G.R. No.

182941 July 3, 2009

ROBERT SIERRA y CANEDA, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

BRION, J.:

Before us is the petition of Robert Sierra y Caneda (petitioner) for the review
on certiorari1 of the Decision2 and Resolution3 of the Court of Appeals4 (CA)
that affirmed with modification his conviction for the crime of qualified rape
rendered by the Regional Trial Court (RTC), Branch 159, Pasig City, in its
decision of April 5, 2006.

THE ANTECEDENT FACTS

In August 2000, thirteen-year-old AAA5 was playing with her friend BBB in
the second floor of her family’s house in Palatiw, Pasig. The petitioner arrived
holding a knife and told AAA and BBB that he wanted to play with them. The
petitioner then undressed BBB and had sexual intercourse with her.
Afterwards, he turned to AAA, undressed her, and also had sexual
intercourse with her by inserting his male organ into hers. The petitioner
warned AAA not to tell anybody of what they did.

AAA subsequently disclosed the incident to Elena Gallano (her teacher) and
to Dolores Mangantula (the parent of a classmate), who both accompanied
AAA to the barangay office. AAA was later subjected to physical examination
that revealed a laceration on her hymen consistent with her claim of sexual
abuse. On the basis of the complaint and the physical findings, the petitioner
was charged with rape under the following Information:

On or about August 5, 2000, in Pasig City and within the jurisdiction of this
Honorable Court, the accused, a minor, 15 years old, with lewd designs and
by means of force, violence and intimidation, did then and there willfully,
unlawfully and feloniously have sexual intercourse with his (accused) sister,
AAA, thirteen years of age, against the latter’s will and consent.

Contrary to law.6

The petitioner pleaded not guilty to the charge and raised the defenses of
denial and alibi. He claimed that he was selling cigarettes at the time of the
alleged rape. He also claimed that AAA only invented her story because she
bore him a grudge for the beatings he gave her. The parties’ mother (CCC)
supported the petitioner’s story; she also stated that AAA was a
troublemaker. Both CCC and son testified that the petitioner was fifteen (15)
years old when the alleged incident happened.7

The defense also presented BBB who denied that the petitioner raped her;
she confirmed the petitioner’s claim that AAA bore her brother a grudge.

On April 5, 2006, the RTC convicted the petitioner of qualified rape as follows:

WHEREFORE, in view of the foregoing, this Court finds the accused

ROBERT SIERRA y CANEDA GUILTY beyond reasonable doubt of the crime
of rape (Violation of R.A. 8353 in relation to SC A.M. 99-1-13) and hereby
sentences the said juvenile in conflict with law to suffer the penalty of
imprisonment of reclusion perpetua; and to indemnify the victim the amount of
₱75,000 as civil indemnity, ₱50,000 as moral damages, and ₱25,000 as
exemplary damages.

SO ORDERED.8

The petitioner elevated this RTC decision to the CA by attacking AAA’s

credibility. He also invoked paragraph 1, Section 6 of R.A. No. 9344 (Juvenile
Justice and Welfare Act of 2006)9 to exempt him from criminal liability
considering that he was only 15 years old at the time the crime was
committed.

The CA nevertheless affirmed the petitioner’s conviction with modification as

to penalty as follows:

WHEREFORE, finding that the trial court did not err in convicting Robert
Sierra, the assailed Decision is hereby AFFIRMED with MODIFICATION that
Robert Sierra has to suffer the penalty of imprisonment of RECLUSION
TEMPORAL MAXIMUM. The award of damages are likewise affirmed.

SO ORDERED.10

In ruling that the petitioner was not exempt from criminal liability, the CA held:

As to the penalty, We agree with the Office of the Solicitor General that
Robert is not exempt from liability. First, it was not clearly established and
proved by the defense that Robert was 15 years old or below at the time of
the commission of the crime. It was incumbent for the defense to present
Robert’s birth certificate if it was to invoke Section 64 of Republic Act No.
9344. Neither is the suspension of sentence available to Robert as the
Supreme Court, in one case, clarified that:
We note that, in the meantime, Rep. Act No. 9344 took effect on May 20,
2006. Section 38 of the law reads:

SEC. 38. Automatic Suspension of Sentence. – Once the child who is under
eighteen (18) years of age at the time of the commission of the offense is
found guilty of the offense charged, the court shall determine and ascertain
any civil liability which may have resulted from the offense committed.
However, instead of pronouncing the judgment of conviction, the court shall
place the child in conflict with the law under suspended sentence, without
need of application: Provided, however, That suspension of sentence shall
still be applied even if the juvenile is already eighteen (18) years of age or
more at the time of the pronouncement of his/her guilt.

Upon suspension of sentence and after considering the various

circumstances of the child, the court shall impose the appropriate disposition
measures as provided in the Supreme Court on Juveniles in Conflict with the
Law.

The law merely amended Article 192 of P.D. No. 603, as amended by A.M.
No. 02-1-18-SC, in that the suspension of sentence shall be enjoyed by the
juvenile even if he is already 18 years of age or more at the time of the
pronouncement of his/her guilt. The other disqualifications in Article 192 of
P.D. No. 603, as amended, and Section 32 of A.M. No. 02-1-18-SC have not
been deleted from Section 38 of Republic Act No. 9344. Evidently, the
intention of Congress was to maintain the other disqualifications as provided
in Article 192 of P.D. No. 603, as amended, and Section 32 of A.M. No. 02-1-
18-SC. Hence, juveniles who have been convicted of a crime the imposable
penalty for which is reclusion perpetua, life imprisonment or reclusion
perpetua to death or death, are disqualified from having their sentences
suspended.11

The CA denied the petitioner’s subsequent motion for reconsideration; hence,

the present petition.

THE ISSUES

The petitioner no longer assails the prosecution’s evidence on his guilt of the
crime charged; what he now assails is the failure of the CA to apply
paragraph 1, Section 612 of R.A. No. 9344 under the following issues:

(1) Whether or not the CA erred in not applying the provisions of R.A. No.
9344 on the petitioner’s exemption from criminal liability;

(2) Whether or not the CA erred in ruling that it was incumbent for the
defense to present the petitioner’s birth certificate to invoke Section 64 of
R.A. No. 9344 when the burden of proving his age lies with the prosecution
by express provisions of R.A. No. 9344; and

(3) Whether or not the CA erred in applying the ruling in Declarador v. Hon.
Gubaton13 thereby denying the petitioner the benefit of exemption from
criminal liability under R.A. No. 9344.

The threshold issue in this case is the determination of who bears the burden
of proof for purposes of determining exemption from criminal liability based on
the age of the petitioner at the time the crime was committed.

The petitioner posits that the burden of proof should be on the prosecution as
the party who stands to lose the case if no evidence is presented to show that
the petitioner was not a 15-year old minor entitled to the exempting benefit
provided under Section 6 of R.A. No. 9344.14 He additionally claims that
Sections 3,15 7,16 and 6817 of the law also provide a presumption of
minority in favor of a child in conflict with the law, so that any doubt regarding
his age should be resolved in his favor.

The petitioner further submits that the undisputed facts and evidence on
record – specifically: the allegation of the Information, the testimonies of the
petitioner and CCC that the prosecution never objected to, and the findings of
the RTC – established that he was not more than 15 years old at the time of
the commission of the crime.

The People’s Comment, through the Office of the Solicitor General (OSG),
counters that the burden belongs to the petitioner who should have presented
his birth certificate or other documentary evidence proving that his age was
15 years or below. The OSG also stressed that while petitioner is presumed
to be a minor, he is disqualified to have his sentence suspended following the
ruling in Declarador v. Hon. Gubaton.18

THE COURT’S RULING

We grant the petition.

We examine at the outset the prosecution’s evidence and the findings of the
lower courts on the petitioner’s guilt, since the petition opens the whole case
for review and the issues before us are predicated on the petitioner’s guilt of
the crime charged. A determination of guilt is likewise relevant under the
terms of R.A. No. 9344 since its exempting effect is only on the criminal, not
on the civil, liability.

We see no compelling reason, after examination of the CA decision and the

records of the case, to deviate from the lower courts’ findings of guilt. The
records show that the prosecution established all the elements of the crime
charged through the credible testimony of AAA and the other corroborating
evidence; sexual intercourse did indeed take place as the information
charged.19 As against AAA’s testimony, the petitioner could only raise the
defenses of denial and alibi – defenses that, in a long line of cases, we have
held to be inherently weak unless supported by clear and convincing
evidence; the petitioner failed to present this required evidentiary support.20
We have held, too, that as negative defenses, denial and alibi cannot prevail
over the credible and positive testimony of the complainant.21 We sustain the
lower courts on the issue of credibility, as we see no compelling reason to
doubt the validity of their conclusions in this regard.

While the defense, on appeal, raises a new ground – i.e., exemption from
criminal liability under R.A. No. 9344 – that implies an admission of guilt, this
consideration in no way swayed the conclusion we made above, as the
defense is entitled to present all alternative defenses available to it, even
inconsistent ones. We note, too, that the defense’s claim of exemption from
liability was made for the first time in its appeal to the CA. While this may
initially imply an essential change of theory that is usually disallowed on
appeal for reasons of fairness, 22 no essential change is really involved as
the claim for exemption from liability is not incompatible with the evidence
submitted below and with the lower courts’ conclusion that the petitioner is
guilty of the crime charged. An exempting circumstance, by its nature, admits
that criminal and civil liabilities exist, but the accused is freed from criminal
liability; in other words, the accused committed a crime, but he cannot be held
criminally liable therefor because of an exemption granted by law. In
admitting this type of defense on appeal, we are not unmindful, too, that the
appeal of a criminal case (even one made under Rule 45) opens the whole
case for review, even on questions that the parties did not raise.23 By
mandate of the Constitution, no less, we are bound to look into every
circumstance and resolve every doubt in favor of the accused.24 It is with
these considerations in mind and in obedience to the direct and more specific
commands of R.A. No. 9344 on how the cases of children in conflict with the
law should be handled that we rule in this Rule 45 petition.

We find a review of the facts of the present case and of the applicable law on
exemption from liability compelling because of the patent errors the CA
committed in these regards. Specifically, the CA’s findings of fact on the
issues of age and minority, premised on the supposed absence of evidence,
are contradicted by the evidence on record; it also manifestly overlooked
certain relevant facts not disputed by the parties that, if properly considered,
would justify a different conclusion.25

In tackling the issues of age and minority, we stress at the outset that the
ages of both the petitioner and the complaining victim are material and are at
issue. The age of the petitioner is critical for purposes of his entitlement to
exemption from criminal liability under R.A. No. 9344, while the age of the
latter is material in characterizing the crime committed and in considering the
resulting civil liability that R.A. No. 9344 does not remove.

Minority as an Exempting Circumstance

R.A. No. 9344 was enacted into law on April 28, 2006 and took effect on May
20, 2006. Its intent is to promote and protect the rights of a child in conflict
with the law or a child at risk by providing a system that would ensure that
children are dealt with in a manner appropriate to their well-being through a
variety of disposition measures such as care, guidance and supervision
orders, counseling, probation, foster care, education and vocational training
programs and other alternatives to institutional care.26 More importantly in
the context of this case, this law modifies as well the minimum age limit of
criminal irresponsibility for minor offenders; it changed what paragraphs 2 and
3 of Article 12 of the Revised Penal Code (RPC), as amended, previously
provided – i.e., from "under nine years of age" and "above nine years of age
and under fifteen" (who acted without discernment) – to "fifteen years old or
under" and "above fifteen but below 18" (who acted without discernment) in
determining exemption from criminal liability. In providing exemption, the new
law – as the old paragraphs 2 and 3, Article 12 of the RPC did – presumes
that the minor offenders completely lack the intelligence to distinguish right
from wrong, so that their acts are deemed involuntary ones for which they
cannot be held accountable.27 The current law also drew its changes
from the principle of restorative justice that it espouses; it considers the
ages 9 to 15 years as formative years and gives minors of these ages a
chance to right their wrong through diversion and intervention
measures.28

In the present case, the petitioner claims total exemption from criminal liability
because he was not more than 15 years old at the time the rape took place.
The CA disbelieved this claim for the petitioner’s failure to present his birth
certificate as required by Section 64 of R.A. No. 9344.29 The CA also found
him disqualified to avail of a suspension of sentence because the imposable
penalty for the crime of rape is reclusion perpetua to death.

Burden of Proof

Burden of proof, under Section 1, Rule 131 of the Rules on Evidence, refers
to the duty of a party to present evidence on the facts in issue in order to
establish his or her claim or defense. In a criminal case, the burden of proof
to establish the guilt of the accused falls upon the prosecution which has the
duty to prove all the essential ingredients of the crime. The prosecution
completes its case as soon as it has presented the evidence it believes is
sufficient to prove the required elements. At this point, the burden of evidence
shifts to the defense to disprove what the prosecution has shown by
evidence, or to prove by evidence the circumstances showing that the
accused did not commit the crime charged or cannot otherwise be held liable
therefor. In the present case, the prosecution completed its evidence and had
done everything that the law requires it to do. The burden of evidence has
now shifted to the defense which now claims, by an affirmative defense, that
the accused, even if guilty, should be exempt from criminal liability because of
his age when he committed the crime. The defense, therefore, not the
prosecution, has the burden of showing by evidence that the petitioner was
15 years old or less when he committed the rape charged.30

This conclusion can also be reached by considering that minority and age are
not elements of the crime of rape; the prosecution therefore has no duty to
prove these circumstances. To impose the burden of proof on the prosecution
would make minority and age integral elements of the crime when clearly they
are not. 31 If the prosecution has a burden related to age, this burden relates
to proof of the age of the victim as a circumstance that qualifies the crime of
rape.32

Testimonial Evidence is Competent Evidence

to Prove the Accused’s Minority and Age

The CA seriously erred when it rejected testimonial evidence showing that the
petitioner was only 15 years old at the time he committed the crime. Section 7
of R.A. No. 9344 expressly states how the age of a child in conflict with the
law may be determined:

SEC. 7. Determination of Age. - x x x The age of a child may be determined

from the child's birth certificate, baptismal certificate or any other pertinent
documents. In the absence of these documents, age may be based on
information from the child himself/herself, testimonies of other persons, the
physical appearance of the child and other relevant evidence. In case of
doubt as to the age of the child, it shall be resolved in his/her favor.
[Emphasis supplied]

Rule 30-A of the Rules and Regulations Implementing R.A. No. 9344
provides the implementing details of this provision by enumerating the
measures that may be undertaken by a law enforcement officer to ascertain
the child’s age:

(1) Obtain documents that show proof of the child’s age, such as

(a) Child’s birth certificate;

(b) Child’s baptismal certificate ;or

(c) Any other pertinent documents such as but not limited to the child’s school
records, dental records, or travel papers.

(2) x x x

(3) When the above documents cannot be obtained or pending receipt of

such documents, the law enforcement officer shall exhaust other measures to
determine age by:

(a) Interviewing the child and obtaining information that indicate age (e.g.
date of birthday, grade level in school);

(b) Interviewing persons who may have knowledge that indicate[s] age of the
child (e.g. relatives, neighbors, teachers, classmates);

(c) Evaluating the physical appearance (e.g. height, built) of the child; and

(d) Obtaining other relevant evidence of age.

xxx

Section 7, R.A. No. 9344, while a relatively new law (having been passed
only in 2006), does not depart from the jurisprudence existing at that time on
the evidence that may be admitted as satisfactory proof of the accused’s
minority and age.

In the 1903 case of U.S. v. Bergantino,33 we accepted testimonial evidence

to prove the minority and age of the accused in the absence of any document
or other satisfactory evidence showing the date of birth. This was followed by
U.S. v. Roxas34 where the defendant’s statement about his age was
considered sufficient, even without corroborative evidence, to establish that
he was a minor of 16 years at the time he committed the offense charged.
Subsequently, in People v. Tismo,35 the Court appreciated the minority and
age of the accused on the basis of his claim that he was 17 years old at the
time of the commission of the offense in the absence of any contradictory
evidence or objection on the part of the prosecution. Then, in People v.
Villagracia,36 we found the testimony of the accused that he was less than 15
years old sufficient to establish his minority. We reiterated these dicta in the
cases of People v. Morial37 and David v. Court of Appeals,38 and ruled that
the allegations of minority and age by the accused will be accepted as facts
upon the prosecution’s failure to disprove the claim by contrary evidence.
In these cases, we gave evidentiary weight to testimonial evidence on the
accused’s minority and age upon the concurrence of the following conditions:
(1) the absence of any other satisfactory evidence such as the birth
certificate, baptismal certificate, or similar documents that would prove the
date of birth of the accused; (2) the presence of testimony from accused
and/or a relative on the age and minority of the accused at the time of the
complained incident without any objection on the part of the prosecution; and
(3) lack of any contrary evidence showing that the accused’s and/or his
relatives’ testimonies are untrue.

All these conditions are present in this case. First, the petitioner and CCC
both testified regarding his minority and age when the rape was committed.39
Second, the records before us show that these pieces of testimonial evidence
were never objected to by the prosecution. And lastly, the prosecution did not
present any contrary evidence to prove that the petitioner was above 15
years old when the crime was committed.

We also stress that the last paragraph of Section 7 of R.A. No. 9344 provides
that any doubt on the age of the child must be resolved in his favor.40 Hence,
any doubt in this case regarding the petitioner’s age at the time he committed
the rape should be resolved in his favor. In other words, the testimony that
the petitioner as 15 years old when the crime took place should be read to
mean that he was not more than 15 years old as this is the more favorable
reading that R.A. No. 9344 directs.

Given the express mandate of R.A. No. 9344, its implementing rules, and
established jurisprudence in accord with the latest statutory developments,
the CA therefore cannot but be in error in not appreciating and giving
evidentiary value to the petitioner’s and CCC’s testimonies relating to the
former’s age.

Retroactive Application of R.A. No. 9344

That the petitioner committed the rape before R.A. No. 9344 took effect and
that he is no longer a minor (he was already 20 years old when he took the
stand) will not bar him from enjoying the benefit of total exemption that
Section 6 of R.A. No. 9344 grants.41 As we explained in discussing Sections
64 and 68 of R.A. No. 934442 in the recent case of Ortega v. People:43

Section 64 of the law categorically provides that cases of children 15 years

old and below, at the time of the commission of the crime, shall immediately
be dismissed and the child shall be referred to the appropriate local social
welfare and development officers (LSWDO). What is controlling, therefore,
with respect to the exemption from criminal liability of the CICL, is not the
CICL’s age at the time of the promulgation of judgment but the CICL’s age at
the time of the commission of the offense. In short, by virtue of R.A. No. 9344,
the age of criminal irresponsibility has been raised from 9 to 15 years old.
[Emphasis supplied]

The retroactive application of R.A. No. 9344 is also justified under Article 22
of the RPC, as amended, which provides that penal laws are to be given
retroactive effect insofar as they favor the accused who is not found to be a
habitual criminal. Nothing in the records of this case indicates that the
petitioner is a habitual criminal.

Civil Liability

The last paragraph of Section 6 of R.A. No. 9344 provides that the accused
shall continue to be civilly liable despite his exemption from criminal liability;
hence, the petitioner is civilly liable to AAA despite his exemption from
criminal liability. The extent of his civil liability depends on the crime he would
have been liable for had he not been found to be exempt from criminal
liability.

The RTC and CA found, based on item (1) of Article 266-B of the RPC, as
amended, that the petitioner is guilty of qualified rape because of his
relationship with AAA within the second civil degree of consanguinity and the
latter’s minority.44 Both courts accordingly imposed the civil liability
corresponding to qualified rape.

The relationship between the petitioner and AAA, as siblings, does not
appear to be a disputed matter. Their mother, CCC, declared in her testimony
that AAA and the petitioner are her children. The prosecution and the defense
likewise stipulated in the proceedings below that the relationship exists. We
find, however, that AAA’s minority, though alleged in the Information, had not
been sufficiently proven.45 People v. Pruna46 laid down these guidelines in
appreciating the age of the complainant:

In order to remove any confusion that may be engendered by the foregoing

cases, we hereby set the following guidelines in appreciating age, either as
an element of the crime or as a qualifying circumstance.

1. The best evidence to prove the age of the offended party is an original or
certified true copy of the certificate of live birth of such party.

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

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

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

proved is that she is less than 7 years old;

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

proved is that she is less than 12 years old;

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

proved is that she is less than 18 years old.

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

testimony of the victim’s mother or relatives concerning the victim’s age, the
complainant’s testimony will suffice provided that it is expressly and clearly
admitted by the accused.

5. It is the prosecution that has the burden of proving the age of the offended
party. The failure of the accused to object to the testimonial evidence
regarding age shall not be taken against him. [Emphasis supplied]

The records fail to show any evidence proving the age of AAA. They do not
likewise show that the petitioner ever expressly and clearly admitted AAA’s
age at the time of the rape. Pursuant to Pruna, neither can his failure to object
to AAA’s testimony be taken against him.

Thus, the required concurrence of circumstances that would upgrade the

crime to qualified rape – i.e., relationship within the third degree of
consanguinity and minority of the victim – does not exist. The crime for which
the petitioner should have been found criminally liable should therefore only
be simple rape pursuant to par. 1, Article 266-A of the RPC, not qualified
rape. The civil liability that can be imposed on the petitioner follows the
characterization of the crime and the attendant circumstances.

Accordingly, we uphold the grant of moral damages of ₱50,000.00 but

increase the awarded exemplary damages ₱30,000.00, both pursuant to
prevailing jurisprudence.47 Moral damages are automatically awarded to
rape victims without the necessity of proof; the law assumes that the victim
suffered moral injuries entitling her to this award.48 Article 2230 of the Civil
Code justifies the award of exemplary damages because of the presence of
the aggravating circumstances of relationship between AAA and petitioner
and dwelling.49 As discussed above, the relationship (between the parties) is
not disputed. We appreciate dwelling as an aggravating circumstance based
on AAA’s testimony that the rape was committed in their house.50 While
dwelling as an aggravating circumstance was not alleged in the Information,
established jurisprudence holds that it may nevertheless be appreciated as
basis for the award of exemplary damages.51lavvphi1

We modify the awarded civil indemnity of ₱75,000.00 to ₱50,000.00, the

latter being the civil indemnity appropriate for simple rape52 on the finding
that rape had been committed.53

In light of the above discussion and our conclusions, we see no need to

discuss the petition’s third assignment of error.

WHEREFORE, premises considered, the instant petition is GRANTED. The

Decision dated February 29, 2008 and Resolution dated May 22, 2008 of the
Court of Appeals in CA-G.R.-CR.-H.C. No. 02218 are REVERSED and SET
ASIDE.

Pursuant to Section 64 of R.A. No. 9344, Criminal Case No. 120292-H for
rape filed against petitioner Robert Sierra y Caneda is hereby DISMISSED.
Petitioner is REFERRED to the appropriate local social welfare and
development officer who shall proceed in accordance with the provisions of
R.A. No. 9344. Petitioner is ORDERED to pay the victim, AAA, ₱50,000.00 as
civil indemnity, ₱50,000.00 as moral damages, and ₱30,000.00 as exemplary
damages.

Unless there are other valid causes for petitioner’s continued detention, we
hereby ORDER his IMMEDIATE RELEASE under the above terms.

Let a copy of this Decision be furnished the Director of the Bureau of

Corrections in Muntinlupa City for its immediate implementation. The Director
of the Bureau of Corrections is directed to report to this Court within five days
from receipt of this Decision the action he has taken.

Let a copy of this Decision be likewise furnished the Juvenile Justice and
Welfare Council.

SO ORDERED.
G.R. No. 112429-30 July 23, 1997

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
MICHAEL NUÑEZ y SEVILLA, accused.

RODOLFO CAYETANO y PANGILINAN, accused-appellant.

ROMERO, J.:

Stealing with intent to gain, from being a simple, uncomplicated act in times
past, albeit unlawful, has evolved into more elaborate schemes guaranteed to
filch money from a person with the least risk of being caught on the part of the
felon.

Those with grandiose designs of victimizing the wealthy have, with alarming
frequency, resorted to kidnapping, snatching not only their intended victims,
but the families of the latter, as well. Within the past few years, so steep has
been the incidence in the crime of kidnapping for ransom that on December
31, 1993, Republic Act No. 7659 went into effect, categorizing the same as a
heinous crime punishable by death.1

In the instant case which occurred before said law was passed, two high
school lads were duped by the accused into going with him. One was to be
used for purposes of extricating ransom from his businessman father. But the
other, the son of impecunious parents, was subsequently bound hands and
feet, gagged and drowned in a river like a rat, with absolutely no chance of
survival.

The facts of this shocking case are as follows:

Accused-appellant Rodolfo Cayetano, together with his co-accused Michael

Nuñez (Nuñez) and Ismael Santos alias "Ka Tony," were charged with the
crimes of Kidnapping for Ransom (Criminal Case No. 12778-MN)2 and
Kidnapping with Murder (Criminal Case No. 12779-MN).3 Only accused-
appellant and Nuñez were convicted and accordingly sentenced to reclusion
perpetua and to pay damages. Accused Santos remains at large.

The prosecution was able to establish that at around 1:15 in the afternoon of
January 21, 1993 inside the compound of Immaculate Concepcion Parochial
School, accused Nuñez persuaded the victim, fourteen-year old high school
student Joseph Rivera, to go with him on the pretext that he would turn over
the proceeds of the sale of a gun to the latter's father. He was likewise able to
persuade Joseph Rivera to bring along the latter's classmate, another
fourteen year-old student Neil Patrick Quillosa on the pretext that Neil would
be Joseph's companion in going home later.

The two boys were brought to a nipa hut in the middle of a fishpond in
Dampalit, Malabon to await a certain "Ka Tony." As the two boys attempted to
go home, they were told to go back as "Ka Tony" was coming. When they
were asked in jest about their preference if they were to be killed either with a
knife of with a gun, Neil answered that he would prefer a gun pointed at his
head.

Thereafter, accused Nuñez told them that "Ka Tony" would not enter the hut
unless they were blindfolded and tied. They protested but were assured by
accused Nuñez that they would not be harmed. Both victims' hands and feet
were tied with wire and rope.

Accused-appellant came and checked if the two victims were tied securely,
after which, accused Nuñez played a tape demanding three million pesos in
five hundred and one thousand peso bills from the parents of Rivera in
exchange for his release. Rivera was likewise made to record his own voice
pleading to his parents to pay the ransom demanded. Thereafter, accused
Nuñez, who was then in possession of a gun, fired the same towards the
window, hitting the casette recorder.

The victims were then brought to the river by accused and accused-appellant.
Accused Nuñez dragged Neil by the neck towards the middle of the river and
left him there to drown while accused-appellant stood guard over Rivera.
Quillosa's cries for help and Rivera's pleas for their captors to save Quillosa
went unheeded.

In the nipa hut, Rivera was made to record his own voice saying, "Mommy,
Daddy, para makilala ninyo na sanay silang pumatay, pinatay na nila si Neil."
Thereafter, he managed to untie his feet and asked accused-appellant to
remove the wire around his hands on the assurance that he would not
escape. The following morning, accused Nuñez went to deliver the tape to
Rivera's house.

While accused-appellant was busy cutting grass near the river, Rivera
escaped the proceeded to the house of accused Nuñez where he called up
his grandmother. Thereupon, he was fetched by his grandmother and with his
father, they proceeded to the Malabon Police Station and reported the
kidnapping. The policemen who responded recovered the casette recorder
from the nipa hut but failed to find both accused and accused-appellant.
Neil Patrick Quillosa's body was recovered on January 23, 1993 at
Chungkang Rivera, Malabon with both hands and feet still bound with wires
and his mouth gagged. Dr. Juanito Sacdalan testified that the cause of death
was asphyxia due to strangulation and that the wire tied around the hands of
the victim was the same wire tied around the neck.

Accused-appellant, however, denied the accusation against him claiming that

on the day he arrived at the nipa hut, accused Nuñez poked a gun at him and
threatened to kill him if he squeals. He also claimed that accused Nuñez
recorded something on a casette and he saw two children with him whose
hands and feet were tied with wires. Thereafter, accused Nuñez instructed
one of the children, whom he came to know during the trial of this case to be
Joseph Rivera, to record something which he did not hear as accused Nuñez
ordered him to keep his distance. He averred that when Nuñez brought the
children to the river, he was just watching and following them; that from his
position atop the paddy, he saw accused Nuñez in the middle of the river
release one of the children, whom he came to know during the trial to be Neil
Patrick Quillosa, as a result of which the latter drowned.

The following morning, accused Nuñez told him to guard Rivera after which
the former left. However, he claimed that he left Rivera inside the nipa hut to
cut grass around the fishpond. When accused Nuñez returned and learned
from him that Rivera had left, the former likewise disappeared. Moments later,
accused Nuñez' father arrived and told him that he would get the casette. He
was likewise told to leave as policemen will be coming. As a result, he left
and went to his grandmother's place, after which he was surrendered by his
uncle to Vice President Joseph Estrada. He likewise claims that he does not
know how to read and that he can write only his name and count up to fifty
only. He claims to know Michael Nuñez as he usually sees him when he buys
"Kakanin" from the latter's family.

The lower court in a joint decision4 convicted both accused and accused-
appellant with Kidnapping for Ransom and accordingly sentenced both to
reclusion perpetua. Both were also found to have committed the complex
crime of Kidnapping with Murder and sentenced each of them to suffer the
penalty of reclusion perpetua. They were also ordered to indemnify the heirs
of the victims in the amount of P50,000.00, to pay actual damages in the
amount of P41,700.00 and the sum of P50,000.00 as moral damages, as well
as the costs of the suit.

Hence, this appeal. Accused-appellant claims that the lower court erred:

1. In not finding that accused-appellant's low level of intelligence/state of

imbecility exempts him from any criminal liability.
2. In not finding that the records of the case are not sufficient to hold a finding
of conspiracy against the accused-appellant.

3. In not acquitting the accused by reason of an exempting circumstance of

uncontrollable fear of an equal or greater injury.

In the first submission of error, accused-appellant claims that he possesses a

very low level of intelligence as revealed in his direct testimony and cross-
examination, indicating a mental age of between six (6) to ten (10) years of
age. To prove his imbecility, he cited his act of cutting grass when he should
be guarding his victim. As such, he should be exempted from criminal liability
under the Revised Penal Code. Even assuming that he is liable, the lower
court should have proceeded against him pursuant to the Child and Youth
Welfare Code.

In his second submission, accused-appellant declares that he could not have

conspired with accused Nuñez for the following reasons: (1) accused-
appellant would rather cut grass than guard his victim, as indicative of his low
mental age; (2) the act of kidnapping itself was already executed and
perfected by accused Nuñez when the accused-appellant arrived in the nipa
hut several hours after the kidnapping; (3) the testimonies of private
complainant Joseph Rivera and the accused-appellant were consistent with
the fact that accused-appellant was nowhere near accused Nuñez when he
was recording the alleged demand for payment.

In his third submission, accused-appellant testified that accused Nuñez poked

a gun at him and threatened him with death; so he had no alternative but to
follow the orders of accused Nuñez, especially considering his mental
capacity.

The Court is not persuaded by such remonstrations. The defense counsel's

attribution of imbecility is not supported by evidence. Imbecility, one of the
exempting circumstances under Article 12 of the Revised Penal Code, is
defined as feeblemindedness or a mental condition approaching that of one
who is insane. It is analogous to childishness and dotage. An imbecile, within
the meaning of Article 12, is one who must be deprived completely of reason
or discernment and freedom of will at the time of committing the crime.5 He is
one who, while advanced in age, has a mental development comparable to
that of children between two and seven years of age.6

Accused-appellant's act of cutting grass rather than guarding his victim could
hardly be indicative of imbecility. Rather, it may be considered as negligence
but definitely not childishness or even that of one completely deprived of
reason or discernment and freedom of the will. In fact, accused-appellant
admitted on cross-examination that he can tell what is right and what is
wrong.7 Assuming arguendo that accused-appellant is an imbecile or a
feebleminded person, in the case of People v. Formigones,8 it was held that
feeblemindedness is not exempting, because the offender could distinguish
right from wrong. An imbecile or an insane cannot. In any case, Article 800 of
the Civil Code provides that "the law presumes that every person is of sound
mind, in the absence of proof to the contrary." The allegation of insanity or
imbecility must be clearly proved. Moreover, the law presumes all acts to be
voluntary. It is improper to presume that acts were executed unconsciously.9

Neither will this Court subscribe to accused-appellant's third submission that

he was prompted to act the way he did due to uncontrollable fear of an equal
or greater injury. Accused-appellant's claim that accused Nuñez poked a gun
at him and threatened him with death is belied by testimonial evidence.
Granting that accused-appellant was forced to do what he did on account of
fear, duress or intimidation such that he could not possibly have any
opportunity to defend himself in equal combat, testimonial evidence show that
he had at least four opportunities to escape. The first was when accused
Nuñez allegedly brought the two victims to the river while he remained on the
rice paddy. 10 The second was when accused Nuñez and the victim Joseph
Rivera were sleeping in the nipa hut. 11 The third was when accused Nuñez
asked him to look for the necklace of Neil Patrick Quillosa on the river bank
while the former was in the nipa hut together with the victim Joseph Rivera.
12 The fourth was when accused Nuñez left him and the victim the following
morning to deliver the taped or recorded ransom demand to the victim's
family. 13 Accused-appellant could have easily taken advantage of any of
these opportunities considering that only accused Nuñez threatened him. By
not availing of these chances to escape, his allegation of fear or duress
becomes incredible under the circumstances.

In People v. Villanueva, 14 this Court stated that:

Duress, force, fear or intimidation to be available as a defense, must be

present, imminent and impending, and of such a nature as to induce a well-
grounded apprehension of death or serious bodily harm if the act is not done.
A threat of future injury is not enough. (16 C.J., 91).

To be available as a defense, the fear must be well-founded, an immediate

and actual danger of death or great bodily harm must be present and the
compulsion must be of such a character as to leave no opportunity to
accused for escape or self-defense in equal combat. It would be a most
dangerous rule if a defendant could shield himself form prosecution for crime
by merely setting up a fear from or because of a threat of a third person.
(Wharton's Criminal Law, Vol. 1, Sec. 384).
Fear as an excuse for crime has never been received by the law. No man,
from fear or circumstances to himself has the right to make himself a party to
committing mischief upon mankind. (Lord Denman in Reg. vs. Tyler, 8 Car.
and P. [Eng.] 616, vs. Duddely, L.R. 14, Q.B. Div. [Eng.] 273).

Accused-appellant's knowledge of what is right or wrong, as well as his failure

to escape bolsters the prosecution's evidence that he conspired with accused
Nuñez to commit the crimes being charged against them, contrary to the
former's second submission. The records show the presence of conspiracy.
First, when accused-appellant arrived at the hut where the victims were being
held, the first thing he did was to check if the victims were securely tied. 15
Second, accused-appellant carried the victim Neil Patrick Quillosa to the river.
16 Third, accused-appellant kicked the victim Joseph Rivera when the latter
was ordered to go to the river. 17 It may be deduced from those acts by
accused-appellant that he conspired with accused Nuñez to commit the
crimes. While it is true that a finding of criminal conspiracy must be supported
by evidence constituting proof beyond reasonable doubt, it is equally true that
such evidence need not be direct evidence. It may be deduced from the
mode and manner in which the offense was perpetrated. The conditions
attending its commission and the acts executed may be indicative of the
common design to accomplish a criminal purpose and objective. If there is a
chain of circumstances to that effect, then, conspiracy has been established.
18

To exempt himself from criminal liability, the conspirator must have performed
an overt act to dissociate or detach himself from the unlawful plan to commit
the felony. 19 Nowhere in the records does it show that accused-appellant
ever did anything to dissuade accused Nuñez from killing Neil Patrick
Quillosa or to escape in order to report the crime despite at least four
opportunities to do so.

This Court fully agrees with the lower court that Kidnapping for Ransom was
committed against Joseph Rivera, as the essential element that the victim
must have been restrained or deprived of his liberty was present when
both victims were tied and when the gun was brandished and fired to
intimidate them. 20 In addition, accused Nuñez and accused-appellant
recorded a ransom demand with the intention of sending it to Rivera's
parents. 21 The records indicate that accused Nuñez accused-appellant
intended to detain only Rivera and hold him for ransom as he was the son of
a gasoline owner having a net income of P24,000.00 a month and owning
several properties. 22

The same, however, cannot be said of Neil Patrick Quillosa. The records
show that the intent of accused Nuñez and that of accused-appellant was to
kill Quillosa and not to detain him for ransom. Quillosa was a stranger to them
and they merely persuaded Rivera to take him along so he could have a
companion in going home. 23 In any case, they could not have possibly
intended to detain Quillosa and hold him for ransom as he was only a son of
a jeepney driver. 24

Thus, the crime committed by accused Nuñez and accused-appellant with

respect to the victim Quillosa should be Homicide and not kidnapping with
Murder since they never intended to hold Quillosa for ransom. Nuñez' query
as to Quillosa's preference on the manner of his death shows the formers'
intention to kill the latter. As treachery was not alleged in the information, then
it could not have qualified the crime to murder.

However, treachery should be appreciated as a generic aggravating

circumstance. Article 14, Paragraph 16 of the Revised Penal Code states that
there is treachery when the offender commits any of the crimes against the
person, employing means, methods, or forms in the execution thereof which
tend directly and specially to insure its execution, without risk to himself
arising from the defense which the offended party might make. In the instant
case, treachery was evident when the accused Nuñez led the victims to
believe that it was necessary for them to be blindfolded and tied first with
wires and a rope before a certain Ka Tony would agree to meet them. Having
thus placed the victims, particularly Quillosa, in a helpless condition, accused
Nuñez and accused-appellant were able to carry out with ease their common
design to kill Quillosa without any risk to themselves arising from any struggle
the boy might make.

Craft should also be appreciated as aggravating the crime of homicide since it

was shown that the victims, particularly the unsuspecting Quillosa, were lured
by the accused into coming with them on the pretext that the former would
only accompany Rivera to accept the proceeds of the sale of a gun.

With respect to accused-appellant, the mitigating circumstance of voluntary

surrender should be appreciated in his favor.

WHEREFORE, in Criminal Case No. 12778-MN, the decision of the trial court
is AFFIRMED. In Criminal Case No. 12779-MN, the decision of the trial court
is MODIFIED in that accused-appellant Rodolfo Cayetano y Pangilinan is
CONVICTED of the crime of homicide and IMPOSING upon him the prison
term ranging from 10 years and 1 day to 12 years, prision mayor maximum,
as minimum up to 18 years, 6 months and 1 day of reclusion temporal
maximum, as maximum.

Costs against accused-appellant.

SO ORDERED.
G.R. No. L-52688 October 17, 1980

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
HONORATO AMBAL, accused-appellant.

AQUINO, J.:

Honorato Ambal appealed from the decision of the Court of First Instance of
Camiguin convicting him of parricide, sentencing him to reclusion perpetua
and ordering him to pay an indemnity of twelve thousand pesos to the heirs of
his deceased wife, Felicula Vicente-Ambal (Criminal Case No. 155-C).

In the morning of January 20, 1977, the barangay captain found under some
flowering plants near the house of Honorato Ambal located in Barrio
Balbagon, Mambajao, Camiguin, Felicula Vicente-Ambal, 48, mortally
wounded. She asked for drinking water and medical assistance.

She sustained seven incised wounds in different parts of her body. She was
placed in an improvised hammock and brought to the hospital where she died
forty minutes after arrival thereat (Exh. B and G).

On that same morning, Honorato Ambal, husband of Felicula, after entrusting

his child to a neighbor, went to the house of the barangay captain and
informed the latter's spouse that he (Honorato) had killed his wife Feling.
After making that oral confession, Ambal took a pedicab, went to the
municipal hall and surrendered to a policeman, also confessing to the latter
that he had liquidated his wife.

The policeman confiscated Ambal's long bolo, the tip of which was broken
(Exh. F). Ambal was bespattered with blood. His shirt was torn. He appeared
to be weak.

The killing was the climax of a fifteen-year-old marriage featured by quarrels

and bickerings which were exacerbated by the fact that the wife sometimes
did not stay in the conjugal abode and chose to spend the night in the
poblacion of Mambajao. The couple had eight children.

The immediate provocation for the assault was a quarrel induced by

Felicula's failure to buy medicine for Ambal who was afflicted with influenza.
The two engaged in a heated alteration. Felicula told her husband that it
would be better if he were dead ("Mas maayo ka pang mamatay"). That
remark infuriated Ambal and impelled him to attack his wife (Exh. 1).
On January 27, 1977, a police lieutenant charged Ambal with parricide in the
municipal court. After a preliminary examination, the case was elevated to the
Court of First Instance where on March 4, 1977 the fiscal filed against Ambal
an information for parricide. At the arraignment, Ambal, assisted by counsel
de oficio, pleaded not guilty.

After the prosecution had presented its evidence, accused's counsel de oficio
manifested that the defense of Ambal was insanity.

The trial court in its order of September 15, 1977 directed the municipal
health officer, Doctor Maximino R. Balbas, Jr., a 1960 medical graduate who
had undergone a six-month training in psychiatry in the National Mental
Hospital, to examine Ambal and to submit within one month a report on the
latter's mental condition (p. 65, Record).

Doctor Balbas in his report dated November 3, 1977 found that Ambal was a
"passive-aggressive, emotionally unstable, explosive or inadequate
personality" (Exh. 1).

Doctor Balbas testified that during the period form February 1 (twelve days
after the killing) to November 3, 1977, when he placed Ambal under
observation, the latter did not show any mental defect and was normal (44-46
tsn November 3,1977).

Asked directly whether Ambal suffered from a mental disease or defect,

Doctor Balbas replied: "Before the commission of the crime, he was normal.
After the commission of the crime, normal, but during the commission of the
crime, that is what we call "Psychosis" due to short frustration tolerance" (45
tsn).

Doctor Cresogono Llacuna,a 1937 medical graduate who undertook a two-

month observation of mental cases and who in the course of his long practice
had treated around one hundred cases of mental disorders, attended to
Ambal in 1975. He found that Ambal suffered from a psychoneurosis, a
disturbance of the functional nervous system which is not insanity (65
November 15, 1977). The doctor concluded that Ambal was not insane.
Ambal was normal but nervous (68 He had no mental disorder.

Ambal, 49, who reached Grade four, testified on November 16, 1977 or about
ten months after the incident. He said that at the time of the killing he did not
know what he was doing because he was allegedly not in full possession of
his normal mental faculties. He pretended not to know that he was charged
with the capital offense of having killed his wife.
But he admitted that he knew that his wife was dead because he was
informed of her death. During his confinement in jail he mopped the floor and
cooked food for his fellow prisoners. Sometimes, he worked in the town plaza
or was sent unescorted to buy food in the market.

He said that his wife quarrelled with him. She was irritable. he admitted that
he rode on a tricycle when he surrendered on the day of the killing. He
remembered that a week before the incident he got wet while plowing. He feel
asleep without changing his clothes. At midnight, when he woke up, he had
chills. That was the commencement, his last illness.

The trial court concluded from Ambal's behavior immediately after the
incident that he was not insane and that he acted like a normal human being.
We agree with the court's conclusion.

Courts should be careful to distinguish insanity in law from passion or

eccentricity, mental weakness or mere depression resulting from physical
ailment. The State should guard against sane murderers escaping
punishment through a general plea of insanity. (People vs. Bonoan, 64 Phil.
87, 94.)

Article 12 of the Revised Penal Code exempts from criminal liability an

imbecile or an insane person unless the latter has acted during a lucid
interval. *

According to the dictionary imbecile is a person marked by mental deficiency

while an insane person is one who has an unsound mind or suffers from a
mental disorder. "imbecil vale tanto como escaso de razon y es loco el que
ha perdido el juico." An insane person may have lucid intervals but "el
embecil no puede tener, no tiene estos intervalos de Corazon, pues en el no
hay una alteracion, sino una carencia del juico mismo" (1 Viada, Codigo
Penal, 4th Ed., p. 92.)

Insanity has been defined as "a manifestation in language or conduct of

disease or defect of the brain, or a more or less permanently diseased or
disordered condition of the mentality, functional or organic, and characterized
by perversion, inhibition, or disordered function of the sensory or of the
intellective faculties, or by impaired or disordered volition" (Sec. 1039,
Revised Administrative Code).

The law presumes that every person is of sound mind, in the absence of
proof to the contrary (Art. 800, Civil Code re Testamentary Succession; U.S.
vs. Martinez, 34 Phil. 305, 308). The law always presumes all acts to be
voluntary. It is improper to presume that acts were executed unconsciously
(People vs. Cruz, 109 Phil. 288, 292; People vs. Tagasa, 68 Phil. 147, 153;
U.S. vs. Guevara, 27 Phil. 547; People vs. Fausto, 113 Phil. 841).

When there is no proof that the defendant was not of sound mind at the time
he performed the criminal act charged to him, or that he performed it at the
time of madness or of mental derangement, or that he was generally
considered to be insane — his habitual condition being, on the contrary,
healthy — the legal presumption is that he acted in his ordinary state of mind
and the burden is upon the defendant to overcome this presumption (U.S. vs.
Zamora, 32 Phil. 218.)

Without positive proof that the defendant had lost his reason or was
demented, a few moments prior to or during the perpetration of the crime, it
will be presumed that he was in a normal condition (U.S. vs. Hontiveros
Carmona, 18 Phil. 62).

A defendant in a criminal case, who interposes the defense of mental

incapacity, has the burden of establishing that fact, meaning that he was
insane at the very moment when the crime was committed (People vs.
Bascos, 44 Phil. 204.)

What should be the criterion for insanity or imbecility? We have adopted the
rule, based on Spanish jurisprudence, that in order that a person could be
regarded as an imbecile within the meaning of article 12 of the Revised Penal
Code, he must be deprived completely of reason or discernment and freedom
of the will at the time of committing the crime (People vs. Formigonez, 87
Phil. 658, 660)

In order that insanity may be taken as an exempting circumstance, there must

be complete deprivation of intelligence in the commission of the act or that
the accused acted without the least discernment. Mere abnormality of his
mental faculties does not exclude imputability. (People vs. Cruz, 109 Phil.
288,292; People vs. Renegado, L-27031, May 31,1974,57 SCRA 275, 286.)

A man who could feel the pangs of jealousy and who tried to vindicate his
honor by taking violent measures to the extent of killing his wife (whom he
suspected of infidelity) can hardly be regarded as an imbecile (Formigones
case).

Where the accused had a passionate nature, with a tendency to having

violent fits when angry, his acts of breaking glasses and smashing dishes are
indications of an explosive temper and not insanity, especially considering
that he did not turn violent when a policeman intercepted him after he had
killed his wife. (Cruz case.)
There is a vast difference between an insane person and one who has
worked himself up into such a frenzy of anger that he fails to use reason or
good judgment in what he does. Persons who get into a quarrel or fight
seldom, if ever, act naturally during the fight. An extremely angry man, often,
if not always, acts like a madman. The fact that a person acts crazy is not
conclusive that he is insane. The popular meaning of the word I "crazy" is not
synonymous with the legal terms "insane", "non compos mentis," "unsound
mind","idiot", or "lunatic" (U.S. vs. Vaquilar, 27 Phil. 88, 91.)

The heat of passion and feeling produced by motives of anger, hatred, or

revenge is not insanity. (People vs. Foy, 138 N.Y. 664, cited in Vaquilar case,
on p. 92.)

One who, in possession of a sound and, commits a criminal act under the
impulse of passion or revenge, which may temporarily dethrone reason and
for the moment control the will, cannot nevertheless be shielded from the
consequences of the act by the plea of insanity. Insanity will only excuse the
commission of a criminal act, when it is made affirmatively to appear that the
person committing it was insane, and that the offense was the direct
consequence of his insanity (State vs. Strickly, 41 Iowa 232, cited in Vaquilar
case, on p. 94.)

The defense of insanity was rejected in a case where the accused killed by
strangulation a sixteen-year-old girl, who got leaves from his banana plants,
and sliced the flesh of her legs, thighs and shoulders, cooked the flesh and
ate it like a cannibal. (People vs. Balondo, L-27401, October 31, 1969, 30
SCRA 155).

Being weak-minded does not necessarily mean that the accused is insane
(People vs. Martin, 120 Phil. 14, 20-21).

Justice Cardozo in his article, "What Medicine Can Do For The Law", traces
briefly the origin of the rule regarding insanity as a defense. He says:

In the early stages of our law, way back in medieval times, insanity was never
a defense for crime. The insane killer, like the man who killed in self-defense,
might seek a pardon from the king, and would often get one. He had no
defense at law. Gradually insanity was allowed, but only within narrow limits
This was what was become known as the wild-beast stage of the defense.
Then the limits of the defense were expanded, but still slowly and narrowly.
The killer was excused if the disease of the mind was such that he was
incapable of appreciating the difference between right and wrong. At first this
meant, not the right and wrong of particular case, but right and wrong
generally or in the abstract, the difference, as it was sometimes said, between
good and evil. Later, the rule was modified in favor of the prisoner so that
capacity to distinguish between right and wrong generally would not charge
with responsibility if there was no capacity to understand the difference in
relation to the particular act, the subject of the crime.

The rule governing the subject was crystallized in England in 1843 by the
answer made by the House of Lords to questions submitted by judges in the
famous case of McNaghten, who was tried for the murder of one Drummond,
the secretary of Sir Robert Peel.

In the M'Naghten case, 8 Eng. Rep. 718, Clark and Finelly 200, the following
rule was laid down: "To establish a defense on the ground of insanity, it must
be clearly proved that, at the time of committing the act, the party accused
was laboring under such a defect of reason from disease of the mind, as not,
to know the nature and quality of the act he was doing, or, if he did know it,
that he did not know he was doing what was wrong."

In the M'Naghten case, it appears that Daniel M'Naghten shot Edward

Drummond on January 20, 1843. Drummond died as a consequence of the
gunshot wound on April 25, 1843. Drummond was the private secretary of Sir
Robert Peel, prime minister M'Naghten shot Drummond, thinking he was Sir
Robert. M'Naghten labored under the the insane delusion that he was being
hounded by his enemies and that the prime minister was one of them.
Medical evidence tended to prove that M'Naghten was affected by morbid
delusions which carried him beyond the power of his own control, leaving him
unable to distinguish right and wrong, and that he was incapable of controlling
his conduct in connection with the delusion. The jury found him not guilty by
reason of insanity.

As stated in another case, the "test of the responsibility for criminal acts,
when insanity is asserted, is the capacity of the accused to distinguish
between right and wrong at the time and with respect to the act which is the
subject of the inquiry. (Coleman's case,1 N.Y. Cr. Rep. 1.)

Another test is the so-called "irresistible impulse" test which means that
"assuming defendant's knowledge of the nature and quality of his act and his
knowledge that the act is wrong, if, by reason of disease of the mind,
defendant has been deprived of or lost the power of his will which would
enable him to prevent himself from doing the act, then he cannot be found
guilty." The commission of the crime is excused even if the accused knew
what he was doing was wrong provided that as a result of mental disease he
lacked the power to resist the impulse to commit the act. (State v. White, 270
Pac. 2d. 727, 730; Leslie Kast, 31 North Dakota Law Review, pp. 170, 173.)

The latest rule on the point is that "the so-called right wrong test,
supplemented by the irresistible impulse test, does not alone supply adequate
criteria for determining criminal responsibility of a person alleged mental
incapacity." "An accused is not criminally responsible if his unlawful act is the
product of a mental disease or a mental defect. A mental disease relieving an
accused of criminal responsibility for his unlawful act is a condition
considered capable of improvement or deterioration; a mental defect having
such effect on criminal responsibility is a condition not considered capable of
improvement or deterioration, and either congenital, or the result of injury or
of a physical or mental disease." (Syllabi, Durham v. U.S., 214 F. 2nd. 862,
874, 45 A.L.R. 2d. 1430 [1954].)

As stated in 22 C.J.S. 203, "the general test of criminal responsibility may be

stated to be the capacity to understand the nature and consequences of the
act charged and the ability to distinguish between right and wrong as to such
act, and in a majority of jurisdictions this is the exclusive test."

And, as noted in 21 Am Jur 2d. 118, the rule in the M'Naghten case exists
along with the "irresistible impulse" test or some other formula permitting a
defendant to be exculpated on the ground that, although he knew the act was
wrong, he was unable to refrain from committing it.

Since the broadest test suggested, which is the Durham or "Product" rule,
also permits inability to distinguish between right and wrong to be considered,
even though it refuses to limit the inquiry to that topic, it would appear that
insanity which meets this test is a defense in all Anglo-American jurisdictions
and that the only controversy is over whether there are some cases in which
the right-and-wrong test is not met, but in which a defense on grounds of
insanity should nevertheless be recognized. (21 Am Jur 2d 118.)

In the instant case, the alleged insanity of Ambal was not substantiated by
any sufficient evidence. The presumption of sanity was not overthrown. He
was not completely bereft of reason or discernment and freedom of will when
he mortally wounded his wife. He was not suffering from any mental disease
or defect.

The fact that immediately after the incident he thought of surrendering to the
law-enforcing authorities is incontestable proof that he knew that what he had
done was wrong and that he was going to be punished for it.

Ambal is guilty of parricide with the mitigating circumstance of voluntary

surrender to the authorities. Article 246 of the Revised Penal Code punishes
parricide with reclusion perpetua to death. The lesser penalty should be
imposed because of the presence of one mitigating circumstance and the
absence of aggravating circumstances (Art. 63[3], Revised Penal Code).
WHEREFORE, the trial court's decision is affirmed. Costs against the
appellant.

SO ORDERED.
G.R. No. L-3246 November 29, 1950

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ABELARDO FORMIGONES, defendant-appellant.

Luis Contreras for appellant.

Office of the Solicitor General Felix Bautista Angelo and Solicitor Felix V.
Makasiar for appellee.

MONTEMAYOR, J.:

This is an appeal from the decision of the Court of First Instance of

Camarines Sur finding the appellant guilty of parricide and sentencing him to
reclusion perpetua, to indemnify the heirs of the deceased in the amount of
P2,000, and to pay the costs. The following facts are not disputed.

In the month of November, 1946, the defendant Abelardo Formigones was

living on his farm in Bahao, Libmanan, municipality of Sipocot, Camarines
Sur, with his wife, Julia Agricola, and his five children. From there they went
to live in the house of his half-brother, Zacarias Formigones, in the barrio of
Binahian of the same municipality of Sipocot, to find employment as
harvesters of palay. After about a month's stay or rather on December 28,
1946, late in the afternoon, Julia was sitting at the head of the stairs of the
house. The accused, without any previous quarrel or provocation whatsoever,
took his bolo from the wall of the house and stabbed his wife, Julia, in the
back, the blade penetrating the right lung and causing a severe hemorrhage
resulting in her death not long thereafter. The blow sent Julia toppling down
the stairs to the ground, immediately followed by her husband Abelardo who,
taking her up in his arms, carried her up the house, laid her on the floor of the
living room and then lay down beside her. In this position he was found by the
people who came in response to the shouts for help made by his eldest
daughter, Irene Formigones, who witnessed and testified to the stabbing of
her mother by her father.

Investigated by the Constabulary, defendant Abelardo signed a written

statement, Exhibit D, wherein he admitted that he killed The motive was
admittedly of jealousy because according to his statement he used to have
quarrels with his wife for the reason that he often saw her in the company of
his brother Zacarias; that he suspected that the two were maintaining illicit
relations because he noticed that his had become indifferent to him
(defendant).

During the preliminary investigation conducted by the justice of the peace of

Sipocot, the accused pleaded guilty, as shown by Exhibit E. At the trial of the
case in the Court of First Instance, the defendant entered a plea of not guilty,
but did not testify. His counsel presented the testimony of two guards of the
provincial jail where Abelardo was confined to the effect that his conduct
there was rather strange and that he behaved like an insane person; that
sometimes he would remove his clothes and go stark naked in the presence
of his fellow prisoners; that at times he would remain silent and indifferent to
his surroundings; that he would refused to take a bath and wash his clothes
until forced by the prison authorities; and that sometimes he would sing in
chorus with his fellow prisoners, or even alone by himself without being
asked; and that once when the door of his cell was opened, he suddenly
darted from inside into the prison compound apparently in an attempt to
regain his liberty.

The appeal is based merely on the theory that the appellant is an imbecile
and therefore exempt from criminal liability under article 12 of the Revised
Penal Code. The trial court rejected this same theory and we are inclined to
agree with the lower court. According to the very witness of the defendant, Dr.
Francisco Gomez, who examined him, it was his opinion that Abelardo was
suffering only from feeblemindedness and not imbecility and that he could
distinguish right from wrong.

In order that a person could be regarded as an imbecile within the meaning of

article 12 of the Revised Penal Code so as to be exempt from criminal
liability, he must be deprived completely of reason or discernment and
freedom of the will at the time of committing the crime. The provisions of
article 12 of the Revised Penal Code are copied from and based on
paragraph 1, article 8, of the old Penal Code of Spain. Consequently, the
decisions of the Supreme Court of Spain interpreting and applying said
provisions are pertinent and applicable. We quote Judge Guillermo Guevara
on his Commentaries on the Revised Penal Code, 4th Edition, pages 42 to
43:

The Supreme Court of Spain held that in order that this exempting
circumstances may be taken into account, it is necessary that there be a
complete deprivation of intelligence in committing the act, that is, that the
accused be deprived of reason; that there be no responsibility for his own
acts; that he acts without the least discernment;1 that there be a complete
absence of the power to discern, or that there be a total deprivation of
freedom of the will. For this reason, it was held that the imbecility or insanity
at the time of the commission of the act should absolutely deprive a person of
intelligence or freedom of will, because mere abnormality of his mental
faculties does not exclude imputability.2

The Supreme Court of Spain likewise held that deaf-muteness cannot be

equaled to imbecility or insanity.
The allegation of insanity or imbecility must be clearly proved. Without
positive evidence that the defendant had previously lost his reason or was
demented, a few moments prior to or during the perpetration of the crime, it
will be presumed that he was in a normal condition. Acts penalized by law are
always reputed to be voluntary, and it is improper to conclude that a person
acted unconsciously, in order to relieve him from liability, on the basis of his
mental condition, unless his insanity and absence of will are proved.

As to the strange behaviour of the accused during his confinement, assuming

that it was not feigned to stimulate insanity, it may be attributed either to his
being feebleminded or eccentric, or to a morbid mental condition produced by
remorse at having killed his wife. From the case of United States vs. Vaquilar
(27 Phil. 88), we quote the following syllabus:

Testimony of eye-witnesses to a parricide, which goes no further than to

indicate that the accused was moved by a wayward or hysterical burst of
anger or passion, and other testimony to the effect that, while in confinement
awaiting trial, defendant acted absentmindedly at times, is not sufficient to
establish the defense of insanity. The conduct of the defendant while in
confinement appears to have been due to a morbid mental condition
produced by remorse.

After a careful study of the record, we are convinced that the appellant is not
an imbecile. According to the evidence, during his marriage of about 16
years, he has not done anything or conducted himself in anyway so as to
warrant an opinion that he was or is an imbecile. He regularly and dutifully
cultivated his farm, raised five children, and supported his family and even
maintained in school his children of school age, with the fruits of his work.
Occasionally, as a side line he made copra. And a man who could feel the
pangs of jealousy to take violent measure to the extent of killing his wife
whom he suspected of being unfaithful to him, in the belief that in doing so he
was vindicating his honor, could hardly be regarded as an imbecile. Whether
or not his suspicions were justified, is of little or no import. The fact is that he
believed her faithless.

But to show that his feeling of jealousy had some color of justification and
was not a mere product of hallucination and aberrations of a disordered mind
as that an imbecile or a lunatic, there is evidence to the following effect. In
addition to the observations made by appellant in his written statement
Exhibit D, it is said that when he and his wife first went to live in the house of
his half brother, Zacarias Formigones, the latter was living with his
grandmother, and his house was vacant. However, after the family of
Abelardo was settled in the house, Zacarias not only frequented said house
but also used to sleep there nights. All this may have aroused and even partly
confirmed the suspicions of Abelardo, at least to his way of thinking.

The appellant has all the sympathies of the Court. He seems to be one of
those unfortunate beings, simple, and even feebleminded, whose faculties
have not been fully developed. His action in picking up the body of his wife
after she fell down to the ground, dead, taking her upstairs, laying her on the
floor, and lying beside her for hours, shows his feeling of remorse at having
killed his loved one though he thought that she has betrayed him. Although
he did not exactly surrender to the authorities, still he made no effort to flee
and compel the police to hunt him down and arrest him. In his written
statement he readily admitted that he killed his wife, and at the trial he made
no effort to deny or repudiate said written statement, thus saving the
government all the trouble and expense of catching him, and insuring his
conviction.

Although the deceased was struck in the back, we are not prepared to find
that the aggravating circumstance of treachery attended the commission of
the crime. It seems that the prosecution was not intent or proving it. At least
said aggravating circumstance was not alleged in the complaint either in the
justice of the peace court or in the Court of First Instance. We are inclined to
give him the benefit of the doubt and we therefore declined to find the
existence of this aggravating circumstance. On the other hand, the fact that
the accused is feebleminded warrants the finding in his favor of the mitigating
circumstance provided for in either paragraph 8 or paragraph 9 of article 13 of
the Revised Penal Code, namely that the accused is "suffering some physical
defect which thus restricts his means of action, defense, or communication
with his fellow beings," or such illness "as would diminish the exercise of his
will power." To this we may add the mitigating circumstance in paragraph 6 of
the same article, — that of having acted upon an impulse so powerful as
naturally to have produced passion or obfuscation. The accused evidently
killed his wife in a fit of jealousy.

With the presence of two mitigating circumstances without any aggravating

circumstance to offset them, at first we thought of the possible applicability of
the provisions of article 64, paragraph 5 of the Revised Penal Code for the
purpose of imposing the penalty next lower to that prescribed by article 246
for parricide, which is reclusion perpetua to death. It will be observed
however, that article 64 refers to the application of penalties which contain
three periods whether it be a single divisible penalty or composed of three
different penalties, each one of which forms a period in accordance with the
provisions of articles 76 and 77, which is not true in the present case where
the penalty applicable for parricide is composed only of two indivisible
penalties. On the other hand, article 63 of the same Code refers to the
application of indivisible penalties whether it be a single divisible penalty, or
two indivisible penalties like that of reclusion perpetua to death. It is therefore
clear that article 63 is the one applicable in the present case.

Paragraph 2, rule 3 of said article 63 provides that when the commission of

the act is attended by some mitigating circumstance and there is no
aggravating circumstance, the lesser penalty shall be applied. Interpreting a
similar legal provision the Supreme Court in the case of United States vs.
Guevara (10 Phil. 37), involving the crime of parricide, in applying article 80,
paragraph 2 (rule 3 of the old Penal Code) which corresponds to article 63,
paragraph 2 (rule 3 of the present Revised Penal Code), thru Chief Justice
Arellano said the following:

And even though the court should take into consideration the presence of two
mitigating circumstances of a qualifying nature, which it can not afford to
overlook, without any aggravating one, the penalty could not be reduced to
the next lower to that imposed by law, because, according to a ruling of the
court of Spain, article 80 above-mentioned does not contain a precept similar
to that contained in Rule 5 of article 81 (now Rule 5, art. 64 of the Rev. Penal
Code.) (Decision of September 30, 1879.)

Yet, in view of the excessive penalty imposed, the strict application of which
is inevitable and which, under the law, must be sustained, this court now
resorts to the discretional power conferred by paragraph 2 of article 2 of the
Penal Code; and.

Therefore, we affirm the judgment appealed from with costs, and hereby
order that a proper petition be filed with the executive branch of the
Government in order that the latter, if it be deemed proper in the exercise of
the prerogative vested in it by the sovereign power, may reduce the penalty to
that of the next lower.

Then, in the case of People vs. Castañeda (60 Phil. 604), another parricide
case, the Supreme Court in affirming the judgment of conviction sentencing
defendant to reclusion perpetua, said that notwithstanding the numerous
mitigating circumstances found to exist, inasmuch as the penalty for parricide
as fixed by article 246 of the Revised Penal Code is composed of two
indivisible penalties, namely, reclusion perpetua to death, paragraph 3 of
article 63 of the said Code must be applied. The Court further observed:

We are likewise convinced that appellant did not have that malice nor has
exhibited such moral turpitude as requires life imprisonment, and therefore
under the provisions of article 5 of the Revised Penal Code, we respectfully
invite the attention of the Chief Executive to the case with a view to executive
clemency after appellant has served an appreciable amount of confinement.
In conclusion, we find the appellant guilty of parricide and we hereby affirm
the judgment of the lower court with the modification that the appellant will be
credited with one-half of any preventive imprisonment he has undergone.
Appellant will pay costs.

Following the attitude adopted and the action taken by this same court in the
two cases above cited, and believing that the appellant is entitled to a lighter
penalty, this case should be brought to the attention of the Chief Executive
who, in his discretion may reduce the penalty to that next lower to reclusion
perpetua to death or otherwise apply executive clemency in the manner he
sees fit.
G.R. No. 112088 March 25, 1999

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
RONALDO ALMADEN Alias "Dodong", accused-appellant.

KAPUNAN, J.:

Before us is an appeal from the Judgment1 of the Regional Trial Court of

Tacloban City, Branch 6-A, in Criminal Case No. 91-02-107, convicting
appellant Ronaldo Almaden of the crime of rape. The dispositive portion of
the appealed Judgment reads:

WHEREFORE, in view of the foregoing, the Court finds accused RONALDO

ALMADEN guilty beyond reasonable doubt of the crime of RAPE as defined
and penalized under Art. 335 of the Revised Penal Code as amended, and he
is hereby sentenced to suffer a penalty of RECLUSION PERPETUA, and to
indemnify the offended party (Arlene Saldaña) the amount of Thirty Thousand
Pesos (P 30,000) as moral damages.2

A complaint for "sexual assault" was filed on January 4, 1991, by the victim
Arlene Saldaña against appellant Almaden with the Municipal Trial Court of
Palo, Leyte.3 The municipal trial court conducted a preliminary investigation
and recommended that appellant be charged with attempted rape. 4
However, the provincial prosecutor, after review of the case, filed an
information for rape that reads:

That on or about the 27th day of December, 1990, in the Municipality of Palo,
Province of Leyte, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, with deliberate intent and with lewd
designs, and by means of force, threats and intimidation did, then and there
willfully, unlawfully, and feloniously have carnal knowledge with one ARLENE
SALDAÑA, a 10-year old girl, without her consent and against her will and to
her damage and prejudice.5

Arraignment was initially postponed upon manifestation of the defense that

appellant Almaden was suffering from mental disorder.6 After a mental
examination determined that he was competent to stand trial,7 Almaden was
arraigned on June 21, 1991.8 He pleaded not guilty to the charge of rape.9

To a large extent, the facts of the case are not in dispute. The victim Arlene
Saldaña was then a young girl of 11 years.10 Appellant admitted that the
incident occurred on December 27, 1990, at around 8 o'clock in the morning,
in Barangay Cahindok, Palo, Leyte. On that fateful morning, young Arlene
was gathering firewood upon instructions of her mother with her friend Edwin
Sudario,11 also a minor.12 Appellant Almaden chanced upon them as he
was on his way to his farm.13 He approached the children and ordered them
to undress. 14 Arlene took off her shorts and underwear while Edwin lowered
his jogging pants down to his knees. Arlene was ordered to lie on the ground
and Edwin to place himself on top of Arlene. They were then made to
simulate the sexual act. 15

From this point, the versions of the prosecution and the defense vary.
According to appellant, he left Arlene and Edwin immediately after the two
had commenced to simulate the sexual act, and he continued on his way to
his farm. 16 Yet, according to the prosecution, there was a more malevolent
twist to the story. Arlene and Edwin testified that, contrary to appellant's
declaration, appellant Almaden did not leave them as they were simulating
the sexual act. Rather, appellant positioned himself nearby and closely
observed them with his weapon ready.17 At the time of the incident, appellant
was armed with a bolo. 18 Appellant Almaden unsheathed his bolo19 in order
to threaten the minors and compel them to undress and simulate the sexual
act.20 After the two minors simulated the sexual act, Almaden ordered Edwin
to get up.21 He then grabbed the supine Arlene by her arm and made her
stand.22 With his bolo in one hand and Arlene's arm in the other, appellant
dragged Arlene to a nearby bamboo grove.23 Meanwhile, Edwin seized the
opportunity to escape. He pulled his jogging pants and ran home. He then
told his mother about the incident.24

At the bamboo grove, Almaden again forced Arlene to lie on the

ground. 25 This time, appellant himself got on top of Arlene.26 Appellant
loosened his shorts unzipped his fly and proceeded to insert his penis into
Arlene's vagina. 27 Arlene, at the time, had no lower clothing because her
short and underwear were at the place where she and Edwin were made to
lie down. Appellant succeeded in inserting a small portion of his penis.28
Arlene felt intense pain causing her to cry out, "Agi!"29 Appellant next made
Arlene to sit up. He knelt on the ground in front of Arlene and ordered her to
suck his penis.30 After sucking for about three minutes,31 Arlene was made
to swallow32 a warm substance ejaculated from appellant's penis while inside
her mouth.

Between the two versions of the incident, the trial court chose to give
credence to the prosecution version and convicted appellant. Hence, this
appeal wherein appellant assigns the single error that the trial court convicted
him on the basis of "incredible, improbable and inconsistent testimonies of
prosecution witnesses."33
As consistently held by the Court, the rule is that the trial court's evaluation of
a witness's credibility is entitled to great respect.34 And there is sound reason
for this rule. It was trial court that had the opportunity to observe firsthand the
demeanor of the witness on the stand to gauge the truthfulness of his
narration.35 The tentative tone of voice, the flushed face, the pregnant pause
in narration and the frequent fidgeting are, to the perceptive judge, telltale
marks of truth or falsity. Yet, these same marks are not captured on record
and upon review are lost to the appellate court.

In its well-written decision, the trial court observed that the "(v)ictim did not
waver during her testimony, but narrated the events with straightforward
confidence, clear, convincing and precise in every detail on how the bastardly
(sic) act was committed by Ronaldo Almaden."36 We find sufficient basis in
the record for such evaluation of Arlene`s testimony. Arlene gave a very
candid narration of her ordeal thus:37

Q — Now, when you reached the bamboo grove (sic) after you have been
dragged by Ronaldo Almaden, what next did Ronaldo Almaden do to you?

A — He made me lie down and he placed himself on top of me.

Q — At the time you were made to lie down by Ronaldo Almaden after you
had been dragged you had been dragged to the bamboo groove (sic), where
was your city shorts and your panty?

A — At the place where both I and Edwin where (sic).

Q — When accused Ronaldo Almaden placed himself on top of you, was he

wearing any pants?

ATTY. SALINAS

Objection, Your Honor, very leading.

COURT

AS I SAID IN THIS STAGE, I WILL ALLOW LEADING QUESTIONS.

PROS. CANDIDO

Yes because the witness is of tender age.

A — Yes, sir.

Q — What did he do with his pants?

A — He pulled down the zipper of his pants.

Q — Do you know why he pulled down the zipper of his pants?

A — Yes, Sir, because he took out his penis.

Q — What did he do with his penis after he had taken that out and he was
already on top of you?

A — He placed his penis into my vagina.

Q — Did he succeed in putting his penis inside your vagina?

A — Yes, Sir, but only a small bit of his penis into my vagina, because it
would not enter.

Q — Now, did you not try to resist while the accused Ronaldo Almaden was
trying to insert his penis inside your vagina?

A — I felt pain from my vagina up to the top of my head and cried as it was
very painful.

Q — Did you not try to plead with Ronaldo Almaden not to do what he was
trying to do with you?

A — I did that, Sir.

Q — What did you do to him?

A — I said "ouch."

Q — And what did Ronaldo Almaden do in response to your expression of

pain?

A — He told me to get up.

Q — But that was after he had succeeded in inserting a little portion of his
penis inside your vagina?

A — Yes, sir.

COURT

DO YOU KNOW HOW TO READ A WATCH?

A — Yes, sir.

COURT

MINUTES

A — Yes, sir.

COURT

HOW MANY MINUTES WAS ALMADEN ON TOP OF YOU?

A — For a time but I cannot estimate how many minutes. Maybe five (5)
minutes.

Thus, the trial court rejected appellant Almaden's version that he was
unarmed at the time38 and very weak because he had just suffered an
epileptic seizure39 The trial court also dismissed his claim that he neither
touched
Arlene 40 nor employed force or intimidation upon her.41

Appellant Almaden disputes Arlene's claim that she was dragged by him to
the bamboo grove. According to him, this is highly improbable because the
Medico-Legal Report42 mentions no injury on the victim's buttocks and legs.
Appellant argues that if indeed Arlene was dragged, then she would have
suffered injury on her buttocks and legs. And that if indeed Arlene was
dragged and suffered injury, then such injury would have been discovered by
the examining physician and placed in her report.

We dismiss appellant's contention. Arlene testified that she was injured when
she was dragged to the bamboo grove, yet it appears that her injuries were
not seen by the examining physician. For her part, the physician explained
that while she examined the victim from head to foot,43 her focus was on the
internal examination of Arlene's pelvis and hymen.44 Such focus on internal
examination is understandable considering that Arlene was being examined
on the basis of her claim that she was sexually assaulted.

Appellant also contends that Arlene's claim that she was raped is equally
improbable because Arlene's hymen is intact.45 As repeatedly enunciated by
the Court, an intact hymen does not negate a finding that the victim was
raped.46 To commit the crime of rape, the rupture of the hymen is not
indispensable.47 Even the full penetration by the penis is not necessary.
The gravamen of the crime of rape is carnal knowledge under the
circumstances enumerated in the penal code.48 Carnal knowledge is, simply
put, sexual intercourse49 between a man and a woman. With the slightest
penetration, sexual intercourse is achieved,50 and the crime of rape is
consummated. The examining physician even testified as an expert witness
on obstetrics and gynecology51 that an intact hymen does not eliminate the
possibility that a hard object or a penis was inserted into the vagina.52 In
some cases, the physician said, the hymen is still intact even after the woman
has given birth.55

Although the appellant did not categorically raise the defense that the
appellant's alleged epilepsy exempts him from criminal liability, much of the
testimony of defense witnesses during the trial was devoted to appellant's
medical condition. Epilepsy per se is not an exempting circumstance. As early
as 1927, the Court has dismissed the defense of epilepsy thus:

Neither can the defense of lack of free will of the accused Ciriaco Aguilar,
who is an epileptic, be sustained. While Ciriaco Aguilar, as an epileptic was
susceptible to nervous attacks that may momentarily deprive him of his
mental faculties and lead him to unconsciously attempt to take his own life
and the lives of others, nevertheless, it has not been shown that he was
under the influence of an epileptic fit before, during, and immediately after the
aggression.54

Appellant testified that he suffered an epileptic fit immediately prior to the

incident.55 However, according to the trial court, this was highly improbable
because appellant himself said that he would weaken and sleep for several
hours whenever he suffered an attack.56

In summary, we find that the trial court did not err in giving credence to the
testimony of the victim Arlene and her friend Edwin. Their testimonies, far
from being incredible and improbable as contended by appellant Almaden,
were a true narration of what actually took place. Arlene's testimony was
candid and straightforward, and no ill motive can be discovered why she
would impute against appellant so grave a charge. She positively identified
appellant as her assailant.57 Arlene's actions immediately after the incident
are consistent with the natural conduct of a young lass who had been
sexually assaulted. Arlene promptly ran to her mother, reported the incident
to the Barangay Chairman and immediately submitted to medical examination
at the Leyte Provincial Hospital, all within one hour after the incident. No
woman especially one who is of tender age would concoct a story of
defloration, allow an examination of her private parts and thereafter permit
herself to be subjected to a public trial, if she is not motivated solely by the
desire to have the culprit apprehended and punished. 58
After a careful review of the records of the case, we find that the prosecution
proved beyond reasonable doubt that appellant committed the nefarious deed
against the victim Arlene. There is sufficient evidence to produce moral
certainty that appelant Almaden, through force and intimidation, succeeded in
consummating the sexual act with victim Arlene Saldaña who was then a
woman under twelve years of age.

The award of "thirty thousand pesos in indemnity as moral damages,"

although not assailed by appellant, must be modified. The victim Arlene is
entitled to both indemnity and moral damages. Indemnity may be
automatically awarded upon proof of commission of the crime of rape.59 As
to moral damages, the records clearly disclose the basis for its award. The
child Arlene testified that she felt extreme physical pain when she was
ravished by
Almaden. 60 A prosecution witness also testified that Arlene suffered the
humiliation of tearfully relating her ordeal before a crowd.61 We find this
sufficient basis for awarding moral damages as provided in the Civil Code.62
Consistent with current case law,63 we deem the amounts of fifty thousand
pesos in indemnity and fifty thousand pesos in moral damages as
appropriate.

WHEREFORE, the Judgment appealed from is hereby AFFIRMED with the

modification that accused-appellant should pay the victim, Arlene Saldaña,
the amount of fifty thousand pesos (P50,000) as indemnity and an additional
amount of fifty thousand pesos (P50,000) as moral damages.

SO ORDERED.
G.R. No. L-37673 March 31, 1933

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
POTENCIANO TANEO, defendant-appellant.

Carlos S. Tan for appellant.

Attorney-General Jaranilla for appellee.

AVANCEÑA, C.J.:

Potenciano Tadeo live with his wife in his parent's house of the barrio of
Dolores, municipality of Ormoc, Leyte. On January 16, 1932, a fiesta was
being celebrated in the said barrio and visitors were entertained in the house.
Among them were Fred Tanner and Luis Malinao. Early that afternoon,
Potenciano Taneo, went to sleep and while sleeping, he suddenly got up, left
the room bolo in hand and, upon meeting his wife who tried to stop him, he
wounded her in the abdomen. Potenciano Taneo attacked Fred Tanner and
Luis Malinao and tried to attack his father after which he wounded himself.
Potenciano's wife who was then seven months pregnant, died five days later
as a result of her wound, and also the foetus which was asphyxiated in the
mother's womb.

An information for parricide was filed against Potenciano Taneo, and upon
conviction he was sentenced by the trial court to reclusion perpetua with the
accessory penalties, to indemnity the heirs of the deceased in the sum of
P500 and to pay the costs. From this sentence, the defendant appealed.

It appears from the evidence that the day before the commission of the crime
the defendant had a quarrel over a glass of "tuba" with Enrique Collantes and
Valentin Abadilla, who invited him to come down to fight, and when he was
about to go down, he was stopped by his wife and his mother. On the day of
the commission of the crime, it was noted that the defendant was sad and
weak, and early in the afternoon he had a severe stomachache which made it
necessary for him to go to bed. It was then when he fell asleep. The
defendant states that when he fell asleep, he dreamed that Collantes was
trying to stab him with a bolo while Abadilla held his feet, by reason of which
he got up; and as it seemed to him that his enemies were inviting him to
come down, he armed himself with a bolo and left the room. At the door, he
met his wife who seemed to say to him that she was wounded. Then he
fancied seeing his wife really wounded and in desperation wounded himself.
As his enemies seemed to multiply around him, he attacked everybody that
came his way.
The evidence shows that the defendant not only did not have any trouble with
his wife, but that he loved her dearly. Neither did he have any dispute with
Tanner and Malinao, or have any motive for assaulting them.

Our conclusion is that the defendant acted while in a dream and his acts, with
which he is charged, were not voluntary in the sense of entailing criminal
liability.

In arriving at this conclusion, we are taking into consideration the fact that the
apparent lack of a motive for committing a criminal act does not necessarily
mean that there are none, but that simply they are not known to us, for we
cannot probe into depths of one's conscience where they may be found,
hidden away and inaccessible to our observation. We are also conscious of
the fact that an extreme moral perversion may lead a man commit a crime
without a real motive but just for the sake of committing it. But under the
special circumstances of the case, in which the victim was the defendant's
own wife whom he dearly loved, and taking into consideration the fact that the
defendant tried to attack also his father, in whose house and under whose
protection he lived, besides attacking Tanner and Malinao, his guests, whom
he himself invited as may be inferred from the evidence presented, we find
not only a lack of motives for the defendant to voluntarily commit the acts
complained of, but also motives for not committing said acts.

Doctor Serafica, an expert witness in this case, is also of the same opinion.
The doctor stated that considering the circumstances of the case, the
defendant acted while in a dream, under the influence of an hallucination and
not in his right mind.

We have thus far regarded the case upon the supposition that the wound of
the deceased was direct result of the defendant's act performed in order to
inflict it. Nevertheless we may say further that the evidence does not clearly
show this to have been the case, but that it may have been caused
accidentally. Nobody saw how the wound was inflicted. The defendant did not
testify that he wounded his wife. He only seemed to have heard her say that
she was wounded. What the evidence shows is that the deceased, who was
in the sala, intercepted the defendant at the door of the room as he was
coming out. The defendant did not dream that he was assaulting his wife but
he was defending himself from his enemies. And so, believing that his wife
was really wounded, in desperation, he stabbed himself.

In view of all these considerations, and reserving the judgment appealed

from, the courts finds that the defendant is not criminally liable for the offense
with which he is charged, and it is ordered that he be confined in the
Government insane asylum, hence he shall not be released until the director
thereof finds that his liberty would no longer constitute a menace, with costs
de oficio. So ordered.

Street, Ostrand, Abad Santos, and Butte, JJ., concur.

G.R. No. L-33877 February 6, 1931

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
JUAN N. GIMENA, defendant-appellant.

C. de G. Alvear for appellant.

Attorney-General Jaranilla for appellee.

OSTRAND, J.:

The defendant Juan N. Gimena is charged with the crime of parricide. It

appears from the evidence that on the morning of April 9, 1930, in the
municipality of Ronda, Province of Cebu, the defendant helped his father-in-
law, Gregorio Diana, in cleaning bamboo. After having finished the cleaning
he went home and upon arriving there he found his wife Crispina Diana and a
child 2 weeks of age sleeping together on the floor. Shortly afterwards
Gregorio Diana heard his daughter, the defendant's wife, cry for help. He
went to the defendant's house which was close to his own and there found
the defendant attacking Crispina with a bolo. With the assistance of Teodulo
Gimena, a brother of the defendant, Gregorio succeeded in disarming the
defendant and tied him to a post of the house. The matter was then reported
to the authorities and the justice of the peace, the chief of police, a sanitary
inspector and a policeman appeared on the scene. The justice of the peace
asked the defendant why he had attacked his wife and received the answer
that it was because she had given the sum of P2.70 to one Apolinar Sereno
whom he, the defendant, suspected of illicit relations with the wife. A few
hours later on the same day Crispina Diana died and the examination
subsequently made disclosed ten wounds in different parts of her body.

After trial the court below found the defendant guilty of parricide and
considering in his favor the mitigating circumstances of obfuscation and lack
of instruction, sentenced him to suffer fourteen years and eight months and
one day of cadena temporal with the accessory penalties prescribed by law
and to pay the costs. From this judgment the defendant appealed.

The appellant's argument in his favor is that he was in a state of

somnambulism when he attacked his wife. We do not think that this theory
can serve as a defense in the present case. By order of the trial court the
defendant was placed under observation for some time by Dr. Luis B. Gomez,
but the doctor apparently did not discover any somnambulism on the part of
the defendant. A defense of that character must be proven and such proof is
lacking in this case.
The defense that the offense charged was committed by the accused during
the prevalence of or in a state of somnambulism has been recognized; but
the latest holding of courts is to the effect that it does not constitute a defense
other than that embraced in a plea of insanity. (Wharton's Criminal Law, Vol.
1, p. 574.)

We can find no error in the decision of the court below and the appealed
judgment is therefore affirmed with the costs against the appellant. So
ordered.

Johnson, Street, Malcolm, Villamor, John, Romualdez and Villa-Real, JJ.,

concur.
G.R. No. 125334 January 28, 1998

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
CRESENCIO TABUGOCA, accused-appellant.

PER CURIAM:

This is an automatic review of the joint decision1 rendered by Branch 18 of

the Regional Trial Court of Ilagan, Isabela in Criminal Cases Nos. 2386 and
2387 finding accused-appellant Cresencio Tabugoca guilty of two counts of
rape committed against his very own daughters and imposing upon him the
penalty of reclusion perpetua in the first case and the death penalty in the
second.

In two informations simultaneously filed on January 20, 1995 in the aforesaid

trial court, accused-appellant was accused of raping his daughters in two
separate incidents. The information in Criminal Case No. 2386 charges him
as follows:

That on or about the 28th day of March, 1992 in the municipality of Naguilian,
province of Isabela, Philippines and within the jurisdiction of this Honorable
Court, the said accused, did then and there willfully, unlawfully and
feloniously, by means of force, intimidation and with lewd designs, have
carnal knowledge with his own daughter JACQUELINE A. TABUGOCA, a girl
of 14 years old (sic), against the latter's will and consent.2

The information in Criminal Case No. 2387 alleges:

That on or about the 9th day of December, 1994, in the municipality of

Naguilian, province of Isabela, Philippines and within the jurisdiction of this
Honorable Court, the said accused, did then and there willfully, unlawfully and
feloniously, by means of force, intimidation and with lewd designs, have
carnal knowledge with his own daughter JINKY A. TABUGOCA, a girl of 12
years old (sic), against the latter's will and consent.3

Accused-appellant pleaded not guilty when duly arraigned separately on the

two indictments with the assistance of counsel de officio.4 After a
consolidated trial on the merits, on March 15, 1996 the court a quo rendered
the decision now under mandatory review.5 The commission of the two
felonies was found by the lower court to have been attended by the
aggravating circumstances of relationship and intoxication purposely sought
by accused-appellant to embolden him to commit the same.
In Criminal Case No. 2386, accused-appellant was sentenced to suffer the
penalty of reclusion perpetua and directed to indemnity Jacqueline Tabugoca
in the sum of P50,000.00. In Criminal Case No. 2387, wherein the crime
charged was committed after the effectivity of Republic Act No. 7659 on
December 31, 1993,6 he was condemned to suffer the capital punishment of
death and ordered to indemnify Jinky Tabugoca in the sum of P50,000.00.

The trial court arrived at the conclusion that, beyond reasonable doubt,
accused-appellant had committed the crimes charged on the bases of the
testimonies of the victims, as corroborated by the medical reports, and the
testimony of the physician who examined them.

The respective complainants in Criminal Cases Nos. 2386 and 2387, namely,
Jacqueline Tabugoca and Jinky Tabugoca, are the daughters of accused-
appellant.7 This was not denied by him. He even expressly declared during
his testimony that Jacqueline8 and Jinky9 are his daughters.

Complainant Jacqueline testified that she and her three younger sisters,
Janet, Jinky and Jewel, lived under the sole care of their father after their
mother died on August 28, 1991. While she and her sisters were sleeping in
their house at Barangay Roxas, Naguilian, Isabela at around 10 o'clock in the
evening of March 28, 1992, she was roused by her father who asked her to
scratch his back. It turned out, however, that accused-appellant had other
intentions that night aside from relief from his itchy discomfort.

While Jacqueline was thus scratching her father's back, he told her to stay
and wait for a while. Without any intimation, accused-appellant then removed
her shorts and underwear and made her lie down beside him. Jacqueline
could only cry at this point. As soon as she was completely disrobed,
accused-appellant inserted his penis into her vagina. With his manhood
inside his daughter, accused-appellant warned her not to tell anyone of his
dastardly act if she would not want to be harmed (makaala ka kaniak).
Complainant was so petrified
with fear that she did not even dare ask her father why he was sexually
molesting her.10

Jacqueline was twelve years and three months old at the time of the incident,
she having been born on December 27, 1979.11

Because of the incident, Jacqueline harbored ill-feelings against her father,

and she reportedly became the object of gossip by her classmates in
school.12 However, she did not tell anyone about her ordeal at the hands of
her own father until she learned that the same misfortune had befallen her
sister, Jinky.
In Criminal Case No. 2387, complainant Jinky declared in the court below that
her father tried to rape her in the early morning of December 9, 1994. While
she was cleaning some articles in their house, accused-appellant approached
her and then took off his clothes. He then ordered Jinky to lie down and he
removed her shorts and panty. Thereafter, he inserted his penis into her
vagina. Jinky cried and complained to her father that she was in pain.
Accused-appellant explained that it is ordinary to feel pain because it was her
first time to experience coitus.

After a while, he did not persist anymore in his sexual pursuit. Appellant lay
down beside Jinky and told her that they will continue the following day. At
dawn of December 10, 1994, accused-appellant made another attempt to
carnally molest Jinky. This time, however, Jinky resisted, thereby causing
appellant to just lie down and leave her alone.13

Jinky was only 12 years and nine months old at the time of the incident, she
having been born on March 5,1982.14

Later, on the same day, while Jacqueline and Jinky were watching television
at their grandmother's house nearby, Jinky confided to her grandmother
about the sexual abuses of her father against her. Upon hearing the
revelations of her sister, Jacqueline also disclosed to her grandmother her
own experience with her father two years before.15

The victims' grandmother, Perlita Alejandro, forthwith brought her

granddaughters to the police authorities and then to the Municipal Health
Officer of Naguilian for physical examination. The two were examined on
December 12, 1994 by Dr. Maryann M. Fontanares.16

For Criminal Case No. 2386, with respect to Jacqueline, the doctor reduced
her findings into a medico-legal certificate17 attesting as follows:

LEGAL FINDINGS:

1. PE findings: essentially normal except for the anxiety that the victim
exhibited

2. Internal Examination : multiple healed lacerations/scars at 3, 5, 6 and 9

o'clock positions of the hymen.

: introitus admits two fingers with ease

. . . no other findings

noted . . .
RECOMMENDATIONS:

Impression : The above findings suggest that the victim was forcibly abused
and the incident, the first one happened long ago based on the healed scars
of the hymen.

For Criminal Case No. 2387, regarding Jinky, the medico-legal

certificate18 of the doctor states:

LEGAL FINDINGS:

1. The vulva is edematous although the hymen is intact. . . . no other findings

noted . . . .

RECOMMENDATIONS:

The above findings suggest that full penetration was not successful although
attempts were done based on the swelling vulva of the victim.

During her testimony in court, Dr. Fontanares explained that the lacerations
found on Jacqueline's hymen were the result of sexual intercourse which
happened approximately on the date alleged. She added that, aside from the
swelling of Jinky's labia, she also found out that they were tender and
reddish.19

After the examination, Jacqueline executed a criminal complaint20 for rape

against accused-appellant, while Jinky charged accused-appellant with
frustrated rape in her own criminal complaint.21

At the trial, accused-appellant raised the defense of his having been

completely unaware of what transpired on March 28, 1992 and on December
9, 1994 as he was very drunk on those occasions.

According to him, he does not know if he had sexually assaulted his

daughter, Jacqueline. He only came to know of the complaint of Jacqueline
against him after the policemen who arrested him on December 10, 1994 told
him thereof. On the same day, Jacqueline allegedly informed him that he was
drunk on March 28, 1992, but he claimed that he could not recall if indeed he
drank liquor that day. He then surmised that perhaps he did drink liquor
based only on the supposed statement of Jacqueline.22

With regard to the complaint of Jinky, accused-appellant similarly declared in

the lower court that he drank liquor in their house on December 9, 1994,
Again, he claimed that he could not recollect the ensuing events after he had
finished drinking. He was allegedly merely in formed by the arresting
policemen on December 10, 1994 that Jinky was accusing him of attempted
rape.

Jacqueline, on cross-examination, stated that her father smelled of liquor and

may have taken some drinks at the time of the incident.23 On the part of
Jinky, she testified in turn that her father was drunk on the night of December
9, 1994.24

Accused-appellant claimed that he learned to drink liquor after his wife died
on August 28, 1991. Prior to his wife's death, he was not used to drinking
alcoholic beverages. He later resorted to alcohol whenever he would
remember his deceased wife, but he allegedly drank only once in a while.

Accused-appellant also opined that Jacqueline and Jinky must have filed their
respective complaints in order to get back at him for castigating or whipping
them whenever they committed mistakes.

In view of the gravity of the crimes charged and of the penalty imposable
therefor, we patiently considered and thoroughly deliberated on all the
arguments and defenses presented by defendant-appellant not only in his
brief but even in his memorandum before the trial court, with all the possible
implications and possibilities thereof, no matter how specious and ridiculous
some of them may appear to be. We have likewise taken into account the
socio-economic status and the apparent intellectual level of accused-
appellant as may be gleaned from the record.

After much thought and reflection, we find no reason to depart from the
judgment of the court a quo.

On its own, the defense presented by accused-appellant before the lower

court is pitifully and completely unavailing. In law and in truth, he neither
denied the charges against him nor raised any absolutory cause in his
defense. His feeble excuse of having been under the influence of liquor in
order to disclaim knowledge of his felonious acts does not inspire belief al all.
The defense did not even comply with the evidentiary elements whereby he
could claim intoxication as a mitigating circumstance. The categorical and
untraversed testimonies of his daughters as to how he committed the bestial
outrage, and their identification of accused-appellant as their defiler, remain
uncontroverted and fully establish the charges.

Accused-appellant's pretext that he could not remember the events of March

28, 1992 and December 4, 1994 is rendered more effete in light of the
arguments in his memorandum25 submitted before the lower court. There, he
claimed exemption from criminal liability on the ground of insanity brought
about by intoxication, invoking therefor some dicta in American jurisprudence.

We have held that the law presumes every man to be sane. A person
accused of a crime who pleads the exempting circumstance of insanity has
necessarily the consequent burden of proving it.26 Further, in order that
insanity may be taken as an exempting circumstance, there must be
complete depreciation of intelligence in the commission of the act or that the
accused acted without the least discernment. Mere abnormality of his mental
faculties does not preclude imputability.27

Accused-appellant has utterly failed to overthrow the presumption of sanity.

The defense did not present any expert witness, any psychiatric evaluation
report, or any psychological findings or evidence regarding his mental
condition at the time of the commission of the offenses. Accused-appellant's
charade of amnesia is evidently a desperate gambit for exculpation. Yet,
amnesia, in and of itself, is no defense to a criminal charge unless it is shown
by competent proof that the accused did not know the nature and quality of
his action and that it was wrong. Failure to remember is in itself no proof of
the mental condition of the accused when the crime was performed.28

Also in the same memorandum, accused-appellant posits that he cannot be

prosecuted for rape in Criminal Case No. 2386 because the criminal
complaint of Jinky only accuses him of frustrated rape. With such a charge,
he argues that the trial court's jurisdiction to punish him is limited only to said
offense and cannot cover consummated rape.

This is a meritless argument. When it is said that the filing of the complaint by
the offended party in cases of rape is jurisdictional, what is meant is that it is
the complaint that starts the prosecutory proceeding, but it is not the
complaint which confers jurisdiction on the court to try the case. The court's
jurisdiction is vested in it by the Judiciary Law.29 Since the penalty for the
rape in Criminal Case No. 2387 is properly within the jurisdiction of the
regional trial court,30 then Branch 18 of the Regional Trial Court of Ilagan,
Isabela may hear and try the offense charged in the information and impose
the punishment for it.

In People vs. Bangalao, et al.,31 we convicted an accused of rape committed

against a minor as charged in the information, despite the allegation in the
complaint that the rape was committed through force and intimidation, on this
ratiocination:

It must be borne in mind that complaints are prepared in municipalities, in

most cases without the advice or help of competent counsel. When the case
reaches the Court of First Instance, the Fiscal usually conducts another
investigation, and thereafter files the information which the results thereof
justify The right and power of the court to try the accused for the crime of rape
attaches upon the filing of the complaint, and a change in the allegations
thereof as (to) the manner of committing the crime should not operate to
divest the court of jurisdiction already acquired.

In his brief,32 accused-appellant contends that his guilt has not been proved
beyond reasonable doubt by the prosecution. In support of this lone
assignment of error, he seeks to capitalize, among others, on the failure of
Jacqueline to immediately report the crime. Such failure, appellant contends,
renders doubtful the truth of her accusation.

The failure of complainant Jacqueline to immediately report the incident to the

authorities does not necessarily cast doubt on the credibility of the charge in
Criminal Case No. 2386. It is a settled decisional rule that delay in reporting a
rape case committed by a father against his daughter due to threats is
justified.33 In the numerous cases of rape that have reached this Court, we
find that it is not uncommon for young girls to conceal, for some time, the
assaults on their honor because of the rapist's threat on their lives.34

In many instances, rape victims simply suffer in silence. With more reason
would a girl ravished by her own father keep quiet about what befell her.
Furthermore, it is unfair to judge the action of children who have undergone
traumatic experiences by the norms of behavior expected of mature
individuals under the same circumstances.35

In People vs. Melivo,36 we declared that:

. . . Delay in reporting rape incidents, in the face of threats of physical

violence, cannot be taken against the victim. A rape victim's actions are
oftentimes overwhelmed by fear rather than by reason. It is this fear,
springing from the initial rape, that the perpetrator hopes to build a climate of
extreme psychological terror, which would, he hopes, numb his victim into
silence and submissiveness. Incestuous rape magnifies this terror, because
the perpetrator is a person normally expected to give solace and protection to
the victim. Furthermore, in incest, access to the victim is guaranteed by the
blood relationship, proximity magnifying the sense of helplessness and the
degree of fear.

This Court further trenchantly observed in the same decision that:

In all of these and other cases of incestuous rape, the perpetrator takes full
advantage of his blood relationship, ascendancy and influence over the
victim, both to commit the sexual assault and to intimidate the victim into
silence. Unfortunately for some perpetrators of incestuous rape, their victims
manage to break out from the cycle of fear and terror. In People vs. Molero
we emphasized that "an intimidated person cowed into submitting to a series
of repulsive acts may acquire some courage as she grows older and finally
state that enough is enough, the depraved malefactor must be punished.

We cannot therefore expect young Jacqueline to disregard the threat to her

life and immediately cry rape in the face of the threats of her father and his
constant presence in their home.

Accused-appellant next asserts in his brief that Jacqueline filed her complaint
in Criminal Case No. 2386 only out of sympathy with, and by way of revenge
for what her father had done to, her younger sister. We find it opportune to
discuss, together with this contention, the lame excuse of the defense before
the trial court that Jacqueline and Jinky filed their complaints because they
suffered beatings from accused-appellant. We find that the motive imputed to
the sisters are grossly implausible and insufficient to make them falsely
charge their own father. It is highly inconceivable that they would claim having
been raped just because their father spanks them whenever they commit
mistakes.

Mere disciplinary chastisement is not strong enough to make daughters in a

Filipino family invent a charge that would only bring shame and humiliation
upon them and their own family and make them the object of gossip among
their classmates and friends. It is unbelievable that Jacqueline would
fabricate a serious criminal charge just to get even with her father and to
empathize with her sister. The sisters would not contrive stories of defloration
and charge their own father with rape unless these stories are true. For that
matter, no young Filipina of decent repute would falsely and publicly admit
that she had been ravished and abused considering the social stigma
thereof.37

At their tender age, Jacqueline and Jinky needed sustenance and support
from their father. They certainly were aware that they would be deprived of a
provider once their accusations against him are proven. In fact, the
consequences of filing a case of rape are so serious that an ordinary woman
would have second thoughts about filing charges against her assailant. It
requires much more for a thirteen-year old or a twelve-year old provincial lass
to devise a story of rape, have her private parts examined, subject herself to
the indignity of a public trial and endure a lifetime of ridicule. Even when
consumed with revenge, it takes a certain amount of psychological depravity
for a young woman to concoct a story which would at the least put her own
father for the rest of his remaining life in jail and drag herself and the rest of
her family into a lifetime of shame.38
Thus, the unfounded claim of evil motives on the part of the victims would not
destroy the credibility reposed upon them by the trial court because, as we
have held, a rape victim's testimony is entitled to greater weight when she
accuses a close relative of having been raped her, as in the case of a
daughter against her father.39 Furthermore, the testimony of the victim who
was only twelve years old at the time of the rape as to the circumstances
thereof must be given weight, for it is an accepted rule that testimonies of
rape victims who are young and of tender age are credible.40

Accused-appellant also faults the trial court for not duly appreciating the
testimony of Jinky to the effect that he only attempted to rape her and then
desisted after she felt some pain. In relation to this, appellant maintains that
there was no rape in Criminal Case No. 2387 because of the absence of
lacerations on Jinky's vagina as found after medicolegal examination.

It is axiomatic in criminal law that in order to sustain a conviction for rape, full
penetration of the female genital organ is not required. It is enough that there
is proof of the entrance of the male organ within the labia of the pudendum of
the female organ. Penetration of the penis by entry into the lips of the vagina,
even without rupture or laceration of the hymen, suffices to warrant conviction
for rape. The rupture of the hymen or laceration of any part of the woman's
genitalia is not indispensable to a conviction for rape. Thus, a finding that the
victim's hymen is intact and has no sign of laceration does not negate a
finding that rape was committed.41

Jinky, being young and unschooled in the ways of the law, may have
entertained the notion that complete penile penetration is necessary when
she declared that her father only attempted to rape her. She was, of course,
not in any position to legally distinguish consummated from attempted rape.
This matter concerns a conclusion of law addressed to the judgment of the
courts. The declaration of Jinky that her father inserted his penis into her
vagina and the finding of swelling in her labia are enough to prove that rape
was committed as these are telltale signs of entry into the vaginal lips.

Accused-appellant contends in his memorandum that the prosecution failed

to prove the employment of force and intimidation against complainants in
both criminal cases. Corollary to his reliance on the absence of force or
intimidation, he asseverates in his brief that the absence of resistance from
Jinky suffices to hold that the sexual intercourse was voluntary. The defense
then begs for this Court's liberality in considering that Jinky was moved to
engage in copulation by a spirit of adventurousness.

There is no doubt that the appellant had carnal knowledge of his two
daughters. The fact of sexual intercourse was indubitably shown by the
testimonies of the complainants, the medical report and testimony of Dr.
Fontanares, and even by the alternative submission of appellant that his
sexual intercourse with Jinky was consensual. Clinging to his vain hope for
acquittal, he then claims that the element of force or intimidation essential in
rape is lacking in the cases filed against him.

In direct refutation of appellant's theory, we once again declare that in

incestuous rape, it is not necessary that actual force and intimidation be
employed. It is sufficient that the accused exercised a pervasive influence
and control over the victim.42 Even if there was no violence employed in the
sexual congress, the moral influence of appellant over the complainant
suffices to constitute it into the crime of rape.43

In People vs. Mabunga,44 where we convicted the accused for raping his
thirteen-year old daughter, we held that:

. . . Hence, even assuming that force or intimidation had not been actually
employed, the crime of rape was nevertheless committed. The absence of
violence or offer of resistance would not be significant because of the
overpowering and overbearing moral influence of the father over the daughter
which takes the place of violence and offer of resistance required in rape
cases committed by an accused having no blood relationship with the victim.

The rationale for such a ruling can be found in our discourse in People vs.
Matrimonio45 to the effect that:

In a rape committed by a father against his own daughter, the former's moral
ascendancy and influence over the latter substitutes for violence or
intimidation. That ascendancy or influence necessarily flows from the father's
parental authority, which the Constitution and the laws recognize, support and
enhance, as well as from the children's duty to obey and observe reverence
and respect towards their parents. Such reverence and respect are deeply
ingrained in the minds of Filipino children and are recognized by law. Abuse
of both by a father can subjugate his daughter's will, thereby forcing her to do
whatever he wants.

Thus two forms of intimidation under Article 335 of the Revised Penal Code
were recognized in Matrimonio, that is (1) threats and (2) overpowering moral
influence. Accused-appellant exercised such moral influence over herein
complainants. Being the victims' father, accused-appellant had that moral
ascendancy and influence over his daughters which, in itself, was sufficient to
intimidate and force them to submit to his desires.46 The fact that no
resistance was offered by Jinky did not in any way qualify the coitus as freely
consented to by her. Judging accused-appellant's threats and intimidation in
the context of Jinky's understanding at the time of the rape, it can readily be
concluded that her will to resist was overcome by her father's strong parental
authority.

As we held in the aforecited case of Mabunga, in rape the manner, form and
tenacity of resistance of the victim therein are dependent on a number of
factors, among which are the age and size of the victim, as well as of the
aggressor himself; the degree of actual force and intimidation employed; and,
of utmost importance, the relationship between the rapist and his prey.
Complementary thereto, we ruled in People vs. Navarrete47 that —

It must be emphasized also that considering the relationship between father

and daughter, the degree of force or intimidation need not be the same as in
other cases of rape where the parties involved have no relationship at all with
each other; because the father exercises strong moral and physical control
over his daughter.

Parenthetically, we digress to observe that for rape to exist it is not necessary

that the intimidation employed be so great or of such character as could not
be resisted. It is only necessary that the intimidation be sufficient to
consummate the purpose which the accused had in mind. Intimidation must
be viewed in light of the victim's perception and judgment at the time of rape
and not by any hard and fast rule. It is therefore enough that it produces fear
— fear that if the victim does not yield to the bestial demands of the accused,
something would happen to her at the moment or thereafter, as when she is
threatened with death if she reports the incident. Intimidation would also
explain why there are no traces of struggle which would indicate that the
victim fought off her attacker.48

With the previous beatings Jinky received from accused-appellant, resistance

could not have been expected from her. She dared not risk another whipping
from her father should she defy his advances. Coupled with the respect
demanded from Jinky by her father no matter how unreasoning, the gap
between their ages, and Jinky's own youthful immaturity, the lack or
resistance from Jinky becomes easily understandable. And, if resistance
would after all be futile because of continuing intimidation, as in the strong
moral dominance of accused-appellant, then offering none at all would not
mean consent to the assault as to make the victim's participation in the
sexual act voluntary.49

The insistence of accused-appellant that Jinky consented to his advances is

downright ridiculous. It is hard to believe that a daughter would simply give in
to her father's lascivious designs had not her resistance been
overpowered.50 If Jinky had consented to the sexual intercourse, she would
have kept it to herself and not denounce it immediately as rape. Jinky's crying
during the sexual act, and her evasion of her father's advances the following
day, belie his pretense that she voluntarily participated in the intercourse.
There is no showing whatsoever that complainant Jinky is a sexually
perverted woman or one of extremely loose morals.

Consent obtained by fear of personal violence is no consent at all. Though a

man puts no hand on a woman, yet if by the use of mental and moral
coercion the accused so overpowers her mind out of fear that as a result she
dare not resist the dastardly act inflicted on her person, accused is guilty of
the crime imputed to him. 51 On the other hand, it is hard to accept that Jinky
was that audacious as to seek and satisfy worldly pleasures from her own
father. To cite Navarrete again, no daughter in her right mind would
voluntarily submit herself to her own father unless there was force or
intimidation, as a sexual act between a father and a daughter is extremely
revolting.

On the matter of the imposable penalties in the crime of rape when attended
by modifying circumstances, it is opportune to make some clarifications in
light of succeeding amendments to Article 335 of the Code. With respect to
simple rape, whether in the original codal provision or after the amendments
thereto, the penalty being the single indivisible penalty of reclusion perpetua
is not affected by the presence of ordinary mitigating or aggravating
circumstances. However, under the amendments introduced by Republic Act
No. 4111 consisting of the so-called "qualified" form of rape committed with
the use of a deadly weapon or by two or more persons, or when an attempted
or frustrated rape is accompanied by homicide, for which the penalty is
reclusion perpetua to death, the presence of generic mitigating or aggravating
circumstances will determine whether the lesser or the higher penalty will be
imposed.52

Republic Act No. 7659 has added seven more attendant circumstances
which, in effect also create other variants of "qualified" rape punishable with
the single indivisible penalty of death. In line with the immediately preceding
observation, the presence of ordinary mitigating or aggravating circumstances
would be of no moment since the death penalty shall be imposed regardless
of the number of any of them.53 The only possible basis for a reduction of
such penalty under the rules for graduating penalties under the Code is the
presence of a privileged mitigating circumstance.54

Now, it used to be the accepted doctrine that in crimes against chastity, such
as rape, relationship was always aggravating.55 However, among the
"qualifying" circumstances introduced by Republic Act No. 7659 is the
situation when the victim is under eighteen years of age and the offender is a
parent, ascendant, step-parent, guardian, relative by consanguinity or affinity
within the third civil degree, or the common-law spouse of the parent of the
victim. Obviously, in such a factual milieu, relationship having been used as
an element in that "qualified" form of rape, the same circumstance cannot be
used again to aggravate the penalty to be imposed on the offender.56

In the case at bar, therefore, relationship cannot be applied as an aggravating

circumstance. However, we are persuaded to affirm the attendance of
intoxication as an aggravating circumstance on the additional finding that it
was habitual on the part of accused-appellant. Indeed, he admitted in his
memorandum57 that he took liquor to forget the memory of his wife ever
since she died on August 28, 1991. Such admission, together with the
declarations of his daughters and his own testimony in court that he was also
inebriated on the two occasions when he separately raped the victims,
reasonably yields the inference that accused-appellant was a habitual
drunkard.

Yet, even on the remote assumption ex gratia argument that intoxication can
be considered as a mitigating circumstance in his favor, its presence would
not affect the two penalties imposed by the court below. Being indivisible
penalties, reclusion perpetua and death must be applied by the courts
regardless of any mitigating or aggravating circumstances that may have
attended the commission of the deed. The rule, however, is slightly different
with respect to the civil liability.

On this point, we note that the lower court did not award moral and exemplary
damages to either Jacqueline or Jinky Tabugoca. Having suffered wounded
feelings and social humiliation,58 Jacqueline is entitled to an award of moral
damages therefor.59 In view of the presence of an aggravating circumstance,
exemplary damages should also be awarded to her.60 An appellate
proceeding in a criminal case, whether at the instance of the accused or by
mandatory provision of law, throws the whole case open for review, hence
this modification by reason of the oversight of the trial court.

On the other hand, while Jinky is entitled to actual or compensatory damages,

no moral damages may be awarded to her because no sufficient evidence
was introduced in the court a quo which would have entitled her thereto.61
However, exemplary damages call be awarded to her since she has been
correctly granted compensatory damages and the offense against her was
committed with an aggravating circumstance.62

WHEREFORE, the judgment of Branch 18 of the Regional Trial Court of

Ilagan, Isabela, in Criminal Cases Nos. 2386 and 2387 is hereby AFFIRMED,
with the modification that accused-appellant Cresencio Tabugoca is further
ordered (1) in Criminal Case No. 2386, to pay Jacqueline Tabugoca the
additional amounts of P25,000.00 as moral damages and P25,000.00 as
exemplary damages; and (2) in Criminal Case No. 2387, to pay Jinky
Tabugoca the further amount of P25,000.00 by way of exemplary damages.
Two Members of the Court voted to impose on appellant the penalty of
reclusion perpetua.

In accordance with Article 83 of the Revised Penal Code, as amended by

Section 25 of Republic Act No. 7659, upon the finality or this decision, let the
records of this case be forwarded immediately to the Office of the President
of the Philippines for possible exercise of the pardoning power.

SO ORDERED.
G.R. No. L-54135 November 21, 1991

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
POLICARPIO RAFANAN, JR., defendant-appellant.

The Solicitor General for plaintiff-appellee.

Causapin, Millar & Tutana Law Office for defendant-appellant.

FELICIANO, J.:

Policarpio Rafanan, Jr. appeals from a decision of the then Court of First
Instance of Pangasinan convicting him of the crime of rape and sentencing
him to reclusion perpetua, to indemnify complainant Estelita Ronaya in the
amount of P10,000.00 by way of moral damages, and to pay the costs.

The facts were summarized by the trial court in the following manner:

The prosecution's evidence shows that on February 27, 1976, complainant

Estelita Ronaya who was then only fourteen years old was hired as a
househelper by the mother of the accused, Ines Rafanan alias "Baket Ines"
with a salary of P30.00 a month.

The accused Policarpio Rafanan and his family lived with his mother in the
same house at Barangay San Nicholas, Villasis, Pangasinan. Policarpio was
then married and had two children.

On March 16, 1976, in the evening, after dinner, Estelita Ronaya was sent by
the mother of the accused to help in their store which was located in front of
their house about six (6) meters away. Attending to the store at the time was
the accused. At 11:00 o'clock in the evening, the accused called the
complainant to help him close the door of the store and as the latter complied
and went near him, he suddenly pulled the complainant inside the store and
said, "Come, let us have sexual intercourse," to which Estelita replied, "I do
not like," and struggled to free herself and cried. The accused held a bolo
measuring 1-1/2 feet including the handle which he pointed to the throat of
the complainant threatening her with said bolo should she resist. Then, he
forced her to lie down on a bamboo bed, removed her pants and after
unfastening the zipper of his own pants, went on top of complainant and
succeeded having carnal knowledge of her inspite of her resistance and
struggle. After the sexual intercourse, the accused cautioned the complainant
not to report the matter to her mother or anybody in the house, otherwise he
would kill her.
Because of fear, the complainant did not immediately report the matter and
did not leave the house of the accused that same evening. In fact, she slept
in the house of the accused that evening and the following morning she
scrubbed the floor and did her daily routine work in the house. She only left
the house in the evening of March 17, 1976.

Somehow, in the evening of March 17, 1976, the family of the accused
learned what happened the night before in the store between Policarpio and
Estelita and a quarrel ensued among them prompting Estelita Ronaya to go
back to her house. When Estelita's mother confronted her and asked her why
she went home that evening, the complainant could not answer but cried and
cried. It was only the following morning on March 18, 1976 that the
complainant told her mother that she was raped by the accused. Upon
knowing what happened to her daughter, the mother Alejandra Ronaya,
immediately accompanied her to the house of Patrolman Bernardo Mairina of
the Villasis Police Force who lives in Barrio San Nicolas, Villasis, Pangasinan.
Patrolman Mairina is a cousin of the father of the complainant. He advised
them to proceed to the municipal building while he went to fetch the accused.
The accused was later brought to the police headquarter with the bolo,
Exhibit "E", which the accused allegedly used in threatening the complainant.
1

At arraignment, appellant entered a plea of not guilty. The case then

proceeded to trial and in due course of time, the trial court, as already noted,
convicted the appellant.

The instant appeal is anchored on the following:

Assignment of Errors

1. The lower court erred in basing its decision of conviction of appellant solely
on the testimony of the complainant and her mother.

2. The lower court erred in considering the hearsay evidence for the
prosecution, "Exhibits B and C".

3. The lower court erred in not believing the testimony of the expert
witnesses, as to the mental condition of the accused-appellant at the time of
the alleged commission of the crime of rape.

4. The lower court erred in convicting appellant who at the time of the
alleged rape was suffering from insanity. 2
Appellant first assails the credibility of complainant as well as of her mother
whose testimonies he contends are contradictory. It is claimed by appellant
that the testimony of complainant on direct examination that she immediately
went home after the rape incident, is at variance with her testimony on cross
examination to the effect that she had stayed in the house of appellant until
the following day. Complainant, in saying that she left the house of appellant
by herself, is also alleged to have contradicted her mother who stated that
she (the mother) went to the store in the evening of 17 March 1979 and
brought Estelita home.

The apparently inconsistent statements made by complainant were clarified

by her on cross examination. In any case, the inconsistencies related to minor
and inconsequential details which do not touch upon the manner in which the
crime had been committed and therefore did not in any way impair the
credibility of the complainant. 3

The commission of the came was not seriously disputed by appellant. The
testimony of complainant in this respect is clear and convincing:

Fiscal Guillermo:

Q Now, we go back to that time when according to you the accused pulled
you from the door and brought you inside the store after you helped him
closed the store. Now, after the accused pulled you from the door and
brought you inside the store what happened then?

A "You come and we will have sexual intercourse," he said.

Q And what did you say?

A "I do not like," I said.

Q And what did you do, if any, when you said you do not like to have sexual
intercourse with him?

A I struggled and cried.

Q What did the accused do after that?

A He got a knife and pointed it at my throat so I was frightened and he could

do what he wanted to do. He was able to do what he wanted to do.

Q This "kutsilyo" you were referring to or knife, how big is that knife? Will you
please demonstrate, if any?
A This length, sir. (Which parties agreed to be about one and one-half [1-1/2]
feet long.)

xxx xxx xxx

Fiscal Guillermo:

Q Now, you said that the accused was able to have sexual intercourse with
you after he placed the bolo or that knife [at] your throat. Now, will you please
tell the court what did the accused do immediately after placing that bolo your
throat and before having sexual intercourse you?

A He had sexual intercourse with me.

Q What was your wearing apparel that evening?

A I was wearing pants, sir.

Q Aside from the pants, do you have any underwear?

A Yes, sir, I have a panty.

Q Now, before the accused have sexual intercourse with you what, if any, did
he do with respect to your pants and your panty?

A He removed them, sir.

Q Now, while he was removing your pants and your panty what, if any, did
you do?

A I continued to struggle so that he could not remove my pants but he was

stronger that's why he succeeded.

Q Now, after he had removed your panty and your pants or pantsuit what else
happened?

A He went on top of me, sir.

Q At the time what was the accused wearing by way of apparel?

A He was wearing pants.

Q When you said he went on top of you after he has removed your pantsuit
and your panty, was he still wearing his pants?
A He unbuttoned his pants and unfastened the zipper of his pants.

Q And after he unbuttoned and unfastened his pants what did you see which
he opened?

A I saw his penis.

Q Now, you said that after the accused has unzipped his pants and brought
out his penis which you saw, he went on top of you. When he was already on
top of you what did you do, if any?

A I struggled.

Q Now, you said that you struggled. What happened then when you struggled
against the accused when he was on top of you?

A Since he was stronger, he succeeded doing what he wanted to get.

xxx xxx xxx

COURT:

Alright, what do you mean by he was able to succeed in what he wanted to

get?

Fiscal Guillermo:

Considering the condition of the witness, your honor, with tears, may we just
be allowed to ask a leading question which is a follow-up question?

Witness:

A He inserted his private part inside my vagina.

Fiscal Guillermo:

Q Now, when he inserted his private part inside your vagina what did you
feel, if any?

A I felt something that came out from his inside.

Q Now, how long, if you remember, did the accused have his penis inside
your vagina:?

A Around five minutes maybe, sir.

Q After that what happened then?

A He removed it.

Q After the accused has removed his penis from your vagina what else
happened?

A No more, sir, he sat down.

Q What, if any, did he tell you?

A There was, sir. He told me not to report the matter to my

mother and to anybody in their house.

Q What else did he tell you?

A He told me that if I told anyone what happened, he will kill me.

Q After that where did you go?

A I went home already, sir. 4

The principal submission of appellant is that he was suffering from a metal

aberration characterized as schizophrenia when he inflicted his violent
intentions upon Estelita. At the urging of his counsel, the trial court
suspended the trial and ordered appellant confined at the National Mental
Hospital in Mandaluyong for observation and treatment. In the meantime, the
case was archived. Appellant was admitted into the hospital on 29 December
1976 and stayed there until 26 June 1978.

During his confinement, the hospital prepared four (4) clinical reports on the
mental and physical condition of the appellant, all signed by Dr. Simplicio N.
Masikip and Dr. Arturo E. Nerit, physician-in-charge and chief, Forensic
Psychiatry Service, respectively.

In the first report dated 27 January 1977, the following observations

concerning appellant's mental condition were set forth:

On admission he was sluggish in movements, indifferent to interview, would

just look up whenever questioned but refused to answer.

On subsequent examinations and observations he was carelessly attired, with

dishevelled hair, would stare vacuously through the window, or look at people
around him. He was indifferent and when questioned, he would just smile
inappropriately. He refused to verbalize, even when persuaded, and was
emotionally dull and mentally inaccessible. He is generally seclusive, at times
would pace the floor, seemingly in deep thought. Later on when questioned
his frequent answers are "Aywan ko, hindi ko alam." His affect is dull, he
claimed to hear strange voices "parang ibon, tinig ng ibon," but cannot
elaborate. He is disoriented to 3 spheres and has no idea why he was
brought here.

The report then concluded:

In view of the foregoing examinations and observations, Policarpio Rafanan,

Jr. y Gambawa is found suffering from a mental disorder called
schizophrenia, manifested by carelessness in grooming, sluggishness in
movements, staring vacuously, indifferen[ce], smiling inappropriately, refusal
to verbalize, emotional dullness, mental inaccessibility, seclusiveness,
preoccupation, disorientation, and perceptual aberrations of hearing strange
sounds. He is psychotic or insane, hence cannot stand court trial. He needs
further hospitalization and treatment. 5

The second report, dated 21 June 1977, contained the following description
of appellant's mental condition:

At present he is still seclusive, undertalkative and retarded in his reponses.

There is dullness of his affect and he appeared preoccupied. He is observed
to mumble alone by himself and would show periods of being irritable saying
— "oki naman" with nobody in particular. He claim he does not know whether
or not he was placed in jail and does not know if he has a case in court. Said
he does not remember having committed any wrong act

and the following conclusions:

In view of the foregoing examinations and observations Policarpio Rafanan,

Jr. y Gambawa is at present time still psychotic or insane, manifested by
periods of irritability — cursing nobody in particular, seclusive, underactive,
undertalkative, retarded in his response, dullness of his affect, mumbles
alone by himself, preoccupied and lack of insight.

He is not yet in a condition to stand court trial. He needs further

hospitalization and treatment. 6

In the third report, dated 5 October 1977, appellant was described as having
become "better behaved, responsive" and "neat in person," and "adequate in
his emotional tone, in touch with his surroundings and . . . free from
hallucinatory experiences." During the preceding period, appellant had been
allowed to leave the hospital temporarily; he stayed with a relative in Manila
while coming periodically to the hospital for check-ups. During this period, he
was said to have been helpful in the doing of household chores, conversed
and as freely with other members of the household and slept well, although,
occasionally, appellant smiled while alone. Appellant complained that at times
he heard voices of small children, talking in a language he could not
understand. The report concluded by saying that while appellant had
improved in his mental condition, he was not yet in a position to stand trial
since he needed further treatment, medication and check-ups. 7

In the last report dated 26 June 1978, appellant was described as behaved,
helpful in household chores and no longer talking while alone. He was said to
be "fairly groomed" and "oriented" and as denying having hallucinations. The
report concluded that he was in a "much improved condition" and "in a mental
condition to stand court trial." 8

Trial of the case thus resumed. The defense first presented Dr. Arturo Nerit
who suggested that appellant was sick one or two years before his admission
into the hospital, in effect implying that appellant was already suffering from
schizophrenia when he raped complainant. 9 The defense next presented
Raquel Jovellano, a psychiatrist engaged in private practice, who testified that
she had examined and treated the appellant.

Appellant's plea of insanity rests on Article 12 of the Revised Penal Code

which provides:

Art. 12. Circumstances which exempt from criminal liability. —

The following are exempt from criminal liability:

1. An imbecile or an insane person, unless the latter has acted during a lucid
interval.

Where the imbecile or an insane person has committed an act which the law
defines as a felony (delito), the court shall order his confinement in one of the
hospitals or asylums established for persons thus afflicted, which he shall not
be permitted to leave without first obtaining the permission of the same court.

xxx xxx xxx

Although the Court has ruled many times in the past on the insanity defense,
it was only in People vs. Formigones 10 that the Court elaborated on the
required standards of legal insanity, quoting extensively from the
Commentaries of Judge Guillermo Guevara on the Revised Penal Code,
thus:
The Supreme Court of Spain held that in order that this exempting
circumstance may be taken into account, it is necessary that there be a
complete deprivation of intelligence in committing the act, that is, that the
accused be deprived of reason; that there be no responsibility for his own
acts; that he acts without the least discernment; (Decision of the Supreme
Court of Spain of November 21, 1891; 47 Jur. Crim. 413.) that there be a
complete absence of the power to discern, (Decision of the Supreme Court of
Spain of April 29, 1916; 96 Jur. Crim. 239) or that there be a total deprivation
of freedom of the will. (Decision of the Supreme Court of Spain of April 9,
1872; 6 Jur. Crim. 239) For this reason, it was held that the imbecility or
insanity at the time of the commission of the act should absolutely deprive a
person of intelligence or freedom of will, because mere abnormality of his
mental faculties does not exclude imputability. (Decision of the Supreme
Court of Spain of April 20, 1911; 86 Jur. Crim. 94, 97.)

The Supreme Court of Spain likewise held that deaf-muteness cannot be

[equated with] imbecility or insanity.

The allegation of insanity or imbecility must be clearly proved. Without

positive evidence that the defendant had previously lost his reason or was
demented, a few moments prior to or during the perpetration of the crime, it
will be presumed that he was in a normal condition. Acts penalized by law are
always reputed to be voluntary, and it is improper to conclude that a person
acted unconsciously, in order to relieve him from liability, on the basis of his
mental condition, unless his insanity and absence of will are proved.
(Emphasis supplied.)

The standards set out in Formigones were commonly adopted in subsequent

cases. 11 A linguistic or grammatical analysis of those standards suggests
that Formigones established two (2) distinguishable tests: (a) the test of
cognition — "complete deprivation of intelligence in committing the [criminal]
act," and (b) the test of volition — "or that there be a total deprivation freedom
of the will." But our caselaw shows common reliance on the test of cognition,
rather than on a test relating to "freedom of the will;" examination of our
caselaw has failed to turn up any case where this Court has exempted an
accused on the sole ground that he was totally deprived of "freedom of the
will," i.e., without an accompanying "complete deprivation of intelligence."
This is perhaps to be expected since a person's volition naturally reaches out
only towards that which is presented as desirable by his intelligence, whether
that intelligence be diseased or healthy. In any case, where the accused
failed to show complete impairment or loss of intelligence, the Court has
recognized at most a mitigating, not an exempting, circumstance in accord
with Article 13(9) of the Revised Penal Code: "Such illness of the offender as
would diminish the exercise of the will-power of the offender without however
depriving him of the consciousness of his acts." 12

Schizophrenia pleaded by appellant has been described as a chronic mental

disorder characterized by inability to distinguish between fantasy and reality,
and often accompanied by hallucinations and delusions. Formerly called
dementia praecox, it is said to be the most common form of psychosis an
usually develops between the ages 15 and 30. 13 A standard textbook in
psychiatry describes some of the symptoms of schizophrenia in the following
manner:

Eugen Bleuler later described three general primary symptoms of

schizophrenia: a disturbance of association, a disturbance of affect, and a
disturbance of activity. Bleuler also stressed the dereistic attitude of the
schizophrenic — that is, his detachment from reality and consequent autism
and the ambivalence that expresses itself in his uncertain affectivity and
initiative. Thus, Bleuler's system of schizophrenia is often referred to as the
four A's: association, affect, autism, and ambivalence.

xxx xxx xxx

Kurt Schneider described a number of first-rank symptoms of schizophrenia

that he considered in no way specific for the disease but of great pragmatic
value in making a diagnosis. Schneider's first-rank symptoms include the
hearing of one's thoughts spoken aloud, auditory hallucinations that comment
on the patient's behavior, somatic hallucinations, the experience of having
one's thoughts controlled, the spreading of one's thoughts to others,
delusions, and the experience of having one's actions controlled or influenced
from the outside.

Schizophrenia, Schneider pointed out, also can be diagnosed exclusively on

the basis of second-rank symptoms, along with an otherwise typical clinical
appearances. Second-rank symptoms include other forms of hallucination,
perplexity, depressive and euphoric disorders of affect, and emotional
blunting.

Perceptual Disorders

Various perceptual disorders occur in schizophrenia . . . .

Hallucinations. Sensory experiences or perceptions without corresponding

external stimuli are common symptoms of schizophrenia. Most common are
auditory hallucinations, or the hearing of voices. Most characteristically, two
or more voices talk about the patient, discussing him in the third person.
Frequently, the voices address the patient, comment on what he is doing and
what is going on around him, or are threatening or obscene and very
disturbing to the patient. Many schizophrenic patients experience the hearing
of their own thoughts. When they are reading silently, for example, they may
be quite disturbed by hearing every word they are reading clearly spoken to
them.

Visual hallucinations occur less frequently than auditory hallucinations in

schizophrenic patients, but they are not rare. Patients suffering from organic
of affective psychoses experience visual hallucinations primarily at night or
during limited periods of the day, but schizophrenic patients hallucinate as
much during the day as they do during the night, sometimes almost
continuously. They get relief only in sleep. When visual occur in
schizophrenia, they are usually seen nearby, clearly defined, in color, life
size, in three dimensions, and moving. Visual hallucinations almost never in
one of the other sensory modalities.

xxx xxx xxx

Cognitive Disorders

Delusions. By definition, delusions are false ideas that cannot be corrected by

reasoning, and that are idiosyncratic for the patient — that is, not part of his
cultural environment. They are among the common symptoms of
schizophrenia.

Most frequent are delusions of persecution, which are the key symptom in the
paranoid type of schizophrenia. The conviction of being controlled by some
unseen mysterious power that exercises its influence from a distance is
almost pathognomonic for schizophrenia. It occurs in most, if not all,
schizophrenics at one time or another, and for many it is a daily experience.
The modern schizophrenic whose delusions have kept up with the scientific
times may be preoccupied with atomic power, X-rays, or spaceships that take
control over his mind and body. Also typical for
many schizophrenics are delusional fantasies about the destruction of the
world. 14

In previous cases where schizophrenia was interposed as an exempting

circumtance, 15 it has mostly been rejected by the Court. In each of these
cases, the evidence presented tended to show that if there was impairment of
the mental faculties, such impairment was not so complete as to deprive the
accused of intelligence or the consciousness of his acts.

The facts of the instant case exhibit much the same situation. Dr. Jovellano
declared as follows:
(Fiscal Guillermo:)

Q Now, this condition of the accused schizophrenic as you found him,

would you say doctor that he was completely devoid of any consciousness of
whatever he did in connection with the incident in this case?

A He is not completely devoid of consciousness.

Q Would you say doctor, therefore, that he was conscious of threatening

the victim at the time of the commission of the alleged rape?

A Yes, he was conscious.

Q And he was conscious of forcing the victim to lie down?

A Yes.

Q And he was also conscious of removing the panty of the victim at the
time?

A Yes.

Q And he was also conscious and knows that the victim has a vagina
upon which he will place his penis?

A Yeah.

Q And he was conscious enough to be competent and have an erection?

A Yes.

Q Would you say that those acts of a person no matter whether he is

schizophrenic which you said, it deals (sic) some kind of intelligence and
consciousness of some acts that is committed?

A Yes, it involves the consciousness because the consciousness there in

relation to the act is what we call primitive acts of any individual. The
difference only in the act of an insane and a normal individual, a normal
individual will use the power of reasoning and consciousness within the
standard of society while an insane causes (sic) already devoid of the fact
that he could no longer withstand himself in the ordinary environment, yet his
acts are within the bound of insanity or psychosis.
Q Now, Doctor, of course this person suffering that ailment which you said
the accused here is suffering is capable of planning the commission of a
rape?

A Yes, they are also capable.

Q He is capable of laying in wait in order to assault?

A Yes.

Q And would you say that condition that ability of a person to plan a rape and
to perform all the acts preparatory to the actual intercourse could be done by
an insane person?

A Yes, it could be done.

Q Now, you are talking of insanity in its broadest sense, is it not?

A Yes, sir.

Q Now, is this insane person also capable of knowing what is right and
what is wrong?

A Well, there is no weakness on that part of the individual. They may

know what is wrong but yet there is no inhibition on the individual.

Q Yes, but actually, they are mentally equipped with knowledge that an
act they are going to commit is wrong?

A Yeah, they are equipped but the difference is, there is what we call they
lost the inhibition. The reasoning is weak and yet they understand but the
volition is [not] there, the drive is [not]
there. 16 (Emphasis supplied)

The above testimony, in substance, negates complete destruction of

intelligence at the time of commission of the act charged which, in the current
state of our caselaw, is critical if the defense of insanity is to be sustained.
The fact that appellant Rafanan threatened complainant Estelita with death
should she reveal she had been sexually assaulted by him, indicates, to the
mind of the Court, that Rafanan was aware of the reprehensible moral quality
of that assault. The defense sought to suggest, through Dr. Jovellano's last
two (2) answers above, that person suffering from schizophrenia sustains not
only impairment of the mental faculties but also deprivation of there power
self-control. We do not believe that Dr. Jovellano's testimony, by itself,
sufficiently demonstrated the truth of that proposition. In any case, as already
pointed out, it is complete loss of intelligence which must be shown if the
exempting circumstance of insanity is to be found.

The law presumes every man to be sane. A person accused of a crime has
the burden of proving his affirmative allegation of insanity. 17 Here, appellant
failed to present clear and convincing evidence regarding his state of mind
immediately before and during the sexual assault on Estelita. It has been held
that inquiry into the mental state of the accused should relate to the period
immediately before or at the very moment the act is committed. 18 Appellant
rested his case on the testimonies of two (2) physicians (Dr. Jovellano and
Dr. Nerit) which, however, did not purport to characterize his mental condition
during that critical period of time. They did not specifically relate to
circumtances occurring on or immediately before the day of the rape. Their
testimonies consisted of broad statements based on general behavioral
patterns of people afflicted with schizophrenia. Curiously, while it was Dr.
Masikip who had actually observed and examined appellant during his
confinement at the National Mental Hospital, the defense chose to present Dr.
Nerit.

Accordingly, we must reject the insanity defense of appellant Rafanan.

In People vs. Puno (supra), the Court ruled that schizophrenic reaction,
although not exempting because it does not completely deprive the offender
of the consciousness of his acts, may be considered as a mitigating
circumstance under Article 13(9) of the Revised Penal Code, i.e., as an
illness which diminishes the exercise of the offender's will-power without,
however, depriving him of the consciousness of his acts. Appellant should
have been credited with this mitigating circumstance, although it would not
have affected the penalty imposable upon him under Article 63 of the Revised
Penal Code: "in all cases in which the law prescribes a single indivisible
penalty (reclusion perpetua in this case), it shall be applied by the courts
regardless of any mitigating or aggravating circumstances that may have
attended the commission of the deed."

WHEREFORE, the Decision appealed from is hereby AFFIRMED, except that

the amount of moral damages is increased to P30,000.00. Costs against
appellant.

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

G.R. No. L-45130 February 17, 1937

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
CELESTINO BONOAN Y CRUZ, defendant-appellant.

Paulino Sevilla, Fernando Arce and Gaudencio Garcia for appellant.

Undersecretary of Justice for appellee.

LAUREL, J.:

On January 5, 1935, the prosecuting attorney of the City of Manila filed an

information charging Celestino Bonoan, the defendant-appellant herein, with
the crime of murder, committed as follows:

That on or about the 12th day of December, 1934, in the City of Manila,
Philippine Islands, the said accused, with evident premeditation and
treachery, did then and there willfully, unlawfully and feloniously, without any
justifiable motive and with the decided purpose to kill one Carlos Guison,
attack, assault and stab the said Carlos Guison on the different parts of his
body with a knife, thereby inflicting upon him the following injuries, to wit:

"One stab wound at the right epigastric region penetrating one cm. into the
superior surace of the right lobe of the liver; and three non-penetrating stab
wounds located respectively at the posterior and lateral lumbar region, and
left elbow", which directly caused the death of the said Carlos Guison three
days afterwards.

On January 16, 1935, the case was called for the arraignment of the accused.
The defense counsel forthwith objected to the arraignment on the ground that
the defendant was mentally deranged and was at the time confined in the
Psychopatic Hospital. The court thereupon issued an order requiring the
Director of the Hospital to render a report on the mental condition of the
accused. Accordingly, Dr. Toribio Joson, assistant alientist, rendered his
report,Exhibit 4, hereinbelow incorporated. On March 23, 1935, the case was
again called for the arraignment of the accused, but in view of the objection of
the fiscal, the court issued another order requiring the doctor of the
Psyhopatic Hospital who examined the defendant to appear and produce the
complete record pertaining to the mental condition of the said defendant.
Pursuant to this order, Dr. Toribio Joson appeared before the court on March
26, 1935 for the necessary inquiry. Thereafter, the prosecution and the
defense asked the court to summon the other doctors of the hospital for
questioning as to the mental condition of the accused, or to place the latter
under a competent doctor for a closer observation. The trial court then issued
an order directing that the accused be placed under the chief alienist or an
assistant alienist of the Psychopatic Hospital for his personal observation and
the subsequent submission of a report as to the true mental condition of the
patient. Dr. Jose A. Fernandez, assistant alienist of the Psychopathic
Hospital, rendered his report, Exhibit 5, on June 11, 1935. On June 28, 1935,
the case was called again. Dr. Fernandez appeared before the court and
ratified his report, Exhibit 5, stating that the accused was not in a condition to
defend himself. In view thereof, the case was suspended indefinitely.

On January 21, 1936, Dr. Dr. Fernandez reported to the court that the
defendant could be discharged from the hospital and appear for trial, as he
was "considered a recovered case." Summoned by the court, Dr. Fernandez,
appeared and testified that the accused "had recovered from the disease."
On February 27, 1936, the accused was arraigned, pleaded "not guilty" and
trial was had.

After trial, the lower court found the defendant guilty of the offense charged in
the information above-quoted and sentenced him to life imprisonment, to
indemnify the heirs of the deceased in the sum of P1,000, and to pay the
costs.

The defendant now appeals to this court and his counsel makes the following
assignment of errors:

A. The court a quo erred in finding that the evidence establishes that the
accused has had dementia only occasionally and intermittently and has not
had it immediately prior to the commission of the defense.

B. The court a quo erred in finding that the evidence in this case further
shows that during and immediately after the commission of the offense, the
accused did not show any kind of abnormality either in behavior, language
and appearance, or any kind of action showing that he was mentally
deranged.

C. The court a quo erred in declaring that under the circumstances that
burden was on the defense to show hat the accused was mentally deranged
at the time of the commission of the offense, and that the defense did not
establish any evidence to this effect.

D. The court a quo in finding the accused guilty of the offense charged and in
not acquitting him thereof.

It appears that in the morning of December 12, 1934, the defendant Celestino
Bonoan met the now deceased Carlos Guison on Avenida Rizal near a
barbershop close to Tom's Dixie Kitchen. Francisco Beech, who was at the
time in the barbershop, heard the defendant say in Tagalog, "I will kill you."
Beech turned around and saw the accused withdrawing his right hand, which
held a knife, from the side of Guison who said, also in Tagalog, "I will pay
you", but Bonoan replied saying that he would kill him and then stabbed
Guison thrice on the left side. The assaultt was witnessed by policeman
Damaso Arnoco who rushed to the scene and arrested Bonoan and took
possession of the knife, Exhibit A. Guison was taken to the Philippine General
Hospital where he died two days later. Exhibit C is the report of the autopsy
performed on December 15, 1934, by Dr. Sixto de los Angeles.

As the killing of the deceased by the defendant-appellant is admitted, it does

not seem necessary to indulge in any extended analysis of the testimony of
the witnesses for the prosecution. The defense set up being that of insanity,
the only question to be determined in this appeal is whether or not the
defendant-appellant was insane at the time of the commission of the crime
charged.

On the question of insanity as a defense in criminal cases, and the incidental

corollaries as to the legal presumption and the kind and quantum of evidence
required, theories abound and authorities are in sharp conflict. Stated
generally, courts in the United States proceed upon three different theories.
(See Herzog, Alfred W., Medical Jurisprudence [1931], sec. 655 et seq., p.
479 et seq.; also Lawson, Insanity in Criminal Cases, p. 11 et seq.) The first
view is that insanity as a defense in a confession and avoidance and as must
be proved beyond reasonable doubt when the commission of a crime is
established, and the defense of insanity is not made out beyond a reasonable
doubt, conviction follows. In other words, proof of insanity at the time of
committing the criminal act should be clear and satisfactory in order to acquit
the accused on the ground of insanity (Hornblower, C. J., in State vs.
Spencer, 21 N. J. L., 196). The second view is that an affirmative verdict of
insanity is to be governed by a preponderance of evidence, and in this view,
insanity is not to be established beyond a reasonable doubt. According to
Wharton in his "Criminal Evidence" (10th ed.,vol. I, sec. 338), this is the rule
in England (Reg. vs. Layton, 4 Cox, C. C., 149; Reg. vs. Higginson, 1 Car. &
K., 130), and in Alabama, Arkansas, California, Georgia, Idaho, Iowa,
Kentucky, Louisiana, Maine, Massachusetts, Michigan, Minnesota, Missouri,
Nevada, New Jersey, New York, North Carolina, Ohio, Pennsylvania, South
Carolina, Texas, Virginia and West Virginia. The third view is that the
prosecution must prove sanity beyond a reasonable doubt (Dais vs. United
States, 160 U. S. 496; 40 Law. ed., 499; 16 Sup. Ct. Rep., 353; Hotema vs.
United States, 186 U. S., 413; 46 Law. ed., 1225; 22 Sup. Ct. Rep., 895;
United States vs. Lancaster, 7 Biss., 440; Fed. Cas. No. 15,555; United
States vs. Faulkner, 35 Fed., 730). This liberal view is premised on the
proposition that while it is true that the presumption of sanity exists at the
outset, the prosecution affirms every essential ingredients of the crime
charged, and hence affirms sanity as one essential ingredients, and that a
fortiori where the accused introduces evidence to prove insanity it becomes
the duty of the State to prove the sanity of the accused beyond a reasonable
doubt.

In the Philippines, we have approximated the first and stricter view (People
vs. Bacos [1922], 44 Phil., 204). The burden, to be sure, is on the prosecution
to prove beyond a reasonable doubt that the defendant committed the crime,
but insanity is presumed, and ". . . when a defendant in a criminal case
interposes the defense of mental incapacity, the burden of establishing that
fact rests upon him. . . ." (U. S. vs. Martinez [1916], 34 Phil., 305, 308, 309;
U. S. vs. Bascos, supra.) We affirm and reiterate this doctrine.

In the case at bar, the defense interposed being that the defendant was
insane at the time he killed the deceased, the obligation of proving that
affirmative allegation rests on the defense. Without indulging in fine
distinctions as to the character and degree of evidence that must be
presented sufficiently convincing evidence, direct or circumstantial, to a
degree that satisfies the judicial mind that the accused was insane at the time
of the perpetration of the offense? In order to ascertain a person's mental
condition at the time of the act, it is permissible to receive evidence of the
condition of his mind a reasonable period both before and after that time.
Direct testimony is not required (Wharton, Criminal Evidence, p. 684; State
vs. Wright, 134 Mo., 404; 35 S. W., 1145; State vs. Simms, 68 Mo., 305;
Rinkard vs. State, 157 Ind., 534; 62 N. E., 14; People vs. Tripler, I Wheeler,
Crim. Cas., 48), nor are specific acts of derangement essential (People vs.
Tripler, supra) to established insanity as a defense. Mind can only be known
by outward acts. Thereby, we read the thoughts, the motives and emotions of
a person and come to determine whether his acts conform to the practice of
people of sound mind. To prove insanity, therefore, cicumstantial evidence, if
clear and convincing, suffice (People vs. Bascos [1922], 44 Phil., 204).

The trial judge arrived at the conclusion that the defendantwas not insane at
the time of the commission of the act for which he was prosecuted on the
theory that the insanity was only occassional or intermittent and not
permanentor continuous (32 C. J., sec. 561, p. 757). We are appraised of the
danger of indulging in the preseumption ofcontinuity in cases of temporary or
spasmodic insanity.We appreciate the reason forthe contrary rule. To be
sure, courts should be careful to distinguish insanity in law from passion or
eccentricity, mental weakness or mere depression resulting from physical
ailment. The State should guard against sane murderers escaping
punishment through a general plea of insanity. In the case at bar, however,
we are not cconcerned with connecting two or more attacks of insanity to
show the continuance thereof during the intervening period or periods but
with the continuity of a particular and isolated attack prior to the commission
of the crime charged, and ending with a positive diagnosis of insanity
immediately following the commission of the act complained of. Upon the
other hand, there are facts and circumstances of record which can not be
overlooked.The following considerations have weighed heavily upon the
minds of the majority of this court in arriving at a conclusion different from that
reached by the court below:.

(a) From the evidence presented by the defense, uncontradicted by the

prosecution, it appears that the herein defendant-appellant, during the
periods from April 11 to April 26, 1922, and from January 6 to January 10,
1926, was confined in the insane department of the San Lazaro Hospital
suffering from a disease diagnosed as dementia præcox. His confinement
during these periods, it is true, was long before the commission of the offense
on December 12, 1934, but this is a circumstance which tends to show that
the recurrence of the ailment at the time of the occurence of the crime is not
entirely lacking of any rational or scientific foundation.

(b) All persons suffering from dementia præcox are clearly to be regarded as
having mental disease to a degree that disqualifies them for legal
responsibility for their actions (Mental Disorder in Medico-Legal Relations by
Dr. Albert M. Barrett in Peterson, Haines and Webster, Legal Medicine and
Toxology, vol. I, p. 613). According to Dr. Elias Domingo, chief alienist of the
Insular Psychopathic Hospital, the symptoms of dementia præcox, in certain
peeriods of excitement, are similar to those of manic depresive psychosis (p.
19, t. s. n.) and, in either case, the mind appears "deteriorated" because,
"when a person becomes affected by this kind of disease, either dementia
præcox or manic depresive psychosis, during the period of excitement, he
has no control whatever of his acts." (P. 21, t. s. n.) Even if viewed under the
general medico-legal classification of manic-depressive insanity, "it is largely
in relation with the question of irrestible impulse that forensic relations of
manic actions will have to be considered. There is in this disorder a
pathologic lessening or normal inhibitions and the case with which impulses
may lead to actions impairs deliberations and the use of normal checks to
motor impulses" (Peterson, Haines and Webster, Legal Medicine and
Toxology [2d ed., 1926], vol, I, p. 617).

(c) According to the uncontradicted testimony of Dr. Celedonio S. Francisco,

at one time an interne at San LazaroHospital, for four (4) days immediately
preceding December 12, 1934 — the date when the crime was committed —
the defendant and appellant had "an attack of insomnia", which is one of the
symptoms of, and may lead to, dementia præcox (Exhibit 3, defense
testimony of Dr. Celedonio S. Francisco, pp. 13, 14, t. s. n.).

(d) The defendant-appellant appears to have been arrested and taken to the
police station on the very same day of the perpetration of the crime, and
although attempted were made by detectives to secure a statement from him
(see Exhibit B and D and testimony of Charles Strabel, t. s. n. pp. 9, 10) he
was sent by the police department to the Psychopathic Hospital the day
following the commission of the crime. This is an indication that the police
authorities themselves doubted the mental normalcy of the acused, which
doubt found confirmation in the official reports submitted by the specialists of
the San Lazaro Hospital.

(e) According to the report (Exhibit 4) of the alienist in charge, Dr. Toribio
Joson, which report was made within the first month of treatment, the
defendant was suffering from a form of psychosis, called manic depressive
psychosis.We quote the report in full:

INSULAR PSYCHOPATIC HOSPITAL

MANDALUYONG, RIZAL

January 15, 1935.

MEMORANDUM FOR: The chief Alienist, Insular Psychopatic

Hospital, Mandaluyong, Rizal.
SUBJECT: Patient Celestino Bonoan, male,
Filipino, 30 years old, sent by the
Secret Service of the City of Manila
for mental examinition.
1. MENTAL STATUS:

(a) General behavior. — The patient is undetective, staying most of the time
in his bed with his eyes closed and practically totally motionless. At other
times, however, but on very rare occassions and at short intervals he
apparently wakes up and then he walks around, and makes signs and
ritualistic movements with the extremities and other parts of the body.
Ordinarily he takes his meal but at times he refuses to take even the food
offered by his mother or sister, so that there have been days in the hospital
when he did not take any nourishment. On several occassions he refused to
have the bath, or to have his hair cut and beard shaved, and thus appear
untidy. He would also sometimes refuse his medicine, and during some of the
intervals he displayed impulsive acts, such as stricking his chest or other
parts of the body with his fists and at one time after a short interview, he
struck strongly with his fist the door of the nurse's office without apparent
motivation. He also sometimes laughs, or smiles, or claps his hands strongly
without provocation.

(b) Stream of talk. — Usually the patient is speechless, can't be persuaded to

speak, and would not answer in any form the questions propounded to him.
Very often he is seen with his eyes closed apparently praying as he was
mumbling words but would not answer at all when talked to. At one time he
was seen in this condition with a cross made of small pieces of strick in his
hand. He at times during the interviews recited passages in the literature as
for example the following.

"La virtud y las buenas costumbres son la verdadera nobleza del hombre.
(Truthfulness, honesty and loyalty are among the attributes of a dependable
character.)"

At one time he tried to recite the mass in a very loud voice in the hospital.

(c) Mood. — Patient is usually apathetic and indifferent but at times he looks
anxious and rather irritable. He himself states that the often feels said in the
hospital.

(d) Orientation. — During the periods that he was acccessible he was found
oriented as to place and person but he did not know the day or the date.

(e) Illusion and hallucination. — The patient states that during the nights that
he could not sleep he could hear voices telling him many things. Voices, for
example, told that he should escape. That he was going to be killed because
he was benevolet. That he could sometimes see the shadow of his former
sweetheart in the hospital. There are times however when he could not hear
or see at all anything.

(f ) Delusion and misinterpretation. — On one occassion he told the examiner

that he could not talk in his first day in the hospital because of a mass he felt
he had in his throat. He sometimes thinks that he is already dead and already
buried in the La Loma Cemetery.

(g) Compulsive phenomena. — None.

(h) Memory. — The patient has a fairly good memory for remote events, but
his memory for recent events or for example, for events that took place during
his stay in the hospital he has no recollection at all.

(i) Grasp of general informartion. — He has a fairly good grasp of general

information. He could not, however, do simple numerial tests as the 100-7
test.

( j) Insight and judgment. — At his fairly clear periods he stated that he might
have been insane during his first days in the hospital, but just during the
interview on January 14, 1935, he felt fairly well. Insight and judgment were,
of course, nil during his stuporous condition. During the last two days he has
shown marked improvement in his behavior as to be cooperative, and
coherent in his speech.
2. OPINION AND DIAGNOSIS:

The patient during his confinement in the hospital has been found suffering
from a form of physchosis, called Manic depressive psychosis.

(Sgd.) TORIBIO JOSON, M. D.

Assistant Alienist

In the subsequent report, dated June 11, 1935 (Exhibit 5), filed by Dr. Jose A.
Fernandez, another assistant alienist in the Insular Pshychopatic Hospital, the
following conclusion was reached:

I am of the opinion that actually this patient is sick. He is suffering from the
Manic Depressive form of psychosis. It might be premature to state before the
court has decided this case, but I believe it a duty to state, that this person is
not safe to be at large. He has a peculiar personality make-up, a personality
lacking in control, overtly serious in his dealings with the every day events of
this earthly world, taking justice with his own hands and many times
executing it in an impulsive manner as to make his action over proportionate
— beyond normal acceptance. He is sensitive, overtly religious, too idealistic
has taste and desires as to make him queer before the average conception of
an earthly man.

He will always have troubles and difficulaties with this world of realities.

(Sgd.) J. A. Fernandez, M. D.
Assistant Alienist

To prove motive and premeditation and, indirectly, mental normlacy of the

accused at the time of the commission of the crime, the prosecution called on
policeman Damaso Arnoco. Arnoco testified that upon arresting the
defendant-appellant he inquired from the latter for the reason for the assault
and the defendant-appellant replied that the deceased Guison owed him P55
and would pay; that appellant bought the knife, Exhibit A, for 55 centavos in
Tabora Street and that for two days he had been watching for Guison in order
to kill him (pp. 5, 6, t. s. n.). Benjamin Cruz, a detective, was also called and
corroborated the testimony of policeman Arnoco. That such kind of evidence
is not necessarily proof of the sanity of the accused during the commission of
the offense, is clear from what Dr. Sydney Smith, Regius Professor of
Forensic Medicine, University of Edinburg, said in his work on Forensic
Medicine (3d ed. [London], p. 382), that in the type of dementia præcox, "the
crime is ussually preceded by much complaining and planning. In these
people, homicidal attcks are common, because of delusions that they are
being interfered with sexually or that their property is being taken."
In view of the foregoing, we are of the opinion that the defendant-appellant
was demented at the time he perpetrated the serious offense charged in the
information and that conseuently he is exempt from criminal liability.
Accordingly, the judgment of the lower court is hereby reversed, and the
defendant-appellant acquitted, with costs de oficio in both instances. In
conforminty with paragraph 1 of article 12 of the Revised Penal Code, the
defendant shall kept in confinement in the San Lazaro Hospital or such other
hospital for the insane as may be desiganted by the Director of the Philippine
Health Service, there to remain confined until the Court of First Instance of
Manila shall otherwise order or decree. So ordered.

Avanceña, C.J., Villa-Real and Abad Santos, JJ., concur.

G.R. No. 151085 August 20, 2008

JOEMAR ORTEGA, petitioner,

vs.
PEOPLE OF THE PHILIPPINES, respondent.

DECISION

NACHURA, J.:

Before this Court is a Petition1 for Review on Certiorari under Rule 45 of the
Rules of Civil Procedure seeking the reversal of the Court of Appeals (CA)
Decision2 dated October 26, 2000 which affirmed in toto the Decision3 of the
Regional Trial Court (RTC) of Bacolod City, Branch 50, dated May 13, 1999,
convicting petitioner Joemar Ortega4 (petitioner) of the crime of Rape.

The Facts

Petitioner, then about 14 years old,5 was charged with the crime of Rape in
two separate informations both dated April 20, 1998, for allegedly raping
AAA,6 then about eight (8) years of age. The accusatory portions thereof
respectively state:

Criminal Case No. 98-19083

That sometime in August, 1996, in the Municipality of XXX, Province of YYY,

Philippines, and within the jurisdiction of this Honorable Court, the above-
named accused, by means of force, violence and intimidation, did then and
there, (sic) willfully, unlawfully and feloniously (sic) had carnal knowledge of
and/or sexual intercourse with the said AAA, a minor, then about 6 years old,
against her will.

CONTRARY TO LAW.7

Criminal Case No. 98-19084

That on or about the 1st day of December, 1996, in the Municipality of XXX,
Province of YYY, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, by means of force, violence and
intimidation, did then and there, (sic) willfully, unlawfully and feloniously (sic)
had carnal knowledge of and/or sexual intercourse with the said AAA, a
minor, then about 6 years old, against her will.

CONTRARY TO LAW.8
Upon arraignment on September 10, 1998, petitioner pleaded not guilty to the
offense charged.9 Thus, trial on the merits ensued. In the course of the trial,
two varying versions arose.

Version of the Prosecution

On February 27, 1990, AAA was born to spouses FFF and MMM.10 Among
her siblings CCC, BBB, DDD, EEE and GGG, AAA is the only girl in the
family. Before these disturbing events, AAA's family members were close
friends of petitioner's family, aside from the fact that they were good
neighbors. However, BBB caught petitioner raping his younger sister AAA
inside their own home. BBB then informed their mother MMM who in turn
asked AAA.11 There, AAA confessed that petitioner raped her three (3) times
on three (3) different occasions.

The first occasion happened sometime in August 1996. MMM left her
daughter AAA, then 6 years old and son BBB, then 10 years old, in the care
of Luzviminda Ortega12 (Luzviminda), mother of petitioner, for two (2) nights
because MMM had to stay in a hospital to attend to her other son who was
sick.13 During the first night at petitioner's residence, petitioner entered the
room where AAA slept together with Luzviminda and her daughter. Petitioner
woke AAA up and led her to the sala. There petitioner raped AAA. The
second occasion occurred the following day, again at the petitioner's
residence. Observing that nobody was around, petitioner brought AAA to their
comfort room and raped her there. AAA testified that petitioner inserted his
penis into her vagina and she felt pain. In all of these instances, petitioner
warned AAA not to tell her parents, otherwise, he would spank her.14 AAA
did not tell her parents about her ordeal.

The third and last occasion happened in the evening of December 1, 1996.
Petitioner went to the house of AAA and joined her and her siblings in
watching a battery-powered television. At that time, Luzviminda was
conversing with MMM. While AAA's siblings were busy watching, petitioner
called AAA to come to the room of CCC and BBB. AAA obeyed. While inside
the said room which was lighted by a kerosene lamp, petitioner pulled AAA
behind the door, removed his pants and brief, removed AAA's shorts and
panty, and in a standing position inserted his penis into the vagina of AAA.15
AAA described petitioner's penis as about five (5) inches long and the size of
two (2) ballpens. She, likewise, narrated that she saw pubic hair on the base
of his penis.16

This last incident was corroborated by BBB in his testimony. When BBB was
about to drink water in their kitchen, as he was passing by his room, BBB was
shocked to see petitioner and AAA both naked from their waist down in the
act of sexual intercourse. BBB saw petitioner holding AAA and making a
pumping motion. Immediately, BBB told petitioner to stop; the latter, in turn,
hurriedly left. Thereafter, BBB reported the incident to his mother, MMM.17

MMM testified that when she asked AAA about what BBB saw, AAA told her
that petitioner inserted his fingers and his penis into her vagina. MMM learned
that this was not the only incident that petitioner molested AAA as there were
two previous occasions. MMM also learned that AAA did not report her ordeal
to them out of fear that petitioner would spank her. MMM testified that when
BBB reported the matter to her, petitioner and Luzviminda already left her
house. After waiting for AAA's brothers to go to sleep, MMM, with a heavy
heart, examined AAA's vagina and she noticed that the same was reddish
and a whitish fluid was coming out from it. Spouses FFF and MMM were not
able to sleep that night. The following morning, at about four o'clock, MMM
called Luzviminda and petitioner to come to their house. MMM confronted
Luzviminda about what petitioner did to her daughter, and consequently, she
demanded that AAA should be brought to a doctor for examination.18

MMM, together with Luzviminda, brought AAA to Dr. Lucifree Katalbas19 (Dr.
Katalbas), the Rural Health Officer of the locality who examined AAA and
found no indication that she was molested.20 Refusing to accept such
findings, on December 12, 1996, MMM went to Dr. Joy Ann Jocson (Dr.
Jocson), Medical Officer IV of the Bacolod City Health Office. Dr. Jocson
made an unofficial written report21 showing that there were "abrasions on
both right and left of the labia minora and a small laceration at the posterior
fourchette." She also found that the minor injuries she saw on AAA's genitals
were relatively fresh; and that such abrasions were superficial and could
disappear after a period of 3 to 4 days. Dr. Jocson, however, indicated in her
certification that her findings required the confirmation of the Municipal Health
Officer of the locality.

Subsequently, an amicable settlement22 was reached between the two

families through the DAWN Foundation, an organization that helps abused
women and children. Part of the settlement required petitioner to depart from
their house to avoid contact with AAA.23 As such, petitioner stayed with a
certain priest in the locality. However, a few months later, petitioner went
home for brief visits and in order to bring his dirty clothes for laundry. At the
sight of petitioner, AAA's father FFF was infuriated and confrontations
occurred. At this instance, AAA's parents went to the National Bureau of
Investigation (NBI) which assisted them in filing the three (3) counts of rape.
However, the prosecutor's office only filed the two (2) instant cases.

Version of the Defense

Petitioner was born on August 8, 1983 to spouses Loreto (Loreto) and

Luzviminda Ortega.24 He is the second child of three siblings ― an elder
brother and a younger sister. Petitioner denied the accusations made against
him. He testified that: his parents and AAA's parents were good friends; when
MMM left AAA and her brothers to the care of his mother, petitioner slept in a
separate room together with BBB and CCC while AAA slept together with
Luzviminda and his younger sister; he never touched or raped AAA or
showed his private parts to her; petitioner did not threaten AAA in any
instance; he did not rape AAA in the former's comfort room, but he merely
accompanied and helped AAA clean up as she defecated and feared the
toilet bowl; in the process of washing, he may have accidentally touched
AAA's anus; on December 1, 1996, petitioner together with his parents, went
to AAA's house;25 they were dancing and playing together with all the other
children at the time; while they were dancing, petitioner hugged and lifted
AAA up in a playful act, at the instance of which BBB ran and reported the
matter to MMM, who at the time was with Luzviminda, saying that petitioner
and AAA were having sexual intercourse;26 petitioner explained to MMM that
they were only playing, and that he could not have done to AAA what he was
accused of doing, as they were together with her brothers, and he treated
AAA like a younger sister;27 BBB was lying; AAA's parents and his parents
did not get angry at him nor did they quarrel with each other; petitioner and
his parents peacefully left AAA's house at about nine o'clock in the evening;
however, at about four o'clock in the morning, petitioner and his parents were
summoned by MMM to go to the latter's house; upon arriving there they saw
BBB being maltreated by his father as AAA pointed to BBB as the one who
molested her; and MMM and Luzviminda agreed to bring AAA to a doctor for
examination.28

Luzviminda corroborated the testimony of her son. She testified that: her son
was a minor at the time of the incident; CCC and BBB were the children of
MMM in her first marriage, while AAA and the rest of her siblings were of the
second marriage; CCC and BBB are half-brothers of AAA; when MMM
entrusted AAA and her brothers to her sometime in August of 1996, she slept
with AAA and her youngest daughter in a separate room from petitioner; on
December 1, 1996, she was at AAA's house watching television and
conversing with MMM, while FFF and Loreto were having a drinking spree in
the kitchen; from where they were seated, she could clearly see all the
children, including petitioner and AAA, playing and dancing in the dining area;
she did not hear any unusual cry or noise at the time; while they were
conversing, BBB came to MMM saying that petitioner and AAA were having
sexual intercourse; upon hearing such statement, Luzviminda and MMM
immediately stood up and looked for them, but both mothers did not find
anything unusual as all the children were playing and dancing in the dining
area; Luzviminda and MMM just laughed at BBB's statement; the parents of
AAA, at that time, did not examine her in order to verify BBB's statement nor
did they get angry at petitioner or at them; and they peacefully left AAA's
house. However, the following day, MMM woke Luzviminda up, saying that
FFF was spanking BBB with a belt as AAA was pointing to BBB nor to
petitioner as the one who molested her. At this instance, Luzviminda
intervened, telling FFF not to spank BBB but instead, to bring AAA to a doctor
for examination. Luzviminda accompanied MMM to Dr. Katalbas who found
no indication that AAA was molested. She also accompanied her to Dr.
Jocson. After getting the results of the examination conducted by Dr. Jocson,
they went to the police and at this instance only did Luzviminda learn that
MMM accused petitioner of raping AAA. Petitioner vehemently denied to
Luzviminda that he raped AAA. Thereafter, MMM and Luzviminda went to
their employer who recommended that they should seek advice from the
Women's Center. At the said Center, both agreed on an amicable settlement
wherein petitioner would stay away from AAA. Thus, petitioner stayed with a
certain priest in the locality for almost two (2) years. But almost every
Saturday, petitioner would come home to visit his parents and to bring his
dirty clothes for laundry. Every time petitioner came home, FFF bad-mouthed
petitioner, calling him a rapist. Confrontations occurred until an altercation
erupted wherein FFF allegedly slapped Luzviminda. Subsequently, AAA's
parents filed the instant cases.29

The RTC's Ruling

On May 13, 1999, the RTC held that petitioner's defenses of denial cannot
prevail over the positive identification of petitioner as the perpetrator of the
crime by AAA and BBB, who testified with honesty and credibility. Moreover,
the RTC opined that it could not perceive any motive for AAA's family to
impute a serious crime of Rape to petitioner, considering the close relations
of both families. Thus, the RTC disposed of this case in this wise:

FOR ALL THE FOREGOING, the Court finds the accused Joemar Ortega Y
Felisario GUILTY beyond reasonable doubt as Principal by Direct
Participation of the crime of RAPE as charged in Criminal Cases Nos. 98-
19083 and 98-19084 and there being no aggravating or mitigating
circumstance, he is sentenced to suffer the penalty of Two (2) Reclusion
Temporal in its medium period. Applying the Indeterminate Sentence Law,
the accused shall be imprisoned for each case for a period of Six (6) years
and One (1) day of Prision Mayor, as minimum, to Fifteen (15) years of
Reclusion Temporal, as maximum. The accused is condemned to pay the
offended party AAA, the sum of P100,000.00 as indemnification for the two
(2) rapes (sic).

Aggrieved, petitioner appealed the RTC Decision to the CA.30

Taking into consideration the age of petitioner and upon posting of the
corresponding bail bond for his provisional liberty in the amount of
P40,000.00, the RTC ordered the petitioner's release pending appeal.31
The CA's Ruling

On October 26, 2000, the CA affirmed in toto the ruling of the RTC, holding
that the petitioner's defense of denial could not prevail over the positive
identification of the petitioner by the victim AAA and her brother BBB, which
were categorical, consistent and without any showing of ill motive. The CA
also held that the respective medical examinations conducted by the two
doctors were irrelevant, as it is established that the slightest penetration of
the lips of the female organ consummates rape; thus, hymenal laceration is
not an element of rape. Moreover, the CA opined that petitioner acted with
discernment as shown by his covert acts. Finally, the CA accorded great
weight and respect to the factual findings of the RTC, particularly in the
evaluation of the testimonies of witnesses.

Petitioner filed his Motion for Reconsideration32 of the assailed Decision

which the CA denied in its Resolution33 dated November 7, 2001.

Hence, this Petition based on the following grounds:

I.

THE HONORABLE COURT OF APPEALS HAS OVERLOOKED CERTAIN

FACTS OF SUBSTANCE AND VALUE WHICH IF CONSIDERED MIGHT
AFFECT THE RESULT OF THE CASE.

II.

THE HONORABLE COURT OF APPEALS COMMITTED GRAVE ERROR

WHEN IT FAILED TO APPRECIATE THE MEDICAL FINDINGS OF DR.
LUCIFREE KATALBAS.

III.

THE FINDINGS OF THE LOWER COURT, AFFIRMED BY THE APPELLATE

COURT, THAT PETITIONER-APPELLANT IN FACT COMMITTED AND IS
CAPABLE OF COMMITTING THE ALLEGED RAPE WITHIN THE
RESIDENCE OF THE VICTIM WHERE SEVERAL OF THE ALLEGED
VICTIM'S FAMILY MEMBERS AND THEIR RESPECTIVE MOTHERS WERE
PRESENT IS IMPROBABLE AND CONTRARY TO HUMAN EXPERIENCE.

IV.

THE HONORABLE APPELLATE COURT ERRED IN UPHOLDING THE

FACTS SET FORTH BY THE ALLEGED VICTIM REGARDING THE
CIRCUMSTANCES ATTENDING THE COMMISSION OF RAPE SOMETIME
IN AUGUST 1996.34

Petitioner argues that, while it is true that the factual findings of the CA are
conclusive on this Court, we are not prevented from overturning such findings
if the CA had manifestly overlooked certain facts of substance and value
which if considered might affect the result of the case. Petitioner stresses that
from the testimonies of AAA and BBB, it can be deduced that penetration was
achieved; thus, AAA felt pain. Petitioner contends that assuming the
allegations of AAA are true that petitioner inserted his fingers and his penis
into her vagina, certainly such acts would leave certain abrasions, wounds
and/or lacerations on the genitalia of AAA, taking into consideration her age
at the time and the alleged size of petitioner's penis. However, such
allegation is completely belied by the medical report of Dr. Katalbas who, one
day after the alleged rape, conducted a medical examination on AAA and
found that there were no signs or indications that AAA was raped or
molested. Petitioner submits that the CA committed a grave error when it
disregarded such medical report since it disproves the allegation of the
existence of rape and, consequently, the prosecution failed to prove its case;
thus, the presumption of innocence in favor of the petitioner subsists.
Moreover, petitioner opines that like AAA, petitioner is also a child of the
barrio who is innocent, unsophisticated and lacks sexual experience. As
such, it is incredible and contrary to human reason that a 13- year-old boy
would commit such act in the very dwelling of AAA, whose reaction to pain, at
the age of six, could not be controlled or subdued. Petitioner claims that
poverty was MMM's motive in filing the instant case, as she wanted to extort
money from the parents of the petitioner. Petitioner points out that the
medical report of Dr. Jocson indicated that the abrasions that were inflicted
on the genitalia of AAA were relatively fresh and the same could disappear
within a period of 3 to 4 days. Considering that Dr. Jocson conducted the
medical examination on December 12, 1996, or after the lapse of eleven (11)
days after the alleged incident of rape, and that AAA's parents only filed the
instant case after almost a year, in order to deter Luzviminda from filing a
case of slander by deed against FFF, it is not inconceivable that MMM
inflicted said abrasions on AAA to prove their case and to depart from the
initial confession of AAA that it was actually BBB who raped her. Finally,
petitioner submits that AAA and BBB were merely coached by MMM to
fabricate these stories.35

On the other hand, respondent People of the Philippines through the Office of
the Solicitor General (OSG) contends that: the arguments raised by the
petitioner are mere reiterations of his disquisitions before the CA; the RTC, as
affirmed by the CA, did not rely on the testimonies of both doctors since
despite the absence of abrasions, rape is consummated even with the
slightest penetration of the lips of the female organ; what is relevant in this
case is the reliable testimony of AAA that petitioner raped her in August and
December of 1996; even in the absence of force, rape was committed
considering AAA's age at that time; as such, AAA did not have any ill motive
in accusing petitioner; and it is established that the crime of rape could be
committed even in the presence of other people nearby. Moreover, the OSG
relies on the doctrine that the evaluation made by a trial court is accorded the
highest respect as it had the opportunity to observe directly the demeanor of
a witness and to determine whether said witness was telling the truth or not.
Lastly, the OSG claims that petitioner acted with discernment when he
committed the said crime, as manifested in his covert acts.36

However, Republic Act (R.A.) No. 9344,37 or the Juvenile Justice and
Welfare Act of 2006, was enacted into law on April 28, 2006 and it took effect
on May 20, 2006.38 The law establishes a comprehensive system to manage
children in conflict with the law39 (CICL) and children at risk40 with child-
appropriate procedures and comprehensive programs and services such as
prevention, intervention, diversion, rehabilitation, re-integration and after-care
programs geared towards their development. In order to ensure its
implementation, the law, particularly Section 841 thereof, has created the
Juvenile Justice and Welfare Council (JJWC) and vested it with certain duties
and functions42 such as the formulation of policies and strategies to prevent
juvenile delinquency and to enhance the administration of juvenile justice as
well as the treatment and rehabilitation of the CICL. The law also

provides for the immediate dismissal of cases of CICL, specifically Sections

64, 65, 66, 67 and 68 of R.A. No. 9344's Transitory Provisions.43

The said Transitory Provisions expressly provide:

Title VIII
Transitory Provisions

SECTION 64. Children in Conflict with the Law Fifteen (15) Years Old and
Below. — Upon effectivity of this Act, cases of children fifteen (15) years old
and below at the time of the commission of the crime shall immediately be
dismissed and the child shall be referred to the appropriate local social
welfare and development officer. Such officer, upon thorough assessment of
the child, shall determine whether to release the child to the custody of
his/her parents, or refer the child to prevention programs, as provided under
this Act. Those with suspended sentences and undergoing rehabilitation at
the youth rehabilitation center shall likewise be released, unless it is contrary
to the best interest of the child.

SECTION 65. Children Detained Pending Trial. — If the child is detained

pending trial, the Family Court shall also determine whether or not continued
detention is necessary and, if not, determine appropriate alternatives for
detention. If detention is necessary and he/she is detained with adults, the
court shall immediately order the transfer of the child to a youth detention
home.

SECTION 66. Inventory of "Locked-up" and Detained Children in Conflict with

the Law. — The PNP, the BJMP and the BUCOR are hereby directed to
submit to the JJWC, within ninety (90) days from the effectivity of this Act, an
inventory of all children in conflict with the law under their custody.

SECTION 67. Children Who Reach the Age of Eighteen (18) Years Pending
Diversion and Court Proceedings. — If a child reaches the age of eighteen
(18) years pending diversion and court proceedings, the appropriate diversion
authority in consultation with the local social welfare and development officer
or the Family Court in consultation with the Social Services and Counseling
Division (SSCD) of the Supreme Court, as the case may be, shall determine
the appropriate disposition. In case the appropriate court executes the
judgment of conviction, and unless the child in conflict with the law has
already availed of probation under Presidential Decree No. 603 or other
similar laws, the child may apply for probation if qualified under the provisions
of the Probation Law.

SECTION 68. Children Who Have Been Convicted and are Serving
Sentences. — Persons who have been convicted and are serving sentence at
the time of the effectivity of this Act, and who were below the age of eighteen
(18) years at the time of the commission of the offense for which they were
convicted and are serving sentence, shall likewise benefit from the retroactive
application of this Act. They shall be entitled to appropriate dispositions
provided under this Act and their sentences shall be adjusted accordingly.
They shall be immediately released if they are so qualified under this Act or
other applicable laws.

Ostensibly, the only issue that requires resolution in this case is whether or
not petitioner is guilty beyond reasonable doubt of the crime of rape as found
by both the RTC and the CA. However, with the advent of R.A. No. 9344
while petitioner's case is pending before this Court, a new issue arises,
namely, whether the pertinent provisions of R.A. No. 9344 apply to
petitioner's case, considering that at the time he committed the alleged rape,
he was merely 13 years old.

In sum, we are convinced that petitioner committed the crime of rape against
AAA. In a prosecution for rape, the complainant's candor is the single most
important factor. If the complainant's testimony meets the test of credibility,
the accused can be convicted solely on that basis.44 The RTC, as affirmed
by the CA, did not doubt AAA's credibility, and found no ill motive for her to
charge petitioner of the heinous crime of rape and to positively identify him as
the malefactor. Both courts also accorded respect to BBB's testimony that he
saw petitioner having sexual intercourse with his younger sister. While
petitioner asserts that AAA's poverty is enough motive for the imputation of
the crime, we discard such assertion for no mother or father like MMM and
FFF would stoop so low as to subject their daughter to the tribulations and the
embarrassment of a public trial knowing that such a traumatic experience
would damage their daughter's psyche and mar her life if the charge is not
true.45 We find petitioner's claim that MMM inflicted the abrasions found by
Dr. Jocson in the genitalia of AAA, in order to extort money from petitioner’s
parents, highly incredible. Lastly, it must be noted that in most cases of rape
committed against young girls like AAA who was only 6 years old then, total
penetration of the victim's organ is improbable due to the small vaginal
opening. Thus, it has been held that actual penetration of the victim's organ
or rupture of the hymen is not required.46 Therefore, it is not necessary for
conviction that the petitioner succeeded in having full penetration, because
the slightest touching of the lips of the female organ or of the labia of the
pudendum constitutes rape.47

However, for one who acts by virtue of any of the exempting circumstances,
although he commits a crime, by the complete absence of any of the
conditions which constitute free will or voluntariness of the act, no criminal
liability arises.48 Therefore, while there is a crime committed, no criminal
liability attaches. Thus, in Guevarra v. Almodovar,49 we held:

[I]t is worthy to note the basic reason behind the enactment of the exempting
circumstances embodied in Article 12 of the RPC; the complete absence of
intelligence, freedom of action, or intent, or on the absence of negligence on
the part of the accused. In expounding on intelligence as the second element
of dolus, Albert has stated:

"The second element of dolus is intelligence; without this power, necessary to

determine the morality of human acts to distinguish a licit from an illicit act, no
crime can exist, and because . . . the infant (has) no intelligence, the law
exempts (him) from criminal liability."

It is for this reason, therefore, why minors nine years of age and below are
not capable of performing a criminal act.

In its Comment50 dated April 24, 2008, the OSG posited that petitioner is no
longer covered by the provisions of Section 64 of R.A. No. 9344 since as
early as 1999, petitioner was convicted by the RTC and the conviction was
affirmed by the CA in 2001. R.A. No. 9344 was passed into law in 2006, and
with the petitioner now approximately 25 years old, he no longer qualifies as a
child as defined by R.A. No. 9344. Moreover, the OSG claimed that the
retroactive effect of Section 64 of R.A. No. 9344 is applicable only if the child-
accused is still below 18 years old as explained under Sections 67 and 68
thereof. The OSG also asserted that petitioner may avail himself of the
provisions of Section 3851 of R.A. No. 9344 providing for automatic
suspension of sentence if finally found guilty. Lastly, the OSG argued that
while it is a recognized principle that laws favorable to the accused may be
given retroactive application, such principle does not apply if the law itself
provides for conditions for its application.

We are not persuaded.

Section 6 of R.A. No. 9344 clearly and explicitly provides:

SECTION 6. Minimum Age of Criminal Responsibility. — A child fifteen (15)

years of age or under at the time of the commission of the offense shall be
exempt from criminal liability. However, the child shall be subjected to an
intervention program pursuant to Section 20 of this Act.

A child above fifteen (15) years but below eighteen (18) years of age shall
likewise be exempt from criminal liability and be subjected to an intervention
program, unless he/she has acted with discernment, in which case, such child
shall be subjected to the appropriate proceedings in accordance with this Act.

The exemption from criminal liability herein established does not include
exemption from civil liability, which shall be enforced in accordance with
existing laws.

Likewise, Section 64 of the law categorically provides that cases of children

15 years old and below, at the time of the commission of the crime, shall
immediately be dismissed and the child shall be referred to the appropriate
local social welfare and development officer (LSWDO). What is controlling,
therefore, with respect to the exemption from criminal liability of the CICL, is
not the CICL's age at the time of the promulgation of judgment but the CICL's
age at the time of the commission of the offense. In short, by virtue of R.A.
No. 9344, the age of criminal irresponsibility has been raised from 9 to 15
years old.52

Given this precise statutory declaration, it is imperative that this Court accord
retroactive application to the aforequoted provisions of R.A. No. 9344
pursuant to the well-entrenched principle in criminal law - favorabilia sunt
amplianda adiosa restrigenda. Penal laws which are favorable to the accused
are given retroactive effect.53 This principle is embodied in Article 22 of the
Revised Penal Code, which provides:
Art. 22. Retroactive effect of penal laws. — Penal laws shall have a
retroactive effect insofar as they favor the persons guilty of a felony, who is
not a habitual criminal, as this term is defined in Rule 5 of Article 62 of this
Code, although at the time of the publication of such laws, a final sentence
has been pronounced and the convict is serving the same.

We also have extant jurisprudence that the principle has been given
expanded application in certain instances involving special laws.54 R.A. No.
9344 should be no exception.

In fact, the legislative intent for R.A. No. 9344's retroactivity is even patent
from the deliberations on the bill in the Senate, quoted as follows:

Sections 67-69 On Transitory Provisions

Senator Santiago. In Sections 67 to 69 on Transitory Provisions, pages 34 to

35, may I humbly propose that we should insert, after Sections 67 to 69, the
following provision:

ALL CHILDREN WHO DO NOT HAVE CRIMINAL LIABILITY UNDER THIS

LAW PENDING THE CREATION OF THE OFFICE OF JUVENILE
WELFARE AND RESTORATION (OJWR) AND THE LOCAL COUNCIL FOR
THE PROTECTION OF CHILDREN (LCPC) WITHIN A YEAR, SHALL BE
IMMEDIATELY TRANSFERRED TO DSWD INSTITUTIONS, AND DSWD
SHALL UNDERTAKE DIVERSION PROGRAMS FOR THEM, PRIORITIZING
THE YOUNGER CHILDREN BELOW 15 YEARS OF AGE AND THE
LIGHTER OFFENSES.

The only question will be: Will the DSWD have enough facilities for these
adult offenders?

Senator Pangilinan, Mr. President, according to the CWC, the DSWD does
not have the capability at the moment. It will take time to develop the
capacity.

Senator Santiago. Well, we can say that they shall be transferred whenever
the facilities are ready.

Senator Pangilinan. Yes. Mr. President, just a clarification. When we speak

here of children who do not have criminal liability under this law, we are
referring here to those who currently have criminal liability, but because of the
retroactive effect of this measure, will now be exempt. It is quite confusing.

Senator Santiago. That is correct.

Senator Pangilinan. In other words, they should be released either to their
parents or through a diversion program, Mr. President. That is my
understanding.

Senator Santiago. Yes, that is correct. But there will have to be a process of
sifting before that. That is why I was proposing that they should be given to
the DSWD, which will conduct the sifting process, except that apparently, the
DSWD does not have the physical facilities.

Senator Pangilinan. Mr. President, conceptually, we have no argument. We

will now have to just craft it to ensure that the input raised earlier by the good
Senator is included and the capacity of the DSWD to be able to absorb these
individuals. Likewise, the issue should also be incorporated in the
amendment.

The President. Just a question from the Chair. The moment this law becomes
effective, all those children in conflict with the law, who were convicted in the
present Penal Code, for example, who will now not be subject to incarceration
under this law, will be immediately released. Is that the understanding?

Senator Pangilinan. Yes, Mr. President.

Senator Santiago. They would immediately fall under . . . .

Senator Pangilinan. The diversion requirements, Mr. President.

Senator Santiago. Yes.

The President. But since the facilities are not yet available, what will happen
to them?

Senator Santiago. Well, depending on their age, which has not yet been
settled . . . . . provides, for example, for conferencing family mediation,
negotiation, apologies, censure, et cetera. These methodologies will apply.
They do not necessarily have to remain in detention.

Senator Pangilinan. Yes, that is correct, Mr. President. But it will still require
some sort of infrastructure, meaning, manpower. The personnel from the
DSWD will have to address the counseling. So, there must be a transition in
terms of building the capacity and absorbing those who will benefit from this
measure.

The President. Therefore, that should be specifically provided for as an

amendment.
Senator Pangilinan. That is correct, Mr. President.

The President. All right. Is there any objection? [Silence] There being none,
the Santiago amendment is accepted.55

xxxx

PIMENTEL AMENDMENTS

xxxx

Senator Pimentel.

xxxx

Now, considering that laws are normally prospective, Mr. President, in their
application, I would like to suggest to the Sponsor if he could incorporate
some kind of a transitory provision that would make this law apply also to
those who might already have been convicted but are awaiting, let us say,
execution of their penalties as adults when, in fact, they are juveniles.

Senator Pangilinan. Yes, Mr. President. We do have a provision under the

Transitory Provisions wherein we address the issue raised by the good
Senator, specifically, Section 67. For example, "Upon effectivity of this Act,
cases of children fifteen (15) years old and below at the time of the
commission of the crime shall immediately be dismissed and the child shall
be referred to the appropriate local social welfare and development officer."
So that would be giving retroactive effect.

Senator Pimentel. Of cases that are still to be prosecuted.

Senator Pangilinan. Yes.

Senator Pimentel. What about those that have already been prosecuted? I
was trying to cite the instance of juvenile offenders erroneously convicted as
adults awaiting execution.

Senator Pangilinan. Mr. President, we are willing to include that as an

additional amendment, subject to style.

Senator Pimentel. I would certainly appreciate that because that is a reality

that we have to address, otherwise injustice will really be . . .

Senator Pangilinan. Yes, Mr. President, we would also include that as a

separate provision.
The President. In other words, even after final conviction if, in fact, the
offender is able to prove that at the time of the commission of the offense he
is a minor under this law, he should be given the benefit of the law.

Senator Pimentel. Yes, Mr. President. That is correct.

Senator Pangilinan. Yes, Mr. President. We accept that proposed

amendment.56

The Court is bound to enforce this legislative intent, which is the dominant
factor in interpreting a statute. Significantly, this Court has declared in a
number of cases, that intent is the soul of the law, viz.:

The intent of a statute is the law. If a statute is valid it is to have effect

according to the purpose and intent of the lawmaker. The intent is the vital
part, the essence of the law, and the primary rule of construction is to
ascertain and give effect to the intent. The intention of the legislature in
enacting a law is the law itself, and must be enforced when ascertained,
although it may not be consistent with the strict letter of the statute. Courts
will not follow the letter of a statute when it leads away from the true intent
and purpose of the legislature and to conclusions inconsistent with the
general purpose of the act. Intent is the spirit which gives life to

a legislative enactment. In construing statutes the proper course is to start out

and follow the true intent of the legislature and to adopt that sense which
harmonizes best with the context and promotes in the fullest manner the
apparent policy and objects of the legislature.57

Moreover, penal laws are construed liberally in favor of the accused.58 In this
case, the plain meaning of R.A. No. 9344's unambiguous language, coupled
with clear lawmakers' intent, is most favorable to herein petitioner. No other
interpretation is justified, for the simple language of the new law itself
demonstrates the legislative intent to favor the CICL.

It bears stressing that the petitioner was only 13 years old at the time of the
commission of the alleged rape. This was duly proven by the certificate of live
birth, by petitioner's own testimony, and by the testimony of his mother.
Furthermore, petitioner’s age was never assailed in any of the proceedings
before the RTC and the CA. Indubitably, petitioner, at the time of the
commission of the crime, was below 15 years of age. Under R.A. No. 9344,
he is exempted from criminal liability.

However, while the law exempts petitioner from criminal liability for the two (2)
counts of rape committed against AAA, Section 6 thereof expressly provides
that there is no concomitant exemption from civil liability. Accordingly, this
Court sustains the ruling of the RTC, duly affirmed by the CA, that petitioner
and/or his parents are liable to pay AAA P100,000.00 as civil indemnity. This
award is in the nature of actual or compensatory damages, and is mandatory
upon a conviction for rape.

The RTC, however, erred in not separately awarding moral damages, distinct
from the civil indemnity awarded to the rape victim. AAA is entitled to moral
damages in the amount of P50,000.00 for each count of rape, pursuant to
Article 2219 of the Civil Code, without the necessity of additional pleading or
proof other than the fact of rape. Moral damages are granted in recognition of
the victim's injury necessarily resulting from the odious crime of rape.59

A final note. While we regret the delay, we take consolation in the fact that a
law intended to protect our children from the harshness of life and to alleviate,
if not cure, the ills of the growing number of CICL and children at risk in our
country, has been enacted by Congress. However, it has not escaped us that
major concerns have been raised on the effects of the law. It is worth
mentioning that in the Rationale for the Proposed Rule on Children Charged
under R.A. No. 9165, or the Comprehensive Dangerous Drugs Act of 2002, it
was found that:

The passage of Republic Act No. 9344 or the Juvenile Justice and Welfare
Act of 2006 raising the age of criminal irresponsibility from 9 years old to 15
years old has compounded the problem of employment of children in the drug
trade several times over. Law enforcement authorities, Barangay Kagawads
and the police, most particularly, complain that drug syndicates have become
more aggressive in using children 15 years old or below as couriers or foot
soldiers in the drug trade. They claim that Republic Act No. 9344 has
rendered them ineffective in the faithful discharge of their duties in that they
are proscribed from taking into custody children 15 years old or below who
openly flaunt possession, use and delivery or distribution of illicit drugs,
simply because their age exempts them from criminal liability under the new
law. 60

The Court is fully cognizant that our decision in the instant case effectively
exonerates petitioner of rape, a heinous crime committed against AAA who
was only a child at the tender age of six (6) when she was raped by the
petitioner, and one who deserves the law’s greater protection. However, this
consequence is inevitable because of the language of R.A. No. 9344, the
wisdom of which is not subject to review by this Court.61 Any perception that
the result reached herein appears unjust or unwise should be addressed to
Congress. Indeed, the Court has no discretion to give statutes a meaning
detached from the manifest intendment and language of the law. Our task is
constitutionally confined only to applying the law and jurisprudence to the
proven facts, and we have done so in this case.62

WHEREFORE, in view of the foregoing, Criminal Case Nos. 98-19083 and

98-19084 filed against petitioner Joemar F. Ortega are hereby DISMISSED.
Petitioner is hereby referred to the local social welfare and development
officer of the locality for the appropriate intervention program. Nevertheless,
the petitioner is hereby ordered to pay private complainant AAA, civil
indemnity in the amount of One Hundred Thousand Pesos (P100,000.00) and
moral damages in the amount of One Hundred Thousand Pesos
(P100,000.00). No costs.

Let a copy of this Decision be furnished the two Houses of Congress and the
Juvenile Justice and Welfare Council (JJWC).

SO ORDERED.
G.R. No. 75256 January 26, 1989

JOHN PHILIP GUEVARRA, petitioner,

vs.
HONORABLE IGNACIO ALMODOVAR, respondent.

Teresita Dy-Liacco and Roberto Madrid for petitioner.

PARAS, J.:

Presented before Us is a special civil action for certiorari against the

Honorable Judge Ignacio Almodovar of the City Court of Legaspi, Branch 1,
Legaspi City, raising beautiful questions of law which We are tasked to
resolve. Considering the issues and arguments raised by petitioner, We
impleaded the People of the Philippines as party respondents herein in a
resolution dated 17 September 1986 (p. 41, Rollo).

The relevant facts gathered from the records are as follows:

Petitioner John Philip Guevarra, then 11 years old, was playing with his best
friend Teodoro Almine, Jr. and three other children in their backyard in the
morning of 29 October 1984. They were target-shooting a bottle cap (tansan)
placed around fifteen (15) to twenty (20) meters away with an air rifle
borrowed from a neighbor. In the course of their game, Teodoro was hit by a
pellet on his left collar bone which caused his unfortunate death.

After conduct a preliminary investigation, the examining Fiscal exculpated

petitioner due to his age and because the unfortunate occurrence appeared
to be an accident. The victim's parents appealed to the Ministry of Justice,
which ordered the Fiscal to file a case against petitioner for Homicide through
reckless Imprudence. The information dated 9 October 1985 was
consequently filed, which narrated in part:

. . . the above-named accused, who is over 9 years but below 15 years of age
and acting with discernment, did then and there, without taking the necessary
precautions to prevent and/or avoid accident or injuries to persons, willfully,
unlawfully and feloniously operate and cause to be fired, in a reckless and
imprudent manner, an air rifle with .22 caliber bore with rifling, oxygen and
bolt operated thereby hitting as a result of said carelessness and imprudence
one TEODORICO PABLO ALMINE at the left side of the body with its pellet,
causing injuries which directly caused his untimely death; . . . (p. 8, Rollo)

On 25 October 1985, petitioner moved to quash the said information on the

following grounds:
I

THAT THE FACTS CHARGED DO NOT CONSTITUTE OFFENSE.

II

THAT THE INFORMATION CONTAINS AVERMENTS WHICH IF TRUE

WOULD CONSTITUTE A LEGAL EXCUSE OR JUSTIFICATION.

III

THAT THIS HONORABLE COURT HAS NO JURISDICTION OVER THE

OFFENSE CHARGED AND THE PERSON OF THE DEFENDANT. (p. 9,
Rollo)

This motion, in an Order dated 4 April 1986, was denied with respect to the
first and third grounds relied upon. However, the resolution of the second
ground was deferred until evidence shall have been presented during trial.

On 26 July 1986, this present petition for certiorari was filed, raising two (2)
issues, to wit:

WHETHER AN ELEVEN (11) YEAR OLD BOY COULD BE CHARGED WITH

THE CRIME OF HOMICIDE THRU RECKLESS IMPRUDENCE, AND

II

WHETHER THE COURT HAD JURISDICTION OVER THE CASE

NOTWITHSTANDING THE FACT THAT IT DID NOT PASS THRU THE
BARANGAY LUPON. (Petition, p. 3, Rollo)

Going through the written arguments of the parties, the surfacing of a

corollary controversy with respect to the first issue raised is evident, that is,
whether the term "discernment", as used in Article 12(3) of the Revised Penal
Code (RPC) is synonymous with "intent." It is the position of the petitioner
that "discernment" connotes 'intent' (p. 96, Rollo), invoking the unreported
case of People vs. Nieto, G.R. No. 11965, 30 April 1958. In that case We held
that the allegation of "with intent to kill . . ." amply meets the requirement that
discernment should be alleged when the accused is a minor between 9 and
15 years old. Petitioner completes his syllogism in saying that:
If discernment is the equivalent of 'with intent', then the allegation in the
information that the accused acted with discernment and willfully unlawfully,
and feloniously, operate or cause to be fired in a reckless and imprudent
manner an air rifle .22 caliber' is an inherent contradiction tantamount to
failure of the information to allege a cause of action or constitute a legal
excuse or exception. (Memorandum for Petitioner, p. 97, Rollo)

If petitioner's argument is correct, then no minor between the ages of 9 and

15 may be convicted of a quasi-offense under Article 265 of the RPC.

On the contrary, the Solicitor General insists that discernment and intent are
two different concepts. We agree with the Solicitor General's view; the two
terms should not be confused.

The word "intent" has been defined as

(a) design; a determination to do a certain things; an aim; the purpose of the

mind, including such knowledge as is essential to such intent;. . .; the design
resolve, or determination with which a person acts.' (46 CJS Intent p. 1103.)

It is this intent which comprises the third element of dolo as a means of

committing a felony, freedom and intelligence being the other two. On the
other hand, We have defined the term discernment, as used in Article 12(3) of
the RPC, in the old case of People vs. Doquena, 68 Phil. 580(1939), in this
wise:

The discernment that constitutes an exception to the exemption from criminal

liability of a minor under fifteen years of age but over nine, who commits an
act prohibited by law, is his mental capacity to understand the difference
between right and wrong . . . (Emphasis supplied) p. 583

From the foregoing, it is clear that the terms "intent" and "discernment"
convey two distinct thoughts. While both are products of the mental
processes within a person, the former refers to the desired of one's act while
the latter relates to the moral significance that person ascribes to the said act.
Hence a person may not intend to shoot another but may be aware of the
consequences of his negligent act which may cause injury to the same
person in negligently handling an air rifle. It is not connect, therefore, to
argue, as petitioner does, that since a minor above nine years of age but
below fifteen acted with discernment, then he intended such act to be done.
He may negligently shoot his friend, thus did not intend to shoot him, and at
the same time recognize the undesirable result of his negligence.

In further outlining the distinction between the words "intent" and

"discernment," it is worthy to note the basic reason behind the enactment of
the exempting circumstances embodied in Article 12 of the RPC; the
complete absence of intelligence, freedom of action, or intent, or on the
absence of negligence on the part of the accused. 1 In expounding on
intelligence as the second element of dolus, Albert 2 has stated:

The second element of dolus is intelligence; without this power, necessary to

determine the morality of human acts to distinguish a licit from an illicit act, no
crime can exist, and because ... the infant 3 (has) no intelligence, the law
exempts (him) from criminal liability. (Emphasis supplied)

lt is for this reason, therefore, why minors nine years of age and below are
not capable of performing a criminal act. On the other hand, minors above
nine years of appeal but below fifteen are not absolutely exempt. However,
they are presumed to be without criminal capacity, but which presumption
may be rebutted if it could be proven that they were "capable of appreciating
the nature and criminality of the act, that is, that (they) acted with
discernment. " 4 The preceding discussion shows that "intelligence" as an
element of dolo actually embraces the concept of discernment as used in
Article 12 of the RPC and as defined in the aforecited case of People vs.
Doquena, supra. It could not therefore be argued that discernment is
equivalent or connotes 'intent' for they refer to two different concepts.
Intelligence, which includes discernment, is a distinct element of dolo as a
means of committing an offense.

In evaluating felonies committed by means of culpa, three (3) elements are

indispensable, namely, intelligence, freedom of action, and negligence.
Obviously, intent is wanting in such felonies. However, intelligence remains
as an essential element, hence, it is necessary that a minor above nine but
below fifteen years of age be possessed with intelligence in committing a
negligent act which results in a quasi-offense. For him to be criminally liable,
he must discern the rightness or wrongness of the effects of his negligent act.
Indeed, a minor over nine years of age but below fifteen may be held liable
for a quasi-offense under Article 365 of the RPC. A reading of the said Article
would reveal such fact as it starts off with the phrase "Any person. . ." without
any distinction or exception made. Ubi lex non distinquit nec nos distinguere
debemos.

In his last attempt to justify his position equating the words "intent" and
"discernment" used under the law, he cites the case of People vs. Nieto,
supra. However, petitioner failed to present the qualifying sentence preceding
the ruling he now invokes, which reads:

That requirement should be deemed amply met with the allegation in the
information that she. . ."with the intent to kill, did then and there wilfully,
criminally and feloniously push one Lolita Padilla . . ." into a deep place of the
Peñaranda River and as a consequence thereof Lolita Padilla got drowned
and died right then and there.' This allegation clearly conveys the Idea that
she knew what would be the consequence of her unlawful act of pushing her
victim into deep water and that she knew it to be wrong. (Emphasis supplied)

From the above, it is clear that We did not mean to equate the words "intent"
and "discernment." What We meant was that the combined effect of the
words used in the information is to express a knowledge, on the part of the
accused Nieto, of the wrongness or rightness of her act. Hence, petitioner
may not validly contend that since the information now in question alleged
"discernment", it in effect alleged "intent." The former may never embrace the
Idea of the latter; the former expresses the thought of passivity while the latter
signifies activity.

Coming now to the second issue of jurisdiction, it is contended by the

petitioner that the case against him should have first been brought before the
Lupong Tagapayapa pursuant to Presidential Decree No. 1508, Section 2(3).
He submits that, considering his entitlement to a two-degree privileged
mitigating circumstance due to his minority, P.D. 1508 applies to his case
because the penalty imposable is reduced to not higher than arresto menor
from an original arresto mayor maximum to prision correccional medium as
prescribed in Article 365 of the RPC. This is not correct. The jurisdiction of a
court over a criminal case is determined by the penalty imposable under the
law for the offense and not the penalty ultimately imposed (People vs.
Caldito, 72 Phil. 263; People vs. Purisima, 69 SCRA 314; Dioquino vs. Cruz
and People vs. Savellano, 116 SCRA 451). The same principle applies in
construing Section 2(3) of P.D. 1508, which states:

xxx xxx xxx

(3) Offense punishable by imprisonment exceeding 30 day , or a fine

exceeding P 200.00; ... (emphasis supplied)

Expounding on the above provision, a member of the committee that drafted

P.D. 1508 has said:

The law says 'punishable,' not 'punished.' One should therefore consider the
penalty provided for by law or ordinance as distinguished from the penalty
actually imposed in particular cases after considering the attendant
circumstances affecting criminal liability. 5

The foregoing finds support in our jurisprudence as above cited. We therefore

rule that, in construing Section 2(3) of P.D. 1508, the penalty which the law
defining the offense attaches to the latter should be considered. Hence, any
circumstance which may affect criminal liability must not be considered.
The petitioner, in his arguments, asserts that since P.D. 1508 has not been
complied with, the trial court has no jurisdiction over the case. This erroneous
perception has been corrected long before. As intimated in the case of
Royales vs. IAC, 127 SCRA 470, and categorically stated in Ebol vs. Amin,
135 SCRA 438, P.D. 1508 is not jurisdictional.

WHEREFORE, PREMISES CONSIDERED, this petition is hereby

DISMISSED for lack of merit and the Temporary Restraining Order effective
17 September 1986 is LIFTED. Let this case be REMANDED to the lower
court for trial on the merits. No cost.

SO ORDERED.
G.R. No. 150647 September 29, 2004

ROWENO POMOY, petitioner,

vs.
PEOPLE OF THE PHILIPPINES, respondent.

DECISION

PANGANIBAN, J.:

Well-established is the principle that the factual findings of the trial court,
when affirmed by the Court of Appeals, are binding on the highest court of the
land. However, when facts are misinterpreted and the innocence of the
accused depends on a proper appreciation of the factual conclusions, the
Supreme Court may conduct a review thereof. In the present case, a careful
reexamination convinces this Court that an "accident" caused the victim’s
death. At the very least, the testimonies of the credible witnesses create a
reasonable doubt on appellant’s guilt. Hence, the Court must uphold the
constitutional presumption of innocence.

The Case

Before us is a Petition for Review1 under Rule 45 of the Rules of Court,

seeking to set aside the February 28, 2001 Decision2 and the October 30,
2001 Resolution3 of the Court of Appeals (CA) in CA–GR CR No. 18759. The
CA affirmed, with modifications, the March 8, 1995 judgment4 of the Regional
Trial Court (RTC)5 of Iloilo City (Branch 25) in Criminal Case No. 36921,
finding Roweno Pomoy guilty of the crime of homicide. The assailed CA
Decision disposed as follows:

"WHEREFORE, premises considered, MODIFIED as to penalty in the sense

that the [Petitioner] ROWENO POMOY is sentenced to suffer an
indeterminate prison term of six (6) years, four (4) months and ten (10) days
of prision mayor minimum, as minimum, to fourteen (14) years eight (8)
months and twenty (20) days of reclusion temporal medium, as maximum, the
decision appealed from is hereby AFFIRMED in all other respects."6

The challenged CA Resolution denied petitioner’s Motion for Reconsideration.

Petitioner was charged in an Information worded thus:

"That on or about the 4th day of January 1990, in the Municipality of Sara,
Province of Iloilo, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, armed with his .45 service pistol, with
deliberate intent and decided purpose to kill, and without any justifiable cause
or motive, did then and there willfully, unlawfully and feloniously assault,
attack and shoot one TOMAS BALBOA with the service pistol he was then
provided, inflicting upon the latter gunshot wounds on the vital parts of his
body, which directly caused the death of said victim thereafter."7

The Facts

Version of the Prosecution

The Office of the Solicitor General (OSG) presented respondent’s version of

the facts as follows:

"Tomas Balboa was a master teacher of the Concepcion College of Science

and Fisheries in Concepcion, Iloilo.

"On January 4, 1990, about 7:30 in the morning, some policemen arrived at
the Concepcion College to arrest Balboa, allegedly in connection with a
robbery which took place in the municipality in December 1989. With the
arrest effected, Balboa and the policemen passed by the Concepcion
Elementary School where his wife, Jessica, was in a get-together party with
other School Administrators. When his wife asked him, ‘Why will you be
arrested?’ [H]e answered ‘[Even I] do not know why I am arrested. That is
why I am even going there in order to find out the reason for my arrest.’

"Balboa was taken to the Headquarters of the already defunct 321st

Philippine Constabulary Company at Camp Jalandoni, Sara, Iloilo. He was
detained in the jail thereat, along with Edgar Samudio, another suspect in the
robbery case.

"Later that day, about a little past 2 o’clock in the afternoon, petitioner, who is
a police sergeant, went near the door of the jail where Balboa was detained
and directed the latter to come out, purportedly for tactical interrogation at the
investigation room, as he told Balboa: ‘Let’s go to the investigation room.’ The
investigation room is at the main building of the compound where the jail is
located. The jail guard on duty, Nicostrado Estepar, opened the jail door and
walked towards the investigation room.

"At that time, petitioner had a gun, a .45 caliber pistol, tucked in a holster
which was hanging by the side of his belt. The gun was fully embedded in its
holster, with only the handle of the gun protruding from the holster.

"When petitioner and Balboa reached the main building and were near the
investigation room, two (2) gunshots were heard. When the source of the
shots was verified, petitioner was seen still holding a .45 caliber pistol, facing
Balboa, who was lying in a pool of blood, about two (2) feet away. When the
Commanding Officer of the Headquarters arrived, he disarmed petitioner and
directed that Balboa be brought to the hospital. Dr. Palma (first name not
provided) happened to be at the crime scene as he was visiting his brother in
the Philippine Constabulary. When Dr. Palma examined Balboa, he (Dr.
Palma) said that it was unnecessary to bring Balboa to the hospital for he was
dead.

"Upon the request of Mrs. Jessica Balboa, the wife of the deceased, Dr.
Ricardo Jabonete, the medico-legal officer of the National Bureau of
Investigation, Region VI, Iloilo City, conducted an autopsy on the remains of
Tomas Balboa. The following were his findings:

‘Pallor, integumens and nailbeds.

‘Wound, gunshot: (1) ENTRANCE, downwards and medially, edges, modified

by sutures, surrounded by abrasion collar, 0.6 cm. In its chest, left side, 10.0
cms. from anterior midline, 121.0 cms. From left heel, directed medially
backwards from left to right, penetrating chest wall thru 5th intercostals space
into thoracic cavity, perforating thru and thru, upper lobe, left lung, lacerating
left ventricular wall causing punched out fracture, 8th thoracic vertebra and
make an EXIT, stallate in shape, 1.0 x 0.8 cm. Edges, modified by sutures,
back, right side, 8.0 cms. From posterior midline, 117.0 cms. From right heel
(2) ENTRANCE, ovaloid, oriented medially downwards, edges sutured, 0.7
cm. on its widest portion, at infero-medial border, hypochondriac region, left
side, 4.0 cms. From anterior midline, 105.0 cms. From left heel, directed
backwards, laterally wall into penetrating abdominal cavity, perforating thru
and thru, stomach, head of the pancreas and mesentery, make an exit,
ovalid, 1.0 x 0.8 cm., oriented medially upwards, edges, sutured, back, left
side, level of 9th intercostal space, 4.5 cms. From posterior midline, 110.0
cms. From left heel. x x x.

‘CAUSE OF DEATH: Hemorrhage, massive secondary to gunshot wounds on

chest and abdomen.

‘REMARKS: Body previously embalmed and autopsied.’

"Dr. Jaboneta testified that the two (2) wounds he found on x x x Balboa’s
body were gunshot wounds. The entrance of [W]ound No. 1 was to the left
side of the chest about the left nipple and exited to the right side of the back.
Its trajectory was backwards then downwards from left to right. As to the
possible position of the assailant, Dr. Jaboneta opined that the nozzle of the
gun was probably in front of the victim and was more to the left side, and the
gun must have been a little bit higher than the entrance wound. Wound No. 2
was located immediately below the arch of the ribs, left side. Its direction was
backwards and laterally upwards. Dr. Jaboneta estimated that when it was
inflicted, the assailant must have pointed the gun’s nozzle to the right side
front of the victim. The distance between the entrance points of wounds No. 1
and No. 2 was found to be about 16.0 centimeters."8

Version of the Defense

The Petition adopted the narration of facts in the assailed CA Decision, which
in turn culled them from the trial court. The RTC summarized the testimonies
of Defense Witnesses Erna Basa, the lone eyewitness to the incident; Eden
Legaspi; Dr. Salvador Mallo Jr.; and petitioner himself, as follows:

"Erna Basa:

"x x x [O]n January 4, 1990, she was working in their office in the camp up to
the afternoon; at about past 2 o’clock that afternoon while working on the
backlogs, she heard some noise and exchange of words which were not
clear, but it seemed there was growing trouble; she opened the door to verify
and saw Roweno Pomoy and Tomas Balboa grappling for the possession of
the gun; she was inside the room and one meter away from the door; Pomoy
and Balboa while grappling were two to three meters away from the door; the
grappling happened so fast and the gun of Pomoy was suddenly pulled out
from its holster and then there was explosion; she was not certain who pulled
the gun. x x x.

"Eden Legaspi:

"x x x [A]s early as 1:30 o’clock in the afternoon of January 4, 1990 she was
inside the investigation room of the PC at Camp Jalandoni, Sara, Iloilo; at
about 2 o’clock that same afternoon while there inside, she heard a
commotion outside and she remained seated on the bench; when the
commotion started they were seated on the bench and after the commotion
that woman soldier (referring to Erna Basa) stood up and opened the door
and she saw two persons grappling for the possession of a gun and
immediately two successive shots rang out; she did not leave the place where
she was seated but she just stood up; after the shots, one of the two men fall
down x x x.

"Accused-petitioner Roweno Pomoy:

"He is 30 years old and a PNP member of the Iloilo Provincial Mobile Force
Company then attached to the defunct 321st PC Company; he was one of the
investigators of their outfit; about 2 o’clock or past that time of January 4,
1990 he got Tomas Balboa from their stockade for tactical interrogation; as
he was already holding the door knob of their investigation room and about to
open and enter it, all of a sudden he saw Tomas Balboa approach him and
take hold or grab the handle of his gun; Tomas Balboa was a suspect in a
robbery case who was apprehended by the police of Concepcion and then
turned over to them (PC) and placed in their stockade; he asked the sergeant
of the guard to let Balboa out of the stockade for interrogation; from the
stockade with Balboa walking with him, he had his .45 caliber pistol placed in
his holster attached to his belt on his waist; then as he was holding the
doorknob with his right hand to open the door, the victim, who was two
meters away from him, suddenly approached him and grabbed his gun, but
all of a sudden he held the handle of his gun with his left hand; he released
his right hand from the doorknob and, with that right hand, he held the handle
of his gun; Tomas Balboa was not able to take actual hold of the gun because
of his efforts in preventing him (Balboa) from holding the handle of his gun; he
used his left hand to parry the move of Balboa; after he held the handle of his
gun with his right hand, in a matter of seconds, he felt somebody was holding
his right hand; he and Balboa grappled and in two or three seconds the gun
was drawn from its holster as both of them held the gun; more grappling
followed and five seconds after the gun was taken from its holster it fired, the
victim was to his right side when the attempt to grab his gun began and was
still to his right when the gun was drawn from its holster until it fired, as they
were still grappling or wrestling; his gun was already loaded in its chamber
and cocked when he left his house, and it was locked when it fired; during the
grappling he used his left hand to prevent Balboa from holding his gun, while
the victim used his right hand in trying to reach the gun; after the gun fired,
they were separated from each other and Balboa fell; he is taller than Balboa
though the latter was bigger in build; he cannot say nor determine who of
them was stronger; after Balboa fell, Sgt. Alag shouted saying ‘stop that’ and
he saw Sgt. Alag approaching; sometime after, Capt. Rolando Maclang, their
commanding officer, came, got his gun, and said that the case be
investigated as to what really happened. He said that when his gun was put in
its holster only its handle protrudes or comes out from it.

"Upon cross-examination, he said that Balboa was a suspect in a robbery

case that happened during the first week of December, 1989; he was the one
who filed that case in the town of San Dionisio and that case involves other
persons who were also detained; before January 4, 1990 he had also the
chance to invite and interrogate Balboa but who denied any robbery case; x x
x [I]t was after he took his lunch that day when Capt. Maclang called him to
conduct the interrogation; when he took Balboa from the stockade he did not
tell him that he (Balboa) was to be investigated in the investigation room
which was housed in the main building which is fifty meters, more or less,
from the stockade, likewise houses the administrative office, the office of the
commanding officer, officer of the operations division and that of the signal
division; his gun was in its holster when the victim tried to grab it (gun); from
the time he sensed that the victim tried to grab his gun, he locked the victim;
the hand of the victim was on top of his hand and he felt the victim was
attempting to get his gun; that the entire handle of his gun was exposed when
placed inside its holster; he cannot tell whether the victim, while struggling
with him, was able to hold any portion of his gun from the tip of its barrel to
the point where its hammer is located; during the incident his gun was fully
loaded and cocked; Sgt. Alag did not approach, but just viewed them and
probably reported the incident to their commanding officer; he was not able to
talk to Sgt. Alag as he (Pomoy) was not in his right sense; when his
commanding officer came some five to ten minutes later and took away his
gun he did not tell him anything.

"Dr. Salvador Mallo Jr.

"He is the Rural Health Physician of Sara who conducted the autopsy on the
cadaver of Tomas Balboa that afternoon of January 4, 1990; in his autopsy
findings respecting which he made an autopsy report he said he found two
entrance wounds on the victim, the first on the left chest with trajectory
medially downward, while the second one is on the left side of the stomach
with trajectory somewhat going upward; at the same time of his examination
he saw this victim to be wearing a light-colored T-shirt and a jacket; other
than the T-shirt worn by the victim, he did not see or find any powder burns
and marks and that those dotted marks in the T-shirt were believed by him to
be powder burns as they look like one; he also found a deformed slug in the
pocket of the jacket of the victim."9

Ruling of the Court of Appeals

The CA anchored its Decision on the following factual findings: 1) the victim
was not successful in his attempts to grab the gun, since petitioner had been
in control of the weapon when the shots were fired; 2) the gun had been
locked prior to the alleged grabbing incident and immediately before it went
off; it was petitioner who released the safety lock before he deliberately fired
the fatal shots; and 3) the location of the wounds found on the body of the
deceased did not support the assertion of petitioner that there had been a
grappling for the gun.

To the appellate court, all the foregoing facts discredited the claim of
petitioner that the death of Balboa resulted from an accident. Citing People v.
Reyes,10 the CA maintained that "a revolver is not prone to accidental firing if
it were simply handed over to the deceased as appellant claims because of
the nature of its mechanism, unless it was already first cocked and pressure
was exerted on the trigger in the process of allegedly handing it over. If it
were uncocked, then considerable pressure had to be applied on the trigger
to fire the revolver. Either way, the shooting of the deceased must have been
intentional because pressure on the trigger was necessary to make the gun
fire."11
Moreover, the appellate court obviously concurred with this observation of the
OSG:

"[Petitioner’s] theory of accident would have been easier to believe had the
victim been shot only once. In this case, however, [petitioner] shot the victim
not only once but twice, thereby establishing [petitioner’s] determined effort to
kill the victim. By any stretch of the imagination, even assuming without
admitting that the first shot was accidental, then it should not have been
followed by another shot on another vital part of the body. The fact that
[petitioner] shot the victim two (2) times and was hit on two different and
distant parts of the body, inflicted from two different locations or angles,
means that there was an intent to cause the victim’s death, contrary to
[petitioner’s] pretensions of the alleged accidental firing. It is an oft-repeated
principle that the location, number and gravity of the wounds inflicted on the
victim have a more revealing tale of what actually happened during the
incident. x x x.12

Furthermore, the CA debunked the alternative plea of self-defense. It held

that petitioner had miserably failed to prove the attendance of unlawful
aggression, an indispensable element of this justifying circumstance.

While substantially affirming the factual findings of the RTC, the CA disagreed
with the conclusion of the trial court that the aggravating circumstance of
abuse of public position had attended the commission of the crime.
Accordingly, the penalty imposed by the RTC was modified by the appellate
court in this manner:

"x x x [F]or public position to be appreciated as an aggravating circumstance,

the public official must use his influence, prestige and ascendancy which his
office gives him in realizing his purpose. If the accused could have
perpetrated the crime without occupying his position, then there is no abuse
of public position.’ (People vs. Joyno, 304 SCRA 655, 670). In the instant
case, there is no showing that the [petitioner] had a premeditated plan to kill
the victim when the former fetched the latter from the stockade, thus, it
cannot be concluded that the public position of the [petitioner] facilitated the
commission of the crime. Therefore, the trial court’s finding that the said
aggravating circumstance that [petitioner] took advantage of his public
position to commit the crime cannot be sustained. Hence, there being no
aggravating and no mitigating circumstance proved, the maximum of the
penalty shall be taken from the medium period of reclusion temporal, a
penalty imposable for the crime of homicide. x x x."13

Hence, this Petition.14

Issues

In his Memorandum, petitioner submitted the following issues for the Court’s
consideration:

"I. The Court of Appeals committed serious and reversible error in affirming
petitioner’s conviction despite the insufficiency of the prosecution’s evidence
to convict the petitioner, in contrast to petitioner’s overwhelming evidence to
support his theory/defense of accident.

"II. The Court of Appeals committed grave and reversible error in affirming the
conviction of the petitioner on a manifestly mistaken inference that when the
gun fired, the petitioner was in full control of the handle of the gun, because
what the testimonies of disinterested witnesses and the petitioner reveal was
that the gun fired while petitioner and Balboa were both holding the gun in
forceful efforts to wrest the gun from each other.

"III. The Court of Appeals gravely erred in affirming the solicitor general’s
observation that the fact that petitioner shot the victim twice establishes
petitioner’s determined effort to kill the victim.

"IV. The appellate court committed serious misapprehension of the evidence

presented when it ruled that the trajectory of the wounds was front-to-back
belying the allegation of petitioner that he and the victim were side-by-side
each other when the grappling ensued.

"V. The Court of Appeals failed to discern the real import of petitioner’s
reaction to the incident when it stated that the dumbfounded reaction of
petitioner after the incident strongly argues against his claim of accidental
shooting.

"VI. The appellate court committed grave error when it disregarded motive or
lack of it in determining the existence of voluntariness and intent on the part
of petitioner to shoot at the victim when the same was put in serious doubt by
the evidence presented.

"VII. The Court of Appeals was mistaken in ruling that the defense of accident
and self-defense are inconsistent.

"VIII. The Court of Appeals obviously erred in the imposition of the penalties
and damages."15

In sum, the foregoing issues can be narrowed down to two: First, whether the
shooting of Tomas Balboa was the result of an accident; and second, whether
petitioner was able to prove self-defense.
The Court’s Ruling

The Petition is meritorious.

First Issue:

Accidental Shooting

Timeless is the legal adage that the factual findings of the trial court, when
affirmed by the appellate court, are conclusive.16 Both courts possess time-
honored expertise in the field of fact finding. But where some facts are
misinterpreted or some details overlooked, the Supreme Court may overturn
the erroneous conclusions drawn by the courts a quo. Where, as in this case,
the facts in dispute are crucial to the question of innocence or guilt of the
accused, a careful factual reexamination is imperative.

Accident is an exempting circumstance under Article 12 of the Revised Penal

Code:

"Article 12. Circumstances which exempt from criminal liability. – The

following are exempt from criminal liability:

xxx xxx xxx

‘4. Any person who, while performing a lawful act with due care, causes an
injury by mere accident without fault or intent of causing it.’"

Exemption from criminal liability proceeds from a finding that the harm to the
victim was not due to the fault or negligence of the accused, but to
circumstances that could not have been foreseen or controlled.17 Thus, in
determining whether an "accident" attended the incident, courts must take
into account the dual standards of lack of intent to kill and absence of fault or
negligence. This determination inevitably brings to the fore the main question
in the present case: was petitioner in control of the .45 caliber pistol at the
very moment the shots were fired?

Petitioner Not in Control

of the Gun When It Fired

The records show that, other than petitioner himself, it was Erna Basa who
witnessed the incident firsthand. Her account, narrated during cross-
examination, detailed the events of that fateful afternoon of January 4, 1990
as follows:
"ATTY. TEODOSIO:

Q. You said that while you were inside the investigation room you heard a
commotion. That commotion which you heard, did you hear any shouting as
part of that commotion which you heard?

A. Moderately there was shouting and their dialogue was not clear. It could
not be understood.

Q. Did you hear any voices as part of that commotion?

A. No, sir.

Q. From the time you entered the investigation room you did not hear any
voice while you were inside the investigation room as part of that commotion?

A. There was no loud voice and their conversation could not be clarified. They
were talking somewhat like murmuring or in a low voice but there was a sort
of trouble in their talks.

COURT:

Q. Was there a sort of an exchange of words in their conversation?

A. Yes, sir.

xxx xxx xxx

Q. When you opened the door, you saw Sgt. Pomoy and Mr. Balboa the
deceased in this case? Am I correct?

A. Yes, sir.

Q. And when you saw Sgt. Pomoy was he holding a gun?

A. Not yet, the gun was still here. (Witness illustrating by pointing to her side)
and I saw both of them grappling for that gun.

Q. Where was the gun at that time?

A. The gun was in its holster. (Witness illustrating by pointing to [her] side.)

Q. When you demonstrated you were according to you saw the hands holding
the gun. It was Sgt. Pomoy who was holding the gun with his right hand?
A. I saw two hands on the handle of the gun in its holster, the hand of Sir
Balboa and Sgt. Pomoy.

COURT:

Q. At that precise moment the gun was still in its holster?

A. When I took a look the gun was still in its holster with both hands grappling
for the possession of the gun.

Q. How many hands did you see?

A. Two.

Q. One hand of Sgt. Pomoy and one hand is that of the victim?

A. Yes, sir.

COURT:

Proceed.

ATTY TEODOSIO:

Q. Which hand of Sgt. Pomoy did you see holding the gun?

A. Right hand of Sgt. Pomoy.

Q. And when you see that right hand of Sgt. Pomoy, was it holding the gun?

A. The right hand of Sgt. Pomoy was here on the gun and Sir Balboa’s hand
was also there. Both of them were holding the gun.

Q. Which part of the gun was the right hand of Sgt. Pomoy holding?

A. The handle.

Q. And was he facing Tomas Balboa when he was holding the gun with his
right hand?

A. At first they were not directly facing each other.

Q. So later, they were facing each other?

A. They were not directly facing each other. Their position did not remain
steady as they were grappling for the possession of the gun force against
force.

COURT:

Q. What was the position of the victim when the shots were fired?

A. When I saw them they were already facing each other.

Q. What was the distance?

A. Very close to each other.

Q. How close?

A. Very near each other.

Q. Could it be a distance of within one (1) foot?

A. Not exactly. They were close to each other in such a manner that their
bodies would touch each other.

Q. So the distance is less than one (1) foot when the gun fired?

A. One (1) foot or less when the explosions were heard.

Q. And they were directly facing each other?

A. Yes, sir.

COURT:

Proceed.

Q. Were you able to see how the gun was taken out from its holster?

A. While they were grappling for the possession of the gun, gradually the gun
was released from its holster and then there was an explosion.

Q. And when the gun fired the gun was on Tomas Balboa?

A. I could not see towards whom the nozzle of the gun was when it fired
because they were grappling for the possession of the gun.
Q. Did you see when the gun fired when they were grappling for its
possession?

A. Yes sir, I actually saw the explosion. It came from that very gun.

Q. Did you see the gun fired when it fired for two times?

A. Yes, sir.

Q. Did you see the barrel of the gun when the gun fired?

A. I could not really conclude towards whom the barrel of the gun was pointed
to because the gun was turning.

xxx xxx xxx

Q. Could you tell the court who was holding the gun when the gun fired?

A. When the gun exploded, the gun was already in the possession of Sgt.
Pomoy. He was the one holding the gun.

Q. After the gun went off, you saw the gun was already in the hand of Sgt.
Pomoy?

A. Yes, sir.

Q. How soon after the gun went off when you saw the gun in the hand of Sgt.
Pomoy?

A. After Balboa had fallen and after they had separated themselves with each
other, it was then that I saw Sgt. Pomoy holding the gun.

COURT:

Proceed.

ATTY. TEODOSIO:

Q. When the gun was taken out from its holster, Sgt. Pomoy was the one
holding the handle of the gun? Am I correct?

A. Both of them were holding the handle of the gun.

Q. So when the gun was still in its holster, two of them were holding the gun?
A. Yes sir, they were actually holding the gun, Sgt. Pomoy and Sir Balboa.

Q. It was the right hand of Sgt. Pomoy who was holding the handle of the gun
as you testified?

A. Yes, sir.

Q. Which hand of Balboa was holding the handle of the gun?

A. Left hand.

Q. At the time Balboa was holding the handle of the gun with his left hand,
was he in front of Sgt. Pomoy?

A. They had a sort of having their sides towards each other. Pomoy’s right
and Balboa’s left sides [were] towards each other. They were side by side at
a closer distance towards each other.

xxx xxx xxx

Q. It was actually Sgt. Pomoy who was holding the handle of the gun during
that time?

A. When I looked out it was when they were grappling for the possession of
the gun and the right hand of Sgt. Pomoy was holding the handle of the gun.

Q. When you saw them did you see what position of the handle of the gun
was being held by Tomas Balboa? The rear portion of the handle of the gun
or the portion near the trigger?

A. When I looked at them it was the hand of Sgt. Pomoy holding the handle of
the gun with his right hand with the hand of Sir Balboa over the hand of
Pomoy, the same hand holding the gun.

Q. It was in that position when the gun was removed from its holster?

A. When the gun pulled out from its holster, I was not able to notice clearly
anymore whose hand was holding the gun when I saw both their hands were
holding the gun.

Q. When you said this in [the] vernacular, ‘Daw duha na sila nagakapot’, what
you really mean?

A. Both of them were holding the gun.

Q. But Sgt. Pomoy still holding the handle of the gun?

A. Still both of them were holding the handle of the gun.

Q. With the hand of Balboa still on the top of the hand of Sgt. Pomoy as what
you have previously said when the gun was in the holster of Sgt. Pomoy?

A. When the gun was pulled from its holster, I saw that Sgt. Pomoy’s right
hand was still on the handle of the gun with the left hand of Sir Balboa over
his right hand of Sgt. Pomoy, like this (witness illustrating by showing his right
hand with her left hand over her right hand as if holding something. The
thumb of the left hand is somewhat over the index finger of the right hand.)

COURT:

Which hand of the victim was used by him when the gun was already pulled
out form its holster and while the accused was holding the handle of the gun?

A. Left hand.

Q. So, he was still using the same left hand in holding a portion of the handle
of the gun up to the time when the gun was pulled out from its holster?

A. Yes sir, the same left hand and that of Pomoy his right hand because the
left hand of Pomoy was used by him in parrying the right hand of Sir Balboa
which is about to grab the handle of the gun.

COURT:

Q. So in the process of grappling he was using his left hand in pushing the
victim away from him?

A. Yes, sir.

Q. What about the right hand of the victim, what was he doing with his right
hand?

A. The victim was trying to reach the gun with his right hand and Pomoy was
using his left hand to protect the victim from reaching the gun with his right
hand.

COURT:

Proceed.
ATTY. TEODOSIO:

Q. Did you say a while ago that Mr. Balboa was able to hold the barrel of the
gun of Sgt. Pomoy?

A. Yes, sir.

Q. And that was at the time before the shots were fired?

A. Yes, he was able to hold the tip of the barrel of the gun using his right
hand.

COURT:

Q. That was before the gun fired?

A. Yes, sir."18

The foregoing account demonstrates that petitioner did not have control of the
gun during the scuffle. The deceased persistently attempted to wrest the
weapon from him, while he resolutely tried to thwart those attempts. That the
hands of both petitioner and the victim were all over the weapon was
categorically asserted by the eyewitness. In the course of grappling for the
gun, both hands of petitioner were fully engaged -- his right hand was trying
to maintain possession of the weapon, while his left was warding off the
victim. It would be difficult to imagine how, under such circumstances,
petitioner would coolly and effectively be able to release the safety lock of the
gun and deliberately aim and fire it at the victim.

It would therefore appear that there was no firm factual basis for the following
declaration of the appellate court: "[Petitioner] admitted that his right hand
was holding the handle of the gun while the left hand of the victim was over
his right hand when the gun was fired. This declaration would safely lead us
to the conclusion that when the gun went off herein [petitioner] was in full
control of the gun."19

Release of the Gun’s Safety Lock and

Firing of the Gun Both Accidental

Petitioner testified that the .45 caliber service pistol was equipped with a
safety lock that, unless released, would prevent the firing of the gun. Despite
this safety feature, however, the evidence showed that the weapon fired and
hit the victim -- not just once, but twice. To the appellate court, this fact could
only mean that petitioner had deliberately unlocked the gun and shot at the
victim. This conclusion appears to be non sequitur.
It is undisputed that both petitioner and the victim grappled for possession of
the gun. This frenzied grappling for the weapon -- though brief, having been
finished in a matter of seconds -- was fierce and vicious. The eyewitness
account amply illustrated the logical conclusion that could not be dismissed:
that in the course of the scuffle, the safety lock could have been accidentally
released and the shots accidentally fired.

That there was not just one but two shots fired does not necessarily and
conclusively negate the claim that the shooting was accidental, as the same
circumstance can easily be attributed to the mechanism of the .45 caliber
service gun. Petitioner, in his technical description of the weapon in question,
explained how the disputed second shot may have been brought about:

"x x x Petitioner also testified on cross-examination that a caliber .45 semi-

automatic pistol, when fired, immediately slides backward throwing away the
empty shell and returns immediately carrying again a live bullet in its
chamber. Thus, the gun can, as it did, fire in succession. Verily, the location
of, and distance between the wounds and the trajectories of the bullets jibe
perfectly with the claim of the petitioner: the trajectory of the first shot going
downward from left to right thus pushing Balboa’s upper body, tilting it to the
left while Balboa was still clutching petitioner’s hand over the gun; the second
shot hitting him in the stomach with the bullet going upward of Balboa’s body
as he was falling down and releasing his hold on petitioner’s hand x x x."20

Thus, the appellate court’s reliance on People v. Reyes41 was misplaced. In

that case, the Court disbelieved the accused who described how his gun had
exploded while he was simply handing it over to the victim. Here, no similar
claim is being made; petitioner has consistently maintained that the gun
accidentally fired in the course of his struggle with the victim. More
significantly, the present case involves a semi-automatic pistol, the
mechanism of which is very different from that of a revolver, the gun used in
Reyes.22 Unlike a revolver, a semi-automatic pistol, as sufficiently described
by petitioner, is prone to accidental firing when possession thereof becomes
the object of a struggle.

Alleged Grappling Not Negated

by Frontal Location of Wounds

On the basis of the findings of Dr. Jaboneta showing that the wounds of the
deceased were all frontal, the appellate court rejected petitioner’s claim that a
grappling for the weapon ever occurred. It held that "if there was indeed a
grappling between the two, and that they had been side [by] side x x x each
other, the wounds thus inflicted could not have had a front-to-back trajectory
which would lead to an inference that the victim was shot frontally, as
observed by Dr. Jaboneta."23

Ordinarily, the location of gunshot wounds is indicative of the positions of the

parties at the precise moment when the gun was fired. Their positions would
in turn be relevant to a determination of the existence of variables such as
treachery, aggression and so on.

In the factual context of the present case, however, the location of the
wounds becomes inconsequential. Where, as in this case, both the victim and
the accused were grappling for possession of a gun, the direction of its nozzle
may continuously change in the process, such that the trajectory of the bullet
when the weapon fires becomes unpredictable and erratic. In this case, the
eyewitness account of that aspect of the tragic scuffle shows that the parties’
positions were unsteady, and that the nozzle of the gun was neither definitely
aimed nor pointed at any particular target. We quote the eyewitness
testimony as follows:

"Q. And when the gun fired the gun was on Tomas Balboa?

A. I could not see towards whom the nozzle of the gun was when it fired
because they were grappling for the possession of the gun.

xxx xxx xxx

Q. Did you see the barrel of the gun when the gun fired?

A. I could not really conclude towards whom the barrel of the gun was pointed
to because the gun was turning."24

xxx xxx xxx

"Q And was he facing Tomas Balboa when he was holding the gun with his
right hand?

A At first, they were not directly facing each other.

Q So later, they were facing each other?

A They were not directly facing each other. Their position did not remain
steady as they were grappling for the possession of the gun force against
force."25

In his Petition, this explanation is given by petitioner:

"x x x. The Court of Appeals erred in concluding that Balboa was shot
frontally. First, because the position of the gun does not necessarily indicate
the position of the person or persons holding the gun when it fired. This is
especially true when two persons were grappling for the possession of the
gun when it fired, as what exactly transpired in this case. x x x.

"[The] testimony clearly demonstrates that the petitioner was on the left side
of the victim during the grappling when the gun fired. The second wound was
thus inflicted this wise: when the first shot hit Balboa, his upper body was
pushed downward owing to the knocking power of the caliber .45 pistol. But
he did not let go of his grip of the hand of petitioner and the gun, Balboa
pulling the gun down as he was going down. When the gun went off the
second time hitting Balboa, the trajectory of the bullet in Balboa’s body was
going upward because his upper body was pushed downward twisting to the
left. It was then that Balboa let go of his grip. On cross-examination, petitioner
testified, what I noticed was that after successive shots we separated from
each other. This sequence of events is logical because the protagonists were
grappling over the gun and were moving very fast. x x x."26

Presence of All the

Elements of Accident

The elements of accident are as follows: 1) the accused was at the time
performing a lawful act with due care; 2) the resulting injury was caused by
mere accident; and 3) on the part of the accused, there was no fault or no
intent to cause the injury.27 From the facts, it is clear that all these elements
were present. At the time of the incident, petitioner was a member --
specifically, one of the investigators -- of the Philippine National Police (PNP)
stationed at the Iloilo Provincial Mobile Force Company. Thus, it was in the
lawful performance of his duties as investigating officer that, under the
instructions of his superior, he fetched the victim from the latter’s cell for a
routine interrogation.

Again, it was in the lawful performance of his duty as a law enforcer that
petitioner tried to defend his possession of the weapon when the victim
suddenly tried to remove it from his holster. As an enforcer of the law,
petitioner was duty-bound to prevent the snatching of his service weapon by
anyone, especially by a detained person in his custody. Such weapon was
likely to be used to facilitate escape and to kill or maim persons in the vicinity,
including petitioner himself.

Petitioner cannot be faulted for negligence. He exercised all the necessary

precautions to prevent his service weapon from causing accidental harm to
others. As he so assiduously maintained, he had kept his service gun locked
when he left his house; he kept it inside its holster at all times, especially
within the premises of his working area.

At no instance during his testimony did the accused admit to any intent to
cause injury to the deceased, much less kill him. Furthermore, Nicostrato
Estepar, the guard in charge of the detention of Balboa, did not testify to any
behavior on the part of petitioner that would indicate the intent to harm the
victim while being fetched from the detention cell.

The participation of petitioner, if any, in the victim’s death was limited only to
acts committed in the course of the lawful performance of his duties as an
enforcer of the law. The removal of the gun from its holster, the release of the
safety lock, and the firing of the two successive shots -- all of which led to the
death of the victim -- were sufficiently demonstrated to have been
consequences of circumstances beyond the control of petitioner. At the very
least, these factual circumstances create serious doubt on the latter’s
culpability.

Petitioner’s Subsequent Conduct

Not Conclusive of Guilt

To both the trial and the appellate courts, the conduct of petitioner
immediately after the incident was indicative of remorse. Allegedly, his guilt
was evident from the fact that he was "dumbfounded," according to the CA;
was "mum, pale and trembling," according to the trial court. These behavioral
reactions supposedly point to his guilt. Not necessarily so. His behavior was
understandable. After all, a minute earlier he had been calmly escorting a
person from the detention cell to the investigating room; and, in the next
breath, he was looking at his companion’s bloodied body. His reaction was to
be expected of one in a state of shock at events that had transpired so swiftly
and ended so regrettably.

Second Issue:

Self-Defense

Petitioner advanced self-defense as an alternative. Granting arguendo that he

intentionally shot Balboa, he claims he did so to protect his life and limb from
real and immediate danger.

Self-defense is inconsistent with the exempting circumstance of accident, in

which there is no intent to kill. On the other hand, self-defense necessarily
contemplates a premeditated intent to kill in order to defend oneself from
imminent danger.28 Apparently, the fatal shots in the instant case did not
occur out of any conscious or premeditated effort to overpower, maim or kill
the victim for the purpose of self-defense against any aggression; rather, they
appeared to be the spontaneous and accidental result of both parties’
attempts to possess the firearm.

Since the death of the victim was the result of an accidental firing of the
service gun of petitioner -- an exempting circumstance as defined in Article 12
of the Revised Penal Code -- a further discussion of whether the assailed
acts of the latter constituted lawful self-defense is unnecessary.

WHEREFORE, the Petition is GRANTED and the assailed Decision

REVERSED. Petitioner is ACQUITTED.

No costs.

SO ORDERED.

Sandoval-Gutierrez, Corona, and Carpio Morales, JJ., concur.

G.R. No. 137347 March 4, 2004

PEOPLE OF THE PHILIPPINES, appellee,

vs.
PO3 FERDINAND FALLORINA Y FERNANDO, appellant.

DECISION

CALLEJO, SR., J.:

For automatic review is the Decision1 of the Regional Trial Court of Quezon
City, Branch 95, convicting appellant PO3 Ferdinand Fallorina y Fernando of
murder for the killing of eleven-year-old Vincent Jorojoro, Jr. while the latter
was flying his kite on top of a roof. The court a quo sentenced the appellant to
suffer the death penalty.

The accusatory portion of the Information charging the appellant with murder
reads:

That on or about the 26th day of September 1998, in Quezon City,

Philippines, the said accused, with intent to kill, by means of treachery and
taking advantage of superior strength, did then and there, wilfully, unlawfully
and feloniously attack, assault and employ personal violence upon the person
of VINCENT JOROJORO, JR. y MORADAS, a minor, eleven (11) years of
age, by then and there, shooting him with a gun, hitting him on the head,
thereby inflicting upon him serious and mortal wound which was the direct
and immediate cause of his death, to the damage and prejudice of the heirs
of the said offended party.

CONTRARY TO LAW.2

Upon arraignment on October 20, 1998, the appellant, with the assistance of
counsel, pleaded not guilty. Thereafter, trial ensued.

Case for the Prosecution3

Eleven-year-old Vincent Jorojoro, Jr. was the third child of Vicente and
Felicisima Jorojoro. The family lived at Sitio Militar, Barangay Bahay Toro,
Project 8, Quezon City. Vincent, nicknamed "Hataw," was a grade three pupil
whose education was sponsored by the Spouses Petinato, an American
couple, through an educational foundation.4
The appellant was an officer of the Philippine National Police detailed in the
Traffic Management Group (TMG) based in Camp Crame, Quezon City, but
was on detached service with the Motorcycle Unit of the Metropolitan Manila
Development Authority (MMDA).

At about 2:30 p.m. of September 26, 1998, Vincent asked permission from his
mother Felicisima if he could play outside. She agreed.5 Together with his
playmate Whilcon "Buddha" Rodriguez, Vincent played with his kite on top of
the roof of an abandoned carinderia beside the road in Sitio Militar, Barangay
Bahay Toro. Beside this carinderia was a basketball court, where fourteen-
year-old Ricardo Salvo and his three friends, nicknamed L.A., Nono and Puti,
were playing backan, a game of basketball.

Ricardo heard the familiar sound of a motorcycle coming from the main road
across the basketball court. He was nonplussed when he looked at the
person driving the motorcycle and recognized the appellant. Ricardo knew
that the appellant abhorred children playing on the roof of the carinderia and
berated them for it. His friend Ong-ong had previously been scolded by the
appellant for playing on the roof.

Ricardo called on Vincent and Whilcon to come down from the roof. When the
appellant saw Vincent and Whilcon, the former stopped his motorcycle and
shouted at them, "Putang inang mga batang ito, hindi kayo magsibaba d'yan!"
After hearing the shouts of the appellant, Whilcon immediately jumped down
from the roof.6 Vincent, meanwhile, was lying on his stomach on the roof
flying his kite. When he heard the appellant's shouts, Vincent stood up and
looked at the latter. Vincent turned his back, ready to get down from the roof.
Suddenly, the appellant pointed his .45 caliber pistol7 towards the direction of
Vincent and fired a shot. Vincent was hit on the left parietal area. He fell from
the roof, lying prostrate near the canal beside the abandoned carinderia and
the basketball court.8

Whilcon rushed to help Vincent up but was shocked when he saw blood on
the latter's head. Whilcon retreated and left his friend.9 The appellant
approached Vincent and carried the latter's hapless body in a waiting tricycle
and brought him to the Quezon City General Hospital. Vincent was
pronounced dead on arrival.

Meantime, word reached Vincent's parents that their son was shot and
brought to the hospital. They rushed to the hospital, only to see their son's
already lifeless body. The appellant was nowhere to be found.

Dr. Ravell Ronald R. Baluyot of the Medico-Legal Division of the National

Bureau of Investigation (NBI) conducted an autopsy where he made the
following findings:
Cyanosis, lips and nailbeds.

Abrasion, 7.0 x 2.0 cms., right arm, middle third, postero-lateral aspect.

Contused-abrasion, 14.5 x 2.5 cms., postero-lateral chest wall, right side.

Gunshot Wound, Entrance, 3.0 x 0.8 cms., roughly ovaloid, with irregular
edges, abrasion collar widest postero-inferiorly, located at the head, left
parietal area, 9.0 cms. above and 8.0 cms. behind the left external auditory
meatus, directed forward upward and from left to right, involving the scalp,
fracturing the left parietal bone (punched-in), lacerating the left and right
cerebral hemispheres of the brain, fracturing the right parietal bone (punched-
out), lacerating the scalp, making an Exit wound, 3.3 x 1.0 cms., stellate with
everted and irregular edges, 12.0 cms. above and 2.0 cms. in front of the
right external auditory meatus.

Intracranial hemorrhage, subdural and subarachnoid, extensive, bilateral.

Scalp hematoma, fronto-parietal areas, bilateral.

Visceral organs, congested.

Stomach, one-fourth (1/4) filled with partially digested food particles.

CAUSE OF DEATH: GUNSHOT WOUND, HEAD.10

Dr. Baluyot testified that the victim died from a single gunshot wound in the
head. The bullet entered the left upper back portion of the head (above the
level of the left ear)11 and exited to the right side.12 Dr. Baluyot signed
Vincent's certificate of death.13

At about 3:00 p.m., SPO2 Felix Pajarillo and Police Inspector Abelardo P.
Aquino proceeded to the scene of the shooting but failed to find the victim
and the appellant. They proceeded to the Quezon City General Hospital
where they heard that the victim had died. They returned to the crime scene
and recovered an empty shell from a .45 caliber gun.14

On September 28, 1998, Major Isidro Suyo, the Chief of the MMDA
Motorcycle Unit to which the appellant was assigned on detached service,
reported to the Sangandaan Police Station that the appellant had not reported
for duty.15 At 2:10 p.m. of September 29, 1998, Police Senior Superintendent
Alfonso Nalangan, the Regional Director of the PNP-TMG, NCR, surrendered
the appellant to the Sangandaan Police Station together with his .45 caliber
pistol bearing Serial No. AOC-38701.16
Meantime, upon the urging of Vicente Jorojoro, Ricardo was brought to the
Department of Justice where he was enrolled under its Witness Protection
Program. He gave his sworn statement to NBI Special Agent Roberto
Divinagracia on September 29, 1998.17 On the same date, P/Insp. Abelardo
Aquino wrote the Chief of the PNP Crime Laboratory Examination Unit
requesting for the ballistic examination of the .45 caliber pistol with Serial No.
AOC-38701 and the empty shell of a .45 caliber gun found at the scene of the
shooting.18 Before noon on September 30, 1998, Divinagracia arrived at the
station and turned over two witnesses, Raymond Castro and Ricardo Salvo.
He also turned over the witnesses' sworn statements.19 On October 2, 1998,
on orders of the police station commander,20 Pajarillo took pictures of the
crime scene, including the carinderia and the roof with a bullet hole as part of
the office filing.21 He did not inform the prosecution that he took such
pictures, nor did he furnish it with copies thereof. However, the appellant's
counsel learned of the existence of the said pictures.

On October 5, 1998, P/Insp. Mario Prado signed Firearms Identification

Report No. FAIB-124-98 stating that:

FINDINGS:

Microscopic examination and comparison of the specimen marked "FAP"

revealed the same individual characteristics with cartridge cases fired from
the above-mentioned firearm.

CONCLUSION:

The specimen marked "FAP" was fired from the above-mentioned caliber .45
Thompson Auto Ordnance pistol with serial number AOC-38701.22

Vincent's family suffered mental anguish as a result of his death. As

evidenced by receipts, they spent P49,174 for the funeral.23

Case for the Appellant

The appellant denied shooting Vincent. He testified that at about 1:30 p.m. of
September 26, 1998, Macario Ortiz, a resident of Sitio San Jose, Quezon
City, asked for police assistance; Macario's brother-in-law was drunk and
armed with a knife, and was creating trouble in their house. The appellant's
house was located along a narrow alley (eskinita) perpendicular to the main
road. It was 200 meters away from Macario's house.24 Responding to the
call, the appellant took his .45 service revolver, cocked it, put the safety lock
in place and tucked the gun at his right waistline. He brought out his
motorcycle from the garage and slowly negotiated the bumpy alley leading to
the main road. Macario, who was waiting for him at the main road, called his
attention to his revolver which was about to fall off from his waist. The
appellant got distracted and brought his motorcycle to the right side of the
road, near the abandoned carinderia where he stopped. As he stepped his
right foot on the ground to keep himself from falling, the appellant lost his
balance and slipped to the right. At this point, the revolver fell to the ground
near his foot and suddenly went off. Bystanders shouted, "Ano yon, ano yon,
mukhang may tinamaan." He picked up his gun and examined it. He put the
safety latch back on and tucked it at his right waistline. He then told Macario
to wait for a while to check if somebody was really hit. He went near the
abandoned carinderia and saw Vincent sprawled to the ground. He picked up
the bloodied child, boarded him on a tricycle on queue and instructed its
driver, Boy Candaje, to bring the boy to the hospital.25 On board the tricycle
were Jeffrey Dalansay and Milbert Doring.

The appellant rode his motorcycle and proceeded to his mother's house in
Caloocan City but did not inform her of the incident. He then called his
superior officer, Major Isidro Suyo, at the Base 103, located at Roces
Avenue, Quezon City. The appellant informed Major Suyo that he met an
accident; that his gun fell and fired; and, that the bullet accidentally hit a child.
He also told his superior that he might not be able to report for work that day
and the following day. He assured his superior that he would surrender later.
He then went to Valenzuela City to the house of his friend PO3 Angelito Lam,
who was a motorcycle unit cop. The appellant stayed there for three days. He
also visited friends during that time.

On September 29, 1998, he went to the office of Major Suyo and surrendered
his .45 caliber pistol. Major Suyo accompanied and turned over the appellant
to the commanding officer at Camp Crame, Quezon City. The appellant was
subjected to a neuro and drug test. He stated that the results of the drug test
were negative. The appellant was then referred to the Sangandaan Police
Station for investigation.26 The pictures27 of the crime scene were given to
him by Barangay Tanod Johnny Yaket, shown in one of the pictures pointing
to a bullet hole. The appellant's testimony was corroborated in pari materia by
Macario Ortiz.

Leonel Angelo Balaoro, Vincent's thirteen-year-old playmate, testified that at

1:30 p.m. of September 26, 1998, he was playing basketball at Barangay
Bahay Toro, at the basketball court along the road beside the chapel. With
him were Ricardo, Puti and Nono. Vincent was on the rooftop of the
carinderia with Whilcon. While Puti was shooting the ball, an explosion
ensued. He and Ricardo ran beside the chapel near the basketball court. He
looked back towards the basketball court and saw the appellant, about 15
meters away from the canal, holding the prostrate and bloodied Vincent. He
did not see the appellant shoot Vincent. He did not report what he saw to the
police authorities. He was ordered by his father to testify for the appellant. He
also testified that his mother was related to Daniel, the appellant's brother.

On January 19, 1999, the trial court rendered judgment convicting the
appellant of murder, qualified by treachery and aggravated by abuse of public
position. The trial court did not appreciate in favor of the appellant the
mitigating circumstance of voluntary surrender. The decretal portion of the
decision reads:

WHEREFORE, judgment is hereby rendered finding the accused PO3

Ferdinand Fallorina y Fernando GUILTY beyond reasonable doubt of the
crime of Murder defined in and penalized by Article 248 of the Revised Penal
Code, as amended by Republic Act No. 7659, and in view of the presence of
the aggravating circumstance of taking advantage by the accused of his
public position (par. 1, Art. 14, Revised Penal Code), is hereby sentenced to
suffer the penalty of DEATH.

The accused is hereby ordered to indemnify the heirs of the late Vincent
Jorojoro, Jr. the amounts of P49,174.00, as actual damages; P50,000.00, as
moral damages; P25,000.00, as exemplary damages; and, P50,000.00, as
death indemnity.

The accused is to pay the costs.

The .45 caliber pistol, service firearm (Exh. "R") of the accused, shall remain
under the custody of the Court and shall be disposed of in accordance with
the existing rules and regulations upon the finality of this decision.28

The appellant assigned the following errors for resolution:

1. THE COURT A QUO SERIOUSLY ERRED IN NOT GIVING DUE

CREDENCE TO RELEVANT PHYSICAL EVIDENCE, WHICH IF
CONSIDERED COULD HAVE ALTERED THE CONCLUSIONS ARRIVED
AT BY THE COURT AND THE OUTCOME OF THE CASE.

2. THE COURT A QUO SERIOUSLY ERRED BY OVERSTEPPING THE

LINE OF JUDGING AND ADVOCACY, AND GOING INTO THE REALM OF
SPECULATION, PATENTLY DEMONSTRATING BIAS AND PARTIALITY.

3. THE COURT A QUO ERRED IN GIVING UNDUE CREDENCE TO THE

TESTIMONY OF RICARDO SALVO, ALLEGED PROSECUTION
EYEWITNESS, WHOSE TESTIMONY IS WANTING IN PROBABILITY, AS IT
IS CONTRARY TO THE COMMON EXPERIENCE OF MANKIND.
4. THE COURT A QUO GRAVELY ERRED IN INEQUITABLY
APPRECIATING EXCULPATORY AND INCULPATORY FACTS AND
CIRCUMSTANCES WHICH SHOULD HAVE BEEN CONSIDERED IN
FAVOR OF THE ACCUSED.

5. THE COURT A QUO ERRED IN FAILING TO APPRECIATE THE

MITIGATING CIRCUMSTANCE OF VOLUNTARY SURRENDER IN FAVOR
OF THE ACCUSED.

6. THE COURT A QUO GRAVELY ERRED IN APPRECIATING THE

AGGRAVATING CIRCUMSTANCE OF TAKING ADVANTAGE OF HIS
POSITION BY ACCUSED.29

The appellant asserts that the trial court failed to appreciate in his favor the
physical evidence, viz., the hole found on the rooftop of the carinderia where
Vincent was when he was shot. The appellant contends that the picture30
taken on October 2, 1998 by no less than SPO2 Felix Pajarillo, one of the
principal witnesses of the prosecution, and the pictures31 showing Barangay
Tanod Yaket pointing to a hole on the roof buttress the defense of the
appellant that the shooting was accidental. The appellant maintains that his
service revolver fell to the ground, hit a hard object, and as the barrel of the
gun was pointed to an oblique direction, it fired, hitting the victim who was on
the rooftop. The bullet hit the back portion of the victim's head, before exiting
and hitting the rooftop. The appellant posits that the pictures belie Ricardo's
testimony that he deliberately shot the victim, and, instead, complements Dr.
Baluyot's testimony that the gunshot wound came from somewhere behind
the victim, somewhere lower than the point of entrance. The appellant
invokes P/Insp. Mario Prado's testimony that if a gun hits the ground in an
oblique position, the gun will fire and the bullet will exit in the same position
as the gun, that is, also in an oblique position.

The Office of the Solicitor General, for its part, asserts that the contention of
the appellant is based on speculations and surmises, the factual basis for his
conclusion not having been proven by competent and credible evidence.
There is no evidence on record that the hole shown in the pictures32 was
caused by a bullet from a .45 caliber pistol. The appellant did not present
Barangay Tanod Johnny Yaket, who was shown in the pictures, to testify on
the matter. The appellant failed to prove that any slug was found on the
rooftop or under the roof which came from the appellant's .45 caliber pistol.
According to the Solicitor General, the pictures relied upon by the appellant
cannot overcome the positive and straightforward testimony of the young
eyewitness Ricardo Salvo.

We agree with the Office of the Solicitor General. Whether or not the
appellant is exempt from criminal liability is a factual issue. The appellant was
burdened to prove, with clear and convincing evidence, his affirmative
defense that the victim's death was caused by his gun accidentally going off,
the bullet hitting the victim without his fault or intention of causing it; hence, is
exempt from criminal liability under Article 12, paragraph 4 of the Revised
Penal Code which reads –

The following are exempt from criminal liability:

4. Any person who, while performing a lawful act with due care, causes an
injury by mere accident without fault or intention of causing it.

The basis for the exemption is the complete absence of intent and negligence
on the part of the accused. For the accused to be guilty of a felony, it must be
committed either with criminal intent or with fault or negligence.33

The elements of this exempting circumstance are (1) a person is performing a

lawful act; (2) with due care; (3) he causes an injury to another by mere
accident; and (4) without any fault or intention of causing it.34 An accident is
an occurrence that "happens outside the sway of our will, and although it
comes about through some act of our will, lies beyond the bounds of humanly
foreseeable consequences." If the consequences are plainly foreseeable, it
will be a case of negligence.

In Jarco Marketing Corporation v. Court of Appeals,35 this Court held that an

accident is a fortuitive circumstance, event or happening; an event happening
without any human agency, or if happening wholly or partly through human
agency, an event which under the circumstance is unusual or unexpected by
the person to whom it happens. Negligence, on the other hand, is the failure
to observe, for the protection of the interest of another person, that degree of
care, precaution and vigilance which the circumstances justly demand without
which such other person suffers injury. Accident and negligence are
intrinsically contradictory; one cannot exist with the other.36 In criminal
negligence, the injury caused to another should be unintentional, it being
simply the incident of another act performed without malice.37 The appellant
must rely on the strength of his evidence and not on the weakness of that of
the prosecution because by admitting having caused the death of the victim,
he can no longer be acquitted.

In this case, the appellant failed to prove, with clear and convincing evidence,
his defense.

First. The appellant appended to his counter-affidavit in the Office of the

Quezon City Prosecutor the pictures showing the hole on the roof of the
carinderia38 to prove that he shot the victim accidentally. However, when the
investigating prosecutor propounded clarificatory questions on the appellant
relating to the pictures, the latter refused to answer. This can be gleaned from
the resolution of the investigating prosecutor, thus:

Classificatory questions were propounded on the respondent but were

refused to be answered. This certainly led the undersigned to cast doubt on
respondent's allegations. The defenses set forth by the respondent are
evidentiary in character and best appreciated in a full-blown trial; and that the
same is not sufficient to overcome probable cause.39

Second. The appellant did not see what part of the gun hit the victim.40 There
is no evidence showing that the gun hit a hard object when it fell to the
ground, what part of the gun hit the ground and the position of the gun when it
fell from the appellant's waist.

Third. In answer to the clarificatory questions of the court, the appellant

testified that the chamber of his pistol was loaded with bullets and was
cocked when he placed it on his right waistline.41 He also testified that the
gun's safety lock was on. He was asked if the gun would fire if the hammer is
moved backward with the safety lock in place, and the appellant admitted that
even if he pulled hard on the trigger, the gun would not fire:

Q Is this your service firearm?

A Yes, Your Honor.

Q So the chamber might have been loaded when you went out of the
house?

A Yes, Your Honor.

Q What about the hammer, how was the hammer at that time when you
tucked the gun in your waistline?

A The hammer was cocked like this.

COURT:

Can you not stipulate that the hammer is moved backwards near the safety
grip.

ATTY. AND PROS. SINTAY:

Admitted, Your Honor.

ATTY. PEREZ:

Yes, Your Honor.

COURT: (to the witness)

Q You are a policeman, if there is a bullet inside the barrel of the gun and
then the hammer is moved backwards and therefore it is open, that means
that if you pull the trigger, the bullet will fire because the hammer will move
forward and then hit the base of the bullet?

A Yes, Your Honor.

Q Therefore, the gun was cocked when you came out?

A Yes, Your Honor.

Q You did not place the safety lock before you went out of your house?

A I safety (sic) it, sir.

Q So when you boarded the motorcycle, the gun was on a safety lock?

A Yes, Your Honor.

Q Will you please place the safety lock of that gun, point it upwards.

(witness did as instructed)

It is now on a safety locked (sic)?

A Yes, Your Honor.

Q Pull the trigger if the hammer will move forward?

(witness did as instructed)

A It will not, Your Honor.

COURT: (to the parties)

Q Can you not admit that at this position, the accused pulled the trigger,
the hammer did not move forward?
PROS. SINTAY AND ATTY. PRINCIPE:

Admitted, Your Honor.

COURT: (to the witness)

Q And therefore at this position, even if I pull the trigger many times, a
bullet will not come out from the muzzle of the gun because the hammer is on
a safety locked (sic)?

A Yes, Your Honor.

Q Even if I pushed it very hard, it will not fire the gun?

A Yes, Your Honor.

Q Alright, I will ask you again a question. If the hammer of the gun is like
this and therefore it is open but it is on a safety lock, there is space between
the safety grip which is found below the hammer, there is a space, is it not?

A Yes, Your Honor.

Q That even if I pushed the safety grip forward, like this.

The Court gave the gun to the accused for him to demonstrate.

(to the witness)

You push it forward in order to push the hammer. Hard if you want but do not
remove the safety lock.

(witness did as instructed)

The witness tried to push the safety grip and it does not touch the hammer
even if the hammer is cocked.42

Fourth. The trial court was witness as the appellant's counsel himself proved
that the defense proffered by the appellant was incredible. This can be
gleaned from the decision of the trial court:

3. More importantly, and which the Court considers it as providential, when

the counsel of the accused was holding the gun in a cocked position and the
safety lock put in place, the gun accidentally dropped on the cemented floor
of the courtroom and the gun did not fire and neither was the safety lock
moved to its unlock position to cause the hammer of the gun to move forward.
The safety lock of the gun remained in the same position as it was when it
dropped on the floor.43

Fifth. After the shooting, the appellant refused to surrender himself and his
service firearm. He hid from the investigating police officers and concealed
himself in the house of his friend SPO3 Angelito Lam in Valenzuela City, and
transferred from one house to another for three days to prevent his arrest:

Q So did you surrender that afternoon of September 26, 1998?

A No, Your Honor.

Q I thought you were surrendering to Major Suyo?

A I was but I was not able to surrender to Major Suyo, Your Honor.

Q Why, you were already able to talk to Major Suyo?

A Because at that time I was already confused and did not know what to
do, Your Honor.

ATTY. PRINCIPE: (to the witness)

Q What is your relation with PO3 Angelito Lam of Valenzuela?

A Just my co-motorcycle unit cop in the TMG, sir.

Q Did I hear you right that you slept at the residence of PO3 Lam for three
days?

A Yes, sir.

Q Why instead of going home to your residence at Bahay Toro?

A Because I am worried, sir.

COURT: (to the witness)

Q So what did you do for three days in the house of PO3 Lam?

A During daytime, I go to my friends, other friends and in the evening, I go

back to the house of PO3 Lam, Your Honor.
Q So if you were able to visit your friends on September 27 or 28, 1998
and then returned to the house of PO3 Lam in the evening, why did you not
go to Major Suyo or to your 103 Base?

A Your Honor, during those days I am really calling Major Suyo.

Q Why did you not go to your office at Camp Crame, Quezon City?

A At that time, I did not have money, Your Honor.

Q What is the connection of you having money to that of informing your

officer that you will surrender?

A What I know, Your Honor, is that if I do that I will already be detained

and that I will have no money to spend.

ATTY. PRINCIPE: (to the witness)

Q Mr. Witness, from the time of the incident up to Sept. 29, 1998, you did
not even visit your family in Barangay Bahay Toro?

A No, sir.

COURT: (to the witness)

Q Did you send somebody to visit your family?

A No, Your Honor.

ATTY. PRINCIPE: (to the witness)

Q Did you cause to blotter the shooting incident of Vincent?

A I was not able to do that, sir.

Q You did not even talk to the Bgy. Officials in Bgy. Bahay Toro?

A No sir, because I already brought the child to the hospital.44

The conduct of the appellant after the shooting belies his claim that the death
of the victim was accidental and that he was not negligent.

We agree with the encompassing disquisitions of the trial court in its decision
on this matter:
The coup de grace against the claim of the accused, a policeman, that the
victim was accidentally shot was his failure to surrender himself and his gun
immediately after the incident. As a police officer, it is hard to believe that he
would choose to flee and keep himself out of sight for about three (3) days if
he indeed was not at fault. It is beyond human comprehension that a
policeman, who professes innocence would come out into the open only three
(3) days from the incident and claim that the victim was accidentally shot.
Human behavior dictates, especially when the accused is a policeman, that
when one is innocent of some acts or when one is in the performance of a
lawful act but causes injury to another without fault or negligence, he would,
at the first moment, surrender to the authorities and give an account of the
accident. His failure to do so would invite suspicion and whatever account or
statement he would give later on becomes doubtful.

For the accused, therefore, to claim that Vincent was accidentally shot is
odious, if not, an insult to human intelligence; it is incredible and unbelievable,
and more of a fantasy than a reality. It was a deliberate and intentional act,
contrary to accused's claim, that it happened outside the sway of his will.45

It is a well-entrenched rule that findings of facts of the trial court, its calibration
of the testimonies of the witnesses, its assessment of the credibility of the
said witnesses and the probative weight of their testimonies are accorded
high respect, if not conclusive effect by the appellate court, as the trial judge
was in a better position to observe the demeanor and conduct of the
witnesses as they testified.46 We have carefully reviewed the records of the
case and found no reason to deviate from the findings of the trial court.

The testimony of prosecution witness Ricardo Salvo deserves credence. He

testified in a positive and straightforward manner, which testimony had the
earmarks of truth and sincerity. Even as he was subjected to a grueling cross-
examination by the appellant's counsel, he never wavered in his testimony.
He positively identified the appellant as the assailant and narrated in detail
how the latter deliberately aimed his gun and shot the victim. The relevant
portions of his testimony are quoted:

Q: While playing basketball with Nono, LA and Puti, do you remember of

any unusual incident which took place?

A: Yes, sir.

Q: What was that unusual incident?

A: When Vincent was shot, sir.

Q: Who shot Vincent?

A: Ferdinand Fallorina, sir.

Q: And in what place that Vincent was shot by Fallorina?

A: He was at the roof of the karinderia, sir.

Q: Was there any companion of Vincent?

A: Yes, sir.

Q: What was the position of Vincent at that time that you saw him and
Fallorina shot him?

A: "Nakatalikod po siya."

Q: You included in this Exhibit O your drawing the figure of a certain

Jeffrey and you and his tricycle? Why did you include this drawing?

A: Because it was in the tricycle where Vincent was boarded to and

brought to the hospital.

(Witness referring to Exhibit O-11)

Q: And who was the driver of that tricycle?

A: It was Jeffrey who drove the tricycle, sir.

Q: You also drew here a motorcycle already marked as Exhibit O-7. Why
did you include the motorcycle?

A: Because Fallorina was riding on that motorcycle at that time.

COURT: (to the witness)

Q: So when Ferdinand Fallorina shot the boy, the motorcycle was

moving?

A: It was stationary, your Honor.

Q: Did you see where he came from, I am referring to Fallorina before you
saw him shot the boy?

A: He came from their house, Your Honor.

Q: What was his attire, I am referring to Ferdinand Fallorina?

A: He was wearing white shirt and blue pants, Your Honor.

ATTY. PRINCIPE: (to the witness)

Q: At that time that Fallorina shot the victim, was Buddha still there?

A: He ran, sir. He jumped in this place, sir.

(Witness is pointing to a place near the canal already marked as Exhibit O-

14).

Q: Now from the witness stand that you are now seated. Can you tell the
Court how far where (sic) you from Fallorina at that time of the shooting?

COURT:

Can the prosecution and the accused stipulate that the distance pointed to by
the witness is more or less 7 meters.

ATTY. PRINCIPE: (to the witness)

Q: How about the distance of Fallorina from Vincent, can you tell that?

COURT: (to the witness)

Can you point a distance between Fallorina and the boy at that time the body
(sic) was shot?

COURT:

10 meters more or less?

…

Q: How long have you known Ferdinand Fallorina before the incident?

A: More or less two years, sir.

Q: Why do you know him?

A: I usually see him in that place at Sitio Militar, especially on Sundays,

sir.

Q: How many shots did you hear?

A: Only one, sir.

Q: Do you recognize the gun used by Fallorina?

A: Yes, sir.

Q: What was that gun?

A: .45 cal., sir.

Q: Are you familiar with .45 cal.?

A: No, sir.

Q: Why do you know that it was .45 cal.?

A: Because that kind of gun, I usually see that in the movies, sir.

Q: Ricardo, you said that you have known Fallorina for two (2) years and
you saw him shot Vincent on September 26, 1998 at around 2:30 in the
afternoon. Please look around the courtroom now and point at the person of
PO3 Ferdinand Fallorina?

CT. INTERPRETER:

Witness is pointing to a male person the one seated at the back of the lady
and wearing a yellow shirt and maong pants and when asked of his name, he
stated his name as Ferdinand Fallorina.

ATTY. PRINCIPE: (to the witness)

Q: Can you tell to the Court whether you heard utterances at that time
that he shot the victim?

A: Yes, sir.

Q: What was that?

A: "Putang inang mga batang ito, hindi kayo magsisibaba diyan!"

Q: After Fallorina shot Vincent Jorojoro, you saw Vincent Jorojoro falling
from the roof, what about Fallorina, what did he do?

A: He was still on board his motorcycle and then he went at the back of
the karinderia where Vincent fell, Your Honor.

Q: And after he went at the back of the karinderia and looked at Vincent
Jorojoro, what did he do?

A: He carried Vincent, Your Honor.

Q: And after carrying Vincent, what did he do?

A: He boarded Vincent in the tricycle.

Q: What about the gun, what did he do with the gun?

A: I do not know anymore.47

The appellant even uttered invectives at the victim and Whilcon before he
shot the victim. In fine, his act was deliberate and intentional.

It bears stressing that of the eyewitnesses listed in the Information as

witnesses for the prosecution, only Ricardo Salvo remained steadfast after he
was brought under the Witness Protection Program of the Department of
Justice. He explained that the reason why he testified for the prosecution,
despite the fact that the appellant was a policeman, was because he pitied
the victim's mother who was always crying,48 unable to obtain justice for her
son. We find no ill motive why Ricardo would falsely testify against the
appellant. It was only his purest intention of ferreting out the truth in this
incident and that justice be done to the victim.49 Hence, the testimony of
Ricardo is entitled to full faith and credence.

The Crime Committed by the Appellant

We agree with the trial court that the appellant committed murder under
Article 248 of the Revised Penal Code qualified by treachery. As the trial
court correctly pointed out, Vincent was shot intentionally while his back was
turned against the appellant. The little boy was merely flying his kite and was
ready to get down from the roof when the appellant fired a shot directed at
him. The essence of treachery is the sudden and unexpected attack on an
unsuspecting victim without the slightest provocation on his part.50
Nonetheless, Vincent was an eleven-year-old boy. He could not possibly put
up a defense against the appellant, a police officer who was armed with a
gun. It is not so much as to put emphasis on the age of the victim, rather it is
more of a description of the young victim's state of helplessness.51 Minor
children, who by reason of their tender years, cannot be expected to put up a
defense. When an adult person illegally attacks a child, treachery exists.52
The abuse of superior strength as alleged in the Information is already
absorbed by treachery and need not be considered as a separate
aggravating circumstance.53

We, however, note that the trial court appreciated the aggravating
circumstance of abuse of public position in this case. We reverse the trial
court on this score.

There is no dispute that the appellant is a policeman and that he used his
service firearm, the .45 caliber pistol, in shooting the victim. However, there is
no evidence on record that the appellant took advantage of his position as a
policeman when he shot the victim.54 The shooting occurred only when the
appellant saw the victim on the rooftop playing with his kite. The trial court
erred in appreciating abuse of public position against the appellant.

The trial court did not, however, err in ruling that the appellant is not entitled
to the mitigating circumstance of voluntary surrender. Surrender is said to be
voluntary when it is done by the accused spontaneously and made in such a
manner that it shows the intent of the accused to surrender unconditionally to
the authorities, either because he acknowledges his guilt or he wishes to
save them the trouble and expense necessarily incurred in his search and
capture.55

In this case, the appellant deliberately evaded arrest, hid in the house of PO3
Lam in Valenzuela City, and even moved from one house to another for three
days. The appellant was a policeman who swore to obey the law. He made it
difficult for his brother-officers to arrest him and terminate their investigation.
It was only after the lapse of three days that the appellant gave himself up
and surrendered his service firearm.

Under Article 248 of the Revised Penal Code, the penalty for murder is
reclusion perpetua to death. Since there is no modifying circumstance in the
commission of the crime, the appellant should be sentenced to suffer the
penalty of reclusion perpetua, conformably to Article 63 of the Revised Penal
Code.

IN LIGHT OF ALL THE FOREGOING, the Decision of the Regional Trial

Court of Quezon City, Branch 95, is AFFIRMED WITH MODIFICATION. The
appellant PO3 Ferdinand Fallorina y Fernando is found guilty beyond
reasonable doubt of the crime of murder under Article 248 of the Revised
Penal Code and, there being no modifying circumstances in the commission
of the crime, is hereby sentenced to suffer the penalty of reclusion perpetua.
He is also ordered to pay the heirs of the victim Vincent Jorojoro, Jr. the
amount of P49,174 as actual damages; P50,000 as moral damages; P50,000
as civil indemnity; and P25,000 as exemplary damages.

SO ORDERED.
G.R. No. L-6897 February 15, 1912

THE UNITED STATES, plaintiff-appellee,

vs.
POLICARPIO TAYONGTONG, defendant-appellant.

Jose M. Arroyo for appellant.

Acting Attorney-General Harvey for appellee.

MORELAND, J.:

The defendant in this case was convicted of the crime of homicide by

negligence (homicidio por imprudencia temeraria). He appealed, basing his
whole case here upon the proposition that the evidence does not warrant the
conviction.

It appears that on the 19th day of January, 1911, one Severino Resume was
engaged in painting telephones poles located along the highway between
Jaro and Iloilo. On that day he was killed by being run over by an automobile
driven by the defendant. The highway at the point where Severino met his
death was straight, of considerable width, and in good condition. The
telephone pole upon which Severino was at work at the time of the accident
was outside of the beaten portion of the highway and located about 2 feet into
the grass at the side. Between it and the edge of the road was a pathway
used by people traveling on foot. The machine which caused the death of the
deceased is a large passengers, and having upon each side and extending
about 2 feet out beyond the wheels a rack or other contrivance for the
carrying of parcels, baggage, and freight. It is used solely for the purpose of
carrying passengers back and forth between Iloilo and Jaro.

The accident happened at about 10 o' clock in the morning. The automobile
was then engaged in making its third trip from Iloilo at Jaro, and was loaded
to its fullest capacity. There were several people who claim to have witnessed
the accident. One of them, the principal witness for the prosecution, and its
only witness who saw the occurrence, named Pablo Tayson, is alleged to
have been standing within a few feet of the deceased, talking with him, at the
time he was run down. Another person, who was near by at the time of the
accident, was Basilio Severaldo, who was engaged in the same work as the
deceased but, just prior to the passage of the automobile, had gone away
from the locality where the accident occurred and saw nothing of what
happened. Two other persons, who have been produced as witnesses for the
defendant, allege that they were present and saw the whole occurrence.

Pablo Tayson, who, as we have said, is the only witness for the prosecution
testifying directly to the facts and substantially the only witness upon whom
the prosecution relies for a conviction, testified that at the time of the accident
he and the deceased were located on the left-hand side of the highway going
from Iloilo at Jaro; that he was standing a few feet from the deceased who
was also on the same side of the highway; that the deceased was standing
up painting the side of the telephone pole toward Jaro; that the telephone
pole was, therefore, between the deceased and Iloilo, the direction from
which the automobile was coming; that the road on that day was very dusty
and the automobile, as he saw it coming from Iloilo toward him and the
deceased, was raising a cloud of dust which he was drifting to the side of the
road upon which he and the deceased were located. This witness further
asserted that he saw the automobile when it was within about 1,200 feet of
the place where he stood; that it was coming at a rate of speed variously
termed by him "very fast" and "at full speed;" that, on observing the machine
as it approached, he saw that the driver, the accused, was turning the
steering wheel first in one direction and then the other, as if uncertain what
course he was going to pursue; that the machine, as a consequence, was
darting first to one side of the road and then to the other, thus zigzagging
back and forth across the traveled portion of the highway; that just before
reaching the place where deceased was painting the telephone pole it
crossed to the side of the road opposite to him and then suddenly started
back across the road opposite to him and then suddenly started back across
the road, striking the deceased as he stood painting; that by the impact the
deceased was thrown upon the ground somewhat toward the front of the
machine, which was going so fast that, although the accused was not within
the reach of its wheels, nevertheless, the "suction," as the witness called it,
created by the swift passage of the machine drew the deceased under its
wheels where he was run over and crushed.

From the testimony of the witness it does not appear that the deceased
moved or stirred in any way until he was hit by the automobile.

The accused testified, and produced several witnesses to support his

testimony, that at the time of the accident he was driving the machine, which
was loaded to its fullest capacity with passengers and baggage, at about 10
to 15 miles an hour; that he was driving in or near the center of the road and
pas to either side; that the machine was under full control and was going
steadily and smoothly without deviating to the right or to the left; that on
approaching the place where the witness Pablo Tayson stood he saw him
turn his back toward the road and place his cap over his face in such a way
as to cover his nose, mouth and eyes, evidently to protect them from the
cloud of dust which was rolling from behind the machine over toward the side
of the road on which he was; that the deceased, as the machine approached,
probably seeing the cloud of dust which it was raising and which would
inevitably drift in his direction, and observing his companion, Pablo Tayson,
under the necessity of protecting himself from the dust in the manner
described, just before the machine reached a point opposite him, started to
cross the road to the other side, evidently to escape the dust; that he
misjudged the distance and started too late; that in attempting to cross he
placed himself squarely in front of the machine; that his movement was so
sudden and unexpected and, when he reached the road, he was so close to
the machine that it was impossible to stop it in time to avert the catastrophe;
that he did everything that was possible to be done to avoid the accident; that
he put on both brakes as hard as possible and turned the machine as much
as could be done under the circumstances; that in proof thereof he shows
that only the front wheel of the machine passed over the body of the
deceased, it having been turned by him sufficiently so that the mind wheel
missed him, and that the machine was stopped a very few feet beyond the
point where the accident occurred. The accused testified, and his evidence in
this regard is uncontradicted, that he was thoroughly qualified as a driver,
having served his apprenticeship on this very road and this very machine
before being employed.

The accused denies absolutely that portion of the story told by Pablo Tayson
in which he alleges that the accused was driving at a high rate of speed; that
he was zigzagging from one side of the road to the other; and that he struck
the deceased while he stood painting the telephone pole.

We are satisfied that the evidence is not sufficient to convict. On the contrary,
we believe that, under all of the facts and circumstances of the case, the fair
preponderance of the evidence indicates that the deceased met his death in
substantially the manner described by the accused. In the first place, the
testimony of Pablo Tayson is affected by an attack made upon his credibility
during the progress of the trial. It was shown that, on the preliminary
investigation had by the justice of the peace, this witness testified, precisely
as the accused asserted in his evidence, that just as the machine was
arriving at a point in the highway opposite him, he, desiring to avoid the
unpleasantness of the dust, turned his back toward the road and covered his
face with his cap, thereby excluding the dust from his mouth, eyes, and
nostrils. That he so testified on the preliminary investigation, according to the
record thereof, is admitted. In his testimony on the trial of this case he stated,
at first, that he turned his right side to the road and placed his hand over the
side of his face. leaving his eyes uncovered, so that he was able to see and
did see the deceased at the time he was run down. Upon cross-examination
he changed this testimony to the extent of saying that he covered the right
side of his face with his cap instead of his hand, maintaining, however, that
he did not cover his eyes and that he was able to see the deceased and all
that transpired. When confronted with the evidence which he gave on the
preliminary examination, he sought to explain the difference between his two
declarations by stating that the testimony before the justice of the peace,
which was reduced to writing and signed by him, was in a different language
from that which he was able to speak and to speak and that it was not
translated so that he knew what he was signing.

In the second place, the testimony of this witness is unreasonable. It is

improbable that a machine as large as the one in question, going at the rate
of speed described by Pablo Tayson, could zigzag from one side of the
highway to the other in the manner described by the witness. It is still more
improbable that this machine could have dodged from the right-hand side of
the road to the left and, in some unknown manner, picked the deceased out
from behind the telephone pole, dragged him into the highway and there run
over him. It is not clear how an automobile can run over a man when it is
admitted that he is on the opposite side of a telephone post from the machine
which ruins him down, with only a portion of his body extending beyond it.
Even if the machine had started toward him in the manner described he
would undoubtedly have seen it quickly enough to have passed around the
other side of the post and save himself from being touched. This is especially
evident when we observe that it is admitted that the deceased stood facing
the automobile all the time and could see it plainly and its every movement. It
is difficult to believe that a machine of the size of the one in question, driven
at the high rate of speed alleged by the witness, could have turned suddenly,
darted toward the ditch, and struck the deceased while located partly on the
opposite side of a post from the machine without having collided with the post
or gone into the ditch, it being remembered that the post was not more than 6
feet from the ditch.

From the transcription given of the machine it appears, as we have already

seen, that there were certain portions of the body of the machine extending
over and beyond the wheels, which were used as receptacles for the
baggage and bundles of passengers. This projection, under the theory of the
prosecution, would necessarily have been the portion of the machine to hit
the deceased for the reason that no other part of the machine could have
come in contact with him without the projection referred to striking the
telephone pole. If this projection is that which struck the deceased first, then
he would have been thrown into the ditch away from the machine and not into
the highway under the machine. This is what would necessarily have
happened when we remember that at the time the deceased was struck the
machine was going at full speed toward the ditch. It was apparently to avoid
the contradiction of his previous testimony inherent in this necessary result
that the witness testified that the force which prevented the deceased from
going into the ditch and drew him under the machine was the "suction"
created by its rapid passage along the highway.

It is undisputed evidence of the case that that portion of the machine which
struck the deceased first was the mudguard over the left wheel. This fact
alone shows the impossibility of the machine having hit the deceased while
standing at the post, as it is admitted that no part of the automobile collided
with the post. If the deceased had been at the post, as described by Tayson,
the guard could not possibly have struck him without the extended portions
described having struck the post itself.

On the otherhand, the story told by the accused and supported by some of
the passengers who saw the accident is entirely reasonable, accords with
common sense and ordinary experience. It was clearly told, in a manner frank
and straightforward, was free from contradictions and needs no explanation
or excuses.

We have read with detention the opinion upon which the judgment of
conviction is based. In spite of careful study, we are unable to discover
anything therein that alters our views in relation to the merits. As between the
two theories, the one of the prosecution and the other of the defense, we
cannot have, under the evidence and record, any hesitation in choosing. The
evidence presented by the prosecution itself, and it is upon that evidence
alone that the conviction must stand, every other fact in the record being
conspicuously in exculpation of the accused, shows the deceased standing
upon the east side of a telephone pole facing an automobile coming toward
him from the west, about half of his body extending beyond the pole toward
the highway on his left. On his right was the highway drainage ditch. The pole
was outside of the travelled portion of the highway so far that a footpath lay
between it and said traveled portion. The automobile was coming toward him
at a high rate of speed, to judge from the evidence of this witness, at least 40
miles an hour, possibly more. The machine was not proceeding in a straight
line but it was going from one side of the road to the other. Just before
arriving opposite the deceased it darted to the right-hand side of the road and
then, turning, it started toward the left-hand side directly at the deceased. All
of these things the deceased saw, yet he did not move or attempt to save
himself in any way. On the contrary, he stood still and permitted the machine
to strike him upon his left side. Having collided with him, the machines turned
back toward the center of the highway, carrying the deceased with it,
depositing him within the traveled portion of the highway, where it ran over
him. On the other hand, the evidence of the defendant shows that he was
driving the machine at a moderate rate of speed within the usually traveled
portion of the highway, guiding it in a substantially straight line and handling it
in the usual and ordinary manner. The machine, one of extraordinary size and
capable of carrying 35 passengers with their baggage and effects, was
incapable of running at the rate of speed described by the prosecution.
Arriving at a point in the highway just in front of the deceased, the latter, to
avoid the cloud of dust which was drifting to his side of the road, started to
cross the road to the other side. He miscalculated the time and distance and
as a result was struck by the automobile and run over. His action in starting
across the road was so sudden and unexpected and, when he reached the
road, he was so close to the automobile, that it was impossible to stop the
machine in time to save him. The body was picked up within the traveled
portion of the highway.

Which of these two stories is the most reasonable? We have no hesitation in

answering. The story of the prosecution presents so many things that are
unreasonable and incredible and for which there exists in the record no
explanation whatever, and concerning which no reasonable explanation can
give, that it must necessarily be rejected. Even if, going at such a high rate of
speed, the accused could have driven the automobile from one side of the
road to the other as alleged, what could possibly be his reason for so doing?
It was market day at Jaro; this was his third trip; the machine was loaded to
its utmost capacity, both with passengers and with baggage; he was
doubtedly running according to a schedule and would have no time to waste
in going from one side of the road to the other; no reason is suggested and
one can be supplied why a driver should handle his machine in the manner
described by the only witness for the prosecution who saw the whole
occurrence. Instead of Kepping to the travelled portion of the highway, which
was admittedly in fine condition, why should the accused go outside of it,
across a foothpath used by pedestrians, and skin alongside of the telephone
poles located on that side? What object could he have had in thus exposing
himself, his passengers, and his machine to the risks and dangers of plunging
into the drainage ditch or driving against the telephone poles or meeting the
other disasters and dangers which might be encountered outside of the
usually traveled portion of the highway? No explanation of such extraordinary
conduct is given in the record and none can be conceived. He was not
engaged in taking a party of hilarious companions on a "joy" ride, nor in giving
an exhibition of his skill in handling an automobile of that size and class. It
does not appear that he was drunk or foolish. He was engaged in a business
enterprise, employed by a businessman purposes. What could possibly have
been his purpose when, or arriving at a point in front of the deceased, he
turned his automobile across the road and started squarely toward the
telephone pole and the deceased? That he saw the deceased and that the
deceased saw him is admitted. What spirit or purpose could have animated
him in driving his automobile outside of the highway directly toward not only a
telephone post but the drainage ditch itself in order to run down an
unoffending person? What motive can be assigned by the prosecution when it
asserts that the accused did this unaccountable thing? What purpose does
the prosecution allege the accused sought to subserve when, by this conduct,
he placed the safety of his passengers and of his machine, as well as of
himself, at stake in thus driving directly toward a place of great danger?
Above all, why did the deceased stand still, instead of stepping around behind
the post, and permit himself to be crushed to death by the machine which he
clearly saw bearing down upon him? These unreasonable and accountable
things must be satisfactorily explained by the prosecution when it is
confronted by the statement of the accused, supported by a number of
disinterested witnesses, that none of those things ever occurred. We have
already pointed out that, giving the story as told by the prosecution credence,
it would have been little short of an impossibility for the body of the deceased
to have found itself in the travelled portion of the highway after the accident.
He would inevitably have been driven further away from the highway and
toward the ditch by the blow from the machine going in the direction in which
it was alleged by the prosecution to have been going.

Turning to the story of the event as given by the defendant and his witnesses,
we meet nothing that requires explanation. There can, therefore, be no
hesitation on our part in accepting the truth of the story told by the defendant.

Although we have held in a recent case (U. S. vs. Reyes, 10 Off. Gaz., 1045),
a criminal action for homicide by imprudencia temeraria, that contributory
negligence on the part of the person killed is no defense, provided the driver
of automobile himself was negligent and that negligence was the proximate
cause of the death, nevertheless, that doctrine does not in any way inveigh
against the proposition which we here assert that, where death is due to the
negligence of the decedent himself and not to the negligence of the driver of
the automobile, the latter cannot be held for homicide. In this case the death
of the deceased was due entirely to his own negligence. There is not
sufficient reliable proof in the record to establish negligence on the part of the
accused. There being no negligence, he is not responsible, no matter what
the result of the accident may have been.

The judgment of conviction is reversed and the accused acquitted.

Torres, Johnson, Carson and Trent, JJ., concur

G.R. No. 186420 August 25, 2009

PEOPLE OF THE PHILIPPINES, Appellee,

vs.
SAMUEL ANOD, Appellant.

RESOLUTION

NACHURA, J.:

Before this Court is an Appeal,1 assailing the Court of Appeals (CA)

Decision2 dated August 27, 2008 which affirmed with modification the
Decision3 dated July 3, 2001 of the Regional Trial Court (RTC) of Bislig,
Surigao del Sur, Branch 29, finding appellant Samuel Anod (appellant) and
his co-accused Lionel Lumbayan (Lumbayan) guilty beyond reasonable doubt
of the crime of Murder committed against Erlando Costan (Costan).

The Facts

Appellant and Lumbayan were charged with the crime of Murder in an

Information dated June 23, 1997 which reads:

That on or about 10:30 o’clock (sic) in the evening, more or less, of May 16,
1997, at Purok 1, [B]arangay Borbonan, [M]unicipality of Bislig, [P]rovince of
Surigao del Sur, Philippines and within the jurisdiction of this Honorable
Court, the above-named [appellant] conspiring, confederating and mutually
helping one another for a common purpose, with intent to kill, treachery and
evident premeditation, did then and there willfully, unlawfully and feloniously
attack, assault[,] stab and hack one Erlando Costan with the use of a pointed
bolo, thereby inflicting upon the latter multiple stab and hack wounds which
cause[d] his instantaneous death, to the damage and prejudice of the heirs of
the said Costan.

CONTRARY TO LAW: In violation of Article 248 of the Revised Penal

Code.41avvphi1

During the arraignment on November 12, 1997, appellant and Lumbayan

entered pleas of "not guilty" to the crime charged. Thereafter, trial on the
merits ensued. In the course of the trial, two varying versions arose.

Version of the Prosecution

Before midnight of May 16, 1997, the victim, Costan, was stabbed and
hacked to death in his house situated in Barangay Borbonan,5 Bislig, Surigao
del Sur (Borbonan). His body was found by Miguel Platil. The following day,
May 17, 1997, appellant and Lumbayan surrendered to Andromeda Perater,
Barangay Chairperson of Borbonan (Barangay Chairperson), before whom
they admitted the killing of Costan. On May 18, 1997, appellant and
Lumbayan were brought to the police station. The Barangay Chairperson
testified before the RTC that appellant narrated and admitted to her that he
and Lumbayan killed Costan. This narration of facts

was entered in the Barangay Logbook, duly signed by appellant and

Lumbayan, and authenticated by two (2) other witnesses.

Version of the Defense

Appellant averred that at around 7 p.m. of May 16, 1997, he and Lumbayan
were having a drinking spree in the store of one Dodoy Advincula in
Borbonan where they were joined by a certain Angges. An hour later,
appellant asked his companions to go home. On their way home and upon
reaching a dark place, Lumbayan suddenly stabbed Angges. He then invited
appellant to sleep at the house of Lumbayan's aunt. Subsequently, however,
Lumbayan told appellant that they would spend the night at Costan's house.

Upon reaching Costan's house, Lumbayan called for the victim. Costan
opened the door for them and immediately thereafter, Lumbayan poked a
knife at Costan and ordered appellant to tie the victim while the latter was
lying down. He then ordered appellant to stab Costan. Out of fear of being
stabbed by Lumbayan who, at the time, was poking a knife at appellant's
breast, appellant stabbed Costan once at the back. Thereafter, appellant and
Lumbayan went to the house of Lumbayan's aunt. They surrendered to the
Barangay Chairperson allegedly upon the prodding of appellant. On the other
hand, Lumbayan denied all the charges, claiming that he and appellant slept
early on the night of the incident at his aunt's house. The following day, they
were fetched and brought to the house of the Barangay Chairperson.

The RTC's Ruling

On July 3, 2001, the RTC found appellant and Lumbayan guilty beyond
reasonable doubt of the crime of Murder and sentenced them to suffer the
penalty of reclusion perpetua and to pay the widow of Costan in the amount
of ₱50,000.00 as damages.

Only appellant interposed an appeal6 assailing the RTC Decision.

Accordingly, the case was elevated to this Court on automatic review.
However, in our Resolution7 dated September 6, 2004, and pursuant to our
ruling in People v. Mateo, the case was transferred to the CA.

The CA's Ruling

In its Decision dated August 27, 2008, the CA affirmed the factual findings of
the RTC with modification, imposing upon appellant the penalty of reclusion
perpetua without eligibility for parole and ordering him to pay the heirs of
Costan the amount of ₱75,000.00 as civil indemnity, ₱50,000.00 as moral
damages, ₱25,000.00 as exemplary damages, and ₱25,000.00 as actual
damages.

Aggrieved, appellant appealed. In their respective Manifestations filed before

this Court, appellant, as represented by the Public Attorney's Office, and the
Office of the Solicitor General (OSG) opted to adopt their respective Briefs
filed before the CA as their Supplemental Briefs.

Hence, this Appeal with the following assignment of errors:

I.

ASSUMING WITHOUT ADMITTING THAT APPELLANT'S CULPABILITY

WAS PROVEN BEYOND REASONABLE DOUBT, THE COURT A QUO
GRAVELY ERRED IN NOT CONSIDERING THE EXEMPTING
CIRCUMSTANCES OF IRRESISTIBLE FORCE AND UNCONTROLLABLE
FEAR.

II.

THE COURT A QUO GRAVELY ERRED IN APPRECIATING TREACHERY

AND EVIDENT PREMEDITATION AS QUALIFYING CIRCUMSTANCES.8

Appellant argues that he blindly obeyed Lumbayan and stabbed Costan, an

act that was against his will and done under the compulsion of an irresistible
force and uncontrollable fear for his life. Moreover, appellant contends that
the qualifying circumstances of evident premeditation and treachery were not
proven beyond reasonable doubt. Except for the testimony of the Barangay
Chairperson which did not prove these qualifying circumstances, no other
witness was presented to corroborate the same.9

On the other hand, the OSG opines that the force supposedly exerted upon
appellant was not sufficient to exempt him from criminal liability. Apart from
initially refusing Lumbayan's order, as appellant alleged, he did not offer any
protest or objection to the said order. Appellant could have easily evaded
Lumbayan, or he could have defended himself in equal combat as he himself
was armed with a knife. The OSG claims that, while it may be conceded that
evident premeditation was not adequately proven, treachery was, however,
duly established. Thus, the crime committed was murder.10
Our Ruling

We dismiss the appeal.

Appellant failed to sufficiently show that the CA committed any reversible

error in its assailed Decision. Under Article 12 of the Revised Penal Code, a
person is exempt from criminal liability if he acts under the compulsion of an
irresistible force, or under the impulse of an uncontrollable fear of equal or
greater injury, because such person does not act with freedom. However, we
held that for such a defense to prosper, the duress, force, fear, or intimidation
must be present, imminent and impending, and of such nature as to induce a
well-grounded apprehension of death or serious bodily harm if the act be
done. A threat of future injury is not enough. In this case, as correctly held by
the CA, based on the evidence on record, appellant had the chance to
escape Lumbayan's threat or engage Lumbayan in combat, as appellant was
also holding a knife at the time. Thus, appellant's allegation of fear or duress
is untenable. We have held that in order for the circumstance of
uncontrollable fear may apply, it is necessary that the compulsion be of such
a character as to leave no opportunity for escape or self-defense in equal
combat.11 Therefore, under the circumstances, appellant’s alleged fear,
arising from the threat of Lumbayan, would not suffice to exempt him from
incurring criminal liability.

Indubitably, the killing of the victim was attended by treachery. Treachery

exists when the offender commits a crime against persons, employing means,
methods or forms in the execution thereof which tend, directly and
specifically, to ensure its execution, without risk to himself arising from any
defense or retaliatory act which the victim might make. Here, appellant tied
Costan while the latter was lying down before he and Lumbayan stabbed the
latter to death; thus, ensuring the execution of the crime without risk to
themselves. Obviously, Costan could not flee for his life or retaliate. This
aggravating circumstance qualifies the crime to murder.12

We apply the cardinal rule that factual findings of the trial court, its calibration
of the testimonies of the witnesses, and its conclusions anchored on its
findings are accorded with great respect, if not conclusive effect, more so
when affirmed by the CA. The exception is when it is established that the trial
court ignored, overlooked, misconstrued, or misinterpreted cogent facts and
circumstances that, if considered, would change the outcome of the case. We
have reviewed the records of the RTC and the CA and we find no reason to
deviate from the lower courts' findings and their uniform conclusion that
appellant is indeed guilty beyond reasonable doubt of the crime of murder.13

As to damages, we held in People of the Philippines v. Judito Molina and

John Doe, and Joselito Tagudar,14 that when death occurs due to a crime,
the following damages may be awarded: (1) civil indemnity ex delicto for the
death of the victim; (2) actual or compensatory damages; (3) moral damages;
(4) exemplary damages; and (5) temperate damages.

Civil indemnity is mandatory and granted to the heirs of the victim without
need of proof other than the commission of the crime. In this regard, however,
we reduce the award made by the CA, from ₱75,000.00 to ₱50,000.00.

It is worth stressing that, at the outset, the appellant, together with Lumbayan,
was sentenced by the RTC to suffer the penalty of reclusion perpetua. Thus,
the CA's reliance on our ruling in People v. dela Cruz15 was misplaced. In
dela Cruz, this Court cited our ruling in People v. Tubongbanua,16 wherein
we held that the civil indemnity imposed should be ₱75,000.00. However, the
instant case does not share the same factual milieu as dela Cruz and
Tubongbanua. In the said cases, at the outset, the accused were sentenced
to suffer the penalty of death. However, in view of the enactment of Republic
Act No. 9346 or the Act Prohibiting the Imposition of the Death Penalty on
June 24, 2006, the penalty meted to the accused was reduced to reclusion
perpetua. This jurisprudential trend was followed in the recent case of People
of the Philippines v. Generoso Rolida y Moreno, etc.,17 where this Court also
increased the civil indemnity from ₱50,000.00 to ₱75,000.00. Based on the
foregoing disquisitions and the current applicable jurisprudence, we hereby
reduce the civil indemnity awarded herein to ₱50,000.00.18 We affirm all the
other awards made by the CA.

WHEREFORE, the appealed Decision dated August 27, 2008 of the Court of
Appeals in CA-G.R. CR-H.C. No. 00195, finding appellant Samuel Anod guilty
of the crime of murder and sentencing him to suffer the penalty of reclusion
perpetua is AFFIRMED with MODIFICATION in that the award of civil
indemnity of ₱75,000.00 is reduced to ₱50,000.00. In all other respects, the
assailed Decision is AFFIRMED.

SO ORDERED
G.R. No. 157933 August 10, 2004

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ESMER MONTENEGRO; FREDDIE MACA (At Large); KIKING SALAHAY (At
Large); BADIL SALAHAY (At Large); MAMA MONTENEGRO (At Large); and
FLORIE MEDRANO (At Large), accused;
ESMER MONTENEGRO, accused-appellant.

DECISION

AZCUNA, J.:

Appellant Esmer Montenegro was charged together with Freddie Maca,

Kiking Salahay, Badil Salahay, Mama Montenegro and Florie Medrano before
the Regional Trial Court of Tandag, Surigao del Sur, Branch 27, for
Kidnapping and Serious Illegal Detention on October 22, 2001. Inasmuch as
all the other accused were at large, the trial proceeded only with respect to
herein appellant Esmer Montenegro who had surrendered and who has been
detained by the authorities. After trial, he was found guilty by the lower court
and sentenced to death.

The case is before us on automatic review.

The Information

Appellant and his co-accused were charged under an information that reads,
as follows:

The undersigned prosecutor hereby accuses KIKING SALAHAY, alias

ENRIQUE MENDOZA, FREDDIE MACA, BADIL SALAHAY, ESMER
MONTENEGRO, MAMA MONTENEGRO, and FLORIE MEDRANO, with the
crime of KIDNAPPING AND SERIOUS ILLEGAL DETENTION, committed as
follows:

That on the 23rd day of August 2001, about 7:30 in the morning, more or
less, at Umalag, San Miguel, Surigao del Sur, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, conspiring,
confederating and mutually helping one another, did, then and there, willfully,
unlawfully and feloniously kidnap and forcibly bring one Gerardo Mag-isa, 42
years old, to an undisclosed place for the purpose of extorting ransom,
wherein the latter was detained and deprived of his liberty for a period of
seven (7) days, to the damage and prejudice of said victim.
CONTRARY TO LAW. (In violation of Article 267 as amended by R.A.
7659).1

Upon arraignment, appellant pleaded not guilty.2

Pre-Trial

On July 5, 2002 a pre-trial hearing was conducted and terminated on the

same day, where the following admissions were made by appellant and
recorded in a Pre-Trial Order:3

1. His identity as Esmer Montenegro;

2. the date and place of the incident, namely, August 23, 2001 at about 7:30
in the morning at Umalag, San Miguel, Surigao del Sur;

3. that with him were his co-accused Kiking Salahay, alias Enrique Mendoza,
Freddie Maca, Badil Salahay, Mama Montenegro and Florie Montenegro;

4. the existence of the four-page letter of the victim addressed to his wife
Rose;

5. that the victim Gerry Mag-isa was kidnapped and detained for seven days;
appellant however alleged that he acted under the compulsion of an
irresistible force;

6. the one-page letter also dated August 23, 2001 by the victim addressed to
Rose.

Appellant, however, proposed for admission by the prosecution the defense

of having acted under the compulsion of an irresistible force. The prosecution
rejected the proposal.

The Prosecution’s Evidence

The prosecution offered the following as its exhibits:

Exhibit "A"

4-page letter dated August 23, 2001 signed by Gerry Mag-isa and addressed
to his wife Rose;
Exhibit "B"

1-page letter signed by Gerry and addressed to his wife Rose.

The prosecution did not present any witness nor any other evidence and
relied mainly on the admissions made by appellant during the pre-trial hearing
and on Exhibits "A" and "B" which it formally offered in evidence.

On July 5, 2002, the trial court issued the following Order:4

After the pre-trial and considering the admission of the defense in so far as
the accused Esmer Montenegro is concerned, Assistant Provincial
Prosecutor Elpidio I. Digaum moved to be allowed to formally offer his
evidence and rest his case. Granted. Formally offered in evidence are the
following exhibits namely: the 4-page letter dated August 23, 2001 signed by
Gerry the victim in this case addressed to his wife Rose marked as Exhibit
"A" and the 1-page letter also dated August 23, 2001 signed by the same
victim Gerry addressed to his wife Rose. The alleged purpose is to prove
demand for money by the alleged kidnappers. The defense admitted the
existence of Exhibits "A" and "B" and denied the purposes for which the same
are offered.

Considering the admission of the existence of Exhibits "A" and "B", the same
are ordered admitted. The purpose of the offer and objection thereto will be
evaluated in the appreciation of the evidence. The prosecution having rested
its case, the reception of defense is set for August 13, 2002 at 8:30 in the
morning. x x x

Evidence For The Defense

Appellant, in his defense, testified that in the early morning of August 23,
2001, he was fetched from his house located at Barangay Caromata, San
Miguel, Surigao del Sur, by his uncle Freddie Maca, who asked him to
accompany him to collect money from a certain person and who told him that
he will give him P500. They proceeded to Barangay Umalag and when they
reached the place, he was made to wait at the waiting shed while his uncle
went to the house of a certain councilor to fetch a relative by the name of
Mama Montenegro. When Freddie Maca came back, he was accompanied by
Mama Montenegro and Kiking Salahay and Badil Salahay whom he noticed
to be all armed with .45 and .38 caliber guns. Then they all proceeded to the
mountain of Umalag.
They proceeded to the mountain of Umalag because the person who was
indebted to Freddie Maca was invited to that area. When they reached their
destination, Kiking Salahay pointed his gun at a person who later turned out
to be Gerry Mag-isa.

Appellant asked Freddie Maca for permission to go home because he was

afraid of what the group did. Freddie Maca relayed his request to Kiking
Salahay. Fearing that he would report the matter to the police, Kiking Salahay
said that it would be better for all of them if they just killed appellant. Appellant
then begged for his life and stayed with the group.

The group proceeded to Barangay Bitaugan and stayed there for one day and
two nights. On the second night, however, at about 11:00 o’clock in the
evening, they discovered that Gerry Mag-isa had escaped. Seizing the
opportunity to leave the group, he asked permission to go home to which the
group agreed.5

Upon reaching Barangay Caromata, he immediately reported the incident to

Barangay Captain Felicula Gran who promised to assist him. She
accompanied him in surrendering to Sgt. Nacional of the Philippine Army who
picked him up and brought him to the Municipal Hall of San Miguel where he
was detained until the case was filed.6

The Trial Court’s Decision

After trial, the lower court, finding that the prosecution had established the
crime charged, rendered its decision on November 20, 2002 convicting
appellant of the crime of Kidnapping with Serious Illegal Detention and
sentencing him to death.7

In its decision, the trial court presented the following facts:8

Evidence for the prosecution show[s] that on August 23, 2001, at about 7:30
in the morning, at Umalag, San Miguel, Surigao del Sur, the victim Gerry
Mag-isa was at the mining site together with Arsenio L. Darasan, Ricardo P.
Cabangbang, and Joseph C. Flores. At that moment, a man arrived who said
that he was instructed by the Barangay Captain of Umalag, San Miguel,
Surigao del Sur, by the name of Kapitan Piling, to invite Gerry Mag-isa and to
bring him to her residence because it was the fiesta of her Barangay.
Because they were so busy at that time, Gerry Mag-isa refused to go with him
and instead handed him an amount of P200.00 when he left. Not long after
fifteen minutes had passed, after said person left, three men arrived with the
same intention of inviting him to the house of Kapitan Piling. However, when
the three men were at the makeshift hut they suddenly pulled out their .45
and .38 caliber handguns and ordered Gerry Mag-isa, Arsenio L. Darasan,
Ricardo P. Cabangbang and Joseph C. Flores to drop to the ground. That
while still lying face on the ground, they saw Kiking Salahay, the leader of the
group, hand over a piece of paper to Gerry Mag-isa and [Kiking Salahay]
ordered him to write a note to his wife, telling her to give the amount of Two
Million Pesos (P2,000,000.00) for the release of her husband. That soon after
the note was written, they instructed Arsenio Darasan, Joseph C. Flores and
Ricardo P. Cabangbang to bring said note to the wife of the victim. That after
they left with Gerry Mag-isa, they immediately went to Tandag, Surigao del
Sur (See Joint Affidavit of Arsenio L. Darasan, et al. in page 24 of the record).

The allegation of the victim Gerry Mag-isa (See Affidavit on page 23 of the
record) shows that he was forcibly abducted and kidnapped about 7:00 in the
morning of August 23, 2001, at Barangay Umalag, San Miguel, Surigao del
Sur. He stated, that he was treated well by the kidnappers, except that when
he answered to the call of nature, he was watched closely and they were
asking money from his family. The kidnappers also took from him the amount
of P320.00 which was spent for their food in the mountains and his chainsaw
amounting to P18,000.00. After spending 7 days at the hands of the captors,
specifically on August 30, 2001, at about 1:00 o’clock in the morning, while
they were asleep, he was able to escape and reached Barangay Bagyang,
San Miguel. He was able to know the leader of the kidnappers by the name of
Kiking Salahay, alias Enrique Mendoza because they called him "kumander".
They were armed with a .45 caliber, two .38 caliber handguns and sharp
bladed military knives.

Appellant in his brief assigns a single error, to wit;

THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED–

APPELLANT OF THE CRIME CHARGED.

In support of his sole assignment of error, appellant seeks exemption from

criminal liability under Article 12, Paragraph 5 of the Revised Penal Code
which provides that "any person who acts under the compulsion of an
irresistible force" is exempt from criminal liability. He cites the following
circumstances which would place him under the umbrella of this exemption:

1. He was forced to join the kidnappers because he was threatened with

bodily harm and death.

2. He did not attempt to escape because the leader Kiking Salahay and his
companions carried with them .45 and .38 caliber firearms.

3. He was not allowed to leave the group because Salahay feared that the
accused would report the matter to the police.9
The specific act which allegedly constitutes this irresistible force is the
statement of Kiking Salahay that it would be better for the group if they just
killed appellant in response to his request to be allowed to go home.
Appellant thus begged for his life and was left with no choice but to stay with
the group.10

As a result, appellant argues that he was reduced to a mere instrument. He

did not act of his own volition and the fear of being killed and the fact that his
uncle Freddie Maca had moral ascendancy over him forced him to stay with
the group. These circumstances, therefore, he contends, exempt him from
criminal liability. In support, appellant cites the ruling in People v. Del
Rosario.11

The Solicitor General’s Recommendation

The Solicitor General filed a Manifestation and Motion (In Lieu of Brief),12
recommending the acquittal of appellant on the ground that the exacting proof
of guilt beyond reasonable doubt was not met, thus:

xxx

13. The appeal is meritorious

14. Under the criminal justice system, the burden of proof lies with the
prosecution. (Rule 115, Section 1, Revised Rules of Criminal Procedure).
That burden must be discharged on the strength of the prosecution’s own
evidence, without relying on the weakness of the defense. Proof beyond
reasonable doubt, or that quantum of proof sufficient to produce a moral
certainty that would convince and satisfy the conscience of those who are to
act in judgment, is indispensable to overcome the constitutional presumption
of innocence (People v. Batocoy, G.R. Nos. 137458-59, prom. April 24,
2003).

15. Such proof is lacking in this case.

16. The prosecution merely offered in evidence the following documents:

1. A 4-page letter dated August 23, 2001 signed by Gerry Mag-isa, addressed
to his wife. The letter contained a demand of P150,000.00 ransom instead of
P2M;

2. A 1-page letter dated August 23, 2001 signed by Gerry Mag-isa, This letter
was addressed to Rose informing her that he was a hostage and that the
kidnappers were demanding a P2M ransom.
17. Sadly, the prosecution did not present testimonial evidence to prove the
guilt of appellant of the crime charged. The evidence of the prosecution does
not measure up to the requisite moral certainty, notwithstanding the
admission by the defense of the existence of the four-page letter of the victim
Gerry Mag-isa addressed to his wife (Exh. "A"). Furthermore, the admissions
of appellant were not reduced into writing and signed by him and his counsel
in violation of Section 2, Rule 118 of the Revised Rules of Criminal
Procedure. This means that the admissions, assuming that these are
incriminating, cannot be used against appellant.

18. Even as appellant testified that he was with the other accused, there is no
evidence that he conspired with them to kidnap the victim, detain him for
more than three (3) days, and demand for ransom in exchange for his
release.

19. In view of the abject failure of the prosecution to present witnesses to

prove the guilt of appellant, his testimony, therefore, remains undisturbed.

xxx

20. From [appellant’s] declaration, it appears that appellant had no idea of the
kidnapping scheme because he was just invited by his uncle to accompany
him in collecting an obligation from a certain person. Likewise, significant are
the acts of appellant in reporting the incident to the authorities and turning
himself in. These were not disputed by the prosecution.

21. Absent any overt act of appellant which would be construed as necessary
or essential to the perpetration of the kidnapping for ransom and serious
illegal detention, mere presence at the locus criminis cannot by itself be a
valid basis for conviction. Mere knowledge, acquiescence to or agreement to
cooperate, is not enough to constitute one as a party to a conspiracy, absent
any active participation in the commission of the crime, with a view to the
furtherance of the common design and purpose. Conspiracy transcends
companionship (People v. James Patano, et al., G.R. No. 129306, prom.
March 14, 2003). Conspiracy must be proved as convincingly as the criminal
act itself, which may be deducted from the acts of appellant pointing to a joint
purpose, concerted action and community of interest (People v. Guittap, G.R.
No. 144621, prom. May 9, 2003). It is hornbook doctrine that conspiracy must
be proved by positive and convincing evidence (People v. Patano, G.R. No.
129306, prom. March 14, 2003), the same quantum of evidence as the crime
itself, that is, by proof beyond reasonable doubt (People v. Caballero, G.R.
Nos. 149028-30, prom. April 2, 2003; People v. Gregorio, G.R. No. 153781,
prom. September 24, 2003).
22. To be sure, the trial court could not rely on the affidavits not affirmed by
the affiants’ court testimony. The admission of hearsay evidence would be a
violation of the constitutional provision that the accused shall enjoy the right
to confront and cross-examine the witness testifying against him (People v.
Feliciano Ulit, G.R. Nos. 131799-801, prom. February 23, 2004).

23. Consequently, it was egregious error for the trial court to consider the joint
affidavit of Arsenio Darasin, Ricardo Cabanbang and Joseph Flores, as well
as the affidavit of the victim. Affidavits of persons who are not presented to
testify on the truth of the contents thereof are hearsay evidence (Vallarta v.
Court of Appeals, 163 SCRA 587 [1989]).

x x x.13

The Court’s Decision

We have reviewed the entire records of this case and we fully agree with the
position taken by the Solicitor General. As the Solicitor General recognizes,
we operate under a system that unshakeably puts the burden of proof on the
prosecution.14

This burden has not been discharged, and was hardly even attempted to be
discharged, by the prosecution in this case. It was content to rely on the
admissions made at the pre-trial hearing and the introduction and offer in
evidence of the two letters allegedly written by the victim to his wife.

The admissions at the pre-trial hearing, however, showed only that:

1. Gerry Mag-isa was kidnapped and detained for seven days;

2. appellant Esmer Montenegro was among the group at the mountains of

Umalag where the victim was brought, which consisted of Kiking Salahay,
alias Enrique Mendoza, Freddie Maca, Badil Salahay, Mama Montenegro and
Florie Montenegro;

3. the letters informed the victim’s wife of his kidnapping and detention and
the amount demanded for his release;

The pre-trial admissions do not show that appellant participated in the

kidnapping of Gerry Mag-isa.

The evidence on record of appellant’s participation is his own narration of

how he found himself with the group without knowing that a kidnapping had
transpired and, in his defense, he insists that he stayed with the group
because of the compulsion of an irresistible force exerted on him when Kiking
Salahay stated in reply to his request to be allowed to go home, that it would
be better for all of them if they just killed appellant.

If the prosecution had proved conspiracy as alleged in the information, these

admissions would be relevant and material in determining the guilt of
appellant. However, no proof to this effect was presented. Hence, it cannot be
determined what the specific role of appellant was in the commission of the
crime. No conspiracy having been proved, appellant cannot be convicted for
a crime where his participation is not established. As noted by the Solicitor
General in his brief, "absent any overt act of appellant which would be
construed as necessary or essential to the perpetration of the kidnapping for
ransom and serious illegal detention, mere presence at the locus criminis
cannot by itself be a valid basis for conviction. Mere knowledge,
acquiescence to or agreement to cooperate, is not enough to constitute one
as a party to a conspiracy, absent any active participation in the commission
of the crime."15

The trial court utilized the affidavit of the victim Gerry Mag-isa as well as the
joint affidavit of Arsenio L. Darasin, Ricardo P. Cabangbang, Joseph C.
Flores and Roy I. Tante to support its findings of appellant’s participation and
culpability.

The record is bereft of any evidence to show that these affidavits were ever
presented or offered as evidence for the prosecution, nor were the persons
who executed them ever presented to affirm what was in the affidavits nor to
offer oral testimony on the circumstances of the alleged kidnapping. Hence,
they are of no value in the determination of the guilt of appellant. As we said
in Osias v. Court of Appeals,16 "allegations in an affidavit not testified upon in
the trial are mere hearsay evidence and have no substantial evidential value."
In People v. Santos,17 we ruled:

Indeed it appears that the only source of the above findings of fact of the trial
court is "Exhibit C," the sworn statement of Romeo Fernandez. Since the
affiant himself never took the stand during the trial, his sworn statement is
absolutely inadmissible in evidence for being hearsay. The admission of such
hearsay evidence and the conviction of the accused on the basis thereof
gravely violated their constitutional right to meet their witnesses face to face
and to subject them to the rigid test of cross-examination. As we said in an
earlier case, "the constitutional right to confrontation precludes reliance on
such affidavits. Such a constitutional safeguard cannot be satisfied unless the
opportunity is given the accused to test the credibility of any person, who, by
affidavit or deposition would impute the commission of an offense to him."
Furthermore, Section 34, Rule 132 of the Rules of Court specifically provides
that "the court shall consider no evidence which has not been formally
offered. The purpose for which the evidence is offered must be specified."

Again, we find nothing in the record that would show that these affidavits
were offered in evidence.

Lastly, without going into the validity of appellant’s defense of having acted
under the compulsion of an irresistible force, the fact established by his own
testimony which was not rebutted by the prosecution, was that he had no idea
that a kidnapping had been committed as he was just invited by his uncle to
go with him to collect money from someone. When he tried to leave the
group, he was threatened with death. Nowhere in all the evidence of the
prosecution does it show that appellant performed any overt act that would
implicate him as an accomplice or participant in the crime.

The trial court brushed away this defense as not sufficiently proved. It also
refused to believe the testimonies of appellant and of the Barangay Captain
of Caromate, Felicula Gran, that he reported the incident after he was
released, as mere "afterthought." Yet what the trial court failed to perceive
was that the evidence for the prosecution was weak, if not nil. Consequently,
the trial court, in an untenable lapse of judgment, decided to consider only the
alleged weaknesses of the defense to arrive at the conclusion that appellant
is guilty and not the strength or weaknesses of the prosecution’s case. From
our review of the records, we find that the prosecution in this case has utterly
failed in its duty to overcome by proof beyond reasonable doubt the
presumption of innocence of appellant.

WHEREFORE, the decision of the Regional Trial Court of Tandag, Surigao

del Sur, Branch 27, dated November 20, 2002, in Criminal Case No. 4306, is
REVERSED and SET ASIDE and appellant Esmer Montenegro is hereby
ACQUITTED.

The National Bureau of Investigation is DIRECTED to assist in the arrest of

the other accused in this case who are at large, for them to undergo
arraignment and trial. Let a copy of this Decision be furnished its Director.

No costs.

SO ORDERED.
G.R. No. 178771 June 8, 2011

PEOPLE OF THE PHILIPPINES, Appellee,

vs.
ALBERTO ANTICAMARA y CABILLO and FERNANDO CALAGUAS
FERNANDEZ a.k.a. LANDO CALAGUAS,

DECISION

PERALTA, J.:

This is an appeal from the Decision1 of the Court of Appeals (CA) in CA-G.R.
CR-H.C. No. 00556, affirming the trial court's judgment finding appellants
Fernando Calaguas Fernandez (Lando) and Alberto Cabillo Anticamara (Al)
guilty beyond reasonable doubt of the crime of Murder in Criminal Case No.
4498-R and of the crime of Kidnapping and Serious Illegal Detention in
Criminal Case No. 4481-R.

Lando, Al, Dick Tañedo (Dick), Roberto Tañedo (Bet), Marvin Lim (Marvin),
Necitas Ordeñiza-Tañedo (Cita), and Fred Doe are charged with the crimes
of Murder and of Kidnapping/Serious Illegal Detention in two separate
Informations, which read:

For Murder (Criminal Case No. 4498-R)

That on or about the early morning of May 7, 2002, in Sitio Rosalia, Brgy. San
Bartolome, Municipality of Rosales, Province of Pangasinan, and within the
jurisdiction of this Honorable Court, the above-named accused, being then
armed with a hand gun, conspiring, confederating and mutually helping one
another, with intent to kill, with treachery, evident premeditation and superior
strength, did then and there, willfully, unlawfully and feloniously take Sulpacio
Abad, driver of the Estrellas, hog tied (sic) him, brought (sic) to a secluded
place, shoot and bury in a shallow grave, to the damage and prejudice of the
heirs of the victim.

Contrary to Article 248, Revised Penal Code.

For Kidnapping/Serious Illegal Detention (Criminal Case No. 4481-R)

That on or about the 7th day of May 2002, more or less 3:00 o'clock in the
early morning, at the Estrella Compound, Brgy. Carmen East, Municipality of
Rosales, Province of Pangasinan, and within the jurisdiction of this Honorable
Court, the above-named accused, who are private persons, conspiring,
confederating and mutually helping one another, armed with firearms, did
then and there willfully, unlawfully and feloniously kidnap Sulpacio Abad and
AAA,2 both employees of the Estrellas, thereby depriving them of their liberty,
all against their will for a period of twenty-seven (27) days.

That in the course of the kidnapping, Sulpacio Abad was killed and buried in
Brgy. Carmen, Rosales, Pangasinan and AAA was raped for several times by
her abductors.

Contrary to Article 267 of the Revised Penal Code, in relation to RA 7659.

When arraigned of the aforementioned crimes, Lando, Al and Cita all pleaded
not guilty, while Dick, Bet, Marvin and Fred Doe remained at-large.
Thereafter, a joint trial ensued.

As summarized in the People's brief, the facts as established by the evidence

of the prosecution are as follows:

About 3 o'clock in the early morning of May 7, 2002, househelper AAA and
driver Abad Sulpacio were sleeping in their employers' house located in
Barangay Carmen East, Rosales, Pangasinan. Their employers, Conrado
Estrella and his wife, were out of the house at that time (TSN, December 4,
2002, pp. 4-7). Momentarily, AAA was jolted from sleep when she heard
voices saying, "We will kill her, kill her now" and another voice saying, "Not
yet!" Hiding under her blanket, AAA later heard someone saying, "We only
need money, we only need money." Thereafter, she heard someone talking in
Ilocano which she could not understand. Then she heard somebody say,
"Cebuana yan, Cebuana yan, kararating lang galing Cebu." AAA heard the
persons conversing which she estimated about four to five meters away
(TSN, ibid., pp. 11-12).

Thereafter, AAA observed about six (6) persons enter the house, who she
later identified as accused Dick Tañedo, Marvin Lim, Bert Tañedo, a certain
Fred and appellants Alberto Anticamara alias "Al Camara," and Fernando
Fernandez alias "Lando Calaguas." One of the intruders approached her and
told her not to move (TSN, ibid., p. 8).

Later, when AAA thought that the intruders were already gone, she attempted
to run but to her surprise, someone wearing a bonnet was watching her.
Someone, whom she later recognized as Dick Tañedo, tapped her shoulder.
AAA asked Tañedo, "Why Kuya?" Tañedo replied, "Somebody will die." After
a brief commotion, appellant alias "Lando Calaguas" asked the group saying,
"What shall we do now?" They then decided to tie AAA. Later, AAA was
untied and led her outside the house. Outside, AAA saw Abad, who was also
tied and blindfolded, seated inside a vehicle (TSN, April 26, 2004, pp. 6-10).
The group later brought AAA and Abad to the fishpond owned by their
employers. AAA saw Cita Tañedo there. The group brought Abad outside the
vehicle and led him away (TSN, December 2, 2002, pp. 13-18; TSN,
February 17, 2003, pp. 5-8).

Later, alias "Fred" returned telling the group, "Make the decision now, Abad
has already four bullets in his body, and the one left is for this girl." When Cita
Tañedo made a motion of cutting her neck, appellant alias "Lando Calaguas"
and "Fred" boarded the vehicle taking along with them AAA. They later
proceeded towards San Miguel Tarlac, where Lando Calaguas resided. They
stayed in Lando's house where they kept AAA from May 7 to May 9, 2002
(TSN, December 4, 2002, pp. 18-22; TSN, February 17, 2003, pp. 7-9).

On May 9, 2002, appellant Lando Calaguas told AAA that Fred and Bert
Tañedo would kill her. Lando then brought AAA to a hotel in Tarlac, telling
AAA that he would leave her there as soon as Fred and Bert Tañedo leave
the place. However, once inside the hotel room, appellant Lando Calaguas
sexually molested AAA. Lando told AAA to follow what he wanted,
threatening her that he would turn her over to Fred and Bert Tañedo. After
Lando raped AAA, he brought her back to his house. Later, Fred, Bert
Tañedo and Lando Calaguas transferred AAA to Riles, Tarlac (TSN, ibid., pp.
9-13).

AAA was brought to the residence of Fred's niece, a certain Minda, where
Fred kept AAA as his wife. At nighttime, Fred would repeatedly ravish AAA,
threatening her that he would give her back to appellant Lando Calaguas
who, AAA knew, killed Abad Sulpacio. She was afraid Lando might also kill
her (TSN, ibid., pp. 14-16).

On May 22, 2002, Fred brought AAA to Carnaga (should be Kananga), Leyte,
together with his wife Marsha and their children. AAA stayed in the house of
Marsha's brother Sito, where she was made as a house helper (TSN, ibid., p.
17).

On June 4, 2002, AAA escaped from the house of Sito. She proceeded to
Isabel, Leyte and sought the help of her friend Susana Ilagan. After hearing
AAA's plight, Susana called AAA's brother in Cebu, who later fetched AAA in
Isabel, Leyte and brought her to Mandaue City. When they arrived in
Mandaue City, they immediately reported the incident to the police
authorities. On June 23, 2002, AAA executed a Sworn Statement (Exh. "D,"
TSN, ibid., pp. 18-20).

Meanwhile, Dr. Ronald Bandonil, Medico-Legal Officer of the National Bureau

of Investigation (NBI), conducted an autopsy on the cadaver of Sulpacio
Abad. Dr. Bandonil prepared Autopsy Report No. N-T2-23-P (Exh. "A") which
contains the following findings, to wit:

x Remains placed in a sealed metal coffin, wrapped in two (2) layers of black,
plastic garbage bags, and covered in (sic) a red-stripped cotton blanker. A
thick layer of lime embeds the whole torso.

x Remains in a far advanced state of decomposition, with the head

completely devoid of soft tissue. A cloth is wrapped around the eyesockets
and tied to the back of the skull. The skull does not show any signs of dents,
chips nor fractures. The other recognizable body part is the chest area which
retained a few soft tissues and skin, but generally far advanced in
decomposition. The whole gamut of internal organs have undergone
liquefaction necrosis and have been turned into grayish-black pultaceous
masses. Worn on top of the remaining chest is a sando shirt with observable
holes at the left side, both front and back. A large hole is seen at the area of
the left nipple, with traces of burning at its edges and inward in direction. A
tied cloth is also observable at the remnants of the left wrist.

x At the upper chest, which is the most recognizable, remaining and intact
part of the torso, a hole, 1.0 cm. x 2.0 cms., with signs of burning, edges
inverted, is seen at the left anterior axillary line just below the left nipple.
Another hole is seen 1.5 cms. x 2.5 cms. in diameter, edged averted (sic) at
the right chest, along the right anterior axillary line, 5.0 cms. below the right
nipple. A 3rd hole, almost unrecognizable is seen at the left groin area.

x The other parts of the cadaver are too far advanced in decomposition to
have remarkable findings.

CAUSE OF DEATH:

GUNSHOT WOUNDS, TRUNK3

In his defense, Lando denied having committed the crimes charged and
interposed alibi as a defense. He claims that at the time of the incident on
May 7, 2002, he was in Barangay Maligaya, San Miguel, Tarlac, with his
family. He denied ever going to the Estrella farm in Sitio Rosalia, Barangay
San Bartolome, Rosales, Pangasinan.

Al claimed that he acted as a lookout and was tasked to report to his

companions if any person or vehicle would approach the house of the
Estrellas. He said that he was forced to follow what was ordered of him and
did not report the matter to the police because he was threatened to be killed,
including the members of his family who were in Cebu.
On August 23, 2004, the Regional Trial Court (RTC) of Rosales, Pangasinan,
Branch 53, rendered its Decision,4 the dispositive portion of which states:

WHEREFORE, judgment is hereby rendered as follows:

I. In Criminal Case No. 4498-R for Murder:

A. Accused Nicetas "Cita" Tañedo is hereby acquitted of the crime charged

for insufficiency of evidence;

B. Accused Fernando Calaguas Fernandez (alyas Lando Calaguas) and

Alberto Anticamara (alyas Al Camara) are hereby found guilty beyond
reasonable doubt, as principal, of the crime of Murder qualified by treachery,
defined and penalized under Article 248 of the Revised Penal Code.
Considering the presence of aggravating circumstance of pre-meditation, with
no mitigating circumstance to offset the same, the penalty of DEATH is
hereby imposed upon the two (2) accused Fernando Calaguas Fernandez
(Lando Calaguas) and Alberto Anticamara (Al Camara). They are also
ordered jointly and severally [to] pay the heirs of the victim Abad Sulpacio the
following:

1) Fifty Thousand Pesos (₱50,000.00) as moral damages;

2) Seventy-Five Thousand Pesos (₱75,000.00) as indemnity for the death of

the victim;

3) Fifty-Seven Thousand One Hundred Twenty-Two Pesos and Thirty

Centavos (₱57,122.30) as actual damages; and

4) The cost of suit.

II. Criminal Case No. 4481-R for Kidnapping/Serious Illegal Detention:

A) Accused Nicetas "Cita" Tañedo is hereby acquitted of the crime charged

for insufficiency of evidence;

B) Accused Fernando Calaguas Fernandez (alyas Lando Calaguas) and

Alberto Anticamara (alyas Al Camara) are hereby found guilty beyond
reasonable doubt, as principal, of the crime of Kidnapping/Serious Illegal
Detention of the victim AAA as charged, defined and penalized under Article
267 of the Revised Penal Code, as amended by R.A. 7659. Considering that
the victim AAA was raped during her detention, the maximum penalty of
DEATH is hereby imposed upon the two accused, Fernando Calaguas
Fernandez (Lando Calaguas) and Alberto Anticamara (Al Camara). The two
accused are also ordered to pay, jointly and severally, the victim AAA the
amount of:

1) One Hundred Thousand Pesos (₱100,000.00) as moral damages;

2) Fifty Thousand Pesos (₱50,000.00) as exemplary damages; and

3) Cost of suit.

As to the rest of the accused who are still at-large, let this case be set to the
archives until they are apprehended.

SO ORDERED.5

In light of the Court’s ruling in People v. Mateo,6 the records of the cases
were forwarded by the RTC to the CA for its review. The CA rendered a
Decision dated December 15, 2006, affirming the decision of the RTC in
Criminal Case Nos. 4498-R and 4481-R. However, in view of the abolition of
the death penalty pursuant to Republic Act (R.A.) No. 9346, which was
approved on June 24, 2006, the appellants were sentenced to reclusion
perpetua.

On January 9, 2007, Lando, through the Public Attorney's Office (PAO),

appealed the Decision of the CA to this Court. Lando had assigned the
following errors in his appeal initially passed upon by the CA, to wit:

THE TRIAL COURT GRAVELY ERRED IN HOLDING THAT CONSPIRACY

EXISTED BETWEEN AND AMONG THE ALLEGED PERPETRATORS OF
THE CRIME.

II

ASSUMING THAT THE ACCUSED-APPELLANT IS GUILTY, THE LOWER

COURT GRAVELY ERRED IN CONVICTING HIM OF THE CRIME OF
MURDER INSTEAD OF HOMICIDE.

III

THE TRIAL COURT GRAVELY ERRED IN IMPOSING UPON THE

ACCUSED-APPELLANT THE SUPREME PENALTY OF DEATH FOR THE
CRIME OF KIDNAPPING/SERIOUS ILLEGAL DETENTION, AGGRAVATED
BY RAPE, IN SPITE OF THE FACT THAT THE CRIME OF RAPE WAS NOT
DULY PROVEN BEYOND REASONABLE DOUBT.
IV

THE TRIAL COURT GRAVELY ERRED IN GIVING SCANT

CONSIDERATION TO THE EVIDENCE PRESENTED BY THE ACCUSED-
APPELLANT WHICH IS MORE CREDIBLE THAN THAT OF THE
PROSECUTION

THE TRIAL COURT GRAVELY ERRED IN RENDERING A VERDICT OF

CONVICTION DESPITE THE FACT THAT THE GUILT OF THE ACCUSED-
APPELLANT WAS NOT PROVEN BEYOND REASONABLE DOUBT.7

On January 9, 2007, Al, through the PAO, appealed the Decision of the CA to
this Court. Al had assigned the following errors, to wit:

THE TRIAL COURT ERRED IN FINDING THE ACCUSED-APPELLANT

GUILTY OF THE CRIME OF KIDNAPPING/SERIOUS ILLEGAL DETENTION
IN SPITE OF THE FAILURE OF THE PROSECUTION TO PROVE BEYOND
REASONABLE DOUBT THAT HE CONSPIRED WITH HIS CO-ACCUSED
TO COMMIT THE CRIME CHARGED.

II

THE TRIAL COURT GRAVELY ERRED IN IMPOSING UPON THE

ACCUSED THE SUPREME PENALTY OF DEATH FOR THE SPECIAL
COMPLEX CRIME OF KIDNAPPING/SERIOUS ILLEGAL DETENTION
WITH RAPE, IN SPITE OF THE FACT THAT HE HAD NO PARTICIPATION
IN THE COMMISSION OF [TWO] SEXUAL ABUSES AGAINST THE VICTIM.

III

THE TRIAL COURT GRAVELY ERRED IN FINDING THE ACCUSED-

APPELLANT GUILTY OF THE CRIME OF MURDER IN SPITE OF THE
FAILURE OF THE PROSECUTION TO PROVE BEYOND REASONABLE
DOUBT THAT HE CONSPIRED WITH HIS CO-ACCUSED TO COMMIT THE
SAME.8

In capsule, the main issue is whether the appellants are guilty of the crimes
charged.

In Criminal Case No. 4498-R for Murder:

Circumstantial Evidence

The trial court found that although there was no direct eyewitness in the killing
of Sulpacio in the early morning of May 7, 2002 at Sitio Rosalia, Barangay
San Bartolome, Rosales, Pangasinan, the prosecution adduced sufficient
circumstantial evidence to establish with moral certainty the identities and
guilt of the perpetrators of the crime.

Circumstantial evidence consists of proof of collateral facts and

circumstances from which the existence of the main fact may be inferred
according to reason and common experience .9 Circumstantial evidence is
sufficient to sustain conviction if: (a) there is more than one circumstance; (b)
the facts from which the inferences are derived are proven; (c) the
combination of all circumstances is such as to produce a conviction beyond
reasonable doubt.10 A judgment of conviction based on circumstantial
evidence can be sustained when the circumstances proved form an unbroken
chain that results in a fair and reasonable conclusion pointing to the accused,
to the exclusion of all others, as the perpetrator.11

In this case, the circumstantial evidence presented by the prosecution, when

analyzed and taken together, lead to the inescapable conclusion that the
appellants are responsible for the death of Sulpacio. The Court quotes with
approval the lower court's enumeration of those circumstantial evidence:

The testimony of AAA had clearly established the following facts:

1. At about 3:00 in the early morning of May 7, 2002, while she and the victim
Abad Sulpacio were sleeping inside the house of the Estrella family in
Barangay Carmen, Rosales, Pangasinan several persons entered to rob the
place;

2. Inside the house, she saw and recognized the accused Lando Calaguas
and Dick Tañedo, and heard the latter uttering "somebody will die";

3. Bringing her outside the house, Lando pushed her into the Revo where she
saw inside Abad Sulpacio who was blindfolded and with his hands tied;

4. Inside the Revo, she recognized the accused Dick Tañedo, Lando
Calaguas, Marvin Lim, Roberto Tañedo, Alberto Anticamara and Fred;

5. The Revo then proceeded towards the fishpond owned by the Estrellas in
Sitio Rosalia, Brgy. San Bartolome, Rosales, Pangasinan;
6. The last time that she saw Abad Sulpacio was when he was dragged out
from the vehicle by Lando, Fred, Marvin and Al upon reaching Sitio Rosalia.
At that, time Dick Tañedo stayed with her in the vehicle;

7. Thereafter, when Fred returned to the vehicle, she heard him uttered (sic):
"Make a decision now. Abad has already four (4) bullets in his body, and the
one left is for this girl."12

In addition to these circumstances, the trial court further found that AAA
heard Fred utter "Usapan natin pare, kung sino ang masagasaan, sagasaan."
(Our agreement is that whoever comes our way should be eliminated).
Moreover, NBI Agent Gerald V. Geralde testified that on June 23, 2002,
appellant Al admitted his participation as lookout and naming his companions
Dick, Lando, Fred, Marvin and Bet as the ones who took AAA and Sulpacio
from the house of the Estrellas and brought them to the fishpond. Al also
pointed and led the authorities to a shallow grave in Sitio Rosalia, Barangay
San Bartolome, Rosales, Pangasinan, where the remains of Sulpacio were
buried. The autopsy conducted on the body, prepared by the Medico Legal
Officer Dr. Bandonil, shows that several holes were found on various parts of
the body of the victim and Dr. Bandonil concluded that the cause of the
victim's death was the gunshot wounds. The report also indicates that a piece
of cloth was found wrapped around the eye sockets and tied at the back of
the skull, and another cloth was also found tied at the remnants of the left
wrist.

In the case at bar, although no one directly saw the actual killing of Sulpacio,
the prosecution was able to paint a clear picture that the appellants took
Sulpacio away from the house of the Estrellas, tied and blindfolded him, and
brought him to another place where he was repeatedly shot and buried.

Conspiracy

Under Article 8 of the Revised Penal Code, there is conspiracy when two or
more persons come to an agreement concerning a felony and decide to
commit it. It may be inferred from the acts of the accused before, during or
after the commission of the crime which, when taken together, would be
enough to reveal a community of criminal design, as the proof of conspiracy
is frequently made by evidence of a chain of circumstances.13 To be a
conspirator, one need not participate in every detail of the execution; he need
not even take part in every act or need not even know the exact part to be
performed by the others in the execution of the conspiracy. Each conspirator
may be assigned separate and different tasks which may appear unrelated to
one another but, in fact, constitute a whole collective effort to achieve their
common criminal objective. Once conspiracy is shown, the act of one is the
act of all the conspirators. The precise extent or modality of participation of
each of them becomes secondary, since all the conspirators are principals.14

In the present case, prior to the commission of the crime, the group met at the
landing field in Carmen, Pangasinan and discussed their plan to rob the
house of the Estrellas with the agreement that whoever comes their way will
be eliminated.15 Appellant Al served as a lookout by posting himself across
the house of the Estrellas with the task of reporting any movements outside.
Fred then climbed the old unserviceable gate of the Estrella compound and
then opened the small door and the rest of the group entered the house of the
Estrellas through that opening.16 After almost an hour inside the house, they
left on board a vehicle with AAA and Sulpacio. AAA and Sulpacio were
brought to Sitio Rosalia, Brgy. San Bartolome, Rosales, Pangasinan. In that
place, Sulpacio was killed and AAA was brought to another place and
deprived of her liberty. These circumstances establish a community of
criminal design between the malefactors in committing the crime. Clearly, the
group conspired to rob the house of the Estrellas and kill any person who
comes their way. The killing of Sulpacio was part of their conspiracy. Further,
Dick's act of arming himself with a gun constitutes direct evidence of a
deliberate plan to kill should the need arise.

Appellant Al attempts to evade criminal liability by alleging that he was only

forced to participate in the commission of the crime because he and his family
were threatened to be killed. Al's defense fails to impress us. Under Article
1217 of the Revised Penal Code, a person is exempt from criminal liability if
he acts under the compulsion of an irresistible force, or under the impulse of
an uncontrollable fear of equal or greater injury, because such person does
not act with freedom.18 To avail of this exempting circumstance, the evidence
must establish: (1) the existence of an uncontrollable fear; (2) that the fear
must be real and imminent; and (3) the fear of an injury is greater than, or at
least equal to, that committed.19 For such defense to prosper, the duress,
force, fear or intimidation must be present, imminent and impending, and of
such nature as to induce a well-grounded apprehension of death or serious
bodily harm if the act be done. A threat of future injury is not enough.20

There is nothing in the records to substantiate appellant Al's insistence that

he was under duress from his co-accused while participating in the crime that
would suffice to exempt him from incurring criminal liability. The evidence
shows that Al was tasked to act as a lookout and directed to station himself
across the house of the Estrellas. Al was there from 7:30 p.m. to 1:00 a.m.21
of the following day, while the rest of the group was waiting in the landing
field. Thus, while all alone, Al had every opportunity to escape since he was
no longer subjected to a real, imminent or reasonable fear. However, he
opted to stay across the house of the Estrellas for almost six (6) hours,22 and
thereafter returned to the landing field where the group was waiting for his
report. Subsequently, the group proceeded to the Estrellas’ house. When the
group entered the house, Al stayed for almost one (1) hour outside to wait for
his companions. Later, when the group left the house aboard a vehicle, Al
rode with them in going to Sitio Rosalia, Brgy. San Bartolome, Rosales,
Pangasinan, bringing with them Sulpacio and AAA.23 Clearly, appellant Al
had ample opportunity to escape if he wished to, but he never did. Neither did
he request for assistance from the authorities or any person passing by the
house of the Estrellas during the period he was stationed there. Clearly, Al
did not make any effort to perform an overt act to dissociate or detach himself
from the conspiracy to commit the felony and prevent the commission thereof
that would exempt himself from criminal liability.24 Therefore, it is obvious
that he willingly agreed to be a part of the conspiracy.

Alibi and Denial

Appellant Lando denied having committed the crime charged and interposed
alibi as a defense. He claims that at the time of the incident he was in his
house at Tarlac, together with his family. On the other hand, the appellants
were positively identified by AAA, as two (2) of the six (6) malefactors who
forcibly took her and Sulpacio from the Estrella house in the early morning of
May 7, 2002. Both the trial court and the CA found the testimony of AAA
credible. The Court gives great weight to the trial court’s evaluation of the
testimony of a witness because it had the opportunity to observe the facial
expression, gesture, and tone of voice of a witness while testifying; thus,
making it in a better position to determine whether a witness is lying or telling
the truth.251avvphi1

Between the categorical statements of the prosecution witness, on one hand,

and the bare denial of the appellant, on the other, the former must perforce
prevail. An affirmative testimony is far stronger than a negative testimony
especially when it comes from the mouth of a credible witness. Alibi and
denial, if not substantiated by clear and convincing evidence, are negative
and self-serving evidence undeserving of weight in law. They are considered
with suspicion and always received with caution, not only because they are
inherently weak and unreliable but also because they are easily fabricated
and concocted.26 Denial cannot prevail over the positive testimony of
prosecution witnesses who were not shown to have any ill-motive to testify
against the appellants.27

As to the defense of alibi. Aside from the testimony of appellant Lando that he
was in Tarlac at the time of the incident, the defense was unable to show that
it was physically impossible for Lando to be at the scene of the crime. Basic is
the rule that for alibi to prosper, the accused must prove that he was
somewhere else when the crime was committed and that it was physically
impossible for him to have been at the scene of the crime.Physical
impossibility refers to the distance between the place where the appellant
was when the crime transpired and the place where it was committed, as well
as the facility of access between the two places.28 Where there is the least
chance for the accused to be present at the crime scene, the defense of alibi
must fail.29 During the trial of the case, Lando testified that the distance
between his house in Brgy. Maligaya, San Miguel, Tarlac to the town of
Rosales, Pangasinan is only around forty (40) kilometers. Such distance can
be traversed in less than 30 minutes using a private car and when the travel
is continuous.30 Thus, it was not physically impossible for the appellant
Lando to be at the locus criminis at the time of the incident. In addition,
positive identification destroys the defense of alibi and renders it impotent,
especially where such identification is credible and categorical.31

Qualifying and Aggravating Circumstances

In convicting the appellants, the courts a quo appreciated treachery in

qualifying the killing to murder and evident premeditation in imposing the
penalty of death. There is treachery when the offender commits any of the
crimes against persons, employing means, methods or forms in the execution
thereof which tend directly and specially to ensure its execution without risk to
himself arising from the defense that the offended party might make.32 Two
conditions must concur for treachery to exist, namely, (a) the employment of
means of execution gave the person attacked no opportunity to defend
himself or to retaliate; and (b) the means or method of execution was
deliberately and consciously adopted.33

In the case at bar, it was proven that when AAA boarded the vehicle, she saw
Sulpacio tied and blindfolded. Later, when they reached the fishpond,
Sulpacio, still tied and blindfolded, was led out of the vehicle by the group.
When the remains of Sulpacio was thereafter found by the authorities, the
autopsy report indicated that a piece of cloth was found wrapped around the
eye sockets and tied at the back of the skull and another cloth was also found
tied at the left wrist of the victim. There is no question therefore, that the
victim's body, when found, still had his hands tied and blindfolded. This
situation of the victim when found shows without doubt that he was killed
while tied and blindfolded; hence, the qualifying aggravating circumstance of
treachery was present in the commission of the crime. In People v.
Osianas,34 the Court held that:

x x x In the case at bar, the means used by the accused-appellants to insure

the execution of the killing of the victims, so as to afford the victims no
opportunity to defend themselves, was the act of tying the hands of the
victims. Teresita saw the accused-appellants hog-tie the victims and take
them away with them. Later that night, Dionisio Palmero saw the victims, still
hog-tied, walking with the accused-appellants. The following day, the victims
were found dead, still hog-tied. Thus, no matter how the stab and hack
wounds had been inflicted on the victims in the case at bar, we are sure
beyond a reasonable doubt that Jose, Ronilo and Reymundo Cuizon had no
opportunity to defend themselves because the accused-appellants had earlier
tied their hands. The fact that there were twelve persons who took and killed
the Cuizons further assured the attainment of accused-appellants' plans
without risk to themselves.35

The aggravating circumstance of superior strength cannot be separately

appreciated because it is absorbed by treachery.36

The circumstance of evident premeditation requires proof showing: (1) the

time when the accused determined to commit the crime; (2) an act manifestly
indicating that the accused has clung to his determination; and (3) sufficient
lapse of time between such determination and execution to allow him to
reflect upon the consequences of his act.37 The essence of premeditation is
that the execution of the act was preceded by cool thought and reflection
upon the resolution to carry out the criminal intent during a space of time
sufficient to arrive at a calm judgment.38 From the time the group met at the
landing field at around 6:30 p.m. of May 6, 2002, and discussed the possibility
of killing anyone who stands on their way, up to the time they took Sulpacio
away from the Estrellas’ house and eventually killed him thereafter at around
past 3:00 a.m., more than eight hours had elapsed – sufficient for the
appellants to reflect on the consequences of their actions and desist from
carrying out their evil scheme, if they wished to. Instead, appellants evidently
clung to their determination and went ahead with their nefarious plan.

In Criminal Case No. 4481-R for Kidnapping and Serious Illegal Detention.

The Court finds appellant Lando guilty of the special complex crime of
kidnapping and serious illegal detention with rape, defined in and penalized
under Article 267 of the Revised Penal Code. The elements of kidnapping
and serious illegal detention under Article 267 of the Revised Penal Code39
are: (1) the offender is a private individual; (2) he kidnaps or detains another
or in any other manner deprives the latter of his liberty; (3) the act of
detention or kidnapping must be illegal; and (4) in the commission of the
offense, any of the following circumstances is present: (a) the kidnapping or
detention lasts for more than 3 days; or (b) it is committed by simulating
public authority; or (c) any serious physical injuries are inflicted upon the
person kidnapped or detained or threats to kill him are made; or (d) the
person kidnapped or detained is a minor, female, or a public officer.40

The crime of kidnapping was proven beyond reasonable doubt by the

prosecution. Appellants Lando and Al, both private individuals, forcibly took
AAA, a female, away from the house of the Estrellas and held her captive
against her will. Thereafter, appellant Lando brought AAA to his house in San
Miguel Tarlac, whereby she was deprived of her liberty for almost one month.
It is settled that the crime of serious illegal detention consists not only of
placing a person in an enclosure, but also in detaining him or depriving him in
any manner of his liberty.41 For there to be kidnapping, it is enough that the
victim is restrained from going home.42 Its essence is the actual deprivation
of the victim's liberty, coupled with indubitable proof of the intent of the
accused to effect such deprivation.43 Although AAA was not confined in an
enclosure, she was restrained and deprived of her liberty, because every time
appellant Lando and his wife went out of the house, they brought AAA with
them. The foregoing only shows that AAA was constantly guarded by
appellant Lando and his family.

The crime of rape was also established by the prosecution. Appellant Lando
succeeded in having carnal knowledge of AAA through the use of threat and
intimidation. AAA testified that on May 9, 2002, appellant Lando brought her
to a hotel to hide her from Fred and Bert, who intended to kill her. Appellant
Lando told her to follow his orders, otherwise, he will give her to Fred and
Bert. While in the hotel, appellant Lando raped her.44 Clearly, for fear of
being delivered to Fred and Bert and of losing her life, AAA had no choice but
to give in to appellant Lando's lustful assault. In rape cases, the credibility of
the victim's testimony is almost always the single most important factor.
When the victim's testimony is credible, it may be the sole basis for the
accused's conviction.45 This is so because owing to the nature of the
offense, in many cases, the only evidence that can be given regarding the
matter is the testimony of the offended party.46

The last paragraph of Article 267 of the Revised Penal Code provides that if
the victim is killed or dies as a consequence of the detention, or is raped or
subjected to torture or dehumanizing acts, the maximum penalty shall be
imposed. In People v. Larrañaga,47 this provision gives rise to a special
complex crime. Thus, We hold that appellant Lando is guilty beyond
reasonable doubt of the special complex crime of kidnapping and serious
illegal detention with rape in Criminal Case No. 4481-R.

However, the Court does not agree with the CA and trial court's judgment
finding appellant Al liable for Rape in Criminal Case No. 4481-R. In People v.
Suyu,48 We ruled that once conspiracy is established between several
accused in the commission of the crime of robbery, they would all be equally
culpable for the rape committed by anyone of them on the occasion of the
robbery, unless anyone of them proves that he endeavored to prevent the
others from committing rape.49 Also, in People v. Canturia,50 the Court held
that:
x x x For while the evidence does convincingly show a conspiracy among the
accused, it also as convincingly suggests that the agreement was to commit
robbery only; and there is no evidence that the other members of the band of
robbers were aware of Canturia's lustful intent and his consummation thereof
so that they could have attempted to prevent the same. x x x

The foregoing principle is applicable in the present case because the crime of
robbery with rape is a special complex crime defined in and penalized under
Article 294, paragraph 1 of the Revised Penal Code, and the crime of
kidnapping with rape in this case is likewise a special complex crime as held
in the case of People v. Larrañaga.51 There is no evidence to prove that
appellant Al was aware of the subsequent events that transpired after the
killing of Sulpacio and the kidnapping of AAA. Appellant Al could not have
prevented appellant Lando from raping AAA, because at the time of rape, he
was no longer associated with appellant Lando. AAA even testified that only
Fred and appellant Lando brought her to Tarlac,52 and she never saw
appellant Al again after May 7, 2002, the day she was held captive. She only
saw appellant Al once more during the trial of the case.53 Thus, appellant Al
cannot be held liable for the subsequent rape of AAA.

The Penalties

In Criminal Case No. 4498-R, the attendant circumstance of treachery

qualified the killing to murder. The penalty for murder under Article 248 of the
Revised Penal Code is reclusion perpetua to death. Since the aggravating
circumstance of evident premeditation was alleged and proven, the
imposable penalty upon the appellants is death, pursuant to Article 63,
paragraph 1, of the Revised Penal Code.54 In view, however, of the passage
of R.A. No. 9346,55 prohibiting the imposition of the death penalty, the
penalty of death is reduced to reclusion perpetua,56 without eligibility for
parole.57

In Criminal Case No. 4481-R, the penalty for the special complex crime of
kidnapping and serious illegal detention with rape is death. In view of R.A.
No. 9346, the penalty of death is reduced to reclusion perpetua,58 without
eligibility for parole.59 Accordingly, the imposable penalty for appellant Lando
is reclusion perpetua.

As to appellant Al, the prescribed penalty for serious illegal detention under
Article 267 of the Revised Penal Code is reclusion perpetua to death. There
being no aggravating or mitigating circumstance in the commission of the
offense, the proper penalty to be imposed is reclusion perpetua, pursuant to
Article 6360 of the Revised Penal Code.

The Damages
In Criminal Case No. 4498-R, the award of civil indemnity is mandatory and
granted to the heirs of the victim without need of proof other than the
commission of the crime.61 In People v. Quiachon,62 even if the penalty of
death is not to be imposed because of the prohibition in R.A. 9346, the civil
indemnity of ₱75,000.00 is proper, because it is not dependent on the actual
imposition of the death penalty but on the fact that qualifying circumstances
warranting the imposition of the death penalty attended the commission of the
offense. As explained in People v. Salome,63 while R.A. No. 9346 prohibits
the imposition of the death penalty, the fact remains that the penalty provided
for by law for a heinous offense is still death, and the offense is still heinous.
Accordingly, the award of civil indemnity in the amount of ₱75,000.00 is
proper.

Anent moral damages, the same are mandatory in cases of murder, without
need of allegation and proof other than the death of the victim.64 However,
consistent with recent jurisprudence on heinous crimes where the imposable
penalty is death but reduced to reclusion perpetua pursuant to R.A. No. 9346,
the award of moral damages should be increased from ₱50,000.00 to
₱75,000.00.65

The award of exemplary damages is in order, because of the presence of the

aggravating circumstances of treachery and evident premeditation in the
commission of the crime.66 The Court awards the amount of ₱30,000.00, as
exemplary damages, in line with current jurisprudence on the matter.67

Actual damages is also warranted. Modesta Abad, the spouse of victim

Sulpacio, incurred expenses in the amount of ₱57,122.30, which was duly
supported by receipts.68lawphil

In Criminal Case No. 4481-R, AAA is entitled to civil indemnity in line with
prevailing jurisprudence that civil indemnification is mandatory upon the
finding of rape.69 Applying prevailing jurisprudence, AAA is entitled to
₱75,000.00 as civil indemnity.70

In addition, AAA is entitled to moral damages pursuant to Article 2219 of the

Civil Code,71 without the necessity of additional pleadings or proof other than
the fact of rape.72 Moral damages is granted in recognition of the victim's
injury necessarily resulting from the odious crime of rape.73 Such award is
separate and distinct from the civil indemnity.74 However, the amount of
₱100,000.00 awarded as moral damages is reduced to ₱75,000.00, in line
with current jurisprudence.75

The award of exemplary damages to AAA in the amount of ₱50,000 is hereby

reduced to ₱30,000.00 in accordance with recent jurisprudence.76
As to appellant Al. In the absence of conspiracy, the liability of the accused is
individual and not collective.77 Since appellant Al is liable only for the crime
of serious illegal detention, he is jointly and severally liable only to pay the
amount of ₱50,000.00 as civil indemnity. For serious illegal detention, the
award of civil indemnity is in the amount of ₱50,000.00, in line with prevailing
jurisprudence.78

Along that line, appellant Al's liability for moral damages is limited only to the
amount of ₱50,000.00.79 Pursuant to Article 2219 of the Civil Code, moral
damages may be recovered in cases of illegal detention. This is predicated
on AAA's having suffered serious anxiety and fright when she was detained
for almost one (1) month.80

WHEREFORE, the Decision of the Court of Appeals in CA-G.R. CR-H.C. No.

00556 is AFFIRMED with MODIFICATIONS as follows:

(a) In Criminal Case No. 4498-R, appellants Fernando Calaguas Fernandez

alias "Lando" and Alberto Cabillo Anticamara alias "Al" are found GUILTY
beyond reasonable doubt of the crime of Murder and are sentenced to suffer
the penalty of Reclusion Perpetua, without eligibility of parole, and to pay,
jointly and severally, the heirs of Sulpacio Abad the amounts of ₱75,000.00
as civil indemnity, ₱75,000.00 as moral damages, ₱30,000.00 as exemplary
damages, and ₱57,122.30 as actual damages.

(b) In Criminal Case No. 4481-R, appellant Fernando Calaguas Fernandez

alias "Lando" is found GUILTY beyond reasonable doubt of the special
complex crime of kidnapping and serious illegal detention with rape and is
sentenced to suffer the penalty of Reclusion Perpetua, without eligibility of
parole, and to pay the offended party AAA, the amounts of ₱75,000.00 as
civil indemnity, ₱75,000.00 as moral damages and ₱30,000.00 as exemplary
damages. Appellant Alberto Cabillo Anticamara alias "Al" is found GUILTY
beyond reasonable doubt of the crime of kidnapping and serious illegal
detention and is sentenced to suffer the penalty of Reclusion Perpetua. He is
also directed to pay, jointly and severally, with appellant Fernando Calaguas
Fernandez alias "Lando," the victim AAA the amounts of ₱50,000.00 as civil
indemnity and ₱50,000.00 as moral damages.

SO ORDERED.
G.R. No. L-11439 October 28, 1916

THE UNITED STATES, plaintiff-appellee,

vs.
EDUARDO ELICANAL, defendant-appellant.

Francisco Villanueva, Sr., and Francisco Villanueva, Jr., for appellant.

Attorney-General Avanceña for appellee.

MORELAND, J.:

The appellant in this case is one of several persons arrested and convicted of
murder. He was sentenced to death and this case comes to this court not
only en consulta but by appeal also.

The accused was a member of the crew of the lorcha Cataluña cruising in the
waters of the Philippine Islands off Iloilo under the captaincy of Juan Nomo.
The first mate was Guillermo Guiloresa. The accused is about 22 years of
age, without education or instruction and somewhat weak physically. The
lorcha left the mouth of the Iloilo river early in the morning of the 11th of
December, 1914. She had scarcely cleared the river when Guillermo, the
chief mate, suddenly and without having mentioned the subject to the
accused before, said to him that he was going to kill the captain because he
was very angry with him, and asked him to assist him. The accused took this
statement as a joke as, according to him, the chief mate was a great joker;
and particularly as he was smiling at the time he made the statement; and
naturally paid no more attention to it. Neither he nor the other members of the
crew held any resentment against the captain and he had no idea at that time
that he would take part in any acts directed against him.

The following morning while the crew were engaged in their daily occupation,
Guillermo, finding the captain in his cabin, assaulted him, attempting to seize
and hold his hands and, at the same time, calling to the crew to come forward
and help him. The crew, drawn by the cries, hastened to the spot where
Guillermo was engaged in a hand to hand fight with the captain. At the
request of Guillermo the crew, with the exception of the accused, seized the
captain and tied him with the rope. After he had been rendered helpless
Guillermo struck him in the back of the neck with an iron bar an then,
delivering the weapon to the accused, ordered him to come forward and
assist in disposing of the captain. The accused thereupon seized the bar and,
while the captain was still struggling struck him a blow on the head which
caused his death.
The sole defense of the accused is that, in killing the captain, he was acting
under the impulse of an uncontrollable fear of a greater injury induced by the
threat of Guillermo, the chief mate, and that he was so absolutely
overwhelmed thereby that, in striking the blow which killed the captain, he
acted without volition of his own and was reduced to a mere instrument in the
hands of the chief mate.

The learned trial court refused to accept this defense holding that the chief
mate did not exercise such influence over the accused as amounted to an
uncontrollable fear or that deprived him of his volition. We are satisfied from
the evidence that the finding of the trial court was correct. It was held by the
supreme court of Spain in a decision of the 5th of November, 1880, that "a
threat, in order to induce insuperable fear, must promise such grave results,
and such results must be so imminent, that the common run of men would
succumb. The crime threatened must be greater than, or at least equal to,
that which we are compelled to commit." In a decision of the same court of
April 14, 1871, it was said that "inducement must precede the act induced
and must be so influential in producing the criminal act that without it the act
would not have been performed." That is substantially the principle which is at
the bottom of subdivision 9 of article 8 of the Penal Code. That article defines
the different circumstances under which a person will be exempt from criminal
liability. Subdivision 9 thereof covers "any person who acts under the
compulsion of an irresistible force." The foundation of these decisions and the
basis of the defense in this case is subdivision 10, which exempts from
liability "any person who acts under the impulse of an uncontrollable fear of
an equal or greater injury."

As we have already intimated, before a force can be considered to be an

irresistible one, it must produce such an effect upon the individual that, in
spite of all resistance, it reduces him to a mere instrument and, as such,
incapable of committing a crime. It must be such that, in spite of the
resistance of the person on whom it operates, it compels his members to act
and his mind to obey. He must act not only without will but against will. Such
a force can never consist anything which springs primarily from the man
himself; it must be a force which acts upon him from the outside and by
means of a third person. In order that one may take advantage of subdivision
10 of article 8 and allege with success that he acted under the impulse of an
uncontrollable fear of an equal or greater injury, it must appear that the threat
which caused the uncontrollable fear related to a crime of such gravity and so
imminent that it might safely be said that the ordinary run of men would have
been governed by it. And the evil threatened must be greater than, or at least
equal to, that which he is compelled to cause. The legislature by this
enactment did not intend to say that any fear would exempt one from
performing his legal duty. It was intended simply to exempt from criminal
responsibility when the threat promised an evil as grave, at the very least, as
that which the one threatened was asked to produce. Viada in his
commentaries on this subdivision of article 8 of the Penal Code gives this
illustration:

Certain evil-minded persons seize me and threaten me with death If I do not

set fire to a neighbor's house; if I perform the act under such threat, as grave
as it is imminent, I would fall within the exemption from criminal responsibility
provided for in this number; but if the same persons threatened to lay waste
my forest if I do not kill my father my act would not come within the exemption
for the reason that the evil with which I was threatened was much less than
that of killing my father.

The evidence fails to establish that the threat directed to the accused by the
chief mate, if any, was of such a character as to deprive him of all volition and
to make him a mere instrument without will of his own but one moved
exclusively by him who threatened. Nor does the threat appear to have been
such, or to have been made under such circumstances, that the accused
could reasonably have expected that he would suffer material injury if he
refused to comply. In other words, the fear was not insuperable. Indeed, it is
doubtful if any threat at all in the true sense was made; certainly none of such
serious nature as would justify an illegal act on the part of the accused

This discussion disposes of the first error assigned by counsel for the
appellant. The second relates to the finding of the trial court that the crime
committed was murder instead of homicide; and counsel for appellant urge,
under this assignment, that the evidence does not sustain the finding of any
qualifying circumstance which would raise the crime from the grade of
homicide to that of murder. It is quite true, as counsel argue, that qualifying
circumstances must be as clearly proved and established as the crime itself;
and, unless the evidence in this case shows beyond a reasonable doubt that
the crime was committed with one or more of the qualifying circumstances
required by the Penal Code to constitute murder, it must be denominated
homicide and not murder. (U. S. vs. Beecham, 15 Phil. Rep., 272; U. S. vs.
Gavarlan, 18 Phil. Rep., 510; U. S. vs. Aslul, 21 Phil. Rep., 65; U. S. vs.
Ibañez, 19 Phil. Rep., 463; U. S. vs. Macuti, 26 Phil. Rep., 170; U. S. vs.
Amoroso, 5 Phil. Rep., 466; U. S. vs. Cagara, 5 Phil. Rep., 277.)

We agree with counsel that the evidence does not establish the existence of
premeditation as a qualifying circumstance. In the case of United States vs.
Bañagale (24 Phil. Rep., 69), the court said with respect to the facts which
must be proved to establish premeditation:

The record does not show whether Banagale, upon extending the invitation to
Domingo Posada through Mariano Ilao, did so for the purpose of killing the
former, inasmuch as there is no proof that he had resolved upon doing so,
through deliberation, meditation, and reflection, and performed acts revealing
his criminal purpose, some days or even hours prior to carrying out his
criminal determination to kill the unfortunate Posada. Article 10, circumstance
7, of the Penal Code establishes the requisite that the criminal should have
acted, in the perpetration of the crime, with deliberate premeditation or that he
should have prepared for its commission by outward acts such as denote in
the agent a persistent criminal purpose and a meditated resolution to
consummate the deed. (U. S. vs. Nalua and Kadayum, 23 Phil. Rep., 1 ; U. S.
vs. Alvarez, 3 Phil. Rep., 24; U. S. vs. Lasada and Lasada, 21 Phil. Rep.,
287; U. S. vs. Catigbac, 4 Phil. Rep., 259; U. S. vs. Angeles, 6 Phil. Rep.,
480; U. S. vs. Idica, 3 Phil. Rep., 313; U. S. vs. Buncad, 25 Phil. Rep., 530.)

In the case at bar it does not appear that there was ever any consideration of
the question of killing the captain of the launch by the members of the crew,
in which this accused took part. The matter, so far as the evidence goes, was
never mentioned except on the day before the crime was committed and then
in such a way as not to show any fixed purpose or determination even on the
part of the chief mate and much less on that of the accused. The fact that he,
with the rest of the crew, answered the call of the chief mate while he was
engaged in his endeavor to make way with the captain is not sufficient by
itself, or in connection with the conversation of the day before, to establish
that sustained reflection and continued persistence which are the special
features of the qualifying circumstance of premeditation. It does not appear
that the accused had even thought of taking any part in the death of the
captain up to the very moment when the iron bar with which he dealt the fatal
blow was handed him by the chief mate. Under such circumstances it is error
to find the existence of premeditation as a qualifying circumstance (U. S. vs.
Beecham, 15 Phil. Rep., 272.)

We cannot agree with counsel fro the appellant that the qualifying
circumstance of treachery, or alevosia, has not been proved. It appears
undisputed that, at the time the accused struck the deceased with the iron bar
and thereby caused his death, the latter was bound hand and foot and was
helpless and defenseless. While it is quite true that there was no treachery at
the beginning of the struggle terminating in the death of the captain, that is,
the initial attack was open and fair, the struggle being man to man between
the chief mate and the captain, both unarmed, this does not necessarily
dispose of the question of treachery. This court has held repeatedly that,
even though the beginning of an attack resulting in the death of the deceased
is free from treachery of any sort, nevertheless it will be found present if, at
the time the fatal blow is struck, the deceased is helpless and unable to
defend himself. While the writer of this opinion holds the view that, where
there is not treachery in the attack which results in the death of the deceased,
there can be no treachery which will qualify the crime as murder
notwithstanding the fact that, at the time the fatal blow was struck, the
deceased was unarmed and defenseless, but, the court having held so
frequently the contrary, the writer accepts the doctrine so well established.
Counsel for the appellant, however, maintain that the doctrine of the court in
this regard was modified in the case of United States vs. Balagtas and Jaime
(19 Phil. Rep., 164). In that case the deceased was walking with the two
accused in single file in a narrow street, the deceased being between the
other two.

When they were about ninety yards from any house and while in an obscure
place on the railroad track, at about eight o'clock at night, the deceased was
knocked down, and while down was struck two or three blows in the face and
rendered practically unconscious. While in this unconscious condition, but still
groaning, the two defendants, one taking him by the head and the other by
the feet, carried him across the embankment, which was alongside the
railroad track, and threw him into a small pond of water, face downward. The
defendants then returned to their house. The deceased remained in that
position until the following day when his body was found there by the
policemen, Hartpence and Solis, who conducted the body to the morgue
where it was later identified as that of Simeon Flores by Valentin Franco, a
friend and neighbor of the deceased.

The question arose in that case, under the facts just stated, whether the act
of throwing the deceased into the water while he was still alive but in a
perfectly helpless and defenseless condition constituted alevosia, and made
the crime murder instead of homicide. It will be noted that the attack was not
treacherously made, that is, begun with treachery. This the court held; and,
therefore, if that element is to be found at all in the case it must be found from
the fact that the decease was thrown into the water and drowned while he
was unconscious and in a helpless and defenseless condition. Discussing
that question the court said:

But assuming that the deceased would have recovered from the effects of the
four wounds, if he had not been thrown into the water, yet we still think that
the proofs fail to show that there was present treachery, as the knocking
down of the deceased, striking him while on the ground, and throwing him
into the water were all done in so short a time and one movement followed
the other in such rapid succession. constitute one and the same attack. In
order that treachery may be considered as a qualifying circumstance to raise
the classification of the crime, or as an aggravating circumstance to augment
the penalty, it must be shown that the treacherous acts were present at and
preceded the commencement of the attack which caused the injury
complained of. After the commencement of such an attack and before its
termination an accused person may have employed means or methods which
were of a treacherous character, and yet such means or methods would not
constitute the circumstance of alevosia. One continuous attack, such as the
one which resulted in the death of the deceased Flores, cannot be broken up
into two or more parts and made to constitute separate, distinct, and
independent attacks so that treachery may be injected therein and considered
as a qualifying or aggravating circumstance.

While the writer of this opinion is inclined to agree with the contention of
counsel that the doctrine laid down in this case is quite different from, if not
directly opposed to, that already stated as, theretofore, the unform holding of
this court, nevertheless the majority of the court being of the opinion that it
was not the intention of the court in the case just cited to reverse the previous
decisions of this court and to set down a new doctrine, the writer accepts that
view, particularly in the face of the almost unbroken line of decisions on the
subject now to be reffered to. In the case of United States vs. De Leon (1
Phil. Rep., 163), it appeared that the accused entered the house of the
deceased, drew their bolos and compelled him to follow them. On arriving at
a place called Bulutong the deceased was bound and in that condition
murdered. It was held that the fact that the accused was bound at the time he
was killed, although there was no treachery at the beginning of the assault
resulting in his death, the qualifying circumstance was present. The court
said:

From the evidence there appears the qualifying circumstance of treachery. To

show this it is only necessary to mention the fact that the deceased was
bound.

The head note to that case says:

The fact that the deceased was bound while killed constitutes the qualificative
circumstance of alevosia and raises the crime to the degree of murder, . . . .

The same was held in the case of U. S. vs. Ricafor (1 Phil. Rep., 173); U. S.
vs. Santos (1 Phil. Rep., 222); U. S. vs. Abelinde (1 Phil. Rep., 568); U. S. vs.
Hinto Santos (2 Phil. Rep., 453); U. S. vs. Jamino (3 Phil. Rep., 102); U. S.
vs. Abaigar (2 Phil. Rep., 417); U. S. vs. Gloria (3 Phil. Rep., 333); U. S. vs.
Gabriel (4 Phil. Rep., 165); U. S. vs. Doon (4 Phil. Rep., 249) U. S. vs.
Colombro (8 Phil. Rep., 391); U. S. vs. Tupas (9 Phil. Rep., 506); U. S. vs.
Nalua and Kadayum (23 Phil. Rep., 1); U. S. vs. Indanan (24 Phil. Rep., 203);
U. S. vs. Reyes and De la Cruz (11 Phil. Rep., 225)

For these reasons we are of the opinion that the crime was committed with
treachery and that it was properly denominated murder instead of homicide.

The third error assigned charged that the court erred in refusing to apply
article 11 of the Penal Code in favor of the accused. We do not agree with
this contention. The personal qualities and characteristics of the accused are
matters particularly cognizable by the trial court; and the application of this
section is peculiarly within the discretion of that court. 1awph!l.net

There being neither aggravating nor extenuating circumstances, the judgment

appealed from is reversed and the accused is hereby sentenced to cadena
perpetua. No costs in this instance. So ordered.
G.R. No. 149275 September 27, 2004

VICKY C. TY, petitioner,

vs.
PEOPLE OF THE PHILIPPINES, respondent.

DECISION

TINGA, J.:

Petitioner Vicky C. Ty ("Ty") filed the instant Petition for Review under Rule
45, seeking to set aside the Decision1 of the Court of Appeals Eighth Division
in CA-G.R. CR No. 20995, promulgated on 31 July 2001. The Decision
affirmed with modification the judgment of the Regional Trial Court (RTC) of
Manila, Branch 19, dated 21 April 1997, finding her guilty of seven (7) counts
of violation of Batas Pambansa Blg. 222 (B.P. 22), otherwise known as the
Bouncing Checks Law.

This case stemmed from the filing of seven (7) Informations for violation of
B.P. 22 against Ty before the RTC of Manila. The Informations were
docketed as Criminal Cases No. 93-130459 to No. 93-130465. The
accusatory portion of the Information in Criminal Case No. 93-130465 reads
as follows:

That on or about May 30, 1993, in the City of Manila, Philippines, the said
accused did then and there willfully, unlawfully and feloniously make or draw
and issue to Manila Doctors’ Hospital to apply on account or for value to
Editha L. Vecino Check No. Metrobank 487712 dated May 30, 1993 payable
to Manila Doctors Hospital in the amount of ₱30,000.00, said accused well
knowing that at the time of issue she did not have sufficient funds in or credit
with the drawee bank for payment of such check in full upon its presentment,
which check when presented for payment within ninety (90) days from the
date hereof, was subsequently dishonored by the drawee bank for "Account
Closed" and despite receipt of notice of such dishonor, said accused failed to
pay said Manila Doctors Hospital the amount of the check or to make
arrangement for full payment of the same within five (5) banking days after
receiving said notice.

Contrary to law.3

The other Informations are similarly worded except for the number of the
checks and dates of issue. The data are hereunder itemized as follows:

Criminal Case No. Check No. Postdated Amount

93-130459 487710 30 March 1993 ₱30,000.00
93-130460 487711 30 April 1993 ₱30,000.00
93-130461 487709 01 March 1993 ₱30,000.00
93-130462 487707 30 December 1992 ₱30,000.00
93-130463 487706 30 November 1992 ₱30,000.00
93-130464 487708 30 January 1993 ₱30,000.00
93-130465 487712 30 May 1993 ₱30,000.004
The cases were consolidated and jointly tried. At her arraignment, Ty pleaded
not guilty.5

The evidence for the prosecution shows that Ty’s mother Chua Lao So Un
was confined at the Manila Doctors’ Hospital (hospital) from 30 October 1990
until 4 June 1992. Being the patient’s daughter, Ty signed the
"Acknowledgment of Responsibility for Payment" in the Contract of Admission
dated 30 October 1990.6 As of 4 June 1992, the Statement of Account7
shows the total liability of the mother in the amount of ₱657,182.40. Ty’s
sister, Judy Chua, was also confined at the hospital from 13 May 1991 until 2
May 1992, incurring hospital bills in the amount of ₱418,410.55.8 The total
hospital bills of the two patients amounted to ₱1,075,592.95. On 5 June 1992,
Ty executed a promissory note wherein she assumed payment of the
obligation in installments.9 To assure payment of the obligation, she drew
several postdated checks against Metrobank payable to the hospital. The
seven (7) checks, each covering the amount of ₱30,000.00, were all
deposited on their due dates. But they were all dishonored by the drawee
bank and returned unpaid to the hospital due to insufficiency of funds, with
the "Account Closed" advice. Soon thereafter, the complainant hospital sent
demand letters to Ty by registered mail. As the demand letters were not
heeded, complainant filed the seven (7) Informations subject of the instant
case.10

For her defense, Ty claimed that she issued the checks because of "an
uncontrollable fear of a greater injury." She averred that she was forced to
issue the checks to obtain release for her mother whom the hospital
inhumanely and harshly treated and would not discharge unless the hospital
bills are paid. She alleged that her mother was deprived of room facilities,
such as the air-condition unit, refrigerator and television set, and subject to
inconveniences such as the cutting off of the telephone line, late delivery of
her mother’s food and refusal to change the latter’s gown and bedsheets. She
also bewailed the hospital’s suspending medical treatment of her mother. The
"debasing treatment," she pointed out, so affected her mother’s mental,
psychological and physical health that the latter contemplated suicide if she
would not be discharged from the hospital. Fearing the worst for her mother,
and to comply with the demands of the hospital, Ty was compelled to sign a
promissory note, open an account with Metrobank and issue the checks to
effect her mother’s immediate discharge.11
Giving full faith and credence to the evidence offered by the prosecution, the
trial court found that Ty issued the checks subject of the case in payment of
the hospital bills of her mother and rejected the theory of the defense.12
Thus, on 21 April 1997, the trial court rendered a Decision finding Ty guilty of
seven (7) counts of violation of B.P. 22 and sentencing her to a prison term.
The dispositive part of the Decision reads:

CONSEQUENTLY, the accused Vicky C. Ty, for her acts of issuing seven (7)
checks in payment of a valid obligation, which turned unfounded on their
respective dates of maturity, is found guilty of seven (7) counts of violations of
Batas Pambansa Blg. 22, and is hereby sentenced to suffer the penalty of
imprisonment of SIX MONTHS per count or a total of forty-two (42) months.

SO ORDERED.13

Ty interposed an appeal from the Decision of the trial court. Before the Court
of Appeals, Ty reiterated her defense that she issued the checks "under the
impulse of an uncontrollable fear of a greater injury or in avoidance of a
greater evil or injury." She also argued that the trial court erred in finding her
guilty when evidence showed there was absence of valuable consideration
for the issuance of the checks and the payee had knowledge of the
insufficiency of funds in the account. She protested that the trial court should
not have applied the law mechanically, without due regard to the principles of
justice and equity.14

In its Decision dated 31 July 2001, the appellate court affirmed the judgment
of the trial court with modification. It set aside the penalty of imprisonment
and instead sentenced Ty "to pay a fine of sixty thousand pesos (₱60,000.00)
equivalent to double the amount of the check, in each case."15

In its assailed Decision, the Court of Appeals rejected Ty’s defenses of

involuntariness in the issuance of the checks and the hospital’s knowledge of
her checking account’s lack of funds. It held that B.P. 22 makes the mere act
of issuing a worthless check punishable as a special offense, it being a
malum prohibitum. What the law punishes is the issuance of a bouncing
check and not the purpose for which it was issued nor the terms and
conditions relating to its issuance.16

Neither was the Court of Appeals convinced that there was no valuable
consideration for the issuance of the checks as they were issued in payment
of the hospital bills of Ty’s mother.17

In sentencing Ty to pay a fine instead of a prison term, the appellate court

applied the case of Vaca v. Court of Appeals18 wherein this Court declared
that in determining the penalty imposed for violation of B.P. 22, the
philosophy underlying the Indeterminate Sentence Law should be observed,
i.e., redeeming valuable human material and preventing unnecessary
deprivation of personal liberty and economic usefulness, with due regard to
the protection of the social order.19

Petitioner now comes to this Court basically alleging the same issues raised
before the Court of Appeals. More specifically, she ascribed errors to the
appellate court based on the following grounds:

A. THERE IS CLEAR AND CONVINCING EVIDENCE THAT PETITIONER

WAS FORCED TO OR COMPELLED IN THE OPENING OF THE ACCOUNT
AND THE ISSUANCE OF THE SUBJECT CHECKS.

B. THE CHECKS WERE ISSUED UNDER THE IMPULSE OF AN

UNCONTROLLABLE FEAR OF A GREATER INJURY OR IN AVOIDANCE
OF A GREATER EVIL OR INJURY.

C. THE EVIDENCE ON RECORD PATENTLY SHOW[S] ABSENCE OF

VALUABLE CONSIDERATION IN THE ISSUANCE OF THE SUBJECT
CHECKS.

D. IT IS AN UNDISPUTED FACT THAT THE PAYEE OF THE CHECKS

WAS FULLY AWARE OF THE LACK OF FUNDS IN THE ACCOUNT.

E. THE HONORABLE COURT OF APPEALS, AS WELL AS THE

HONORABLE TRIAL COURT [,] SHOULD NOT HAVE APPLIED CRIMINAL
LAW MECHANICALLY, WITHOUT DUE REGARD TO THE PRINCIPLES OF
JUSTICE AND EQUITY.

In its Memorandum,20 the Office of the Solicitor General (OSG), citing

jurisprudence, contends that a check issued as an evidence of debt, though
not intended to be presented for payment, has the same effect as an ordinary
check; hence, it falls within the ambit of B.P. 22. And when a check is
presented for payment, the drawee bank will generally accept the same,
regardless of whether it was issued in payment of an obligation or merely to
guarantee said obligation. What the law punishes is the issuance of a
bouncing check, not the purpose for which it was issued nor the terms and
conditions relating to its issuance. The mere act of issuing a worthless check
is malum prohibitum.21

We find the petition to be without merit and accordingly sustain Ty’s

conviction.

Well-settled is the rule that the factual findings and conclusions of the trial
court and the Court of Appeals are entitled to great weight and respect, and
will not be disturbed on appeal in the absence of any clear showing that the
trial court overlooked certain facts or circumstances which would substantially
affect the disposition of the case.22 Jurisdiction of this Court over cases
elevated from the Court of Appeals is limited to reviewing or revising errors of
law ascribed to the Court of Appeals whose factual findings are conclusive,
and carry even more weight when said court affirms the findings of the trial
court, absent any showing that the findings are totally devoid of support in the
record or that they are so glaringly erroneous as to constitute serious abuse
of discretion.23

In the instant case, the Court discerns no compelling reason to reverse the
factual findings arrived at by the trial court and affirmed by the Court of
Appeals.

Ty does not deny having issued the seven (7) checks subject of this case.
She, however, claims that the issuance of the checks was under the impulse
of an uncontrollable fear of a greater injury or in avoidance of a greater evil or
injury. She would also have the Court believe that there was no valuable
consideration in the issuance of the checks.

However, except for the defense’s claim of uncontrollable fear of a greater

injury or avoidance of a greater evil or injury, all the grounds raised involve
factual issues which are best determined by the trial court. And, as previously
intimated, the trial court had in fact discarded the theory of the defense and
rendered judgment accordingly.

Moreover, these arguments are a mere rehash of arguments unsuccessfully

raised before the trial court and the Court of Appeals. They likewise put to
issue factual questions already passed upon twice below, rather than
questions of law appropriate for review under a Rule 45 petition.

The only question of law raised--whether the defense of uncontrollable fear is

tenable to warrant her exemption from criminal liability--has to be resolved in
the negative. For this exempting circumstance to be invoked successfully, the
following requisites must concur: (1) existence of an uncontrollable fear; (2)
the fear must be real and imminent; and (3) the fear of an injury is greater
than or at least equal to that committed.24

It must appear that the threat that caused the uncontrollable fear is of such
gravity and imminence that the ordinary man would have succumbed to it.25
It should be based on a real, imminent or reasonable fear for one’s life or
limb.26 A mere threat of a future injury is not enough. It should not be
speculative, fanciful, or remote.27 A person invoking uncontrollable fear must
show therefore that the compulsion was such that it reduced him to a mere
instrument acting not only without will but against his will as well.28 It must be
of such character as to leave no opportunity to the accused for escape.29

In this case, far from it, the fear, if any, harbored by Ty was not real and
imminent. Ty claims that she was compelled to issue the checks--a condition
the hospital allegedly demanded of her before her mother could be
discharged--for fear that her mother’s health might deteriorate further due to
the inhumane treatment of the hospital or worse, her mother might commit
suicide. This is speculative fear; it is not the uncontrollable fear contemplated
by law.

To begin with, there was no showing that the mother’s illness was so life-
threatening such that her continued stay in the hospital suffering all its alleged
unethical treatment would induce a well-grounded apprehension of her death.
Secondly, it is not the law’s intent to say that any fear exempts one from
criminal liability much less petitioner’s flimsy fear that her mother might
commit suicide. In other words, the fear she invokes was not impending or
insuperable as to deprive her of all volition and to make her a mere
instrument without will, moved exclusively by the hospital’s threats or
demands.

Ty has also failed to convince the Court that she was left with no choice but to
commit a crime. She did not take advantage of the many opportunities
available to her to avoid committing one. By her very own words, she
admitted that the collateral or security the hospital required prior to the
discharge of her mother may be in the form of postdated checks or jewelry.30
And if indeed she was coerced to open an account with the bank and issue
the checks, she had all the opportunity to leave the scene to avoid
involvement.

Moreover, petitioner had sufficient knowledge that the issuance of checks

without funds may result in a violation of B.P. 22. She even testified that her
counsel advised her not to open a current account nor issue postdated
checks "because the moment I will not have funds it will be a big problem."31
Besides, apart from petitioner’s bare assertion, the record is bereft of any
evidence to corroborate and bolster her claim that she was compelled or
coerced to cooperate with and give in to the hospital’s demands.

Ty likewise suggests in the prefatory statement of her Petition and

Memorandum that the justifying circumstance of state of necessity under par.
4, Art. 11 of the Revised Penal Code may find application in this case.

We do not agree. The law prescribes the presence of three requisites to

exempt the actor from liability under this paragraph: (1) that the evil sought to
be avoided actually exists; (2) that the injury feared be greater than the one
done to avoid it; (3) that there be no other practical and less harmful means of
preventing it.32

In the instant case, the evil sought to be avoided is merely expected or

anticipated. If the evil sought to be avoided is merely expected or anticipated
or may happen in the future, this defense is not applicable.33 Ty could have
taken advantage of an available option to avoid committing a crime. By her
own admission, she had the choice to give jewelry or other forms of security
instead of postdated checks to secure her obligation.

Moreover, for the defense of state of necessity to be availing, the greater

injury feared should not have been brought about by the negligence or
imprudence, more so, the willful inaction of the actor.34 In this case, the
issuance of the bounced checks was brought about by Ty’s own failure to pay
her mother’s hospital bills.

The Court also thinks it rather odd that Ty has chosen the exempting
circumstance of uncontrollable fear and the justifying circumstance of state of
necessity to absolve her of liability. It would not have been half as bizarre had
Ty been able to prove that the issuance of the bounced checks was done
without her full volition. Under the circumstances, however, it is quite clear
that neither uncontrollable fear nor avoidance of a greater evil or injury
prompted the issuance of the bounced checks.

Parenthetically, the findings of fact in the Decision of the trial court in the Civil
Case35 for damages filed by Ty’s mother against the hospital is wholly
irrelevant for purposes of disposing the case at bench. While the findings
therein may establish a claim for damages which, we may add, need only be
supported by a preponderance of evidence, it does not necessarily engender
reasonable doubt as to free Ty from liability.

As to the issue of consideration, it is presumed, upon issuance of the checks,

in the absence of evidence to the contrary, that the same was issued for
valuable consideration.36 Section 2437 of the Negotiable Instruments Law
creates a presumption that every party to an instrument acquired the same
for a consideration38 or for value.39 In alleging otherwise, Ty has the onus to
prove that the checks were issued without consideration. She must present
convincing evidence to overthrow the presumption.

A scrutiny of the records reveals that petitioner failed to discharge her burden
of proof. "Valuable consideration may in general terms, be said to consist
either in some right, interest, profit, or benefit accruing to the party who
makes the contract, or some forbearance, detriment, loss or some
responsibility, to act, or labor, or service given, suffered or undertaken by the
other aide. Simply defined, valuable consideration means an obligation to
give, to do, or not to do in favor of the party who makes the contract, such as
the maker or indorser."40

In this case, Ty’s mother and sister availed of the services and the facilities of
the hospital. For the care given to her kin, Ty had a legitimate obligation to
pay the hospital by virtue of her relationship with them and by force of her
signature on her mother’s Contract of Admission acknowledging responsibility
for payment, and on the promissory note she executed in favor of the
hospital.

Anent Ty’s claim that the obligation to pay the hospital bills was not her
personal obligation because she was not the patient, and therefore there was
no consideration for the checks, the case of Bridges v. Vann, et al.41 tells us
that "it is no defense to an action on a promissory note for the maker to say
that there was no consideration which was beneficial to him personally; it is
sufficient if the consideration was a benefit conferred upon a third person, or
a detriment suffered by the promisee, at the instance of the promissor. It is
enough if the obligee foregoes some right or privilege or suffers some
detriment and the release and extinguishment of the original obligation of
George Vann, Sr., for that of appellants meets the requirement. Appellee
accepted one debtor in place of another and gave up a valid, subsisting
obligation for the note executed by the appellants. This, of itself, is sufficient
consideration for the new notes."

At any rate, the law punishes the mere act of issuing a bouncing check, not
the purpose for which it was issued nor the terms and conditions relating to its
issuance.42 B.P. 22 does not make any distinction as to whether the checks
within its contemplation are issued in payment of an obligation or to merely
guarantee the obligation.43 The thrust of the law is to prohibit the making of
worthless checks and putting them into circulation.44 As this Court held in
Lim v. People of the Philippines,45 "what is primordial is that such issued
checks were worthless and the fact of its worthlessness is known to the
appellant at the time of their issuance, a required element under B.P. Blg.
22."

The law itself creates a prima facie presumption of knowledge of insufficiency

of funds. Section 2 of B.P. 22 provides:

Section 2. Evidence of knowledge of insufficient funds. - The making, drawing

and issuance of a check payment of which is refused by the drawee bank
because of insufficient funds in or credit with such bank, when presented
within ninety (90) days from the date of the check, shall be prima facie
evidence of knowledge of such insufficiency of funds or credit unless such
maker or drawer pays the holder thereof the amount due thereon, or makes
arrangements for payment in full by the drawee of such check within five (5)
banking days after receiving notice that such check has not been paid by the
drawee.

Such knowledge is legally presumed from the dishonor of the checks for
insufficiency of funds.46 If not rebutted, it suffices to sustain a conviction.47

Petitioner likewise opines that the payee was aware of the fact that she did
not have sufficient funds with the drawee bank and such knowledge
necessarily exonerates her liability.

The knowledge of the payee of the insufficiency or lack of funds of the drawer
with the drawee bank is immaterial as deceit is not an essential element of an
offense penalized by B.P. 22. The gravamen of the offense is the issuance of
a bad check, hence, malice and intent in the issuance thereof is
inconsequential.48

In addition, Ty invokes our ruling in Magno v. Court of Appeals49 wherein this

Court inquired into the true nature of transaction between the drawer and the
payee and finally acquitted the accused, to persuade the Court that the
circumstances surrounding her case deserve special attention and do not
warrant a strict and mechanical application of the law.

Petitioner’s reliance on the case is misplaced. The material operative facts

therein obtaining are different from those established in the instant petition. In
the 1992 case, the bounced checks were issued to cover a "warranty deposit"
in a lease contract, where the lessor-supplier was also the financier of the
deposit. It was a modus operandi whereby the supplier was able to sell or
lease the goods while privately financing those in desperate need so they
may be accommodated. The maker of the check thus became an unwilling
victim of a lease agreement under the guise of a lease-purchase agreement.
The maker did not benefit at all from the deposit, since the checks were used
as collateral for an accommodation and not to cover the receipt of an actual
account or credit for value.

In the case at bar, the checks were issued to cover the receipt of an actual
"account or for value." Substantial evidence, as found by the trial court and
Court of Appeals, has established that the checks were issued in payment of
the hospital bills of Ty’s mother.

Finally, we agree with the Court of Appeals in deleting the penalty of

imprisonment, absent any proof that petitioner was not a first-time offender
nor that she acted in bad faith. Administrative Circular 12-2000,50 adopting
the rulings in Vaca v. Court of Appeals51 and Lim v. People,52 authorizes the
non-imposition of the penalty of imprisonment in B.P. 22 cases subject to
certain conditions. However, the Court resolves to modify the penalty in view
of Administrative Circular 13-200153 which clarified Administrative 12-2000. It
is stated therein:

The clear tenor and intention of Administrative Circular No. 12-2000 is not to
remove imprisonment as an alternative penalty, but to lay down a rule of
preference in the application of the penalties provided for in B.P. Blg. 22.

Thus, Administrative Circular 12-2000 establishes a rule of preference in the

application of the penal provisions of B.P. Blg. 22 such that where the
circumstances of both the offense and the offender clearly indicate good faith
or a clear mistake of fact without taint of negligence, the imposition of a fine
alone should be considered as the more appropriate penalty. Needless to
say, the determination of whether circumstances warrant the imposition of a
fine alone rests solely upon the Judge. Should the judge decide that
imprisonment is the more appropriate penalty, Administrative Circular No. 12-
2000 ought not be deemed a hindrance.

It is therefore understood that: (1) Administrative Circular 12-2000 does not

remove imprisonment as an alternative penalty for violations of B.P. 22; (2)
the judges concerned may, in the exercise of sound discretion, and taking
into consideration the peculiar circumstances of each case, determine
whether the imposition of a fine alone would best serve the interests of
justice, or whether forbearing to impose imprisonment would depreciate the
seriousness of the offense, work violence on the social order, or otherwise be
contrary to the imperatives of justice; (3) should only a fine be imposed and
the accused unable to pay the fine, there is no legal obstacle to the
application of the Revised Penal Code provisions on subsidiary
imprisonment.54

WHEREFORE, the instant Petition is DENIED and the assailed Decision of

the Court of Appeals, dated 31 July 2001, finding petitioner Vicky C. Ty
GUILTY of violating Batas Pambansa Bilang 22 is AFFIRMED with
MODIFICATIONS. Petitioner Vicky C. Ty is ORDERED to pay a FINE
equivalent to double the amount of each dishonored check subject of the
seven cases at bar with subsidiary imprisonment in case of insolvency in
accordance with Article 39 of the Revised Penal Code. She is also ordered to
pay private complainant, Manila Doctors’ Hospital, the amount of Two
Hundred Ten Thousand Pesos (₱210,000.00) representing the total amount
of the dishonored checks. Costs against the petitioner.

SO ORDERED.