[ G.R. No.

142396, February 11, 2003 ]

KHOSROW MINUCHER, PETITIONER, VS. HON. COURT OF
APPEALS AND ARTHUR SCALZO, RESPONDENTS.

DECISION

VITUG, J.:

Sometime in May 1986, an Information for violation of Section 4 of Republic Act No.
6425, otherwise also known as the “Dangerous Drugs Act of 1972,” was filed
against petitioner Khosrow Minucher and one Abbas Torabian with the Regional
Trial Court, Branch 151, of Pasig City. The criminal charge followed a “buy-bust
operation” conducted by the Philippine police narcotic agents in the house of
Minucher, an Iranian national, where a quantity of heroin, a prohibited drug, was
said to have been seized. The narcotic agents were accompanied by private
respondent Arthur Scalzo who would, in due time, become one of the principal
witnesses for the prosecution. On 08 January 1988, Presiding Judge Eutropio
Migrino rendered a decision acquitting the two accused.

On 03 August 1988, Minucher filed Civil Case No. 88-45691 before the Regional
Trial Court (RTC), Branch 19, of Manila for damages on account of what he claimed
to have been trumped-up charges of drug trafficking made by Arthur Scalzo. The
Manila RTC detailed what it had found to be the facts and circumstances
surrounding the case.
"The testimony of the plaintiff disclosed that he is an Iranian national. He came to
the Philippines to study in the University of the Philippines in 1974. In 1976, under
the regime of the Shah of Iran, he was appointed Labor Attaché for the Iranian
Embassies in Tokyo, Japan and Manila, Philippines. When the Shah of Iran was
deposed by Ayatollah Khomeini, plaintiff became a refugee of the United Nations
and continued to stay in the Philippines. He headed the Iranian National Resistance
Movement in the Philippines.

“He came to know the defendant on May 13, 1986, when the latter was brought to
his house and introduced to him by a certain Jose Iñigo, an informer of the
Intelligence Unit of the military. Jose Iñigo, on the other hand, was met by plaintiff
at the office of Atty. Crisanto Saruca, a lawyer for several Iranians whom plaintiff
assisted as head of the anti-Khomeini movement in the Philippines.

”During his first meeting with the defendant on May 13, 1986, upon the
introduction of Jose Iñigo, the defendant expressed his interest in buying caviar. As
a matter of fact, he bought two kilos of caviar from plaintiff and paid P10,000.00 for
it. Selling caviar, aside from that of Persian carpets, pistachio nuts and other
Iranian products was his business after the Khomeini government cut his pension of
over $3,000.00 per month. During their introduction in that meeting, the defendant
gave the plaintiff his calling card, which showed that he is working at the US
Embassy in the Philippines, as a special agent of the Drug Enforcement
Administration, Department of Justice, of the United States, and gave his address
as US Embassy, Manila. At the back of the card appears a telephone number in
defendant’s own handwriting, the number of which he can also be contacted.

“It was also during this first meeting that plaintiff expressed his desire to obtain a
US Visa for his wife and the wife of a countryman named Abbas Torabian. The
defendant told him that he [could] help plaintiff for a fee of $2,000.00 per visa.
Their conversation, however, was more concentrated on politics, carpets and
caviar. Thereafter, the defendant promised to see plaintiff again.

“On May 19, 1986, the defendant called the plaintiff and invited the latter for dinner
at Mario's Restaurant at Makati. He wanted to buy 200 grams of caviar. Plaintiff
brought the merchandize but for the reason that the defendant was not yet there,
he requested the restaurant people to x x x place the same in the refrigerator.
Defendant, however, came and plaintiff gave him the caviar for which he was paid.
Then their conversation was again focused on politics and business.

“On May 26, 1986, defendant visited plaintiff again at the latter's residence for 18
years at Kapitolyo, Pasig. The defendant wanted to buy a pair of carpets which
plaintiff valued at $27,900.00. After some haggling, they agreed at $24,000.00. For
the reason that defendant did not yet have the money, they agreed that defendant
would come back the next day. The following day, at 1:00 p.m., he came back with
his $24,000.00, which he gave to the plaintiff, and the latter, in turn, gave him the
pair of carpets.

“At about 3:00 in the afternoon of May 27, 1986, the defendant came back again to
plaintiff's house and directly proceeded to the latter's bedroom, where the latter
and his countryman, Abbas Torabian, were playing chess. Plaintiff opened his safe
in the bedroom and obtained $2,000.00 from it, gave it to the defendant for the
latter's fee in obtaining a visa for plaintiff's wife. The defendant told him that he
would be leaving the Philippines very soon and requested him to come out of the
house for a while so that he can introduce him to his cousin waiting in a cab.
Without much ado, and without putting on his shirt as he was only in his pajama
pants, he followed the defendant where he saw a parked cab opposite the street. To
his complete surprise, an American jumped out of the cab with a drawn high-
powered gun. He was in the company of about 30 to 40 Filipino soldiers with 6
Americans, all armed. He was handcuffed and after about 20 minutes in the street,
he was brought inside the house by the defendant. He was made to sit down while
in handcuffs while the defendant was inside his bedroom. The defendant came out
of the bedroom and out from defendant's attaché case, he took something and
placed it on the table in front of the plaintiff. They also took plaintiff's wife who was
at that time at the boutique near his house and likewise arrested Torabian, who
was playing chess with him in the bedroom and both were handcuffed together.
Plaintiff was not told why he was being handcuffed and why the privacy of his
house, especially his bedroom was invaded by defendant. He was not allowed to
use the telephone. In fact, his telephone was unplugged. He asked for any warrant,
but the defendant told him to `shut up.’ He was nevertheless told that he would be
able to call for his lawyer who can defend him.

“The plaintiff took note of the fact that when the defendant invited him to come out
to meet his cousin, his safe was opened where he kept the $24,000.00 the
defendant paid for the carpets and another $8,000.00 which he also placed in the
safe together with a bracelet worth $15,000.00 and a pair of earrings worth
$10,000.00. He also discovered missing upon his release his 8 pieces hand-made
Persian carpets, valued at $65,000.00, a painting he bought for P30,000.00
together with his TV and betamax sets. He claimed that when he was handcuffed,
the defendant took his keys from his wallet. There was, therefore, nothing left in his
house.

“That his arrest as a heroin trafficker x x x had been well publicized throughout the
world, in various newspapers, particularly in Australia, America, Central Asia and in
the Philippines. He was identified in the papers as an international drug trafficker. x
xx

In fact, the arrest of defendant and Torabian was likewise on television, not only in
the Philippines, but also in America and in Germany. His friends in said places
informed him that they saw him on TV with said news.

“After the arrest made on plaintiff and Torabian, they were brought to Camp Crame
handcuffed together, where they were detained for three days without food and
water."[1]
During the trial, the law firm of Luna, Sison and Manas, filed a special appearance
for Scalzo and moved for extension of time to file an answer pending a supposed
advice from the United States Department of State and Department of Justice on
the defenses to be raised. The trial court granted the motion. On 27 October 1988,
Scalzo filed another special appearance to quash the summons on the ground that
he, not being a resident of the Philippines and the action being one in personam,
was beyond the processes of the court. The motion was denied by the court, in its
order of 13 December 1988, holding that the filing by Scalzo of a motion for
extension of time to file an answer to the complaint was a voluntary appearance
equivalent to service of summons which could likewise be construed a waiver of the
requirement of formal notice. Scalzo filed a motion for reconsideration of the court
order, contending that a motion for an extension of time to file an answer was not a
voluntary appearance equivalent to service of summons since it did not seek an
affirmative relief. Scalzo argued that in cases involving the United States
government, as well as its agencies and officials, a motion for extension was
peculiarly unavoidable due to the need (1) for both the Department of State and
the Department of Justice to agree on the defenses to be raised and (2) to refer the
case to a Philippine lawyer who would be expected to first review the case. The
court a quo denied the motion for reconsideration in its order of 15 October 1989.

Scalzo filed a petition for review with the Court of Appeals, there docketed CA-G.R.
No. 17023, assailing the denial. In a decision, dated 06 October 1989, the appellate
court denied the petition and affirmed the ruling of the trial court. Scalzo then
elevated the incident in a petition for review on certiorari, docketed G.R. No.
91173, to this Court. The petition, however, was denied for its failure to comply
with SC Circular No. 1-88; in any event, the Court added, Scalzo had failed to show
that the appellate court was in error in its questioned judgment.

Meanwhile, at the court a quo, an order, dated 09 February 1990, was issued (a)
declaring Scalzo in default for his failure to file a responsive pleading (answer) and
(b) setting the case for the reception of evidence. On 12 March 1990, Scalzo filed a
motion to set aside the order of default and to admit his answer to the complaint.
Granting the motion, the trial court set the case for pre-trial. In his answer, Scalzo
denied the material allegations of the complaint and raised the affirmative defenses
(a) of Minucher’s failure to state a cause of action in his complaint and (b) that
Scalzo had acted in the discharge of his official duties as being merely an agent of
the Drug Enforcement Administration of the United States Department of Justice.
Scalzo interposed a counterclaim of P100,000.00 to answer for attorneys' fees and
expenses of litigation.

Then, on 14 June 1990, after almost two years since the institution of the civil case,
Scalzo filed a motion to dismiss the complaint on the ground that, being a special
agent of the United States Drug Enforcement Administration, he was entitled to
diplomatic immunity. He attached to his motion Diplomatic Note No. 414 of the
United States Embassy, dated 29 May 1990, addressed to the Department of
Foreign Affairs of the Philippines and a Certification, dated 11 June 1990, of Vice
Consul Donna Woodward, certifying that the note is a true and faithful copy of its
original. In an order of 25 June 1990, the trial court denied the motion to dismiss.

On 27 July 1990, Scalzo filed a petition for certiorari with injunction with this Court,
docketed G.R. No. 94257 and entitled "Arthur W. Scalzo, Jr., vs. Hon. Wenceslao
Polo, et al.," asking that the complaint in Civil Case No. 88-45691 be ordered
dismissed. The case was referred to the Court of Appeals, there docketed CA-G.R.
SP No. 22505, per this Court’s resolution of 07 August 1990. On 31 October 1990,
the Court of Appeals promulgated its decision sustaining the diplomatic immunity of
Scalzo and ordering the dismissal of the complaint against him. Minucher filed a
petition for review with this Court, docketed G.R. No. 97765 and entitled "Khosrow
Minucher vs. the Honorable Court of Appeals, et. al.” (cited in 214 SCRA 242),
appealing the judgment of the Court of Appeals. In a decision, dated 24 September
1992, penned by Justice (now Chief Justice) Hilario Davide, Jr., this Court reversed
the decision of the appellate court and remanded the case to the lower court for
trial. The remand was ordered on the theses (a) that the Court of Appeals erred in
granting the motion to dismiss of Scalzo for lack of jurisdiction over his person
without even considering the issue of the authenticity of Diplomatic Note No. 414
and (b) that the complaint contained sufficient allegations to the effect that Scalzo
committed the imputed acts in his personal capacity and outside the scope of his
official duties and, absent any evidence to the contrary, the issue on Scalzo’s
diplomatic immunity could not be taken up.

The Manila RTC thus continued with its hearings on the case. On 17 November
1995, the trial court reached a decision; it adjudged:
“WHEREFORE, and in view of all the foregoing considerations, judgment is hereby
rendered for the plaintiff, who successfully established his claim by sufficient
evidence, against the defendant in the manner following:
"`Adjudging defendant liable to plaintiff in actual and compensatory damages of
P520,000.00; moral damages in the sum of P10 million; exemplary damages in the
sum of P100,000.00; attorney's fees in the sum of P200,000.00 plus costs.

`The Clerk of the Regional Trial Court, Manila, is ordered to take note of the lien of
the Court on this judgment to answer for the unpaid docket fees considering that
the plaintiff in this case instituted this action as a pauper litigant.’"[2]
While the trial court gave credence to the claim of Scalzo and the evidence
presented by him that he was a diplomatic agent entitled to immunity as such, it
ruled that he, nevertheless, should be held accountable for the acts complained of
committed outside his official duties. On appeal, the Court of Appeals reversed the
decision of the trial court and sustained the defense of Scalzo that he was
sufficiently clothed with diplomatic immunity during his term of duty and thereby
immune from the criminal and civil jurisdiction of the “Receiving State” pursuant to
the terms of the Vienna Convention.

Hence, this recourse by Minucher. The instant petition for review raises a two-fold
issue: (1) whether or not the doctrine of conclusiveness of judgment, following the
decision rendered by this Court in G.R. No. 97765, should have precluded the Court
of Appeals from resolving the appeal to it in an entirely different manner, and (2)
whether or not Arthur Scalzo is indeed entitled to diplomatic immunity.

The doctrine of conclusiveness of judgment, or its kindred rule of res judicata,

would require 1) the finality of the prior judgment, 2) a valid jurisdiction over the
subject matter and the parties on the part of the court that renders it, 3) a
judgment on the merits, and 4) an identity of the parties, subject matter and
causes of action.[3] Even while one of the issues submitted in G.R. No. 97765 -
"whether or not public respondent Court of Appeals erred in ruling that private
respondent Scalzo is a diplomat immune from civil suit conformably with the Vienna
Convention on Diplomatic Relations" - is also a pivotal question raised in the instant
petition, the ruling in G.R. No. 97765, however, has not resolved that point with
finality. Indeed, the Court there has made this observation -
"It may be mentioned in this regard that private respondent himself, in his Pre-trial
Brief filed on 13 June 1990, unequivocally states that he would present
documentary evidence consisting of DEA records on his investigation and
surveillance of plaintiff and on his position and duties as DEA special agent in
Manila. Having thus reserved his right to present evidence in support of his
position, which is the basis for the alleged diplomatic immunity, the barren self-
serving claim in the belated motion to dismiss cannot be relied upon for a
reasonable, intelligent and fair resolution of the issue of diplomatic immunity."[4]
Scalzo contends that the Vienna Convention on Diplomatic Relations, to which the
Philippines is a signatory, grants him absolute immunity from suit, describing his
functions as an agent of the United States Drugs Enforcement Agency as
“conducting surveillance operations on suspected drug dealers in the Philippines
believed to be the source of prohibited drugs being shipped to the U.S., (and)
having ascertained the target, (he then) would inform the Philippine narcotic agents
(to) make the actual arrest." Scalzo has submitted to the trial court a number of
documents -

1. Exh. '2' - Diplomatic Note No. 414 dated 29 May 1990;

2. Exh. '1' - Certification of Vice Consul Donna K. Woodward dated 11

June 1990;

3. Exh. '5' - Diplomatic Note No. 757 dated 25 October 1991;

4. Exh. '6' - Diplomatic Note No. 791 dated 17 November 1992; and

5. Exh. '7' - Diplomatic Note No. 833 dated 21 October 1988.

6. Exh. '3' - 1st Indorsement of the Hon. Jorge R. Coquia, Legal Adviser,
Department of Foreign Affairs, dated 27 June 1990 forwarding
Embassy Note No. 414 to the Clerk of Court of RTC Manila, Branch 19
(the trial court);

7. Exh. '4' - Diplomatic Note No. 414, appended to the 1st Indorsement
(Exh. '3'); and

8. Exh. '8' - Letter dated 18 November 1992 from the Office of the
Protocol, Department of Foreign Affairs, through Asst. Sec. Emmanuel
Fernandez, addressed to the Chief Justice of this Court.[5]

The documents, according to Scalzo, would show that: (1) the United States
Embassy accordingly advised the Executive Department of the Philippine
Government that Scalzo was a member of the diplomatic staff of the United States
diplomatic mission from his arrival in the Philippines on 14 October 1985 until his
departure on 10 August 1988; (2) that the United States Government was firm
from the very beginning in asserting the diplomatic immunity of Scalzo with respect
to the case pursuant to the provisions of the Vienna Convention on Diplomatic
Relations; and (3) that the United States Embassy repeatedly urged the
Department of Foreign Affairs to take appropriate action to inform the trial court of
Scalzo’s diplomatic immunity. The other documentary exhibits were presented to
indicate that: (1) the Philippine government itself, through its Executive
Department, recognizing and respecting the diplomatic status of Scalzo, formally
advised the “Judicial Department” of his diplomatic status and his entitlement to all
diplomatic privileges and immunities under the Vienna Convention; and (2) the
Department of Foreign Affairs itself authenticated Diplomatic Note No. 414. Scalzo
additionally presented Exhibits "9" to "13" consisting of his reports of investigation
on the surveillance and subsequent arrest of Minucher, the certification of the Drug
Enforcement Administration of the United States Department of Justice that Scalzo
was a special agent assigned to the Philippines at all times relevant to the
complaint, and the special power of attorney executed by him in favor of his
previous counsel[6] to show (a) that the United States Embassy, affirmed by its Vice
Consul, acknowledged Scalzo to be a member of the diplomatic staff of the United
States diplomatic mission from his arrival in the Philippines on 14 October 1985
until his departure on 10 August 1988, (b) that, on May 1986, with the cooperation
of the Philippine law enforcement officials and in the exercise of his functions as
member of the mission, he investigated Minucher for alleged trafficking in a
prohibited drug, and (c) that the Philippine Department of Foreign Affairs itself
recognized that Scalzo during his tour of duty in the Philippines (14 October 1985
up to 10 August 1988) was listed as being an Assistant Attaché of the United States
diplomatic mission and accredited with diplomatic status by the Government of the
Philippines. In his Exhibit 12, Scalzo described the functions of the overseas office
of the United States Drugs Enforcement Agency, i.e., (1) to provide criminal
investigative expertise and assistance to foreign law enforcement agencies on
narcotic and drug control programs upon the request of the host country, 2) to
establish and maintain liaison with the host country and counterpart foreign law
enforcement officials, and 3) to conduct complex criminal investigations involving
international criminal conspiracies which affect the interests of the United States.

The Vienna Convention on Diplomatic Relations was a codification of centuries-old

customary law and, by the time of its ratification on 18 April 1961, its rules of law
had long become stable. Among the city states of ancient Greece, among the
peoples of the Mediterranean before the establishment of the Roman Empire, and
among the states of India, the person of the herald in time of war and the person of
the diplomatic envoy in time of peace were universally held sacrosanct.[7] By the
end of the 16th century, when the earliest treatises on diplomatic law were
published, the inviolability of ambassadors was firmly established as a rule of
customary international law.[8] Traditionally, the exercise of diplomatic intercourse
among states was undertaken by the head of state himself, as being the
preeminent embodiment of the state he represented, and the foreign secretary, the
official usually entrusted with the external affairs of the state. Where a state would
wish to have a more prominent diplomatic presence in the receiving state, it would
then send to the latter a diplomatic mission. Conformably with the Vienna
Convention, the functions of the diplomatic mission involve, by and large, the
representation of the interests of the sending state and promoting friendly relations
with the receiving state.[9]

The Convention lists the classes of heads of diplomatic missions to include (a)
ambassadors or nuncios accredited to the heads of state,[10] (b)
envoys,[11] ministers or internuncios accredited to the heads of states; and
(c) charges d' affairs[12] accredited to the ministers of foreign affairs.[13] Comprising
the "staff of the (diplomatic) mission" are the diplomatic staff, the administrative
staff and the technical and service staff. Only the heads of missions, as well as
members of the diplomatic staff, excluding the members of the administrative,
technical and service staff of the mission, are accorded diplomatic rank. Even while
the Vienna Convention on Diplomatic Relations provides for immunity to the
members of diplomatic missions, it does so, nevertheless, with an understanding
that the same be restrictively applied. Only "diplomatic agents," under the terms of
the Convention, are vested with blanket diplomatic immunity from civil and criminal
suits. The Convention defines "diplomatic agents" as the heads of missions or
members of the diplomatic staff, thus impliedly withholding the same privileges
from all others. It might bear stressing that even consuls, who represent their
respective states in concerns of commerce and navigation and perform certain
administrative and notarial duties, such as the issuance of passports and visas,
authentication of documents, and administration of oaths, do not ordinarily enjoy
the traditional diplomatic immunities and privileges accorded diplomats, mainly for
the reason that they are not charged with the duty of representing their states in
political matters. Indeed, the main yardstick in ascertaining whether a
person is a diplomat entitled to immunity is the determination of whether
or not he performs duties of diplomatic nature.

Scalzo asserted, particularly in his Exhibits “9” to “13,” that he was an Assistant
Attaché of the United States diplomatic mission and was accredited as such by the
Philippine Government. An attaché belongs to a category of officers in the
diplomatic establishment who may be in charge of its cultural, press, administrative
or financial affairs. There could also be a class of attaches belonging to certain
ministries or departments of the government, other than the foreign ministry or
department, who are detailed by their respective ministries or departments with the
embassies such as the military, naval, air, commercial, agricultural, labor, science,
and customs attaches, or the like. Attaches assist a chief of mission in his duties
and are administratively under him, but their main function is to observe, analyze
and interpret trends and developments in their respective fields in the host country
and submit reports to their own ministries or departments in the home
government.[14] These officials are not generally regarded as members of the
diplomatic mission, nor are they normally designated as having diplomatic rank.

In an attempt to prove his diplomatic status, Scalzo presented Diplomatic Notes

Nos. 414, 757 and 791, all issued post litem motam, respectively, on 29 May 1990,
25 October 1991 and 17 November 1992. The presentation did nothing much to
alleviate the Court's initial reservations in G.R. No. 97765, viz:
"While the trial court denied the motion to dismiss, the public respondent gravely
abused its discretion in dismissing Civil Case No. 88-45691 on the basis of an
erroneous assumption that simply because of the diplomatic note, the private
respondent is clothed with diplomatic immunity, thereby divesting the trial court of
jurisdiction over his person.

“x x x xxx xxx

“And now, to the core issue - the alleged diplomatic immunity of the private
respondent. Setting aside for the moment the issue of authenticity raised by the
petitioner and the doubts that surround such claim, in view of the fact that it took
private respondent one (1) year, eight (8) months and seventeen (17) days from
the time his counsel filed on 12 September 1988 a Special Appearance and Motion
asking for a first extension of time to file the Answer because the Departments of
State and Justice of the United States of America were studying the case for the
purpose of determining his defenses, before he could secure the Diplomatic Note
from the US Embassy in Manila, and even granting for the sake of argument that
such note is authentic, the complaint for damages filed by petitioner cannot be
peremptorily dismissed.

“x x x xxx xxx

"There is of course the claim of private respondent that the acts imputed to him
were done in his official capacity. Nothing supports this self-serving claim other
than the so-called Diplomatic Note. x x x. The public respondent then should have
sustained the trial court's denial of the motion to dismiss. Verily, it should have
been the most proper and appropriate recourse. It should not have been
overwhelmed by the self-serving Diplomatic Note whose belated issuance is even
suspect and whose authenticity has not yet been proved. The undue haste with
which respondent Court yielded to the private respondent's claim is arbitrary."
A significant document would appear to be Exhibit No. 08, dated 08 November
1992, issued by the Office of Protocol of the Department of Foreign Affairs and
signed by Emmanuel C. Fernandez, Assistant Secretary, certifying that "the records
of the Department (would) show that Mr. Arthur W. Scalzo, Jr., during his term of
office in the Philippines (from 14 October 1985 up to 10 August 1988) was listed as
an Assistant Attaché of the United States diplomatic mission and was, therefore,
accredited diplomatic status by the Government of the Philippines." No certified true
copy of such "records," the supposed bases for the belated issuance, was presented
in evidence.

Concededly, vesting a person with diplomatic immunity is a prerogative of the

executive branch of the government. In World Health Organization vs.
Aquino,[15] the Court has recognized that, in such matters, the hands of the courts
are virtually tied. Amidst apprehensions of indiscriminate and incautious grant of
immunity, designed to gain exemption from the jurisdiction of courts, it should
behoove the Philippine government, specifically its Department of Foreign Affairs, to
be most circumspect, that should particularly be no less than compelling, in its post
litem motam issuances. It might be recalled that the privilege is not an immunity
from the observance of the law of the territorial sovereign or from ensuing legal
liability; it is, rather, an immunity from the exercise of territorial jurisdiction.[16] The
government of the United States itself, which Scalzo claims to be acting for, has
formulated its standards for recognition of a diplomatic agent. The State
Department policy is to only concede diplomatic status to a person who
possesses an acknowledged diplomatic title and “performs duties of
diplomatic nature.”[17] Supplementary criteria for accreditation are the possession
of a valid diplomatic passport or, from States which do not issue such passports, a
diplomatic note formally representing the intention to assign the person to
diplomatic duties, the holding of a non-immigrant visa, being over twenty-one
years of age, and performing diplomatic functions on an essentially full-time
basis.[18] Diplomatic missions are requested to provide the most accurate and
descriptive job title to that which currently applies to the duties performed. The
Office of the Protocol would then assign each individual to the appropriate
functional category.[19]

But while the diplomatic immunity of Scalzo might thus remain contentious, it was
sufficiently established that, indeed, he worked for the United States Drug
Enforcement Agency and was tasked to conduct surveillance of suspected drug
activities within the country on the dates pertinent to this case. If it should be
ascertained that Arthur Scalzo was acting well within his assigned functions when
he committed the acts alleged in the complaint, the present controversy could then
be resolved under the related doctrine of State Immunity from Suit.

The precept that a State cannot be sued in the courts of a foreign state is a
long-standing rule of customary international law then closely identified with the
personal immunity of a foreign sovereign from suit[20] and, with the emergence of
democratic states, made to attach not just to the person of the head of state, or his
representative, but also distinctly to the state itself in its sovereign capacity.[21] If
the acts giving rise to a suit are those of a foreign government done by its foreign
agent, although not necessarily a diplomatic personage, but acting in his official
capacity, the complaint could be barred by the immunity of the foreign sovereign
from suit without its consent. Suing a representative of a state is believed to be, in
effect, suing the state itself. The proscription is not accorded for the benefit of an
individual but for the State, in whose service he is, under the maxim - par in
parem, non habet imperium - that all states are sovereign equals and cannot assert
jurisdiction over one another.[22] The implication, in broad terms, is that if the
judgment against an official would require the state itself to perform an affirmative
act to satisfy the award, such as the appropriation of the amount needed to pay the
damages decreed against him, the suit must be regarded as being against the state
itself, although it has not been formally impleaded.[23]

In United States of America vs. Guinto,[24] involving officers of the United States Air
Force and special officers of the Air Force Office of Special Investigators charged
with the duty of preventing the distribution, possession and use of prohibited drugs,
this Court has ruled -
"While the doctrine (of state immunity) appears to prohibit only suits against the
state without its consent, it is also applicable to complaints filed against officials of
the state for acts allegedly performed by them in the discharge of their duties. x x
x. It cannot for a moment be imagined that they were acting in their private or
unofficial capacity when they apprehended and later testified against the
complainant. It follows that for discharging their duties as agents of the United
States, they cannot be directly impleaded for acts imputable to their principal,
which has not given its consent to be sued. x x x As they have acted on behalf of
the government, and within the scope of their authority, it is that government, and
not the petitioners personally, [who were] responsible for their acts."[25]
This immunity principle, however, has its limitations. Thus, Shauf vs. Court of
Appeals[26] elaborates:
“It is a different matter where the public official is made to account in his capacity
as such for acts contrary to law and injurious to the rights of the plaintiff. As was
clearly set forth by Justice Zaldivar in Director of the Bureau of
Telecommunications, et al., vs. Aligaen, et al. (33 SCRA 368): `Inasmuch as the
State authorizes only legal acts by its officers, unauthorized acts of government
officials or officers are not acts of the State, and an action against the officials or
officers by one whose rights have been invaded or violated by such acts, for the
protection of his rights, is not a suit against the State within the rule of immunity of
the State from suit. In the same tenor, it has been said that an action at law or suit
in equity against a State officer or the director of a State department on the ground
that, while claiming to act for the State, he violates or invades the personal and
property rights of the plaintiff, under an unconstitutional act or under an
assumption of authority which he does not have, is not a suit against the State
within the constitutional provision that the State may not be sued without its
consent. The rationale for this ruling is that the doctrine of state immunity cannot
be used as an instrument for perpetrating an injustice.

“x x x xxx xxx

“(T)he doctrine of immunity from suit will not apply and may not be invoked where
the public official is being sued in his private and personal capacity as an ordinary
citizen. The cloak of protection afforded the officers and agents of the government
is removed the moment they are sued in their individual capacity. This situation
usually arises where the public official acts without authority or in excess of the
powers vested in him. It is a well-settled principle of law that a public official may
be liable in his personal private capacity for whatever damage he may have caused
by his act done with malice and in bad faith or beyond the scope of his authority
and jurisdiction.”[27]
A foreign agent, operating within a territory, can be cloaked with immunity from
suit but only as long as it can be established that he is acting within the directives
of the sending state. The consent of the host state is an indispensable requirement
of basic courtesy between the two sovereigns. Guinto and Shauf both involve
officers and personnel of the United States, stationed within Philippine territory,
under the RP-US Military Bases Agreement. While evidence is wanting to show any
similar agreement between the governments of the Philippines and of the United
States (for the latter to send its agents and to conduct surveillance and related
activities of suspected drug dealers in the Philippines), the consent or imprimatur of
the Philippine government to the activities of the United States Drug Enforcement
Agency, however, can be gleaned from the facts heretofore elsewhere mentioned.
The official exchanges of communication between agencies of the government of
the two countries, certifications from officials of both the Philippine Department of
Foreign Affairs and the United States Embassy, as well as the participation of
members of the Philippine Narcotics Command in the “buy-bust operation”
conducted at the residence of Minucher at the behest of Scalzo, may be inadequate
to support the "diplomatic status" of the latter but they give enough indication that
the Philippine government has given its imprimatur, if not consent, to the activities
within Philippine territory of agent Scalzo of the United States Drug Enforcement
Agency. The job description of Scalzo has tasked him to conduct surveillance on
suspected drug suppliers and, after having ascertained the target, to inform local
law enforcers who would then be expected to make the arrest. In conducting
surveillance activities on Minucher, later acting as the poseur-buyer during the buy-
bust operation, and then becoming a principal witness in the criminal case against
Minucher, Scalzo hardly can be said to have acted beyond the scope of his official
function or duties.
All told, this Court is constrained to rule that respondent Arthur Scalzo, an agent of
the United States Drug Enforcement Agency allowed by the Philippine government
to conduct activities in the country to help contain the problem on the drug traffic,
is entitled to the defense of state immunity from suit.

WHEREFORE, on the foregoing premises, the petition is DENIED. No costs.

SO ORDERED.

[ G.R. No. 125865, March 26, 2001 ]

JEFFREY LIANG (HUEFENG), PETITIONER, VS. PEOPLE OF
THE PHILIPPINES, RESPONDENT.

RESOLUTION

YNARES-SANTIAGO, J.:

This resolves petitioner's Motion for Reconsideration of our Decision dated January
28, 2000, denying the petition for review.

The Motion is anchored on the following arguments:

1) THE DFA'S DETERMINATION OF IMMUNITY IS A POLITICAL QUESTION TO
BE MADE BY THE EXECUTIVE BRANCH OF THE GOVERNMENT AND IS
CONCLUSIVE UPON THE COURTS.

2) THE IMMUNITY OF INTERNATIONAL ORGANIZATIONS IS ABSOLUTE.

3) THE IMMUNITY EXTENDS TO ALL STAFF OF THE ASIAN DEVELOPMENT

BANK (ADB).

4) DUE PROCESS WAS FULLY AFFORDED THE COMPLAINANT TO REBUT

THE DFA PROTOCOL.

5) THE DECISION OF JANUARY 28, 2000 ERRONEOUSLY MADE A FINDING OF

FACT ON THE MERITS, NAMELY, THE SLANDERING OF A PERSON WHICH
PREJUDGED PETITIONER'S CASE BEFORE THE METROPOLITAN TRIAL
COURT (MTC)-MANDALUYONG.

6) THE VIENNA CONVENTION ON DIPLOMATIC RELATIONS IS NOT

APPLICABLE TO THIS CASE.
This case has its origin in two criminal Informations[1] for grave oral defamation
filed against petitioner, a Chinese national who was employed as an Economist by
the Asian Development Bank (ADB), alleging that on separate occasions on January
28 and January 31, 1994, petitioner allegedly uttered defamatory words to Joyce V.
Cabal, a member of the clerical staff of ADB. On April 13, 1994, the Metropolitan
Trial Court of Mandaluyong City, acting pursuant to an advice from the Department
of Foreign Affairs that petitioner enjoyed immunity from legal processes, dismissed
the criminal Informations against him. On a petition for certiorari and mandamus
filed by the People, the Regional Trial Court of Pasig City, Branch 160, annulled and
set aside the order of the Metropolitan Trial Court dismissing the criminal cases.[2]

Petitioner, thus, brought a petition for review with this Court. On January 28, 2000,
we rendered the assailed Decision denying the petition for review. We ruled, in
essence, that the immunity granted to officers and staff of the ADB is not absolute;
it is limited to acts performed in an official capacity. Furthermore, we held that the
immunity cannot cover the commission of a crime such as slander or oral
defamation in the name of official duty.

On October 18, 2000, the oral arguments of the parties were heard. This Court also
granted the Motion for Intervention of the Department of Foreign Affairs.
Thereafter, the parties were directed to submit their respective memorandum.

For the most part, petitioner's Motion for Reconsideration deals with the diplomatic
immunity of the ADB, its officials and staff, from legal and judicial processes in the
Philippines, as well as the constitutional and political bases thereof. It should be
made clear that nowhere in the assailed Decision is diplomatic immunity denied,
even remotely. The issue in this case, rather, boils down to whether or not the
statements allegedly made by petitioner were uttered while in the performance of
his official functions, in order for this case to fall squarely under the provisions of
Section 45 (a) of the "Agreement Between the Asian Development Bank and the
Government of the Republic of the Philippines Regarding the Headquarters of the
Asian Development Bank," to wit:
Officers ands staff of the Bank, including for the purpose of this Article experts and
consultants performing missions for the Bank, shall enjoy the following privileges
and immunities:
(a) Immunity from legal process with respect to acts performed by them in their
official capacity except when the Bank waives the immunity.
After a careful deliberation of the arguments raised in petitioner's and intervenor's
Motions for Reconsideration, we find no cogent reason to disturb our Decision of
January 28, 2000. As we have stated therein, the slander of a person, by any
stretch, cannot be considered as falling within the purview of the immunity granted
to ADB officers and personnel. Petitioner argues that the Decision had the effect of
prejudging the criminal case for oral defamation against him. We wish to stress that
it did not. What we merely stated therein is that slander, in general, cannot be
considered as an act performed in an official capacity. The issue of whether or not
petitioner's utterances constituted oral defamation is still for the trial court to
determine.

WHEREFORE, in view of the foregoing, the Motions for Reconsideration filed by

petitioner and intervenor Department of Foreign Affairs
are DENIED with FINALITY.

SO ORDERED.

Davide, Jr., C.J., join the concurring opinion of Mr. Justice Puno.
Kapunan, and Pardo, JJ., concur.
Puno, J., Pls. See concurring opinion.

Criminal Cases Nos. 53170 & 53171 of the Metropolitan Trial Court of
[1]

Mandaluyong City, Branch 60, presided by Hon. Ma. Luisa Quijano- Padilla.

SCA Case No. 743 of the Regional Trial Court of Pasig City, Branch 160, presided
[2]

by Hon. Mariano M. Umali.

CONCURRING OPINION

PUNO, J.:

For resolution is the Motion for Reconsideration filed by petitioner Jeffrey Liang of
this Court's decision dated January 28, 2000 which denied the petition for review.
We there held that: the protocol communication of the Department of Foreign
Affairs to the effect that petitioner Liang is covered by immunity is only preliminary
and has no binding effect in courts; the immunity provided for under Section 45(a)
of the Headquarters Agreement is subject to the condition that the act be done in
an "official capacity"; that slandering a person cannot be said to have been done in
an "official capacity" and, hence, it is not covered by the immunity agreement;
under the Vienna Convention on Diplomatic Relations, a diplomatic agent, assuming
petitioner is such, enjoys immunity from criminal jurisdiction of the receiving state
except in the case of an action relating to any professional or commercial activity
exercised by the diplomatic agent in the receiving state outside his official
functions; the commission of a crime is not part of official duty; and that a
preliminary investigation is not a matter of right in cases cognizable by the
Metropolitan Trial Court.

Petitioner's motion for reconsideration is anchored on the following arguments:

1. The DFA's determination of immunity is a political question to be made

by the executive branch of the government and is conclusive upon the
courts;

2. The immunity of international organizations is absolute;

 3. The immunity extends to all staff of the Asian Development Bank
(ADB);

4. Due process was fully accorded the complainant to rebut the DFA
protocol;

5. The decision of January 28, 2000 erroneously made a finding of fact on

the merits, namely, the slandering of a person which prejudged
petitioner's case before the Metropolitan Trial Court (MTC)-
Mandaluyong; and

6. The Vienna Convention on diplomatic relations is not applicable to this

case.

Petitioner contends that a determination of a person's diplomatic immunity by the

Department of Foreign Affairs is a political question. It is solely within the
prerogative of the executive department and is conclusive upon the courts. In
support of his submission, petitioner cites the following cases: WHO vs.
Aquino;[1] International Catholic Migration Commission vs. Calleja;[2] The
Holy See vs. Rosario, Jr.;[3] Lasco vs. United Nations;[4] and DFA vs. NLRC.[5]

It is further contended that the immunity conferred under the ADB Charter
and the Headquarters Agreement is absolute. It is designed to safeguard the
autonomy and independence of international organizations against interference
from any authority external to the organizations. It is necessary to allow such
organizations to discharge their entrusted functions effectively. The only exceptions
to this immunity is when there is an implied or express waiver or when the
immunity is expressly limited by statute. The exception allegedly has no application
to the case at bar.

Petitioner likewise urges that the international organization's immunity from local
jurisdiction empowers the ADB alone to determine what constitutes "official
acts" and the same cannot be subject to different interpretations by the
member states. It asserts that the Headquarters Agreement provides for remedies
to check abuses against the exercise of the immunity. Thus, Section 49 states that
the "Bank shall waive the immunity accorded to any person if, in its opinion, such
immunity would impede the course of justice and the waiver would not prejudice
the purposes for which the immunities are accorded." Section 51 allows for
consultation between the government and the Bank should the government
consider that an abuse has occurred. The same section provides the mechanism for
a dispute settlement regarding, among others, issues of interpretation or
application of the agreement.

Petitioner's argument that a determination by the Department of Foreign Affairs

that he is entitled to diplomatic immunity is a political question binding on the
courts, is anchored on the ruling enunciated in the case of WHO, et al. vs.
Aquino, et al.,[6] viz:
"It is a recognized principle of international law and under our system of separation
of powers that diplomatic immunity is essentially a political question and courts
should refuse to look beyond a determination by the executive branch of the
government, and where the plea of diplomatic immunity is recognized and affirmed
by the executive branch of the government as in the case at bar, it is then the duty
of the courts to accept the claim of immunity upon appropriate suggestion by the
principal law officer of the government, the Solicitor General in this case, or other
officer acting under his direction. Hence, in adherence to the settled principle that
courts may not so exercise their jurisdiction by seizure and detention of property,
as to embarrass the executive arm of the government in conducting foreign
relations, it is accepted doctrine that in such cases the judicial department of the
government follows the action of the political branch and will not embarrass the
latter by assuming an antagonistic jurisdiction."
This ruling was reiterated in the subsequent cases of International Catholic
Migration Commission vs. Calleja;[7] The Holy See vs. Rosario, Jr;[8] Lasco
vs. UN;[9] and DFA vs. NLRC.[10]

The case of WHO vs. Aquino involved the search and seizure of personal effects of
petitioner Leonce Verstuyft, an official of the WHO. Verstyft was certified to be
entitled to diplomatic immunity pursuant to the Host Agreement executed between
the Philippines and the WHO.

ICMC vs. Calleja concerned a petition for certification election filed against ICMC
and IRRI. As international organizations, ICMC and IRRI were declared to possess
diplomatic immunity. It was held that they are not subject to local jurisdictions. It
was ruled that the exercise of jurisdiction by the Department of Labor over the case
would defeat the very purpose of immunity, which is to shield the affairs of
international organizations from political pressure or control by the host country
and to ensure the unhampered performance of their functions.

In Holy See v. Rosario, Jr. involved an action for annulment of sale of land
against the Holy See, as represented by the Papal Nuncio. The Court upheld the
petitioner's defense of sovereign immunity. It ruled that where a diplomatic envoy
is granted immunity from the civil and administrative jurisdiction of the receiving
state over any real action relating to private immovable property situated in the
territory of the receiving state, which the envoy holds on behalf of the sending state
for the purposes of the mission, with all the more reason should immunity be
recognized as regards the sovereign itself, which in that case is the Holy See.

In Lasco vs. United Nations, the United Nations Revolving Fund for Natural
Resources Exploration was sued before the NLRC for illegal dismissal. The Court
again upheld the doctrine of diplomatic immunity invoked by the Fund.

Finally, DFA v. NLRC involved an illegal dismissal case filed against the Asian
Development Bank. Pursuant to its Charter and the Headquarters Agreement, the
diplomatic immunity of the Asian Development Bank was recognized by the Court.

It bears to stress that all of these cases pertain to the diplomatic immunity
enjoyed by international organizations. Petitioner asserts that he is
entitled to the same diplomatic immunity and he cannot be prosecuted for
acts allegedly done in the exercise of his official functions.

The term "international organizations" -

"is generally used to describe an organization set up by agreement between two or
more states. Under contemporary international law, such organizations are
endowed with some degree of international legal personality such that they are
capable of exercising specific rights, duties and powers. They are organized mainly
as a means for conducting general international business in which the member
states have an interest."[11]
International public officials have been defined as:
"x x x persons who, on the basis of an international treaty constituting a particular
international community, are appointed by this international community, or by an
organ of it, and are under its control to exercise, in a continuous way, functions in
the interest of this particular international community, and who are subject to a
particular personal status."[12]
"Specialized agencies" are international organizations having functions in particular
fields, such as posts, telecommunications, railways, canals, rivers, sea transport,
civil aviation, meteorology, atomic energy, finance, trade, education and culture,
health and refugees.[13]

Issues

1. Whether petitioner Liang, as an official of an international

organization, is entitled to diplomatic immunity;

2. Whether an international official is immune from criminal jurisdiction

for all acts, whether private or official;

3. Whether the authority to determine if an act is official or private is

lodged in the courts;

4. Whether the certification by the Department of Foreign Affairs that

petitioner is covered by immunity is a political question that is binding
and conclusive on the courts.

Discussion

A perusal of the immunities provisions in various international conventions and

agreements will show that the nature and degree of immunities vary
depending on who the recipient is. Thus:

1. Charter of the United Nations

"Article 105 (1): The Organization shall enjoy in the territory of each of its Members
such privileges and immunities as are necessary for the fulfillment of its purposes.

Article 105(2): Representatives of the Members of the United Nations and officials
of the Organization shall similarly enjoy such privileges and immunities as are
necessary for the independent exercise of their functions in connection with the
Organization."

2. Convention on the Privileges and Immunities of the United Nations

"Section 2: The United Nations, its property and assets wherever located and by
whomsoever held, shall enjoy immunity from every form of legal process except
insofar as in any particular case it has expressly waived its immunity. It is,
however, understood that no waiver of immunity shall extend to any measure of
execution.

xxx

Section 11 (a): Representatives of Members to the principal and subsidiary organs

of the United Nations x x shall x x x enjoy x x x immunity from personal arrest or
detention and from seizure of their personal baggage, and, in respect of words
spoken or written and all acts done by them in their capacity as representatives,
immunity from legal process of every kind.

xxx

Section 14: Privileges and immunities are accorded to the representatives of

Members not for the personal benefit of the individuals themselves, but in order to
safeguard the independent exercise of their functions in connection with the United
Nations. Consequently, a Member not only has the right but is under a duty to
waive the immunity of its representative in any case where in the opinion of the
Member the immunity would impede the course of justice, and it can be waived
without prejudice to the purpose for which the immunity is accorded.

xxx

Section 18 (a): Officials of the United Nations shall be immune from legal process in
respect of words spoken or written and all acts performed by them in their official
capacity.

xxx

Section 19: In addition to the immunities and privileges specified in Section 18, the
Secretary-General and all Assistant Secretaries-General shall be accorded in respect
of themselves, their spouses and minor children, the privileges and immunities,
exemptions and facilities accorded to diplomatic envoys, in accordance with
international law.
Section 20: Privileges and immunities are granted to officials in the interest of the
United Nations and not for the personal benefit of the individuals themselves. The
Secretary-General shall have the right and the duty to waive the immunity of any
official in any case where, in his opinion, the immunity would impede the course of
justice and can be waived without prejudice to the interests of the United Nations.

xxx

Section 22: Experts x x x performing missions for the United Nations x x x shall be
accorded: (a) immunity from personal arrest or detention and from seizure of their
personal baggage; (b) in respect of words spoken or written and acts done by them
in the course of the performance of their mission, immunity from legal process of
every kind."

3. Vienna Convention on Diplomatic Relations

"Article 29: The person of a diplomatic agent shall be inviolable. He shall not be
liable to any form of arrest or detention. The receiving State shall treat him with
due respect and shall take all appropriate steps to prevent any attack on his
person, freedom, or dignity.

xxx

Article 31(1): A diplomatic agent shall enjoy immunity from the criminal jurisdiction
of the receiving State. He shall also enjoy immunity from its civil and administrative
jurisdiction, except in certain cases.

xxx

Article 38 (1): Except in so far as additional privileges and immunities may be

granted by the receiving State, a diplomatic agent who is a national of or
permanently a resident in that State shall enjoy only immunity from jurisdiction,
and inviolability, in respect of official acts performed in the exercise of his
functions."

4. Vienna Convention on Consular Relations

"Article 41(1): Consular officials shall not be liable to arrest or detention pending
trial, except in the case of a grave crime and pursuant to a decision by the
competent judicial authority.

xxx

Article 43(1): Consular officers and consular employees shall not be amenable to
the jurisdiction of the judicial or administrative authorities of the receiving State in
respect of acts performed in the exercise of consular functions.

Article 43(2): The provisions of paragraph 1 of this Article shall not, however, apply
in respect of a civil action either: (a) arising out of a contract concluded by a
consular officer or a consular employee in which he did not contract expressly or
impliedly as an agent of the sending State; or (b) by a third party for damage
arising from an accident in the receiving State caused by a vehicle, vessel or
aircraft."

5. Convention on the Privileges and Immunities of the Specialized

Agencies

"Section 4: The specialized agencies, their property and assets, wherever located
and by whomsoever held, shall enjoy immunity from every form of legal process
except in so far as in any particular case they have expressly waived their
immunity. It is, however, understood that no waiver of immunity shall extend to
any measure of execution.

Section 13(a): Representatives of members at meetings convened by a specialized

agency shall, while exercising their functions and during their journeys to and from
the place of meeting, enjoy immunity from personal arrest or detention and from
seizure of their personal baggage, and in respect of words spoken or written and all
acts done by them in their official capacity, immunity from legal process of every
kind.

xxx

Section 19(a): Officials of the specialized agencies shall be immune from legal
process in respect of words spoken or written and all acts performed by them in
their official capacity.

xxx

Section 21: In addition to the immunities and privileges specified in sections 19 and
20, the executive head of each specialized agency, including any official acting on
his behalf during his absence from duty, shall be accorded in respect of himself, his
spouse and minor children, the privileges and immunities, exemptions and facilities
accorded to diplomatic envoys, in accordance with international law."

6. Charter of the ADB

"Article 50(1): The Bank shall enjoy immunity from every form of legal process,
except in cases arising out of or in connection with the exercise of its powers to
borrow money, to guarantee obligations, or to buy and sell or underwrite the sale of
securities, in which cases actions may be brought against the Bank in a court of
competent jurisdiction in the territory of a country in which the Bank has its
principal or a branch office, or has appointed an agent for the purpose of accepting
service or notice of process, or has issued or guaranteed securities.

xxx
Article 55(i): All Governors, Directors, alternates, officers and employees of the
Bank, including experts performing missions for the Bank shall be immune from
legal process with respect to acts performed by them in their official capacity,
except when the Bank waives the immunity."

7. ADB Headquarters Agreement

"Section 5: The Bank shall enjoy immunity from every form of legal process, except
in cases arising out of or in connection with the exercise of its powers to borrow
money, to guarantee obligations, or to buy and sell or underwrite the sale of
securities, in which cases actions may be brought against the Bank in a court of
competent jurisdiction in the Republic of the Philippines.

xxx

Section 44: Governors, other representatives of Members, Directors, the President,

Vice-President and executive officers as may be agreed upon between the
Government and the Bank shall enjoy, during their stay in the Republic of the
Philippines in connection with their official duties with the Bank: (a) immunity from
personal arrest or detention and from seizure of their personal baggage; (b)
immunity from legal process of every kind in respect of words spoken or written
and all acts done by them in their official capacity; and (c) in respect of other
matters not covered in (a) and (b) above, such other immunities, exemptions,
privileges and facilities as are enjoyed by members of diplomatic missions of
comparable rank, subject to corresponding conditions and obligations.

Section 45(a): Officers and staff of the Bank, including for the purposes of this
Article experts and consultants performing missions for the Bank, shall enjoy x x x
immunity from legal process with respect to acts performed by them in their official
capacity, except when the Bank waives the immunity."

II

There are three major differences between diplomatic and international

immunities Firstly, one of the recognized limitations of diplomatic immunity is
that members of the diplomatic staff of a mission may be appointed from among
the nationals of the receiving State only with the express consent of that State;
apart from inviolability and immunity from jurisdiction in respect of official acts
performed in the exercise of their functions, nationals enjoy only such privileges
and immunities as may be granted by the receiving State. International immunities
may be specially important in relation to the State of which the official is a
national. Secondly, the immunity of a diplomatic agent from the jurisdiction of the
receiving State does not exempt him from the jurisdiction of the sending State; in
the case of international immunities there is no sending State and an equivalent for
the jurisdiction of the Sending State therefore has to be found either in waiver of
immunity or in some international disciplinary or judicial procedure. Thirdly, the
effective sanctions which secure respect for diplomatic immunity are the principle of
reciprocity and the danger of retaliation by the aggrieved State; international
immunities enjoy no similar protection.[14]

The generally accepted principles which are now regarded as the

foundation of international immunities are contained in the ILO
Memorandum, which reduced them in three basic propositions, namely: (1)
that international institutions should have a status which protects them against
control or interference by any one government in the performance of functions for
the effective discharge of which they are responsible to democratically constituted
international bodies in which all the nations concerned are represented; (2) that no
country should derive any financial advantage by levying fiscal charges on common
international funds; and (3) that the international organization should, as a
collectivity of States Members, be accorded the facilities for the conduct of its
official business customarily extended to each other by its individual member
States. The thinking underlying these propositions is essentially
institutional in character. It is not concerned with the status, dignity or
privileges of individuals, but with the elements of functional independence
necessary to free international institutions from national control and to
enable them to discharge their responsibilities impartially on behalf of all
their members.[15]

III

Positive international law has devised three methods of granting privileges and
immunities to the personnel of international organizations. The first is by
simple conventional stipulation, as was the case in the Hague Conventions of 1899
and 1907. The second is by internal legislation whereby the government of a state,
upon whose territory the international organization is to carry out its functions,
recognizes the international character of the organization and grants, by unilateral
measures, certain privileges and immunities to better assure the successful
functioning of the organization and its personnel. In this situation, treaty obligation
for the state in question to grant concessions is lacking. Such was the case with the
Central Commission of the Rhine at Strasbourg and the International Institute of
Agriculture at Rome. The third is a combination of the first two. In this third
method, one finds a conventional obligation to recognize a certain status of an
international organization and its personnel, but the status is described in broad
and general terms. The specific definition and application of those general terms
are determined by an accord between the organization itself and the state wherein
it is located. This is the case with the League of Nations, the Permanent Court of
Justice, and the United Nations.[16]

The Asian Development Bank and its Personnel fall under this third
category.

There is connection between diplomatic privileges and immunities and those

extended to international officials. The connection consists in the granting, by
contractual provisions, of the relatively well-established body of diplomatic
privileges and immunities to international functionaries. This connection is purely
historical. Both types of officials find the basis of their special status in the
necessity of retaining functional independence and freedom from interference by
the state of residence. However, the legal relationship between an ambassador and
the state to which he is accredited is entirely different from the relationship
between the international official and those states upon whose territory he might
carry out his functions.[17]

The privileges and immunities of diplomats and those of international

officials rest upon different legal foundations. Whereas those immunities
awarded to diplomatic agents are a right of the sending stated based on customary
international law, those granted to international officials are based on treaty or
conventional law. Customary international law places no obligation on a state to
recognize a special status of an international official or to grant him jurisdictional
immunities. Such an obligation can only result from specific treaty provisions.[18]

The special status of the diplomatic envoy is regulated by the principle of reciprocity
by which a state is free to treat the envoy of another state as its envoys are treated
by that state. The juridical basis of the diplomat's position is firmly established in
customary international law. The diplomatic envoy is appointed by the sending
State but it has to make certain that the agreement of the receiving State has been
given for the person it proposes to accredit as head of the mission to that State.[19]

The staff personnel of an international organization - the international

officials - assume a different position as regards their special status. They
are appointed or elected to their position by the organization itself, or by a
competent organ of it; they are responsible to the organization and their official
acts are imputed to it. The juridical basis of their special position is found in
conventional law,[20] since there is no established basis of usage or custom in the
case of the international official. Moreover, the relationship between an
international organization and a member-state does not admit of the principle of
reciprocity,[21] for it is contradictory to the basic principle of equality of states. An
international organization carries out functions in the interest of every member
state equally. The international official does not carry out his functions in the
interest of any state, but in serving the organization he serves, indirectly, each
state equally. He cannot be, legally, the object of the operation of the principle of
reciprocity between states under such circumstances. It is contrary to the principle
of equality of states for one state member of an international organization to assert
a capacity to extract special privileges for its nationals from other member states
on the basis of a status awarded by it to an international organization. It is upon
this principle of sovereign equality that international organizations are built.

It follows from this same legal circumstance that a state called upon to admit an
official of an international organization does not have a capacity to declare
him persona non grata.

The functions of the diplomat and those of the international official are quite
different. Those of the diplomat are functions in the national interest. The task of
the ambassador is to represent his state, and its specific interest, at the capital of
another state. The functions of the international official are carried out in the
international interest. He does not represent a state or the interest of any specific
state. He does not usually "represent" the organization in the true sense of that
term. His functions normally are administrative, although they may be judicial or
executive, but they are rarely political or functions of representation, such as those
of the diplomat.

There is a difference of degree as well as of kind. The interruption of the activities

of a diplomatic agent is likely to produce serious harm to the purposes for which his
immunities were granted. But the interruption of the activities of the international
official does not, usually, cause serious dislocation of the functions of an
international secretariat.[22]

On the other hand, they are similar in the sense that acts performed in an official
capacity by either a diplomatic envoy or an international official are not attributable
to him as an individual but are imputed to the entity he represents, the state in the
case of the diplomat, and the organization in the case of the international official.[23]

IV

Looking back over 150 years of privileges and immunities granted to the personnel
of international organizations, it is clear that they were accorded a wide scope of
protection in the exercise of their functions - the Rhine Treaty of 1804 between the
German Empire and France which provided "all the rights of neutrality" to persons
employed in regulating navigation in the international interest; The Treaty of Berlin
of 1878 which granted the European Commission of the Danube "complete
independence of territorial authorities" in the exercise of its functions; The
Covenant of the League which granted "diplomatic immunities and privileges."
Today, the age of the United Nations finds the scope of protection narrowed. The
current tendency is to reduce privileges and immunities of personnel of
international organizations to a minimum. The tendency cannot be considered
as a lowering of the standard but rather as a recognition that the problem on the
privileges and immunities of international officials is new. The solution to the
problem presented by the extension of diplomatic prerogatives to international
functionaries lies in the general reduction of the special position of both types of
agents in that the special status of each agent is granted in the interest of
function. The wide grant of diplomatic prerogatives was curtailed because
of practical necessity and because the proper functioning of the
organization did not require such extensive immunity for its officials. While
the current direction of the law seems to be to narrow the prerogatives of the
personnel of international organizations, the reverse is true with respect to the
prerogatives of the organizations themselves, considered as legal
entities. Historically, states have been more generous in granting privileges
and immunities to organizations than they have to the personnel of these
organizations.[24]

Thus, Section 2 of the General Convention on the Privileges and Immunities of the
United Nations states that the UN shall enjoy immunity from every form of legal
process except insofar as in any particular case it has expressly waived its
immunity. Section 4 of the Convention on the Privileges and Immunities of the
Specialized Agencies likewise provides that the specialized agencies shall enjoy
immunity from every form of legal process subject to the same exception. Finally,
Article 50(1) of the ADB Charter and Section 5 of the Headquarters Agreement
similarly provide that the bank shall enjoy immunity from every form of legal
process, except in cases arising out of or in connection with the exercise of its
powers to borrow money, to guarantee obligations, or to buy and sell or underwrite
the sale of securities.

The phrase "immunity from every form of legal process" as used in the UN General
Convention has been interpreted to mean absolute immunity from a state's
jurisdiction to adjudicate or enforce its law by legal process, and it is said that
states have not sought to restrict that immunity of the United Nations by
interpretation or amendment. Similar provisions are contained in the Special
Agencies Convention as well as in the ADB Charter and Headquarters Agreement.
These organizations were accorded privileges and immunities in their charters by
language similar to that applicable to the United Nations. It is clear therefore that
these organizations were intended to have similar privileges and
immunities.[25] From this, it can be easily deduced that international organizations
enjoy absolute immunity similar to the diplomatic prerogatives granted to
diplomatic envoys.

Even in the United States this theory seems to be the prevailing rule. The Foreign
Sovereign Immunities Act was passed adopting the "restrictive theory" limiting
the immunity of states under international law essentially to activities of a kind not
carried on by private persons. Then the International Organizations Immunities Act
came into effect which gives to designated international organizations the same
immunity from suit and every form of judicial process as is enjoyed by foreign
governments. This gives the impression that the Foreign Sovereign Immunities Act
has the effect of applying the restrictive theory also to international organizations
generally. However, aside from the fact that there was no indication in its
legislative history that Congress contemplated that result, and considering that the
Convention on Privileges and Immunities of the United Nations exempts the United
Nations "from every form of legal process," conflict with the United States
obligations under the Convention was sought to be avoided by interpreting the
Foreign Sovereign Immunities Act, and the restrictive theory, as not applying to
suits against the United Nations.[26]

On the other hand, international officials are governed by a different rule.

Section 18(a) of the General Convention on Privileges and Immunities of the United
Nations states that officials of the United Nations shall be immune from legal
process in respect of words spoken or written and all acts performed by them in
their official capacity. The Convention on Specialized Agencies carries exactly the
same provision. The Charter of the ADB provides under Article 55(i) that officers
and employees of the bank shall be immune from legal process with respect to acts
performed by them in their official capacity except when the Bank waives immunity.
Section 45 (a) of the ADB Headquarters Agreement accords the same immunity to
the officers and staff of the bank. There can be no dispute that international
officials are entitled to immunity only with respect to acts performed in
their official capacity, unlike international organizations which enjoy
absolute immunity.

Clearly, the most important immunity to an international official, in the discharge of

his international functions, is immunity from local jurisdiction. There is no argument
in doctrine or practice with the principle that an international official is independent
of the jurisdiction of the local authorities for his official acts. Those acts are not his,
but are imputed to the organization, and without waiver the local courts cannot
hold him liable for them. In strict law, it would seem that even the
organization itself could have no right to waive an official's immunity for
his official acts. This permits local authorities to assume jurisdiction over
and individual for an act which is not, in the wider sense of the term, his
act at all. It is the organization itself, as a juristic person, which should
waive its own immunity and appear in court, not the individual, except
insofar as he appears in the name of the organization. Provisions for
immunity from jurisdiction for official acts appear, aside from the
aforementioned treatises, in the constitution of most modern international
organizations. The acceptance of the principle is sufficiently widespread to
be regarded as declaratory of international law.[27]

What then is the status of the international official with respect to his
private acts?

Section 18 (a) of the General Convention has been interpreted to mean that
officials of the specified categories are denied immunity from local jurisdiction
for acts of their private life and empowers local courts to assume jurisdiction in
such cases without the necessity of waiver.[28] It has earlier been mentioned that
historically, international officials were granted diplomatic privileges and immunities
and were thus considered immune for both private and official acts. In practice, this
wide grant of diplomatic prerogatives was curtailed because of practical necessity
and because the proper functioning of the organization did not require such
extensive immunity for its officials. Thus, the current status of the law does
not maintain that states grant jurisdictional immunity to international
officials for acts of their private lives.[29] This much is explicit from the
Charter and Headquarters Agreement of the ADB which contain
substantially similar provisions to that of the General Convention.

VI

Who is competent to determine whether a given act is private or official?

This is an entirely different question. In connection with this question, the

current tendency to narrow the scope of privileges and immunities of
international officials and representatives is most apparent. Prior to the regime of
the United Nations, the determination of this question rested with the organization
and its decision was final. By the new formula, the state itself tends to assume this
competence. If the organization is dissatisfied with the decision, under the
provisions of the General Convention of the United States, or the Special
Convention for Specialized Agencies, the Swiss Arrangement, and other current
dominant instruments, it may appeal to an international tribunal by procedures
outlined in those instruments. Thus, the state assumes this competence in the first
instance. It means that, if a local court assumes jurisdiction over an act without the
necessity of waiver from the organization, the determination of the nature of the
act is made at the national level.[30]

It appears that the inclination is to place the competence to determine the

nature of an act as private or official in the courts of the state
concerned. That the prevalent notion seems to be to leave to the local courts
determination of whether or not a given act is official or private does not
necessarily mean that such determination is final. If the United Nations questions
the decision of the Court, it may invoke proceedings for settlement of disputes
between the organization and the member states as provided in Section 30 of the
General Convention. Thus, the decision as to whether a given act is official or
private is made by the national courts in the first instance, but it may be subjected
to review in the international level if questioned by the United Nations.[31]

A similar view is taken by Kunz, who writes that the "jurisdiction of local courts
without waiver for acts of private life empowers the local courts to determine
whether a certain act is an official act or an act of private life," on the rationale that
since the determination of such question, if left in the hands of the organization,
would consist in the execution, or non-execution, of waiver, and since waiver is not
mentioned in connection with the provision granting immunities to international
officials, then the decision must rest with local courts.[32]

Under the Third Restatement of the Law, it is suggested that since an international
official does not enjoy personal inviolability from arrest or detention and has
immunity only with respect to official acts, he is subject to judicial or administrative
process and must claim his immunity in the proceedings by showing that the act in
question was an official act. Whether an act was performed in the individual's
official capacity is a question for the court in which a proceeding is brought, but if
the international organization disputes the court's finding, the dispute between the
organization and the state of the forum is to be resolved by negotiation, by an
agreed mode of settlement or by advisory opinion of the International Court of
Justice.[33]

Recognizing the difficulty that by reason of the right of a national court to assume
jurisdiction over private acts without a waiver of immunity, the determination of the
official or private character of a particular act may pass from international to
national control, Jenks proposes three ways of avoiding difficulty in the matter. The
first would be for a municipal court before which a question of the official or private
character of a particular act arose to accept as conclusive in the matter any claim
by the international organization that the act was official in character, such a claim
being regarded as equivalent to a governmental claim that a particular act is an act
of State. Such a claim would be in effect a claim by the organization that the
proceedings against the official were a violation of the jurisdictional immunity of the
organization itself which is unqualified and therefore not subject to delimitation in
the discretion of the municipal court. The second would be for a court to accept as
conclusive in the matter a statement by the executive government of the country
where the matter arises certifying the official character of the act. The third would
be to have recourse to the procedure of international arbitration. Jenks opines that
it is possible that none of these three solutions would be applicable in all cases; the
first might be readily acceptable only in the clearest cases and the second is
available only if the executive government of the country where the matter arises
concurs in the view of the international organization concerning the official
character of the act. However, he surmises that taken in combination, these various
possibilities may afford the elements of a solution to the problem.[34]

One final point. The international official's immunity for official acts may be likened
to a consular official's immunity from arrest, detention, and criminal or civil process
which is not absolute but applies only to acts or omissions in the performance of his
official functions, in the absence of special agreement. Since a consular officer is
not immune from all legal process, he must respond to any process and plead and
prove immunity on the ground that the act or omission underlying the process was
in the performance of his official functions. The issue has not been authoritatively
determined, but apparently the burden is on the consular officer to prove his status
as well as his exemption in the circumstances. In the United States, the US
Department of State generally has left it to the courts to determine whether a
particular act was within a consular officer's official duties.[35]

Submissions

On the bases of the foregoing disquisitions, I submit the following conclusions:

First, petitioner Liang, a bank official of ADB, is not entitled to diplomatic immunity
and hence his immunity is not absolute.

Under the Vienna Convention on Diplomatic Relations, a diplomatic envoy is

immune from criminal jurisdiction of the receiving State for all acts, whether private
or official, and hence he cannot be arrested, prosecuted and punished for any
offense he may commit, unless his diplomatic immunity is waived.[36] On the other
hand, officials of international organizations enjoy "functional" immunities,
that is, only those necessary for the exercise of the functions of the
organization and the fulfillment of its purposes.[37] This is the reason why
the ADB Charter and Headquarters Agreement explicitly grant immunity from
legal process to bank officers and employees only with respect to acts performed
by them in their official capacity, except when the Bank waives immunity. In other
words, officials and employees of the ADB are subject to the jurisdiction of
the local courts for their private acts, notwithstanding the absence of a
waiver of immunity.
Petitioner cannot also seek relief under the mantle of "immunity from
every form of legal process" accorded to ADB as an international
organization. The immunity of ADB is absolute whereas the immunity of its
officials and employees is restricted only to official acts. This is in
consonance with the current trend in international law which seeks to narrow the
scope of protection and reduce the privileges and immunities granted to personnel
of international organizations, while at the same time aims to increase the
prerogatives of international organizations.

Second, considering that bank officials and employees are covered by immunity
only for their official acts, the necessary inference is that the authority of the
Department of Affairs, or even of the ADB for that matter, to certify that
they are entitled to immunity is limited only to acts done in their official
capacity. Stated otherwise, it is not within the power of the DFA, as the agency in
charge of the executive department's foreign relations, nor the ADB, as the
international organization vested with the right to waive immunity, to invoke
immunity for private acts of bank official and employees, since no such prerogative
exists in the first place. If the immunity does not exist, there is nothing to certify.

As an aside, ADB cannot even claim to have the right to waive immunity for private
acts of its officials and employees. The Charter and the Headquarters Agreement
are clear that the immunity can be waived only with respect to official acts because
this is only the extent to which the privilege has been granted. One cannot waive
the right to a privilege which has never been granted or acquired.

Third, I choose to adopt the view that it is the local courts which have jurisdiction
to determine whether or not a given act is official or private. While there is a dearth
of cases on the matter under Philippine jurisprudence, the issue is not entirely
novel.

The case of M.H. Wylie, et al. vs. Rarang, et al.[38] concerns the extent of
immunity from suit of the officials of a United States Naval Base inside the
Philippine territory. Although a motion to dismiss was filed by the defendants
therein invoking their immunity from suit pursuant to the RP-US Military Bases
Agreement, the trial court denied the same and, after trial, rendered a decision
declaring that the defendants are not entitled to immunity because the latter acted
beyond the scope of their official duties. The Court likewise applied the ruling
enunciated in the case of Chavez vs. Sandiganbayan[39] to the effect that a mere
invocation of the immunity clause does not ipso facto result in the charges being
automatically dropped. While it is true that the Chavez case involved a public
official, the Court did not find any substantial reason why the same rule cannot be
made to apply to a US official assigned at the US Naval Station located in the
Philippines. In this case, it was the local courts which ascertained whether the acts
complained of were done in an official or personal capacity.

In the case of The Holy See vs. Rosario, Jr.,[40] a complaint for annulment of
contract of sale, reconveyance, specific performance and damages was filed against
petitioner. Petitioner moved to dismiss on the ground of, among others, lack of
jurisdiction based on sovereign immunity from suit, which was denied by the trial
court. A motion for reconsideration, and subsequently, a "Motion for a Hearing for
the Sole Purpose of Establishing Factual Allegation for Claim of Immunity as a
Jurisdictional Defense" were filed by petitioner. The trial court deferred resolution of
said motions until after trial on the merits. On certiorari, the Court there ruled on
the issue of petitioner's non-suability on the basis of the allegations made in the
pleadings filed by the parties. This is an implicit recognition of the court's
jurisdiction to ascertain the suability or non-suability of the sovereign by assessing
the facts of the case. The Court hastened to add that when a state or international
agency wishes to plead sovereign or diplomatic immunity in a foreign court, in
some cases, the defense of sovereign immunity was submitted directly to the local
courts by the respondents through their private counsels, or where the foreign
states bypass the Foreign Office, the courts can inquire into the facts and make
their own determination as to the nature of the acts and transactions involved.

Finally, it appears from the records of this case that petitioner is a senior economist
at ADB and as such he makes country project profiles which will help the bank in
deciding whether to lend money or support a particular project to a particular
country.[41] Petitioner stands charged of grave slander for allegedly uttering
defamatory remarks against his secretary, the private complainant herein.
Considering that the immunity accorded to petitioner is limited only to acts
performed in his official capacity, it becomes necessary to make a factual
determination of whether or not the defamatory utterances were made pursuant
and in relation to his official functions as a senior economist.

I vote to deny the motion for reconsideration.

[ G.R. No. 125865, January 28, 2000 ]

JEFFREY LIANG (HUEFENG), PETITIONER, VS. PEOPLE OF
THE PHILIPPINES, RESPONDENT.

DECISION

YNARES-SANTIAGO, J.:

Petitioner is an economist working with the Asian Development Bank (ADB).

Sometime in 1994, for allegedly uttering defamatory words against fellow ADB
worker Joyce Cabal, he was charged before the Metropolitan Trial Court (MeTC) of
Mandaluyong City with two counts of grave oral defamation docketed as Criminal
Cases Nos. 53170 and 53171. Petitioner was arrested by virtue of a warrant issued
by the MeTC. After fixing petitioner’s bail at P2,400.00 per criminal charge, the
MeTC released him to the custody of the Security Officer of ADB. The next day, the
MeTC judge received an "office of protocol" from the Department of Foreign Affairs
(DFA) stating that petitioner is covered by immunity from legal process under
Section 45 of the Agreement between the ADB and the Philippine Government
regarding the Headquarters of the ADB (hereinafter Agreement) in the country.
Based on the said protocol communication that petitioner is immune from suit, the
MeTC judge without notice to the prosecution dismissed the two criminal cases. The
latter filed a motion for reconsideration which was opposed by the DFA. When its
motion was denied, the prosecution filed a petition for certiorari and mandamus
with the Regional Trial Court (RTC) of Pasig City which set aside the MeTC rulings
and ordered the latter court to enforce the warrant of arrest it earlier issued. After
the motion for reconsideration was denied, petitioner elevated the case to this
Court via a petition for review arguing that he is covered by immunity under the
Agreement and that no preliminary investigation was held before the criminal cases
were filed in court.

The petition is not impressed with merit.

First, courts cannot blindly adhere and take on its face the communication from the
DFA that petitioner is covered by any immunity. The DFA’s determination that a
certain person is covered by immunity is only preliminary which has no binding
effect in courts. In receiving ex-parte the DFA’s advice and in motu
proprio dismissing the two criminal cases without notice to the prosecution, the
latter’s right to due process was violated. It should be noted that due process is a
right of the accused as much as it is of the prosecution. The needed inquiry in what
capacity petitioner was acting at the time of the alleged utterances requires for its
resolution evidentiary basis that has yet to be presented at the proper time.[1] At
any rate, it has been ruled that the mere invocation of the immunity clause does
not ipso facto result in the dropping of the charges.[2]

Second, under Section 45 of the Agreement which provides:

"Officers and staff of the Bank including for the purpose of this Article experts and
consultants performing missions for the Bank shall enjoy the following privileges
and immunities:
a.) immunity from legal process with respect to acts performed by them in their official capacity
except when the Bank waives the immunity."

the immunity mentioned therein is not absolute, but subject to the exception that
the act was done in "official capacity." It is therefore necessary to determine if
petitioner’s case falls within the ambit of Section 45(a). Thus, the prosecution
should have been given the chance to rebut the DFA protocol and it must be
accorded the opportunity to present its controverting evidence, should it so desire.

Third, slandering a person could not possibly be covered by the immunity

agreement because our laws do not allow the commission of a crime, such as
defamation, in the name of official duty.[3] The imputation of theft is ultra vires and
cannot be part of official functions. It is well-settled principle of law that a public
official may be liable in his personal private capacity for whatever damage he may
have caused by his act done with malice or in bad faith or beyond the scope of his
authority or jurisdiction.[4] It appears that even the government’s chief legal
counsel, the Solicitor General, does not support the stand taken by petitioner and
that of the DFA.

Fourth, under the Vienna Convention on Diplomatic Relations, a diplomatic agent,

assuming petitioner is such, enjoys immunity from criminal jurisdiction of the
receiving state except in the case of an action relating to any professional or
commercial activity exercised by the diplomatic agent in the receiving state outside
his official functions.[5] As already mentioned above, the commission of a crime is
not part of official duty.

Finally, on the contention that there was no preliminary investigation conducted,

suffice it to say that preliminary investigation is not a matter of right in cases
cognizable by the MeTC such as the one at bar.[6] Being purely a statutory right,
preliminary investigation may be invoked only when specifically granted by
law.[7] The rule on criminal procedure is clear that no preliminary investigation is
required in cases falling within the jurisdiction of the MeTC.[8] Besides, the absence
of preliminary investigation does not affect the court’s jurisdiction nor does it impair
the validity of the information or otherwise render it defective.[9]

WHEREFORE, the petition is DENIED.

SO ORDERED.

[ G.R. No. 5272, March 19, 1910 ]

THE UNITED STATES, PLAINTIFF AND
APPELLEE, VS. AH CHONG, DEFENDANT AND APPELLANT.

DECISION

CARSON, J.:

The evidence as to many of the essential and vital facts in this case is limited to the
testimony of the accused himself, because from the very nature of these facts and
from the circumstances surrounding the incident upon which these proceedings
rest, no other evidence as to these facts was available either to the prosecution or
to the defense. We think, however, that, giving the accused the benefit of the
doubt as to the weight of the evidence touching those details of the incident as to
which there can be said to be any doubt, the following statement of the material
facts disclosed by the record may be taken to be substantially correct:

The defendant, Ah Chong, was employed as a cook at "Officers' quarters, No.

27," Fort McKinley, Rizal Province, and at the same place Pascual
Gualberto, deceased, was employed as a house boy or muchacho. "Officers'
quarters No. 27" is a detached house situated some 40 meters from the nearest
building, and in August, 1908, was occupied solely as an officers' mess or
club. No one slept in the house except the two servants, who jointly occupied a
small room toward the rear of the building, the door of which opened upon a
narrow porch running along the side of the building, by which communication was
had with the other part of the house. This porch was covered by a heavy growth
of vines for its entire length and height. The door of the room was not furnished
with a permanent bolt or lock, and the occupants, as a measure of security, had
attached a small hook or catch on the inside of the door, and were in the habit of
reinforcing this somewhat insecure means of fastening the door by placing against
it a chair. In the room there was but one small window, which, like the door,
opened on the porch. Aside from the door and window, there were no other
openings of any kind in the room.

On the night of August 14, 1908, at about 10 o'clock, the defendant, who
had retired for the night, was suddenly awakened by someone trying to force
open the door of the room. He sat up in bed and called out twice, "Who is
there?" He heard no answer and was convinced by the noise at the door that it
was being pushed open by someone bent upon forcing his way into the room. Due
to the heavy growth of vines along the front of the porch, the room was
very dark, and the defendant, fearing that the intruder was a robber or a thief,
leaped to his feet and called out. "If you enter the room, I will kill you." At that
moment he was struck just above the knee by the edge of the chair which had
been placed against the door. In the darkness and confusion the defendant
thought that the blow had been inflicted by the person who had forced the door
open, whom he supposed to be a burglar, though in the light of after events, it is
probable that the chair was merely thrown back into the room by the sudden
opening of the door against which it rested. Seizing a common kitchen knife which
he kept under his pillow, the defendant struck out wildly at the intruder who,
it afterwards turned out, was his roommate, Pascual. Pascual ran" out upon the
porch and fell down on the steps in a desperately wounded condition, followed by
the defendant, who immediately recognized him in the moonlight. Seeing that
Pascual was wounded, he called to his employers who slept in the next house, No.
28, and ran back to his room to secure bandages to bind up Pascual's wounds.

There had been several robberies in Fort McKinley not long prior to the date of
the incident just described, one of which took place in a house in which the
defendant was employed as cook; and as defendant alleges, it was because of
these repeated robberies he kept a knife under his pillow for his personal
protection.
The deceased and the accused, who roomed together and who appear to
have been on friendly and amicable terms prior to the fatal incident, had an
understanding that when either returned at night, he should knock at the door
and acquaint his companion with his identity. Pascual had left the house
early in the evening and gone for a walk with his friends, Celestino Quiambao and
Mariano Ibanez, servants employed at officers' quarters No. 28, the nearest
house to the mess hall. The three returned from their walk at about 10 o'clock, and
Celestino and Mariano stopped at their room at No. 28, Pascual going on to his
room at No. 27. A few moments after the party separated, Celestino and Mariano
heard cries for assistance and upon returning to No. 27 found Pascual sitting on
the back steps fatally wounded in the stomach, whereupon one of them ran back
to No. 28 and called Lieutenants Jacobs and Healy, who immediately went to the
aid of the wounded man.

The defendant then and there admitted that he had stabbed his
roommate, but said that he did it under the impression that Pascual was
"a ladron" because he forced open the door of their sleeping room, despite
defendant's warnings.

No reasonable explanation of the remarkable conduct on the part of

Pascual suggests itself, unless it be that the boy in a spirit of mischief was
playing a trick on his Chinese roommate, and sought to frighten him by forcing his
way into the room, refusing to give his name or say who he was, in order to
make Ah Chong believe that he was being attacked by a robber.

Defendant was placed under arrest forthwith, and Pascual was conveyed to
the military hospital, where he died from the effects of the wound on the
following day.

The defendant was charged with the crime of assassination, tried, and found guilty
by the trial court of simple homicide, with extenuating circumstances, and
sentenced to six years and one day presidio mayor, the minimum penalty
prescribed by law.

At the trial in the court below the defendant admitted that he killed his
roommate, Pascual Gualberto, but insisted that he struck the fatal blow
without any intent to do a wrongful act, in the exercise of his lawful right of self-
defense.

Article 8 of the Penal Code provides that -

"The following are not delinquent and are therefore exempt from criminal
liability:

"4. He who acts in defense of his person or rights, provided there are the following
attendant circumstances:

"(1) Illegal aggression.

"(2) Reasonable necessity of the means employed to prevent or repel it.

"(3) Lack of sufficient provocation on the part of the person defending himself."
Under these provisions we think that there can be no doubt that defendant would
be entitled to complete exemption from criminal liability for the death of the victim
of his fatal blow, if the intruder who forced open the door of his room had been
in fact a dangerous thief or "ladron," as the defendant believed him to be. No
one, under such circumstances, would doubt the right of the defendant to resist
and repel such an intrusion, and the thief having forced open the door
notwithstanding defendant's thrice-repeated warning to desist, and his threat that
he would kill the intruder if he persisted in his attempt, it will not be questioned
that in the darkness of the night, in a small room, with no means of escape, with
the thief advancing upon him despite his warnings, defendant would have been
wholly justified in using any available weapon to defend himself from such an
assault, and in striking promptly, without waiting for the thief to discover his
whereabouts and deliver the first blow.

But the evidence clearly discloses that the intruder was not a thief or a
"ladron." That neither the defendant nor his property nor any of the property under
his charge was in real danger at the time when he struck the fatal blow. That there
was no such "unlawful aggression" on the part of a thief or "ladron" as defendant
believed he was repelling and resisting, and that there was no real "necessity" for
the use of the knife to defend his person or his property or the property under his
charge.

The question then squarely presents itself, whether in this jurisdiction one can be
held criminally responsible who, by reason of a mistake as to the facts, does
an act for which he would be exempt from criminal liability if the facts were as he
supposed them to be, but which would constitute the crime of homicide or
assassination if the actor had known the true state of the facts at the time when he
committed the act. To this question we think there can be but one answer, and we
hold that under such circumstances there is no criminal liability, provided always
that the alleged ignorance or mistake of fact was not due to negligence or bad faith.

In broader terms, ignorance or mistake of fact, if such ignorance or mistake of fact

is sufficient to negative a particular intent which under the law is a necessary
ingredient of the offense charged (e. g., in larceny, animus furendi; in murder,
malice; in crimes and misdemeanors generally some degree of criminal
intent) "cancels the presumption of intent," and works an acquittal; except in
those cases where the circumstances demand a conviction under the penal
provisions touching criminal negligence; and in cases where, under the provisions
of article 1 of the Penal Code one voluntarily committing a crime or misdemeanor
incurs criminal liability for any wrongful act committed by him, even though it be
different from that which he intended to commit. (Wharton's Criminal Law, sec.
87 and cases cited; McClain's Crim. Law, sec. 133 and cases cited;
Pettit vs. S., 28 Tex. Ap., 240; Commonwealth vs. Power, 7 Met., 596;
Yates vs. People, 32 N. Y., 509; Isham vs. State, 38 Ala., 213;
Commonwealth vs. Rogers, 7 Met., 500.)

The general proposition thus stated hardly admits of discussion, and the only
question worthy of consideration is whether malice or criminal intent is an essential
element or ingredient of the crimes of homicide and assassination as defined
and penalized in the Penal Code. It has been said that since the definitions
there given of these as well as most other crimes and offenses therein defined,
do not specifically and expressly declare that the acts constituting the crime or
offense must be committed with malice or with criminal intent in order that the
actor may be held criminally liable, the commission of the acts set out in the
various definitions subjects the actor to the penalties described therein, unless it
appears that he is exempted from liability under one or other of the express
provisions of article 8 of the code, which treats of exemptions. But while it is true
that contrary to the general rule of legislative enactment in the United States, the
definitions of crimes and offenses as set out in the Penal Code rarely contain
provisions expressly declaring that malice or criminal intent is an
essential ingredient of the crime, nevertheless, the general provisions of article 1
of the code clearly indicate that malice, or criminal intent in some form, is an
essential requisite of all crimes and offenses therein defined, in the absence of
express provisions modifying the general rule, such as are those touching liability
resulting from acts negligently or imprudently committed, and acts done by one
voluntarily committing a crime or misdemeanor, where the act
committed is different from that which he intended to commit. And it is to
be observed that even these exceptions are more apparent than real, for "There is
little distinction, except in degree, between a will to do a wrongful thing and
indifference whether it is done or not. Therefore carelessness is criminal, and within
limits supplies the place of the affirmative criminal intent" (Bishop's New Criminal
Law, vol. 1, s. 313) ; and, again, "There is so little difference between a
disposition to do a great harm and a disposition to do harm that one of them may
very well be looked upon as the measure of the other. Since, therefore, the guilt of
a crime consists in the disposition to do harm, which the criminal shows by
committing it, and since this disposition is greater or less in proportion to the harm
which is done by the crime, the consequence is that the guilt of the crime follows
the same proportion; it is greater or less according as the crime in its own nature
does greater or less harm" (Ruth. Ints. C. 18, p. 11); or, as it has been otherwise
stated, the thing done, having proceeded from a corrupt mind, is to be viewed the
same whether the corruption was of one particular form or another.

Article 1 of the Penal Code is as follows:

"Crimes or misdemeanors are voluntary acts and omissions punished by law.

"Acts and omissions punished by law are always presumed to be voluntary unless
the contrary shall appear.

"Any person voluntarily committing a crime or misdemeanor shall incur

criminal liability, even though the wrongful act committed be different from that
which he had intended to commit."
The celebrated Spanish jurist Pacheco, discussing the meaning of the word
"voluntary" as used in this article, says that a voluntary act is a free, intelligent,
and intentional act, and roundly asserts that without intention (intention to do
wrong or criminal intention) there can be no crime; and that the word "voluntary"
implies and includes the words "con malicia," which were expressly set out in the
definition of the word "crime" in the code of 1822, but omitted from the code of
1870, because, as Pacheco insists, their use in the former code was redundant,
being implied and included in the word "voluntary." (Pacheco, Codigo Penal, vol. 1,
p. 74.)

Viada, while insisting that the absence of intention to commit the crime can only be
said to exempt from criminal responsibility when the act which was actually
intended to be done was in itself a lawful one, and in the absence of negligence or
imprudence, nevertheless admits and recognizes in his discussion
of the provisions of this article of the code that in general without intention
there can be no crime. (Viada, vol. 1, p. 16.) And, as we have shown above,
the exceptions insisted upon by Viada are more apparent than real.

Silvela, in discussing the doctrine herein laid down, says:

"In fact, it is sufficient to remember the first article, which declares that where
there is no intention there is no crime * * * in order to affirm, without fear of
mistake, that under our code there can be no crime if there is no act, an act which
must fall within the sphere of ethics if there is no moral injury." (Vol. 2, The
Criminal Law, folio 169.)
And to the same effect are various decisions of the supreme court of Spain, as, for
example in its sentence of May 31, 1882, in which it made use of the
following language:
"It is necessary that this act, in order to constitute a crime, involve all
the malice which is supposed from the operation of
the will and an intent to cause the injury which may be the object of the
crime."
And again in its sentence of March 16, 1892, wherein it held that "considering
that, whatever may be the civil effects of the inscription of his three sons, made
by the appellant in the civil registry and in the parochial church, there can be no
crime because of the lack of the necessary element or criminal intention, which
characterizes every action or omission punished by law; nor is he guilty of
criminal negligence."

And to the same effect in its sentence of December 30, 1896, it made use of the
following language:
" * * * Considering that the moral element of the crime, that is, intent or malice
or their absence in the commission of an act denned and punished by law as
criminal, is not a necessary question of fact submitted to the exclusive judgment
and decision of the trial court."
That the author of the Penal Code deemed criminal intent or malice to
be an essential element of the various crimes and misdemeanors therein defined
becomes clear also from an examination of the provisions of article 568, which are
as follows:
"He who shall execute through reckless negligence an act that, if done with malice,
would constitute a grave crime, shall be punished with the penalty of arresto
mayor in its maximum degree, to prision correccional in its minimum degree, and
with arresto mayor in its minimum and medium degrees if it shall constitute a less
grave crime.

"He who in violation of the regulations shall commit a crime through simple
imprudence or negligence shall incur the penalty of arresto mayor in its medium
and maximum degrees.

"In the application of these penalties the courts shall proceed according to their
discretion, without being subject to the rules prescribed in article 81.

"The provisions of this article shall not be applicable if the penalty prescribed for
the crime is equal to or less than those contained in the first paragraph thereof, in
which case the courts shall apply the next one thereto in the degree which they
may consider proper."
The word "malice" in this article is manifestly substantially equivalent to the
words "criminal intent," and the direct inference from its provisions is that the
commission of the acts contemplated therein, in the absence of malice (criminal
intent), negligence, and imprudence, does not impose any criminal liability on the
actor.

The word "voluntary" as used in article 1 of the Penal Code would seem
to approximate in meaning the word "willful" as used in English and American
statutes to designate a form of criminal intent. It has been said that while the
word "willful" sometimes means little more than intentionally or designedly, yet it
is more frequently understood to extend a little further and approximate the idea
of the milder kind of legal malice; that is, it signifies an evil intent without
justifiable excuse. In one case it was said to mean,, as employed in a statute in
contemplation, "wantonly" or "causelessly;" in another, "without reasonable
grounds to believe the thing lawful." And Shaw, C. J., once said that
ordinarily in a statute it means "not merely 'voluntarily' but with a bad purpose;
in other words, corruptly." In English and the American statutes defining crimes
"malice," "malicious," "maliciously," and "malice aforethought" are words
indicating intent, more purely technical than "willful" or "willfully," but "the
difference between them is not great;" the word "malice" not often
being understood to require general malevolence toward a particular individual,
and signifying rather the intent from which flows any unlawful and injurious act
committed without legal justification. (Bishop's New Criminal Law, vol. 1, sees.
428 and 429, and cases cited.)

But even in the absence of express words in a statute, setting out a condition in
the definition of a crime that it be committed "voluntarily," "willfully,"
"maliciously," "with malice aforethought," or in one of the various modes
generally construed to imply a criminal intent, we think that reasoning from
general principles it will always be found that, with the rare exceptions
hereinafter mentioned, to constitute a crime evil intent must combine with an act.
Mr. Bishop, who supports his position with numerous citations from the decided
cases, thus forcefully presents this doctrine:
"In no one thing does criminal jurisprudence differ more from civil than in the rule
as to the intent. In controversies between private parties the quo animo with
which a thing was done is sometimes important, not always; but crime proceeds
only from a criminal mind. So that -

"There can be no crime, large or small, without an evil mind. In other

words, punishment is the sequence of wickedness, without which it can not
be. And neither in philosophical speculation nor in religious or moral sentiment
would any people in any age allow that a man should be deemed guilty unless his
mind was so. It is therefore a principle of our legal system, as probably it
is of every other, that the essence of an offense is the wrongful intent, without
which it can not exist. We find this doctrine confirmed by -

"Legal maxims. - The ancient wisdom of the law, equally with the modern, is
distinct on this subject. It consequently has supplied to us such maxims as Actus
non facit reum nisi mens sit rea, 'the act itself does not make a man guilty unless
his intention were so;' Actus me invito factus non est meus actus, 'an act done by
me against my will is not my act;' and others of the like sort. In this, as just said,
criminal jurisprudence differs from civil. So also -

"Moral science and moral sentiment teach the same thing. 'By reference to the
intention, we inculpate or exculpate others or ourselves without any respect to
the happiness or misery actually produced. Let the result of an action be what it
may, we hold a man guilty simply on the ground of intention; or, on the same
ground, we hold him innocent.' The calm judgment of mankind keeps this doctrine
among its jewels. In times of excitement, when vengeance takes the place of
justice, every guard around the innocent is cast down. But with the return of
reason comes the public voice that where the mind is pure, he who differs in act
from his neighbors does not offend. And -

"In the spontaneous judgment which springs from the nature given by God
to man, no one deems another to deserve punishment for what he did from an
upright mind, destitute of every form of evil. And whenever a person is made to
suffer a punishment which the community deems hot his due, so far from its
placing an evil mark upon him, it elevates him to the seat of the
martyr. Even infancy itself spontaneously pleads the want of bad intent in
justification of what has the appearance of wrong, with the utmost confidence
that the plea, if its truth is credited, will be accepted as good. Now these facts are
only the voice of nature uttering one of her immutable truths. It is, then, the
doctrine of the law, superior to all other doctrines, because first in nature from
which the law itself proceeds, that no man is to be punished as a criminal unless his
intent is wrong." (Bishop's New Criminal Law, vol. 1, sees. 286 to 290.)
Compelled by necessity, "the great master of all things," an apparent departure
from this doctrine of abstract justice results from the adoption of the arbitrary rule
that Ignorantia juris non excusat ("Ignorance of the law excuses no man"), without
which justice could not be administered in our tribunals; and compelled also by the
same doctrine of necessity, the courts have recognized the power of the
legislature to forbid, in a limited class of cases, the doing of certain acts, and to
make their commission criminal without regard to the intent of the doer. Without
discussing these exceptional cases at length, it is sufficient here to say that
the courts have always held that unless the intention of the lawmaker to make
the commission of certain acts criminal without regard to the intent of the doer is
clear and beyond question the statute will not be so construed (cases cited in
Cyc, vol. 12, p. 158, notes 76 and 77) ; and the rule that ignorance of the law
excuses no man has been said not to be a real departure from the law's
fundamental principle that crime exists only where the mind is at fault, because
"the evil purpose need not be to break the law, and it suffices if it is simply to
do the thing which the law in fact forbids." (Bishop's New Criminal Law, sec.
300, and cases cited.)

But, however this may be, there is no technical rule, and no pressing necessity
therefor, requiring mistake in fact to be dealt with otherwise than in strict accord
with the principles of abstract justice. On the contrary, the maxim here
is Ignorantia facti excusat ("Ignorance or mistake in point of fact is, in all cases of
supposed offense, a sufficient excuse"). (Brown's Leg. Max., 2d ed., 190.)

Since evil intent is in general an inseparable element in every crime, any such
mistake of fact as shows the act committed to have proceeded from no sort of
evil in the mind necessarily relieves the actor from criminal liability,
provided always there is no fault or negligence on his part; and as laid down by
Baron Parke, "The guilt of the accused must depend on the circumstances as
they appear to him." (Reg. vs. Thurborn, 1 Den. C. C, 387; P. vs. Anderson, 44
Cal., 65; P. vs. Lamb, 54 Barb., 342; Yates vs. P., 32 N. Y., 509; Patterson vs. P.,
46 Barb., 625;. Reg. vs. Cohen, 8 Cox C. C, 41; P. vs. Miles, 55 Cal., 207, 209;
Nalley vs. S., 28 Tex. Ap., 387.) That is to say, the question as to whether
he honestly, in good faith, and without fault or negligence fell into the mistake is
to be determined by the circumstances as they appeared to him at the time when
the mistake was made, and the effect which the surrounding circumstances
might reasonably be expected to have on his mind, in forming the intent, criminal
or otherwise, upon which he acted.
"If, in language not uncommon in the cases, one has reasonable cause to
believe the existence of facts which will justify a killing - or, in terms more, nicely
in accord with the principles on which the rule is founded, if without fault or
carelessness he does believe them - he is legally guiltless of the homicide;
though he mistook the facts, and so the life of an innocent person is
unfortunately extinguished. In other words, and with reference to the right of
self-defense and the not quite harmonious authorities, it is the doctrine of reason,
and sufficiently sustained in adjudication, that notwithstanding some decisions
apparently adverse, whenever a man undertakes self-defense, he is justified in
acting on the facts as they appear to him. If, without fault or carelessness, he is
misled concerning them, and defends himself correctly according to what he thus
supposes the facts to be, the law will not punish him though they are in truth
otherwise, and he has really no occasion for the extreme measure." (Bishop's
New Criminal Law, sec. 305, and large array of cases there cited.)
The common illustration in the American and English textbooks of the application
of this rule is the case where a man, masked and disguised as a footpad, at night
and on a lonely road, "holds up" his friend in a spirit of mischief, and with leveled
pistol demands his money or his life, but is killed by his friend under the mistaken
belief that the attack is a real one, that the pistol leveled at his head is loaded, and
that his life and property are in imminent danger at the hands of the aggressor. No
one will doubt that if the facts were such as the slayer believed them to be he
would be innocent of the commission of any crime and wholly exempt from criminal
liability, although if he knew the real state of the facts when he took the life of his
friend he would undoubtedly be guilty of the crime of homicide or
assassination. Under such circumstances, proof of his innocent mistake of the facts
overcomes the presumption of malice or criminal intent, and
(since malice or criminal intent is a necessary ingredient of the "act punished by
law" in cases of homicide or assassination) overcomes at the same time
the presumption established in article 1 of the code, that the "act punished by
law" was committed "voluntarily."

Parsons, C. J., in the Massachusetts court, once said: "If the party killing had
reasonable grounds for believing that the person slain had a felonious design
against him, and under that supposition killed him, although it should
afterwards appear that there was no such design, it will not be murder, but it
will be either manslaughter or excusable homicide, according to the degree of
caution used and the probable grounds of such belief." (Charge to the grand jury
in Self ridge's case, Whart. Horn., 417, 418, Lloyd's report of the case, p. 7.)

In this case, Parker, J., charging the petit jury, enforced the doctrine as follows:
"A, in the peaceable pursuit of his affairs, sees B rushing rapidly toward him, with
an outstretched arm and a pistol in his hand, and using violent menaces against
his life as he advances. Having approached near enough in the same attitude, A,
who has a club in his hand, strikes B over the head before or at the instant the
pistol is discharge; and of the wound B dies. It turns out the pistol was
loaded with powder only, and that the real design of B was only to terrify A. Will
any reasonable man say that A is more criminal than he would have been if there
had been a bullet in the pistol? Those who hold such doctrine must require that a
man so attacked must, before he strikes the assailant, stop and ascertain how the
pistol is loaded - a doctrine which would entirely take away the essential right of
self- defense. And when it is considered that the jury who try the cause, and not
the party killing,.are to judge of the reasonable grounds of his apprehension, no
danger can be supposed to flow from this principle." (Lloyd's Rep., p. 160.)
To the same effect are various decisions of the supreme court of Spain, cited by
Viada, a few of which are here set out in full because the facts are somewhat
analogous to those in the case at bar.
"Question III. When it is shown that the accused was sitting at his hearth, at
night, in company only of his wife, without other light than that reflected from the
fire, and that the man with his back to the door was attending to the fire,
there suddenly entered a person whom he did not see or know, who struck him
one or two blows, producing a contusion on the shoulder, because of which he
turned, seized the person and took from him the stick with which he had
undoubtedly been struck, and gave the unknown person a blow, knocking him to
the floor, and afterwards striking him another blow on the head, leaving the
unknown lying on the floor, and left the house. It turned out the
unknown person was his father-in-law, to whom he rendered assistance as soon
as he learned his identity, and who died in about six days in consequence of
cerebral congestion resulting from there blow. The accused, who confessed the
facts, had always sustained pleasant relations with his father-in-law, whom he
visited during his sickness, demonstrating great grief over the
occurrence. Shall he be considered free from criminal responsibility, as having
acted in self-defense, with all the circumstances related in paragraph 4, article 8, of
the Penal Code? The criminal branch of the Audiencia of Valladolid found that he
was an illegal aggressor, without sufficient provocation, and that there did not
exist rational necessity for the employment of the force used, and in accordance
with articles 419 and 87 of the Penal Code condemned him to twenty months of
imprisonment, with accessory penalty and costs. Upon appeal by the accused, he
was acquitted by the supreme court, under the following sentence: 'Considering,
from the facts found by the sentence to have been proven, that the accused was
surprised from behind, at night, in his house beside his wife, who was nursing her
child, was attacked, struck, and beaten, without being able to distinguish the
person or persons attacking, nor the instruments with which they might
have executed their criminal intent, because of the fact that the attack was
made from behind and because there was no other than fire light in the room, and
considering that in such a situation and when the acts executed demonstrated
that they might endanger his existence, and possibly that of his wife and child,
more especially because his assailant was unknown, he should have defended
himself, and in doing so with the same stick with which he was attacked, he did
not exceed the limits of self-defense, nor did he use means which were not
rationally necessary, particularly because the instrument with which he killed was
the one which he took from his assailant, and was capable of producing death, and
in the darkness of the house and the consternation which naturally resulted from
such strong aggression, it was not given him to know or distinguish whether
there was one or more assailants, nor the arms which they might bear, nor that
which they might accomplish, and considering that the lower court did not find
from the accepted facts that there existed rational necessity for the
means employed, and that it did not apply paragraph 4 of article 8 of the Penal
Code, it erred, etc.' (Sentence of supreme court of
Spain, February 28, 1876.)" (Viada, Vol. I, p. 266.)

"Question XIX. A person returning, at night, to his house, which

was situated in a retired part of the city, upon arriving at a point where there
was no light, heard the voice of a man, at a distance of some 8 paces, saying:
'Face down, hand over your money!' because of which, and almost at the
same moment, he fired two shots from his pistol, distinguishing immediately the
voice of one of his friends (who had before simulated a different voice) saying, 'Oh!
they have killed me,' and hastening to his assistance, finding the body lying upon
the ground, he cried, 'Miguel, Miguel, speak, for God's sake, or I am ruined,'
realizing that he had been the victim of a joke, and not receiving a reply, and
observing that his friend was a corpse, he retired from the place. Shall he be
declared exempt in toto from responsibility as the author of this homicide, as
having acted in just self-defense under the circumstances defined in paragraph 4,
article 8, Penal Code ? The criminal branch of the Audiencia of Malaga did not so
find, but only found in favor of the accused two of the requisites of said article, but
not that of the reasonableness of the means employed to repel the attack, and,
therefore, condemned the accused to eight years and one day of prision
mayor, etc. The supreme court acquitted the accused on his appeal from this
sentence, holding that the accused was acting under a justifiable and excusable
mistake of fact as to the identity of the person calling to him, and that under the
circumstances, the darkness and remoteness, etc., the means employed were
rational and the shooting justifiable. (Sentence supreme court, March 17,
1885.)" (Viada, Vol. I, p. 136.)

"Question VI. The owner of a mill, situated in a remote spot, is awakened, at night,
by a large stone thrown against his window - at this, he puts his head out of the
window and inquires what is wanted, and is answered 'the delivery of all of his
money, otherwise his house would be burned' - because of which, and observing in
an alley adjacent to the mill four individuals, one of whom addressed him with
blasphemy, he fired his pistol at one of the men, who, on the next morning was
found dead on the same spot. Shall this man be declared exempt from criminal
responsibility as having acted in just self-defense with all of the requisities of
law? The criminal branch of the Audiencia of Zaragoza finds that there existed in
favor of the accused a majority of the requisites to exempt him from criminal
responsibility, but not that of reasonable necessity for the means, employed, and
condemned the accused to twelve months of prision correccional for the homicide
committed. Upon appeal, the supreme court acquitted the condemned, finding that
the accused, in firing at the malefactors, who attacked his mill at night in a
remote spot by threatening robbery and incendiarism, was acting in just self-
defense of his person, property, and family. (Sentence of May 23, 1877)." (I
Viada, p. 128.)
A careful examination of the facts as disclosed in the case at bar convinces us that
the defendant Chinaman struck the fatal blow alleged in the information in the
firm belief that the intruder who forced open the door of his sleeping room was a
thief, from whose assault he was in imminent peril, both of his life and of his
property and of the property committed to his charge; that in view of all the
circumstances, as they must have presented themselves to the defendant at the
time, he acted in good faith, without malice, or criminal intent, in the belief that
he was doing no more than exercising his legitimate right of self-defense; that had
the facts been as he believed them to be he would have been wholly exempt from
criminal liability on account of his act; and that he can not be said to have been
guilty of negligence or recklessness or even carelessness in falling into his mistake
as to the facts, or in the means adopted by him to defend himself from the
imminent danger which he believed threatened his person and his property and the
property under his charge.
The judgment of conviction and the sentence imposed by the trial court should be
reversed, and the defendant acquitted of the crime with which he is charged and
his bail bond exonerated, with the costs of both instances de oficio. So ordered.

FIRST DIVISION
[ G.R. No. 74324, November 17, 1988 ]
THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS.
FERNANDO PUGAY Y BALCITA, & BENJAMIN SAMSON Y
MAGDALENA, ACCUSED-APPELLANTS.

DECISION

MEDIALDEA, J.:

For the death of Bayani Miranda, a retardate, FERNANDO PUGAY Y BALCITA and
BENJAMIN SAMSON Y MAGDALENA were charged with the crime of MURDER in
Criminal Case No. 175-82 of the Court of First Instance (now Regional Trial Court)
of Cavite, under an information which reads as follows:
"That on or about May 19, 1982 at the town plaza of the Municipality of Rosario,
Province of Cavite, Philippines, and within the jurisdiction of this Honorable Court,
the above-named accused, conspiring, confederating and mutually helping and
assisting one another, with treachery and evident premeditation, taking advantage
of their superior strength, and with the decided purpose to kill, poured gasoline, a
combustible liquid to the body of Bayani Miranda and with the use of fire did then
and there, wilfully, unlawfully and feloniously, burn the whole body of said Bayani
Miranda which caused his subsequent death, to the damage and prejudice of the
heirs of the aforenamed Bayani Miranda.

"That the crime was committed with the qualifying circumstances of treachery and
the aggravating circumstances of evident premeditation and superior strength, and
the means employed was to weaken the defense; that the wrong done in the
commission of the crime was deliberately augmented by causing another wrong,
that is the burning of the body of Bayani Miranda.

"CONTRARY TO LAW" (p. 1, Records).

Upon being arraigned, both accused pleaded not guilty to the offense charged. After
trial, the trial court rendered a decision finding both accused guilty of the crime of
murder but crediting in favor of the accused Pugay the mitigating circumstance of
lack of intention to commit so grave a wrong, the dispositive portion of which reads
as follows:
"WHEREFORE, the accused Fernando Pugay y Balcita and Benjamin Samson y
Magdalena are pronounced guilty beyond reasonable doubt as principals by direct
participation of the crime of murder for the death of Bayani Miranda, and
appreciating the aforestated mitigating circumstance in favor of Pugay, he is
sentenced to a prison term ranging from twelve (12) years of prision mayor, as
minimum, to twenty (20) years of reclusion temporal, as maximum, and Samson to
suffer the penalty of reclusion perpetua together with the accessories of the law for
both of them. The accused are solidarily held liable to indemnify the heirs of the
victim in the amount of P13,940.00, plus moral damages of P10,000.00 and
exemplary damages of P5,000.00.

"Let the preventive imprisonment of Pugay be deducted from the principal penalty.

"Costs against both accused.

"SO ORDERED" (p. 248, Records).

Not satisfied with the decision, both accused interposed the present appeal and
assigned the following errors committed by the court a quo:

1. THE COURT A QUO ERRED IN UTILIZING THE STATEMENTS OF

ACCUSED-APPELLANTS IN ITS APPRECIATION OF FACTS DESPITE ITS
ADMISSION THAT THE ACCUSED-APPELLANTS WERE NOT ASSISTED
BY A COUNSEL DURING THE CUSTODIAL INVESTIGATION.

2. THE COURT A QUO ERRED IN NOT FINDING THAT THE SUPPRESSION

BY THE PROSECUTION OF SOME EVIDENCE IS FATAL TO ITS CASE.

3. THE COURT A QUO ERRED IN LENDING CREDENCE TO THE

INCREDIBLE TESTIMONY OF EDUARDO GABION WHO WAS ONE OF
THE MANY SUSPECTS ARRESTED BY THE POLICE (Accused-appellants'
Brief, p. 48, Rollo).

The antecedent facts are as follows:

The deceased Miranda, a 25-year old retardate, and the accused Pugay were
friends. Miranda used to run errands for Pugay and at times they slept together.

On the evening of May 19, 1982, a town fiesta fair was held in the public plaza of
Rosario, Cavite. There were different kinds of ride and one was a ferris wheel.

Sometime after midnight of the same date, Eduardo Gabion was sitting in the ferris
wheel and reading a comic book with his friend Henry. Later, the
accused Pugay and Samson with several companions arrived. These persons
appeared to be drunk as they were all happy and noisy. As the group saw the
deceased walking nearby, they started making fun of him. They made the deceased
dance by tickling him with a piece of wood.

Not content with what they were doing with the deceased, the
accused Pugay suddenly took a can of gasoline from under the engine of the ferris
wheel and poured its contents on the body of the former. Gabion told Pugay not to
do so while the latter was already in the process of pouring the gasoline. Then, the
accused Samson set Miranda on fire making a human torch out of him.

The ferris wheel operator later arrived and doused with water the burning body of
the deceased. Some people around also poured sand on the burning body and
others wrapped the same with rags to extinguish the flame.

The body of the deceased was still aflame when police officer Rolando Silangcruz
and other police officers of the Rosario Police Force arrived at the scene of the
incident. Upon inquiring as to who were responsible for the dastardly act, the
persons around spontaneously pointed to Pugay and Samson as the authors
thereof.

The deceased was later rushed to the Grace Hospital for treatment. In the
meantime, the police officers brought Gabion, the two accused and five other
persons to the Rosario municipal building for interrogation. Police officer Reynaldo
Canlas took the written statements of Gabion and the two accused, after which
Gabion was released. The two accused remained in custody.

After a careful review of the records, We find the grounds relied upon by the
accused-appellants for the reversal of the decision of the court a quo to be without
merit.

It bears emphasis that barely a few hours after the incident, accused-appellants
gave their written statements to the police. The accused Pugay admitted in his
statement, Exhibit F, that he poured a can of gasoline on the deceased believing
that the contents thereof was water and then the accused Samson set the deceased
on fire. The accused Samson, on the other hand, alleged in his statement that he
saw Pugay pour gasoline on Miranda but did not see the person who set him on fire.
Worthy of note is the fact that both statements did not impute any participation of
eyewitness Gabion in the commission of the offense.

While testifying on their defense, the accused?appellants repudiated their written

statements alleging that they were extracted by force. They claimed that the police
maltreated them into admitting authorship of the crime. They also engaged in a
concerted effort to lay the blame on Gabion for the commission of the offense.

Thus, while it is true that the written statements of the accused-appellants were
mentioned and discussed in the decision of the court a quo, the contents thereof
were not utilized as the sole basis for the findings of facts in the decision rendered.
The said court categorically stated that "even without Exhibits 'F' and 'G', there is
still Gabion's straightforward, positive and convincing testimony which remains
unaffected by the uncorroborated, self-serving and unreliable testimonies
of Pugay and Samson" (p. 247, Records).

Accused-appellants next assert that the prosecution suppressed the testimonies of

other eyewitnesses to the incident. They claim that despite the fact that there were
other persons investigated by the police, only Gabion was presented as an
eyewitness during the trial of the case. They argue that the deliberate non-
presentation of these persons raises the presumption that their testimonies would
be adverse to the prosecution.

There is no dispute that there were other persons who witnessed the commission of
the crime. In fact there appears on record (pp. 16-17, Records) the written
statements of one Abelardo Reyes and one Monico Alimorong alleging the same
facts and imputing the respective acts of pouring of gasoline and setting the
deceased on fire to the accused-appellants as testified to by Gabion in open court.
They were listed as prosecution witnesses in the information filed. Considering that
their testimonies would be merely corroborative, their non-presentation does not
give rise to the presumption that evidence willfully suppressed would be adverse if
produced. This presumption does not apply to the suppression of merely
corroborative evidence (U.S. vs. Dinola, 37 Phil. 797). Besides, the matter as to
whom to utilize as witness is for the prosecution to decide.

Accused-appellants also attack the credibility of the eyewitness Gabion alleging that
not only was the latter requested by the mother of the deceased to testify for the
prosecution in exchange for his absolution from liability but also because his
testimony that he was reading a comic book during an unusual event is contrary to
human behavior and experience.

Gabion testified that it was his uncle and not the mother of the deceased who asked
him to testify and state the truth about the incident. The mother of the deceased
likewise testified that she never talked to Gabion and that he saw the latter for the
first time when the instant case was tried. Besides, the accused Pugay admitted
that Gabion was his friend and both Pugay and the other accused Samson testified
that they had no previous misunderstanding with Gabion. Clearly, Gabion had no
reason to testify falsely against them.

In support of their claim that the testimony of Gabion to the effect that he
saw Pugay pour gasoline on he deceased and then Samson set him on fire is
incredible, the accused-appellants quote Gabion's testimony on cross-examination
that, after telling Pugay not to pour gasoline on the deceased, he (Gabion) resumed
reading comics; and that it was only when the victim's body was on fire that he
noticed a commotion.

However, explaining this testimony on re-direct examination, Gabion stated:

"Q. Mr. Gabion, you told the Court on cross-examination that you were reading comics when
you saw Pugay poured gasoline unto Bayani Miranda and lighted by Samson. How could
you possibly see that incident while you were reading comics?

"A. I put down the comics which I am reading and I saw what they were doing.

"Q. According to you also before Bayani was poured with gasoline and lighted and burned later
you had a talk with Pugay, is that correct?
"A. When he was pouring gasoline on Bayani Miranda I was trying to prevent him from doing
so.

"Q. We want to clarify. According to you a while ago you had a talk with Pugay and as a matter
of fact, you told him not to pour gasoline. That is what I want to know from you, if that is
true?

"A. Yes, sir.

"Q. Aside from Bayani being tickled with a stick on his ass, do you mean to say you come to
know that Pugay will pour gasoline unto him?

"A. I do not know that would be that incident.

"Q. Why did you as(k) Pugay in the first place not to pour gasoline before he did that actually?

"A. Because I pity Bayani, sir.

"Q. When you saw Pugay tickling Bayani with a stick on his ass you tried according to you to
ask him not to and then later you said you asked not to pour gasoline. Did Pugay tell you he
was going to pour gasoline on Bayani?

"A. I was not told, sir.

"Q. Did you come to know . . . . . how did you come to know he was going to pour gasoline that
is why you prevent him?

"A. Because he was holding on a container of gasoline. I thought it was water but it was
gasoline.

"Q. It is clear that while Pugay was tickling Bayani with a stick on his ass, he later got hold of a
can of gasoline, is that correct?

"A. Yes, sir.

"Q. And when he pick up the can of gasoline, was that the time you told him not to pour
gasoline when he merely pick up the can of gasoline.

"A. I saw him pouring the gasoline on the body of Joe.

"Q. So, it is clear when you told Pugay not to pour gasoline he was already in the process of
pouring gasoline on the body of Bayani?

"A. Yes, sir" (Tsn, July 30, 1983, pp. 32-33).

It is thus clear that prior to the incident in question, Gabion was reading a comic
book; that Gabion stopped reading when the group of Pugay started to make fun of
the deceased; that Gabion saw Pugay get the can of gasoline from under the engine
of the ferris wheel; that it was while Pugay was in the process of pouring the
gasoline on the body of the deceased when Gabion warned him not to do so; and
that Gabion later saw Samson set the deceased on fire.

However, there is nothing in the records showing that there was previous
conspiracy or unity of criminal purpose and intention between the two accused-
appellants immediately before the commission of the crime. There was no
animosity between the deceased and the accused Pugay or Samson. Their meeting
at the scene of the incident was accidental. It is also clear that the
accused Pugay and his group merely wanted to make fun of the deceased. Hence,
the respective criminal responsibility of Pugay and Samson arising from different
acts directed against the deceased is individual and not collective, and each of them
is liable only for the act committed by him (U.S. vs. Magcomot, et. al. 13, Phil.
386; U.S. vs. Abiog, et. al. 37 Phil. 1371).

The next question to be determined is the criminal responsibility of the

accused Pugay. Having taken the can from under the engine of the ferris wheel and
holding it before pouring its contents on the body of the deceased, this accused
knew that the can contained gasoline. The stinging smell of this flammable liquid
could not have escaped his notice even before pouring the same. Clearly, he failed
to exercise all the diligence necessary to avoid every undersirable consequence
arising from any act that may be committed by his companions who at the time
were making fun of the deceased. We agree with the Solicitor General that the
accused is only guilty of homicide through reckless imprudence defined in Article
365 of the Revised Penal Code, as amended. In U.S. vs. Maleza, et. al. 14 Phil. 468,
470, this Court ruled as follows:
"A man must use common sense, and exercise due reflection in all his acts; it is his
duty to be cautious, careful, and prudent, if not from instinct, then through fear of
incurring punishment. He is responsible for such results as anyone might foresee
and for acts which no one would have performed except through culpable abandon.
Otherwise his own person, rights and property, all those of his fellow-beings, would
ever be exposed to all manner of danger and injury."
The proper penalty that the accused Pugay must suffer is an indeterminate one
ranging from four (4) months of arresto mayor, as minimum, to four (4) years and
two (2) months of prision correccional, as maximum.

With respect to the accused Samson, the Solicitor General in his brief contends that
"his conviction of murder is proper considering that his act in setting the deceased
on fire knowing that gasoline had just been poured on him is characterized by
treachery as the victim was left completely helpless to defend and protect himself
against such an outrage" (p. 57, Rollo). We do not agree.

There is entire absence of proof in the record that the accused Samson had some
reason to kill the deceased before the incident. On the contrary, there is adequate
evidence showing that his act was merely a part of their fun-making that evening.
For the circumstance of treachery to exist, the attack must be deliberate and the
culprit employed means, methods, or forms in the execution thereof which tend
directly and specially to insure its execution, without risk to himself arising from
any defense which the offended party might make.

There can be no doubt that the accused Samson knew very well that the liquid
poured on the body of the deceased was gasoline and a flammable substance for he
would not have committed the act of setting the latter on fire if it were otherwise.
Giving him the benefit of doubt, it can be conceded that as part of their fun-making
he merely intended to set the deceased's clothes on fire. His act, however, does not
relieve him of criminal responsibility. Burning the clothes of the victim would cause
at the very least some kind of physical injuries on his person, a felony defined in
the Revised Penal Code. If his act resulted into a graver offense, as what took place
in the instant case, he must be held responsible therefor. Article 4 of the aforesaid
code provides, inter alia, that criminal liability shall be incurred by any person
committing a felony (delito) although the wrongful act done be different from that
which he intended.

As no sufficient evidence appears in the record establishing any qualifying

circumstances, the accused Samson is only guilty of the crime of homicide defined
and penalized in Article 249 of the Revised Penal Code, as amended. We are
disposed to credit in his favor the ordinary mitigating circumstance of no intention
to commit so grave a wrong as that committed as there is evidence of a fact from
which such conclusion can be drawn. The eyewitness Gabion testified that the
accused Pugay and Samson were stunned when they noticed the deceased burning
(Tsn, June 1, 1983, pp. 16-17).

The proper penalty that the accused Samson must suffer is an indeterminate one
ranging from eight (8) years of prision mayor, as minimum, to fourteen (14) years
of reclusion temporal, as maximum.

The lower court held the accused solidarity liable for P13,940.00, the amount spent
by Miranda's parents for his hospitalization, wake and interment. The indemnity for
death is P30,000.00. Hence, the indemnity to the heirs of the deceased Miranda is
increased to P43,940.00.

Both accused shall be jointly and severally liable for the aforesaid amount plus the
P10,000.00 as moral damages and P5,000.00 as exemplary damages as found by
the court a quo.

ACCORDINGLY, the judgment is affirmed with the modifications above-indicated.

Costs against the accused-appellants.

SO ORDERED.

[ G.R. No. 42288, February 16, 1935 ]

THE PEOPLE OF THE PHILIPPINE ISLANDS, PLAINTIFF AND
APPELLEE, VS. CORNELIO BAYONA, DEFENDANT AND
 APPELLANT.

DECISION

VICKERS, J.:

This is an appeal from a decision of Judge Braulio Bejasa in the Court of First
Instance of Capiz, finding the defendant; guilty of a violation of section 416 of the
Election Law and sentencing him to suffer imprisonment for thirty days and to pay a
fine of P50, with subsidiary imprisonment in case of insolvency, and to pay the
costs.

The facts as found by the trial judge are as follows:

"A eso de las once de la maiiana del dia 5 de junio de 1934, mientras se celebraban
las elecciones generales en el precinto electoral numero 4, situado en el Barrio de
Aranguel del Municipio de Pilar, Proviricia de Capiz, el aqui acusado fue sorprendido
por Jose E. Desiderio, que era entonces el representante del Departamento del
Interior para inspeccionar las elecciones generales en la Provincia de Capiz, y por el
comandante de la Constabularia F. B. Agdamag que iba en aquella ocasi6n con el
citado Jose" E. Desiderio, portando en su cinto el rev61ver Colt de calibre 32, No.
195382, Exhibit A, dentro del cercp que rodeaba el edificio destinado para el citado
colegio electoral numero 4 y a una distancia de 22 metros del referido colegio
electoral. Inmediatamente Jose" E. Desiderio se incaut6 del rev61ver eri cuesti6n.

"La defensa, por medio del testimonio de Jose" D. Benliro y de Dioscoro

Buenvenida, trat6 de establecer que el aqui acusado paro en la calle que daba
frente al colegio electoral numero 4 a invitaci6n de dicho Jose" D. Benliro y con el
objeto de suplicarle al mencionado acusado para llevar a su casa a los electores del
citado Jos6 D. Benliro que ya habian terminado de votar, y que cuando Uegaron
Jose" E. Desiderio y el comandante F. B. Agdamag, el aqui acusado estaba en la
calle. Desde el colegio electoral hasta el sitio en que, segun dichos testigos, estaba
el acusado cuando se le quito" el revolver Exhibit A, hay una distancia de 27
metros."

Appellant's attorney makes the following assignments of error:

"1. El Juzgado a quo err6 al declarar que el apelante fue sorprendido con su
rev61ver dentro del cerco de la casa escuela del Barrio de Aranguel, Municipio de
Pilar, que fue habilitado como colegio electoral.

"2. El Juzgado a quo erro al declarar al apelante culpable de la infraccion de la Ley

Electoral querellada y, por consiguiente, al condenarle a prision y multa."
As to the question of fact raised by the first assignment of error, it is sufficient to
say that the record shows that both Jose E. Desiderio, a representative of the
Department of the Interior, and Major Agdamag of the Philippine Constabulary, who
had been designated to supervise the elections in the Province of Capiz, testified
positively that the defendant was within the fence surrounding the polling place
when Desiderio took possession of the revolver the defendant was carrying. This
also disposes of that part of the argument under the second assignment of error
based on the theory that the defendant was in a public road, where he had a right
to be, when he was arrested. The latter part of the argument under the second
assignment of error is that if it be conceded that the defendant went inside of the
fence, he is nevertheless not guilty of a violation of the Election Law, because he
was called by a friend and merely approached him to find out what he wanted and
had no interest in the election; that there were many people in the public road in
front of the polling place, and the defendant could not leave his revolver in his
automobile, which he himself was driving,without running the risk of losing it and
thereby incurring in a violation of the law.

As to the contention that the defendant could not leave his revolver in his
automobile without the risk of losing it because he was alone, it is sufficient to say
that under the circumstances it was not necessary for the defendant to leave his
automobile merely because somebody standing near the polling place had called
him, nor does the record show that it was necessary for the defendant to carry
arms on that occasion.

The Solicitor-General argues that since the Government does not especially
construct buildings for electoral precincts but merely utilizes whatever building
there may be available, and all election precincts are within fifty meters from some
road, a literal application of the law would be absurd, because members of the
police force or Constabulary in pursuit of a criminal would be included in that
prohibition and could not use the road in question if they were carrying firearms;
that people living in the vicinity of electoral precincts would be prohibited from
cleaning or handling their firearms within their own residences on registration and
election days;

That the object of the Legislature was merely to prohibit the display of firearms
with intention to influence in any way the free and voluntary exercise of suffrage;

That if the real object of the Legislature was to insure the free exercise of suffrage,
the prohibition in question should only be applied when the facts reveal that the
carrying of the firearms was intended for the purpose of using them directly or
indirectly to influence the free choice of the electors (citing the decision of this court
in the case of People vs. Urdeleon [G. R. No. 31536, promulgated November 20,
1929, not reported], where a policeman, who had been sent to a polling place to
preserve order on the request of the chairman of the board of election inspectors,
was acquitted) ; that in the case at bar there is no evidence that the defendant
went to the election precinct either, to vote or to work for the candidacy of anyone,
but on the other hand the evidence shows that the defendant had no intention to go
to the electoral precinct; that he was merely passing along the road in front of the
building where the election wasbeing held when a friend of his called him; that
while in the strict, narrow interpretation of the law the defendant is guilty, it would
be inhuman and unreasonable to convict him.

We cannot accept the reasons advanced by the SolicitorGeneral for the acquittal of
the defendant. The law which the defendant violated is a statutory provision, and
the intent with which he violated it is immaterial. It may be conceded that the
defendant did not intend to intimidate any elector or to violate the law in any other
way, but when he got out of his automobile and carried his revolver inside of the
fence surrounding the polling place, he committed the act complained of, and he
committed it willfully. The act prohibited by the Election Law was complete. The
intention to intimidate the voters or to interfere otherwise with the election is not
made an essential element of the offense. Unless such an offender actually makes
use of his revolver, it would be extremely difficult, if not impossible, to prove that
he intended to intimidate the voters.

The rule is that in acts mala in se there must be a criminal intent, but in those mala
prohibita it is sufficient if the prohibited act was intentionally done. "Care must be
exercised in distinguishing the difference between the intent to commit the crime
and the intent to perpetrate the act. * * *" (U. S. vs. Go Chico, 14 Phil, 128.)
"While it is true that, as a rule and on principles of abstract justice, men are not
and should not be held criminally responsible for acts committed by them without
guilty knowledge and criminal or at least evil intent (Bishop's New Crim. Law, vol. I,
sec. 286), the courts have always recognized the .power of the legislature, on
grounds of public policy and compelled by necessity, 'the great master of things', to
forbid in a limited class of cases the doing of certain acts, and to make their
commission criminal without regard to the intent of the doer. (U. S. vs. Go Chico,
14 Phil., 128; U. S. vs. Ah Chong, 15 Phil., 488.) In such cases no judicial authority
has the power to require, in the enforcement of the law, such knowledge or motive
to be shown." (U. S. vs. Siy Cong Bieng and Co Kong, 30 Phil., 577.)

The cases suggested by the Solicitor-General do not seem to us to present any

difficulty in the enforcement of the law. If a man with a revolver merely passes
along a public road on election day, within fifty meters of a polling place, he does
not violate the provision of law in question, because he had no intent to perpetrate
the act prohibited, and the same thing would be true of a peace officer in pursuing
a criminal; nor would the prohibition extend to persons living within fifty meters of
a polling place, who merely clean or handle their firearms within their own
residences on election day, as they would not be carrying firearms within the
contemplation of the law; and as to the decision in the case of People vs. Urdeleon,
supra, we have recently held in the case of People vs. Ayre, and Degracia (p. 169.
ante), that a policeman who goes to a polling place on the request of the board of
election inspectors for the purpose of maintaining order is authorized by law to
carry his arms.

If we were to adopt the specious reasoning that the appellant should be acquitted
because it was not proved that he tried to influence or intended to influence the
mind of any voter, anybody could: sell intoxicating liquor or hold a cockfight or a
horse race on election day with impunity.

As to the severity of the minimum penalty provided by law for a violation of the
provision in question, that is a matter for the Chief Executive or the Legislature.

For the foregoing reasons, the decision appealed from is affirmed, with the costs
against the appellant.

[ G.R. No. 124670, June 21, 2000 ]

THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS.
PATROLMAN DOMINGO BELBES, ACCUSED-APPELLANT.

DECISION

QUISUMBING, J.:

Before the Regional Trial Court of Tabaco, Albay, Branch 18, Patrolman Domingo
Belbes stood charged of Murder. The information against him reads:

"That on or about the 16th of February, 1990 at 9:00 o'clock in the evening, more
or less, inside the campus of Pili National High School, at Barangay Pili, Municipality
of Bacacay, Province of Albay, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, with treachery, taking advantage of
nighttime, employing means to insure or afford impunity, with the use of high
powered firearm, and with intent to kill, did then and there willfully, unlawfully,
feloniously, suddenly, unexpectedly and without any warning, attack, fire and shoot
successively with an armalite rifle (M-16) FERNANDO B. BATALLER while the latter
was intoxicated, thereby hitting and inflicting upon him multiple serious and mortal
wounds on his head, at the right lower face, the chest (front) at the left antero
lateral approximately 5 cm. below but lateral to the left nipple, at the left lateral
waistline, thereby lacerating the liver, hitting the stomach portions of the large and
small intestines and lower vertebrae, and the chest (back) at the middle back and
another at the left back, lateral level of the lower rib, which caused Fernando B.
Bataller's direct and instantaneous death, to the damage and prejudice of his legal
heirs.

ACTS CONTRARY TO LAW."[1]

When arraigned, he pleaded not guilty.

The facts established during trial by the prosecution is summarized by the appellee
in its brief, thus:

"In the evening of February 16, 1990, appellant Pat. Domingo Belbes and Pat. Jose
Pabon were assigned by the Bacacay Station Commander to maintain peace and
order at the Junior and Senior Prom of Pili Barangay High School, Pili, Bacacay,
Albay.

Around 9:00 p.m. while Teacher-In-Charge Mila Ulanca, appellant, Pat. Pabon and
Elmo Bes were watching the dance, two students, Riselle Banares and Juliana
Basaysay, approached Mrs. Ulanca and said "Mam, it seems that there is somebody
making trouble." Appellant and Pat. Pabon, armed with an armalite rifle and a .38
caliber revolver, respectively, responded forthwith. Moments after the two police
officers left, bursts of gunfire-- "Rat-tat-tat-tat-tat" filled the air. Fernando Bataller,
a graduating student of Pili Barangay High School, was hit on different parts of his
body and died.

Moments before the gruesome incident, Fernando Bataller, then drunk, was in the
company of Carlito Bataller and Rosalio Belista. While Fernando was vomiting and
holding on to the bamboo wall of the school's temporary building, the bamboo splits
broke. At this instance, appellant and Pat. Pabon appeared. Without warning,
appellant fired his gun. Fernando slumped on the ground, bathed with his own
blood. Appellant and Pat. Pabon fled from the crime scene.

Fernando was pronounced dead on arrival at the hospital. As shown in the autopsy
report, Fernando suffered the following gunshot wounds: (1) head, located at the
right lower face, skin, muscles, blood vessels, nerves, bone torn away; (2) chest
(front, located at left, antero lateral approximately 5 cm. below but lateral to the
left nipple, another gunshot wound on the same location with tattooing located at
left lateral waistline; (3) chest (back) located at the middle back at the level of the
lowest rib, skin and superficial muscles torn away, another gunshot wound located
at the left back, lateral level of the lowest rib, with tattooing. (Citations omitted)"[2]

In his defense, the accused-appellant presented his version of the fatal incident,
summed up by the trial court as follows:

"The accused, Domingo Belbes in his defense testified that he was at Pili Barangay
High School with P/Cpl. Jose Pabon because they were detailed by their Station
Commander. x x x At 9:00 p.m. two female students reported to them and Mrs.
Ulanca that somebody was making trouble at the back of the temporary building.
They were requested by Mrs. Ulanca to see what happened and they went to the
place. There they came upon somebody who was making trouble and destroying
the wall of the temporary building. He came to know that it was Fernando Bataller.
Fernando Bataller had some companions, Carlito Bataller and certain Belista.
Fernando Bataller was more than 20 years old at that time and Carlito was about
Fernando's age. He saw Fernando destroying the wall of the temporary building
which was made of bamboo splits. Pabon was in front of him. The two companions
were prevailing upon Fernando. Fernando was drunk or a little bit tipsy. He was not
vomiting but he smelled of wine. They approached Fernando and identified
themselves as policemen. Fernando did not mind them. Fernando stabbed Pabon
with a knife. Belbes knew because he saw the glint of the blade when the thrust
was made on Pabon. Pabon and Bataller were about one (1) meter away from each
other. Pabon was not hit, for he was able to move backward. Fernando made two
thrusts on Pabon. After Pabon retreated because of the knife thrusts, he (Belbes)
was also stabbed by Fernando. He was hit on his lower left shoulder. He was able to
hold Fernando's hand because he wanted to get the knife from him. His firearm was
slung on his shoulder. Fernando was able to free himself. Fernando made another
thrust and Belbes moved to his left. Then he made a warning shot. After the
warning shot, Fernando suddenly grabbed his firearm. Belista was quite aggressive
at that moment, while Carlito wanted to kick him. Fernando was able to hold the
barrel of the armalite. They struggled with each other and the gun went off
considering that his armalite was semi-automatic, with one squeeze of the trigger
one shot came out. During the process of grappling for the armalite he could not
recall how many shots came out. When his service armalite went off he saw
Fernando fall to the ground. When Fernando fell, he took the knife from his hand.
The people gathered around them. They asked that Fernando be brought to the
hospital. After one hour, the police mobile car arrived. They proceeded to the Police
Station. There they turned over the knife to the Desk Officer. The knife is now with
the Provincial Command."[3]

Defense witness Jose Pabon, also a policeman, who was present when the incident
happened, corroborated the testimony of the appellant. However, on cross-
examination, Pabon belied the fact that the appellant fired a warning shot. Pabon
likewise failed to mention anything about aggression on the part of the companions
of the deceased, namely Carlito Bataller and Rosalio Belista. He only recalled that
said companions ganged up on Belbes after he shot the deceased.

Finding the defense weak, while the evidence for the prosecution sufficiently strong,
the trial court convicted the appellant of murder and sentenced him to reclusion
perpetua.

In this appeal, counsel de oficio raised one issue:

WAS THE TRIAL [Court] CORRECT IN HOLDING ACCUSED-APPELLANT GUILTY OF
MURDER?[4]

We shall now consider this matter as well as the more basic issues of self-defense
claimed by appellant and the credibility of the witness for the prosecution. Appellant
policeman admits firing the fatal gunshots that hit the deceased student. But he
claims that he did so in self-defense. He contends that he was only performing his
official functions when he responded in the course of police duties to the
information that somebody was making trouble and disturbing the peace. Being in
charge of maintaining peace and order within the vicinity, he ascertained the
veracity of the information given by the students concerned. He asserts that in the
absence of intent and voluntariness, he cannot be faulted for the death of the
deceased.

At the outset, we note that appellant questions the credibility of the sole eye-
witness for the prosecution, Carlito Bataller. He states that Carlito is the cousin and
friend of the deceased. In his view, Carlito had strong motive to falsely testify
against him. Moreover, appellant says that Carlito kindled some moral guilt because
he contributed to the sudden death of his cousin. Appellant alleges that if only
Carlito had prevailed over Fernando (instead of tolerating the hostility of the
deceased), he could have prevented the shooting incident.

Regrettably, appellant offers no material evidence to sufficiently support his claim

of self-defense on the face of mortal danger while on police duty. The cross-
examination of Carlito Bataller did not bear out his averments of fraternal bias and
psychological guilt or moral taint in Carlito's testimony. The testimony of the single
witness, if positive and clear, is sufficient to sustain a judgment of conviction, even
in a charge for murder.[5] Moreover, when the issue boils down to the credibility of
witnesses, the findings of the trial court deserve great respect since it is in a better
position to observe the demeanor of the witnesses while testifying in court, and to
discern its dimensions, both verbal and non-verbal.[6] The relationship of a witness
to the victim does not necessarily diminish the former's credibility.[7]

It is a settled rule that the findings and conclusions of the trial court on the
credibility of a witness deserve respect because it is in a better position to
determine whether the witness was telling the truth or not, having observed the
demeanor of the witness while testifying on the witness stand.[8] In the case at bar,
there appears to be no cogent reason why we should not adhere to this rule.

Where the accused owns up to killing the victim in self-defense, the burden of
evidence shifts to him. He must show by clear and convincing evidence that he
indeed acted in self-defense, or in defense of a relative or a stranger.[9] To prove
self-defense, the accused must show with clear and convincing evidence, that: (1)
he is not the unlawful aggressor; (2) there was lack of sufficient provocation on his
part; and (3) he employed reasonable means to prevent or repel the aggression.
Self-defense, like alibi, is a defense which can easily be concocted. It is well settled
in this jurisdiction that once an accused had admitted that he inflicted the fatal
injuries on the deceased, it was incumbent upon him, in order to avoid criminal
liability, to prove the justifying circumstance claimed by him with clear, satisfactory
and convincing evidence. He cannot rely on the weakness of the prosecution but on
the strength of his own evidence, "for even if the evidence of the prosecution were
weak it could not be disbelieved after the accused himself had admitted the
killing."[10]

Appellant testified that upon responding to the report of two students, he and
Patrolman Pabon, saw Fernando Bataller destroying the bamboo wall of the school's
temporary building. Fernando appeared to be drunk and a little bit tipsy. They
approached Fernando and identified themselves as policemen but the former
ignored them. Instead, Fernando lunged with a knife at Patrolman Pabon but the
latter avoided the thrust. Afterwards, Fernando also stabbed the appellant and hit
his left shoulder. As another thrust was coming, appellant claims he fired a warning
shot. Fernando grabbed the armalite and they struggled until the gun went off
hitting Fernando, according to appellant.

We have serious questions on accused-appellant's claim of self-defense, on his part,

against the alleged aggressiveness of the deceased student. First, why was the
knife allegedly used by the deceased mis-handled? It was not even subjected to
fingerprinting. Second, why was the wound on appellant's shoulder medically
examined only after the lapse of more than twenty-one hours? Was it possibly self-
inflicted? According to the doctor who examined him, Dr. Evelyn Amador, it was a
possibility.[11] Lastly, as observed by the trial court, if it was true that they grappled
face to face with each other, why was the victim hit sideways, as testified to by
Amador?

The time factor here appears significant. Mrs. Mila Ulanca testified that it only took
about six seconds from the time Patrolman Belbes left his seat until she heard the
burst of gunshots.[12] This testimony is not contradicted or rebutted.

Thus, appellant's claim of self-defense could not prosper. The evidence on record,
however, reveals an incomplete justifying circumstance defined in Article 11,
paragraph number 5 of the Revised Penal Code.[13] A person incurs no criminal
liability when he acts in the fulfillment of a duty or in the lawful exercise of a right
or office. But we must stress there are two requisites for this justifying
circumstance: (a) that the offender acted in the performance of a duty or in the
lawful exercise of a duty or in the lawful exercise of a right: and (b) that the injury
or offense committed be the necessary consequence of the due performance of
such right or office.[14] In the instant case, only the first requisite is present;
admittedly appellant acted in the performance of his duty. However, the second
requisite is lacking, for the killing need not be a necessary consequence of the
performance of his duty. His duty is to maintain peace and order during the Junior
and Senior Prom. But he exceeded such duty, in our view, when he fired his
armalite without warning. No doubt, the concept of mitigating circumstances is
founded on leniency in favor of an accused who has shown less perversity in the
commission of an offense.[15] Though his protestation of innocence is unavailing, his
offense could only be characterized as homicide, not murder, as hereafter shown.

On one hand, treachery did not attend the commission of the crime as to rule out
murder. Treachery cannot be presumed but must be proved by clear and convincing
evidence as conclusively as the killing itself. For the same to be considered as a
qualifying circumstance, two conditions must concur: (a) the employment of
means, method or manner of execution which would ensure the safety of the
malefactor from defensive or retaliatory acts on the part of the victim, no
opportunity being given the latter to defend himself or to retaliate; and (b) the
means, method or manner of execution were deliberately or consciously adopted by
the offender.[16] There is no showing that the shooting was premeditated or that
appellant, in shooting the victim, employed means, methods or forms to ensure its
execution, without risk to himself arising from the defense which the offended
victim might make. Likewise, mere suddenness of the attack does not necessarily
imply treachery.[17]

On the other hand, the offense is definitely not reckless imprudence resulting in
homicide because the shooting was intentional.[18] Illustrations of reckless
imprudence resulting in homicide are: (1) exhibiting a loaded revolver to a friend,
who was killed by the accidental discharge brought about by negligent
handling;[19] or (2) discharging a firearm from the window of one's house and killing
a neighbor who just at the moment leaned over the balcony front;[20] or (3) where
the defendant, to stop a fist fight, fired his .45 caliber pistol twice in the air, and, as
the bout continued, he fired another shot at the ground, but the bullet ricocheted
and hit a bystander who died soon thereafter.[21] In this case, appellant intended to
fire AT the victim, and in fact hit ONLY the victim.

We conclude that appellant is guilty only of homicide, mitigated by the incomplete

justifying circumstance of fulfillment of duty. The penalty for homicide is reclusion
temporal. There being one mitigating circumstance, the maximum of the penalty
should be reclusion temporal in its minimum period, which is 12 years and 1 day to
14 years and 8 months. Applying the indeterminate sentence law, the minimum of
said penalty should be taken from prision mayor.

WHEREFORE, the decision of the trial court convicting appellant Domingo Belbes
of the crime of murder is hereby MODIFIED. Appellant is found guilty of the crime
of homicide and sentenced to an indeterminate penalty of eight (8) years of prision
mayor minimum, as minimum, to fourteen (14) years of reclusion
temporal minimum, as maximum. He is also ordered to pay the heirs of the victim
the amount of P50,000.00 as civil indemnity and P20,000.00 as moral damages,
and to pay the costs.

SO ORDERED.

[ G.R. NO. 155791, March 16, 2005 ]

MELBA QUINTO, PETITIONER, VS. DANTE ANDRES AND
RANDYVER PACHECO, RESPONDENTS.

DECISION

CALLEJO, SR., J.:

At around 7:30 a.m. on November 13, 1995, eleven-year-old Edison Garcia, a

Grade 4 elementary school pupil, and his playmate, Wilson Quinto, who was also
about eleven years old, were at Barangay San Rafael, Tarlac, Tarlac. They saw
respondents Dante Andres and Randyver Pacheco by the mouth of a drainage
culvert. Andres and Pacheco invited Wilson to go fishing with them inside the
drainage culvert.[1] Wilson assented. When Garcia saw that it was dark inside, he
opted to remain seated in a grassy area about two meters from the entrance of the
drainage system.[2]

Respondent Pacheco had a flashlight. He, along with respondent Andres and
Wilson, entered the drainage system which was covered by concrete culvert about a
meter high and a meter wide, with water about a foot deep.[3] After a while,
respondent Pacheco, who was holding a fish, came out of the drainage system and
left[4] without saying a word. Respondent Andres also came out, went back inside,
and emerged again, this time, carrying Wilson who was already dead. Respondent
Andres laid the boy’s lifeless body down in the grassy area.[5] Shocked at the
sudden turn of events, Garcia fled from the scene.[6] For his part, respondent
Andres went to the house of petitioner Melba Quinto, Wilson’s mother, and
informed her that her son had died. Melba Quinto rushed to the drainage culvert
while respondent Andres followed her.[7]

The cadaver of Wilson was buried without any autopsy thereon having been
conducted. The police authorities of Tarlac, Tarlac, did not file any criminal
complaint against the respondents for Wilson’s death.

Two weeks thereafter, or on November 28, 1995, National Bureau of Investigation

(NBI) investigators took the sworn statements of respondent Pacheco, Garcia and
petitioner Quinto.[8] Respondent Pacheco alleged that he had never been to the
drainage system catching fish with respondent Andres and Wilson. He also
declared that he saw Wilson already dead when he passed by the drainage system
while riding on his carabao.

On February 29, 1996, the cadaver of Wilson was exhumed. Dr. Dominic Aguda of
the NBI performed an autopsy thereon at the cemetery and submitted his autopsy
report containing the following postmortem findings:

POSTMORTEM FINDINGS

Body in previously embalmed, early stage of decomposition, attired with white long
sleeves and dark pants and placed inside a wooden coffin in a niche-apartment
style.

Hematoma, 14.0 x 7.0 cms., scalp, occipital region.

Abrasion, 4.0 x 3.0 cms., right face, 5.0 x 3.0 cms., left forearm.
Laryngo – tracheal lumina – congested and edematous containing muddy particles
with bloody path.
Lungs – hyperinflated, heavy and readily pits on pressure; section contains bloody
froth.
Brain – autolyzed and liquefied.
Stomach – partly autolyzed.

CAUSE OF DEATH: Asphyxia by drowning; traumatic head injuries, contributory.[9]

The NBI filed a criminal complaint for homicide against respondents Andres and
Pacheco in the Office of the Provincial Prosecutor, which found probable cause for
homicide by dolo against the two.

An Information was later filed with the Regional Trial Court (RTC) of Tarlac, Tarlac,
charging the respondents with homicide. The accusatory portion reads:

That at around 8 o’clock in the morning of November 13, 1995, in the Municipality
of Tarlac, Province of Tarlac, Philippines, and within the jurisdiction of this
Honorable Court, the said accused Dante Andres and Randyver Pacheco y Suliven
@ Randy, conspiring, confederating, and helping one another, did then and there
willfully, unlawfully, and feloniously attack, assault, and maul Wilson Quinto
inside a culvert where the three were fishing, causing Wilson Quinto to drown and
die.
CONTRARY TO LAW.[10]

After presenting Garcia, the prosecution presented Dr. Dominic Aguda, who testified
on direct examination that the hematoma at the back of the victim’s head and the
abrasion on the latter’s left forearm could have been caused by a strong force
coming from a blunt instrument or object. The injuries in the larynx and trachea
also indicated that the victim died of drowning, as some muddy particles were also
found on the lumina of the larynx and trachea (“Nakahigop ng putik”). Dr. Aguda
stated that such injury could be caused when a person is put under water by
pressure or by force.[11] On cross-examination, Dr. Aguda declared that the
hematoma on the scalp was caused by a strong pressure or a strong force applied
to the scalp coming from a blunt instrument. He also stated that the victim could
have fallen, and that the occipital portion of his head could have hit a blunt
object.

Dr. Aguda also declared that the 14x7-centimeter hematoma at the back of
Wilson’s head could have rendered the latter unconscious, and, if he was thrown in
a body of water, the boy could have died by drowning.

In answer to clarificatory questions made by the court, the doctor declared that the
4x3-centimeter abrasion on the right side of Wilson’s face could have also been
caused by rubbing against a concrete wall or pavement, or by contact with a rough
surface. He also stated that the trachea region was full of mud, but that there was
no sign of strangulation.[12]

After the prosecution had presented its witnesses and the respondents had
admitted the pictures showing the drainage system including the inside portions
thereof,[13] the prosecution rested its case.

The respondents filed a demurer to evidence which the trial court granted on the
ground of insufficiency of evidence, per its Order dated January 28, 1998. It also
held that it could not hold the respondents liable for damages because of the
absence of preponderant evidence to prove their liability for Wilson’s death.

The petitioner appealed the order to the Court of Appeals (CA) insofar as the civil
aspect of the case was concerned. In her brief, she averred that –

THE TRIAL COURT ERRED IN DISMISSING THE CASE AND IN RULING THAT NO
PREPONDERANT EVIDENCE EXISTS TO HOLD ACCUSED-APPELLEES CIVILLY LIABLE
FOR THE DEATH OF THE VICTIM WILSON QUINTO.[14]

The CA rendered judgment affirming the assailed order of the RTC on December 21,
2001. It ruled as follows:
The acquittal in this case is not merely based on reasonable doubt but rather on a
finding that the accused-appellees did not commit the criminal acts complained
of. Thus, pursuant to the above rule and settled jurisprudence, any civil action ex
delicto cannot prosper. Acquittal in a criminal action bars the civil action arising
therefrom where the judgment of acquittal holds that the accused did not commit
the criminal acts imputed to them. (Tan v. Standard Vacuum Oil Co., 91 Phil.
672)[15]

The petitioner filed the instant petition for review and raised the following issues:

WHETHER OR NOT THE EXTINCTION OF RESPONDENTS’ CRIMINAL LIABILITY,

LIKEWISE, CARRIES WITH IT THE EXTINCTION OF THEIR CIVIL LIABILITY.

II

WHETHER OR NOT PREPONDERANT EVIDENCE EXISTS TO HOLD RESPONDENTS

CIVILLY LIABLE FOR THE DEATH OF WILSON QUINTO.[16]

The petitioner avers that the trial court indulged in mere possibilities, surmises and
speculations when it held that Wilson died because (a) he could have fallen, his
head hitting the stones in the drainage system since the culvert was slippery; or (b)
he might have been bitten by a snake which he thought was the prick of a fish fin,
causing his head to hit hard on the top of the culvert; or (c) he could have lost
consciousness due to some ailment, such as epilepsy. The petitioner also alleges
that the trial court erred in ruling that the prosecution failed to prove any ill motive
on the part of the respondents to kill the victim, and in considering that respondent
Andres even informed her of Wilson’s death.

The petitioner posits that the trial court ignored the testimony of the Medico-Legal
Expert, Dr. Aguda; the nature, location and number of the injuries sustained by the
victim which caused his death; as well as the locus criminis. The petitioner insists
that the behavior of the respondents after the commission of the crime betrayed
their guilt, considering that respondent Pacheco left the scene, leaving respondent
Andres to bring out Wilson’s cadaver, while respondent Andres returned inside the
drainage system only when he saw Garcia seated in the grassy area waiting for his
friend Wilson to come out.

The petitioner contends that there is preponderant evidence on record to show that
either or both the respondents caused the death of her son and, as such, are jointly
and severally liable therefor.

In their comment on the petition, the respondents aver that since the prosecution
failed to adduce any evidence to prove that they committed the crime of homicide
and caused the death of Wilson, they are not criminally and civilly liable for the
latter’s death.

The petition has no merit.

Every person criminally liable for a felony is also civilly liable.[17] The civil liability of
such person established in Articles 100, 102 and 103 of the Revised Penal Code
includes restitution, reparation of the damage caused, and indemnification for
consequential damages.[18] When a criminal action is instituted, the civil action for
the recovery of civil liability arising from the offense charged shall be deemed
instituted with the criminal action unless the offended party waives the civil action,
reserves the right to institute it separately or institutes the civil action prior to the
criminal action.[19] With the implied institution of the civil action in the criminal
action, the two actions are merged into one composite proceeding, with the criminal
action predominating the civil.[20]

The prime purpose of the criminal action is to punish the offender in order to deter
him and others from committing the same or similar offense, to isolate him from
society, to reform and rehabilitate him or, in general, to maintain social
order.[21] The sole purpose of the civil action is the restitution, reparation or
indemnification of the private offended party for the damage or injury he sustained
by reason of the delictual or felonious act of the accused.[22] While the prosecution
must prove the guilt of the accused beyond reasonable doubt for the crime
charged, it is required to prove the cause of action of the private complainant
against the accused for damages and/or restitution.

The extinction of the penal action does not carry with it the extinction of the civil
action. However, the civil action based on delict shall be deemed extinguished if
there is a finding in a final judgment in the civil action that the act or omission from
where the civil liability may arise does not exist.[23]

Moreover, a person committing a felony is criminally liable for all the natural and
logical consequences resulting therefrom although the wrongful act done be
different from that which he intended.[24] “Natural” refers to an occurrence in the
ordinary course of human life or events, while “logical” means that there is a
rational connection between the act of the accused and the resulting injury or
damage. The felony committed must be the proximate cause of the resulting
injury. Proximate cause is that cause which in natural and continuous sequence,
unbroken by an efficient intervening cause, produces the injury, and without which
the result would not have occurred. The proximate legal cause is that acting first
and producing the injury, either immediately, or by setting other events in motion,
all constituting a natural and continuous chain of events, each having a close causal
connection with its immediate predecessor.[25]
There must be a relation of “cause and effect,” the cause being the felonious act of
the offender, the effect being the resultant injuries and/or death of the victim. The
“cause and effect” relationship is not altered or changed because of the pre-existing
conditions, such as the pathological condition of the victim (las condiciones
patologica del lesionado); the predisposition of the offended party (la predisposicion
del ofendido); the physical condition of the offended party (la constitucion fisica del
herido); or the concomitant or concurrent conditions, such as the negligence or
fault of the doctors (la falta de medicos para sister al herido); or the conditions
supervening the felonious act such as tetanus, pulmonary infection or gangrene.[26]

The felony committed is not the proximate cause of the resulting injury when:

(a) there is an active force that intervened between the felony committed and the
resulting injury, and the active force is a distinct act or fact absolutely foreign from
the felonious act of the accused; or

(b) the resulting injury is due to the intentional act of the victim.[27]

If a person inflicts a wound with a deadly weapon in such a manner as to put life in
jeopardy and death follows as a consequence of their felonious act, it does not alter
its nature or diminish its criminality to prove that other causes cooperated in
producing the factual result. The offender is criminally liable for the death of the
victim if his delictual act caused, accelerated or contributed to the death of the
victim.[28] A different doctrine would tend to give immunity to crime and to take
away from human life a salutary and essential safeguard.[29] This Court has
emphasized that:

… Amid the conflicting theories of medical men, and the uncertainties attendant
upon the treatment of bodily ailments and injuries, it would be easy in many cases
of homicide to raise a doubt as to the immediate cause of death, and thereby to
open a wide door by which persons guilty of the highest crime might escape
conviction and punishment. …[30]

In People v. Quianzon,[31] the Supreme Court held:

… The Supreme Court of Spain, in a Decision of April 3, 1879, said in a case similar
to the present, the following: Inasmuch as a man is responsible for the
consequences of his act – and in this case, the physical condition and temperament
of the offended party nowise lessen the evil, the seriousness whereof is to be
judged, not by the violence of the means employed, but by the result actually
produced; and as the wound which the appellant inflicted upon the deceased was
the cause which determined his death, without his being able to counteract its
effects, it is evident that the act in question should be qualified as homicide, etc.[32]

In the present case, the respondents were charged with homicide by

dolo. In People v. Delim,[33] the Court delineated the burden of the prosecution to
prove the guilt of the accused for homicide or murder:
In the case at bar, the prosecution was burdened to prove the corpus delicti which
consists of two things: first, the criminal act and second, defendant’s agency in the
commission of the act. Wharton says that corpus delicti includes two things: first,
the objective; second, the subjective element of crimes. In homicide (by dolo) and
in murder cases, the prosecution is burdened to prove: (a) the death of the party
alleged to be dead; (b) that the death was produced by the criminal act of some
other than the deceased and was not the result of accident, natural cause or
suicide; and (c) that defendant committed the criminal act or was in some way
criminally responsible for the act which produced the death. To prove the felony of
homicide or murder, there must be incontrovertible evidence, direct or
circumstantial, that the victim was deliberately killed (with malice); in other words,
that there was intent to kill. Such evidence may consist inter alia in the use of
weapons by the malefactors, the nature, location and number of wounds sustained
by the victim and the words uttered by the malefactors before, at the time or
immediately after the killing of the victim. If the victim dies because of a deliberate
act of the malefactor, intent to kill is conclusively presumed.[34]

Insofar as the civil aspect of the case is concerned, the prosecution or the private
complainant is burdened to adduce preponderance of evidence or superior weight of
evidence. Although the evidence adduced by the plaintiff is stronger than that
presented by the defendant, he is not entitled to a judgment if his evidence is not
sufficient to sustain his cause of action. The plaintiff must rely on the strength of
his own evidence and not upon the weakness of that of the defendants’.[35]

Section 1, Rule 133 of the Revised Rules of Evidence provides how preponderance
of evidence is determined:

Section 1. Preponderance of evidence, how determined. – In civil cases, the party

having the burden of proof must establish his case by a preponderance of
evidence. In determining where the preponderance or superior weight of evidence
on the issues involved lies, the court may consider all the facts and circumstance of
the case, the witnesses’ manner of testifying, their intelligence, their means and
opportunity of knowing the facts to which they are testifying, the nature of the facts
to which they testify, the probability of their testimony, their interest or want of
interest, and also their personal credibility so far as the same may legitimately
appear upon the trial. The court may also consider the number of witnesses,
though the preponderance is not necessarily with the greater number.[36]

In the present case, we rule that, as held by the trial court and the CA, the
prosecution failed to adduce preponderant evidence to prove the facts on which the
civil liability of the respondents rest, i.e., that the petitioner has a cause of action
against the respondents for damages.

It bears stressing that the prosecution relied solely on the collective testimonies of
Garcia, who was not an eyewitness, and Dr. Aguda.
We agree with the petitioner that, as evidenced by the Necropsy Report of Dr.
Dominic Aguda, the deceased sustained a 14x7-centimeter hematoma on the
scalp. But as to how the deceased sustained the injury, Dr. Aguda was
equivocal. He presented two possibilities: (a) that the deceased could have been
hit by a blunt object or instrument applied with full force; or (b) the deceased could
have slipped, fell hard and his head hit a hard object:

COURT:

The Court would ask questions.

Q So it is possible that the injury, that is – the hematoma, caused on the back of
the head might be due to the victim’s falling on his back and his head hitting a
pavement?
A Well, the 14x7-centimeter hematoma is quite extensive, so if the fall is strong
enough and would fall from a high place and hit a concrete pavement, then it is
possible.

Q Is it possible that if the victim slipped on a concrete pavement and the head hit
the pavement, the injury might be caused by that slipping?
A It is also possible.

Q So when the victim was submerged under water while unconscious, it is

possible that he might have taken in some mud or what?
A Yes, Sir.

Q So it is your finding that the victim was submerged while still breathing?
A Yes, Your Honor, considering that the finding on the lung also would indicate
that the victim was still alive when he was placed under water.[37]

The doctor also admitted that the abrasion on the right side of the victim’s face
could have been caused by rubbing against a concrete wall or pavement:

Q The abrasion 4x3 centimeters on the right [side of the] face, would it be caused
by the face rubbing against a concrete wall or pavement?
A Yes, Sir. Abrasion is usually caused by a contact of a skin to a rough surface.

Q Rough surface?
A Yes, Your Honor.

Q When you say that the trachea region was full of mud, were there no signs that
the victim was strangled?
A There was no sign of strangulation, Your Honor.[38]
The trial court gave credence to the testimony of Dr. Aguda that the deceased
might have slipped, causing the latter to fall hard and hit his head on the
pavement, thus:

Q Could it be possible, Doctor, that this injury might have been caused when the
victim fell down and that portion of the body or occipital portion hit a blunt object
and might have been inflicted as a result of falling down?
A If the fall … if the victim fell and he hit a hard object, well, it is also possible.[39]

The trial court took into account the following facts:

Again, it could be seen from the pictures presented by the prosecution that there
were stones inside the culvert. (See Exhibit “D” to “D-3”). The stones could have
caused the victim to slip and hit his head on the pavement. Since there was water
on the culvert, the portion soaked with water must be very slippery, aside from the
fact that the culvert is round. If the victim hit his head and lost consciousness, he
will naturally take in some amount of water and drown.[40]

The CA affirmed on appeal the findings of the trial court, as well as its conclusion
based on the said findings.

We agree with the trial and appellate courts. The general rule is that the findings of
facts of the trial court, its assessment of probative weight of the evidence of the
parties, and its conclusion anchored on such findings, affirmed no less by the CA,
are given conclusive effect by this Court, unless the trial court ignored, misapplied
or misconstrued cogent facts and circumstances which, if considered, would change
the outcome of the case. The petitioner failed to show any justification to warrant a
reversal of the findings or conclusions of the trial and appellate courts.

That the deceased fell or slipped cannot be totally foreclosed because even Garcia
testified that the drainage culvert was dark, and that he himself was so afraid that
he refused to join respondents Andres and Pacheco inside.[41] Respondent Andres
had no flashlight; only respondent Pacheco had one.

Moreover, Dr. Aguda failed to testify and explain what might have caused the
abrasion on the left forearm of the deceased. He, likewise, failed to testify whether
the abrasions on the face and left forearm of the victim were made ante
mortem or post mortem.

The petitioner even failed to adduce preponderance of evidence that either or both
the respondents hit the deceased with a blunt object or instrument, and,
consequently, any blunt object or instrument that might have been used by any or
both of the respondents in hitting the deceased.

It is of judicial notice that nowadays persons have killed or committed serious

crimes for no reason at all.[42] However, the absence of any ill-motive to kill the
deceased is relevant and admissible in evidence to prove that no violence was
perpetrated on the person of the deceased. In this case, the petitioner failed to
adduce proof of any ill-motive on the part of either respondent to kill the deceased
before or after the latter was invited to join them in fishing. Indeed, the petitioner
testified that respondent Andres used to go to their house and play with her son
before the latter’s death:

Q Do you know this Dante Andres personally?

A Not much but he used to go to our house and play with my son after going
from her mother who is gambling, Sir.

Q But you are acquainted with him, you know his face?
A Yes, Sir.

Q Will you please look around this courtroom and see if he is around?
A (Witness is pointing to Dante Andres, who is inside the courtroom.)[43]

When the petitioner’s son died inside the drainage culvert, it was respondent
Andres who brought out the deceased. He then informed the petitioner of her son’s
death. Even after informing the petitioner of the death of her son, respondent
Andres followed the petitioner on her way to the grassy area where the deceased
was:

Q Did not Dante Andres follow you?

A He went with me, Sir.

Q So when you went to the place where your son was lying, Dante Andres was
with you?
A No, Sir. When I was informed by Dante Andres that my son was there at the
culvert, I ran immediately. He [was] just left behind and he just followed, Sir.

Q So when you reached the place where your son was lying down, Dante Andres
also came or arrived?
A It was only when we boarded the jeep that he arrived, Sir.[44]

In sum, the petitioner failed to adduce preponderance of evidence to prove a cause

of action for damages based on the deliberate acts alleged in the Information.

IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for lack of merit. No
costs.

SO ORDERED.

[ G.R. No. 72964, January 07, 1998 ]

FILOMENO URBANO, PETITIONER, VS. HON. INTERMEDIATE
APPELLATE COURT AND PEOPLE OF THE PHILIPPINES,
RESPONDENTS.

GUTIERREZ, JR., J.:

This is a petition to review the decision of the then Intermediate Appellate Court
which affirmed the decision of the then Circuit Criminal Court of Dagupan City
finding petitioner Filomeno Urbano guilty beyond reasonable doubt of the crime of
homicide.

The records disclose the following facts of the case.

At about 8:00 o'clock in the morning of October 23, 1980, petitioner Filomeno
Urbano went to his ricefield at Barangay Anonang, San Fabian, Pangasinan located
at about 100 meters from the tobacco seedbed of Marcelo Javier. He found the
place where he stored his palay flooded with water coming from the irrigation canal
nearby which had overflowed. Urbano went to the elevated portion of the canal to
see what happened and there he saw Marcelo Javier and Emilio Erfe cutting grass.
He asked them who was responsible for the opening of the irrigation canal and
Javier admitted that he was the one. Urbano then got angry and demanded that
Javier pay for his soaked palay. A quarrel between them ensued. Urbano
unsheathed his bolo (about 2 feet long, including the handle, by 2 inches wide) and
hacked Javier hitting him on the right palm of his hand, which was used in parrying
the bolo hack. Javier who was then unarmed ran away from Urbano but was
overtaken by Urbano who hacked him again hitting Javier on the left leg with the
back portion of said bob, causing a swelling on said leg. When Urbano tried to hack
and inflict further injury, his daughter embraced and prevented him from again
hacking Javier.

Immediately thereafter, Antonio Erfe, Emilio Erfe, and Felipe Erfe brought Javier to
his house about 50 meters away from where the incident happened. Emilio then
went to the house of Barangay Captain Menardo Solwen but not finding him there,
Emilio looked for Barrio Councilman Felipe Solis instead. Upon the advice of Solis,
the Erfes together with Javier went to the police station of San Fabian to report the
incident. As suggested by Corporal Torio, Javier was brought to a physician. The
group went to Dr. Guillermo Padilla, rural health physician of San Fabian, who did
not attend to Javier but instead suggested that they go to Dr. Mario Meneses
because Padilla had no available medicine.
After Javier was treated by Dr. Meneses, he and his companions returned to Dr.
Guillermo Padilla who conducted a medico- legal examination. Dr. Padilla issued a
medico-legal certificate (Exhibit “C” dated September 28, 1981) which reads:
“TO WHOM IT MAY CONCERN:

“This is to certify that I have examined the wound of Marcelo Javier, 20 years of
age, married, residing at Barangay Anonang, San Fabian, Pangasinan on October
23, 1980 and found the following:

“1-Incised wound 2 inches in length at the upper portion of the lesser palmar
prominence, right.

“As to my observation the incapacitation is from (7-9) days period. This wound was
presented to me only for medico-legal examination, as it was already treated by the
other doctor, (p. 88, Original Records)

Upon the intercession of Councilman Solis, Urbano and Javier agreed to settle their
differences. Urbano promised to pay P700.00 for the medical expenses of Javier.
Hence, on October 27, 1980, the two accompanied by Solis appeared before the
San Fabian Police to formalize their amicable settlement. Patrolman Torio recorded
the event in the police blotter (Exhibit “A”), to wit:

“Entry Nr 599/27 Oct ‘80/1030H/ Re entry Nr 592 on page 257 both parties
appeared before this Station accompanied by Brgy Councilman Felipe Solis and
settled their case amicably, for they are neighbors and close relatives to each other.
Marcelo Javier accepted and granted forgiveness to Filomeno Urbano who shoulder
(sic) all the expenses in his medical treatment, and promising to him and to this
Office that this will never be repeated anymore and not to harbour any grudge
against each other.” (p. 87, Original Records.)

Urbano advanced P400.00 to Javier at the police station. On November 3, 1980, the
additional P300.00 was given to Javier at Urbano's house in the presence of
Barangay Captain Soliven.

At about 1:30 a.m. on November 14, 1980, Javier was rushed to the Nazareth
General Hospital in a very serious condition. When admitted to the hospital, Javier
had lockjaw and was having convulsions. Dr. Edmundo Exconde who personally
attended to Javier found that the latter's serious condition was caused by tetanus
toxin. He noticed the presence of a healing wound in Javier's palm which could have
been infected by tetanus.

On November 15, 1980 at exactly 4:18 p.m., Javier died in the hospital. The
medical findings of Dr. Exconde are as follows:

“Date Diagnosis
 11-14-80 ADMITTED due to trismus

adm. at DX: TETANUS

1:30 AM Still having frequent muscle spasm. With

#35, 421 difficulty opening his mouth.

1 1-15-80 Restless at times. Febrile

Referred. Novaldin 1 amp. inj. 1M. Sudden

cessation of respiration and HR after

muscular spasm. 02 inhalation

administered. Ambo bag resuscitation and

cardiac massage done but to no avail.

Pronounced dead by Dra. Cabugao at 4:18

P.M. PMC done and cadaver brought home by

relatives.” (p. 100. Original Records)

In an information dated April 10, 1981, Filomeno Urbano was charged with the
crime of homicide before the then Circuit Criminal Court of Dagupan City, Third
Judicial District.

Upon arraignment, Urbano pleaded “not guilty.” After trial, the trial court found
Urbano guilty as charged. He was sentenced to suffer an indeterminate prison term
of from TWELVE (12) YEARS of prision mayor, as minimum to SEVENTEEN (17)
years, FOUR (4) MONTHS and ONE (1) DAY of reclusion temporal, as maximum,
together with the accessories of the law, to indemnify the heirs of the victim,
Marcelo Javier, in the amount of P12,000.00 without subsidiary imprisonment in
case of insolvency, and to pay the costs. He was ordered confined at the New
Bilibid Prison, in Muntinlupa, Rizal upon finality of the decision, in view of the nature
of his penalty.

The then Intermediate Appellate Court affirmed the conviction of Urbano on appeal
but raised the award of indemnity to the heirs of the deceased to P30,000.00 with
costs against the appellant.

The appellant filed a motion for reconsideration and/or new trial. The motion for
new trial was based on an affidavit of Barangay Captain Menardo Soliven (Annex
“A”) which states:
“That in 1980. I was the barrio captain of Barrio Anonang, San Fabian, Pangasinan,
and up to the present having been re-elected to such position in the last barangay
elections on May 17, 1982;

“That sometime in the first week of November. 1980, there was a typhoon that
swept Pangasinan and other places of Central Luzon including San Fabian, a town of
said province;

“That during the typhoon, the sluice or control gates of the Bued- irrigation dam
which irrigates the ricefields of San Fabian were closed and/or controlled so much
so that water and its flow to the canals and ditches were regulated and reduced;

“That due to the locking of the sluice or control gates of the dam leading to the
canals and ditches which will bring water to the ricefields. the water in said canals
and ditches became shallow which was suitable for catching mudfishes;

“That after the storm, I conducted a personal survey in the area affected, with my
secretary Perfecto Jaravata;

“That on November 5, 1980, while I was conducting survey, 1 saw the late Marcelo
Javier catching fish in the shallow irrigation canals with some companions;

“That few days thereafter, or on November 15, 1980, 1 came to know that said
Marcelo Javier died of tetanus.” (p. 33, Rollo)

The motion was denied. Hence, this petition.

In a resolution dated July 16, 1986, we gave due course to the petition.

The case involves the application of Article 4 of the Revised Penal Code which
provides that “Criminal liability shall be incurred: (1) By any person committing a
felony (delito) although the wrongful act done be different from that which he
intended xxx.” Pursuant to this provision “an accused is criminally responsible for
acts committed by him in violation of law and for all the natural and logical
consequences resulting therefrom.” (People v. Cardenas, 56 SCRA 631)
The record is clear that Marcelo Javier was hacked by the petitioner who used a
bolo as a result of which Javier suffered a 2-inch incised wound on his right palm;
that on November 14, 1981 which was the 22nd day after the incident, Javier was
rushed to the hospital in a very serious condition and that on the following day,
November 15, 1981, he died from tetanus.

Under these circumstances, the lower courts ruled that Javier's death was the
natural and logical consequence of Urbano’s unlawful act. Hence, he was declared
responsible for Javier's death. Thus, the appellate court said:
“the claim of appellant that there was an efficient cause which supervened from the
time the deceased was wounded to the time of his death, which covers a period of
23 days does not deserve serious consideration. True, that the deceased did not die
right away from his wound, but the cause of his death was due to said wound which
was inflicted by the appellant. Said wound which was in the process of healing got
infected with tetanus which ultimately caused his death.

"Dr. Edmundo Exconde of the Nazareth General Hospital testified that the victim
suffered lockjaw because of the infection of the wound with tetanus. And there is no
other way by which he could be infected with tetanus except through the wound in
his palm (tsn., p. 78, Oct. 5, 1981). Consequently, the proximate cause of the
victim’s death was the wound which got infected with tetanus. And the settled rule
in this jurisdiction is that an accused is liable for all the consequences of his
unlawful act. (Article 4, par. 1, R.P.C.; People v. Red, CA 43 O.G. 5072; People v.
Cornel, 78 Phil. 418)

“Appellant's allegation that the proximate cause of the victim’s death was due to his
own negligence in going back to work without his wound being properly healed, and
lately, that he went to catch fish in dirty irrigation canals in the first week of
November, 1980, is an afterthought, and a desperate attempt by appellant to
wiggle out of the predicament he found himself in. If the wound had not yet healed,
it is impossible to conceive that the deceased would be reckless enough to work
with a disabled hand.” (pp. 20-21, Rollo)

The petitioner reiterates his position that the proximate cause of the death of
Marcelo Javier was due to his own negligence, that Dr. Mario Meneses found no
tetanus in the injury, and that Javier got infected with tetanus when after two
weeks he returned to his farm and tended his tobacco plants with his bare hands
exposing the wound to harmful elements like tetanus germs.

The evidence on record does not clearly show that the wound inflicted by Urbano
was infected with tetanus at the time of the infliction of the wound. The evidence
merely confirms that the wound, which was already healing at the time Javier
suffered the symptoms of the fatal ailment, somehow got infected with tetanus.
However, as to when the wound was infected is not clear from the record.

In Vda. de Bataclan, et al. v. Medina (102 Phil. 1 181), we adopted the following
definition of proximate cause:

xxx xxx xxx

“xxx A satisfactory definition of proximate cause is found in Volume 38, pages 695-
696 of American Jurisprudence, cited by plaintiffs-appellants in their brief. It is as
follows:

“*** ‘that cause, which, in natural and continuous sequence, unbroken by any
efficient intervening cause, produces the injury, and without which the result would
not have occurred.’ And more comprehensively, ‘the proximate legal cause is that
acting first and producing the injury, either immediately or by setting other events
in motion, all constituting a natural and continuous chain of events, each having a
close causal connection with its immediate predecessor, the final event in the chain
immediately effecting the injury as a natural and probable result of the cause which
first acted, under such circumstances that the person responsible for the first event
should, as an ordinarily prudent and intelligent person, have reasonable ground to
expect at the moment of his act or default that an injury to some person might
probably result therefrom.” (at pp. 185-186)

The issue, therefore, hinges on whether or not there was an efficient intervening
cause from the time Javier was wounded until his death which would exculpate
Urbano from any liability for Javier's death.

We look into the nature of tetanus —

"The incubation period of tetanus, i.e., the time between injury and the appearance
of unmistakable symptoms, ranges from 2 to 56 days. However, over 80 percent of
patients become symptomatic within 14 days. A short incubation period indicates
severe disease, and when symptoms occur within 2 or 3 days of injury, the
mortality rate approaches 100 percent.

“Nonspecific premonitory symptoms such as restlessness, irritability, and headache

are encountered occasionally, but the commonest presenting complaints are pain
and stiffness in the jaw, abdomen, or back and difficulty swallowing. As the disease
progresses, stiffness gives way to rigidity, and patients often complain of difficulty
opening their mouths. In fact, trismus is the commonest manifestation of tetanus
and is responsible for the familiar descriptive name of lockjaw. As more muscles are
involved, rigidity becomes generalized, and sustained contractions called risus
sardonicus. The intensity and sequence of muscle involvement is quite variable.
In a small proportion of patients, only local signs and symptoms develop in the
region of the injury. In the vast majority, however, most muscles are involved to
some degree, and the signs and symptoms encountered depend upon the major
muscle groups affected.

Reflex spasm usually occur within 24 to 72 hours of the first symptoms, an interval
referred to as the onset time. As in the case of the incubation period, a short onset
time is associated with a poor prognosis. Spasms are caused by sudden
intensification of afferent stimuli arising in the periphery, which increases rigidity
and causes simultaneous and excessive contraction of muscles and their
antagonists. Spasms may be both painful and dangerous. As the disease
progresses, minimal or inapparent stimuli produce more intense and longer-lasting
spasms with increasing frequency. Respiration may be impaired by laryngospasm or
tonic contraction of respiratory muscles which prevent adequate ventilation.
Hypoxia may then lead to irreversible central nervous system damage and death.
Mild tetanus is characterized by an incubation period of at least 14 days and an
onset time of more than 6 days. Trismus is usually present, but dysphagia is
absent and generalized spasms are brief and mild. Moderately severe tetanus has a
somewhat shorter incubation period and onset time; trismus is marked, dysphagia
and generalized rigidity are present, but ventilation remains adequate even during
spasms. The criteria for severe tetanus include a short incubation time, and an
onset time of 72 hrs,, or less, severe trismus, dysphagia and rigidity and frequent
prolonged, generalized convulsive spasms. (Harrison's Principle of Internal
Medicine, 1983 Edition, pp. 1004-1005; Italics supplied)
Therefore, medically speaking, the reaction to tetanus found inside a man's-body
depends on the incubation period of the disease.

In the case at bar. Javier suffered a 2-inch incised wound on his right palm when he
parried the bolo which Urbano used in hacking him. This incident took place on
October 23, 1980. After 22 days, or on November 14, 1980, he suffered the
symptoms of tetanus, like lockjaw and muscle spasms. The following day,
November 15, 1980, he died.

If, therefore, the wound of Javier inflicted by the appellant was already infected by
tetanus germs at the time, it is more medically probable that Javier should have
been infected with only a mild case of tetanus because the symptoms of tetanus
appeared on the 22nd day after the hacking incident or more than 14 days after the
infliction of the wound. Therefore, the onset time should have been more than six
days. Javier, however, died on the second day from the onset time. The more
credible conclusion is that at the time Javier's wound was inflicted by the appellant,
the severe form of tetanus that killed him was not yet present. Consequently,
Javier's wound could have been infected with tetanus after the hacking incident.
Considering the circumstances surrounding Javier's death, his wound could have
been infected by tetanus 2 or 3 or a few but not 20 to 22 days before he died.

The rule is that the death of the victim must be the direct, natural, and logical-
consequence of the wounds inflicted upon him by the accused. (People v. Cardenas,
supra) And since we are dealing with a criminal conviction, the proof that the
accused caused the victim's-death must convince a rational mind beyond
reasonable doubt. The medical findings, however, lead us to a distinct possibility
that the infection of the wound by tetanus was an efficient intervening cause later
or between the time Javier was wounded to the time of his death. The infection
was, therefore, distinct and foreign to the crime. (People v. Rellin, 77 Phil. 1038).

Doubts are present. There is a likelihood that the wound was but the remote cause
and its subsequent infection, for failure to take necessary precautions, with tetanus
may have been the proximate cause of Javier's death with which the petitioner had
nothing to do. As we ruled in Manila Electric Co. v. Remoquillo, et al. (99 Phil. 1
18):

“’A prior and remote cause cannot be made the basis of an action if such remote
cause did nothing more than furnish the condition or give rise to the occasion by
which the injury was made possible, if there intervened between such prior or
remote cause and the injury a distinct, successive, unrelated, and efficient cause of
the injury, even though such injury would not have happened but for such condition
or occasion. If no danger existed in the condition except because of the
independent cause, such condition was not the proximate cause. And if an
independent negligent act or defective condition sets into operation the
circumstances, which result in injury because of the prior defective condition, such
subsequent act or condition is the proximate cause.’ (45 C.J. pp. 931 -93.2).”(at p.
125)

It strains the judicial mind to allow a clear aggressor to go scot free of criminal
liability. At the very least, the records show he is guilty of inflicting slight physical
injuries. However, the petitioner's criminal liability in this respect was wiped out by
the victim's own act. After the hacking incident, Urbano and Javier used the
facilities of barangay mediators to effect a compromise agreement where Javier
forgave Urbano while Urbano defrayed the medical expenses of Javier. This
settlement of minor offenses is allowed under the express provisions of Presidential
Decree No. 1508, Section 2(3). (See also People v. Caruncho, 127 SCRA 16)

We must stress, however, that our discussion of proximate cause and remote cause
is limited to the criminal aspects of this rather unusual case. It does not necessarily
follow that the petitioner is also free of civil liability. The well-settled doctrine is that
a person, while not criminally liable, may still be civilly liable. Thus, in the recent
case of People v. Rogelio Ligon y Tria, et al. (G.R. No. 74041, July 29, 1987), we
said:

“xxx While the guilt of the accused in a criminal prosecution must be established
beyond reasonable doubt, only a preponderance of evidence is required in a civil
action for damages. (Article 29, Civil Code). The judgment of acquittal extinguishes
the civil liability of the accused only when it includes a declaration that the facts
from which the civil liability might arise did not exist. (Padilla v. Court of
Appeals, 129 SCRA 559)

“The reason for the provisions of Article 29 of the Civil Code, which provides that
the acquittal of the accused on the ground that his guilt has not been proved
beyond reasonable doubt does not necessarily exempt him from civil liability for the
same act or omission, has been explained by the Code Commission as follows:

“’The old rule that the acquittal of the accused in a criminal case also releases him
from civil liability is one of the most serious flaws in the Philippine legal system. It
has given rise to numberless instances of miscarriage of justice, where the acquittal
was due to a reasonable doubt in the mind of the court as to the guilt of the
accused. The reasoning followed is that inasmuch as the civil responsibility is
derived from the criminal offense, when the latter is not proved, civil liability cannot
be demanded.

“’This is one of those cases where confused thinking leads to unfortunate and
deplorable consequences. Such reasoning fails to draw a clear line of demarcation
between criminal liability and civil responsibility, and to determine the logical result
of the distinction. The two liabilities are separate and distinct from each other. One
affects the social order and the other, private rights. One is for the punishment or
correction of the offender while the other is for reparation of damages suffered by
the aggrieved party. The two responsibilities are so different from each other that
Article 1813 of the present (Spanish) Civil Code reads thus: ‘There may be a
compromise upon the civil action arising from a crime; but the public action for the
imposition of the legal penalty shall not thereby be extinguished.’ It is just and
proper that, for the purposes of the imprisonment of or fine upon the accused, the
offense should be proved beyond reasonable doubt. But for the purpose of
indemnifying the complaining party, why should the offense also be proved beyond
reasonable doubt? Is not the invasion or violation of every private right to be
proved only by a preponderance of evidence? Is the right of the aggrieved person
any less private because the wrongful act is also punishable by the criminal law?

“’For these reasons, the Commission recommends the adoption of the reform under
discussion. It will correct a serious defect in our law. It will close up an
inexhaustible source of injustice — a cause for disillusionment on the part of the
innumerable persons injured or wronged.’”

The respondent court increased the P12,000.00 indemnification imposed by the trial
court to P30,000.00. However, since the 'indemnification was based solely on the
finding of guilt beyond reasonable doubt in the homicide case, the civil liability of
the petitioner was not thoroughly examined. This aspect of the case calls for fuller
development if the heirs of the victim are so minded.

WHEREFORE, the instant petition is hereby GRANTED. The questioned decision of

the then Intermediate Appellate Court, now Court of Appeals, is REVERSED and SET
ASIDE. The petitioner is ACQUITTED of the crime of homicide. Costs de oficio.

SO ORDERED.

[ G.R. No. 103119, October 21, 1992 ]

SULPICIO INTOD, PETITIONER, VS. HONORABLE COURT OF
APPEALS AND PEOPLE OF THE PHILIPPINES, RESPONDENTS.
 DECISION

CAMPOS, JR., J.:

Petitioner, Sulpicio Intod, filed this petition for review of the decision of the Court of
Appeals[1] affirming in toto the judgment of the Regional Trial Court, Branch XIV,
Oroquieta City, finding him guilty of the crime of attempted murder.

From the records, we gathered the following facts.

In the morning of February 4, 1979, Sulpicio Intod, Jorge Pangasian, Santos Tubio
and Avelino Daligdig went to Salvador Mandaya’s house in Katugasan, Lopez Jaena,
Misamis Occidental and asked him to go with them to the house of Bernardina
Palangpangan. Thereafter, Mandaya and Intod, Pangasian, Tubio and Daligdig had a
meeting with Aniceto Dumalagan. He told Mandaya that he wanted Palangpangan
to be killed because of a land dispute between them and that Mandaya should
accompany the four (4) men, otherwise, he would also be killed.

At about 10:00 o'clock in the evening of the same day, Petitioner, Mandaya,
Pangasian, Tubio and Daligdig, all armed with firearms, arrived at Palangpangan's
house in Katugasan, Lopez Jaena, Misamis Occidental. At the instance of his
companions, Mandaya pointed the location of Palangpangan's bedroom. Thereafter,
Petitioner, Pangasian, Tubio and Daligdig fired at said room. It turned out;
however, that Palangpangan was in another City and her home was then occupied
by her son-in-law and his family. No one was in the room when the accused fired
the shots. No one was hit by the gun fire.

Petitioner and his companions were positively identified by witnesses. One witness
testified that before the five men left the premises, they shouted: “We will kill you
(the witness) and especially Bernardina Palangpangan and we will come back if
(sic) ‘you were not injured”.[2]

After trial, the Regional Trial Court convicted Intod of attempted murder. The Court
of Appeals affirmed in toto the trial court's decision. Hence this petition.

This petition questions the decision of the Regional Trial Court (RTC), as affirmed by
the Court of Appeals, holding that Petitioner was guilty of attempted murder.
Petitioner seeks from this Court a modification of the judgment by holding him
liable only for an impossible crime, citing Article 4(2) of the Revised Penal Code
which provides:

ART. 4(2). CRIMINAL RESPONSIBILITY. -- Criminal Responsibility shall be incurred:

xxx xxx xxx

2. By any person performing an act which would be an offense against persons or
property, were it not for the inherent impossibility of its accomplishment or on
account of the employment of inadequate or ineffectual means.

Petitioner contends that, Palangpangan's absence from her room on the night he
and his companions riddled it with bullets made the crime inherently impossible.

On the other hand, Respondent People of the Philippines argues that the crime was
not impossible. Instead, the facts were sufficient to constitute an attempt and to
convict Intod for attempted murder. Respondent alleged that there was intent.
Further, in its Comment to the Petition, respondent pointed out that:

x x x. The crime of murder was not consummated, not because of the inherent
impossibility of its accomplishment (Art. 4(2), Revised Penal Code), but due to a
cause or accident other than petitioner's and his co-accused's own spontaneous
desistance (Art. 3., ibid.) Palangpangan did not sleep at her house at that time. Had
it not been for this fact, the crime is possible, not impossible.[3]

Article 4, paragraph 2 is an innovation[4] of the Revised Penal Code. This seeks to

remedy the void in the Old Penal Code where:

x x x it was necessary that the execution of the act has been commenced, that the
person conceiving the idea should have set about doing the deed, employing
appropriate means in order that his intent might become a reality, and finally, that
the result or end contemplated shall have been physically possible. So long as these
conditions were not present, the law and the courts did not hold him criminally
liable.[5]

This legal doctrine left social interests entirely unprotected.[6] The Revised Penal
Code, inspired by the Positivist School, recognizes in the offender his
formidability,[7] and now penalizes an act which were it not aimed at something
quite impossible or carried out with means which prove inadequate, would
constitute a felony against person or against property.[8] The rationale of Article 4(2)
is to punish such criminal tendencies.[9]

Under this article, the act performed by the offender cannot produce an offense
against persons or property because: (1) the commission of the offense is
inherently impossible of accomplishment; or (2) the means employed is either (a)
inadequate or (b) ineffectual.[10]

That the offense cannot be produced because the commission of the offense is
inherently impossible of accomplishment is the focus of this petition. To be
impossible under this clause, the act intended by the offender must be by its nature
one impossible of accomplishment.[11] There must be either (1) legal impossibility, or
(2) physical impossibility of accomplishing the intended act[12] in order to qualify the
act as an impossible crime.
Legal impossibility occurs where the intended acts, even if completed, would not
amount to a crime.[13] Thus:

Legal impossibility would apply to those circumstances where (1) the motive, desire
and expectation is to perform an act in violation of the law; (2) there is intention to
perform the physical act; (3) there is a performance of the intended physical act;
and (4) the consequence resulting from the intended act does not amount to a
crime.[14]

The impossibility of killing a person already dead[15] falls in this category.

On the other hand, factual impossibility occurs when extraneous circumstances

unknown to the actor or beyond his control prevent the consummation of the
intended crime.[16] One example is the man who puts his hand in the coat pocket of
another with the intention to steal the latter's wallet and finds the pocket empty.[17]

The case at bar belongs to this category. Petitioner shoots the place where he
thought his victim would be, although in reality, the victim was not present in said
place and thus, the petitioner failed to accomplish his end.

One American case has facts almost exactly the same as this one. In People vs. Lee
Kong,[18] the accused, with intent to kill, aimed and fired at the spot where he
thought the police officer would be. It turned out, however, that the latter was in a
different place. The accused failed to hit him and to achieve his intent. The Court
convicted the accused of an attempt to kill. It held that:

The fact that the officer was not at the spot where the attacking party imagined
where he was, and where the bullet pierced the roof, renders it no less an attempt
to kill. It is well settled principle of criminal law in this country that where the
criminal result of an attempt is not accomplished simply because of an obstruction
in the way of the thing to be operated upon, and these facts are unknown to the
aggressor at the time, the criminal attempt is committed.

In the case of Stokes vs. State,[19] where the accused failed to accomplish his intent
to kill the victim because the latter did not pass by the place where he was lying-in
wait, the court held him liable for attempted murder. The court explained that:

It was no fault of Stokes that the crime was not committed. x x x It only became
impossible by reason of the extraneous circumstance that Lane did not go that way;
and further, that he was arrested and prevented from committing the murder. This
rule of the law has application only where it is inherently impossible to commit the
crime. It has no application to a case where it becomes impossible for the crime to
be committed, either by outside interference or because of miscalculation as to a
supposed opportunity to commit the crime which fails to materialize; in short it has
no application to the case when the impossibility grows out of extraneous acts not
within the control of the party.
In the case of Clark vs. State,[20] the court held defendant liable for attempted
robbery even if there was nothing to rob. In disposing of the case, the court quoted
Mr. Justice Bishop, to wit:

It being an accepted truth that defendant deserves punishment by reason of his

criminal intent, no one can seriously doubt that the protection of the public requires
the punishment to be administered, equally whether in the unseen depths of the
pocket, etc., what was supposed to exist was really present or not. The community
suffers from the mere alarm of crime. Again: ‘Where the thing intended
(attempted) as a crime and what is done is a sort to create alarm, in other words,
excite apprehension that the evil intention will be carried out, the incipient act
which the law of attempt takes cognizance of is in reason committed.

In State vs. Mitchell,[21] defendant, with intent to kill, fired at the window of victim's
room thinking that the latter was inside. However, at that moment, the victim was
in another part of the house. The court convicted the accused of attempted murder.

The aforecited cases are the same cases which have been relied upon by
Respondent to make this Court sustain the judgment of attempted murder against
Petitioner. However, we cannot rely upon these decisions to resolve the issue at
hand. There is a difference between the Philippine and the American laws regarding
the concept and appreciation of impossible crimes.

In the Philippines, the Revised Penal Code, in Article 4(2), expressly provided for
impossible crimes and made them punishable. Whereas, in the United States, the
Code of Crimes and Criminal Procedure is silent regarding this matter. What it
provided for were attempts of the crimes enumerated in the said Code.
Furthermore, in said jurisdiction, the impossibility of committing the offense is
merely a defense to an attempt charge. In this regard, commentators and the cases
generally divide the impossibility defense into two categories: legal versus factual
impossibility.[22] In U.S. vs. Wilson[23] the Court held that:

x x x factual impossibility of the commission of the crime is not a defense. If the

crime could have been committed had the circumstances been as the defendant
believed them to be, it is no defense that in reality the crime was impossible of
commission.

Legal impossibility, on the other hand, is a defense which can be invoked to avoid
criminal liability for an attempt. In U.S. vs. Berrigan,[24] the accused was indicted for
attempting to smuggle letters into and out of prison. The law governing the matter
made the act criminal if done without the knowledge and consent of the warden. In
this case, the offender intended to send a letter without the latter's knowledge and
consent and the act was performed. However, unknown to him, the transmittal was
achieved with the warden's knowledge and consent. The lower court held the
accused liable for attempt but the appellate court reversed. It held unacceptable
the contention of the state that “elimination of impossibility as a defense to a
charge of criminal attempt, as suggested by the Model Penal Code and the
proposed federal legislation, is consistent with the overwhelming modern view”. In
disposing of this contention, the Court held that the federal statutes did not contain
such provision, and thus, following the principle of legality, no person could be
criminally liable for an act which was not made criminal by law. Further, it said:

Congress has not yet enacted a law that provides that intent plus act plus conduct
constitutes the offense of attempt irrespective of legal impossibility until such time
as such legislative changes in the law take place, this court will not fashion a new
non-statutory law of criminal attempt.

To restate, in the United States, where the offense sought to be committed is

factually impossible of accomplishment, the offender cannot escape criminal
liability. He can be convicted of an attempt to commit the substantive crime where
the elements of attempt are satisfied. It appears, therefore, that the act is
penalized, not as an impossible crime, but as an attempt to commit a crime. On the
other hand, where the offense is legally impossible of accomplishment, the actor
cannot be held liable for any crime -- neither for an attempt nor for an impossible
crime. The only reason for this is that in American law, there is no such thing as an
impossible crime. Instead, it only recognizes impossibility as a defense to a crime
charge -- that is, attempt.

This is not true in the Philippines. In our jurisdiction, impossible crimes are
recognized. The impossibility of accomplishing the criminal intent is not merely a
defense, but an act penalized by itself. Furthermore, the phrase “inherent
impossibility” that is found in Article 4(2) of the Revised Penal Code makes no
distinction between factual or physical impossibility and legal impossibility. Ubi lex
non distinguit nec nos distinguere debemos.

The factual situation in the case at bar presents a physical impossibility which
rendered the intended crime impossible of accomplishment. And under Article 4,
paragraph 2 of the Revised Penal Code, such is sufficient to make the act an
impossible crime.

To uphold the contention of respondent that the offense was Attempted Murder
because the absence of Palangpangan was a supervening cause independent of the
actor's will, will render useless the provision in Article 4, which makes a person
criminally liable for an act “which would be an offense against persons or property,
were it not for the inherent impossibility of its accomplishment x x x”. In that case,
all circumstances which prevented the consummation of the offense will be treated
as an accident independent of the actor's will which is an element of attempted and
frustrated felonies.

WHEREFORE, PREMISES CONSIDERED, the petition is hereby GRANTED, the

decision of respondent Court of Appeals holding Petitioner guilty of Attempted
Murder is hereby MODIFIED. WE hereby hold Petitioner guilty of an impossible
crime as defined and penalized in Articles 4, paragraph 2, and 59 of the Revised
Penal Code, respectively. Having in mind the social danger and degree of criminality
shown by Petitioner, this Court sentences him to suffer the penalty of six (6)
months of arresto mayor, together with the accessory penalties provided by the
law, and to pay the costs.

SO ORDERED.

[ G.R. No. 162540, July 13, 2009 ]

GEMMA T. JACINTO, PETITIONER, VS. PEOPLE OF THE
PHILIPPINES, RESPONDENT.

DECISION

PERALTA, J.:

Before us is a petition for review on certiorari filed by petitioner Gemma T. Jacinto

seeking the reversal of the Decision[1] of the Court of Appeals (CA) in CA-G.R. CR
No. 23761 dated December 16, 2003, affirming petitioner's conviction of the crime
of Qualified Theft, and its Resolution[2] dated March 5, 2004 denying petitioner's
motion for reconsideration.

Petitioner, along with two other women, namely, Anita Busog de Valencia y Rivera
and Jacqueline Capitle, was charged before the Regional Trial Court (RTC) of
Caloocan City, Branch 131, with the crime of Qualified Theft, allegedly committed
as follows:

That on or about and sometime in the month of July 1997, in Kalookan City, Metro
Manila, and within the jurisdiction of this Honorable Court, the above-named
accused, conspiring together and mutually helping one another, being then all
employees of MEGA FOAM INTERNATIONAL INC., herein represented by JOSEPH
DYHENGCO Y CO, and as such had free access inside the aforesaid establishment,
with grave abuse of trust and confidence reposed upon them with intent to gain and
without the knowledge and consent of the owner thereof, did then and there
willfully, unlawfully and feloniously take, steal and deposited in their own account,
Banco De Oro Check No. 0132649 dated July 14, 1997 in the sum of P10,000.00,
representing payment made by customer Baby Aquino to the Mega Foam Int'l. Inc.
to the damage and prejudice of the latter in the aforesaid stated amount of
P10,000.00.

CONTRARY TO LAW.[3]

The prosecution's evidence, which both the RTC and the CA found to be more
credible, reveals the events that transpired to be as follows.

In the month of June 1997, Isabelita Aquino Milabo, also known as Baby Aquino,
handed petitioner Banco De Oro (BDO) Check Number 0132649 postdated July 14,
1997 in the amount of P10,000.00. The check was payment for Baby Aquino's
purchases from Mega Foam Int'l., Inc., and petitioner was then the collector of
Mega Foam. Somehow, the check was deposited in the Land Bank account of
Generoso Capitle, the husband of Jacqueline Capitle; the latter is the sister of
petitioner and the former pricing, merchandising and inventory clerk of Mega Foam.

Meanwhile, Rowena Ricablanca, another employee of Mega Foam, received a phone

call sometime in the middle of July from one of their customers, Jennifer Sanalila.
The customer wanted to know if she could issue checks payable to the account of
Mega Foam, instead of issuing the checks payable to CASH. Said customer had
apparently been instructed by Jacqueline Capitle to make check payments to Mega
Foam payable to CASH. Around that time, Ricablanca also received a phone call
from an employee of Land Bank, Valenzuela Branch, who was looking for Generoso
Capitle. The reason for the call was to inform Capitle that the subject BDO check
deposited in his account had been dishonored.

Ricablanca then phoned accused Anita Valencia, a former employee/collector of

Mega Foam, asking the latter to inform Jacqueline Capitle about the phone call from
Land Bank regarding the bounced check. Ricablanca explained that she had to call
and relay the message through Valencia, because the Capitles did not have a
phone; but they could be reached through Valencia, a neighbor and former co-
employee of Jacqueline Capitle at Mega Foam.

Valencia then told Ricablanca that the check came from Baby Aquino, and
instructed Ricablanca to ask Baby Aquino to replace the check with cash. Valencia
also told Ricablanca of a plan to take the cash and divide it equally into four: for
herself, Ricablanca, petitioner Jacinto and Jacqueline Capitle. Ricablanca, upon the
advise of Mega Foam's accountant, reported the matter to the owner of Mega
Foam, Joseph Dyhengco.

Thereafter, Joseph Dyhengco talked to Baby Aquino and was able to confirm that
the latter indeed handed petitioner a BDO check for P10,000.00 sometime in June
1997 as payment for her purchases from Mega Foam.[4] Baby Aquino further
testified that, sometime in July 1997, petitioner also called her on the phone to tell
her that the BDO check bounced.[5] Verification from company records showed that
petitioner never remitted the subject check to Mega Foam. However, Baby Aquino
said that she had already paid Mega Foam P10,000.00 cash in August 1997 as
replacement for the dishonored check.[6]

Generoso Capitle, presented as a hostile witness, admitted depositing the subject

BDO check in his bank account, but explained that the check came into his
possession when some unknown woman arrived at his house around the first week
of July 1997 to have the check rediscounted. He parted with his cash in exchange
for the check without even bothering to inquire into the identity of the woman or
her address. When he was informed by the bank that the check bounced, he merely
disregarded it as he didn't know where to find the woman who rediscounted the
check.
Meanwhile, Dyhengco filed a Complaint with the National Bureau of Investigation
(NBI) and worked out an entrapment operation with its agents. Ten pieces of
P1,000.00 bills provided by Dyhengco were marked and dusted with fluorescent
powder by the NBI. Thereafter, the bills were given to Ricablanca, who was tasked
to pretend that she was going along with Valencia's plan.

On August 15, 2007, Ricablanca and petitioner met at the latter's house. Petitioner,
who was then holding the bounced BDO check, handed over said check to
Ricablanca. They originally intended to proceed to Baby Aquino's place to have the
check replaced with cash, but the plan did not push through. However, they agreed
to meet again on August 21, 2007.

On the agreed date, Ricablanca again went to petitioner's house, where she met
petitioner and Jacqueline Capitle. Petitioner, her husband, and Ricablanca went to
the house of Anita Valencia; Jacqueline Capitle decided not to go with the group
because she decided to go shopping. It was only petitioner, her husband,
Ricablanca and Valencia who then boarded petitioner's jeep and went on to Baby
Aquino's factory. Only Ricablanca alighted from the jeep and entered the premises
of Baby Aquino, pretending that she was getting cash from Baby Aquino. However,
the cash she actually brought out from the premises was the P10,000.00 marked
money previously given to her by Dyhengco. Ricablanca divided the money and
upon returning to the jeep, gave P5,000.00 each to Valencia and petitioner.
Thereafter, petitioner and Valencia were arrested by NBI agents, who had been
watching the whole time.

Petitioner and Valencia were brought to the NBI office where the Forensic Chemist
found fluorescent powder on the palmar and dorsal aspects of both of their hands.
This showed that petitioner and Valencia handled the marked money. The NBI filed
a criminal case for qualified theft against the two and one Jane Doe who was later
identified as Jacqueline Capitle, the wife of Generoso Capitle.

The defense, on the other hand, denied having taken the subject check and
presented the following scenario.

Petitioner admitted that she was a collector for Mega Foam until she resigned on
June 30, 1997, but claimed that she had stopped collecting payments from Baby
Aquino for quite some time before her resignation from the company. She further
testified that, on the day of the arrest, Ricablanca came to her mother's house,
where she was staying at that time, and asked that she accompany her
(Ricablanca) to Baby Aquino's house. Since petitioner was going for a pre-natal
check-up at the Chinese General Hospital, Ricablanca decided to hitch a ride with
the former and her husband in their jeep going to Baby Aquino's place in Caloocan
City. She allegedly had no idea why Ricablanca asked them to wait in their jeep,
which they parked outside the house of Baby Aquino, and was very surprised when
Ricablanca placed the money on her lap and the NBI agents arrested them.

Anita Valencia also admitted that she was the cashier of Mega Foam until she
resigned on June 30, 1997. It was never part of her job to collect payments from
customers. According to her, on the morning of August 21, 1997, Ricablanca called
her up on the phone, asking if she (Valencia) could accompany her (Ricablanca) to
the house of Baby Aquino. Valencia claims that she agreed to do so, despite her
admission during cross-examination that she did not know where Baby Aquino
resided, as she had never been to said house. They then met at the house of
petitioner's mother, rode the jeep of petitioner and her husband, and proceeded to
Baby Aquino's place. When they arrived at said place, Ricablanca alighted, but
requested them to wait for her in the jeep. After ten minutes, Ricablanca came out
and, to her surprise, Ricablanca gave her money and so she even asked, "What is
this?" Then, the NBI agents arrested them.

The trial of the three accused went its usual course and, on October 4, 1999, the
RTC rendered its Decision, the dispositive portion of which reads:

WHEREFORE, in view of the foregoing, the Court finds accused Gemma Tubale
De Jacinto y Latosa, Anita Busog De Valencia y Rivera and Jacqueline
Capitle GUILTY beyond reasonable doubt of the crime of QUALIFIED THEFT and
each of them is hereby sentenced to suffer imprisonment of FIVE (5) YEARS,
FIVE (5) MONTHS AND ELEVEN (11) DAYS, as minimum, to SIX (6) YEARS,
EIGHT (8) MONTHS AND TWENTY (20) DAYS, as maximum.

SO ORDERED.[7]

The three appealed to the CA and, on December 16, 2003, a Decision was
promulgated, the dispositive portion of which reads, thus:

IN VIEW OF THE FOREGOING, the decision of the trial court is MODIFIED, in

that:

(a) the sentence against accused Gemma Jacinto stands;

(b) the sentence against accused Anita Valencia is reduced to 4 months arresto
mayor medium.
(c) The accused Jacqueline Capitle is acquitted.

SO ORDERED.

A Partial Motion for Reconsideration of the foregoing CA Decision was filed only for
petitioner Gemma Tubale Jacinto, but the same was denied per Resolution dated
March 5, 2004.

Hence, the present Petition for Review on Certiorari filed by petitioner alone,
assailing the Decision and Resolution of the CA. The issues raised in the petition are
as follows:

1. Whether or not petitioner can be convicted of a crime not charged in

the information;
 2. Whether or not a worthless check can be the object of theft; and

3. Whether or not the prosecution has proved petitioner's guilt beyond

reasonable doubt.[8]

The petition deserves considerable thought.

The prosecution tried to establish the following pieces of evidence to constitute the
elements of the crime of qualified theft defined under Article 308, in relation to
Article 310, both of the Revised Penal Code: (1) the taking of personal property - as
shown by the fact that petitioner, as collector for Mega Foam, did not remit the
customer's check payment to her employer and, instead, appropriated it for herself;
(2) said property belonged to another − the check belonged to Baby Aquino, as it
was her payment for purchases she made; (3) the taking was done with intent to
gain - this is presumed from the act of unlawful taking and further shown by the
fact that the check was deposited to the bank account of petitioner's brother-in-
law; (4) it was done without the owner's consent - petitioner hid the fact that she
had received the check payment from her employer's customer by not remitting the
check to the company; (5) it was accomplished without the use of violence or
intimidation against persons, nor of force upon things - the check was voluntarily
handed to petitioner by the customer, as she was known to be a collector for the
company; and (6) it was done with grave abuse of confidence - petitioner is
admittedly entrusted with the collection of payments from customers.

However, as may be gleaned from the aforementioned Articles of the Revised Penal
Code, the personal property subject of the theft must have some value, as
the intention of the accused is to gain from the thing stolen. This is further
bolstered by Article 309, where the law provides that the penalty to be imposed on
the accused is dependent on the value of the thing stolen.

In this case, petitioner unlawfully took the postdated check belonging to Mega
Foam, but the same was apparently without value, as it was subsequently
dishonored. Thus, the question arises on whether the crime of qualified theft was
actually produced.

The Court must resolve the issue in the negative.

Intod v. Court of Appeals[9] is highly instructive and applicable to the present case.
In Intod, the accused, intending to kill a person, peppered the latter's bedroom with
bullets, but since the intended victim was not home at the time, no harm came to
him. The trial court and the CA held Intod guilty of attempted murder. But upon
review by this Court, he was adjudged guilty only of an impossible crime as
defined and penalized in paragraph 2, Article 4, in relation to Article 59, both of the
Revised Penal Code, because of the factual impossibility of producing the crime.
Pertinent portions of said provisions read as follows:

Article 4(2). Criminal Responsibility. - Criminal responsibility shall be incurred:

xxxx

2. By any person performing an act which would be an offense against persons or

property, were it not for the inherent impossibility of its accomplishment or on
account of the employment of inadequate to ineffectual means. (emphasis supplied)

Article 59. Penalty to be imposed in case of failure to commit the crime because the
means employed or the aims sought are impossible. - When the person intending to
commit an offense has already performed the acts for the execution of the same
but nevertheless the crime was not produced by reason of the fact that the act
intended was by its nature one of impossible accomplishment or because the means
employed by such person are essentially inadequate to produce the result desired
by him, the court, having in mind the social danger and the degree of criminality
shown by the offender, shall impose upon him the penalty of arresto mayor or a
fine ranging from 200 to 500 pesos.

Thus, the requisites of an impossible crime are: (1) that the act performed would
be an offense against persons or property; (2) that the act was done with evil
intent; and (3) that its accomplishment was inherently impossible, or the means
employed was either inadequate or ineffectual. The aspect of the inherent
impossibility of accomplishing the intended crime under Article 4(2) of the Revised
Penal Code was further explained by the Court in Intod[10] in this wise:

Under this article, the act performed by the offender cannot produce an offense
against persons or property because: (1) the commission of the offense is
inherently impossible of accomplishment; or (2) the means employed is either (a)
inadequate or (b) ineffectual.

That the offense cannot be produced because the commission of the offense is
inherently impossible of accomplishment is the focus of this petition. To be
impossible under this clause, the act intended by the offender must be by its nature
one impossible of accomplishment. There must be either (1) legal impossibility, or
(2) physical impossibility of accomplishing the intended act in order to qualify the
act as an impossible crime.

Legal impossibility occurs where the intended acts, even if completed, would not
amount to a crime.

xxxx

The impossibility of killing a person already dead falls in this category.

On the other hand, factual impossibility occurs when extraneous circumstances

unknown to the actor or beyond his control prevent the consummation of the
intended crime. x x x [11]

In Intod, the Court went on to give an example of an offense that involved factual
impossibility, i.e., a man puts his hand in the coat pocket of another with the
intention to steal the latter's wallet, but gets nothing since the pocket is empty.

Herein petitioner's case is closely akin to the above example of factual impossibility
given in Intod. In this case, petitioner performed all the acts to consummate the
crime of qualified theft, which is a crime against property. Petitioner's evil intent
cannot be denied, as the mere act of unlawfully taking the check meant for Mega
Foam showed her intent to gain or be unjustly enriched. Were it not for the fact
that the check bounced, she would have received the face value thereof, which was
not rightfully hers. Therefore, it was only due to the extraneous circumstance of the
check being unfunded, a fact unknown to petitioner at the time, that prevented the
crime from being produced. The thing unlawfully taken by petitioner turned out to
be absolutely worthless, because the check was eventually dishonored, and Mega
Foam had received the cash to replace the value of said dishonored check.

The fact that petitioner was later entrapped receiving the P5,000.00 marked
money, which she thought was the cash replacement for the dishonored check, is of
no moment. The Court held in Valenzuela v. People[12] that under the definition of
theft in Article 308 of the Revised Penal Code, "there is only one operative act of
execution by the actor involved in theft ─ the taking of personal property of
another." Elucidating further, the Court held, thus:

x x x 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."

xxxx

x x x 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. x x x

xxxx

x x x 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. x x x

x x x Unlawful taking, which is the deprivation of one's personal property, is the

element which produces the felony in its consummated stage. x x x [13]

From the above discussion, there can be no question that as of the time that
petitioner took possession of the check meant for Mega Foam, she had
performed all the acts to consummate the crime of theft, had it not been
impossible of accomplishment in this case. The circumstance of petitioner
receiving the P5,000.00 cash as supposed replacement for the dishonored check
was no longer necessary for the consummation of the crime of qualified theft.
Obviously, the plan to convince Baby Aquino to give cash as replacement for the
check was hatched only after the check had been dishonored by the drawee bank.
Since the crime of theft is not a continuing offense, petitioner's act of receiving the
cash replacement should not be considered as a continuation of the theft. At most,
the fact that petitioner was caught receiving the marked money was merely
corroborating evidence to strengthen proof of her intent to gain.

Moreover, the fact that petitioner further planned to have the dishonored check
replaced with cash by its issuer is a different and separate fraudulent scheme.
Unfortunately, since said scheme was not included or covered by the allegations in
the Information, the Court cannot pronounce judgment on the accused; otherwise,
it would violate the due process clause of the Constitution. If at all, that fraudulent
scheme could have been another possible source of criminal liability.

IN VIEW OF THE FOREGOING, the petition is GRANTED. The Decision of the Court
of Appeals, dated December 16, 2003, and its Resolution dated March 5, 2004,
are MODIFIED. Petitioner Gemma T. Jacinto is found GUILTY of an IMPOSSIBLE
CRIME as defined and penalized in Articles 4, paragraph 2, and 59 of the Revised
Penal Code, respectively. Petitioner is sentenced to suffer the penalty of six (6)
months of arrresto mayor, and to pay the costs.

SO ORDERED.

Ynares-Santiago, (Chairperson), Chico-Nazario, Velasco, Jr., and Nachura, JJ.,

concur.

[ G. R. NO. 160188, June 21, 2007 ]

ARISTOTEL VALENZUELA Y NATIVIDAD, PETITIONER, VS.
PEOPLE OF THE PHILIPPINES AND HON. COURT OF APPEALS,
RESPONDENTS.

DECISION

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
decisions[1] 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 P12,090.00.[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 Decision[16] 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
brief[19] 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 P12,090.00 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.
Diño[27] 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,[36] mens 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. Adiao[53] 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. Batoon[73] 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 artículos 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 Codigo Penal
Español de 1995, the the crime of theft is now simply defined as '[e]l que, con
ánimo de lucro, Codigo Penal Español de 1995,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 Calén 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.

[ G.R. NO. 88724, April 03, 1990 ]

THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS.
CEILITO ORITA ALIAS "LITO," DEFENDANT-APPELLANT.

DECISION

MEDIALDEA, J.:

The accused, Ceilito Orita alias Lito, was charged with the crime of rape in Criminal
Case No. 83-031-B before the Regional Trial Court, Branch II, Borongan, Eastern
Samar. The information filed in the said case reads as follows (p. 47, Rollo):

"The undersigned Second Assistant Provincial Fiscal upon prior complaint under
oath by the offended party, accuses CEILITO ORITA alias LITO of the crime of Rape
committed as follows:

"That on March 20, 1983, at about 1:30 o'clock in the morning inside a boarding
house at Victoria St., Poblacion, Borongan, Eastern Samar, Philippines, and within
the jurisdiction of this Honorable Court, above?named accused with lewd designs
and by the use of a Batangas knife he conveniently provided himself for the
purpose and with threats and intimidation, did, then and there wilfully, unlawfully
and feloniously lay with and succeeded in having sexual intercourse with Cristina
S. Abayan against her will and without her consent.

"CONTRARY TO LAW."

Upon being arraigned, the accused entered the plea of not guilty to the offense
charged. After the witnesses for the People testified and the exhibits were formally
offered and admitted, the prosecution rested its case. Thereafter, the defense
opted not to present any exculpatory evidence and instead filed a Motion to
Dismiss. On August 5, 1985, the trial court rendered its decision, the dispositive
portion of which reads (pp. 59-60, Rollo):
"WHEREFORE, the Court being morally certain of the guilt of accused CEILITO
ORITA @ LITO, of the crime of Frustrated Rape (Art. 335, RPC), beyond
reasonable doubt, with the aggravating circumstances of dwelling and nightime
(sic) with no mitigating circumstance to offset the same, and considering the
provisions of the Indeterminate Sentence Law, imposes on accused an
imprisonment of TEN (10) YEARS and ONE (1) DAY, PRISION MAYOR, as minimum
to TWELVE (12) YEARS PRISION MAYOR, maximum; to indemnify CRISTINA S.
ABAYAN, the amount of Four Thousand (P4,000.00) pesos, without subsidiary
imprisonment in case of insolvency, and to pay costs.

"SO ORDERED."
Not satisfied with the decision, the accused appealed to the Court of Appeals. On
December 29, 1988, the Court of Appeals rendered its decision, the dispositive
portion of which reads (p. 102, Rollo):

"WHEREFORE, the trial court's judgment is hereby MODIFIED, and the appellant
found guilty of the crime of rape, and consequently, sentenced to suffer
imprisonment of reclusion perpetua and to indemnify the victim in the amount of
P30,000.00.

"SO ORDERED."
On January 11, 1989, the Court of Appeals issued a resolution setting aside its
December 29, 1988 decision and forwarded the case to this Court, considering the
provision of Section 9, paragraph 3 of Batas Pambansa Blg. 129 in conjunction with
Section 17, paragraph 3, subparagraph 1 of the Judiciary Act of 1948.

The antecedent facts as summarized in the People's brief are as follows (pp. 71-
75, Rollo):

"Complainant Cristina S. Abayan was a 19-year old freshman student at the St.
Joseph's College at Borongan, Eastern Samar. Appellant was a Philippine
Constabulary (PC) soldier.

“In the early morning of March 20, 1983, complainant arrived at her boarding
house. Her classmates had just brought her home from a party (p. 44, tsn, May
23, 1984). Shortly after her classmates had left, she knocked at the door of her
boarding house (p. 5, ibid). All of a sudden, somebody held her and poked a knife
to her neck. She then recognized appellant who was a frequent visitor of another
boarder (pp. 8-9, ibid).

“She pleaded with him to release her, but he ordered her to go upstairs with
him. Since the door which led to the first floor was locked from the inside,
appellant forced complainant to use the back door leading to the second floor (p.
77, ibid). With his left arm wrapped around her neck and his right hand poking a
'balisong' to her neck, appellant dragged complainant up the stairs (p.
14, ibid). When they reached the second floor, he commanded her to look for a
room. With the Batangas knife still poked to her neck, they entered complainant’s
room.

“Upon entering the room, appellant pushed complainant who hit her head on the
wall. With one hand holding the knife, appellant undressed himself. He then
ordered complainant to take off her clothes. Scared, she took off her T-shirt. Then
he pulled off her bra, pants and panty (p. 20, ibid).

“He ordered her to lie down on the floor and then mounted her. He made her hold
his penis and insert it in her vagina. She followed his order as he continued to poke
the knife to her. At said position, however, appellant could not fully penetrate
her. Only a portion of his penis entered her as she kept on moving (p. 23, ibid).

“Appellant then lay down on his back and commanded her to mount him. In this
position, only a small part again of his penis was inserted into her vagina. At this
stage, appellant had both his hands flat on the floor. Complainant thought of
escaping (p. 20, ibid).

“She dashed out to the next room and locked herself in. Appellant pursued her and
climbed the partition. When she saw him inside the room, she ran to another
room. Appellant again chased her. She fled to another room and jumped out
through a window (p. 27, ibid).

“Still naked, she darted to the municipal building, which was about eighteen meters
in front of the boarding house, and knocked on the door. When there was no
answer, she ran around the building and knocked on the back door. When the
policemen who were inside the building opened the door, they found complainant
naked sitting on the stairs crying. Pat. Donceras, the first policeman to see her,
took off his jacket and wrapped it around her. When they discovered what
happened, Pat. Donceras and two other policemen rushed to the boarding
house. They heard a sound at the second floor and saw somebody running
away. Due to darkness, they failed to apprehend appellant.

“Meanwhile, the policemen brought complainant to the Eastern Samar Provincial

Hospital where she was physically examined.

“Dr. Ma. Luisa Abude, the resident physician who examined complainant, issued a
Medical Certificate (Exhibit 'A') which states:

‘Physical Patient is fairly built, came in with loose clothing with no under-clothes; appears
Examination - in state of shock, per unambulatory.
‘PE Findings - Pertinent Findings only.

‘Neck - Circumscribed hematoma at Ant. neck.

‘Breast - Well developed, conical in shape with prominent nipples; linear abrasions below
(L) breast.

‘Back - Multiple pinpoint marks.

‘Extremities - Abrasions at (R) and (L) knees.

‘Vulva - No visible abrasions or marks at the perineal area or over the

vulva, errythematous (sic) areas noted surrounding vaginal orifice, tender; hymen
intact; no laceration fresh and old noted; examining finger can barely enter and
with difficulty; vaginal canal tight; no discharges noted.’”

As aforementioned, the trial court convicted the accused of frustrated rape.

In this appeal, the accused assigns the following errors:

1) The trial court erred in disregarding the substantial inconsistencies in the

testimonies of the witnesses; and

2) The trial court erred in declaring that the crime of frustrated rape was
committed by the accused.

The accused assails the testimonies of the victim and Pat. Donceras because they
"show remarkable and vital inconsistencies and its incredibility amounting to
fabrication and therefore casted doubt to its candor, truth and validity." (p.
33, Rollo)

A close scrutiny of the alleged inconsistencies revealed that they refer to trivial
inconsistencies which are not sufficient to blur or cast doubt on the witnesses’
straightforward attestations. Far from being badges of fabrication, the
inconsistencies in their testimonies may in fact be justifiably considered as
manifestations of truthfulness on material points. These little deviations also
confirm that the witnesses had not been rehearsed. The most candid witnesses
may make mistakes sometimes but such honest lapses do not necessarily impair
their intrinsic credibility (People v. Cabato, G.R. No. L-37400, April 15, 1988, 160
SCRA 98). Rather than discredit the testimonies of the prosecution witnesses,
discrepancies on minor details must be viewed as adding credence and veracity to
such spontaneous testimonies (Aportadera, et al. v. Court of Appeals, et al., G.R.
No. L-41358, March 16, 1988, 158 SCRA 695). As a matter of fact, complete
uniformity in details would be a strong indication of untruthfulness and lack of
spontaneity (People v. Bazar, G.R. No. L-41829, June 27, 1988, 162 SCRA
609). However, one of the alleged inconsistencies deserves a little discussion which
is, the testimony of the victim that the accused asked her to hold and guide his
penis in order to have carnal knowledge of her. According to the accused, this is
strange because "this is the only case where an aggressor's advances is being
helped-out by the victim in order that there will be a consumation of the act." (p.
34, Rollo). The allegation would have been meritorious had the testimony of the
victim ended there. The victim testified further that the accused was holding a
Batangas knife during the aggression. This is a material part of the victim's
testimony which the accused conveniently deleted.

We find no cogent reason to depart from the well-settled rule that the findings of
fact of the trial court on the credibility of witnesses should be accorded the highest
respect because it has the advantage of observing the demeanor of witnesses and
can discern if a witness is telling the truth (People v. Samson, G.R. No. 55520,
August 25, 1989). We quote with favor the trial court's finding regarding the
testimony of the victim (p. 56, Rollo):

"As correctly pointed out in the memorandum for the People, there is not much to
be desired as to the sincerity of the offended party in her testimony before the
court. Her answers to every question profounded (sic), under all circumstances,
are plain and straightforward. To the Court she was a picture of supplication
hungry and thirsty for the immediate vindication of the affront to her honor. It is
inculcated into the mind of the Court that the accused had wronged her; had
traversed illegally her honor."

When a woman testifies that she has been raped, she says in effect all that is
necessary to show that rape was committed provided her testimony is clear and
free from contradiction and her sincerity and candor, free from suspicion (People v.
Alfonso, G.R. No. 72573, August 31, 1987, 153 SCRA 487; People v. Alcid, G.R.
Nos. 66387-88, February 28, 1985, 135 SCRA 280; People v. Soterol, G.R. No.
53498, December 16, 1985, 140 SCRA 400). The victim in this case did not only
state that she was raped but she testified convincingly on how the rape was
committed. The victim's testimony from the time she knocked on the door of the
municipal building up to the time she was brought to the hospital was corroborated
by Pat. Donceras. Interpreting the findings as indicated in the medical certificate,
Dr. Reinerio Zamora (who was presented in view of the unavailability of Dr. Abude)
declared that the abrasions in the left and right knees, linear abrasions below the
left breast, multiple pinpoint marks, circumscribed hematoma at the anterior neck,
erythematous area surrounding the vaginal orifice and tender vulva, are conclusive
proof of struggle against force and violence exerted on the victim (pp. 52-
53, Rollo). The trial court even inspected the boarding house and was fully satisfied
that the narration of the scene of the incident and the conditions therein is true (p.
54, Rollo):

"x x x. The staircase leading to the first floor is in such a condition safe enough to
carry the weight of both accused and offended party without the slightest difficulty,
even in the manner as narrated. The partitions of every room were of strong
materials, securedly nailed, and would not give way even by hastily scaling the
same."

A little insight into human nature is of utmost value in judging rape complaints
(People v. Torio, et al., G. R. No. L-48731, December 21, 1983, 126 SCRA
265). Thus, the trial court added (p. 55, Rollo):

"x x x And the jump executed by the offended party from that balcony (opening) to
the ground which was correctly estimated to be less than eight (8) meters, will
perhaps occasion no injury to a frightened individual being pursued. Common
experience will tell us that in occasion of conflagration, especially occuring (sic) in
high buildings, many have been saved by jumping from some considerable heights
without being injured. How much more for a frightened barrio girl, like the
offended party to whom honor appears to be more valuable than her life or
limbs? Besides, the exposure of her private parts when she sought assistance from
authorities, as corroborated, is enough indication that something not ordinary
happened to her unless she is mentally deranged. Sadly, nothing was adduced to
show that she was out of her mind."

In a similar case (People v. Sambili, G.R. No. L-44408, September 30, 1982, 117
SCRA 312), We ruled that:

"What particularly imprints the badge of truth on her story is her having been
rendered entirely naked by appellant and that even in her nudity, she had to run
away from the latter and managed to gain sanctuary in a house owned by spouses
hardly known to her. All these acts she would not have done nor would these facts
have occurred unless she was sexually assaulted in the manner she narrated."

The accused questions also the failure of the prosecution to present other witnesses
to corroborate the allegations in the complaint and the non?presentation of the
medico-legal officer who actually examined the victim. Suffice it to say that it is up
to the prosecution to determine who should be presented as witnesses on the basis
of its own assessment of their necessity (Tugbang v. Court of Appeals, et al., G.R.
No. 56679, June 29, 1989; People v. Somera, G.R. No. 65589, May 31, 1989). As
for the non-presentation of the medico-legal officer who actually examined the
victim, the trial court stated that it was by agreement of the parties that another
physician testified inasmuch as the medico-legal officer was no longer
available. The accused did not bother to contradict this statement.

Summing up, the arguments raised by the accused as regards the first assignment
of error fall flat on its face. Some were not even substantiated and do not,
therefore, merit consideration. We are convinced that the accused is guilty of
rape. However, We believe the subject matter that really calls for discussion is
whether or not the accused's conviction for frustrated rape is proper. The trial
court was of the belief that there is no conclusive evidence of penetration of the
genital organ of the victim and thus convicted the accused of frustrated rape only.

The accused contends that there is no crime of frustrated rape. The Solicitor
General shares the same view.

Article 335 of the Revised Penal Code defines and enumerates the elements of the
crime of rape:

"ART. 335. When and how rape is committed. - Rape is committed by having
carnal knowledge of a woman under any of the following circumstances:

“1. By using force or intimidation;

“2. When the woman is deprived of reason or otherwise unconscious; and

“3. When the woman is under twelve years of age, even though neither of the
circumstances mentioned in the two next preceding paragraphs shall be present.

"xxx xxx xxx."

Carnal knowledge is defined as the act of a man in having sexual bodily connections
with a woman (Black's Law Dictionary, Fifth Edition, p. 193).

On the other hand, Article 6 of the same Code provides:

"ART. 6. Consummated, frustrated, and attempted felonies. - Consummated

felonies, as well as those which are frustrated and attempted, are punishable.

"A felony is consummated when all the elements necessary for its execution and
accomplishment are present; and it is frustrated when the offender performs all the
acts of execution which would produce the felony as a consequence but which,
nevertheless, do not produce it by reason of causes independent of the will of the
perpetrator.

"There is an attempt when the offender commences the commission of a felony

directly by overt acts, and does not perform all the acts of execution which should
produce the felony by reason of some cause or accident other than his own
spontaneous desistance."

Correlating these two provisions, there is no debate that the attempted and
consummated stages apply to the crime of rape. Our concern now is whether or
not the frustrated stage applies to the crime of rape.

The requisites of a frustrated felony are: (1) that the offender has performed all
the acts of execution which would produce the felony and (2) that the felony is not
produced due to causes independent of the perpetrator's will. In the leading case
of United States v. Eduave, 36 Phil. 209, 212, Justice Moreland set a distinction
between attempted and frustrated felonies which is readily understood even by law
students:

"x x x A crime cannot be held to be attempted unless the offender, after beginning
the commission of the crime by overt acts, is prevented, against his will, by some
outside cause from performing all of the acts which should produce the crime. In
other words, to be an attempted crime the purpose of the offender must be
thwarted by a foreign force or agency which intervenes and compels him to stop
prior to the moment when he has performed all of the acts which should produce
the crime as a consequence, which acts it is his intention to perform. If he has
performed all of the acts which should result in the consummation of the crime and
voluntarily desists from proceeding further, it can not be an attempt. The essential
element which distinguishes attempted from frustrated felony is that, in the latter,
there is no intervention of a foreign or extraneous cause or agency between the
beginning of the commission of the crime and the moment when all of the acts
have been performed which should result in the consummated crime; while in the
former there is such intervention and the offender does not arrive at the point of
performing all of the acts which should produce the crime. He is stopped short of
that point by some cause apart from his voluntary desistance."

Clearly, in the crime of rape, from the moment the offender has carnal knowledge
of his victim, he actually attains his purpose and, from that moment also all the
essential elements of the offense have been accomplished. Nothing more is left to
be done by the offender, because he has performed the last act necessary to
produce the crime. Thus, the felony is consummated. In a long line of
cases (People v. Oscar, 48 Phil. 527; People v. Hernandez, 49 Phil. 980; People v.
Royeras, G.R. No. L-31886, April 29, 1974, 56 SCRA 666; People v. Amores, G.R.
No. L-32996, August 21, 1974, 58 SCRA 505), We have set the uniform rule that
for the consummation of rape, perfect penetration is not essential. Any penetration
of the female organ by the male organ is sufficient. Entry of the labia or lips of the
female organ, without rupture of the hymen or laceration of the vagina is sufficient
to warrant conviction. Necessarily, rape is attempted if there is no penetration of
the female organ (People v. Tayaba, 62 Phil. 559; People v. Rabadan, et al., 53
Phil. 694; United States v. Garcia, 9 Phil. 434) because not all acts of execution was
performed. The offender merely commenced the commission of a felony directly by
overt acts. Taking into account the nature, elements and manner of execution of
the crime of rape and jurisprudence on the matter, it is hardly conceivable how the
frustrated stage in rape can ever be committed.

Of course, We are aware of our earlier pronouncement in the case of People v.

Eriñia, 50 Phil. 998 [1927] where We found the offender guilty of frustrated rape
there being no conclusive evidence of penetration of the genital organ of the
offended party. However, it appears that this is a "stray’ decision inasmuch as it
has not been reiterated in Our subsequent decisions. Likewise, We are aware of
Article 335 of the Revised Penal Code, as amended by Republic Act No. 2632 (dated
September 12, 1960) and Republic Act No. 4111 (dated March 29, 1965) which
provides, in its penultimate paragraph, for the penalty of death when the rape is
attempted or frustrated and a homicide is committed by reason or on the occasion
thereof. We are of the opinion that this particular provision on frustrated rape is a
dead provision. The Eriñia case, supra, might have prompted the law-making body
to include the crime of frustrated rape in the amendments introduced by said laws.

In concluding that there is no conclusive evidence of penetration of the genital

organ of the victim, the trial court relied on the testimony of Dr. Zamora when he
"categorically declared that the findings in the vulva does not give a concrete
disclosure of penetration. As a matter of fact, he tossed back to the offended party
the answer as to whether or not there actually was penetration." (p. 53, Rollo)
Furthermore, the trial court stated (p. 57, Rollo):

"x x x It cannot be insensible to the findings in the medical certificate (Exhibit ‘A’)
as interpreted by Dr. Reinerio Zamora and the equivocal declaration of the latter of
uncertainty whether there was penetration or not. It is true, and the Court is not
oblivious, that conviction for rape could proceed from the uncorroborated testimony
of the offended party and that a medical certificate is not necessary (People v.
Royeras, People v. Orteza, 6 SCRA 109, 113). But the citations the people relied
upon cannot be applicable to the instant case. The testimony of the offended party
is at variance with the medical certificate. As such, a very disturbing doubt has
surfaced in the mind of the court. It should be stressed that in cases of rape where
there is a positive testimony and a medical certificate, both should in all respect,
compliment each other, for otherwise to rely on the testimony alone in utter
disregard of the manifest variance in the medical certificate, would be productive of
mischievous results."

The alleged variance between the testimony of the victim and the medical
certificate does not exist. On the contrary, it is stated in the medical certificate that
the vulva was erythematous (which means marked by abnormal redness of the skin
due to capillary congestion, as in inflammation) and tender. It bears emphasis that
Dr. Zamora did not rule out penetration of the genital organ of the victim. He
merely testified that there was uncertainty whether or not there was
penetration. Anent this testimony, the victim positively testified that there was
penetration, even if only partially (pp. 302, 304, t.s.n., May 23, 1984):

"Q Was the penis inserted on your vagina?

"A It entered but only a portion of it."

xxx xxx xxx

"Q What do you mean when you said comply, or what act do you referred (sic) to,
when you said comply?

"A I inserted his penis into my vagina.

"Q And was it inserted?

"A Yes only a little."

The fact is that in a prosecution for rape, the accused may be convicted even on
the sole basis of the victim's testimony if credible (People v. Tabago, G.R. No.
69778, November 8, 1988, 167 SCRA 65; People v. Aragona, G.R. No. L-43752,
September 19, 1985, 138 SCRA 569; People v. Taduyo, G.R. Nos. L-37928-29,
September 29, 1987, 154 SCRA 349). Moreover, Dr. Zamora's testimony is merely
corroborative and is not an indispensable element in the prosecution of this case
(People v. Alfonso, supra).

Although the second assignment of error is meritorious, it will not tilt the scale in
favor of the accused because after a thorough review of the records, We find the
evidence sufficient to prove his guilt beyond reasonable doubt of the crime of
consummated rape.

Article 335, paragraph 3, of the Revised Penal Code provides that whenever the
crime of rape is committed with the use of a deadly weapon, the penalty shall be
reclusion perpetua to death. The trial court appreciated the aggravating
circumstances of dwelling and nighttime. Thus, the proper imposable penalty is
death. In view, however, of Article III, Section 19(1) of the 1987 Constitution and
Our ruling in People v. Millora, et al., G.R. Nos. L-38968-70, February 9, 1989, that
the cited Constitutional provision did not declare the abolition of the death penalty
but merely prohibits the imposition of the death penalty, the Court has since
February 2, 1987 not imposed the death penalty whenever it was called for under
the Revised Penal Code but instead reduced the same to reclusion perpetua (People
v. Solis, et al., G.R. Nos. 78732-33, February 14, 1990). Reclusion perpetua, being
a single indivisible penalty under Article 335, paragraph 3, is imposed regardless of
any mitigating or aggravating circumstances (in relation to Article 63, paragraph 1,
Revised Penal Code; see People v. Arizala, G.R. No. 59713, March 15, 1982, 112
SCRA 615; People v. Manzano, G.R. No. L-38449, November 25, 1982, 118 SCRA
705; People v. Ramirez, G.R. No. 70744, May 31, 1985, 136 SCRA 702).

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

SO ORDERED.

[ G.R. No. 129433, March 30, 2000 ]

PEOPLE OF THE PHILIPPINES, PLAINTIFF, VS. PRIMO
CAMPUHAN Y BELLO, ACCUSED.

DECISION

BELLOSILLO, J.:

On 3 April 1990 this Court in People v. Orita[1] finally did away with frustrated
rape[2] and allowed only attempted rape and consummated rape to remain in our
statute books. The instant case lurks at the threshold of another emasculation of
the stages of execution of rape by considering almost every attempt at sexual
violation of a woman as consummated rape, that is, if the contrary view were to be
adopted. The danger there is that that concept may send the wrong signal to every
roaming lothario, whenever the opportunity bares itself, to better intrude with
climactic gusto, sans any restraint, since after all any attempted fornication would
be considered consummated rape and punished as such. A mere strafing of the
citadel of passion would then be considered a deadly fait accompli, which is absurd.

In Orita we held that rape was consummated from the moment the offender had
carnal knowledge of the victim since by it he attained his objective. All the elements
of the offense were already present and nothing more was left for the offender to
do, having performed all the acts necessary to produce the crime and accomplish it.
We ruled then that perfect penetration was not essential; any penetration of the
female organ by the male organ, however slight, was sufficient. The Court further
held that entry of the labia or lips of the female organ, even without rupture of the
hymen or laceration of the vagina, was sufficient to warrant conviction for
consummated rape. We distinguished consummated rape from attempted rape
where there was no penetration of the female organ because not all acts of
execution were performed as the offender merely commenced the commission of a
felony directly by overt acts.[3] The inference that may be derived therefrom is that
complete or full penetration of the vagina is not required for rape to be
consummated. Any penetration, in whatever degree, is enough to raise the crime to
its consummated stage.

But the Court in Orita clarified the concept of penetration in rape by requiring entry
into the labia or lips of the female organ, even if there be no rupture of the hymen
or laceration of the vagina, to warrant a conviction for consummated rape. While
the entry of the penis into the lips of the female organ was considered synonymous
with mere touching of the external genitalia, e.g., labia majora, labia minora,
etc.,[4] the crucial doctrinal bottom line is that touching must be inextricably viewed
in light of, in relation to, or as an essential part of, the process of penile
penetration, and not just mere touching in the ordinary sense. In other words,
the touching must be tacked to the penetration itself. The importance of the
requirement of penetration, however slight, cannot be gainsaid because where
entry into the labia or the lips of the female genitalia has not been established, the
crime committed amounts merely to attempted rape.

Verily, this should be the indicium of the Court in determining whether rape has
been committed either in its attempted or in its consummated stage; otherwise, no
substantial distinction would exist between the two, despite the fact that penalty-
wise, this distinction, threadbare as it may seem, irrevocably spells the difference
between life and death for the accused - a reclusive life that is not
even perpetua but only temporal on one hand, and the ultimate extermination of
life on the other. And, arguing on another level, if the case at bar cannot be
deemed attempted but consummated rape, what then would constitute attempted
rape? Must our field of choice be thus limited only to consummated rape and acts of
lasciviousness since attempted rape would no longer be possible in light of the view
of those who disagree with this ponencia?

On 27 May 1997 Primo Campuhan y Bello was found guilty of statutory rape and
sentenced by the court a quo to the extreme penalty of death,[5] hence this case
before us on automatic review under Art. 335 of the Revised Penal Code as
amended by RA 7659.[6]

As may be culled from the evidence on record, on 25 April 1996, at around 4

o'clock in the afternoon, Ma. Corazon P. Pamintuan, mother of four (4)-year old
Crysthel Pamintuan, went down from the second floor of their house to prepare Milo
chocolate drinks for her two (2) children. At the ground floor she met Primo
Campuhan who was then busy filling small plastic bags with water to be frozen into
ice in the freezer located at the second floor. Primo was a helper of Conrado Plata
Jr., brother of Corazon. As Corazon was busy preparing the drinks, she heard one
of her daughters cry, "Ayo'ko, ayo'ko!"[7] prompting Corazon to rush upstairs.
Thereupon, she saw Primo Campuhan inside her children's room kneeling before
Crysthel whose pajamas or "jogging pants" and panty were already removed, while
his short pants were down to his knees.

According to Corazon, Primo was forcing his penis into Crysthel's vagina. Horrified,
she cursed the accused, "P - t - ng ina mo, anak ko iyan!" and boxed him several
times. He evaded her blows and pulled up his pants. He pushed Corazon aside
when she tried to block his path. Corazon then ran out and shouted for help thus
prompting her brother, a cousin and an uncle who were living within their
compound, to chase the accused.[8] Seconds later, Primo was apprehended by those
who answered Corazon's call for help. They held the accused at the back of their
compound until they were advised by their neighbors to call the barangay officials
instead of detaining him for his misdeed. Physical examination of the victim yielded
negative results. No evident sign of extra-genital physical injury was noted by the
medico-legal officer on Crysthel's body as her hymen was intact and its orifice was
only 0.5 cm. in diameter.

Primo Campuhan had only himself for a witness in his defense. He maintained his
innocence and assailed the charge as a mere scheme of Crysthel's mother who
allegedly harbored ill will against him for his refusal to run an errand for her.[9] He
asserted that in truth Crysthel was in a playing mood and wanted to ride on his
back when she suddenly pulled him down causing both of them to fall down on the
floor. It was in this fallen position that Corazon chanced upon them and became
hysterical. Corazon slapped him and accused him of raping her child. He got mad
but restrained himself from hitting back when he realized she was a woman.
Corazon called for help from her brothers to stop him as he ran down from the
second floor.

Vicente, Corazon's brother, timely responded to her call for help and accosted
Primo. Vicente punched him and threatened to kill him. Upon hearing the threat,
Primo immediately ran towards the house of Conrado Plata but Vicente followed him
there. Primo pleaded for a chance to explain as he reasoned out that the accusation
was not true. But Vicente kicked him instead. When Primo saw Vicente holding a
piece of lead pipe, Primo raised his hands and turned his back to avoid the blow. At
this moment, the relatives and neighbors of Vicente prevailed upon him to take
Primo to the barangay hall instead, and not to maul or possibly kill him.

Although Primo Campuhan insisted on his innocence, the trial court on 27 May 1997
found him guilty of statutory rape, sentenced him to the extreme penalty of death,
and ordered him to pay his victim P50,000.00 for moral damages, P25,000.00 for
exemplary damages, and the costs.
The accused Primo Campuhan seriously assails the credibility of Ma. Corazon
Pamintuan. He argues that her narration should not be given any weight or
credence since it was punctured with implausible statements and improbabilities so
inconsistent with human nature and experience. He claims that it was truly
inconceivable for him to commit the rape considering that Crysthel's younger sister
was also in the room playing while Corazon was just downstairs preparing Milo
drinks for her daughters. Their presence alone as possible eyewitnesses and the
fact that the episode happened within the family compound where a call for
assistance could easily be heard and responded to, would have been enough to
deter him from committing the crime. Besides, the door of the room was wide open
for anybody to see what could be taking place inside. Primo insists that it was
almost inconceivable that Corazon could give such a vivid description of the alleged
sexual contact when from where she stood she could not have possibly seen the
alleged touching of the sexual organs of the accused and his victim. He asserts that
the absence of any external signs of physical injuries or of penetration of Crysthel's
private parts more than bolsters his innocence.

In convicting the accused, the trial court relied quite heavily on the testimony of
Corazon that she saw Primo with his short pants down to his knees kneeling before
Crysthel whose pajamas and panty were supposedly "already removed" and that
Primo was "forcing his penis into Crysthel's vagina." The gravamen of the offense of
statutory rape is carnal knowledge of a woman below twelve (12), as provided in
Art. 335, par. (3), of the Revised Penal Code. Crysthel was only four (4) years old
when sexually molested, thus raising the penalty, from reclusion perpetua to death,
to the single indivisible penalty of death under RA 7659, Sec. 11, the offended
party being below seven (7) years old. We have said often enough that in
concluding that carnal knowledge took place, full penetration of the vaginal orifice is
not an essential ingredient, nor is the rupture of the hymen necessary; the mere
touching of the external genitalia by the penis capable of consummating the sexual
act is sufficient to constitute carnal knowledge.[10] But the act of touching should be
understood here as inherently part of the entry of the penis into the labias of the
female organ and not mere touching alone of the mons pubis or the pudendum.

In People v. De la Peña[11] we clarified that the decisions finding a case for rape
even if the attacker's penis merely touched the external portions of the female
genitalia were made in the context of the presence or existence of an erect penis
capable of full penetration. Where the accused failed to achieve an erection, had a
limp or flaccid penis, or an oversized penis which could not fit into the victim's
vagina, the Court nonetheless held that rape was consummated on the basis of the
victim's testimony that the accused repeatedly tried, but in vain, to insert his penis
into her vagina and in all likelihood reached the labia of her pudendum as the victim
felt his organ on the lips of her vulva,[12] or that the penis of the accused touched
the middle part of her vagina.[13] 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.[14] 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.[15] Jurisprudence dictates that
the labia majora must be entered for rape to be consummated,[16] 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.

Judicial depiction of consummated rape has not been confined to the oft-quoted
"touching of the female organ,"[17] but has also progressed into being described as
"the introduction of the male organ into the labia of the pudendum,"[18] or "the
bombardment of the drawbridge."[19] But, to our mind, the case at bar merely
constitutes a "shelling of the castle of orgasmic potency," or as earlier stated, a
"strafing of the citadel of passion."

A review of the records clearly discloses that the prosecution utterly failed to
discharge its onus of proving that Primo's penis was able to penetrate Crysthel's
vagina however slight. Even if we grant arguendo that Corazon witnessed Primo in
the act of sexually molesting her daughter, we seriously doubt the veracity of her
claim that she saw the inter-genital contact between Primo and Crysthel. When
asked what she saw upon entering her children's room Corazon plunged into saying
that she saw Primo poking his penis on the vagina of Crysthel without explaining
her relative position to them as to enable her to see clearly and sufficiently, in
automotive lingo, the contact point. It should be recalled that when Corazon
chanced upon Primo and Crysthel, the former was allegedly in a kneeling position,
which Corazon described thus:

Q How was Primo holding your daughter?

A: (The witness is demonstrating in such a way that the chest of the accused is pinning
down the victim, while his right hand is holding his penis and his left hand is spreading
the legs of the victim).

It can reasonably be drawn from the foregoing narration that Primo's kneeling
position rendered an unbridled observation impossible. Not even a vantage point
from the side of the accused and the victim would have provided Corazon an
unobstructed view of Primo's penis supposedly reaching Crysthel's external
genitalia, i.e., labia majora, labia minora, hymen, clitoris, etc., since the legs and
arms of Primo would have hidden his movements from Corazon's sight, not to
discount the fact that Primo's right hand was allegedly holding his penis thereby
blocking it from Corazon's view. It is the burden of the prosecution to
establish how Corazon could have seen the sexual contact and to shove her account
into the permissive sphere of credibility. It is not enough that she claims that she
saw what was done to her daughter. It is required that her claim be properly
demonstrated to inspire belief. The prosecution failed in this respect, thus we
cannot conclude without any taint of serious doubt that inter-genital contact was at
all achieved. To hold otherwise would be to resolve the doubt in favor of the
prosecution but to run roughshod over the constitutional right of the accused to be
presumed innocent.

Corazon insists that Primo did not restrain himself from pursuing his wicked
intention despite her timely appearance, thus giving her the opportunity to fully
witness his beastly act.

We are not persuaded. It is inconsistent with man's instinct of self-preservation to

remain where he is and persist in satisfying his lust even when he knows fully well
that his dastardly acts have already been discovered or witnessed by no less than
the mother of his victim. For, the normal behavior or reaction of Primo upon
learning of Corazon's presence would have been to pull his pants up to avoid being
caught literally with his pants down. The interval, although relatively short,
provided more than enough opportunity for Primo not only to desist from but even
to conceal his evil design.

What appears to be the basis of the conviction of the accused was Crysthel's
answer to the question of the court -

Q Did the penis of Primo touch your organ?

A: Yes, sir.

But when asked further whether his penis penetrated her organ, she readily said,
"No." Thus -
Q But did his penis penetrate your organ?

A: No, sir.[20]

This testimony alone should dissipate the mist of confusion that enshrouds the
question of whether rape in this case was consummated. It has foreclosed the
possibility of Primo's penis penetrating her vagina, however slight. Crysthel made a
categorical statement denying penetration,[21] obviously induced by a question
propounded to her who could not have been aware of the finer distinctions
between touching and penetration. Consequently, it is improper and unfair to attach
to this reply of a four (4)-year old child, whose vocabulary is yet as underdeveloped
as her sex and whose language is bereft of worldly sophistication, an adult
interpretation that because the penis of the accused touched her organ there was
sexual entry. Nor can it be deduced that in trying to penetrate the victim's organ
the penis of the accused touched the middle portion of her vagina and entered
the labia of her pudendum as the prosecution failed to establish sufficiently that
Primo made efforts to penetrate Crysthel.[22] Corazon did not say, nay, not even
hint that Primo's penis was erect or that he responded with an erection.[23] On the
contrary, Corazon even narrated that Primo had to hold his penis with his right
hand, thus showing that he had yet to attain an erection to be able to penetrate his
victim.

Antithetically, the possibility of Primo's penis having breached Crysthel's vagina is

belied by the child's own assertion that she resisted Primo's advances by putting
her legs close together;[24] consequently, she did not feel any intense pain but just
felt "not happy" about what Primo did to her.[25] Thus, she only shouted "Ayo'ko,
ayo'ko!" not "Aray ko, aray ko!" In cases where penetration was not fully
established, the Court had anchored its conclusion that rape nevertheless was
consummated on the victim's testimony that she felt pain, or the medico-legal
finding of discoloration in the inner lips of the vagina, or the labia minora was
already gaping with redness, or the hymenal tags were no longer visible.[26] None
was shown in this case. Although a child's testimony must be received with due
consideration on account of her tender age, the Court endeavors at the same time
to harness only what in her story appears to be true, acutely aware of the equally
guaranteed rights of the accused. Thus, we have to conclude that even on the basis
of the testimony of Crysthel alone the accused cannot be held liable for
consummated rape; worse, be sentenced to death.
Lastly, it is pertinent to mention the medico legal officer's finding in this case that
there were no external signs of physical injuries on complaining witness' body to
conclude from a medical perspective that penetration had taken place. As Dr. Aurea
P. Villena explained, although the absence of complete penetration of the hymen
does not negate the possibility of contact, she clarified that there was no medical
basis to hold that there was sexual contact between the accused and the victim.[27]

In cases of rape where there is a positive testimony and a medical certificate, both
should in all respects complement each other; otherwise, to rely on the testimonial
evidence alone, in utter disregard of the manifest variance in the medical
certificate, would be productive of unwarranted or even mischievous results. It is
necessary to carefully ascertain whether the penis of the accused in reality entered
the labial threshold of the female organ to accurately conclude that rape was
consummated. Failing in this, the thin line that separates attempted rape from
consummated rape will significantly disappear.

Under Art. 6, in relation to Art. 335, of the Revised Penal 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. All
the elements of attempted rape - and only of attempted rape - are present in the
instant case, hence, the accused should be punished only for it.

The penalty for attempted rape is two (2) degrees lower than the imposable penalty
of death for the offense charged, which is statutory rape of a minor below seven (7)
years. Two (2) degrees lower is reclusion temporal, the range of which is twelve
(12) years and one (1) day to twenty (20) years. Applying the Indeterminate
Sentence Law, and in the absence of any mitigating or aggravating circumstance,
the maximum of the penalty to be imposed upon the accused shall be taken from
the medium period of reclusion temporal, the range of which is fourteen (14) years,
eight (8) months and (1) day to seventeen (17) years and four (4) months, while
the minimum shall be taken from the penalty next lower in degree, which is prision
mayor, the range of which is from six (6) years and one (1) day to twelve (12)
years, in any of its periods.

WHEREFORE, the Decision of the court a quo finding accused PRIMO "SONNY"
CAMPUHAN Y BELLO guilty of statutory rape and sentencing him to death and to
pay damages is MODIFIED. He is instead found guilty of ATTEMPTED RAPE and
sentenced to an indeterminate prison term of eight (8) years four (4) months and
ten (10) days of prision mayor medium as minimum, to fourteen (14) years ten
(10) months and twenty (20) days of reclusion temporal medium as maximum.
Costs de oficio.
SO ORDERED.

[ G.R. No. 43530, August 03, 1935 ]

THE PEOPLE OF THE PHILIPPINE ISLANDS, PLAINTIFF AND
APPELLEE, VS. AURELIO LAMAHANG, DEFENDANT AND
APPELLANT.

DECISION

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 prisidn correctional and to
an additional penalty of ten years and one day of prisidn 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 Codej 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
desistahce pf 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.

"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 (action fin)
cannot exactly be ascertained, but the same must be inferred from the nature of
the acts executed {action 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 punishable 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 finalityto 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 m
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 f$e accused * * V Under the circumstances of thisicase the prohibition
of the owner or inmate is presumed. (U. S. vs. Ostrea^ 2 Phil., 93; U. S. vs.
SHvano, 31 Phil., 509 ^U. S'. vs. Ticson, 25 Phil., 67; U. S. vs. Mesina, 21 Phil.,
615; U. S. vs. VillanuevaTl8 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 correctional 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 two 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 accused1 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.

[ G.R. No. 93028, July 29, 1994 ]

PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS.
MARTIN SIMON Y SUNGA,* RESPONDENT.

DECISION

REGALADO, J.:

Herein accused-appellant Martin Simon y Sunga was charged on November 10, 1988
with a violation of Section 4, Article II of Republic Act No. 6425, as amended, otherwise
known as the Dangerous Drugs Act of 1972, under an indictment alleging that on or about
October 22, 1988, at Barangay Sto. Cristo, Guagua, Pampanga, he sold four tea bags of
marijuana to a Narcotics Command (NARCOM) poseur-buyer in consideration of the sum
of P40.00, which tea bags, when subjected to laboratory examination, were found positive
for marijuana.[1]
Eventually arraigned with the assistance of counsel on March 2, 1989, after his
rearrest following his escape from Camp Olivas, San Fernando, Pampanga where he was
temporarily detained,[2] he pleaded not guilty. He voluntarily waived his right to a pre-trial
conference,[3] after which trial on the merits ensued and was duly concluded.

The evidence on record shows that a confidential informant, later identified as a

NARCOM operative, informed the police unit at Camp Olivas, San Fernando, Pampanga,
of the illegal drug activities of a certain "Alyas Pusa" at Sto. Cristo, Guagua, Pampanga.
Capt. Francisco Bustamante, Commanding Officer of the 3rd Narcotics Regional Unit in
the camp, then formed a buy-bust team composed of Sgt. Buenaventura Lopez, Pfc.
Virgilio Villaruz and Sgt. Domingo Pejoro, all members of the same unit. After securing
marked money from Bustamante, the team, together with their informant, proceeded to
Sto. Cristo after they had coordinated with the police authorities and barangay officers
thereof. When they reached the place, the confidential informer pointed out appellant to
Lopez who consequently approached appellant and asked him if he had marijuana.
Appellant answered in the affirmative and Lopez offered to buy two tea bags. Appellant
then left and, upon returning shortly thereafter, handed to Lopez two marijuana tea bags
and Lopez gave him the marked money amounting to P40.00 as payment. Lopez then
scratched his head as a pre-arranged signal to his companions who were stationed
around ten to fifteen meters away, and the team closed in on them. Thereupon, Villaruz,
who was the head of the back-up team, arrested appellant. The latter was then brought
by the team to the 3rd Narcotics Regional Unit at Camp Olivas on board a jeep and he
was placed under custodial investigation, with Sgt. Pejoro as the investigator. [4]
Pfc. Villaruz corroborated Lopez' testimony, claiming that he saw the deal that
transpired between Lopez and the appellant. He also averred that he was the one who
confiscated the marijuana and took the marked money from appellant.[5]
Sgt. Domingo Pejoro, for his part, declared that although he was part of the buy-bust
team, he was stationed farthest from the rest of the other members, that is, around two
hundred meters away from his companions. He did not actually see the sale that
transpired between Lopez and appellant but he saw his teammates accosting appellant
after the latter's arrest. He was likewise the one who conducted the custodial investigation
of appellant wherein the latter was apprised of his rights to remain silent, to information
and to counsel. Appellant, however, orally waived his right to counsel.[6]
Pejoro also claimed having prepared Exhibit "G," the "Receipt of Property
Seized/Confiscated" which appellant signed, admitting therein the confiscation of four tea
bags of marijuana dried leaves in his possession. Pejoro likewise informed the court
below that, originally, what he placed on the receipt was that only one marijuana leaf was
confiscated in exchange for P20.00. However, Lopez and Villaruz corrected his entry by
telling him to put "two," instead of "one" and "40," instead of "20". He agreed to the
correction since they were the ones who were personally and directly involved in the
purchase of the marijuana and the arrest of appellant.[7]
Dr. Pedro S. Calara, a medical officer at Camp Olivas, examined appellant at 5:30
P.M. of the day after the latter's apprehension, and the results were practically normal
except for his relatively high blood pressure. The doctor also did not find any trace of
physical injury on the person of appellant. The next day, he again examined appellant
due to the latter's complaint of gastro-intestinal pain. In the course of the examination, Dr.
Calara discovered that appellant has a history of peptic ulcer, which causes him to
experience abdominal pain and consequently vomit blood. In the afternoon, appellant
came back with the same complaint but, except for the gastro-intestinal pain, his physical
condition remained normal.[8]
As expected, appellant tendered an antipodal version of the attendant facts, claiming
that on the day in question, at around 4:30 P.M., he was watching television with the
members of his family in their house when three persons, whom he had never met before
suddenly arrived. Relying on the assurance that they would just inquire about something
from him at their detachment, appellant boarded a jeep with them. He was told that they
were going to Camp Olivas, but he later noticed that they were taking a different route.
While on board, he was told that he was a pusher so he attempted to alight from the jeep
but he was handcuffed instead. When they finally reached the camp, he was ordered to
sign some papers and, when he refused, he was boxed in the stomach eight or nine times
by Sgt. Pejoro. He was then compelled to affix his signature and fingerprints on the
documents presented to him. He denied knowledge of the P20.00 or the dried marijuana
leaves, and insisted that the twenty-peso bill came from the pocket of Pejoro. Moreover,
the reason why he vomited blood was because of the blows he suffered at the hands of
Pejoro. He admitted having escaped from the NARCOM office but claimed that he did so
since he could no longer endure the maltreatment to which he was being subjected. After
escaping, he proceeded to the house of his uncle, Bienvenido Sunga, at San Matias,
Guagua, reaching the place at around 6:30 or 7:30 P.M. There, he consulted a quack
doctor and, later, he was accompanied by his sister to the Romana Pangan District
Hospital at Floridablanca, Pampanga where he was confined for three days. [9]
Appellant's brother, Norberto Simon, testified to the fact that appellant was
hospitalized at Floridablanca, Pampanga after undergoing abdominal pain and vomiting
of blood. He likewise confirmed that appellant had been suffering from peptic ulcer even
before the latter's arrest.[10] Also, Dr. Evelyn Gomez-Aguas, a resident physician of
Romana Pangan District Hospital, declared that she treated appellant for three days due
to abdominal pain, but her examination revealed that the cause for this ailment was
appellant's peptic ulcer. She did not see any sign of slight or serious external injury,
abrasion or contusion on his body.[11]
On December 4, 1989, after weighing the evidence presented, the trial court rendered
judgment convicting appellant for a violation of Section 4, Article II of Republic Act No.
6425, as amended, and sentencing him to suffer the penalty of life imprisonment, to pay
a fine of twenty thousand pesos and to pay the costs. The four tea bags of marijuana
dried leaves were likewise ordered confiscated in favor of the Government.[12]
Appellant now prays the Court to reverse the aforementioned judgment of the lower
court, contending in his assignment of errors that the latter erred in (1) not upholding his
defense of "frame-up," (2) not declaring Exhibit "G" (Receipt of Property
Seized/Confiscated) inadmissible in evidence, and (3) convicting him of a violation of the
Dangerous Drugs Act.[13]
At the outset, it should be noted that while the People's real theory and evidence is
to the effect that appellant actually sold only two tea bags of marijuana dried leaves, while
the other two tea bags were merely confiscated subsequently from his possession, [14] the
latter not being in any way connected with the sale, the information alleges that he sold
and delivered four tea bags of marijuana dried leaves. [15] In view thereof, the issue
presented for resolution in this appeal is merely the act of selling the two tea
bags allegedly committed by appellant, and does not include the disparate and distinct
issue of illegal possession of the other two tea bags which separate offense is not
charged herein.[16]
To sustain a conviction for selling prohibited drugs, the sale must be clearly and
unmistakably established.[17] To sell means to give, whether for money or any other
material consideration.[18] It must, therefore, be established beyond doubt that appellant
actually sold and delivered two tea bags of marijuana dried leaves to Sgt. Lopez, who
acted as the poseur-buyer, in exchange for two twenty-peso bills.
After an assiduous review and calibration of the evidence adduced by both parties,
we are morally certain that appellant was caught in flagrante delicto engaging in the illegal
sale of prohibited drugs. The prosecution was able to prove beyond a scintilla of doubt
that appellant, on October 22, 1988, did sell two tea bags of marijuana dried leaves to
Sgt. Lopez. The latter himself creditably testified as to how the sale took place and his
testimony was amply corroborated by his teammates. As between the straightforward,
positive and corroborated testimony of Lopez and the bare denials and negative
testimony of appellant, the former undeniably deserves greater weight and is more
entitled to credence.
FRAME UP?: We are aware that the practice of entrapping drug traffickers through
the utilization of poseur-buyers is susceptible to mistake, harassment, extortion and
abuse.[19] Nonetheless, such causes for judicial apprehension and doubt do not obtain in
the case at bar. Appellant's entrapment and arrest were not effected in a haphazard way,
for a surveillance was conducted by the team before the buy-bust operation was
effected.[20] No ill motive was or could be attributed to them, aside from the fact that they
are presumed to have regularly performed their official duty. [21] Such lack of dubious
motive coupled with the presumption of regularity in the performance of official duty, as
well, as the findings of the trial court on the credibility of witnesses, should prevail over
the self-serving and uncorroborated claim of appellant of having been framed, [22] erected
as it is upon the mere shifting sands of an alibi. To top it all, appellant was caught red-
handed delivering prohibited drugs, and while there was a delimited chance for him to
controvert the charge, he does not appear to have plausibly done so.
When the drug seized was submitted to the Crime Laboratory Service of the then
Philippine Constabulary-Integrated National Police (PC-INP) at Camp Olivas for
examination, P/Cpl. Marlyn Salangad, a forensic chemist therein, [23] confirmed in her
Technical Report No. NB-448-88 that the contents of the four tea bags confiscated from
appellant were positive for and had a total weight of 3.8 grams of marijuana.[24] Thus,
the corpus delicti of the crime had been fully proved with certainty and conclusiveness.[25]
Appellant would want to make capital of the alleged inconsistencies and
improbabilities in the testimonies of the prosecution witnesses. Foremost, according to
him, is the matter of who really confiscated the marijuana tea bags from him since, in
open court, Pejoro asserted that he had nothing to do with the confiscation of the
marijuana, but in the aforementioned "Receipt of Property Seized/Confiscated," he signed
it as the one who seized the same.[26]
Suffice it to say that whether it was Villaruz or Pejoro who confiscated the marijuana
will not really matter since such is not an element of the offense with which appellant is
charged. What is unmistakably clear is that the marijuana was confiscated from the
possession of appellant. Even, assuming arguendo that the prosecution committed an
error on who actually seized the marijuana from appellant, such an error or discrepancy
refers only to a minor matter and, as such, neither impairs the essential integrity of the
prosecution evidence as a whole nor reflects on the witnesses' honesty. [27] Besides, there
was clearly a mere imprecision of language since Pejoro obviously meant that he did not
take part in the physical taking of the drug from the person of appellant, but he
participated in the legal seizure or confiscation thereof as the investigator of their unit.
Next, appellant adduces the argument that the twenty-peso bills allegedly confiscated
from him were not powdered for finger-printing purposes contrary to the normal procedure
in buy-bust operations.[28] This omission has been satisfactorily explained by Pfc. Virgilio
Villaruz in his testimony, as follows:
"Q: Is it the standard operating procedure of your unit that in conducting such
operation you do not anymore provide a powder (sic) on the object so as to
determine the thumbmark or identity of the persons taking hold of the object?

A: We were not able to put powder on these denominations because we are lacking
that kind of material in our office since that item can be purchased only in Manila
and only few are producing that, sir.

xxx

Q: Is it not a fact that your office is within (the) P.C. Crime Laboratory, CIS, as
well as the office of NICA?

A: Our office is only adjacent to those offices but we cannot make a request for that
powder because they, themselves, are using that in their own work, sir."[29]

The foregoing explanation aside, we agree that the failure to mark the money bills
used for entrapment purposes can under no mode of rationalization be fatal to the case
of the prosecution because the Dangerous Drugs Act punishes "any person who, unless
authorized by law, shall sell, administer, deliver, give away to another, distribute, dispatch
in transit or transport any prohibited drug, or shall act as a broker in any of such
transactions."[30] The dusting of said bills with phosphorescent powder is only an
evidentiary technique for identification purposes, which identification can be supplied by
other species of evidence.
Again, appellant contends that there was neither a relative of his nor
any barangay official or civilian to witness the seizure. He decries the lack of pictures
taken before, during and after his arrest. Moreover, he was not reported to or booked in
the custody of any barangay official or police authorities.[31] These are absurd disputations.
No law or jurisprudence requires that an arrest or seizure, to be valid, be witnessed by a
relative, a barangay official or any other civilian, or be accompanied by the taking of
pictures. On the contrary, the police enforcers having caught appellant in flagrante delicto,
they were not only authorized but were also under the obligation to effect a warrantless
arrest and seizure.
Likewise, contrary to appellant's contention, there was an arrest report prepared by
the police in connection with his apprehension. Said Booking Sheet and Arrest
Report[32] states, inter alia, that "suspect was arrested for selling two tea bags of suspected
marijuana dried leaves and the confiscation of another two tea bags of suspected
marijuana dried leaves." Below these remarks was affixed appellant's signature. In the
same manner, the receipt for the seized property, hereinbefore mentioned, was signed
by appellant wherein he acknowledged the confiscation of the marked bills from him. [33]
However, we find and hereby declare the aforementioned exhibits inadmissible in
evidence. Appellant's conformance to these documents are declarations against interest
and tacit admissions of the crime charged. They were obtained in violation of his right as
a person under custodial investigation for the commission of an offense, there being
nothing in the records to show that he was assisted by counsel.[34] Although appellant
manifested during the custodial investigation that he waived his right to counsel, the
waiver was not made in writing and in the presence of counsel, [35] hence whatever
incriminatory admission or confession may be extracted from him, either verbally or in
writing, is not allowable in evidence.[36] Besides, the arrest report is self-serving and
hearsay and can easily be concocted to implicate a suspect.
Notwithstanding the objectionability of the aforesaid exhibits, appellant cannot
thereby be extricated from his predicament since his criminal participation in the illegal
sale of marijuana has been sufficiently proven. The commission of the offense of illegal
sale of prohibited drugs requires merely the consummation of the selling
transaction[37] which happens the moment the buyer receives the drug from the seller.[38] In
the present case, and in light of the preceding discussion, this sale has been ascertained
beyond any peradventure of doubt.
Appellant then asseverates that it is improbable that he would sell marijuana to a total
stranger.[39] We take this opportunity to once again reiterate the doctrinal rule that drug-
pushing, when done on a small scale as in this case, belongs to that class of crimes that
may be committed at any time and in any place.[40] It is not contrary to human experience
for a drug pusher to sell to a total stranger,[41] for what matters is not an existing familiarity
between the buyer and seller but their agreement and the acts constituting the sale and
delivery of the marijuana leaves.[42] While there may be instances where such sale could
be improbable, taking into consideration the diverse circumstances of person, time and
place, as well as the incredibility of how the accused supposedly acted on that occasion,
we can safely say that those exceptional particulars are not present in this case.
Finally, appellant contends that he was subjected to physical and mental torture by
the arresting officers which caused him to escape from Camp Olivas the night he was
placed under custody.[43] This he asserts to support his explanation as to how his
signatures on the documents earlier discussed were supposedly obtained by force and
coercion.
The doctrine is now too well embedded in our jurisprudence that for evidence to be
believed, it must not only proceed from the mouth of a credible witness but must be
credible in itself such as the common experience and observation of mankind can
approve as probable under the circumstances.[44] The evidence on record is bereft of any
support for appellant's allegation of maltreatment. Two doctors, one for the
prosecution[45] and the other for the defense,[46] testified on the absence of any tell-tale sign
or indication of bodily injury, abrasions or contusions on the person of appellant. What is
evident is that the cause of his abdominal pain was his peptic ulcer from which he had
been suffering even before his arrest.[47] His own brother even corroborated that fact,
saying that appellant has had a history of bleeding peptic ulcer.[48]
Furthermore, if it is true that appellant was maltreated at Camp Olivas, he had no
reason whatsoever for not divulging the same to his brother who went to see him at the
camp after his arrest and during his detention there.[49] Significantly, he also did not even
report the matter to the authorities nor file appropriate charges against the alleged
malefactors despite the opportunity to do so[50] and with the legal services of counsel being
available to him. Such omissions funnel down to the conclusion that appellant's story is a
pure fabrication.
 These, and the events earlier discussed, soundly refute his allegations that his arrest
was baseless and premeditated for the NARCOM agents were determined to arrest him
at all costs.[51] Premeditated or not, appellant's arrest was only the culmination, the final
act needed for his isolation from society and it was providential that it came about after
he was caught in the very act of illicit trade of prohibited drugs. Accordingly, this opinion
could have concluded on a note of affirmance of the judgment of the trial court. However,
Republic Act No. 6425, as amended, was further amended by Republic Act No. 7659
effective December 31, 1993,[52] which supervenience necessarily affects the original
disposition of this case and entails additional questions of law which we shall now resolve.

II

The provisions of the aforesaid amendatory law, pertinent to the adjudication of the
case at bar, are to this effect:
"SEC. 13. Sections 3, 4, 5, 7, 8 and 9 of Art. II of Republic Act No. 6425, as
amended, known as the Dangerous Drugs Act of 1972, are hereby amended to read
as follows:

xxx

‘SEC. 4. Sale, Administration, Delivery, Distribution and Transportation of Prohibited

Drugs. - The penalty of reclusion perpetua to death and a fine ranging from five
hundred thousand pesos to ten million pesos shall be imposed upon any person
who, unless authorized by law, shall sell, administer, deliver, give away to another,
distribute, dispatch in transit or transport any prohibited drug, or shall act as a
broker in any of such transactions.'

xxx

"SEC. 17. Section 20, Article IV of Republic Act No. 6425, as amended, known as
the Dangerous Drugs Act of 1972, is hereby amended to read as follows:

‘Sec. 20. Application of Penalties, Confiscation and Forfeiture of the Proceeds or

Instrument of the Crime. - The penalties for offenses under Sections 3, 4, 7, 8 and
9 of Article II and Sections 14, 14-A, 15 and 16 of Article III of this Act shall be
applied if the dangerous drugs involved is in any of the following quantities:

xxx

5. 750 grams or more of indian hemp or marijuana

xxx

‘Otherwise, if the quantity involved is less than the foregoing quantities, the penalty
shall range from prision correccional to reclusion perpetua depending upon the
quantity.' "
 1. Considering that herein appellant is being prosecuted for the sale of four tea bags of
marijuana with a total weight of only 3.8 grams and, in fact, stands to be convicted for
the sale of only two of those tea bags, the initial inquiry would be whether the patently
favorable provisions of Republic Act No. 7659 should be given retroactive effect to
entitle him to the lesser penalty provided thereunder, pursuant to Article 22 of the
Revised Penal Code.
Although Republic Act No. 6425 was enacted as a special law, albeit originally
amendatory and in substitution of the previous Articles 190 to 194 of the Revised Penal
Code,[53] it has long been settled that by force of Article 10 of said Code the beneficent
provisions of Article 22 thereof applies to and shall be given retrospective effect to crimes
punished by special laws.[54] The exception in said article would not apply to those
convicted of drug offenses since habitual delinquency refers to convictions for the third
time or more of the crimes of serious or less serious physical injuries, robo, hurto,
estafa or falsification.[55]
Since, obviously, the favorable provisions of Republic Act No. 7659 could neither
have then been involved nor invoked in the present case, a corollary question would be
whether this court, at the present stage, can sua sponte apply the provisions of said
Article 22 to reduce the penalty to be imposed on appellant. That issue has likewise been
resolved in the cited case of People vs. Moran, et al., ante., thus:
"x x x. The plain precept contained in article 22 of the Penal Code, declaring the
retroactivity of penal laws in so far as they are favorable to persons accused of a
felony, would be useless and nugatory if the courts of justice were not under
obligation to fulfill such duty, irrespective of whether or not the accused has applied
for it, just as would also all provisions relating to the prescription of the crime and
the penalty."

If the judgment which could be affected and modified by the reduced penalties
provided in Republic Act No. 7659 has already become final and executory or the accused
is serving sentence thereunder, then practice, procedure and pragmatic considerations
would warrant and necessitate the matter being brought to the judicial authorities for relief
under a writ of habeas corpus.[56]
2. Probably through oversight, an error on the matter of imposable penalties appears to
have been committed in the drafting of the aforesaid law, thereby calling for and
necessitating judicial reconciliation and craftsmanship.
As applied to the present case, Section 4 of Republic Act No. 6425, as now further
amended, imposes the penalty of reclusion perpetua to death and a fine ranging from
P500,000.00 to P10,000,000.00 upon any person who shall unlawfully sell, administer,
deliver, give away, distribute, dispatch in transit or transport any prohibited drug. That
penalty, according to the amendment to Section 20 of the law, shall be applied if what is
involved is 750 grams or more of indian hemp or marijuana; otherwise, if the quantity
involved is less, the penalty shall range from prision correccional to reclusion
perpetua depending upon the quantity.
In other words, there is here an overlapping error in the provisions on the penalty
of reclusion perpetua by reason of its dual imposition, that is, as the maximum of the
penalty where the marijuana is less than 750 grams, and also as the minimum of the
penalty where the marijuana involved is 750 grams or more. The same error has been
committed with respect to the other prohibited and regulated drugs provided in said
Section 20. To harmonize such conflicting provisions in order to give effect to the whole
law,[57] we hereby hold that the penalty to be imposed where the quantity of the drugs
involved is less than the quantities stated in the first paragraph shall range from prision
correccional to reclusion temporal, and not reclusion perpetua. This is also concordant
with the fundamental rule in criminal law that all doubts should be construed in a manner
favorable to the accused.
3. Where, as in this case, the quantity of the dangerous drug is only 3.8 grams, hence
covered by the imposable range of penalties under the second paragraph of Section
20, as now modified, the law provides that the penalty shall be taken from said range
"depending upon the quantity" of the drug involved in the case. The penalty in said
second paragraph constitutes a complex one composed of three distinct penalties,
that is, prision correccional, prision mayor, and reclusion temporal. In such a
situation, the Code provides that each one shall form a period, with the lightest of
them being the minimum, the next as the medium, and the most severe as the
maximum period.[58]
Ordinarily, and pursuant to Article 64 of the Code, the mitigating and aggravating
circumstances determine which period of such complex penalty shall be imposed on the
accused. The peculiarity of the second paragraph of Section 20, however, is its specific
mandate, above quoted, that the penalty shall instead depend upon the quantity of the
drug subject of the criminal transaction.[59] Accordingly, by way of exception to Article 77
of the Code and to subserve the purpose of Section 20 of Republic Act No. 7659, each
of the aforesaid component penalties shall be considered as a principal imposable penalty
depending on the quantity of the drug involved. Thereby, the modifying circumstances will
not altogether be disregarded. Since each component penalty of the total complex penalty
will have to be imposed separately as determined by the quantity of the drug involved,
then the modifying circumstances can be used to fix the proper period of that component
penalty, as shall hereafter be explained.
It would, therefore, be in line with the provisions of Section 20 in the context of our
aforesaid disposition thereon that, unless there are compelling reasons for a deviation,
the quantities of the drugs enumerated in its second paragraph be divided into three, with
the resulting quotient, and double or treble the same, to be respectively the bases for
allocating the penalty proportionately among the three aforesaid periods according to the
severity thereof. Thus, if the marijuana involved is below 250 grams, the penalty to be
imposed shall be prision correccional; from 250 to 499 grams, prision mayor; and 500 to
749 grams, reclusion temporal. Parenthetically, fine is imposed as a conjunctive penalty
only if the penalty is reclusion perpetua to death.[60]
Now, considering the minimal quantity of the marijuana subject of the case at bar, the
penalty of prision correccional is consequently indicated but, again, another preliminary
and cognate issue has first to be resolved.
4. Prision correccional has a duration of 6 months and 1 day to 6 years and, as a divisible
penalty, it consists of three periods as provided in the text of and illustrated in the
table provided by Article 76 of the Code. The question is whether or not in determining
 the penalty to be imposed, which is here to be taken from the penalty of prision
correccional, the presence or absence of mitigating, aggravating or other
circumstances modifying criminal liability should be taken into account.
We are not unaware of cases in the past wherein it was held that, in imposing the
penalty for offenses under special laws, the rules on mitigating or aggravating
circumstances under the Revised Penal Code cannot and should not be applied. A review
of such doctrines as applied in said cases, however, reveals that the reason therefor was
because the special laws involved provided their own specific penalties for the offenses
punished thereunder, and which penalties were not taken from or with reference to those
in the Revised Penal Code. Since the penalties then provided by the special laws
concerned did not provide for the minimum, medium or maximum periods, it would
consequently be impossible to consider the aforestated modifying circumstances whose
main function is to determine the period of the penalty in accordance with the rules in
Article 64 of the Code.
This is also the rationale for the holding in previous cases that the provisions of the
Code on the graduation of penalties by degrees could not be given supplementary
application to special laws, since the penalties in the latter were not components of or
contemplated in the scale of penalties provided by Article 71 of the former. The suppletory
effect of the Revised Penal Code to special laws, as provided in Article 10 of the former,
cannot be invoked where there is a legal or physical impossibility of, or a prohibition in
the special law against, such supplementary application.
The situation, however, is different where although the offense is defined in and
ostensibly punished under a special law, the penalty therefor is actually taken from the
Revised Penal Code in its technical nomenclature and, necessarily, with its duration,
correlation and legal effects under the system of penalties native to said Code. When, as
in this case, the law involved speaks of prision correccional, in its technical sense under
the Code, it would consequently be both illogical and absurd to posit otherwise. More on
this later.
For the nonce, we hold that in the instant case the imposable penalty under Republic
Act No. 6425, as amended by Republic Act No. 7659, is prision correccional, to be taken
from the medium period thereof pursuant to Article 64 of the Revised Penal Code, there
being no attendant mitigating or aggravating circumstance.
5. At this juncture, a clarificatory discussion of the developmental changes in the
penalties imposed for offenses under special laws would be necessary.
Originally, those special laws, just as was the conventional practice in the United
States but differently from the penalties provided in our Revised Penal Code and its
Spanish origins, provided for one specific penalty or a range of penalties with definitive
durations, such as imprisonment for one year or for one to five years but without division
into periods or any technical statutory cognomen. This is the special law contemplated in
and referred to at the time laws like the Indeterminate Sentence Law[61] were passed
during the American regime.
Subsequently, a different pattern emerged whereby a special law would direct that an
offense thereunder shall be punished under the Revised Penal Code and in the same
manner provided therein. Inceptively, for instance, Commonwealth Act No.
303[62] penalizing non-payment of salaries and wages with the periodicity prescribed
therein, provided:
"SEC. 4. Failure of the employer to pay his employee or laborer as required by
section one of this Act, shall prima facie be considered a fraud committed by such
employer against his employee or laborer by means of false pretenses similar to
those mentioned in article three hundred and fifteen, paragraph four, sub-
paragraph two (a) of the Revised Penal Code and shall be punished in the same
manner as therein provided."[63]

Thereafter, special laws were enacted where the offenses defined therein were
specifically punished by the penalties as technically named and understood in the
Revised Penal Code. These are exemplified by Republic Act No. 1700 (Anti-Subversion
Act) where the penalties ranged from arresto mayor to death;[64] Presidential Decree No.
1612 (Anti-Fencing Decree) where the penalties run from arresto mayor to prision
mayor; and Presidential Decree No. 1866 (illegal possession and other prohibited acts
involving firearms), the penalties wherefor may involve prision mayor, reclusion
temporal, reclusion perpetua or death.
Another variant worth mentioning is Republic Act No. 6539 (Anti-Carnapping Act of
1972) where the penalty is imprisonment for not less than 14 years and 8 months and not
more than 17 years and 4 months, when committed without violence or intimidation of
persons or force upon things; not less than 17 years and 4 months and not more than 30
years, when committed with violence against or intimidation of any person, or force upon
things; and life imprisonment to death, when the owner, driver or occupant of the
carnapped vehicle is killed.
With respect to the first example, where the penalties under the special law are
different from and are without reference or relation to those under the Revised Penal
Code, there can be no suppletory effect of the rules for the application of penalties under
said Code or by other relevant statutory provisions based on or applicable only to said
rules for felonies under the Code. In this type of special law, the legislative intendment is
clear.
The same exclusionary rule would apply to the last given example, Republic Act No.
6539. While it is true that the penalty of 14 years and 8 months to 17 years and 4 months
is virtually equivalent to the duration of the medium period of reclusion temporal, such
technical term under the Revised Penal Code is not given to that penalty for carnapping.
Besides, the other penalties for carnapping attended by the qualifying circumstances
stated in the law do not correspond to those in the Code. The rules on penalties in the
Code, therefore, cannot suppletorily apply to Republic Act No. 6539 and special laws of
the same formulation.
On the other hand, the rules for the application of penalties and the correlative effects
thereof under the Revised Penal Code, as well as other statutory enactments founded
upon and applicable to such provisions of the Code, have suppletory effect to the
penalties under the former Republic Act No. 1700 and those now provided under
Presidential Decrees Nos. 1612 and 1866. While these are special laws, the fact that the
penalties for offenses thereunder are those provided for in the Revised Penal Code lucidly
reveals the statutory intent to give the related provisions on penalties for felonies under
the Code the corresponding application to said special laws, in the absence of any
express or implicit proscription in these special laws. To hold otherwise would be to
sanction an indefensible judicial truncation of an integrated system of penalties under the
Code and its allied legislation, which could never have been the intendment of Congress.
In People vs. Macatanda,[65] a prosecution under a special law (Presidential Decree
No. 533, otherwise known as the Anti-Cattle Rustling Law of 1974), it was contended by
the prosecution that Article 64, paragraph 5, of the Revised Penal Code should not apply
to said special law. We said therein that --
"We do not agree with the Solicitor General that P.D. 533 is a special law entirely
distinct from and unrelated to the Revised Penal Code. From the nature of the
penalty imposed which is in terms of the classification and duration of penalties as
prescribed in the Revised Penal Code, which is not for penalties as are ordinarily
imposed in special laws, the intent seems clear that P.D. 533 shall be deemed as an
amendment of the Revised Penal Code, with respect to the offense of theft of large
cattle (Art. 310) or otherwise to be subject to applicable provisions thereof such as
Article 104 of the Revised Penal Code x x x. Article 64 of the same Code should,
likewise, be applicable, x x x." (Italics supplied.)

More particularly with regard to the suppletory effect of the rules on penalties in the
Revised Penal Code to Republic Act No. 6425, in this case involving Article 63(2) of the
Code, we have this more recent pronouncement:
"x x x. Pointing out that as provided in Article 10 the provisions of the Revised
Penal Code shall be 'supplementary' to special laws, this Court held that where the
special law expressly grants to the court discretion in applying the penalty
prescribed for the offense, there is no room for the application of the provisions of
the Code. x x x

"The Dangerous Drugs Act of 1972, as amended by P.D. No. 1623, contains no
explicit grant of discretion to the Court in the application of the penalty prescribed
by the law. In such case, the court must be guided by the rules prescribed by the
Revised Penal Code concerning the application of penalties which distill the 'deep
legal thought and centuries of experience in the administration of criminal laws.'”
(Emphasis ours.)[66]

Under the aforestated considerations, in the case of the Dangerous Drugs Act as now
amended by Republic Act No. 7659 by the incorporation and prescription therein of the
technical penalties defined in and constituting integral parts of the three scales of
penalties in the Code,[67] with much more reason should the provisions of said Code on
the appreciation and effects of all attendant modifying circumstances apply in fixing the
penalty. Likewise, the different kinds or classifications of penalties and the rules for
graduating such penalties by degrees should have supplementary effect on Republic Act
No. 6425, except if they would result in absurdities as will now be explained.
 While not squarely in issue in this case, but because this aspect is involved in the
discussion on the role of modifying circumstances, we have perforce to lay down
the caveat that mitigating circumstances should be considered and applied only if they
affect the periods and the degrees of the penalties within rational limits.
Prefatorily, what ordinarily are involved in the graduation and consequently determine
the degree of the penalty, in accordance with the rules in Article 61 of the Code as applied
to the scale of penalties in Article 71, are the stage of execution of the crime and the
nature of the participation of the accused. However, under paragraph 5 of Article 64, when
there are two or more ordinary mitigating circumstances and no aggravating
circumstance, the penalty shall be reduced by one degree. Also, the presence of
privileged mitigating circumstances, as provided in Articles 67 and 68, can reduce the
penalty by one or two degrees, or even more. These provisions of Articles 64(5), 67 and
68 should not apply in toto in the determination of the proper penalty under the
aforestated second paragraph of Section 20 of Republic Act No. 6425, to avoid
anomalous results which could not have been contemplated by the legislature.
Thus, paragraph 5 of Article 61 provides that when the law prescribes a penalty in
some manner not specially provided for in the four preceding paragraphs thereof, the
courts shall proceed by analogy therewith. Hence, when the penalty prescribed for the
crime consists of one or two penalties to be imposed in their full extent, the penalty next
lower in degree shall likewise consist of as many penalties which follow the former in the
scale in Article 71. If this rule were to be applied, and since the complex penalty in this
case consists of three discrete penalties in their full extent, that is, prision
correccional, prision mayor and reclusion temporal, then one degree lower would
be arresto menor, destierro and arresto mayor. There could, however, be no further
reduction by still one or two degrees, which must each likewise consist of three penalties,
since only the penalties of fine and public censure remain in the scale.
The Court rules, therefore, that while modifying circumstances may be appreciated
to determine the periods of the corresponding penalties, or even reduce the penalty
by degrees, in no case should such graduation of penalties reduce the imposable penalty
beyond or lower than prision correccional. It is for this reason that the three component
penalties in the second paragraph of Section 20 shall each be considered as an
independent principal penalty, and that the lowest penalty should in any event be prision
correccional in order not to depreciate the seriousness of drug offenses. Interpretatio
fienda est ut res magis valeat quam pereat. Such interpretation is to be adopted so that
the law may continue to have efficacy rather than fail. A perfect judicial solution cannot
be forged from an imperfect law, which impasse should now be the concern of and is
accordingly addressed to Congress.
6. The final query is whether or not the Indeterminate Sentence Law is applicable to the
case now before us. Apparently it does, since drug offenses are not included in nor
has appellant committed any act which would put him within the exceptions to said
law and the penalty to be imposed does not involve reclusion perpetua or death,
provided, of course, that the penalty as ultimately resolved will exceed one year of
imprisonment.[68] The more important aspect, however, is how the indeterminate
sentence shall be ascertained.
 It is true that Section 1 of said law, after providing for indeterminate sentence for an
offense under the Revised Penal Code, states that "if the offense is punished by any other
law, the court shall sentence the accused to an indeterminate sentence, the maximum
term of which shall not exceed the maximum fixed by said law and the minimum shall not
be less than the minimum term prescribed by the same." We hold that this quoted portion
of the section indubitably refers to an offense under a special law wherein the penalty
imposed was not taken from and is without reference to the Revised Penal Code, as
discussed in the preceding illustrations, such that it may be said that the "offense is
punished" under that law.
There can be no sensible debate that the aforequoted rule on indeterminate sentence
for offenses under special laws was necessary because of the nature of the former type
of penalties under said laws which were not included or contemplated in the scale of
penalties in Article 71 of the Code, hence there could be no minimum "within the range of
the penalty next lower to that prescribed by the Code for the offense," as is the rule for
felonies therein. In the illustrative examples of penalties in special laws hereinbefore
provided, this rule applied, and would still apply, only to the first and last examples.
Furthermore, considering the vintage of Act No. 4103 as earlier noted, this holding is but
an application and is justified under the rule of contemporanea expositio.[69]
We repeat, Republic Act No. 6425, as now amended by Republic Act No. 7659, has
unqualifiedly adopted the penalties under the Revised Penal Code in their technical
terms, hence with their technical signification and effects. In fact, for purposes of
determining the maximum of said sentence, we have applied the provisions of the
amended Section 20 of said law to arrive at prision correccional and Article 64 of the Code
to impose the same in the medium period. Such offense, although provided for in a special
law, is now in effect punished by and under the Revised Penal Code. Correlatively, to
determine the minimum, we must apply the first part of the aforesaid Section 1 which
directs that "in imposing a prison sentence for an offense punished by the Revised Penal
Code, or its amendments, the court shall sentence the accused to an indeterminate
sentence the maximum term of which shall be that which, in view of the attending
circumstances, could be properly imposed under the rules of said Code, and
the minimum which shall be within the range of the penalty next lower to that prescribed
by the Code for the offense." (Italics ours.)
A divergent pedantic application would not only be out of context but also an
admission of the hornbook maxim that qui haeret in litera haeret in cortice. Fortunately,
this Court has never gone only skin-deep in its construction of Act No. 4103 by a mere
literal appreciation of its provisions. Thus, with regard to the phrase in Section 2 thereof
excepting from its coverage "persons convicted of offenses punished with death penalty
or life imprisonment," we have held that what is considered is the penalty actually
imposed and not the penalty imposable under the law,[70] and that reclusion perpetua is
likewise embraced therein although what the law states is "life imprisonment."
What irresistibly emerges from the preceding disquisition, therefore, is that under the
concurrence of the principles of literal interpretation, which have been rationalized by
comparative decisions of this Court; of historical interpretation, as explicated by the
antecedents of the law and related contemporaneous legislation; and of structural
interpretation, considering the interrelation of the penalties in the Code as supplemented
by Act No. 4103 in an integrated scheme of penalties, it follows that the minimum of the
indeterminate sentence in this case shall be the penalty next lower to that prescribed for
the offense. Thereby we shall have interpreted the seeming ambiguity in Section 1 of Act
No. 4103 in such a way as to harmonize laws with laws, which is the best mode of
interpretation.[71]
The Indeterminate Sentence Law is a legal and social measure of compassion, and
should be liberally interpreted in favor of the accused.[72] The "minimum" sentence is
merely a period at which, and not before, as a matter of grace and not of right, the prisoner
may merely be allowed to serve the balance of his sentence outside of his
confinement.[73] It does not constitute the totality of the penalty since thereafter he still has
to continue serving the rest of his sentence under set conditions. That minimum is only
the period when the convict's eligibility for parole may be considered. In fact, his release
on parole may readily be denied if he is found unworthy thereof, or his reincarceration
may be ordered on legal grounds, even if he has served the minimum sentence.
It is thus both amusing and bemusing if, in the case at bar, appellant should be
begrudged the benefit of a minimum sentence within the range of arresto mayor, the
penalty next lower to prision correccional which is the maximum range we have fixed
through the application of Articles 61 and 71 of the Revised Penal Code. For, with fealty
to the law, the court may set the minimum sentence at 6 months of arresto mayor, instead
of 6 months and 1 day of prision correccional. The difference, which could thereby even
involve only one day, is hardly worth the creation of an overrated tempest in the judicial
teapot.
ACCORDINGLY, under all the foregoing premises, the judgment of conviction
rendered by the court a quo against accused-appellant Martin Simon y Sunga is
AFFIRMED, but with the MODIFICATION that he should be, as he hereby is, sentenced
to serve an indeterminate penalty of six (6) months of arresto mayor, as the minimum, to
six (6) years of prision correccional, as the maximum thereof.
SO ORDERED.

[ G.R. No. 135981, January 15, 2004 ]

PEOPLE OF THE PHILIPPINES, APPELLEE, VS. MARIVIC
GENOSA, APPELLANT.

DECISION

PANGANIBAN, J.:
Admitting she killed her husband, appellant anchors her prayer for acquittal on a
novel theory -- the “battered woman syndrome” (BWS), which allegedly constitutes
self-defense. Under the proven facts, however, she is not entitled to complete
exoneration because there was no unlawful aggression -- no immediate and
unexpected attack on her by her batterer-husband at the time she shot him.

Absent unlawful aggression, there can be no self-defense, complete or incomplete.

But all is not lost. The severe beatings repeatedly inflicted on appellant constituted
a form of cumulative provocation that broke down her psychological resistance and
self-control. This “psychological paralysis” she suffered diminished her will power,
thereby entitling her to the mitigating factor under paragraphs 9 and 10 of Article
13 of the Revised Penal Code.

In addition, appellant should also be credited with the extenuating circumstance of

having acted upon an impulse so powerful as to have naturally produced passion
and obfuscation. The acute battering she suffered that fatal night in the hands of
her batterer-spouse, in spite of the fact that she was eight months pregnant with
their child, overwhelmed her and put her in the aforesaid emotional and mental
state, which overcame her reason and impelled her to vindicate her life and her
unborn child’s.

Considering the presence of these two mitigating circumstances arising from BWS,
as well as the benefits of the Indeterminate Sentence Law, she may now apply for
and be released from custody on parole, because she has already served the
minimum period of her penalty while under detention during the pendency of this
case.

The Case

For automatic review before this Court is the September 25, 1998 Decision[1] of the
Regional Trial Court (RTC) of Ormoc City (Branch 35) in Criminal Case No. 5016-0,
finding Marivic Genosa guilty beyond reasonable doubt of parricide. The decretal
portion of the Decision reads:

“WHEREFORE, after all the foregoing being duly considered, the Court finds the
accused, Marivic Genosa y Isidro, GUILTY beyond reasonable doubt of the crime of
Parricide as provided under Article 246 of the Revised Penal Code as restored by
Sec. 5, RA No. 7659, and after finding treachery as a generic aggravating
circumstance and none of mitigating circumstance, hereby sentences the accused
with the penalty of DEATH.

“The Court likewise penalizes the accused to pay the heirs of the deceased the sum
of fifty thousand pesos (P50,000.00), Philippine currency as indemnity and another
sum of fifty thousand pesos (P50,000.00), Philippine currency as moral
damages.”[2]

The Information[3] charged appellant with parricide as follows:

“That on or about the 15th day of November 1995, at Barangay Bilwang,

Municipality of Isabel, Province of Leyte, Philippines and within the jurisdiction of
this Honorable Court, the above-named accused, with intent to kill, with treachery
and evident premeditation, did then and there wilfully, unlawfully and feloniously
attack, assault, hit and wound one BEN GENOSA, her legitimate husband, with the
use of a hard deadly weapon, which the accused had provided herself for the
purpose, [causing] the following wounds, to wit:

‘Cadaveric spasm.

‘Body on the 2nd stage of decomposition.

‘Face, black, blownup & swollen w/ evident post-mortem lividity. Eyes protruding
from its sockets and tongue slightly protrudes out of the mouth.

‘Fracture, open, depressed, circular located at the occipital bone of the head,
resulting [in] laceration of the brain, spontaneous rupture of the blood vessels on
the posterior surface of the brain, laceration of the dura and meningeal vessels
producing severe intracranial hemorrhage.

‘Blisters at both extrem[i]ties, anterior chest, posterior chest, trunk w/ shedding of

the epidermis.

‘Abdomen distended w/ gas. Trunk bloated.’

which caused his death.”[4]

With the assistance of her counsel,[5] appellant pleaded not guilty during her
arraignment on March 3, 1997.[6] In due course, she was tried for and convicted of
parricide.

The Facts

Version of the Prosecution

The Office of the Solicitor General (OSG) summarizes the prosecution’s version of
the facts in this wise:

“Appellant and Ben Genosa were united in marriage on November 19, 1983 in
Ormoc City. Thereafter, they lived with the parents of Ben in their house at Isabel,
Leyte. For a time, Ben’s younger brother, Alex, and his wife lived with them
too. Sometime in 1995, however, appellant and Ben rented from Steban Matiga a
house at Barangay Bilwang, Isabel, Leyte where they lived with their two children,
namely: John Marben and Earl Pierre.

“On November 15, 1995, Ben and Arturo Basobas went to a cockfight after
receiving their salary. They each had two (2) bottles of beer before heading
home. Arturo would pass Ben’s house before reaching his. When they arrived at
the house of Ben, he found out that appellant had gone to Isabel, Leyte to look for
him. Ben went inside his house, while Arturo went to a store across it, waiting until
9:00 in the evening for the masiao runner to place a bet. Arturo did not see
appellant arrive but on his way home passing the side of the Genosas’ rented
house, he heard her say ‘I won’t hesitate to kill you’ to which Ben replied ‘Why kill
me when I am innocent?’ That was the last time Arturo saw Ben alive. Arturo also
noticed that since then, the Genosas’ rented house appeared uninhabited and was
always closed.

“On November 16, 1995, appellant asked Erlinda Paderog, her close friend and
neighbor living about fifty (50) meters from her house, to look after her pig
because she was going to Cebu for a pregnancy check-up. Appellant likewise asked
Erlinda to sell her motorcycle to their neighbor Ronnie Dayandayan who
unfortunately had no money to buy it.

“That same day, about 12:15 in the afternoon, Joseph Valida was waiting for a bus
going to Ormoc when he saw appellant going out of their house with her two kids in
tow, each one carrying a bag, locking the gate and taking her children to the
waiting area where he was. Joseph lived about fifty (50) meters behind the
Genosas’ rented house. Joseph, appellant and her children rode the same bus to
Ormoc. They had no conversation as Joseph noticed that appellant did not want to
talk to him.

“On November 18, 1995, the neighbors of Steban Matiga told him about the foul
odor emanating from his house being rented by Ben and appellant. Steban went
there to find out the cause of the stench but the house was locked from the
inside. Since he did not have a duplicate key with him, Steban destroyed the gate
padlock with a borrowed steel saw. He was able to get inside through the kitchen
door but only after destroying a window to reach a hook that locked it. Alone,
Steban went inside the unlocked bedroom where the offensive smell was coming
from. There, he saw the lifeless body of Ben lying on his side on the bed covered
with a blanket. He was only in his briefs with injuries at the back of his
head. Seeing this, Steban went out of the house and sent word to the mother of
Ben about his son’s misfortune. Later that day, Iluminada Genosa, the mother of
Ben, identified the dead body as that of [her] son.

“Meanwhile, in the morning of the same day, SPO3 Leo Acodesin, then assigned at
the police station at Isabel, Leyte, received a report regarding the foul smell at the
Genosas’ rented house. Together with SPO1 Millares, SPO1 Colon, and Dr. Refelina
Cerillo, SPO3 Acodesin proceeded to the house and went inside the bedroom where
they found the dead body of Ben lying on his side wrapped with a bedsheet. There
was blood at the nape of Ben who only had his briefs on. SPO3 Acodesin found in
one corner at the side of an aparador a metal pipe about two (2) meters from
where Ben was, leaning against a wall. The metal pipe measured three (3) feet and
six (6) inches long with a diameter of one and half (1 1/2) inches. It had an open
end without a stop valve with a red stain at one end. The bedroom was not in
disarray.

“About 10:00 that same morning, the cadaver of Ben, because of its stench, had to
be taken outside at the back of the house before the postmortem examination was
conducted by Dr. Cerillo in the presence of the police. A municipal health officer at
Isabel, Leyte responsible for medico-legal cases, Dr. Cerillo found that Ben had
been dead for two to three days and his body was already decomposing. The
postmortem examination of Dr. Cerillo yielded the findings quoted in the
Information for parricide later filed against appellant. She concluded that the cause
of Ben’s death was ‘cardiopulmonary arrest secondary to severe intracranial
hemorrhage due to a depressed fracture of the occipital [bone].’

“Appellant admitted killing Ben. She testified that going home after work on
November 15, 1995, she got worried that her husband who was not home yet
might have gone gambling since it was a payday. With her cousin Ecel Araño,
appellant went to look for Ben at the marketplace and taverns at Isabel, Leyte but
did not find him there. They found Ben drunk upon their return at the Genosas’
house. Ecel went home despite appellant’s request for her to sleep in their house.

“Then, Ben purportedly nagged appellant for following him, even challenging her to
a fight. She allegedly ignored him and instead attended to their children who were
doing their homework. Apparently disappointed with her reaction, Ben switched off
the light and, with the use of a chopping knife, cut the television antenna or wire to
keep her from watching television. According to appellant, Ben was about to attack
her so she ran to the bedroom, but he got hold of her hands and whirled her
around. She fell on the side of the bed and screamed for help. Ben left. At this
point, appellant packed his clothes because she wanted him to leave. Seeing his
packed clothes upon his return home, Ben allegedly flew into a rage, dragged
appellant outside of the bedroom towards a drawer holding her by the neck, and
told her ‘You might as well be killed so nobody would nag me.’ Appellant testified
that she was aware that there was a gun inside the drawer but since Ben did not
have the key to it, he got a three-inch long blade cutter from his wallet. She
however, ‘smashed’ the arm of Ben with a pipe, causing him to drop the blade and
his wallet. Appellant then ‘smashed’ Ben at his nape with the pipe as he was about
to pick up the blade and his wallet. She thereafter ran inside the bedroom.
“Appellant, however, insisted that she ended the life of her husband by shooting
him. She supposedly ‘distorted’ the drawer where the gun was and shot Ben. He
did not die on the spot, though, but in the bedroom.”[7] (Citations omitted)

Version of the Defense

Appellant relates her version of the facts in this manner:

“1. Marivic and Ben Genosa were allegedly married on November 19, 1983. Prior to
her marriage, Marivic had graduated from San Carlos, Cebu City, obtaining a
degree of Bachelor of Science in Business Administration, and was working, at the
time of her husband’s death, as a Secretary to the Port Managers in Ormoc
City. The couple had three (3) children: John Marben, Earl Pierre and Marie Bianca.

“2. Marivic and Ben had known each other since elementary school; they were
neighbors in Bilwang; they were classmates; and they were third degree
cousins. Both sets of parents were against their relationship, but Ben was
persistent and tried to stop other suitors from courting her. Their closeness
developed as he was her constant partner at fiestas.

“3. After their marriage, they lived first in the home of Ben’s parents, together with
Ben’s brother, Alex, in Isabel, Leyte. In the first year of marriage, Marivic and Ben
‘lived happily’. But apparently, soon thereafter, the couple would quarrel often and
their fights would become violent.

“4. Ben’s brother, Alex, testified for the prosecution that he could not remember
when Ben and Marivic married. He said that when Ben and Marivic
quarreled, generally when Ben would come home drunk, Marivic would inflict
injuries on him. He said that in one incident in 1993 he saw Marivic holding a
kitchen knife after Ben had shouted for help as his left hand was covered with
blood. Marivic left the house but after a week, she returned apparently having
asked for Ben’s forgiveness. In another incident in May 22, 1994, early morning,
Alex and his father apparently rushed to Ben’s aid again and saw blood from Ben’s
forehead and Marivic holding an empty bottle. Ben and Marivic reconciled after
Marivic had apparently again asked for Ben’s forgiveness.

“Mrs. Iluminada Genosa, Marivic’s mother-in-law, testified too, saying that Ben and
Marivic married in ‘1986 or 1985 more or less here in Fatima, Ormoc City.’ She
said as the marriage went along, Marivic became ‘already very demanding. Mrs.
Iluminada Genosa said that after the birth of Marivic’s two sons, there were ‘three
(3) misunderstandings.’ The first was when Marivic stabbed Ben with a table knife
through his left arm; the second incident was on November 15, 1994, when Marivic
struck Ben on the forehead ‘using a sharp instrument until the eye was also
affected. It was wounded and also the ear’ and her husband went to Ben to help;
and the third incident was in 1995 when the couple had already transferred to the
house in Bilwang and she saw that Ben’s hand was plastered as ‘the bone cracked.’

“Both mother and son claimed they brought Ben to a Pasar clinic for medical
intervention.

“5. Arturo Basobas, a co-worker of Ben, testified that on November 15, 1995 ‘After
we collected our salary, we went to the cock-fighting place of ISCO.’ They stayed
there for three (3) hours, after which they went to ‘Uniloks’ and drank beer –
allegedly only two (2) bottles each. After drinking they bought barbeque and went
to the Genosa residence. Marivic was not there. He stayed a while talking with
Ben, after which he went across the road to wait ‘for the runner and the usher of
the masiao game because during that time, the hearing on masiao numbers was
rampant. I was waiting for the ushers and runners so that I can place my bet.’ On
his way home at about 9:00 in the evening, he heard the Genosas arguing. They
were quarreling loudly. Outside their house was one ‘Fredo’ who is used by Ben to
feed his fighting cocks. Basobas’ testimony on the root of the quarrel, conveniently
overheard by him was Marivic saying ‘I will never hesitate to kill you’, whilst Ben
replied ‘Why kill me when I am innocent.’ Basobas thought they were joking.

“He did not hear them quarreling while he was across the road from the Genosa
residence. Basobas admitted that he and Ben were always at the cockpits every
Saturday and Sunday. He claims that he once told Ben ‘before when he was
stricken with a bottle by Marivic Genosa’ that he should leave her and that Ben
would always take her back after she would leave him ‘so many times’.

“Basobas could not remember when Marivic had hit Ben, but it was a long time that
they had been quarreling. He said Ben ‘even had a wound’ on the right
forehead. He had known the couple for only one (1) year.

“6. Marivic testified that after the first year of marriage, Ben became cruel to her
and was a habitual drinker. She said he provoked her, he would slap her,
sometimes he would pin her down on the bed, and sometimes beat her.

“These incidents happened several times and she would often run home to her
parents, but Ben would follow her and seek her out, promising to change and would
ask for her forgiveness. She said after she would be beaten, she would seek
medical help from Dr. Dino Caing, Dr. Lucero and Dra. Cerillo. These doctors would
enter the injuries inflicted upon her by Ben into their reports. Marivic said Ben
would beat her or quarrel with her every time he was drunk, at least three times a
week.

“7. In her defense, witnesses who were not so closely related to Marivic, testified as
to the abuse and violence she received at the hands of Ben.
‘7.1. Mr. Joe Barrientos, a fisherman, who was a [neighbor] of the Genosas,
testified that on November 15, 1995, he overheard a quarrel between Ben and
Marivic. Marivic was shouting for help and through the open jalousies, he saw the
spouses ‘grappling with each other’. Ben had Marivic in a choke hold. He did not
do anything, but had come voluntarily to testify. (Please note this was the same
night as that testified to by Arturo Busabos.[8])

‘7.2. Mr. Junnie Barrientos, also a fisherman, and the brother of Mr. Joe Barrientos,
testified that he heard his neighbor Marivic shouting on the night of November 15,
1995. He peeped through the window of his hut which is located beside the Genosa
house and saw ‘the spouses grappling with each other then Ben Genosa was
holding with his both hands the neck of the accused, Marivic Genosa’. He said after
a while, Marivic was able to extricate he[r]self and enter the room of the
children. After that, he went back to work as he was to go fishing that evening. He
returned at 8:00 the next morning. (Again, please note that this was the same
night as that testified to by Arturo Basobas).

‘7.3. Mr. Teodoro Sarabia was a former neighbor of the Genosas while they were
living in Isabel, Leyte. His house was located about fifty (50) meters from
theirs. Marivic is his niece and he knew them to be living together for 13 or 14
years. He said the couple was always quarreling. Marivic confided in him that Ben
would pawn items and then would use the money to gamble. One time, he went to
their house and they were quarreling. Ben was so angry, but would be pacified ‘if
somebody would come.’ He testified that while Ben was alive ‘he used to gamble
and when he became drunk, he would go to our house and he will say, ‘Teody’
because that was what he used to call me, ‘mokimas ta,’ which means ‘let’s go and
look for a whore.’ Mr. Sarabia further testified that Ben ‘would box his wife and I
would see bruises and one time she ran to me, I noticed a wound (the witness
pointed to his right breast) as according to her a knife was stricken to her.’ Mr.
Sarabia also said that once he saw Ben had been injured too. He said he
voluntarily testified only that morning.

‘7.4. Miss Ecel Arano, an 18-year old student, who is a cousin of Marivic, testified
that in the afternoon of November 15, 1995, Marivic went to her house and asked
her help to look for Ben. They searched in the market place, several taverns and
some other places, but could not find him. She accompanied Marivic
home. Marivic wanted her to sleep with her in the Genosa house ‘because she
might be battered by her husband.’ When they got to the Genosa house at about
7:00 in the evening, Miss Arano said that ‘her husband was already there and was
drunk.’ Miss Arano knew he was drunk ‘because of his staggering walking and I can
also detect his face.’ Marivic entered the house and she heard them quarrel noisily.
(Again, please note that this is the same night as that testified to by Arturo
Basobas) Miss Arano testified that this was not the first time Marivic had asked her
to sleep in the house as Marivic would be afraid every time her husband would
come home drunk. At one time when she did sleep over, she was awakened at
10:00 in the evening when Ben arrived because the couple ‘were very noisy in the
sala and I had heard something was broken like a vase.’ She said Marivic ran into
her room and they locked the door. When Ben couldn’t get in he got a chair and a
knife and ‘showed us the knife through the window grill and he scared us.’ She said
that Marivic shouted for help, but no one came. On cross-examination, she said
that when she left Marivic’s house on November 15, 1995, the couple were still
quarreling.

‘7.5. Dr. Dino Caing, a physician testified that he and Marivic were co-employees at
PHILPHOS, Isabel, Leyte. Marivic was his patient ‘many times’ and had also
received treatment from other doctors. Dr. Caing testified that from July 6, 1989
until November 9, 1995, there were six (6) episodes of physical injuries inflicted
upon Marivic. These injuries were reported in his Out-Patient Chart at the
PHILPHOS Hospital. The prosecution admitted the qualifications of Dr. Caing and
considered him an expert witness.’

xxx xxx xxx

‘Dr. Caing’s clinical history of the tension headache and hypertention of Marivic on
twenty-three (23) separate occasions was marked at Exhibits ‘2’ and ‘2-B.’ The
OPD Chart of Marivic at the Philphos Clinic which reflected all the consultations
made by Marivic and the six (6) incidents of physical injuries reported was marked
as Exhibit ‘3.’

“On cross-examination, Dr. Caing said that he is not a psychiatrist, he could not say
whether the injuries were directly related to the crime committed. He said it is only
a psychiatrist who is qualified to examine the psychological make-up of the patient,
‘whether she is capable of committing a crime or not.’

‘7.6 Mr. Panfilo Tero, the barangay captain in the place where the Genosas resided,
testified that about two (2) months before Ben died, Marivic went to his office past
8:00 in the evening. She sought his help to settle or confront the Genosa couple
who were experiencing ‘family troubles’. He told Marivic to return in the morning,
but he did not hear from her again and assumed ‘that they might have settled with
each other or they might have forgiven with each other.’

xxx xxx xxx

“Marivic said she did not provoke her husband when she got home that night it was
her husband who began the provocation. Marivic said she was frightened that her
husband would hurt her and she wanted to make sure she would deliver her baby
safely. In fact, Marivic had to be admitted later at the Rizal Medical Centre as she
was suffering from eclampsia and hypertension, and the baby was born
prematurely on December 1, 1995.
“Marivic testified that during her marriage she had tried to leave her husband at
least five (5) times, but that Ben would always follow her and they would
reconcile. Marivic said that the reason why Ben was violent and abusive towards
her that night was because ‘he was crazy about his recent girlfriend, Lulu x x x
Rubillos.’

“On cross-examination, Marivic insisted she shot Ben with a gun; she said that he
died in the bedroom; that their quarrels could be heard by anyone passing their
house; that Basobas lied in his testimony; that she left for Manila the next day,
November 16, 1995; that she did not bother anyone in Manila, rented herself a
room, and got herself a job as a field researcher under the alias ‘Marvelous Isidro’;
she did not tell anyone that she was leaving Leyte, she just wanted to have a safe
delivery of her baby; and that she was arrested in San Pablo, Laguna.

‘Answering questions from the Court, Marivic said that she threw the gun away;
that she did not know what happened to the pipe she used to ‘smash him once’;
that she was wounded by Ben on her wrist with the bolo; and that two (2) hours
after she was ‘whirled’ by Ben, he kicked her ‘ass’ and dragged her towards the
drawer when he saw that she had packed his things.’

“9. The body of Ben Genosa was found on November 18, 1995 after an
investigation was made of the foul odor emitting from the Genosa residence. This
fact was testified to by all the prosecution witnesses and some defense witnesses
during the trial.

“10. Dra. Refelina Y. Cerillo, a physician, was the Municipal Health Officer of Isabel,
Leyte at the time of the incident, and among her responsibilities as such was to
take charge of all medico-legal cases, such as the examination of cadavers and the
autopsy of cadavers. Dra. Cerillo is not a forensic pathologist. She merely took the
medical board exams and passed in 1986. She was called by the police to go to the
Genosa residence and when she got there, she saw ‘some police officer and
neighbor around.’ She saw Ben Genosa, covered by a blanket, lying in a semi-
prone position with his back to the door. He was wearing only a brief.

xxx xxx xxx

“Dra. Cerillo said that ‘there is only one injury and that is the injury involving the
skeletal area of the head’ which she described as a ‘fracture’. And that based on
her examination, Ben had been dead 2 or 3 days. Dra. Cerillo did not testify as
to what caused his death.

“Dra. Cerillo was not cross-examined by defense counsel.

“11. The Information, dated November 14, 1996, filed against Marivic Genosa
charged her with the crime of PARRICIDE committed ‘with intent to kill, with
treachery and evidence premeditation, x x x wilfully, unlawfully and feloniously
attack, assault, hit and wound x x x her legitimate husband, with the use of a hard
deadly weapon x x x which caused his death.’

“12. Trial took place on 7 and 14 April 1997, 14 May 1997, 21 July 1997, 17, 22
and 23 September 1997, 12 November 1997, 15 and 16 December 1997, 22 May
1998, and 5 and 6 August 1998.

“13. On 23 September 1998, or only fifty (50) days from the day of the last trial
date, the Hon. Fortunito L. Madrona, Presiding Judge, RTC-Branch 35, Ormoc City,
rendered a JUDGMENT finding Marivic guilty ‘beyond reasonable doubt’ of the crime
of parricide, and further found treachery as an aggravating circumstance, thus
sentencing her to the ultimate penalty of DEATH.

“14. The case was elevated to this Honorable Court upon automatic review and,
under date of 24 January 2000, Marivic’s trial lawyer, Atty. Gil Marvel P.
Tabucanon, filed a Motion to Withdraw as counsel, attaching thereto, as a
precautionary measure, two (2) drafts of Appellant’s Briefs he had prepared for
Marivic which, for reasons of her own, were not conformed to by her.

“The Honorable Court allowed the withdrawal of Atty. Tabucanon and permitted the
entry of appearance of undersigned counsel.

“15. Without the knowledge of counsel, Marivic Genosa wrote a letter dated 20
January 2000, to the Chief Justice, coursing the same through Atty. Teresita G.
Dimaisip, Deputy Clerk of Court of Chief Judicial Records Office, wherein she
submitted her ‘Brief without counsels’ to the Court.

“This letter was stamp-received by the Honorable Court on 4 February 2000.

“16. In the meantime, under date of 17 February 2000, and stamp-received by the
Honorable Court on 19 February 2000, undersigned counsel filed an URGENT
OMNIBUS MOTION praying that the Honorable Court allow the exhumation of Ben
Genosa and the re-examination of the cause of his death; allow the examination of
Marivic Genosa by qualified psychologists and psychiatrists to determine her state
of mind at the time she killed her husband; and finally, to allow a partial re-opening
of the case a quo to take the testimony of said psychologists and psychiatrists.

“Attached to the URGENT OMNIBUS MOTION was a letter of Dr. Raquel Fortun, then
the only qualified forensic pathologist in the country, who opined that the
description of the death wound (as culled from the post-mortem findings, Exhibit
‘A’) is more akin to a gunshot wound than a beating with a lead pipe.
“17. In a RESOLUTION dated 29 September 2000, the Honorable Court partly
granted Marivic’s URGENT OMNIBUS MOTION and remanded the case ‘to the trial
court for the reception of expert psychological and/or psychiatric opinion on the
‘battered woman syndrome’ plea, within ninety (90) days from notice, and,
thereafter to forthwith report to this Court the proceedings taken, together with the
copies of the TSN and relevant documentary evidence, if any, submitted.’

“18. On 15 January 2001, Dra. Natividad A. Dayan appeared and testified before
the Hon. Fortunito L. Madrona, RTC-Branch 35, Ormoc City.

“Immediately before Dra. Dayan was sworn, the Court a quo asked if she had
interviewed Marivic Genosa. Dra. Dayan informed the Court that interviews were
done at the Penal Institution in 1999, but that the clinical interviews and
psychological assessment were done at her clinic.

“Dra. Dayan testified that she has been a clinical psychologist for twenty (20) years
with her own private clinic and connected presently to the De La Salle University as
a professor. Before this, she was the Head of the Psychology Department of the
Assumption College; a member of the faculty of Psychology at the Ateneo de Manila
University and St. Joseph’s College; and was the counseling psychologist of the
National Defense College. She has an AB in Psychology from the University of the
Philippines, a Master of Arts in Clinical [Counseling], Psychology from the Ateneo,
and a PhD from the U.P. She was the past president of the Psychological
Association of the Philippines and is a member of the American Psychological
Association. She is the secretary of the International Council of Psychologists from
about 68 countries; a member of the Forensic Psychology Association; and a
member of the ASEAN [Counseling] Association. She is actively involved with the
Philippine Judicial Academy, recently lecturing on the socio-demographic and
psychological profile of families involved in domestic violence and nullity cases. She
was with the Davide Commission doing research about Military Psychology. She
has written a book entitled ‘Energy Global Psychology’ (together with Drs. Allan Tan
and Allan Bernardo). The Genosa case is the first time she has testified as an
expert on battered women as this is the first case of that nature.

“Dra. Dayan testified that for the research she conducted, on the socio-
demographic and psychological profile of families involved in domestic violence, and
nullity cases, she looked at about 500 cases over a period of ten (10) years and
discovered that ‘there are lots of variables that cause all of this marital conflicts,
from domestic violence to infidelity, to psychiatric disorder.’

“Dra. Dayan described domestic violence to comprise of ‘a lot of incidents of

psychological abuse, verbal abuse, and emotional abuse to physical abuse and also
sexual abuse.’
 xxx xxx xxx

“Dra. Dayan testified that in her studies, ‘the battered woman usually has a very
low opinion of herself. She has a self-defeating and self-sacrificing characteristics.
x x x they usually think very lowly of themselves and so when the violence would
happen, they usually think that they provoke it, that they were the one who
precipitated the violence, they provoke their spouse to be physically, verbally and
even sexually abusive to them.’ Dra. Dayan said that usually a battered x x x
comes from a dysfunctional family or from ‘broken homes.’

“Dra. Dayan said that the batterer, just like the battered woman, ‘also has a very
low opinion of himself. But then emerges to have superiority complex and it comes
out as being very arrogant, very hostile, very aggressive and very angry. They also
had (sic) a very low tolerance for frustrations. A lot of times they are involved in
vices like gambling, drinking and drugs. And they become violent.’ The batterer
also usually comes from a dysfunctional family which over-pampers them and
makes them feel entitled to do anything. Also, they see often how their parents
abused each other so ‘there is a lot of modeling of aggression in the family.’

“Dra. Dayan testified that there are a lot of reasons why a battered woman
does not leave her husband: poverty, self-blame and guilt that she provoked the
violence, the cycle itself which makes her hope her husband will change, the belief
in her obligations to keep the family intact at all costs for the sake of the children.

xxx xxx xxx

“Dra. Dayan said that abused wives react differently to the violence: some leave
the house, or lock themselves in another room, or sometimes try to fight back
triggering ‘physical violence on both of them.’ She said that in a ‘normal marital
relationship,’ abuses also happen, but these are ‘not consistent, not chronic, are not
happening day in [and] day out.’ In an ‘abnormal marital relationship,’ the abuse
occurs day in and day out, is long lasting and ‘even would cause hospitalization on
the victim and even death on the victim.’

xxx xxx xxx

“Dra. Dayan said that as a result of the battery of psychological tests she
administered, it was her opinion that Marivic fits the profile of a battered woman
because ‘inspite of her feeling of self-confidence which we can see at times there
are really feeling (sic) of loss, such feelings of humiliation which she sees herself as
damaged and as a broken person. And at the same time she still has the imprint of
all the abuses that she had experienced in the past.’
 xxx xxx xxx

“Dra. Dayan said Marivic thought of herself as a loving wife and did not even
consider filing for nullity or legal separation inspite of the abuses. It was at the
time of the tragedy that Marivic then thought of herself as a victim.

xxx xxx xxx

“19. On 9 February 2001, Dr. Alfredo Pajarillo, a physician, who has since passed
away, appeared and testified before RTC-Branch 35, Ormoc City.

“Dr. Pajarillo was a Diplomate of the Philippine Board of Psychiatry; a Fellow of the
Philippine Board of Psychiatry and a Fellow of the Philippine Psychiatry
Association. He was in the practice of psychiatry for thirty-eight (38) years. Prior
to being in private practice, he was connected with the Veterans Memorial Medical
Centre where he gained his training on psychiatry and neurology. After that, he
was called to active duty in the Armed Forces of the Philippines, assigned to the V.
Luna Medical Center for twenty six (26) years. Prior to his retirement from
government service, he obtained the rank of Brigadier General. He obtained his
medical degree from the University of Santo Tomas. He was also a member of the
World Association of Military Surgeons; the Quezon City Medical Society; the
Cagayan Medical Society; and the Philippine Association of Military Surgeons.

“He authored ‘The Comparative Analysis of Nervous Breakdown in the Philippine

Military Academy from the Period 1954 – 1978’ which was presented twice in
international congresses. He also authored ‘The Mental Health of the Armed Forces
of the Philippines 2000’, which was likewise published internationally and
locally. He had a medical textbook published on the use of Prasepam on a Parke-
Davis grant; was the first to use Enanthate (siquiline), on an E.R. Squibb grant;
and he published the use of the drug Zopiclom in 1985-86.

“Dr. Pajarillo explained that psychiatry deals with the functional disorder of the
mind and neurology deals with the ailment of the brain and spinal cord
enlarged. Psychology, on the other hand, is a bachelor degree and a doctorate
degree; while one has to finish medicine to become a specialist in psychiatry.

“Even only in his 7th year as a resident in V. Luna Medical Centre, Dr. Pajarillo had
already encountered a suit involving violent family relations, and testified in a case
in 1964. In the Armed Forces of the Philippines, violent family disputes abound,
and he has seen probably ten to twenty thousand cases. In those days, the
primordial intention of therapy was reconciliation. As a result of his experience with
domestic violence cases, he became a consultant of the Battered Woman Office in
Quezon City under Atty. Nenita Deproza.

“As such consultant, he had seen around forty (40) cases of severe domestic
violence, where there is physical abuse: such as slapping, pushing, verbal abuse,
battering and boxing a woman even to an unconscious state such that the woman
is sometimes confined. The affliction of Post-Traumatic Stress Disorder ‘depends on
the vulnerability of the victim.’ Dr. Pajarillo said that if the victim is not very
healthy, perhaps one episode of violence may induce the disorder; if the
psychological stamina and physiologic constitutional stamina of the victim is
stronger, ‘it will take more repetitive trauma to precipitate the post-traumatic
stress disorder and this x x x is very dangerous.’

“In psychiatry, the post-traumatic stress disorder is incorporated under the ‘anxiety
neurosis or neurologic anxcietism.’ It is produced by ‘overwhelming brutality,
trauma.’

xxx xxx xxx

“Dr. Pajarillo explained that with ‘neurotic anxiety’, the victim relives the beating or
trauma as if it were real, although she is not actually being beaten at that
time. She thinks ‘of nothing but the suffering.’

xxx xxx xxx

“A woman who suffers battery has a tendency to become neurotic, her emotional
tone is unstable, and she is irritable and restless. She tends to become hard-
headed and persistent. She has higher sensitivity and her ‘self-world’ is damaged.

“Dr. Pajarillo said that an abnormal family background relates to an individual’s

illness, such as the deprivation of the continuous care and love of the parents. As
to the batterer, he normally ‘internalizes what is around him within the
environment.’ And it becomes his own personality. He is very competitive; he is
aiming high all the time; he is so macho; he shows his strong façade ‘but in it there
are doubts in himself and prone to act without thinking.’

xxx xxx xxx

“Dr. Pajarillo emphasized that ‘even though without the presence of the precipator
(sic) or the one who administered the battering, that re-experiencing of the trauma
occurred (sic) because the individual cannot control it. It will just come up in her
mind or in his mind.’

xxx xxx xxx

“Dr. Pajarillo said that a woman suffering post traumatic stress disorder try to
defend themselves, and ‘primarily with knives. Usually pointed weapons or any
weapon that is available in the immediate surrounding or in a hospital x x x
because that abound in the household.’ He said a victim resorts to weapons when
she has ‘reached the lowest rock bottom of her life and there is no other recourse
left on her but to act decisively.’

xxx xxx xxx

“Dr. Pajarillo testified that he met Marivic Genosa in his office in an interview he
conducted for two (2) hours and seventeen (17) minutes. He used the
psychological evaluation and social case studies as a help in forming his
diagnosis. He came out with a Psychiatric Report, dated 22 January 2001.

xxx xxx xxx

“On cross-examination by the private prosecutor, Dr. Pajarillo said that at the time
she killed her husband Marivic’c mental condition was that she was ‘re-experiencing
the trauma.’ He said ‘that we are trying to explain scientifically that the re-
experiencing of the trauma is not controlled by Marivic. It will just come in flashes
and probably at that point in time that things happened when the re-experiencing
of the trauma flashed in her mind.’ At the time he interviewed Marivic ‘she was
more subdued, she was not super alert anymore x x x she is mentally stress (sic)
because of the predicament she is involved.’

xxx xxx xxx

“20. No rebuttal evidence or testimony was presented by either the private or the
public prosecutor. Thus, in accord with the Resolution of this Honorable Court, the
records of the partially re-opened trial a quo were elevated.”[9]
Ruling of the Trial Court

Finding the proffered theory of self-defense untenable, the RTC gave credence to
the prosecution evidence that appellant had killed the deceased while he was in bed
sleeping. Further, the trial court appreciated the generic aggravating circumstance
of treachery, because Ben Genosa was supposedly defenseless when he was
killed -- lying in bed asleep when Marivic smashed him with a pipe at the back of
his head.

The capital penalty having been imposed, the case was elevated to this Court for
automatic review.

Supervening Circumstances
On February 19, 2000, appellant filed an Urgent Omnibus Motion praying that this
Court allow (1) the exhumation of Ben Genosa and the reexamination of the cause
of his death; (2) the examination of appellant by qualified psychologists and
psychiatrists to determine her state of mind at the time she had killed her spouse;
and (3) the inclusion of the said experts’ reports in the records of the case for
purposes of the automatic review or, in the alternative, a partial reopening of the
case for the lower court to admit the experts’ testimonies.

On September 29, 2000, this Court issued a Resolution granting in part appellant’s
Motion, remanding the case to the trial court for the reception of expert
psychological and/or psychiatric opinion on the “battered woman syndrome” plea;
and requiring the lower court to report thereafter to this Court the proceedings
taken as well as to submit copies of the TSN and additional evidence, if any.

Acting on the Court’s Resolution, the trial judge authorized the examination of
Marivic by two clinical psychologists, Drs. Natividad Dayan[10] and Alfredo
Pajarillo,[11] supposedly experts on domestic violence. Their testimonies, along with
their documentary evidence, were then presented to and admitted by the lower
court before finally being submitted to this Court to form part of the records of the
case.[12]

The Issues

Appellant assigns the following alleged errors of the trial court for this Court’s
consideration:

“1. The trial court gravely erred in promulgating an obviously hasty decision without
reflecting on the evidence adduced as to self-defense.

“2. The trial court gravely erred in finding as a fact that Ben and Marivic Genosa
were legally married and that she was therefore liable for parricide.

“3. The trial court gravely erred finding the cause of death to be by beating with a
pipe.

“4. The trial court gravely erred in ignoring and disregarding evidence adduced
from impartial and unbiased witnesses that Ben Genosa was a drunk, a gambler, a
womanizer and wife-beater; and further gravely erred in concluding that Ben
Genosa was a battered husband.

“5. The trial court gravely erred in not requiring testimony from the children of
Marivic Genosa.

“6. The trial court gravely erred in concluding that Marivic’s flight to Manila and her
subsequent apologies were indicia of guilt, instead of a clear attempt to save the
life of her unborn child.

“7. The trial court gravely erred in concluding that there was an aggravating
circumstance of treachery.

“8. The trial court gravely erred in refusing to re-evaluate the traditional elements
in determining the existence of self-defense and defense of foetus in this case,
thereby erroneously convicting Marivic Genosa of the crime of parricide and
condemning her to the ultimate penalty of death.”[13]

In the main, the following are the essential legal issues: (1) whether appellant
acted in self-defense and in defense of her fetus; and (2) whether treachery
attended the killing of Ben Genosa.

The Court’s Ruling

The appeal is partly meritorious.

Collateral Factual Issues

The first six assigned errors raised by appellant are factual in nature, if not
collateral to the resolution of the principal issues. As consistently held by this
Court, the findings of the trial court on the credibility of witnesses and their
testimonies are entitled to a high degree of respect and will not be disturbed on
appeal in the absence of any showing that the trial judge gravely abused his
discretion or overlooked, misunderstood or misapplied material facts or
circumstances of weight and substance that could affect the outcome of the
case.[14]

In appellant’s first six assigned items, we find no grave abuse of discretion,

reversible error or misappreciation of material facts that would reverse or modify
the trial court’s disposition of the case. In any event, we will now briefly dispose of
these alleged errors of the trial court.

First, we do not agree that the lower court promulgated “an obviously hasty
decision without reflecting on the evidence adduced as to self-defense.” We note
that in his 17-page Decision, Judge Fortunito L. Madrona summarized the
testimonies of both the prosecution and the defense witnesses and -- on the basis
of those and of the documentary evidence on record -- made his evaluation,
findings and conclusions. He wrote a 3-page discourse assessing the testimony and
the self-defense theory of the accused. While she, or even this Court, may not
agree with the trial judge’s conclusions, we cannot peremptorily conclude, absent
substantial evidence, that he failed to reflect on the evidence presented.

Neither do we find the appealed Decision to have been made in an “obviously

hasty” manner. The Information had been filed with the lower court on November
14, 1996. Thereafter, trial began and at least 13 hearings were held for over a
year. It took the trial judge about two months from the conclusion of trial to
promulgate his judgment. That he conducted the trial and resolved the case with
dispatch should not be taken against him, much less used to condemn him for
being unduly hasty. If at all, the dispatch with which he handled the case should be
lauded. In any case, we find his actions in substantial compliance with his
constitutional obligation.[15]

Second, the lower court did not err in finding as a fact that Ben Genosa and
appellant had been legally married, despite the non-presentation of their marriage
contract. In People v. Malabago,[16] this Court held:

“The key element in parricide is the relationship of the offender with the victim. In
the case of parricide of a spouse, the best proof of the relationship between the
accused and the deceased is the marriage certificate. In the absence of a marriage
certificate, however, oral evidence of the fact of marriage may be considered by the
trial court if such proof is not objected to.”

Two of the prosecution witnesses -- namely, the mother and the brother of
appellant’s deceased spouse -- attested in court that Ben had been married to
Marivic.[17] The defense raised no objection to these testimonies. Moreover, during
her direct examination, appellant herself made a judicial admission of her marriage
to Ben.[18] Axiomatic is the rule that a judicial admission is conclusive upon the
party making it, except only when there is a showing that (1) the admission was
made through a palpable mistake, or (2) no admission was in fact made.[19] Other
than merely attacking the non-presentation of the marriage contract, the defense
offered no proof that the admission made by appellant in court as to the fact of her
marriage to the deceased was made through a palpable mistake.

Third, under the circumstances of this case, the specific or direct cause of Ben’s
death -- whether by a gunshot or by beating with a pipe -- has no legal
consequence. As the Court elucidated in its September 29, 2000 Resolution,
“[c]onsidering that the appellant has admitted the fact of killing her husband and
the acts of hitting his nape with a metal pipe and of shooting him at the back of his
head, the Court believes that exhumation is unnecessary, if not immaterial, to
determine which of said acts actually caused the victim’s death.” Determining
which of these admitted acts caused the death is not dispositive of the guilt or
defense of appellant.

Fourth, we cannot fault the trial court for not fully appreciating evidence that Ben
was a drunk, gambler, womanizer and wife-beater. Until this case came to us for
automatic review, appellant had not raised the novel defense of “battered woman
syndrome,” for which such evidence may have been relevant. Her theory of self-
defense was then the crucial issue before the trial court. As will be discussed
shortly, the legal requisites of self-defense under prevailing jurisprudence
ostensibly appear inconsistent with the surrounding facts that led to the death of
the victim. Hence, his personal character, especially his past behavior, did not
constitute vital evidence at the time.

Fifth, the trial court surely committed no error in not requiring testimony from
appellant’s children. As correctly elucidated by the solicitor general, all criminal
actions are prosecuted under the direction and control of the public prosecutor, in
whom lies the discretion to determine which witnesses and evidence are necessary
to present.[20] As the former further points out, neither the trial court nor the
prosecution prevented appellant from presenting her children as witnesses. Thus,
she cannot now fault the lower court for not requiring them to testify.

Finally, merely collateral or corroborative is the matter of whether the flight of

Marivic to Manila and her subsequent apologies to her brother-in-law are indicia of
her guilt or are attempts to save the life of her unborn child. Any reversible error
as to the trial court’s appreciation of these circumstances has little bearing on the
final resolution of the case.

First Legal Issue:

Self-Defense and Defense of a Fetus

Appellant admits killing Ben Genosa but, to avoid criminal liability, invokes self-
defense and/or defense of her unborn child. When the accused admits killing the
victim, it is incumbent upon her to prove any claimed justifying circumstance by
clear and convincing evidence.[21] Well-settled is the rule that in criminal cases,
self-defense (and similarly, defense of a stranger or third person) shifts the burden
of proof from the prosecution to the defense.[22]

The Battered Woman Syndrome

In claiming self-defense, appellant raises the novel theory of the battered woman
syndrome. While new in Philippine jurisprudence, the concept has been recognized
in foreign jurisdictions as a form of self-defense or, at the least, incomplete self-
defense.[23] By appreciating evidence that a victim or defendant is afflicted with the
syndrome, foreign courts convey their “understanding of the justifiably fearful state
of mind of a person who has been cyclically abused and controlled over a period of
time.”[24]

A battered woman has been defined as a woman “who is repeatedly subjected to

any forceful physical or psychological behavior by a man in order to coerce her to
do something he wants her to do without concern for her rights. Battered women
include wives or women in any form of intimate relationship with
men. Furthermore, in order to be classified as a battered woman, the couple must
go through the battering cycle at least twice. Any woman may find herself in an
abusive relationship with a man once. If it occurs a second time, and she remains
in the situation, she is defined as a battered woman.”[25]

Battered women exhibit common personality traits, such as low self-esteem,

traditional beliefs about the home, the family and the female sex role; emotional
dependence upon the dominant male; the tendency to accept responsibility for the
batterer’s actions; and false hopes that the relationship will improve.[26]

More graphically, the battered woman syndrome is characterized by the so-called

“cycle of violence,”[27] which has three phases: (1) the tension-building phase; (2)
the acute battering incident; and (3) the tranquil, loving (or, at least, nonviolent)
phase.[28]

During the tension-building phase, minor battering occurs -- it could be verbal or

slight physical abuse or another form of hostile behavior. The woman usually tries
to pacify the batterer through a show of kind, nurturing behavior; or by simply
staying out of his way. What actually happens is that she allows herself to be
abused in ways that, to her, are comparatively minor. All she wants is to prevent
the escalation of the violence exhibited by the batterer. This wish, however, proves
to be double-edged, because her “placatory” and passive behavior legitimizes his
belief that he has the right to abuse her in the first place.

However, the techniques adopted by the woman in her effort to placate him are not
usually successful, and the verbal and/or physical abuse worsens. Each partner
senses the imminent loss of control and the growing tension and
despair. Exhausted from the persistent stress, the battered woman soon withdraws
emotionally. But the more she becomes emotionally unavailable, the more the
batterer becomes angry, oppressive and abusive. Often, at some unpredictable
point, the violence “spirals out of control” and leads to an acute battering
incident.[29]

The acute battering incident is said to be characterized by brutality,

destructiveness and, sometimes, death. The battered woman deems this incident
as unpredictable, yet also inevitable. During this phase, she has no control; only
the batterer may put an end to the violence. Its nature can be as unpredictable as
the time of its explosion, and so are his reasons for ending it. The battered woman
usually realizes that she cannot reason with him, and that resistance would only
exacerbate her condition.
At this stage, she has a sense of detachment from the attack and the terrible pain,
although she may later clearly remember every detail. Her apparent passivity in
the face of acute violence may be rationalized thus: the batterer is almost always
much stronger physically, and she knows from her past painful experience that it is
futile to fight back. Acute battering incidents are often very savage and out of
control, such that innocent bystanders or intervenors are likely to get hurt.[30]

The final phase of the cycle of violence begins when the acute battering incident
ends. During this tranquil period, the couple experience profound relief. On the
one hand, the batterer may show a tender and nurturing behavior towards his
partner. He knows that he has been viciously cruel and tries to make up for it,
begging for her forgiveness and promising never to beat her again. On the other
hand, the battered woman also tries to convince herself that the battery will never
happen again; that her partner will change for the better; and that this “good,
gentle and caring man” is the real person whom she loves.

A battered woman usually believes that she is the sole anchor of the emotional
stability of the batterer. Sensing his isolation and despair, she feels responsible for
his well-being. The truth, though, is that the chances of his reforming, or seeking
or receiving professional help, are very slim, especially if she remains with
him. Generally, only after she leaves him does he seek professional help as a way
of getting her back. Yet, it is in this phase of remorseful reconciliation that she is
most thoroughly tormented psychologically.

The illusion of absolute interdependency is well-entrenched in a battered woman’s

psyche. In this phase, she and her batterer are indeed emotionally dependent on
each other -- she for his nurturant behavior, he for her forgiveness. Underneath
this miserable cycle of “tension, violence and forgiveness,” each partner may
believe that it is better to die than to be separated. Neither one may really feel
independent, capable of functioning without the other.[31]

History of Abuse
in the Present Case

To show the history of violence inflicted upon appellant, the defense presented
several witnesses. She herself described her heart-rending experience as follows:
“ATTY. TABUCANON

Q How did you describe your marriage with Ben Genosa?

A In the first year, I lived with him happily but in the subsequent year he was cruel to me and a
behavior of habitual drinker.
Q You said that in the subsequent year of your marriage, your husband was abusive to you and
cruel. In what way was this abusive and cruelty manifested to you?

A He always provoke me in everything, he always slap me and sometimes he pinned me down

on the bed and sometimes beat me.

Q How many times did this happen?

A Several times already.

Q What did you do when these things happen to you?

A I went away to my mother and I ran to my father and we separate each other.

Q What was the action of Ben Genosa towards you leaving home?

A He is following me, after that he sought after me.

Q What will happen when he follow you?

A He said he changed, he asked for forgiveness and I was convinced and after that I go to him
and he said ‘sorry’.

Q During those times that you were the recipient of such cruelty and abusive behavior by your
husband, were you able to see a doctor?

A Yes, sir.

Q Who are these doctors?

A The company physician, Dr. Dino Caing, Dr. Lucero and Dra. Cerillo.

xxx xxx xxx

Q You said that you saw a doctor in relation to your injuries?

A Yes, sir.
Q Who inflicted these injuries?

A Of course my husband.

Q You mean Ben Genosa?

A Yes, sir.

xxx xxx xxx

[Court] /to the witness

Q How frequent was the alleged cruelty that you said?

A Everytime he got drunk.

Q No, from the time that you said the cruelty or the infliction of injury inflicted on your
occurred, after your marriage, from that time on, how frequent was the occurrence?

A Everytime he got drunk.

Q Is it daily, weekly, monthly or how many times in a month or in a week?

A Three times a week.

Q Do you mean three times a week he would beat you?

A Not necessarily that he would beat me but sometimes he will just quarrel me.”[32]

Referring to his “Out-Patient Chart”[33] on Marivic Genosa at the Philphos Hospital,

Dr. Dino D. Caing bolstered her foregoing testimony on chronic battery in this
manner:
“Q So, do you have a summary of those six (6) incidents which are found in the chart of your
clinic?

A Yes, sir.

Q Who prepared the list of six (6) incidents, Doctor?

A I did.
Q Will you please read the physical findings together with the dates for the record.

A 1. May 12, 1990 - physical findings are as follows: Hematoma (R) lower eyelid and redness
of eye. Attending physician: Dr. Lucero;

2. March 10, 1992 -Contusion-Hematoma (L) lower arbital area, pain and contusion (R)
breast. Attending physician: Dr. Canora;

3. March 26, 1993 - Abrasion, Furuncle (L) Axilla;

4. August 1, 1994 - Pain, mastitis (L) breast, 2o to trauma. Attending physician: Dr. Caing;

5. April 17, 1995 - Trauma, tenderness (R) Shoulder. Attending physician: Dr. Canora; and

6. June 5, 1995 - Swelling Abrasion (L) leg, multiple contusion Pregnancy. Attending
physician: Dr. Canora.

Q Among the findings, there were two (2) incidents wherein you were the attending physician,
is that correct?

A Yes, sir.

Q Did you actually physical examine the accused?

A Yes, sir.

Q Now, going to your finding no. 3 where you were the one who attended the patient. What do
you mean by abrasion furuncle left axilla?

A Abrasion is a skin wound usually when it comes in contact with something rough substance if
force is applied.

Q What is meant by furuncle axilla?

A It is secondary of the light infection over the abrasion.

Q What is meant by pain mastitis secondary to trauma?

A So, in this 4th episode of physical injuries there is an inflammation of left breast. So, [pain]
meaning there is tenderness. When your breast is traumatized, there is tenderness pain.

Q So, these are objective physical injuries. Doctor?

xxx xxx xxx

Q Were you able to talk with the patient?

A Yes, sir.

Q What did she tell you?

A As a doctor-patient relationship, we need to know the cause of these injuries. And she told
me that it was done to her by her husband.

Q You mean, Ben Genosa?

A Yes, sir.

xxx xxx xxx

ATTY. TABUCANON:

Q By the way Doctor, were you able to physical examine the accused sometime in the month of
November, 1995 when this incident happened?

A As per record, yes.

Q What was the date?

A It was on November 6, 1995.

Q So, did you actually see the accused physically?

A Yes, sir.

Q On November 6, 1995, will you please tell this Honorable Court, was the patient pregnant?

A Yes, sir.

Q Being a doctor, can you more engage at what stage of pregnancy was she?

A Eight (8) months pregnant.

Q So in other words, it was an advance stage of pregnancy?

A Yes, sir.

Q What was your November 6, 1995 examination, was it an examination about her pregnancy
or for some other findings?

A No, she was admitted for hypertension headache which complicates her pregnancy.

Q When you said admitted, meaning she was confined?

A Yes, sir.

Q For how many days?

A One day.

Q Where?

A At PHILPHOS Hospital.

xxx xxx xxx

Q Lets go back to the clinical history of Marivic Genosa. You said that you were able to examine
her personally on November 6, 1995 and she was 8 months pregnant.

What is this all about?

A Because she has this problem of tension headache secondary to hypertension and I think I
have a record here, also the same period from 1989 to 1995, she had a consultation for
twenty-three (23) times.

Q For what?

A Tension headache.

Q Can we say that specially during the latter consultation, that the patient had hypertension?

A The patient definitely had hypertension. It was refractory to our treatment. She does not
response when the medication was given to her, because tension headache is more or less
stress related and emotional in nature.

Q What did you deduce of tension headache when you said is emotional in nature?

A From what I deduced as part of our physical examination of the patient is the family history in
line of giving the root cause of what is causing this disease. So, from the moment you ask to
the patient all comes from the domestic problem.

Q You mean problem in her household?

A Probably.

Q Can family trouble cause elevation of blood pressure, Doctor?

A Yes, if it is emotionally related and stressful it can cause increases in hypertension which is
unfortunately does not response to the medication.

Q In November 6, 1995, the date of the incident, did you take the blood pressure of the
accused?

A On November 6, 1995 consultation, the blood pressure was 180/120.

Q Is this considered hypertension?

A Yes, sir, severe.

Q Considering that she was 8 months pregnant, you mean this is dangerous level of blood
pressure?

A It was dangerous to the child or to the fetus.” [34]

Another defense witness, Teodoro Sarabia, a former neighbor of the Genosas in

Isabel, Leyte, testified that he had seen the couple quarreling several times; and
that on some occasions Marivic would run to him with bruises, confiding that the
injuries were inflicted upon her by Ben.[35]

Ecel Arano also testified[36] that for a number of times she had been asked by
Marivic to sleep at the Genosa house, because the latter feared that Ben would
come home drunk and hurt her. On one occasion that Ecel did sleep over, she was
awakened about ten o’clock at night, because the couple “were very noisy … and I
heard something was broken like a vase.” Then Marivic came running into Ecel’s
room and locked the door. Ben showed up by the window grill atop a chair, scaring
them with a knife.

On the afternoon of November 15, 1995, Marivic again asked her help -- this time
to find Ben -- but they were unable to. They returned to the Genosa home, where
they found him already drunk. Again afraid that he might hurt her, Marivic asked
her to sleep at their house. Seeing his state of drunkenness, Ecel hesitated; and
when she heard the couple start arguing, she decided to leave.

On that same night that culminated in the death of Ben Genosa, at least three other
witnesses saw or heard the couple quarreling.[37] Marivic relates in detail the
following backdrop of the fateful night when life was snuffed out of him, showing in
the process a vivid picture of his cruelty towards her:
“ATTY. TABUCANON:

Q Please tell this Court, can you recall the incident in November 15, 1995 in the evening?

A Whole morning and in the afternoon, I was in the office working then after office hours, I
boarded the service bus and went to Bilwang. When I reached Bilwang, I immediately asked
my son, where was his father, then my second child said, ‘he was not home yet’. I was
worried because that was payday, I was anticipating that he was gambling. So while waiting
for him, my eldest son arrived from school, I prepared dinner for my children.

Q This is evening of November 15, 1995?

A Yes, sir.
Q What time did Ben Genosa arrive?

A When he arrived, I was not there, I was in Isabel looking for him.

Q So when he arrived you were in Isabel looking for him?

A Yes, sir.

Q Did you come back to your house?

A Yes, sir.

Q By the way, where was your conjugal residence situated this time?

A Bilwang.

Q Is this your house or you are renting?

A Renting.

Q What time were you able to come back in your residence at Bilwang?

A I went back around almost 8:00 o’clock.

Q What happened when you arrived in your residence?

A When I arrived home with my cousin Ecel whom I requested to sleep with me at that time
because I had fears that he was again drunk and I was worried that he would again beat me
so I requested my cousin to sleep with me, but she resisted because she had fears that the
same thing will happen again last year.

Q Who was this cousin of yours who you requested to sleep with you?

A Ecel Araño, the one who testified.

Q Did Ecel sleep with you in your house on that evening?

A No, because she expressed fears, she said her father would not allow her because of Ben.

Q During this period November 15, 1995, were you pregnant?

A Yes, 8 months.

Q How advance was your pregnancy?

A Eight (8) months.

Q Was the baby subsequently born?

A Yes, sir.

Q What’s the name of the baby you were carrying at that time?

A Marie Bianca.

Q What time were you able to meet personally your husband?

A Yes, sir.

Q What time?

A When I arrived home, he was there already in his usual behavior.

Q Will you tell this Court what was his disposition?

A He was drunk again, he was yelling in his usual unruly behavior.

Q What was he yelling all about?

A His usual attitude when he got drunk.

Q You said that when you arrived, he was drunk and yelling at you? What else did he do if any?

A He is nagging at me for following him and he dared me to quarrel him.

Q What was the cause of his nagging or quarreling at you if you know?

A He was angry at me because I was following x x x him, looking for him. I was just worried he
might be overly drunk and he would beat me again.

Q You said that he was yelling at you, what else, did he do to you if any?

A He was nagging at me at that time and I just ignore him because I want to avoid trouble for
fear that he will beat me again. Perhaps he was disappointed because I just ignore him of his
provocation and he switch off the light and I said to him, ‘why did you switch off the light
when the children were there.’ At that time I was also attending to my children who were
doing their assignments. He was angry with me for not answering his challenge, so he went
to the kitchen and [got] a bolo and cut the antenna wire to stop me from watching television.

Q What did he do with the bolo?

A He cut the antenna wire to keep me from watching T.V.

Q What else happened after he cut the wire?

A He switch off the light and the children were shouting because they were scared and he was
already holding the bolo.

Q How do you described this bolo?

A 1 1/2 feet.

Q What was the bolo used for usually?

A For chopping meat.

Q You said the children were scared, what else happened as Ben was carrying that bolo?

A He was about to attack me so I run to the room.

Q What do you mean that he was about to attack you?

A When I attempt to run he held my hands and he whirled me and I fell to the bedside.
Q So when he whirled you, what happened to you?

A I screamed for help and then he left.

Q You said earlier that he whirled you and you fell on the bedside?

A Yes, sir.

Q You screamed for help and he left, do you know where he was going?

A Outside perhaps to drink more.

Q When he left what did you do in that particular time?

A I packed all his clothes.

Q What was your reason in packing his clothes?

A I wanted him to leave us.

Q During this time, where were your children, what were their reactions?

A After a couple of hours, he went back again and he got angry with me for packing his clothes,
then he dragged me again of the bedroom holding my neck.

Q You said that when Ben came back to your house, he dragged you? How did he drag you?

COURT INTERPRETER:

The witness demonstrated to the Court by using her right hand flexed forcibly in her front
neck)

A And he dragged me towards the door backward.

ATTY. TABUCANON:

Q Where did he bring you?

A Outside the bedroom and he wanted to get something and then he kept on shouting at me
that ‘you might as well be killed so there will be nobody to nag me.’

Q So you said that he dragged you towards the drawer?

A Yes, sir.

Q What is there in the drawer?

A I was aware that it was a gun.

COURT INTERPRETER:

(At this juncture the witness started crying).

ATTY. TABUCANON:

Q Were you actually brought to the drawer?

A Yes, sir.

Q What happened when you were brought to that drawer?

A He dragged me towards the drawer and he was about to open the drawer but he could not
open it because he did not have the key then he pulled his wallet which contained a blade
about 3 inches long and I was aware that he was going to kill me and I smashed his arm and
then the wallet and the blade fell. The one he used to open the drawer I saw, it was a pipe
about that long, and when he was about to pick-up the wallet and the blade, I smashed him
then I ran to the other room, and on that very moment everything on my mind was to pity on
myself, then the feeling I had on that very moment was the same when I was admitted in
PHILPHOS Clinic, I was about to vomit.

COURT INTERPRETER:

(The witness at this juncture is crying intensely).

xxx xxx xxx

ATTY. TABUCANON:

Q Talking of drawer, is this drawer outside your room?

A Outside.

Q In what part of the house?

A Dining.

Q Where were the children during that time?

A My children were already asleep.

Q You mean they were inside the room?

A Yes, sir.

Q You said that he dropped the blade, for the record will you please describe this blade about 3
inches long, how does it look like?

A Three (3) inches long and 1/2 inch wide.

Q Is it a flexible blade?

A It’s a cutter.

Q How do you describe the blade, is it sharp both edges?

A Yes, because he once used it to me.

Q How did he do it?

A He wanted to cut my throat.

Q With the same blade?

A Yes, sir, that was the object used when he intimidate me.”[38]
In addition, Dra. Natividad Dayan was called by the RTC to testify as an expert
witness to assist it in understanding the psyche of a battered person. She had met
with Marivic Genosa for five sessions totaling about seventeen hours. Based on
their talks, the former briefly related the latter’s ordeal to the court a quo as
follows:
“Q: What can you say, that you found Marivic as a battered wife? Could you in layman’s term
describe to this Court what her life was like as said to you?

A: What I remember happened then was it was more than ten years, that she was suffering
emotional anguish. There were a lot of instances of abuses, to emotional abuse, to verbal
abuse and to physical abuse. The husband had a very meager income, she was the one who
was practically the bread earner of the family. The husband was involved in a lot of vices,
going out with barkadas, drinking, even womanizing being involved in cockfight and going
home very angry and which will trigger a lot of physical abuse. She also had the experience a
lot of taunting from the husband for the reason that the husband even accused her of
infidelity, the husband was saying that the child she was carrying was not his own. So she was
very angry, she was at the same time very depressed because she was also aware, almost like
living in purgatory or even hell when it was happening day in and day out.”[39]

In cross-examining Dra. Dayan, the public prosecutor not merely elicited, but
wittingly or unwittingly put forward, additional supporting evidence as shown
below:
“Q In your first encounter with the appellant in this case in 1999, where you talked to her about
three hours, what was the most relevant information did you gather?

A The most relevant information was the tragedy that happened. The most important
information were escalating abuses that she had experienced during her marital life.

Q Before you met her in 1999 for three hours, we presume that you already knew of the facts of
the case or at least you have substantial knowledge of the facts of the case?

A I believe I had an idea of the case, but I do not know whether I can consider them as
substantial.

xxx xxx xxx

Q Did you gather an information from Marivic that on the side of her husband they were fond of
battering their wives?

A I also heard that from her?

Q You heard that from her?

A Yes, sir.

Q Did you ask for a complete example who are the relatives of her husband that were fond of
battering their wives?

A What I remember that there were brothers of her husband who are also battering their wives.

Q Did she not inform you that there was an instance that she stayed in a hotel in Ormoc where
her husband followed her and battered [her] several times in that room?

A She told me about that.

Q Did she inform you in what hotel in Ormoc?

A Sir, I could not remember but I was told that she was battered in that room.

Q Several times in that room?

A Yes, sir. What I remember was that there is no problem about being battered, it really
happened.

Q Being an expert witness, our jurisprudence is not complete on saying this matter. I think that
is the first time that we have this in the Philippines, what is your opinion?

A Sir, my opinion is, she is really a battered wife and in this kind happened, it was really a self-
defense. I also believe that there had been provocation and I also believe that she became a
disordered person. She had to suffer anxiety reaction because of all the battering that
happened and so she became an abnormal person who had lost she’s not during the time and
that is why it happened because of all the physical battering, emotional battering, all the
psychological abuses that she had experienced from her husband.

Q I do believe that she is a battered wife. Was she extremely battered?

A Sir, it is an extreme form of battering. Yes.[40]

Parenthetically, the credibility of appellant was demonstrated as follows:

“Q And you also said that you administered [the] objective personality test, what x x x [is this] all
about?
A The objective personality test is the Millon Clinical Multiaxial Inventory. The purpose of that
test is to find out about the lying prone[ne]ss of the person.

Q What do you mean by that?

A Meaning, am I dealing with a client who is telling me the truth, or is she someone who can
exaggerate or x x x [will] tell a lie[?]

Q And what did you discover on the basis of this objective personality test?

A She was a person who passed the honesty test. Meaning she is a person that I can trust. That
the data that I’m gathering from her are the truth.”[41]

The other expert witness presented by the defense, Dr. Alfredo Pajarillo, testified
on his Psychiatric Report,[42] which was based on his interview and examination of
Marivic Genosa. The Report said that during the first three years of her marriage to
Ben, everything looked good -- the atmosphere was fine, normal and happy -- until
“Ben started to be attracted to other girls and was also enticed in[to] gambling[,]
especially cockfighting. x x x. At the same time Ben was often joining
his barkada in drinking sprees.”

The drinking sprees of Ben greatly changed the attitude he showed toward his
family, particularly to his wife. The Report continued: “At first, it was verbal and
emotional abuses but as time passed, he became physically abusive. Marivic
claimed that the viciousness of her husband was progressive every time he got
drunk. It was a painful ordeal Marivic had to anticipate whenever she suspected
that her husband went for a drinking [spree]. They had been married for twelve
years[;] and practically more than eight years, she was battered and maltreated
relentlessly and mercilessly by her husband whenever he was drunk.”

Marivic sought the help of her mother-in-law, but her efforts were in vain. Further
quoting from the Report, “[s]he also sought the advice and help of close relatives
and well-meaning friends in spite of her feeling ashamed of what was happening to
her. But incessant battering became more and more frequent and more severe. x
x x.”[43]

From the totality of evidence presented, there is indeed no doubt in the Court’s
mind that Appellant Marivic Genosa was a severely abused person.

Effect of Battery on Appellant

Because of the recurring cycles of violence experienced by the abused woman, her
state of mind metamorphoses. In determining her state of mind, we cannot rely
merely on the judgment of an ordinary, reasonable person who is evaluating the
events immediately surrounding the incident. A Canadian court has aptly pointed
out that expert evidence on the psychological effect of battering on wives and
common law partners are both relevant and necessary. “How can the mental state
of the appellant be appreciated without it? The average member of the public may
ask: Why would a woman put up with this kind of treatment? Why should she
continue to live with such a man? How could she love a partner who beat her to
the point of requiring hospitalization? We would expect the woman to pack her
bags and go. Where is her self-respect? Why does she not cut loose and make a
new life for herself? Such is the reaction of the average person confronted with the
so-called ‘battered wife syndrome.’”[44]

To understand the syndrome properly, however, one’s viewpoint should not be

drawn from that of an ordinary, reasonable person. What goes on in the mind of a
person who has been subjected to repeated, severe beatings may not be consistent
with -- nay, comprehensible to -- those who have not been through a similar
experience. Expert opinion is essential to clarify and refute common myths and
misconceptions about battered women.[45]

The theory of BWS formulated by Lenore Walker, as well as her research on

domestic violence, has had a significant impact in the United States and the United
Kingdom on the treatment and prosecution of cases, in which a battered woman is
charged with the killing of her violent partner. The psychologist explains that the
cyclical nature of the violence inflicted upon the battered woman immobilizes the
latter’s “ability to act decisively in her own interests, making her feel trapped in the
relationship with no means of escape.”[46] In her years of research, Dr. Walker
found that “the abuse often escalates at the point of separation and battered
women are in greater danger of dying then.”[47]

Corroborating these research findings, Dra. Dayan said that “the battered woman
usually has a very low opinion of herself. She has x x x self-defeating and self-
sacrificing characteristics. x x x [W]hen the violence would happen, they usually
think that they provoke[d] it, that they were the one[s] who precipitated the
violence[; that] they provoke[d] their spouse to be physically, verbally and even
sexually abusive to them.”[48]

According to Dra. Dayan, there are a lot of reasons why a battered woman does not
readily leave an abusive partner -- poverty, self-blame and guilt arising from the
latter’s belief that she provoked the violence, that she has an obligation to keep the
family intact at all cost for the sake of their children, and that she is the only hope
for her spouse to change.[49]

The testimony of another expert witness, Dr. Pajarillo, is also helpful. He had
previously testified in suits involving violent family relations, having evaluated
“probably ten to twenty thousand” violent family disputes within the Armed Forces
of the Philippines, wherein such cases abounded. As a result of his experience with
domestic violence cases, he became a consultant of the Battered Woman Office in
Quezon City. As such, he got involved in about forty (40) cases of severe domestic
violence, in which the physical abuse on the woman would sometimes even lead to
her loss of consciousness.[50]

Dr. Pajarillo explained that “overwhelming brutality, trauma” could result in

posttraumatic stress disorder, a form of “anxiety neurosis or neurologic
anxietism.”[51] After being repeatedly and severely abused, battered persons “may
believe that they are essentially helpless, lacking power to change their situation. x
x x [A]cute battering incidents can have the effect of stimulating the development
of coping responses to the trauma at the expense of the victim’s ability to muster
an active response to try to escape further trauma. Furthermore, x x x the victim
ceases to believe that anything she can do will have a predictable positive
effect.”[52]

A study[53] conducted by Martin Seligman, a psychologist at the University of

Pennsylvania, found that “even if a person has control over a situation, but believes
that she does not, she will be more likely to respond to that situation with coping
responses rather than trying to escape.” He said that it was the cognitive aspect --
the individual’s thoughts -- that proved all-important. He referred to this
phenomenon as “learned helplessness.” “[T]he truth or facts of a situation turn out
to be less important than the individual’s set of beliefs or perceptions concerning
the situation. Battered women don’t attempt to leave the battering situation, even
when it may seem to outsiders that escape is possible, because they cannot predict
their own safety; they believe that nothing they or anyone else does will alter their
terrible circumstances.”[54]

Thus, just as the battered woman believes that she is somehow responsible for the
violent behavior of her partner, she also believes that he is capable of killing her,
and that there is no escape.[55] Battered women feel unsafe, suffer from pervasive
anxiety, and usually fail to leave the relationship.[56] Unless a shelter is available,
she stays with her husband, not only because she typically lacks a means of self-
support, but also because she fears that if she leaves she would be found and hurt
even more.[57]

In the instant case, we meticulously scoured the records for specific evidence
establishing that appellant, due to the repeated abuse she had suffered from her
spouse over a long period of time, became afflicted with the battered woman
syndrome. We, however, failed to find sufficient evidence that would support such
a conclusion. More specifically, we failed to find ample evidence that would confirm
the presence of the essential characteristics of BWS.

The defense fell short of proving all three phases of the “cycle of violence”
supposedly characterizing the relationship of Ben and Marivic Genosa. No doubt
there were acute battering incidents. In relating to the court a quo how the fatal
incident that led to the death of Ben started, Marivic perfectly described the
tension-building phase of the cycle. She was able to explain in adequate detail the
typical characteristics of this stage. However, that single incident does not prove
the existence of the syndrome. In other words, she failed to prove that in at least
another battering episode in the past, she had gone through a similar pattern.

How did the tension between the partners usually arise or build up prior to acute
battering? How did Marivic normally respond to Ben’s relatively minor
abuses? What means did she employ to try to prevent the situation from
developing into the next (more violent) stage?

Neither did appellant proffer sufficient evidence in regard to the third phase of the
cycle. She simply mentioned that she would usually run away to her mother’s or
father’s house;[58] that Ben would seek her out, ask for her forgiveness and promise
to change; and that believing his words, she would return to their common abode.

Did she ever feel that she provoked the violent incidents between her and her
spouse? Did she believe that she was the only hope for Ben to reform? And that
she was the sole support of his emotional stability and well-being? Conversely, how
dependent was she on him? Did she feel helpless and trapped in their
relationship? Did both of them regard death as preferable to separation?

In sum, the defense failed to elicit from appellant herself her factual experiences
and thoughts that would clearly and fully demonstrate the essential characteristics
of the syndrome.

The Court appreciates the ratiocinations given by the expert witnesses for the
defense. Indeed, they were able to explain fully, albeit merely theoretically and
scientifically, how the personality of the battered woman usually evolved or
deteriorated as a result of repeated and severe beatings inflicted upon her by her
partner or spouse. They corroborated each other’s testimonies, which were culled
from their numerous studies of hundreds of actual cases. However, they failed to
present in court the factual experiences and thoughts that appellant had related to
them -- if at all --based on which they concluded that she had BWS.

We emphasize that in criminal cases, all the elements of a modifying circumstance

must be proven in order to be appreciated. To repeat, the records lack supporting
evidence that would establish all the essentials of the battered woman syndrome as
manifested specifically in the case of the Genosas.

BWS as Self-Defense
In any event, the existence of the syndrome in a relationship does not in itself
establish the legal right of the woman to kill her abusive partner. Evidence must
still be considered in the context of self-defense.[59]

From the expert opinions discussed earlier, the Court reckons further that crucial to
the BWS defense is the state of mind of the battered woman at the time of the
offense[60] -- she must have actually feared imminent harm from her batterer and
honestly believed in the need to kill him in order to save her life.

Settled in our jurisprudence, however, is the rule that the one who resorts to self-
defense must face a real threat on one’s life; and the peril sought to be avoided
must be imminent and actual, not merely imaginary.[61] Thus, the Revised Penal
Code provides the following requisites and effect of self-defense:[62]

“Art. 11. Justifying circumstances. -- The following do not incur any criminal
liability:

“1. Anyone who acts in defense of his person or rights, provided that the following
circumstances concur;

First. Unlawful aggression;

Second. Reasonable necessity of the means employed to prevent or repel it;
Third. Lack of sufficient provocation on the part of the person defending
himself.”

Unlawful aggression is the most essential element of self-defense.[63] It

presupposes actual, sudden and unexpected attack -- or an imminent danger
thereof -- on the life or safety of a person.[64] In the present case, however,
according to the testimony of Marivic herself, there was a sufficient time interval
between the unlawful aggression of Ben and her fatal attack upon him. She had
already been able to withdraw from his violent behavior and escape to their
children’s bedroom. During that time, he apparently ceased his attack and went to
bed. The reality or even the imminence of the danger he posed had ended
altogether. He was no longer in a position that presented an actual threat on her
life or safety.

Had Ben still been awaiting Marivic when she came out of their children’s bedroom -
- and based on past violent incidents, there was a great probability that he would
still have pursued her and inflicted graver harm --then, the imminence of the real
threat upon her life would not have ceased yet. Where the brutalized person is
already suffering from BWS, further evidence of actual physical assault at the time
of the killing is not required. Incidents of domestic battery usually have a
predictable pattern. To require the battered person to await an obvious, deadly
attack before she can defend her life “would amount to sentencing her to ‘murder
by installment.’”[65] Still, impending danger (based on the conduct of the victim in
previous battering episodes) prior to the defendant’s use of deadly force must be
shown. Threatening behavior or communication can satisfy the required imminence
of danger.[66] Considering such circumstances and the existence of BWS, self-
defense may be appreciated.

We reiterate the principle that aggression, if not continuous, does not warrant self-
defense.[67] In the absence of such aggression, there can be no self-defense --
complete or incomplete -- on the part of the victim.[68] Thus, Marivic’s killing of Ben
was not completely justified under the circumstances.

Mitigating Circumstances Present

In any event, all is not lost for appellant. While she did not raise any other
modifying circumstances that would alter her penalty, we deem it proper to
evaluate and appreciate in her favor circumstances that mitigate her criminal
liability. It is a hornbook doctrine that an appeal in a criminal case opens it wholly
for review on any issue, including that which has not been raised by the parties.[69]

From several psychological tests she had administered to Marivic, Dra. Dayan, in
her Psychological Evaluation Report dated November 29, 2000, opined as follows:

“This is a classic case of a Battered Woman Syndrome. The repeated battering

Marivic experienced with her husband constitutes a form of [cumulative]
provocation which broke down her psychological resistance and natural self-
control. It is very clear that she developed heightened sensitivity to sight of
impending danger her husband posed continuously. Marivic truly experienced at
the hands of her abuser husband a state of psychological paralysis which can only
be ended by an act of violence on her part.” [70]

Dr. Pajarillo corroborates the findings of Dra. Dayan. He explained that the effect
of “repetitious pain taking, repetitious battering, [and] repetitious maltreatment” as
well as the severity and the prolonged administration of the battering is
posttraumatic stress disorder.[71] Expounding thereon, he said:
“Q What causes the trauma, Mr. Witness?

A What causes the trauma is probably the repetitious battering. Second, the severity of the
battering. Third, the prolonged administration of battering or the prolonged commission of
the battering and the psychological and constitutional stamina of the victim and another one
is the public and social support available to the victim. If nobody is interceding, the more she
will go to that disorder....

xxx xxx xxx

Q You referred a while ago to severity. What are the qualifications in terms of severity of the
postraumatic stress disorder, Dr. Pajarillo?

A The severity is the most severe continuously to trig[g]er this post[t]raumatic stress disorder is
injury to the head, banging of the head like that. It is usually the very very severe stimulus
that precipitate this post[t]raumatic stress disorder. Others are suffocating the victim like
holding a pillow on the face, strangulating the individual, suffocating the individual, and
boxing the individual. In this situation therefore, the victim is heightened to painful stimulus,
like for example she is pregnant, she is very susceptible because the woman will not only
protect herself, she is also to protect the fetus. So the anxiety is heightened to the end [sic]
degree.

Q But in terms of the gravity of the disorder, Mr. Witness, how do you classify?

A We classify the disorder as [acute], or chronic or delayed or [a]typical.

Q Can you please describe this pre[-]classification you called delayed or [atypical]?

A The acute is the one that usually require only one battering and the individual will manifest
now a severe emotional instability, higher irritability remorse, restlessness, and fear and
probably in most [acute] cases the first thing will be happened to the individual will be
thinking of suicide.

Q And in chronic cases, Mr. Witness?

A The chronic cases is this repetitious battering, repetitious maltreatment, any prolonged, it is
longer than six (6) months. The [acute] is only the first day to six (6) months. After this six (6)
months you become chronic. It is stated in the book specifically that after six (6) months is
chronic. The [a]typical one is the repetitious battering but the individual who is abnormal and
then become normal. This is how you get neurosis from neurotic personality of these cases of
post[t]raumatic stress disorder.” [72]

Answering the questions propounded by the trial judge, the expert witness clarified
further:
“Q But just the same[,] neurosis especially on battered woman syndrome x x x affects x x x his
or her mental capacity?

A Yes, your Honor.

Q As you were saying[,] it x x x obfuscated her rationality?

A Of course obfuscated.”[73]
In sum, the cyclical nature and the severity of the violence inflicted upon appellant
resulted in “cumulative provocation which broke down her psychological resistance
and natural self-control,” “psychological paralysis,” and “difficulty in concentrating
or impairment of memory.”

Based on the explanations of the expert witnesses, such manifestations were

analogous to an illness that diminished the exercise by appellant of her will power
without, however, depriving her of consciousness of her acts. There was, thus, a
resulting diminution of her freedom of action, intelligence or intent. Pursuant to
paragraphs 9[74] and 10[75] of Article 13 of the Revised Penal Code, this
circumstance should be taken in her favor and considered as a mitigating factor. [76]

In addition, we also find in favor of appellant the extenuating circumstance of

having acted upon an impulse so powerful as to have naturally produced passion
and obfuscation. It has been held that this state of mind is present when a crime is
committed as a result of an uncontrollable burst of passion provoked by prior unjust
or improper acts or by a legitimate stimulus so powerful as to overcome
reason.[77] To appreciate this circumstance, the following requisites should concur:
(1) there is an act, both unlawful and sufficient to produce such a condition of
mind; and (2) this act is not far removed from the commission of the crime by a
considerable length of time, during which the accused might recover her normal
equanimity.[78]

Here, an acute battering incident, wherein Ben Genosa was the unlawful aggressor,
preceded his being killed by Marivic. He had further threatened to kill her while
dragging her by the neck towards a cabinet in which he had kept a gun. It should
also be recalled that she was eight months pregnant at the time. The attempt on
her life was likewise on that of her fetus.[79] His abusive and violent acts, an
aggression which was directed at the lives of both Marivic and her unborn child,
naturally produced passion and obfuscation overcoming her reason. Even though
she was able to retreat to a separate room, her emotional and mental state
continued. According to her, she felt her blood pressure rise; she was filled with
feelings of self-pity and of fear that she and her baby were about to die. In a fit of
indignation, she pried open the cabinet drawer where Ben kept a gun, then she
took the weapon and used it to shoot him.

The confluence of these events brings us to the conclusion that there was no
considerable period of time within which Marivic could have recovered her normal
equanimity. Helpful is Dr. Pajarillo’s testimony[80] that with “neurotic anxiety” -- a
psychological effect on a victim of “overwhelming brutality [or] trauma” -- the
victim relives the beating or trauma as if it were real, although she is not actually
being beaten at the time. She cannot control “re-experiencing the whole thing, the
most vicious and the trauma that she suffered.” She thinks “of nothing but the
suffering.” Such reliving which is beyond the control of a person under similar
circumstances, must have been what Marivic experienced during the brief time
interval and prevented her from recovering her normal equanimity. Accordingly,
she should further be credited with the mitigating circumstance of passion and
obfuscation.

It should be clarified that these two circumstances --psychological paralysis as well

as passion and obfuscation -- did not arise from the same set of facts.

On the one hand, the first circumstance arose from the cyclical nature and the
severity of the battery inflicted by the batterer-spouse upon appellant. That is, the
repeated beatings over a period of time resulted in her psychological paralysis,
which was analogous to an illness diminishing the exercise of her will power without
depriving her of consciousness of her acts.

The second circumstance, on the other hand, resulted from the violent aggression
he had inflicted on her prior to the killing. That the incident occurred when she was
eight months pregnant with their child was deemed by her as an attempt not only
on her life, but likewise on that of their unborn child. Such perception naturally
produced passion and obfuscation on her part.

Second Legal Issue:

Treachery

There is treachery when one commits any of the crimes against persons by
employing means, methods or forms in the execution thereof without risk to oneself
arising from the defense that the offended party might make.[81] In order to qualify
an act as treacherous, the circumstances invoked must be proven as indubitably as
the killing itself; they cannot be deduced from mere inferences, or conjectures,
which have no place in the appreciation of evidence.[82] Because of the gravity of
the resulting offense, treachery must be proved as conclusively as the killing
itself.[83]

Ruling that treachery was present in the instant case, the trial court imposed the
penalty of death upon appellant. It inferred this qualifying circumstances merely
from the fact that the lifeless body of Ben had been found lying in bed with an
“open, depressed, circular” fracture located at the back of his head. As to exactly
how and when he had been fatally attacked, however, the prosecution failed to
establish indubitably. Only the following testimony of appellant leads us to the
events surrounding his death:
“Q You said that when Ben came back to your house, he dragged you? How did he drag you?
COURT:

The witness demonstrated to the Court by using her right hand flexed forcibly in her front
neck)

A And he dragged me towards the door backward.

ATTY. TABUCANON:

Q Where did he bring you?

A Outside the bedroom and he wanted to get something and then he kept on shouting at me
that ‘you might as well be killed so there will be nobody to nag me’

Q So you said that he dragged you towards the drawer?

A Yes, sir.

Q What is there in the drawer?

A I was aware that it was a gun.

COURT INTERPRETER

(At this juncture the witness started crying)

ATTY. TABUCANON:

Q Were you actually brought to the drawer?

A Yes, sir.

Q What happened when you were brought to that drawer?

A He dragged me towards the drawer and he was about to open the drawer but he could not
open it because he did not have the key then he pulled his wallet which contained a blade
about 3 inches long and I was aware that he was going to kill me and I smashed his arm and
then the wallet and the blade fell. The one he used to open the drawer I saw, it was a pipe
about that long, and when he was about to pick-up the wallet and the blade, I smashed him
then I ran to the other room, and on that very moment everything on my mind was to pity on
 myself, then the feeling I had on that very moment was the same when I was admitted in
PHILPHOS Clinic, I was about to vomit.

COURT INTERPRETER

(The witness at this juncture is crying intensely).

xxx xxx xxx

Q You said that he dropped the blade, for the record will you please describe this blade about 3
inches long, how does it look like?

A Three (3) inches long and ½ inch wide.

Q It is a flexible blade?

A It’s a cutter.

Q How do you describe the blade, is it sharp both edges?

A Yes, because he once used it to me.

Q How did he do it?

A He wanted to cut my throat.

Q With the same blade?

A Yes, sir, that was the object used when he intimidate me.

xxx xxx xxx

ATTY. TABUCANON:

Q You said that this blade fell from his grip, is it correct?

A Yes, because I smashed him.

Q What happened?

A Ben tried to pick-up the wallet and the blade, I pick-up the pipe and I smashed him and I ran
to the other room.

Q What else happened?

A When I was in the other room, I felt the same thing like what happened before when I was
admitted in PHILPHOS Clinic, I was about to vomit. I know my blood pressure was raised. I
was frightened I was about to die because of my blood pressure.

COURT INTERPRETER:

(Upon the answer of the witness getting the pipe and smashed him, the witness at the same
time pointed at the back of her neck or the nape).

ATTY. TABUCANON:
Q You said you went to the room, what else happened?

A Considering all the physical sufferings that I’ve been through with him, I took pity on myself
and I felt I was about to die also because of my blood pressure and the baby, so I got that gun
and I shot him.

COURT

/to Atty. Tabucanon

Q You shot him?

A Yes, I distorted the drawer.”[84]

The above testimony is insufficient to establish the presence of treachery. There is

no showing of the victim’s position relative to appellant’s at the time of the
shooting. Besides, equally axiomatic is the rule that when a killing is preceded by
an argument or a quarrel, treachery cannot be appreciated as a qualifying
circumstance, because the deceased may be said to have been forewarned and to
have anticipated aggression from the assailant.[85]

Moreover, in order to appreciate alevosia, the method of assault adopted by the

aggressor must have been consciously and deliberately chosen for the specific
purpose of accomplishing the unlawful act without risk from any defense that might
be put up by the party attacked.[86] There is no showing, though, that the present
appellant intentionally chose a specific means of successfully attacking her husband
without any risk to herself from any retaliatory act that he might make. To the
contrary, it appears that the thought of using the gun occurred to her only at about
the same moment when she decided to kill her batterer-spouse. In the absence of
any convincing proof that she consciously and deliberately employed the method by
which she committed the crime in order to ensure its execution, this Court resolves
the doubt in her favor.[87]

Proper Penalty

The penalty for parricide imposed by Article 246 of the Revised Penal Code
is reclusion perpetua to death. Since two mitigating circumstances and no
aggravating circumstance have been found to have attended the commission of the
offense, the penalty shall be lowered by one (1) degree, pursuant to Article 64 of
paragraph 5[88] of the same Code.[89] The penalty of reclusion temporal in its
medium period is imposable, considering that two mitigating circumstances are to
be taken into account in reducing the penalty by one degree, and no other
modifying circumstances were shown to have attended the commission of the
offense.[90] Under the Indeterminate Sentence Law, the minimum of the penalty
shall be within the range of that which is next lower in degree -- prision mayor --
and the maximum shall be within the range of the medium period of reclusion
temporal.

Considering all the circumstances of the instant case, we deem it just and proper to
impose the penalty of prision mayor in its minimum period, or six (6) years and one
(1) day in prison as minimum; to reclusion temporal in its medium period, or 14
years 8 months and 1 day as maximum. Noting that appellant has already served
the minimum period, she may now apply for and be released from detention on
parole.[91]

Epilogue

Being a novel concept in our jurisprudence, the battered woman syndrome was
neither easy nor simple to analyze and recognize vis-à-vis the given set of facts in
the present case. The Court agonized on how to apply the theory as a modern-day
reality. It took great effort beyond the normal manner in which decisions are made
-- on the basis of existing law and jurisprudence applicable to the proven facts. To
give a just and proper resolution of the case, it endeavored to take a good look at
studies conducted here and abroad in order to understand the intricacies of the
syndrome and the distinct personality of the chronically abused person. Certainly,
the Court has learned much. And definitely, the solicitor general and appellant’s
counsel, Atty. Katrina Legarda, have helped it in such learning process.

While our hearts empathize with recurrently battered persons, we can only work
within the limits of law, jurisprudence and given facts. We cannot make or invent
them. Neither can we amend the Revised Penal Code. Only Congress, in its
wisdom, may do so.

The Court, however, is not discounting the possibility of self-defense arising from
the battered woman syndrome. We now sum up our main points. First, each of the
phases of the cycle of violence must be proven to have characterized at least two
battering episodes between the appellant and her intimate partner. Second, the
final acute battering episode preceding the killing of the batterer must have
produced in the battered person’s mind an actual fear of an imminent harm from
her batterer and an honest belief that she needed to use force in order to save her
life. Third, at the time of the killing, the batterer must have posed probable -- not
necessarily immediate and actual -- grave harm to the accused, based on the
history of violence perpetrated by the former against the latter. Taken altogether,
these circumstances could satisfy the requisites of self-defense. Under the existing
facts of the present case, however, not all of these elements were duly established.

WHEREFORE, the conviction of Appellant Marivic Genosa for parricide is

hereby AFFIRMED. However, there being two (2) mitigating circumstances and no
aggravating circumstance attending her commission of the offense, her penalty
is REDUCED to six (6) years and one (1) day of prision mayor as minimum; to 14
years, 8 months and 1 day of reclusion temporal as maximum.

Inasmuch as appellant has been detained for more than the minimum penalty
hereby imposed upon her, the director of the Bureau of Corrections may
immediately RELEASE her from custody upon due determination that she is eligible
for parole, unless she is being held for some other lawful cause. Costs de oficio.

SO ORDERED.

[ G.R. No. 160341, October 19, 2004 ]

EXEQUIEL SENOJA, PETITIONER, VS. PEOPLE OF THE
PHILIPPINES, RESPONDENT.

DECISION

CALLEJO, SR., J.:

Before us is a petition for review on certiorari of the Decision[1] of the Court of

Appeals (CA) in People v. Exequiel Senoja, docketed as CA-G.R. CR No. 26564,
affirming with modification the Decision[2] of the Regional Trial Court (RTC) of Baler,
Aurora, Branch 96, in Criminal Case No. 2259, for homicide.
The Case For the People

As culled by the Office of the Solicitor General (OSG) in its comment on the
petition, the case stemmed from the following:

1. On April 16, 1997, petitioner Exequiel Senoja, Fidel Senoja, Jose

Calica, and Miguel Lumasac were drinking gin in the hut of Crisanto
Reguyal in Barangay Zarah, San Luis, Aurora. An angry Leon Lumasac
suddenly arrived at the said place, holding a bolo in his right hand and
looking for his brother Miguel. Petitioner and Jose tried to pacify Leon.
But when petitioner approached Leon, the latter tried to hack him so
he embraced Leon and Jose took Leon’s bolo. Then, Leon and
petitioner talked things out and later reconciled (pp. 2-4, TSN,
November 16, 1998; pp. 2-4, TSN, August 30, 2002; p. 2, TSN, April
21, 1998; p. 5, TSN, March 14, 2001; p. 2, CA Decision).

2. Subsequently, Leon walked out of Crisanto’s hut followed by petitioner.

Suddenly, about ten meters from the hut, petitioner stabbed Leon at
the back. When Leon turned around, petitioner continued stabbing him
until he fell to the ground. Then, petitioner ran towards the barangay
road and threw away the “kolonial” knife he used in stabbing Leon.
The latter died on the spot (pp. 2-6, TSN, November 22, 2000; p. 5,
TSN, August 30, 2002; p. 3, CA Decision).

3. Dr. Pura Deveza Valenzuela-Uy, San Luis Municipal Health Officer,

examined the cadaver of Leon and found multiple lesions on his body
and five fatal wounds on his chest. Dr. Uy issued a medico-legal report
and death certificate (Exhibits A and B, pp. 13-14, Records; pp. 3-5,
TSN, November 20, 1997).[3]

On August 13, 1997, an Information was filed charging petitioner Exequiel Senoja
with homicide, the accusatory portion of which reads:
That on April 16, 1997 at around 11 o’clock in the morning in Barangay Zarah, San
Luis, Aurora, Philippines, and within the jurisdiction of this Honorable Court, the
said accused, did then and there, willfully, unlawfully, and feloniously, with intent to
kill, attack, assault, and use personal violence upon the person of one Leon
Lumasac by then and there stabbing him with a bladed weapon locally known as
“kolonyal” at the different parts of his body thereby inflicting upon the latter mortal
stab wounds which were the direct and immediate cause of his death thereafter.

CONTRARY TO LAW.[4]
The petitioner admitted killing the victim but invoked the affirmative defense of
self-defense. His version of the fatal incident is set forth in his petition at bar:

1. On April 16, 1997 at about 11 o’clock in the morning, Crisanto

Reguyal, Fidel Senoja, Jose Calica, Miguel Lumasac, and Exequiel
Senoja were in the hut of Crisanto Reguyal in Barangay Zarah, San
Luis, Aurora, drinking gin;
 2. Leon Lumasac suddenly arrived holding a bolo and hacked the
doorpost of Crisanto’s hut, angrily demanding for his brother, Miguel
Lumasac, whom he suspected of drying up the ricefield he was
plowing;

3. At this time, Miguel Lumasac was no longer inside the hut but fetching
water;

4. To prevent Leon Lumasac from entering the hut, Exequiel Senoja

(appellant) and Jose Calica stood by the door while simultaneously
trying to pacify Leon Lumasac;

5. Exequiel Senoja with a knife then went outside and tried to pacify Leon
Lumasac but the latter angered by the gestures of the former tried to
hack Exequiel Senoja;

6. To avoid any injury, Exequiel Senoja embraced Leon which gave an

opportunity to disarm the duo. Jose Calica got the bolo of Leon and
threw it away while Fidel Senoja took the “colonial” knife of Exequiel;

7. Jose Calica and Fidel Senoja were able to pacify Leon Lumasac so they
invited him to get inside the hut. Inside the hut, Leon Lumasac tried to
box Fidel Senoja for siding with his brother, Miguel, but was prevented
by Exequiel Senoja who held Leon’s hands;

8. After a while, Leon Lumasac left but returned and angrily demanded
for his bolo. Jose Calica gave his own bolo with a sabbard to replace
the bolo of Leon which he threw away;

9. With Jose Calica’s bolo in him, Leon Lumasac left but only after leaving
a threat that something will happen to Exequiel Senoja for siding with
his brother;

10.After walking for about 10 meters away from the hut, Leon Lumasac
turned around and saw Exequiel Senoja on his way home following
him;

11.Leon Lumasac walked back to meet Exequiel Senoja and upon

reaching him, the former suddenly and treacherously hacked the latter
at the left side of his head and right thigh;

12.Unable to evade the treacherous attack by Leon Lumasac who

persisted in his criminal design, Exequiel Senoja drew his “colonial”
knife and stabbed Leon Lumasac in self-defense, inflicting upon him
multiple wounds which caused his death.[5]

On June 7, 2002, the trial court rendered judgment against the petitioner, finding
him guilty beyond reasonable doubt of the crime charged. The fallo of the decision
reads:
WHEREFORE, premises considered, this Court finds accused Exequiel Senoja
GUILTY beyond reasonable doubt of the crime of Homicide for the death of victim
Leon Lumasac and hereby sentences him, applying Article 64, paragraph 1 of the
Revised Penal Code and Section 1 of the Indeterminate Sentence Law, (a) to suffer
the penalty of twelve (12) years of prision mayor as minimum to seventeen (17)
years and four (4) months of reclusion temporal as maximum; (b) to pay the heirs
of the victim the amount of Fifteen (sic) Thousand Pesos (Php 50,000.00) by way of
civil indemnity; and (c) to pay the costs.

SO ORDERED.[6]
In due course, the petitioner appealed the decision to the CA which rendered
judgment affirming, with modification, the decision of the RTC. The petitioner now
seeks relief from this Court, contending that:
The Honorable Court of Appeals failed to appreciate vital facts which, if considered,
would probably alter the result of this case on appeal finding appellant’s plea of
self-defense credible.[7]
The petitioner faults the CA for its analysis of his testimony, as follows:
The injuries suffered by the petitioner at the left side of his head and right thigh
was confirmed by Dr. Rodolfo Eligio in open court. The relative positions of the
wounds clearly show that the drunken Leon Lumasac brandished and executed
several hacking blows against Exequiel Senoja before he was stabbed, neutralized
and finished by the latter. It would be physically and highly improbable for the
victim if he was treacherously hit at the left buttock and as he turned around to
face the petitioner, the latter stabbed him successively and without let-up hitting
him 9 times resulting in 9 fatal wounds. This did not give a chance to the victim to
retaliate and inflict those wounds upon the aggressor. The victim used Mr. Jose
Calica’s bolo which was secured by its scabbard. Unless earlier drawn, it would be
impossible for the victim to use it in defending himself from the surprise attack and
stabbing at a lightning fashion inflicting nine (9) fatal wounds. Time element was
the essence of this encounter which, as narrated by the Honorable Court, after the
assailant poked the victim at the left side of the buttock with the use of the
“colonial” knife he stabbed him successively until he fell down dead. Under these
circumstances, how could Exequiel Senoja suffered (sic) those hacking (sic) wounds
inflicted by the victim using Calica’s bolo? In all indications, it was Leon Lumasac
who attacked his adversary first but lost in the duel considering that he was older
than Exequiel Senoja and drunk. Clearly, therefore, it was Leon Lumasac who was
the aggressor both in the first and second phases of the incident and Exequiel
Senoja was compelled to defend himself.

A closer scrutiny of the attending circumstances which resulted in this stabbing

incident shows that Exequiel Senoja has no compelling reasons to kill his godfather.
On that same occasion, Mr. Exequiel Senoja was with the brother of the victim,
Miguel Lumasac, which only shows that there was no pre-existing grudge between
these families. And still, what titillates our imagination is the fact that Miguel
Lumasac, who was then with the group drinking gin at the hut of Crisanto Reguyal
did not clearly impute this crime to petitioner. On the contrary, when he was
presented to the witness stand, he was very evasive in answering the questions
profounded by the prosecutors if he wanted the petitioner to be imprisoned. Miguel
Lumasac could have told the real truth that Senoja murdered his brother.[8]
The CA declared that, based on the evidence on record:
As seen from appellant’s testimony, Leon Lumasac’s actions can be divided into two
(2) phases: the first phase, when Leon entered Crisanto Reguyal’s hut, up to the
time he and the appellant reconciled. The second phase was when Leon left to go
home. In phase one where Leon entered Reguyal’s hut, Leon was the aggressor but
his aggression was mostly directed to his brother Miguel who was not inside the hut
anymore, although it was also partly directed at the appellant and even at Fidel
Soneja (sic). But Leon’s aggression against the appellant and Fidel Senoja ceased
since, as appellant testified, when Leon tried to box Fidel Senoja and he (appellant)
told Leon “Huwag po, Huwag po,” Leon was pacified.

In the second phase, when Leon left the hut to go home, his aggression had
already ceased.

It is uncontroverted that the appellant followed the victim when the latter went out
of the hut to go home. Appellant’s testimony is that when he was two meters
outside the hut, Leon turned around to face him saying “if you’re not only my
godson” in a threatening way, then approached and hacked him (with Calica’s
bolo) inflicting wounds on the left side of his head and his right thigh, thus, he
(appellant) attacked the victim with the kolonial knife he was holding. That
appellant suffered such injuries was corroborated by the testimony of Dr. Rodolfo
Eligio.[9]
The petition is denied.

Paragraph 1, Article 11, of the Revised Penal Code provides:

ART. 11. Justifying circumstances. – The following do not incur any criminal
liability:

1. Anyone who acts in defense of his person or rights, provided that the
following circumstances concur;

First. Unlawful aggression;

Second. Reasonable necessity of the means employed to prevent or repel it;

Third. Lack of sufficient provocation on the part of the person defending himself.
The affirmative defense of self-defense may be complete or incomplete. It is
complete when all the three essential requisites are present; it is incomplete if only
unlawful aggression on the part of the victim and any of the two essential requisites
were present. In fine, unlawful aggression on the part of the victim is a
condition sine qua non to self-defense, complete or incomplete. Whether or not the
accused acted in self-defense is a question of fact. Like alibi, the affirmative
defense of self-defense is inherently weak because, as experience has
demonstrated, it is easy to fabricate and difficult to disprove.[10]
The right of self-defense proceeds from necessity and limited by it. The right begins
where necessity does, and ends where it ends.[11] There is, however, a perceptible
difference between necessity and self-defense, which is that, self-defense excuses
the repulse of a wrong; necessity justifies the invasion of a right. Hence, it is
essential to self-defense that it should be a defense against a present unlawful
attack.[12]

Life can be taken under the plea of necessity, when necessary for the preservation
of the life on the party setting up the plea. Self-defense is an act to save life;
hence, it is right and not a crime.[13] There is a need for one, indeed, for it is a
natural right for one to defend oneself when confronted by an unlawful aggression
by another. It is a settled rule that to constitute aggression, the person attacked
must be confronted by a real threat on his life and limb; and the peril sought to be
avoided is imminent and actual, not merely imaginary. Absent such an actual or
imminent peril to one’s life or limb, there is nothing to repel; there is no necessity
to take the life or inflict injuries on another.[14]

But then what is the standard to use to determine whether the person defending
himself is confronted by a real and imminent peril to his life or limb? We rule that
the test should be: does the person invoking the defense believe, in due exercise of
his reason, his life or limb is in danger? After all, the rule of law founded on justice
and reason: Actus no facit remin, nisi mens sit rea. Hence, the guilt of the accused
must depend upon the circumstances as they reasonably appear to him.[15]

Unlawful aggression presupposes an actual, sudden, unexpected attack or imminent

danger thereof, not merely a threatening or intimidating attitude.[16] Hence, when
an inceptual/unlawful aggression ceases to exist, the one making a defense has no
right to kill or injure the former aggressor.[17] After the danger has passed, one is
not justified in following up his adversary to take his life. The conflict for blood
should be avoided if possible.[18] An assault on his person, he cannot punish when
the danger or peril is over. When the danger is over, the right of self-defense
ceases. His right is defense, not retribution.[19]

When the accused offers the affirmative defense of self-defense, he thereby admits
killing the victim or inflicting injuries on him. The burden of evidence is shifted on
the accused to prove, with clear and convincing evidence, that he killed the victim
or inflicted injuries on him to defend himself. The accused must rely on the strength
of his own evidence and not on the weakness of that of the prosecution because if
the evidence of the prosecution were weak, the accused can no longer be
acquitted.[20]

We agree with the CA that, as gleaned, even from the testimony of the petitioner,
there were two separate but interrelated incidents that culminated in the
petitioner’s stabbing and killing of the victim Leon Lumasac. The first was the
arrival of the victim, who was armed with a bolo, in the hut of Crisanto Reguyal,
looking for his brother Miguel Lumasac, whom he was angry at. The victim hacked
the wall of the house in anger. The petitioner, who was armed with a knife, tried to
pacify the victim. The victim attempted to hack the petitioner; nevertheless, the
latter embraced and managed to pacify the victim. Forthwith, Jose Calica took
the bolo of the victim and threw it away. For his part, Fidel Senoja took the
petitioner’s knife. As it was, the victim was already pacified. He and the petitioner
were already reconciled.[21] Fidel even gave back the knife to the petitioner.

The second incident took place when the victim demanded that Calica return
his bolo as he wanted to go home already. Because he had thrown away the
victim’s bolo, Calica was, thus, impelled to give his own. The victim then warned
the petitioner three times, “May mangyayari sa iyo, kung hindi ngayon, bukas,” and
left the hut. When the victim had already gone about ten meters from the hut, the
petitioner followed the victim. The victim turned around and told the
petitioner, “Kung hindi lang kita inaanak.” The victim then hacked the petitioner,
hitting the latter on the left side of his head and thigh. Believing that the victim
would attack him anew, the petitioner stabbed the victim frontally several
times.[22] He also stabbed the victim on the left buttock. The petitioner could not
recall how many times he stabbed the victim and what parts of the latter’s body
had been hit.

The first episode inside the hut had been completed with the protagonist, the
victim, and the petitioner reconciled. The second episode commenced inside the hut
and continued outside, and ended with the petitioner stabbing the victim several
times.

The trial and the appellate courts gave no credence and probative weight to the
testimony of the petitioner. So do we.

First. The findings of fact of the trial court and its conclusions based on the said
findings are accorded by this Court high respect, if not conclusive effect, especially
when affirmed by the CA. This is because of the unique advantage of the trial court
of having been able to observe, at close range, the demeanor and behavior of the
witnesses as they testify. This rule, however, is inapplicable if the trial court
ignored, overlooked, or misinterpreted cogent facts and circumstances which, if
considered, will alter or reverse the outcome of the case. We have reviewed the
records and found no justification for a reversal of the findings of the trial court and
its conclusions based thereon.

Second. The victim sustained six hack wounds and one lacerated wound. This is
gleaned from the Necropsy Report of Dr. Pura Uy, to wit:
FINDINGS: The victim lies in supine position, stocky in built; his clothing completely soaked
with fresh blood.

CHEST:

(+) stab wound 2 inches below the L nipple 4 inches deep running medially to the anterior
median line.
(+) stab wound 2 inches to the L of the anterior median line at the level of the L nipple 5½
inches deep running posteriorly.
(+) stab wound 1 inch above the L nipple 4 inches deep running inferomedially.
(+) stab wound 2 inches to the left of the anterior median line 4 inches deep running
inferoposteriorly.
(+) stab wound 1 inch to the right of the anterior median line at the level of the second right
intercostal space 0.5 inch in depth.
(+) stab wound ½ inch to the right of the anterior median line at the level of the xyphoid
process 3½ inches deep running superiorly.
(+) stab wound at the level of the L nipple L anterior axillary line 4½ inches in depth running
superiorly to the left armpit.
(+) hack wound at the left armpit 3 inches long injuring the muscles and the blood vessels.
(+) lacerated wound on the left palm almost cutting off the proximal phalanx of the left
thumb.[23]
Five of the wounds of the victim on his chest were fatal.[24] The victim also
sustained a stab wound on the left buttock. According to the doctor, it was unlikely
for the victim to have survived even with medical attention.[25] After the doctor
made her initial autopsy and submitted her report, she noted that the victim
sustained a stab wound of about two inches deep at the left buttock, thus:
Q In this medico-legal report, you indicated that the cause of death of the victim is
“Hypovolemic shock 2º to multiple stab wounds, chest.” Will you please explain this?
A “Ito pong nakalagay o dahilan ng pagkamatay ng biktima sa sobrang natapon na dugo
gawa ng maraming saksak na tinamo ng biktima sa kanyang dibdib ang nagbigay ng
daan sa kanyang kamatayan.”

Q Will you please tell us, Dr. Uy, if there is one amont (sic) these lesions that is located at
the back of the victim?
A I forgot to tell you that a day after I submitted the report, the funeral parlor which
attended the victim has called my attention because of the wound at the back of the
victim and I attended immediately to see these lesions at the home of the victim. I
reviewed for (sic) these lesions and I saw one lesion located at the left buttock of the
victim.

Q What is the nature of the injury?

A Stab wound, about two inches deep.

Q By the nature of the lesion, is it not fatal?

A It is not that fatal.

Q In your expert opinion, by the nature of the wound sustained by the victim, what could
have been the relative position of the victim in relation to his assailant?
A Based on my examination, I think the victim and the assailant were facing each
other. “Masyadong malapit.”

Q How many fatal wounds have (sic) the victim sustained in his chest?
A Five fatal stab wounds on the chest.[26]
Considering the number, nature and location of the wounds sustained by the victim,
the petitioner’s plea of self-defense is incredible.[27] It bears stressing that the
petitioner resolutely denied stabbing the victim at the buttock and insisted that he
stabbed the victim frontally:
Q As a matter of fact, he sustained an injury at the back of his buttock (pigi) and when he
faced you, you stabbed him again several times?
A That is not true, Sir.

Q But you are admitting that you stabbed him several times frontally?
A Yes, Sir, because I am (sic) defending myself.

Q You also stabbed him in his left armpit?

A I don’t know, Sir.

Q But you knew that you stabbed him in his buttock?

A No, Sir.

Q After stabbing him several times and felt that he was already dead, you already left the
place?
A Yes, Sir.[28]
The testimony of the petitioner is belied by the physical evidence on record. The
settled rule is that physical evidence is evidence of the highest order; it speaks
more eloquently than a hundred witnesses.[29]

Third. The petitioner threw away his knife and failed to surrender it to the
policemen; neither did he inform the policemen that he killed the victim in self-
defense. The petitioner’s claim that the victim was armed with a bolo is hard to
believe because he even failed to surrender the bolo.[30]

Fourth. The petitioner’s version of the events that transpired immediately before he
stabbed the victim does not inspire belief. He claims that when he saw the victim
emerged from the hut, the victim walked towards the petitioner saying, “Kung hindi
lang kita inaanak,” but hit and hacked the latter on the left buttock.[31] As gleaned
from his statement, the victim was not disposed, much less determined to assault
the petitioner. And yet, the petitioner insists that without much ado, the victim,
nevertheless, hit him on the head and on the thigh with his bolo.

Fifth. According to the petitioner, the victim warned him three times before leaving
the hut, “May mangyayari sa iyo, kung hindi ngayon, bukas.” The petitioner
testified that shortly before the victim uttered these words, the latter even touched
the blade of the bolo to see if it was sharp.[32] The petitioner was, thus, aware of
the peril to his life if he followed the victim. The petitioner, nevertheless, followed
the victim and left the hut after the victim had gone barely ten meters. He should
have waited until after the victim had already gone far from the hut before going
home to avoid any untoward incident.

Sixth. The petitioner presented his brother-in-law Ruben Dulay to corroborate his
testimony that the victim stabbed the petitioner and that this impelled the latter to
stab the former. But the testimony of Dulay contradicted the testimony of the
petitioner:
Q When Exequiel Senoja stabbed Leon Lumasac several times, he immediately fell to the
ground and was fatal[ly] wounded, immediately died because of several stabs and lay
(sic) down?
A I did not see that scene because Exequiel Senoja stabbed Leon Lumasac, I turn (sic)
back upon seeing Leon Lumasac hack Exequiel Senoja, I turn (sic) back because I was
afraid then. When I turn (sic) back I saw them embracing each other, Sir.

Q And that is the time when Exequiel Senoja stabbed Leon Lumasac?
A I did not see the stabbing. What I only saw was that they were embracing each other,
Sir.

Q So you are now changing your answer, you actually saw Exequiel Senoja stabbing
Leon Lumasac several times, after he was hack[ed] by Leon Lumasac?
A I did not see that Exequiel Senoja stab Leon Lumasac, Sir.[33]
Seventh. The bare fact that the petitioner sustained a five-centimeter wound at the
left temporal region and an eight-centimeter hack wound on the anterior portion of
his right thigh does not preclude the fact that he was the unlawful aggressor; nor
buttress his plea that he acted in self-defense. The petitioner failed to inform the
doctor that he sustained the wounds to defend himself. Moreover, the doctor
testified that the wounds the petitioner sustained were slight:
Pros. Ronquillo:
Q Does (sic) the wound at the right anterior thigh vertical, diagonal or what?
A I did not place it, Sir.

Q So, you don’t know?

A It is vertical, Sir, but I did not place it on the record. And the hack wound on the
temporal region is oblique.

Q Were the injuries only slight?

A Yes, Sir.

Q So, it is (sic) possible that these injuries were self-inflicted?

A Probably, Sir, but I cannot comment on that.

Q You said that the patient was under the influence of alcohol? Would you say that the
patient was then so drunk at that time?
A When I saw him at that time, he was moderately drunk.[34]
The doctor gave the petitioner due medications for 30 minutes and the petitioner
then went home:

Q How did it happen that you were able to kill the victim in this case Mr. Leon Lumasac?
A Because when I went out, he hacked me, Sir.

Q Were you hit by the hack made by the victim in this case?
A Yes, Sir.
Q Where?
A Here, Sir.

And Witness is pointing to his left head.

Q Q Where else?
A (His) right thigh.

Q In what place did this incident happen?

A In the hut of Tata Santos, Sir.

Q What is his real name?

A Crisanto Reguyal, Sir.[35]
If, as claimed by the petitioner, the victim stabbed him frontally, it is incredible that
the victim was able to hack the anterior part of his right thigh.

Eighth. The testimony of the petitioner that the victim stabbed him outside the hut
on the left side of his head and the anterior portion of his right thigh is belied by his
testimony on direct examination that the victim stabbed him while still inside the
hut of Reguyal:
Q How did it happen that you were able to kill the victim in this case Mr. Leon Lumasac?
A Because when I went out, he hacked me, Sir.

Q Were you hit by the hack made by the victim in this case?
A Yes, Sir.

Q Where?
A Here, Sir.

And Witness is pointing to his left head.

Q Where else?
A (His) right thigh.

Q In what place did this incident happen?

A In the hut of Tata Santos, Sir

Q What is his real name?

A Crisanto Reguyal, Sir.[36]
But then, after the said incident, the petitioner and the victim had reconciled. We
agree with the following findings of the appellate court:
The question that must be resolved is whether or not the victim was the unlawful
aggressor as the appellant’s testimony pictures him to be. The Court rules in the
negative. The victim had already left the hut and was ten (10) meters away from it.
There is no showing that the victim, who was drunk, was aware that appellant was
following him, or that the appellant called out to him so that he (the victim) had to
turn around and notice him. It is clear that at that point in time, the victim was
simply walking toward his home; he had stopped being an aggressor. It was the
appellant who, smarting from the earlier incident in the hut where Leon told
him “hindi ka tatagal, sa loob ng tatlong araw mayroong mangyayari sa iyo, kung
hindi ngayon, bukas” repeated three times, wanted a confrontation. Appellant
stabbed or poked the victim in the left buttock resulting in the non-fatal wound, and
when the latter turned around, successively stabbed and hacked the victim in the
armpit and chest until he fell. In all, the victim suffered nine (9) wounds.

It is the well-considered finding of this Court that while Leon Lumasac had ceased
being the aggressor after he left the hut to go home, accused Exequiel Senoja was
now the unlawful aggressor in this second phase of their confrontation. It bears
mentioning that appellant contradicted himself with respect for (sic) the reason why
he left the hut. First, it was to pacify Leon and the second reason was that he was
going home.

As for appellant’s injuries, it is clear that they were sustained in the course of the
victim’s attempt to defend himself as shown by the lacerated wound on the victim’s
left palm, a defensive wound. [37]
IN LIGHT OF ALL THE FOREGOING, the petition is DENIED. The assailed
Decision of the Court of Appeals is AFFIRMED.

SO ORDERED.

[ G.R. NO. 151876, June 21, 2005 ]

SUSAN GO AND THE PEOPLE OF THE PHILIPPINES,
PETITIONERS, VS. FERNANDO L. DIMAGIBA, RESPONDENT.

DECISION

PANGANIBAN, J.:

Administrative Circular 12-2000, as clarified by Administrative Circular 13-2001,

merely establishes a rule of preference in imposing penalties for violations of Batas
Pambansa Blg. 22 (BP 22), the “Bouncing Checks Law.” When the circumstances of
both the offense and the offender indicate good faith or a clear mistake of fact
without taint of negligence, the imposition of a fine alone -- instead of
imprisonment -- is the preferred penalty. As the Circular requires a review of the
factual circumstances of a given case, it applies only to pending or future
litigations. It is not a penal law; hence, it does not have retroactive effect. Neither
may it be used to modify final judgments of conviction.
 The Case

Before us is a Petition for Review[1] under Rule 45 of the Rules of Court, assailing
the October 10, 2001[2] and the October 11, 2001[3] Orders of the Regional Trial
Court (RTC) (Branch 5), Baguio City.[4] The October 10, 2001 Order released
Respondent Fernando L. Dimagiba from confinement and required him to pay a fine
of P100,000 in lieu of imprisonment. The October 11, 2001 Order disposed as
follows:

“WHEREFORE, [in] applying the doctrine as held in the above-entitled cases in this
case, the instant petition for Habeas Corpus should be, as it is
hereby, GRANTED. The Baguio City Jail Warden is hereby ordered to
IMMEDIATELY RELEASE the petitioner from confinement unless he is being held for
some other lawful cause other than by virtue of the Sentence Mittimus dated
September 28, 2001 issued by CESAR S. VIDUYA, Clerk of Court, MTC 4, Baguio
City. Further, the petitioner is required to pay a fine in the amount of P100,000.00
in lieu of his imprisonment, in addition to the civil aspect of the Joint Judgment
rendered by MTC 4 dated July 16, 1999.”[5]

The Facts

The pertinent facts are not disputed. Respondent Fernando L. Dimagiba issued to
Petitioner Susan Go thirteen (13) checks which, when presented to the drawee
bank for encashment or payment on the due dates, were dishonored for the reason
“account closed.”[6] Dimagiba was subsequently prosecuted for 13 counts of
violation of BP 22[7] under separate Complaints filed with the Municipal Trial Court
in Cities (MTCC) in Baguio City.[8] After a joint trial, the MTCC (Branch 4) rendered
a Decision on July 16, 1999, convicting the accused in the 13 cases. The dispositive
portion reads as follows:

“WHEREFORE, in view of the foregoing disquisition, this Court finds the evidence of
the prosecution to have established the guilt of the accused beyond reasonable
doubt of the offenses charged and imposes upon the accused the penalty of 3
months imprisonment for each count (13 counts) and to indemnify the offended
party the amount of One Million Two Hundred Ninety Five Thousand Pesos
(P1,295,000.00) with legal interest per annum commencing from 1996 after the
checks were dishonored by reason ‘ACCOUNT CLOSED’ on December 13, 1995, to
pay attorney’s fees of P15,000.00 and to pay the costs.”[9]

The appeal of Dimagiba was raffled to Branch 4 of the RTC in Baguio City.[10] On
May 23, 2000, the RTC denied the appeal and sustained his conviction.[11] There
being no further appeal to the Court of Appeals (CA), the RTC issued on February 1,
2001, a Certificate of Finality of the Decision.[12]
Thus, on February 14, 2001, the MTCC issued an Order directing the arrest of
Dimagiba for the service of his sentence as a result of his conviction. The trial court
also issued a Writ of Execution to enforce his civil liability.[13]

On February 27, 2001, Dimagiba filed a Motion for Reconsideration of the MTCC
Order. He prayed for the recall of the Order of Arrest and the modification of the
final Decision, arguing that the penalty of fine only, instead of imprisonment also,
should have been imposed on him.[14] The arguments raised in that Motion were
reiterated in a Motion for the Partial Quashal of the Writ of Execution filed on
February 28, 2001.[15]

In an Order dated August 22, 2001, the MTCC denied the Motion for
Reconsideration and directed the issuance of a Warrant of Arrest against
Dimagiba.[16] On September 28, 2001, he was arrested and imprisoned for the
service of his sentence.

On October 9, 2001, he filed with the RTC of Baguio City a Petition[17] for a writ of
habeas corpus. The case was raffled to Branch 5, which scheduled the hearing for
October 10, 2001. Copies of the Order were served on respondent’s counsels and
the city warden.[18]

Ruling of the Regional Trial Court

Right after hearing the case on October 10, 2001, the RTC issued an Order
directing the immediate release of Dimagiba from confinement and requiring him to
pay a fine of P100,000 in lieu of imprisonment. However, the civil aspect of the
July 16, 1999 MTCC Decision was not touched upon.[19] A subsequent Order,
explaining in greater detail the basis of the grant of the writ of habeas corpus, was
issued on October 11, 2001.[20]

In justifying its modification of the MTCC Decision, the RTC invoked Vaca v. Court
of Appeals[21] and Supreme Court Administrative Circular (SC-AC) No. 12-
2000,[22] which allegedly required the imposition of a fine only instead of
imprisonment also for BP 22 violations, if the accused was not a recidivist or a
habitual delinquent. The RTC held that this rule should be retroactively applied in
favor of Dimagiba.[23] It further noted that (1) he was a first-time offender and an
employer of at least 200 workers who would be displaced as a result of his
imprisonment; and (2) the civil liability had already been satisfied through the levy
of his properties.[24]

On October 22, 2001, Petitioner Go filed a Motion for Reconsideration of the RTC
Orders dated October 10 and 11, 2001.[25] That Motion was denied on January 18,
2002.[26]
Hence, this Petition filed directly with this Court on pure questions of law.[27]

The Issues

Petitioner raises the following issues for this Court’s consideration:

“1. [The RTC] Judge was utterly devoid of jurisdiction in amending a final and
conclusive decision of the Municipal Trial Court, Branch 4, dated July 16, 1999, in
nullifying the Sentence Mittimus, dated September 28, 2001, issued by x x x [the]
Municipal Trial Court, Branch 4, Baguio City, and in ordering the release of
[Dimagiba] from confinement in jail for the service of his sentence under the said
final and conclusive judgment;

“2. Assuming only for the sake of argument that habeas corpus is the proper
remedy, the Petition for Habeas Corpus is utterly devoid of merit as [Dimagiba was]
not entitled to the beneficent policy enunciated in the Eduardo Vaca and Rosa
Lim cases and reiterated in the Supreme Court Circular No. 12-2000; x x x

“3. Granting for the sake of argument that [Dimagiba was] entitled to the
beneficent policy enunciated in the Eduardo Vaca and Rosa Lim cases and reiterated
in the Supreme Court Circular No. 12-2000, the minimum fine that should be
imposed on [Dimagiba] is one million and two hundred ninety five thousand pesos
(P1,295,000.00) up to double the said amount or (P2,590,000), not just the measly
amount of P100,000; and

“4. [The RTC] judge committed grave abuse of discretion amounting to lack or
excess of jurisdiction in hearing and deciding [Dimagiba’s] Petition for Habeas
Corpus without notice and without affording procedural due process to the People of
the Philippines through the Office of [the] City Prosecutor of Baguio City or the
Office of the Solicitor General.”[28]

In the main, the case revolves around the question of whether the Petition for
habeas corpus was validly granted. Hence, the Court will discuss the four issues as
they intertwine with this main question.[29]

The Court’s Ruling

The Petition is meritorious.

Main Issue:
Propriety of the
Writ of Habeas Corpus

The writ of habeas corpus applies to all cases of illegal confinement or detention in
which individuals are deprived of liberty.[30] It was devised as a speedy and
effectual remedy to relieve persons from unlawful restraint; or, more specifically, to
obtain immediate relief for those who may have been illegally confined or
imprisoned without sufficient cause and thus deliver them from unlawful
custody.[31] It is therefore a writ of inquiry intended to test the circumstances under
which a person is detained.[32]

The writ may not be availed of when the person in custody is under a judicial
process or by virtue of a valid judgment.[33] However, as a post-conviction remedy,
it may be allowed when, as a consequence of a judicial proceeding, any of the
following exceptional circumstances is attendant: (1) there has been a deprivation
of a constitutional right resulting in the restraint of a person; (2) the court had no
jurisdiction to impose the sentence; or (3) the imposed penalty has been excessive,
thus voiding the sentence as to such excess.[34]

In the present case, the Petition for a writ of habeas corpus was anchored on the
ruling in Vaca and on SC-AC No. 12-2000, which allegedly prescribed the imposition
of a fine, not imprisonment, for convictions under BP 22. Respondent sought the
retroactive effect of those rulings, thereby effectively challenging the penalty
imposed on him for being excessive. From his allegations, the Petition appeared
sufficient in form to support the issuance of the writ.

However, it appears that respondent has previously sought the modification of his
sentence in a Motion for Reconsideration[35] of the MTCC’s Execution Order and in a
Motion for the Partial Quashal of the Writ of Execution.[36] Both were denied by the
MTCC on the ground that it had no power or authority to amend a judgment issued
by the RTC.

In his Petition for habeas corpus, respondent raised the same arguments that he
had invoked in the said Motions. We believe that his resort to this extraordinary
remedy was a procedural infirmity. The remedy should have been an appeal of the
MTCC Order denying his Motions, in which he should have prayed that the
execution of the judgment be stayed. But he effectively misused the action he had
chosen, obviously with the intent of finding a favorable court. His Petition for a writ
of habeas corpus was clearly an attempt to reopen a case that had already become
final and executory. Such an action deplorably amounted to forum
shopping. Respondent should have resorted to the proper, available remedy
instead of instituting a different action in another forum.

The Court also finds his arguments for his release insubstantial to support the
issuance of the writ of habeas corpus.

Preference in the
Application of Penalties
for Violation of BP 22
The following alternative penalties are imposable under BP 22: (1) imprisonment of
not less than 30 days, but not more than one year; (2) a fine of not less or more
than double the amount of the check, a fine that shall in no case exceed P200,000;
or (3) both such fine and imprisonment, at the discretion of the court.[37]

SC-AC No. 12-2000, as clarified by SC-AC No. 13-2001,[38] established a rule of

preference in imposing the above penalties.[39] When the circumstances of the case
clearly indicate good faith or a clear mistake of fact without taint of negligence, the
imposition of a fine alone may be considered as the preferred penalty.[40] The
determination of the circumstances that warrant the imposition of a fine rests upon
the trial judge only.[41] Should the judge deem that imprisonment is appropriate,
such penalty may be imposed.[42]

SC-AC No. 12-2000 did not delete the alternative penalty of imprisonment. The
competence to amend the law belongs to the legislature, not to this Court.[43]

Inapplicability of
SC-AC No. 12-2000

Petitioners argue that respondent is not entitled to the benevolent policy enunciated
in SC-AC No. 12-2000, because he is not a “first time offender.”[44] This
circumstance is, however, not the sole factor in determining whether he deserves
the preferred penalty of fine alone. The penalty to be imposed depends on the
peculiar circumstances of each case.[45] It is the trial court’s discretion to impose
any penalty within the confines of the law. SC-AC No. 13-2001 explains thus:

“x x x. Administrative Circular No. 12-2000 establishes a rule of preference in the

application of the penal provisions of BP 22 such that where the circumstances of
both the offense and the offender clearly indicate good faith or a clear mistake of
fact without taint of negligence, the imposition of a fine alone should be considered
as the more appropriate penalty. Needless to say, the determination of whether
the circumstances warrant the imposition of a fine alone rests solely upon the
Judge. x x x.

It is, therefore, understood that:

xxx xxx xxx

“2. The Judges concerned, may in the exercise of sound discretion, and taking into
consideration the peculiar circumstances of each case, determine whether the
imposition of a fine alone would best serve the interests of justice, or whether
forbearing to impose imprisonment would depreciate the seriousness of the offense,
work violence on the social order, or otherwise be contrary to the imperatives of
justice;”
The Court notes that the Petition for a writ of habeas corpus relied mainly on the
alleged retroactivity of SC-AC No. 12-2000, which supposedly favored BP 22
offenders.[46] On this point, Dimagiba contended that his imprisonment was
violative of his right to equal protection of the laws, since only a fine would be
imposed on others similarly situated.[47]

The rule on retroactivity states that criminal laws may be applied retroactively if
favorable to the accused. This principle, embodied in the Revised Penal
Code,[48] has been expanded in certain instances to cover special laws.[49]

The issue of retroactivity of SC-AC No. 12-2000 was settled in De Joya v. Jail
Warden of Batangas City,[50] which we quote:

“Petitioner's reliance of our ruling in Ordoñez v. Vinarao that a convicted person is

entitled to benefit from the reduction of penalty introduced by the new law,
citing People v. Simon, is misplaced. Thus, her plea that as provided for in Article
22 of the Revised Penal Code, SC Admin. Circular No. 12-2000 as modified by SC
Admin. Circular No. 13-2001 should benefit her has no basis.

“First. SC Admin. Circular No. 12-2000 is not a penal law; hence, Article 22 of the
Revised Penal Code is not applicable. The circular applies only to those cases
pending as of the date of its effectivity and not to cases already terminated by final
judgment.

“Second. As explained by the Court in SC Admin. Circular No. 13-2001, SC Admin.

Circular No. 12-2000 merely lays down a rule of preference in the application of the
penalties for violation of B.P. Blg. 22. It does not amend B.P. Blg. 22, nor defeat
the legislative intent behind the law. SC Admin. Circular No. 12-2000 merely urges
the courts to take into account not only the purpose of the law but also the
circumstances of the accused -- whether he acted in good faith or on a clear
mistake of fact without taint of negligence -- and such other circumstance which
the trial court or the appellate court believes relevant to the penalty to be
imposed.”[51]

Because the Circular merely lays down a rule of preference, it serves only as a
guideline for the trial courts. Thus, it is addressed to the judges, who are directed
to consider the factual circumstances of each case prior to imposing the appropriate
penalty. In other words, the Administrative Circular does not confer any new right
in favor of the accused, much less those convicted by final judgment.

The competence to determine the proper penalty belongs to the court rendering the
decision against the accused.[52] That decision is subject only to appeal on grounds
of errors of fact or law, or grave abuse of discretion amounting to lack or excess of
jurisdiction. Another trial court may not encroach upon this authority. Indeed, SC-
AC No. 12-2000 necessarily requires a review of all factual circumstances of each
case. Such a review can no longer be done if the judgment has become final and
executory.

In the present case, the MTCC of Baguio City had full knowledge of all relevant
circumstances from which respondent’s conviction and sentence were based. The
penalty imposed was well within the confines of the law. Upon appeal, the
conviction was sustained by RTC-Branch 4 of Baguio City. Eventually, the Decision
attained finality. Hence, RTC-Branch 5 did not have the jurisdiction to modify the
lawful judgment in the guise of granting a writ of habeas corpus.

The doctrine of equal protection of laws[53] does not apply for the same reasons as
those on retroactivity. Foremost of these reasons is that the Circular is not a law
that deletes the penalty of imprisonment. As explained earlier, it is merely a rule of
preference as to which penalty should be imposed under the peculiar circumstances
of a case. At any rate, this matter deserves scant consideration, because
respondent failed to raise any substantial argument to support his contention.[54]

Modification of Final
Judgment Not Warranted

The Court is not unmindful of So v. Court of Appeals,[55] in which the final judgment
of conviction for violation of BP 22 was modified by the deletion of the sentence of
imprisonment and the imposition of a fine. That case proceeded from an “Urgent
Manifestation of an Extraordinary Supervening Event,”[56] not from an unmeritorious
petition for a writ of habeas corpus, as in the present case. The Court exercised in
that case its authority to suspend or to modify the execution of a final judgment
when warranted or made imperative by the higher interest of justice or by
supervening events.[57] The supervening event in that case was the petitioner’s
urgent need for coronary rehabilitation for at least one year under the direct
supervision of a coronary care therapist; imprisonment would have been equivalent
to a death sentence.[58]

The peculiar circumstances of So do not obtain in the present case. Respondent’s

supposed “unhealthy physical condition due to a triple by-pass operation, and
aggravated by hypertension,” cited by the RTC in its October 10, 2001 Order,[59] is
totally bereft of substantial proof. The Court notes that respondent did not make
any such allegation in his Petition for habeas corpus. Neither did he mention his
physical state in his Memorandum and Comment submitted to this Court.

Respondent seeks the retroactive application of SC-AC No. 12-2000 in his favor on
the basis alone of the alleged settlement of his civil liability.[60] Citing Griffith v.
Court of Appeals,[61] he theorizes that answering for a criminal offense is no longer
justified after the settlement of the debt.
Respondent, however, misreads Griffith. The Court held in that case that convicting
the accused who, two years prior to the filing of the BP 22 cases, had already paid
his debt (from which the checks originated) was contrary to the basic principles of
fairness and justice.[62] Obviously, that situation is not attendant here.

The civil liability in the present case was satisfied through the levy and sale of the
properties of respondent only after the criminal case had been terminated with his
conviction.[63] Apparently, he had sufficient properties that could have been used to
settle his liabilities prior to his conviction. Indeed, such an early settlement would
have been an indication that he was in good faith, a circumstance that could have
been favorably considered in determining his appropriate penalty.

At any rate, civil liability differs from criminal liability.[64] What is punished in the
latter is not the failure to pay the obligation, but the issuance of checks that
subsequently bounced or were dishonored for insufficiency or lack of funds.[65] The
Court reiterates the reasons why the issuance of worthless checks is criminalized:

“The practice is prohibited by law because of its deleterious effects on public

interest. The effects of the increase of worthless checks transcend the private
interest of the parties directly involved in the transaction and touches the interest
of the community at large. The mischief it creates is not only a wrong to the payee
or holder, but also an injury to the public. The harmful practice of putting valueless
commercial papers in circulation multiplied a thousand-fold can very well pollute the
channels of trade and commerce, injure the banking system and eventually hurt the
welfare of society and the public interest. The law punishes the act not as an
offense against property but an offense against public order.”[66]

WHEREFORE, the Petition is GRANTED and the assailed

Orders NULLIFIED. Respondent’s Petition for habeas corpus is
hereby DENIED. Let this case be REMANDED to MTCC of Baguio City for the re-
arrest of respondent and the completion of his sentence.

[ G.R. NO. 158053, June 21, 2007 ]

EDWIN RAZON Y LUCEA, PETITIONER, VS. PEOPLE OF THE
PHILIPPINES, RESPONDENT.

DECISION

AUSTRIA-MARTINEZ, J.:

Before this Court is a Petition for Review on Certiorari seeking the reversal of the
Court of Appeals' (CA) Resolution dated January 31, 2001[1] in CA-G.R. CR No.
22211 entitled "People of the Philippines v. Edwin Razon y Lucea" and the CA
Resolution dated April 14, 2003[2] which denied petitioner's motion for
reconsideration.

The facts as found by the Regional Trial Court (RTC) are summarized as follows:

PO1 Francisco Chopchopen (Chopchopen) was walking towards Upper Pinget Baguio
City, at around midnight of August 1, 1993, when a taxicab driven by Edwin Razon
y Lucea (Razon) stopped beside him. Razon told Chopchopen that he was held up
by three men at Dreamland Subdivision. Chopchopen then asked Razon to go with
him to the place of the incident to check if the persons who held him up were still
there. Razon was hesitant at first but eventually went with Chopchopen to said area
about 100 meters up the road. While walking about eight meters off the road,
Chopchopen noticed a person lying on the ground and partially hidden by a big
stone. Upon closer look, Chopchopen saw that the person's shirt was soaked in
blood and that he was hardly breathing. Lying beside the man was a wooden cane.
Chopchopen asked Razon to help him bring the person to the hospital. On the way,
Chopchopen asked Razon if he was the one who stabbed the victim. Razon
answered no. Soon they met a police mobile patrol driven by SPO2 Samuel
Bumangil (Bumangil) who followed them to Baguio General Hospital. The victim,
who was later identified as Benedict Kent Gonzalo (Gonzalo), was pronounced dead
on arrival.[3] He was 23 years old and a polio victim.[4]

Upon questioning, Razon told Bumangil that he was held up by three men, which
included Gonzalo whom he stabbed in self-defense. Razon brought out a fan knife
and told Bumangil that it was the knife he used to stab Gonzalo. A later search of
the cab however yielded another weapon, a colonial knife with bloodstains which
was found under a newspaper near the steering wheel. At the police station, Razon
admitted having stabbed Gonzalo but insisted that he did so in self-defense.[5]

An autopsy conducted on the body of the victim showed that he sustained three
stab wounds, to wit: a stab wound measuring 2.5 cms. found in the front and lower
quadrant of the abdomen, directed inward towards the mid-line and slightly upward
entering the abdominal wall and perforating the small intestines, pancreas and the
abdominal aorta, having an approximate depth of 12 cm.; a stab wound on the left
arm measuring 5 cm. with one end blunt and the other end sharp having an
approximate depth of about 1 cm.; and a stab wound on the right buttock 1.3 cm.
long with a depth of about 4 cm. The stab wound on the abdomen killed Gonzalo,
as it penetrated the small intestines, pancreas and the abdominal aorta, causing
massive hemorrhage and loss of blood. Abrasions and contusions were also found
on the body of Gonzalo, located on the left ear lobe, on the chest, on the left
anterolateral side, on the mid-posterior aspect and on the lumbar region of the
back.[6]

Razon for his part asserted that he acted in self-defense. He claimed that around
11:30 p.m. on August 1, 1993, three men boarded his cab from the Philippine
Rabbit bus station along Magsaysay Avenue in Baguio who asked to be brought to
Dreamland Subdivision in Pinget for the total sum of P90.00. Upon reaching their
destination and while Razon was turning the cab around, Gonzalo, who was seated
behind the driver's seat, declared a hold-up and poked a Batangas knife (veinte
nueve) at the right side of the base of Razon's neck. The two other passengers
were shocked but Gonzalo told them to get their knives, stab Razon and grab his
right hand. Razon however was able to grab the knife and release his right hand
from Gonzalo's two companions. Gonzalo's companions then went out of the cab
and picked up stones. Gonzalo followed and Razon ran after them. Gonzalo was
swinging his cane and it hit Razon on his right leg. Razon then thought of his knife
inside the cab and he went to get it and confronted the

three by swinging his knife from left to right. Gonzalo's companions ran away and
Razon went back to his cab and left.[7]

Not finding credence in Razon's claim of self-defense, RTC Branch 60 of Baguio City
convicted him of homicide as follows:
WHEREFORE, this Court finds the accused, Edwin Razon y Lucea, GUILTY beyond
reasonable doubt of the crime of HOMICIDE. There being no mitigating or
aggravating circumstance, he is hereby sentenced to an indeterminate penalty of 6
years and 1 day of prision mayor as minimum, to 14 years 8 months and 1 day of
reclusion temporal as maximum.

He is further ordered to pay the heirs of Benedict Kent Gonzalo, Jr. the amount of
P12,770.00 by way of actual damages; P50,000.00 by way of moral damages; and
P10,000.00 by way of attorney's fees.

SO ORDERED.[8]
Razon filed a notice of appeal,[9] and the CA required him, through his counsel Atty.
Rigoberto D. Gallardo (Atty. Gallardo) to file an appellant's brief.[10] Two motions for
extension of time were filed by Atty. Gallardo.[11] Instead of filing the brief,
however, Atty. Gallardo filed a Motion to Withdraw as Counsel for the Accused-
Appellant on January 7, 1999, claiming that Razon had consistently shown his
disinterest in the case by not attending much needed conferences.[12] The CA
ordered Atty. Gallardo to file another motion to withdraw with Razon's conformity;
thus Atty. Gallardo filed a motion dated February 1, 1999, with a signature,
purportedly that of Razon's.[13] Later, the CA received a Manifestation dated
February 17, 1999, stating that Atty. Gallardo's firm could not secure Razon's
signature to signify his conformity to Atty. Gallardo's withdrawal as his counsel,
Atty. Gallardo thus requested that he be relieved of his responsibilities as counsel
even without Razon's conformity.[14]

Due to the inconsistency of the manifestations of Atty. Gallardo in his motions

dated February 1, 1999 and February 17, 1999, the CA issued a Resolution
directing Razon to manifest the authenticity of his signature appearing on the
February 1, 1999 motion to withdraw as counsel filed by Atty. Gallardo. The CA also
required Razon to cause the entry of appearance of a new counsel within 5 days
from notice.[15]

On August 27, 1999, the CA granted Atty. Gallardo's motion to withdraw as counsel
and directed Razon anew to cause the entry of appearance of his new counsel or
manifest whether he wanted the CA to appoint a counsel de oficio to defend him,
within five days from notice with warning that failure to comply with said Resolution
shall cause the dismissal of his appeal.[16]

On February 22, 2000, the CA again issued a Resolution which noted the Judicial
Records Division (JRD) report that no compliance had been filed by Razon with the
resolution dated August 27, 1999; considered the right of the accused to be
represented by counsel as waived; and directed the JRD, in the interest of justice,
to resend the notice to file brief to Razon.[17] On February 28, 2000, the CA issued
another notice to file brief, this time addressed to and received by Razon
himself.[18] On July 12, 2000, the CA issued a Resolution requiring Razon to show
cause why his appeal should not be dismissed for failure to file the required brief
despite notice thereof.[19]

With the failure of Razon to comply with the said directives, the CA on January 31,
2001, issued the herein assailed Resolution dismissing his appeal as follows:
WHEREFORE, the appeal is deemed ABANDONED and DISMISSED on authority of
Section 8, Rule 124 of the Revised Rules of Criminal Procedure.[20]
On July 25, 2001, the CA received a Motion for Reconsideration filed by Razon
stating that he could not read and understand English and that Atty. Gallardo was
negligent of his duties to him, as said lawyer filed his withdrawal of appearance
even without his (Razon's) knowledge and conformity.[21]

The CA denied Razon's motion for reconsideration through its Resolution dated April
14, 2003, thus:[22]

1. Indeed the instant motion for reconsideration was filed out of time in
violation of Section 16, Rule 124 of the same Rules – for the appellant
admitted that on March 6, 2001 he received this Court's Resolution
dated January 31, 2001 dismissing his appeal but the record shows
that he filed the subject motion four months later or only on July 19,
2001 to be exact.

2. Our dismissal is warranted by Section 8 of Rule 124 and circumstances

showing that it was not only his previous counsel that was lax and
negligent but the appellant as well...

xxx

3. The appellant had ignored Our directives and the option given him to
have the services of a counsel de oficio.[23]

Petitioner now comes before this Court claiming that the CA erred in declaring his
appeal as abandoned and dismissed.[24] He claims that he is not bound by the
actions of Atty. Gallardo who was negligent of his duties to him; Atty. Gallardo
failed to file the required appeal brief before the CA despite the many extensions
given him; worse, Atty. Gallardo filed a motion to withdraw his appearance as
petitioner's counsel without petitioner's knowledge; it was only when he received
the CA Resolution dated January 31, 2001 that he learned of the withdrawal of Atty.
Gallardo as his counsel, and it was only then that Atty. Gallardo advised him to get
another lawyer; petitioner received the records of the case from Atty. Gallardo, only
on March 9, 2001; petitioner failed to comply with the CA resolutions because he
could not understand the same due to his educational deficiency; and given the
chance to ventilate his appeal, petitioner would be absolved of the charge against
him as he truly acted in self defense.[25]

For the State, the Office of the Solicitor General (OSG) contended that petitioner
himself is guilty of negligence; the CA gave him ample opportunity to secure the
services of counsel or manifest his desire to have a counsel de oficio appointed by
the court, but petitioner ignored said directives; petitioner's motion for
reconsideration of the CA's Resolution dated January 31, 2001 was also filed out of
time; and Sec. 8, Rule 124 of the Rules of Court provides that the appellate court
may dismiss an appeal if the appellant fails to file his brief within the time
prescribed by the said Rule.[26]

Petitioner filed a Reply and both parties filed their memoranda reiterating their
respective arguments.[27]

Sifting the arguments raised, it is clear that only two questions need to be
answered: (1) whether the CA erred in dismissing petitioner's appeal for failure to
file appellant's brief; and (2) whether petitioner acted in self-defense in killing
Gonzalo.

The Court answers both questions in the negative.

The first issue. Whether the CA erred in dismissing petitioner's appeal for failure to
file appellant's brief.

While appeal is an essential part of our judicial system, a party must strictly comply
with the requisites laid down by the Rules of Court on appeals, mindful of the fact
that an appeal is purely a statutory right. Procedural rules are designed to facilitate
the adjudication of cases. Both courts and litigants are therefore enjoined to abide
strictly by the rules. While there are instances when the Court allows a relaxation in
the application of the rules, such liberality is not intended to forge a bastion for
erring litigants to violate the rules with impunity. Liberality in the interpretation and
application of the rules applies only in proper cases and under justifiable causes and
circumstances.[28]

Indeed, the CA may dismiss an appeal for failure to file appellant's brief on time. It
is given the discretion which must be exercised in accordance with the tenets of
justice and fair play, having in mind the circumstances obtaining in each case.[29]

In this case, the CA gave petitioner sufficient opportunity to file his appellant's
brief. Instead of complying, however, petitioner chose to ignore the many directives
of the CA and now puts the blame on his former counsel Atty. Gallardo, who was
allegedly guilty of gross negligence.
Even if the Court were to admit that Atty. Gallardo was negligent, the rule is that
negligence of counsel binds the client. The only exception is when the negligence of
said counsel is so gross, reckless and inexcusable that the client is deprived of his
day in court.[30] No such excepting circumstance can be said to be present in this
case because as properly observed by the appellate court, petitioner himself was
guilty of negligence.[31]

As borne by the records, the CA issued a Resolution on April 15, 1999 requiring
petitioner to manifest within five days from receipt thereof the authenticity of his
signature appearing in the motion to withdraw as counsel filed by Atty. Gallardo
dated February 1, 1999, and to inform the CA of his new counsel.[32] On August 27,
1999, the CA granted Atty. Gallardo's motion to withdraw as counsel and required
petitioner anew to cause the entry of appearance of his new counsel or manifest
whether he desires the CA to appoint a counsel de oficio to defend him, with a
warning that failure to comply with the said resolution shall cause the dismissal of
his appeal. On February 28, 2000, the CA issued another notice to file brief, this
time addressed to Razon himself.[33] In a Resolution dated July 12, 2000, the CA
required Razon to show cause why his appeal should not be dismissed for failure to
file the required brief.[34] On January 31, 2001, or almost three years after the
notice of appeal was filed, the CA finally issued a resolution dismissing petitioner's
appeal.[35]

Despite the many notices given him, Razon still failed to comply with the CA's
directives. He also took a long time to file his motion for reconsideration of the CA's
January 31, 2001 Resolution because while he admittedly received a copy of the
said resolution on March 6, 2001, he only filed his motion for reconsideration on
July 19, 2001 or more than four months later.

It is thus clear that petitioner was guilty of neglect. He was aware of his conviction
and of the requirement of filing an appellant's brief.[36] Yet he had no urgency in
filing the same, even with the CA's explicit orders. His excuse that his educational
deficiency prevented him from complying with the CA's resolutions deserves scant
consideration. He was able to secure the services of counsel to file for him a
petition before this Court. Had he exerted earlier the kind of effort he put in getting
a new counsel, or had he simply notified the court of his desire to have a
counsel de oficio assigned to him, then he would not have to contend with the
predicament he is presently in. For the resolution of the CA dismissing his appeal on
the ground of abandonment, petitioner has no one else to blame but himself.

The second issue. Whether petitioner acted in self-defense.

While the CA did not rule on the merits of the case, it is best not to remand the
case to the CA. All the records and evidence necessary for the determination of the
innocence or guilt of the petitioner are before this Court. Thus, for a complete and
full disposition of the case and to avert further delay in the disposition of the same,
the Court shall hereby resolve the case on the merits.[37]
It is settled that when an accused admits killing the victim but invokes self-defense
to escape criminal liability, the accused assumes the burden to establish his plea by
credible, clear and convincing evidence; otherwise, conviction would follow from his
admission that he killed the victim.[38] Self-defense cannot be justifiably appreciated
when uncorroborated by independent and competent evidence or when it is
extremely doubtful by itself.[39] Indeed, in invoking self-defense, the burden of
evidence is shifted and the accused claiming self-defense must rely on the strength
of his own evidence and not on the weakness of the prosecution.[40]

Here, petitioner admitted having inflicted the wound which killed Gonzalo.[41] The
burden is therefore on him to show that he did so in self-defense. As correctly
found by the RTC, however, petitioner failed to prove the elements of self-defense.

To escape liability, the person claiming self-defense must show by sufficient,

satisfactory and convincing evidence that: (1) the victim committed unlawful
aggression amounting to actual or imminent threat to the life and limb of the
person claiming self-defense; (2) there was reasonable necessity in the means
employed to prevent or repel the unlawful aggression; and (3) there was lack of
sufficient provocation on the part of the person claiming self-defense or at least any
provocation executed by the person claiming self-defense was not the proximate
and immediate cause of the victim's aggression.[42]

The condition sine qua non for the justifying circumstance of self-defense is the
element of unlawful aggression.[43] There can be no self-defense unless the victim
committed unlawful aggression against the person who resorted to self-
defense.[44] Unlawful aggression presupposes an actual, sudden and unexpected
attack or imminent danger thereof and not just a threatening or intimidating
attitude.[45] In case of threat, it must be offensive, strong and positively showing
the wrongful intent to cause injury.[46] For a person to be considered the unlawful
aggressor, he must be shown to have exhibited external acts clearly showing his
intent to cause and commit harm to the other.[47]

Petitioner claims that Gonzalo, who was seated behind him in the taxicab, declared
a hold-up and poked a knife at the base of his neck. Granting that this is true, what
transpired next, changed the nature of the roles played by petitioner and Gonzalo.

As correctly found by the trial court:

Without scrutinizing Razon's assertion that he was held up, and assuming the same
to be true, there was, indeed unlawful aggression when Gonzalo poked a knife on
Razon's neck. But, when Razon, in a Herculean feat, was able to grab the knife
from Gonzalo and freed his right hand from the hold of Gonzalo's two companions,
the aggression no longer existed. In fact, Gonzalo's two companions, went out of
the taxicab and Gonzalo himself went out also towards the canal of the road. At this
point, Razon could have started his taxicab and left the place because he was left
alone in the taxicab. But he did not. He went after Gonzalo and his two companions
and started swinging the knife he grabbed from Gonzalo. He even had time to go
back to the taxicab and get his own knife and then went back to the three men. He
then was holding two knives. There was no proof that Gonzalo's companions were
able to throw stones at him or the taxicab to indicate perhaps, that his three
passengers who intended to hold him up continued their unlawful aggression...

When Gonzalo and his two companions went out of the taxicab, and Razon followed
them outside, Razon became the aggressor. The wounds sustained by Gonzalo
would clearly show that he was attacked by Razon.[48]
Such findings are well supported by the records. During his direct testimony, Razon
admitted that he followed the three men, including Gonzalo, after they got out of
the cab. Then he went back to his cab to get his knife.[49] On cross-examination,
Razon admitted the same thing, and added the following:
Q. And you said that you swung the knife from left to right, is that correct?
A. Yes, sir.

Q. And you were able to hit Benedict Kent Gonzalo, Jr.?

A. Yes, sir.

xxx

Q. So you admitted that the injuries sustained by Benedict Kent Gonzalo in front of
his abdomen was due to your act of swinging the knife from left to right in front of
him?
A. Yes, sir.

xxx

Q. And tell the Court if this is the one that you used, this colonial knife, previously
marked as Exh. "A."
A. This is the one, sir.

Q. Yes, you testified the last time that you have to go back to your taxi cab and get this
knife marked as Exh. "A"?
A. Yes, sir.[50] (Emphasis supplied)

On re-cross, Razon further admitted that:

Q. And you went near the canal where Benedict Kent Gonzalo, Jr. was?
A. Yes, sir.

Q. And the two others were already running away?

A. They were still there at that time.

Q. Do you know that Benedict Kent Gonzalo, Jr. was a victim of polio?
A. No, sir.

Q. But he did not run unlike the other two?

A. Yes, sir.
Q. He was in the canal which is lower than the road, is that correct?
A. Yes, sir.

ATTY. GALLARDO:

Witness is demonstrating the height of the canal about one foot, Your Honor.

ATTY. MOLINTAS:

You have to go near him and go down the canal also, is that correct?

A. Yes, sir.

Q. That's where you swung your knife left and right towards Benedict Kent Gonzalo, Jr.?
A. Yes, sir.

Q. And Benedict Kent Gonzalo, Jr. did not try to run away from you?
A. When I went up to get my taxi, that was the time he run away, sir.[51] (Emphasis
supplied)
Petitioner unequivocally admitted that after the three men went out of his taxicab,
he ran after them and later went back to his cab to get his colonial knife; then he
went down the canal to swing his knife at the victim, wounding and killing him in
the process. Such can no longer be deemed as self-defense.

It is settled that the moment the first aggressor runs away, unlawful aggression on
the part of the first aggressor ceases to exist; and when unlawful aggression
ceases, the defender no longer has any right to kill or wound the former aggressor;
otherwise, retaliation and not self-defense is committed.[52] Retaliation is not the
same as self-defense. In retaliation, the aggression that was begun by the injured
party already ceased when the accused attacked him, while in self-defense the
aggression was still existing when the aggressor was injured by the accused.[53]

Even assuming that some danger did in fact exist, the imminence of that danger
had already ceased the moment petitioner was able to disarm the victim by
wresting the knife from the latter. After the former had successfully seized the
weapon, and he as well as his companions went out of the cab, there was no longer
any unlawful aggression to speak of that would have necessitated the need to kill
the victim.[54]

The defense employed by petitioner also cannot be said to be reasonable. The

means employed by a person claiming self-defense must be commensurate to the
nature and the extent of the attack sought to be averted, and must be rationally
necessary to prevent or repel an unlawful aggression.[55] The nature or quality of
the weapon; the physical condition, the character, the size and other circumstances
of the aggressor as well as those of the person who invokes self-defense; and the
place and the occasion of the assault also define the reasonableness of the means
used in self-defense.[56]

In this case, the deceased was a polio victim, which explains the presence of the
wooden cane at the scene of the crime.[57] Petitioner also admitted that when he
went after Gonzalo, he had in his possession two knives, the Batangas knife he
wrested from the hold-uppers and the colonial knife which he took from his cab.[58]

Other circumstances also render petitioner's claim of self-defense as dubious and

unworthy of belief. The nature and location of the victim's wounds manifest
petitioner's resolve to end the life of the victim.[59] Here, the wound that killed
Gonzalo was 12 cm. deep which was directed inward and slightly upward, entering
the abdominal cavity, perforating the small intestines and penetrating the pancreas
and the abdominal aorta.[60] Petitioner also did not inform the authorities at the
earliest opportunity that he wounded Gonzalo in self-defense;[61] neither did he
surrender right away the colonial knife which he used in stabbing the victim. He
only invoked self-defense when he could no longer conceal his deed. As testified to
by Chopchopen, Razon was hesitant at first to go to the place where he was
allegedly held up.[62] Then when Chopchopen discovered the body of Gonzalo and
while they were bringing him to the hospital, he asked Razon if he was the one who
stabbed Gonzalo, to which Razon answered in the negative.[63] He only admitted to
having stabbed the victim at the police station after he was investigated by police
officers.[64]

Petitioner's claim that he also suffered injuries brought by the attack on him by the
victim is belied by the testimonies of police officers Chopchopen and Bumangil who
said that they did not see any injury on Razon on the night in question.[65]

With petitioner's failure to prove self-defense, the inescapable conclusion is that he

is guilty of homicide as correctly found by the RTC.

As to the damages awarded by the RTC, however, the Court finds that certain
modifications need to be made. While not assigned as errors, it is the duty of the
Court to correct such errors as may be found in the judgment appealed from, since
an appeal in a criminal case throws the whole case wide open for review.[66]

The Court notes that the RTC failed to award the heirs of Gonzalo, P50,000.00 as
civil indemnity for his death.[67] Civil indemnity is automatically imposed upon the
accused without need of proof other than the fact of commission of murder or
homicide.[68]

Anent actual damages, the Court resolves to delete the same and in lieu thereof
imposes temperate damages in the amount of P25,000.00. This is consistent with
the ruling of the Court in People v. Werba,[69] citing People v. Villanueva[70] which
held that in instances where actual expenses amounting to less than P25,000.00
are proved during the trial, the award of temperate damages of P25,000.00 is
justified in lieu of the actual damages of a lesser amount.[71] In this case, Gonzalo's
heirs were only able to present receipts amounting to P4,925.00.[72]
As to moral damages, the RTC correctly awarded the amount of P50,000.00, as the
prosecution was able to show that the father of the victim, Benedicto Gonzalo, Sr.,
suffered mental and emotional anguish due to the untimely death of his son.
Gonzalo Sr., who was 74 years old at the time of his testimony, said that he had
special affection for his son, not only because he was the youngest among all his
children, but also because he was a polio victim. He said that he could not eat and
sleep thinking that his son could not have put up a fight due to his physical
disability.[73] Indeed, moral damages may be awarded in favor of the heirs of a
victim upon sufficient proof of mental anguish, serious anxiety, wounded feelings
and similar injury.[74]

The RTC also did not err in awarding P10,000.00 as attorney's fees to the heirs of
the victim. As provided for in Art. 2208 (11)[75] of the Civil Code, attorney's fees
may be awarded where the court deems it just and equitable that attorney's fees
and expenses of litigation should be recovered. In this case the award of attorney's
fees is proper as it is borne by the records that the family of the victim hired the
services of a private lawyer to prosecute the case.[76]

WHEREFORE, the Decision of the Regional Trial Court, Branch 60, Baguio City, in
Criminal Case No. 12245-R, entitled "People of the Philippines v. Edwin Razon y
Lucea" is AFFIRMED with MODIFICATION to the effect that petitioner is ordered
to pay the heirs of Benedict Kent Gonzalo, Jr. the amount of P50,000.00 as civil
indemnity and P25,000.00 as temperate damages in addition to P50,000.00 as
moral damages and P10,000.00 as attorney's fees.

SO ORDERED.

[ G.R. NO. 166040, April 26, 2006 ]

NIEL F. LLAVE,PETITIONER, VS. PEOPLE OF THE
PHILIPPINES,RESPONDENT.

DECISION

CALLEJO, SR., J.:

Before the Court is a Petition for Review of the Decision[1] of the Court of Appeals
(CA) in CA-G.R. CR No. 26962 affirming, with modification, the Decision[2] of the
Regional Trial Court (RTC) of Pasay City, Branch 109, in Criminal Case No. 02-1779
convicting Petitioner Neil F. Llave of rape.

On September 27, 2002, an Information charging petitioner (then only 12 years

old) with rape was filed with the RTC of Pasay City. The inculpatory portion of the
Information reads:
That on or about the 24th day of September 2002, in Pasay City, Metro Manila,
Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, NEIL LLAVE Y FLORES, aka NIEL F. LLAVE, a minor over nine (9) years of
age and under fifteen (15) but acting with discernment, by means of force threat
and intimidation, did then and there willfully, unlawfully, feloniously have carnal
knowledge of the complainant, DEBBIELYN SANTOS y QUITALES, a minor, seven
(7) years of age, against her will and consent.

Contrary to law.[3]

The Case for the Prosecution

The spouses Domingo and Marilou Santos were residents of Pasay City.[4] One of
their children, Debbielyn, was born on December 8, 1994.[5] In 2002, she was a
Grade II student at the Villamor Air Base Elementary School in Pasay City[6] and
attended classes from 12:00 noon to 6:00 p.m.[7]

Domingo eked out a living as a jeepney driver, while Marilou sold quail eggs at a
nearby church.[8] Adjacent to their house was that of Teofisto Bucud, a barbecue
vendor who would usually start selling at 6:30 p.m.[9] Next to Teofisto's residence
was a vacant house.[10]

Debbielyn testified that on September 24, 2002, she arrived home at past 6:00
p.m. She changed her clothes and proceeded to her mother's store. Marilou asked
her daughter to bring home the container with the unsold quail eggs.[11] Debbielyn
did as told and went on her way. As she neared the vacant house, she saw
petitioner, who suddenly pulled her behind a pile of hollow blocks which was in front
of the vacant house. There was a little light from the lamp post.[12] She resisted to
no avail.[13] Petitioner ordered her to lie down on the cement. Petrified, she
complied. He removed her shorts and underwear then removed his own. He got on
top of her.[14] She felt his penis being inserted into her vagina. He kissed
her.[15] She felt pain and cried.[16] She was sure there were passersby on the street
near the vacant house at the time.

It was then that Teofisto came out of their house and heard the girl's cries. He
rushed to the place and saw petitioner on top of Debbielyn, naked from the waist
down. Teofisto shouted at petitioner, and the latter fled from the scene. Teofisto
told Debbielyn to inform her parents about what happened.[17] She told her father
about the incident.[18] Her parents later reported what happened to the police
authorities.[19] Debbielyn told the police that petitioner was a bad boy because he
was a rapist.[20]

Teofisto testified that at about 6:25 p.m. on September 24, 2002, he went out of
their house to get his barbecue grill. He heard someone moaning from within the
adjacent vacant house.[21] He rushed to the place and saw petitioner, naked from
waist down, on top of Debbielyn, making pumping motions on her anus.[22] The girl
was crying. He shouted at petitioner, "Hoy, bakit ginawa mo 'yan?"[23] Petitioner
hurriedly put his shorts on and fled.[24] Neighbors who had heard Teofisto shouting
arrived.[25] Later, Teofisto gave a written statement to the police investigator
regarding the incident.[26]

Domingo Santos testified that at about 6:30 p.m. that day, he was inside their
house. His daughter, Kimberly Rose, suddenly told him that Debbielyn had been
raped near the vacant house by petitioner.[27] He rushed to the place and found her
daughter crying. When he asked her what happened, she replied that she had been
abused. He brought Debbielyn to their house and then left.[28] He then looked for
petitioner and found him at his grandmother's house. A barangay tanod brought
petitioner to the barangay hall.[29] On September 25, 2002, he brought her
daughter to the Philippine General Hospital Child Protection Unit at Taft Avenue,
Manila where she was examined by Dr. Mariella S. Castillo.

Dr. Castillo declared on the witness stand that she was a physician at the Child
Protection Unit of the Philippine General Hospital. On September 25, 2002, she
interviewed the victim who told her "Masakit ang pepe ko," "Ni-rape ako."[30] Dr.
Castillo also conducted a genital examination on the child, and found no injury on
the hymen and perineum, but found scanty yellowish discharge between the labia
minora.[31] There was also a fresh abrasion of the perineal skin at 1 o'clock position
near the anal opening.[32] She declared that the findings support the theory that
blunt force or penetrating trauma (such as an erect penis, finger, or any other
foreign body[33]) was applied to the perineal area[34] not more than six or seven
days before.[35] The abrasion could have been caused on September 24, 2002. She
found no spermatozoa in the vaginal area or injury at the external
genitalia;[36] neither did she find any other injury or abrasion on the other parts of
the victim's body.[37] She concluded that her findings were consistent with the
victim's claim that she was sexually abused by petitioner.

Barangay Tanod Jorge Dominguez, for his part, testified that on September 24,
2002, Marilou Santos arrived at the barangay hall and reported that her daughter
had been raped by petitioner who was then in his aunt's house at Cadena de Amor
Street. Barangay Captain Greg Florante ordered him and Barangay Tanod Efren
Gonzales to proceed to Cadena de Amor Street and take the boy into custody, and
they did as they were told.[38]

The Case for the Accused

Petitioner, through counsel, presented Dr. Castillo as witness. She declared that the
abrasions in the perineal area could have been caused while the offender was on
top of the victim.[39] She explained that the distance between the anus and the
genital area is between 2.5 to 3 centimeters.[40] The abrasion was located at ¼ of
an inch from the anal orifice.

Petitioner testified and declared that he was a freshman at the Pasay City South
High School.[41] He had been one of the three outstanding students in grade school
and received awards such as Best in Mathematics.[42] He also finished a computer
course and received a Certificate of Completion from the Philippine Air Force
Management Information Center.[43] He denied having raped the private
complainant. He declared that at 6:30 p.m. on September 24, 2002, he was outside
of their house to buy rice in the carinderia[44] and he saw her on his way
back.[45] He also met his father, who asked him what he had done to their neighbor.
He was also told that the victim's father was so angry that the latter wanted to kill
him.[46] He did not ask his father for the name of the angry neighbor. He was also
told to pass by Cadena de Amor Street in going to his aunt's house. Petitioner also
declared that his mother prodded him to go to his aunt's house.[47] Later, Domingo
and Barangay Tanod Jorge Dominguez arrived at his aunt's house and brought him
to the barangay hall. He did not know of any reason why Debbielyn and her parents
would charge him with rape.[48]

Petitioner also declared that he played cards with Debbielyn.[49] While confined at
the Pasay City Youth Home during trial, he had a crush on "Issa," a young female
inmate. Using a piece of broken glass (bubog) about half-an-inch long, he inscribed
her name on his right thigh, left leg and left arm.[50]

Nida Llave testified and identified her son's Certificate of Live Birth, in which it
appears that he was born on March 6, 1990.[51] She declared that at about 6:30
p.m. on September 24, 2000, Marilou Santos and Marilyn Bucud arrived in their
house looking for her son. According to Marilyn, her son had raped the private
complainant. She went to their house to look for her son and came across Domingo
Santos who threatened to kill her son. She and her husband proceeded to the
house of his sister Josefina at Cadena de Amor Street where petitioner had hidden
for a while.[52]

At the conclusion of the trial, the court rendered judgment convicting Neil of the
crime charged. The decretal portion of the decision reads:

FROM ALL THE FOREGOING, the Court opines that the prosecution has proven the
guilt of the xxx Niel Llave y Flores beyond reasonable doubt when he forcibly pulled
the complainant towards the vacant lot, laid on top of her and had carnal
knowledge with the [complainant] against her will and consent who is only seven
(7) years old (sic). Moreover, he being a minor, he cannot be meted with the Death
penalty.

WHEREFORE, the Court finds the CICL [Child in Conflict with the Law] Niel Llave y
Flores guilty beyond reasonable doubt, and crediting him with the special mitigating
circumstance of minority, this Court hereby sentences him to prision
mayor minimum, Six (6) years and One (1) day to Eight (8) years, and pay civil
indemnity of Fifty Thousand Pesos (Php50,000.00).[53]

The trial court declared that based on the evidence of the prosecution that
petitioner pushed the victim towards the vacant house and sexually abused her,
petitioner acted with discernment. It also considered petitioner's declaration that he
had been a consistent honor student.[54]

Petitioner appealed the decision to the CA, where he averred the following in his
Brief as appellant therein:

THE LOWER COURT ERRED WHEN IT DISREGARDED THE MATERIAL

INCONSISTENCIES OF THE TESTIMONY OF COMPLAINING WITNESS WITH THAT OF
THE MEDICAL REPORT ON THE FACTUAL ALLEGATION OF BLEEDING.

II

THE LOWER COURT ERRED WHEN IT GAVE CREDENCE TO THE TESTIMONY OF THE
PROSECUTION WITNESS TEOFISTO BUCUD WHO HAS REASON TO FABRICATE A
SCENARIO AGAINST ACCUSED-APPELLANT BECAUSE HE HAS PERSONAL VENDETTA
AGAINST THE LATTER'S FAMILY/RELATIVES.

III

THE LOWER COURT ERRED IN UPHOLDING THE THEORY OF THE PROSECUTION OF

RAPE BY HAVING CARNAL KNOWLEDGE, BEING CONTRARY TO THE PHYSICAL
EVIDENCE.[55]

The CA rendered judgment affirming the decision with modification as to the

penalty meted on him.

WHEREFORE, the decision subject of the instant appeal is hereby MODIFIED in that
the accused-appellant is sentenced to an indeterminate penalty of two (2) years
and four (4) months of prision correccional medium as the minimum to eight (8)
years and one (1) day of prision mayor medium as the maximum. Additionally, the
accused-appellant is ordered to pay the complaining witness the amount of P50,000
by way of moral damages and P20,000 by way of exemplary damages.

SO ORDERED.[56]

Petitioner filed a Motion for the Reconsideration,[57]contending that the prosecution

failed to adduce proof that he acted with discernment; hence, he should be
acquitted. The appellate court denied the motion in a Resolution[58] dated November
12, 2004 on the following finding:
As regards the issue of whether the accused-appellant acted with discernment, his
conduct during and after the "crime" betrays the theory that as a minor, the
accused-appellant does not have the mental faculty to grasp the propriety and
consequences of the act he made. As correctly pointed out by the prosecution, the
fact that forthrightly upon discovery, the accused-appellant fled the scene and hid
in his grandmother's house intimates that he knew that he did something that
merits punishment.

Contrary to the urgings of the defense, the fact that the accused-appellant is a
recipient of several academic awards and is an honor student further reinforces the
finding that he [is] possessed [of] intelligence well beyond his years and is thus
poised to distinguish, better at least than other minors his age could, which conduct
is right and which is morally reprehensible.[59]

Petitioner now raises the following issues and arguments in the instant petition
before this Court:

ISSUES

WHETHER OR NOT EVIDENCE WAS SUFFICIENT TO CONVICT PETITIONER BEYOND

REASONABLE DOUBT.

II
WHETHER OR NOT PETITIONER, WHO WAS A MINOR ABOVE 9 YEARS BUT BELOW
15 YEARS OF AGE AT THE TIME OF THE CRIME, ACTED WITH DISCERNMENT.

III
WHETHER OR NOT PETITIONER WAS DENIED DUE PROCESS OF LAW.

ARGUMENTS

THE MATERIAL INCONSISTENCIES BETWEEN THE TESTIMONY OF COMPLAINING

WITNESS WITH THE MEDICAL REPORT BELIE THE FINDING OF RAPE.

II

PRIVATE COMPLAINANT IS NOT A CREDIBLE WITNESS.

III
PETITIONER ACTED WITHOUT DISCERNMENT.

IV
THE TESTIMONY RELIED UPON BY THE PROSECUTION IS HEARSAY.

V
THE COMPLAINT IS FABRICATED.

VI
PETITIONER WAS DENIED DUE PROCESS OF LAW.[60]

The issues raised by the petitioner in this case may be summarized as follows: (1)
whether he was deprived of his right to a preliminary investigation; (2) whether he
had carnal knowledge of the private complainant, and if in the affirmative, whether
he acted with discernment in perpetrating the crime; (3) whether the penalty
imposed by the appellate court is correct; and (4) whether he is liable to pay moral
damages to the private complainant.

On the first issue, petitioner avers that he was deprived of his right to a preliminary
investigation before the Information against him was filed.

On the second issue, petitioner claims that the prosecution failed to prove beyond
reasonable doubt that he had carnal knowledge of Debbielyn. He insists that her
testimony is inconsistent on material points. He points out that she claimed to have
felt pain in her vagina when petitioner inserted his penis to the point that she cried;
this, however, is negated by Dr. Castillo's report stating that there was no evidence
of injury on the victim's external genitalia. Petitioner maintains that as against the
victim's testimony and that of Dr. Castillo's report, the latter should prevail.

According to petitioner, mere touching of the female organ will not suffice as factual
basis of conviction for consummated rape. Moreover, the victim's testimony lacks
credibility in view of her admission that, while she was being allegedly ravished by
him, there were passersby along the street. Besides, petitioner avers, an abrasion
may be caused by an invasion of the body through the protective covering of the
skin. Petitioner insists that the prosecution failed to prove the cause of the
abrasion.

Petitioner also claims that the victim was tutored or coached by her parents on her
testimony before the trial court. Dr. Castillo testified that when she interviewed
Debbielyn, the latter admitted to her that she did not understand the meaning of
the word "rape" and its Filipino translation, "hinalay," and that the genital
examination of the girl was at the insistence of the latter's parents.

Petitioner avers that Teofisto Bucud's testimony has no probative weight because
and had an ill-motive to testify against him. Petitioner stated, on cross-
examination, that his uncle, Boy, had the house rented by Teofisto demolished.
Petitioner avers that the witness persuaded the victim's parents to complain against
him, as gleaned from the testimony of Police Investigator Milagros Carroso.

For its part, the Office of the Solicitor General (OSG) avers that petitioner was
subjected to an inquest investigation under Section 7, Rule 112 of the Revised
Rules of Criminal Procedure, as gleaned from the Certification of the City Prosecutor
incorporated in the Information. It avers that the absence of external injuries does
not negate rape; neither is it necessary that lacerations be found on the hymen of a
victim. Rape is consummated if there is some degree of penetration within the
vaginal surface. Corroborative evidence is not necessary to prove rape. As long as
the testimony of the victim is credible, such testimony will suffice for conviction of
consummated rape. When the victim testified that she was raped, she was, in
effect, saying all that is necessary to prove that rape was consummated.
Petitioner's evidence to prove ill-motive on the part of Teofisto Bucud in testifying
against him is at best flimsy. Moreover, it is incredible that the victim and her
parents would charge petitioner with rape solely on Teofisto's proddings.

The OSG insists that the petitioner acted with discernment before, during, and after
the rape based on the undisputed facts. The submission of the OSG follows:

Petitioner argues that since he was only 12 years old at the time of the alleged rape
incident, he is presumed to have acted without discernment under paragraph 3 of
Article 12 of the Revised Penal Code. Under said provision, the prosecution has the
burden of proving that he acted with discernment. In the instant case, petitioner
insists that there was no evidence presented by the prosecution to show that he
acted with discernment. Hence, he should be exempt from criminal liability.

Petitioner's arguments are bereft of merit.

Discernment, as used in Article 12(3) of the Revised Penal Code is defined as

follows: "the discernment that constitutes an exception to the exemption from
criminal liability of a minor under fifteen (15) years of age but over nine (9), who
commits an act prohibited by law, is his mental capacity to understand the
difference between right and wrong" (People v. Doquena, 68 Phil. 580 [1939]). For
a minor above nine but below fifteen years of age, he must discern the rightness or
wrongness of the effects of his act (Guevarra v. Almodova, G.R. No. 75256, January
26, 1989).

Professor Ambrocio Padilla, in his annotation of Criminal Law (p. 375, 1998 Ed.),
writes that "discernment is more than the mere understanding between right and
wrong. Rather, it means the mental capacity of a minor between 9 and 15 years of
age to fully appreciate the consequences of his unlawful act" (People v.
Navarro, [CA] [51 O.G. 4062]). Hence, in judging whether a minor accused acted
with discernment, his mental capacity to understand the difference between right
and wrong, which may be known and should be determined by considering all the
circumstances disclosed by the record of the case, his appearance, his attitude and
his behavior and conduct, not only before and during the commission of the act, but
also after and even during the trial should be taken into consideration (People v.
Doquena, supra).

In the instant case, petitioner's actuations during and after the rape incident, as
well as his behavior during the trial showed that he acted with discernment.

The fact appears undisputed that immediately after being discovered by the
prosecution's witness, Teofisto Bucud, petitioner immediately stood up and ran
away. Shortly thereafter, when his parents became aware of the charges against
him and that private complainant's father was looking for him, petitioner went into
hiding. It was not until the Barangay Tanod came to arrest him in his
grandmother's house that petitioner came out in the open to face the charges
against him. His flight as well as his act of going into hiding clearly conveys the idea
that he was fully aware of the moral depravity of his act and that he knew he
committed something wrong. Otherwise, if he was indeed innocent or if he was not
least aware of the moral consequences of his acts, he would have immediately
confronted private complainant and her parents and denied having sexually abused
their daughter.

During the trial, petitioner submitted documentary evidence to show that he was a
consistent honor student and has, in fact, garnered several academic awards. This
allegation further bolstered that he acted with discernment, with full knowledge and
intelligence. The fact that petitioner was a recipient of several academic awards and
was an honor student further reinforces the finding that he was possessed of
intelligence well beyond his years and thus was able to distinguish, better than
other minors of his age could, which conduct is right and which is morally
reprehensible. Hence, although appellant was still a minor of twelve years of age,
he possessed intelligence far beyond his age. It cannot then be denied that he had
the mental capacity to understand the difference between right and wrong. This is
important in cases where the accused is minor. It is worthy to note that the basic
reason behind the enactment of the exempting circumstances under Article 12 of
the Revised Penal Code is the complete absence of intelligence, freedom of action,
or intent on the part of the accused. In expounding on intelligence as the second
element of dolus, the Supreme Court has stated: "The second element of dolus is
intelligence; without this power, necessary to determine the morality of human acts
to distinguish a licit from an illicit act, no crime can exist, and because" the infant
has no intelligence, the law exempts (him) from criminal liability" (Guevarra v.
Aldomovar, 169 SCRA 476 [1989], at page 482).

The foregoing circumstances, from the time the incident up to the time the
petitioner was being held for trial, sufficiently satisfied the trial court that petitioner
acted with discernment before, during and after the rape incident. For a boy
wanting in discernment would simply be gripped with fear or keep mum. In this
case, petitioner was fully aware of the nature and illegality of his wrongful act. He
should not, therefore, be exempted from criminal liability. The prosecution has
sufficiently proved that petitioner acted with discernment.[61]

In reply, petitioner asserts that the only abrasion found by Dr. Castillo was on the
peri-anal skin and not in the labia of the hymen. He further insists that there can be
no consummated rape absent a slight penetration on the female organ. It was
incumbent on the prosecution to prove that the accused acted with discernment but
failed. The mere fact that he was an honor student is not enough evidence to prove
that he acted with discernment.

The petition is not meritorious.

On the first issue, petitioner's contention that he was deprived of his right to a
regular preliminary investigation is barren of factual and legal basis. The record
shows that petitioner was lawfully arrested without a warrant. Section 7, Rule 112
of the Revised Rules of Criminal Procedure provides:

SEC. 7. When accused lawfully arrested without warrant. - When a person is

lawfully arrested without a warrant involving an offense which requires a
preliminary investigation, the complaint or information may be filed by a prosecutor
without need of such investigation provided an inquest has been conducted in
accordance with existing rules. In the absence or unavailability of an inquest
prosecutor, the complaint may be filed by the offended party or a peace officer
directly with the proper court on the basis of the affidavit of the offended party or
arresting officer or person.

Before the complaint or information is filed, the person arrested may ask for a
preliminary investigation in accordance with this Rule, but he must sign a waiver of
the provisions of Article 125 of the Revised Penal Code, as amended, in the
presence of his counsel. Notwithstanding the waiver, he may apply for bail and the
investigation must be terminated within fifteen (15) days from its inception.

After the filing of the complaint or information in court without a preliminary

investigation, the accused may, within five (5) days from the time he learns of its
filing, ask for a preliminary investigation with the same right to adduce evidence in
his defense as provided for in this Rule.

As gleaned from the Certification[62] of the City Prosecutor which was incorporated
in the Information, petitioner did not execute any waiver of the provisions of Article
125 of the Revised Penal Code before the Information was filed. He was arraigned
with the assistance of counsel on October 10, 2002, and thereafter filed a petition
for bail.[63] Petitioner's failure to file a motion for a preliminary investigation within
five days from finding out that an Information had been filed against him effectively
operates as a waiver of his right to such preliminary investigation.[64]

On the second issue, a careful review of the records shows that the prosecution
adduced evidence to prove beyond reasonable doubt that petitioner had carnal
knowledge of the private complainant as charged in the Information. In People v.
Morata[65] the Court ruled that penetration, no matter how slight, or the mere
introduction of the male organ into the labia of the pudendum, constitutes carnal
knowledge. Hence, even if the penetration is only slight, the fact that the private
complainant felt pains, points to the conclusion that the rape was consummated.[66]

From the victim's testimony, it can be logically concluded that petitioner's penis
touched the middle part of her vagina and penetrated the labia of the pudendum.
She may not have had knowledge of the extent of the penetration; however, her
straightforward testimony shows that the rape passed the stage of
consummation.[67] She testified that petitioner dragged her behind a pile of hollow
blocks near the vacant house and ordered her to lie down. He then removed her
shorts and panty and spread her legs. He then mounted her and inserted his penis
into her vagina:

Fiscal Barrera:

Q: From what time up to what time?

A: From 12:00 o'clock noon up to 6:00 p.m.

Q: September 24, 2002 and going over the calendar, it was Tuesday. Did you go to
school from 12:00 o'clock noon up to 6:00 p.m.?
A: Yes, Sir, on the same date I went to school.

Q: At about 6:00 p.m., Sept. 24, 2002, where were you?

A: I went home.

Q: And by whom you are referring to your house at 1-C Carnation St., R. Higgins,
Maricaban, Pasay City?
A: Yes, Sir.

Q: And what did you do after you went home?

A: I changed my clothes and then I proceeded to the store of my mother.

Q: And where is that store of your mother where you went?

A: It is near our house, walking distance.
Q: What is your mother selling in that store?
A: She sells quail eggs.

Q: And were you able to immediately go to the store of your mother where she was
selling quail eggs?
A: Yes, sir.

Q: And that was past 6:00 p.m. already?

A: Yes, sir.

Q: And what happened when you went to the store where your mother is selling
quail eggs past 6:00 p.m.?
A: My mother asked me to bring home something.

Q: What were these things you were asked by your mother to bring home?
A: The things she used in selling.

Q: And did you obey what your mother told you to bring home something?
A: Yes, Sir.

Q: And what happened to you in going to your house?

A: Totoy pulled me.

Q: Pulled you where?

A: Totoy pulled me towards an uninhabited house.

Q: What happened after Totoy pulled you in an uninhabited house?

A: He told me to lie down on the cement.

Q: What happened after he laid you down on the cement?

A: He removed my shorts and panty. He also removed his shorts.

Q: After Totoy removed your shorts and panty and he also removed his shorts,
what happened next?
A: He inserted his penis inside my vagina.

Q: What did you feel when Totoy inserted his penis inside your vagina?
A: It was painful.

Q: Aside from inserting his penis inside your vagina, what else did you do to you?
A: He kissed me on my lips.

Q: After Totoy inserted his penis inside your vagina and kissed you on your lips,
what did you do?
A: I cried.

Q: What happened when you were crying when he inserted his penis inside your
vagina and kissed you on your lips. What happened next?
A: Somebody heard me crying.

Q: Who heard you crying?

A: Kuya Teofe, Sir.

Q: What happened after you cried and when somebody heard you crying?
A: Totoy ran away.

Q: After Totoy ran away, what happened next?

A: When Totoy ran away, I was left and Kuya Teofe told me to tell the matter to my
parents.

Q: Did you tell your parents what Totoy did to you?

A: Yes, Sir.[68]

On cross-examination, the victim was steadfast in her declarations:

ATTY. BALIAD:

Q: Again, in what particular position were you placed by Totoy when he inserted his
penis inside your vagina?
A: I was lying down.

Q: Aside from lying down, how was your body positioned at that time?
A: He placed on top of me.

Q: After he placed on top of you, what else did he do to you, if any?

A: He started to kiss me and then he inserted his penis inside my vagina.

Q: Did you feel his penis coming in into your vagina?

A: Yes, Sir.

Q: Are you sure that his penis was inserted inside your vagina?
A: Yes, Sir.[69]

When questioned on cross-examination whether she could distinguish a vagina from

an anus, the victim declared that she could and proceeded to demonstrate. She
reiterated that the penis of petitioner penetrated her vagina, thus, consummating
the crime charged:

Atty. Baliad:
Q: Do you recall having stated during the last hearing that the accused, Neil Llave
or "Totoy" inserted his penis in your vagina, do you recall that?
A: Yes, Sir.

Q: And likewise, you testified that you feel that the penis of Neil entered your
vagina?
A: Yes, Sir.

Q: Could you distinguish vagina from your anus?

A: Yes, Sir.

Q: Where is your "pepe?"

A: (Witness pointing to her vagina.)

Q: Where is your anus?

A: (Witness pointing at her back, at the anus.)

Q: In your statement, am I correct to say that Neil, the accused in this case
penetrated only in your vagina and not in your anus?
A: Yes, Sir.

Q: So that, your anus was not even touched by the accused neither by his penis
touched any part of your anus?
A: He did not insert anything on my anus, Sir.[70]

While it is true that Dr. Castillo did not find any abrasion or laceration in the private
complainant's genitalia, such fact does not negate the latter's testimony the
petitioner had carnal knowledge of her. The absence of abrasions and lacerations
does not disprove sexual abuses, especially when the victim is a young girl as in
this case.[71] According to Dr. Castillo, the hymen is elastic and is capable of
stretching and reverting to its original form. [72] The doctor testified that her report
is compatible with the victim's testimony that she was sexually assaulted by
petitioner:

Atty. Baliad:

Q: Do you recall having stated during the last hearing that the accused, Neil Llave
or "Totoy" inserted his penis in your vagina, do you recall that?
A: Yes, Sir.

Q: And likewise, you testified that you feel (sic) that the penis of Neil entered your
vagina?
A: Yes, Sir.

Q: Could you distinguish vagina from your anus?

A: Yes, Sir.

Q: Where is your "pepe'"

A: (Witness pointing to her vagina.)

Q: Where is your anus?

A: (Witness pointing at her back, at the anus.)

Q: In your statement, am I correct to say that Neil, the accused in this case
penetrated only in your vagina and not in your anus?
A: Yes, Sir.

Q: So that, your anus was not even touched by the accused neither by his penis
touched any part of your anus?
A: He did not insert anything on my anus, Sir.

xxxx

Fiscal Barrera:

Q: Based on your testimony doctor, and the medico genital examination

propounded on the report that the victim here, Debbielyn Santos is complaining
that around 6:00 in the evening of September 24, 2002, she was sexually abused
and that on the following day, September 25, you interviewed her and stated to
you that her genitalia was hurting and in binocular (sic) "masakit ang pepe ko, ni-
rape ako," would your findings as contained in this Exh. B and C be compatible with
the allegation if the minor victim that she was sexually abused on September 24.
2002 at around 6:00 p.m.?

Atty. Baliad:
Objection, Your Honor. The one who narrated the incident is the mother.

Court:
What is your objection?

Atty. Baliad:

The objection, Your Honor, is the question propounded is that it was the minor who
made the complaint regarding the allegation.

Fiscal Barrera:
The answer were provided"..

Court:
The doctor is being asked whether or not her findings is compatible with the
complaint of the minor. Overruled. Answer.

Witness:
A It is compatible with the allegation of the minor.

Fiscal Barrera:
Confronting you again with your two (2) medico-genital documents, the Provincial
and Final Report mark[ed] in evidence as Exhs. B and C, at the lower portion of
these two exhibits there appears to be a signature above the typewritten word,
Mariella Castillo, M.D., whose signature is that doctor?
A Both are my signatures, Sir.[73]

Dr. Castillo even testified that the abrasion near the private complainant's anal
orifice could have been caused by petitioner while consummating the crime
charged:

Fiscal Barrera:

Q: With your answer, would it be possible doctor that in the process of the male
person inserting his erect penis inside the vagina, in the process, would it be
possible that this abrasion could have been caused while in the process of inserting
the penis into the vagina touch the portion of the anus where you find the
abrasion?
A: It is possible, Sir.

Q: Now, are you aware, in the course of your examination, that the alleged
perpetrator is a 12-year-old minor?
A: I only fount it out, Sir, when I testified.

Q: Do you still recall your answer that a 12-year-old boy could cause an erection of
his penis?
A: Yes, sir.

Q: To enlight[en] us doctor, we, not being a physician, at what age could a male
person can have erection?
A: Even infants have an erection.[74]

Petitioner' s contention that the private complainant was coached by her parents
into testifying is barren of merit. It bears stressing that the private complainant
testified in a straightforward and spontaneous manner and remained steadfast
despite rigorous and intensive cross-examination by the indefatigable counsel of the
petitioner. She spontaneously pointed to and identified the petitioner as the
perpetrator.

It is inconceivable that the private complainant, then only a seven- year old Grade
II pupil, could have woven an intricate story of defloration unless her plaint was
true.[75] The Presiding Judge of the trial court observed and monitored the private
complainant at close range as she testified and found her testimony credible. Case
law is that the calibration by the trial court of the evidence on record and its
assessment of the credibility of witnesses, as well as its findings of facts and the
conclusions anchored on said findings, are accorded conclusive effect by this Court
unless facts and circumstances of substance were overlooked, misconstrued or
misinterpreted, which, if considered would merit a nullification or reversal of the
decision. We have held that when the offended party is young and immature, from
the age of thirteen to sixteen, courts are inclined to give credence to their account
of what transpired, considering not only their relative vulnerability but also the
shame and embarrassment to which they would be exposed if the matter to which
they testified is not true.[76]

Neither do we lend credence to petitioner's claim that the charge against him is but
a fabrication and concoction of the private complainant's parents. Indeed, petitioner
admitted in no uncertain terms that the spouses had no ill-motive against him.
Thus, Neil testified as follows:

Fiscal Barrera:

Q: As you testified earlier that you have played post cards with Debbielyn Santos
alias Lyn-lyn and you have no quarrel or misunderstanding with Lyn-lyn. Do you
know of any reason why Lyn-lyn complaint (sic) against you for sexual abuse?
A: I don't know of any reason, Sir.

Q: You also testified that you do not have any quarrel or misunderstanding with
Lyn-lyn's parents, spouses Domingo Santos, Jr. and Marilou Santos, do you think of
any reason as to why they would file a complaint against you for molesting their 7-
year-old daughter?
A: I do not know of any reason why they filed a complaint against me, Sir.

Fiscal Barrera:
That would be all, Your Honor.[77]

There is no evidence that the parents of the offended party coached their daughter
before she testified. No mother or father would stoop so low as to subject their
daughter to the tribulations and the embarrassment of a public trial knowing that
such a traumatic experience would damage their daughter's psyche and mar her life
if the charge is not true.[78]

On the other hand, when the parents learned that their daughter had been
assaulted by petitioner, Domingo tried to locate the offender and when he failed, he
and his wife reported the matter to the barangay authorities. This manifested their
ardent desire to have petitioner indicted and punished for his delictual acts.
That petitioner ravished the victim not far from the street where residents passed
by does not negate the act of rape committed by petitioner. Rape is not a respecter
of time and place. The crime may be committed by the roadside and even in
occupied premises.[79] The presence of people nearby does not deter rapists from
committing the odious act.[80] In this case, petitioner was so daring that he ravished
the private complainant near the house of Teofisto even as commuters passed by,
impervious to the fact that a crime was being committed in their midst.

Case law has it that in view of the intrinsic nature of rape, the only evidence that
can be offered to prove the guilt of the offender is the testimony of the offended
party. Even absent a medical certificate, her testimony, standing alone, can be
made the basis of conviction if such testimony is credible. Corroborative testimony
is not essential to warrant a conviction of the perpetrator.[81] Thus, even without
the testimony of Teofisto Bucud, the testimonies of the offended party and Dr.
Castillo constitute evidence beyond reasonable doubt warranting the conviction of
petitioner.

Teofisto's testimony cannot be discredited by petitioner simply because his uncle

caused the demolition of the house where Teofisto and his family were residing. It
bears stressing that Teofisto gave a sworn statement to the police investigator on
the very day that the petitioner raped Debbielyn and narrated how he witnessed
the crime being committed by the petitioner.[82] In the absence of proof of improper
motive, the presumption is that Teofisto had no ill-motive to so testify, hence, his
testimony is entitled to full faith and credit.[83]

The trial court correctly ruled that the petitioner acted with discernment when he
had carnal knowledge of the offended party; hence, the CA cannot be faulted for
affirming the trial court's ruling.

Article 12, paragraph 3 of the Revised Penal Code provides that a person over nine
years of age and under fifteen is exempt from criminal liability, unless he acted with
discernment. The basic reason behind the exempting circumstance is complete
absence of intelligence, freedom of action of the offender which is an essential
element of a felony either by dolus or by culpa. Intelligence is the power necessary
to determine the morality of human acts to distinguish a licit from an illicit
act.[84] On the other hand, discernment is the mental capacity to understand the
difference between right and wrong. The prosecution is burdened to prove that the
accused acted with discernment by evidence of physical appearance, attitude or
deportment not only before and during the commission of the act, but also after
and during the trial.[85] The surrounding circumstances must demonstrate that the
minor knew what he was doing and that it was wrong. Such circumstance includes
the gruesome nature of the crime and the minor's cunning and shrewdness.
In the present case, the petitioner, with methodical fashion, dragged the resisting
victim behind the pile of hollow blocks near the vacant house to insure that
passersby would not be able to discover his dastardly acts. When he was discovered
by Teofisto Bucud who shouted at him, the petitioner hastily fled from the scene to
escape arrest. Upon the prodding of his father and her mother, he hid in his
grandmother's house to avoid being arrested by policemen and remained thereat
until barangay tanods arrived and took him into custody.

The petitioner also testified that he had been an outstanding grade school student
and even received awards. While in Grade I, he was the best in his class in his
academic subjects. He represented his class in a quiz bee contest.[86] At his the age
of 12, he finished a computer course.

In People v. Doqueña,[87] the Court held that the accused-appellant therein acted
with discernment in raping the victim under the following facts:

Taking into account the fact that when the accused Valentin Doqueña committed
the crime in question, he was a 7th grade pupil in the intermediate school of the
municipality of Sual, Pangasinan, and as such pupil, he was one of the brightest in
said school and was a captain of a company of the cadet corps thereof, and during
the time he was studying therein he always obtain excellent marks, this court is
convinced that the accused, in committing the crime, acted with discernment and
was conscious of the nature and consequences of his act, and so also has this court
observed at the time said accused was testifying in his behalf during the trial of this
case.[88]

The CA ordered petitioner to pay P50,000.00 as moral damages and P20,000.00 as

exemplary damages. There is no factual basis for the award of exemplary damages.
Under Article 2231, of the New Civil Code, exemplary damages may be awarded if
the crime was committed with one or more aggravating circumstances. In this case,
no aggravating circumstance was alleged in the Information and proved by the
People; hence, the award must be deleted.

IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for lack of merit.
The decision of the Court of Appeals in CA-G.R. CR No. 26962 is AFFIRMED WITH
MODIFICATION that the award of exemplary damages is DELETED.

SO ORDERED.

[ G.R. No. 169641, September 10, 2009 ]

PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS.
RICHARD O. SARCIA, ACCUSED-APPELLANT.
 DECISION

LEONARDO-DE CASTRO, J.:

On automatic review is the decision[1] dated My 14, 2005 of the Court of Appeals
(CA) in CA-G.R. CR-HC No. 00717 which affirmed, with modifications, an earlier
decision[2] of the Regional Trial Court (RTC) of Ligao City, Branch 13, in Criminal
Case No. 4134, finding herein accused-appellant Richard O. Sarcia alias "Nogi"
guilty beyond reasonable doubt of the crime of rape[3] committed against
AAA,[4] and sentenced him to suffer the penalty of Reclusion Perpetua and to pay
the amount of P50,000.00 as civil indemnity, P50,000.00 as moral damages, and
the cost of the suit. However, the CA modified the penalties imposed by the RTC
by imposing the death penalty, increasing the award of civil indemnity to
P75,000.00, and awarding P25,000.00 as exemplary damages, aside from the
P50,000.00 for moral damages.

The crime of rape was allegedly committed sometime in 1996 against AAA, a five
(5) year old girl. After almost four (4) years, AAA's father filed a complaint[5] for
acts of lasciviousness against herein accused-appellant on July 7, 2000. Upon
review of the evidence, the Office of the Provincial Prosecutor at Ligao, Albay
upgraded the charge to rape.[6] The Information[7] dated September 5, 2000 reads:

That sometime in 1996 at Barangay Doña Tomasa, Municipality of Guinobatan,

Province of Albay, Philippines, and within the jurisdiction of this Honorable Court,
the above-named accused, with lewd and unchaste design, and by means of force,
threats and intimidation, did then and there willfully, unlawfully and feloniously
have sexual intercourse with [AAA], who was then 6 years of age, against her will
and consent, to her damage and prejudice.

ACTS CONTRARY TO LAW.

At his arraignment on October 25, 2000, accused-appellant, with the assistance of

his counsel, entered a plea of not guilty.[8] Thereafter, trial on the merits ensued.

The prosecution presented the oral testimonies of the victim AAA; her minor
cousin; her father; and Dr. Joana Manatlao, the Municipal Health Officer of
Guinobatan, Albay. The defense presented the accused-appellant himself, who
vehemently denied committing the crimes imputed to him and Manuel Casimiro,
Clerk of Court II of the Municipal Trial Court at Guinobatan, Albay.

On January 17, 2003, the trial court rendered its Decision[9] finding the accused-
appellant guilty of the crime of rape and imposed the penalty mentioned above.
The record of this case was forwarded to this Court in view of the Notice of Appeal
filed by the accused- appellant.[10]

Accused-appellant filed his Appellant's Brief[11] on July 15, 2004, while the People,
through the Office of the Solicitor General, filed its Appellee's Brief[12] on December
15, 2004.

Pursuant to our pronouncement in People v. Mateo,[13] modifying the pertinent

provisions of the Revised Rules on Criminal Procedure insofar as they provide for
direct appeals from the RTC to this Court in cases in which the penalty imposed by
the trial court is death, reclusion perpetua or life imprisonment, and the Resolution
dated September 19, 1995 in "Internal Rules of the Supreme Court," the case was
transferred, for appropriate action and disposition, to the CA where it was docketed
as CA-G.R. CR-H.C. No. 00717.

As stated at the beginning hereof, the CA, in its decision of July 14, 2005, in CA-
G.R. CR-H.C. No. 000717, affirmed with modification the judgment of conviction
pronounced by the trial court. We quote the fallo of the CA decision:

WHEREFORE, the judgment of conviction is AFFIRMED. The accused, Richard

Sarcia y Olivera, is ordered to suffer the penalty of DEATH, and to pay the victim,
[AAA], the amount of (1) P75,000.00 as civil indemnity; (2) P50,000.00 as moral
damages, and (3) P25,000.00 as exemplary damages.

Let the entire records of this case be elevated to the Supreme Court for review,
pursuant to A.M. No. 00-5-03-SC (Amendments to the Revised Rules of Criminal
Procedure to Govern Death Penalty Cases), which took effect on October 15, 2004.

SO ORDERED.

On September 30, 2005, the case was elevated to this Court for further review.[14]

In our Resolution[15] of November 15, 2005, we required the parties to

simultaneously submit their respective supplemental briefs. Accused- appellant filed
his Supplemental Brief[16] on April 7, 2006. Having failed to submit one, the Office
of the Solicitor General (OSG) was deemed to have waived the filing of its
supplemental brief.

In his Brief filed before the CA, accused-appellant raised the following assignment
of errors:

I
THE LOWER COURT GRAVELY ERRED IN GIVING CREDENCE TO THE TESTIMONY OF
[AAA], [her cousin] and [her father].

II

THE LOWER COURT GLARINGLY ERRED IN REJECTING THE DEFENSE OF ALIBI

INTERPOSED BY THE ACCUSED WHICH IS MORE CREDIBLE.

III

THE LOWER COURT GRAVELY ERRED IN NOT ACQUITTING THE ACCUSED RICHARD
SARCIA

The evidence for the prosecution is summarized by the OSG in the Appellee's Brief,
as follows:

On December 16, 1996, five-year-old [AAA], together with her [cousin and two
other playmates], was playing in the yard of Saling Crisologo near a mango tree.

Suddenly, appellant appeared and invited [AAA] to go with him to the backyard of
Saling Crisologo's house. She agreed. Unknown to appellant, [AAA's cousin]
followed them.

Upon reaching the place, appellant removed [AAA's] shorts and underwear. He also
removed his trousers and brief. Thereafter, he ordered [AAA] to lie down on her
back. Then, he lay on top of her and inserted his penis into [AAA's] private
organ. Appellant made an up-and-down movement ("Nagdapadapa tabi"). [AAA]
felt severe pain inside her private part and said "aray." She also felt an intense pain
inside her stomach.

[AAA's cousin], who positioned herself around five (5) meters away from them,
witnessed appellant's dastardly act. Horrified, [AAA's cousin] instinctively rushed to
the house of [AAA's] mother, her aunt Emily, and told the latter what she had seen.
[AAA's] mother answered that they (referring to {AAA and her cousin} were still
very young to be talking about such matters.

Meanwhile, after satisfying his lust, appellant stood up and ordered [AAA] to put on
her clothes. Appellant then left.

Perplexed, [AAA's cousin] immediately returned to the backyard of Saling Crisologo

where she found [AAA] crying. Appellant, however, was gone. [AAA's cousin]
approached [AAA] and asked her what appellant had done to her. When [AAA] did
not answer, [her cousin] did not ask her any further question and just accompanied
her home.

At home, [AAA] did not tell her mother what appellant had done to her because she
feared that her mother might slap her. Later, when her mother washed her body,
she felt a grating sensation in her private part. Thereafter, [AAA] called for [her
cousin]. [AAA's cousin] came to their house and told [AAA's] mother again that
appellant had earlier made an up-and-down movement on top of [AAA]. [AAA's
mother], however did not say anything. At that time, [AAA's] father was working in
Manila.

Dr. Joana Manatloa is the Municipal Health Officer of Guinobatan, Albay. She
testified that: (1) it was the rural health officer, Dr. Reantaso, who conducted a
physical examination on [AAA]; (2) Dr. Reantaso prepared and signed a medico-
legal certificate containing the result of [AAAj's examination; (3) Dr. Reantaso,
however, had already resigned as rural health officer of Guinobatan, Albay; (4) as a
medical doctor, she can interpret, the findings in said medico-legal certificate issued
to [AAA]; (5) [AAA]'s medical findings are as follows: "negative for introital vulvar
laceration nor scars, perforated hymen, complete, pinkish vaginal mucosa, vaginal
admits little finger with resistance; (6) the finding "negative for introital bulvar
laceration nor scars" means, in layman's language, that there was no showing of
any scar or wound, and (7) there is a complete perforation of the hymen which
means that it could have been subjected to a certain trauma or pressure such as
strenuous exercise or the entry of an object like a medical instrument or penis.[17]

On the other hand, the trial court summarized the version of the defense as
follows:

Richard Sarcia, 24 years old, single, student and a resident of Dona Tomasa,
Guinobatan, Albay denied he raped [AAA]. While he knows [AAA's] parents,
because sometimes they go to their house looking for his father to borrow money,
he does not know [AAA] herself. His father retired as a fireman from Crispa in 1991
while his mother worked as an agriculturist in the Municipality of Teresa, Antipolo,
Rizal. As an agriculturist of the Department of Agriculture, his mother would bring
seedlings and attend seminars in Batangas and Baguio. They were residing in
Cainta, Rizal when sometime in 1992 they transferred residence to Guinobatan,
Albay. His father is from barangay Masarawag while his mother is from barangay
Dona Tomasa both of Guinobatan, Albay. After their transfer in Guinobatan, his
mother continued to be an agriculturist while his father tended to his 1-hectare
coconut land. Richard testified he was between fourteen (14) and fifteen (15) years
old in 1992 when they transferred to Guinobatan. Between 1992 and 1994 he was
out of school. But from 1994 to 1998 he took his high school at Masarawag High
School. His daily routine was at about 4:00 o'clock in the afternoon after school
before proceeding home he would usually play basketball at the basketball court
near the church in Dona Tomasa about 1 kilometer away from their house. When
her mother suffered a stroke in 1999 he and his father took turns taking care of his
mother. Richard denied molesting other girls ... and was most surprised when he
Vas accused of raping [AAA]. He knows Saling Crisologo and the latter's place
which is more than half kilometer to their house. Richard claimed Salvacion Bobier,
grandmother of Mae Christine Camu, whose death on May 7, 2000 was imputed to
him and for which a case for Murder under Criminal Case No. 4087 was filed against
him with the docile cooperation of [AAA's] parents who are related to Salvacion,
concocted and instigated [AAA's] rape charge against him to make the case for
Murder against him stronger and life for him miserable. He was incarcerated on
May 10, 2000 for the Murder charge and two (2) months later while he already in
detention, the rape case supposedly committed in 1996 was filed against him in the
Municipal Trial Court (MTC) of Guinobatan, Albay. He was to learn about it from his
sister, Marivic, on a Sunday afternoon sometime on July 20, 2000 when his sister
visited him in jail. He naturally got angry when he heard of this rape charge
because he did not do such thing and recalled CA Record, pp. 77-105. telling his
sister they can go to a doctor and have the child examine to prove he did not rape
her. Subsequently, from his sister again he was to learn that the rape case was
ordered dismissed.

On cross-examination, Richard admitted [AAA's] mother, is also related to his

father, [AAA mother's] father, being a second cousin of his father. Richard is
convinced it is not the lending of money by his father to the AAA's family as the
motive for the latter to file the rape case against him but the instigation of
Saivacion Bobier.

Manuel A. Casimiro, Clerk of Court II of the Municipal Trial Court (MTC),

Guinobatan, Albay, testified on the records of Criminal Case No. 7078 filed in MTC
Guinobatan, Albay against Richard Sarcia for Rape in relation to RA 7610 relative to
the alleged withdrawal of said rape case but the accused through counsel failed to
formally offer the marked exhibits relative to said case.[18]

Accused-appellant alleges that the trial court erred in convicting him, as the
prosecution was not able to prove his guilt beyond reasonable doubt. He assailed
the credibility of the prosecution witnesses, AAA, her cousin and her father on the
following grounds: (1) the testimonies of AAA and her cousin were inconsistent with
each other; (2) the victim was confused as to the date and time of the commission
of the offense; (3) there was a four-year delay in filing the criminal case, and the
only reason why they filed the said case was "to help Saivacion Bobier get a
conviction of this same accused in a murder case filed by said Saivacion Bobier for
the death of her granddaughter Mae Christine Camu on May 7, 2000." Accused-
appellant stressed that the same Saivacion Bobier helped AAA's father in fding the
said case for rape. Accused-appellant also claimed that the prosecution failed to
prove that he employed force, threats or intimidation to achieve his end. Finally,
accused-appellant harped on the finding in the medical certificate issued by Dr.
Reantaso and interpreted by Dr. Joana Manatlao, stating "negative for introital
bulvar laceration nor scar which means that there was no showing of any scar or
wound."

In his Appellee's Brief accused-appellant pointed out the inconsistencies between

AAA's and her cousin's testimonies as follows: (1) the cousin testified that she
played with AAA at the time of the incident, while AAA testified that she was doing
nothing before accused-appellant invited her to the back of the house of a certain
Saling; (2) the cousin testified that when she saw accused-appellant doing the
push-and-pull motion while on top of AAA, the latter shouted in a loud voice
contrary to AAA's testimony that when accused-appellant was inside her and
started the up-and-down motion, she said "aray"; (3) when the cousin returned to
AAA after telling the latter's mother what accused-appellant had done to AAA, she
found AAA crying. AAA however testified that, after putting on her clothes, she
invited the cousin to their house; and (4) the cousin testified that other children
were playing at the time of the incident, but AAA testified that there were only four
of them who were playing at that time.

As it is oft-repeated, inconsistencies in the testimonies of witnesses, which refer

only to minor details and collateral matters, do not affect the veracity and weight of
their testimonies where there is consistency in relating the principal occurrence and
the positive identification of the accused. Slight contradictions in fact even serve to
strengthen the credibility of the witnesses and prove that their testimonies are not
rehearsed. Nor are such inconsistencies, and even improbabilities, unusual, for
there is no person with perfect faculties or senses.[19] The alleged inconsistencies in
this case are too inconsequential to overturn the findings of the court a quo. It is
important that the two prosecution witnesses were one in saying that it was
accused-appellant who sexually abused AAA. Their positive, candid and
straightforward narrations of how AAA was sexually abused by accused- appellant
evidently deserve full faith and credence. When the rape incident happened, AAA
was only five (5) years old; and when she and her cousin testified, they were barely
9 and 11 years old, respectively. This Court has had occasion to rule that the
alleged inconsistencies in the testimonies of the witnesses can be explained by their
age and their inexperience with court proceedings, and that even the most candid
of witnesses commit mistakes and make confused and inconsistent statements.
This is especially true of young witnesses, who could be overwhelmed by the
atmosphere of the courtroom. Hence, there is more reason to accord them ample
space for inaccuracy.[20]

Accused-appellant capitalizes on AAA's inability to recall the exact date when the
incident in 1996 was committed. Failure to recall the exact date of the crime,
however, is not an indication of false testimony, for even discrepancies regarding
exact dates of rapes are inconsequential and immaterial and cannot discredit the
credibility of the victim as a witness.[21] In People v. Purazo,[22] We ruled:
We have ruled, time and again that the date is not an essential element of the
crime of rape, for the gravamen of the offense is carnal knowledge of a woman. As
such, the time or place of commission in rape cases need not be accurately stated.
As early as 1908, we already held that where the time or place or any other fact
alleged is not an essential element of the crime charged, conviction may be had on
proof of the commission of the crime, even if it appears that the crime was not
committed at the precise time or place alleged, or if the proof fails to sustain the
existence of some immaterial fact set out in the complaint, provided it appears that
the specific crime charged was in fact committed prior to the date of the filing of
the complaint or information within the period of the statute of limitations and at a
place within the jurisdiction of the court.

Also in People v. Salalima,[23] the Court held:

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, AAA's declaration that the rape incident took place on December 15,
1996 was explained by the trial court, and we quote:

The rape took place in 1996. As earlier noted by the Court the date December 15,
1996 mentioned by [AAA] may have been arbitrarily chosen by the latter due to the
intense cross-examination she was subjected but the Court believes it could have
been in any month and date in the year 1996 as in fact neither the information nor
[AAA's] sworn statement mention the month and date but only the year.[24]

Likewise, witnesses' credibility is not affected by the delay in the filing of the case
against accused-appellant. Neither does the delay bolster accused-appellant's claim
that the only reason why this case was filed against him was "to help Salvacion
Bobier get a conviction of this same accused-appellant in the case of murder filed
by Salvacion Bobier for the death of her granddaughter Mae Christine Camu on May
7, 2000."

The rape victim's delay or hesitation in reporting the crime does not destroy the
truth of the charge nor is it an indication of deceit. It is common for a rape victim to
prefer silence for fear of her aggressor and the lack of courage to face the public
stigma of having been sexually abused. In People v. Coloma[25] we even considered
an 8-year delay in reporting the long history of rape by the victim's father as
understandable and not enough to render incredible the complaint of a 13-year-old
daughter. Thus, in the absence of other circumstances that show that the charge
was a mere concoction and impelled by some ill motive, delay in the filing of the
complainant is not sufficient to defeat the charge. Here, the failure of AAA's
parents to immediately file this case was sufficiently justified by the complainant's
father in the latter's testimony, thus:

Q But, did you not say, please correct me if I am wrong, you got angry when your wife told you
that something happened to Hazel way back in 1996?

A Yes, sir.

Q Yet, despite your anger you were telling us that you waited until June to file this case?

A After I heard about the incident, I and my wife had a talk for which reason that during that
time we had no money yet to use in filing the case, so we waited. When we were able to save
enough amounts, we filed the case.[26]

Accused-appellant also contends that he could not be liable for rape because there
is no proof that he employed force, threats or intimidation in having carnal
knowledge of AAA. Where the girl is below 12 years old, as in this case, the only
subject of inquiry is whether "carnal knowledge" took place. Proof of force,
intimidation or consent is unnecessary, since none of these is an element of
statutory rape. There is a conclusive presumption of absence of free consent when
the rape victim is below the age of twelve.[27]

Accused-appellant harps on the medical report, particularly the conclusion quoted

as follows: "negative for introital bulvar laceration nor scars, which means, in
layman language, that there was no showing of any scar or wound." The Court has
consistently ruled that the presence of lacerations in the victim's sexual organ is not
necessary to prove the crime of rape and its absence does not negate the fact of
rape. A medical report is not indispensable in a prosecution for rape.[28] What is
important is that AAA's testimony meets the test of credibility, and that is sufficient
to convict the accused.

Accused-appellant's defense of denial was properly rejected. Time and time again,
we have ruled that denial like alibi is the weakest of all defenses, because it is easy
to concoct and difficult to disprove. Furthermore, it cannot prevail over the positive
and unequivocal identification of appellant by the offended party and other
witnesses. Categorical and consistent positive identification, absent any showing of
ill motive on the part of the eyewitness testifying on the matter, prevails over the
appellants' defense of denial and alibi.[29] The shallow hypothesis put forward by
accused-appellant that he was accused of raping AAA due to the instigation of
Salvacion Bobier hardly convinces this Court. On this score, the trial court aptly
reached the following conclusion:

...True, Salvacion Bobier actively assisted AAA's family file the instant case against
the accused, but the Court believes [AAA's] parents finally decided to file the rape
case because after they have come to realize after what happened to Mae Christine
Camu that what previously [AAA and her cousin] told her mother and which the
latter had continually ignored is after all true.

AAA was barely 9 years of age when she testified. It has been stressed often
enough that the testimony of rape victims who are young and immature deserve
full credence. It is improbable for a girl of complainant's age to fabricate a charge
so humiliating to herself and her family had she not been truly subjected to the
painful experience of sexual abuse. At any rate, a girl of tender years, innocent and
guileless, cannot be expected to brazenly impute a crime so serious as rape to any
man if it were not true.[30] Parents would not sacrifice their own daughter, a child
of tender years at that, and subject her to the rigors and humiliation of public trial
for rape, if they were not motivated by an honest desire to have their daughter's
transgressor punished accordingly.[31] Hence, the logical conclusion is that no such
improper motive exists and that her testimony is worthy of full faith and credence.

The guilt of accused-appellant having been established beyond reasonable doubt,

we discuss now the proper penalty to be imposed on him.

Article 335 of the Revised Penal Code, as amended by Republic Act No.
7659,[32] was the governing law at the time the accused-appellant committed the
rape in question. Under the said law, the penalty of death shall be imposed when
the victim of rape is a child below seven years of age. In this case, as the age of
AAA, who was five (5) years old at the time the rape was committed, was alleged in
the information and proven during trial by the presentation of her birth certificate,
which showed her date of birth as January 16, 1991, the death penalty should be
imposed.

However, this Court finds ground for modifying the penalty imposed by the CA. We
cannot agree with the CA's conclusion that the accused- appellant cannot be
deemed a minor at the time of the commission of the offense to entitle him to the
privileged mitigating circumstance of minority pursuant to Article 68(2)[33] of the
Revised Penal Code. When accused appellant testified on March 14, 2002, he
admitted that he was 24 years old, which means that in 1996, he was 18 years of
age. As found by the trial court, the rape incident could have taken place "in any
month and date in the year 1996." Since the prosecution was not able to prove the
exact date and time when the rape was committed, it is not certain that the crime
of rape was committed on or after he reached 18 years of age in 1996. In
assessing the attendance of the mitigating circumstance of minority, all doubts
should be resolved in favor of the accused, it being more beneficial to the latter. In
fact, in several cases, this Court has appreciated this circumstance on the basis of a
lone declaration of the accused regarding his age.[34]

Under Article 68 of the Revised Penal Code, when the offender is a minor under 18
years, the penalty next lower than that prescribed by law shall be imposed, but
always in the proper period. However, for purposes of determining the proper
penalty because of the privileged mitigating circumstance of minority, the penalty
of death is still the penalty to be reckoned with.[35] Thus, the proper imposable
penalty for the accused- appellant is reclusion perpetua.

It is noted that the Court is granted discretion in awarding damages provided in the
Civil Code, in case a crime is committed. Specifically, Article 2204 of the Civil Code
provides that "in crimes, the damages to be adjudicated may be respectively
increased or lessened according to the aggravating or mitigating
circumstances." The issue now is whether the award of damages should be
reduced in view of the presence here of the privileged mitigating circumstance of
minority of the accused at the time of the commission of the offense.

A review of the nature and purpose of the damages imposed on the convicted
offender is in order. Article 107 of the Revised Penal Code defines the term
"indemnification," which is included in the civil liability prescribed by Article 104 of
the same Code, as follows:

Art. 107. Indemnification-What is included. — Indemnification for consequential

damages shall include not only those caused the injured party, but also those
suffered by his family or by a third person by reason of the crime.

Relative to civil indemnity, People v. Victor[36] ratiocinated as follows:

The lower court, however, erred in categorizing the award of P50,000.00 to the
offended party as being in the nature of moral damages. We have heretofore
explained in People v. Gementiza that the indemnity authorized by our criminal law
as civil liability ex delicto for the offended party, in the amount authorized by the
prevailing judicial policy and aside from other proven actual damages, is itself
equivalent to actual or compensatory damages in civil law. It is not to be
considered as moral damages thereunder, the latter being based on different jural
foundations and assessed by the court in the exercise of sound discretion.

One other point of concern has to be addressed. Indictments for rape continue
unabated and the legislative response has been in the form of higher penalties. The
Court believes that, on like considerations, the jurisprudenttal path on the civil
aspect should follow the same direction. Hence, starting with the case at bar, if the
crime of rape is committed or effectively qualified by any of the circumstances
under which the death penalty is authorized by the present amended law, the
indemnity for the victim shall be in the increased amount of not Jess than
P75.000.00. This is not only a reaction to the apathetic societal perception of the
penal law, and the financial fluctuations over time, but also an expression of the
displeasure of the Court over the incidence of heinous crimes against chastity.
(Emphasis Supplied)

The Court has had the occasion to rule that moral damages are likewise
compensatory in nature. In San Andres v. Court of Appeals,[37] we held:

xxx Moral damages, though incapable of pecuniary estimation. are in the category
of an award designed to compensate the claimant for actual injury suffered and not
to impose a penalty on the wrongdoer. (Emphasis Supplied)

In another case, this Court also explained:

What we call moral damages are treated in American jurisprudence

as compensatory damages awarded for mental pain and suffering or mental
anguish resulting from a wrong (25 C.J.S. 815).[38] (Emphasis Supplied)

Thus, according to law and jurisprudence, civil indemnity is in the nature of actual
and compensatory damages for the injury caused to the offended party and that
suffered by her family, and moral damages are likewise compensatory in nature.
The fact of minority of the offender at the time of the commission of the offense
has no bearing on the gravity and extent of injury caused to the victim and her
family, particularly considering the circumstances attending this case. Here, the
accused-appelant could have been eighteen at the time of the commission of the
rape. He was accorded the benefit of the privileged mitigating circumstance of
minority because of a lack of proof regarding his actual age and the date of the
rape rather than a moral or evidentiary certainty of his minority.

In any event, notwithstanding the presence of the privileged mitigating

circumstance of minority, which warrants the lowering of the public penalty by one
degree, there is no justifiable ground to depart from the jurisprudential trend in the
award of damages in the case of qualified rape, considering the compensatory
nature of the award of civil indemnity and moral damages. This was the same
stance this Court took in People v. Candelario,[39] a case decided on July 28, 1999,
which did not reduce the award of damages. At that time, the damages amounted
to P75,000.00 for civil indemnity and P50,000.00 for moral damages, even if the
public penalty imposed on the accused was lowered by one degree, because of the
presence of the privileged mitigating circumstance of minority.

The principal consideration for the award of damages, under the ruling in People v.
Salome[40] and People v. Quiachon[41] is the penalty provided by law or
imposable for the offense because of its heinousness, not the public
penalty actually imposed on the offender.
Regarding the civil indemnity and moral damages, People v. Salome explained the
basis for increasing the amount of said civil damages as follows:

The Court, likewise, affirms the civil indemnity awarded by the Court of Appeals to
Sally in accordance with the ruling in People v. Sambrano which states:

"As to damages, we have held that if the rape is perpetrated with any of the
attending qualifying circumstances that require the imposition of the death
penalty, the civil indemnity for the victim shall P75,000.00 ... Also, in rape cases,
moral damages are awarded without the need proof other than the fact of rape
because it is assumed that the victim has suffered moral injuries entitling her to
such an award. However, the trial court's award of P50,000.00 as moral damages
should also be increased to P75,000 pursuant to current jurisprudence on qualified
rape."

It should be noted that 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. Consequently, the civil indemnity for the victim
is still P75,000.00.

People v. Quiachon also ratiocinates as follows:

With respect to the award of damages, the appellate court, following prevailing
jurisprudence, correctly awarded the following amounts; P75,000.00 as civil
indemnity which is awarded if the crime is qualified by circumstances
warranting the imposition of the death penalty; P75,000.00.00 as moral
damages because the victim is assumed to have suffered moral injuries, hence,
entitling her to an award of moral damages even without proof thereof, x x x

Even if the penalty of death is not to be imposed on the appellant because of the
prohibition in R.A. No. 9346, the civil indemnity of P75,000.00 is still
proper because, following the ratiocination in People v. Victor, 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 offense. The Court declared that the
award of P75,000.00 shows "not only a reaction to the apathetic societal
perception of the penal law and the financial fluctuations over time but
also the expression of the displeasure of the court of the incidence of
heinous crimes against chastity."

The litmus test therefore, in the determination of the civil indemnity is the heinous
character of the crime committed, which would have warranted the imposition of
the death penalty, regardless of whether the penalty actually imposed is reduced
to reclusion perpetua.
As to the award of exemplary damages, Article 2229 of the Civil Code provides that
exemplary or corrective damages are imposed in addition to the moral, temperate,
liquidated or compensatory damages. Exemplary damages are not recoverable as a
matter of right. The requirements of an award of exemplary damagees are: (1)
they may be imposed by way of example in addition to compensatory damages,
and only after the claimant's right to them has been established; (2) they cannot
be recovered as a matter of right, their determination depending upon the amount
of compensatory damages that may be awarded to the claimant; (3) the act must
be accompanied by bad faith or done in a wanton, fraudulent, oppressive or
malevolent manner.[42] Since the compensatory damages, such as the civil
indemnity and moral damages, are increased when qualified rape is committed, the
exemplary damages should likewise be increased in accordance with prevailing
jurisprudence.[43]

In sum, the increased amount of P75,000.00 each as civil indemnity and moral
damages should be maintained. It is also proper and appropriate that the award of
exemplary damages be likewise increased to the amount of P30,000.00 based on
the latest jurisprudence on the award of damages on qualified rape. Thus, the CA
correctly awarded P75,000.00 as civil indemnity. However the award of P50,000.00
as moral damages is increased to P75,000.00[44] and that of P25,000.00 as
exemplary damages is likewise increased to P30,000.00.[45]

Meanwhile, when accused-appellant was detained at the New Bilibid Prison pending
the outcome of his appeal before this Court, Republic Act (R.A.) No. 9344,
the Juvenile Justice and Welfare Act of 2006 took effect on May 20, 2006. The RTC
decision and CA decision were promulgated on January 17, 2003 and July 14, 2005,
respectively. The promulgation of the sentence of conviction of accused-appellant
handed down by the RTC was not suspended as he was about 25 years of age at
that time, in accordance with Article 192 of Presidential Decree (P.D.) No. 603, The
Child and Youth Welfare Code[46] and Section 32 of A.M. No. 02-1-18-SC, the Rule
on Juveniles in Conflict with the Law[47] Accused-appellant is now approximately 31
years of age. He was previously detained at the Albay Provincial Jail at Legaspi City
and transferred to the New Bilibid Prison, Muntinlupa City on October 13, 2003.

R.A. No. 9344 provides for its retroactive application as follows:

Sec. 68. Children Who Have Been Convicted and are Serving Sentence. - Persons
who have been convicted and are serving sentence at the time of the effectivity of
this Act, and who were below the age of eighteen (18) years at the time of the
commission of the offense for which they were convicted and are serving sentence,
shall likewise benefit from the retroactive application of this Act. x x x

The aforequoted provision allows the retroactive application of the Act to those who
have been convicted and are serving sentence at the time of the effectivity of this
said Act, and who were below the age of 18 years at the time of the commission of
the offense. With more reason, the Act should apply to this case wherein the
conviction by the lower court is still under review. Hence, it is necessary to
examine which provisions of R.A. No. 9344 shall apply to accused-appellant, who
was below 18 years old at the time of the commission of the offense.

Sec. 38 of R.A. No. 9344 provides for the automatic suspension of sentence of a
child in conflict with the law, even if he/she is already 18 years of age or more at
the time he/she is found guilty of the offense charged. It reads:

Sec. 38. Automatic Suspension of Sentence. - Once the child who is under eighteen
(18) years of age at the time of the commission of the offense is found guilty of the
offense charged, the court shall determine and ascertain any civil liability which
may have resulted from the offense committed. However, instead of pronouncing
the judgment of conviction, the court shall place the child in conflict with the law
under suspended sentence, without need of application: Provided, however, That
suspension of sentence shall still be applied even if the juvenile is already eighteen
(18) of age or more at the time of the pronouncement of his/her guilt.

Upon suspension of sentence and after considering the various circumstances of the
child, the court shall impose the appropriate disposition measures as provided in
the Supreme Court on Juvenile in Conflict with the Law.

The above-quoted provision makes no distinction as to the nature of the offense

committed by the child in conflict with the law, unlike P.D. No. 603 and A.M. No.
02-1-18-SC.[48] The said P.D. and Supreme Court (SC) Rule provide that the benefit
of suspended sentence would not apply to a child in conflict with the law if, among
others, he/she has been convicted of an offense punishable by death, reclusion
perpetua or life imprisonment. In construing Sec. 38 of R.A. No. 9344, the Court is
guided by the basic principle of statutory construction that when the law does not
distinguish, we should not distinguish.[49] Since R.A. No. 9344 does not distinguish
between a minor who has been convicted of a capital offense and another who has
been convicted of a lesser offense, the Court should also not distinguish and should
apply the automatic suspension of sentence to a child in conflict with the law who
has been found guilty of a heinous crime.

Moreover, the legislative intent, to apply to heinous crimes the automatic

suspension of sentence of a child in conflict with the law can be gleaned from the
Senate deliberations[50] on Senate Bill No. 1402 (Juvenile Justice and Delinquency
Prevention Act of 2005), the pertinent portion of which is quoted below:

If a mature minor, maybe 16 years old to below 18 years old is charged, accused
with, or may have committed a serious offense, and may have acted with
discernment, then the child could be recommended by the Department of Social
Welfare and Development (DSWD), by the Local Council for the Protection of
Children (LCPC), or by my proposed Office of Juvenile Welfare and Restoration to
go through a judicial proceeding; but the welfare, best interests, and restoration of
the child should still be a primordial or primary consideration. Even in heinous
crimes, the intention should still be the child's restoration, rehabilitation and
reintegration. xxx (Italics supplied)

Nonetheless, while Sec, 38 of R.A. No. 9344 provides that suspension of sentence
can still be applied even if the child in conflict with the law is already eighteen (18)
years of age or more at the time of the pronouncement of his/her guilt, Sec. 40 of
the same law limits the said suspension of sentence until the said child reaches the
maximum age of 21, thus:

Sec. 40. Return of the Child in Conflict with the Law to Court. - If the court finds
that the objective of the disposition measures imposed upon the child in conflict
with the law have not been fulfilled, or if the child in conflict with the law has
willfully failed to comply with the condition of his/her disposition or rehabilitation
program, the child in conflict with the law shall be brought before the court for
execution of judgment.

If said child in conilict with the law has reached eighteen (18) years of age while
under suspended sentence, the court shall determine whether to discharge the child
in accordance with this Act, to order execution of sentence, or to extend the
suspended sentence for a certain specified period or until the child reaches
the maximum age of twenty-one (21) years, (emphasis ours)

To date, accused-appellant is about 31 years of age, and the judgment of the RTC
had been promulgated, even before the effectivity of R.A. No. 9344. Thus, the
application of Sees. 38 and 40 to the suspension of sentence is now moot and
academic.[51] However, accused-appellant shall be entitled to appropriate
disposition under Sec. 51 of R.A. No. 9344, which provides for the confinement of
convicted children as follows:

Sec. 51. Confinement of Convicted Children in Agricultural Camps and Other

Training Facilities. - A child in conflict with the law may, after conviction and upon
order of the court, be made to serve his/her sentence, in lieu of confinement in a
regular penal institution, in an agricultural camp and other training facilities that
may be established, maintained, supervised and controlled by the BUCOR, in
coordination with the DSWD.

The civil liability resulting from the commission of the offense is not affected by the
appropriate disposition measures and shall be enforced in accordance with law.[52]

WHEREFORE, the decision of the CA dated July 14, 2005 in CA- G.R. CR-H.C. No.
00717 is hereby AFFIRMED with the following MODIFICATIONS: (1) the
penalty of death imposed on accused-appellant is reduced to reclusion
perpetua;[53] and (2) accused-appellant is ordered to pay the victim the amount of
P75,000.00 and P30,000.00 as moral damages and exemplary damages,
respectively. The award of civil indemnity in the amount of P75,000.00 is
maintained. However, the case shall be REMANDED to the court a quo for
appropriate disposition in accordance with Sec. 51 of R.A. 9344.

SO ORDERED.

[ G.R. No. 186227, July 20, 2011 ]

PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS.
ALLEN UDTOJAN MANTALABA, ACCUSED-APPELLANT.

DECISION

PERALTA, J.:

For this Court's consideration is the Decision [1] dated July 31, 2008 of the Court of
Appeals (CA) in CA-G.R. CR-H.C. No. 00240-MIN, affirming the Omnibus
Judgment [2] dated September 14, 2005, of the Regional Trial Court, Branch 1,
Butuan City in Criminal Case No. 10250 and Criminal Case No. 10251, finding
appellant Allen Udtojan Mantalaba, guilty beyond reasonable doubt of violation of
Sections 5 and 11, Article II of Republic Act (RA) 9165.

The facts, as culled from the records, are the following:

The Task Force Regional Anti-Crime Emergency Response (RACER) in Butuan City
received a report from an informer that a certain Allen Mantalaba, who was
seventeen (17) years old at the time, was selling shabu at Purok 4, Barangay 3,
Agao District, Butuan City. Thus, a buy-bust team was organized, composed of
PO1 Randy Pajo, PO1 Eric Simon and two (2) poseur-buyers who were provided
with two (2) pieces of P100 marked bills to be used in the purchase.

Around 7 o'clock in the evening of October 1, 2003, the team, armed with the
marked money, proceeded to Purok 4, Barangay 3, Agao District, Butuan City for
the buy-bust operation. The two poseur-buyers approached Allen who was sitting
at a corner and said to be in the act of selling shabu. PO1 Pajo saw the poseur-
buyers and appellant talking to each other. Afterwards, the appellant handed a
sachet of shabu to one of the poseur-buyers and the latter gave the marked money
to the appellant. The poseur-buyers went back to the police officers and told them
that the transaction has been completed. Police officers Pajo and Simon rushed to
the place and handcuffed the appellant as he was leaving the place.
The police officers, still in the area of operation and in the presence
of barangay officials Richard S. Tandoy and Gresilda B. Tumala, searched the
appellant and found a big sachet of shabu. PO1 Simon also pointed to
the barangay officials the marked money, two pieces of P100 bill, thrown by the
appellant on the ground.

After the operation, and in the presence of the same barangay officials, the police
officers made an inventory of the items recovered from the appellant which are: (1)
one big sachet of shabu which they marked as RMP-1-10-01-03; (2) one small
sachet of shabu which they marked as RMP 2-10-01-03; and (3) two (2) pieces of
one hundred pesos marked money and a fifty peso (P50) bill. Thereafter, a letter-
request was prepared by Inspector Ferdinand B. Dacillo for the laboratory
examination of the two (2) sachets containing a crystalline substance, ultra-violet
examination on the person of the appellant as well as the two (2) pieces of one
hundred pesos marked money. The request was brought by PO1 Pajo and
personally received by Police Inspector Virginia Sison-Gucor, Forensic Chemical
Officer of the Regional Crime Laboratory Office XII Butuan City, who immediately
conducted the examination. The laboratory examination revealed that the appellant
tested positive for the presence of bright orange ultra-violet fluorescent powder;
and the crystalline substance contained in two sachets, separately marked as RMP-
1-10-01-03 and RMP-2-10-01-03, were positively identified as methamphetamine
hydrochloride.

Thereafter, two separate Informations were filed before the RTC of Butuan City
against appellant for violation of Sections 5 and 11 of RA 9165, stating the
following:

Criminal Case No. 10250

That on or about the evening of October 1, 1003 at Purok 4, Barangay 3, Agao,

Butuan City, Philippines and within the jurisdiction of this Honorable Court, the
above-named accused, without authority of law, did then and there willfully,
unlawfully, and feloniously sell zero point zero four one two (0.0412) grams of
methamphetamine hydrochloride, otherwise known as shabu which is a dangerous
drug.

CONTRARY TO LAW : (Violation of Sec. 5, Art. II of R.A. No. 9165). [3]

Criminal Case No. 10251

That on or about the evening of October 1, 2003 at Purok 4, Barangay 3, Agao,

Butuan City, Philippines and within the jurisdiction of this Honorable Court, the
above-named accused, without authority of law, did then and there willfully,
unlawfully and feloniously possess zero point six one three one (0.6131) grams of
methamphetamine hydrochloride, otherwise known as shabu, which is a dangerous
drug.

CONTRARY TO LAW: (Violation of Section 11, Art. II of R.A. No. 9165). [4]

Eventually, the cases were consolidated and tried jointly.

Appellant pleaded NOT GUILTY to the charges against him. Thereafter, trial on the
merits ensued.

In its Omnibus Judgment [5] dated September 14, 2005, the RTC found the
appellant guilty beyond reasonable doubt of the offense charged, the dispositive
portion of which, reads:

WHEREFORE, the Court hereby finds accused Allen Mantalaba y Udtojan GUILTY
beyond reasonable doubt in Criminal Case No. 10250 for selling shabu, a dangerous
drug, as defined and penalized under Section 5, Article II of Republic Act No.
9165. As provided for in Sec. 98 of R.A. 9165, where the offender is a minor, the
penalty for acts punishable by life imprisonment to death shall be reclusion
perpetua to death. As such, Allen Mantalaba y Udtojan is hereby sentenced
to RECLUSION PERPETUA and to pay a fine of Five Hundred Thousand Pesos
(P500,000.00).

In Criminal Case No. 10251, the Court likewise finds accused Allen Mantalaba y
Udtojan GUILTY beyond reasonable doubt for illegally possessing shabu, a
dangerous drug, weighing 0.6131 gram as defined and penalized under Section 11,
Article II of Republic Act No. 9165 and accused being a minor at the time of the
commission of the offense, after applying the Indeterminate Sentence Law, he is
accordingly sentenced to six (6) years and one (1) day, as minimum, to eight (8)
years, as maximum of prision mayor and to pay a fine of Three Hundred Thousand
Pesos (P300,000.00).

SO ORDERED. [6]

The CA affirmed in toto the decision of the RTC. It disposed of the case as follows:

WHEREFORE, the Decision of the Regional Trial Court, Branch 1, Butuan City dated
September 14, 2005 appealed from finding the accused-appellant Allen Udtojan
Mantalaba guilty beyond reasonable doubt with the crime of Violation of Section 5
and Section 11, Article II of Republic Act 9165, otherwise known as the
Comprehensive Dangerous Drugs Act, is AFFIRMED in toto, with costs against
accused-appellant.

SO ORDERED. [7]
Thus, the present appeal.

Appellant states the lone argument that the lower court gravely erred in convicting
him of the crime charged despite failure of the prosecution to prove his guilt beyond
reasonable doubt.

According to appellant, there was no evidence of actual sale between him and the
poseur-buyer. He also argues that the chain of custody of the seized shabu was
not established. Finally, he asserts that an accused should be presumed innocent
and that the burden of proof is on the prosecution.

The petition is unmeritorious.

Appellant insists that the prosecution did not present any evidence that an actual
sale took place. However, based on the testimony of PO1 Randy Pajo, there is no
doubt that the buy-bust operation was successfully conducted, thus:

PROS. RUIZ:
Q: Will you explain to this Honorable Court why did you conduct and how did you
conduct your buy-bust operation at the time?
A: We conducted a buy-bust operation because of the report from our civilian
assets that Allen Mantalaba was engaged in drug trade and selling shabu. And
after we evaluated this Information we informed Inspector Dacillo that we will
operate this accused for possible apprehension.

Q: Before you conducted your buy-bust operation, what procedure did you take?
A: We prepared the operational plan for buy-bust against the suspect. We
prepared a request for powder dusting for our marked moneys to be used for the
operation.

Q: Did you use marked moneys in this case?

xxxx

Q: Then armed with these marked moneys, what steps did you take next?
A: After briefing of our team, we proceeded immediately to the area.

Q: You mentioned of poseur-buyer, what would the poseur-buyer do?

A: We made an arrangement with the poseur-buyer that during the buying of
shabu there should be a pre-arranged signal of the poseur-buyer to the police
officer.

Q: What happened when your poseur-buyer who, armed with this marked
moneys, approached the guy who was selling shabu at that time?
A: The poseur-buyer during that time gave the marked moneys to the
suspect.

Q: Where were you when this poseur-buyer gave the moneys to the suspect?
A: We positioned ourselves about 10 meters away from the area of the poseur-
buyer and the suspect.

Q: You mentioned of the pre-arranged signal, what would this be?

A: This is a case-to-case basis, your Honor, in the pre-arrangement signal
because in the pre-arranged signal we used a cap and a towel. (sic) In the
case, of this suspect, there was no towel there was no cap at the time of
giving the shabu and the marked moneys to the suspect and considering
also that that was about 7:00 o'clock in the evening. The poseur-buyer
immediately proceeded to us and informed us that the shabu was already
given by the suspect.

Q: What did you do next after that?

A: After examining the sachet of shabu that it was really the plastic containing
white [crystalline] substance, we immediately approached the suspect.

Q: Who was with a (sic) suspect when you conducted the buy-bust
operation[?] Was he alone or did he had (sic) any companion at that time?
A: He was alone.

Q: When you rushed up to the suspect what did you do?

A: We informed the suspect that we are the police officers and he has this
constitutional rights and we immediately handcuffed him.

Q: Where were the marked moneys?

A: The marked moneys were thrown on the ground. After we handcuffed the
suspect, we did not immediately searched in. We called the attention of
the barangay officials to witness the search of the suspect.

Q: How many sachets of shabu have you taken from the suspect during the buy-
bust operation?
A: We took from the possession of the suspect one big sachet of shabu.

xxxx

Q: What was the result of the searched (sic) for him?

A: We confiscated one big sachet of suspected shabu and the retrieval of 2 pieces
of 100 peso bills as marked moneys. [8]

What determines if there was, indeed, a sale of dangerous drugs in a buy-bust

operation is proof of the concurrence of all the elements of the offense, to wit: (1)
the identity of the buyer and the seller, the object, and the consideration; and (2)
the delivery of the thing sold and the payment therefor. [9] From the above
testimony of the prosecution witness, it was well established that the elements
have been satisfactorily met. The seller and the poseur-buyer were properly
identified. The subject dangerous drug, as well as the marked money used, were
also satisfactorily presented. The testimony was also clear as to the manner in
which the buy-bust operation was conducted.

To corroborate the testimony of PO2 Pajo, the prosecution presented the testimony
of Police Inspector Virginia Sison-Gucor, a forensic chemical officer, who confirmed
that the plastic containing white crystalline substance was positive for
methamphetamine hydrochloride and that the petitioner was in possession of the
marked money used in the buy-bust operation, thus:

PROS. RUIZ:

Q: What was the result of your examination or what were your findings on the
sachets of suspected shabu?
A: After the preliminary and confirmatory tests were conducted on the stated
specimen, the result was positive for methamphetamine hydrochloride, a dangerous
drug.

xxxx

Q: What were your findings when you examined the living person of the accused,
as well as the marked money mentioned in this report?
A: According to my report, the findings for the living person of Allen Udtojan
Mantalaba is positive to the test for the presence of bright orange ultra-violet
flourescent powder. x x x [10]

The above only confirms that the buy-bust operation really occurred. Once again,
this Court stresses that a buy-bust operation is a legally effective and proven
procedure, sanctioned by law, for apprehending drug peddlers and
distributors. [11] It is often utilized by law enforcers for the purpose of trapping and
capturing lawbreakers in the execution of their nefarious activities. [12] In People v.
Roa, [13] this Court had the opportunity to expound on the nature and importance of
a buy-bust operation, ruling that:

In the first place, coordination with the PDEA is not an indispensable requirement
before police authorities may carry out a buy-bust operation. While it is true that
Section 86 [14] of Republic Act No. 9165 requires the National Bureau of
Investigation, PNP and the Bureau of Customs to maintain "close coordination with
the PDEA on all drug-related matters," the provision does not, by so saying, make
PDEA's participation a condition sine qua non for every buy-bust operation. After
all, a buy-bust is just a form of an in flagrante arrest sanctioned by Section 5, Rule
113 [15] of the Rules of the Court, which police authorities may rightfully resort to in
apprehending violators of Republic Act No. 9165 in support of the PDEA. [16] A buy-
bust operation is not invalidated by mere non-coordination with the PDEA.

Neither is the lack of prior surveillance fatal. The case of People v. Lacbanes [17]
is
quite instructive:

In People v. Ganguso, [18] it has been held that prior surveillance is not a
prerequisite for the validity of an entrapment operation, especially when the buy-
bust team members were accompanied to the scene by their informant. In the
instant case, the arresting officers were led to the scene by the poseur-buyer.
Granting that there was no surveillance conducted before the buy-bust operation,
this Court held in People v. Tranca, [19] that there is no rigid or textbook method of
conducting buy-bust operations. Flexibility is a trait of good police work. The police
officers may decide that time is of the essence and dispense with the need for prior
surveillance. [20]

The rule is that the findings of the trial court on the credibility of witnesses are
entitled to great respect because trial courts have the advantage of observing the
demeanor of the witnesses as they testify. This is more true if such findings were
affirmed by the appellate court. When the trial court's findings have been affirmed
by the appellate court, said findings are generally binding upon this Court. [21]

In connection therewith, the RTC, as affirmed by the CA, was also correct in finding
that the appellant is equally guilty of violation of Section 11 of RA 9165, or the
illegal possession of dangerous drug. As an incident to the lawful arrest of the
appellant after the consummation of the buy-bust operation, the arresting officers
had the authority to search the person of the appellant. In the said search, the
appellant was caught in possession of 0.6131 grams of shabu. In illegal possession
of dangerous drugs, the elements are: (1) the accused is in possession of an item
or object which is identified to be a prohibited drug; (2) such possession is not
authorized by law; and (3) the accused freely and consciously possessed the said
drug. [22]

As a defense, appellant denied that he owns the shabu and the marked money
confiscated from him. However, based on his cross-examination, such denial was
not convincing enough to merit reasonable doubt, thus:

PROS. RUIZ:

Q: So it is true now that when these police officers passed you by they
recovered from your possession one sachet of shabu?
A: Yes, sir.
Q: And it is true that after you were arrested and when you were searched
they also found another sachet of shabu also in your pocket?
A: Yes, sir.

Q: And you mentioned in your counter-affidavit marked as Exhibit H for the

prosecution that no money was taken from you because you have none at that
time, is it not?
A: None sir, only the P250.00 which Jonald Ybanoso left to me.

Q: This P250.00 which Jonald left to you was also confiscated from your
possession?
A: Yes, sir.

Q: Were not P200 of the P250.00 was thrown to the ground during the time you
were arrested by the police?
A: No, sir.

Q: It was taken from your possession?

A: Yes, sir.

Q: And when the policemen brought you to the crime laboratory and had your
hands tested for ultra-violet fluorescent powder, your hands tested positively for
the presence of the said powder?
A: Yes, sir. [23]

Incidentally, the defenses of denial and frame-up have been invariably viewed by
this Court with disfavor for it can easily be concocted and is a common and
standard defense ploy in prosecutions for violation of the Dangerous Drugs Act. In
order to prosper, the defenses of denial and frame-up must be proved with strong
and convincing evidence. [24]

Another contention raised by the appellant is the failure of the prosecution to show
the chain of custody of the recovered dangerous drug. According to him, while it
was Inspector Ferdinand B. Dacillo who signed the request for laboratory
examination, only police officers Pajo and Simon were present in the buy-bust
operation.

Section 21 of RA 9165 reads:

SEC. 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered

Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and
Essential Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment. -
The PDEA shall take charge and have custody of all dangerous drugs, plant sources
of dangerous drugs, controlled precursors and essential chemicals, as well as
instruments/paraphernalia and/or laboratory equipment so confiscated, seized
and/or surrendered, for proper disposition in the following manner:

(1) The apprehending team having initial custody and control of the drugs shall,
immediately after seizure and confiscation, physically inventory and photograph the
same in the presence of the accused or the person/s from whom such items were
confiscated and/or seized, or his/her representative or counsel, a representative
from the media and the Department of Justice (DOJ), and any elected public official
who shall be required to sign the copies of the inventory and be given a copy
thereof.

Non-compliance by the apprehending/buy-bust team with Section 21 is not fatal as

long as there is justifiable ground therefor, and as long as the integrity and the
evidentiary value of the confiscated/seized items are properly preserved by the
apprehending officer/team. [25] Its non-compliance will not render an accused's
arrest illegal or the items seized/confiscated from him inadmissible. [26] What is of
utmost importance is the preservation of the integrity and the evidentiary value of
the seized items, as the same would be utilized in the determination of the guilt or
innocence of the accused. [27] In this particular case, it is undisputed that police
officers Pajo and Simon were members of the buy-bust operation team. The fact
that it was Inspector Ferdinand B. Dacillo who signed the letter-request for
laboratory examination does not in any way affect the integrity of the items
confiscated. All the requirements for the proper chain of custody had been
observed. As testified to by PO2 Pajo regarding the procedure undertaken after the
consummation of the buy-bust operation:

Prosecutor
Q: What did you do next after that?
A: After examining the sachet of shabu that it was really the plastic containing
white [crystalline] in substance, we immediately approached the suspect.

xxxx

Q: When you rushed up to the suspect, what did you do?

A: We informed the suspect that we are the police officers and he has this
[constitutional] rights and immediately handcuffed him.

Q: Where were the marked moneys?

A: The marked moneys were thrown on the ground. After we handcuffed the
suspect, we did not immediately searched in. We called the attention of
the barangay officials to witness the search of the suspect.

xxxx

Q: Now, before you searched the suspect you requested the presence of
the barangay officials. Now, when these barangay officials were present, what did
you do on the suspect?
A: We immediately searched the suspect.

Q: What was the result of the searched for him? (sic)

A: We confiscated one big sachet of suspected shabu and the retrieval of 2 pieces
of P100.00 peso bills as marked moneys.

Q: You said the suspect threw the marked moneys when you searched him, where
were the marked moneys?
A: On the ground.

Q: Who picked these marked moneys?

A: I was the one who picked the marked moneys.

Q: And then after you had picked the marked moneys and after you had the 2
pieces of sachets of shabu; one during the buy-bust and the other one during the
search, what did you do [with] these 2 pieces of sachets of shabu and the marked
moneys?
A: I recorded those items recovered, sir, during the search to the Certificate of
Inventory.[28]

As ruled by this Court, what is crucial in the chain of custody is the marking of the
confiscated item which, in the present case, was complied with, thus:

Crucial in proving chain of custody is the marking [29] of the seized drugs or other
related items immediately after they are seized from the accused. Marking after
seizure is the starting point in the custodial link, thus, it is vital that the seized
contraband are immediately marked because succeeding handlers of the specimens
will use the markings as reference. The marking of the evidence serves to separate
the marked evidence from the corpus of all other similar or related evidence from
the time they are seized from the accused until they are disposed of at the end of
criminal proceedings, obviating switching, "planting," or contamination of
evidence. [30]

Anent the age of the appellant when he was arrested, this Court finds it appropriate
to discuss the effect of his minority in his suspension of sentence. The appellant
was seventeen (17) years old when the buy-bust operation took place or when the
said offense was committed, but was no longer a minor at the time of the
promulgation of the RTC's Decision.

It must be noted that RA 9344 took effect on May 20, 2006, while the RTC
promulgated its decision on this case on September 14, 2005, when said appellant
was no longer a minor. The RTC did not suspend the sentence in accordance with
Article 192 of P.D. 603, The Child and Youth Welfare Code [31] and Section 32 of
A.M. No. 02-1-18-SC, the Rule on Juveniles in Conflict with the Law, [32] the laws
that were applicable at the time of the promulgation of judgment, because the
imposable penalty for violation of Section 5 of RA 9165 is life imprisonment to
death.

It may be argued that the appellant should have been entitled to a suspension of
his sentence under Sections 38 and 68 of RA 9344 which provide for its retroactive
application, thus:

SEC. 38. Automatic Suspension of Sentence. - Once the child who is under eighteen
(18) years of age at the time of the commission of the offense is found guilty of the
offense charged, the court shall determine and ascertain any civil liability which
may have resulted from the offense committed. However, instead of pronouncing
the judgment of conviction, the court shall place the child in conflict with the law
under suspended sentence, without need of application: Provided, however, That
suspension of sentence shall still be applied even if the juvenile is already eighteen
years (18) of age or more at the time of the pronouncement of his/her guilt.

Upon suspension of sentence and after considering the various circumstances of the
child, the court shall impose the appropriate disposition measures as provided in
the Supreme Court [Rule] on Juveniles in Conflict with the Law.

xxxx

Sec. 68. Children Who Have Been Convicted and are Serving Sentence. - Persons
who have been convicted and are serving sentence at the time of the effectivity of
this Act, and who were below the age of eighteen (18) years at the time of the
commission of the offense for which they were convicted and are serving sentence,
shall likewise benefit from the retroactive application of this Act. x x x

However, this Court has already ruled in People v. Sarcia [33] that while Section 38
of RA 9344 provides that suspension of sentence can still be applied even if the
child in conflict with the law is already eighteen (18) years of age or more at the
time of the pronouncement of his/her guilt, Section 40 of the same law limits the
said suspension of sentence until the child reaches the maximum age of 21. The
provision states:

SEC. 40. Return of the Child in Conflict with the Law to Court. - If the court finds
that the objective of the disposition measures imposed upon the child in conflict
with the law have not been fulfilled, or if the child in conflict with the law has
willfully failed to comply with the condition of his/her disposition or rehabilitation
program, the child in conflict with the law shall be brought before the court for
execution of judgment.

If said child in conflict with the law has reached eighteen (18) years of age while
under suspended sentence, the court shall determine whether to discharge the child
in accordance with this Act, to order execution of sentence, or to extend the
suspended sentence for a certain specified period or until the child reaches
the maximum age of twenty-one (21) years.

Hence, the appellant, who is now beyond the age of twenty-one (21) years can no
longer avail of the provisions of Sections 38 and 40 of RA 9344 as to his suspension
of sentence, because such is already moot and academic. It is highly noted that
this would not have happened if the CA, when this case was under its jurisdiction,
suspended the sentence of the appellant. The records show that the appellant filed
his notice of appeal at the age of 19 (2005), hence, when RA 9344 became
effective in 2006, appellant was 20 years old, and the case having been elevated to
the CA, the latter should have suspended the sentence of the appellant because he
was already entitled to the provisions of Section 38 of the same law, which now
allows the suspension of sentence of minors regardless of the penalty imposed as
opposed to the provisions of Article 192 of P.D. 603. [34]

Nevertheless, the appellant shall be entitled to appropriate disposition under

Section 51 of RA No. 9344, which provides for the confinement of convicted
children as follows: [35]

SEC. 51. Confinement of Convicted Children in Agricultural Camps and other

Training Facilities. - A child in conflict with the law may, after conviction and upon
order of the court, be made to serve his/her sentence, in lieu of confinement in a
regular penal institution, in an agricultural camp and other training facilities that
may be established, maintained, supervised and controlled by the BUCOR, in
coordination with the DSWD.

In finding the guilt beyond reasonable doubt of the appellant for violation of Section
5 of RA 9165, the RTC imposed the penalty of reclusion perpetua as mandated in
Section 98 [36] of the same law. A violation of Section 5 of RA 9165 merits the
penalty of life imprisonment to death; however, in Section 98, it is provided that,
where the offender is a minor, the penalty for acts punishable by life imprisonment
to death provided in the same law shall be reclusion perpetua to death. Basically,
this means that the penalty can now be graduated as it has adopted the technical
nomenclature of penalties provided for in the Revised Penal Code. The said principle
was enunciated by this Court in People v. Simon, [37] thus:

We are not unaware of cases in the past wherein it was held that, in imposing the
penalty for offenses under special laws, the rules on mitigating or aggravating
circumstances under the Revised Penal Code cannot and should not be applied. A
review of such doctrines as applied in said cases, however, reveals that the reason
therefor was because the special laws involved provided their own specific penalties
for the offenses punished thereunder, and which penalties were not taken from or
with reference to those in the Revised Penal Code. Since the penalties then
provided by the special laws concerned did not provide for the minimum, medium
or maximum periods, it would consequently be impossible to consider the
aforestated modifying circumstances whose main function is to determine the
period of the penalty in accordance with the rules in Article 64 of the Code.

This is also the rationale for the holding in previous cases that the provisions of the
Code on the graduation of penalties by degrees could not be given supplementary
application to special laws, since the penalties in the latter were not components of
or contemplated in the scale of penalties provided by Article 71 of the former. The
suppletory effect of the Revised Penal Code to special laws, as provided in Article
10 of the former, cannot be invoked where there is a legal or physical impossibility
of, or a prohibition in the special law against, such supplementary application.

The situation, however, is different where although the offense is defined in and
ostensibly punished under a special law, the penalty therefor is actually taken from
the Revised Penal Code in its technical nomenclature and, necessarily, with its
duration, correlation and legal effects under the system of penalties native to said
Code. When, as in this case, the law involved speaks of prision correccional, in its
technical sense under the Code, it would consequently be both illogical and absurd
to posit otherwise.

xxxx

Prefatorily, what ordinarily are involved in the graduation and consequently

determine the degree of the penalty, in accordance with the rules in Article 61 of
the Code as applied to the scale of penalties in Article 71, are the stage of
execution of the crime and the nature of the participation of the accused. However,
under paragraph 5 of Article 64, when there are two or more ordinary mitigating
circumstances and no aggravating circumstance, the penalty shall be reduced by
one degree. Also, the presence of privileged mitigating circumstances, as
provided in Articles 67 and 68, can reduce the penalty by one or two
degrees, or even more. These provisions of Articles 64(5), 67 and 68 should not
apply in toto in the determination of the proper penalty under the aforestated
second paragraph of section 20 of Republic Act No. 6425, to avoid anomalous
results which could not have been contemplated by the legislature.

Thus, paragraph 5 of Article 61 provides that when the law prescribes a penalty in
some manner not specially provided for in the four preceding paragraphs thereof,
the courts shall proceed by analogy therewith. Hence, when the penalty prescribed
for the crime consists of one or two penalties to be imposed in their full extent, the
penalty next lower in degree shall likewise consist of as many penalties which follow
the former in the scale in Article 71. If this rule were to be applied, and since the
complex penalty in this case consists of three discrete penalties in their full extent,
that is, prision correccional, prision mayor and reclusion temporal, then one degree
lower would be arresto menor, destierro and arresto mayor. There could, however,
be no further reduction by still one or two degrees, which must each likewise
consist of three penalties, since only the penalties of fine and public censure remain
in the scale.

The Court rules, therefore, that while modifying circumstances may be appreciated
to determine the periods of the corresponding penalties, or even reduce the penalty
by degrees, in no case should such graduation of penalties reduce the imposable
penalty beyond or lower than prision correccional. It is for this reason that the
three component penalties in the second paragraph of Section 20 shall each be
considered as an independent principal penalty, and that the lowest penalty should
in any event be prision correccional in order not to depreciate the seriousness of
drug offenses. Interpretatio fienda est ut res magis valeat quam pereat. Such
interpretation is to be adopted so that the law may continue to have efficacy rather
than fail. A perfect judicial solution cannot be forged from an imperfect law, which
impasse should now be the concern of and is accordingly addressed to
Congress. [38]

Consequently, the privileged mitigating circumstance of minority [39] can now be

appreciated in fixing the penalty that should be imposed. The RTC, as affirmed by
the CA, imposed the penalty of reclusion perpetua without considering the minority
of the appellant. Thus, applying the rules stated above, the proper penalty should
be one degree lower than reclusion perpetua, which is reclusion temporal, the
privileged mitigating circumstance of minority having been
appreciated. Necessarily, also applying the Indeterminate Sentence Law (ISLAW),
the minimum penalty should be taken from the penalty next lower in degree which
is prision mayor and the maximum penalty shall be taken from the medium period
of reclusion temporal, there being no other mitigating circumstance nor aggravating
circumstance. [40] The ISLAW is applicable in the present case because the penalty
which has been originally an indivisible penalty (reclusion perpetua to death),
where ISLAW is inapplicable, became a divisible penalty (reclusion temporal) by
virtue of the presence of the privileged mitigating circumstance of minority.
Therefore, a penalty of six (6) years and one (1) day of prision mayor, as
minimum, and fourteen (14) years, eight (8) months and one (1) day of reclusion
temporal, as maximum, would be the proper imposable penalty.

WHEREFORE, the Decision dated July 31, 2008 of the Court of Appeals (CA) in CA-
G.R. CR-H.C. No. 00240-MIN, affirming the Omnibus Judgment dated September
14, 2005 of the Regional Trial Court, Branch 1, Butuan City in Criminal Case No.
10250 and Criminal Case No. 10251, finding appellant Allen Udtojan Mantalaba,
guilty beyond reasonable doubt of violation of Sections 5 and 11, Article II of RA
9165 is hereby AFFIRMED with the MODIFICATION that the penalty that should
be imposed on appellant's conviction of violation of Section 5 of RA 9165, is six (6)
years and one (1) day of prision mayor, as minimum, and fourteen (14) years,
eight (8) months and one (1) day of reclusion temporal, as maximum.

SO ORDERED.

[ G.R. No. 140756, April 04, 2003 ]

PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS.
JUAN GONZALES ESCOTE, JR. @ JUN MANTIKA OF STA.
LUCIA, ANGAT, BULACAN AND VICTOR ACUYAN Y
OCHOVILLOS @ VIC ARROYO OF STO. NIÑO, POBLACION,
BUSTOS, BULACAN, ACCUSED-APPELLANTS.

DECISION

CALLEJO, SR., J.:

Robbery with homicide is classified as a crime against property. Nevertheless,

treachery is a generic aggravating circumstance in said crime if the victim of
homicide is killed treacherously. The Supreme Court of Spain so ruled. So does the
Court rule in this case, as it had done for decades.

Before the Court on automatic review is the Decision[1] of Branch 11 of the Regional
Trial Court of Bulacan in Criminal Case No. 443-M-97 convicting accused-appellants
Juan Gonzales Escote, Jr. and Victor Acuyan of the complex crime of robbery with
homicide, meting on each of them the supreme penalty of death, and ordering
them to pay the heirs of the victim, SPO1 Jose C. Manio, Jr., the total amount of
P300,000.00 by way of actual and moral damages and to pay to Five Star Bus, Inc.,
the amount of P6,000.00 by way of actual damages.

The Facts

The antecedent facts as established by the prosecution are as follows:

On September 28, 1996 at past midnight, Rodolfo Cacatian, the regular driver of
Five Star Passenger Bus bearing Plate No. ABS-793, drove the bus from its terminal
at Pasay City to its destination in Bolinao, Pangasinan. Also on board was Romulo
Digap, the regular conductor of the bus, as well as some passengers. At Camachile,
Balintawak, six passengers boarded the bus, including Victor Acuyan and Juan
Gonzales Escote, Jr. who were wearing maong pants, rubber shoes, hats and
jackets.[2] Juan seated himself on the third seat near the aisle, in the middle row of
the passengers’ seats, while Victor stood by the door in the mid-portion of the bus
beside Romulo. Another passenger, SPO1 Jose C. Manio, Jr., a resident of Angeles
City, was seated at the rear portion of the bus on his way home to Angeles City.
Tucked on his waist was his service gun bearing Serial Number 769806. Every now
and then, Rodolfo looked at the side view mirror as well as the rear view and center
mirrors installed atop the driver’s seat to monitor any incoming and overtaking
vehicles and to observe the passengers of the bus.

The lights of the bus were on even as some of the passengers slept. When the bus
was travelling along the highway in Plaridel, Bulacan, Juan and Victor suddenly
stood up, whipped out their handguns and announced a holdup. Petrified, Rodolfo
glanced at the center mirror towards the passengers’ seat and saw Juan and Victor
armed with handguns. Juan fired his gun upward to awaken and scare off the
passengers. Victor followed suit and fired his gun upward. Juan and Victor then
accosted the passengers and divested them of their money and valuables. Juan
divested Romulo of the fares he had collected from the passengers. The felons then
went to the place Manio, Jr. was seated and demanded that he show them his
identification card and wallet. Manio, Jr. brought out his identification card bearing
No. 00898.[3] Juan and Victor took the identification card of the police officer as well
as his service gun and told him: “Pasensya ka na Pare, papatayin ka namin, baril
mo rin and papatay sa iyo.” The police officer pleaded for mercy: “Pare maawa ka
sa akin. May pamilya ako.” However, Victor and Juan ignored the plea of the police
officer and shot him on the mouth, right ear, chest and right side of his body.
Manio, Jr. sustained six entrance wounds. He fell to the floor of the bus. Victor and
Juan then moved towards the driver Rodolfo, seated themselves beside him and
ordered the latter to maintain the speed of the bus. Rodolfo heard one of the felons
saying: “Ganyan lang ang pumatay ng tao. Parang pumapatay ng manok.” The
other said: “Ayos na naman tayo pare. Malaki-laki ito.” Victor and Juan further told
Rodolfo that after they (Victor and Juan) shall have alighted from the bus, he
(Rodolfo) should continue driving the bus and not report the incident along the way.
The robbers assured Rodolfo that if the latter will follow their instructions, he will
not be harmed. Victor and Juan ordered Rodolfo to stop the bus along the overpass
in Mexico, Pampanga where they alighted from the bus. The robbery was over in 25
minutes.

When the bus reached Dau, Mabalacat, Pampanga, Rodolfo and Romulo forthwith
reported the incident to the police authorities. The cadaver of SPO1 Manio, Jr. was
brought to the funeral parlor where Dr. Alejandro D. Tolentino, the Municipal Health
Officer of Mabalacat, Pampanga, performed an autopsy on the cadaver of the police
officer. The doctor prepared and signed an autopsy report detailing the wounds
sustained by the police officer and the cause of his death:

“Body still flaccid (not in rigor mortis) bathed with his own blood. There were 6
entrance wounds and 6 exit wounds. All the entrance were located on his right side.
An entrance (0.5 cm x 0.5 cm.) located infront of the right ear exited at the left
side just below the ear lobe. Another entrance through the mouth exited at the
back of the head fracturing the occiput with an opening of (1.5 cm x 2 cm). Blood
CSF and brain tissues came out. Another fatal bullet entered at the upper right
cornea of the sternum, entered the chest cavity pierced the heart and left lung and
exited at the left axillary line. Severe hemorrhage in the chest cavity came from the
heart and left lung. The other 3 bullets entered the right side and exited on the
same side. One entrance at the top of the right shoulder exited at the medial side
of the right arm. The other entered above the right breast and exited at the right
lateral abdominal wall travelling below muscles and subcutaneous tissues without
entering the cavities. Lastly another bullet entered above the right iliac crest
travelled superficially and exited above the right inguinal line.

Cause of Death:

Shock, massive internal and external hemorrhage, complete brain destruction and
injury to the heart and left lung caused by multiple gunshot wounds.”[4]

Rodolfo and Romulo proceeded to the police station of Plaridel, Bulacan where they
reported the robbery and gave their respective sworn statements.[5] SPO1 Manio,
Jr. was survived by his wife Rosario Manio and their four young children. Rosario
spent P20,000.00 for the coffin and P10,000.00 for the burial lot of the slain police
officer.[6] Manio, Jr. was 38 years old when he died and had a gross salary of
P8,085.00 a month.[7]

Barely a month thereafter, or on October 25, 1996, at about midnight, SPO3

Romeo Meneses, the team leader of Alert Team No. 1 of Tarlac Police Station, and
PO3 Florante S. Ferrer were at the police checkpoint along the national highway in
Tarlac, Tarlac. At the time, the Bambang-Concepcion bridge was closed to traffic
and the police officers were tasked to divert traffic to the Sta. Rosa road.
Momentarily, a white colored taxi cab without any plate number on its front fender
came to view. Meneses stopped the cab and asked the driver, who turned out to be
the accused Juan Gonzales Escote, Jr., for his identification card. Juan told Meneses
that he was a policeman and handed over to Meneses the identification card of
SPO1 Manio, Jr. and the money which Juan and Victor took from Manio, Jr. during
the heist on September 28, 1996.[8] Meneses became suspicious when he noted
that the identification card had already expired on March 16, 1995. He asked Juan if
the latter had a new pay slip. Juan could not produce any. He finally confessed to
Meneses that he was not a policeman. Meneses brought Juan to the police station.
When police officers frisked Juan for any deadly weapon, they found five live bullets
of a 9 millimeter firearm in his pocket. The police officers confiscated the
ammunition. In the course of the investigation, Juan admitted to the police
investigators that he and Victor, alias Victor Arroyo, staged the robbery on board
Five Star Bus and are responsible for the death of SPO1 Manio, Jr. in Plaridel,
Bulacan. Meneses and Ferrer executed their joint affiavit of arrest of Juan.[9] Juan
was subsequently turned over to the Plaridel Police Station where Romulo identified
him through the latter’s picture as one of those who robbed the passengers of the
Five Star Bus with Plate No. ABS-793 and killed SPO1 Manio, Jr. on September 28,
1996. In the course of their investigation, the Plaridel Police Station Investigators
learned that Victor was a native of Laoang, Northern Samar.[10] On April 4, 1997, an
Information charging Juan Gonzales Escote, Jr. and Victor Acuyan with robbery with
homicide was filed with the Regional Trial Court of Bulacan. The Information reads:

That on or about the 28th day of September 1996, in the municipality of Plaridel,
province of Bulacan, Philippines, and within the jurisdiction of this Honorable Court,
the above-named accused, conspiring, confederating together and mutually helping
each other, armed with firearms, did then and there wilfully, unlawfully and
feloniously, with intent of (sic) gain and by means of force, violence and
intimidation, take, rob and carry away with one (1) necklace and cash in [the]
undetermine[d] amount of one SPO1 Jose C. Manio, Jr., to the damage and
prejudice of the said owner in the said undetermine[d] amount; that simultaneously
or on the occassion (sic) of said robbery, said accused by means of violence and
intimidation and in furtherance of their conspiracy attack, assault and shoot with
the service firearm of the said SPO1 Jose C. Manio, Jr., thereby inflicting serious
physical injuries which resulted (sic) the death of the said SPO1 Jose C. Manio, Jr.

Contrary to law.[11]

On the strength of a warrant of arrest, the police officers arrested Victor in Laoang,
Northern Samar and had him incarcerated in the Bulacan Provincial Jail. Assisted by
Atty. Ramiro Osorio, their counsel de parte, Juan and Victor were duly arraigned
and entered their plea of not guilty to the charge. Trial thereafter ensued. After the
prosecution had rested its case on August 26, 1998, Juan escaped from the
provincial jail.[12] The trial court issued a bench warrant on September 22, 1998 for
the arrest of said accused-appellant.[13] In the meantime, Victor adduced his
evidence.

Victor denied the charge and interposed the defense of alibi. He testified that in
1996, he worked as a tire man in the vulcanizing shop located in Banga I, Plaridel,
Bulacan owned by Tony Boy Negro. On one occasion, Ilarde Victorino, a customer
of Tony Boy Negro, ordered Victor to sell a tire. Victor sold the tire but did not turn
over the proceeds of the sale to Ilarde. The latter hated Victor for his misdeed. The
shop was later demolished and after two months of employment, Victor returned to
Barangay Muwal-Buwal, Laoang, Northern Samar. On September 26, 1996, at 9:30
p.m., Victor was at the town fiesta in Laoang. Victor and his friends, Joseph Iringco
and Rickey Lorcio were having a drinking spree in the house of Barangay Captain
Ike Baluya. At 11:30 p.m., the three left the house of the barangay captain and
attended the public dance at the town auditorium. Victor and his friends left the
auditorium at 5:30 a.m. of September 27, 1996. Victor likewise testified that he
never met Juan until his arrest and detention at the Bulacan Provincial Jail. One of
the inmates in said provincial jail was Ilarde Victorino. Victor learned that Ilarde
implicated him for the robbery of the Five Star Bus and the killing of SPO1 Manio,
Jr. to hit back at him for his failure to turn over to Ilarde the proceeds of the sale of
the latter’s tire.

On January 14, 1999, Juan was rearrested in Daet, Camarines Norte.[14] However,
he no longer adduced any evidence in his behalf.

The Verdict of the Trial Court

On March 11, 1999, the trial court rendered its Decision judgment finding Juan and
Victor guilty beyond reasonable doubt of the crime charged, meted on each of them
the penalty of death and ordered them to pay P300,000.00 as actual and moral
damages to the heirs of the victim and to pay the Five Star Bus Company the
amount of P6,000.00 as actual damages. The decretal portion of the decision reads:

WHEREFORE, this Court finds both accused, Juan Gonzales Escote, Jr. and Victor
Acuyan GUILTY beyond reasonable doubt of Robbery with Homicide as penalized
under Art. 294 of the Revised Penal Code as amended and hereby sentences both
to suffer the supreme penalty of Death and to indemnify the heirs of the late SPO1
Jose C. Manio, Jr., the amount of P300,000.00 as actual and moral damages and to
pay the Five Star Bus P6,000.00 as actual damage.

SO ORDERED.[15]

Assignment of Errors

Juan and Victor assail the Decision of the trial court and contend that:

THE TRIAL COURT ERRED IN HOLDING THAT RODOLFO CACATIAN AND ROMULO
DIGAP, DRIVER AND CONDUCTOR OF THE FIVE STAR BUS, RESPECTIVELY, WERE
ABLE TO POSITIVELY IDENTIFY THE TWO (2) MEN WHO HELD-UP THEIR BUS AND
KILLED ONE PASSENGER THEREOF AT AROUND 3:00 O’CLOCK IN THE EARLY
MORNING OF SEPTEMBER 28, 1996.

II

THE TRIAL COURT ERRED IN FINDING THE TWO (2) ACCUSED GUILTY BEYOND
REASONABLE DOUBT OF THE CRIME OF ROBBERY WITH HOMICIDE.[16]

The Court’s Verdict

Anent the first assignment of error, Juan and Victor contend that the trial court
committed a reversible error in relying on the testimony of Rodolfo, the bus
conductor, for convicting them of the crime charged. They aver that although their
counsel was able to initially cross-examine Rodolfo, the former failed to continue
with and terminate his cross-examination of the said witness through no fault of his
as the witness failed to appear in subsequent proceedings. They assert that even if
the testimonies of Rodolfo and Romulo were to be considered, the two witnesses
were so petrified during the robbery that they were not able to look at the felons
and hence could not positively identify accused-appellants as the perpetrators of
the crime. They argue that the police investigators never conducted a police line-up
for the identification of the authors of the crime.

The contentions of Juan and Victor are not meritorious. There is no factual and legal
basis for their claim that they were illegally deprived of their constitutional and
statutory right to fully cross-examine Rodolfo. The Court agrees that the right to
cross-examine is a constitutional right anchored on due process.[17] It is a statutory
right found in Section 1(f), Rule 115 of the Revised Rules of Criminal Procedure
which provides that the accused has the right to confront and cross-examine the
witnesses against him at the trial. However, the right has always been understood
as requiring not necessarily an actual cross-examination but merely an opportunity
to exercise the right to cross-examine if desired.[18] What is proscribed by statutory
norm and jurisprudential precept is the absence of the opportunity to cross-
examine.[19] The right is a personal one and may be waived expressly or impliedly.
There is an implied waiver when the party was given the opportunity to confront
and cross-examine an opposing witness but failed to take advantage of it for
reasons attributable to himself alone.[20] If by his actuations, the accused lost his
opportunity to cross-examine wholly or in part the witnesses against him, his right
to cross-examine is impliedly waived.[21] The testimony given on direct examination
of the witness will be received or allowed to remain in the record.[22]

In this case, the original records show that after several resettings, the initial trial
for the presentation by the prosecution of its evidence-in-chief was set on
November 18, 1997 and December 5, 1997, both at 9:00 a.m.[23] Rodolfo testified
on direct examination on November 18, 1997. The counsel of Juan and Victor
forthwith commenced his cross-examination of the witness but because of the
manifestation of said counsel that he cannot finish his cross-examination, the court
ordered the continuation thereof to December 5, 1997.[24] On December 5, 1997,
Rodolfo did not appear before the court for the continuation of his cross-
examination but Rosemarie Manio, the widow of the victim did. The prosecution
presented her as witness. Her testimony was terminated. The court ordered the
continuation of the trial for the cross-examination of Rodolfo on January 20, 1998
at 8:30 a.m.[25] During the trial on January 20, 1998, Rodolfo was present but
accused-appellants’ counsel was absent. The court issued an order declaring that
for failure of said counsel to appear before the court for his cross-examination of
Rodolfo, Victor and Juan waived their right to continue with the cross-examination
of said witness.[26] During the trial set for February 3, 1998, the counsel of Juan and
Victor appeared but did not move for a reconsideration of the court’s order dated
January 20, 1998 and for the recall of Rodolfo Cacatian for further cross-
examination. It behooved counsel for Juan and Victor to file said motion and pray
that the trial court order the recall of Rodolfo on the witness stand. Juan and Victor
cannot just fold their arms and supinely wait for the prosecution or for the trial
court to initiate the recall of said witness. Indeed, the Court held in Fulgado vs.
Court of Appeals, et al:

xxx

The task of recalling a witness for cross examination is, in law, imposed on the
party who wishes to exercise said right. This is so because the right, being personal
and waivable, the intention to utilize it must be expressed. Silence or failure to
assert it on time amounts to a renunciation thereof. Thus, it should be the counsel
for the opposing party who should move to cross-examine plaintiff’s witnesses. It is
absurd for the plaintiff himself to ask the court to schedule the cross-examination of
his own witnesses because it is not his obligation to ensure that his deponents are
cross-examined. Having presented his witnesses, the burden shifts to his opponent
who must now make the appropriate move. Indeed, the rule of placing the burden
of the case on plaintiff’s shoulders can be construed to extremes as what happened
in the instant proceedings. [27]

The trial was reset to March 31, April 17 and 24, 1998, all at 8:30 a.m. because of
the non-availability of the other witnesses of the prosecution.[28] On March 31,
1998, the prosecution presented Dr. Alejandro Tolentino, PO2 Rene de la Cruz and
Romulo Digap. During the trial on April 17, 1998, the counsel of Juan and Victor
failed to appear. The trial was reset to June 3, 19 and 26, 1998.[29] The trial
scheduled on June 3, 1998 was cancelled due to the absence of the counsel of Juan
and Victor. The court issued an order appointing Atty. Roberto Ramirez as counsel
for accused-appellants.[30]

During the trial on August 26, 1998, Atty. Ramirez appeared in behalf of Juan and
Victor. The prosecution rested its case after the presentation of SPO2 Romeo
Meneses and formally offered its documentary evidence. The next trial was set on
September 23, 1998 at 8:30 a.m.[31] On November 11, 1998, Juan and Victor
commenced the presentation of their evidence with the testimony of Victor.[32] They
rested their case on January 27, 1999 without any evidence adduced by Juan.

Juan and Victor did not even file any motion to reopen the case before the trial
court rendered its decision to allow them to cross-examine Rodolfo. They remained
mute after judgment was rendered against them by the trial court. Neither did they
file any petition for certiorari with the Court of Appeals for the nullification of the
Order of the trial court dated January 20, 1998 declaring that they had waived their
right to cross-examine Rodolfo. It was only on appeal to this Court that Juan and
Victor averred for the first time that they were deprived of their right to cross-
examine Rodolfo. It is now too late in the day for Juan and Victor to do so. The
doctrine of estoppel states that if one maintains silence when in conscience he
ought to speak, equity will debar him from speaking when in conscience he ought
to remain silent. He who remains silent when he ought to speak cannot be heard to
speak when he should be silent.[33]

The contention of accused-appellants Juan and Victor that Rodolfo and Romulo
failed to identify them as the perpetrators of the crime charged is disbelieved by
the trial court, thus:

As can be gathered from the testimonies of the witnesses for the prosecution, on
September 28, 1996, the accused boarded at around 3:00 a.m. a Five Star Bus
driven by Rodolfo Cacatian, bound to Pangasinan, in Camachile, Balintawak,
Quezon City. Twenty (20) minutes or so later, when the bus reached the vicinity of
Nabuag, Plaridel, Bulacan, along the North Espressway, the accused with guns in
hand suddenly stood up and announced a hold-up. Simultaneously with the
announcement of a hold-up, Escote fired his gun upwards. Acuyan, meanwhile, took
the gun of a man seated at the back. Both then went on to take the money and
valuables of the passengers, including the bus conductor’s collections in the amount
of P6,000.00. Thereafter, the duo approached the man at the back telling him in
the vernacular “Pasensiya ka na pare, papatayin ka namin. Baril mo rin ang
papatay sa iyo.” They pointed their guns at him and fired several shots oblivious of
the plea for mercy of their victim. After the shooting, the latter collapsed on the
floor. The two (2) then went back at the front portion of the bus behind the driver’s
seat and were overheard by the bus driver, Cacatian, talking how easy it was to kill
a man. The robbery and the killing were over in 25 minutes. Upon reaching the
Mexico overpass of the Expressway in Pampanga, the two (2) got off the bus. The
driver drove the bus to the Mabalacat Police Station and reported the incident.
During the investigation conducted by the police, it was found out that the slain
passenger was a policeman, SPO1 Jose C. Manio, Jr. of the Caloocan City Police
Department.

The above version came from Rodolfo Cacatian and Romulo Digap, bus driver and
conductor, respectively, of the ill-fated Five Star Bus.[34]

The Court agrees with the trial court. It may be true that Romulo was frightened
when Juan and Victor suddenly announced a holdup and fired their guns upward,
but it does not follow that he and Rodolfo failed to have a good look at Juan and
Victor during the entire time the robbery was taking place. The Court has held in a
catena of cases that it is the most natural reaction of victims of violence to strive to
see the appearance of the perpetrators of the crime and to observe the manner in
which the crime was committed.[35] Rodolfo and Romulo had a good look at both
Juan and Victor before, during and after they staged the robbery and before they
alighted from the bus. The evidence on record shows that when Juan and Victor
boarded the bus and while the said vehicle was on its way to its destination,
Romulo stationed himself by the door of the bus located in the mid-section of the
vehicle. The lights inside the bus were on. Juan seated himself in the middle row of
the passengers’ seat near the center aisle while Victor stood near the door of the
bus about a meter or so from Romulo.[36] Romulo, Juan and Victor were near each
other. Moreover, Juan divested Romulo of his collection of the fares from the
passengers.[37] Romulo thus had a face-to-face encounter with Juan. After shooting
SPO1 Manio, Jr. at the rear portion of the bus, Juan and Victor passed by where
Romulo was standing and gave their instructions to him. Considering all the facts
and circumstances, there is no iota of doubt that Romulo saw and recognized Juan
and Victor before, during and after the heist.[38] Rodolfo looked many times on the
rear, side and center view mirrors to observe the center and rear portions of the
bus before and during the robbery. Rodolfo thus saw Juan and Victor stage the
robbery and kill SPO1 Manio, Jr. with impunity:

xxx

Q So, the announcement of hold-up was ahead of the firing of the gun?

A Yes, sir.

Q And before the actual firing of the gun it was even still said bad words
before saying the hold-up?

A After they fired the gun they uttered bad words, sir.

Q Mr. Witness before the announcement of the hold-up you do not have
any idea that you will encounter that nature which took place, is that
correct?

A None, sir.

Q Within the two (2) year[s] period that you are plying the route of Manila
to Bolinao that was your first experience of hold-up?

A Yes, sir.

Q And the speed of above 70 kilometers per hour your total attention is
focus in front of the road, correct, Mr. witness?
A Once in a while the driver look at the side mirror and the rear view
mirror, sir.

Q Before the announcement there was no reason for you to look at any at
the rear mirror, correct, Mr. witness?

Court:

Every now and then they usually look at the side mirror and on the rear,
that was his statement.

Atty. Osorio:
(to the witness)

Q I am asking him if there was no reason for him....

Fiscal:

Before the announcement of hold-up, there was no mention.

Court:

Every now and then.

Atty. Osorio:
(to the witness)

Q When you said every now and then, how often is it, Mr. witness?

A I cannot tell how often but I used to look at the mirror once in a while, sir.
Q How many mirror do you have, Mr. witness?

A Four (4), sir.

Q Where are these located?

A Two (2) on the side mirror, center mirror and rear view mirror, sir.

Q The two side mirror protruding outside the bus?

A Yes, sir, they are in the side of the bus, sir.

Q One of them is located on the left and the other on the right, correct?

A Yes, sir.

Q You only look at the side mirror when you are going to over take, Mr.
witness?

A No, sir.

Q Where is this center mirror located, Mr. witness?

A In the center, sir.

Q What is the purpose of that?

A So that I can see the passengers if they are already settled so that I can
start the engine, sir.

Q What about the remaining mirror?

A Rear view mirror, sir.

Q What is the purpose and where is it located?

A The rear view is located just above my head just to check the passengers,
sir.
Q So that the center mirror and the rear view mirror has the same purpose?

A They are different, sir.

Q How do you differentiate of (sic) one from the other?

A The center mirror is used to check the center aisle while the rear mirror is
for the whole view of the passengers, sir.

Q If you are going to look at any of your side mirrors, you will never see any
passengers, correct, Mr. witness?

A None, sir.

Q If you will look at your center mirror you will only see the aisle and you
will never see any portion of the body of your passengers?

A Yes, sir.

Q Seated passengers?

A It is only focus (sic) on the middle aisle sir.

Q If you look at your rear mirror, you will only see the top portion of the
head of your passengers, correct?

A Only the portion of their head because they have different hight (sic), sir.

Q You will never see any head of your passengers if they were seated from
the rear mirror portion, correct, Mr. witness?

A Yes, sir.

Q Before the announcement of hold-up, all of your passengers were

actually sleeping?

A Some of my passengers were sleeping, some were not, sir.

Q But you will agree Mr. witness that when you said every now and then
you are using your mirror? It is only a glance, correct?
A Yes, sir.

Q And by mere glancing, Mr. witness you were not able to identify any
person on the basis of any of your mirror, correct?

A If only a glance but when I look at him I can recognize him, sir.

Q You agree a while ago by every now and then it is by glancing, as a driver,
Mr. witness by your side mirror?

A Not all glancing, there are times when you want to recognize a person
you look at him intently, sir.

Q The purposes of your mirror inside your Bus is mainly of the safety of
your passengers on board, Mr. witness?

A Yes, sir.

Q And as a driver, Mr. witness, you do not used (sic) your mirror to identify
the person particularly when you are crossing (sic) at a speed of 70
kilometers per hour?

A I do that, sir.

Q How long Mr. witness can you focus your eyes on any of these mirror
before getting back your eyes into the main road?

A Seconds only, sir.

Q When you said seconds, for how long the most Mr. witness that you can
do to fix your eyes on any of your mirrors and the return back of (sic)
your eyes into the main road?

A Two seconds, sir.

Q At that time Mr. witness, that you were travelling at about 70 kilometers
you were glancing every now and then on any of your mirrors at about
two seconds, correct?
A Yes, sir.

Q And when you heard the announcement of hold-up your natural reaction
is to look either at the center mirror or rear mirror for two seconds,
correct?

A Yes, sir.

Q And you were instructed Mr. witness to even accelerate your speed upon
the announcement of hold-up?

A No sir, they just told me to continue my driving, sir.

Fiscal:

May I request the vernacular “alalay ka lang, steady ka lang.

Atty. Osorio:
(to the witness)

Q Steady at what speed?

A 70 to 80, sir.

Q What is the minimum speed, Mr. witness for Buses along North
Expressway?

A 60 kilometers, sir.

Q Are you sure of that 60 kilometers, minimum? Are you sure of that?

A Yes, sir.

Q That is what you know within the two (2) years that you are driving?
Along the North Expressway?
A Yes, sir.

Q And while you were at the precise moment, Mr. witness, you were being
instructed to continue driving, you were not looking to anybody except
focus yours eyes in front of the road?

Fiscal:

May I request the vernacular. Nakikiramdam ako.

Atty. Osorio:
(to the witness)

Q That’s what you are doing?

A During the time they were gathering the money from my passengers,
that is the time when I look at them, sir.

Q For two seconds, correct?

A Yes, sir.

Q Which of the four (4) mirrors that you are looking at within two seconds,
Mr. witness you said you are nakikiramdam?

A The rear view mirror, sir.

Q The Bus that you were driving is not an air con bus?

A Ordinary bus, sir.

Q And at what time your passengers, most of your passengers were already
sleep (sic), Mr. witness?

A Most of my passengers, sir. Some of my passengers were still sleep (sic),

sir.
 Q And the lights inside the Bus are off, correct Mr. witness?

A The lights were on, sir.

Q While the passengers were sleep (sic) the light was still on, Mr. witness,
at the time of the trip.?

A Yes, sir.

Q Now, Mr. witness when the hold-up was announced and then when you
look for two seconds in the rear mirror you were not able to see any one,
you were only sensing what is happening inside your bus?

A I saw something, sir.

Q You saw something in front of your Bus? You can only see inside when
you are going to look at the mirror?

A Yes, sir.

Q That is the only thing that you see every now and then, you said you were
looking at the mirror?

A Yes, sir.

Q How many times, Mr. witness did you look Mr. witness at the rear mirror
during the entire occurance (sic) of the alleged hold-up?

A There were many times, sir.

Q The most that you can remember, please inform the Honorable Court?
During the occurance (sic) of the alleged hold-up, Mr. witness?

A I cannot estimate, sir.

Q How long did the alleged hold-up took place?

A More or less 25 minutes, sir.[39]

When Rodolfo gave his sworn statement to the police investigators in Plaridel,
Bulacan after the robbery, he described the felons. When asked by the police
investigators if he could identify the robbers if he see them again, Rodolfo declared
that he would be able to identify them:

8. T: Natatandaan mo ba kung ano ang itsura ng dalawang lalaki na nanghold-up sa

minamaneho mong bus?

S: Halos magkasing taas, 5’4” o 5’5” katam-taman ang pangangatawan, parehong

nakapantalon ng maong naka-suot ng jacket na maong, parehong naka rubber
shoes at pareho ring naka sumbrero.

9. T: Kung sakali bang makikita mo pa ang mga ito ay makikilala mo pa sila?

S: Makikilala ko po sila.[40]

When asked to identify the robbers during the trial, Rodolfo spontaneously pointed
to and identified Juan and Victor:

QFiscal:
(to the witness)

xxx

Q Those two man (sic) who stated that it was a hold-up inside the bus and
who fired the gun are they inside the Court room (sic) today?

A Yes, ma’am.

Q Point to us?

Interpreter:

Witness pointing to a man wearing red T-shirt and when asked his name
answered Victor Acuyan and the man wearing green T-shirt and when
asked his name answered Juan Gonzales.[41]

For his part, Romulo likewise spontaneously pointed to and identified Juan and
Victor as the culprits when asked by the prosecutor to identify the robbers from
among those in the courtroom:
 xxx

Q You said that you were robbed inside the bus, how does (sic) the robbing
took place?

A They announced a hold up ma’am, afterwards, they confiscated the

money of the passengers including my collections.

Q You said “they” who announced the hold up, whose (sic) these “they”
you are referring to?

A Those two (2), ma’am.

Interpreter:

Witness pointing to the two accused.

Public Pros.:

May we request that the accused be identified, Your Honor.

Court:
(to both accused)

What are your names?

A Juan Escote, Your Honor. Victor Acuyan, Your Honor.

Public Pros.:

May we know from the accused if his name is Juan Escote Gonzales
because he just said Juan Escote. In the Information, it is one Juan
Gonzales, Jr., so, we can change, Your Honor.[42]

Moreover, when he was accosted by SPO3 Romeo Meneses on October 25, 1997 in
Tarlac, Tarlac, Juan was in possession of the identification card[43] of the slain police
officer. Juan failed to explain to the trial court how and under what circumstances
he came into possession of said identification card. Juan must necessarily be
considered the author of the robbery and the killing of SPO1 Manio, Jr. In People v.
Mantung,[44] we held:

xxx [T]he recovery of part of the loot from Mantung or the time of his arrest gave
rise to a legal presumption of his guilt. As this Court has held, ‘[I]n the absence of
an explanation of how one has come into possession of stolen effects belonging to a
person wounded and treacherously killed, he must necessarily be considered the
author of the aggression and death of the said person and of the robbery
committed on him.’

While police investigators did not place Juan and Victor in a police line-up for proper
identification by Rodolfo and Romulo, it cannot thereby be concluded that absent
such line-up, their identification by Romulo and Rodolfo as the authors of the
robbery with homicide was unreliable. There is no law or police regulation requiring
a police line-up for proper identification in every case. Even if there was no police
line-up, there could still be proper and reliable identification as long as such
identification was not suggested or instigated to the witness by the police.[45] In this
case, there is no evidence that the police officers had supplied or even suggested to
Rodolfo and Romulo the identities of Juan and Victor as the perpetrators of the
robbery and the killing of SPO1 Manio, Jr.

The Felony Committed by Juan and Victor

The Court finds that the trial court committed no error in convicting Juan and Victor
of robbery with homicide. Article 294, paragraph 1 of the Revised Penal Code, as
amended by Republic Act 7659, reads:

Art. 294. - Robbery with violence against or intimidation of persons. - Penalties. -

Any person guilty of robbery with the use of violence against or intimidation of any
person shall suffer:

1. The penalty of reclusion perpetua to death, when by reason or on occasion of the

robbery, the crime of homicide shall have been committed, or when the robbery
shall have been accompanied by rape or intentional mutilation or arson.

To warrant the conviction of Juan and Victor for the said charge, the prosecution
was burdened to prove the confluence of the following essential elements:

xxx (a) the taking of personal property with the use of violence or intimidation
against a person; (b) the property thus taken belongs to another; (c) the taking is
characterized by intent to gain or animus lucrandi and (d) on the occasion of the
robbery or by reason thereof, the crime of homicide, which is therein used in a
generic sense, was committed. xxx[46]
The intent to rob must precede the taking of human life.[47] In robbery with
homicide, so long as the intention of the felons was to rob, the killing may occur
before, during or after the robbery. In People v. Barut,[48] the Court held that:

In the controlling Spanish version of article 294, it is provided that there is robbery
with homicide “cuando con motivo o con ocasión del robo resultare homicidio”.
“Basta que entre aquel este exista una relación meramente ocasional. No se
requiere que el homicidio se cometa como medio de ejecución del robo, ni que el
culpable tenga intención de matar, el delito existe según constanta jurisprudencia,
aun cuando no concurra animo homicida. Incluso si la muerte sobreviniere por
mero accidente, siempre que el homicidio se produzca con motivo con ocasión del
robo, siendo indiferente que la muerte sea anterior, coetánea o posterior a éste” (2
Cuello Calon, Derecho Penal, 1975 14th Ed. P. 872).

Even if the victim of robbery is other than the victim of the homicide committed on
the occasion of or by reason of the robbery, nevertheless, there is only one single
and indivisible felony of robbery with homicide. All the crimes committed on the
occasion or by reason of the robbery are merged and integrated into a single and
indivisible felony of robbery with homicide. This was the ruling of the Supreme
Court of Spain on September 9, 1886, et sequitur cited by this Court in People v.
Mangulabnan, et al.[49]

We see, therefore, that in order to determine the existence of the crime of robbery
with homicide it is enough that a homicide would result by reason or on the
occasion of the robbery (Decision of the Supreme Court of Spain of November 26,
1892, and January 7, 1878, quoted in 2 Hidalgo’s Penal Code, p. 267 and 259-260,
respectively). This High Tribunal speaking of the accessory character of the
circumstances leading to the homicide, has also held that it is immaterial that the
death would supervene by mere accident (Decision of September 9, 1886; October
22, 1907; April 30, 1910 and July 14, 1917), provided that the homicide be
produced by reason or on occasion of the robbery, inasmuch as it is only
the result obtained, without reference or distinction as to the circumstances,
causes, modes or persons intervening in the commission of the crime, that has to
be taken into consideration (Decision of January 12, 1889 – see Cuello Calon’s
Codigo Penal, p. 501-502).

Case law has it that whenever homicide has been committed by reason of or on the
occasion of the robbery, all those who took part as principals in the robbery will
also be held guilty as principals of robbery with homicide although they did not take
part in the homicide, unless it appears that they endeavored to prevent the
homicide.[50]

In this case, the prosecution proved beyond reasonable doubt that Juan and Victor
conspired and confabulated together in robbing the passengers of the Five Star Bus
of their money and valuables and Romulo of his collections of the fares of the
passengers and in killing SPO1 Manio, Jr. with impunity on the occasion of the
robbery. Hence, both Juan and Victor are guilty as principals by direct participation
of the felony of robbery with homicide under paragraph 1, Article 294 of the
Revised Penal Code, as amended by R.A. 7659, punishable by reclusion perpetua to
death.

The Proper Penalty

The trial court imposed the supreme penalty of death on Juan and Victor for
robbery with homicide, defined in Article 294, paragraph 1 of the Revised Penal
Code, punishable with reclusion perpetua. Under Article 63, paragraph 1 of the
Revised Penal Code, the felons should be meted the supreme penalty of death when
the crime is committed with an aggravating circumstance attendant in the
commission of the crime absent any mitigating circumstance. The trial court did not
specify in the decretal portion of its decision the aggravating circumstances
attendant in the commission of the crime mandating the imposition of the death
penalty. However, it is evident from the findings of facts contained in the body of
the decision of the trial court that it imposed the death penalty on Juan and Victor
on its finding that they shot SPO1 Manio, Jr. treacherously on the occasion of or by
reason of the robbery:

xxx

The two (2) accused are incomparable in their ruthlessness and base regard for
human life. After stripping the passengers of their money and valuables, including
the firearm of the victim, they came to decide to execute the latter seemingly
because he was a police officer. They lost no time pouncing him at the rear section
of the bus, aimed their firearms at him and, in a derisive and humiliating tone, told
him, before pulling the trigger, that they were rather sorry but they are going to kill
him with his own gun; and thereafter, they simultaneously fired point blank at the
hapless policeman who was practically on his knees begging for his life. Afterwhich,
they calmly positioned themselves at the front boasting for all to hear, that killing a
man is like killing a chicken (“Parang pumapatay ng manok”). Escote, in particular,
is a class by himself in callousness. xxx.[51]

The Court agrees with the trial court that treachery was attendant in the
commission of the crime. There is treachery when the following essential elements
are present, viz: (a) at the time of the attack, the victim was not in a position to
defend himself; and (b) the accused consciously and deliberately adopted the
particular means, methods or forms of attack employed by him.[52] The essence of
treachery is the sudden and unexpected attack by an aggressor on the
unsuspecting victim, depriving the latter of any chance to defend himself and
thereby ensuring its commission without risk of himself. Treachery may also be
appreciated even if the victim was warned of the danger to his life where he was
defenseless and unable to flee at the time of the infliction of the coup de
grace.[53] In the case at bar, the victim suffered six wounds, one on the mouth,
another on the right ear, one on the shoulder, another on the right breast, one on
the upper right cornea of the sternum and one above the right iliac crest. Juan and
Victor were armed with handguns. They first disarmed SPO1 Manio, Jr. and then
shot him even as he pleaded for dear life. When the victim was shot, he was
defenseless. He was shot at close range, thus insuring his death. The victim was on
his way to rejoin his family after a hard day’s work. Instead, he was mercilessly
shot to death, leaving his family in grief for his untimely demise. The killing is a
grim example of the utter inhumanity of man to his fellowmen.

The issues that now come to fore are (1) whether or not treachery is a generic
aggravating circumstance in robbery with homicide; and if in the affirmative, (b)
whether treachery may be appreciated against Juan and Victor. On the first issue,
we rule in the affirmative. This Court has ruled over the years[54] that treachery is a
generic aggravating circumstance in the felony of robbery with homicide, a special
complex crime (un delito especial complejo) and at the same time a single and
indivisible offense (uno solo indivisible).[55] However, this Court in two cases has
held that robbery with homicide is a crime against property and hence treachery
which is appreciated only to crimes against persons should not be appreciated as a
generic aggravating circumstance.[56] It held in another case that treachery is not
appreciated in robbery with rape precisely because robbery with rape is a crime
against property.[57] These rulings of the Court find support in case law that in
robbery with homicide or robbery with rape, homicide or rape are merely incidents
of the robbery, with robbery being the main purpose and object of the
criminal.[58] Indeed, in People vs. Cando,[59] two distinguished members of this
Court advocated a review of the doctrine that treachery is a generic aggravating
circumstance in robbery with homicide. They opined that treachery is applicable
only to crimes against persons. After all, in People vs. Bariquit,[60] this Court in
a per curiam decision promulgated in year 2000 declared that treachery is
applicable only to crimes against persons. However, this Court held in People vs.
Cando that treachery is a generic aggravating circumstance in robbery with
homicide, citing its prior rulings that in robbery with homicide, treachery is a
generic aggravating circumstance when the victim of homicide is killed with
treachery. This Court opted not to apply its ruling earlier that year in People vs.
Bariquit.

Legal Luminaries in criminal law and eminent commentators of the Revised Penal
Code are not in full accord either. Chief Justice Ramon C. Aquino (Retired) says that
treachery is appreciated only in crimes against persons as defined in Title 10, Book
Two of the Code.[61] Chief Justice Luis B. Reyes (Retired) also is of the opinion that
treachery is applicable only to crimes against persons.[62] However, Justice Florenz
D. Regalado (Retired) is of a different view.[63] He says that treachery cannot be
considered in robbery but can be appreciated insofar as the killing is concerned,
citing the decisions of this Court in People vs. Balagtas[64] for the purpose of
determining the penalty to be meted on the felon when the victim of homicide is
killed with treachery.

It must be recalled that by Royal Order of December 17, 1886 the 1850 Penal Code
in force in Spain, as amended by the Codigo Penal Reformado de 1870 was applied
in the Philippines. The Penal Code of 1887 in the Philippines was amended by Act
3815, now known as the Revised Penal Code, which was enacted and published in
Spanish. In construing the Old Penal Code and the Revised Penal Code, this Court
had accorded respect and persuasive, if not conclusive effect to the decisions of the
Supreme Court of Spain interpreting and construing the 1850 Penal Code of Spain,
as amended by Codigo Penal Reformado de 1870.[65]

Article 14, paragraph 16 of the Revised Penal Code reads:

ART. 14. Aggravating circumstances. – The following are aggravating

circumstances:

xxx

16. That the act be committed with treachery (alevosia). There is treachery when
the offender commits any of the crimes against the person, employing means,
methods, or forms in the execution thereof which tend directly and specially to
insure its execution, without risk to himself arising from the defense which the
offended party might make.

The law was taken from Chapter IV, Article 10, paragraph 2 of the 1860 Penal Code
and the Codigo Penal Reformado de 1870 of Spain which reads:

Art. 10 ...2. Ejecutar el hecho con alevosia. Hay alevosia cuando el culpable comete
cualquiera de los delitos contra las personas empleando medios, modos o for mas
en la ejecucion que tiendan directa y especialmente a asegurarla sin riesgo para su
persona, que proceda de la defensa que pudiera hacer el ofendido. xxx

Article 14, paragraph 16 of the Revised Penal Code is a reproduction of the 1850
Penal Code of Spain and the Codigo Penal Reformado de 1870 with a slight
difference. In the latter law, the words “las personas” (the persons) are used,
whereas in Article 14, paragraph 6, of the Revised Penal Code, the words “the
person” are used.

Going by the letter of the law, treachery is applicable only to crimes against
persons as enumerated in Title Eight, Chapters One and Two, Book II of the
Revised Penal Code. However, the Supreme Court of Spain has consistently applied
treachery to robbery with homicide, classified as a crime against property. Citing
decisions of the Supreme Court of Spain, Cuello Calon, a noted commentator of the
Spanish Penal Code says that despite the strict and express reference of the penal
code to treachery being applicable to persons, treachery also applies to other
crimes such as robbery with homicide:[66]

Aun cuando el Codigo solo se refiere a los delitos contra las personas, cabe
estimarla en los que no perteneciendo a este titulo se determinan por muerte o
lesiones, como, en el robo con homicidio, y en el homicidio del Jefe del Estado que
es un delito contra la seguridad interior del Estado, y no obstante la referencia
estricta del texto legal a los delitos contra las personas no es la alevosia aplicable a
la mayoria de ellos, no lo es en el homicidio, pues como su concurrencia lo cualifica
lo transforma en delito distinto, en asesinato, ni en el homicidio consentido (art.
409), ni en la riña tumultuaria (art. 408) ni en el infanticidio (art. 410). xxx. [67]

Viada also says that treachery is appreciated in crimes against persons (delitos
contra personas) and also in robbery with homicide (robo con homicidio).[68]

“Contra las personas. - Luego la circunstancia de alevosia solo puede apreciarse en

los delitos provistos desde el art. 417 al 447, y en algun otro, como el
de robo con homicidio, atentario, a la vez que contra la propriedad, contra la
persona.”

Thus, treachery is a generic aggravating circumstance to robbery with homicide

although said crime is classified as a crime against property and a single and
indivisible crime. Treachery is not a qualifying circumstance because as ruled by the
Supreme Court of Spain in its decision dated September 11, 1878, the word
“homicide” is used in its broadest and most generic sense.[69]

Article 62, paragraph 1 of the Revised Penal Code provides that in diminishing or
increasing the penalty for a crime, aggravating circumstances shall be taken into
account. However, aggravating circumstances which in themselves constitute a
crime specially punishable by law or which are included by the law in defining a
crime and prescribing a penalty therefor shall not be taken into account for the
purpose of increasing the penalty.[70] Under paragraph 2 of the law, the same rule
shall apply with respect to any aggravating circumstances inherent in the crime to
such a degree that it must of necessity accompany the commission thereof.

1. Aggravating circumstances which in themselves constitute a crime specially

punishable by law or which are included by the law in defining a crime and
prescribing the penalty therefor shall not be taken into account for the purpose of
increasing the penalty.

xxx

2. The same rule shall apply with respect to any aggravating circumstances
inherent in the crime to such a degree that it must be of necessity accompany the
commission thereof.
Treachery is not an element of robbery with homicide. Neither does it constitute a
crime specially punishable by law nor is it included by the law in defining the crime
of robbery with homicide and prescribing the penalty therefor. Treachery is likewise
not inherent in the crime of robbery with homicide. Hence, treachery should be
considered as a generic aggravating circumstance in robbery with homicide for the
imposition of the proper penalty for the crime.

In its Sentencia dated March 14, 1877, the Supreme Court of Spain declared that
treachery is a generic aggravating circumstance not only in crimes against persons
but also in robbery with homicide. The high court of Spain applied Article 79 of the
Spanish Penal Code (Article 62 of the Revised Penal Code) and ruled that since
treachery is not a constitutive element of the crime of robbery with homicide nor is
it inherent in said crime, without which it cannot be committed, treachery is an
aggravating circumstance to said crime. The high court of Spain was not impervious
of the fact that robbery with homicide is classified as a crime against property.
Indeed, it specifically declared that the classification of robbery with homicide as a
crime against property is irrelevant and inconsequential in the application of
treachery. It further declared that it would be futile to argue that in crimes against
property such as robbery with homicide, treachery would have no application. This
is so, the high tribunal ruled, because when robbery is coupled with crimes
committed against persons, the crime is not only an assault (ataca) on the property
of the victims but also of the victims themselves (ofende):

xxx que la circunstancia agravante de alevosia ni es constitutiva del delito complejo

de robo y homicidio, ni de tal modo inherente que sin ella no pueda cometerse, sin
que quepa arguir que en los delitos contra la propiedad no debe aquella tener
aplicacion, porque cuando estos son complejos de los que se cometen contra las
personas, no solo se ataca a la propiedad, sino que se ofende a estas. xxx[71]

In fine, in the application of treachery as a generic aggravating

circumstance to robbery with homicide, the law looks at the constituent
crime of homicide which is a crime against persons and not at the
constituent crime of robbery which is a crime against property. Treachery
is applied to the constituent crime of “homicide” and not to the constituent
crime of “robbery” of the special complex crime of robbery with homicide.

The crime of robbery with homicide does not lose its classification as a
crime against property or as a special complex and single and indivisible
crime simply because treachery is appreciated as a generic aggravating
circumstance. Treachery merely increases the penalty for the crime
conformably with Article 63 of the Revised Penal Code absent any generic
mitigating circumstance.

In its Sentencia, dated July 9, 1877, the high tribunal of Spain also ruled that when
the victim of robbery is killed with treachery, the said circumstance should be
appreciated as a generic aggravating circumstance in robbery with homicide:

xxx que si aparece probado que el procesado y su co-reo convinieron en matar a un

conocido suyo, compañero de viaje, para lo cual desviaron cautelosamente los
carros que guiaban, en uno de los cuales iba el interfecto, dirigiendolos por otro
camino que conducia a un aljibon, y al llegar a este, valiendose de engaño para
hacer bajar a dicho interfecto, se lanzaron de improviso sobre el, tirandolo en
tierra, robandole el dinero, la manta y los talegos que llevaba, y atandole al pie una
piedra de mucho peso, le arrojaron con ella a dicho aljibon, dados estos hechos, no
cabe duda que constituyen el delito complejo del art. 516, num. I, con la
circunstancia agravante de alevosia, puesto que los medios, forma y modos
empleados en la ejecucion del crimen tendieron directa y especialmente a
asegurarla sin riesgo para sus autores, procedente de la defensa del ofendido.[72]

In sum then, treachery is a generic aggravating circumstance in robbery with

homicide when the victim of homicide is killed by treachery.

On the second issue, we also rule in the affirmative. Article 62, paragraph 4 of the
Revised Penal Code which was taken from Article 80 of the Codigo Penal Reformado
de 1870,[73] provides that circumstances which consist in the material execution of
the act, or in the means employed to accomplish it, shall serve to aggravate or
mitigate the liability of those persons only who had knowledge of them at the time
of the execution of the act or their cooperation therein. The circumstances
attending the commission of a crime either relate to the persons participating in the
crime or into its manner of execution or to the means employed. The latter has a
direct bearing upon the criminal liability of all the accused who have knowledge
thereof at the time of the commission of the crime or of their cooperation
thereon.[74] Accordingly, the Spanish Supreme Court held in its Sentencia dated
December 17, 1875 that where two or more persons perpetrate the crime of
robbery with homicide, the generic aggravating circumstance of treachery shall be
appreciated against all of the felons who had knowledge of the manner of the killing
of victims of homicide, with the ratiocination that:

xxx si por la Ley basta haberse ejecutado un homicidio simple con motivo ú ocasión
del robo para la imposicion de la pena del art. 516, num. I, no puede sere ni aun
discutible que, concurriendo la agravante de alevosia, se aumente la criminalidad
de los delincuentes; siendo aplicable a todos los autores del hecho indivisible,
porque no es circunstancia que afecte a la personalidad del delincuente, de las que
habla el art. 80 del Codigo penal en su primera parte, sino que consiste en la
ejecusion material del hecho y en los medios empleados para llevarle a cabo,
cuando de ellos tuvieron conocimiento todos los participantes en el mismo por el
concierto previo y con las condiciones establecidad en la segunda parte del citado
articulo.[75]
Be that as it may, treachery cannot be appreciated against Juan and Victor in the
case at bar because the same was not alleged in the Information as mandated by
Section 8, Rule 110 of the Revised Rules on Criminal Procedures which reads:

Sec. 8. Designation of the offense. - The complaint or information shall state the
designation of the offense given by the statute, aver the acts or omissions
constituting the offense and specify its qualifying and aggravating circumstances. If
there is no designation of the offense, reference shall be made to the section or
subsection of the statute punishing it.

Although at the time the crime was committed, generic aggravating circumstance
need not be alleged in the Information, however, the general rule had been applied
retroactively because if it is more favorable to the accused.[76] Even if treachery is
proven but it is not alleged in the information, treachery cannot aggravate the
penalty for the crime.

There being no modifying circumstances in the commission of the felony of robbery

with homicide, Juan and Victor should each be meted the penalty of reclusion
perpetua conformably with Article 63 of the Revised Penal Code.

Civil Liability of Juan and Victor

The trial court awarded the total amount of P300,000.00 to the heirs of SPO1
Manio, Jr. The court did not specify whether the said amounts included civil
indemnity for the death of the victim, moral damages and the lost earnings of the
victim as a police officer of the PNP. The Court shall thus modify the awards
granted by the trial court.

Since the penalty imposed on Juan and Victor is reclusion perpetua, the heirs of the
victim are entitled to civil indemnity in the amount of P50,000.00. The heirs are
also entitled to moral damages in the amount of P50,000.00, Rosemarie Manio
having testified on the factual basis thereof.[77] Considering that treachery
aggravated the crime, the heirs are also entitled to exemplary damages in the
amount of P25,000.00. This Court held in People vs. Catubig[78] that the retroactive
application of Section 8, Rule 110 of the Revised Rules of Criminal Procedure should
not impair the right of the heirs to exemplary damages which had already accrued
when the crime was committed prior to the effectivity of the said rule. Juan and
Victor are also jointly and severally liable to the said heirs in the total amount of
P30,000.00 as actual damages, the prosecution having adduced evidence receipts
for said amounts. The heirs are not entitled to expenses allegedly incurred by them
during the wake as such expenses are not supported by receipts.[79] However, in
lieu thereof, the heirs are entitled to temperate damages in the amount of
P20,000.00.[80] The service firearm of the victim was turned over to the Evidence
Custodian of the Caloocan City Police Station per order of the trial court on October
22, 1997.[81] The prosecution failed to adduce documentary evidence to prove the
claim of Five Star Bus, Inc. in the amount of P6,000.00. Hence, the award should
be deleted. However, in lieu of actual damages, the bus company is entitled to
temperate damages in the amount of P3,000.00.[82]

The heirs are likewise entitled to damages for the lost earnings of the victim. The
evidence on record shows that SPO1 Manio, Jr. was born on August 25, 1958. He
was killed on September 28, 1996 at the age of 38. He had a gross monthly salary
as a member of the Philippine National Police of P8,065.00 or a gross annual salary
of P96,780.00. Hence, the heirs are entitled to the amount of P1,354,920.00 by
way of lost earnings of the victim computed, thus:

Age of the victim = 38 years old

Life expectancy = 2/3 x (80 – age of the victim at the time of death)

= 2/3 x (80-38)

= 2/3 x 42

= 28 years

Gross Annual Income = gross monthly income x 12 months

= P8,065.00 x 12

= P96,780.00

Living Expenses = 50% of Gross Annual Income

= P96,780.00 x 0.5

= P48,390.00

= Life expectancy x [Gross Annual Income-

Lost Earning Capacity
Living expenses]

= 28 x [P96,780.00 – P48,390.00]

= 28 x P48,390.00

= P1,354,920.00
IN LIGHT OF ALL THE FOREGOING, the Decision of the Regional Trial Court of
Bulacan is hereby AFFIRMED with MODIFICATIONS. Accused-appellants Juan
Gonzales Escote, Jr. and Victor Acuyan are hereby found guilty beyond reasonable
doubt of the felony of robbery with homicide defined in Article 294, paragraph 1 of
the Revised Penal Code and, there being no modifying circumstances in the
commission of the felony, hereby metes on each of them the penalty
of RECLUSION PERPETUA. Said accused-appellants are hereby ordered to pay
jointly and severally the heirs of the victim SPO1 Jose C. Manio, Jr. the amounts of
P50,000.00 as civil indemnity, P50,000.00 as moral damages, P1,349,920.00 for
lost earnings, P30,000.00 as actual damages and P25,000.00 as exemplary
damages. The award of P6,000.00 to the Five Star Bus, Inc. is deleted. However,
the said corporation is awarded the amount of P3,000.00 as temperate damages.

Costs de oficio.

SO ORDERED.

[ G.R. Nos. 138306-07, December 21, 2001 ]

PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS.
SPO1 EDUARDO ANCHETA Y RODIGOL, ACCUSED-APPELLANT.

DECISION

BELLOSILLO, J.:

This is an appeal from the Decision of the Regional Trial Court Caloocan City finding
SPO1 accused-appellant SPO1 Eduardo Ancheta y Rodigol guilty of Murder in Crim.
Case No. C-44939 and of Frustrated Murder in Crim. Case No. 44940.[1]

SPO1 Eduardo Ancheta y Rodigol[2] was originally charged with Homicide in Crim.
Case No. C-44939 and Frustrated Homicide in Crim. Case No. C-44940. However,
upon motion of private complainant, a reinvestigation was conducted and the
Informations were amended to charge the accused with Murder in Crim. Case No.
C-44939 and Frustrated Murder in Crim Case No. C-44940.

In the amended Information for Murder, it was alleged that the accused "with
deliberate intent to kill and with treachery and evident premeditation, did then and
there willfully, unlawfully and feloniously shoot one Julian Ancheta y Rodigol on the
left temple, thereby inflicting upon the latter serious physical injuries, which injuries
caused the victim's death."[3] On the other hand, in the
amended Information for Frustrated Murder it was alleged that the accused "with
deliberate intent to kill and with treachery and evident premeditation, did then and
there willfully, unlawfully and feloniously shoot with a gun one Jonathan Aromin y
Cardinez on the right cheek, thus performing all the acts of execution which would
constitute the crime of Murder as a consequence but which nevertheless did not
produce it by reason of causes independent of the will of the herein accused, that
is, due to timely, able and efficient medical attendance rendered to the victim."[4]

During trial, the main witness for the prosecution, Jonathan Aromin, testified that
on the night of 2 September 1993 he and his neighbor Julian Ancheta went to the
house of the accused who lived just across them.[5] Julian told Jonathan to knock on
the door first but when no one answered Julian did the knocking himself.[6] When
the accused opened the door, Jonathan immediately noticed that SPO1 Ancheta was
armed with a gun. Intimidated, Jonathan began to move away.[7] As he left the
house of the accused, Jonathan suddenly heard two (2) shots which prompted him
to hide behind the nearest wall. But when he looked back the accused SPO1
Ancheta was already aiming his revolver directly at his face and without hesitation
shot him at close range.[8] Stunned by the gunshot wound, Jonathan momentarily
blacked out but soon regained consciousness when his neighbor, Leonila Lopez,
came to his aid and rushed him to the Jose Reyes Memorial Medical Center.[9] At
the hospital, the slug that pierced his right cheek was removed from his left
shoulder and was subsequently released on 7 September 1993.[10]

Leonila Lopez narrated that her house was right across the house of the accused,
separated only by a narrow alley.[11] At around 8:00 o'clock in the evening of 2
September 1993 while she was preparing dinner, she was startled by the sound of
two (2) gunshots coming from the house of the accused. She immediately told her
children to go inside and as she was about to close her windows she saw Jonathan
Aromin running towards her house, followed by the accused. She then saw the
accused shoot Jonathan Aromin on the right cheek. After the accused left, she
helped the hapless victim and brought him to the hospital.[12] She was
approximately a meter away when she witnessed the shooting.[13]

Virginia Ancheta, wife of Julian Ancheta, testified that she and her deceased
husband had two (2) children and that she incurred P54,200.00 as funeral expenses
for his burial.[14]

Dr. Roberto Garcia, a Medico-Legal Officer of the NBI, testified that he autopsied
the body of Julian Ancheta on 3 September 1993. Julian sustained three (3)
gunshot wounds. One (1) bullet pierced the the back of his left forearm and exited
in front thereof, another entered the rear left portion of the neck and exited
through the right rear portion thereof, while the fatal bullet pierced the front
portion of the left ear without an exit wound.[15] However, although Dr. Garcia
concluded that three (3) bullets hit the deceased, he did not discount the possibility
that the three (3) wounds could have been caused by only two (2) bullets as the
left arm, being a movable part of the body, might have been in the way when the
bullet exited through the neck of the victim.[16]

Police Officer 3 Feliciano Almojuela of the Intelligence and Investigation Division,

PNP Station, Caloocan City, claimed that in the early morning of 3 September 1993
he received a report of a shooting incident at Block 36, Phase 3-F-1 Dagat-dagatan,
Caloocan City.[17] Upon reaching the crime scene he was informed that the slain
victim was S/Sgt. Julian Ancheta of the Philippine Air Force and the suspect was the
deceased's brother SPO1 Eduardo Ancheta. When he learned that another victim
was confined at the Jose Reyes Memorial Medical Center he went there and found
Jonathan Aromin in critical condition. Thinking that the victim might not survive he
immediately interviewed him and took an "ante-mortem" statement.[18] In the
afternoon of the same day, the accused voluntarily surrendered himself as well as
his service firearm at the PNP Station in Caloocan City.[19] At around 11:00 p.m.,
PO3 Almojuela brought the accused to the hospital where the latter was positively
identified by Jonathan Aromin as the assailant.[20]

Dr. Abraham Gonzales, the resident physician at the Jose Reyes Memorial Medical
Center, testified that he was on duty on 2 September 1993 when Jonathan Aromin
was admitted. Upon examination he observed that the victim sustained a gunshot
wound on the right portion of his jaw and no exit wound was visible.[21] During
treatment, the lead slug was recovered from the left side of the neck or from the
"trapicious muscle."[22] He added that were it not for the timely medical intervention
Jonathan Aromin would have died.[23]

In his defense, the accused claimed that on the night of 2 September 1993 he was
sleeping at home with his wife and son when he was awakened by the sound of
someone banging on his door.[24] After a brief silence he heard him say: "Pare
buksan mo ito." Sensing danger, the accused took his gun from under his pillow
and ordered the person to identify himself. But the stranger just kept on banging
the door and insisted that it be opened.[25] When he finally opened the door, he saw
his brother Julian Ancheta and his neighbor Jonathan Aromin. Upon seeing them, he
inquired as to why his brother addressed him as "pare" but instead of answering,
Julian Ancheta angrily asked him why he was holding a gun.[26] To appease his
brother, the accused lowered his pistol and explained that the gun was only for
protection as he had no idea who was banging his door in the middle of the night.
He then invited them into the house, but when he turned around his brother
suddenly grabbed his hand from behind to disarm him.[27] As they grappled, the
gun accidentally fired twice and the next thing he saw was his brother sprawled on
the ground and Jonathan Aromin was nowhere to be found. He never knew what
actually happened to Jonathan Aromin as his back was turned against him when the
gun went off.[28]
Confused by the startling events, the accused just took his family to the house of
his wife's cousin. His wife then convinced him to spend the night with them and
postpone his surrender until the next day.[29] At around 6:00 o'clock p.m.[30] of 3
September 1993 he surrendered at the PNP Station in Caloocan City. After being
taken into custody, PO3 Almojuela brought him to the Jose Reyes Memorial Hospital
where Jonathan Aromin identified him as the perpetrator.[31]

On 26 March 1999 the trial court, giving credence to the prosecution witnesses,
found the accused guilty of both charges.[32] In Crim. Case No. C- 44939, the
accused was found guilty of Murder and sentenced to reclusion perpetua. He was
also ordered to pay the heirs of the victim P50,000.00 as death indemnity,
P54,200.00 as actual and compensatory damages and the costs. In Crim. Case No.
C-44940 the accused was found guilty of Frustrated Murder and was sentenced to
ten (10) years of prision mayor as minimum to fourteen (14) years and eight (8)
months of reclusion temporal as maximum. He was also ordered to pay Jonathan
Aromin P30,000.00 as moral damages and the costs.[33]

Accused-appellant, in his brief, raises two (2) points: First, his guilt was not proved
beyond reasonable doubt as the circumstantial evidence presented by the
prosecution failed to establish that he intended to kill Julian Ancheta and Jonathan
Aromin. Second, the court a quo gravely erred in convicting him of murder and
frustrated murder since there was no proof that the killing was attended by evident
premeditation or treachery.[34]

The defense of accused-appellant is that the death of Julian Ancheta and the injury
of Jonathan Aromin were caused by the accidental gunshots which occurred when
he and the deceased grappled for the gun. Thus, absent any intent to kill the
victims, he could not be convicted of homicide or murder.

However, the evidence presented proves otherwise.

The autopsy of Julian Ancheta reveals that he sustained three (3) bullet wounds:
one (1) in the rear of the left forearm, another on the left rear portion of his neck
and the most fatal one, on the front portion of his left temple.

On the other hand, Jonathan Aromin sustained a gunshot wound on his right cheek
which would have caused his death had it not been for the timely medical attention.
Based on the number of bullet wounds and the location of the injuries sustained by
the victims it is quite impossible to believe that such wounds were caused by two
(2) accidental gunshots which ensued while the accused and the deceased wrestled
for the gun. On the contrary, the location of the injuries proves that accused-
appellant intentionally shot his own brother to death and thereafter shot the
eyewitness at point blank to permanently silence him.
Further, Jonathan Aromin categorically and positively identified accused-appellant
as the person who pursued and shot him at close range. This Court has no reason
to doubt his testimony for even accused-appellant admitted that he and the witness
were in good terms prior to the incident.[35] Neither does this Court have any
ground to question the veracity of Leonila Lopez's testimony that she saw accused-
appellant shoot Jonathan Aromin as there was no proved ill motive on her part.
Thus, where there is no evidence to show any dubious reason or improper motive
why prosecution witnesses should testify falsely against the accused or falsely
implicate him in a heinous crime, such testimonies are worthy of full faith and
credit.[36] Besides, it has been an established rule that unless the trial judge
overlooked certain facts of substance and value, which if considered might affect
the result of the case, appellate courts will not disturb the credence, or lack of it,
accorded by the trial court to the testimonies of witnesses.[37] We find no reason to
deviate from this well-entrenched principle.

But although we affirm the factual findings of the trial court on the presence of
"intent to kill," we believe that the killing of Julian Ancheta and the shooting of
Jonathan Aromin were not qualified by treachery.

While it was established that accused-appellant intentionally shot his brother Julian,
the witnesses never saw how the killing started. Treachery cannot be considered
where the witnesses did not see the commencement of the assault and the
importance of such testimonies cannot be overemphasized considering that
treachery cannot be presumed nor established from mere suppositions.[38] And
where no particulars are shown as to the manner by which the aggression was
commenced or how the act which resulted in the death of the victim began and
developed, treachery can in no way be established.[39] Hence, without the existence
of treachery accused-appellant can only be convicted of homicide in Crim. Case No.
C-44939.

Neither was treachery established in the shooting of Jonathan Aromin. Two (2)
conditions must concur for treachery to exist, namely: (a) the employment of
means of execution that gave the person attacked no opportunity to defend himself
or to retaliate; and, (b) the means or method of execution was deliberately or
consciously adopted.[40] Both these circumstances must be proved as indubitably as
the crime itself.[41]

In the case at bar, however, there is no sufficient proof to establish with certainty
that accused-appellant deliberately and consciously adopted the means of executing
the crime against Jonathan Aromin. Furthermore, the victim was already aware of
the danger as he saw accused-appellant carrying a gun and heard two (2) gunshots
prompting him to run and hide behind a wall.[42] Thus, there could be no treachery
since prior to the attack the victim was forewarned of the danger to his life and
even managed to flee, albeit unsuccessfully.[43] Consequently, accused-appellant
can only be convicted of frustrated homicide in Crim. Case No.C-44940.

It must be noted that the testimonies of the witnesses show that accused-appellant
surrendered himself on 3 September 1993 at the PNP Station in Caloocan City. For
voluntary surrender to be appreciated as a mitigating circumstance the following
requisites must concur: (a) the offender had not been actually arrested; (b) the
offender surrendered himself to a person in authority; and, (c) the surrender was
voluntary.[44] All these requisites were present in this case as PO3 Feliciano
Almojuela confirmed that on 3 September 1993, the day after the incident,
accused-appellant voluntarily gave himself up and his service firearm at the PNP
Station in Caloocan City.[45] Thus, the mitigating circumstance of voluntary
surrender should be appreciated in his favor.

Article 249 of The Revised Penal Code provides that the penalty for homicide
is reclusion temporal. There being one mitigating circumstance, namely, voluntary
surrender, the imposable penalty is reclusion temporal in its minimum period the
range of which is twelve (12) years and one (1) day to fourteen (14) years and
eight (8) months. Applying the Indeterminate Sentence Law, the maximum shall be
taken from the minimum of the imposable penalty while the minimum shall be
taken from the penalty next lower in degree, which is prision mayor the range of
which is six (6) years and one (1) day to twelve (12) years.

Article 50 of The Revised Penal Code provides that the penalty next lower in degree
than that prescribed by law for the consummated felony shall be imposed upon the
principal in a frustrated felony. Thus, in Crim. Case No. C-44940, there also being
one (1) mitigating circumstance, the maximum term of the indeterminate sentence
shall be taken from prision mayor in its minimum period, the range of which is from
six (6) years and one (1) day to eight (8) years, while the minimum term shall be
taken from the penalty next lower in degree which is prision correccional, in any of
its periods, the range of which is six (6) months and one (1) day to six (6) years.

WHEREFORE, the Decision of the trial court appealed from convicting accused-
appellant SPO1 Eduardo Ancheta y Rodigol of Murder in Crim. Case No. C-
44939 and Frustrated Murder in Crim. Case No. C-44940, is MODIFIED.

In G.R. No. 138306 (Crim. Case No C-44939), accused-appellant SPO1 Eduardo

Ancheta y Rodigol is found guilty of HOMICIDE and is sentenced to an
indeterminate prison term of six (6) years eight (8) months and ten (10) days
of prision mayor minimum as minimum to twelve (12) years six (6) months and
twenty (20) days of reclusion temporal minimum as maximum. He is also ordered
to pay the heirs of Julian Ancheta P50,000.00 as death indemnity, P54,200.00 as
actual and compensatory damages, plus the costs.

In G.R. No. 138307 (Crim. Case No. C-44940), accused-appellant SPO1 Eduardo
Ancheta y Rodigol is found guilty of FRUSTRATED HOMICIDE and is sentenced to an
indeterminate prison term of two (2) years two (2) months and twenty (20) days
of prision correccional minimum as minimum to six (6) years four (4) months and
ten (10) days of prision mayor minimum as maximum. He is also ordered to pay
Jonathan Aromin P30,000.00 as moral damages plus the costs.

SO ORDERED.

[ G.R. No. 121828, June 27, 2003 ]

PEOPLE OF THE PHILIPPINES, APPELLEE, VS. EDMAR
AGUILOS, ODILON LAGLIBA Y ABREGON AND RENE GAYOT
PILOLA, ACCUSED, RENE GAYOT PILOLA, APPELLANT.

DECISION

CALLEJO, SR., J.:

Before us is the appeal of appellant Rene Gayot Pilola for the reversal of the
Decision[1] of the Regional Trial Court (RTC) of Pasig City, Branch 164, convicting
him of murder, sentencing him to suffer reclusion perpetua and ordering him to
indemnify the heirs of the victim Joselito Capa y Rulloda in the amount of P50,000
for the latter's death.

The Indictment

On June 7, 1998, Edmar Aguilos, Odilon Lagliba y Abregon and appellant Rene
Gayot Pilola were charged with murder in an Information which reads:
That on or about the 5th day of February, 1988 in the Municipality of Mandaluyong,
Metro Manila, Philippines, a place within the jurisdiction of this Honorable Court, the
above-named accused, conspiring and confederating together with one Ronnie
Diamante who is still at-large and no fixed address and mutually helping and aiding
with one another, armed with double-bladed knives and a bolo and with intent to
kill, treachery and taking advantage of superior strength, did then and there
willfully, unlawfully and feloniously attack, assault hack and stab one Joselito Capa
y Rulloda, as a result of which the latter sustained hack and stab wounds on the
different parts of his body, which directly caused his death.

CONTRARY TO LAW.[2]
Of the three accused, Odilon Lagliba was the first to be arrested[3] and tried, and
subsequently convicted of murder.[4] The decision of the trial court became final and
executory. Accused Edmar Aguilos remains at large while accused Ronnie
Diamante reportedly died a month after the incident. Meanwhile, herein appellant
Rene Gayot Pilola was arrested. He was arraigned on March 9, 1994, assisted by
counsel, and pleaded not guilty to the charge.[5] Thereafter, trial of the case
ensued.

The Evidence of the Prosecution[6]

On February 5, 1988, at around 11:30 p.m., Elisa Rolan was inside their store at
613 Nueve de Pebrero Street, Mandaluyong City, waiting for her husband to
arrive. Joselito Capa and Julian Azul, Jr. were drinking beer. Edmar Aguilos and
Odilon Lagliba arrived at the store. Joselito and Julian invited them to join their
drinking spree, and although already inebriated, the two newcomers obliged. In
the course of their drinking, the conversation turned into a heated
argument. Edmar nettled Julian, and the latter was peeved. An altercation
between the two ensued. Elisa pacified the protagonists and advised them to go
home as she was already going to close up. Edmar and Odilon left the
store. Joselito and Julian were also about to leave, when Edmar and Odilon
returned, blocking their way. Edmar took off his eyeglasses and punched Julian in
the face. Elisa shouted: "Tama na. Tama na." Edmar and Julian ignored her and
traded fist blows until they reached Aling Sotera's store at the end of the street,
about twelve to fifteen meters away from Elisa's store. For his part, Odilon
positioned himself on top of a pile of hollow blocks and watched as Edmar and
Julian swapped punches. Joselito tried to placate the protagonists to no
avail. Joselito's intervention apparently did not sit well with Odilon. He pulled out
his knife with his right hand and stepped down from his perch. He placed his left
arm around Joselito's neck, and stabbed the latter. Ronnie and the appellant, who
were across the street, saw their gangmate Odilon stabbing the victim and decided
to join the fray. They pulled out their knives, rushed to the scene and stabbed
Joselito. Elisa could not tell how many times the victim was stabbed or what parts
of his body were hit by whom. The victim fell in the canal. Odilon and the
appellant fled, while Ronnie went after Julian and tried to stab him. Julian ran for
dear life. When he noticed that Ronnie was no longer running after him, Julian
stopped at E. Rodriguez Road and looked back. He saw Ronnie pick up a piece of
hollow block and with it bashed Joselito's head. Not content, Ronnie got a piece of
broken bottle and struck Joselito once more. Ronnie then fled from the scene.
Joselito died on the spot. Elisa rushed to Joselito's house and informed his wife and
brother of the incident.[7]

The next day, Dr. Bienvenido MuÙŒoz, Supervising Medico-Legal Officer of the
National Bureau of Investigation, conducted an autopsy on the cadaver of Joselito
and prepared Autopsy Report No. N-88-375,[8] with the following findings:
POSTMORTEM FINDINGS

Pallor, conjunctivae and integument, marked and generalized.

Contused abrasions: temple, right, 3.0 x 3.0 cm.; mandibular region, right, 2.0 x
8.0 cm.; back, suprascapular region, left, 3.0 x 4.0 cm.; deltoid region, right, 1.0 x
3.0 cm.

Lacerated wound, scalp, occipital region, 4.0 cm.

Incised wounds: forehead, right side, 5.5 cm.; arm, left, upper third, posterior
aspect, 1.5 cm.

Stab wounds:

1. Elliptical, 1.8 cm., oriented almost horizontally, edges are clean-

cut, medial extremity is sharp, lateral extremity is blunt; located at the
anterior chest wall, level of 3rd intercostal space, right, 5.0 cm. from
anterior median line; directed backward, upward and medially, non-
penetrating, with an approximate depth of 3.0 cm.;

2. Elliptical, 1.5 cm., oriented almost horizontally, edges are clean-

cut, one extremity is sharp and the other is blunt; located at the
antero-lateral aspect of chest, level of 3rd intercostal space, left, 3.0
cm. from anterior median line; directed backward, downward and
medially, into the left thoracic cavity, penetrating the left ventricle of
the heart with an approximate depth of 10.0 cm.;

3. Elliptical, 3.0 cm., oriented almost horizontally, edges are clean-

cut, one extremity is sharp and the other is blunt; located at the
antero-lateral aspect of chest, level of 4th intercostal space, 12.0 cm.
from anterior median line; directed backward, downward and medially,
penetrating upper lobe of left lung with an approximate depth of 9.0
cm.;

4. Elliptical, 2.0 cm., oriented almost horizontally, edges are clean-

cut, one extremity is sharp and the other is blunt; located at the
antero-lateral aspect of chest, level of 5th intercostal space, left, 15.0
cm. from anterior median line; directed backward, downward and
medially, penetrating the left thoracic cavity and then lower lobe of left
lung and then penetrating the left ventricle of the heart with an
approximate depth of 11.0 cm.;

5. Elliptical, 1.3 cm., oriented almost horizontally, edges are clean-

cut, one extremity is sharp and the other is blunt; located at the
lateral chest wall, level of 7th intercostal space, left, 16.0 cm. from
anterior median line; directed backward, upward and medially, into the
left thoracic cavity and then penetrating the lower lobe of left lung with
an approximately depth of 10.0 cm.;

6. Elliptical, 4.0 cm., oriented almost horizontally, edges are clean-

cut, one extremity is sharp and the other is blunt; located at the
lumbar region, left, 14.0 cm. from anterior median line; directed
backward, upward and medially, into the abdominal cavity and then
penetrating ileum;

7. Elliptical, 1.5 cm., oriented almost vertically, edges are clean-cut,

upper extremity is sharp, lower extremity is blunt; located at the
 chest, lateral, level of 9th intercostal space, left; 14.0 cm. from
posterior median line; directed forward, upward and medially, non-
penetrating with an approximate depth of 4.0 cm.;

8. Elliptical, 2.0 cm., oriented almost vertically, edges are clean-cut,

upper extremity is blunt, lower extremity is sharp; located at the
abdomen, postero-lateral aspect, 15.0 cm. from posterior median line;
directed forward, upward and laterally, into the abdominal cavity and
then perforating the spleen and pancreas with an approximate depth
of 13.0 cm.;

9. Elliptical, 5.0 cm., oriented almost vertically, edges are clean-cut,

upper extremity is blunt, lower extremity is sharp; located at the left
arm, upper third, anterior; directed backward, downward and
medially, ;

10. Elliptical, 2.3 cm., oriented almost vertically, edges are clean-cut,
upper extremity is sharp, lower extremity is blunt; located at the left
forearm, upper third, anterior; directed backward, upward and
medially and com
11. Elliptical, 2.0 cm., oriented almost vertically, edges are clean-cut,
upper extremity blunt, lower extremity, sharp; located at the left arm,
lower third, posterior aspect, directed forward, downward and
medially, communicating with another wound, arm, left, lower third,
posterior aspect, 1.5 cm.

Hemothorax, left - 900 c.c.

Hemopericardium - 300 c.c.
Hemoperitoneum - 750 c.c.
Brain and other visceral organs, pale.
Stomach-filled with rice and other food particles.
CAUSE OF DEATH: Multiple stab wound
The Evidence of the Appellant

The appellant denied stabbing the victim and interposed the defense of alibi. He
testified that at around 11:00 p.m. of February 5, 1988, he was in the house of his
cousin, Julian Cadion, at 606 Nueve de Pebrero Street, Mandaluyong City. He
suddenly heard a commotion coming from outside. Julian rushed out of the house
to find out what was going on. The appellant remained inside the house because
he was suffering from ulcer and was experiencing excessive pain in his stomach.
The following morning, the appellant learned from their neighbor, Elisa Rolan, that
Joselito had been stabbed to death. The appellant did not bother to ask who was
responsible for the stabbing.[9]

Julian alias "Buboy" Cadion corroborated the appellant's testimony. He testified

that the appellant was in their house on the night of February 5, 1988, and was
suffering from ulcer. The appellant stayed home on the night of the incident.[10]
Agripina Gloria, a female security guard residing at Block 30, Nueve de Pebrero,
612, Int. 4, Allison St., Mandaluyong City, testified that on February 5, 1988 at
around 11:00 p.m., she heard a commotion outside. Momentarily, she saw Ronnie
rush into the kitchen of the house of her niece Teresita; he took a knife and run
towards Nueve de Pebrero Street where Edmar and Julian were fighting. She then
followed Ronnie and saw Joselito trying to pacify the protagonists. Ronnie grabbed
Joselito and instantly stabbed the latter, who for a while retreated and fell down the
canal. Not content, Ronnie repeatedly stabbed Joselito. Thereafter, Ronnie ran
towards the direction of the mental hospital. Agripina did not see Odilon or the
appellant anywhere within the vicinity of the incident.[11]

On May 3, 1995, the trial court rendered its assailed decision, the dispositive
portion of which reads, to wit:
WHEREFORE, this Court finds RENE GAYOT PILOLA of 606 Nueve de Febrero Street,
Mandaluyong City, GUILTY beyond reasonable doubt of Murder punished under
Article 248 of the Revised Penal Code, and there being no mitigating nor
aggravating circumstances, he is hereby sentenced to reclusion perpetua. Pilola is
hereby ordered to indemnify the heirs of deceased Joselito Capa alias Jessie in the
amount of FIFTY THOUSAND PESOS (P50,000.00) as indemnity for his death jointly
and solidarily with Odilon Lagliba who was earlier convicted herein. With cost
against the accused.[12]
In the case at bar, the appellant assails the decision of the trial court contending
that:
I

THE TRIAL COURT ERRED IN CONCLUDING THAT THERE WAS CONSPIRACY ANENT
THE ASSAILED INCIDENT.

II

THE TRIAL COURT ERRED IN GIVING CREDENCE TO THE UNRELIABLE AND

INCONSISTENT TESTIMONY OF PROSECUTION WITNESS ELISA ROLAN AND IN
SETTING ASIDE THE EVIDENCE PROFFERED BY ACCUSED-APPELLANT.

III
THE TRIAL COURT MANIFESTLY ERRED IN CONVICTING ACCUSED-APPELLANT OF
THE CRIME CHARGED DESPITE THE FACT THAT HIS GUILT WAS NOT PROVED
BEYOND REASONABLE DOUBT.[13]

The appellant avers that Elisa is not a credible witness and her testimony is barren
of probative weight. This is so because she contradicted herself when she testified
on direct examination that Ronnie struck the head of the victim with a hollow
block. However, on cross-examination, she stated that it was Edmar who struck
the victim. The inconsistency in Elisa's testimony impaired her credibility.
The contention of the appellant does not hold water.

First. The identity of the person who hit the victim with a hollow block is of de
minimis importance. The victim died because of multiple wounds. The appellant is
charged with murder for the killing of the victim with a knife, in conspiracy with the
other accused.

Second. The perceived inconsistency in Elisa's account of events is a minor and

collateral detail that does not affect the substance of her testimony, as it even
serves to strengthen rather than destroy her credibility.[14]

Third. Elisa has been consistent in her testimony that the appellant was one of the
men who stabbed the victim, the others being Ronnie and Odilon. Elisa's testimony
is corroborated by the autopsy report of Dr. Bienvenido MuÙŒoz and his testimony
that the victim sustained eleven stab wounds. The doctor testified that there were
two or more assailants:
Q Could you tell the court what instrument could have been used by the perpetrator in
inflicting those two incise wounds?
A Those incise wounds were caused by a sharp instrument like a knife or any similar
instrument.

...

Q Now you also found out from the body of the victim eleven stab wounds?
A Yes, sir.

Q Now, tell the court in which part of the body of the victim where these eleven stab
wounds [are] located?
A Shall I go one by one, all the eleven stab wounds?

Q All the eleven stab wounds?

A One stab wound was located at the front portion of the chest, right side. Another stab
wound was located also on the chest left side, another stab wound was located at the
antero lateral aspect, it's the front of the chest almost to the side. And also another one,
also at the chest, another stab wound was at the left side of the chest and another one
was at the lumbar region of the abdomen left side or where the left kidney is located,
lumbar area. Another one at the side of the chest, left side of the chest. Another stab
wound in the abdomen, another stab wound at the left arm. Another one at the left
forearm and the last one in the autopsy report is located at the left arm. These are all
the eleven stab wounds sustained by the victim.

...

A The instrument used was a sharp pointed edge or a single bladed instrument like a
knife, kitchen knife, balisong or any similar instrument.
Q Considering the number of stab wounds, doctor, will you tell us whether there were
several assailants?
A In my opinion, there were more than one assailants (sic) here because of the presence
of different types of stab wounds and lacerated wounds. This lacerated wound could
not have been inflicted by the one holding the one which inflicted the instrument . .
(discontinued) which inflicted the stab wounds.

Q So there could have been two or three assailants?

A More than one.[15]
The physical evidence is a mute but eloquent manifestation of the veracity of Elisa's
testimony.[16]

Fourth. Even the appellant himself declared on the witness stand that he could not
think of any reason why Elisa pointed to him as one of the assailants. In a litany of
cases, we have ruled that when there is no showing of any improper motive on the
part of a witness to testify falsely against the accused or to falsely implicate the
latter in the commission of the crime, as in the case at bar, the logical conclusion is
that no such improper motive exists, and that the testimony is worthy of full faith
and credence.[17]

Fifth. The trial court gave credence and full probative weight to Elisa's
testimony. Case law has it that the trial court's calibration of the testimonial
evidence of the parties, its assessment of the credibility of witnesses and the
probative weight thereof is given high respect, if not conclusive effect, by the
appellate court.

The appellant argues that the prosecution failed to prove that he conspired with
Ronnie and Odilon in stabbing the victim to death. He contends that for one to be a
conspirator, his participation in the criminal resolution of another must either
precede or be concurrent with the criminal acts. He asserts that even if it were true
that he was present at the situs criminis and that he stabbed the victim, it was
Odilon who had already decided, and in fact fatally stabbed the victim. He could
not have conspired with Odilon as the incident was only a chance encounter
between the victim, the appellant and his co-accused. In the absence of a
conspiracy, the appellant cannot be held liable as a principal by direct participation.
Elisa could not categorically and positively assert as to what part of the victim's
body was hit by whom, and how many times the victim was stabbed by the
appellant. He asserts that he is merely an accomplice and not a principal by direct
participation.

We are not persuaded by the ruminations of the appellant.

There is conspiracy when two or more persons agree to commit a felony and decide
to commit it.[18] Conspiracy as a mode of incurring criminal liability must be proved
separately from and with the same quantum of proof as the crime
itself. Conspiracy need not be proven by direct evidence. After all, secrecy and
concealment are essential features of a successful conspiracy. 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.[19] Conspiracy may be implied if it is proved that two or more persons aimed
by 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.[20] There may be conspiracy even if an
offender does not know the identities of the other offenders,[21] and even though he
is not aware of all the details of the plan of operation or was not in on the scheme
from the beginning.[22] One need only to knowingly contribute his efforts in
furtherance of it.[23] One who joins a criminal conspiracy in effect adopts as his own
the criminal designs of his co-conspirators. If conspiracy is established, all the
conspirators are liable as co-principals regardless of the manner and extent of their
participation since in contemplation of law, the act of one would be the act of
all.[24] Each of the conspirators is the agent of all the others.[25]

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
conspiracy.[26] The mere presence of an accused at the situs of the crime will not
suffice; mere knowledge, acquiescence or approval of the act without cooperation
or agreement to cooperate on the part of the accused is not enough to make him a
party to a conspiracy. There must be intentional participation in the transaction
with a view to the furtherance of the common design and purpose.[27] Conspiracy to
exist does not require an agreement for an appreciable period prior to the
occurrence. From the legal standpoint, conspiracy exists if, at the time of the
commission of the offense, the accused had the same purpose and were united in
its execution.[28] As a rule, the concurrence of wills, which is the essence of
conspiracy, may be deduced from the evidence of facts and circumstances, which
taken together, indicate that the parties cooperated and labored to the same
end.[29]

Even if two or more offenders do not conspire to commit homicide or murder, they
may be held criminally liable as principals by direct participation if they perform
overt acts which mediately or immediately cause or accelerate the death of the
victim, applying Article 4, paragraph 1 of the Revised Penal Code:
Art. 4. Criminal liability. — Criminal liability shall be incurred:

1. By any person committing a felony (delito) although the

wrongful act done be different from that which he intended.
In such a case, it is not necessary that each of the separate injuries is fatal in
itself. It is sufficient if the injuries cooperated in bringing about the victim's
death. Both the offenders are criminally liable for the same crime by reason of
their individual and separate overt criminal acts.[30] Absent conspiracy between two
or more offenders, they may be guilty of homicide or murder for the death of the
victim, one as a principal by direct participation, and the other as an accomplice,
under Article 18 of the Revised Penal Code:
Art. 18. Accomplices. — Accomplices are the persons who, not being included in
Article 17, cooperate in the execution of the offense by previous or simultaneous
acts.
To hold a person liable as an accomplice, two elements must concur: (a) the
community of criminal design; that is, knowing the criminal design of the principal
by direct participation, he concurs with the latter in his purpose; (b) the
performance of previous or simultaneous acts that are not indispensable to the
commission of the crime.[31] Accomplices come to know about the criminal
resolution of the principal by direct participation after the principal has reached the
decision to commit the felony and only then does the accomplice agree to
cooperate in its execution. Accomplices do not decide whether the crime should be
committed; they merely assent to the plan of the principal by direct participation
and cooperate in its accomplishment.[32] However, where one cooperates in the
commission of the crime by performing overt acts which by themselves are acts of
execution, he is a principal by direct participation, and not merely an accomplice.[33]

In this case, Odilon all by himself initially decided to stab the victim. The appellant
and Ronnie were on the side of the street. However, while Odilon was stabbing the
victim, the appellant and Ronnie agreed to join in; they rushed to the scene and
also stabbed the victim with their respective knives. The three men simultaneously
stabbed the hapless victim. Odilon and the appellant fled from the scene together,
while Ronnie went after Julian. When he failed to overtake and collar Julian, Ronnie
returned to where Joselito fell and hit him with a hollow block and a broken
bottle. Ronnie then hurriedly left. All the overt acts of Odilon, Ronnie and the
appellant before, during, and after the stabbing incident indubitably show that they
conspired to kill the victim.

The victim died because of multiple stab wounds inflicted by two or more
persons. There is no evidence that before the arrival of Ronnie and the appellant at
the situs criminis, the victim was already dead. It cannot thus be argued that by
the time the appellant and Ronnie joined Odilon in stabbing the victim, the crime
was already consummated.

All things considered, we rule that Ronnie and the appellant conspired with Odilon
to kill the victim; hence, all of them are criminally liable for the latter's death. The
appellant is not merely an accomplice but is a principal by direct participation.

Even assuming that the appellant did not conspire with Ronnie and Odilon to kill the
victim, the appellant is nevertheless criminally liable as a principal by direct
participation. The stab wounds inflicted by him cooperated in bringing about and
accelerated the death of the victim or contributed materially thereto.[34]

The trial court correctly overruled the appellant's defense of alibi. Alibi is a weak, if
not the weakest of defenses in a criminal prosecution, because it is easy to concoct
but hard to disprove. To serve as basis for acquittal, it must be established by
clear and convincing evidence. For it to prosper, the accused must prove not only
that he was absent from the scene of the crime at the time of its commission, but
also that it was physically impossible for him to have been present then.[35] In this
case, the appellant avers that at the time of the stabbing incident, he was resting in
the house of his cousin at 606 Nueve de Pebrero Street as he was suffering from
stomach pain due to his ulcer.[36] But the appellant failed to adduce any medical
certificate that he was suffering from the ailment. Moreover, Elisa positively
identified the appellant as one of the men who repeatedly stabbed the victim. The
appellant's defense of alibi cannot prevail over the positive and straightforward
identification of the appellant as one of the victim's assailants. The appellant
himself admitted that his cousin's house, the place where he was allegedly resting
when the victim was stabbed, was merely ten to fifteen meters away from the
scene of the stabbing. Indeed, the appellant's defense of denial and alibi,
unsubstantiated by clear and convincing evidence, are negative and self-serving
and cannot be given greater evidentiary weight than the positive testimony of
prosecution eyewitness Elisa Rolan.[37]

The appellant's defenses must crumble in the face of evidence that he fled from
the situs criminis and later left his house. The records show that despite being
informed that he was sought after by the authorities as a suspect for the killing of
the victim, the appellant suddenly and inscrutably disappeared from his residence
at Nueve de Pebrero. As early as May 5, 1988, a subpoena for the appellant was
returned unserved because he was "out of town."[38] The appellant's own witness,
Julian Cadion, testified that the appellant had left and was no longer seen at Nueve
de Pebrero after the incident, thus:
Q So, how long did you stay at 606 Nueve de Pebrero after February 5, 1988?
A One week only, sir, and then three weeks after, I returned to Nueve de Pebrero.

Q The whole week after February 5, 1988, was Rene Pilola still living at 606 Nueve de
Pebrero?
A I did not see him anymore, sir.

Q And then three weeks thereafter, you went back to Nueve de Pebrero. Is that what you
were then saying?
A Yes, sir.

Q Now, at the time that you went back to 606 Nueve de Pebrero, was Rene Pilola there?
A I did not see him anymore, sir.[39]
The records show that the appellant knew that he was charged for the stabbing of
the victim. However, instead of surrendering to the police authorities, he adroitly
evaded arrest. The appellant's flight is evidence of guilt and, from the factual
circumstances obtaining in the case at bar, no reason can be deduced from it other
than that he was driven by a strong sense of guilt and admission that he had no
tenable defense.[40]

The Crime Committed by the Appellant

and the Proper Penalty Therefor

The trial court correctly convicted the appellant of murder qualified by

treachery. Abuse of superior strength likewise attended the commission of the
crime. There is treachery when the offender commits any of the crimes against
persons, employing means, methods or forms in the execution thereof which tend
directly and specially to insure its execution, without risk to himself arising from the
defense which the offended party might make. The essence of treachery is the
swift and unexpected attack on the unarmed victim without the slightest
provocation on his part.[41] In this case, the attack on the unarmed victim was
sudden. Odilon, without provocation, suddenly placed his arm around the victim's
neck and forthwith stabbed the latter. The victim had no inkling that he would be
attacked as he was attempting to pacify Edmar and Julian. Ronnie and the
appellant, both also armed with deadly weapons, rushed to the scene and stabbed
the victim, giving no real opportunity for the latter to defend himself. And even as
the victim was already sprawled on the canal, Ronnie bashed his head with a hollow
block. The peacemaker became the victim of violence.

Unquestionably, the nature and location of the wounds showed that the killing was
executed in a treacherous manner, preventing any means of defense on the part of
the victim. As testified to by Dr. Bienvenido MuÙŒoz, the victim was stabbed, not
just once, but eleven times mostly on the chest and the abdominal area. Six of the
stab wounds were fatal, causing damage to the victim's vital internal organs.[42]

The aggravating circumstance of abuse of superior strength is absorbed by

treachery.[43] There is no mitigating circumstance that attended the commission of
the felony. The penalty for murder under Article 248 of the Revised Penal Code
is reclusion perpetua to death. Since no aggravating and mitigating circumstances
attended the commission of the crime, the proper penalty is reclusion perpetua,
conformably to Article 63 of the Revised Penal Code.

Civil Liabilities of the Appellant

The trial court correctly directed the appellant to pay to the heirs of the victim
Joselita Capa the amount of P50,000 as civil indemnity ex delicto, in accord with
current jurisprudence.[44] The said heirs are likewise entitled to moral damages in
the amount of P50,000, also conformably to current jurisprudence.[45] In addition,
the heirs are entitled to exemplary damages in the amount of P25,000.[46]

WHEREFORE, the Decision, dated May 3, 1995, of Branch 164 of the Regional Trial
Court of Pasig City in Criminal Case No. 73615, finding appellant Rene Gayot
Pilola GUILTY beyond reasonable doubt of the crime of murder is AFFIRMED
WITH MODIFICATION. The appellant is hereby directed to pay to the heirs of the
victim Joselito Capa the amount of P50,000 as civil indemnity; the amount of
P50,000 as moral damages; and the amount of P25,000 as exemplary damages.

SO ORDERED.

[ G.R. Nos. 121651-52, August 16, 2000 ]

PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS.
FERNANDO WATIMAR, ACCUSED-APPELLANT.
 DECISION

YNARES-SANTIAGO, J.:

Incestuous rape, such as that committed by a father against his own daughter, is a
dastardly and repulsive crime[1] that has no place in our society. Time and again the
Court has condemned in no unequivocal terms the bestial acts of rape perpetrated
by fathers against their daughters. The case before us now is no different.

On the basis of two (2) sworn criminal complaints executed by the offended party,
accused Fernando Watimar was charged with the crime of Rape in two (2)
Informations. The Information in Criminal Case No. 5513-AF[2] alleges –

That on or about the 26th day of March 1990, in Sitio Tingga, Brgy. Macapsing,
Municipality of Rizal, Province of Nueva Ecija, Philippines, and within the jurisdiction
of this Honorable Court, the above-named accused father of the victim, with lewd
design and at the point of a knife and threat to kill, did then and there, wilfully,
unlawfully and feloniously have carnal knowledge of her (sic) daughter MYRA
WATIMAR.

CONTRARY TO LAW.

The other Information in Criminal Case No. 5514-AF is a virtual reproduction of the
above–quoted information, the only difference being that the rape was committed
on November 28, 1992.[3]

Upon arraignment, accused pleaded not guilty to the charges.[4] Trial thereafter
ensued, after which the Regional Trial Court of Cabanatuan City, Branch 25,
rendered judgment[5] against accused, the dispositive portion of which reads:

WHEREFORE, premises considered, judgment is hereby rendered as follows, viz:

1. In Crim. Case No. 5513-AF, the Court finding the accused Fernando Watimar
guilty beyond reasonable doubt of the crime of RAPE, hereby sentences him to
suffer the penalty of RECLUSION PERPETUA, with the accessory penalty of the law,
to pay the complaining witness Myra Watimar P50,000.00 as moral damages, and
P20,000.00, as exemplary damages, without, however, subsidiary imprisonment in
case of insolvency, and to pay the costs; and

2. In Crim. Case No. 5514-AF, the Court finding the accused Fernando Watimar
guilty beyond reasonable doubt of the crime of RAPE, hereby sentences him to
suffer the penalty of RECLUSION PERPETUA, with the accessory penalty of the law,
to pay the complaining witness Myra Watimar P50,000.00, as moral damages,
without, however, subsidiary imprisonment in case of insolvency, and to pay the
costs.

SO ORDERED.

Accused-appellant interposed this appeal alleging that –

THE TRIAL COURT GRAVELY ERRED IN GIVING FULL CREDENCE TO THE

TESTIMONY OF THE PROSECUTION WITNESS MYRA WATIMAR WHICH IS NOT
SUPPORTED BY ANY MEDICAL FINDINGS WHICH WOULD BE MATERIALLY AND
ESSENTIALLY RELEVANT TO THE CRIME CHARGED.

II

THE TRIAL COURT GRAVELY ERRED IN NOT GIVING ANY CREDENCE WHATSOEVER
TO THE DEFENSE INTERPOSED BY THE ACCUSED-APPELLANT.

III

THE TRIAL COURT GRAVELY ERRED IN CONVICTNG THE ACCUSED-APPELLANT

DESPITE THE FAILURE OF THE PROSECUTION TO PROVE HIS GUILT BEYOND
REASONABLE DOUBT.

The facts as found by the trial court are:

Myra Watimar, 20 years old when she took the witness stand, single, farm helper
and a resident of Macapsing, Rizal, Nueva Ecija, testified that she is the
complainant in the two (2) criminal cases; that she stated that ‘in the evening of
March 26, 1990, she slept together with her brothers and sisters, namely:
Bernardo, Marilou, Leonardo, Ariel and Lea, without her mother who went to the
hospital as her aunt was about to give birth; that her father slept with them in the
same room; that at about 2:00 in the early dawn of March 26, 1990, she felt that
somebody was on top of her and [was] kissing her neck; that she recognized him to
be her father Fernando Watimar, but when she recognized him, her father talked
and a knife was pointed at her neck with an instruction that she should not resist,
otherwise, she will be killed; that despite the threat of her father, she resisted and
told her father not to molest her, because she is his daughter (the witness was
crying); that despite the resistance and plea of the daughter, her father went on
top of her, removed her panty and placed himself on top of the complaining
witness; that he was able to do the bestial act despite the resistance made by
kicking him; that after the father succeeded in sexually molesting her on March 26,
1990, she just kept crying in the corner of their house.

That on November 28, 1992, at 10:00 o’clock in the evening while the complaining
witness was cooking alone, she was surprised when somebody was at her back who
happened to be Fernando Watimar, her father, who suddenly kissed her and pulled
her bringing her to the place where they used to sleep; that she resisted and
wanted to extricate herself from her father by kicking him, but the accused is
stronger than she is; she pleaded to her father not to molest her again but the
father did not heed her plea and he again succeeded in having his sexual desire, on
this point, the testimony of the victim is as follows:

Q- How can he succeed with his desire to sexually abuse you?

A- He forcibly opened my thigh[s] and I was appealing to him that I am his
daughter, yet he did not heed my plea, sir.

Q- Did you offer any resistance when he was trying to separate your thigh[s]?
A- Yes, sir.

Q- How did you resist your father when he was trying to separate your thigh[s]?

Court Interpreter:

The witness is demonstrating that she is placing her two (2) legs together, yet, the
father started to hurt her.

Pros. R. Beltran:

Q- How did he hurt you at that time?

A- He pushed my thigh[s], sir.

Q- Did he push your thigh[s] hardly (sic)?

A- Once, only, sir.

Q- After that what happened?

A- That was the time he succeeded with his lust, sir.[6]

On the other hand, the defense’s version of what transpired can be gleaned from
the testimony of accused-appellant as summarized thus in his brief, to wit:

Fernando Watimar testified that he is 50 years old, married, a thresher by

profession, and a resident of Sitio Tingga, Macapsing, Rizal, Nueva Ecija xxx.

On direct examination, he testified that during the month of March 1990, he was
working as a thresher operator. He testified that he arrived at 1:00 o’clock a.m. on
March 27, 1990 and found his family sleeping. His wife woke up and gave him
something to eat. Later that same day, his wife was no longer at home when he
woke up but his daughter Myra Watimar, the herein complainant was still asleep.
Nothing unusual happened from the time he arrived home until the time he woke
up and readied himself to report for work. He reported for work to Valentin
Santiago at the latter’s residence in Vega, Bongabon, Nueva Ecija, which was about
1 kilometer away from his house. When he inquired from his children as to the
whereabouts of his wife, he was told that the latter had brought the wife of his
brother-in-law to the hospital to give birth. His wife did not leave any messages for
him nor did she ask his permission before leaving the house. Upon his arrival at the
house of Valentin Santiago, the latter instructed him to thresh the palay of a certain
person whose name, due to lapse of time, he could no longer recall. That morning,
he prepared breakfast for himself and did not order his daughter Myra to serve him
because she was a lazy person and did not even wash clothes when told to do so.

In November 1992, particularly on the date when she allegedly raped his daughter
again, he testified that he was working as a truck helper for Valentin Santiago in
Angeles City. On that date, the truck was in Angeles City before proceeding to
Ilocos. There were three of them on that truck, the accused-appellant, the truck
driver and the merchant or biyahero. In Angeles City, they went to the Tibagan
Market to load the truck with watermelons which would be brought to Manila. They
arrived in Angeles City around 11:00 o’clock in the morning after departing from
Bongabon, Nueva Ecija at around 7:00 o’clock in the evening on Nov. 28, 1992. He
left Angeles City at around 7:00 o’ clock in the evening and proceeded to Ilocos
where they again loaded the truck with watermelons. According to him, he was
unable to go home for a period of one month due to his work as truck helper.

He also testified that he could think of no reason why his daughter would charge
him falsely but he knew that the false accusations had been instigated by his
father-in-law who had told him that it was “better that the family name Watimar
will sink rather than the family name Benolias”. According to the accused-appellant,
this was because the one who caused the pregnancy of his daughter was his
brother-in-law Celestino Benolias, Jr., the youngest brother of his wife. He learned
all this when he asked his daughter at one time why she no longer went to her
grandmother’s house and she had answered that she would not do so “as long as
that man is there”, supposedly referring to Celestino Benolias, Jr. He was never in
good terms with his brother-in-law to the extent that the latter had threatened him
at gun point and even mentioned “salvaging” him and throwing him in the river. He
also characterized his brother-in-law as a drug user who, when he was under the
influence, had twice poked a gun at him. Accused-appellant could not remember
when he brought his daughter to the hospital but remembered that he was one of
those who had brought her to the hospital. He no longer stayed at the hospital
because he still had work to do. He also said that he gave a total of P3,000.00 for
his daughter’s hospitalization but that, as he had already been apprehended, he no
longer knew what happened to the money. He only learned about his daughter’s
giving birth the following afternoon. The knowledge of his daughter’s condition
affected him so much that, had he known for certain who caused her pregnancy, he
would have killed that person. He said he did not notice his daughter’s pregnancy.
He asked his daughter who the father of her child was but the latter did not reply.
When he asked his wife, the latter merely insisted that his surname should be given
to the child, a fact he disagreed with. It was out his hands, however, as his sister-
in-law affixed the name Watimar on the birth certificate. He is convinced now that
the father of the child is none other than his brother-in-law Celestino Benolias, Jr.
In reviewing rape cases, the 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 that in the nature of things, only two persons are
usually involved in the crime of rape, the testimony of the complainant should be
scrutinized with great caution; and 3.] the evidence for the prosecution must stand
or fall on its own merit and not be allowed to draw strength from the weakness of
the evidence for the defense.[7] Corollary to the foregoing legal yardsticks is the
dictum that when a victim of rape says that she has been defiled, she says in effect
all that is necessary to show that rape has been inflicted on her and so long as her
testimony meets the test of credibility, the accused may be convicted on the basis
thereof.[8]

The Court has said time and again that in reviewing rape cases, it will be guided by
the settled realities that an accusation for rape can be made with facility. While the
commission of the crime may not be easy to prove, it becomes even more difficult
for the person accused, although innocent, to disprove that he did not commit the
crime. In view of the intrinsic nature of the crime of rape where only two persons
are normally involved, the testimony of the complainant must always be scrutinized
with great caution.[9] Thus, in a prosecution for rape, the complainant’s credibility
becomes the single most important issue.[10]

Guided by these principles, the Court has meticulously scrutinized the testimony of
complaining witness Myra Watimar and ultimately reached the conclusion that the
acts charged did in fact occur. Myra’s testimony on the acts of rape perpetrated
against her by her father is clear and could have only been narrated by a victim
subjected to those sexual assaults. Nowhere is accused-appellant’s bestiality
graphically detailed than in the following narration of the victim:

Q. At about 2:00 in the early morning of that date, was there anything unusual that
happened to you?
A. Yes, sir.

Q. What is that?
A. On that night, sir, I was sleeping and there was somebody on top of me and
kissing my neck.

Q. Were you able to recognize that somebody who was kissing your neck?
A.

Yes, sir.

Q. Who was he?

A. Fernando Watimar, sir.

Q. How did you recognize him?

A. I recognized him, sir, because he talked and a knife was pointed at my neck, and
he instructed me not to resist because, otherwise he will kill me, sir.
Q. What did you do when he pointed that knife on your neck and threatened you?
A. I resisted him, sir, and told him not to do it to me because I am his daughter.

PROSECUTOR R. BELTRAN:

At this point, Your Honor, may I place on record that the witness is crying.

COURT:

Place that on record.

PROSECUTOR R. BELTRAN:

Q. What happened to your plea to your father not to molest you because you are
his daughter?
A. He continued his lust to me, sir.

Q. After that what happened?

A. I was appealing to him, sir, but because of his superior strength he continued
with his lust. I pleaded to him but he continued by removing my panty, sir.

Q. Did he succeed in removing your panty?

A. Yes, sir.

Q. What happened when your panty was removed?

A. He placed his body on top of me, sir.

Q. After placing his body on top of you, what happened next?

A. I continued pleading to him, sir, but he successfully inserted his penis.

Q. How did he succeed in inserting his penis inside your private organ?
A. He forcibly opened my thigh, sir.

Q. When he forcibly opened your thigh, did you not make any resistance or
whatsoever?
A. I resisted, sir, I pulled him, sir, I was kicking but because he is stronger than me
he succeeded.

COURT

Proceed.

PROSECUTOR R. BELTRAN

Q. How many times did you kick him?

A. Many times, sir, I cannot remember anymore how many.
Q. Nobody was awakened in your house at that time?
A. Nobody, sir, because they were sleeping then.

xxxxxxxxx

Q. Was that the only occasion when you were sexually abused by your own father?
A. It was repeated for several times, sir.

Q. Can you remember the dates when you were sexually abused by your father?
A. What I remember, sir, is November 28, 1992 when I gave birth, sir.

Q. Where were you on November 28, 1992 at around 10:00 o’clock in the evening?
A. I was at home, sir.

Q. What were you doing on that date and time?

A. I was then cooking, sir.

xxxxxxxxx

Q. While you were cooking at around 10:00 o’clock in the evening on November 28,
1992, was there anything unusual that transpired?
A. Yes, sir.

Q. What was that unusual thing that happened to you?

A. I was surprised, sir, when somebody was at my back.

Q. Who was that somebody that was at your back?

A. Fernando Watimar, sir.

Q. You are referring to the accused in this case?

A. Yes, sir.

Q. What happened when all of a sudden the accused Fernando Watimar appeared
at your back?
A. He suddenly kissed me, sir, and he pulled me.

Q. Where did he pull you?

A. He pulled me and brought me to the place where we used to sleep, sir.

Q. Did you offer any resistance when your father pulled you at that place where you
used to sleep?
A. Yes, sir.

Q. How did you resist him?

A. I resisted, sir, I wanted to extricate myself, sir.
Q. How did you try to extricate yourself from the hold of your father?
A. I was kicking him, sir, but he is stronger than me, sir.

Q. So, what happened after that?

A. He was able to let me down to the place where we used to sleep, sir.

Q. After that what happened?

A. I was then pleading to him not to do it again to me, sir.

Q. Did he heed to your plea?

A. No, sir.

Q. So what happened after that?

A. He again succeeded with his desire, sir.

Q. How can he succeed with his desire to sexually abuse you?

A. He forcibly opened my thigh and I was appealing to him that I am his daughter,
yet, he did not heed my plea, sir.

Q. Did you offer any resistance when he was trying to separate your thigh?
A. Yes, sir.

Q. How did you resist your father when he was trying to separate your thigh?
A. I was struggling, sir.

Q. How would you describe your struggling (pagkukumusot) with your father while
he was opening your thigh?

COURT INTERPRETER

The witness is demonstrating that she is placing her two (2) legs together, yet the
father started to hurt her.

PROS. BELTRAN

Q. How did he hurt you at that time?

A. He pushed my thigh, sir.

Q. Did he push your thigh hardly?

A. Yes, Sir.

Q. How many times did he push your thigh?

A. Once only, sir.

Q. After that what happened?

A. That was the time he succeeded with his lust, sir.
Accused-appellant insists that the foregoing narration of the victim “deserves scant
consideration as it is tainted with factual infirmities and contrary to human
experience and conduct.”[11] To buttress his claim of innocence, accused-appellant
first adverts to the supposed impossibility of consummating the crime in a room
measuring “a mere two meters in area” where the victim was sleeping beside her
five other brothers and sisters. According to him: “It boggles the mind and
confounds reason to accept the proposition that the accused-appellant was able to
consummate the act despite the fact that she attempted to resist and in fact caused
some commotion in her determined efforts to extricate herself from her father and
none of her brothers and sisters were alerted to the event then transpiring.”[12]

The argument is tenuous.

The possibility of rape is not negated by the presence of even the whole family of
the accused inside the same room with the likelihood of being discovered. Indeed,
the Court pointed out only recently in People v. Arteche Antonio y Payagan[13] that
“for rape to be committed, it is not necessary for the place to be ideal, or the
weather to be fine, for rapists bear no respect for locale and time when they carry
out their evil deed.[14] Rape may be committed even when the rapist and the victim
are not alone, or while the rapist’s spouse was asleep, or in a small room where
other family members also slept, as in the instant case. The presence of people
nearby does not deter rapists from committing their odious act.”[15] Verily –

…The court has time and again held that ‘the evil in man has no conscience. The
beast in him bears no respect for time and place, driving him to commit rape
anywhere – even in places where people congregate such as parks, along the road
side, within school premises, and inside a house where there are other
occupants.’[16] ‘Rape does not necessarily have to be committed in an isolated place
and can in fact be committed in places which to many would appear to be unlikely
and high-risk venues for sexual advances.’[17] Indeed, no one would think that rape
would happen in a public place like the comfort room of a movie house and in broad
daylight.[18]

Suffice it to state in this regard that the argument that rape cannot be committed in
a house where other members of the family reside or may be found is a contention
that has long been rejected by the Court, rape being no respecter of time and
place.[19]

Accused-appellant further contends that the victim did not do everything in her
power to prevent the assault on her virtue. He argues that the complaining witness
admitted that although accused-appellant initially threatened her at knife point,
both his hands were free when he finally committed the act. Accused-appellant
states that it is inexplicable why she did not seize this opportunity to make good
her efforts.[20]

The contention fails to persuade.

The law does not impose upon a rape victim the burden of proving
resistance,[21] especially where there is intimidation.[22] In fact, physical resistance
need not be established in rape when intimidation is exercised upon the victim and
she submits herself against her will to the rapist’s lust because of fear for her life or
personal safety.[23] Indeed, it has been said that in rape cases, it is not necessary
that the victim should have resisted unto death[24] or sustained injuries in the hands
of the rapist.[25] It suffices that intercourse takes place against her will or that she
yields because of a genuine apprehension of great harm.[26] In incestuous rape,
actual force and intimidation is not even necessary.[27] The reason for this is that in
a rape committed by a father against his own daughter, the moral ascendancy of
the former over the latter substitutes for violence and intimidation.[28]

Accused-appellant next claims that the complete absence of any medical finding or
examination which would directly contribute to establish that rape was indeed
committed is a point too glaring to be ignored in the light of the fact that the
complainant allowed more than two (2) years to pass before filing the case.[29]

The argument is likewise unpersuasive.

A medical examination is not indispensable to the prosecution of rape as long as the

evidence on hand convinces the court that conviction for rape is proper.[30] As
recently pointed out by the Court in People v. Wilson Dreu @ “Adang Dreu”[31] -

…Although the results of a medical examination may be considered strong evidence

to prove that the victim was raped, such evidence is not indispensable in
establishing accused-appellant’s guilt or innocence. In People v. Docena we
stated:[32]

That there was no medical examination report presented, sign of resistance during
the actual copulation, or proof of violence committed against MARGIE does not
detract from our conclusion that she was raped. A medical examination is not
indispensable in a prosecution for rape. Medical findings or proof of injuries,
virginity, or an allegation of the exact time and date of the commission of the crime
are not essential in a prosecution for rape…

… [The defense’s contention is not bolstered by the victim’s] failure to put up a

strong resistance or shout for help, nor by the fact that there was no sign of force
or intimidation, which should be viewed in the context of the victim’s perception
and judgment at the time of the commission of the offense. It is subjective, thus,
lack of physical resistance cannot be considered consent.

Accused-appellant further points out that his characterization as being a good

father and husband by his wife, Isabelita Watimar, echoed by his employer,
Valentin Santiago as well as his father-in-law, Celestino Benolias, Sr., juxtaposed
with complainant’s characterization of him as being temperamental and unduly
harsh, would at the very least generate reasonable doubt as to his being the
perpetrator of the acts charged against him.[33]
This claim deserves short shrift.

Suffice it to state that no young and decent woman would publicly admit that she
was ravished and her virtue defiled unless such was true for it would be instinctive
for her to protect her honor.[34] A daughter would not concoct a story of defloration
against her father, accuse him of so grave a crime as rape, allow an examination of
her private parts, submit herself to public humiliation and scrutiny via an open trial,
if she were not truly aggrieved or her sordid tale was not true and her sole
motivation was not to have the culprit apprehended and punished.[35] In short, a
teenage unmarried lass would not file a rape case against anybody, much less her
own father, if it were not true.[36]

Accused-appellant, lastly, faults the complainant for tarrying for three (3) long
years before telling her mother about his nefarious conduct despite ‘countless’
opportunities to seek the aid of her mother and other relatives particularly her
grandfather who lived a mere ten (10) meters from her house. He insists that even
assuming arguendo that the initial shock was so great as to deprive her of the
facility to report these misdeeds to anyone, it is stretching the realm of logic and
reason to accept her belated claims at face-value three (3) years after the
operative fact giving rise to her trauma.[37]

The contention deserves scant consideration.

As aptly stated in People v. Arthur De Leon y Lagmay @ “Joel”:[38] “This Court has
consistently held that delay in reporting rape incidents in the face of physical
violence cannot be taken against the victim. A rape victim’s action is oftentimes
overwhelmed by fear rather than reason. It is fear, springing from the initial rape,
that the perpetrator hopes to build up a climate of extreme psychological terror,
which would, he hopes, numb his victim to silence and submissiveness.”[39] While
indeed the complainant may have tarried in reporting her defilement, the three-
year hiatus in reporting the crimes adverted to by accused-appellant will not
extricate him from his predicament. This is especially so considering the Court’s
recent pronouncement in People v. Conrado Cabana @ Randy,[40] which states that
–

... The delay and initial reluctance of a rape victim to make public the assault on
her virtue is neither unknown or uncommon.[41] As held in the case of People vs.
Malagar:[42]

Vacillation in the filing of [a] complaint by [a] rape victim is not an uncommon
phenomenon. This crime is normally accompanied by the rapist’s threat on the
victim’s life, and the fear can last for quite a while. There is also the natural
reluctance of a woman to admit her sullied chastity, accepting thereby all the
stigma it leaves, and then to expose herself to morbid curiosity of the public whom
she may likely perceive rightly or wrongly, to be more interested in the prurient
details of the ravishment than in her vindication and the punishment of the rapist.
In People vs. Coloma[43] we have even considered an 8-year delay in reporting the
long history of rape by the victim’s father as understandable and so not enough to
render incredible the complaint of a 13-year old daughter.

Zorayda was only sixteen years old when she was subjected to the lustful desires of
the accused; thus, she was understandably cowed into silence as the accused-
appellant warned her not to tell her mother about the incident. No woman
especially one of tender age, practically only a girl, would concoct a story of
defloration, allow an examination of her private parts and thereafter expose herself
to a public trial if she were not motivated solely by the desire to have the culprit
apprehended and punished[44] to avenge her honor[45] and to condemn a grave
injustice to her.[46]

Accused-appellant merely raised denial and alibi as his defense. The Court has
consistently held in previous cases too numerous to cite that for alibi to prosper, it
must be proven that during the commission of the crime, the accused was in
another place and that it was physically impossible for him to be at the locus
criminis. Alibi and denial are inherently weak defenses and unless supported by
clear and convincing evidence, the same cannot prevail over the positive
declarations of the victim who, in a simple and straightforward manner,
convincingly identified accused-appellant as the defiler of her chastity. Succinctly
stated, the positive assertions of accused-appellant’s daughter that he raped her is
entitled to greater weight.[47] While denial and alibi are legitimate defenses in rape
cases, bare assertions to this effect cannot overcome the categorical testimony of
the victim.[48]

All told, we find no reason to reverse the ruling of the trial court. The acts of rape
are rendered all the more heinous and reprehensible in this case inasmuch as the
perpetrator is the father of the victim. People v. Lao[49] scathingly condemned this
kind of criminal thus:

Such a “father” deserves no place in society, and more especially in a country like
the Philippines whose fundamental law considers the family as a basic autonomous
social institution and the foundation of the nation, recognizes the sanctity of family
life and mandates the State to defend the right of children to special protection
from all forms of neglect, abuse, cruelty, exploitation and other conditions
prejudicial to their development.

The two acts complained of in this case were committed in 1990 and 1992,
respectively, at which time Article 335 of the Revised Penal Code, as amended,
provided:

ART. 335. When and how rape committed. – Rape is committed by having carnal
knowledge of a woman under any of the following circumstances:

1. By using force and intimidation;

2. When the woman is deprived of reason or otherwise unconscious; and

3. When the woman is under twelve years of age, even though neither of the
circumstances mentioned in the two next preceding paragraphs shall be present.

The crime of rape shall be punished by reclusion perpetua.

Whenever the crime of rape is committed with the use of a deadly weapon or by
two or more persons, the penalty shall be reclusion perpetua to death.

xxxxxxxxx

Considering that a deadly weapon was employed in the commission of the offenses
charged in this case, the imposable penalty ranges from reclusion perpetua to
death. The use of the bladed weapon already qualified the acts of rape.[50]

A circumspect scrutiny of the record shows that none of the aggravating

circumstances enumerated in Article 14 of the Revised Penal Code was alleged and
proven by the prosecution. Where there is no aggravating circumstance proved in
the commission of the offense, the lesser penalty shall be applied.[51] While the
employment of the knife was sufficiently established by the prosecution, such clear
showing can not justify the imposition of the death penalty in the absence of an
aggravating circumstance. Furthermore, at the time of commission of the crimes in
this case, the imposition of the death penalty was suspended.[52] Hence, the trial
court correctly sentenced accused-appellant to suffer the penalty of reclusion
perpetua.[53]

The Court notes that the court a quo, while awarding P50,000.00 as moral damages
in each count of rape, did not award any indemnity ex delicto which current
jurisprudence has fixed at P50,000.00.[54] It needs be stressed in this regard that
civil indemnity is separate and distinct from the award of moral damages which is
automatically granted in rape cases.[55] Pursuant to controlling case law, the award
of P50,000.00 ex delicto is mandatory upon the finding of the fact of rape.[56] Moral
damages are additionally awarded without need of pleading or proof of the basis
thereof.[57] This is because it is recognized that the victim’s injury is concomitant
with and necessarily resulting from the odiousness of the crime to warrant per se
the award of moral damages.[58]

The anguish and the pain a victim had to endure are evident.[59] The Court need not
belabor the fact that the offended party in a rape case is victim many times over. In
our culture which puts a premium on the virtue of purity or virginity, rape
stigmatizes the victim more than the perpetrator.[60]

Considering that the offender is the father of the victim, we agree with the trial
court that accused-appellant should likewise pay the victim exemplary
damages.[61] Accused-appellant should, therefore, be liable for exemplary damages
of P25,000.00 for each count of rape.[62]

WHEREFORE, in view of all the foregoing, the Decision appealed from, finding
accused-appellant guilty beyond reasonable doubt of two counts of rape and
sentencing him to reclusion perpetua for each crime, is AFFIRMED with the
MODIFICATIONS that the accused-appellant is ordered to pay the victim Myra
Watimar for each count of rape the amounts of P50,000.00 by way of civil
indemnity ex delicto, P50,000.00 as moral damages and P25,000.00 by way of
exemplary damages.

SO ORDERED.

[ G.R. Nos. 100382-100385, March 19, 1997 ]

THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS.
MARIO TABACO, ACCUSED-APPELLANT.

DECISION

HERMOSISIMA, JR., J.:

In four related informations, Mario Tabaco was charged with four counts of Murder
for shooting to death on March 22, 1987 Capt. Oscar Tabulog (Criminal Case No.
10-259), Ex-Mayor Jorge Arreola (Criminal Case No. 10-270), Felicito Rigunan
(Criminal Case No. 10-284) and Pat. Romeo Regunton (Criminal Case No. 10-317).
Except for the names of the victims, the informations in these four (4) cases
identically read:

"That on or about March 22, 1987, in the Municipality of Aparri, Province of

Cagayan, and within the jurisdiction of this Honorable Court, the said accused
Mario Tabaco, armed with a gun, with intent to kill, with evident premeditation and
with treachery, did then and there wilfully, unlawfully and feloniously assault,
attack and shoot one [name], inflicting upon him several wounds which caused his
death.

Contrary to Law."[1]

In Criminal Case No. 10-316, accused was charged in the following information with
the complex crime of Homicide and Frustrated Homicide for shooting to death Jorge
Siriban, Jr. and the wounding of Sgt. Benito Raquepo:

"That on or about March 22, 1987, in the municipality of Aparri, province of

Cagayan, and within the jurisdiction of this Honorable Court, the said accused,
Mario Tabaco, armed with a gun, with intent to kill, did then and there wilfully,
unlawfully and feloniously assault, attack and shoot Jorge Siriban, Jr., and S/Sgt.
Benito Raquepo, inflicting upon them wounds on their bodies, which wounds
sustained by Jorge Siriban, Jr., caused his death.
That the accused had performed all the acts of execution (with respect to the victim
Sgt. Benito Raquepo; which would have produced the crime of Homicide as a
consequence but which nevertheless, did not produce it by reason of causes
independent of his own will."[2]
All cases were consolidated before Branch 10 of the Regional Trial Court of Aparri,
Cagayan.

The mass of evidence for the prosecution, as found by the trial court, is as follows:

"In the evening of March 22, 1987, the 17th PC stationed at Aparri, Cagayan, under
then Lt. James Andres Melad, sponsored a cock derby, under the name of Jose
Ting, at the Octagon Cockpit Arena located at Aparri, Cagayan.

This being so, peace officers in uniform with long firearms were assigned as guards
to maintain peace and order at the cockpit arena namely: (1) Sgt. Benito Raquepo;
(2) CIS Roque P. Datugan, both from the 117th PC and (3) Pat. Andles Semana,
INP, Aparri, Cagayan. Accused Mario Tabaco who was in civilian clothes claims to
have been also assigned by his Commanding Officer of 117th PC, to verify the
presence of NPAs and assist in the protection of VIPs in the cockpit arena, bringing
with him his M-14 issued firearm.

Other peace officers who came to participate were: (1) Policeman Mariano Retreta
of INP, Buguey, Cagayan, who arrived with the deceased Jorge Siriban and Licerio
Antiporda, Jr., Licerio Antiporda II; (2) Sgt. Rogelio Ferrer of 117th PC Company;
(3) Policeman Romeo Regunton (deceased) who was also armed, arrived in
company with the deceased Ex-Mayor Arreola; (4) Fireman Rogelio Guimmayen,
INP Buguey; (5) Pat. Barba; and (6) CIC PC Paragas.

At about nine (9) o'clock in the evening of same date, the group of the late Mayor
Jorge Arreola of Buguey, Cagayan, arrived at the cockpit arena. His companions
were (1) Antonio Villasin; (2) Rosario Peneyra; (3) victim Lorclo Pita, Jr. and/or five
(5) of them including the Mayor. They occupied and were (4th row) north western
part cockpit-gate. Others seated with the Mayor were: (1) the late Capt. Oscar
Tabulog; (2) the late Pat. Romeo Regunton, who was at the back of the mayor; (3)
the late Felicito Rigunan. The accused CIC Tabaco was seated on the arm of the
bench situated at the lower portion of the arena about more than three (3) meters
away, (infront and a little bit in the west), from the place where the late Mayor and
his group were seated (at the 4th row of seats upper portion). During the ocular
inspection conducted, the Court noticed the distance to be more than three (3)
meters, and/or probably 4-5 meters.

At about ten(10) o'clock 1987, while the accused Mario Tabaco was seated as
described above, he suddenly without warning or provocation, shot the late mayor
Jorge Arreola, with his M-14 rifle, followed by several successive burst of gunfire,
resulting in the shooting to death of the late Mayor Arreola, Capt. Oscar Tabulog,
Felicito Rigunan and Pat. Romeo Regunton, although the latter managed to run
passing through the western gate near the gaffers cage but was chased by
accused Tabaco. Regunton was later found dead inside the canteen of Mrs. Amparo
Go inside the Octagon cockpit arena.

Pat. Mariano Retreta of INP Buguey, who was then at the Co's canteen, saw the
accused going out rushing from the cockpit arena, at a distance of one meter. Pat.
Retreta is a relative and neighbor of the accused Tabaco in Buguey, Cagayan. He
tried to pacify Tabaco telling him 'what is that happened again Mario.' Meanwhile,
Sgt. Benito Raquepo of 117th PC, and one of those assigned to maintain peace and
order at the Octagon cockpit arena, who was at the canteen taking snacks, heard
five (5) successive gun reports coming from inside the cockpit arena. In a little
while, he saw the accused Tabaco coming from inside the cockpit arena. Raquepo
advised Tabaco — 'Mario relax ka lang' — 'Mario keep calm.' They stood face to face
holding their rifles and when Tabaco pointed his gun towards Sgt. Raquepo, Pat.
Retreta grappled for the possession of the gun to disarm Tabaco, and in the
process, the gun went off hitting Sgt. Raquepo and also the late Jorge Siriban who
happened to be near Raquepo. Siriban died on the spot while Raquepo survived his
wounds on his legs due to adequate medical treatment.

There were other persons injured that evening namely: (1) Antonio Chan — injured
on his right foot; (2) Salvador Berbano — injured on his right forearm and on his
right abdomen and (3) Rosario Peneyra on his face and right shoulder. But, the
three, did not file their complaints."[3]
Upon the other hand, the evidence for the defense as stated in the Brief for the
Accused-appellant is as follows:

"Ordered by his commanding officer in the 117th PC Company to assist in the

maintenance of peace and order at the Octagon Cockpit Arena located at Talungan,
Aparri, Cagayan on March 22, 1987, accused Mario Tabaco with his officially issued
M-14 rifle and with the basic load of ammunition went to the Octagon Cockpit arena
on March 22, 1987 in compliance to the orders of a superior officer arriving thereat
at about 12:00 o'clock noon, more or less. He directly went inside the cockpit arena
to make some observations and found out that there were several persons inside
the said cockpit who were in possession of firearms, some short and some long,
and were seen in different places and/or corners of the cockpit. Accused did not
bother to verify as to why the said persons were allowed to carry their firearms
because of his impressions that if they did not have the authority, the guards of the
main gate of the cockpit would surely have confiscated the same from them. It was
his belief then that they may have come from other agencies of the government,
assigned to help in the maintenance of peace and order in the cockpit, Accused
thus seated himself at the lowermost seat (first step) of the slanted bleachers of
the Octagon Cockpit arena on March 22, 1987.
At about 9:00 o'clock that very night of March 22, 1987, while accused was seated
at the lowermost seat of the slanted bleachers of the Octagon Cockpit arena, he
heard a gun report fired atop his head. Having been officially assigned to help in
the maintenance of peace and order in the cockpit and that his presence must be
known, his immediate reaction upon hearing the gun report was to fire a warning
shot in the air and directed to the ceiling and/or roof of the Octagon cockpit arena.
After firing a warning shot, his warning was answered by burst of gun fire coming
from different directions inside the cockpit arena, for which reason, he forced to
leave and rush outside, holding his M-14 rifle with the muzzle pointed downwards.
As he (accused) rushed towards the main gate of the cockpit arena, Mariano
Retreta and Sgt. Benito Raquepo saw him and who told him, (accused) to relax
lang. Accused testified that when Mariano Retreta and Sgt. Benito Raquepo told him
to relax lang, he all the time thought that the gun reports fired inside the cockpit
arena was nothing to said persons. Accused however, insisted to go out, but in so
doing, Mariano Retreta pressed the gun which he was holding downwards and
grabbed said gun from accused. As the gun was pressed by Mariano Retreta, said
gun went off, hitting Sgt. Benito Raquepo and the death of Jorge Siriban, Jr. That
because of such incident, accused had to run away, out of fear to Sgt. Benito
Raquepo and the family of Jorge Siriban who may lay the blame on him. The
following morning, accused surrendered to the police authorities of Lallo, Cagayan,
who happened to pass by, not on account of the death of Ex-Mayor Jorge Arreola,
Capt. Oscar Tabulog, Felicito Rigunan and Oscar Regunton which he did not know at
the time he surrendered, but on account of the death of Jorge Siriban, Jr. and the
injury sustained by Sgt. Benito Raquepo."[4]

After trial, the court a quo, in a joint decision dated January 14, 1991, found
accused-appellant guilty as charged on all counts. In giving credence to the version
of the prosecution over that of accused-appellant, it found that:

"From the evidence adduced, it is easily discernible that the prosecution and
defense cannot agree on what actually transpired that night of March 22, 1987, at
the Octagon Cockpit Arena, Aparri, Cagayan leading to the shooting to death of
subject victims. For, while the prosecution maintains that it was the accused
Mario Tabaco who shot the victims, the defense insists that he is not the assailant,
but somebody else or others, since the accused merely fired a warning shot
upwards the roof of the cockpit arena.

In fine, the Court is called upon to resolve the issue of credibility versions. 'Where
there are directly conflicting versions of the same incident, the Court, in its search
for the truth, perforce has to look for some facts and circumstances which can be
used as valuable tools in evaluating the probability or improbability of a testimony
for after all, the element of probability is always involved in weighing testimonial
evidence. (Carolina Industries, Inc. vs. CMS Stock Brokerage, Inc., et al., L-46908,
May 17, 1980, 97 SCRA 734; Lacsan vs. Court of Appeals, et al., L-46485,
November 21, 1979, 94 SCRA 461, both citing the case of People vs. Boholst
Caballero, L-2349, November 25, 1974, 61 SCRA 180).

Towards this end, the prosecution presented three (3) eyewitnesses, namely:
Antonio Villasin, Rosario Peneyra and Fireman Rogelio Guimmayen in the shooting
to death of the deceased victims, Ex-Mayor Jorge Arreola, Capt. Oscar Tabulog,
Romeo Regunton and Felicito Rigunan. Also, the prosecution presented Sgt. Benito
Raquepo, Pat. Mariano Retreta and PC Sgt. Rogelio Ferrer, and three (3)
eyewitnesses in the shooting to death of Jorge Siriban and the wounding of Sgt.
Raquepo. So too, the prosecution presented PC Sgt. Antonio Domingo, Pat. Andres
Semana, PC Sgt. Jose Algeria and Pat. Merlin Bautista, as corroborative witnesses
in both situational cases/incidents. As well stated in the above findings of facts,
prosecution witnesses Antonio Villasin and Rosario Peneyra actually saw the
accused Mario Tabaco stood up from his seat at the lower front row and in port arm
position directed his M-14 rifle towards the place of the late Mayor Arreola, and his
group at the 4th row upper portion of the bleachers and fired three successive
automatic gun shots that felled Mayor Jorge Arreola, Capt. Oscar Tabulog, Pat.
Romeo Regunton and one Felicito Rigunan. This was corroborated by prosecution
witness Fireman Rogelio Guimmayen who was then ten (10) meters away from the
accused, which was not far, considering that the cockpit arena was well-lighted at
that time.

Not only that, immediately after the gun burst of automatic fire, the accused was
seen coming out rushing from inside the cockpit arena by INP Pat. Mariano Retreta
and PC Sgt. Raquepo, the former being a relative and neighbor, pacified
accused Tabaco, telling — 'what is that happened again Mario,' while the latter told
him — 'Mario relax ka lang keep calm.' After which Mariano Retreta grappled for the
possession of the gun assisted by PC Sgt. Rogelio Ferrer when Tabaco refused to
stop. Sgt. Ferrer got the gun M-14 and surrendered it to his Commanding Officer,
as corroborated by Sgt. Antonio Domingo, while in the process of disarming the
accused Mario Tabaco, when the gun went of, hitting the deceased victim Jorge
Siriban and Sgt. Raquepo."[5]

The accused admitted that the M-14 rifle which he brought with him to the cockpit
arena was heavily loaded, but when the gun was taken from his possession by Pat.
Retreta and PC Sgt. Ferrer, the gun's magazine was already empty.

The court a quo said further:

ATTY. VILLENA:

Q: When you took that M-14 from the accused, do you remember if it had a
magazine that time?
A: Yes, sir with magazine.

Q: Do you have the magazine now?

A: It is with 117th PC Company, sir.

Q: After taking that M-14 from the accused, did you examine the rifle?
A: Yes, sir, I examined it.

Q: Did you examine the magazine of that rifle?

A: Yes, sir.

Q: Did you examine if there are live bullets?

A: No live bullets, sir. "(TSN, direct examination, Sgt. Ferrer, pp. 44-45, March
26, 1990 session, stenographer L. Tamayo).

Further, Sgt. Ferrer continued:

"PROSECUTOR ATAL:

Q: You likewise mentioned in your direct examination that when you surrendered
this gun, M-14, and this magazine, there were no live ammunitions in the
magazine?
A: There were two remaining bullets, sir.

Q: How many bullets in all?

A: Twenty, sir.

Q: You said you heard first seven gun reports?

A: Yes, sir I heard seven gun reports. (TSN, continuation of direct examination,
Sgt. Ferrer, May 14, 1990 session, Stenographer L. Tamayo).

MORE, there is evidence that empty/spent shells of bullets were found inside the
cockpit arena (Exh. 'R' & 'R-1', pp. 157-158, record).

ATTY. ARIOLA:

Q: Showing to you Exh. 'R', do you know whose picture is this?

A: Picture of spent shells.

Q: How about Exh. 'R-1', do you know what is this?

A: The same, sir spent shells. (TSN, PC/CIS Sgt. Investigator Jose Algeria, p. 29,
Oct. 1, 1990 session, Stenographer L. Tamayo).

Finally, another circumstance which maybe considered as adverse against the

accused, is the fact that he was really arrested and not that he voluntarily
surrendered as appearing in the INP Lallo Police Blotter, as testified to by Pat. Melin
Bautista (Exh. 'S', p. 188, record).

Furthermore, it appears that the same accused Mario Tabaco, has still a pending
case for murder before Branch 6, of this Court. (Exh. 'T', p. 187, record).

The Court is impressed with the testimonies of the three prosecution eyewitnesses
namely: Antonio Villasin, Rosario Peneyra and INP Fireman Rogelio Guimmayen
who narrated their versions of the incident with ring of truth, which are both clear
and convincing, in regard to the shooting to death by accused Mario Tabaco of the
deceased victims Ex-Mayor Jorge Arreola (Crim. Case No. 10-270), Capt. Oscar
Tabulog (Crim. Case No. 1259), Pat Romeo Regunton (Crim. Case No. 10-317) and
the late Felicito Rigunan (Crim. Case No. 10-284).

Such positive testimonies were corroborated by the testimonies of PC Sgt.

Raquepo, PC Sgt. Ferrer and Pat. Mariano Retreta, who saw the accused rushing
outside the cockpit arena holding his M-14 rifle, immediately after the burst of
successive and automatic gunfire inside the cockpit arena. Although they have not
seen the accused shoot the four victims (Arreola, Tabulog, Rigunan and Regunton),
yet their corroborative testimonies constitute sufficient combination of all
circumstances, so as to produce a conviction of guilt beyond reasonable doubt.
(People vs. Pimentel, 147 SCRA 251; People vs. Trinidad, 162 SCRA 714), even as
such circumstances proved reasonable leads to the conclusion pointing to the
accused Tabaco, to the exclusion of all others, as the author of the crime.
(People vs. Magallanes, 147 SCRA 92; People vs. Macatana, 161 SCRA 235). And,
in the face of all these circumstances, the burden of proof to establish his innocence
LIES on the accused, as the ONUS PROBANDI from that moment is now shifted to
the accused. (Dulpo vs. Sandiganbayan, 150 SCRA 138). A resort to circumstantial
evidence is in the very nature of things, a necessity, and as crimes are usually
committed in secret and under conditions where concealment is highly probable,
and to require direct testimony would in many cases result in freeing criminals and
would deny the proper protection of society. (People vs. ROA, 167 SCRA 116).

As to the death of Jorge Siriban (Crim. Case No. 10-316) and the wounding of Sgt.
Raquepo, there is no adventure of doubt, that accused Mario Tabaco was the author
of the crime charged and thus be held responsible for the same. The evidence
adduced in this case is overwhelming, coming no less from accused's brothers PC
personnel, who, aside from their direct testimonies, are entitled to the settled rule
that they have regularly performed their official duty. (Section 5[M], Rule 131,
Revised Rules of Court).

Accordingly, the Court is not impressed with the defense put up by the accused,
even as it does not inspire confidence, hence, the same deserves no credence.

The accused contends that he merely fired his gun up towards the roof, and that he
could have not shot the four (4) deceased victims with the group of Ex-Mayor
Arreola considering the elevation of the 4th step or row in the upper bleachers of
the cockpit arena, in relation to where the accused was, the front row, in much
lower elevation. The accused further contends that he could not have shot afore-
said victims, as maybe gleaned from the testimony of Dr. Rivera, especially to
wound No. 2, inflicted upon the body of the late Mayor Arreola.

The Court believes otherwise. In the first place, the three (3) eyewitnesses Antonio
Villasin, Rosario Peneyra and INP Fireman Rogelio Guimmayen, testified that they
saw the accused stood up from his seat and directed his gun M-14 towards the
group of Ex-Mayor Arreola who were then at the upper 4th row of cemented seats
at the bleachers. They could have been inaccurate of the distance of meters, as it
could have been around 5 meters from where the accused stood up, which is a little
bit west of the group of Ex-Mayor Arreola, who were then facing south, face to face
with the accused. This is true and the same will jibe with the findings of Dr. Rivera,
where the gun shot wounds inflicted upon the body of the late Capt. Tabulog, were
on the left portion of his forehead front to back (Wound No. 1); Wound No. 2, in his
left temple; Wound No. 3, below his right clavicle of his right shoulder and Wound
No. 4, on his left thigh downward.

In the case of the late Mayor Arreola his wounds are: Wound No. 1, is on the left
side of his head above the hairline; Wound No. 2, right base of his neck and exited
at the upper shoulder base through and through. Wound No. 3, was on his left
lower abdomen and his lower back as exit for wound Nos. 1 and 2, the relative
position of the assailant and the victim is face to face, so with Wound No. 3. For
wound No. 2, the point of entry is higher than the point of exit, but there is a
possibility that the victim Arreola, probably bent forward and the bullet ricocheted.

It must be noted that the seats in the upper bleachers where the group of the late
Mayor stayed were all cemented including their back rests and the bullets fired from
the gun of the accused must have rebounded or deflected from surface to surface,
on the cemented back rests and seats hitting wound No. 2, on the body of the
Mayor and the bodies of Romeo Regunton and Felicito Rigunan. The bullets
RICOCHETED, at the place where the group of the Mayor stayed. Anent the
cemented railguard dividing the lower and upper bleachers, the same is not too
high so as to obviate the possibility of hitting the group of the late Mayor Arreola,
especially as in this case, when the accused stood up from his seat and fired at his
victims. Witness Rosario Peneyra testified that his wound on his face and right
abdomen must have been caused by the debris of the said cemented railguard
which was hit by the bullets.

In the case of the death of Jorge Siriban, there is not much dispute as the evidence
adduced is overwhelming and even the defense admits that Siriban died due to
gunshot wounds — inflicted upon him during the grappling of the subject gun (Exh.
'K').

The Court believes in the reliability and intrinsic credibility of the prosecution
witnesses, there being no competent evidence presented for them to falsely testify
against the accused. There is no issue of motive, as the accused was clearly and
positively identified.

All told, the Court believes and so holds that herein accused Mario Tabaco is the
author/culprit in the shooting to death of the deceased victims, Jorge Arreola, Oscar
Tabulog, Felicito Rigunan and Romeo Regunton, as well as the deceased Jorge
Siriban and the wounding of Benito Raquepo."[6]

The dispositive part of the decision reads:

"WHEREFORE, prescinding from the foregoing, and fortified by the balm of clear
judicial conscience, the Court finds the accused Mario Tabaco guilty beyond
reasonable doubt of all the crimes charged against him:

1. In Criminal Cases Nos. (a) 10-259 (Oscar Tabulog); (b) No. 10-270 (Jorge
Arreola); (c) 10-284 (Felicito Rigunan); and (d) 10-317 (Romeo Regunton),
involving four (4) murder victims, but declared to have been prosecuted in one
Information; the same being a complex crime under Art. 248, Revised Penal Code,
the accused Mario Tabaco is sentenced to a single penalty of RECLUSION
PERPETUA, in its maximum period, with all the accessory penalties provided for by
law, and to pay the heirs of the deceased victims — Oscar Tabulog, Felicito Rigunan
and Romeo Regunton, the amount of P50,000.00 each for a total of P150,00.00
subject to the lien herein imposed for payment of the appropriate docket fees if
collected, without subsidiary imprisonment in case of insolvency. However, in
Criminal Case No. 10-270, the accused Mario Tabaco is further ordered to pay the
heirs of the late Mayor Jorge Arreola, the grand total amount of P633,500.00, by
way of total civil liability, subject to the lien herein imposed for payment of the
appropriate docket fees, in case of successful collection, both without subsidiary
imprisonment in case insolvency.

2. In Criminal Case No. 10-316 for Homicide with Frustrated Homicide, the
accused Mario Tabaco is sentenced to suffer an indeterminate penalty ranging from,
ten (10) years and one(1) day Prision Mayor as MINIMUM, to Seventeen (17) years,
Four(4) months, one (1) day of RECLUSION TEMPORAL as MAXIMUM, and to pay
the heirs of the deceased Jorge Siriban, the amount of P50,000.00, by way of death
indemnity, plus P30,000.00 to Sgt. Benito Raquepo, by way of medical expenses
incurred, subject to the lien herein imposed for payment of the appropriate docket
fees in case of successful collection; both without subsidiary imprisonment in case
of insolvency.
3. The M-14 rifle (Exh. 'K' and 'K-2') the corpus delicti, presently deposited
with 117th PC Company, Aparri, Cagayan, is hereby ordered forfeited in favor of
the government; Perforce, the Commanding Officer of the 117th PC, Aparri,
Cagayan, is peremptorily ordered to deposit to the Acting Branch Clerk of Court of
this court, the said M-14 rifle with magazines, for proper disposition in accordance
with law and the rules.

4. The accused to pay the costs.

5. In the service hereof, the accused shall be entitled to the full length of
time, he underwent preventive imprisonment (March 23, 1987), provided he
voluntarily agreed in writing to abide by the same disciplinary rules imposed upon
convicted prisoners, otherwise, he shall be credited to only four-fifth (4/5) thereof.
(Art. 29, NCC; as amended by RA 6127, June 17, 1970; U.S. vs. Ortencio, 38 Phil.
341; People vs. Chavez, 126 SCRA 1).

SO ORDERED."[7] (Underscoring ours)

Notwithstanding the single penalty imposed by the trial court, accused still
interposed the present appeal on the following grounds:

(1) The trial court erred in convicting Mario Tabaco of the crime of murder in
connection with the deaths of Oscar Tibulog, Jorge Arreola, Felicito Rigunan, and
Romeo Regunton.

(2) The trial court erred in holding Mario Tabaco liable for homicide on the death of
Jorge Siriban and the injury sustained by Benito Raquepo.

(3) The trial court erred in not giving credence to the testimony of accused-
appellant Tabaco.

The pivotal issue presented in this case is one of credibility. Time and again, we
have ruled that when the issue hinges on the credibility of witnesses vis-a-vis the
accused's denials, the trial court's findings with respect thereto are generally not
disturbed on appeal,[8] unless there appears in the record some fact or
circumstance of weight and influence which has been overlooked or the significance
of which has been misinterpreted.[9] The reason for the rule is eloquently stated in
the case of People vs. de Guzman,[10] thus:

"In the resolution of factual issues, the court relies heavily on the trial court for its
evaluation of the witnesses and their credibility. Having the opportunity to observe
them on the stand, the trial judge is able to detect that sometimes thin line
between fact and prevarication that will determine the guilt or innocence of the
accused. That line may not be discernible from a mere reading of the impersonal
record by the reviewing court. The record will not reveal those tell-tale signs that
will affirm the truth or expose the contrivance, like 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. The record will not show if
the eyes have darted in evasion or looked down in confession or gazed steadily with
a serenity that has nothing to distort or conceal. The record will not show if tears
were shed in anger, or in shame, or in remembered pain, or in feigned innocence.
Only the judge trying the case can see all these and on the basis of his
observations arrive at an informed and reasoned verdict."[11]

After a careful examination of the records, we find no ground or reason to set aside
or disturb the trial court's assessment of credibility of the eyewitnesses when they
testified pointing to accused-appellant as the assailant in the shooting of the group
of Ex-Mayor Arreola and his companions.

1. Eyewitnesses Antonio Villasin and Rosario Peneyra, who were with the group of
Ex-Mayor Arreola on that fateful night of March 22, 1989, categorically testified that
it was accused-appellant, whom they positively identified in court, who fired his M-
14 Rifle at their direction hitting the ex-mayor and his companions.

Villasin's testimony on this point is as follows:

COURT:

Q: You heard gun report, what can you say?

A: I saw that he was the one who made the gun report, sir.

ATTY ARRIOLA:

Q: Who was that 'he' you are referring to?

A: Mario Tabaco, sir. (p. 19, tsn, March 19, 1990)

Q: Why do you say that Mario Tabaco was the one from whom those gun reports
come from?
A: Because he was the only person from whom I saw a gun, sir.

Q: What did you do also upon hearing those gun reports?

A: I had to seek shelter, sir.

Q: What happened to Ex-Mayor Arreola?

A: He was hit, sir.

PROSECUTOR MIGUEL:
Q: You said that the accused shot Ex-Mayor Arreola, what kind of weapon did he
use if you know?
A: M-14, sir.

xxx xxx
xxx

Q: After the incident (precedent) have you come to learn what happened to
Regunton?
A: I came to know that he was dead, sir.

Q: Was that all you gathered?

A: Also Capt. Tabulog, sir.

xxx xxx
xxx

Q: How many shots did you hear?

A: Three (3) shots, sir.

Q: All those three (3) shots were directed to Ex-Mayor?

A: Yes, sir.

Q: You heard three shots according to you, was that successive or automatic?
A: Successive, sir.

Q: You were seated at the left side of Ex-Mayor Arreola, who was seated on his
right side?
A: None, sir.

xxx xxx
xxx

Q: Mr. witness, you said that you saw the deceased holding a gun when you first
heard gun shot, will you please describe the stands (position) of the accused?
A: Like this. (The witness demonstrated that the accused was standing on a forth
(port) arm position).

xxx xxx
xxx

Q: What did he do with the gun when you saw him?

A: He fired the gun, sir.
Q: To what the gun was directed when he fired the gun?
A: To Ex-Mayor Arreola, sir.

ATTY. VILLENA:

Q: You said earlier that after the incident you left the cockpit and returned, when
you returned, what did you see?
A: I saw two dead persons, sir.

Q: Whose cadavers were these that you saw?

A: The cadavers of Ex-Mayor Arreola and Capt. Tabulog, sir.

Q: How far was the cadaver of Tabulog to Arreola?

A: Less than a meter, sir.

xxx xxx
xxx

Q: When you saw the corpse of Capt. Tabulog, can you identify the person passing
as you mentioned?
A: They have similarity, sir.

xxx xxx
xxx

Q: When you heard first gun shot, can you tell the position of Arreola, you and
your companions?
A: We were sitting at the backrest of the 4th seat, sir.

Q: Where were you facing?

A: We were facing south the arena.

Q: Where did the first gun shot came from?

A: It came from Mario Tabaco, sir.

Q: From what direction?

A: Infront of us, sir.

Q: Where was he, was he in your front?

A: He was in the first row of seats.

Q: After the first gun shot, what happened?

A: Somebody was killed, sir.
Q: Who was that?
A: Ex-Mayor Arreola, sir.

xxx xxx
xxx

COURT:

Q: How many gun shot reports did you hear?

A: Many, sir.

ATTY. VILLENA:

Q: You said that you heard more gun shots, can you tell the nature, was there in
succession or automatic?
A: Automatic, sir.

xxx xxx
xxx

Q: Can you tell us your previous occupation?

A: An army man, sir.

Q: How long have you been employed with the army?

A: Five (5) years, sir.

Q: As an army before, have you ever been handled an M-14?

A: Yes, sir.

Q: Can you tell us if you are familiar with M-14 being fired?
A: Yes, sir.

Q: Now, you said earlier that you heard many more shots after you run, would
you say that these gun shots you heard were fired from M-14 rifle?
A: Those are that came from M-14, sir.

Q: Where were you at the time when you heard the automatic gun shot?
A: I was outside the cockpit, sir."[12]

On cross-examination by the defense counsel, witness Villasin testified, thus:

"ATTY. CONSIGNA:
Q: You said that after the first gun shot or gun report, Mr. Tabaco was on the first
seat downward, is it not?
A: Mr. Tabaco placed his left foot on the first seat aiming his gun, sir.

Q: Directly toward the first seat, is that what you mean?

A: It was directed to Ex-Mayor Arreola.

xxx xxx
xxx

Q: I want to make it clear, Mr. witness, it was the first gun that you went to hide
yourself at the gate of the cockpit, is that correct?
A: After the 3rd gun shot, sir.

Q: And these three (3) gun reports, they were in a single successive shot, is it not
Mr. witness?
A: Yes, sir.

xxx xxx
xxx

Q: That person who allegedly passed by you or infront of you prior to the first gun
report, did you notice if he had a gun with him?
A: He passed by our back, sir.

xxx xxx
xxx

Q: And that person according to you was still there when the late Mayor Arreola
was shot?
A: He was directly behind him when the gun reports were made, sir.

Q: You mean to say the first gun report?

A: Yes, sir.

Q: And that first gun report was hit Ex-Mayor Arreola?

A: The three gun reports hit the Mayor, sir."[13]

For his part, Peneyra testified as follows:

"ATTY. ARRIOLA

Q: Do you remember what particular place of the cockpit when you go with Mayor
Arreola?
A: Yes, sir.

Q: What part of the cockpit?

A: We went up to the bleacher, sir.

Q: Do you remember how the bleachers were arranged inside the cockpit?
A: Yes, sir.

Q: How were they arranged?

A: In rows, step by step, sir.

COURT:

Q: How many rows?

A: Four rows, sir.

ATTY. ARRIOLA:

Q: And what row did you stay together with the late Mayor Arreola?
A: The late Mayor Arreola and Antonio Villasin took the 4th step, sir.

Q: And how about you?

A: We stood at their back west of them, sir.

Q: By the way, can you tell to the court what were your respective position of the
place where you stayed?
A: The late Mayor Arreola and Antonio Villasin sat at the backrest of the fourth
step, sir.

Q: And how about you, where did you stay also?

A: I stood at the right back of Mayor Arreola, sir.

Q: And how about Romeo Regunton?

A: He also stayed at the back of Mayor Arreola, sir.

xxx xxx
xxx

Q: While you were in that position together with your companions, do you
remember if there was untoward incident that happened?
A: Yes, sir.

Q: What was that untoward incident that happened?

A: That was the time when Mario Tabaco shot the late Mayor Arreola, sir.
Q: Do you know what did Mario Tabaco use in shooting the late Arreola?
A: Yes, sir.

Q: What kind of firearm?

A: M-14, sir.

Q: And do you know if Mayor Arreola was hit when Mario Tabaco shot him?
A: Yes, sir.

Q: How do you know that Mayor Arreola was hit?

A: Because I saw it, sir.

Q: What did you do also?

A: When Mayor Arreola was already dead, I sought cover because I was also
wounded.

Q: Do you know what happened also to Romeo Regunton?

A: Yes, sir.

Q: What happened to him?

A: When I was wounded he also said, 'uncle I was also wounded.'

Q: What did you tell when he told you that?

A: I told him, 'you seek cover also my son'.

Q: How did Romeo Regunton took cover?

A: He moved slowly by dragging his body along the ground, sir.

xxx xxx
xxx

Q: By the way, how far were you from Mario Tabaco who fired upon the person of
Mayor Arreola?
A: Probably more than 3 meters, sir."[14]

On cross-examination, this witness testified as follows:

"ATTY. CONSIGNA:

Q: When for the first time when you were already in the cockpit arena did you see
the accused Mario Tabaco?
A: Before the shooting, sir.
Q: And approximately how many minutes or seconds did you see Mario Tabaco for
the first time prior to the shooting incident?
A: Probably 5 minutes before, sir.

Q: And in that place of the cockpit arena have you seen the accused herein
Mario Tabaco?
A: He sat on the first row of the seats.

Q: And sitting on the first row of the bleachers, on what part of the cockpit arena
did Mario Tabaco, the accused sit?
A: He sat a little bit west of us, sir.

COURT:

Q: How far?
A: Probably more than 3 meters, sir.

Q: A little bit to the west, do I get from you that he was seated on the western
part o the cockpit?
A: A little to the west, sir.

Q: And you together with the late Mayor Arreola were also on the western part of
the cockpit?
A: We were on the northwest.

Q: Mario Tabaco, therefore, the accused in these cases was not directly in front of
you?
A: A little bit west of us, sir.

Q: It was on that position of the accused Mario Tabaco and your position with the
late Arreola on the northwest when you according to you saw Mario Tabaco fired his
gun, is that what you mean?
A: Yes, sir.

Q: That the accused Mario Tabaco was on the first row when he allegedly shot on
Mayor Arreola who was on 4th row, is that what you mean?
A: Mario Tabaco stood up and faced us, sir.

Q: So while Mario Tabaco stood up and faced towards the direction where you
were together with the late Mayor Arreola still Mario Tabaco was on the floor of the
cockpit arena?
A: Yes, sir, on the cemented floor.

Q: And immediately after you heard the first shot coming from the accused
Mario Tabaco considering that you were right behind the late Mayor Arreola, as you
have stated in your direct examination you immediately sought cover?
A: I only lay flat to the floor of the cockpit when Mario Tabaco fired three (3)
shots.

xxx xxx
xxx

Q: At the time you laid flat facing down and you did not come to know that Mayor
Arreola was dead already?
A: Why not, the first and second shots, I know him that he was already dead.

Q: And the three (3) shots that you heard were all directed towards Mayor
Arreola?
A: Yes, sir, in our place.

xxx xxx
xxx

COURT:

Q: To whom the 3rd shot directed?

A: In our place, sir.

Q: No person was involved on the 3rd shot?

A: That was also the time when Romeo Regunton came toward me and told me
that he was also hit.

xxx xxx
xxx

COURT:

Q: You don't know the person who shot him?

A: It was Mario Tabaco because he was still firing then, sir.

Q: You do not know the person who shot him?

A: It was Mario Tabaco because he was still firing then, sir."[15]

The above testimonies of Villasin and Peneyra pointing to accused-appellant as the

assailant in the shooting of the ex-mayor and his companions were corroborated
further by the testimony of another eyewitness in the person of Rogelio
Guimmayen. His account of the incident is as follows:
"PROSECUTOR ABAD:

xxx xxx
xxx

Q: How far were you from Tabaco when you saw him holding that gun?
A: More or less ten (10) meters, sir.

Q: Where was he at that specific time and place?

A: Inside the cockpit, sir.

Q: Where were you also?

A: I was at the stairs, sir.

Q: When you saw him what happened if any?

A: When he entered he stopped and then the gun fired and that was the time
when I got down, sir.

Q: Did you see to whom he was directing the gun?

A: It was directed to the Mayor's place, sir.

Q: How far was the Mayor from the accused Mario Tabaco?
A: More or less three (3) meters only. There was only one bench between them,
sir.

Q: Did you see the accused firing his gun towards the Mayor?
A: With his first shot which was directed to the Mayor that was the time I got
down to hide myself, sir."[16]

On cross-examination, this witness testified as follows:

"ATTY. CONSIGNA:

Q: So, it was at the time you were inside the cockpit arena that you heard
gunfire?
A: Yes, sir.

Q: And you did not see who fired that gunfire while you were inside the cockpit
arena?
A: When I was inside, I saw Mario Tabaco pointing a gun to the Mayor and the
gun went off and that's the time I took cover, sir.

xxx xxx
xxx
Q: And that was the last time you heard burst of gunfire inside the cockpit arena?
A: When I went outside, I heard shots inside and outside."[17]

Set over against the foregoing positive and categorical testimonial declaration of
the abovenamed eyewitnesses for the prosecution is the accused-appellant's bare
denial of the charges against him. As between the positive identification of the
accused by the prosecution witnesses and the bare denial of accused, the choice is
not difficult to make. For, it is a settled rule that positive identification by the
prosecution witnesses of the accused as perpetrator of the crime is entitled to
greater weight than his bare denial and explanation.[18]

Likewise, there is no evidence from the record, as none was adduced by accused-
appellant, of any ill-motive on the part of the prosecution witnesses as to why
would they testify adversely against accused-appellant in the way that they did.
Well-settled is the rule that where there is no evidence and nothing to indicate, that
the principal witnesses for the prosecution were actuated by improper motive, the
presumption was that they were not so actuated and their testimonies are entitled
to full faith and credit.[19]

2. Accused-appellant contends that eyewitnesses Villasin and Peneyra were not

telling the truth when they testified that it was accused-appellant who was the
assailant in the shooting of Ex-Mayor Arreola and his companions considering that
Dr. Rivera, who examined the cadaver of Ex-Mayor Arreola, testified that the
trajectory of the bullets that hit the Ex-Mayor shows that the assailant was on the
same level as the Ex-Mayor, and the trajectory of the third bullet shows that the
assailant was at a higher level as the point of entry was higher than the point of
exit. Appellant states that he was seated at the first row which was the lowest while
the Ex-Mayor and his companions were seated at the fourth row which was the
highest. This contention, however, is untenable.

Eyewitnesses Villasin and Peneyra testified that accused-appellant was at the first
row of seats of the slanted bleachers of the cockpit arena, when he stood up,
stepped on one of the seats, aimed his rifle at Ex-Mayor Arreola and his
companions and fired at them.[20]

The abovequoted testimonies explain very well why two gunshot wounds found on
the cadaver of Ex-mayor Arreola appear to have been inflicted while he and his
assailant were face to face and at the same level.

Upon the other hand, according to Dr. Rivera, one of the gunshot wounds of Ex-
Mayor Arreola had a point of entry higher than the point of exit because he must
have already been lying down when his wound was inflicted.[21]

Well-established, too, from the evidence on record is accused-appellant's liability

for the death of Jorge Siriban, Jr. and the near-fatal wounding of Sgt. Benito
Raquepo.

Not seriously disputed by accused-appellant are the testimonies of Sgt. Benito

Raquepo and policeman Mario Retreta. Sgt. Benito Raquepo testified that at about
9:00 o'clock in the evening of March 22, 1987 while he was taking his snacks at the
canteen of Co located at the left side of the gate of the cockpit arena, he heard five
successive gun reports coming from inside the cockpit arena. While he was on his
way inside the cockpit arena, he saw the accused-appellant coming from inside the
cockpit arena. He told the accused "Mario relax ka lang", after which the accused
pointed his gun at him. At that point in time, Mario Retreta who was among the
persons near Mario Tabaco, grabbed the gun from the latter. It was at that point
when the gun went off hitting him on the right thigh and the bullet exiting on his
left thigh. He also saw that Jorge Siriban, who was then about three meters away
from his left side, was hit at his testicles.

Mario Retreta, a policeman and relative of accused-appellant, on the other hand

corroborated in part the testimony of Sgt. Raquepo. He testified that at about
10:00 o'clock in the evening of March 22, 1987, he was at the canteen of Mrs. Co.
While thereat, he saw accused-appellant rushing out from the cockpit arena. Before
he saw accused-appellant, he heard a gun report from inside the cockpit arena. He
was then about one meter away from accused-appellant when he noticed Sgt.
Raquepo whom he is acquainted with, and Jorge Siriban who was then standing at
the gate of the cockpit arena. Sgt. Raquepo was facing accused-appellant and at
that distance and position, he heard Sgt. Raquepo said: "Mario keep calm". He also
told accused-appellant: "What is that happened again, Mario." When he saw
accused-appellant change his gun position from port arm to horizontal position, he
got near accused-appellant and pressed down the muzzle of the gun when accused
appellant squeezed the trigger hitting Sgt. Raquepo on both thighs and also Jorge
Siriban. A certain Sgt. Ferrer joined in the grapple and was able to take away the
gun from accused-appellant.

Sgt. Raquepo survived the gunshot wounds due to adequate medical assistance but
Siriban was not as lucky.

Accused-appellant claims that he did not have the criminal intent to kill Siriban or
wound Sgt. Raquepo, and that the gun would not have been fired in the first place
had Mario Retreta, for no apparent reason, not tried to grab the gun from him, are
without merit.

Retreta testified that he grabbed the gun from accused-appellant because the latter
changed his gun from port arm position to horizontal position, and at that instance
he thought accused-appellant might harm Sgt. Raquepo.[22]
Furthermore, even assuming that he lacked criminal intent in the killing of Sgt.
Raquepo and the near-fatal wounding of Siriban, his claim of innocence cannot be
sustained. His undisputed act of firing the gun, which is by itself felonious in total
disregard of the consequences it might produce, is equivalent to criminal intent.

Accused-appellant cannot evade responsibility for his felonious acts, even if he did
not intend the consequences thereof for, in accordance with Art. 4 of the Revised
Penal Code, criminal liability is incurred by any person committing a felony although
the wrongful act done be different from that which he intended.

We note that while the accused was found guilty in all four (4) murder charges and
the penalty of reclusion perpetua should have been imposed on him in all four (4)
murder charges, the trial court imposed the penalty of reclusion perpetua for all
four murder charges. The trial court explained the single sentence for four murder
charges in this wise:

"Whether or not the criminal cases Nos. 259, 270, 284 and 317, involving the
killings of Oscar Tabulog, Jorge Arreola, Felicito Rigunan and Romeo Regunton,
respectively, should have been prosecuted under only one Information.

The law provides:

Art. 48. Penalty for complex crimes.

'When a single act constitutes two or more grave or less grave felonies, or when an
offense is a necessary means for committing the other, the penalty for the most
serious crime shall be imposed, the same to be applied in its maximum period. (as
amended by Art. No. 400). (Art. 48, Revised Penal Code).'

Read as it should be, this article provides for two classes of crimes where a single
penalty is to be imposed; first, where the single act constitutes two or more g rave
or less grave felonies (delito compuesto); and second, when the offense is a
necessarily means for committing the other (delito complejo) and/or complex
proper (People vs. Pineda, 20 SCRA 748).

In the cases at bar, the Provincial Prosecutor filed four (4) separate Informations of
murder, which should have been otherwise, as the shooting to death of the four (4)
victims should have been prosecuted under one information, involving four (4)
murder victims.

The evidence shows that the four (4) victims were FELLED by one single shot/burst
of fire and/or successive automatic gun fires, meaning continuous. Hence, it is a
complex crime involving four murdered victims, under the first category, where a
single act of shooting constituted two or more grave or less grave felonies (delito
compuesto), as decided in the cases of People vs. Dama, CA 44 O.G.
3339; People vs. Lawas, 97 Phil. 975; People vs. Pineda, L-26222, July 21, 1967,
20 SCRA 748.

Paraphrasing a more recent decision of the Supreme Court, we say -- as the deaths
of Oscar Tahulog, Jorge Arreola, Felicito Rigunan and Romeo Regunton, in Criminal
Cases Nos. 259, 270, 284 and 317 respectively, were the result of one single act of
the accused Mario Tabaco, (People vs. Guillen, 85 Phil. 307) the penalty --- is the
penalty imposed for the more serious offense. The more serious offense is murder,
the killing have been attended by TREACHERY because the victims were completely
taken by surprise and had no means of defending themselves against
Mario Tabaco's sudden attack. The penalty is imposable in its maximum degree
(People vs. Fernandez, 99 Phil. 515), but as the death penalty is no longer
permitted the same is hereby reduced to a single penalty of RECLUSION PERPETUA
for the four (4) murders. (People vs. Herson Maghanoy, GR Nos. 67170-72,
December 15, 1989).

Accordingly, in Criminal Case No. 10-316, for homicide with Frustrated Homicide
and it appearing also that the death of Jorge Siriban and the wounding of Benito
Raquepo, was the result of one single act of the accused Tabaco, the applicable
penalty is the penalty imposed for the more serious offense. The more serious
offense is HOMICIDE, to be imposed in its maximum degree of reclusion temporal,
which is 17 years, 4 months, 1 day to 20 years. There being no modifying
circumstances and applying the Indeterminate Sentence Law, the penalty that
should be imposed, and which is hereby imposed, upon the accused Mario Tabaco is
10 years and 1 day of Prision Mayor as the minimum, to 17 years, 4 months, 1 day
of Reclusion Temporal, as maximum, plus P30,000.00 actual damages for medical
expenses of Benito Raquepo.

It was duly proved beyond doubt that the gun (Exhs. 'K', SN No. 1492932, 'K-2' —
magazine of M-14 and Exh. 'L' — Memo Receipt of M-14 issued to Tabaco), used by
the accused, is admittedly an automatic powerful weapon, more powerful than an
M-16 armalite rifle. It is so powerful that the bullets can penetrate even more than
five (5) persons resulting to their deaths. And, this was proven when, according to
witness Rosario Peneyra, the bullets even destroyed the cemented rail guard
separating the lower and upper bleachers of the cockpit arena, and causing wounds
on his face and on his right shoulder. Additionally, we have the used/spent empty
shells (Exh. 'R' and 'R-1')."[23]

We hold that the trial court was in error in imposing only a single penalty of
reclusion perpetua for all four murder cases. The trial court holding that a complex
crime was committed since "the evidence shows that the four (4) victims were
FELLED by one single shot/burst of fire and/or successive automatic gun fires,
meaning continuous (emphasis ours)"[24] does not hold water.
Of course, to justify the penalty imposed, the trial court relied on the doctrines
enunciated in People vs. Pama[25] (not People vs. Dama, as cited by the trial
court), People vs. Lawas,[26] and People vs. Pineda.[27]

The trial court misappreciated the facts in People vs. Pama. In said case, there was
only one bullet which killed two persons. Hence, there was only a single act which
produced two crimes, resulting in a specie of complex crime known as a compound
crime, wherein a single act produces two or more grave or less grave felonies. In
the case at bench, there was more than one bullet expended by the accused-
appellant in killing the four victims. The evidence adduced by the prosecution show
that Tabaco entered the cockpit with a fully loaded M-14 sub-machine gun.[28] He
fired the weapon, which contained 20 rounds of bullets in its magazine,
continuously. When the rifle was recovered from Tabaco, the magazine was already
empty. Moreover, several spent shells were recovered from the scene of the crime.
Hence, the ruling enunciated in People vs. Pama cannot be applied. On the
contrary, what is on all fours with the case at bench is the ruling laid down
in People vs. Desierto[29]. The accused in that case killed five persons with a
Thompson sub-machine gun, an automatic firearm which, like the M-14, is capable
of firing continuously. As stated therein:

"In the case at bar, Article 48 of the Revised Penal Code is not applicable because
the death of each of the five persons who were killed by appellant and the physical
injuries inflicted upon each of the two other persons injured were not caused by the
performance by the accused of one simple act as provided for by said article.
Although it is true that several successive shots were fired by the accused in a short
space of time, yet the factor which must be taken into consideration is that, to each
death caused or physical injuries inflicted upon the victims, corresponds a distinct
and separate shot fired by the accused, who thus made himself criminally liable for
as many offenses as those resulting from every singe act that produced the same.
Although apparently he perpetrated a series of offenses successively in a matter of
seconds, yet each person killed and each person injured by him became the victim,
respectively, of a separate crime of homicide or frustrated homicide. Except for the
fact that five crimes of homicide and two cases of frustrated homicide were
committed successively during the tragic incident, legally speaking there is nothing
that would connect one of them with its companion offenses." (emphasis ours)

In Desierto, although the burst of shots was caused by one single act of pressing
the trigger of the Thompson sub-machine gun, in view of its special mechanism, the
person firing it has only to keep pressing the trigger with his finger and it would fire
continually. Hence, it is not the act of pressing the trigger which should produce the
several felonies, but the number of bullets which actually produced them.[30]

The trial court also misread People vs. Pineda.[31] True, the case of Pineda provided
us with a definition of what a complex crime is. But that is not the point. What is
relevant is that Art. 48 was not applied in the said case because the Supreme Court
found that there were actually several homicides committed by the perpetrators.
Had the trial court read further, it would have seen that the Supreme Court in fact
recognized the "deeply rooted x x x doctrine that when various victims expire from
separate shots, such acts constitute separate and distinct crimes."[32]Clarifying the
applicability of Art. 48 of the Revised Penal Code, the Supreme Court further stated
in Pineda that "to apply the first half of Article 48, x x x there must be singularity of
criminal act; singularity of criminal impulse is not written into the
law."[33] (emphasis supplied) The firing of several bullets by Tabaco, although
resulting from one continuous burst of gunfire, constitutes several acts. Each
person, felled by different shots, is a victim of a separate crime of murder. There is
no showing that only a single missile passed through the bodies of all four victims.
The killing of each victim is thus separate and distinct from the other. In People vs.
Pardo[34]we held that:

"Where the death of two persons does not result from a single act but from two
different shots, two separate murders, and not a complex crime, are committed."
Furthermore, the trial court's reliance on the case of People vs. Lawas[35] is
misplaced. The doctrine enunciated in said case only applies when it is impossible
to ascertain the individual deaths caused by numerous killers. In the case at bench,
all of the deaths are attributed, beyond a shadow of a doubt, to the accused-
appellant.

Consequently, the four murders which resulted from a burst of gunfire cannot be
considered a complex crime. They are separate crimes. The accused-appellant must
therefore be held liable for each and every death he has caused, and sentenced
accordingly to four sentences of reclusion perpetua.

WHEREFORE, no reversible error having been committed by the trial court in

finding accused-appellant guilty of four (4) counts of Murder and one (1) count of
Homicide with frustrated homicide, the judgment appealed from should be, as it is,
hereby AFFIRMED, with the MODIFICATION that four sentences of reclusion
perpetua be hereby imposed.

Costs against accused-appellant.

SO ORDERED.

[ G.R. NO. 139857, September 15, 2006 ]

LEONILA BATULANON, PETITIONER VS. PEOPLE OF THE
PHILIPPINES, RESPONDENT.

DECISION
YNARES-SANTIAGO, J.:

This petition assails the October 30, 1998 Decision[1] of the Court of Appeals in CA-
G.R. CR No. 15221, affirming with modification the April 15, 1993 Decision[2] of the
Regional Trial Court of General Santos City, Branch 22 in Criminal Case Nos. 3453,
3625, 3626 and 3627, convicting Leonila Batulanon of estafa through falsification of
commercial documents, and the July 29, 1999 Resolution[3] denying the motion for
reconsideration.

Complainant Polomolok Credit Cooperative Incorporated (PCCI) employed

Batulanon as its Cashier/Manager from May 1980 up to December 22, 1982. She
was in charge of receiving deposits from and releasing loans to the member of the
cooperative.

During an audit conducted in December 1982, certain irregularities concerning the

release of loans were discovered.[4]

Thereafter, four informations for estafa thru falsification of commercial documents

were filed against Batulanon, to wit:

Criminal Case No. 3625

That on or about the 2nd day of June, 1982 at Poblacion Municipality of Polomolok,
Province of South Cotabato, Philippines, and within the jurisdiction of the Honorable
Court said accused being then the manager-cashier of Polomolok Credit
Cooperative, Inc., (PCCI), entrusted with the duty of managing the aff[a]irs of the
cooperative, receiving payments to, and collections of, the same, and paying out
loans to members, taking advantage of her position and with intent to prejudice
and defraud the cooperative, did then and there willfully, unlawfully and feloniously
falsify a commercial document, namely: Cash/Check Voucher No. 30-A of PCCI in
the name of Erlinda Omadlao by then and there making an entry therein that the
said Erlinda Omadlao was granted a loan of P4,160, Philippine Currency, and by
signing on the appropriate line thereon the signature of Erlinda Omadlao showing
that she received the loan, thus making it appear that the said Erlinda Omadlao
was granted a loan and received the amount of P4,160 when in truth and in fact the
said person was never granted a loan, never received the same, and never signed
the cash/check voucher issued in her name, and in furtherance of her criminal
intent and fraudulent design to defraud PCCI said accused did then and there
release to herself the same and received the loan of P4,160 and thereafter
misappropriate and convert to her own use and benefit the said amount, and
despite demands, refused and still refuses to restitute the same, to the damage and
prejudice of PCCI, in the aforementioned amount of P4,160, Philippine Currency.[5]
Criminal Case No. 3626

That on or about the 24th day of September, 1982 at Poblacion, Municipality of

Polomolok, Province of South Cotabato, Philippines, and within the jurisdiction of
the Honorable Court, said accused being then the manager-cashier of Polomolok
Credit Cooperative, Inc. (PCCI), entrusted with the duty of managing the affairs of
the cooperative, receiving payments to, and collections of, the same, and paying
out loans to members taking advantage of her position and with intent to prejudice
and defraud the cooperative, did then and there willfully, unlawfully and feloniously
falsify a commercial document, namely: Cash/Check Voucher No. 237 A of PCCI in
the name of Gonafreda Oracion by then and there making an entry therein that the
said Gonafreda Oracion was granted a loan of P4,000.00 and by signals on the
appropriate line thereon the signature of Gonafreda Oracion showing that she
received the loan, thus making it appear that the said Gonafreda Oracion was
granted a loan, received the loan of P4,000.00 when in truth and in fact said person
was never granted a loan, never received the same, and never signed the
Cash/Check voucher issued in her name, and in furtherance of her criminal intent
and fraudulent design to defraud PCCI said accused did then and there release to
herself the same and received the amount of P4,000.00 and thereafter
misappropriate and convert to her own use and benefit the said amount, and
despite demands, refused and still refuses to restitute the same, to the damage and
prejudice of PCCI, in the aforementioned amount of P4,000, Philippine Currency.

CONTRARY TO LAW.[6]

Criminal Case No. 3453

That on or about the 10th day of October 1982 at Poblacion, Municipality of

Polomolok, Province of South Cotabato, Philippines, and within the jurisdiction of
the Honorable Court, the said accused being then the manager-cashier of
Polomolok Credit Cooperative, Inc., (PCCI), entrusted with the duty of managing
the affairs of the cooperative, receiving payments to, and collection of the same
and paying out loans to members, taking advantage of her position and with intent
to prejudice and defraud the cooperative, did then and there willfully, unlawfully
and feloniously falsify a commercial document, namely: an Individual Deposits and
Loan Ledger of one Ferlyn Arroyo with the PCCI by then and there entering on the
appropriate column of the ledger the entry that the said Ferlyn Arroyo had a fixed
deposit of P1,000.00 with the PCCI and was granted a loan in the amount of
P3,500.00, thus making it appear that the said person made a fixed deposit on the
aforesaid date with, and was granted a loan by the PCCI when in truth and in fact
Ferlyn Arroyo never made such a deposit and was never granted loan and after the
document was so falsified in the manner set forth, said accused did then and there
again falsify the Cash/Check Voucher of the PCCI in the name of Ferlyn Arroyo by
signing therein the signature of Ferlyn Arroyo, thus making it appear that the said
Ferlyn Arroyo received the loan of P3,500, Philippine Currency, when in truth and in
fact said Ferlyn Arroyo never received the loan, and in furtherance of her criminal
intent and fraudulent design to defraud PCCI said accused did then and there
release to herself the same, and received the amount of P3,500, and thereafter, did
then and there, wilfully, unlawfully and feloniously misappropriate and convert to
her own personal use and benefit the said amount, and despite demands, refused
and still refuses to restitute the same, to the damage and prejudice of the PCCI in
the aforementioned amount of P3,500, Philippine Currency.

CONTRARY TO LAW.[7]

Criminal Case No. 3627

That on or about the 7th day of December, 1982 at Poblacion, Municipality of

Polomolok, Province of South Cotabato, Philippines, and within the jurisdiction of
the Honorable Court, the said accused being then the manager-cashier of
Polomolok Credit Cooperative, Inc., (PCCI) entrusted with the duty of managing the
affairs of the cooperative, receiving payments to, and collection of, the same and
paying out loans to members, taking advantage of her position and with intent to
prejudice and defraud the cooperative, did then and there willfully, unlawfully and
feloniously falsify a commercial document, namely: an Individual Deposits and Loan
Ledger of one Dennis Batulanon with the PCCI by then and there entering on the
appropriate column of the ledger the entry that the said Dennis Batulanon had a
fixed deposit of P2,000.00 with the PCCI and was granted a loan in the amount of
P5,000.00 thus making it appear that the said person made fixed deposit on the
aforesaid date with, and was granted a loan by the PCCI when in truth and in fact
Dennis Batulanon never made such a deposit and was never granted loan and offer
the document was so falsified in the manner set forth, said accused did then and
there again falsify the Cash/Check Voucher No. 374 A of PCCI in the name of
Dennis Batulanon by signing therein the signature of Dennis Batulanon, thus
making it appear that the said Dennis Batulanon received the loan of P5,000.00
when in truth and in fact said Dennis Batulanon never received the loan and in
furtherance of her criminal intent and fraudulent design to defraud PCCI said
accused did then and there release to herself the same and receive the loan of
P5,000, and thereafter, did then and there willfully, unlawfully and feloniously
misappropriate and convert to her own personal use and benefit the said amount,
and [despite] demands, refused and still refuses to restitute the same to the
damage and prejudice of the PCCI in the aforementioned amount of P5,000,
Philippine Currency.

CONTRARY TO LAW.[8]

The cases were raffled to Branch 22 of the Regional Trial Court of General Santos
City and docketed as Criminal Case Nos. 3453, 3625, 3626 and 3627.

Batulanon pleaded not guilty to the charges, afterwhich a joint trial on the merits
ensued.

The prosecution presented Maria Theresa Medallo, Benedicto Gopio, Jr., and
Bonifacio Jayoma as witnesses.

Medallo, the posting clerk whose job was to assist Batulanon in the preparation of
cash vouchers[9] testified that on certain dates in 1982, Batulanon released four
Cash Vouchers representing varying amounts to four different individuals as
follows: On June 2, 1982, Cash Voucher No. 30A[10] for P4,160.00 was released to
Erlinda Omadlao; on September 24, 1982, Cash Voucher No. 237A[11] for P4,000.00
was released to Gonafreda[12] Oracion; P3, 500.00 thru Cash Voucher No.
276A[13] was released to Ferlyn Arroyo on October 16, 1982 and on December 7,
1982, P5,000.00 was released to Dennis Batulanon thru Cash Voucher No. 374A.[14]

Medallo testified that Omadlao, Oracion, and Dennis Batulanon were not eligible to
apply for loan because they were not bona fide members of the
cooperative.[15] Ferlyn Arroyo on the other hand, was a member of the cooperative
but there was no proof that she applied for a loan with PCCI in 1982. She
subsequently withdrew her membership in 1983.[16] Medallo stated that pursuant to
the cooperative's by-laws, only bona fide members who must have a fixed deposit
are eligible for loans.[17]

Medallo categorically stated that she saw Batulanon sign the names of Oracion and
Arroyo in their respective cash vouchers and made it appear in the records that
they were payees and recipients of the amount stated therein.[18] As to the
signature of Omadlao in Cash Voucher No. 30A, she declared that the same was
actually the handwriting of appellant.[19]

Gopio, Jr. was a member of PCCI since 1975 and a member of its board of directors
since 1979. He corroborated Medallo's testimony that Omadlao, Arroyo, Oracion
and Dennis Batulanon are not members of PCCI. He stated that Oracion is
Batulanon's sister-in-law while Dennis Batulanon is her son who was only 3 years
old in 1982. He averred that membership in the cooperative is not open to
minors.[20]

Jayoma was the Vice-Chairman of the PCCI Board of Directors in 1980 before
becoming its Chairman in 1982 until 1983. He testified that the loans made to
Oracion, Omadlao, Arroyo and Dennis Batulanon did not pass through the
cooperative's Credit Committee and PCCI's Board of Directors for screening
purposes. He claimed that Oracion's signature on Cash Voucher No. 237A is
Batulanon's handwriting.[21] Jayoma also testified that among the four loans taken,
only that in Arroyo's name was settled.[22]

The defense presented two witnesses, namely, Maria Theresa Medallo who was
presented as a hostile witness and Batulanon.

Medallo was subpoenaed by the trial court on behalf of the defense and was asked
to bring with her the PCCI General Journal for the year 1982. After certifying that
the said document reflected all the financial transactions of the cooperative for that
year, she was asked to identify the entries in the Journal with respect to the
vouchers in question. Medallo was able to identify only Cash Voucher No. 237A in
the name of Gonafreda Oracion. She failed to identify the other vouchers because
the Journal had missing pages and she was not the one who prepared the
entries. [23]

Batulanon denied all the charges against her. She claimed that she did not sign the
vouchers in the names of Omadlao, Oracion and Arroyo; that the same were signed
by the loan applicants in her presence at the PCCI office after she personally
released the money to them; [24] that the three were members of the cooperative as
shown by their individual deposits and the ledger; that the board of directors
passed a resolution in August 1982 authorizing her to certify to the correctness of
the entries in the vouchers; that it has become an accepted practice in the
cooperative for her to release loans and dispense with the approval of Gopio Jr., in
case of his absence;[25] that she signed the loan application and voucher of her son
Dennis Batulanon because he was a minor but she clarified that she asked Gopio,
Jr., to add his signature on the documents to avoid suspicion of irregularity;[26] that
contrary to the testimony of Gopio, Jr., minors are eligible for membership in the
cooperative provided they are children of regular members.

Batulanon admitted that she took out a loan in her son's name because she is no
longer qualified for another loan as she still has to pay off an existing loan; that she
had started paying off her son's loan but the cooperative refused to accept her
payments after the cases were filed in court.[27] She also declared that one
automatically becomes a member when he deposits money with the
cooperative.[28] When she was Cashier/Manager of PCCI from 1980 to 1982, the
cooperative did not have by-laws yet.[29]

On rebuttal, Jayoma belied that PCCI had no by-laws from 1980-1982, because the
cooperative had been registered since 1967.[30]

On April 15, 1993, the trial court rendered a Decision convicting Batulanon as
follows:

WHEREFORE, premises considered, finding the accused Leonila Batulanon guilty

beyond reasonable doubt in all the above-entitled case, she is sentenced in each of
the four cases to 4 months of ARRESTO MAYOR to 1 year and 2 months of PRISION
CORRECTIONAL, to indemnify the PCCI in the total sum of P16,660.00 with legal
interest from the institution of the complaints until fully paid, plus costs.
SO ORDERED.[31]

The Court of Appeals affirmed with modification the decision of the trial court, thus:

WHEREFORE, the decision appealed from is MODIFIED. Appellant LEONILA

BATULANON is found guilty beyond reasonable doubt of Falsification of Private
Documents under Par. 2, Article 172 of the Revised Penal Code; and is hereby
sentenced to suffer the indeterminate penalty of six (6) months of arresto
mayor maximum, AS MINIMUM, to four (4) years and two (2) months of prision
correccional medium, AS MAXIMUM; to pay a fine of five thousand (P5,000.00)
pesos; and to indemnify the Polomolok Cooperative Credit , Inc. the sum of thirteen
thousand one hundred sixty (P13,160.00), plus legal interests from the filing of the
complaints until fully paid, plus costs.

SO ORDERED.[32]

The motion for reconsideration was denied, hence this petition.

Batulanon argues that in any falsification case, the best witness is the person
whose signature was allegedly forged, thus the prosecution should have presented
Erlinda Omadlao, Gonafreda Oracion and Ferlyn Arroyo instead of relying on the
testimony of an unreliable and biased witness such as Medallo.[33] She avers that
the crime of falsification of private document requires as an element prejudice to a
third person. She insists that PCCI has not been prejudiced by these loan
transactions because these loans are accounts receivable by the cooperative. [34]

The petition lacks merit.

Although the offense charged in the information is estafa through falsification of

commercial document, appellant could be convicted of falsification of private
document under the well-settled rule that it is the allegations in the information
that determines the nature of the offense and not the technical name given in the
preamble of the information. In Andaya v. People,[35] we held:

From a legal point of view, and in a very real sense, it is of no concern to the
accused what is the technical name of the crime of which he stands charged. It in
no way aids him in a defense on the merits. x x x That to which his attention should
be directed, and in which he, above all things else, should be most interested, are
the facts alleged. The real question is not did he commit a crime given in the law
some technical and specific name, but did he perform the acts alleged in the body
of the information in the manner therein set forth. x x x The real and important
question to him is, "Did you perform the acts alleged in the manner alleged?" not,
"Did you commit a crime named murder?" If he performed the acts alleged, in the
manner stated, the law determines what the name of the crime is and fixes the
penalty therefor. x x x If the accused performed the acts alleged in the manner
alleged, then he ought to be punished and punished adequately, whatever may be
the name of the crime which those acts constitute.

The elements of falsification of private document under Article 172, paragraph

2[36] of the Revised Penal Code are: (1) that the offender committed any of the acts
of falsification, except those in paragraph 7, Article 171; (2) that the falsification
was committed in any private document; and (3) that the falsification caused
damage to a third party or at least the falsification was committed with intent to
cause such damage.[37]

In Criminal Case Nos. 3625, 3626, and 3453, Batulanon's act[38] of falsification falls
under paragraph 2 of Article 171, i.e., causing it to appear that persons have
participated in any act or proceeding when they did not in fact so participate. This is
because by signing the name of Omadlao, Oracion, and Arroyo in Cash Voucher
Nos. 30A, 237A, and 267A, respectively, as payee of the amounts appearing in the
corresponding cash vouchers, Batulanon made it appear that they obtained a loan
and received its proceeds when they did not in fact secure said loan nor receive the
amounts reflected in the cash vouchers.

The prosecution established that Batulanon caused the preparation of the Cash
Vouchers in the name of Omadlao and Oracion knowing that they are not PCCI
members and not qualified for a loan from the cooperative. In the case of Arroyo,
Batulanon was aware that while the former is a member, she did not apply for a
loan with the cooperative.

Medallo categorically declared that she saw Batulanon forge the signatures of
Oracion and Arroyo in the vouchers and made it appear that the amounts stated
therein were actually received by these persons. As to the signature of Arroyo,
Medallo's credible testimony and her familiarity with the handwriting of Batulanon
proved that it was indeed the latter who signed the name of Arroyo. Contrary to
Batulanon's contention, the prosecution is not duty-bound to present the persons
whose signatures were forged as Medallo's eyewitness account of the incident was
sufficient. Moreover, under Section 22, Rule 132 of the Rules of Court, the
handwriting of a person may be proved by any witness who believes it to be the
handwriting of such person because he has seen the person write, or has seen
writing purporting to be his upon which the witness has acted or been charged, and
has thus acquired knowledge of the handwriting of such person.

Her insistence that Medallo is a biased witness is without basis. There is no

evidence showing that Medallo was prompted by any ill motive.

The claim that Batulanon's letter to the cooperative asking for a compromise was
not an admission of guilt is untenable. Section 27, Rule 130 of the Rules of Court
provides that in criminal cases, except those involving quasi-offenses or criminal
negligence or those allowed by law to be compromised, an offer of compromise by
the accused may be received in evidence as an implied admission of guilt.

There is no merit in Batulanon's assertion that PCCI has not been prejudiced
because the loan transactions are reflected in its books as accounts receivable. It
has been established that PCCI only grants loans to its bona fide members with no
subsisting loan. These alleged borrowers are not members of PCCI and neither are
they eligible for a loan. Of the four accounts, only that in Ferlyn Arroyo's name was
settled because her mother, Erlinda, agreed to settle the loan to avoid legal
prosecution with the understanding however, that she will be reimbursed once the
money is collected from Batulanon.[39]

The Court of Appeals[40] correctly ruled that the subject vouchers are private
documents and not commercial documents because they are not documents used
by merchants or businessmen to promote or facilitate trade or credit
transactions[41] nor are they defined and regulated by the Code of Commerce or
other commercial law.[42] Rather, they are private documents, which have been
defined as deeds or instruments executed by a private person without the
intervention of a public notary or of other person legally authorized, by which some
disposition or agreement is proved, evidenced or set forth. [43]

In all criminal prosecutions, the burden of proof is on the prosecution to establish

the guilt of the accused beyond reasonable doubt. It has the duty to prove each
and every element of the crime charged in the information to warrant a finding of
guilt for the said crime or for any other crime necessarily included therein.[44] The
prosecution in this case was able to discharge its burden completely.

As there is no complex crime of estafa through falsification of private

document,[45] it is important to ascertain whether the offender is to be charged with
falsification of a private document or with estafa. If the falsification of a private
document is committed as a means to commit estafa, the proper crime to be
charged is falsification. If the estafa can be committed without the necessity of
falsifying a document, the proper crime to be charged is estafa. Thus, in People v.
Reyes,[46] the accused made it appear in the time book of the Calamba Sugar Estate
that a laborer, Ciriaco Sario, worked 21 days during the month of July, 1929, when
in reality he had worked only 11 days, and then charged the offended party, the
Calamba Sugar Estate, the wages of the laborer for 21 days. The accused
misappropriated the wages during which the laborer did not work for which he was
convicted of falsification of private document.

In U.S. v. Infante,[47] the accused changed the description of the pawned article on
the face of the pawn ticket and made it appear that the article is of greatly superior
value, and thereafter pawned the falsified ticket in another pawnshop for an
amount largely in excess of the true value of the article pawned. He was found
guilty of falsification of a private document. In U.S. v. Chan Tiao,[48] the accused
presented a document of guaranty purportedly signed by Ortigas Hermanos for the
payment of P2,055.00 as the value of 150 sacks of sugar, and by means of said
falsified documents, succeeded in obtaining the sacks of sugar, was held guilty of
falsification of a private document.

In view of the foregoing, we find that the Court of Appeals correctly held Batulanon
guilty beyond reasonable doubt of Falsification of Private Documents in Criminal
Case Nos. 3625, 3626 and 3453.

Article 172 punishes the crime of Falsification of a Private Document with the
penalty of prision correccional in its medium and maximum periods with a duration
of two (2) years, four (4) months and one (1) day to six (6) years. There being no
aggravating or mitigating circumstances, the penalty should be imposed in its
medium period, which is three (3) years, six (6) months and twenty-one (21) days
to four (4) years, nine (9) months and ten (10) days. Taking into consideration the
Indeterminate Sentence Law, Batulanon is entitled to an indeterminate penalty the
minimum of which must be within the range of arresto mayor in its maximum
period to prision correccional in its minimum period, or four (4) months and one (1)
day to two (2) years and four (4) months.[49] Thus, in Criminal Case Nos. 3625,
3626 and 3453, the Court of Appeals correctly imposed the penalty of six (6)
months of arresto mayor, as minimum, to four (4) years and two (2) months
of prision correccional, as maximum, which is within the range of the allowed
imposable penalty.

Since Batulanon's conviction was for 3 counts of falsification of private documents,

she shall suffer the aforementioned penalties for each count of the offense charged.
She is also ordered to indemnify PCCI the amount of P11,660.00 representing the
aggregate amount of the 3 loans without deducting the amount of P3,500.00 paid
by Ferlyn Arroyo's mother as the same was settled with the understanding that
PCCI will reimburse the former once the money is recovered. The amount shall earn
interest at the rate of 6% per annum from the filing of the complaints on November
28, 1994 until the finality of this judgment. From the time the decision becomes
final and executory, the interest rate shall be 12% per annum until its satisfaction.

However, in Criminal Case No. 3627, the crime committed by Batulanon

is estafa and not falsification. Under Article 171 of the Revised Penal Code, the acts
that may constitute falsification are the following:

1. Counterfeiting or imitating any handwriting, signature, or rubric;

2. Causing it to appear that persons have participated in any act or proceeding

when they did not in fact so participate;

3. Attributing to persons who have participated in an act or proceeding statements

other than those in fact made by them;
4. Making untruthful statements in a narration of facts;

5. Altering true dates;

6. Making any alteration or intercalation in a genuine document which changes its

meaning;

7. Issuing in an authenticated form a document purporting to be a copy of an

original document when no such original exists, or including in such copy a
statement contrary to, or different from, that of the genuine original; or;

8. Intercalating any instrument or note relative to the issuance thereof in a

protocol, registry, or official book.

In Criminal Case No. 3627, the trial court convicted petitioner Batulanon for
falsifying Dennis Batulanon's signature in the cash voucher based on the
Information charging her of signing the name of her 3 year old son, Dennis. The
records, however, reveal that in Cash Voucher No. 374A, petitioner Batulanon did
not falsify the signature of Dennis. What she did was to sign: "by: lbatulanon" to
indicate that she received the proceeds of the loan in behalf of Dennis. Said act
does not fall under any of the modes of falsification under Article 171 because there
in nothing untruthful about the fact that she used the name of Dennis and that as
representative of the latter, obtained the proceeds of the loan from PCCI. The
essence of falsification is the act of making untruthful or false statements, which is
not attendant in this case. As to whether, such representation involves fraud which
caused damage to PCCI is a different matter which will make her liable for estafa,
but not for falsification. Hence, it was an error for the courts below to hold that
petitioner Batulanon is also guilty of falsification of private document with respect
to Criminal Case No. 3627 involving the cash voucher of Dennis.[50]

The elements of estafa through conversion or misappropriation under Art. 315 (1)
(b) of the Revised Penal Code are:

(1) that money, goods or other personal property is received by the offender in
trust, or on commission, or for administration, or under any other obligation
involving the duty to make delivery of, or to return, the same;

(2) that there be misappropriation or conversion of such money or property by the

offender or denial on his part of such receipt;

(3) that such misappropriation or conversion or denial is to the prejudice of

another;

(4) that there is a demand made by the offended party on the offender. (Note: The
4th element is not necessary when there is evidence of misappropriation of the
goods by the defendant)[51]

Thus in the case of U.S. v. Sevilla,[52] the Court convicted the appellant of estafa by
misappropriation. The latter, a treasurer of the Manila Rail Road Company, took the
sum of P8,330.00 out of the funds of the company and used it for personal
purposes. He replaced said cash with his personal check of the same amount drawn
on the Philippine National Bank (PNB), with instruction to his cashier not to deposit
the same in the current account of the Manila Rail Road Company until the end of
the month. When an audit was conducted, the check of appellant was discovered to
have been carried in the accounts as part of the cash on hand. An inquiry with the
PNB disclosed that he had only P125.66 in his account, although in the afternoon of
the same day, he deposited in his account with the PNB sufficient sum to cover the
check. In handing down a judgment of conviction, the Court explained that:

Fraudulent intent in committing the conversion or diversion is very evidently not a

necessary element of the form of estafa here discussed; the breach of confidence
involved in the conversion or diversion of trust funds takes the place of fraudulent
intent and is in itself sufficient. The reason for this is obvious: Grave as the offense
is, comparatively few men misappropriate trust funds with the intention of
defrauding the owner; in most cases the offender hopes to be able to restore the
funds before the defalcation is discovered. x x x

Applying the legal principles here stated to the facts of the case, we find all of the
necessary elements of estafa x x x. That the money for which the appellant's
checks were substituted was received by him for safe-keeping or administration, or
both, can hardly be disputed. He was the responsible financial officer of the
corporation and as such had immediate control of the current funds for the
purposes of safe-keeping and was charged with the custody of the same. That he,
in the exercise of such control and custody, was aided by subordinates cannot alter
the case nor can the fact that one of the subordinates, the cashier, was a bonded
employee who, if he had acted on his own responsibility, might also have
misappropriated the same funds and thus have become guilty of estafa.

Neither can there be any doubt that, in taking money for his personal use, from the
funds entrusted to him for safekeeping and substituting his personal checks
therefor with instructions that the checks were to be retained by the cashier for a
certain period, the appellant misappropriated and diverted the funds for that period.
The checks did not constitute cash and as long as they were retained by the
appellant or remained under his personal control they were of no value to the
corporation; he might as well have kept them in his pocket as to deliver them to his
subordinate with instructions to retain them.

xxxx
But it is argued in the present case that it was not the intention of the accused to
permanently misappropriate the funds to himself. As we have already stated, such
intention rarely exists in cases of this nature and, as we have seen, it is not a
necessary element of the crime. Though authorities have been cited who, at first
sight, appear to hold that misappropriation of trust funds for short periods does not
always amount to estafa, we are not disposed to extend this interpretation of the
law to cases where officers of corporations convert corporate funds to their own
use, especially where, as in this case, the corporation is of a quasi-public character.
The statute is clear and makes no distinction between permanent misappropriations
and temporary ones. We can see no reason in the present case why it should not be
applied in its literal sense.

The third element of the crime with which the appellant is charged is injury to
another. The appellant's counsel argues that the only injury in this case is the loss
of interest suffered by the Railroad Company during the period the funds were
withheld by the appellant. It is, however, well settled by former adjudications of
this court that the disturbance in property rights caused by the misappropriation,
though only temporary, is in itself sufficient to constitute injury within the meaning
of paragraph 5, supra. (U.S. vs. Goyenechea, 8 Phil., 117 U.S. vs. Malong, 36 Phil.,
821.)[53]

In the instant case, there is no doubt that as Cashier/Manager, Batulanon holds the
money for administration and in trust for PCCI. Knowing that she is no longer
qualified to obtain a loan, she fraudulently used the name of her son who is likewise
disqualified to secure a loan from PCCI. Her misappropriation of the amount she
obtained from the loan is also not disputed as she even admitted receiving the
same for personal use. Although the amount received by Batulanon is reflected in
the records as part of the receivables of PCCI, damage was still caused to the latter
because the sum misappropriated by her could have been loaned by PCCI to
qualified members, or used in other productive undertakings. At any rate, the
disturbance in property rights caused by Batulaono's misappropriation is in itself
sufficient to constitute injury within the meaning of Article 315.

Considering that the amount misappropriated by Batulanon was P5,000.00, the

applicable provision is paragraph (3) of Article 315 of the Revised Penal Code,
which imposes the penalty of arresto mayor in its maximum period to prision
correccional in its minimum period, where the amount defrauded is over P200.00
but does not exceed P6,000.00. There being no modifying circumstances, the
penalty shall be imposed in its medium period. With the application of the
Indeterminate Sentence Law, Batulaon is entitled to an indeterminate penalty of
three (3) months of arresto mayor, as minimum, to one (1) year and eight (8)
months of prision correccional, as maximum.

WHEREFORE, the Decision appealed from is AFFIRMED with the

following MODIFICATIONS:
(1) In Criminal Case Nos. 3625, 3626 and 3453, Leonila Batulanon is found GUILTY
of three counts of falsification of private documents and is sentenced to suffer the
penalty of six (6) months of arresto mayor, as minimum, to four (4) years and two
(2) months of prision correccional, as maximum, for each count, and to indemnify
complainant Polomolok Credit Cooperative Incorporated the amount of P11,660.00
with interest at the rate of 6% per annum from November 28, 1994 until finality of
this judgment. The interest rate of 12% per annum shall be imposed from finality of
this judgment until its satisfaction; and

(2) In Criminal Case No. 3627, Leonila Batulanon is found GUILTY of estafa and is
sentenced to suffer the penalty of three (3) months of arresto mayor, as minimum,
to one (1) year and eight (8) months of prision correccional, as maximum. She is
likewise ordered to indemnify Polomolok Credit Cooperative Incorporated the sum
of P5,000.00 with interest at the rate of 6% per annum from November 28, 1994
until finality of this judgment. The interest rate of 12% per annum shall be imposed
from finality of this judgment until its satisfaction.

SO ORDERED.

[ G.R. NOS. 165510-33, July 28, 2006 ]

BENJAMIN ("KOKOY") T.ROMUALDEZ, PETITIONER, VS. HON.
SIMEON V. MARCELO, IN HIS OFFICIAL CAPACITY AS THE
OMBUDSMAN, AND PRESIDENTIAL COMMISSION ON GOOD
GOVERNMENT, RESPONDENTS.

DECISION

YNARES-SANTIAGO, J.:

For resolution is petitioner's Motion for Reconsideration[1] assailing the Decision

dated September 23, 2005, the dispositive portion of which states:

WHEREFORE, the petition is DISMISSED. The resolutions dated July 12, 2004 and
September 6, 2004 of the Office of the Special Prosecutor, are AFFIRMED.

SO ORDERED.[2]

Petitioner claims that the Office of the Ombudsman gravely abused its discretion in
recommending the filing of 24 informations against him for violation of Section 7 of
Republic Act (RA) No. 3019 or the Anti-Graft and Corrupt Practices Act; that the
Ombudsman cannot revive the aforementioned cases which were previously
dismissed by the Sandiganbayan in its Resolution of February 10, 2004; that the
defense of prescription may be raised even for the first time on appeal and thus
there is no necessity for the presentation of evidence thereon before the court a
quo. Thus, this Court may accordingly dismiss Criminal Case Nos. 28031-28049
pending before the Sandiganbayan and Criminal Case Nos. 04-231857-04-231860
pending before the Regional Trial Court of Manila, all on the ground of prescription.

In its Comment,[3] the Ombudsman argues that the dismissal of the informations in
Criminal Case Nos. 13406-13429 does not mean that petitioner was thereafter
exempt from criminal prosecution; that new informations may be filed by the
Ombudsman should it find probable cause in the conduct of its preliminary
investigation; that the filing of the complaint with the Presidential Commission on
Good Government (PCGG) in 1987 and the filing of the information with the
Sandiganbayan in 1989 interrupted the prescriptive period; that the absence of the
petitioner from the Philippines from 1986 until 2000 also interrupted the aforesaid
period based on Article 91 of the Revised Penal Code.

For its part, the PCGG avers in its Comment[4] that, in accordance with the 1987
Constitution and RA No. 6770 or the Ombudsman Act of 1989, the Omdudsman
need not wait for a new complaint with a new docket number for it to conduct a
preliminary investigation on the alleged offenses of the petitioner; that considering
that both RA No. 3019 and Act No. 3326 or the Act To Establish Periods of
Prescription For Violations Penalized By Special Acts and Municipal Ordinances and
to Provide When Prescription Shall Begin To Run, are silent as to whether
prescription should begin to run when the offender is absent from the Philippines,
the Revised Penal Code, which answers the same in the negative, should be
applied.

The issues for resolution are: (1) whether the preliminary investigation conducted
by the Ombudsman in Criminal Case Nos. 13406-13429 was a nullity; and (2)
whether the offenses for which petitioner are being charged have already
prescribed.

Anent the first issue, we reiterate our ruling in the assailed Decision that the
preliminary investigation conducted by the Ombudsman in Criminal Case Nos.
13406-13429 is a valid proceeding despite the previous dismissal thereof by the
Sandiganbayan in its Minute Resolution[5] dated February 10, 2004 which reads:

Crim. Cases Nos. 13406-13429-PEO. vs. BENJAMIN T. ROMUALDEZ

Considering that the Decision of the Honorable Supreme Court in G.R. Nos.
143618-41, entitled "Benjamin 'Kokoy' Romualdez vs. The Honorable
Sandiganbayan (First Division, et al.)" promulgated on July 30, 2002 annulled and
set aside the orders issued by this Court on June 8, 2000 which, among others,
denied the accused's motion to quash the informations in these cases; that in
particular the above-mentioned Decision ruled that the herein informations may be
quashed because the officer who filed the same had no authority to do so; and that
the said Decision has become final and executory on November 29, 2002, these
cases are considered DISMISSED. Let these cases be sent to the archives.

The aforesaid dismissal was effected pursuant to our ruling in Romualdez v.

Sandiganbayan[6] where petitioner assailed the Sandiganbayan's Order dated June
8, 2000 in Criminal Case Nos. 13406-13429 which denied his Motion to Quash,
terminated the preliminary investigation conducted by Prosecutor Evelyn T. Lucero
and set his arraignment for violations of Section 7 of RA No. 3019 on June 26,
2000.[7] In annulling and setting aside the aforesaid Order of the Sandiganbayan,
we held that:

In the case at bar, the flaw in the information is not a mere remediable defect of
form, as in Pecho v. Sandiganbayan where the wording of the certification in the
information was found inadequate, or in People v. Marquez, where the required
certification was absent. Here, the informations were filed by an unauthorized
party. The defect cannot be cured even by conducting another preliminary
investigation. An invalid information is no information at all and cannot be the basis
for criminal proceedings.[8]

In effect, we upheld in Romualdez v. Sandiganbayan[9] petitioner's Motion to Quash

and directed the dismissal of Criminal Case Nos. 13406-13429 because the
informations were filed by an unauthorized party, hence void.

In such a case, Section 6, Rule 117 of the Rules of Court is pertinent and
applicable. Thus:

SEC. 6. Order sustaining the motion to quash not a bar to another prosecution;
exception. - An order sustaining the motion to quash is not a bar to another
prosecution for the same offense unless the motion was based on the grounds
specified in section 3(g) and (i)[10] of this Rule.

An order sustaining a motion to quash on grounds other than extinction of criminal

liability or double jeopardy does not preclude the filing of another information for a
crime constituting the same facts. Indeed, we held in Cudia v. Court of
Appeals[11] that:

In fine, there must have been a valid and sufficient complaint or information in the
former prosecution. If, therefore, the complaint or information was insufficient
because it was so defective in form or substance that the conviction upon it could
not have been sustained, its dismissal without the consent of the accused cannot be
pleaded. As the fiscal had no authority to file the information, the dismissal of the
first information would not be a bar in petitioner's subsequent prosecution. x x x.[12]

Be that as it may, the preliminary investigation conducted by the Ombudsman in

the instant cases was not a violation of petitioner's right to be informed of the
charges against him. It is of no moment that the cases investigated by the
Ombudsman bore the same docket numbers as those cases which have already
been dismissed by the Sandiganbayan, to wit: Criminal Case Nos. 13406-13429. As
we have previously stated:

The assignment of a docket number is an internal matter designed for efficient

record keeping. It is usually written in the Docket Record in sequential order
corresponding to the date and time of filing a case.

This Court agrees that the use of the docket numbers of the dismissed cases was
merely for reference. In fact, after the new informations were filed, new docket
numbers were assigned, i.e., Criminal Cases Nos. 28031-28049 x x x.[13]

Besides, regardless of the docket numbers, the Ombudsman conducted the above-
referred preliminary investigation pursuant to our Decision in Romualdez v.
Sandiganbayan[14] when we categorically declared therein that:

The Sandiganbayan also committed grave abuse of discretion when it abruptly

terminated the reinvestigation being conducted by Prosecutor Lucero. It should be
recalled that our directive in G.R. No. 105248 for the holding of a preliminary
investigation was based on our ruling that the right to a preliminary investigation is
a substantive, rather than a procedural right. Petitioner's right was violated when
the preliminary investigation of the charges against him were conducted by an
officer without jurisdiction over the said cases. It bears stressing that our directive
should be strictly complied with in order to achieve its objective of affording
petitioner his right to due process.[15]

Anent the issue on the prescription of the offenses charged, we should first resolve
the question of whether this Court may validly take cognizance of and resolve the
aforementioned issue considering that as we have said in the assailed Decision,
"this case has never progressed beyond the filing of the informations against the
petitioner"[16] and that "it is only prudent that evidence be gathered through trial on
the merits to determine whether the offense charged has already
prescribed."[17] We reconsider our stance and shall rule in the affirmative.

Rule 117 of the Rules of Court provides that the accused may, at any time before
he enters his plea, move to quash the complaint and information[18] on the ground
that the criminal action or liability has been extinguished,[19] which ground includes
the defense of prescription considering that Article 89 of the Revised Penal Code
enumerates prescription as one of those grounds which totally extinguishes criminal
liability. Indeed, even if there is yet to be a trial on the merits of a criminal case,
the accused can very well invoke the defense of prescription.

Thus, the question is whether or not the offenses charged in the subject criminal
cases have prescribed? We held in the case of Domingo v. Sandiganbayan[20] that:
In resolving the issue of prescription of the offense charged, the following should be
considered: (1) the period of prescription for the offense charged; (2) the time the
period of prescription starts to run; and (3) the time the prescriptive period was
interrupted.[21]

Petitioner is being charged with violations of Section 7 of RA No. 3019 for failure to
file his Statements of Assets and Liabilities for the period 1967-1985 during his
tenure as Ambassador Extraordinary and Plenipotentiary and for the period 1963-
1966 during his tenure as Technical Assistant in the Department of Foreign Affairs.

Section 11 of RA No. 3019 provides that all offenses punishable therein shall
prescribe in 15 years. Significantly, this Court already declared in the case of People
v. Pacificador[22] that:

It appears however, that prior to the amendment of Section 11 of R.A. No. 3019 by
B.P. Blg. 195 which was approved on March 16, 1982, the prescriptive period for
offenses punishable under the said statute was only ten (10) years. The longer
prescriptive period of fifteen (15) years, as provided in Section 11 of R.A. No. 3019
as amended by B.P. Blg. 195, does not apply in this case for the reason that the
amendment, not being favorable to the accused (herein private respondent),
cannot be given retroactive effect. Hence, the crime prescribed on January 6, 1986
or ten (10) years from January 6, 1976.[23]

Thus, for offenses allegedly committed by the petitioner from 1962 up to March 15,
1982, the same shall prescribe in 10 years. On the other hand, for offenses
allegedly committed by the petitioner during the period from March 16, 1982 until
1985, the same shall prescribe in 15 years.

As to when these two periods begin to run, reference is made to Act No. 3326
which governs the computation of prescription of offenses defined by and penalized
under special laws. Section 2 of Act No. 3326 provides:

SEC. 2. Prescription shall begin to run from the day of the commission of the
violation of the law, and if the same be not known at the time, from the discovery
thereof and the institution of judicial proceedings for its investigation and
punishment.

The prescription shall be interrupted when proceedings are instituted against the
guilty person, and shall begin to run again if the proceedings are dismissed for
reasons not constituting jeopardy.

In the case of People v. Duque,[24] we construed the aforequoted provision,

specifically the rule on the running of the prescriptive period as follows:

In our view, the phrase "institution of judicial proceedings for its investigation and
punishment" may be either disregarded as surplusage or should be deemed
preceded by the word "until." Thus, Section 2 may be read as:
"Prescription shall begin to run from the day of the commission of the violation of
the law; and if the same be not known at the time, from the discovery thereof;"

or as:

"Prescription shall begin to run from the day of the commission of the violation of
the law, and if the same be not known at the time, from the discovery thereof
and until institution of judicial proceedings for its investigation and punishment."
(Emphasis supplied)[25]

Thus, this Court rules that the prescriptive period of the offenses herein began to
run from the discovery thereof or on May 8, 1987, which is the date of the
complaint filed by the former Solicitor General Francisco I. Chavez against the
petitioner with the PCGG.

In the case of Presidential Ad Hoc Fact-Finding Committee on Behest Loans v.

Desierto[26] this Court already took note that:

In cases involving violations of R.A. No. 3019 committed prior to the February 1986
EDSA Revolution that ousted President Ferdinand E. Marcos, we ruled that the
government as the aggrieved party could not have known of the violations at the
time the questioned transactions were made. Moreover, no person would have
dared to question the legality of those transactions. Thus, the counting of the
prescriptive period commenced from the date of discovery of the offense in 1992
after an exhaustive investigation by the Presidential Ad Hoc Committee on Behest
Loans.[27]

However, both respondents in the instant case aver that, applying Article 91 of the
Revised Penal Code suppletorily, the absence of the petitioner from the Philippines
from 1986 until April 27, 2000 prevented the prescriptive period for the alleged
offenses from running.

We disagree.

Section 2 of Act. No. 3326 is conspicuously silent as to whether the absence of the
offender from the Philippines bars the running of the prescriptive period. The
silence of the law can only be interpreted to mean that Section 2 of Act No. 3326
did not intend such an interruption of the prescription unlike the explicit mandate of
Article 91. Thus, as previously held:

Even on the assumption that there is in fact a legislative gap caused by such an
omission, neither could the Court presume otherwise and supply the details thereof,
because a legislative lacuna cannot be filled by judicial fiat. Indeed, courts may not,
in the guise of the interpretation, enlarge the scope of a statute and include therein
situations not provided nor intended by the lawmakers. An omission at the time of
the enactment, whether careless or calculated, cannot be judicially supplied
however after later wisdom may recommend the inclusion. Courts are not
authorized to insert into the law what they think should be in it or to supply what
they think the legislature would have supplied if its attention has been called to the
omission.[28]

The only matter left to be resolved is whether the filing of the complaint with the
PCGG in 1987 as well as the filing of the informations with the Sandiganbayan to
initiate Criminal Case Nos. 13406-13429 in 1989 interrupted the running of the
prescriptive period such that when the Ombudsman directed petitioner to file his
counter-affidavit on March 3, 2004, the offenses have already prescribed.

Under Section 2 of Act No. 3326, the prescriptive period shall be interrupted "when
proceedings are instituted against the guilty person." However, there is no such
proceeding instituted against the petitioner to warrant the tolling of the prescriptive
periods of the offenses charged against him.

In Romualdez v. Sandiganbayan,[29] petitioner averred that PCGG acted without

jurisdiction and/or grave abuse of discretion in conducting a preliminary
investigation of cases not falling within its competence.[30] This Court, in its resolve
to "deal with the merits of the case to remove the possibility of any
misunderstanding as to the course which it wishes petitioner's cases in the
Sandiganbayan to take"[31]declared invalid -

the preliminary investigation conducted by the PCGG over the 24 offenses ascribed
to Romualdez (of failure to file annual statements of assets and liabilities), for lack
of jurisdiction of said offenses.[32]

In Romualdez v. Sandiganbayan,[33] petitioner assailed the validity of the

informations filed with the Sandiganbayan in Criminal Case Nos. 13406-13429
considering that the same were subscribed and filed by the PCGG. In granting
petitioner's plea, this Court held, thus:

Here, the informations were filed by an unauthorized party. The defect cannot be
cured by conducting another preliminary investigation. An invalid information is no
information at all and cannot be the basis for criminal proceedings.[34]

Indeed, the nullity of the proceedings initiated by then Solicitor General Chavez in
1987 with the PCGG and by the PCGG with the Sandiganbayan in 1989 is judicially
settled. In contemplation of the law, no proceedings exist that could have merited
the suspension of the prescriptive periods.

Besides, the only proceeding that could interrupt the running of prescription is that
which is filed or initiated by the offended party before the appropriate body or
office. Thus, in the case of People v. Maravilla,[35] this Court ruled that the filing of
the complaint with the municipal mayor for purposes of preliminary investigation
had the effect of suspending the period of prescription. Similarly, in the case
of Llenes v. Dicdican,[36] this Court held that the filing of a complaint against a
public officer with the Ombudsman tolled the running of the period of prescription.
In the case at bar, however, the complaint was filed with the wrong body, the
PCGG. Thus, the same could not have interrupted the running of the prescriptive
periods.

However, in his Dissenting Opinion, Mr. Justice Carpio contends that the offenses
charged against the petitioner could not have prescribed because the latter was
absent from the Philippines from 1986 to April 27, 2000 and thus the prescriptive
period did not run from the time of discovery on May 8, 1987, citing Article 91 of
the Revised Penal Code which provides that "[t]he term of prescription should not
run when the offender is absent from the Philippine Archipelago."

Mr. Justice Carpio argues that -

Article 10 of the same Code makes Article 91 "x x x supplementary to [special

laws], unless the latter should x x x provide the contrary." Nothing in RA 3019
prohibits the supplementary application of Article 91 to that law. Hence, applying
Article 91, the prescriptive period in Section 11 of RA 3019, before and after its
amendment, should run only after petitioner returned to this jurisdiction on 27 April
2000.

There is no gap in the law. Where the special law is silent, Article 10 of the RPC
applies suppletorily, as the Court has held in a long line of decisions since 1934,
starting with People v. Moreno. Thus, the Court has applied suppletorily various
provisions of the RPC to resolve cases where the special laws are silent on the
matters in issue. The law on the applicability of Article 10 of the RPC is thus well-
settled, with the latest reiteration made by this Court in 2004 in Jao Yu v. People.

He also expresses his apprehension on the possible effects of the ruling of the
Majority Opinion and argues that -

The accused should not have the sole discretion of preventing his own prosecution
by the simple expedient of escaping from the State's jurisdiction. x x x An accused
cannot acquire legal immunity by being a fugitive from the State's jurisdiction. x x
x.

To allow an accused to prevent his prosecution by simply leaving this jurisdiction

unjustifiably tilts the balance of criminal justice in favor of the accused to the
detriment of the State's ability to investigate and prosecute crimes. In this age of
cheap and accessible global travel, this Court should not encourage individuals
facing investigation or prosecution for violation of special laws to leave Philippine
jurisdiction to sit-out abroad the prescriptive period. The majority opinion
unfortunately chooses to lay the basis for such anomalous practice.
With all due respect, we beg to disagree.

Article 10 of the Revised Penal Code provides:

ART. 10. Offenses not subject to the provisions of this Code. - Offenses which are
or in the future may be punishable under special laws are not subject to the
provisions of this Code. This Code shall be supplementary to such laws, unless the
latter should specially provide the contrary.

Pursuant thereto, one may be tempted to hastily conclude that a special law such
as RA No. 3019 is supplemented by the Revised Penal Code in any and all cases. As
it is, Mr. Justice Carpio stated in his Dissenting Opinion that -

There is no gap in the law. Where the special law is silent, Article 10 of the RPC
applies suppletorily, as the Court has held in a long line of decisions since 1934,
starting with People v. Moreno. Thus, the Court has applied suppletorily various
provisions of the RPC to resolve cases where the special laws are silent on the
matters in issue. The law on the applicability of Article 10 of the RPC is thus well-
settled, with the latest reiteration made by this Court in 2004 in Jao Yu v. People.

However, it must be pointed out that the suppletory application of the Revised
Penal Code to special laws, by virtue of Article 10 thereof, finds relevance only
when the provisions of the special law are silent on a particular matter as evident
from the cases cited and relied upon in the Dissenting Opinion:

In the case of People v. Moreno,[37] this Court, before ruling that the subsidiary
penalty under Article 39 of the Revised Penal Code may be applied in cases of
violations of Act No. 3992 or the Revised Motor Vehicle Law, noted that the special
law did not contain any provision that the defendant can be sentenced with
subsidiary imprisonment in case of insolvency.

In the case of People v. Li Wai Cheung,[38] this Court applied the rules on the
service of sentences provided in Article 70 of the Revised Penal Code in favor of the
accused who was found guilty of multiple violations of RA No. 6425 or The
Dangerous Drugs Act of 1972 considering the lack of similar rules under the special
law.

In the case of People v. Chowdury,[39] the Court applied Articles 17, 18 and 19 of
the Revised Penal Code to define the words "principal," "accomplices" and
"accessories" under RA No. 8042 or the Migrant Workers and Overseas Filipinos Act
of 1995 because it was not defined therein although it referred to the same terms
in enumerating the persons liable for the crime of illegal recruitment.

In the case at bar, the silence of RA No. 3019 on the question of whether or not the
absence of the accused from the Philippines prevents or tolls the running of the
prescriptive period is more apparent than real.
Even before the enactment of RA No. 3019 in 1960, Act No. 3326 was already in
effect as early as December 4, 1926. Section 3 thereof categorically defines "special
acts" as "acts defining and penalizing violations of the law not included in
the Penal Code".

Thus, in the case of Presidential Ad Hoc Fact-Finding Committee on Behest Loans v.

Desierto,[40] this Court was categorical in ruling that -

The law on prescription of offenses is found in Articles 90 and 91 of the Revised

Penal Code for offenses punishable thereunder. For those penalized under special
laws, Act No. 3326 applies.

Section 2 of Act No. 3326 provides that the prescription shall begin to run from the
day of the commission of the violation of the law, and if the same be not known at
the time, from the discovery thereof and the institution of judicial proceedings for
its investigation and punishment. The running of the prescriptive period shall
be interrupted when proceedings are instituted against the guilty person,
and shall begin to run again if the proceedings are dismissed for reasons
not constituting jeopardy. Clearly, Section 2 of Act No. 3326 did not provide that
the absence of the accused from the Philippines prevents the running of the
prescriptive period. Thus, the only inference that can be gathered from the
foregoing is that the legislature, in enacting Act No. 3326, did not consider the
absence of the accused from the Philippines as a hindrance to the running of the
prescriptive period. Expressio unius est exclusio alterius. To elaborate, -

Indeed, it is an elementary rule of statutory construction that the express mention

of one person, thing, act, or consequence excludes all others. This rule is expressed
in the familiar maxim "expressio unius est exclusio alterius." Where a statute, by its
terms, is expressly limited to certain matters, it may not, by interpretation or
construction, be extended to others. The rule proceeds from the premise that the
legislature would not have made specified enumerations in a statute had the
intention been not to restrict its meaning and to confine its terms to those
expressly mentioned.[41]

Had the legislature intended to include the accused's absence from the Philippines
as a ground for the interruption of the prescriptive period in special laws, the same
could have been expressly provided in Act No. 3326. A case in point is RA No. 8424
or the Tax Reform Act of 1997 where the legislature made its intention clear and
was thus categorical that "

SEC. 281. Prescription for Violations of any Provision of this Code - All
violations of any provision of this Code shall prescribe after five (5) years.

Prescription shall begin to run from the day of the commission of the violation of
the law, and if the same be not known at the time, from the discovery thereof and
the institution of judicial proceedings for its investigation and punishment.
The prescription shall be interrupted when proceedings are instituted against the
guilty persons and shall begin to run again if the proceedings are dismissed for
reasons not constituting jeopardy.

The term of prescription shall not run when the offender is absent from the
Philippines. (Emphasis supplied)

According to Mr. Justice Carpio, Article 91 of the Revised Penal Code fills the so-
called "gap" in Act No. 3326. Thus, while Act No. 3326 governs the operation of the
prescriptive period for violations of R.A. No. 3019, Article 91 of the Revised Penal
Code can and shall still be applied in cases where the accused is absent from the
Philippines. In effect, Article 91 would supplement Act No. 3326.

This could not have been the intention of the framers of the law.

While it is true that Article 10 of the Revised Penal Code makes the Code suppletory
to special laws, however, Act No. 3326 cannot fall within the ambit of "special law"
as contemplated and used in Article 10 of the RPC.

In the case of United States v. Serapio,[42] the Court had the occasion to interpret
the term "special laws" mentioned in Article 7 of then Penal Code of the Philippines,
which is now Article 10 of the Revised Penal Code, as referring to penal laws that
punish acts not defined and penalized by the Penal Code of the Philippines. Thus -

This contention makes it necessary to define "special laws," as that phrase is used
in article 7 of the Penal Code. Does this phrase "leyes especiales," as used in the
Penal Code (article 7) have the meaning applied to the phrase "special laws," as the
same is generally used? x x x It is confidently contended that the phrase "leyes
especiales," as used in the Penal Code (article 7) is not used with this general
signification: In fact, said phrase may refer not to a special law as above defined,
but to a general law. A careful reading of said article 7 clearly indicates that the
phrase "leyes especiales" was not used to signify "special laws" in the general
signification of that phrase. The article, it will be noted, simply says, in effect, that
when a crime is made punishable under some other law than the Penal Code, it (the
crime) is not subject to the provisions of said code.[43]

Even if we consider both Act No. 3326 and Article 91 as supplements to RA No.
3019, the same result would obtain. A conflict will arise from the contemporaneous
application of the two laws. The Revised Penal Code explicitly states that the
absence of the accused from the Philippines shall be a ground for the tolling of the
prescriptive period while Act No. 3326 does not. In such a situation, Act No. 3326
must prevail over Article 91 because it specifically and directly applies to special
laws while the Revised Penal Code shall apply to special laws only suppletorily and
only when the latter do not provide the contrary. Indeed, elementary rules of
statutory construction dictate that special legal provisions must prevail over general
ones.

The majority notes Mr. Justice Carpio's reservations about the effects of ruling that
the absence of the accused from the Philippines shall not suspend the running of
the prescriptive period. Our duty, however, is only to interpret the law. To go
beyond that and to question the wisdom or effects of the law is certainly beyond
our constitutionally mandated duty. As we have already explained -

Even on the assumption that there is in fact a legislative gap caused by such an
omission, neither could the Court presume otherwise and supply the details thereof,
because a legislative lacuna cannot be filled by judicial fiat. Indeed, courts may not,
in the guise of interpretation, enlarge the scope of a statute and include therein
situations not provided nor intended by the lawmakers. An omission at the time of
the enactment, whether careless or calculated, cannot be judicially supplied
however after later wisdom may recommend the inclusion. Courts are not
authorized to insert into the law what they think should be in it or to supply what
they think the legislature would have supplied if its attention has been called to the
omission.[44]

Mr. Justice Carpio also remarks that the liberal interpretation of the statute of
limitations in favor of the accused only relates to the following issues: (1)
retroactive or prospective application of laws providing or extending the prescriptive
period; (2) the determination of the nature of the felony committed vis-à-vis the
applicable prescriptive period; and (3) the reckoning of when the prescriptive
period runs. Therefore, the aforementioned principle cannot be utilized to support
the Majority Opinion's conclusion that the prescriptive period in a special law
continues to run while the accused is abroad.

We take exception to the foregoing proposition.

We believe that a liberal interpretation of the law on prescription in criminal cases

equally provides the authority for the rule that the prescriptive period runs while
the accused is outside of Philippine jurisdiction. The nature of the law on
prescription of penal statutes supports this conclusion. In the old but still relevant
case of People v. Moran,[45] this Court extensively discussed the rationale behind
and the nature of prescription of penal offenses -

"We should at first observe that a mistake is sometimes made in applying to

statutes of limitation in criminal suits the construction that has been given to
statutes of limitation in civil suits. The two classes of statutes, however, are
essentially different. In civil suits the statute is interposed by the legislature as an
impartial arbiter between two contending parties. In the construction of the statute,
therefore, there is no intendment to be made in favor of either party. Neither
grants the right to the other; there is therefore no grantor against whom the
ordinary presumptions, of construction are to be made. But it is, otherwise when a
statute of limitation is granted by the State. Here the State is the grantor,
surrendering by act of grace its rights to prosecute, and declaring the offense to be
no longer the subject of prosecution.' The statute is not a statute of process, to
be scantily and grudgingly applied, but an amnesty, declaring that after a
certain time oblivion shall be cast over the offence; that the offender shall
be at liberty to return to his country, and resume his immunities as a
citizen and that from henceforth he may cease to preserve the proofs of his
innocence, for the proofs of his guilt are blotted out. Hence it is that statutes
of limitation are to be liberally construed in favor of the defendant, not only
because such liberality of construction belongs to all acts of amnesty and grace, but
because the very existence of the statute, is a recognition and notification by the
legislature of the fact that time, while it gradually wears out proofs of innocence,
has assigned to it fixed and positive periods in which it destroys proofs of guilt.
Independently of these views, it must be remembered that delay in instituting
prosecutions is not only productive of expense to the State, but of peril to public
justice in the attenuation and distortion, even by mere natural lapse of memory, of
testimony. It is the policy of the law that prosecutions should be prompt, and that
statutes, enforcing such promptitude should be vigorously maintained. They are not
merely acts of grace, but checks imposed by the State upon itself, to exact vigilant
activity from its subalterns, and to secure for criminal trials the best evidence that
can be obtained." (Emphasis supplied)

Indeed, there is no reason why we should deny petitioner the benefits accruing
from the liberal construction of prescriptive laws on criminal statutes. Prescription
emanates from the liberality of the State. Any bar to or cause of interruption in the
operation of prescriptive periods cannot simply be implied nor derived by mere
implication. Any diminution of this endowment must be directly and expressly
sanctioned by the source itself, the State. Any doubt on this matter must be
resolved in favor of the grantee thereof, the accused.

The foregoing conclusion is logical considering the nature of the laws on

prescription. The exceptions to the running of or the causes for the interruption of
the prescriptive periods may and should not be easily implied. The prescriptive
period may only be prevented from operating or may only be tolled for reasons
explicitly provided by the law.

In the case of People v. Pacificador,[46] we ruled that:

It bears emphasis, as held in a number of cases, that in the interpretation of the

law on prescription of crimes, that which is more favorable to the accused is to be
adopted. The said legal principle takes into account the nature of the law on
prescription of crimes which is an act of amnesty and liberality on the part of the
state in favor of the offender. In the case of People v. Moran, this Court amply
discussed the nature of the statute of limitations in criminal cases, as follows:

The statute is not statute of process, to be scantily and grudgingly applied, but an
amnesty, declaring that after a certain time oblivion shall be cast over the offense;
that the offender shall be at liberty to return to his country, and resume his
immunities as a citizen; and that from henceforth he may cease to preserve the
proofs of his innocence, for the proofs of his guilt are blotted out. Hence, it is that
statues of limitation are to be liberally construed in favor of the defendant, not only
because such liberality of construction belongs to all acts of amnesty and grace, but
because the very existence of the statute is a recognition and notification by the
legislature of the fact that time, while it gradually wears out proofs of innocence,
has assigned to it fixed and positive periods in which it destroys proofs of guilt.[47]

In view of the foregoing, the applicable 10-and-15-year prescriptive periods in the

instant case, were not interrupted by any event from the time they began to run on
May 8, 1987. As a consequence, the alleged offenses committed by the petitioner
for the years 1963-1982 prescribed 10 years from May 8, 1987 or on May 8, 1997.
On the other hand, the alleged offenses committed by the petitioner for the years
1983-1985 prescribed 15 years from May 8, 1987 or on May 8, 2002.

Therefore, when the Office of the Special Prosecutor initiated the preliminary
investigation of Criminal Case Nos. 13406-13429 on March 3, 2004 by requiring the
petitioner to submit his counter-affidavit, the alleged offenses subject therein have
already prescribed. Indeed, the State has lost its right to prosecute petitioner for
the offenses subject of Criminal Case Nos. 28031-28049 pending before the
Sandiganbayan and Criminal Case Nos. 04-231857-04-231860 pending before the
Regional Trial Court of Manila.

WHEREFORE, premises considered, petitioner's Motion for Reconsideration

is GRANTED. Criminal Case Nos. 28031-28049 pending before the Sandiganbayan
and Criminal Case Nos. 04-231857-04-231860 pending before the Regional Trial
Court of Manila are all hereby ordered DISMISSED.

[ G.R. No. 102007, September 02, 1994 ]

PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS.
ROGELIO BAYOTAS Y CORDOVA, ACCUSED-APPELLANT.

DECISION

ROMERO, J.:

In Criminal Case No. C-3217 filed before Branch 16, RTC Roxas City, Rogelio
Bayotas y Cordova was charged with Rape and eventually convicted thereof on June
19, 1991 in a decision penned by Judge Manuel E. Autajay. Pending appeal of his
conviction, Bayotas died on February 4, 1992 at the National Bilibid Hospital due to
cardio respiratory arrest secondary to hepatic encephalopathy secondary to hipato
carcinoma gastric malingering. Consequently, the Supreme Court in its Resolution
of May 20, 1992 dismissed the criminal aspect of the appeal. However, it required
the Solicitor General to file its comment with regard to Bayotas' civil liability arising
from his commission of the offense charged.

In his comment, the Solicitor General expressed his view that the death of accused-
appellant did not extinguish his civil liability as a result of his commission of the
offense charged. The Solicitor General, relying on the case
of People v. Sendaydiego[1] insists that the appeal should still be resolved for the
purpose of reviewing his conviction by the lower court on which the civil liability is
based.

Counsel for the accused-appellant, on the other hand, opposed the view of the
Solicitor General arguing that the death of the accused while judgment of conviction
is pending appeal extinguishes both his criminal and civil penalties. In support of
his position, said counsel invoked the ruling of the Court of Appeals
in People v. Castillo and Ocfemia[2] which held that the civil obligation in a criminal
case takes root in the criminal liability and, therefore, civil liability is extinguished if
accused should die before final judgment is rendered.

We are thus confronted with a single issue: Does death of the accused pending
appeal of his conviction extinguish his civil liability?

In the aforementioned case of People v. Castillo, this issue was settled in the
affirmative. This same issue posed therein was phrased thus: Does the death of
Alfredo Castillo affect both his criminal responsibility and his civil liability as a
consequence of the alleged crime?

It resolved this issue thru the following disquisition:

"Article 89 of the Revised Penal Code is the controlling statute. It reads, in part:

‘ART. 89. How criminal liability is totally extinguished. - Criminal liability is totally
extinguished:

1. By the death of the convict, as to the personal penalties; and as to

the pecuniary penalties liability therefor is extinguished only when the
death of the offender occurs before final judgment;’

With reference to Castillo's criminal liability, there is no question. The law is plain.
Statutory construction is unnecessary. Said liability is extinguished.

The civil liability, however, poses a problem. Such liability is extinguished only
when the death of the offender occurs before final judgment. Saddled upon us is
the task of ascertaining the legal import of the term 'final judgment.' Is it final
judgment as contradistinguished from an interlocutory order? Or, is it a judgment
which is final and executory?

We go to the genesis of the law. The legal precept contained in Article 89 of the
Revised Penal Code heretofore transcribed is lifted from Article 132 of the Spanish
El Codigo Penal de 1870 which, in part, recites:

‘La responsabilidad penal se extingue.

1. Por la muerte del reo en cuanto a las penas personales siempre, y

respecto a las pecuniarias, solo cuando a su fallecimiento no hubiere
recaido sentencia firme.’

xxx xxx xx
x

The code of 1870 x x x it will be observed employs the term ‘sentencia firme.’ What
is ‘sentencia firme’ under the old statute?

XXVIII Enciclopedia Juridica Española, p. 473, furnishes the ready answer: It says:

‘SENTENCIA FIRME. La sentencia que adquiere la fuerza de las definitivas por no

haberse utilizado por las partes litigantes recurso alguno contra ella dentro de los
terminos y plazos legales concedidos al efecto.’

‘Sentencia firme’ really should be understood as one which is definite. Because, it is

only when judgment is such that, as Medina y Maranon puts it, the crime is
confirmed – ‘en condena determinada;’ or, in the words of Groizard, the guilt of the
accused becomes - ‘una verdad legal.’ Prior thereto, should the accused die,
according to Viada, 'no hay legalmente, en tal caso, ni reo, ni delito, ni
responsabilidad criminal de ninguna clase.' And, as Judge Kapunan well explained,
when a defendant dies before judgment becomes executory, 'there cannot be any
determination by final judgment whether or not the felony upon which the civil
action might arise exists,' for the simple reason that 'there is no party defendant.'
(I Kapunan, Revised Penal Code, Annotated, p. 421. Senator Francisco holds the
same view. Francisco, Revised Penal Code, Book One, 2nd ed., pp. 859-860)

The legal import of the term 'final judgment' is similarly reflected in the Revised
Penal Code. Articles 72 and 78 of that legal body mention the term 'final judgment'
in the sense that it is already enforceable. This also brings to mind Section 7, Rule
116 of the Rules of Court which states that a judgment in a criminal case becomes
final 'after the lapse of the period for perfecting an appeal or when the sentence
has been partially or totally satisfied or served, or the defendant has expressly
waived in writing his right to appeal.'

By fair intendment, the legal precepts and opinions here collected funnel down to
one positive conclusion: The term final judgment employed in the Revised Penal
Code means judgment beyond recall. Really, as long as a judgment has not become
executory, it cannot be truthfully said that defendant is definitely guilty of the
felony charged against him.

Not that the meaning thus given to final judgment is without reason. For where, as
in this case, the right to institute a separate civil action is not reserved, the decision
to be rendered must, of necessity, cover 'both the criminal and the civil aspects of
the case.' People vs. Yusico (November 9, 1942), 2 O.G., No. 100, p. 964. See
also: People vs. Moll, 68 Phil., 626, 634; Francisco, Criminal Procedure, 1958 ed.,
Vol. I, pp. 234, 236. Correctly, Judge Kapunan observed that as 'the civil action is
based solely on the felony committed and of which the offender might be found
guilty, the death of the offender extinguishes the civil liability.' I Kapunan, Revised
Penal Code, Annotated, supra.

Here is the situation obtaining in the present case: Castillo's criminal liability is out.
His civil liability is sought to be enforced by reason of that criminal liability. But
then, if we dismiss, as we must, the criminal action and let the civil aspect remain,
we will be faced with the anomalous situation whereby we will be called upon to
clamp civil liability in a case where the source thereof - criminal liability - does not
exist. And, as was well stated in Bautista, et al. vs. Estrella, et al., CA-G.R. No.
19226-R, September 1, 1958, 'no party can be found and held criminally liable in a
civil suit,' which solely would remain if we are to divorce it from the criminal
proceeding."

This ruling of the Court of Appeals in the Castillo case[3] was adopted by the
Supreme Court in the cases
of People of the Philippines v. Bonifacio Alison, et al.,[4] People of the Philippines v. J
aime Jose, et al.[5] and People of the Philippines v. Satorre[6] by dismissing the
appeal in view of the death of the accused pending appeal of said cases.

As held by then Supreme Court Justice Fernando in the Alison case:

"The death of accused-appellant Bonifacio Alison having been established, and

considering that there is as yet no final judgment in view of the pendency of the
appeal, the criminal and civil liability of the said accused-appellant Alison was
extinguished by his death (Art. 89, Revised Penal Code; Reyes' Criminal Law, 1971
Rev. Ed., p. 717, citing People v. Castillo and Ofemia C.A., 56 O.G. 4045);
consequently, the case against him should be dismissed.”

On the other hand, this Court in the subsequent cases

of Buenaventura Belamala v. Marcelino Polinar[7] and Lamberto Torrijos v. The Hono
rable Court of Appeals[8] ruled differently. In the former, the issue decided by this
court was: Whether the civil liability of one accused of physical injuries who died
before final judgment is extinguished by his demise to the extent of barring any
claim therefor against his estate. It was the contention of the administrator-
appellant therein that the death of the accused prior to final judgment extinguished
all criminal and civil liabilities resulting from the offense, in view of Article 89,
paragraph 1 of the Revised Penal Code. However, this court ruled therein:

"We see no merit in the plea that the civil liability has been extinguished, in view of
the provisions of the Civil Code of the Philippines of 1950 (Rep. Act No. 386) that
became operative eighteen years after the revised Penal Code. As pointed out by
the Court below, Article 33 of the Civil Code establishes a civil action for damages
on account of physical injuries,
entirely separate and distinct from the criminal action.

‘ART. 33. In cases of defamation, fraud, and physical injuries, a civil action for
damages, entirely separate and distinct from the criminal action, may be brought
by the injured party. Such civil action shall proceed independently of the criminal
prosecution, and shall require only a preponderance of evidence.’

Assuming that for lack of express reservation, Belamala's civil action for damages
was to be considered instituted together with the criminal action still, since both
proceedings were terminated without final adjudication, the civil action of the
offended party under Article 33 may yet be enforced separately."

In Torrijos, the Supreme Court held that:

"x x x xx
x xxx

It should be stressed that the extinction of civil liability follows the extinction of the
criminal liability under Article 89, only when the civil liability arises from the
criminal act as its only basis. Stated differently, where the civil liability does not
exist independently of the criminal responsibility, the extinction of the latter by
death, ipso facto extinguishes the former, provided, of course, that death
supervenes before final judgment. The said principle does not apply in instant case
wherein the civil liability springs neither solely nor originally from the crime itself
but from a civil contract of purchase and sale. (Italics ours)

xxx xx
x x x x."

In the above case, the court was convinced that the civil liability of the accused who
was charged with estafa could likewise trace its genesis to Articles 19, 20 and 21 of
the Civil Code since said accused had swindled the first and second vendees of the
property subject matter of the contract of sale. It therefore concluded:
"Consequently, while the death of the accused herein extinguished his criminal
liability including fine, his civil liability based on the laws of human relations
remains."
Thus it allowed the appeal to proceed with respect to the civil liability of the
accused, notwithstanding the extinction of his criminal liability due to his death
pending appeal of his conviction.

To further justify its decision to allow the civil liability to survive, the court relied on
the following ratiocination: Since Section 21, Rule 3 of the Rules of Court[9] requires
the dismissal of all money claims against the defendant whose death occurred prior
to the final judgment of the Court of First Instance (CFI), then it can be inferred
that actions for recovery of money may continue to be heard on appeal, when the
death of the defendant supervenes after the CFI had rendered its judgment. In
such case, explained this tribunal, "the name of the offended party shall be included
in the title of the case as plaintiff-appellee and the legal representative or the heirs
of the deceased-accused should be substituted as defendants-appellants."

It is, thus, evident that as jurisprudence evolved from Castillo to Torrijos, the rule
established was that the survival of the civil liability depends on whether the same
can be predicated on sources of obligations other than delict. Stated differently, the
claim for civil liability is also extinguished together with the criminal action if it were
solely based thereon, i.e., civil liability ex delicto.

However, the Supreme Court in People v. Sendaydiego, et al.[10] departed from this
long-established principle of law. In this case, accused Sendaydiego was charged
with and convicted by the lower court of malversation thru falsification of public
documents. Sendaydiego's death supervened during the pendency of the appeal of
his conviction.

This court in an unprecedented move resolved to dismiss Sendaydiego's appeal but

only to the extent of his criminal liability. His civil liability was allowed to survive
although it was clear that such claim thereon was exclusively dependent on the
criminal action already extinguished. The legal import of such decision was for the
court to continue exercising appellate jurisdiction over the entire appeal, passing
upon the correctness of Sendaydiego's conviction despite dismissal of the criminal
action, for the purpose of determining if he is civilly liable. In doing so, this Court
issued a Resolution of July 8, 1977 stating thus:

"The claim of complainant Province of Pangasinan for the civil liability survived
Sendaydiego because his death occurred after final judgment was rendered by the
Court of First Instance of Pangasinan, which convicted him of three complex crimes
of malversation through falsification and ordered him to indemnify the Province in
the total sum of P61,048.23 (should be P57,048.23).

The civil action for the civil liability is deemed impliedly instituted with the criminal
action in the absence of express waiver or its reservation in a separate action (Sec.
1, Rule 111 of the Rules of Court). The civil action for the civil liability is separate
and distinct from the criminal action (People and Manuel vs. Coloma, 105 Phil.
1287; Roa vs. De la Cruz, 107 Phil. 8).
When the action is for the recovery of money and the defendant dies before final
judgment in the Court of First Instance, it shall be dismissed to be prosecuted in
the manner especially provided in Rule 87 of the Rules of Court (Sec. 21, Rule 3 of
the Rules of Court).

The implication is that, if the defendant dies after a money judgment had been
rendered against him by the Court of First Instance, the action survives him. It may
be continued on appeal (Torrijos vs. Court of Appeals, L-40336, October 24, 1975;
67 SCRA 394).

The accountable public officer may still be civilly liable for the funds improperly
disbursed although he has no criminal liability (U.S. vs. Elvina, 24 Phil. 230;
Philippine National Bank vs. Tugab, 66 Phil. 583).

In view of the foregoing, notwithstanding the dismissal of the appeal of the

deceased Sendaydiego insofar as his criminal liability is concerned, the Court
Resolved to continue exercising appellate jurisdiction over his possible civil liability
for the money claims of the Province of Pangasinan arising from the alleged
criminal acts complained of, as if no criminal case had been instituted against him,
thus making applicable, in determining his civil liability, Article 30 of the Civil Code
x x x and, for that purpose, his counsel is directed to inform this Court within ten
(10) days of the names and addresses of the decedent's heirs or whether or not his
estate is under administration and has a duly appointed judicial administrator. Said
heirs or administrator will be substituted for the deceased insofar as the civil action
for the civil liability is concerned (Secs. 16 and 17, Rule 3, Rules of Court)."

Succeeding cases[11] raising the identical issue have maintained adherence to our
ruling in Sendaydiego; in other words, they were a reaffirmance of our
abandonment of the settled rule that a civil liability solely anchored on the criminal
(civil liability ex delicto) is extinguished upon dismissal of the entire appeal due to
the demise of the accused.

But was it judicious to have abandoned this old ruling? A re-examination of our
decision in Sendaydiego impels us to revert to the old ruling.

To restate our resolution of July 8, 1977 in Sendaydiego: The resolution of the civil
action impliedly instituted in the criminal action can proceed irrespective of the
latter's extinction due to death of the accused pending appeal of his conviction,
pursuant to Article 30 of the Civil Code and Section 21, Rule 3 of the Revised Rules
of Court.

Article 30 of the Civil Code provides:

"When a separate civil action is brought to demand civil liability arising from a
criminal offense, and no criminal proceedings are instituted during the pendency of
the civil case, a preponderance of evidence shall likewise be sufficient to prove the
act complained of."
Clearly, the text of Article 30 could not possibly lend support to the ruling
in Sendaydiego. Nowhere in its text is there a grant of authority to continue
exercising appellate jurisdiction over the accused's civil liability ex delicto when his
death supervenes during appeal. What Article 30 recognizes is an alternative and
separate civil action which may be brought to demand civil liability arising from a
criminal offense independently of any criminal action. In the event that no criminal
proceedings are instituted during the pendency of said civil case, the quantum of
evidence needed to prove the criminal act will have to be that which is compatible
with civil liability and that is, preponderance of evidence and not proof of guilt
beyond reasonable doubt. Citing or invoking Article 30 to justify the survival of the
civil action despite extinction of the criminal would in effect merely beg the question
of whether civil liability ex delicto survives upon extinction of the criminal
action due to death of the accused during appeal of his conviction. This is because
whether asserted in the criminal action or in a separate civil action, civil liability ex
delicto is extinguished by the death of the accused while his conviction is on appeal.
Article 89 of the Revised Penal Code is clear on this matter:

"Art. 89. How criminal liability is totally extinguished. - Criminal liability is totally
extinguished:

1. By the death of the convict, as to the personal penalties; and as to pecuniary

penalties, liability therefor is extinguished only when the death of the offender
occurs before final judgment;

xxx xx
x x x x."

However, the ruling in Sendaydiego deviated from the expressed intent of Article
89. It allowed claims for civil liability ex delicto to survive by ipso facto treating the
civil action impliedly instituted with the criminal, as one filed under Article 30, as
though no criminal proceedings had been filed but merely a separate civil action.
This had the effect of converting such claims from one which is dependent on the
outcome of the criminal action to an entirely new and separate one, the prosecution
of which does not even necessitate the filing of criminal proceedings.[12] One would
be hard put to pinpoint the statutory authority for such a transformation. It is to be
borne in mind that in recovering civil liability ex delicto, the same has perforce to
be determined in the criminal action, rooted as it is in the court's pronouncement of
the guilt or innocence of the accused. This is but to render fealty to the intendment
of Article 100 of the Revised Penal Code which provides that "every person
criminally liable for a felony is also civilly liable." In such cases, extinction of the
criminal action due to death of the accused pending appeal inevitably signifies the
concomitant extinction of the civil liability. Mors Omnia Solvi. Death dissolves all
things.

In sum, in pursuing recovery of civil liability arising from crime, the final
determination of the criminal liability is a condition precedent to the prosecution of
the civil action, such that when the criminal action is extinguished by the demise of
accused-appellant pending appeal thereof, said civil action cannot survive. The
claim for civil liability springs out of and is dependent upon facts which, if true,
would constitute a crime. Such civil liability is an inevitable consequence of the
criminal liability and is to be declared and enforced in the criminal proceeding. This
is to be distinguished from that which is contemplated under Article 30 of the Civil
Code which refers to the institution of a separate civil action that does not draw its
life from a criminal proceeding. The Sendaydiego resolution of July 8, 1977,
however, failed to take note of this fundamental distinction when it allowed the
survival of the civil action for the recovery of civil liability ex delicto by treating the
same as a separate civil action referred to under Article 30. Surely, it will take more
than just a summary judicial pronouncement to authorize the conversion of said
civil action to an independent one such as that contemplated under Article 30.

Ironically however, the main decision in Sendaydiego did not apply Article 30, the
resolution of July 8, 1977 notwithstanding. Thus, it was held in the main decision:

"Sendaydiego's appeal will be resolved only for the purpose of showing his criminal
liability which is the basis of the civil liability for which his estate would be liable."[13]

In other words, the Court, in resolving the issue of his civil liability, concomitantly
made a determination on whether Sendaydiego, on the basis of evidenced adduced,
was indeed guilty beyond reasonable doubt of committing the offense charged.
Thus, it upheld Sendaydiego's conviction and pronounced the same as the source of
his civil liability. Consequently, although Article 30 was not applied in the final
determination of Sendaydiego's civil liability, there was a reopening of the criminal
action already extinguished which served as basis for Sendaydiego's civil liability.
We reiterate: Upon death of the accused pending appeal of his conviction, the
criminal action is extinguished inasmuch as there is no longer a defendant to stand
as the accused; the civil action instituted therein for recovery of civil liability ex
delicto is ipso facto extinguished, grounded as it is on the criminal.

Section 21, Rule 3 of the Rules of Court was also invoked to serve as another basis
for the Sendaydiego resolution of July 8, 1977. In citing Sec. 21, Rule 3 of the
Rules of Court, the Court made the inference that civil actions of the type involved
in Sendaydiego consist of money claims, the recovery of which may be continued
on appeal if defendant dies pending appeal of his conviction by holding his estate
liable therefor. Hence, the Court's conclusion:

"'When the action is for the recovery of money' 'and the defendant dies before final
judgment in the court of First Instance, it shall be dismissed to be prosecuted in the
manner especially provided' in Rule 87 of the Rules of Court (Sec. 21, Rule 3 of the
Rules of Court).

The implication is that, if the defendant dies after a money judgment had been
rendered against him by the Court of First Instance, the action survives him. It may
be continued on appeal."
Sadly, reliance on this provision of law is misplaced. From the standpoint of
procedural law, this course taken in Sendaydiego cannot be sanctioned. As correctly
observed by Justice Regalado:

"x x x xx
x x x x.

I do not, however, agree with the justification advanced in

both Torrijos and Sendaydiego which, relying on the provisions of Section 21, Rule
3 of the Rules of Court, drew the strained implication therefrom that where the civil
liability instituted together with the criminal liabilities had already passed beyond
the judgment of the then Court of First Instance (now the Regional Trial Court), the
Court of Appeals can continue to exercise appellate jurisdiction thereover despite
the extinguishment of the component criminal liability of the deceased. This
pronouncement, which has been followed in the Court's judgments subsequent and
consonant to Torrijos and Sendaydiego, should be set aside and abandoned as
being clearly erroneous and unjustifiable.

Said Section 21 of Rule 3 is a rule of civil procedure in ordinary civil actions. There
is neither authority nor justification for its application in criminal procedure to civil
actions instituted together with and as part of criminal actions. Nor is there any
authority in law for the summary conversion from the latter category of an ordinary
civil action upon the death of the offender. x x x."

Moreover, the civil action impliedly instituted in a criminal proceeding for recovery
of civil liability ex delicto can hardly be categorized as an ordinary money claim
such as that referred to in Sec. 21, Rule 3 enforceable before the estate of the
deceased accused.

Ordinary money claims referred to in Section 21, Rule 3 must be viewed in light of
the provisions of Section 5, Rule 86 involving claims against the estate, which
in Sendaydiego was held liable for Sendaydiego's civil liability. "What are
contemplated in Section 21 of Rule 3, in relation to Section 5 of Rule 86,[14] are
contractual money claims while the claims involved in civil liability ex delicto may
include even the restitution of personal or real property."[15] Section 5, Rule 86
provides an exclusive enumeration of what claims may be filed against the estate.
These are: funeral expenses, expenses for the last illness, judgments for money
and claim arising from contracts, expressed or implied. It is clear that money claims
arising from delict do not form part of this exclusive enumeration. Hence, there
could be no legal basis in (1) treating a civil action ex delicto as an ordinary
contractual money claim referred to in Section 21, Rule 3 of the Rules of Court and
(2) allowing it to survive by filing a claim therefor before the estate of the deceased
accused. Rather, it should be extinguished upon extinction of the criminal action
engendered by the death of the accused pending finality of his conviction.

Accordingly, we rule: if the private offended party, upon extinction of the civil
liability ex delicto desires to recover damages from
the same act or omission complained of, he must subject to Section 1, Rule
111[16] (1985 Rules on Criminal Procedure as amended) file a separate civil action,
this time predicated not on the felony previously charged but on other sources of
obligation. The source of obligation upon which the separate civil action is premised
determines against whom the same shall be enforced.

If the same act or omission complained of also arises from quasi-delict or may, by
provision of law, result in an injury to person or property (real or personal), the
separate civil action must be filed against the executor or administrator[17] of the
estate of the accused pursuant to Sec. 1, Rule 87 of the Rules of Court:

"SECTION
1. Actions which may and which may not be brought against executor or administra
tor. – No action upon a claim for the recovery of money or debt or interest thereon
shall be commenced against the executor or administrator; but actions to recover
real or personal property, or an interest therein, from the estate, or to enforce a
lien thereon,
and actions to recover damages for an injury to person or property, real or personal
, may be commenced against him."

This is in consonance with our ruling in Belamala[18] where we held that, in

recovering damages for injury to persons thru an independent civil action based on
Article 33 of the Civil Code, the same must be filed against the executor or
administrator of the estate of deceased accused and not against the estate under
Sec. 5, Rule 86 because this rule explicitly limits the claim to those for funeral
expenses, expenses for the last sickness of the decedent, judgment for money and
claims arising from contract, express or implied. Contractual money claims, we
stressed, refers only to purely personal obligations other than those which have
their source in delict or tort.

Conversely, if the same act or omission complained of also arises from contract, the
separate civil action must be filed against the estate of the accused, pursuant to
Sec. 5, Rule 86 of the Rules of Court.

From this lengthy disquisition, we summarize our ruling herein:

1. Death of the accused pending appeal of his conviction extinguishes his criminal
liability as well as the civil liability based solely thereon. As opined by Justice
Regalado, in this regard, "the death of the accused prior to final judgment
terminates his criminal liability and only the civil liability directly arising from and
based solely on the offense committed, i.e., civil liability ex delicto in senso
strictiore."

2. Corollarily, the claim for civil liability survives notwithstanding the death of
accused, if the same may also be predicated on a source of obligation other than
delict.[19] Article 1157 of the Civil Code enumerates these other sources of obligation
from which the civil liability may arise as a result of the same act or omission:
a) Law[20]

b) Contracts

c) Quasi-contracts

d) xxx xxx xxx

e) Quasi-delicts

3. Where the civil liability survives, as explained in Number 2 above, an action for
recovery therefor may be pursued but only by way of filing a separate civil action
and subject to Section 1, Rule 111 of the 1985 Rules on Criminal Procedure as
amended. This separate civil action may be enforced either against the
executor/administrator or the estate of the accused, depending on the source of
obligation upon which the same is based as explained above.

4. Finally, the private offended party need not fear a forfeiture of his right to file
this separate civil action by prescription, in cases where during the prosecution of
the criminal action and prior to its extinction, the private-offended party instituted
together therewith the civil action. In such case, the statute of limitations on the
civil liability is deemed interrupted during the pendency of the criminal case,
conformably with provisions of Article 1155[21] of the Civil Code, that should thereby
avoid any apprehension on a possible privation of right by prescription.[22]

Applying this set of rules to the case at bench, we hold that the death of appellant
Bayotas extinguished his criminal liability and the civil liability based solely on the
act complained of, i.e., rape. Consequently, the appeal is hereby dismissed without
qualification.

WHEREFORE, the appeal of the late Rogelio Bayotas is DISMISSED with costs de
oficio.