ARTICLE 48

G.R. Nos. 138874-75 January 31, 2006

PEOPLE OF THE PHILIPPINES, Appellee,

vs.
FRANCISCO JUAN LARRAÑAGA alias "PACO;" JOSMAN AZNAR; ROWEN ADLAWAN alias
"WESLEY;" ALBERT CAÑO alias "ALLAN PAHAK;" ARIEL BALANSAG; DAVIDSON
VALIENTE RUSIA alias 'TISOY TAGALOG;" JAMES ANTHONY UY alias "WANGWANG;" and
JAMES ANDREW UY alias "MM," Appellants.

RESOLUTION

PER CURIAM:

Most jurisdictions recognize age as a barrier to having full responsibility over one’s action.1 Our legal
system, for instance, does not punish a youth as it would an adult, and it sees youthful misconduct
as evidence of unreasoned or impaired judgment. Thus, in a myriad of cases, we have applied the
privileged mitigating circumstance of minority embodied in Article 68 of the Revised Penal Code --
the rationale of which is to show mercy and some extent of leniency in favor of an accused who, by
reason of his age, is presumed to have acted with less discernment. The case at bar is another
instance when the privileged mitigating circumstance of minority must apply.

For our resolution is the motion for reconsideration2 filed by brothers James Anthony and James
Andrew, both surnamed Uy, praying for the reduction of the penalties we imposed upon the latter on
the ground that he was a minor at the time the crimes were committed.

A brief review of the pertinent facts is imperative.

On February 3, 2004, we rendered a Decision3 convicting the Uy brothers, together with Francisco
Juan Larrañaga, Josman Aznar, Rowen Adlawan, Alberto Caño and Ariel Balansag of the crimes
of (a) special complex crime of kidnapping and serious illegal detention with homicide and rape;
and (b) simple kidnapping and serious illegal detention. The dispositive portion of the Decision
reads:

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

(1) In Criminal Case No. CBU-45303, appellants FRANCISCO JUAN LARRAÑAGA alias
‘PACO;’ JOSMAN AZNAR; ROWEN ADLAWAN alias ‘WESLEY;’ ALBERTO CAÑO alias
‘ALLAN PAHAK;’ ARIEL BALANSAG; and JAMES ANDREW UY alias ‘MM,’ are found
guilty beyond reasonable doubt of the special complex crime of kidnapping and serious
illegal detention with homicide and rape and are sentenced to suffer the penalty
of DEATH by lethal injection;

(2) In Criminal Case No. CBU-45304, appellants FRANCISCO JUAN LARRAÑAGA alias
‘PACO’; JOSMAN AZNAR; ROWEN ADLAWAN alias ‘WESLEY;’ ALBERTO CAÑO alias
‘ALLAN PAHAK;’ ARIEL BALANSAG; and JAMES ANDREW UY alias ‘MM,’ are found
guilty beyond reasonable doubt of simple kidnapping and serious illegal detention and are
sentenced to suffer the penalty of RECLUSION PERPETUA;
 (3) In Criminal Case No. CBU-45303, appellant JAMES ANTHONY UY who was a minor at
the time the crime was committed, is likewise found guilty beyond reasonable doubt of the
special complex crime of kidnapping and serious illegal detention with homicide and rape
and is hereby sentenced to suffer the penalty of RECLUSION PERPETUA; in Criminal Case
No. CBU-45304, he is declared guilty of simple kidnapping and serious illegal detention and
is sentenced to suffer the penalty of TWELVE (12) years of prision mayor in its maximum
period, as MINIMUM, to seventeen (17) years of reclusion temporal in its medium period,
as MAXIMUM;

(4) Appellants are ordered to pay jointly and severally the heirs of Marijoy and Jacqueline, in
each case, the amounts of (a) ₱100,000.00 as civil indemnity; (b) ₱25,000.00 as temperate
damages; (c) ₱150,000.00 as moral damages; and (d) ₱100,000.00 as exemplary damages.

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

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

SO ORDERED.
G. R. No. 145034-35 February 5, 2004

PEOPLE OF THE PHILIPPINES, appellee

vs.
PEDRO INTONG y AGAPAY, appellant.

DECISION

VITUG, J.:

For review is a decision1 of the Regional Trial Court of Calamba, Misamis Occidental, Branch 36, in
Criminal Case No. 36-05 and Criminal Case No. 36-09, finding appellant Pedro Intong y Agapay
guilty beyond reasonable doubt, on two counts, of the crime of rape. In each of these two cases, the
trial court imposed on appellant the penalty of death and the payment of P75,000.00 civil indemnity
and P50,000.00 moral damages to the victim and her parents.

In Crim. Case No. 36-05 for rape, the accusatory information read:

"That on or about the 23rd day of November, 1997, at or about 10:00 o'clock in the evening, in
barangay Bunawan, municipality of Calamba, province of Misamis Occidental, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused, with lewd designs, entered
the bedroom in the dwelling of the offended party, and by means of force and intimidation, with the
use of a hunting knife, did then and there willfully, unlawfully and feloniously have carnal knowledge
of the offended party Genalyn Camporedondo, a 10-year-old girl who is the step granddaughter of
said accused, without her consent and against her will.

"CONTRARY TO LAW, with the qualifying circumstance that the victim is under twelve (12) years of
age and the offender is a stepgrandfather of the victim, and the use of a deadly weapon, and the
aggravating circumstance that the offense was committed in the dwelling of the offended party."2

In Crim. Case No. 36-09 for statutory rape, the accusation was to the following effect, viz:

"That on or about November 23, 1997, at about 10:00 o'clock in the evening, more or less, in the
kitchen of their house, at barangay Bunawan, municipality of Calamba, province of Misamis
Occidental, Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused with lewd design, and with the used (sic) of a hunting knife, with violence, force, and
intimidation, did then and there, willfully, unlawfully and feloniously have carnal knowledge with
GENALYN CAMPOREDONDO, a minor 10 years old, without her consent and against her will.

"CONTRARY TO LAW, with the presence of the qualifying circumstance of minority and the
aggravating circumstance of relationship the accused being the step-father of the mother of the
victim."3

Appellant pleaded not guilty to the charges. The trial ensued with the prosecution first presenting its
evidence on, and the defense thereafter submitting its own version of, the incidents complained of.

Genalyn Camporedondo, the eldest child of the spouses Jimmy and Emma Camporedondo, was
born on 5 July 1987. Along with her siblings named Gino, Raymond, Lenie and Roselle, Genalyn
treated appellant with respect, he being the second husband of her grandmother, the mother of her
own mother Emma. The Camporedondo family lived in an old and dilapidated house in Bunawan,
Calamba, Misamis Occidental. Its roof was made of nipa shingles, with a portion made only of
"cellophane." Its walls were matted bamboo slats. Two lamps lighted the dwelling at night.

After supper on the evening of 23 November 1997, Jimmy and Emma, accompanied by appellant,
Andrew and Ronnie Intong, went to the benefit disco dance of the barangay, leaving their children
sleeping at home. Appellant later decided not to proceed to the dance party and returned home.

It was raining, with the darkness of the night intermittently interrupted by flashes of lightning. About
ten o'clock that night, Genalyn was awakened by difficulty in breathing and felt somebody mounting
her. She recognized that person to be her step-grandfather when she saw his face by the lightning
flashes and also by his voice as he urged her to respond to his kisses. Genalyn shouted for help and
resisted the assault, in the process kicking her nine-year old brother Gino who then woke up. Gino
was unable to help his sister. While on top of Genalyn, appellant, who was naked from waist down,
inserted his penis into the vagina of Genalyn and did the push-and-pull movement. Soon thereafter,
he inserted his fingers into her vagina. His lust apparently still unsated, he carried Genalyn to the
kitchen where he laid her down the floor and then, again, inserted his penis into her vagina. After
doing the push-and-pull movement, he, like before, inserted his fingers into her vagina. During the
assault, Genalyn felt excruciating pain. She shouted for help but nobody responded. When it was
over, appellant got hold of a sanggot, a scythe used in harvesting coconut, from the kitchen and
threatened Genalyn and her siblings with death if they were to mention the incident to their parents.
Appellant then left.

Jimmy and Emma arrived home at two o'clock in the morning. Gino promptly reported to the couple
the sexual assaults committed by appellant against his sister. Expectedly taken aback, Jimmy
immediately took the matter up with the barangay tanod of Bunawan. At daybreak, barangay officials
brought Genalyn and her parents to the Calamba District Hospital. Dr. Jona C. Handumon, who
examined her, found tenderness in Genalyn's left breast, erythema of the introitus, fresh laceration of
the posterior fourchette, fresh abrasions on the 5, 6, 7 and 9 o'clock positions of the hymen,
erythema, as well as abrasions of the posterior vaginal wall, a firm but tender cervix with bloody
mucoid discharge and a strand of pubic hair. Dr. Handumon did not conduct a speculum
examination. The findings, reflected in the medico-legal report, were attested to by Dr. Rodolfo L.
Nazareno.4

In his defense, the 52-year-old appellant interposed alibi and denial. A laborer and tuba-gatherer,
appellant claimed that right after lunch on 23 November 1997, a Sunday, he drank Tanduay at the
public market in the company of his wife, Antonina Remorosa, and the Camporedondo spouses. He
was so drunk that Jimmy and Emma had to help him get home. On the morning of 24 November
1997, the barangay captain, a barangay tanod, and a member of the CAFGU arrested him.
Appellant asserted that he could not have possibly raped Genalyn, whom he treated as his own
granddaughter, and that, in any event, he was too drunk to commit the sexual abuse. He could not,
however, think of an evil motive that could have led Jimmy and Emma to charge him with rape. His
daughter by Antonina, Merlita Intong Aca, did claim that Jimmy and Emma harbored ill-feelings
against appellant because the couple wanted to take over the tenancy of the land that appellant and
his wife were tilling. Antonina corroborated Merlita's claim.

The trial court saw the case for the prosecution and convicted appellant; it concluded:

"WHEREFORE, premise considered, finding accused Pedro Intong guilty beyond reasonable doubt
of having committed the crime of RAPE in CRIMINAL CASE NO. 36-05 as defined and penalized
under Article 335 of the Revised Penal Code as amended by Article 266-A and 266-B of Republic
Act 8353 in relation to R.A. 7610 with the attending (sic) or presence of three qualifying aggravating
circumstances, namely: 1) that victim Genalyn Camporedondo is below 12 years old; 2) that the
crime of rape was committed with the use of a deadly weapon; and 3) that the crime of rape was
committed in the house or dwelling place of victim Genalyn Camporedondo, and likewise the
presence of the generic aggravating circumstance that the crime of rape was committed in the
presence of Gino Camporedondo, a brother of victim Genalyn Camporedondo, this is so because
this aggravating circumstance was not alleged in the Information although it was proven, accused
Pedro Intong is hereby sentenced to a penalty of DEATH. Pedro Intong is hereby directed to pay the
amount of P75,000.00 as civil indemnity and the additional amount of P50,000.00 as moral damages
to Genalyn Camporedondo and to her parents.

"In CRIMINAL CASE NO. 36-09, accused Pedro Intong is found guilty beyond reasonable doubt of
having committed the crime of RAPE as defined and penalized under Article 335 of the Revised
Penal Code as amended by Article 266-A and 266-B of Republic Act 8353 in relation to section 11 of
R.A. 7659, with the presence of qualifying aggravating circumstances, namely: 1) that victim
Genalyn Camporedondo is below 12 years old, and 2) that the crime of rape was committed with the
use of a deadly weapon, and likewise also, with the presence of two generic aggravating
circumstances, namely: 1) that the crime of rape was committed in the presence of the brother of the
victim, Gino Camporedondo, and 2) that the crime of rape was committed in the house or dwelling
place of victim Genalyn Camporedondo - these are considered only as generic aggravating
circumstances for the same are not alleged in the Information although they were proven, accused
Pedro Intong is hereby sentenced to a penalty of DEATH. Pedro Intong is hereby directed to pay to
Genalyn Camporedondo and [her] parents the amount of P75,000.00 as civil indemnity and the
additional amount of P50,000.00 as moral damages."5

Appellant, through the Public Attorney's Office, interposed a lone assignment of error; viz: "THE
TRIAL COURT ERRED IN CONVICTING THE ACCUSED-APPELLANT OF RAPE WHEN THE
LATTER'S GUILT WAS NOT PROVEN BEYOND REASONABLE DOUBT."6

Appellant focuses much on the question of credibility of the witnesses for the prosecution. This Court
has consistently held, however, that such an issue is, by and large, within the proper competence of
the trial court. The credibility of a witness is a matter best left to the trial court because of its peculiar
position of being able to observe his deportment on the stand while testifying, an opportunity that is
denied to an appellate court. Thus, there is good reason for the latter to almost always accord finality
to the findings of the trial court unless, as so often said, "there appears in the record some fact or
circumstance of weight which the lower court may have overlooked, misunderstood or
misappreciated and which, if properly considered, would alter the results of the case."7

Understandably, appellant assails the reliability of the identification made by the prosecution for,
after all, it is the only way by which his alibi could carry some weight. It is well-settled that a
categorical and positive identification of an accused, without any showing of ill-motive on the part of
the eyewitness testifying on the matter, prevails over alibi and denial, which are negative and self-
serving evidence undeserving of real weight in law unless substantiated by clear and convincing
evidence.8 In this case, both Genalyn and Gino have been able to identify appellant by the lightning
flashes that illuminated their otherwise dark house and through his voice. It is known that the most
natural reaction of a witness to a crime is to strive to look at the appearance of the perpetrator and to
observe the manner in which the offense is perpetrated.9 Even the split-second illumination by a
flash of lightning could suffice to confirm identification of appellant. Identification of an accused by
his voice has also been accepted particularly in cases where, such as in this case, the witnesses
have known the malefactor personally for so long10 and so intimately.11 In People v. Calixtro,12 the
Court has given credence to the blindfolded rape victim's identification of the accused, a barriomate,
by his voice. Still in an earlier case, the Court has said:
"x x x [C]omplainant's identification of the appellant was not based solely on the latter's physical
defect, but by his voice as well, when he warned complainant, `Flor, keep quiet.' Although
complainant did not see appellant's face during the sexual act because the house was dark,
nevertheless, no error could have been committed by the complainant in identifying the voice of the
accused, inasmuch as complainant and appellant were neighbors."13

Pitted against the victim's unflinching and consistent testimony, given during both the direct
examination and the cross-examination, was appellant's declaration that he was at home during the
material time, too drunk to move from where he slept. Apparently, in a bid to add flair to his story,
appellant claimed that he could not have raped the victim due to an unnamed illness that caused him
to dislike sexual intercourse15 adding that his penis, when enlarged, would have a circumference of
about six inches or the size of an 8-ounce Pepsi Cola bottle16 or, according to his wife, the size of the
gavel of the judge.17 Indeed, appellant had clutched at the last straw in a bid for exoneration.

Similarly futile is his defense of alibi. For this defense to be appreciated in favor of an accused, it
would be necessary that he is able to establish his presence at another place at the time of the
perpetration of the offense, and that it would have been physically impossible for him to be at the
crime scene.18 Appellant's house, however, where he claims to have been at the time of the incident,
is only about 150 meters away. Like denial, alibi is a feeble defense not only because of its inherent
weakness and unreliability but also because it is easy to fabricate.19

Appellant has been charged, in two separate informations, with "the crime of rape, defined and
penalized under Article 335 of the Revised Penal Code, as amended by Republic Act No. 8353,
which has reclassified the offense of rape as a crime against persons under Title Eight of Act No.
3813 of the Revised Penal Code." Section 266-A of the Code provides:

"Article 266-A. Rape; When And How Committed. - Rape is Committed -

"1) By a man who shall have carnal knowledge of a woman under any of the following
circumstances:

"a) Through force, threat, or intimidation;

"b) When the offended party is deprived of reason or otherwise unconscious;

"c) By means of fraudulent machination or grave abuse of authority; and

"d) When the offended party is under twelve (12) years of age or is demented, even
though none of the circumstances mentioned above be present.

"2) By any person who, under any of the circumstances mentioned in paragraph 1 hereof,
shall commit an act of sexual assault by inserting his penis into another person's mouth or
anal orifice, or any instrument or object, into the genital or anal orifice of another person.

"Article 266-B. Penalties. - Rape under paragraph 1 of the next preceding article shall be punished
by reclusion perpetua.

"Whenever the rape is committed with the use of a deadly weapon or by two or more persons, the
penalty shall be reclusion perpetua to death.

"x x x xxx xxx

"The death penalty shall also be imposed if the crime of rape is committed with any of the following
aggravating/qualifying circumstances:

"1) When the victim is under eighteen (18) years of age and the offender is a parent,
ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil
degree, or the common-law spouse of the parent of the victim:

"x x x xxx xxx

"3) When the rape is committed in full view of the spouse, parent, any of the children or other
relatives within the third civil degree of consanguinity;

"x x x xxx xxx

"Rape under paragraph 2 of the next preceding article shall be punished by prision mayor.

"Whenever the rape is committed with the use of a deadly weapon or by two or more persons, the
penalty shall be prision mayor to reclusion temporal."

The crime of rape is thus committed either (a) by carnal knowledge or (b) by the insertion of the
penis into the mouth or anal orifice of the victim or by the insertion of any object or instrument into
the genital or anal orifice of a person. The sexual congress and the insertion of appellants' fingers
into the sex organ of the victim, twice committed, have been sufficiently established. Unexplainably,
appellant has not been additionally charged in the information under the second mode of committing
rape.

The crime of rape is penalized with reclusion perpetua; the penalty becomes reclusion perpetua to
death when committed with the use of a deadly weapon and the attendance of other circumstances
therein stated. When the rape is attended by the qualifying circumstances of minority of the victim
and of her relationship with the culprit, the imposable penalty is death.

The victim did not testify on the use of a deadly weapon in the commission of the crime. It was her 9-
year-old brother Gino but who merely testified that appellant "had" or "held" a knife.20 In People vs.
Sagaysay,21 the Court said:

"x x x What can qualify the offense under Republic Act No. 7659 so as to warrant the imposition of
the death penalty would be when the rape is committed with the use of a deadly weapon and not just
the overt act of `being armed with a weapon.' Although the victim in the instant case testified about
the accused being armed with a knife, the record, however, is bereft of evidence to show that he
actually has used it, the knife having all along been just tucked at the back of his trousers."

The informations alleged that the victim was a minor, and that appellant was her step-grandfather.
The qualifying circumstances of minority and relationship, if indeed in attendance, could elevate the
penalty to one of death.

The minority of the victim at the time of commission of the rape incidents was sufficiently
established. The victim testified,22 and her mother corroborated the testimony,23 that she was born on
5 July 1987 or just a little over ten years and four months old when the crime was committed on 23
November 1997. According to Emma, the victim's mother, she tried to secure a copy of the birth
certificate of Genalyn but she failed to get one. Instead, the civil registrar issued her a
certification24 showing that the records of birth from 1936 to 26 June 1988 of the municipality of
Sindangan, where Genalyn was born, were destroyed by fire. Hence, the prosecution presented the
baptismal certificate25 issued by the parish priest of St. Joseph the Worker in Sindangan,
Zamboanga del Norte, showing that Genalyn, who was baptized on 1 February 1988, was born on 5
July 1987. In People vs. Pruna, 26 the Court said:

"2. In the absence of a certificate of live birth, similar authentic documents such as baptismal
certificate and school records which show the date of birth of the victim would suffice to prove age.

"3. If the certificate of live birth or authentic document is shown to have been lost or destroyed or
otherwise unavailable, the testimony, if clear and credible, of the victim's mother or a member of the
family either by affinity or consanguinity who is qualified to testify on matters respecting pedigree
such as the exact age or date of birth of the offended party pursuant to Section 40, Rule 130 of the
Rules on Evidence shall be sufficient under the following circumstances:

"x x x xxx xxx

"c. If the victim is alleged to be below 12 years of age and what is sought to be proved is that she is
less than 18 years old."

The victim's relationship with appellant, however, is not among the qualifying circumstances of
relationships covered by the law. Article 266-B requires that "the offender is a parent, ascendant,
step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the
common-law spouse of the parent of the victim." Conformably with the principle of exclusio unius est
exclusio alterius, the relationship of the offender, as being just a step-grandfather of the victim,
cannot be deemed embraced by the enumeration.27 Furthermore, there is no evidence submitted
that appellant is legally married to the victim's grandmother.

Absent one of the twin qualifying circumstances heretofore discussed, the rape committed may only
be subject to the single indivisible penalty of reclusion perpetua. Article 63 of the Revised Penal
Code provides that "[i]n all cases in which the law prescribes a single indivisible penalty, it shall be
applied by the courts regardless of any mitigating or aggravating circumstances that may have
attended the commission of the deed." Accordingly, the attendance of the aggravating circumstance
of dwelling may not raise the penalty to death but it may serve as a basis for the award of exemplary
damages.28

The crime has been witnessed by the nine-year-old brother of the victim. Under Article 266-B(3), the
penalty of death may be imposed if the crime of rape is committed with the qualifying circumstance
of the crime having been witnessed "in full view" by any of the victim's relatives "within the third civil
degree of consanguinity." While Gino is a full-blood brother of the victim, or a relative within the
second degree, this qualifying circumstance, however, has not been alleged in the Information so as
to warrant the imposition of the death penalty. Sections 8 and 9, Rule 110 of the Revised Rules on
Criminal Procedure requires the recital in the charge or information of aggravating circumstances.
The commission of the crime prior to the effectivity of the Rules on 1 December 2000 does not
deprive the appellant of its favorable consequence.29

The trial court imposed the civil indemnity of P75,000.00 for each crime apparently because of its
imposition of the death penalty.30 The amount is reduced to P50,000.00 under the prevailing
jurisprudence when reclusion perpetua is instead decreed. The award of P50,000.00 moral damages
accords with the current rule. In addition, the attendance of the aggravating circumstance of dwelling
warrant the imposition of exemplary damages for each count of rape.
WHEREFORE, the decision of the Regional Trial Court of Calamba, Misamis Occidental, Branch 36,
is AFFIRMED subject to the MODIFICATIONS that (a) appellant Pedro Intong y Agapay is found
guilty beyond reasonable doubt, on two counts, of the crime of simple rape; and (b) for each crime of
rape, he shall suffer the penalty of reclusion perpetua, and indemnify, in each case, the victim
Genalyn Camporedondo and her parents P50,000.00 civil indemnity, P50,000.00 moral damages,
and P25,000.00 exemplary damages. Costs de oficio.

SO ORDERED.
 SECOND DIVISION

G.R. No. 160257 January 31, 2006

ROBERT LASTRILLA, Petitioner,

vs.
RAFAEL A. GRANDA, Respondent.

DECISION

PUNO, J.:

Petitioner Robert Lastrilla seeks the partial reversal of the July 18, 2003 Decision of the Court of
Appeals (CA) in CA-G.R. No. 26273 which modified the May 8, 2002 Resolution of the Department
of Justice (DOJ), finding probable cause to file three (3) informations charging him with the crime of
Falsification of Public Document under Article 172 (1), in relation to Article 171 (1), (2) and (5) of the
Revised Penal Code.

The facts are as follows:

Respondent Rafael Granda is a grandson and legal heir of the deceased spouses Rafael and Aurora
Granda, who died in June 1989 and September 16, 2000, respectively. The Granda spouses had ten
children, namely: Blanquita Serafica, Jesse1 Granda, Aurora Sumcad, Violeta Cuenca, Rafael R.
Granda, Olivia Walker, Lourdes Manabat, Fernando Granda, Benjamin Granda and Silvina Granda.
Respondent's father, Jesse Granda, predeceased the spouses.

During Aurora's lifetime, she owned several parcels of land with some improvements thereon in
Tacloban City, covered by Transfer Certificate of Title (TCT) Nos. T-249, T-1312, T-816 and T-9874,
all registered in her name.2 Said parcels of land were allegedly sold by the Granda spouses, as
evidenced by the following deeds of absolute sale, all dated December 7, 1985, witnessed by
petitioner and the deceased spouses' youngest daughter Silvina and notarized by Atty. Camilo
Camenforte, to wit:

(a) The first Deed of Absolute Sale involved two parcels of land covered by TCT Nos. T-249
and T-1312, which were sold by the Granda spouses, as vendors, in favor of petitioner's
siblings Necita Uy, Elsa Uy, Andres Uy, Tinong Uy and Rosa Uy, as vendees, for a
consideration of P3,800,000.00, receipt of which was acknowledged by the spouses;3

(b) The second Deed of Absolute Sale involved two (2) parcels of land covered by TCT No.
T-816, which were likewise sold by the Granda spouses, as vendors, in favor of petitioner's
siblings Mary Uy Cua, Necita Uy, Elsa Uy, Andres Uy, Tinong Uy and Rosa Uy, as vendees,
for a consideration of P5,000,000.00, receipt of which was also acknowledged by the
spouses;4 and

(c) The third Deed of Absolute Sale involved three (3) parcels of land covered by TCT No. T-
6736, which were sold by the Granda spouses, as vendors, in favor of petitioner and his
 spouse Norma Lastrilla, as vendees, for a consideration of P200,000.00, receipt of which
was also acknowledged by the deceased spouses.5

On February 28, 2000, the deeds of absolute sale involving the properties covered by TCT Nos. T-
1312, T-816 and T-249 were annotated at the back of their corresponding TCTs. Consequently, TCT
Nos. T-1312, T-816, and T-249 were cancelled and TCT Nos. T-6696, T-54400, and T-54401,
respectively, were issued in the names of the respective vendees.6 The deed of absolute sale
involving the properties covered by TCT No. 6736 was not annotated as said TCT was found to be
non-existent.

On February 21, 2001 or more than five months after Aurora's death, respondent filed the instant
complaint7 for Violation of Articles 171 and 172 of the Revised Penal Code against petitioner, Silvina,
Atty. Camenforte, Norma Lastrilla, Mary Uy Cua, Necita Uy, Elsa Uy, Andres Uy, Tinong Uy and
Rosa Uy, docketed as I.S. No. 2001-343. Respondent claimed that a month after his grandmother's
death, he learned that all of the latter's properties in Tacloban were sold to different persons
sometime in 1999-2000. To verify such reports, he requested copies of the purported deeds of
absolute sale with the Register of Deeds and was able to obtain copies of the three (3) deeds of
absolute sale in question. Upon careful scrutiny of the subject deeds, he noticed that the signatures
of his deceased grandparents were falsified. Upon verification, the examining officers of the PNP
Crime Laboratory confirmed that the signatures of respondent's deceased grandfather Rafael in the
deeds and his specimen signatures "were not written by one hand and the same person." They also
found that the signatures of his deceased grandfather and the signatures of the deceased spouses'
youngest daughter Silvina "reveal some similarities in stroke structure, indicative of one writer."
Likewise, the examining officers found that the signatures of respondent's grandmother Aurora in the
questioned deeds and her specimen signatures "were not written by one and the same
person."8 Respondent also claimed that the three deeds of absolute sale were antedated. While the
sales took place in 1999 or 2000, it was made to appear that the transactions took place on
December 7, 1985, at a time when both of the Granda spouses were still alive. Respondent alleged
that: (a) Petitioner himself told respondent that it was in 1999 that he bought the lots covered by TCT
No. T-816; (b) Silvina could not have signed as a witness on December 7, 1985 as she was then
cloistered in the Cariana Movement Monastery under Fr. Odon Castro who certified that as a
member of said religious community, she could "not go out of the monastery unless there was a very
valid reason" and "she was not sent out for any errant (sic) nor went to the province" for the whole
year of 1985;9 (c) Aurora was still exercising rights of ownership over the properties subject of the
assailed deeds after December 7, 1985, as evidenced by the General Power of Attorney
(GPOA),10 dated February 14, 1999, executed by Aurora in favor of her youngest daughter Silvina, to
administer her properties subject of the assailed deeds and to collect and receive all rentals from the
occupants of the buildings therein; (d) As attorney-in-fact, Silvina executed lease contracts dated
February 4, 200011 with some of the lessees of the office spaces in the commercial building located
in the two lots covered by TCT Nos. T-1312 and T-249; (e) As per Certification from the Clerk of
Court of the Regional Trial Court of the 8th Judicial Region, the three deeds of absolute sale were
not among the available notarized documents submitted to said office for the year 1985; and (f) the
subject deeds were registered with the Register of Deeds only on February 28, 2000 or almost
fifteen (15) years after the alleged sales. Respondent claimed that petitioner conspired with Silvina
and Atty. Camenforte in falsifying the three deeds by signing as an instrumental witness therein.
Also, petitioner and the other vendees allegedly conspired by benefiting from the use of said public
documents in transferring the titles of the properties from the name of Aurora to their names.

Petitioner's co-respondent sibling Elsa Uy submitted her counter-affidavit,12 averring that sometime in
1998, Aurora repeatedly offered the sale of the subject properties to her. After conferring with her
siblings, she agreed to buy Aurora's properties for a total consideration of P18,000,000 subject to the
conditions: (1) That the preparation, documentation, notarization and registration of the document of
sale, the cancellation of the TCTs in Aurora's name and the issuance of the new TCTs in the names
of the vendees would be Aurora's sole and exclusive responsibility; (2) That all the expenses for
documentation, registration of documents, capital gains tax, documentary stamps tax, transfer tax,
sales tax, fees for the cancellation and issuance of titles and expenses for similar purposes would be
for the exclusive and sole account of Aurora; (3) That as soon as the TCTs in the names of the
vendees are issued, Aurora would turn over the new TCTs to them; (4) That all the necessary
documents would be executed by Aurora and/or by any and all persons who may have any interest,
lien or claim over the properties at the instance of Aurora and at her expense, in order that the said
properties would be free from any lien or encumbrance; and (5) That the mode and manner of
payment for the consideration of the sale would be as directed by Aurora.

Aurora allegedly agreed to the said terms and conditions subject to an increase in the total
consideration from P18,000,000 to P18,800,000. As directed by Aurora, periodic payments were
made to her totaling P8,800,000. Partial advance payments of P1,000,000 each were likewise made
to Aurora's children Silvina and Lourdes. Thereafter, Elsa and her siblings, Mary Uy Cua, Necita Uy,
Rosa Uy, Tinong Uy and Andres Uy, gave Aurora's children P1,000,000 each or a total of
P8,000,000. The share of Aurora's deceased son Jesse Granda was divided equally among the
latter's seven (7) children, one of whom is respondent, who received his share of P142,857.14.
Subsequently, all the heirs of Aurora executed separate documents denominated as "Deed of
Assignment."13 The Deed of Assignment dated April 20, 2000, signed by respondent under the name
"Rafaelito" on "2/16/2000," together with the latter's siblings, states that:

For and in consideration of the sum of ONE MILLION PESOS (P1,000,000.00), Philippine Currency,
receipt of the amount from MARY UY CUA, NECITA UY, ELSA UY, ANDRES UY, TINONG UY and
ROSA UY, is hereby acknowledged and confessed by us to our entire and full satisfaction x x x and

We do hereby confirm and acknowledge the fact that our grandmother, Aurora Ratcliffe de Granda,
has the lawful right to dispose of the above described parcels of land and such other real properties
she has wherever located, as she is the absolute and exclusive owner being her exclusive and
paraphernal properties.14 (citation omitted)

Elsa contended that she and her siblings were innocent purchasers in good faith and for valuable
consideration. It was sometime in September 2000 when TCT Nos. T-6696 and T-54401 were
presented to them, together with the ten (10) separate Deeds of Assignment executed by Aurora's
heirs. Her siblings, namely Mary Uy Cua, Necita Uy, Andres Uy, Tinong Uy and Rosa Uy, never met
or personally conferred with Aurora or her heirs. Nor were they in possession or control of the three
(3) subject deeds and the owner's duplicates of TCT Nos. T-1312, T-249, T-816 and T-9874 as said
documents remained in the absolute control of Aurora. They were never involved in the preparation,
execution, notarization and registration of the three (3) deeds of absolute sale and the payment of
the required fees, taxes, the cancellation of the certificates of title and the issuance in their names of
TCT Nos. T-6696, T-54400 and T-54401 as the same were all made and effected by Aurora. She
denied having taken advantage of or profited from the subject deeds and certificates of title. She
contended that the filing of the instant complaint is "an act of utter bad faith, done for some evil
motives and with malicious criminal intent"15 as complainant was the very same person who gave his
conformity and consent to the questioned sales, confirmed the sales and acknowledged receipt of
P1,000,000 by executing, together with his siblings, the Deed of Assignment dated April 20, 2000.
Allegedly, it was complainant who unjustly enriched himself at their expense when he received from
them his share of P142,857.14. That respondent filed the instant case only after his grandmother's
death allegedly shows his sinister scheme to preclude his grandmother from divulging the truth. She
claimed that complainant was a party to the alleged falsification and perpetrated an act of fraud to
their damage and prejudice.
Alleging the same statement of facts and defenses, petitioner's other siblings, Necita Uy, Rosa Uy,
Mary Uy Cua, Tinong Uy and Andres Uy, filed their Joint Counter-Affidavit16 and petitioner's spouse,
Norma Lastrilla, filed her own counter-affidavit.17 Atty. Camenforte also submitted his counter-
affidavit18 containing his personal defenses. In response, respondent filed his Reply
Affidavit,19 contending that petitioner and Silvina should be deemed to have admitted the allegations
in the complaint for their failure to file their respective counter-affidavits despite due notice. Petitioner
eventually submitted his own counter-affidavit20 on the same day that his co-respondent siblings and
spouse filed their Rebuttal-Affidavits.21

In his defense, petitioner adopted the allegations of his co-respondents insofar as they were material
to the charges against him. He contended that the charge against him is "malicious and bereft of
truth, designed mainly to cast a cloud of doubt on the title of the vendees."22 He claimed that the
filing of the complaint was merely aimed at making him and his siblings submit to additional
monetary consideration being demanded by respondent

who must have felt shortchanged because he had to share his deceased father's P1,000,000-share
with his six (6) siblings. Respondent allegedly threatened him with criminal prosecution after he and
his siblings refused to heed his demands. Petitioner claimed that it was only Elsa and Aurora who
negotiated for the sale of the properties in question. His other siblings participated only with respect
to their respective contributions to the purchase price and he was the one tasked to ensure that the
signatures on the subject deeds were all authentic and genuine as they were parting with millions of
hard earned money. Upon Aurora's request, he readily agreed to affix his signatures in the subject
deeds as a witness, thinking that such act would seal the validity of the sale. He contended that the
fact that the sale was only registered on February 28, 2000 is not evidence of falsification. In fact, he
and his wife were the named vendees in one of the deeds and paid a total of P200,000 for the
properties therein described. However, they did not benefit from the said sale because contrary to
what was stated in the deed of sale, only Lot 4691 was covered by T-6736, Lot 2455 was an
unregistered land and has an adverse claimant thereto while Lot 4693 was covered by TCT No. T-
9874. In view of the misrepresentation, they never acquired title to the properties they bought and in
fact suffered pecuniary loss in the amount of P200,000.

Further, petitioner claimed that "although the Application in the Office of the Register of Deeds of
Tacloban City, denominated as Control No. 183, requesting registration of title to the properties"
subject of the deeds of absolute sale bears his signature, the same "is not evidence that it was not
Aurora Granda who caused the registration of said Deeds of Sale... because the truth of the matter
is that the same application was just given to [him] by someone sent by Aurora Granda requesting
that [he] affix [his] signature thereto." It is likewise "not evidence that [he] was the one who
personally submitted the same to the Office of the Register of Deeds."23 He did not deny that the
corresponding real property tax and special (SEF) tax for the parcels of land were in his name and
that of Washington Trading but he contended that the same does not prove that respondent vendees
were the ones who paid said taxes, for the truth of the matter is that Aurora, in consonance with her
agreement with Elsa Uy, fulfilled her part of the conditions of the sale that she would cause the
preparation, documentation and notarization of the deeds of absolute sale and paid the taxes in his
name and Washington Trading.

On May 5, 2001, the Office of the City Prosecution of Tacloban issued a Resolution, the dispositive
portion of which states:

In view of the foregoing, it appearing that Camilo Camenforte and Silvina Granda conspired with
each other to falsify the three Deeds of Sale, the filing of three (3) informations, one for each Deed of
Sale, charging the respondents with the crime of Falsification by Public Officers by forging the
signatures of Aurora and Rafael Granda to make it appear that the said persons have participated in
an act or proceedings when they did not in fact participated (sic) penalized and defined in Art. 171,
sub-par. 2 of the Revised Penal Code.24

In dismissing the complaint against petitioner, his wife and his siblings, the investigating prosecutor
reasoned that:

The question to be resolved is, [w]ho falsified these documents? It can not be the respondents, Elsa
Uy, Tinong Uy, Necita Uy, Andres Uy, Mary Uy Cua, as alleged by the complainant since they have
paid a total amount of P18,800,000.00 to Aurora Granda and her heirs for the purchase of said
properties.

It must be noted that the complainant himself never denied that they received the amount. In fact, in
the Deed of Assignment that the complainant and his co-heirs executed they admitted having
received P1,000,000.00 as their share in the purchase of the said properties. It is highly improbable
for someone to part with such an amount as a consideration for the purchase of a property and at
the same time conspire to forge the very same documents that is the basis of the sale. Why pay
P18.8M and risk losing the said amount on a forged document?

Nor can it be Robert and Normal (sic) Lastrilla for the same reason. In fact, these two respondents
incurred losses since they have already paid the consideration of P200,000.00 without having
acquired the property since the description of the property in the Deed of Sale is erroneous.

The ruling of the Supreme Court in the case of People vs. Sandangdiego, 81 SCRA 120, cited by the
complainant does not apply to the above-named respondents because it cannot be said that they
took advantage of it and profited thereby since the respondents acquired the said properties for
valuable consideration.25

Respondent filed a petition for partial review of the Resolution of the Office of the City Prosecution of
Tacloban with the DOJ, questioning the dismissal of the complaint against petitioner, his spouse and
his siblings. The petition for partial review was dismissed by then Secretary Hernando B. Perez,
holding that:

Suffice it to state that apart from the bare allegations of complainant that respondents-appellees
conspired with respondents Silvina Granda and Camilo Camenforte in the falsification of the subject
deeds, no evidence has been presented to substantiate the charge. From the record, it is unclear
how respondents-appellees participated in the falsification of the subject documents. x x x

While respondent-appellee Robert signed as a witness in all of the three (3) subject documents, the
determination of probable cause against him will not depend alone on a finding of forgery because a
careful scrutiny of the evidence adduced reveals that there are valid and complete defenses
available in his (Robert) favor that would negate any criminal intent on his part to commit the offense
of falsification.

Firstly. It is significant to note that the complainant did not question the effectiveness and
consummation of the sale transactions in questions (sic) much less did he assail the authority of
Aurora to do so. In fact, complainant himself confirmed the validity of the sale made by Aurora of her
properties by executing the Deed of Assignment dated April 20, 2000 and which deed he signed on
February 16, 2000, the day he received his share from the proceeds thereof as one of the children of
the late Jessie Granda.

Secondly. Neither did complainant allege that the sales transactions were without or for inadequate,
fictitious or simulated consideration. It is without dispute that respondent-appellee Robert Lastrilla,
together with his brothers and sisters, paid the sum of P18.8 M. By paying such a substantial sum of
P18.8 M, it was unlikely for respondent-appellee Robert to have intentionally and maliciously
participated in the falsification of the subject documents because it would be adverse to his own
interests and that of his siblings. It would be the height of absurdity that respondent-appellee would
have consented to having falsified documents evidencing the subject transactions considering that
his primary and paramount concern was to protect his own interests and that of his siblings.

Thirdly. It is worthy to note that complainant was not joined in his complaint by any of the surviving
heirs of Aurora Granda. If, indeed, complainant and the other heirs of the estate of Aurora were
cheated by respondents-appellees of the properties in question because of the execution of the
subject documents, the least that the other heirs could have done was to join complainant in the
instant complaint. Such failure lends credence to the claim of respondents-appellees that the sale
transactions in question were regular and that they bought the subject properties from Aurora in
good faith and for a valuable consideration.

Fourth. No right of complainant was violated by the execution of the subject deeds. The deceased
Aurora had the free disposition of the properties such that whatever means and method adopted by
Aurora in causing the transfer of her properties to the respondents-appellees is beyond
complainant's concern much less did he have any right whatsoever to question the said disposition.
Obviously, complainant could not allege that he had sustained damage as a result of the sale simply
because no right of his could have been violated. On the contrary, complainant admittedly benefited
from the sale.

Fifth. We find it rather odd for complainant to have initiated the instant action only after the death of
her (sic) grandmother Aurora. It is noted that as early as October 1999 and February 2000,
complainant admits having learned about the sale of Aurora's properties to other persons. In fact, as
earlier stated, on February 16, 2000 he signed a document denominated as Deed of Assignment
wherein he not only recognized the validity of the sale by Aurora in favor of the respondents-
appellees of the properties described therein but he also acknowledged receipt of the amount of
P142,857.14 representing his share of the proceeds of the said sale as heir of the deceased Jesse
Granda. These facts clearly create doubt as to the real motive of the complainant in filing the instant
complaint.

Indeed, the foregoing circumstances clearly establish respondent-appellee Robert Lastrilla's lack of
criminal intent in the falsification of the subject document. Par. no. 1 of Article 172 of the Revised
Penal Code in conjunction with Par. no. 1 of Article 171 of the same Code penalizes a private
individual who forges a signature of another in public document. However, in the absence of criminal
intent, there is no falsification and the absence of damage negates criminal intent. x x x26

Subsequently, respondent filed a petition for review under Rule 43 of the Rules of Court with the CA.
In its Decision dated July 18, 2003, the CA modified the Resolution dated May 8, 2002 issued by the
Secretary of Justice, as follows:

WHEREFORE, the Resolution dated May 8, 2002 issued by the Department of Justice is hereby
MODIFIED. Finding probable cause against private respondent Robert Lastrilla, we hereby direct the
Office of the Prosecutor of Tacloban City to issue a recommendation for the filing of three (3)
informations charging Robert Lastrilla of the crime of Falsification of Public Document under Article
172 (1), in relation to Article 171 (1), (2) and (5) of the Revised Penal Code.

SO ORDERED.27 (emphases supplied)

The CA ratiocinated that:

In the case of Robert Lastrilla, there are allegations that: first, he knew that the three deeds of sale
were falsified and, despite such knowledge, he still signed them as an instrumental witness; second,
he was personally and directly responsible for registering the falsified deeds with the Register of
Deeds of Tacloban City; third, he caused the cancellation of the Transfer Certificates of Title in the
name of Aurora Granda; finally, he effected the issuance of the new Transfer Certificates of Title.

The foregoing circumstances convinces us of the presence of probable cause against private
respondent Robert Lastrilla, as the evidence will show that there is a reasonable ground for
presumption that a falsification exists as would lead the prosecutor to believe that he is probably
guilty of the offense charged and can be held for trial.28

Petitioner's partial motion for reconsideration proved futile.29 Hence, he filed the instant petition,
assigning as lone error that:

[THE] COURT OF APPEALS GRAVELY ERRED IN FINDING PROBABLE CAUSE AGAINST

[PETITIONER] ROBERT A. LASTRILLA FOR FALSIFICATION OF PUBLIC DOCUMENT UNDER
ARTICLE 172 (1), IN RELATION TO ARTICLE 171 (1), (2), AND (5) OF THE REVISED PENAL
CODE.30

Articles 172 (1) and 171 (1), (2) and (5) of the Revised Penal Code, state that:

Art. 172. Falsification by private individuals and use of falsified documents.-- The penalty of prision
correccional in its medium and maximum periods and a fine of not more than P5,000 shall be
imposed upon:

1. Any private individual who shall commit any of the falsifications enumerated in the next preceding
article in any public or official document or letter of exchange or any other kind of commercial
document; x x x

Article 171. x x x

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; x x x

5. Altering true dates; x x x

In the case at bar, there is no question that all the elements of falsification are present. The issue is
whether there is probable cause to engender the belief that petitioner is one of the authors of the
falsification.

Petitioner questions the findings of the CA that: (a) he knew that the three deeds of absolute sale in
question were falsified but still signed the same as an instrumental witness; and (b) despite such
knowledge, he personally and directly caused the registration of the same with the Register of
Deeds of Tacloban, the cancellation of the TCTs in the name of Aurora and the issuance of the new
TCTs in the names of the respective vendees. He contends that the decision of the CA finding
probable cause to file three (3) informations for Falsification of Public Document under Article 172(1)
in relation to Article 171(1), (2) and (5) of the Revised Penal Code against him is merely based on
the allegations of respondent, unsubstantiated by any evidence on record.31
We disagree.

In a preliminary investigation, probable cause for the filing of an information by the prosecutor has
been defined as "the existence of such facts and circumstances as would excite the belief, in a
reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged
was guilty of the crime for which he was prosecuted."32 It is well-settled that "a finding of probable
cause needs only to rest on evidence showing that more likely than not a crime has been committed
and was committed by the suspects. Probable cause need not be based on clear and convincing
evidence of guilt, neither on evidence establishing guilt beyond reasonable doubt, and definitely not
on evidence establishing absolute certainty of guilt."33

From the records, there is no question that petitioner signed as an instrumental witness to the
subject deeds of absolute sale. As such, he attested that the Granda spouses, as vendors, signed
the said deeds in his presence on December 7, 1985. By petitioner's own admission, however, the
negotiations for the sales only started in 1998, thus, the deeds were admittedly antedated. The
investigating prosecutor, the DOJ and the CA also unanimously found probable cause to believe that
the signatures of the Granda spouses were falsified as evidenced by: (a) the PNP Crime Laboratory
report which concluded that the specimen signatures of the spouses did not match the signatures
affixed in the subject deeds; and (b) the undisputed fact that vendor-spouse Rafael died in June
1989. The disputable presumption is that a person intends the ordinary consequences of his
voluntary act and takes ordinary care of his concerns.34 This presumption assumes greater
significance to the case of petitioner who, as "the one tasked [by his siblings] to ensure that the
signatures on the subject deeds were all authentic and genuine," is naturally expected to not have
voluntarily affixed his signature in the subject deeds unless he understood the clear significance of
his act.

Moreover, there is sufficient evidence to prove that petitioner "was personally and directly
responsible for registering the falsified deeds with the Register of Deeds of Tacloban City" and that
"he caused the cancellation of the Transfer Certificates of Title in the name of Aurora" and "effected
the issuance of the new Transfer Certificates of Title." The following pieces of evidence support such
findings: (a) a copy of Control No. 183 dated February 28, 2000 and the certification of the Register
of Deeds state that petitioner "presented for registration" the three deeds in question to the Register
of Deeds;35 and (b) a copy of the entries in the Receiving and Releasing Book of the Office of the
Register of Deeds of Tacloban City and the Certification dated July 4, 2001 of the Register of Deeds
show that the deeds in question were released to petitioner on March 3, 2000.36 Petitioner's defense
that it was actually Aurora who effected the transfer cannot overcome the presumption in favor of the
Register of Deeds that in issuing the certifications, official duty has been regularly
performed.37 Notably, other than his bare assertion, petitioner did not present any other evidence to
corroborate his claim, i.e., the testimony of the alleged representative of Aurora who made him sign
the questioned application form. In the absence of satisfactory explanation, one found in possession
of and who used a forged document is the forger of said document.38 If a person had in his
possession a falsified document and he made use of it, taking advantage of it and profiting thereby,
the clear presumption is that he is the material author of the falsification.39

The presumptions elicited by the evidence on record are not of little significance. The effect of a
presumption upon the burden of proof is to create the need of presenting evidence to overcome the
prima facie case created, thereby which, if no contrary proof is offered, will prevail.40

Petitioner lays stress on the ruling of the DOJ that "in the absence of criminal intent, there is no
falsification and the absence of damage negates criminal intent." The following circumstances
allegedly show lack of criminal intent on his part, viz: (a) Respondent did not question the
effectiveness and consummation of the sale transactions in question or assail the authority of Aurora
to do so. In fact, complainant himself confirmed the validity of the sale made by Aurora of her
properties by executing the Deed of Assignment dated April 20, 2000; (b) Petitioner and his siblings
paid the sum of P18,800,000, hence, could not have intentionally and maliciously participated in the
falsification of the subject documents as it would be adverse to their interests; (c) The other heirs of
Aurora did not join respondent in filing the instant complaint, thus, giving credence to the claim of
petitioner that the sale transactions were regular, done in good faith and for valuable consideration;
(d) Respondent had no right which was violated by the execution of the subject deeds as Aurora had
the free disposition of her properties during her lifetime; and (e) It is rather "odd" for complainant to
have initiated the instant action only after the death of his grandmother Aurora. Finally, petitioner
also invokes the defense of good faith. He contends that assuming he knew or had a hand in the
falsification of the three (3) deeds of absolute sale and used the same to process the issuance of the
new TCTs, said act is not a punishable act of falsification as the same was authorized by the heirs of
Aurora, including respondent.41

The arguments are unmeritorious.

The mentioned circumstances in the ruling of the DOJ which allegedly negate the existence of
criminal intent on the part of petitioner are unavailing. First, the contention that the validity of the sale
transactions was not disputed is contrary to the allegations of respondent and the evidence on
record. In his complaint-affidavit, respondent alleged that "the purported sale of the subject
properties on 07 December 1985 is false and fraudulent."42 Moreover, the new TCTs issued in the
names of the vendees through the deeds in question have an annotation of respondent's adverse
claim that "the deed[s] of sale are simulated."43 Second, petitioner's reliance on the deeds of
assignment signed by respondent and his co-heirs to prove the validity of the sale transactions is
shaky. By said deeds, the heirs of Aurora merely acknowledged that they received certain sums of
money from the Uys and that they "assign[ed], transfer[red] and convey[ed] unto and in favor of"
Aurora "all [the] rights, interests, and participation that [they] have or may have in any and all parcels
of land,44 wherever located, together with all the improvements thereon, two parcels of land" of which
were particularly described as the ones covered by TCT No. T-816. No reference was made to the
alleged contracts of sale between Aurora and the Uys. Likewise, said deeds contain a marked
contradiction: if indeed, the properties were the "exclusive and paraphernal properties" of Aurora,
why was there a need for her heirs (which included respondent) to assign their rights to her? Finally,
the attribution of ill-motive to respondent by the fact that the complaint was only filed after Aurora
died and that respondent was not joined in by his co-heirs in filing the complaint are speculative and
are not sufficient to overcome the legal presumptions establishing a prima facie case for falsification
against petitioner.

In any case, even assuming that the payment of the sum of P18,800,000 shows lack of damage on
the part of respondent and his co-heirs, petitioner's conclusion that there can be no criminal intent in
the absence of damage is hasty, to say the least. Criminal intent is a mental state, the existence of
which is shown by the overt acts of a person.45 We have clarified that the absence of damage does
not necessarily imply that there can be no falsification as it is merely an element to be considered to
determine whether or not there is criminal intent to commit falsification.46 It is a settled rule that in the
falsification of public or official documents, it is not necessary that there be present the idea of gain
or the intent to injure a third person for the reason that in the falsification of a public document, the
principal thing punished is the violation of the public faith and the destruction of the truth as therein
solemnly proclaimed.47 In this case, petitioner's voluntary acts of: (a) signing as witness to the three
antedated notarized deeds of absolute sale, attesting that the Granda spouses, as vendors, signed
the same in his presence, when there is probable cause to believe that such signatures were
falsified; and (b) knowingly causing the registration of the three falsified deeds with the Register of
Deeds to effect the cancellation of the old TCTs and the issuance of the new TCTs in his name and
the names of his siblings, evidence malice and willful transgression of the law.
We likewise reject petitioner's defense of good faith. As pointed out by respondent, the contention
that even assuming petitioner had a hand in the falsification and use of the falsified instruments, he
is not liable because he was authorized by Aurora and her heirs, was belatedly raised on appeal.
Also, as logically pointed out by respondent, he is an heir of Aurora and definitely, he did not
authorize petitioner to falsify the subject deeds and use the same to effect the transfer of the TCTs
from the name of Aurora to his name and that of his siblings. Furthermore, the finding that there is
probable cause to believe that the signatures of both Aurora and Rafael were falsified and the dates
of the instruments were antedated lay serious doubt on the claim that the conveyance was indeed
authorized by Aurora herself. To further sow doubt on the claim of authority, respondent's claim that
in 1999, his grandmother Aurora was already "too sickly and frail to execute said documents," finds
support in the evidence on record. A certain Rebecca Araza, a househelp in the residence of Aurora,
attested that in 1999, she was one of those who took care of Aurora who was then "very sickly,"
"could hardly recognize faces,… remember names and events and very rarely talked" and whose
"condition worsened starting January 1999."48 Also bolstering respondent's claim is the noticeable
fact that Aurora signed the GPOA dated February 14, 1999 in favor of Silvina by affixing her
thumbmark instead of her customary signature.49

While it is this Court’s general policy not to interfere in the conduct of preliminary investigations,
leaving the investigating officers sufficient discretion to determine probable cause,50 we have
nonetheless made some exceptions to the general rule, such as when the acts of the officer are
without or in excess of authority.51 Although there is no general formula or fixed rule for the
determination of probable cause since the same must be decided in the light of the conditions
obtaining in given situations and its existence depends to a large degree upon the finding or opinion
of the judge conducting the examination, such a finding should not disregard the facts before the
judge nor run counter to the clear dictates of reason.52 From the records of the case at bar, it is clear
that a prima facie case for falsification exists against petitioner.

IN VIEW WHEREOF, the petition is DENIED. The July 18, 2003 Decision of the Court of Appeals in
CA-G.R. No. 26273 is hereby AFFIRMED.

SO ORDERED.
G.R. No. 126515 February 6, 2002

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ASSEMBLYMAN ARTURO F. PACIFICADOR (At Large), SGT. DOMINGO DALMACIO, SGT.
ENRICO CABAÑERO, C2C REYNALDO ALIPALA, PFC VICENTE VEGAFRIA, P/CPL. HECTOR
FULLON, and PAT/ LORENZO MINGOTE, accused,
SSGT. DOMINGO DALMACIO, C2C REYNALDO ALIPALA, PFC VICENTE VEGAFRIA, PCPL.
HECTOR FULLON and PAT. LORENZO MINGOTE, accused-appellants.

PARDO, J.:

Accused S/Sgt. Domingo Dalmacio, C2C Reynaldo Alipala, PFC Vicente Vegafria, PCpl. Hector
Fullon and Pat. Lorenzo Mingote, appeal from the decision1 of the Regional Trial Court, Branch 11,
San Jose, Antique finding them guilty beyond reasonable doubt of multiple murder committed
against Clemente Samulde, Rhium Sanchez, Plaridel Sanchez IV, Aldrick Sanchez, Mamerto
Zaldivar, Jr., Armelito Tamboong and Abner Varon and frustrated murder committed against Luna
Sanchez, and sentencing each to seven (7) reclusion perpetua and to indemnify the heirs of the
seven (7) victims jointly and solidarily in the amounts of P350,000.00,
P37,000.00,2 P20,000.00,3 P39,000.00,4 P35,000.00,5 P22,510.00,6 and P70,000.00,7 and to an
indeterminate prison term of nine (9) years, four (4) months and one (1) day of prision mayor, as
minimum, to seventeen (17) years, four (4) months and one (1) day of reclusion temporal, as
maximum, and to indemnify, jointly and severally the victim Luna Sanchez in the amount of
P60,000.00 for medical and hospitalization costs.8

On April 16, 1986, senior state prosecutor Tirso C. Velasco filed with the Regional Trial Court,
Antique, San Jose, Branch 11 an amended information for multiple murder and frustrated murder
against Arturo F. Pacificador, S/Sgt. Domingo Dalmacio PC, Sgt. Enrico Cabañero PC, C2C
Reynaldo Aliupala PC, Pfc Vicente Vegafria PA, Cpl. Hector Fullon INP, and Pat. Lorenzo Mingote
INP, which reads:

"That on or about May 13, 1984 in the evening, at the Municipality of Sibalom, Province of
Antique, Philippines, a place within the jurisdiction of this Honorable Court, accused
Assemblyman ARTURO F. PACIFICADOR, his military security men: S/SGT. DOMINGO
DALMACIO PC, SGT. ENRICO CABAÑERO PC, C2C REYNALDO ALIPALA PC, PFC
VICENTE VEGAFRIA PA, CPL. HECTOR FULLON INP and PAT LORENZO MINGOTE
INP, whose military jurisdiction over their case had been waived by the President of the
Philippines pursuant to P. D. 1952 in favor of the civil court, conspiring, confederating and
mutually helping one another, did, then and there, willfully, unlawfully and feloniously, with
intent to kill, treachery, and evident premeditation, attack, assault and shoot Rhium Sanchez,
Plaridel Sanchez IV, Aldrick Sanchez, Mamerto Zaldivar, Jr., Clemente Samulde, Abner
Varon and Pat. Armelito Tamboong with the use of armalite rifles and explosives thus
inflicting gunshot wounds on vital parts of their bodies which caused their death as a
consequence, and the wounding of Luna Sanchez on vital parts of his body which ordinarily
would cause his death thus performing all the acts of execution which should have produced
the crime of murder as a consequence but nevertheless did not produce it by reason of
cause independent of his will, that is, by the timely and able medical assistance rendered to
Luna Sanchez which prevented his death.

"CONTRARY TO LAW with aggravating circumstances of nighttime, by a band, with evident

premeditation or treachery, superior strength and by means of motor vehicle.
 "Manila for San Jose, Antique, April 16, 1986."9

In 1986, accused Arturo F. Pacificador fled and turned fugitive from justice.

On April 21, 1986, accused Domingo Dalmacio, Enrico Cabañero, Reynaldo Alipala, Vicente
Vegafria, Hector Fullon and Lorenzo Mingote, assisted by their counsels Atty. Avelino T. Javellana,
Atty. Anecito J. Baluyot, and Atty. Francisco Cabaluna Jr., pleaded not guilty upon arraignment. The
other accused Arturo F. Pacificador was not arraigned because he was at large. Thereafter, trial
ensued.

May 14, 1984 was the day set for election of members of the Batasang Pambansa. Arturo F.
Pacificador, incumbent Assemblyman representing the lone district of Antique, was running for
reelection under the banner of Kilusang Bagong Lipunan (KBL). Pacificador's reelection bid was
threatened by the all-out support given by Antique Governor Enrique Zaldivar to Pacificador's
opponent, Evelio Javier, a young charismatic leader, who was a candidate for assemblyman of the
Nationalista Party, Roy Wing.10

On May 13, 1987, the NP Chairman of Antique, Col. Rhium Sanchez, and his companions, namely:
Luna Sanchez, his son Aidrick Sanchez, Plaridel Sanchez, his nephew Mamerto Zaldivar, his cousin
Clemente Samulde, Armelito Tamboong and Abner Varon were busy campaigning for candidate
Javier in every town of Antique which they passed coming from the town of Pandan en route to San
Jose, Antique. They rode on Governor Zaldivar's Toyota tamaraw jeep.11

While passing Lindero, Lawauan, Antique, Luna Sanchez noticed the pick-up vehicle of Pacificador,
loaded with armed men. It overtook their vehicle. Upon reaching Brgy. Guisijan, Luna saw the same
pick-up by the roadside. When they passed by, one of the armed men on board the pick-up pointed
his rifle at them.12 Upon reaching Bugasong, Antique, Pacificador's pick-up overtook their vehicle
once again. As the pick-up was overtaking them, Luna saw a person in the front seat of the vehicle
using a two-way radio.13 Thereafter, they proceeded to San Jose, Antique. 1âwphi1.nêt

While halfway traversing Pangpang Bridge, in Sibalom, Antique, Luna saw a vehicle coming from the
opposite direction enter the south end of the bridge. Rhium Sanchez, who was then seated beside
Luna in the front seat of the Tamaraw, instructed Aidrick Sanchez who was driving to stop and signal
the oncoming vehicle not to proceed. The oncoming vehicle moved back from the bridge, but Luna's
vehicle had to stop as three (3) vehicles parked in the middle of the road past the bridge blocked the
road. Shortly, two (2) armed men in fatigue uniform approached their vehicle. One of the men
shouted "inspection." One proceeded to the left side of the Tamaraw jeep; the other armed men
went to the right side. The two (2) armed men peeped inside the Tamaraw jeep after which they
returned to their respective vehicle. Luna identified the two men in fatigue uniform as accused
Vegafria and Alipala.14

As soon as Vegafria and Alipala reached their vehicle, successive rounds of gunfire coming from
both sides of the road rained on the Tamaraw jeep, which lasted for about ten (10) minutes. Two (2)
big explosions were also heard. When the firing stopped, two to three men approached the Tamaraw
jeep. Luna, who was hit in the right arm kept quiet and still. He heard three (3) men approach their
vehicle, one of whom uttered "Patay silang lahat.15" Thereafter, the men returned to their vehicle and
sped away onboard their vehicles headed towards San Jose, Antique.16

After the assailants had left, Luna Sanchez found his son, Aldrick still alive but seriously wounded.
Rhium, who was seated at the front between him and Aldrick, was dead. His companions who were
seated at the back of the Tamaraw jeep were all dead. He told Aldrick to get out of the vehicle and
flee, but the latter told his father that his legs were badly hit. Nonetheless, Aldrick slid out of the
vehicle while Luna went out through the window of the Tamaraw jeep. Luna stood by the road. He
shouted for his companions at the back of the jeep but no one answered. He crossed to the other
side of the vehicle where Aldrick was lying. He told his son that they must go to a safer place. Aldrick
answered that he could not walk. After taking a few steps, Luna fell to the ground. He tried in vain to
stand up but failed. He was too weak. He crawled to where his son was lying under a kapok tree.
There they waited for about thirty (30) minutes.17

Shortly, a firetruck, with its flashing lights, arrived, followed by a Balaraw jeep. The headlights of the
firetruck illuminated the place. Two (2) men with flashlights scanned the vicinity, one of whom said
"dalawa dito patay" (two persons here dead).18 One of them came near where they -lay. Luna called
for help. The man introduced himself as a policeman from Sibalom and told him not to be afraid. The
man tried to assist him, but out of nowhere, a shot suddenly rang out. The man released his hold on
Luna and ran towards the road and left.19

Meanwhile, Aldrick told his father to escape; otherwise, both of them would die. Luna at first did not
agree, but left after Aldrick insisted that he should go. Luna had just moved about ten (10) meters
from his son when he heard bursts of gunfire. He heard his son groan signaling that the latter was
mortally hit and a voice saying, "Dalawa yan kanina." Again, shots were fired in his direction but he
was not hit. The men tied Aldrick and dragged him towards the road.20

The men on board the fire truck saw Luna when searchlights were beamed on the spot where he
laid. Someone shouted in tagalog, "may isa dyan patay" (there is someone there dead). One of the
men went down to get him, tied his right ankle and dragged him towards the road. Luna managed to
tell the man that he was still alive and asked that he be brought to a hospital. Another man wearing a
fatigue uniform advised the men not to harm him. Thereafter, Luna was brought to Angel Salazar
Memorial General Hospital for medical attention. It was about 2:00 in the morning when Luna was
brought to the hospital. The ambush took place between 11:00 and 12:00 midnight.21

At about 10:00 in the evening of May 13, 1984, while prosecution witness Rodelo Aleries, a resident
of Alangan, Sibalom, Antique, was on duty as watchman of the Hanaber Construction Firm stationed
at the southern end portion of the Pangpang Bridge, Sibalom Antique, from a distance of twenty (20)
meters, he saw three (3) vehicles22 parked at the southern end portion of the single-lane Pangpang
Bridge. Rodelo recognized the three (3) vehicles as the vehicles of Arturo Pacificador, which he
used whenever he went on his political campaigns.23

About twelve persons, some of who were familiar to him alighted from the vehicles.24 As the moon
was bright and the light coming from the compound of Hanaber Construction Firm further illuminated
the place,25 he recognized S/Sgt. Domingo Dalmacio, Sgt. Enrico Cabañero, Pat. Lorenzo Mingote,
C2C Reynaldo Alipala, Pfc. Vicente Vegafria and Cpl. Hector Fullon. He was able to identify them
because they were the security men of Assemblyman Arturo F. Pacificador during political meetings.
They were carrying armalite rifles. Thereafter, they went towards the canal and took cover.26

Minutes later, Rodelo saw the headlights of a vehicle coming from the other side of the bridge. When
the vehicle was midway the bridge, the white Nissan vehicle, one of the vehicles parked at the
southern end drove and entered the single-lane bridge. But it did not proceed; instead, it moved
backed and stopped at about ten (10) meters from the foot of the bridge. Meanwhile, the vehicle
coming from the northern end of the bridge, moved forward. By this time, the distance between the
two (2) vehicles was approximately five (5) meters.27

Suddenly, gunshots rained from the nearby canal, directed against the vehicle which came from the
northern part of the bridge which lasted for about ten (10) minutes. While lying prone Rodelo heard
the engine of the vehicles moved towards the direction of San Jose, Antique. Seized with fear,
Rodelo went home.28 The following morning, Rodelo reported the incident to his office. When the
military conducted an investigation at the scene where the shooting took place, empty gun shells
were found near the canal.29

Prosecution witness Efren Rangos, whose house was about forty (40) meters from the bridge of
Sibalom, Antique testified that at about 10 o'clock in the evening of May 13, 1984, he was on his way
home after fishing in the river along Pangpang Bridge, Sibalom, Antique. He took the footpath
between Palmares Compound and the national highway. Upon reaching the southern end of
Pangpang Bridge, Efren saw two (2) jeeps parked on both sides of the highway. There, Efren met
and greeted Assemblyman Arturo F. Pacificador. Pacificador told him, "Boy or To, whatever you see
and whatever you know, just keep silent (hipos lang ikaw)."30 Assemblyman Pacificador had a two-
way radio handset and an armalite rifle slung on his shoulder. The men inside the jeeps were
carrying rifles while other armed men positioned themselves by the roadside. Thereafter, Efren went
home and took supper.31

After taking his supper, Efren went out. Along the way, he saw a vehicle coming from the north pass
the bridge. At the same time, Efren saw a jeep traveling from the opposite direction towards the
bridge. The jeep coming from the south stopped and moved back. The vehicle coming from the north
moved on. Momentarily, Efren heard bursts of gunfire coming from the right shoulder of the road
facing the municipality of San Jose, Antique. He was about 80 meters away. He observed that the
gunshots were all directed against the vehicle that came from the north. No gunshots came from the
vehicle that came from the north.32 The firing lasted for about ten (10) minutes. Thereafter, the three
vehicles left and headed towards San Jose, Antique.33 Efren recognized the three (3) vehicles as the
same vehicles which Arturo F. Pacificador used in during his election campaign.34

Dr. Fernando Febrero, senior resident physician at Angel Salazar Memorial General Hospital,
attended to Luna Sanchez and had the following findings:

"DIAGNOSIS/LESIOS/FINDINGS:

1. Contusion, right infra-orbital area.

2. Wound, gunshot, POE- 1 inch diameter, muscle deep, face, right POX-None,

3. Wound, gunshot, POE- 2 inches diameter, muscle deep, medial aspect, left leg,
beside the knee, POX- None.

4. Wound, incised, 1 cm. long, subcutaneous deep, with swelling, temporal area, right.

5. Multiple punctured wounds, proximal and middle 3rd forearm, right.

6. Wound, gunshot, POE- 1 cm. diameter, subcutaneous deep, right chest, level of 10th
rib, POX- None.

7. Punctured wound, at per-umbilical area.

8. Wound, lacerated, 1 inch long, subcutaneous deep, epigastrium.

9. Wound, lacerated, 1 cm. long, muscle deep, left chest, level of 5th intercostals space.

10. Wound, lacerated, o.5 cm. long, muscle deep, left face.
 11. Wound, gunshot, POE- o.5 cm. diameter, muscle deep, deltoid region, right upper
extremity, POX- None.

12. Wound, gunshot, POE- ½ cm. diameter, muscle deep, middle 3rd humerus, left upper
extremity, POX-None.

OPERATION PERFORMED, IF ANY: None

REMARKS: Wound #3 sutured."35

Dr. Rodolfo Garfin, provincial health officer of Antique, conducted an autopsy on the cadavers of
Rhium Sanchez, Mamerto Zaldivar, Jr. and Aldrick Sanchez.36 Based on the autopsy report, the
victims sustained the following injuries:

RHIUM SANCHEZ:

"DIAGNOSIS/FINDINGS:

1. Body in state of primary flaccidity.

2. Multiple splinter wounds, varying in sizes from ¼ to ½ cm. with smudging of the edges,
subcutaneous tissue depth, scattered around the face, upper chest, dorso-lateral aspects of
the upper extremities, bilateral, abdomen, antero-lateral aspect, left thigh and both hands.

3. Wound, lacerated, 2 inches longs, muscle deep, anterior portion, middle 3rd left thigh.

4. Wound, lacerated, ½ inch long, muscle deep, lateral aspect, proximal 3rd, left leg, 2
inches below the left knee joint.

5. Multiple lacerated wounds, 1 inch to 1 ½ inches diameter with smudging edges located
at the left thumb, distal phalanges of 2nd 3rd, 4th and 5th fingers, left hand.

6. Wound, lacerated, scalp deep, 1 cm. diameter, parietal portion, left head, 3 inches
above the left ear.

7. Gaping lacerated wound, 1 inch diameter, located at the suprascapular area, left back,
2 inches above the left posterior axillary fold, directed medially involving the 2nd posterior rib,
producing a compound, comminuted fracture, producing a lacerated wound, 4 inches long, at
the lung substance, posterior lobe, left lung.

8. Wound, gunshot, circular in shape, 1 inch diameter, proximal 3rd left arm, directed
medially, producing a compound, comminuted fracture of proximal portion of the humerus.

9. Wound, gunshot, oblong in shape, ¾ inch diameter, ½ inch below wound #8, directed
medially and producing a compound, comminuted fracture of the left distal portion of the
humerus.

10. Hemothorax with collapses of the left lung, approximately 1 liter with blood clots.

CAUSE OF DEATH:
Hemorrhage, severe, secondary to gunshot and lacerated wounds."37

MAMERTO T. ZALDIVAR, JR.

"DIAGNOSIS/FINDINGS:

1. Wound, gunshot, (entrance) roughly oval in shape, measures about 0.3 inches in
diameter, located at right cheekbone, piercing the skin and zygomatious muscle.

2. Wound, blasted, measures about 8 cm. x 7 cm. in diameter with fracture and chipping
of the mandibular bone, left.

3. Wound, multiple, gunshot, roughly oval in shape six (6) in number with flame zone.
Four (4) of these are superficial, skin deep, while the remaining two (2) measure about 0.5
inches in diameter, located at the anterior chest wall, above the superior aspect of the
manibrum sterni, directed posteriorly and downwards piercing the skin, gnawing the first rib,
entering the thoracic eye, penetrating and perforating the arch of aorta, right, middle, right
lung. Hemothorax- 2,000 cc.: Paleness of visceral organs; heart big blood vessel empty.

4. Wound, gunshot, roughly oval in shape, measures about 0.7 cm. in diameter located
at the infraclavicular region, along the mid-axillary line, left, directed forwards to downwards,
penetrates the skin, soft tissues and upper portion, left lobe of the lung. Metal fragments
recovered flowint (sic) at the posterior thoracic cavity.

5. Wound, lacerated, measures 7 cm. x 5 cm. in diameter, located at the shoulder region
involving the skin and the deltoid muscle, left.

6. Wound, gunshot, roughly oval in shape, measures 5 cm. in diameter, located at the
lateral aspect, middle 3rd of the thigh, penetrates the skin and vasus lateralis.

7. Wound, lacerated, measures 7 x 5 cm. in diameter, located about an inch along the
left lateral malleolus of the left leg, involving skin, ligaments, complete compound,
comminuted fracture of the tibia.

8. Wound, blasted, measures about 10 cm. x 4 cm. located at the lateral and medial
aspect of the left planar surface, involving the skin, tendons, muscles and tarsal and
metatarsal bones.

9. Wound, gunshot, roughly oval in shape, measures about 0.7 cm. in diameter, located
about 30 cm. above the right ankle, just skin deep with small metallic fragments recovered.

10. Wound, gunshot, roughly oval in shape, measures about 0.6 cm. in diameter, located
at the right inner, lower quadrant of the gluteal region, muscle deep.

11. Wound, gunshot, roughly oval in shape, measures about 0.7 cm. in diameter, located
at the coccyxgeal region, skin deep.

CAUSE OF DEATH:

Internal and Expernal (sic) hemorrhage due to Multiple gunshot wounds."38

 ALDRICK G. SANCHEZ:

"DIAGNOSIS/FINDINGS:

1. Wound, gunshot, (entrance) roughly oval, measures about 5 inches in diameter,

located at the right lateral posterior aspect of the neck, about 2 inches from the right ear,
directed forwards, penetrating the scalp and oranium with fracture of the occipital bond and
base of the skull, producing laceration of the brain stem, making an exit after graving the
nasal bones, fracture of the frontal bone, fracture of the left maxillary bone with avulsion of
the left eyeball (exit).

2. Wound, gunshot, roughly oval, measures .5 incles in diameter, piercing the skin,
producing fracture of the sub-mandibular bones.

3. Wound, gunshot, (entrance) roughly oval, measures 0.5 inches in diameter, located at
the middle 3rd lateral aspect of the right arm, directed forwards and medially penetrating the
skin, brachialis muscles, producing comminuted fracture of the humerus bone and the triceps
muscles at the medial aspect (exit).

4. Wound, lacerated, measures about 1 and 3/4 inches in diameter, directed forwards
and inwards at the right upper chest wall along the anterior axillary line, penetrating the skin,
pectorialis major and minor muscles, producing comminuted fracture of the 2nd right anterior
rib, piercing both upper lobes of the lungs. Hemothorax: 250 cc.

5. Wound, lacerated, measures about 1 and ½ inches in diameter, located at the left
anterior axillary fold, directed forwards and medially, penetrating the skin, pectorialis major
and minor muscles, graving the lower border of the 1st rib, left, and penetrating the upper
lobe of the left lung. Hemothorax: 200 cc.

6. Wound, gunshot, (entrance) roughly oval, measures about 0.3 inches in diameter,
located at the middle 3rd, anterior aspect of the thigh, left, directed forwards and downwards,
penetrating the skin and rectus femoris muscles.

7. Wound, lacerated, (entrance) measures about 2 inches in diameter, located at the

lateral aspect, middle 3rd of the thigh, left penetrating skin and the vastus lateralis muscles.

8. Wound, gunshot, roughly oval, measures about 0.3 inch, skin deep, located at the right
leg, lower 3rd, media aspect from where three (3) metallic fragments were recovered.

9. Presences for multiple black spots at the parietal area, left with break of scalp tissues.

"CAUSE OF DEATH:

Shock secondary to hemmorhage (sic), massive, external and internal, due to multiple
gunshot wounds."39

Dr. Gibeleo Noblez, senior resident physician of Angel Salazar Memorial General Hospital autopsied
the cadaver of Armelito Tamboong, with the following findings:

"DIAGNOSIS/FINDINGS:
 1. Wound, gunshot, lacerated, 2 inches ion length, scalp deep with contusion collar at left
parietal region, anterior portion.

2. Wound, gunshot, 2 inches in diameter, scalp deep with contusion collar, left occipital
region.

3. Wound, gunshot, POE- 4 inches in diameter, with contusion collar at lower 3rd of right
forearm and compound comminuted fracture of distal 3rd right radius and ulna, POX- None.

4. Wound, gunshot, POE- 2 inches in diameter, muscle deep with contusion collar,
located at right posterior axillary line just above the axillary region, POX- None.

5. Wound, gunshot, POE- 1 inch in diameter, muscle deep, with contusion collar, 1 cm in
diameter, above wound #4, POX- None.

6. Wound, gunshot, POE- inch diameter with contusion collar at the back of the thoracic
cavity, right side of thoracic cavity, right side of thoracic spinal column at the level of the 4th
intercostals rib, right, penetrating thoracic cavity, POX- None.

7. Multiple gunshot wound, six (6) in number, 1 inch in diameter at the right scapular
region with contusion collar, hitting the scapular bone and lodge, POX- None.

8. Wound, gunshot, POE- 2 inches in diameter, muscle deep, back of the right leg,
postero-lateral location, 1 ½ inches in diameter with contusion collar, POX- None.

9. Wound, gunshot POE- 2.5 cm. in diameter, muscle deep, with contusion at the back of
the right lateral malleolus, POX- None.

INTERNAL FINDINGS:

Wound, gunshot, POE- 1 inch diameter, penetrating inner wall of the thorasic cavity, right, at
the level of the 4th inter-costal rib, at the back and the right lung was perforated and
collapse, blackish discoloration with clotted blood evacuated about 2 liters.

CAUSE OF DEATH:

Hypovolemic shock secondary to multiple gunshot wound (External and internal

hemorrhage)."40

Dr. Honesto O. Magdaug, Jr., medical specialist at Angel Salazar Memorial General Hospital
conducted an autopsy on the cadavers of Abner C. Biadora Varon and Clemente Samulde. Based
on the autopsy reports, the victims sustained the following injuries:

ABNER C. BIADORA VARON:

"DIAGNOSIS/FINDINGS:

"EXTERNAL FINDINGS: In-state of rigor Mortis.

"RIGHT LOWER EXTERMITY

1. Multiple shrapnel wounds #3, dorsum of right foot, with fracture of right middle
metatarsal and right big toe.

2. Sharphal wounds, multiple, right leg and right thigh.

"LEFT LOWER EXTREMITY-

1. Wound, gunshot, POE- 1 cm. diameter #3, muscle deep, directed downwards, lower
thigh, medial aspect, POX- Noe.

2. Abrasion, 1 x 1 1/2 inches diameter, close to the wound in #1.

3. Wound, gunshot, POE- 1 cm. diameter #2, muscle deep, upper 3rd thigh, left, medial
apect, POX- None.

"RIGHT UPPER EXTREMITY-

1. Wound, gunshot, POE- 1.5 cm. diameter, arm, right, middle 1/3 with fracture of the
humerus, POX- None.

"LEFT UPPER EXTREMITY-

1. Wound, lacerated, muscle, 7 inches long with comminuted fracture of the radius and
ulna, upper 2/3.

2. Wound, gunshot, POE- 1 ½ inches diameter, upper 1/3, arm, mediolateral aspet with
fracture of the humerus, POX- 1 ¾ inches diameter, with averted edges located posteriorly
just above the level of the POE.

"FACE- Abrasions, left cheek.

"BODY:

1. Wound, gunshot, POE- 2 inches diameter, muscle deep, right pubic area, POX- None.

2. Multiple shrapnel wounds, right and left, iliac region.

3. Wound, gunshot, POE- 1 ½ inches diameter, subcutaneous deep, directed downwards,

left lumbar region, POX- None.

4. Wound, gunshot, POE- 1 inch diameter, left posterior axillary line level of the nipple,
directed downwards, fracturing 7th, 8th and 9th ribs penetrating thorasic cavity and
abdominal cavity, POX- None.

5. Wound, gunshot, POE- 1 cm. diameter, left lumbar region along the left paravertebral line,
POC- None.

INTERNAL FINDINGS:
1. Fracture of the 7th, 8th, 9th ribs at the left posterior axillary line, penetrating
diaphragm, perforating greater curvature of the stomach with contents coming out.

2. Penetrating thorasic cavity, hitting the lower lobe of the left lung, perforating the left
ventricle of the heart at 2 points, thru and thru, with severe intrathorasic hemorrhage, left.

CAUSE OF DEATH:

Shock secondary to severe external and intrathorasic hemorrhage due to multiple gunshot
wounds."41

CLEMENTE L. SAMULDE:

"DIAGNOSIS/FINDINGS:

"EXTERNAL FINDINGS:

In-state of Rigor Mortis

"RIGHT LOWER EXTREMITY:

1. Wound, lacerated, 2 x 2 ½ inches in diameter with fracture of 5th metatarsal bone,

dorsum, foot, right.

2. Wound, lacerated, 2 inches in diameter, subcutaneous deep, dorsum, foot, right.

3. Wound, gunshot, POE- ½ cm. in diameter, medial aspect, right knee, POX- None.
Shrapnel extracted underneath the skin and lateral to the wound #3.

4. Wound, gunshot, POE- 1 cm. in diameter, posterior aspect, lower 3rd thigh, POX-
None.

5. Multiple shrapnel wounds.

"LEFT LOWER EXTREMITY-

1. Wound, gunshot, POE- 2 ½ inches in diameter, posterior to the lateral mallelous with
crack fracture of the tibia, directed medially, POX- 2 ½ inches in diameter, medial portion.

2. Wound, gunshot, POE- ½ cm. in diameter, posterior aspect, middle 3rd thigh, left,
POX- None.

3. Wound, gunshot, POE- 1 cm. in diameter, popliteal fossa, directed medially anteriorly,
POX- 3 ½ inches in diameter with maceration of the muscles.

"LEFT UPPER EXTREMITY-

1. Wound, gunshot, POE- 1.5 cm. in diameter, forearm, proximal 1/3, posterior aspect,
directed medially, fracturing the upper end of the ulna, POX- None.
"BODY:

1. Abrasions, multiple at the left iliac region.

2. Wound, gunshot, POE- 2 inches in diameter, muscle deep, left buttock with
maceration of muscles.

3. Wound, gunshot, POE- 1 cm. in diameter, right paravertebral area, level of the right
scapular, directed slightly anteriorly upwards, POX- None.

4. Wound, gunshot, POE- 1.5 cm. in diameter, just below the left shoulder, directed
medially slightly downwards and posteriorly penetrating thorasci cavity.

"INTERNAL FINDINGS:

Fracture of the 2nd rib, penetrating the thorasic cavity and hitting the left upper lobe of the
left lung with severe intrathorasic hemorrhage at the left hemithorax.

"ABDOMINAL CAVITY: No injury seen.

"CAUSE OF DEATH:

Shock secondary to severe external and intrathorasic hemorrhage due to multiple gunshot
wounds."42

Dr. Julito Osunero, Jr., chief of the Ramon Maza, Sr. Memorial Hospital, Sibalom, Antique,
conducted an autopsy on the cadaver of Plaridel Sanchez, IV and found the following:

"FINDINGS:

"EXTERNAL FINDINGS:

1. Gunshot wound 1-inch diameter anterior portion right POE and POX posterior right 3
inches diameter.

2. Gunshot wound at the right cheek muscle depth.

3. Gunshot wound middle 3rd clavicle POE inch diameter anterior and POX 2 inches
diameter back shoulder middle clavicular line.

4. Gunshot wound POE 1 inch diameter left shoulder anterior portion and POX 2 inches
diameter shoulder back.

5. Gunshot wound POE 1 inch volar surface POX palmar portion 2 inches and fracture of
the metatarsal bone ring finger compound.

6. Avulsive wound POE 1 inch lateral and POX 3 inches medial portion left 4 inches long.

7. Gunshot wound POE 1 inch lateral and POX 3 inches medial portion left leg lower 3rd
 8. Gunshot wound POE 1 inch diameter anterior portion POX 4 inches posterior portion
POX 4 inches posterior portion right leg lower 3rd.

9. Gunshot wound abdomen lower quadrant left anterior axillary line POE ½ inch
diameter and POX back lumbar area left 1 inch diameter (POE-1-2-3 adjacent to each other
and POX).

10. Gunshot wound right knee POE medial side 1 inch diameter POX popliteal area right
2 inches diameter.

11. Gunshot wound mid-scapular area right POE 1 inch diameter, POX 2 inches
diameter axillary line at the level of the nipple right.

"INTERNAL FINDINGS:

"CONCLUSIONS:

1. Complete compound fracture humerus middle 3rd right.

2. Compete compound fracture clavicle left middle 3rd.

3. Complete compound fracture humerus upper 3rd right.

4. Complete compound fracture ulna lower 3rd left.

5. Complete fracture tibia-fibula lower 3rd right.

6. Complete compound fracture distal and femur right.

7. Gunshot wound POE mid-scapular area back 1 inch diameter perforating thorasic
cavity. Penetrating right lung lower lobe POX axillary line level of the right nipple.

8. Intra-thorasic hemorrhage one liter clotted and no-clotted blood.

"CAUSE OF DEATH:

1. Hemorrhage massive secondary to multiple gunshot wounds on the body."43

The defense tried to establish that the group of Luna Sanchez ambushed them and they just
returned fire in defense and retaliation against the open gun firing.

Accused Enrico Cabañero testified that in the evening of May 13, 1984, he was one of the escorts of
Assemblyman Arturo F. Pacificador. There were others who were with them namely, Sgt. Dalmacio,
Pat. Mingote, Cpl. Fullon, Pfc Vegafria, C2C Alipala, Marcos Yee (driver), Oscar Sejas (driver) and
Jonathan Gallo. Around 7:00 in the evening, their group left the assemblyman's residence in Lapaz,
Hamtic, and proceeded to Sibalom, Antique where accused Pacificador talked to Sibalom Mayor
Edbert J. Lotilla. At about 10:00 that same evening, they went to Brgy. Sido and fetched Elizabeth
Cuipan.44 They brought her to Mayor Lotilla's house, after which, they proceeded to Belison.45
When they reached the single-lane Pangpang Bridge in Sibalom, Antique, they stopped and parked
their vehicle by the roadside about eight (8) meters from the south end of the bridge. There was an
oncoming vehicle from the north and their lead vehicle, the Nissan jeep, had entered about thirty
(30) meters inside the bridge and it had backed out. As their lead vehicle was backing out, he saw
Jonathan Gallo guiding the Nissan jeep while the vehicle from the north was blowing its horn and
blinking its headlights. Upon seeing what was taking place, Cabañero alighted from the XLT Ford
Fiera followed by Dalmacio. Before reaching the south end of the bridge, the vehicle from the north
end opened fire at the Nissan jeep, instantly hitting Jonathan Gallo who was standing at the right
side of the Nissan jeep. He and Dalmacio fired back.46

While the gun fire was on going, Cabñero rolled to the canal and shouted "evacuate the boss." He
changed his position to avoid being hit by the bullets coming from the vehicle from the north. While
in that position, he continued firing, consuming four (4) short magazines and one (1) long magazine.
When the firing stopped, he ran across the road to the left side of the street facing north and
positioned himself near the bridge. There, he was fired upon. He returned fire and took cover. In the
process, he fell into the canal where he found Marcos Yee, wounded. He lifted Yee's head and
shouted to Alipala and Vegafria for help. Alipala and Vegafria lifted Yee and placed him on the
Nissan jeep. He then told Vegafria to drive the Nissan jeep and bring Yee to the hospital. They
brought Yee to Angel Salazar Memorial General Hospital. Thereafter, they proceeded to Lapaz,
Hamtic to look for Pacificador, but they were told that Pacificador was in Sibalom. At the municipal
building of Sibalom, he saw Pacificador with Fullon and Mingote.47

Accused Reynaldo Alipala testified that at about 7:00 in the evening of May 13, 1984, he, Sgt.
Cabañero, Sgt. Dalmacio, Cpl. Fullon, Pat. Mingote, Oscar Sejas, Marcos Yee, Jonathan Gallo and
Vicente Vegafria escorted Assemblyman Pacificador to Brgy. Sido, Sibalom, Antique after coming
from the assemblyman's house in Lapaz, Hamtic. They used two (2) vehicles a Nissan and an XLT
Ford Fiera.48 On board the Nissan were Yee, the driver, Jonathan Gallo, Pfc. Vegafria and himself.
While on board the XLT Ford Fiera were Oscar Sejas, the driver, Assemblyman Pacificador, Sgt.
Cabañero, Sgt. Dalmacio, Cpl. Fullon and Pat. Mingote. After Pacificador talked with Mayor Lotilla
and Elizabeth Cuipan, they proceeded to Belison.49

Upon reaching Pangpang Bridge in going to Belison, the vehicle coming from the north blinked its
lights and honked while entering the bridge, forcing them to stop. Jonathan Gallo alighted and
guided the Nissan in backing out of the bridge while the vehicle from the north continued following
the Nissan. When the Nissan reached the road, they parked it on the left side facing the north about
eight (8) meters away from the south end of the bridge. Thereafter, he and Vegafria alighted from
the Nissan and stood behind it. When the vehicle from the north was near the Nissan, gunfire came
from the vehicle from the north and Gallo fell to the ground. He and Vegafria returned fire using their
armalite rifles directed against the vehicle which came from the north. While the firing was taking
place, Gallo crawled to their direction and told them that he was hit. He and Vegafria helped Gallo
take cover behind the Nissan after which they resumed firing.50

When the XLT Ford Fiera was about to leave, Alipala and Vegafria helped Gallo board the vehicle.
When Vegafria opened the left door of the Nissan jeep, Yee fell out of the Nissan. Thereafter,
Cabañero shouted that they should board Yee in the Nissan.51 He, Cabañero, Dalmacio, Vegafria
and Yee went to Angel Salazar Memorial General Hospital where they brought Yee for admission
and treatment. Afterwards they proceeded to Lapaz, Hamtic and looked for Assemblyman
Pacificador.52

The testimonies of the other accused Vicente Vegafria, Domingo Dalmacio, Lorenzo Mingote and
Hector Fullon contained the same material points as what their other co-accused testified to before
the court.
Sibalom Mayor Lotilla testified that at about 10:00 in the evening of May 13, 1984, while he was on
his way home from Brgy. Sido, near the junction of the road of Villahermosa and San Juan, he heard
bursts of gunfire. From the sound of it, he estimated that the gunfire came from the direction of the
poblacion considering that he was then on the east of the poblacion. He immediately proceeded to
his house. About five or ten minutes later, he received a word that assemblyman Pacificador was at
the municipal building of Sibalom, Antique. When he arrived, the first person he met was the
assemblyman who hugged and embraced him, thankful that he was saved from the ambush.53

P/Capt, Bonifacio E. Train, station commander of the Integrated National Police, San Jose Police
Station, San Jose, Antique testified that at about 11:30 in the evening of May 13, 1984, accused
Arturo F. Pacificador, accompanied by Fullon and Mingote, reported about the ambush in Pangpang
Bridge, Sibalom, Antique.54 Accused Pacificador requested that P/Capt. Train check on the condition
of Jonathan Gallo who was brought for medical attention at the Ramon Maza Memorial
Hospital.55 Both Jonathan Gallo56 and Marcos Yee57 died.

On March 7, 1996, the trial court rendered a decision finding all the accused guilty beyond
reasonable doubt of the crime charged. The dispositive portion of the decision reads:

"WHEREFORE, in view of the foregoing premises, the Court finds accused Domingo
Dalmacio, Enrico Cabañero, Reynaldo Alipala, Vicente Vegafria, Hector Fullon, and Lorenzo
Mingot guilty beyond reasonable doubt of the crime of multiple murder frustrated murder and
hereby rendered judgment as follows:

"For Multiple Murder:

"Accused are hereby sentenced each to suffer seven (7) reclusion perpetua and to indemnify
the heirs of the victims, jointly and solidarily, the following amounts:

a) 350,000.00 for the death of the seven (7) victims;

b) 37,000.00 as actual damages for victim Clemente Samulde;

c) P20,000.00 as actual damages for victim Rhium Sanchez;

d) P39,000.00 as actual damages for victim Plaridel Sanchez IV;

e) P35,000,00 as actual damages for victim Mamerto Zaldivar, Jr.;

f) P22,510.00 as actual damages for victim Armelito Tamboong; and

g) P70,000.00 for victim Aldrick Sanchez.

"For Frustrated Murder:

"Applying the Indeterminate Sentence Law and there being no mitigating circumstance to
offset an aggravating circumstance, accused are hereby sentenced each to suffer an
indeterminate prison term ranging from nine (9) years, four (4) months and one 91) day of
prision mayor, as minimum, to seventeen (17) years, four (4) months and one (1) day of
reclusion temporal, as maximum, and to indemnify, jointly and solidarily, the offended party
in the amount of P60,000.00 for medicines and hospitalization.
 "In the service of the sentence, unless otherwise disqualified pursuant to the provisions of
Article 29 of the Revised Penal Code, as amended, accused are to be credited with all the
preventive imprisonment they underwent.

"SO ORDERED."58

The trial court found the testimonies of prosecution witnesses clear and profuse with details, heir
combined narration showed how the accused planned and perpetrated the ambush against the
group of Luna Sanchez in the evening of May 13, 1984 at Pangpang Bridge, Sibalom, Antique
causing the death of seven (7) people from the group of Luna Sanchez, and two (2) from the group
of the accused. The prosecution was able to substantiate and prove that it was the group of the
accused who staged the ambush and started the shooting at Pangpang Bridge.

On May 17, 1996, accused Hector Fullon, Lorenzo Mingote, Reynaldo Alipala, Vicente Vegafria and
Domingo Dalmacio filed a joint notice of appeal.59 The case against accused Arturo F. Pacificador
was tried separately.

At the time of the promulgation of the decision on March 7, 1996, accused Enrico Cabañero was
dead. He died while in detention in San Jose, Antique.60 Both his criminal and civil liability arising
from the crime were extinguished by reason of his death.61

On March 6, 2000, accused-appellants filed their brief. Accused-appellants contend that the trial
court erred in ruling that: (1) murder has been proved beyond reasonable doubt by the prosecution;
(2) sufficient evidence existed to establish conspiracy; (3) the aggravating circumstances of
treachery and evident premeditation were present. They reiterated that the group of Luna Sanchez
was the first to fire against them and they merely fired back as an act of retaliation and in self-
defense. Hence, they claim that it was erroneous for the trial court to find all of them guilty of multiple
murder and frustrated murder and sentencing them accordingly.62

Accused-appellants anchor their defense on the theory that the group of the victims staged the
ambush, and that they merely retaliated and fired back as an act of self-defense. In support of such
theory, they presented evidence that all the deceased on the side of the prosecution were found
positive for nitrates indicating that they fired guns, some of which are armalite rifles, others revolvers
or pistols.

We find the submission untenable in light of the evidence extant on the record.

Generally, the burden of proof is upon the prosecution to prove the guilt of the accused beyond
reasonable doubt. Having invoked self-defense as a justifying circumstance, however, accused-
appellants are deemed to have admitted having killed the victims, and the burden of evidence is
shifted on them to establish and prove their claim. To escape liability, they must show the concurrent
presence of all the elements of self-defense, namely: (1) unlawful aggression on the part of the
victims; (2) reasonable necessity of the means employed to prevent or repel it; and (3) lack of
sufficient provocation on the part of the person defending himself.63

Accused-appellants' theory was demolished by prosecution's evidence clearly showing that it was
the group of accused-appellants that ambushed the group of Luna Sanchez at the south end portion
of the single-lane Pangpang Bridge. Rodelo Aleries and Efren Rangos, both of whom had no reason
to testify falsely against accused-appellants, categorically and positively stated in court that accused-
appellants positioned themselves at the southern portion of the bridge, deployed themselves along
the canal where they took cover, and waited for the arrival of the vehicle ridden by the victims.
Except for the lone survivor of the attack, victim Luna Sanchez, all the other passengers died on the
spot due to multiple gunshot wounds. Based on the number of bullet holes that pierced the Ford
Tamaraw ridden by victims on the eve of May 13, 1984, which amounts to around 217 bullet
holes,64 it was highly improbable that the attack could have been initiated by the group of the victims,
especially in light of the fact that the white Nissan vehicle used by accused-appellants merely had
about 32 bullet holes.65 This materially jibes with the way prosecution witnesses Rodelo Aleries and
Efren Hangos described what happened on the night of the crime—that the group led by accused-
appellants rained bullets on the Ford Tamaraw ridden by the victims. 1âwphi1.nêt

Contrary to accused-appellants' claim, only three (3) of the victims were armed with armalite rifles,
namely: Clemente Samulde, Pat. Armelito Tamboong and Mamerto Zaldivar, Jr. Clemente and
Armelito were armed because they were policemen of Pandan, Antique. The fact that some of the
victims were found positive for nitrates does not conclusively show that they fired a gun. It is well
settled in forensic evidence that nitrates are also found in substances other than gunpowder.66 We
noted that scientific experts concur in the view that the result of a paraffin test is not conclusive.
While it can establish the presence of nitrates or nitrites on the hand, it does not always indubitably
show that said nitrates or nitrites were caused by the discharge of firearm. The person tested may
have handled one or more of a number of substances which give the same positive reaction for
nitrates or nitrites, such as explosives, fireworks, fertilizers, pharmaceuticals, and leguminous plants
such as peas, beans, and alfalfa. A person who uses tobacco may also have nitrate or nitrite
deposits on his hands since these substances are present in the products of combustion of tobacco.
The presence of nitrates, therefore, should be taken only as an indication of a possibility but not of
infallibility that the person tested has fired a gun.67

Accused-appellant further questioned the trial court's finding that the multiple killing was attended by
the aggravating circumstances of conspiracy, treachery and evident premeditation.

Conspiracy need not be established by direct evidence, for it may be inferred from the conduct of the
accused, before, during, and after the commission of the crime, which, if all taken together, would
reasonably be strong enough to show a community of criminal design.68

Prosecution witness Luna Sanchez, was present at the scene of the crime, he being one of the
victims. He stated that during the election campaign trails on May 13, 1984, the group of Pacificador,
escorted by the accused-appellants overtook their Ford Tamaraw vehicle several times, and the
latter pointed their guns against them, making it very apparent that accused-appellants were tailing
the group of Luna Sanchez. And ultimately, accused-appellants perpetrated their unlawful design
against the group of Luna Sanchez when they strategically positioned themselves at the southern
end of the single-lane Pangpang Bridge in Sibalom, Antique, parked their vehicle near the foot of the
bridge making sure that the group of Luna Sanchez would not be able pass through and took cover
in the nearby canal and waited for the arrival of their prey. The simultaneous acts of leaving, waiting
for their victims to come out, tailing and firing at them continuously at close range, and escaping
from the crime scene clearly establish a conspiracy among the malefactors.69

Hence, the trial court did not err when it ruled that conspiracy exists. Where the acts of the accused
collectively and individually demonstrate the existence of a common design towards the
accomplishment of the same unlawful purpose, conspiracy is evident, and all the perpetrators will be
liable as principals.70

With regard to the attendance of the qualifying circumstance of treachery, it is a basic precept that
treachery must be proven as indubitably as the killing itself and it cannot be deduced from mere
presumption or sheer speculation.71
The manner by which accused-appellants positioned themselves prior to the ambush demonstrated
treachery. Not only were they armed with high-powered guns and greater in number than the group
of Luna Sanchez; they took advantage of the stillness of the night and took cover at the nearby canal
where they could not be seen, ensuring their own safety in case the group of Luna Sanchez acted in
retaliation and fired back. Under Article 14, paragraph 16 of the Revised Penal Code, 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 specifically to insure its execution
without risk to himself arising from the defense that the offended party might make.72 The
treacherous manner by which accused-appellants perpetrated the crime was shown not only by the
sudden and unexpected attack upon the unsuspecting victims but also by the deliberate manner in
which the attack was perpetrated.73

Furthermore, the trial court correctly ruled that the attack against the group of Luna Sanchez was
evidently premeditated. From the evidence of the prosecution, accused-appellants knew beforehand
the victims' activities during the day .of May 13, 1984, such that on several occasion that day,
accused-appellants seemed to be tailing the vehicle of the victims, at times overtaking them. At one
instance, one of the men on board the accused-appellants' vehicle pointed an armalite rifle in a
threatening manner against the victims. The manner the victims were attacked at about 11:00 in the
evening of the same day was evidently well planned and coordinated. Despite the lapse of several
hours from the time accused-appellants became aware of the victims' presence until the latter
passed through the single-laned bridge, accused-appellants did not abandon their resolve to carry
out their unlawful design. The essence of evident premeditation is that the execution of the criminal
act is preceeded by cool thought and reflection upon the resolution to carry out criminal intent within
a span of time sufficient to arrive at a calm judgment.74

As regards the claim that the testimony of prosecution witness Luna Sanchez was replete with
inconsistencies and contradictions, hence should not be believed, we rule that minor
inconsistencies, far from detracting from the veracity of the testimony, enhance the credibility of the
witness, for they remove any suspicion that his testimony was contrived or rehearsed.75 Moreover,
the findings of the trial court on the credibility of testimony are generally not disturbed on appeal
since "significant focus is held to lie on the deportment of, as well as the peculiar manner in which
the declaration is made by the witness in open court.76

Lastly, accused-appellants question the imposition against them of multiple murder and frustrated
murder considering that only one information has been filed. Invoking Article 48 of the Revised
Penal, accused appellants claim that they should have been sentenced to suffer only one penalty for
the graver offense, the same to be imposed in its maximum period.

This position is manifestly mistaken because of the inapplicability of Article 48, Revised Penal Code.
As the multiple murder and frustrated murder resulted from the firing of several shots against the
eight (8) victims, the crimes are not complex.77 The injuries sustained by the victims were the
consequences of volleys of gunshots.78

The conclusion is inescapable here, that each act of murder and frustrated murder should have been
charged in separate informations because they are not covered by Article 48 of the Revised Penal
Code, accused-appellants may no longer question, at this stage, the duplicitous character of the
information, i.e., charging several separate offenses in one information, to wit: (1) seven (7) separate
acts of murder; and (2) frustrated murder. This defect was deemed waived by their failure to raise it
in a motion to quash before they pleaded to the information.79

Under Section 3, Rule 120 of the Rules of Court, when two or more offenses are charged in a single
complaint or information and the accused fails to object to it before trial, the court may convict the
accused of as many offenses as are charged and proved and impose on him the penalty for each of
them.80 Furthermore, Section 1, Rule 117 of the Rules of Court, states that the accused may move to
quash the information "at any time before entering his plea."

Accused-appellants did not, within the prescribed period, file such motion on the ground of duplicity.
They are deemed to have waived the defect in the information. It is axiomatic that "when the
accused fails, before arraignment, to move for the quashal of such information and goes to trial
thereunder, he thereby waives the objection, and may be found guilty of as many offenses as those
charged in the information and proved during the trial."81 Through accused-appellants' failure to
object to the duplicitous charges, they effectively waived their right against multiple offenses in a
single information.

As the prosecution ably established the elements of murder in each of the seven (7) killings, as well
as the elements of frustrated murder against Luna Sanchez, the trial court did not err in convicting
accused appellants of seven (7) counts of murder and one (1) frustrated murder.

WHEREFORE, the Court hereby AFFIRMS in toto the March 7, 1996 decision of the Regional Trial
Court, Branch 11, San Jose, Antique in Criminal Case No. 3174.

With costs.

SO ORDERED.

G.R. No. 146099 April 30, 2003

PEOPLE OF THE PHILIPPINES, appellee,
vs.
JIMMEL SANIDAD, PONCE MANUEL alias PAMBONG, JOHN DOE (at large) and PETER DOE
(at large), accused.
JIMMEL SANIDAD and PONCE MANUEL alias PAMBONG, appellants.

PER CURIAM:

CONDEMNED TO DEATH by the trial court on 26 July 20001 for the complex crime of murder and
multiple attempted murder, accused-appellants JIMMEL SANIDAD and PONCE MANUEL
alias PAMBONG now seek the reversal of their conviction as we review automatically the judgment
pursuant to Sec. 22, Rep. Act No. 7659, amending Art. 47 of The Revised Penal Code.

On 16 January 1999 at around five o'clock in the afternoon Marlon Tugadi, Jun Quipay, Raymund
Fontanilla, Rolando Tugadi, Pepito Tugadi, Delfin Tadeo, Ricardo Tadeo, Edwin Tumalip, Bobby
Velasquez and Dennis Balueg left Budac, Tagum, Abra, on board a passenger jeepney driven by
Delfin Tadeo to attend a barangay fiesta in the neighboring town of Lagangilang, Abra. When they
arrived they joined the residents in a drinking spree that lasted up to the wee hours the following
morning. In the course of their conviviality, accused-appellants Jimmel Sanidad, Ponce Manuel
alias Pambong and several other residents of Lagangilang joined them in drinking.2 Marlon Tugadi
and accused Jimmel Sanidad were drinking buddies and members of the CAFGU before then.3

On 17 January 1999 at about four o'clock in the morning Jimmel Sanidad and his companions
finished drinking and left.4 Shortly after, the group of Marlon Tugadi also stopped drinking and
headed home for Budac, Tagum, Abra, boarding the same jeepney driven by Delfin Tadeo. Seated
next to Delfin in front were Ricardo Tadeo and Rolando Tugadi, while on the left rear seat were
Marlon Tugadi, Jun Quipay and Raymund Fontanilla. Seated on the right rear seat were Bobby
Velasquez, Dennis Balueg, Edwin Tumalip and Pepito Tugadi.5

With Delfin Tadeo on the wheels the jeepney cruised the rough and gravelly dirt road of Abra-
Cervantes with its passengers completely unaware that danger lurked ahead in the dark and dreary
stretch of the road. The jeepney's headlights sharply ablaze and glaring illuminated the path and
radiated towards the lush vegetation of the surrounding landscape. As the jeepney approached a
plantation, its headlights beamed at accused-appellants Jimmel Sanidad, Ponce Manuel and two (2)
other unidentified companions who were positioned next to a mango tree at the left side of the road
approximately fifteen (15) meters away. Accused-appellants were armed with an armalite, a .45
caliber pistol and shotguns with buckshots.

As the jeepney moved closer, the accused in a classic case of ambuscade suddenly and without
warning unleashed a volley of shots at the jeepney.6 Delfin stepped on the gas in a vain effort to
elude their assailants, but they continued firing at the hapless victims. Bullets plowed the side of the
vehicle and all the passengers sitting at the back instinctively ducked on the floor to avoid being hit.
The accused pursued the vehicle on foot and fired at it incessantly until it finally stalled a few meters
away.7

The jeepney was left in shambles. Its tires, headlights and taillights were shattered; its windshield
broken to pieces, and the front and left sides of the vehicle riddled with bullets.8 Miraculously, almost
all of its passengers, with the exception of Rolando Tugadi, survived the ambush and suffered only
minor injuries. Marlon Tugadi tried to pull his brother Rolando Tugadi from the vehicle to safety only
to realize that he was not only too heavy, he was already dead. As the pursuing gunmen drew near,
Marlon decided to abandon Rolando and scampered away with the other victims until they reached a
bushy area about fifteen (15) meters away from the vehicle.9
Meanwhile, the accused caught up with the crippled jeepney. Moments later, fire engulfed it. The
radiant flames of the burning vehicle illuminated the malefactors who stood nearby and watched the
blaze. It could not be determined whether the accused purposely set the vehicle on fire or the fuel
tank was hit during the shooting that ignited the fire. Marlon Tugadi and Pepito Tugadi later heard
one of the unidentified companions of accused-appellant Sanidad say to him: "My gosh, we were not
able to kill all of them."10 Thereafter, the accused left the scene, firing their guns indiscriminately into
the air as they walked away.11

Apparently shaken and dazed by their terrifying ordeal, the victims hid in a culvert on the side of the
road and did not come out until the police arrived at the scene. The police doused the burning
vehicle with water and found the charred remains of Rolando Tugadi.12 Likewise retrieved at the
crime scene were eighty-five (85) empty shells from an armalite rifle, two (2) empty shells from a .45
caliber pistol, and a slug from another .45 caliber pistol.13

Dr. Maria L. Dickenson, Medico-Legal Officer of Lagangilang, Abra, conducted an autopsy on

Rolando Tugadi immediately after the incident. Her postmortem findings were: (a) carbonization of
the body, (b) long bones of lower extremities still burning, (c) presence of lower half portion of
charred skull, (d) presence of left charred thigh, (e) presence of right charred thigh, and (e) presence
of upper third of charred right leg. Cause of death: burns, generalized, 6th degree.14

An Information for murder with multiple attempted murder and malicious mischief was filed against
Jimmel Sanidad, Ponce Manuel alias Pambong, John Doe and Peter Doe. The defense of the
accused rested on bare denial and alibi. They disclaimed liability for the ambush insisting that at
about 4:00 to 4:30 in the morning of 17 January 1999 they were already at home sleeping when they
heard the clatter of gunfire and an explosion nearby. But the trial court disregarded the defense
interposed by the accused and forthwith convicted them of the complex crime of murder and multiple
attempted murder, and sentenced them to death.

In this mandatory review, the legal questions raised essentially centered on: first, the credibility of
witnesses; and, second, the sufficiency of the prosecution evidence.

We affirm the conviction. We find that the prosecution succeeded overwhelmingly in meeting the
quantum of proof required to overturn the constitutional presumption of innocence. The trial court
properly convicted accused-appellants on the basis of the credible and uncontroverted testimonies
of the victims and other prosecution witnesses.

It is axiomatic that the assessment on the credibility of witnesses is a function best discharged by the
trial court which is in a better position to determine conflicting testimonies after having heard the
witnesses, and observed their deportment and manner of testifying. This Court will not interfere with
the trial court's findings on the credibility of witnesses unless those findings are arbitrary, or facts and
circumstances of weight and influence have been overlooked, misunderstood or misapplied by the
judge which, if considered, would have affected the outcome of the case.15 None of the exceptions
have been shown to exist in the instant case.

Accused-appellants pointed out supposed inconsistencies and inaccuracies in the testimonies of

prosecution witnesses Marlon Tugadi, Jun Quipay, Pepito Tugadi and Raymund Fontanilla, thus —

x x x x . ordinary human conduct is very predictable. When confronted with danger, the first
reaction is to avoid it. But not Jun Quipay, Marlon Tugadi, Pepito Tugadi and Raymund
Fontanilla. While all claimed they have jumped out of the jeep, they did not run away. Instead
they still lingered at about 7–50 meters away from the jeep. So that they saw the attackers
when the jeep exploded. How remarkable is their depiction of the accused as unafraid of an
 exploding jeep! The testimonies of Jun Quipay and Marlon Tugadi cancel each other out.
Marlon said he saw the ambushers come out with guns blazing. Jun said Marlon was lying
down with eyes closed when that moment happened. Again, back to human nature, Marlon
Tugadi and Pepito Tugadi saw with the morning light that their brother Rolando Tugadi is
(sic) no more. A carbonized cadaver he became. And yet they did not tell the police who did
the dastardly acts! How unnatural. And yet they claimed in court that they positively identified
the accused at the time of the ambush.16

After a cursory reading of the transcripts, however, we find that the supposed inconsistent and
inaccurate details are relatively trivial and do not affect the veracity of the testimonies of Marlon
Tugadi, Jun Quipay, Pepito Tugadi and Raymund Fontanilla. Indeed, inconsistencies and
inaccuracies in the testimonies of witnesses which refer to minor and insignificant details do not
destroy their credibility. Such minor inconsistencies and inaccuracies even manifest truthfulness and
candor, and erase any suspicion of a rehearsed testimony.17

At any rate, the ineludible fact remains that Marlon Tugadi, Jun Quipay, Pepito Tugadi and Raymund
Fontanilla were all at the scene of the crime and almost got killed during the ambush. They were
eyewitnesses to the gruesome death of a family member in the hands of accused-appellants. What
is important is that they conveyed to the trial court what they actually perceived, including those
seeming improbabilities, on that fateful day; and they categorically supplied all the facts necessary
for accused-appellants' conviction. Verily, victims of crimes cannot be expected to recall with exact
precision the minutiae of the incident. Human memory is not as unerring as a photograph.18 Different
persons having different reflexes produce varying reactions, impressions, perceptions and
recollections. Their physical, mental and emotional conditions may have also affected the recall of
the details of the incident.

Significantly, the victims positively identified accused-appellants Jimmel Sanidad and Ponce Manuel
in open court as among those who ambushed them in the early morning of 17 January 1999 at the
Abra-Cervantes Road, which led to the death of Rolando Tugadi. Quoted hereunder is an excerpt
from Marlon Tugadi's testimony —

Q: Mr. Witness, do you know one by the name of Jimmel Sanidad?

A: Yes sir.

Q: Will you please focus your eyes around and point to that person Jimmel Sanidad?

A: (Witness pointed to a man seated at the accused bench and when asked of his name
he answered Jimmel Sanidad.)

Q: Why do you know this accused Jimmel Sanidad Mr. Witness?

A: We were in the same batch in the CAFGU sir.

Q: Aside from being a CAFGU batch member, what else do you know of this accused
Jimmel Sanidad?

A: We sometimes drink together when I go to their place, sir.

Q: How about the other accused Ponce Manuel alias Pambong, again I ask you to
focus your eyes around and point at him and identify him?
 A: (Witness pointed to a man seated at the accused bench and when asked of his name
he answered Ponce Manuel).19

Victims Jun Quipay, Pepito Tugadi and Raymund Fontanilla were likewise asked during the trial to
identify the malefactors who staged the ambush, and they all pointed to Jimmel Sanidad and Ponce
Manuel.

It must be stressed that the incidents prior to, during and after the attack provided the victims with
more than sufficient opportunity to identify accused-appellants as the perpetrators of the dastardly
acts. The victims had a drinking session with their assailants that lasted for many hours. During the
ambush itself, the headlights of the victims' vehicle illuminated the assailants. Again, when the
vehicle burst into flames after the ambush, the surroundings were bathed in light including the
assailants who were standing nearby, thus enabling the victims to have a good look at their faces.
These circumstances, coupled with the victims' familiarity with accused-appellants, rendered a
mistaken identification very unlikely.

The general denial and alibi of the defense are too lame to be legally accepted as true, especially
when measured up against the positive identification of accused-appellants. The doctrine is well
settled that denial and alibi are the weakest of all defenses as they are easy to concoct and fabricate
but difficult to disprove. Denial and alibi should be rejected when the identities of accused-appellants
are sufficiently and positively established by eyewitnesses to the crime.

For alibi to be credible, the accused must not only prove his presence at another place at the time of
the commission of the offense but must also demonstrate that it would be physically impossible for
him to be at the locus criminis at that time. In the case at bar, accused-appellants claimed that they
were in their respective houses at the time of the ambush. But the record shows that the house of
accused-appellant Jimmel Sanidad's sister where he was staying in Sitio Bio, San Isidro,
Lagangilang, Abra, is but a mere six (6) to seven (7)-minute walk, or about 700 meters, from the
crime scene.20 While accused-appellant Ponce Manuel lived "in the same place, (in) the same
community."21

Equally untenable is accused-appellants' assertion that the delay of the victims in identifying their
ambushers for more than four (4) weeks points to the conclusion that "all the survivors of the
ambush were really and timely clueless as to who the perpetrators of the ambush (were)."22

Delay in reporting a crime to the authorities is not an uncommon phenomenon. The rule is, delay by
a witness in divulging what he or she knows about a crime is not by itself a setback to the evidentiary
value of such witness' testimony, where the delay is sufficiently justified by any acceptable
explanation. Thus, a well-founded fear of reprisal or the individual manner by which individuals react
when confronted by a gruesome event as to place the viewer in a state of shock for sometime, is a
valid excuse for the temporary silence of witnesses. As correctly observed by the Solicitor General in
the present case —

x x x the victims in the instant case were survivors of an extremely violent incident which
inflicts severe concomitant psychological stress on them. Considering also that the survivors
were being investigated by the police from another municipality where the perpetrators not
only reside but one of them was even a member of the CAFGU, it is a natural reaction for the
victims not to reveal that they know the identities of the perpetrators and induce them to take
action to prevent the victims from testifying x x x x Furthermore, Marlon Tugadi insisted to
the police during the investigation that he knew who ambushed them but that he would talk
only after his brother's interment. This hardly qualifies as an unusual behavior.23
Conspiracy and treachery, as the trial court found, attended the commission of the crime. For
collective responsibility to be established, it is not necessary that conspiracy be proved by direct
evidence of a prior agreement to commit the crime. Only rarely would such an agreement be
demonstrable because criminal undertakings, in the nature of things, are rarely documented by
written agreements. The concerted actions of accused-appellants, however, clearly evinced
conspiracy. Their simultaneous acts of peppering the victims' jeepney with bullets, and thereafter
chasing the vehicle to prevent its escape, were undoubtedly in pursuance of a common felonious
design. All these sufficiently prove beyond reasonable doubt that they conspired to consummate the
killing of the victim.24

On treachery, the deadly successive shots of accused-appellants did not allow the victims any
opportunity to put up a decent defense. The victims were like a flock of sheep waylaid and
ferociously attacked by a pack of ravening wolves. While the victims might have realized a possible
danger to their persons when they saw accused-appellants, all armed and positioned in a mango
tree ahead of them, the attack was executed in such a vicious manner as to make the defense, not
to say a counter-attack, virtually impossible.

Under the circumstances, it is plain to us that accused-appellants had murder in their hearts when
they waylaid their unwary victims. They must consequently be held liable for their acts. Insofar as
victims Marlon Tugadi, Jun Quipay, Raymund Fontanilla, Pepito Tugadi, Delfin Tadeo, Ricardo
Tadeo, Edwin Tumalip, Bobby Velasquez and Dennis Balueg are concerned, although they barely
escaped the ambush with superficial injuries does not alter the nature of accused-appellants'
participation in the crime of murder except that not one of them having suffered fatal injuries which
could have resulted in their death, accused-appellants should only be held guilty of attempted
murder. Accused-appellants had commenced their criminal scheme to liquidate all the victims
directly by overt acts, but were unable to perform all the acts of execution that would have brought
about their death by reason of some cause other than their own spontaneous desistance, that is, the
victims successfully dodged the hail of gunfire and escaped.

We fully agree with the lower court that the instant case comes within the purview of Art. 48 of The
Revised Penal Code which, speaking of complex crimes, provides that 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 in its maximum period." In a
complex crime, although two or more crimes are actually committed, they constitute only one crime
in the eyes of the law as well as in the conscience of the offender.25

Although several independent acts were performed by the accused in firing separate shots from their
individual firearms, it was not possible to determine who among them actually killed victim Rolando
Tugadi. Moreover, there is no evidence that accused-appellants intended to fire at each and every
one of the victims separately and distinctly from each other. On the contrary, the evidence clearly
shows a single criminal impulse to kill Marlon Tugadi's group as a whole.26 Thus, one of accused-
appellants exclaimed in frustration after the ambush: "My gosh, we were not able to kill all of
them."27 Where a conspiracy animates several persons with a single purpose, their individual acts
done in pursuance of that purpose are looked upon as a single act, the act of execution, giving rise
to a single complex offense.28

The penalty for the most serious offense of murder under Art. 248 of The Revised Penal Code as
amended by Rep. Act No. 7659 is reclusion perpetua to death. It therefore becomes our painful duty
in the instant case to apply the maximum penalty in accordance with law, and sentence accused-
appellants to death.
WHEREFORE, the Decision of the court a quo of 26 July 2000 finding accused-appellants JIMMEL
SANIDAD and PONCE MANUEL alias PAMBONG guilty of the complex crime of murder and
multiple attempted murder and imposing upon them the supreme penalty of DEATH is AFFIRMED.

Accused-appellants are likewise ordered jointly and severally to: (a) INDEMNIFY the heirs of the
deceased victim Rolando Tugadi in the amount of P50,000.00 as civil indemnity as well as
P50,000.00 as moral damages; and, (b) PAY victim Delfin Tadeo the sum of P50,000.00 for the loss
of his jeepney.

In accordance with Art. 83 of The Revised Penal Code, as amended by Sec. 25 of Rep. Act No.
7659, upon the finality of this Decision, let the records of this case be forthwith forwarded to Her
Excellency the President for the possible exercise of her pardoning power.

Costs de oficio.

SO ORDERED.
G.R. No. 141125 February 28, 2002

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
JEFFREY GARCIA y CARAGAY and THREE JOHN DOES, accused.
JEFFREY GARCIA y CARAGAY, accused-appellant.

DECISION

PER CURIAM:

This is an automatic review pursuant to Article 47 of the Revised Penal Code, as amended by
Section 22 of Republic Act No. 7659, of the decision of the Regional Trial Court of Baguio City,
Branch 6, dated October 28, 1999, convicting accused-appellant Jeffrey Garcia y Caragay of
Forcible Abduction with Rape and three counts of Rape, and sentencing him to death. 1

The victim, Cleopatra Changlapon, was nineteen years old and a sophomore student of B.S.
Physical Therapy at the Baguio Central University. On July 14, 1998, she left school at 6:30 p.m. to
go home to Km. 3, La Trinidad, Benguet. As she was crossing Bonifacio Street, Baguio City, she
saw a white van approaching so she stopped to let it pass. Suddenly, the van stopped in front of her.
The rear door slid open and Cleopatra was pulled by the arms into the van. She struggled as the
door closed and the van sped away. Something was sprayed on her face which made her eyes sting
and feel dizzy. She shouted, then she felt a fist blow on her stomach and she fell unconscious. 2

When Cleopatra came to, she was inside a room. She was totally undressed and was lying flat on
her back on a bed. In the room with her were four men. One of them, who had Bombay features,
was also totally naked while the other three were clad in briefs and smoking cigarettes. The
Bombay-looking man lay on top of her. She tried to push him away but he held her left arm. Another
man with long hair, whom she later identified as accused-appellant Jeffrey Garcia, burned her right
chin with a lighted cigarette. Cleopatra fought back but accused-appellant held her right arm. While
accused-appellant was seated on her right side and holding her, the Bombay-looking man
proceeded to have sexual intercourse with her. She tried to kick him and close her legs, but two men
were holding her feet. The two men boxed her thighs and burned her legs with cigarettes.3

After the Bombay-looking man finished having sexual intercourse with Cleopatra, accused-appellant
took his turn and went on top of her. One of the men sat on her right leg and pinned it down, while
another held her left leg. Cleopatra tried to punch accused-appellant with her right hand, but the
Bombay-looking man held her right arm. Accused-appellant then had sexual intercourse with her
while holding her left arm. 4

The third man, whom Cleopatra noted had pimples on his face, went on top of her. The Bombay-
looking man was still holding her right arm, while the man on top of her held her left arm. She tried to
close her legs but someone hit her right thigh, which forced her to keep her legs apart. The third man
with pimples succeeded in having carnal knowledge of her. 5

The fourth man was next in raping Cleopatra. By that time, she was feeling helpless and was too
tired to struggle. As the fourth man was having sexual intercourse with her, she saw the Bombay-
looking man burning her panties with a lighted cigarette. She closed her eyes and heard the men
laughing. After the fourth man finished raping her, he got up. She felt dizzy and her private parts
were aching. She opened her eyes and tried to move, but accused-appellant hit her on the
abdomen. 6

One of the men again sprayed something on Cleopatra’s face which made her vision blurred. She
heard somebody say that it was 1:30.7 After that, she blacked out. When she regained
consciousness, she was lying by the roadside somewhere between Tam-awan and Longlong. It was
still dark. She already had her clothes on. She felt pain all over her body and was unable to move. A
taxi passed by and picked her up. Although she was afraid to ride the taxi, she boarded it just to get
home. The taxi brought her to her house.8

Her aunt, Rufina Angog, saw Cleopatra alight the taxi crying. She also noticed that Cleopatra’s
clothes were inverted and she smelled bad. She woke up Cleopatra’s brothers and cousins.9 They
asked her what happened. Cleopatra just kept crying and was unable to talk. After some time, when
she was able to regain her composure, she told them that she had been raped by four men. 10

The following day, July 15, 1998, Cleopatra was brought to the Baguio City Police Station. After
giving her statement to the police, she was brought to the Crime Laboratory of the Baguio City
Police, where she was examined by Dr. Vladimir Villaseñor.

In his Medico-Legal Report, Dr. Villaseñor wrote the following findings:

FINDINGS:

General and Extra-genital:

Fairly nourished, fairly developed coherent female subject. Breasts are hemispherical with light
brown areola and nipples from which no secretion could be pressed out. Abdomen is soft and flabby.

The following are the injuries noted:

1. Second degree burns, mental region, measuring 1.3.1cm, 3cm from the anterior midline.

2. Second degree burns, left supra-mammary region, measuring 1 x 1cm, 8cm from the
anterior midline.

3. Second degree burns, left supra-mammary region, measuring 0.6x0.6 cm, 8.5cm from the
anterior midline.

4. Second degree burns, left hypothenar region, measuring 1x0.5cm, 7cm from the posterior
midline.

5. Second degree burns, left middle 3rd of the left thigh, measuring 2x1cm, 13cm from the
anterior midline.

6. Second degree burns, middle 3rd of the right thigh, measuring 1x 1cm, 10cm from the
anterior midline.

7. Contusion, left mammary region, measuring 3x1cm, 5cm from the anterior midline.

8. Contusion, right mammary region, measuring 1x1cm, 9cm from the anterior midline.
 9. Contusion, middle 3rd of the right arm, measuring 5x3cm, 3cm from the anterior midline.

10. Contusion, middle 3rd of the right thigh, measuing 6x4cm, 3cm from the anterior midline.

11. Hematoma, left zygomatic region, measuring 4x4cm 7cm from the anterior midline.

There is tenderness on the mammary region, both thighs and at the abdominal region.

Genital:

There is abundant growth of pubic hair. Labia majora are full convex, gaping, with the congested
abraded labia minora presenting in between. On separating the same is disclosed a congested
hymen with shallow fresh lacerations at 7, 8 and 9 o’clock and deep fresh laceration at 6 o’clock
positions. External vaginal orifice offers strong resistance to the introduction of the examining index
finger and the virgin-sized vaginal speculum. Vaginal canal is narrow with prominent rugosities.
Cervix is congested with moderate amount of whitish secretion.

CONCLUSION:

Findings are compatible with recent loss of virginity.

Barring unforeseen complications, it is estimated that the above injuries will resolve in 14-15 days.

REMARKS:

Vaginal and peri-urethral smears are negative for gram (-) diplococci and POSITIVE for
spermatozoa. 11

The panties that Cleopatra was wearing was also submitted to the Crime Laboratory for
examination. Dr. Villaseñor found cigarette burns and seminal stains, 12 as well as stains of blood on
the panties. 13 The Medico-Legal Report states:

SPECIMEN SUBMITTED:

Specimen "A" - One (1) white printed panty with cigarette burns and with suspected seminal stains.

xxx xxx xxx

FINDINGS:

Biochemical examination conducted on the above-mentioned specimen gave POSITIVE result to the
test for the presence of seminal stains.

CONCLUSION:

Specimen "A" revealed the presence of seminal stains. 14

On July 17, 1998, Cleopatra went back to the police station and gave a description of the four rapists
to the cartographer. 15 She likewise executed another sworn statement to the police. 16
Meanwhile, accused-appellant was arrested at 4:30 p.m. of July 17, 1998 in connection with another
rape charge against him filed by a certain Gilda Mangyo.

The cartographic sketches were published in the Sun-Star newspaper. Police Officers Gilbert Bulalit
and Archibald Diaz saw the sketches and noticed that one of the suspects depicted in the
cartographic sketch bore a striking resemblance to accused-appellant, who was in their
custody. 17 On July 26, 1998, Cleopatra was summoned to the police station to identify accused-
appellant. She was brought to the upper floor of the police building and asked to look below on the
basketball court of the city jail and see if any of the inmates looked familiar to her. 18 Cleopatra
recognized accused-appellant among those watching the basketball game. 19

PO1 Bulalit brought accused-appellant to the office upstairs. When Cleopatra saw accused-appellant
face to face, she started to tremble and cry. Then she tried to attack him but she was restrained by
the police officers. 20 On the same day, Cleopatra gave a supplemental statement to the police,
confirming her identification of accused-appellant as one of her rapists.21

Inquest proceedings followed in due course. 22 On July 27, 1998, formal charges for forcible
abduction with rape were brought against accused-appellant and three John Does, under an
information which alleged:

That on or about the 14th day of July, 1998, in the City of Baguio, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and
mutually aiding one another, did then and there willfully, unlawfully and feloniously, and by means of
force and intimidation abduct CLEOPATRA CHANGLAPON, 19 years old, by dragging her inside a
van and taking her to Tam-awan Village, Baguio City, against her will and with lewd design, and
once inside a house, had carnal knowledge of her, also by means of force and intimidation and
against her will.

CONTRARY TO LAW. 23

The information was docketed as Criminal Case No. 15805-R of the Regional Trial Court of Baguio
City, Branch 6. Accused-appellant was arraigned, wherein he entered a plea of not guilty. Trial
ensued as against him, while the other three unidentified accused remained at large.

Accused-appellant testified that he spent the whole day of July 14, 1998 at the boarding house
where his brother-in-law lived, located at No. 36 Torres Bugallon Street, Aurora Hills, Baguio City.
His brother-in-law asked him to go there to take care of his nephew. That evening, while he was in
the said house watching television, some of his friends came over to visit him. They brought a bottle
of gin and began to have a drinking session. Accused-appellant did not join them because his
stomach was upset. Accused-appellant’s brother-in-law arrived a little before midnight, after which
his guests left. 24 When asked about the charges of rape against him, he denied the same. 25

Catherine Faith Madella was among those who visited accused-appellant in the evening of July 14,
1998. She came to know him through her friend, Joy Tabinas, who was a tenant at the said boarding
house. Madella testified that she went to the boarding house on July 14, 1998 at 9:00 p.m. At 12:00
midnight, she went to the bedroom of Joy Tabinas and slept there. 26 Her testimony was corroborated
by her boyfriend, Ronaldo T. Valdez, who also testified for the defense.27

Joy Tabinas likewise testified that on July 14, 1998, she was at the boarding house. She watched
1âwphi1

television with accused-appellant from 6:00 to 10:00 p.m. 28

On October 28, 1999, the trial court rendered its decision convicting accused-appellant of one count
of forcible abduction with rape and three counts of rape. The dispositive portion of the judgment
reads:

WHEREFORE, the Court Finds the Accused Jeffrey Garcia guilty beyond reasonable doubt of the
complex crime of Forcible Abduction with Rape and likewise of the three (3) crimes of rape in
conspiracy with three (3) others whose identities and whereabouts are yet unknown as charged in
the Information and hereby sentences him to the supreme penalty of DEATH in each of the 4
offenses aforementioned; to indemnify the offended party, Cleopatra Changlapon, the sum of One
Hundred Forty Six Thousand, One Hundred Twenty Five Pesos and Seventy Five Centavos (P
146,125.75) as actual damages and Fifty Thousand Pesos as moral damages without subsidiary
imprisonment in case of insolvency and to pay one fourth (1/4) of the costs.

The police authorities are directed to exert all efforts to identify and arrest the three other accused
whose identities and whereabouts are yet unknown.

Meantime, pending their arrests, the case is Archived in respect to the three (3) other accused
whose identities and whereabouts are yet unknown to be revived upon their arrest.

SO ORDERED. 29

In his Brief, accused-appellant raises the following errors:

THE COURT A QUO GRAVELY ERRED IN FINDING HEREIN ACCUSED-APPELLANT JEFFREY

GARCIA Y CARAGAY GUILTY BEYOND REASONABLE DOUBT FOR THE COMPLEX CRIME OF
FORCIBLE ABDUCTION WITH RAPE AND FOR THREE (3) COUNTS OF RAPE ALLEGEDLY
COMMITTED IN CONSPIRACY WITH THREE (3) OTHERS WHOSE IDENTITIES AND
WHEREABOUTS ARE STILL UNKNOWN.

II

THE COURT A QUO GRAVELY ERRED IN NOT GIVING SCANT CONSIDERATION TO THE
THEORY OF THE DEFENSE THAT ACCUSED-APPELLANT JEFFREY GARCIA Y CARAGAY IS
ONLY A LOOK-ALIKE OF THE REAL CULPRIT.

III

THE COURT A QUO GRAVELY ERRED IN FINDING THAT CLEOPATRA CHANGLAPON HAD
POSITIVELY IDENTIFIED JEFFREY GARCIA Y CARAGAY AS ONE OF THOSE WHO ABDUCTED
AND RAPED HER. 30

Accused-appellant assails his conviction based on complainant’s identification. According to him, the
identification was improperly suggested by the police. We are not persuaded. Based on our own
review of the records of this case, we find that complainant was neither influenced nor induced by
the police to point to accused-appellant as one of her molesters. On the contrary, the transcripts
convincingly show that complainant was left to freely study the faces of the thirty or more inmates on
the basketball court below to see whether she recognized any of them. 31 There was no suggestion
from the police to point to the new detainee, who had just been arrested on another rape charge.
Owing to the gravity of the crime and penalty involved, we have meticulously studied the testimony
of complainant Cleopatra Changlapon and find it to be clear, straightforward and categorical. The
details of her narration are consistent on all material points. Her actions throughout her ordeal
correspond to normal human behavior. We take particular note of her natural and spontaneous
reaction of crying and attacking her molester when brought before her face to face. The records also
eloquently exhibit that she repeatedly cried throughout her testimony. All of these actuations bear
the ring of truth and deserve full faith and credit.

More importantly, complainant’s narration of the events is well substantiated by the physical
evidence. The second degree burns found on her face, chest and thighs prove that she was indeed
burned with lighted cigarettes whenever she attempted to fight her assailants. The medico-legal
officer confirmed that they were consistent with cigarette burns. 32 Furthermore, the contusions found
on her body were said to be caused by a blunt instrument like a closed fist. 33 This confirms her
testimony that she was repeatedly hit to stop her from struggling. The medico-legal officer placed the
time of infliction of the external physical injuries on complainant within the last twenty-four
hours. 34 The findings on her genitals --- namely the gaping labia majora, the congested and abraded
labia minora, and the lacerations --- all suggest the entry of a foreign object, such as a fully erect
male organ. 35 Finally, the presence of spermatozoa further confirms that complainant recently had
sexual intercourse. 36

In the face of complainant’s positive and categorical declarations that accused-appellant was one of
her rapists, accused-appellant’s alibi must fail.

It is a well-settled rule that positive identification of the accused, where categorical and consistent
and without any showing of ill motive on the part of the eyewitness testifying on the matter, prevails
over alibi and denial which if not substantiated by clear and convincing evidence are negative and
self-serving evidence undeserving of weight in law. 37

Furthermore, in order that the defense of alibi may prosper, accused-appellant must establish not
only that he was somewhere else when the crime was committed but also that it was physically
impossible for him to have been at the scene of the crime at the time it was committed. 38 In the case
at bar, the place of commission of the rapes --- somewhere between Tam-awan and Longlong ---
and the boarding house where accused-appellant alleged he was in the evening of July 14, 1998,
are both situated within Baguio City. The distance between Tam-awan and Aurora Hills, especially at
dawn, can be traversed in just a matter of minutes.

Indeed, as pointed out by the trial court, accused-appellant’s witnesses failed to account for his
whereabouts after 12:00 midnight. At the time of the rape, complainant distinctly heard one of her
molesters state the time as 1:30. Since it was still dark when complainant was dropped off on the
side of the road, it can safely be assumed that the crimes were committed at dawn.

The trial court, therefore, did not err in convicting accused-appellant of the complex crime of forcible
abduction with rape. The two elements of forcible abduction, as defined in Article 342 of the Revised
Penal Code, are: (1) the taking of a woman against her will and (2) with lewd designs. The crime of
forcible abduction with rape is a complex crime that occurs when there is carnal knowledge with the
abducted woman under the following circumstances: (1) by using force or intimidation; (2) when the
woman is deprived of reason or otherwise unconscious; and (3) when the woman is under twelve
years of age or is demented. 39

In the case at bar, the information sufficiently alleged the elements of forcible abduction, i.e., the
taking of complainant against her against her will and with lewd design. It was likewise alleged that
accused-appellant and his three co-accused conspired, confederated and mutually aided one
another in having carnal knowledge of complainant by means of force and intimidation and against
her will.

Aside from alleging the necessary elements of the crimes, the prosecution convincingly established
that the carnal knowledge was committed through force and intimidation. Moreover, the prosecution
sufficiently proved beyond reasonable doubt that accused-appellant succeeded in forcibly abducting
the complainant with lewd designs, established by the actual rape. 40

Hence, accused-appellant is guilty of the complex crime of forcible abduction with rape. He should
also be held liable for the other three counts of rape committed by his three co-accused, considering
the clear conspiracy among them shown by their obvious concerted efforts to perpetrate, one after
the other, the crime. As borne by the records, all the four accused helped one another in
consummating the rape of complainant. While one of them mounted her, the other three held her
arms and legs. They also burned her face and extremities with lighted cigarettes to stop her from
warding off her aggressor. Each of them, therefore, is responsible not only for the rape committed
personally by him but for the rape committed by the others as well. 41

However, as correctly held by the trial court, there can only be one complex crime of forcible
abduction with rape. The crime of forcible abduction was only necessary for the first rape. Thus, the
subsequent acts of rape can no longer be considered as separate complex crimes of forcible
abduction with rape. They should be detached from and considered independently of the forcible
abduction. Therefore, accused-appellant should be convicted of one complex crime of forcible
abduction with rape and three separate acts of rape. 42

The penalty for complex crimes is the penalty for the most serious crime which shall be imposed in
its maximum period. Rape is the more serious of the two crimes and, when committed by more than
two persons, is punishable with reclusion perpetua to death under Article 266-B of the Revised
Penal Code, as amended by Republic Act No. 8353. Thus, accused-appellant should be sentenced
to the maximum penalty of death for forcible abduction with rape. 43

As regards the other three acts of rape, accused-appellant can only be sentenced to reclusion
perpetua. The trial court appreciated the aggravating circumstances of nighttime, superior strength
and motor vehicle. However, these were not alleged in the information. Under the amended
provisions of Rule 110, Sections 8 and 9 of the Revised Rules on Criminal Procedure, which took
effect on December 1, 2000, aggravating as well as qualifying circumstances must be alleged in the
information, otherwise, they cannot be considered against the accused even if proven at the trial.
Being favorable to accused-appellant, this rule should be applied retroactively in this case. 44 Hence,
there being no aggravating circumstance that may be appreciated, and with no mitigating
circumstance, the lesser of the two indivisible penalties shall be applied, pursuant to Article 63,
paragraph (2) of the Revised Penal Code.

Anent the matter of damages, the trial court correctly awarded the amount of P50,000.00 as moral
damages. This was justified by complainant’s emotional and physical suffering, as narrated in her
1âwphi1

testimony. 45 Notably, the prosecution successfully proved that complainant lost her virginity during
the rape. 46 As she narrated, virginity is a highly regarded virtue among the people of Kalinga. 47

However, the trial court failed to award civil indemnity to the complainant. We have ruled that if rape
1âwphi 1

is committed or qualified by any of the circumstances which authorize the imposition of the death
penalty, the civil indemnity shall be not less than P75,000.00. 48 For the other three counts of simple
rape, where the proper penalty is reclusion perpetua, accused-appellant is liable for civil indemnity in
the amount of P50,000.00 for each count. 49
We also find that the actual damages awarded by the trial court was well substantiated. Complainant
presented the required receipts for her medications, transportation and other
expenses. 50 Complainant testified that as a member of the Kalinga tribe, she had to undergo
the korong and songa rituals, wherein they had to butcher several chickens, pigs, and carabaos,
thereby incurring total expenses of P90,000.00. 51 These rituals were intended for complainant’s
safety and to call on the tribe’s spirits so that no more violence or misfortune may befall her. 52 The
grand total of all these actual expenses, including those for medicines and transportation, as duly
proved by the receipts and computations presented in evidence, is P 146,125.75, 53 the amount
awarded by the trial court.

WHEREFORE, based on the foregoing, the Decision of the Regional Trial Court of Baguio City,
Branch 6, in Criminal Case No. 15805-R, convicting accused-appellant Jeffrey Garcia y Caragay of
one count of Forcible Abduction with Rape and three counts of Rape, is AFFIRMED with
MODIFICATIONS. As modified, accused-appellant is sentenced to suffer the penalty of Death for the
complex crime of Forcible Abduction with Rape and Reclusion Perpetua for each of the three counts
of rape. Further, accused-appellant is ordered to pay complainant Cleopatra Changlapon the
amounts of P146,125.75 as actual damages, P75,000.00 as civil indemnity and P50,000.00 as moral
damages. Costs against accused-appellant.

In accordance with Article 83 of the Revised Penal Code, as amended, upon finality of this Decision,
let the records of this case be forwarded to the Office of the President for possible exercise of
pardoning power or executive clemency.

SO ORDERED.
G.R. No. 109266 December 2, 1993

MIRIAM DEFENSOR SANTIAGO, petitioner,

vs.
HON. JUSTICE FRANCIS GARCHITORENA, SANDIGANBAYAN (First Division) and PEOPLE
OF THE PHILIPPINES, respondents.

Amado M. Santiago, Jr. for petitioner.

The Solicitor General for the People of the Philippines.

QUIASON, J.:

This is a petition for certiorari under Rule 65 of the Revised Rules of Court to set aside: (a) the
Resolution dated March 3, 1993 in Criminal Case
No. 16698 of the Sandiganbayan (First Division) and to declare Presiding Justice Francis
Garchitorena of the Sandiganbayan, disqualified from acting in said criminal case; and (b) the
Resolution of said court promulgated on
March 14, 1993, which deemed as "filed" the 32 Amended Informations against petitioner (Rollo, pp.
2-35 and pp. 36-94).

On May 1, 1991, petitioner was charged in Criminal Case No. 16698 of the Sandiganbayan with
violation of Section 3(e) of R.A. No. 3019, as amended, otherwise known as the Anti-Graft and
Corrupt Practices Act, allegedly committed by her favoring "unqualified" aliens with the benefits of
the Alien Legalization Program (Rollo, p. 36).

On May 24, 1991, petitioner filed with us a petition for certiorari and prohibition, docketed as G.R.
No. 99289-99290 (Santiago v. Vasquez, 205 SCRA 162 [1992]), to enjoin the Sandiganbayan from
proceeding with Criminal Case No. 16698 on the ground that said case was intended solely to
harass her as she was then a presidential candidate. She alleged that this was in violation of Section
10, Article IX-C of the Constitution which provides that "(b)ona fide candidates for any public office
shall be free from any form of harassment and discrimination." The petition was dismissed on
January 13, 1992.

On October 16, 1992, petitioner filed a motion for inhibition of Presiding Justice Garchitorena, which
motion was set for hearing on November 13, 1992 at 8:00 A.M. (Rollo, pp. 38-41).

On October 27, 1992, the Sandiganbayan (First Division), of which Presiding Justice Garchitorena is
a member, set the criminal case for arraignment on November 13, 1992 at 8:00 A.M. (Rollo, p. 42)

On November 6, 1992, petitioner moved to defer the arraignment on the grounds that there was a
pending motion for inhibition, and that petitioner intended to file a motion for a bill of particulars
(Rollo, pp. 43-44).

On November 9, 1992, the Sandiganbayan (First Division) denied the motion to defer the
arraignment (Rollo, p. 45).

On November 10, 1992, petitioner filed a motion for a bill of particulars (Rollo, pp. 47-48). The
motion stated that while the information alleged that petitioner had approved the application or
legalization of "aliens" and gave them indirect benefits and advantages it lacked a list of the favored
aliens. According to petitioner, unless she was furnished with the names and identities of the aliens,
she could not properly plead and prepare for trial.

On November 12, 1992 and upon motion of petitioner in G.R.

No. 107598 (Miriam Defensor Santiago v. Sandiganbayan, et al.), we directed the Sandiganbayan
(First Division) to reset the arraignment to a later date and to dispose of the two incidents pending
before it (Re: disqualification of Presiding Justice Garchitorena and the motion for the bill of
particulars).

At the hearing on November 13, 1992 on the motion for a bill of particulars, the prosecution stated
categorically that they would file only one amended information against petitioner.

However, on December 8, 1992, the prosecution filed a motion to

admit the 32 Amended Informations (Criminal Cases Nos. 18371 to 18402; Rollo, pp. 61-126).

On March 3, 1993, Presiding Justice Garchitorena issued the questioned Resolution dated March
11, 1993, denying the motion for his disqualification (Rollo, pp. 151-164).

On March 14, 1993, the Sandiganbayan (First Division) promulgated a resolution, admitting the 32
Amended Informations and ordering petitioner to post the corresponding bail bonds within ten days
from notice (Rollo, pp. 165-185). Petitioner's arraignment on the 32 Amended Informations was set
for
April 12, 1993 at 8:00 A.M. (Rollo, p. 186).

Hence, the filing of the instant petition.

Acting on the petition for the issuance of a restraining order, we issued the Resolution dated March
25, 1993, ordering Presiding Justice Garchitorena "to CEASE and DESIST from sitting in the case
until the question of his disqualification is finally resolved by this Court and from enforcing the
resolution dated March 11, 1993, ordering petitioner to post bail bonds for the 32 Amended
Informations and from proceeding with the arraignment on
April 12, 1993" (Rollo, p. 194).

Re: Disqualification of the Sandiganbayan Presiding Justice

The petition for disqualification of Presiding Justice Garchitorena is based on the publication of is
letter in the July 29, 1992 issue of the Philippine Star, which to petitioner "prejudged" the validity of
the information filed
against her. Petitioner claims that Presiding Justice Garchitorena "cannot be expected to change the
conclusions he has subconsciously drawn in his public statements . . . when he sits in judgment on
the merits of the case . . ." (Rollo, pp. 16-17).

The letter in question was written in response to an item in Teodoro Benigno's column in the July 22,
1992 issue of the Philippine Star, criticizing the Sandiganbayan for issuing on July 11, 1992 a hold-
departure order against petitioner. Benigno wrote that said order reflected a "perverse morality" of
the Sandiganbayan and the lack of "legal morality" of its Presiding Justice, thus:

I cannot, for example accept the legal morality of Sandiganbayan Justice Francis
Garchitorena who would stop Miriam Defensor Santiago from going abroad for a
Harvard scholarship because of graft charges against her. Some of the most
 perfidious Filipinos I know have come and gone, left and returned to these shores
without Mr. Garchitorena kicking any kind of rumpus. Compared to the peccadilloes
of this country's outstanding felons, what Miriam is accused of is kindergarten stuff.
The Sandiganbayan Supremo got a lot of headlines for stopping Miriam but I contend
this is the kind of perverse morality we can do without (Rollo, p. 156).

The portion of the letter of Presiding Justice Garchitorena, which petitioner finds objectionable, reads
as follows:

(c) Mrs. Santiago has never informed any court where her cases are pending of her
intention to travel, whether the Regional Trial Court where she is charged with
soliciting donations from people transacting with her office at Immigration or before
the Sandiganbayan where she is charged with having favored unqualified aliens with
the benefits of the Alien Legalization Program nor even the Supreme Court where
her petition is still pending (Rollo, p. 158).

In particular, petitioner considered as prejudgment the statement of Presiding Justice Garchitorena

that petitioner had been charged before the Sandiganbayan "with having favored unqualified aliens
with the benefits of the Alien Legalization Program."

The statement complained of was just a restatement of the Information filed against petitioner in
Criminal Case No. 16698 in connection with which the hold-departure order was issued. Said
Information specified the act constituting the offense charged, thus:

That on or about October 17, 1988, or for sometime prior or subsequent thereto, in
Manila, Philippines, and within the jurisdiction of this Honorable Court, accused
Miriam Defensor-Santiago, being then the Commissioner of the Commission on
Immigration and Deportation, with evident bad faith and manifest partiality, did then
and there willfully, unlawfully and criminally approve the application for legalization of
aliens who arrived in the Philippines after January 1, 1984 in violation of Executive
Order No. 324 dated April 13, 1988 which does not allow the legalization of the
same, thereby causing undue injury to the government and giving unwarranted
benefits and advantages to said aliens in the discharge of the official and
administrative functions of said accused (Rollo, p. 36).

It appears that petitioner tried to leave the country without first securing the permission of the
Sandiganbayan, prompting it to issue the hold-departure order which Benigno viewed as uncalled
for. The letter of Presiding Justice Garchitorena, written in defense of the dignity and integrity of the
Sandiganbayan, merely stated that all persons facing criminal charges in court, with no exception,
have to secure permission to leave the country. Nowhere in the letter is the merit of the charge
against petitioner ever touched. Certainly, there would have been no occasion for the letter had
Benigno not written his diatribe, unfair at that, against the Sandiganbayan.

Notwithstanding petitioner's misgiving, it should be taken into consideration that the Sandiganbayan
sits in three divisions with three justices in each division. Unanimity among the three members is
mandatory for arriving at any decision of a division (P.D. No. 1606, Sec. 5). The collegiate character
of the Sandiganbayan thus renders baseless petitioner's fear of prejudice and bias on the part of
Presiding Justice Garchitorena (Paredes v. Gopengco, 29 SCRA 688 [1969] ).

Re: Claim of denial of due process

Petitioner cannot complain that her constitutional rights to due process were violated by reason of
the delay in the termination of the preliminary investigation. According to her, while the offense was
allegedly committed "on or before October 17, 1988", the information was filed only on May 9, 1991
and the amended informations on December 8, 1992 (Rollo, p. 14).

Tatad v. Sandiganbayan, 159 SCRA 70 [1988] is inapplicable to petitioner's case. In Tatad, there
indeed was an unexplained inaction on the part of the public prosecutors inspite of the simplicity of
the legal and factual issues involved therein.

In the case at bench, there was a continuum of the investigatory process but it got snarled because
of the complexity of the issues involved. The act complained of in the original information came to
the attention of the Ombudsman only when it was first reported in the January 10, 1989 issue of
the Manila Standard. Immediately thereafter, the investigatory process was set in motion. The
investigation was first assigned to Special Prosecutor Gualberto dela Llana but on request of
petitioner herself the investigation was first assigned to Special Prosecutor Gualberto dela Llana but
on request of petitioner herself the investigation was re-assigned to the Office of the Deputy
Ombudsman for Luzon. The case was handled by a panel of four prosecutors, who submitted a draft
resolution for the filing of the charges on March 29, 1990. The draft resolution had to undergo the
hierarchy of review, normal for a draft resolution with a dissenting vote, until it reached the
Ombudsman in March 1991.

We note that petitioner had previously filed two petitions before us involving Criminal Case No.
16698 (G.R. Nos. 99289-99290; G.R.
No. 107598). Petitioner has not explained why she failed to raise the issue of delay in the preliminary
investigation and the filing of the information against her in those petitions. a piece-meal
presentation of issues, like the splitting of causes of action, is self-defeating.

Petitioner next claims that the Amended Informations did not charge any offense punishable under
Section 3 (e) of R.A. No. 3019 because the official acts complained of therein were authorized under
Executive Order No. 324 and that the Board of Commissioners of the Bureau of Investigation
adopted the policy of approving applications for legalization of spouses and unmarried, minor
children of "qualified aliens" even though they had arrived in the Philippines after December 31,
1983. she concludes that the Sandiganbayan erred in not granting her motion to quash the
informations (Rollo, pp. 25-31).

In a motion to quash, the accused admits hypothetically the allegations of fact in the information
(People v. Supnad, 7 SCRA 603 [1963] ). Therefore, petitioner admitted hypothetically in her motion
that:

(1) She was a public officer;

(2) She approved the application for legalization of the stay of aliens, who arrived in
the Philippines after January 1, 1984;

(3) Those aliens were disqualified;

(4) She was cognizant of such fact; and

(5) She acted in "evident bad faith and manifest partiality in the execution of her
official functions."
The foregoing allegations of fact constitute the elements of the offense defined in Section 3 (e) of
R.A. No. 3019.

The claims that the acts complained of were indeed authorized under Executive Order No. 324, that
petitioner merely followed in good faith the policy adopted by the Board of Commissioners and that
the aliens were spouses or unmarried minor children of persons qualified for legalization of stay, are
matters of defense which she can establish at the trial.

Anent petitioner's claim that the Amended Informations did not allege that she had caused "undue
injury to any party, including the Government," there are two ways of violating Section 3 (e) of R.A.
No. 3019. These are: (a) by causing undue injury to any party, including the Government; and (b) by
giving any private party any unwarranted benefit, advantage or preference.

In Uy v. Sandiganbayan, G.R. No. 100334, December 5, 1991, we held:

The use of the distinctive term "or" connotes that either act qualifies as a violation of
Section 3 (a). In other words the act of giving any private party any unwarranted
benefit, advantage or preference is not an indispensable element of the offense of
"causing any undue injury to any party" as claimed by petitioners although there may
be instances where both elements concur.

Re: Delito continuado

Be that as it may, our attention was attracted by the allegation in the petition that the public
prosecutors filed 32 Amended Informations against petitioner, after manifesting to the
Sandiganbayan that they would only file one amended information (Rollo, pp. 6-61). We also noted
that petitioner questioned in her opposition to the motion to admit the 32 Amended Informations, the
splitting of the original information (Rollo, pp. 127-129). In the furtherance of justice, we therefore
proceed to inquire deeper into the validity of said plant, which petitioner failed to pursue with vigor in
her petition.

We find that, technically, there was only one crime that was committed in petitioner's case, and
hence, there should only be one information to be file against her.

The 32 Amended Informations charge what is known as delito continuado or "continued crime" and
sometimes referred to as "continuous crime."

In fairness to the Ombudsman's Office of the Special Prosecutor, it should be borne in mind that the
concept of delito continuado has been a vexing problem in Criminal Law — difficult as it is to define
and more difficult to apply.

According to Cuello Calon, for delito continuado to exist there should be a plurality of acts performed
during a period of time; unity of penal provision violated; and unity of criminal intent or purpose,
which means that two or more violations of the same penal provisions are united in one and same
instant or resolution leading to the perpetration of the same criminal purpose or aim
(II Derecho Penal, p. 520; I Aquino, Revised Penal Code, 630, 1987 ed.).

According to Guevarra, in appearance, a delito continuado consists of several crimes but in reality
there is only one crime in the mind of the perpetrator (Commentaries on the Revised Penal Code,
1957 ed., p. 102; Penal Science and Philippine Criminal Law, p. 152).
Padilla views such offense as consisting of a series of acts arising from one criminal intent or
resolution (Criminal Law, 1988 ed. pp. 53-54).

Applying the concept of delito continuado, we treated as constituting only one offense the following
cases:

(1) The theft of 13 cows belonging to two different owners committed by the accused
at the same time and at the same period of time (People v. Tumlos, 67 Phil. 320
[1939] ).

(2) The theft of six roosters belonging to two different owners from the same coop
and at the same period of time (People v. Jaranillo, 55 SCRA 563 [1974] ).

(3) The theft of two roosters in the same place and on the same occasion (People v.
De Leon, 49 Phil. 437 [1926] ).

(4) The illegal charging of fees for services rendered by a lawyer every time he
collects veteran's benefits on behalf of a client, who agreed that the attorney's fees
shall be paid out of said benefits (People v. Sabbun, 10 SCRA 156 [1964] ). The
collection of the legal fees were impelled by the same motive, that of collecting fees
for services rendered, and all acts of collection were made under the same criminal
impulse (People v. Lawas, 97 Phil. 975 [1955] ).

On the other hand, we declined to apply the concept to the following cases:

(1) Two estafa cases, one of which was committed during the period from January 19
to December 1955 and the other from January 1956 to July 1956 (People v. Dichupa,
113 Phil. 306 [1961] ). The said acts were committed on two different occasions.

(2) Several malversations committed in May, June and July, 1936, and falsifications
to conceal said offenses committed in August and October 1936. The malversations
and falsifications "were not the result of only one purpose or of only one resolution to
embezzle and falsify . . ." (People v. Cid, 66 Phil. 354 [1938] ).

(3) Two estafa cases, one committed in December 1963 involving the failure of the
collector to turn over the installments for a radio and the other in June 1964 involving
the pocketing of the installments for a sewing machine (People v. Ledesma, 73
SCRA 77 [1976] ).

(4) 75 estafa cases committed by the conversion by the agent of collections from
customers of the employer made on different dates (Gamboa v. Court of Appeals, 68
SCRA 308 [1975]).

The concept of delito continuado, although an outcry of the Spanish Penal Code, has been applied
to crimes penalized under special laws,
e.g. violation of R.A. No. 145 penalizing the charging of fees for services rendered following up
claims for war veteran's benefits (People v. Sabbun, 10 SCRA 156 [1964] ).

Under Article 10 of the Revised Penal Code, the Code shall be supplementary to special laws,
unless the latter provide the contrary. Hence, legal principles developed from the Penal Code may
be applied in a supplementary capacity to crimes punished under special laws.
The question of whether a series of criminal acts over a period of time creates a single offense or
separate offenses has troubled also American Criminal Law and perplexed American courts as
shown by the several theories that have evolved in theft cases.

The trend in theft cases is to follow the so-called "single larceny" doctrine, that is, the taking of
several things, whether belonging to the same or different owners, at the same time and place
constitutes but one larceny. Many courts have abandoned the "separate larceny doctrine," under
which there is a distinct larceny as to the property of each victim. Also abandoned was the doctrine
that the government has the discretion to prosecute the accused or one offense or for as many
distinct offenses as there are victims (annotation, 37 ALR 3rd 1407, 1410-1414).

The American courts following the "single larceny" rule, look at the commission of the different
criminal acts as but one continuous act involving the same "transaction" or as done on the same
"occasion" (State v. Sampson, 157 Iowa 257, 138 NW 473; People v. Johnson, 81 Mich. 573, 45 NW
1119; State v. Larson, 85 Iowa 659, 52 NW 539).

An American court held that a contrary rule would violate the constitutional guarantee against putting
a man in jeopardy twice for the same offense (Annotation, 28 ALR 2d 1179). Another court observed
that the doctrine is a humane rule, since if a separate charge could be filed for each act, the accused
may be sentenced to the penitentiary for the rest of his life (Annotation, 28 ALR 2d 1179).

In the case at bench, the original information charged petitioner with performing a single criminal act
— that of her approving the application for legalization of aliens not qualified under the law to enjoy
such privilege.

The original information also averred that the criminal act : (i) committed by petitioner was in
violation of a law — Executive Order No. 324 dated
April 13, 1988, (ii) caused an undue injury to one offended party, the Government, and (iii) was done
on a single day, i.e., on or about October 17, 1988.

The 32 Amended Informations reproduced verbatim the allegation of the original information, except
that instead of the word "aliens" in the original information each amended information states the
name of the individual whose stay was legalized.

At the hearing of the motion for a bill of particulars, the public prosecutors manifested that they
would file only one amended information embodying the legalization of stay of the 32 aliens. As
stated in the Order dated November 12, 1992 of the Sandiganbayan (First Division):

On the matter of the Bill of Particulars, the prosecution has conceded categorically
that the accusation against Miriam Defensor Santiago consists of one violation of the
law represented by the approval of the applications of 32 foreign nationals for
availment (sic) of the Alien Legalization Program. In this respect, and responding
directly to the concerns of the accused through counsel, the prosecution is
categorical that there will not be 32 accusations but only one . . . (Rollo, p. 59).

The 32 Amended Informations aver that the offenses were committed on the same period of
time, i.e., on or about October 17, 1988. The strong probability even exists that the approval of the
application or the legalization of the stay of the 32 aliens was done by a single stroke of the pen, as
when the approval was embodied in the same document.
Likewise, the public prosecutors manifested at the hearing the motion for a bill of particulars that the
Government suffered a single harm or injury. The Sandiganbayan in its Order dated November 13,
1992 stated as follows:

. . . Equally, the prosecution has stated that insofar as the damage and prejudice to
the government is concerned, the same is represented not only by the very fact of
the violation of the law itself but because of the adverse effect on the stability and
security of the country in granting citizenship to those not qualified (Rollo, p. 59).

WHEREFORE, the Resolution dated March 3, 1993 in Criminal Case No. 16698 of the
Sandiganbayan (First Division) is AFFIRMED and its Resolution dated March 11, 1993 in Criminal
Case No. 16698 is MODIFIED in the sense that the Office of the Special Prosecutor of the Office of
the Ombudsman is directed to consolidate the 32 Amended Informations (Criminal Cases Nos.
18371 to 18402) into one information charging only one offense under the original case number, i.e.,
No. 16698. The temporary restraining order issued by this Court on March 25, 1993 is LIFTED
insofar as to the disqualification of Presiding Justice Francis Garchitorena is concerned.

SO ORDERED.

Narvasa, C.J., Cruz, Padilla, Bidin, Regalado, Davide, Jr., Nocon, Bellosillo, Melo and Puno, JJ.,
concur.

Separate Opinions

VITUG, J., concurring and dissenting:

While I share the view expressed by Mr. Justice Florentino P. Feliciano in his dissent from the
majority opinion in Miriam Defensor-Santiago vs. Conrado Vasquez, et al. (205 SCRA 162), the
decision in said case, however, having become final, has, in my view, the effect of foreclosing the
issues there involved.

Accordingly, in this petition now at bench (G.R. No. 109266, I vote with the majority in simply
directing, for the reasons expressed for the Court by
Mr. Justice Camilo D. Quiason, the consolidation of the thirty-two Amended Informations into a
single Information.

FELICIANO, J., dissenting:

I dissent from the opinion written for the majority by Mr. Justice Quiason, to the extent that that
opinion directed the Office of the Special Prosecutor of the Office of the Ombudsman to consolidate
the thirty-two (32) Amended Informations (Criminal Cases Nos. 18371 and 18402) into one
Information under the original case number, i.e., No. 16698.
I believe that the Court should order the Sandiganbayan to dismiss the thirty-two (32) Amended
Informations, for that court seriously erred in not granting petitioner's Motion to Quash those
Informations. The grounds for my submission in this respect were spelled out in detail in my
dissenting opinion 1 in Miriam Defensor-Santiago v. Conrado M. Vasquez, Ombudsman, et al. (205
SCRA 162 at 174-180 [1992] ), which I beg leave to reproduce here:

The information filed before the Sandiganbayan in Criminal Case No. 16698 charges
the petitioner as follows:

That on or about October 17, 1988, or for sometime prior or

subsequent thereto, in Manila, Philippines, and within the jurisdiction
of this Honorable Court, accused Miriam Defensor-Santiago, being
the Commissioner of the Commission on Immigration and
Deportation, with evident bad faith and manifest partiality, did then
and there, willfully, unlawfully and criminally approve the application
for legalization of aliens who arrived in the Philippines after January
1, 1984 in violation of Executive Order No. 324 dated April 13, 1988
which does not allow the legalization of the same, thereby causing
undue injury to the government and giving unwarranted benefits and
advantage to the said aliens in the discharge of the official and
administrative functions of said accused.

Contrary to law.

Essentially, the above information charges that petitioner had, in violation of the
provisions of Executive Order No. 324 approved applications for legalization of the
stay of aliens who had arrived in the Philippines after January 1, 1984. The
information takes the position that the Executive Order "does not allow the
legalization of the same."

Executive Order No. 324 entitled "Waiving Passport Requirements for Immigrants
under Certain Conditions," dated April 13, 1988, was promulgated pursuant to
section 47 (A)(3) of C.A. No. 613, as amended, the Philippine Immigration Act of
1940, which provides that

Notwithstanding the provisions of this Act, the President is

authorized:

(a) when the public interest to warrants:

xxx xxx xxx

(3) to waive the passport requirements for immigrants, under such

conditions as he may prescribe.

Executive Order No. 324 provides that an alien may apply with the Commissioner of
Immigration and Deportation for waiver of passport beginning on a date to be
designated by the Commissioner. The Order provides, among other things, that the
alien "must establish that he entered the Philippines before January 1, 1984 and that
he has resided continuously in the Philippines in an unlawful status from such date to
the filing of his application."
Petitioner is charged with having unlawfully waived the passport requirements of
certain aliens who arrived after January 1, 1984. It is clear from the record of this
case, especially of the preliminary investigation conducted by the Office of the
Special Prosecutor, that petitioner herself stated that she had allowed aliens who had
arrived in the Philippines after January 1, 1984, but who were the spouses or minor
children of qualified aliens — the latter being alien spouses or parents who had
entered the Philippines before January 1, 1984 and who were themselves qualified
for waiver of passport requirements under Executive Order No. 324 — to apply for
waiver of passport requirements and, after compliance with requirements of
Executive Order No. 324, approved such "legalization."

Executive Order No. 324 is not itself a statute prescribing penal sanctions for certain
acts. Thus, disregard of Executive Order No. 324 would not, by itself, give rise to
criminal liability. The criminal information in this case in effect links up Executive
Order No. 324 with Section 3(e) of Republic Act No. 3019, known as the Anti-Graft
and Corrupt Practices Act. Section 3(e) of the Anti-Graft Act reads as follows:

xxx xxx xxx

It must be noted, firstly, that petitioner, as the then Commissioner of Immigration and
Deportation, was expressly authorized and obliged by Executive Order No. 324 to
apply and administer and enforce its provisions. Indeed, petitioner was authorized to
issue rules and regulations to implement that Executive Order (paragraph 16).
Secondly, the application and administration of Executive Order No. 324 involve, not
ministerial or mechanical acts, but rather the exercise of judgment and discretion,
adjudicatory and hence quasi-judicial in nature. Thirdly, and perhaps most notably,
paragraphs 11 and 12 of the Executive Order provide as follows:

11. Except as provided in Paragraph 12, herein, the Commissioner of

Immigration and Deportation may waive exclusion grounds under the
Immigration Act in the cases of individual aliens for humanitarian
purposes to assure family unity or for the public interest.

12. The following grounds for exclusion may not be waived by the
Commissioner of Immigration and Deportation, namely, (a) those
relating to criminals; (b) those relating to aliens likely to become
public charges; (c) those relating to drug offenses, except for so
much of those provisions as relates to a single offense of simple
possession of marijuana; and (d) those relating to national security
and members of subversive organization.

xxx xxx xxx

(Emphasis supplied)

Paragraph 11, it will be seen, expressly authorizes petitioner to waive grounds for
exclusion of aliens under the Immigration Act in two (2) cases: (a) "for humanitarian
purposes to assure family unity;" and (b) "for the public interest." Under Section 29
(a) of the Philippine Immigration Act of 1940, as amended, the classes of aliens
excluded from entry into the Philippines include:
 (17) Persons not properly documented for admission as may be
required under the provisions of this Act.2

Upon the other hand, paragraph 12 specifies the categories of persons in whose
cases no waiver of grounds of exclusion may be granted.

It will be seen that the acts of petitioner, which the information assumes to be
criminal in nature, constituted official acts of petitioner done in the course of applying,
interpreting and construing Executive Order No. 324. There is no question that the
applications for waiver of passport requirements by the spouses and minor children
of qualified aliens were admitted and approved by petitioner "for humanitarian
purposes to assure family unity." It is also not disputed that the said alien spouses
and minor children did not fall under any of the (non-waivable) excluded classes
listed in paragraph 12 of Executive Order No. 324. It is similarly undisputed that no
one has pretended that petitioner had any personal or corrupt interest in any of the
cases of alien spouses and minor children of qualified aliens she had acted upon. No
one has suggested, for instance that the fees specified in paragraph 9 of Executive
Order No. 324 either were not collected by petitioner and converted to her own use.
It may be noted, incidentally, that paragraph 9 expressly authorizes the
Commissioner "in her discretion, [to] charge a lower fee for the spouse and minor
children below 21 years old of the applicant." The criminal information, as noted
above, included an allegation of "evident bad faith and manifest partiality." It is clear,
however, that the facts brought out in the preliminary investigation offered absolutely
no basis for such an allegation which actually a conclusion offered by the Special
Prosecutor, much like the words "wilfully, unlawfully and criminally" which are recited
redundantly in the criminal information here. Again, the facts disclosed in the
preliminary investigation showed no undue injury, "to the Government and no
unwarranted benefit or advantage" to the aliens outside of the simple acceptance
and approval of the applications for waiver of passport requirements (so called
"legalization") by petitioner. In other words, if the interpretation or construction given
by petitioner to Executive Order
No. 324 is correct — i.e., that applications for waiver of passport requirements by
alien wives and minor children, arriving after January 1, 1984, of qualified aliens who
had themselves arrived in the Philippines before January 1, 1984 and who were
otherwise eligible under the terms and conditions of Executive Order No. 324 may be
granted for humanitarian purposes in the interest of allowing or restoring family unity
— there would be no "injury," let alone an "undue injury," to the Government. Neither
can the benefit of waiver of passport requirements in the cases of such spouses and
minor children of qualified aliens be deemed to be an "unwarranted" benefit to such
aliens if petitioner's interpretation of Executive Order
No. 324 be held to be correct.

It is a rule too firmly established to require documentation that contemporaneous

interpretations of a statute or implementing regulation by the executive or
administrative officials precisely charged with the implementation of such a stature or
regulation, are entitled to great weight and respect from the courts. This Court itself
has in many instances deferred to such interpretations rendered by such
administrative officers. (See, e.g., Ramos v. Court of Industrial Relations, 21 SCRA
1282 [1967]; Salavaria v. Buenviaje, 81 SCRA 722 [1978]; Asturias Sugar Central,
Inc. v. Commissioner of Customs, 29 SCRA 617 [1969]; University of the Philippines
v. Court of Appeals, 37 SCRA 54 [1971]; Lim Hao Ting v. Central Bank, 104 Phil. 573
[1958] ). But even if an administrative interpretation be ultimately found to be
incorrect as a matter of law by this Court, the official responsible for such
 interpretation is not, for that reason alone, to be held liable personally, whether civilly
or criminally or administratively. It is just as firmly settled that to impose liability upon
the public officer who has so acted, something far graver that error of law or error of
judgment must be clearly shown and that is corrupt personal intentions, personal
malice or bad faith. (See generally Marcelo v. Sandiganbayan, 185 SCRA 346
[1990]). As noted above, no such allegations were made during the preliminary
investigation in Criminal Case No. 16698.

My submission, with respect, is that whether the acts admittedly done by petitioner
were criminal in nature, is a legal question, on which petitioner in effect asks us to
rule in this Petition. I believe, further, that there is nothing to prevent this Court from
addressing and ruling on this legal issue. There is no real need for proof of any
additional essential facts apart from those already admitted by petitioner. It seems to
me that a public officer is entitled to have legal questions like that before this Court
resolved at the earliest possible opportunity, that a public officer should not be
compelled to go through the aggravation, humiliation and expense of the whole
process of criminal trial, if the legal characterization of the acts charged as criminal is
the very issue at stake.

I respectfully submit, still further, that the acts charged do not, as a matter of law,
constitute a crime. Indeed, if the acts which petitioner admits having done constitute
a criminal offense, very serious consequences would follow for the administration of
law and government rules and regulations in general. For the thrust of the criminal
information here would appear to be that public officers interpret and apply statutory
and regulatory provisions at their own peril and at the risk of criminal liability,
notwithstanding the absence of any corrupt intent to profit personally by any such
interpretation and application. (Emphasis in the penultimate and ultimate paragraphs
supplied)

The Information, quoted internally above, was filed in Criminal Case

No. 16698 back in 1 May 1991. approximately two-and-a-half (2-1/2) years later, the proceedings
before the Sandiganbayan are still going on, and indeed appear to me to be back where the case
was at the time the original Information was filed. Had this Court ruled on the legal question which
petitioner in effect had asked us to rule in Santiago v. Vasquez (supra), the case should be
terminated by now, one way or the other. Once more, I respectfully submit that a public officer
should not be compelled to go through the aggravation, humiliation and expense of the whole
process of criminal trial, if the legal nature of the acts charged as criminal is the very issue at stake.

I vote to grant the Petition for Certiorari and to require the Sandiganbayan to dismiss the thirty-two
(32) Amended Informations.

Romero, J., concurs.

# Separate Opinions

VITUG, J., concurring and dissenting:

While I share the view expressed by Mr. Justice Florentino P. Feliciano in his dissent from the
majority opinion in Miriam Defensor-Santiago vs. Conrado Vasquez, et al. (205 SCRA 162), the
decision in said case, however, having become final, has, in my view, the effect of foreclosing the
issues there involved.

Accordingly, in this petition now at bench (G.R. No. 109266, I vote with the majority in simply
directing, for the reasons expressed for the Court by Mr. Justice Camilo D. Quiason, the
consolidation of the thirty-two Amended Informations into a single Information.

FELICIANO, J., dissenting:

I dissent from the opinion written for the majority by Mr. Justice Quiason, to the extent that that
opinion directed the Office of the Special Prosecutor of the Office of the Ombudsman to consolidate
the thirty-two (32) Amended Informations (Criminal Cases Nos. 18371 and 18402) into one
Information under the original case number, i.e., No. 16698.

I believe that the Court should order the Sandiganbayan to dismiss the thirty-two (32) Amended
Informations, for that court seriously erred in not granting petitioner's Motion to Quash those
Informations. The grounds for my submission in this respect were spelled out in detail in my
dissenting opinion 1 in Miriam Defensor-Santiago v. Conrado M. Vasquez, Ombudsman, et al. (205
SCRA 162 at 174-180 [1992] ), which I beg leave to reproduce here:

The information filed before the Sandiganbayan in Criminal Case No. 16698 charges
the petitioner as follows:

That on or about October 17, 1988, or for sometime prior or

subsequent thereto, in Manila, Philippines, and within the jurisdiction
of this Honorable Court, accused Miriam Defensor-Santiago, being
the Commissioner of the Commission on Immigration and
Deportation, with evident bad faith and manifest partiality, did then
and there, willfully, unlawfully and criminally approve the application
for legalization of aliens who arrived in the Philippines after January
1, 1984 in violation of Executive Order No. 324 dated April 13, 1988
which does not allow the legalization of the same, thereby causing
undue injury to the government and giving unwarranted benefits and
advantage to the said aliens in the discharge of the official and
administrative functions of said accused.

Contrary to law.

Essentially, the above information charges that petitioner had, in violation of the
provisions of Executive Order No. 324 approved applications for legalization of the
stay of aliens who had arrived in the Philippines after January 1, 1984. The
information takes the position that the Executive Order "does not allow the
legalization of the same."

Executive Order No. 324 entitled "Waiving Passport Requirements for Immigrants
under Certain Conditions," dated April 13, 1988, was promulgated pursuant to
section 47 (A)(3) of C.A. No. 613, as amended, the Philippine Immigration Act of
1940, which provides that
 Notwithstanding the provisions of this Act, the President is
authorized:

(a) when the public interest to warrants:

xxx xxx xxx

(3) to waive the passport requirements for immigrants, under such

conditions as he may prescribe.

Executive Order No. 324 provides that an alien may apply with the Commissioner of
Immigration and Deportation for waiver of passport beginning on a date to be
designated by the Commissioner. The Order provides, among other things, that the
alien "must establish that he entered the Philippines before January 1, 1984 and that
he has resided continuously in the Philippines in an unlawful status from such date to
the filing of his application."

Petitioner is charged with having unlawfully waived the passport requirements of

certain aliens who arrived after January 1, 1984. It is clear from the record of this
case, especially of the preliminary investigation conducted by the Office of the
Special Prosecutor, that petitioner herself stated that she had allowed aliens who had
arrived in the Philippines after January 1, 1984, but who were the spouses or minor
children of qualified aliens — the latter being alien spouses or parents who had
entered the Philippines before January 1, 1984 and who were themselves qualified
for waiver of passport requirements under Executive Order No. 324 — to apply for
waiver of passport requirements and, after compliance with requirements of
Executive Order No. 324, approved such "legalization."

Executive Order No. 324 is not itself a statute prescribing penal sanctions for certain
acts. Thus, disregard of Executive Order No. 324 would not, by itself, give rise to
criminal liability. The criminal information in this case in effect links up Executive
Order No. 324 with Section 3(e) of Republic Act No. 3019, known as the Anti-Graft
and Corrupt Practices Act. Section 3(e) of the Anti-Graft Act reads as follows:

xxx xxx xxx

It must be noted, firstly, that petitioner, as the then Commissioner of Immigration and
Deportation, was expressly authorized and obliged by Executive Order No. 324 to
apply and administer and enforce its provisions. Indeed, petitioner was authorized to
issue rules and regulations to implement that Executive Order (paragraph 16).
Secondly, the application and administration of Executive Order No. 324 involve, not
ministerial or mechanical acts, but rather the exercise of judgment and discretion,
adjudicatory and hence quasi-judicial in nature. Thirdly, and perhaps most notably,
paragraphs 11 and 12 of the Executive Order provide as follows:

11. Except as provided in Paragraph 12, herein, the Commissioner of

Immigration and Deportation may waive exclusion grounds under the
Immigration Act in the cases of individual aliens for humanitarian
purposes to assure family unity or for the public interest.

12. The following grounds for exclusion may not be waived by the
Commissioner of Immigration and Deportation, namely, (a) those
 relating to criminals; (b) those relating to aliens likely to become
public charges; (c) those relating to drug offenses, except for so
much of those provisions as relates to a single offense of simple
possession of marijuana; and (d) those relating to national security
and members of subversive organization.

xxx xxx xxx

(Emphasis supplied)

Paragraph 11, it will be seen, expressly authorizes petitioner to waive grounds for
exclusion of aliens under the Immigration Act in two (2) cases: (a) "for humanitarian
purposes to assure family unity;" and (b) "for the public interest." Under Section 29
(a) of the Philippine Immigration Act of 1940, as amended, the classes of aliens
excluded from entry into the Philippines include:

(17) Persons not properly documented for admission as may be

required under the provisions of this Act.2

Upon the other hand, paragraph 12 specifies the categories of persons in whose
cases no waiver of grounds of exclusion may be granted.

It will be seen that the acts of petitioner, which the information assumes to be
criminal in nature, constituted official acts of petitioner done in the course of applying,
interpreting and construing Executive Order No. 324. There is no question that the
applications for waiver of passport requirements by the spouses and minor children
of qualified aliens were admitted and approved by petitioner "for humanitarian
purposes to assure family unity." It is also not disputed that the said alien spouses
and minor children did not fall under any of the (non-waivable) excluded classes
listed in paragraph 12 of Executive Order No. 324. It is similarly undisputed that no
one has pretended that petitioner had any personal or corrupt interest in any of the
cases of alien spouses and minor children of qualified aliens she had acted upon. No
one has suggested, for instance that the fees specified in paragraph 9 of Executive
Order No. 324 either were not collected by petitioner and converted to her own use.
It may be noted, incidentally, that paragraph 9 expressly authorizes the
Commissioner "in her discretion, [to] charge a lower fee for the spouse and minor
children below 21 years old of the applicant." The criminal information, as noted
above, included an allegation of "evident bad faith and manifest partiality." It is clear,
however, that the facts brought out in the preliminary investigation offered absolutely
no basis for such an allegation which actually a conclusion offered by the Special
Prosecutor, much like the words "wilfully, unlawfully and criminally" which are recited
redundantly in the criminal information here. Again, the facts disclosed in the
preliminary investigation showed no undue injury, "to the Government and no
unwarranted benefit or advantage" to the aliens outside of the simple acceptance
and approval of the applications for waiver of passport requirements (so called
"legalization") by petitioner. In other words, if the interpretation or construction given
by petitioner to Executive Order
No. 324 is correct — i.e., that applications for waiver of passport requirements by
alien wives and minor children, arriving after January 1, 1984, of qualified aliens who
had themselves arrived in the Philippines before January 1, 1984 and who were
otherwise eligible under the terms and conditions of Executive Order No. 324 may be
granted for humanitarian purposes in the interest of allowing or restoring family unity
 — there would be no "injury," let alone an "undue injury," to the Government. Neither
can the benefit of waiver of passport requirements in the cases of such spouses and
minor children of qualified aliens be deemed to be an "unwarranted" benefit to such
aliens if petitioner's interpretation of Executive Order
No. 324 be held to be correct.

It is a rule too firmly established to require documentation that contemporaneous

interpretations of a statute or implementing regulation by the executive or
administrative officials precisely charged with the implementation of such a stature or
regulation, are entitled to great weight and respect from the courts. This Court itself
has in many instances deferred to such interpretations rendered by such
administrative officers. (See, e.g., Ramos v. Court of Industrial Relations, 21 SCRA
1282 [1967]; Salavaria v. Buenviaje, 81 SCRA 722 [1978]; Asturias Sugar Central,
Inc. v. Commissioner of Customs, 29 SCRA 617 [1969]; University of the Philippines
v. Court of Appeals, 37 SCRA 54 [1971]; Lim Hao Ting v. Central Bank, 104 Phil. 573
[1958] ). But even if an administrative interpretation be ultimately found to be
incorrect as a matter of law by this Court, the official responsible for such
interpretation is not, for that reason alone, to be held liable personally, whether civilly
or criminally or administratively. It is just as firmly settled that to impose liability upon
the public officer who has so acted, something far graver that error of law or error of
judgment must be clearly shown and that is corrupt personal intentions, personal
malice or bad faith. (See generally Marcelo v. Sandiganbayan, 185 SCRA 346
[1990]). As noted above, no such allegations were made during the preliminary
investigation in Criminal Case No. 16698.

My submission, with respect, is that whether the acts admittedly done by petitioner
were criminal in nature, is a legal question, on which petitioner in effect asks us to
rule in this Petition. I believe, further, that there is nothing to prevent this Court from
addressing and ruling on this legal issue. There is no real need for proof of any
additional essential facts apart from those already admitted by petitioner. It seems to
me that a public officer is entitled to have legal questions like that before this Court
resolved at the earliest possible opportunity, that a public officer should not be
compelled to go through the aggravation, humiliation and expense of the whole
process of criminal trial, if the legal characterization of the acts charged as criminal is
the very issue at stake.

I respectfully submit, still further, that the acts charged do not, as a matter of law,
constitute a crime. Indeed, if the acts which petitioner admits having done constitute
a criminal offense, very serious consequences would follow for the administration of
law and government rules and regulations in general. For the thrust of the criminal
information here would appear to be that public officers interpret and apply statutory
and regulatory provisions at their own peril and at the risk of criminal liability,
notwithstanding the absence of any corrupt intent to profit personally by any such
interpretation and application. (Emphasis in the penultimate and ultimate paragraphs
supplied)

The Information, quoted internally above, was filed in Criminal Case

No. 16698 back in 1 May 1991. approximately two-and-a-half (2-1/2) years later, the proceedings
before the Sandiganbayan are still going on, and indeed appear to me to be back where the case
was at the time the original Information was filed. Had this Court ruled on the legal question which
petitioner in effect had asked us to rule in Santiago v. Vasquez (supra), the case should be
terminated by now, one way or the other. Once more, I respectfully submit that a public officer
should not be compelled to go through the aggravation, humiliation and expense of the whole
process of criminal trial, if the legal nature of the acts charged as criminal is the very issue at stake.

I vote to grant the Petition for Certiorari and to require the Sandiganbayan to dismiss the thirty-two
(32) Amended Informations.
G.R. No. 181861 October 17, 2011

RAUL DAVID, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

PERALTA, J.:

For this Court's consideration is the Petition for Review on Certiorari1 under Rule 45 of the 1997
Rules of Civil Procedure dated April 11, 2008 of petitioner Raul David, assailing the Decision2 dated
August 31, 2007 and Resolution3 dated February 20, 2008 of the Court of Appeals (CA) in CA-G.R.
CR No. 29746, affirming the Decision4 dated April 27, 2005 of the Regional Trial Court, Branch 66,
Capas, Tarlac in Criminal Cases No. 1811-1812, finding petitioner Raul David, guilty beyond
reasonable doubt of violation of Section 11, Article II of Republic Act (R.A.) 9165.

As shown in the records, the following are the antecedent facts:

After receiving an information from a certain Victor Garcia that a person was selling illegal drugs at
L. Cortez St., Brgy. San Jose, Concepcion, Tarlac, the Intelligence Operatives of the Concepcion
Police Station, Concepcion, Tarlac, conducted a surveillance on the place from May 25, 2003 until
June 23, 2003 when they applied for a search warrant which was granted on the same day. Before
implementing the search warrant, the police officers conducted another surveillance from June 23 to
June 24, 2003 during which, it was observed that several students were going inside the petitioner’s
house. It was also during that time that the poseur-buyer was able to buy shabu (methamphetamine
hydrochloride) from the petitioner.

On June 29, 2003, around 1:00 p.m., the search team composed of PO3 Mario Flores, PO2 Henry
Balabat, SPO1 Rustico Basco and PO1 Roger Paras, implemented the search warrant with the
presence of Barangay Captain Antonio Canono. The search team, before conducting the search,
sought permission from the petitioner. The two-storey house had two rooms one downstairs and
the other one upstairs. According to petitioner, the room downstairs was occupied by his brother,
Rael David, who was not present during the search, and the room upstairs was occupied by the
former.

PO3 Flores found six (6) sachets of marijuana and three (3) plastic sachets of substance suspected
to be shabu on top of a padlocked cabinet underneath the stairs. During that time, appellant was
around two (2) meters away in the sala.

Thereafter, the police operatives took pictures of the items searched and the barangay captain
signed a certificate of good search. The confiscated items were then turned over to Investigator
Simplicio Cunanan of the Concepcion Police Station for investigation.

It was revealed in Chemistry Report No. D-143-20035 of Police Inspector Jessica R. Quilang that the
specimens in the three (3) heat-sealed transparent plastic sachets with "RB-A," "RB-B," and "RB-C"
markings were positive for 0.327 gram of shabu, a dangerous drug, while the specimen in the six (6)
heat-sealed plastic sachets with markings "RB-1" up to "RB-6" were positive for 3.865 grams of
marijuana.

Thus, appellant was charged in the following Informations:

 Criminal Case No. 1811

That on or about 1:00 o'clock in the afternoon of 29 June 2003, at Brgy. San Jose, [M]unicipality of
Concepcion, [P]rovince of Tarlac, and within the jurisdiction of this Honorable Court, the said
accused did then and there willfully, unlawfully and criminally possessed Six (6) plastic heat-sealed
sachets containing dried marijuana leaves weighing more or less 3.865 gram[s] without being
authorized by law.

CONTRARY TO LAW.6

Criminal Case No. 1812

That on or about 1:00 o'clock in the afternoon of 29 June 2003, at Brgy. San Jose, [M]unicipality of
Concepcion, [P]rovince of Tarlac, and within the jurisdiction of this Honorable Court, the said
accused did then and there willfully, unlawfully and criminally possessed three (3) plastic heat-
sealed sachets containing [METHAMPHETAMINE] HYDROCHLORIDE, better known as Shabu,
weighing more or less 0.327 gram without being authorized by law.

CONTRARY TO LAW.7

Upon arraignment on August 4, 2003, petitioner, assisted by his counsel, pleaded "not guilty" on
both charges.8 The trial on the merits ensued, where the facts earlier stated were testified to by the
witnesses for the prosecution, namely: PO3 Mario Flores, SPO1 Rustico Basco and Officer Jessica
Quilang. On the other hand, the defense presented the testimonies of the petitioner; his brother,
Rael David, and his sister-in-law, Lilibeth David, the summary of which follows:

Police operatives arrived at the house of the petitioner in the afternoon of June 29, 2003. PO3 Flores
grabbed the petitioner and pulled him through his clothes and announced their authority to search.
This prompted the petitioner's sister-in-law, Lilibeth David, to get out of the room in order to prevent
the said policeman from grabbing the petitioner. To avoid any implantation of evidence, petitioner
took off his shirt. Lilibeth David summoned the barangay captain, afterwhich, policemen Basco,
Flores and Paras conducted the search which lasted for about thirty (30) minutes, while the other
police officer stayed outside with the barangay captain.

Police officers Basco and Paras searched the ground floor first and found nothing. Thereafter, police
officer Flores allegedly saw marijuana on top of a cabinet inside the room downstairs. Upon the
discovery, the item was photographed. Afterwards, petitioner was asked about the whereabouts of
the shabu. At the time of the search, petitioner's brother, Rael David, was not present.
Consequently, petitioner was taken to the police station for custodial investigation and during the
interrogation, he was not informed of his right to counsel.

The trial court found the petitioner guilty in its Decision dated April 27, 2005, the dispositive portion
of which follows:

WHEREFORE, finding the accused guilty beyond reasonable doubt of the crimes of Possession of
3.865 grams of Marijuana and 0.327 gram of [methamphetamine] hydrochloride (shabu), accused is
hereby sentenced to suffer the indeterminate penalties of Twelve (12) years & one day, as minimum,
to Fourteen years, as maximum, and to pay a fine of Three Hundred Thousand Pesos.

SO ORDERED.9
On appeal, the CA affirmed the conviction with modifications, the dispositive portion of its Decision
dated August 31, 2007 reads as follows:

WHEREFORE, the Decision of the Regional Trial Court of Capas, Tarlac, Branch 66 in Criminal
Cases No. 1811-1812, finding accused-appellant Raul David y Erese, GUILTY beyond reasonable
doubt of violation of Section 11, Article II of R.A. 9165 is hereby AFFIRMED with the following
MODIFICATIONS:

1) In Criminal Case No. 1811 for illegal possession of marijuana, he is sentenced to suffer
the penalty of Twelve (12) Years and One (1) day, as minimum, to Fourteen (14) Years, as
maximum, and to pay a fine of THREE HUNDRED THOUSAND PESOS (₱300,000.00);

2) In Criminal Case No. 1812 for illegal possession of shabu, he is sentenced to suffer the
penalty of Twelve (12) Years and One (1) day, as minimum, to Fourteen (14) Years, as
maximum, and to pay a fine of THREE HUNDRED THOUSAND PESOS (₱300,000.00).

Costs de oficio.

SO ORDERED.10

The CA, in its Resolution11 dated February 20, 2008, denied appellant's Motion for
Reconsideration,12 hence, the present petition where the appellant presented the following issues:

GROUND FOR THE ALLOWANCE OF THE PETITION

THE COURT OF APPEALS GRAVELY ERRED IN AFFIRMING WITH MODIFICATION THE

PETITIONER'S CONVICTION. THE ASSAILED DECISION IS NOT IN ACCORDANCE WITH LAW
AND APPLICABLE JURISPRUDENCE, AND IF NOT CORRECTED, IT WILL CAUSE GRAVE
INJUSTICE AND [IRREPARABLE] INJURY TO HEREIN PETITIONER.

ISSUES PRESENTED FOR RESOLUTION

WHETHER THE COURT OF APPEALS ERRED IN GIVING CREDENCE TO THE TESTIMONIES

OF THE PROSECUTION WITNESSES.

II

WHETHER THE COURT OF APPEALS ERRED IN CONVICTING THE PETITIONER DESPITE

THE FAILURE OF THE PROSECUTION TO PROVE THAT THE DANGEROUS DRUGS
SUBMITTED FOR LABORATORY EXAMINATION AND PRESENTED AS EVIDENCE BEFORE
THE TRIAL COURT WERE THE SAME ONES ALLEGEDLY SEIZED.

III

WHETHER THE COURT OF APPEALS ERRED IN MODIFYING THE DECISION OF THE TRIAL
COURT WHICH FOUND THE PETITIONER GUILTY OF A SINGLE CHARGE OF VIOLATION OF
SECTION 11, ARTICLE II OF REPUBLIC ACT NO. 9165.

The petition lacks merit.

The arguments presented in the petition are purely factual. This is contrary to what is allowed by law
when filing a petition under Rule 45 of the Rules of Court.13 Nevertheless, this Court, upon review of
the records of this case, finds that the trial court and the CA's findings of facts should be accorded
respect.

For a prosecution for illegal possession of a dangerous drug to prosper, it must be shown that (a) the
accused was in possession of an item or an object identified to be a prohibited or regulated drug; (b)
such possession is not authorized by law; and (c) the accused was freely and consciously aware of
being in possession of the drug.14

Based on the evidence presented by the prosecution, it was proven that all the elements for illegal
possession of dangerous drugs are present in this case. PO3 Mario Flores, during the search in the
house of petitioner, found six (6) sachets of marijuana and three (3) sachets of shabu, both classified
as dangerous drugs under the pertinent law, on top of a padlocked cabinet underneath the stairs.
Thus, PO3 Flores testified:

Q: According to you, you were able to discover or find six (6) teabags of marijuana, where did you
see these teabags?

A: On top of their aparador, sir.

Q: And where is that aparador situated?

A: Underneath the stairs, sir.

Q: And according to you also, you found three (3) plastic bags of shabu, where did you discover
these three (3) plastic sachets?

A: Also on top of the aparador, sir.

Q: The same aparador where you discovered the six (6) teabags of marijuana?

A: Yes, sir.15

The above testimony was corroborated by SPO1 Rustico Basco, who said:

Q: Upon entering the house, what did you do there?

A: Because we were already allowed by Lilibeth David to conduct the search, we started doing so,
sir.

Q: By the way, who among your companions, or who among you in the group, actually entered the
house?

A: Myself, PO3 Mario Flores and PO1 Roger Paras, sir.

COURT:

Q: At the time, where was the Barangay Captain?

A: He was then inside the house, you Honor, but he did not conduct the search.

Q: Who personally, what part of the house did he search?

A: I went upstairs, sir.

Q: How about your companions Flores and Paras?

A: PO3 Flores conducted the search downstairs, while PO1 Paras was with me, sir.

COURT:

Q: At the time when you were upstairs, where was Raul David?

WITNESS:

A: He was downstairs, your Honor, seated on the sofa beside Lilibeth.

Q: How about the wife of Raul David?

A: The wife was near the stairs, your Honor.

Q: When you entered the elevated room, who were your companions?

A: PO1 Roger Paras and Lilibeth David were the ones who went with me when I conducted the
search upstairs since the room is only small.

FISCAL Llobrera:

Q: What happened to your search?

A: PO3 Mario Flores was able to find six sachet(s) of marijuana, three sachet(s) of shabu.

Q: Items were discovered by whom?

A: By Officer Flores and PO1 Paras, sir.16

However, petitioner questions the credibility of the witnesses for the prosecution. He argues that the
testimony of PO3 Flores that he found six (6) teabags of marijuana and three (3) sachets
of shabu remains uncorroborated as SPO1 Basco testified that he did not see PO3 Flores when the
latter discovered the said dangerous drugs. Even so, this does not diminish the fact that dangerous
drugs were found during the search of the house. The Office of the Solicitor General (OSG), in its
Comment17 dated October 16, 2008, was correct in pointing out that during the operation, it is not
incredible that only one of the operatives found the dangerous drugs because they were scattered
throughout the house. The OSG stated:

x x x The fact that PO3 Flores was the only one who discovered the illegal substances is not
incredible. It must be considered that during the operation, the police operatives scattered
themselves throughout the house in order to conduct the search. SPO1 Basco searched the upper
room, while PO3 Flores searched the lower portion of the house. Noteworthy, the testimonies of
SPO1 Basco and PO3 Flores jibed on material points, particularly on the illegal objects seized.
SPO1 Basco corroborated PO3 Flores' testimony that he found six (6) sachets of marijuana and
three sachets of shabu during the search. x x x18

Petitioner also claims that the prior surveillance before the issuance of a search warrant was not
clearly established by the testimonies of the witnesses. He insists that SPO1 Basco testified that a
surveillance was conducted by PO3 Flores and PO1 Joel Canlas from May 25, 2003 to June 24,
2003, but PO3 Flores denied having participated in the surveillance and pointed to PO1 Canlas as
the one who conducted the surveillance. According to petitioner, such inconsistency in the testimony
is damaging. This Court finds no significance in the said inconsistency as it is merely minor. What is
important is that they were able to establish through their testimonies that a surveillance indeed took
place before and even after the issuance of the search warrant. PO3 Flores testified during
clarifications from the court that:

COURT:

Some questions from the court.

Q: Prior to the application of search warrant, was there any surveillance conducted by your office?

A: Yes, your Honor.

Q: Who conducted that surveillance?

A: PO1 Canlas, your Honor.

Q: Why did you still conduct surveillance after issuing the search warrant?

A: To collate concrete evidence against the suspects, sir.

COURT:

Q: Why? Are you not sure when you applied for search warrant that Raul and Rael were not in
possession of the dangerous drugs?

A: We were certain, your Honor; however, we were afraid that the shabu and the marijuana in their
possession had already been consumed that is why we waited for some more time, your Honor.19

Although the same witness above confirmed that he was not involved in the surveillance conducted
prior to the issuance of the search warrant, he testified that he was involved in the surveillance after
the issuance of the same search warrant, thus:

FISCAL LLOBRERA

Q: Officer, upon obtaining that search warrant, what did you do, if any?

A: We informed our Chief of Police that our application for the issuance of a search warrant was
already approved, sir.

Q: After making that report, what else happened?

A: We ordered that a surveillance be conducted, sir.

Q: Do you know if that surveillance [was] actually conducted?

A: Not yet, sir.

Q: What actually finally – was there any surveillance made?

A: Yes, sir, we were the ones who conducted the surveillance, sir.20

xxxx

ATTY. GARCIA

Q: How many times did you conduct surveillance?

A: Two (2) times, sir.

Q: Can you tell us the specific date?

A: June 23 and 24, sir.

Q: And in your surveillance on June 23 and 24, you were able to see young students going to the
house of the accused in buying dangerous drugs?

A: It was on June 24 when I saw students going there, sir.

Q: At that time, you did not have (sic) in possession of the search warrant?

A: We were already equipped or armed with the search warrant, sir.21

It is a settled rule that in cases involving violations of the Dangerous Drugs Act, credence is given to
prosecution witnesses who are police officers for they are presumed to have performed their duties
in a regular manner, unless there is evidence to the contrary.22 It must be emphasized that their
testimonies in open court are considered in line with the presumption that law enforcement officers
have performed their duties in a regular manner.23 In the absence of proof of motive to impute falsely
a crime as serious as violation of the Comprehensive Dangerous Drugs Act, the presumption of
regularity in the performance of official duty, as well as the findings of the trial court on the credibility
of the prosecution witnesses, shall prevail over petitioner’s self-serving and uncorroborated
denial.24 Moreover, the factual findings of the trial court, when affirmed by the Court of Appeals, are
conclusive and binding on this Court.25

Petitioner further contends that the testimonies of the defense witnesses were not considered;
otherwise, it would have been proven that the dangerous drugs found on top of the aparador were
planted. It must be remembered that 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 Dangerous Drugs Act.26 In this case, petitioner was not
able to present any concrete or strong evidence that would support his allegation that he was the
victim of a frame-up aside from his insinuation that had the trial court considered the testimonies of
the witnesses he presented, the same court could have inferred the presence of a set-up or the
planting of evidence on the part of the police operatives. In order to prosper, the defenses of denial
and frame-up must be proved with strong and convincing evidence.27

In claiming that the identity of the drugs subject of the charges was not proven beyond reasonable
doubt, petitioner states that there was no marking of the substances seized immediately after the
search and there was no proof that the drugs presented in court were the same drugs seized from
his house. Yet a close reading of the records shows the opposite.

Section 21, paragraph 1, Article II of R.A. 9165 provides:

Section 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;

The above provision is implemented by Section 21 (a), Article II of the Implementing Rules and
Regulations (IRR) of R.A. No. 9165, thus:

(a) 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: Provided, further, that non-compliance with these requirements under justifiable
grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved
by the apprehending officer/team, shall not render void and invalid such seizures of and custody
over said items.

The prosecution was able to prove the unbroken chain of custody of the items seized. As earlier
discussed, the witnesses for the prosecution were able to categorically testify that the dangerous
drugs were found in the residence of the petitioner during their search. As shown in Chemistry
Report No. D-143-2003, which was identified and testified on by Police Inspector Jessica Ramos
Quilang, the three (3) plastic sachets containing a substance was positive for methamphetamine
hydrochloride and marked as "RB-A," "RB-B," and "RB-C" and the six (6) plastic sachets were
positive for marijuana and marked as "RB-1," "RB-2," "RB-3," "RB-4," "RB-5" and "RB-
6."28 Thereafter, as testified by PO3 Flores, the items were photographed and the barangay captain
signed a certificate of good search, thus:

FISCAL LLOBRERA:

Q: And then after discovering the shabu and marijuana, what else happened?
A: We took pictures of the shabu and marijuana sir inside their house and we showed said pictures
to the barangay officials, sir.

Q: And where was Raul David when you were taking pictures of the marijuana and shabu?

A: He was inside their house seated, sir.

Q: How far was he from you?

A: Two (2) meters, sir.

Q: Was there any object that obstructed his view between you and him?

A: None, sir.

Q: After taking pictures of the shabu and marijuana, what else happened?

A: We requested the barangay captain to affix his signature on the certificate of good search, sir.

COURT:

Q: During the time of the search, where was the barangay captain?

A: He was with us, your Honor.

Q: In the conduct of your search, did you have any civilian component?

A: None, your Honor, only the barangay captain.

FISCAL LLOBRERA:

Q: Please give us the name of the barangay captain.

A: Barangay Captain Canono, sir.

Q: When you discovered the six (6) teabags of marijuana as well as the three (3) plastic sachets of
shabu, where was [B]arangay [C]aptain Canono then?

A: He was inside the house, sir.

COURT:

Q: [And] the aparador was visible to the barangay captain during that time when you first see (sic)
the marijuana and the shabu?

A: The aparador was visible to the barangay captain, your Honor.

FISCAL LLOBRERA:

Q: Was the aparador padlocked or not?

A: The aparador was padlocked and it is (sic) on top of it where we found the items, sir.

Q: Right on top of the aparador?

A: Yes, sir.

Q: It was not placed in a drawer?

A: No, sir, on top itself of the aparador.

Q: And so what did you do with the shabu and the marijuana?

A: We confiscated the items, sir.

Q: After confiscating it, what did you do with it?

A: We showed the shabu and the marijuana to the Spouses David, sir.

Q: After showing them to the spouses, what else happened?

A: We brought the evidence to the police station, sir.

Q: How about Raul David, what did you do with him?

A: We also brought him to the police station, sir.

Q: What happened in the police station?

A: We indorsed Raul David and the evidence we confiscated to our investigator, sir.29

Therefore, it is apparent from the above disquisition that the integrity and evidentiary value of the
items seized were well-preserved. What is of utmost importance is the preservation of the integrity
and the evidentiary value of the seized items, as it would be utilized in the determination of the guilt
or innocence of the accused.30 Anyway, this Court has consistently ruled that non-compliance with
the requirements of Section 21 of R.A. No. 9165 will not necessarily render the items seized or
confiscated in a buy-bust operation inadmissible.31 Strict compliance with the letter of Section 21 is
not required if there is a clear showing that the integrity and the evidentiary value of the seized items
have been preserved, i.e., the items being offered in court as exhibits are, without a specter of
doubt, the very same ones recovered in the buy-bust operation.32 Hence, once the possibility of
substitution has been negated by evidence of an unbroken and cohesive chain of custody over the
contraband, such contraband may be admitted and stand as proof of the corpus delicti
notwithstanding the fact that it was never made the subject of an inventory or was photographed
pursuant to Section 21 (1) of Republic Act No. 9165.33

Anent petitioner's contention that having been caught in possession of shabu and marijuana in one
occasion, he should have been charged with, and convicted of, one offense only, this Court finds it
meritorious.

Before the enactment of R.A. 9165, the governing law on dangerous drugs was R.A. 6425, which
differentiated regulated drugs from prohibited drugs. It laid down different provisions for possession
of regulated and prohibited drugs. Under R.A. 9165, the distinction between regulated and prohibited
drugs has been removed and both are now classified as dangerous drugs. The eradication of such
distinction was the real intention of the legislators. As read from the transcript of stenographic notes
of the Twelfth Congress on the deliberation of R.A. 9165, then Senate Bill No. 1858:

Senator Leviste. And we are in support of the good sponsor's conviction to give teeth to this new law
and to go all out against drugs.

Under the old law – R.A. No. 6425 – a classification was provided between a prohibited drug and a
regulated drug. I believe in the new proposed measure, there is no distinction between the two
categories. And in lieu of the two categories, the new measure merely provides for an all-embracing
category of dangerous drugs.

May we know, Mr. President, the significance of eliminating the two categories in the old law
because there might be adverse implications if we do not classify "prohibited" from "regulated"
drugs. There are instances, for example, when a cancer patient – I know I am not a doctor but
Senator Flavier might be able to enlighten us here – is allowed to use with prescription from a
licensed physician regulated drugs. Morphine, for example, for pain killers. How would this
declassification affect this case?

Senator Barbers. Well, her point is very valid, Mr. President. The reason as to why under R.A. No.
6425 there was a distinction between "prohibited" and "regulated" drugs is that this is in consonance
with the International Treaties on Drugs under the UN Convention of 1961, 1971, and 1988. Now,
when we speak of narcotics under this treaty, it would mean "prohibited" drugs. When we speak of
psychotropic under the same convention, it would mean "regulated" drugs. In this particular
proposal, we did not make any distinction anymore. Why? Because whether these are regulated,
whether these are prohibited, these are considered as dangerous drugs unless authorized by law.
That a patient, for example, is in need of some drugs, morphine, for example, then that would be
another story.34

xxxx

Senator De Castro. Mr. President, on page 3, line 3, the term used is "dangerous," while under our
present law, Republic Act No. 6425, as amended, the term used is "prohibited." May we know from
the sponsor the distinction between the words "prohibited" and "dangerous."

Senator Barbers. Yes, Mr. President. Under Republic Act No. 6425, there is a distinction between
prohibited drugs and regulated drugs. When we speak of prohibited drugs, it would mean that there
is no prescription needed. While in the regulated drugs, a prescription is needed in order to purchase
that kind of drug from the drugstore.

Under the present bill, Mr. President, we removed the distinction and we came up with the term
"dangerous drugs" instead of classifying these drugs into prohibited and regulated ones. Why?
Because there are prohibited drugs that sometimes are also being dispensed with prescription, like
for example, morphine and opium. These could be used as pain relievers. There are also regulated
ones which become prohibited drugs when we use a proportion which could not be considered as
therapeutic in nature.

Senator De Castro. Therapeutic and that includes marijuana, Mr. President?

Senator Barbers. That is correct, Mr. President, although marijuana is not dispensed in drugstores.
We classify marijuana under RA 6425 as a prohibited drug, while under this measure marijuana is
considered as a dangerous drug.35

xxxx

Senator Cayetano. Mr. President, I also note that there is no definition of "regulated drug" at least in
my cursory examination. Has the good sponsor deleted the provision of the Dangerous Drugs Act of
1972 or Republic Act No. 6425 where there is a definition of "regulated drug?" And if so, I just want
to find out why this particular definition of what constitutes a regulated drug is not included in this
bill?

Senator Barbers. That is correct, Mr. President. In the present measure, we already deleted
prohibited drugs as well as regulated drugs. We came up with one item only from regulated, from
prohibited, to dangerous drugs. That would be the classification now. Whether it is regulated or
prohibited, it is of no moment to us. What is important is that we define dangerous drugs.

Senator Cayetano. No. The reason I asked that, Mr. President, is, under the present law, "regulated
drugs" is defined and the penalties for transgression of the requirements of getting a regulated drug
is different from the transgression of committing any act in relation to what constitutes purely
dangerous drugs.

So this is the reason I am inquiring because it is important. Regulated drugs per se are not
dangerous drugs, regulated in the sense that it may be dispensed by a certified physician or
members of the medical or dental profession.

The only transgression or penalty that may be included on regulated drug is, for instance, if one
imports regulated drugs without the necessary authority from the present Dangerous Drugs Board,
and also the manufacture as well as the sale of the same.

So that is the reason I am inquiring, Mr. President.

Senator Barbers. I have with me here, Mr. President, a definition of a "regulated drug," but this is
applicable under Republic Act No. 6425. Under my proposal, we deleted the definition. We
concentrated on dangerous drugs.

Senator Cayetano. So am I correct then that the omission is deliberate, but it does not repeal the
provision of Republic Act No. 6425 which is known as the "Dangerous Drugs Act of 1972," vis-a-
vis the regulated drugs? It does not.1avv phi 1

Senator Barbers. Mr. President, this proposed measure is practically a repeal of Republic Act No.
6425.36

From the above-quoted, it is clear that the deliberate elimination of the classification of dangerous
drugs is the main reason that under R.A. 9165, the possession of any kind of dangerous drugs is
now penalized under the same section. The deliberations, however, do not address a case wherein
an individual is caught in possession of different kinds of dangerous drugs. In the present case,
petitioner was charged under two Informations, one for illegal possession of six (6) plastic heat-
sealed sachets containing dried marijuana leaves weighing more or less 3.865 grams and the other
for illegal possession of three (3) plastic heat-sealed sachets containing shabu weighing more or
less 0.327 gram. Under Section 11 of R.A. 9165, the corresponding penalty for each charge, based
on the weight of the dangerous drugs confiscated, is imprisonment for twelve (12) years and one (1)
day, as minimum, to fourteen (14) years, as maximum, and a fine of three hundred thousand pesos
(₱300,000.00). The trial court imposed a single penalty of imprisonment for twelve (12) years and
one (1) day, as minimum, to fourteen (14) years, as maximum, and a fine of three hundred thousand
pesos (₱300,000.00), while the CA modified it by imposing the corresponding penalty for each
charge.

Absent any clear interpretation as to the application of the penalties in cases such as the present
one, this Court shall construe it in favor of the petitioner for the subject provision is penal in nature. It
is a well-known rule of legal hermeneutics that penal or criminal laws are strictly construed against
the state and liberally in favor of the accused.37 Thus, an accused may only be convicted of a single
offense of possession of dangerous drugs if he or she was caught in possession of different kinds of
dangerous drugs in a single occasion. If convicted, the higher penalty shall be imposed, which is still
lighter if the accused is convicted of two (2) offenses having two (2) separate penalties. This
interpretation is more in keeping with the intention of the legislators as well as more favorable to the
accused.

WHEREFORE, the Petition for Review on Certiorari dated April 11, 2008 of petitioner Raul David is
hereby DENIED. Consequently, the Decision dated August 31, 2007 and Resolution dated February
20, 2008 of the Court of Appeals are hereby AFFIRMED with the MODIFICATION that the penalty of
imprisonment for Twelve (12) years & one (1) day, as minimum, to Fourteen (14) years, as
maximum, and a fine of Three Hundred Thousand Pesos (₱300,000.00) be imposed.

SO ORDERED.
G.R. No. L-41054 November 28, 1975

JOSE L. GAMBOA and UNITS OPTICAL SUPPLY COMPANY, petitioners,

vs.
COURT OF APPEALS and BENJAMIN LU HAYCO, respondents.

Assistant City Fiscal Leonardo L. Arguelles for petitioner Jose L. Gamboa.

Koh Law Offices for petitioner Units Optical Supply Company.

Arturo M. Tolentino and Montesa, Manikan and Associates for private respondent.

MARTIN, J.:

This is a petition to review on certiorari the judgment of the respondent Court of Appeals in CA-G.R.
No. SP-03877, promulgated on July 17, 1975, which We treat as special civil action (SC Resolution
of September 2, 1975), involving the proper appreciation of the rule on plurality of crimes, otherwise
known as "concursus delictuorum", and the theory of "continuous crime".

The private respondent Benjamin Lu Hayco was a former employee of petitioner company in its
optical supply business at Sta. Cruz, Manila. On January 5, 1973, one hundred twenty-four (124)
complaints of estafa under Article 315, para. 1-b of the Revised Penal Code were filed against him
by the petitioner company with the Office of the City Fiscal of Manila. After the procedural
preliminary investigation, the Office of the City Fiscal filed seventy-five (75) cases of estafa against
private respondent before the City Court of Manila. Except as to the dates and amounts of
conversions, the 75 informations commonly charge that "... the said accused, being then an
employee of the Units Optical Supply Company ..., and having collected and received from
customers of the said company the sum of ... in payment for goods purchased from it, under the
express obligation on the part of the said accused to immediately account for and deliver the said
collection so made by him to the Units Optical Supply Company or the owners thereof ..., far from
complying with his said aforesaid obligation and despite repeated demands made upon him ... did
then and there ... misappropriate, misapply and convert the said sum to his own personal use and
benefit by depositing the said amount in his own name and personal account with the Associated
Banking Corporation under Account No. 171 (or with the Equitable Banking Corporation under
Account No. 707), and thereafter withdrawing the same ... ."

A civil action for accounting (docketed as Civil Case No. 89373 of the Court of First Instance of
Manila) was likewise filed by Lu Chiong Sun, the owner of the Units Optical Supply Company,
complaining that during his hospital confinement from September 27, 1972 to October 30, 1972,
private respondent initiated discharging the business functions and prerogatives of the company.
And to paint a shade of validity to this exercise of powers, private respondent, thru fraud, deceit and
machinations duped Lu Chiong Sun into affixing his signature and thumbprint on a general power of
attorney in his (private respondent's) favor. With the use of this deed, private respondent closed the
accounts of Lu Chiong Sun with the Equitable Banking Corporation and, thereafter, opened accounts
in his own name with the same bank and with the Associated Banking Corporation.

While the criminal suits in particular were pending trial on the merits before the twelve branches of
the City Court of Manila,1 private respondent commenced on May 15, 1974 a petition for prohibition
with preliminary injunction before the Court of First Instance of Manila (Branch XV) against the
petitioners herein and the City Court Judges of Manila, claiming that the filing, prosecution and trial
of the seventy-five (75) estafa cases against him is not only oppressive, whimsical and capricious,
but also without or in excess of jurisdiction of the respondents City Fiscal and the City Court Judges
of Manila. Private respondent asserts that all the indictments narrated in the seventy-five (75)
informations were mere components of only one crime, since the same were only impelled by a
single criminal resolution or intent. On October 31, 1974, the lower court dismissed the petition on
the ground that the series of deposits and the subsequent withdrawals thereof involved in the
criminal cases were not the result of only one criminal impulse on the part of private respondent.

As a consequence, private respondent Benjamin Lu Hayco appealed to the Court of Appeals. On

July 17, 1975, the Appellate Court reversed the order of the lower court and granted the petition for
prohibition. It directed the respondent City Fiscal "to cause the dismissal of the seventy-five (75)
criminal cases filed against petitioner-appellant, to consolidate in one information all the charges
contained in the seventy-five (75) informations and to file the same with the proper court." The raison
d'etre of the ruling of the Court of Appeals is that:

Where the accused, with intent to defraud his employer, caused the latter to sign a document by
means of deceit and false representation, which document turned out to be a general power of
attorney, and with the use of said document he closed the accounts of his employer in two
banks and at the same time opened in his name new accounts in the same banks, and then made
collections from the customers of his employer, depositing them in the bank accounts in his name,
the series of deposits made by him which he later withdrew for his own use and benefit, constitutes
but one crime of estafa, there being only one criminal resolution and the different acts performed
being aimed at accomplishing the purpose of defrauding his employer."

We thus readily recognize that the singular question in this present action is whether or not the basic
accusations contained in the seventy-five (75) informations against private respondent constitute but
a single crime of estafa.

It is provided in Article 48 of our Revised Penal Code, as amended by Act No. 4000, that "(w)hen
a single act constitutes two or more grave or less grave felonies or when an offense is a necessary
means for committing the other, the penalty for the most serious crime shall be imposed, the same
to be applied in its maximum period." The intention of the Code in installing this particular provision
is to regulate the two cases of concurrence or plurality of crimes which in the field of legal doctrine
are called "real plurality" and "ideal plurality".2 There is plurality of crimes or "concurso de delitos"
when the actor commits various delictual acts of the same or different kind. "Ideal plurality" or
"concurso ideal" occurs when a single act gives rise to various infractions of law. This is illustrated by
the very article under consideration: (a) when a single act constitutes two or more grave or less
grave felonies (described as "delito compuesto" or compound crime); and (b) when an offense is a
necessary means for committing another offense (described as "delito complejo" or complex proper).
"Real plurality" or "concurso real", on the other hand, arises when the accused performs an act or
different acts with distinct purposes and resulting in different crimes which are juridically
independent. Unlike "ideal plurality", this "real plurality" is not governed by Article 48.3

Apart and isolated from this plurality of crimes (ideal or real) is what is known as "delito continuado"
or "continuous crime". This is a single crime consisting of a series of acts arising from a single
criminal resolution or intent not susceptible of division. For Cuello Calon, when the actor, there being
unity of purpose and of right violated, commits diverse acts, each of which, although of a delictual
character, merely constitutes a partial execution of a single particular delict, such concurrence or
delictual acts is called a "delito continuado". In order that it may exist, there should be "plurality of
acts performed separately during a period of time; unity of penal provision infringed upon or violated
and unity of criminal intent and purpose, which means that two or more violations of the same penal
provision are united in one and the same intent leading to the perpetration of the same criminal
purpose or aim."4

It is not difficult to resolve whether a given set of facts constitutes a single act which produces two or
more grave or less grave offenses or a complex crime under the definition of Article 48. So long as
the act or acts complained of resulted from a single criminal impulse it is usually held to constitute a
single offense to be punished with the penalty corresponding to the most serious crime, imposed in
its maximum period.5, The test is not whether one of the two offenses is an essential element of the
other.6 In People v. Pineda ,7 the court even expressed that "to apply the first half of Article 48, ...
there must be singularity of criminal act; singularity of criminal impulse is not written into the law."
Prior jurisprudence holds that where the defendant took the thirteen cows at the same time and in
the same place where he found them grazing, he performed but one act of theft.8 Or, the act of
taking the two roosters, in response to the unity of thought in the criminal purpose on one occasion,
constitutes a single crime of theft. There is no series of acts committed for the accomplishment of
different purposes, but only of one which was consummated, and which determines the existence of
only one crime. The act of taking the roosters in the same place and on the same occasion cannot
give rise to two crimes having an independent existence of their own, because there are not two
distinct appropriations nor two intentions that characterize two separate crimes. 9

In the case before Us, the daily abstractions from and diversions of private respondent of the deposits made by the customers of the optical
supply company from October 2, 1972 to December 30, 1972, excluding Saturdays and Sundays, which We assume ex hypothesi, cannot be
considered as proceeding from a single criminal act within the meaning of Article 48. The abstractions were not made at the same time and
on the same occasion, but on variable dates. Each day of conversion constitutes a single act with an independent existence and criminal
intent of its own. All the conversions are not the product of a consolidated or united criminal resolution, because each conversion is a
complete act by itself. Specifically, the abstractions and the accompanying deposits thereof in the personal accounts of private respondent
cannot be similarly viewed as "continuous crime". In the above formulation of Cuello Calon, We cannot consider a defalcation on a certain
day as merely constitutive of partial execution of estafa under Article 315, para. 1-b of the Revised Penal Code. As earlier pointed out, an
individual abstraction or misappropriation results in a complete execution or consummation of the delictual act of defalcation. Private
respondent cannot be held to have entertained continously the same criminal intent in making the first abstraction on October 2, 1972 for the
subsequent abstractions on the following days and months until December 30, 1972, for the simple reason that he was not possessed of any
fore-knowledge of any deposit by any customer on any day or occasion and which would pass on to his possession and control. At most, his
intent to misappropriate may arise only when he comes in possession of the deposits on each business day but not in futuro, since petitioner
company operates only on a day-to-day transaction. As a result, there could be as many acts of misappropriation as there are times the
private respondent abstracted and/or diverted the deposits to his own personal use and benefit. Thus, it may be said that the City Fiscal had
acted properly when he filed only one information for every single day of abstraction and bank deposit made by private respondent. 10 The
similarity of pattern resorted to by private respondent in making the diversions does not affect the susceptibility of the acts committed to
divisible crimes.

Apropos is the case of People v. Cid, 11 where the Court ruled that the malversations as well as the
falsifications in the months of May, June, July and August 1936 imputed to the accused "were not
the result of only one resolution to embezzle and falsify, but of four or as many abstractions or
misappropriations had of the funds entrusted to his care, and of as many falsifications also
committed to conceal each of said case. There is nothing of record to justify the inference that the
intention of the appellant when he committed the malversation in May, 1936 was the same intention
which impelled him to commit the other malversations in June, July, and August." The ruling holds
true when the acts of misappropriation were committed on two different occasions, the first in
January, 1955 to December, 1955, and the second in January, 1956 to July, 1956. It cannot be
pretended that when the accused disposed of the palay deposit in January, 1955 to December,
1955, he already had the criminal intent of disposing what was to be deposited in January, 1956 to
July, 1956. 12 There is no synonymy between the present case and that of People, v.
Sabbun, 13 where the Court held that the illegal collections made on different dates, i.e., December,
1949; January 1950 to February 1956; March 1956 to September 1957 constitutes a "continuing
offense", because the said collections were "all part of the fees agreed upon in compensation for the
service" to be rendered by the accused Sabbun in filing the claim of the spouses Dacquioag for U.S.
Veterans benefit and collecting the pensions received by the widow from time to time. "The
periodical collections form part of a single criminal offense of collecting a fee which is more than the
prescribed amount fixed by the law" and "were impelled by the same motive, that of collecting fees
for services rendered." As We have said, the various acts of defalcation perpetrated by private
respondent in the present case from October 2, 1972 to December 30, 1972 are susceptible of
division with separate criminal intents.

The respondent Court of Appeals harps upon the act of private respondent in allegedly
inducing, with intent to defraud, Lu Chiong Sun "to sign a document by means of deceit and false
representation, which document turned out to be a general power of attorney" and with the use of
which, he closed the accounts of the latter in two banks, at the same time opening in his name new
accounts in the same banks, for its conclusion that the acts complained of against private
respondent constitute one continuous crime of estafa. It is striking to note, however, that the
accusatory pleadings against private respondent are founded on Article 315, para. 1-b of the
Revised Penal Code, which defines and penalizes estafa by conversion or misappropriation. In this
form of estafa, fraud is not an essential element. 14 According to Groizard "impudence,
barefacedness covetousness, and disloyalty employed in taking advantage of an opportunity take
here the place formerly occupied by deceit." 15 "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. We may say in
passing that the view here expressed is further strengthened by the fact that of the nine paragraphs
of Article 535, the paragraph here under discussion is the only one in which the words "fraud", or
"defraud" do not occur." 16 In other words, the alleged act of private respondent in causing, with intent
to defraud, Lu Chiong Sun to affix his signature and thumbprint on the general power of attorney is
immaterial and ineffective insofar as the charges of conversions are concerned. If at all, the said
document may serve only the purpose of closing the accounts of Lu Chiong Sun with the banks and
nothing more. Definitely, there is no necessity for it before private respondent could commit the acts
of defalcation. As a matter of fact, private respondent resorted to this document only on October 17,
1972, or 15 days after he had already commenced the abstraction on October 2, 1972. 17

The characterization or description of estafa as a continuing offense cannot be validly seized upon
by private respondent as basis for its inference that the acts of abstraction in question constitute but
a single continuing crime of estafa. The sole import of this characterization is that the necessary
elements of estafa may separately take place in different territorial jurisdictions until the crime itself
is consummated. The moment, however, that the elements of the crime have completely concurred
or transpired, then an individual crime of estafa has occurred or has been consummated. The term
"continuing" here must be understood in the sense similar to that of "transitory" and is only intended
as a factor in determining the proper venue or jurisdiction for that matter of the criminal action
pursuant to Section 14, Rule 110 of the Rules of Court. 18 This is so, because "a person charged with
a transitory offense may be tried in any jurisdiction where the offense is part committed. In transitory
or continuing offense in which some acts material and essential to the crime and requisite to its
consummation occur in one province and some in another, the court of either province has
jurisdiction to try the case, it being understood that the first court taking cognizance of the case will
exclude the other." 19

ACCORDINGLY, the judgment of the Court of Appeals, subject matter of this proceeding, is hereby
reversed and set aside. The temporary restraining order issued by this Court on August 7, 1975,
enjoining the enforcement or implementation of the said judgment is hereby made permanent. No
costs.

SO ORDERED.
 ARTICLE 63
Article 63. Rules for the application of indivisible penalties. - In all cases in which the law prescribes
a single indivisible penalty, it shall be applied by the courts regardless of any mitigating or
aggravating circumstances that may have attended the commission of the deed.

In all cases in which the law prescribes a penalty composed of two indivisible penalties, the following
rules shall be observed in the application thereof:

1. When in the commission of the deed there is present only one aggravating circumstance,
the greater penalty shall be applied.

2. When there are neither mitigating nor aggravating circumstances and there is no
aggravating circumstance, the lesser penalty shall be applied.

3. When the commission of the act is attended by some mitigating circumstances and there
is no aggravating circumstance, the lesser penalty shall be applied.

4. When both mitigating and aggravating circumstances attended the commission of the act,
the court shall reasonably allow them to offset one another in consideration of their number
and importance, for the purpose of applying the penalty in accordance with the preceding
rules, according to the result of such compensation.

G.R. Nos. 131926 & 138991. June 18, 2003

PEOPLE OF THE PHILIPPINES, Appellee, v. MICHAEL U.

PAGALASAN alias Mike, RONNIE CABALO alias Romy, ALADIN
CABALO, FERDINAND CORTEZ, a JOHN DOE identified only as
FERNANDO, and a PETER DOE identified only as
Bong, Accused.

MICHAEL U. PAGALASAN alias Mike, Appellant.

DECISION

CALLEJO, SR., J.:

This is an automatic review of the Decision1 of the Regional Trial

Court of General Santos City, Branch 35, convicting appellant
Michael U. Pagalasan of two counts of kidnapping for ransom of
George Lim and his 10-year-old son Christopher Neal Lim and
sentencing him to double death.
 The Antecedents

The Spouses George and Desiree Lim and their three young
children, one of whom was 10-year-old Christopher Neal Lim,
resided at Villa Consuelo Subdivision, General Santos City. The
spouses hired a security guard, Ferdinand Cortez, from the Valiant
Security Agency to provide security services to the family. On
September 4, 1994, at 11:00 p.m., the spouses and their children
were in the masters bedroom watching television. The couples
housemaid, Julita Sarno, was in the kitchen. She heard knocks on
the kitchen door. Thinking that it was Ferdinand, she opened the
door. Four men, about 55 to 56 tall, each armed with handguns,
two of whom were holding hand grenades, barged into the kitchen.
The four intruders wore bonnets over their faces. With them was
Ferdinand, whose hands were tied behind his back. When asked by
the masked men where her employers were, Julita responded that
they were in their bedroom. On orders of the intruders, she knocked
on the bedroom door. When Georges daughter opened the door,
three of the masked men barged into the room, while the fourth
masked man remained in the sala of the house.2 The three masked
men shouted to George and Desiree: Walang mangyayari sa inyo
basta ibigay ninyo ang kailangan namin. (Nothing will happen to
you provided you give us what we want.)3 They ransacked the
house, getting cash and valuables. The masked men gave Desiree a
handwritten note,4 and dragged George and Christopher Neal Lim
out of the bedroom through the sala to the garage, where Georges
Nissan car was parked for the night. George saw Ferdinand in the
sala with his hands tied behind his back. One of the masked men
ordered George to hand over the key to his vehicle, to board the car
and occupy the back seat along with Christopher. Father and son
did as they were told. Two of the masked men positioned
themselves on either side of George and Christopher. The third man
drove the car, while the fourth sat on the passengers seat beside
the driver. The car cruised along the national highway. When the
car was nearing the Gambalan Kitchenette, George and Christopher
were blindfolded. The masked men told them that they would be
brought to Polomolok. After about fifteen minutes, the car stopped
at Sitio Tupi. The two men who were seated at the back and the
masked man seated beside the driver alighted from the car,
bringing Christopher with them. George was transferred to the front
seat beside the driver. George was told that he would be
transported to Maasim.

In the meantime, SPO2 Federico Pao, the duty officer of Police

Precinct No. 2, received a radio report that George Lim and his son
Christopher had been kidnapped. Police investigators were
dispatched to the Lim residence to conduct an on-the-spot
investigation. They brought Ferdinand and Julita to the police
station for investigation. SPO2 Renato Daga-as, SPO2 Datur
Villanueva and SPO1 Alimuddin Timbao were directed to establish a
mobile checkpoint at the intersection of the national highway and a
dirt road (Espina Road). The three policemen boarded a Tamaraw
mobile car and parked it at the said intersection. At about thirty
meters from the checkpoint, the masked driver of the Nissan vehicle
saw the police car. Instead of running the car through the
checkpoint, the driver stopped and switched off its headlights. He
removed his bonnet and Georges blindfold, warning the latter not to
make any false move. George looked at the driver, who turned out
to be the appellant Michael Pagalasan.

The three police officers approached the car. Daga-as went to the
right side of the car beside the passenger seat, while Villanueva
went to the left side, near the drivers seat. For his part, Timbao
proceeded to the cars rear end. Daga-as and Villanueva identified
themselves to George and Michael as police officers on the lookout
for a certain George Lim and his son who had been kidnapped in
General Santos City. Daga-as inquired from George what his name
was, and George replied that he was Albert Lim. The driver
identified himself as Michael Pagalasan. George gave a false first
name because he was afraid Michael might shoot him. Daga-as
noticed that Georges fingers were trembling. Villanueva knocked at
the door on the drivers side, and tried to open the same, but it was
locked. When Michael himself opened the door, Villanueva pulled
him out of the vehicle and brought him to the mobile car. Michael
was suddenly in the custody of the policemen. George then
identified himself as one of the kidnapped victims. He also told the
policemen that his son was still with the other kidnappers. The
policemen thereafter searched the Nissan car and found a .38
caliber5 handgun with six live bullets in its chamber6 and a grenade
under the drivers seat.7 The policemen brought Michael and George
to the police station where Ferdinand was being interrogated by
police investigators. Ferdinand told George that he had nothing to
do with the kidnapping, but before he could explain further, he was
whisked into the investigation room. After giving a sworn statement
to the police investigator, George was allowed to go home. Desiree
gave George the handwritten letter earlier given to her by the
kidnappers before they left the house that evening. In the letter,
the spouses were warned not to coordinate with the military, nor to
take any action in connection with the kidnapping without their
knowledge or consent. They were also informed that the
malefactors would communicate with the couple, whether by letter
or through the telephone only through MUBARAK II or 2.8 Julita
executed an affidavit in connection with the kidnapping.9cräläwvirtua lib räry

Police Inspector Antonio Evangelista ordered SPO4 Recio Aniversario

to conduct a custodial investigation on Michael. Recio asked Michael
if he wanted to execute an affidavit, and Michael replied that he was
going to execute one. The police investigator inquired if he knew of
any lawyer, to which Michael replied in the negative. The police
investigator then suggested Atty. Tomas C. Falgui, a private
practitioner, as his counsel. When Michael agreed, the police
investigator phoned the lawyer, requesting the latter to assist
Michael while undergoing custodial investigation. The lawyer agreed
and forthwith proceeded to the police station. Michael gave his
confession under custodial investigation with the assistance of Atty.
Falgui.10
cräläwvirtuali brä ry

In his confession, Michael admitted that upon orders of Ronnie

Cabalo, he and three other men, Aladin (Ronnies brother), a Muslim
known as Ferdinand, and Bong (a resident of Purok Islam), had
kidnapped George and his son Christopher. Ronnie Cabalo
instructed Michael to use Georges vehicle to transport father and
son to the banana plantation where Aladin, Ferdinand and Boy
would alight with Christopher, and to thereafter return George to his
house. Aladin had given him a handgun for his use. Ferdinand
Cortez was in cahoots with them. He was at first reluctant to obey
Ronnie, but relented when he was told not to be afraid and to use
the grenade in case of trouble. George told him that he had already
given money to Aladin, and that Michaels companions had taken
some pieces of jewelry from him and his wife before they left the
Lim residence.

In the light of Michaels confession, farmer Hadji Aladin Malang

Cabalo, Ronie Puntuan and Fernando Quizon were arrested and
detained at Camp Fermin Lira Barracks, General Santos City. In the
meantime, on September 6, 1994, George received another
handwritten letter, ordering the release of Michael and Ronie
Puntuan because they were innocent, and demanding P3,000,000
for Christophers release.11 cräläwvirt uali brä ry

On September 9, 1994, George received another handwritten letter

dated September 9, 1994, this time from MUBARAK II or 2
informing him and his wife that the kidnappers did not want the
military to be involved nor innocent people to be prejudiced. The
spouses were also warned that their son would not be released alive
unless Ronie Puntuan was freed in three days.12 On the same day at
3:25 p.m., Ronie Puntuan, through counsel, filed a motion with the
MTC praying that he be transferred from the Camp Fermin Lira
Barracks to the General Santos City Jail.13 cräläwvi rtua lib räry

In the morning of the following day, September 10, 1994,

Christopher was rescued by policemen without any ransom being
paid. On September 13, 1994, George executed a sworn statement
relating to the incidents that happened from September 4, 1994 to
September 10, 1994.14 cräläwvirtua lib räry

Michael was charged with kidnapping for ransom and violation of PD

1866 before the Municipal Trial Court (MTC) of General Santos
City.15
cräläwvirtual ibrä ry

During the initial stage of the preliminary investigation by the MTC

on September 6, 1994, Atty. Falgui appeared as Michaels counsel
and testified on what transpired immediately before, during and
after the custodial investigation, including Michaels execution of his
extrajudicial confession.16 Michael was also placed on the witness
stand and, with the assistance of counsel, testified on his
extrajudicial confession. He affirmed the veracity of the contents of
the said confession.17 Subsequently, Michael, through his mother,
secured the services of Atty. Emmanuel V. Fontanilla. On September
12, 1994, Michael executed an affidavit withdrawing his September
5, 1994 extrajudicial confession, in which he stated that: (a) he was
not assisted by counsel of his own choice when he executed the
extrajudicial confession; and (b) Ronie Puntuan, who was arrested
and detained, was not Ronnie Cabalo.18 Michael also executed a
counter-affidavit where he denied the accusations against him, and
clarified that he was forced and intimidated into making his
September 5, 1994 confession, and he was not provided with
counsel of his own choice during custodial investigation. His
constitutional rights under custodial investigation were allegedly not
sufficiently explained to him.19 He filed the said affidavits with the
MTC during the preliminary investigation.

On September 23, 1994, the MTC issued a resolution finding

probable cause for charging the accused with kidnapping for
ransom. The Office of the City Prosecutor conducted a
reinvestigation of the case. On October 4, 1994, the Office of the
City Prosecutor issued a resolution ordering the release of Hadji
Aladin Malang Cabalo on the ground that he was not the Aladin
Cabalo referred to by Michael in his confession.20cräläwvirtual ibrä ry

An Information for violation of PD 1866 was filed against Michael on

October 17, 1994 with the Regional Trial Court of General Santos
City, Branch 22, docketed as Criminal Case No. 11062. On
November 3, 1994, Michael, Ronnie Cabalo, Aladin Cabalo,
Ferdinand Cortez, a certain John Doe identified as Fernando, and
Peter Doe were charged with kidnapping for ransom in an
Information, docketed as Criminal Case No. 11098, which reads:

That on or about September 4, 1994, in General Santos City,

Philippines, within the jurisdiction of this Honorable Court, the said
accused, conspiring, and confederating together and mutually
helping each other, did then and there willfully, unlawfully and
feloniously kidnap George Lim, and his ten-year-old son,
Christopher Neal Lim, for the purpose of extorting ransom from the
said victims.21
cräläwvirt ualib rä ry
The cases were raffled to Branch 22 of the Regional Trial Court.
When arraigned in Criminal Case No. 11062 for Violation of PD
1866, Michael pleaded not guilty. On February 6, 1995, Michael,
Ferdinand and Fernando Quizon were arraigned in Criminal Case No.
11098 and pleaded not guilty.22 Ronnie Cabalo and Aladin Cabalo
remained at-large. On August 24, 1995, the judge hearing the cases
inhibited himself. Both cases were re-raffled, assigned to, and were
tried jointly by Branch 35 of the Regional Trial Court.

During the trial, Michael, through counsel, admitted the truth of the
contents of the affidavit executed by Julita Sarno.23 Michael also
executed an affidavit on December 5, 1995 alleging inter alia that
he was forced at gunpoint by Boy and Aladin to barge into the Lim
residence and drive the latters car, and that he did not know
Fernando Quizon.24 After the prosecution had presented all its
witnesses, it filed a formal offer of its documentary evidence
including Michaels December 15, 1995 Sworn Statement and his
confession.25 Michael did not file any comment or opposition to the
said offer. On May 3, 1996, the trial court issued an order admitting
the prosecutions documentary evidence, including Michaels
confession.26 After the prosecution had rested its case, Fernando
Quizon filed a demurrer to evidence in Criminal Case No. 11098. On
July 2, 1996, the court issued an order granting the demurrer to
evidence of the said accused and acquitted him of the charge.27

The Defense and Evidence of the Accused

Ferdinand Cortez denied kidnapping George and Christopher. He

testified that he had been employed as a security guard by the
Valiant Security Agency. He was assigned by the agency to protect
George Lim and his family. On the evening of September 4, 1994,
Ferdinand was washing Georges car in the garage. The house was
surrounded by a 10-foot wall, and the gate was locked. Ferdinand
was shocked when masked men, armed with handguns, suddenly
arrived. They poked their guns at him, maltreated him, and tied his
hands behind his back. The masked men knocked at the door of the
house and when the housemaid Julita Sarno opened it, the men
dragged Ferdinand towards the entrance, to make it appear that he
was the one knocking. The masked men then barged into the sala
and tied Julitas hands. Ferdinand claimed he never met any of the
kidnappers before September 4, 1994. He was puzzled why he was
being implicated in the case.

For his part, Michael testified that he was a Muslim, 19 years of age,
and an elementary school graduate. He made a living as a
conductor of his uncles jeepney. At night, the jeepney was parked in
Tambler, and it was where he usually slept. On the evening of
September 4, 1994, at about 9:00 p.m., he was in their house at
Purok Islam public market, General Santos City. His friend Bong
arrived, and invited him for a stroll and to accompany the latter to
get a motorcycle. Michael agreed. They took a tricycle and arrived
at the Villa Consuelo Subdivision. Michael was surprised when the
tricycle stopped near the gate of the Lim residence and masked
men suddenly appeared, poking their guns at him. Bong fled,
leaving Michael alone to fend for himself. The masked men ordered
Michael to drive a car, and warned him that if he refused, he would
be killed. Momentarily, one of the men emerged from the house,
with George Lim in tow. George gave the key to his Nissan car to
one of the kidnappers, who in turn handed it over to Michael. The
men forced George and his son Christopher to board the car. Father
and son were seated between two masked men. Afraid for his life,
Michael was forced to drive the car with one of the kidnappers
pointing a gun at him, seated to his right at the passengers side.
The kidnappers ordered Michael to drive the car towards the
direction of Barangay Ligaya.

When the car reached a dark portion of the road in Barangay

Ligaya, three of the men alighted, bringing Christopher with them.
Michael then pleaded to George to bring him first to Tambler, where
the jeepney of his uncle was parked. Michael wanted to sleep there
instead of going home. George agreed, and drove the car himself
through Barangay Makar. George told Michael that they had to
travel along Espina road, a dirt road, instead of the regular road
because they might encounter policemen, and Christopher might be
killed by his kidnappers. However, the car had to stop at the
intersection of the national highway and Espina Road when George
saw policemen and the mobile police car parked at the intersection.
Michael was arrested by the police, blindfolded, and brought to the
mobile car where he was also mauled. His head was banged against
the sides of the mobile car. At the precinct, Michael was mauled
anew by the policemen. It was only after he had given his
statement to a police investigator that Atty. Falgui arrived and told
Michael, I am your lawyer.28 Atty. Falgui instructed Michael to tell
the whole truth.29 When his mother Camaria Opong visited him, he
told her that he had been blindfolded and mauled at the station, and
that because of this, his body ached. She saw a big hump in his
head. On September 8, 1994, she secured the services of Atty.
Fontanilla as counsel of her son. The lawyer went to the City Jail
and talked to Michael. Michael showed the lawyer the contusions
and bruises on his body, and the scratches on his neck. Michael told
the lawyer that he had been maltreated by an inmate at the
detention cell. He also narrated that he knew nothing about the
kidnapping and that he was only hired by somebody to drive a car.
Michael assured the lawyer that he was not aware of the purpose of
the culprits in kidnapping George and Christopher. On September 9,
1994, Atty. Fontanilla executed an affidavit reiterating the
information Michael conveyed to him.30 On September 16, 1994,
Michael filed an urgent motion for medical check-up, which the
court granted.31 cräläwvirtual ibrä ry

Dra. Virginia Ramirez, Officer-In-Charge of the City Integrated

Health Services, examined Michael on September 22, 1994 and
found him suffering from myalgia residual or muscle pains due to
mauling, which she surmised took place about one week to ten days
before the examination. She issued a medical certificate of the said
examination.32cräläwvirt ualib räry

On September 24, 1997, the trial court rendered judgment

acquitting Ferdinand Cortez and convicting Michael of kidnapping for
ransom, the decretal portion of which reads:

JUDGMENT

WHEREFORE, premises considered, the accused is hereby sentenced

as follows:
In Criminal Case No. 11062 for failure of the prosecution to prove
the accusation against the accused Michael Pagalasan beyond
reasonable doubt, he is hereby ACQUITTED of the crime charged.

In Criminal Case No. 11098, the accused Michael Pagalasan is

hereby found guilty of the crime of kidnapping for ransom as
defined and penalized under Article 267 as amended by Section 8 of
Republic Act 7659, and there being no modifying circumstance to
consider, he is sentenced to suffer the EXTREME PENALTY OF
DEATH insofar as the case of George Lim is concerned.

The same penalty of death shall also be imposed against Michael

Pagalasan in the case of Christopher Neal Lim who was kidnapped
on the same occasion and was released only on the sixth day after
his captivity.

The case of Ferdinand Cortez, for lack of sufficient evidence to

convict him, he is hereby ACQUITTED of the crime charged.

SO ORDERED.33 cräläwvirtua lib räry

The trial court ruled in Criminal Case No. 11098 that with or without
the confession of Michael, the prosecution adduced proof beyond
reasonable doubt that he, in conspiracy with three others,
kidnapped George and Christopher. It found the testimony of
George straightforward and positive, credible and entitled to full
probative weight. The trial court sentenced Michael to double death
on its finding that he and his cohorts kidnapped George and
Christopher for the purpose of extorting ransom. It disbelieved
Michaels confession implicating Ferdinand Cortez, and acquitted the
latter for failure of the prosecution to prove his guilt beyond
reasonable doubt. The trial court likewise acquitted Michael in
Criminal Case No. 11062.

Michael, now the appellant, asserts that:

THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED-

APPELLANT FOR THE CRIME OF KIDNAPPING FOR RANSOM OF
CHRISTOPHER NEAL LIM DESPITE THE FAILURE OF THE
PROSECUTION TO PROVE HIS GUILT BEYOND REASONABLE DOUBT.

II

THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED-

APPELLANT FOR THE CRIME OF KIDNAPPING FOR RANSOM OF ONE
GEORGE LIM WITHOUT ANY BASIS IN FACT AND IN LAW.

III

THE TRIAL COURT ERRED IN NOT CONSIDERING THE DEFENSE

INTERPOSED BY THE ACCUSED-APPELLANT AND IN GIVING
CREDENCE TO THE INCONSISTENT TESTIMONY OF GEORGE LIM.34

The appellant is guilty of

kidnapping Christopher
under Article 267 of the
Revised Penal Code.

On the first assignment of error, the appellant avers that the

prosecution failed to prove his guilt beyond cavil of doubt for the
crime of kidnapping Christopher. Georges testimony that the gun
and hand grenade35 were found in the car, under the seat beside
the driver is inconsistent with his own statement before the police
investigator that the said gun and grenade were found in the
appellants possession; hence, the testimony of George is incredible
and barren of probative weight. The case for the prosecution was
enfeebled by its failure to present Christopher to testify on his
kidnapping and to corroborate the testimony of his father. The
failure of the prosecution to present Christopher as a witness raised
the presumption that if he had been so presented, he would have
testified on matters adverse to the prosecution. For its part, the
Office of the Solicitor General contends that the testimony of
George, its principal witness, as well as those of its other witnesses,
is sufficient to prove, beyond reasonable doubt, that the appellant
conspired with three others in kidnapping Christopher for ransom.
There was no need for the prosecution to present Christopher to
testify on his kidnapping, as his testimony would be merely
corroborative of his fathers account of events.
The contention of the appellant is barren of merit.

Article 267 of the Revised Penal Code as amended by Republic Act

No. 7659 reads:

ART. 267. Kidnapping and serious illegal detention. Any private

individual who shall kidnap or detain another, or in any other
manner deprive him of his liberty, shall suffer the penalty
of reclusion perpetua to death:

1. If the kidnapping or detention shall have lasted more than three

days.

2. If it shall have been committed simulating public authority.

3. If any serious physical injuries shall have been inflicted upon the
person kidnapped or detained, or if threats to kill him shall have
been made.

4. If the person kidnapped or detained shall be a minor, except

when the accused is any of the parents, female, or a public officer.

The penalty shall be death where the kidnapping or detention was

committed for the purpose of extorting ransom from the victim or
any other person, even if none of the circumstances above-
mentioned were present in the commission of the offense.

When the victim is killed or dies as a consequence of the detention

or is raped, or is subjected to torture or dehumanizing acts, the
maximum penalty shall be imposed. (As amended by RA No. 7659).

For the accused to be convicted of kidnapping, the prosecution is

burdened to prove beyond reasonable doubt all the elements of the
crime, namely: (a) the offender is a private individual; (b) he
kidnaps or detains another, or in any manner deprives the latter of
his liberty; (c) the act of detention or kidnapping must be illegal;
and (d) in the commission of the offense any of the following
circumstances is present: (1) the kidnapping or detention lasts for
more than three days; (2) it is committed by simulating public
authority; (3) any serious physical injuries are inflicted upon the
person kidnapped or detained or threats to kill him are made; or (4)
the person kidnapped or detained is a minor, female, or a public
officer.36 If the victim of kidnapping and serious illegal detention is a
minor, the duration of his detention is immaterial. Likewise, if the
victim is kidnapped and illegally detained for the purpose of
extorting ransom, the duration of his detention is immaterial.

The essential elements for this crime is the deprivation of liberty of

the victim under any of the above-mentioned circumstances coupled
with indubitable proof of intent of the accused to effect the
same.37 There must be a purposeful or knowing action by the
accused to forcibly restrain the victim coupled with intent.38 cräläwvirt ualib rä ry

Judge Learned Hand once called conspiracy the darling of the

modern prosecutors nursery.39 There is conspiracy when two or
more persons agree to commit a felony and decide to commit
it.40 Conspiracy as a mode of incurring criminal liability must be
proven 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. Conspiracies are clandestine in nature. It may be
inferred from the conduct of the accused before, during and after
the commission of the crime, showing that they had acted with a
common purpose and design.41 Paraphrasing the decision of the
English Court in Regina v. Murphy,42 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.43 To hold an accused guilty as a co-principal by reason of
conspiracy, he must be shown to have performed an overt act in
pursuance or furtherance of the complicity.44 There must be
intentional participation in the transaction with a view to the
furtherance of the common design and purpose.45 cräläwvirtua lib räry

The United States Supreme Court in Braverman v. United

States,46 held that the precise nature and extent of the conspiracy
must be determined by reference to the agreement which embraces
and defines its objects. For one thing, the temporal dimension of
the conspiracy is of particular importance. Settled as a rule of law is
that the conspiracy continues until the object is attained, unless in
the meantime the conspirator abandons the conspiracy or is
arrested. There is authority to the effect that the conspiracy ends at
the moment of any conspirators arrest, on the presumption, albeit
rebuttable, that at the moment the conspiracy has been thwarted,
no other overt act contributing to the conspiracy can possibly take
place, at least as far as the arrested conspirator is concerned.47 The
longer a conspiracy is deemed to continue, the greater the chances
that additional persons will be found to have joined it. There is also
the possibility that as the conspiracy continues, there may occur
new overt acts. If the conspiracy has not yet ended, then the
hearsay acts and declarations of one conspirator will be admissible
against the other conspirators and one conspirator may be held
liable for substantive crimes committed by the others.48 cräläwvirt ualib rä ry

Each conspirator is responsible for everything done by his

confederates which follows incidentally in the execution of a
common design as one of its probable and natural consequences
even though it was not intended as part of the original
design.49 Responsibility of a conspirator is not confined to the
accomplishment of a particular purpose of conspiracy but extends to
collateral acts and offenses incident to and growing out of the
purpose intended.50 Conspirators are held to have intended the
consequences of their acts and by purposely engaging in conspiracy
which necessarily and directly produces a prohibited result that they
are in contemplation of law, charged with intending the
result.51 Conspirators are necessarily liable for the acts of another
conspirator even though such act differs radically and substantively
from that which they intended to commit.52 The Court agrees with
the ruling of the Circuit Court of Appeals (Second District) per Judge
Learned Hand in United States v. Peoni53 that nobody is liable in
conspiracy except for the fair import of the concerted purpose or
agreement as he understood it; if later comers change that, he is
not liable for the change; his liability is limited to the common
purpose while he remains in it. Earlier, the Appellate Court of
Kentucky in Gabbard v. Commonwealth54 held that:
The act must be the ordinary and probable effect of the wrongful
acts specifically agreed on, so that the connection between them
may be reasonably apparent, and not a fresh and independent
project of the mind of one of the confederates, outside of or foreign
to the common design, and growing out of the individual malice of
the perpetrator.

Equally persuasive is the pronouncement of the Circuit Court of

Appeals (Second District) in United States v. Crimms,55 that it is
never permissible to enlarge the scope of the conspiracy itself by
proving that some of the conspirators, unknown to the rest, have
done what was beyond the reasonable intendment of the common
understanding. This is equally true when the crime which the
conspirators agreed upon is one of which they severally might be
guilty though they were ignorant of the existence of some of its
constitutive facts. Also, while conspirators are responsible for
consequent acts growing out of the common design they are not for
independent acts growing out of the particular acts of individuals.56
cräläwvirt ualib rä ry

In this case, the evidence on record inscrutably shows that the

appellant and his three cohorts were armed with handguns; two of
them had hand grenades, and all of them had masks over their
faces. They gained entry into the Lim residence after overpowering
the security guard Ferdinand and the housemaid Julita, and tying
their hands behind their backs. One of the masked men remained in
the sala, while the three others barged into the bedroom of George
and Desiree, and kidnapped George and his ten-year-old son
Christopher. The appellant and his cohorts forced father and son to
board Georges car. The appellant drove the car, dropped off
Christopher and his cohorts at Sitio Tupi, and drove on with George
in the car towards the direction of Maasim.

The collective, concerted and synchronized acts of the appellant and

his cohorts before, during and after the kidnapping constitute
indubitable proof that the appellant and his three companions
conspired with each other to attain a common objective: to kidnap
George and Christopher and detain them illegally. The appellant was
a principal by direct participation in the kidnapping of the two
victims.
The trial court found the testimony of George straightforward and
positive, and entitled to credit and full probative weight.57 The legal
aphorism is that the findings of facts of the trial court, its calibration
of the testimonies of witnesses and of their probative weight, its
conclusions anchored on its findings are accorded high respect by
the appellate court, if not conclusive effect, because of the unique
advantage of the trial court of observing at close range the
demeanor, conduct and deportment of witnesses as they regale the
trial court with their testimonies.58 It is true that the appellate court
is not bound by the findings and conclusions of the trial court if the
latter ignored, misunderstood, misapplied or misinterpreted cogent
facts and circumstances, which, if considered, would change the
outcome of the case.59 This ruling, however, is inapplicable in the
case at bar, since the appellant failed to establish that the trial court
erred in this wise.

George testified that when the policemen found the gun and
grenade60 inside his car, the appellant was already at the police
station.61 However, in his September 13, 1994 Affidavit,62 George
stated that the policemen found the gun when the appellant was
frisked, while the grenade was spotted under the passengers seat,
beside the driver. This seeming inconsistency between the two
statements does not discredit his testimony nor his credibility for
the following reasons: (a) it is of judicial knowledge that affidavits
being taken ex parte are almost always incomplete and often
inaccurate and are generally inferior to the testimony of a witness in
open court;63 (b) the credibility of Georges testimony cannot be
impeached by the inconsistent statements contained in his sworn
statement because the said statement was not admitted in
evidence; and Section 34, Rule 132 of the Revised Rules of
Evidence provides that the Court shall not consider evidence which
has not been formally offered; besides, George was not confronted
with his sworn statement and accorded an opportunity to explain
the inconsistency;64 (c) the inconsistency refers to trivial, minor and
collateral matters and not to the substance of his testimony. Such
minor inconsistency even enhances its veracity as the variances
erase any suspicion of a rehearsed testimony.65 A truth-telling
witness is not always expected to give an error-free testimony,
considering the lapse of time and the treachery of human
memory.66 cräläwvirtua lib räry

Neither is the case for the prosecution impaired by the failure of the
prosecution to present Christopher as its witness. It bears stressing
that Georges testimony is corroborated by Julita and the three
arresting officers. Besides, case law has it that the testimony of a
single witness, if positive and credible, is sufficient to sustain a
judgment of conviction.67 The law does not require the testimonies
of at least two witnesses for the conviction of an accused for
kidnapping and serious illegal detention. The prosecution has the
discretion to decide on who to call as witness during the trial, and
its failure to present a particular witness does not give rise to the
presumption that evidence willfully suppressed would be adverse if
withheld, where the evidence is at the disposal of the appellant and
is merely cumulative or corroborative.68 In this case, the testimony
of George is, by itself, independently of Christophers testimony,
sufficient proof of the guilt of the appellant. George had personal
knowledge of the facts and circumstances of the kidnapping, as he
himself had been kidnapped along with his young son. His failure to
testify on where Christopher was detained after the three cohorts of
the appellant had alighted from the car with Christopher, and the
circumstances surrounding the rescue do not weaken the case of
the prosecution, as the said facts and circumstances had occurred
after the crime of kidnapping had already been a fait accompli.

The prosecution failed to prove

that in kidnapping George and
Christopher, the appellant and
his cohorts intended to extort
ransom.

The trial court convicted the appellant of kidnapping George and

Christopher for ransom and sentenced him to double death on its
finding that the appellant and his co-accused conspired to extort
ransom for the release of the victims. For his part, the appellant
contends that the prosecution failed to prove the element of
extorting ransom. The appellant argues that he cannot be held
liable for kidnapping for ransom, even if after his arrest on
September 4, 1994 his co-conspirators actually demanded ransom
for Christophers release. The prosecution failed to prove that he had
knowledge of and concurred with the said demand.

The Court agrees with the appellant. The second paragraph of

Article 267 of the Revised Penal Code reads:

The penalty shall be death where the kidnapping or detention was

committed for the purpose of extorting ransom from the victim or
any other person, even if none of the circumstances above-
mentioned were present in the commission of the offense.

The provision is pursuant to Rep. Act No. 1084 approved on June

15, 1984 derived from the so-called Lindbergh Law in the United
States, approved on June 22, 1932, as amended on May 13, 1934.

To warrant the imposition of the death penalty for the crime of

kidnapping and serious illegal detention for ransom, the prosecution
must prove beyond reasonable doubt the following: (a) intent on
the part of the accused to deprive the victim of his liberty; (b)
actual deprivation of the victim of his liberty; (c) motive of the
accused, which is extortion of ransom from the victim or any other
person. In kidnapping or serious illegal detention for ransom, the
purpose of extorting ransom is a qualifying circumstance which
must be alleged in the Information and proved by the prosecution
as the crime itself by words and overt acts of the accused before,
during and after the kidnapping and detention of the victim. Neither
actual demand for nor actual payment of ransom is necessary for
the crime to be committed.69 Although kidnapping for a certain
purpose is a qualifying circumstance, the law does not require that
the purpose be accomplished.70 Ransom employed in the law is so
used in its common or ordinary sense: a sum of money or other
thing of value, price, or consideration paid or demanded for
redemption of a kidnapped or detained person, a payment that
releases from captivity.71 It may include benefits not necessarily
pecuniary which may accrue to the kidnapper or a third person as a
condition for the release of the victim.72
cräläwvirtual ibrä ry

In this case, the prosecution was able to prove beyond reasonable

doubt that the appellant conspired with three others to kidnap the
victims. However, it failed to prove that they intended to extort
ransom from the victims themselves or from some other person,
with a view to obtaining the latters release. The kidnapping by itself
does not give rise to the presumption that the appellant and his co-
conspirators purpose is to extort ransom from the victims or any
other person.

The only evidence adduced by the prosecution to prove the element

of extorting ransom are the three handwritten letters: the first was
received by Desiree on September 4, 1994, while the second and
third letters were received by George on September 6 and 9, 1994,
respectively.

The handwritten letter received by Desiree on September 4,

1994, first letter for brevity, reads:

Para Sa Inyo Mr. & Mrs. Lim,

Una wag na wag kayong gumawa ng hakbang na hindi namin alam

o gusto, lalong-lalo na sa pakikipag-usap sa militar o magkoordinate
sa militar ay hindi namin gustong mangyari ang ganon mga sistem.
Ang pangalawa, wag na wag kayong tumanggap ng negotiator na
walang palatandaan na galing sa amin, pakiusap lang yon na dapat
ninyong sundin, madidisgrasya ang aming dala kung kayoy
magkakamali ng hakbang.

Maliwanag sana sa inyo ang aming mga salaysay.

Note

Palatandaan na galing sa aming hakbang ay ito

MR. MUBARAK II or 2

Sulat man o telephone73 cräläwvirtua lib räry

The letter received by George on September 6, 1994, second

letter for brevity, reads:

Ronie Puntuan
 Michael Pagalasan

Mr. G. Lim palayain ninyo ang suspek ninyo. Wala silang kasalanan
bago natin tapusin ang usapan tatlong milyong piso (3,000,000)
katumbas ng kalayaan ng mahal ninyong anak. Paalisin ang mga
sundalo. Kailangan ang Black Out News. Huwag kang magkakamali
Mr. Lim. Kunting sipyot mo patay ang anak mo. Isang araw lamang
ang tagal namin sa inyo.

(Sgd.)74 cräläwvirtual ibrä ry

The handwritten letter received by George on September 9,

1994, third letter for brevity, reads:

Para sayo Mr. & Mrs. Lim,

Mr. Lim, gusto ko lang ipaabot sayo ang maikli kong kataga. Unang-
una, ayaw namin na mga asong militar na makialam. Pangalawa,
ayaw namin sa grupo na idamay ang tao na walang-alam.
Alalahanin mo mabuti lahat ng mga kataga na iniwan ko sayo, Mr.
Lim. Ang taong dinampot ng militar sa purok islam na si Ronie, ang
taong yan walang conection (sic) sa grupo, sa madaling usapan, Mr.
Lim, alalahanin mo ang anak mo sa oras na tatlong araw na taong
yan hindi makalabas. Ang isipin mo ang anak mo hindi rin
makalabas hanggat sa mabulok sa lupa (maliwanag).

(Sign)

Palatandaan

MUBARAK II - 275 cräläwvirtua lib räry

As gleaned from the three letters, there was no demand for ransom
in exchange for George and Christophers liberty. While there is a
demand for ransom of P3,000,000 in the second letter, and a
demand for the release of Ronie Puntuan within three days in
the third letter, the said demands are in consideration of
Christophers release from custody, and not that of George.
Even then, the prosecution failed to adduce evidence that
the second letter demanding ransom in the amount of P3,000,000
for the release of Christopher actually came from the appellant and
his co-conspirators. It bears stressing that in the first letter, the
kidnappers made it clear to the couple that only those
communications, whether by letter or by telephone, bearing the
name MR. MUBARAK II or 2 came from them:

Note

Palatandaan na galing sa aming hakbang ay ito

MR. MUBARAK II or 2

Sulat man o telephone76 cräläwvirtua lib räry

The second letter received by George was signed by an

unidentified person. It was not stated that the letter came from
MUBARAK II-2. That the second letter could not have come from
the appellant and his cohorts is buttressed by the fact that the third
letter, which came from MUBARAK II-2, does not even mention any
demand for ransom in the amount of P3,000,000 for Christophers
release.

The Court can only surmise, but it is possible that the signatory and
sender of the second letter could have been acting independently
of the appellant and his co-conspirators in order to profit from the
kidnapping. It bears stressing that the kidnapping of Christopher
and George was already known when the appellant was arrested on
September 4, 1994, and the crime had already been reported to the
police authorities. Persons other than the co-conspirators of the
appellant could have written the letter.

Since there is no evidence that the signatory and sender of

the second letter is a co-conspirator of the appellant, the latter is
not bound by the said letter, conformably to Section 28, Rule 130 of
the Revised Rules of Evidence which reads:
Sec. 28. Admission by third party. The rights of a party cannot be
prejudiced by an act, declaration, or omission of another, except as
hereinafter provided.

Even if it is assumed for the nonce that the second letter came
from a co-conspirator, the same is not binding on the appellant,
absent evidence aliunde that he knew of and concurred with the
said ransom demand. It bears stressing that when George received
the second letter on September 6, 1994, the appellant had already
been arrested and detained. The conspiracy forged by the appellant
and his cohorts on or before September 4, 1994 had already
ceased, when on the said date, the appellant was arrested by the
policemen and detained.77 cräläwvirt uali brä ry

Neither is the third letter admissible in evidence against the

appellant to prove that he conspired with others to demand the
release of Ronie Puntuan in consideration for Christophers freedom.
The appellant and his cohorts could not have planned to demand
ransom for the release of Ronie Puntuan as early as September 4,
1994, the date of the kidnapping: Ronie had not yet been arrested
on this date. The appellant was arrested first, and Ronies detention
was only to follow. Furthermore, the third letter was sent to
George on September 9, 1994. At that point, the appellant had
already been arrested by the policemen, and was already in jail.
There is no evidence that while in jail, the appellant had knowledge
of and concurred with the said ransom demand. It may be
reasonably inferred that the appellants co-conspirators could have
decided to demand Ronie Puntuans release as a consideration for
Christophers liberty, while the appellant was already languishing in
jail. The said demand for ransom was a new and independent
project of the appellants co-conspirators, growing out of their own
malice, without any a priori knowledge on the part of the appellant
or his post facto concurrence therewith. Indeed, the records show
that on September 9, 1994, the very day the co-conspirators sent
the third letter to George, Ronie Puntuan through counsel Atty.
Jose Jerry L. Fulgar, also the counsel for the appellant, filed a
motion with the MTC, praying that he be detained at the General
Santos City Jail:
WHEREFORE, premises considered, it is most respectfully prayed
that an order be please issued directing that accused Ronie Puntuan
be please detained at General Santos City Jail with the instruction
that the said accused be separated from his co-accused as desired
by the Police Officers.78cräläwvirtua lib räry

That the appellant plotted with his co-conspirators to demand the

release of Ronie Puntuan as a condition for Christophers liberty is
too far-fetched, considering that Ronie and the appellant had the
same lawyer. Ronie Puntuan himself, through his and the appellants
counsel, prayed to the court that he be transferred from Camp
Fermin Lira Barracks to the General Santos City Jail.

The appellant is also guilty

of slight illegal detention of
George under Article 268
of the Revised Penal Code.

Aside from convicting the appellant of kidnapping Christopher, the

trial court also convicted him of kidnapping George under Article
267 of the Revised Penal Code. But the Office of the Solicitor
General contends that the appellant is guilty of another felony:
slight illegal detention under Article 268 of the Revised Penal Code,
because none of the circumstances enumerated in Article 267 of the
Revised Penal Code is present in the kidnapping and detention of
George. The prosecution may have failed to prove that the appellant
and his co-conspirators intended to extort ransom for Georges
release; however, as a matter of substantive law, the appellant may
be held guilty of two separate crimes, although he and his co-
conspirators kidnapped George and Christopher on the same
occasion and from the same situs. As a matter of procedural law,
the appellant may be convicted of slight illegal detention under the
Information for kidnapping for ransom as the former is necessarily
included in the latter crime.

The Court agrees with the Office of the Solicitor General. The
appellant is guilty of slight illegal detention under Article 268 of the
Revised Penal Code which reads:
Art. 268. Slight illegal detention. The penalty of reclusion
temporal shall be imposed upon any private individual who shall
commit the crimes described in the next preceding article without
the attendance of any of the circumstances enumerated therein.

The same penalty shall be incurred by anyone who shall furnish the
place for the perpetration of the crime.

If the offender shall voluntarily release the person so kidnapped or

detained within three days from the commencement of the
detention, without having attained the purpose intended, and before
the institution of criminal proceedings against him, the penalty shall
be prision mayor in its minimum and medium periods and a fine not
exceeding seven hundred pesos. (As amended by Republic Act No.
18).

While the epigraph or title of the article mentions only slight illegal
detention, kidnapping committed in connection with the lower
offense of slight illegal detention is also covered by the article.79

The felony has the following essential elements:

1. That the offender is a private individual.

2. That he kidnaps or detains another, or in any other

manner deprives him of his liberty.

3. That the act of kidnapping or detention is illegal.

4. That the crime is committed without the attendance of any of the

circumstances enumerated in Art. 267.80 cräläwvirtua lib räry

The crime of slight illegal detention is consummated upon the

occurrence of all the elements thereof. A day, in the last paragraph
of Article 268 of the Revised Penal Code, should be understood as
twenty-four hours, to be counted from the deprivation of the liberty
of the victim until the cessation thereof. As Cuello Calon put it: El
plazo de los tres dias de veinte cuatro horas y desde el momento de
la privacion de libertad si en que esta cesare.81 The rescue or
escape of the victim within three days from his kidnapping and
detention is not an exempting circumstance. The voluntary release
by the offender of the victim within three days from his detention,
without the offender having attained his purpose and before the
institution of criminal proceedings against him for slight illegal
detention, is not an exempting circumstance; it merely serves to
reduce the penalty to prision mayor in its maximum and medium
periods and a fine not exceeding P700.

In this case, the appellant is a private individual. George had been

kidnapped and detained illegally by the appellant and his cohorts,
but only for less than a day. George regained his freedom after the
appellant had been arrested at the intersection of the national
highway and Espina Road. There is no evidence that the appellant
and his cohorts kidnapped George for the purpose of extorting
ransom for his release. There is likewise no evidence that they
inflicted any serious physical injuries on George, or simulated public
authority, or threatened to kill him. Furthermore, there is no
evidence that the appellant and his cohorts intended to detain the
victim for more than three days.

Although the appellant and his co-conspirators kidnapped George

and Christopher on the same occasion and from the same situs, the
appellant is guilty of two separate crimes: kidnapping under Article
267 of the Revised Penal Code, and slight illegal detention under
Article 268 of the Revised Penal Code. The appellant and his co-
conspirators were animated by two sets of separate criminal intents
and criminal resolutions in kidnapping and illegally detaining the two
victims. The criminal intent in kidnapping Christopher was separate
from and independent of the criminal intent and resolution in
kidnapping and detaining George for less than three days. In the
mind and conscience of the appellant, he had committed two
separate felonies; hence, should be meted two separate penalties
for the said crimes: one for kidnapping under Article 267 of the
Revised Penal Code and another for slight illegal detention under
Article 268 of the same code.82 The felony of slight illegal detention
is necessarily included in the crime of kidnapping for ransom; thus,
the appellant may be convicted of the former crime under an
Information for kidnapping for ransom.83
 PENALTIES FOR THE CRIMES

COMMITTED BY THE APPELLANT

The crimes committed by the appellant were aggravated by

dwelling,84 the victims having been kidnapped in their house; by the
use of motor vehicle,85 the victims having been transported by the
appellant from their house with the use of Georges car; and by a
band, the crime having been committed by the appellant and three
co-conspirators.86 However, the Court cannot consider these
aggravating circumstances in determining the proper penalties for
the said crimes, because the same were not alleged in the
Information as mandated by Sections 8 and 9, Rule 110 of the
Revised Rules of Criminal Procedure.87 Although the said rules took
effect after the commission of the crimes by the appellant, the same
is favorable to the appellant; hence, should be applied
retroactively.88cräläwvirt uali brä ry

The appellant is not entitled to the privileged mitigating

circumstance under the second paragraph of Article 268 of the
Revised Penal Code89 because he did not voluntarily release George
within three days from the kidnapping. George was recovered by
the policemen at the intersection of the national highway and Espina
Road.

The prescribed penalty for kidnapping under Article 267 of the

Revised Penal Code as amended by Rep. Act No. 7659 is reclusion
perpetua to death. There being no aggravating circumstance or
modifying circumstance in the commission of the crime, the proper
penalty for the said crime is reclusion perpetua, conformably to
Article 63 of the Revised Penal Code. The prescribed penalty for
slight illegal detention is reclusion temporal in its full period, with a
range of twelve years and one day to twenty years. To determine
the minimum of the indeterminate penalty, the penalty shall be
reduced by one degree, prision mayor, which has a range of six
years and one day to twelve years. The minimum of the
indeterminate penalty shall be taken from the full range of the
penalty at the discretion of the Court. The maximum of the
indeterminate penalty shall be taken from the medium period
of reclusion temporal, conformably to Article 64, paragraph 1 of the
Revised Penal Code. Hence, the appellant shall suffer an
indeterminate penalty of nine years and four months of prision
mayor in its medium period as minimum, to sixteen years and five
months of reclusion temporal in its medium period as maximum.

CIVIL LIABILITIES OF THE APPELLANT

Although the prosecution adduced testimonial evidence that the

appellant and his co-conspirators ransacked the bedroom of the
victims and took cash and valuables, the prosecution nevertheless
failed to adduce any documentary evidence to prove the amount of
the said cash and the value of the jewelry. Hence, Spouses George
and Desiree Lim are not entitled to actual damages.

Under Article 2219, paragraph 5 of the New Civil Code, moral

damages may be recovered. In this case, the prosecution adduced
testimonial evidence that for the crimes committed by the appellant
and his co-conspirators, Spouses George and Desiree suffered
mental anguish, fright and serious anxiety caused by the kidnapping
of George and their son Christopher. Considering the factual milieu
in this case, the Court believes that the said spouses are entitled to
moral damages in the amount of P100,000 for the kidnapping of
Christopher, and the amount of P50,000 for the illegal detention of
George. The appellant is also liable to the spouses for exemplary
damages in the total amount of P50,000 for the two crimes
conformably with current jurisprudence.90 cräläwvirtua lib räry

IN LIGHT OF ALL THE FOREGOING, the Decision dated

September 27, 1997 of the Regional Trial Court of General Santos
City, Branch 35, is AFFIRMED WITH MODIFICATIONS. Appellant
Michael Pagalasan alias Mike is found guilty of kidnapping under
Article 267, paragraph 4 of the Revised Penal Code and there being
no modifying circumstances in the commission of the crime is
hereby sentenced to suffer the penalty of reclusion perpetua.
Appellant Michael Pagalasan alias Mike is found guilty beyond
reasonable doubt of the crime of slight illegal detention under
Article 268 of the Revised Penal Code and there being no modifying
circumstances in the commission of the crime is hereby sentenced
to suffer an indeterminate penalty of from nine years and four
months of prision mayor in its medium period as minimum to
sixteen years and five months of reclusion temporal in its medium
period as maximum. The said appellant is ordered to pay to
Spouses George and Desiree Lim the total amount of P150,000 as
moral damages; and P50,000 as exemplary damages in the two
cases.

Costs de oficio.

SO ORDERED.
 ARTICLE 65
Article 65. Rule in cases in which the penalty is not composed of three periods. - In cases in which
the penalty prescribed by law is not composed of three periods, the courts shall apply the rules
contained in the foregoing articles, dividing into three equal portions of time included in the penalty
prescribed, and forming one period of each of the three portions.

G.R. No. 132547 September 20, 2000

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
SPO1 ERNESTO ULEP, accused-appellant.

DECISION

BELLOSILLO, J.:

In the aftermath of an incident where a certain Buenaventura Wapili1 went berserk at Mundog
Subdivision, Poblacion Kidapawan, Cotabato, in the early morning of 22 December 1995, Police
Officer Ernesto Ulep was found guilty of murder and sentenced to death by the trial court for killing
Wapili. Ulep was also ordered to indemnify the heirs of the victim in the amount of ₱50,000.00 and to
pay the costs.2

The evidence shows that at around two o' clock in the morning of 22 December 1995 Buenaventura
Wapili was having a high fever and was heard talking insensibly to himself in his room. His brother-
in-law, Dario Leydan, convinced him to come out of his room and talk to him, but Wapili told Leydan
that he could not really understand himself. After a while, Wapili went back to his room and turned
off the lights. Moments later, the lights went on again and Leydan heard a disturbance inside the
room, as if Wapili was smashing the furniture.3 Unable to pacify Wapili, Leydan called Pastor Bonid of
the Alliance Church of Kidapawan to help him "pray over" Wapili, but they could not enter the latter's
room as he became wild and violent. Suddenly, Wapili bolted out of his room naked and chased
Leydan. Thereafter, Leydan with the aid of two (2) of his neighbors attempted to tie Wapili with a
rope but was unsuccessful as Wapili was much bigger in built and stronger than anyone of
them.4 Wapili, who appeared to have completely gone crazy, kept on running without any particular
direction.

Thus, Leydan went to the house of policewoman Norma Plando, a neighbor, and asked for
assistance. As Wapili passed by the house of Plando, he banged Plando's vehicle parked outside.
Using a hand-held radio, Plando then contacted SPO1 Ernesto Ulep, SPO1 Edilberto Espadera and
SPO2 Crispin Pillo, all members of the PNP assigned to secure the premises of the nearby Roman
Catholic Church of Kidapawan.5

At around four o'clock in the morning of the same day, SPO1 Ulep together with SPO1 Espadera
and SPO2 Pillo arrived at the scene on board an Anfra police service jeep. The three (3) police
officers, all armed with M-16 rifles, alighted from the jeep when they saw the naked Wapili
approaching them. The kind of weapon Wapili was armed with is disputed. The police claimed that
he was armed with a bolo and a rattan stool, while Wapili's relatives and neighbors said he had no
bolo, but only a rattan stool.

SPO1 Ulep fired a warning shot in the air and told Wapili to put down his weapons or they would
shoot him. But Wapili retorted "pusila!" ("fire!") and continued advancing towards the police officers.
When Wapili was only about two (2) to three (3) meters away from them, SPO1 Ulep shot the victim
with his M-16 rifle, hitting him in various parts of his body. As the victim slumped to the ground,
SPO1 Ulep came closer and pumped another bullet into his head and literally blew his brains out.6

The post mortem examination of the body conducted by Dr. Roberto A. Omandac, Municipal Health
Officer of Kidapawan, showed that Wapili sustained five (5) gunshot wounds: one (1) on the right
portion of the head, one (1) on the right cheek, one (1) on the abdomen and two (2) on the right
thigh: SHEENT - gunshot wound on the right parietal area with fractures of the right temporoparietal
bones with evisceration of brain tissues, right zygomatic bone and right mandible, lateral aspect;
CHEST AND BACK - with powder burns on the right posterior chest; ABDOMEN - gunshot wound
on the right upper quadrant measuring 0.5 cm. in diameter (point of entry) with multiple powder
burns around the wound and on the right lumbar area (point of exit). Gunshot wound on the
suprapubic area (point of entry); EXTREMETIES - with gunshot wounds on the right thigh, upper
third, anterior aspect measuring 0.5 cm. in diameter with powder burns (point of entry) and right
buttocks measuring 0.5 cm. in diameter (point of exit); gunshot wound on the right thigh, upper third,
posterolateral aspect; CAUSE OF DEATH - multiple gunshot wounds.7

Dr. Omandac concluded that the shots were fired at close range, perhaps within twenty-four (24)
inches, judging from the powder burns found around some of the wounds in the body of the
victim,8 and that the wound in the head, which caused the victim's instantaneous death, was inflicted
while "the victim was in a lying position."9

The Office of the Ombudsman for the Military filed an Information for murder against SPO1
Ulep. The accused pleaded not guilty to the charge on arraignment, and insisted during the trial that
1âwphi1

he acted in self-defense. However, on 28 October 1997, the trial court rendered judgment convicting
the accused of murder and sentencing him to death -

The means employed by the accused to prevent or repel the alleged aggression is not reasonable
because the victim, Buenaventura Wapili, was already on the ground, therefore, there was no
necessity for the accused to pump another shot on the back portion of the victim's head. Clearly the
gravity of the wounds sustained by the victim belies the pretension of the accused that he acted in
self-defense. It indicates his determined effort to kill the victim. It is established that accused (sic)
was already in the ground that would no longer imperil the accused's life. The most logical option
open to the accused was to inflict on the victim such injury that would prevent the victim from further
harming him. The court is not persuaded by the accused's version because if it is true that the victim
attacked him and his life was endangered - yet his two (2) companions SPO1 Espadera and SPO2
Pillo did not do anything to help him but just witness the incident - which is unbelievable and
unnatural behavior of police officers x x x x

WHEREFORE, prescinding from the foregoing, judgment is hereby rendered finding the accused
Ernesto Ulep guilty beyond reasonable doubt of the crime of Murder, the accused is hereby
sentenced to suffer the extreme penalty of Death, to indemnify the heirs of Buenaventura Wapili the
amount of ₱50,000.00 without subsidiary imprisonment in case of insolvency and to pay the costs.
Death penalty having been imposed by the trial court, the case is now before us on automatic
review. Accused-appellant prays for his acquittal mainly on the basis of his claim that the killing of
the victim was in the course of the performance of his official duty as a police officer, and in self-
defense.

Preliminarily, having admitted the killing of Wapili, accused-appellant assumed the burden of proving
legal justification therefor. He must establish clearly and convincingly how he acted in fulfillment of
his official duty and/or in complete self-defense, as claimed by him; otherwise, he must suffer all the
consequences of his malefaction. He has to rely on the quantitative and qualitative strength of his
own evidence, not on the weakness of the prosecution; for even if it were weak it could not be
disbelieved after he had admitted the killing.10

Before the justifying circumstance of fulfillment of a duty under Art. 11, par. 5, of The Revised Penal
Code may be successfully invoked, the accused must prove the presence of two (2) requisites,
namely, that he acted in the performance of a duty or in the lawful exercise of a right or an office,
and that the injury caused or the offense committed be the necessary consequence of the due
performance of duty or the lawful exercise of such right or office. The second requisite is lacking in
the instant case.

Accused-appellant and the other police officers involved originally set out to perform a legal duty: to
render police assistance, and restore peace and order at Mundog Subdivision where the victim was
then running amuck. There were two (2) stages of the incident at Mundog Subdivision. During the
first stage, the victim threatened the safety of the police officers by menacingly advancing towards
them, notwithstanding accused-appellant's previous warning shot and verbal admonition to the victim
to lay down his weapon or he would be shot. As a police officer, it is to be expected that accused-
appellant would stand his ground. Up to that point, his decision to respond with a barrage of gunfire
to halt the victim's further advance was justified under the circumstances. After all, a police officer is
not required to afford the victim the opportunity to fight back. Neither is he expected - when hard
pressed and in the heat of such an encounter at close quarters - to pause for a long moment and
reflect coolly at his peril, or to wait after each blow to determine the effects thereof.

However, while accused-appellant is to be commended for promptly responding to the call of duty
when he stopped the victim from his potentially violent conduct and aggressive behavior, he cannot
be exonerated from overdoing his duty during the second stage of the incident - when he fatally shot
the victim in the head, perhaps in his desire to take no chances, even after the latter slumped to the
ground due to multiple gunshot wounds sustained while charging at the police officers. Sound
discretion and restraint dictated that accused-appellant, a veteran policeman,11 should have ceased
firing at the victim the moment he saw the latter fall to the ground. The victim at that point no longer
posed a threat and was already incapable of mounting an aggression against the police officers.
Shooting him in the head was obviously unnecessary. As succinctly observed by the trial court -

Once he saw the victim he fired a warning shot then shot the victim hitting him on the different parts
of the body causing him to fall to the ground and in that position the accused shot the victim again
hitting the back portion of the victim's head causing the brain to scatter on the ground x x x x the
victim, Buenaventura Wapili, was already on the ground. Therefore, there was no necessity for the
accused to pump another shot on the back portion of the victim's head.

It cannot therefore be said that the fatal wound in the head of the victim was a necessary
consequence of accused-appellant's due performance of a duty or the lawful exercise of a right or
office.
Likewise, the evidence at hand does not favor his claim of self-defense. The elements in order for
self-defense to be appreciated are: (a) unlawful aggression on the part of the person injured or killed
by the accused; (b) reasonable necessity of the means employed to prevent or repel it; and, (c) lack
of sufficient provocation on the part of the person defending himself.12

The presence of unlawful aggression is a condition sine qua non. There can be no self-defense,
complete or incomplete, unless the victim has committed an unlawful aggression against the person
defending himself.13 In the present case, the records show that the victim was lying in a prone
position on the ground - bleeding from the bullet wounds he sustained, and possibly unconscious -
when accused-appellant shot him in the head. The aggression that was initially begun by the victim
already ceased when accused-appellant attacked him. From that moment, there was no longer any
danger to his life.

This Court disagrees with the conclusion of the court a quo that the killing of Wapili by accused-
appellant was attended by treachery, thus qualifying the offense to murder. We discern nothing from
the evidence that the assault was so sudden and unexpected and that accused-appellant
deliberately adopted a mode of attack intended to insure the killing of Wapili, without the victim
having the opportunity to defend himself.

On the contrary, the victim could not have been taken by surprise as he was given more than
sufficient warning by accused-appellant before he was shot, i.e., accused-appellant fired a warning
shot in the air, and specifically ordered him to lower his weapons or he would be shot. The killing of
Wapili was not sought on purpose. Accused-appellant went to the scene in pursuance of his official
duty as a police officer after having been summoned for assistance. The situation that the victim, at
the time accused-appellant shot him in the head, was prostrate on the ground is of no moment when
considering the presence of treachery. The decision to kill was made in an instant and the victim's
helpless position was merely incidental to his having been previously shot by accused-appellant in
the performance of his official duty.

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.14 Considering
the rule that treachery cannot be inferred but must be proved as fully and convincingly as the crime
itself, any doubt as to its existence must be resolved in favor of accused-appellant. Accordingly, for
failure of the prosecution to prove treachery to qualify the killing to murder, accused-appellant may
only be convicted of homicide.

Indeed, to hold him criminally liable for murder and sentence him to death under the circumstances
would certainly have the effect of demoralizing other police officers who may be called upon to
discharge official functions under similar or identical conditions. We would then have a dispirited
police force who may be half-hearted, if not totally unwilling, to perform their assigned duties for fear
that they would suffer the same fate as that of accused-appellant.

This brings us to the imposition of the proper penalty.

We find in favor of accused-appellant the incomplete justifying circumstance of fulfillment of a duty or

lawful exercise of a right. Under Art. 69 of The Revised Penal Code, "a penalty lower by one or two
degrees than that prescribed by law shall be imposed if the deed is not wholly excusable by reason
of the lack of some of the conditions required to justify the same or to exempt from criminal liability in
the several cases mentioned in Arts. 11 and 12, provided that the majority of such conditions be
present. The courts shall impose the penalty in the period which may be deemed proper, in view of
the number and nature of the conditions of exemption present or lacking."
Incomplete justification is a special or privileged mitigating circumstance, which, not only cannot be
offset by aggravating circumstances but also reduces the penalty by one or two degrees than that
prescribed by law.15 Undoubtedly, the instant case would have fallen under Art. 11, par. 5 of The
Revised Penal Code had the two (2) conditions therefor concurred which, to reiterate: first, that the
accused acted in the performance of a duty or the lawful exercise of a right or office; and second,
that the injury or offense committed be the necessary consequence of the due performance of such
duty or the lawful exercise of such right or office. But here, only the first condition was fulfilled.
Hence, Art. 69 is applicable, although its "that the majority of such conditions be present," is
immaterial since there are only two (2) conditions that may be taken into account under Art. 11, par.
5. Article 69 is obviously in favor of the accused as it provides for a penalty lower than that
prescribed by law when the crime committed is not wholly justifiable. The intention of the legislature,
obviously, is to mitigate the penalty by reason of the diminution of either freedom of action,
intelligence, or intent, or of the lesser perversity of the offender.16

We likewise credit in favor of accused-appellant the mitigating circumstance of voluntary surrender.

The police blotter of Kidapawan Municipal Police Station shows that immediately after killing Wapili,
accused-appellant reported to the police headquarters and voluntarily surrendered himself.17

Article 249 of The Revised Penal Code prescribes for the crime of homicide the penalty of reclusion
temporal, the range of which is twelve (12) years and one (1) day to twenty (20) years. There being
an incomplete justifying circumstance of fulfillment of a duty, the penalty should be one (1) degree
lower, i.e., from reclusion temporal to prision mayor, pursuant to Art. 69, in relation to Art. 61, par. 2,
and Art. 71, of the Code, to be imposed in its minimum period since accused-appellant voluntarily
surrendered to the authorities and there was no aggravating circumstance to offset this mitigating
circumstance. Applying the Indeterminate Sentence Law, the maximum of the penalty shall be taken
from the minimum period of prision mayor, the range of which is six (6) years and one (1) day to
eight (8) years, while the minimum 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.

The right to kill an offender is not absolute, and may be used only as a last resort, and under
circumstances indicating that the offender cannot otherwise be taken without bloodshed. The law
does not clothe police officers with authority to arbitrarily judge the necessity to kill.18 It may be true
that police officers sometimes find themselves in a dilemma when pressured by a situation where an
immediate and decisive, but legal, action is needed. However, it must be stressed that the judgment
and discretion of police officers in the performance of their duties must be exercised neither
capriciously nor oppressively, but within reasonable limits. In the absence of a clear and legal
provision to the contrary, they must act in conformity with the dictates of a sound discretion, and
within the spirit and purpose of the law.19 We cannot countenance trigger-happy law enforcement
officers who indiscriminately employ force and violence upon the persons they are apprehending.
They must always bear in mind that although they are dealing with criminal elements against whom
society must be protected, these criminals are also human beings with human rights.

WHEREFORE, the appealed Judgment is MODIFIED. Accused-appellant SPO1 ERNESTO ULEP is

found guilty of HOMICIDE, instead of Murder, and is sentenced to an indeterminate prison term of
four (4) years, two (2) months and ten (10) days of prision correccional medium as minimum, to six
(6) years, four (4) months and twenty (20) days of prision mayor minimum as maximum. He is further
ordered to indemnify the heirs of Buenaventura Wapili in the amount of ₱50,000.00, and to pay the
costs.

SO ORDERED.
G.R. Nos. L-33466-67 April 20, 1983

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
MAMERTO NARVAEZ, defendant-appellant.

The Solicitor General for plaintiff-appellee.

Gonzalo B. Callanta (counsel de oficio) for defendant-appellant.

MAKASIAR, J.:

This is an appeal from the decision of the Court of First Instance of South Cotabato, Branch I, in
Criminal Cases Nos. 1815 and 1816 for murder which, after a joint trial, resulted in the conviction of
the accused in a decision rendered on September 8, 1970, with the following pronouncement:

Thus, we have a crime of MURDER qualified by treachery with the aggravating

circumstance of evident premeditation offset by the mitigating circumstance of
voluntary surrender. The proper penalty imposable, therefore, is RECLUSION
PERPETUA (Arts. 248 and 64, Revised Penal Code).

Accordingly, finding Mamerto Narvaez guilty beyond reasonable doubt of the crime of
murder,

(a) In Criminal Case No. 1815, he is hereby sentenced to RECLUSION PERPETUA,

to indemnify the heirs of the deceased Davis Q. Fleischer in the sum of P 12,000.00
as compensatory damages, P 10,000.00 as moral damages, P 2,000.00 as
attorney's fees, the offended party having been represented by a private prosecutor,
and to pay the costs;

(b) In Criminal Case No. 1816, he is hereby sentenced to RECLUSION PERPETUA,

to indemnify the heirs of the deceased Flaviano Rubia in the sum of P12,000.00 as
compensatory damages, P10,000.00 as moral damages, P2,000.00 as attorney's
fees, the offended party having been represent by a private prosecutor, and to pay
the costs (p. 48, rec.).

The facts are summarized in the People's brief, as follows:

At about 2:30 in the afternoon of August 22, 1968, Graciano Juan, Jesus Verano and
Cesar Ibanez together with the two deceased Davis Fleischer and Flaviano Rubia,
were fencing the land of George Fleischer, father of deceased Davis Fleischer. The
place was in the boundary of the highway and the hacienda owned by George
Fleischer. This is located in the municipality of Maitum, South Cotabato. At the place
of the fencing is the house and rice drier of appellant Mamerto Narvaez (pp. 179-182,
t.s.n., Pieza II). At that time, appellant was taking his rest, but when he heard that the
walls of his house were being chiselled, he arose and there he saw the fencing going
on. If the fencing would go on, appellant would be prevented from getting into his
house and the bodega of his ricemill. So he addressed the group, saying 'Pare, if
possible you stop destroying my house and if possible we will talk it over what is
 good,' addressing the deceased Rubia, who is appellant's compadre. The deceased
Fleischer, however, answered: 'No, gademit, proceed, go ahead.' Appellant
apparently lost his equilibrium and he got his gun and shot Fleischer, hitting him. As
Fleischer fell down, Rubia ran towards the jeep, and knowing there is a gun on the
jeep, appellant fired at Rubia, likewise hitting him (pp. 127-133, t.s.n., Defense
transcript). Both Fleischer and Rubia died as a result of the shotting' (pp. 9-14, t.s.n.,
Pieza I, pp. 8-9, Appellant's Brief, p.161, rec.).

It appears, however, that this incident is intertwined with the long drawn out legal battle between the
Fleischer and Co., Inc. of which deceased Fleischer was the secretary-treasurer and deceased
Rubia the assistant manager, on the one hand, and the land settlers of Cotabato, among whom was
appellant.

From the available records of the related cases which had been brought to the Court of Appeals
(CA-G.R. Nos. 28858-R and 50583-R) and to this Court on certiorari (G.R. No. L-26757 and L-
45504), WE take judicial notice of the following antecedent facts:

Appellant was among those persons from northern and central Luzon who went to Mindanao in 1937
and settled in Maitum, a former sitio of Kiamba and now a separate municipality of South Cotabato.
He established his residence therein, built his house, cultivated the area, and was among those who
petitioned then President Manuel L. Quezon to order the subdivision of the defunct Celebes
Plantation and nearby Kalaong Plantation totalling about 2,000 hectares, for distribution among the
settlers.

Shortly thereafter, Fleischer and Company, headed by George W. Fleischer, an American landowner
in Negros Oriental, filed sales application No. 21983 on June 3, 1937 over the same area formerly
leased and later abandoned by Celebes Plantation Company, covering 1,017.2234 hectares.

Meanwhile, the subdivision was ordered and a public land surveyor did the actual survey in 1941 but
the survey report was not submitted until 1946 because of the outbreak of the second world war.
According to the survey, only 300 hectares Identified as Lots Nos. 22, 26 and 38, Ps. 176 Kiamba,
were set aside for Sales Application No. 21983, while the rest were subdivided into sublots of 5 to 6
hectares each to be distributed among the settlers (pp. 32-33, G.R. No. L-45504).

The 300 hectares set aside for the sales application of Fleischer and Company was declared open
for disposition, appraised and advertised for public auction. At the public auction held in Manila on
August 14, 1948, Fleischer and Company was the only bidder for P6,000.00. But because of
protests from the settlers the corresponding award in its favor was held in abeyance, while an
investigator was sent by the Director of Lands to Kiamba in the person of Atty. Jose T. Gozon Atty.
Gozon came back after ten days with an amicable settlement signed by the representative of the
settlers. This amicable settlement was later repudiated by the settlers, but the Director of Lands,
acting upon the report of Atty. Gozon, approved the same and ordered the formal award of the land
in question to Fleischer and Company. The settlers appealed to the Secretary of Agriculture and
Natural Resources, who, however, affirmed the decision in favor of the company.

On May 29, 1950, the settlers filed Civil Case No. 240 in the Court of First Instance of Cotabato
which then consisted only of one sala, for the purpose of annulling the order of the Secretary of
Agriculture and Natural Resources which affirmed the order of the Director of Lands awarding the
contested land to the company. The settlers as plaintiffs, lost that case in view of the amicable
settlement which they had repudiated as resulting from threats and intimidation, deceit,
misrepresentation and fraudulent machination on the part of the company. They appealed to the
Court of Appeals (CA-G.R. No. 28858-R) which likewise affirmed on August 16, 1965 the decision of
the Court of First Instance in favor of the company.

This resulted in the ouster of the settlers by an order of the Court of First Instance dated September
24, 1966, from the land which they had been occupying for about 30 years. Among those ejected
was the appellant who, to avoid trouble, voluntarily dismantled his house, built in 1947 at a cost of
around P20,000.00, and transferred to his other house which he built in 1962 or 1963 near the
highway. The second house is not far from the site of the dismantled house. Its ground floor has a
store operated by Mrs. June Talens who was renting a portion thereof. He also transferred his store
from his former residence to the house near the highway. Aside from the store, he also had a rice
mill located about 15 meters east of the house and a concrete pavement between the rice mill and
the house, which is used for drying grains and copra.

On November 14, 1966, appellant was among the settlers on whose behalf Jose V. Gamboa and
other leaders filed Civil Case No. 755 in the Court of First Instance of Cotabato, Branch I. to obtain
an injunction or annulment of the order of award with prayer for preliminary injunction. During the
pendency of this case, appellant on February 21, 1967 entered into a contract of lease with the
company whereby he agreed to lease an area of approximately 100 to 140 square meters of Lot No.
38 from the company (Exh. 9, p. 1, Folder of Exhibits for Defense) for a consideration of P16.00
monthly. According to him, he signed the contract although the ownership of the land was still
uncertain, in order to avoid trouble, until the question of ownership could be decided. He never paid
the agreed rental, although he alleges that the milling job they did for Rubia was considered
payment. On June 25, 1968, deceased Fleischer wrote him a letter with the following tenor:

You have not paid six months rental to Fleischers & Co., Inc. for that portion of land
in which your house and ricemill are located as per agreement executed on February
21, 1967. You have not paid as as even after repeated attempts of collection made
by Mr. Flaviano Rubia and myself.

In view of the obvious fact that you do not comply with the agreement, I have no
alternative but to terminate our agreement on this date.

I am giving you six months to remove your house, ricemill, bodega, and water pitcher
pumps from the land of Fleischers & Co., Inc. This six- month period shall expire on
December 31, 1966.

In the event the above constructions have not been removed within the six- month
period, the company shall cause their immediate demolition (Exhibit 10, p. 2, supra).

On August 21, 1968, both deceased, together with their laborers, commenced fencing Lot 38 by
putting bamboo posts along the property line parallel to the highway. Some posts were planted right
on the concrete drier of appellant, thereby cutting diagonally across its center (pp. 227-228, t.s.n.,
Vol. 2), with the last post just adjacent to appellant's house (p. 231, t.s.n., supra). The fence, when
finished, would have the effect of shutting off the accessibility to appellant's house and rice mill from
the highway, since the door of the same opens to the Fleischers' side. The fencing continued on that
fateful day of August 22, 1968, with the installation of four strands of barbed wire to the posts.

At about 2:30 p.m. on the said day, appellant who was taking a nap after working on his farm all
morning, was awakened by some noise as if the wall of his house was being chiselled. Getting up
and looking out of the window, he found that one of the laborers of Fleischer was indeed chiselling
the wall of his house with a crowbar (p. 129, t.s.n., Vol. 6), while deceased Rubia was nailing the
barbed wire and deceased Fleischer was commanding his laborers. The jeep used by the deceased
was parked on the highway. The rest of the incident is narrated in the People's Brief as above-
quoted. Appellant surrendered to the police thereafter, bringing with him shotgun No. 1119576 and
claiming he shot two persons (Exh. Pp. 31, Defense Exhibits).

Appellant now questions the propriety of his conviction, assigning the following errors:

First Assignment of Error: That the lower court erred in convicting defendant-
appellant despite the fact that he acted in defense of his person; and

Second Assignment of Error: That the court a quo also erred in convicting defendant-
appellant although he acted in defense of his rights (p. 20 of Appellant's Brief, p. 145,
rec.).

The act of killing of the two deceased by appellant is not disputed. Appellant admitted having shot
them from the window of his house with the shotgun which he surrendered to the police authorities.
He claims, however, that he did so in defense of his person and of his rights, and therefore he
should be exempt from criminal liability.

Defense of one's person or rights is treated as a justifying circumstance under Art. 11, par. 1 of the
Revised Penal Code, but in order for it to be appreciated, the following requisites must occur:

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 (Art.
11, par. 1, Revised Penal Code, as amended).

The aggression referred to by appellant is the angry utterance by deceased Fleischer of the
following words: "Hindi, sigue, gademit, avante", in answer to his request addressed to
his compadre, the deceased Rubia, when he said, "Pare, hinto mona ninyo at pag-usapan natin
kung ano ang mabuti" (pp. 227-229, t.s.n., Vol. 6). This was in reaction to his having been awakened
to see the wall of his house being chiselled. The verbal exchange took place while the two deceased
were on the ground doing the fencing and the appellant was up in his house looking out of his
window (pp. 225-227, supra). According to appellant, Fleischer's remarks caused this reaction in
him: "As if, I lost my senses and unknowingly I took the gun on the bed and unknowingly also I shot
Mr. Fleischer, without realizing it, I shot Mr. Fleischer" (p. 132, supra). As for the shooting of Rubia,
appellant testified:

When I shot Davis Fleischer, Flaviano Rubia was nailing and upon hearing the shot,
Mr. Rubia looked at Mr. Fleischer and when Mr. Fleischer fell down, Mr. Rubia ran
towards the jeep and knowing that there was a firearm in the jeep and thinking that if
he will take that firearm he will kill me, I shot at him (p. 132, supra, Emphasis
supplied).

The foregoing statements of appellant were never controverted by the prosecution. They claim,
however, that the deceased were in lawful exercise of their rights of ownership over the land in
question, when they did the fencing that sealed off appellant's access to the highway.

A review of the circumstances prior to the shooting as borne by the evidence reveals that five
persons, consisting of the deceased and their three laborers, were doing the fencing and chiselling
of the walls of appellant's house. The fence they were putting up was made of bamboo posts to
which were being nailed strands of barbed wire in several layers. Obviously, they were using tools
which could be lethal weapons, such as nail and hammer, bolo or bamboo cutter, pliers, crowbar,
and other necessary gadgets. Besides, it was not disputed that the jeep which they used in going to
the place was parked just a few steps away, and in it there was a gun leaning near the steering
wheel. When the appellant woke up to the sound of the chiselling on his walls, his first reaction was
to look out of the window. Then he saw the damage being done to his house, compounded by the
fact that his house and rice mill will be shut off from the highway by the fence once it is finished. He
therefore appealed to his compadre, the deceased Rubia, to stop what they were doing and to talk
things over with him. But deceased Fleischer answered angrily with 'gademit' and directed his men
to proceed with what they were doing.

The actuation of deceased Fleischer in angrily ordering the continuance of the fencing would have
resulted in the further chiselling of the walls of appellant's house as well as the closure of the access
to and from his house and rice mill-which were not only imminent but were actually in progress.
There is no question, therefore, that there was aggression on the part of the victims: Fleischer was
ordering, and Rubia was actually participating in the fencing. This was indeed aggression, not on the
person of appellant, but on his property rights.

The question is, was the aggression unlawful or lawful? Did the victims have a right to fence off the
contested property, to destroy appellant's house and to shut off his ingress and egress to his
residence and the highway?

Article 30 of the Civil Code recognizes the right of every owner to enclose or fence his land or
tenements.

However, at the time of the incident on August 22, 1968, Civil Case no. 755 for annulment of the
order of award to Fleischer and Company was still pending in the Court of First Instance of
Cotabato. The parties could not have known that the case would be dismissed over a year after the
incident on August 22, 1968, as it was dismissed on January 23, 1970 on ground of res judicata, in
view of the dismissal in 1965 (by the Court of Appeals) of Civil Case No. 240 filed in 1950 for the
annulment of the award to the company, between the same parties, which the company won by
virtue of the compromise agreement in spite of the subsequent repudiation by the settlers of said
compromise agreement; and that such 1970 dismissal also carried the dismissal of the supplemental
petition filed by the Republic of the Philippines on November 28, 1968 to annul the sales patent and
to cancel the corresponding certificate of title issued to the company, on the ground that the Director
of Lands had no authority to conduct the sale due to his failure to comply with the mandatory
requirements for publication. The dismissal of the government's supplemental petition was premised
on the ground that after its filing on November 28, 1968, nothing more was done by the petitioner
Republic of the Philippines except to adopt all the evidence and arguments of plaintiffs with whom it
joined as parties-plaintiffs.

Hence, it is reasonable to believe that appellant was indeed hoping for a favorable judgment in Civil
Case No. 755 filed on November 14, 1966 and his execution of the contract of lease on February 21,
1967 was just to avoid trouble. This was explained by him during cross-examination on January 21,
1970, thus:

It happened this way: we talked it over with my Mrs. that we better rent the place
because even though we do not know who really owns this portion to avoid trouble.
To avoid trouble we better pay while waiting for the case because at that time, it was
not known who is the right owner of the place. So we decided until things will clear up
 and determine who is really the owner, we decided to pay rentals (p. 169, t.s.n.,
Vol.6).

In any case, Fleischer had given him up to December 31, 1968 (Exh.10, p. 2, Defense Exhibits)
within which to vacate the land. He should have allowed appellant the peaceful enjoyment of his
properties up to that time, instead of chiselling the walls of his house and closing appellant's
entrance and exit to the highway.

The following provisions of the Civil Code of the Philippines are in point:

Art. 536. In no case may possession be acquired through force or intimidation as

long as there is a possessor who objects thereto. He who believes that he has an
action or a right to deprive another of the holding of a thing must invoke the aid of the
competent court, if the holder should refuse to deliver the thing.

Art. 539. Every possessor has a right to be respected in his possession; and should
he be disturbed therein he shall be protected in or restored to said possession by the
means established by the laws and the Rules of Court (Articles 536 and 539, Civil
Code of the Philippines).

Conformably to the foregoing provisions, the deceased had no right to destroy or cause damage to
appellant's house, nor to close his accessibility to the highway while he was pleading with them to
stop and talk things over with him. The assault on appellant's property, therefore, amounts to
unlawful aggression as contemplated by law.

Illegal aggression is equivalent to assault or at least threatened assault of immediate

and imminent kind (People vs. Encomiendas, 46 SCRA 522).

In the case at bar, there was an actual physical invasion of appellant's property which he had the
right to resist, pursuant to Art. 429 of the Civil Code of the Philippines which provides:

Art. 429. The owner or lawful possessor of a thing has the right to exclude any
person from the enjoyment and disposal thereof. For this purpose, he may use such
force as may be reasonably necessary to repel or prevent an actual or threatened
unlawful physical invasion or usurpation of his property (Emphasis supplied).

The reasonableness of the resistance is also a requirement of the justifying circumstance of self-
defense or defense of one's rights under paragraph 1 of Article 11, Revised Penal Code. When the
appellant fired his shotgun from his window, killing his two victims, his resistance was
disproportionate to the attack.

WE find, however, that the third element of defense of property is present, i.e., lack of sufficient
provocation on the part of appellant who was defending his property. As a matter of fact, there was
no provocation at all on his part, since he was asleep at first and was only awakened by the noise
produced by the victims and their laborers. His plea for the deceased and their men to stop and talk
things over with him was no provocation at all.

Be that as it may, appellant's act in killing the deceased was not justifiable, since not all the elements
for justification are present. He should therefore be held responsible for the death of his victims, but
he could be credited with the special mitigating circumstance of incomplete defense, pursuant to
paragraph 6, Article 13 of the Revised Penal Code.
The crime committed is homicide on two counts. The qualifying circumstance of treachery cannot be
appreciated in this case because of the presence of provocation on the part of the deceased. As WE
held earlier in People vs. Manlapaz (55 SCRA 598), the element of a sudden unprovoked attack is
therefore lacking.

Moreover, in order to appreciate alevosia, "it must clearly appear that the method of assault adopted
by the aggressor was deliberately chosen with a special view to the accomplishment of the act
without risk to the assailant from any defense that the party assailed might have made. This cannot
be said of a situation where the slayer acted instantaneously ..." (People vs. Cañete, 44 Phil. 481).

WE likewise find the aggravating (qualifying) circumstance of evident premeditation not sufficiently
established. The only evidence presented to prove this circumstance was the testimony of Crisanto
Ibañez, 37 years old, married, resident of Maitum, South Cotabato, and a laborer of Fleischer and
Company, which may be summarized as follows:

On August 20, 1968 (two days before the incident) at about 7:00 A.M., he was drying
corn near the house of Mr. and Mrs. Mamerto Narvaez at the crossing, Maitum,
South Cotabato, when the accused and his wife talked to him. Mrs. Narvaez asked
him to help them, as he was working in the hacienda. She further told him that if they
fenced their house, there is a head that will be broken. Mamerto Narvaez added
'Noy, it is better that you will tell Mr. Fleischer because there will be nobody who will
break his head but I will be the one.' He relayed this to Mr. Flaviano Rubia, but the
latter told him not to believe as they were only Idle threats designed to get him out of
the hacienda (pp. 297-303, t.s.n., Vol. 2).

This single evidence is not sufficient to warrant appreciation of the aggravating circumstance of
evident premeditation. As WE have consistently held, there must be "direct evidence of the planning
or preparation to kill the victim, .... it is not enough that premeditation be suspected or surmised, but
the criminal intent must be evidenced by notorious outward acts evincing the determination to
commit the crime" (People vs. Ordioles, 42 SCRA 238). Besides, there must be a "showing" that the
accused premeditated the killing; that the culprit clung to their (his) premeditated act; and that there
was sufficient interval between the premeditation and the execution of the crime to allow them (him)
to reflect upon the consequences of the act" (People vs. Gida, 102 SCRA 70).

Moreover, the obvious bias of witness Crisanto Ibañez, as a laborer of the deceased Davis
Fleischer, neutralizes his credibility.

Since in the case at bar, there was no direct evidence of the planning or preparation to kill the
victims nor that the accused premeditated the killing, and clung to his premeditated act, the trial
court's conclusion as to the presence of such circumstance may not be endorsed.

Evident premeditation is further negated by appellant pleading with the victims to stop the fencing
and destroying his house and to talk things over just before the shooting.

But the trial court has properly appreciated the presence of the mitigating circumstance of voluntary
surrender, it appearing that appellant surrendered to the authorities soon after the shooting.

Likewise, We find that passion and obfuscation attended the commission of the crime. The appellant
awoke to find his house being damaged and its accessibility to the highway as well as of his rice mill
bodega being closed. Not only was his house being unlawfully violated; his business was also in
danger of closing down for lack of access to the highway. These circumstances, coming so near to
the time when his first house was dismantled, thus forcing him to transfer to his only remaining
house, must have so aggravated his obfuscation that he lost momentarily all reason causing him to
reach for his shotgun and fire at the victims in defense of his rights. Considering the antecedent facts
of this case, where appellant had thirty years earlier migrated to this so-called "land of promise" with
dreams and hopes of relative prosperity and tranquility, only to find his castle crumbling at the hands
of the deceased, his dispassionate plea going unheeded-all these could be too much for any man-he
should be credited with this mitigating circumstance.

Consequently, appellant is guilty of two crimes of homicide only, the killing not being attended by any
qualifying nor aggravating circumstance, but extenuated by the privileged mitigating circumstance of
incomplete defense-in view of the presence of unlawful aggression on the part of the victims and
lack of sufficient provocation on the part of the appellant-and by two generic mitigating circumstance
of voluntary surrender and passion and obfuscation.

Article 249 of the Revised Penal Code prescribes the penalty for homicide as reclusion
temporal. Pursuant to Article 69, supra, the penalty lower by one or two degrees shall be imposed if
the deed is not wholly excusable by reason of the lack of some of the conditions required to justify
the same. Considering that the majority of the requirements for defense of property are present, the
penalty may be lowered by two degrees, i.e., to prision correccional And under paragraph 5 of Article
64, the same may further be reduced by one degree, i.e., arresto mayor, because of the presence of
two mitigating circumstances and no aggravating circumstance.

The civil liability of the appellant should be modified. In the case of Zulueta vs. Pan American World
Airways (43 SCRA 397), the award for moral damages was reduced because the plaintiff contributed
to the gravity of defendant's reaction. In the case at bar, the victims not only contributed but they
actually provoked the attack by damaging appellant's properties and business. Considering
appellant's standing in the community, being married to a municipal councilor, the victims' actuations
were apparently designed to humiliate him and destroy his reputation. The records disclose that his
wife, councilor Feliza Narvaez, was also charged in these two cases and detained without bail
despite the absence of evidence linking her to the killings. She was dropped as a defendant only
upon motion of the prosecution dated October 31, 1968. (p. 14, CFI rec. of Crim. Case No. 1816),
but acted upon on November 4, 1968 (p. 58, CFI rec. of Criminal Case No. 1815).

Moreover, these cases arose out of an inordinate desire on the part of Fleischer and Company,
despite its extensive landholdings in a Central Visayan province, to extend its accumulation of public
lands to the resettlement areas of Cotabato. Since it had the capability-financial and otherwise-to
carry out its land accumulation scheme, the lowly settlers, who uprooted their families from their
native soil in Luzon to take advantage of the government's resettlement program, but had no
sufficient means to fight the big landowners, were the ones prejudiced. Thus, the moral and material
suffering of appellant and his family deserves leniency as to his civil liability.

Furthermore, Article 39 of the Revised Penal Code requires a person convicted of prision
correccional or arrests mayor and fine who has no property with which to meet his civil liabilities to
serve a subsidiary imprisonment at the rate of one (1) day for each P 2.50. However, the
amendment introduced by Republic Act No. 5465 on April 21, 1969 made the provisions of Art. 39
applicable to fines only and not to reparation of the damage caused, indemnification of
consequential damages and costs of proceedings. Considering that Republic Act 5465 is favorable
to the accused who is not a habitual delinquent, it may be given retroactive effect pursuant to Article
22 of the Revised Penal Code.

WHEREFORE, FINDING APPELLANT GUILTY BEYOND REASONABLE DOUBT OF ONLY TWO

(2) HOMICIDES, MITIGATED BY THE PRIVILEGED EXTENUATING CIRCUMSTANCE OF
INCOMPLETE SELF-DEFENSE AS WELL AS BY TWO (2) GENERIC MITIGATING
CIRCUMSTANCES OF VOLUNTARY SURRENDER AND OBFUSCATION, WITHOUT ANY
AGGRAVATING CIRCUMSTANCE, APPELLANT IS HEREBY SENTENCED TO SUFFER AN
IMPRISONMENT OF FOUR (4) MONTHS OF ARRESTO MAYOR, TO INDEMNIFY EACH GROUP
OF HEIRS OF DAVIS FLEISCHER AND OF FLAVIANO RUBIA IN THE SUM OF FOUR
THOUSAND (P 4,000.00) PESOS, WITHOUT SUBSIDIARY IMPRISONMENT AND WITHOUT ANY
AWARD FOR MORAL DAMAGES AND ATTORNEY'S FEES.

CONSIDERING THAT APPELLANT HAS BEEN UNDER DETENTION FOR ALMOST FOURTEEN
(14) YEARS NOW SINCE HIS VOLUNTARY SURRENDER ON AUGUST 22,1968, HIS
IMMEDIATE RELEASE IS HEREBY ORDERED. NO COSTS.

SO ORDERED.
 ARTICLE 70
Art. 70. Successive service of sentence. — When the culprit has to
serve two or more penalties, he shall serve them simultaneously if the
nature of the penalties will so permit otherwise, the following rules
shall be observed:
In the imposition of the penalties, the order of their respective
severity shall be followed so that they may be executed successively
or as nearly as may be possible, should a pardon have been granted
as to the penalty or penalties first imposed, or should they have been
served out. chanrobles virtual l aw library

For the purpose of applying the provisions of the next preceding

paragraph the respective severity of the penalties shall be determined
in accordance with the following scale:
1. Death,
2. Reclusion perpetua,
3. Reclusion temporal,
4. Prision mayor,
5. Prision correccional, chan robles virtual law librar y

6. Arresto mayor,
7. Arresto menor,
8. Destierro,
9. Perpetual absolute disqualification,
10 Temporal absolute disqualification. chanrobles virtual law librar y

11. Suspension from public office, the right to vote and be voted for,
the right to follow a profession or calling, and
12. Public censure. chanrobles virtual l aw library

Notwithstanding the provisions of the rule next preceding, the

maximum duration of the convict's sentence shall not be more than
three-fold the length of time corresponding to the most severe of the
penalties imposed upon him. No other penalty to which he may be
liable shall be inflicted after the sum total of those imposed equals the
same maximum period. chanrobles virtual law librar y

Such maximum period shall in no case exceed forty years. chanrobles virtual l aw library

In applying the provisions of this rule the duration of perpetual

penalties (pena perpetua) shall be computed at thirty years. (As
amended).chanr
ARTICLE 70

G.R. Nos. 113513-14 August 23, 1995

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
JIMMY CONTE, accused-appellant.

DAVIDE, JR., J.:

A snake! That is how people call a person who bites the hand that feeds him or who commits a
grievous wrong against another to whom he owes a debt of gratitude. That is probably how Bernardo
Crisostomo would call his farm helper, accused-appellant Jimmy Conte, who allegedly raped the
wife and kidnapped and illegally detained the two children of the former.

Jimmy Conte was charged with serious illegal detention with rape in an information1 in Criminal Case
No. 9006 and with kidnapping with serious illegal detention in an information2 in Criminal Case No.
9007 which were filed on 3 October 1990 with the Regional Trial Court (RTC) of Palawan in Puerto
Princesa City. However, upon prior leave of court,3 the information in Criminal Case No. 9006 was
replaced by a complaint4 only for rape, which was signed by the offended party, Gloria Crisostomo,
and was filed on 15 February 1991. The accusatory portion of the complaint reads as follows:

That on or about the 17th day of September, 1990, in the evening, at Barangay Jolo,
Municipality of Roxas, Province of Palawan, Philippines, and within the jurisdiction of this
Honorable Court, the said accused by means of force, threat and intimidation and with lewd
design, did then and there wilfully, unlawfully and feloniously have carnal knowledge for
several times with one GLORIA CRISOSTOMO, against her will and consent, to her damage
and prejudice.

CONTRARY TO LAW.

On the other hand, the following is the accusatory portion of the information in Criminal Case No.
9007:

That on or about the 17th day of September 1990, in the evening, at Barangay Jolo,
Municipality of Roxas, Province of Palawan, Philippines, and within the jurisdiction of this
Honorable Court, the said accused, by means of force, threat and intimidation, did then and
there wilfully, unlawfully and feloniously kidnap and detain MACRIS CRISOSTOMO and
SARAH CRISOSTOMO, both minor children, by bringing them to Barangay San Pedro,
Puerto Princesa City and later transferred to a house at Baltan Street, Puerto Princesa City
for more than five (5) days thereby depriving them of their liberty until they were retrieved by
police authorities last September 24, 1990 at Baltan Street, Puerto Princesa.

The cases were assigned to Branch 52 of the court below.

The evidence for the prosecution consisting mainly of the testimonies of Bernardo, Gloria, and
Macris Crisostomo discloses that appellant Jimmy Conte was a prisoner committed to the
Muntinglupa and later transferred to the Iwahig Prison and Penal Farms in Palawan. Sometime after
he was set free, or in July 1990, he went to see Bernardo Crisostomo in New Buncag, Puerto
Princesa City, and pleaded that he be given some employment. Then and there, Bernardo hired him
as a helper in the former's coconut plantation in Barangay Jolo, Roxas, Palawan. He started working
in the plantation the following day, gathering coconuts and processing them into copra. He was
made to stay together with the other workers in a structure serving as a copra drier located about
twenty meters away from the house of the Crisostomos.5

Most of the time, Bernardo was in New Buncag, as he was constructing a house there. Only his wife,
Gloria, and two of their seven children — 7-year old Macris and 5-year old Sarah — were left in their
residence in Jolo.6

On 17 September 1990 at around 11:00 p.m., Jimmy went to the house of the Crisostomos, sneaked
into the room where Gloria and her children were sleeping, and poked a home-made gun close to
Gloria's mouth. He then forcibly stripped off Gloria's dress and panty causing them to be torn. He
pushed Gloria to the floor, threatened to shoot her if she would make any outcry, and laid on top of
her. Enveloped with fear, Gloria could do nothing but cry. Jimmy then removed his brief and forcibly
inserted his penis into her genitalia. After consummating his lustful desires, he got up, sat down
beside Gloria, and kept watch over her and the two children. Macris was then awake, while Sarah
was still asleep. Upon seeing and hearing Macris cry loudly, Jimmy slapped him and threatened to
kill him should he make any noise.7

Jimmy repeated his savage act against Gloria at about 1:00 a.m. and at 4:00 a.m. the next day, 18
September 1990.8

Later on that same day, Jimmy declared that somebody whom he had earlier contacted would come
to buy the carabao of the Crisostomos. He remained in the house from morning till afternoon waiting
for the purported buyer. The latter arrived at 4:00 p.m., paid the former the sum of P5,000.00, and
took the carabao. All the while, Gloria just kept on crying. At around 9:00 p.m., a cargo truck arrived.
Jimmy took Sarah and threatened to kill her should Gloria refuse to go with him. He then forced her
and Macris to board the vehicle. With Sarah in his arms, he seated himself beside the driver and
made Gloria and Macris sit also in the front seat of the truck.9

It was about 1:00 a.m. of 19 September 1990 when the truck reached Barangay San Pedro, Puerto
Princesa City. Upon Jimmy's order, Gloria and Macris alighted from the truck. Jimmy, who was
carrying Sarah, brought the Crisostomos to a place called Garcellano Picnic Ground. After
negotiating with the person on duty therein, he took the three to a cottage inside the compound.
There, he sexually ravished Gloria once in the early morning, and again, in the evening of that day.10

At dusk of 20 September 1990, Jimmy brought the Crisostomos to a house in Baltan Street, Puerto
Princesa City. During their three-day stay there, he had carnal knowledge with Gloria once in the
evening and once at dawn of each day.11

For the whole period that they were in the hands of Jimmy, the Crisostomos were served with meals
ordered by him.12 On 21 September 1990, Gloria managed to have the boy who had delivered the
food bring to a certain Sgt. Pilapil a letter 13 informing him of their situation and pleading for their
rescue. She instructed the boy to send it to the CAFGU Detachment in Roxas, Palawan, through a
passenger jeepney going to that place.14

In the early morning of 23 September 1990, Sgt. Pilapil went to see Bernardo in his house in New
Buncag, Puerto Princesa City, and gave to the latter the aforesaid letter. After reading the same,
Bernardo proceeded to the City Police Station. A certain Sgt. Crisanto Pantallano volunteered to
help him look for his wife and children. Together, the two went to Baltan Street, which was the
address written in the letter. At about 12:00 noon, Bernardo caught sight of Jimmy sitting at the stairs
of a house at No. 40 Baltan Street. Sgt. Pantallano forthwith arrested Jimmy and asked him where
the Crisostomos were. Upon being told that the three were in a room at the upper story of the house,
he went to the room and found the Crisostomos there.15

Appellant Jimmy Conte presented an entirely different version. He declared that he and Gloria were
lovers and that the latter planned their elopement. According to him, sometime after he was released
from the Iwahig Prison and Penal Farm, he worked as a helper in the coconut plantation of Bernardo
Crisostomo at Roxas, Palawan. He and the other workers stayed in the copra drier near the
Crisostomo's house. Gloria visited him many times in the copra drier. At first, he did not give any
malicious meaning to those visits. One day, she sent away the three other helpers from the copra
drier. In the next instant, she approached him, undressed herself before him, and embraced him.
This culminated in carnal congress. They had since been doing it thrice each night for eight months.
In the later part of that period, they did it in the residence of the Crisostomos in the same bed where
Gloria's two children were sleeping, for then Gloria had already been abandoned by her husband.
Sometime thereafter, Gloria told him that she was pregnant and invited him to elope, as she was
afraid of her husband. They then eloped bringing along with them her two children. While waiting for
a boat bound for Luzon, they stayed in the meantime at the Garcellano Picnic Ground at San Pedro,
Puerto Princesa, and later transferred to Baltan Street. They continued having sexual intercourse in
those places. Later, however, he was arrested by a certain Bong Amorao and his companions, and
he was then brought to the police station of Puerto Princesa. 16 While he was detained in jail, Gloria
visited him. She even wrote him a letter, 17 which was handed to him in jail by the daughter of the
owner of the house in Baltan Street where they had stayed. Since he did not know how to read, he
let the jail warden read the letter for him,18 the full text of which is as follows:

Dear Jimmy Conte,

Iniibig kita Jimmy kahit kailan man hindi kita hihiwalayan. Ikaw lang ang aking mahal
pinabayaan kasi ako ng asawa ko kaya nakagawa ako ng hindi maganda talagang gusto
kong sumama sa iyo. Sana mahalin mo rin ako tulad ng pagmamahal ko sa iyo, hindi ka
kaya magsisisi sa katandaan kong ito? Mahal na mahal kita Jimmy balikan mo ako dito sa
Jolo Roxas talagang disidido na akong sumama sa iyo Jimmy dahil lang sa asawa kong
walanghiya pinabayaan kami.

Hanggang dito na lang Jimmy, I love you!

 Jimmy hindi ko sukat akalain na mahuhuli tayo sa ganong araw ngunit huwag kang mag-
alala wala kang kasalanan sa mga pangyayaring ito na naganap, dahil ito ay kagustuhan
kong lahat ang nangyari sa ating dalawa. Hindi naman kagustuhan mo ang pangyayari na ito
kong di ako ang may kasalanan. Nagawa ko ito dahil pinabayaan na kami ng aking asawa.
Ano man ang mangyari ako ang bahalang managot sa batas at sa mata ng maykapal.

same

P.S.

Kong tungkol naman sa kalabaw na binibintang sa iyo na ikaw ang nagpabili ay hindi totoo
yon, hindi naman ikaw ang nagbinta eh. Ako naman ang nagbinta ng kalabaw namin hindi
naman ikaw. Ako ang bahalang managot ng kalabaw na bininta ko tutal amin naman yon. At
sa tutoo lang hindi mo alam iyon.

same

To boost his theory, Jimmy presented Ruben Ladines, the owner of the house at Baltan Street
where he and Gloria and her two children had stayed; Rolly Nicanor, a detainee at the provincial jail
of Palawan and a former resident of Jolo, Roxas, Palawan; and Cipriano Sumagaysay, the jail
warden.

Ruben Ladines testified that sometime in September 1990, a woman, who had introduced herself as
Mrs. Gloria Conte, came to his house and asked for a room to rent. With her then were her two
children and a man by the name of Jimmy Conte. Upon being told that there was a vacant room at
the upper story of his house, she offered to rent it and paid a half-month advance rental. The family
stayed there for about ten days. During that period, he observed Jimmy and Gloria to be affectionate
to each other.19

Rolly Nicanor declared that prior to his arrest in Puerto Princesa on 18 March 1991, he was residing
at a house about ten to twenty meters away from that of the Crisostomos in Jolo, Roxas, Palawan.
Sometime in 1986, he accidentally killed a barriomate. After that incident, he went into hiding. But,
for several times, he returned to Jolo, and during those times he was there he could see Jimmy and
Gloria going together to the coconut plantation, embracing and kissing each other. This they did from
1987 to 1989. He also saw them elope at about 4:00 p.m. of 17 September 1990. 20

Cipriano Sumagaysay testified that on 27 September 1990, when he arrived at the Puerto Princesa
Jail, he saw an old woman who was just about to leave the jail. He then asked Jimmy who that
woman was, and the latter replied that she was his visitor, Gloria Crisostomo. About thirty minutes
thereafter, a young lady came and gave Jimmy a letter. Upon the latter's request, the jail warden
read the letter and kept it so that it could be used as evidence.21

After the conclusion of the joint trial of the two cases, the trial court rendered a joint decision
convicting the appellant in Criminal Case No. 9006 of the crime of rape on eleven counts and
sentencing him to reclusion perpetua for each crime and to pay the complainant an indemnity in the
amount of P50,000.00, but acquitting him of the charge of kidnapping with serious illegal detention in
Criminal Case No. 9007 on the ground that "the acts of taking and holding the children hostage only
form part of the threat and intimidation which the accused employed to insure realization of his
carnal designs against their mother."22

In this appeal, the appellant faults the trial court for (1) giving weight and credence to the testimony
of the private complainant that she was forcibly raped several times by him and (2) finding him guilty
beyond reasonable doubt of the crime of rape.

It is doctrinally entrenched that the trial court's evaluation of the testimony of witnesses is generally
viewed as correct and is accorded great weight on appeal, for that court had the advantage of
observing the demeanor and behavior of the witnesses while testifying.23 In the present case, we find
no compelling reason to depart from this rule, for our own assessment of the testimony of the
complainant, Gloria Crisostomo, discloses no fact of substance and value which the trial court
overlooked, misunderstood, or misapplied which, if considered, might affect the result of this case.

The appellant contends that the guilty verdict cannot be sustained because there is no clear and
convincing proof that he forced the complainant to have sexual intercourse with him for several times
He further claims that the threat or intimidation that he would kill the complainant and her two
children was not sufficient to prevent the complainant from putting up some resistance or struggle
against his acts or from shouting in order to get the attention of her neighbors.

We are not persuaded. Under Article 335(1) of the Revised Penal Code, rape is committed by
having carnal knowledge of a woman by using force or intimidation. The appellant's acts of poking a
gun at the complainant, ripping off her dress and underwear, and pushing her to the floor constitute
force. These acts were followed by an intimidation that he would shoot the complainant should she
make any noise. Thus:

Q And when you saw that Jimmy Conte was inside your room, what did you
do?

A He poke a homemade gun on me, sir.

Q In what particular portion of your body was [sic] he poke the gun?

A Near my mouth; sir.

Q When he poke that gun on your mouth, what did he do next?

A He pulled my dress and it was torn, sir.

Q What were you wearing, by the way, that evening?

A A duster, sir.

Q When he pulled your duster and the same was torn, what did you do next?

A He pulled also my panty and it was torn, sir.

Q How about you, what did you do when he destroyed your gown and panty?

A I just cried and cried, sir.

 xxx xxx xxx

Q You said that this Jimmy Conte pulled your gown and pulled down your
panty and it was also destroyed, what did you do next, after that?

A He pushed me and I fell down, sir.

Q You fell down where?

A On the floor, sir.

Q And when you were down on the floor, what did you do next?

A He took off his brief and then he lay on top of me, sir.

Q And when he went on top of you, what did you do?

A He held his penis and placed inside my vagina, sir.

Q What did you do when he did that?

Q I just cried because the gun was beside him and he said if I make noise,
he will shoot me, sir. 24

From the aforequoted testimony, there is no shred of doubt that the appellant did rape the private
complainant in the evening of 17 September 1990.

But was the trial court correct in convicting the appellant of eleven counts of rape?

Notably, the single complaint filed by Gloria Crisostomo charges the appellant with several crimes of
rape, 25 in violation of Section 13, Rule 110 of the Rules of Court, which provides that a complaint or
information must charge but one offense. Under Sections 1 and 3(e) of Rule 117, the appellant,
before entering his plea, should have moved to quash the complaint for being duplicitous. For his
failure to do so, he is deemed to have waived the defect.26 Hence, pursuant to Section 3 of Rule 120,
the court could convict him of as many offenses as are charged and proved, and impose on him the
penalty for each and every one of them.

After examining the complainant's testimony in its entirety, our minds are at rest on the culpability of
the appellant for eleven counts of rape. On all the ten other occasions that he had carnal knowledge
of the complainant, there was admittedly neither physical force employed by the former nor
resistance or struggle on the part of the latter. But, the absence of resistance did not make voluntary
the complaint's submission to the criminal acts of the appellant.27

It must be recalled that at the outset, or in the first sexual assault, the appellant intimidated or
threatened with death the complainant, which necessary produced reasonable fear in her and
deprived her of will and freedom. The intimidation was a continuing one as shown by his possession
of a gun and the threat to kill the children. Thus, the complainant could not bring herself to scream or
resist his sexual assaults. During the succeeding days, he kept her and her children like virtual
prisoners and effectively implanted fear in the complainant's mind by continually carrying her
youngest child, Sarah, thereby sending the message that if the complainant would escape or make
any outcry he would kill the complainant and Macris. This message was made louder and clearer
when he told the complainant that he had killed a whole family in his place in Pangasinan, which led
to his conviction and service of his sentence at the Iwahig Prison and Penal Farm. These
circumstances were enough to engender a well-founded belief that the appellant was capable of
making good his threats. Her fear was not imagined.

In People vs. Pamor,28 this Court made this disquisition:

Intimidation in rape cases is not calibrated or governed by hard and fast rules. Since it is
addressed to the mind of the victim and is therefore subjective, it must be viewed in the light
of the victim's perception and judgment at the time of the commission of the crime. It is
enough that it produces fear — fear that if the victim does not yield to the bestial demands of
the accused, something would happen to her at that moment. It includes the moral kind such
as the fear caused by threatening the victim with a knife or pistol. Where such intimidation
exists and the victims cowed into submission as a result thereof, thereby rendering
resistance futile, it would be extremely unreasonable, to say the least, to expect the victim to
resist with all her might and strength. If resistance would nevertheless be futile because of a
continuing intimidation, then offering none at all would not mean consent to the assault as to
make the victim's participation in the sexual act voluntary.

The appellant also capitalizes on the admission of the private complainant during her cross-
examination that she could have escaped had she wanted to but she dared not. He then quotes the
following testimony:

Q You mean to say that the truck only pass by your house and Jimmy Conte
ask you to board the truck?

A Yes, sir.

Q And without any protest again you went with Jimmy Conte to board the
truck?

A I did not complain anymore because he was carrying my younger child, sir.

Q But while Jimmy Conte was holding your child, you have all the chances to
run away if you like?

A Yes. I have a chance to ask for help but what I was thinking was that my
child that he was holding, sir.

Q So, what you mean, you have all the chances to leave only you were afraid
that Jimmy Conte might kill your child?

A Yes, sir.29

It is clear from the complainant's testimony that while she had the chance of running away,
she did not grab it because had she done so her daughter, who was then being carried by
the appellant in his arms, could be killed. She must have been caught in the twin horns of a
wild dilemma. For, equally strong with, or even stronger than her desire to escape and to
protect herself and her honor was her love for or her inflexible sense of duty to protect her
child. She, like most mothers, was liable to put her child before everything else in the end.
Hence, she chose not to escape.
The theory of the appellant that the numerous occasions he had carnal knowledge of the
complainant were impelled by the electricity of mutual love and desire does not inspire belief.
As the trial court observed:

The accused is an unlettered former inmate of the Iwahig Prison and Penal Farms.
He is a helper in the processing of copra in the coconut plantation of Bernardo
Crisostomo and the complainant in the latter's coconut plantation in barangay Jolo,
Roxas, Palawan. He has not appeared to the court to be possessed of the physical
attributes and charms which could make women swoon and attracted to him in
expectation of ecstasy in romance. It would therefore seem rather farfetched that the
complainant would be drawn to him in the manner he had vainly sought to show by
evidence for the defense.

The complainant, on the other hand, is a 43-year old mother of seven (7), and the
lawfully-wedded wife of Bernardo Crisostomo. For 30 years of her married life she
had been living with her family in their coconut plantation in barangay Jolo, Roxas,
Palawan. On the basis of her age, the number of children she had brought up and is
still bringing up; the rural environment which, for all those years, must have shaped
her norm of conduct in life, all but make the court skeptical about the trustworthiness
of the characterizations by the accused of the morality of complainant. Such
characterization run counter to the generally accepted trait of the common Filipino
wife and mother.

It was because of a letter surreptitiously sent by the complainant to the CAGFU

Detachment Commander that the police and her husband subsequently rescued her
and her two children from the accused. If it were true that the complainant had
indeed chosen to forsake her marriage, her children and the man she had been
married to and lived for 30 years, she would not have thwarted the realization of her
fantasies by writing that letter thru which, he sought the assistance of the CAGFU in
rescuing her and her children from the accused.

Furthermore, the testimonies of the accused himself and that of Ruben Ladines with
respect to the other incidents of the case could hardly contribute to the probative
worth of the evidence for the defense. The accused declared that before they eloped
to Puerto Princesa City he had been having sexual conversation with the
complainant three times nightly, for eight (8) months. Aside from the improbability of
his capacity for sexual performance with such frequency he could not have done so
for that length of time as he had been in Jolo, Roxas, Palawan, as helper of the
Crisostomos, for only about two months before they supposedly eloped to Puerto
Princesa City.

For his part Ruben Ladines declared, among others, that the accused and Gloria
Crisostomo and her children stayed in the former's house in Baltan Street for almost
two weeks. During that period the couple were said to have comported themselves
as husband and wife, and were observed to have been affectionate to one another.
The truth of what this witness asserted, though, is belied by the impressive and
convincing evidence that the complainant and her children were held hostage in that
boarding house for only three (3) days. 30

If it were true that the complainant loved the appellant and had illicit sexual relations with him
while her husband was away, then she would not have exerted any effort to contact Sgt.
Pilapil in order to be rescued. Neither would she execute an affidavit pointing to the appellant
as her rapist nor would she file a complaint for rape and thereafter undergo the expense,
trouble, inconvenience, and scandal of a public trial for rape. On the contrary, she would
have preserved the illicit union by whatever means to ensure endless gratification of her
biological needs. In exposing the evil deeds of the appellant and in facing the ordeal of a
public trial, the complainant showed an honest desire to seek justice.

The alleged letter of the complainant31 purportedly sent to the appellant while he was
detained in jail does not save the day for him. The trial court "was not impressed by the
integrity and trustworthiness"32 thereof. Neither are we. Our own examination of the signature
"GLORIA" appearing therein readily discloses that it is conspicuously different from the
signature of complainant Gloria Crisostomo in her complaint and sworn statement.33 That
letter was not even properly identified. Then too, the circumstances under which it was
purportedly delivered to the appellant do not at all inspire credence. According to witness
Cipriano Sumagaysay, warden of the City Jail of Puerto Princesa City, the letter was
delivered by a 14-year old girl some thirty minutes after an old lady, who was claimed by the
appellant to be the complainant, had visited the appellant. If indeed the old lady was Gloria
Crisostomo, we find neither reason nor rhyme why she would still send a letter to the
appellant a few minutes after she left. Moreover, Gloria who was then only 43 years of age
cannot be said to be an "old lady." Finally, if Sumagaysay actually saw the "old lady," he
could have, while on the witness stand, pointed to the complainant as the "old lady" whom he
had seen visiting the appellant. Sumagaysay's testimony was not even corroborated by the
visitor's logbook of the city jail.

All told, the trial court correctly found the appellant guilty beyond reasonable doubt of the
crime of rape on eleven counts and correctly sentenced him to eleven times of reclusion
perpetua. The service of the said penalties shall not, however, exceed forty years pursuant
to Article 70 of the Revised Penal Code, as amended by C.A. No. 217.34

In view of such convictions, the appellant should, as well be ordered to pay civil indemnity in
each case, and not just a single indemnity of P50,000.00 in all the cases. We hold that,
consistent with the current policy of the Court, the appellant should be ordered to indemnify
the complainant in the sum of P40,000.00 in each of the eleven counts of rape.

Whether the trial court correctly acquitted the appellant in Criminal Case No. 9007 is an
entirely different matter which is already beyond our reviewing authority, since a judgment of
acquittal becomes final immediately after promulgation.35

WHEREFORE, subject to the above modification on the award of civil indemnity, the
appealed decision of Branch 52 of the Regional Trial Court of Palawan (Puerto Princesa
City) in Criminal Case No. 9006 is hereby AFFIRMED with costs against appellant Jimmy
Conte.

SO ORDERED.

Padilla, Bellosillo, Kapunan and Hermosisima, Jr., JJ., concur.

 ARTICLE 91

Article 91. Computation of prescription of offenses. - The period of prescription shall commence to
run from the day on which the crime is discovered by the offended party, the authorities, or their
agents, and shall be interrupted by the filing of the complaint or information, and shall commence to
run again when such proceedings terminate without the accused being convicted or acquitted, or are
unjustifiably stopped for any reason not imputable to him.

The term of prescription shall not run when the offender is absent from the Philippine Archipelago.

.R. No. L-22465 February 28, 1967

PEOPLE OF THE PHILIPPINES, ET AL., plaintiffs-appellants,

vs.
ASCENSION P. OLARTE, defendant-appellee.

Saturnino D. Bautista for plaintiff-appellant Meris.

Office of the Solicitor General Arturo A. Alafriz and Solicitor Ceferino S. Gaddi for plaintiff-appellant
People of the Philippines.
Chuidian Law Offices, P. V. Sison, D. Acuna, J. Asuncion, E. G. Bruno and Silverio B. de Leon for
defendant-appellee.

REYES, J.B.L., J.:

This is the second time the present case is brought on appeal to this Supreme Court on the identical
issue of prescription.

The antecedents of this case are briefly stated in the decision of the previous appeal (L-13027):

Defendant 'Ascension P. Olarte is charged with libel. It is alleged in the information that on or
about the 24th day of February, 1954 and subsequently thereafter said defendant had
willfully, unlawfully and feloniously written certain letters which were libelous, contemptuous
and derogatory to Miss Visitacion M. Meris, 'with evident and malicious purpose of insulting,
dishonoring, humiliating and bringing into contempt the good name and reputation' of said
complainant.

It appears that on January 7, 1956, Miss Meris lodged the corresponding charge of libel with
the provincial fiscal of Pangasinan, who assigned it to an assistant provincial fiscal; that upon
the latter's advice, on February 22, 1956, she filed with the Justice of the Peace Court of
Pozorrubio, Pangasinan, a complaint for libel against Ascencion P. Olarte that the defendant
waived her right to a preliminary investigation, whereupon the justice of the peace court
forwarded the case to the Court of First Instance of Pangasinan, in which the corresponding
information was filed on July 3, 1956; that the defendant seasonably moved to quash the
information upon the ground of prescription of the offense; and that, after due hearing, the
court of first instance granted said motion and dismissed the case, with costs de oficio.
Hence, this appeal by complainant Miss Meris with the conformity of the special counsel of
the office of the provincial fiscal of Pangasinan, who represented the prosecution in said
court.
This Court, likewise, stated in said previous appeal:

It is conceded that, as provided in Article 90 of the Revised Penal Code, 'the crime of libel ...
shall prescribe in two (2) years, which, pursuant to Article 91 of the same Code, 'shall
commence to run from the day on which the crime is discovered by the offended party, the
authorities or their agents, and shall be interrupted by the filing of the complaint or
information ....' In an affidavit, attached to the complaint filed with the justice of the peace
court, Miss Meris stated that one defamatory letter was received by her on February 27,
1954 and that there were other libelous letters, seemingly written after the first. According to
another affidavit, likewise, attached to said complaint, the subsequent letters were received
on or about March 1 and 13, April 26 and May 9, 1954. The issue in the lower court, as well
as in this appeal, is whether the statute of limitations was suspended by the filing of the
complaint with the justice of the peace court on February 22, 1956, as claimed by appellant,
or continued to run until July 3, 1956, when the information was filed with the court of first
instance, as contended by the defendant. His Honor, the trial Judge adopted the latter
alternative, and, accordingly, held that the prescriptive period had expired before the filing of
said information. (Emphasis supplied)

Resolving the issue thus posed on the basis of the abovequoted facts, this Court, speaking through
the then Associate Justice (now Chief Justice) Roberto Concepcion, and after an extensive and
exhaustive dissertation on the applicable laws and pertinent decisions on the subject, rendered a
decision, promulgated on June 30, 1960, the dispositive portion of which reads:

IN VIEW OF THE FOREGOING, it is our considered opinion that the filing of the complainant
with the justice of the peace court of Pozorrubio, Pangasinan, interrupted the running of the
statute of limitations, as regards the crime of libel with which defendant herein is charged,
and that said crime has not been extinguished, therefore, by prescription, for which reason
the order appealed from is reversed, and the records of this case are hereby remanded to
the lower court for further proceedings, conformably with law.

IT IS SO ORDERED.

The above ruling became final and executory, and, pursuant thereto, the lower court set the case for
hearing on the merits and the prosecution started presenting its evidence. However, on August 26,
1963, the defense presented anew a motion to quash the information, supplemented by another
motion of September 5, 1963, on the ground of prescription of the offense charged in the
information. In said motions, the defense invoked the subsequent ruling of this Court in the case of
People vs. Coquia, G.R. No. L-15456, promulgated on June 29, 1963. On November 4, 1963, the
prosecution opposed said motions. The defense submitted its reply on November 13, 1963.

After due hearing on this incident, the lower court issued the appealed order, dated January 16,
1964, sustaining the defense's new motion to quash upon the ground of prescription. In this order,
the lower court, after comparing and finding that the set of facts obtaining in the case at bar is
practically identical with those of the Coquia case, opined that inasmuch as the latter is inconsistent
with or contradicts the previous decision
(L-13027) in the case at bar, promulgated on June 30, 1960, the 1963 ruling in the Coquia case
indicates that this Supreme Court intended to abandon the one made in 1960 in the first appeal of
this same case (L-13027).

Not satisfied, the prosecution (special counsel of the Office of the Provincial Fiscal of Pangasinan
and the private prosecutor jointly) interposed the present appeal to this Court on a pure question of
law.
The complainant Miss Meris through her private prosecutor, filed her brief. Subsequently, the
Solicitor General, in representation of plaintiff-appellant People of the Philippines, instead of filing a
brief, filed, on August 18, 1964, a manifestation, stating to the effect that they are submitting the
case without any brief, said complainant having filed a brief in her behalf; and that they are of the
opinion that the order of the lower court dismissing the case was well taken. In view of this
manifestation, defendant-appellee presented, on September 7, 1964, a motion to dismiss the
appeal.

This Court, by resolution dated October 2, 1964, denied said motion for the present.

Defendant-appellee moved to reconsider said denial but this Court, in its resolution of October 21,
1964, overruled the defendant's motion. 1äwphï1.ñët

Thereafter, said defendant-appellee filed her brief and the case was submitted for decision.

The only issue presented for determination in this appeal is the effect of this Court's ruling on the first
appeal to this very same case (L-13027) and whether the decision in the later case of People vs.
Coquia, G.R. No. L-15456, June 29, 1963, warrants the dismissal of the information in the case at
bar on the ground of prescription.

Suffice it to say that our ruling in Case L-13027, rendered on the first appeal, constitutes the law of
the case, and, even if erroneous, it may no longer be disturbed or modified since it has become final
long ago. A subsequent reinterpretation of the law may be applied to new cases but certainly not to
an old one finally and conclusively determined (People vs. Pinuila, G.R. No. L-11374, May 30, 1958;
55 O.G. 4228).

'Law of the case' has been defined as the opinion delivered on a former appeal. More
specifically, it means that whatever is once irrevocably established as the controling legal
rule of decision between the same parties in the same case continues to be the law of the
case, whether correct on general principles or not, so long as the facts on which such
decision was predicated continue to be the facts of the case before the court. (21 C.J.S.
330). (cited in Pinuila case, supra)

As a general rule a decision on a prior appeal of the same case is held to be the law of the
case whether that decision is right or wrong, the remedy of the party being to seek a
rehearing (5 C.J.S. 1277). (also cited in Pinuila case)

It is also aptly held in another case that:

It need not be stated that the Supreme Court, being the court of last resort, is the final arbiter
of all legal question properly brought before it and that its decision in any given case
constitutes the law of that particular case. Once its judgment becomes final it is binding on all
inferior courts, and hence beyond their power and authority to alter or modify. (Kabigting vs.
Acting Director of Prisons, G.R. No. L-15548, October 30, 1962).

More categorical still is the pronouncement of this Court in Pomeroy vs. Director of Prisons,
1,14284-85, February 24, 1960:

It will be seen that the prisoner's stand assumes that doctrines and rulings of the Supreme
Court operate retrospectively, and that they can claim the benefit of decisions in People vs.
Hernandez; People vs. Geronimo, and People vs. Dugonon (L-6025-26, July 18, 1956; L-
 8936, Oct. 31, 1956; and L-8926, June 29, 1957, respectively), promulgated four or more
years after the prisoner applicants had been convicted by final judgment and started serving
sentence. However, the rule adopted by this Court (and by the Federal Supreme Court) is
that judicial doctrines have only prospective operation and do not apply to cases previously
decided (People vs. Pinuila, L-11374, promulgated May 30, 1958.)

In the foregoing decision, furthermore, this Court quoted and reiterated the rule in the following
excerpts from People vs. Pinuila, G.R. No. L-11374, jam cit.:

'The decision of this Court on that appeal by the government from the order of dismissal,
holding that said appeal did not place the appellants, including Absalon Bignay, in double
jeopardy, signed and concurred in by six justices as against three dissenters headed by the
Chief Justice, promulgated way back in the year 1952, has long become the law of the case.
It may be erroneous, judged by the law on double jeopardy as recently interpreted by this
same Tribunal. Even so, it may not be disturbed and modified. Our recent interpretation of
the law may be applied to new cases, but certainly not to an old one finally and conclusively
determined. As already stated, the majority opinion in that appeal is now the law of the case.'

The same principle, the immutability of the law of the case notwithstanding subsequent changes of
judicial opinion, has been followed in civil cases:

Fernando vs. Crisostomo, 90 Phil. 585;

Padilla vs. Paterno, 93 Phil. 884;
Samahang Magsasaka, Inc. vs. Chua Guan, L-7252, February, 1955.

It is thus clear that posterior changes in the doctrine of this Court can not retroactively be applied to
nullify a prior final ruling in the same proceeding where the prior adjudication was had, whether the
case should be civil or criminal in nature.

Analysis of the precedents on the issue of prescription discloses that there are two lines of decisions
following differing criteria in determining whether prescription of crimes has been interrupted. One
line of precedents holds that the filing of the complaint with the justice of the peace (or municipal
judge) does interrupt the course of the prescriptive term: People vs. Olarte L-13027, June 30, 1960
and cases cited therein; People vs. Uba, L-13106, October 16, 1959; People vs. Aquino, 68 Phil.
588, 590. Another series of decisions declares that to produce interruption the complaint or
information must have been filed in the proper court that has jurisdiction to try the case on its
merits: People vs. Del Rosario, L-15140, December 29, 1960; People vs. Coquia, L-15456, June 29,
1963.

In view of this diversity of precedents, and in order to provide guidance for Bench and Bar, this Court
has reexamined the question and, after mature consideration, has arrived at the conclusion that the
true doctrine is, and should be, the one established by the decisions holding that the filing of the
complaint in the Municipal Court, even if it be merely for purposes of preliminary examination or
investigation, should, and does, interrupt the period of prescription of the criminal responsibility, even
if the court where the complaint or information is filed can not try the case on its merits. Several
reasons buttress this conclusion: first, the text of Article 91 of the Revised Penal Code, in declaring
that the period of prescription "shall be interrupted by the filing of the complaint or information"
without distinguishing whether the complaint is filed in the court for preliminary examination or
investigation merely, or for action on the merits. Second, even if the court where the complaint or
information is filed may only proceed to investigate the case, its actuations already represent the
initial step of the proceedings against the offender. Third, it is unjust to deprive the injured party of
the right to obtain vindication on account of delays that are not under his control. All that the victim of
the offense may do on his part to initiate the prosecution is to file the requisite complaint.

And it is no argument that Article 91 also expresses that the interrupted prescription " shall
commence to run again when such proceedings terminate without the accused being convicted or
acquitted", thereby indicating that the court in which the complaint or information is filed must have
power to acquit or convict the accused. Precisely, the trial on the merits usually terminates in
conviction or acquittal, not otherwise. But it is in the court conducting a preliminary investigation
where the proceedings may terminate without conviction or acquittal, if the court should discharge
the accused because no prima facie case has been shown.

Considering the foregoing reasons, the Court hereby overrules the doctrine of the cases of People
vs. Del Rosario L-15140, December 29, 1960; and People vs. Coquia, L-15456, promulgated June
29, 1963.

And it having been finally decided in the previous appeal that the criminal action here was not
barred, the issue of prescription is utterly foreclosed, and all that remains is to try and decide the
case on the merits. It is expected that it will be done with the utmost dispatch, this case having been
already pending for many years.

Wherefore, the appealed order of dismissal is hereby set aside and reversed, and the records of this
case ordered remanded to the lower court for further proceedings conformably with this decision.
With costs against defendant-appellee.

\
G.R. No. 122274 July 31, 1996

SUSAN V. LLENES, petitioner,

vs.
HON. ISAIAS P. DICDICAN, Presiding Judge, Regional Trial Court of Cebu, Branch 11, HON.
AMADO B. BAJARIAS, SR., Presiding Judge, Municipal Trial Court, Branch 7, and VIVIAN G.
GINETE, respondents.

DAVIDE, JR., J.:p

The key issue raised in this special civil action for certiorari under Rule 65 of the Rules of
Court is whether the filing with the office of the Ombudsman of a complaint against a
government official for grave oral defamation interrupts the period of prescription of such
offense.

We find this issue to be important enough to merit our attention. We thus resolved to give
due course to the petition, consider the private respondent's comment on the petition1 as the
answer thereto, and decide it on the basis of the pleadings which have sufficiently discussed
the issue.

The factual and procedural antecedents are not disputed.

On 13 October 1993, private respondent Vivian G. Ginete, then officer-in-charge of the

Physical Education and School Sports (PESS) Division of the Regional Office of Region VII
in Cebu City of the Department of Education, Culture and Sports (DECS), filed with the
Office of the Deputy Ombudsman for the Visayas (hereinafter Ombudsman-Visayas) a
complaint for grave oral defamation2 allegedly committed on 23 September 1993 by
petitioner Susan V. Llenes, an Education Supervisor II of the same Regional Office.

The petitioner was required to file a counter-affidavit pursuant to Administrative Order No. 7
of the Office of the Ombudsman, but she failed to do so.

In his resolution of 15 March 1994,3 Antonio B. Yap, Graft Investigation Officer I of the said
office, recommended that the case be indorsed to the Office of the City Prosecutor of Cebu
City for the filing of the necessary information against the petitioner. This resolution was
approved by the Deputy Ombudsman-Visayas.

On 28 March 1994, the City Prosecutor of Cebu City filed with the Municipal Trial Court
(MTC) in Cebu City an information4 for grave oral defamation against the petitioner. This was
docketed as Criminal Case No. 35684-R and assigned to Branch 7 thereof.

On 30 May 1994, the petitioner filed a motion to quash5 the information on the ground that
the "criminal action or liability" has been extinguished. She contended that under Article 90 of
the Revised Penal Code, the offense of grave oral defamation prescribes in 6 months and
that since the information was filed only on 28 March 1994, or 186 days or 6 months and 6
days after its alleged commission, the crime had then already prescribed. In support thereof,
she cited the decision in "Zalderia6 vs. Reyes, Jr., G.R. No. 102342, July 3, 1992, 211 SCRA
277," wherein this Court ruled that the filing of an information at the fiscal's office will not stop
the running of the prescriptive period for crimes.

In her opposition,7 the private respondent cited Section 1, Rule 110 of the Rules of the Court
which provides, inter alia, that for offense not subject to the rule on summary procedure in
special cases and which fall within the jurisdiction of Municipal Trial Courts and Municipal
Circuit Trial Courts, the filing of the complaint directly with the said court or with the fiscal's
office interrupts the period of prescription of the offense charged. The filing of the complaint
by the private respondent with the Office of the Deputy Ombudsman-Visayas was equivalent
to the filing of a complaint with the fiscal's (now prosecutor's) office under said Section 1
pursuant to its powers under Section 15(1) of R.A. No. 6770, otherwise known as the
Ombudsman Act of 1989. The private respondent further claimed that Zaldivia is inapplicable
because it involves an offense covered by the rule on summary procedure and it explicitly
stated that Section 1 of Rule 110 excludes cases covered by the Rule on Summary
Procedure.

The Municipal Trial Court, per public respondent Judge Bajarias, denied the motion to quash
in the order of 18 July 1994.8 It fully agreed with the stand of the private respondent.

Her motion to reconsider9 the above order having been denied on 29 November 1994,10 the
petitioner filed with the Regional Trial Court (RTC) of Cebu a special civil action
for certiorari,11 which was docketed therein as Civil Case No. CEB-16988. The case was
assigned to Branch 11.

In its decision of 3 July 1995,12 the RTC, per public respondent Judge Isaias P. Dicdican,
affirmed the challenged orders of Judge Bajarias of 18 July 1994 and 29 November 1994. It
ruled that the order denying the motion to quash is interlocutory and that the petitioner's
remedy, per Acharon vs. Purisima,13 reiterated in People vs. Bans,14 was to go to trial without
prejudice on her part to reiterate the special defense she had invoked in her motion to quash
and, if after trial on the merits an adverse decision is rendered, to appeal therefrom in the
manner authorized by law. Besides, the petitioner has not satisfactorily and convincingly
shown that Judge Bajarias has acted with grave abuse of discretion in issuing the orders
considering that the ground invoked by her does not appear to be indubitable. And even
assuming that the MTC erred in venturing an opinion that the filing of the complaint with the
Office of the Ombudsman is equivalent to the filing of a complaint with the fiscal's office,
such error is merely one of judgment. For, there is no decided case on the matter, and the
substantive laws have not clearly stated as to what bodies or agencies of government should
complaints or informations be filed in order that the period of prescription of crimes or
offenses should be considered interrupted. Article 91 of the Revised Penal Code simply
states that the prescriptive period shall be interrupted by the "filing of the complaint or
information" and has not specified further where such complaint or information should be
filed.

Since the Regional Trial Court denied her motion to reconsider15 the decision in the order of
23 August 1995,16 the petitioner filed this special civil action wherein she reiterates the
arguments she adduced before the two courts below. The private respondent likewise did
nothing more in her responsive pleading than reiterate what she had raised before the said
courts.
The basic substantive laws on prescription of offense are Article 90 and 91 of the Revised
Penal Code for offenses punished thereunder, and Act No. 3326, as amended, for those
penalized by special laws. Under Article 90 of the Revised Penal Code, the crime of grave
oral defamation, which is the subject of the information in Criminal Case No. 35684-R of the
MTC of Cebu, prescribes in 6 months. Since Article 13 of the Civil Code provides that when
the law speaks of months it shall be understood to be of 30 days, then grave oral defamation
prescribes in 180 days.17 Article 91 of the Revised Penal Code provides:

Art. 91. Computation of prescription of offenses. — The period of prescription shall

commence to run from the day on which the crime is discovered by the offended
party, the authorities, or their agents, and shall be interrupted by the filing of the
complaint or information, and shall commence to run again when such proceedings
terminate without the accused being convicted or acquitted, or are unjustifiably
stopped for any reason not imputable to him.

The term of prescription shall not run when the offender is absent from the Philippine
Archipelago.

In the instant case, the alleged defamatory words were directly uttered in the presence of the
offended party on 23 September 1993. Hence, the prescriptive period for the offense started
to run on that date.

The matter of interruption of the prescriptive period due to the filing of the complaint or
information had been the subject of conflicting decisions of this Court. In People
vs. Tayco,18 People vs. Del Rosario,19 and People vs. Coquia,20 this Court held that it is the
filing of the complaint or information with the proper court, viz. the court having jurisdiction
over the crime, which interrupts the running of the period of prescription. On the other hand,
in the first case of People vs. Olarte,21 a case for libel, this Court held that the filing of the
complaint with the justice of the peace court even for preliminary investigation purposes only
interrupts the running of the statute of limitations.

However, the decision of 28 February 1967 of this Court in the second case of People
vs. Olarte 22 resolved once and for all what should be the doctrine, viz., that the filing of the complaint with the municipal trial
court even for purposes of preliminary investigation only suspends the running of the prescriptive period. Thus:

Analysis of the precedents on the issue of prescription discloses that there are two
lines of decisions following differing criteria in determining whether prescription of
crimes has been interrupted. One line of precedents holds that the filing of the
complaint with the justice of the peace (now municipal judge) does interrupt the
course of the prescriptive term: People vs. Olarte, L-13027, June 30, 1960 and cases
cited therein; People vs. Uba, L-13106, October 16, 1959; People vs. Aquino, 68
Phil. 588, 590. Another series of decisions declares that to produce interruption the
complaint or information must have been filed in the proper court that has jurisdiction
to try the case on its merits: People vs. Del Rosario, L-15140, December 29, 1960;
People vs. Coquia, L-15456, June 29, 1963.

In view of this diversity of precedents, and in order to provide guidance for Bench
and Bar, this Court has reexamined the question and, after mature consideration,
has arrived at the conclusion that the true doctrine is, and should be, the one
established by the decisions holding that the filing on the complaint in the Municipal
Court, even if it be merely for purposes of preliminary examination or investigation,
should, and does, interrupt the period of prescription of the criminal responsibility,
 even if the court where the complaint or information cannot try the case on its merits.
Several reasons buttress this conclusion: First, the text of Article 91 of the Revised
Penal Code, in declaring that the period of prescription "shall be interrupted by the
filing of the complaint or information" without distinguishing whether the complaint is
filed in the court for preliminary examination or investigation merely, or for action on
the merits. Second, even if the court where the complaint or information is filed may
only proceed to investigate the case, its actuations already represent the initial step
of the proceedings against the offender. Third, it is unjust to deprive the injured party
of the right to obtain vindication on account of delays that are not under his control.
All that the victim of the offense may do on his part to initiate the prosecution is to file
the requisite complaint.

And it is no argument that Article 91 also expresses that the interrupted prescription
"shall commence to run again when such proceedings terminate without the accused
being convicted or acquitted", thereby indicating that the court in which the complaint
or information is filed must have power to acquit or convict the accused. Precisely,
the trial on the merits usually terminates in conviction or acquittal, not otherwise. But
it is in the court conducting a preliminary investigation where the proceedings may
terminate without conviction or acquittal, if the court should discharge the accused
because no prima facie case has been shown.

Considering the foregoing reasons, the Court hereby overrules the doctrine of the
cases of People vs. Del Rosario, L-15140, December 29, 1960; and People vs.
Coquia, L-15456, promulgated June 29, 1963.

Then, in its decision of 30 May 1983 in Francisco vs. Court of

Appeals,23 this Court not only reiterated Olarte of 1967 but also broadened its scope by holding that
the filing of the complaint in the fiscal's office for preliminary investigation also suspends the running
of the prescriptive period. Thus:

Article 91 of the Revised Penal Code provides that . . . .

Interpreting the foregoing provision, this Court in People vs. Tayco held that the
complaint or information referred to in Article 91 is that which is filed in the proper
court and not the denuncia or accusation lodged by the offended party in the Fiscal's
Office. This is so, according to the court, because under this rule it is so provided that
the period shall commence to run again when the proceedings initiated by the filing
of the complaint or information terminated without the accused being convicted or
acquitted, adding that the proceedings in the Office of the Fiscal cannot end there in
the acquittal or conviction of the accused.

The basis of the doctrine in the Tayco case, however, was disregarded by this Court
in the Olarte case, cited by the Solicitor General. It should be recalled that before the
Olarte case, there was diversity of precedents on the issue of prescription. One view
declares that the filing of the complaint with the justice of the peace (or municipal
judge) does interrupt the course of prescriptive term. This view is found in People v.
Olarte, L-13027, June 30, 1960, October 16, 1959; People v. Aquino, 68 Phil. 588,
590. The other pronouncement is that to produce interruption, the complainant or
information must have been filed in the proper court that has jurisdiction to try the
case on its merits, found in the cases of People v. del Rosario, L-15140, December
29, 1960; People v. Coquia. L-15456, June 29, 1963.
 The Olarte case set at rest the conflict views, and enunciated the doctrine aforecited
by the Solicitor General. The reasons for the doctrine which We find applicable to the
case at bar read:

xxx xxx xxx

As is a well-known fact, like the proceedings in the court conducting a preliminary

investigation, a proceeding in the Fiscal's Office may terminate without conviction or
acquittal.

As Justice Claudio Teehankee has observed:

To the writer's mind, these reasons Logically call with equal force, for
the express overruling also of the doctrine in People vs. Tayco, 73
Phil. 509, (1941) that the filing of a complaint or denuncia by the
offended party with the City Fiscal's Office which is required by law to
conduct the preliminary investigation does not interrupt the period of
prescription. In chartered cities, criminal prosecution is generally
initiated by the filing of the complaint or denuncia with the city fiscal
for preliminary investigation. In the case of provincial fiscals, besides
being empowered like municipal judges to conduct preliminary
investigations, they may even reverse actions of municipal judges
with respect to charges triable by Courts of Fist Instance . . . .

Clearly, therefore, the filing of the denuncia or complaint for intriguing against honor
by the offended party, later changed by the Fiscal to grave oral defamation, even if it
were in the Fiscal's Office, 39 days after the alleged defamatory remarks were
committed (or discovered) by the accused interrupts the period of prescription.
(emphasis supplied)

This Court reiterated Francisco in its resolution of 1 October 1993 in Calderon-Bargas vs. Regional
Trial Court of Pasig, Metro Manila.24

Sec. 1. How instituted. — For offenses not subject to the rule on summary procedure
in special cases, the institution of criminal actions shall be as follows:

(a) For offenses falling under the jurisdiction of the

Regional Trial Courts, by filing the complaint with the
appropriate officer for the purpose of conducting the
requisite preliminary investigation therein;

(b) For offenses falling under the jurisdiction of the

Municipal Trial Courts and Municipal Circuit Trial
Courts, by filing the complaint or information directly
with the said courts, or a complaint with the fiscal's
office. However, in Metropolitan Manila and other
chartered cities, the complaint may be filed only with
the office of the fiscal.

In all cases, such institution shall interrupt the period of prescription of the offense
charged. (emphasis supplied)
The rule, however, is entirely different under Act No. 3326, as amended, whose Section 2 explicitly
provides that the period of prescription shall be interrupted by the institution of judicial
proceedings, i.e., the filing of the complaint or information with the court. The said section reads:

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 double jeopardy. (emphasis supplied)

And so, in Zaldivia vs. Reyes,25 this Court held that the proceedings referred to in said
Section 2 are "judicial proceedings," which means the filing of the complaint or information
with the proper court.

Zaldivia, however, provides no safe refuge to the petitioner, and her invocation thereof misplaced. In
the first place, it involved a violation of an ordinance, which is covered by the Rule on Summary
Procedure. By its express mandate, Section 1, Rule 110 of the Rules of Court does not apply to
cases covered by the Rule on Summary Procedure. Second, since the ordinance in question
partakes of a special penal statute Act No. 3326 is then applicable; hence, it is the filing in the proper
court of the complaint or information which suspends the running of the period of prescription.
In Zaldivia, this Court categorically interpreted Section 9 of the Rule on Summary Procedure to
mean that "the running of the prescriptive period shall be halted on the date the case is actually filed
in court and not on any date before that, "which is in consonance with Section 2 of Act No. 3326.

What is then left to be determined is whether the filing of the private respondent's complaint for
grave oral defamation with the office of the Ombudsman-Visayas is equivalent to filing the complaint
in the prosecutor's office such that it interrupted the prescriptive period for grave oral defamation.

Sec. 12 and 13(1), Articles XI of the Constitution provide:

Sec. 12. The Ombudsman and his Deputies, as protectors of the people, shall act
promptly on complaints filed in any form or manner against public officials or
employees of the Government, or any subdivision or instrumentality thereof,
including government-owned or controlled corporations, and shall, in appropriate
case, notify the complaints of the action taken and the result thereof.

Sec. 13. The Office of the Ombudsman shall have the following powers, functions,
and duties:

1. Investigate on its own, or on complaint by any person, any act or

omission of any public official, employee, office or agency, when such
act or omission appears to be illegal, unjust, improper, or inefficient.

Corollarily, Section 13, 15(1), and 16 of R.A. No. 6770, otherwise known as the Ombudsman Act of
1989, which Congress enacted pursuant to paragraph 826 of the aforementioned Section 13, Article
XI of the Constitution, provides as follows:

Sec. 13. Mandate. — The Ombudsman and his Deputies, as protectors of the
people, shall act promptly on complaints filed in any form or manner against officers
 or employees of the Government, or of any subdivision, agency or instrumentality
thereof, including government-owned or controlled corporations, and enforce their
administrative, civil and criminal liability in every case where the evidence warrants in
order to promote efficient service by the Government to the people.

xxx xxx xxx

Sec. 15. Powers, Functions and Duties — The Office of the Ombudsman shall have
the following powers, function and duties:

1. Investigate and prosecute on its

own or on complaint by any person,
any act or omission of any public
officer or employee, office or agency,
when such act or omission appears to
be illegal, unjust, improper or
inefficient. It has primary jurisdiction
over cases cognizable by the
Sandiganbayan and, in the exercise of
this primary jurisdiction, it may take
over, at any stage from any
investigatory agency of the
Government, the investigation of such
cases.

Sec. 16. Applicability. — The provisions of this Act shall apply to all kinds of
malfeasance, misfeasance, and nonfeasance that have been committed by any
officer or employee as mentioned in Section 13 hereof, during his tenure in office.

Needless to state, these broad constitutional and statutory provisions vest upon the Ombudsman
and his Deputies the power to initiate or conduct preliminary investigations in criminal cases filed
against public officers or employees, including government-owned or controlled corporations. Thus,
in Deloso vs. Domingo,27 this Court held.

As protector of the people, the office of the Ombudsman has the power, function and
duty "to act promptly on complaints filed in any form or manner against public
officials" (Sec. 12) and to "investigate . . . any act or omission appears to be illegal,
unjust, improper or inefficient." (Sec. 13[1].) The Ombudsman is also empowered to
"direct the officer concerned," in this case the Special Prosecutor, "to take
appropriate action against a public official . . . and to recommend his prosecution"
(Sec. 13[3]).

The clause "any [illegal] act or omission of any public official" is broad enough to
embrace any crime committed by a public official. The law does not qualify the nature
of the illegal act or omission of the public official or employee that the Ombudsman
may investigate. It does not require that the act or omission be related to or be
connected with or arise from, the performance of official duty. Since the law does not
distinguish, neither should we.

It must, however, be stressed that the authority of the Ombudsman to investigate any illegal act or
omission of any public officer is not an exclusive authority; rather, it is a "shared or concurrent
authority in respect of the offense charged."28
A public officer, as distinguished from a government "employee," is a person whose duties involved
the exercise of discretion in the performance of the functions of government.29 The petitioner, being
an Education Supervisor II of the Regional Office of Region VII of the DECS, is a public officer. The
Ombudsman-Visayas then has authority to conduct preliminary investigation of the private
respondent's complaint against the petitioner for grave oral defamation. Undoubtedly, the rationale of
the first Olarte case, reiterated as the controlling doctrine in the second Olarte case which was
broadened in Francisco and reiterated in Calderon-Bargas, must apply to complaints filed with the
Office of the Ombudsman against public officers and employees for purposes of preliminary
investigation. Accordingly, the filing of the private respondent's complaint for grave oral defamation
against the petitioner with the Ombudsman-Visayas tolled the running of the period of prescription of
the said offense. Since the complaint was filed on 13 October 1993, or barely twenty days from the
commission of the crime charged, the filing then of the information on 28 March 1994 was very well
within the six-month prescriptive period.

WHEREFORE, the instant petition is DISMISSED for want of merit.

No pronouncement as to costs.

Narvasa, C.J., Padilla, Regallado, Romero, Melo, Puno

.R. No. 152662 June 13, 2012

PEOPLE OF THE PHILIPPINES, Petitioner,

vs.
MA. THERESA PANGILINAN, Respondent.

DECISION

PEREZ, J.:

The Office of the Solicitor General (OSG) filed this petition for certiorari1 under Rule 45 of the Rules
of Court, on behalf of the Republic of the Philippines, praying for the nullification and setting aside of
the Decision2 of the Court of Appeals (CA) in CA-G.R. SP No. 66936, entitled "Ma. Theresa
Pangilinan vs. People of the Philippines and Private Complainant Virginia C. Malolos."

The fallo of the assailed Decision reads:

WHEREFORE, the instant petition is GRANTED. Accordingly, the assailed Decision of the Regional
Trial Court of Quezon City, Branch 218, is REVERSED and SET ASIDE and Criminal Cases Nos.
89152 and 89153 against petitioner Ma. Theresa Pangilinan are hereby ordered DISMISSED.3

Culled from the record are the following undisputed facts:

On 16 September 1997, Virginia C. Malolos (private complainant) filed an affidavit-complaint for

estafa and violation of Batas Pambansa (BP) Blg. 22 against Ma. Theresa Pangilinan (respondent)
with the Office of the City Prosecutor of Quezon City. The complaint alleges that respondent issued
nine (9) checks with an aggregate amount of Nine Million Six Hundred Fifty-Eight Thousand Five
Hundred Ninety-Two Pesos (₱9,658,592.00) in favor of private complainant which were dishonored
upon presentment for payment.

On 5 December 1997, respondent filed a civil case for accounting, recovery of commercial
documents, enforceability and effectivity of contract and specific performance against private
complainant before the Regional Trial Court (RTC) of Valenzuela City. This was docketed as Civil
Case No. 1429-V-97.

Five days thereafter or on 10 December 1997, respondent filed a "Petition to Suspend Proceedings
on the Ground of Prejudicial Question" before the Office of the City Prosecutor of Quezon City, citing
as basis the pendency of the civil action she filed with the RTC of Valenzuela City.

On 2 March 1998, Assistant City Prosecutor Ruben Catubay recommended the suspension of the
criminal proceedings pending the outcome of the civil action respondent filed against private
complainant with the RTC of Valenzuela City. The recommendation was approved by the City
Prosecutor of Quezon City.

Aggrieved, private complainant raised the matter before the Department of Justice (DOJ).

On 5 January 1999, then Secretary of Justice Serafin P. Cuevas reversed the resolution of the City
Prosecutor of Quezon City and ordered the filing of informations for violation of BP Blg. 22 against
respondent in connection with her issuance of City Trust Check No. 127219 in the amount of
₱4,129,400.00 and RCBC Check No. 423773 in the amount of ₱4,475,000.00, both checks totaling
the amount of ₱8,604,000.00. The estafa and violation of BP Blg. 22 charges involving the seven
other checks included in the affidavit-complaint filed on 16 September 1997 were, however,
dismissed.

Consequently, two counts for violation of BP Blg. 22, both dated 18 November 1999, were filed
against respondent Ma.Theresa Pangilinan on 3 February 2000 before the Office of the Clerk of
Court, Metropolitan Trial Court (MeTC), Quezon City. These cases were raffled to MeTC, Branch
31on 7 June 2000.

On 17 June 2000, respondent filed an "Omnibus Motion to Quash the Information and to Defer the
Issuance of Warrant of Arrest" before MeTC, Branch 31, Quezon City. She alleged that her criminal
liability has been extinguished by reason of prescription.

The presiding judge of MeTC, Branch 31, Quezon City granted the motion in an Order dated 5
October 2000.

On 26 October 2000, private complainant filed a notice of appeal. The criminal cases were raffled to
RTC, Branch 218, Quezon City.

In a Decision dated 27 July 2001, the presiding judge of RTC, Branch 218, Quezon City reversed the
5 October 2000 Order of the MeTC. The pertinent portion of the decision reads:

xxx Inasmuch as the informations in this case were filed on 03 February 2000 with the Clerk of Court
although received by the Court itself only on 07 June 2000, they are covered by the Rule as it was
worded before the latest amendment. The criminal action on two counts for violation of BP Blg. 22,
had, therefore, not yet prescribed when the same was filed with the court a quo considering the
appropriate complaint that started the proceedings having been filed with the Office of the
Prosecutor on 16 September 1997 yet.

WHEREFORE, the assailed Order dated 05 October 2000 is hereby REVERSED AND SET ASIDE.
The Court a quo is hereby directed to proceed with the hearing of Criminal Cases Nos. 89152 and
89153.4

Dissatisfied with the RTC Decision, respondent filed with the Supreme Court a petition for review5 on
certiorari under Rule 45 of the Rules of Court. This was docketed as G.R. Nos. 149486-87.

In a resolution6 dated 24 September 2000, this Court referred the petition to the CA for appropriate
action.

On 26 October 2001, the CA gave due course to the petition by requiring respondent and private
complainant to comment on the petition.

In a Decision dated 12 March 2002, the CA reversed the 27 July 2001 Decision of RTC, Branch 218,
Quezon City, thereby dismissing Criminal Case Nos. 89152 and 89153 for the reason that the cases
for violation of BP Blg. 22 had already prescribed.

In reversing the RTC Decision, the appellate court ratiocinated that:

xxx this Court reckons the commencement of the period of prescription for violations of Batas
Pambansa Blg. 22 imputed to [respondent] sometime in the latter part of 1995, as it was within this
period that the [respondent] was notified by the private [complainant] of the fact of dishonor of the
subject checks and, the five (5) days grace period granted by law had elapsed. The private
respondent then had, pursuant to Section 1 of Act 3326, as amended, four years therefrom or until
the latter part of 1999 to file her complaint or information against the petitioner before the proper
court.

The informations docketed as Criminal Cases Nos. 89152 and 89152(sic) against the petitioner
having been filed with the Metropolitan Trial Court of Quezon City only on 03 February 2000, the
said cases had therefore, clearly prescribed.

xxx

Pursuant to Section 2 of Act 3326, as amended, prescription shall be interrupted when proceedings
are instituted against the guilty person.

In the case of Zaldivia vs. Reyes7 the Supreme Court held that the proceedings referred to in Section
2 of Act No. 3326, as amended, are ‘judicial proceedings’, which means the filing of the complaint or
information with the proper court. Otherwise stated, the running of the prescriptive period shall be
stayed on the date the case is actually filed in court and not on any date before that, which is in
consonance with Section 2 of Act 3326, as amended.

While the aforesaid case involved a violation of a municipal ordinance, this Court, considering that
Section 2 of Act 3326, as amended, governs the computation of the prescriptive period of both
ordinances and special laws, finds that the ruling of the Supreme Court in Zaldivia v. Reyes8 likewise
applies to special laws, such as Batas Pambansa Blg. 22.9

The OSG sought relief to this Court in the instant petition for review. According to the OSG, while it
1âwphi1

admits that Act No. 3326, as amended by Act No. 3585 and further amended by Act No. 3763 dated
23 November 1930, governs the period of prescription for violations of special laws, it is the
institution of criminal actions, whether filed with the court or with the Office of the City Prosecutor,
that interrupts the period of prescription of the offense charged.10 It submits that the filing of the
complaint-affidavit by private complainant Virginia C. Malolos on 16 September 1997 with the Office
of the City Prosecutor of Quezon City effectively interrupted the running of the prescriptive period of
the subject BP Blg. 22 cases.

Petitioner further submits that the CA erred in its decision when it relied on the doctrine laid down by
this Court in the case of Zaldivia v. Reyes, Jr.11 that the filing of the complaint with the Office of the
City Prosecutor is not the "judicial proceeding" that could have interrupted the period of prescription.
In relying on Zaldivia,12 the CA allegedly failed to consider the subsequent jurisprudence superseding
the aforesaid ruling.

Petitioner contends that in a catena of cases,13 the Supreme Court ruled that the filing of a complaint
with the Fiscal’s Office for preliminary investigation suspends the running of the prescriptive period.
It therefore concluded that the filing of the informations with the MeTC of Quezon City on 3 February
2000 was still within the allowable period of four years within which to file the criminal cases for
violation of BP Blg. 22 in accordance with Act No. 3326, as amended.

In her comment-opposition dated 26 July 2002, respondent avers that the petition of the OSG should
be dismissed outright for its failure to comply with the mandatory requirements on the submission of
a certified true copy of the decision of the CA and the required proof of service. Such procedural
lapses are allegedly fatal to the cause of the petitioner.
Respondent reiterates the ruling of the CA that the filing of the complaint before the City
Prosecutor’s Office did not interrupt the running of the prescriptive period considering that the
offense charged is a violation of a special law.

Respondent contends that the arguments advanced by petitioner are anchored on erroneous
premises. She claims that the cases relied upon by petitioner involved felonies punishable under the
Revised Penal Code and are therefore covered by Article 91 of the Revised Penal Code (RPC)14 and
Section 1, Rule 110 of the Revised Rules on Criminal Procedure.15 Respondent pointed out that the
crime imputed against her is for violation of BP Blg. 22, which is indisputably a special law and as
such, is governed by Act No. 3326, as amended. She submits that a distinction should thus be made
between offenses covered by municipal ordinances or special laws, as in this case, and offenses
covered by the RPC.

The key issue raised in this petition is whether the filing of the affidavit-complaint for estafa and
violation of BP Blg. 22 against respondent with the Office of the City Prosecutor of Quezon City on
16 September 1997 interrupted the period of prescription of such offense.

We find merit in this petition.

Initially, we see that the respondent’s claim that the OSG failed to attach to the petition a duplicate
original or certified true copy of the 12 March 2002 decision of the CA and the required proof of
service is refuted by the record. A perusal of the record reveals that attached to the original copy of
the petition is a certified true copy of the CA decision. It was also observed that annexed to the
petition was the proof of service undertaken by the Docket Division of the OSG.

With regard to the main issue of the petition, we find that the CA reversively erred in ruling that the
offense committed by respondent had already prescribed. Indeed, Act No. 3326 entitled "An Act to
Establish Prescription for Violations of Special Acts and Municipal Ordinances and to Provide When
Prescription Shall Begin," as amended, is the law applicable to BP Blg. 22 cases. Appositely, the law
reads:

SECTION 1. Violations penalized by special acts shall, unless otherwise provided in such acts,
prescribe in accordance with the following rules: (a) xxx; (b) after four years for those punished by
imprisonment for more than one month, but less than two years; (c) xxx.

SECTION 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.

Since BP Blg. 22 is a special law that imposes a penalty of imprisonment of not less than thirty (30)
days but not more than one year or by a fine for its violation, it therefor prescribes in four (4) years in
accordance with the aforecited law. The running of the prescriptive period, however, should be tolled
upon the institution of proceedings against the guilty person.

In the old but oft-cited case of People v. Olarte,16 this Court ruled that the filing of the complaint in the
Municipal Court even if it be merely for purposes of preliminary examination or investigation, should,
and thus, interrupt the period of prescription of the criminal responsibility, even if the court where the
complaint or information is filed cannot try the case on the merits. This ruling was broadened by the
Court in the case of Francisco, et.al. v. Court of Appeals, et. al.17 when it held that the filing of the
complaint with the Fiscal’s Office also suspends the running of the prescriptive period of a criminal
offense.

Respondent’s contention that a different rule should be applied to cases involving special laws is
bereft of merit. There is no more distinction between cases under the RPC and those covered by
special laws with respect to the interruption of the period of prescription. The ruling in Zaldivia v.
Reyes, Jr.18 is not controlling in special laws. In Llenes v. Dicdican,19 Ingco, et al. v.
Sandiganbayan,20 Brillante v. CA,21 and Sanrio Company Limited v. Lim,22 cases involving special laws,
this Court held that the institution of proceedings for preliminary investigation against the accused
interrupts the period of prescription. In Securities and Exchange Commission v. Interport Resources
Corporation, et. al.,23 the Court even ruled that investigations conducted by the Securities and
Exchange Commission for violations of the Revised Securities Act and the Securities Regulations
Code effectively interrupts the prescription period because it is equivalent to the preliminary
investigation conducted by the DOJ in criminal cases.

In fact, in the case of Panaguiton, Jr. v. Department of Justice,24 which is in all fours with the instant
case, this Court categorically ruled that commencement of the proceedings for the prosecution of the
accused before the Office of the City Prosecutor effectively interrupted the prescriptive period for the
offenses they had been charged under BP Blg. 22. Aggrieved parties, especially those who do not
sleep on their rights and actively pursue their causes, should not be allowed to suffer unnecessarily
further simply because of circumstances beyond their control, like the accused’s delaying tactics or
the delay and inefficiency of the investigating agencies.

We follow the factual finding of the CA that "sometime in the latter part of 1995" is the reckoning date
of the commencement of presumption for violations of BP Blg. 22, such being the period within
which herein respondent was notified by private complainant of the fact of dishonor of the checks
and the five-day grace period granted by law elapsed.

The affidavit-complaints for the violations were filed against respondent on 16 September 1997. The
cases reached the MeTC of Quezon City only on 13 February 2000 because in the meanwhile,
respondent filed a civil case for accounting followed by a petition before the City Prosecutor for
suspension of proceedings on the ground of "prejudicial question". The matter was raised before the
Secretary of Justice after the City Prosecutor approved the petition to suspend proceedings. It was
only after the Secretary of Justice so ordered that the informations for the violation of BP Blg. 22
were filed with the MeTC of Quezon City.

Clearly, it was respondent’s own motion for the suspension of the criminal proceedings, which
motion she predicated on her civil case for accounting, that caused the filing in court of the 1997
initiated proceedings only in 2000.

As laid down in Olarte,25 it is unjust to deprive the injured party of the right to obtain vindication on
account of delays that are not under his control. The only thing the offended must do to initiate the
prosecution of the offender is to file the requisite complaint.

IN LIGHT OF ALL THE FOREGOING, the instant petition is GRANTED. The 12 March 2002
Decision of the Court of Appeals is hereby REVERSED and SET ASIDE. The Department of Justice
is ORDERED to re-file the informations for violation of BP Blg. 22 against the respondent.

SO ORDERED.
G.R. No. 169588 October 7, 2013

JADEWELL PARKING SYSTEMS CORPORATION represented by its manager and authorized

representative Norma Tan, Petitioner,
vs.
HON. JUDGE NELSON F. LIDUA SR., Presiding Judge of The Municipal Trial Court Branch 3,
Baguio City, BENEDICTO BALAJADIA, EDWIN ANG, "JOHN DOES" and "PETER
DOES" Respondents.

DECISION

LEONEN, J.:

We are asked to rule on this Petition for Review on Certiorari under Rule 45 of the Rules of Court,
praying that the assailed Decision of Branch 7 of the Regional Trial Court of Baguio City and Order
dated August 15, 2005 be reversed and that Criminal Case Nos. 112934 and 112935 be ordered
reinstated and prosecuted before the Municipal Trial Court of Baguio City.

Petitioner Jadewell Parking Systems Corporation is a private parking operator duly authorized to
operate and manage the parking spaces in Baguio City pursuant to City Ordinance 003-2000. It is
also authorized under Section 13 of the City Ordinance to render any motor vehicle immobile by
placing its wheels in a clamp if the vehicle is illegally parked.1

According to the Resolution of the Office of the Provincial Prosecutor, San Fernando City, La Union,
the facts leading to the filing of the Informations are the following:

Jadewell Parking Systems Corporation (Jadewell), thru [sic] its General Manager Norma Tan and
Jadewell personnel Januario S. Ulpindo and Renato B. Dulay alleged in their affidavit-complaint that
on May 17, 2003, the respondents in I.S No. 2003-1996 Edwin Ang, Benedicto Balajadia and John
Doe dismantled, took and carried away the clamp attached to the left front wheel of a Mitsubishi
Adventure with Plate No. WRK 624 owned by Edwin Ang. Accordingly, the car was then illegally
parked and left unattended at a Loading and Unloading Zone. The value of the clamp belonging to
Jadewell which was allegedly forcibly removed with a piece of metal is ₱26,250.00. The fines of
₱500.00 for illegal parking and the declamping fee of ₱500.00 were also not paid by the respondents
herein.

In I.S. No., 2003-1997, Jadewell thru [sic] its General Manager Norina C. Tan, Renato B. Dulay and
Ringo Sacliwan alleged in their affidavit-complaint that on May 7, 2003, along Upper Mabini Street,
Baguio City, herein respondents Benedicto Balajadia, Jeffrey Walan and two (2) John Does forcibly
removed the clamp on the wheel of a Nissan Cefiro car with Plate No. UTD 933, belonging to Jeffrey
Walan which was then considered illegally parked for failure to pay the prescribed parking fee. Such
car was earlier rendered immobile by such clamp by Jadewell personnel. After forcibly removing the
clamp, respondents took and carried it away depriving its owner, Jadewell, its use and value which is
₱26,250.00. According to complainants, the fine of ₱500.00 and the declamping fee of ₱500.00
were not paid by the respondents.2

The incident resulted in two cases filed by petitioner and respondents against each other. Petitioner
Jadewell filed two cases against respondents: Robbery under I.S. Nos. 2003-1996 and 2003-1997.
Petitioner filed an Affidavit-Complaint against respondents Benedicto Balajadia, Jeffrey Walan, and
three (3) John Does, one of whom was eventually identified as respondent Ramon Ang. The
Affidavit-Complaint was filed with the Office of the City Prosecutor of Baguio City on May 23,
2003.3 A preliminary investigation took place on May 28, 2003. Respondent Benedicto Balajadia
likewise filed a case charging Jadewell president, Rogelio Tan, and four (4) of Jadewell's employees
with Usurpation of Authority/Grave Coercion in I.S. No. 2003-1935.

In his Counter-affidavit for the two cases he filed for himself and on behalf of his co-respondents,
respondent Benedicto Balajadia denied that his car was parked illegally. He admitted that he
removed the clamp restricting the wheel of his car since he alleged that the placing of a clamp on the
wheel of the vehicle was an illegal act. He alleged further that he removed the clamp not to steal it
but to remove the vehicle from its clamp so that he and his family could continue using the car. He
also confirmed that he had the clamp with him, and he intended to use it as a piece of evidence to
support the Complaint he filed against Jadewell.4

In the Resolution5 of the Office of the Provincial Prosecutor of San Fernando City, La Union, Acting
City Prosecutor Mario Anacleto Banez found probable cause to file a case of Usurpation of Authority
against the petitioner. Regarding the case of Robbery against respondents, Prosecutor Banez stated
that:

We find no probable cause to charge respondents in these two (2) cases for the felony of Robbery.
The elements of Robbery, specifically the intent to gain and force upon things are absent in the
instant cases, thereby negating the existence of the crime.

xxxx

We, however, respectfully submit that the acts of respondents in removing the wheel clamps on the
wheels of the cars involved in these cases and their failure to pay the prescribed fees were in
violation of Sec. 21 of Baguio City Ordinance No. 003-2000 which prescribes fines and penalties for
violations of the provisions of such ordinance. Certainly, they should not have put the law into their
own hands. (Emphasis supplied)

WHEREFORE, premises considered, there is probable cause against all the respondents, except
Jeffrey Walan or Joseph Walan (who has been dragged into this controversy only by virtue of the
fact that he was still the registered owner of the Nissan Cefiro car) for violation of Section 21 of City
Ord. No. 003-2000 in both cases and we hereby file the corresponding informations against them in
Court.6

Prosecutor Banez issued this Resolution on July 25, 2003.

On October 2, 2003, two criminal Informations were filed with the Municipal Trial Court of Baguio
City dated July 25, 2003, stating:

That on May 17, 2003 at Baguio City and within the jurisdiction of this Honorable Court, the above-
named accused with unity of action and concerted design, did then and there, with unity of action
and concerted design, willfully, unlawfully and feloniously forcibly dismantled [sic] and took [sic] an
immobilizing clamp then attached to the left front wheel of a Mitsubishi Adventure vehicle with Plate
No. WRK 624 belonging to Edwin Ang which was earlier rendered immobilized by such clamp by
Jadewell Personnel's for violation of the Baguio City ordinance No. 003-2600 to the damage and
prejudice of private complainant Jadewell Parking System Corporation (Jadewell) which owns such
clamp worth ₱26,250.00 and other consequential damages.

CONTRARY TO LAW,
San Fernando City, La Union for Baguio City, this 25th day of July 2003.7

The cases were docketed as Criminal Case Nos. 112934 and 112935 with the Municipal Trial Court
of Baguio City, Branch 3. Respondent Benedicto Balajadia and the other accused through their
counsel Paterno Aquino filed a January 20, 2004 Motion to Quash and/or Manifestation8 on February
2, 2004. The Motion to Quash and/or Manifestation sought the quashal of the two Informations on
the following grounds: extinguishment of criminal action or liability due to prescription; failure of the
Information to state facts that charged an offense; and the imposition of charges on respondents
with more than one offense.

In their Motion to Quash, respondents argued that:

1. The accused in this case are charged with violation of Baguio City Ordinance No. 003-
2000.

2. Article 89 of the Revised Penal [sic] provides that criminal liability is totally extinguished by
prescription of the crime.

3. Act No. 3326, as amended by Act No. 3763, provides: "Section 1. x x x Violations
penalized by municipal ordinances shall prescribed [sic] after two months."

4. As alleged in the Information, the offense charged in this case was committed on May 7,
2003. 5. As can be seen from the right hand corner of the Information, the latter was filed
with this Honorable Court on October 2, 2003, almost five (5) months after the alleged
commission of the offense charged. Hence, criminal liability of the accused in this case, if
any, was already extinguished by prescription when the Information was filed.9

In an Order10 dated February 10, 2004, respondent Judge Nelson F. Lidua, Sr., Presiding Judge of
the Municipal Trial Court of Baguio City, Branch 3, granted the accused's Motion to Quash and
dismissed the cases.

Petitioner filed a Motion for Reconsideration on February 27, 2004 responding to the February 10,
2004 Order11 to argue among other points that:

6.b. For another, the offenses charged have not yet prescribed. Under the law, the period of
prescription of offenses shall be interrupted by the filing of the complaint or information. While it may
be true that the Informations in these cases have been filed only on October 2, 2003, the private
complainant has, however, filed its criminal complaint on May 23, 2003, well within the prescribed
period.12

Respondents filed their Opposition13 on March 24, 2004, and petitioner filed a Reply14 on April 1,
2004.

The respondent judge released a Resolution15 dated April 16, 2004 upholding the Order granting
respondents' Motion to Quash. The Resolution held that:

For the guidance of the parties, the Court will make an extended resolution on one of the ground
[sic] for the motion to quash, which is that the criminal action has been extinguished on grounds of
prescription.
These offenses are covered by the Rules on Summary Procedure being alleged violations of City
Ordinances.

Under Section 9 of the Rule [sic] on Summary Procedure, the running of the prescriptive period shall
be halted on the date the case is filed in Court and not on any date before that (Zaldivia vs. Reyes,
Jr. G.R. No. 102342, July 3, 1992, En Banc).

In case of conflict, the Rule on Summary Procedure as the special law prevails over Sec. 1 of Rule
110 of the Rules on Criminal Procedure and also Rule 110 of the Rules of Criminal Procedure must
yield to Act No. 3326 or "AN ACT TO ESTABLISH PERIODS OF PRESCRIPTION FOR
VIOLATIONS PENALIZED BY SPECIAL ACTS AND MUNICIPAL ORDINANCES AND TO
PROVIDE WHEN PRESCRIPTION SHALL BEGIN TO RUN" (Ibid).

Petitioner then filed a Petition16 for Certiorari under Rule 65 with the Regional Trial Court of Baguio
City. The case was raffled to Branch 7 of the Regional Trial Court of Baguio City. Petitioners
contended that the respondent judge committed grave abuse of discretion amounting to lack or
excess of jurisdiction in dismissing Criminal Case Nos. 112934 and 112935 on the ground of
prescription. Petitioners argued that the respondent judge ruled erroneously saying that the
prescriptive period for the offenses charged against the private respondents was halted by the filing
of the Complaint/Information in court and not when the Affidavit-Complaints were filed with the Office
of the City Prosecutor of Baguio City. Petitioner cited Section 1 of Rule 110 of the Rules on Criminal
Procedure:

x x x "criminal actions shall be instituted x x x in x x x other chartered cities, the complaint shall be
filed with the office of the prosecutor unless otherwise provided in their charter" and the last
paragraph thereof states that "the institution of the criminal action shall interrupt the running of the
period of prescription of the offense charged unless otherwise provided in special laws."17

Petitioner contended further that:

the filing of the criminal complaint with the Office of the City Prosecutor of Baguio City, not the filing
of the criminal information before this Honorable Court, is the reckoning point in determining whether
or not the criminal action in these cases had prescribed.

xxxx

The offenses charged in Criminal Case Nos. 112934 and 112935 are covered by the Revised Rules
on Summary Procedure, not by the old Rules on Summary Procedure. Considering that the offenses
charged are for violations of a City Ordinance, the criminal cases can only be commenced by
informations. Thus, it was only legally and procedurally proper for the petitioner to file its complaint
with the Office of the City Prosecutor of Baguio City as required by Section 11 of the new Rules on
Summary Procedure, these criminal cases "shall be commenced only by information." These
criminal cases cannot be commenced in any other way.

Moreover, the ruling of the Supreme Court in Zaldivia vs. Reyes cited in the assailed Resolution
does not apply in this case. The offense charged in Zaldivia is a violation of municipal ordinance in
which case, the complaint should have been filed directly in court as required by Section 9 of the old
Rules on Summary Procedure. On the other hand, Criminal Case Nos. 112934 and 112935 are for
violations of a city ordinance and as aforestated, "shall be commenced only by information."18
Thus, petitioner contended that the filing of the criminal complaint with the Office of the City
Prosecutor stopped the running of the two-month prescriptive period. Hence, the offenses charged
have not prescribed.

In their Comment,19 respondents maintained that the respondent judge did not gravely abuse his
discretion. They held that Section 2 of Act No. 3326, as amended, provides that:

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
proceeding 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.20 (Emphasis supplied)

Respondents argued that Zaldivia v. Reyes21 held that the proceedings mentioned in Section 2 of Act
No. 3326, as amended, refer to judicial proceedings . Thus, this Court, in Zaldivia, held that the filing
of the Complaint with the Office of the Provincial Prosecutor was not a judicial proceeding. The
prescriptive period commenced from the alleged date of the commission of the crime on May 7,
2003 and ended two months after on July 7, 2003. Since the Informations were filed with the
Municipal Trial Court on October 2, 2003, the respondent judge did not abuse its discretion in
dismissing Criminal Case Nos. 112934 and 112935.

In a Decision dated April 20, 2005, the Regional Trial Court of Baguio City Branch 7, through Judge
Clarence F. Villanueva, dismissed the Petition for Certiorari. The Regional Trial Court held that,
since cases of city ordinance violations may only be commenced by the filing of an Information, then
the two-month prescription period may only be interrupted by the filing of Informations (for violation
of City Ordinance 003-2000) against the respondents in court. The Regional Trial Court of Baguio
City, Branch 7, ruled in favor of the respondents and upheld the respondent judge’s Order dated
February 10, 2004 and the Resolution dated April 16, 2004.

Petitioners then filed a May 17, 2005 Motion for Reconsideration which was denied by the Regional
Trial Court in an August 15, 2005 Order.

Hence, this Petition.

The principal question in this case is whether the filing of the Complaint with the Office of the City
Prosecutor on May 23, 2003 tolled the prescription period of the commission of the offense charged
against respondents Balajadia, Ang, "John Does," and "Peter Does."

Petitioner contends that the prescription period of the offense in Act No. 3326, as amended by Act
No. 3763, does not apply because respondents were charged with the violation of a city ordinance
and not a municipal ordinance. In any case, assuming arguendo that the prescriptive period is
indeed two months, filing a Complaint with the Office of the City Prosecutor tolled the prescription
period of two months. This is because Rule 110 of the Rules of Court provides that, in Manila and in
other chartered cities, the Complaint shall be filed with the Office of the Prosecutor unless otherwise
provided in their charters.

In their Comment,22 respondents maintain that respondent Judge Lidua did not err in dismissing the
cases based on prescription. Also, respondents raise that the other grounds for dismissal they raised
in their Motion to Quash, namely, that the facts charged constituted no offense and that respondents
were charged with more than one offense, were sustained by the Metropolitan Trial Court. Also,
respondents argue that petitioner had no legal personality to assail the Orders, since Jadewell was
not assailing the civil liability of the case but the assailed Order and Resolution. This was contrary to
the ruling in People v. Judge Santiago23 which held that the private complainant may only appeal the
civil aspect of the criminal offense and not the crime itself.

In the Reply,24 petitioner argues that the respondent judge only dismissed the case on the ground of
prescription, since the Resolution dated April 16, 2004 only cited that ground. The Order dated
February 10, 2004 merely stated but did not specify the grounds on which the cases were
dismissed. Petitioner also maintains that the proceedings contemplated in Section 2 of Act No. 3326
must include the preliminary investigation proceedings before the National Prosecution Service in
light of the Rules on Criminal Procedure25 and Revised Rules on Summary Procedure.

Lastly, petitioner maintains that it did have legal personality, since in a Petition for Certiorari,
"persons aggrieved x x x may file a verified petition"26 before the court.

The Petition is denied.

The resolution of this case requires an examination of both the substantive law and the procedural
rules governing the prosecution of the offense. With regard to the prescription period, Act No. 3326,
as amended, is the only statute that provides for any prescriptive period for the violation of special
laws and municipal ordinances. No other special law provides any other prescriptive period, and the
law does not provide any other distinction. Petitioner may not argue that Act No. 3326 as amended
does not apply.

In Romualdez v. Hon. Marcelo,27 this Court defined the parameters of prescription:

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.28 (Citation omitted)

With regard to the period of prescription, it is now without question that it is two months for the
offense charged under City Ordinance 003-2000.

The commencement of the prescription period is also governed by statute. Article 91 of the Revised
Penal Code reads:

Art. 91. Computation of prescription of offenses. — The period of prescription shall commence to run
from the day on which the crime is discovered by the offended party, the authorities, or their agents,
and shall be interrupted by the filing of the complaint or information, and shall commence to run
again when such proceedings terminate without the accused being convicted or acquitted, or are
unjustifiably stopped for any reason not imputable to him.

The offense was committed on May 7, 2003 and was discovered by the attendants of the petitioner
on the same day. These actions effectively commenced the running of the prescription period.

The procedural rules that govern this case are the 1991 Revised Rules on Summary Procedure.

SECTION 1. Scope – This rule shall govern the summary procedure in the Metropolitan Trial Courts,
the Municipal Trial Courts in Cities, the Municipal Trial Courts, and the Municipal Circuit Trial Courts
in the following cases falling within their jurisdiction:
 xxxx

B. Criminal Cases:

(1) Violations of traffic laws, rules and regulations;

(2) Violations of the rental law;

(3) Violations of municipal or city ordinances (Emphasis supplied)

Section 11 of the Rules provides that:

Sec. 11. How commenced. — The filing of criminal cases falling within the scope of this Rule shall
be either by complaint or by information: Provided, however, that in Metropolitan Manila and in
Chartered Cities, such cases shall be commenced only by information, except when the offense
cannot be prosecuted de officio.

The Local Government Code provides for the classification of cities. Section 451 reads:

SEC. 451. Cities, Classified. – A city may either be component or highly urbanized: Provided,
however, that the criteria established in this Code shall not affect the classification and corporate
status of existing cities. Independent component cities are those component cities whose charters
prohibit their voters from voting for provincial elective officials. Independent component cities shall
be independent of the province.

Cities in the Philippines that were created by law can either be highly urbanized cities or component
cities. An independent component city has a charter that proscribes its voters from voting for
provincial elective officials. It stands that all cities as defined by Congress are chartered cities. In
cases as early as United States v. Pascual Pacis,29 this Court recognized the validity of the Baguio
Incorporation Act or Act No. 1963 of 1909, otherwise known as the charter of Baguio City.

As provided in the Revised Rules on Summary Procedure, only the filing of an Information tolls the
prescriptive period where the crime charged is involved in an ordinance. The respondent judge was
correct when he applied the rule in Zaldivia v. Reyes.

In Zaldivia v. Reyes, the violation of a municipal ordinance in Rodriguez, Rizal also featured similar
facts and issues with the present case. In that case, the offense was committed on May 11, 1990.
The Complaint was received on May 30, 1990, and the Information was filed with the Metropolitan
Trial Court of Rodriguez on October 2, 1990. This Court ruled that:

As it is clearly provided in the Rule on Summary Procedure that among the offenses it covers are
violations of municipal or city ordinances, it should follow that the charge against the petitioner,
which is for violation of a municipal ordinance of Rodriguez, is governed by that rule and not Section
1 of Rule 110.

Where paragraph (b) of the section does speak of "offenses falling under the jurisdiction of the
Municipal Trial Courts and Municipal Circuit Trial Courts," the obvious reference is to Section 32(2)
of B.P. No. 129, vesting in such courts:

(2) Exclusive original jurisdiction over all offenses punishable with imprisonment of not exceeding
four years and two months, or a fine of not more than four thousand pesos, or both such fine and
imprisonment, regardless of other imposable accessory or other penalties, including the civil liability
arising from such offenses or predicated thereon, irrespective of kind, nature, value, or amount
thereof; Provided, however, That in offenses involving damage to property through criminal
negligence they shall have exclusive original jurisdiction where the imposable fine does not exceed
twenty thousand pesos.

These offenses are not covered by the Rules on Summary Procedure.

Under Section 9 of the Rules on Summary Procedure, "the complaint or information shall be filed
directly in court without need of a prior preliminary examination or preliminary investigation." Both
parties agree that this provision does not prevent the prosecutor from conducting a preliminary
investigation if he wants to. However, the case shall be deemed commenced only when it is filed in
court, whether or not the prosecution decides to conduct a preliminary investigation. This means that
the running of the prescriptive period shall be halted on the date the case is actually filed in court
and not on any date before that.

This interpretation is in consonance with the afore-quoted Act No. 3326 which says that the period of
prescription shall be suspended "when proceedings are instituted against the guilty party." The
proceedings referred to in Section 2 thereof are "judicial proceedings," contrary to the submission of
the Solicitor General that they include administrative proceedings. His contention is that we must not
distinguish as the law does not distinguish. As a matter of fact, it does.

At any rate, the Court feels that if there be a conflict between the Rule on Summary Procedure and
Section 1 of Rule 110 of the Rules on Criminal Procedure, the former should prevail as the special
law. And if there be a conflict between Act No. 3326 and Rule 110 of the Rules on Criminal
Procedure, the latter must again yield because this Court, in the exercise of its rule-making power, is
not allowed to "diminish, increase or modify substantive rights" under Article VIII, Section 5(5) of the
Constitution. Prescription in criminal cases is a substantive right.30

Jurisprudence exists showing that when the Complaint is filed with the Office of the Prosecutor who
then files the Information in court, this already has the effect of tolling the prescription period. The
recent People v. Pangilinan31 categorically stated that Zaldivia v. Reyes is not controlling as far as
special laws are concerned. Pangilinan referred to other cases that upheld this principle as well.
However, the doctrine of Pangilinan pertains to violations of special laws but not to ordinances.

There is no distinction between the filing of the Information contemplated in the Rules of Criminal
Procedure and in the Rules of Summary Procedure. When the representatives of the petitioner filed
the Complaint before the Provincial Prosecutor of Baguio, the prescription period was running. It
continued to run until the filing of the Information. They had two months to file the Information and
institute the judicial proceedings by filing the Information with the Municipal Trial Court. The conduct
of the preliminary investigation, the original charge of Robbery, and the subsequent finding of the
violation of the ordinance did not alter the period within which to file the Information. Respondents
were correct in arguing that the petitioner only had two months from the discovery and commission
of the offense before it prescribed within which to file the Information with the Municipal Trial Court.

Unfortunately, when the Office of the Prosecutor filed the Informations on October 5, 2003, the
period had already prescribed. Thus, respondent Judge Nestor Lidua, Sr. did not err when he
ordered the dismissal of the case against respondents. According to the Department of Justice –
National Prosecutors Service Manual for Prosecutors, an Information is defined under Part I, Section
5 as:
SEC. 5. Information. - An information is the accusation in writing charging a person with an offense,
subscribed by the prosecutor, and filed with the court. The information need not be placed under
oath by the prosecutor signing the same.

The prosecutor must, however, certify under oath that –

a) he has examined the complainant and his witnesses;

b) there is reasonable ground to believe that a crime has been committed and that the
accused is probably guilty thereof;

c) the accused was informed of the complaint and of the evidence submitted against him;
and

d) the accused was given an opportunity to submit controverting evidence.

As for the place of the filing of the Information, the Manual also provides that:

SEC. 12. Place of the commission of offense. - The complaint or information is sufficient if it states
that the crime charged was committed or some of the ingredients thereof occurred at some place
within the jurisdiction of the court, unless the particular place in which the crime was committed is an
essential element of the crime, e.g. in a prosecution for violation of the provision of the Election
Code which punishes the carrying of a deadly weapon in a "polling place," or if it is necessary to
identify the offense charged, e.g., the domicile in the offense of "violation of domicile."

Finally, as for the prescription period, the Manual provides that:

SEC. 20. How Period of Prescription Computed and Interrupted. - For an offense penalized under
the Revised Penal Code, the period of prescription commences to run from the day on which the
crime is discovered by the offended party, the authorities, or their agents, and shall be interrupted:

a) by the filing of the complaint with the Office of the City/Provincial Prosecutor; or with the
Office of the Ombudsman; or

b) by the filing of the complaint or information with the court even if it is merely for purposes
of preliminary examination or investigation, or even if the court where the complaint or
information is filed cannot try the case on its merits.

However, for an offense covered by the Rules on Summary Procedure, the period of prescription is
interrupted only by the filing of the complaint or information in court.

xxxx

For violation of a special law or ordinance, the period of prescription shall commence to run from the
day of the commission of the violation, and if the same is not known at the time, from the discovery
and the institution of judicial proceedings for its investigation and punishment. The prescription shall
be interrupted only by the filing of the complaint or information in court and shall begin to run again if
the proceedings are dismissed for reasons not constituting double jeopardy. (Emphasis supplied). 1âw phi1

Presidential Decree No. 127532 reorganized the Department of Justice’s Prosecution Staff and
established Regional State Prosecution Offices. These Regional State Prosecution Offices were
assigned centers for particular regions where the Informations will be filed. Section 6 provides that
the area of responsibility of the Region 1 Center located in San Fernando, La Union includes Abra,
Benguet, Ilocos Norte, Ilocos Sur, La Union, Mt. Province, Pangasinan, and the cities of Baguio,
Dagupan, Laoag, and San Carlos.

The Regional Prosecutor for Region 1 or his/her duly assigned prosecutor was designated to file the
Information within the two-month period provided for in Act No. 3326, as amended. 1âwphi1

The failure of the prosecutor to seasonably file the Information is unfortunate as it resulted in the
dismissal of the case against the private respondents. It stands that the doctrine of Zaldivia is
applicable to ordinances and their prescription period. It also upholds the necessity of filing the
Information in court in order to toll the period. Zaldivia also has this to say concerning the effects of
its ruling:

The Court realizes that under the above interpretation, a crime may prescribe even if the complaint
is filed seasonably with the prosecutor's office if, intentionally or not, he delays the institution of the
necessary judicial proceedings until it is too late. However, that possibility should not justify a
misreading of the applicable rules beyond their obvious intent as reasonably deduced from their
plain language.

The remedy is not a distortion of the meaning of the rules but a rewording thereof to prevent the
problem here sought to be corrected.33

WHEREFORE the Petition is DENIED.

SO ORDERED.
G.R. No. 217777

PRISCILLA Z. ORBE, Petitioner,

vs.
LEONORA O. MIARAL,, Respondent.

DECISION

CARPIO, J.:

The Case

This petition for review on certiorari1 under Rule 45 of the Rules of Court seeks to annul the 24
September 2014 Decision2 and the 24 March 2015 Resolution3 of the Court of Appeals in CA-G.R.
SP No. 134555, which annulled and set aside the 27 August 20134 and 7 January 20145 Orders of
the Regional Trial Court (RTC) of Quezon City, Branch 104.

The RTC Orders denied the Motion to Withdraw Information6 for Estafa filed by Quezon City
Prosecutor Donald T. Lee in Criminal Case Q- 12-174206, entitled People of the Philippines v.
Leonora O. Miaral, et al.

The Facts

On 6 March 1996, Leonora O. Miaral (respondent) agreed to engage in the garment exportation
business with her sister, Priscilla Z. Orbe (petitioner). They executed a partnership
agreement7 where they agreed to contribute Two Hundred Fifty Thousand Pesos (₱250,000.00)
each to Toppy Co., Inc. and Miaral Enterprises, and to equally divide the profits they may earn. The
partnership agreement reads:

Agreement

Agreement is executed [on the] 6111 day of March 1996 by:

Mrs. Nora 0. Miaral

11-0 Legaspi Towers, R[o]xas Blvd., Mla.
as (Party [A])

and Mrs. Priscilla Orbe of No._, Villa

Verde Subd., Novaliches, Quezon City
as (Party B).

Both parties agreed on the ff:

Both parties A & B shall invest ₱250,000.00 each in cash & or goods into a buying & selling of stock
lots of garments to be exported to the United States particularly in Los Angeles, California.
Authorized purchaser may be Party A or B;

That the exportation of garments shall be done by Toppy Co., Inc. using Toppy’s available quota;
That the importation of garments shall be done by Miaral Enterprises in U.S.A.

That whatever income in sales both retail & wholesale shall be divided into equal share after
deducting all expenses in export & import including taxes & sea/air freight expenses in connection
with the buying and selling of stocks & garments.

That this Contract is renewable yearly as both parties may wish.

Conforme:

(Sgd.) (Sgd.)
Party A Party B

Signed in the presence of

Petitioner initially invested the amount of One Hundred Eighty-Three Thousand Nine Hundred
Ninety-Nine Pesos (₱183,999.00).8 She subsequently tendered the amount of Twenty Thousand
Pesos (₱20,000.00) for the payment of salaries of the workers at the factory.9

On one trip to the United States of America in April of 1996, respondent told petitioner that petitioner
could join respondent, her daughter Anne Kristine, and her granddaughter Ara in the trip to the
United States. Respondent convinced petitioner to pay for the plane tickets of respondent, Anne
Kristine and Ara amounting to Two Thousand Seventy One Dollars (US$2,071.00) with a promise to
pay petitioner once they arrive in the United States.10

Upon arrival, respondent issued three (3) checks drawn in a bank in the United States as payment.
However, one of the checks was dishonored for having been drawn against insufficient
funds.11 Petitioner likewise discovered that there was no exportation of garments to the United States
or any other transactions in the United States that took place.

Petitioner demanded from respondent and Anne Kristine the total payment of Two Hundred Three
Thousand Nine Hundred Ninety-Nine Pesos (₱203,999.00) and One Thousand Dollars
(US$1,000.00). Despite demands, respondent and Anne Kristine failed to return the money.12

On 7 February 2011, petitioner filed a complaint13 for estafa against respondent and Anne Kristine
before the Office of the City Prosecutor (OCP) of Quezon City.

In their counter-affidavit,14 respondent and Anne Kristine denied petitioner's allegations and claimed,
among others, that the partnership agreement they entered into rules out a successful prosecution
for estafa. They also claimed that the action had already prescribed since the complaint was filed 15
years after the agreement. They contended that it was petitioner who owed them the amount of Two
Hundred Seven Thousand Eighty-Seven Pesos and Sixty-Five Centavos (₱207,087.65) because
she issued several checks in the name of respondent and Anne Kristine. Lastly, they alleged that
Anne Kristine could not be held liable because she was merely acting under her mother's direction.
In her reply-affidavit,15 petitioner claimed that the twenty-four (24) checks amounting to Two Hundred
Seven Thousand Eighty-Seven Pesos and Sixty-Five Centavos (₱207,087.65) were only borrowed
from her as an accommodation party, and that it was respondent who ordered her to close her
account with the Republic Planters Bank.

The OCP of Quezon City issued a Resolution dated 15 July 2011,16 the dispositive portion of which
reads:

WHEREFORE, it is respectfully recommended that, upon approval of this Resolution, the attached
Information for Estafa under Article 315, paragraph 2(a) of the Revised Penal Code be filed against
respondents Leonora O. Miaral and Anne Kristine O. Miaral.17

Respondent and Anne Kristine filed a Motion for Reconsideration with Motion for Inhibition18 dated 27
January 2012, on the ground that petitioner failed to establish the elements of the crime charged.
Subsequently, they filed a Motion to Suspend Proceedings and to Lift/Recall Warrant of Arrest19 on
14 February 2012.

On 10 August 2012, the OCP of Quezon. City issued a Resolution resolving the Motion for
Reconsideration with Motion for Inhibition filed by respondent and Anne Kristine, assailing the 15
July 2011 Resolution, the dispositive portion of which reads:

Premises considered, the resolution dated July 15, 2011 is hereby set aside on the ground that the
transaction between the parties is civil in nature. The attached Motion to Withdraw Information
against movants in Crim. Case No. Q-12-174206 is to be filed in court for the purpose.20

Accordingly, the City Prosecutor filed with the RTC a Motion to Withdraw Information.21 On 27 August
2013, the RTC issued an Order22 denying the Motion to Withdraw Information, and directing the
arraignment of respondent and Anne Kristine.

On 14 October 2013, respondent and Anne Kristine moved for the reconsideration of said
Order.23 On 30 October 2013, petitioner filed her corresponding comment,24 contending that the
alleged partnership entered into by the parties merely existed on paper. In fact, respondent and
Anne Kristine deceived her into contributing substantial sums of money for a sham investment. The
Motion for Reconsideration was denied by the RTC in its Order dated 7 January 2014.25

The Ruling of the Court of Appeals

On 25 March 2014, respondent filed with the Court of Appeals a Petition for Certiorari26 under Rule
65 of the Rules of Court, assailing the Orders of the RTC dated 27 August 2013 and 7 January
2014. In its Decision27 dated 24 September 2014, the Court of Appeals granted the petition, and
reversed and set aside the assailed Orders of the RTC. It further directed the RTC to issue an order
for the withdrawal of the Information for estafa against respondent and Anne Kristine.28

Petitioner filed a Motion for Reconsideration29 dated 18 October 2014 which was denied by the Court
of Appeals on 24 March 2015.30

Hence, this petition.

The Issues

Petitioner presents the following issues in this petition:

1. Whether the Court of Appeals committed reversible error in ruling that the RTC committed grave
abuse of discretion amounting to lack or excess of jurisdiction;

2. Whether the Court of Appeals committed reversible error in reversing and setting aside the 27
August 2013 and 7 January 2014 Orders of the RTC, and in directing the issuance of an Order for
the Withdrawal of the Information for estafa against respondent and Anne Kristine; and

3. Whether the action for estafa penalized under Article 315 2(a) of the Revised Penal Code has
been barred by prescription.

The Ruling

The petition is meritorious.

The Court of Appeals erred in overturning

the Orders of the RTC and in ruling that the
RTC gravely abused its discretion when it
denied the Motion to Withdraw Information.

Under Section 5, Rule 110 of the Rules of Court, all criminal actions commenced by a complaint or
information shall be prosecuted under the direction and control of the prosecutor. As the
representative of the State, the public prosecutor determines in a preliminary investigation whether
there is probable cause that the accused committed a crime.31 Probable cause is defined as "such
facts and circumstances that will engender a well-founded belief that a crime has been committed
and that respondent is probably guilty thereof, and should be held for trial."32

The general rule is that in the conduct of a preliminary investigation, the prosecutor is given a wide
latitude of discretion to determine what constitutes sufficient evidence as will establish probable
cause.33 However, when the respondent establishes that the prosecutor committed grave abuse of
discretion amounting to lack or excess of jurisdiction in determining whether there is probable cause,
the courts may interfere. Under the doctrine of separation of powers, the courts have no right to
decide matters where full discretionary authority has been delegated to the Executive Branch, or to
substitute their own judgements for that of the. Executive Branch, in the absence of grave abuse of
discretion.34 The abuse of discretion must be "so patent and gross as to amount to an evasion of a
positive duty or a virtual refusal to perform a duty enjoined by law or to act at all in contemplation of
law, such as where the power is exercised in an arbitrary or despotic manner by reason of passion
or hostility."35

In this case, the OCP found that no probable cause existed against respondent and Anne Kristine for
the commission of the crime of estafa. In its Resolution36 dated 10 August 2012, relying mainly on the
case of United States v. Clarin,37 the OCP found that there was a partnership agreement between the
parties, thus resolving that the failure of a partner to account for partnership funds may only give rise
to a civil obligation, not a criminal case for estafa. The OCP held:

After a careful and more circumspect evaluation of the evidence on record in relation to the issues in
the Motion for Reconsideration, provisions of law involved and pertinent jurisprudence on the matter,
we find the existence of a partnership agreement between complainant and her sister, respondent
Leonora O. Miaral to have been duly established. The Agreement signed by them on March 6, 1996
clearly speaks for itself, among others a ₱250,000.00 investment each with equal profit sharing
minus all expenses. It also defined in unequivocal terms the buy and sell business, exporting of
garments to be undertaken by respondent Leonora Miaral’s Toppy Co. Inc. and importation of
garments by Miaral Enterprises in the United States.
Such being the case, Estafa either by means of deceit or misappropriation will not lie against
respondents, because "partners are not liable for estafa of money or property received for the
partnership when the business commenced and profits accrued." (U.S. vs. Clarin, 17 P[h]il. 85). It
was further held in said case that "when two or more persons bind themselves to contribute money,
property or industry to a common fund, with the intention of dividing the profits among themselves, a
contract is formed which is a partnership."

Furthermore, "failure of a partner to account for partnership funds may give rise to a civil obligation
only not estafa." (People vs. Alegre, Jr., C.A. 48 O.G. 5341) x x x.38

We disagree with the ruling of the Court of Appeals when it sustained the OCP on the issue of
whether there is probable cause to file an Information. The OCP was in the best position to
determine whether or not there was probable cause that the crime of estafa was committed.
However, the OCP erred gravely, amounting to grave abuse of discretion, when it applied United
States v. Clarin39 as basis for dismissing the complaint for lack of probable cause. United States v.
Clarin has already been superseded by Liwanag v. Court of Appeals.40

In Clarin, four individuals entered into a contract of partnership for the business of buying and
selling mangoes. When one of the partners demanded from the other three the return of his
monetary contribution, this Court ruled that "the action that lies with the [capitalist] partner x x x for
the recovery of his money is not a criminal action for estafa, but a civil one arising from the
partnership contract for a liquidation of the partnership and a levy on its assets, if there should be
any."41 Simply put, if a partner demands his money back, the duty to return the contribution does not
devolve on the other partners; the duty now belongs to the partnership itself as a separate and
distinct personality.

In 1997, a case with similar circumstances was decided differently. In Liwanag v. Court of
Appeals,42 three individuals entered into a contract of partnership for the business of buying and
selling cigarettes. They agreed that one would contribute money to buy the cigarettes while the
other two would act as agents in selling. When the capitalist partner demanded from the industrial
partners her monetary contribution because they stopped informing her of business updates, this
time, this Court held the industrial partners liable for estafa.

In this case, the OCP erred gravely when it based its conclusion on the Clarin case. Liwanag applies
to the partnership agreement executed between petitioner and respondent. Petitioner's initial
contributions of ₱183,999.00 and ₱20,000.00 were all for specific purposes: for the buying and
selling of garments and for the salaries of the factory workers, respectively. When respondent
failed to account for these amounts or to return these amounts to petitioner upon demand, there is
probable cause to hold that respondent misappropriated the amounts and had not used them for
their intended purposes. The Information for estafa should thus proceed.

In Liwanag, this Court held:

Thus, even assuming that a contract of partnership was indeed entered into by and between the
parties, we have ruled that when money or property [had] been received by a partner for a
specific purpose (such as that obtaining in the instant case) and he later misappropriated it,
such partner is guilty of estafa.43 (Emphasis supplied)

Furthermore, the RTC made its own independent assessment whether or not probable cause exists
that the crime was committed by respondent and Anne Kristine. When the RTC is confronted with a
Motion to Withdraw Information on the ground of lack of probable cause, its duty is to make an
independent assessment of the totality of the evidence presented by both parties, including
affidavits, counter-affidavits, evidence appended to the complaint, and records produced by the OCP
on court order.44 "Independent assessment" does not mean mere approval or disapproval of the
prosecution's stand; it also means that the RTC must itself be convinced that indeed there is or there
is no sufficient evidence against the accused.45

Both the 27 August 2013 and 7 January 2014 Orders of the RTC were based on facts and
allegations of both parties. The RTC held:

From the evidence adduced by the parties, the Court finds that there is probable cause that the
crime charged was committed by the accused when they convinced the complainant to invest money
in a business partnership which appears to be non-existent. It was not controverted that Leonora
received the total amount of ₱183,999.00 from the complainant. Accused failed to present
evidence to show the existence of a business partnership apart from relying on the
Agreement dated March 6, 1996. Neither was there any evidence presented showing that
complainant's money was used to purchase garments to be sold abroad. Basic is the rule that
one who alleges must prove. In this case, the accused failed to establish, by clear and convincing
evidence, their defense of partnership.46 (Emphasis supplied)

The question is not so much whether the RTC has the authority to grant or not to grant the OCP's
Motion to Withdraw Information, because it has such authority, but whether, in the exercise of that
authority, the RTC acted justly and fairly.47 This Court finds that it did.

The action for estafa penalized under paragraph 2(a),

Article 315 of the Revised Penal Code
has not yet been barred by prescription.

Under Article 315 of the Revised Penal Code, the penalty for estafa shall be determined by the
amount allegedly swindled by the accused. The first paragraph of Article 315 reads:

ART. 315. Swindling (estafa). - Any person who shall defraud another by any of the means
mentioned hereinbelow shall be punished by:

1st. The penalty of prision correccional in its maximum period to prision mayor in its minimum period,
if the amount of the fraud is over 12,000 pesos but does not exceed 22,000 pesos; and if such
amount exceeds the latter sum, the penalty provided in this paragraph shall be imposed in its
maximum period, adding one year for each additional 10,000 pesos; but the total
penalty which may be imposed shall not exceed twenty years. In such cases, and in connection
with the accessory penalties which may be imposed under the provisions of this Code, the penalty
shall be termed prision mayor or reclusion temporal, as the case may be. (Emphasis supplied)

The total amount allegedly swindled by respondent is ₱203,999.00 for the buying of garments and
workers' salaries plus US$ 1,000.00for the plane tickets which exceeds ₱22,000.00. Taking into
consideration the whole amount with the additional one year for each additional ₱10,000.00, the
penalty imposable on respondent shall be prision mayor in its maximum period to reclusion
temporal, the total penalty not exceeding twenty (20) years.

Under Article 25 of the Revised Penal Code, the penalties of prision mayor and reclusion
temporal are included in the enumeration of afflictive penalties. Furthermore, Article 90 of the
1âwphi 1

Revised Penal Code states that crimes punishable by afflictive penalties, such as the crime of
estafa, prescribe in fifteen (15) years.

The said prescriptive period is computed under Article 91 of the Revised Penal Code, as follows:
ART. 91. Computation of prescription of offenses. - The period of prescription shall commence to run
from the day on which the crime is discovered by the off ended party, the authorities, or their agents,
and shall be interrupted by the filing of the complaint or information, and shall commence to run
again when such proceedings terminate without the accused being convicted or acquitted, or are
unjustifiably stopped for any reason not imputable to him.

xxxx

In this case, the fifteen-year prescriptive period commenced in April 1996 when the petitioner
discovered that one of the checks that respondent issued as payment was dishonored for having
been drawn against insufficient funds. At around that time, petitioner likewise discovered that there
was no buying, selling and exportation of garments or any other transactions that took place in the
United States.

The fifteen-year period was interrupted on 7 February 2011 when petitioner filed a complaint for
estafa against respondent and Anne Kristine before the OCP of Quezon City. In People v.
Olarte,48 "the filing of the complaint, even if it be merely for purposes of preliminary examination or
investigation, should and does interrupt the period of prescription of the criminal responsibility, even
if the court where the complaint or information is filed cannot try the case on its merits."

As of the filing of the complaint on 7 February 2011, the prescriptive period had run for fourteen (14)
years and ten (10) months. Thus, the fifteen-year period has not yet prescribed.

WHEREFORE, we GRANT the petition. We REVERSE the 24 September 2014 Decision and the 24
March 2015 Resolution of the Court of Appeals in CA-G.R. SP No. 134555. We REINSTATE the
Orders of the Regional Trial Court of Quezon City, Branch 104, dated 27 August 2013 and 7 January
2014, directing the arraignment of Leonora 0. Miaral and Anne Kristine Miaral. The case against
Leonora O. Miaral and Anne Kristine Miaral may still proceed because prescription has not set in.

SO ORDERED.
 CIVIL LIABILITY

Chapter One
PERSON CIVILLY LIABLE FOR FELONIES

Article 100. Civil liability of a person guilty of felony. - Every person criminally liable for a felony is
also civilly liable.

Article 101. Rules regarding civil liability in certain cases. - The exemption from criminal liability
established in subdivisions 1, 2, 3, 5 and 6 of Article 12 and in subdivision 4 of Article 11 of this
Code does not include exemption from civil liability, which shall be enforced subject to the following
rules:

First. In cases of subdivisions 1, 2, and 3 of Article 12, the civil liability for acts committed by an
imbecile or insane person, and by a person under nine years of age, or by one over nine but under
fifteen years of age, who has acted without discernment, shall devolve upon those having such
person under their legal authority or control, unless it appears that there was no fault or negligence
on their part.

Should there be no person having such insane, imbecile or minor under his authority, legal
guardianship or control, or if such person be insolvent, said insane, imbecile, or minor shall respond
with their own property, excepting property exempt from execution, in accordance with the civil law.

Second. In cases falling within subdivision 4 of Article 11, the persons for whose benefit the harm
has been prevented shall be civilly liable in proportion to the benefit which they may have received.

The courts shall determine, in sound discretion, the proportionate amount for which each one shall
be liable.

When the respective shares cannot be equitably determined, even approximately, or when the
liability also attaches to the Government, or to the majority of the inhabitants of the town, and, in all
events, whenever the damages have been caused with the consent of the authorities or their agents,
indemnification shall be made in the manner prescribed by special laws or regulations.

Third. In cases falling within subdivisions 5 and 6 of Article 12, the persons using violence or causing
the fears shall be primarily liable and secondarily, or, if there be no such persons, those doing the
act shall be liable, saving always to the latter that part of their property exempt from execution.

Article 102. Subsidiary civil liability of innkeepers, tavernkeepers and proprietors of

establishments. - In default of the persons criminally liable, innkeepers, tavernkeepers, and any
other persons or corporations shall be civilly liable for crimes committed in their establishments, in all
cases where a violation of municipal ordinances or some general or special police regulation shall
have been committed by them or their employees.

Innkeepers are also subsidiarily liable for the restitution of goods taken by robbery or theft within
their houses from guests lodging therein, or for the payment of the value thereof, provided that such
guests shall have notified in advance the innkeeper himself, or the person representing him, of the
deposit of such goods within the inn; and shall furthermore have followed the directions which such
innkeeper or his representative may have given them with respect to the care and vigilance over
such goods. No liability shall attach in case of robbery with violence against or intimidation of
persons unless committed by the innkeeper's employees.
Article 103. Subsidiary civil liability of other persons. - The subsidiary liability established in the next
preceding article shall also apply to employers, teachers, persons, and corporations engaged in any
kind of industry for felonies committed by their servants, pupils, workmen, apprentices, or employees
in the discharge of their duties.

Chapter Two
WHAT CIVIL LIABILITY INCLUDES

Article 104. What is included in civil liability. - The civil liability established in Articles 100, 101, 102,
and 103 of this Code includes:

1. Restitution;

2. Reparation of the damage caused;

3. Indemnification for consequential damages.

Article 105. Restitution; How made. - The restitution of the thing itself must be made whenever
possible, with allowance for any deterioration, or diminution of value as determined by the court.

The thing itself shall be restored, even though it be found in the possession of a third person who
has acquired it by lawful means, saving to the latter his action against the proper person, who may
be liable to him.

This provision is not applicable in cases in which the thing has been acquired by the third person in
the manner and under the requirements which, by law, bar an action for its recovery.

Article 106. Reparation; How made. - The court shall determine the amount of damage, taking into
consideration the price of the thing, whenever possible, and its special sentimental value to the
injured party, and reparation shall be made accordingly.

Article 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.

Article 108. Obligation to make restoration, reparation for damages, or indemnification for
consequential damages and actions to demand the same; Upon whom it devolves. - The obligation
to make restoration or reparation for damages and indemnification for consequential damages
devolves upon the heirs of the person liable.

The action to demand restoration, reparation, and indemnification likewise descends to the heirs of
the person injured.

Article 109. Share of each person civilly liable. - If there are two or more persons civilly liable for a
felony, the courts shall determine the amount for which each must respond.

Article 110. Several and subsidiary liability of principals, accomplices and accessories of a felony;
Preference in payment. - Notwithstanding the provisions of the next preceding article, the principals,
accomplices, and accessories, each within their respective class, shall be liable severally (in
solidum) among themselves for their quotas, and subsidiaries for those of the other persons liable.
The subsidiary liability shall be enforced, first against the property of the principals; next, against that
of the accomplices, and, lastly, against that of the accessories.

Whenever the liability in solidum or the subsidiary liability has been enforced, the person by whom
payment has been made shall have a right of action against the others for the amount of their
respective shares.

Article 111. Obligation to make restitution in certain cases. - Any person who has participated
gratuitously in the proceeds of a felony shall be bound to make restitution in an amount equivalent to
the extent of such participation.

Chapter Three
EXTINCTION AND SURVIVAL OF CIVIL LIABILITY

Article 112. Extinction of civil liability. - Civil liability established in Articles 100, 101, 102, and 103 of
this Code shall be extinguished in the same manner as obligations, in accordance with the
provisions of the Civil Law.

Article 113. Obligation to satisfy civil liability. - Except in case of extinction of his civil liability as
provided in the next preceding article the offender shall continue to be obliged to satisfy the civil
liability resulting from the crime committed by him, notwithstanding the fact that he has served his
sentence consisting of deprivation of liberty or other rights, or has not been required to serve the
same by reason of amnesty, pardon, commutation of sentence or any other reason.

BOOK TWO

G.R. No. 180016 April 29, 2014

LITO CORPUZ, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

PERALTA, J.:

This is to resolve the Petition for Review on Certiorari, under Rule 45 of the Rules of Court, dated
November 5, 2007, of petitioner Lito Corpuz (petitioner), seeking to reverse and set aside the
Decision1 dated March 22, 2007 and Resolution2 dated September 5, 2007 of the Court of Appeals
(CA), which affirmed with modification the Decision3 dated July 30, 2004 of the Regional Trial Court
(RTC), Branch 46, San Fernando City, finding the petitioner guilty beyond reasonable doubt of the
crime of Estafa under Article 315, paragraph (1), sub-paragraph (b) of the Revised Penal Code.

The antecedent facts follow.

Private complainant Danilo Tangcoy and petitioner met at the Admiral Royale Casino in Olongapo
City sometime in 1990. Private complainant was then engaged in the business of lending money to
casino players and, upon hearing that the former had some pieces of jewelry for sale, petitioner
approached him on May 2, 1991 at the same casino and offered to sell the said pieces of jewelry on
commission basis. Private complainant agreed, and as a consequence, he turned over to petitioner
the following items: an 18k diamond ring for men; a woman's bracelet; one (1) men's necklace and
another men's bracelet, with an aggregate value of ₱98,000.00, as evidenced by a receipt of even
date. They both agreed that petitioner shall remit the proceeds of the sale, and/or, if unsold, to return
the same items, within a period of 60 days. The period expired without petitioner remitting the
proceeds of the sale or returning the pieces of jewelry. When private complainant was able to meet
petitioner, the latter promised the former that he will pay the value of the said items entrusted to him,
but to no avail.

Thus, an Information was filed against petitioner for the crime of estafa, which reads as follows:

That on or about the fifth (5th) day of July 1991, in the City of Olongapo, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, after having received from one
Danilo Tangcoy, one (1) men's diamond ring, 18k, worth ₱45,000.00; one (1) three-baht men's
bracelet, 22k, worth ₱25,000.00; one (1) two-baht ladies' bracelet, 22k, worth ₱12,000.00, or in the
total amount of Ninety-Eight Thousand Pesos (₱98,000.00), Philippine currency, under expressed
obligation on the part of said accused to remit the proceeds of the sale of the said items or to return
the same, if not sold, said accused, once in possession of the said items, with intent to defraud, and
with unfaithfulness and abuse of confidence, and far from complying with his aforestated obligation,
did then and there wilfully, unlawfully and feloniously misappropriate, misapply and convert to his
own personal use and benefit the aforesaid jewelries (sic) or the proceeds of the sale thereof, and
despite repeated demands, the accused failed and refused to return the said items or to remit the
amount of Ninety- Eight Thousand Pesos (₱98,000.00), Philippine currency, to the damage and
prejudice of said Danilo Tangcoy in the aforementioned amount.

CONTRARY TO LAW.

On January 28, 1992, petitioner, with the assistance of his counsel, entered a plea of not guilty.
Thereafter, trial on the merits ensued.

The prosecution, to prove the above-stated facts, presented the lone testimony of Danilo Tangcoy.
On the other hand, the defense presented the lone testimony of petitioner, which can be
summarized, as follows:

Petitioner and private complainant were collecting agents of Antonio Balajadia, who is engaged in
the financing business of extending loans to Base employees. For every collection made, they earn
a commission. Petitioner denied having transacted any business with private complainant.

However, he admitted obtaining a loan from Balajadia sometime in 1989 for which he was made to
sign a blank receipt. He claimed that the same receipt was then dated May 2, 1991 and used as
evidence against him for the supposed agreement to sell the subject pieces of jewelry, which he did
not even see.

After trial, the RTC found petitioner guilty beyond reasonable doubt of the crime charged in the
Information. The dispositive portion of the decision states:

WHEREFORE, finding accused LITO CORPUZ GUILTY beyond reasonable doubt of the felony of
Estafa under Article 315, paragraph one (1), subparagraph (b) of the Revised Penal Code;
there being no offsetting generic aggravating nor ordinary mitigating circumstance/s to vary the
penalty imposable;

accordingly, the accused is hereby sentenced to suffer the penalty of deprivation of liberty consisting
of an imprisonment under the Indeterminate Sentence Law of FOUR (4) YEARS AND TWO (2)
MONTHS of Prision Correccional in its medium period AS MINIMUM, to FOURTEEN (14) YEARS
AND EIGHT (8) MONTHS of Reclusion Temporal in its minimum period AS MAXIMUM; to indemnify
private complainant Danilo Tangcoy the amount of ₱98,000.00 as actual damages, and to pay the
costs of suit.

SO ORDERED.

The case was elevated to the CA, however, the latter denied the appeal of petitioner and affirmed
the decision of the RTC, thus:

WHEREFORE, the instant appeal is DENIED. The assailed Judgment dated July 30, 2004 of the
RTC of San Fernando City (P), Branch 46, is hereby AFFIRMED with MODIFICATION on the
imposable prison term, such that accused-appellant shall suffer the indeterminate penalty of 4 years
and 2 months of prision correccional, as minimum, to 8 years of prision mayor, as maximum, plus 1
year for each additional ₱10,000.00, or a total of 7 years. The rest of the decision stands.

SO ORDERED.

Petitioner, after the CA denied his motion for reconsideration, filed with this Court the present
petition stating the following grounds:

A. THE HONORABLE COURT OF APPEALS ERRED IN CONFIRMING THE ADMISSION AND

APPRECIATION BY THE LOWER COURT OF PROSECUTION EVIDENCE, INCLUDING ITS
EXHIBITS, WHICH ARE MERE MACHINE COPIES, AS THIS VIOLATES THE BEST EVIDENCE
RULE;

B. THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE LOWER COURT'S

FINDING THAT THE CRIMINAL INFORMATION FOR ESTAFA WAS NOT FATALLY DEFECTIVE
ALTHOUGH THE SAME DID NOT CHARGE THE OFFENSE UNDER ARTICLE 315 (1) (B) OF THE
REVISED PENAL CODE IN THAT -

1. THE INFORMATION DID NOT FIX A PERIOD WITHIN WHICH THE SUBJECT [PIECES
OF] JEWELRY SHOULD BE RETURNED, IF UNSOLD, OR THE MONEY TO BE
REMITTED, IF SOLD;

2. THE DATE OF THE OCCURRENCE OF THE CRIME ALLEGED IN THE INFORMATION

AS OF 05 JULY 1991 WAS MATERIALLY DIFFERENT FROM THE ONE TESTIFIED TO
BY THE PRIVATE COMPLAINANT WHICH WAS 02 MAY 1991;

C. THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE LOWER COURT'S

FINDING THAT DEMAND TO RETURN THE SUBJECT [PIECES OF] JEWELRY, IF UNSOLD, OR
REMIT THE PROCEEDS, IF SOLD – AN ELEMENT OF THE OFFENSE – WAS PROVED;

D. THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE LOWER COURT'S

FINDING THAT THE PROSECUTION'S CASE WAS PROVEN BEYOND REASONABLE DOUBT
ALTHOUGH -
 1. THE PRIVATE COMPLAINANT TESTIFIED ON TWO (2) VERSIONS OF THE INCIDENT;

2. THE VERSION OF THE PETITIONER – ACCUSED IS MORE STRAIGHTFORWARD

AND LOGICAL, CONSISTENT WITH HUMAN EXPERIENCE;

3. THE EQUIPOISE RULE WAS NOT APPRECIATED IN AND APPLIED TO THIS CASE;

4. PENAL STATUTES ARE STRICTLY CONSTRUED AGAINST THE STATE.

In its Comment dated May 5, 2008, the Office of the Solicitor General (OSG) stated the following
counter-arguments:

The exhibits were properly admitted inasmuch as petitioner failed to object to their admissibility.

The information was not defective inasmuch as it sufficiently established the designation of the
offense and the acts complained of.

The prosecution sufficiently established all the elements of the crime charged.

This Court finds the present petition devoid of any merit.

The factual findings of the appellate court generally are conclusive, and carry even more weight
when said court affirms the findings of the trial court, absent any showing that the findings are totally
devoid of support in the records, or that they are so glaringly erroneous as to constitute grave abuse
of discretion.4 Petitioner is of the opinion that the CA erred in affirming the factual findings of the trial
court. He now comes to this Court raising both procedural and substantive issues.

According to petitioner, the CA erred in affirming the ruling of the trial court, admitting in evidence a
receipt dated May 2, 1991 marked as Exhibit "A" and its submarkings, although the same was
merely a photocopy, thus, violating the best evidence rule. However, the records show that petitioner
never objected to the admissibility of the said evidence at the time it was identified, marked and
testified upon in court by private complainant. The CA also correctly pointed out that petitioner also
failed to raise an objection in his Comment to the prosecution's formal offer of evidence and even
admitted having signed the said receipt. The established doctrine is that when a party failed to
interpose a timely objection to evidence at the time they were offered in evidence, such objection
shall be considered as waived.5

Another procedural issue raised is, as claimed by petitioner, the formally defective Information filed
against him. He contends that the Information does not contain the period when the pieces of jewelry
were supposed to be returned and that the date when the crime occurred was different from the one
testified to by private complainant. This argument is untenable. The CA did not err in finding that the
Information was substantially complete and in reiterating that objections as to the matters of form
and substance in the Information cannot be made for the first time on appeal. It is true that the
gravamen of the crime of estafa under Article 315, paragraph 1, subparagraph (b) of the RPC is the
appropriation or conversion of money or property received to the prejudice of the owner6 and that the
time of occurrence is not a material ingredient of the crime, hence, the exclusion of the period and
the wrong date of the occurrence of the crime, as reflected in the Information, do not make the latter
fatally defective. The CA ruled:
x x x An information is legally viable as long as it distinctly states the statutory designation of the
offense and the acts or omissions constitutive thereof. Then Section 6, Rule 110 of the Rules of
Court provides that a complaint or information is sufficient if it states the name of the accused;

the designation of the offense by the statute; the acts or omissions complained of as constituting the
offense; the name of the offended party; the approximate time of the commission of the offense, and
the place wherein the offense was committed. In the case at bar, a reading of the subject Information
shows compliance with the foregoing rule. That the time of the commission of the offense was stated
as " on or about the fifth (5th) day of July, 1991" is not likewise fatal to the prosecution's cause
considering that Section 11 of the same Rule requires a statement of the precise time only when the
same is a material ingredient of the offense. The gravamen of the crime of estafa under Article 315,
paragraph 1 (b) of the Revised Penal Code (RPC) is the appropriation or conversion of money or
property received to the prejudice of the offender. Thus, aside from the fact that the date of the
commission thereof is not an essential element of the crime herein charged, the failure of the
prosecution to specify the exact date does not render the Information ipso facto defective. Moreover,
the said date is also near the due date within which accused-appellant should have delivered the
proceeds or returned the said [pieces of jewelry] as testified upon by Tangkoy, hence, there was
sufficient compliance with the rules. Accused-appellant, therefore, cannot now be allowed to claim
that he was not properly apprised of the charges proferred against him.7

It must be remembered that petitioner was convicted of the crime of Estafa under Article 315,
paragraph 1 (b) of the RPC, which reads:

ART. 315. Swindling (estafa). – Any person who shall defraud another by any of the means
mentioned hereinbelow.

1. With unfaithfulness or abuse of confidence, namely:

xxxx

(b) By misappropriating or converting, to the prejudice of another, money, goods, or any other
personal property received by the offender in trust or on commission, or for administration, or under
any other obligation involving the duty to make delivery of or to return the same, even though such
obligation be totally or partially guaranteed by a bond; or by denying having received such money,
goods, or other property; x x x

The elements of estafa with abuse of confidence are as follows: (a) 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; (b) that there
be misappropriation or conversion of such money or property by the offender or denial on his part of
such receipt; (c) that such misappropriation or conversion or denial is to the prejudice of another;
and (d) that there is a demand made by the offended party on the offender.8

Petitioner argues that the last element, which is, that there is a demand by the offended party on the
offender, was not proved. This Court disagrees. In his testimony, private complainant narrated how
he was able to locate petitioner after almost two (2) months from the time he gave the pieces of
jewelry and asked petitioner about the same items with the latter promising to pay them. Thus:

PROS. MARTINEZ

q Now, Mr. Witness, this was executed on 2 May 1991, and this transaction could have been
finished on 5 July 1991, the question is what happens (sic) when the deadline came?
a I went looking for him, sir.

q For whom?

a Lito Corpuz, sir.

q Were you able to look (sic) for him?

a I looked for him for a week, sir.

q Did you know his residence?

a Yes, sir.

q Did you go there?

a Yes, sir.

q Did you find him?

a No, sir.

q Were you able to talk to him since 5 July 1991?

a I talked to him, sir.

q How many times?

a Two times, sir.

q What did you talk (sic) to him?

a About the items I gave to (sic) him, sir.

q Referring to Exhibit A-2?

a Yes, sir, and according to him he will take his obligation and I asked him where the items are and
he promised me that he will pay these amount, sir.

q Up to this time that you were here, were you able to collect from him partially or full?

a No, sir.9

No specific type of proof is required to show that there was demand.10 Demand need not even be
formal; it may be verbal.11 The specific word "demand" need not even be used to show that it has
indeed been made upon the person charged, since even a mere query as to the whereabouts of the
money [in this case, property], would be tantamount to a demand.12 As expounded in Asejo v.
People:13
With regard to the necessity of demand, we agree with the CA that demand under this kind of estafa
need not be formal or written. The appellate court observed that the law is silent with regard to the
form of demand in estafa under Art. 315 1(b), thus:

When the law does not qualify, We should not qualify. Should a written demand be necessary, the
law would have stated so. Otherwise, the word "demand" should be interpreted in its general
meaning as to include both written and oral demand. Thus, the failure of the prosecution to present a
written demand as evidence is not fatal.

In Tubb v. People, where the complainant merely verbally inquired about the money entrusted to the
accused, we held that the query was tantamount to a demand, thus:

x x x [T]he law does not require a demand as a condition precedent to the existence of the crime of
embezzlement. It so happens only that failure to account, upon demand for funds or property held in
trust, is circumstantial evidence of misappropriation. The same way, however, be established by
other proof, such as that introduced in the case at bar.14

In view of the foregoing and based on the records, the prosecution was able to prove the existence
of all the elements of the crime. Private complainant gave petitioner the pieces of jewelry in trust, or
on commission basis, as shown in the receipt dated May 2, 1991 with an obligation to sell or return
the same within sixty (60) days, if unsold. There was misappropriation when petitioner failed to remit
the proceeds of those pieces of jewelry sold, or if no sale took place, failed to return the same pieces
of jewelry within or after the agreed period despite demand from the private complainant, to the
prejudice of the latter.

Anent the credibility of the prosecution's sole witness, which is questioned by petitioner, the same is
unmeritorious. Settled is the rule that in assessing the credibility of witnesses, this Court gives great
respect to the evaluation of the trial court for it had the unique opportunity to observe the demeanor
of witnesses and their deportment on the witness stand, an opportunity denied the appellate courts,
which merely rely on the records of the case.15 The assessment by the trial court is even conclusive
and binding if not tainted with arbitrariness or oversight of some fact or circumstance of weight and
influence, especially when such finding is affirmed by the CA.16 Truth is established not by the
number of witnesses, but by the quality of their testimonies, for in determining the value and
credibility of evidence, the witnesses are to be weighed not numbered.17

As regards the penalty, while this Court's Third Division was deliberating on this case, the question
of the continued validity of imposing on persons convicted of crimes involving property came up. The
legislature apparently pegged these penalties to the value of the money and property in 1930 when it
enacted the Revised Penal Code. Since the members of the division reached no unanimity on this
question and since the issues are of first impression, they decided to refer the case to the Court en
banc for consideration and resolution. Thus, several amici curiae were invited at the behest of the
Court to give their academic opinions on the matter. Among those that graciously complied were
Dean Jose Manuel Diokno, Dean Sedfrey M. Candelaria, Professor Alfredo F. Tadiar, the Senate
President, and the Speaker of the House of Representatives. The parties were later heard on oral
arguments before the Court en banc, with Atty. Mario L. Bautista appearing as counsel de oficio of
the petitioner.

After a thorough consideration of the arguments presented on the matter, this Court finds the
following:

There seems to be a perceived injustice brought about by the range of penalties that the courts
continue to impose on crimes against property committed today, based on the amount of damage
measured by the value of money eighty years ago in 1932. However, this Court cannot modify the
said range of penalties because that would constitute judicial legislation. What the legislature's
perceived failure in amending the penalties provided for in the said crimes cannot be remedied
through this Court's decisions, as that would be encroaching upon the power of another branch of
the government. This, however, does not render the whole situation without any remedy. It can be
appropriately presumed that the framers of the Revised Penal Code (RPC) had anticipated this
matter by including Article 5, which reads:

ART. 5. Duty of the court in connection with acts which should be repressed but which are not
covered by the law, and in cases of excessive penalties. - Whenever a court has knowledge of any
act which it may deem proper to repress and which is not punishable by law, it shall render the
proper decision, and shall report to the Chief Executive, through the Department of Justice, the
reasons which induce the court to believe that said act should be made the subject of penal
legislation.

In the same way, the court shall submit to the Chief Executive, through the Department of Justice,
such statement as may be deemed proper, without suspending the execution of the sentence, when
a strict enforcement of the provisions of this Code would result in the imposition of a clearly
excessive penalty, taking into consideration the degree of malice and the injury caused by the
offense.18

The first paragraph of the above provision clearly states that for acts bourne out of a case which is
not punishable by law and the court finds it proper to repress, the remedy is to render the proper
decision and thereafter, report to the Chief Executive, through the Department of Justice, the
reasons why the same act should be the subject of penal legislation. The premise here is that a
deplorable act is present but is not the subject of any penal legislation, thus, the court is tasked to
inform the Chief Executive of the need to make that act punishable by law through legislation. The
second paragraph is similar to the first except for the situation wherein the act is already punishable
by law but the corresponding penalty is deemed by the court as excessive. The remedy therefore, as
in the first paragraph is not to suspend the execution of the sentence but to submit to the Chief
Executive the reasons why the court considers the said penalty to be non-commensurate with the
act committed. Again, the court is tasked to inform the Chief Executive, this time, of the need for a
legislation to provide the proper penalty.

In his book, Commentaries on the Revised Penal Code,19 Guillermo B. Guevara opined that in Article
5, the duty of the court is merely to report to the Chief Executive, with a recommendation for an
amendment or modification of the legal provisions which it believes to be harsh. Thus:

This provision is based under the legal maxim "nullum crimen, nulla poena sige lege," that is, that
there can exist no punishable act except those previously and specifically provided for by penal
statute.

No matter how reprehensible an act is, if the law-making body does not deem it necessary to prohibit
its perpetration with penal sanction, the Court of justice will be entirely powerless to punish such act.

Under the provisions of this article the Court cannot suspend the execution of a sentence on the
ground that the strict enforcement of the provisions of this Code would cause excessive or harsh
penalty. All that the Court could do in such eventuality is to report the matter to the Chief Executive
with a recommendation for an amendment or modification of the legal provisions which it believes to
be harsh.20
Anent the non-suspension of the execution of the sentence, retired Chief Justice Ramon C. Aquino
and retired Associate Justice Carolina C. Griño-Aquino, in their book, The Revised Penal
Code,21 echoed the above-cited commentary, thus:

The second paragraph of Art. 5 is an application of the humanitarian principle that justice must be
tempered with mercy. Generally, the courts have nothing to do with the wisdom or justness of the
penalties fixed by law. "Whether or not the penalties prescribed by law upon conviction of violations
of particular statutes are too severe or are not severe enough, are questions as to which
commentators on the law may fairly differ; but it is the duty of the courts to enforce the will of the
legislator in all cases unless it clearly appears that a given penalty falls within the prohibited class of
excessive fines or cruel and unusual punishment." A petition for clemency should be addressed to
the Chief Executive.22

There is an opinion that the penalties provided for in crimes against property be based on the current
inflation rate or at the ratio of ₱1.00 is equal to ₱100.00 . However, it would be dangerous as this
would result in uncertainties, as opposed to the definite imposition of the penalties. It must be
remembered that the economy fluctuates and if the proposed imposition of the penalties in crimes
against property be adopted, the penalties will not cease to change, thus, making the RPC, a self-
amending law. Had the framers of the RPC intended that to be so, it should have provided the same,
instead, it included the earlier cited Article 5 as a remedy. It is also improper to presume why the
present legislature has not made any moves to amend the subject penalties in order to conform with
the present times. For all we know, the legislature intends to retain the same penalties in order to
deter the further commission of those punishable acts which have increased tremendously through
the years. In fact, in recent moves of the legislature, it is apparent that it aims to broaden the
coverage of those who violate penal laws. In the crime of Plunder, from its original minimum amount
of ₱100,000,000.00 plundered, the legislature lowered it to ₱50,000,000.00. In the same way, the
legislature lowered the threshold amount upon which the Anti-Money Laundering Act may apply,
from ₱1,000,000.00 to ₱500,000.00.

It is also worth noting that in the crimes of Theft and Estafa, the present penalties do not seem to be
excessive compared to the proposed imposition of their corresponding penalties. In Theft, the
provisions state that:

Art. 309. Penalties. — Any person guilty of theft shall be punished by:

1. The penalty of prision mayor in its minimum and medium periods, if the value of the thing
stolen is more than 12,000 pesos but does not exceed 22,000 pesos, but if the value of the
thing stolen exceeds the latter amount the penalty shall be the maximum period of the one
prescribed in this paragraph, and one year for each additional ten thousand pesos, but the
total of the penalty which may be imposed shall not exceed twenty years. In such cases, and
in connection with the accessory penalties which may be imposed and for the purpose of the
other provisions of this Code, the penalty shall be termed prision mayor or reclusion
temporal, as the case may be.

2. The penalty of prision correccional in its medium and maximum periods, if the value of the
thing stolen is more than 6,000 pesos but does not exceed 12,000 pesos.

3. The penalty of prision correccional in its minimum and medium periods, if the value of the
property stolen is more than 200 pesos but does not exceed 6,000 pesos.

4. Arresto mayor in its medium period to prision correccional in its minimum period, if the
value of the property stolen is over 50 pesos but does not exceed 200 pesos.
 5. Arresto mayor to its full extent, if such value is over 5 pesos but does not exceed 50
pesos.

6. Arresto mayor in its minimum and medium periods, if such value does not exceed 5
pesos.

7. Arresto menor or a fine not exceeding 200 pesos, if the theft is committed under the
circumstances enumerated in paragraph 3 of the next preceding article and the value of the
thing stolen does not exceed 5 pesos. If such value exceeds said amount, the provision of
any of the five preceding subdivisions shall be made applicable.

8. Arresto menor in its minimum period or a fine not exceeding 50 pesos, when the value of
the thing stolen is not over 5 pesos, and the offender shall have acted under the impulse of
hunger, poverty, or the difficulty of earning a livelihood for the support of himself or his family.

In a case wherein the value of the thing stolen is ₱6,000.00, the above-provision states that the
penalty is prision correccional in its minimum and medium periods (6 months and 1 day to 4 years
and 2 months). Applying the proposal, if the value of the thing stolen is ₱6,000.00, the penalty is
imprisonment of arresto mayor in its medium period to prision correccional minimum period (2
months and 1 day to 2 years and 4 months). It would seem that under the present law, the penalty
imposed is almost the same as the penalty proposed. In fact, after the application of the
Indeterminate Sentence Law under the existing law, the minimum penalty is still lowered by one
degree; hence, the minimum penalty is arresto mayor in its medium period to maximum period (2
months and 1 day to 6 months), making the offender qualified for pardon or parole after serving the
said minimum period and may even apply for probation. Moreover, under the proposal, the minimum
penalty after applying the Indeterminate Sentence Law is arresto menor in its maximum period to
arresto mayor in its minimum period (21 days to 2 months) is not too far from the minimum period
under the existing law. Thus, it would seem that the present penalty imposed under the law is not at
all excessive. The same is also true in the crime of Estafa.23

Moreover, if we apply the ratio of 1:100, as suggested to the value of the thing stolen in the crime of
Theft and the damage caused in the crime of Estafa, the gap between the minimum and the
maximum amounts, which is the basis of determining the proper penalty to be imposed, would be
too wide and the penalty imposable would no longer be commensurate to the act committed and the
value of the thing stolen or the damage caused:

I. Article 309, or the penalties for the crime of Theft, the value would be modified but the penalties
are not changed:

1. ₱12,000.00 to ₱22,000.00 will become ₱1,200,000.00 to ₱2,200,000.00, punished by

prision mayor minimum to prision mayor medium (6 years and 1 day to 10 years).

2. ₱6,000.00 to ₱12,000.00 will become ₱600,000.00 to ₱1,200,000.00, punished by prision

correccional medium and to prision correccional maximum (2 years, 4 months and 1 day to 6
years).24

3. ₱200.00 to ₱6,000.00 will become ₱20,000.00 to ₱600,000.00, punishable by prision

correccional minimum to prision correccional medium (6 months and 1 day to 4 years and 2
months).

4. ₱50.00 to ₱200.00 will become ₱5,000.00 to ₱20,000.00, punishable by arresto mayor

medium to prision correccional minimum (2 months and 1 day to 2 years and 4 months).
 5. ₱5.00 to ₱50.00 will become ₱500.00 to ₱5,000.00, punishable by arresto mayor (1 month
and 1 day to 6 months).

6. ₱5.00 will become ₱500.00, punishable by arresto mayor minimum to arresto mayor
medium.

x x x x.

II. Article 315, or the penalties for the crime of Estafa, the value would also be modified but the
penalties are not changed, as follows:

1st. ₱12,000.00 to ₱22,000.00, will become ₱1,200,000.00 to ₱2,200,000.00, punishable by

prision correccional maximum to prision mayor minimum (4 years, 2 months and 1 day to 8
years).25

2nd. ₱6,000.00 to ₱12,000.00 will become ₱600,000.00 to ₱1,200,000.00, punishable by

prision correccional minimum to prision correccional medium (6 months and 1 day to 4 years
and 2 months).26

3rd. ₱200.00 to ₱6,000.00 will become ₱20,000.00 to ₱600,000.00, punishable by arresto

mayor maximum to prision correccional minimum (4 months and 1 day to 2 years and 4
months).

4th. ₱200.00 will become ₱20,000.00, punishable by arresto mayor maximum (4 months and
1 day to 6 months).

An argument raised by Dean Jose Manuel I. Diokno, one of our esteemed amici curiae, is that the
incremental penalty provided under Article 315 of the RPC violates the Equal Protection Clause.

The equal protection clause requires equality among equals, which is determined according to a
valid classification. The test developed by jurisprudence here and yonder is that of
reasonableness,27 which has four requisites:

(1) The classification rests on substantial distinctions;

(2) It is germane to the purposes of the law;

(3) It is not limited to existing conditions only; and

(4) It applies equally to all members of the same class.28

According to Dean Diokno, the Incremental Penalty Rule (IPR) does not rest on substantial
distinctions as ₱10,000.00 may have been substantial in the past, but it is not so today, which
violates the first requisite; the IPR was devised so that those who commit estafa involving higher
amounts would receive heavier penalties; however, this is no longer achieved, because a person
who steals ₱142,000.00 would receive the same penalty as someone who steals hundreds of
millions, which violates the second requisite; and, the IPR violates requisite no. 3, considering that
the IPR is limited to existing conditions at the time the law was promulgated, conditions that no
longer exist today.
Assuming that the Court submits to the argument of Dean Diokno and declares the incremental
penalty in Article 315 unconstitutional for violating the equal protection clause, what then is the
penalty that should be applied in case the amount of the thing subject matter of the crime exceeds
₱22,000.00? It seems that the proposition poses more questions than answers, which leads us even
more to conclude that the appropriate remedy is to refer these matters to Congress for them to
exercise their inherent power to legislate laws.

Even Dean Diokno was of the opinion that if the Court declares the IPR unconstitutional, the remedy
is to go to Congress. Thus:

xxxx

JUSTICE PERALTA:

Now, your position is to declare that the incremental penalty should be struck down as
unconstitutional because it is absurd.

DEAN DIOKNO:

Absurd, it violates equal protection, Your Honor, and cruel and unusual punishment.

JUSTICE PERALTA:

Then what will be the penalty that we are going to impose if the amount is more than Twenty-Two
Thousand (₱22,000.00) Pesos.

DEAN DIOKNO:

Well, that would be for Congress to ... if this Court will declare the incremental penalty rule
unconstitutional, then that would ... the void should be filled by Congress.

JUSTICE PERALTA:

But in your presentation, you were fixing the amount at One Hundred Thousand (₱100,000.00)
Pesos ...

DEAN DIOKNO:

Well, my presen ... (interrupted)

JUSTICE PERALTA:

For every One Hundred Thousand (₱100,000.00) Pesos in excess of Twenty-Two Thousand
(₱22,000.00) Pesos you were suggesting an additional penalty of one (1) year, did I get you right?

DEAN DIOKNO:

Yes, Your Honor, that is, if the court will take the route of statutory interpretation.

JUSTICE PERALTA:
Ah ...

DEAN DIOKNO:

If the Court will say that they can go beyond the literal wording of the law...

JUSTICE PERALTA:

But if we de ... (interrupted)

DEAN DIOKNO:

....then....

JUSTICE PERALTA:

Ah, yeah. But if we declare the incremental penalty as unsconstitutional, the court cannot fix the
amount ...

DEAN DIOKNO:

No, Your Honor.

JUSTICE PERALTA:

... as the equivalent of one, as an incremental penalty in excess of Twenty-Two Thousand

(₱22,000.00) Pesos.

DEAN DIOKNO:

No, Your Honor.

JUSTICE PERALTA:

The Court cannot do that.

DEAN DIOKNO:

Could not be.

JUSTICE PERALTA:

The only remedy is to go to Congress...

DEAN DIOKNO:

Yes, Your Honor.

JUSTICE PERALTA:
... and determine the value or the amount.

DEAN DIOKNO:

Yes, Your Honor.

JUSTICE PERALTA:

That will be equivalent to the incremental penalty of one (1) year in excess of Twenty-Two Thousand
(₱22,000.00) Pesos.

DEAN DIOKNO:

Yes, Your Honor.

JUSTICE PERALTA:

The amount in excess of Twenty-Two Thousand (₱22,000.00) Pesos.

Thank you, Dean.

DEAN DIOKNO:

Thank you.

x x x x29

Dean Diokno also contends that Article 315 of the Revised Penal Code constitutes cruel and
unusual punishment. Citing Solem v. Helm,30 Dean Diokno avers that the United States Federal
Supreme Court has expanded the application of a similar Constitutional provision prohibiting cruel
and unusual punishment, to the duration of the penalty, and not just its form. The court therein ruled
that three things must be done to decide whether a sentence is proportional to a specific crime, viz.;
(1) Compare the nature and gravity of the offense, and the harshness of the penalty; (2) Compare
the sentences imposed on other criminals in the same jurisdiction, i.e., whether more serious crimes
are subject to the same penalty or to less serious penalties; and (3) Compare the sentences
imposed for commission of the same crime in other jurisdictions.

However, the case of Solem v. Helm cannot be applied in the present case, because in Solem what
respondent therein deemed cruel was the penalty imposed by the state court of South Dakota after it
took into account the latter’s recidivist statute and not the original penalty for uttering a "no account"
check. Normally, the maximum punishment for the crime would have been five years imprisonment
and a $5,000.00 fine. Nonetheless, respondent was sentenced to life imprisonment without the
possibility of parole under South Dakota’s recidivist statute because of his six prior felony
convictions. Surely, the factual antecedents of Solem are different from the present controversy.

With respect to the crime of Qualified Theft, however, it is true that the imposable penalty for the
offense is high. Nevertheless, the rationale for the imposition of a higher penalty against a domestic
servant is the fact that in the commission of the crime, the helper will essentially gravely abuse the
trust and confidence reposed upon her by her employer. After accepting and allowing the helper to
be a member of the household, thus entrusting upon such person the protection and safekeeping of
the employer’s loved ones and properties, a subsequent betrayal of that trust is so repulsive as to
warrant the necessity of imposing a higher penalty to deter the commission of such wrongful acts.

There are other crimes where the penalty of fine and/or imprisonment are dependent on the subject
matter of the crime and which, by adopting the proposal, may create serious implications. For
example, in the crime of Malversation, the penalty imposed depends on the amount of the money
malversed by the public official, thus:

Art. 217. Malversation of public funds or property; Presumption of malversation. — Any public officer
who, by reason of the duties of his office, is accountable for public funds or property, shall
appropriate the same or shall take or misappropriate or shall consent, through abandonment or
negligence, shall permit any other person to take such public funds, or property, wholly or partially,
or shall otherwise be guilty of the misappropriation or malversation of such funds or property, shall
suffer:

1. The penalty of prision correccional in its medium and maximum periods, if the amount
involved in the misappropriation or malversation does not exceed two hundred pesos.

2. The penalty of prision mayor in its minimum and medium periods, if the amount involved is
more than two hundred pesos but does not exceed six thousand pesos.

3. The penalty of prision mayor in its maximum period to reclusion temporal in its minimum
period, if the amount involved is more than six thousand pesos but is less than twelve
thousand pesos.

4. The penalty of reclusion temporal, in its medium and maximum periods, if the amount
involved is more than twelve thousand pesos but is less than twenty-two thousand pesos. If
the amount exceeds the latter, the penalty shall be reclusion temporal in its maximum period
to reclusion perpetua.

In all cases, persons guilty of malversation shall also suffer the penalty of perpetual special
disqualification and a fine equal to the amount of the funds malversed or equal to the total value of
the property embezzled.

The failure of a public officer to have duly forthcoming any public funds or property with which he is
chargeable, upon demand by any duly authorized officer, shall be prima facie evidence that he has
put such missing funds or property to personal use.

The above-provisions contemplate a situation wherein the Government loses money due to the
unlawful acts of the offender. Thus, following the proposal, if the amount malversed is ₱200.00
(under the existing law), the amount now becomes ₱20,000.00 and the penalty is prision
correccional in its medium and maximum periods (2 years 4 months and 1 day to 6 years). The
penalty may not be commensurate to the act of embezzlement of ₱20,000.00 compared to the acts
committed by public officials punishable by a special law, i.e., Republic Act No. 3019 or the Anti-
Graft and Corrupt Practices Act, specifically Section 3,31 wherein the injury caused to the government
is not generally defined by any monetary amount, the penalty (6 years and 1 month to 15
years)32 under the Anti-Graft Law will now become higher. This should not be the case, because in
the crime of malversation, the public official takes advantage of his public position to embezzle the
fund or property of the government entrusted to him.

The said inequity is also apparent in the crime of Robbery with force upon things (inhabited or
uninhabited) where the value of the thing unlawfully taken and the act of unlawful entry are the
bases of the penalty imposable, and also, in Malicious Mischief, where the penalty of imprisonment
or fine is dependent on the cost of the damage caused.

In Robbery with force upon things (inhabited or uninhabited), if we increase the value of the thing
unlawfully taken, as proposed in the ponencia, the sole basis of the penalty will now be the value of
the thing unlawfully taken and no longer the element of force employed in entering the premises. It
may likewise cause an inequity between the crime of Qualified Trespass to Dwelling under Article
280, and this kind of robbery because the former is punishable by prision correccional in its medium
and maximum periods (2 years, 4 months and 1 day to 6 years) and a fine not exceeding ₱1,000.00
(₱100,000.00 now if the ratio is 1:100) where entrance to the premises is with violence or
intimidation, which is the main justification of the penalty. Whereas in the crime of Robbery with force
upon things, it is punished with a penalty of prision mayor (6 years and 1 day to 12 years) if the
intruder is unarmed without the penalty of Fine despite the fact that it is not merely the illegal entry
that is the basis of the penalty but likewise the unlawful taking.

Furthermore, in the crime of Other Mischiefs under Article 329, the highest penalty that can be
imposed is arresto mayor in its medium and maximum periods (2 months and 1 day to 6 months) if
the value of the damage caused exceeds ₱1,000.00, but under the proposal, the value of the
damage will now become ₱100,000.00 (1:100), and still punishable by arresto mayor (1 month and 1
day to 6 months). And, if the value of the damaged property does not exceed ₱200.00, the penalty is
arresto menor or a fine of not less than the value of the damage caused and not more than ₱200.00,
if the amount involved does not exceed ₱200.00 or cannot be estimated. Under the proposal,
₱200.00 will now become ₱20,000.00, which simply means that the fine of ₱200.00 under the
existing law will now become ₱20,000.00. The amount of Fine under this situation will now become
excessive and afflictive in nature despite the fact that the offense is categorized as a light felony
penalized with a light penalty under Article 26 of the RPC.33 Unless we also amend Article 26 of the
RPC, there will be grave implications on the penalty of Fine, but changing the same through Court
decision, either expressly or impliedly, may not be legally and constitutionally feasible.

There are other crimes against property and swindling in the RPC that may also be affected by the
proposal, such as those that impose imprisonment and/or Fine as a penalty based on the value of
the damage caused, to wit: Article 311 (Theft of the property of the National Library and National
Museum), Article 312 (Occupation of real property or usurpation of real rights in property), Article
313 (Altering boundaries or landmarks), Article 316 (Other forms of swindling), Article 317 (Swindling
a minor), Article 318 (Other deceits), Article 328 (Special cases of malicious mischief) and Article
331 (Destroying or damaging statues, public monuments or paintings). Other crimes that impose
Fine as a penalty will also be affected, such as: Article 213 (Frauds against the public treasury and
similar offenses), Article 215 (Prohibited Transactions),

Article 216 (Possession of prohibited interest by a public officer), Article 218 (Failure of accountable
officer to render accounts), Article 219 (Failure of a responsible public officer to render accounts
before leaving the country).

In addition, the proposal will not only affect crimes under the RPC. It will also affect crimes which are
punishable by special penal laws, such as Illegal Logging or Violation of Section 68 of Presidential
Decree No. 705, as amended.34 The law treats cutting, gathering, collecting and possessing timber or
other forest products without license as an offense as grave as and equivalent to the felony of
qualified theft.35 Under the law, the offender shall be punished with the penalties imposed under
Articles 309 and 31036 of the Revised Penal Code, which means that the penalty imposable for the
offense is, again, based on the value of the timber or forest products involved in the offense. Now, if
we accept the said proposal in the crime of Theft, will this particular crime of Illegal Logging be
amended also in so far as the penalty is concerned because the penalty is dependent on Articles
309 and 310 of the RPC? The answer is in the negative because the soundness of this particular law
is not in question.

With the numerous crimes defined and penalized under the Revised Penal Code and Special Laws,
and other related provisions of these laws affected by the proposal, a thorough study is needed to
determine its effectivity and necessity. There may be some provisions of the law that should be
amended; nevertheless, this Court is in no position to conclude as to the intentions of the framers of
the Revised Penal Code by merely making a study of the applicability of the penalties imposable in
the present times. Such is not within the competence of the Court but of the Legislature which is
empowered to conduct public hearings on the matter, consult legal luminaries and who, after due
proceedings, can decide whether or not to amend or to revise the questioned law or other laws, or
even create a new legislation which will adopt to the times.

Admittedly, Congress is aware that there is an urgent need to amend the Revised Penal Code.
During the oral arguments, counsel for the Senate informed the Court that at present, fifty-six (56)
bills are now pending in the Senate seeking to amend the Revised Penal Code,37 each one
proposing much needed change and updates to archaic laws that were promulgated decades ago
when the political, socio-economic, and cultural settings were far different from today’s conditions.

Verily, the primordial duty of the Court is merely to apply the law in such a way that it shall not usurp
legislative powers by judicial legislation and that in the course of such application or construction, it
should not make or supervise legislation, or under the guise of interpretation, modify, revise, amend,
distort, remodel, or rewrite the law, or give the law a construction which is repugnant to its
terms.38 The Court should apply the law in a manner that would give effect to their letter and spirit,
especially when the law is clear as to its intent and purpose. Succinctly put, the Court should shy
away from encroaching upon the primary function of a co-equal branch of the Government;
otherwise, this would lead to an inexcusable breach of the doctrine of separation of powers by
means of judicial legislation.

Moreover, it is to be noted that civil indemnity is, technically, not a penalty or a Fine; hence, it can be
increased by the Court when appropriate. Article 2206 of the Civil Code provides:

Art. 2206. The amount of damages for death caused by a crime or quasi-delict shall be at least three
thousand pesos, even though there may have been mitigating circumstances. In addition:

(1) The defendant shall be liable for the loss of the earning capacity of the deceased, and the
indemnity shall be paid to the heirs of the latter; such indemnity shall in every case be
assessed and awarded by the court, unless the deceased on account of permanent physical
disability not caused by the defendant, had no earning capacity at the time of his death;

(2) If the deceased was obliged to give support according to the provisions of Article 291, the
recipient who is not an heir called to the decedent's inheritance by the law of testate or
intestate succession, may demand support from the person causing the death, for a period
not exceeding five years, the exact duration to be fixed by the court;

(3) The spouse, legitimate and illegitimate descendants and ascendants of the deceased
may demand moral damages for mental anguish by reason of the death of the deceased.

In our jurisdiction, civil indemnity is awarded to the offended party as a kind of monetary restitution or
compensation to the victim for the damage or infraction that was done to the latter by the accused,
which in a sense only covers the civil aspect. Precisely, it is civil indemnity. Thus, in a crime where a
person dies, in addition to the penalty of imprisonment imposed to the offender, the accused is also
ordered to pay the victim a sum of money as restitution. Clearly, this award of civil indemnity due to
the death of the victim could not be contemplated as akin to the value of a thing that is unlawfully
taken which is the basis in the imposition of the proper penalty in certain crimes. Thus, the reasoning
in increasing the value of civil indemnity awarded in some offense cannot be the same reasoning
that would sustain the adoption of the suggested ratio. Also, it is apparent from Article 2206 that the
law only imposes a minimum amount for awards of civil indemnity, which is ₱3,000.00. The law did
not provide for a ceiling. Thus, although the minimum amount for the award cannot be changed,
increasing the amount awarded as civil indemnity can be validly modified and increased when the
present circumstance warrants it. Corollarily, moral damages under Article 222039 of the Civil Code
also does not fix the amount of damages that can be awarded. It is discretionary upon the court,
depending on the mental anguish or the suffering of the private offended party. The amount of moral
damages can, in relation to civil indemnity, be adjusted so long as it does not exceed the award of
civil indemnity.

In addition, some may view the penalty provided by law for the offense committed as tantamount to
cruel punishment. However, all penalties are generally harsh, being punitive in nature. Whether or
not they are excessive or amount to cruel punishment is a matter that should be left to lawmakers. It
is the prerogative of the courts to apply the law, especially when they are clear and not subject to
any other interpretation than that which is plainly written.

Similar to the argument of Dean Diokno, one of Justice Antonio Carpio’s opinions is that the
incremental penalty provision should be declared unconstitutional and that the courts should only
impose the penalty corresponding to the amount of ₱22,000.00, regardless if the actual amount
involved exceeds ₱22,000.00. As suggested, however, from now until the law is properly amended
by Congress, all crimes of Estafa will no longer be punished by the appropriate penalty. A
conundrum in the regular course of criminal justice would occur when every accused convicted of
the crime of estafa will be meted penalties different from the proper penalty that should be imposed.
Such drastic twist in the application of the law has no legal basis and directly runs counter to what
the law provides.

It should be noted that the death penalty was reintroduced in the dispensation of criminal justice by
the Ramos Administration by virtue of Republic Act No. 765940 in December 1993. The said law has
been questioned before this Court. There is, arguably, no punishment more cruel than that of death.
Yet still, from the time the death penalty was re-imposed until its lifting in June 2006 by Republic Act
No. 9346,41 the Court did not impede the imposition of the death penalty on the ground that it is a
"cruel punishment" within the purview of Section 19 (1),42 Article III of the Constitution. Ultimately, it
was through an act of Congress suspending the imposition of the death penalty that led to its non-
imposition and not via the intervention of the Court.

Even if the imposable penalty amounts to cruel punishment, the Court cannot declare the provision
of the law from which the proper penalty emanates unconstitutional in the present action. Not only is
it violative of due process, considering that the State and the concerned parties were not given the
opportunity to comment on the subject matter, it is settled that the constitutionality of a statute
cannot be attacked collaterally because constitutionality issues must be pleaded directly and not
collaterally,43 more so in the present controversy wherein the issues never touched upon the
constitutionality of any of the provisions of the Revised Penal Code.

Besides, it has long been held that the prohibition of cruel and unusual punishments is generally
aimed at the form or character of the punishment rather than its severity in respect of duration or
amount, and applies to punishments which public sentiment has regarded as cruel or obsolete, for
instance, those inflicted at the whipping post, or in the pillory, burning at the stake, breaking on the
wheel, disemboweling, and the like. Fine and imprisonment would not thus be within the prohibition.44
It takes more than merely being harsh, excessive, out of proportion, or severe for a penalty to be
obnoxious to the Constitution. The fact that the punishment authorized by the statute is severe does
not make it cruel and unusual. Expressed in other terms, it has been held that to come under the
ban, the punishment must be "flagrantly and plainly oppressive," "wholly disproportionate to the
nature of the offense as to shock the moral sense of the community."45

Cruel as it may be, as discussed above, it is for the Congress to amend the law and adapt it to our
modern time.

The solution to the present controversy could not be solved by merely adjusting the questioned
monetary values to the present value of money based only on the current inflation rate. There are
other factors and variables that need to be taken into consideration, researched, and deliberated
upon before the said values could be accurately and properly adjusted. The effects on the society,
the injured party, the accused, its socio-economic impact, and the likes must be painstakingly
evaluated and weighed upon in order to arrive at a wholistic change that all of us believe should be
made to our existing law. Dejectedly, the Court is ill-equipped, has no resources, and lacks sufficient
personnel to conduct public hearings and sponsor studies and surveys to validly effect these
changes in our Revised Penal Code. This function clearly and appropriately belongs to Congress.
Even Professor Tadiar concedes to this conclusion, to wit:

xxxx

JUSTICE PERALTA:

Yeah, Just one question. You are suggesting that in order to determine the value of Peso you have
to take into consideration several factors.

PROFESSOR TADIAR:

Yes.

JUSTICE PERALTA:

Per capita income.

PROFESSOR TADIAR:

Per capita income.

JUSTICE PERALTA:

Consumer price index.

PROFESSOR TADIAR:

Yeah.

JUSTICE PERALTA:

Inflation ...
PROFESSOR TADIAR:

Yes.

JUSTICE PERALTA:

... and so on. Is the Supreme Court equipped to determine those factors?

PROFESSOR TADIAR:

There are many ways by which the value of the Philippine Peso can be determined utilizing all of
those economic terms.

JUSTICE PERALTA:

Yeah, but ...

PROFESSOR TADIAR:

And I don’t think it is within the power of the Supreme Court to pass upon and peg the value to One
Hundred (₱100.00) Pesos to ...

JUSTICE PERALTA:

Yeah.

PROFESSOR TADIAR:

... One (₱1.00.00) Peso in 1930.

JUSTICE PERALTA:

That is legislative in nature.

PROFESSOR TADIAR:

That is my position that the Supreme Court ...

JUSTICE PERALTA:

Yeah, okay.

PROFESSOR TADIAR:

... has no power to utilize the power of judicial review to in order to adjust, to make the adjustment
that is a power that belongs to the legislature.

JUSTICE PERALTA:

Thank you, Professor.

PROFESSOR TADIAR:

Thank you.46

Finally, the opinion advanced by Chief Justice Maria Lourdes P. A. Sereno echoes the view that the
role of the Court is not merely to dispense justice, but also the active duty to prevent injustice. Thus,
in order to prevent injustice in the present controversy, the Court should not impose an obsolete
penalty pegged eighty three years ago, but consider the proposed ratio of 1:100 as simply
compensating for inflation. Furthermore, the Court has in the past taken into consideration "changed
conditions" or "significant changes in circumstances" in its decisions.

Similarly, the Chief Justice is of the view that the Court is not delving into the validity of the
substance of a statute. The issue is no different from the Court’s adjustment of indemnity in crimes
against persons, which the Court had previously adjusted in light of current times, like in the case of
People v. Pantoja.47 Besides, Article 10 of the Civil Code mandates a presumption that the
lawmaking body intended right and justice to prevail.

With due respect to the opinions and proposals advanced by the Chief Justice and my Colleagues,
all the proposals ultimately lead to prohibited judicial legislation. Short of being repetitious and as
extensively discussed above, it is truly beyond the powers of the Court to legislate laws, such
immense power belongs to Congress and the Court should refrain from crossing this clear-cut
divide. With regard to civil indemnity, as elucidated before, this refers to civil liability which is
awarded to the offended party as a kind of monetary restitution. It is truly based on the value of
money. The same cannot be said on penalties because, as earlier stated, penalties are not only
based on the value of money, but on several other factors. Further, since the law is silent as to the
maximum amount that can be awarded and only pegged the minimum sum, increasing the amount
granted as civil indemnity is not proscribed. Thus, it can be adjusted in light of current conditions.

Now, with regard to the penalty imposed in the present case, the CA modified the ruling of the RTC.
The RTC imposed the indeterminate penalty of four (4) years and two (2) months of prision
correccional in its medium period, as minimum, to fourteen (14) years and eight (8) months of
reclusion temporal in its minimum period, as maximum. However, the CA imposed the indeterminate
penalty of four (4) years and two (2) months of prision correccional, as minimum, to eight (8) years of
prision mayor, as maximum, plus one (1) year for each additional ₱10,000.00, or a total of seven (7)
years.

In computing the penalty for this type of estafa, this Court's ruling in Cosme, Jr. v. People48 is highly
instructive, thus:

With respect to the imposable penalty, Article 315 of the Revised Penal Code provides:

ART. 315 Swindling (estafa). - Any person who shall defraud another by any of the means
mentioned hereinbelow shall be punished by:

1st. The penalty of prision correccional in its maximum period to prision mayor in its minimum period,
if the amount of the fraud is over 12,000 but does not exceed 22,000 pesos, and if such amount
exceeds the latter sum, the penalty provided in this paragraph shall be imposed in its maximum
period, adding one year for each additional 10,000 pesos; but the total penalty which may be
imposed shall not exceed twenty years. In such case, and in connection with the accessory penalties
which may be imposed and for the purpose of the other provisions of this Code, the penalty shall be
termed prision mayor or reclusion temporal, as the case may be.
The penalty prescribed by Article 315 is composed of only two, not three, periods, in which case,
Article 65 of the same Code requires the division of the time included in the penalty into three equal
portions of time included in the penalty prescribed, forming one period of each of the three portions.
Applying the latter provisions, the maximum, medium and minimum periods of the penalty prescribed
are:

Maximum - 6 years, 8 months, 21 days to 8 years

Medium - 5 years, 5 months, 11 days to 6 years, 8 months, 20 days

Minimum - 4 years, 2 months, 1 day to 5 years, 5 months, 10 days49

To compute the maximum period of the prescribed penalty, prisión correccional maximum to prisión
mayor minimum should be divided into three equal portions of time each of which portion shall be
deemed to form one period in accordance with Article 6550 of the RPC.51 In the present case, the
amount involved is ₱98,000.00, which exceeds ₱22,000.00, thus, the maximum penalty imposable
should be within the maximum period of 6 years, 8 months and 21 days to 8 years of prision mayor.
Article 315 also states that a period of one year shall be added to the penalty for every additional
₱10,000.00 defrauded in excess of ₱22,000.00, but in no case shall the total penalty which may be
imposed exceed 20 years.

Considering that the amount of ₱98,000.00 is ₱76,000.00 more than the ₱22,000.00 ceiling set by
law, then, adding one year for each additional ₱10,000.00, the maximum period of 6 years, 8 months
and 21 days to 8 years of prision mayor minimum would be increased by 7 years. Taking the
maximum of the prescribed penalty, which is 8 years, plus an additional 7 years, the maximum of the
indeterminate penalty is 15 years.

Applying the Indeterminate Sentence Law, since the penalty prescribed by law for the estafa charge
against petitioner is prision correccional maximum to prision mayor minimum, the penalty next lower
would then be prision correccional in its minimum and medium periods.

Thus, the minimum term of the indeterminate sentence should be anywhere from 6 months and 1
day to 4 years and 2 months.

One final note, the Court should give Congress a chance to perform its primordial duty of lawmaking.
The Court should not pre-empt Congress and usurp its inherent powers of making and enacting
laws. While it may be the most expeditious approach, a short cut by judicial fiat is a dangerous
proposition, lest the Court dare trespass on prohibited judicial legislation.

WHEREFORE, the Petition for Review on Certiorari dated November 5, 2007 of petitioner Lito
Corpuz is hereby DENIED. Consequently, the Decision dated March 22, 2007 and Resolution dated
September 5, 2007 of the Court of Appeals, which affirmed with modification the Decision dated July
30, 2004 of the Regional Trial Court, Branch 46, San Fernando City, finding petitioner guilty beyond
reasonable doubt of the crime of Estafa under Article 315, paragraph (1), sub-paragraph (b) of the
Revised Penal Code, are hereby AFFIRMED with MODIFICATION that the penalty imposed is the
indeterminate penalty of imprisonment ranging from THREE (3) YEARS, TWO (2) MONTHS and
ELEVEN DAYS of prision correccional, as minimum, to FIFTEEN (15) YEARS of reclusion temporal
as maximum.

Pursuant to Article 5 of the Revised Penal Code, let a Copy of this Decision be furnished the
President of the Republic of the Philippines, through the Department of Justice.
Also, let a copy of this Decision be furnished the President of the Senate and the Speaker of the
House of Representatives.

SO ORDERED.

DIOSDADO M. PERALTA
JARDELEZA, J.:
Our law states that every person criminally liable for a felony is also civilly
liable. This civil liability ex delicto may be recovered through a civil action
which, under our Rules of Court, is deemed instituted with the criminal
action. While they are actions mandatorily fused,[1] they are, in truth,
separate actions whose existences are not dependent on each other. Thus,
civil liability ex delicto survives an acquittal in a criminal case for failure to
prove guilt beyond reasonable doubt. However, the Rules of Court limits
this mandatory fusion to a civil action for the recovery of civil liability ex
delicto. It, by no means, includes a civil liability arising from a different
source of obligation, as in the case of a contract. Where the civil liability
is ex contractu, the court hearing the criminal case has no authority to
award damages.

The Case

This is a Petition for Review on Certiorari under Rule 45 of the Rules of

Court. Petitioner Gloria S. Dy (petitioner) seeks the reversal of the decision
of the Court of Appeals (CA) dated February 25, 2009 (Assailed
Decision)[2] ordering her to pay Mandy Commodities Company, Inc.
(MCCI) in the amount of P21,706,281.00.[3]

The Facts

Petitioner was the former General Manager of MCCL. In the course of her
employment, petitioner assisted MCCI in its business involving several
properties. One such business pertained to the construction of warehouses
over a property (Numancia Property) that MCCI leased from the Philippine
National Bank (PNB). Sometime in May 1996, in pursuit of MCCI's
business, petitioner proposed to William Mandy (Mandy), President of
MCCI, the purchase of a property owned by Pantranco. As the transaction
involved a large amount of money, Mandy agreed to obtain a loan from the
International China Bank of Commerce (ICBC). Petitioner represented that
she could facilitate the approval of the loan. True enough, ICBC granted a
loan to MCCI in the amount of P20,000,000.00, evidenced by a promissory
note. As security, MCCI also executed a chattel mortgage over the
warehouses in the Numancia Property. Mandy entrusted petitioner with the
obligation to manage the payment of the loan.[4]

In February 1999, MCCI received a notice of foreclosure over the

mortgaged property due to its default in paying the loan obligation.[5] In
order to prevent the foreclosure, Mandy instructed petitioner to facilitate
the payment of the loan. MCCI, through Mandy, issued 13 Allied Bank
checks and 12 Asia Trust Bank checks in varying amounts and in different
dates covering the period from May 18, 1999 to April 4, 2000.[6] The total
amount of the checks, which were all payable to cash, was P21,706,281.00.
Mandy delivered the checks to petitioner. Mandy claims that he delivered
the checks with the instruction that petitioner use the checks to pay the
loan.[7] Petitioner, on the other hand, testified that she encashed the checks
and returned the money to Mandy.[8] ICBC eventually foreclosed the
mortgaged property as MCCI continued to default in its obligation to pay.
Mandy claims that it was only at this point in time that he discovered that
not a check was paid to ICBC.[9]

Thus, on October 7, 2002, MCCI, represented by Mandy, filed a Compiamt-

Affidavit for Estafa[10] before the Office of the City Prosecutor of Manila. On
March 3, 2004, an Information[11] was filed against petitioner before the
Regional Trial Court (RTC) Manila.

After a full-blown trial, the RTC Manila rendered a decision[12] dated

November 11, 2005 (RTC Decision) acquitting petitioner. The RTC Manila
found that while petitioner admitted that she received the checks, the
prosecution failed to establish that she was under any obligation to deliver
them to ICBC in payment of MCCFs loan. The trial court made this finding
on the strength of Mandy's admission that he gave the checks to petitioner
with the agreement that she would encash them. Petitioner would then pay
ICBC using her own checks. The trial court further made a finding that
Mandy and petitioner entered into a contract of loan.[13] Thus, it held that
the prosecution failed to establish an important element of the crime
of estafa—misappropriation or conversion. However, while the RTC Manila
acquitted petitioner, it ordered her to pay the amount of the checks. The
dispositive portion of the RTC Decision states —
WHEREFORE, the prosecution having failed to establish the guilt of the
accused beyond reasonable doubt, judgment is hereby rendered
ACQUITTING the accused of the offense charged. With costs de officio.

The accused is however civilly liable to the complainant for the amount of
P21,706,281.00.

SO ORDERED.[14]
Petitioner filed an appeal[15] of the civil aspect of the RTC Decision with the
CA. In the Assailed Decision,[16] the CA found the appeal without merit. It
held that the acquittal of petitioner does not necessarily absolve her of civil
liability. The CA said that it is settled that when an accused is acquitted on
the basis of reasonable doubt, courts may still find him or her civilly liable if
the evidence so warrant. The CA explained that the evidence on record
adequately prove that petitioner received the checks as a loan from MCCI.
Thus, preventing the latter from recovering the amount of the checks would
constitute unjust enrichment. Hence, the Assailed Decision ruled

WHEREFORE, in view of the foregoing, the appeal is DENIED. The

Decision dated November 11, 2005 of the Regional Trial Court, Manila,
Branch 33 in Criminal Case No. 04-224294 which found Gloria Dy civilly
liable to William Mandy is AFFIRMED.

SO ORDERED.[17]
The CA also denied petitioner's motion for reconsideration in a
resolution[18] dated August 3, 2009.

Hence, this Petition for Review on Certiorari (Petition). Petitioner argues

that since she was acquitted for failure of the prosecution to prove all the
elements of the crime charged, there was therefore no crime
committed.[19] As there was no crime, any civil liability ex delicto cannot be
awarded.

The Issues

The central issue is the propriety of making a finding of civil liability in a

criminal case for estafa when the accused is acquitted for failure of the
prosecution to prove all the elements of the crime charged.
 The Ruling of the Court

We grant the petition.

Civil Liability Arising From Crime

Our laws recognize a bright line distinction between criminal and civil
liabilities. A crime is a liability against the state. It is prosecuted by and for
the state. Acts considered criminal are penalized by law as a means to
protect the society from dangerous transgressions. As criminal liability
involves a penalty affecting a person's liberty, acts are only treated criminal
when the law clearly says so. On the other hand, civil liabilities take a less
public and more private nature. Civil liabilities are claimed through civil
actions as a means to enforce or protect a right or prevent or redress a
wrong.[20] They do not carry with them the imposition of imprisonment as a
penalty. Instead, civil liabilities are compensated in the form of damages.

Nevertheless, our jurisdiction recognizes that a crime has a private civil

component. Thus, while an act considered criminal is a breach of law
against the State, our legal system allows for the recovery of civil damages
where there is a private person injured by a criminal act. It is in recognition
of this dual nature of a criminal act that our Revised Penal Code provides
that every person criminally liable is also civilly liable.[21] This is the concept
of civil liability ex delicto.

This is echoed by the New Civil Code when it recognizes acts or omissions
punished by law as a separate source of obligation.[22] This is reinforced by
Article 30 of the same code which refers to the filing of a separate civil
action to demand civil liability arising from a criminal offense.[23]

The Revised Penal Code fleshes out this civil liability in Article 104[24] which
states that it includes restitution, reparation of damage caused and
indemnification for consequential damages.

Rules of procedure for criminal and civil actions involving the same act or
omission

The law and the rules of procedure provide for a precise mechanism in
instituting a civil action pertaining to an act or omission which is also
subject of a criminal case. Our Rules of Court prescribes a kind of fusion
such that, subject to certain defined qualifications, when a criminal action
is instituted, the civil action for the recovery of the civil liability arising
from the offense is deemed instituted as well.[25]

However, there is an important difference between civil and criminal

proceedings that require a fine distinction as to how these twin actions shall
proceed. These two proceedings involve two different standards of proof. A
criminal action requires proof of guilt beyond reasonable doubt while a civil
action requires a lesser quantum of proof, that of preponderance of
evidence. This distinction also agrees with the essential principle in our
legal system that while a criminal liability carries with it a corresponding
civil liability, they are nevertheless separate and distinct. In other words,
these two liabilities may co-exist but their existence is not dependent on
each other.[26]

The Civil Code states that when an accused in a criminal prosecution is

acquitted on the ground that his guilt has not been proven beyond
reasonable doubt, a civil action for damages for the same act or omission
may be filed. In the latter case, only preponderance of evidence is
required.[27] This is supported by the Rules of Court which provides that the
extinction of the criminal action does not result in the extinction of the
corresponding civil action.[28] The latter may only be extinguished when
there is a "finding in a final judgment in the criminal action that the act or
omission from which the civil liability may arise did not
exist."[29] Consistent with this, the Rules of Court requires that in judgments
of acquittal the court must state whether "the evidence of the prosecution
absolutely failed to prove the guilt of the accused or merely failed to prove
his guilt beyond reasonable doubt. In either case, the judgment shall
determine if the act or omission from which the civil liability might arise
did not exist."[30]

Thus, whether an exoneration from the criminal action should affect the
corresponding civil action depends on the varying kinds of acquittal.
In Manantan v. Court of Appeals,[31] we explained —

Our law recognizes two kinds of acquittal, with different effects on the civil
liability of the accused. First is an acquittal on the ground that the accused
is not the author of the act or omission complained of. This instance closes
the door to civil liability, for a person who has been found to be not the
perpetrator of any act or omission cannot and can never be held liable for
such act or omission. There being no delict civil liability ex delicto is out of
the question, and the civil action, if any, which may be instituted must be
based on grounds other than the delict complained of. This is the situation
contemplated in Rule 111 of the Rules of Court. The second instance is an
acquittal based on reasonable doubt on the guilt of the accused. In this case,
even if the guilt of the accused has not been satisfactorily established, he is
not exempt from civil liability which may be proved by preponderance of
evidence only. This is the situation contemplated in Article 29 of the Civil
Code, where the civil action for damages is "for the same act or omission."
Although the two actions have different purposes, the matters discussed in
the civil case are similar to those discussed in the criminal case. However,
the judgment In the criminal proceeding cannot be read in evidence In the
civil action to establish any fact there determined, even though both actions
involve the same act or omission. The reason for this rule is that the parties
are not the same and secondarily, different rules of evidence are applicable.
Hence, notwithstanding herein petitioner's acquittal, the Court of Appeals
in determining whether Article 29 applied, was not precluded from looking
into the question of petitioner's negligence or reckless imprudence.[32]
In Dayap v. Sendiong,[33] we further said —

The acquittal of the accused does not automatically preclude a judgment

against him on the civil aspect of the case. The extinction of the penal
action does not carry with it the extinction of the civil liability where: (a)
the acquittal is based on reasonable doubt as only preponderance of
evidence is required; (b) the court declares that the liability of the accused
is only civil; and (c) the civil liability of the accused does not arise from or is
not based upon the crime of which the accused is acquitted. However, the
civil action based on delict may be deemed extinguished if mere is a finding
on the final judgment in the criminal action that the act or omission from
which the civil liability may arise did not exist or where the accused did not
commit the acts or omission imputed to him.[34]
Hence, a civil action filed for the purpose of enforcing civil liability ex
delicto, even if mandatorily instituted with the corresponding criminal
action, survives an acquittal when it is based on the presence of reasonable
doubt. In these instances, while the evidence presented does not establish
the fact of the crime with moral certainty, the civil action still prevails for as
long as the greater weight of evidence tilts in favor of a finding of liability.
This means that while the mind of the court cannot rest easy in penalizing
the accused for the commission of a crime, it nevertheless finds that he or
she committed or omitted to perform acts which serve as a separate source
of obligation. There is no sufficient proof that the act or omission is
criminal beyond reasonable doubt, but there is a preponderance of evidence
to show that the act or omission caused injury which demands
compensation.

Civil Liability Ex Delicto in Estafa Cases

Our laws penalize criminal fraud which causes damage capable of

pecuniary estimation through estafa under Article 315 of the Revised Penal
Code. In general, the elements of estafa are:

That the accused defrauded another (a) by abuse of confidence, or (b)

(1)
by means of deceit; and

That damage or prejudice capable of pecuniary estimation is caused to

(2)
the offended party or third person.
The essence of the crime is the unlawful abuse of confidence or deceit in
order to cause damage. As this Court previously held, "the element of fraud
or bad faith is indispensable."[35] Our law abhors the act of defrauding
another person by abusing his trust or deceiving him, such that, it
criminalizes this kind of fraud.

Article 315 of the Revised Penal Code identifies the circumstances which
constitute estafa. Article 315, paragraph 1 (b) states that estafa is
committed by abuse of confidence —

Art. 315. Swindling (estafa) - x x x (b) By misappropriating or converting, to

the prejudice of another, money, goods, or any other personal property
received by the offender in trust or on commission, or for administration,
or under any other obligation involving the duty to make delivery of or to
return the same, even though such obligation be totally or partially
guaranteed by a bond; or by denying having received such money, goods, or
other property.
In this kind of estafa, the fraud which the law considers as criminal is the
act of misappropriation or conversion. When the element of
misappropriation or conversion is missing, there can be no estafa. In such
case, applying the foregoing discussions on civil liability ex delicto, there
can be no civil liability as there is no act or omission from which any civil
liability may be sourced. However, when an accused is acquitted because a
reasonable doubt exists as to the existence of misappropriation or
conversion, then civil liability may still be awarded. This means that, while
there is evidence to prove fraud, such evidence does not suffice to convince
the court to the point of moral certainty that the act of fraud amounts
to estafa. As the act was nevertheless proven, albeit without sufficient proof
justifying the imposition of any criminal penalty, civil liability exists.

In this case, the RTC Manila acquitted petitioner because the prosecution
failed to establish by sufficient evidence the element of misappropriation or
conversion. There was no adequate evidence to prove that Mandy gave the
checks to petitioner with the instruction that she will use them to pay the
ICBC loan. Citing Mandy's own testimony in open court, the RTC Manila
held that when Mandy delivered the checks to petitioner, their agreement
was that it was a "sort of loan."[36] In the dispositive portion of the RTC
Decision, the RTC Manila ruled that the prosecution "failed to establish the
guilt of the accused beyond reasonable doubt."[37] It then proceeded to
order petitioner to pay the amount of the loan.

The ruling of the RTC Manila was affirmed by the CA. It said that "[t]he
acquittal of Gloria Dy is anchored on the ground that her guilt was not
proved beyond reasonable doubt - not because she is not the author of the
act or omission complained of. x x x The trial court found no trickery nor
deceit in obtaining money from the private complainant; instead, it
concluded that the money obtained was undoubtedly a loan."[38]

Our jurisprudence on this matter diverges.

Earlier cases ordered the dismissal of the civil action for recovery of civil
liability ex delicto whenever there is a finding that there was no estafa but
rather an obligation to pay under a contract. In People v. Pantig,[39] this
Court affirmed the ruling of the lower court acquitting Pantig, but revoked
the portion sentencing him to pay the offended party the amount of money
alleged to have been obtained through false and fraudulent representations,
thus —

The trial court found as a fact that the sum of P1,200, ordered to be paid in
the judgment of acquittal, was received by the defendant-appellant as loan.
This finding is inconsistent with the existence of the criminal act charged in
the information. The liability of the defendant for the return of the
amount so received arises from a civil contract, not from a
criminal act, and may not be enforced in the criminal case.

The portion of the judgment appealed from, which orders the defendant-
appellant to pay the sum of Pi ,200 to the offended party, is hereby revoked,
without prejudice to the filing of a civil action for the recovery of the said
amount.[40]
This was also the import of the ruling in People v. Singson.[41] In that case,
this Court found that "the evidence [was] not sufficient to establish the
existence of fraud or deceit on the part of the accused. x x x And when there
is no proven deceit or fraud, there is no crime of estafa."[42] While we also
said that the established facts may prove Singson's civil liability (obligation
to pay under a contract of sale), we nevertheless made no finding of civil
liability because "our mind cannot rest easy on the certainty of
guilt"[43] considering the above finding. The dispositive portion stated that
Singson is acquitted "without prejudice to any civil liability which may be
established in a civil case against her."[44]

However, our jurisprudence on the matter appears to have changed in later

years.

In Eusebio-Calderon v. People,[45] this Court affirmed the finding of the CA

that Calderon "did not employ trickery or deceit in obtaining money from
the private complainants, instead, it concluded that the money obtained
was undoubtedly loans for which [Calderon] paid interest."[46] Thus, this
Court upheld Calderon's acquittal of estafa, but found her civilly liable for
the principal amount borrowed from the private complainants.[47]

The ruling was similar in People v. Cuyugan.[48] In that case, we acquitted

Cuyugan of estafa for failure of the prosecution to prove fraud. We held that
the transaction between Cuyugan and private complainants was a loan to
be used by Cuyugan in her business. Thus, this Court ruled that Cuyugan
has the obligation, which is civil in character, to pay the amount
borrowed.[49]

We hold that the better rule in ascertaining civil liability in estafa cases is
that pronounced in Pantig and Singson. The rulings in these cases are more
in accord with the relevant provisions of the Civil Code, and the Rules of
Court. They are also logically consistent with this Court's pronouncement
in Manantan.

Under Pantig and Singson, whenever the elements of estafa are not
established, and that the delivery of any personal property was made
pursuant to a contract, any civil liability arising from the estafa cannot be
awarded in the criminal case. This is because the civil liability arising from
the contract is not civil liability ex delicto, which arises from the same act or
omission constituting the crime. Civil liability ex delicto is the liability
sought to be recovered in a civil action deemed instituted with the criminal
case.

The situation envisioned in the foregoing cases, as in this case, is civil

liability ex contractu where the civil liability arises from an entirely
different source of obligation. Therefore, it is not the type of civil action
deemed instituted in the criminal case, and consequently must be filed
separately. This is necessarily so because whenever the court makes a
finding that the elements of estafa do not exist, it effectively says that there
is no crime. There is no act or omission that constitutes criminal fraud.
Civil liability ex delicto cannot be awarded as it cannot be sourced from
something that does not exist.

When the court finds that the source of obligation is in fact, a contract, as in
a contract of loan, it takes a position completely inconsistent with the
presence of estafa. In estafa, a person parts with his money because of
abuse of confidence or deceit. In a contract, a person willingly binds himself
or herself to give something or to render some service.[50] In estafa, the
accused's failure to account for the property received amounts to criminal
fraud. In a contract, a party's failure to comply with his obligation is only a
contractual breach. Thus, any finding that the source of obligation is a
contract negates estafa. The finding, in turn, means that there is no civil
liability ex delicto. Thus, the rulings in the foregoing cases are consistent
with the concept of fused civil and criminal actions, and the different
sources of obligations under our laws.

We apply this doctrine to the facts of this case. Petitioner was acquitted by
the RTC Manila because of the absence of the element of misappropriation
or conversion. The RTC Manila, as affirmed by the CA, found that Mandy
delivered the checks to petitioner pursuant to a loan agreement. Clearly,
there is no crime of estafa. There is no proof of the presence of any act or
omission constituting criminal fraud. Thus, civil liability ex delicto cannot
be awarded because there is no act or omission punished by law which can
serve as the source of obligation. Any civil liability arising from the loan
takes the nature of a civil liability ex contractu. It does not pertain to the
civil action deemed instituted with the criminal case.

In Manantan, this Court explained the effects of this result on the civil
liability deemed instituted with the criminal case. At the risk of
repetition, Manantan held that when there is no delict, "civil liability ex
delicto is out of the question, and the civil action, if any, which may be
instituted must be based on grounds other than the delict complained
of."[51] In Dy's case, the civil liability arises out of contract—a different
source of obligation apart from an act or omission punished by law—and
must be claimed in a separate civil action.

Violation of Due Process

We further note that the evidence on record never fully established the
terms of this loan contract. As the trial before the RTC Manila was focused
on proving estafa, the loan contract was, as a consequence, only
tangentially considered. This provides another compelling reason why the
civil liability arising from the loan should be instituted in a separate civil
case. A civil action for collection of sum of money filed before the proper
court will provide for a better venue where the terms of the loan and other
relevant details may be received. While this may postpone a warranted
recovery of the civil liability, this Court deems it more important to uphold
the principles underlying the inherent differences in the various sources of
obligations under our law, and the rule that fused actions only refer to
criminal and civil actions involving the same act or omission. These legal
tenets play a central role in this legal system. A confusion of these
principles will ultimately jeopardize the interests of the parties involved.
Actions focused on proving estafa is not the proper vehicle to thresh out
civil liability arising from a contract.[52] The Due Process Clause of the
Constitution dictates that a civil liability arising from a contract must be
litigated in a separate civil action.

Section 1 of the Bill of Rights states that no person shall be deprived of

property without due process of law. This provision protects a person's
right to both substantive and procedural due process. Substantive due
process looks into the validity of a law and protects against
arbitrariness.[53] Procedural due process, on the other hand, guarantees
procedural fairness.[54] It requires an ascertainment of "what process is due,
when it is due, and the degree of what is due."[55] This aspect of due process
is at the heart of this case.

In general terms, procedural due process means the right to notice and
hearing.[56] More specifically, our Rules of Court provides for a set of
procedures through which a person may be notified of the claims against
him or her as well as methods through which he or she may be given the
adequate opportunity to be heard.

The Rules of Court requires that any person invoking the power of the
judiciary to protect or enforce a right or prevent or redress a wrong[57] must
file an initiatory pleading which embodies a cause of action,[58] which is
defined as the act or omission by which a party violates a right of
another.[59] The contents of an initiatory pleading alleging a cause of action
will vary depending on the source of the obligation involved. In the case of
an obligation arising from a contract, as in this case, the cause of action in
an initiatory pleading will involve the duties of the parties to the contract,
and what particular obligation was breached. On the other hand, when the
obligation arises from an act or omission constituting a crime, the cause of
action must necessarily be different. In such a case, the initiatory pleading
will assert as a cause of action the act or omission of respondent, and the
specific criminal statute he or she violated. Where the initiatory pleading
fails to state a cause of action, the respondent may file a motion to dismiss
even before trial.[60] These rules embody the fundamental right to notice
under the Due Process Clause of the Constitution.

In a situation where a court (in a fused action for the enforcement of

criminal and civil liability) may validly order an accused-respondent to pay
an obligation arising from a contract, a person's right to be notified of the
complaint, and the right to have the complaint dismissed if there is no
cause of action, are completely defeated. In this event, the accused-
respondent is completely unaware of the nature of the liability claimed
against him or her at the onset of the case. The accused-respondent will not
have read any complaint stating the cause of action of an obligation arising
from a contract. All throughout the trial, the accused-respondent is made to
believe that should there be any civil liability awarded against him or her,
this liability is rooted from the act or omission constituting the crime. The
accused-respondent is also deprived of the remedy of having the complaint
dismissed through a motion to dismiss before trial. In a fused action, the
accused-respondent could not have availed of this remedy because he or
she was not even given an opportunity to ascertain what cause of action to
look for in the initiatory pleading. In such a case, the accused-respondent is
blindsided. He or she could not even have prepared the appropriate
defenses and evidence to protect his or her interest. This is not the concept
of fair play embodied in the Due Process Clause. It is a clear violation of a
person's right to due process.

The Rules of Court also allows a party to a civil action certain remedies that
enable him or her to effectively present his or her case. A party may file a
cross-claim, a counterclaim or a third-party complaint.[61] The Rules of
Court prohibits these remedies in a fused civil and criminal case.[62] The
Rules of Court requires that any cross-claim, counterclaim or third-party
complaint must be instituted in a separate civil action.[63] In a legal regime
where a court may order an accused in a fused action to pay civil liability
arising from a contract, the accused-respondent is completely deprived of
the remedy to file a cross-claim, a counterclaim or a third-party complaint.
This—coupled with an accused-respondent's inability to adequately prepare
his or her defense because of lack of adequate notice of the claims against
him or her—prevents the accused-respondent from having any right to a
meaningful hearing. The right to be heard under the Due Process Clause
requires not just any kind of an opportunity to be heard. It mandates that a
party to a case must have the chance to be heard in a real and meaningful
sense. It does not require a perfunctory hearing, but a court proceeding
where the party may adequately avail of the procedural remedies granted to
him or her. A court decision resulting from this falls short of the mandate of
the Due Process Clause.

Indeed, the language of the Constitution is clear. No person shall be

deprived of property without due process of law. Due Process, in its
procedural sense, requires, in essence, the right to notice and hearing.
These rights are further fleshed out in the Rules of Court. The Rules of
Court enforces procedural due process because, to repeat the words of this
Court in Secretary of Justice v. Lantion, it provides for "what process is due,
when it is due, and the degree of what is due."[64] A court ordering an
accused in a fused action to pay his or her contractual liability deprives him
or her of his or her property without the right to notice and hearing as
expressed in the procedures and remedies under the Rules of Court. Thus,
any court ruling directing an accused in a fused action to pay civil liability
arising from a contract is one that completely disregards the Due Process
Clause. This ruling must be reversed and the Constitution upheld.

Conclusion

The lower courts erred when they ordered petitioner to pay her civil
obligation arising from a contract of loan in the same criminal case where
she was acquitted on the ground that there was no crime. Any contractual
obligation she may have must be litigated in a separate civil action
involving the contract of loan. We clarify that in cases where the accused is
acquitted on the ground that there is no crime, the civil action deemed
instituted with the criminal case cannot prosper precisely because there is
no delict from which any civil obligation may be sourced. The peculiarity of
this case is the finding that petitioner, in fact, has an obligation arising from
a contract. This civil action arising from the contract is not necessarily
extinguished. It can be instituted in the proper court through the proper
civil action.

We note that while there is no written contract of loan in this case, there is
an oral contract of loan which must be brought within six years.[65] Under
the facts of the case, it appears that any breach in the obligation to pay the
loan may have happened between 1996 and 1999, or more than six years
since this case has been instituted. This notwithstanding, we find that the
civil action arising from the contract of loan has not yet prescribed. Article
1150 of the Civil Code states —

Art. 1150. The time for prescription for all kinds of actions, when there is no
special provision which ordains otherwise, shall be counted from the day
they may be brought.
We held in numerous cases that it is the legal possibility of bringing the
action that determines the starting point for the computation of the period
of prescription.[67] We highlight the unique circumstances surrounding this
case. As discussed in this decision, there has been diverse jurisprudence as
to the propriety of ordering an accused to pay an obligation arising from a
contract in the criminal case where the accused was acquitted on the
ground that there is no crime. Litigants, such as MCCI, cannot be blamed
for relying on prior rulings where the recovery on a contract of loan in a
criminal case for estafa was allowed. We have found the opportunity to
clarify this matter through this decision. As it is only now that we delineate
the rules governing the fusion of criminal and civil actions pertaining
to estafa, it is only upon the promulgation of this judgment that litigants
have a clear understanding of the proper recourse in similar cases. We
therefore rule that insofar as MCCI is concerned, the filing of an action, if
any (that may be sourced from the contract of loan), becomes a legal
possibility only upon the finality of this decision which definitively ruled
upon the principles on fused actions.

We add, however, that upon finality of this decision, prospective litigants

should become more circumspect in ascertaining their course of action in
similar cases. Whenever a litigant erroneously pursues an estafa case, and
the accused is subsequently acquitted because the obligation arose out of a
contract, the prescriptive period will still be counted from the time the
cause of action arose. In this eventuality, it is probable that the action has
already prescribed by the time the criminal case shall have been completed.
This possibility demands that prospective litigants do not haphazardly
pursue the filing of an estafa case in order to force an obligor to pay his or
her obligation with the threat of criminal conviction. It compels litigants to
be honest and fair in their judgment as to the proper action to be filed. This
ruling should deter litigants from turning to criminal courts as their
collection agents, and should provide a disincentive to the practice of filing
of criminal cases based on unfounded grounds in order to provide a litigant
a bargaining chip in enforcing contracts.

WHEREFORE, in view of the foregoing, the Petition is GRANTED. The

Decision of the CA dated February 25, 2009 is REVERSED. This is
however, without prejudice to any civil action which may be filed to claim
civil liability
G.R. No. 202124

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
IRENEO JUGUETA, Accused-Appellant.

DECISION

PERALTA, J.:

This resolves the appeal from the Decision 1 of the Court of Appeals (CA) dated January 30, 2012 in
CA-G.R. CR HC No. 03252. The CA affirmed the judgments of the Regional Trial Court (RTC),
Branch 61, Gumaca, Quezon, finding accused-appellant Ireneo Jugueta y Flores guilty beyond
reasonable doubt of Double Murder in Criminal Case No. 7698-G and Multiple Attempted Murder in
Criminal Case No. 7702-G.

In Criminal Case No. 7698-G, appellant was charged with Double Murder, defined and penalized
under Article 248 of the Revised Penal Code, allegedly committed as follows:

That on or about the 6th day of June 2002, at about 9:00 o'clock in the evening, at Barangay Caridad
Ilaya, Municipality of Atimonan, Province of Quezon, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, armed with a caliber.22 firearm, with intent to kill,
qualified by treachery and evident premeditation, did then and there willfully, unlawfully and
feloniously attack, assault and shoot with said firearm Mary Grace Divina, a minor, 13 years old, who
suffered the following:

"Gunshot wound -

Point of Entry – lower abdomen, right, 2 cm. from the midline and 6 cm. from the level of the
umbilicus, directed upward toward the left upper abdomen."

and Claudine Divina, a minor, 3 ½ years of age, who suffered the following:

"Gunshot wound -

Point of Entry - 9th ICS along the mid-axillary line, right, 1 cm. diameter

Point of Exit - 7th ICS mid-axillary line, left;"

which directly caused their instant death.

That the crime committed in the dwelling of the offended party who had not given provocation for the
attack and the accused took advantage of nighttime to facilitate the commission of the offense.

Contrary to law.2

In Criminal Case No. 7702-G, appellant, together with Gilbert Estores and Roger San Miguel, was
charged with Multiple Attempted Murder, allegedly committed as follows:
That on or about 9:00 o’clock in the evening of 6th day of June, 2002, at Barangay Caridad Ilaya,
Municipality of Atimonan, Province of Quezon, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring and confederating together and mutually
helping one another, armed with short firearms of undetermined calibres, with intent to kill, qualified
by treachery, with evident premeditation and abuse of superior strength, did then and there wilfully,
unlawfully and feloniously attack, assault, and shoot with the said firearms the house occupied by
the family of Norberto Divina, thereby commencing the commission of the crime of Murder, directly
by overt acts, but did not perform all the acts of execution which would have produced it by reason of
some cause or accident other than the spontaneous desistance of the accused, that is, the
occupants Norberto Divina, his wife Maricel Divina and children Elizabeth Divina and Judy Ann
Divina, both elementary pupils and who are minors, were not hit.

CONTRARY TO LAW.3

Roger San Miguel, however, moved for reinvestigation of the case against them. At said
proceedings, one Danilo Fajarillo submitted his sworn statement stating that on June 6, 2002, he
saw appellant with a certain "Hapon" and Gilbert Estores at the crime scene, but it was only
appellant who was carrying a firearm while the other two had no participation in the shooting
incident. Fajarillo further stated that Roger San Miguel was not present at the crime scene. Based on
the sworn statement of Fajarillo, the Provincial Prosecutor found no prima facie case against Gilbert
Estores and Roger San Miguel.4 Thus, upon motion of the prosecution, the case for Attempted
Murder against Gilbert Estores and Roger San Miguel was dismissed, and trial proceeded only as to
appellant.5

At the trial, the prosecution presented the testimonies of Norberto Divina, the victim, and Dr. Lourdes
Taguinod who executed the Medico-Legal Certificate and confirmed that the children of Norberto,
namely, Mary Grace and Claudine, died from gunshot wounds. Dr. Taguinod noted that the
trajectory of the bullet wounds showed that the victims were at a higher location than the shooter,
but she could not tell what kind of ammunitions were used.6

Norberto testified that the appellant is his brother-in-law. He recounted that in the evening of June 6,
2002, as his entire family lay down on the floor of their one-room nipa hut to sleep, the "sack" walling
of their hut was suddenly stripped off, and only the supporting bamboo (fences) remained. With the
covering of the wall gone, the three (3) men responsible for the deed came into view. Norberto
clearly saw their faces which were illuminated by the light of a gas lamp hanging in their small hut.
Norberto identified the 3 men as appellant, Gilbert Estores and Roger San Miguel.

The 3 men ordered Norberto to come down from his house, but he refused to do so. The men then
uttered, "Magdasal ka na at katapusan mo na ngayon." Norberto pleaded with them, saying, "Maawa
kayo sa amin, matanda na ako at marami akong anak. Anong kasalanan ko sa inyo?" Despite such
plea for mercy, a gunshot was fired, and Norberto immediately threw his body over his children and
wife in an attempt to protect them from being hit. Thereafter, he heard successive gunshots being
fired in the direction where his family huddled together in their hut.7

When the volley of shots ceased and the three (3) men left, Norberto saw that his two (2) young
daughters were wounded. His wife went out of their house to ask for help from neighbors, while he
and his older daughter carried the two (2) wounded children out to the street. His daughter Mary
Grace died on the way to the hospital, while Claudine expired at the hospital despite the doctors'
attempts to revive her.8
In answer to questions of what could have prompted such an attack from appellant, Norberto replied
that he had a previous altercation with appellant who was angered by the fact that he (Norberto) filed
a case against appellant's two other brothers for molesting his daughter.9

On the other hand, appellant was only able to proffer denial and alibi as his defense. Appellant's
testimony, along with those of Gilbert Estores, Roger San Miguel, Isidro San Miguel and Ruben
Alegre, was that he (appellant) was just watching TV at the house of Isidro San Miguel, where he
had been living for several years, at the time the shooting incident occurred. However, he and the
other witnesses admitted that said house was a mere five-minute walk away from the crime scene.10

Finding appellant’s defense to be weak, and ascribing more credence to the testimony of Norberto,
the trial court ruled that the evidence clearly established that appellant, together with two other
assailants, conspired to shoot and kill the family of Norberto. Appellant was then convicted of Double
Murder in Criminal Case No. 7698-G and Multiple Attempted Murder in Criminal Case No. 7702-G.

The dispositive portion of the trial court’s judgment in Criminal Case No. 7698-G reads:

WHEREFORE and in view of all the foregoing, the Court finds accused Ireneo Jugueta guilty beyond
reasonable doubt for Double Murder defined and punished under Article 248 of the Revised Penal
Code and is hereby sentenced to suffer Reclusion Perpetua for the death of Mary Grace Divina and
to indemnify her heirs in the amount of Php50,000.00 and another to suffer Reclusion Perpetua for
the death of Claudine Divina and accused is further ordered to indemnify the heirs of Claudine
Divina in the sum of Php50,000.00. In addition, he is hereby ordered to pay the heirs of the victims
actual damages in the amount of Php16,150.00 and to pay for the costs.

SO ORDERED.11

On the other hand, the dispositive portion of the trial court’s judgment in Criminal Case No. 7702-G,
reads:

WHEREFORE and in view of all the foregoing, the Court finds accused Ireneo Jugueta guilty beyond
reasonable doubt for Multiple Attempted Murder defined and penalized under Article 248 in relation
to Article 51 of the Revised Penal Code and is hereby sentenced to suffer the penalty of FOUR (4)
YEARS and TWO (2) MONTHS of Prision Correccional as minimum to EIGHT (8) YEARS and ONE
(1) DAY of Prision Mayor as maximum for each of the offended parties; Norberto Divina, Maricel
Divina, Elizabeth Divina and Judy Ann Divina. Further, accused is ordered to pay for the costs of the
suit.

SO ORDERED.12

Aggrieved by the trial court's judgments, appellant appealed to the CA. On January 30, 2012, the CA
rendered a Decision affirming appellant's conviction for the crimes charged.13

Dissatisfied with the CA Decision, appellant elevated the case to this Court. On July 30, 2012, the
Court issued a Resolution14 notifying the parties that they may submit their respective Supplemental
Briefs. Both parties manifested that they will no longer submit supplemental briefs since they had
exhaustively discussed their positions before the CA.15

The main issue advanced in the Appellant's Brief deals with the inconsistencies in Norberto's
testimony, such as his failure to state from the beginning that all three assailants had guns, and to
categorically identify appellant as the one holding the gun used to kill Norberto’s children.
The appeal is unmeritorious.

At the outset, it must be stressed that factual findings of the trial court, its assessment of the
credibility of witnesses and the probative weight of their testimonies, and the conclusions based on
these factual findings are to be given the highest respect. Thus, generally, the Court will not
recalibrate and re-examine evidence that had been analyzed and ruled upon by the trial court and
affirmed by the CA.16

The evidence on record fully supports the trial court's factual finding, as affirmed by the CA, that
appellant acted in concert with two other individuals, all three of them carrying firearms and
simultaneously firing at Norberto and his family, killing his two young daughters. Norberto clearly
saw all of the three assailants with their firearms as there is illumination coming from a lamp inside
their house that had been laid bare after its walling was stripped off, to wit:

Q: When the wall of your house was stripped off by these three persons at the same time, do you
have light in your house?

A: Yes, sir.

Q: What kind of light was there?

A: A gas lamp.

Q: Where was the gas lamp placed at that time?

A: In the middle of our house.

xxxx

Q: when did they fire a shot?

A: On the same night, when they had stripped off the wallings.

Q: How many gunshots did you hear?

A: Only one.

Q: Do you know the sound of a gunshot? A firearm?

A: Yes, sir, it is loud? (sic)

xxxx

Q: After the first shot, was there any second shot?

A: After that, successive fire shot (sic) followed and my youngest and eldest daughters were hit.

xxxx

Q: How many of the three were holding guns at that time?

A: All of them.

Q: You mean to tell the honorable court that these three persons were

having one firearm each?

A: Yes, sir.

Q: And they fired shots at the same time?

A: Yes, sir.

Q: To what direction these three persons fired (sic) their firearms during that night?

A: To the place where we were.

Q: When those three persons were firing their respective firearms, what was your position then?

A: I ordered my children to lie down.

Q: How about you, what was your position when you were ordering your children to lie down?

A: (witness demonstrated his position as if covering his children with his body and ordering them to
line (sic) down face down)

Q: Mr. Witness, for how long did these three persons fire shots at your house?

A: Less than five minutes, sir.

Q: After they fired their shots, they left your house?

A: Yes, sir.

Q: And when these persons left your house, you inspected your children to see what happened to
them?

A: Yes, sir, they were hit.

x x x17

Appellant and the two other malefactors are equally responsible for the death of Norberto's
daughters because, as ruled by the trial court, they clearly conspired to kill Norberto's family.
Conspiracy exists when two or more persons come to an agreement regarding the commission of a
crime and decide to commit it. Proof of a prior meeting between the perpetrators to discuss the
commission of the crime is not necessary as long as their concerted acts reveal a common design
and unity of purpose. In such case, the act of one is the act of all.18 Here, the three men
undoubtedly acted in concert as they went to the house of Norberto together, each with his own
firearm. It is, therefore, no longer necessary to identify and prove that it is the bullet particularly fired
from appellant's firearm that killed the children.
Murder is defined under Article 248 of the Revised Penal Code as the unlawful killing of a person,
which is not parricide or infanticide, attended by circumstances such as treachery or evident
premeditation.19 The presence of any one of the circumstances enumerated in Article 248 of the
Code is sufficient to qualify a killing as murder.20 The trial court correctly ruled that appellant is liable
for murder because treachery attended the killing of Norberto’s two children, thus:

x x x Evidence adduced show that the family of Norberto Divina, were all lying down side by side
about to sleep on June 6, 2002 at around 9:00 o’clock in the evening, when suddenly their wall made
of sack was stripped off by [appellant] Ireneo Jugueta, Roger San Miguel and Gilberto Alegre (sic)
[Gilbert Estores]. They ordered him to go out of their house and when he refused despite his plea for
mercy, they fired at them having hit and killed his two (2) daughters. The family of Norberto Divina
were unarmed and his children were at very tender ages. Mary Grace Divina and Claudine who were
shot and killed were 13 years old and 3 ½ years old respectively. In this case, the victims were
defenseless and manifestly overpowered by armed assailants when they were gunned down. There
was clear showing that the attack was made suddenly and unexpectedly as to render the victims
helpless and unable to defend themselves. Norberto and his wife and his children could have
already been asleep at that time of the night. x x x 21

Verily, the presence of treachery qualified the killing of the hapless children to murder. As held
in People v. Fallorina,22 the essence of treachery is the sudden and unexpected attack on an
unsuspecting victim without the slightest provocation on his part. Minor children, who by reason of
their tender years, cannot be expected to put up a defense. When an adult person illegally attacks a
child, treachery exists.

As to the charge of multiple attempted murder, the last paragraph of Article 6 of the Revised Penal
Code states that a felony 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. In Esqueda v.
People,23 the Court held:

If one inflicts physical injuries on another but the latter survives, the crime committed is either
consummated physical injuries, if the offender had no intention to kill the victim, or frustrated or
attempted homicide or frustrated murder or attempted murder if the offender intends to kill the victim.
Intent to kill may be proved by evidence of: (a) motive; (b) the nature or number of weapons used in
the commission of the crime; (c) the nature and number of wounds inflicted on the victim; (d) the
manner the crime was committed; and (e) the words uttered by the offender at the time the injuries
are inflicted by him on the victim.

In this case, the prosecution has clearly established the intent to kill on the part of appellant as
shown by the use of firearms, the words uttered24during, as well as the manner of, the commission of
the crime. The Court thus quotes with approval the trial court’s finding that appellant is liable for
attempted murder, viz.:

In the case at bar, the perpetrators who acted in concert commenced the felony of murder first by
suddenly stripping off the wall of their house, followed by successive firing at the intended victims
when Norberto Divina refused to go out of the house as ordered by them. If only there were good in
aiming their target, not only Mary Grace and Claudine had been killed but surely all the rest of the
family would surely have died. Hence, perpetrators were liable for Murder of Mary Grace Divina and
Claudine Divina but for Multiple Attempted Murder for Norberto Divina, Maricel Divina, Elizabeth
Divina and Judy Ann Divina. But as [appellant] Ireneo Jugueta was the only one charged in this
case, he alone is liable for the crime committed.25
Meanwhile, the supposed inconsistencies in Norberto's testimony, i.e., that he failed to state from the
very beginning that all three assailants were carrying firearms, and that it was the shots from
appellant’s firearm that killed the children, are too trivial and inconsequential to put a dent on said
witness's credibility. An examination of Norberto's testimony would show that there are no real
inconsistencies to speak of. As ruled in People v. Cabtalan,26 "[m]inor inconsistencies and
discrepancies pertaining to trivial matters do not affect the credibility of witnesses, as well as their
positive identification of the accused as the perpetrators of the crime."27 Both the trial court and the
CA found Norberto's candid and straightforward testimony to be worthy of belief and this Court sees
no reason why it should not conform to the principle reiterated in Medina, Jr. v. People28 that:

Time and again, this Court has deferred to the trial court's factual findings and evaluation of
the credibility of witnesses, especially when affirmed by the CA, in the absence of any clear
showing that the trial court overlooked or misconstrued cogent facts and circumstances that
would justify altering or revising such findings and evaluation. This is because the trial court's
determination proceeds from its first-hand opportunity to observe the demeanor of the
witnesses, their conduct and attitude under grilling examination, thereby placing the trial
court in unique position to assess the witnesses' credibility and to appreciate their
truthfulness, honesty and candor x x x.29

The records of this case, particularly the testimonies of the witnesses, reveal no outstanding or
exceptional circumstance to justify a deviation from such long-standing principle. There is no cogent
reason to overturn the trial court's ruling that the prosecution evidence, particularly the testimony of
Norberto Divina identifying appellant as one of the assailants, is worthy of belief. Thus, the
prosecution evidence established beyond any reasonable doubt that appellant is one of the
perpetrators of the crime.

However, the Court must make a clarification as to the nomenclature used by the trial court to
identify the crimes for which appellant was penalized. There is some confusion caused by the trial
court's use of the terms "Double Murder" and "Multiple Attempted Murder" in convicting appellant,
and yet imposing penalties which nevertheless show that the trial court meant to penalize appellant
for two (2) separate counts of Murder and four (4) counts of Attempted Murder.

The facts, as alleged in the Information in Criminal Case No. 7698-G, and as proven during trial,
show that appellant is guilty of 2 counts of the crime of Murder and not Double Murder, as the killing
of the victims was not the result of a single act but of several acts of appellant and his cohorts. In the
same vein, appellant is also guilty of 4 counts of the crime of Attempted Murder and not Multiple
Attempted Murder in Criminal Case No. 7702-G. It bears stressing that the Informations in this case
failed to comply with the requirement in Section 13, Rule 110 of the Revised Rules of Court that an
information must charge only one offense.

As a general rule, a complaint or information must charge only one offense, otherwise, the same is
defective. The reason for the rule is stated in People of the Philippines and AAA v. Court of Appeals,
21st Division, Mindanao Station, et al.,30 thus:

The rationale behind this rule prohibiting duplicitous complaints or informations is to give the
accused the necessary knowledge of the charge against him and enable him to sufficiently prepare
for his defense. The State should not heap upon the accused two or more charges which might
confuse him in his defense. Non-compliance with this rule is a ground for quashing the duplicitous
complaint or information under Rule 117 of the Rules on Criminal Procedure and the accused may
raise the same in a motion to quash before he enters his plea, otherwise, the defect is deemed
waived.
However, since appellant entered a plea of not guilty during arraignment and failed to move for the
quashal of the Informations, he is deemed to have waived his right to question the same. Section 9
of Rule 117 provides that "[t]he failure of the accused to assert any ground of a motion to quash
before he pleads to the complaint or information, either because he did not file a motion to quash or
failed to allege the same in said motion, shall be deemed a waiver of any objections except those
based on the grounds provided for in paragraphs (a), (b), (g), and (i) of Section 3 of this Rule."

It is also well-settled that when two or more offenses are charged in a single complaint or information
but the accused fails to object to it before trial, the court may convict him of as many offenses as are
charged and proved, and impose upon him the proper penalty for each offense.31

Appellant can therefore be held liable for all the crimes alleged in the Informations in Criminal Case
Nos. 7698-G and 7702-G, i.e., 2 counts of murder and 4 counts of attempted murder, respectively,
and proven during trial.

Meanwhile, in People v. Nelmida,32 the Court explained the concept of a complex crime as defined in
Article 4833 of the Revised Penal Code, thus:

In a complex crime, two or more crimes are actually committed, however, in the eyes of the law and
in the conscience of the offender they constitute only one crime, thus, only one penalty is imposed.
There are two kinds of complex crime. The first is known as a compound crime, or when a single act
constitutes two or more grave or less grave felonies while the other is known as a complex crime
proper, or when an offense is a necessary means for committing the other. The classic example of
the first kind is when a single bullet results in the death of two or more persons. A different rule
governs where separate and distinct acts result in a number killed. Deeply rooted is the doctrine that
when various victims expire from separate shot, such acts constitute separate and distinct crimes.34

Here, the facts surrounding the shooting incident clearly show that appellant and the two others, in
firing successive and indiscriminate shots at the family of Norberto from their respective firearms,
intended to kill not only Norberto, but his entire family. When several gunmen, as in this case,
indiscriminately fire a series of shots at a group of people, it shows their intention to kill several
individuals. Hence, they are committing not only one crime. What appellant and his cohorts
committed cannot be classified as a complex crime because as held in People v. Nelmida,35 "each
act by each gunman pulling the trigger of their respective firearms, aiming each particular moment at
different persons constitute distinct and individual acts which cannot give rise to a complex crime."36

Furthermore, the Court notes that both the trial court and the CA failed to take into account dwelling
as an ordinary, aggravating circumstance, despite the fact that the Informations in Criminal Case
Nos. 7698-G and 7702-G contain sufficient allegations to that effect, to wit:

Criminal Case No. 7698-G for Double Murder:

That the crime was committed in the dwelling of the offended party who had not given provocation
for the attack and the accused took advantage of nighttime to facilitate the commission of the
offense.37

Criminal Case No. 7702-G for Multiple Attempted Murder:

x x x the above-named accused, conspiring and confederating together and mutually helping one
another, armed with short firearms of undetermined calibres, with intent to kill, qualified by treachery,
with evident premeditation and abuse of superior strength, did then and there wilfully, unlawfully and
feloniously attack, assault, and shoot with the said firearms the house occupied by the family of
Norberto Divina, thereby commencing the commission of the crime of Murder, directly by overt acts,
but did not perform all the acts of execution which would have produced it by reason of some cause
or accident other than the spontaneous desistance of the accused x x x38

In People v. Agcanas,39 the Court stressed that "[i]t has been held in a long line of cases that
dwelling is aggravating because of the sanctity of privacy which the law accords to human abode.
He who goes to another's house to hurt him or do him wrong is more guilty than he who offends him
elsewhere." Dwelling aggravates a felony where the crime is committed in the dwelling of the
offended party provided that the latter has not given provocation therefor.40 The testimony of
Norberto established the fact that the group of appellant violated the victims' home by destroying the
same and attacking his entire family therein, without provocation on the part of the latter. Hence, the
trial court should have appreciated dwelling as an ordinary aggravating circumstance.

In view of the attendant ordinary aggravating circumstance, the Court must modify the penalties
imposed on appellant. Murder is punishable by reclusion perpetua to death, thus, with an ordinary
aggravating circumstance of dwelling, the imposable penalty is death for each of two (2) counts of
murder.41 However, pursuant to Republic Act (RA) No. 9346, proscribing the imposition of the death
penalty, the penalty to be imposed on appellant should be reclusion perpetua for each of the two (2)
counts of murder without eligibility for parole. With regard to the four (4) counts of attempted murder,
the penalty prescribed for each count is prision mayor. With one ordinary aggravating circumstance,
the penalty should be imposed in its maximum period. Applying the Indeterminate Sentence Law,
the maximum penalty should be from ten (10) years and one (1) day to twelve (12) years of prision
mayor, while the minimum shall be taken from the penalty next lower in degree, i.e., prision
correccional, in any of its periods, or anywhere from six (6) months and one (1) day to six (6) years.
This Court finds it apt to impose on appellant the indeterminate penalty of four (4) years, two (2)
months and one (1) day of prision correccional, as minimum, to ten (10) years and one (1) day
of prision mayor, as minimum, for each of the four (4) counts of attempted murder.

Anent the award of damages, the Court deems it proper to address the matter in detail as regards
criminal cases where the imposable penalty is reclusion perpetua to death. Generally, in these types
of criminal cases, there are three kinds of damages awarded by the Court; namely: civil indemnity,
moral, and exemplary damages. Likewise, actual damages may be awarded or temperate damages
in some instances.

First, civil indemnity ex delicto is the indemnity authorized in our criminal law for the offended party,
in the amount authorized by the prevailing judicial policy and apart from other proven actual
damages, which itself is equivalent to actual or compensatory damages in civil law.42 This award
stems from Article 100 of the RPC which states, "Every person criminally liable for a felony is also
civilly liable."

It is to be noted that civil indemnity is, technically, not a penalty or a fine; hence, it can be increased
by the Court when appropriate.43 Article 2206 of the Civil Code provides:

Art. 2206. The amount of damages for death caused by a crime or quasi-delict shall be at least three
thousand pesos, even though there may have been mitigating circumstances. In addition:

(1) The defendant shall be liable for the loss of the earning capacity of the deceased,
and the indemnity shall be paid to the heirs of the latter; such indemnity shall in every
case be assessed and awarded by the court, unless the deceased on account of
permanent physical disability not caused by the defendant, had no earning capacity
at the time of his death;
 (2) If the deceased was obliged to give support according to the provisions of Article
291, the recipient who is not an heir called to the decedent's inheritance by the law of
testate or intestate succession, may demand support from the person causing the
death, for a period not exceeding five years, the exact duration to be fixed by the
court;

(3) The spouse, legitimate and illegitimate descendants and ascendants of the
deceased may demand moral damages for mental anguish by reason of the death of
the deceased.

In our jurisdiction, civil indemnity is awarded to the offended party as a kind of monetary restitution or
compensation to the victim for the damage or infraction that was done to the latter by the accused,
which in a sense only covers the civil aspect. Precisely, it is civil indemnity. Thus, in a crime where a
person dies, in addition to the penalty of imprisonment imposed to the offender, the accused is also
ordered to pay the victim a sum of money as restitution. Also, it is apparent from Article 2206 that the
law only imposes a minimum amount for awards of civil indemnity, which is ₱3,000.00. The law did
not provide for a ceiling. Thus, although the minimum amount for the award cannot be changed,
increasing the amount awarded as civil indemnity can be validly modified and increased when the
present circumstance warrants it.44

The second type of damages the Court awards are moral damages, which are also compensatory in
nature. Del Mundo v. Court of Appeals45 expounded on the nature and purpose of moral
damages, viz.:

Moral damages, upon the other hand, may be awarded to compensate one for manifold injuries such
as physical suffering, mental anguish, serious anxiety, besmirched reputation, wounded feelings and
social humiliation. These damages must be understood to be in the concept of grants, not punitive or
corrective in nature, calculated to compensate the claimant for the injury suffered. Although
incapable of exactness and no proof of pecuniary loss is necessary in order that moral damages
may be awarded, the amount of indemnity being left to the discretion of the court, it is imperative,
nevertheless, that (1) injury must have been suffered by the claimant, and (2) such injury must have
sprung from any of the cases expressed in Article 221946 and Article 222047 of the Civil Code. x x x.

Similarly, in American jurisprudence, moral damages are treated as "compensatory damages

awarded for mental pain and suffering or mental anguish resulting from a wrong."48 They may also be
considered and allowed "for resulting pain and suffering, and for humiliation, indignity, and vexation
suffered by the plaintiff as result of his or her assailant's conduct, as well as the factors of
provocation, the reasonableness of the force used, the attendant humiliating circumstances, the sex
of the victim, [and] mental distress."49

The rationale for awarding moral damages has been explained in Lambert v. Heirs of Rey Castillon:
"[T]he award of moral damages is aimed at a restoration, within the limits possible, of the spiritual
status quo ante; and therefore, it must be proportionate to the suffering inflicted."50

Corollarily, moral damages under Article 222051 of the Civil Code also does not fix the amount of
damages that can be awarded. It is discretionary upon the court, depending on the mental anguish
or the suffering of the private offended party. The amount of moral damages can, in relation to civil
indemnity, be adjusted so long as it does not exceed the award of civil indemnity.52

Finally, the Civil Code of the Philippines provides, in respect to exemplary damages, thus:
ART. 2229. Exemplary or corrective damages are imposed, by way of example or correction for the
public good, in addition to the moral, temperate, liquidated or compensatory damages.

ART. 2230. In criminal offenses, exemplary damages as a part of the civil liability may be imposed
when the crime was committed with one or more aggravating circumstances. Such damages are
separate and distinct from fines and shall be paid to the offended party.

Also known as "punitive" or "vindictive" damages, exemplary or corrective damages are intended to
serve as a deterrent to serious wrong doings, and as a vindication of undue sufferings and wanton
invasion of the rights of an injured or a punishment for those guilty of outrageous conduct. These
terms are generally, but not always, used interchangeably. In common law, there is preference in the
use of exemplary damages when the award is to account for injury to feelings and for the sense of
indignity and humiliation suffered by a person as a result of an injury that has been maliciously and
wantonly inflicted,53 the theory being that there should be compensation for the hurt caused by the
highly reprehensible conduct of the defendant – associated with such circumstances as willfulness,
wantonness, malice, gross negligence or recklessness, oppression, insult or fraud or gross fraud54 –
that intensifies the injury. The terms punitive or vindictive damages are often used to refer to those
species of damages that may be awarded against a person to punish him for his outrageous
conduct. In either case, these damages are intended in good measure to deter the wrongdoer and
others like him from similar conduct in the future.55

The term aggravating circumstances used by the Civil Code, the law not having specified otherwise,
is to be understood in its broad or generic sense. The commission of an offense has a two-pronged
effect, one on the public as it breaches the social order and the other upon the private victim as it
causes personal sufferings, each of which is addressed by, respectively, the prescription of heavier
punishment for the accused and by an award of additional damages to the victim. The increase of
the penalty or a shift to a graver felony underscores the exacerbation of the offense by the
attendance of aggravating circumstances, whether ordinary or qualifying, in its commission. Unlike
the criminal liability which is basically a State concern, the award of damages, however, is likewise, if
not primarily, intended for the offended party who suffers thereby. It would make little sense for an
award of exemplary damages to be due the private offended party when the aggravating
circumstance is ordinary but to be withheld when it is qualifying. Withal, the ordinary or qualifying
nature of an aggravating circumstance is a distinction that should only be of consequence to the
criminal, rather than to the civil, liability of the offender. In fine, relative to the civil aspect of the case,
an aggravating circumstance, whether ordinary or qualifying, should entitle the offended party to an
award of exemplary damages within the unbridled meaning of Article 2230 of the Civil Code. 56

The reason is fairly obvious as to why the Revised Rules of Criminal Procedure57 requires
aggravating circumstances, whether ordinary or qualifying, to be stated in the complaint or
information. It is in order not to trample on the constitutional right of an accused to be informed of the
nature of the alleged offense that he or she has committed. A criminal complaint or information
should basically contain the elements of the crime, as well as its qualifying and ordinary aggravating
circumstances, for the court to effectively determine the proper penalty it should impose. This,
however, is not similar in the recovery of civil liability. In the civil aspect, the presence of an
aggravating circumstance, even if not alleged in the information but proven during trial would entitle
the victim to an award of exemplary damages.

Being corrective in nature, exemplary damages, therefore, can be awarded, not only due to the
presence of an aggravating circumstance, but also where the circumstances of the case show the
highly reprehensible or outrageous conduct of the offender. In much the same way as Article 2230
prescribes an instance when exemplary damages may be awarded, Article 2229, the main provision,
lays down the very basis of the award. Thus, in People v. Matrimonio,58 the Court imposed exemplary
damages to deter other fathers with perverse tendencies or aberrant sexual behavior from sexually
abusing their own daughters. Also, in People v. Cristobal,59 the Court awarded exemplary damages
on account of the moral corruption, perversity and wickedness of the accused in sexually assaulting
a pregnant married woman. In People v. Cañada,60 People v. Neverio61 and People v. Layco, Sr.,62 the
Court awarded exemplary damages to set a public example, to serve as deterrent to elders who
abuse and corrupt the youth, and to protect the latter from sexual abuse.

Existing jurisprudence pegs the award of exemplary damages at ₱30,000.00,63 despite the lack of
any aggravating circumstance. The Court finds it proper to increase the amount to ₱50,000.00 in
order to deter similar conduct.

If, however, the penalty for the crime committed is death, which cannot be imposed because of the
provisions of R.A. No. 9346, prevailing jurisprudence64 sets the amount of ₱100,000.00 as exemplary
damages.

Before awarding any of the above mentioned damages, the Court, however, must first consider the
penalty imposed by law. Under RA 7659 or An Act to Impose the Death Penalty on Certain Heinous
Crimes, Amending for that Purpose the Revised Penal Laws, and for Other Purposes, certain crimes
under the RPC and special penal laws were amended to impose the death penalty under certain
circumstances.65 Under the same law, the following crimes are punishable by reclusion perpetua:
piracy in general,66 mutiny on the high seas,67 and simple rape.68 For the following crimes, RA 7659
has imposed the penalty of reclusion perpetua to death: qualified piracy;69 qualified bribery under
certain circumstances;70 parricide;71 murder;72 infanticide, except when committed by the mother of the
child for the purpose of concealing her dishonor or either of the maternal grandparents for the same
purpose;73 kidnapping and serious illegal detention under certain circumstances;74 robbery with
violence against or intimidation of persons under certain circumstances;75 destructive arson, except
when death results as a consequence of the commission of any of the acts penalized under the
article;76 attempted or frustrated rape, when a homicide is committed by reason or on occasion
thereof; plunder;77 and carnapping, when the driver or occupant of the carnapped motor vehicle is
killed or raped in the course of the commission of the carnapping or on the occasion
thereof.78 Finally, RA 7659 imposes the death penalty on the following crimes:

(a) In qualified bribery, when it is the public officer who asks or demands the gift or present.

(b) In kidnapping and serious illegal detention: (i) when the kidnapping or detention was
committed for the purpose of extorting ransom from the victim or any other person; (ii) when
the victim is killed or dies as a consequence of the detention; (iii) when the victim is raped,
subjected to torture or dehumanizing acts.

(c) In destructive arson, when as a consequence of the commission of any of the acts
penalized under Article 320, death results.

(d) In rape: (i) when by reason or on occasion of the rape, the victim becomes insane or
homicide is committed; (ii) when committed with any of the following attendant
circumstances: (1) when the victim is under eighteen (18) years of age and the offender is a
parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third
civil degree, or the common-law-spouse of the parent of the victim; (2) when the victim is
under the custody of the police or military authorities; (3) when the rape is committed in full
view of the husband, parent, any of the children or other relatives within the third degree of
consanguinity; (4) when the victim is a religious or a child below seven years old; (5) when
the offender knows that he is afflicted with Acquired Immune Deficiency Syndrome (AIDS)
disease; (6) when committed by any member of the Armed Forces of the Philippines or the
 Philippine National Police or any law enforcement agency; and (7) when by reason or on the
occasion of the rape, the victim has suffered permanent physical mutilation.

From these heinous crimes, where the imposable penalties consist of two (2) indivisible penalties or
single indivisible penalty, all of them must be taken in relation to Article 63 of the RPC, which
provides:

Article 63. Rules for the application of indivisible penalties. - In all cases in which the law prescribes
a single indivisible penalty, it shall be applied by the courts regardless of any mitigating or
aggravating circumstances that may have attended the commission of the deed.

In all cases in which the law prescribes a penalty composed of two indivisible penalties, the following
rules shall be observed in the application thereof:

1. when in the commission of the deed there is present only one aggravating circumstance,
the greater penalty shall be applied.

2. when there are neither mitigating nor aggravating circumstances in the commission of the
deed, the lesser penalty shall be applied.

3. when the commission of the act is attended by some mitigating circumstance and there is
no aggravating circumstance, the lesser penalty shall be applied.

4. when both mitigating and aggravating circumstances attended the commission of the act,
the courts shall reasonably allow them to offset one another in consideration of their number
and importance, for the purpose of applying the penalty in accordance with the preceding
rules, according to the result of such compensation. (Revised Penal Code, Art. 63)

Thus, in order to impose the proper penalty, especially in cases of indivisible penalties, the court has
the duty to ascertain the presence of any mitigating or aggravating circumstances. Accordingly, in
crimes where the imposable penalty is reclusion perpetua to death, the court can impose
either reclusion perpetua or death, depending on the mitigating or aggravating circumstances
present.

But with the enactment of RA 9346 or An Act Prohibiting the Imposition of Death Penalty in the
Philippines, the imposition of death penalty is now prohibited. It provides that in lieu of the death
penalty, the penalty of reclusion perpetua shall be imposed when the law violated makes use of the
nomenclature of the penalties of the RPC.79

As a result, the death penalty can no longer be imposed. Instead, they have to impose reclusion
perpetua. Despite this, the principal consideration for the award of damages, following the ruling
in People v. Salome80 and People v. Quiachon,81 is "the penalty provided by law or imposable for the
offense because of its heinousness, not the public penalty actually imposed on the offender."82

When the circumstances surrounding the crime would justify the imposition of the death penalty
were it not for RA 9346, the Court has ruled, as early as July 9, 1998 in People v. Victor,83 that the
award of civil indemnity for the crime of rape when punishable by death should be ₱75,000.00 We
reasoned that "[t]his 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."84 Such reasoning also applies to all heinous crimes
found in RA 7659. The amount was later increased to ₱100,000.00.85
In addition to this, the Court likewise awards moral damages. In People v. Arizapa,86 ₱50,000.00 was
awarded as moral damages without need of pleading or proving them, for in rape cases, it is
recognized that the victim's injury is concomitant with and necessarily results from the odious crime
of rape to warrant per se the award of moral damages.87 Subsequently, the amount was increased to
₱75,000.00 in People v. Soriano88 and P100,000.00 in People v. Gambao.89

Essentially, despite the fact that the death penalty cannot be imposed because of RA 9346, the
imposable penalty as provided by the law for the crime, such as those found in RA 7569, must be
used as the basis for awarding damages and not the actual penalty imposed. 1avv phi1

Again, for crimes where the imposable penalty is death in view of the attendance of an ordinary
aggravating circumstance but due to the prohibition to impose the death penalty, the actual penalty
imposed is reclusion perpetua, the latest jurisprudence90 pegs the amount of ₱100,000.00 as civil
indemnity and ₱100,0000.00 as moral damages. For the qualifying aggravating circumstance and/or
the ordinary aggravating circumstances present, the amount of ₱100,000.00 is awarded as
exemplary damages aside from civil indemnity and moral damages. Regardless of the attendance of
qualifying aggravating circumstance, the exemplary damages shall be fixed at ₱100,000.00. "[T]his
is not only a reaction to the apathetic societal perception of the penal law and the financial
fluctuation over time, but also an expression of the displeasure of the Court over the incidence of
heinous crimes x x x."91

When the circumstances surrounding the crime call for the imposition of reclusion perpetua only,
there being no ordinary aggravating circumstance, the Court rules that the proper amounts should
be ₱75,000.00 as civil indemnity, ₱75,000.00 as moral damages and ₱75,000.00 exemplary
damages, regardless of the number of qualifying aggravating circumstances present.

When it comes to compound and complex crimes, although the single act done by the offender
caused several crimes, the fact that those were the result of a single design, the amount of civil
indemnity and moral damages will depend on the penalty and the number of victims. For each of the
victims, the heirs should be properly compensated. If it is multiple murder without any ordinary
aggravating circumstance but merely a qualifying aggravating circumstance, but the penalty imposed
is death because of Art. 48 of the RPC wherein the maximum penalty shall be imposed,92 then, for
every victim who dies, the heirs shall be indemnified with ₱100,000.00 as civil indemnity,
₱100,000.00 as moral damages and ₱100,000.00 as exemplary damages.

In case of a special complex crime, which is different from a complex crime under Article 48 of the
RPC, the following doctrines are noteworthy:

In People of the Philippines v. Conrado Laog,93 this Court ruled that special complex crime, or more
properly, a composite crime, has its own definition and special penalty in the Revised Penal Code,
as amended. Justice Regalado, in his Separate Opinion in the case of People v. Barros,94 explained
that composite crimes are "neither of the same legal basis as nor subject to the rules on complex
crimes in Article 48 [of the Revised Penal Code], since they do not consist of a single act giving rise
to two or more grave or less grave felonies [compound crimes] nor do they involve an offense being
a necessary means to commit another [complex crime proper]. However, just like the regular
complex crimes and the present case of aggravated illegal possession of firearms, only a single
penalty is imposed for each of such composite crimes although composed of two or more
offenses."95

In People v. De Leon,96 we expounded on the special complex crime of robbery with homicide, as
follows:
In robbery with homicide, the original criminal design of the malefactor is to commit robbery, with
homicide perpetrated on the occasion or by reason of the robbery. The intent to commit robbery
must precede the taking of human life. The homicide may take place before, during or after the
robbery. It is only the result obtained, without reference or distinction as to the circumstances,
causes or modes or persons intervening in the commission of the crime that has to be taken into
consideration. There is no such felony of robbery with homicide through reckless imprudence or
simple negligence. The constitutive elements of the crime, namely, robbery with homicide, must be
consummated.

It is immaterial that the death would supervene by mere accident; or that the victim of homicide is
other than the victim of robbery, or that two or more persons are killed, or that aside from the
homicide, rape, intentional mutilation, or usurpation of authority, is committed by reason or on the
occasion of the crime. Likewise immaterial is the fact that the victim of homicide is one of the
robbers; the felony would still be robbery with homicide. Once a homicide is committed by or on the
occasion of the robbery, the felony committed is robbery with homicide. All the felonies committed by
reason of or on the occasion of the robbery are integrated into one and indivisible felony of robbery
with homicide. The word "homicide" is used in its generic sense. Homicide, thus, includes murder,
parricide, and infanticide.97

In the special complex crime of rape with homicide, the term "homicide" is to be understood in its
generic sense, and includes murder and slight physical injuries committed by reason or on occasion
of the rape.98 Hence, even if any or all of the circumstances (treachery, abuse of superior strength
and evident premeditation) alleged in the information have been duly established by the prosecution,
the same would not qualify the killing to murder and the crime committed by appellant is still rape
with homicide. As in the case of robbery with homicide, the aggravating circumstance of treachery is
to be considered as a generic aggravating circumstance only. Thus we ruled in People v.
Macabales:99

Finally, appellants contend that the trial court erred in concluding that the aggravating circumstance
of treachery is present. They aver that treachery applies to crimes against persons and not to crimes
against property. However, we find that the trial court in this case correctly characterized treachery
as a generic aggravating, rather than qualifying, circumstance. Miguel was rendered helpless by
appellants in defending himself when his arms were held by two of the attackers before he was
stabbed with a knife by appellant Macabales, as their other companions surrounded them. In People
v. Salvatierra, we ruled that when alevosia (treachery) obtains in the special complex crime of
robbery with homicide, such treachery is to be regarded as a generic aggravating circumstance.

Robbery with homicide is a composite crime with its own definition and special penalty in the
Revised Penal Code. There is no special complex crime of robbery with murder under the Revised
Penal Code. Here, treachery forms part of the circumstances proven concerning the actual
commission of the complex crime. Logically it could not qualify the homicide to murder but, as
generic aggravating circumstance, it helps determine the penalty to be imposed.100

Applying the above discussion on special complex crimes, if the penalty is death but it cannot be
imposed due to RA 9346 and what is actually imposed is the penalty of reclusion perpetua, the civil
indemnity and moral damages will be ₱100,000.00 each, and another ₱100,000.00 as exemplary
damages in view of the heinousness of the crime and to set an example. If there is another
composite crime included in a special complex crime and the penalty imposed is death, an additional
₱100,000.00 as civil indemnity, ₱100,000.00 moral damages and ₱100,000.00 exemplary damages
shall be awarded for each composite crime committed.
For example, in case of Robbery with Homicide101 wherein three (3) people died as a consequence of
the crime, the heirs of the victims shall be entitled to the award of damages as discussed earlier.
This is true, however, only if those who were killed were the victims of the robbery or mere
bystanders and not when those who died were the perpetrators or robbers themselves because the
crime of robbery with homicide may still be committed even if one of the robbers dies.102 This is also
applicable in robbery with rape where there is more than one victim of rape.

In awarding civil indemnity and moral damages, it is also important to determine the stage in which
the crime was committed and proven during the trial. Article 6 of the RPC 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 an 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.

As discussed earlier, when the crime proven is consummated and the penalty imposed is death but
reduced to reclusion perpetua because of R.A. 9346, the civil indemnity and moral damages that
should be awarded will each be ₱100,000.00 and another ₱100,000.00 for exemplary damages or
when the circumstances of the crime call for the imposition of reclusion perpetua only, the civil
indemnity and moral damages should be ₱75,000.00 each, as well as exemplary damages in the
amount of ₱75,000.00. If, however, the crime proven is in its frustrated stage, the civil indemnity and
moral damages that should be awarded will each be ₱50,000.00, and an award of ₱25,000.00 civil
indemnity and ₱25,000.00 moral damages when the crime proven is in its attempted stage. The
difference in the amounts awarded for the stages is mainly due to the disparity in the outcome of the
crime committed, in the same way that the imposable penalty varies for each stage of the crime. The
said amounts of civil indemnity and moral damages awarded in cases of felonies in their frustrated or
attempted stages shall be the bases when the crimes committed constitute complex crime under
Article 48 of the RPC. For example, in a crime of murder with attempted murder, the amount of civil
indemnity, moral damages and exemplary damages is ₱100,000.00 each, while in the attempted
murder, the civil indemnity, moral damages and exemplary damages is ₱25,000.00 each.

In a special complex crime, like robbery with homicide, if, aside from homicide, several victims
(except the robbers) sustained injuries, they shall likewise be indemnified. It must be remembered
that in a special complex crime, unlike in a complex crime, the component crimes have no attempted
or frustrated stages because the intention of the offender/s is to commit the principal crime which is
to rob but in the process of committing the said crime, another crime is committed. For example, if
on the occasion of a robbery with homicide, other victims sustained injuries, regardless of the
severity, the crime committed is still robbery with homicide as the injuries become part of the crime,
"Homicide", in the special complex crime of robbery with homicide, is understood in its generic sense
and now forms part of the essential element of robbery,103 which is the use of violence or the use of
force upon anything. Hence, the nature and severity of the injuries sustained by the victims must still
be determined for the purpose of awarding civil indemnity and damages. If a victim suffered mortal
wounds and could have died if not for a timely medical intervention, the victim should be awarded
civil indemnity, moral damages, and exemplary damages equivalent to the damages awarded in a
frustrated stage, and if a victim suffered injuries that are not fatal, an award of civil indemnity, moral
damages and exemplary damages should likewise be awarded equivalent to the damages awarded
in an attempted stage.

In other crimes that resulted in the death of a victim and the penalty consists of divisible penalties,
like homicide, death under tumultuous affray, reckless imprudence resulting to homicide, the civil
indemnity awarded to the heirs of the victim shall be ₱50,000.00 and ₱50,000.00 moral damages
without exemplary damages being awarded. However, an award of ₱50,000.00 exemplary damages
in a crime of homicide shall be added if there is an aggravating circumstance present that has been
proven but not alleged in the information.

Aside from those discussed earlier, the Court also awards temperate damages in certain cases. The
award of ₱25,000.00 as temperate damages in homicide or murder cases is proper when no
evidence of burial and funeral expenses is presented in the trial court.104 Under Article 2224 of the
Civil Code, temperate damages may be recovered, as it cannot be denied that the heirs of the
victims suffered pecuniary loss although the exact amount was not proved.105 In this case, the Court
now increases the amount to be awarded as temperate damages to ₱50,000.00.

In the case at bar, the crimes were aggravated by dwelling, and the murders committed were further
made atrocious by the fact that the victims are innocent, defenseless minors – one is a mere 3½-
year-old toddler, and the other a 13-year-old girl. The increase in the amount of awards for damages
is befitting to show not only the Court's, but all of society's outrage over such crimes and wastage of
lives.

In summary:

I. For those crimes106 like, Murder,107 Parricide,108 Serious Intentional

Mutilation,109 Infanticide,110 and other crimes involving death of a victim where the penalty
consists of indivisible penalties:

1.1 Where the penalty imposed is death but reduced to reclusion perpetua because
of RA 9346:

a. Civil indemnity – ₱100,000.00

b. Moral damages – ₱100,000.00

c. Exemplary damages – ₱100,000.00

1.2 Where the crime committed was not consummated:

a. Frustrated:

i. Civil indemnity – ₱75,000.00

ii. Moral damages – ₱75,000.00

iii. Exemplary damages – ₱75,000.00

b. Attempted:

i. Civil indemnity – ₱50,000.00

 ii. Exemplary damages – ₱50,000.00

iii. Exemplary damages – ₱50,000.00

2.1 Where the penalty imposed is reclusion perpetua, other than the above-
mentioned:

a. Civil indemnity – ₱75,000.00

b. Moral damages – ₱75,000.00

c. Exemplary damages – ₱75,000.00

2.2 Where the crime committed was not consummated:

a. Frustrated:

i. Civil indemnity – ₱50,000.00

ii. Moral damages – ₱50,000.00

iii. Exemplary damages – ₱50,000.00

b. Attempted:

i. Civil indemnity – ₱25,000.00

ii. Moral damages – ₱25,000.00

iii. Exemplary damages – ₱25,000.00

II. For Simple Rape/Qualified Rape:

1.1 Where the penalty imposed is Death but reduced to reclusion perpetua because
of RA 9346:

a. Civil indemnity – ₱100,000.00

b. Moral damages – ₱100,000.00

c. Exemplary damages111 – ₱100,000.00

1.2 Where the crime committed was not consummated but merely attempted:112

a. Civil indemnity – ₱50,000.00

b. Moral damages – ₱50,000.00

c. Exemplary damages – ₱50,000.00

 2.1 Where the penalty imposed is reclusion perpetua, other than the above-
mentioned:

a. Civil indemnity – ₱75,000.00

b. Moral damages – ₱75,000.00

c. Exemplary damages – ₱75,000.00

2.2 Where the crime committed was not consummated, but merely attempted:

a. Civil indemnity – ₱25,000.00

b. Moral damages – ₱25,000.00

c. Exemplary damages – ₱25,000.00

III. For Complex crimes under Article 48 of the Revised Penal Code where death, injuries, or
sexual abuse results, the civil indemnity, moral damages and exemplary damages will
depend on the penalty, extent of violence and sexual abuse; and the number of victims
where the penalty consists of indivisible penalties:

1.1 Where the penalty imposed is Death but reduced to reclusion perpetua because
of RA 9346:

a. Civil indemnity – ₱100,000.00

b. Moral damages – ₱100,000.00

c. Exemplary damages – ₱100,000.00

1.2 Where the penalty imposed is reclusion perpetua, other than the above-
mentioned:

a. Civil indemnity – ₱75,000.00

b. Moral damages – ₱75,000.00

c. Exemplary damages – ₱75,000.00

The above Rules apply to every victim who dies as a result of the crime committed.
In other complex crimes where death does not result, like in Forcible Abduction with
Rape, the civil indemnity, moral and exemplary damages depend on the prescribed
penalty and the penalty imposed, as the case may be.

IV. For Special Complex Crimes like Robbery with Homicide,113 Robbery with
Rape,114 Robbery with Intentional Mutilation,115 Robbery with

Arson,116 Rape with Homicide,117 Kidnapping with Murder,118 Carnapping with Homicide119 or
Carnapping with Rape,120 Highway Robbery with Homicide,121 Qualified Piracy,122 Arson with
Homicide,123 Hazing with Death, Rape, Sodomy or Mutilation124 and other crimes with death,
injuries, and sexual abuse as the composite crimes, where the penalty consists of indivisible
penalties:

1.1 Where the penalty imposed is Death but reduced to reclusion perpetua because
of RA 9346:

a. Civil indemnity – ₱100,000.00

b. Moral damages – ₱100,000.00

c. Exemplary damages – ₱100,000.00

In Robbery with Intentional Mutilation, the amount of damages is the same as the
above if the penalty imposed is Death but reduced to reclusion perpetua although
death did not occur.

1.2 For the victims who suffered mortal/fatal wounds125 and could have died if not for
a timely medical intervention, the following shall be awarded:

a. Civil indemnity – ₱75,000.00

b. Moral damages – ₱75,000.00

c. Exemplary damages – ₱75,000.00

1.3 For the victims who suffered non-mortal/non-fatal injuries:

a. Civil indemnity – ₱50,000.00

b. Moral damages – ₱50,000.00

c. Exemplary damages – ₱50,000.00

2.1 Where the penalty imposed is reclusion perpetua, other than the above-
mentioned:

a. Civil indemnity – ₱75,000.00

b. Moral damages – ₱75,000.00

c. Exemplary damages – ₱75,000.00

In Robbery with Intentional Mutilation, the amount of damages is the same as the
above if the penalty imposed is reclusion perpetua.

2.2 For the victims who suffered mortal/fatal wounds and could have died if not for a
timely medical intervention, the following shall be awarded:

a. Civil indemnity – ₱50,000.00

 b. Moral damages – ₱50,000.00

c. Exemplary damages – ₱50,000.00

2.3 For the victims who suffered non-mortal/non-fatal injuries:

a. Civil indemnity – ₱25,000.00

b. Moral damages – ₱25,000.00

c. Exemplary damages – ₱25,000.00

In Robbery with Physical Injuries,126 the amount of damages shall likewise be

dependent on the nature/severity of the wounds sustained, whether fatal or non-fatal.

The above Rules do not apply if in the crime of Robbery with Homicide, the robber/s
or perpetrator/s are themselves killed or injured in the incident.1âw phi 1

Where the component crime is rape, the above Rules shall likewise apply, and that
for every additional rape committed, whether against the same victim or other
victims, the victims shall be entitled to the same damages unless the other crimes of
rape are treated as separate crimes, in which case, the damages awarded to simple
rape/qualified rape shall apply.

V. In other crimes that result in the death of a victim and the penalty consists of divisible
penalties, i.e., Homicide, Death under Tumultuous Affray, Infanticide to conceal the
dishonour of the offender,127 Reckless Imprudence Resulting to Homicide, Duel, Intentional
Abortion and Unintentional Abortion, etc.:

1.1 Where the crime was consummated:

a. Civil indemnity – ₱50,000.00

b. Moral damages – ₱50,000.00

1.2 Where the crime committed was not consummated, except those crimes where
there are no stages, i.e., Reckless Imprudence and Death under tumultuous affray:

a. Frustrated:

i. Civil indemnity – ₱30,000.00

ii. Moral damages – ₱30,000.00

b. Attempted:

i. Civil indemnity – ₱20,000.00

ii. Moral damages – ₱20,000.00

 If an aggravating circumstance was proven during the trial, even if not
alleged in the Information,128 in addition to the above mentioned amounts as
civil indemnity and moral damages, the amount of ₱50,000.00 exemplary
damages for consummated; ₱30,000.00 for frustrated; and ₱20,000.00 for
attempted, shall be awarded.

VI. A. In the crime of Rebellion where the imposable penalty is reclusion perpetua and death
occurs in the course of the rebellion, the heirs of those who died are entitled to the
following:129

a. Civil indemnity – ₱100,000.00

b. Moral damages – ₱100,000.00

c. Exemplary damages – ₱100,000.00130

B. For the victims who suffered mortal/fatal wounds in the course of the rebellion and
could have died if not for a timely medical intervention, the following shall be
awarded:

a. Civil indemnity – ₱75,000.00

b. Moral damages – ₱75,000.00

c. Exemplary damages – ₱75,000.00

C. For the victims who suffered non-mortal/non-fatal injuries:

a. Civil indemnity – ₱50,000.00

b. Moral damages – ₱50,000.00

c. Exemplary damages – ₱50,000.00

VII. In all of the above instances, when no documentary evidence of burial or funeral
expenses is presented in court, the amount of ₱50,000.00 as temperate damages shall be
awarded.

To reiterate, Article 2206 of the Civil Code provides that the minimum amount for awards of civil
indemnity is P3,000.00, but does not provide for a ceiling. Thus, although the minimum amount
cannot be changed, increasing the amount awarded as civil indemnity can be validly modified and
increased when the present circumstance warrants it.131

Prescinding from the foregoing, for the two (2) counts of murder, attended by the ordinary
aggravating circumstance of dwelling, appellant should be ordered to pay the heirs of the victims the
following damages: (1) ₱100,000.00 as civil indemnity for each of the two children who died; (2)
₱100,000.00 as moral damages for each of the two victims; (3) another ₱100,000.00 as exemplary
damages for each of the two victims; and (4) temperate damages in the amount of ₱50,000.00 for
each of the two deceased. For the four (4) counts of Attempted Murder, appellant should pay
₱50,000.00 as civil indemnity, ₱50,000.00 as moral damages and ₱50,000.00 as exemplary
damages for each of the four victims. In addition, the civil indemnity, moral damages, exemplary
damages and temperate damages payable by the appellant are subject to interest at the rate of six
percent (6%) per annum from the finality of this decision until fully paid.132

Lastly, this Court echoes the concern of the trial court regarding the dismissal of the charges against
Gilberto Estores and Roger San Miguel who had been identified by Norberto Divina as the
companions of appellant on the night the shooting occurred. Norberto had been very straightforward
and unwavering in his identification of Estores and San Miguel as the two other people who fired the
gunshots at his family. More significantly, as noted by the prosecutor, the testimonies of Estores and
San Miguel, who insisted they were not at the crime scene, tended to conflict with the sworn
statement of Danilo Fajarillo, which was the basis for the Provincial Prosecutor's ruling that he finds
no probable cause against the two. Danilo Fajarillo's sworn statement said that on June 6, 2002, he
saw appellant with a certain "Hapon" and Gilbert Estores at the crime scene, but it was only
appellant who was carrying a firearm and the two other people with him had no participation in the
shooting incident. Said circumstances bolster the credibility of Norberto Divina's testimony that
Estores and San Miguel may have been involved in the killing of his two young daughters.

After all, such reinvestigation would not subject Estores and San Miguel to double jeopardy because
the same only attaches if the following requisites are present: (1) a first jeopardy has attached before
the second; (2) the first jeopardy has been validly terminated; and (3) a second jeopardy is for the
same offense as in the first. In turn, a first jeopardy attaches only (a) after a valid indictment; (b)
before a competent court; (c) after arraignment; (d) when a valid plea has been entered; and (e)
when the accused has been acquitted or convicted, or the case dismissed or otherwise terminated
without his express consent.133 In this case, the case against Estores and San Miguel was dismissed
before they were arraigned. Thus, there can be no double jeopardy to speak of. Let true justice be
served by reinvestigating the real participation, if any, of Estores and San Miguel in the killing of
Mary Grace and Claudine Divina.

WHEREFORE, the instant appeal is DISMISSED. The Decision of the Court of Appeals dated
January 30, 2012 in CA-G.R. CR HC No. 03252 is AFFIRMED with the following MODIFICATIONS:

(1) In Criminal Case No. 7698-G, the Court finds accused-appellant Ireneo
Jugueta GUILTY beyond reasonable doubt of two (2) counts of the crime of murder defined
under Article 248 of the Revised Penal Code, attended by the aggravating circumstance of
dwelling, and hereby sentences him to suffer two (2) terms of reclusion perpetua without
eligibility for parole under R.A. 9346. He is ORDERED to PAY the heirs of Mary Grace
Divina and Claudine Divina the following amounts for each of the two victims: (a)
₱100,000.00 as civil indemnity; (b) ₱100,000.00 as moral damages; (c) ₱100,000.00 as
exemplary damages; and (d) ₱50,000.00 as temperate damages.

(2) In Criminal Case No. 7702-G, the Court finds accused-appellant Ireneo
Jugueta GUILTY beyond reasonable doubt of four (4) counts of the crime of attempted
murder defined and penalized under Article 248 in relation to Article 51 of the Revised Penal
Code, attended by the aggravating circumstance of dwelling, and sentences him to suffer the
indeterminate penalty of four (4) years, two (2) months and one (1) day of prision
correccional, as minimum, to ten (10) years and one (1) day of prision mayor, as maximum,
for each of the four (4) counts of attempted murder. He is ORDERED to PAY moral
damages in the amount of P50,000.00, civil indemnity of P50,000.00 and exemplary
damages of PS0,000.00 to each of the four victims, namely, Norberto Divina, Maricel Divina,
Elizabeth Divina and Judy Ann Divina.

(3) Accused-appellant Ireneo Jugueta is also ORDERED to PAY interest at the rate of six
percent (6%) per annum from the time of finality of this decision until fully paid, to be
 imposed on the civil indemnity, moral damages, exemplary damages and temperate
damages.

(4) Let the Office of the Prosecutor General, through the Department of Justice,
be FURNISHED a copy of this Decision. The Prosecutor General is DIRECTED to
immediately conduct a REINVESTIGATION on the possible criminal liability of Gilbert
Estores and Roger San Miguel regarding this case. Likewise, let a copy of this Decision be
furnished the Secretary of Justice for his information and guidance.

SO ORDERED.
 PROBATION LAW

PRESIDENTIAL DECREE No. 968 July 24, 1976

ESTABLISHING A PROBATION SYSTEM, APPROPRIATING FUNDS THEREFOR AND FOR

OTHER PURPOSES

WHEREAS, one of the major goals of the government is to establish a more enlightened and
humane correctional systems that will promote the reformation of offenders and thereby reduce the
incidence of recidivism;

WHEREAS, the confinement of all offenders prisons and other institutions with rehabilitation
programs constitutes an onerous drain on the financial resources of the country; and

WHEREAS, there is a need to provide a less costly alternative to the imprisonment of offenders who
are likely to respond to individualized, community-based treatment programs;

NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the

powers vested in me by the Constitution, do hereby order and decree the following:

Section 1. Title and Scope of the Decree. This Decree shall be known as the Probation Law of
1976. It shall apply to all offenders except those entitled to the benefits under the provisions of
Presidential Decree numbered Six Hundred and three and similar laws.

Section 2. Purpose. This Decree shall be interpreted so as to:

(a) promote the correction and rehabilitation of an offender by providing him with
individualized treatment;

(b) provide an opportunity for the reformation of a penitent offender which might be less
probable if he were to serve a prison sentence; and

(c) prevent the commission of offenses.

Section 3. Meaning of Terms. As used in this Decree, the following shall, unless the context
otherwise requires, be construed thus:

(a) "Probation" is a disposition under which a defendant, after conviction and sentence, is
released subject to conditions imposed by the court and to the supervision of a probation
officer.

(b) "Probationer" means a person placed on probation.

(c) "Probation Officer" means one who investigates for the court a referral for probation or
supervises a probationer or both.

Section 4. Grant of Probation. Subject to the provisions of this Decree, the court may, after it shall
have convicted and sentenced a defendant and upon application at any time of said defendant,
suspend the execution of said sentence and place the defendant on probation for such period and
upon such terms and conditions as it may deem best.

Probation may be granted whether the sentence imposes a term of imprisonment or a fine only. An
application for probation shall be filed with the trial court, with notice to the appellate court if an
appeal has been taken from the sentence of conviction. The filing of the application shall be deemed
a waver of the right to appeal, or the automatic withdrawal of a pending appeal.

An order granting or denying probation shall not be appealable.

Section 5. Post-sentence Investigation. No person shall be placed on probation except upon prior
investigation by the probation officer and a determination by the court that the ends of justice and the
best interest of the public as well as that of the defendant will be served thereby.

Section 6. Form of Investigation Report. The investigation report to be submitted by the probation
officer under Section 5 hereof shall be in the form prescribed by the Probation Administrator and
approved by the Secretary of Justice.

Section 7. Period for Submission of Investigation Report. The probation officer shall submit to the
court the investigation report on a defendant not later than sixty days from receipt of the order of said
court to conduct the investigation. The court shall resolve the petition for probation not later than five
days after receipt of said report.

Pending submission of the investigation report and the resolution of the petition, the defendant may
be allowed on temporary liberty under his bail filed in the criminal case; Provided, That, in case
where no bail was filed or that the defendant is incapable of filing one, the court may allow the
release of the defendant on recognize the custody of a responsible member of the community who
shall guarantee his appearance whenever required by the court.

Section 8. Criteria for Placing an Offender on Probation. In determining whether an offender may be
placed on probation, the court shall consider all information relative, to the character, antecedents,
environment, mental and physical condition of the offender, and available institutional and
community resources. Probation shall be denied if the court finds that:

(a) the offender is in need of correctional treatment that can be provided most effectively by
his commitment to an institution; or

(b) there is undue risk that during the period of probation the offender will commit another
crime; or

(c) probation will depreciate the seriousness of the offense committed.

Section 9. Disqualified Offenders. The benefits of this Decree shall not be extended to those:

(a) sentenced to serve a maximum term of imprisonment of more than six years;

(b) convicted of any offense against the security of the State;

(c) who have previously been convicted by final judgment of an offense punished by
imprisonment of not less than one month and one day and/or a fine of not less than Two
Hundred Pesos;
 (d) who have been once on probation under the provisions of this Decree; and

(e) who are already serving sentence at the time the substantive provisions of this Decree
became applicable pursuant to Section 33 hereof.

Section 10. Conditions of Probation. Every probation order issued by the court shall contain
conditions requiring that the probationer shall:

(a) present himself to the probation officer designated to undertake his supervision at such
place as may be specified in the order within seventy-two hours from receipt of said order;

(b) report to the probation officer at least once a month at such time and place as specified
by said officer.

The court may also require the probationer to:

(a) cooperate with a program of supervision;

(b) meet his family responsibilities;

(c) devote himself to a specific employment and not to change said employment without the
prior written approval of the probation officer;

(d) undergo medical, psychological or psychiatric examination and treatment and enter and
remain in a specified institution, when required for that purpose;

(e) pursue a prescribed secular study or vocational training;

(f) attend or reside in a facility established for instruction, recreation or residence of persons
on probation;

(g) refrain from visiting houses of ill-repute;

(h) abstain from drinking intoxicating beverages to excess;

(i) permit to probation officer or an authorized social worker to visit his home and place or
work;

(j) reside at premises approved by it and not to change his residence without its prior written
approval; or

(k) satisfy any other condition related to the rehabilitation of the defendant and not unduly
restrictive of his liberty or incompatible with his freedom of conscience.

Section 11. Effectivity of Probation Order. A probation order shall take effect upon its issuance, at
which time the court shall inform the offender of the consequences thereof and explain that upon his
failure to comply with any of the conditions prescribed in the said order or his commission of another
offense, he shall serve the penalty imposed for the offense under which he was placed on probation.
Section 12. Modification of Condition of Probation. During the period of probation, the court may,
upon application of either the probationer or the probation officer, revise or modify the conditions or
period of probation. The court shall notify either the probationer or the probation officer of the filing
such an application so as to give both parties an opportunity to be heard thereon.

The court shall inform in writing the probation officer and the probationer of any change in the period
or conditions of probation.

Section 13. Control and Supervision of Probationer. The probationer and his probation program
shall be under the control of the court who placed him on probation subject to actual supervision and
visitation by a probation officer.

Whenever a probationer is permitted to reside in a place under the jurisdiction of another court,
control over him shall be transferred to the Executive Judge of the Court of First Instance of that
place, and in such a case, a copy of the probation order, the investigation report and other pertinent
records shall be furnished said Executive Judge. Thereafter, the Executive Judge to whom
jurisdiction over the probationer is transferred shall have the power with respect to him that was
previously possessed by the court which granted the probation.

Section 14. Period of Probation.

(a) The period of probation of a defendant sentenced to a term of imprisonment of not more
than one year shall not exceed two years, and in all other cases, said period shall not exceed
six years.

(b) When the sentence imposes a fine only and the offender is made to serve subsidiary
imprisonment in case of insolvency, the period of probation shall not be less than nor to be
more than twice the total number of days of subsidiary imprisonment as computed at the rate
established, in Article thirty-nine of the Revised Penal Code, as amended.

Section 15. Arrest of Probationer; Subsequent Disposition. At any time during probation, the court
may issue a warrant for the arrest of a probationer for violation of any of the conditions of probation.
The probationer, once arrested and detained, shall immediately be brought before the court for a
hearing, which may be informal and summary, of the violation charged. The defendant may be
admitted to bail pending such hearing. In such a case, the provisions regarding release on bail of
persons charged with a crime shall be applicable to probationers arrested under this provision. If the
violation is established, the court may revoke or continue his probation and modify the conditions
thereof. If revoked, the court shall order the probationer to serve the sentence originally imposed. An
order revoking the grant of probation or modifying the terms and conditions thereof shall not be
appealable.

Section 16. Termination of Probation. After the period of probation and upon consideration of the
report and recommendation of the probation officer, the court may order the final discharge of the
probationer upon finding that he has fulfilled the terms and conditions of his probation and thereupon
the case is deemed terminated.

The final discharge of the probationer shall operate to restore to him all civil rights lost or suspend as
a result of his conviction and to fully discharge his liability for any fine imposed as to the offense for
which probation was granted.

The probationer and the probation officer shall each be furnished with a copy of such order.
Section 17. Confidentiality of Records. The investigation report and the supervision history of a
probationer obtained under this Decree shall be privileged and shall not be disclosed directly or
indirectly to anyone other than the Probation Administration or the court concerned, except that the
court, in its discretion, may permit the probationer of his attorney to inspect the aforementioned
documents or parts thereof whenever the best interest of the probationer make such disclosure
desirable or helpful: Provided, Further, That, any government office or agency engaged in the
correction or rehabilitation of offenders may, if necessary, obtain copies of said documents for its
official use from the proper court or the Administration.

Section 18. The Probation Administration. There is hereby created under the Department of Justice
an agency to be known as the Probation Administration herein referred to as the Administration,
which shall exercise general supervision over all probationers.

The Administration shall have such staff, operating units and personnel as may be necessary for the
proper execution of its functions.

Section 19. Probation Administration. The Administration shall be headed by the Probation
Administrator, hereinafter referred to as the Administrator, who shall be appointed by the President
of the Philippines. He shall hold office during good behavior and shall not be removed except for
cause.

The Administrator shall receive an annual salary of at least forty thousand pesos. His powers and
duties shall be to:

(a) act as the executive officer of the Administration;

(b) exercise supervision and control over all probation officers;

(c) make annual reports to the Secretary of Justice, in such form as the latter may prescribe,
concerning the operation, administration and improvement of the probation system;

(d) promulgate, subject to the approval of the Secretary of Justice, the necessary rules
relative to the methods and procedures of the probation process;

(e) recommend to the Secretary of Justice the appointment of the subordinate personnel of
his Administration and other offices established in this Decree; and

(f) generally, perform such duties and exercise such powers as may be necessary or
incidental to achieve the objectives of this Decree.

Section 20. Assistant Probation Administrator. There shall be an Assistant Probation Administrator
who shall assist the Administrator perform such duties as may be assigned to him by the latter and
as may be provided by law. In the absence of the Administrator, he shall act as head of the
Administration.

He shall be appointed by the President of the Philippines and shall receive an annual salary of at
least thirty-six thousand pesos.

Section 21. Qualifications of the Administrator and Assistant Probation Administrator. To be eligible
for Appointment as Administrator or Assistant Probation Administrator, a person must be at least
thirty-five years of age, holder of a master's degree or its equivalent in either criminology, social
work, corrections, penology, psychology, sociology, public administration, law, police science, police
administration, or related fields, and should have at least five years of supervisory experience, or be
a member of the Philippine Bar with at least seven years of supervisory experience.

Section 22. Regional Office; Regional Probation Officer. The Administration shall have regional
offices organized in accordance with the field service area patterns established under the Integrated
Reorganization Plan.

Such regional offices shall be headed by a Regional Probation Officer who shall be appointed by
President of the Philippines in accordance with the Integrated Reorganization Plan and upon the
recommendation of the Secretary of Justice.

The Regional Probation Officer shall exercise supervision and control over all probation officer within
his jurisdiction and such duties as may assigned to him by the Administrator. He shall have an
annual salary of at least twenty-four thousand pesos.

He shall, whenever necessary, be assisted by an Assistant Regional Probation Officer who shall
also be appointed by the President of the Philippines, upon recommendation of the Secretary of
Justice, with an annual salary of at least twenty thousand pesos.

Section 23. Provincial and City Probation Officers. There shall be at least one probation officer in
each province and city who shall be appointed by the Secretary of Justice upon recommendation of
the Administrator and in accordance with civil service law and rules.

The Provincial or City Probation Officer shall receive an annual salary of at least eighteen thousand
four hundred pesos.

His duties shall be to:

(a) investigate all persons referred to him for investigation by the proper court or the
Administrator;

(b) instruct all probationers under his supervision of that of the probation aide on the terms
and conditions of their probations;

(c) keep himself informed of the conduct and condition of probationers under his charge and
use all suitable methods to bring about an improvement in their conduct and conditions;

(d) maintain a detailed record of his work and submit such written reports as may be required
by the Administration or the court having jurisdiction over the probationer under his
supervision;

(e) prepare a list of qualified residents of the province or city where he is assigned who are
willing to act as probation aides;

(f) supervise the training of probation aides and oversee the latter's supervision of
probationers;

(g) exercise supervision and control over all field assistants, probation aides and other
personnel; and
 (h) perform such duties as may be assigned by the court or the Administration.

Section 24. Miscellaneous Powers of Provincial and City Probation Officers. Provincial or City
Probation Officers shall have the authority within their territorial jurisdiction to administer oaths and
acknowledgments and to take depositions in connection with their duties and functions under this
Decree. They shall also have, with respect to probationers under their care, the powers of police
officer.

Section 25. Qualifications of Regional, Assistant Regional, Provincial, and City Probation Officers.
No person shall be appointed Regional or Assistant Regional or Provincial or City Probation Officer
unless he possesses at least a bachelor's degree with a major in social work, sociology, psychology,
criminology, penology, corrections, police science, administration, or related fields and has at least
three years of experience in work requiring any of the abovementioned disciplines, or is a member of
the Philippine Bar with at least three years of supervisory experience.

Whenever practicable, the Provincial or City Probation Officer shall be appointed from among
qualified residents of the province or city where he will be assigned to work.

Section 26. Organization. Within twelve months from the approval of this Decree, the Secretary of
Justice shall organize the administrative structure of the Administration and the other agencies
created herein. During said period, he shall also determine the staffing patterns of the regional,
provincial and city probation offices with the end in view of achieving maximum efficiency and
economy in the operations of the probation system.

Section 27. Field Assistants, Subordinate Personnel, Provincial or City Probation Officers shall be
assisted by such field assistants and subordinate personnel as may be necessary to enable them to
carry out their duties effectively.

Section 28. Probation Aides. To assist the Provincial or City Probation Officers in the supervision of
probationers, the Probation Administrator may appoint citizens of good repute and probity to act as
probation aides.

Probation Aides shall not receive any regular compensation for services except for reasonable travel
allowance. They shall hold office for such period as may be determined by the Probation
Administrator. Their qualifications and maximum case loads shall be provided in the rules
promulgated pursuant to this Decree.

Section 29. Violation of Confidential Nature of Probation Records. The penalty of imprisonment
ranging from six months and one day to six years and a fine ranging from hundred to six thousand
pesos shall be imposed upon any person who violates Section 17 hereof.

Section 30. Appropriations. There is hereby authorized the appropriation of the sum of Six Million
Five Hundred Thousand Pesos or so much as may be necessary, out of any funds in the National
Treasury not otherwise appropriated, to carry out the purposes of this Decree. Thereafter, the
amount of at least Ten Million Five Hundred Thousand Pesos or so much as may be necessary shall
be included in the annual appropriations of the national government.

Section 31. Repealing Clause. All provisions of existing laws, orders and regulations contrary to or
inconsistent with this Decree are hereby repealed or modified accordingly.
Section 32. Separability of Provisions. If any part, section or provision of this Decree shall be held
invalid or unconstitutional, no other parts, sections or provisions hereof shall be affected thereby.

Section 33. Effectivity. This Decree shall take effect upon its approval: Provided, However, That, the
application of its substantive provisions concerning the grant of probation shall only take effect
twelve months after the certification by the Secretary of Justice to the Chief Justice of the Supreme
Court that the administrative structure of the Probation Administration and of the other agencies has
been organized.

DONE in the City of Manila, this 24th day of July in the year of Our Lord, nineteen hundred and
seventy-six.

REPUBLIC ACT No. 10707

AN ACT AMENDING PRESIDENTIAL DECREE NO. 968, OTHERWISE KNOWN AS THE

“PROBATION LAW OF 1976”, AS AMENDED

Be it enacted by the Senate and House of Representatives of the Philippines in Congress

assembled:

SECTION 1. Section 4 of Presidential Decree No. 968, as amended, is hereby further amended to
read as follows:

“SEC. 4. Grant of Probation. — Subject to the provisions of this Decree, the trial court may, after it
shall have convicted and sentenced a defendant for a probationable penalty and upon application by
said defendant within the period for perfecting an appeal, suspend the execution of the sentence and
place the defendant on probation for such period and upon such terms and conditions as it may
deem best. No application for probation shall be entertained or granted if the defendant has
perfected the appeal from the judgment of conviction: Provided, That when a judgment of conviction
imposing a non-probationable penalty is appealed or reviewed, and such judgment is modified
through the imposition of a probationable penalty, the defendant shall be allowed to apply for
probation based on the modified decision before such decision becomes final. The application for
probation based on the modified decision shall be filed in the trial court where the judgment of
conviction imposing a non-probationable penalty was rendered, or in the trial court where such case
has since been re-raffled. In a case involving several defendants where some have taken further
appeal, the other defendants may apply for probation by submitting a written application and
attaching thereto a certified true copy of the judgment of conviction.

“The trial court shall, upon receipt of the application filed, suspend the execution of the sentence
imposed in the judgment.

“This notwithstanding, the accused shall lose the benefit of probation should he seek a review of the
modified decision which already imposes a probationable penalty.

“Probation may be granted whether the sentence imposes a term of imprisonment or a fine only. The
filing of the application shall be deemed a waiver of the right to appeal.
1âwphi 1

“An order granting or denying probation shall not be appealable.”

SECTION 2. Section 9 of the same Decree, as amended, is hereby further amended to read as
follows:

“SEC. 9. Disqualified Offenders. — The benefits of this Decree shall not be extended to those:

“a. sentenced to serve a maximum term of imprisonment of more than six (6) years;

“b. convicted of any crime against the national security;

“c. who have previously been convicted by final judgment of an offense punished by
imprisonment of more than six (6) months and one (1) day and/or a fine of more than one
thousand pesos (P1,000.00);

“d. who have been once on probation under the provisions of this Decree; and

“e. who are already serving sentence at the time the substantive provisions of this Decree
became applicable pursuant to Section 33 hereof.”

SECTION 3. Section 16 of the same Decree, as amended, is hereby further amended to read as
follows:

“SEC. 16. Termination of Probation. — After the period of probation and upon consideration
of the report and recommendation of the probation officer, the court may order the final
discharge of the probationer upon finding that he has fulfilled the terms and conditions of his
probation and thereupon the case is deemed terminated.

“The final discharge of the probationer shall operate to restore to him all civil rights lost or
suspended as a result of his conviction and to totally extinguish his criminal liability as to the
offense for which probation was granted.

“The probationer and the probation officer shall each be furnished with a copy of such order.”

SECTION 4. Section 24 of the same Decree is hereby amended to read as follows:

“SEC. 24. Miscellaneous Powers of Regional, Provincial and City Probation Officers. —
Regional, Provincial or City Probation Officers shall have the authority within their territorial
jurisdiction to administer oaths and acknowledgments and to take depositions in connection
with their duties and functions under this Decree. They shall also have, with respect to
probationers under their care, the powers of a police officer. They shall be considered as
persons in authority.”

SECTION 5. Section 27 of the same Decree is hereby amended to read as follows:

“SEC. 27. Field Assistants, Subordinate Personnel. – Regional, Provincial or City Probation
Officers shall be assisted by such field assistants and subordinate personnel as may be
necessary to enable them to carry out their duties effectively.”

SECTION 6. Section 28 of the same Decree is hereby amended to read as follows:

“SEC. 28. Volunteer Probation Assistants (VPAs). — To assist the Chief Probation and
Parole Officers in the supervised treatment program of the probationers, the Probation
 Administrator may appoint citizens of good repute and probity, who have the willingness,
aptitude, and capability to act as VPAs.

“VPAs shall not receive any regular compensation except for reasonable transportation and
meal allowances, as may be determined by the Probation Administrator, for services
rendered as VPAs.

“They shall hold office for a two (2)-year term which may be renewed or recalled anytime for
a just cause. Their functions, qualifications, continuance in office and maximum case loads
shall be further prescribed under the implementing rules and regulations of this Act.

“There shall be a reasonable number of VPAs in every regional, provincial, and city probation
office. In order to strengthen the functional relationship of VPAs and the Probation
Administrator, the latter shall encourage and support the former to organize themselves in
the national, regional, provincial, and city levels for effective utilization, coordination, and
sustainability of the volunteer program.”

SECTION 7. Separability Clause. — If any provision of this Act is declared invalid, the provisions
hereof not affected by such declaration shall remain in full force and effect.

SECTION 8. Repealing Clause. — All laws, executive orders, or administrative orders, rules and
regulations or parts thereof which are inconsistent with this Act are hereby amended, repealed or
modified accordingly.

SECTION 9. Appropriations Clause. — The amount necessary to carry out the provisions of this Act
shall be included in the General Appropriations Act of the year following its enactment into law.

SECTION 10. Implementing Rules and Regulations. — Within sixty (60) days from the approval of
this Act, the Department of Justice shall promulgate such rules and regulations as may be necessary
to carry out the provisions of this Act.

SECTION 11. Effectivity. — This Act shall take effect immediately after its publication in the Official
Gazette or in two (2) newspapers of general circulation.

Approved,
 October 20, 2015

G.R. No. 206513

MUSTAPHA DIMAKUTA MARUHOM, Petitioner

vs.
PEOPLE OF THE PHIILPPINES, Respondent

DECISION

PERALTA, J.:

The Court is now faced with one of the predicaments I discussed in my Dissenting and Concurring
Opinion in Colinares v. People.1 The question regarding the application of the Probation Law is again
inescapably intertwined with the present petition. Consequently, I must reiterate my assertions and
arguments in Colinares to the case at bar.

In the present controversy, petitioner Mustapha Dimakuta y Maruhom alias Boyet was indicted for
Violation of Section 5 Paragraph (b), Article III of Republic Act (R.A.) No. 7610 or the Special
Protection of Children Against Abuse, Exploitation and Discriminatory Act. The Information reads:

That on or about the 24th day of September 2005, in the City of Las Piñas, Philippines, and within
the jurisdiction of this Honorable Court, the above-named accused, with lewd designs, did then and
there willfully, unlawfully and feloniously commit a lascivious conduct upon the person of one AAA,
who was then a sixteen (16) year old minor, by then and there embracing her, touching her breast
and private part against her will and without her consent and the act complained of is prejudicial to
the physical and psychological development of the complainant.2

After trial, the RTC promulgated its Decision3 which convicted petitioner of the crime charged and
sentenced him to suffer an indeterminate penalty of imprisonment ranging from ten (10) years of
prision mayor, as minimum, to seventeen (17) years, four (4) months and one (1) day of reclusion
temporal, as maximum, with the accessory penalty of perpetual absolute disqualification. In addition,
he was directed to pay a fine of ₱20,000.00, civil indemnity of ₱25,000.00, and moral damages of
₱25,000.00.4

Feeling aggrieved, petitioner elevated the case to the Court of Appeals (CA) arguing, among other
things, that even assuming he committed the acts imputed, still there is no evidence showing that
the same were done without the victim’s consent or through force, duress, intimidation or violence
upon her. Surprisingly, when asked to comment on the appeal, the Office of the Solicitor General
(OSG), relying heavily on People v. Abello,5 opined that petitioner should have been convicted only
of Acts of Lasciviousness under Article 336 of the Revised Penal Code (RPC) in view of the
prosecution’s failure to establish that the lascivious acts were attended by force or coercion because
the victim was asleep at the time the alleged acts were committed.

On June 28, 2012, the CA rendered a Decision6 adopting the recommendation of the OSG. In
modifying the RTC Decision, petitioner was found guilty of Acts of Lasciviousness under Article 336
of the RPC and was sentenced to suffer the indeterminate penalty of six (6) months of arresto
mayor, as minimum, to four (4) years and two (2) months of prision correccional, as maximum.
Likewise, he was ordered to pay ₱20,000.00 as civil indemnity and ₱30,000.00 as moral damages.
Petitioner received a copy of CA Decision on July 6, 2012.7 Instead of further appealing the case, he
filed on July 23, 2012 before the CA a manifestation with motion to allow him to apply for probation
upon remand of the case to the RTC.8 Petitioner invoked the case of Colinares v. People9 which
allowed petitioner therein to apply for probation after his sentence was later reduced on appeal by
the Supreme Court.

The CA issued a Resolution on September 3, 2012 denying petitioner’s manifestation with motion.10
It was ruled that Colinares is inapplicable since petitioner therein raised as sole issue the
correctness of the penalty imposed and claimed that the evidence presented warranted only a
conviction for the lesser offense. Instead, the appellate court viewed as appropriate the case
1âwphi1

of Lagrosa v. People,11 wherein the application for probation was denied because petitioners therein
put in issue on appeal the merits of their conviction and did not simply assail the propriety of the
penalties imposed.

Petitioner filed a motion for reconsideration,12 but it was denied in a Resolution13 dated March 13,
2013; hence, this petition.

The petition should be denied.

At the outset, tracing the evolution of the present Probation Law is warranted in order to better
understand and apply the wisdom of its framers to cases invoking its application.

In this jurisdiction, the concept of probation was introduced during the American colonial period.14 For
juvenile delinquents, Act No. 320315 was enacted on December 3, 1924. It was later amended by Act
Nos. 3309,16 3559,17 and 3725.18 As to offenders who are eighteen years old and above, Act No.
422119 was passed by the legislature and took effect on August 7, 1935. Said Act allowed defendants
who are convicted and sentenced by a Court of First Instance or by the Supreme Court on appeal,
except those who are convicted of offenses enumerated in Section 8 thereof,20 to be placed on
probation upon application after the sentence has become final and before its service has
begun.21 However, We declared in People v. Vera22 that Act No. 4221 is unconstitutional and void as
it constitutes an improper and unlawful delegation of legislative authority to the provincial boards.

During the martial law period, then President Ferdinand E. Marcos issued Presidential Decree (P.D.)
No. 96823 on July 24, 1976. Originally, P.D. No. 968 allowed the filing of an application for probation
at any time after the defendant had been convicted and sentenced. Section 4 of which provides:

SEC. 4. Grant of Probation. – Subject to the provisions of this Decree, the court may, after it shall
have convicted and sentenced a defendant and upon application at any time of said
defendant, suspend the execution of said sentence and place the defendant on probation for such
period and upon such terms and conditions as it may deem best.

Probation may be granted whether the sentence imposes a term of imprisonment or a fine only. An
application for probation shall be filed with the trial court, with notice to the appellate court if an
appeal has been taken from the sentence of conviction. The filing of the application shall be deemed
a waiver of the right to appeal, or the automatic withdrawal of a pending appeal. An order granting or
denying probation shall not be appealable.24

Later, the filing of an application for probation pending appeal was still allowed when Section 4 of
P.D. No. 968 was amended by P.D. No. 125725 on December 1, 1977 by providing that such
application may be made after the defendant had been convicted and sentenced but before he
begins to serve his sentence. Thus:
SEC. 4. Grant of Probation. – Subject to the provisions of this Decree, the court may, after it shall
have convicted and sentenced a defendant but before he begins to serve his sentence and
upon his application, suspend the execution of said sentence and place the defendant on
probation for such period and upon such terms and conditions as it may deem best.

The prosecuting officer concerned shall be notified by the court of the filing of the application for
probation and he may submit his comment on such application within ten days from receipt of the
notification.

Probation may be granted whether the sentence imposes a term of imprisonment or a fine with
subsidiary imprisonment in case of insolvency. An application for probation shall be filed with the trial
court, with notice to the appellate court if an appeal has been taken from the sentence of conviction.
The filing of the application shall be deemed a waiver of the right to appeal, or the automatic
withdrawal of a pending appeal. In the latter case, however, if the application is filed on or after the
date of the judgment of the appellate court, said application shall be acted upon by the trial court on
the basis of the judgment of the appellate court.

An order granting or denying probation shall not be appealable.26

On October 5, 1985, Section 4 was subsequently amended by P.D. No. 1990.27 Henceforth, the
policy has been to allow convicted and sentenced defendant to apply for probation within the 15-day
period for perfecting an appeal. As modified, Section 4 of the Probation Law now reads:

SEC. 4. Grant of Probation. – Subject to the provisions of this Decree, the trial court may, after it
shall have convicted and sentenced a defendant and upon application by said
defendant within the period for perfecting an appeal, suspend the execution of the sentence and
place the defendant on probation for such period and upon such terms and conditions as it may
deem best; Provided, that no application for probation shall be entertained or granted if the
defendant has perfected the appeal from the judgment of conviction.

Probation may be granted whether the sentence imposes a term of imprisonment or a fine only. An
application for probation shall be filed with the trial court. The filing of the application shall be
deemed a waiver of the right to appeal.

An order granting or denying probation shall not be appealable.28

The reason for the disallowance may be inferred from the preamble of P.D. No. 1990, thus:

WHEREAS, it has been the sad experience that persons who are convicted of offenses and who
may be entitled to probation still appeal the judgment of conviction even up to the Supreme Court,
only to pursue their application for probation when their appeal is eventually dismissed;

WHEREAS, the process of criminal investigation, prosecution, conviction and appeal entails too
much time and effort, not to mention the huge expenses of litigation, on the part of the State;

WHEREAS, the time, effort and expenses of the Government in investigating and prosecuting
accused persons from the lower courts up to the Supreme Court, are oftentimes rendered nugatory
when, after the appellate Court finally affirms the judgment of conviction, the defendant applies for
and is granted probation;
WHEREAS, probation was not intended as an escape hatch and should not be used to obstruct and
delay the administration of justice, but should be availed of at the first opportunity by offenders who
are willing to be reformed and rehabilitated;

WHEREAS, it becomes imperative to remedy the problems abovementioned confronting our

probation

system[.]

Observing the developments in our Probation Law, the Court settled in Llamado v. Court of
Appeals:29

Examination of Section 4, after its amendment by P.D. No. 1257, reveals that it had established a
prolonged but definite period during which an application for probation may be granted by the trial
court. That period was: "After [the trial court] shall have convicted and sentenced a defendant but
before he begins to serve his sentence." Clearly, the cut-off time – commencement of service of
sentence – takes place not only after an appeal has been taken from the sentence of conviction, but
even after judgment has been rendered by the appellate court and after judgment has become final.
Indeed, in this last situation, Section 4, as amended by P.D. No. 1257 provides that "the application
[for probation] shall be acted upon by the trial court on the basis of the judgment of the appellate
court"; for the appellate court might have increased or reduced the original penalty imposed by the
trial court. x x x

xxxx

In sharp contrast with Section 4 as amended by PD No. 1257, in its present form, Section 4
establishes a much narrower period during which an application for probation may be filed with the
trial court: "after [the trial court] shall have convicted and sentenced a defendant and – within the
period for perfecting an appeal –." As if to provide emphasis, a new proviso was appended to the
first paragraph of Section 4 that expressly prohibits the grant of an application for probation "if the
defendant has perfected an appeal from the judgment of conviction." It is worthy of note too that
Section 4 in its present form has dropped the phrase which said that the filing of an application for
probation means "the automatic withdrawal of a pending appeal." The deletion is quite logical since
an application for probation can no longer be filed once an appeal is perfected; there can, therefore,
be no pending appeal that would have to be withdrawn.

xxxx

We find ourselves unable to accept the eloquently stated arguments of petitioner's counsel and the
dissenting opinion. We are unable to persuade ourselves that Section 4 as it now stands, in
authorizing the trial court to grant probation "upon application by [the] defendant within the period for
perfecting an appeal" and in reiterating in the proviso that

"no application for probation shall be entertained or granted if the defendant has perfected an
appeal from the judgment of conviction."

did not really mean to refer to the fifteen-day period established, as indicated above, by B.P. Blg.
129, the Interim Rules and Guidelines Implementing B.P. Blg. 129 and the 1985 Rules on Criminal
Procedure, but rather to some vague and undefined time, i.e., "the earliest opportunity" to withdraw
the defendant's appeal. The whereas clauses invoked by petitioner did not, of course, refer to the
fifteen-day period. There was absolutely no reason why they should have so referred to that period
for the operative words of Section 4 already do refer, in our view, to such fifteen-day
period. Whereas clauses do not form part of a statute, strictly speaking; they are not part of
the operative language of the statute. Nonetheless, whereas clauses may be helpful to the extent
they articulate the general purpose or reason underlying a new enactment, in the present case, an
enactment which drastically but clearly changed the substantive content of Section 4 existing before
the promulgation of P.D. No. 1990. Whereas clauses, however, cannot control the specific terms of
the statute; in the instant case, the whereas clauses of P.D. No. 1990 do not purport to control or
modify the terms of Section 4 as amended. Upon the other hand, the term "period for perfecting an
appeal" used in Section 4 may be seen to furnish specification for the loose language "first
opportunity" employed in the fourth whereas clause. "Perfection of an appeal" is, of course, a term of
art but it is a term of art widely understood by lawyers and judges and Section 4 of the Probation
Law addresses itself essentially to judges and lawyers. "Perfecting an appeal" has no sensible
meaning apart from the meaning given to those words in our procedural law and so the law-making
agency could only have intended to refer the law-making agency could only have intended to refer to
the meaning of those words in the context of procedural law.30

In Sable v. People, et al.,31 this Court stated that Section 4 of the Probation Law was amended
precisely to put a stop to the practice of appealing from judgments of conviction even if the sentence
is probationable, for the purpose of securing an acquittal and applying for the probation only if the
accused fails in his bid.32 The Probation Law "expressly requires that an accused must not have
appealed his conviction before he can avail himself of probation. This outlaws the element of
speculation on the part of the accused – to wager on the result of his appeal – that when his
conviction is finally affirmed on appeal, the moment of truth well nigh at hand and the service of his
sentence inevitable, he now applies for probation as an ‘escape hatch,’ thus rendering nugatory the
appellate court's affirmance of his conviction."33

Verily, Section 4 of the Probation Law provides that the application for probation must be filed with
the trial court within the 15-day period for perfecting an appeal. The need to file it within such period
is intended to encourage offenders, who are willing to be reformed and rehabilitated, to avail
themselves of probation at the first opportunity.34 If the application for probation is filed beyond the
15-day period, then the judgment becomes final and executory and the lower court can no longer act
on the application for probation. On the other hand, if a notice of appeal is perfected, the trial court
that rendered the judgment of conviction is divested of any jurisdiction to act on the case, except the
execution of the judgment when it has become final and executory.

In view of the latest amendment to Section 4 of the Probation Law that "no application for probation
shall be entertained or granted if the defendant has perfected an appeal from the judgment of
conviction," prevailing jurisprudence35 treats appeal and probation as mutually exclusive remedies
because the law is unmistakable about it.36 Indeed, the law is very clear and a contrary interpretation
would counter its envisioned mandate. Courts have no authority to invoke "liberal interpretation" or
"the spirit of the law" where the words of the statute themselves, and as illuminated by the history of
that statute, leave no room for doubt or interpretation.37 To be sure, the remedy of convicted felons
who want to avail of the benefits of probation even after the remedy of an appeal is to go to the
Congress and ask for the amendment of the law. To surmise a converse construal of the provision
would be dangerously encroaching on the power of the legislature to enact laws and is tantamount
to judicial legislation.

With due respect, however, to the ponente and the majority opinion in Colinares,38 the application of
the Probation Law in the said case deserves a second hard look so as to correct the mistake in the
application of the law in that particular case and in similar cases which will be filed before the courts
and inevitably elevated to Us like this petition.
To refresh, Colinares concluded that since the trial court imposed a penalty beyond what is allowed
by the Probation Law, albeit erroneously, the accused was deprived of his choice to apply for
probation and instead was compelled to appeal the case. The reprehensible practice intended to be
avoided by the law was, therefore, not present when he appealed the trial court’s decision. Taking
into account that the accused argued in his appeal that the evidence presented against him
warranted his conviction only for attempted, not frustrated, homicide, the majority of the Court opined
that the accused had purposely sought to bring down the impossible penalty in order to allow him to
apply for probation.

It was obvious then, as it is now, that the accused in Colinares should not have been allowed the
benefit of probation. As I have previously stated and insisted upon, probation is not a right granted to
a convicted offender; it is a special privilege granted by the State to a penitent qualified
offender,39 who does not possess the disqualifications under Section 9 of P.D. No. 968, as
amended.40 Likewise, the Probation Law is not a penal law for it to be liberally construed to favor the
accused.41

In the American law paradigm, probation is considered as an act of clemency and grace, not a
matter of right.42 It is a privilege granted by the State, not a right to which a criminal defendant is
entitled.43 In City of Aberdeen v. Regan,44 it was pronounced that:

The granting of a deferred sentence and probation, following a plea or verdict of guilty, is
a rehabilitative measure and, as such, is not a matter of right but is a matter of grace, privilege, or
clemency granted to the deserving.

As such, even in the American criminal justice model, probation should be granted only to the
deserving or, in our system, only to qualified "penitent offenders" who are willing to be reformed and
rehabilitated. Corollarily, in this jurisdiction, the wisdom behind the Probation Law is outlined in its
stated purposes, to wit:

(a) promote the correction and rehabilitation of an offender by providing him with individualized
treatment;

(b) provide an opportunity for the reformation of a penitent offender which might be less probable
if he were to serve a prison sentence; and

(c) prevent the commission of offenses.45

As I have previously indicated in Colinares, if this Court will adopt as jurisprudential doctrine the
opinion that an accused may still be allowed to apply for probation even if he has filed a notice of
appeal, it must be categorically stated that such appeal must be limited to the following grounds:

1. When the appeal is merely intended for the correction of the penalty imposed by the lower court,
which when corrected would entitle the accused to apply for probation; and

2. When the appeal is merely intended to review the crime for which the accused was convicted and
that the accused should only be liable to the lesser offense which is necessarily included in the crime
for which he was originally convicted and the proper penalty imposable is within the probationable
period.

In both instances, the penalty imposed by the trial court for the crime committed by the accused is
more than six years; hence, the sentence disqualifies the accused from applying for probation. The
accused should then be allowed to file an appeal under the afore-stated grounds to seek a review of
the crime and/or penalty imposed by the trial court. If, on appeal, the appellate court finds it proper to
modify the crime and/or the penalty imposed, and the penalty finally imposed is within the
probationable period, the accused should still be allowed to apply for probation.

In addition, before an appeal is filed based on the grounds enumerated above, the accused should
first file a motion for reconsideration of the decision of the trial court anchored on the above-stated
grounds and manifest his intent to apply for probation if the motion is granted. The motion for
reconsideration will give the trial court an opportunity to review and rectify any errors in its judgment,
while the manifestation of the accused will immediately show that he is agreeable to the judgment of
conviction and does not intend to appeal from it, but he only seeks a review of the crime and/or
penalty imposed, so that in the event that the penalty will be modified within the probationable limit,
he will immediately apply for probation. Without such motion for reconsideration, the notice of appeal
should be denied outright.

The notice of appeal should contain the following averments:

(1) that an earlier motion for reconsideration was filed but was denied by the trial court;

(2) that the appeal is only for reviewing the penalty imposed by the lower court or the conviction
should only be for a lesser crime necessarily included in the crime charged in the information; and

(3) that the accused-appellant is not seeking acquittal of the conviction.

To note, what Section 4 of the Probation Law prohibits is an appeal from the judgment of conviction,
which involves a review of the merits of the case and the determination of whether the accused is
entitled to acquittal. However, under the recommended grounds for appeal which were enumerated
earlier, the purpose of the appeal is not to assail the judgment of conviction but to question only the
propriety of the sentence, particularly the penalty imposed or the crime for which the accused was
convicted, as the accused intends to apply for probation upon correction of the penalty or conviction
for the lesser offense. If the CA finds it proper to modify the sentence, and the penalty finally
imposed by the appellate court is within the probationable period, or the crime for which the accused
is eventually convicted imposes a probationable penalty, application for probation after the case is
remanded to the trial court for execution should be allowed.

It is believed that the recommended grounds for appeal do not contravene Section 4 of the Probation
Law, which expressly prohibits only an appeal from the judgment of conviction. In such instances,
the ultimate reason of the accused for filing the appeal based on the afore-stated grounds is to
determine whether he may avail of probation based on the review by the appellate court of the crime
and/or penalty imposed by the trial court. Allowing the afore-stated grounds for appeal would give an
accused the opportunity to apply for probation if his ground for appeal is found to be meritorious by
the appellate court, thus, serving the purpose of the Probation Law to promote the reformation of a
penitent offender outside of prison.

On the other hand, probation should not be granted to the accused in the following instances:

1. When the accused is convicted by the trial court of a crime where the penalty imposed is within
the probationable period or a fine, and the accused files a notice of appeal; and

2. When the accused files a notice of appeal which puts the merits of his conviction in issue, even
if there is an alternative prayer for the correction of the penalty imposed by the trial court or for a
conviction to a lesser crime, which is necessarily included in the crime in which he was convicted
where the penalty is within the probationable period.

Both instances violate the spirit and letter of the law, as Section 4 of the Probation Law prohibits
granting an application for probation if an appeal from the sentence of conviction has been perfected
by the accused.

In this case, petitioner appealed the trial court’s judgment of conviction before the CA alleging that it
was error on the part of the RTC to have found him guilty of violating Section 5(b), Article III of R.A.
No. 7610. He argued that the RTC should not have given much faith and credence to the testimony
of the victim because it was tainted with inconsistencies. Moreover, he went on to assert that even
assuming he committed the acts imputed on him, still there was no evidence showing that the
lascivious acts were committed without consent or through force, duress, intimidation or violence
because the victim at that time was in deep slumber. It is apparent that petitioner anchored his
appeal on a claim of innocence and/or lack of sufficient evidence to support his conviction of the
offense charged, which is clearly inconsistent with the tenor of the Probation Law that only qualified
penitent offender are allowed to apply for probation. The CA, therefore, did not err in applying the
similar case of Lagrosa v. People46 wherein the protestations of petitioners therein did not simply
assail the propriety of the penalties imposed but meant a profession of guiltlessness, if not complete
innocence.

To be sure, if petitioner intended in the first instance to be entitled to apply for probation he should
have admitted his guilt and buttressed his appeal on a claim that the penalty imposed by the RTC
was erroneous or that he is only guilty of a lesser offense necessarily included in the crime for which
he was originally convicted. Unfortunately for him, he already perfected his appeal and it is late in
the day to avail the benefits of probation despite the imposition of the CA of a probationable penalty.

As regards the CA Decision convicting petitioner of the crime of Acts of Lasciviousness under Article
336 of the RPC, such conclusion clearly contravenes the law and existing jurisprudence.

Petitioner was charged and convicted by the trial court with violation of Section 5(b), Article III of
R.A. No. 7610 based on the complaint of a sixteen (16)-year-old girl for allegedly molesting her by
touching her breast and vagina while she was sleeping. The provision reads:

SEC. 5. Child Prostitution and Other Sexual Abuse. – Children, whether male or female, who for
money, profit, or any other consideration or due to the coercion or influence of any adult,
syndicate or group, indulge in sexual intercourse or lascivious conduct, are deemed to be children
exploited in prostitution and other sexual abuse.

The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed upon
the following:

xxxx

(b) Those who commit the act of sexual intercourse or lascivious conduct with a child exploited in
prostitution or subject to other sexual abus; Provided, That when the victim is under twelve (12)
years of age, the perpetrators shall be prosecuted under Article 335, paragraph 3, for rape and
Article 336 of Act No. 3815, as amended, the Revised Penal Code, for rape or lascivious conduct, as
the case may be: Provided, That the penalty for lasciviousconduct when the victim is under twelve
(12) years of age shall be reclusion temporal I its medium period; x x x(Emphasis supplied)

The elements of sexual abuse are as follows:

1. The accused commits the act of sexual intercourse or lascivious conduct.

2. The said act is performed with a child exploited in prostitution or subjected to sexual abuse.

3. The child, whether male or female, is below 18 years of age.47

Under Section 5, Article III of R.A. No. 7610, a child is deemed subjected to other sexual abuse
when he or she indulges in lascivious conduct under the coercion or influence of any adult.48 This
statutory provision must be distinguished from Acts of Lasciviousness under Articles 336 and 339 of
the RPC. As defined in Article 336 of the RPC, Acts of Lasciviousness has the following elements:

(1) That the offender commits any act of lasciviousness or lewdness;

(2) That it is done under any of the following circumstances:

a. By using force or intimidation; or

b. When the offended party is deprived or reason or otherwise unconscious; or

c. When the offended party os under 12 years of age; and

That the offended party is another person of either sex.49

Article 339 of the RPC likewise punishes acts of lasciviousness committed with the consent of the
offended party done by the same persons and under the same circumstances mentioned in Articles
337 and 338 of the RPC, to wit:

1. if committed against a virgin over twelve years and under eighteen years of age by any person
in public authority, priest, home-servant, domestic, guardian, teacher, or any person who, in any
capacity, shall be entrusted with the education or custody of the woman; or

2. if committed by means of deceit against a woman who is single or a widow of good

reputation, over twelve but under eighteen years of age.

Therefore, if the victim of the lascivious acts or conduct is over 12 years of age and under eighteen
(18) years of age shall be liable for:

1. Other acts of lasciviousness under Art. 339 of the RPC, where the victim is
a virgin and consents to the lascivious acts through abuse of confidence or when the victim
is single or a widow of good reputation and consents to the lascivious acts through deceit, or;

2. Acts of lasciviousness is not covered by lascivious conduct as defined in R.A. No. 7610. In case
the acts of lasciviousness is covered by lascivious conduct under R.A. No. 7610 and it is done
through coercion or influence, which established absences or lack of consent, the Art.336 of the
RPC is no longer applicable

3. Section 5(b), Article III of R.A. No. 7610, where there was no consent on the part of the victim to
the lascivious conduct, which was done through the employment of coercion or influence. The
offender may likewise be liable for sexual abuse under R.A. No. 7610 if the victim is at least eighteen
(18) years and she is unable to fully take care of herself or protect herself from abuse, neglect,
cruelty, exploitation or discrimination because of a physical or mental disability or condition.50
Article 226-A, paragraph 2 of the RPC, punishes inserting of the penis into another person's mouth
or anal orifice, or any instrument or object, into the genital or anal orifice of another person if the
victim did not consent either it was done through force, threat or intimidation; or when the victim is
deprived of reason or is otherwise unconscious; or by means of fraudulent machination or grave
abuse of authority as sexual assault as a form of rape. However, in instances where the lascivious
conduct is covered by the definition under R.A. No 7610, where the penalty is reclusion temporal
medium, and the act is likewise covered by sexual assault under Article 266-A, paragraph 2 of the
RPC, which is punishable by prision mayor, the offender should be liable for violation of Section 5(b),
Article III of R.A. No. 7610, where the law provides for the higher penalty of reclusion temporal
medium, if the offended party is a child victim. But if the victim is at least eighteen (18) years of age,
the offender should be liable under Art. 266-A, par. 2 of the RPC and not R.A. No. 7610, unless the
victim is at least eighteen (18) years and she is unable to fully take care of herself or protect herself
from abuse, neglect, cruelty, exploitation or discrimination because of a physical or mental disability
or condition, in which case, the offender may still be held liable for sexual abuse under R.A. No.
7610.

There could be no other conclusion, a child is presumed by law to be incapable of giving rational
consent to any lascivious act, taking into account the constitutionally enshrined State policy to
promote the physical, moral, spiritual, intellectual and social well-being of the youth, as well as, in
harmony with the foremost consideration of the child’s best interests in all actions concerning him or
her.51 This is equally consistent with the with the declared policy of the State to provide special
protection to children from all forms of abuse, neglect, cruelty, exploitation and discrimination,
and other conditions prejudicial to their development; provide sanctions for their commission and
carry out a program for prevention and deterrence of and crisis intervention in situations of child
abuse, exploitation, and discrimination.52 Besides, if it was the intention of the framers of the law to
make child offenders liable only of Article 266-A of the RPC, which provides for a lower penalty than
R.A. No. 7610, the law could have expressly made such statements.

As correctly found by the trial court, all the elements of sexual abuse under Section 5(b), Article III of
R.A. No. 7610 are present in the case at bar. 1âw phi 1

First, petitioner’s lewd advances of touching the breasts and vagina of his hapless victim constitute
lascivious conduct as defined in Section 32, Article XIII of the Implementing Rules and Regulations
(IRR) of R.A. No. 7610:

[T]he intentional touching, either directly or through clothing, of the genitalia, anus, groin, breast,
inner thigh, or buttocks, or the introduction of any object into the genitalia, anus or mouth, of any
person, whether of the same or opposite sex, with an intent to abuse, humiliate, harass, degrade, or
arouse or gratify the sexual desire of any person, bestiality, masturbation, lascivious exhibition of the
genitals or pubic area of a person.53

Second, petitioner clearly has moral ascendancy over the minor victim not just because of his
relative seniority but more importantly due to the presumed presence of mutual trust and confidence
between them by virtue of an existing employment relationship, AAA being a domestic helper in
petitioner’s household. Notably, a child is considered as sexually abused under Section 5(b) of R.A.
No. 7610 when he or she is subjected to lascivious conduct under the coercion or influence of any
adult. Intimidation need not necessarily be irresistible. It is sufficient that some compulsion
equivalent to intimidation annuls or subdues the free exercise of the will of the offended party.54 The
law does not require physical violence on the person of the victim; moral coercion or ascendancy is
sufficient.55 On this point, Caballo v. People56 explicated:
As it is presently worded, Section 5, Article III of RA 7610 provides that when a child indulges in
sexual intercourse or any lascivious conduct due to the coercion or influence of any adult,
the child is deemed to be a "child exploited in prostitution and other sexual abuse." In this
manner, the law is able to act as an effective deterrent to quell all forms of abuse, neglect, cruelty,
exploitation and discrimination against children, prejudicial as they are to their development.

In this relation, case law further clarifies that sexual intercourse or lascivious conduct under the
coercion or influence of any adult exists when there is some form of compulsion equivalent to
intimidation which subdues the free exercise of the offended party’s free will. Corollary
thereto, Section 2(g) of the Rules on Child Abuse Cases conveys that sexual abuse involves the
element of influence which manifests in a variety of forms. It is defined as:

The employment, use, persuasion, inducement, enticement or coercion of a child to engage in, or
assist another person to engage in, sexual intercourse or lascivious conduct or the molestation,
prostitution, or incest with children.

To note, the term "influence" means the "improper use of power or trust in any way that deprives a
person of free will and substitutes another’s objective." Meanwhile, "coercion" is the "improper use of
x x x power to compel another to submit to the wishes of one who wields it."57

Finally, the victim is 16 years of age at the time of the commission of the offense. Under Section 3
(a) of R.A. No. 7610, "children" refers to "persons below eighteen (18) years of age or those over but
unable to fully take care of themselves or protect themselves from abuse, neglect, cruelty,
exploitation or discrimination because of a physical or mental disability or condition."

The decision of the trial court finding the petitioner guilty of Violation of Section 5(b), Article III R.A.
No. 7610 should have been upheld by the CA instead of erroneously adopting the recommendation
of the OSG, which inaccurately relied on People v. Abello.58 In said case, the decisive factor for the
acquittal of the accused was not the absence of coercion or intimidation on the offended party, who
was then sleeping at the time the lascivious act was committed, but the fact that the victim could not
be considered as a "child" under R.A. No. 7610. This Court held that while the twenty-one year old
woman has polio as a physical disability that rendered her incapable of normal function, the
prosecution did not present any testimonial or documentary evidence - any medical evaluation or
finding from a qualified physician, psychologist or psychiatrist - attesting that the physical condition
rendered her incapable of fully taking care of herself or of protecting herself against sexual abuse.

Thus, it is clear that petitioner could not have been entitled to apply for probation in the first place.
Regrettably, since neither the accused nor the OSG questioned the CA Decision, it has attained
finality and to correct the error at this stage is already barred by the right of the accused against
double jeopardy.

Based on the above disquisitions, the petitioner should be denied the benefit of the Probation Law
and that the Court should adopt the recommendations above-stated in situations where an accused
files an appeal for the sole purpose of correcting the penalty imposed to qualify him for probation or
where he files an appeal specifically claiming that he should be found guilty of a lesser offense
necessarily included with the crime originally filed with a prescribed penalty which is probationable.

SO ORDERED.

DIOSDADO M. PERALTA