Case # 15

RODOLFO TIGOY, G.R. No. 144640

Petitioner,
Present:
PUNO, J., Chairperson,
- versus SANDOVAL-GUTIERREZ,
CORONA,
AZCUNA, and
GARCIA, JJ.
COURT OF APPEALS AND
PEOPLE OF THE PHILIPPINES, Promulgated:
Respondents.
June 26, 2006

x ---------------------------------------------------------------------------------------- x

DECISION
AZCUNA, J.:

This is a petition for review under Rule 45 of the Rules of Court assailing the
decision and resolution, dated March 6, 2000 and August 23, 2000, respectively, of
the Court of Appeals in CA-G.R. CR No. 20864 entitled People of the Philippines
v. Nestor Ong and Rodolfo Tigoy, acquitting Nestor Ong for insufficiency of
evidence, while convicting Rodolfo Tigoy for violating Section 68 of Presidential
Decree (P.D.) No. 705 or the Revised Forestry Code of the Philippines, as
amended by Executive Order (E.O.) No. 277, Series of 1987, in relation to Articles
309 and 310 of the Revised Penal Code.
The facts of the case are as follows:

On August 3, 1993, Nestor Ong, who had been engaged in the trucking
business in Iligan City since 1986, was allegedly introduced by his friend Gamad
Muntod to Lolong Bertodazo who signified his intent to rent the trucks of Ong to
transport construction materials from Larapan, Lanao del Norte to Dipolog City. A
Contract to Transport was supposedly entered into between Ong and Bertodazo,
the salient portions of which state:

1. That the party of the First Part is an owner of Cargo Trucks with
place of business at Iligan City;

2. That the party of the Second Part is a businessman dealing in buy

and sell of General Merchandise, dry goods and construction
materials;

3. That the party of the Second Part will engage the services of the
two (2) cargo trucks of the party of the First Part;

4. That the services agreed upon should be rendered by the party of

the First Part on August 3, 1993 from Larapan, Linamon, Lanao
del Norte to Dipolog City for an agreed amount of TEN
THOUSAND (P10,000.00) Pesos per truck or a total of
TWENTY THOUSAND (P20,000.00) Pesos, Philippine Currency
for the carriage of cement and other merchandise owned by the
party of the Second Part;

5. That any legal controversy involving the cargo or of and when

the cargo trucks are not actually used for the purpose herein
stipulated, it is agreed that the same is the sole responsibility of
the party of the Second Part without any liability of the party of
the First Part.[1]
In the evening of October 3, 1993, Ong allegedly ordered Nestor Sumagang
and petitioner Rodolfo Tigoy who had been employed by him as truck drivers for
two (2) years and ten (10) years, respectively, to bring the two trucks to Lolong
Bertodazo in Larapan, Lanao del Norte which is about fifteen (15) minutes away
from Iligan City. He instructed the two drivers to leave the trucks in Larapan for
the loading of the construction materials by Lolong Bertodazo, and to go back at
dawn for the trip to Dipolog City. Thus, after meeting with Bertodazo, Sumagang
and petitioner Tigoy allegedly went home to return to Larapan at four oclock in the
morning the next day. When they arrived, the trucks had been laden with bags of
cement and were half-covered with canvas.[2] Before departing, they allegedly
checked the motor oil, water, engine and tires of the trucks to determine if the same
were in good condition.
 That same morning of October 4, 1993, Senior Inspector Rico Lacay Tome
(then Deputy Chief of Police of Ozamis City), while escorting Provincial Director
Dionisio Coloma at the ICC Arts Center in Ozamis City, along with the members
of the Special Operation Group, received a dispatch from the 466th PNP Company
situated at Barangay Bongbong, Ozamis City, informing him that two trucks, a
blue and green loaded with cement, that were going towards Ozamis City did not
stop at the checkpoint. Upon receiving the report, Tome, along with PO2 Peter
Paul Nuqui and PO3 Bienvenido Real, boarded their patrol vehicle, a mini cruiser
jeep, to intercept the two trucks at Lilian Terminal, Ozamis City.[3]

At the Lilian Terminal, PO2 Nuqui, who was the only one in uniform among
the police officers, flagged down the two trucks but the same just sped away and
proceeded towards the direction of Oroquieta City. Aboard their patrol vehicle,
they chased the trucks and overtook the same at Barangay Manabay. They blocked
the road with their vehicle causing the two trucks to stop.

According to Senior Inspector Tome, he asked the driver who had alighted
from the green truck why he did not stop at the checkpoint but the latter did not
answer. When he inquired what was loaded in the truck, the driver replied that
there is S.O.P, which means grease money in street parlance. [4] This raised the
suspicion of Tome that the trucks were loaded with hot items.

Meanwhile, the blue truck which had been speeding behind the green truck
and was being driven by Sumagang was intercepted by PO3 Real. Upon
inspection, the police officers discovered piles of sawn lumber beneath the cement
bags in both trucks. Tome inquired if the drivers had a permit for the lumber but
the latter could not produce any.

The drivers were brought and turned over to the investigator at the City Hall
in Ozamis City. The truckmen, namely, Felix Arante and Doro Lopez, and another
passenger whom Tigoy identified as Lolong Bertodazo, who were riding with them
in the trucks, were not investigated. According to Nuqui, they did not notice that
the group had left. It was later learned that they were instructed by Sumagang to
inform Nestor Ong of the incident.
 Afterwards, the group of Tome proceeded back to the ICC Arts Center and
informed the Provincial Director of the apprehension. Meanwhile, the drivers,
Tigoy and Sumagang, were detained at the Ozamis City Police Station while
Arante and Lopez were released.[5]

Meanwhile, Ermelo delos Santos, Chief of the Department of Environment

and Natural Resources Community and Environment and Natural Resources Office
(DENR-CENRO),[6] after receiving a call from the Ozamis City Police Station that
two trucks were apprehended transporting sawn lumber without a permit and were
brought to the City Hall, sent Rolando Dingal, Forester of the DENR, together with
Teodoro Echavez, Juanito Taruc and Lucio Penaroya, to investigate.

Petitioner Tigoy and Sumagang presented to Dingal the registration papers

of the two trucks and appearing therein was the name of Nestor Ong as the owner.
After ascertaining that the sawn lumber loaded on the two trucks did not have
supporting documents, Dingal and his companions scaled the subject lumber and
prepared a tally sheet. Loaded in the blue Nissan ten-wheeler truck were 229
pieces of lumber with a total volume of 6,232.46 board feet; and, in the green Isuzu
eight-wheeler truck, 333 pieces of lumber with a total volume of 5,095.5 board
feet.[7] Consequently, the lumber and the vehicles were seized upon the order of the
DENR Regional Executive Director.[8]

On October 6, 1993, an Information was filed against Nestor Ong,

Sumagang, Lolong Bertodazo and petitioner Tigoy for possession of forest
products without legal permit, thus:

That on or about the 4th day of August, 1993 at Barangay

Catadman, Ozamiz City, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring and
confederating together and mutually helping each other, for a common
design, did then and there willfully, unlawfully, feloniously and illegally
possess and transport without the necessary legal documents nor permit
from the lawful authorities, sawn dipterocarp lumbers (Philippine
Mahogany), in the following manner, to wit: accused Nestor Ong, being
the owner of 2 ten wheeler trucks with Plate Nos. GDA-279 and PNH-
364 facilitated and allowed the use and transport of above-stated sawn
[lumber] from Larapan, Lanao del Norte, but intercepted by the PNP
 authorities in Ozamiz City; while the accused Lolong Bertodazo
facilitated the loading and transport of said sawn lumbers, while accused
Nestor Sumagang y Lacson drove the Nissan 10 wheeler cargo truck
bearing Plate No. GDA-279 which was loaded with 333 pieces of said
sawn dipterocarp lumbers (Philippine Mahogany) of assorted sizes
equivalent [to] 5,095.5 board feet which was concealed under piled bags
of cement, which lumbers [were] valued at P134, 242.36; while accused
Rodolfo Tigoy drove the 8 wheeler Isuzu truck bearing Plate No. ONH-
364, which was loaded and transported with 229 pieces of sawn
dipterocarp lumbers (Philippine Mahogany) of assorted sizes equivalent
to 6,232.46 board feet which was concealed under piled bags of cement
which lumbers [were] valued at P92,316.77 or total value
of P226,559.13, without, however, causing damage to the government,
inasmuch as the aforestated lumbers were recovered.

CONTRARY to Section 68 of Presidential Decree 705, as

amended by Executive Order No. 277, Series of 1987, in relation to
Article 309 and 310 of the Revised Penal Code.[9]

Ong and petitioner Tigoy entered pleas of not guilty during the
arraignment. Sumagang died after the case was filed while the other co-accused,
Lolong Bertodazo, was not arrested and has remained at large.

On October 11, 1996, the Regional Trial Court rendered its Decision, the
dispositive portion of which reads:

WHEREFORE, finding accused Nestor Ong and Rodolfo Tigoy

[GUILTY] beyond reasonable doubt of possession of dipterocarp lumber
[VALUED] at more than P22,000.00 without the legal documents as
required by existing laws and regulations, penalized as qualified theft,
this Court sentences them to an indeterminate penalty of ten (10) years
and one (1) day of prision mayor to eighteen (18) years and three (3)
months of reclusion temporal. The lumber and the conveyances used are
forfeited in favor of the government. With costs.

The DENR is ordered to sell/dispose of the lumber and conveyances in

accordance with the existing laws, WITHOUT DELAY. Let the Court of
Appeals, Fourteenth Division, before which accused Ongs appeal of this
Courts denial of his action for replevin relative to his trucks is pending,
be furnished with a copy of this judgment.
 With costs.

SO ORDERED.[10]

Declaring that constructive possession of unlicensed lumber is not within the

contemplation of Section 68 of P.D. No. 705, and for failure by the prosecution to
prove the complicity of Ong, the Court of Appeals

rendered its decision on March 6, 2000 modifying the ruling of the lower court,
thus:

WHEREFORE, the judgment appealed from is hereby

MODIFIED in that accused-appellant Nestor Ong is acquitted for
insufficiency of evidence and his two (2) trucks are ordered returned to
him. The conviction of Rodolfo Tigoy is upheld and the decision
dated October 11, 1996 is AFFIRMED in all respects.

SO ORDERED.[11]

On March 24, 2000, petitioner filed with the Court of Appeals a Motion for
Reconsideration praying for his acquittal but the same was denied on August
23, 2000.

Hence, this petition, with the following assignment of errors:

I
THE COURT OF APPEALS ERRED IN FINDING
COLLUSION BETWEEN LOLONG BERTODAZO AND
PETITIONER TIGOY;

II
THE COURT OF APPEALS ERRED IN COMPLETELY
DISREGARDING THE AFFIDAVIT OF LOLONG BERTODAZO
AGAINST HIS PENAL INTEREST;

III
 THE COURT OF APPEALS ERRED IN FINDING
PETITIONER TIGOY TO HAVE KNOWLEDGE OF THE LUMBER
HE WAS TRANSPORTING; AND,

IV
THE COURT OF APPEALS ERRED IN FINDING THAT
PETITIONER TIGOY HAD ACTUAL AND PHYSICAL
POSSESSION OF THE UNDOCUMENTED LUMBER.[12]

Stated otherwise, the core issue presented is whether or not petitioner Tigoy is
guilty of conspiracy in possessing or transporting lumber without the necessary
permit in violation of the Revised Forestry Code of the Philippines.
Section 68 of P.D. No. 705, as amended by E.O. No. 277, otherwise known
as the Revised Forestry Code of the Philippines, provides:
Section 68. Cutting, Gathering and/or Collecting Timber or
Other Forest Products Without License. Any person who shall cut,
gather, collect, remove timber or other forest products from any forest
land, or timber from alienable or disposable public land, or from private
land, without any authority, or possess timber or other forest products
without the legal documents as required under existing forest laws and
regulations, shall be punished with the penalties imposed under Articles
309 and 310 of the Revised Penal Code. . . .

There are two ways of violating Section 68 of the above Code: 1) by cutting,
gathering and/or collecting timber or other forest products without a license; and,
2) by possessing timber or other forest products without the required legal
documents.

Petitioner was charged with and convicted of transporting lumber without a permit
which is punishable under Section 68 of the Code. He, Sumagang and the rest of
their companions were apprehended by the police officers in flagrante delicto as
they were transporting the subject lumber from Larapan to Dipolog City.

Petitioner maintains that he could not have conspired with Lolong Bertodazo
as he did not know about the unlicensed lumber in the trucks. He believed that
what he was transporting were bags of cement in view of the contract between Ong
and Bertodazo. Also, he was not around when Bertodazo loaded the trucks with the
lumber hidden under the bags of cement.
This contention by petitioner, however, was not believed by the lower
court. In declaring that petitioner connived with Bertodazo in transporting the
subject lumber, the court a quo noted:

x x x The evidence of the prosecution established that the two drivers of

accused Ong refused to stop at a checkpoint, a fact admitted by both in
their affidavit, Exhs. E and E-2. Likewise, the two drivers refused to stop
on the national highway near a bus terminal when required by a
uniformed policeman. When finally accosted, one of the drivers, whom
witness Tome identified as the driver of the green truck, Sumagang, but
who actually was Tigoy (as he was the driver of the green truck and who
came to the road block first, being the lead driver) offered S.O.P. which
to witness Tome meant that the trucks were carrying hot items.

Why would the drivers refuse to stop when required? Did they fear
inspection of their cargo? Why would S.O.P. (which in street parlance is
grease money) be offered to facilitate the passage of the trucks? The only
logical answer to all these questions is that the drivers knew that they
were carrying contraband lumber. This Court believes that the drivers
had knowledge of the fact that they were transporting and were in
possession of undocumented lumber in violation of law.[13]

In offenses considered as mala prohibita or when the doing of an act is

prohibited by a special law such as in the present case, the commission of the
prohibited act is the crime itself. It is sufficient that the offender has the intent to
perpetrate the act prohibited by the special law, and that it is done knowingly and
consciously.[14]

Direct proof of previous agreement to commit an offense is not necessary to

prove conspiracy.[15] Conspiracy may be proven by circumstantial evidence.[16] It
may be deduced from the mode, method and manner by which the offense is
perpetrated, or inferred from the acts of the accused when such acts point to a joint
purpose and design, concerted action and community of interest.[17] It is not even
required that the participants have an agreement for an appreciable period to
commence it.[18]
 Petitioners actions adequately show that he intentionally participated in the
commission of the offense for which he had been charged and found guilty by both
the trial court and the Court of Appeals.

Finding that petitioners conviction was reached without arbitrariness and

with sufficient basis, this Court upholds the same. The Court accords high respect
to the findings of facts of the trial court, its calibration of the collective testimonies
of the witnesses, its assessment of the probative weight of the evidence of the
parties as well as its conclusions[19] especially when these are in agreement with
those of the Court of Appeals, which is the case here. As a matter of fact, factual
findings of the trial court, when adopted and confirmed by the Court of Appeals,
are generally final and conclusive.[20]

WHEREFORE, the petition is DENIED and the Decision and Resolution,

dated March 6, 2000 and August 23, 2000, respectively, of the Court of Appeals in
CA-G.R. CR No. 20864 are hereby AFFIRMED.

Costs against petitioner.

SO ORDERED.

Case No. 33 – Stages of Execution

[G.R. No. 143838. May 9, 2002]

ADELMO PEREZ y AGUSTIN, petitioner, vs. COURT OF APPEALS and

PEOPLE OF THE PHILIPPINES, respondents.

DECISION
KAPUNAN, J.:

This is a petition for review on certiorari seeking to reverse and set aside
the Decision, dated December 16, 1999, of the Court of Appeals in CA-G.R.
CR No. 19971 affirming the conviction of petitioner Adelmo Perez y Agustin
for the crime of Attempted Rape.
The Information filed against petitioner with the Regional Trial Court,
Branch 2 of Balanga, Bataan reads:

That on or about April 14, 1988 in Morong, Bataan, Philippines and within the
jurisdiction of this Honorable Court, the said accused did then and there willfully,
unlawfully and feloniously, by means of force and intimidation, commence the
commission of the crime of rape upon Julita Tria y Balagao directly by overt acts, to
wit:

That the said accused, without the permission of anyone, entered the room of Julita
Tria and once inside, embraced and kissed her on the neck, held and mashed her
breast and compelled her to lie down, and thereafter kissed her lips and neck and with
the intent of having carnal knowledge with her, touched her sex organ and tried to
remove her panties thereby commencing [t]he commission of the crime of Rape
directly by overt acts but said accused did not accomplish his purpose, that is, to have
a carnal knowledge with her, it was not because of his spontaneous and voluntary
desistance but because the said Julita Tria succeeding in resisting his criminal attempt
and also due to the timely arrival of her mother to the damage and prejudice of the
said Julita Tria y Balagao.

CONTRARY TO LAW.[1]

At his arraignment, with the assistance of counsel, petitioner pleaded not

guilty. Trial ensued.
To buttress its case against petitioner, the prosecution presented the
testimonies of Eufemia Tria, mother of the complainant, Julita Tria, the
complainant, and Dr. Emmanuel Cortez-Asuncion. As culled from the decision
of the CA, these witnesses testified as follows:

Eufemia Tria, in her testimony, gave an account of the incident that took place in the
morning of April 14, 1988. She was then washing clothes outside their house when
she heard someone cry Inay. She then peeped into their window which was just a few
meters from where she was and there saw her daughter Julita lying flat on a bamboo
bed with her skirt raised. She saw accused Adelmo on top of Julita with her hands
pinned down. As accused was kissing her daughter in the neck, his buttocks were
moving in an up and down motion while her daughter was fighting back and
struggling to break free. Eufemia then rushed straight to the room where she found
accused hiding under the bamboo bed. She then ordered the accused to come out
which he did. She thought of hacking the accused with the bolo which she found
hanging on the wall but realized that she could not do it and instead dragged the
accused out of the house and brought him to his parents house to tell them what
happened.

Complainant Julita Tria testified that in the morning of April 14, 1988, after she was
through with washing the dishes, she proceeded to the bedroom to store away their,
beddings. Suddenly, out of nowhere, accused appeared pulled her by the hand,
embraced her from behind and held her breasts. At this juncture, he pulled her to the
bamboo bed, positioned himself on top of her and placed her hands behind her as he
kissed her lips and neck. She tried to avoid his kisses by moving her head from side to
side. As she was pinned by accuseds vise-like grip, accused then managed to insert his
right hand inside her t-shirt and bra and squeezed nipples. Thereafter, he tried to raise
her balloon-like skirt with his right hand, inserted it inside her panty and held her
private part while making up and down motions. Accused then retorted Sige na,
pagbigyan mo na ako. It was at this point when she cried out Inay. Shortly thereafter,
her mother entered the room and found the accused under the bamboo bed.

Complainant further testified that it was not the first time that accused assaulted
her. On March 25, 1988, while she was in the kitchen doing the dishes, accused
suddenly appeared at her back with unzipped shorts and bare torso, embraced her and
warned her not to make a sound or else he would kill her. He then jumped out of the
window and fled. She did not tell anybody about this incident for fear that accused
will make good his promise.

Dr. Emmanuel Cortez-Asuncion who conducted the medical examination on the

complainant, testified as to the extent of injuries sustained by her and that the slight
physical injuries could have been caused by attempted rape (TSN, September 16,
1988).[2]

For its part, the defense presented as its witnesses Junar Perez and
petitioner. They testified as follows:

Junar Perez is a ten (10) year old grade IV honor pupil who at the time of the incident
was on vacation at his grandmothers place. In the morning of April 14, 1988, he was
playing with his cousins near the house of his Auntie Feming (Julitas mother) when he
got thirsty and asked for a drink in the latters house. There he saw Julita and accused
conversing while seated on a bench near the door. He also saw Eufemia washing
clothes a few meters away from Julita and the accused. He did not hear any noise in
the house.

Accused Adelmo Perez declared that he was in Julitas house that morning of April 14,
1988 upon her prodding for him to come over as he would often do. When Junar had
left the house, he invited Julita to the room where they could not be seen by her
mother, there they embraced and kissed, he then inserted his hand inside her clothes,
held her breast and slowly laid her on the bamboo bed. Shortly thereafter, her mother
called Julita so she stood up but later returned and they again resumed embracing and
kissing after which they laid down on the bamboo bed and he was able to place
himself on top of her. He sensed that someone had entered the house and so stood up
and hid under the bed upon Julitas advice. He denied that the acts done were against
Julitas will. In fact, he claimed that he and Julita were already becoming intimate.[3]

After the prosecution and the defense presented their respective evidence,
the trial court rendered judgment finding petitioner guilty of attempted
rape. The dispositive portion of the trial courts decision reads:

WHEREFORE, judgment is hereby rendered convicting the accused, Adelmo Perez y

Agustin, of the crime of ATTEMPTED RAPE, the prosecution having proved his
guilt beyond reasonable doubt. Said accused is hereby sentenced to jail term of two
(2) years, four (4) months and one (1) day of prision correccional as minimum to eight
(8) years and one (1) day of prision mayor as maximum. He shall be credited with
time spent under detention.

SO ORDERED.[4]

Aggrieved, petitioner appealed to the CA. The appellate court, finding the
appeal to be unmeritorious, affirmed petitioners conviction. The dispositive
portion of the assailed decision reads:

WHEREFORE, the judgment herein appealed from is hereby AFFIRMED in

toto. Costs against appellant.

SO ORDERED.[5]

Petitioner now comes to this Court assailing the decision of the

CA. Petitioner raises the following issues:
I

WAS THE CRIME COMMITTED BY THE PETITIONER ATTEMPTED RAPE

OR ACTS OF LASCIVIOUSNESS; and

II
 DID THE PROSECUTION PRESENT THE QUANTUM OF PROOF
NECESSARY TO ESTABLISH THE GUILT OF THE PETITIONER BEYOND
REASONABLE DOUBT.

The petition is partly meritorious. The issues shall be discussed jointly as

they are interrelated.
To exculpate himself, petitioner impugns the credibility of the
complainant. Petitioner contradicts the complainants allegations as he
(petitioner) insists that what transpired between them was a consensual act.
It is well settled in this jurisdiction that the determination of credibility of
witnesses is properly within the domain of the trial court as it is in the best
position to observe their demeanor and bodily movements. The trial court in
[6]

this case found the witnesses for the prosecution and their version of the
incident more credible as it made these findings:

No woman would ordinarily complain to the police and concoct a story that an uncle
attempted to rape her, or subject herself to medical examination of her private parts,
unless righteous indignation compelled her. This was particularly reinforced by the
fact that she submitted herself thereto that afternoon of the same day, accompanied by
her father and mother.

Julitas and her mothers accounts were clear, spontaneous, natural and credible as
weighed against the flimsy excuse of the accused.

The physician admitted that the physical injuries suffered by Julita could have been
caused by attempted rape.

Julita would not have shouted, Inay if she liked and consented to what her uncle was
doing to her. The intact hymen of Julita also disproves the accuseds declaration that
they were getting intimate. He himself refused to call themselves lovers.

The intention to force Julita to submit to sexual intercourse has been proved by these
pieces of evidence which have not been refuted or disproved: he suddenly kissed,
embraced and dragged her to the bamboo bed where he continued to kiss her lips and
neck; then squeezed her nipples and mashed her breast by inserting his hand in her
panty and held her vagina, doing the up and down movement as he held her hands
under her with his left hand; he unzipped his short pants; put out his penis while on
top of her, as Julita struggled, kicked and pushed (after he [sic] hands were freed) to
extricate herself. The medical certificate found physical injuries in the neck and navel
which could have been caused by blunt force, FORCE WOULD HAVE BEEN
UNNECESSARY IF JULITA CONSENTED TO THESE ACTS.[7]
 These findings of the trial court had been affirmed by the CA. The Court is
not inclined to deviate from these courts findings that petitioner, against the
will of the complainant, performed sexual acts on the latter. However, a
careful review of the records of the case shows that the crime committed by
petitioner was acts of lasciviousness not attempted rape.
Under Article 6 of the Revised Penal Code, there is an attempt when the
offender commences the commission of a felony directly by overt acts, and
does not perform all the acts of execution which should produce the felony by
reason of some cause or accident other than his own spontaneous
desistance. In the crime of rape, penetration is an essential act of execution to
produce the felony. Thus, for there to be an attempted rape, the accused
[8]

must have commenced the act of penetrating his sexual organ to the vagina
of the victim but for some cause or accident other than his own spontaneous
desistance, the penetration, however slight, is not completed.
There is no showing in this case that petitioners sexual organ had even
touched complainants vagina nor any part of her body. The complainant
testified as follows:
Q: After Adelmo Perez embraced you by the way you demonstrated, what else did
Adelmo Perez do?
A: He pulled me towards the bamboo bed (papag).
Q: How did he pull you towards the bamboo bed?
A: While he was embracing me.
Q: He pulled you towards the wooden bed while he was holding you or embracing you
in that position you are demonstrating?
A: Yes, sir.
xxx
Q: While you were sitting on the lap of the accused Adelmo Perez, what else did
Adelmo Perez do to you?
A: He laid me face up on the papag or on the wooden bed, sir.
Q: Did he manage to lay you down on the wooden papag?
A Yes, your honor.

xxx
Q: How were you positioned in (sic) the wooden bed or papag after Adelmo Perez
succeed in lying you down?
A: I was lying face up your Honor.
xxx
Q: And while you were in that position or nakatihaya po ako, what else did Adelmo
Perez do?
A: He placed himself on top of me, sir.
Q: What was his position?
A: He was lying face down on me.
Q: When you said Adelmo Perez succeeded in lying down in the wooden papag, what
was the position of your feet?
A: They were hanging from the edge of the papag your honor.

xxx
Q: And while your two hands were at your back, the way you demonstrated where was
Adelmo Perez?
A: He was on top of me, sir.
Q: And what was he doing?
A: He was kissing me on my lips and my neck, sir.
Q: And while Adelmo Perez was kissing you, what did you do, if you did anything?
A: I was trying to avoid his face sir by moving my face.
xxx
Q: What exactly did you want to do with that movement?
A: I was trying to avoid his face by moving my face, so that he could not kiss me and I
was trying to extricate myself.
Q: So what you were trying to avoid is his face?
A: Yes, your honor.
Q: You mean his right hand was free but it was not doing anything?
A: It was moving your Honor.
Q: But it was not doing anything aside from merely moving?
A: His right hand was doing something.
Q: Precisely you were asked.
A: He inserted his right hand inside my T-shirt and inside my bra.
Q: And after, when the right hand of Adelmo Perez was inside your bra, what did he do
or what was his right hand doing inside your bra?
A: He was mashing my nipple, sir.
Q: Which nipples?
A: Both nipples, Your Honor.
 Q: You mean your brassier was not detached but his hand was inside, between your
brassier and the nipple?
A: Yes, Your Honor.
Q: While the right hand of Adelmo Perez was inside your bra and squeezing your
nipple, what else did he do?
A: He took his hand off from the inside of my T-shirt and he tried to raise my skirt, sir.

xxx
Q: And while the accused Adelmo Perez tried to raise your skirt, what else did you do?
A: He inserted his hand inside my panties and held my vagina, sir.
Q: What did he use in holding your vagina?
A: Right hand, sir.
Q: And when he held your vagina, what did his right hand do with your vagina?
A: He held it, sir.

xxx
Q: What happened next?
A: After he held my vagina he told me Sige na, pagbigyan mo na ako and that was the
time I shouted.

xxx
Q: What did you say when you shouted?
A: I said Inay (The witness shouted).[9]
Petitioners acts of lying on top of the complainant, embracing and kissing
her, mashing her breasts, inserting his hand inside her panty and touching her
sexual organ, while admittedly obscene and detestable acts, do not constitute
attempted rape absent any showing that petitioner actually commenced to
force his penis into the complainants sexual organ. Rather, these acts
constitute acts of lasciviousness. The elements of said crime are: (1) that the
offender commits any act of lasciviousness or lewdness; (2) that it is done (a)
by using force and intimidation or (b) when the offended party is deprived of
reason or otherwise unconscious, or (c) when the offended party is under 12
years of age; and (3) that the offended party is another person of either sex. [10]

All these elements are present and have been sufficiently established in
this case. Petitioner clearly committed lewd acts against the
complainant. Moreover, petitioner employed force when he committed these
acts on the complainant. In fact, as found by the trial court, there were bruises
on complainants neck and navel which belie petitioners claim that the
complainant consented to these acts.
 Although the information filed against petitioner was for attempted rape, he
can be convicted of acts of lasciviousness because the crime of acts of
lasciviousness is included in rape. [11]

The penalty for acts of lasciviousness is prision correccional. There being [12]

no aggravating or mitigating circumstance alleged and proven in this case, the

penalty prescribed by law shall be imposed in its medium period, i.e., from 2 [13]

years, 4 months and 1 day to 4 years and 2 months. Applying the

Indeterminate Sentence Law, said penalty shall constitute the maximum term,
while the minimum shall be within the range of the penalty next lower to that
prescribed by the Revised Penal Code for the offense, i.e., arresto mayor or 1
month and 1 day to 6 months. Petitioner is hereby sentenced to suffer the
penalty of 6 months of arresto mayor, as minimum, to 4 years and 2 months
of prision correccional, as maximum.
WHEREFORE, the Decision, dated December 16, 1999, of the Court of
Appeals in CA-G.R. CR No. 19971 is hereby MODIFIED. Petitioner Adelmo
Perez y Agustin is found guilty beyond reasonable doubt of the crime of acts
of lasciviousness, as defined and penalized under Article 336 of the Revised
Penal Code, and sentenced to suffer the indeterminate penalty of 6 months
of arresto mayor, as minimum, to 4 years and 2 months of prision
correccional, as maximum.
SO ORDERED.

Case No. 51 – Circumstances affecting criminal liability

PEOPLE OF THE G.R. No. 177355

PHILIPPINES,
Plaintiff-Appellee, Present:

CORONA, C.J.,
Chairperson,
VELASCO, JR.,
- versus - LEONARDO-DE CASTRO,
DEL CASTILLO, and
PEREZ, JJ.

Promulgated:
MONTANO FLORES y PARAS,
Accused-Appellant. December 15, 2010
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
 DECISION

LEONARDO-DE CASTRO, J.:

Accused-appellant Montano Flores is now before us on review after the

Court of Appeals, in its Decision[1] dated November 21, 2006, in CA-G.R. CR No.
00502, affirmed in toto, the October 13, 2004 Decision[2] of the Regional Trial
Court (RTC), Branch 62, Gumaca, Quezon, in Criminal Case No. 7098-G, which
found Flores guilty beyond reasonable doubt of the crime of Qualified Rape as
defined and penalized under Article 266-A of the Revised Penal Code and imposed
on him the penalty of DEATH and the payment of Seventy-Five Thousand Pesos
(P75,000.00) as civil indemnity, Fifty Thousand Pesos (P50,000.00) as moral
damages and Twenty-Five Thousand Pesos (P25,000.00) as exemplary damages.
On August 17, 2001, Flores was charged before the RTC of Rape. The
accusatory portion of the Information reads:

That on or about the 18th day of June 2001, at Barangay Payte,

Municipality of Pitogo, Province of Quezon, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, with
lewd designs, armed with a bladed weapon, with force, threats and
intimidation, did then and there willfully, unlawfully and feloniously
have carnal knowledge of one [AAA],[3] a minor, 13 years of age at the
time of the commission of the offense, against her will.

That the crime of rape was committed with the qualifying

circumstances of victim being under 18 years of age, the accused is her
stepfather, being the common-law spouse of her mother, and that the
rape was committed in full view of the victims mother, [BBB].[4]

Flores pleaded not guilty to the charge upon arraignment on February 12,
2002. Trial on the merits ensued after the termination of the pre-trial conference.
The prosecutions first witness was Dr. Purita T. Tullas, the Medical Officer of
Gumaca District Hospital who examined the victim AAA. She produced the
Medico-Legal Certificate dated June 19, 2001, wherein she made the following
findings:
P.E. * No signs of external physical injury

I.E. : Vulva presence of moderate amount

of pubic hair

Labia majora and minora well coaptated

Contusion labia minora, left
Vaginal orifice admits 5th finger
with resistance
Hymen fresh lacerations at 3, 6,
and 9 oclock

Vaginal smear negative for sperm cells.[5]

Dr. Tullas testified that the labia minora was slightly swollen and reddish
which means that there was a forceful penetration probably by a male sex organ,
and that the lacerations could have been inflicted within 24 hours before the
examination. The doctor also said that it was most likely AAAs first sexual
experience as the orifice of her vagina was still tight and AAA felt pain when she
was examined. Dr. Tullas said that the absence of sperm cells was probably
because AAA had washed her organ before she went to the hospital for
examination. Dr. Tullas further testified that AAA was around 13 years old as her
body only started to physically develop.[6]

BBB, the victims mother, was presented next. She testified that AAA was 13
years old at the time of the incident, and that AAA was her daughter with her late
husband. She confirmed that Flores was her live-in-partner for ten years prior to
the incident and that they all lived together in one house. BBB swore that on the
fateful evening of July 18, 2001, at around eight oclock, Flores ordered her to ask
her daughter AAA to sleep with them. Both AAA and BBB obeyed Flores for fear
of his wrath. At around ten oclock in the evening, BBB was awakened by the pinch
of her daughter, BBB was then shocked to see that Flores was already on top of her
daughter, who was shouting Aray, Aray, Nanay, Aray. She felt angry but could not
do anything because Flores not only had a bladed weapon poked at her neck, but
he also threatened to kill her if she shouted. BBB endured this horrifying episode
for the next thirty minutes. The following day, BBB accompanied her daughter
AAA to the Barangay Captain to report the incident. They went to the
municipalitys Department of Social Welfare and Development then proceeded to
the Gumaca District Hospital.[7]

The third witness for the prosecution was the victim herself, AAA. She
testified that she knew Flores because he was the common-law spouse of her
mother. She identified him in open court and said that she filed this case against
him because he raped her. She testified that on the night she was raped, she was
sleeping between Flores and her mother, BBB, when she was awakened by Flores
who removed her shorts and panty. Flores then proceeded to insert his penis into
her vagina, making a push and pull movement. She shouted in pain and tried to
wake her mother up by pinching her.However, AAA realized that her mother will
not be able to help her as she felt the bladed weapon Flores had poked at BBBs
neck.[8]

Flores, for himself, denied raping AAA. He claimed that BBB was his
mother-in-law and not his live-in partner. He alleged that he and AAA had been
sweethearts for four years prior to the incident and that it was the first time he and
AAA had sexual relations due to his enormous respect for her. He also claimed that
it was AAA who slept beside him and he was the one awakened by AAA, whom
he found on top of him. He averred that AAA was already 19 years old at the time
of the incident and even produced a Certification from the Office of the Municipal
Civil Registrar[9] of General Luna, Quezon to prove that AAA was no longer a
minor at the time of the sexual intercourse. He also claimed that he and AAA
talked after this case was filed and they agreed to get married, but AAA could not
withdraw the case for fear of her mother. Flores further claimed that the reason
why this charge was filed against him was because he refused to live with BBB,
who wanted Flores for herself.[10]

On October 13, 2004, the RTC handed down a guilty verdict against Flores
and imposed on him the supreme penalty of death:
 WHEREFORE AND IN VIEW OF ALL THE FOREGOING, the Court
finds accused MONTANO FLORES guilty beyond reasonable doubt of
the crime of Qualified Rape defined and punished under Article 266-A
of the Revised Penal Code as amended by R.A. 8353 and imposes upon
him the penalty of DEATH, and in addition, to pay the amount of
Php75,000.00 as civil indemnity, Php50,000.00 as moral damages and
Php25,000.00 as exemplary damages.[11]

In its decision, the RTC debunked Flores sweetheart defense. The RTC said
that AAAs testimony was frank, candid, and straightforward,[12] and AAA was able
to establish that Flores was able to have carnal knowledge of her, and his guilt for
the crime of rape.[13] The RTC further held that AAAs allegations were not only
corroborated by her own mothers testimony, but also by the medico-legal findings
of Dr. Tullas. The RTC found Flores imputation of ill motive on BBB was
incredible as no mother would subject her own daughter to such humiliation and
shame, just because she was shunned by the man she desires. In sum, the RTC said
that all the essential elements of rape were proven and duly established, and Flores
blanket denial cannot overcome the categorical assertions of AAA.[14]

On intermediate appellate review, the Court of appeals was faced with the sole
issue of whether or not the RTC erred in sentencing him to death:

LONE ASSIGNMENT OF ERROR

THE TRIAL COURT GRAVELY ERRED IN IMPOSING UPON THE

ACCUSED-APPELLANT THE SUPREME PENALTY OF DEATH IN
VIEW OF THE FAILURE OF THE PROSECUTION TO PROVE THE
PRIVATE COMPLAINANTS MINORITY.[15]

Flores claimed that the RTC erred in sentencing him to death considering that
AAA was already 18 years old at the time of the alleged rape. Flores averred that
although AAA was stated to be 13 years old in the Information, AAA was in fact
no longer a minor, as shown in the Certification issued by the Office of the
Municipal Civil Registrar of General Luna, Quezon. The Court of Appeals agreed
with Flores that AAA was indeed already 18 years old when she was
raped. However, this did not prevent the Court of Appeals from affirming the
imposition of the death penalty as the rape was committed in full view of AAAs
mother, hence, under the Revised Penal Code, the death penalty shall still be
imposed. The dispositive portion of the Court of Appeals decision reads:

WHEREFORE, finding no reversible error, the appealed

Decision dated October 13, 2004 of the Regional Trial Court, Branch 62,
Gumaca, Quezon, finding appellant MONTANO FLORES guilty of the
crime of QUALIFIED RAPE is hereby AFFIRMED in toto. However,
in lieu of the death penalty imposed by the trial court, appellant is hereby
sentenced to suffer the penalty of RECLUSION PERPETUA, pursuant
to Republic Act No. 9346. With regards to civil indemnity, the accused
is hereby ORDERED TO PAY the victim the amount of P75,000.00 as
civil indemnity.

And in addition, accused is also ORDERED to pay the

victim P50,000.00 as moral damages and P25,000.00 as exemplary
damages.[16]

On December 6, 2006, Flores filed his Notice of Appeal and subsequently

filed a Manifestation that he is adopting the arguments in his Appellants Brief in
this appeal.

Flores is now before this Court with the same lone assignment of error,
wherein he questions the propriety of the imposition of the death penalty upon him
in view of the fact that AAAs minority was not conclusively proven by the
prosecution.

This Court has made a thorough and exhaustive review of all the records of
this case and has found no reason to reverse the judgment below.

We agree with Flores that AAAs age was not proven with certainty. This
Court has held that for minority to be considered as a qualifying circumstance in
the crime of rape, it must not only be alleged in the Information, but it must also be
established with moral certainty.[17] Noting the divergent rulings on the proof
required to establish the age of the victim in rape cases, this Court, in People v.
Pruna,[18] has set out the following guidelines in appreciating age, either as an
element of the crime or as a qualifying circumstance:

1. The best evidence to prove the age of the offended party is an

original or certified true copy of the certificate of live birth of
such party.

2. In the absence of a certificate of live birth, similar authentic

documents such as baptismal certificate and school records which
show the date of birth of the victim would suffice to prove age.

3. If the certificate of live birth or authentic document is shown to

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

a. If the victim is alleged to be below 3 years of age and what is

sought to be proved is that she is less than 7 years old;

b. If the victim is alleged to be below 7 years of age and what is

sought to be proved is that she is less than 12 years old;

c. If the victim is alleged to be below 12 years of age and what is

sought to be proved is that she is less than 18 years old.

4. In the absence of a certificate of live birth, authentic document,

or the testimony of the victims mother or relatives concerning the
victims age, the complainants testimony will suffice provided that
it is expressly and clearly admitted by the accused.

5. It is the prosecution that has the burden of proving the age of the
offended party. The failure of the accused to object to the
testimonial evidence regarding age shall not be taken against
him.[19]
 In the case at bar, not only did the prosecution fail to present AAAs birth
certificate, but BBB, the victims mother herself, gave contradictory statements on
the true age of her daughter. At one time she said that AAA was 13 years old, and
yet when asked about the year of AAAs birthday, she declared that it was
1982. AAA herself did not know the exact year she was born. The Certification
from the Municipal Civil Registrar[20] of General Luna, Quezon that both parties
offered as evidence of AAAs age has no probative value because it was not a
certification as to the true age of AAA but as to the fact that the records of birth
filed in their archives included those registered from 1930 up to the time the
certificate was requested, and that records for the period of 1930 June 23, 1994
were razed by fire.

However, as the Court of Appeals correctly ruled, Flores still cannot escape the
penalty of death. Flores forgot the important fact that aside from AAAs minority,
the qualifying circumstance that the rape was committed in full view of AAAs
mother was also alleged in the Information, to wit:

That on or about the 18th day of June 2001, at Barangay Payte,

Municipality of Pitogo, Province of Quezon, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, with
lewd designs, armed with a bladed weapon, with force, threats and
intimidation, did then and there willfully, unlawfully and feloniously
have carnal knowledge of one [AAA], a minor, 13 years of age at the
time of the commission of the offense, against her will.

That the crime of rape was committed with the qualifying

circumstances of victim being under 18 years of age, the accused is her
stepfather, being the common-law spouse of her mother, and that the
rape was committed in full view of the victims mother, [BBB].[21]

Under Article 266-B of the Revised Penal Code, when rape is committed in full
view of the parent, the penalty to be imposed is death, to wit:

ART. 266-B. Penalties.- Rape under paragraph 1 of the next preceding

article shall be punished by reclusion perpetua.
xxxx
The death penalty shall be imposed if the crime of rape is committed
with any of the following aggravating/qualifying circumstances:

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

2) When the victim is under the custody of the police or military

authorities or any law enforcement or penal institution;

3) When the rape is committed in full view of the spouse,

parent, any of the children or other relatives within the
third civil degree of consanguinity.

4) When the victim is a religious engaged in legitimate religious

vocation or calling and is personally known to be such by the
offender before or at the time of the commission of the crime;

5) When the victim is a child below seven (7) years old;

6) When the offender knows that he is afflicted with Human

Immuno-Deficiency Virus (HIV)/Acquired Immune
Deficiency Syndrome (AIDS) or any other sexually
transmissible disease and the virus or disease is transmitted to
the victim;

7) When committed by any member of the Armed Forces of the

Philippines or para-military units thereof or the Philippine
National Police or any law enforcement agency or penal
institution, when the offender took advantage of his position to
facilitate the commission of the crime;

8) When by reason or on the occasion of the rape, the victim

suffered permanent physical mutilation or disability;

9) When the offender knew of the pregnancy of the offended

party at the time of the commission of the crime and;
 10) When the offender knew of the mental disability, emotional
disorder and/or physical handicap of the offended party at the
time of the commission of the crime. (Emphases ours.)

Both the RTC and the Court of Appeals found that the prosecution was able to
sufficiently prove the qualifying circumstance that Flores raped AAA in full view
of her mother. This Court has found the testimonies of both AAA and BBB to be
candid, frank, and genuine. Despite the fact that both daughter and mother did not
know how to read nor write, they were able to narrate to the court their harrowing
experience with the utmost openness, candor, and sincerity. AAAs mother
recounted the painful details of that night in a straightforward manner, to wit:

Q On that particular date and time, what were you doing then?
A While Montano was doing that to the victim, I was lying and I was
being pinched by my daughter, Mam.

INTERPRETER:

The witness demonstrating gesture on her neck.

PROSECUTOR FLORIDO:

Q Now, when you were awakened, when your daughter was pinching
your neck, what did you see?
A He was on top of her, Mam.

Q Who was on top?

A Montano, Mam.

Q And who was under?

A [AAA], Mam.

Q And what was happening when this Montano was on top of [AAA]?
A My daughter was crying, Mam.
 Q And while this Montano was on top of [AAA], what was Montano
actually doing?
A Iniiyot po niya. He was having sexual intercourse with her.

Q And during the time that he was doing sexual intercourse with her,
your daughter was crying?
A Yes, Mam.

Q So, when you have seen those incident, your live-in-partner was
having sexual intercourse with your daughter while your daughter
was crying, what did you do, if any?
A I let, I just allowed them. Nagpabaya na lamang.

Q Why did you say you let them allow?

A Because he was poking a weapon on me, Mam.

Q Who was poking a weapon? On you?

A He, Mam.

Q Are you referring to Montano?

A Yes, Mam.

Q What kind of weapon was that?

A The one used in scalling fish, Mam.

Q Was that a sharp object?

A Yes, Mam.

Q Do I get from you, while Montano Flores was having sexual

intercourse with your daughter, your daughter was crying and this
Montano Flores was poking a weapon a sharp instrument on you?
A Yes, Mam.[22]

It is indisputable that when Flores raped AAA, he committed such act in full
view of BBB, AAAs mother. Hence, the RTC was correct in imposing upon Flores
the penalty of death as it found Flores guilty beyond reasonable doubt of the crime
of qualified rape. However, although under the Death Penalty Law,[23] the crime
of qualified rape is punishable by death, Republic Act No. 9346,[24] which took
effect on June 24, 2006, prohibits the imposition of the death penalty. Under this
Act, the proper penalty to be imposed upon Flores in lieu of the death penalty
is reclusion perpetua,[25] without eligibility for parole.[26]

Civil indemnity ex delicto is mandatory upon a finding of the fact of

[27]
rape. Moral damages are automatically awarded without need of further proof,
because it is assumed that a rape victim has actually suffered moral injuries
entitling the victim to such award.[28] Pursuant to prevailing jurisprudence,[29] the
amount of Fifty Thousand Pesos (P50,000.00) as moral damages must be increased
to Seventy-Five Thousand Pesos (P75,000.00), and exemplary damages increased
from Twenty-Five Thousand Pesos (P25,000.00) to Thirty Thousand Pesos
(P30,000.00)
WHEREFORE, premises considered, the decision of the Court of Appeals
in CA-G.R. CR No. 00502, is hereby AFFIRMED with
MODIFICATION. Accused-appellant Montano Flores y Paras is
found GUILTY beyond reasonable doubt of the crime of QUALIFIED RAPE,
and sentenced to reclusion perpetua, in lieu of death, without eligibility for
parole. He is ordered to pay the victim AAA Seventy-Five Thousand Pesos
(P75,000.00) as civil indemnity, Seventy-Five Thousand Pesos (P75,000.00) as
moral damages and Thirty Thousand Pesos (P30,000.00) as exemplary damages,
ALL with interest at the rate of 6% per annum from the date of finality of this
judgment. No costs.

SO ORDERED.

Case No. 69 – Circumstances affecting criminal liability

RICARDO BACABAC, G.R. No. 149372

Petitioner,
Present:

PUNO, C.J.,*
- versus - QUISUMBING, J., Chairperson,**
CARPIO,***
CARPIO MORALES,
TINGA, and
VELASCO, JR., JJ.
PEOPLE OF THE
PHILIPPINES, Promulgated:
Respondent. September 11, 2007

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DECISION

CARPIO MORALES, J.:

In the evening of December 23, 1990, Hernani Quidato (the victim) was at a
dance hall in Purok 4, San Joaquin, Iloilo City in the company of
Eduardo Selibio (Eduardo) and Melchor Selibio(Melchor). And so were Jonathan
Bacabac (Jonathan) and Edzel Talanquines (Edzel).[1]

Jonathan and Edzel left the dance hall. Not long after, the victim and his
companions also left and on their way home, they encountered Jonathan and
Edzel. It appears that the two groups then and there figured in a misunderstanding.
On his way home, Jesus Delfin Rosadio (Jesus), who was also at the dance
hall, noticed a commotion. He soon saw that Melchor was hugging Edzel, and later
tying Jonathan with his hands. Still later, he saw the victim hit Edzel with a
stick.[2] He thus told the victim and his companions that Edzel is the son of
Councilor Jose Talanquines, Jr. (Jose), whereupon Eduardo[3] told him (Jesus) to
go away for they might shoot him. Jesus thus left and proceeded to Edzels
residence to report to his father what he had witnessed. In the meantime, Edzel and
Jonathan managed to flee.

The victim and his companions thereafter headed for home in the course of
which they met Pat. Ricardo Bacabac (herein petitioner), together with Edzel and
Jonathan who are his nephews, and Edzels father, Jose, his mother, and two sisters
at the corner of M.H. Del Pilar and Sto. Domingo Streets. Petitioner and Jose were
carrying M-16 armalites, while Jonathan and Edzel were carrying a piece of wood
and a revolver, respectively.
 Jesus thereupon pointed to the victim and his companions as the ones who
had manhandled Jonathan and Edzel. The victim apologized, explaining that he
and his companions mistook Jonathan and Edzel for other persons. Jesus blurted
out, however, You are just bragging that you are brave. You are only bullying
small children.[4] Petitioner, at that instant, fired his armalite into the air, while Jose
fired his armalite (as if spraying his rifle from right to left) at the victim and
Eduardo, even hitting Jonathan in the thigh as he (Jonathan) was on the move to
strike [the victim] with a piece of wood. Eduardo fell. And so did the victim who
was in a kneeling position, and as he was raising his hands in surrender, Jose shot
him again.

Meanwhile, Melchor escaped.[5]

The victim, Eduardo, and Jonathan were brought to the hospital. The victim
was pronounced dead on arrival. Eduardo died two hours later.

Post-mortem examination showed that the victim sustained two bullet

wounds in the thoraco-abdominal regions and one bullet wound in the extremities,
and that he died due to maceration of the internal organs due to bullet
wounds.[6] Eduardo sustained two bullet wounds in the thoraco-abdominal region,
and died of hemorrhage due to gunshot wounds.[7]

Two Informations for Murder were filed with the Regional Trial Court
(RTC) of Iloilo City against Jose, Edzel, Jonathan, Jesus, and the herein
petitioner. The accusatory portion of the first Information, docketed as Criminal
Case No. 35783, reads:

That on or about the 23rd day of December, 1990, in the

Municipality of San Joaquin, Province of Ilo-ilo, Philippines, and
within the jurisdiction of this Honorable Court, the above-named
accused, conspiring, confederating and mutually helping one another
to better realize their purpose, armed with two (2) M16
[a]rmalite [r]ifles and one (1) nickel-plated revolver of unknown make
and caliber, with deliberate intent and decided purpose to kill, with
treachery and evident premeditation and without any justifiable cause
or motive, did then and there willfully, unlawfully and feloniously
 assault, attack and shoot one HERNANI QUIDATO with the firearms
they were then provided,
inflicting upon the latter gunshot wounds on the different parts of his
body which caused the immediate and instantaneous death of said
Hernani Quidato.

CONTRARY TO LAW.[8]

The accusatory portion of the second Information, docketed as Criminal

Case No. 35784, reads:

That on or about the 23rd day of December, 1990, in the

Municipality of San Joaquin, Province of Iloilo, Philippines, and
within the jurisdiction of this Honorable Court, the above-named
accused, conspiring, confederating and mutually helping one another
to better realize their purpose, armed with two (2) M16
[a]rmalite [r]ifles and one (1) nickel-plated revolver of unknown make
and caliber, with deliberate intent and decided purpose to kill, with
treachery and evident premeditation and without any justifiable cause
or motive, did then and willfully, unlawfully and feloniously assault,
attack and shoot one EDUARDO SELIBIO with the firearms they
were then provided inflicting upon the latter gunshot wounds on the
different parts of his body which caused the immediate and
instantaneous death of said Eduardo Selibio.

CONTRARY TO LAW.[9]

The cases were jointly tried.

By Decision of April 30, 1993, Branch 39 of the Iloilo RTC, finding the
presence of conspiracy among petitioner and his co-accused,[10] convicted them of
murder qualified by treachery.[11]The dispositive portion of the decision of the trial
court reads:

WHEREFORE, premises considered, judgment is hereby

rendered as follows:

In Criminal Case No. 35783, all the accused, namely;

Jose Talanquines, Jr., Edzel Talanquines, Jonathan Bacabac, Pat.
Ricardo Bacabac, and Jesus Delfin Rosadio are hereby found guilty
beyond reasonable doubt of the crime of murder and there being no
aggravating circumstances with one mitigating circumstance
[immediate vindication for Jose and Jesus; voluntary surrender for
Pat. Ricardo Bacabac[12]], and applying the indeterminate sentence
law, accused Jose Talanquines, Jr., Ricardo Bacabac and Jesus Delfin
Rosadio are hereby sentenced each to suffer imprisonment for a
period of 10 years and 1 day, as minimum, to 17 years, 4 months and
1 day as maximum; while accused Edzel Talanquines and Jonathan
Bacabac who are entitled to the privileged mitigating circumstance of
minority and the ordinary mitigating circumstance of immediate
vindication of a grave offense are hereby sentenced each to suffer
imprisonment for a period of four (4) years, 2 months, and 1 day, as
minimum, to 10 years and 1 day as maximum. All the accused are
ordered to pay jointly and severally the heirs of the deceased Hernani
Quidato, the amount of P50,000.00 for his wrongful
death; P20,000.00 for moral damages; P10,000.00 for attorneys fees;
and the costs of the suit.(Underscoring supplied)

In Criminal Case No. 35784, judgment is hereby rendered as

follows:
All the accused, namely; Jose Talanquines, Jr., Edzel
Talanquines, Jonathan Bacabac, Pat. Ricardo Bacabac and Jesus
Delfin Rosadio are hereby found guilty of the crime of Murder and
there being no aggravating circumstance with one mitigating
circumstance, accused Jose Talanquines, Jr., Ricardo Bacabac and
Jesus Delfin Rosadio are hereby sentenced each to
suffer imprisonment for a period of 10 years and 1 day as minimum,
to 17 years, 4 months and 1 day, as maximum; while accused Edzel
Talanquines and Jonathan Bacabac who are entitled to the privileged
mitigating circumstance of minority and the ordinary mitigating
circumstance of immediate vindication of a grave offense, are hereby
sentenced to suffer imprisonment for a period of 4 years, 2 months
and 1 day, as minimum to 10 years and 1 day as maximum. All the
accused are ordered to pay jointly and severally the heirs of the
deceased Eduardo Selibio, the amount of P50,000.000 for his
wrongful death; P20,000.00 for moral damages; P10,000.00 for
attorneys fees; and the costs of the suit. (Underscoring supplied)
 Accused Jesus Delfin Rosadio, who is detained, is hereby
credited with the number of days he spent under detention, if he is
qualified.

SO ORDERED.[13]

While petitioner and his co-accused filed a Notice of Appeal[14] which was
given due course,[15] only petitioner filed a Brief, albeit beyond the extensions
granted to him, drawing the Court of Appeals to dismiss his appeal. [16] The
conviction of petitioners co-accused had thus become final and executory.

Petitioners Motion for Reconsideration[17] of the dismissal of his appeal

having been denied,[18] he filed a Petition for Review with this Court which, by
Resolution of October 22, 1997, directed the Court of Appeals to reinstate
petitioners appeal.[19]

By Decision[20] of June 28, 1999, the Court of Appeals affirmed the trial
courts decision. Entry of final judgment was made by the Court of Appeals on July
22, 1999.[21]

The trial court thereafter issued a February 7, 2000 Order directing the
issuance of warrants for the arrest of the accused.[22] Except petitioner, all were
arrested.[23]

On February 24, 2000, petitioner filed before the appellate court a Petition
for Relief from Judgment, Order, and/or Denial of Appeal[24] which was
granted,[25] hence, the Entry of Judgment issued by the appellate court on July 22,
1999 was set aside. He thereafter filed a Motion for Reconsideration[26] of the
appellate courts June 28, 1999 Decision which was denied by Resolution of August
8, 2001;[27] hence, the present Petition for Review on Certiorari.[28]

Petitioner assails the Court of Appeals decision as follows:

First: Contrary to its conclusion on the basis of the facts of the

case, Petitioner may not be deemed to be in conspiracy with the
other Accused.
 Second: Contrary to its conclusion, there was no treachery.

Third: Contrary to its conclusion, Petitioner, assuming in

gratis argumenti the correctness of the pronouncement of guilt,
should have been credited with the mitigating circumstance of
immediate vindication of a grave offense, in the same manner that
the other Accused were so credited.

Fourth: Contrary to its conclusion, the guilt of the Petitioner

has not been proved beyond reasonable doubt; hence, by the equipoise
rule, should have been acquitted.

Fifth: Contrary to its conclusion, Petitioner is not civilly

[29]
liable. (Emphasis in the original)

The Court notes that the first, second, and fifth arguments of petitioner were, in the
main, raised before the appellate court.[30]

During the pendency of the present petition, petitioner, through counsel,

filed before the trial court an Urgent Ex Parte Alternative Motions (Re: Pat.
Ricardo Bacabacs Motion for Reconsideration and/or to Vacate the Order
dated February 7, 2000 [directing the arrest of the accused] and to Recall the
Warrant of Arrest Dated the Same Date in so far as the Accused Pat. Ricardo
Bacabac Only is Concerned).[31] The trial court denied[32] the motion as it did
deny[33] petitioners motion for reconsideration,[34] drawing petitioner to file before
this Court on October 5, 2006 a Motion to Vacate Order for the Arrest of the
Accused and the Warrant of Arrest Issued by the Regional Trial Court (Branch 39)
of Iloilo City.[35]

In his Motion to Vacate Order for the Arrest of the Accused and the Warrant
of Arrest Issued by the Regional Trial Court . . . , petitioner argues that

[T]he basis of the RTCs Order of February 7, 2000 was

the Entry of Judgment by the Court of Appeals dated 25 November
1999.[36] BUT THE SAID ENTRY OF JUDGMENT was
ALREADY VACATED and SET-ASIDE BY THE COURT OF
APPEALS ITSELF ON ITS RESOLUTION DATED 13
 DECEMBER 2000. Therefore, the RTCs Order of 7 February
2000 was ipso facto vacated.[37](Emphasis in the original)

and that
[T]he second sentence of Section 7, Rule 65 of the Rules of
Court cited by the Order of 13 July 2006 does not apply to the case at
bench because the main case on the merits which originated in the
RTC as Criminal Cases Nos. 35783-84, went to the Court of Appeals
as CA-G.R. No. 16348 and is now pending in the Supreme Court
(Third Division) as G.R. No. 149372 because of the Petition for
Review On Certiorarifiled by Movant herein x x x. THE MAIN
CASE IS NO LONGER PENDING IN THIS HONORABLE
COURT [sic]. THEREFORE, THE RTC HAS NO
JURISDICTION TO REITERATE AND EXECUTE THE
ORDER OF 7 FEBRUARY 2000.[38] (Emphasis in the original)

As this Court hereby affirms petitioners conviction, resolution of his Motion

to Vacate . . . is rendered unnecessary.

Petitioner, denying the presence of conspiracy on his part, argues:

[The petitioner] affirms that he was at the scene of the incident

and merely fired a warning shot into the air to respond to a public
disturbance, and his firing a warning shot into the air was intended to
avert further acts of violence; both circumstances, therefore, being
merely and solely in pursuance to his avowed duty to keep peace and
order in the community and clearly not to be part of any alleged
community of design to kill the victims.

xxxx
Another indication that there was no unity of purpose and of
execution in so far as the Petitioner is concerned is his conduct after
Jose Talanquines, Jr. shot the victims. Eyewitness accounts state
that after that lone warning shot, closely followed by Jose
Talanquines, Jr. firing at the victims, the petitioner merely stood there
and did nothing and said nothing. This is obviously because he was
himself stunned by the fast happening of events. The investigating
police officer, PO3 NESTOR SANTACERA, on rebuttal, likewise,
admitted to the facts that ten (10) minutes after the incident, they (the
police) responded and upon arrival thereat, learned that the Petitioner
already reported the incident to their station and that it
was the Petitioner who first reported the shooting incident
officially to their office. The aforedescribed proven conduct of the
Petitioner during and immediately after the incident in question are,
Petitioner respectfully submits, inconsistent with what a co-
conspirators is [sic] wont to do under the circumstances. It is
submitted instead that his conduct on the contrary underscores the
lack or want of community of purpose and interest in the killing
incident to make him criminally liable under the conspiracy theory.

Finally, in connection with the conspiracy theory and anent

the finding below that the Petitioner and his Co-Accused waited for
the victims arrival at the corner of St. Domingo and M.H. del Pilar
Streets, it is asserted that the same runs counter to the natural and
ordinary experience of things and event [sic], and raises a cloud of
doubt over the correctness of the lower Courts decision which are
based on the Prosecutions version of the incident. Since, according to
the prosecution, the Petitioner and the other Accused were armed with
high-powered firearms (armalite rifles and revolver); they waited
at the stated street corner for thirty (30) minutes; the stated street
corner was well lighted; accompanying them were the wife and two
(2) young daughters of Jose Talanquines, Jr; and they stood there
conversing with the group of Elston Saquian [a prosecution witness
who testified that he saw the petitioner and his co-accused waiting for
the victims[39]] and admitting that they were waiting for certain
persons who mauled Edzel Talanquines and Jonathan Bacabac.

In other words, the lower Courts gave credence to

an improbable scenario painting the Petitioner, known to the place as
a police officer, and co-accused to have recklessly and uncaringly
displayed, for all and sundry to see, their alleged criminal
intentions. It would indeed be the height of foolishness for them to be
by a well lighted street corner, perhaps even well traversed,
conspicuously fully armed, waiting for persons who were not even
sure would pass by such place, and apparently willing to admit to
other passers-by that they were indeed waiting for the persons who
mauled Edzel and Jonathan, and consequently give out the
 impression that they were intending to retaliate which is what the
lower Courts regrettably observed.

xxxx
Likewise, the presence of the wife and two (2) young
daughters of the accused Jose Talanquines, Jr. at the scene of the
alleged crimes, as testified to by the prosecution witnesses and
believed by the lower Courts, assumes importance in the matter of
determining which version of the incident is correct.

The Prosecution places the wife and the daughters with the
alleged fully armed Petitioner and Co-Accused at Sto. Domingo
Streets, also waiting during the same length of time as the men for the
(probable) arrival of the group of the victims. But such a scenario is,
likewise, unnatural. Because, will the male relatives unhesitatingly
expose their defenseless womenfolk to imminent
[40]
danger? (Citations omitted, emphasis in the original, and
underscoring supplied)

Petitioners argument that it is improbable for him and his co-accused to have
waited for the victims at a well-lighted street corner does not persuade. Crimes are
known to have been brazenly committed by perpetrators, undeterred by the
presence of onlookers or even of peace officers, completely impervious of the
inevitability of criminal prosecution and conviction.[41]

From the mode and manner in which the crimes were perpetrated, the
conduct of petitioner before, during, and after their commission,[42] and the
conditions attendant thereto,[43] conspiracy, which need not be proved by direct
evidence, is deduced.[44] Petitioners firing of his armalite could not have amounted
to none other than lending moral assistance to his co-accused, thereby indicating the
presence of conspiracy.[45]

As the appellate court observed which is quoted with approval:

In the present recourse, when informed that Jonathan and Edzel
were being manhandled and assaulted by male persons, Appellant
armed himself with an M-16 armalite. Jose Talanquines, Jr., the
father of Edzel, followed suit and armed himself with an M-16
armalite gun. Jesus armed himself with a revolver while Jonathan
armed himself with a piece of wood. Jonathan and Edzel were
nephews of the Appellant who resided in the house of Jose
Talanquines, Jr. All the Accused including the Appellant then
proceeded posthaste to the corner of M.H. del Pilar corner Sto.
Domingo Streets where the culprits would pass by and waited for
the advent of the culprits. Even as Hernani apologized for his and
his companions assault of Edzel and Jonathan, Jesus berated
Hernani and his companions. Almost simultaneously, the
Appellant fired his gun into the air as Jonathan lunged at Hernani
and his companions to hit them with the piece of wood. Almost
simultaneously, Jose Talaquines, Jr. fired his gun at Hernani and shot
Eduardo hitting them and, in the process, hitting his nephew, Jonathan
Bacabac. The Appellant did not lift a finger when Jose fired at and
shot Hernani and Eduardo. He stood by as Jose shot Hernani
anew when the latter on bended knees, raised his two (2) hands, in
surrender. The Appellant and the other Accused then fled from
the scene, with their respective firearms and weapons. The overt
act of the Accused and the Appellant in conjunto, constitute proof of
conspiracy.

The Appellant and Jose were armed with high-powered

guns. Jesus was armed with a revolver. The nature of the weapons
of the Accused evinced a common desire to do away with the
culprits, not merely to scare them.

What is outrageous is that the Appellant was a

policeman. He could very well have just arrested the culprits as
they sauntered by and brought them to the police station for the
requisite investigation and the institution of criminal complaints,
if warranted. He could have dissuaded Jose and Jesus and assured
them that the culprits will be duly investigated and charged if
warranted. The Appellant did not. He armed himself with an M-16
armalite x x x. [T]he three (3) positioned themselves at the corner of
M.H. del Pilar and Sto. Domingo Streets for the culprits to
arrive. Hernani and his companions were doomed. It may be true that
the Appellant did not aim his gun at the deceased but the same is peu
de chose. By his overt acts, in unison with the other Accused and his
kinship with Jonathan and Edzel, We are convinced that he conspired
with Jose Talanquines, Jr. and the other Accused to achieve a
common purpose to kill Hernani and Eduardo.[46] (Emphasis and
underscoring supplied)
 Petitioners failure to assist the victims after the shooting reinforces this
Courts appreciation of community of design between him and his co-accused to
harm the victims. That it was he who first officially reported the shooting to the
police station[47] does not make him any less a conspirator. Voluntary surrender and
non-flight do not conclusively prove innocence.[48] Besides, a conspirator who
wants to extricate himself from criminal liability usually performs an overt act to
dissociate or detach himself from the unlawful plan to commit the felony while the
commission of the felony is in progress.[49] In petitioners case, he reported the
shooting incident after it had already taken place. In legal contemplation, there was
no longer a conspiracy to be repudiated since it had already materialized.[50]

Contrary to petitioners assertion,[51] the appellate court did not err in

appreciating the presence of conspiracy despite its finding that there was no
evident premeditation. This Courts pronouncement that conspiracy presupposes the
existence of evident premeditation[52] does not necessarily imply that the converse
─ that evident premeditation presupposes the existence of a conspiracy ─ is true. In
any event, a link between conspiracy and evident premeditation is presumed only
where the conspiracy is directly established and not where conspiracy is only
implied, as in the present case.[53]

Neither did the appellate court err in finding the presence of

treachery. Treachery, under Article 14, paragraph 16 of the Revised Penal Code, is
present when the offender commits any of the crimes against the person,
employing means, methods, or forms in the execution thereof which tend directly
and specially to insure its execution, without risk to himself arising from the
defense which the offended party might make.

What is decisive in treachery is that the attack was executed in such a

manner as to make it impossible for the victim to retaliate.[54] In the case at bar,
petitioner, a policeman, and his co-accused were armed with two M-16 armalites
and a revolver. The victim and his companions were not armed.[55] The attack was
sudden and unexpected,[56] and the victim was already kneeling in surrender when
he was shot the second time. Clearly, the victim and his companion Eduardo had
no chance to defend themselves or retaliate.
 Petitioner nevertheless argues that he not being the trigger man, it is not
logical nor legal to hold him guilty of treachery.[57] This argument falls in the face
of the settled doctrine that once conspiracy is established, the act of one is the act
of all even if not all actually hit and killed the victim.[58]

As for petitioners invocation of the mitigating circumstance of immediate

vindication of a grave offense, it fails. For such mitigating circumstance to be
credited, the act should be, following Article 13, paragraph 5 of the Revised Penal
Code, committed in the immediate vindication of a grave offense to the one
committing the felony (delito), his spouse, ascendants, descendants, legitimate,
natural or adopted brothers or sisters, or relatives by affinity within the same
degree.[59] The offense committed on Edzel was hitting his ear with
a stick[60] (according to Jesus), a bamboo pole (according to Edzel).[61] By Edzels
own clarification, [he] was hit at [his] ear, not on [his] head.[62] That act would
certainly not be classified as grave offense. And Edzel is petitioners nephew,
hence, not a relative by affinity within the same degree contemplated in Article 13,
paragraph 5 of the Revised Penal Code.

WHEREFORE, the petition is DISMISSED and the appellate courts

decision is AFFIRMED.

Costs against petitioner.

SO ORDERED.

Case No. 87 – Circumstances affecting criminal liability

G.R. No. L-45100 October 26, 1936

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
EPIFANIO DIOKNO and ROMAN DIOKNO, defendants-appellants.

Ramon Diokno and Gabriel N. Trinidad for appellants.

Office of the Solicitor-General Hilado for appellee.
VILLA-REAL, J.:

Epifanio Diokno and Roman Diokno appeal to this court from the judgment of the Court of First
Instance of Laguna, the dispositive part of which reads as follows:

In view of the foregoing considerations, the court finds the accused Epifanio Diokno and
Roman Diokno guilty of the crime of murder, beyond a reasonable doubt, and sentences
each of them to reclusion perpetua, to indemnify jointly and severally the heirs of the
deceased in the sum of P1,000 and to pay the costs of the suit. It is so ordered.

In support of their appeal, the appellants assign the following alleged errors as committed by the
court a quo in its judgment in question, to wit:

1. The lower court erred in accepting Exhibit E as evidence.

2. The lower court erred in admitting Exhibit K as evidence.

3. The lower court erred in not acquitting the appellant Roman.

4. The lower court erred in sentencing the appellant Epifanio to reclusion perpetua.

The following facts have been proven beyond a reasonable doubt during the trial:

The deceased Yu Hiong was a vendor of sundry goods in Lucena, Tayabas. At about 7 o'clock in the
morning of January 4, 1935, Salome Diokno, to whom Yu Hiong was engaged for about a year,
invited the latter to go with her. Yu Hiong accepted the invitation but he told Salome that her father
was angry with him. Salome answered him: "No matter, I will be responsible." At about 6 o'clock in
the afternoon of said day, Yu Hiong and Salome Diokno took an automobile and went to the house
of Vicente Verina, Salome's cousin, in Pagbilao. As they found nobody in the house, they went on
their way up to San Pablo, Laguna. On January 5th or 6th of said year, Roman Diokno telegraphed
his father Epifanio Diokno, who was in Manila, informing him that Salome had eloped with the
Chinese Yu Hiong. On the morning of January 7, 1935, Epifanio Diokno and Roman Diokno went to
San Pablo, Laguna, in search of the elopers. Having been informed that the latter were stopping at
the house of Antonio Layco, they went there. Upon arriving near the house, they saw Yu Hiong
coming down the stairs. When Yu Hiong saw them, he ran upstairs and they pursued him. As the
Chinese found the door of the house locked, he shouted that it be opened for him. At that moment,
he was overtaken by the accused who carried knives locally known as balisong, of different sizes.
Yu Hiong fell on his knees and implored pardon. In that situation Roman Diokno stabbed him with
the knife in the back and later in the left side. Epifanio Diokno also stabbed him once. Yu Hiong fell
on the landing of the stairs in the balcony, and there he was again stabbed repeatedly. Then Roman
Diokno said: "Enough, father." Yu Hiong lost consciousness. Juan Alcantara, who lived on the same
street, Hermanos Belen, in front of Antonio Layco's house, saw the accused pursue Yu Hiong and
fired shots for the police to come. Upon hearing the shots, municipal policeman Francisco Curabo
appeared and found Yu Hiong pale and lying on the landing of the stairs. He then asked who had
wounded the Chinese and the accused Epifanio Diokno answered that it was he. The policeman
took the knife (Exhibit C) which Epifanio Diokno carried in his right hand and brought him to police
headquarters. Roman Diokno had left before the policeman arrived and he was not located until after
three days. The municipal president of San Pablo, Laguna, also went to the scene of the crime,
found the Chinese almost unconscious and questioned him, putting down his answers in Exhibit E.
The Chinese was brought to the provincial hospital of San Pablo where he was examined by Drs.
David Evangelista and Manuel Quisumbing, who found that he had five incised wounds in different
parts of the body, one of them at the back and about three and a half inches long, piercing the pleura
and penetrating the lower lobe of the right lung about an inch, which wound was necessarily mortal
and which caused the death of the victim. On January 8, 1935, while the said Chinese was in a
serious condition in the hospital, he made a statement telling how he was attacked by the accused
(Exhibit K).

The accused, testifying as witnesses in their own behalf, stated that they had not gone to San Pablo
together on the day in question; that when Roman Diokno arrived, his father Epifanio Diokno was
coming down the stairs of Antonio Layco's house with a knife in his hand; that Epifanio Diokno told
his son Roman to go home and tell their relatives what had happened; that when Epifanio Diokno
overtook Yu Hiong on the landing of the stairs of Antonio Layco's house, he asked Yu Hiong whether
he was willing to marry his daughter; that the Chinese answered him in the negative and at the same
time tried to take something from his pocket; that as Epifanio knew that Yu Hiong carried a revolver,
he feared the Chinese might harm him; he became obfuscated, drew his knife and knew not what
happened afterwards.

The first question to be decided in the present appeal is whether or not the court a quo erred in
admitting as evidence Exhibit E, consisting in the investigation conducted by the municipal president
of San Pablo in the same place where Yu Hiong had fallen a few minutes before, at about 1.30 p. m.
on January 7, 1935, and wherein Yu Hiong, answering the questions asked by said municipal
president, stated that it was Ramon Diokno and Epifanio Diokno who had wounded him.

It is argued by the defense that said document Exhibit E should not be admitted on the ground that
some words had been altered and because it has not been proven that declarant had a sense of
impending death.

It does not appear that said document was altered after it had been signed, but on the contrary,
municipal president Jacinto Peñaflor, upon being cross-examined by the defense, declared that he
neither erased any word nor put another in its place after said document had been finished.

The fact that Yu Hiong failed to state that he had given up all hope of life, in answering the municipal
president's questions, does not make his declaration inadmissible. It is enough if, from the
circumstances of the case, it can be inferred with certainty that such must have been his state of
mind (People vs. Chan Lin Wat, 50 Phil., 182). In the present case, Yu Hiong was semiconscious as
a result of the wounds received by him and, consequently, he could not have the hope to live when
he made his declaration immediately after he was mortally wounded. But even if the document
Exhibit E were not admissible as an ante mortem declaration, it is admissible as a part of the res
gestæbecause it was made under circumstances so proximate to the incident that it may be
considered as a part thereof. (People vs. Portento and Portento, 48 Phil., 971; People vs. Palamos,
49 Phil., 601.)

The first assignment of alleged error is, therefore, untenable.

With respect to the second assignment of alleged error consisting in that the court a quo erred in
admitting Exhibit K as an ante mortem declaration of Yu Hiong, because it does not appear that
when the declarant made it he was aware of impending death and that he did not die until three days
after making it, all that has been said relative to Exhibit E, which is the subject matter of the first
assignment of alleged error, may be repeated in connection with said Exhibit K, in the sense that it is
admissible as an ante mortem declaration. Furthermore, when the deceased made the declaration
Exhibit K, he complained of great difficulty in breathing and of being very ill. The fact that he did not
die until three days later neither implies that he had no sense of impending death when he made his
declaration because he did not improve thereafter but became worse until he died; nor detracts from
its character of an ante mortem declaration because what gives the declaration such character is the
declarant's conviction, upon making it, that he is not going to live (U. S. vs. Mallari, 29 Phil., 14).

The third assignment of alleged error consists in the failure of the court a quo to acquit the appellant,
Roman Diokno.

The testimony of the eyewitnesses Juan Alcantara and Antonio Layco corroborated by the different
dimensions of the wounds which, according to Dr. Manuel Quisumbing, were caused by two
instruments of different sizes, and the ante mortem declarations (Exhibits E and K) of the deceased,
leave no room for doubt that Roman Diokno cooperated with his father and stabbed the deceased
Yu Hiong with a knife in different parts of the body. Furthermore, the deceased stated in his ante
mortem declaration (Exhibit K) that it was Roman Diokno who inflicted the necessarily mortal wound
in his back, which caused his death.

We find the fourth assignment of alleged error well founded. The circumstance of abuse of superior
strength, qualifying the crime of murder, which the trial court found to have been proven, has not
been established beyond a reasonable doubt. In the case of United States vs. Devela (3 Phil., 625),
this court said that "the mere fact that the number of the assailants is superior to that of those
attacked by them is not sufficient to constitute the aggravating circumstance of abuse of superiority."
In this case we have the photographs of the body of the deceased (Exhibits D and D-1) showing that
he had a strong constitution: but there is no evidence of the physical constitution of the accused
Epifanio Diokno and Roman Diokno. Therefore, we cannot determine whether or not said accused
were physically stronger than the deceased and whether or not they abused such superiority.

Neither does this court find the existence of the other circumstance qualifying murder, that is, evident
premeditation, proven beyond a reasonable doubt because, even assuming that both the accused
went to San Pablo, Laguna, each carrying the knife used by him in attacking Yu Hiong, it being
customary for the people of said province to carry it, it cannot be inferred with certainty from the
mere fact that they carried knives that their intention in going to San Pablo was to look for the
deceased in order to kill him. In order that premeditation may be considered either as an aggravating
circumstance or as a qualifying circumstance, it must be evident, that is, the intention to kill must be
manifest and it must have been planned in the mind of the offender and carefully meditated. It is not
enough that it arose at the moment of the aggression.

Therefore, there having been neither abuse of superior strength nor evident premeditation, the crime
committed by the accused is simple homicide. lâwphi 1.nêt

The presence of the fifth mitigating circumstance of article 13 of the Revised Penal Code, that is,
immediate vindication of a grave offense to said accused, may be taken into consideration in favor of
the two accused, because although the elopement took place on January 4, 1935, and the
aggression on the 7th of said month and year, the offense did not cease while Salome's
whereabouts remained unknown and her marriage to the deceased unlegalized. Therefore, there
was no interruption from the time the offense was committed to the vindication thereof. Our opinion
on this point is based on the fact that the herein accused belong to a family of old customs to whom
the elopement of a daughter with a man constitutes a grave offense to their honor and causes
disturbance of the peace and tranquility of the home and at the same time spreads uneasiness and
anxiety in the minds of the members thereof.

The presence of the sixth mitigating circumstance of said article 13, consisting in having acted upon
an impulse so powerful as naturally to have produced passion or ofuscation, may also be taken into
consideration in favor of the accused. The fact that the accused saw the deceased run upstairs
when he became aware of their presence, as if he refused to deal with them after having gravely
offended them, was certainly a stimulus strong enough to produce in their mind a fit of passion which
blinded them and led them to commit the crime with which they are charged, as held by the
Supreme Court of Spain in similar cases in its decisions of February 3, 1888, July 9, 1898, February
8, 1908, May 25, 1910, July 3, 1909, and in other more recent ones.

The seventh circumstance of article 13 of the Revised Penal Code, consisting in having surrendered
himself immediately to the agents of persons in authority, should also be taken into consideration in
favor of the accused Epifanio Diokno.

In view of the foregoing considerations, this court concludes that the accused are guilty beyond a
reasonable doubt of the crime of homicide defined and punished in article 249 of the Revised Penal
Code, the penalty prescribed therein being reclusion temporal in its full extent. Three mitigating
circumstances must be taken into consideration in favor of the accused Epifanio Diokno and two in
favor of the accused Roman Diokno, with no aggravating circumstance, thus authorizing the
imposition of the penalty next lower to that prescribed by law (reclusion temporalin its full extent),
or prision mayor in its full extent, in the period that this court deems applicable, which is the medium
period in this case, in accordance with the provisions of article 64, rule 5, that is eight years and one
day ofprision mayor.

Both accused should be granted the benefits of the indeterminate sentence provided in Act No.
4103, as amended by Act No. 4225, which prescribes a penalty the minimum of which shall be taken
from that next lower to prision mayor, or prision correccional of from six months and one day to six
years. Taking into account the circumstances of the case, the indeterminate penalty to which each of
said accused must be sentenced is fixed at from two years and one day of prision correccional to
eight years and one day of prision mayor, crediting each with one-half of the time during which they
have undergone preventive imprisonment (art. 29, Revised Penal Code).

Wherefore, this court declares the accused Epifanio Diokno and Roman Diokno guilty of the crime of
homicide and sentences each of them to an indeterminate penalty from two years and one day
of prision correccional to eight years and one day of prision mayor, crediting them with one-half of
the time during which they have undergone preventive imprisonment, and to indemnify the heirs of
the deceased in the sum of P1,000, with the costs of both instances. 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 Cleopatras face which made
her vision blurred. She heard somebody say that it was 1:30. After that, she
[7]

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 Cleopatras clothes were inverted and she smelled bad. She woke
up Cleopatras brothers and cousins. They asked her what happened.
[9]

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 Villaseor.
In his Medico-Legal Report, Dr. Villaseor 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 3 of the left thigh, measuring 2x1cm, 13cm from
rd

the anterior midline.

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

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 3 of the right arm, measuring 5x3cm, 3cm from the anterior
rd

midline.

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

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 oclock and
deep fresh laceration at 6 oclock 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. Villaseor found cigarette burns and seminal
stains, as well as stains of blood on the panties. The Medico-Legal Report
[12] [13]

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. She likewise executed
[15]

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. On July 26, 1998, Cleopatra was summoned to the police station to
[17]

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. Cleopatra recognized [18]

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. On the same day, Cleopatra gave a supplemental statement to the
[20]

police, confirming her identification of accused-appellant as one of her

rapists. [21]

Inquest proceedings followed in due course. On July 27, 1998, formal

[22]

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 14 day of July, 1998, in the City of Baguio, Philippines, and
th

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-
appellants brother-in-law arrived a little before midnight, after which his guests
left. When asked about the charges of rape against him, he denied the
[24]

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. Her testimony was corroborated by her boyfriend, Ronaldo T. Valdez,
[26]

who also testified for the defense. [27]

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

I

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 complainants

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. There was no suggestion from the
[31]

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, complainants 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. Furthermore, the contusions found on her body were said to be
[32]

caused by a blunt instrument like a closed fist. This confirms her testimony
[33]

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. The findings on her genitals --
[34]

- 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. Finally, the presence of spermatozoa further confirms that
[35]

complainant recently had sexual intercourse. [36]

In the face of complainants positive and categorical declarations that

accused-appellant was one of her rapists, accused-appellants 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. In the case at bar,
[38]

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-appellants 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. Hence, there being no aggravating circumstance that may be
[44]

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 complainants
emotional and physical suffering, as narrated in her testimony. Notably, the
[45]

prosecution successfully proved that complainant lost her virginity during the
rape. As she narrated, virginity is a highly regarded virtue among the people
[46]

of Kalinga. [47]

However, the trial court failed to award civil indemnity to the complainant.
We have ruled that if rape 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. For the other three counts of
[48]

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. Complainant testified that
[50]

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. These [51]

rituals were intended for complainants safety and to call on the tribes spirits so
that no more violence or misfortune may befall her. The grand total of all
[52]

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, the amount awarded by the trial court.
[53]

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.