done to improve it until 1982, except for the
time when the potholes were filled up with crushed limestones. (TSN., pp. 48-56, June 5, 1986). 35
6. REMEDIOS FELICANO, Barangay Captain of Looc, San Remigio, Cebu from 1977 to 1982, testified that her
barangay is traversed by the national highway, stretching form Km. 109 to Km. 110. She described said portion of the
national highway as "stoney." The only maintenance work undertaken to improve the road was the filling up of
potholes with crushed limestone which camineros gathered from the roadside. (TSN., pp.57-67, June 5, 1986). 36
7. ALBERTO BRANSUELA, a resident of Barangay San Jose, Catmon, Cebu, from 1974 to 1978, testified that
barangay San Jose is traversed by the national highway (Km. 58), covering a distance of ½ kilometer more or less. He
stated that while this portion of the national highway was already asphalted as of 1977, there were potholes which the
camineros filled up with anapog taken from the roadside. (TSN., pp. 69-80), June 5, 1986). 37
8. CARIDAD PUNLA, Acting Barangay Captain of Barangay Corazon, Catmon, Cebu, from 1977 to 1982, testified that
the Poblacion of Catmon is traversed by the national highway, stretching from Km. 57 to Km. 58. In 1977, only more
than ½ of this portion of the national highway was cemented while the remaining portion was asphalted. While said
portion of the national highway already had cracks and potholes as of 1977, the real problem was the uneven
elevation of the surface of the shoulder of the road. No general repair was undertaken by the authorities to correct the
uneven elevation, except for the work done by the camineros who covered up the potholes. (TSN., pp. 81-89, June 5,
1986).38
9. FELIPE MOLIT, Barangay Captain of Bao, Sugud, Cebu, from 1975 to 1982, testified that barangay Bao was
traversed by the national highway, stretching from Km. 59 to Km. 60 1/2. He described said portion of the national
highway as a gravel road surfaced with anapog. In 1977, the said road already had potholes which maintenance men
filled up with anapog beginning in March, 1977. The anapog was hauled in from Km. 64, the usual excavation place of
anapog. It took only 3 truckloads of anapog to cover the entire length of the 1 ½ kilometers traversing their barangay.
(TSN., pp. 90-99, June 5, 1986).39
10. LEONARDO PINOTE, Barangay Captain of Barangay Argawanon, San Remigio, Cebu, from 1972 to 1980,
testified that his barangay is traversed by the national highway covering a distance of ½ kilometers more or less. In
1977, this portion of the national highway was a rough road with potholes. In the same year, camineros worked on the
road, using wheelbarrows, shovels and rakes, pitching up the potholes with anapog. (TSN., pp. 29-35, June 6, 1986). 40
11. PEDRO ORSAL, Barangay Captain of Poblacion, San Remigio, Cebu, from January 1972 to 1980, testified that
his barangay is traversed by the national highway, from Km. 107 to Km. 110, or a distance of three kilometers more or
less. In 1977, the road from Km. 107 to Km. 108 was a gravel road. It was properly maintained by the highways
people, and every time potholes appeared on the road, they would be filled-up with anapog. This material was
dumped along the road by trucks of the Bureau of Public Highways. On the other hand, the road leading to the heart
of the poblacion was asphalted, but with potholes. In 1977, the potholes were filled up by camineros with gravel
delivered by dump trucks of the Bureau of Public Highways. It was only in 1978 when the road was re-asphalted and
extended from the junction of the poblacion to the adjacent barrio of Looc. x x x (TSN., pp.36-45, June 6, 1986). 41
The inescapable conclusion from the aforementioned testimonies of the barangay captains and residents of Cebu
whose respective barangay are traversed by the national highway is that there were no actual major repair works
undertaken on the national highway except the filling of potholes by crushed limestone (anapog). Clearly, there were
no deliveries of supplies and materials for asphalting and repair of roads described in the tally sheets and other
supporting documents signed by petitioners.
While petitioner Torrevillas presented Vice-Mayor Emigdio Tudlasan of Tabuclan, Cebu, who testified that he saw the
asphalting of the Tabuclan Road from kilometers 18 to 19, said testimony is not conclusive on the actual delivery of the
supplies indicated in the tally sheets, as Tudlasan was not present at the time of alleged delivery. Moreover, his
testimony runs counter to the testimonies of Barangay Captain Remedios Feliciano of Looc, San Remigio, Cebu and
Barangay Captain Pedro Orsal of Poblacion, San Remigio, Cebu. Feliciano testified that she was Barangay Captain of
Looc, San Remigio, Cebu from 1977 to 1982; that her barangay is traversed by the national highway, stretching from
km. 109 to km. 110; and that the only work undertaken to improve the road was the filling up of potholes with crushed
limestone which camineros gathered from the roadside. On the other hand, Orsal testified that he was Barangay
Captain of Poblacion, San Remigio, Cebu, from January 1972 to 1980; that his barangay is traversed by the national
highway, from km. 107 to km. 110; that in 1977, the road from km. 107 to km. 108 was a gravel road maintained by the
highways people, and every time potholes appeared on the road, they would be filled-up with anapog, which was
dumped along the road by the Bureau of Public Highways; and that it was only in 1978 when the road was re-
asphalted and extended from the junction of the poblacion to the adjacent barrio of Looc.
Compared to the testimony of Vice-Mayor Tudlasan, the testimonies of Barangay Captains Feliciano and Orsal are
entitled to more weight and credit, and are more credible considering the fact that they are residents of the area where
the road supposedly to be repaired is located plus the fact that they saw only limestone, not asphalt, that was used in
the repair of the road in 1977. The testimonies of Feliciano and Orsal are further buttressed by the findings and
statements of government witnesses, namely––Ruth Inting Paredes, Supervising Commission on Audit (COA) Auditor
assigned to Region VII; Felicitas Cruz Ona, Supervising COA Auditor assigned to the main COA office; Federico A.
Malvar, Senior National Bureau of Investigation (NBI) Agent of the Anti-Graft Section and member of the COA NBI
team assigned to investigate the anomalies; Rogelio C. Mamaril, Supervising NBI Agent of the Anti-Fraud and Action
Section; and Delia Comahig Preagido, Accountant III, MPH, Region VII––to the effect that the general vouchers and
LAAs that corresponded to the aforementioned tally sheets signed by petitioner Torrevillas were fake or falsified.
Undeniably, the government witnesses have no motive to testify falsely against petitioner Torrevillas and, hence,
credible. We conclude that there were no actual deliveries of supplies for asphalting of road and repair on kilometers
108 and 109, which were the subjects of Criminal Case Nos. 2855, 2856, 2858, and 2859.
Glaring is the finding of the SB that the Cebu First Highway Engineering District, to which petitioners were assigned,
had fake LAAs totaling to PhP 4,924,366.50, while the fake Cash Disbursement Ceilings issued amounted to PhP
6,271,150.42 The Cebu First Highway Engineering District had also issued checks per unrecorded reports in the total
sum of PhP 1,135,176.82.43 Therefore, the total illegal disbursements in the Cebu First Highway Engineering District
alone were a staggering PhP 12,330,693.32 circa 1977.
Of this total, petitioner Fernan, Jr. freely admitted signing tally sheets which pertained to non-existent deliveries of
road construction supplies and materials totaling PhP 146,000, 44 including PhP 27,000 in Criminal Case No. 2914
where petitioner Torrevillas was among the co-accused.45 These tally sheets were attached as the supporting papers
to fake general vouchers which facilitated the release of check payments to suppliers.
These checks were allegedly paid to suppliers Juliana de los Angeles (Criminal Case Nos. 2879, 2880, 2881, 2885,
and 2914) and Ismael Sabio, Jr. (Criminal Case No. 2918). 46
On his part, petitioner Torrevillas voluntarily admitted to signing tally sheets, reports of inspection, requisitions of
supplies and equipment, and other pertinent documents totaling an even greater amount of PhP
337,861.01,47including PhP 27,000 in Criminal Case No. 2914 where petitioner Fernan, Jr. was among the co-
accused.48 These documents signed by petitioner Torrevillas were likewise attached as supporting papers to fake
general vouchers which facilitated the release of check payments to suppliers.
These checks were allegedly paid to suppliers Rufino V. Nuñez (Criminal Case Nos. 2855, 2856, 2858, and 2859),
Juliana de los Angeles (Criminal Case Nos. 2909, 2910, and 2914), Ismael Sabio, Jr. (Criminal Case No. 2919), and
Manuel Mascardo (Criminal Case No. 2932).49
These general vouchers and checks could not be traced to genuine LAAs. Ergo, there were no actual deliveries of
supplies and materials for the road repair and rehabilitation in Region VII, which were the subjects of the criminal
cases where petitioners were charged.
We find no reason to disturb the findings of the court a quo that all the essential elements of the crime of estafa
through falsification of public documents were present. There is no question that petitioners, at the time of the
commission of the crime, were public officers—civil engineers—assigned to the MPH. Their signing of tally sheets and
related documents pertaining to the alleged deliveries of supplies for road repair and construction constitutes
intervention and/or taking advantage of their official positions, especially considering that they had the duty to inspect
the purported deliveries and ascertain the veracity of the documents and the statements contained in them.
The tally sheets bearing their signatures contained false recitals of material facts which the petitioners had the duty to
verify and confirm. These tally sheets were attached as supporting documents to fake LAAs and subsequently
became the bases for the disbursement of public funds to the damage and prejudice of the government. Indubitably,
there exists not even an iota of doubt as to petitioners’ guilt.
The essential elements of estafa through falsification of public documents are present in the cases against petitioners,
as follows:
1. Deceit: Petitioners Fernan, Jr. and Torrevillas made it appear that supplies for road construction and maintenance
were delivered by suppliers allegedly in furtherance of alleged lawful projects when in fact said supplies were not
delivered and no actual asphalting or repair of road was implemented. In doing so, petitioners:
1.1. Were public officers or employees at the time of the commission of the offenses;
1.2. Took advantage of their official position as highway engineers; and
1.3. Made untruthful statements in several narrations of fact.
2. Damage: The government disbursed PhP 146,000 in the case of Fernan, Jr. and PhP 337,861.01 in the case of
Torrevillas, as payments to various suppliers for the delivery of non-existent supplies.
By way of defense, petitioners posit that the tally sheets and other documents could in fact be traced to genuine LAAs
that were in the custody of the NBI. Unfortunately, these genuine LAAs were not introduced in evidence. It is an age-
old axiom that s/he who alleges something must prove it. Petitioners’ assertion that the documents they signed were
all genuine and duly covered by genuine LAAs was substantiated only by their own self-serving and uncorroborated
testimonies. We hesitate to give much weight and credit to their bare testimonies in the face of clear, convincing,
overwhelming, and hard evidence adduced by the State.
If the genuine LAAs were vital to their defense, and they firmly believed that the documents were indeed in the
custody of the NBI, then petitioners could have easily procured the compulsory process to compel the production of
said documents. However, petitioners miserably failed to avail of subpoena duces tecum which the court a quo could
have readily granted. The inability to produce such important and exculpatory pieces of evidence proved disastrous to
petitioners’ cause. Their conviction was indeed supported by proof beyond reasonable doubt which was not
overturned by defense evidence.
Petitioners acted in conspiracy with one another
Petitioners vigorously claim error on the part of the lower court when it made the finding that they were co-conspirators
with the other parties accused despite the dearth of evidence to amply demonstrate complicity.
We are not convinced by petitioners’ postulation.
Indeed, the burden of proving the allegation of conspiracy falls to the shoulders of the prosecution. Considering,
however, the difficulty in establishing the existence of conspiracy, settled jurisprudence finds no need to prove it by
direct evidence. In People v. Pagalasan, the Court explicated why direct proof of prior agreement is not necessary:
After all, secrecy and concealment are essential features of a successful conspiracy. Conspiracies are clandestine in
nature. It may be inferred from the conduct of the accused before, during and after the commission of the crime,
showing that they had acted with a common purpose and design. Conspiracy may be implied if it is proved that two or
more persons aimed their acts towards the accomplishment of the same unlawful object, each doing a part so that
their combined acts, though apparently independent of each other, were in fact, connected and cooperative, indicating
a closeness of personal association and a concurrence of sentiment. To hold an accused guilty as a co-principal by
reason of conspiracy, he must be shown to have performed an overt act in pursuance or furtherance of the complicity.
There must be intentional participation in the transaction with a view to the furtherance of the common design and
purpose.50
In Estrada v. Sandiganbayan, we categorized two (2) structures of multiple conspiracies, namely: (1) the so-called
"wheel" or "circle" conspiracy, in which there is a single person or group (the "hub") dealing individually with two or
more other persons or groups (the "spokes"); and (2) the "chain" conspiracy, usually involving the distribution of
narcotics or other contraband, in which there is successive communication and cooperation in much the same way as
with legitimate business operations between manufacturer and wholesaler, then wholesaler and retailer, and then
retailer and consumer.51
We find that the conspiracy in the instant cases resembles the "wheel" conspiracy. The 36 disparate persons who
constituted the massive conspiracy to defraud the government were controlled by a single hub, namely: Rolando
Mangubat (Chief Accountant), Delia Preagido (Accountant III), Jose Sayson (Budget Examiner), and Edgardo Cruz
(Clerk II), who controlled the separate "spokes" of the conspiracy. Petitioners were among the many spokes of the
wheel.
We recall the painstaking efforts of the SB through Associate Justice Cipriano A. Del Rosario, Chairperson of the Third
Division, in elaborating the intricate web of conspiracy among the accused, thus:
Mangubat enticed Preagido, Cruz and Sayson to join him. All three agreed to help him carry out his plan. They typed
fake LAAs during Saturdays. Cruz and Sayson also took charge of negotiating or selling fake LAAs to contractors at
26% of the gross amount. Preagido manipulated the general ledger, journal vouchers and general journal through
negative entries to conceal the illegal disbursements. In the initial report of COA auditors Victoria C. Quejada and Ruth
I. Paredes it was discovered that the doubtful allotments and other anomalies escaped notice due to the following
manipulations:
"The letter-advices covering such allotments (LAA) were not signed by the Finance Officer nor (sic) recorded in the
books of accounts. Disbursements made on the basis of these fake LAAs were charged to the unliquidated obligations
(Account 8-81-400), although the obligations being paid were not among those certified to the unliquidated obligations
(Account 8-81-400) at the end of the preceding year. To conceal the overcharges to authorized allotments, account 8-
81-400 (sic) and the excess of checks issued over authorized cash disbursements ceiling, adjustments were prepared
monthly through journal vouchers to take up the negative debit to Account 8-81-400 and a negative credit to the
Treasury Checking Account for Agencies Account 8-70-790. These journal vouchers in effect cancelled the previous
entry to record the disbursements made on the basis of fake LAAs. Thus the affected accounts (Accounts 8-81-400
and 8-70-790), as appearing in the trial balance, would not show the irregularity. The checks, however, were actually
issued."52
The four formed the nucleus of the nefarious conspiracy. Other government employees, tempted by the prospect of
earning big money, allowed their names to be used and signed spurious documents.
xxxx
3. Cebu First Highway Engineering District Anomalies
Focusing our attention now on the anomalies committed in the Cebu First District Engineering District, hereinafter
referred to as the Cebu First HED for brevity, the Court finds that the same pattern of fraud employed in the other
highway engineering districts in MPH Region VII was followed. The Cebu First HED received from Region VII thirty-
four Letters of Advice of Allotment (LAAs) in the total sum of P4,734,336.50 and twenty-nine (29) corresponding Sub-
Advices of Cash Disbursement Ceiling (SACDCs), amounting to P5,160,677.04 for the period January 1, 1977 to
December 31, 1977. But apart from this, the Cebu First HED appears to have also received for the same period
another set of eighty-four (84) LAAs amounting to P4,680,694.76 which however, could not be traced to any Sub-
Advice of Allotment (SAA) OR MATCHED TO THE Advices of Cash Disbursement Ceiling (ACDCs) received from the
MPH and Regional Office. This is highly irregular and not in consonance with accounting procedures.
It was also made to appear that the payments were made for alleged prior year’s obligations and chargeable to
Account 81-400, obviously because, they were not properly funded. Furthermore, the list of projects in Region VII for
1977 showed that Cebu first HED completed rehabilitation and/or improvement of roads and bridges in its districts
from February to May, 1977, with expenditures amounting to P613,812.00. On the other hand, the expenditures for
barangay roads in the same district in 1977 amounted to P140,692.00, and these were all completed within the period
from November to December, 1977. These completed projects were properly funded by legitimate LAAs and CDCs in
the total amount of only P754,504.00. However, an additional amount of P3,839,810.74, was spent by the Cebu First
HED for maintenance of roads and bridges for the same year (1977) but the same could not be traced to any
authoritative document coming from the MPH.
The following payments for materials purchased for the year 1977 were made to appear as payment for prior year’s
obligation and were paid out of fake LAAs:
Supplier No. of Kind of Measurement Amount
Vouchers Materials
Rufino Nuñez 29 Item 310 4,640,275 mt P1,374,135.00
J. delos Angeles 21 Item 108 22,290 cu.m. 433,300.00
Iluminada Vega 11 Item 108 8,325 cu.m. 191,500.00
Florencio Gacayan 10 Item 108 7,800 cu.m. 156,000.00
Ismael Sabio, Jr. 6 Item 108 6,198 cu.m. 123,960.00
FBS Marketing 3 Lumber 70,610.00
Cebu Hollow Blocks 2 Hollow Blocks 19,880.00
Bienvenido Presillas 4 Equip. Rental 29,580.00
T.R. Eustaquio Ent. 1 Office Supplies 7,461.90
Santrade Mktg. 1 Johnson
8,392.90
Products
Pelagia Gomez 1 Item 108 2,000 cu.m. 40,000.00
M & M Ent. 1 Paints 49,736.20
Freent Ind. 1 Office Supplies 590.20
Total……… P2,505,147.00
The NBI also discovered that there were purchases of materials in 1977 that were charged to current obligations but
paid out of spurious LAAs, to wit:
Supplier No. of Kind of
Measurement Amount
Vouchers Materials
Rufino Nuñez 11 Item 310 162,549 m.t.
P529,475.00
Item 108 5,000 cu.m.
Juliana delos Angeles 16 Item 108 13,280 cu.m. P276,400.00
Item 111 1,00 cu.m. 24,000.00
Item 200 307 cu.m. 7,982.00
Iluminada Vega 3 Item 108 3,600 cu.m. 72,090.00
Florencio Gacayan 2 Item 108 2,400.00 cu.m. 48,000.00
Vicon Ent. 1 Steel Frame 19,042.74
Ismael Sabio, Jr. 5 Item 108 6,950 cu.m. 139,000.00
Jabcyl Mktg. 3 Bridge Materials 128,764.80
Total……… P1,339,663.74
Grand Total ………. P3,839,810.74
A total of 132 General Vouchers, emanating from fake LAAs and ACDCs, were traced back to Rolando Mangubat,
Regional Accountant of Region VII and Adventor Fernandez, Regional Highway Engineer, also of Region VII. Those
LAAs and ACDCs became the vehicles in the disbursement of funds amounting to P3,839,810.74, through the
vouchers purportedly issued for the purchase and delivery of the aforementioned materials allegedly used for the
maintenance and repair of the national highways within the Cebu First HED. Despite the enormous additional
expenditure of P3,839,810.74, the roads and bridges in the district, as found out by the NBI, did not show any
improvement (Exhibit II). As testified to by several barangay captains, the road maintenance consisted merely of
spreading anapog or limestone on potholes of the national Highway.
Obviously, the vouchers for payments of alleged maintenance of roads and bridges in the additional amount of
P3,839,810.74 were prepared for no other purpose than to siphon off the said amount from the government coffer into
the pockets of some officials and employees of Region VII and the Cebu First HED, as well as the suppliers and
contractors who conspired and confederated with them. 53
After a close re-examination of the records, the Court finds no reason to disturb the finding of the anti-graft court that
petitioners are co-conspirators of the other accused, headed by Chief Accountant Rolando Mangubat, who were
similarly convicted in practically all the 119 counts of estafa. Undisturbed is the rule that this Court is not a trier of facts
and in the absence of strong and compelling reasons or justifications, it will accord finality to the findings of facts of the
SB. The feeble defense of petitioners that they were not aware of the ingenuous plan of the group of accused
Mangubat and the indispensable acts to defraud the government does not merit any consideration. The State is not
tasked to adduce direct proof of the agreement by petitioners with the other accused, for such requirement, in many
cases, would border on near impossibility. The State needs to adduce proof only when the accused committed acts
that constitute a vital connection to the chain of conspiracy or in furtherance of the objective of the conspiracy. In the
case at bench, the signing of the fake tally sheets and/or delivery receipts, reports of inspection, and requests for
supplies and materials by petitioners on separate occasions is vital to the success of the Mangubat Group in
siphoning off government funds. Without such fabricated documents, the general vouchers covering the supply of
materials cannot be properly accomplished and submitted to the disbursing officer for the preparation of checks.
State witness Ruth Paredes, Supervising COA Auditor, elaborated on the procedure regarding the award of the
contract more specifically to the payment of the contractor or supplier. Once the Request for Supplies and Equipment
is approved by the Regional Office, the Request for Obligation of Allotment (ROA) or the request for funds is signed by
the District Engineer pursuant to the approved plans and budget and signed by the district accountant as to availability
of funds.
The district office will advertise the invitation to bid and award the contract to the lowest bidder. The Purchase Order
(PO) is prepared and addressed to the winning bidder. Upon delivery of the supplies and materials, the supplier bills
the district office for payment. Consequently, the requisitioning officer will prepare the general voucher which must be
accompanied by the following documents:
a. The ROA;
b. The PO;
c. The abstract of Bid together with the Bid quotations;
d. The delivery receipts together with the tally sheets; and
e. The tax clearance and tax certificate of the supplier.
After the preparation and submission of the general voucher and the supporting documents, the disbursing officer
shall prepare and draw a check based on said voucher. The check is countersigned by an officer of the district office
and/or the COA Regional Director based on the amount of the check.
Thus, it is clear that without the tally sheets and delivery receipts, the general voucher cannot be prepared and
completed. Without the general voucher, the check for the payment of the supply cannot be made and issued to the
supplier. Without the check payment, the defraudation cannot be committed and successfully consummated. Thus,
petitioners’ acts in signing the false tally sheets and/or delivery receipts are indispensable to the consummation of the
crime of estafa thru falsification of public documents. Surely, there were ghost or false deliveries of supplies and
materials as convincingly shown by the testimonies of the barangay captains, officials, and residents of the areas
where the materials were allegedly used. More importantly, if there were actual deliveries of materials made, then
there would be no need to fake the LAAs because the suppliers will have to be paid the cost of said materials plus a
reasonable profit. As a result, there is nothing or not much to share with the more than 30 or so co-conspirators, for
the suppliers would not be too dim-witted to part with even their cost in buying the materials they allegedly supplied.
Moreover, the fake delivery receipts and tally sheets signed by petitioners were linked to the general vouchers upon
which check payments were made to the suppliers who were found guilty of participating in the fraud. With respect to
petitioner Fernan, Jr., he signed tally sheets on the ghost deliveries of Juliana de los Angeles and Ismael Sabio, Jr. On
the part of petitioner Torrevillas, he signed false tally sheets and delivery receipts on supplies allegedly delivered by
Rufino V. Nuñez, Juliana de los Angeles, Ismael Sabio, Jr., and Manuel Mascardo. Lastly, the checks issued to these
suppliers based on general vouchers supported by the false tally sheets and general vouchers signed by petitioners
cannot be traced to any genuine LAAs, resulting in the inescapable conclusion that these LAAs were unauthorized;
hence, fake or fabricated. These are undisputed tell-tale signs of the complicity by petitioners with the Mangubat
syndicate.
In People v. Mangubat, the court a quo elucidated the conspiracy in the Cebu highway scam in a trenchant manner:
Where the acts of each of the accused constitute an essential link in a chain and the desistance of even one of them
would prevent the chain from being completed, then no conspiracy could result as its consummation would then be
impossible or aborted. But when each and everyone of the accused in the instant cases performed their assigned
tasks and roles with martinet-like precision and accuracy, by individually performing essential overt acts, so much so
that the common objective is attained, which is to secure the illegal release of public funds under the guise of fake or
simulated public documents, then each and everyone of said accused are equally liable as co-principals under the
well-established and universally-accepted principle that, once a conspiracy is directly or impliedly proven, the act of
one is the act of all and such liability exists notwithstanding no-participation in every detail in the execution of the
offense.54
In sum, the required quantum of proof has been adduced by the State on the conspiracy among the accused including
petitioners. The conviction of petitioners must perforce be sustained.
WHEREFORE, we DENY the petition and AFFIRM the December 4, 1997 Decision of the SB in the consolidated
criminal cases subject of this petition.
No costs.
SO ORDERED.

GLORIA MACAPAGAL-ARROYO vs. PEOPLE OF THE PHILIPPINES AND SANDIGANBAYAN (First Division)
G.R. No. 220598 July 19, 2016
x-----------------------x
G.R. No. 220953
BENIGNO B. AGUAS vs. SANDIGANBAYAN (First Division)
BERSAMIN, J.:
We resolve the consolidated petitions for certiorari separately brought to assail and annul the resolutions issued on
April 6, 20151 and September 10, 2015,2 whereby the Sandiganbayan respectively denied their demurrer to evidence,
and their motions for reconsideration, asserting such denials to be tainted with grave abuse of discretion amounting to
lack or excess of jurisdiction.
Antecedents
On July 10, 2012, the Ombudsman charged in the Sandiganbayan former President Gloria Macapagal-Arroyo (GMA);
Philippine Charity Sweepstakes Office (PCSO) Budget and Accounts Officer Benigno Aguas; PCSO General Manager
and Vice Chairman Rosario C. Uriarte; PCSO Chairman of the Board of Directors Sergio 0. Valencia; Members of the
PCSO Board of Directors, namely: Manuel L. Morato, Jose R. Taruc V, Raymundo T. Roquero, and Ma. Fatima A.S.
Valdes; Commission on Audit (COA) Chairman Reynaldo A. Villar; and COA Head of Intelligence/Confidential Fund
Fraud Audit Unit Nilda B. Plaras with plunder. The case was docketed as Criminal Case No. SB-12-CRM-O 174 and
assigned to the First Division of the Sandiganbayan.
The information3 reads:
The undersigned Assistant Ombudsman and Gratl Investigation and Prosecution Officer III, Office of the Ombudsman,
hereby accuse GLORIA MACAPAGAL-ARROYO, ROSARIO C. URIARTE, SERGIO O. VALENCIA, MANUEL L.
MORA TO, JOSE R. TARUC V, RAYMUNDO T. ROQUERO, MA. FATIMA A.S. V ALOES, BENIGNO B. AGUAS,
REYNALDO A. VILLAR and NILDA B. PLARAS, of the crime of PLUNDER, as defined by, and penalized under
Section 2 of Republic Act (R.A.) No. 7080, as amended by R.A. No. 7659, committed, as follows:
That during the period from January 2008 to June 2010 or sometime prior or subsequent thereto, in Quezon City,
Philippines, and within the jurisdiction of this Honorable Court, accused GLORIA MA CAP A GAL-ARROYO, then the
President of the Philippines, ROSARIO C. URIARTE, then General Manager and Vice Chairman, SERGIO O.
VALENCIA, then Chairman of the Board of Directors, MANUEL L. MORA TO, JOSE R. TARUC V, RAYMUNDO T.
ROQUERO, MA. FATIMA A.S. V ALOES, then members of the Board of Directors, BENIGNO B. AGUAS, then Budget
and Accounts Manager, all of the Philippine Charity Sweepstakes Office (PCSO), REYNALDO A. VILLAR, then
Chairman, and NILDA B. PLARAS, then Head of Intelligence/Confidential Fund Fraud Audit Unit, both of the
Commission on Audit, all public officers committing the offense in relation to their respective offices and taking undue
advantage of their respective official positions, authority, relationships, connections or influence, conniving, conspiring
and confederating with one another, did then and there willfully, unlawfully and criminally amass, accumulate and/or
acquire. Directly or indirectly, ill-gotten wealth in the aggregate amount or total value of THREE HUNDRED SIXTY
FIVE MILLION NINE HUNDRED NINETY SEVEN THOUSAND NINE HUNDRED FIFTEEN PESOS
(PHP365,997,915.00), more or less, through any or a combination or a series of overt or criminal acts, or similar
schemes or means, described as follows:
(a) diverting in several instances, funds from the operating budget of PCSO to its Confidential/Intelligence
Fund that could be accessed and withdrawn at any time with minimal restrictions, and converting, misusing,
and/or illegally conveying or transferring the proceeds drawn from said fund in the aforementioned sum, also
in several instances, to themselves, in the guise of fictitious expenditures, for their personal gain and benefit;
(b) raiding the public treasury by withdrawing and receiving, in several instances, the above-mentioned
amount from the Confidential/Intelligence Fund from PCSO's accounts, and or unlawfully transferring or
conveying the same into their possession and control through irregularly issued disbursement vouchers and
fictitious expenditures; and
(c) taking advantage of their respective official positions, authority, relationships, connections or influence, in
several instances, to unjustly enrich themselves in the aforementioned sum, at the expense of, and the
damage and prejudice of the Filipino people and the Republic of the Philippines.
CONTRARY TO LAW.
By the end of October 2012, the Sandiganbayan already acquired jurisdiction over GMA, Valencia, Morato and Aguas.
Plaras, on the other hand, was able to secure a temporary restraining order (TRO) from this Court in Plaras v.
Sandiganbayan docketed as G.R. Nos. 203693-94. Insofar as Roquero is concerned, the Sandiganbayan acquired
jurisdiction as to him by the early part of 2013. Uriarte and Valdes remained at large.
Thereafter, several of the accused separately filed their respective petitions for bail. On June 6, 2013,
the Sandiganbayan granted the petitions for bail of Valencia, Morato and Roquero upon finding that the evidence of
guilt against them was not strong.4 In the case of petitioners GMA and Aguas, the Sandiganbayan, through the
resolution dated November 5, 2013, denied their petitions for bail on the ground that the evidence of guilt against them
was strong.5 The motions for reconsideration filed by GMA and Aguas were denied by the Sandiganbayan on
February 19, 2014.6 Accordingly, GMA assailed the denial of her petition for bail in this Court, but her challenge has
remained pending and unresolved todate.
Personal jurisdiction over Taruc and Villar was acquired by the Sandiganbayan in 2014. Thereafter, said accused
sought to be granted bail, and their motions were granted on different dates, specifically on March 31, 2014 7 and May
9, 2014,8 respectively.
The case proceeded to trial, at which the State presented Atty. Aleta Tolentino as its main witness against all the
accused. The Sandiganbayan rendered the following summary of her testimony and evidence in its resolution dated
November 5, 2013 denying the petitions for bail of GMA and Aguas, to wit:
She is a certified public accountant and a lawyer. She is a member of the Philippine Institute of Certified Public
Accountants and the Integrated Bar of the Philippines. She has been a CPA for 30 years and a lawyer for 20 years.
She has practiced accountancy and law. She became accounting manager of several companies. She has also taught
subjects in University of Santo Tomas, Manuel L. Quezon University, Adamson University and the Ateneo de Manila
Graduate School. She currently teaches Economics, Taxation and Land Reform.
Presently, she is a Member of the Board of Directors of the PCSO. The Board appointed her as Chairman of an Audit
Committee. The audit review proceeded when she reviewed the COA Annual Reports of the PCSO for 2006 2007
2008 and 2009 (Exhibits "D" "E" "F" and "G" respectively), and the annual financial statements contained therein for
the years 2005 to 2009. The reports were given to them by the COA. These are transmitted to the PCSO annually
after the subject year of audit.
One of her major findings was that the former management of the PCSO was commingling the charity fund, the prize
fund and the operating fund. By commingling she means that the funds were maintained in only one main account.
This violates Section 6 of Republic Act 1169 (PCSO Charter) and generally accepted accounting principles.
The Audit Committee also found out that there was excessive disbursement of the Confidential and Intelligence Fund
(CIF). There were also excessive disbursements for advertising expenses. The internal audit department was also
merged with the budget and accounting department, which is a violation of internal audit rules.
There was excessive disbursement of the CIF because the PCSO was given only P10 million in 2002, i.e. P5 million
for the Office of the Chairman and P5 million for the Office of the General Manager. Such allocation was based on the
letters of then Chairman Lopez (Exh. "I") and then General Manager Golpeo (Exh. "J"), asking for P5 million
intelligence fund each. Both were dated February 21, 2000, and sent to then President Estrada, who approved them.
This allocation should have been the basis for the original allocation of the CIF in the PCSO, but there were several
subsequent requests made by the General Manager during the time of, and which were approved by, former President
Arroyo.
The allocation in excess of P10 million was in violation of the PCSO Charter. PCSO did not have a budget for this.
They were working on a deficit from 2004 to 2009. The charter allows only 15% of the revenue as operating fund,
which was already exceeded. The financial statements indicate that they were operating on a deficit in the years 2006
to 2009.
It is within the power of the General Manager to ask for additional funds from the President, but there should be a
budget for it. The CIF should come from the operating fund, such that, when there is no more operating fund, the other
funds cannot be used.
The funds were maintained in a commingled main account and PCSO did not have a registry of budget utilization. The
excess was not taken from the operating fund, but from the prize fund and the charity fund.
In 2005, the deficit was P916 million; in 2006, Pl,000,078,683.23. One of the causes of the deficit for 2006 was the
CIF expense of P215 million, which was in excess of the approved allocation of P10 million. The net cash provided by
operating expenses in 2006 is negative, which means that there were more expenses than what was received.
In the 2007 COA report, it was found that there was still no deposit to the prize and charity funds. The COA made a
recommendation regarding the deposits in one main account. There were also excessive disbursements of CIF
amounting to P77,478,705.
She received a copy of the PCSO corporate operating budget (COB) for the year 2008 in 2010 because she was
already a member of its Board of Directors. The 2008 approved COB has a comparative analysis of the actual budget
for 2007 (Exh. "K"). It is stated there that the budget for CTF in 2007 is only P25,480,550. But the financial statements
reflect P77 million. The budget was prepared and signed by then PCSO General Manager Rosario Uriarte. It had
accompanying Board Resolution No. 305, Series of 2008, which was approved by then Chairperson Valencia, and
board members Valdes, Morato, Domingo, and attested to by Board Secretary Atty. Ronald T. Reyes.
In the 2008 COA report, it was noted that there was still no deposit to the prize and charity funds, adverted in the 2007
COA report. There was already a recommendation by the COA to separate the deposits or funds in 2007. But the COA
noted that this was not followed. The financial statements show the Confidential and the Extra-Ordinary Miscellaneous
Expenses account is P38,293,137, which is more than the P10 million that was approved.
In the Comparative Income Statement (Exh. "K"), the 2008 Confidential/Intelligence Expense budget was approved for
P28 million. The Confidential and Extra-Ordinary Miscellaneous Expenses is the account being used for confidential
and intelligence expenses. The amount in the financial statements is over the budgeted amount of P28 million.
Further, the real disbursement is more than that, based on a summary of expenditures she had asked the treasurer to
prepare.
In the Comparative Income Statement for 2009 Budget against the 2008 Actual Budget (Exh. "L"), the budget for CIF
and expenses was P60 million.
In the 2009 COA report, it was noted that there was still no deposit to the prize and charity funds, despite the
instruction or recommendation of COA. The funds were still deposited in one account. The COA observation in 2007
states that there is juggling or commingling of funds.
After she had concluded the audit review, she reported her findings to the Board of Directors in one of their executive
meetings. The Board instructed her to go in-depth in the investigation of the disbursements of CIF.
The Audit Committee also asked Aguas why there were disbursements in excess of P10 million. He explained that
there were board resolutions confirming additional CIF which were approved by former President Arroyo. Aguas
mentioned this in one of their meetings with the directors and corporate secretary. The board secretary, Atty. Ed
Araullo, gave them the records of those resolutions.
In the records that Araullo submitted to her, it appears that Uriarte would ask for additional CIF, by letter and President
Arroyo approves it by affixing her signature on that same letter-request. There were seven letters or memoranda to
then President Arroyo, with the subject "Request for Intelligence Fund."
She then asked their Treasurer, Mercy Hinayon, to give her a summary of all the disbursements from CIF from 2007 to
2010. The total of all the amounts in the summaries for three years is P365,997,915.
After receiving the summaries of the disbursed checks, she asked Hinayon to give her the checks or copies thereof.
She also asked Dorothy Robles, Budget and Accounting Manager, to give her the corresponding vouchers. Only two
original checks were given to her, as the rest were with the bank. She asked her to request certified true copies of the
checks.
They were then called to the Senate Blue Ribbon Committee, which was then investigating the operation of PCSO,
including the CIF. She was invited as a resource speaker in an invitation from Chairman Teofisto Guingona III (Exh.
"DD"). Before the hearing, the Committee Chairman went to the PCSO and got some documents regarding the subject
matter being investigated. Araullo was tasked to prepare all the documents needed by the Committee. These
documents included the CIF summary of disbursements, letters of Uriarte and the approval of the former president.
She attended whenever there were committee hearings. Among those who also attended were the incoming members
if the PCSO Board Directors and the directors. Accused Valencia and Aguas were also present in some hearings as
resources speakers. They were invited in connection with the past disbursements of PCSO related to advertising
expenses, CIF, vehicles for the bishops, and the commingling of funds.
The proceedings in the Committee were recorded and she secured a copy of the transcript of stenographic notes from
the Office of the Blue Ribbon Committee. In the proceeding on June 7, 2011 (Exh. ''EE"), Uriarte testified. The witness
was about two to three meters away from Uriarte when the latter testified, and using a microphone.
According to the witness, Uriarte testified that all the confidential intelligence projects she had proposed were
approved by President Arroyo; all the requests she gave to the President were approved and signed by the latter
personally in her (Uriarte's) presence; and all the documents pertaining to the CIF were submitted to President Arroyo.
On the other hand, Valencia and Taruc said they did not know about the projects. Statements before the Committee
are under oath.
After the Committee hearings, she then referred to the laws and regulations involved to check whether the
disbursements were in accordance with law. One of the duties and responsibilities of the audit committee was to verify
compliance with the laws.
She considered the following laws: R.A. 1169, as amended (PCSO Charter); P.D. 1445 (COA Code); LOI 1282; COA
Circular 92-385, as amended by Circular 2003-002, which provides the procedure for approval of disbursements and
liquidation of confidential intelligence funds. She made a handwritten flowchart (Exh. "II") of the
allocations/disbursements/liquidation and audit of the CIF, based on LOI 1282 and the COA Circulars. A digital
presentation of this flowchart was made available.
The first step is the provision or allotment of a budget because no CIF fund can be disbursed without the allocation.
This is provided in the second whereas clause of Circular 92-385. For GOCCs, applying Circular 2003-002, there must
be allocation or budget for the CIF and it should be specifically in the corporate operating budget or would be taken
from savings authorized by special provisions.
This was not followed in the PCSO CIF disbursement in 2008. The disbursement for that year was P86,555,060. The
CIF budget for that year was only P28 million, and there were no savings because they were on deficit. This was also
not followed for the year 2009. The CIF disbursement for that year was P139,420,875. But the CIF budget was only
P60 million, and there was also no savings, as they were in deficit. For the year 2010, the total disbursement, as of
June 2010, was P141,021,980. The budget was only P60 million.
The requirements in the disbursement of the CIF are the budget and the approval of the President. If the budget is
correct, the President will approve the disbursement or release of the CIF. In this case, the President approved the
release of the fund without a budget and savings. Also, the President approved the same in violation of LOI 1282,
because there were no detailed specific project proposals and specifications accompanying the request for additional
CIF. The requests for the year 2008, 2009 and 2010 were uniform and just enumerated the purposes, not projects.
They did not contain what was required in the LOI.
The purpose of this requirement is stated in the LOI itself. The request for allocations must contain full details and
specific purposes for which the fund will be used. A detailed presentation is made to avoid duplication of expenditures,
as what had happened in the past, because of a lack of centralized planning and organization or intelligence fund.
There was no reason for each additional intelligence fund that was approved by then President Arroyo.
The third step is the designation of the disbursing officer. In this case, the Board of Directors designated Uriarte as
Special Disbursing Officer (SDO) for the portion of the CIF that she withdrew. For the portion withdrawn by Valencia,
there was no special disbursing officer designated on record.
The designation of Uriarte was in violation of internal control which is the responsibility of the department head, as
required by Section 3 of Circular 2003-002. When she went through copies of the checks and disbursement vouchers
submitted to her, she found out that Uriarte was both the SDO and the authorized officer to sign the vouchers and
checks. She was also the payee of the checks. All the checks withdrawn by Uriarte were paid to her and she was also
the signatory of the checks.
Aside from Uriarte, Valencia also disbursed funds in the CIF. For the funds withdrawn by Valencia, he was also the
authorized officer to sign the vouchers and checks. He was also the payee of the checks.
The confidential funds were withdrawn through cash advance. She identified the vouchers and checks pertaining to
the disbursements made by Uriarte and Valencia in 2008, 2009 and 2010.
The checks of Uriarte and Valencia had the treasurer as cosignatory. The treasurer who signed depends on when the
checks were issued
She knows the signatures of Uriarte, Valencia and Aguas because they have their signatures on the records.
Uriarte and Valencia signed the vouchers to certify to the necessity and legality of the vouchers; they also signed to
approve the same, signify they are "okay" for payment and claim the amount certified and approved as payee. Gloria
P. Araullo signed as releasing officer, giving the checks to the claimants.
Accused Aguas signed the vouchers to certify that there are adequate funds and budgetary allotment, that the
expenditures were properly certified and supported by documents, and that the previous cash advances were
liquidated and accounted for. This certification means that the cash advance voucher can be released. This is because
the COA rule on cash advance is that before any subsequent cash advance is released, the previous cash advance
must be liquidated first. This certification allowed the requesting party and payee to get the cash advance from the
voucher. Without this certification, Uriarte and Valencia could not have been able to get the cash advance. Otherwise,
it was a violation of P.D. 1445 (Government Auditing Code).
The third box in the flowchart is the designation of the SDO. Board Resolutions No. 217, Series of2009 (Exh."M"), No.
2356, Series of 2009 (Exh."N"), and No. 029, Series of 2010 (Exh. "O"), resolved to designate Uriarte as SDO for the
CIF. These resolutions were signed and approved by Valencia, Taruc, Valdes, Uriarte, Roquero and Morato. The
witness is familiar with these persons' signature because their signatures appear on PCSO official records.
Valencia designated himself as SDO upon the recommendation of COA Auditor Plaras. There was no board resolution
for this designation. There was just a certification dated February 2, 2009 (Exh. "Z 4"). This certification was signed by
Valencia himself and designates himself as the SDO since he is personally taking care of the funds which are to be
handled with utmost confidentiality. The witness is familiar with Valencia's signature because it appears on PCSO
official documents. Under COA rules, the Board of Directors has authority to designate the SDO. The chairman could
not do this by himself.
Plaras wrote a letter dated December 15, 2008 to Valencia. It appears in the letter that to substantiate the liquidation
report, Plaras told Valencia to designate himself as SDO because there was no disbursing officer. It was the
suggestion of Plaras. Plaras is the head of the CIF Unit under then COA Chairman Villar. Liquidation vouchers and
supporting papers were submitted to them, with corresponding fidelity bond.
COA Circulars 92-385 and 2003-002 indicate that to disburse CIF, one must be a special disbursing officer or SDO. All
disbursing officers of the government must have fidelity bonds. The bond is to protect the government from and
answer for misappropriation that the disbursing officer may do. The bond amount required is the same as the amount
that may be disbursed by the officer. It is based on total accountability and not determined by the head of the agency
as a matter of discretion. The head determines the accountability which will be the basis of the bond amount.
The Charter states that the head of the agency is the Board of Directors, headed by the Chairman. But now, under the
Governance of Government Corporation law, it is the general manager.
Plaras should have disallowed or suspended the cash advances because there was no fidelity bond and the
disbursing officer was not authorized. There was no bond put up for Valencia. The records show that the bond for
Uriarte was only for the amount of Pl.5 million. This is shown in a letter dated August 23, 2010, to COA Chairman Villar
through Plaras from Aguas (Exh. "B5"), with an attachment from the Bureau of Treasury, dated March 2, 2009. It
appears there that the bond for Uriarte for the CIF covering the period February 2009 to February 2010 was only Pl.5
million.
Aguas submitted this fidelity bond certification, which was received on August 24, 2010, late, because under the COA
Circulars, it should have been submitted when the disbursing officer was designated. It should have been submitted to
COA because a disbursing officer cannot get cash advances if they do not have a fidelity bond.
Once an SDO is designated, the specimen signature must be submitted to COA, together with the fidelity bond and
the signatories for the cash advances.
The approval of the President pertains to the release of the budget, not its allocation. She thinks the action of the
Board was done because there was no budget. The Board's confirmation was needed because it was in excess of the
budget that was approved. They were trying to give a color of legality to them approval of the CIF in excess of the
approved corporate operating budget. The Board approval was required for the amount to be released, which amount
was approved in excess of the allotted budget for the year. The President cannot approve an additional amount,
unless there is an appropriation or a provision saying a particular savings will be used for the CIF. The approvals here
were all in excess of the approved budget.
Cash advances can be given on a per project basis for CIF. For one to get a cash advance, one must state what the
project is as to that cash advance. No subsequent cash advance should be given, until previous cash advances have
been liquidated and accounted for. If it is a continuing project, monthly liquidation reports must be given. The
difference in liquidation process between CIF and regular cash advances is that for CIF, the liquidation goes to the
Chair and not to the resident auditor of the agency or the GOCC. All of the liquidation papers should go to the COA
Chair, given on a monthly basis.
In this case, the vouchers themselves are couched generally and just say cash advance from CIF of the Chairman or
from the GM's office in accordance with her duties. There is no particular project indicated for the cash advance. Also,
the requirement that prior advances be liquidated first for subsequent advances to be given was not followed. The
witness prepared a summary of the cash advances withdrawn by the two disbursing officers covering the years 2008,
2009 and 2010 (Exh. "D5"). The basis for this summary is the record submitted to them by Aguas, which were
supposedly submitted to COA. It shows that there were subsequent cash advances, even if a prior advance has not
yet been liquidated. Valencia submitted liquidation reports to Villar, which consists of a letter, certification and schedule
of cash advances, and liquidation reports. One is dated July 24, 2008 (Exh. "G 5") and another is dated February 13,
2009 (Exh. "H5").
When she secured Exhibit "G5", together with the attached documents, she did not find any supporting documents
despite the statement in Exhibit "G5" that the supporting details of the expenses that were incurred from the fund can
be made available, if required. Aguas, the person who processed the cash advances said he did not have the details
or suppmiing details of documents of the expenditures.
Normally, when liquidating CIF, the certification of the head of the agency is necessary. If there were vouchers or
receipts involved, then all these should be attached to the liquidation report. There should also be an accomplishment
report which should be done on a monthly basis. All of these should be enclosed in a sealed envelope and sent to the
Chairman of the COA, although the agency concerned must retain a photocopy of the documents. The report should
have a cover/transmittal letter itemizing the documents, as well as liquidation vouchers and other supporting papers. If
the liquidation voucher and the supporting papers are in order, then the COA Chairman or his representative shall
issue a credit memorandum. Supporting papers consist of receipts and sales invoices. The head of the agency would
have to certify that those were all actually incurred and are legal. In this case, there were no supporting documents
submitted with respect to Valencia's cash advances in 2008. Only the certifications by the SDO were submitted. These
certifications stated that he has the documents in his custody and they can be made available, if and when necessary.
When she reviewed the CIF, she asked Aguas to produce the supporting documents which were indicated in
Valencia's certification and Aguas's own certification in the cash advance vouchers, where he also certified that the
documents supporting the cash advance were in their possession and that there was proper liquidation. Aguas replied
that he did not have them.
She identified the letter of Uriarte to Villar dated July 24, 2008 as well as a transmittal letter by Uriarte for August 1,
2008, a certification and schedule of cash advances and an undetailed liquidation report. Among the attachments is
Board Resolution 305, a copy of the COB for 2008, a document for the second half of 2008, a document dated April 2,
2009, and a document for liquidation of P2,295,000. She also identified another letter for P50 million, dated February
13, 2009, attached to the transmittal letter. There is a certification attached to those two letters amounting to
P2,295,000. Also attached is the schedule of cash advances by Aguas and a liquidation report where Aguas certified
that the supporting documents are complete and proper although the supporting documents and papers are not
attached to the liquidation report, only the general statement. These documents were submitted to them by Aguas.
She was shown the four liquidation reports (Exhibits "M5", "N5", "05" and "P5") attached to the transmittal letter and was
asked whether they were properly and legally accomplished. She replied that they were couched in general terms and
the voucher for which the cash advance was liquidated is not indicated and only the voucher number is specified. She
adds that the form of the liquidation is correct, but the details are not there and neither are the supporting papers.
The liquidation report was dated July 24, 2008, but it was submitted only on August 1, 2008 to COA, and it supposedly
covered the cash advances of Uriarte from January to May 2008. This is stated in her summary of liquidation that was
earlier marked. There were no supporting papers stated on or attached to the liquidation report.
She identified a set of documents to liquidate the cash advances from the CIF for the second semester of 2008 by
Uriarte. The transmittal letter of Uriarte was received by the COA on April 2, 2009. Upon inquiry with Aguas, he said
that he did not have any of the supporting papers that he supposedly had according to the certification. According to
him, they are with Uriarte. Uriarte, on the other hand, said, during the Senate hearing, that she gave them to President
Arroyo.
When Plaras wrote Valencia on December 15, 2008, Aguas wrote back on behalf of Valencia, who had designated
himself as SDO. However, their designations, or in what capacity they signed the voucher are not stated. Among the
attachments is also a memorandum dated April 2, 2008 (Exhibit "P5"), containing the signature of Arroyo, indicating her
approval to the utilization of funds. Another memorandum, dated August 13, 2008, indicating the approval of Arroyo
was also attached to the transmittal letter of Aguas on April 4, 2009. These two memoranda bear the reasons for the
cash advances, couched in general terms. The reasons were donated medicines that were sold and authorized
expenditures on endowment fund. The reasons stated in the memoranda are practically the same. Uriarte did not
submit any accomplishment reports regarding the intelligence fund. Aguas submitted an accomplishment report, but
the accomplishments were not indicated in definite fashion or with specificity.
The witness narrated, based on her Summary of Liquidation Reports in 2009, that the total cash advance made by
Uriarte was P132,760,096. Arroyo approved P90 million for release. P10 million in January 2009 and April 27, 2009,
and then P50 million in May 6, 2009.In July 2, 2009, P10 million or a total of P70 million. In October 2009, P20 million
or a total of P90 million. The amount that was cash advanced by Valencia was P5,660,779. Therefore, the total cash
advances by these two officials were P138,420,875, but all of these were never liquidated in 2009. Uriarte and
Valencia only submitted a liquidation voucher and a report to COA on April I2, 2010. For the January 22, 2009
disbursements, the date of the liquidation voucher was June 30, 2009, but it was submitted to COA on April 12, 2010.
Witness identified the transmittal letter for P28 million by Uriarte, dated October 19, 2009, which was received by the
COA only on April 12, 2010, with an accompanying certification from Uriarte as to some of the documents from which
the witness's Summary of Liquidation was based.
The cash advances made by Uriarte and Valencia violated par. I, Sec. 4 and Sec. 84 of P.D. I445 and par. 2, III, COA
Circular No. 92-385.
Since these cash advances were in excess of the appropriation, in effect, they were disbursed without any
appropriation. These cash advances were also made without any specific project, in violation of par. 2 of COA Circular
No. 92-385. In this case, the cash advances were not for a specific project. The vouchers only indicate the source of
the fund. The vouchers did not specify specific projects.
The total cash advances for the years 2008, 2009 and 2010 to accused Uriarte and Valencia is more than
P366,000,000. Valencia cash advanced PI 3.3 million. The rest was made by Uriarte.
The memoranda to President Arroyo stated only the problems encountered by the PCSO. These problems, as stated
in each memorandum, included donated medicines sometimes ending up in store for sale, unofficial use of
ambulances, rise of expenditures of endowment fund, lotto sweepstakes scams, fixers for programs of the PCSO, and
other fraudulent schemes. No projects were mentioned.
As regards the sixth step - the credit notice, the same was not validly issued by the COA. The credit notice is a
settlement or an action made by the COA Auditors and is given once the Chairman, in the case of CIF Fund, finds that
the liquidation report and all the supporting papers are in order. In this case, the supporting papers and the liquidation
report were not in order, hence, the credit notice should not have been issued. Further, the credit notice has to follow a
specific form. The COA Chairman or his representative can: 1) settle the cash advance when everything is in order; 2)
suspend the settlement if there are deficiencies and then ask for submission of the deficiencies; or 3) out rightly
disallow it in case said cash advances are illegal, irregular or unconscionable, extravagant or excessive. Instead of
following this form, the COA issued a document dated January 10, 2011, which stated that there is an irregular use of
the price fund and the charity fund for CIF Fund. The document bears an annotation which says, "wait for transmittal,
draft" among others. The document was not signed by Plaras, who was the Head of the Confidential and Intelligence
Fund Unit under COA Chairman Villar. Instead, she instructed her staff to "please ask Aguas to submit the
supplemental budget." This document was not delivered to PCSO General Manager J.M. Roxas. They instead
received another letter dated January 13, 2011 which was almost identical to the first document, except it was signed
by Plaras, and the finding of the irregular use of the prize fund and the charity fund was omitted. Instead, the work
"various" was substituted and then the amount of P137,5000,000. Therefore, instead of the earlier finding of
irregularity, suddenly, the COA issued a credit notice as regards the total of P140,000,000. The credit notice also did
not specify that the transaction had been audited, indicating that no audit was made.
A letter dated May 11, 2009 from the COA and signed by Plaras, states that the credit notice is hereby issued. Thus, it
is equivalent to the credit notice, although it did not come in the required form. It merely stated that the credit notice is
issued for P29,700,000, without specifying for which vouchers and for which project the credit notice was being given.
It merely says "First Semester of 2008". In other words, it is a "global" credit notice that she issued and it did not state
that she made an audit.
Another letter, dated July 14, 2010 and signed by Plaras, supposedly covers all the cash advances in 2009, but only
up to the amount of P116,386,800. It also did not state that an audit was made.
There were no supporting papers attached to the voucher, and the certification issued is not in conformity with the
required certification by COA Circular 2003-002. The certification dated July 24, 2008 by Valencia was not in
conformity with the certification required by COA. The required form should specify the project for which the
certification was being issued, and file code of the specific project. The certification dated July 24, 2008, however, just
specified that it was to certify that the P2 million from the 2008 CIF Fund was incurred by the undersigned, in the
exercise of his functions as PCSO Chairman for the various projects, projects and activities related to the operation of
the office, and there was no specific project or program or file code of the intelligence fund, as required by COA.
Furthermore, the certification also did not contain the last paragraph as required by COA. Instead, the following was
stated in the certification: "He further certifies that the details and supporting documents and papers on these highly
confidential missions and assignments are in our custody and kept in our confidential file which can be made available
if circumstances so demand." No details or supporting documents were reviewed by the witness, and though she
personally asked Aguas, the latter said that he did not have the supporting papers, and they were not in the official
files of the PCSO. Two people should have custody of the papers, namely, The Chairman of COA and the PCSO or its
Special Disbursing Officer. The witness asked Aguas because Valencia was not there, and also because Aguas was
the one who made the certification and was in-charge of accounting. The vouchers, supposedly certified by Aguas, as
Budget and Accounting Department Manager, each time cash advances were issued, stated that the supporting
documents are complete, so the witness went to him to procure the documents.
A certification dated February 13, 2009, stating that P2,857,000 was incurred by Valencia in the exercise of his
function as PCSO Chairman, related to the operations of his office without the specific intelligence project. In the same
document, there is a certification similar to one in the earlier voucher. No details of this certification were submitted by
Aguas.
Another certification dated July 24, 2008 was presented, and it also did not specify the intelligence and confidential
project, and it did not contain any certification that the amount was disbursed legally or that no benefits was given to
any person. Similarly, the fourth paragraph of the same document states that Uriarte certified that details and
supporting papers of the cash advance that she made of P27,700,000 are "kept in their confidential" (sic). The same
were not in the PCSO official records.
The certification dated October 19, 2009 for the amount of P2,498,300, was submitted to the witness by Aguas. It also
did not conform to the COA requirements, as it also did not specify the use of the cash advance, did not contain any
certification that the cash advance was incurred for legal purposes, or that no benefits to other people were paid out of
it. Again, no supporting documents were found and none were given by Aguas. Similarly, a certification dated February
8, 2010 for the amount of P2,394,654 was presented, and it also does not conform with the COA circular, as it only
stated that the amount was spent or incurred by Valencia for projects covering the period of July 1 to December 31,
2009 to exercise his function as PCSO Chairman, thus no particular intelligence fund or project was stated. As in the
other certifications, though it was stated that the details were in the confidential file, it appeared that these were not in
the possession of PCSO. Another certification dated October 19, 2009 submitted by Uriarte was examined by the
witness in the course of her audit, and found that it also did not conform to the requirements, as it only stated that the
P25 million and P10 million intelligence and confidential fund dated January 29, 2009 and April 27, 2009 were used in
the exercise of her function as PCSO Vice Chairman and General Manager.
All the documents were furnished by Aguas during the course of the audit of the financial transactions of PCSO. Other
documents given by Aguas include a letter by Valencia to COA Chairman Villar, which was attached to the letter dated
July 24, 2008. For the Certification issued by Valencia for P2,857,000, there was also a certification attached dated
February 13, 2009. As to Exhibit "J5", together with the certification, there was a letter but no other documents were
submitted. Similarly, as to Exhibit "M6", it was attached to a letter dated October 19, 2009 and was submitted to the
witness by Aguas. Exhibit "N6" was attached to the letter of Valencia dated February 8, 2010, the October 19, 2009
certification was attached to the October 19, 2009 letter to Chairman Villar.
The certification dated June 29, 2010, signed by Valencia in the amount of P2,075,000, also does not conform with the
COA requirement as it only specifies that the fund was disbursed by Valencia under his office for various programs in
the exercise of his function as Chairman. Though there was a certification that the supporting papers were kept in the
office, these papers were not found in the records of the PCSO and Aguas did not have any of the records. The
certification was attached to the letter of Valencia to Villar dated June 29, 2010.
In the certification dated June 29, 2010 signed by Uriarte in the amount of P137 ,500,000, the witness also said that
the certification did not conform to the COA Circular because it only stated that the amount was disbursed from a
special intelligence fund, authorized and approved by the President under the disposition of the Office of the Vice
Chairman. Despite the statement certifying that there were documents for the audit, no documents were provided and
the same were not in the official files of PCSO . The certification was attached to a letter by Uriarte dated July 1, 2010
addressed to Villar.
In the certification dated October 19, 2009 signed by Uriarte in the amount of P2,500,000, the witness made the same
finding that it also did not conform to the COA Circular, as it did not specify the project for which the cash advance was
obtained and there were also no records in the PCSO. It was attached to the letter dated October 19, 2009.
Finally, in the certification dated February 9, 2010 signed by Uriarte in the amount of P73,993,846, the witness
likewise found that it did not conform with the requirements of the COA, as all it said was the amount was used for the
exercise of the functions of the PCSO Chairman and General Manager. The documents related to this were also not in
the PCSO records and Aguas did not submit the same. It was attached to a letter dated February 8, 2010 from Uriarte
to Villar.
There are two kinds of audit on disbursements of government funds: pre-audit and post-audit. Both are defined in
COA Circular 2009-002. Pre-audit is the examination of documents supporting the transaction, before these are paid
for and recorded. The auditor determines whether: (1) the proposed expenditure was in compliance with the
appropriate law, specific statutory authority or regulations; (2) sufficient funds are available to enable payment of the
claim; (3) the proposed expenditure is not illegal, irregular, extravagant, unconscionable or unnecessary, and (4) the
transaction is approved by the proper authority and duly supported by authentic underlying evidence. On the other
hand, the post-audit requirement is the process where the COA or the auditor will have to do exactly what was done in
the pre-audit, and in addition, the auditor must supplement what she did by tracing the transaction under audit to the
books of accounts, and that the transaction is all recorded in the books of accounts. The auditor, in post-audit, also
makes the final determination of whether the transaction was not illegal, irregular, extravagant, excessive,
unconscionable or unnecessary.
In this case, no audit was conducted. In a letter dated May 11, 2009 signed by Plaras, it was stated that a credit advice
was given. However, the letter did not conform to the requirements or form of a credit notice. Such form was in COA
Circular 2003-002, and should specify the liquidation report number, the amount, check numbers, and the action taken
by the auditor. The auditor should also include a certification that these have been audited. In this instance, no
certification that the transaction was audited was given by Plaras. Other similar letters did not conform with the COA
Circular. All transactions of the government must be subject to audit in accordance with the provisions of the
Constitution. Nevertheless, the requirements for audit are the same.
The effect of the issuance of the credit notice by the COA was that the agency will take it up in the books and credit
the cash advance. This is the seventh step in the flowchart. Once there is a cash advance, the liability of the officers
who obtained the cash advance would be recorded in the books. The credit notice, when received, would indicate that
the account was settled. The agency will credit the receivable or the cash advance, and remove from the books as a
liability of the person liable for the cash advance. The effect of this was that the financial liabilities of Uriarte and
Valencia were removed from the books, but they could still be subject to criminal liability based on Sec. 10 of COA
Circular 91-368 (Government Accounting and Auditing Manuals, Vol. 1, implementing P.O. 1445), which states: "The
settlement of an account whether or not on appeal has been made within the statutory period is no bar to criminal
prosecution against persons liable." From the 2008 COA Annual Audited Financial Statements of PCSO, it was seen
that the procedure was not followed because the liability of the officers was already credited even before the credit
notice was received. In the financial statements, it was stated that the amount due from officers and employees, which
should include the cash advances obtained by Uriarte and Valencia, were not included because the amount stated
therein was P35 million, while the total vouchers of Uriarte and Valencia was P86 million.
The witness also related that she traced the records of the CIF fund (since such was no longer stated as a receivable),
and reviewed whether it was recorded as an expense in 2008. She found out that the recorded CIF fund expense, as
recorded in the corporate operating budget as actually disbursed, was only P21,102,000. As such, she confronted her
accountants and asked them "Saan tinago itong amount na to?" The personnel in the accounting office said that the
balance of the P86 million or the additional P21 million was not recorded in the operating fund budget because they
used the prize fund and charity fund as instructed by Aguas. Journal Entry Voucher No. 8121443 dated December 31,
2008, signed by Elmer Camba, Aguas (Head of the Accounting Department), and Hutch Balleras (one of the staff in
the Accounting Department), showed that this procedure was done.
The contents of the Journal Entry Voucher are as follows:
(a) Accounts and Explanation: Due to other funds. This means that the amount of P63,750,000 was credited as
confidential expense from the operating fund. The amount was then removed from the operating fund, and it was
passed on to other funds.
(b) PF Miscellaneous, Account No. 424-1-L P41,250,000 and CF Miscellaneous for 424-2-G for P22,500,000. PF
Miscellaneous means Prize Fund Miscellaneous and CF stands for Charity Fund Miscellaneous. This means that
funds used to release the cash advances to Uriarte and Valencia were from the prize fund and charity.
Attached to the Journal Entry Voucher was a document which reads "Allocation of Confidential and Intelligence Fund
Expenses", and was the basis of Camba in doing the Journal Entry Voucher. In the same document, there was a
written annotation dated 12-31-2008 which reads that the adjustment of CIF, CF and IF, beneficiary of the fund is CF
and PF and signed by Aguas.
The year 2009 was a similar case, as the witness traced the recording of the credit notice at the end of 2009, and
despite the absence of the credit notice, the Accounting Department removed from the books of PCSO the liability of
Uriarte and Valencia, corresponding to the cash advances obtained in 2009. She based this finding on the COA
Annual Audit Report on the PCSO for the year ended December 31, 2009. It was stated in the Audit Report that the
total liability due from officers and employees was only P87,747,280 and it was less than the total cash advances of
Uriarte and Valencia, which was P138 million. As a result, the witness checked the corresponding entry for the
expenses in the corporate operating budget and found out that the same was understated. The CIF expenses were
only P24,968,300, as against the actual amount per vouchers, which was P138,420,875. Upon checking with the
Accounting Department, the department showed her another Journal Entry Voucher No. 9121157, dated December
29, 2009, where the personnel removed immediately the expense and recorded it as expense for the prize fund and
charity fund by the end of December 31.
The contents of the Journal Entry Voucher, especially the notation "due from'', means the accountability of those who
had cash advance was instead credited. It was removed, and the amount was P106 million. The entry was confidential
expense for P15,958,020 and then the due to other funds was P90,428,780. The explanation for "424" was found in
the middle part, stating: "424-1-L" of miscellaneous prize fund was used in the amount of P58,502,740 and the charity<