[G.R. No. 12155. February 2, 1917.

THE UNITED STATES, Plaintiff-Appellee, v. PROTASIO EDUAVE, Defendant-Appellant.

Manuel Roxas for Appellant.

Attorney-General Avancena for Appellee.

SYLLABUS
1. CRIMINAL LAW; FRUSTRATED CRIMES. — A felony is frustrated when the offender performs all the acts of execution
which should produce the felony as a consequence, but which, nevertheless, do not produce it by reason of causes
independent of the will of the perpetrator.

2. ID.; ATTEMPTED CRIMES. — There is an attempt when the offender commences the commission of the felony directly
by overt acts, and does not perform all the acts of execution which constitute the felony by reason of some cause or
accident other than his own voluntary desistance.

3. ID.; ID. — In case of an attempt the offender never passes the subjective phase of the offense. He is interrupted and
compelled to desist by the intervention of outside causes before the subjective phase is passed.

4. ID.; FRUSTRATED CRIMES. — In case of frustrated crimes the subjective phase is completely passed. Subjectively
the crime is complete. Nothing interrupted the offender while he was passing through the subject phase. The crime,
however, is not consummated by reason of the intervention of causes independent of the will of the offender. He did all
that was necessary to commit the crime. If the crime did not result as a consequence it was due to something beyond his
control.

5. ID.; ID.; SUBJECTIVE PHASE. — The subjective phase is that portion of the acts constituting the crime included
between the act which begins the commission of the crime and the last act performed by the offender which, with the prior
acts, should result in the consummated crime. From that time forward the phase is objective. It may also be said to be that
period occupied by the acts of the offender over which he has control -- that period between the point where he begins
and the point where he voluntarily desists. If between these two points the offender is stopped by any cause outside of his
own voluntary desistance, the subjective phase has not been passed and it is attempt. If he is not so stopped but
continues until he performs the last act, it is frustrated.

DECISION

MORELAND, J. :

We believe that the accused is guilty of frustrated murder.

We are satisfied that there was intent to kill in this case. A deadly weapon was used. The blow was directed toward a vital
part of the body. The aggressor stated his purpose to kill, thought he had killed, and threw the body into the bushes.
When he gave himself up he declared that he had killed the complainant.

There was alevosia to qualify the crime as murder if death had resulted. The accused rushed upon the girl suddenly and Commented [A1]: ALEVOSIA – treachery
struck her from behind, in part at least, with a sharp bolo, producing a frightful gash in the lumbar region and slightly to the TREACHERY
side eight and one-half inches long and two inches deep, severing all of the muscles and tissues of that part. – harmful things that are done secretly to a friend or your own
country
- an act of harming someone whi trusts you
The motive of the crime was that the accused was incensed at the girl for the reason that she had theretofore charged him
criminally before the local officials with having raped her and with being the cause of her pregnancy. He was her mother’s
querido and was living with her as such at the time the crime here charged was committed.

That the accused is guilty of some crime is not denied. The only question is the precise crime of which he should be
convicted. It is contended, in the first place, that, if death had resulted, the crime would not have been murder but
homicide, and in the second place, that it is attempted and not frustrated homicide.

As to the first contention, we are of the opinion that the crime committed would have been murder if the girl had been
killed. It is qualified by the circumstance of alevosia, the accused making a sudden attack upon his victim from the rear, or
partly from the rear, and dealing her a terrible blow in the back and side with his bolo. Such an attack necessitates the
finding that it was made treacherously; and that being so the crime would have been qualified as murder if death had
resulted.

As to the second contention, we are of the opinion that the crime was frustrated and not attempted murder. Article 3 of the
Penal Code defines a frustrated felony as follows:jgc:chanrobles.com.ph

"A felony is frustrated when the offender performs all the acts of execution which should produce the felony as a
consequence, but which, nevertheless, do not produce it by reason of causes independent of the will of the
perpetrator."cralaw virtua1aw library

An attempted felony is defined thus:jgc:chanrobles.com.ph

"There is an attempt when the offender commences the commission of the felony directly by overt acts, and does not
perform all the acts of execution which constitute the felony by reason of some cause or accident other than his own
voluntarily desistance."cralaw virtua1aw library

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

To put it in another way, in case of an attempt the offender never passes the subjective phase of the offense. he is
interrupted and compelled to desist by the intervention of outside causes before the subjective phase is passed.

On the other hand, in case of frustrated crimes the subjective phase is completely passed. Subjectively the crime is
complete. Nothing interrupted the offender while he was passing through the subjective phase. The crime, however, is not
consummated by reason of the intervention of causes independent of the will of the offender. he did all that was
necessary to commit the crime. If the crime did not result as a consequence it was due to something beyond his control.

The subjective phase is that portion of the acts constituting the crime included between the act which begins the
commission of the crime and the last act performed by the offender which, with the prior acts, should result in the
consummated crime. From that time forward the phase is objective. It may also be said to be that period occupied by the
acts of the offender over which he has control — that period between the point where he begins and the point where he
voluntarily desists. If between these two points the offender is stopped by reason of any cause outside of his own
voluntary desistance, the subjective phase has not been passed and it is an attempt. If he is not so stopped but continues
until he performs the last act, it is frustrated.

Then the case before us is frustrated is clear.

The penalty should have been thirteen years of cadena temporal there being neither aggravating nor mitigating
circumstance. As so modified, the judgment is affirmed with costs. So ordered.

Torres and Araullo, JJ., concur.

Carson and Trent, JJ., concur in the result.

 EN BANC

ARISTOTEL VALENZUELA y G. R. No. 160188

NATIVIDAD,
Petitioner, Present:

PUNO, C.J.,
QUISUMBING,
SANTIAGO,
- versus - GUTIERREZ,
CARPIO,
MARTINEZ,
CORONA,
CARPIO MORALES,
AZCUNA,
TINGA,
CHICO-NAZARIO,
GARCIA,
VELASCO, and
PEOPLE OF THE PHILIPPINES NACHURA, JJ.
and HON. COURT OF APPEALS,
Respondents.
Promulgated:

June 21, 2007

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

DECISION

TINGA, J.:

This case aims for prime space in the firmament of our criminal law jurisprudence. Petitioner effectively concedes having
performed the felonious acts imputed against him, but instead insists that as a result, he should be adjudged guilty of
frustrated theft only, not the felony in its consummated stage of which he was convicted. The proposition rests on a
common theory expounded in two well-known decisions[1]rendered decades ago by the Court of Appeals, upholding the
existence of frustrated theft of which the accused in both cases were found guilty. However, the rationale behind the
rulings has never been affirmed by this Court.

As far as can be told,[2] the last time this Court extensively considered whether an accused was guilty of frustrated
or consummated theft was in 1918, in People v. Adiao.[3] A more cursory treatment of the question was followed in 1929,
in People v. Sobrevilla,[4] and in 1984, in Empelis v. IAC.[5] This petition now gives occasion for us to finally and fully
measure if or how frustrated theft is susceptible to commission under the Revised Penal Code.

I.

The basic facts are no longer disputed before us. The case stems from an Information [6] charging petitioner Aristotel
Valenzuela (petitioner) and Jovy Calderon (Calderon) with the crime of theft. On 19 May 1994, at around 4:30 p.m.,
petitioner and Calderon were sighted outside the Super Sale Club, a supermarket within the ShoeMart (SM) complex
along North EDSA, by Lorenzo Lago (Lago), a security guard who was then manning his post at the open parking area of
the supermarket. Lago saw petitioner, who was wearing an identification card with the mark Receiving Dispatching Unit
(RDU), hauling a push cart with cases of detergent of the well-known Tide brand. Petitioner unloaded these cases in an
open parking space, where Calderon was waiting. Petitioner then returned inside the supermarket, and after five (5)
minutes, emerged with more cartons of Tide Ultramatic and again unloaded these boxes to the same area in the open
parking space.[7]
 Thereafter, petitioner left the parking area and haled a taxi. He boarded the cab and directed it towards the
parking space where Calderon was waiting. Calderon loaded the cartons of Tide Ultramatic inside the taxi, then boarded
the vehicle. All these acts were eyed by Lago, who proceeded to stop the taxi as it was leaving the open parking area.
When Lago asked petitioner for a receipt of the merchandise, petitioner and Calderon reacted by fleeing on foot, but Lago
fired a warning shot to alert his fellow security guards of the incident. Petitioner and Calderon were apprehended at the
scene, and the stolen merchandise recovered.[8] The filched items seized from the duo were four (4) cases of Tide
Ultramatic, one (1) case of Ultra 25 grams, and three (3) additional cases of detergent, the goods with an aggregate value
of P12,090.00.[9]

Petitioner and Calderon were first brought to the SM security office before they were transferred on the same day to the
Baler Station II of the Philippine National Police, Quezon City, for investigation. It appears from the police investigation
records that apart from petitioner and Calderon, four (4) other persons were apprehended by the security guards at the
scene and delivered to police custody at the Baler PNP Station in connection with the incident. However, after the matter
was referred to the Office of the Quezon City Prosecutor, only petitioner and Calderon were charged with theft by the
Assistant City Prosecutor, in Informations prepared on 20 May 1994, the day after the incident.[10]

After pleading not guilty on arraignment, at the trial, petitioner and Calderon both claimed having been innocent
bystanders within the vicinity of the Super Sale Club on the afternoon of 19 May 1994 when they were haled by Lago and
his fellow security guards after a commotion and brought to the Baler PNP Station. Calderon alleged that on the afternoon
of the incident, he was at the Super Sale Club to withdraw from his ATM account, accompanied by his neighbor, Leoncio
Rosulada.[11] As the queue for the ATM was long, Calderon and Rosulada decided to buy snacks inside the supermarket.
It was while they were eating that they heard thegunshot fired by Lago, leading them to head out of the building to check
what was transpiring. As they were outside, they were suddenly grabbed by a security guard, thus commencing their
detention.[12] Meanwhile, petitioner testified during trial that he and his cousin, a Gregorio Valenzuela, [13] had been at the
parking lot, walking beside the nearby BLISS complex and headed to ride a tricycle going to Pag-asa, when they saw the
security guard Lago fire a shot. The gunshot caused him and the other people at the scene to start running, at which point
he was apprehended by Lago and brought to the security office. Petitioner claimed he was detained at the security office
until around 9:00 p.m., at which time he and the others were brought to the Baler Police Station. At the station, petitioner
denied having stolen the cartons of detergent, but he was detained overnight, and eventually brought to the prosecutors
office where he was charged with theft.[14] During petitioners cross-examination, he admitted that he had been employed
as a bundler of GMS Marketing, assigned at the supermarket though not at SM. [15]

In a Decision[16] promulgated on 1 February 2000, the Regional Trial Court (RTC) of Quezon City, Branch 90, convicted
both petitioner and Calderon of the crime of consummated theft. They were sentenced to an indeterminate prison term of
two (2) years of prision correccional as minimum to seven (7) years of prision mayor as maximum.[17] The RTC found
credible the testimonies of the prosecution witnesses and established the convictions on the positive identification of the
accused as perpetrators of the crime.

Both accused filed their respective Notices of Appeal,[18] but only petitioner filed a brief[19] with the Court of
Appeals, causing the appellate court to deem Calderons appeal as abandoned and consequently dismissed. Before the
Court of Appeals, petitioner argued that he should only be convicted of frustrated theft since at the time he was
apprehended, he was never placed in a position to freely dispose of the articles stolen.[20] However, in its Decision
dated 19 June 2003,[21] the Court of Appeals rejected this contention and affirmed petitioners conviction. [22]Hence the
present Petition for Review,[23] which expressly seeks that petitioners conviction be modified to only of Frustrated Theft. [24]

Even in his appeal before the Court of Appeals, petitioner effectively conceded both his felonious intent and his actual
participation in the theft of several cases of detergent with a total value of P12,090.00 of which he was charged.[25] As
such, there is no cause for the Court to consider a factual scenario other than that presented by the prosecution, as
affirmed by the RTC and the Court of Appeals. The only question to consider is whether under the given facts, the theft
should be deemed as consummated or merely frustrated.

II.

In arguing that he should only be convicted of frustrated theft, petitioner cites[26]two decisions rendered many years ago by
the Court of Appeals: People v. Dio[27]and People v. Flores.[28] Both decisions elicit the interest of this Court, as they
modified trial court convictions from consummated to frustrated theft and involve a factual milieu that bears similarity to Commented [A2]: MILIEU - The physical or social setting in
the present case. Petitioner invoked the same rulings in his appeal to the Court of Appeals, yet the appellate court did not which people live or in which something happens or develops
expressly consider the import of the rulings when it affirmed the conviction.

It is not necessary to fault the Court of Appeals for giving short shrift to the Dio and Flores rulings since they have
not yet been expressly adopted as precedents by this Court. For whatever reasons,the occasion to define or debunk the
crime of frustrated theft has not come to pass before us. Yet despite the silence on our part, Dio and Flores have attained
a level of renown reached by very few other appellate court rulings. They are comprehensively discussed in the most
popular of our criminal law annotations,[29]and studied in criminal law classes as textbook examples of frustrated crimes or
even as definitive of frustrated theft.

More critically, the factual milieu in those cases is hardly akin to the fanciful scenarios that populate criminal law
exams more than they actually occur in real life. Indeed, if we finally say that Dio and Flores are doctrinal, such conclusion
could profoundly influence a multitude of routine theft prosecutions, including commonplace shoplifting. Any scenario that
involves the thief having to exit with the stolen property through a supervised egress, such as a supermarket checkout
counter or a parking area pay booth, may easily call for the application of Dio and Flores. The fact that lower courts have
not hesitated to lay down convictions for frustrated theft further validates that Dio and Flores and the theories offered
therein on frustrated theft have borne some weight in our jurisprudential system. The time is thus ripe for us to examine
whether those theories are correct and should continue to influence prosecutors and judges in the future.

III.

To delve into any extended analysis of Dio and Flores, as well as the specific issues relative to frustrated theft, it
is necessary to first refer to the basic rules on the three stages of crimes under our Revised Penal Code.[30]

Article 6 defines those three stages, namely the consummated, frustrated and attempted felonies. A felony is
consummated when all the elements necessary for its execution and accomplishment are present. It is frustrated when
the offender performs all the acts of execution which would produce the felony as a consequence but which, nevertheless,
do not produce it by reason of causes independent of the will of the perpetrator. Finally, it is attempted when the offender
commences the commission of a felony directly by overt acts, and does not perform all the acts of execution which should
produce the felony by reason of some cause or accident other than his own spontaneous desistance.

Each felony under the Revised Penal Code has a subjective phase, or that portion of the acts constituting the crime
included between the act which begins the commission of the crime and the last act performed by the offender which, with
prior acts, should result in the consummated crime.[31] After that point has been breached, the subjective phase ends and
the objective phase begins. [32] It has been held that if the offender never passes the subjective phase of the offense, the
crime is merely attempted.[33] On the other hand, the subjective phase is completely passed in case of frustrated crimes,
for in such instances, [s]ubjectively the crime is complete.[34]

Truly, an easy distinction lies between consummated and frustrated felonies on one hand, and attempted felonies
on the other. So long as the offender fails to complete all the acts of execution despite commencing the commission of a
felony, the crime is undoubtedly in the attempted stage. Since the specific acts of execution that define each crime under
the Revised Penal Code are generally enumerated in the code itself, the task of ascertaining whether a crime is attempted
only would need to compare the acts actually performed by the accused as against the acts that constitute the felony
under the Revised Penal Code.

In contrast, the determination of whether a crime is frustrated or consummated necessitates an initial concession that all
of the acts of execution have been performed by the offender. The critical distinction instead is whether the felony itself
was actually produced by the acts of execution. The determination of whether the felony was produced after all the acts of
execution had been performed hinges on the particular statutory definition of the felony. It is the statutory definition that
generally furnishes the elements of each crime under the Revised Penal Code, while the elements in turn unravel the
particular requisite acts of execution and accompanying criminal intent.

The long-standing Latin maxim actus non facit reum, nisi mens sit rea supplies an important characteristic of a crime, that
ordinarily, evil intent must unite with an unlawful act for there to be a crime, and accordingly, there can be no crime when
the criminal mind is wanting.[35] Accepted in this jurisdiction as material in crimes mala in se,[36] mens rea has been
defined before as a guilty mind, a guilty or wrongful purpose or criminal intent,[37] and essential for criminal liability.[38] It
follows that the statutory definition of our mala in se crimes must be able to supply what the mens rea of the crime is, and
indeed the U.S. Supreme Court has comfortably held that a criminal law that contains no mens rea requirement infringes
on constitutionally protected rights. [39] The criminal statute must also provide for the overt acts that constitute the crime.
For a crime to exist in our legal law, it is not enough that mens rea be shown; there must also be an actus reus.[40]

It is from the actus reus and the mens rea, as they find expression in the criminal statute, that the felony is
produced. As a postulate in the craftsmanship of constitutionally sound laws, it is extremely preferable that the language
 of the law expressly provide when the felony is produced. Without such provision, disputes would inevitably ensue on the
elemental question whether or not a crime was committed, thereby presaging the undesirable and legally dubious set-up
under which the judiciary is assigned the legislative role of defining crimes. Fortunately, our Revised Penal Code does not
suffer from such infirmity. From the statutory definition of any felony, a decisive passage or term is embedded which
attests when the felony is produced by the acts of execution. For example, the statutory definition of murder or homicide
expressly uses the phrase shall kill another, thus making it clear that the felony is produced by the death of the victim, and
conversely, it is not produced if the victim survives.

We next turn to the statutory definition of theft. Under Article 308 of the Revised Penal Code, its elements are spelled out
as follows:

Art. 308. Who are liable for theft. Theft is committed by any person who, with intent to gain but without
violence against or intimidation of persons nor force upon things, shall take personal property of another without
the latters consent.
Theft is likewise committed by:
1. Any person who, having found lost property, shall fail to deliver the same to the local authorities or to its owner;
2. Any person who, after having maliciously damaged the property of another, shall remove or make use of the
fruits or object of the damage caused by him; and
3. Any person who shall enter an inclosed estate or a field where trespass is forbidden or which belongs to
another and without the consent of its owner, shall hunt or fish upon the same or shall gather cereals, or other
forest or farm products.

Article 308 provides for a general definition of theft, and three alternative and highly idiosyncratic means by which theft
may be committed.[41] In the present discussion, we need to concern ourselves only with the general definition since it was
under it that the prosecution of the accused was undertaken and sustained. On the face of the definition, there is only one
operative act of execution by the actor involved in theft ─ the taking of personal property of another. It is also clear from
the provision that in order that such taking may be qualified as theft, there must further be present the descriptive
circumstances that the taking was with intent to gain; without force upon things or violence against or intimidation of
persons; and it was without the consent of the owner of the property.

Indeed, we have long recognized the following elements of theft as provided for in Article 308 of the Revised
Penal Code, namely: (1) that there be taking of personal property; (2) that said property belongs to another; (3) that the
taking be done with intent to gain; (4) that the taking be done without the consent of the owner; and (5) that the taking be
accomplished without the use of violence against or intimidation of persons or force upon things. [42]

In his commentaries, Judge Guevarra traces the history of the definition of theft, which under early Roman law as
defined by Gaius, was so broad enough as to encompass any kind of physical handling of property belonging to another
against the will of the owner,[43] a definition similar to that by Paulus that a thief handles (touches, moves) the property of
another.[44] However, with the Institutes of Justinian, the idea had taken hold that more than mere physical handling, there
must further be an intent of acquiring gain from the object, thus: [f]urtum est contrectatio rei fraudulosa, lucri faciendi
causa vel ipsius rei, vel etiam usus ejus possessinisve.[45] This requirement of animo lucrandi, or intent to gain, was
maintained in both the Spanish and Filipino penal laws, even as it has since been abandoned in Great Britain.[46]

In Spanish law, animo lucrandi was compounded with apoderamiento, or unlawful taking, to characterize theft.
Justice Regalado notes that the concept of apoderamiento once had a controversial interpretation and application.
Spanish law had already discounted the belief that mere physical taking was constitutive of apoderamiento, finding that it
had to be coupled with the intent to appropriate the object in order to constitute apoderamiento; and to appropriate means
to deprive the lawful owner of the thing.[47] However, a conflicting line of cases decided by the Court of Appeals ruled,
alternatively, that there must be permanency in the taking[48] or an intent to permanently deprive the owner of the stolen
property;[49]or that there was no need for permanency in the taking or in its intent, as the mere temporary possession by
the offender or disturbance of the proprietary rights of the owner already constituted apoderamiento.[50] Ultimately, as
Justice Regalado notes, the Court adopted the latter thought that there was no need of an intent to permanently deprive
the owner of his property to constitute an unlawful taking. [51]

So long as the descriptive circumstances that qualify the taking are present, including animo lucrandi and apoderamiento,
the completion of the operative act that is the taking of personal property of another establishes, at least, that the
transgression went beyond the attempted stage. As applied to the present case, the moment petitioner obtained physical
possession of the cases of detergent and loaded them in the pushcart, such seizure motivated by intent to gain,
completed without need to inflict violence or intimidation against persons nor force upon things, and accomplished without
the consent of the SM Super Sales Club, petitioner forfeited the extenuating benefit a conviction for only attempted theft
would have afforded him.

On the critical question of whether it was consummated or frustrated theft, we are obliged to apply Article 6 of the Revised
Penal Code to ascertain the answer. Following that provision, the theft would have been frustrated only, once the acts
committed by petitioner, if ordinarily sufficient to produce theft as a consequence, do not produce [such theft] by reason of
causes independent of the will of the perpetrator. There are clearly two determinative factors to consider: that the felony is
not produced, and that such failure is due to causes independent of the will of the perpetrator. The second factor
ultimately depends on the evidence at hand in each particular case. The first, however, relies primarily on a doctrinal
definition attaching to the individual felonies in the Revised Penal Code [52] as to when a particular felony is not produced,
despite the commission of all the acts of execution.

So, in order to ascertain whether the theft is consummated or frustrated, it is necessary to inquire as to how exactly is the
felony of theft produced. Parsing through the statutory definition of theft under Article 308, there is one apparent answer
provided in the language of the law that theft is already produced upon the tak[ing of] personal property of another without
the latters consent.

U.S. v. Adiao[53] apparently supports that notion. Therein, a customs inspector was charged with theft after he abstracted
a leather belt from the baggage of a foreign national and secreted the item in his desk at the Custom House. At no time
was the accused able to get the merchandise out of the Custom House, and it appears that he was under observation
during the entire transaction.[54] Based apparently on those two circumstances, the trial court had found him guilty,
instead, of frustrated theft. The Court reversed, saying that neither circumstance was decisive, and holding instead that
the accused was guilty of consummated theft, finding that all the elements of the completed crime of theft are
present.[55] In support of its conclusion that the theft was consummated, the Court cited three (3) decisions of the Supreme
Court of Spain, the discussion of which we replicate below:

The defendant was charged with the theft of some fruit from the land of another. As he was in the act of taking the
fruit[,] he was seen by a policeman, yet it did not appear that he was at that moment caught by the policeman but
sometime later. The court said: "[x x x] The trial court did not err [x x x ] in considering the crime as that of
consummated theft instead of frustrated theft inasmuch as nothing appears in the record showing that the
policemen who saw the accused take the fruit from the adjoining land arrested him in the act and thus prevented
him from taking full possession of the thing stolen and even its utilization by him for an interval of time." (Decision
of the Supreme Court of Spain, October 14, 1898.)

Defendant picked the pocket of the offended party while the latter was hearing mass in a church. The
latter on account of the solemnity of the act, although noticing the theft, did not do anything to prevent it.
Subsequently, however, while the defendant was still inside the church, the offended party got back the money
from the defendant. The court said that the defendant had performed all the acts of execution and considered the
theft as consummated. (Decision of the Supreme Court of Spain, December 1, 1897.)

The defendant penetrated into a room of a certain house and by means of a key opened up a case, and
from the case took a small box, which was also opened with a key, from which in turn he took a purse containing
461 reales and 20 centimos, and then he placed the money over the cover of the case; just at this moment he
was caught by two guards who were stationed in another room near-by. The court considered this as
consummated robbery, and said: "[x x x] The accused [x x x] having materially taken possession of the money
from the moment he took it from the place where it had been, and having taken it with his hands with intent to
appropriate the same, he executed all the acts necessary to constitute the crime which was thereby produced;
only the act of making use of the thing having been frustrated, which, however, does not go to make the elements
of the consummated crime." (Decision of the Supreme Court of Spain, June 13, 1882.)[56]

It is clear from the facts of Adiao itself, and the three (3) Spanish decisions cited therein, that the criminal actors in all
these cases had been able to obtain full possession of the personal property prior to their apprehension. The interval
between the commission of the acts of theft and the apprehension of the thieves did vary, from sometime later in the 1898
decision; to the very moment the thief had just extracted the money in a purse which had been stored as it was in the
1882 decision; and before the thief had been able to spirit the item stolen from the building where the theft took place, as
had happened in Adiao and the 1897 decision. Still, such intervals proved of no consequence in those cases, as it was
ruled that the thefts in each of those cases was consummated by the actual possession of the property belonging to
another.
In 1929, the Court was again confronted by a claim that an accused was guilty only of frustrated rather than consummated
theft. The case is People v. Sobrevilla,[57]where the accused, while in the midst of a crowd in a public market, was already
able to abstract a pocketbook from the trousers of the victim when the latter, perceiving the theft, caught hold of the
[accused]s shirt-front, at the same time shouting for a policeman; after a struggle, he recovered his pocket-book and let go
of the defendant, who was afterwards caught by a policeman. [58] In rejecting the contention that only frustrated theft was
established, the Court simply said, without further comment or elaboration:

We believe that such a contention is groundless. The [accused] succeeded in taking the pocket-book, and
that determines the crime of theft. If the pocket-book was afterwards recovered, such recovery does not affect
the [accuseds] criminal liability, which arose from the [accused] having succeeded in taking the pocket-
book.[59]
If anything, Sobrevilla is consistent with Adiao and the Spanish Supreme Court cases cited in the latter, in that the fact
that the offender was able to succeed in obtaining physical possession of the stolen item, no matter how momentary, was
able to consummate the theft.

Adiao, Sobrevilla and the Spanish Supreme Court decisions cited therein contradict the position of petitioner in
this case. Yet to simply affirm without further comment would be disingenuous, as there is another school of thought on
when theft is consummated, as reflected in the Dio and Flores decisions.

Dio was decided by the Court of Appeals in 1949, some 31 years after Adiao and 15 years before Flores. The
accused therein, a driver employed by the United States Army, had driven his truck into the port area of the South Harbor,
to unload a truckload of materials to waiting U.S. Army personnel. After he had finished unloading, accused drove away
his truck from the Port, but as he was approaching a checkpoint of the Military Police, he was stopped by an M.P. who
inspected the truck and found therein three boxes of army rifles. The accused later contended that he had been stopped
by four men who had loaded the boxes with the agreement that they were to meet him and retrieve the rifles after he had
passed the checkpoint. The trial court convicted accused of consummated theft, but the Court of Appeals modified the
conviction, holding instead that only frustrated theft had been committed.

In doing so, the appellate court pointed out that the evident intent of the accused was to let the boxes of rifles
pass through the checkpoint, perhaps in the belief that as the truck had already unloaded its cargo inside the depot, it
would be allowed to pass through the check point without further investigation or checking.[60] This point was deemed
material and indicative that the theft had not been fully produced, for the Court of Appeals pronounced that the fact
determinative of consummation is the ability of the thief to dispose freely of the articles stolen, even if it were more or less
momentary.[61] Support for this proposition was drawn from a decision of the Supreme Court of Spain dated 24 January
1888 (1888 decision), which was quoted as follows:

Considerando que para que el apoderamiento de la cosa sustraida sea determinate de la consumacion del
delito de hurto es preciso que so haga en circunstancias tales que permitan al sustractor la libre disposicion de
aquella, siquiera sea mas o menos momentaneamente, pues de otra suerte, dado el concepto del delito de hurto, no
puede decirse en realidad que se haya producido en toda su extension, sin materializar demasiado el acto de tomar
la cosa ajena.[62]

Integrating these considerations, the Court of Appeals then concluded:

This court is of the opinion that in the case at bar, in order to make the booty subject to the control and
disposal of the culprits, the articles stolen must first be passed through the M.P. check point, but since the offense
was opportunely discovered and the articles seized after all the acts of execution had been performed, but before
the loot came under the final control and disposal of the looters, the offense can not be said to have been fully
consummated, as it was frustrated by the timely intervention of the guard. The offense committed, therefore, is
that of frustrated theft.[63]

Dio thus laid down the theory that the ability of the actor to freely dispose of the items stolen at the time of
apprehension is determinative as to whether the theft is consummated or frustrated. This theory was applied again by the
Court of Appeals some 15 years later, in Flores, a case which according to the division of the court that decided it, bore no
substantial variance between the circumstances [herein] and in [Dio].[64] Such conclusion is borne out by the facts
in Flores. The accused therein, a checker employed by the Luzon Stevedoring Company, issued a delivery receipt for one
empty sea van to the truck driver who had loaded the purportedly empty sea van onto his truck at the terminal of the
stevedoring company. The truck driver proceeded to show the delivery receipt to the guard on duty at the gate of the
terminal. However, the guards insisted on inspecting the van, and discovered that the empty sea van had actually
contained other merchandise as well.[65] The accused was prosecuted for theft qualified by abuse of confidence, and
found himself convicted of the consummated crime. Before the Court of Appeals, accused argued in the alternative that
he was guilty only of attempted theft, but the appellate court pointed out that there was no intervening act of spontaneous
desistance on the part of the accused that literally frustrated the theft. However, the Court of Appeals, explicitly relying
on Dio, did find that the accused was guilty only of frustrated, and not consummated, theft.

As noted earlier, the appellate court admitted it found no substantial variance between Dio and Flores then before
it. The prosecution in Flores had sought to distinguish that case from Dio, citing a traditional ruling which unfortunately
was not identified in the decision itself. However, the Court of Appeals pointed out that the said traditional ruling was
qualified by the words is placed in a situation where [the actor] could dispose of its contents at once. [66] Pouncing on this
qualification, the appellate court noted that [o]bviously, while the truck and the van were still within the compound, the
petitioner could not have disposed of the goods at once. At the same time, the Court of Appeals conceded that [t]his is
entirely different from the case where a much less bulk and more common thing as money was the object of the crime,
where freedom to dispose of or make use of it is palpably less restricted,[67] though no further qualification was offered
what the effect would have been had that alternative circumstance been present instead.

Synthesis of the Dio and Flores rulings is in order. The determinative characteristic as to whether the crime of
theft was produced is the ability of the actor to freely dispose of the articles stolen, even if it were only momentary. Such
conclusion was drawn from an 1888 decision of the Supreme Court of Spain which had pronounced that in determining
whether theft had been consummated, es preciso que so haga en circunstancias tales que permitan al sustractor de
aquella, siquiera sea mas o menos momentaneamente. The qualifier siquiera sea mas o menos
momentaneamente proves another important consideration, as it implies that if the actor was in a capacity to freely
dispose of the stolen items before apprehension, then the theft could be deemed consummated. Such circumstance was
not present in either Dio or Flores, as the stolen items in both cases were retrieved from the actor before they could be
physically extracted from the guarded compounds from which the items were filched. However, as implied in Flores, the
character of the item stolen could lead to a different conclusion as to whether there could have been free disposition, as in
the case where the chattel involved was of much less bulk and more common x x x, [such] as money x x x.[68]

In his commentaries, Chief Justice Aquino makes the following pointed observation on the import of the Dio ruling:

There is a ruling of the Court of Appeals that theft is consummated when the thief is able to freely dispose
of the stolen articles even if it were more or less momentary. Or as stated in another case[ [69]], theft is
consummated upon the voluntary and malicious taking of property belonging to another which is realized by the
material occupation of the thing whereby the thief places it under his control and in such a situation that he
could dispose of it at once. This ruling seems to have been based on Viadas opinion that in order the theft may be
consummated, es preciso que se haga en circumstancias x x x [[70]][71]

In the same commentaries, Chief Justice Aquino, concluding from Adiao and other cases, also states that [i]n
theft or robbery the crime is consummated after the accused had material possession of the thing with intent to
appropriate the same, although his act of making use of the thing was frustrated.[72]

There are at least two other Court of Appeals rulings that are at seeming variance with
the Dio and Flores rulings. People v. Batoon[73] involved an accused who filled a container with gasoline from a petrol
pump within view of a police detective, who followed the accused onto a passenger truck where the arrest was made.
While the trial court found the accused guilty of frustrated qualified theft, the Court of Appeals held that the accused was
guilty of consummated qualified theft, finding that [t]he facts of the cases of U.S. [v.] Adiao x x x and U.S. v. Sobrevilla x x
x indicate that actual taking with intent to gain is enough to consummate the crime of theft.[74]

In People v. Espiritu,[75] the accused had removed nine pieces of hospital linen from a supply depot and loaded
them onto a truck. However, as the truck passed through the checkpoint, the stolen items were discovered by the Military
Police running the checkpoint. Even though those facts clearly admit to similarity with those in Dio, the Court of Appeals
held that the accused were guilty of consummated theft, as the accused were able to take or get hold of the hospital linen
and that the only thing that was frustrated, which does not constitute any element of theft, is the use or benefit that the
thieves expected from the commission of the offense.[76]

In pointing out the distinction between Dio and Espiritu, Reyes wryly observes that [w]hen the meaning of an
element of a felony is controversial, there is bound to arise different rulings as to the stage of execution of that
felony.[77]Indeed, we can discern from this survey of jurisprudence that the state of the law insofar as frustrated theft is
concerned is muddled. It fact, given the disputed foundational basis of the concept of frustrated theft itself, the question
can even be asked whether there is really such a crime in the first place.

IV.

The Court in 1984 did finally rule directly that an accused was guilty of frustrated, and not consummated, theft. As
we undertake this inquiry, we have to reckon with the import of this Courts 1984 decision in Empelis v. IAC.[78]

As narrated in Empelis, the owner of a coconut plantation had espied four (4) persons in the premises of his
plantation, in the act of gathering and tying some coconuts. The accused were surprised by the owner within the
plantation as they were carrying with them the coconuts they had gathered. The accused fled the scene, dropping the
coconuts they had seized, and were subsequently arrested after the owner reported the incident to the police. After trial,
the accused were convicted of qualified theft, and the issue they raised on appeal was that they were guilty only of simple
theft. The Court affirmed that the theft was qualified, following Article 310 of the Revised Penal Code, [79] but further held
that the accused were guilty only of frustrated qualified theft.
It does not appear from the Empelis decision that the issue of whether the theft was consummated or frustrated
was raised by any of the parties. What does appear, though, is that the disposition of that issue was contained in only two
sentences, which we reproduce in full:

However, the crime committed is only frustrated qualified theft because petitioners were not able to
perform all the acts of execution which should have produced the felony as a consequence. They were not able to
carry the coconuts away from the plantation due to the timely arrival of the owner. [80]

No legal reference or citation was offered for this averment, whether Dio, Flores or the Spanish authorities who may have
bolstered the conclusion. There are indeed evident problems with this formulation in Empelis.

Empelis held that the crime was only frustrated because the actors were not able to perform all the acts of
execution which should have produced the felon as a consequence.[81] However, per Article 6 of the Revised Penal Code,
the crime is frustrated when the offender performs all the acts of execution, though not producing the felony as a result. If
the offender was not able to perform all the acts of execution, the crime is attempted, provided that the non-
performance was by reason of some cause or accident other than spontaneous
desistance. Empelisconcludes that the crime was

frustrated because not all of the acts of execution were performed due to the timely arrival of the owner. However,
following Article 6 of the Revised Penal Code, these facts should elicit the conclusion that the crime was only attempted,
especially given that the acts were not performed because of the timely arrival of the owner, and not because of
spontaneous desistance by the offenders.

For these reasons, we cannot attribute weight to Empelis as we consider the present petition. Even if the two sentences
we had cited actually aligned with the definitions provided in Article 6 of the Revised Penal Code, such passage bears no
reflection that it is the product of the considered evaluation of the relevant legal or jurisprudential thought. Instead, the
passage is offered as if it were sourced from an indubitable legal premise so settled it required no further explication.

Notably, Empelis has not since been reaffirmed by the Court, or even cited as authority on theft. Indeed, we cannot see
how Empelis can contribute to our present debate, except for the bare fact that it proves that the Court had once
deliberately found an accused guilty of frustrated theft. Even if Empelis were considered as a precedent for frustrated
theft, its doctrinal value is extremely compromised by the erroneous legal premises that inform it, and also by the fact that
it has not been entrenched by subsequent reliance.

Thus, Empelis does not compel us that it is an insurmountable given that frustrated theft is viable in this jurisdiction.
Considering the flawed reasoning behind its conclusion of frustrated theft, it cannot present any efficacious argument to
persuade us in this case. Insofar as Empelis may imply that convictions for frustrated theft are beyond cavil in this
jurisdiction, that decision is subject to reassessment.

V.
 At the time our Revised Penal Code was enacted in 1930, the 1870 Codigo Penal de Espaa was then in place. The
definition of the crime of theft, as provided then, read as follows:

Son reos de hurto:

1. Los que con nimo de lucrarse, y sin volencia o intimidacin en las personas ni fuerza en las cosas, toman las cosas
muebles ajenas sin la voluntad de su dueo.

2. Los que encontrndose una cosa perdida y sabiendo quin es su dueo se la apropriaren co intencin de lucro.

3. Los daadores que sustrajeren o utilizaren los frutos u objeto del dao causado, salvo los casos previstos en los
artίculos 606, nm. 1.0; 607, nms, 1.0, 2.0 y 3.0; 608, nm. 1.0; 611; 613; Segundo prrafo del 617 y 618.

It was under the ambit of the 1870 Codigo Penal that the aforecited Spanish Supreme Court decisions were
handed down. However, the said code would be revised again in 1932, and several times thereafter. In fact, under
the Codigo Penal Espaol de 1995, the crime of theft is now simply defined as [e]l que, con nimo de lucro,

tomare las cosas muebles ajenas sin la voluntad de su dueo ser castigado [82]

Notice that in the 1870 and 1995 definition of theft in the penal code of Spain, la libre disposicion of the property is
not an element or a statutory characteristic of the crime. It does appear that the principle originated and perhaps was
fostered in the realm of Spanish jurisprudence.

The oft-cited Salvador Viada adopted a question-answer form in his 1926 commentaries on the 1870 Codigo
Penal de Espaa. Therein, he raised at least three questions for the reader whether the crime of frustrated or
consummated theft had occurred. The passage cited in Dio was actually utilized by Viada to answer the question whether
frustrated or consummated theft was committed [e]l que en el momento mismo de apoderarse de la cosa ajena, vindose
sorprendido, la arroja al suelo.[83] Even as the answer was as stated in Dio, and was indeed derived from the 1888
decision of the Supreme Court of Spain, that decisions factual predicate occasioning the statement was apparently very
different from Dio, for it appears that the 1888 decision involved an accused who was surprised by the employees of a
haberdashery as he was abstracting a layer of clothing off a mannequin, and who then proceeded to throw away the
garment as he fled.[84]

Nonetheless, Viada does not contest the notion of frustrated theft, and willingly recites decisions of the Supreme
Court of Spain that have held to that effect.[85] A few decades later, the esteemed Eugenio Cuello Caln pointed out the
inconsistent application by the Spanish Supreme Court with respect to frustrated theft.

Hay frustracin cuando los reos fueron sorprendidos por las guardias cuando llevaban los sacos de harino
del carro que los conducia a otro que tenan preparado, 22 febrero 1913; cuando el resultado no tuvo efecto por la
intervencin de la policia situada en el local donde se realiz la sustraccin que impidi pudieran los reos disponer de
lo sustrado, 30 de octubre 1950. Hay "por lo menos" frustracin, si existe apoderamiento, pero el culpale no llega a
disponer de la cosa, 12 abril 1930; hay frustracin "muy prxima" cuando el culpable es detenido por el perjudicado
acto seguido de cometer la sustraccin, 28 febrero 1931. Algunos fallos han considerado la existencia de
frustracin cuando, perseguido el culpable o sorprendido en el momento de llevar los efectos hurtados, los
abandona, 29 mayo 1889, 22 febrero 1913, 11 marzo 1921; esta doctrina no es admissible, stos, conforme a lo
antes expuesto, son hurtos consumados.[86]

Ultimately, Cuello Caln attacked the very idea that frustrated theft is actually possible:

La doctrina hoy generalmente sustentada considera que el hurto se consuma cuando la cosa queda de
hecho a la disposicin del agente. Con este criterio coincide la doctrina sentada ltimamente porla jurisprudencia
espaola que generalmente considera consumado el hurto cuando el culpable coge o aprehende la cosa y sta
quede por tiempo ms o menos duradero bajo su poder. El hecho de que ste pueda aprovecharse o no de lo
hurtado es indiferente. El delito no pierde su carcter de consumado aunque la cosa hurtada sea devuelta por el
culpable o fuere recuperada. No se concibe la frustracin, pues es muy dificil que el que hace cuanto es necesario
para la consumacin del hurto no lo consume efectivamente, los raros casos que nuestra jurisprudencia, muy
vacilante, declara hurtos frustrados son verdaderos delitos consumados.[87] (Emphasis supplied)
 Cuello Calns submissions cannot be lightly ignored. Unlike Viada, who was content with replicating the Spanish
Supreme Court decisions on the matter, Cuello Caln actually set forth his own thought that questioned whether theft could
truly be frustrated, since pues es muy dificil que el que hace cuanto es necesario para la consumacin del hurto no lo
consume efectivamente. Otherwise put, it would be difficult to foresee how the execution of all the acts necessary for the
completion of the crime would not produce the effect of theft.

This divergence of opinion convinces us, at least, that there is no weighted force in scholarly thought that obliges
us to accept frustrated theft, as proposed in Dio and Flores. A final ruling by the Court that there is no crime of frustrated
theft in this jurisdiction will not lead to scholastic pariah, for such a submission is hardly heretical in light of Cuello Calns
position.

Accordingly, it would not be intellectually disingenuous for the Court to look at the question from a fresh
perspective, as we are not bound by the opinions of the respected Spanish commentators, conflicting as they are, to
accept that theft is capable of commission in its frustrated stage. Further, if we ask the question whether there is a
mandate of statute or precedent that must compel us to adopt the Dio and Flores doctrines, the answer has to be in the
negative. If we did so, it would arise not out of obeisance to an inexorably higher command, but from the exercise of the
function of statutory interpretation that comes as part and parcel of judicial review, and a function that allows breathing
room for a variety of theorems in competition until one is ultimately adopted by this Court.
V.

The foremost predicate that guides us as we explore the matter is that it lies in the province of the legislature,
through statute, to define what constitutes a particular crime in this jurisdiction. It is the legislature, as representatives of
the sovereign people, which determines which acts or combination of acts are criminal in nature. Judicial interpretation of
penal laws should be aligned with what was the evident legislative intent, as expressed primarily in the language of the
law as it defines the crime. It is Congress, not the courts, which is to define a crime, and ordain its punishment. [88] The
courts cannot arrogate the power to introduce a new element of a crime which was unintended by the legislature, or
redefine a crime in a manner that does not hew to the statutory language. Due respect for the prerogative of Congress in
defining crimes/felonies constrains the Court to refrain from a broad interpretation of penal laws where a narrow
interpretation is appropriate. The Court must take heed of language, legislative history and purpose, in order to strictly
determine the wrath and breath of the conduct the law forbids.[89]

With that in mind, a problem clearly emerges with the Dio/Flores dictum. The ability of the offender to freely
dispose of the property stolen is not a constitutive element of the crime of theft. It finds no support or extension in Article
308, whether as a descriptive or operative element of theft or as the mens rea or actus reus of the felony. To restate what
this Court has repeatedly held: the elements of the crime of theft as provided for in Article 308 of the Revised Penal Code
are: (1) that there be taking of personal property; (2) that said property belongs to another; (3) that the taking be done with
intent to gain; (4) that the taking be done without the consent of the owner; and (5) that the taking be accomplished
without the use of violence against or intimidation of persons or force upon things. [90]

Such factor runs immaterial to the statutory definition of theft, which is the taking, with intent to gain, of personal
property of another without the latters consent. While the Dio/Flores dictum is considerate to the mindset of the offender,
the statutory definition of theft considers only the perspective of intent to gain on the part of the offender, compounded by
the deprivation of property on the part of the victim.

For the purpose of ascertaining whether theft is susceptible of commission in the frustrated stage, the question is
again, when is the crime of theft produced? There would be all but certain unanimity in the position that theft is produced
when there is deprivation of personal property due to its taking by one with intent to gain. Viewed from that perspective, it
is immaterial to the product of the felony that the offender, once having committed all the acts of execution for theft, is able
or unable to freely dispose of the property stolen since the deprivation from the owner alone has already ensued from
such acts of execution. This conclusion is reflected in Chief Justice Aquinos commentaries, as earlier cited, that [i]n theft
or robbery the crime is consummated after the accused had material possession of the thing with intent to appropriate the
same, although his act of making use of the thing was frustrated.[91]

It might be argued, that the ability of the offender to freely dispose of the property stolen delves into the concept of
taking itself, in that there could be no true taking until the actor obtains such degree of control over the stolen item. But
even if this were correct, the effect would be to downgrade the crime to its attempted, and not frustrated stage, for it would
mean that not all the acts of execution have not been completed, the taking not having been accomplished. Perhaps this
point could serve as fertile ground for future discussion, but our concern now is whether there is indeed a crime of
frustrated theft, and such consideration proves ultimately immaterial to that question. Moreover, such issue will not apply
to the facts of this particular case. We are satisfied beyond reasonable doubt that the taking by the petitioner was
completed in this case. With intent to gain, he acquired physical possession of the stolen cases of detergent for a
considerable period of time that he was able to drop these off at a spot in the parking lot, and long enough to load these
onto a taxicab.

Indeed, we have, after all, held that unlawful taking, or apoderamiento, is deemed complete from the moment the
offender gains possession of the thing, even if he has no opportunity to dispose of the same.[92] And long ago, we
asserted in People v. Avila:[93]

x x x [T]he most fundamental notion in the crime of theft is the taking of the thing to be appropriated into the
physical power of the thief, which idea is qualified by other conditions, such as that the taking must be
effected animo lucrandi and without the consent of the owner; and it will be here noted that the definition does not
require that the taking should be effected against the will of the owner but merely that it should be without his
consent, a distinction of no slight importance.[94]

Insofar as we consider the present question, unlawful taking is most material in this respect. Unlawful taking,
which is the deprivation of ones personal property, is the element which produces the felony in its consummated stage. At
the same time, without unlawful taking as an act of execution, the offense could only be attempted theft, if at all.

With these considerations, we can only conclude that under Article 308 of the Revised Penal Code, theft cannot
have a frustrated stage. Theft can only be attempted or consummated.

Neither Dio nor Flores can convince us otherwise. Both fail to consider that once the offenders therein obtained
possession over the stolen items, the effect of the felony has been produced as there has been deprivation of property.
The presumed inability of the offenders to freely dispose of the stolen property does not negate the fact that the owners
have already been deprived of their right to possession upon the completion of the taking.

Moreover, as is evident in this case, the adoption of the rule that the inability of the offender to freely dispose of
the stolen property frustrates the theft would introduce a convenient defense for the accused which does not reflect any
legislated intent,[95] since the Court would have carved a viable means for offenders to seek a mitigated penalty under
applied circumstances that do not admit of easy classification. It is difficult to formulate definite standards as to when a
stolen item is susceptible to free disposal by the thief. Would this depend on the psychological belief of the offender at the
time of the commission of the crime, as implied in Dio?

Or, more likely, the appreciation of several classes of factual circumstances such as the size and weight of the
property, the location of the property, the number and identity of people present at the scene of the crime, the number and
identity of people whom the offender is expected to encounter upon fleeing with the stolen property, the manner in which
the stolen item had been housed or stored; and quite frankly, a whole lot more. Even the fungibility or edibility of the stolen
item would come into account, relevant as that would be on whether such property is capable of free disposal at any
stage, even after the taking has been consummated.

All these complications will make us lose sight of the fact that beneath all the colorful detail, the owner was indeed
deprived of property by one who intended to produce such deprivation for reasons of gain. For such will remain the
presumed fact if frustrated theft were recognized, for therein, all of the acts of execution, including the taking, have been
completed. If the facts establish the non-completion of the taking due to these peculiar circumstances, the effect could be
to downgrade the crime to the attempted stage, as not all of the acts of execution have been performed. But once all
these acts have been executed, the taking has been completed, causing the unlawful deprivation of property, and
ultimately the consummation of the theft.

Maybe the Dio/Flores rulings are, in some degree, grounded in common sense. Yet they do not align with the
legislated framework of the crime of theft. The Revised Penal Code provisions on theft have not been designed in such
fashion as to accommodate said rulings. Again, there is no language in Article 308 that expressly or impliedly allows that
the free disposition of the items stolen is in any way determinative of whether the crime of theft has been
produced. Dio itself did not rely on Philippine laws or jurisprudence to bolster its conclusion, and the later Flores was
ultimately content in relying on Dio alone for legal support. These cases do not enjoy the weight of stare decisis, and even
if they did, their erroneous appreciation of our law on theft leave them susceptible to reversal. The same holds true
of Empilis, a regrettably stray decision which has not since found favor from this Court.

We thus conclude that under the Revised Penal Code, there is no crime of frustrated theft. As petitioner has
latched the success of his appeal on our acceptance of the Dio and Flores rulings, his petition must be denied, for we
decline to adopt said rulings in our jurisdiction. That it has taken all these years for us to recognize that there can be no
 frustrated theft under the Revised Penal Code does not detract from the correctness of this conclusion. It will take
considerable amendments to our Revised Penal Code in order that frustrated theft may be recognized. Our deference to
Viada yields to the higher reverence for legislative intent.

WHEREFORE, the petition is DENIED. Costs against petitioner.

SO ORDERED.

DANTE O. TINGA
Associate Justice

WE CONCUR:

REYNATO S. PUNO
Chief Justice

LEONARDO A. QUISUMBING CONSUELO YNARES-SANTIAGO

Associate Justice Associate Justice

ANGELINA SANDOVAL-GUTIERREZ ANTONIO T. CARPIO

Associate Justice Associate Justice

MA. ALICIA AUSTRIA-MARTINEZ RENATO C. CORONA

Associate Justice Associate Justice

CONCHITA CARPIO MORALES ADOLFO S. AZCUNA

Associate Justice Associate Justice

MINITA V. CHICO-NAZARIO CANCIO C. GARCIA

Associate Justice Associate Justice

PRESBITERO J. VELASCO, JR. ANTONIO EDUARDO B. NACHURA

Associate Justice Associate Justice

CERTIFICATION
Pursuant to Article VIII, Section 13 of the Constitution, it is hereby certified that the conclusions in the above Decision had
been reached in consultation before the case was assigned to the writer of the opinion of the Court.

REYNATO S. PUNO
Chief Justice

[1]See infra, People v. Dio and People v. Flores.

[2]Notaccounting for those unpublished or unreported decisions, in the one hundred year history of this Court,
which could no longer be retrieved from the Philippine Reports or other secondary sources, due to their wholesale
destruction during the Second World War or for other reasons.
[3]See People v. Adiao, infra. There have been a few cases wherein the Court let stand a conviction for frustrated

theft, yet in none of those cases was the issue squarely presented that theft could be committed at its frustrated stage.
See People v. Abuyen, 52 Phil. 722 (1929); People v. Flores, 63 Phil. 443 (1936); and People v. Tapang, 88 Phil. 721
(1951). In People v. Argel G.R. No. L-45975, 25 May 1981, 192 SCRA 21, the Court did tacitly accept the viability of a
conviction for frustrated theft, though the issue expounded on by the Court pertained to the proper appellate jurisdiction
over such conviction.

It would indeed be error to perceive that convictions for frustrated theft are traditionally unconventional in this
jurisdiction, as such have routinely been handed down by lower courts, as a survey of jurisprudence would reveal. Still,
the plain fact remains that this Court , since Adiao in 1918, has yet to directly rule on the legal foundation of frustrated
theft, or even discuss such scenario by way of dicta.

In passing, we take note of a recent decision of the Court of Appeals in People v. Concepcion, C.A. G.R. CR No.
28280, 11 July 2005 (See at http://ca.supremecourt.gov.ph /cardis/CR28280.pdf), where the appellate court affirmed a
conviction for frustrated theft, the accused therein having been caught inside Meralco property before he could flee with
some copper electrical wire. However, in the said decision, the accused was charged at the onset with frustrated theft,
and the Court of Appeals did not inquire why the crime committed was only frustrated theft. Moreover, the charge for theft
was not under the Revised Penal Code, but under Rep. Act No. 7832, a special law.

[4]53 Phil. 226 (1929).

[5]217 Phil. 377 (1984).

[6]Records, pp. 1-2.

[7]Rollo, pp. 21-22.

[8]Id. at 22.

[9]See id. at 472.

[10]See Records, pp. 7-14. A brief comment is warranted regarding these four (4) other apparent suspects. The

affidavits and sworn statements that were executed during the police investigation by security guards Lago and Vivencio
Yanson, by SM employee Adelio Nakar, and by the taxi driver whose cab had been hailed to transport the accused,
commonly point to all six as co-participants in the theft of the detergents. It is not explained in the record why no charges
were brought against the four (4) other suspects, and the prosecutions case before the trial court did not attempt to draw
in any other suspects other than petitioner and Calderon. On the other hand, both petitioner and Calderon claimed during
trial that they were innocent bystanders who happened to be in the vicinity of the Super Sale Club at the time of the
incident when they were haled in, along with the four (4) other suspects by the security guards in the resulting confusion.
See infra. However, both petitioner and Calderon made no move to demonstrate that the non-filing of the charges against
the four (4) other suspects somehow bolstered their plea of innocence.
 In any event, from the time this case had been elevated on appeal to the Court of Appeals, no question was
anymore raised on the version of facts presented by the prosecution. Thus, any issue relative to these four (4) other
suspects should bear no effect in the present consideration of the case.

[11]Also identified in the case record as Rosalada or Rosullado. He happened to be among the four (4) other

suspects also apprehended at the scene and brought for investigation to the Baler PNP Station. See id. Rosulada also
testified in court in behalf of Calderon. See Records, pp. 357-390.

[12]Records, pp. 330-337.

[13]A person who was neither among the four (4) other suspects (see note 6) nor a witness for the defense.
[14]Rollo, p. 25.

[15]Records, pp. 424-425.

[16]Id. at 472-474; Penned by Judge Reynaldo B. Daway.

[17]Id. at 474.

[18]Id. at 484.
[19]CA rollo, pp. 54-62.

[20]Rollo, p. 25.

[21]Id. at 20-27. Penned by Associate Justice Eubolo G. Verzola of the Court of Appeals Third Division, concurred

in by Associate Justices Martin S. Villarama, Jr. and Mario L. Guaria.

[22]A motion for reconsideration filed by petitioner was denied by the Court of Appeals in a Resolution dated 1

October 2003.
[23]Rollo, pp. 8-15.
[24]Id. at 12.

[25]Id. at 9.

[26]Id. at at 13-14.

[27]No. 924-R, 18 February 1948, 45 O.G. 3446.

[28]6 C.A. Rep. 2d 835 (1964).

[29]See e.g., L.B. REYES, I THE REVISED PENAL CODE: CRIMINAL LAW (13th ed., 2001), at 112-113 and R.

AQUINO, I THE REVISED PENAL CODE (1997 ed.), at 122.

[30]Act No. 3185, as amended.

[31]SeePeople v. Caballero, 448 Phil. 514, 534 (2003). Reyes defines the final point of the subjective phase as
that point where [the offender] still has control over his acts, including their (acts) natural course. See L.B. REYES, I THE
REVISED PENAL CODE: CRIMINAL LAW (13th Ed., 2001), at 101.
[32]People v. Caballero, 448 Phil. 514, 534 (2003).

[33]See e.g., U.S. v. Eduave, 36 Phil. 209, 212 (1917); People v. Caballero, id.

[34]U.S. v. Eduave, 36 Phil. 209, 212 (1917).

[35]People
v. Pacana, 47 Phil. 48 (1925); cited in AQUINO, supra note 29, at 39. See also Lecaroz v.
Sandiganbayan, 364 Phil. 890, 905 (1999).

[36]See Padilla v. Dizon, A.C. No. 3086, 23 February 1988, 158 SCRA 127, 135.
 [37]People v. Moreno, 356 Phil. 231, 248 (1998) citing BLACK'S LAW DICTIONARY, 5th ed., p. 889.

[38]Jariol, Jr. v. Sandiganbayan, Nos. L-52095-52116, 13 August 1990, 188 SCRA 475, 490.

[39]City of Chicago v. Morales, 527 U.S. 41 (1999) cited in Separate Opinion, J.Tinga, Romualdez v.

Sandiganbayan, G.R. No. 152259, 29 July 2004, 435 SCRA 371, 400.

[40]J. Feliciano, Concurring and Dissenting, Umil v. Ramos, G.R. No. 81567, 3 October 1991, 202 SCRA 251, 288.

[41]See also REVISED PENAL CODE, Art. 310, which qualifies theft with a penalty two degrees higher if

committed by a domestic servant, or with grave abuse of confidence, or if the property stolen is motor vehicle, mail matter
or large cattle or consists of coconuts taken from the premises of the plantation or fish taken from a fishpond or fishery, or
if property is taken on the occasion of fire, earthquake, typhoon, volcanic eruption, or any other calamity, vehicular
accident or civil disturbance.
[42]See People v. Bustinera, G.R. No. 148233, 8 June 2004, 431 SCRA 284, 291, citing People v. Sison, 322

SCRA 345, 363-364 (2000).

[43]S. GUEVARRA, COMMENTARIES ON THE REVISED PENAL CODE (4th ed., 1946), at 614.

[44]Id. at 615.

[45]Id. citing Inst. 4, 1, 1.

[46]Section 1(2) of the Theft Act of 1968 states: It is immaterial whether the appropriation is made with a view to

gain, or is made for the thiefs own benefit. Sir John Smith provides a sensible rationalization for this doctrine: Thus, to
take examples from the old law, if D takes Ps letters and puts them down on a lavatory or backs Ps horse down a mine
shaft, he is guilty of theft notwithstanding the fact that he intends only loss to P and no gain to himself or anyone else. It
might be thought that these instances could safely and more appropriately have been left to other branches of the criminal
lawthat of criminal damage to property for instance. But there are cases where there is no such damage or destruction of
the thing as would found a charge under another Act. For example, D takes Ps diamond and flings it into a deep pond.
The diamond lies unharmed in the pond and a prosecution for criminal damage would fail. It seems clearly right that D
should be guilty of theft. J. SMITH, SMITH & HOGAN CRIMINAL LAW (9th ed., 1999), at 534.

[47]F. REGALADO, CRIMINAL LAW CONSPECTUS (1st ed., 2000), at 520.

[48]People v. Kho Choc, 50 O.G. 1667, cited in REGALADO, id. at 521.

[49]People v. Galang, CA, 43 O.G. 577; People v. Rico, CA, 50 O.G. 3103; cf.People v. Roxas, CA-G.R. No.

14953, 31 October 1956, all cited in REGALADO, supra note 47 at 521.

[50]People v. Fernandez, CA, 38 O.G. 985; People v. Martisano, CA, 48 O.G. 4417, cited in REGALADO, supra

note 47 at 521.
[51]REGALADO, supra note 47 at 521 citing Villacorta v. Insurance Commission, G.R. No. 54171, 28 October

1980, 100 SCRA 467; Association of Baptists for World Evangelism v. Fieldmens Ins. Co., No. L-28772, 21 September
1983, 209 Phil. 505 (1983). See also People v. Bustinera, supra note 42.

[52]The distinction being inconsequential if the criminal charge is based on a special law such as the Dangerous

Drugs Law. See e.g., People v. Enriquez, G.R. No. 99838, October 23 1997, 281 SCRA 103, 120.

[53]38 Phil. 754 (1918).

[54]Id. at 755.

[55]Id.

[56]Id. at 755-756.

[57]Supra note 4.
 [58]Supra note 4 at 227.

[59]Id.

[60]People v. Dio, supra note 27 at 3450.

[61]Id.

[62]Id.

[63]Id. at 3451.
[64]People v. Flores, supra note 28 at 840.

[65]Id. at 836. The Court of Appeals in Flores did not identify the character of these stolen merchandise.

[66]Id. at 841.

[67]Id.

[68]People v. Dio, supra note 27 at 841.

[69]People v. Naval and Beltran, CA 46 O.G. 2641.

[70]See note 62.

[71]AQUINO, supra note 29 at 122.

[72]Id. at 110.

[73]C.A. G.R. No. 20105-R, 4 October 1958, 55 O.G. 1388.

[74]Id. at 1391. Citations omitted.

[75]CA G.R. No. 2107-R, 31 May 1949.

[76]Note the similarity between this holding and the observations of Chief Justice Aquino in note 72.

[77]REYES, supra note 29 at 113.

[78]Supra note 5.

[79]REVISED PENAL CODE, Art. 310 states that the crime of theft shall "be punished by the penalties next higher

by two degrees than those respectively expressed in the next preceding article x x x if the property stolen x x x consists of
coconuts taken from the premises of a plantation, x x x." Thus, the stealing of coconuts when they are still in the tree or
deposited on the ground within the premises is qualified theft. When the coconuts are stolen in any other place, it is
simple theft. Stated differently, if the coconuts were taken in front of a house along the highway outside the coconut
plantation, it would be simple theft only.

[In the case at bar, petitioners were seen carrying away fifty coconuts while they were still in the premises of the
plantation. They would therefore come within the definition of qualified theft because the property stolen consists of
coconuts taken from the premises of a plantation.] Empelis v. IAC, supra note 5, at 379, 380.

[80]Empelis v. IAC, supra note 5, at 380.

[81]Id.

[82]Art. 234, Cdigo Penal Espaol de 1995. See Ley Orgnica 10/1995, de 23 de noviembre, del Cdigo Penal,

http://noticias.juridicas.com/base_datos/Penal/lo10-1995.html (Last visited, 15 April 2007). The traditional qualifier but

without violence against or intimidation of persons nor force upon things, is instead incorporated in the definition of
robbery (robos) under Articulo 237 of the same Code (Son reos del delito de robo los que, con nimo de lucro, se
apoderaren de las cosas muebles ajenas empleando fuerza en las cosas para acceder al lugar donde stas se encuentran
o violencia o intimidacin en las personas.)

By way of contrast, the Theft Act 1968 of Great Britain defines theft in the following manner: A person is guilty of
theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it;
and thief and steal shall be construed accordingly. See Section 1(1), Theft Act 1968 (Great Britain). The most notable
difference between the modern British and Spanish laws on theft is the absence in the former of the element of animo
lucrandi. See note 42.
[83]1 S. VIADA, CODIGO PENAL REFORMADO DE 1870 (1926 ed) at 103.

[84]Considerando que segn se desprende de la sentencia recurrida, los dependientes de la sastrera de D. Joaquin

Gabino sorprendieron al penado Juan Gomez Lopez al tomar una capa que haba en un maniqu, por lo que hubo de
arrojarla al suelo, siendo detenido despues por agentes de la Autoridad yque esto supuesto es evidente que el delito no
aparece realizado en toda la extensin precisa para poderlo calificar como consumado, etc. Id. at 103-104.
[85]The other examples cited by Viada of frustrated theft are in the case where the offender was caught stealing

potatoes off a field by storing them in his coat, before he could leave the field where the potatoes were taken, see Viada
(supra note 83, at 103), where the offender was surprised at the meadow from where he was stealing firewood, id.

[86]E. CUELLO CALON, II DERECHO PENAL (1955 ed.), at 799 (Footnote 1).

[87]Id. at 798-799.
[88]Laurel v. Abrogar, G.R. No. 155076, 27 February 2006, 483 SCRA 243, 266, citing United States v. Wiltberger,

18 U.S. 76 (1820).
[89]Laurel v. Abrogar, G.R. No. 155076, 27 February 2006, 483 SCRA 243. See also Dowling v. United States,

473 U.S. 207 (1985).

[90]See e.g., People v. Bustinera, supra note 42.

[91]AQUINO, supra note 29, at 110.

[92]People v. Obillo, 411 Phil. 139, 150 (2001); People v. Bernabe, 448 Phil. 269, 280 (2003); People v.

Bustinera, supra note 42 at 295.

[93]44 Phil. 720 (1923).

[94]Id. at 726.

[95]JusticeRegalado cautions against putting a premium upon the pretensions of an accused geared towards
obtention of a reduced penalty. REGALADO, supra note 47, at 27.
G.R. No. 88724 April 3, 1990

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
CEILITO ORITA alias "Lito," defendant-appellant.

The Office of the Solicitor General for plaintiff-appellee.

C. Manalo for defendant-appellant.

MEDIALDEA, J.:

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

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

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

CONTRARY TO LAW.

Upon being arraigned, the accused entered the plea of not guilty to the offense charged. After the witnesses for the
People testified and the exhibits were formally offered and admitted, the prosecution rested its case. Thereafter, the
defense opted not to present any exculpatory evidence and instead filed a Motion to Dismiss. On August 5, 1985, the trial
court rendered its decision, the dispositive portion of which reads (pp. 59-60, Rollo):

WHEREFORE. the Court being morally certain of the guilt of accused CEILITO ORITA @ LITO, of the crime of Frustrated
Rape (Art. 335, RPC), beyond reasonable doubt, with the aggravating circumstances of dwelling and nightime (sic) with
no mitigating circumstance to offset the same, and considering the provisions of the Indeterminate Sentence Law,
imposes on accused an imprisonment of TEN (10) YEARS and ONE (1) DAY, PRISION MAYOR, as minimum to
TWELVE (12) YEARS PRISION MAYOR, maximum; to indemnify CRISTINA S. ABAYAN, the amount of Four Thousand
(P4,000.00) Pesos, without subsidiary imprisonment in case of insolvency, and to pay costs.

SO ORDERED.

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

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

SO ORDERED.

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

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

Complainant Cristina S. Abayan was a 19-year old freshman student at the St. Joseph's College at Borongan, Eastern
Samar. Appellant was a Philippine Constabulary (PC) soldier.
In the early morning of March 20, 1983, complainant arrived at her boarding house. Her classmates had just brought her
home from a party (p. 44, tsn, May 23, 1984). Shortly after her classmates had left, she knocked at the door of her
boarding house (p. 5, ibid). All of a sudden, somebody held her and poked a knife to her neck. She then recognized
appellant who was a frequent visitor of another boarder (pp. 8-9, ibid).

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

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

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

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

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

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

Meanwhile, the policemen brought complainant to the Eastern Samar Provincial Hospital where she was physically
examined.

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

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

PE Findings — Pertinent Findings only.

Neck- — Circumscribed hematoma at Ant. neck.

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

Back — Multiple pinpoint marks.

Extremities — Abrasions at (R) and (L) knees.

Vulva — No visible abrasions or marks at the perineal area or over the vulva, errythematous (sic) areas noted surrounding
vaginal orifice, tender, hymen intact; no laceration fresh and old noted; examining finger can barely enter and with
difficulty; vaginal canal tight; no discharges noted.

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

In this appeal, the accused assigns the following errors:

1) The trial court erred in disregarding the substantial inconsistencies in the testimonies of the witnesses; and

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

1. By using force or intimidation;

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

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

xxx xxx xxx

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

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

Art. 6. Consummated, frustrated, and attempted felonies. — Consummated felonies as well as those which are frustrated
and attempted, are punishable.

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

There is an attempt when the offender commences the commission of a felony directly by overt acts, and does not
perform all the acts of execution which should produce the felony by reason of some cause or accident other than his own
spontaneous desistance.
Correlating these two provisions, there is no debate that the attempted and consummated stages apply to the crime of
rape.1âwphi1 Our concern now is whether or not the frustrated stage applies to the crime of rape.

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

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

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

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

In concluding that there is no conclusive evidence of penetration of the genital organ of the victim, the trial court relied on
the testimony of Dr. Zamora when he "categorically declared that the findings in the vulva does not give a concrete
disclosure of penetration. As a matter of fact, he tossed back to the offended party the answer as to whether or not there
actually was penetration." (p. 53, Rollo) Furthermore, the trial court stated (p. 57, Rollo):

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

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

Q Was the penis inserted on your vagina?

A It entered but only a portion of it.

xxx xxx xxx

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

A I inserted his penis into my vagina.

Q And was it inserted?

A Yes only a little.

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

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

Article 335, paragraph 3, of the Revised Penal Code provides that whenever the crime of rape is committed with the use
of a deadly weapon, the penalty shall be reclusion perpetua to death. The trial court appreciated the aggravating
circumstances of dwelling and nighttime. Thus, the proper imposable penalty is death. In view, however, of Article 111,
Section 19(1) of the 1987 Constitution and Our ruling in People v. Millora, et al., G.R. Nos. L-38968-70, February 9, 1989,
that the cited Constitutional provision did not declare the abolition of the death penalty but merely prohibits the imposition
of the death penalty, the Court has since February 2, 1987 not imposed the death penalty whenever it was called for
under the Revised Penal Code but instead reduced the same to reclusion perpetua (People v. Solis, et al., G.R. Nos.
78732-33, February 14, 1990). Reclusion perpetua, being a single indivisible penalty under Article 335, paragraph 3, is
imposed regardless of any mitigating or aggravating circumstances (in relation to Article 63, paragraph 1, Revised Penal
Code; see People v. Arizala, G.R. No. 59713, March 15, 1982, 112 SCRA 615; People v. Manzano, G.R. No. L38449,
November 25, 1982, 118 SCRA 705; People v. Ramirez, G.R. No. 70744, May 31, 1985, 136 SCRA 702).

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

SO ORDERED.

Narvasa, Cruz, Gancayco and Griño-Aquino, JJ., concur.

.R. No. 33463 December 18, 1930

THE PEOPLE OF THE PHILIPPINE ISLANDS, Plaintiff-Appellee, vs. BASILIO BORINAGA, Defendant-Appellant.

Paulo Jaro for appellant.

Attorney-General Jaranilla for appellee.

MALCOM, J.:

Sometime prior to March 4, 1929, an American by the name of Harry H. Mooney, a resident of the municipality of
Calubian, Leyte, contracted with one Juan Lawaan for the construction of a fish corral. Basilio Borinaga was associated
with Lawaan in the construction of the corral. On the morning of March 4, 1929, Lawaan, with some of his men, went to
Mooney's shop and tried to collect from him the whole amount fixed by the contract, notwithstanding that only about two-
thirds of the fish corral had been finished. As was to be expected, Mooney refused to pay the price agreed upon at that
time. On hearing this reply of Mooney, Lawaan warned him that if he did not pay, something would happen to him, to
which Mooney answered that if they wanted to do something to him they should wait until after breakfast, Lawaan then left
with his men, and Mooney, after partaking of his morning meal, returned to his shop.chanroblesvirtualawlibrary chanrobles
virtual law library

On the evening of the same day, Mooney was in the store of a neighbor by the name of Perpetua Najarro. He had taken a
seat on a chair in front of the Perpetua, his back being to the window. Mooney had not been there long when Perpetua
saw Basilio Borinaga from the window strike with a knife at Mooney, but fortunately for the latter, the knife lodged in the
back of the chair on which Mooney was seated. Mooney fell from the chair as a result of the force of the blow, but was not
injured. Borinaga ran away towards the market place. Before this occurred, it should be stated that Borinaga had been
heard to tell a companion: "I will stab this Mooney, who is an American brute." After the attack, Borinaga was also heard
to say that he did not hit the back of Mooney but only the back of the chair. But Borinaga was persistent in his endeavor,
and hardly ten minutes after the first attack, he returned, knife in hand, to renew it, but was unable to do so because
Mooney and Perpetua were then on their guard and turned a flashlight on Borinaga, frightening him away. Again the same
night, Borinaga was overheard stating that he had missed his mark and was unable to give another blow because of the
flashlight. The point of the knife was subsequently, on examination of the chair, found embedded in
it.chanroblesvirtualawlibrary chanrobles virtual law library

The foregoing occurrences gave rise to the prosecution of Basilio Borinaga in the Court of First Instance of Leyte for the
crime of frustrated murder. The defense was alibi, which was not given credence. The accused was convicted as charged,
by Judge Ortiz, who sentenced him to fourteen years, eight months, and one day of imprisonment, reclusion temporal,
with the accessory penalties and the costs.chanroblesvirtualawlibrary chanrobles virtual law library

The homicidal intent of the accused was plainly evidenced. The attendant circumstances conclusively establish that
murder was in the heart and mind of the accused. More than mere menaces took place. The aggressor stated his
purpose, which was to kill, and apologized to his friends for not accomplishing that purpose. A deadly weapon was used.
The blow was directed treacherously toward vital organs of the victim. The means used were entirely suitable for
accomplishment. The crime should, therefore, be qualified as murder because of the presence of the circumstance of
treachery.chanroblesvirtualawlibrary chanrobles virtual law library

The only debatable question, not referred to in the briefs, but which must be decided in order to dispose of the appeal, is:
Do the facts constitute frustrated murder or attempted murder within the meaning of article 3 of the Penal Code? Although
no exact counterpart to the facts at bar has been found either in Spanish or Philippine jurisprudence, a majority of the
court answer the question propounded by stating that the crime committed was that of frustrated murder. This is true
notwithstanding the admitted fact that Mooney was not injured in the least.chanroblesvirtualawlibrary chanrobles virtual
law library

The essential condition of a frustrated crime, that the author perform all the acts of execution, attended the attack. Nothing
remained to be done to accomplish the work of the assailant completely. The cause resulting in the failure of the attack
arose by reason of forces independent of the will of the perpetrator. The assailant voluntarily desisted from further acts.
What is known as the subjective phase of the criminal act was passed. (U. S. vs. Eduave [1917], 36 Phil., 209; People vs.
Mabugat [1926], 51 Phil., 967.) chanrobles virtual law library

No superfine distinctions need be drawn in favor of that accused to establish a lesser crime than that of frustrated murder,
for the facts disclose a wanton disregard of the sanctity of human life fully meriting the penalty imposed in the trial
court.chanroblesvirtualawlibrary chanrobles virtual law library
Based on foregoing considerations, the judgment appealed from will be affirmed, with the costs of this instance against
the appellant.chanroblesvirtualawlibrary chanrobles virtual law library

Avanceña, C.J., Villamor, Ostrand, Johns and Romualdez, JJ., concur. chanrobles virtual law library

chanrobles virtual law library

chanrobles virtual law library

Separate Opinions chanrobles virtual law library

chanrobles virtual law library

VILLA-REAL, J., dissenting:chanrobles virtual law library

We dissent from the opinion of the majority in so far as it finds the defendant-appellant guilty of the crime of frustrated
murder instead of that of an attempt to commit murder.chanroblesvirtualawlibrarychanrobles virtual law library

Article 3 of the Penal Code provides as follows:

ART. 3. Frustrated felonies and attempts to commit felonies are punishable, as well as those which are
consummated.chanroblesvirtualawlibrary chanrobles virtual law library

A felony is frustrated when the offender performs all the acts of execution which should produce the felony as a
consequence, but which, nevertheless, do no produce it by reason of causes independent of the will of the
perpetrator.chanroblesvirtualawlibrary chanrobles virtual law library

There is an attempt when the offender commences the commission of the felony directly by overt acts, and does not
perform all the acts of execution which constitute the felony by reason of some cause or accident other than his own
voluntary desistance.

The pertinent facts as found by the court below and by this court are the following:chanrobles virtual law library

On the evening of the same day, Mooney was in the store of a neighbor by the name of Perpetua Najarro. He had taken a
seat on a chair in front of Perpetua, his back being to the window. Mooney had not been there long when Perpetua saw
Basilio Borinaga from the window strike with a knife at Mooney, but fortunately for the latter, the knife lodged in the back
of the chair on which Mooney was seated. Mooney fell from the chair as a result of the force of the blow, but was not
injured. Borinaga ran away towards the market place. Before this occurred, it should be stated that Borinaga had been
heard to tell a companion: "I will stab this Mooney, who is an American brute." After the attack, Borinaga was also heard
to say that he did not hit the back of Mooney but only the back of the chair. But Borinaga was persistent in his endeavor,
and hardly ten minutes after the first attack, he returned, knife in hand, to renew it, but was unable to do so because
Mooney and Perpetua were then on their guard and turned a flashlight on Borinaga, frightening him away. Again that
same night, Borinaga was overheard stating that he had missed his mark and was unable to give another blow because of
the flashlight. The point of the knife was subsequently, on examination of the chair, found embedded in
it.chanroblesvirtualawlibrary chanrobles virtual law library

Since the facts constituting frustrated felony and those constituting an attempt to commit felony are integral parts of those
constituting consummated felony, it becomes important to know what facts would have been necessary in order that the
case at bar might have been a consummated murder, so that we may determine whether the facts proved during the trial
constitute frustrated murder or simply an attempt to commit murder.chanroblesvirtualawlibrary chanrobles virtual law
library

In order that the crime committed by the defendant-appellant might have been a consummated murder it would have been
necessary for him to have inflicted a deadly wound upon a vital spot of the body of Mooney, with treachery, as a result of
which he should have died.chanroblesvirtualawlibrary chanrobles virtual law library

Since according to the definition given by the Code a frustrated felony is committed "when the offender performs all the
acts of execution which should produce the felony as a consequence, but which, nevertheless, do not produce it by
reason of causes independent of the will of the perpetrator" let us examine the facts of record to find out whether the said
defendant-appellant has performed all the acts of execution which should produce the murder of Mooney as a
consequence. The prisoner at bar, intending to kill Mooney, approached him stealthily from behind and made movement
with his right hand to strike him in the back with a deadly knife, but the blow, instead of reaching the spot intended, landed
on the frame of the back of the chair on which Mooney was sitting at the time and did not cause the slightest physical
injury on the latter. The acts of execution performed by the defendant-appellant did not produce the death of Mooney as a
consequence nor could they have produced it because the blow did not reach his body; therefore the culprit did not
perform all the acts of execution which should produce the felony. There was lacking the infliction of the deadly wound
upon a vital spot of the body of Mooney.chanroblesvirtualawlibrary chanrobles virtual law library

It is true that the frame of the back of the chair stood between the deadly knife and the back of Mooney; but what it
prevented was the wounding of said Mooney in the back and not his death, had he been wounded. It is the preventing of
death by causes independent of the will of the perpetrator, after all the acts of execution which should produce the felony
as a consequence had been performed, that constitutes frustrated felony, according to the law, and not the preventing of
the performance of all the acts of execution which constitute the felony, as in the present case. The interference of the
frame of the back of the chair which prevented the defendant-appellant from wounding Mooney in the back with a deadly
knife, made his acts constitute an attempt to commit murder; for he had commenced the commission of the felony directly
by overt acts, and did not perform all the acts of execution which constitute the felony by reason of a cause or accident
other than his own voluntary desistance.chanroblesvirtualawlibrary chanrobles virtual law library

The foregoing considerations force us to the conclusion that the facts alleged in the information and proved during the trial
are not sufficient to constitute the crime of frustrated murder, but simply the crime of an attempt to commit
murder.chanroblesvirtualawlibrary chanrobles virtual law library

Johnson and Street, JJ., concur. chanrobles virtual law library

G.R. No. 78781-82 October 15, 1991

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
PEDRO RAVELO, JERRY RAVELO, BONIFACIO "PATYONG" PADILLA, ROMEO ASPIRIN, NICOLAS GUADALUPE
AND HERMIE PAHIT, accused-appellants.

The Solicitor General for plaintiff-appellee.

Robert J. Landas for acussed-appellants.

GUTIERREZ, JR., J.:p

The accused Pedro Ravelo, Bonifacio "Patyong" Padilla, Romeo Aspirin, Nicolas Guadalupe and Hermie Pahit appeal the
two (2) judgments of the Regional Trial Court of Tandag, Surigao del Sur, Branch 27, which convicted them of murder of
one Reynaldo Cabrera Gaurano and of frustrated murder of Joey Lugatiman.

In the murder case (Criminal Case No. 1187), each of the accused was sentenced to serve the penalty of reclusion
perpetua and to severally pay an indemnity of P25,000.00 to the mother of the victim. In the frustrated murder case
(Criminal Case No. 1194), each of them was sentenced to serve the penalty of imprisonment ranging from eight (8) years
and one (1) day of prision mayor as minimum to ten (10) years of prision mayor as maximum.

The accused were all charged with kidnapping with murder and kidnapping with frustrated murder. However, the trial court
found accused-appellants guilty only of murder and frustrated murder as convicted. The accused Josen Ravelo and Jerry
Ravelo are still at large.

The present petition was originally one that sought the issuance of a writ of habeas corpus. The Court instead resolved to
treat it as an appeal in view of the near capital nature of the crimes for which the appellants were convicted.

The accused-appellants are all membersof the Civilian Home Defense Force (CHDF) stationed at a checkpoint near the
airport at Awasian in Mabua, Tandag,Surigao del Sur. The prosecution alleged that they stopped the two (2) victims for
questioning on the suspicion that the latter were insurgents or members of the New People's Army. (NPA).

In Criminal Case No. 1187, the accused-appellants were charged with having committed kidnapping with murder in the
following manner:

That at approximately 6:30 o'clock in the evening, May 21, 1984, in Barangay Dawis, San Agustin Sur, municipality of
Tandag, province of Surigao del Sur, Philippines and within the jurisdiction of this Honorable Court, the above-named
accused, PEDRO RAVELO, JERRY RAVELO, BONIFACIO `Patyong' PADILLA, ROMEO ASPIRIN, NICOLAS
GUADALUPE, HERMIE PAHIT and JOSEN RAVELO, conspiring, confederating, and mutually helping each other did,
then and there, wilfully, unlawfully and feloniously take, pick-up, kidnap by meansof force, one REYNALDO CABRERA
GAURANO, a minor, while the latter was walking along Tandag Bridge at barangay Dawis, San Agustin Sur, then the
above-named accused carried away the said, Reynaldo Cabrera Gaurano to barangay Awasian and detained, kept and
locked him in a room at the house of Pedro Ravelo, one of the accused herein, from 7:00 o'clock in the evening, May 21,
1984 to 4:00 o'clock dawn, May 22, 1984, or a period of 10 hours under restraint and against the will of said minor,
Reynaldo Cabrera Gaurano and that the above named accused during the said period of kidnapping, maltreated and
refused to release said Reynaldo Cabrera Gaurano, and while on the same period of time at about 4:00 o'clock dawn,
May 22, 1984, at barangay Awasian, Tandag, Surigao del Sur and within the jurisdiction of this Honorable Court, the
above-named accused, Pedro Ravelo, Jerry Ravelo, Bonifacio `Patyong' Padilla, Romeo Aspirin, Nicolas Guadalupe,
Hermie Pahit, and Josen Ravelo, conspiring, confederating, and mutually helping each other, armed with a pistol,
armalites, and carbines, with intent to kill, with treachery and evident premeditation did, then and there wilfully, unlawfully
and feloniously, assault, attack, cut, slash, and burn, the said Reynaldo Cabrera Guarano, hitting and inflicting upon the
latter, the following wounds or injuries:

1. Blisters formation noted all over the body reddish in color, which easily peel off on pressure; containing clear fluids; with
hemorrhagic reaction beneath blisters;
2. Swollen face with contusion and hematoma formation; loosening of hair notes; right ear missing with circular incised
wound around;

3. Incised wound 24 cm. length around the neck cutting the esophagus, pharynx, arteries and veins; up to the 2nd cervical
bone in depth;

4. Contusions and hematomas noted anterior chest wall, abdomen and at the back; upper and lower extremeties of
different sizes and forms. (Rollo, pp. 8-9)

In Criminal Case No. 1194, they werecharged with kidnapping with frustrated murder committed as follows:

That on or about 1:00 o'clock in the morning on May 22, 1984 in barangay Awasian, municipality of Tandag, province of
Surigao del Sur, Philippines and within the jurisdiction of this Honorable Court, the above named accused PEDRO
RAVELO, HERMIE PAHIT, BONIFACIO PADILLA, ROMEO ASPIRIN, NICOLAS GUADALUPE, JERRY RAVELO AND
JOSEN RAVELO, conspiring, confederating and mutually aiding one another armed with the deadly weapons such as
pistols, armalite and carbine, did then and there wilfully, unlawfully and feloniously by means of force and at gun point
stop the hauler truck of the South Sea Merchant Company which was on the way to Tandag, Surigao del Sur from sitio
Lumbayagan, Barangay Maticdom, municipality of Tandag, Surigao del Sur and kidnap one JOEY LUGATIMAN, who is
on board the said hauler truck by forcibly taking said Joey Lugatiman and carry him to the house of accused Pedro Ravelo
then to the Airborne Headquarters at Mabua, Tandag, Surigao del Sur, and while thereat and in pursuance of their
conspiracy, with intent to kill, with evident premeditation and treachery and by taking advantage of their superior strength
being armed with deadly weapon did then and there wilfully, unlawfully and feloniously assault, by hitting and inflicting
upon the latter the following wounds or injuries:

1. Small abrasion and hematoma, both wrist and left ankle;

2. Multiple small abrasions, chest and right neck and right ankle;

3. Multiple small abrasions and small hematoma, back;

4. Abrasion, upper left lips. (Rollo, pp.18-19)

The trial court based its findings on evidence presented by the prosecution at the trial proper which commenced several
months after the informations were filed. The prosecution evidence in Criminal Case No. 1187 are quoted from the
judgment, thus:

Witness Edilberto Salazar, 17 years old, student and resident of Tandag, testified that he knew all the accused Pedro
Ravelo, Bonifacio Padilla, Romeo Aspirin, Nicolas Guadalupe and Hermie Pahit. On May 21, 1984 at 5:30 in the
afternoon, he was with a certain Diego Gallardo and Reynaldo Cabrera Gaurano walking from Dawis to Dagocdoc to
attend a dance. The dance not having began being too early yet, they decided to go back to Dawis. On their way back
while crossing the Tandag bridge across the Tandag river, the accused Pedro Ravelo, Jerry Ravelo, Josen Ravelo,
Bonifacio Padilla, Romeo Aspirin, Hermie Pahit and Nicolas Guadalupe stopped them by pointing their guns. He and
Diego Gallardo ran away towards a group of old junk tractors and hid there. He saw Reynaldo Gaurano chased by all the
accused. He saw Reynaldo Gaurano ran up to the house of a certain Fernando Cortes which was just opposite the
tractors they were hiding, and which was just across the road in front of the house of Fernando Cortes. Reynaldo Gaurano
was caught up in the house by Jerry Ravelo, Bonifacio Padilla and Nicolas Guadalupe. He saw Reynaldo Gaurano forced
and dragged down to a waiting pick-up on the road by Jerry Ravelo, Bonifacio Padilla and Nicolas Guadalupe. Reynaldo
Gaurano was loaded on the pick-up owned and driven by the accused Pedro Ravelo. All the accused, together with
Reynaldo Gaurano rode on the pick-up towards the Tandag airport at Awasian. After Reynaldo Gaurano disappeared, he
and Diego Gallardo went to the police and reported the matter that Reynaldo Gaurano was brought by the accused to the
airport.

On May 23, 1984, he was with the group who exhumed the body of Reynaldo Gaurano under a mango tree near the
Tandag airport and pointed to the investigator that that was the body of Reynaldo Gaurano with blisters, without ear and a
big wound on the neck. Placed on the mat the cadaver was brought to the Mata Funeral Parlor at Tandag, Surigao del Sur
in that morning of May 23, 1984.

Witness Francisco Villasis, 48 years old, farmer and resident of Awasian, testified that he knew very well all the accused
and that he personally saw them in the early dawn of May 22, 1984. He declared that he was at the Awasian creek near a
mango tree catching crabs with the use of a "panggal", a bamboo knitted trap. From a distance of around twenty meters
away, he saw a man hanging from the mango tree over a fire. He saw the accused Jerry Ravelo placed fire on the
hanging person and the accused Romeo Aspirin placed a burning torch made of dried coconut leaves at the back of the
hanging person. The man hanging was not known to him. The man hanged was also surrounded by Pedro Ravelo, Josen
Ravelo, Nicolas Guadalupe, Hermie Pahit and Bonifacio Padilla. For five minutes watching, he saw the clothing and body
burned, he heard the moanings of the person and heard the laughters of the accused. After witnessing that horrible
incident he went home hurriedly. On cross examination he further stated that he saw for the first time the man already
hanging under a fire (sic).

Witness Joey Lugatiman, 22 years old and resident of Dawis, Tandag, testifies that all the accused are known to him for a
long time. On May 21, 1984, with ten companions they went to a place in the interior called Maticdum, Tandag, Surigao
del Sur. After five hours stay, he, together with his companions left Maticdum past midnight for Tandag on a loggingtruck.
As soon as they passed by the airport, they were stopped by the accused and were told to go down from the truck for
questioning. He was brought to the house of the accused Pedro Ravelo near the checkpoint. He was asked if he was
Joey Lugatiman and if he knew Reynaldo Gaurano. There at the headquarters, he was asked if he was an NPA. For
almost an hour stay at the headquarters he was boxed, kicked and manhandled by Pedro Ravelo and by the other
accused with the use of their guns until he became almost unconscious. Then, from the headquarters at Mabua on that
early dawn he was brought again back in the same pick-up to Awasian airport, to the house of Pedro Ravelo and then to
the house of Bonifacio Padilla. Before proceeding to the house of Bonifacio Padilla, he saw his friend Reynaldo Gaurano,
one meter away, already weak with bruises on his face, hands tied at the back and with a gag around the mouth, moving
as if in the act of trying to free himself, with a bleeding mouth. When he reached the house of Bonifacio Padilla, he was
chained and tied to the wall near the window of the house. Alone, he peeped through the window and saw Reynaldo
Gaurano hanging up the mango tree with fire below him. He heard the moanings of Reynaldo Gaurano while hanging
from the mango tree thirty meters away from the window of the house of Bonifacio Padilla. He saw Pedro Ravelo and
Josen Ravelo set fire on the body of Reynaldo Gaurano. At 5:00 o'clock a.m. May 22, 1984, when alone, after being told
that he would be killed at 9:00 o'clock in the evening at the Awasian bridge, he escaped by being able to untie himself at
10:00 o'clock in the morning of May 22, 1984. He reported what happened to him and to Reynaldo Gaurano, to his
parents and then to the police authorities and later submitted for physical examination on that day, May 22, 1984 and
finally was investigated on May 23, 1984 in connection with this case. On cross examination he said that he knew all the
accused. He knew that all the accused are members of the CHDF.

Witness Zosima Gaurano, 46 years old, market vendor, a native of Tandag, testified that she is the mother of Reynaldo
Gaurano. Her son Reynaldo Gaurano left Cebu City on April 12, 1984 for Tandag. On May 22, 1984 she received a
telegram from her sister Remedios Fernandez that her son Reynaldo is dead. She left for Tandag upon receipt of the
telegram and arrived at Tandag on May 24, 1984. Upon her arrival she went to the Mata Funeral Parlor and then she
found the dead body of her son Reynaldo Gaurano inside the coffin and she saw many parts of the body of her son with
burns. She suffered moral damages and other expenses to the tune of P64,350.00.

Witness Remedios Cabrera Fernandez, widow, meat vendor and resident of Tandag testified that Reynaldo Gaurano is
her nephew because his mother Zosima is her younger sister. Her nephew Reynaldo Gaurano was here in Tandag on
vacation. On May 20, 1984, with two companions, Diego Gallardo and Edilberto Salazar, he failed to go home to the
house of her sister. After the second day, May 22, 1984 at around 5:00 o'clock in the afternoon Edilberto Salazar and
Diego Gallardo informed her that Reynaldo Gaurano was kidnapped by Pedro Ravelo and his men. The message was
relayed to her to Atty. Buenaflor and to Col. Jesus Hermosa. On the following day, May 23, 1984, Col. Hermosa, with
other officers inspected the house of Pedro Ravelo and the nearby surroundings at Awasian. She was made to Identify an
exhumed body at the back of the house of Pedro Ravelo near the Mango tree. She saw the dead body of her nephew
Reynaldo Gaurano without an ear, the neck was almost cut, entire body with blisters, and naked. His body was pictured
and later on brought to the Mata Funeral Parlor at Tandag. She requested Dr. Romeo delos Reyes of the Tandag
Provincial Hospital to conduct an autopsy and after which the dead body of Reynaldo Gaurano was embalmed to await
the arrival of the mother from Cebu City.

Witness Dr. Romeo delos Reyes, a senior Resident physician of the Tandag Provincial Hospital testified that he
conducted an autopsy on the dead body of a certain Reynaldo Gaurano, Exhibit "A", at the Mata Funeral Parlor. He found
blisters formation caused by fire burns throughout; the body was reddish and skin peels off easily; swollen face,
hematoma, contusion, losing of hair, wound around the neck; and these injuries could have been inflicted 36 to 48 hours
before the autopsy. Death certificate, Exhibit "B" was issued. The burns and the injuries above stated were suffered
before Reynaldo Gaurano died.

Witness Roberto Awa, a photographer of the Similar Studio who, for fifteen years, is a photographer at Tandag, testified
that he took the pictures of a dead man inside a hole upon orders of Col. Hermosa at Awasian near the airport. He took
pictures as shown in Exhibit "C", "C-1"; he took 8 positions of the dead body. While yet inside the holeexhibit "D" and as
shown in Exhibit "E" and "F", that was the dead body of Reynaldo Gaurano near the mango tree; Exhibit "G", while the
cadaver was inside the hole and Exhibit "H" is the picture while the body was lying on the mat.

Witness Cresenciano Rulona, Police Investigator of the Tandag Police Force, testified that at around 8:00 o'clock in the
morning of May 23, 1984, he was the assistant team leader of the group that proceeded to Tambacan, Awasian, Tandag
to look for and inspect the place where a certain Reynaldo Gaurano was kidnapped. Under a mango tree and about 25
meters near the house of Bonifacio Padilla the group recovered a P.25 coin, a small comb, two zippers and burned pieces
ofcloth and burned coconut leaves, together with new excavated soil. Further search under the mango tree led to the very
place where the body of Reynaldo Gaurano was buried. At around 10:00 o'clock a.m., May 23, 1984, they exhumed the
dead body which was buried under a depth of around one meter under the mango tree which was around 25 meters from
the house of Bonifacio Padilla and around 150 meters from the house of Pedro Ravelo. The cadaver was first Identified to
be that of Reynaldo Gaurano by Edilberto Salazar. A photographer was called and pictures were taken of the dead body
of Reynaldo Gaurano from the hole and then the body was brought to the surface and placed on the mat. Not one of the
accused was present during the period while the group was searching and exhuming the body of Reynaldo Gaurano. The
body of Reynaldo Gaurano shows signs of burns and several injuries, and was finally brought to the funeral parlor at
Tandag.

As shown by the evidence, Reynaldo Cabrera Gaurano died on May 22, 1984 at Awasian, Tandag, Surigao del Sur. His
death was the result of the shock secondary to the wound around the neck, Exhibit "A", and occurred while he was
hanged by the accused with hands tied to a branch of a mango tree. Sufferings of pains, through his moanings, were
augmented and aggravated by the tortures inflicted as vividly seen through the removal of the right ear, the wound around
the neck and placing of fires on his body, and the fire below his feet. Not only were these acts brutal and cruel but also
heartless and savage acts of the accused, devoid of an iota of sympathy, who, instead, were happy and delighted to see
the miseries suffered by their victim. Further, it was shown that they helped one another or conspired with one another in
torturing with the use of their firearms, and in killing Reynaldo Gaurano. (Rollo, pp. 10-16)

Meanwhile, the prosecution evidence in Criminal Case No. 1194 are as follows:

The evidence of the prosecution consisted of the testimonies of the witnesses and the Medical Certificate. Witness Joey
Lugatiman, 22 years old, resident of Dawis, Tandag, Surigao del Sur testified that he personally knew all the accused for
quite a long time. On May 21, 1984 with ten companions he went to a place called Maticdom, Tandag, Surigao del Sur.
After staying at Maticdum for five hours he went home on board on a cargo truck. On the way near the Tandag Airport
they were stopped by all the accused. They, including himself, were ordered by the accused Pedro Ravelo to come down
from the truck. Then he was brought to the nearby house of Pedro Ravelo and there he was asked if he was Joey
Lugatiman and if he knows Reynaldo Gaurano.

His companions were ordered to proceed to Tandag while he was loaded on a service pick up driven by the accused
Pedro Ravelo. He was brought by all the accused to the Headquarters of the Airborne Company at Mabua, Tandag,
Surigao del Sur. In the Headquarters of the Airborne, he was interrogated if he was an NPA. After hearing his denial of
being an NPA he was boxed, kicked and pistol whipped by the accused Pedro Ravelo and his co-accused. He was
manhandled by the accused with the use of the firearms for almost an hour. Later he was brought back again to Awasian
Airport to the house of Pedro Ravell (should be Ravelo) then to the house of Bonifacio Padilla. But before proceeding to
the house of Bonifacio Padilla, he saw his friend Reynaldo Gaurano one meter away, already weak with bruises on the
face, hands, tied at the back and gagged around the mouth. Reynaldo Gaurano could not talk and he was moving in the
act to free himself and with a bleeding mouth. Upon arriving in the house of Bonifacio Padilla he was chained and hogtied
near the open window by the companions of Pedro Ravelo. Not long after, through the window, he saw Reynaldo
Gaurano hanging up the mango tree and a big fire was set on the ground. He heard the groaning and moaning of
Reynaldo Gaurano. He saw Pedro Ravelo and Jerry Ravelo setting fire on the right and left side of Reynaldo Gaurano
with the use of dried coconut leaves. He saw all the accused surrounding and watching the hanging and burning of
Reynaldo Gaurano. It was Pedro Ravelo who cut the right ear and who also slashed the neck of Reynaldo Gaurano. He
could not shout because he was afraid. While lying down after he saw the horrible incident he fell asleep. At around 5:00
o'clock in the morning of May 22, 1984 he awoke and saw Bonifacio Padilla bringing nylon line with which he was tied to a
piece of wood; while Nicolas Gaudalupe gagged him, and he was blind folded by Hermie Pahit. While the three were
about to leave him behind, he heard them saying that they will kill him at the Awasian bridge at 9:00 o'clock in the evening
of May 22, 1984. When he was left alone in that house he successfully freed himself. He jumped out of the window and
escaped via the nipa palm grove. As consequences of the manhandling of the accused, he suffered several bruises on
the breast, at the back and his mouth. He was physically examined by a doctor in the Provincial Hospital on that day,
Exhibit "A", "A-1" and "A-2" which is Exhibit "1" and "2", "1-A", and "1-B" for the defense. On cross examination, he
testified that he escaped at around 10:00 o'clock in the morning from the house of Bonifacio Padilla, and that he knew all
the accused to be members of the Civilian Home Defense Force (CHDF). He testified that the house of Pedro Ravelo and
the house of Bonifacio Padilla is around one hundred (100) meters away from each other.
Witness Dr. Petronila Montero testified that she is a resident physician of the Provincial Hospital, and on May 22, 1984
she examined Joey Lugatiman and she issued a medical certificate, Exhibit "A". All her findings were placed down in
Exhibit "A". Upon being cross-examined, she testified that the hematomas, small abrasions will not cause death. When
she examined Joey Lugatiman, she found that he was weak and haggard caused by the injuries mentioned in Exhibit "A".

Witness Emilio Espinoza, 68 years old, farmer, resident of Awasian, Tandag testified that while he was tendering his
carabao near the house of Bonifacio Padilla he was surprised to see Joey Lugatiman, wearing blue t-shirt and a jogging
pants jumped out of the window of the house of Bonifacio Padilla, twelve meters away from him. He saw Joey Lugatiman
ran towards the nipa palm then ran towards the airport. He knew Joey Lugatiman because during the barrio fiesta Joey
used to stay in his house at Awasian.

Witness Bernardo Frias, 21 years old, farmer and resident of Awasian, testified that on May 22, 1984 he was in Maticdom
together with Joey Lugatiman, Miguel, Gregorio Urbiztondo, Leonildo Naragas, Jesus Espinoza, Mauricio Estoya, the
driver and a helper from 5:00 o'clock in the afternoon and started to go home at around 11:00 o'clock p.m. for Tandag. On
the way, near the airport, he, together with his companions on a logging truck was stopped by the accused Pedro Ravelo,
Jerry Ravelo, Josen Ravelo, Hermie Pahit, Bonifacio Padilla, Romeo Aspirin and Nicolas Guadalupe. They were ordered
to come down and were made to identify each other. He saw Bonifacio Padilla dragged Joey Lugatiman to the house of
Pedro Ravelo. It was Pedro Ravelo who later brought Joey Lugatiman to the pick-up. They were ordered to board on the
truck except Joey Lugatiman who loaded in the pick-up driven by Pedro Ravelo. Then, the accused Bonifacio Padilla
ordered the group to proceed to Tandag while Joey Lugatiman was left behind. He reported to the police authorities that
his companion Joey Lugatiman was being held under arrest at Awasian and that he knows all the accused before this
incident. (Rollo, pp. 21-24)

The accused-appellants were not able to or did not present evidence on their behalf, nor were they themselves able to
confront the prosecution witnesses who testified against them except through a counsel de oficio appointed by the trial
judge to represent them namely, Atty. Pretextato Montenegro and Atty. Florito Cuartero, in place of their defense counsel,
Atty. Eliseo Cruz.

The continued absence of Atty. Cruz, a Quezon City-based lawyer who perennially made requests for postponements by
telegrams stating his inability to appear for health reasons, led to the refusal by the accused-appellants to be present at
the trial. The accused-appellants alleged that Atty. Cruz left an instruction that they will not submit themselves to trial
without him.

The accused-appellants now maintain that they did not "waive" their right to be present during the trial because their
refusal was not done by their own free will but only in accordance with their lawyer's instructions.

The Court notes that Atty. Cruz resorted to several other delaying tactics aside from sending telegraphic notes requesting
for postponements. He filed a petition for change of place of detention and venue for trial before this Court, which denied
it; a first petition for habeas corpus on the ground that they should be tried by a military tribunal, which petition was
denied; and a motion for new trial on the ground of lack of due process due to improper waiver of presence at the trial.
This motion for new trial was granted to give the accused-appellants a last chance to be heard and be present. Still, the
defense counsel failed to appear and so did the appellants.

In their second petition for habeas corpus which we now treat as an appeal, Atty. Cruz failed to file the required brief. The
Court then appointed a new counsel de oficio for the accused-appellants.

Accused-appellants raised the following alleged errors of the trial court:

THE LOWER COURT'S FINDING THAT ACCUSED-APPELLANTS ARE GUILTY OF FRUSTRATED MURDER HAS NO
BASIS IN FACT AND IN LAW.

II

THE LOWER COURT ERRED IN CONCLUDING THAT ACCUSED-APPELLANTS WAIVED THEIR RIGHTS TO BE
PRESENT DURING THE TRIALS AND TO PRESENT EVIDENCE TO PROVE THEIR INNOCENCE (Brief for Appellants,
pp. 10-11; Rollo, p. 144)
It is contended that there can be no frustrated murder committed in Criminal Case No. 1194 absent any proof of intent to
kill, which is an essential element of the offense of frustrated murder.

Appellants aver that the trial court erroneously based its conclusion on the fact that when Lugatiman was tied and gagged,
the latter heard one of the accused-appellants utter that they would kill him at Awasianbridge.

The trial court made the following inference which we find to be erroneous:

To this Court the real intention to kill Joey Lugatiman was made manifest at 5:00 in the morning of May 22, 1984 when the
accused Bonifacio Padilla together with Hermie Pahit and Nicolas Guadalupe tied his hands to the wall with a nylon line
and gagged him; and when the accused said they will kill him (Joey Lugatiman) at 9:00 o'clock p.m. at Awasian bridge.
These final and parting words uttered to Joey Lugatiman eloquently expressed intent to kill. Killing, however, was not
consummated because Joey Lugatiman was able to escape at around 10:00 o'clock in the morning of May 22, 1984.
(Rollo, p. 25)

The facts and evidence on record do not show anything from which intent to kill could be deduced to warrant a conviction
for frustrated murder. A mere statement by the accused stating that Lugatiman would be killed is not sufficient proof of
intent to kill to convict a person of frustrated murder.

In a crime of murder or an attempt or frustration thereof, the offender must have the intent or the actual design to kill (US
v. Burns, 41 Phil. 418 [1921]) which must be manifested by external acts. For there to be frustrated murder, the offender
must perform all the acts of execution that would produce the felony as a consequence, but the felony is not thereby
produced by reason of causes independent of the will of the perpetrator. A verbal expression that Lugatiman would be
killed sixteen (16) hours after such statement was made is not sufficient to show an actual design to perpetrate the act.
Intent must be shown not only by a statement by the aggressor of the purpose to kill, but also by the execution of all acts
and the use of means necessary to deliver a fatal blow while the victim is not placed in a position to defend himself.
However, after the performance of the last act necessary, or after the subjective phase of the criminal act was passed, the
crime is not produced by reason of forces outside of the will of the aggressor. (People v. Borinaga, 55 Phil., 433 [1930]).

Tying the victim's left leg with a chain on a 2" by 3" piece of wood and leaving him inside the house of accused-appellant,
Bonifacio Padilla are not acts that would result in death. These were done only to restrain his liberty of movement for the
period of time the accused-appellants were busy hanging and burning the body of Reynaldo Gaurano some thirty (30)
meters away from where Lugatiman was left. Also, tying Lugatiman's hands behind his back and his whole body to the
wall, and blindfolding him were for the purpose of restraining his liberty until the evening of May 22, 1984 came.

Accused-appellants also maintain that the injuries sustained by Lugatiman from the manhandling at the Headquarters of
the Airborne Company were not fatal as stated by the prosecution's expert witness, Dr. Petronila Montero; hence, there
can be no frustrated murder. This is supported by the records (Exhibit "A-2", Records of Criminal Case No. 1194, p. 21;
TSN, June 4, 1985, pp. 24-26) Lugatiman did not lose consciousness as a result of the blows he sustained (TSN, May 31,
1985, p. 49, Record, p. 115)

It is worthy to note that the trial court, in concluding the existence of frustrated murder, did not even use as its basis, the
manhandling of Lugatiman. The trial court in fact concedes that the real purpose of the manhandling or torture was to
have Lugatiman admit and confess his being a member of the New People's Army (NPA) and the activities of the NPA's. It
was the statement made by the accused-appellant NicolasGuadalupe that Lugatiman would later be killed, that was the
basis of the court for inferring the commission of frustrated murder. According to the trial court, murder was not committed
because of the timely escape. Escape from the aggressors cannot establish frustrated murder without first showing that
the aggressors intended to kill and that they really attacked the victim.

Under the circumstances, accused-appellants could not even be convicted of an attempt to commit murder. There was no
commencement of the criminal act by over acts which have a direct connection with the crime of murder intended to be
committed. As stated earlier the manhandling, express statement of purpose, and the restraint of liberty were not such as
to put the victim in danger of an imminent death. The small abrasions and hematomas of the victim resulting from the
torture by the accused were not mortal. After the victim was restrained of his liberty immediately before Gaurano was
killed, he was able to watch how Gaurano was burned hanging upside down from a mango tree near the Awasian bridge.
Due to his fatigue and extreme weakness, he was even able to lie down and sleep after looking at the horrible incident.
(TSN, May 31, 1985, pp. 22-23)

During the long period of time Lugatiman was informed that "he would be killed" and was left behind (5:00 in the morning)
until he was able to escape at 10:00 in the morning, it was not certain whether or not appellants would really kill him as
they did to Gaurano. Anything could have happened in between. There was no distinct evidence to prove that the accused
appellants were really decided on killing him at the time specified.

The records show that Lugatiman himself was not sure that the accused-appellants would pursue it.

The uncertainty can be seen from Lugatiman's testimony on cross-examination, thus:

xxx xxx xxx

Q. Why did you say a while ago that "I will be the next one to be hung and to be killed by Ravelo and his group"?

A. I was just afraid that I will be the next.

Q. Now, when you saw these persons burning the body of Reynaldo, did you hear also what the people around Reynaldo
were talking of?

A. What I heard was their laughing and the moaning.

Q. And you heard their laughing?

A. Yes.

Q. Why did you know that they were laughing?

A. Because I heard it.

Q. Their appearance you can see?

A. Their appearance is clear because there is a big light.

Q. And your name was never mentioned that you will be the next to be hung?

A. I did not hear them saying.

Q. There were also no other people like you who were apprehended or being detained by Pedro Ravelo and his group?

A. I did not see.

Q. You only saw Reynaldo Gaurano, including yourself detained by Ravelo and his group on May 21, in the early morning
rather, on May 22, 1984 dawn?

A. Yes. (TSN, May 31, 1985, pp. 54-55)

After a review of the allegations of the information in Criminal Case No. 1194 and the evidence received and admitted by
the court a quo, the Court is of the view that accused-appellants are not guilty of frustrated murder but only the crime of
slight physical injuries. There is evidence to show that the several small abrasions on the chest, right neck and right ankle
of Lugatiman as well as the hematoma at his back was due to the hitting by a rough, hard object like a butt of a gun. The
prosecution witness, Dr. Montero testified that the injuries were inflicted by some other persons aside from the victim, and
needed medical treatment of four (4) to five (5) days to avoid infection. (TSN, June 4, 1985, pp. 21-26)

Accused-appellants aver that there was no deliberate waiver on their part of their right to be present at the scheduled
hearing dates because they "did not appear to know the import of their decision not to appear in the trials." According to
them, the judge should have explained to them the meaning and the consequences of their decision not to appear.

The issue of due process had been fully considered by this Court when we acted on the habeas corpus petition. In our
May 8, 1988 resolution, we outlined in detail the reasons for our finding of dilatory tactics on the part of the petitioners and
their counsel and why the lower court correctly proceeded with trial.
After stating the various incidents characterizing the initial proceedings and the trial of the case, we stated:

xxx xxx xxx

The petitioners are members of the Civilian Home Defense Force (CHDF) who have been convicted of murder and
frustrated murder committed under particularly brutal circumstances. A notice of appeal was filed thirty-nine (39) days
from the promulgation of judgment and was clearly out of time. A motion for new trial was also characterized by plainly
dilatory tactics in its handling.

Were it not for the effectivity of the present Constitution, there is a likelihood that the petitioners would have been
sentenced to capital punishment. The near-capital nature of the crimes for which the petitioners were convicted and the
rather unusual circumstances surrounding the trial of the two cases and the failure to appeal, however, call for a closer
look at the judgments of conviction. This can best be done by calling for all the records of the case including the
transcripts of stenographic notes. If, after the consideration of the cases as appealed cases, there appears to have been a
miscarriage of justice or a need for further evidence, the case can always be remanded for further proceedings as
instructed. Otherwise, the judgment will have to be affirmed or reversed on the basis of all the present records. (Rollo, p.
73)

For purposes of this decision, we emphasize that in the morning of May 30, 1985, the date of the first day of the trial
proper, or after five (5) postponements, the accused-appellants came to court without their counsel of record, Atty. Eliseo
Cruz. Atty. Cruz allegedly sent a telegram through one Mrs. Delfina Cruz indicating that he met a vehicular accident and
requesting a resetting of the hearing date. The several instances in which the Court received similar telegrams including
one where he claimed a "very sick heart ailment" led the trial court to doubt and disregard the last request of the defense.
The court had earlier categorically stated that it wouldentertain no further requests for postponement.

The court, in deciding to push through with the trial at 2:00 in the afternoon of May 30, 1988 and in appointing two (2)
counsels de oficio for the accused-appellants did not only consider the right of the accused to speedy trial which should
not be abused by the defense by willful delays, but more so, the rights of public justice. (Mercado v. Santos, 66 Phil. 215
[1938]). Despite their new counsels who appeared to be doing their best, the accused-appellants insisted on absenting
themselves stating that they cannot and would not appear without Atty. Cruz and allegedly for fear that they would be
harassed by members of the New People's Army. At this point, the Court informed them of (1) the importance of the
appointment of competent counsels de oficio considering the gravity of the offense and the difficulty of the questions that
may arise during the trial; and (2) the fact that there is no legal obstacle to proceeding with the reception of prosecution
evidence in their absence.

Absence at the trial did not deprive the accused-appellants of cross-examination except the right to personally confront
the prosecution witnesses face to face. Notwithstanding their absence, they were represented by the counsels de
oficio who took turns in cross-examining each of the prosecution witnesses.

Accused-appellants also maintain that they did not actually refuse to present evidence on their behalf. They argued that
the counsels de oficio misapprehended a telegram of Atty. Cruz which stated that he (Atty. Cruz) cannot attend the June
20 and 21, 1985 trial because he had a prior engagement in another court in Ilocos Sur on those dates. They also
contend that their failure to appear and present evidence was "simply because of their misplaced trust and obedience to
the instructions of their counsel, Atty. Eliseo Cruz, whose negligence and lack of vigilance in the handling of the cases,
despite the seriousness of the crimes charged, had caused injustice to the accused-appellants." They ask this Court to
take their case as an exception to the rule that a client shall suffer the consequences of negligence or incompetence of his
counsel.

The actual desire of the accused-appellants to testify and present other evidence is not manifest from a thorough review
of the records of the case. If it were true that they wanted to present evidence, they should have taken advantage of the
opportunity to be present, to be heard and to testify in open court with the assistance of their appointed lawyers. As a
matter of fact, they were able to convince the lower court to grant them a chance to have a new trial. However, they still
failed to make use of their last opportunity. They cannot now claim that they were denied their right to be present and to
present evidence. This Court upholds the lower court's position that the accused-appellants were given more than
generous time and opportunity to exercise their constitutional rights which should not be overemphasized at the expense
of public policy.

The circumstances of the case do not preclude the application of the rule that a client is bound by the acts of his counsel
who represents him. Nevertheless, at the time when the lower court appointed the de oficio counsels, the court already
had ample notice of the futility of waiting for Atty. Cruz to come and appear for the defense. From the time the accused-
appellants were represented by Atty. Montenegro and Atty. Cuartero, their decision not to attend the trial nor to present
evidence is clearly a product of their own free will.

WHEREFORE, the appealed judgments in Criminal Cases Nos. 1187 and 1194 are hereby, respectively, affirmed and
modified as to the crime proven. The accused-appellants PEDRO RAVELO, BONIFACIO "PATYONG" PADILLA, ROMEO
ASPIRIN, NICOLAS GUADALUPE and HERMIE PAHIT are hereby sentenced:

(1) To serve the penalty of reclusion perpetua and to pay the increased indemnity of FIFTY THOUSAND PESOS
(P50,000.00) in Criminal Case No. 1187 solidarily; and

(2) To serve the penalty of arresto menor in Criminal Case No. 1194.

SO ORDERED.

Fernan, C.J., (Chairman), Feliciano, Bidin and Davide, Jr., JJ., concur.
[G.R. No. 118573-74. May 31, 2000]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RICARDO FRANCISCO y CUPCUPIN, REYNALDO FRANCISCO
y CUPCUPIN, TEODORO FRANCISCO y CUPCUPIN, ANTONIO SIOCO, accused-appellants.

DECISION

GONZAGA_REYES, J.:

This is an appeal interposed by accused Ricardo, Reynaldo, and Teodoro, all surnamed Francisco, and Antonio Sioco
from the Joint Decision[1] dated November 7, 1994 of the Regional Trial Court (RTC) of Malabon, Metro Manila, Branch
170 in Criminal Cases Nos. 12196-MN & 12197-MN finding all the accused guilty beyond reasonable doubt of the crimes
of murder and frustrated murder.

Two (2) Amended Informations[2] for Murder and Frustrated Murder were filed against accused Ricardo Francisco y
Cupcupin, Reynaldo Franciso y Cupcupin, Teodoro Francisco y Cupcupin, Antonio Sioco, Cesar Nuestro [3], Efren
Francisco, Jaime @ Daga[4]and John Doe @ Nonoy[5] as follows:

Amended Information for Murder

"That on or about the 27th day of October, 1992, in the Municipality of Malabon, Metro Manila, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, armed with a bladed weapon, conspiring, confederating
together with all the other accused, who are all at large, with intent to kill, evidence (sic) premeditation and abuse of
superior strength, did, then and there, willfully, unlawfully, and feloniously attack, assault and stab with the said weapon
one SERAFIN MANGALI, JR., hitting the victim on the chest, thereby inflicting upon the victim stab wound which caused
his immediate death."

Amended Information for Frustrated Murder

"That on or about the 27th day of October, 1992, in the Municipality of Navotas, Metro Manila, Philippines and within the
jurisdiction of his Honorable Court, the above-named accused, armed with a bladed weapon, conspiring, confederating
and helping with one another, together with all the accused who are all at large, with evidence premeditation and abuse of
superior strength, did, then and there, willfully, unlawfully and feloniously attack, assault and stab with the said weapon
one ARIEL DE DIOS y FRANCISCO, hitting the latter on his abdomen and left finger, thereby performing all the acts of
execution which would produce the crime of Murder, but did not produce the same for reason of cause independent of the
will of the accused, that is due to the timely and able medical attendance given to said victim which prevented his death."

Upon arraignment, accused Ricardo Francisco (RICARDO), Reynaldo Francisco (REYNALDO), Teodoro Francisco
(TEODORO), Efren Francisco (EFREN)[6] and Antonio Sioco (ANTONIO)[7] with the assistance of counsel, individually
entered a plea of not guilty.

EFREN underwent a psychiatric examination[8] and was diagnosed as suffering "from psychosis or insanity classified as
schizophrenia rendering him incompetent to stand court trial". The criminal cases filed against him were therefore
suspended and he was ordered confined at the National Center for Mental Health in Mandaluyong for treatment. [9]

The RTC summarized the facts as culled from the testimonies of the witnesses presented by the prosecution and by the
defense as follows:

"On October 27, 1992 at about midnight, Ariel De Dios and Serafin Mangali went to the house of Manny Pascual at Naval
Street, Navotas. After a short talk at the gate, the three proceeded in a nearby store on board a jeep. They ordered San
Miguel Pale Pilsen for each one of them, sat on a bench and continued their conversation. Shortly thereafter, a man
identified as Efren Francisco, who was sitting on the right side of Ariel spat at the latter. Ariel asked Manny why said man
was acting like that and whether he knew the man. Manny told Ariel not to mind the man. The three continued their
conversation but Ariel got irked when the man spat at his right arm again. Ariel then told Manny that they better go home
as he does not like what the man was doing. Ariel paid the bill and told Manny and Serafin to board the jeep. Ariel then
talked with the man and asked the latter why he spat at him. The man did not answer and just kept on smiling. Ariel then
hit the man on the nape and the latter ran away. With Serafin on the wheel, the three proceeded to Mannys house. After
talking for about five minutes at the gate, Serafin and Ariel boarded on the jeep while Manny went inside the house.
Ariel De Dios narrated the incidents that took place thereafter as follows: that Serafin maneuvered the jeep along M.
Naval on their way to Malabon; that upon passing by the gate of Mannys house, Ariel saw a man, who turned out to be
accused Antonio Sioco, a few meters from the gate pointing at them and saying "Heto na sila, heto na sila" that
immediately thereafter, the headlights of a coming jeep that was occupying the lane they were then traversing were turned
on; that Serafin stepped on the brakes and their jeep went off at a distance of about two feet from the coming jeep; that
there were about seven persons on board the other jeep, the driver, two were seated in front, one on the left front fender
and two or three at the back that the one on the fender, who turned out to be Ricardo Francisco was the first to alight
followed by the rest; that Ricardo went towards Serafin, grabbed the latter by the neck and said "Putang ina mo, bumaba
ka diyan"; that Serafin held on the steering wheel; and resisted the pull; that another person who came from the jeep
grabbed Serafin by the arm and tried to loosen Serafins grip on the steering wheel; that another person, who turned out to
be accused Teodoro Francisco came armed with a knife-like instrument and stabbed Serafin on the left armpit; that Ariel
got stunned and was holding on the bar looking on what was happening when somebody, who turned out to be Reynaldo
Francisco, suddenly pull his right arm and ordered him to get down; that when Ariel was in the act of alighting from the
jeep, his right foot already out, Reynaldo stabbed him on the left part of the stomach; that Ariel asked Reynaldo why he
stabbed him but the latter got stunned (napatanga) and did not answer; that Ariel then pushed Reynaldo, ran at the rear
portion of the jeep and told Serafin to run ("Pare, takbo na tayo"); that at that instance, Serafin was being mauled beside
the jeep; that Ariel ran towards Mannys gate, knocked twice and called Mannys name twice; that Teodoro and Efren
chased Ariel and the latter proceeded on the pathway going to the garage at the back but after two or three steps in the
pathway which was very dark, Ariel went back to the street where he came from and he saw Serafin sprawled on the
ground; that Ariel also saw Teodoro, after which, he ran as fast as he can towards the back garage and called for Mannys
father; that when no one was answering, Ariel scaled on the wall, went up the roof, knocked on the window and asked for
help; that Mannys father went out together with his daughter and Ariel told them to help Serafin as he was being mauled;
that Mannys father went out and returned after a while informing Ariel that Serafin was okay and was brought to the
hospital by Manny and that Ariel was thereafter brought at the Manila Doctors Hospital.

Emmanuel Pascual testified that after Serafin and Ariel left, he proceeded towards their main door; that he was still
knocking at their door when he heard Ariel called his name twice; that he walked casually towards the gate and opened it;
that he saw people in front of the gate and somebody pointed to the right; that upon looking to the right, he saw Ariels jeep
and he walked faster towards the jeep; that he saw a body under the jeep and he ran; that while he was running, Teodoro
who was a few feet away from the jeep told him "Pati lokoloko pinapatulan nila"; that there were other persons in the area
but he was able to recognize only two, Boy and Tenok who turned out to be Ricardo and Reynaldo, respectively; that he
saw Serafin full of blood; that he asked Serafin where Ariel was but Serafin did not answer; that he carried Serafin inside
the jeep and brought him to Saint Josephs Clinic; that there were no facilities in said clinic so he brought Serafin to
Martinez Hospital; that he made a few phone calls after which, the doctor informed him that Serafin was already dead;
and the he noticed that the two front teeth of Serafin were broken.

Dr. Ludivino J. Lagat, the NBI Medical Specialist who conducted an autopsy on the body of Serafin Mangali testified that
the deceased sustained a linear abrasion on the right cheekbone and stab wound on the left side of the body below the
armpit; that the stab wound was 2.0 cm big and 12 cm deep having one sharp and one blunt extremity directed backward
medially and downward, entering the thoracic cavity and penetrating the lower lobe of the left lung and that 1600 cc of
blood was recovered inside; that the stabwound could have been caused by one bladed sharp pointed instrument and is
the cause of death of Serafin Mangali.

Serafin Mangali, Sr. testified that his son, the deceased Serafin Mangali, Jr. was an employee of the Department of
Agrarian Reform during his lifetime with an annual income of P22,524.00 (Exhibit "E") that he spent P29,500.0 for the
funeral services of his son (Exhibit "F") and the additional sum of P15,000.00 for miscellaneous expenses during the
wake; and that he will pay P50,000 for his share in the legal services in these cases.

Dr. Joaquin Tan, a dentist at the Department of Agrarian Reform testified that on May 8, 1992, he made a thorough dental
examination on the deceased Serafin Mangali Jr. and as per dental record of the latter, his upper and lower teeth were
complete (Exhibit "G"); and that he issued a certification to that effect on March 16, 1994 (Exhibit "G-1").

Dr. Dominador Chansiopen of the Manila Doctors Hospital identified the Medical Record of Ariel De Dios (Exhibit "H") and
testified that he attended to Ariel De Dios at 1:30 oclock in the early morning of October 27, 1992; that the latter sustained
wound at the mid clavicular line post gastric stomach, perforating the colon through and through, caused by a stab thrust,
which required operation for gastric repair or gastrophy, and repair of the transverse colon or transverscolontraphy; that
the said wound if left untreated would have caused the patients death; that he further noted lacerated wound in Ariels
finger, abrasion in the side of the abdomen and in the small area of the hand.

On the other hand, the defense witnesses confirmed the presence of the accused Antonio Sioco and the Francisco
brothers at the scene of the crime.
Raul Sosa, a compadre of accused Teodoro and Ricardo Francisco claims to have witnessed the incident while he and
Rogelio Pineda were waiting for a ride. He testified that Teodoro Francisco, upon alighting from the jeep heading for
Navotas, immediately approached the driver of the jeep heading for Malabon, whom he came to know later to be Serafin
Mangali, and pulled out the latter while Reynaldo Francisco approached the passenger, whom he came to know later to
be Ariel De Dios, and thereupon stabbed the latter; that Ariel alighted and ran away; that Teodoro dropped off Serafin and
chased Ariel but failed to overtake the latter who turned to the next street; that Teodoro returned together with Manny
Pascual whom he met along the way; that there was a commotion on the jeep but his attention was focused on Teodoro
and Ariel; that he did not see Efren Francisco during the incident; and that he saw Antonio Sioco on the way to the jeep.

Rogelio Pineda corroborated the testimony of Raul Sosa and further testified that while Teodoro was chasing Ariel,
Serafin alighted and went at the back of the jeep where he met Ricardo; that the two had an argument and moments later,
Ricardo stabbed Serafin; that when Serafin sprawled on the ground, Ricardo disappeared and the latters companion
scampered away; that during the stabbing, Efren was standing nearby while Antonio Sioco was in front of the jeep; and
that Ricardo, Efren and Antonio left together.

For his part, accused Antonio Sioco testified that he was with Teodoro, Reynaldo, Ricardo and some other companions
drinking beer in a store when Teodoro was informed by a saleslady that their brother Efren was kicked and hit at the nape
by three persons who left on board a vehicle; that Teodoro thereupon talked into going after the said three persons to
confront them why they did such thing; that the Franciscos and some of their companions hurriedly boarded a jeep while
he was left behind; that upon hearing the skidding sound of the jeep coming to a halt, he followed his companions; that
upon arrival at the scene, he saw Ariel De Dios standing beside the jeep in confrontation with Reynaldo and Ricardo while
Serafin was still in the steering wheel in confrontation with Teodoro and two others; that when Ariel was about to hit
Reynaldo, the latter stabbed the former; that Ariel who thereafter ran was chased by Teodoro; that Serafin alighted from
the jeep and a commotion ensued and when Serafin went near Ricardo, the latter stabbed Serafin.

Ricardo Francisco claims that upon hearing the report that their brother Efren was ill-treated by three persons, Teodoro
told him and their brother Reynaldo to stay behind and not to follow him as he will just talk to the persons concerned but
he and Reynaldo insisted in going; that during the confrontation, Ariel was about to hit his brother Reynaldo with a black
hard thing when Reynaldo stabbed Ariel; that Ariel who thereafter ran was chased by Teodoro; that Serafin alighted from
the jeep and attacked him with a bottle of Coke which landed on his left shoulder; that when Serafin was about to draw
something from his waist and uttered "I will kill you, I will kill you", he immediately stabbed him (Serafin); that he had a
knife because he was peeling a mango during their drinking spree and he forgot to leave it.

Teodoro Francisco further corroborated the testimony that Reynaldo merely acted in self-defense when he stabbed Ariel.
He likewise stated that he ran after Ariel in order to help the latter."[10]

The RTC found the accused guilty beyond reasonable doubt of the crimes charged and rendered judgment on November
7, 1994, the dispositive portion of which reads:

"WHEREFORE, in view of the foregoing, judgment is hereby rendered finding accused Teodoro, Reynaldo and Ricardo,
all surnamed Francisco, as well as Antonio Sioco guilty beyond reasonable doubt of the crime of Frustrated Murder in
Criminal Case No. 12196-MN and of Murder in Criminal Case No. 12197-MN, and hereby sentences each one of them as
follows:

1. In Criminal Case No. 12196-MN, to suffer an indeterminate penalty of eight (8) years and one (1) day of prision mayor
as minimum to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal as maximum;

2. In Criminal Case No. 12197-MN, to suffer the penalty of reclusion perpetua;

3. To indemnify, jointly and severally, the heirs of Serafin Mangali, Jr. the sum of P44,500.00 as actual damages plus the
further sum of P50,000.00 for the death of said Serafin Mangali, Jr. and the cost of suit.

Let the accused be credited with whatever preventive imprisonment they have undergone in connection with these cases.

Let the records of these cases be sent to the archives pending the trial of accused Efren Francisco and the arrest of all
the other accused."[11]

In so ruling, the court a quo found that there was a conspiracy as the accused acted pursuant to a common criminal
design as the acts performed by them individually thereafter were concerted and were so connected as to unequivocally
show the existence of a conspiracy; and that the accused took advantage of superior strength in executing their criminal
design in that Teodoro sought the assistance of his companions and despite the superiority in number, the conspirators
even armed themselves with knives.

Hence, the present appeal where the Francisco brothers RICARDO, REYNALDO and TEODORO, assign the following
errors allegedly committed by the trial court:

"1. THE COURT A QUO ERRED IN RELYING ON POSITIVE IDENTIFICATION OF THE ACCUSED-APPELLANTS AS
THE PERPETRATORS OF THE CRIMES;

2. THE COURT A QUO ERRED IN GIVING FULL FAITH AND CREDIT TO TESTIMONIES OF PROSECUTION
WITNESSES ARIEL DE DIOS AND EMMANUEL PASCUAL, DESPITE THEIR IMPROPER MOTIVES, BIASES AND
INTERESTS IN TESTIFYING AGAINST THE ACCUSED-APPELLANTS;

3. THE COURT A QUO ERRED IN LENDING CREDENCE TO PROSECUTION'S VERSION RATHER THAN ON THE
DEFENSE VERSION ON HOW DECEASED SERAFIN MANGALI, JR., WAS STABBED;

4. THE COURT A QUO ERRED IN IGNORING ACCUSED-APPELLANT RICARDO FRANCISCO'S JUDICIAL

ADMISSION OF BEING THE ASSAILANT OF THE DECEASED SERAFIN MANGALI, JR.;

5. THE COURT A QUO ERRED IN FINDING ACCUSED-APPELLANT TEODORO FRANCISCO THE ASSAILANT OF
DECEASED MANGALI, JR.;

6. THE COURT A QUO ERRED IN FINDING ACCUSED-APPELLANT REYNALDO FRANCISCO THE ASSAILANT OF
ARIEL DE DIOS;

7. THE COURT A QUO ERRED IN NOT ACQUITTING THE ACCUSED-APPELLANTS ON THE GROUND OF
REASONABLE DOUBT;

AND ASSUMING IN GRATIA ARGUMENTI, THAT ACCUSED, OR SOME OF THEM, ARE GUILTY:

8. THE COURT A QUO ERRED IN FINDING CONSPIRACY AMONG THE ACCUSED-APPELLANTS;

9. THE COURT A QUO ERRED IN FINDING THAT THE QUALIFYING CIRCUMSTANCE OF ABUSE OF SUPERIOR
STRENGTH ATTENDED THE COMMISSION OF THE TWO OFFENSES;

10. THE COURT A QUO ERRED IN NOT APPRECIATING THE MITIGATING CIRCUMSTANCE OF;

A. PHYSICAL DISABILITY;

B. LACK OF INTENT TO COMMIT SO GRAVE A WRONG;

C. OFFENDED PARTY'S PROVOCATION IMMEDIATELY PRECEDED THE ACT.

IN IMPOSING THE PROPER PENALTIES;

11. THE COURT A QUO ERRED IN FINDING COLLECTIVE CRIMINAL LIABILITY OF THE ACCUSED-APPELLANTS;

12. CONVICTING THE ACCUSED-APPELLANTS FOR FRUSTRATED MURDER IN CRIMINAL CASE NO. 12196-MN,
DESPITE THE ABSENCE OF ALLEGATION OF INTENT TO KILL IN THE INFORMATION."[12]

Accused-appellants Francisco brothers contend that the testimony of lone prosecution witness, Ariel De Dios (ARIEL)
needs corroboration. They argue that his testimony is "erratic and unreliable" for being contrary to the evidence.
Moreover, ARIEL was a biased, partial and ill-motivated witness for he was impelled to get even with the accused-
appellants for the injuries he suffered.

Accused-appellants further point out that ARIELS identification of the accused-appellants cannot be characterized as
positive for it was unreliable considering that it was made immediately after the warrantless arrest of TEODORO,
RICARDO and REYNALDO who were brought to ARIEL's bedside at the Manila Doctor's Hospital for identification, which
was "pointedly suggestive" as the identities of the accused-appellants were "fed" by the police officers who arrested them.
ARIEL was unfamiliar with the physical features of accused-appellants who being brothers, bear a striking resemblance
with one another and it would be extremely probable that ARIEL could have mistaken one for the other in making his
identification. Moreover, ARIELs view was obstructed by SERAFIN's assailant since ARIEL was seated in the front
passenger seat of the jeep at the moment he was being attacked and assaulted by two of the assailants. His attention
was therefore focused on the latter and on his own safety and survival. In addition, accused-appellants claim that since
the headlights of both jeeps were on, the sudden flash of glaring light from the headlights of the approaching vehicle
would have caused temporary blindness on the passengers of the other vehicle thus making it highly improbable for
ARIEL to see and identify the occupants of the other jeep.

Accused-appellants also attack the veracity of the testimony of Emmanuel Pascual (MANNY). They claim that MANNY
lied when he testified that he did not know EFREN when, by his own admission, accused-appellants Francisco brothers
were his neighbors since he "was a kid." The sudden decision to leave the eatery can be explained by the fact that
MANNY may have warned and alerted ARIEL of the presence and possible retaliation from the Francisco brothers who
were then drinking inside the eatery.

Accused-appellants maintain that SERAFIN was stabbed not while he was seated at the steering wheel but while he was
standing beside the jeep and engaged in a heated argument with the accused-appellants after he alighted therefrom.
According to them, the testimony of Raul Sosa[13] reveals that RICARDO, John Doe and TEODORO approached
SERAFIN telling the latter to get off the jeep and angrily demanded an explanation why the latter's group maltreated
EFREN. After SERAFIN alighted from the jeep, ARIEL ran away in an attempt to flee from the assault of RICARDO and
John Doe. When RICARDO and John Doe stabbed SERAFIN, TEODORO was already in pursuit of the fleeing ARIEL. It
is therefore improbable that TEODORO stabbed SERAFIN because he was then pursuing the fleeing ARIEL.

The theory of the defense is supported by RICARDOs testimony where RICARDO admitted having stabbed SERAFIN in
open court which, under Section 4, Rule 129 of the Rules of Court is a judicial admission that does not require proof.

The above-mentioned theory is also alleged to be supported by the medico-legal findings as can be seen from the nature
and location of the injury sustained by SERAFIN. The direction of the wound was "horizontal," "directed backward
medially and downward" which indicates that the assailant is in a position higher than the victim. If the sharp portion was
located "medially", it means that the assailant delivered the fatal thrust at a horizontal, swinging motion, from a slightly
higher position going downward towards the left armpit of SERAFIN. Considering the nature and location of the stab
wound of SERAFIN, the relative positions of TEODORO, RICARDO and John Doe, the only direction TEODORO could
have delivered the fatal stab wound is sideways in an upward motion, in which case, the direction of the stab wound
should have been upward and not downward as found by the medical report. Besides, TEODORO could not have inflicted
the fatal stab wound as he was unarmed. Except for the lone testimony of ARIEL, witnesses ANTONIO and RICARDO
were unanimous in stating that TEODORO was not holding a knife.

Accused-appellants further claim that the prosecution's theory of conspiracy does not find support in law and evidence.
The mere fact that accused-appellants were companions in a drinking spree does not make them conspirators. There was
no clear and convincing proof that their concerted acts were prompted by a common criminal design in the stabbing of the
two victims. Accused-appellants never planned to kill the victims. The fact that they looked for the person who allegedly ill-
treated EFREN is not indicative of the intention to kill the victims; rather, it is in full accord with the common experience of
mankind and it was a natural reaction of TEODORO, being the eldest of the Francisco brothers, to look for those who
maltreated his brother.

Anent the qualifying circumstance of taking advantage of superior strength, numerical superiority is not the sole criterion.
Even the sparse evidence established that there was only one knife used during the two stabbing incidents; this knife was
the one RICARDO admitted he used in stabbing SERAFIN, the same knife he previously used to peel mangoes while the
group of accused-appellants were drinking inside the eatery. There being no abuse of superior strength, the RTC should
have made the conclusion that the killing was not murder but homicide and only the culprit who actually perpetrated the
crime is liable.

The accused-appellants likewise claim that the RTC erred in not appreciating the mitigating circumstances of physical
disability, lack of intent to commit so grave a wrong, and the offended party's provocation immediately preceding the act.
RICARDO has a limp due to polio, which should be considered as a physical defect analogous to Article 13 (8) or (10) of
the Revised Penal Code. Moreover, the fact that the perpetrators had no intention to kill anybody considering that the
stabbing arose out of uncontrolled impulse rather than a deliberate design to take the victims' lives should also mitigate
their liability. Finally, ARIELs admission that he hit the nape of EFREN should be considered as constituting sufficient
provocation that impelled the perpetrators to do what they did.
As regards the conviction of Frustrated Murder, the Information is defective in the absence of an allegation of intent to kill
pursuant to Section 6, Rule 110; the allegations, and not the caption, in the indictment determine what offense is charged.
In murder cases, the presence or absence of the allegation of "intent to kill" in the Information becomes decisive in
determining the proper offense. The Joint Decision violates Section 14, Article III of the Constitution which is a basic right
of the accused to be informed of the nature and cause of accusation in view of the conviction of accused-appellants for
Frustrated Murder, in the absence of the allegation of intent to kill in the Information. Moreover, the stab wound sustained
by ARIEL in his abdomen was insufficient to cause his death; in fact, he was still able to run and climb the roof of a
house.[14]

Accused-appellant Antonio Sioco (ANTONIO) filed a separate appellant's brief raising a single assignment of error, to wit:

"THE TRIAL COURT ERRED IN FINDING ACCUSED-APPELLANT ANTONIO SIOCO GUILTY AS A CONSPIRATOR IN
THE CRIME OF FRUSTRATED MURDER AND MURDER."[15]

ANTONIO strongly disagrees with the finding of the court a quo that there was conspiracy as all the accused acted
pursuant to a common criminal design. He argues that TEODORO's plan was only to talk to the persons who "hit and
kicked" their brother; that there was no agreement or common design because when TEODORO asked the group to go
and look for the man who harmed their brother, he was addressing nobody in particular; and that appellant ANTONIO
himself and two other members of their drinking group were left behind. On the conspiracy angle, ANTONIO further
contends that the uncorroborated testimony of ARIEL that the former uttered the words "Heto na sila, heto na sila" or "yan
na sila, ayan na sila" borders on physical impossibility aside from the fact that no other witness confirmed such fact.
ANTONIO allegedly opted to be left behind in the store and followed the group only when both vehicles were already at
the scene of the incident and the protagonists were already shouting at each other. [16]

On the other hand, the appellee, through the private prosecutor and the Office of the Solicitor General, maintain that the
guilt of the accused-appellants has been proved beyond reasonable doubt. The appellee avers that ARIEL positively
identified the accused-appellants as his and SERAFINs assailants. ARIEL was able to identify the accused-appellants as
the assailants since the street where the stabbing occurred was well lighted. His testimony is supported not only by the
physical evidence but also by the medico-legal report. Contrary to accused-appellants claim, the records disclose that
ARIEL was not biased and not motivated to falsely testify against the accused-appellants. On the contrary, ARIELs
testimony is convincing and trustworthy and is sufficient to convict herein accused-appellants. Likewise unworthy of any
weight is RICARDOs admission that he stabbed SERAFIN because it was made not only to back up his claim of self-
defense but also to absolve TEODORO from any responsibility for the death of SERAFIN. It cannot therefore be
considered as an admission against interest. As regards accused ANTONIO, he is guilty as a conspirator in the
commission of the crimes charged inasmuch as the testimonies of the prosecution witnesses show that the accused-
appellants had a common design to kill SERAFIN and ARIEL.

It is further contended by the appellee that the accused-appellants were properly convicted of murder. The RTC correctly
appreciated the qualifying circumstance of abuse of superior strength, which attended the commission of the crimes. The
accused-appellants not only relied on their numerical superiority but the two, RICARDO and TEODORO, were also armed
with deadly weapons when they attacked SERAFIN and ARIEL.

Finally, the accused-appellants claim that the RTC should have considered physical disability, lack of intent to commit so
grave a wrong and provocation as mitigating circumstances deserves scant consideration. First, there was no showing
that RICARDOs physical defect i.e. he had a limp caused by polio, restricted his means of defense or action or
communication with his fellow beings. Second, lack of intent to commit so grave a wrong cannot be appreciated when the
wounds inflicted are serious enough to cause and in fact caused the crime charged. Thirdly, the murder and frustrated
murder committed by the accused-appellants is in great disparity with the provocation made by SERAFIN and ARIEL.
Moreover, ample time had lapsed from the time of the provocation to the time of the killing. Besides, the provocation did
not originate from ARIEL and SERAFIN but from EFREN, the brother of three of the accused-appellants.[17]

After a careful and meticulous review of the evidence on record, we find no cogent reason to depart from the RTCs
judgment convicting RICARDO, REYNALDO and TEODORO.

In their first assigned error, the accused-appellants assail ARIELs identification of them and claim that his identification
was not positive.

We are not persuaded.

Accused-appellants allegation that the police induced ARIELs identification of the accused-appellants at the hospital is
belied by the transcripts which read:

"Q:....What did the police say when they brought to you the suspect?

A:....The police did not say anything just the doctor, sir.

Q:....What did he say?

A:....If I can recognize or what. He asked me how many where they. My name and where I live, sir.

Q:....After that?

A:....After that the police brought in the suspects which I positively identified, sir.

Q:....In what manner did you make your identification?

A:....I pointed at them, sir.

Q:....Told them what?

A:....I pointed my finger, sir (witness pointing his finger)

Q:....To whom?

A:....First the one in yellow shirt then the two other guys, sir.

Q:....After pointing your finger to the one in yellow shirt did you say anything?

A:....No. The policeman said "do you know this guy?" "Where they the ones who assaulted you?," and I said "Yes" and I
pointed the three of them, sir.

Q:....But during that time and day you never identified anyone among the three who stabbed you?

A:....I did. I pointed the one in yellow shirt. I recognized him because he was the one who stabbed me, sir.

Q:....That day the rest are all involved in the assault against you?

A:....Yes, sir."[18]

The fact that ARIEL was in the hospital when he identified the accused-appellants will not affect his identification of them
for there is no law, which requires a police line-up as essential to a proper identification provided that the identification
was not suggested to the witness by the police.[19] As seen from the above, there is nothing in the testimony of ARIEL that
shows that the police suggested that the suspects presented to him were his assailants. The police merely asked him
whether he could recognize any of them and whether any of them were his assailants. He answered positively by pointing
his finger at them. He could not have been mistaken in the identification of the accused-appellants considering that the
street where he and SERAFIN were assaulted was well lit. [20] His identification of the accused-appellants was
corroborated by the testimony of MANNY who identified the accused-appellants as being present in the vicinity where the
crimes were committed.[21] Significantly, ARIEL also positively identified each of the accused-appellants in court.[22]

In their second to sixth assigned errors, the accused-appellants attack the veracity of the testimony of ARIEL and claim
that he was not a credible witness. They also fault the RTC for not believing the witnesses for the defense.

We have carefully gone over the records and find nothing in his account of the events that would show that his testimony
suffers from incredibility. ARIEL testified as follows:

"ATTY. NARVASA:
Q:....Where you able to identify or see how many people were in the jeep?

A:....Inside the jeep? (asking)

Q:....(Atty. Narvasa) Yes.

A:....Seven or maybe more because there were three in front the driver, two persons in the passenger seat, one was
seated on the fender outside and maybe two or three more, sir.

Q:....Again.

A:....repeating two in front, excluding the driver, one at the fender, and maybe two to three more at the back of the jeep
sir.

Q:....When you said there was person on the fender, what fender is this? Whose jeep?

A:....Theirs, sir

Q:....The jeep that blocked your path?

A:....Yes, sir.

Q:....Left side of the fender, right side, front or back?

A:....Left side of the front fender, sir.

Q:....When this jeep blocked your way, what happened to your jeep?

A:....It stopped. Serafin stepped on the brakes and the engine went off, sir.

Q:....Then what happened?

A:....Thereafter, the occupants of the jeep started coming out and the person who was seated on the fender was the first
one to come towards Serafin, sir.

Q:....Who was driving at this time?

A:....Serafin, sir.

Q:....You are saying the one who was seated outside the jeep?

A:....He was the first one who came towards Serafin sir.

Q:....What happened?

A:....The persons inside the jeep immediately followed the one seated along the fender grabbed Serafin by the neck sir.
He grabbed Serafin by the neck then he uttered "Putang Ina mo, bumaba ka diyan, Putang ina mo Bumaba ka diyan."

Q:....You said this person who was seated on the fender was the first who came towards Serafin and grabbed Serafin by
the neck. Did you know him at that time?

A:....No, sir.

Q:....But if you see him, would you be able to identify him?

A:....Yes, sir.
Q:....If you look around the courtroom, is he present in court?

A:....Yes, sir.

Q:....Will you point to him.

A:....(witness pointing to a man whom when asked his name answered Ricardo Francisco)

Q:....You said he grabbed him (Serafin) by the neck. Could you demonstrate to us how he grabbed him (Serafin) by the
neck.

A:....(the interpreter acting as Serafin-witness put his right hand on the nape and then the left hand was on the left
shoulder of the interpreter) Then he pulled Serafin towards him, sir.

ATTY. CALALANG:

Your honor, I think what was being demonstrated is grabbing at the base of the neck, it is not at the neck but grabbing
more on the shoulder portion at the base near the neck.

ATTY. NARVASA:

The witness is probably the best person.

ATTY. CALALANG

We have seen the demonstration.

COURT:

Counsels observation is that the demonstration he touched the shoulder not at the neck. You make the correct
demonstration.

WITNESS:

(repeating the demonstration)

ATTY. NARVASA:

I would like to point out that the portion of the hand, small finger, was placed closed at the neck.

ATTY. CALALANG:

Base of the neck the greater part is laid on the shoulder portion, Your Honor.

ATTY. NARVASA:

It is for the appreciation of the Hon. Court.

Q:....Would you tell us what was Serafin doing at that time?

A:....He was resisting, sir.

Q:....Would you tell us what was his position?

A:....He was holding the wheel, both hands, because he was resisting the pull, sir.
Q:....What happened?

A:....Then another person came from the jeep and he grabbed Serafin by the arm, sir.

Q:....What arm?

A:....Left arm, sir. He was trying to loosen Serafins grip on the steering wheel, sir.

Q:....Then what happened?

A:....There was another one who came, who was then armed with a thing which looked like knife and stabbed Serafin
below the armpit, sir.

Q:....You said somebody came and was trying to get Serafins grip off the steering wheel?

A:....Yes, sir.

Q:....Do you know that person?

A:....No, sir.

Q:....If you see him, would you be able to identify him?

A:....Yes, sir.

Q:....Would you look around the courtroom and see if he is present.

A:....He is not around right now, sir.

Q:....You said a person came and pulled out a knife and suddenly stabbed Serafin. Do you know that person then?

A:....No, sir.

Q:....If you see him, would you be able to identify him?

A:....Yes, sir.

Q:....Would you tell us if he is present here?

A:....Yes, sir.

Q:....Will you point at him.

A:....He is the one, sir. (pointing to a person whom when asked his name answered Teodoro Francisco).

Q:....While this was happening, what were you doing?

A:....I was stunned because I was holding on the bar and I was looking what was going on, sir.

Q:....Then what happened?

A:....Then somebody just suddenly pulled my right arm and ordered me to get down from the vehicle, sir.

Q:....And what happened then?

A:....After he pulled me my right foot was out of the jeep, then he stabbed me sir.
Q:....Where did he stab you?

A:....Here at the left part of my stomach, sir.

Q:....Then what happened?

A:....After stabbing me, I asked him why did he stab me, sir.

Q:....Did he answer?

A:....He did not answer, sir. He got stunned "napatanga", got shock, that is why I was able to push him away, sir.

Q:....Then what happened?

A:....I was looking for Serafin, sir. I saw Serafin because I was looking for him to find out what happened to him, sir.

Q:....You said that this person who stabbed you, did you know him then?

A:....No, sir.

Q:....If you see him again, would you be able to identify him?

A:....Yes, sir.

Q:....Look around the courtroom and see if this person is present in court.

A:....Yes, sir. He is the one (pointing to a person whom when asked his name answered Reynaldo Francisco)

Q:....After you said he stabbed you and you were able to push him away, where did you go?

A:....At the place near the rear of the jeep which we were then driving, sir.

Q:....You mean you alighted from the jeep?

A:....Yes, sir.

Q:....While you were on that position, what happened? What did you see? What did you notice?

A:....I looked at Serafin and told him, "Pare, takbo na tayo, sir.

Q:....And were you able to see Serafin?

A:....Yes, sir.

Q:....What was happening to Serafin?

A:....He was standing beside the jeep being mauled and I even heard him say "Tama na, tama na", sir.

Q:....After you heard him said "Tama na, tama na", what happened?

A:....Somebody answered from those persons who were mauling him by saying "Anong tama na, anong tama na", sir.

Q:....Then what happened?

A:....I ran towards Mannys jeep, sir.

Q:....Why did you run towards Mannys jeep?

A:....It was the nearest place where I could go, sir.

I knocked twice, sir.

Q:....Did you reach Mannys place?

A:....Yes, sir.

Q:....Why did you have to run?

A:....Because somebody was chasing me, sir.

Q:....Chasing you?

A:....Yes, sir.

Q:....How many were chasing you?

A:....I think there were two of them, sir.

Q:....Who were chasing you?

A:....One came from side of Serafin, sir.

Q:....Who was this guy?

A:....The guy who stabbed Serafin, sir.

Q:....And who was the other guy who was chasing after you?

A:....He was the one right behind the guy who stabbed me, sir.

Q:....Earlier when you were inside the jeep?

A:....Yes, sir.

Q:....Who was this guy?

A:....The person who was at the store spitting, sir."[23]

ARIELs testimony, as found by the RTC, was straightforward, categorical and free from self-contradiction.[24] This Court
has ruled on countless occasions that the trial court is in the best position to determine facts and to assess the credibility
of witnesses as it is in a unique position to observe the witnesses deportment while testifying which opportunity the
appellate court is denied on appeal; this Court will respect the findings and conclusions of the trial court provided that they
are supported by substantial evidence on record.[25] In the case at bar, we find no cogent reason to disturb the trial courts
appreciation of the evidence and find no basis therein to rule that ARIELs testimony was not credible. Besides, the
appellant has failed to prove any improper motive on the part of ARIEL to falsely impute such a terrible crime to herein
accused-appellants. The testimony of a single witness, when credible and trustworthy, is sufficient to convict and must be
given full faith and credence when no reason to falsely testify is shown. [26] The mere fact that the principal witness was the
victim of the crime does not make him a biased witness and does not make his testimony incredible. It would be unnatural
and illogical for him to impute the crime to an innocent person and let the culprit escape prosecution.[27]

At any rate, ARIELs testimony is corroborated by the autopsy report the findings of which are as follows:

"POSTMORTEM FINDINGS
Pallor, generalized.

Abrasion, linear, 2.3 cms. Right cheek.

STAB WOUND, 2.0 cms. Elliptical, clean-cut edges, almost horizontally, sharp medial and blunt lateral extremity, located
at the left mid-axilliary line, level of the 7th intercostal space, 18.5 cms. From the anterior median line, directed
backwards, downward and medially, entering the left thoracic cavity, then penetrating the lower lobe of the left lung,
through and through, then to the left spinuous process of the 8th thoracic vertebrae, with an approximate depth of 12.0
cms.

Brain and visceral organs, pale.

Hemathorax, left, 1,600 c.c.

Stomach, full of rice and other food particles."[28]

ARIEL stated that SERAFIN was seated in the drivers seat with his hands on the steering wheel when he was stabbed.
The location of the stab wound sustained by SERAFIN therefore corresponds to ARIELs testimony for in such position,
most of the left portion of his body, including the portion under his arm, was exposed to anyone situated beside the drivers
door of the jeep.

In their eighth and eleventh assigned errors, the accused-appellants argue that the prosecution did not duly prove the
existence of a conspiracy among them and should not have found them collectively criminally liable.

We disagree.

A conspiracy exists when two or more persons come to an agreement concerning the commission of a crime and decide
to commit it.[29] Proof of the agreement need not rest on direct evidence as the same may be inferred from the conduct of
the parties indicating a common understanding among them with respect to the commission of the offense. It is not
necessary to show that two or more persons met together and entered into an explicit agreement setting out the details of
an unlawful scheme or the details by which an illegal objective is to be carried out. [30] It may be deduced from the mode
and manner in which the offense was perpetrated or inferred from the acts of the accused evincing a joint or common
purpose and design, concerted action and community of interest.[31]

The circumstances leading to the stabbing of SERAFIN and ARIEL clearly and convincingly establishes that a conspiracy
existed between the accused-appellants. When SERAFIN refused to get down from the jeep after RICARDO grabbed his
neck and attempted to pull him out, John Doe[32] attempted to loosen SERAFINs grip on the steering wheel. TEODORO
who was armed with a knife-like instrument then stabbed SERAFIN. At the same time, REYNALDO pulled the arm of
ARIEL and ordered ARIEL to get down from the jeep. While he was getting down, REYNALDO suddenly stabbed him.
ARIEL pushed REYNALDO then ran towards MANNYs gate. TEODORO ran after him but was not able to catch him.
Clearly, each of the accused-appellants performed distinct but simultaneous acts which when pieced together show unity
of purpose and design. It therefore becomes irrelevant as to whom amongst them actually stabbed SERAFIN since in a
conspiracy, the act of one is the act of all.[33]

Accused-appellants claim that it was RICARDO who stabbed SERAFIN and not TEODORO in an attempt to discredit the
testimony of ARIEL is unconvincing and is merely a futile attempt to get TEODORO "off the hook". But even assuming
that ARIEL was mistaken and it was in fact RICARDO who stabbed SERAFIN, TEODORO is still criminally liable for a
conspiracy existed among them.

We however disagree with the finding of the RTC that the accused-appellant ANTONIO was also part of the conspiracy.
"In order to hold an accused liable as co-principal by reason of conspiracy, he must be shown to have performed an overt
act in pursuance or furtherance of the conspiracy. The overt act may consist of active participation in the actual
commission of the crime itself, or it may consist of moral assistance to his co-conspirators by being present at the time of
the commission of the crime, or by exerting moral ascendancy over the other co-conspirators by moving them to execute
or implement the conspiracy."[34] In the case at bench, ANTONIOs participation in the stabbing incident was limited to his
shouting from a distance the words "Heto na sila, heto na sila". In a case involving the phrase "andiyan na" which has a
similar import to the phrase involved herein, this Court ruled that said phrase does not have conclusive conspiratorial
meaning for the supposedly damning utterances are susceptible of varied interpretations. [35] We similarly find that the
facts as established by the evidence do not prove beyond reasonable doubt that he uttered those words in order to give
moral assistance to the Francisco brothers in the absence of any other concrete evidence to prove his complicity.
In their ninth assigned error, the accused-appellants claim that the qualifying circumstance of abuse of superior strength
was not attendant in the commission of the crime.

We rule that the RTC properly appreciated the qualifying circumstance of abuse of superior strength and correctly
convicted the accused-appellants of murder. Clearly, the accused-appellants took advantage of their numerical superiority
and the fact that two of them were armed with bladed weapons when they attacked SERAFIN and ARIEL. [36]SERAFIN
and ARIEL, who were unarmed and were seated inside the jeep without any means of defending themselves, were no
match to their four assailants who overpowered them.

In their tenth assigned error, the accused-appellants fault the RTC for not appreciating as mitigating circumstances
accused RICARDOs physical disability, the accused-appellants lack of intent to commit so grave a wrong and the victims
provocation, which preceded the act. After a careful assessment of the established facts, we find that these circumstances
cannot be appreciated in their favor. The limp allegedly suffered by RICARDO has not been shown to restrict his means of
action, defense or communication with his fellow beings as required by Article 13(8) of the Revised Penal Code as no
evidence was presented in relation thereto other than the bare allegation that he suffered from such a physical defect.
Neither can the circumstance of lack of intent to commit so grave a wrong be appreciated considering that SERAFIN was
stabbed on his torso while ARIEL was stabbed in his stomach with the use of a bladed weapon. The location of the stab
wounds manifest accused-appellants intention to kill and belies their claim that they did not intend to commit so grave a
wrong as that committed.[37] Finally, the mitigating circumstance of sufficient provocation on the part of the offended party
cannot be considered absent proof that the same immediately preceded the act and that it was adequate to excite a
person to commit a wrong, which must accordingly be proportionate in gravity.[38] While ARIELs act of hitting or kicking
EFREN may have provoked the accused-appellants, we find that the retaliation of the accused-appellants was grossly
disproportionate to the provocation made by ARIEL. At any rate, evidence reveals that if there was in fact any
provocation, it was EFREN who started it when he spat at ARIEL several times.

Finally, in their twelfth assigned error, the accused-appellants aver that they cannot be convicted of frustrated murder in
the absence of the allegation of intent to kill in the information for said charge. We hold that the fact that the information
for frustrated murder failed to allege "intent to kill" did not make the information insufficient. An information is sufficient if it
states "xxx the designation of the offense by statute."[39] The information should, whenever possible, state the designation
of the offense by statute besides the statement of the acts or omissions constituting the same and if there is no such
designation, reference should be made to the section or subsection of the statute punishing it[40] In the case at bench, the
information for frustrated murder clearly states that the accused-appellants "armed with a bladed weapon, conspiring,
confederating and helping with one another, together with all the accused who are all at large, with evident premeditation
and abuse of superior strength, did, then and there, willfully, unlawfully and feloniously attack, assault and stab with the
said weapon one ARIEL DE DIOS y FRANCISCO, hitting the latter on his abdomen and left finger, thereby performing all
the acts of execution which would produce the crime of Murder, but did not produce the same for reason of cause
independent of the will of the accused, that is due to the timely and able medical attendance given to said victim which
prevented his death." The information more than substantially satisfies the requirement of designating the offense of
frustrated murder considering that it contains the acts constituting the felony, the name of the crime by statute and the
stage (frustrated) of the commission of the crime by definition. Besides the absence of the averment of intent to kill may
be inferred from the allegation that the stab wound would have caused the death (in this case murder) of the victim. [41]

A felony is frustrated when the offender performs all the acts of execution which would produce the felony as a
consequence but which nevertheless, do not produce it by reason of causes independent of the will of the
perpetrator.[42] Since Dr. Dominador Chansiopens testimony[43] that the wound sustained by ARIEL as a result of the
stabbing was sufficient to cause his death had the wound been left untreated was not rebutted by the defense, we sustain
the ruling of the RTC that the accused-appellants are also guilty of frustrated murder.[44]

For the death of SERAFIN, RICARDO, REYNALDO and TEODORO are liable for P50,000.00 as moral damages [45] and
P50,000.00 as death indemnity[46] to the heirs of SERAFIN as this is in accord with current jurisprudence. RICARDO,
REYNALDO and TEODORO are also liable to the heirs of SERAFIN for funeral expenses amounting to P29,000.00 as
actual damages which were supported by a receipt.[47] Finally, RICARDO, REYNALDO and TEODORO are also liable to
the heirs of SERAFIN for loss of earning capacity. It was established during trial that SERAFIN was twenty-nine (29) years
old[48]at the time he was killed and that he was earning P22, 534.00 per annum[49]. Loss of earning capacity is computed
based on the following formula:[50]
Net Earning life expectancy [2/3 Gross Annual living expenses (
Capacity (x) (80-age at death)] Income (GAI) 50% of GAI )
= x -
x = 2 (80-29) x 22,534.00 - 11,267.00
 3
x = 34 x 11,267.00
Net Earning Capacity = P 383,078.00

Prior to the effectivity of R.A. No. 7659, murder under Article 248 of the Revised Penal Code was punishable by reclusion
temporal maximum to death. Pursuant to paragraph 1 of Article 64 of the Revised Penal Code, RICARDO, REYNALDO
and TEODORO should suffer the penalty of reclusion perpetua, the medium period of the imposable penalty.[51]

The penalty for frustrated murder is the penalty next lower in degree than that prescribed by law for the consummated
felony which in this case is prision mayor maximum to reclusion temporal medium.[52] Applying the Indeterminate
Sentence Law and in the absence of any modifying circumstance, the penalty for frustrated murder should be eight (8)
years of prision mayor minimum as minimum to fourteen (14) years and eight months of reclusion temporal minimum as
maximum.[53]

ACCORDINGLY, the Decision of the Regional Trial Court of Malabon, Metro Manila finding the accused-appellants
Ricardo Francisco y Cupcupin, Reynaldo Franciso y Cupcupin and Teodoro Francisco y Cupcupin guilty beyond
reasonable doubt of the crime of MURDER and FRUSTRATED MURDER is hereby MODIFIED. For the crime of murder,
they are sentenced to suffer the penalty of reclusion perpetua. For the crime of frustrated murder, they are sentenced to
suffer the indeterminate penalty ranging from eight (8) years of prision mayor minimum as minimum to fourteen (14) years
and eight months of reclusion temporal minimum as maximum. They are also ordered to pay the heirs of Serafin Mangali,
Jr. P50,000.00 as moral damages, P50,000.00 as death indemnity, P29,000.00 as actual damages and P383,078.00 for
loss of earning capacity.

Accused-appellant Antonio Sioco is ACQUITTED of the crimes charged based on reasonable doubt and is ordered
released immediately from confinement unless he is held for some other lawful cause.

SO ORDERED.

Melo, (Chairman), Vitug, and Purisima, JJ., concur.

Panganiban, J., on leave.

[1] Penned by Judge Benjamin T. Antonio.

[2] Rollo, pp. 3-6.
[3] At large.
[4] At large.
[5] At large.
[6] Order of July 13, 1993; Record, p. 69.
[7] Order of September 14, 1993; Record, p. 115.
[8] Record, pp. 218-219.

[9] Order of November 3, 1994; Record, p. 292. The Order states:

"In view of the findings of Dr. Norma M. Lazaro of the National Center for Mental Health that accused Efren Francisco was
suffering from psychosis or insanity classified as schizophrenia rendering him incompetent to stand court trial, the
proceedings had in these cases are hereby set aside insofar as said accused is concerned.

The Jail Warden of the Navotas Municipal Jail is hereby ordered to bring the said accused to the National Center for
Mental Health for confinement and treatment.

Meanwhile, the trial with respect to said accused is hereby suspended until such time that he regains mental fitness for
such purpose.
The Director for Mental Health is directed to submit to this Court a periodic report on the progress of treatment of said
accused."
[10] Decision, pp. 2-6.
[11] Decision, pp. 8-9; Rollo, pp. 39-40.
[12] Appellants Brief, pp. 1-3; Rollo, pp. 61-63.
[13] T.S.N., May 26, 1994 at p. 9.
[14] Appellants Brief, pp. 21-155; Rollo, pp. 80-215.
[15] Brief for Appellant Antonio Sioco, p. 1; Rollo, p. 237.
[16] Brief for Appellant Antonio Sioco, pp. 9-27; Rollo, pp. 246-263.
[17] Appellees Brief, pp. 11-44; Rollo, pp. 386-420.
[18] T. S. N., November 16, 1993, pp. 20-21.
[19] People vs. Silvestre, 307 SCRA 68 at p. 82 [1999].
[20] T. S. N., September 7, 1993, p. 16.
[21] T.S.N., November 18, 1993, pp. 8-11.
[22] T.S.N., September 7, 1993, pp. 9 and 11.
[23] T. S. N., September 7, 1993, pp. 8-12.
[24] Decision, p. 7.
[25] People vs. Silvestre, Supra.
[26] People vs. Silvestre Supra at p. 83.
[27] People vs. Siguin, 299 SCRA 124 at p. 134 [1998].
[28] Record, p. 110.
[29] Article 8, Revised Penal Code.
[30] People vs. Sanchez, G.R. No. 118423, June 16, 1999 at p. 18.
[31] People vs. Andales, G.R. No. 130637, August 19, 1999 at p. 11.
[32] Still at large.
[33] People vs. Abdul, G.R. No. 128074, July 13, 1999 at p. 21.
[34] People vs. Berroya, 283 SCRA 111 at pp. 129-130 [1997].
[35] People vs. Cruz, 191 SCRA 377 at p. 384 [1990].
[36] People vs. Felix, 297 SCRA 12 at p. 28 [1998].
[37] People vs. Nepomuceno, Jr., 298 SCRA 450 at p. 461 [1998].
[38] Pepito vs. Court of Appeals, G.R. No. 119942, July 8, 1999 at pp. 16-17.
[39] 6, Rule 110, Rules of Court.
[40] 8, Rule 110, Rules of Court.
[41] People vs. Pilpa, 79 SCRA 81 at p. 86 [1977].
[42] Article 6, Revised Penal Code.
[43] T.S.N., April 21, 1994, p. 5.
[44] People vs. Sabalones, 294 SCRA 751 at p. 799 [1998].
[45] People vs. Andales, Supra at p. 12.
[46] People vs. Sanchez, Supra at p. 23.
[47] Ibid.
[48] See Exhibit D. Record, p. 205.
[49] See Exhibit E. Record, p. 206.
[50] People vs. Silvestre, Supra at pp. 24-25.
[51] People vs. Andales, Supra.
[52] People vs. Ravanes, 284 SCRA 634 at p. 641 [1998].
[53] People vs. Sabalones, Supra at p. 800.
 [G.R. No. 138472-73. August 9, 2001]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee vs. PO3 NOEL PADILLA, accused-appellant.

DECISION
VITUG, J.:
PO3 Noel Padilla has appealed from the decision[1] of the Regional Trial Court of Bataan, Branch 2, in Criminal
Cases No. 5095 and No. 5096, convicting him of murder and frustrated murder.
The twin indictments against appellant for murder and frustrated murder, respectively, read:

"That on or about November 19, 1991, in Morong, Bataan, Philippines, and within the jurisdiction of this Honorable Court,
the said accused, with intent to kill, and with treachery and evident premeditation, did then and there willfully, unlawfully
and feloniously attack, assault and use personal violence upon Apolinario Belmonte by then and there shooting him with a
firearm on the different parts of his body, thereby inflicting upon him mortal wounds which were the direct and immediate
cause of his death, to the damage and prejudice of the heirs of the said Apolinario Belmonte."[2]

"That on or about November 19, 1991, in Morong, Bataan, Philippines, and within the jurisdiction of this Honorable Court,
the said accused with intent to kill, with treachery and evident premeditation, did then and there willfully, unlawfully and
feloniously attack, assault and use personal violence upon Jesus Casaul, Jr., by shooting him with a firearm on the right
cheek, thereby inflicting upon the said Jesus Casaul, Jr., physical injury which could have caused his death, thus the said
accused performing all the acts of execution which would produce the crime of Murder as a consequence, but which
nevertheless did not produce it by reason or cause independent of his will, that is, the timely and able medical attendance
rendered upon Jesus Casaul, Jr., which prevented his death, to the damage and prejudice nevertheless of the said
offended party."[3]
Noel Padilla, a member of the Philippine National Police since 1985, pleaded not guilty to both charges. The cases
were jointly tried and heard, initially, by Judge Vivencio S. Baclig and, later, by Judge Lorenzo R. Silva, Jr.
The facts found by the trial court that led to the conviction of the accused were largely sourced from the eyewitness
account of Jesus Casaul, Jr., the victim in the frustrated murder charge.
On 18 November 1991, around 11:30 p.m., Jesus Casaul, Jr., and his cousin Apolinario Belmonte, the victim in the
murder charge, were partaking of beer and watching a video cassette recording on television inside the Mango Grove
restaurant at the Philippine Refugee Processing Center (PRPC) in Morong, Bataan, when PO3 Noel Padilla together with
several companions, among them Nonong Navarette, arrived at the scene. Navarette approached Casaul and
Belmonte.An ensuing conversation turned into a heated argument. Navarette went back to his group while Padilla, at first
appearing to aim his gun at the television set, suddenly went behind Belmonte and shot him twice at the back of his
head. Padilla next pointed his gun at Casaul who raised his hands pleading for dear life. The accused, unmindful of the
plea, shot Casaul twice, hitting him on the cheek and at the back of his ear.
Belmonte and Casaul were rushed by the owner of the restaurant to the PRPC Hospital.Belmonte did not make it. Dr.
Roberto Luneta who conducted the post mortem examination attributed the death of Belmonte to the gunshot wound that
had penetrated his skull. Casaul survived. Dr. Benjamin Dacula, the medical officer who attended to Casaul at the PRPC
Hospital said that the gunshot wounds sustained by Casaul did not pose any threat to his life. While he had to undergo an
operation for the removal of the slugs embedded on his cheek and the right side of his vertebrae, Dr. Antonio Rafael, the
surgeon, stated there was, however, no vital tissue damaged and the wounds suffered by the victim, without
complications, would not have been enough to kill him.
The defense placed the accused and nine others to the witness stand but, except for the accused, no one attested to
the events that had transpired on the night of the shooting. Padillas own account was synthesized by the trial court; viz:

"On November 18, 1991, he was with Lt. Nieves conducting a mobile patrol. On their way to the municipal station, they
received a radio call from the station. When they reached the station they were informed that there was a stabbing
incident at the PRPC. He was ordered by Lt. Nieves to look into the incident. He had then the handgun which he kept in
his possession even if he was not on duty. He changed to civilian clothes and together with members of the family of the
victims of the stabbing incident proceeded to the PRPC hospital. At the hospital, Noel saw SPO4 Lagundino, the
investigator, who told him that he saw PO3 Tongia at the Shakey's party at the mess hall of the PRPC. When he went to
the party, he saw PO3 Tongia who was with some youngster whom he has not met before. Tongia, offered him a mug of
beer. He left Shakey's at 10:00 o'clock in the evening, more or less. FO3 Tongia invited him together with the young boys
to the picnic grove.
"Upon arriving at the picnic grove, they went directly to the long table. Tongia ordered softdrinks for the young boys and
for Tongia and him two (2) bottles of beer. There were two tables near the store occupied by different groups.

"A betamax was playing very loud. But he was not interested in the show.

"When they ran out of cigarettes, he went to the store to buy. He was joking with the saleslady.Afterwards he introduced
himself to a person who must have noticed his gun. This man introduced himself as Pines Simon. After he returned to the
long table, a group of four (4) males arrived, a group which he saw at Shakey's. One of them occupied the seat near
Tongia and two (2) occupied the seats near him. He was introduced to the three who were homosexuals. After
exchanging jokes, he left the picnic grove for the hospital after telling Tongia about it. Nothing unusual happened before
he left for the hospital.

"x x x x x x x x x

"When he was at the hospital at the lobby when he saw Casaul and his cousin at around 1:00 or 2:00 o'clock being
transferred in an ambulance he heard their names from SPO2 Lagundino. He has not met the victims before.

"On cross-examination, Noel Padilla declared that he was assigned at the Regional Special Action Force in Camp Olivas
in December 1985 up to March 1987. He was the platoon sergeant of the company. They were assigned at civil
disturbance control and went to infiltrated areas. This is an elite force of the police.

"x x x x x x x x x

"He confirmed that he arrived at around 9:00 o'clock in the evening at the PRPC and after ten (10) or fifteen (15) minutes,
he proceeded to Shakey's. x x x

"x x x x x x x x x

"It was only after he had a few drinks of beer with Navarette and his companions and with Tongia that he decided to
proceed to the picnic grove and Shakey's was about to close. Only he, Tongia and three youngsters who were not
homosexuals proceeded to the picnic grove. A few minutes later Nonong Navarette and his three companions
arrived. The three (3) went to their table while Nonong Navarette went to the store. This was the second time he met
Navarette; the first time was at the police station.

"He was not irritated by the loud volume of the betamax; he did not draw his firearm and aimed it at the betamax. He did
not notice if Navarette went to the table occupied by Apolinario Belmonte and Jesus Casaul. He denied that Navarette
complained to him about Apolinario Belmonte. From 10:00 p.m. to 12:00 midnight he was at the picnic grove drinking beer
and conversing with Tongia.He does not know of any reason why Jesus Casaul should point to him as the one who fired
and killed Apolinario Belmonte. He does not know of any reason why Jesus Casaul pointed to him as having fired a gun at
him except that he was the policeman present. He decided to transfer his gun to the front of his pants because according
to Navarette someone quarreled with them the night before.

"On re-direct, Noel Padilla declared that he never met Jesus Casaul, Jr., and Apolinario Belmonte before the incident."[4]
The trial court gave scant value to the testimony of the accused which it described to be uncorroborated, negative
and evasive in character.[5] The court held the shooting of Belmonte and Casaul to have been attended by treachery. The
trial court concluded thusly:

"WHEREFORE, the guilt of the accused for the murder of Apolinario Belmonte and the frustrated murder of Jesus Casaul,
Jr., having been proved beyond reasonable doubt the accused Noel Padilla is hereby sentenced as follows:

"In Crim. Case No. 5095 for the offense of frustrated murder against Jesus Casaul, Jr., the accused Noel Padilla is
sentenced to suffer the indeterminate penalty of six (6) years, one (1) month and eleven (11) days prision mayor as
minimum to twelve (12) years, five (5) months and eleven (11) days reclusion temporal as maximum with the accessory
penalties provided by law, to indemnify the offended party in the amount of P20,000.00 for moral damages, plus the costs
of suit.
 "In Crim. Case No. 5096 for the murder of Apolinario Belmonte, the accused Noel Padilla is sentenced to suffer the
penalty of reclusion perpetua, with the accessory penalties provided by law, to indemnify the heirs of the deceased
Apolinario Belmonte the sum of P50,000.00 and to pay the costs of suit."[6]
In this appeal, appellant raises the following issues:

"WHETHER THE TESTIMONY OF JESUS CASAUL, JR., IS TRUSTWORTHY AND RELIABLE, and

"WHETHER THE NON-PRESENTATION OF WITNESSES LISTED IN THE INFORMATIONS (SHOULD) BE

CONSTRUED AGAINST THE PROSECUTION."[7]
In its attempt to support the first argument, the defense pointed to what it considered to be contradictions in the
testimony of Casaul. Thus, Casaul declared on direct examination that he was facing the accused when the latter shot
him; however, Dr. Rafael said that based on the location of the wounds, the triggerman must have been at Casauls right
side. Casaul stated that he was still conscious when he was shot on the right cheek, a claim which was not in accord with
the opinion of Dr. Rafael that while the wound on Casaul's cheek did not render the victim unconscious, the wound,
however, on his ear must have did.
The defense argument has been convincingly refuted by the Solicitor General; he states:

"A careful examination of the record will show that Casaul's testimony is not inconsistent with the testimony of Dr.
Rafael. Casaul was telling the truth when he said that he saw the appellant shoot him. It must be noted that Casaul and
his cousin Apolinario Belmonte were occupying a square table which were just beside the table being occupied then by
appellant and his friends (pp. 14-15, TSN May 19, 1994). For this reason, Casaul could clearly observe and see the table
where appellant was when the crimes were committed (p. 15, ibid.):
"Q How about your cousin Apolinario Belmonte, what was his position when Noel Padilla was already behind Apolinario
Belmonte?
"A His back is on Noel Padilla.
"Q And then what happened please demonstrate.
"A He fired two shots. (The witness is slightly in bending position with his two hands clutched).
"ATTY. CARIAN:
And the hand is less than one foot from the head of Apolinario Belmonte.
"ATTY. BANZON:
Showing the position of Noel Padilla holding a gun.
"Q And then what happened?
"A He fired two shots, `Bang, Bang' (in a split second).
"Q What was the position of your cousin Apolinario Belmonte when hit?
"A He fell on his right.
"ATTY. BANZON:
The alleged position of accused in line with the witness is around 45.
"COURT:
Make of record that when the witness demonstrated the position of the accused he was not directly behind Apolinario
Belmonte.
"ATTY. CARIAN:
Around 40.
"ATTY. BANZON:
"Q Was there any conversation that transpired before the shot was fired between Apolinario Belmonte and the accused?
"A There was none.
"Q How about you granting that I am you, what was my position then?
"A After he fired his gun to my cousin, he pointed his gun at me and I raised my hands to stop him, and I said:
`Huwag.'
(Witness demonstrating by turning his head towards his right towards the direction of the accused who went near him and
then fired at him on his face. He slumped down on the table). (emphasis supplied) (pp. 15-16, TSN May 19, 1994)

"Clearly then, Casaul was not lying when he said that he saw the appellant shoot him and Apolinario Belmonte. He
testified that when appellant approached the back of Apolinario and shot the latter, he turned his head to his right where
he saw appellant. Hence, Dr. Rafael corroborates the testimony of Casaul that appellant was on the right side of Casaul
when Casaul was shot and hit on the right cheek.

"Significantly, Dr. Rafael likewise confirms that Casaul could still identify appellant when he was shot by appellant. As
stressed by Dr. Rafael, the first gunshot wound on Casaul's cheek could not render him unconscious. Therefore, Casaul
could still see appellant shooting him (p. 10, TSN December 7, 1994). With this on record, it is immaterial whether or not
the second gunshot wound inflicted by appellant at the back of the ear of Casaul could knock-out the latter. The trial court
found no inconsistencies between the findings of Dr. Rafael and the testimony of Casaul. Both are consistent on material
points. There is thus, no reason to disturb the conclusions reached by the trial court insofar as the prosecution witness
credibility and appellant's guilt are concerned." [8]
The testimony of a witness would only need to be congruent on important and relevant points concerning the
principal occurrence;[9] slight inconsistencies might even serve to strengthen the sincerity of the witness and would tend to
prove that his testimony has not been rehearsed.[10]
Appellant would make an issue over an entry in the medical record of Casaul from the Jose Reyes Medical Hospital
which stated unknown assailant to the question of whether the victim knew the identity of his attacker. The matter was
easily explained, however, by Casaul himself who said that he had known appellant only by face until the case was
filed. The weight of the eyewitness account should be on the fact that the witness saw the accused commit the crime and
was positive on the latter's physical identification,[11] rather than in being able to identify him by his appellation or name. [12]
Appellant would impugn the credibility of Judge Silva in rendering the assailed decision on the ground that it was not
he, but Judge Baclig, who heard the testimony of Casaul. This kind of argument had been dismissed a good number of
times by the Court. The efficacy of a decision should not necessarily be impaired by the fact that its writer only took over
from a colleague who had earlier presided at the trial.[13] The fact that the judge who penned the decision did not hear the
case in its entirety would hardly be a compelling reason to thereby jettison his findings and conclusions as long as the
entire record was made available to him for his perusal.[14]
Appellant contends he has had a clean record and no strong motive to commit the crimes imputed against him. The
absence of motive for committing the crime does not preclude a conviction for it is not unknown for persons to be killed or
assaulted even for no reason at all.[15]More importantly, when an accused is positively identified by the victim himself, lack
of motive on the part of the transgressor becomes close to being inconsequential. [16]
Appellant alleges that the failure of the prosecution to present three of the witnesses listed in the informations, as
well as two others mentioned by Casaul, gives rise to the presumption that if the testimony of these witnesses were given
before the court, their declaration would have been adverse to the prosecution. The settled rule is that the prosecution
determines who among its witnesses are to testify in court,[17] and it is neither for the accused nor the court to override that
prerogative. Corrolarily, the failure of the prosecution to present a particular witness does not give rise to the presumption
that evidence willfully suppressed would be adverse if produced where that evidence is at the disposal of both parties or
where the only object of presenting the witness would be to provide corroborative or cumulative evidence. [18]
This Court finds no cogent reasons to reverse the decision of the trial court in finding the accused guilty of murder.
Murder is the unlawful killing of any person when qualified by any of the circumstances listed under Article 248 of the
Revised Penal Code.[19] Treachery, aptly alleged in the information, is one of such qualifying circumstances. Its elements
are: (1) the employment of means of execution that gives the person attacked no opportunity to defend himself or
retaliate; and (2) the deliberate and conscious adoption of the means of execution.[20] Here, treachery is evident when the
accused suddenly positioned himself at the back of the unsuspecting victim, pointed his gun at him and, without any
warning, promptly delivered the fatal shots. There was no way the victim could have defended himself, taken flight, or
avoided the assault.
There is, however, reason to modify the lower courts ruling on the second crime of frustrated murder. A felony is
frustrated when the offender performs all the acts of execution which would produce the felony as a consequence but
which, nevertheless, do not produce it by reason of causes independent of the will of the perpetrator.[21] For the crime of
murder, the frustrated stage is reached only if the wound inflicted would have been mortal. [22] The examining physician
has declared that the wounds suffered by the victim damaged no vital tissues and, without complications, would not have
killed him. The penalty imposed upon appellant should correspondingly be lowered to prision mayor in its medium period,
there being no aggravating or mitigating circumstance established. Applying the Indeterminate Sentence Law, the
minimum term can be anywhere within the range of prision correccional or from six (6) months and one (1) day to six (6)
years and the maximum within the range of prision mayor in its medium period, or from eight (8) years and one (1) day to
ten (10) years.
The civil indemnity of P50,000.00 awarded to the heirs of the deceased victim Apolinario Belmonte conforms with
prevailing jurisprudence. The grant of P20,000.00 moral damages to Jesus Casaul, Jr., found by the trial court has not
been disputed by the defense; the award will not be disturbed.
WHEREFORE, the decision of the Regional Trial Court of Bataan, Branch 2, in Criminal Case No. 5096, finding
accused-appellant guilty beyond reasonable doubt of the crime of MURDER and imposing upon him the penalty
of reclusion perpetua, as well as sentencing him to indemnify the heirs of the deceased victim, Apolinario Belmonte, a civil
indemnity of P50,000.00, is AFFIRMED. In Criminal Case No. 5095, the appealed judgment is MODIFIED and appellant is
hereby found guilty only of the crime of ATTEMPTED MURDER and sentenced to an indeterminate penalty of two (2)
years and nine (9) months of prision correccional as minimum to nine (9) years and one (1) day of prision mayor as
maximum; the imposition on him by the trial court of P20,000.00 moral damages is AFFIRMED.
SO ORDERED.
Melo, (Chairman), Panganiban, and Gonzaga-Reyes, JJ., concur.
Sandoval Gutierrez, J., on leave.

[1] Rollo, p. 70.

[2] Rollo, p. 70.
[3] Rollo, p. 70.
[4] Rollo, pp. 73-75.
[5] Rollo, p. 77.
[6] Rollo, p. 80.
[7] Rollo, p. 100.
[8] Appellee's Brief, p. 5-8.
[9] People vs. Binas, 320 SCRA 22; People vs. Sesbreo, 314 SCRA 87; People vs. Sy Bing Yok, 309 SCRA 28.
[10] People vs. Reyes, 309 SCRA 622.
[11] People vs. Tejero, 308 SCRA 660.
[12] People vs. Agsunod, Jr., 306 SCRA 612.
[13] People vs. Badon, 308 SCRA 175; People vs. Queliza, 279 SCRA 145; People vs. Espanola, 271 SCRA 689.
[14] People vs. Rabutin, 272 SCRA 197; People vs. Sorrel, 278 SCRA 368.
[15] People vs. Benito, 303 SCRA 468; People vs. Valdez, 304 SCRA 611.
[16] People vs. Bautista, 312 SCRA 214; People vs. Tan, 315 SCRA 375; People vs. Floro, 316 SCRA 304.
[17] People vs. Ronato, 316 SCRA 433.
[18] People vs. Barellano, 319 SCRA 567.
[19] Reyes, Revised Penal Code Book 2, 1998, p.472.
[20] People vs. Nullan, 305 SCRA 679; People vs. Piamonte, 303 SCRA 577; People vs. Realin, 301 SCRA 495.
[21] Article 6, Revised Penal Code.
[22] People vs. Kalalo, 59 Phil. 715; People vs. Pilones, 84 SCRA 167; People vs. Tamani, 55 SCRA 153.
G.R. Nos. 102407-08 March 26, 2001

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
EDMUNDO LUCERO y GACETA, accused-appellant.

YNARES-SANTIAGO, J.:

Four criminal informations were filed against accused-appellant Edmundo Lucero before the Regional Trial Court of
Quezon City, Branch 88. In Criminal Case No. Q-89-5349, accused-appellant was charged with murder for the death of
Fernando Jabol, while in Criminal Cases Nos. Q-89-5350, Q-89-5351 and Q-89-5352, respectively, he was charged with
Frustrated Murder.

The facts, as found by the trial court, are summarized as follows:

At around 4:00 o'clock in the afternoon of July 11, 1989, brothers Fernando and Joel Jabol, Alex Tano and Ferdinand
Alvero, together with others, were in the house of Domingo Lipas located in Kalayaan, Gao, Quezon City. They were
seated at a table drinking rhum. It was the birthday of Domingo's daughter, Eva Lipas. Suddenly, accused-appellant
barged into the house and, from two and a half to three meters away, fired six shots using his .38 caliber revolver.

The first shot was aimed at Fernando Jabol and hit him on the waist and right thigh. The second shot hit Alex Tano in the
abdomen. Joel Jabol raised both his arms in surrender, and the third shot hit his right ribcage. The fourth shot was again
aimed at Fernando. while the fifth hit Ferdinand Alvero below his right eye. The sixth shot was fired in the air. All the
victims jumped out of the window and proceeded to the East Avenue Medical Center for treatment.

It appeared that accused-appellant was the victims' barrio mate in Malagicay, Abuyog, Leyte, and that he shot them
because he suspected them of stealing the engine of his banca in Leyte.1

At the East Avenue Medical Center, Fernando Jabol was pronounced dead on arrival, due to gunshot wounds. 2

Patrolman Rolando Maniquiz of the Quezon City Police Force, who was assigned to conduct the investigation, went to the
East Avenue Medical Center to interview the victims, but they were hesitant to talk. He then proceeded to the scene of the
crime where he learned from a witness that accused-appellant was the gunman. He went back to the hospital, where
Ferdinand Alvero finally narrated to him everything that happened. Further investigation disclosed that accused-appellant
was in Balibago, Angeles City. On July 13, 1989, the Quezon City police, in coordination with the Angeles City Police,
arrested accused-appellant on Oak Street, Balibago, Angeles City.

Accused-appellant was brought to the Quezon City police station, where he was positively identified by all three victims as
their assailant. Pat. Maniquiz also discovered that accused-appellant was an escapee from the Davao Penal Colony.3

After the inquest proceedings, four criminal informations were filed against accused-appellant, who pleaded not guilty to
all the charges.4 The cases were consolidated and tried jointly.

In his defense, accused-appellant alleged that on July 6, 1989, he moved in with his girlfriend, Ana Olvida, at 24 Bulacan
Street, Mountain Dew, Balibago, Angeles City. He was arrested in the evening of July 13, 1989, while he was sleeping in
the said house. He denied that his boat engine was stolen. He knew the victims because they were his friends and barrio
mates in Malagicay, Abuyog, Leyte. He admitted having escaped from the Davao Penal Colony, where he was serving
sentence for robbery-holdup, but alleged that he was innocent of the crime for which he was convicted. 5

Ana Olvida corroborated accused-appellant's testimony. She testified that they have been live-in partners since 1987.
Every day at 4:00 o'clock in the afternoon, accused-appellant would take her to the Flying Machine Bar, where she
worked as cashier, and would fetch her at 4:00 o'clock in the morning. She averred that accused-appellant did not leave
the house on July 11, 1989.6

On November 13, 1990, the trial court promulgated its judgment as follows:

WHEREFORE, premises considered, the Court finds and so holds accused EDMUNDO LUCERO y GACETA Guilty
beyond reasonable doubt of the crime of MURDER committed against Fernando Jabol y Tolentino in Criminal Case No.
89-5349 penalized under Art. 248 of the Revised Penal Code and hereby sentences him to suffer a penalty of Reclusion
Perpetua; to pay compensation to the heirs of Fernando Jabol in the amount of P30,000.00 and to pay the cost.

This Court also finds accused EDMUNDO LUCERO y GACETA Guilty beyond reasonable doubt of the crime of
FRUSTRATED MURDER committed against Joel Jabol y. Tolentino in Criminal Case No. Q-89-5350 and therefore
hereby sentences him to suffer a penalty of imprisonment from Ten (10) Years and One (1) Day of Prision Mayor as
minimum to Seventeen (17) Years and Four (4) Months of Reclusion Temporal as maximum and to pay the cost.

Complainant Alex Tano y Lucero and Ferdinand Alvero y Visda in Criminal Case No. Q-89-5351 and Crim. Case No. Q-
89-5352 respectively failed to appear during the hearing of these cases. No evidence was presented showing the
culpability of the accused. Therefore, in Criminal Case No. Q-89-5351 and Q-89-5352, accused EDMUNDO LUCERO y
GACETA is ACQUITTED for lack of evidence.

SO ORDERED.7

Accused-appellant filed a Notice of Appeal,8 to which the trial court gave due course.9

Subsequently, counsel de parte entered his appearance for accused-appellant and filed a Motion for New Trial,10arguing
that contrary to the constitutional requirement, accused-appellant was not assisted by competent and independent
counsel during his investigation. On January 8, 1991, the trial court denied the Motion for New Trial on the ground that it
has lost jurisdiction over the case after accused-appellant filed his notice of appeal.11 The Motion for Reconsideration was
likewise denied on February 7, 1991.12

The appeal was filed directly with this Court, considering the imposition of the penalty of reclusion perpetua. Accused-
appellant, through counsel de parte, filed the Brief for Accused-Appellant,13 while the Solicitor General, on behalf of the
prosecution, filed the Brief for Appellee.14

Subsequently, accused-appellant, through the Public Attorney, informed the Court that he could not file his Reply Brief
because the records of the case do not contain the transcript of the testimony of Joel Jabol, the only eyewitness who
testified for the prosecution. Thus, this Court directed that the trial court retake the testimony of said witness. 15 However,
Joel Jabol failed to appear at the hearings set by the trial court. On May 31, 1999, counsel for accused-appellant filed a
Manifestation that he was dispensing with the filing of the Reply Brief. 16 He also prayed that the testimony of Joel Jabol be
disregarded since the same is probably fictitious and non-existent.

It appears from the records of the trial court that the testimony of Joel Jabol was completed on September 28,
1989,17 which means that either he was cross-examined by the defense or the latter was given an opportunity to cross-
examine him. In fact, the factual findings of the trial court were based largely on the testimony of Joel Jabol.18 In the
absence of any showing that the same were reached arbitrarily or without sufficient basis, this Court accords the highest
respect to the findings of fact by the trial court.19

In his Brief, accused-appellant raises the following assignments of error:

FIRST ASSIGNMENT OF ERROR

THE LOWER COURT ERRED IN NOT FINDING THAT THE EVIDENCE OF PROSECUTION TRANSGRESSED THE
CONSTITUTIONAL DUE PROCESS CLAUSE.

SECOND ASSIGNMENT OF ERROR

THE LOWER COURT ERRED IN NOT ACQUITTING THE ACCUSED-APPELLANT.20

Accused-appellant argues that during his custodial investigation, he was not assisted by competent and responsible
counsel, invoking Article III, Section 12 (1) of the Constitution, which provides:

(1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to
remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford
the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the
presence of counsel.
Reading further, the consequence of a violation of the foregoing constitutional guarantee can be found in the ensuing
subparagraph (3) of the same Article III, Section 12, to wit:

(3) Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against
him.

The argument is specious. Assuming arguendo that the above constitutional proscription was not observed, no confession
or admission was taken from accused-appellant. To be sure, his conviction was not based on his own statements which,
as he claims, were allegedly without the benefit of counsel. In fact, it does. not appear that he even gave a statement. His
conviction was anchored on the separate and independent testimonies of Joel Jabol and Pat. Rolando Maniquiz.

Accused-appellant takes exception to the trial court's admission of the prosecution's documentary exhibits which, he
contends, are inadmissible under the rules on evidence. Specifically, he enumerates the Certification of the Inmates
Prison Record Office that he escaped from the Davao Penal Colony, marked as Exhibit "B"; the Arrest and Booking
Report pertaining to accused-appellant's arrest for the murder of Police Corporal Romulo Abad, marked as Exhibit "C";
and the Autopsy Request, marked as Exhibit "D". He argues that these exhibits are irrelevant and hearsay, considering
that the persons who executed the documents were not presented in court. Further, he alleges that some questions
propounded to him on cross-examination referred to matters not covered during his direct examination.

Accused-appellant's contentions may be correct. It is true that evidence is admissible when it is relevant to the issue and
is not excluded by the law or these rules.21 On the other hand, hearsay testimony or evidence is inadmissible and,
whether objected to or not, has no probative value and cannot be given credence. 22 Likewise, a witness may only be
cross-examined as to any matters stated in the direct examination, or connected therewith. 23However, these principles do
not come into play in this case, because the documents now being objected to, or the testimony elicited from him during
the cross-examination, were not considered by the trial court in rendering the judgment of conviction. Hence, accused-
appellant's protestations on this score have no bearing whatsoever to his appeal.

Similarly, accused-appellant's contention on the credibility of Joel Jabol must fail. According to him, since Joel Jabol was
drinking rhum when the incident occurred, his version of the events must not be given credence. First of all, there was no
positive showing that he was in such a state of inebriation at that time as to distort his memory of the events. More
importantly, his ability to accurately recall the incident was tested by the trial court. In this connection, it bears stressing
that this Court will not disturb the findings of the trial court on matters relating to the credibility of witnesses. The
evaluation of testimonial evidence by trial courts is accorded great respect precisely because of its chance to observe
first-hand the demeanor of the witnesses, a matter which is important in determining whether what has been testified to
may be taken to be the truth or falsehood. Absent any showing that certain facts of substance and significance have been
plainly overlooked or that the trial court's findings are clearly arbitrary, the conclusions reached by the trial court must be
respected and the judgment rendered affirmed.24

An appeal in a criminal case throws the whole case wide open for review and the reviewing tribunal can correct errors,
though unassigned in the appealed judgment, or even reverse the trial court's decision on the basis of grounds other than
those that the parties raised as errors.25 Thus, although the following issues are not assailed by accused-appellant, we
deem it prudent to pass upon the same if only to validate the findings of the trial court.

The trial court held that the crimes committed by accused-appellant against brothers Fernando Jabol and Joel Jabol were,
respectively, murder and frustrated murder, the same being qualified by treachery. We agree. The victims were sitting
around a table inside the house of Domingo Lipas when, suddenly and without warning, accused-appellant barged into
the house and instantly fired his gun at them. As a result, the Jabol brothers suffered mortal wounds. The suddenness of
the attack afforded the victims no opportunity to put up a defense. Joel survived, but Fernando was not as fortunate. As
consistently held by this Court, an unexpected and sudden attack which renders the victim unable and unprepared to
defend himself by reason of the suddenness and severity of the attack constitutes alevosia or treachery. Its essence lies
in the adoption of ways that minimize or neutralize any resistance which may be put up by the unsuspecting victim. 26

Anent the crime committed against Joel Jabol, the trial court was likewise correct when it found that it was frustrated
murder. The gunshot hit Joel on the right subcostal area,27 i.e., below the right rib. This was a mortal wound which could
have caused Joel Jabol's death, considering the vital organs in that part of the body. But due to timely medical attention,
he survived. The intervention of medical treatment was independent of accused-appellant's will. A felony is frustrated
where the offender performs all the acts of execution which would produce the felony as a consequence but which,
nevertheless, do not produce it by reason of causes independent of the will of the perpetrator, 28 such as prompt medical
aid.29
We also agree with the trial court that accused-appellant's defense of alibi cannot prosper. As it correctly found, and as
testified to by defense witness Ana Olvida, the distance between Angeles City and Quezon City can be traversed by bus
in one and a half hours.30 For the defense of alibi to prosper, an accused should prove, not only that he was at some other
place at the time of the commission of the crime, but that also it would have been physically impossible for him to be at
the locus delicti or within its immediate vicinity.31

At the time of its commission, the penalty for murder was reclusion temporal maximum to death.32 There being three
distinct penalties, each one shall form a period.33 Since no aggravating or mitigating circumstance was alleged or proved
in this case,34 the penalty shall be imposed in its medium term. Thus we are not in period. Thus, the trial court was correct
in sentencing accused-appellant to suffer the penalty of reclusion perpetua for the murder of Fernando Jabol.

On the other hand, frustrated murder is punishable by the penalty next lower in degree, 35 which is prision mayor maximum
to reclusion temporal medium. Again, there being neither aggravating nor mitigating circumstance, the penalty shall be
imposed in its medium period,36 i.e., reclusion temporal minimum, consisting of twelve (12) years and one (1) day to
fourteen (14) years and eight (8) months. Applying the Indeterminate Sentence Law, accused-appellant is entitled to a
minimum term to be taken within the range of the penalty next lower to that prescribed by the Revised Penal Code for the
offense,37 which is prision correccional maximum to prision mayor medium, or four (4) years, two (2) months and one (1)
day to ten (10) years: The trial court, therefore, erred in fixing the penalty for frustrated murder. Instead, accused-
appellant should be sentenced to suffer the indeterminate penalty of six (6) years and one (1) day of prision mayor, as
minimum, to twelve (12) years and one (1) day of reclusion temporal, as maximum.

Finally, the civil indemnity in the amount of P30,000.00 awarded by the trial court should be increased to P50,000.00, in
line with prevailing jurisprudence.38

WHEREFORE, in view of the foregoing, the judgment of the trial court in Criminal Case No. Q-89-5349, finding accused-
appellant guilty beyond reasonable doubt of the crime of murder and sentencing him to suffer the penalty of reclusion
perpetua, is AFFIRMED with the MODIFICATION that he is ordered to pay the heirs of Fernando Jabol the amount of
P50,000.00 as civil indemnity.

The judgment in Criminal Case No. Q-89-5350, finding accused-appellant guilty beyond reasonable doubt of the crime of
frustrated murder, is AFFIRMED with the MODIFICATION that accused-appellant is sentenced to suffer an indeterminate
penalty of six (6) years and one (1) day of prision mayor, as minimum, to twelve (12) years and one (1) day of reclusion
temporal, as maximum. Costs de officio.

SO ORDERED.

Davide, Jr., C .J ., Puno, Kapunan and Pardo, JJ ., concur.

Footnotes

1 Record, p. 64.

2 Exhibits "E" & "G."

3 TSN, September 29, 1989, pp. 2-3.

4 Record, pp. 5-8.

5 TSN, October 16, 1989, pp. 2-4.

6 TSN, January 18, 1990, pp. 3-4.

7 Record, p. 67; penned by Judge Tirso D'C. Velasco.

8 Ibid., p. 71.
9 Id., p. 72.

10 Id., pp. 76-80.

11 Id., p. 85.

12 Id., p. 100.

13 Rollo, pp. 45-55.

14 Ibid., p. 106.

15 Id., p. 179.

16 Id., pp. 215-218.

17 Record, p. 38.

18 Ibid., p. 64.

19 People v. Dano, G.R. No. 117690, September 1, 2000.

20 Rollo, p. 48.

21 RULES OF COURT, Rule 128, Section 3.

22Judge Caña v. Gebusion, A.M. No. P-98-1284, March 30, 2000; Cristobal v. Court of Appeals, G.R. No. 124372, March
16, 2000.

23 RULES OF COURT, Rule 132, Section 6.

24 People v. Ramos, G.R. No. 120280, April 12, 2000.

25 People v. Listerio, G.R. No. 122099, July 5, 2000.

26 People v. Molina, G.R. Nos. 134777-78, July 24, 2000.

27 Exhibit 'A.'

28 REVISED PENAL CODE, Article 6, 2nd par.

29 People v. Jarandilla, G.R. Nos. 115985-86, August 31, 2000.

30 TSN, January 18, 1990, p. 4.

31 People v. Catuiran, Jr., et al., G.R. No. 134768, October 17, 2000.

32 REVISED PENAL CODE, Article 248.

33 REVISED PENAL CODE, Article 77.

34 REVISED PENAL CODE, Article 64 (1).

35 REVISED PENAL CODE, Article 50.

36 REVISED PENAL CODE, Article 64 (1).

37 Act No. 4103, as amended, Section 1.

38 People v. Piamonte, 303 SCRA 577, 590 (1999); People v. Gatchalian, 300 SCRA 1, 19 (1998).

G.R. No. L-32754-5 July 21, 1978

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
MANUEL PILONES y IBAÑEZ, defendant-appellant.

AQUINO, J.:

Manuel Pilones appealed from the decision of the Circuit Criminal Court of Manila in Criminal Cases Nos. CCC-VI-170
(70) and CCC-VI-171 (70), convicting him of murder and frustrated murder, and sentencing him in the murder case to life
imprisonment and to indemnify the heirs of Antonio G. Renolia in the sum of P18,000.

In the frustrated murder case, he was sentenced to an indeterminate penalty ranging from six years and one day
of prision mayor, as minimum, to twelve years and one day of reclusion temporal, as maximum, for having assaulted
Nicanor Ilagan. No indemnity was imposed.

In the evening of April 9, 1970 a wake or vigil for the dead (lamayan) was held in a house near Jossie Bakery, located at
J.(F.) Posadas Street, Punta, Sta. Ana, Manila. Among the many persons present at that vigil were Nicanor Ilagan, 19,
single, jobless, a student, and Antonio G. Renolia (Renolla), nicknamed Tony, 22, married, a jeepney driver, respectively
residing at 2572 F. Posadas Street and 2495 Bagong Sikat Street, both located at Punta, Sta. Ana, Manila.

Shortly after midnight or in the early morning of April 10, 1970, the house, where the vigil was being held, was stoned.
Ilagan and the others came out of the house and went to the street to find out who had hurled the stones. As Ilagan stood
on the lighted street, he was shot in the knee (Exh. E). He fell on the ground. The assailant was at a distance of around
six meters from Ilagan and about fifteen meters away from the electric lamp on the street. Ilagan saw his assailant's face.
Because of the light of the electric lamp, Ilagan remembered his assailant as the same person whom he had seen a week
before in that vicinity, challenging persons to a fight.

When Ilagan fell, Tony, who had also come out of the house, went to his assistance and tried to lift him. While in a
stopping position, Tony was shot by the same assailant. The bullet entered his "upper left anterior chest" over the second
rib and "coursed downward and backward, lacerating his left pulmonary artery and his right lung" (Exh. D).

The assailant and his companions, Danny Banlag, Milo and others, who were armed with arrows and carried stones, ran
away.

Tony or Antonio G. Renolia died on the way to the hospital. Ilagan was also brought to the hospital where he was treated
for two weeks.

For sometime, the police made no progress in the investigation of the crime. On the third day after the shooting, Ilagan,
while in the hospital was informed by his friend, one of whom was Aida, that his assailant was Manuel Pilones.

Fifty days after the shooting, or on May 30, 1970, Manuel Pilones, 20, jobless, a resident of 148 Tenement Housing
Project, Punta, Sta. Ana, Manila was arrested for vagrancy by patrolmen of Precinct No. 9. Ilagan, who was fetched from
his residence by Tony's mother, Identified as the person who had shot him after midnight on April 10, 1970. At that
confrontation, Pilones was just one arm's length from Ilagan.

When Ilagan fingered Pilones as the malecfactor. who had shot him and Tony Renolia (Question No. 19 of Exh.
P), Pilones did not say anything (18 tsn July 13, 1970). Emiliana Giray Renolia, the mother of Tony, a resident of 2225 F.
Posadas Street, Punta, Sta. Ana, was also at the precicnt. She likewise Identified Pilones as the assailant of her
deceased son and three other persons (Crime Report, Exh. G). Pilones refused to give any statement or comment at that
investigation. The investigator's testimony On this point upon interrogation by the fiscal is as follows (2 tsn July 30, 1970):
Q In Exhibit F (Ilagan statement), the witness Nicanor Ilagan pointed to Manuel Pilones in answer to Question No. 19,
where was accused Pilones when pointed to by witness Nicanor Ilagan?

A He was present in the investigation room. sir.

Q How far was he from Nicanor Ilagan when pointed to by him?

A He was near the table sir.

Q Do you know whether the accused heard Nicanor Ilagan when pointed to as the one responsible for the shooting of the
victim?

A Yes, sir.

Q What did he say.?

A Nothing, sir.

Q Did you investigate accused Pilones?

A Yes, sir.

Q Did you confront him with this case?

A Yes, sir.

Q What did he say?

A He said nothing.

Q Did you take his statement?

A No, sir.

Q Why?

A He is (was) not willing to give his statement.

Q Why was he not willing to give his statement?

A I do not know, sir.

Q Did you explain the reason why?

A Yes, sir, but he refused to give his statement.

At the trial Pilones relied on an alibi. He testified that when the shooting occurred, he was in the house of his aunt, Marilou
Campbell, at Olongapo City. He was in that place from December 31, 1969 to May 28, 1970. His aunt and his brother-in-
law, who was allegedly his companion in going to Olongapo City, did not take the witness stand to corroborate his alibi.

Anacoreta Castro, a widow and a neighbor of Pilones at Punta, Sta. Ana, corroborated his alibi However, her testimony is
weakened by a serious contradiction. She testified that Pilones, who was like a child to her because his family and her
family "are practically one", left for Olongapo City before Christmas, while, on the other hand, Pilones testified that he
went to that Place after Christmas or on December 31, 1969 (6 and 14 tsn July 30, 1970).

The personal circumstances of Pilones may be useful in assessing his character. He has a common-law wife. He has
tattoo marks on his body placed by Ben Lumot. He claims that he was framed up by Patrolman Bayani Lasian, who
resided at the sixth floor of the tenement house, where he (Pilones) also resided. Patrolman Lasian allegedly suspected
Pilones of being implicated in the killing of Patrolman Gameng. Lasian allegedly had a grudge against Pilones because
during a basketball tournament among residents of the tenement house Pilones "tripped" and Lasian boxed him (7 tsn
July 30, 1970; See Exh. 1). The residence of Pilones is about 12 meters away from Posadas Street.

The crucial factual issue is whether Pilones was sufficiently Identified by the prosecution's sole eyewitness, Ilagan. as the
assailant of Ilagan and the deceased Tony Renolia.

The doctor, who treated Ilagan. testified that when he operated on Ilagan's wounded knee, he extracted therefrom metallic
fragments. On the other hand, the doctor, who conducted an autopsy on the cadaver of Renolia, testified that he extracted
a.22 caliber slug from the victim's body. Since there is a difference between a slug and a metallic fragment, Pilones'
counsel contends that Ilagan and Renolia were shot by different persons or with different weapons.

That circumstance is not sufficient to cast a reasonable doubt on appellant's guilt. It merely conveys the impression that,
inasmuch as according to Ilagan, he and Renolia were shot in succession, Pilones used different weapons. He had time
to change weapons. He had companions who could have assisted him in the execution of his felonious acts.

The fact is that Ilagan positively Identified Pilones as the Person who shot him (Ilagan). Even if Renolia was shot by
Pilones' companion, with a firearm different from the .22 caliber rifle used against Ilagan, Pilones would still be criminally
liable for Renolia's death because he, obviously, conspired with the person who shot Renolia. Pilones and his
companions were together at the scene of the crime. They left the place together. They had community of design.

The decisive fact is that Pilones was not only Identified by Ilagan but at the confrontation in the police precinct between
accuser and accused, Pilones, as the accused, just kept silent and did not deny Ilagan's accusation and the Identification
made by Renolia's mother. "He who remains silent when he ought to speak cannot be heard to speak when he should be
silent" (31 C.J.S. 494). Rule 130 of the Rules of Court provides:

SEC. 23. Admission by silence. — Any act or declaration made in the presence and within the observation of a party who
does or says nothing when the act or declaration is such as naturally to call for action or comment if not true, may be
given in evidence against him.

Silence is assent as well as consent, and may, where a direct and specific accusation of crime is made, be regarded
under some circumstances as a quasi-confession. An innocent person will at once naturally and emphatically repel an
accusation of crime, as a matter of self-preservation and self-defense, and as a precaution against prejudicing himself. A
person's silence, therefore, particularly when it is persistent, will justify an inference that he is not innocent. (Underhill's
Criminal Evidence, 4th Ed. p. 401).

Appellant Pilones contends that the trial court erred in not granting his motion for new trial based on newly discovered
evidence, which is the affidavit of Arturo Pangan, a detainee in the city jail of Manila. Pangan declared in his affidavit that
in the "riot", clash or encounter (salakay o sagupaan) on April 9, 1970 between the residents of Barrio Puso and the
residents of Labasan Bukid, he and Romy Pilones, a brother of Manuel Pilones, were together and he saw that Antonio
Renolia and Nicanor Ilagan were shot by Aquilino Pingol with a .22 caliber rifle; that Pingol was in the company of Danny
and Nilo Garcia, alias Nilong Bulag, and that at that time Manuel Pilones was in Olongapo City.

It is evident from Pangan's affidavit that he was referring to another incident. Pangan was referring to a riot or rumble
between two groups of persons. Ilagan did not testify to any rumble or tumultuous affray between the residents of two
places. He testified simply to a shooting at F. Posadas Street, Punta, Sta. Ana when he came out of the house where a
vigil for the dead was being held.

Moreover, if according to Pangan, Romy Pilones,. the brother of appellant Manuel Pilones, was with Pangan on that
occasion, the alleged newly discovered evidence could have been presented by the appellant during his trial. His brother,
Romy, could not have been ignorant of what Arturo Pangan knew and Romy could have informed Manuel Pilones earlier
that the assailant of Ilagan and Renolia was Pingol.

The trial court did not err in denying the motion for new trial.

We are convinced that Pilones was sufficiently Identified by Ilagan as the person who shot him and Renolia. Pilones has
not shown any reason as to why Ilagan would accuse him of murder and frustrated murder. There is no showing that
Ilagan had connived with Patrolman Lasia whom Pilones believes is the one responsible for his arrest, to frame up the
accused.
No motive was established as to why Pilones shot Ilagan and Renolia. The shooting can be characterized as purely a
mischievous act of deviltry committed by a jobless and lawless person who did not know of any better way of using his
time.

The trial court erred in holding that the crime as to Ilagan is frustrated murder. The wound in his knee was not Sufficient to
cause his death. The crime is only attempted murder. The accused did not perform all the acts of execution that would
bring about the death of Ilagan.

WHEREFORE, the lower court's judgment is affirmed with the modification that in Criminal Case No. 171(70), Pilones is
convicted of attempted murder and is sentenced to an indeterminate penalty of three (3) years of prision
correccional medium, as minimum, to six (6) years and one (1) day of prision mayor Minimum, as maximum, and to pay
an indemnity to Nicanor Ilagan. in the sum of two thousand pesos.

The term "life imprisonment" used by the trial court should be changed to reclusion perpetua. It is the latter term that
carries with it the imposition of the accessory penalties. (People vs. Mobe, 81 Phil. 58; Art. 73, Revised Penal Code).
Costs against the appellant.

SO ORDERED.

Fernando, Barredo, Concepcion, Jr. and Santos JJ., concur.

Antonio, J., took no part.

G.R. Nos. L-22160 & L-22161 January 21, 1974

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
TEODORO TAMANI, accused-appellant.

Office of the Solicitor General Antonio P. Barredo, Assistant Solicitor General Felicisimo R. Rosete and Solicitor Norberto
P. Eduardo for plaintiff-appellee.

Constancio S. Vitug for accused-appellant.

AQUINO, J.:1äwphï1.ñët

This is an appeal of defendant Teodoro Tamani y Marinay from the decision of the Court of First Instance of Isabela, (a)
sentencing him to "life imprisonment" for the murder of Jose Siyang and ordering him to indemnify the victim's heirs in the
sum of P6,000 and (b) further sentencing him to an indeterminate penalty of two (2) years, four (4) months and one (1)
day of prision correccional to eight (8) years and twenty-one (21) days of prision mayor for the attempted murder of
Eduardo Domingo and ordering him to indemnify the victim in the sum of P2,000 (Crim. Cases Nos. II-192 and II-198).

Issue as to dismissal of the appeal.—After the appellant had filed his brief, the Solicitor General filed a motion to dismiss
the appeal on the ground that the notice of appeal was forty-seven days late. Appellant's counsel de oficio did not oppose
the motion. Action thereon was "deferred until this case is considered on the merits". (Resolution of March 7, 1967). The
motion to dismiss is reiterated in appellee's brief. That preliminary question should first be resolved.

The lower court's decision convicting defendant Tamani was promulgated on February 14, 1963. A copy thereof was
served on his counsel on February 25, 1963. On March 1, 1963 he filed a motion for reconsideration. It was denied. A
copy of the order of denial was served by registered mail on July 13, 1963 on defendant's counsel through his wife. He
had eleven days or up to July 24, 1963 within which to appeal (if the reglementary fifteen-day period for appeal should be
computed from the date of notification and not from the date of promulgation of the decision). He filed his notice of appeal
only on September 10, 1963 or forty eight days from July 24th.

Silvestre B. Bello, defendant's counsel, filed a sworn statement, accompanying the notice of appeal. In that affidavit, he
stated that the trial court's order, denying his motion for reconsideration, although admittedly received by his wife on July
13th, was never brought to his attention and that he came to know of the order only on September 7th when he verified
the expediente of the case and discovered that an order of denial had been issued. He averred that his wife must have
lost the envelope containing the order.

The trial court opined that the wife's affidavit should have been submitted and that the defendant should have filed a
motion praying that the tardy appeal be given due course.

After considering the gravity of the two penalties imposed on the accused and the earnest plea of defense counsel, the
trial court gave due course to the appeal without prejudice to the right of the Solicitor General to "raise the question of
jurisdiction on the ground of a very much belated appeal".

Rule 122 of the Rules of Court provides:

SEC. 6. When appeal to be taken.—An appeal must be taken within fifteen (15) days from promulgation or notice of the
judgment or order appealed from. This period for perfecting an appeal shall be interrupted from the time a motion for new
trial is filed until notice of the order overruling the motion shall have been served upon the defendant or his attorney.

The word "must" in section 6 is synonymous with "ought". It connotes compulsion or mandatoriness. The clear terms of
section 6 leave no room for doubt that the appeal should be effected within fifteen days from the promulgation of the
judgment.

The counsel for appellant Tamani must have so understood that import of section 6 (which is confirmed by the practice in
trial courts) as evinced by the fact that his motion for reconsideration was filed on March 1st, which was the fifteenth or
last day of the reglementary period.
The assumption that the fifteen-day period should be counted from February 25, 1963, when a copy of the decision was
allegedly served on appellant's counsel by registered mail, is not well-taken. The word "promulgation" in section 6 should
be construed as referring to "judgment" (see section 6 of Rule 120), while the word "notice" should be construed as
referring to "order". That construction is sanctioned by the rule of reddendo singula singulis: "referring each to each;
referring each phrase or expression to its appropriate object", or "let each be put in its proper place, that is, the words
should be taken distributively" (76 C. J. S. 175).

Therefore, when the order denying appellant's motion for reconsideration was served by registered mail on July 13th on
appellant's counsel, he had only one (1) day within which to file his notice of appeal and not eleven days. That
construction is an application by analogy or in a suppletory character of the rule governing appeals in civil cases which is
embodied in section 3, Rule 41 of the Rules of Court.

Appellant Tamani's notice of appeal, filed on September 10, 1963, was fifty-eight days late. A regoristic application of
section 6 justifies the dismissal of his appeal, as prayed for by the prosecution.

However, considering that appellants right to seek a review of his case was lost by reason of his counsel's inadvertence
and considering further that the briefs have been submitted, the Court has resolved to review the record to obviate any
possible miscarriage of justice (Cf. Marbury vs. Madison, 1 Cranch 135, 2 L. ed. 60, where Chief Justice Marshall
discussed the merits of a mandamus action although the Court held that it had no power to issue that writ).

Uncontroverted facts.—There is no dispute that sometime after twilight on the night of June 11, 1953 in the place called
Centro at the commercial street of Angadanan, Isabela, Jose Siyang (Syang), the town assistant sanitary inspector, was
mortally wounded by gunfire. Death resulted from internal hemorrhage caused by the following four (4) through and
through gunshot wounds which followed an oblique direction from the point of entry to exit:

1. Entry, chest about 2-½ inches from level of the nipple. Exit, at the back level of twelfth dorsal vertebrae to the right side.

2. Entry, above right clavicle (suprasternal notch) middle portion. Exit, at the back at the level of the right angle of scapula.

3. Entry, anterior aspect of left shoulder. Exit, at the back of shoulder about 2-½ inches from tip of armpit (left side).

4. Entry, anterior aspect of right forearm middle in slight oblique direction from the point of entry to exit. (Exh. F. Certificate
issued by Pablo H. Gaffud, M.D.).

By means of the same gunfire, an attempt was made to kill Mayor Eduardo Domingo. He sustained a through and through
wound in the palm of his right hand which caused his confinement in the Isabela Provincial Hospital from June 11 to 22,
1953 (Exh. E, Certificate issued by J. L. Maddela, Sr., Resident Physician).

More than three years from the time that tragedy transpired, or on October 2 and 3, 1956, appellant Tamani signed and
thumbmarked two sworn statements before the agents of the National Bureau of Investigation (NBI), wherein he
confessed that he was the one who shot Siyang and Mayor Domingo; that his companion on the occasion of the shooting
was Domingo Cadawan; that on the morning of June 11, 1953 he and Cadawan were dismissed as policemen and that
Vice-Mayor Villamor Tamani, Matias de la Fuente and Rufino de los Santos instigated him to liquidate Mayor Domingo
(Exh. A and B). The two statements are in English, a language which Tamani understands (19 tsn II Valencia).

Inasmuch as the crimes, murder and attempted murder, have been proven, meaning that the corpus delicti had been
established, and appellant Tamani had confessed having committed the same, there should be an airtight case against
him. Rule 133 of the Rules of Court provides:

SEC. 3. Extrajudicial confession, not sufficient ground for conviction.—An extrajudicial confession made by an accused,
shall not be sufficient ground for conviction, unless corroborated by evidence of corpus delicti. (Same as See. 96, Rule
123, 1940 Rules of Court).

Tamani's confession is corroborated by the undisputed evidence of the corpus delicti.

However, during the trial, he repudiated his confession. He assailed its voluntariness. He set up the defense of alibi.
Through his principal witness, Francisco Siyang, the father of the deceased Jose Siyang, he endeavored to prove that the
latter was shot by Policemen Gaspar Ibarra and Melchor Tumaneng. Thus, a simple case, where the extrajudicial
confession is corroborated by evidence of the corpus delicti, became controversial, complicated and perplexing.
Version of the prosecution.—In addition to Tamani's extrajudicial confession (Exh. A and B), the prosecution offered the
testimonies of complainant Domingo, Doctor Pablo H. Gaffud, Juana Vittori Vda. de Ibarra, Emiteria Ibarra, Ilustre D.
Mendoza, Mariano G. Almeda, Teodoro Colobong and Martin Caniero.

The prosecution's evidence discloses that Domingo was the mayor of Angadanan since 1947. Prior to June 11, 1953, he
was suspended from office by the Governor. During Domingo's suspension, Villamor Tamani, the vice-mayor, functioned
as acting mayor. He appointed as policeman his second cousin, appellant Teodoro Tamani who was then twenty-four
years old. The vice-mayor used to appoint Teodoro Tamani as policeman whenever Domingo was suspended. Teodoro
Tamani resigned as policeman shortly before June 11th. In the afternoon of June 10th, Domingo was reinstated and he
reassumed the office of mayor.

The reinstatement of Domingo was obviously resented by Vice-Mayor Villamor Tamani because it meant the termination
of his tenure as acting mayor. On June 10th Teodoro Tamani and Domingo Cadawan (also a former policeman like
Teodoro Tamani) were summoned for a conference by the vice-mayor to his house at Barrio Aniog, Angadanan. Present
at the conference were the vice-mayor and his men, Matias de la Fuente and Rufino de los Santos. It was decided at that
meeting that Mayor Domingo should be liquidated. De la Fuente handed to Teodoro Tamani a carbine.

Appellant Tamani and Cadawan spent the night in the vice-mayor's house. On the following morning of June 11th,
Cadawan was sent on a mission to the poblacion of Angadanan to ascertain the whereabouts of the quarry, Mayor
Domingo. At around seven o'clock in the evening, Cadawan returned to the vice-mayor's house and apprised appellant
Tamani that Domingo was in front of the store of Pedro Pua at the town's commercial street.

Cadawan and Teodoro Tamani proceeded with dispatch to the poblacion, making shortcuts by passing through the yards
of neighboring houses. Tamani carried the carbine. On entering the yard of the house adjoining Pedro Pua's store,
Cadawan stumbled. The resulting noise attracted the attention of the owner of the house, Mrs. Ibarra, who focused a
flashlight at Tamani and, on recognizing him, uttered his nickname, Doro. She had known Doro since childhood. She saw
that he was carrying a gun.

She had just taken her supper. She and her daughter, Emiteria Ibarra, were sitting on the veranda. It was while chewing
her buyo that Mrs. Ibarra heard somebody trip in her yard on the cement floor intended as the base of a tank. Almost
simultaneously, she heard the grunting (ngik-ngik) of her pig. When she trained her flashlight on the intruder and
recognized Doro (appellant Tamani) with a gun and called him, the latter answered, "Tia" (Aunt).

Mrs. Ibarra saw that Teodoro Tamani passed under the eaves of her house, crossed the bamboo fence separating her
from the vacant lot of Pedro Pua and proceeded to the corner of the vacant lot near the gate of galvanized iron sheets and
the edge of the cemented pavement which was in front of Pedro Pua's store (see sketch, Exh. C). As appellant Tamani
passed the fence, he produced a "cracking noise". Emiteria Ibarra testified:

Q. Who say (saw) Teodoro Tamani? — A. My mother and myself, sir.

Q. What was the appearance of Teodoro Tamani when you saw him after your mother lighted him with the light of the
flashlight? — A. When my mother flashed the flashlight towards him at the same time my mother called, "Doro" and then
he answered "TIA" and he was carrying a firearm, sir.

Q. Why do you know that when you and your mother heard the cracking of the fence Teodoro Tamani went inside the
fence? — A. We know it because of the cracking of the fence, besides that we saw him proceeded towards the fence, sir.

Q. After Teodoro Tamani entered that fence as you say, what happened, if any? — A. He proceeded towards the gate of
the Chinese, sir.

Q. What happened, if any, after Teodoro Tamani went to that gate? — A. Upon arriving at the gate we heard the gun
reports, sir.

Q. How many gun reports, if you remember? — A. Maybe eight (8) or nine (9), sir.

Q. Do you know where the gun reports came from? — A. Yes, sir, because I saw the sparks of the bullets when they were
fired, sir.

Q. Did you know who fired? — A. I know, sir.

Q. Who? — A. Teodoro Tamani, because he was the only one who entered with a gun, sir (74-75 tsn Jan. 16, 1959).

Q. Who fired? — A. Teodoro Tamani, sir.

Q. Why do you say that he was the one who fired? — A. Because the gun reports came from the place where he stood at
the gate, sir (77 tsn Jan. 16, 1959).

From the place where Cadawan and Tamani had positioned themselves, they had a good view, through the holes of the
gate, of Mayor Domingo and his group in front of Pua's store (Exh. A). The mayor was engaged in conversation with a
group of persons on the cemented pavement ( pasillo of sidewalk) in the front of the store in Centro at the town's
commercial street. Standing near the wall of the store were Hermoso Alicam, Liberato Tanam, Primitivo Tallog, Martin
Caniero, Toedoro Colobong, Gaspar Ibarra, Francisco Siyang and Gonzalo Siyang. Mayor Domingo was standing in front
of the group, walking and gesticulating as he talked. Jose Siyang was leaning against a post somewhat apart from the
group (Exh. C, 6 tsn March 3, 1959).

Mayor Domingo was recounting his experience in Manila during his suspension. He was standing on the culvert which
bridged the canal separating the pasillo and the street (See Exh. C). As he talked, he gestured and swung his hands up
and down with palms open, facing Pua's store and his audience. Jose Siyang, who was apart from the group of listeners,
was about two to three meters on Mayor Domingo's right, leaning one of the post which supported the roof shading
the pasillo or cemented pavement. Jose Siyang was in line with Mayor Domingo while, in contrast, the group of listeners
was standing side by side close to the galvanized iron wall of the store, facing Mayor Domingo who was telling stories.

In the meanwhile, Teodoro Tamani and Cadawan were standing on the vacant lot in close proximity to the gate of
galvanized iron sheets where the pasillo ended. Cadawan opened a hole in the gate, about three inches in diameter,
through which Teodoro Tamani inserted the barrel of the carbine. Tamani fired at Mayor Domingo who was the target.
Jose Siyang, a second cousin of Teodoro Tamani, like Vice-Mayor Tamani, "was farther on the right side of Mayor
Domingo along the line of fire" (Exh. A). Appellant Tamani fired two volleys. Mrs. Ibarra and her daughter saw from the
veranda the flashes of fire emitted by the carbine of Teodoro Tamani.<äre||anº•1àw> They left the veranda and went
inside the house.

At the moment the first volley of gunshots was fired, which was between seven and seven-thirty, Mayor Domingo had
raised his right hand. The palm of his right hand was hit. Jose Siyang was also hit. Domingo and his listeners dispersed
and sought refuge inside Pua's store. While Domingo ran for cover, a second volley was fired. The volley's came from
behind the iron gate on the vacant lot or "from the southwest end" of the cemented pavement behind the gate. While
inside the store, Mayor Domingo heard the moaning of someone in an agony of pain. That person turned out to be Jose
Siyang who had sustained four gunshot wounds and was hovering between life and death. Siyang died before eleven
o'clock that same night.

Constabulary soldiers and peace officers arrived at the scene of the shooting and conducted an investigation. Mayor
Domingo was taken to the provincial hospital. Doctor Gaffud conducted an autopsy on the body of Jose Siyang in the
municipal building. On the following day empty shells were found by the Constabulary soldiers near the galvanized iron
gate (6 tsn. III Calixto).

Teodoro Tamani and Cadawan left the scene of the shooting. They ran, passing the same route that they had taken in
coming, and went direct to the house of Vice-Mayor Villamor Tamani in Barrio Aniog. Teodoro Tamani stayed overnight in
the house of the vice-mayor. Cadawan, who reported to the vice-mayor that Mayor Domingo was dead, proceeded to
Barrio Clakcab and returned the murder weapon to Matias de la Fuente.

The trial court accepted the foregoing version as the basis of the judgment of conviction. It noted that in 1956 when NBI
Agent Mariano G. Almeda arranged a confrontation between Teodoro Tamani and Mrs. Ibarra, she identified him as the
person whom she saw in her yard in the evening of June 11, 1953. During the confrontation, Tamani trembled, became
pale and remained silent.

Teodoro Tamani sometime after the shooting went into hiding at Cabagan and Santo Tomas, Isabela, where he was
arrested by Mayor Domingo by virtue of a warrant of arrest issued in Criminal Cases Nos. 245 and 246 of the justice of
the peace court of Angadanan (Exh. 3, 4, 5 and 6, 11 tsn March 3, 1959). Appellant went into hiding although his wife was
about to deliver her baby.

As to the motive for shooting Mayor Domingo, Teodoro Tamani explained that Vice-Mayor Villamor Tamani, his second
cousin, ordered the liquidation of the mayor so that he could not assume office and the vice-mayor would become mayor
(Exh. A). Appellant Tamani was chosen to execute that task because he had lost his job as policeman when Mayor
Domingo was reinstated (Exh. A, p. 2).

On the other hand, Mayor Domingo said that when Teodoro Tamani was still a policeman, the mayor had scolded him for
not reporting for work and for working as cook of Vice-Mayor Villamor Tamani and plowing his field. The other motive was
that since Teodoro Tamani is a relative of the vice-mayor, who was a "political enemy" of the mayor, he (appellant
Tamani) could act as a policeman when the vice-mayor became mayor after the elimination of the incumbent mayor (11
tsn March 3, 1959).

On the credibility of the prosecution eyewitness, Mrs. Ibarra, the trial judge made the following findings:

The Court concentrated attention on the attitude and observed the gestures, features, demeanor and manner of testifying
and the emphasis, gestures and inflection of the voice of prosecution witness Juana Vitorri de Ibarra during all the time
she was on the witness stand in the direct and cross-examination, and her answers were prompt, concise, responsive to
interrogatories, outspoken, and entirely devoid of evasion or any semblance of shuffling, and her entire testimony was
given with calm, self-possession, an erect front, and unhesitating accent. The Court is convinced of her sincerity and
credibility and the truthfulness of her testimony, in great contrast with defendant's manner of testifying. (pp. 859-60,
Record).

The trial court concluded that the intended victim was Mayor Domingo and not Jose Siyang.

Appellant's version and contentions.—In this appeal appellant's counsel de oficio argues that the trial court erred (1) in
disbelieving Tamani's alibi; (2) in assuming that his extrajudicial confession was voluntary; (3) in not giving credence to
the testimony of defense witness Francisco Siyang, that his son, Jose Siyang, was shot by Policemen Gaspar Ibarra and
Melchor Tumaneng; (4) in giving credence to circumstantial evidence, and (5) in the alternative, in not holding that
appellant Tamani committed the complex crime of homicide with lesiones grave.

Appellant Tamani, having abjured his confession, gave the following version of the case by means of his testimony and
the testimony of his other witness, Francisco Siyang(Syang):

Francisco Siyang was the father of Jose Siyang, the town sanitary inspector, who with his wife and four children, resided
with Francisco Siyang at his house in Centro, Angadanan. Francisco Siyang is an uncle of Vice-Mayor Villamor Tamani.
At around six-thirty in the evening of June 11, 1953 Venancio Respicio dropped at the house of Jose Siyang and invited
him for a walk. Francisco Siyang followed his son to the store of Pedro Pua which was around four blocks from their
house.

Francisco Siyang noticed that Jose Siyang was in front of Pua's store with Mayor Domingo, Policemen Alfonso Gomez,
Gaspar Ibarra, Graciano Manguelod and Melchor Tumaneng, teachers Primitivo Tallog, Teodoro Colobong and Martin
Caniero, Mariano Dalodad (a barber) and Juaning Aliangan, a farmer. Jose Siyang was leaning against a post, obliquely
at the right of Mayor Domingo. Francisco Siyang allegedly approached Jose and told him that his wife and children were
waiting for him so that they could take supper. Jose answered "yes, father".

While Francisco Siyang and Jose Siyang were standing side by side in front of Pua's store, Mayor Domingo made a signal
by stretching and raising his hand with open palm and bringing it down. Suddenly, Policeman Ibarra, who was standing in
front of Jose Siyang, fired his carbine at the latter, hitting Jose Siyang in the chest. Policeman Tumaneng followed by
firing with his carbine successive shots at Jose Siyang, hitting the latter in the breast. Tumaneng was on the right side of
Ibarra, obliquely facing Jose Siyang.

After Jose Siyang fell, Francisco Siyang went to his succor and raised him. Jose Siyang told his father: "Father, I am
dying, my children." When Jose Siyang was brought to the municipal building, he was breathing feebly. He could not talk
anymore. He expired in the municipal building. His body was brought home by Francisco Siyang.

In the morning of June 12th, Vice-Mayor Villamor Tamani with some Constabulary soldiers arrived at the house of
Francisco Siyang while the remains of Jose Siyang still lay in state. After the burial of Jose Siyang in the afternoon, a
Constabulary sergeant investigated Francisco Siyang and took him to Ilagan, where he was further investigated. He gave
a sworn statement accusing Ibarra and Tumaneng of having killed Jose Siyang (Exh. 1).

On the basis of that statement, a criminal complaint for the murder of Jose Siyang was filed on June 20, 1953 by
Constabulary Lieutenant Tomas P. Gonzales in the justice of the peace court of Angadanan against Venancio Respicio
and Policemen Ibarra, Tumaneng and Manguelod (Exh. 2, Crim. Case No. 244). The complaint was dismissed on August
12, 1953.

Other complaints for the murder of Jose Siyang and for frustrated murder perpetrated on Mayor Domingo were filed in the
justice of the peace court against Villamor Tamani, Teodoro Tamani, Domingo Cadawan, Rufino de los Santos and
Matias de la Fuente but they were later dismiss (Exh. 3 to 6, Crim. Cases Nos. 245 and 246).

In October, 1956 Mariano G. Almeda of the NBI headed a team of agents that investigated the shooting of Jose Siyang
and Mayor Domingo. Francisco Siyang was investigated orally in Ilagan by Almeda. The investigation was interrupted by
former Congressman Samuel Reyes. It was not finished.

Appellant Tamani, in support of his alibi, testified that Jose Siyang was his second cousin. Tamani was a resident of
Centro in the poblacion of Angadanan. At around three o'clock in the afternoon of June 11, 1953 he was in the house of
Vice-Mayor Villamor Tamani in Barrio Aniog. He wanted a recommendation for a job in the Angadanan Sawmill. The place
known as Centro in the poblacion, where Pedro Pua's store is located, is around two kilometers from Barrio Aniog. Vice-
Mayor Tamani gave to Teodoro Tamani the recommendation between four and five o'clock. The vice-mayor prevailed
upon Teodoro Tamani to stay and they agreed to go to town on the following day.

So, Teodoro Tamani slept in the house of his cousin, the vice-mayor, on the night of June 11th. On the morning of June
12th, Vice-Mayor Tamani and Teodoro Tamani went together to Centro in the poblacion. When they reached Centro, they
learned of Jose Siyang's death, for which reason they viewed his body in the house of Francisco Siyang. They arrived at
Siyang's house at around eight and eight-thirty in the morning. They learned that Jose Siyang was shot in front of Pedro
Pua's store.

Teodoro Tamani did not go to the Angadanan Sawmill on June 12th. He delivered the letter of recommendation on June
13th to the manager of the sawmill. He worked in the sawmill as laborer for two weeks only. He resigned due to the heavy
work. He could not remember the name of the manager of the sawmill.

He denied that he shot Jose Siyang and Mayor Domingo. He did not participate in the commission of the crime. He said
that he was in the house of Vice-Mayor Tamani on the night of June 11th.

On October 2, 1956 NBI Agent Almeda picked him up from his house for questioning in connection with the shooting of
Siyang and Mayor Domingo. Almeda was accompanied by Alfonso Salvador, a Constabulary soldier. Tamani was brought
to the municipal building. From there, he was taken to Ilagan. He was brought by Almeda to the provincial jail at
Calamagui, Isabela, where he (Tamani) was delivered to Pedro Tamayo, a prisoner who was acted as mayor of the cell
(brigada). Tamani was formally received by the provincial guard from Almeda at around six and six-thirty in the evening of
October 2nd.

Upon delivering Tamani to Tamayo, Almeda allegedly told Tamayo: "Bahala kayo rian, Tamayo, at ako ang bahala sa
iyo". Twenty minutes later, Pedro Tamayo, Juanito Dassig, Juan Pecano, Ernesto Castañeda and other convicts started
maltreating Tamani. The alleged maltreatment consisted of the following:

First, they ordered Tamani to squat on the cemented floor inside the cell (brigada).

Second, after squatting on the cement floor, they ordered Tamani to stand and then started boxing him for one hour.

Third, they removed all his clothings and put Tamani inside a drum where prisoners dropped their human waste. He was
required to stay inside the drum for five minutes, after which they brought him out and poured on him water to was his
body from the human waste.

Fourth, they made Tamani pulverized pepper and they placed the pulverized pepper in his anus, penis and testicles.

Tamani was maltreated because the tormentors wanted him to admit that he was the one who shot Jose Siyang and
Mayor Domingo. As he could not endure the maltreatment he admitted he had shot Siyang and Domingo. The
maltreatment was stopped after he made the admission.

Around ten to ten-thirty on that same night, Almeda returned to the jail and asked Tamayo: "Does he admit now?" Tamayo
answered in the affirmative. Almeda then took Tamani out of the jail and brought him to the second floor of Puring's
Restaurant. Almeda called for NBI Agent No. 101 who came out of a room with a typewriter. Agent No. 101 placed his
typewriter on a table. Almeda told Tamani "Now, I am going to take your statement that you shot Jose Siyang and Mayor
Domingo."

At first Tamani told Almeda that he knew nothing about the shooting because he was in Barrio Aniog when Domingo and
Siyang were shot. Thereupon, Almeda told Tamani not to deny the shooting because Juana Vitorri Vda. de Ibarra
recognized him when he stumbled before the shooting at a place near the fence between the lots of Pedro Pua and Mrs.
Ibarra. Tamani maintained his innocence about the shooting.

Thereafter, Almeda and NBI Agent No. 101 slapped the face of Tamani. They brought him to a toilet. They pushed his
head into the toilet bowl (iniodoro). They held his hair and pushed his face toward the mouth of the toilet bowl for five
minutes. When Tamani could not endure the torture anymore, he told Almeda that he would admit the crime. Almeda and
Agent No. 101 brought Tamani to the table on the second floor of Puring's Restaurant. Almeda told Tamani: "You better
admit now that you shot the two victims, that you took the gun from Matias de la Fuente and that Villamor Tamani and
Rufino de los Santos are the masterminds".

Tamani admitted that version for fear that he would again be maltreated. His affidavit, Exhibit A, was signed at Puring's
Restaurant on the night of October 2, 1956. The contents of Exhibit A "are all the versions of Director Almeda". Tamani
admitted his signature and thumbmarks in Exhibit A. On the following morning of October 3rd, Almeda and Agent No. 101
brought back Tamani to the jail.

Tamani admits that he signed Exhibit B also, his supplementary confession. However, he insists that he signed it on the
night of October 2nd and not on October 3rd. He said that he never excluded Domingo Cadawan and that he never
incriminated himself as the triggerman. He might have signed Exhibit B in connection with his signing of Exhibit A on the
night of October 2nd because when he signed Exhibit A, there were several sheets of paper which he signed and
thumbmarked. He allegedly did not know the contents of Exhibit B when he affixed his signature thereon. He says that the
incriminatory statements in Exhibits A and B are not true. (See pp. 3-4, 17-28, Appellant's Brief).

The trial court rejected the foregoing version of the defense after noting the improbabilities in Francisco Siyang's
testimony and after concluding that the appellant had not overcome the presumption that his confession was voluntarily
executed.

The shooting incident was undoubtedly another episode in the political rivalry between Mayor Domingo and Vice-Mayor
Tamani. That circumstance has given a political complexion to these two cases. It may explain why the evidence has
become muddled, if not baffling. It was to be expected that, to suit the ulterior motivations of the contending parties there
would be same insidious manipulation of the evidence.

Thus, on June 12th, the day following the shooting and before Jose Siyang was interred, Constabulary soldiers,
accompanied by Vice-Mayor Villamor Tamani, investigated Francisco Siyang (51-52 tsn Aug. 26, 1960). On June 14,
1953, or four days after the shooting and while Mayor Domingo was in the hospital, Francisco Siyang (the uncle of
Villamor Tamani and the star witness for the defense and the father of the victim, Jose Siyang) executed an affidavit in
Ilagan about the shooting. He made it appear in that statement that Patrolmen Ibarra and Tumaneng, two followers of
Mayor Domingo, were the killers of Jose Siyang and that they commenced to shoot Siyang when Mayor Domingo made a
prearranged signal (Exh. 1).

As already noted, on the basis of that affidavit, Constabulary Lieutenant Tomas P. Gonzales filed in the justice of the
peace court of Angadanan a complaint for murder against Policemen Ibarra, Tumaneng and Manguelod and one
Venancio Respicio, an alleged nephew of the mayor (Exh. 2, Crim. Case No. 244). According to Francisco Siyang's
affidavit, Respicio, a compadre of Jose Siyang, acted as decoy in bringing Jose Siyang to the place where he was
assassinated. Domingo repeatedly denied that Respicio was his relative by consanguinity or affinity. Francisco Siyang
made it appear that his son was murdered because he testified against Domingo in the case where the latter was charged
with theft. Because of that theft case Domingo was suspended. That murder complaint (Exh. 2) against the followers of
Mayor Domingo was dismissed.

After the mayor was released from the hospital, he and the chief of police investigated the shooting. The chief of the
police filed a complaint for murder dated July 8, 1953 against Vice-Mayor Tamani, Teodoro Tamani, Rufino de los Santos,
Matias de la Fuente, Arsenio Dayang and Medardo Tamani.<äre||anº•1àw> The complaint was amended by including
Domingo Cadawan as a defendant and excluding Dayang and Medardo Tamani (Exh. 3 and 4, Crim. Case No. 245). For
the shooting of Mayor Domingo, a complaint for frustrated murder was filed by the chief of police against the same
persons (Exh. 5 and 6, Crim. Case No. 246).
Both complaints were dismissed apparently for lack of evidence. As the shooting was unsolved crime, the intervention of
the NBI became necessary.

On June 4, 1956 Francisco Siyang executed an affidavit in Ilagan before NBI Agent No. 39. He deviated from his 1953
affidavit by naming Melchor Tumaneng alone ("Melchor Tomines") as the assassin of his son, Jose Siyang. He stuck to
his original theory that Mayor Domingo masterminded the assassination of his son (Exh. G).

As already noted, four months later, or on October 2 and 3, 1956, an NBI investigating team headed by Mariano G.
Almeda, a lawyer and an assistant to the NBI Director, secured a confession from appellant Teodoro Tamani that he, with
the assistance of Domingo Cadawan, shot Mayor Domingo and Jose Siyang (Exh. A and B). It may be assumed that the
NBI was asked to handle the case so that political considerations would not color and influence the course and outcome
of the investigation.

Before Tamani executed his confession, Almeda and his agents, assisted by Constabulary soldiers, interviewed several
persons in Angadanan and made an ocular inspection of the scene of the crime. They investigated Mrs. Ibarra and her
daughter. They learned that Teodoro Tamani had entered Mrs. Ibarra's yard and was recognized by her and that,
immediately thereafter, she heard gunshots from the direction where Tamani had posted himself. Thus, Tamani became a
prime suspect. He was apprehended and brought to the house of Mrs. Ibarra for a confrontation. Almeda testified:

Q. What did you do, if any, when Teodoro Tamani was brought to the house of Juana Vittori Vda. de Ibarra? — A. In the
presence of Juana Vittori Vda. de Ibarra and her daughter I confronted them and asked Juana Vittori Vda. de Ibarra and
her daughter whether they knew Teodoro Tamani and both claimed that he is the very same fellow who entered the yard
that night with a gun and also they heard shots from the direction of the said accused Teodoro Tamani after which
Teodoro Tamani was trembling and he became pale.

Q. And did Teodoro Tamani say anything when he was pointed out by Juana Vittori Vda. de Ibarra and her daughter? —
A. He did not utter anything. He simply became pale and trembling. (16 tsn June 12, 1958, II Valencia).

Tamani's confession (Exh. A and B) was the basis of the information for murder and frustrated murder against him in
these two cases.

Findings: Appellant Tamani's defense of alibi, which can be fabricated with facility, cannot be given serious consideration.
Assuming that he was in Barrio Aniog in the afternoon and night of June 11th, it was physically possible for him to be at
the scene of the shooting at the time that it was perpetrated and return to the house of Vice-Mayor Tamani in Barrio
Aniog. That place was only two kilometers from the store of Pedro Pua. The victim was shot in front of the store.

The settled rule is that an alibi, to be tenable, must be such as to preclude the possibility of the presence of the accused
at the scene of the crime or its immediate vicinity at the time of its commission. "The accused must show that he was at
some other place for such period of time that it was impossible for him to have been at the place where the crime was
committed at the time of its commission" (People vs. Lumantas, L-28355, July 17, 1969, 2 SCRA 764, 768).

Appellant's alibi does not satisfy that basic requirement. Moreover, it was not corroborated by Vice-Mayor Tamani or by
any other person. Its concocted character is manifest.

Appellant Tamani argues that he signed his confession, Exhibit A, because he was tortured or maltreated. He claim that
he does not remember having signed his supplementary confession (Exh. B) although he admits the authenticity of his
signature and thumbmark therein.

NBI Agents Almeda and Mendoza testified that Tamani's sworn statements were freely executed. Tamani's testimony on
the alleged maltreatment was not corroborated. As correctly noted by the Solicitor General, certain details in the
confession, which only Tamani could have supplied, are indications of its voluntariness and give it spontaneity and
coherence.

Those details are (a) that Teodoro Tamani and Cadawan conferred with Vice-Mayor Villamor Tamani in the latter's house
at Aniog at three o'clock in the afternoon of the day preceding the shooting; (b) that Matias de la Fuente and Rufino de los
Santos were present at the conference and it was decided to liquidate Mayor Domingo to enable the vice mayor to act as
mayor; (c) that De la Fuente handed to Tamani and Cadawan the carbine to be used in the killing; (d) that Cadawan and
Tamani slept in the vice-mayor's house on the night of June 10, 1953; (e) that Cadawan went to the poblacion in the
morning of June 11th in order to ascertain the whereabouts of Mayor Domingo; (f) that Cadawan returned in the afternoon
and informed Tamani that Domingo was at Pua's store; (g) that Cadawan stumbled in the yard of Mrs. Ibarra; (h) that after
firing the shots, the two returned to the vice-mayor's house; (i) that Teodoro Tamani slept in the house of the vice-mayor
after the assassination; (j) that Jose Siyang was standing on the right side of Mayor Domingo "along the line of fire"; (k)
that Jose Siyang was his second cousin and the second cousin of the vice-mayor and (l) that the hole in the gate was
three inches in diameter.

Those circumstances might not have been known if the confession had been executed under duress. NBI Agents Almeda
and Mendoza could not have manufactured all these details.

There is one significant inconsistency in appellant Tamani's testimony on March 26, 1962 which impairs his credibility. He
claimed that his supplementary confession, Exh. B, was translate to him in Tagalog but that he did not understand
Tagalog on or before October 3, 1956 (117 tsn I Valencia). However, when he testified on January 11, 1962 and he was
asked to repeat what NBI Agent Almeda told in Tagalog to the prisoner, Pedro Tamayo, Tamani was able to repeat
verbatim the word: "Bahala kayo rian Tamayo at ako ang bahala sa iyo" (83 tsn II Calixto). He repeated the same Tagalog
words in the later part of his testimony (86 tsn) and at the hearing on April 5, 1962 (127 tsn I Valencia).

Agent Almeda testified that appellant Tamani understands English, being a former policeman, and that Tamani read
Exhibit B, which is in English and which NBI Agent Mendoza translated to him in Ilocano. Tamani did not deny that he
knows English. His petition to this Court that he be granted bail, which petition bears his signature, is in English.
(See Rollo).

There is no merit in appellant Tamani's contention that the trial court erred in not giving credence to the testimony of
Francisco Siyang (Syang) that Jose Siyang was shot by policemen Ibarra and Tumaneng, the latter being allegedly a
houseboy of Mayor Domingo. The inconsistencies on vital details in Siyang's two affidavits and his testimony signify that
he deliberately perverted the truth. His testimony exhibits the earmarks of untrustworthiness. It was squarely refuted by
Martin Caniero and Teodoro Colobong. It should be underscored that Francisco Siyang is the uncle of the vice-mayor (58
tsn Aug. 26, 1960).

In his 1953 affidavit (Exh. 1) he declared that Policemen Ibarra and Tumaneng shot his son, Jose Siyang, whereas, in his
1965 affidavit (Exh. G) he alleged that only Tumaneng (Tomines) shot his son.

Francisco Siyang, a farmer, was already seventy-six years old when he testified in 1960. On direct examination he
testified that his son was shot in the breast by Gaspar Ibarra, who was immediately followed by Melchor Tumaneng.
Tumaneng allegedly hit Jose Siyang in the left part of the breast below the clavicle (48 tsn I Valencia). That was also
Francisco Siyang's declaration in his 1953 affidavit (Exh. 1): that Ibarra fired first.

However, Francisco Siyang on cross-examination testified differently. He declared that Tumaneng fired first and that the
second shot was fired by Ibarra. Francisco Siyang said that he was sure that Tumaneng fired first at his son (89, 92, 93
tsn I Valencia). The following is an example of his confusing testimony:

Q. How many shots did Gaspar Ibarra fire at your son? — A. Only one, sir.

Q. Who fired the two first shots, if you know? — A. Melchor Tumaneng, sir.

Q. Did you actually see or not the two successive shots at your son? — A. I saw him, sir.

Q. Who fired the other two shots which according to you your son was hit by five (5) gunshots — A. Gaspar Ibarra, sir.

Q. Do you mean to say that Gaspar Ibarra fired first one shot and then two shots, all in all three shots? — A. Gaspar
Ibarra fired only one, sir. (93 tsn I Valencia).

Q. Who was the first who shot your son, according to you? — A. Melchor Tumaneng.

Q. Where was Melchor Tumaneng at the moment he shot you? — A. He was at the gate of the fence.

Q. But he was inside with the group of persons at the media de agua of the store of Pedro Pua. Is it? — A. Yes, sir (21 tsn
I Calixto).
NBI Agent Almeda, after investigating Francisco Siyang, found his theory incredible. Almeda did not believe that
Francisco Siyang could have seen or identified the assailant who was behind the fence. According to Almeda, Francisco
Siyang merely suspected certain person as the killers of his son. He could not identify positively the killers.

Other grave inconsistencies in Francisco Siyang's affidavits and testimony are discussed in the trial court's decision.

Appellant Tamani further contends that the trial court erred in relying on thirteen circumstances in order to convince itself
that Tamani was the culprit. Among those circumstances are that Tamani went into hiding sometime after the shooting
and that the motive for the attempted murder of Mayor Domingo was to prevent his reinstatement and to enable the vice-
mayor to become permanent mayor and ensure that appellant Tamani would again become a policemen.

Judge Pedro C. Quinto's painstaking analysis of the evidence and his conscientious scrutiny of the discrepancies in the
testimony and affidavits of Francisco Siyang demonstrate that the guilt of Tamani has been proven beyond reasonable
doubt. A thorough perusal of the record leads to the conclusion that the trial court did not commit the errors imputed to it
by the appellant.

The act of shooting Siyang at a distance, without the least expectation on his part that he would be assaulted, is murder
because of the attendance of the qualifying circumstance of treachery (alevosia). Appellant Tamani deliberately employed
a mode of execution which tended directly and specially to ensure the consummation of the killing without any risk to
himself arising from the defense which the victim could have made (Par. 16, Art. 14, Revised Penal Code). Siyang,
unarmed and without any intimation that the gunshots intended for Mayor Domingo would hit him, was not in a position to
defend himself against the unseen assailant. Treachery may be appreciated even if there was a mistake as to the victim
(People vs. Mabug-at, 51 Phil. 967; People vs. Guillen, 85 Phil. 307).

As to Mayor Domingo, the accused was not able to perform all the acts of execution which would consummate the killing
(Art. 6, Revised Penal Code). The accused was not able to do so, not because of his spontaneous desistance but
because he failed to inflict on the mayor a mortal wound. The mayor was able to avoid the second volley by taking refuge
in the store of Pedro Pua. But there is no doubt that the accused was animated by the intent to kill and that the shooting
was perpetrated in a treacherous manner. Hence, the offense against the mayor is attempted murder (People vs. Kalalo,
59 Phil. 715).

The alternative contention of appellant Tamani that should be convicted of the complex crime of homicide with lesiones
graves is not well-taken. As already pointed out, the killing of Siyang cannot be characterized as homicide. It was qualified
by treachery. There was intent to kill in the shooting of the mayor. So, the wound inflicted on him cannot be regarded as a
mere physical injury. It was overt act manifesting the willful design of the accused to liquidate the mayor.

The infliction of the four fatal gunshot wounds on Siyang and of the wound in the palm of the mayor's right hand was not
the result of a single act.<äre||anº•1àw> The injuries were the consequences of two volley of gunshots. Hence, the
assaults on Siyang and the mayor cannot be categorized as a complex crime.

To convict the accused of the complex crime of murder with attempted murder would result in the imposition of the death
penalty. That eventuality would be worse for him.

There being no mitigating nor aggravating circumstances, the penalty of reclusion perpetua should be imposed on the
appellant for the killing of Siyang. (Arts. 64 [1] and 248, Revised Penal Code). The use of the term "life imprisonment" is
not proper (People vs. Mobe, 81 Phil. 58).

WHEREFORE, the appeal is dismissed with costs against the appellant. So ordered.

Zaldivar, Fernando and Fernandez, JJ., concur.1äwphï1.ñët

Barredo, J., took no part.

Separate Opinions

ANTONIO, J., concurring.:

In the dismissal of the appeal on the ground that the judgment of the laws must become final after the lapse of the period
for perfecting an appeal. (Sec. 7, Rule 120.)

Separate Opinions

ANTONIO, J., concurring.:

In the dismissal of the appeal on the ground that the judgment of the laws must become final after the lapse of the period
for perfecting an appeal. (Sec. 7, Rule 120.)
G.R. Nos. L-68311-13 January 30, 1992

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
LAPNAYO BUKA @ "LAPNAYO LIBAT", PRAL NGAY, ANGEL PRAL, BEREN MANDONG, PURONG BILAAN @
"PURONG" and TWO JOHN DOES, accused. ANGEL PRAL and BEREN MANDONG, accused-appellants.

The Solicitor General for plaintiff-appellee.

Public Attorney's Office for accused-appellants.

DAVIDE, JR., J.:

At around noontime on 14 December 1978, a weapons carrier with several passengers on board was ambushed by
armed men in Sitio Samlang, Datal Batong, Malungon, South Cotabato, causing the deaths of Elena Pamoso and Estelita
Imarga and the physical injuries of Felipe Noquera. As a consequence thereof, three (3) separate informations were filed
on 5 March 1980 against Lapnayo Buka, Angel Pral, Pral Ngay, Beren Mandong, and Purong Bilaan with the then Court
of First Instance (now Regional Trial Court) of South Cotabato. The first charges them with the crime of Murder in
connection with the death of Elena Pamoso, committed as follows:

That on or about the 14th day of December, 1978, at 11:00 o'clock in the morning to 12:00 o'clock noon time, at Sitio
Samlang, Barangay Datal Batong, Municipality of Malungon, Province of South Cotabato, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused said to be in company with two John Does, whose
identities are still unknown and who are still at-large armed with assorted high powered weapons such as Surit, shotgun
rifle and garand rifle and with evident premeditation and with deliberate intent to kill, did then and there willfully, unlawfully
and feloniously ambush, attack, assault and shoot with the use of assorted firearms at the weapon (sic) carrier of Edon
Escobillo, boarded by 15 passengers and as a result thereof, inflicting and mortally wounding Elena Pamuso which
resulted to (sic) her instantaneous death.

CONTRARY TO LAW, with qualifying circumstances of evident pre-meditation and with generic aggravating circumstance
that the act was committed by a band and with deliberate disregard of the respect due the offended (sic) party on account
of her sex, being a woman. 1 (emphasis supplied)

Said case was docketed as Criminal Case No. 1893.

The second 2 charges them with Frustrated Murder in the case of Felipe Noquera on account of the wounds he suffered
which would have "ordinarily cause his death . . ., but nevertheless did not produce it by reason of causes independent of
their will that is, due to the timely and able medical assistance rendered to said Felipe Noquera which prevented his
death." The same qualifying and aggravating circumstances were alleged in the information except for the aggravating
circumstance of disregard of respect due the offended party on account of her sex. This was docketed as Criminal Case
No. 1894.

The third, 3 docketed as Criminal Case No. 1895, charges them with the crime of Murder in connection with the death of
Estelita Imarga and alleges the same qualifying and aggravating circumstances as those alleged in Criminal Case No.
1893.

The foregoing cases were ordered archived by the trial court on 30 September 1980 because all the accused were still at
large; nevertheless, warrants for their arrest were issued. 4

On 30 July 1981, the prosecution filed a motion to revive the cases which asked for the issuance of an alias warrant of
arrest. 5 On 6 November 1981, accused Beren Mandong and Angel Pral were arrested and brought under the custody of
the law. 6 The others remain at large up to the present.

The three (3) cases were then consolidated for joint trial as against Beren Mandong and Angel Pral, who pleaded not
guilty when arraigned on 19 November 1981. 7
At the joint trial on the merits, the prosecution presented ten (10) witnesses, while the defense presented eight (8)
witnesses, including the appellants themselves. 8 All of the witnesses testified before then Judge Pedro Samson C.
Animas.

After joint trial on the merits, the lower court, per Judge Marcelino R. Valdez, rendered a consolidated
decision, 9promulgated on 20 January 1984, finding the accused Angel Pral and Beren Mandong each guilty of "two (2)
crimes of murder" and of the crime of frustrated murder and sentencing them as follows:

WHEREFORE AND IN VIEW OF ALL THE FOREGOING, this Court finds the accused Angel Pral and Beren Mandong
guilty beyond reasonable doubt and hereby convicts each of them of two crimes of murder and Frustrated Murder.

As no mitigating nor (sic) aggravating circumstances were proven, this Court hereby sentences each of them to suffer the
penalty of Reclusion Perpetua in Crim. Cases Nos. 1895 and 1893. However, in Crim. Case No. 1894 accused is hereby
sentenced to an indeterminate penalty of eight (8) years and twenty (20) days of Prision Mayor as Minimum to fourteen
(14) years, ten (10) months and twenty (20) days of Reclusion Temporal as maximum and to pay the following damages
to the heirs of the victims, to wit:

a) Twelve Thousand (P12,000.00) Pesos each by reason of the death of Estelita Imarga and Elena Pamoso and Six
Thousand (P6,000.00) Pesos for the Frustrated death (sic) of Felipe Noquera;

b) Five Thousand (P5,000.00) Pesos each in concept of actual and moral damages;

c) Five Thousand (P5,000.00) Pesos each in concept of exemplary damages and to pay the cost.

SO ORDERED.

The evidence for the prosecution upon which the convictions were based is summarized by the trial court as follows:

On December 14, 1978, the victim with some other companions were bound for General Santos City from Miasong
Malungon, South Cotabato, riding on a weapons carrier. Upon reaching Sitio Samlang, Brgy Datal Batong, of said
Municipality, at around 11:30 A.M. they were ambushed by the accused resulting to (sic) the death of Estelita Imarga,
Elena Pamoso and wounding (sic) Felipe Noquera. The weapons carrier was driven by Paquito Alvarez. Per Medical
report the cause of death of Estelita Imarga was "gun shot wounds, left chest," Elena Pamoso was "gun shot wounds,
right chest" (Exhibits "D" and "D-1") while Felipe Noquera suffered injuries, to wit:

Wound — gunshot with avulsion of outer layer of skin 4 cm. long, one cm. wide left interscapular area.

Wound — gunshot with avulsion of outer layer of skin, 6 cm. long, one cm. wide right, infrascapular area. (Exhibit "A")

Paquito Alvarez, driver of the weapons carrier which was ambushed declared that he saw the ambushers with guns and
recognized two of them as Beren and Purong, the real name (sic) are Beren Mandong and Purong Bilaan. He recognized
these two among the ambushers because he is acquainted with them long time (sic) before the incident. The others were
new to him and hence did not recognize them.

When they were shot at, he speed (sic) up his truck until they reached Datal Kangil, a place three kilometers, more or
less, from the ambush scene where he asked for help from the Barangay Captain. They went back to retrieve one of the
victims Estelita Imarga who fell from the weapons carrier and brought her to Datal Kangil (TSN, pp. 7-14, Feb. 1, 1982)

Felipe Noquera, the one who sustained gun shot wounds but escaped death, testified that they were ambushed at Sitio
Samlang, Datal Batong, Malungon, at around 11:00-11:30 o'clock A.M., on December 14, 1978, on their way to General
Santos City from Brgy. Miasong, of said Municipality, riding on a weapons Carrier (sic). He saw the ambushers and
recognized Angel, Beren, Pral and Lapnayo whose real names are Angel Pral, Beren Mandong, Ngay Pral, Lapnayo Buka
and Purong Bilaan. The witness was acquainted with these persons long (sic) time before the incident for he used to see
them in Datal Batong. He (Noquera) being a driver himself of a weapons carrier. He identified Angel Pral and Beren
Mandong in court during his open testimony. (TSN, pp. 25-29, Feb. 2, 1982). He saw each of these two ambushers with
long firearms. In spite of the rigid cross examination on this witness he stood pat on the identity of the two accused,
testifying firmly that he saw them (accused) holding long firearm each, but he did not know what kind firearms were those.
He was investigated by the office of the Provincial Fiscal and he told the same version — re — the identity of these two
accused. (TSN, pp. 39-40, Feb. 2, 1982)
Luis Esconde, one of the persons on board the weapon (sic) carrier at the time of the of the time (sic) of the ambushcade
(sic) testified that upon reaching sitio Samlang, he saw the ambushers more than five, who fired at them and he
recognized three of them, Lapnayo, Beren and Angel, whose real name (sic) are Lapnayo Buka, Beren Mandong, and
Angel Pral. He did not recognized (sic) the others. He readily pointed to the accused Angel Pral and Beren
Mandong when he was made to identify them in Court. He is acquainted with said accused because he usually see (sic)
them in Datal Batong during market days, cockfighting and card games. He saw the victims of the ambush Estelita Imarga
and Elena Pamoso who died immediately thereafter, while Felipe Noquera suffered gun shot wounds (TSN, pp. 46-51,
Feb. 3, 1982). Upon rigid cross-examination this witness also stand (sic) pat on the identity of these two accused whom
he saw holding long firearm (sic) each.

Ricardo Salvador, one of the persons on the (sic) board the weapon (sic) carrier at the time and date of the ambush,
stated that he saw the ambushers, but he only recognized Beren, whose real name is Beren Mandong, also holding a
long firearm. He saw the victims Estelita Imarga and Elena Pamoso who died immediately thereafter while Felipe Noquera
suffered gunshot wounds. (TSN, pp. 61-64, Feb. 3, 1982). On cross (sic), this witness firmly stated that he knew
personally Beren Mandong before the incident because he usually saw him in Datal Batong, while the rest of the
ambushers were not known to him, hence, he could not recognize them (TSN, pp. 64-65, Feb. 3, 1982).

The trial court rejected the defense of alibi presented by both accused, summarizing and disposing of it as follows:

Conversely, accused Angel Pral took up the defense of Alibi. He denied having participated in the ambush killing at Sitio
Samlang, Brgy. Datal Batong, Malungon, South Cotabato, on December 14, 1978, for at the time of the alleged ambush
he was in General Santos City, together with his father, Fral Ngay; that on December 13, 1978 he went to General Santos
City with Elisias Pempillo with (sic) whom he sold his corn produce, that they arrive (sic) General Santos City at around
3:00 o'clock P.M. on that date; that he did not go back to Datal Batong on December 14, 1978 but slept in Llidos home
General Santos City (sic) and went back to Datal Batong only on December 15, 1978; that Lising Pempillo the buyer of his
corn was the only one who returned to Datal Barong on the 13th of December and went back to General Santos City on
December 14, 1978, arriving thereat at 1:00 o'clock P.M. (TSN, pp. 174-178, July 22, 1982).

On cross (sic), this accused admitted he has not gone to school; that he is an illiterate and does not know the month of
the year; that he knew only that he had been selling his corn produce in the month of December, 1978, because he was
told by the christians (sic) thereat; that he harvested his corn on December 9, 1978 and finished the same on December
12; that he remembered very well December 9-12, when he harvested his corn, December 13, when he sold his corn to
Lising Pempillo, December 14, when he slept in General Santos City and December 15, when he went back to Datal
Batong. But when he was ask (sic) the date when he testified on July 22, 1982, he answered "I don't know." Asked further
how he remembered those dates, December 9, 12, 13, 14 and 15, 1978, he answered that he was informed by the
christians (sic) thereat, that those were the dates (TSN, pp. 180-184, July 22, 1982). Then this accused was again asked
the date when he was born and he said he does not know; he does not also know when he got married, nor does he know
the birth date of his child. He does not also know the distance from Dadiangas to Datal Batong, nor (sic) does he know
how to tell the time. (TSN, pp. 185-186, July 22, 1982).

The version of this accused was corroborated by Elisias Pempillo, the businessman with (sic) whom accused Angel Pral
sold his corn harvest. This witness testified that he knew personally Angel Pral; that on December 12, Angel Pral informed
him that his corn was ready for hauling; that he had been hauling Angel Pral's corn from December 12-13 when he hauled
the corn to General Santos City on the latter date bringing with him the accused. When this witness return (sic) to Datal
Batong on December 13, 1978, Angel Pral was left in General Santos City. He (Pempillo) again hauled the corn on
December 14, arriving in General Santos City at around 1:00 P.M. where he saw accused Angel Pral. On December 15,
1978, all of them returned to Datal Batong (TSN, pp. 131-136, July 20, 1982). It took more than a year when Angel Pral
was apprehended and brought to the custody of the law. This witness knew the arrest of Angel Pral by the police
authorities but inspite of his knowledge, he did not care to inform the police authorities that Angel Pral was innocent of the
crime charged against him. He did not also tell anybody about what he knew about Angel Pral, that this accused was with
him since December 13-15, 1978; that Angel Pral was in General Santos City on December 14, the date of the ambush
(TSN, pp. 138-139, July 20, 1982).

However, this witness was confronted with his sworn statements before the fiscal's (sic) Office taken on July 17, 1979,
where he stated that on December 12, 1978 they were not able to go back to General Santos City, but instead they slept
in Malungon, South Cotabato in their house at Data (sic) Batong. Then he was asked.

Q So what you declared here before the Investigating Fiscal was not true?
A I cannot remember it correctly but what I can remember is that I delivered corn on December 13, and 14 (TSN, pp. 143,
July 20, 1982).

Asked further how he came to remember the dates of December 13, 14 and 15, 1978, and (sic) he answered: "Because
those were the dates, I delivered corn." However, when he was asked the date when he testified before the Provincial
Fiscal's Office, he could not remember. Then his credibility was tested. He was asked how many children he has and he
answered "Twelve". When he was asked the date of birth of his tenth child, he answered: "I cannot recall." Of the seventh
child, Charlin, he said, he cannot recall. Of the twelve (sic) child, he said he cannot remember. Of the eleventh, he could
not also remember. Of the sixth child, he said he cannot also remember. Under the circumstances, there is indeed a
doubt as to the credibility of this witness. The veracity for (sic) truth of his testimony is very doubtful. What he could
remember only were those dates, December 13, 14 and 15, 1978, in comparison with dates of more significant events,
which goes to show, that such line of testimony could be dubbed as coach (sic) testimony.

On the other hand, accused Beren Mandong has the same nature of defense. He is a bilaan (sic), and an illiterate (sic).
He was arrested sixteen months after the complaint was filed. He declared that at the time and date of the ambush on
December 14, 1978, he was farming in the farm of Serafin Sunio at Datal Batong as a hired laborer; that he knew of this
date because Serafin Sunio told him; that when he was asked the date he testified in Court, he answered: "I don't know"
(TSN, pp. 199-201, Nov. 18, 1982).

The foregoing version was affirmed by Serafin Sunio, that on December 14, 1978, he had his land at Datal Batong cleared
and he employed 24 laborers, out of whom were more than ten bilaan (sic). These laborers had been working at 7:00
A.M. to 11:30 A.M., and one of them was accused Beren Mandong. They worked the whole day up to 5:00 P.M. under the
direct supervision of Serafin Sunio. This witness learned of the ambush at Sitio Samlang, Datal Batong which is three
kilometers away from his farm. (TSN, pp. 159-161, July 21, 1982). There were of course clear and distinct descripancies
(sic) between the open testimony of this witness in open court with that of his sworn statement with the Fiscal's Office
regarding the number of laborers he employed on December 14, 1978 from 24 to 33 in number. He also testified in open
Court that there were more christians (sic) than bilaans (sic) while in his sworn statement with the Fiscal's Office there
were more Bilaans than christians (sic); and when asked what were their names he only know (sic) five, namely: Pilang,
Beren, Oro and Ondan, and nothing more. The probative value of this line of testimony is fatally infirmed by its
unreliability.

Alibi is a week defense and cannot prevail over the testimony of truthful witnesses. The reason is that alibi is easy of (sic)
fabrication. (Peop. vs. Bulawin, 29 SCRA 710; Peop. vs. Gomez, 28 SCRA 440). Court should exercise great caution in
accepting the defense of alibi because it is easily concocted (Peop. vs. Bagsican, 6 SCRA 400). In order that an (sic) alibi
as a defense may prosper, the evidence to support it must be clear and convincing as to preclude the possibility of the
accused's presence at the scene of the crime, while the evidence as to its identification must be weak and insufficient.
(Peop. vs. Jamero, 24 SCRA 207; Peop. vs. Lumantas, 28 SCRA 764; Peop. vs. Alcantara 33 SCRA 813). To establish
alibi, the accused must show that he was at some other place for such a period of time that it was impossible for him to
have been at the place where the crime was committed at the time of its commission (Peop. vs. Lumantas, 28 SCRA
754). The claim of the accused that they were far from the scene of the crime is not credible, where there is probability
that they might have spread out in the neighboring towns and barrios to eliminate their enemies (Peop. vs. Corpuz, 1
SCRA, 33; Peop. vs. Almeriz, 3 SCRA 252). The defense of alibi cannot prevail over the positive identification of
witnesses (Peop. vs. Baiaga, 1 SCRA 283; Peop. vs. Estrada, 22 SCRA 111).

All the foregoing doctrines play a vital role against the defense of alibi of the accused. It could not be improbable for the
accused to have been at the scene of the ambush from the place where they allegedly were on the date of December 14,
1978, considering the distance which is approachable within few (sic) minutes or hours. Were it a fact that the accused
were not definitely identified by witnesses for the prosecution, then the accused (sic) defense of alibi assumes
importance. But such was not the case, for the accused were definitely identified by the prosecution witnesses to be the
companions of the ambushers on that fatal day. Not only were they definitely identified but that after the commission of
the offense, on December 14, 1978 these two accused went into hiding and were only arrested on November 6, 1981 or
there about (sic), after a period of over two years. This (sic) cases were archived on September 30, 1980, for the accused
escaped from their permanent residence, at Datal Batong, Miasong, Malungon South Cotabato, and up to the present
their other co-accused are still at large and could (sic) not be found. "The wicked fleeth while no man pursueth but the
righteous are as bold a (sic) lions," goes the saying. There could have been no other to have stage the ambushcade (sic)
except the herein and their gang, for there were no other persons seem (sic) by the prosecution witnesses except the
herein accused and their co-accused who are still at large. On the foregoing scores, this court arrives at the conclusion
that the presumption of innocence of the accused as provided in the Constitution had been overcome. The denials of the
accused to have (sic) participated in the ambushcade (sic) are ineffective to overcome the evidence of the prosecution,
particularly the positive testimonies of Felipe Noquera and Luis Esconde, passenger (sic) of the weapons carrier when the
ambush was committed. Surprisingly the conduct of these accused right after the shooting incident has been very
suspicious, for immediately thereafter all the accused escaped and could no longer be found. Compared to the true
identification and testimonies of the prosecution witnesses this court does not doubt their veracity for being disinterested
witnesses and whose impartiality has not been placed in doubt.

As to the testimony of Mayor Felipe Constantino of the Municipality of Malungon that there has been a confrontation in
July, 1980 with some of the rebels responsible of (sic) the ambushcade (sic) on December 14, 1978, with Col.
Bumanglang and a Major from the Army, 3rd Inf. Btn., wherein four of the rebels namely: Olding Golac, So Dol, Toy
Maliang, and Dano Pandayong admitted responsibility for the ambush, this court believes that said result of the alleged
confrontation cannot be taken on its face value "hook line and sinker" because of the hearsay of the said confrontation.
The confrontation was allegedly made in July, 1980, after the case had already been filed in court. However, this witness,
a Municipal Mayor at that, did not care to give the complete details of such confrontation to the court for its guidance,
especially at that time when the accused were all still at large and warrants of arrest had been issued against them. Nor
was there an information given to the prosecution arm of the government regarding said confrontation whereby four of the
surrenderees admitted responsibility of (sic) the ambushcade (sic). And if the accused were not really the perpetrators of
the dastard (sic) crime, why is it that immediately after December 14, 1978, these accused could no longer be found at
their respective residence (sic) and could not be apprehended until November 6, 1981 when two of them brought to the
custody of the law. Besides, the surrenderees were not brought to court before the alleged amnesty was given to them, so
this case should have been resolved pursuant to law. Under the circumstances, this court cannot exculpate the accused
based on a flimsy defense of alibi, against the clear, convincing testimonies of government witnesses that the accused
were indeed the ones responsible for the murder and frustrated murder or ambush shooting resulting to (sic) the
instantaneous death of Estelita Imarga, Elena Pamoso and wounding Felipe Noquera. 10

In convicting each of the accused for murder as charged in Criminal Cases Nos. 1893 and 1895 and frustrated murder in
Criminal Case No. 1894, the trial court considered the qualifying circumstances of treachery and evident premeditation
since the "ambush or shooting was so sudden and unexpected assault (sic) perpetrated by all the accused insured the
killing of the two defenseless victim Estelita Imarga and Elena Pamoso and the frustrated death (sic) of Felipe
Noquera." 11

Unable to accept the verdict, accused Angel Pral and Beren Mandong, hereinafter referred to as the Appellants, filed their
Notice of Appeal 12 on 6 February 1984 wherein they manifested their intention to appeal to the then Intermediate
Appellate Court (now Court of Appeals). In view of the penalty imposed, the appeal should have been brought directly
before this Court. The Intermediate Appellate Court, upon receipt of the records of the cases, correctly forwarded the
same to this Court on 15 August 1984; 13 the cases were then docketed as G.R. Nos. 68311-13.

In their Brief, Appellants assign only one (1) error:

THE TRIAL COURT ERRED IN CONVICTING THE APPELLANTS OF TWO (2) CRIMES OF MURDER AND
FRUSTRATED MURDER NOTWITHSTANDING THE INSUFFICIENCY OF EVIDENCE ADDUCED BY THE
PROSECUTION TO PROVE THEIR GUILT BEYOND REASONABLE DOUBT. 14

and in support thereof, they assert and argue that:

(a) Their defense of alibi should have been given more credence considering that it is corroborated by two (2) other
people, namely Elisias Pempillo (corroborating the alibi of Angel Pral) and Serafin Sunio (corroborating the testimony of
Beren Mandong); 15

(b) The testimonies of Mayor Felipe Constantino of Malungon, South Cotabato and Barangay Captain Venancio Malayon
of Barangay Bilaan 16 that the real ambushers had already surrendered and had been granted amnesty, clearly show their
innocence; said testimonies should have been given more weight by the trial court;

(c) The testimonies of the prosecution witnesses, heavily relied upon by the trial court in convicting the Appellants, were
full of inconsistencies such that there was a failure to positively identify the perpetrators of the crime; 17

(d) On the credibility of the prosecution witnesses, the findings of the trial court in the case at bar are not controlling and
should not be given much weight because the judge who rendered the decision is not the same judge who heard the
case; 18 and

(e) Finally, even assuming arguendo, that the Appellants were among those who staged the ambush, they cannot be
convicted for Frustrated Murder in G.R. No. 68312 (Criminal Case No. 1894 in the court below) because as per the
testimony of prosecution witness Dr. Casimiro Mansilla, the victim, Felipe Noquera, would have lived even without medical
attendance considering that the wound was just a slight physical injury. 19

The People, in its Brief filed by the Solicitor General, disagrees with the Appellants and maintains that the prosecution
was able to prove their guilt beyond reasonable doubt. It stressed that at least four (4) eye-witnesses positively identified
them as those who ambushed the victims. 20 It further claims that as against the positive identification by the prosecution
witnesses, the Appellants' defense of alibi is weak and not plausible. 21

Anent the contention that the testimonies of the prosecution witnesses are full of inconsistencies, the People painstakingly
contradicted each and every inconsistency mentioned, to wit:

The appellants contend that the testimony of witness Paquito Alvarez is not to be believed because there is an
inconsistency when he admitted having pointed to all the accused during the preliminary investigation before the fiscal,
while in his testimony in court he claimed to have recognized only accused Beren Mandong and Purong Bilaan.

The contention is without merit. There is no showing in the testimony that when counsel mentioned the word "accused",
he was referring to all the accused, including those at-large, or that he was referring only to all the accused who had been
apprehended. Hence, the alleged inconsistency is wanting. As to the alleged testimony of the defense witness Barangay
Captain Malayon that when he interviewed Alvarez and the other passengers, no one told him as to who were the
ambushers, suffice it to say that the testimony of said witness cannot be used to impeach the testimony of eye-witness
Alvarez. Besides there is no showing that Barangay Captain Malayon ever asked Alvarez nor (sic) the passengers as to
the identity of the ambushers.

The appellants likewise contends (sic) that eye-witness Felipe Noquera is not credible because the said witness allegedly
declared that when he heard gun reports he immediately took cover by lying face down on the roof of the weapon (sic)
carrier, and that when cross-examined, the said witness forgot the shirt worn by the accused, their distance from one
another and their relative position from (sic) each other.

The contention lacks merit. It is not true that eye-witness Noquera immediately took cover face down upon hearing the
gun reports. What he testified during cross-examination is that he first looked sidewise from where the gun report came
before taking cover. Thus:

Q And when you dived on the roof of the vehicle on your belly, you did that instantaneously upon hearing the gunburst?

A Yes, sir. I looked sidewise from where the gun report came (p. 33, tsn, Feb. 2, 1982).

As regards his failure to remember the shirt worn by the accused, their distance from one another and their relative
position from (sic) each other, suffice it to say that the same is not uncommon, for under such a situation where they were
ambushed, the natural tendency of a witness is only to focus his vision at the face of the person firing at them in order to
see recognize (sic) malefactors. Hence, he could not have a clear vision of the shirts they were wearing, their distance
from one another and relative position from (sic) each other. Besides, the witness testified after the lapsed (sic) of about
four (4) years. Hence, he could not have possibly remembered all the minute details which to him are not of great
significance.

The appellant further contends that the testimony of eye-witness Ricardo Salvador that he recognized Beren Mandong as
one of the ambushers cannot also be given full credit because Salvador was seated at the middle of the weapon (sic)
carrier and that the said vehicle has a roof which could have prevented him from seeing the accused who were on top of a
hill.

The contention is without merit. In the first place, it is not true that the entire weapon (sic) carrier was covered by a roof.
Only the driver's cabin has a roof, while the portion at the rear thereof was uncovered. Secondly, the ambushers were
standing on the hill and were openly exposed. There is nothing, therefore, to obstruct the view of eye-witness Salvador
when he glanced at the ambushers who were on top of the hills firing at them. 22

The People further contends that the Appellants were correctly convicted of Frustrated Murder in Criminal Case No. 1894
(G.R. No. 63811-13, herein) because "all the elements of the crime of murder, including the intent to kill with the use of
deadly weapon, are present" and "it is inconsequential whether the wound inflicted is serious or less serious or slight." 23
Lastly, the People submits that the indemnity of P12,000.00 each, to be paid to the heirs of the deceased Estelita Imarga
and Elena Pamoso, should be increased to P30,000.00 each, in view of the ruling in People vs. Dioso. 24

We have meticulously examined and painstakingly scrutinized the records of this case and the challenged decision and
We are convinced that the Appellants have been positively identified as two (2) of those who staged the ambushcade
whose guilt has been established beyond reasonable doubt by the testimonies given by the prosecution witnesses,
particularly that of Paquito Alvarez (driver of the weapons carrier), Felipe Noquera (the injured victim) and Luis Esconde
and Ricardo Salvador (both passengers of the weapons carrier).

The inconsistencies in the testimonies of Alvarez and Noquera, which Appellants capitalized on , pertain to minor details
only and cannot destroy their credibility. Inconsistencies in the testimony of prosecution witnesses with respect to minor
details and collateral matters do not affect the substance of their declaration, their veracity or the weight of their
testimony. 25 In fact, these inconsistencies, if only in minor details, reinforce rather than weaken their credibility, for it is
usual that witnesses to a stirring event should see differently some details of a startling occurrence. 26Rather than
discredit the testimony of the witnesses, such discrepancies on minor details serve to add credence and veracity to their
categorical, straightforward and spontaneous testimony. 27 Besides, as earlier stated, the People took extra efforts to
explain the alleged inconsistencies and, in the process, demonstrate the weakness of Appellants' claim.

As to the defense of alibi, We agree with the trial court that it could not prevail over the positive identification of the
Appellants. Alibi is a weak defense and cannot prevail over the testimony of truthful witnesses because it is easy to
fabricate. 28 Furthermore, for alibi to prosper, it must be established by clear evidence that the accused was in another
place for such a period of time as to negate his presence at the scene of the crime when it was committed. 29 In the case
at bar, the trial court found that "it could not be improbable for the accused to have been at the scene of the ambush from
the place where they allegedly were on the date of December 14, 1978, considering the distance which is approachable
within few (sic) minutes or hours." 30 We find no reason to disagree with the trial court as the Appellants failed to show Us
any basis for overturning this findings.

The testimonies of Mayor Felipe Constantino of the Municipality of Malungon and Barangay Captain Venancio Malayon of
barangay Bilaan do not inspire belief. Firstly, the alleged surrender and grant of amnesty to the "ambushers" who, as
claimed by Mayor Constantino, were not the appellants, was not corroborated by "Col. Bumanglag", the person who
allegedly accepted the surrender and granted the amnesty. Secondly, Constantino's claim of an ambush is based on what
he allegedly heard during the meeting. There was no specific reference to the ambush in question. Thirdly, Col.
Bumanglag, if he indeed even existed, had no authority to grant amnesty. Under the Constitution then in force, more
particularly Section 13, Article VII of the 1973 Constitution, only the President, with the concurrence of the Batasang
Pambansa, had the power to grant amnesty. Fourthly, there is an irreconcilable conflict between the testimonies of the
Mayor and the barangay captain as to the date of the alleged surrender. The former claims that it took place in July
1980 31 while the latter alleges that it was in "1979". 32 Worse, while the Mayor asserts that those who admitted to have
staged the ambush were Olding Gola-e, So Dol, Toy Maliang and Dano Pandayong, 33 witness Malayon claims that the
suspects were Toy Golas, Olding Golas, Lagono Lagayong and So Golaing. 34 This witness also claims that one of the
victims of the ambush who died was Lolita Agupitan. 35 Per prosecution's evidence, only Elena Pamoso and Estelita
Imarga died as a consequence of the ambush. Finally, Appellants exerted no effort to present as witness any of the
ambushers who "surrendered." Their non-availability or hostility was not shown. The "surrender" and "amnesty" story then
is nothing but a crude fabrication.

On the factual findings of the trial court, the Appellants urge Us not to give weight to said findings as the judge who
rendered the decision did not hear the case himself. 36 As they correctly pointed out. "Appellate courts will generally not
disturb the findings of fact of the trial court, 37 except where the judge who rendered the decision is not the judge who
heard the case." 38 However, the foregoing rule and its exception do not apply in a case where the trial court's conclusion
are fully substantiated and supported by the evidence on record and warrants the affirmance of such findings. 39

As held in the case of People vs. Bocatcat: 40

Finally, the Court notes that the lower court's judgment was penned by a judge who did not hear the evidence. And so,
while the rule is settled that the findings of fact by the trial court are entitled to great weight on appeal, as they are in better
position to examine and observe the demeanor of witnesses, this rule does not, however, apply in the case at bar, yet, we
find no cogent reason to reverse His Honor's judgment as his conclusions are fully substantiated and supported by the
evidence on record.

In the case at bar, We find that the findings of fact of the trial court are amply supported by the evidence on record.
We agree, however, with Appellants that they cannot be convicted for the crime of Murder in Criminal Case No. 1894
because, as testified to by Dr. Casimiro Mansilla, the doctor who examined the victim, Felipe Noquera, the latter would
have lived even without medical attendance because the "wound was just a slight physical injury." 41Per the medical
certificate, 42 the following were the injuries inflicted on Noquera:

— Wound, gunshot with avulsion of outer layer of skin 4 centimeter (sic) long, one centimeter wide left interscapular area.

— Wound, gunshot with avulsion of outer layer of skin 6 centimeter (sic) long, one centimeter wide right, infrascapular
area.

which "require medical attendance for the period of seven (7) to nine (9) days, unless complications set in or manifestation
due to internal injuries which are not apparent at the time of the examination appear later."

A crime is frustrated when the offender performs all the acts of execution which would produce the felony as a
consequence but which, nevertheless, do not produce it by reason of causes independent of the will of the
perpetrator. 43 However, if the offender commences the commission of a felony directly by overt acts, and does not
perform all the acts of execution which should produce the felony by reason of some cause or accident other than his own
spontaneous desistance, the crime is only attempted. 44 It is quite obvious that, in respect to Noquera, the crime never
passed the "attempted" stage.

The trial court, in ruling that murder was committed in the case of Elena Pamaso and Estelita Imarga and frustrated
murder in the case of Felipe Noquera, considered the qualifying circumstances of evident premeditation and treachery.

We disagree with the trial court on this score.

For evident premeditation to be present, the following requisites must concur:

(1) the time when the offender determined to commit the crime;

(2) an act manifestly indicating that he has clung to his determination; and,

(3) sufficient lapse of time between determination and execution to allow him to reflect upon the consequences of his
act. 45

It must be proved as clearly as the crime itself and cannot be deduced from mere conclusions and inferences. 46The

evidence presented against the appellants miserably failed to prove the foregoing requisites.

Treachery is present when the offender commits any of the crimes against persons employing means, methods or forms
in the execution thereof which tend directly and specially to insure its execution without risk to himself arising from the
defense which the offended party might make. 47 While treachery was duly proven against appellants because the
ambush was so sudden and unexpected that the victims were unable to defend themselves and, obviously, the means of
execution were deliberately and consciously adopted, such circumstance is not, however, alleged in the three (3)
informations.

For treachery to qualify the crime of homicide to murder, it must be alleged in the information, otherwise it will only be
considered a generic aggravating circumstance, if proven. 48 Therefore, treachery is only a generic aggravating
circumstance in these cases. The informations allege that the aggravating circumstance of band attended the commission
of the crimes charged. There is a band whenever more than three (3) armed malefactors shall have acted together in the
commission of an offense. 49 The accusatory portions of the informations elaborate this circumstance by stating that the
five (5) named accused, two (2) of whom are the Appellants, and two (2) other John Does "armed with assorted high-
powered weapons such as Garand rifle, shotgun and surit and with evidence premeditation and with deliberate intent to
kill, did then and there willfully, unlawfully and feloniously ambush, attack, assault and shoot with assorted high powered
weapons" the weapons carrier of Edon Escobillo thereby causing the death and injuries described therein. Evidently, the
prosecution did not intend to make the aggravating circumstance of aid of armed men as a qualifying circumstance under
Article 248 of the Revised Penal Code. Otherwise, it would have expressly alleged it as such as in the case of the
qualifying circumstance of treachery and evident premeditation. Accordingly, band absorbed aid of armed men. 50
The aggravating circumstance of disregard of the respect due the offended party on account of sex alleged in Criminal
Cases Nos. 1893 and 1895 cannot be appreciated against the Appellants, there being no proof that they deliberately
intended to offend the sex of the victims or show manifest disrespect towards them. 51

Accordingly, the Appellants are guilty of homicide on two (2) counts and of attempted homicide, with the generic
aggravating circumstances of treachery and band.

The penalty for Homicide under Article 249 of the Revised Penal Code is reclusion temporal. In view of the generic
aggravating circumstances of treachery and band, the penalty shall be imposed in its maximum period. They are entitled
to the benefits of the Indeterminate Sentence Law 52 which authorizes the imposition of an indeterminate penalty the
maximum of which shall be that which, in view of the attending circumstances, could be properly imposed under the rules
of the Revised Penal Code and the minimum of which shall be within the range of the penalty next lower to that prescribed
by the Code for the offense. The penalty for attempted homicide (Criminal Case No. 1894) is, pursuant to Article 50 of the
Revised Penal Code, two (2) degrees lower than that provided for in Article 249, which is prision correccional. Appellants
are also entitled to the benefits of the Indeterminate Sentence Law.

In accordance with the policy of this Court, 53 the civil indemnity for each death should be increased from P12,000.00 to
P50,000.00.

WHEREFORE, in view of the foregoing, the appealed judgment is hereby modified. As modified, Appellants Angel Pral
and Beren Mandong are hereby found and declared guilty beyond reasonable doubt of the crime of Homicide on two (2)
counts for the death of Elena Pamoso in Criminal Case No. 1893 and for the death of Estelita Imarga in Criminal Case
No. 1895, and of the crime of Attempted Homicide in Criminal Case No. 1894. Taking into account the absence of any
mitigating circumstances and the presence of the aggravating circumstances of treachery and band, and applying the
Indeterminate Sentence Law, each of them is hereby sentenced to suffer as follows:

1) In Criminal Case No. 1893, an indeterminate penalty ranging from Ten (10) years and One (1) day of Prision Mayor as
minimum to Seventeen (17) years, Eight (8) months and One (1) day of Reclusion Temporal as maximum;

2) In Criminal Case No. 1895, an indeterminate penalty ranging from Ten (10) years and One (1) day of Prision Mayor as
minimum to Seventeen (17) years, Eight (8) months and One (1) day of Reclusion Temporal as maximum;

3) In Criminal Case No. 1894, an indeterminate penalty ranging from Four (4) months and One (1) day of Arresto
Mayor as minimum to Four (4) years, Two (2) months and One (1) day of Prision Correccional as maximum;

and to indemnify, jointly and severally, the heirs of the deceased Elena Pamoso in Criminal Case No. 1893 in the sum of
P50,000.00 and the heirs of the deceased Estrelita Imarga in Criminal Case No. 1895 in the sum of P50,000.00, without
prejudice to the seeking of reimbursement from their co-accused in the event the latter are arrested, tried and convicted.

The prosecutory arm of the Government is enjoined to take immediate positive steps to bring into the custody of the law
the other accused who shall forthwith be tried by the lower court.

The Appellants are further ordered to pay two-sevenths(2/7) of the costs.

IT IS SO ORDERED.

Gutierrez, Jr., Feliciano, Bidin and Romero, JJ., concur.

G.R. No. 117161 March 3, 1997

RAMON INGLES @ "Monching," petitioner,

vs.
THE HONORABLE COURT OF APPEALS and THE PEOPLE OF THE PHILIPPINES, respondents.

ROMERO, J.:

This is another case of a gamble lost in a plea of self-defense.

Petitioner was charged before the Regional Trial Court of Calauag, Quezon, Branch 63, with frustrated homicide for the
stabbing of a certain Celso Barreno. One says it was a surprise attack; the other insists it was-defense. The conflicting
versions of the incident follow.

At around 5 o'clock in the afternoon of February 13, 1987, while at the Lopez Sports Center cockpit located at Barangay
Bebito, Lopez, Quezon Province, Barreno was suddenly stabbed by somebody in the back. Upon turning around, he saw
petitioner who was about to stab him again. Barreno released the fighting cock he was carrying and tried to parry the
attack. With his back and right arm bleeding, he fled towards the ulutan, where fighting cocks are paired, but fell facedown
along the way. 1 Petitioner also left amid the commotion that ensued. In the meantime, Barreno was taken to the
Magsaysay Memorial Hospital by a certain Officer Mañas. 2 The attending physician, Dr. Romeo Tapales, treated him for
two stab wounds, one that went through the right arm and another at the back, as well as for abrasions on the right
shin. 3 The doctor opined that without timely medical assistance, profuse bleeding of the arm wound could have led to
severe blood loss and possibly death. 4

Petitioner admitted the stabbing but claimed he acted in self-defense. 5 According to him, it was Barreno who first tried to
stab him after an altercation over a parcel of coconut land which was registered in the name of his wife Eden (Barreno's
first cousin), but which Barreno wanted to harvest by himself. The latter allegedly challenged him to fight by cursing
"Putang ina mo, magnanakaw ka!" ("Son of a whore, you're a thief!"), but he answered that they should not fight inside the
cockpit. When a soltada (match) was about to begin, the people in the cockpit began to crowd the balcony. On their way
up Barreno walked ahead of him, occasionally looking back, then suddenly pulled a fan knife and lunged at him, but he
was able to evade the thrust. Being the bigger man, he was able to wrest possession of the knife and used it against his
supposed attacker, who was hit in the right arm in attempting to ward off the blow. He was so furious that when Barreno
began to retreat, he gave hase and succeeded in hitting his mark again, this time in the back. 6 He left amid the confusion
that ensued, threw the knife into a well, 7 and surrendered himself to a certain Lt. Garcia apparently because no policeman
was present in the cockpit. 8 Yet upon cross-examination, he admitted that he left the cockpit when he saw "the
authorities" fetching Barreno. 9 Lt. Garcia escorted him to the police detachment at the municipal building where he owned
up to the stabbing but refused to answer any other questions without his lawyer. 10

Petitioner's testimony was corroborated by a certain Lorenzo Escleto, one of the men in the cockpit who allegedly saw the
incident and was asked by petitioner to testify in his defense. 11

On December 5, 1990, Judge Enrico A. Lanzanas 12 rendered judgment finding petitioner guilty of mere attempted
homicide after concluding that the latter was not able to perform all the acts of execution which would have caused the
death of Barreno, thus:

WHEREFORE and considering the foregoing, the Court finds the accused Ramon Ingles, guilty beyond reasonable doubt
of the crime of Attempted Homicide defined and penalized under Art. 249 in relation to Art. 6 and Art. 51 of the Revised
Penal Code and hereby sentences him to suffer the penalty of Four (4) Months of arresto mayor to Four (4) Years, Two
(2) Months of prision correccional, reimburse the offended party in the amount of P278.00, the amount he spent for his
medication, indemnify the offended party in the amount of P5,000.00 as moral damages and pay the costs of the suit.

SO ORDERED.

On appeal, said judgment was affirmed in toto by the Court of Appeals. Petitioner now comes before this Court trumpeting
the same excuses he maintained before the trial and appellate courts. He will again be disappointed.
Petitioner does not, and never did, deny that he stabbed Barreno. He claims immunity from responsibility, however, by
alleging that he acted in self-defense and was, therefore, not criminally liable under Article 11, paragraph 1 of the Revised
Penal Code (the Code), viz.:

Art. 11. Justifying circumstances. — The following do not incur any criminal liability:

1. Anyone who acts in defense of his person or rights, provided that the following circumstances concur:

First. Unlawful aggression.

Second. Reasonable necessity of the means employed to prevent or repel it.

Third. Lack of sufficient provocation on the part of the person defending himself.

Having admitted his role in the stabbing, it became incumbent upon petitioner to prove the presence of all the elements
necessary to justify his act. 13 Was there unlawful aggression on the part of the victim? Were the means employed by
petitioner reasonably necessary to repel the attack? Was there lack of sufficient provocation on the part of petitioner prior
to the alleged attack?

If we were to believe petitioner's version of the incident, all the above elements were present. It was Barreno who
challenged him to a fight, then swore at him, and finally tried to stab him as they were going to the cockpit's balcony. His
act of dodging the initial thrust and grappling for possession of the knife was a fairly reasonable reaction to the surprise
attack. And he never provoked Barreno; in fact, he refused to fight the latter even when challenged and slandered in front
of other men.

Petitioner, however, did not stop there but went beyond what may be considered a fairly reasonable reaction. After getting
hold of the knife, he was still "very angry" so he stabbed Barreno. When the latter fled, he gave chase and stabbed him
again, this time at the back. As correctly found by the trial and appellate courts, the unlawful aggression, if any, ceased
the moment petitioner disarmed Barreno and grabbed the knife himself. When he stabbed his supposed attacker, not just
once but twice, he became the aggressor. The reasonableness of the means by which he sought to deflect harm from
himself also ceased. By no stretch of the imagination can he now be said to be acting merely in self-defense.

To compound matters, his subsequent actions belie his plea of innocence. Thus, the court a quo asked: Why did he leave
the cockpit? Why did he throw away the knife and withhold this information from everybody? Why did he surrender to an
army officer when there were, by his own account, policemen in the cockpit, some of whom even went Barreno's
assistance? Upon questioning, why did he refuse to cooperate with the investigators unless he had a lawyer present?

The answer is simply that petitioner was lying and Barreno was telling the truth.

Going by Barreno's account, petitioner was the aggressor from the start. He denied having any special interest in the land
of petitioner's wife which supposedly sparked the argument between them. He also disowned the knife and insisted that
petitioner had it on his person all along before stabbing him. 14 The physical evidence, composed of the medical report
and the actual wounds of the victim, confirms these claims. Even the evidence for the defense corroborates in part his
testimony.

This Court has, over the years, established badges of guilt or circumstances which serve as indicia of a man's guilt.
Several of these are present in the case at bar. First, petitioner admittedly fled at the first sight of policemen confirming
that "the guilty fleeth even when no man pursueth." Certainly, flight is hardly the natural reaction of an innocent man who
wishes to, and in fact did, surrender to another person in authority, in this case, Lt. Garcia. 15Second, while Barreno
suffered two possibly fatal stab wounds and abrasions on the leg, petitioner was unable to exhibit even the slightest
scratch on himself, totally negating his plea of self-defense. 16 Next, he discarded the knife and concealed such fact from
the investigators, which can only mean that he naturally did not want to produce the evidence that could convict
him. 17 Finally, his failure to inform the police upon his surrender that he acted in self-defense was fatal to his defense. 18

The Court notes, however, that petitioner was found guilty of the lesser crime of attempted homicide instead of frustrated
homicide, the crime for which he was charged. According to the court a quo and affirmed by the Court of Appeals,
petitioner was not able to perform all the acts of execution which would have caused the death of Barreno because the
latter was able to run away. With due respect to the trial and appellate courts, we have to disagree with this conclusion.
"A felony is . . . frustrated when the offender performs all the acts of execution which would produce the felony as a
consequence but which, nevertheless, do not produce it by reason of causes independent of the will of the perpetrator.
There is an attempt when the offender commences the commission of a felony directly by overt acts, and does not
perform all the acts of execution which should produce the felony by reason of some cause or accident other than his own
spontaneous desistance." 19 Undoubtedly, no further act was needed to complete the fact of stabbing, not once but twice.
Prosecution witness Dr. Tapales testified that without timely medical attention, one of the wounds could have led to
severe blood loss which could have killed Barreno. If the inevitable result, which is the death of the victim, did not
materialize, it was not because he was able to elude his attacker, but because he was treated in the hospital on time.

The Court also observes that the trial and appellate courts ignored the treachery that so glaringly attended the
commission of the felony. It is not disputed that Barreno was stabbed on the back by petitioner. The only variance lies in
the statement of the former that the attack was sudden, which we accepted at its face value, and in the latter's averment
that it was done in a fit of uncontrollable rage, which we found rather contrived. When a person is unexpectedly attacked
from behind, depriving him of any opportunity to defend himself, undeniably, there is alevosia. 20 Since treachery was not
however, alleged in the information, it did not qualify the felony to murder but may, nevertheless, be appreciated as a
generic aggravating circumstance for the purpose of imposing the proper penalty.

Petitioner should, therefore, have been found guilty as charged of the crime of frustrated homicide which carries with it the
penalty of prision mayor under Article 249 in relation to Article 50 and Article 6 of the Code. After taking into account the
presence of the aggravating circumstance of treachery, as well as the mitigating circumstance of voluntary surrender of
petitioner, and by virtue of Article 64 of the Code, the imposable penalty is prision mayor in its medium period.

WHEREFORE, the instant petition for review is DENIED. The appealed judgments of the trial and appellate courts in
Criminal case No. 1472-C (CA-G.R. CR No. 11758) entitled People of the Philippines v. Ramon Ingles alias "Monching,"
is hereby AFFIRMED WITH the MODIFICATION that the penalty of imprisonment shall be the indeterminate sentence of
four (4) years and two (2) months of prision correccional, as minimum, to eight (8) years and one (1) day of prision mayor,
as maximum.

SO ORDERED.

Regalado, Puno, Mendoza and Torres, Jr., JJ., concur.

BENJAMIN P. MARTINEZ, G.R. No. 168827
Petitioner,
Present:
YNARES-SANTIAGO, J.,
Chairperson,
- versus - AUSTRIA-MARTINEZ,
CALLEJO, SR.,
CHICO-NAZARIO, and
NACHURA, JJ.
COURT OF APPEALS and
PEOPLE OF THE Promulgated:
PHILIPPINES,
Respondents. April 13, 2007

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

DECISION

CALLEJO, SR., J.:

This is a Petition for Review on Certiorari of the Decision[1] and the Resolution[2] of the Court of Appeals (CA) in
CA-G.R. CR No. 25436, affirming with modification the trial courts judgment finding Benjamin P. Martinez guilty beyond
reasonable doubt of frustrated homicide.

The Antecedents

Dean Dongui-is was a teacher at the Tubao National High School, La Union.Petitioner Benjamin Martinez was the
husband of Deans co-teacher, Lilibeth Martinez. Petitioner eked out a living as a tricycle driver.
On October 28, 1998, Dean and his wife Freda filed a complaint for damages against the spouses Martinez in the
Municipal Circuit Trial Court (MCTC) of Tubao, La Union. They alleged that in March 1998, petitioner, a suitor of Elvisa
Basallo, had been peddling false reports that Dean and Elvisa had illicit relations; he even told Freda that Elvisa was
Deans mistress. This led to a quarrel between Dean and Freda, and the latter was hospitalized for her heart
ailment. Dean requested Lilibeth to stop her husband from spreading lies, and she replied that Elvisa had been her
husbands mistress. They prayed that they be awarded moral and exemplary damages and litigation fees in the total
amount of P100,000.00.[3] The case was docketed as Civil Case No. 226.

For her part, Elvisa also filed a complaint against the spouses Martinez in the MCTC of Tubao for damages
anchored on Article 26 of the New Civil Code. She alleged that on several occasions, petitioner went to
the Shaltene Pawnshop and Pharmacy where she was employed and accused her of having an illicit affair with Dean; on
one occasion, he held her hand and forcibly pulled her outside, which caused her to scratch his face and run after him
with a knife; he also told her husbands cousin, Willy Ordanza, that she had an illicit affair with Dean; Willy, in turn, told her
mother-in-law about it; petitioner relayed the same rumors to her co-worker, Melba Dacanay, and his wife spread to
people in the Municipality, including Ramil Basallo, her brother-in-law. Elvisa also prayed for damages in the total amount
of P100,000.00. The case was docketed as Civil Case No. 227.[4]

The spouses Martinez filed a motion to dismiss the complaint in Civil Case No. 226 which was heard in the morning
of February 3, 1999. The court denied the motion.

At about 1:40 p.m. that day, Dean went to the Tubao Credit Cooperative (TCC) office to pick up the dividend certificate of
his wife who was a member of the cooperative. He left the building and walked to his car which was parked in front.As he
did, he read the dividend certificate of his wife. Dean was about a step away from an L-300 van which was parked in front
of the building when petitioner, armed with a bolo, suddenly emerged from behind the vehicle and stabbed him on the left
breast. Dean instantly moved backward and saw his assailant. Dean fled to the bank office and was able to gain entry into
the bank. Petitioner ran after him and upon cornering him, tried to stab him again. Dean was able to parry the blow with
his right hand, and the bolo hit him on the right elbow. Dean fell to the floor and tried to stand up, but petitioner stabbed
him anew on his left breast.[5] Dean managed to run to the counter which was partitioned by a glass. Unable to get inside
the counter, petitioner shouted at Dean: Agparentomeng ka tatta ta talaga nga patayen ka tatta nga aldawen (You kneel
down because I will really kill you now this day).[6]

Meantime, SPO1 Henry Sulatre was at the Tubao Police Station, about 100 meters away. He was informed that a fight
was going on in the bank. He rushed to the place on board the police car. When he arrived at the scene, he
saw Barangay Captain Rodolfo Oller and his son Nicky Oller.[7] Nicky handed to him the bolo which petitioner had used to
stab Dean.[8] He and Rodolfo brought petitioner to the police station. On the way, they passed by the loading area of
tricycles, about 40 meters away from the police station. Petitioner shouted: Sinaksak kon pare, sangsangaili laeng isuna
saan isuna to agari ditoy Tubao (I stabbed him, he is just a visitor so he should not act like a king here in Tubao). SPO1
Sulatre placed Benjamin in jail.Benjamin kept on shouting: Napatay kon, napatay kon (I killed him, I killed him).[9]

In the meantime, PO3 Valenzuela brought Dean to the Doa Gregoria MemorialHospital in Agoo, La Union. The victim was
transferred to the Ilocos Regional Hospital (IRH) in San Fernando, La Union where Dean was examined and operated on
by Dr. Nathaniel Rimando, with the assistance of Dr. Darius Parias. [10] Dean sustained two stab wounds in the anterior
chest, left, and a lacerated wound in the right elbow, forearm. Had it not been for the blood clot that formed in the stab
wound on the left ventricle that prevented the heart from bleeding excessively, Dean would have died from profuse
bleeding.[11]

On February 7, 1999, Dean gave a sworn statement to SPO1 Sulatre.[12] However, he deferred swearing to the truth of his
statement before the Public Prosecution because SPO1 Sulatre was waiting for the permanent medical certificate to be
issued by the hospital. SPO1 Sulatre deferred the execution and submission of an arrest report also pending the issuance
of the medical certificate.

Instead of issuing a permanent medical certificate, the IRH issued on February 8, 1999 the following Temporary
Certificate:

TO WHOM IT MAY CONCERN:

According to hospital record, DEAN N. DONGUI-IS, 30 years old, male, married, a resident of Francia West,
Tubao, La Union, was examined/treated/confined in this hospital on/from February 3-20, 1999.

WITH THE FOLLOWING FINDINGS AND DIAGNOSIS:

Stab Wound (L) Chest with Hemothorax (L), (L) Ventricular Perforation;

OPERATIONS:
Exploratory Thoracotomy (L); Evacuation of Retained Blood Clots; Ventriculorrhaphy Decortication 2/11/99

and would need medical attendance for more than thirty (30) days barring complications. [13]

On March 10, 1999, SPO1 Sulatre filed a criminal complaint for frustrated murder against petitioner in the MCTC.[14] The
MCTC opted not to act on the crime pending the arrest report and SPO1 Sulatres submission of Deans sworn statement.

The IRH issued a medical certificate on February 28, 1999, stating that Deans wounds would need medical
attendance of more than 30 days.[15] Barangay Captain Oller and SPO1 Sulatre executed an affidavit on petitioners
arrest.[16] Dean had his affidavit sworn before the Public Prosecutor on March 30, 1999.

On September 13, 2000 the Provincial Prosecutor of La Union indicted Benjamin for frustrated murder before the
Regional Trial Court (RTC), Branch 31, of the same province. The accusatory portion of the Information reads:

That on or about the 3rd day of February 1999, in the Municipality of Tubao, Province of La Union,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill, and
with treachery and evident premeditation, being then armed with a small pointed bolo, did then and there willfully,
unlawfully and feloniously attack, assault and stab one DEAN DONGUI-IS y Manalo, hitting him on his left breast
and right elbow, and thereby inflicting on him injuries that would have produced the crime of Murder as a
consequence but which nevertheless, did not produce it by reason of causes independent of the will of the
accused, mainly the timely rendition of medical assistance of on the said offended party, which prevented his
death, to his damage and prejudice.

CONTRARY TO LAW.[17]

On October 13, 2000, the accused, assisted by counsel, was arraigned and entered a plea of not guilty.
 The Case for Petitioner

Petitioner declared that he merely defended himself against Deans assault. Dean was so jealous of him because his
mistress, Elvisa, had also been his mistress. Unknown to Dean, he had already terminated his relation with Elvisa
sometime in March 1997 when his wife Lilibeth discovered the illicit relationship. [18] Dean also suspected that he
(petitioner) had been sending letters to his (Deans) wife relative to the illicit relationship with Elvisa. Dean also suspected
that he was responsible for the raid conducted by the Criminal Investigation Service (CIS) of his house for possession of a
gun.[19] As a result, Dean filed a civil complaint against him for damages, docketed as Civil Case No. 266. Before and after
the filing of the civil case, Dean had hurled invectives at him in the presence of Joselito Madriaga and other tricycle
drivers.[20] Dean even attempted to sideswipe him with his car.[21]

Petitioner declared that the criminal charge against him was Deans concoction, and intended solely to harass him. He
narrated that he went to the TCC office at about 1:30 p.m. on February 3, 1999. His wife had earlier received a note from
the cooperative to get the interest on her deposit.[22] He parked his tricycle in front of the building on the left side of the
railing going to the entrance of the cooperative.[23] Deans car was parked on the right side of the railing.[24] On his way, he
met his 82-year-old uncle, Godofredo Sarmiento, who was also on his way to the cooperative to update his passbook
because he was intending to apply for a loan. [25]He told Godofredo that they could go to the TCC together. When they
were about to pass through the entrance door, Dean was about to exit from the cooperative. Dean thought that he was
blocking his way and shouted invectives at him and his uncle; Dean also spat on his breast and face; and threw a punch
which he was able to parry with his left elbow.[26] Dean kept attacking him, forcing him to move backward through the
railing and towards his tricycle. Dean punched him again but he managed to parry the blow with his bolo which he took
from his tricycle. He stabbed Dean on his right elbow.[27] He swung his bolo at Dean which forced the latter to run back
into the office. He entered the office and stood by the entrance door to see if Dean would get a weapon. Dean continued
hurling invectives at him but was later pacified by Patricio Alterado, an employee of the
cooperative.[28] When Barangay Captain Oller arrived, he surrendered, along with his bolo.[29] He never boasted on the
way to the police station that he had killed Dean.[30]

Godofredo partially corroborated the testimony of petitioner. He declared that Dean spat on the face of petitioner.[31] By
the time Dean and petitioner reached the place where the latters tricycle was parked, he had left; he was afraid of being
involved.[32] He did not report the incident to the police authorities.

Joselito Madriaga testified that he and petitioner were bosom buddies with a long history of friendship. Dean had
an axe to grind against petitioner because the two maintained a common mistress, Elvisa.[33]

The Trial Courts Decision

On April 30, 2001, the trial court rendered judgment[34] convicting petitioner of frustrated homicide. The fallo of the
decision reads

WHEREFORE, this Court, after a consideration of the evidence adduced in this case, finds accused
BENJAMIN MARTINEZ guilty of the crime of Frustrated Homicide as principal. Neither aggravating circumstance
nor mitigating circumstance has been appreciated. Applying the Indeterminate Sentence Law, accused Benjamin
Martinez is sentenced to suffer the penalty of imprisonment ranging from FOUR (4) YEARS OF PRISION
CORRECTIONAL MEDIUM as minimum to EIGHT (8) YEARS and ONE (1) DAY OF PRISION MAYOR MEDIUM
as maximum. He is also ordered to pay DEAN DONGUI-IS the amount of ONE HUNDRED FIFTY THOUSAND
(P150,000.00) PESOS, broken into the following:

(a) Ninety-Two Thousand (P92,000.00) Pesos for medical expenses;

(b) Twenty-Six Thousand (P26,000.00) Pesos, representing his salaries for two (2) months when he could not
attend to teach due to his injuries;

(c) Twenty-Two Thousand (P22,000.00) Pesos as moral damages; and

(d) Ten Thousand (P10,000.00) Pesos as complainants attorneys fees.

SO ORDERED.[35]
 The trial court gave credence and full probative weight to the testimony of Dean, Dr. Rimando, SPO1 Sulatre, and
the documentary evidence of the prosecution. The court rejected petitioners twin defenses of denial and self-defense.It
declared that his version lacked strong corroboration, and that his witnesses (a close relative and a friend) were biased.

Finding that the prosecution failed to prove the qualifying circumstances of treachery, the trial court convicted
petitioner of frustrated homicide. The court declared that the crime involved a love triangle,[36] and considered the
protagonists history of personal animosity. There was no evident premeditation because Dean had been forewarned of
the attack.[37]

On appeal before the CA, petitioner raised the following issues:

I. THE TRIAL COURT COMMITTED SERIOUS ERRORS WHEN IT WRONGFULLY GAVE CREDENCE TO
THE FABRICATED CLAIMS OF THE SOLE WITNESS FOR THE PROSECUTION.

II. THE TRIAL COURT COMMITTED SERIOUS ERROR WHEN IT WRONGFULLY GAVE CREDENCE TO THE
FALSE AND SPECIOUS TESTIMONY OF THE COMPLAINANT.

III. THE TRIAL COURT COMMITTED SERIOUS ERROR WHEN IT CONVICTED THE ACCUSED FOR
FRUSTRATED HOMICIDE FOR INJURIES NOT ATTESTED BY ANY COMPETENT MEDICAL CERTIFICATE.

IV. THE TRIAL COURT COMMITTED SERIOUS ERROR WHEN IT CONVICTED THE ACCUSED FOR
FRUSTRATED HOMICIDE WITHOUT ANY PROOF BEYOND REASONABLE DOUBT.

V. THE TRIAL COURT COMMITTED SERIOUS ERROR WHEN IT DISREGARDED THE CONCLUSIVE
EVIDENCE FOR THE DEFENSE WHICH COMPLETELY NEGATED ANY PROOF FOR THE
PROSECUTION AND WHICH DEFINITELY WARRANTED THE ACQUITTAL OF THE ACCUSED.[38]

Maintaining his innocence, petitioner claimed that he had merely acted in self-defense when Dean insulted him,
spat on his face and assaulted him with fist blows on a mere suspicion that he (petitioner) was blocking Deans way
through the exit door of the cooperative.

The Decision of the Court of Appeals

On February 21, 2005, the CA rendered judgment affirming the assailed decision of the RTC with
modification. The fallo reads

WHEREFORE, the appealed Decision dated April 30, 2001 of the trial court is affirmed, subject to the
afforested modification of the minimum period of the sentence. Loss of earnings in the amount of P26,000.00 and
attorneys fees in the amount of P10,000.00 are deleted, and the award of actual damages is increased
to P92,715.68.

SO ORDERED.[39]
The CA ruled that the case is more of a retaliation rather than a case of self-defense. It declared that Dean
sustained two fatal stab wounds in his left chest, a fact which belied petitioners defense and confirmed the prosecutions
theory that he purposely and vigorously attacked the victim. The CA ruled that when an unlawful aggression which has
begun no longer exists, the one making the defense has no more right to kill or even wound the aggressor. The appellate
court pointed out that in the case before it, the supposed unlawful aggression of Dean ceased from the moment he
retreated inside the cooperative building; there was no need for petitioner to follow Dean inside the building and stab him
with his bolo. Petitioner should have simply stood his ground and walked away.

In discounting the qualifying circumstances of treachery and evident premeditation, the CA simply adverted to the
stipulation of facts contained in the Pre-Trial Order dated December 20, 2000 issued by the RTC, stating [t]hat the
accused stabbed the private complainant when the latter assaulted and boxed him (accused).[40] Petitioners plea of
voluntary surrender was not appreciated in his favor. However, the appellate court modified the minimum sentence
imposed by the trial court to four (4) years and two (2) months of prision correctional, as minimum.

As to damages, the CA deleted the RTCs award of loss of earning capacity and attorney fees, holding that they
lack factual and legal basis. It, however, increased the award of actual damages from P92,000.00 to P92,715.68
reasoning that latter amount was duly receipted. The CA denied the appellants motion for reconsideration.[41]
Before this Court, petitioner assigns the following errors allegedly committed by the CA
I. THE ASSAILED DECISION AND RESOLUTION HAVE TO BE SET ASIDE, AS THEY AROSE FROM
MISAPPREHENSION OF FACTS THAT PROVE THAT THE PROCEEDINGS AND THE FINDINGS MADE IN
THE DECISION OF THE TRIAL COURT AS WELL AS IN THE ASSAILED DECISION ITSELF, WERE BASED
ON A FALSE CHARGE WHICH IS PATENTLY FABRICATED BY A POLICE INVESTIGATOR AND WHICH
COMPRISES MALICIOUS PROSECUTION.

II. THE ASSAILED DECISION AND RESOLUTION HAVE TO BE SET ASIDE, AS THEY ARE BASED ON THE
FABRICATED STATEMENT AS WELL AS ON THE SOLE, SELF-SERVING,
CONTRADICTORY AND UNCORROBORATED TESTIMONY OF THE COMPLAINANT,
WHICH ARE MANIFESTLY CONCOCTED AND CANNOT ESTABLISH THE GUILT OF THE ACCUSED
BEYOND REASONABLE DOUBT.

III. THE ASSAILED DECISION AND RESOLUTION HAVE TO BE SE[T] ASIDE, AS THERE IS TOTAL ABSENCE
OF EVIDENCE TO PROVE THE VACUOS CHARGE AS WELL AS THE SAID DECISION ANDRESOLUTION,
FOR WHICH REASON THE GUILT OF THE ACCUSED WAS NOT DULY PROVED BEYOND REASONABLE
DOUBT[.]

IV. THE ASSAILED DECISION AND RESOLUTION HAVE TO BE SET ASIDE, AS THE SAME WERE RENDERED
IN ALL GRAVE ABUSE OF DISCRETION AND IN TOTAL DISREGARD OF THE
COMPETENT AND UNREBUTTED TESTIMONY FOR THE DEFENSE, WHICH NEGATE ANY REASONABLE
DOUBT ON THE GUILT OF THE ACCUSED.

V. THE ASSAILED DECISION AND RESOLUTION HAVE TO BE SET ASIDE, AS THE INFERENCES MADE ON
THE UNDISPUTED FACTSARE CONTRARY TO LAW AND JURISPRUDENCE AND CANNOT JUSTIFY ANY
FINDING OF ANY PROOF BEYOND REASONABLE DOUBT.[42]

Petitioner insists that the criminal complaint filed by SPO1 Sulatre was a fabrication because the latter never conducted a
formal investigation of the stabbing incident or of any witness to the incident. The police officer filed the criminal complaint
against petitioner on the basis of a sworn statement by Dean which was taken only on March 10, 1999, long after the
criminal complaint was filed in the MCTC. Worse, when he testified on cross-examination, Dean admitted that he did not
see the questions prepared by SPO1 Sulatre at the hospital, nor his answers to the policemans
questions. The affidavit dated March 10, 1999 was not typewritten in the hospital, and he was not present when the
affidavit was typewritten in the police station.Thus, the testimony of the victim was self-serving and uncorroborated,
tailored solely to support the charge filed by SPO1 Sulatre.

In its comment on the petition, respondent, through the Office of the Solicitor General (OSG), avers that the issues raised
by petitioner are factual, hence, inappropriate in a petition for review on certiorari in this Court.

The OSG maintains that the Revised Rules of Criminal Procedure does not require that the affidavit of the offended party
or the witnesses to the crime charged be appended to the criminal complaint filed in court. Moreover, the issue of the
validity of the criminal complaint in the MCTC had became moot and academic after the Information was filed in the trial
court, and when petitioner was arraigned, assisted by counsel, and entered a plea of not guilty.

It insists that Deans testimony, by itself, is sufficient to warrant the conviction of petitioner for frustrated
homicide. Petitioners conviction may be anchored on Deans testimony since the trial court found it credible and entitled to
full probative weight.Petitioner failed to prove his plea of self-defense by clear and convincing evidence.

The Courts Decision

The petition is denied for lack of merit.

Section 3(a) and (b), Rule 112 of the Revised Rules of Criminal Procedure [43] provide:

Sec. 3. Procedure. The preliminary investigation shall be conducted in the following manner:

(a) The complaint shall state the address of the respondent and shall be accompanied by the affidavits of the
complainant and his witnesses, as well as other supporting documents to establish probable cause. They shall be
in such number of copies as there are respondents, plus two (2) copies for the official file.The affidavits shall be
subscribed and sworn to before any prosecutor or government official authorized to administer oath, or, in their
absence or unavailability, before a notary public, each of whom must certify that he personally examined the
affiants and that he is satisfied that they voluntarily executed and understood their affidavits.

(b) Within ten (10) days after the filing of the complaint, the investigating officer shall either dismiss it if he finds no
ground to continue with the investigation, or issue a subpoena to the respondent attaching to it a copy of the
complaint and its supporting affidavits and documents.

It bears stressing that the officer conducting the preliminary investigation has to determine whether to dismiss the
complaint outright based on the averments of the complaint and the appendages thereof if it finds no ground to continue
with the investigation. If he finds ground to continue with the investigation of the accused, a subpoena should be issued to
the accused, appending thereto a copy of the complaint and the supporting affidavits. Unless the affidavits of the
witnesses named in the complaint and supporting documents are appended to the complaint, the investigating officer may
not be able to determine whether to dismiss the complaint outright or to conduct an investigation and issue a subpoena to
the accused.[44]

We agree with petitioner that the criminal complaint filed by SPO1 Sulatre with the MCTC on March 10, 1999 was
defective. As gleaned from the RTC records, the criminal complaint was not accompanied by any medical certificate
showing the nature and number of wounds sustained by the victim, the affidavits of any of the witnesses listed at the
bottom of the criminal complaint (particularly the victim himself), and the arrest report of SPO1 Sulatre, Brgy. Capt.
Rodolfo Oller, and his son Nicky.

The MCTC had the option not to act one way or the other on the criminal complaint of SPO1 Sulatre because the latter
failed to comply with Section 3(a) and (b), Rule 112 of the Revised Rules of Criminal Procedure; or to order SPO1 Sulatre
to comply with the aforequoted rule; or to dismiss the complaint without prejudice to its refiling with the requisite
documents. However, the MCTC opted not to act on the complaint until after SPO1 Sulatre shall have submitted the
requisite affidavits/medical certificate/arrest report. When SPO1 Sulatre filed with the MCTC, on March 10, 1999, the
permanent medical certificate issued by the IRH, the affidavit of Dean and his and Brgy. Capt. Ollers affidavit of arrest of
petitioner, the MCTC forthwith issued a subpoena to petitioner appending thereto the said medical certificate, affidavit of
Dean and the affidavit of arrest of SPO1 Sulatre.[45] Hence, SPO1 Sulatre had complied with Section 3(a) and (b), Rule
112 of the Revised Rules of Criminal Procedure.

Moreover, petitioner submitted his counter-affidavit without any protest.Neither did he assail the validity of the
criminal complaint or the tardy submission by SPO1 Sulatre of the medical certificate, the affidavit of Dean and the
affidavit of arrest of SPO1 Sulatre. Aside from this, petitioner was arraigned in the RTC, assisted by counsel, and entered
a plea of not guilty.

On the second issue, the rulings of the trial court and the appellate court are correct. Whether or not petitioner acted in
self-defense whether complete or incomplete is a question of fact,[46] the well-entrenched rule is that findings of fact of the
trial court in the ascertainment of the credibility of witnesses and the probative weight of the evidence on record affirmed,
on appeal, by the CA are accorded high respect, if not conclusive effect, by the Court and in the absence of any justifiable
reason to deviate from the said findings.[47]

In this case, the trial court gave no credence and probative weight to the evidence of petitioner to prove that he acted in
self-defense, complete or incomplete. Petitioner failed to establish that the trial court and the appellate court
misconstrued, misappropriated or ignored facts and circumstances of substance which, if considered, would warrant a
modification or reversal of the decision of the CA that petitioner failed to establish clear and convincing evidence that he
acted in self-defense, complete or incomplete.

Like alibi, petitioners claim of self-defense is weak; it is also settled that self-defense is easy to fabricate and difficult to
disprove. Such a plea is both a confession and avoidance.[48] One who invokes self-defense, complete or incomplete,
thereby admits having killed the victim by inflicting injuries on him. The burden of evidence is shifted on the accused to
prove the confluence of the essential elements for the defense as provided in Article 11, paragraph 1 of the Revised Penal
Code:

x x x (1) unlawful aggression; (2) reasonable necessity of the means employed to prevent or repel it; and (3) lack
of sufficient provocation on the part of the person defending himself. x x x[49]

The accused must rely on the strength of his own evidence and not on the weakness of that of the prosecution because
even if the evidence of the prosecution is weak, the same can no longer be disbelieved. [50] The accused cannot escape
conviction if he fails to prove the essential elements of complete self-defense.

In Garcia v. People,[51] the Court defined unlawful aggression:

x x x Unlawful aggression presupposes an actual, sudden and unexpected or imminent danger on the life and
limb of a person a mere threatening or intimidating attitude is not sufficient. There must be actual physical force or
a threat to inflict physical injury. In case of a threat, it must be offensive and positively strong so as to display a
real, not imagined, intent to cause injury. Aggression, if not continuous, does not constitute, aggression
warranting self-defense.[52]

Aggression, if not continuous, does not constitute aggression warranting self-defense.[53] When unlawful aggression
ceases, the defender no longer has any justification to kill or wound the original aggressor. The assailant is no longer
acting in self-defense but in retaliation against the original aggressor.[54]

There can be no self-defense, complete or incomplete, unless the accused proves unlawful aggression on the
part of the victim.[55] Unlawful aggression is a sudden and unexpected attack or an imminent danger thereof, and not
merely a threatening or an intimidating attitude.[56]

Petitioner failed to discharge his burden.

First. Petitioner failed to surrender himself to the responding authorities who arrived at the situs criminis, as well
as the bolo he used in stabbing the victim. One who acted in self-defense is expected to surrender, not only himself, but
also the weapon he used to kill or inflict physical injuries on the victim. [57]

Second. The victim sustained three stab wounds on different parts of his body. Two were fatal stab wounds at his
left chest. The presence of a large number of wounds on the part of the victim, their nature and location disprove self-
defense and instead indicate a determined effort to kill the victim. [58]

Third. Petitioner testified that he was punched by the victim. However, there is not a scintilla of evidence to show
that petitioner suffered even a scratch as a result of the alleged fist blows.

Neither can the RTC nor the CA be faulted for giving credence to the testimony of SPO1 Salutre. No evidence
was adduced by the defense to show that he harbored any ill-motive against petitioner to charge him with such a
crime. Absent any proof of improper motive, the prosecution witness who is law enforcer is presumed to have regularly
performed his duty in arresting and charging petitioner.[59] His testimony is thus entitled to full faith and credit. Moreover,
the conviction of petitioner was not based solely on the testimony of the SPO1 Salutre. The unimpeached testimony of
Dean categorically established the crime; this was corroborated by the testimony of Dr. Nathaniel Rimando.

Petitioners argument that he should be acquitted because the criminal complaint against him was not supported
by the victims sworn statement or by an affidavit of any witness is totally untenable. This issue should have been raised
during the preliminary investigation. It is much too late in the day to complain about this issue after a judgment of
conviction has been rendered against him.

Contrary to petitioners stance, the testimonies of his corroborating witnesses are unimpressive. For one,
Godofredos testimony was limited only to the alleged fact that happened outside of the cooperative building. He himself
admitted that when the protagonists started fighting each other, for fear for his life, he hurriedly flagged and boarded a
tricycle which revved up to the highway; it was from there that he saw petitioner slumped on his tricycle. In other words,
he did not witness what transpired thereafter or how the fight ended.

Joselitos testimony did not fare any better. It was given neither credence nor weight by the trial court. And even if
it had been proved that the victim was rabid against petitioner, such evidence would only have established a probability
that he had indeed started an unlawful assault on petitioner. This probability cannot, however, overcome the victims
positive statement that petitioner waylaid and assaulted him without any provocation. The theory that Dean may have
started the fight since he had a score to settle against petitioner is flimsy, at best. Furthermore, Joselito admitted that he
was petitioners best friend; hence, his bias cannot be discounted.

The Crime Committed

by the Petitioner

Petitioner next argues that should he be convicted of any crime, it should be of less serious physical injuries only,
absence the element of intent to kill. He advances the argument that the single wound suffered by the victim was not life
threatening and that the latter was transferred to undergo operation in another hospital only because the medical staff
where he was first rushed bungled their job. He makes much of the fact that Dr. Darius R. Parias who issued the Medical
Certificate never testified for the prosecution.

Again, the Court is not swayed.

 If one inflicts physical injuries on another but the latter survives, the crime committed is either consummated
physical injuries, if the offender had no intention to kill the victim or frustrated or attempted homicide or frustrated murder
or attempted murder if the offender intends to kill the victim. Intent to kill may be proved by evidence of the following: (a)
motive; (b) the nature or number of weapons used in the commission of the crime; (c) the nature and number of wounds
inflicted on the victim; (d) the manner the crime was committed; and (e) words uttered by the offender at the time the
injuries are inflicted by him on the victim.[60]

Petitioner insists that he had no intent to kill Dean. However, the physical evidence belies petitioners pose.

To begin with, as between petitioner and the victim, the former had more hatred to harbor arising from the fact that the
victim filed a lawsuit against him and his wife. Petitioner thus had more motive to do harm than the victim. By his own
account, he and Dean had a history of personal animosity.

Secondly, petitioner was armed with a deadly 14-inch bolo.

Thirdly, if it were true that petitioner stabbed Dean merely to defend himself, it defies reason why he had to stab
the victim three times. Petitioners claim that Dean suffered only a single non-life threatening wound is misleading. Dr.
Rimando, who attended to and operated on Dean, testified that the victim sustained three (3) stab wounds, two (2) of
which penetrated his heart and lung, causing massive blood clotting necessitating operation; the other lacerated Deans
his right elbow. The presence of these wounds, their location and their seriousness would not only negate self-defense;
they likewise indicate a determined effort to kill.[61] Moreover, physical evidence is evidence of the highest order. It speaks
more eloquently than a hundred witnesses.[62]

Neither does the non-presentation of Dr. Darius R. Parias, the doctor who signed the medical certificate, would dent a bit
the evidence for the prosecution. This is so because Dr. Parias, who assisted Dr. Rimaldo during the operation of Dean,
would merely corroborate Dr. Rimaldos testimony. As such, his testimony is not indispensable.

Fourthly, from the manner the crime was committed, there can hardly be any doubt that intent to kill was present. It has
been clearly established that petitioner ambushed Dean and struck him with a bolo. Dean was defenseless and unarmed,
while petitioner was deadly armed.

Lastly, the words of the petitioner while he was assaulting Dean were most revealing:

Atty. Atitiw:
Q : When you were in the counter, what was accused Benjamin doing?
A : When I was inside the counter and hes outside and between us is a glass and there he shouting at me telling in
Ilocano that AGPARENTONG KA TATTA TA TALAGA NGA PATAYEN KA TATTA NGA ALDAWEN You kneel
down because I will really kill you now.[63]

xxxx

Atty. Atitiw:
Q : While passing through the loading area of the tricycle, do you remember anything that transpired there at the
loading area?
A : Yes, Sir.

Q : What is that, Mr. Witness?

A : While Benjamin Martinez, Barangay Captain Oller and I were walking proceeding to our Police Station and when
we were near the area, at the loading area if the tricycle, Benjamin Martinez shouted and I quote: SINAKSAK
KON PARE, SANGSANGAILI LAENG ISUNA SAAN NGA ISUNA TI AGARI DITOY TUBAO, that was the
utterance, Sir.[64]

xxxx

Q : After bringing him to the Police Station, what did you do next?
A : We put him in jail, Sir.

Q : And while in jail do you remember whether accused Benjamin Martinez did anything while in jail?
A : Yes, Sir.

Q : What is that, Mr. Witness?

A : He kept on shouting words, Sir.
Q : What are those words if you can remember?
A : He kept on shouting NAPATAY KON, NAPATAY KON, Sir.[65]

Anent the allegation of negligence on the part of the medical staff of DoaGregoria Memorial Hospital where Dean
was rushed, suffice it to say that this is a new theory being foisted by petitioner. It was never raised in the two courts
below and thus it will not be entertained here. At any rate, this allegation finds no support in the records of the case.

It cannot be denied that petitioner had the intention to kill Dean. Petitioner performed all the acts of execution but the
crime was not consummated because of the timely medical intervention applied on the victim.

An appeal in a criminal case opens the entire case for review on any question including one not raised by the
parties.[66] In this regard, we find ample evidence to establish treachery. The CAs advertence to the stipulation of facts
contained in the Pre-Trial Order dated December 20, 2000[67] is misplaced. This alleged stipulation was stricken off the
record on motion of the prosecution on the ground that no stipulation of such fact was made.[68]

There is treachery when the offender commits any of the crimes against the person, employing means, methods,
or forms in the execution thereof which tend directly and specially to insure its execution without risk to himself arising
from the defense which the offended party might take.[69]

In the present case, the prosecution had met the requisites for alevosia to be appreciated: (1) at the time of the
attack the victim was not in a position to defend himself; and (2) that the offender consciously adopted the particular
means, method, or form of the attack employed by him.[70] Dean lived to tell about the swiftness of the attempt against his
life:

Q : After getting the dividend certificate where did you proceed next?
A : I went out from the bank, sir. I was able to go to school.

Q : Where you able to go to the school?

A : No, Sir.

Q : Why were you not able to reach the school?

A : Because I was suddenly stabbed by Benjamin Martinez.

Q : Where did Benjamin Martinez stab you?

A : In front of the bank, Sir.

Q : And how did Benjamin Martinez stab you?

A : I was about to go to my car, Sir. I was reading the dividend certificate that I got from the bank but when I was about
one step away from the back of the L300 van that was parked in front of the bank, I was suddenly stabbed by him.

Q : Where was Benjamin Martinez at that time when he was stabbed you?
A : Probably he was hiding at the back of the L300 van, Sir.[71]

When Dean was attacked he was unarmed. He had just exited the cooperative building and had no inkling that he
would be waylaid as he made his way towards his car. Upon the other hand, petitioner was armed with a deadly 14-inch
bolo. The attacked on Dean was swift and unannounced; undeniably, petitioners attack was treacherous.

Petitioner is guilty of frustrated murder under Article 248 in relation to Article 6, first paragraph of the Revised
Penal Code which reads:

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

The essential elements of a frustrated felony are as follows:

1. The offender performs all the acts of execution;

2. All the acts performed would produce the felony as a consequence;
3. But the felony is not produced;
4. By reason of causes independent of the will of the perpetrator. [72]

A crime is frustrated when the offender has performed all the acts of execution which should result in the
consummation of the crime. The offender has passed the subjective phase in the commission of the crime. Subjectively,
the crime is complete. Nothing interrupted the offender while passing through the subjective phase. He did all that is
necessary to consummate the crime. However, the crime was not consummated by reason of the intervention of causes
independent of the will of the offender. In homicide cases, the offender is said to have performed all the acts of execution
if the wound inflicted on the victim is mortal and could cause the death of the victim barring medical intervention or
attendance.[73]

The penalty for frustrated murder is one degree lower than reclusion perpetua to death, which is reclusion
temporal.[74] The latter penalty has a range of 12 years and 1 day to 20 years. Applying the Indeterminate Sentence Law,
the maximum of the indeterminate penalty should be taken from reclusion temporal, the penalty for the crime, taking into
account any modifying circumstances in its commission. The minimum of the indeterminate penalty shall be taken from
the full range of prision mayor which is one degree lower than reclusion temporal. Since there is no modifying
circumstance in the commission of frustrated murder, the appellants should be meted an indeterminate penalty of from
nine (9) years and four (4) months of prision mayor in its medium period as minimum, to seventeen (17) years and four (4)
months of reclusion temporal in its medium period, as maximum.

Petitioner, likewise, insists that he voluntarily surrendered to Barangay Captain Rodolfo Oller. He faults the trial
and appellate courts for relying on the prosecutions Affidavit of Arrest, arguing that the same is inadmissible as hearsay,
the affiants not having testified to affirm their declarations.

For voluntary surrender to be appreciated, the following requisites should be present: (1) the offender has not
been actually arrested; (2) the offender surrendered himself to a person in authority or the latters agent; and (3) the
surrender was voluntary. The surrender must be spontaneous, made in such a manner that it shows the interest of the
accused to surrender unconditionally to the authorities, either because he acknowledged his guilt or he wishes to save
them the trouble and expenses that would necessarily be incurred in the search and capture.[75]

In the case at bar, SPO1 Salutre testified that petitioner did not voluntarily surrender but was forcibly
apprehended by Barangay Captain Oller, and thereafter turned over to him. Petitioner however insists that said testimony
is hearsay inasmuch as SPO1 Salutre was not the person who actually arrested him. We disagree. During SPO1 Salutres
testimony, petitioner failed to object to the questions propounded to SPO1 Salutre regarding his
apprehension. Consequently, he cannot now claim that SPO1 Salutres testimony on the arrest was hearsay. Petitioners
assertion of having voluntarily surrendered to Barangay Captain Oller was not corroborated by any competent and reliable
evidence. Considering the damning averments in the Affidavit of Arrest, petitioner should have at least
called BarangayCaptain Oller to the witness stand just to shed light on his alleged voluntary surrender.

We agree with the trial court that the qualifying circumstance of evident premeditation has not been adequately
shown. To properly appreciate the same, it is necessary to establish: (1) the time when the offender determined to commit
the crime; (2) an act manifestly indicating
that the culprit has clung to this determination; and (3) a sufficient lapse of time between the determination and the
execution to allow him to reflect upon the consequences of his act. [76] Since there is dearth of evidence on when petitioner
first conceived of killing Dean and that he was afforded sufficient time to reflect on the consequences of his contemplated
crime before its final execution, the circumstance of evident premeditation cannot be appreciated.

Civil Liabilities of
Petitioner

The trial court awarded Dean the amount of P92,000.00 representing his hospitalization and medical expenses which was
increased by the CA to P92,715.68.To be entitled to actual damages, it is necessary to prove the actual amount of loss
with a reasonable degree of certainty, premised upon competent proof and the best evidence obtainable to the injured
party.[77] For Deans hospitalization and medical expenses, the receipts submitted to support said claim amounted only
to P56,275.48; hence, Dean is entitled only to the said amount.

The Court awards exemplary damages in the amount of P25,000.00, inasmuch as the qualifying circumstance of
treachery attended the commission of the crime. In People v. Catubig,[78] we emphasized that insofar as the civil aspect of
the crime is concerned, exemplary damages in the amount of P25,000.00 is recoverable if there is present
an aggravating circumstance, whether qualifying or ordinary, in the commission of the crime.
 The CA is correct in deleting Deans claim for lost salary while recuperating, since this was not supported by
evidence. However, the trial courts award of P10,000.00 as attorneys fees should be reinstated, Dean having hired a
private prosecutor to prosecute his case.

Lastly, for the suffering Dean endured from petitioners felonious act, the award of P22,000.00 moral damages is
increased to P25,000.00, in keeping with the latest jurisprudence.[79]

IN LIGHT OF ALL THE FOREGOING, the assailed Decision is hereby AFFIRMED WITH
MODIFICATION. Petitioner is hereby found guilty beyond reasonable doubt of Frustrated Murder under Article 248 in
relation to Article 6, first paragraph of the Revised Penal Code and is hereby sentenced to suffer an indeterminate penalty
from nine (9) years and four (4) months of prision mayor in its medium period, as minimum, to seventeen (17) years and
four (4) months of reclusion temporal in its medium period, as maximum.

Petitioner is ordered to pay Dean Dongui-is the amount of P56,275.48 as actual damages; P25,000 as moral
damages; P25,000.00 as exemplary damages; and P10,000.00 as attorneys fees.

SO ORDERED.

ROMEO J. CALLEJO, SR.

Associate Justice

WE CONCUR:

CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson

MA. ALICIA AUSTRIA-MARTINEZ MINITA V. CHICO-NAZARIO

Associate Justice Associate Justice

ANTONIO EDUARDO B. NACHURA

Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer
of the opinion of the Courts Division.

CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson
CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairpersons Attestation, it is hereby
certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the
writer of the opinion of the Courts Division.

REYNATO S. PUNO
Chief Justice
G.R. No. L-13785 October 8, 1918

THE UNITED STATES, plaintiff-appellee,

vs.
TOMAS ADIAO, defendant-appellant.

Victoriano Yamzon for appellant.

Attorney-General Paredes for appellee.

MALCOLM, J.:

The defendant was charged in the Municipal Court of the city of Manila with the crime of theft. He was found guilty of the
lesser crime of frustrated theft. He appealed to the Court of First Instance of the city of Manila and again he was found
guilty of the crime of frustrated theft, and was sentenced to pay a fine of P100, with subsidiary imprisonment in case of
insolvency, and to pay the costs.

The sole error assigned on appeal is that the lower court erred in holding that the defendant was guilty of the crime of theft
as dis closed by the facts appearing of record. We have examined the evidence carefully and from our study are unable to
say that the proof is contrary to the findings of the lower court. Stated in one sentence, the defendant, Tomas Adiao, a
customs inspector, abstracted a leather belt valued at P0.80, from the baggage of a Japanese named T. Murakami, and
secreted the belt in his desk in the Custom House, where it was found by other customs employees.

Based on these facts, the Court is of the opinion that the crime can not properly be classified as frustrated, as this word is
defined in article 3 of the Penal Code, but that since the offender performed all of the acts of execution necessary for the
accomplishment crime of theft. The fact that the defendant was under observation during the entire transaction and that
he was unable to get the merchandise out of the Custom House, is not decisive; all the elements of the completed crime
of theft are present. The following decisions of the supreme court of Spain are in point:

The defendant was charged with the theft of some fruit from the land of another. As he was in the act of taking the fruit he
was seen by a policeman, yet it did not appear that he was at that moment caught by the policeman but sometime later.
The court said: ". . . The trial court did not err . . . in considering the crime as that of consummated theft instead of
frustrated theft inasmuch as nothing appears in the record showing that the policemen who saw the accused take the fruit
from the adjoining land arrested him in the act and thus prevented him from taking full possession of the thing stolen and
even its utilization by him for an interval of time. (Decision of the supreme court of Spain, October 14, 1898.)

Defendant picked the pocket of the offended party while the latter was hearing mass in a church. The latter on account of
the solemnity of the act, although noticing the theft, did not do anything to prevent it. Subsequently, however, while the
defendant was still inside the church, the offended party got back the money from the defendant. The court said that the
defendant had performed all the acts of execution and considered the theft as consummated. (Decision of the supreme
court of Spain, December 1, 1897.)

The defendant penetrated into a room of a certain house and by means of a key opened up a case, and from the case
took a small box, which was also opened with a key, from which in turn he took a purse containing 461 reales and
20 centimos, and then placed the money over the cover of the case; just at this moment he was caught by two guards
who were stationed in another room near-by. The court considered this as consummated robbery, and said: " . . . The
accused . . . having materially taken possession of the money from the moment he took it from the place where it had
been, and having taken it with his hands with intent to appropriate the same, he executed all the acts necessary to
constitute the crime which was thereby produced; only the act of making use of the thing having been frustrated, which,
however, does not go to make the elements of the consummated crime. (Decision of the supreme court of Spain, June 13,
1882.)

There exists the aggravating circumstance that advantage was taken by the offender of his public position. Wherefore, in
view of the provisions of articles 517 and 518, No. 5, of the Penal Code, and there being present one aggravating
circumstance compensated by no mitigating circumstances, the penalty must be imposed in the maximum
degree.1awph!l.net
Judgment is reversed and the defendant and appellant is sentenced to three months and one day of arresto mayor, with
the costs of all instances against him. The merchandise in question, attached to the record as Exhibit A, shall be returned
to the lawful owner, T. Murakami. So ordered.

Torres, Johnson, Street, Avanceña and Fisher, JJ., concur.

 [G.R. No. 143468-71. January 24, 2003]

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FREEDIE LIZADA @ FREDIE LIZADA, accused-appellant.

DECISION
CALLEJO, SR., J.:

This is an automatic review of the Decision[1] of the Regional Trial Court of Manila, Branch 54, finding accused-
appellant Freedie Lizada guilty beyond reasonable doubt of four (4) counts of qualified rape and meting on him the death
penalty for each count.

I. The Charges

Accused-appellant[2] was charged with four (4) counts of qualified rape under four separate Informations. The
accusatory portion of each of the four Informations reads:

That sometime in August 1998 in the City of Manila, Philippines, the said accused, with lewd designs, did then and there
willfully, unlawfully and feloniously, by means of force, violence and intimidation upon the person of one ANALIA
ORILLOSA y AGOO, by then and there embracing her, kissing and touching her private parts, thereafter removing her
skirt and panty, placing himself on top of her and trying to insert his penis into her vagina and succeeded in having carnal
knowledge with the said ANALIA ORILLOSA y AGOO, against her will and consent.

Contrary to law.

XXX

That on or about November 5, 1998, in the City of Manila, Philippines, the said accused, with lewd designs, did then and
there willfully, unlawfully and feloniously, by means of force, violence and intimidation upon the person of one ANALIA
ORILLOSA Y AGOO, by then and there embracing her, kissing and touching her private parts, thereafter removing her
skirt and panty, placing himself on top of her and trying to insert his penis into her vagina and succeeded in having carnal
knowledge with the said ANALIA ORILLOSA Y AGOO, against her will and consent.

Contrary to law.

XXX

That on or about October 22, 1998, in the City of Manila, Philippines, the said accused, with lewd designs, did then and
there willfully, unlawfully and feloniously, by means of force, violence and intimidation upon the person of one ANALIA
ORILLOSA Y AGOO, by then and there embracing her, kissing and touching her private parts, thereafter removing her
skirt and panty, placing himself on top of her and trying to insert his penis into her vagina and succeeded in having carnal
knowledge with the said ANALIA ORILLOSA Y AGOO, against her will and consent.

Contrary to law.

XXX

That on or about September 15, 1998, in the City of Manila, Philippines, the said accused, with lewd designs, did then and
there willfully, unlawfully and feloniously, by means of force, violence and intimidation upon the person of one ANALIA
ORILLOSA Y AGOO, by then and there embracing her, kissing and touching her private parts, thereafter removing her
skirt and panty, placing himself on top of her and trying to insert his penis into her vagina and succeeded in having carnal
knowledge with the said ANALIA ORILLOSA Y AGOO, against her will and consent.

Contrary to law.[3]
 The four (4) Informations were docketed as Criminal Cases Nos. 99-171390, 99-171391, 99-171392 and 99-171393,
respectively.
Accused-appellant was arraigned on April 15, 1999, assisted by counsel de parte and entered a plea of not guilty to
each of the charges.[4] A joint trial then ensued.

II. Evidence of the Prosecution[5]

Ricardo Orillosa and his wife, Rose Orillosa, natives of San Isidro, Bohol, had three (3) children, namely: Analia, who
was born on December 18, 1985;[6] Jepsy, who was 11 years old, and Rossel, who was nine years old. However, the
couple decided to part ways and live separately. Rose left Bohol and settled in Manila with her young children.She worked
as a waitress to make both ends meet.
In 1994, Rose met accused-appellant. They decided to live together as husband and wife at No. 1252 Jose Abad
Santos Street, Moriones, Tondo, Manila. In 1996, Rose resigned from her job as a waitress. She secured a loan, bought a
truck and used it for her business.
In the meantime, Rose secured a loan anew and used the proceeds thereof to put up a video shop in her house. She
sold Avon products from house to house to augment her income. Whenever she was out of their house, Rossel and
Analia took turns in tending the video shop and attending to customers.
Sometime in 1996, Analia was in her room when accused-appellant entered. He laid on top of her, removed her T-
shirt and underwear. He then inserted his finger in her vagina. He removed his finger and inserted his penis in her
vagina. Momentarily, she felt a sticky substance coming out from his penis. She also felt pain in her sex organ.Satiated,
accused-appellant dismounted but threatened to kill her if she divulged to anyone what he did to her. Accused-appellant
then returned to his room. The incident lasted less than one hour. Petrified by the threats on her life, Analia kept to herself
what happened to her.[7]
Sometime in August 1997, accused-appellant entered again the room of Analia, placed himself on top of her and
held her legs and arms. He then inserted his finger into her sex organ (fininger niya ako). Satiated, accused-appellant left
the room. During the period from 1996 to 1998, accused-appellant sexually abused private complainant two times a week.
On November 5, 1998, at about 3:00 p.m., Analia was in the sala of their house studying her assignments. Accused-
appellant was also in the sala. Rossel tended the video shop while his mother was away. Analia went into her room and
lay down in bed.She did not lock the door of the room because her brother might enter any time. She wanted to sleep but
found it difficult to do so. Accused-appellant went to his room next to the room of Analia. He, however, entered the room
of Analia. He was wearing a pair of short pants and was naked from waist up. Analia did not mind accused-appellant
entering her room because she knew that her brother, Rossel was around. However, accused-appellant sat on the side of
her bed, placed himself on top of her, held her hands and legs and fondled her breasts. She struggled to extricate
herself. Accused-appellant removed her panty and touched her sex organ. Accused-appellant inserted his finger into her
vagina, extricated it and then inserted his penis into her vagina. Accused-appellant ejaculated. Analia felt pain in her sex
organ. Momentarily, Rossel passed by the room of Analia after drinking water from the refrigerator, and peeped through
the door. He saw accused-appellant on top of Analia. Accused-appellant saw Rossel and dismounted.Accused-appellant
berated Rossel and ordered him to go to his room and sleep. Rossel did. Accused-appellant then left the room. Analia
likewise left the room, went out of the house and stayed outside for one hour. Rose arrived home at 6:00 p.m. However,
Analia did not divulge to her mother what accused-appellant had just done to her.
On November 9, 1998, at about 3:00 p.m., Rose left the house. Accused-appellant was in the sala of the house
watching television. Analia tended the video shop. However, accused-appellant told Analia to go to the sala. She refused,
as nobody would tend the video shop. This infuriated accused-appellant who threatened to slap and kick her.
Analia ignored the invectives and threats of accused-appellant and stayed in the video shop. When Rose returned, a
heated argument ensued between accused-appellant and Analia. Rose sided with her paramour and hit Analia. This
prompted Analia to shout. Ayoko na, ayoko na. Shortly thereafter, Rose and Analia left the house on board the motorcycle
driven by her mother in going to Don Bosco Street, Moriones, Tondo, Manila, to retrieve some tapes which had not yet
been returned. When Rose inquired from her daughter what she meant by her statement, ayoko na, ayoko na, she told
her mother that accused-appellant had been touching the sensitive parts of her body and that he had been on top of
her. Rose was shocked and incensed. The two proceeded to KagawadDanilo Santos to have accused-appellant placed
under arrest. On November 10, 1998, the two proceeded to the Western Police District where Analia gave her Affidavit-
Complaint to PO1 Carmelita Nocum in the presence of SPO2 Fe H. Avindante. She related to the police investigator that
accused-appellant had touched her breasts and arms in August, 1998, September 15, 1998, October 22, 1998 and on
November 5, 1998, at 3:00 p.m. Analia then submitted herself to genitalia examination by Dr. Armie Umil, a medico-legal
officer of the NBI. The medico-legal officer interviewed Analia, told him that she was raped in May, 1997 at 3:00 p.m. and
November 5, 1998 at 3:00 p.m.[8]
Dr. Umil prepared and signed a report on Living Case No. MO-98-1265 which contained her findings during her
examination on Analia, thus:

xxx

Fairly nourished, conscious, coherent, cooperative, ambulatory subject. Breasts, developed, hemispherical, firm. ----,
brown, 3.0 cms. in diameter. Nipples brown, protruding, 0.7 cms. in diameter.

No extragenital physical injuries noted.

GENITAL EXAMINATION:

Pubic hair, fully grown, moderate. Labia majora and minora, coaptated. Fourchette, tense. Vetibular mucosa,
pinkish. Hymen, tall, thick, intact. Hymenal orifice measures, 1.5 cms. in diameter. Vaginal walls, tight. Rugosities,
prominent.

CONCLUSIONS:

1). No evident sign of extragenital physical injuries noted on the body of the subject at the time of examination.

2). Hymen, intact and its orifice small (1.5 cms. in diameter) as to preclude complete penetration by an average-sized
adult Filipino male organ in full erection without producing any genital injury. [9]

Subsequently, Analia told her mother that mabuti na lang iyong panghihipo lang ang sinabi ko. When Rose inquired
from her daughter what she meant by her statement, Analia revealed to her mother that accused-appellant had sexually
abused her. On December 15, 1998, Analia executed a Dagdag na Salaysay ng Paghahabla and charged accused-
appellant with rape.[10]

III. The Defenses and Evidence of Accused-Appellant

Accused-appellant testified in his defense. He declared that after a month of courtship, he and Rose agreed in 1994
to live together as husband and wife. He was then a utility worker with the Navotas Branch of the Philippine Banking
Corporation.Rose, on the other hand, was a waitress at the Golden Bird beer house at Rizal Avenue, Manila.
Accused-appellant denied having raped Analia. He claimed that he loved the children of Rose as if they were his own
children. He took care of them, as in fact he cooked and prepared their food before they arrived home from school. At
times, he ironed their school uniforms and bathed them, except Analia who was already big. Analia was hard-headed
because she disobeyed him whenever he ordered her to do some errands. Because of Analias misbehavior, accused-
appellant and Rose oftentimes quarreled. Rose even demanded that accused-appellant leave their house. Another irritant
in his and Roses lives were the frequent visits of the relatives of her husband.
Sometime in 1997, accused-appellant was retrenched from his employment and received a separation pay
of P9,000.00 which he used to put up the VHS Rental and Karaoke from which he earned a monthly income
of P25,000.00. While living together, accused-appellant and Rose acquired two colored television sets, two VHS Hi-fi
recorders, one VHS player, one washing machine, one scooter motor, two VHS rewinders, one sala set, one compact disc
player and many other properties.
Accused-appellant ventured that Rose coached her children Analia and Rossel to testify against him and used them
to fabricate charges against him because Rose wanted to manage their business and take control of all the properties
they acquired during their coverture. Also, Rose was so exasperated because he had no job.

IV. The Verdict

 On May 29, 2000, the trial court rendered judgment against accused-appellant finding him guilty beyond reasonable
doubt of four (4) counts of rape, defined and penalized in the seventh paragraph, no. 1, Art. 335 of the Revised Penal
Code, and meted on him the death penalty for each count. The dispositive portion of the decision reads:

From all the evidence submitted by the prosecution, the Court concludes that the accused is guilty beyond reasonable
doubt of the crime charged against him in these four (4) cases, convicts him thereof, and sentences him to DEATH
PENALTY in each and every case as provided for in the seventh paragraph, no. 1, Article 335 of the Revised Penal Code.

SO ORDERED.[11]

V. Assigned Errors of the Trial Court

Accused-appellant assailed the decision of the court a quo and averred in his brief that:
THE TRIAL COURT GRAVELY ERRED IN NOT MAKING A FINDING OF FACT IN ITS DECISION AND SUCH
FAILURE IS A REVERSIBLE ERROR.[12]
XXX
THE TRIAL COURT GRAVELY ERRED IN CONVICTING ACCUSED-APPELLANT OF FOUR (4) COUNTS OF
RAPE DESPITE FAILURE OF THE PROSECUTION TO PROVE HIS GUILT BEYOND REASONABLE DOUBT.[13]

VI. Findings of the Court

On the first assignment of error, accused-appellant contends that the decision of the trial court is null and void as it
failed to comply with the requirements of Section 14, Article VIII of the 1987 Constitution and Section 1, Rule 36 of the
1997 Rules of Civil Procedure, as amended. He avers that the court a quo made no findings of facts in its decision. The
trial court merely summarized the testimonies of the witnesses of the prosecution and those of accused-appellant and his
witnesses, and forthwith set forth the decretal portion of said decision. The trial court even failed to state in said decision
the factual and legal basis for the imposition of the supreme penalty of death on him. The Solicitor General, on the other
hand, argues that there should be no mechanical reliance on the constitutional provision. Trial courts may well-nigh
synthesize and simplify their decisions considering that courts are harassed by crowded dockets and time
constraints.Even if the trial court did not elucidate the grounds as the legal basis for the penalties imposed, nevertheless
the decision is valid. In any event, the Solicitor General contends that despite the infirmity of the decision, there is no need
to remand the case to the trial court for compliance with the constitutional requirement as the Court may resolve the case
on its merits to avoid delay in the final disposition of the case and afford accused-appellant his right to a speedy trial.
The contention of accused-appellant is well-taken. Article VIII, paragraph 14 of the 1987 Constitution provides that no
decision shall be rendered by any court without expressing therein clearly and distinctly the facts and the law on which it is
based. This requirement is reiterated and implemented by Rule 120, Section 2 of the 1985 Rules on Criminal Procedure,
as amended, which reads:

SEC. 2. Form and contents of judgment.The judgment must be written in the official language, personally and directly
prepared by the judge and signed by him and shall contain clearly and distinctly a statement of the facts proved or
admitted by the accused and the law upon which the judgment is based.

If it is of conviction, the judgment shall state (a) the legal qualification of the offense constituted by the acts committed by
the accused, and the aggravating or mitigating circumstances attending the commission thereof, if there are any; (b) the
participation of the accused in the commission of the offense, whether as principal, accomplice, or accessory after the
fact; (c) the penalty imposed upon the accused; and (d) the civil liability or damages caused by the wrongful act to be
recovered from the accused by the offended party, if there is any, unless the enforcement of the civil liability by a separate
action has been reserved or waived.[14]

The purpose of the provision is to inform the parties and the person reading the decision on how it was reached by
the court after consideration of the evidence of the parties and the relevant facts, of the opinion it has formed on the
issues, and of the applicable laws. The parties must be assured from a reading of the decision of the trial court that they
were accorded their rights to be heard by an impartial and responsible judge. [15] More substantial reasons for the
requirement are:
For one thing, the losing party must be given an opportunity to analyze the decision so that, if permitted, he may elevate
what he may consider its errors for review by a higher tribunal. For another, the decision if well-presented and reasoned,
may convince the losing party of its merits and persuade it to accept the verdict in good grace instead of prolonging the
litigation with a useless appeal. A third reason is that decisions with a full exposition of the facts and the law on which they
are based, especially those coming from the Supreme Court, will constitute a valuable body of case law that can serve as
useful references and even as precedents in the resolution of future controversies.[16]

The trial court is mandated to set out in its decision the facts which had been proved and its conclusions culled
therefrom, as well as its resolution on the issues and the factual and legal basis for its resolution. [17] Trial courts should not
merely reproduce the respective testimonies of witnesses of both parties and come out with its decretal conclusion.
In this case, the trial court failed to comply with the requirements under the Constitution and the Rules on Criminal
Procedure. It merely summarized the testimonies of the witnesses of the prosecution and of accused-appellant on direct
and cross examinations and merely made referral to the documentary evidence of the parties then concluded that, on the
basis of the evidence of the prosecution, accused-appellant is guilty of four (4) counts of rape and sentenced him to
death, on each count.
The trial court even failed to specifically state the facts proven by the prosecution based on their evidence, the issues
raised by the parties and its resolution of the factual and legal issues, as well as the legal and factual bases for convicting
accused-appellant of each of the crimes charged. The trial court rendered judgment against accused-appellant with
the curt declaration in the decretal portion of its decision that it did so based on the evidence of the prosecution. The trial
court swallowed hook, line and sinker the evidence of the prosecution. It failed to explain in its decision why it believed
and gave probative weight to the evidence of the prosecution. Reading the decision of the trial court, one is apt to
conclude that the trial court ignored the evidence of accused-appellant. The trial court did not even bother specifying the
factual and legal bases for its imposition of the supreme penalty of death on accused-appellant for each count of rape.The
trial court merely cited seventh paragraph, no. 1, Article 335 of the Revised Penal Code. The decision of the trial court is a
good example of what a decision, envisaged in the Constitution and the Revised Rules of Criminal Procedure, should not
be.
The Court would normally remand the case to the trial court because of the infirmity of the decision of the trial court,
for compliance with the constitutional provision. However, to avert further delay in the disposition of the cases, the Court
decided to resolve the cases on their merits considering that all the records as well as the evidence adduced during the
trial had been elevated to the Court.[18] The parties filed their respective briefs articulating their respective stances on the
factual and legal issues.
In reviewing rape cases, this Court is guided by the following principles: (1) to accuse a man of rape is easy but to
disprove it is difficult though the accused may be innocent; (2) considering the nature of things, and only two persons are
usually involved in the crime of rape, the testimony of the complainant should be scrutinized with great caution; (3) the
evidence for the prosecution must stand or fall on its own merits and not be allowed to draw strength from the weakness
of the evidence of the defense.[19] By the very nature of the crime of rape, conviction or acquittal depends almost entirely
on the credibility of the complainants testimony because of the fact that usually only the participants can testify as to its
occurrence. However, if the accused raises a sufficient doubt as to any material element of the crime, and the prosecution
is unable to overcome it with its evidence, the prosecution has failed to discharge its burden of proving the guilt of the
accused beyond cavil of doubt and hence, the accused is entitled to an acquittal.
Anent the second assignment of error, we will resolve the same for convenience, as follows:

Re: CRIMINAL CASES NOS. 99-171392 and 99-171393 (covering the crime of rape committed on or about October 22,
1998 and on or about September 15, 1998)

Accused-appellant avers that the prosecution failed to adduce the requisite quantum of evidence that he raped the
private complainant precisely on September 15, 1998 and October 22, 1998. Moreover, the medical findings of Dr. Armie
Umil show that the hymen of the private complainant was intact and its orifice so small as to preclude complete
penetration by an average size adult Filipino male organ in full erection without producing any genital injury. The physical
evidence belies private complainants claim of having been deflowered by accused-appellant on four different
occasions. The Office of the Solicitor General, for its part, contends that the prosecution through the private complainant
proved the guilt of accused-appellant for the crime charged on both counts.
The contention of accused-appellant does not persuade the Court. The private complainant testified that since 1996,
when she was only eleven years old, until 1998, for two times a week, accused-appellant used to place himself on top of
her and despite her tenacious resistance, touched her arms, legs and sex organ and inserted his finger and penis into her
vagina. In the process, he ejaculated. Accused-appellant threatened to kill her if she divulged to anyone what he did to
her.[20] Although private complainant did not testify that she was raped on September 15, 1998 and October 22, 1998,
nevertheless accused-appellant may be convicted for two counts of rape, in light of the testimony of private complainant.
 It bears stressing that under the two Informations, the rape incidents are alleged to have been committed on or about
September 15, 1998 and on or about October 22, 1998. The words on or about envisage a period, months or even two or
four years before September 15, 1998 or October 22, 1998. The prosecution may prove that the crime charged was
committed on or about September 15, 1998 and on or about October 22, 1998.
In People vs. Gianan,[21] this Court affirmed the conviction of accused-appellant of five (5) counts of rape, four of
which were committed in December 1992 (two counts) and one each in March and April, 1993 and in November, 1995
and one count of acts of lasciviousness committed in December 1992, on a criminal complaint for multiple rape, viz:

That sometime in November 1995, and some occasions prior and/or subsequent thereto, in the Municipality of Dasmarias,
Province of Cavite, and within the jurisdiction of this Honorable Court, the above-named accused, with lewd designs,
taking advantage of his superior strength over the person of his own twelve (12) year old daughter, and by means of
force, violence and intimidation, did, then and there, willfully, unlawfully and feloniously, have repeated carnal knowledge
of Myra M. Gianan, against her will and consent, to her damage and prejudice. [22]

On the contention of accused-appellant in said case that his conviction for rape in December 1992 was so remote
from the date (November 1995) alleged in the Information, so that the latter could no longer be considered as being as
near to the actual date at which the offense was committed as provided under Section 11, Rule 110 of the Rules on
Criminal Procedure, as amended, this Court held:

Accused-appellant nevertheless argues that his conviction for rape in December 1992 is so remote from the date
(November 1995) alleged in the information, so that the latter could no longer be considered as being as near to the
actual date at which the offense was committed as provided under Rule 110, 11.

This contention is also untenable. In People v. Garcia, this Court upheld a conviction for ten counts of rape based on an
information which alleged that the accused committed multiple rape from November 1990 up to July 21, 1994, a time
difference of almost four years which is longer than that involved in the case at bar. In any case, as earlier stated,
accused-appellants failure to raise a timely objection based on this ground constitutes a waiver of his right to object.[23]

Moreover, when the private complainant testified on how accused-appellant defiled her two times a week from 1996
until 1998, accused-appellant raised nary a whimper of protest. Accused-appellant even rigorously cross-examined the
private complainant on her testimony on direct examination. The presentation by the prosecution, without objection on the
part of accused-appellant, of evidence of rape committed two times a week from 1996 until 1998 (which includes
September 15, 1998 and October 22, 1998) to prove the charges lodged against him constituted a waiver by accused-
appellant of his right to object to any perceived infirmity in, and in the amendment of, the aforesaid Informations to
conform to the evidence adduced by the prosecution.
The barefaced fact that private complainant remained a virgin up to 1998 does not preclude her having been
repeatedly sexually abused by accused-appellant. The private complainant being of tender age, it is possible that the
penetration of the male organ went only as deep as her labia. Whether or not the hymen of private complainant was still
intact has no substantial bearing on accused-appellants commission of the crime.[24]Even the slightest penetration of
the labia by the male organ or the mere entry of the penis into the aperture constitutes consummated rape. It is sufficient
that there be entrance of the male organ within the labia of the pudendum.[25] In People vs. Baculi, cited in People vs.
Gabayron,[26] we held that there could be a finding of rape even if despite repeated intercourse over a period of four years,
the complainant still retained an intact hymen without injury. In these cases, the private complainant testified that the
penis of accused-appellant gained entry into her vagina:
Fiscal Carisma
(continuing)
After your underwear was removed by the accused, what happened next?
Witness:
He laid himself on top of me, sir.
Q What did he do while he was on top of you?
A He inserted his finger (Finenger nya ako, ipinatong nya yong ano nya)
Q Can you please describe more specifically what is this and I quote Pinatong nya yong ano nya and where did he place
it?
A His organ, sir.
Q Where did he place his organ?
A In my organ, sir. (sa ari ko po.)
Q At this very juncture madam witness, what did you feel?
A I felt pain, sir, and I also felt that there was a sticky substance that was coming out, sir.[27] (Underlining supplied)
We agree with accused-appellant that he is guilty only of two counts of simple rape, instead of qualified rape. The
evidence on record shows that accused-appellant is the common-law husband of Rose, the mother of private
complainant. The private complainant, as of October 1998, was still 13 years old, and under Article 335 as amended by
Republic Act 7659, the minority of the private complainant, concurring with the fact that accused-appellant is the common-
law husband of the victims mother, is a special qualifying circumstance warranting the imposition of the death
penalty.[28]However, said circumstance was not alleged in the Informations as required by Section 8, Rule 110 of the
Revised Rules on Criminal Procedure which was given retroactive effect by this Court because it is favorable to the
accused.[29] Hence, even if the prosecution proved the special qualifying circumstance of minority of private complainant
and relationship, the accused-appellant being the common-law husband of her mother, accused-appellant is guilty only of
simple rape. Under the given law, the penalty for simple rape is reclusion perpetua. Conformably with current
jurisprudence, accused-appellant is liable to private complainant for civil indemnity in the amount of P50,000.00 and moral
damages in the amount of P50,000.00 for each count of rape, or a total of P200,000.00.

Re: Criminal Cases Nos. 99-171390 and 99-171391 (covering the crime committed on or about August 1998 and
November 5, 1998)

Accused-appellant avers that (a) the Information in Criminal Case No. 99-171390 is defective because the date of
the offense on or about August 1998 alleged therein is too indefinite, in violation of Rule 110, Section 11 of the Revised
Rules on Criminal Procedure which reads:

Sec. 11. Date of commission of the offense.It is not necessary to state in the complaint or information the precise date the
offense was committed except when it is a material ingredient of the offense. The offense may be alleged to have been
committed on a date as near as possible to the actual date of its commission. (11a)[30]

Accused-appellant further asserts that the prosecution failed to prove that he raped private complainant in August
1998. Hence, he argues, he should be acquitted of said charge. The Office of the Solicitor General, for its part, argued
that the date on or about August 1998 is sufficiently definite. After all, the date of the commission of the crime of rape is
not an essential element of the crime. The prosecution adduced conclusive proof that accused-appellant raped private
complainant on or about August 1998, as gleaned from her testimony during the trial.

The Court does not agree with accused-appellant. It bears stressing that the precise date of the commission of the crime
of rape is not an essential element of the crime. Failure to specify the exact date when the rape was committed does not
render the Information defective. The reason for this is that the gravamen of the crime of rape is carnal knowledge of the
private complainant under any of the circumstances enumerated under Article 335 of the Revised Penal Code, as
amended.Significantly, accused-appellant did not even bother to file a motion for a bill of particulars under Rule 116,
Section 9 of the Revised Rules on Criminal Procedure before he was arraigned. Indeed, accused-appellant was duly
arraigned under the Information and entered a plea of not guilty to the charge without any plaint on the sufficiency of the
Information. Accused-appellant even adduced his evidence after the prosecution had rested its case. It was only on
appeal to this Court that accused-appellant questioned for the first time the sufficiency of the Information filed against
him.It is now too late in the day for him to do so. Moreover, in People vs. Salalima,[31] this Court held that:

Failure to specify the exact dates or time when the rapes occurred does not ipso facto make the information defective on
its face. The reason is obvious. The precise date or time when the victim was raped is not an element of the offense. The
gravamen of the crime is the fact of carnal knowledge under any of the circumstances enumerated under Article 335 of
the Revised Penal Code. As long as it is alleged that the offense was committed at any time as near to the actual date
when the offense was committed an information is sufficient. In previous cases, we ruled that allegations that rapes were
committed before and until October 15, 1994, sometime in the year 1991 and the days thereafter, sometime in November
1995 and some occasions prior and/or subsequent thereto and on or about and sometime in the year 1988 constitute
sufficient compliance with Section 11, Rule 110 of the Revised Rules on Criminal Procedure.

In this case, although the indictments did not state with particularity the dates when the sexual assaults took place, we
believe that the allegations therein that the acts were committed sometime during the month of March 1996 or thereabout,
sometime during the month of April 1996 or thereabout, sometime during the month of May 1996 or
thereabout substantially apprised appellant of the crimes he was charged with since all the elements of rape were stated
 in the informations.As such, appellant cannot complain that he was deprived of the right to be informed of the nature of
the cases filed against him. Accordingly, appellants assertion that he was deprived of the opportunity to prepare for his
defense has no leg to stand on.

The prosecution proved through the testimony of private complainant that accused-appellant raped her two times a
week in 1998. As in Criminal Cases Nos. 99-171392 and 99-171393, accused-appellant is guilty only of simple rape.
As to the crime of rape subject of Criminal Case No. 99-171391, accused-appellant avers that he is not criminally
liable of rape. We agree with accused-appellant. The collective testimony of private complainant and her younger brother
Rossel was that on November 5, 1998, accused-appellant who was wearing a pair of short pants but naked from waist up,
entered the bedroom of private complainant, went on top of her, held her hands, removed her panty, mashed her breasts
and touched her sex organ. However, accused-appellant saw Rossel peeping through the door and dismounted. He
berated Rossel for peeping and ordered him to go back to his room and to sleep. Accused-appellant then left the room of
the private complainant. The testimony of private complainant on direct examination reads:
Fiscal Carisma:
Q In between 1996 and August 1997?
A Yes, sir, sometimes two (2) times a week.
Q In November of 1998, do you recall of any unusual experience that happened to you again?
A Yes, sir.
Q What was this unusual experience of yours?
A He laid himself on top of me, sir.
Q You said he whom are you referring to?
A Freedie Lizada Jakosalem, sir.
Q The same person you pointed to earlier?
A Yes, sir.
Q You said he placed himself on top of you in November, 1998, what did he do while he was on top of you?
A Hes smashing my breast and he was also touching my arms and my legs, sir.
Q What else if any madam witness?
A He was also touching my sex organ, sir.
Q What else, if any?
Atty. Estorco:
May we take note of the same objection your honor, the prosecution - - -
Court:
Same ruling. Let the complainant continue considering that she is crying and still young.
Witness:
None else, sir.
Fiscal Carisma:
With what part of his body did he touch your sex organ?
Atty. Estorco:
Your Honor, that is - - -
Court:
May answer.
Fiscal Carisma:
I will re-propound the question, your honor.
You said that he touched your sex organ, will you tell the court with what part of his body, did he touch your sex organ?
Witness:
With his hands, sir.
Q What about after November 1998 - - -was this the last incident, this unusual thing that you experienced from the hands
of the accused was this that last time, the one you narrated in November 1998?
A Yes, sir.[32]
On cross-examination, the private complainant testified, thus:
Atty. Balaba:
Q Who was that somebody who entered the room?
A My stepfather Freedie Lizada, sir.
Q He was fully dressed at that time, during the time, is that correct?
A Yes, sir, he was dressed then, sir.
Q And he had his pants on, is that correct?
A He was wearing a short pants, sir.
Q Was it a T-shirt that he had, at that time or a polo shirt?
A He was not wearing any shirt then, sir, he was naked.
Q When you realized that somebody was entering the room were you not afraid?
A No, sir, I was not afraid.
Q What happened when you realized that somebody entered the room, and the one who entered was your stepfather,
Freedie Lizada?
A I did not mind him entering the room because I know that my brother was around but suddenly I felt that somebody was
holding me.
Q He was holding you, where were you when he held you?
A I was in the bed, sir, lying down.
Q You were lying down?
A Yes, sir.
Q What part of the body did the accused Freedie Lizada touched you?
A My two arms, my legs and my breast, sir.
Q Do you mean to tell us that he was holding your two arms and at the same time your legs, is that what you are trying to
tell us?
A He held me first in my arms and then my legs, sir.
Q He held you first by your arms, is that what you are trying to tell us?
Fiscal Carisma:
Already answered your honor, he held the arms and then the legs.
Court:
Already answered.
Atty. Balaba:
Q Your honor, I am just trying to - -
Court:
Proceed.
Atty. Balaba:
Q He held your arms with his two hands?
A Only with one hand, sir.
Q Which hand were you touched?
A I do not know which hand, sir.
Q Which arm of yours was held by Freedie Lizada?
A I could not recall, sir.
Q Which side of your body was Freedie Lizada at that time?
A I cannot recall, sir.
Q What was the position of Freedie Lizada when he held your arms?
A He was sitting on our bed, sir.
Q Which side of your bed was Freedie Lizada sitting on?
A I do not know, sir. I cannot recall.
Atty. Balaba:
Can we take a recess your honor?
Court:
How long will it take you to finish your cross?
Atty. Balaba:
We will confront the witness with so many things your honor.
Court:
Yes, thats why I am asking you how long will it take you to finish your cross?
Atty. Balaba:
About another hour, sir.
Court:
So we will be finished by 11:15, proceed.
Atty. Balaba:
You cannot also remember which leg was held by Freedie Lizada?
A I cannot recall, sir.
Q When this happened, did you not shout for help?
A I did not ask for help, I was motioning to resist him, so that he would go out, sir. I was struggling to free myself from him,
sir.
Q And you were not able to extricate yourself from him?
A I was not able to extricate myself, sir.
Q You were struggling with one arm of Lizada holding your arm, and the other hand was holding your leg, is that what you
are trying to tell us?
A No, sir, its not like that.
Q Could you tell us, what happened, you did not shout for help and you were trying to extricate yourself, what happened?
A He suddenly went out of the room, sir.
Q Now, he went - - -
Court:
You did not shout during that time?
A No, your honor.[33]
Rossel, the nine-year old brother of the private complainant corroborated in part his sisters testimony. He testified on
direct examination, thus:
Fiscal Carisma: (continuing)
Q Now, on November 2, 1998 do you recall where you were at about 3:00 oclock?
A I was outside our house, sir.
Q Where was your house again, Mr. witness, at that time? Where was your house at that date, time and place? At that
date and time?
A 1252 Jose Abad Santos, Tondo, Manila, sir.
Court:
Q The same address?
A Yes, sir.
Fiscal Carisma:
Q On that date, time and place, do your recall where your sister Anna Lea Orillosa was?
A Yes, sir.
Q Where was she?
A She was sleeping, sir.
Q Now, on that date, time and place you said you were outside your house, did you stay the whole afternoon outside your
house?
A No, sir.
Q Where did you go next?
A Inside, sir.
Q For what purpose did you get inside your house?
A Because I was thirsty, sir.
Q So you went to the fridge to get some water?
A Yes, sir.
Q And what happened as you went inside your house to get some water?
A I saw my stepfather removing the panty of my sister and he touched her and then he laid on top of her, sir.
Q Do you see your stepfather inside the courtroom now?
A Yes, sir.
Q Will you point to him?
A He is the one, sir.
Court Interpreter:
Witness pointing to a male person who when asked answers to the name Freedie Lizada.
Fiscal Carisma:
Q This thing that your father was that your stepfather did to your elder sister, did you see this before or after you went to
the fridge to get some water?
A I already got water then, sir.
Q What did you do as you saw this thing being done by your stepfather to your elder sister?
A I was just looking at them when he saw me, sir.
Q Who, you saw who? You are referring to the accused Freedie Lizada?
A Yes, sir.
Q So, what did you do as you were seen by your stepfather?
A He scolded me, he shouted at me, he told me something and after that he went to the other room and slept, sir. [34]
Rossel testified on cross-examination, thus:
Q So you got thirsty, is that correct, and went inside the house?
A Yes, sir.
Q And you took a glass of water from the refrigerator?
A Yes, sir.
Q And it was at this time that you saw the accused Freedie Lizada touching your sister?
A Yes, sir.
Q Where was this refrigerator located?
A In front of the room where my sister sleeps, sir.
Q So the door of your sisters room was open?
A Yes, sir.
Q And --- okay, you said your sister was sleeping. What was the position of your sister when you said the accused
removed her panty?
A She was lying straight, but she was resisting, sir.
Q Were you noticed by your sister at that time?
A No, sir.
Q And your sister did not call for help at that time?
A No, sir.
Q And all this time you saw the accused doing this, from the refrigerator where you were taking a glass of water?
A Yes, sir.
Q Did you not say something to the accused?
A No, sir, I was just looking.
Q So your sister was lying down when the accused removed her panty, is that what you are trying to tell us?
A Yes, sir.
Q And where was the - - - and the accused saw you when he was removing the panty of your sister?
A Not yet, sir, but after a while he looked at the refrigerator because he might be thirsty.
Q So---you said the accused was touching your sister. What part of her body was touched by the accused?
A Here, sir.
Court Interpreter:
Witness pointing at the lower portion of the body.
Atty. Balaba:
Q You saw with what hand was the accused touching your sister?
A Yes, sir.
Q What hand was he touching your sister?
A This hand, sir.
Court Interpreter:
Witness raising his right hand.
Atty. Balaba:
Q And which part of your sisters body was the accused touching with his right hand? Your sisters body was the accused
touching with his right hand?
A Her right leg, sir.
Q How about his left hand, what was the accused doing with his left hand?
A Removing her panty, sir.
Q Removing her?
A Panty, sir.
Q Which hand of your sister was being removed with the left hand of the accused?
Court:
Which?
Atty. Balaba:
Which hand, which hand?
Fiscal Carisma:
The question is vague, your honor.
Atty. Balaba:
Because he said that removing the hand ---
Fiscal Carisma:
He said removing the panty.
Atty. Balaba:
Is that panty? Im sorry.
Q So, the accused was touching with his right hand the left thigh of your sister ---
Fiscal Carisma:
The right thigh.
Atty. Balaba:
Q Rather the right thigh of your sister and with his left hand removing the panty, is that what you are telling to tell us?
A Yes, sir.
Q And your sister all the time was trying to ---was struggling to get free, is that not correct?
A Yes, sir, she was resisting. (witness demonstrating)
Q She was struggling --- was the accused able to remove the panty?
A Yes, sir.
Q And all the time you were there looking with the glass of water in your hand?
A Yes, sir.[35]
 In light of the evidence of the prosecution, there was no introduction of the penis of accused-appellant into the
aperture or within the pudendum of the vagina of private complainant. Hence, accused-appellant is not criminally liable for
consummated rape.[36]
The issue that now comes to fore is whether or not accused-appellant is guilty of consummated acts of
lasciviousness defined in Article 336 of the Revised Penal Code or attempted rape under Article 335 of the said Code, as
amended in relation to the last paragraph of Article 6 of the Revised Penal Code. In light of the evidence on record, we
believe that accused-appellant is guilty of attempted rape and not of acts of lasciviousness.
Article 336 of the Revised Penal Code reads:

Art. 336. Acts of Lasciviousness.Any person who shall commit any act of lasciviousness upon other persons of either sex,
under any of the circumstances mentioned in the preceding article, shall be punished by prision correccional.[37]

For an accused to be convicted of acts of lasciviousness, the prosecution is burdened to prove the confluence of the
following essential elements:
1. That the offender commits any act of lasciviousness or lewdness.
2. That it is done under any of the following circumstances:

a. By using force or intimidation; or

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

c. When the offended party is under 12 years of age. [38]

Lewd is defined as obscene, lustful, indecent, lecherous. It signifies that form of immorality which has relation to
moral impurity; or that which is carried on a wanton manner.[39]
The last paragraph of Article 6 of the Revised Penal Code reads:

There is an attempt when the offender commences the commission of a felony directly by overt acts, and does not
perform all the acts of execution which should produce the felony by reason of some cause or accident other than his own
spontaneous desistance.

The essential elements of an attempted felony are as follows:

1. The offender commences the commission of the felony directly by overt acts;

2. He does not perform all the acts of execution which should produce the felony;

3. The offenders act be not stopped by his own spontaneous desistance;

4. The non-performance of all acts of execution was due to cause or accident other than his spontaneous desistance.[40]

The first requisite of an attempted felony consists of two elements, namely:

(1) That there be external acts;

(2) Such external acts have direct connection with the crime intended to be committed.[41]

An overt or external act is defined as some physical activity or deed, indicating the intention to commit a particular
crime, more than a mere planning or preparation, which if carried out to its complete termination following its natural
course, without being frustrated by external obstacles nor by the spontaneous desistance of the perpetrator, will logically
and necessarily ripen into a concrete offense.[42] The raison detre for the law requiring a direct overt act is that, in a
majority of cases, the conduct of the accused consisting merely of acts of preparation has never ceased to be equivocal;
and this is necessarily so, irrespective of his declared intent. It is that quality of being equivocal that must be lacking
before the act becomes one which may be said to be a commencement of the commission of the crime, or an overt act or
before any fragment of the crime itself has been committed, and this is so for the reason that so long as the equivocal
quality remains, no one can say with certainty what the intent of the accused is. [43] It is necessary that the overt act should
have been the ultimate step towards the consummation of the design. It is sufficient if it was the first or some subsequent
step in a direct movement towards the commission of the offense after the preparations are made.[44] The act done need
not constitute the last proximate one for completion. It is necessary, however, that the attempt must have a causal relation
to the intended crime.[45] In the words of Viada, the overt acts must have an immediate and necessary relation to the
offense.[46]
Acts constitutive of an attempt to commit a felony should be distinguished from preparatory acts which consist of
devising means or measures necessary for accomplishment of a desired object or end.[47] One perpetrating preparatory
acts is not guilty of an attempt to commit a felony. However, if the preparatory acts constitute a consummated felony
under the law, the malefactor is guilty of such consummated offense. [48] The Supreme Court of Spain, in its decision of
March 21, 1892, declared that for overt acts to constitute an attempted offense, it is necessary that their objective be
known and established or such that acts be of such nature that they themselves should obviously disclose the criminal
objective necessarily intended, said objective and finality to serve as ground for designation of the offense. [49]
There is persuasive authority that in offenses not consummated as the material damage is wanting, the nature of the
action intended (accion fin) cannot exactly be ascertained but the same must be inferred from the nature of the acts
executed (accion medio).[50] Hence, it is necessary that the acts of the accused must be such that, by their nature, by the
facts to which they are related, by circumstances of the persons performing the same, and by the things connected
therewith, that they are aimed at the consummation of the offense. This Court emphasized in People vs.
Lamahang[51] that:

The relation existing between the facts submitted for appreciation and the offense which said facts are supposed to
produce must be direct; the intention must be ascertained from the facts and therefore it is necessary, in order to avoid
regrettable instances of injustice, that the mind be able to cause a particular injury.[52]

If the malefactor does not perform all the acts of execution by reason of his spontaneous desistance, he is not guilty
of an attempted felony.[53] The law does not punish him for his attempt to commit a felony.[54] The rationale of the law, as
explained by Viada:

La Ley, en efecto, no hiere sino a pesar suyo; prefiere impedir el crimen que castigarlo. Si el autor de la tentativa,
despues de haber comenzado a ejecutar el delito por actos exteriores, se detiene, por un sentimiento libre y espontaneo,
en el borde del abismo, salvo esta. Es un llamamiento al remordimiento, a la conciencia, una gracia un perdon que
concede la Ley al arrepentimiento voluntario.[55]

As aptly elaborated on by Wharton:

First, the character of an attempt is lost when its execution is voluntarily abandoned. There is no conceivable overt act to
which the abandoned purpose could be attached. Secondly, the policy of the law requires that the offender, so long as he
is capable of arresting an evil plan, should be encouraged to do so, by saving him harmless in case of such retreat before
it is possible for any evil consequences to ensue. Neither society, nor any private person, has been injured by his
act.There is no damage, therefore, to redress. To punish him after retreat and abandonment would be to destroy the
motive for retreat and abandonment.[56]

It must be borne in mind, however, that the spontaneous desistance of a malefactor exempts him from criminal
liability for the intended crime but it does not exempt him from the crime committed by him before his desistance.[57]
In light of the facts established by the prosecution, we believe that accused-appellant intended to have carnal
knowledge of private complainant. The overt acts of accused-appellant proven by the prosecution were not mere
preparatory acts. By the series of his overt acts, accused-appellant had commenced the execution of rape which, if not for
his spontaneous desistance, will ripen into the crime of rape. Although accused-appellant desisted from performing all the
acts of execution however his desistance was not spontaneous as he was impelled to do so only because of the sudden
and unexpected arrival of Rossel. Hence, accused-appellant is guilty only of attempted rape.[58] In a case of similar factual
backdrop as this case, we held:

Applying the foregoing jurisprudence and taking into account Article 6 of the Revised Penal Code, the appellant can only
be convicted of attempted rape. He commenced the commission of rape by removing his clothes, undressing and kissing
his victim and lying on top of her. However, he failed to perform all the acts of execution which should produce the crime
of rape by reason of a cause other than his own spontaneous desistance, i.e., by the timely arrival of the victims
brother. Thus, his penis merely touched Mary Joys private organ. Accordingly, as the crime committed by the appellant is
attempted rape, the penalty to be imposed on him should be an indeterminate prison term of six (6) years of prision
correccional as minimum to twelve (12) years of prision mayor as maximum.
 The penalty for attempted rape is prision mayor which is two degrees lower than reclusion perpetua.[59] Accused-
appellant should be meted an indeterminate penalty the minimum of which should be taken from prision
correccional which has a range of from six months and one day to six years and the maximum of which shall be taken
from the medium period of prision mayor which has a range of from eight years and one day to ten years, without any
modifying circumstance. Accused-appellant is also liable to private complainant for moral damages in the amount
of P25,000.00.
IN LIGHT OF ALL THE FOREGOING, the Decision of the Regional Trial Court of Manila, Branch 54, is SET
ASIDE. Another judgment is hereby rendered as follows:
1. In Criminal Case No. 99-171390, accused-appellant is hereby found guilty beyond reasonable doubt of simple
rape under Article 335 of the Revised Penal Code as amended and is hereby meted the penalty of reclusion
perpetua. Accused-appellant is also hereby ordered to pay private complainant Analia Orillosa the amounts ofP50,000.00
by way of civil indemnity and P50,000.00 by way of moral damages;
2. In Criminal Case No. 99-171391, accused-appellant is hereby found guilty of attempted rape under Article 335 of
the Revised Penal Code as amended in relation to Article 6 of the said Code and is hereby meted an indeterminate
penalty of from six years of prision correccional in its maximum period, as minimum to ten years of prision mayorin its
medium period, as maximum. Accused-appellant is hereby ordered to pay private complainant Analia Orillosa the amount
of P25,000.00 by way of moral damages; and,
3. In Criminal Cases Nos. 99-171392 and 99-171393, accused-appellant is hereby found guilty beyond reasonable
doubt of two counts of simple rape, defined in Article 335 of the Revised Penal Code as amended and is hereby meted
the penalty of reclusion perpetua for each count. Accused-appellant is hereby ordered to pay to private complainant
Analia Orillosa the amount of P50,000.00 by way of civil indemnity and the amount of P50,000.00 by way of moral
damages for each count, or a total amount of P200,000.00.
SO ORDERED.
Davide, Jr., C.J., Puno, Vitug, Mendoza, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio,
Austria-Martinez, Corona, Carpio-Morales, and Azcuna, JJ.,concur.
Bellosillo, J., on leave.
G.R. No. L-43530 August 3, 1935

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
AURELIO LAMAHANG, defendant-appellant.

Honesto K. Bausa for appellant.

Office of the Solicitor-General Hilado for appellee.

RECTO, J.:

The defendant Aurelio Lamahang is before this court on appeal from a decision of the Court of First Instance of Iloilo,
finding him guilty of attempted robbery and sentencing him to suffer two years and four months of prision correccional and
to an additional penalty of ten years and one day of prision mayor for being an habitual delinquent, with the accessory
penalties of the law, and to pay the costs of the proceeding.

At early dawn on March 2, 1935, policeman Jose Tomambing, who was patrolling his beat on Delgado and C.R. Fuentes
streets of the City of Iloilo, caught the accused in the act of making an opening with an iron bar on the wall of a store of
cheap goods located on the last named street. At that time the owner of the store, Tan Yu, was sleeping inside with
another Chinaman. The accused had only succeeded in breaking one board and in unfastening another from the wall,
when the policeman showed up, who instantly arrested him and placed him under custody.

The fact above stated was considered and declared unanimously by the provincial fiscal of Iloilo, the trial judge and the
Solicitor-General, as constituting attempted robbery, which we think is erroneous.

It is our opinion that the attempt to commit an offense which the Penal Code punishes is that which has a logical relation
to a particular, concrete offense; that, which is the beginning of the execution of the offense by overt acts of the
perpetrator, leading directly to its realization and consummation. The attempt to commit an indeterminate offense,
inasmuch as its nature in relation to its objective is ambiguous, is not a juridical fact from the standpoint of the Penal
Code. There is no doubt that in the case at bar it was the intention of the accused to enter Tan Yu's store by means of
violence, passing through the opening which he had started to make on the wall, in order to commit an offense which, due
to the timely arrival of policeman Tomambing, did not develop beyond the first steps of its execution. But it is not sufficient,
for the purpose of imposing penal sanction, that an act objectively performed constitute a mere beginning of execution; it
is necessary to establish its unavoidable connection, like the logical and natural relation of the cause and its effect, with
the deed which, upon its consummation, will develop into one of the offenses defined and punished by the Code; it is
necessary to prove that said beginning of execution, if carried to its complete termination following its natural course,
without being frustrated by external obstacles nor by the voluntary desistance of the perpetrator, will logically and
necessarily ripen into a concrete offense. Thus, in case of robbery, in order that the simple act of entering by means of
force or violence another person's dwelling may be considered an attempt to commit this offense, it must be shown that
the offender clearly intended to take possession, for the purpose of gain, of some personal property belonging to another.
In the instant case, there is nothing in the record from which such purpose of the accused may reasonably be inferred.
From the fact established and stated in the decision, that the accused on the day in question was making an opening by
means of an iron bar on the wall of Tan Yu's store, it may only be inferred as a logical conclusion that his evident intention
was to enter by means of force said store against the will of its owner. That his final objective, once he succeeded in
entering the store, was to rob, to cause physical injury to the inmates, or to commit any other offense, there is nothing in
the record to justify a concrete finding.1avvphil.ñet

It must be borne in mind (I Groizard, p. 99) that in offenses not consummated, as the material damage is wanting, the
nature of the action intended (accion fin) cannot exactly be ascertained, but the same must be inferred from the nature of
the acts executed (accion medio). Hence, the necessity that these acts be such that by their very nature, by the facts to
which they are related, by the circumstances of the persons performing the same, and by the things connected therewith,
they must show without any doubt, that they are aimed at the consummation of a crime. Acts susceptible of double
interpretation , that is, in favor as well as against the culprit, and which show an innocent as well as a punishable act,
must not and can not furnish grounds by themselves for attempted nor frustrated crimes. The relation existing between
the facts submitted for appreciation and the offense which said facts are supposed to produce must be direct; the intention
must be ascertained from the facts and therefore it is necessary, in order to avoid regrettable instances of injustice, that
the mind be able to directly infer from them the intention of the perpetrator to cause a particular injury. This must have
been the intention of the legislator in requiring that in order for an attempt to exist, the offender must commence the
commission of the felony directly by overt acts, that is to say, that the acts performed must be such that, without the intent
to commit an offense, they would be meaningless.
Viada (Vol. I, p. 47) holds the same opinion when he says that "the overt acts leading to the commission of the offense,
are not punished except when they are aimed directly to its execution, and therefore they must have an immediate and
necessary relation to the offense."

Considering — says the Supreme Court of Spain in its decision of March 21, 1892 — that in order to declare that such
and such overt acts constitute an attempted offense it is necessary that their objective be known and established, or that
said acts be of such nature that they themselves should obviously disclose the criminal objective necessarily intended,
said objective and finality to serve as ground for the designation of the offense: . . . .

In view of the foregoing, we are of the opinion, and so hold that the fact under consideration does not constitute attempted
robbery but attempted trespass to dwelling (People vs. Tayag and Morales, 59 Phil., 606, and decisions of the Supreme
Court of Spain therein cited). Under article 280 of the Revised Penal Code, this offense is committed when a private
person shall enter the dwelling of another against the latter's will. The accused may be convicted and sentenced for an
attempt to commit this offense in accordance with the evidence and the following allegation contained in the information:
"... the accused armed with an iron bar forced the wall of said store by breaking a board and unfastening another for the
purpose of entering said store ... and that the accused did not succeed in entering the store due to the presence of the
policeman on beat Jose Tomambing, who upon hearing the noise produced by the breaking of the wall, promptly
approached the accused ... ." Under the circumstances of this case the prohibition of the owner or inmate is presumed.
(U.S. vs. Ostrea, 2 Phil., 93; U.S. vs. Silvano, 31 Phil., 509' U.S. vs. Ticson, 25 Phil., 67; U.S. vs. Mesina, 21 Phil., 615;
U.S. vs. Villanueva, 18 Phil., 215; U.S. vs. Panes, 25 Phil., 292.) Against the accused must be taken into consideration
the aggravating circumstances of nighttime and former convictions, — inasmuch as the record shows that several final
judgments for robbery and theft have been rendered against him — and in his favor, the mitigating circumstance of lack of
instruction. The breaking of the wall should not be taken into consideration as an aggravating circumstance inasmuch as
this is the very fact which in this case constitutes the offense of attempted trespass to dwelling.

The penalty provided by the Revised Penal Code for the consummated offense of trespass to dwelling, if committed with
force, is prision correccional in its medium and maximum periods and a fine not exceeding P1,000 (art. 280, par. 2);
therefore the penalty corresponding to attempted trespass to dwelling is to degrees lower (art. 51), or, arresto mayor in its
minimum and medium periods. Because of the presence of two aggravating circumstances and one mitigating
circumstance the penalty must be imposed in its maximum period. Pursuant to article 29 of the same Code, the accused
is not entitled to credit for one-half of his preventive imprisonment.

Wherefore, the sentence appealed from is revoked and the accused is hereby held guilty of attempted trespass to
dwelling, committed by means of force, with the aforesaid aggravating and mitigating circumstances and sentenced to
three months and one day of arresto mayor, with the accessory penalties thereof and to pay the costs.

Avanceña, C.J., Abad Santos, Hull, and Vickers, JJ., concur.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ANTONIO GASTADOR y WAGAS, accused-appellant.

DECISION
PANGANIBAN, J.:

Seldom are there eyewitnesses to a rape. Hence, a conviction must often rest on the credible testimony of the
offended party. And appellate courts, not having participated in the trial and not having directly evaluated the demeanor of
witnesses on the stand, depend to a large degree on the factual assessments of trial judges. [1]

The Case

Appellant Antonio Gastador seeks the reversal of the January 29, 1996 Decision[2] of the Regional Trial Court of
Quezon City, Branch 82, which convicted him of rape and sentenced him to reclusion perpetua.
On May 5, 1994, Crisanta Balonzo-de Rosas[3] filed a Complaint[4] charging Antonio Gastador y Wagas with rape
allegedly committed as follows:

"That on or about the 1st day of May, 1994, in Quezon City, Philippines, the said accused by means of force and
intimidation, to wit: [did] then and there wilfully, unlawfully and feloniously at knife point, give her fistic blows on the
stomach, causing her to lose consciousness and thereafter have carnal knowledge [of] the undersigned complainant
against her will and without her consent."[5]

Upon the certification of Assistant City Prosecutor Leonil G. Reas, the Complaint was treated as the Information.
When arraigned on June 1, 1994, appellant, assisted by Counsel de Parte, Manuel Aclo, pleaded not guilty.[6] Trial
proceeded in due course. Thereafter, the court a quo rendered its Decision, which disposed as follows:

"WHEREFORE, premises considered, the accused, ANTONIO GASTADOR Y WAGAS, is hereby found guilty beyond
reasonable doubt of the crime of rape with which he is charged in the herein Complaint and is accordingly sentenced to
the penalty of reclusion perpetua, together with all the accessory penalties imposed by law.

"As no evidence was presented to prove actual and/or moral damages, no award therefor can be made by this Court. [7]

Hence, this appeal direct to this Court.[8]

The Facts
Version of the Prosecution

In its Brief,[9] the Office of the Solicitor General[10] summarized the facts, as viewed by the prosecution, in this
manner:

"Complainant Crisanta Balonzo-Derosas, her common-law husband Marlito Derosas (a.k.a. Marlon) and their 1 1/2
months old daughter Marissa reside at 245 Esteve Extension, Commonwealth, Quezon City.

"On May 1, 1994, at 1:00 o'clock in the afternoon, appellant, who is an uncle of Marlito, arrived at the said residence and
inquired from Crisanta about Marlito. Crisanta informed him that Marlito had gone out for work in Bicutan early that day.

"After getting a negative reply, appellant entered the house, placed the 'halaan' he was carrying on the kitchen table and
went outside. After a short while, appellant returned bringing with him a bottle of Tanduay E.S.Q., which he drank until
6:00 o'clock in the evening.

"Crisanta, on the other hand, went outside the house together with her baby and returned at about 6:00 o'clock in the
evening. As she was about to lay her baby on the bed, appellant suddenly approached her, pointed a knife at her neck
and told her, 'Babae ka lang at wala dito and asawa mo, kayang-kaya kita.' She resisted appellant's advances by fighting
him back. However, appellant punched her at the stomach causing her to lose consciousness while her baby slipped from
her arms and fell into the bed.

"When Crisanta regained consciousness, she found herself and appellant naked, with appellant on top of her doing the
push and pull movement while pointing a knife at her neck. While appellant was raping her, Crisanta felt blood oozing
from her vagina. She bled profusely and continued to bleed for three (3) more days after the incident.

"During the ordeal, Crisanta kept silent since she feared for her and her baby's life.

"After satisfying his lust, appellant warned Crisanta not to tell the incident to Marlito, otherwise, he [would] kill her and her
family. Crisanta was left crying in anger and desperation.

"At around 7:00 o'clock in the evening, Marlito arrived from work and saw appellant in their house. He was not surprised to
see appellant since appellant [was] a relative who had visited them in the past.

"Crisanta did not reveal her ordeal to Marlito since she was afraid that appellant might kill them. Marlito, however, noticed
Crisanta's swollen eyes and when he asked her about it, she just cried. Crisanta then stood up to cook. Marlito noticed the
bloodstains on Crisanta's short pants and on their bedsheet and when he asked Crisanta about it, she replied that she
was having her menstruation. He was, however, puzzled since she had just given birth to their daughter. Crisanta went on
with her household work and prepared dinner but only Marlito and appellant dined together. At dinner, Marlito found it
unusual that appellant was just silently staring at him and Crisanta.

"At bedtime, Marlito slept beside Crisanta. He noticed that she was profusely perspiring and although he became worried
about her, he opted not to question her anymore.

"Appellant slept at the couple's house on that same day. During his slumber, Marlito heard him utter the words, 'Sige na
Cris, isa lang,' three (3) times while doing a pumping motion. The next morning, appellant left the house. It was then that
Crisanta told Marlito about the rape incident angrily saying, 'Bakit ganoon and tiyo mo, kahayop!' Marlito was stunned and
unable to move.

"After regaining his composure, Marlito went to their landlord and borrowed money for Crisanta's medication. Upon
learning of the unfortunate incident, the landlord accompanied Marlito and Crisanta to the barangay chairman, who
referred them to police station 6 in barangay Batasan, Quezon City, where Crisanta executed her sworn statement.

"Thereafter, Crisanta was subjected to medico-legal examination by Dr. Cristina Freyra at Camp Crame, Quezon City on
May 3, 1994. The examination yielded the following findings:

'Subject is in non-virgin state physically.

'There are no external signs of recent application of any form of violence.

'Vaginal and peri-ureth[r]al smears are negative for gram-negative diplococci and for spermatozoa.'

"In the evening of the same day, policemen arrived at Marlito's residence and asked his assistance in the arrest of
appellant.

"Appellant was subsequently arrested at his workplace in Pasig."[11] (Citations omitted.)

Version of the Defense

In the Brief prepared by the Public Attorney's Office,[12] appellant set up the defense of denial and narrated the facts
as follows:

"ANTONIO GASTADOR denied having raped Crisanta de Rosas. On May 1, 1994 at 1:00 o'clock in the afternoon, he was
at the IPM Construction located at Pasig. He worked thereat from 7:00 o'cock in the morning up to 3:00 o'clock in the
afternoon on May 1, 1994. After working, he rested for a while, took a bath and went home to their rented house at
Manggahan. He was staying at Manggahan together with his son Jun-Jun, his nephew Marlon and the latter's wife
Crisanta and their one and one half (1 1/2) month old daughter. He arrived home at 6:00 o'clock in the evening and
thereat he saw Crisanta de Rosas and her daughter. He asked Crisanta for food and the latter obliged. He ate the food
which he bought from the market. After eating, he was supposed to go to Villa Beatrice, but he met his son Jun-Jun and
nephew Marlon at the door of their house.Marlon requested Crisanta to cook pork which he bought. While Crisanta was
cooking, he had conversation with Jun-Jun and Marlon. When Crisanta finished cooking, all of them had dinner. After
eating, they slept. Jun-Jun slept beside him while Marlon and Crisanta slept together. Marlon woke him up at 4:00 o'clock
in the morning the following morning because he (Antonio) was going to work. He took a bath, had coffee and then went
to work at IPM Construction at 5:00 o'clock in the morning. He worked thereat up to 9:00 o'clock in the
evening. Thereafter, he was arrested by three (3) persons and was brought to Police Precinct No. 6. They asked him if he
raped Crisanta de Rosas which he denied.When they reached Precinct No. 6, he was mauled by policemen which caused
his ribs to be broken.

"CIRILO DE ROSAS testified [that] on May 2, 1994 at 7:00 o'clock in the evening he was preparing to sleep at his
residence at Villa Beatriz when four (4) persons arrived asking the whereabouts of Antonio Gastador. He told them that
Antonio was at his work at the IPM Construction at Pasig. They requested him to accompany them to Antonio's place of
work and thereat they arrested Antonio. They brought Antonio to Precint No. 6 because a case for rape was filed against
him by Marlon de Rosas. On May 3, 1994, he brought food for Antonio at Precinct 6. Thereat, he met Marlon who was
asking Antonio to admit his guilt. Marlon told him that if they would give P20,000.00, then he would withdraw the case filed
against Antonio. They did not agree because Antonio [was] not guilty so he would not pay a single centavo. Then Marlon
offered that even for only P5,000.00 to be given to the policemen, they would withdraw the case, but still they did not
agree.

"ANTONIO GASTADOR, JR. declared that on May 1, 1994 at about 1:00 o'clock in the afternoon, he arrived at their
rented house located at Manggahan. Thereat, he saw Crisanta de Rosas taking care of her baby. He rested and while
resting his cousin Marlon arrived. Marlon ate and then invited him to watch a movie. They watched a movie at Ever
Commonwealth up to 5:45 in the afternoon. On their way home, they bought pork. They arrived home at around 6:30
o'clock in the evening when his father, Antonio, was about to go out to fetch them. When his father saw them, he returned
to the house. Marlon requested his wife Crisanta to cook the pork which they bought while he had conversation with his
father and Marlon. When Crisanta finished cooking, all of them ate together. Thereafter, he slept together with his father,
while Marlon and Crisanta slept on the 'papag'. At 4:30 the following morning, he and his father woke-up. After taking
coffee, they went to work at IPM construction."[13] (Citations omitted.)

Ruling of the Trial Court

Rejecting the appellant's denial, the court a quo gave credence to the victims account. It ruled:

"Let it be stated that the testimony of the private complainant as to how the offense of rape was perpetrated by the
accused, including its lurid and painful details, was clear, sincere, spontaneous and consistent. Whatever inconsistencies
there may be therein refer only to minor and collateral matters which do not affect either the substance of her declaration
or the weight of her testimony. Her demeanor on the witness stand further adds credence to her testimony, which was
moreover supported and corroborated on material points by the testimonies of the other prosecution witnesses.

"In sum, this Court finds that the prosecution has fully discharged its burden of proving the accused guilty beyond
reasonable doubt of the offense with which he is charged in the herein Complaint. The prosecution submits in its
Memorandum that the aggravating circumstance of abuse of confidence (Art. 14 (4), Revised Penal Code) has also been
proven to attend the commission of the offense. As the prosecution puts it:

'The commission of the crime of rape in the instant case was attended by the aggravating circumstance of
relationship. The private complainant, it should be noted, has trusted the accused, he being an uncle-in-law, and had no
inkling that he [would] rape her when [s]he allowed him entry into her house on the fateful afternoon of 01 May 1994. This
abuse of trust and confidence facilitated the commission of the rape and the accused took advantage of the offended
party's belief that the former would not abuse said confidence. In her testimony, private complainant allowed the accused
entry into her house despite the absence of her husband (TSN, 22 June 1994, p. 5).'

"Undeniably, our jurisprudence is to the effect that an aggravating circumstance, even if not alleged in the Complaint or
Information, may be proved over the objection of the defense, provided the same is generic in character. However, an
aggravating circumstance should be proved as fully as the crime itself to increase the penalty. In the case of abuse of
confidence, it is required that there be sufficient proof that the offended party had trusted the offender; that the offender
had abused such trust by committing the offense; and that the abuse of confidence must be a means of committing the
crime.From the evidence before it, this Court finds no sufficient proof of the third or last requisite. Evidently, it was not the
first time that the accused was in the house of the private complainant on May 1, 1994. He used to visit the place before
that date. He thus did not purposely utilize his relationship with the private complainant to commit the crime of rape on
her. Although he apparently abused the confidence reposed [i]n him by the offended party, it cannot be definitely and
positively concluded that he used said abuse of confidence to facilitate his criminal act. Accordingly, this Court finds that
no aggravating or mitigating circumstances attended the commission of the offense.

"However, this Court finds that the crime of rape was committed by the accused with the use of a deadly weapon, more
particularly a knife. This is indubitably established by the testimony of the offended party who said that the accused had a
knife pointed to her neck while perpetrating the dastardly act in order to cow her and obviate her resistance. Under Article
335 of the Penal code (as amended by R.A. No. 7659), the penalty therefor is reclusion perpetua to death. Thus, the
Indeterminate Sentence law is not applicable.Since there are neither mitigating nor aggravating circumstances in the
commission of the rape, the lesser penalty shall be applied. (Art. 63, Penal Code)."[14]

Assignment of Errors

In the Appellant's Brief prepared by the Public Attorney's Office, the defense imputed the following errors to the trial
court:

I. The trial court gravely erred in convicting accused-appellant not on the basis of the strength of the prosecution's
evidence but rather on the weakness of the evidence for the defense.

"II. The trial court gravely erred in convicting accused-appellant of the crime charged despite failure of the prosecution to
prove his guilt beyond reasonable doubt.[15]

The Aclo Brief, on the other hand, alleged the following errors:

"I - The trial court erred in preparing the decision based on the 'memorandum' (for the prosecution);

"II - The trial court erred in not finding that complainant's testimony is weak, inconsistent, and is therefore not credible; and
finally,

"III - The trial court erred in convicting the appellant [of] the crime of rape based on insufficient evidence, and not evidence
beyond reasonable doubt.[16]

In sum, appellant questions (1) the credibility of witnesses and (2) the sufficiency of the prosecution's evidence. He
also challenges the validity of the trial court's Decision, which he claims was based entirely on the prosecution's
memorandum.

This Court's Ruling

The appeal is without merit.

Preliminary Matter:
Validity of the Trial Court's Decision

The defense argues that the assailed Decision is not valid because it was based on the prosecution's memorandum,
not on the trial court's own determination of the facts.We are not convinced. The assailed Decision sufficiently complies
with Section 14 (1), Article VIII of the 1987 Constitution;[17] and Section 2, Rule 120 of the Rules of Court.[18]Both of these
provisions require that decisions clearly state how the court reached its conclusion in light of the applicable law and the
facts established.[19] True, the trial court quoted the facts narrated in the prosecutions memorandum, but it did make its
 own findings. After assessing the evidence presented, it agreed with the prosecution's evaluation of the case. This is
sufficient compliance with the Constitution and the Rules of Court. In any event, we hold that the conclusions of the trial
court are supported by the evidence on record.

First Issue
Credibility of Witnesses

Appellant describes the testimonies of Prosecution Witnesses Crisanta de Rosas and Marlito de Rosas as
"incredible, fantastic and inconsistent.[20]
We disagree. As a general rule, the lower court's assessment of the witnesses' credibility will not be disturbed on
appeal, unless some fact or circumstance of substance has been overlooked.[21]
Crisanta's testimony was clear, consistent and straightforward.[22] Breaking into sobs on the witness stand, she
narrated her fate in the hands of Appellant Gastador in this wise:
"ATTY BERBERABE:
Q. What time did you enter your house?
A. At around six in the evening.
Q. You said that Mr. Gastador finished his drinking at around six p.m. What did he do if any?
A. He suddenly [came] near me on our bed, ma'am. And he pointed a knife on my neck and told me that, 'Babae ka lang at
wala dito [ang] asawa mo, kayang-kaya kita.'
Q. And when he pointed a knife[, w]hat did he do if any?
A. I did fight him but he suddenly punched me on my stomach and I lost my consciousness.
Q. Where was Marissa Derosas at this time?
A. She was on my side.
Q. During this time that Mr. Gastador punched you in your stomach, where was your little daughter?
A. The baby fell from my arms and she fell on bed.
Q. When you regain[ed] consciousness, what did you see if any?
A. I saw him on top of me naked and I was also naked. And he pointed a knife on my neck and his organ was inside me.
Q. What do you mean when you said that his organ was inside you?
A. He was on top of me naked and his sex organ was inside of my organ. And his organ was going in and out of my organ.
Q. And during this time when he was on top of you, where was your daughter?
A. She was beside me, ma'am.
Q. How far was your little daughter from you?
A. She was just beside me.
xxxxxxxxx
Q You said [a while] ago that Mr. Gastador's sex organ was going in and out of your sex organ and while the knife was pointed
on your neck. What did you do if any?
A. Because I [was] so afraid, I did not move because my baby was on my side. And I was afraid that he might kill my baby.
Q. Did you notice [with which] xxx hand Mr. Gastador was holding the knife?
A. Right hand.
Q. Where did Mr. Gastador [point] the knife at you?
A. On my neck.
Q. What part? Right or left?
A. On the left side of my neck.
Q. And did you notice what his left hand was doing?
A. His left hand was on my right shoulder ma'am while he was doing 'karumal-dumal sa akin.'
COURT:
You said that the accused was doing something 'karumal-dumal' to you. What do you mean by 'karumal-dumal'?
A. His act of raping with his penis going in and out of my organ.
ATTY. BERBERABE:
Q. Mrs. Witness, do you know who inserted the sex organ of Mr. Gastador to you?
A. Antonio Gastador.
Q. How long was his sex organ inside your sex organ?
A. It lasted around five minutes.
Q. And during this time that Mr. Gastador's sex organ was going in and out of your sex organ[, w]hat did you feel if any?
A. I felt pain [in] my organ and the blood oozing from my organ.
ATTY. BERBERABE:
Q. After he inserted his sex organ into your sex organ, what did Mr. Gastador do next if any?
A. After he was through with what he did, he warned me not to tell xxx my husband, otherwise, he [would] kill all of us. Me, my
husband and my daughter."[23]
No woman in her right mind will cry rape, allow an examination of her private parts or subject herself and her family
to the humiliation concomitant to the prosecution of the case, unless the story is true. [24] Besides, her credible and positive
testimony prevails over the negative assertion of the accused.[25]
The defense likewise submits that it was physically impossible for her to "see" the private part of the appellant "going
in and out" of her sexual organ.[26] It is scarcely necessary to address this argument. Suffice it to say that the victim, a
married woman, did not need to rely on her sense of sight alone to know that her sexual organ was in contact with that of
the appellant.
The defense also posits that rape is negated by the medical finding that "[t]here are no external signs of recent
application of any form of violence" and that the "[v]aginal and peri-urethral smears are negative for gram-negative
diplococci and for spermatozoa.[27]
This argument is without merit. First, the absence of spermatozoa does not negate rape. [28] The felony is
consummated when the penis touches the pudendum, however slightly.[29] Ejaculation is not an element of the
crime. Second, medical authorities attest that no mark of violence may be detected if the blow is delivered to the
abdomen.[30]Thus, the absence of hematoma does not disprove the victims claim that the appellant punched her.
Appellant also states that rape was not possible because the locus criminis was not a secluded place. In several
cases, however, this Court has recognized that lust is no respecter of time and place, and that rape can be perpetrated
even where people congregate.[31] Thus, rape can be committed even in "the parks, the roadside, the school premises,
and even inside a house where there are other occupants or where other members of the family are also sleeping.[32]
We do not agree with the contention of the defense that, to corroborate the testimony of Crisanta, the prosecution
should have presented the knife as well as the blood-stained panty, shorts and blanket. This kind of evidence is not
essential to the prosecution of rape cases.[33] The victim's credible testimony, standing alone, is sufficient basis for the
conviction of appellant.[34]
There is no merit to the claim of the appellant that he was arrested without warrant and that no preliminary
investigation was conducted. Prior to entering his plea, he should have raised this objection to the warrantless
arrest[35] and lack of preliminary investigation.[36] As he did not do so at the proper time, such defenses are now deemed
waived. Moreover, his allegation that he was mishandled by the police is not supported by the evidence on record.

Second issue
Sufficiency of Evidence
 Rape is committed when a man has carnal knowledge of the victim with the use of force and intimidation.[37] From the
evidence on record, it is clear that the prosecution proved that appellant had sexual congress with the victim, and that he
accomplished this through force and intimidation.
We have consistently ruled that force and intimidation should be viewed from the perception or judgment of the victim
at the time of the commission of the felony.[38] The amount of force that warrants a conviction of rape is that which is
sufficient to bring about the desired result.[39] This element was sufficiently established in Crisanta's testimony, which we
quote:
ATTY. BERBERABE:
Q. After, Mr. Gastador told you that 'babae ka lang wala ang asawa mo, kayang-kaya kita' what did you do next, if any?
A. I fought him but he suddenly punched xxx my stomach and I [lost] my consciousness.
Q. After the incident which you related to us[, in which] Mr. Gastador the accused in this case inserted his penis into your
vagina what happened next, if any?
A. After using [me] he warned me not to tell xxx my husband because if I did he [would] kill all of us including my daughter.
Q. After he threatened to kill you and your family [if you would tell] your husband what happened what did you do next?
ATTY. ACLO:
I object to that, Your Honor. because the witness did not say she was threatened. Again, she merely testif[ied] that she was
allegedly told by Gastador that she [would] be killed. She did not use the word threatened.
COURT:
Q. Did you tell your husband about what happened?
A. Yes, Your Honor.
ATTY. BERBERABE:
I will repeat my earlier question.
Q. After he told you that 'papatayin ang anak mo at ang pamilya mo' what did you do if any?
ATTY. ACLO:
Already answered, Your Honor, she said she told her husband.
COURT:
Q. When did you tell your husband?
A. On the next day after my uncle Gastador left the house, Your Honor.
Q. When did you[r] husband come home?
A. At around 7:00 o'clock in the evening my husband arrived from his work.
Q. Was the accused still there when he arrived?
A. He stayed there and slept with us and did not leave us the whole night.
Q. Why did you not tell your husband about what happened that night?
A. Because I was afraid of the warning of Uncle Tony that he [would] kill all of us. [40]

Damages

In view of prevailing jurisprudence, the victim is hereby granted indemnity ex delictoin the sum of P50,000 without
need of proof other than the conviction of the accused for rape.[41] Further, in accordance with recent jurisprudence,[42] the
victim is also entitled to an award of moral damages in the sum of P50,000. The prosecution was able to proved that, as a
result of the crime, the victim lost weight, became sickly and suffered sleepless nights. [43]
 WHEREFORE, the assailed Decision is hereby AFFIRMED with the MODIFICATION that appellant is ordered to pay
the victim P50,000 as indemnity ex delicto and the additional amount of P50,000 as moral damages. Cost against the
appellant.
SO ORDERED.
Romero, (Chairman), Vitug, Purisima, and Gonzaga-Reyes, JJ., concur.
G.R. No. 210972, March 19, 2016

ROGER ALLEN BIGLER, Petitioner, v. PEOPLE OF THE PHILIPPINES AND LINDA SUSAN PATRICIA E.
BARRETO, Respondents.

DECISION

PERLAS-BERNABE, J.:

Assailed in this petition for review on certiorari1 are the Decision2 dated May 16, 2013 and the Resolution3 dated January
21, 2014 of the Court of Appeals (CA) in CA-G.R. SP No. 119160, which affirmed in toto the Order4 dated November 3,
2010 of the Regional Trial Court of Makati City, Branch 59 (RTC) in Criminal Case No. 99-2439 denying petitioner Roger
Allen Bigler's (petitioner) Urgent Omnibus Motion (To: [1] Reopen proceedings and allow Accused to file his Notice of
Appeal; [2] Recall the Warrant of Arrest dated 22 May 2006), thus, rendering final and unappealable the RTC's
Decision5 dated November 25, 2003 convicting petitioner of the crime of Libel.

The Facts

Petitioner was charged with the crime of Libel before the RTC for allegedly maligning his former spouse, private
respondent Linda Susan Patricia E. Barreto, through a letter sent to her lawyer purportedly containing various malicious
and defamatory imputations against her. Petitioner pleaded "not guilty" to the charge, and thereafter, trial on the merits
ensued.6 On November 21, 2003, petitioner's counsel, Capuyan Quimpo & Salazar, filed a Withdrawal of
Appearance7 and requested therein that "all notices, legal processes, and pleadings intended for petitioner be sent to his
address at Portofmo, Small La Laguna, Sabang, Puerto Galera, Oriental Mindoro or to his new counsel who shall enter an
appearance in due time."

In a Decision8 dated November 25, 2003, the RTC found petitioner guilty beyond reasonable doubt of the crime of Libel
and, accordingly, sentenced him to suffer the penalty of imprisonment for a period of one (1) year, eight (8) months, and
twenty one (21) days to two (2) years, eleven (11) months, and ten (10) days, and to pay the costs of suit.9 Aggrieved,
petitioner moved for reconsideration,10which was, however, denied in an Order11 dated May 22, 2006. On even date, a
Warrant of Arrest was issued against petitioner.12 Consequently, he was arrested and taken into custody on October 8,
2010.13

Following his arrest, petitioner filed an Urgent Omnibus Motion 14 dated October 13, 2010 praying that the RTC: (a) reopen
the criminal proceedings against him; (b) allow him to file a notice of appeal; and (c) recall the Warrant of Arrest issued
against him. In said Motion, petitioner questioned the validity of the promulgation of the RTC Decision convicting him of
Libel, claiming that he never received notice of the same and that he was not present during such promulgation. 15 He
likewise questioned the validity of the service of the Order dated May 22, 2006 denying his motion for reconsideration,
maintaining that he never received a copy thereof.16 In this relation, petitioner likewise filed a Notice of Appeal17 dated
October 22, 2010, claiming that he only knew of the RTC's Order dated May 22, 2006 on October 11, 2010.

The RTC Ruling

In an Order18 dated November 3, 2010, the RTC denied petitioner's Urgent Omnibus Motion and, likewise, denied due
course to his Notice of Appeal.19

The RTC found that the Notice of Promulgation was sent to petitioner's address through registered mail and was even
received by a certain Sally Tanyag, his employee. In this relation, the RTC held that petitioner is estopped from feigning
ignorance of the judgment of conviction against him and the promulgation of such judgment, considering that: (a) the
RTC's Order dated January 27, 2004 clearly stated that "the subject judgment was promulgated by reading the same and
furnishing [a] copy thereof to accused who was duly assisted by Atty. Danilo Macalino;" and (b) he caused the filing of the
Motion for Reconsideration dated February 9, 2004 as evidenced by the Verification attached to the said Motion which
bore his signature.20

Further, the RTC found as immaterial petitioner's contention that he did not receive the Order dated May 22, 2006,
considering that he filed his Motion for Reconsideration dated February 9, 2004 only on February 13, 2004, or two (2)
days beyond the prescribed 15-day period reckoned from the promulgation of the RTC order on January 27, 2004. Hence,
the RTC concluded that its Decision convicting petitioner of the crime of Libel had long attained finality. 21

Petitioner moved for reconsideration22 but was denied in an Order23 dated March 8, 2011. Aggrieved, petitioner filed a
petition for certiorari24 before the CA.

The CA Ruling

In a Decision25 dated May 16, 2013, the CA affirmed the RTC ruling in toto. It held that while the service of the Notice of
Promulgation via registered mail was indeed a slight deviation from Section 6, Rule 120 of the Rules of Criminal
Procedure which requires personal service to the accused or through his counsel, such departure from the rules was
completely justifiable given that petitioner's previous counsel withdrew its representation shortly before the judgment was
set for promulgation. In any event, the CA opined that petitioner cannot feign ignorance of such promulgation as records
reveal that he was present thereat. Further, the CA agreed with the RTC that petitioner's filing of his Motion for
Reconsideration was made out of time, thus, rendering the guilty verdict against him final and executory. 26

Dissatisfied, petitioner moved for reconsideration,27 which was, however, denied in a Resolution28dated January 21, 2014;
hence, this petition.

The Issue Before the Court

The core issue for the Court's resolution is whether or not the CA correctly affirmed the ruling of the RTC finding that: (a)
the promulgation of the judgment of conviction against petitioner was valid; and (b) petitioner belatedly filed his Motion for
Reconsideration, thus, rendering said judgment final and executory.

The Court's Ruling

The petition is without merit.

At the outset, it should be pointed out that in this case, both the RTC and the CA found that the promulgation of the
judgment of conviction was valid, as records reveal that petitioner, assisted by Atty. Danilo Macalino, attended the same.
Similarly, the courts a quo both found that petitioner belatedly filed his motion for reconsideration assailing said judgment
of conviction, thus, rendering such judgment final and executory. Undoubtedly, these are findings of fact which cannot be
touched upon in the instant petition.

It must be stressed that a petition for review under Rule 45 of the Rules of Court covers only questions of law. Questions
of fact are not reviewable,29 absent any of the exceptions recognized by case law. 30 This rule is rooted on the doctrine that
findings of fact made by a trial court are accorded the highest degree of respect by an appellate tribunal and, absent a
clear disregard of the evidence before it that can otherwise affect the results of the case, those findings should not be
ignored.31Hence, absent any clear showing of abuse, arbitrariness or capriciousness committed by the lower court, its
findings of facts, especially when affirmed by the Court of Appeals, are binding and conclusive upon this Court, 32 as in this
case.

In view of the foregoing, petitioner is found guilty beyond reasonable doubt of the crime of Libel. Applying the provisions of
the Indeterminate Sentence Law, he should be sentenced to suffer the penalty of imprisonment for an indeterminate
period of four (4) months of arresto mayor, as minimum, to two (2) years and four (4) months of prision correccional, as
maximum. Unfortunately, the Decision dated November 25, 2003 of the RTC convicting petitioner of the said crime -
which had long become final and executory - sentenced him to suffer the penalty of imprisonment for a period of one (1)
year, eight (8) months, and twenty one (21) days to two (2) years, eleven (11) months, and ten (10) days.

Under the doctrine of finality of judgment or immutability of judgment, a decision that has acquired finality becomes
immutable and unalterable, and may no longer be modified in any respect, even if the modification is meant to correct
erroneous conclusions of fact and law, and whether it be made by the court that rendered it or by the Highest Court of the
land. Any act which violates this principle must immediately be struck down.33 Nonetheless, the immutability of final
judgments is not a hard and fast rule as the Court has the power and prerogative to relax the same in order to serve the
demands of substantial justice considering: (a) matters of life, liberty, honor, or property; (b) the existence of special or
compelling circumstances; (c) the merits of the case; (d) a cause not entirely attributable to the fault or negligence of the
party favored by the suspension of the rules; (e) the lack of any showing that the review sought is merely frivolous and
dilatory; and (f) that the other party will not be unjustly prejudiced thereby. 34

In a catena of similar cases where the accused failed to perfect their appeal on their respective judgments of
conviction,35 the Court corrected the penalties imposed, notwithstanding the finality of the decisions because they were
outside the range of penalty prescribed by law. There is thus, no reason to deprive herein petitioner of the relief afforded
the accused in the aforesaid similar cases. Verily, a sentence which imposes upon the defendant in a criminal prosecution
a penalty in excess of the maximum which the court is authorized by law to impose for the offense for which the defendant
was convicted, is void for want or excess of jurisdiction as to the excess.36

In sum, petitioner should only be sentenced to suffer the penalty of imprisonment for an indeterminate period of four (4)
months of arresto mayor, as minimum, to two (2) years and four (4) months of prision correccional, as maximum.

WHEREFORE, the petition is DENIED. Accordingly, the Decision dated May 16, 2013 and the Resolution dated January
21, 2014 of the Court of Appeals in CA-G.R. SP No. 119160 are hereby AFFIRMED. However, in the interest of
substantial justice, the Decision dated November 25, 2003 of the Regional Trial Court of Makati City, Branch 59 in
Criminal Case No. 99-2439 is MODIFIED, sentencing herein petitioner Roger Allen Bigler to suffer the penalty of
imprisonment for an indeterminate period of four (4) months of arresto mayor, as minimum, to two (2) years and four (4)
months of prision correccional, as maximum.

SO ORDERED.cralawlawlibrary

Sereno, C.J., (Chairperson), Leonardo-De Castro, Bersamin, Perlas-Bernabe, and Caguioa, JJ., concur.
FELIX RAIT, G.R. No. 180425

Petitioner,
Present:

YNARES-SANTIAGO, J.,

Chairperson,

AUSTRIA-MARTINEZ,
- versus -
CHICO-NAZARIO,

NACHURA, and

REYES, JJ.

Promulgated:

THE PEOPLE OF THE PHILIPPINES,

July 31, 2008
Respondent.

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

RESOLUTION

NACHURA, J.:

Before this Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court seeking the reversal of
the Court of Appeals (CA) Decision[1] in CA-G.R. CR No. 23276 dated January 26, 2006 and its
Resolution[2] dated October 10, 2007. The Court of Appeals upheld the Decision[3] of the Regional Trial Court (RTC) of
Cagayan de Oro City, Branch 20, wherein petitioner Felix Rait was convicted of attempted rape.

On November 18, 2003, AAA[4] asked permission from her parents to go to her brothers house in Nazareth
Street to get her athletic pants. When she was there, her brother requested her to buy cigarettes from a nearby store.
While in the store, petitioner Rait and one Janiter Pitago arrived. The two ordered beer and invited AAA to join them. She
initially refused. However, when Aurora Raez, another neighbor, joined them, AAA was forced to drink beer. After drinking
a glass of beer, she became drunk. When she was feeling weak, petitioner and his co-accused brought her out to 20th and
21st Streets where the petitioner and his co-accused brought her to the side of the street and forcibly removed her pants
and underwear. Petitioner then forcibly inserted his finger into her vagina. AAA tried to shout for help but petitioner
covered her mouth while Pitago held her feet. Petitioner was on top of her and about to insert his penis into her vagina but
she was able to kick both men and run away.[5]
 AAA then went to her brothers house and related the incident to him. Her brother went out to find petitioner. When
AAAs brother did find petitioner, he tried to beat petitioner with a stick but the latter ran away. AAA and her brother then
went home to their parents house in Tambo, Macasandig, Cagayan de Oro City and told them what happened. At
about 3:00 a.m. of November 19, AAA was accompanied by her brother and stepmother to Operation Kahusay ug
Kalinaw to report the incident. They also went to Bombo Radyo to appeal for help in apprehending petitioner. From there,
they went to the Provincial Hospital for AAA to undergo medical examination.[6] They then proceeded to the police station
where the incident was recorded on the police blotter under Entry No. 8085. [7]

On May 26, 1994, Rait and Pitago were charged in an Information, which reads:

That on or about November 19, 1993, at 2:00 oclock in the morning, more or less (sic) at Nazareth,
Cagayan de Oro City, Philippines and within the jurisdiction of this Honorable Court, the above-named accused,
conspiring, confederating together and mutually helping one another, did then and there, wilfully (sic), unlawfully
and feloniously commence the commission of the crime of Rape, directly by overt acts, on the person of a [17-
year-old] minor, [AAA], by then and there (sic), with force and against the latters will while she was in a state of
intoxication, touching her breasts, removing her panty, holding her feet (by Janiter Pitago) and lying on top of her
(by Felix Rait), but did not perform all the acts of execution which would produce the crime of Rape, by reason of
some cause other than his own spontaneous desistance, that in when (sic) offended party was able to kick them
and the two ran away.

Contrary to and in violation of Article 335 in relation to Article 6, of the Revised Penal Code.

After trial, the RTC rendered a Decision, the dispositive portion of which reads:

WHEREFORE, premises considered, this court hereby finds the accused Felix Rait guilty beyond
reasonable doubt of the crime of Attempted Rape.

The basic penalty for Attempted Rape under Article 335 is two degrees lower than Reclusion Perpetua or
Prision Mayor in its full extent. Applying the Indeterminate Sentence Law, the accused is entitled to a penalty
lower to (sic) Prision Mayor or that of Prision Correccional in its full extent, (sic) hence, accused FELIX RAIT is
sentenced to an Indeterminate Sentence of PRISION CORRECCIONAL in its medium period as the minimum to
PRISION MAYOR in its medium period as the maximum under the same law.

The accused is entitled to his credit in full (sic) in his favor the period during which he was under
preventive imprisonment pending litigation.

Accused herein is further ordered to pay the complainant the sum of P20,000.00 pesos (sic) as indemnity
for Attempted rape to the complainant (sic); P5,000.00 pesos (sic) for actual damages and expenses and to pay
the costs.

SO ORDERED.[8]
 Petitioner appealed the judgment to the CA-Cagayan de Oro. Petitioner alleged that the RTC erred in: (1) giving
credence to the prosecution witnesses despite their inconsistent, contradictory and incredible testimonies; (2) in not
finding that petitioner was implicated in the case by reason of spite and vengeance; and (3) in finding petitioner guilty
beyond reasonable doubt of the crime of attempted rape despite the failure of the prosecution to prove his guilt. [9]

The CA denied the appeal and affirmed the trial courts ruling in all respects. [10] Petitioners motion for
reconsideration was likewise denied.

Petitioner now comes before this Court on the following grounds:

THE HONORABLE COURT OF APPEALS IN AFFIRMING THE DECISION OF THE TRIAL COURT
CONVICTING THE PETITIONER FOR THE CRIME OF ATTEMPTED RAPE, DECIDED A QUESTION OF
SUBSTANCE NOT IN ACCORD WITH THE LAW ON RAPE AND JURISPRUDENCE ON THE MATTER.

THAT THE HONORABLE COURT OF APPEALS COMMITTED SERIOUS ERROR IN [NOT DOWNGRADING]
THE CRIME OF ATTEMPTED RAPE TO ACTS OF LASCIVIOUSNESS IF NOT THAT OF UNJUST
VEXATION.[11]

Petitioner argues that he should be acquitted of the crime of attempted rape. If he is to be found guilty of any
offense, he puts forward the theory that based on this Courts ruling in Baleros, Jr. v. People,[12] he should be convicted
only of unjust vexation.

The petition is bereft of merit. We deny the Petition for Review.

First, the findings of fact of the trial court, especially when affirmed by the CA, are conclusive upon this Court. In
this case, the trial court found the acts imputed to petitioner to have been duly proven by the evidence beyond reasonable
doubt. We are bound by such finding.

On the strength of those proven facts, the next question is: what was the offense committed?

Petitioner argues that this Courts ruling in Baleros is applicable to his case.

In Baleros, accused was convicted of attempted rape. The CA sustained the conviction. Upon review, this Court
reversed the conviction and found accused guilty of light coercion. The Court declared:

Expounding on the nature of an attempted felony, the Court, speaking thru Justice Claro M. Recto
in People vs. Lamahang, stated that the attempt which the Penal Code punishes is that which has a logical
connection to a particular, concrete offense; that which is the beginning of the execution of the offense by overt
acts of the perpetrator, leading directly to its realization and consummation. Absent the unavoidable connection,
like the logical and natural relation of the cause and its effect, as where the purpose of the offender in performing
an act is not certain, meaning the nature of the act in relation to its objective is ambiguous, then what obtains is
an attempt to commit an indeterminate offense, which is not a juridical fact from the standpoint of the Penal Code.

There is absolutely no dispute about the absence of sexual intercourse or carnal knowledge in the
present case. The next question that thus comes to the fore is whether or not the act of the petitioner, i.e., the
pressing of a chemical-soaked cloth while on top of Malou, constitutes an overt act of rape.

Overt or external act has been defined as some physical activity or deed, indicating the intention to
commit a particular crime, more than a mere planning or preparation, which if carried out to its complete
termination following its natural course, without being frustrated by external obstacles nor by the voluntary
desistance of the perpetrator, will logically and necessarily ripen into a concrete offense.

Harmonizing the above definition to the facts of this case, it would be too strained to construe petitioner's
act of pressing a chemical-soaked cloth in the mouth of Malou which would induce her to sleep as an overt act
that will logically and necessarily ripen into rape. As it were, petitioner did not commence at all the performance of
any act indicative of an intent or attempt to rape Malou. It cannot be overemphasized that petitioner was fully
clothed and that there was no attempt on his part to undress Malou, let alone touch her private part. For what
reason petitioner wanted the complainant unconscious, if that was really his immediate intention, is anybodys
guess. The CA maintained that if the petitioner had no intention to rape, he would not have lain on top of the
complainant. Plodding on, the appellate court even anticipated the next step that the petitioner would have taken
if the victim had been rendered unconscious. Wrote the CA:

The shedding of the clothes, both of the attacker and his victim, will have to come later. His
sexual organ is not yet exposed because his intended victim is still struggling. Where the intended victim
is an educated woman already mature in age, it is very unlikely that a rapist would be in his naked glory
before even starting his attack on her. He has to make her lose her guard first, or as in this case, her
unconsciousness.

At bottom then, the appellate court indulges in plain speculation, a practice disfavored under the rule on
evidence in criminal cases. For, mere speculations and probabilities cannot substitute for proof required to
establish the guilt of an accused beyond reasonable doubt.

xxxx

Lest it be misunderstood, the Court is not saying that petitioner is innocent, under the premises, of any
wrongdoing whatsoever. The information filed against petitioner contained an allegation that he forcefully covered
the face of Malou with a piece of cloth soaked in chemical. And during the trial, Malou testified about the pressing
against her face of the chemical-soaked cloth and having struggled after petitioner held her tightly and pinned her
down. Verily, while the series of acts committed by the petitioner do not determine attempted rape, as earlier
discussed, they constitute unjust vexation punishable as light coercion under the second paragraph of Article 287
of the Revised Penal Code. In the context of the constitutional provision assuring an accused of a crime the right
to be informed of the nature and cause of the accusation, it cannot be said that petitioner was kept in the dark of
the inculpatory acts for which he was proceeded against. To be sure, the information against petitioner contains
sufficient details to enable him to make his defense. As aptly observed by then Justice Ramon C. Aquino, there is
no need to allege malice, restraint or compulsion in information for unjust vexation. As it were, unjust vexation
exists even without the element of restraint or compulsion for the reason that this term is broad enough to include
any human conduct which, although not productive of some physical or material harm, would unjustly annoy or
irritate an innocent person. The paramount question is whether the offenders act causes annoyance, irritation,
torment, distress or disturbance to the mind of the person to whom it is directed. That Malou, after the incident in
question, cried while relating to her classmates what she perceived to be a sexual attack and the fact that she
filed a case for attempted rape proved beyond cavil that she was disturbed, if not distressed by the acts of
petitioner.[13]

We are not persuaded by petitioners argument. Several facts attendant to this case distinguish it from Baleros,
enough to convince us to arrive at a different conclusion.

Unlike in Baleros, the acts of petitioner clearly establish his intention to commence the act of rape. Petitioner had
already successfully removed the victims clothing and had inserted his finger into her vagina. It is not empty speculation to
conclude that these acts were preparatory to the act of raping her. Had it not been for the victims strong physical
resistance, petitioners next step would, logically, be having carnal knowledge of the victim. The acts are clearly the first or
some subsequent step in a direct movement towards the commission of the offense after the preparations are made. [14]

Under Article 6, in relation to Article 335, of the Revised Penal Code, rape is attempted when the offender
commences the commission of rape directly by overt acts, and does not perform all the acts of execution which should
produce the crime of rape by reason of some cause or accident other than his own spontaneous desistance. [15]

This Court has held that an overt or external act -

is defined as some physical activity or deed, indicating the intention to commit a particular crime, more
than a mere planning or preparation, which if carried out to its complete termination following its natural
course, without being frustrated by external obstacles nor by the spontaneous desistance of the
perpetrator, will logically and necessarily ripen into a concrete offense. The raison detre for the law
requiring a direct overt act is that, in a majority of cases, the conduct of the accused consisting merely of
acts of preparation has never ceased to be equivocal; and this is necessarily so, irrespective of his
declared intent. It is that quality of being equivocal that must be lacking before the act becomes one
which may be said to be a commencement of the commission of the crime, or an overt act or before any
fragment of the crime itself has been committed, and this is so for the reason that so long as the
equivocal quality remains, no one can say with certainty what the intent of the accused is. It is necessary
that the overt act should have been the ultimate step towards the consummation of the design.It is
sufficient if it was the first or some subsequent step in a direct movement towards the commission of the
offense after the preparations are made. The act done need not constitute the last proximate one for
completion. It is necessary, however, that the attempt must have a causal relation to the intended crime.
In the words of Viada, the overt acts must have an immediate and necessary relation to the offense.[16]

Thus, we find that petitioner was correctly convicted of attempted rape.

A final observation. We note that the trial courts Decision sentenced petitioner to a prison term without specifying
the period this sentence covers. We will rectify this error even as we affirm petitioners conviction.

The penalty for attempted rape is prision mayor, or two degrees lower thanreclusion perpetua, the penalty for
consummated rape. Petitioner should be sentenced to an indeterminate sentence the minimum of which is in the range
of prision correccional, or within six months and one day to six years, and the maximum of which is prision
mayor medium, or within eight years and one day to ten years. In this case, the trial court sentenced petitioner to an
 Indeterminate Sentence of PRISION CORRECCIONAL in its medium period, as the minimum, to PRISION MAYOR in its
medium period, as the maximum.

WHEREFORE, the foregoing premises considered, the Court of Appeals Decision in CA-G.R. CR No. 23276
dated January 26, 2006 and its Resolution dated October 10, 2007 affirming petitioners conviction for ATTEMPTED
RAPE are AFFIRMED WITH MODIFICATION. The petitioner is sentenced to an indeterminate sentence of two (2) years,
four (4) months, and one (1) day of prision correccional medium, as minimum, to ten (10) years of prision mayor medium,
as its maximum. In all other respects, the trial courts Decision is AFFIRMED.

SO ORDERED.

ANTONIO EDUARDO B. NACHURA

Associate Justice

WE CONCUR:

CONSUELO YNARES-SANTIAGO

Associate Justice

Chairperson

MA. ALICIA AUSTRIA-MARTINEZ MINITA V. CHICO-NAZARIO

Associate Justice Associate Justice

RUBEN T. REYES

Associate Justice
ATTESTATION

I attest that the conclusions in the above Resolution were reached in consultation before the case was assigned to the
writer of the opinion of the Courts Division.

CONSUELO YNARES-SANTIAGO

Associate Justice

Chairperson, Third Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson's Attestation, I certify that the
conclusions in the above Resolution had been reached in consultation before the case was assigned to the writer of the
opinion of the Courts Division.

REYNATO S. PUNO

Chief Justice
 [G.R. No. 116239. November 29, 2000]

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ELPIDIO MERCADO y HERNANDO and AURELIO ACEBRON y
ADORA, accused-appellants.

DECISION
PER CURIAM:

For automatic review by the court is the decision,[1] dated July 22, 1994, of the Regional Trial Court, Branch 156,
Pasig, convicting accused-appellants SPO2 Elpidio Mercado y Hernando and SPO1 Aurelio Acebron y Adora, of the
Philippine National Police of Tanay, Rizal, of kidnapping with murder and sentencing them as follows:

WHEREFORE, in the light of the foregoing discussions and finding the guilt of both accused to be proven beyond
reasonable doubt, while the undersigned Presiding Judge does not believe in the imposition of the death penalty as a
form of punishment, nevertheless, in obedience to the law which is his duty to uphold, the Court hereby sentences both
accused, ELPIDIO MERCADO y HERNANDO and AURELIO ACEBRON y ADORA, to death, to proportionately indemnify
the heirs of the deceased Richard Buama in the sum of fifty thousand pesos (P50,000.00); to pay the sum of fifty two
thousand six hundred eighty pesos (P52,680.00) (Exhibit J, J-1 to J-7) as expenses incident to the burial; and the further
sum of one hundred thousand pesos (P100,000.00) by way of moral and exemplary damages, all without subsidiary
imprisonment in case of insolvency and to pay the costs.

Let a Commitment Order be issued for the transfer of both accused from the Pasig Municipal Jail to the Bureau of
Corrections, Muntinlupa, Metro Manila.

Let the records of this case be forwarded immediately to the Supreme Court for mandatory review.

SO ORDERED.[2]

The information against accused-appellants charged-

That on or about the 9th day of February, 1994, in the Municipality of Pasig, Metro Manila, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, being them members of the PNP, conspiring and
confederating together and mutually helping and aiding one another, did then and there wilfully, unlawfully, and feloniously
kidnap one Richard Buama, a 17 year old minor and boarded him in a Red car bearing License plate No. CGZ 835
against his will thus depriving him of his freedom of liberty (sic), brought him to Tanay, Rizal in a safe house and there
subjected him to extreme/brutal physical violence, and thereafter with abuse of superior strength and evident
premeditation hacked and bludgeoned/clubbed said Richard Buama who thereby sustained mortal wounds which directly
caused his death.

Contrary to law.[3]

Because of the gravity of the charge, no bail was recommended for the provisional release of accused-appellants.
When arraigned on March 8, 1994, both accused-appellants, assisted by counsel,[4]pleaded not guilty to the crime
charged. During the trial, the prosecution presented the following witnesses: Florencio Villareal, Eric Ona, SPO2 Virgilio
Buama, Maria Buama, Lourdes Vergara, SPO2 Delfin Gruta, SPO2 James Mabalot, Jesus Nieves Vergara, and Lupito
Buama. Their testimonies are as follows:
Twelve-year-old Florencio Villareal testified that at around 9 oclock in the evening of February 9, 1994, he and
Richard Buama were picked up by accused-appellant Elpidio Mercado near Mercados house in Sto. Tomas, Bukid, Pasig,
Metro Manila. Mercado arrived in a car, together with Eric Ona. Mercado suspected Florencio Villareal and Richard
Buama of being the ones who had broken into his store and stolen money.Florencios friend, Rex Bugayong, was able to
run from Mercado. Florencio and Richard were pushed into Mercados car. Florencio said Mercado poked a gun at
Richard which made the latter say, Sasama na lang po ako. Wag ninyo lang po akong sasaktan. (I will go with you. Just
dont hurt me.)
Mercado drove the car to Tanay, Rizal. Florencio and Richard were seated at the back, behind Mercado and Eric,
respectively. Upon reaching Tanay at around 11 oclock in the evening Mercado took the three of them (Florencio,
Richard, and Eric) to an apartment. Florencio was led inside the apartment while Richard was held outside by
Mercado. When Florencio looked through the window, he saw Mercado slap and box Richard. Then he was brought
inside. Mercado later went upstairs. According to Florencio, Richard asked if they could leave the place as he held his
stomach in pain, but Florencio replied that the door was padlocked. Eventually, Mercado came down with Acebron.
Richard was made to sit on the floor in the kitchen of the apartment. Mercado then told Aceborn that the had brought
him a present (pasalubong) and that they were going to kill two boys a small one and a big one who was dark. In reply,
Aceborn said, Pare, huwag yung maliit dahil kasing hawig ng anak ko, saka magbe-birthday pa kinabukasan.(Buddy, not
the small one because he resembles my son who will celebrate his birthday tomorrow.) As the conversation was made
within his hearing distance, Richard became so scared that he could not answer when asked by Acebron about a girls
picture found in his wallet. This angered Acebron who boxed Richards in the stomach.
Mercado thereafter ordered Richard to take off all his clothes and lie face down on the kitchen floor. Mercado asked
his aide Jeff to get a rope. Jeff brought a piece of rattan rope and tied Richards hands, while Mercado tied Richards
feet. This happened at about 11:30 in the evening. Mercado also ordered Jeff to get rags with which to blindfold and gag
Richard and then asked Acebron to get a bolo or a big knife. After getting a bolo, Acebron and Jeff put Richard into the
luggage compartment of Mercado's car. They then drove away, leaving behind Florencio and Eric in the apartment. After
two hours, Mercado and Acebron came back. Florencio saw Acebron washing the bloodstains off the bolo. He asked
Mercado where Richard was, to which Mercado replied, "Wala na. Pinatahimik ko na." ("Gone. I have already silenced
him.")
Mercado and Acebron then took Eric and Florencio to a beerhouse in Tanay, Rizal and warned them not to tell
anyone about the incident or they and their families would be killed. For fear of his life and that of his family, Florencio
promised he would not. From the beerhouse, Mercado drove to Acebron's apartment, where the latter was dropped off,
and then proceeded home to Pasig with Eric and Florencio.
Florencio waited three days for news about Richard. On February 12, 1994, with still no news about Richard,
Florencio decided to talk to Richard's sister, a flower vendor whose store was located near the Pasig Church. Florencio
told her to look for Richard in Tanay; he even promised to help them once they found him. Actually, it was Richard's
brother, Virgilio Buama, a policeman, who found Richard's body in a morgue in Morong, Rizal. He was told by a funeral
parlor employee that they had retrieved Richard's body near the boundary of Laguna. Florencio attended the wake of his
friend in Sto. Tomas, Pasig.[5]
Virgilio Buama, a policeman and brother of Richard, last saw the latter on December 25, 1993 as Richard lived with
their mother. On February 11, 1994, Virgilio learned from his sister, Maria Buama, that Richard had been picked up by a
policeman on February 9, 1994. Hence, he went to see Florencio Villareal, who related to him how Richard had been
kidnapped and killed by Mercado. Virgilio took Florencio to his house, and the following day, February 12, 1994, they went
to the PNP headquarters at Hilltop, Taytay, Rizal, where Florencio was shown pictures by Maj. Patricio Abenido. Florencio
picked out pictures of Mercado and Acebron and identified them as the culprits in the killing of Richard. Florencio gave a
sworn statement concerning the incident to SPO2 James Mabalot at the PNP headquarters. Mercado was thereafter
ordered to report to the Provincial Director, Col. Maralit, and it was there that Florencio pointed to Mercado as the person
who had kidnapped and killed Richard. Acebron was likewise called, and he and Mercado were detained at the Rizal PNP
Command Stockade.
Virgilio found Richard's body at the San Francisco Funeral Homes in Morong, Rizal.The owner/manager of the
funeral parlor told him that Richard's body had been recovered in Mabitac, Laguna. Virgilio brought the remains of his
brother home.[6]
Eric Matanggihan Ona, 21 years old, was in the house of his neighbor Coco San Juan, in Sto. Tomas, Pasig, Metro
Manila, at around 9 o'clock in the evening of February 9, 1994 when Mercado arrived and asked him to go with him, after
Mercado had asked Eric's father for permission to do so. Along the way, Eric asked Mercado where they were going, and
the latter said that they would look for "Bunso" (Florencio Villareal's nickname) who had stolen money from his video
machines. Eric went with Mercado in the latter's car.
Florencio voluntarily went with them when Eric and Mercado saw him. Later, they saw Richard and Rex Bugayong
seated on the street gutter. When the two saw the car stop, Rex stood up and ran away. Mercado told Eric to go after
Rex, but Eric refused to do so because Rex was his friend. Mercado was able to get Richard. Mercado placed his arm
around Richard's shoulders while his other hand poked a gun at Richard's side. Eric heard Richard pleading with Mercado
not to hurt him and saying that he would go with him. Eric knew that Mercado poked a gun at Richard because the latter
was Mercado's suspect in the robbery of his store. He heard Mercado ask, "Eric, bakit naman pinasok nina Richard
Buama at Florencio Villareal ang tindahan ko?" (Eric, why did Richard Buama and Florencio Villareal break into my
store?") He answered that he did not know anything about it. Then, Mercado told Richard and Florencio, "Nagkamali kayo
ng tinalo.Isang napakalaking bangungot ang ginawa ninyo." ("You picked on the wrong guy. What you have done is a big
nightmare.") According to Eric, they then boarded Mercado's car. Along the way, Eric asked Mercado where they were
going, to which Mercado replied, "Sa Tanay. Have you been there?" Mercado asked Richard how many they were in the
family, to which Richard replied that they were ten and that one of his brothers was "one of them." ("Kabaro
ninyo.") Mercado also asked them when their birthdays were and whether they would like to have another birthday.
Upon reaching Tanay, they were brought to an apartment. There Mercado hit Richard on the face and told him to
take off his clothes. Mercado then went upstairs to wake up Acebron. Acebron tried to talk to Richard, but the latter would
not speak. This so angered Acebron that he boxed Richard hard on the stomach. Mercado then asked his aide named
Jeff to tie Richard's hands and feet and to blindfold and gag him. This done, Acebron and Jeff loaded Richard into the
luggage compartment of the car. Eric described Richard as pale (maputla). He had hematoma on his stomach and a
swollen right cheek that was blackish in color. Eric saw Acebron get a bolo from the kitchen, a long one, "mapurol" ("dull
and not sharp"), and with a black handle. Fearing for his safety, Eric kept quiet. Mercado warned them not to tell anybody
about the incident; otherwise, they would be killed.
After two hours, Mercado and Acebron returned to the apartment without Richard. Eric saw the bolo with bloodstains.
He asked Mercado, "Tata Pedi, where is Richard?" Mercado answered, "Wala na, pinagpahinga ko na." ("He is gone. I
have laid him to rest.")
At around 4 o'clock in the morning, they went to the nearby "Space" beerhouse in Tanay, Rizal where they were
made to drink. It was there that Eric heard Mercado and Acebron's conversation. Mercado asked, "Pare, ilan na ba ang
napatay mo?" ("How many have you killed?") Acebron said, "Ako, labimpito." ("Me, 17.") Mercado countered, "Pare, ako
dalawampu't lima." ("Buddy, me, 25.") Acebron said Richard was the 17th person he had killed while Mercado said that
Richard was his 25th victim.
Thereafter, with Eric and Florencio in tow, Mercado brought Acebron back to the apartment and they then went home
to Pasig in Mercado's car. They reached Sto. Tomas, Pasig at around 5:30 in the morning. Mercado again warned them:
"Eric, Bunso, yung sinabi ko, ha." ("Eric, Bunso, don't forget what I told you.") Eric took that to mean that they should not
tell anyone about the incident; otherwise, something bad would happen to them. Hence, hounded by fear, Eric did not
report the matter to the police. He also did not know that Richard had been killed. He said if he had known that Richard
was already dead when Mercado brought him home, he would have reported the matter to police authorities.
Richard's brothers and sisters searched for him the following day, but Eric, fearing for his life, did not talk to them. It
was only when he saw the wake being held for Richard at the Sto. Tomas Chapel that Eric realized that Richard was
dead. After Richard's wake, Mercado told Eric to look for Florencio lest the latter talk about the incident. Eric did not obey
Mercado. When Mercado asked him if he had seen Florencio, Eric said he had not. Thereafter, someone from the PNP
headquarters in Hilltop picked him up. At the investigation conducted, Eric executed a sworn statement.[7]
The sisters Maria Buama and Lourdes Buama Vergara testified that Richard was informally adopted by the Buama
family. When Richard was six months old, his mother gave him to Maria at the Pasig Immaculate Conception Church on
June 18, 1977. They considered Richard as their own brother and a member of their family. It was Florencio who informed
them that Mercado had picked him up and Richard on February 9, 1994. In the evening of February 11, 1994, upon
learning about the incident, Maria and Lourdes went to Mercado's house cum store in Sto. Tomas, Pasig where Richard
used to play video machines. Mercado's wife told them that Richard no longer came to the video store as he had done
something wrong. Asked what it was that Richard had done, Mercado's wife failed to answer because someone inside the
store said, "Hinahanap si Richard ng mga kapatid niya." When asked why his parents were not informed about Richard's
alleged mischief, Mercado's wife allegedly replied it was because their store had not yet been emptied. ("Hindi pa raw
nauubos ang tindahan nila.") Lourdes and Maria eventually found Richard's body in the early morning of February 12,
1994. For the wake the Buama family held for Richard at the Chapel of Sto. Tomas in Pasig and his funeral, they spent
P52,680.00.[8]
SPO2 James Mabalot took the statements of Eric and Florencio. When the latter implicated Mercado and Acebron,
SPO2 Mabalot took the two boys to the Administrative Building. From the pictures of almost all of the more than 100
members of the PNP Rizal, Eric and Florencio picked those of Mercado and Acebron. The statements that Eric and
Florencio executed were signed in the presence of both SPO2 Mabalot and his superior. SPO2 Mabalot and his team
thereafter went to a funeral parlor in Morong, Rizal where they were told that Richard's body had been taken to the PNP
Crime Laboratory Services for autopsy. They learned that Richard's body had been found at the boundary of Rizal and
Laguna.
On the way to that site, SPO2 Mabalot and his team dropped by the Tanay Police Station to coordinate with the
Tanay police in the investigation of the case. When Florencio, who was with them, saw Mercado's car parked outside the
police station, he recognized it as the one used in taking them from Pasig to Tanay. When SPO2 Mabalot and his team
opened the car, they found blood spots on the backseat. The car was then taken to the PNP Headquarters in Hilltop,
Taytay, Rizal for proper identification and examination of the bloodstains.
On orders of Col. Maralit, Mercado and Acebron were placed in detention. SPO2 Mabalot wanted Florencio and Eric
to confront Mercado and Acebron, but Florencio and Eric were so scared to do so for fear that the accused might hurt
them.[9]
 Dr. Jesusa Nieves Vergara, Acting Chief of the Medico-legal Division of the PNP Crime laboratory in Camp Crame,
Quezon City, executed and signed the postmortem examination report on Richard's body. Her report shows that the
cadaver had previously been embalmed; that there were two marks at the back of the left hand; that both hands were tied
with plastic cord while both feet were tied with rattan; and that it sustained nine injuries on the head, neck, left upper
extremity, and the left arm. There were abrasions, lacerations, and stab wounds. The multiple abrasions on the forehead
and the back of the left arm were possibly secondary to a fall against a hard surface. The lacerations were on the lower
jaw, on the front right ear, at the right ear lobe, and two on the right side of the neck. These could have been caused by a
blunt object such as a piece of wood, an iron bar, a hollow block, or anything hard. There were also injuries and other
lacerations on the back of the head towards the right side which could have been caused by the application of blunt force.
Opening of the head revealed hematoma or accumulation of blood. The medical report stated that Richard died of
"(i)ntracranial hemorrhage as a result of skull fracture."[10]
Accused-appellants' defense was alibi. SPO1 Miguel Catapusan, Administrative Officer of the Tanay PNP Municipal
Station, testified that accused-appellants both reported for work on February 9, 1994 at the police station. The morning
and evening Formation Sheets and the Police Duty Roster Book or the logbook showed that accused-appellant Elpidio
Mercado and accused- appellant Aurelio Acebron were both present from 8:00 a.m. to 8:00 p.m. However, after signing
the logbook in the morning, accused-appellants were told to report to the Rizal PNP Headquarters Command between
9:00 a.m. and 5:00 p.m. regarding some important matters. After the head count that night, the Chief of Police briefed the
policemen on their assignments for thirty minutes, until 8:30 p.m. [11]
Testifying in his own defense, accused-appellant Elpidio Mercado said that before he joined the PNP Tanay, Rizal,
he was with the Philippine Navy since 1976. He was transferred to the Philippine Coast Guard in 1981 where he served
until 1986. When the EDSA Revolution broke out, he was assigned to Malacaang as a member of the Presidential
Security Group (PSG) until 1991. His next assignment from 1991 to 1992 was at the Maritime Command, Anti-smuggling
Division. Thereafter, he was assigned to Task Force Habagat under Col. Panfilo Lacson of the Presidential Anti-Crime
Commission (PACC). In 1993, he was assigned to the PNP of Rizal. For his military and police services, Mercado claimed
he received several awards, commendations, and medals.[12]
On February 9, 1994, Mercado reported to the Tanay police station because Col. Maralit had summoned him the
night before. After signing the logbook, Mercado, together with Acebron and one SPO4 Bias, asked permission from their
superior officer to go to the PNP Hilltop Headquarters for an investigation. They left the Tanay Police Station at 8:10 a.m.
and proceeded to the Hilltop Headquarters where they stayed until 5:00 p.m.They went back to the Tanay Police Station
to attend the evening formation that lasted up to 8:30 p.m. Thereafter, Mercado went home with Acebron. They invited
SPO4 Bias to have dinner with them in their house at Plaza Aldea, Tanay. The house was provided to them by the local
government of Tanay, and they shared it with SPO2 Sagat and Chief Inspector Genabe. After SPO4 Bias went home at
10 o'clock in the evening, Mercado went to bed. At around 7 o'clock in the morning the following day, February 10, 1994,
Acebron woke Mercado up as he prepared to go to the office. Mercado told Acebron to inform his officer that he would not
attend the morning formation.
Mercado said he was married and that his wife stayed in their house in Sto. Tomas, Baltazar St., Pasig, Metro
Manila, to attend to their store and two video machines. He usually went home every 15th and 30th of the month except
when there were special occasions. He owned a red Chevrolet car, but it was seized by the 221st Mobile Force on the
ground that it was used in a crime. Mercado claimed that the travel time from Pasig to Tanay was one-and-a-half hours
and if traffic was heavy, two hours.
Mercado denied the allegations against him. He claimed that Eric and Florencio implicated them in the crime
because of an incident on January 23, 1994 in which Eric created trouble in his video machine shop. Mercado saw Eric
strangling a kid. He was going to pacify Eric, but the latter uttered bad words against him. So, he slapped Eric. The
youngsters scampered, but Acebron, who was visiting Mercado, was able to grab Florencio. Mercado hit Florencio on the
back of the head and told him not to show their faces anymore in his store because they were driving away his customers.
Since then, Eric and Florencio harbored ill feelings against him. They had been calling his house and threatening his
family that they would kill his son and rape his daughters. Hence, as a precautionary measure, he sent his children to
Cavite; only his wife, sister-in-law, and their maid remained in their house in Pasig.[13]
Aurelio Acebron, the other accused-appellant, also testified. He said that before he joined the Tanay Police Force in
November 1993, he had been a member of the Philippine Constabulary since 1975. He was assigned to the 61st PC
Battalion in Basilan and Cebu until 1978. From 1978 to 1979, he was an investigator of the Constabulary Metrocom. From
1979 to 1982, he was also an investigator at the regional headquarters of the RT Division in Zamboanga City. From 1982
to 1985, he served in the Military Police Brigade in Camp Aguinaldo. At the Rizal PNP Command, he was also an
investigator. During his active duty, he received 22 commendations, two medals, and six military merit medals. He was
also awarded a bronze medal in the aftermath of the 1989 failed coup d' etat in Makati.
Acebron claimed that on February 9, 1994, he reported for work before 8 o'clock in the morning as shown by the
logbook he signed. With Mercado and SPO4 Bias, he was ordered to report to Supt. Crescencio Maralit at Hilltop, Taytay,
Rizal. They left Tanay at 8: 10 a.m. and arrived at Hilltop at 9 o'clock that same morning. They conferred with Supt. Maralit
from 2 until 5 o'clock in the afternoon. They then went back to the Tanay PNP station and reported to Major Genabe.
Acebron attended the evening formation that lasted up to 8:30 in the evening, after which he went home to Plaza Aldea,
Tanay together with Mercado and SPO4 Bias. They had dinner with Bias and Major Genabe. Bias left at 10 o'clock in the
evening and they settled for the night. The following morning, he woke up at 6 o'clock. Before leaving for the office, he
woke up Mercado who, however, said that he would not attend the morning formation as he would go directly to his
assignment at Post No. 2.
Acebron also denied all accusations against him. He claimed that he had been implicated in revenge for what
happened on January 23, 1994 when he collared Florencio and Mercado hit the boy's back for causing trouble in
Mercado's video shop. Acebron claimed that he had been asked by police officers Mabalot and Ople to testify against
Mercado, but he refused. He claimed he had been detained on February 12, 1994 after he was implicated in this case. [14]
Corroborating other defense witnesses, SPO4 Teofilo Paz Bias swore that at 7:30 in the morning on February 9,
1994, he attended the morning formation at the Tanay police station. Mercado and Acebron were there present. At past
8:00 a.m., as he accompanied Mercado and Acebron to the headquarters at Hilltop, Taytay, Rizal, they saw Col. Maralit
with whom they conferred from 2:00 p.m. until 5:00 p.m. They then went back to Tanay to attend the evening formation
which lasted until about 8:45 in the evening. Major Genabe ordered him to go with Mercado and Acebron to discuss in the
house the result of the investigation at Hilltop, Taytay. They arrived in that house at 9:00 p.m. While they were having
dinner, they discussed what had happened at the investigation of Mercado and Acebron by the Provincial Director. At 10
o'clock that evening, after supper, Bias went home to Pililla, Rizal. The following morning, he saw Acebron report to
work.[15]
On the basis of the foregoing evidence, the trial court found both accused guilty and sentenced them to death.
Hence, this appeal. The joint brief of accused-appellants Mercado and Acebron contains the following assignment of
errors:

FIRST ASSIGNMENT OF ERROR

WITH ALL DUE RESPECT, THE TRIAL COURT GRAVELY ERRED AND ABUSED ITS DISCRETION AMOUNTING TO
LACK OF JURISDICTION IN GIVING CREDENCE TO CLASHING MATERIAL INCONSISTENCIES ON THE
TESTIMONIES OF THE TWO (2) PROSECUTIONS (sic) PRINCIPAL WITNESSES. THEIR CONTRADICTING
TESTIMONIES AND EVIDENCES CREATED NOT ONLY REASONABLE DOUBT BUT RATHER ESTABLISHED
FACTUAL ERROR THAT WOULD BRING ABOUT ACQUITTAL OF THE ACCUSED-APPELLANTS.

SECOND ASSIGNMENT OF ERROR

WITH ALL DUE RESPECT, THE TRIAL COURT GRAVELY ERRED AND ABUSED ITS DISCRETION AMOUNTING TO
LACK OF JURISDICTION IN DISREGARDING THE DIRECT MATERIAL EVIDENCE CONSISTING OF POLICE
LOGBOOK OR DUTY ROSTER BOOK (EXHIBITS "6" -MERCADO AND "4" -ACEBRON) AND TESTIMONIES OF SPO2
POLICE CATAPUSAN THAT BOTH ACCUSED-APPELLANTS ATTENDED THE MORNING FORMATION AT 8:00 IN
THE MORNING OF FEBRUARY 9, 1994 AT TANAY, RIZAL, THEN ATTENDED A CONFERENCE CALL OF SUPT.
CHIEF COLONEL MARALIT THE WHOLE DAY AT TAYTAY, RIZAL, THEN BACK TO TANAY, RIZAL AT 6:00 P.M. AND
BOTH ACCUSED-APPELLANTS ATTENDED THE EVENING FORMATION AT 8:00 P.M. WHICH LASTED UP TO 8:45
P.M., AFTER WHICH, THEY (SPO1 BIAS, MERCADO & ACEBRON) PROCEEDED TO MAJOR GENABE AT THE
TANAY APARTMENT AND MADE REPORT REGARDING THE CONFERENCE CONDUCTED BY COL. MARALIT UP
TO 10:00 P.M. HENCE, PHYSICALLY IMPOSSIBLE FOR THE ACCUSED MERCADO TO PICK UP THE VICTIM AT
9:00 P.M. AT PASIG, METRO MANILA.

THIRD ASSIGNMENT OF ERROR

WITH ALL DUE RESPECT, THE TRIAL COURT GRAVELY ERRED AND ABUSED ITS DISCRETION AMOUNTING TO
LACK OF JURISDICTION IN FINDING THAT THERE EXIST (sic) A CONSPIRACY, WITHOUT ANY EVIDENCE AND
BASIS IN FACT AND IN LAW THAT WILL SUPPORT ITS DECISION.

FOURTH ASSIGNMENT OF ERROR

WITH ALL DUE RESPECT, THE TRIAL COURT GRAVELY ERRED AND ABUSED ITS DISCRETION AMOUNTING TO
LACK OF JURISDICTION IN FINDING THE ACCUSED-APPELLANTS GUILTY BEYOND REASONABLE DOUBT OF
THE CRIME KIDNAPPING WITH HOMICIDE, THERE BEING NO EVIDENCE ADDUCED THAT HOMICIDE HAS BEEN
COMMITTED IN FURTHERANCE OR AS A CONSEQUENCE OF KIDNAPPING.
FIFTH ASSIGNMENT OF ERROR

WITH ALL DUE RESPECT, THE TRIAL COURT GRAVELY ERRED AND ABUSED ITS DISCRETION AMOUNTING TO
LACK OF JURISDICTION IN WRITING THE DECISION WITH UNDUE HASTE AND INCREDIBLE SPEED ONE (1) DAY
AFTER THE SUBMISSION OF ACCUSED (sic) 32-PAGE JOINT MEMORANDUM ON JULY 21, 1994, WITHIN THE 15-
DAY PERIOD GRANTED BY THE COURT AND PROMULGATING ITS DECISION ON THE NEXT DAY, JULY 22, 1994,
CONSISTING OF 39 PAGES, THUS, RESULTING IN FATAL ERROR OF CONVICTING BOTH ACCUSED
SENTENCING THEM TO DEATH BASED ON WRONG APPRECIATION OF FACTS, SPECULATIONS AND
PROBABILITIES AND DESPITE PATENT FAILURE OF THE PROSECUTION TO PROVE WHAT HAVE BEEN
ALLEGED UNDER THE CRIMINAL INFORMATION.

These assigned errors boil down to the following main issues: (1) credibility of witnesses, (2) alibi as a defense, and
(3) the presence of conspiracy.
These issues will be discussed in the course of this decision, although not necessarily in the order discussed by
accused-appellants in their brief. But before doing so, we first consider the threshold question raised in the Supplemental
Brief filed for accused-appellants by collaborating counsel Rene V. Sarmiento with regard to the constitutionality of
Republic Act No. 7659 providing for the death penalty for 13 heinous crimes.
I. CONSTITUTIONALITY OF R.A. 7659 AND R.A. 8177
Accused-appellants argue that Republic Act 7659 violates the 1987 Constitution because -

1. There are no compelling reasons to impose the death penalty for the crimes of treason, qualified piracy, qualified
bribery, parricide, murder, infanticide, kidnapping and serious illegal detention, robbery with violence against or
intimidation of persons, destructive arson, rape, plunder, importation of prohibited drugs, etc.

2. R.A. No.7659 violates the constitutional ban against infliction of cruel, degrading or inhuman punishment.

3. R.A. No. 7659 impugns the constitutional right to equality before the law.

4. R.A. No. 7659 repudiates the obligation of the Philippines under international law.

5. Death penalty is not deterrence to the commission of crimes.[16]

The constitutionality of Republic Act No. 7659 has already been settled in the Court's 12-3 per curiam Resolution
in People vs. Echegaray,[17] wherein the following rulings were made:

1. The death penalty is not a "cruel, unjust, excessive or unusual punishment." It is an exercise of the state's power to
"secure society against the threatened and actual evil."

2. The offenses for which Republic Act No. 7659 provides the death penalty satisfy "the element of heinousness" by
specifying the circumstances which generally qualify a crime to be punishable by death;

3. Republic Act No. 7659 provides both procedural and substantial safeguards to insure its correct application.

4. The Constitution does not require that "a positive manifestation in the form of a higher incidence of crime should first be
perceived and statistically proven" before the death penalty may be prescribed. Congress is authorized under the
Constitution to determine when the elements of heinousness and compelling reasons are present, and the Court would
exceed its own authority if it questioned the exercise of such discretion.

In the subsequent case of Echegaray vs. Secretary of Justice,[18] the Court sustained the constitutionality of Republic
Act No. 8177, providing for death by lethal injection against claims that death by lethal injection was cruel, degrading, or
inhuman punishment, and that the law violated treaty obligations. Petitioner in that case argued that death by lethal
injection constituted cruel, degrading, and inhuman punishment because: (1) Republic Act No. 8177 failed to provide for
the drugs to be used in administering lethal injection, the dosage for the drug to be administered, and the procedure in
administering drug(s) to the convict; (2) Republic Act No. 8177 and its implementing rules did not fix either the date of
execution of the convict or the time for notifying him, with the result that such uncertainties cause pain and suffering to the
convict, and (3) the possibility of botched executions or mistakes in administering drugs renders lethal injection inherently
cruel.
 Rejecting petitioner's contention that death by lethal injection violates the prohibition against cruel, degrading, and
inhuman punishment in Section 19(1), Article III of the Constitution, the Court said:

"Now it is well-settled in jurisprudence that the death penalty per se is not a cruel, degrading or inhuman punishment. In
the oft-cited case of Harden v. Director of Prisons, this Court held that '[p]unishments are cruel when they involve torture
or a lingering death; but the punishment of death is not cruel, within the meaning of that word as used in the constitution. It
implies there something inhuman and barbarous, something more than the mere extinguishment of life.' Would the lack in
particularity then as to the details involved in the execution by lethal injection render said law 'cruel, degrading or
inhuman'? The Court believes not. For reasons hereafter discussed, the implementing details of R.A. No. 8177 are
matters which are properly left to the competence and expertise of administrative officials." [19]

As to the contention that the re-imposition of the death penalty violates international treaty obligations, particularly the
International Covenant on Civil and Political Rights, the Court explained:

"Indisputably, Article 6 of the Covenant enshrines the individual's right to life. Nevertheless, Article 6(2) of
the Covenant explicitly recognizes that capital punishment is an allowable limitation on the right to life, subject to the
limitation that it be imposed for the most serious crimes.' Pursuant to Article 28 of the Covenant, a Human Rights
Committee was established and under Article 40 of the Covenant, States Parties to the Covenant are required to submit
an initial report to the Committee on the measures they have adopted which give effect to the rights recognized within
the Covenant and on the progress made on the enjoyment of those rights within one year of its entry into force for the
State Party concerned and thereafter, after five years. On July 27, 1982, the Human Rights Committee issued General
Comment No. 6 interpreting Article 6 of the Covenant stating that '(while) it follows from Article 6(2) to (6) that State
parties are not obliged to abolish the death penalty totally, they are obliged to limit its use and, in particular, to abolish it
for other than the 'most serious crimes.' Accordingly, they ought to consider reviewing their criminal laws in this light and,
in any event, are obliged to restrict the application of the death penalty to the 'most serious crimes.' The article strongly
suggests (pars. 2[2] and [6]) that abolition is desirable. x x x. The Committee is of the opinion that the expression 'most
serious crimes' must be read restrictively to mean that the death penalty should be a quite exceptional measure.
Further, The Safeguards Guaranteeing Protection of Those Facing the Death Penalty adopted by the Economic and
Social Council of the United Nations declare that the ambit of the term 'most serious crimes' should not go beyond
intentional crimes, with lethal or other extremely grave consequences.

"The Optional Protocol to the International Covenant on Civil and Political Rights was adopted by the General Assembly of
the United Nations on December 16, 1966, and signed and ratified by the Philippines on December 19, 1966 and August
22, 1989, respectively. The Optional Protocol provides that the Human Rights Committee shall receive and consider
communications from individuals claiming to be victims of violations of any of the rights set forth in the Covenant.

"On the other hand, the Second Optional Protocol to the International Covenant on Civil and Political Rights Aiming at the
Abolition of the Death Penalty was adopted by the General Assembly on December 15, 1989. The Philippines neither
signed nor ratified said document. Evidently, petitioner's assertion of our obligation under the Second Optional
Protocol is misplaced."[20]

Accused-appellants further argue that Republic Act No. 7659 denies equality before the law. They cite studies here
and abroad allegedly showing that "the death penalty has most often been used against the poor." This statement is too
sweeping to merit further serious consideration. Anyone, regardless of his economic status in life, may commit a crime.
While there may be perceived imbalances in the imposition of penalties, there are adequate safeguards in the
Constitution, the law, and procedural rules to ensure due process and equal protection of the law. As pointed out by
Representative Pablo Garcia when interpellated by Representative Joker Arroyo during the congressional deliberation on
the death penalty bill:

"x x x. (T)here is something more in the bill that protects the rights of every accused person, be he rich or poor. I refer to
the provisions under the Bill of Rights of the Constitution. The Constitution itself protects, envelops the accused with the
mantle of protection guaranteed by the Bill of Rights. Section 1 of Article III of the Constitution provides that no person
shall be deprived of life, liberty or property without due process of law. In other words, the accused cannot be deprived of
his life without due process of law nor shall any person be denied the equal protection of the laws. In other words, the
laws protect the rich and the poor, the lettered and the unlettered. That is guaranteed by the Constitution. x x x. [21]

Similarly, in People vs. Mijano,[22] this Court recently said:

"Finally, accused-appellant in his reply brief contends that the death penalty law is violative of the equal protection clause
of the 1987 Constitution because it punishes only people like him, the poor, the uneducated, and the jobless.
"The equality the Constitution guarantees is legal equality or, as it is usually put, the equality of all persons before the law.
Under this guarantee, each individual is dealt with as an equal person in the law, which does not treat the person
differently because of who he is or what he is or what he possesses (Bernas, The Constitution of the Republic of the
Philippines, A Commentary, 1987 ed., p. 6).

xxx xxx xxx

"Apparently, as it should be, the death penalty law makes no distinction. It applies to all persons and to all classes of
persons - rich or poor, educated, or uneducated, religious or non-religious. No particular person or classes of persons are
identified by the law against whom the death penalty shall be exclusively imposed."

Accused-appellants' claim that the death penalty does not deter the commission of crimes is without any basis. To be
sure, deterrence is not the only aim of the law. As Representative Pablo Garcia, the principal author of the death penalty
bill, explained "more than deterrence, x x x is retributive justice." [23] In People vs. Echegaray, it was further stated:

"The abolitionists in Congress insisted that all criminal reforms first be pursued and implemented before the death penalty
be reimposed in case such reforms prove unsuccessful. They claimed that the only compelling reason contemplated by
the Constitution is that nothing else but the death penalty is left for the government to resort to that could check the chaos
and the destruction that is being caused by unbridled criminality. Three of our colleagues are of the opinion that the
compelling reason required by the constitution is that there occurred a dramatic and significant change in the socio-
cultural milieu after the suspension of the death penalty on February 2, 1987 such as an unprecedented rise in the
incidence of criminality. Such are, however, interpretations only of the phrase 'compelling reasons' but not of the
conjunctive phrase 'compelling reasons involving heinous crimes.' The imposition of the requirement that there be a rise in
the incidence of criminality because of the suspension of the death penalty, moreover, is an unfair and misplaced
demand, for what it amounts to, in fact, is a requirement that the death penalty first prove itself to be a truly deterrent
factor in criminal behavior. If there was a dramatically higher incidence of criminality during the time that the death penalty
was suspended, that would have proven that the death penalty was indeed a deterrent during the years before its
suspension. Suffice it to say that the constitution in the first place did not require that the death penalty be first proven to
be a deterrent; what it requires is that there be compelling reasons involving heinous crimes.

"Article III, Section 19 (1) of the 1987 Constitution simply states that Congress, for compelling reasons involving heinous
crimes, may re-impose the death penalty. Nothing in the said provision imposes a requirement that for a death penalty bill
to be valid, a positive manifestation in the form of a higher incidence of crime should first be perceived and statistically
proven following the suspension of the death penalty. Neither does the said provision require that the death penalty be
resorted to as a last recourse when all other criminal reforms have failed to abate criminality in society. It is immaterial and
irrelevant that R.A. No. 7659 cites that there has been an 'alarming upsurge of such crimes,' for the same was never
intended by said law to be the yardstick to determine the existence of compelling reasons involving heinous crimes.
Fittingly, thus, what R.A. No. 7659 states is that 'the Congress, in the interest of justice, public order and rule of law, and
the need to rationalize and harmonize the penal sanctions for heinous crimes, finds compelling reasons to impose the
death penalty for said crimes.'"[24]

Indeed, today, even members of the Court who originally dissented from the majority ruling sustaining the validity of
Republic Act No. 7659 agree on the imposition of the death penalty without in the least changing their view about the
constitutionality of the penalty.
As we did in People vs. Godoy,[25] we restate mankind's age-old observation and experience on the penological and
societal effect of capital punishment: "If it is justified, it serves as a deterrent; if injudiciously imposed, it generates
resentment."[26]
We now consider the merits of this case.

II. THE CREDIBILITY OF WITNESSES

The question of credibility of witnesses is primarily for the trial court to determine.[27]For this reason, its observations
and conclusions are accorded great respect on appeal. [28] This rule is variously stated thus: The trial court's assessment
of the credibility of a witness is entitled to great weight. It is conclusive and binding unless shown to be tainted with
arbitrariness or unless, through oversight, some fact or circumstance of weight and influence has not been
considered.[29] Absent any showing that the trial judge overlooked, misunderstood, or misapplied some facts or
circumstances of weight which would affect the result of the case, or that the judge acted arbitrarily, his assessment of the
credibility of witnesses deserves high respect by appellate courts. [30]
 In the case at bar, inconsistencies and discrepancies in the testimonies of the two principal prosecution witnesses,
Florencio Villareal and Eric Ona, are alleged as undermining their credibility, to wit:
(1) Florencio testified that on February 9, 1994 at about 9 o'clock in the evening, he and the victim, Richard Buama,
were picked up by Mercado and Eric while he and Richard, in the company of Rex Bugayong, were passing time
near Mercado's house. Eric belied this testimony when, on cross-examination, he said that he and Mercado saw
Florencio first at about 8 o'clock, not 9 o'clock in the evening of February 9, 1994 at the corner of Sto. Tomas Street,
Pasig, one block away from the place where they later found Richard.
(2) Florencio testified that when they were apprehended at the corner of Baltazar Street, Mercado pushed him straight
into the car, and held and poked a gun at Richard. On the other hand, Eric testified that Florencio voluntarily went
with them into the car as Mercado, with a .38 black gun tucked at his side, placed his arm around Richard's shoulder.
(3) In his sworn statement, Florencio stated in answer to Question No.3, "At kami po ay dinala ng pulis na
humuli sa amin doon sa inuupahan niyang bahay at isinakay kami sa kanyang kotse at kami ay dinala sa Tanay,
Rizal. However, in answer to Question No. 6, Eric said "Una kaming dinala sa bahay na inuupahan ni Elpidio
Mercado dito sa Pasig. Eric denied Florencio's statement that they did not stay in Mercado's house; instead, they just
circled the place and then proceeded to Tanay, Rizal right away. Florencio in fact contradicted his own statement at
the trial by declaring that they just passed by Mercado's house and did not stay there.
(4) In his testimony, Florencio said that on their way to Tanay, Rizal, he did not hear conversation between Mercado and
Eric. Yet Eric testified that, upon reaching Rosario, he talked to Mercado and asked him where they were going.
Mercado answered, "Sa Tanay, have you been there?" Mercado even asked them their birthdays and if they still
wanted to have birthdays.
(5) Florencio testified that upon reaching Tanay, Rizal and alighting from the car he was brought inside the apartment
and that when he peeped through the window he saw Mercado slapping Richard on the face. On the contrary, Eric
testified that upon their arrival in Tanay, Rizal, they alighted from the car and were told to go inside the apartment
and it was there where Mercado slapped Richard on the face and asked him to undress.
(6) Florencio further testified that after Richard had taken off his clothes as ordered by Mercado, the latter asked Richard
to lie down, face downward, and thereafter, Richard's feet and hands were tied by Mercado and his aide, Jeff, with a
rattan rope. Eric stated on cross-examination that when Richard was lying down, Mercado stepped on Richard's left
cheek, implying that Richard lay not with his face down but with his right cheek on the ground.
(7) Florencio stated in his sworn statement that upon reaching Tanay, Rizal, they were taken into an apartment opposite
a beerhouse. On the other hand, Eric claimed that the apartment was some 130 to 150 meters away from the
beerhouse.
(8) Florencio stated in his sworn statement that after Richard was beaten up, his hands and feet were tied and then
Mercado and his police companion loaded (sinakay) Richard into the car. Eric, however, testified that Richard was
loaded in the baggage compartment of the car by Acebron and Jeff. On cross-examination, Florencio contradicted
himself by admitting that it was Acebron and Jeff who loaded Richard into the car.
(9) Florencio testified that, although Mercado asked Acebron to get a bolo, the latter got a long knife (not a bolo) with a
"sharp pointed edge" (sic). Eric declared that the bolo taken by Acebron was "mapurol."
(10) Eric testified that on February 12, 1994, he was investigated ahead of Florencio by SPO2 James Mabalot and
insisted that his statement was the truth. He even stated that as he was being investigated, Florencio was around,
talking. However, this testimony was contradicted by SPO2 James Mabalot who declared that it was Florencio who
was first investigated as shown by the fact that Florencio was investigated at 6:20 p.m., while Eric was investigated
at 10:45 p.m. of February 12, 1994.
(11) On cross-examination, Eric testified that while SPO2 Mabalot was investigating him and Florencio, SPO1 Buama
was just outside the office and even saw him. SPO1 Buama confirmed this statement. However, SPO2 Mabalot said
that when he investigated Florencio and Eric, SPO1 Buama was not present having then already left.
(12) SPO1 Buama testified that Richard was his full blood brother, but his sister, Maria Buama, said that Richard was an
adopted child, although they considered him their full blood brother.[31]
Inconsistencies in the testimonies of witnesses which refer only to minor details and collateral matters do not affect
the veracity and weight of their testimonies where there is consistency in relating the principal occurrence and positive
identification of the assailants. Slight contradictions in fact even serve to strengthen the credibility of the witnesses and
prove that their testimonies are not rehearsed. They are thus safeguards against memorized perjury. [32]
Nor are such inconsistencies and even improbabilities unusual, for there is no person with perfect faculties or
senses.[33] An adroit cross-examiner may trap a witness into making statements contradicting his testimony on direct
examination. Intensive cross-examination on points not anticipated by a witness and his lawyer may make a witness blurt
out statements which do not dovetail even with his own testimony. Yet, if it appears that the same witness has not willfully
perverted the truth, as may be gleaned from the tenor of his testimony and the conclusion of the trial judge regarding his
demeanor and behavior on the witness stand, his testimony on material points may be accepted.
A witness' testimony may likewise contradict that of another witness. As long as the contradiction involves minor
details and collateral matters, the credibility of both witnesses will not be deemed impaired. After all, no two witnesses
could testify on a matter from the same point of view or perception. The recollection of different witnesses with respect to
the time, place, and other circumstances of a criminal event would naturally differ in various details. Absolute uniformity in
every detail of testimonies cannot be expected of witnesses who by nature react differently to what they see and hear
depending upon their situation and state of mind.[34] On the contrary , if witnesses should agree on every detail of a
transaction that occupied a considerable space of time and should undertake to tell all that occurred in precisely the same
order, each giving the same incidents as the others in precisely the same words, that fact should make their testimonies
suspect.[35]
Applying these rules to this case, the alleged inconsistencies in the testimonies of Florencio Villareal and Eric Ona
pointed out by appellants concern only minor details which do not detract from the essential points of their testimonies that
accused-appellants, after beating up the victim, took him away in accused-appellant Mercado's car, and, when they
returned to the apartment, both admitted that they had "silenced" the victim or had "laid him to rest."
The alleged inconsistencies between the testimonies of the prosecution witnesses and their affidavits, on the other
hand, refer to minor matters that do not affect the substance of the prosecution's evidence. Affidavits are not entirely
reliable evidence in court due to their incompleteness and the inaccuracies that may have attended their formulation. [36] In
general, such affidavits are not prepared by the affiants themselves but by another person (i.e., investigator) who may
have used his own language in writing the statement or misunderstood the affiant or omitted material facts in the hurry
and impatience that usually attend the preparation of such affidavits. As this Court has often said:

"An affidavit, 'being taken ex-parte, is almost always incomplete and often inaccurate, sometimes from partial suggestion,
and sometimes from want of suggestion and inquiries, without the aid of which the witness may be unable to recall the
connected collateral circumstances necessary for the correction of the first suggestion of his memory and for his accurate
recollection of all that belongs to the subject.'"[37]

"'We have too much experience of the great infirmity of affidavit evidence. When the witness is illiterate and ignorant, the
language presented to the court is not his; it is; and must be, the language of the person who prepares the affidavit; and it
may be, and too often is, the expression of that person's erroneous inference as to the meaning of the language used by
the witness himself; and however carefully the affidavit may be read over to the witness, he may not understand what is
said in a language so different from that which he is accustomed to use. Having expressed his meaning in his own
language, and finding it translated by a person on whom he relies, into language not his own, and which he does not
perfectly understand, he is too apt to acquiesce; and testimony not intended by him is brought before the court as his.' (2
Moore on Facts, sec. 952, p. 1105; People v. Timbang, 74 Phil. 295, 299)."[38]

For this reason, affidavits have generally been considered inferior to testimony given in open court. [39]
Neither is the credibility of prosecution witnesses Florencio Villareal and Eric Ona in any way lessened, much less
impaired, by the motives imputed to them by accused-appellants who claim that the former testified against them on
account of an incident on January 23, 1994 when Mercado slapped Eric and hit Florencio on the back. Accused-
appellants' contention is nothing more than a desperate attempt to discredit said witnesses. It is inconceivable that these
principal prosecution witnesses, two young boys, would impute a crime as heinous as kidnapping with murder to anyone if
the same was not true. Indeed, it would be contrary to the natural order of events and of human nature, and against the
presumption of good faith for Florencio and Eric to falsely testify against accused- appellants.[40] These young boys, in
testifying against accused-appellants, would have nothing to gain and everything to lose, including their lives. Florencio
and Eric knew that, even if accused-appellants were bemedalled military and police officers, they had no compunction at
all in claiming to have killed a number of people. Even granting that such braggadocio was simply meant to frighten these
young boys into silence, it would nonetheless have the same effect on them and would have deterred them from testifying
against accused-appellants had what they testified to been a mere fabrication.

III. SUFFICIENCY OF THE EVIDENCE OF THE PROSECUTION

It is true that no eyewitnesses were presented by the prosecution o testify on the actual killing of Richard Buaman.
But it is settled that a conviction may rest on purely circumstantial evidence, provided the following requisites concur: (a)
there is more than one circumstance; (b) the facts from which the inferences are derived are proven; and (c) the
combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. [41] Thus, in People vs.
 Fulinara,[42] wherein the victim was kidnapped in the evening and the following day his body found in a ravine, this Court
said:

"While the positive identification made by the key witness does not refer to the actual killing of the deceased, the
circumstantial evidence on record constitutes an unbroken chain which leads to a fair and reasonable conclusion that
accused-appellants are indeed guilty of the offense charged. It is not only by direct evidence upon which guilt may be
predicated. The accused may also be convicted on circumstantial evidence."

In this case, the following circumstances, viewed in their entirety, show beyond shadow of a doubt that accused-
appellants are indeed guilty of kidnapping with murder:
(1) Mercado picked up Richard on the night of February 9, 1994 near his (Mercado's) house in Pasig and, poking a gun
at him, forced him to ride with him in his car;
(2) Mercado took Richard to his apartment in Tanay;
(3) Mercado slapped and boxed Richard before bringing him inside the apartment;
(4) Mercado went up the second floor of the apartment and came down with Acebron;
(5) Mercado and Acebron took turns in subjecting Richard to physical abuse;
(6) Mercado ordered his aide named Jeff to get a piece of rope with which to bind Richard and Jeff obliged by getting a
rattan rope;
(7) Richard was gagged and his limbs were bound;
(8) Acebron and Jeff put Richard into the luggage compartment of Mercado's car;
(9) Mercado asked Acebron to get a bolo before they drove away;
(10) Accused-appellants rode together in the car with Richard in its compartment;
(11) After two hours, accused-appellants returned to the apartment without Richard;
(12) When Florencio asked Mercado about Richard's whereabouts, Richard replied, "Wala na, pinatahimik ko
na." ("Gone, I already silenced him").
(13) When Eric asked Mercado the same question, the latter replied, "Wala na, pinagpahinga ko na." (He is gone. I have
laid him to rest").
(14) Eric saw Acebron wiping off bloodstains on the bolo;
(15) At the disco bar, accused-appellants bragged about the fact that Richard was the 25th person and the 17th person
Mercado and Acebron had killed, respectively;
(16) Richard's body was found in a morgue on February 12, 1994;
(17) The victim's body showed signs that his hands and feet had been tied and his mouth stuffed with a towel; and
(18) Mercado warned Eric and Florencio not to talk to anyone regarding the incident.
These circumstances constitute an unbroken chain clearly pointing to accused-appellants' culpability to the crime of
kidnapping with murder.

IV. THE EVIDENCE OF CONSPIRACY

Accused-appellants argue that the trial court erred in finding conspiracy in the commission of the crime because the
prosecution allegedly failed to establish a common resolution between them to commit the crime charged. This argument
is likewise without merit.
Conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and
decide to commit it. To establish the existence of conspiracy, direct proof is not essential, as it may be shown by the
conduct of the accused before, during, and after the commission of the crime.[43] It may be proven by facts and
circumstances from which may logically be inferred the existence of a common design among the accused to commit the
offense charged, or it may be deduced from the mode and manner by which the offense was perpetrated. [44] In this case,
the concatenation of facts and circumstances establish beyond a shadow of a doubt that accused-appellants conspired to
kill Richard, to wit: (1) upon reaching the Tanay apartment, which he shared with Acebron, Mercado went upstairs and
called Acebron; (2) as they came downstairs, Mercado told appellant Acebron that he had a present for him and that they
were going to kill someone, saying "Pare, may regalo ako sa iyo, may papatayin tayo"; (3) Mercado and Acebron slapped
and boxed Richard; (4) when told by Mercado to get a bolo, Acebron did so; (5) Acebron helped in loading Richard into
the car's luggage compartment; (6) Mercado and Acebron left the apartment together in Mercado's car with Richard in the
car's luggage compartment; (7) after two hours, the two came back to the apartment without Richard; (8) when Eric and
Florencio asked them where Richard was, they answered that Richard had been "silenced" or had been "laid to rest"; and
(9) Acebron washed a bloodstained bolo.

V. ACCUSED-APPELLANTS' ALIBI

Invoking alibi as a defense, accused-appellants argue that it was impossible for them to be in Pasig at the time of the
commission of the crime because they were then in Tanay, Rizal on official duty, as members of the PNP force in that
town. For this purpose, they cite the PNP logbook, duly signed by them. However, as the trial court pointed out:

"This defense, however, collapsed with the testimony of SPO4 Bias when he affirmed before the Court that travel time
between Tanay and Pasig could take less than an hour, especially at nighttime. Moreover, the Court finds wanting the
evidence presented by the defense to support its claim that both accused were indeed present at the Tanay PNP
Headquarters until about 8:30 p.m. of February 9, 1994.

"Firstly, it was admitted by the defense that the duty log-book and the morning/evening formation sheet do not always
reflect the whereabouts of the Tanay PNP members for the day such that even when they have deviated from their
regular assignments, no note whatsoever appears on said log-book. Accused were at the Hilltop Headquarters in Taytay
from around 9:15 a.m. to 5 p.m. of February 9, 1994 and yet, the duty log-book they submitted in Court show otherwise. In
said log-book, the Post/Assignment of accused Acebron was "Intel Optvs/follow-up" while accused Mercado was
supposed to be at "Post OP #2." The Court does not believe this log-book is reliable. Secondly, again by the defense' own
admission, Tanay PNP members sign their names once on the log-book and this will be enough to confirm their presence
or attendance for the entire day. Surely, the possibility that all the PNP members do not in fact arrive at and leave their
office at the same time of 8 a.m. and 8 p.m. can not be disregarded. Still, a reading of the entries in the log-book
submitted by the defense would somehow suggest this. The physical impossibility of accused Mercado, at least, being in
Pasig at around 9 p.m. on February 9, 1994 is not established. The defense of alibi is, therefore, rejected by the Court.[45]

Indeed, alibi is generally regarded with suspicion and is always received with caution, not only because it is
inherently weak and unreliable but also because it can be easily fabricated and concocted. For alibi to prosper as a
defense, it must be convincing enough to preclude any doubt on the physical impossibility of the presence of the accused
at the locus criminis or its immediate vicinity at the time of the incident.[46] An accused who invokes the defense of alibi
must prove (a) his presence at another place at the time of the perpetration of the crime and (b) the physical impossibility
for him to be at the scene of the crime.[47]
In this case, even granting that accused-appellants were in Tanay at the time they were supposed to have taken the
two prosecution witnesses and the victim to Pasig, it was still not physically impossible for them to be in that place. Pasig
is only an hour's drive from Tanay and when traffic is light, as it would generally be late in the evening, the distance could
be negotiated in less time. Significantly, when the three young men were taken from Pasig at around 9 o'clock in the
evening, accused-appellants had already been discharged from their duties because, by their own admission, the evening
formation at the Tanay Police Station ended at around 8:30 that evening.
Above all, given Florencio and Eric's clear and positive identification of accused-appellants as the perpetrators of the
crime, the failure of the defense to give any plausible reason for Florencio and Eric to testify falsely against accused-
appellants renders the latter's alibi bereft of any probative value. [48]
Their positive identification by the witnesses prevails over their alibi and denial. [49]

VI. ACCUSED-APPELLANTS' CRIMINAL AND CIVIL LIABILITY

Accused-appellants are guilty of kidnapping because, by placing the victim in an enclosed place consisting of the
luggage compartment of the car, they detained or otherwise deprived him of his liberty. There was also actual restraint of
the victim's liberty when he was taken at gunpoint from Pasig to accused-appellants' apartment in Tanay.[50]The evidence
proves that Mercado initiated the kidnapping of the victim. Acebron's subsequent loading of the victim into the car's
compartment after tying the latter shows community of criminal purpose with Mercado. However, although both were
police officers, they acted in this case in their private capacities. [51]
The crime was committed by accused-appellants on February 9, 1994, after the amendment of the Revised Penal
Code on December 31, 1993 by Republic Act No. 7659. Article 267 of the Revised Penal Code, as thus amended,
provides:
"Kidnapping and serious illegal detention. - Any private individual who shall kidnap or detain another, or in any other
manner deprive him of his liberty, shall suffer the penalty of reclusion perpetua to death:

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

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

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

4. If the person kidnapped or detained shall be a minor, except when the accused is any of the parents, female or a public
officer;

"The penalty shall be death where the kidnapping or detention was committed for the purpose of extorting ransom from
the victim or any other person, even if none of the circumstances above-mentioned were present in the commission of the
offense.

"When the victim is killed or dies as a conseguence of the detention or is raped, or is subjected to torture or dehumanizing
acts, the maximum penalty shall be imposed." (Underscoring supplied)

In People vs. Ramos,[52] the accused was found guilty of two separate heinous crimes of kidnapping for ransom and
murder committed on July 13, 1994 and sentenced to death. On appeal, this Court modified the ruling and found the
accused guilty of the "special complex crime" of kidnapping for ransom with murder under the last paragraph of Article
267, as amended by Republic Act No. 7659. This Court said:

"x x x This amendment introduced in our criminal statutes the concept of 'special complex crime' of kidnapping with
murder or homicide. It effectively eliminated the distinction drawn by the courts between those cases where the killing of
the kidnapped victim was purposely sought by the accused, and those where the killing of the victim was not deliberately
resorted to but was merely an afterthought. Consequently, the rule now is: Where the person kidnapped is killed in the
course of the detention, regardless of whether the killing was purposely sought or was merely an afterthought, the
kidnapping and murder or homicide can no longer be complexed under Art. 48, nor be treated as separate crimes, but
shall be punished as a special complex crime under the last paragraph of Art. 267, as amended by RA No.
7659."(Underscoring supplied)

Thus, in the case at bar, the trial court correctly found accused-appellants guilty of kidnapping with murder and
sentenced each of them to death.
Four (4) members of the Court, although maintaining their adherence to the separate opinions expressed in People
vs. Echegaray[53] that R.A. No. 7659, insofar as it prescribes the penalty of death, is unconstitutional, nevertheless submit
to the ruling of the majority that the law is constitutional and that the death penalty should accordingly be imposed.
It does not matter whether there are circumstances qualifying the killing as murder. Under the last paragraph of
Article 267, it is sufficient that the victim is "killed or dies as a consequence of the detention." In any event, the killing of
Richard Buama as a consequence of his kidnapping was committed under circumstances which make it murder. His limbs
were tied and his mouth gagged before he was taken away. When his body was discovered, his limbs were still tied and
his mouth gagged, indicating that treachery attended the killing of Richard Buama.
The trial court awarded P50,000.00 civil indemnity and P100,000.00 by way of moral and exemplary damages to the
Buama family as heirs of the deceased Richard Buama pursuant to Articles 2206 and 2230 of the Civil Code. It is not
disputed, however, that Richard had not been legally adopted by the Buamas, and so the latter cannot be considered his
heirs, the term "heirs" being limited to the deceased's "spouse, legitimate, and illegitimate ascendants and descendants"
per the definition of "heirs" under Articles 782 and 2206 of the Civil Code. For this reason, in one case, [54] the award of
moral damages for the death of a brother caused by quasi-delict was disallowed. In this case, since the heirs of the
deceased Richard Buama are not known, the awards of civil indemnity and moral and exemplary damages to the Buamas
should be disallowed.
As to the award of P52,680.00 for actual damages incurred for wake and funeral expenses, only the amount
of P22,690.00 is supported by receipts (Exhs. J-2 to J-7). Accused-appellants contend that these receipts constitute
hearsay evidence because the witness who identified them, Lourdes Vergara, admitted that she merely collated the same
but had otherwise no personal knowledge of the facts pertaining to their issuance. [55] In People vs. Paraiso,[56] this Court
disregarded the list of burial expenses for being hearsay since it was prepared by the victim's sister-in-law and not by the
victim's eldest son who testified thereon. The Court held that actual damages should be based upon competent proof and
on the best evidence available.
One receipt (Exh. J-5) for P1,300.00 shows that it was issued by the Immaculate Conception Parish Church in Pasig
to Lourdes Vergara, and it was for Richard Buama's burial mass. Another receipt (Exh. J-7), for the amount of
P2,210.00 for flowers for Richard Buama's wake, was issued by Lourdes Vergara herself as the owner of the flower shop.
These two receipts should be considered competent evidence of the amount of expenses indicated therein, and therefore
the total amount of P3,510.00 should be awarded to Lourdes Vergara as actual damages.

VII. ALLEGED HASTE OF THE TRIAL COURT IN DECIDING THE CASE

One last point. Accused-appellants bewail the fact that the trial court rendered its decision just a day after it had
received their Joint Memorandum.[57] Accused-appellants charge that their case was decided with "fantastic, incredible
and unbelievable speed" with the result that "grave and serious errors" were committed in convicting them.[58]
This contention has no merit. A review of the trial court's decision shows that its findings were based on the records
of this case and the transcripts of stenographic notes taken during the trial. The speed with which the trial court disposed
of the case cannot thus be attributed to the injudicious performance of its function. Indeed, a judge is not supposed to
study a case only after all the pertinent pleadings have been filed. It is a mark of diligence and devotion to duty that a
judge studies a case long before the deadline set for the promulgation of his decision has arrived. The one-day period
between the filing of accused-appellants' memorandum and the promulgation of the decision was sufficient time to
consider their arguments and to incorporate these in the decision. As long as the trial judge does not sacrifice the orderly
administration of justice in favor of a speedy but reckless disposition of a case, he cannot be taken to task for rendering
his decision with due dispatch. The trial court in this case committed no reversible errors and, consequently, except for
some modification, its decision should be affirmed.
WHEREFORE, the decision of the Regional Trial Court, Branch 156, Pasig City, finding accused-appellants Elpidio
Mercado y Hernando and Aurelio Acebron y Adora guilty beyond reasonable doubt of the crime of kidnapping with murder
and imposing upon each of them the DEATH PENALTY, is AFFIRMED with the MODIFICATIONS that the awards of
P50,000.00 as civil indemnity and P100,000.00 as moral and exemplary damages are DELETED and accused-appellants
are ORDERED to pay jointly and severally to Lourdes Vergara the amount of P3,510.00 as reimbursement for the
expenses she incurred for the victim's wake and funeral.
In accordance with Section 25 of Republic Act No. 7659, amending Article 83 of the Revised Penal Code, upon the
finality of this decision, let the records of this case be forthwith forwarded to the Office of the President for his use in case
he decides to exercise his prerogative of mercy.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Pardo, Buena,
Gonzaga-Reyes, Ynares-Santiago, and De Leon, Jr., JJ., concur.