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Republic of the Philippines SUPREME COURT Manila THIRD DIVISION

G.R. No. 91896 November 21, 1991 AURORA T. AQUINO, petitioner, vs. COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents. Juan A. De Vera for petitioner.

GUTIERREZ, JR., J.:p This is a petition for review seeking the reversal of the November 15, 1989 decision of the Court of Appeals, which affirmed a trial court decision finding the accused-petitioner, Aurora Aquino, guilty of illegal recruitment. The information filed against the accused-petitioner reads: That on or about and during the period comprised between May 23, 1974 to May, 1975, both dates inclusive, in the City of Manila, Philippines, the said accused did then and there wilfully, unlawfully and knowingly, being then a private individual, recruit workers for employment abroad without first obtaining the required license or authority from the Ministry of Labor, in violation of the said Article 25, Presidential Decree 442. (Rollo, pp. 17-18) Upon arraignment, the accused pleaded not guilty. Thereupon the trial ensued. The facts according to the prosecution are as follows: 1. Sometime in January of 1973, Rodrigo Nicolas, a laborer from Sta. Cruz, Manila, met appellant Aurora Aquino when he applied at her Manila Hotel Office in response to a published notice of alleged recruitment of workers for Guam. At such meeting, he applied for the position of carpenter. One week later, he gave appellant Pl,000.00 as part payment of the P1,500.00 required of him (pp. 9-11, TSN, June 20, 1979). A second payment of the P500.00 was made by Nicolas to appellant on September 24, 1974 (pp. 35-36, TSN, ibid.). Of the total Pl,500.00 Nicolas paid, Pl,000.00 was later refunded directly to him by appellant (pp. 12-14, TSN, ibid.) and the balance of P500.00 was included in an alleged "group refund check" for P5,270 which could not be cashed for lack of funds (pp. 34-35, TSN,ibid). 2. On or about March 12, 1973, Braulio Sapitula, a farmer from Agoo, La Union, having learned that Mrs. Aurora T. Aquino, (known hereafter as Appellant) was recruiting applicants for employment in Guam, likewise applied for the position of

carpenter at appellant's Manila Hotel Office and plunked down FIVE HUNDRED (P500.00) PESOS as his initial payment of the recruitment fees. A second payment of ONE THOUSAND (Pl,000.00) PESOS was delivered to the appellant by Sapitula on February 5, 1975 (p. 1, Decision). 3. Sometime in May of 1973, Aurelio Costales, a resident of Sampaloc, Manila, met appellant at the Greenwich Travel Agency, where Costales likewise applied for a job in Guam and made a partial payment of P800.00 for the usual Pl,500.00 recruitment fees appellant charged job applicants (pp. 5-6, TSN, Jan. 4, 1980). A second payment of P550.00 was given by Costales to appellant on September 24, 1974 (pp. 35-36, Ibid). Later on, Costales, disappointed at not being able to go to Guam, asked for a refund of his money. He was paid P700.00 by appellant, and the balance of P650.00 was allegedly part of the alleged "group refund check" for P5,270.00 issued by appellant which was dishonored for lack of funds (pp. 15-17, Ibid.) 4. Sometime in June, 1974, Benito Vertudez, a resident of Gen. Trias, Cavite, applied for a Guam job at appellant's agency. At such time he filled out an application form and paid P70.00 for "mailing expenses" (pp. 39-44, TSN, June 14, 1979). Thereafter, in the course of following up his application to work in Guam, Vertudez paid appellant P500.00 in September, 1974, and another P500.00 in September, 1974 (pp. 51-52, Ibid). Due to appellant's inability to get him a job in Guam, Vertudez asked for the return of his money. He was issued a check for the amount of Pl,070.00 by appellant, but said check like the alleged "group refund check" was dishonored for lack of funds (p. 54, Ibid.) 5. On November 2, 1978, a complaint was filed against appellant for violation of the Provisions of Article 24, of P.D. No. 442, otherwise known as the Labor Code of the Philippines, before the Regional Trial Court of Manila, Branch VIII. (Rollo, pp. 44-48) The accused-appellant's version, on the other hand, shows that: Aurora T. Aquino, 51 years old businesswoman, disclosed that in 1973, she was a licensed contractor authorized to hire laborers as evidenced by a Labor Contractor's License (New) dated 22 May, 1973, Exh. 5, page 257, record; 21-22 tsn, July 24, 1984; said license was issued after payment of P6,000.00 for the year 1973-1974 (Exh. 5-A, page 256, record); in the recruitment of workers, she was appointed by several employers of Guam and London as their representative in the Philippines, like the Special Power of Attorney executed by George J. Viegas, dated November 29, 1973, in the territory of Agana, Guam (Exh. 6, page 258, record) authorizing her to recruit Filipinos for Guam and likewise, for London (Exh. 7, 7-A, page 260, record); she knows Benito Vertudez of General Trias, Cavite being one of the applicants for Guam and also Braulio Sapitula of Sta. Fe, Agoo, La Union include (sic) Alfredo Empredo of Pasay City, Rodrigo Nicolas of Sta. Cruz, Manila (30-31, tsn, ibid.) all of them having applied in 1973 for employment for abroad, hence, she processed their application and submitted thereafter, their application to her employer abroad, George J. Viegas (32 tsn, ibid); they were not able to leave for Guam because her employer had some trouble with his contract with the government of Guam (33 tsn, ibid); she refunded P500.00 to Sapitula (Exh. 1; 34 tsn. ibid); she refunded Alfredo Empredo on Jan. 28, 1974 P300.00 Exh. 8, page 261, record), refunded P500.00 to Benito Vertudes (Exh. 9, page 262, record), of the amount of P2,200.00 in the form of check (Exh. 10, page 265, record), handwritten receipt of P5,270.00 (Exh. 11, page 264, ibid) which was received by Aurelio Costales (41-42, TSN, Ibid);

she refunded them when she said applicants cannot leave for Guam by issuing Exh. 11 for amounts indicated in the receipts (Exhs. 8, 9, 10 (44 TSN, ibid); she does not violated (sic) Art. 25, P.D. 442 for illegal recruitment because she is a duly licensed labor contractor because when she acted on the applications of the complaining witnesses, she acted as representative in the Philippines of her employer George Viegas (45 TSN, Ibid) and the money covered by the personal check (Exh. 11) belongs to the complainants; the receipts which she issued dated October 24, 1973, August 15, 1973, December 15, 1973, August 14, 1974 and June 19, 1974 show that on said dates she was a duly licensed contractor (47-48 TSN, Ibid); on its expiration on 18 May, 1974, she applied for a renewal of her license by writing a letter to the Bureau of Labor addressed to Minister Blas Ople (Exh. 12, dated Feb. 4, 1975; page 265, record; 5 TSN, August 14, 1984); which was a follow up of her renewal letter dated July 4, 1974 and was just waiting for the renewal of her license, so that meanwhile, she was able to talk with Under-Secretary Amado Inciong concerning said renewal's delay at the time, Sec. Ople was in Italy, hence, she was told by said Under-Secretary Inciong to proceed with her operation "until such time as the Secretary will go home." (6-7 TSN, Ibid); when she did not receive any reply to her Feb. 12, 1975 renewal communication she next made another follow-up letter dated March 3, 1975 addressed Minister to Ople (Exh. 13, NOTE: 3 TSN, October 29, 1985 not submitted and offered) and another letter dated April 29, 1975 [Exh. 14; Note: not submitted and offered, 3 TSN, October 29, 1985); she next waited for the renewal, but was not submitted and offered, 3 TSN, October 29, 1985); she next waited for the renewal, but was not able to receive any reply from the Department of Labor, hence, she stopped operations (13-14 TSN,Ibid) in 1976 (p.15 TSN, Ibid); applicants Benito Vertudes, Sapitula, Empredo, Nicolas, were not able to leave for Guam (15-16 TSN, Ibid); (Decision, pp. 4-5, Record, pp. 294-295). (Rollo, pp. 19-22) After trial, the lower court found the accused guilty, the positive portion of its decision reads: WHEREFORE, in view of the foregoing, the Court finds accused Aurora T. Aquino, GUILTY beyond reasonable doubt of Illegal Recruitment in violation of Art. 25, PD 442 and penalized under Art. 39 par. (b), Labor Code, sans mitigating circumstance, and applying the Indeterminate Sentence Law, hereby sentences her to an indeterminate imprisonment of FOUR (4) YEARS up to SEVEN (7) YEARS and fine of P20,000.00, with the accessory penalties of the law; to indemnify the complainants in the total amount of P5,270.00 with the legal rate of interest reckoned from the filing of instant information on Dec. 1, 1978 until fully paid, but without subsidiary imprisonment in case of insolvency; and finally, to pay the cost of the proceeding. Due to the gravity of the sentence, it is further ordered that accused serves her imprisonment at the National Penitentiary at Muntinlupa, Rizal. (Rollo, p. 22) The accused-petitioner appealed the decision of the lower court to the Court of Appeals. After submission of memorandums, the Court of Appeals affirmed the decision of the lower court. The dispositive portion of the decision reads: WHEREFORE, the guilt of appellant of the crime charged having been established beyond reasonable doubt, the appealed decision is hereby AFFIRMED in all aspects. No costs. (Rollo, p. 25)

The petition for review was initially denied by this Court on March 21, 1990. A motion for reconsideration was filed by the petitioner on April 5, 1990. On May 9, 1990, we gave due course to the motion for reconsideration. The petitioner relies on the following reasons for the allowance of her petition: I The Court of Appeals erred in not dismissing the case for want of jurisdiction by the Regional Trial Court of Manila. II The Court of Appeals erred in holding that the accused illegally recruited the complaints after her license expired on May 18, 1974. III Even if the Regional Trial Court of Manila had jurisdiction, the Court of Appeals erred in sustaining the indemnification by the accused petitioner of the sum of P5,270.00 in favor of the complainants. The jurisdiction of a Court is determined by the allegations of the information as to the situs of the crime. If the information alleges that the crime was committed in the place where the court is seated, then the court has jurisdiction, in the first instance, to hear the case. (Colmenares v. Villar, 33 SCRA 186 [1970]; People v. Galano, 75 SCRA 193 [1977]) In this case, the then accused never raised the ground of lack of jurisdiction in the proceedings before the lower court and before the Court of Appeals. Only after she received the decision of the Court of Appeals affirming the decision of the lower court, did the appellant question the jurisdiction of the court a quo. In the interest of sound administration of justice, such practice cannot be tolerated. If we are to sanction this argument, then all the proceedings had before the lower court and the Court of Appeals while valid in all other respects would simply become useless. In the landmark case of Tijam v. Sibonghanoy (23 SCRA 29 [1968]), we held that a party who has affirmed and invoked the jurisdiction of a court to secure an affirmative relief, may not afterwards deny that same jurisdiction to escape a penalty. A party's active participation in the proceedings before the court without jurisdiction will estop the party from assailing such lack of jurisdiction. (Echaus v. Blanco, 179 SCRA 704 [1989]; Crisostomo v. Court of Appeals, 32 SCRA 54 [1970]; Libudan v. Gil, 45 SCRA 17 [1972]; and People v. Casuga y Munar, 53 SCRA 278 [1973]) Anent the second issue, the Court on the basis of the evidence on record finds the accusedpetitioner not guilty of illegal recruitment. Although as a general rule, the findings of fact of the Court of Appeals are conclusive upon the Supreme Court, this is, however, not without exceptions. In certain instances, the Supreme Court may review the findings of fact of the Court of Appeals as when the inference made is manifestly mistaken or when the judgment is based on misapprehension

of facts or when the Court of Appeals manifestly overlooked certain relevant facts not disputed by the parties and which if properly considered, would justify a different conclusion. (Moran v. Court of Appeals, 133 SCRA 88 [1984]; Sacay v. Sandiganbayan, 142 SCRA 593 [1986]; Manlapaz v. Court of Appeals, 147 SCRA 236 [1987]) There are relevant factual circumstances which the Court of Appeals manifestly misconstrued, thus, necessitating the Court to re-examine the facts. The information charges the accused-petitioner with violating Article 25 of the Labor Code which provides: Travel agencies prohibited to recruit. Travel agencies are prohibited from engaging in the business of recruitment and placement of workers for overseas employment whether for profit or not. The Secretary of Labor shall issue rules and regulations establishing the requirements and the procedures for the issuance of a license or authority. Every existing authority or license to hire or recruit workers on the date of effectivity of this Code shall remain valid for the duration indicated therein unless sooner cancelled, revoked, or suspended for cause by the Secretary of Labor. However, said authority or license to hire or recruit may be renewed provided that the holders thereof shall comply with all applicable provisions of this Code and its implementing rules and regulations. While the charge is for a violation of Article 25, the Solicitor General states that it was really Article 24 which was violated (Rollo, pp. 43, 53-54). Article 24 reads: Authority or license to recruit. No individual or entity may engage in the business of a private fee-charging employment agency without first obtaining a license from the Department of Labor. No individual or entity may operate a private non-fee charging employment agency without first obtaining an authority from the Department of Labor. There is no dispute that the accused-petitioner had a valid license before May 18, 1974. She contends that her license was not renewed, not because of any violations, but because of a Ministry of Labor policy phasing out allprivate recruitment agencies. She never received any letter from the Labor Ministry about any illegal activities and never was her office raided. She claims that her activities were above-board and states that the Ministry was merely implementing a policy that no new application for a license to operate shall be entertained upon the effectivity of the Code and that all private employment agencies would be phased out within four years from that date. She argued that the phrase "no new application" should not include renewal of old applications. The information was filed against Ms. Aquino because she "wilfully, unlawfully, and knowingly . . . recruit(ed) workers for employment abroad without first obtaining the required license or authority . . ." The Solicitor General contends that when Ms. Aquino continued to charge and collect fees from her applicants/recruits after May 18, 1974, she engaged in illegal recruitment violative of Article 24 of the Labor Code.

We must emphasize that this case involves a criminal prosecution for a violation of a penal provision. We are not concerned with whether or not the accused-petitioner's license should be renewed nor with the administrative actions taken by the Labor Department against recruitment agencies. By no stretch of the imagination should an acquittal in this case mean that the Court does not support the legitimate activities of the Government against illegal recruiters preying on the gullibility of poor laborers, seamen, domestics, and other workers who see employment abroad as the only way out of their grinding poverty. We simply apply the principles of Criminal Law that an accused is presumed innocent until proven guilty and that the burden of establishing guilt must be satisfactorily met by the prosecution beyond reasonable doubt. Does the receipt of payments, after the expiration of the license, for services rendered before said expiration constitute illegal recruitment? We believe that it does not, at least not for purposes of criminal prosecutions. Recruitment refers to the offering of inducements to qualified personnel to enter a particular job or employment. The advertising, the promise of future employment and other come-ons took place while Ms. Aquino was still licensed. True, the payments for services rendered are necessary consequences of the applications for overseas employment. However, it is asking too much to expect a licensed agency to absolutely at the stroke of midnight stop all transactions on the day its license expires and refuse to accept carry-over payments after the agency is closed. In any business, there has to be a winding-up after it ceases operations. The collection of unpaid accounts should not be the basis of a criminal prosecution. Thus, in the case of the complainant Braulio Sapitula, the recruitment took place at the very latest on February 12, 1973, when Sapitula went to the office of the petitioner at the annex of Manila Hotel, and correspondingly, filed his application papers for overseas employment (Rollo, p. 28); as for Rodrigo Nicolas when he met the petitioner in January, 1973 (Rollo, p. 30); and Aurelio Costales, when sometime in May, 1973, he submitted his application papers for overseas employment at the office of the accused at the Manila Hotel annex. (Rollo, pp. 30-31) Other than receipt of carry-over payments, there is no evidence of recruiting activities after May 18, 1974. It has been suggested that once a license expires, the recruiter should turn over all continuing activities such as collections of unpaid accounts to another licensed agency in order to give teeth to the campaign against illegal recruiters. There is nothing to prevent the law from being amended to avoid the problem exemplified by this case but certainly no speculations on what could have been done should enter into the resolution of a criminal case. The Government did not question the legality of the payment as such. The prosecution is based on the date of the prohibited activity, not on the payments being illegal exactions even if effected during the correct period. The payments are necessary in order to defray the expenses entailed in any overseas contract of employment. They are intended for administrative and business expenses and for the travelling expenses of the applicants once cleared for overseas travel. In the case of one complainant, Benito Vertudes, the prosecution alleges that he filed his application paper sometime in June of 1974, a month after the expiration of Aquino's license to operate (Rollo, p. 47). On the other hand, the petitioner in her testimony before the lower court stated that Vertudes applied in 1973, within the period when her license to operate the employment agency had not yet expired. (Rollo, p. 20) This accusation against the petitioner constitutes a negative allegation where the negative fact of recruiting without a license forms an essential element of the crime charged. Hence, it was incumbent upon the prosecution to satisfactorily establish the date when Vertudes was recruited.

It has not been clearly established that the petitioner is guilty of recruiting Benito Vertudes after May 18, 1974. The prosecution relied on the sole testimony of Benito Vertudes, that he applied sometime in June of 1974. His testimony was flatly denied by the petitioner who gave an earlier date. No other evidence was proferred by the prosecution particularly in relation to the recruitment of Benito Vertudes. (Rollo, pp. 29-30) In the absence of any corroborating evidence to support such particular fact, and considering that the prosecution's main theory is that collection of carry-over payments constitutes recruitment, the Court is constrained to resolve the issue in favor of the accused consistent with the rule on the construction of penal laws, that they are strictly construed against the government and liberally in favor of the accused. (See People v. Yu Hai, 99 Phil. 725 [1956]) Article 25 (it should be Article 24) of the Labor Code, the violation of which was imputed to Aurora Aquino, states only that no person may operate a private fee charging employment agency without the necessary license. Inferentially, it is the operation of this kind of employment agency without the proper license which constitutes the act of illegal recruitment. If the factual circumstances are otherwise, as when the accused does not operate any employment agency, then all activities including the acceptance of the application papers and the collection of payment would constitute acts of recruitment within the meaning of the law. Or if the accused continued to operate as before, even after the license is denied renewal, this would be punishable under the law. The facts of this case, however, conspicuously show that the recruitment activities, namely the continued operation of the Greenwich Travel Agency, the advertisements that the agency was recruiting workers for overseas employment and the active solicitation of workers ceased upon the non-renewal of Aurora Aquino's license to operate the said agency. After May 18, 1974, Aquino closed her office at the Manila Hotel Annex and settled in her residential home in Quezon City from where she conducted the winding-up of her business. Two of the complainants, namely, Aurelio Costales and Rodrigo Nicolas filed affidavits of desistance although these affidavits were not filed in the case at bar but in another criminal case of estafa filed against the petitioner. This notwithstanding, the causes of action of the two criminal cases arose from the same factual circumstances. The importance of these affidavits cannot just be ignored. As a rule, affidavits of desistance should not be given too much credit. Under the circumstances of this case, however, they serve to create serious doubts as to the criminal liability of the petitioner. At the very least, they call for a second look at the records of the case and the basis for the judgment of conviction. (People v. Lim, 190 SCRA 706 [1990]) Anent the final argument questioning the order of the trial court, affirmed by the Court of Appeals, which required Aquino to pay the complainants the sum of P5,270.00 as reimbursements of the payments made by the latter, the court after considering the records of the case resolved to affirm the order of the Court of Appeals with modification.

The petitioner professes that she has reimbursed the complainants by issuing them a group-check in the amount of P5,270.00. She states that if indeed the check bounced as alleged by the complainants, then why did not the complainants present the dishonored check or the bank's return slip to show that the checks were not encashed. (Rollo, p.12) If that be the case, then the resultant query would be: why did the petitioner not produce the check issued by her to the complainants to show that it had been honored by the drawee bank and correspondingly deducted from her account, evidencing therefore, the fact of payment? The petitioner issued a check to reimburse the complainants for the sums of money paid the latter by virtue of the "failed" overseas contract. The controversy arose when the check was dishonored by the drawee bank due to lack of funds. The petitioner, on the other hand, claims full satisfaction of the sum owed by her since she already issued a check in favor of the complainants. The argument of the petitioner is unconvincing. It has been the consistent ruling of this Court that the issuance of a check has been encashed. Although a check, as a negotiable instrument, is regarded as a substitute for money, it is not money. Hence, its mere delivery does not, by itself, operate as payment. (PAL v. Court of Appeals, 181 SCRA 557 [1990]) To this end, it was de rigueur for the petitioner to have presented the check she issued to the complainants which had been honored by the drawee bank in order to show that the amount covered by the check has been received evidencing, therefore, full satisfaction of the sums of money owed to the complainants. The records reveal nothing of this sort. Nowhere during the proceedings before the lower court did the accused present any evidence showing that the checks was actually encashed. In the absence of any evidence regarding this matter, the conclusion of the Court of Appeals must be sustained. In view, however, of the affidavits of desistance executed by Aurelio Costales and Rodrigo Nicolas where both admitted that the petitioner had satisfied her monetary obligations to them (Rollo, pp. 107-108), in the amount of P650.00 and P500.00 respectively, these sums should be deducted from the total amount of P5,270.00. (Rollo, p. 18) WHEREFORE, the judgment of conviction is hereby REVERSED and accused-petitioner Aurora Aquino is ACQUITTED of the crime of illegal recruitment. The accused-petitioner is, however, ordered to pay to the remaining complainants the sum of FOUR THOUSAND ONE HUNDRED SEVENTY PESOS (P4,170.00), with legal rate of interest reckoned from the filing of the information on December 1, 1978 until fully paid. SO ORDERED. Fernan, C.J., Bidin, Davide, Jr. and Romero, JJ., concur.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. Nos. L-12011-14 September 30, 1958

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellant, vs. ALFONSO GATCHALIAN, defendant-appellee. Office of the Solicitor General Ambrosio Padilla and Solicitor Troadio T. Quiazon, Jr. for appellant. Ishmael Rodriguez for appellee. BAUTISTA ANGELO, J.: Alfonso Gatchalian was charged before the Court of First Instance of Zamboanga with a violation of Section 3 of Republic Act No. 602 in four separate informations (Criminal Cases Nos. 2206, 2207, 2208 and 2209) committed as follows: That on or about August 4, 1951, up to and including December 31, 1953 and within the jurisdiction of this Court, viz, in the City of Zamboanga, Philippines, the above named accused, owner or manager of the New Life Drug Store, a business establishment in the City of Zamboanga and having under his employ one Expedito Fernandez as salesman in the said establishment, did then and there willfully, and feloniously, pay and cause to be paid to said Expedito Fernandez, a monthly salary of P60 to P90 for the period above-mentioned which is less than that provided for by law, thereby leaving a difference of an unpaid salary to the latter in the total amount of P1,016.64 for the period above-mentioned. When arraigned on June 19, 1956, he pleaded not guilty to the charge. On August 29, 1956, his counsel, in his behalf, filed a written motion to dismiss based on two grounds which in substance merely consist in that the violation charged does not constitute a criminal offense but carries only a civil liability, and even if it does, the section of the law alleged to have been violated does not carry any penalty penalizing it. On September 25, 1956, the City Attorney of Zamboanga filed his answer to the motion to dismiss contending that the law which was violated by the accused carries with it both civil and criminal liability, the latter being covered by Section 15 which provides for the penalty for all willful violations of any of the provisions of the Minimum Wage Law. On December 3, 1956, the Court, after hearing the arguments of both parties, as well as some members of the local bar, issued an order dismissing the informations with costs de oficio and cancelling the bail bond filed by the accused. The court in the same order directed the Regional Representative of the Department of Labor to immediately institute a civil action against the erring employer for the collection of the alleged underpayment of wages due the employees. A motion for reconsideration having been denied, the Government took the present appeal. The pertinent portion of Section 3 of Republic Act 602 under which appellee was prosecuted, reads as follows:. SEC. 3. Minimum wage. (a) Every employer shall pay to each of his employees who is employed by an enterprise other than in agriculture wages at the rate of not less than

(1) Four pesos a day on the effective date of this Act and thereafter for employees of an establishment located in Manila or its environs; (2) Three pesos a day on the effective date of this Act and for one year after the effective date, and thereafter P4 a day, for employees of establishment located outside of Manila or its environs: Provided, That this Act shall not apply to any retail or service enterprise that regularly employs not more than five employees. Section 15 of the same law, which treats of "penalties and recovery of wages due", likewise provides: SEC. 15. Penalties and recovery of wage due under this Act. (a) Any person who wilfully violates any of the provisions of this Act shall upon conviction thereof be subject to a fine of not more than two thousand pesos, or, upon second conviction, to imprisonment of not more than one year, or to both fine and imprisonment, in the discretion of the court. (b) If any violation of this Act is committed by a corporation, trust, partnership or association, the manager or in his default, the person acting as such when the violation took place, shall be responsible. In the case of a government corporation, the managing head shall be made responsible, except when shown that the violation was due to an act or commission of some other person, over whom he has no control, in which case the latter shall be held responsible. (c) The Secretary is authorized to supervise the payment of the unpaid minimum wages or the wages found owing to any employee under this Act. (d) The Secretary may bring an action in any competent court to recover the wages owing to an employee under this Act, with legal interest. Any sum thus recovered by the Secretary on behalf of an employee pursuant to this subsection shall be held in a special deposit account and shall be paid, on order of the Secretary, directly to the employee or employees affected. Any such sums not paid to an employee because he cannot be located within a period of three years shall be covered into the Treasury as miscellaneous receipts. (e) Any employer who underpays an employee in violation of this Act shall be liable to the employee affected in the amount of the unpaid wages with legal interest. Action to recover such liability may be maintained in any competent court by anyone or more employees on behalf of himself or themselves. The court in such action shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney's fee which shall not exceed ten per cent of the amount awarded to the plaintiffs, unless the amount awarded is less than one hundred pesos, in which event the fee may be ten pesos, but not in excess of that amount. Payment of the amount found due to the plaintiffs shall be made directly to the plaintiffs, in the presence of a representative of the Secretary or the Court. In the event payment is witnessed by the court or its representative, the Secretary shall be notified within ten days of payment that the payment has been made. (f) No employer, attorney, or any other person, other than the employee to whom underpayment are found due, shall receive any part of the underpayment due the employee; and no attorney shall receive any fee in excess of the maximum specified herein.

(g) In determining when an action is commenced under this section for the purpose of the statute of limitation, it shall be considered to be commenced in the case of any individual claimant on the date when the complaint is filed if he is specifically named as a party plaintiff in the complaint, or if his name did not so appear, on the subsequent date on which his name is added as a party plaintiff in such action. It is clear from the above-quoted provisions that while Section 3 explicitly requires every owner of an establishment located outside of Manila or its environs to pay each of its employees P3.00 a day on the effective date of the Act, and one year thereafter P4.00 a day, Section 15 imposes both a criminal penalty for a willful violation of any of the above provisions and a civil liability for any underpayment of wages due an employee. The intention of the law is clear: to slap not only a criminal liability upon an erring employer for any willful violation of the acts sought to be enjoined but to attach concurrently a civil liability for any underpayment he may commit as a result thereof. The law speaks of a willful violation of "any of the provisions of this Act", which is all-embracing, and the same must include what is enjoined in Section 3 thereof which embodies the very fundamental purpose for which the law has been adopted. A study of the origin of our Minimum Wage Law (Republic Act 602) may be of help in arriving at an enlightened and proper interpretation of the provisions under consideration. Our research shows that this Act was patterned after the U. S. Fair Labor Standards Act of 1938, as amended, and so a comparative study of the pertinent provisions of both would be enlightening. The pertinent provisions of the U. S. Fair Labor Stardards Act of 1938, as amended, follow: MINIMUM WAGES. SEC. 6. (a) Every employer shall pay to each of his employees who is engaged in commerce or in the production of goods for commerce wages at the following rates (1) not less than 75 cents an hour; xxx PROHIBITED ACTS SEC. 15. (a) After the expiration of one hundred and twenty days from the date of enactment of this Act, it shall be unlawful for any person (1) to transport, offer for transportation, ship, deliver, or sell in commerce, or to ship, deliver, or sell with knowledge that shipment or delivery or sale thereof in commerce is intended, any goods in the production of which any employee was employed in violation of section 6 or section 7, or in violation of any regulation or order of the Administrator issued under section 14; . . . . (2) to violate any of the provisions of section 6 or section 7, or any of the provisions of any regulation or order of the Administrator issued under section 14; (3) to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or cause to be instituted any proceeding under or related to this Act, or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee; xxx xxx

(4) to violate any of the provisions of section 11 (c) or any regulation or order made or continued in effect under the provisions of section 11 (d), or to make any statement, report, or record filed or kept pursuant to the provisions of such section or of any regulation or order thereunder, knowing such statement, report, or record to be false in a material respect. xxx PENALTIES SEC. 16. (a) Any person who willfully violates any of the provisions of section 15 shall upon conviction thereof be subject to a line of not more than P10,000, or to imprisonment for not more than six months, or both. No person shall be imprisoned under this subsection except for an offense committed after the conviction of such person for a prior offense under this subsection. (b) Any employer who violates the provisions of section 6 or 7 of this Act shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in additional equal amount as liquidated damages. Action to recover such liability may be maintained in any court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought. The court in such action shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney's fee to be paid by the defendant costs of the action. The pertinent provisions of Republic Act 602 read: SEC. 3. Minimum wage. (a) Every employer shall pay to each of his employees who is employed by an enterprise other than in agriculture wages at the rate of not less than xxx xxx xxx xxx xxx

(2) Three pesos a day on the effective date of this Act and for one year after the effective date, and thereafter P4 a day, for employees of establishments located outside of Manila or its environs: Provided, That this Act shall not apply to any retail or service enterprise that regularly employs not more than five employees. SEC. 15. Penalties and recovery of wage due under this Act. (a) Any person who willfully violates any of the provisions of this Act shall upon conviction thereof be subject to a fine of not more than two thousand pesos, or, upon second conviction, to imprisonment of not more than one year, or to both fine and imprisonment, in the discretion of the court. xxx xxx xxx

(e) Any employer who underpays an employee in violation of this Act shall be liable to the employee affected in the amount of the unpaid wages with legal interest. Action to recover such liability may be maintained in any competent court by anyone or employees on behalf of himself or themselves. The court in such action shall, in addition to any judgment awarded

to the plaintiff or plaintiffs, allow a reasonable attorney's fee which shall not exceed ten per cent of the amount awarded to the plaintiffs, unless the amount awarded is less than one hundred pesos, in which event the fee may be ten pesos, but not in excess of that amount. Payment of the amount found due to the plaintiffs shall be made directly to the plaintiffs, in the presence of a representative of the Secretary or of the Court. In the event payment is witnessed by the court or its representative, the Secretary shall be notified within ten days of payment that the payment has been made. An examination of the above-quoted provisions of the two Acts will show that while in substance they are similar, they however contain some differences in their phraseology and in the apportionment of their provisions. Thus, while Section 15 (a), paragraph 2, of the Fair Labor Standards Act makes it unlawful for an employer not to pay the minimum wage prescribed therein, our Minimum Wage Law does not contain a similar provision. Again, the Fair Labor Standards Act enumerates in one single section all those acts which are declared unlawful and are not spread out in different sections as done in our law. Thus, the acts that are declared unlawful by the former law as enumerated in Section 15(a) are: (1) to transport or deliver any goods in the production of which any employee was employed in violation of Section 6 or Section 7, or in violation of any regulation or order of the Administrator; (2) failure to pay the minimum wage; (3) to discharge or in any other manner discriminate against an employee who has filed a complaint against the employer in relation to the Act; and (4) failure to keep the record or report required by law or to make a false record or report. On the other hand, our law declares unlawful the following acts, to wit: (1) to pay wages in the form of promissory notes, vouchers, coupons, tokens or any other form alleged to represent legal tender [Section 10 (a) (1)]; (2) to make any deduction or withhold any amount from the wages of an employee, or induce any employee to give part of his wages by force or intimidation [ Section 10 (g)]; (3) to commit any act of discrimination against an employee because of certain complaint he has filed or caused to be filed against the employer (Section 13); and (4) to make any false statement, report or record to subvert the purpose of the Act (Section 14), which acts are contained in separate sections mentioned therein. The failure to pay the prescribed minimum wage is not declared unlawful in our law. It should also be noted that while Section 16 of the Fair Labor Standards Act which provides for the penalties to be imposed for any willful violation of the provisions of the Act specifically states that those penalties refer to acts declared unlawful under Section 15 of the same Act, our law does not contain such specification. It merely provides in Section 15 (a) that "Any person who willfully violates any of the provisions of this Act shall upon conviction" be subject to the penalty therein prescribed. This distinction is very revealing. It clearly indicates that while the Fair Labor Standards Act intends to subject to criminal action only acts that are declared unlawful, our law by legislative fiat intends to punish not only those expressly declared unlawful but even those not so declared but are clearly enjoined to be observed to carry out the fundamental purpose of the law. One such provision is undoubtedly that which refers to the payment of the minimum wage embodied in Section 3. This is the only rational interpretation that can be drawn from the attitude of our Congress in framing our law in a manner different from that appearing in the mother law. Indeed, the main objective of the law is to provide for a rock-bottom wage to be observed and by an employers of an agricultural and industrial establishment. This objective would be defeated were we to adopt a restrictive interpretation of the above penal clause, for an employer who knows that he cannot be amenable to a criminal action would be prone to subvert the law because if he is detected it would be easy for him to pay the underpayment and the corresponding interest as would be the case were he to assume merely a civil liability. This would be a mockery and a derision of the law not contemplated by our lawmaker which would certainly render it nugatory and abortive. We are not prepared to adopt an interpretation which would give such adverse result to a legislation conceived in the lofty purpose of protecting labor and giving it a living wage. If the law is to survive, it must be real, militant and effective.

The establishment of the maximum wage benefits directly the lowpaid employees, who now receiveinadequate wages on which to support themselves and the ir families. It benefits all wage earners indirectlyby setting a floor below which their remunerat ion cannot fail. It raises the standards of competition amongemployers, since it would protect the fairminded employer who voluntarily pays a wage that supports thewage earner from the compe tition of the employer, who operates at lower cost by reasons of paying hisworkers a wage b elow subsistence. If, in fact, the employer cannot pay a subsistence wage, then he shouldnot continue his operation unless he improves his methods and equipment so as to make the pa yment ofthe minimum wage feasible for him; otherwise the employer is wasting the toil of the worker and the materialresources used in the employment. Second methods of operation, pr ogressive and fairmindedmanagement, and an adequate minimum wage go hand in hand. (Explanatory Note t o H.B. No. 1476). Counsel for appellee however entertains a different interpretation. He contends that if Section 15(a) should be interpreted in a manner that would embrace a willful violation of any of the provisions of the law we would have a situation where even the officials entrusted with its enforcement may be held criminally liable which is not contemplated in the law. Thus, he contends, the Secretary of Labor may be criminally prosecuted for willfully not using all available devices for investigation [Section 4 (c)], for not presenting to the Wage Board all the evidence in his possession relating to the wages in the industries for which the Wage Board is appointed and other information relevant to the establishment of the minimum wage [Section 5 (p)], and for not doing all other acts which the law requires him to do under Section 6. This, he emphasizes, is absurd and should not be entertained. To begin with, the Minimum Wage Law is a social legislation which has been adopted for the benefit of labor and as such it contains provisions that are enjoined to be observed by the employer. These provisions are substantive in nature and had been adopted for common observance by the persons affected. They cannot be eluded nor subverted lest the erring employer runs into the sanction of the law. On the other hand, the provisions adverted to by counsel are merely administrative in character which had been adopted to set the machinery by which the law is to be enforced. They are provisions established for observance by the officials entrusted with its enforcement. Failure to comply with them would therefore subject them merely to administrative sanction. They do not come under the penal clause embodied in Section 15(a). This is clearly inferred from Section 18(c), of Republic Act No. 602, which provides: "Any official of the Government to whom responsibility in administration and enforcement has been delegated under this Act shall be removable on the sustaining of charges of malfeasance or non-feasance in office." This specific provision should be interpreted as qualifying the penal clause provided for in Section 15(a). It is true that Section 3 under which appellee was charged does not state that it shall be unlawfull for an employer to pay his employees wages below the minimum wage but merely requires that the employer shall pay wages not below the minimum wage. But failure of such declaration does not make the non-observance of the provisions less unlawful than otherwise, for such provision embodies precisely the raison d'etre of the law itself. Indeed, Section 3 is the very provision on which all the other provisions of the law are built. Thus, the prohibition against discriminating against any employee because he has filed a complaint or caused to be instituted one against the employer is just a means to insure the effective enforcement of that provision (Section 13); and so the prohibition against the making of a false statement, report or record required to be filed or kept by the law (Section 13); the prohibition against the payment of wages in the form of promissory notes, vouchers, coupons, tokens, or any other form to represent legal tender (Section 10, par. a, subparagraph 1); and the prohibition against making deductions or withholding any amount from the wages of an employee (Section 10, par. g). These are acts which were declared unlawful because they may be resorted to by unscrupulous employers with the evident purpose of subverting or

defeating the payment of the minimum wage. If these supplementary provisions are mere safeguards established by the lawmaker to close every avenue to trickery or subversion on the part of the employer, they cannot be more important and imperative as the central provision fixing the minimum wage without which the law will have no reason to exist. We cannot therefore entertain the claim that because said provision was not declared unlawful it cannot be subject to the penal sanction embodied in Section 15. It is likewise true that the informations under which the accused was charged only mention Section 3 of the law as the one violated and this section does not contain a penal clause, but this does not make the informations defective. There is no law which requires that in order that an accused may be convicted the specific provision which penalizes that act charged be mentioned in the information. The Rules of Court do not require such designation. In fact, the rule provides that an information, to be sufficient, should state only the name of the defendant, the designation of the offense by the statute, the acts or omissions complained of as constituting the offense, the name of the offended party, the approximate time of the commission of the offense, and the place wherein the offense was committed (Rule 106, Section 5). The rule does not require that it should mention the particular penal provision penalizing the offense. The final claim of appellee is that inasmuch as the provisions of the law under which he was prosecuted are ambiguous and there is doubt as to their interpretation, that doubt should be resolved in his favor because a penal statute should be strictly construed against the State. This contention must also fail if we are to be consistent with our interpretation of the provisions of Section 15 (a) of the law. We have stated that that section is clear and unambiguous and covers the provisions embodied in Section 3 of the law, and if such is the case then there is no room for the application of the principle invoked by appellee. We are therefore persuaded to conclude that the court a quo erred in dismissing the informations filed against the appellee and, consequently, its order of December 3, 1956, subject of this appeal should be set aside. Wherefore, the order appealed from is hereby set aside. It is ordered that these cases be remanded to the court a quo for further proceedings, with costs against appellee.. Paras, C. J., Padilla, and Endencia, JJ., concur.

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION

G.R. NO. 82263 June 26,1992 THE PEOPLE OF THE PHILIPPINES, plaintiff, vs. ERNESTO YABUT y TORRES, defendant.

PADILLA, J.: This is an appeal from the decision of the Regional Trial Court of Valenzuela, Metro Manila (Br. 172) * finding the accused guilty of violating Republic Act No. 6425, as amended, otherwise known as the Dangerous Drugs Act of 1972, and sentencing him to life imprisonment and payment of the prescribed fine of Twenty Thousand Pesos (P20,000.00). The information filed by Assistant Provincial Fiscal Benjamin Aquino, Jr., against the accused reads as follows: That on or about the 8th day of April 1986, in the municipality of Valenzuela, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the abovenamed accused, together with Luis Alejandrino who is still at large, without authority of law or any legal justification, and while in possession and control of one (1) tea bag of marijuana dried leaves, did then and there wilfully, unlawfully and feloniously sell, dispose of and deliver the said marijuana dried leaves to another person knowing fully well the same to constitute a prohibited and dangerous drug. Upon arraignment, the accused entered a plea of not guilty. Trial thereupon commenced. To prove the merits of its case, the prosecution presented the testimonial evidence of the arresting officer, S/Sgt. Pablito Reyno of the Philippine Constabulary and Daisy Babor, Forensic Chemist of the PC Crime Laboratory based in Camp Olivas, Pampanga. The prosecution alleges that on 8 April 1985 at about 5:00 p.m., a civilian informant went to Camp Olivas, Pampanga to report on the alleged drug trafficking activities of the accused-appellant Yabut and his co-accused Alejandrino at Pulo, Palayan, Valenzuela, Metro Manila. Upon evaluating the information, recounts the prosecution witness Reyno, he formed a team composed of S/Sgt. Ruben Bazar, Sgt. Venusto Homisulamin, two (2) FMIB agents, and himself, and together with the informant, they proceeded to the reported site of the illegal activity to conduct a buy-bust operation designed to entrap the accused-appellant and Alejandrino. Bazar was designated to act as poseurbuyer. Upon arrival at Pulo, Bazar and the civilian informant were allegedly met by the appellant and brought to the house of Luis "Gigi" Alejandrino who met them there. From a distance of twenty (20) meters, witness Reyno, who had positioned himself at the corner of the entrance of the alley leading

to Alejandrino's house, saw Bazar talk to Alejandrino after which the latter handed over one plastic bag of marijuana to Bazar who in turn gave a marked ten-peso bill to the appellant as payment for the drug. Thereupon, Bazar gave the pre-arranged hand signal and Reyno proceeded to arrest the appellant and recovered from him the marked money. The team thereafter brought accusedappellant to Camp Olivas. The tea bag, also recovered from the scene, was subsequently submitted for examination to the witness Daisy Babor whose tests confirmed the same to be the prohibited substance of marijuana. In his defense, the accused-appellant alleged that during the night and hour in question, he was standing by the house of his co-accused Alejandrino, chatting with the latter who was looking out from his window. During their conversation, a group of four (4) men arrived, looking for Alejandrino and expressing the desire to buy marijuana. Alejandrino however said he had nothing to sell and thereafter went to the inner portion of his house. Accused-appellant further alleged that since the group's efforts, insofar as Alejandrino was concerned, had been thwarted, he (appellant) then became the focus of their attention and was subjected to a search of his person; and thereafter he was brought blindfolded to Camp Olivas, There, he was confronted with a tea bag of marijuana, but he denied any knowledge as to the same, as well as having received P10.00 from Sgt. Bazar. As earlier stated, the trial court found the accused' guilt to have been established beyond reasonable doubt, and accordingly imposed sentence on him. In support of the present appeal, the accused-appellant raises the following errors of the court a quo: I The trial court erred in not considering the non-presentation of Sgt. Ruben Bazar, the alleged poseur-buyer to the witness stand as a fatal flaw to the cause of the prosecution. II The trial court erred in giving full faith and credence to the testimony of S/Sgt. Pablito Reyno. III The trial court gravely erred in finding the accused guilty beyond reasonable doubt of the crime charged in the information. This Court finds for the accused-appellant. Well-established is the rule that when the inculpatory facts and circumstances are capable of two (2) or more explanations, one of which is consistent with the innocense of the accused and the other consistent with his guilt, then the evidence does not fulfill the test of moral certainty and is not sufficient to support a conviction. 1 In the present case, accused-appellant's version of the circumstances leading to his apprehension constitutes a total denial of the prosecution's allegations. In this regard, this Court has ruled that when there is such a divergence of accounts
it becomes incumbent upon the prosecution to rebut appellant's allegations by presenting . . . the alleged poseur-buyer. This it failed to do, giving rise to the presumption that

evidence willfully suppressed would be adverse if produced. (Rule 131, Sec. 5[e]). This failure constitutes a total flaw in the prosecution's evidence since the so-called informant who was never presented as a witness and never identified, is the best witness for the prosecution. . .. " 2 (emphasis supplied)

Who would have been the best witness for the prosecution? According to the prosecution's own version, Sgt. Bazar, being the alleged poseur-buyer, was the only person who could definitely and categorically attest to the circumstances surrounding the arrest of the accused-appellant. He was the one who transacted with the latter and he was the one who allegedly exchanged a marked P10.00 bill for a tea bag of marijuana. In short, he could have provided the most accurate account of the case. Yet, he was not presented as a witness by the prosecution, and his failure to testify remains unexplained. In such a situation, People vs. De Guzman 3 is enlightening where this Court said: The court can only wonder why the prosecution did not Present Querubin, who allegedly bought the marijuana from de Guzman and paid him the marked money. . . . It is true that each party has the discretion to plot its own strategy, as we have said often enough in many cases, but under the circumstances of this particular case the choice by the prosecution of its witnesses was less than tactical. Querubin was the best witness to narrate the transaction; Bazar could at best only corroborate. . . . xxx xxx xxx The prosecution suggests that if the defense really felt that Querubin would advance its cause, there was nothing to prevent it from calling him as its own witness, as it had a right to do under the Bill of Rights and the Rules of Court. It forgets however, that it was the obligation of the prosecution to prove its allegations, not of the defense to disprove them. Bazar's testimony against de Guzman being insufficient to convict, it was incumbent on the prosecution to bolster its case by calling Querubin to the stand. Anent the court a quo's imputed error of giving credence to the testimony of Sgt. Reyno, this Court's own examination of the record shows that Reyno was positioned some twenty (20) meters away from where Bazar, Alejandrino and the accused were supposed to be transacting the purchase of the prohibited substance. At that distance, considering the lateness of the hour and with no indication that the surrounding area was illuminated in any way, it becomes reasonable to doubt that Reyno actually saw what he testified to have seen. It is a truism that evidence to be believed must not only proceed from the mouth of credible witnesses (which is itself already in doubt in this instance) but must be credible in itself. 4 No better test has yet been found to measure the value and weight of a witness' testimony than its conformity to the knowledge and common experience of mankind. 5 The Court, therefore, cannot give such testimony of Reyno the same credence as the trial court gave to it, despite the entrenched rule that accords great weight to trial court's findings of fact. In the situation at bar the exception to the rule is in order, in the same way that exceptions to such rule have been recognized by this Court (1) when the conclusion is a finding based entirely on speculation; (2) when the inference made is manifestly mistaken, absurd or impossible; (3) where there is grave abuse of discretion; (4) when the judgment is based on a misapprehension of facts; and (5) when the court, in making its findings, went beyond the issues of the case and the same are contrary to the admissions of both the appellant and appellee. 6 It is significant to point out that even the Solicitor-General, as counsel for the appellee, recommends the acquittal of the accusedappellant. Considering the above discussion, the third assigned error requires no further elucidation. One final question, however, remains which further clouds the veracity of the prosecution's version. This has

to do with appellant's co-accused who, according to the Information, remains at large. As alleged by the prosecution, said co-accused (Alejandrino) was with the accused-appellant and Bazar during the alleged transaction, yet, when the police operatives moved in to arrest the accused, co-accused Alejandrino appears to have been ignored. Was he arrested but was able to escape, or did he escape immediately? On the other hand, was he even there in the first place? This appears to be the more likely situation, given the version of the accused-appellant who had testified that after. Alexandrino's avowal that he had no marijuana to sell, he retreated to the inner portion of his house. This detail appears to have been suppressed by the prosecution or overlooked by the court a quo, yet, it remains quite a damaging indication that the case of the prosecution is tainted with misrepresentations, if not contrived incidents. This is again an occasion to remind law enforcement authorities, particularly the rank and file thereof, to be more circumspect in the undertaking of anti-narcotics operations, conducted mostly through the use of civilian informants and buyer-poseurs, where abuse, harrassment, and yes, mistake is more than possible. It is perhaps time to take the hierarchy of our police officials to task, for this is not the first time that these entrapment procedures have been revealed to be a little more than plain police misrepresentation to cover up incompetence or corruption. WHEREFORE, premises considered, the appealed decision is hereby REVERSED and the accused-appellant is ACQUITTED on reasonable doubt. SO ORDERED. Narvasa, C.J., Paras, Regalado and Nocon, JJ., concur.

FIRST DIVISION
[G.R. Nos. 111734-35. June 16, 2000]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FERNANDO A. MALAPAYON, a.k.a. DANIEL S. MARTINEZ, ARNULFO M. CINCO, a.k.a. NOLIE, TEODORO M. CINCO, a.k.a. TEDDY, REMIGIO R. GONZALES, a.k.a. EMY, RAFAEL B. ABELLO, a.k.a. TENYENTE, MACARIO U. CASTILLO, and MERCEDITA PADILLA-CASTILLO, a.k.a. MERCY, accused. MACARIO U. CASTILLO, MERCEDITA P. CASTILLO, REMIGIO R. GONZALES, and RAFAEL B. ABELLO, accused-appellants. DECISION
PARDO, J.: Before the Court are separate appeals of accused Macario U. Castillo, Mercedita Padilla-Castillo, Remigio R. Gonzales and Rafael B. Abello from the decision of the Regional Trial Court, Quezon City[1] convicting them of kidnapping for ransom[2] and Remigio R. Gonzales for the added offense of illegal possession of firearms and ammunition.[3] The court acquitted Rafael B. Abello, Teodoro M. Cinco and Arnulfo M. Cinco of the charge of illegal possession of fire- arms and convicted Fernando A. Malapayon and Remigio R. Gonzales. In the case of kidnapping for ransom, the court convicted Fernando A. Malapayon, Arnulfo M. Cinco, Teodoro M. Cinco, Remigio R. Gonzales, Rafael B. Abello, Macario U. Castillo and Mercedita Padilla-Castillo as principals and sentenced them to each suffer the penalty of reclusion perpetua. They were ordered to indemnify the victim, Wilhelmina Andrada, in the amount of Five Hundred Thousand (P500,000.00) Pesos, and to pay proportional costs. The firearms and ammunition found in the possession of the accused were confiscated in favor of the government.[4] On February 9, 1993, State Prosecutor II of the Department of Justice Reynold Q. Yaneza filed with the Regional Trial Court, Quezon City an information[5] charging accused Fernando A. Malapayon, Arnulfo M. Cinco, Teodoro M. Cinco, Remigio R. Gonzales and Rafael B. Abello with illegal possession of firearms and ammunition, as follows: "That on or about 27 November 1992 and within the jurisdiction of this Honorable Court, the above-named accused, in concert with each other, did then and there willfully, unlawfully, feloniously, and without authority of law possessed the following unlicensed firearms and ammunition which

were recovered and seized by police authorities from their safe house at No. 52 Scout Santiago Street, Quezon City, to wit: "1. One (1) Cal. 5.56 (M-16) Baby Armalite with Serial No. RP 054118; "2. One (1) Short magazine for Cal. 5.56 (M-16) Rifle; "3. Nineteen (19) rounds of live ammunition for Cal. 5.56 (M-16) rifle; "4. One (1) Cal. .38 revolver without Serial Number ("paltik"); "5. One (1) Cal. .38 revolver snub-nosed without Serial Number ("paltik"); and "6. Sixteen (16) rounds of live ammunition for cal. .38 revolver. "CONTRARY TO LAW." On the same day, February 9, 1993, State Prosecutor Yaneza filed another information[6] charging all of the above-named accused[7] together with Macario U. Castillo and Mercedita Padilla-Castillo with kidnapping for ransom, as follows: "That on or about 26 November 1992 and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating, and in confabulation with one another, did then and there willfully, unlawfully and feloniously abducted (sic)WILHELMINA VILLANUEVA ANDRADA along Lantana Street, Quezon City, and detained her against her will in their safe house situated at No. 52 Scout Santiago, Quezon City, with their demand for payment of ransom for her release which was not paid due to her timely rescue on 27 November 1992 by police authorities. "CONTRARY TO LAW." On March 8, 1993, at the arraignment of the accused for the two cases, they pleaded "not guilty".[8] The court ordered the consolidation of the two cases.[9] Trial ensued.[10] The relevant facts are: Wilhelmina Andrada was engaged in the real estate business. She was Vice President and Treasurer of her own agency. Prosecution witness Nancy Millo was her secretary for ten years. Accused-appellants, spouses Macario and Mercedita Castillo were both her sales agents on commission basis.

In November 1992, her agency had a house for sale.[11] Two weeks before, an alleged buyer called. He identified himself as "Albert Gutierrez"[12] who turned out to be accused Arnulfo M. Cinco.[13] On November 25, 1992, "Albert Gutierrez" called Wilhelmina and asked for a discount on the property. He asked if they could meet the next day at the Bank of the Philippine Islands Branch along Kamuning in Quezon City. On November 26, 1992, at 10:00 a. m., "Albert Gutierrez" called and asked if they could meet instead at De los Santos Hospital in Quezon City. Wilhelmina agreed. She and her secretary, Nancy, proceeded to De los Santos Hospital in Wilhelminas white Toyota Corolla.[14] The accused Fernando A. Malapayon and Arnulfo M. Cinco met them. Nancy recognized Arnulfo M. Cinco as the man who introduced himself as "Albert Guttierez". With Wilhelmina driving, they proceeded in Wilhelminas car to Lantana St. as Fernando A. Malapayon supposedly needed to fetch his wife.[15] They reached a house with a brown gate. Fernando A. Malapayon instructed Wilhelmina to stop. She heard Nancy shout. She turned and found Fernando A. Malapayon pointing a .45 caliber pistol at Nancy, instructing her not to move ("huwag kang kikilos"). Wilhelmina tried to get out of the car. Arnulfo M. Cinco grabbed her by the neck and locked her in his grip. They struggled for about three minutes. She wrestled herself from him and got out of the car. She saw a man in a blue shirt and asked him for help. Instead of helping, the man, one of the accused, Teodoro M. Cinco, dragged her back into the car.[16] Nancy was able to escape.[17] The three accused tied Wilhelminas hands with a cord. They covered her mouth and blindfolded her with pieces of cloth. They took her to an apartment along Sct. Santiago St., Quezon City.[18]The apartment[19] used as a safe house was rented by accused Fernando A. Malapayon at the time.[20] Wilhelmina was brought to the second floor of the safe house. She saw three other men inside. The blindfold was apparently not tight enough and not properly placed. She identified the three other men as accused Macario U. Castillo, Rafael B. Abello and Remigio R. Gonzales.[21] While held captive, Wilhelmina heard and sensed several persons, including two women talking in whispers.[22] On November 26, 1992, the victims brother, Dr. Villanueva got a call from one of the kidnappers. The caller demanded a ransom of eight million pesos (P8M). After further negotiations, the demand was lowered to four million pesos (P4M).[23] Fernando Malapayon instructed Remigio Gonzales to guard Wilhelmina Andrada at all times.[24]

On November 26, 1992, the Intelligence Command of the Philippine National Police[25] ("IC-PNP") received information about Wilhelminas kidnapping. Immediately, they mobilized fifteen (15) teams for her rescue.[26] As it happened, in the first two weeks of November 1992, the IC-PNP was already suspicious of Fernando A. Malapayon. In the second week of November, the IC-PNP conducted surveillance operations on the safe house. The surveillance was done in connection with the IC-PNPs "Oplan 2-Timer", where Fernando A. Malapayon was identified as one of their target personalities.[27]Apparently, the authorities had reason to believe that Fernando A. Malapayon masterminded a series of previous kidnappings.[28] Video cameras and still cameras were used to take photographs of the area. There were video tapes showing accused Mercedita Padilla-Castillo, Remigio R. Gonzales and a certain Norma Gatlabayan near the safe house, chatting by the gate and walking around. The tape was recorded during the second week of November 1992. Another tape showed that accused Macario U. Castillo had a key to the safe houses gate which he used to enter.[29] On November 26, 1992, a breakthrough came when Wilhelminas car was sighted in the safe houses garage.[30] On November 27, 1992, a group of policemen headed by Col. Jewel Canson arrived at the safe house and proceeded to the second floor.[31] Wilhelmina heard men shouting, "mga pulis kami". She took off her blindfold. When the police entered the room, Remigio Gonzales threw the firearm he was pointing at Wilhelmina towards one of the rooms corners.[32] More unlicensed firearms and ammunition were found in the safehouse.[33] The accused were arrested[34] and Wilhelmina was brought to Camp Crame.[35] The ransom was never paid as Wilhelmina was timely rescued.[36] On June 21, 1993, after trial, the trial court rendered a decision, the dispositive portion of which reads: "WHEREFORE, accused Rafael B. Abello, Teodoro M. Cinco and Arnulfo M. Cinco, who are charged in Criminal Case No. Q-93-41431 for Illegal Possession of Firearms and Ammunition, are ACQUITTED, for failure of the prosecution to prove their guilt beyond reasonable doubt. Accused Fernando Malapayon and Remigio Gonzales, are found guilty beyond reasonable doubt as principals for the crime of Illegal Possession of Firearms and Ammunition in Violation of P. D. No. 1866, and are sentenced to suffer imprisonment of Eight (8) Years and One (1) Day, as minimum, to Ten (10) Years, as maximum, of Prision Mayor.[37] "In Criminal Case No. Q-93-41432, fortunately for the accused the death penalty had been abolished and reduced to life imprisonment in accordance with Article III, Sec. 19 (1) of the 1987 Constitution. Accused

Fernando Malapayon, also known as Daniel S. Martinez, Arnulfo M. Cinco, Teodoro M. Cinco, Remigio Gonzales, Rafael B. Abello, Macario U. Castillo and Mercedita Padilla-Castillo are found guilty beyond reasonable doubt as principals for the crime of Kidnapping for Ransom in violation of Article 267, of the Revised Penal Code, and are sentenced to suffer the penalty of RECLUSION PERPETUA. They are ordered to indemnify jointly and severally the victim Wilhelmina Villanueva-Andrada in the amount of Five Hundred Thousand (P500,000.00) Pesos, and to pay proportional costs. "The firearms and ammunition offered by the prosecution as exhibits and admitted by the Court are confiscated in favor of the government, to wit: "1. One (1) Cal. 5.56 (M-16) Baby Armalite with Serial No. RP 054118; "2. One (1) Short magazine for Cal. 5.56 (M-16) Rifle; "3. Nineteen (19) rounds of live ammunition for Cal. 5.56 (M-16) rifle; "4. One (1) Cal. .38 revolver without Serial Number (paltik); "5. One (1) Cal. .38 revolver snub-nosed without Serial Number (paltik); and "6. Sixteen (16) rounds of live ammunition for cal. .38 revolver. "SO ORDERED."[38] Of the seven (7) accused, only Mercedita Padilla-Castillo, Macario U. Castillo, Rafael B. Abello and Remigio R. Gonzales appealed.[39] The issue is whether the accused-appellants participated as conspirators in the kidnapping of Wilhelmina. Conspiracy need not be proved by direct evidence. It may be inferred from the conduct of all accused before, during and after the commission of the crime.[40] The conduct should point to a joint purpose and design, concerted action and community of interest. Conspiracy may be proven by circumstantial evidence or deduced from the mode and manner in which the offense was perpetrated.[41] We shall discuss the individual appeals of the accused. First, the appeal of Mercedita Castillo. Mercedita was convicted based on the following circumstances:

First, Mercedita referred the accused, Fernando A. Malapayon to Wilhelmina. [42] She and her spouse, accused-appellant, Macario Castillo are the links that introduced Fernando A. Malapayon to victim, Wilhelmina. Second, when "Albert Gutierrez" called Wilhelmina to inquire about the house for sale, he never mentioned that he was referred by either of the Castillos. [43] This is suspicious. Common practice is for a buyer to inform the seller who referred him. Likewise, agents working on commission basis will not normally pass up a commission by not informing their principal of a referred buyer. Third, while Wilhelmina was held captive, Mercedita freely entered and exited the safe house. She was seen and photographed coming out of the safe house on November 27, 1993. We do not believe that she did not see or know that Wilhelmina was held against her will on the second floor of the small apartment. The excuse that she was there to decorate the apartment was too flimsy to believe. To justify conviction upon circumstantial evidence, the combination of circumstantial evidence must leave no reasonable doubt as to the guilt of the accused. [44] From the aforementioned circumstances, a fair and logical conclusion--that Mercedita participated in the crime of kidnapping Wilhelmina for ransom can be reached. The exculpation of Norma Gatlabayan during preliminary investigation cannot be made the basis for Merceditas acquittal. Public prosecutors during preliminary investigation do not decide whether there is evidence beyond reasonable doubt of the guilt of the person charged. A finding of probable cause does not require an inquiry as to whether there is sufficient evidence to secure a conviction. This is precisely what trial on the merits is for.[45] If Mercedita found any irregularity in Norma Gatlabayans being dropped from the information, Mercedita should have either (1) compelle d Normas prosecution or (2) sought for the dropping of the charges against her with the same agency that conducted the preliminary investigation. The conduct of a preliminary investigation is executive in nature, while trial is a judicial function.[46] Besides, when Mercedita entered her plea, she is deemed to have waived any irregularity in the information and in the preliminary investigation.[47] Consequently, we affirm Mercedita Castillos conviction for kidnapping for ransom. Next, the appeal of Macario Castillo. Wilhelmina testified that when she was brought to the safe house, she saw three men, among them, accused-appellant Macario. Macario saw Wilhelmina, his employer, bound and blindfolded. She was clearly held against her will. Yet, he did not do anything to help her. The reasons which sufficed to convict Mercedita apply also to Macario. We note that Macario and Fernando Malapayon were together when they were both arrested at Saint Lukes Hospital on November 27, 1992.[48] Macario and Fernando Malapayon were together from the time of the abduction to the time of rescue. Verily, Macario cannot claim ignorance of the kidnapping. Here we find a closeness of personal

association and a concurrence of sentiment towards a common unlawful purpose. This indicates participation in a conspiracy.[49] Even in the face of accusations against him, Macario never testified in his defense. This goes against the principle that "the first impulse of an innocent man when accused of wrongdoing is to express his innocence at the first opportune time." [50] In the recent case of People v. Damaso Job,[51] appellants conviction for kidnapping for ransom was affirmed since he did not give any plausible reason for his presence in the safe house. As we did in that case, we do so here. Hence, we affirm Macario Castillos conviction of the charge of kidnapping for ransom. In conspiracy, the act of one is the act of all.[52] We come to the appeal of Rafael Abello. Rafael reasons that he was at the safe house because he was hired to do a painting job.[53] Fernando Malapayon confirmed that at about that time, he hired helpers to paint the apartment. [54] Unlike Macario, Rafael sufficiently explained his presence at the safe house. His justification was not rebutted by the prosecution. Failure of the prosecution to overcome the constitutional presumption of innocence entitles the accused-appellant to an acquittal.[55] Conspiracy must be established, not by conjectures, but by positive and conclusive evidence.[56] Mere companionship does not establish conspiracy.[57] When a circumstance is capable of two interpretations, one consistent with the accuseds guilt, and one with his innocence, the latter must prevail.[58] We resolve to acquit Rafael Abello of the charge against him. Lastly, we discuss Remigio Gonzales appeal. Remigio also explains that he was at the safehouse because he was hired to do a painting job. However, unlike Rafael, Remigio cannot be acquitted. Remigio kept watch over Wilhelmina at gun point. True, he claimed that he did it "against his will" and because he wanted "to please his would-be employer".[59] Still, we do not believe his claim; we cannot acquit. There is sufficient evidence of Remigios participation in the conspiracy to kidnap the victim. By guarding Wilhelmina at gun point, Remigio concurred with the criminal design of the principals and performed an act indispensable to the crimes commission. The law imposes the penalty of reclusion perpetua to death on those guilty as principals in the crime of kidnapping and serious illegal detention when the person kidnapped or detained shall be a minor, female or public officer. The penalty imposed shall be death if the purpose was to extort ransom from the victim.[60] However, since the crime was committed when the death penalty was abolished, we affirm the penalty of reclusion perpetua imposed on accused-appellants, Macario and Mercedita Castillo and Remigio Gonzales.

The trial court erred when it awarded the exorbitant amount of Five Hundred Thousand (P500,000.00) as damages, without designating the purpose and basis for the award. We, therefore, delete the "general" award of damages. However, an award of moral damages is in order. Wilhelmina testified that the kidnapping had an adverse effect on her, making her constantly fearful.[61] In People v. Jeanette Yanson- Dumancas,[62] also a case of kidnapping for ransom, the principals were ordered to pay moral damages in the amount of fifty thousand pesos (P50,000.00). We do the same here. Remigio also appeals his conviction for illegal possession of firearms and ammunition. His appeal must be denied. The requisites for the crime are present. The subject firearms exist. Accused-appellant Remigio possessed it without license.[63] However, the penalty imposed on him by the trial court exceeded that prescribed by law. Under Republic Act No. 8294, amending P. D. No. 1866, the penalty for illegal possession of firearm classified as high powered is prision mayor minimum or six (6) years and one (1) day to eight (8) years and a fine of thirty thousand (P30,000.00) pesos.[64] Here, the offense was committed on November 27, 1992. Since the amendatory law is favorable to the accused, it shall be given retroactive application.[65] And the Indeterminate Sentence Law shall be applicable. [66] In the absence of any modifying circumstance, the penalty shall be imposed in its medium period.[67] Applying the Indeterminate Sentence Law, the Court shall sentence the accused to an indeterminate sentence the maximum term of which shall be that which, in view of the attending circumstances, could be properly imposed under the rules of said Code[68] and the minimum shall be within the range of the penalty next lower to that prescribed by the Code for the offense.[69] WHEREFORE, the appeals of Mercedita Padilla Castillo and Macario Castillo and Remigio Gonzales in Criminal Case No. Q-93-41432 are DENIED. The decision of the Regional Trial Court, Quezon City, dated June 21, 1993, convicting Mercedita and Macario Castillo and Remigio Gonzales as principals of kidnapping for ransom and sentencing each of them to reclusion perpetuais AFFIRMED. Likewise, Remigio Gonzales appeal in Criminal Case No. Q-93-4431 for illegal possession of firearms and ammunition is DENIED and the trial courts decision convicting him as principal of illegal possession of firearms under P. D. No. 1866, as amended, is AFFIRMED, with the modification that accused Remigio Gonzales is sentenced to four (4) years, two (2) months and one (1) day of prision correccional, as minimum to six (6) years, eight (8) months and one ((1) day of prision mayor, as maximum, and to pay a fine of P10,000.00. However, the trial courts award of damages in the amount of five hundre d thousand pesos (P500,000.00) is DELETED. Accused-appellants Mercedita Castillo, Macario Castillo and Remigio Gonzales are each ORDERED to pay, jointly and severally, the

victim Wilhelmina Andrada moral damages in the amount of fifty thousand pesos (P50,000.00). Accused-appellant Rafael B. Abello is ACQUITTED on reasonable doubt. The Director of the Bureau of Corrections is directed to RELEASE him immediately, unless he is lawfully held for another cause and to inform the Court of the date of his release, or the reasons for his continued confinement, within ten (10) days from notice. Costs de oficio. SO ORDERED. Davide, Jr., C.J., (Chairman), Kapunan, and Ynares-Santiago, JJ., concur. Puno, J., no part due to relationship to a counsel.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-47722 July 27, 1943

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ANTONIO Z. OANIS and ALBERTO GALANTA, defendants-appellants. Antonio Z. Oanis in his own behalf. Maximo L. Valenzuela for appellant Galanta. Acting Solicitor-General Ibaez and Assistant Attorney Torres for appellee. MORAN, J.: Charged with the crime of murder of one Serapio Tecson, the accused Antonio Z. Oanis and Alberto Galanta, chief of police of Cabanatuan and corporal of the Philippine Constabulary, respectively, were, after due trial, found guilty by the lower court of homicide through reckless imprudence and were sentenced each to an indeterminate penalty of from one year and six months to two years and two months of prison correccional and to indemnify jointly and severally the heirs of the deceased in the amount of P1,000. Defendants appealed separately from this judgment. In the afternoon of December 24, 1938. Captain Godofredo Monsod, Constabulary Provincial Inspector at Cabanatuan, Nueva Ecija, received from Major Guido a telegram of the following tenor: "Information received escaped convict Anselmo Balagtas with bailarina and Irene in Cabanatuan get him dead or alive." Captain Monsod accordingly called for his first sergeant and asked that he be given four men. Defendant corporal Alberto Galanta, and privates Nicomedes Oralo, Venancio Serna and D. Fernandez, upon order of their sergeant, reported at the office of the Provincial Inspector where they were shown a copy of the above-quoted telegram and a newspaper clipping containing a picture of Balagtas. They were instructed to arrest Balagtas and, if overpowered, to follow the instruction contained in the telegram. The same instruction was given to the chief of police Oanis who was likewise called by the Provincial Inspector. When the chief of police was asked whether he knew one Irene, a bailarina, he answered that he knew one of loose morals of the same name. Upon request of the Provincial Inspector, the chief of police tried to locate some of his men to guide the constabulary soldiers in ascertaining Balagtas' whereabouts, and failing to see anyone of them he volunteered to go with the party. The Provincial Inspector divided the party into two groups with defendants Oanis and Galanta, and private Fernandez taking the route to Rizal street leading to the house where Irene was supposedly living. When this group arrived at Irene's house, Oanis approached one Brigida Mallare, who was then stripping banana stalks, and asked her where Irene's room was. Brigida indicated the place and upon further inquiry also said that Irene was sleeping with her paramour. Brigida trembling, immediately returned to her own room which was very near that occupied by Irene and her paramour. Defendants Oanis and Galanta then went to the room of Irene, and an seeing a man sleeping with his back towards the door where they were, simultaneously or successively fired at him with their .32 and .45 caliber revolvers. Awakened by the gunshots, Irene saw her paramour already wounded, and looking at the door where the shots came, she saw the defendants still firing at him. Shocked by the entire scene. Irene fainted; it turned out later that the person shot and killed was not the notorious criminal Anselmo Balagtas but a peaceful and innocent citizen named Serapio Tecson, Irene's paramour. The Provincial Inspector, informed of the killing, repaired to the scene and when he asked as to who killed the deceased. Galanta, referring to

himself and to Oanis, answered: "We two, sir." The corpse was thereafter brought to the provincial hospital and upon autopsy by Dr. Ricardo de Castro, multiple gunshot wounds inflicted by a .32 and a .45 caliber revolvers were found on Tecson's body which caused his death. These are the facts as found by the trial court and fully supported by the evidence, particularly by the testimony of Irene Requinea. Appellants gave, however, a different version of the tragedy. According to Appellant Galanta, when he and chief of police Oanis arrived at the house, the latter asked Brigida where Irene's room was. Brigida indicated the place, and upon further inquiry as to the whereabouts of Anselmo Balagtas, she said that he too was sleeping in the same room. Oanis went to the room thus indicated and upon opening the curtain covering the door, he said: "If you are Balagtas, stand up." Tecson, the supposed Balagtas, and Irene woke up and as the former was about to sit up in bed. Oanis fired at him. Wounded, Tecson leaned towards the door, and Oanis receded and shouted: "That is Balagtas." Galanta then fired at Tecson. On the other hand, Oanis testified that after he had opened the curtain covering the door and after having said, "if you are Balagtas stand up." Galanta at once fired at Tecson, the supposed Balagtas, while the latter was still lying on bed, and continued firing until he had exhausted his bullets: that it was only thereafter that he, Oanis, entered the door and upon seeing the supposed Balagtas, who was then apparently watching and picking up something from the floor, he fired at him. The trial court refused to believe the appellants. Their testimonies are certainly incredible not only because they are vitiated by a natural urge to exculpate themselves of the crime, but also because they are materially contradictory. Oasis averred that be fired at Tecson when the latter was apparently watching somebody in an attitudes of picking up something from the floor; on the other hand, Galanta testified that Oasis shot Tecson while the latter was about to sit up in bed immediately after he was awakened by a noise. Galanta testified that he fired at Tecson, the supposed Balagtas, when the latter was rushing at him. But Oanis assured that when Galanta shot Tecson, the latter was still lying on bed. It is apparent from these contradictions that when each of the appellants tries to exculpate himself of the crime charged, he is at once belied by the other; but their mutual incriminating averments dovetail with and corroborate substantially, the testimony of Irene Requinea. It should be recalled that, according to Requinea, Tecson was still sleeping in bed when he was shot to death by appellants. And this, to a certain extent, is confirmed by both appellants themselves in their mutual recriminations. According, to Galanta, Oanis shot Tecson when the latter was still in bed about to sit up just after he was awakened by a noise. And Oanis assured that when Galanta shot Tecson, the latter was still lying in bed. Thus corroborated, and considering that the trial court had the opportunity to observe her demeanor on the stand, we believe and so hold that no error was committed in accepting her testimony and in rejecting the exculpatory pretensions of the two appellants. Furthermore, a careful examination of Irene's testimony will show not only that her version of the tragedy is not concocted but that it contains all indicia of veracity. In her crossexamination, even misleading questions had been put which were unsuccessful, the witness having stuck to the truth in every detail of the occurrence. Under these circumstances, we do not feel ourselves justified in disturbing the findings of fact made by the trial court. The true fact, therefore, of the case is that, while Tecson was sleeping in his room with his back towards the door, Oanis and Galanta, on sight, fired at him simultaneously or successively, believing him to be Anselmo Balagtas but without having made previously any reasonable inquiry as to his identity. And the question is whether or not they may, upon such fact, be held responsible for the death thus caused to Tecson. It is contended that, as appellants acted in innocent mistake of fact in the honest performance of their official duties, both of them believing that Tecson was Balagtas, they incur no criminal liability. Sustaining this theory in part, the lower court held and so declared them guilty of the crime of homicide through reckless imprudence. We are of the opinion, however, that, under the circumstances of the case, the crime committed by appellants is murder through specially mitigated by circumstances to be mentioned below.

In support of the theory of non-liability by reasons of honest mistake of fact, appellants rely on the case of U.S. v. Ah Chong, 15 Phil., 488. The maxim is ignorantia facti excusat, but this applies only when the mistake is committed without fault or carelessness. In the Ah Chong case, defendant therein after having gone to bed was awakened by someone trying to open the door. He called out twice, "who is there," but received no answer. Fearing that the intruder was a robber, he leaped from his bed and called out again., "If you enter the room I will kill you." But at that precise moment, he was struck by a chair which had been placed against the door and believing that he was then being attacked, he seized a kitchen knife and struck and fatally wounded the intruder who turned out to be his room-mate. A common illustration of innocent mistake of fact is the case of a man who was marked as a footpad at night and in a lonely road held up a friend in a spirit of mischief, and with leveled, pistol demanded his money or life. He was killed by his friend under the mistaken belief that the attack was real, that the pistol leveled at his head was loaded and that his life and property were in imminent danger at the hands of the aggressor. In these instances, there is an innocent mistake of fact committed without any fault or carelessness because the accused, having no time or opportunity to make a further inquiry, and being pressed by circumstances to act immediately, had no alternative but to take the facts as they then appeared to him, and such facts justified his act of killing. In the instant case, appellants, unlike the accused in the instances cited, found no circumstances whatsoever which would press them to immediate action. The person in the room being then asleep, appellants had ample time and opportunity to ascertain his identity without hazard to themselves, and could even effect a bloodless arrest if any reasonable effort to that end had been made, as the victim was unarmed, according to Irene Requinea. This, indeed, is the only legitimate course of action for appellants to follow even if the victim was really Balagtas, as they were instructed not to kill Balagtas at sight but to arrest him, and to get him dead or alive only if resistance or aggression is offered by him. Although an officer in making a lawful arrest is justified in using such force as is reasonably necessary to secure and detain the offender, overcome his resistance, prevent his escape, recapture him if he escapes, and protect himself from bodily harm (People vs. Delima, 46 Phil, 738), yet he is never justified in using unnecessary force or in treating him with wanton violence, or in resorting to dangerous means when the arrest could be effected otherwise (6 C.J.S., par. 13, p. 612). The doctrine is restated in the new Rules of Court thus: "No unnecessary or unreasonable force shall be used in making an arrest, and the person arrested shall not be subject to any greater restraint than is necessary for his detention." (Rule 109, sec. 2, par. 2). And a peace officer cannot claim exemption from criminal liability if he uses unnecessary force or violence in making an arrest (5 C.J., p. 753; U.S.vs. Mendoza, 2 Phil., 109). It may be true that Anselmo Balagtas was a notorious criminal, a life-termer, a fugitive from justice and a menace to the peace of the community, but these facts alone constitute no justification for killing him when in effecting his arrest, he offers no resistance or in fact no resistance can be offered, as when he is asleep. This, in effect, is the principle laid down, although upon different facts, in U.S. vs. Donoso (3 Phil., 234, 242). It is, however, suggested that a notorious criminal "must be taken by storm" without regard to his right to life which he has by such notoriety already forfeited. We may approve of this standard of official conduct where the criminal offers resistance or does something which places his captors in danger of imminent attack. Otherwise we cannot see how, as in the present case, the mere fact of notoriety can make the life of a criminal a mere trifle in the hands of the officers of the law. Notoriety rightly supplies a basis for redoubled official alertness and vigilance; it never can justify precipitate action at the cost of human life. Where, as here, the precipitate action of the appellants has cost an innocent life and there exist no circumstances whatsoever to warrant action of such character in the mind of a reasonably prudent man, condemnation not condonation should be the rule; otherwise we should offer a premium to crime in the shelter of official actuation. The crime committed by appellants is not merely criminal negligence, the killing being intentional and not accidental. In criminal negligence, the injury caused to another should be unintentional, it being

simply the incident of another act performed without malice. (People vs. Sara, 55 Phil., 939). In the words of Viada, "para que se celifique un hecho de imprudencia es preciso que no haya mediado en el malicia ni intencion alguna de daar; existiendo esa intencion, debera calificarse el hecho del delito que ha producido, por mas que no haya sido la intencion del agente el causar un mal de tanta gravedad como el que se produjo." (Tomo 7, Viada Codigo Penal Comentado, 5.a ed. pag. 7). And, as once held by this Court, a deliberate intent to do an unlawful act is essentially inconsistent with the idea of reckless imprudence (People vs. Nanquil, 43 Phil., 232; People vs. Bindor, 56 Phil., 16), and where such unlawful act is wilfully done, a mistake in the identity of the intended victim cannot be considered as reckless imprudence (People vs. Gona, 54 Phil., 605) to support a plea of mitigated liability. As the deceased was killed while asleep, the crime committed is murder with the qualifying circumstance ofalevosia. There is, however, a mitigating circumstance of weight consisting in the incomplete justifying circumstance defined in article 11, No. 5, of the Revised Penal Code. According to such legal provision, a person incurs no criminal liability when he acts in the fulfillment of a duty or in the lawful exercise of a right or office. There are two requisites in order that the circumstance may be taken as a justifying one: (a) that the offender acted in the performance of a duty or in the lawful exercise of a right; and (b) that the injury or offense committed be the necessary consequence of the due performance of such duty or the lawful exercise of such right or office. In the instance case, only the first requisite is present appellants have acted in the performance of a duty. The second requisite is wanting for the crime by them committed is not the necessary consequence of a due performance of their duty. Their duty was to arrest Balagtas or to get him dead or alive if resistance is offered by him and they are overpowered. But through impatience or over-anxiety or in their desire to take no chances, they have exceeded in the fulfillment of such duty by killing the person whom they believed to be Balagtas without any resistance from him and without making any previous inquiry as to his identity. According to article 69 of the Revised Penal Code, the penalty lower by one or two degrees than that prescribed by law shall, in such case, be imposed. For all the foregoing, the judgment is modified and appellants are hereby declared guilty of murder with the mitigating circumstance above mentioned, and accordingly sentenced to an indeterminate penalty of from five (5) years of prision correctional to fifteen (15) years of reclusion temporal, with the accessories of the law, and to pay the heirs of the deceased Serapio Tecson jointly and severally an indemnity of P2,000, with costs. Yulo, C.J., Bocobo, Generoso and Lopez Vito, A., concur.

Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. Nos. 103501-03 February 17, 1997 LUIS A. TABUENA, petitioner, vs. HONORABLE SANDIGANBAYAN, and THE PEOPLE OF THE PHILIPPINES, respondents. G.R. No. 103507 February 17, 1997 ADOLFO M. PERALTA, petitioner, vs. HON. SANDIGANBAYAN (First Division), and THE PEOPLE OF THE PHILIPPINES, represented by the OFFICE OF THE SPECIAL PROSECUTOR, respondents.

FRANCISCO, J.: Through their separate petitions for review, 1 Luis A. Tabuena and Adolfo M. Peralta (Tabuena and Peralta, for short) appeal the Sandiganbayan decision dated October 12, 1990, 2 as well as the Resolution dated December 20. 1991 3 denying reconsideration, convicting them of malversation under Article 217 of the Revised Penal Code. Tabuena and Peralta were found guilty beyond reasonable doubt Of having malversed the total amount of P55 Million of the Manila International Airport Authority (MIAA) funds during their incumbency as General Manager and Acting Finance Services Manager, respectively, of MIAA, and were thus meted the following sentence: (1) In Criminal Case No. 11758, accused Luis A. Tabuena is sentenced to suffer the penalty of imprisonment of seventeen (17) years and one (1) day of reclusion temporal as minimum to twenty (20) years of reclusion temporal as maximum, and to pay a fine of TWENTY-FIVE MILLION PESOS (P25,000,000.00), the amount malversed. He shall also reimburse the Manila International Airport Authority the sum of TWENTY-FIVE MILLION PESOS (P25,000,000.00). In addition, he shall suffer the penalty of perpetual special disqualification from public office, (2) In Criminal Case No. 11759, accused Luis A. Tabuena is sentenced to suffer the penalty of imprisonment of seventeen (17) years and one (1) day of reclusion temporal as minimum, and twenty (20) years of reclusion temporal as maximum, and to pay a fine of TWENTY-FIVE MILLION PESOS (P25,000,000.00), the amount malversed. He shall also reimburse the Manila International Airport Authority the sum of TWENTY-FIVE MILLION PESOS (P25,000,000.00).

In addition, he shall suffer the penalty of perpetual special disqualification from public office. (3) In Criminal Case No. 11760, accused Luis A. Tabuena and Adolfo M. Peralta are each sentenced to suffer the penalty of imprisonment of seventeen (17) years and one (1) day of reclusion temporalas minimum and twenty (20) years of reclusion temporal as maximum and for each of them to pay separately a fine of FIVE MILLION PESOS (P5,000,000.00) the amount malversed. They shall also reimburse jointly and severally the Manila International Airport Authority the sum of FIVE MILLION PESOS (P5,000,000.00). In addition, they shall both suffer the penalty of perpetual special disqualification from public office. A co-accused of Tabuena and Peralta was Gerardo G. Dabao, then Assistant General Manager of MIAA, has remained at large. There were three (3) criminal cases filed (nos. 11758, 11759 and 11760) since the total amount of P55 Million was taken on three (3) separate dates of January, 1986. Tabuena appears as the principal accused he being charged in all three (3) cases. The amended informations in criminal case nos. 11758, 11759 and 11760 respectively read: That on or about the 16th day of January, 1986, and for sometime subsequent thereto, in the City of Pasay, Philippines, and within the jurisdiction of this Honorable Court, accused Luis A. Tabuena and Gerardo G. Dabao, both public officers, being then the General Manager and Assistant General Manager, respectively, of the Manila International Airport Authority (MIAA), and accountable for public funds belonging to the MIAA, they being the only ones authorized to make withdrawals against the cash accounts of MIAA pursuant to its board resolutions, conspiring, confederating and confabulating with each other, did then and there wilfully, unlawfully, feloniously, and with intent to defraud the government, take and misappropriate the amount of TWENTY FIVE MILLION PESOS (P25,000,000.00) from MIAA funds by applying for the issuance of a manager's check for said amount in the name of accused Luis A. Tabuena chargeable against MIAA's Savings Account No. 274-500-354-3 in the PNB Extension Office at the Manila International Airport in Pasay City, purportedly as partial payment to the Philippine National Construction Corporation (PNCC), the mechanics of which said accused Tabuena would personally take care of, when both accused well knew that there was no outstanding obligation of MIAA in favor of PNCC, and after the issuance of the above-mentioned manager's check, accused Luis A. Tabuena encashed the same and thereafter both accused misappropriated and converted the proceeds thereof to their personal use and benefit, to the damage and prejudice of the government in the aforesaid amount. CONTRARY TO LAW. xxx xxx xxx That on or about the 16th day of January, 1986, and for sometime subsequent thereto, in the City of Pasay. Philippines and within the jurisdiction of this Honorable Court, accused Luis A. Tabuena and Gerardo G. Dabao, both public officers, being then the General Manager and Assistant General Manager, respectively, of the

Manila International Airport Authority (MIAA), and accountable for public funds belonging to the MIAA, they being the only ones authorized to make withdrawals against the cash accounts of MIAA pursuant to its board resolutions, conspiring, confederating and confabulating with each other, did then and there wilfully, unlawfully, feloniously, and with intent to defraud the government, take and misappropriate the amount of TWENTY FIVE MILLION PESOS (P25,000,000.00) from MIAA funds by applying for the issuance of a manager.s check for said amount in the name of accused Luis A. Tabuena chargeable against MIAA's Savings Account No. 274-500-354-3 in the PNB Extension Office at the Manila International Airport in Pasay City, purportedly as partial payment to the Philippine National Construction Corporation (PNCC), the mechanics of which said accused Tabuena would personally take care of, when both accused well knew that there was no outstanding obligation of MIAA in favor of PNCC, and after the issuance of the above-mentioned manager's check, accused Luis A. Tabuena encashed the same and thereafter both accused misappropriated and converted the proceeds thereof to their personal use and benefit, to the damage and prejudice of the government in the aforesaid amount. CONTRARY TO LAW. xxx xxx xxx That on or about the 29th day of January, 1986, and for sometime subsequent thereto, in the City of Pasay, Philippines, and within the jurisdiction of this Honorable Court, accused Luis A. Tabuena and Adolfo M. Peralta, both public officers, being then the General Manager and Acting Manager, Financial Services Department, respectively, of the Manila International Airport Authority (MIAA), and accountable for public funds belonging to the MIAA, they being the only ones authorized to make withdrawals against the cash accounts of MIAA pursuant to its board resolutions, conspiring, confederating and confabulating with each other, did then and there wilfully, unlawfully, feloniously, and with intent to defraud the government, take and misappropriate the amount of FIVE MILLION PESOS (P5,000,000.00) from MIAA funds by applying for the issuance of a manager's check for said amount in the name of accused Luis A. Tabuena chargeable against MIAA's Savings Account No. 274500- 354-3 in the PNB Extension Office at the Manila International Airport in Pasay City, purportedly as partial payment to the Philippine National Construction Corporation (PNCC), the mechanics of which said accused Tabuena would personally take care of, when both accused well knew that there was no outstanding obligation of MIAA in favor of PNCC, and after the issuance of the above-mentioned manager's check, accused Luis A. Tabuena encashed the same and thereafter both accused misappropriated and converted the proceeds thereof to their personal use and benefit, to the damage and prejudice of the government in the aforesaid amount. CONTRARY TO LAW. Gathered from the documentary and testimonial evidence are the following essential antecedents: Then President Marcos instructed Tabuena over the phone to pay directly to the president's office and in cash what the MIAA owes the Philippine National Construction Corporation (PNCC), to which Tabuena replied, "Yes, sir, I will do it." About a week later, Tabuena received from Mrs. Fe RoaGimenez, then private secretary of Marcos, a Presidential Memorandum dated January 8, 1986

(hereinafter referred to as MARCOS Memorandum) reiterating in black and white such verbal instruction, to wit: Office of the President of the Philippines Malacanang January 8, 1986 MEMO TO: The General Manager Manila International Airport Authority You are hereby directed to pay immediately the Philippine National Construction Corporation, thru this Office, the sum of FIFTY FIVE MILLION (P55,000,000.00) PESOS in cash as partial payment of MIAA's account with said Company mentioned in a Memorandum of Minister Roberto Ongpin to this Office dated January 7, 1985 and duly approved by this Office on February 4, 1985. Your immediate compliance is appreciated. (Sgd.) FERDINAND MARCOS. 4 The January 7, 1985 memorandum of then Minister of Trade and Industry Roberto Ongpin referred to in the MARCOS Memorandum, reads in full: MEMORANDUM For: The President From: Minister Roberto V. Ongpin Date: 7 January 1985 Subject: Approval of Supplemental Contracts and Request for Partial Deferment of Repayment of PNCC's Advances for MIA Development Project May I request your approval of the attached recommendations of Minister Jesus S. Hipolito for eight (8) supplemental contracts pertaining to the MIA Development Project (MIADP) between the Bureau of Air Transport (BAT) and Philippine National Construction Corporation (PNCC), formerly CDCP, as follows: 1. Supplemental Contract No. 12 Package Contract No. 2 P11,106,600.95 2. Supplemental Contract No. 13 5,758,961.52 3. Supplemental Contract No. 14 Package Contract No. 2 4,586,610.80 4. Supplemental Contract No. 15 1,699,862.69

5. Supplemental Contract No. 16 Package Contract No. 2 233,561.22 6. Supplemental Contract No. 17 Package Contract No. 2 8,821,731.08 7. Supplemental Contract No. 18 Package Contract No. 2 6,110,115.75 8. Supplemental Contract No. 3 Package Contract No. II 16,617,655.49 (xerox copies only; original memo was submitted to the Office of the President on May 28, 1984) In this connection, please be informed that Philippine National Construction Corporation (PNCC), formerly CDCP, has accomplishment billings on the MIA Development Project aggregating P98.4 million, inclusive of accomplishments for the aforecited contracts. In accordance with contract provisions, outstanding advances totalling P93.9 million are to be deducted from said billings which will leave a net amount due to PNCC of only P4.5 million. At the same time, PNCC has potential escalation claims amounting to P99 million in the following stages of approval/evaluation: Approved by Price Escalation Committee (PEC) but pended for lack of funds P1.9 million Endorsed by project consultants and currently being evaluated by PEC 30.7 million Submitted by PNCC directly to PEC and currently under evaluation 66.5 million Total P99.1 million There has been no funding allocation for any of the above escalation claims due to budgetary constraints. The MIA Project has been completed and operational as far back as 1982 and yet residual amounts due to PNCC have not been paid, resulting in undue burden to PNCC due to additional cost of money to service its obligations for this contract. To allow PNCC to collect partially its billings, and in consideration of its pending escalation billings, may we request for His Excellency's approval for a deferment of the repayment of PNCC's advances to the extent of P30 million corresponding to about 30% of P99.1 million in escalation claims of PNCC, of which P32.5 million has been officially recognized by MIADP consultants but could not be paid due to lack of funding. Our proposal will allow BAT to pay PNCC the amount of P34.5 million out of existing MIA Project funds. This amount represents the excess of the gross billings of PNCC of P98.4 million over the undeferred portion of the repayment of advances of P63.9 million.

(Sgd.) ROBERTO V. ONGPIN Minister 5 In obedience to President Marcos' verbal instruction and memorandum, Tabuena, with the help of Dabao and Peralta, caused the release of P55 Million of MIAA funds by means of three (3) withdrawals. The first withdrawal was made on January 10, 1986 for P25 Million, following a letter of even date signed by Tabuena and Dabao requesting the PNB extension office at the MIAA the depository branch of MIAA funds, to issue a manager's check for said amount payable to Tabuena. The check was encashed, however, at the PNB Villamor Branch. Dabao and the cashier of the PNB Villamor branch counted the money after which, Tabuena took delivery thereof. The P25 Million in cash were then placed in peerless boxes and duffle bags, loaded on a PNB armored car and delivered on the same day to the office of Mrs. Gimenez located at Aguado Street fronting Malacanang. Mrs. Gimenez did not issue any receipt for the money received Similar circumstances surrounded the second withdrawal/encashment and delivery of another P25 Million, made on January 16, 1986. The third and last withdrawal was made on January 31, 1986 for P5 Million. Peralta was Tabuena's co-signatory to the letter- request for a manager's check for this amount. Peralta accompanied Tabuena to the PNB Villamor branch as Tabuena requested him to do the counting of the P5 Million. After the counting, the money was placed in two (2) peerless boxes which were loaded in the trunk of Tabuena's car. Peralta did not go with Tabuena to deliver the money to Mrs. Gimenez' office at Aguado Street. It was only upon delivery of the P5 Million that Mrs. Gimenez issued a receipt for all the amounts she received from Tabuena. The receipt, dated January 30, 1986, reads: Malacanang Manila January 30, 1986 RECEIVED FROM LOUIE TABUENA THE TOTAL AMOUNT OF FIFTY FIVE MILLION PESOS (P55,000,000.00) as of the following dates: Jan. 10 P 25,000,000.00 Jan. 16 25,000,000.00 Jan. 30 5,000,000.00 (Sgd.) Fe Roa-Gimenez The disbursement of the P55 Million was, as described by Tabuena and Peralta themselves, "out of the ordinary" and "not based on the normal procedure". Not only were there no vouchers prepared to support the disbursement, the P55 Million was paid in cold cash. Also, no PNCC receipt for the P55 Million was presented. Defense witness Francis Monera, then Senior Assistant Vice President and Corporate Comptroller of PNCC, even affirmed in court that there were no payments made to PNCC by MIAA for the months of January to June of 1986. The position of the prosecution was that there were no outstanding obligations in favor of PNCC at the time of the disbursement of the P55 Million. On the other hand, the defense of Tabuena and Peralta, in short, was that they acted in good faith. Tabuena claimed that he was merely complying

with the MARCOS Memorandum which ordered him to forward immediately to the Office of the President P55 Million in cash as partial payment of MIAA's obligations to PNCC, and that he (Tabuena) was of the belief that MIAA indeed had liabilities to PNCC. Peralta for his part shared the same belief and so he heeded the request of Tabuena, his superior, for him (Peralta) to help in the release of P5 Million. With the rejection by the Sandiganbayan of their claim of good faith which ultimately led to their conviction, Tabuena and Peralta now set forth a total of ten (10) errors 6 committed by the Sandiganbayan for this Court's consideration. It appears, however, that at the core of their plea that we acquit them are the following: 1) the Sandiganbayan convicted them of a crime not charged in the amended informations, and 2) they acted in good faith. Anent the first proposition, Tabuena and Peralta stress that they were being charged with intentional malversation, as the amended informations commonly allege that: . . . accused . . . conspiring, confederating and other, then and there wilfully, unlawfully, feloniously, and with intent to defraud the government, take and misappropriated the amount of . . . . But it would appear that they were convicted of malversation by negligence. In this connection, the Court's attention is directed to p. 17 of the December 20, 1991 Resolution (denying Tabuena's and Peralta's motion for reconsideration) wherein the Sandiganbayan said: xxx xxx xxx On the contrary, what the evidence shows is that accused Tabuena delivered the P55 Million to people who were not entitled thereto, either as representatives of MIAA or of the PNCC. It proves that Tabuena had deliberately consented or permitted through negligence or abandonment, some other person to take such public funds. Having done so, Tabuena, by his own narration, has categorically demonstrated that he is guilty of the misappropriation or malversation of P55 Million of public funds. (Emphasis supplied.) To support their theory that such variance is a reversible flaw, Tabuena and Peralta argue that: 1) While malversation may be committed intentionally or by negligence, both modes cannot be committed at the same time. 2) The Sandiganbayan was without jurisdiction to convict them of malversation of negligence where the amended informations charged them with intentional malversation. 7 3) Their conviction of a crime different from that charged violated their constitutional right to be informed of the accusation. 8

We do not agree with Tabuena and Peralta on this point. Illuminative and controlling is "Cabello v. Sandiganbayan" 9 where the Court passed upon similar protestations raised by therein accusedpetitioner Cabello whose conviction for the same crime of malversation was affirmed, in this wise: . . . even on the putative assumption that the evidence against petitioner yielded a case of malversation by negligence but the information was for intentional malversation, under the circumstances of this case his conviction under the first mode of misappropriation would still be in order. Malversation is committed either intentionally or by negligence. The dolo or the culpa present in the offense is only a modality in the perpetration of the felony. Even if the mode charged differs from the mode proved, the same offense of malversation is involved and conviction thereof is proper. . . . In Samson vs. Court of Appeals, et. al., we held that an accused charged with willful or intentional falsification can validly be convicted of falsification through negligence, thus: While a criminal negligent act is not a simple modality of a willful crime, as we held in Quizon vs.Justice of the Peace of Bacolor. G.R. No. L-6641, July 28, 1995, but a distinct crime in our Penal Code, designated as a quasi offense in our Penal Code, it may however be said that a conviction for the former can be had under an information exclusively charging the commission of a willful offense, upon the theory that the greater includes the lesser offense. This is the situation that obtains in the present case. Appellant was charged with willful falsification but from the evidence submitted by the parties, the Court of Appeals found that in effecting the falsification which made possible the cashing of the checks in question, appellant did not act with criminal intent but merely failed to take proper and adequate means to assure himself of the identity of the real claimants as an ordinary prudent man would do. In other words, the information alleges acts which charge willful falsification but which turned out to be not willful but negligent. This is a case covered by the rule when there is a variance between the allegation and proof, and is similar to some of the cases decided by this Tribunal. xxx xxx xxx Moreover; Section 5, Rule 116, of the Rules of Court does not require that all the essential elements of the offense charged in the information be proved, it being sufficient that some of said essential elements or ingredients thereof be established to constitute the crime proved. . . . The fact that the information does not allege that the falsification was committed with imprudence is of no moment for here this deficiency appears supplied by the evidence submitted by appellant himself and the result has proven beneficial to him. Certainly, having alleged that the falsification has been willful, it would be incongruous to allege at the same time that it was committed with imprudence for a charge of criminal intent is incompatible with the concept of negligence. Subsequently, we ruled in People vs. Consigna, et. al., that the aforestated rationale and arguments also apply to the felony of malversation, that is, that an accused charged with willful malversation, in an information containing allegations similar to those involved in the present case, can be validly convicted of the same offense of

malversation through negligence where the evidence sustains the latter mode of perpetrating the offense. Going now to the defense of good faith, it is settled that this is a valid defense in a prosecution for malversation for it would negate criminal intent on the part of the accused. Thus, in the two (2) vintage, but significantmalversation cases of "US v. Catolico" 10 and "US v. Elvina," 11 the Court stressed that: To constitute a crime, the act must, except in certain crimes made such by statute, be accompanied by a criminal intent, or by such negligence or indifference to duty or to consequences as, in law, is equivalent to criminal intent. The maxim is actus non facit reum, nisi mens sit rea a crime is not committed if the mind of the person performing the act complained of is innocent. The rule was reiterated in "People v. Pacana," 12 although this case involved falsification of public documents and estafa: Ordinarily, evil intent must unite with an unlawful act for there to be a crime. Actus non facit reum, nisi mens sit rea. There can be no crime when the criminal mind is wanting. American jurisprudence echoes the same principle. It adheres to the view that criminal intent in embezzlement is not based on technical mistakes as to the legal effect of a transaction honestly entered into, and there can be no embezzlement if the mind of the person doing the act is innocent or if there is no wrongful purpose. 13 The accused may thus always introduce evidence to show he acted in good faith and that he had no intention to convert. 14 And this, to our mind, Tabuena and Peralta had meritoriously shown. In so far as Tabuena is concerned, with the due presentation in evidence of the MARCOS Memorandum we are swayed to give credit to his claim of having caused the disbursement of the P55 Million solely by reason of such memorandum. From this premise flows the following reasons and/or considerations that would buttress his innocence of the crime of malversation. First. Tabuena had no other choice but to make the withdrawals, for that was what the MARCOS Memorandum required him to do. He could not be faulted if he had to obey and strictly comply with the presidential directive, and to argue otherwise is something easier said than done. Marcos was undeniably Tabuena's superior the former being then the President of the Republic who unquestionably exercised control over government agencies such as the MIAA and PNCC. 15 In other words, Marcos had a say in matters involving inter-government agency affairs and transactions, such as for instance, directing payment of liability of one entity to another and the manner in which it should be carried out. And as a recipient of such kind of a directive coming from the highest official of the land no less, good faith should be read on Tabuena's compliance, without hesitation nor any question, with the MARCOS Memorandum. Tabuena therefore is entitled to the justifying circumstance of "Any person who acts in obedience to an order issued by a superior for some lawful purpose." 16 The subordinate-superior relationship between Tabuena and Marcos is clear. And so too, is the lawfulness of the order contained in the MARCOS Memorandum, as it has for its purpose partial payment of the liability of one government agency (MIAA) to another (PNCC). However, the unlawfulness of the MARCOS Memorandum was being argued, on the observation, for instance, that the Ongpin Memo referred to in the presidential directive reveals a liability of only about P34.5 Million. The Sandiganbayan in this connection said:

Exhibits "2" and "2-a" (pages 1 and 2 of the memorandum of Min. Ongpin to the President dated January 7, 1985) were mainly: a.) for the approval of eight Supplemental Contracts; and b.) a request for partial deferment of payment by PNCC for advances made for the MIAA Development Project, while at the same time recognizing some of the PNCC's escalation billings which would result in making payable to PNCC the amount of P34.5 million out of existing MIAA Project funds. Thus: "xxx xxx xxx To allow PNCC to collect partially its billings, and in consideration of ifs pending escalation billings, may we request for His Excellency's approval for a deferment of repayment of PNCC's advances to the extent of P30 million corresponding to about 30% of P99.1 million in escalation claims of PNCC, of which P32.6 million has been officially recognized by MIADP consultants but could not be paid due to lack of funding. Our proposal will allow BAT to pay PNCC the amount of P34.5 million out of existing MIA Project funds. This amount represents the excess of the gross billings of PNCC of P98.4 million over the undeferred portion of the repayment of advances of P63.9 million." While Min. Ongpin may have, therefore recognized the escalation claims of the PNCC to MIAA to the extent of P99.1 million (Exhibit 2a), a substantial portion thereof was still in the stages of evaluation and approval, with only P32.6 million having been officially recognized by the MIADP consultants.
If any payments were, therefore, due under this memo for Min. Ongpin (upon which President Marcos' Memo was based) they would only be for a sum of up to P34.5 million. 17

xxx xxx xxx V. Pres. Marcos' order to Tabuena dated January 8, 1986 baseless. Not only was Pres. Marcos' Memo (Exhibit "1") for Tabuena to pay P55 million irrelevant, but it was actually baseless. This is easy to see.
Exhibit "1" purports to refer itself to the Ongpin Memorandum (Exhibit "2", "2-a"); Exhibit "1", however, speaks of P55 million to be paid to the PNCC while Exhibit "2" authorized only P34.5 million. The order to withdraw the amount of P55 million exceeded the approved payment of P34.5 million by P20.5 million. Min. Ongpin's Memo of January 7, 1985 could not therefore serve as a basis for the President's order to withdraw P55 million. 18

Granting this to be true, it will not nevertheless affect Tabuena's goad faith so as to make him criminally liable. What is more significant to consider is that the MARCOS Memorandum is patently legal (for on its face it directs payment of an outstanding liability) and that Tabuena acted under the honest belief that the P55 million was a due and demandable debt and that it was just a portion of a bigger liability to PNCC. This belief is supported by defense witness Francis Monera who, on direct examination, testified that: ATTY ANDRES Q Can you please show us in this Exhibit "7" and "7-a" where it is indicated the receivables from MIA as of December 31, 1985? A As of December 31, 1985, the receivables from MIA is shown on page 2, marked as Exhibit "7-a", sir, P102,475.392.35
xxx xxx xxx 19

ATTY. ANDRES Q Can you tell us, Mr. Witness, what these obligations represent? WITNESS A These obligations represent receivables on the basis of our billings to MIA as contract-owner of the project that the Philippine National Construction Corporation constructed. These are billings for escalation mostly, sir. Q What do you mean by escalation? A Escalation is the component of our revenue billings to the contractowner that are supposed to take care of price increases, sir.
xxx xxx xxx 20

ATTY ANDRES Q When you said these are accounts receivable, do I understand from you that these are due and demandable?
A Yes, sir. 21

Thus, even if the order is illegal if it is patently legal and the subordinate is not aware of its illegality, the subordinate is not liable, for then there would only be a mistake of fact committed in good faith. 22 Such is the ruling in "Nassif v. People" 23 the facts of which, in brief, are as follows:
Accused was charged with falsification of commercial document. A mere employee of R.J. Campos, he inserted in the commercial document alleged to have been falsified the word "sold" by order of his principal. Had he known or suspected that his principal was committing an improper act of falsification, he would be liable either as a co-principal or

as an accomplice. However, there being no malice on his part, he was exempted from criminal liability as he was a mere employee following the orders of his principal. 24

Second. There is no denying that the disbursement, which Tabuena admitted as "out of the ordinary", did not comply with certain auditing rules and regulations such as those pointed out by the Sandiganbayan, to wit: a) [except for salaries and wages and for commutation of leaves] all disbursements above P1,000.00 should be made by check (Basic Guidelines for Internal Control dated January 31, 1977 issued by COA) b) payment of all claims against the government had to be supported with complete documentation (Sec. 4, P.D. 1445, "State Auditing Code of the Philippines). In this connection, the Sandiganbayan observed that:
There were no vouchers to authorize the disbursements in question. There were no bills to support the disbursement. There were no certifications as to the availability of funds for an unquestionably staggering sum of P55 Million. 25

c) failure to protest (Sec. 106, P.D. 1445) But this deviation was inevitable under the circumstances Tabuena was in. He did not have the luxury of time to observe all auditing procedures of disbursement considering the fact that the MARCOS Memorandum enjoined his "immediate compliance" with the directive that he forward to the President's Office the P55 Million in cash. Be that as it may, Tabuena surely cannot escape responsibility for such omission. But since he was acting in good faith, his liability should only be administrative or civil in nature, and not criminal. This follows the decision in "Villacorta v. People" 26 where the Court, in acquitting therein accused municipal treasurer of Pandan, Catanduanes of malversation after finding that he incurred a shortage in his cash accountability by reason of his payment in good faith to certain government personnel of their legitimate wages leave allowances, etc., held that: Nor can negligence approximating malice or fraud be attributed to petitioner. If he made wrong payments, they were in Good faith mainly to government personnel, some of them working at the provincial auditor's and the provincial treasurer's offices And if those payments ran counter to auditing rules and regulations, they did not amount to a criminal offense and he should only be held administratively or civilly liable. Likewise controlling is "US v. Elvina" 27 where it was held that payments in good faith do not amount to criminal appropriation, although they were made with insufficient vouchers or improper evidence. In fact, the Dissenting Opinion's reference to certain provisions in the revised Manual on Certificate of Settlement and Balances apparently made to underscore Tabuena's personal accountability, as agency head, for MIAA funds would all the more support the view that Tabuena is vulnerable to civil sanctions only Sections 29.2 and 295 expressly and solely speak of "civilly liable," describe the kind of sanction imposable on a superior officer who performs his duties with "bad faith, malice or gross negligence"' and on a subordinate officer or employee who commits "willful or negligent acts . . . which are contrary to law, morals, public policy and good customs even if he acted under order or instructions of his superiors."

Third. The Sandiganbayan made the finding that Tabuena had already converted and misappropriated the P55 Million when he delivered the same to Mrs. Gimenez and not to the PNCC, proceeding from the following definitions/concepts of "conversion": "Conversion", as necessary element of offense of embezzlement, being the fraudulent "appropriation to one's own use' of another's property which does not necessarily mean to one's personal advantage but every attempt by one person to dispose of the goods of another without right as if they were his own is conversion to his own use." (Terry v. Water Improvement Dist. No. 5 of Tulsa County, 64 p, 2d 904, 906, 179 Okl. 106) At p. 207, Words and Phrases, Permanent Edition 9A. Conversion is any interference subversive of the right of the owner of personal property to enjoy and control it. The gist of conversion is the usurpation of the owner 's right of property, and not the actual damages inflicted. Honesty of purpose is not a defense. (Ferrera v. Parks, 23 p. 883, 885 19 Or. 141) At page 168, id. xxx xxx xxx The words "convert" and "misappropriate" connote an act of using or disposing of another's property as if it were one's own. They presuppose that the thing has been devoted to a purpose or use different from that agreed upon. To appropriate to one's own use includes not only conversion to one's personal advantage but every attempt to dispose of the property of another without right. People vs. Webber, 57 O.G. p. 2933, 2937 By placing them at the disposal of private persons without due authorization or legal justification, he became as guilty of malversation as if he had personally taken them and converted them to his own use. People vs. Luntao, 50 O.G. p. 1182, 1183 28 We do not agree. It must be stressed that the MARCOS Memorandum directed Tabuena "to pay immediately the Philippine National Construction Corporation, thru this office the sum of FIFTY FIVE MILLION. . .", and that was what Tabuena precisely did when he delivered the money to Mrs. Gimenez. Such delivery, no doubt, is in effect delivery to the Office of the President inasmuch as Mrs. Gimenez was Marcos' secretary then. Furthermore, Tabuena had reasonable ground to believe that the President was entitled to receive the P55 Million since he was certainly aware that Marcos, as Chief Executive, exercised supervision and control over government agencies. And the good faith of Tabuena in having delivered the money to the President's office (thru Mrs. Gimenez), in strict compliance with the MARCOS

Memorandum, was not at all affected even if it later turned out that PNCC never received the money. Thus, it has been said that: Good faith in the payment of public funds relieves a public officer from the crime of malversation. xxx xxx xxx
Not every unauthorized payment of public funds is malversation. There is malversation only if the public officer who has custody of public funds should appropriate the same, or shall take or misappropriate or shall consent, or through abandonment or negligence shall permit any other person to take such public funds. Where the payment of public funds has been made in good faith, and there is reasonable ground to believe that the public officer to whom the fund had been paid was entitled thereto, he is deemed to have acted in good faith, there is no criminal intent, and the payment, if it turns out that it is unauthorized, renders him only civilly but not criminally liable. 29

Fourth. Even assuming that the real and sole purpose behind the MARCOS Memorandum was to siphon-out public money for the personal benefit of those then in power, still, no criminal liability can be imputed to Tabuena. There is no showing that Tabuena had anything to do whatsoever with the execution of the MARCOS Memorandum. Nor is there proof that he profited from the felonious scheme. In short, no conspiracy was established between Tabuena and the real embezzler/s of the P5 Million. In the cases of "US v. Acebedo" 30 and "Ang v. Sandiganbayan", 31 both also involving the crime of malversation, the accused therein were acquitted after the Court arrived at a similar finding of non-proof of conspiracy. In "Acebedo", therein accused, as municipal president of Palo, Leyte, was prosecuted for and found guilty by the lower court of malversation after being unable to turn over certain amounts to the then justice of the peace. It appeared, however, that said amounts were actually collected by his secretary Crisanto Urbina. The Court reversed Acebedo's conviction after finding that the sums were converted by his secretary Urbina without the knowledge and participation of Acebedo. The Court said, which we herein adopt:
No conspiracy between the appellant and his secretary has been shown in this case, nor did such conspiracy appear in the case against Urbina. No guilty knowledge of the theft committed by the secretary was shown on the part of the appellant in this case, nor does it appear that he in any way participated in the fruits of the crime. If the secretary stole the money in question without the knowledge or consent of the appellant and without negligence on his part, then certainly the latter can not be convicted of embezzling the same money or any part thereof. 32

In "Ang", accused-petitioner, as MWSS bill collector, allowed part of his collection to be converted into checks drawn in the name of one Marshall Lu, a non-customer of MWSS, but the checks were subsequently dishonored. Ang was acquitted by this Court after giving credence to his assertion that the conversion of his collections into checks were thru the machinations of one Lazaro Guinto, another MWSS collector more senior to him. And we also adopt the Court's observation therein, that:
The petitioner's alleged negligence in allowing the senior collector to convert cash collections into checks may be proof of poor judgment or too trusting a nature insofar as a superior officer is concerned but there must be stronger evidence to show fraud, malice, or other indicia of deliberateness in the conspiracy cooked up with Marshall Lu. The prosecution failed to show that the petitioner was privy to the conspirational scheme. Much less is there any proof that he profited from the questioned acts. Any suspicions of

conspiracy, no matter how sincerely and strongly felt by the MWSS, must be converted into evidence before conviction beyond reasonable doubt may be imposed. 33

The principles underlying all that has been said above in exculpation of Tabuena equally apply to Peralta in relation to the P5 Million for which he is being held accountable, i.e., he acted in good faith when he, upon the directive of Tabuena, helped facilitate the withdrawal of P5 Million of the P55 Million of the MIAA funds. This is not a sheer case of blind and misguided obedience, but obedience in good faith of a duly executed order. Indeed, compliance to a patently lawful order is rectitude far better than contumacious disobedience. In the case at bench, the order emanated from the Office of the President and bears the signature of the President himself, the highest official of the land. It carries with it the presumption that it was regularly issued. And on its face, the memorandum is patently lawful for no law makes the payment of an obligation illegal. This fact, coupled with the urgent tenor for its execution constrains one to act swiftly without question. Obedientia est legis essentia. Besides, the case could not be detached from the realities then prevailing As aptly observed by Mr Justice Cruz in his dissenting opinion:
We reject history in arbitrarily assuming that the people were free during the era and that the Judiciary was independent and fearless. We know it was not: even the Supreme Court at that time was not free. This is an undeniable fact that we can not just blink away. Insisting on the contrary would only make our sincerity suspect and even provoke scorn for what can only be described as our incredible credulity. 34

But what appears to be a more compelling reason for their acquittal is the violation of the accused's basic constitutional right to due process. "Respect for the Constitution", to borrow once again Mr. Justice Cruz's words, "is more important than securing a conviction based on a violation of the rights of the accused." 35 While going over the records, we were struck by the way the Sandiganbayan actively took part in the questioning of a defense witness and of the accused themselves. Tabuena and Peralta may not have raised this as an error, there is nevertheless no impediment for us to consider such matter as additional basis for a reversal since the settled doctrine is that an appeal throws the whole case open to review, and it becomes the duty of the appellate court to correct such errors as may be found in the judgment appealed from whether they are made the subject of assignments of error or not. 36 Simply consider the volume of questions hurled by the Sandiganbayan. At the taking of the testimony of Francis Monera. then Senior Assistant Vice President and Corporate Comptroller of PNCC, Atty. Andres asked sixteen (16) questions on direct examination. Prosecutor Viernes only asked six (6) questions on cross-examination in the course of which the court interjected a total of twenty-seven (27) questions (more than four times Prosecutor Viernes' questions and even more than the combined total of direct and cross-examination questions asked by the counsels) After the defense opted not to conduct any re-direct examination, the court further asked a total of ten (10) questions. 37 The trend intensified during Tabuena's turn on the witness stand. Questions from the court after Tabuena's cross-examination totalled sixty-seven (67). 38 This is more than five times Prosecutor Viernes' questions on cross-examination (14), and more than double the total of direct examination and cross-examination questions which is thirty-one (31) [17 direct examination questions by Atty. Andres plus 14 cross-examination questions by Prosecutor Viernes]. In Peralta's case, the Justices, after his cross-examination, propounded a total of forty-one (41) questions. 39 But more importantly, we note that the questions of the court were in the nature of cross examinations characteristic of confrontation, probing and insinuation. 40 (The insinuating type was best exemplified in one question addressed to Peralta, which will be underscored.) Thus we beg to

quote in length from the transcripts pertaining to witness Monera, Tabuena and Peralta. (Questions from the Court are marked with asterisks and italicized for emphasis.) (MONERA) (As a background, what was elicited from his direct examination is that the PNCC had receivables from MIAA totalling P102,475,392.35, and although such receivables were largely billings for escalation, they were nonetheless all due and demandable. What follows are the cross-examination of Prosecutor Viernes and the court questions). CROSS-EXAMINATION BY PROS. VIERNES Q You admit that as shown by these Exhibits "7" and "7- a", the items here represent mostly escalation billings. Were those escalation billings properly transmitted to MIA authorities? A I don't have the documents right now to show that they were transmitted, but I have a letter by our President, Mr. Olaguer, dated July 6, 1988, following up for payment of the balance of our receivables from MIA, sir. *AJ AMORES *Q This matter of escalation costs, is it not a matter for a conference between the MIA and the PNCC for the determination as to the correct amount? A I agree, your Honor. As far as we are concerned, our billings are what we deemed are valid receivables And, in fact, we have been following up for payment. *Q This determination of the escalation costs was it accepted as the correct figure by MIA ? A I don't have any document as to the acceptance by MIA your Honor, but our company was able to get a document or a letter by Minister Ongpin to President Marcos, dated January 7, 1985, with a marginal note or approval by former President Marcos. *PJ GARCHITORENA *Q Basically, the letter of Mr. Ongpin is to what effect? A The subject matter is approval of the supplementary contract and request for partial deferment of payment for MIA Development Project, your Honor. *Q It has nothing to do with the implementation of the escalation costs?

A The details show that most of the accounts refer to our escalations, your Honor. *Q Does that indicate the computation for escalations were already billed or you do not have any proof of that A Our subsidiary ledger was based on billings to MIA and this letter of Minister Ongpin appears to have confirmed our billings to MIA, your Honor. *AJ AMORES *Q Were there partial payments made by MIA an these escalation billings? A Based on records available as of today, the P102 million was reduced to about P56.7 million, if my recollection is correct, your Honor. *PJ GARCHITORENA *Q Were the payments made before or after February 1986, since Mr. Olaguer is a new entrant to your company? WITNESS A The payments were made after December 31, 1985 but I think the payments were made before the entry of our President, your Honor. Actually, the payment was in the form of: assignments to State Investment of about P23 million; and then there was P17.8 million application against advances made or formerly given; and there were payments to PNCC of about P2.6 million and there was a payment for application on withholding and contractual stock of about P1 million; that summed up to P44.4 million all in all. And you deduct that from the P102 million, the remaining balance would be about P57 million. *PJ GARCHITORENA *Q What you are saying is that, for all the payments made on this P102 million, only P2 million had been payments in cash ? A Yes, your Honor. *Q The rest had been adjustments of accounts, assignments of accounts, or offsetting of accounts? A Yes, your Honor. *Q This is as of December 31, 1985?

A The P102 million was as of December 31, 1985, your Honor, but the balances is as of August 1987. *Q We are talking now about the P44 million, more or less, by which the basic account has been reduced. These reductions, whether by adjustment or assignment or actual delivery of cash, were made after December 31, 1985? WITNESS A Yes, your Honor. *Q And your records indicate when these adjustments and payments were made? A Yes, your Honor. *AJ AMORES *Q You said there were partial payments before of these escalation billings. Do we get it from you that there was an admission of these escalation costs as computed by you by MIA, since there was already partial payments? A Yes, your Honor. *Q How were these payments made before February 1986, in case or check, if there were payments made? A The P44 million payments was in the form of assignments, your Honor. *PJ GARCHITORENA *Q The question of the Court is, before December 31, 1985, were there any liquidations made by MIA against these escalation billings? A I have not reviewed the details of the record, your Honor. But the ledger card indicates that there were collections on page 2 of the Exhibit earlier presented. It will indicate that there were collections shown by credits indicated on the credit side of the ledger. *AJ AMORES *Q Your ledger does not indicate the manner of giving credit to the MIA with respect to the escalation billings. Was the payment in cash or just credit of some sort before December 31, 1985? A Before December 31, 1985, the reference of the ledger are official receipts and I suppose these were payments in cash, your Honor.

*Q Do you know how the manner of this payment in cash was made by MIA? A I do not know, your Honor. *PJ GARCHITORENA *Q But your records will indicate that? A The records will indicate that, your Honor. *Q Except that you were not asked to bring them? A Yes, your Honor. *Q At all events, we are talking of settlement or partial liquidation prior to December 31, 1985? A Yes, your Honor. *PJ GARCHITORENA *Q Subsequent thereto, we are talking merely of about P44 million? A Yes, your Honor, as subsequent settlements. *Q After December 31, 1985? A Yes, your Honor. *Q And they have liquidated that, as you described it, by way of assignments, adjustments, by offsets and by P2 million of cash payment? A Yes, your Honor. *AJ AMORES *Q Your standard operating procedure before December 31, 1985 in connection with or in case of cash payment, was the payment in cash or check? A I would venture to say it was by check, your Honor. *Q Which is the safest way to do it? A Yes, your Honor. "PJ GARCHITORENA

*Q And the business way? A Yes, your Honor. PJ GARCHITORENA Continue. PROS VIERNES Q You mentioned earlier about the letter of former Minister Ongpin to the former President Marcos, did you say that letter concurs with the escalation billings reflected in Exhibits "7" and "7-a"? WITNESS A The Company or the management is of the opinion that this letter, a copy of which we were able to get, is a confirmation of the acceptance of our billings, sir. Q This letter of Minister Ongpin is dated January 7, 1985, whereas the entries of escalation billings as appearing in Exhibit "7" are dated June 30, 1985, would you still insist that the letter of January 1985 confirms the escalation billings as of June 1985? A The entries started June 30 in the ledger card. And as of December 31, 1985, it stood at P102 million after payments were made as shown on the credit side of the ledger. I suppose hat the earlier amount, before the payment was made, was bigger and therefore I would venture to say that the letter of January 7, 1985 contains an amount that is part of the original contract account. What are indicated in the ledger are escalation billings. *PJ GARCHITORENA *Q We are talking about the letter of Minister Ongpin? A The letter of Minister Ongpin refers to escalation billings, sir. *Q As of what date? A The letter is dated January 7, 1985, your Honor. PJ GARCHITORENA Continue. PROS. VIERNES

Q In accordance with this letter marked Exhibit "7" and "7-a", there were credits made in favor of MIA in July and November until December 1985. These were properly credited to the account of MIA? WITNESS A Yes, sir. Q In 1986. from your records as appearing in Exhibit "7-a", there were no payments made to PNCC by MIA for the months of January to June 1986? A Yes, sir. Q And neither was the amount of P22 million remitted to PNCC by MIA? A Yes, sir. PROS VIERNES That will be all, your Honor. PJ GARCHITORENA Redirect? ATTY ANDRES No redirect, your Honor. *PJ GARCHITORENA Questions from the Court. *AJ AMORES *Q From your records, for the month of January 1986, there was no payment of this escalation account by MIA? WITNESS A Yes, your Honor. But on page 2 of Exhibit "7" there appears an assignment of P23 million, that was on September 25, 1986. *Q But that is already under the present administration? A After February 1986, your Honor.

*Q But before February, in January 1986, there was no payment whatsoever by MIA to PNCC? A Per record there is none appearing, your Honor. *PJ GARCHITORENA
*Q The earliest payment, whether by delivery of cash equivalent or of adjustment of account, or by assignment, or by offsets, when did these payments begin?

A Per ledger card, there were payments in 1985, prior to December 31, 1985, your Honor. *Q After December 31, 1985? A There appears also P23 million as credit, that is a form of settlement, your Honor. *Q This is as of September 25? A Yes, your Honor. There were subsequent settlements P23 million is just part of the P44 million. *Q And what you are saying is that, PNCC passed the account to State Investment. In other words, State Investment bought the credit of MIA? A Yes, your Honor. *Q And the amount of credit or receivables sold by PNCC to State Investment is P23 million? A Yes, your Honor. *Q Is there a payback agreement? A I have a copy of the assignment to State Investment but I have not yet reviewed the same, your Honor. *AJ AMORES *Q As of now, is this obligation of MIA, now NAIA, paid to PNCC? A There is still a balance of receivables from MIA as evidenced by a collection letter by our President dated July 6, 1988, your Honor. The amount indicated in the letter is P55 million. PJ GARCHITORENA Any clarifications you would like to make Mr. Estebal?

ATTY ESTEBAL None, your Honor. PJ GARCHITORENA Mr. Viernes? PROS VIERNES No more, your Honor. PJ GARCHITORENA
The witness is excused. Thank you very much Mr. Monera. . . . 41

(TABUENA) (In his direct examination, he testified that he caused the preparation of the checks totalling P55 Million pursuant to the MARCOS Memorandum and that he thereafter delivered said amount in cash on the three (3) dates as alleged in the information to Marcos' private secretary Mrs. Jimenez at her office at Aguado Street, who thereafter issued a receipt. Tabuena also denied having used the money for his own personal use.) CROSS-EXAMINATION BY PROS. VIERNES Q The amount of P55 million as covered by the three (3) checks Mr. Tabuena, were delivered on how many occasions? A Three times, sir. Q And so, on the first two deliveries, you did not ask for a receipt from Mrs. Gimenez? A Yes, sir. Q It was only on January 30, 1986 that this receipt Exhibit "3" was issued by Mrs. Gimenez? A Yes, sir. *PJ GARCHITORENA *Q So January 30 is the date of the last delivery? A I remember it was on the 31st of January, your Honor What happened is that, I did not notice the date placed by Mrs. Gimenez. Q Are you telling us that this Exhibit "3" was incorrectly dated

A Yes, your Honor. *Q Because the third delivery was on January 31st and yet the receipt was dated January 30? A Yes, your Honor. *Q When was Exhibit "3" delivered actually by Mrs. Gimenez? A January 31st, your Honor. PJ GARCHITORENA Continue. PROS VIERNES Q You did not go to Malacaang on January 30, 1986? A Yes, sir, I did not. Q Do you know at whose instance this Exhibit "3" was prepared? A I asked for it, sir. Q You asked for it on January 31, 1986 when you made the last delivery? A Yes, sir. Q Did you see this Exhibit "3" prepared in the Office of Mrs. Gimenez? A Yes, sir. Q This receipt was typewritten in Malacaang stationery. Did you see who typed this receipt? A No, sir. What happened is that, she went to her room and when she came out she gave me that receipt. *PJ GARCHITORENA Q What you are saying is, you do not know who typed that receipt? WITNESS A Yes, your Honor. *Q Are you making an assumption that she typed that receipt?

A Yes, your Honor, because she knows how to type. *Q Your assumption is that she typed it herself? A Yes, your Honor. PJ GARCHITORENA Proceed. PROS. VIERNES Q This receipt was prepared on January 31, although it is dated January 30? A Yes, sir, because I was there on January 31st. Q In what particular place did Mrs. Gimenez sign this Exhibit "3"? A In her office at Aguado, sir. Q Did you actually see Mrs. Gimenez signing this receipt Exhibit "3"? A No, sir, I did not. She was inside her room. Q So, she was in her room and when she came out of the room, she handed this receipt to you already typed and signed? A Yes, sir. *AJ HERMOSISIMA *Q So, how did you know this was the signature of Mrs. Gimenez? WITNESS A Because I know her signature, your Honor. I have been receiving letters from her also and when she requests for something from me. Her writing is familiar to me. So, when the Presiding Justice asked you as to how you knew that this was the signature of Mrs. Gimenez and you answered that you saw Mrs. Gimenez signed it, you were not exactly truthful? A What I mean is, I did not see her sign because she went to her room and when she came out, she gave me that receipt, your Honor. PJ GARCHITORENA

That is why you have to wait for the question to be finished and listen to it carefully. Because when I asked you, you said you saw her signed it. Be careful Mr. Tabuena. WITNESS Yes, your Honor. PJ GARCHITORENA Continue. PROS VIERNES Was there another person inside the office of Mrs. Gimenez when she gave you this receipt Exhibit "3"? A Nobody, sir. Q I noticed in this receipt that the last delivery of the sum of P55 million was made on January 30. Do we understand from you that this date January 30 is erroneous? A Yes, sir, that January 30 is erroneous. I noticed it only afterwards. This should be January 31st, sir. PROS VIERNES That will be all, your Honor. PJ GARCHITORENA Redirect? ATTY. ANDRES No redirect, your Honor. *PJ GARCHITORENA Questions from the Court. *AJ HERMOSISIMA *Q Why did you not ask for a receipt on the first and second deliveries? A Because I know that the delivery was not complete yet, your Honor. *PJ GARCHITORENA

*Q So you know that the total amount to be delivered was P55 million') A Yes, your Honor. PJ GARCHITORENA Response by Mr. Peralta to the testimony of Mr. Tabuena. ATTY. ESTEBAL We are adopting the testimony of Mr. Tabuena and we will also present the accused, your Honor. *AJ DEL ROSARIO "Q From whom did you receive the President's memorandum marked Exhibit "1"? Or more precisely, who handed you this memorandum? A Mrs. Fe Roa Gimenez, your Honor. Q Did you ask Mrs, Fe Gimenez for what purpose the money was being asked? A The money was in payment for the debt of the MIA Authority to PNCC, your Honor. *Q If it was for the payment of such obligation why was there no voucher prepared to cover such payment? In other words, why was the delivery of the money not covered by any voucher? A The instruction to me was to give it to the Office of the President, your Honor. *PJ GARCHITORENA *Q Be that as it may, why was there no voucher to cover this particular disbursement? A I was just told to bring it to the Office of the President, your Honor. *AJ DEL ROSARIO *Q Was that normal procedure for you to pay in cash to the Office of the President for obligations of the MIAA in payment of its obligation to another entity? WITNESS

A No, your Honor, I was just following the Order to me of the President. *PJ GARCHITORENA *Q So the Order was out of the ordinary? A Yes, your Honor. *AJ DEL ROSARIO Did you file any written protest with the manner with which such payment was being ordered? A No, your Honor. *Q Why not? A Because with that instruction of the President to me, I followed, your Honor. *Q Before receiving this memorandum Exhibit "1", did the former President Marcos discuss this maitter with you? A Yes, your Honor. *Q When was that? A He called me up earlier, a week before that, that he wants to me pay what I owe the PNCC directly to his office in cash, your Honor. *PJ GARCHITORENA *Q By "I OWE ", you mean the MIAA? WITNESS A Yes, your Honor. *AJ DEL ROSARIO *Q And what did you say in this discussion you had with him? A I just said, "Yes, sir, I will do it/" *Q Were you the one who asked for a memorandum to be signed by him? A No, your Honor.

*Q After receiving that verbal instruction for you to pay MIAA's obligation with PNCC, did you not on your own accord already prepare the necessary papers and documents for the payment of that obligation? A He told me verbally in the telephone that the Order for the payment of that obligation is forthcoming, your Honor. I will receive it. *Q Is this the first time you received such a memorandum from the President? A Yes, your Honor. *Q And was that the last time also that you received such a memorandum? A Yes, your Honor. *Q Did you not inquire, if not from the President, at least from Mrs. Gimenez why this procedure has to be followed instead of the regular procedure? A No, sir. *AJ DEL ROSARIO *Q Why did you not ask? A I was just ordered to do this thing, your Honor. *AJ HERMOSISIMA *Q You said there was an "I OWE YOU"? A Yes, your Honor. *Q Where is that "I OWE YOU" now? A All I know is that we owe PNCC the amount of P99.1 million, your Honor. MIAA owes PNCC that amount. *Q Was this payment covered by receipt from the PNCC? A It was not covered, your Honor. *Q So the obligation of MIAA to PNCC was not, for the record, cancelled by virtue of that payment?

A Based on the order to me by the former President Marcos ordering me to pay that amount to his office and then the mechanics will come after, your Honor. *Q Is the PNCC a private corporation or government entity? A I think it is partly government, your Honor. *PJ GARCHITORENA *Q That is the former CDCP? A Yes, your Honor. *AJ HERMOSISIMA *Q Why were you not made to pay directly, to the PNCC considering that you are the Manager of MIA at that time and the PNCC is a separate corporation, not an adjunct of Malacaang? WITNESS A I was just basing it from the Order of Malacanang to pay PNCC through the Office of the President, your Honor. *Q Do you know the President or Chairman of the Board of PNCC? A Yes, your Honor. "Q How was the obligation of MIAA to PNCC incurred. Was it through the President or Chairman of the Board? A PNCC was the one that constructed the MIA, your Honor. *Q Was the obligation incurred through the President or Chairman of the Board or President of the PNCC? In other words, who signed the contract between PNCC and MIAA? A Actually, we inherited this obligation, your Honor. The one who signed for this was the former Director of BAT which is General Singzon. Then when the MIA Authority was formed, all the obligations of BAT were transferred to MIAA. So the accountabilities of BAT were transferred to MIAA and we are the ones that are going to pay, your Honor. *Q Why did you agree to pay to Malacaang when your obligation was with the PNCC? A I was ordered by the President to do that, your Honor.

*Q You agreed to the order of the President notwithstanding the fact that this was not the regular course or Malacaang was not the creditor? A I saw nothing wrong with that because that is coming, from the President, your Honor. *Q The amount was not a joke, amounting to P55 million, and you agreed to deliver money in this amount through a mere receipt from the private secretary? A I was ordered by the President, your Honor. *PJ GARCHITORENA *Q There is no question and it can be a matter of judicial knowledge that you have been with the MIA for sometime? A Yes, your Honor. *Q Prior to 1986? A Yes, your Honor. *Q Can you tell us when you became the Manager of MIA? A I became Manager of MIA way back, late 1968, your Honor. *Q Long before the MIA was constituted as an independent authority? A Yes, your Honor. *PJ GARCHITORENA *Q And by 1986, you have been running the MIA for 18 years? WITNESS A Yes, your Honor. *Q And prior to your Joining the MIA, did you ever work for the government? A No, your Honor. *Q So, is it correct for us to say that your joining the MIA in 1968 as its Manager was your first employment ,with the government? A Yes, your Honor.

*Q While you were Manager of MIA, did you have other subsequent concurrent positions in the government also? A I was also the Chairman of the Games and Amusement Board, your Honor. *Q But you were not the executive or operating officer of the Games and Amusement Board? A I was, your Honor. *Q As Chairman you were running the Games and Amusement Board? A Yes, your Honor. *Q What else, what other government positions did you occupy that time? A I was also Commissioner of the Game Fowl Commission, your Honor. *PJ GARCHITORENA *Q That is the cockfighting? WITNESS A Yes, your Honor. *Q Here, you were just a member of the Board? A Yes, your Honor. *Q So you were not running the commission? A Yes, your Honor. *Q Any other entity? A No more, your Honor. *Q As far as you can recall, besides being the Manager of the MIA and later the MIAA for approximately 18 years, you also ran the Games and Amusement Board as its executive officer? A Yes, your Honor. *Q And you were a commissioner only of the Came Fowl Commission?

A Yes, your Honor. *Q Who was running the commission at that time? A I forgot his name, but he retired already, your Honor. *Q All of us who joined the government, sooner or later, meet with our Resident COA representative? A Yes, your Honor. *PJ GARCHITORENA *Q And one of our unfortunate experience (sic) is when the COA Representative comes to us and says: "Chairman or Manager, this cannot be". And we learn later on that COA has reasons for its procedure and we learn to adopt to them? WITNESS A Yes, your Honor. *Q As a matter of fact, sometimes we consider it inefficient, sometimes we consider it foolish, but we know there is reason in this apparent madness of the COA and so we comply? A Yes, your Honor. *Q And more than anything else the COA is ever anxious for proper documentation and proper supporting papers? A Yes, your Honor. *Q Sometimes, regardless of the amount? A Yes, your Honor. *Q Now, you have P55 million which you were ordered to deliver in cash, not to the creditor of the particular credit, and to be delivered in armored cars to be acknowledged only by a receipt of a personal secretary. After almost 18 years in the government service and having had that much time in dealing with COA people, did it not occur to you to call a COA representative and say, "What will I do here?" A I did not, your Honor. *PJ GARCHITORENA

*Q Did you not think that at least out of prudence, you should have asked the COA for some guidance on this matter so that you will do it properly? WITNESS A What I was going to do is, after those things I was going to tell that delivery ordered by the President to the COA, your Honor. *Q That is true, but what happened here is that you and Mr. Dabao or you and Mr. Peralta signed requests for issuance of Manager's checks and you were accommodated by the PNB Office at Nichols without any internal documentation to justify your request for Manager's checks? A Yes, your Honor. *Q Of course we had no intimation at that time that Mr. Marcos will win the elections but even then, the Daily Express, which was considered to be a newspaper friendly to the Marcoses at that time, would occasionally come with so-called expose, is that not so? A Yes, your Honor. *Q And worst, you had the so-called mosquito press that would always come out with the real or imagined scandal in the government and place it in the headline, do you recall that? A Yes, your Honor. *PJ GARCHITORENA Under these circumstances, did you not entertain some apprehension that some disloyal employees might leak you out and banner headline it in some mosquito publications like the Malaya at that time? WITNESS A No, your Honor. *PJ GARCHITORENA I bring this up because we are trying to find out different areas of fear. We are in the government and we in the government fear the COA and we also fear the press. We might get dragged into press releases on the most innocent thing. You believe that? A Yes, your Honor.

*Q And usually our best defense is that these activities are properly documented? A Yes, your Honor. *Q In this particular instance, your witnesses have told us about three (3) different trips from Nichols to Aguado usually late in the day almost in movie style fashion. I mean, the money being loaded in the trunk of your official car and then you had a back-up truck following your car? A Yes, your Honor. *Q Is that not quite a fearful experience to you ? A I did not think of that at that time, your Honor. *PJ GARCHITORENA "Q You did not think it fearful to be driving along Roxas Boulevard with P25 million in the trunk of your car? WITNESS A We have security at that time your Honor. ATTY. ANDRES Your Honor, the P25 million was in the armored car; only P5 million was in the trunk of his car. *PJ GARCHITORENA Thank you for the correction. Even P1 million only. How much more with P5 million inside the trunk of your car, was that not a nervous experience? A As I have said, your Honor, I never thought of that. PJ GARCHITORENA
Thank you very much, Mr. Tabuena. You are excused. . . . 42

(PERALTA) (He testified on direct examination that he co-signed with Tabuena a memorandum request for the issuance of the Manager's Check for P5 Million upon order of Tabuena and that he [Peralta] was aware that MIAA had an existing obligation with PNCC in the amount of around P27 Million. He affirmed having accompanied Tabuena at the PNB Villamor Branch to withdraw the P5 Million, but denied having misappropriated for his own benefit said amount or any portion thereof.)

CROSS-EXAMINATION BY PROS VIERNES Q Will you please tell the Honorable Court why was it necessary for you to co-sign with Mr. Tabuena the request for issuance of Manager's check in the amount of P5 million? A At that time I was the Acting Financial Services Manager of MIAA, sir, and all withdrawals of funds should have my signature because I was one of the signatories at that time. Q As Acting Financial Services Manager of MIAA, you always co-sign with Mr. Tabuena in similar requests for the issuance of Manager's checks by the PNB? A That is the only occasion I signed, sir. Q Did you say you were ordered by Mr. Tabuena to sign the request? A Yes, sir, and I think the order is part of the exhibits and based on that order, I co-signed in the request for the issuance of Manager's check in favor of Mr. Luis Tabuena. PROS VIERNES Q Was there a separate written order for you to co-sign with Mr. Tabuena? WITNESS A Yes, sir, an order was given to me by Mr. Tabuena. *PJ GARCHITORENA Was that marked in evidence? WITNESS Yes, your Honor. *PJ GARCHITORENA What exhibit? WITNESS I have here a copy, your Honor. This was the order and it was marked as exhibit "N". PROS VIERNES

It was marked as Exhibit "M", your Honor. Q How did you know there was an existing liability of MIAA in favor of PNCC at that time? A Because prior to this memorandum of Mr. Tabuena, we prepared the financial statement of MIAA as of December 31, 1985 and it came to my attention that there was an existing liability of around P27,999,000.00, your Honor. Q When was that Financial Statement prepared? A I prepared it around January 22 or 24, something like that, of 1986, sir. Q Is it your usual practice to prepare the Financial Statement after the end of the year within three (3) weeks after the end of the year? A Yes, sir, it was a normal procedure for the MIAA to prepare the Financial Statement on or before the 4th Friday of the month because there will be a Board of Directors Meeting and the Financial Statement of the prior month will be presented and discussed during the meeting. *PJ GARCHITORENA *Q This matter of preparing Financial Statement was not an annual activity but a monthly activity? A Yes, your Honor. *Q This Financial Statement you prepared in January of 1986 recapitulated the financial condition as of the end of the year? A Yes, your Honor. PJ GARCHITORENA Continue. PROS VIERNES Q You made mention of a request for Escalation Clause by former Minister Ongpin. Did you personally see that request? A When this order coming from Mr. Tabuena was shown to me, I was shown a copy, sir. I have no file because I just read it. Q It was Mr. Tabuena who showed you the letter of Minister Ongpin?

A Yes, sir. *PJ GARCHITORENA And that will be Exhibit? ATTY. ANDRES Exhibit "2" and "2-A", your Honor. PROS VIERNES Q You also stated that you were with Mr. Tabuena when you withdrew the amount of P5 million from the PNB Extension Office at Villamor? A Yes, sir. Q Why was it necessary for you to go with him on that occasion? A Mr. Tabuena requested me to do the counting by million, sir. So what I did was to bundle count the P5 million and it was placed in two (2) peerless boxes. Q Did you actually participate in the counting of the money by bundles? A Yes, sir. Q Bundles of how much per bundle? A If I remember right, the bundles consisted of P100s and P50s, sir. Q No P20s and P10s? A Yes, sir, I think it was only P100s and P50s. *PJ GARCHITORENA *Q If there were other denominations, you can not recall? A Yes, your Honor. PROS VIERNES Q In how many boxes were those bills placed? A The P5 million were placed in two (2) peerless boxes, Q And you also went with Mr. Tabuena to Aguado?

A No, sir, I was left behind at Nichols. After it was placed at the trunk of the car of Mr. Tabuena, I was left behind and I went back to my office at MIA. Q But the fact is that, this P5 million was withdrawn at passed 5:00 o'clock in the afternoon? A I started counting it I think at around 4:30, sir. It was after office hours. But then I was there at around 4:00 o'clock and we started counting at around 4:30 p.m. because they have to place it in a room, which is the office of the Manager at that time. Q And Mr. Tabuena left for Malacaang after 5:00 o'clock in the afternoon of that date? A Yes, sir. After we have counted the money, it was placed in the peerless boxes and Mr. Tabuena left for Malacanang. PROS VIERNES Q And you yourself, returned to your office at MIA? WITNESS A Yes, sir. Q Until what time do you hold office at the MIA? A Usually I over-stayed for one (1) or two (2) hours just to finish the paper works in the office, sir. Q So, even if it was already after 5:00 o'clock in the afternoon, you still went back to your office at MIA? A Yes, sir. PROS VIERNES That will be all, your Honor. PJ GARCHITORENA Redirect? ATTY. ESTEBAL No redirect, your Honor. *PJ GARCHITORENA

Questions from the Court. *AJ DEL ROSARIO *Q Did you not consider it as odd that your obligation with the PNCC had to be paid in cash? WITNESS A Based on the order of President Marcos that we should pay in cash, it was not based on the normal procedure, your Honor. *Q And, as Acting Financial Services Manager, you were aware that all disbursements should be covered by vouchers? A Yes, your Honor, the payments should be covered by vouchers. But then, inasmuch as what we did was to prepare a request to the PNB, then this can be covered by Journal Voucher also. *Q Was such payment of P5 million covered by a Journal Voucher? A Yes, your Honor. *Q Did you present that Journal Voucher here in Court? A We have a copy, your Honor. *Q Do you have a copy or an excerpt of that Journal Voucher presented in Court to show that payment? A We have a copy of the Journal Voucher, your Honor. *Q Was this payment of P5 million ever recorded in a cashbook or other accounting books of MIAA ? A The payment of P5 million was recorded in a Journal Voucher, your Honor. *PJ GARCHITORENA *Q In other words, the recording was made directly to the Journal? WITNESS A Yes, your Honor. *Q There are no other separate documents as part of the application for Manager's Check? A Yes, your Honor, there was none.

*AJ DEL ROSARIO *Q After the payment was made, did your office receive any receipt from PNCC? A I was shown a receipt by Mr. Tabuena, the receipt given by Mrs. Fe Roa Gimenez, your Honor. Inasmuch as the payment should be made through the Office of the president, I accepted the receipt given by Mrs. Fe Gimenez to Mr. Tabuena. *Q After receiving that receipt, did you prepare the necessary supporting documents, vouchers, and use that receipt as a supporting document to the voucher? A Your Honor, a Journal Voucher was prepared for that. *Q How about a disbursement voucher? A Inasmuch as this was a request for Manager's check, no disbursement voucher was prepared, your Honor. *AJ DEL ROSARIO *Q Since the payment was made on January 31, I986, and that was very close to the election held in that year, did you not entertain any doubt that the amounts were being used for some other purpose? ATTY. ESTEBAL With due respect to the Honorable Justice, we are objecting to the question on the ground that it is improper. *AJ DEL ROSARIO I will withdraw the question. *PJ GARCHITORENA What is the ground for impropriety? ATTY. ESTEBAL This is not covered in the direct examination, and secondly, I don't think there was any basis, your Honor. *PJ GARCHITORENA Considering the withdrawal of the question, just make the objection on record.

*AJ HERMOSISIMA *Q As a Certified Public Accountant and Financial Manager of the MIAA, did you not consider it proper that a check be issued only after it is covered by a disbursement voucher duly approved by the proper authorities ? A Your Honor, what we did was to send a request for a Manager's check to the PNB based on the request of Mr. Tabuena and the order of Mr. Tabuena was based on the Order of President Marcos. *PJ GARCHITORENA *Q In your capacity as Financial Services Manager of the MIAA, did you not think it proper to have this transaction covered by a disbursement voucher? WITNESS A Based on my experience, payments out of cash can be made through cash vouchers, or even though Journal Vouchers, or even through credit memo, your Honor. *AJ HERMOSISIMA *Q This was an obligation of the MIAA to the PNCC. Why did you allow a disbursement by means of check in favor of Mr. Luis Tabuena, your own manager? A We based the payment on the order of Mr. Tabuena because that was the order of President Marcos to pay PNCC through the Office of the President and it should be paid in cash, your Honor. *Q You are supposed to pay only on legal orders. Did you consider that legal? ATTY. ESTEBAL With due respect to the Honorable Justice, the question calls for a conclusion of the witness. *PJ GARCHITORENA Considering that tire witness is an expert, witness may answer. WITNESS A The order of president Marcos was legal at that time because the order was to pay PNCC the amount of P5 million through the Office of the President and it should be paid in cash, your Honor. And at that time, I know for a fact also that there was an existing P.D. wherein

the President of the Republic of the Philippines can transfer funds from one office to another and the PNCC is a quasi government entity at that time. *AJ HERMOSISIMA *Q Are you saying that this transaction was made on the basis of that P.D. which you referred to? A I am not aware of the motive of the President, but then since he is the President of the Philippines, his order was to pay the PNCC through the Office of the President, your Honor. *Q As Financial Manager, why did you allow a payment in cash when ordinarily payment of an obligation of MIAA is supposed to be paid in check? A I caused the payment through the name of Mr. Tabuena because that was the order of Mr. Tabuena and also he received an order coming from the President of the Philippines at that time, your Honor. *PJ GARCHITORENA *Q Mr. Peralta, are not Journal Vouchers merely entries in the Journals to correct certain statements of accounts earlier made in the same journal? In other words, really what you are telling us is that, a Journal Voucher is to explain a transaction was otherwise not recorded. WITNESS A Yes, your Honor. *Q Therefore, when you said that a Journal Voucher here is proper, you are saying it is proper only because of the exceptional nature of the transactions? A Yes, your Honor. *Q In other words, as an Accountant, you would not normally authorize such a movement of money unless it is properly documented? ATTY. ESTEBAL With due respect to the Honorable Presiding Justice, I think the question is misleading because what the witness stated is. . . *PJ GARCHITORENA

Be careful in your objection because the witness understands the language you are speaking, and therefore, you might be coaching him. ATTY. ESTEBAL No, your Honor. I am also an accountant that is why I could say that. . . *PJ GARCHITORENA Please be simple in your objection. ATTY. ESTEBAL The question is misleading on the ground that what the witness stated earlier is that the Journal Voucher in this particular case was supported, your Honor. *PJ GARCHITORENA Overruled, may answer. WITNESS A The transaction was fully documented since we have the order of the General Manager at that time and the order of President Marcos, your Honor. *Q Are you saying the Order of the General Manager is an adequate basis for the movement of money? A Yes, your Honor, because at that time we have also a recorded liability of P27 million. *Q we are not talking of whether or not there was a liability. What we are saying is, is the order of the General Manager by itself adequate with no other supporting papers, to justify the movement of funds? A Yes, your Honor. The order of Mr. Luis Tabuena was based on our existing liability of P27,931,000.00, inasmuch as we have that liability and I was shown the order of President Marcos to pay P5 million through the Office of the President, I considered the order of Mr. Luis Tabuena, the order of President Marcos and also the existing liability of P27 million sufficient to pay the amount of P5 million. Inasmuch as there is also an escalation clause of P99.1 million, the payment of P5 million is fully covered by those existing documents. *PJ GARCHITORENA

You keep flooding us with details we are not asking for. We are not asking you whether or not there was valid obligation. We are not asking you about the escalation clause. We are asking you whether or not this particular order of Mr. Tabuena is an adequate basis to justify the movement of funds? WITNESS When we pay, your Honor, we always look for the necessary documents and at that time I know for a fact that there was this existing liability. *PJ GARCHITORENA When we ask questions and when we answer them, we must listen to the question being asked and not to whatever you wanted to say. I know you are trying to protect yourself. We are aware of your statement that there are all of these memoranda. *Q By your disbursement of such amount, you are saying that the order of Mr. Tabuena by itself is adequate? WITNESS A As far as I am concerned, your Honor, inasmuch as we have a liability and I was shown the Order of President Marcos to pay PNCC through his office, I feel that the order of the General Manager, the order of President Marcos, and also the memorandum of Minister Ongpin are sufficient to cause the payment of P5 million. *PJ GARCHITORENA *Q This Presidential Decree which authorizes the President to transfer funds from one department to another, is this not the one that refers to the realignment of funds insofar as the Appropriation Act is concerned? WITNESS A Because at that time, your Honor, I have knowledge that the President is authorized through a Presidential Decree to transfer government funds from one office to another. *PJ GARCHITORENA *Q Under the Appropriation Act. Are payments of debts of the MIAA covered by the Appropriation Act? A I think the liability was duly recorded and appropriations to pay the amount is. . . . (interrupted)

*PJ GARCHITORENA *Q Tell me honestly, is your answer responsive to the question or are you just throwing words at us in the hope that we will forget what the question is? A No, your Honor. *Q Are you telling us that the debts incurred by MIAA ate covered by the Appropriations Act so that the payment of this debt would be in the same level as the realignment of funds authorized the President? Or are you telling as you did not read the Decree? A I was aware of that Decree, your Honor. *PJ GARCHITORENA Mr. Estebal, will you include in your memorandum what are the Decrees authorizing this movement of funds? ATTY. ESTEBAL Yes, your Honor. *PJ GARCHITORENA *Q It is true that President Marcos was the President, but he was not an officer of the MIAA, was he? A No, your Honor. *Q In fact, for purposes of internal control, you have different officers and different officials in any company either government or private, which are supposed to check and balance each other, is it not? A Yes, your Honor. *Q So that when disbursements of funds are made, they are made by authority of not only one person alone so that nobody will restrain him? A Yes, your Honor. *Q These checks and balances exist in an entity so that no one person can dispose of funds in any way he likes? A Yes, your Honor. *Q And in fact, the purpose for having two (2) signatories to documents and negotiable documents is for the same purpose?

A Yes, your Honor. *PJ GARCHITORENA *Q In other words, the co-signatories counter check each other? WITNESS A Yes, your Honor. *Q In your case, you would be the counter check for Mr. Tabuena? A Yes, your Honor. *Q In the other words, even if Mr. Tabuena is the Manager, you as Financial Services Manager and as counter signatory are in a position to tell Mr. Tabuena, "I am sorry, you are my superior but this disbursement is not proper and, therefore, I will not sign it"., if in your opinion the disbursement is not proper? A Yes, your Honor. *Q Therefore, as a co-signatory, you expected to exercise your judgment as to the propriety of a particular transactions? A Yes, your Honor. *Q And this is something you know by the nature of your position and because you are a Certified Public Accountant? A Yes, your Honor. *AJ DEL ROSARIO *Q You admit that the payment of P5 million and P50 million were unusual in the manner with which they were disposed? A Yes, your Honor. *Q Did you submit a written protest to the manner in which such amount was being disposed of? A A written protest was not made, your Honor, but I called the attention of Mr. Tabuena that since this payment was upon the order of President Marcos, then I think as President he can do things which are not ordinary. *Q If you did not prepare a written protest, did you at least prepare a memorandum for the record that this was an extra-ordinary transaction?

A I called the attention of Mr. Tabuena that this was an extra-ordinary transaction and no written note, your Honor. PJ GARCHITORENA
Thank you very much Mr. Peralta, you are excused. . . . 43

This Court has acknowledged the right of a trial judge to question witnesses with a view to satisfying his mind upon any material point which presents itself during the trial of a case over which he presides. 44 But not only should his examination be limited to asking "clarificatory" questions, 45 the right should be sparingly and judiciously used; for the rule is that the court should stay out of it as much as possible, neither interfering nor intervening in the conduct of the trial. 46 Here, these limitations were not observed. Hardly in fact can one avoid the impression that the Sandiganbayan had allied itself with, or to be more precise, had taken the cudgels for the prosecution in proving the case against Tabuena and Peralta when the Justices cross-examined the witnesses, their crossexaminations supplementing those made by Prosecutor Viernes and far exceeding the latter's questions in length. The "cold neutrality of an impartial judge" requirement of due process was certainly denied Tabuena and Peralta when the court, with its overzealousness, assumed the dual role of magistrate and advocate. In this connection, the observation made in the Dissenting Opinion to the effect that the majority of this Court was "unduly disturbed" with the number of court questions alone, is quite inaccurate. A substantial portion of the TSN was incorporated in the majority opinion not to focus on "numbers" alone, but more importantly to show that the court questions were in the interest of the prosecution and which thus depart from that common standard of fairness and impartiality. In fact, it is very difficult to be, upon review of the records, confronted with "numbers" without necessarily realizing the partiality of the Court. In "US v. De Sisto" (2 Cir., 1961, 289 F 2d 833), for example, a new trial was required because the trial judge, as in this case, indulged in extensive questioning of defendant and his witnesses, and the reviewing court also had to amplify on "numbers" to bolster this. It was pointed out in the "De Sisto" case that the judge asked 3,115 questions of all witnesses, the prosecutor asked but 1,381, defense counsel 3,330. The judge's questions to the defendant De Sisto totalled 306, the prosecutor's 347, and the defense counsel's, 201. After referring to these figures, the court stated: . . . It is indeed an impressive proportion, but no such mathematical computation is of itself determinative. However, taking all this in conjunction with the long and vigorous examination of the defendant himself by the judge, and the repeated belittling by the judge of defendant's efforts to establish the time that Fine left the pier, we fear that in its zeal for arriving at the facts the court here conveyed to the jury too strong an impression of the court's belief in the defendant's probable guilt to permit the jury freely to perform its own function of independent determination of the facts. . . . The majority believes that the interference by the Sandiganbayan Justices was just too excessive that it cannot be justified under the norm applied to a jury trial, or even under the standard employed in a non-jury trial where the judge is admittedly given more leeway in propounding questions to clarify points and to elicit additional relevant evidence. At the risk of being repetitious, we will amplify on this via some specific examples. Based on the evidence on record, and on the admission of Tabuena himself, the P55 million was delivered to the President's Office thru Mrs. Gimenez, in obedience to the Presidential directive. One Sandiganbayan Justice, however, hurled the following questions to Peralta: AJ DEL ROSARIO

Q: Since the payment was made on January 31, 1986, and that was very close to the election held in that year, did you not entertain any doubt that the amounts were being used for some other purposes? ATTY. ESTEBAL With due respect to the Honorable Justice, We are objecting to the question on the ground that it is improper. AJ DEL ROSARIO I will withdraw the question. PJ GARCHITORENA What is the ground for impropriety? ATTY. ESTEBAL This is not covered in the direct examination, and secondly, I don't think there was any basis, Your Honor. PJ GARCHITORENA Considering the withdrawal of the question, just make the objection on record. Nothing from the preceding questions of counsels or of the court would serve as basis for this question. How then, can this be considered even relevant? What is the connection between the payment made to the President's office and the then forthcoming presidential "snap election"? In another instance, consider the following questions of Presiding Justice Garchitorena: *PJ GARCHITORENA *Q Mr. Peralta, are not Journal Vouchers merely entries in the Journals to correct certain statements of accounts earlier made in the same journal? xxx xxx xxx *Q In other words, really what you are telling us is that, a Journal Voucher is to explain a transaction was otherwise not recorded. xxx xxx xxx *Q Therefore, when you said that a Journal Voucher here is proper, you are saying it is proper only because of the exceptional nature of the transactions?

xxx xxx xxx *Q In other words, as an Accountant, you would not normally authorize such a movement of money unless it is properly documented? ATTY. ESTEBAL With due respect to the Honorable Presiding Justice, I think the question is misleading because what the witness stated is . . . *PJ GARCHITORENA Be careful in your objection because the witness understands the language you are speaking, and therefore, you might be coaching him. ATTY. ESTEBAL No, your Honor. I am also an accountant that is why I could say that . .. *PJ GARCHITORENA Please be simple in your objection. ATTY. ESTEBAL The question is misleading on the ground that what the witness stated earlier is that the Journal Voucher in this particular case was supported, your Honor. *PJ GARCHITORENA Overruled may answer. WITNESS A The transaction was fully documented since we have the order of the General Manager at that time and the order of President Marcos, your Honor. *Q Are you saying the Order of the General Manager is an adequate basis for the movement of money? *Q We are not talking of whether or not there was a liability. What we are saying is, is the order of the General Manager by itself adequate with no other supporting papers, to justify the movement of funds? *PJ GARCHITORENA

You keep flooding us with details we are not asking for. We are not asking you whether or not there was valid obligation. We are not asking you about the escalation clause. We are asking you whether or not this particular order of Mr. Tabuena is an adequate basis to justify the movement of funds? *PJ GARCHITORENA When we ask questions and when we answer them, we must listen to the question being asked and not to whatever you wanted to say. I know you are trying to protect yourself. We are aware of your statement that there are all of these memoranda. *Q By your disbursement of such amount, you are saying that the order of Mr. Tabuena by itself is adequate? *PJ GARCHITORENA *Q This Presidential Decree which authorizes the President to transfer funds from one department to another, is this not the one that refers to the realignment of funds insofar as the Appropriation Act is concerned? *PJ GARCHITORENA *Q Under the Appropriation Act. Are payments of debts of the MIAA covered by the Appropriation Act? *PJ GARCHITORENA *Q Tell me honestly, is your answer responsive to the question or are you just throwing words at us in the hope that we will forget what the question is? xxx xxx xxx *Q Are you telling us that the debts incurred by MIAA are covered by the Appropriations Act so that the payment of this debt would be in the same level as the realignment of funds authorized the President? Or are you telling as you did not read the Decree? *PJ GARCHITORENA Mr. Estebal, will you include in your memorandum what are the Decrees authorizing this movement of funds? ATTY. ESTEBAL Yes, your Honor. *PJ GARCHITORENA

*Q It is true that President Marcos was the President, but he was not an officer of the MIAA, was he? *Q In fact, for purposes of internal control, you have different in officers and different officials in any company either government or private, which are supposed to check and balance each other, is it not? *Q So that when disbursements of funds are made, they are made by authority of not only one person alone so that nobody will restrain him? *Q These checks and balances exist in an entity so that no one person can dispose of funds in any way he likes? *Q And in fact, the purpose for having two (2) signatories to documents and negotiable documents is for the same purpose? *PJ GARCHITORENA *Q In other words, the co-signatories counter check each other? *Q In your case, you would be the counter check for Mr. Tabuena? *Q In other words, even if Mr. Tabuena is the Manager, you as Financial Services Manager and as counter signatory are in a position to tell Mr. Tabuena, "I am sorry, you are my superior but this disbursement is not proper and, therefore, I will not sign it.", if in your opinion the disbursement is not proper? *Q Therefore, as co-signatory, you are expected to exercise your judgment as to the propriety of a particular transaction ?
*Q And this is something you know by the nature of your position and because you are a Certified Public Accountant? 47

How can these questions be considered clarificatory when they clearly border more on cross-examination questions? Thus, the Dissenting Opinion's focus on the distinction between the two kinds of trial to justify the Sandiganbayan's active participation in the examination of petitioners Tabuena and Peralta and witness Monera, with due respect, appears insignificant to this case. Let it, therefore, be emphasized anew that:
A trial judge should not participate in the examination of witnesses as to create the impression that he is allied with the prosecution. 48 We doubt not that the sole motive of the learned judge was to ascertain the truth of the transaction, but it is never proper for a judge to discharge the duties of a prosecuting attorney. However anxious a judge may be for the enforcement of the law, he should always remember that he is as much judge in behalf of the defendant accused of crime, and whose liberty is in jeopardy, as he is judge in behalf of the state, for the purpose of safeguarding the interests of society. 49

Ordinarily it is not good practice for the presiding judge himself to examine witnesses at length. The circumstances may be such in a given case as to justify the court in so doing. . . . This court, however, has more than once said that the examination of witnesses is the more appropriate function of counsel, and the instances are rare and the conditions exceptional which will justify the presiding judge in conducting an extensive examination. It is always embarrassing for counsel to object to what he may deem improper questions by the court. Then, in conducting a lengthy examination, it would be almost impossible for the judge to preserve a judicial attitude. While he is not a mere figurehead or umpire in a trial, and it is his duty to see that justice is done, he will usually not find it necessary to conduct such examinations. The extent to which this shall be done must largely be a matter of discretion, to be determined by the circumstances of each particular case, but in so doing he must not forget the function of the judge and assume that of an advocate. . .50 While it is true that the manner in which a witness shall be examined is largely in the discretion of the trial judge, it must be understood that we have not adopted in this country the practice of making the presiding judge the chief inquisitor. It is better to observe our time-honored custom of orderly judicial procedure, even at the expense of occasional delays. . . . The judge is an important figure in the trial of a cause, and while he has the right, and it is often his duty, to question witnesses to the end that justice shall prevail, we can conceive of no other reason, for him to take the trial of the cause out of the hands of counsel. 51 The examination of witnesses is the more appropriate function of counsel, and it is believed the instances are rare and the conditions exceptional in a high degree which will justify the presiding judge in entering upon and conducting an extended examination of a witness, and that the exercise of a sound discretion will seldom deem such action necessary or advisable. 52 He [the judge] may properly intervene in a trial of a case to promote expedition, and prevent unnecessary waste of time, or to clear up some obscurity, but he should bear in mind that his undue interference, impatience, or participation in, the examination of witnesses, or a severe attitude on his part toward witnesses, especially those who are excited or terrified by the unusual circumstances of a trial, may tend to prevent the proper presentation of the cause, or the ascertainment of the truth in respect thereto. 53 The impartiality of the judge his avoidance of the appearance of becoming the advocate of either one side or the other of the pending controversy is a fundamental and essential rule of special importance in criminal cases. . . 54 Our courts, while never unmindful of their primary duty to administer justice, without fear or favor, and to dispose of these cases speedily and in as inexpensive a manner as is possible for the court and the parties, should refrain from showing any semblance of onesided or more or less partial attitude in order not to create any false impression in the minds of the litigants. For obvious reasons, it is the bounden duty of all to strive for the preservation of the people's faith in our courts. 55 Time and again this Court has declared that due process requires no less than the cold neutrality of an impartial judge. Bolstering this requirement, we have added that the judge must not only be impartial but must also appear to be impartial, to give added assurance to the parties that his decision will be just. The parties are entitled to no less than this, as a minimum guaranty of due process. 56

We are well aware of the fear entertained by some that this decision may set a dangerous precedent in that those guilty of enriching themselves at the expense of the public would be able to escape criminal liability by the mere expedient of invoking "good faith". It must never be forgotten, however, that we render justice on a case to case basis, always in consideration of the evidence that is presented. Thus, where the evidence warrants an acquittal, as in this case, we are mandated not only by the dictates of law but likewise of conscience to grant the same. On the other hand, it does not follow that all those similarly accused will necessarily be acquitted upon reliance on this case as a precedent. For the decision in this case to be a precedent, the peculiar circumstances and the evidence that led to the petitioner's acquittal must also be present in subsequent cases. Furthermore, as between a mere apprehension of a "dangerous precedent" and an actual violation of constitutionally enshrined rights, it is definitely the latter that merits our immediate attention. For the most dangerous precedent arises when we allow ourselves to be carried away by such fears so that it becomes lawful to sacrifice the rights of an accused to calm the fearful. In our eagerness to bring to justice the malefactors of the Marcos regime, we must not succumb to the temptation to commit the greatest injustice of visiting the sins of the wrongdoers upon an innocent. WHEREFORE, in view of the foregoing, herein petitioners Luis A. Tabuena and Adolfo M. Peralta are hereby ACQUITTED of the crime of malversation as defined and penalized under Article 217 of the Revised Penal Code. The Sandiganbayan Decision of October 12, 1990 and the Resolution dated December 20, 1991 are REVERSED and SET ASIDE. SO ORDERED. Narvasa, C.J., Vitug, Kapunan and Mendoza, JJ., cocnur. Regalado, Bellosillo, and Torres, Jr., JJ., pro hac vice. Hermosisima, Jr,., J., took no part.

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. L-37762 December 19, 1985 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. EDUARDO B. NERI defendant-appellant.

CONCEPCION, JR., J.: Eduardo B. Neri was charged with the crime of Illegal Possession of Firearm and after trial, the City Court of Cagayan de Oro found him guilty thereof. The dispositive portion of the decision reads as follows: IN VIEW OF THE FOREGOING CONSIDERATIONS, this Court finds the accused Eduardo B. Neri guilty beyond reasonable doubt of the crime of Illegal Possession of Firearm as defined and penalized under Sec. 878 in relation to Sec. 2692 of the Revised Administrative Code, as amended by Republic Act No. 4, and sentences him to I year and 1 day of imprisonment and to pay a fine of Pl,000.00, in case of insolvency to suffer the corresponding subsidiary imprisonment at the rate of P8.00 a day but in no case shall exceed 1/3 of the principal penalty and the accessory penalties of the law and to pay the costs. Exh. 'A', revolver, Colt. Cal. 38 bearing Serial No. 898685 and Exhs. 'B', 'B-1, 'B-2' and 'B-3' four live ammunitions Cal. 38 are hereby ordered confiscated in favor of the government. After this judgment has become final, the City Clerk of Court is hereby ordered to deposit and deliver the revolver Exh. 'A' and the four rounds of live ammunitions Cal. 38 Exhs. 'B', 'B-l', 'B-2' and 'B3' to the Provincial Commander of Misamis Oriental properly receipt. 'Thereafter, the receipt must be attached to the record of this case and shall form part of the record. From this judgment, the accused appealed, raising the issue of "whether the accused, Eduardo B. Neri, can carry the above-described firearm without license except the one issued to him by the Provincial Governor on January 16, 1970, marked as Exh. '3' and a Special Permit issued by the Provincial Commander marked as Exh '4' without violating the provisions of the Revised Administrative Code." The fact that the firearm in question was issued to the accused by the Provincial Governor of Lanao del Norte to be used in the performance of his duties as Deputy Governor and that the accused had been issued a permit by the Acting PC Provincial Commander to carry said firearm outside his residence is not a valid defense in this case. We cite with approval the following findings of the trial court:

It is to be noted that Sec. 879 of Article IV, supra, speaks of exceptions as to firearm issued to officers. Officials and employees of the government who are allowed to possess firearm for use in the performance of their official duties without incurring criminal responsibility, but nowhere among the officers, officials and employees listed thereon could be found the Deputy Governor: hence, the accused does not fall within the exception. It is true that the accused was granted permit by the acting provincial commander of the Lanao del Norte to carry firearm outside his residence as shown in Exh. '4'. Now, may we ask, is this the permit contemplated under Sec. 881 of Article IV of the Revised Administrative Code, as amended, which exempts the possessor thereof from criminal responsibility? The aforementioned section reads as follows: Sec. 881Special permit for possession of arms by civil employees.The chief of any Bureau of the National Government may apply to the President of the Philippines for a special permit for any subordinate official or employee of the Bureau to possess firearms and ammunition for personal protection in the performance of his duties as such official or employee, and the President of the Philippines may issue, or cause to be issued, such special permission under such terms and conditions as he may deem proper. The above-quoted law is clear. It refers to special permit which the President of the Philippines may issue or cause to be issued to any subordinate official or employee of any Bureau of the National Government upon application of the Chief of the Bureau, under such terms and conditions as the President may deem proper. It is evident that the permit granted to the accused by the Acting Provincial Commander of Lanao del Norte to carry firearm outside residence, Exh. 4' is not the permit referred to under said Sec. 881. Moreover, the revolver Exh. 'A', a homemade firearm commonly known as 'paltik', the manufacture and/or possession of which is explicitly prohibited by law (Sec. 878,supra) and, therefore, it cannot be the object of a proper license or special permit, otherwise it would defeat the very purpose of the law. Neither the provincial governor nor the provincial commander could legalize an act which is per se illegal. Much less, this Court could sanction violations of law committed, wittingly or unwittingly, by public officials. To do so, it would tantamount in abetting the proliferation of infractions of law. The accused being a deputy governor ought to know that an act which is illegal per se cannot be given a semblance of legality either by the provincial governor or the provincial commander. 'Ignorance of the law excuses no one from compliance therewith' (Art. 3, Civil Code). The fact that the accused has a permit to carry firearm outside his residence is immaterial in the case at bar since the essence of the crime of illegal possession of firearm is the lack of the proper license or special permit to possess firearm issued in accordance with law. The herein accused, therefore, cannot seek protection under the mantle of said permit Exh. '4' which was issued beyond the pale of law. At most, said permit may be considered as mitigating circumstance in his favor. The appellant relies upon the decision of the Court of Appeals in the case of People vs. Asa, 1 where members of a civilian guard organization were acquitted because they had no intention to commit the offense charged and believed in good faith that, as civilian guards, they could possess firearms issued by the head of the civilian guard organization. Good faith and absence of criminal intent, however, are not valid defenses since the offense committed is malum prohibitum punished by special law,

It is well to note in this connection that the doctrine enunciated in the case of People vs. Macarandang, 2 that the appointment of a civilian as secret agent to assist in the maintenance of peace and order campaign and detection of crimes sufficiently puts him in the category of a "peace officer" equivalent even to a member of the municipal police expressly covered by section 879 of the Revised Administrative Code so that he incurs no criminal liability for possession of firearms issued to him by the governor, has been revoked in the case of People vs. Mapa. 3 WHEREFORE, the judgment should be, as it is hereby. AFFIRMED. With costs against the appellant. IT IS SO ORDERED. Escolin, Cuevas and Alampay, JJ., concur. Abad Santos, J., concur in the result.

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION

G.R. No. L-30801 March 27, 1974 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. DOMINGO URAL, accused-appellant. Office of the Solicitor General Felix Q. Antonio, Assistant Solicitor General Antonio A. Torres and Solicitor Vicente P. Evangelista for plaintiff-appellee. Vicente Cerilles and Emeliano Deleverio for accused-appellant.

AQUINO, J.:p This is an appeal of defendant Domingo Ural from the decision of Judge Vicente G. Ericta of the Court of First Instance of Zamboanga del Sur, convicting him of murder, sentencing him to reclusion perpetua, and ordering him to indemnify the heirs of Felix Napola in the sum of twelve thousand pesos and to pay the costs (Criminal Case No. 3280). The judgment of conviction was based on the testimony of Brigido Alberto, a twenty-six year old former detention prisoner in Buug, Zamboanga del Sur. He had been accused of murder and then set at liberty on June 9, 1966 after posting bail. He went to Barrio Camongo, Dumalinao where his father resided. On July 31, 1966, he intended to go to his residence at Barrio Upper Lamari, Buug but night overtook him in the town. He decided to sleep in the Buug municipal building where there would be more security. Upon arrival in the municipal building at around eight o'clock, he witnessed an extraordinary occurrence. He saw Policeman Ural (with whom he was already acquainted) inside the jail. Ural was boxing the detention prisoner, Felix Napola. As a consequence of the fistic blows, Napola collapsed on the floor. Ural, the tormentor, stepped on his prostrate body. Ural went out of the cell. After a short interval, he returned with a bottle. He poured its contents on Napola's recumbent body. Then, he ignited it with a match and left the cell. Napola screamed in agony. He shouted for help. Nobody came to succor him. Much perturbed by the barbarity which he had just seen, Alberto left the municipal building. Before his departure, Ural cautioned him: "You better keep quiet of what I have done" (sic). Alberto did not sleep anymore that night. From the municipal building, he went to the crossing, where the cargo trucks passed. He hitchhiked in a truck hauling iron ore and went home. Doctor Luzonia R. Bakil, the municipal health officer, certified that the thirty-year old victim, whom she treated twice, sustained second-degree burns on the arms, neck, left side of the face and one-

half of the body including the back (Exh. A). She testified that his dermis and epidermis were burned. If the burns were not properly treated, death would unsue from toxemia and tetanus infection. "Without any medical intervention", the burns would cause death", she said. She explained that, because there was water in the burnt area, secondary infection would set in, or there would be complications. Napola died on August 25, 1966. The sanitary inspector issued a certificate of death indicating "burn" as the cause of death (Exh. B). The trial court fittingly deplored the half-hearted manner in which the prosecution (represented by Fiscal Roque and the private prosecutor, Delfin Agbu) handled the case. It bewailed the prosecution's failure to present as witnesses Juanito de la Serna and Ernesto Ogoc, the detention prisoners who saw the burning of Napola. They had executed a joint affidavit which was one of the bases of the information for murder. 1 It noted that Rufina Paler, the victim's widow, who was present in court, was a vital witness who should have been presented as a witness to prove the victim's dying declaration or his statements which were part of the res gestae. 2 In this appeal appellant's three assignment of error may be condensed into the issue of credibility or the sufficiency of the prosecution's evidence to prove his guilt beyond reasonable doubt. His story is that at around nine o'clock in the evening of July 31, 1966 he was in the municipal jail on guard duty. He heard a scream for help from Napola. He entered the cell and found Napola's shirt in flames. With the assistance of Ernesto Ogoc and Anecio Siton, Ural removed Napola's shirt. Ural did not summon a doctor because, according to Napola, the burns were not serious. Besides, he (Ural) was alone in the municipal building. Felicisima Escareal, Ogoc's common-law wife, whom the trial court branded "as a complete liar", testified that she heard Napola's scream for help. She saw that Napola's shirt was burning but she did not know how it happened to be burned. She said that Ural and Siton removed the shirt of Napola and put out the fire. Teofilo Matugas, a policeman, declared that he was relieved as guard by Ural at eight-thirty in the evening of July 31st. Matugas denied that Alberio was in the municipal building at eight o'clock. The trial court held that Ural's denials cannot prevail over the positive testimony of Alberio. It observed that Ural's alleged act of removing Napola's burning shirt was at most an indication that he was "belatedly alarmed by the consequence of his evil act" but would not mean that he was not the incendiary. Appellant Ural (he was thirty-four years old in March, 1969), in assailing the credibility of Alberio, pointed out that he was not listed as a prosecution witness and that he was convicted of murder. Those circumstances would not preclude Alberio from being a credible witness. It should be noted that the accused was a policeman. Ordinarily, a crime should be investigated by the police. In this case, there was no police investigation. The crime was investigated by a special counsel of the fiscal's office. That might explain why it was not immediately discovered that Alberio was an eyewitness of the atrocity perpetrated by Ural.

The testimonies of Felicisima Escareal, Ogoc's common-law wife, and Policeman Matugas are compatible with the prosecution's theory that Ural burned Napola's shirt. Ultimately, the factual issue is: who should be given credence, Alberio or Ural? As already stated, the trial court which had the advantage of seeing their demeanor and behavior on the witness stand, chose to believe Alberio. This Court, after a searching scrutiny of the whole record, does not find any justification for disbelieving Alberio. This case is covered by article 4 of the Revised Penal code which provides that "criminal liability shall be incurred by any person committing a felony (delito) although the wrongful act done be different from that which he intended". The presumption is "that a person intends the ordinary consequences of his voluntary act" (Sec. 5[c], Rule 131, Rules of Court). The rationale of the rule in article 4 is found in the doctrine that "el que es causa de la causa es causa del mal causado" (he who is the cause of the cause is the cause of the evil caused)."Conforme a dicha doctrina no alteran la relacion de causalidad las condiciones preexistentes (como las condiciones patologicasdel lesionado, la predisposicion del ofendido, la constitucion fisica del herido, etc.); ni las condiciones sobrevenidas (como el tetanos, la pulmonia, o la gangrena sobrevenidos a consequencia de la herida)" (1 Cuello Calon, Codigo Penal, 12th Ed., 1968, p. 335-336). The similar rule in American jurisprudence is that "if the act of the accused was the cause of the cause of death, no more is required" (40 C.J.S. 854). So, where during a quarrel, the accused struck the victim with a lighted lamp, which broke and fell to the floor, causing the oil to ignite and set fire to the rug, and, in the course of the scuffle, which ensued on the floor, the victim's clothes caught fire, resulting in burns from which he died, there was a sufficient causal relation between the death and the acts of the accused to warrant a conviction of homicide (Williams vs. U.S., 20 Fed. 2nd 269, 40 C.J.S. 854, note 90). There is a rule that "an individual who unlawfully inflicts wounds upon another person, which result in the death of the latter, is guilty of the crime of homicide, and the fact that the injured person did not receive proper medical attendance does not affect the criminal responsibility" (U.S. vs. Escalona, 12 Phil. 54). In the Escalona case, the victim was wounded on the wrist. It would not have caused death had it been properly treated. The victim died sixty days after the infliction of the wound. It was held that lack of medical care could not be attributed to the wounded man. The person who inflicted the wound was responsible for the result thereof. The crime committed by appellant Ural was murder by means of fire (incendio) (Par. 3, Art. 248, Revised Penal Code; People vs. Masin, 64 Phil. 757; U.S. vs. Burns, 41 Phil. 418, 432, 440). 3 The trial court correctly held that the accused took advantage of his public position (Par. 1, Art. 14, Revised Penal Code). He could not have maltreated Napola if he was not a policeman on guard duty. Because of his position, he had access to the cell where Napola was confined. The prisoner was under his custody. "The policeman, who taking advantage of his public position maltreats a private citizen, merits no judicial leniency. The methods sanctioned by medieval practice are surely not appropriate for an enlightened democratic civilization. While the law protects the police officer in the proper discharge of his duties, it must at the same time just as effectively protect the individual from the abuse of the police." U.S. vs. Pabalan, 37 Phil. 352). But the trial court failed to appreciate the mitigating circumstance "that the offender had no intention to commit so grave a wrong as that committed" (Par. 3, Art. 13, Revised Penal Code). It is manifest from the proven facts that appellant Ural had no intent to kill Napola. His design was only to maltreat him may be because in his drunken condition he was making a nuisance of himself inside the

detention cell. When Ural realized the fearful consequences of his felonious act, he allowed Napola to secure medical treatment at the municipal dispensary. Lack of intent to commit so grave a wrong offsets the generic aggravating, circumstance of abuse of his official position. The trial court properly imposed the penalty of reclusion perpetua which is the medium period of the penalty for murder (Arts. 64[4] and 248, Revised Penal Code). Finding no error in the trial court's judgment, the same is affirmed with costs against the appellant. So ordered. Zaldivar (Chairman) and Fernandez, JJ., concur. Antonio, J., took no part.

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 72964 January 7, 1988 FILOMENO URBANO, petitioner, vs. HON. INTERMEDIATE APPELLATE COURT AND PEOPLE OF THE PHILIPPINES, respondents.

GUTIERREZ, JR., J.: This is a petition to review the decision of the then Intermediate Appellate Court which affirmed the decision of the then Circuit Criminal Court of Dagupan City finding petitioner Filomeno Urban guilty beyond reasonable doubt of the crime of homicide. The records disclose the following facts of the case. At about 8:00 o'clock in the morning of October 23, 1980, petitioner Filomeno Urbano went to his ricefield at Barangay Anonang, San Fabian, Pangasinan located at about 100 meters from the tobacco seedbed of Marcelo Javier. He found the place where he stored his palay flooded with water coming from the irrigation canal nearby which had overflowed. Urbano went to the elevated portion of the canal to see what happened and there he saw Marcelo Javier and Emilio Erfe cutting grass. He asked them who was responsible for the opening of the irrigation canal and Javier admitted that he was the one. Urbano then got angry and demanded that Javier pay for his soaked palay. A quarrel between them ensued. Urbano unsheathed his bolo (about 2 feet long, including the handle, by 2 inches wide) and hacked Javier hitting him on the right palm of his hand, which was used in parrying the bolo hack. Javier who was then unarmed ran away from Urbano but was overtaken by Urbano who hacked him again hitting Javier on the left leg with the back portion of said bolo, causing a swelling on said leg. When Urbano tried to hack and inflict further injury, his daughter embraced and prevented him from hacking Javier. Immediately thereafter, Antonio Erfe, Emilio Erfe, and Felipe Erfe brought Javier to his house about 50 meters away from where the incident happened. Emilio then went to the house of Barangay Captain Menardo Soliven but not finding him there, Emilio looked for barrio councilman Felipe Solis instead. Upon the advice of Solis, the Erfes together with Javier went to the police station of San Fabian to report the incident. As suggested by Corporal Torio, Javier was brought to a physician. The group went to Dr. Guillermo Padilla, rural health physician of San Fabian, who did not attend to Javier but instead suggested that they go to Dr. Mario Meneses because Padilla had no available medicine. After Javier was treated by Dr. Meneses, he and his companions returned to Dr. Guillermo Padilla who conducted a medico-legal examination. Dr. Padilla issued a medico-legal certificate (Exhibit "C" dated September 28, 1981) which reads: TO WHOM IT MAY CONCERN:

This is to certify that I have examined the wound of Marcelo Javier, 20 years of age, married, residing at Barangay Anonang, San Fabian, Pangasinan on October 23, 1980 and found the following: 1 -Incised wound 2 inches in length at the upper portion of the lesser palmar prominence, right. As to my observation the incapacitation is from (7-9) days period. This wound was presented to me only for medico-legal examination, as it was already treated by the other doctor. (p. 88, Original Records) Upon the intercession of Councilman Solis, Urbano and Javier agreed to settle their differences. Urbano promised to pay P700.00 for the medical expenses of Javier. Hence, on October 27, 1980, the two accompanied by Solis appeared before the San Fabian Police to formalize their amicable settlement. Patrolman Torio recorded the event in the police blotter (Exhibit A), to wit: xxx xxx xxx Entry Nr 599/27 Oct '80/103OH/ Re entry Nr 592 on page 257 both parties appeared before this Station accompanied by brgy. councilman Felipe Solis and settled their case amicably, for they are neighbors and close relatives to each other. Marcelo Javier accepted and granted forgiveness to Filomeno Urbano who shoulder (sic) all the expenses in his medical treatment, and promising to him and to this Office that this will never be repeated anymore and not to harbour any grudge against each other. (p. 87, Original Records.) Urbano advanced P400.00 to Javier at the police station. On November 3, 1980, the additional P300.00 was given to Javier at Urbano's house in the presence of barangay captain Soliven. At about 1:30 a.m. on November 14, 1980, Javier was rushed to the Nazareth General Hospital in a very serious condition. When admitted to the hospital, Javier had lockjaw and was having convulsions. Dr. Edmundo Exconde who personally attended to Javier found that the latter's serious condition was caused by tetanus toxin. He noticed the presence of a healing wound in Javier's palm which could have been infected by tetanus. On November 15, 1980 at exactly 4:18 p.m., Javier died in the hospital. The medical findings of Dr. Exconde are as follows: Date Diagnosis 11-14-80 ADMITTED due to trismus adm. at DX TETANUS 1:30 AM Still having frequent muscle spasm. With diffi#35, 421 culty opening his mouth. Restless at times. Febrile 11-15-80 Referred. Novaldin 1 amp. inj. IM. Sudden cessation of respiration and HR after muscular spasm.

02 inhalation administered. Ambo bag resuscitation and cardiac massage done but to no avail. Pronounced dead by Dra. Cabugao at 4:18 P.M. PMC done and cadaver brought home by relatives. (p. 100, Original Records) In an information dated April 10, 1981, Filomeno Urbano was charged with the crime of homicide before the then Circuit Criminal Court of Dagupan City, Third Judicial District. Upon arraignment, Urbano pleaded "not guilty." After trial, the trial court found Urbano guilty as charged. He was sentenced to suffer an indeterminate prison term of from TWELVE (12) YEARS of prision mayor, as minimum to SEVENTEEN (17) years, FOUR (4) MONTHS and ONE (1) DAY of reclusion temporal, as maximum, together with the accessories of the law, to indemnify the heirs of the victim, Marcelo Javier, in the amount of P12,000.00 without subsidiary imprisonment in case of insolvency, and to pay the costs. He was ordered confined at the New Bilibid Prison, in Muntinlupa, Rizal upon finality of the decision, in view of the nature of his penalty. The then Intermediate Appellate Court affirmed the conviction of Urbano on appeal but raised the award of indemnity to the heirs of the deceased to P30,000.00 with costs against the appellant. The appellant filed a motion for reconsideration and/or new trial. The motion for new trial was based on an affidavit of Barangay Captain Menardo Soliven (Annex "A") which states: That in 1980, I was the barrio captain of Barrio Anonang, San Fabian, Pangasinan, and up to the present having been re-elected to such position in the last barangay elections on May 17, 1982; That sometime in the first week of November, 1980, there was a typhoon that swept Pangasinan and other places of Central Luzon including San Fabian, a town of said province; That during the typhoon, the sluice or control gates of the Bued irrigation dam which irrigates the ricefields of San Fabian were closed and/or controlled so much so that water and its flow to the canals and ditches were regulated and reduced; That due to the locking of the sluice or control gates of the dam leading to the canals and ditches which will bring water to the ricefields, the water in said canals and ditches became shallow which was suitable for catching mudfishes; That after the storm, I conducted a personal survey in the area affected, with my secretary Perfecto Jaravata; That on November 5, 1980, while I was conducting survey, I saw the late Marcelo Javier catching fish in the shallow irrigation canals with some companions; That few days there after,or on November l5, l980, I came to know that said Marcelo Javier died of tetanus. (p. 33, Rollo) The motion was denied. Hence, this petition.

In a resolution dated July 16, 1986, we gave due course to the petition. The case involves the application of Article 4 of the Revised Penal Code which provides that "Criminal liability shall be incurred: (1) By any person committing a felony (delito) although the wrongful act done be different from that which he intended ..." Pursuant to this provision "an accused is criminally responsible for acts committed by him in violation of law and for all the natural and logical consequences resulting therefrom." (People v. Cardenas, 56 SCRA 631). The record is clear that Marcelo Javier was hacked by the petitioner who used a bolo as a result of which Javier suffered a 2-inch incised wound on his right palm; that on November 14, 1981 which was the 22nd day after the incident, Javier was rushed to the hospital in a very serious condition and that on the following day, November 15, 1981, he died from tetanus. Under these circumstances, the lower courts ruled that Javier's death was the natural and logical consequence of Urbano's unlawful act. Hence, he was declared responsible for Javier's death. Thus, the appellate court said: The claim of appellant that there was an efficient cause which supervened from the time the deceased was wounded to the time of his death, which covers a period of 23 days does not deserve serious consideration. True, that the deceased did not die right away from his wound, but the cause of his death was due to said wound which was inflicted by the appellant. Said wound which was in the process of healing got infected with tetanus which ultimately caused his death. Dr. Edmundo Exconde of the Nazareth General Hospital testified that the victim suffered lockjaw because of the infection of the wound with tetanus. And there is no other way by which he could be infected with tetanus except through the wound in his palm (tsn., p. 78, Oct. 5, 1981). Consequently, the proximate cause of the victim's death was the wound which got infected with tetanus. And the settled rule in this jurisdiction is that an accused is liable for all the consequences of his unlawful act. (Article 4, par. 1, R.P.C. People v. Red, CA 43 O.G. 5072; People v. Cornel 78 Phil. 418). Appellant's allegation that the proximate cause of the victim's death was due to his own negligence in going back to work without his wound being properly healed, and lately, that he went to catch fish in dirty irrigation canals in the first week of November, 1980, is an afterthought, and a desperate attempt by appellant to wiggle out of the predicament he found himself in. If the wound had not yet healed, it is impossible to conceive that the deceased would be reckless enough to work with a disabled hand. (pp. 20-21, Rollo) The petitioner reiterates his position that the proximate cause of the death of Marcelo Javier was due to his own negligence, that Dr. Mario Meneses found no tetanus in the injury, and that Javier got infected with tetanus when after two weeks he returned to his farm and tended his tobacco plants with his bare hands exposing the wound to harmful elements like tetanus germs. The evidence on record does not clearly show that the wound inflicted by Urbano was infected with tetanus at the time of the infliction of the wound. The evidence merely confirms that the wound, which was already healing at the time Javier suffered the symptoms of the fatal ailment, somehow got infected with tetanus However, as to when the wound was infected is not clear from the record.

In Vda. de Bataclan, et al. v. Medina (102 Phil. 1181), we adopted the following definition of proximate cause: xxx xxx xxx ... A satisfactory definition of proximate cause is found in Volume 38, pages 695-696 of American Jurisprudence, cited by plaintiffs-appellants in their brief. It is as follows: ... "that cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred."And more comprehensively, "the proximate legal cause is that acting first and producing the injury, either immediately or by setting other events in motion, all constituting a natural and continuous chain of events, each having a close causal connection with its immediate predecessor, the final event in the chain immediately effecting the injury as a natural and probable result of the cause which first acted, under such circumstances that the person responsible for the first event should, as an ordinarily prudent and intelligent person, have reasonable ground to expect at the moment of his act or default that an injury to some person might probably result therefrom." (at pp. 185-186) The issue, therefore, hinges on whether or not there was an efficient intervening cause from the time Javier was wounded until his death which would exculpate Urbano from any liability for Javier's death. We look into the nature of tetanusThe incubation period of tetanus, i.e., the time between injury and the appearance of unmistakable symptoms, ranges from 2 to 56 days. However, over 80 percent of patients become symptomatic within 14 days. A short incubation period indicates severe disease, and when symptoms occur within 2 or 3 days of injury the mortality rate approaches 100 percent. Non-specific premonitory symptoms such as restlessness, irritability, and headache are encountered occasionally, but the commonest presenting complaints are pain and stiffness in the jaw, abdomen, or back and difficulty swallowing. As the progresses, stiffness gives way to rigidity, and patients often complain of difficulty opening their mouths. In fact, trismus in the commonest manifestation of tetanus and is responsible for the familiar descriptive name of lockjaw. As more muscles are involved, rigidity becomes generalized, and sustained contractions called risus sardonicus. The intensity and sequence of muscle involvement is quite variable. In a small proportion of patients, only local signs and symptoms develop in the region of the injury. In the vast majority, however, most muscles are involved to some degree, and the signs and symptoms encountered depend upon the major muscle groups affected. Reflex spasm usually occur within 24 to 72 hours of the first symptom, an interval referred to as the onset time. As in the case of the incubation period, a short onset time is associated with a poor prognosis. Spasms are caused by sudden intensification of afferent stimuli arising in the periphery, which increases rigidity and causes simultaneous and excessive contraction of muscles and their antagonists. Spasms may be both painful and dangerous. As the disease progresses, minimal or inapparent stimuli produce more intense and longer lasting spasms with increasing

frequency. Respiration may be impaired by laryngospasm or tonic contraction of respiratory muscles which prevent adequate ventilation. Hypoxia may then lead to irreversible central nervous system damage and death. Mild tetanus is characterized by an incubation period of at least 14 days and an onset time of more than 6 days. Trismus is usually present, but dysphagia is absent and generalized spasms are brief and mild. Moderately severe tetanus has a somewhat shorter incubation period and onset time; trismus is marked, dysphagia and generalized rigidity are present, but ventilation remains adequate even during spasms. The criteria for severe tetanus include a short incubation time, and an onset time of 72 hrs., or less, severe trismus, dysphagia and rigidity and frequent prolonged, generalized convulsive spasms. (Harrison's Principle of Internal Medicine, 1983 Edition, pp. 1004-1005; Emphasis supplied) Therefore, medically speaking, the reaction to tetanus found inside a man's body depends on the incubation period of the disease. In the case at bar, Javier suffered a 2-inch incised wound on his right palm when he parried the bolo which Urbano used in hacking him. This incident took place on October 23, 1980. After 22 days, or on November 14, 1980, he suffered the symptoms of tetanus, like lockjaw and muscle spasms. The following day, November 15, 1980, he died. If, therefore, the wound of Javier inflicted by the appellant was already infected by tetanus germs at the time, it is more medically probable that Javier should have been infected with only a mild cause of tetanus because the symptoms of tetanus appeared on the 22nd day after the hacking incident or more than 14 days after the infliction of the wound. Therefore, the onset time should have been more than six days. Javier, however, died on the second day from the onset time. The more credible conclusion is that at the time Javier's wound was inflicted by the appellant, the severe form of tetanus that killed him was not yet present. Consequently, Javier's wound could have been infected with tetanus after the hacking incident. Considering the circumstance surrounding Javier's death, his wound could have been infected by tetanus 2 or 3 or a few but not 20 to 22 days before he died. The rule is that the death of the victim must be the direct, natural, and logical consequence of the wounds inflicted upon him by the accused. (People v. Cardenas, supra) And since we are dealing with a criminal conviction, the proof that the accused caused the victim's death must convince a rational mind beyond reasonable doubt. The medical findings, however, lead us to a distinct possibility that the infection of the wound by tetanus was an efficient intervening cause later or between the time Javier was wounded to the time of his death. The infection was, therefore, distinct and foreign to the crime. (People v. Rellin, 77 Phil. 1038). Doubts are present. There is a likelihood that the wound was but the remote cause and its subsequent infection, for failure to take necessary precautions, with tetanus may have been the proximate cause of Javier's death with which the petitioner had nothing to do. As we ruled in Manila Electric Co. v. Remoquillo, et al. (99 Phil. 118). "A prior and remote cause cannot be made the be of an action if such remote cause did nothing more than furnish the condition or give rise to the occasion by which the injury was made possible, if there intervened between such prior or remote cause and the injury a distinct, successive, unrelated, and efficient cause of the injury, even though such injury would not have happened but for such condition or occasion. If no danger existed in the condition except because of the independent cause, such condition was not the proximate cause. And if an independent negligent act or

defective condition sets into operation the instances which result in injury because of the prior defective condition, such subsequent act or condition is the proximate cause." (45 C.J. pp. 931-932). (at p. 125) It strains the judicial mind to allow a clear aggressor to go scot free of criminal liability. At the very least, the records show he is guilty of inflicting slight physical injuries. However, the petitioner's criminal liability in this respect was wiped out by the victim's own act. After the hacking incident, Urbano and Javier used the facilities of barangay mediators to effect a compromise agreement where Javier forgave Urbano while Urbano defrayed the medical expenses of Javier. This settlement of minor offenses is allowed under the express provisions of Presidential Decree G.R. No. 1508, Section 2(3). (See also People v. Caruncho, 127 SCRA 16). We must stress, however, that our discussion of proximate cause and remote cause is limited to the criminal aspects of this rather unusual case. It does not necessarily follow that the petitioner is also free of civil liability. The well-settled doctrine is that a person, while not criminally liable, may still be civilly liable. Thus, in the recent case ofPeople v. Rogelio Ligon y Tria, et al. (G.R. No. 74041, July 29, 1987), we said: xxx xxx xxx ... While the guilt of the accused in a criminal prosecution must be established beyond reasonable doubt, only a preponderance of evidence is required in a civil action for damages. (Article 29, Civil Code). The judgment of acquittal extinguishes the civil liability of the accused only when it includes a declaration that the facts from which the civil liability might arise did not exist. (Padilla v. Court of Appeals, 129 SCRA 559). The reason for the provisions of article 29 of the Civil Code, which provides that the acquittal of the accused on the ground that his guilt has not been proved beyond reasonable doubt does not necessarily exempt him from civil liability for the same act or omission, has been explained by the Code Commission as follows: The old rule that the acquittal of the accused in a criminal case also releases him from civil liability is one of the most serious flaws in the Philippine legal system. It has given use to numberless instances of miscarriage of justice, where the acquittal was due to a reasonable doubt in the mind of the court as to the guilt of the accused. The reasoning followed is that inasmuch as the civil responsibility is derived from the criminal offense, when the latter is not proved, civil liability cannot be demanded. This is one of those causes where confused thinking leads to unfortunate and deplorable consequences. Such reasoning fails to draw a clear line of demarcation between criminal liability and civil responsibility, and to determine the logical result of the distinction. The two liabilities are separate and distinct from each other. One affects the social order and the other, private rights. One is for the punishment or correction of the offender while the other is for reparation of damages suffered by the aggrieved party. The two responsibilities are so different from each other that article 1813 of the present (Spanish) Civil Code reads thus: "There may be a compromise upon the civil action arising from a crime; but the public

action for the imposition of the legal penalty shall not thereby be extinguished." It is just and proper that, for the purposes of the imprisonment of or fine upon the accused, the offense should be proved beyond reasonable doubt. But for the purpose of indemnity the complaining party, why should the offense also be proved beyond reasonable doubt? Is not the invasion or violation of every private right to be proved only by a preponderance of evidence? Is the right of the aggrieved person any less private because the wrongful act is also punishable by the criminal law? "For these reasons, the Commission recommends the adoption of the reform under discussion. It will correct a serious defect in our law. It will close up an inexhaustible source of injustice-a cause for disillusionment on the part of the innumerable persons injured or wronged." The respondent court increased the P12,000.00 indemnification imposed by the trial court to P30,000.00. However, since the indemnification was based solely on the finding of guilt beyond reasonable doubt in the homicide case, the civil liability of the petitioner was not thoroughly examined. This aspect of the case calls for fuller development if the heirs of the victim are so minded. WHEREFORE, the instant petition is hereby GRANTED. The questioned decision of the then Intermediate Appellate Court, now Court of Appeals, is REVERSED and SET ASIDE. The petitioner is ACQUITTED of the crime of homicide. Costs de oficio. SO ORDERED. Fernan, (Chairman), Feliciano, Bidin and,Cortes, JJ., concur.

EN BANC [G.R. No. L-8328. May 18, 1956.] MANILA ELECTRIC COMPANY, Petitioner, vs. SOTERO REMOQUILLO, in his own behalf and as guardian of the minors MANUEL, BENJAMIN, NESTOR, MILAGROS, CORAZON, CLEMENTE and AURORA, all surnamed MAGNO, SALUD MAGNO, and the COURT OF APPEALS (Second Division), Respondents.

DECISION MONTEMAYOR, J.: On August 22, 1950, Efren Magno went to the 3-story house of Antonio Pealoza, his stepbrother, located on Rodriguez Lanuza Street, Manila, to repair a media agua said to be in a leaking condition. The media agua was just below the window of the third story. Standing on said media agua, Magno received from his son thru that window a 3 X 6 galvanized iron sheet to cover the leaking portion, turned around and in doing so the lower end of the iron sheet came into contact with the electric wire of the Manila Electric Company (later referred to as the Company) strung parallel to the edge of the media agua and 2 1/2 feet from it, causing his death by electrocution. His widow and children fled suit to recover damages from the company. After hearing, the trial court rendered judgment in their favor P10,000 as compensatory damages; P784 as actual damages; P2,000 as moral and exemplary damages; and P3,000 as attorneys fees, with costs. On appeal to the Court of Appeals, the latter affirmed the judgment with slight modification by reducing the attorneys fees from P3,000 to P1,000 with costs. The electric company has appealed said decision to us.
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The findings of fact made by the Court of Appeals which are conclusive are stated in the following portions of its decision which we reproduce below:
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The electric wire in question was an exposed, uninsulated primary wire stretched between poles on the street and carrying a charge of 3,600 volts. It was installed there some two years before Pealozas house was constructed. The record shows that during the construction of said house a similar incident took place, although fortunate]y with much less tragic consequences. A piece of wood which a carpenter was holding happened to come in contact with the same wire, producing some sparks. The owner of the house forthwith complained toDefendant about the danger which the wire presented, and as a result Defendant moved one end of the wire farther from the house by means of a brace, but left the other end where it was. At any rate, as revealed by the ocular inspection of the premises ordered by the trial court, the distance from the electric wire to the edge of the media agua on which the deceased was making repairs was only 30 inches or 2 1/2 feet. Regulations of the City of Manila required that all wires be kept three feet from the building. Appellant contends that in applying said

regulations to the case at bar the reckoning should not be from the edge of the media agua but from the side of the house and that, thus measured, the distance was almost 7 feet, or more then the minimum prescribed. This contention is manifestly groundless, for not only is a media agua an integral part of the building to which it is attached but to exclude it in measuring the distance would defeat the purpose of the regulation. Appellant points out, nevertheless, that even assuming that the distance, within the meaning of the city regulations, should be measured from the edge of the media agua, the fact that in the case of the house involved herein such distance was actually less than 3 feet was due to the fault of the owner of said house, because the city authorities gave him a permit to construct a media agua only one meter or 39 1/2 inches wide, but instead he built one having a width of 65 3/4 inches, 17 3/8 inches more than the width permitted by the authorities, thereby reducing the distance to the electric wire to less than the prescribed minimum of 3 feet. It is a fact that the owner of the house exceeded the limit fixed in the permit given to him by the city authorities for the construction of the media agua, and that if he had not done soAppellants wire would have been 11 3/8 (inches) more than the required distance of three feet from the edge of the media agua. It is also a fact, however, that after the media agua was constructed the owner was given a final permit of occupancy of the house .
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The wire was an exposed, high tension wire carrying a load of 3,600 volts. There was, according to Appellant, no insulation that could have rendered it safe, first, because there is no insulation material in commercial use for such kind of wire; and secondly, because the only insulation material that may be effective is still in the experimental stage of development and, anyway, its costs would be prohibitive
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The theory followed by the appellate court in finding for the Plaintiff is that although the owner of the house in constructing the media agua in question exceeded the limits fixed in the permit, still, after making that media agua, its construction though illegal, was finally approved because he was given a final permit to occupy the house; that it was the company that was at fault and was guilty of negligence because although the electric wire in question had been installed long before the construction of the house and in accordance with the ordinance fixing a minimum of 3 feet, mere compliance with the regulations does not satisfy the requirement of due diligence nor avoid the need for adopting such other precautionary measures as may be warranted; that negligence cannot be determined by a simple matter of inches; that all that the city did was to prescribe certain minimum conditions and that just because the ordinance required that primary electric wires should be not less than 3 feet from any house, the obligation of due diligence is not fulfilled by placing such wires at a distance of 3 feet and one inch, regardless of other factors. The appellate court, however, refrained from stating or suggesting what other precautionary measures could and should have been adopted.
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After a careful study and discussion of the case and the circumstances surrounding the same, we are inclined to agree to the contention of Petitioner Company that the death of Magno was primarily caused by his own negligence and in some measure by the too close proximity of the media agua or rather its edge to the electric wire of the company by reason of the violation of the original permit given by the city and the subsequent approval of said illegal construction of the media agua. We fail to see how the Company could be held guilty of negligence or as lacking in due diligence. Although the city ordinance called for a distance of 3 feet of its wires from any building, there was actually a distance of 7 feet and 2 3/4 inches of the wires from the side of the house of Pealoza. Even considering said regulation distance of 3 feet as referring not to the side of a building, but to any projecting part thereof, such as a media agua, had the

house owner followed the terms of the permit given him by the city for the construction of his media agua, namely, one meter or 39 3/8 inches wide, the distance from the wires to the edge of said media agua would have been 3 feet and 11 3/8 inches. In fixing said one meter width for the media agua the city authorities must have wanted to preserve the distance of at least 3 feet between the wires and any portion of a building. Unfortunately, however, the house owner disregarding the permit, exceeded the one meter fixed by the same by 17 3/8 inches and leaving only a distance of 2 1/2 feet between the Media agua as illegally constructed and the electric wires. And added to this violation of the permit by the house owner, was its approval by the city through its agent, possibly an inspector. Surely we cannot lay these serious violations of a city ordinance and permit at the door of the Company, guiltless of breach of any ordinance or regulation. The Company cannot be expected to be always on the lookout for any illegal construction which reduces the distance between its wires and said construction, and after finding that said distance of 3 feet had been reduced, to change the stringing or installation of its wires so as to preserve said distance. It would be much easier for the City, or rather it is its duty, to be ever on the alert and to see to it that its ordinances are strictly followed by house owners and to condemn or disapprove all illegal constructions. Of course, in the present case, the violation of the permit for the construction of the media agua was not the direct cause of the accident. It merely contributed to it. Had said media agua been only one meter wide as allowed by the permit, Magno standing on it, would instinctively have stayed closer to or hugged the side of the house in order to keep a safe margin between the edge of the media agua and the yawning 2-story distance or height from the ground, and possibly if not probably avoided the fatal contact between the lower end of the iron sheet and the wires. We realize that the presence of the wires in question quite close to the house or its media agua was always a source of danger considering their high voltage and uninsulated as they were, but the claim of the company and the reasons given by it for not insulating said wires were unrefuted as we gather from the findings of the Court of Appeals, and so we have to accept them as satisfactory. Consequently, we may not hold said company as guilty of negligence or wanting in due diligence in failing to insulate said wires. As to their proximity to the house it is to be supposed that distance of 3 feet was considered sufficiently safe by the technical men of the city such as its electrician or engineer. Of course, a greater distance of say 6 feet or 12 feet would have increased the margin of safety but other factors had to be considered such as that the wires could not be strung or the posts supporting them could not be located too far toward the middle of the street. Thus, the real cause of the accident or death was the reckless or negligent act of Magno himself. When he was called by his stepbrother to repair the media agua just below the third story window, it is to be presumed that due to his age and experience he was qualified to do so. Perhaps he was a tinsmith or carpenter and had training and experience for the job. So, he could not have been entirely a stranger to electric wires and the danger lurking in them. But unfortunately, in the instant care, his training and experience failed him, and forgetting where he was standing, holding the 6-feet iron sheet with both hands and at arms length, evidently without looking, and throwing all prudence and discretion to the winds, he turned around swinging his arms with the motion of his body, thereby causing his own electrocution. In support of its theory and holding that Defendant-Appellant was liable for damages the Court of Appeals cites the case of Astudillo vs. Manila Electric Co., 55 Phil., 427. We do not think the case is exactly applicable. There, the premises involved was that elevated portion or top of the walls of Intramuros, Manila, just above the Sta. Lucia Gate. In the words of the Court, it was a public place where persons come to stroll, to rest and to enjoy themselves. The electric

company was clearly negligent in placing its wires so near the place that without much difficulty or exertion, a person by stretching his hand out could touch them. A boy named Astudillo, placing one foot on a projection, reached out and actually grasped the electric wire and was electrocuted. The person electrocuted in said case was a boy who was in no position to realize the danger. In the present case, however, the wires were well high over the street where there was no possible danger to pedestrians. The only possible danger was to persons standing on the media agua, but a media agua can hardly be considered a public place where persons usually gather. Moreover, a person standing on the media agua could not have reached the wires with his hands alone. It was necessary as was done by Magno to hold something long enough to reach the wire. Furthermore, Magno was not a boy or a person immature but the father of a family, supposedly a tinsmith trained and experienced in the repair of galvanized iron roofs and media agua. Moreover, in that very case of Astudillo vs. Manila Electric Co., supra, the court said that although it is a well- established rule that the liability of electric companies for damages or personal injuries is governed by the rules of negligence, nevertheless such companies are not insurers of the safety of the public. But even assuming for a moment that under the facts of the present case the Defendantelectric company could be considered negligent in installing its electric wires so close to the house and media agua in question, and in failing to properly insulate those wires (although according to the unrefuted claim of said company it was impossible to make the insulation of that kind of wire), nevertheless to hold the Defendant liable in damages for the death of Magno, such supposed negligence of the company must have been the proximate and principal cause of the accident, because if the act of Magno in turning around and swinging the galvanized iron sheet with his hands was the proximate and principal cause of the electrocution, then his heirs may not recover. Such was the holding of this Court in the case of Taylor vs. Manila Electric Railroad and Light Company, 16 Phil., 8. In that case, the electric company was found negligent in leaving scattered on its premises fulminating caps which Taylor, a 15- year old boy found and carried home. In the course of experimenting with said fulminating caps, he opened one of them, held it out with his hands while another boy applied a lighted match to it, causing it to explode and injure one of his eyes eventually causing blindness in said eye. Said this Tribunal in denying recovery for the injury:
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, so that while it may be true that these injuries would not have been incurred but for the negligent act of the Defendant in leaving the caps exposed on its premises, neverthelessPlaintiffs own act was the proximate and principal cause of the accident which inflicted the injury.
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To us it is clear that the principal and proximate cause of the electrocution was not the electric wire, evidently a remote cause, but rather the reckless and negligent act of Magno in turning around and swinging the galvanized iron sheet without taking any precaution, such as looking back toward the street and at the wire to avoid its contacting said iron sheet, considering the latters length of 6 feet. For a better understanding of the rule on remote and proximate cause with respect to injuries, we find the following citation helpful:
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A prior and remote cause cannot be made the basis of an action if such remote cause did nothing more than furnish the condition or give rise to the occasion by which the injury was made possible, if there intervened between such prior or remote cause and the injury a distinct, successive, unrelated, and efficient cause of the injury, even though such injury would not have happened but for such condition or occasion. If no danger existed in the condition except because of the independent cause, such condition was not the proximate cause. And if an

independent negligent act or defective condition sets into operation the circumstances which result in injury because of the prior defective condition, such subsequent act or condition is the proximate cause. (45 C.J. pp. 931-332.). We realize that the stringing of wires of such high voltage (3,600 volts), uninsulated and so close to houses is a constant source of danger, even death, especially to persons who having occasion to be near said wires, do not adopt the necessary precautions. But may be, the City of Manila authorities and the electric company could get together and devise means of minimizing this danger to the public. Just as the establishment of pedestrian lanes in city thoroughfares may greatly minimize danger to pedestrians because drivers of motor vehicles may expect danger and slow down or even stop and take other necessary precaution upon approaching said lanes, so, a similar way may possibly be found. Since these high voltage wires cannot be properly insulated and at reasonable cost, they might perhaps be strung only up to the outskirts of the city where there are few houses and few pedestrians and there step-down to a voltage where the wires carrying the same to the city could be properly insulated for the better protection of the public. In view of all the foregoing, the appealed decision of the Court of Appeals is hereby reversed and the complaint filed against the Company is hereby dismissed. No costs. Paras, C.J., Bengzon, Padilla, Reyes, A., Jugo, Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L., and Endencia, JJ., concur.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 133695. February 28, 2001 PEOPLE OF THE PHILIPPINES, plaintiff and appellee, vs. DANIEL MAURICIO Y PEREZ, accused-appellant. DECISION BELLOSILLO, J.: DANIEL MAURICIO y Perez, accused-appellant, will elude the gallows because of a simple, although vital, omission in the Information charging him with rape. To the uninitiated in the workings of the justice system, this seeming leniency to a felon who raped his 11-year old daughter is a blatant outrage. But for those ho are abreast with the law, the imposition of a lower penalty in this case is consistent with due process. The rule that saves Mauricio today from the capital punishment is not a mere technicality but a safeguard of one of the fundamental rights guaranteed by the Constitution.
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Jonalyn Mauricio was born on 16 June 1986 to Daniel Mauricio and his common-law wife Emedelyn Geotina. But they separated when Jonalyn was only three (3) years old. She and her father lived in Shaw Boulevard with her paternal grandparents Alfonso and Ely Mauricio, while her mother and brothers resided in Pasay City. The grandparents owned a boarding house, a modest eatery and a commercial space which they leased out as a barber shop. Since Daniel Mauricio did not have a stable income and was always out drinking, her grandparents supported Jonalyn and sent her to school. Jonalyn would sleep with her grandparents in the room above the eatery, while Daniel stayed in the other building where the apartments and the barber shop were located. Later, Daniel took in a live-in partner and occupied one (1) room in the third floor with her, while the other room was occupied by his brother Reynaldo. One evening in 1995 when Jonalyn was fast asleep in her room, she was awakened when she felt someone taking off her shorts and panty. It was her father, who then removed his own pants and underwear. Daniel then whispered to Jonalyn his bestial intentions, "Maglaro tayo." He appeared to Jonalyn to be high on drugs. She had seen her father take drugs before and knew what it did to him. He then went on top of her as she was lying face down and inserted his penis into her vagina. "Taasbaba 'yung ari niya sa akin, sir," 1 she would later testify in court. After the painful ordeal that evening, Daniel wiped off the sap of his dastardly act, and then left without uttering a word. Jonalyn, in shock, went to a corner and cried until she fell asleep. Jonalyn lived out this harrowing scene over and over again. She could not recall how many times her father raped her, nor the exact dates. Sometimes, he would just fondle her breasts. At one time, her father raped her when she fell asleep in her uncle's room after playing video games on his computer. Another time, Daniel abused her when she baby-sat her half-sister at the request of his current live-in partner. As Jonalyn would later testify, "Basta pag natutulog ako sa restaurant, he always touched me, sir." 2 When asked how he did it, "Hinahawakan po niya ang ari niya tapos pinapasok po niya sa vagina ko, sir." 3

Sometime in 1996 Jonalyn and her grandparents transferred to Welfareville Village in Pasig City. Her grandfather Alfonso eked out a living by selling ice to neighbors while her grandmother Ely worked as a manicurist doing home service for clients. As usual, Daniel was jobless and seldom sober, and continued to rape his own daughter. Jonalyn recalled one incident where she was asleep in the sofa when Daniel inserted his finger into her vagina and mashed her breasts. She also recalled another incident, which occurred esometime in July 1997, when her grandparents were out of the house. Her father Daniel laid behind her, spread her legs and inserted his penis inside her organ. All this time Jonalyn did not say a word to anyone about her father's lechery. On 16 August 1997 Daniel committed his last act of inhumanity which prompted Jonalyn to finally to break her silence. Daniel arrived home from work at about 7:00 o'clock in the morning, apparently in his usual state of drunkenness. Only Jonalyn was in the house; she was washing dishes. Daniel suddenly grabbed her by the waist and carried her to her bed. She struggled and was able to escape Daniel momentarily, but he succeeded in grabbing her again and threw her down her bed. Daniel told her, "Maybe, your lolo is molesting you." Fortunately, Daniel returned to his senses and apologized to his daughter saying, "Pasensya ka na anak, may problema lang ako sa trabaho." He then told her not to tell anybody about the incident. But his apparent repentance and pleas not to squeal on him came too late. Jonalyn, no longer able to tolerate the physical and mental torment, rushed to the house of her neighbor and classmate Myrna Marcelo. With the help of another neighbor, she called Bantay Bata 163. The person on the other end of the line identified himself as Elmer Chavez. She then initially narrated her ordeal to him. The next day, she went to the house of her classmate Anna Patricia at Jose Fabella St., New Correctional Compound, Mandaluyong. There she met Elmer Chavez, the Bantay Bata staffer who answered her call, and Bella Zabala, a Bantay Bata social worker. She was interviewed by Zabala about the molestation. The two then accompanied Jonalyn to the PNP Crime Laboratory at Camp Crame for medical examination. The examination revealed that Jonalyn had "elastic, fleshy-type hymen with shallow healed laceration at 1 o'clock position x x x the vaginal canal narrow with prominent rugosities," and concluded that "subject is in non-virgin state physically." 4 Jonalyn was brought to the ABS-CBN office in Quezon City for another interview. She was asked if she was willing to file charges for rape against her father even if it would result in him getting the death penalty, and Jonalyn answered in the affirmative. Then accompanied by Coleen Samar, another Bantay Bata staffer, Jonalyn went to the Mandaluyong Police Station to give her statement to the police. On 8 September 1997 two (2) Informations were filed by the City Prosecutor's Office of Mandaluyong City, one alleging that in August 1997, or prior thereto, with force and intimidation, the accused Daniel Mauricio willfully and feloniously had carnal knowledge of Jonalyn Mauricio y Geotina, a girl eleven (11) years of age. The other Information alleged that on or about 16 August 1997 Daniel Mauricio, with lewd designs and by means of force and intimidation, willfully and feloniously attempted to have carnal knowledge of his daughter Jonalyn Mauricio Y Geotina, a girl eleven (11) years of age, thus commencing the commission of rape directly by overt acts but did not produce the crime by reason of cause or causes other than his own spontaneous desistance, i.e., she was able to flee from the accused. The prosecution presented as witnesses Ma. Luisa Capili of the Mandaluyong Police Station Women's Desk who took the statement of the victim, Jonalyn's grandfather Alfonso Mauricio,

Jonalyn Mauricio herself, Coleen Samar, Elmer Chavez and Dr. Dennis D. Belin, the medico-legal officer of the PNP Crime Laboratory who examined Jonalyn. Dr. Belin found a laceration in Jonalyn's hymen in the 1:00 o'clock position and concluded that she was in a non-virgin state. The doctor determined the degree of resistance of Jonalyn's vagina by introducing his finger into her organ and found her resistance to be strong, which meant that "the subject had limited sexual experience." The width of the vaginal canal, which he found to be narrow, indicated that the subject had had limited sexual experience, or not more than three (3) times. He also opined that the "sexual experience" could have been caused by a finger or any instrument other than the male sex organ. He further stated that only one (1) laceration was found but that it was possible for a single laceration to manifest even when there were several intercourses. He concluded that based on the condition of the wound it was inflicted at least two (2) weeks before the examination. He also said that the laceration might have been caused by other "stressful activities" since the laceration was less shallow and had less parameters than one normally caused by rape. Daniel Mauricio denied he raped Jonalyn. He claimed that in their old house in Shaw Boulevard, Jonalyn slept in the sala where the waitresses of the eatery also slept. Thus, according to him, it was impossible for him to have committed rape because the waitresses were always in the sala at night. He insisted that he could not possibly have raped Jonalyn in his brother Reynaldo's room because Reynaldo always came home from work at 5:00 oclock in the afternoon, and that it was very unlikely that his live-in partner would ask Jonalyn to baby-sit for her because the two (2) were not in good terms. According to Daniel, Jonalyn was jealous of his live-in partner and wanted her own parents to reconcile. The trial court 5 sustained the prosecution evidence, found Daniel Mauricio guilty of rape and sentenced him to death. He was also found guilty of attempted rape in the other case, and sentenced to seventeen (17) years, four (4) months, and one (1) day to twenty (20) years of reclusion temporal maximum. He was further ordered to pay complaining witness Jonalyn Mauricio P50,000.00 as moral damages and P30,000.00 as exemplary damages. We sustain the conviction of Daniel Mauricio for rape. His barefaced, uncorroborated denials cannot prevail over the positive testimony of his victim. When a rape victim's testimony is straightforward and candid, unshaken by rigid cross-examination and unflawed by inconsistencies or contradictions in its material points, the same must be given full faith and credit. 6 Thus the trial court observed of the testimony of Jonalyn She gave a very straight-forward and spontaneous account of her horrible experience she encountered from the hands of her father but sometimes interrupted by her sobbing and by the tears dropping from her eyes probably reminding her of the dark and sad episode in the early chapter of her life authored by no less than her father xxx To the mind of this Court these feelings of anger and emotional outbursts of the victim is (sic) but a normal and ordinary behavior of a human being against a satyr whose beastliness was the cause of her loss of virginity at a tender age especially so if he is the person who brought her to this world. We find no reason to reverse the trial court. Factual findings of trial courts, particularly the assessment of the credibility of witnesses, are accorded much weight and the highest respect on appeal. Trial courts have the opportunity to observe first hand the demeanor and conduct of witnesses and examine other proofs as well, thus they are better situated to form accurate impressions and conclusions. 7 The emotion and tears displayed by the victim convinced the trial

court of the genuineness of her testimony. Indeed, it is very difficult if not impossible to feign such a convincing demeanor. We find it hard to imagine how a girl of tender age could give so vivid a depiction of such acts of bestiality if such acts were not inflicted on her. The revelation of an innocent child whose chastity was abused deserves full credit. 8 The credibility of Jonalyn is not diminished by the fact that it took her two (2) years from the time she was first violated to come forth and break her silence. In People v. Narido we said that considering that the complainant was a child of tender years, effectively under the control of the appellant, it was not difficult to understand why even after she was abused she stayed on and did not complain. Indeed, a daughter raped by her very own father must have been overwhelmed by fear and confusion as to why the very person that gave life to her could be capable of such a detestable act. Neither is Jonalyn's credibility affected by her failure to recall the exact dates of the commission of the offense. Such lapse is a minor matter and can be expected when a witness is recounting the details of a humiliating experience which are painful and difficult to recall in open court and in the presence of other people. 9 The failure of complainant to remember some details of the crime, instead of suggesting prevarication, precisely indicates spontaneity and is to be expected from a witness who is of tender age and unaccustomed to court proceedings. 10 Coupled with the strong corroborative testimony of the medico-legal officer who verified that the victim had prior sexual experience, Jonalyn's testimony is sufficient to overthrow the presumption of innocence in favor of accused-appellant. We reject the contention of accused-appellant that it was impossible for him to have committed the crime because Jonalyn was always accompanied by the waitresses in the eatery. It is well-nigh impossible for one person to be accompanied by some other person every single second of his life. Even the most congenial person has his moments of privacy. Besides, it is an established principle that lust has no regard for time and place. For, rape can be committed even in the most unlikely places, such as a park, a roadside, school premises, or an occupied room.11 It cannot be said that accused-appellant was deprived of due process when the Information filed against him for Rape failed to state the exact date of the commission of the offense. Date is not an essential element of the crime of rape, for the gravamen of the offense is carnal knowledge of the woman. 12 Thus, the precise date need not be alleged in the Information. Sec. 11, Rule 110, of the Rules on Criminal Procedure states Sec. 11. Time of the commission of the offense. It is not necessary to state in the complaint or information the precise time at which the offense was committed except when time is a material ingredient of the offense, but the act may be alleged to have been committed at any time as near to the actual date at which the offense was committed as the information or complaint will permit. Thus, the allegation in the Information that accused-appellant committed the crime "sometime in August 1997, or prior thereto," does not violate his right to due process and is sufficient to sustain a finding of guilt for the crime charged. Even counsel for the defense does not controvert the factual findings of the court. In the appellant's brief, counsel prayed "that the judgment of conviction against accused-appellant Daniel Mauricio x x x be MODIFIED wherein the death penalty that was meted out on him should be REDUCED to RECLUSION PERPETUA x x x x." The Solicitor General, in his Manifestation and Motion in Lieu of Brief, made a recommendation to the same effect.

In this regard we agree with accused-appellant and the Solicitor General. As mentioned earlier, we cannot sustain the imposition of the death penalty. The law under which he was prosecuted is Art. 335 of The Revised Penal Code in relation to RA 7610. 13 Article 335 as amended by Sec. 11 of RA 7659, or the Death Penalty Law, provides: Art.335. When and how rape is committed.- x x x The death penalty shall also be imposed if the crime of rape is committed with any of the following attendant circumstances: 1. When the victim is under eighteen (18) years of age and the offender is a parent, ascendant, stepparent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law spouse of the parent of the victim xxx In People v. Ramos 14 this provision was interpreted to mean that for death to be imposable the concurrence of the minority of the victim and her relationship to the offender being a special qualifying circumstance should be specifically alleged in the Information. In the case at bar, although the Information did properly allege the complainant's minority, it failed to specify the relationship between the complainant and accused-appellant. It is not enough that the relationship was subsequently proved during the trial. Both relationship and minority must be alleged in the Information to qualify the crime as punishable by death. To hold otherwise would lead to a denial of accused-appellant's constitutional right to be informed of the nature and the cause of the accusation against him.15 Thus, for this oversight, accused-appellant can only be convicted of simple rape, punishable by reclusion perpetua. We likewise agree with the Solicitor General, in the other case, that the evidence on record cannot sustain a conviction for attempted rape. The Revised Penal Code defines an attempted felony thus Art. 6. Consummated, Frustrated, and Attempted Felonies. - Consummated felonies, as well as those which are frustrated and attempted, are punishable xxx There is an attempt when the offender commences the commission of a felony directly by overt acts, and does not perform all the acts of execution which should produce the felony by reason of some cause or accident other than his own spontaneous desistance. Overt acts" has been defined as some physical activity or deed, indicating the intention to commit a particular crime, more than a mere planning or preparation, which if carried to its complete termination following its natural course, without being frustrated by external obstacles nor by the voluntary desistance of the perpetrator, will logically and necessarily ripen into a concrete offense. 16 Jonalyn testified that in the morning of 16 August 1997 when the supposed attempted rape took place, Daniel grabbed her by the waist and carried her to the room while she was resisting. She further testified that she was able to run but Daniel got hold of her again and threw her on her bed. Daniel then told her "Maybe (your) lolo is molesting (you)," and "Pasensya ka na anak may problema lang ako sa trabaho." Applying the above definition to the facts of the case, it would be stretching the imagination to construe Daniel's act of throwing Jonalyn to her bed as an overt act that will "logically and necessarily ripen" into rape. The external act must have a direct and necessary connection with the

crime that the accused intended to commit. Whether Daniel indeed intended to commit the crime of rape cannot be seen merely from this particular act. Thus, Daniel should be acquitted of the charge of attempted rape. The award of P50,000.00 for moral damages is sustained it being discretionary on the part of the court, and may be awarded without need of independent proof. 17 Furthermore, as the trial court failed to award the civil indemnityex delicto, we award additional P50,000.00 as civil indemnity to the complaint the same being mandatory. 18 As to the award of P30,000.00 exemplary damages, we note that the Revised Rules of Criminal Procedure, which took effect on 1 December 2000, requires that aggravating circumstances, in order to be appreciated, be stated in the information. The pertinent provision of the new Rule 110 states Sec. 9. Cause of the accusation. - The acts or omissions complained of as constituting the offense and the qualifying and aggravating circumstances must be stated in ordinary and concise language and not necessarily in the language used in the statute but in terms sufficient to enable a person of common understanding to know what offense is being charged as well as its qualifying and aggravating circumstances and for the court to pronounce judgment (emphasis supplied). The use of the word "must" indicates that the requirement is mandatory, therefore failure to comply with Sec. 9, Rule 110, means that generic aggravating circumstances, although proven at the trial, cannot be appreciated against the accused if such circumstances are not stated in the information. It is a cardinal rule that rules of criminal procedure are given retroactive application insofar as they benefit the accused. Since the aggravating circumstance of relationship can no longer be appreciated against the accused in this case, there is no more legal basis for the award of exemplary damages. WHEREFORE, the Decision in Crim. Case No. 35-H-MD rendered by the Regional Trial Court of Mandaluyong, Br. 214, is MODIFIED. Accused-appellant DANIEL MAURICIO Y PEREZ is found GUILTY of the crime of Rape under Art. 335 of The Revised Penal Code and sentenced to reclusion perpetua instead of death. He is further ordered to pay Jonalyn Mauricio P50,000.00 for civil indemnity ex delicto and P50,000.00 for moral damages. The award of P30,000.00 for exemplary damages is deleted. In Crim. Case No. 35-H-MD for Attempted Rape, the Decision of the trial court finding accusedappellant Daniel Mauricio y Perez guilty is REVERSED and SET ASIDE; consequently, he is ACQUITTED of the crime charged.
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SO ORDERED. Davide, Jr., C.J., Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Pardo, Buena, Gonzaga-Reyes, Santiago, De Leon, Jr., and Sandoval-Gutierrez, JJ., concur.

THIRD DIVISION

[G.R. No. 120344. January 23, 2002]

FLORENTINO PADDAYUMAN, petitioner, PHILIPPINES, respondent. DECISION


SANDOVAL-GUTIERREZ, J.:

vs.

PEOPLE

OF

THE

Petition for review on certiorari[1] seeking the reversal of the Decision of the Court of Appeals in CA-G.R. CR No. 14628, which affirmed the Decision of the Regional Trial Court (Branch 5) of Tuguegarao, Cagayan, in Criminal Case No. 1853, [2] convicting Florentino Paddayuman of the crime of attempted homicide. He was sentenced to suffer six (6) months of arresto mayor, as minimum, to two (2) years, four (4) months and one (1) day of prision correccional, as maximum, and to pay his victim, Maximo Quilang, the sum of P3,688.20 as actual damages and P10,000.00 as moral damages. The facts of the case are as follows: On July 24, 1991, an Information for frustrated murder was filed against accused Florentino Paddayuman, committed as follows:

That on or about March 15, 1991, in the Municipality of Tuguegarao, Province of Cagayan, and within the jurisdiction of this Honorable Court, the said accused, Florentino Paddayuman, armed with a sharp pointed bladed instrument, with intent to kill, with evident premeditation and with treachery did then and there wilfully, unlawfully and feloniously attack, assault and stab one, Maximo Quilang inflicting upon him stab wounds on his body. That the accused had performed all the acts of execution which would have produced the crime of Murder as a consequence but which, nevertheless, did not produce it by reason of cause independent of his own will. Contrary to law.
[3]

Upon arraignment, the accused pleaded not guilty to the crime charged. Trial ensued thereafter. To prove its case against the accused, the prosecution presented three witnesses: Maximo Quilang, the victim, Apolinario Dassil and Dr. Cirilo M. Pintucan.

In his testimony, Maximo Quilang narrated that on the eve of March 15, 1991, he went to the house of his uncle, Casimiro Paddayuman, in Barangay Capatan, Tuguegarao, Cagayan, to help in the preparation of the wedding of the latters son the next day.[4] Maximo then had a drinking spree with Casimiro, Apolinario Dassil and accused Florentino Paddayuman.[5] While drinking, Maximo admonished the accused not to drink too much. Apparently annoyed, the latter left the drinking session. [6] At around 12:00 oclock midnight of the same day, Maximo also left and went to his house about 100 meters away from the house of Casimiro.[7] But while on his way home, the accused stabbed Maximo at the left side of his body. [8] The victim asked the accused, Why did you stab me?, to which the accused replied, I will really kill you. At this point, the accused again stabbed Maximo at his breast [9] and left, believing his victim was dying.[10] Feeling weak, Maximo shouted for help. Apolinario Dassil, Maximos nephew, was on his way home when he hea rd a cry for help. Rushing to the place from where the call came, Apolinario saw his uncle, Maximo, bathed in his own blood. Apolinario immediately brought Maximo in a tricycle to the Cagayan Valley Regional Hospital in Tuguegarao.[11] Dr. Cirilo Pintucan, resident physician of Cagayan Valley Hospital, testified that he examined and treated Maximo on March 16, 1991. [12] He found two stab wounds on the chest of the victim: one, on the fourth intracostal stage or on the bone at the middle of the chest, just parallel to the nipple line; and the other, on the lateral portion of the left chest which is below the nipple line.[13] Dr. Pintucans Medico-Legal Certificate[14] discloses the following findings:

FINDINGS/DIAGNOSIS = WOUND, STABBED, MULTIPLE, PENETRATING # 1 2 cms. Ant. Chest, level 4th ICS, sternal region # 2 2 cms. Level of 7th & 8th ICS, IMAL = PNEUMOHEMOTHORAX Would need medical attendance for more than nine (9) not more than 1 month barring complications.
[15]

Maximo was confined in the Cagayan Valley Regional Hospital for seven (7) days and in the Lung Center of the Philippines for two (2) days.[16] The accused never denied having stabbed the victim twice. However, he interposed self-defense. He testified that he went to the house of Casimiro Paddayuman, his cousin, at 7:00 in the morning of March 15, 1991 to assist in the preparation of the wedding of the latters son,[17] At around 6:00 in the evening, he went home, which is about 35 meters away from the house of Casimiro. At about midnight of the same day, while he was resting in his house, [18] he was stunned by the incessant

barking of dogs. He stood to find out what the noise was all about.[19] As he looked out at the window, he saw Maximo Quilang setting his granary on fire. At that time, Apolinario Dassil was just about to leave the place.[20] He (accused) then hurriedly went out of his house and approached Maximo, asking him why he was burning the granary. The latter retorted, We intend to burn all of you here.[21] Then holding a lighter, Maximo proceeded to the accuseds house. The accused tried to stop Maximo but the latter reached for something from the back pockets of his pants. Thinking it was a deadly weapon, the accused stabbed Maximo at the left side of his body. [22] Although he was wounded, Maximo was able to draw a knife and tried to hit the accused. The latter retaliated and stabbed Maximo again on the chest. Maximo then left and proceeded towards north.[23] Thereupon, the accused shouted for help in order to put out the fire in his granary. The people in Casimiros house, who were helping in the wedding preparation, responded and rushed towards the burning granary. Among them were Romeo Macanang, a Barangay Tanod, Lucio Tala, Boy Arao, Ramon Arao and Jose Viredapia.[24] To corroborate accuseds claim that his granary was burned that night of March 15, 1991, the defense offered the testimonies of Casimiro Paddayuman and Romeo Macanang. Both testified that on that night they saw the granary burning but that they did not see who caused it. Meanwhile, on June 13, 1991, a criminal complaint for destructive arson was filed with the Municipal Trial Court of Tuguegarao, Cagayan by the accused against Maximo Quilang and Apolinario Dassil. The complaint, however, was dismissed by the MTC for lack of probable cause. The Provincial Prosecutor affirmed the order of dismissal. On appeal, the said order was sustained by the Secretary of Justice.[25] Going back to the instant case, after trial, the RTC rendered its Decision convicting the accused of attempted homicide only, there being no evidence showing that the stab wounds inflicted on Maximo could cause death had it not for the timely medical attendance. The trial court held that the prosecution failed to prove the qualifying circumstances of treachery and evident premeditation. The dispositive portion of the decision reads:

Resultantly, the Court renders judgment finding accused Florentino Paddayuman y Tabao guilty beyond reasonable doubt of the crime of Attempted Homicide and applying the Indeterminate Sentence Law sentences him to an imprisonment of SIX (6) MONTHS of Arresto Mayor as minimum to TWO (2) YEARS, FOUR (4) MONTHS and ONE (1) DAY of prision correcional as maximum and to pay Maximo Quilang the sum ofP3,688.20 as actual damages and P10,000.00 as moral damages and cost. SO ORDERED.

On appeal, the Court of Appeals, in its Decision [26] dated April 26, 1995, affirmed the RTC Decision. Hence, the present petition anchored on the following grounds:

I. ON THE BASIS OF THE FINDINGS OF FACT, IN THE DECISION ITSELF, AND OF THE TRIAL COURT, PETITIONER CANNOT BE CONVICTED OF ATTEMPTED HOMICIDE; AND II. THE RULINGS OF THE RESPONDENT COURT OF APPEALS ON IMPORTANT ISSUES, ARE BASED ON THE MISAPPREHENSION OF EVIDENCE, OR ARE CONTRARY TO LAW AND JURISPRUDENCE; OTHERWISE PETITIONER SHOULD BE ENTITLED TO ACQUITTAL.
The petition lacks merit. Petitioner Florentino Paddayuman, by claiming self-defense, assumes the onus to establish his plea with certainty by credible, clear and convincing evidence; otherwise, conviction will follow from his admission that he killed the victim. [28] Where self-defense is not corroborated by independent and competent evidence, and is extremely doubtful, it cannot prosper.[29] The requisites of self-defense[30] are: (1) unlawful aggression on the part of the victim; (2) reasonable necessity of the means employed to prevent or repel it; and (3) lack of sufficient provocation on the part of the person defending himself. The element of unlawful aggression is a condition sine qua non for the justifying circumstance of selfdefense. There can be no self-defense, complete or incomplete, unless the victim has committed unlawful aggression against the person defending himself.[31] Here, petitioner testified that Maximo set fire on his granary and that when he tried to stop him, the latter reached for something from the back pockets of his pants. Petitioner surmised that Maximo was trying to get a weapon. This prompted petitioner to stab Maximo at the left side of his body. Maximo then drew a knife and attempted to lunge it at petitioner, but the latter was able to stab the former again, hitting him on the chest. Petitioners story was properly rejected by both the trial court and the Court of Appeals because, aside from being incredible, he failed to establish by strong and convincing evidence that a fire broke out in his granary that night of March 15, 1991. As aptly observed by the trial court:

[27]

First, Florentino never reported the alleged burning of his property to the Barangay Captain of Capatan, much less to the police authorities of Tuguegarao. His reason that the he expected the Barangay Tanod who was one of those who helped put off the fire in his granary to make the report, is too shallow to be believed.

Florentinos inaction cannot but nibble into the very foundation of his story for such is not the behavior of a seriously aggrieved man. Second, Florentino filed a complaint for destructive arson against Maximo and Apolinario only on June 13, 1991 90 days after the occurrence of the alleged incident and 79 days after the filing of the case at bar before the inquest court. Why the long delay? Florentino explained that he did not immediately file the case against Maximo and Apolinario because he thought that Maximo would not file the instant case. This reason, rather than justify the delay of Florentino in taking action, betrays the purpose of the latter in instituting the destructive arson case: a counter-charge to be foisted as a bargaining chip for an amicable settlement of the case at bar. Third, Florentino did not execute any sworn statement or affidavit regarding the alleged burning incident. The basis of the Criminal Complaint was the Joint Affidavit (Exhibit 4) of his father Manuel Paddayuman and cousin Casimiro Paddayuman. x x x. Fourth, Florentino did not give his counter-affidavit when the case at bar was under preliminary investigation before the inquest court. The Court is not saying that the giving of a counter-affidavit is obligatory or its non-submission necessarily suggestive of guilt. The Court however holds that in the ordinary experience of man, in the normal happenings in this world and in the natural flow of human events, a person who has injured another in lawful self-defense grabs the first opportunity to disclose his innocence or to justify his violent act.
[32]

Moreover, assuming arguendo that there was indeed a fire incident that night of March 15, 1991, petitioner failed to prove that Maximo Quilang set the fire in his granary. In fact, defense witnesses, Casimiro Paddayuman and Romeo Macanang, did not testify that Maximo was the culprit. Their testimonies simply tend to show that there was a burning incident that night of March 15, 1991. Thus:
TESTIMONY OF CASIMIRO PADDAYUMAN: Cross Examination Q A Q A Regarding the fire that was set on the granary of Florentino Paddayuman, you were not the one who noticed it? I only came to know that there was something burning through these persons who were in the kitchen, sir. When they shouted that there was a fire, you look at the direction where the fire was coming. No, I did not mind to see the direction where the fire is coming but my daughter was the one who told me that and crying that the granary of Uncle Florentino Paddayuman is burning, sir.[33] (Emphasis supplied)

TESTIMONY OF ROMEO MACANANG Cross Examination Q You were actually sleeping on the night of March 15, 1991 when you heard the shout of Jacinto Dassil that the house of Florentino Paddayuman caught fire, is that correct? Yes, sir.[34] (Emphasis supplied)

In the face of petitioners failure to establish his plea of self -defense by convincing and satisfactory evidence, the same must fail. The trial court correctly appreciated the story of the victim, Maximo Makilang, as credible and plausible, thus:

The Court had observed Maximo to be a credible witness and his story to be plausible. It is also natural, simple and direct as it jells with all the other circumstances of the incident. x x x. There is no cogent reason for this Court to disbelieve his version.
[35]

As consistently held by this Court, the findings of the trial court as to the credibility of the witnesses is accorded great respect and even finality because of its opportunity to personally examine and observe the witnesses while testifying, unless the trial court has disregarded or overlooked some facts and circumstances of weight and substance which, if considered, might alter the assailed decision or affect the result of the case.[36] Here, we see no circumstance on record which would warrant the setting aside of the findings of the lower court. We agree with the trial court that attempted homicide was committed by petitioner. Under Article 6 of the Revised Penal Code, there is an attempt when the offender commences the commission of a felony directly by overt acts but does not perform all the acts of execution which should produce the felony by reason of some cause or accident other than his own spontaneous desistance. Here, petitioner stabbed the victim twice on the chest, which is indicative of an intent to kill. Believing that Maximo was dying, petitioner left.[37] However, there is no evidence that the wounds sustained by the victim were fatal enough as to cause death. This can be gleaned from the testimony of Dr. Pintucan who did not categorically state whether or not the wounds were fatal. Circumstances which qualify criminal responsibility cannot rest on mere conjectures, no matter how reasonable or probable, but must be based on facts of unquestionable existence.[38] In the instant case, the uncertainty on the nature of the wounds warrants the appreciation of a lesser gravity of the crime committed as this is in accordance with the fundamental principle in Criminal Law that all doubts should be resolved in favor of the accused. [39] Thus, in People v. Pilones,[40] this Court held that even if the victim was wounded but the injury was not fatal and could not cause his death, the crime would only be attempted. Furthermore, the crime is attempted homicide because the qualifying circumstances of evident premeditation and treachery, as alleged in the Information, were not proven by the prosecution.

WHEREFORE, the petition is DENIED. The appealed Decision of the Court of Appeals in CA G. R. CR No. 14628 affirming the Decision of the Regional Trial Court (Branch 5) of Tuguegarao, Cagayan in Criminal Case No. 1853, is AFFIRMED in toto. SO ORDERED. Melo, (Chairman), Vitug, Panganiban, and Carpio, JJ., concur.

EN BANC

[G.R. Nos. 141154-56. January 15, 2002]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FERNANDO "Ando" COSTALES and FERNANDO RAMIREZ (atlarge), accused. FERNANDO "Ando" COSTALES, accused-appellant. DECISION
BELLOSILLO, J.:

Traditionally, religious fervor nourishes love, respect and concern for one another among brethren; it was not so however in the case of one whose adherence to his faith became the harbinger of his tragic end, sending his wife hanging by the thread of death, and worse, the crimes were perpetrated apparently by their brethren professing to be "denizens of the temple." Accused Fernando "Ando" Costales and Fernando Ramirez, the latter being still at large, stood charged with the murder of Miguel Marcelo and the frustrated murder of Crispina Marcelo. As the perpetrators were found to be in unlawful possession of firearms they were also charged with violation of PD 1866, as amended by RA 8294. Since accused Fernando Ramirez remained at large, only accused Fernando "Ando" Costales was arraigned and tried. For violation of Sec. 1, PD 1866, as amended (Crim. Case No. T-2054), accused Fernando "Ando" Costales was found guilty and sentenced[1] to an indeterminate penalty of six (6) months ofarresto mayor as minimum to six (6) years of prision correccional as maximum, and to pay a fine of P30,000. For the murder of Miguel Marcelo (Crim. Case No. T-2057), accused Fernando "Ando" Costales was found guilty and meted the ultimate penalty of death. For the frustrated murder of Crispina Marcelo (Crim. Case No. T-2056) he was found guilty only of attempted murder and sentenced to an indeterminate penalty of six (6) years of prision correccional as minimum to twelve (12) years of prision mayor as maximum. Additionally, he was ordered "to pay the heirs of the two (2) victims P250,000.00 in damages to be shared by and among them in a manner that suits them best." Sitio Raniag, Barangay Capas, was a placid but forlorn barrio in Pangasinan where the spouses Miguel and Crispina Marcelo resided in a small one-room shanty with concrete flooring and cogon roofing. Although

their married daughters Donabel, Jessie and Erlinda already had their own houses they would spend the night with them every once in a while. And so it was on the night of 27 November 1997. Jessie Molina recalled that at around 11:30 o'clock in the evening of 27 November 1997, she and her sisters Donabel and Erlinda together with their parents Miguel and Crispina had taken their own corners of their small house to prepare for the night. Miguel laid in a folding bed beside the door while the others occupied a bamboo bed with the exception of Jessie who for want of available space settled instead on the concrete floor. Jessie and Erlinda had just watched tv when two (2) persons suddenly barged into their house passing through the door kept ajar by sacks of palay and strangled her father Miguel. Jessie readily recognized the two (2) intruders because the entire room was illuminated by a nightlamp which the family kept burning overnight. Jessie narrated that Fernando "Ando" Costales, one of the assailants, poked a gun at the head of her father and shot him once in cold blood. Thereafter the other assailant Fernando Ramirez sprayed on their faces what she described as "something hot and pungent," and with his firearm pumped a bullet on her mother's chest. Erlinda Marcelo was also awakened when the two (2) accused suddenly entered their house and strangled their father after which Fernando Costales shot him point blank in the head. According to Erlinda, when tear gas was sprayed by Ramirez, she ducked and almost simultaneously she heard a gunshot towards the direction of her mother. When she opened her eyes, she saw her mother Crispina clutching her breast, reeling from the blow and collapsing on the floor in a heap. In her testimony Crispina herself confirmed that Ramirez shot her once on the right chest which caused her to bleed and lose consciousness. Both Jessie and Erlinda affirmed that they were familiar with the two (2) accused because, like the rest of the family, they were members of the "Baro a Cristiano" also known as Lamplighter, of which Fernando "Ando" Costales and Fernando Ramirez were the high priests in their respective areas. According to Jessie, her parents decided to quit the brotherhood because Ramirez warned them not to sever their ties with the sect if they did not want any harm to befall them. In fact, according to her, a month earlier Ramirez even threatened her sister Erlinda with bodily harm. Like her sister, Erlinda stated that their family distanced themselves from the congregation when Ramirez threatened her father. According to her, on 16 November 1997, Miguel tried to fetch her from the house of Ramirez but Miguel relented only after Ramirez threatened her with a bolo. Her father tried to get her when he learned that Ramirez was molesting her every time his wife was away. She however did not report this matter immediately to the authorities because she feared for her life. Dr. Alex E. Trinidad, Rural Health Physician of Umingan, Pangasinan, after conducting an autopsy on the body of Miguel Marcelo reported: (a) The gunshot wound penetrating the left lobe of the liver of deceased Miguel Marcelo was fatal; (b) Considering the trajectory of the gunshot wound, the assailant was probably pointing slightly downward; (c) The cause of death of the

deceased was internal hemorrhage arising from the gunshot wound; and, (d) Considering the wound of the victim, he could have survived for a few minutes after he was shot. To show that he could not have been a party to the crimes charged, accused Fernando Costales gave a detailed account of his activities by retracing his steps from late afternoon of 27 November 1997 until dawn of the following day. He narrated that at 5:00 o'clock in the afternoon of 27 November he was irrigating his land in Barangay Libeg, then proceeded to a nearby chapel to pray. At past 7:00 o'clock in the evening, he went to see a certain Isidro who was irrigating his own land with the use of his (Fernando's) water pump. That being done he went back home. A couple of hours later, in the company of his wife and children, he returned to the mission house to attend another religious service. At past 9:00 o'clock that same evening he dropped by Isidro's farmland to verify if the latter had finished irrigating. He went back home at around 11:00 o'clock to sleep and was awakened by Isidro at about 11:45 o'clock only to inform him that he (Isidro) was through. When Isidro left, Fernando went back to sleep only to be roused again by Gregorio Baguio who also wanted to borrow his water pump. With his sleep disrupted, he decided around midnight to visit as he did the nearby mission house to pray. Shortly after, he resumed his sleep but woke up again at 4:00 o'clock in the morning to see if Baguio had already finished watering his farm. Defense witnesses Isidro Costales and Gregorio Baguio corroborated the claim of Fernando Costales that he could not have perpetrated the crimes as he was with them all the time they were irrigating their farms. Likewise, Elvie Costales, wife of accused Fernando Costales, presented an "attendance notebook," purportedly prepared by her, showing that her husband, who was the chapter's religious leader, was worshipping in the Barangay Libeg chapel from 4:45 to 4:47 o'clock and from 5:30 to 5:37 o'clock at daybreak,[2] from 7:22 to 8:00 o'clock after sunset,[3] and from 12:10 to 12:15 o'clock midnight[4] of 27 November 1997, although he would periodically leave the prayer meeting to check if Isidro had already finished watering his farm so that Baguio could also use the pump. But the trial court viewed the alibi of the defense with askance and assigned full credit to the declarations of the prosecution witnesses. In disbelieving the veracity of the "attendance notebook," the court a quo opined that Exh. "2" could have been more impressive had it borne the confirming signatures or thumbmarks of the "Baro a Cristiano" faithful, including their leader Fernando Costales, or had Exhs. "2-B" and "2-C" been corroborated on the witness stand by a less interested member, or had the church secretary who allegedly kept record of attendance been some member other that Mrs. Costales or the nearest of kin. [5] The court below also virtually jettisoned the testimonies of Isidro Costales and Gregorio Baguio when it said that "they had every reason to come to the rescue of the accused Costales, their admittedly common nephew." Further, it pointed out that the accused and his witnesses issued contradictory and irreconcilable statements when, on one hand Isidro testified that before midnight of 27 November 1997 he went to the

house of his nephew Fernando Costales to inform him that the irrigation of his farm was already through; on the other hand, Baguio claimed that at around 11:00 o'clock that night he roused the accused who thereafter went to operate the pump and stayed put beside it until Baguio's farm was completely irrigated at 4:00 o'clock the next morning. The above statements, the court a quo observed, did not jibe with those made by the accused that his uncle Isidro woke him up at around 11:45 o'clock in the evening and told him that the irrigation of his farm was finished, after which he returned to bed and when he awakened at past 4:00 o'clock the following morning, he met Baguio who told him that he too was through irrigating. In contrast, the trial court saw no dark motives behind the respective testimonies of Crispina Marcelo and her two (2) daughters. The Costaleses and the Marcelos used to be members of the same religious sect and accused "Ando" Costales even stood as a sponsor at the wedding of Jessie Marcelo, and again when Crispina's brother got married. In short, the Marcelos could not have mistaken "Ando" Costales and Fernando Ramirez for other felons. In this automatic review, accused Fernando Costales takes exception to the findings of the trial court and thus seeks reversal of his convictions on the ground that it erred: (a) in according credence to the testimonies of the prosecution witnesses although the same are perforated with material inconsistencies and bias; (b) in not giving weight to the defense of alibi despite the weakness of the prosecution evidence; (c) in convicting him of violation of Sec. 1, PD 1866, as amended, since the same was absorbed in the crime of murder; (d) in finding that the crime was attended by conspiracy despite the fact that no aggravating circumstance was established beyond reasonable doubt; and, (e) in not appreciating the mitigating circumstance of voluntary surrender in his favor. The first and second assigned errors will be discussed jointly since they are interrelated. Accused-appellant argues that the seemingly flawless and unwavering testimonies of the three (3) key prosecution witnesses on the assault of the Marcelo household are obviously biased that they invite suspicion and disbelief. Concededly, the prosecution witnesses gave almost uniform observations on how the malefactors carried out their detestable crimes, i.e., the identity of the assailants, that Miguel was strangled by both intruders and almost simultaneously shot on the head, that one of them sprayed a chemical on the other occupants of the house and after a split second fired at Crispina. Such consistency and uniformity may be irregular at first blush, but accused-appellant failed to take into account the following factors which account for the "near flawless" statements of the prosecution witnesses: (a) the one-room shanty was very small with no substantial obstruction to impede the vision of the occupants; (b) the room was lighted by a kerosene lamp sufficient enough for the occupants to recognize accused-appellant and his cohort, especially so since the assailants were prominent and venerated leaders of their church; and, (c) at the time of the incident the Marcelo spouses and their children were lying very near each other

because of the very limited space of their shanty such that every perceived action could be seen, felt, or at least sensed, by all of them. Accused-appellant is seeing ghosts where there is none. Contrary to his submission, it would be highly irregular indeed if the prosecution witnesses failed to observe the events that transpired on that fateful night of 27 November 1997 and their statements did not dovetail, at least on material points, despite very favorable conditions for a fairly accurate observation. Neither should we ascribe importance, as the accused-appellant seems to suggest, to an apparent "inconsistency" by witness Jessie Molina when she mentioned that the unwanted intrusion occurred shortly after she turned off the television set, contrary to her earlier claim that barangay Capas was without electricity. Jessie Molina dispelled this obscurity when she clarified that the television set was powered by Motolite battery which is in fact a common practice in unenergized "barrios," as the trial court would put it,[6] and Sitio Raniag, Barangay Capas did not still have electricity at that time. Clearly, the straightforward and consistent narration of facts, as the trial court observed, by the three (3) prosecution witnesses, especially Crispina Marcelo, a victim herself, immensely fortifies the conclusion that accused-appellant is guilty as charged. Moreover, no impure motive on their part has been established by the defense to sully their truthfulness and erode their credibility. Accused-appellant cannot insist on his alibi, especially so since he and his coaccused were positively identified by the prosecution witnesses. More so when it is undisputed that the proximity of their place to the scene of the crimes did not preclude the possibility that they were in fact present at the time of their commission. On the third issue, accused-appellant decries the Decision of the court a quo in qualifying the crimes of murder and attempted murder with illegal possession of firearm and at the same time convicting him for violation of PD 1866, as amended. We agree. Although the prosecution duly established that the crime of illegal possession of firearm under PD 1866 was committed, RA 8294, which took effect 7 July 1997, amended the decree and now considers the use of unlicensed firearm as a special aggravating circumstance in murder and homicide, and not as a separate offense.[7] As it should be, possession and use of firearm without license should aggravate the crimes of murder and frustrated murder as herein charged but, fortunately for accusedappellant, Secs. 8 and 9 of the Revised Rules on Criminal Procedure, which took effect 1 December 2000, now require the qualifying as well as aggravating circumstances to be expressly and specifically alleged in the complaint or information, otherwise the same will not be considered by the court even if proved during the trial. Withal, in the absence of any allegation in the Information in Crim. Case No. T-2057 that accusedappellant committed murder with the use of unlicensed firearm, the same cannot be appreciated in imposing the proper penalty. Moving now to the modifying circumstances raised under the fourth assigned error, accused-appellant points out that the trial court grievously erred in appreciating

unlicensed firearm, evident premeditation and nighttime which were alleged in the Informations in Crim. Case No. T-2056 for frustrated murder and Crim. Case No. T2057 for murder. While we yield to the trial court's finding of treachery, we take exception to its view that evident premeditation and nighttime also aggravated the offenses. Without doubt, treachery has been established by the prosecution evidence which showed that accused-appellant Fernando Costales and his confederate Fernando Ramirez swiftly and unexpectedly barged into the Marcelo residence in the middle of the night, shot Miguel Marcelo to death as well as his wife Crispina who almost lost her life, and sprayed a substance which temporarily blinded the other occupants of the house. The suddenness of the attack gave the victims no opportunity whatsoever to resist or parry the assault thereby ensuring the accomplishment of their dastardly deed without risk to themselves. Since the attack on the victims was synchronal, sudden and unexpected, treachery must be properly appreciated. We cannot however give our assent to the view that nighttime and evident premeditation accompanied the commission of the crimes. The aggravating circumstance of nighttime is absorbed by treachery,[8] while evident premeditation cannot be appreciated in the absence of proof of the planning and preparation to kill or when the plan was conceived.[9] The convergence of the wills of the two (2) executioners amply justifies the imputation that they acted in concert and in unity in their unlawful objective when in the stillness of the night they both crashed into the Marcelo residence, strangulated the victim Miguel, then one of them shot him in the head while the other sprayed tear gas on the other members of the family obviously to disable them, and thereafter pumped a bullet at the horrified Crispina. This series of actions betrays a concerted design and concurrence of sentiments to cause mayhem and murder. Accordingly, conspiracy was properly appreciated by the trial court. Neither can we sympathize with accused-appellant's misplaced sentiment that he had been denied the mitigating circumstance of voluntary surrender. As found by the trial court, his alleged surrender was made too late, and in a place too distant from the crime site as well as his place of residence.[10] We observe that the trial court awarded P250,000.00 to the heirs of the deceased on the justification that the same had been stipulated upon by the parties. This is patently wrong. Award of damages is dictated, not by the agreement of the parties; worse, "in a manner that suits them best,"[11] but by the mandate of law and jurisprudence. Accordingly in conformity with established law and jurisprudence, the award of P50,000.00 as civil indmenity and another P50,000.00 as moral damages should be awarded to the heirs of the victim. Pursuant to Art. 248 of The Revised Penal Code as amended by RA 7659, the penalty for murder is reclusion perpetua to death. There being no modifying circumstances found in Crim. Case No. T-2057, and applying par. 2 of Art. 63 of the Code, the lesser penalty of reclusion perpetua shall be imposed.

In Crim. Case No. T-2056, accused-appellant was charged by the trial court with frustrated murder but was convicted only for attempted murder. In its Decision, the trial court explained that the failure of the prosecution to present a medical certificate or competent testimonial evidence showing that Crispina would have died from her wound without medical intervention, justified the accused's conviction for attempted murder only. We call to mind People v. De La Cruz11 where this Court ruled that the crime committed for the shooting of the victim was attempted murder and not frustrated murder for the reason that "his injuries, though no doubt serious, were not proved fatal such that without timely medical intervention, they would have caused his death." In fact, as early as People v. Zaragosa,[12] we enunciated the doctrine that where there is nothing in the evidence to show that the wound would be fatal if not medically attended to, the character of the wound is doubtful; hence, the doubt should be resolved in favor of the accused and the crime committed by him may be declared as attempted, not frustrated murder. WHEREFORE, the assailed Decision finding accused-appellant Fernando "Ando" Costales guilty of murder and attempted murder is AFFIRMED with the following MODIFICATION: In Crim. Case No. T-2057, the crime of murder not being considered to have been attended by any generic mitigating or aggravating circumstances, accused-appellant Fernando "Ando" Costales is sentenced to suffer only the penalty of reclusion perpetua. In Crim. Case No. T-2056, the crime of attempted murder not likewise considered to have been attended by any generic mitigating or aggravating circumstances, accused-appellant Fernando "Ando" Costales is accordingly sentenced in addition to his penalty imposed in Crim. Case No. T-2057 herein before mentioned, to suffer an indeterminate prison term of two (2) years and four (4) months of prision correccional medium as minimum, to eight (8) years and six (6) months of prision mayor minimum as maximum; Accused-appellant Fernando "Ando" Costales is further ordered to pay the heirs of the victim Miguel Marcelo P50,000.00 as death indemnity and another P50,000.00 as moral damages. SO ORDERED. Davide, Jr., C.J., Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Pardo, Buena, Ynares-Santiago, De Leon, Jr., Sandoval-Gutierrez, and Carpio, JJ., concur.

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. L-32754-5 July 21, 1978 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MANUEL PILONES y IBAEZ, defendant-appellant.

AQUINO, J.: Manuel Pilones appealed from the decision of the Circuit Criminal Court of Manila in Criminal Cases Nos. CCC-VI-170 (70) and CCC-VI-171 (70), convicting him of murder and frustrated murder, and sentencing him in the murder case to life imprisonment and to indemnify the heirs of Antonio G. Renolia in the sum of P18,000. In the frustrated murder case, he was sentenced to an indeterminate penalty ranging from six years and one day of prision mayor, as minimum, to twelve years and one day of reclusion temporal, as maximum, for having assaulted Nicanor Ilagan. No indemnity was imposed. In the evening of April 9, 1970 a wake or vigil for the dead (lamayan) was held in a house near Jossie Bakery, located at J.(F.) Posadas Street, Punta, Sta. Ana, Manila. Among the many persons present at that vigil were Nicanor Ilagan, 19, single, jobless, a student, and Antonio G. Renolia (Renolla), nicknamed Tony, 22, married, a jeepney driver, respectively residing at 2572 F. Posadas Street and 2495 Bagong Sikat Street, both located at Punta, Sta. Ana, Manila. Shortly after midnight or in the early morning of April 10, 1970, the house, where the vigil was being held, was stoned. Ilagan and the others came out of the house and went to the street to find out who had hurled the stones. As Ilagan stood on the lighted street, he was shot in the knee (Exh. E). He fell on the ground. The assailant was at a distance of around six meters from Ilagan and about fifteen meters away from the electric lamp on the street. Ilagan saw his assailant's face. Because of the light of the electric lamp, Ilagan remembered his assailant as the same person whom he had seen a week before in that vicinity, challenging persons to a fight. When Ilagan fell, Tony, who had also come out of the house, went to his assistance and tried to lift him. While in a stopping position, Tony was shot by the same assailant. The bullet entered his "upper left anterior chest" over the second rib and "coursed downward and backward, lacerating his left pulmonary artery and his right lung" (Exh. D). The assailant and his companions, Danny Banlag, Milo and others, who were armed with arrows and carried stones, ran away. Tony or Antonio G. Renolia died on the way to the hospital. Ilagan was also brought to the hospital where he was treated for two weeks.

For sometime, the police made no progress in the investigation of the crime. On the third day after the shooting, Ilagan, while in the hospital was informed by his friend, one of whom was Aida, that his assailant was Manuel Pilones. Fifty days after the shooting, or on May 30, 1970, Manuel Pilones, 20, jobless, a resident of 148 Tenement Housing Project, Punta, Sta. Ana, Manila was arrested for vagrancy by patrolmen of Precinct No. 9. Ilagan, who was fetched from his residence by Tony's mother, Identified as the person who had shot him after midnight on April 10, 1970. At that confrontation, Pilones was just one arm's length from Ilagan. When Ilagan fingered Pilones as the malecfactor. who had shot him and Tony Renolia (Question No. 19 of Exh. P),Pilones did not say anything (18 tsn July 13, 1970). Emiliana Giray Renolia, the mother of Tony, a resident of 2225 F. Posadas Street, Punta, Sta. Ana, was also at the precicnt. She likewise Identified Pilones as the assailant of her deceased son and three other persons (Crime Report, Exh. G). Pilones refused to give any statement or comment at that investigation. The investigator's testimony On this point upon interrogation by the fiscal is as follows (2 tsn July 30, 1970): Q In Exhibit F (Ilagan statement), the witness Nicanor Ilagan pointed to Manuel Pilones in answer to Question No. 19, where was accused Pilones when pointed to by witness Nicanor Ilagan? A He was present in the investigation room. sir. Q How far was he from Nicanor Ilagan when pointed to by him? A He was near the table sir. Q Do you know whether the accused heard Nicanor Ilagan when pointed to as the one responsible for the shooting of the victim? A Yes, sir. Q What did he say.? A Nothing, sir. Q Did you investigate accused Pilones? A Yes, sir. Q Did you confront him with this case? A Yes, sir. Q What did he say? A He said nothing. Q Did you take his statement?

A No, sir. Q Why? A He is (was) not willing to give his statement. Q Why was he not willing to give his statement? A I do not know, sir. Q Did you explain the reason why? A Yes, sir, but he refused to give his statement. At the trial Pilones relied on an alibi. He testified that when the shooting occurred, he was in the house of his aunt, Marilou Campbell, at Olongapo City. He was in that place from December 31, 1969 to May 28, 1970. His aunt and his brother-in-law, who was allegedly his companion in going to Olongapo City, did not take the witness stand to corroborate his alibi. Anacoreta Castro, a widow and a neighbor of Pilones at Punta, Sta. Ana, corroborated his alibi However, her testimony is weakened by a serious contradiction. She testified that Pilones, who was like a child to her because his family and her family "are practically one", left for Olongapo City before Christmas, while, on the other hand, Pilones testified that he went to that Place after Christmas or on December 31, 1969 (6 and 14 tsn July 30, 1970). The personal circumstances of Pilones may be useful in assessing his character. He has a commonlaw wife. He has tattoo marks on his body placed by Ben Lumot. He claims that he was framed up by Patrolman Bayani Lasian, who resided at the sixth floor of the tenement house, where he (Pilones) also resided. Patrolman Lasian allegedly suspected Pilones of being implicated in the killing of Patrolman Gameng. Lasian allegedly had a grudge against Pilones because during a basketball tournament among residents of the tenement house Pilones "tripped" and Lasian boxed him (7 tsn July 30, 1970; See Exh. 1). The residence of Pilones is about 12 meters away from Posadas Street. The crucial factual issue is whether Pilones was sufficiently Identified by the prosecution's sole eyewitness, Ilagan. as the assailant of Ilagan and the deceased Tony Renolia. The doctor, who treated Ilagan. testified that when he operated on Ilagan's wounded knee, he extracted therefrom metallic fragments. On the other hand, the doctor, who conducted an autopsy on the cadaver of Renolia, testified that he extracted a.22 caliber slug from the victim's body. Since there is a difference between a slug and a metallic fragment, Pilones' counsel contends that Ilagan and Renolia were shot by different persons or with different weapons. That circumstance is not sufficient to cast a reasonable doubt on appellant's guilt. It merely conveys the impression that, inasmuch as according to Ilagan, he and Renolia were shot in succession, Pilones used different weapons. He had time to change weapons. He had companions who could have assisted him in the execution of his felonious acts. The fact is that Ilagan positively Identified Pilones as the Person who shot him (Ilagan). Even if Renolia was shot by Pilones' companion, with a firearm different from the .22 caliber rifle used against Ilagan, Pilones would still be criminally liable for Renolia's death because he, obviously,

conspired with the person who shot Renolia. Pilones and his companions were together at the scene of the crime. They left the place together. They had community of design. The decisive fact is that Pilones was not only Identified by Ilagan but at the confrontation in the police precinct between accuser and accused, Pilones, as the accused, just kept silent and did not deny Ilagan's accusation and the Identification made by Renolia's mother. "He who remains silent when he ought to speak cannot be heard to speak when he should be silent" (31 C.J.S. 494). Rule 130 of the Rules of Court provides: SEC. 23. Admission by silence. Any act or declaration made in the presence and within the observation of a party who does or says nothing when the act or declaration is such as naturally to call for action or comment if not true, may be given in evidence against him. Silence is assent as well as consent, and may, where a direct and specific accusation of crime is made, be regarded under some circumstances as a quasi-confession. An innocent person will at once naturally and emphatically repel an accusation of crime, as a matter of self-preservation and self-defense, and as a precaution against prejudicing himself. A person's silence, therefore, particularly when it is persistent, will justify an inference that he is not innocent. (Underhill's Criminal Evidence, 4th Ed. p. 401). Appellant Pilones contends that the trial court erred in not granting his motion for new trial based on newly discovered evidence, which is the affidavit of Arturo Pangan, a detainee in the city jail of Manila. Pangan declared in his affidavit that in the "riot", clash or encounter (salakay o sagupaan) on April 9, 1970 between the residents of Barrio Puso and the residents of Labasan Bukid, he and Romy Pilones, a brother of Manuel Pilones, were together and he saw that Antonio Renolia and Nicanor Ilagan were shot by Aquilino Pingol with a .22 caliber rifle; that Pingol was in the company of Danny and Nilo Garcia, alias Nilong Bulag, and that at that time Manuel Pilones was in Olongapo City. It is evident from Pangan's affidavit that he was referring to another incident. Pangan was referring to a riot or rumble between two groups of persons. Ilagan did not testify to any rumble or tumultuous affray between the residents of two places. He testified simply to a shooting at F. Posadas Street, Punta, Sta. Ana when he came out of the house where a vigil for the dead was being held. Moreover, if according to Pangan, Romy Pilones,. the brother of appellant Manuel Pilones, was with Pangan on that occasion, the alleged newly discovered evidence could have been presented by the appellant during his trial. His brother, Romy, could not have been ignorant of what Arturo Pangan knew and Romy could have informed Manuel Pilones earlier that the assailant of Ilagan and Renolia was Pingol. The trial court did not err in denying the motion for new trial. We are convinced that Pilones was sufficiently Identified by Ilagan as the person who shot him and Renolia. Pilones has not shown any reason as to why Ilagan would accuse him of murder and frustrated murder. There is no showing that Ilagan had connived with Patrolman Lasia whom Pilones believes is the one responsible for his arrest, to frame up the accused. No motive was established as to why Pilones shot Ilagan and Renolia. The shooting can be characterized as purely a mischievous act of deviltry committed by a jobless and lawless person who did not know of any better way of using his time.

The trial court erred in holding that the crime as to Ilagan is frustrated murder. The wound in his knee was not Sufficient to cause his death. The crime is only attempted murder. The accused did not perform all the acts of execution that would bring about the death of Ilagan. WHEREFORE, the lower court's judgment is affirmed with the modification that in Criminal Case No. 171(70), Pilones is convicted of attempted murder and is sentenced to an indeterminate penalty of three (3) years of prision correccional medium, as minimum, to six (6) years and one (1) day of prision mayor Minimum, as maximum, and to pay an indemnity to Nicanor Ilagan. in the sum of two thousand pesos. The term "life imprisonment" used by the trial court should be changed to reclusion perpetua. It is the latter term that carries with it the imposition of the accessory penalties. (People vs. Mobe, 81 Phil. 58; Art. 73, Revised Penal Code). Costs against the appellant. SO ORDERED. Fernando, Barredo, Concepcion, Jr. and Santos JJ., concur. Antonio, J., took no part.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. Nos. L-39303-39305 March 17, 1934

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiffs-appellee, vs. FELIPE KALALO, ET AL., defendants. FELIPE KALALO, MARCELO KALALO, JUAN KALALO, and GREGORIO RAMOS, appellants. Meynardo M. Farol and Feliciano Gomez for appellants. Acting Solicitor-General Pea for appellee. DIAZ, J.: On November 10, 1932, the herein appellants Felipe Kalalo, Marcelo Kalalo, Juan Kalalo, and Gregorio Ramos, were tried in the Court of First Instance of Batangas jointly with Alejandro Garcia, Fausta Abrenica and Alipia Abrenica in criminal cases Nos. 6858, 6859 and 6860, the first two for murder, and the last for frustrated murder. Upon agreement of the parties said three cases were tried together and after the presentation of their respective evidence, the said court acquitted Alejandro Garcia, Fausta Abrenica and Alipia Abrenica, and sentenced the appellants as follows: In case No. 6858, for the alleged murder of Marcelino Panaligan, to seventeen years, four months and one day ofreclusion temporal, with the corresponding accessory penalties, and to indemnify the heirs of the said deceased Marcelino Panaligan in the sum of P1,000, with the costs. In case No. 6859, for the alleged murder of Arcadio Holgado, to seventeen years, four months and one day ofreclusion temporal, with the corresponding accessory penalties, and to indemnify the heirs of the aforesaid victim, the deceased Arcadio Holgado, in the sum of P1,000, with the costs. In the third case, that is, No. 6860, wherein the court a quo held that the crime committed was simply that of discharge of firearm, not frustrated murder, the appellant Marcelo Kalalo was sentenced to one year, eight months and twenty-one days of prision correccional and to pay the proportionate part of the costs of the proceedings. Felipe Kalalo and Juan Kalalo, as well as their co-accused Fausta and Alipia Abrenica, Gregorio Ramos and Alejandro Garcia, were acquitted of the charges therein. The accused in the aforesaid three cases appealed from their respective sentences assigning six alleged errors as committed by the trial court, all of which may be discussed jointly in view of the fact that they raise only one question, to wit: whether or not said sentences are in accordance with law. A careful study and examination of the evidence presented disclose the following facts: Prior to October 1, 1932, the date of the commission of the three crimes alleged in the three informations which gave rise to the aforesaid three cases Nos. 6858, 6859 and 6860, the appellant Marcelo Kalalo or Calalo and Isabela Holgado or Olgado, the latter being the sister of the deceased Arcadio Holgado and a cousin of the other deceased Marcelino Panaligan, had a litigation over a parcel of land situated in the barrio of Calumpang of the municipality of San Luis, Province of Batangas. On September 28, 1931, and again on December 8th of the same year, Marcelo Kalalo filed a complaint against the said woman in the Court of First Instance of Batangas. By virtue of a motion filed by his

opponent Isabela Holgado, his first complaint was dismissed on December 7, 1931, and his second complaint was likewise dismissed on February 5, 1932. Marcelo Kalalo cultivated the land in question during the agricultural years 1931 and 1932, but when harvest time came Isabela Holgado reaped all that had been planted thereon. On October 1, 1932, Isabela Holgado and her brother Arcadio Holgado, one of the deceased, decided to order the aforesaid land plowed, and employed several laborers for that purpose. These men, together with Arcadio Holgado, went to the said land early that day, but Marcelo Kalalo, who had been informed thereof, proceeded to the place accompanied by his brothers Felipe and Juan Kalalo, his brother-in-law Gregorio Ramos and by Alejandro Garcia, who were later followed by Fausta Abrenica and Alipia Abrenica, mother and aunt, respectively, of the first three. The first five were all armed with bolos. Upon their arrival at the said land, they ordered those who were plowing it by request of Isabela and Arcadio Holgado, to stop, which they did in view of the threatening attitude of those who gave them said order.
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Shortly after nine o'clock on the morning of the same day, Isabela Holgado, Maria Gutierrez and Hilarion Holgado arrived at the place with food for the laborers. Before the men resumed their work, they were given their food and not long after they had finished eating, Marcelino Panaligan, cousin of said Isabela and Arcadio, likewise arrived. Having been informed of the cause of the suspension of the work, Marcelino Panaligan ordered said Arcadio and the other laborers to again hitch their respective carabaos to continue the work already began. At this juncture, the appellant Marcelo Kalalo approached Arcadio, while the appellants Felipe Kalalo, Juan Kalalo and Gregorio Ramos, in turn, approached Marcelino Panaligan. At a remark from Fausta Abrenica, mother of the Kalalos, about as follows, "what is detaining you?" they all simultaneously struck with their bolos, the appellant Marcelo Kalalo slashing Arcadio Holgado, while the appellants Felipe Kalalo, Juan Kalalo and Gregorio Ramos slashed Marcelino Panaligan, inflicting upon them the wounds enumerated and described in the medical certificates Exhibits I and H. Arcadio Holgado and Marcelino Panaligan died instantly from the wounds received by them in the presence of Isabela Holgado and Maria Gutierrez, not to mention the accused. The plowmen hired by Arcadio and Isabela all ran away. Arcadio Holgado's body bore the following six wounds, to wit: 1. A cut wound on the ulnar side of right arm near the wrist, cutting the ulnar bone completely and, the radius partially. 2. A cut wound on the anterior upper portion of the left arm measuring about 7 cm. long and 5 cm. wide extending to the bone and cutting the deltoid muscle across. 3. A penetrating wound on the left chest just below the clavicle going thru the first intercostal space measuring about 8 cm. long and 2 cm wide. 4. A wound on the left side of the back about 20 cm. long following the 10th intercostal space and injuring the lung, diaphragm, stomach and large intestine. 5. A small superficial cut wound about 2 cm. long and cm. wide situated on the inner side of the right scapula. 6. A superficial wound barely cutting the skin, about 4 cm. long in the lumbar region just to the right of the spinal column. (Exhibit I.)

Marcelino Panaligan's body, in turn, bore the following fourteen wounds, to wit: 1. A penetrating cut wound in the epigastric region of the abdomen measuring about 7 cm. long and 3 cm. wide cutting the omentum and injuring the lower portion of the stomach and a portion of the transverse colon, but no actual perforation of either one of the two organs. 2. A cut wound on the head just above the forehead about 6 cm. long and 4 cm. wide lifting a portion of scalp as a flap. 3. A cut wound on the left side of the head measuring about 7 cm. long and 2 cm. wide. 4. A cut wound about 12 cm. long across the face just below the eyes extending from one cheek bone to the other, perforating the left antrum and cutting the nasal bone. 5. A cut wound on the anterior portion of the left forearm extending to the bone with a flap of skin and muscle which measures about 12 cm long and 6 cm. wide. 6. A cut wound across the dorsal side of the right hand about 5 cm. long and 2 cm. wide cutting the bones of the hand. 7. A superficial wound about 6 cm. long and 4 cm. wide and 2 cm. deep situated in the left axilla. 8. A cut wound about 6 cm. long and 2 cm. wide situated over the left scapula. 9. A cut wound on the right shoulder about 6 cm. long passing near the inner angle of the scapula cutting the muscles of the shoulder. 10. A cut wound about 7 cm. long and 3 cm. wide situated near and almost parallel to the inner border of the right scapula. 11. A wound on the back of the head, oval in shape, about 10 cm. long and 5 cm. wide from which a flap of scalp was removed. 12. A wound across the back and left side of the neck about 12 cm. long and 7 cm. deep cutting the vertebral column together with the great arteries and veins on the left side of the neck. 13. A wound about 15 cm. long and 4 cm. wide on the left side of the back. 14. A small wound on the left thumb from which a portion of the bone and other tissues were removed. (Exhibit H.) The above detailed description of the wounds just enumerated discloses and there is nothing of record to contradict it all of them were caused by a sharp instrument or instruments. After Arcadio Holgado and Marcelino Panaligan had fallen to the ground dead, the appellant Marcelo Kalalo took from its holster on the belt of Panaligans' body, the revolver which the deceased carried, and fired four shots at Hilarion Holgado who was then fleeing from the scene inorder to save his own life.

The appellants attempted to prove that the fight, which resulted in the death of the two deceased, was provoked by Marcelino Panaligan who fired a shot at Marcelo Kalalo upon seeing the latter's determination to prevent Arcadio Holgado and his men from plowing the land in question. No such firing, however, can be taken into consideration, in the first place, because of the existence of competent evidence such as the testimony of Maria Gutierrez, who is a disinterested witness, which corroborates that of Isabela Holgado in all its details, showing that the said deceased was already lying prostrate and lifeless on the ground when the appellant Marcelo Kalalo approached him to take his revolver for the purpose of using it, as he in fact did, against Hilarion Holgado; in the second place, because the assault and aggression of the said appellant were not directed against said Marcelino Panaligan but exclusively against Arcadio Holgado, the evidence of record on this point being overwhelming, and if his claim were true, he naturally should have directed his attack at the person who openly made an attempt against his life; in the third place, because the evidence shows without question that Panaligan was an expert shot with a revolver, and among the eight wounds that the appellant Marcelo Kalalo received (Exhibit 3), not one appears to have been caused by bullet, and similarly, none of the other appellants received any wound that might, in any way, suggest the possibility of having been caused by bullet; and finally, because the fact that he and his co-appellants, together with those who had been charged jointly with them, had gone to the place of the crime armed with bolos, determined at any cost to prevent the Holgados from plowing the land in dispute, cannot but disclose not only their determination to resort to violence or something worse, but that they did not need any provocation in order to carry out their intent. They likewise attempted to prove that the appellant Marcelo Kalalo alone fought against the deceased Marcelino Panaligan and Arcadio Holgado and inflicted upon them the wounds which resulted in their death, said appellant testifying that he was compelled to do so in defense of his own life because both of the deceased attacked him first, the former with a revolver, firing three shots at him, and the latter with a bolo. For the same reasons hereinbefore stated, such defense of the appellants cannot be given credit. One man alone could not have inflicted on the two deceased their multiple wounds, particularly when it is borne in mind that one of them was better armed, because he carried a revolver, and that he was furthermore an expert shot and scarcely two arm-lengths from Kalalo, according to the latter's own testimony. The two witnesses for the defense, who witnessed the crime very closely, refuted such allegation saying that Marcelo Kalalo alone fought the deceased Arcadio Holgado and that the other three appellants went after the other deceased. It is true that Arcadio Holgado also used his bolo to defend himself from Marcelo Kalalo's aggression but it is no less true that five of the principal wounds of the other deceased Marcelino Panaligan were inflicted on him from behind, inasmuch as according to Exhibit H they were all found at the back of the head, on the neck and on his back. Neither is it less true that all the wounds of the appellant Marcelo Kalalo were inflicted on him from the front, which fact shows that it was not he alone who inflicted the wounds on the two deceased because had he been alone Panaligan would not have exposed his back to be thus attacked from behind, inasmuch as he was armed with a revolver, which circumstance undoubtedly allowed him to keep at a distance from Kalalo; and in connection with the testimony of Isabela Holgado and Maria Gutierrez, said circumstance shows furthermore that the three appellants Felipe Kalalo, Juan Kalalo and Gregorio Ramos attacked said Panaligan with their respective bolos at the same time that Marcelo Kalalo attacked Arcadio Holgado, in order that all might act simultaneously in conformity with the common intent of the four and of their coaccused to eliminate through violence and at any cost, without much risk to them, all those who wanted to plow the land which was the cause of the dispute between the two parties. And it is not strange that the three appellants, who inflicted the wounds upon Marcelino Panaligan, should act as they did, because they knew that the latter carried a revolver in a holster on his belt. Although it may seem a repetition or redundancy, it should be stated that Marcelo Kalalo's allegation that he acted in self-defense is absolutely unfounded on the ground that, were it true that the deceased Marcelino Panaligan succeeded in using his revolver, he would have wounded if not the said appellant, at least the other appellants.

The trial court has acted correctly in not giving credit to the testimony of the appellants Juan and Felipe Kalalo and Gregorio Ramos that they proceeded to the scene of the crime completely unarmed, with the exception that one of them had a brush in his hand and the other a plane, after Marcelino Panaligan and Arcadio Holgado had already expired, which is incredible and improbable under the circumstances, knowing, as in fact they then knew, that their brother Marcelo Kalalo had been attacked by armed men. This court cannot help but agree with the decision of the lower court where it states: It is improbable that after having been informed that their brother was engaged in a fight, they went to the scene of the crime, one merely armed with a plane and the other with a brush. It is improbable that Felipe Kalalo also went to that place simply to follow Juan Kalalo and Gregorio Ramos upon seeing them run unarmed in that direction. These improbabilities of the defenses of the accused, in the face of the positive and clear testimony of the eyewitnesses pointing to the said accused as the aggressors of the deceased Marcelino Panaligan and Arcadio Holgado, cannot, of course, prevail against nor detract from the weight of the evidence of the prosecution, particularly taking into consideration the numerous wounds of each of the deceased and the positions thereof, which show that the said deceased were attacked by several persons and that those several persons were the defendants. Furthermore, the established fact that after the commission of the crime the said defendants had been in hiding in order to avoid arrest, is corroborative evidence of their guilt. It certainly is a fact of record that the said three appellants Felipe Kalalo, Juan Kalalo and Gregorio Ramos were not arrested until after several days, because they had been hiding or, at least, absenting themselves from their homes. That the four appellants should all be held liable for the death of the two deceased leaves no room for doubt. All of them, in going to the land where the killing took place, were actuated by the same motive which was to get rid of all those who might insist on plowing the land which they believed belonged to one of them, that is, to Marcelo Kalalo, a fact naturally inferable from the circumstance that all of them went there fully armed and that they simultaneously acted after they had been instigated by their mother with the words hereinbefore stated, to wit: "What is detaining you?" The question now to be decided is whether the appellants are guilty of murder or of simple homicide in each of cases G.R. No. L-39303 and G.R. No. L-39304. The Attorney-General maintains that they are guilty of murder in view of the presence of the qualifying circumstance of abuse of superior strength in the commission of the acts to which the said two cases particularly refer. The trial court was of the opinion that they are guilty of simple homicide but with the aggravating circumstance of abuse of superior strength. It is true that under article 248 of the Revised Penal Code, which defines murder, the circumstance of "abuse of superior strength", if proven to have been presented, raises homicide to the category of murder; but this court is of the opinion that said circumstance may not properly be taken into consideration in the two cases at bar, either as a qualifying or as a generic circumstance, if it is borne in mind that the deceased were also armed, one of them with a bolo, and the other with a revolver. The risk was even for the contending parties and their strength was almost balanced because there is no doubt but that, under circumstances similar to those of the present case, a revolver is as effective as, if not more than three bolos. For this reason, this court is of the opinion that the acts established in cases Nos. 6858 and 6859 (G.R. Nos. L-39303 and 39304, respectively), merely constitute two homicides, with no modifying circumstance to be taken into consideration because none has been proved.

As to case No. 6860 (G.R. No. 39305), the evidence shows that Marcelo Kalalo fired four successive shots at Hilarion Holgado while the latter was fleeing from the scene of the crime in order to be out of reach of the appellants and their companions and save his own life. The fact that the said appellant, not having contended himself with firing only once, fired said successive shots at Hilarion Holgado, added to the circumstance that immediately before doing so he and his co-appellants had already killed Arcadio Holgado and Marcelino Panaligan, cousin and brother-in-law, respectively, of the former, shows that he was then bent on killing said Hilarion Holgado. He performed everything necessary on his pat to commit the crime that he determined to commit but he failed by reason of causes independent of his will, either because of his poor aim or because his intended victim succeeded in dodging the shots, none of which found its mark. The acts thus committed by the said appellant Marcelo Kalalo constitute attempted homicide with no modifying circumstance to be taken into consideration, because none has been established. Wherefore, the three appealed sentences are hereby modified as follows: In case No. 6858, or G.R. No. 39303, the court finds that the crime committed by the appellants is homicide and they hereby sentenced to fourteen years, eight months and one day of reclusion temporal each, to jointly and severally indemnify the heirs of Marcelino Panaligan in the sum of P1,000 and to pay the proportionate part of the costs of the proceedings of both instances; and by virtue of the provisions of Act No. 4103, the minimum of the said penalty of reclusion temporal is hereby fixed at nine years; In case No. 6859, or G.R. No. 39304, the court likewise finds that the crime committed by the appellants is homicide, and they are hereby sentenced to fourteen years, eight months and one day of reclusion temporaleach, to jointly and severally indemnify the heirs of Arcadio Holgado in the sum of P1,000 and to pay the proportionate part of the costs of both instances; and in conformity with the provisions of Act No. 4103, the minimum of the penalty of reclusion temporal herein imposed upon them is hereby fixed at nine years; In case No. 6860, or G.R. No. 39305, the court finds that the crime committed by the appellant Marcelo Kalalo is attempted homicide, and he is hereby sentenced to two years, four months and one day of prision correccional, it being understood that by virtue of the provisions of said Act No. 4103, the minimum of this penalty is six months, and he is furthermore sentenced to pay the costs of the appeal in this case. In all other respects, the appealed sentences in the said three cases are hereby affirmed without prejudice to crediting the appellants therein with one-half of the time during which they have undergone preventive imprisonment, in accordance with article 29 of the Revised Penal Code. So ordered. Street, Abad Santos, Hull, and Butte, JJ., concur.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 1603 April 15, 1904

THE UNITED STATES, complainant-appellee, vs. FLAVIANO SIMEON, defendant-appellant. Felix Ferrer for appellant. Office of the Solicitor-General Araneta for appellee. MCDONOUGH, J.: The defendant, Flaviano Simeon, was charged with having, on or about April 10, 1903, in the city of Manila, feloniously attempted to assassinate one Bali Kan with a dangerous and deadly weapon, to wit, a bolo; and that he was frustrated in the execution of his purpose by being overpowered by third parties. He was placed upon trial April 28, 1903; was found guilty, and was sentenced to imprisonment for a term of four years and two months. The proof in this case, briefly stated, shows that Bali Kan was night watchman at the railroad station in Manila; that his dwelling place was very near that station; that the defendant was seen on several occasions walking near that place with a working bolo in his hand and had been requested by Bali Kan to go away but refused to do so, whereupon Bali Kan pushed the defendant. On the morning in question, while Bali Kan was walking from the station toward his house, he encountered the defendant who, while about two yards away; raised his bolo as if about to strike or stab Bali Kan with it. The latter shouted for help and ran away, and immediately thereafter a detective of the police department arrested the defendant. No blow was struck; nor is there proof of threats to kill or to do bodily harm. A crime is frustrated when the guilty person performs all the acts of execution which should produce the crime as their consequence, but nevertheless do not constitute it by reason of causes independent of the will of the perpetrator. (Art. 3, Penal Code.) In order to constitute the crime of assassination, it must be proved that the accused committed the crime with treachery; for a price or reward; by means of flood, fire, or poison; with deliberate premeditation, or with vindictiveness, by deliberately and inhumanely increasing the suffering of the person attacked. The evidence does not show that any of these essential elements of the crime of assassination existed in this case. There is no proof whatever from which it may be even inferred that the defendant intended to kill Bali Kan, much less to show that he intended to do so with deliberate premeditation.

The crime committed by the defendant is that provided for in article 589 of the Penal Code for threatening another with weapons, and it is punishable by imprisonment from one to five days or by a fine of from 15 to 125 pesetas. The judgment of the Court of first Instance is reversed, and judgement is ordered that the defendant be imprisoned for a term of five days with costs de oficio. Arellano, C. J., Torres, Cooper, Mapa and Johnson, JJ., concur.

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 116200-02 June 21, 2001

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. PO3 ELEUTERIO TAN, PO3 LEONILO MARANGA, PO3 ALEXANDER PACIOLES, PO1 PAULO DE LA PEA, PNP, NAVAL, BILIRAN, accused-appellants . YNARES-SANTIAGO, J.: Four policemen were charged with murder and two counts of attempted murder for the killing of Ramon Gabitan and the wounding of Judith Cerilles and Edward Villaflor The facts as condensed from the records are as follows: At around 10:30 pm on May 12, 1991, PT Officer Second Class Ramon Gabitan, CAFGU member Andres Lapot, and one Danilo Dumdum, all belonging to the Philippine Coast Guard, together with the Chiefmate and other crew members of M/V Dang Delima, a foreign vessel, were drinking beer at the Twins Disco Pub in Naval, Leyte (now in Biliran province). The group danced with some of the waitresses of the disco house. One of them, Froilan Acorda, a crew member of the M/V Dang Delima, danced most of the time with waitress Rosie Catigbe, an alleged girlfriend of accusedappellant PO3 Eleuterio Tan, who was also in the said disco house with two companions. After dancing, Rosie Catigbe sat beside Acorda, and the latter rested his hand on the thigh of the former. Later, Gabitans group left the disco house together with five waitresses, among whom were Rosie Catigbe and Jovith Cerilles.1 They were to proceed back to the foreign vessel M/V Dang Delima which was anchored a few miles away from the shores of Naval, Leyte by riding the pumpboat owned by Lapot. As they were leaving the disco house, accused-appellant Tan approached them and talked to two of the waitresses who were walking behind the group. The two waitresses turned back and did not join the group anymore after they were told by Tan that they will be brought to the foreign vessel. Thereafter, Tan confronted Froilan Acorda and introduced himself as a police officer. Froilan asked for his badge. Tan instead took out his .38 caliber gun. Froilan hit Tan with a karate blow and the gun fell to the ground. Disarmed, Tan rode his bicycle and left. Gabitans group, together with the three remaining waitresses, Jovith Cerilles, Ina Corpin and Rosie Catigbe, boarded the pumpboat. As they were about to leave the pier, a fire truck arrived. Tan was on top of the water tank. Accused-appellant PO3 Leonilo Maranga jumped off as the truck stopped and positioned himself in front. Accused-appellant PO3 Alexander Pacioles was behind the wheel of the truck. Accused-appellant SPO1 Paulo dela Pea also jumped off the rear of the truck. Armed with M-16 rifles, one of the accused-appellants allegedly fired two warning shots to stop the pumpboat. But as the small vessel moved on, accused-appellants opened fire at the moving pumpboat. Gabitan was hit by a bullet and fell overboard,2 as the pumpboat sped away. His dead body was recovered the following day in the ocean by fishermen. Jovith Cerilles sustained five wounds while Edward Villaflor, who was also on board the pumpboat, was hit in the right leg. The latter two were brought to different hospitals and survived their wounds. All the accused-appellants were subsequently charged with murder and two counts of attempted murder before the Regional Trial Court of Biliran, which were respectively docketed as Criminal

Cases Nos. 1530, 1531 and 1532. However, upon motion of the prosecution, this Court ordered a change of venue and the cases were transferred to the RTC of Tacloban City.3 The cases were reraffled and docketed anew as Criminal Cases Nos. 92-07-343, 92-09-477 and 92-09-478. The Informations read: Criminal Case No. 92-09-3434 That on or about May 12, 1991 at around 10:30 oclock in the evening in the Municipality of Naval, Province of Biliran and within the jurisdiction of this Honorable Court above-named accused conspiring, confederating and mutually helping each other with evident premeditation and treachery and with intent to kill did then and there wilfully, unlawfully and feloniously fire, shoot, and discharge their M16 "Armalite" rifles at Ramon Gabitan who was at that precise time riding in a pumpboat catching the latter by surprise hitting him in his chest which caused his instantaneous and untimely death. CONTRARY TO LAW. (Italics supplied) Criminal Case No. 92-09-4775 That on or about May 12, 1991 at around 10:30 oclock in the evening in the Municipality of Naval, Province of Biliran and within the jurisdiction of this Honorable Court above-named accused conspiring, confederating and mutually helping each other with evident premeditation and with intent to kill did then and there wilfully, unlawfully and feloniously fire, shoot and discharge their M16 "armalite" rifles at Judith Cerilles who was at that precise time riding in a pumpboat catching the latter by surprise hitting and wounding the victim at her left shoulder which required immediate medical assistance resulting to (sic) the damage and prejudice of the victim. CONTRARY TO LAW. (Italics supplied) Criminal Case No. 92-09-4786 That on or about May 12, 1991 at around 10:30 in the evening in the Municipality of Naval, Province of Biliran and within the jurisdiction of this Honorable Court above-named accused conspiring, confederating and mutually helping each other with evident premeditation and treachery and with intent to kill did then and there wilfully, unlawfully and feloniously fire, shoot and discharge their M16 "armalite" rifles at Edward Villaflor who was at that precise time riding in a pumpboat catching the latter by surprise hitting and wounding the victim in his right thigh which required immediate medical assistance resulting to (sic) the damage and prejudice of the victim. CONTRARY TO LAW. (Italics supplied) After arraignment, where they all pleaded not guilty, accused-appellants were tried and thereafter convicted as charged. The dispositive portion of the trial courts decision reads: WHEREFORE, finding accused Eleuterio Tan, Leonilo Maranga, Alexander Pacioles and Paulo dela Pea guilty beyond reasonable doubt as principals of the crime of Murder qualified by treachery in Criminal Case No. 92-07-343 for the killing of Ramon Gabitan, defined and penalized under Article 248 of the Revised Penal Code with the aggravating circumstance of evident premeditation on the part of accused Eleuterio Tan only without any

mitigating circumstance to offset the same, sentences accused Eleuterio Tan toReclusion Perpetua. The aggravating circumstance of evident premeditation not being applicable on the part of the three other accused, the Court hereby sentences accused Leonilo Maranga, Paulo dela Pea and Alexander Pacioles to an Indeterminate Penalty of from Ten (10) Years and One (1) Day of Prision Mayor as minimum to Seventeen (17) Years and Four (4) Months of Reclusion Temporal as maximum. Accused Eleuterio Tan, Leonilo Maranga, Paulo dela Pea and Alexander Pacioles are hereby condemned to jointly indemnify the heirs of Ramon Gabitan the sum of Two Hundred Thousand (P200,000.00) Pesos without subsidiary imprisonment in case of insolvency. The bond put up by accused Eleuterio Tan for his temporary liberty is hereby cancelled, and he should be incarcerated immediately. Finding accused Eleuterio Tan, Leonilo Maranga, Paulo dela Pea and Alexander Pacioles guilty beyond reasonable doubt as principals in Criminal Case No. 92-09-477 for Attempted Murder, defined and penalized under Article 248 in relation to Article 51 of the Revised Penal Code with the aggravating circumstance of evident premeditation on the part of accused Eleuterio Tan only without any mitigating circumstance to offset the same, and applying Indeterminate Sentence Law, sentences accused Eleuterio Tan to an imprisonment of from Two (2) Years, Ten (10) Months and Twenty-one (21) Days of Prision Correccional as minimum to Eight (8) Years, and Twenty-one (21) Days of Prision Mayor as maximum. The aggravating circumstance of evident premeditation being not applicable to the other three accused, the Court hereby sentences accused Leonilo Maranga, Paulo dela Pea and Alexander Pacioles to an Indeterminate Penalty of from One (1) Year, Seven (7) Months and Eleven (11) Days of Arresto Mayor as minimum to Six (6) Years, One (1) Month and Eleven (11) Days of Prision Correccional as maximum. Accused Eleuterio Tan, Leonilo Maranga, Paulo dela Pea and Alexander Pacioles are hereby condemned to jointly indemnify the offended party Juvith Cerelles the sum of Twenty Thousand (P20,000.00) Pesos, without subsidiary imprisonment in case of insolvency. Finding accused Eleuterio Tan, Leonilo Maranga, Paulo dela Pea and Alexander Pacioles guilty beyond reasonable doubt as principal in Criminal Case No. 92-09-478 for Attempted Murder, defined and penalized under Article 248 in relation to Article 51 of the Revised Penal Code with the aggravating circumstance of evident premeditation on the part of accused Eleuterio Tan only without any mitigating circumstance to offset the same, and applying Indeterminate Sentence Law, sentences accused Eleuterio Tan to a imprisonment of from Two (2) Years, Ten (10) Months and Twenty-one (21) Days of Prision Correccional as minimum to Eight (8) Years, and Twenty-one (21) Days of Prision Mayor as maximum. The aggravating circumstance of evident premeditation being not applicable to the other three accused, the Court hereby sentences accused Leonilo Maranga, Paulo dela Pea and Alexander Pacioles to an Indeterminate Penalty of from One (1) Year, Seven (7) Months and Eleven (11) Days of Prision Correccionalas maximum. Accused Eleuterio Tan, Leonilo Maranga, Paulo dela Pea and Alexander Pacioles are hereby condemned to jointly indemnify the offended party Eduard Villaflor the sum of Twenty Thousand (P20,000.00) Pesos, without subsidiary imprisonment in case of insolvency.

SO ORDERED."7 Dissatisfied with the trial courts decision, accused-appellants interposed an appeal to this Court, basically imputing errors in the trial courts factual findings. After a careful review of the evidence on record, the Court finds that the appeal deserves no merit. The prosecution maintained that accused-appellants suddenly fired upon the victims without warning. On the other hand, the defense argues that Gabitans group was the first to fire shots against them after accused-appellants responded to a report of an alleged bicycle theft. The appeal raises the primary issue of credibility of witness upon which the resolution of all the other issues raised depends. Andres Lapot, owner of the pumpboat, was an eyewitness to the events as they transpired, viz.: Q. A. Q. A. Q. A. Q. A. Immediately upon arrival of the fire truck of Naval, Leyte, what happened? We were immediately strapped. What do you mean by immediately strapped? When the fire truck arrived they immediately opened fire at us. Who were the persons who were opened fire by the accused? All of us. Where? Naval pier. xxx Q. A. Who were the four accused? Pat. Eleuterio Tan, Leonilio Maranga, Alexander Pacioles and Paulo de la Pea. xxx xxx

Q. Pat. Eleuterio Tan in relation to that fire truck of Naval, Leyte, where was he situated when he opened fire? A. Q. A. Q. A. Q. On top of the fire truck. On what particular place on top of the fire truck? On top of the water tank. What was his position when you were fired? He was in a prone position. And what firearm did Eleuterio Tan use?

A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A.

M-16 armalite rifle. What about Pat Leonilo Maranga, in relation to the fire truck where was he? Infront of the fire truck. What particular place in front of the fire truck? End of the front of the fire truck. When the accused fired where was this Leonilo Maranga? Already on the ground but in front the fire truck. What was his distance to the front of the fire truck when he opened fire? Very close. What was the position of Leonilo Maranga when he opened fire? He was standing. Will you please demonstrate how he opened fire? This way. (Witness stands up as if pointing the firearm at the banca.)

Q. A. Q. A. Q. A. Q. A. Q. A.

What was the weapon used if you know? M-16 rifle. Where was Alexander Pacioles in relation to the fire truck? He was at the drivers seat. What about SPO1 Paulo de la Pea, in relation to the fire truck, where was he? At the rear of the fire truck. At the time when he opened fire, what was his position? He was at the rear of the fire truck pointing his firearm at us. What firearm? M-16 rifle.

Q. From what place where Eleuterio Tan opened fire, to the pumpboat, what was the distance? A. 10 to 15 meters.8

With the sudden burst of gunfire, Gabitan was hit with a bullet which produced two wounds, the entrance and the exit wounds. These were fatal wounds, having hit his lungs, a vital organ.9 The wounds caused severe hemorrhage that led to his death. The testimony of Andres Lapot was corroborated by one of the other victims, Juvith Cerilles, who was also on board the pumpboat: Q. What was that incident about?

A. The firetruck suddenly arrived and while the firetruck was still running, I looked at the firetruck. Q. A. Q. A. Q. How far was the firetruck ran, if you can estimate? It was running fast. Where did it stop? It stopped at the pier. How did it stop? xxx A. It stopped and only two jumped. xxx xxx

PROS. TUGONON: Q. A. Q. A. Q. A. Q. A. You said there were two jumped? Yes, sir. How were you able to recognize them when that was in the evening of May 12, 1991? There was an electric light. How far did the firetruck stop in relation to the electric light? Very near. From what part of the firetruck did these two jump? One jumped from the rear, the other one from the front.

Q. Those who jumped from the rear, if you will see them again, were you able to recognize? ATTY. AVILA: Only one. WITNESS: A. Yes, sir.

PROS. TUGONON: Q. Will you please look around from the gallery if the one jumped from the rear is present? We request you to go down from the witness stand and tap the shoulder of the witness. A. Witness goes down from the witness stand and goes to the place where the accused are seated and taps the person who, when asked about his name, he answered that he is Paulo dela Pea. Q. The other one who jumped from the front of the firetruck, were you able to recognize him? A. Yes, sir.

Q. Will you please look around and please go down from the witness stand and tap his shoulder? A. Q. A. Q. Witness goes down from the witness stand and taps the shoulder of Leonilo Maranga. Do you know who was the driver of the firetruck? I can recognize his face. If he is here, please tap his shoulder.

A. Witness goes down from the witness stand and taps the shoulder of PO3 Alexander Pacioles who is present in Court. xxx Q. A. Q. A. xxx xxx

Do you know where Eleuterio Tan was at the time when the firetruck arrived? Yes, sir. Where was Eleuterio Tan? He was on top of the firetruck.

Q. A.

What was his position on top of the firetruck? He was in a prone position.

Q. When the two persons whom you just tapped on the shoulder, one from the rear and one from the front, what happened immediately after that? A. They shot at us with the use of the firearms.

Q. What about Eleuterio Tan, what did he do when you said he was on top of the firetruck? A. Q. A. Q. A. Q. He also fired. And when you said he fired, towards what direction or towards who did they fire? At us on the pumpboat. What about the one who was at the drivers wheel, what did he do? He also fired shots. Witness extends her right hand forward. Towards you and your companions at the pumpboat?

ATTY. AVILA: Leading. PROS. TUGONON: Q. A. Towards what direction was that fire? At us and seamen.10

With nowhere to escape and no place to hide, Cerilles and Villaflor were also hit by bullets fired by accused-appellants. Cerilles sustained five wounds which, as per medical examination, were described as gunshot wounds because of the presence of splinters, i.e., metal objects or pieces of wood embedded in the skin.11 Her wounds were however, non-fatal. Moreover, it was found that the victim was situated at a lower level than the assailants because of the direction of the wounds,12 which confirms the theory that accused-appellants were on a higher elevation than the victims. With respect to Villaflor, the examining physician found that he sustained abrasions on the right leg which were likewise caused by bullets. His wounds are merely considered superficial since they hit only the epidermis of his skin.13 The defense invokes the justifying circumstance of lawful performance of duty.14 For this circumstance to be rightfully appreciated, two requisites must concur: (1) that the accused acted in the performance of a duty or in the lawful exercise of a right or office;

(2) that the injury caused or the offense committed be the necessary consequence of the due performance of duty or the lawful exercise of such right or office.15 Accused-appellants contend that they were only responding to a citizens complaint for theft of bicycle. It was alleged that those who took the complainants bicycle were with the group of Gabitan. When accused-appellant Tan allegedly called for help from his fellow police officers, his coappellants boarded the fire truck and directly went to the pier which was about 3-5 minutes walking distance away. At the pier, they saw a pumpboat which was about to leave the shore. According to the defense, someone on board the pumpboat fired a shot at them which impelled them to return fire. This version is improbable in the light of the evidence on record and is contrary to the defense of lawful performance of duty. First, contrary to his assertion, accused-appellant Tan was positively identified by prosecution witnesses drinking beer inside the disco house prior to the incident.16 At least three witnesses testified that he was not wearing a uniform, but maong pants,17 white T-shirt and slippers.18 If it were true that he was on patrol, he should not be inside the disco house drinking and he should be in the prescribed police uniform. The duty to patrol means that the officer is not on undercover police work, wherein he may not wear the proper police uniform because of the nature of the police operation. To conduct patrol work necessitates the physical presence of the officer in the street or in public places where he will be immediately recognized through his uniform as a police officer. Hence, accused-appellant could not have been on patrol duty, especially since he was seen drinking beer inside an entertainment house. Second, it is strange that a fire truck was used by accused-appellants in the pursuit of the alleged thieves. Assuming for the sake of argument that accused-appellants were responding to a call, they would not position themselves on top of the water tank of the truck where they would be prone to any attack from the suspects. Assuming further that there was a complaint for theft, the usual procedure should have been to search for the suspects, and if they are located, to apprehend them employing the least force as may be necessary to effect a lawful arrest without warrant. Under Rule 113 of the Rules of Court then in force: Sec. 2. x x x. No violence or unnecessary force shall be used in making an arrest, and the person arrested shall not be subject to any greater re straint than is necessary for his detention. Although the employment of high powered firearms, which in this case were M-16 rifles, does not necessarily connote unnecessary force, the police had no reason to fire their weapons indiscriminately at a group of persons on board a moving boat. The Rules of Court mandates that the police officer or any person conducting arrest must identify himself as such and state his intention to arrest when there is no danger to himself or it would not prejudice the arrest.19 Further, the rules of engagement, of which every police officer must be thoroughly knowledgeable and for which he must always exercise the highest caution, does not require that he should immediately draw or fire his weapon if the person asked or to be accosted does not heed his call. Pursuit without danger should be his next move and not vengeance for personal feelings or a damaged pride. Police work requires nothing more than the lawful apprehension of suspects since the completion of the process pertains to other government officers or agencies. The victims in this case and all those on the pumpboat were not under any obligation to surrender since they were not prisoners who had escaped from detention, nor were they identified suspects. Not even the presumption of regularity in the performance of duty20 can be resorted to by appellants, nor does it find application in this case because they were no longer performing a duty when they immediately fired their weapons.

Third, the evidence does not support the contention that it was Gabitan who was the first to shoot. There were no powder burns on Gabitans hands to indicate that he fired a gun. Rather, when his dead body was recovered and brought to the Naval Police Station, his .38 caliber gun was still tucked in his waist.21 Fourth, when Acorda asked for accused-appellant Tans badge, the latter instead drew his gun. Whenever a police officer introduces himself as such, he must show his police identification card or badge. Persons who deal with the police need not even ask for the officers identification papers because the officer should have taken the initiative outright. His service firearm is not an identification card. The best and immediate evidence of police identity is the badge, the ID and the proper uniform. It is a basic norm of police work, particularly when approaching a stranger with whom he has no prior contact, not just to introduce himself properly but also to present his police badge and ID. Finally, the party who invokes a justifying circumstance has the burden of proof. Failure on their part to discharge that burden justifies their conviction because of their admission of having authored the criminal act. This is the essence of a justifying circumstance which applies not only to self-defense cases but equally to the defense of performance of duty. For this reason, the Rules of Court allows the reversal of proceedings by requiring the party who invokes a lawful defense to present evidence ahead of the prosecution.22 Accused-appellants defense cannot be given credence because the uncovered vessel was riddled with no less than 33 bullets holes,23 in addition to those which hit the three victims. This could not have been self-defense, but plain and simple revenge for the trivial reason that accused-appellant Tans girlfriend danced with and allowed her thigh to be touched by another man. Moreover, the defense of performance of duty, as an affirmative allegation, should be demonstrated with convincing credibility.24 Accused-appellants version is lacking in truth, aside from being a mere afterthought and contrary to human nature. The physical evidence in this case runs counter to the testimonial evidence, in which case the former prevails.25 Physical evidence is a mute but eloquent manifestation of truth, and it ranks high in the hierarchy of our trustworthy evidence.26 Being situated on a higher level than the pumpboat, the life of accused-appellants cannot be said to have been in immediate peril. As such, their judgment of firing at an "escaping" pumpboat was highly unjustifiable. The mere fact that their verbal warning or warning shots were not heeded was no justification to spray bullets on those persons on board. Accused-appellants should have known, as they ought to have known, that there were unarmed waitresses on board the pumpboat. As mentioned earlier, the ultimate question, where the factual version of the prosecution and the defense contradict each other as in this case, is one of credibility of witness. Such issue is best left to the trial court because of its unique opportunity of having observed that elusive and incommunicable evidence of the witness deportment on the stand while testifying, an opportunity denied to the appellate courts,27 which usually relies on the cold pages of the silent records. In this case, it was not convincingly shown that the court a quo had overlooked or disregarded significant facts and circumstances which when considered would have affected the outcome of the case28 or would justify a departure from the assessments and findings of the court below. The foregoing disquisition clearly demonstrates that the trial courts findings of facts are binding on this Court although not necessarily with respect to its conclusion drawn from such facts. Assuming that accused-appellants first fired warning shots into the air to stop the pumpboat or that those on board suddenly fired at them, neither of these justified accused-appellants to spray the moving pumpboat with live bullets hitting it at least 33 times. There is nothing in the records which shows that accused-appellant were positive that those on board the pumpboat were the alleged thieves. The mere fact that a pumpboat is moving cannot justify their acts of firing upon the vessel

even if they may have presumed that the persons on board were fleeing from the police. The pumpboat was found moving away from the shore because its passengers were bound for the foreign vessel docked kilometers away from the shore. There is treachery if the attack was so sudden and unexpected that the deceased had no time to prepare for his defense.29 When Lapot, Gabitan, Villaflor, Cerilles, the two other waitresses and the rest of the group were already in the pumpboat, they were suddenly fired upon by accusedappellants. Placed in that dangerous situation, their only means of escape was to be far from the reach of the bullets. The remaining immediate option was to move the pumpboat as fast as they can towards the sea. Those on board had no time to prepare for any defense or even to seek cover. Under these circumstances, the suddenness and severity of the attack constituted treachery.30 It could not be reasonably said that the victims should have expected accused-appellant Tan to chase them after the latter left them outside the disco house. Moreover, from the point of view of accusedappellants one of whom was standing on top of the firetruck while another was at the rear of the truck they were in a more advantageous position considering that the fire truck was on a higher level than the pumpboat. The pumpboat had no hard covering from which Gabitans group could hide and protect themselves from the burst of gunfire. Not even the sea would be a good shelter for the bullets can easily penetrate the water. For evident premeditation to be appreciated, the following elements must be proved as conclusively as the crime itself, i.e., by proof beyond reasonable doubt:31 (1) The time when the accused decided to commit crime; (2) An overt act manifestly indicating that he has clung to his determination; (3) Sufficient lapse of time between decision and execution to allow the accused to reflect upon the consequences of his act.32 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.33 To be considered, it is indispensable to show how and when the plan to kill was hatched or how much time had elapsed before it was carried out. Premeditation must be based on external acts which must be notorious, manifest, and evident34 not merely suspecting indicating deliberate planning. In this case, there was no proof, direct or circumstantial, offered by the prosecution to show when accused-appellant Tan and his co-accused meditated and reflected upon their decision to kill the victim and the intervening time that elapsed before his plan was carried out. Between the time when accused-appellant Tan confronted Acorda and the time of the shooting of the pumpboat, there was only one continuing act during which there was no possible time of reflection. There was a lapse of at most only twenty minutes from the time of the confrontation outside the disco house up to the ambush at the pier, a period not enough for cool mind to set in. Evident premeditation cannot be presumed from the external acts alone. Mere suppositions or presumptions, no matter how truthful, cannot produce the effect of aggravating the liability of the accused.35 Though no evident premeditation was proven, conspiracy can be clearly inferred from the acts of accused-appellants. There is conspiracy when two or more persons come to an agreement concerning the commission of a felony and the execution of the felony is decided upon.36 It is not necessary that there be direct proof that the co-conspirators had any prior agreement and decision to commit the crime, it being sufficient that the malefactors shall have acted in concert pursuant to the same objective.37 Conspiracy arises on the very instant the plotters agree, expressly or impliedly, to commit the felony and forthwith decide to pursue it. So that whenever conspiracy is proven the act

of one is the act of all.38 When the fire truck arrived at the pier and stopped near the lamp post, accused-appellants immediately proceeded to their respective positions at different locations of the truck with their firearms pointed towards the pumpboat. When their alleged call to stop the pumpboat went unheeded, they just suddenly fired at the persons on the moving pumpboat. Firing simultaneously their high-powered weapons and directing it towards the vessel indicate nothing more but a clear case of concerted action designed to accomplish the same purpose. Murder is committed when a person kills another and the killing is attended by any modifying circumstance such as evident premeditation and treachery.39 The circumstance of treachery alleged in the Information qualified the killing of Gabitan to murder.
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However, the Informations in the two attempted murder cases failed to allege the essential elements necessary to convict accused-appellants of the said crimes. In particular, there was nothing in the latter two Informations from which it may be concluded that accused-appellants commenced the commission of the felony directly or by overt acts and did not perform all the acts of execution which should have produced the felony by reason of some cause or accident other than their own spontaneous desistance.40 Without these allegations, the elements necessary to constitute the felony of attempted murder cannot be said to have been properly alleged, and accused-appellants cannot be convicted of a crime with which they were not charged. Otherwise, to convict them of attempted murder, when the same is not the crime charged in the Information, would be to violate their constitutional and statutory right41 to criminal due process, and in particular, their right to be informed of the nature and cause of the accusation against them.42 It must be remembered that it is not the designation of the offense in the Information described by the prosecution that governs, rather it is the allegations in the Information that must be considered in determining what crime is charged.43 All that the Informations alleged was that accused-appellants fired and discharged their M-16 rifles against the moving pumpboat, hitting and wounding the injured complainants, who required medical attention. Clearly, these bare allegations are not enough to sustain a charge for attempted murder. At most, based on the allegations in the Information in Criminal Case Nos. 92-09-477 (1531) and 9209-478 (1532), accused-appellants can be convicted only of physical injuries -- a lesser felony absorbed in the crime of attempted murder. At any rate, the Rules sanction a conviction for a crime which is necessarily included in the crime charged, so long as the former is proven.44 Cerilles and Villaflor suffered superficial wounds, but despite accused-appellants manifest intent to kill, it cannot bring forth a conviction for attempted murder because of the insufficient allegation in the information to warrant conviction for such crime. The next issue to determine is the character of the physical injuries they sustained. According to the physician who examined the victims, the five wounds sustained by Cerilles on the different parts of her body were non-fatal.45 Her wounds, barring any complications, may heal in seven to eight days. With respect to Villaflor, the abrasions he sustained may heal in 2 to 3 weeks time. In fact, Villaflor did not even return to the doctor for further medical attention, first aid treatment being enough.46 Injuries which require medical attention for a period of at least 10 but not more than 30 days is classified as less serious, falling under Article 265 of the Revised Penal Code. On the assumption that a doubt exists as to the legal propriety of the allegations in said two Informations whether it is attempted murder or physical injuries such doubt should be resolved by convicting the accused only of physical injuries instead of attempted or frustrated murder or homicide,47 if the evidence warrants such conviction. No aggravating circumstance can be considered against accused-appellants for the death of Gabitan. Although treachery is also a generic aggravating circumstance, it can no longer be considered again since it already qualified the killing to murder. The Information in Criminal Case No. 92-09-477, which involved the wounding of Cerilles, contained no allegation of treachery. It

cannot therefore be considered even if it was proven during trial. On the other hand, the proof of treachery and its allegation in the Information in Criminal Case No. 92-09-478 may be appreciated against accused-appellants. As for the aggravating circumstance of evident premeditation, though it was alleged in the Information, the prosecution failed to establish it with the required quantum of proof as discussed above; hence the same cannot be appreciated. At the time of the commission of the crime in 1991, the penalty imposed for murder was reclusion temporalmaximum to death. The higher penalty of reclusion perpetua to death, prescribed by R.A. 7659 which took effect after the commission of the crime in this case, cannot be given retroactive effect because it is unfavorable to accused-appellants.48 Under Article 64 of the Revised Penal Code, when the penalty prescribed is composed of three periods and there is neither mitigating nor aggravating circumstance, the penalty shall be imposed in its medium period,49 which is reclusion perpetua.50 No indeterminate sentence can be imposed on accused-appellants because of the proscription of its applicability in cases where the penalty imposed is reclusion perpetua.51 As for the other two cases, the crimes committed are less serious physical injuries and slight physical injury. The penalties for these are prescribed in Article 265 and 266 of the Revised Penal Code, the relevant portions of which read: Art. 265. Less serious physical injuries. Any person who shall inflict upon another physical injuries not described in the preceding articles, but which shall incapacitate the offended party for labor for ten days or more, or shall require medical assistance for the same period, shall be guilty of less serious physical injuries and shall suffer the penalty of arresto mayor. Whenever less serious physical injuries shall have been inflicted with the manifest intent to kill or offend the injured person, or under circumstances adding ignominy to the offense in addition to the penalty of arresto mayor, a fine not exceeding 500 pesos shall be imposed. Art. 266. Slight physical injuries and maltreatment. The crime of slight physical injuries shall be punished: 1. By arresto menor when the offender has inflicted physical injuries which shall incapacitate the offended party for labor from one to nine days, or shall require medical attendance during the same period. (emphasis supplied). The injuries sustained by Villaflor will heal in 2 to 3 weeks. However, considering that the intent to kill was manifest because of the sporadic burst of high-powered firearms, the crime of less serious physical injury is qualified, in which case the imposition of the additional penalty of fine as provided in the second paragraph of Article 265 is warranted. On the other hand, the crime of slight physical injuries, committed against Cerilles, is penalized by arresto menor. The Indeterminate Sentence Law likewise does not apply in these two cases since said law excludes from its coverage cases where the penalty imposed does not exceed one year.52 The trial court held accused-appellants solidarily liable to the heirs of Gabitan for P200,000.00, and another P20,000.00 each to Juvith Cerilles and Edward Villaflor as indemnity. In murder, the civil indemnity has been fixed by jurisprudence at P50,000.00.53 The grant of civil indemnity in murder requires no proof other than the fact of death as a result of the crime and proof of appellants responsibility therefor.54 On the other hand, the separate award of moral damages is justified because of the physical suffering and mental anguish brought about by the felonious acts, and is

thus recoverable in criminal offenses resulting in physical injuries or death.55 The amount of moral damages is also fixed at P50,000.00 for murder.56 For the less serious physical injuries, moral damages of P10,000.00 shall be sufficient. Exemplary damages can be granted only in cases where there is an aggravating circumstance.57 WHEREFORE, the decision of the trial court is AFFIRMED subject to the following MODIFICATIONS: (1) Accused-appellants are found guilty of MURDER in Criminal Case No. 92-09-343 and each is sentenced to suffer the penalty of reclusion perpetua. (2) Accused-appellants are found guilty of LESS SERIOUS PHYSICAL INJURIES in Criminal Case No. 92-09-478 and each is sentenced to suffer imprisonment of six (6) months of arresto mayor maximum, AND pay a fine of P500.00 each. (3) Accused-appellants are found guilty of SLIGHT PHYSICAL INJURIES in Criminal Case No. 92-09-477 and each is sentenced to suffer imprisonment of thirty (30) days of arresto menor. (4) All penalties shall be served successively. (5) Accused-appellants are ordered to solidarily pay: A. To the heirs of Gabitan, the reduced amount of P50,000.00 as civil indemnity and P50,000.00 as moral damages; b. To Villaflor, moral damages of P10,000.00 in addition to the civil indemnity of P20,000.00 awarded by the trial court; and c. To Ceriles, moral damages of P10,000.00 in addition to the civil indemnity of P20,000.00 awarded by the trial court; and d. Exemplary damages in the amount of P10,000.00 each to Villaflor and Cerilles. No subsidiary imprisonment shall be imposed in case of insolvency. (6) Costs de oficio. SO ORDERED. Davide, Jr., C.J. Puno, Kapunan, Pardo, JJ., concur.

Republic of the Philippines SUPREME COURT Baguio City SECOND DIVISION G.R. No. 142500 April 20, 2001

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. DECOROSO ACA-AC y CESPON, accused-appellant. MENDOZA, J.: This is an appeal from the decision,1 dated February 19, 1994, of the Regional Trial Court, Branch 4, City of Tagbilaran, finding accused-appellant Decoroso Aca-ac y Cespon, alias "Kokong," guilty of frustrated rape and sentencing him to suffer the indeterminate penalty of imprisonment from twelve (12) years of prision mayor, as minimum, to seventeen (17) years, four (4) months, and one (1) day of reclusion temporal, as maximum, with accessory penalties, and to indemnity the complainant Fritzie Aca-ac the amount of P30,000.00 as moral damages and P20,000.00 as exemplary damages. Originally taken to the Court of Appeals, the appeal was certified to this Court pursuant to rule 124, 13 of the Revised Rules on Criminal Procedure in view of the appeals court's ruling2that accused-appellant is guilty of consummated, not frustrated, rape and that the appropriate penalty to be imposed on accused-appellant is reclusion perpetua. The facts are as follows: On the basis of criminal complaints3 of the minor Fritzie Aca-ac, four informations4 for rape were filed against accused-appellant in the Regional Trial Court of Tagbilaran City. In Criminal Case No. 7091, the information alleged: That on or about the 22nd day of September, 1990 at Barangay Villalimpia, Municipality of Loay, Province of Bohol, Philippines and within the jurisdiction of this Honorable Court, the above-named accused through craft, lured and brought the victim Fritzie Aca-ac, a minor below twelve years of age, to the former's house and to his bedroom and thereafter, with intent to have sexual intercourse, removed the victim's panty, let her lie down while he lay on top her, inserted his penis into her labia minora near the clitoris of the vagina and succeeded in having carnal knowledge with the victim with her vitiated consent since she is below twelve years old, to the damage and prejudice of the said offended party. CONTRARY TO LAW. In Criminal Case No. 7092, the information charged: That on or about the 17th day of October, 1990 at Barangay Villalimpia, Municipality of Loay, Province of Bohol, Philippines and within the jurisdiction of this Honorable Court, the abovenamed accused through craft, lured the victim Fritzie Aca-ac, a minor below twelve years of age to remove her shorts and panty and to lie down on the ground, and thereafter, the accused inserted his penis into her vagina near the clitoris and vaginal opening and

succeeded in having carnal knowledge with the victim with her vitiated consent since she is below twelve years old, to the damage and prejudice of the said offended party.
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CONTRARY TO LAW. In Criminal Case No. 7093, the information alleged: That on or about the 12th day of January, 1991 at Barangay Villalimpia, Municipality of Loay, Province of Bohol, Philippines and within the jurisdiction of this Honorable Court, the abovenamed accused through craft, lured the victim Fritzie Aca-ac, a minor below twelve years of age to go to a bushy place near a nipa plantation, and, upon reaching the place, let her undress and lie down while he lay on top of her, and thereafter, he inserted his penis inside her vaginal opening near her clitoris and succeeded in having carnal knowledge with the victim with her vitiated consent since she is below twelve years old, to the damage and prejudice of the said offended party CONTRARY TO LAW. In Criminal Case No. 7094, the information asserted: That on or about the 8th day of September, 1990 at Barangay Villalimpia, Municipality of Loay, Province of Bohol, Philippines and within the jurisdiction of this Honorable Court, the above-named accused through craft, lured and brought the victim Fritzie Aca-ac, a minor below twelve years of age, to an old uninhabited house, and thereafter, upon reaching the place, took off her shorts and her panty with intent to ace sexual intercourse with her and then let her lie down after which the accused lay on top of her and inserted his penis into the labia minora near the clitoris of the vagina of the victim and succeeded in having carnal knowledge with her vitiated consent since she is below twelve years old, to the damage and prejudice of the aid offended party. CONTRARY TO LAW. Accused-appellant having pleaded not guilty to the charges, the joint trial of the cases was set. Five witnesses were presented by the prosecution in support of its case, namely, complainant Fritzie Acaac, her mother, Felipa Aca-ac, her classmate, Algerico Lonio, the physician, Dr. Stella Maris J. Amora, and rebuttal witness Esteban Dagandan. In Criminal Case No. 7094, complainant testified that on September 8, 1990, she was asked by her mother Felipa Aca-ac to buy cooked fish (inon-onan) for dinner from a store in Barangay Villalimpia, Loay, Bohol. On her way home, she met accused-appellant, who held her by the hand and forced her to go with him to the vacant house of one Pinay Aguirre. Once inside, accused-appellant removed complainant's shorts and panty and made her lie down on the floor, which was covered with coconut leaves. Complainant claimed that accused-appellant fondled her breasts and licked her private parts. He then went on top of her and made "push and pull movements." When he was through, complainant said, accused-appellant withdrew his penis and white fluid came out. Complainant said she then wiped her private parts and put on her cloths. She said she did not tell anyone what happened to her.5 Algerico Lonio, a resident of Barangay Villalimpia, Loay, Bohol and a classmate of complainant testified that at about 7:00 p.m. of September 8, 1990, he was at the house of one Emmie Blasco when he saw accused-appellant and complainant going inside the house of Pinay Aguirre, which was known in the neighborhood to be haunted. Out of curiosity, he said, he followed the two and

peeped through the fence at the back. He saw accused-appellant undress complainant, go on top of her, and make "push and pull movements." Lonio said he knew that the two were having sexual intercourse, which lasted for about three minutes. He claimed he did not tell anyone what he saw for fear of his life. But, Lonio said, on February 27, 1991, he and complainant had a quarrel in school during which he asked complainant about the rape. According to Lonio, complainant admitted that accused-appellant had raped her and then left crying. Lonoi later narrated the incident to complainant's mother.6 In Criminal Case No, 7091, complainant testified that at about 4:00 p.m. of September 22, 1990, after gathering some guavas in Barangay Villalimpia, Loay, Bohol, she passed by the house of accused-appellant on her way home. When accused-appellant saw her, he tried to lure her on the pretext that he had some papayas for her. Complainant got inside the house, but sensing that there was no papaya in the house, she immediately tried to leave. Accused-appellant, however, closed the door and brought her to his bedroom where he raped her. Accused-appellant threatened her with harm if she told anyone about the incident.7 In Criminal Case No. 7092, complainant testified that at about 4:30 p.m. of October 17, 1990, as she was gathering firewood in Barangay Villalimpia, Loay, Bohol, accused-appellant came and forced her to remove her shorts and panty. She was made to lie down on the ground covered with nipa leaves and was then raped by accused-appellant. Complainant went home after the incident, bringing with her the firewood she had gathered.8 In Criminal Case No. 7093, complainant testified that at about 1:00 p.m. of January 12, 1991, as she was on her way home from the house of a certain Betty, she saw accused-appellant near the house of one Ned Reyes in Villalimpia, Loay, Bohol. Accused-appellant seized her and dragged her to a bush near the plantation and made her undress and lie down. Then he allegedly forced her to have sexual intercourse with him.9 Complainant's mother, Felipa Aca-ac, testified that accused-appellant is the cousin of her father-inlaw, Faustino Aca-ac. She said that in the afternoon of February 27, 1991, she learned from Lonio that her daughter had been raped by accused-appellant. She said that when she confronted her daughter, the latter admitted that accused-appellant had raped her four times. According to her, the next day, February 28, 1991, she took Fritzie to Dr. Stella Maris J. Amora of the Governor Celestino Gallares Memorial Hospital for medical examination. Felipa said that accused-appellant offered to pay P12,000.00 as settlement of the case.10 Dr. Amora testified that there was no laceration in the hymen of complainant. She said, however, that it was possible that there could be a penetration of a male organ up to the labia minora and the hymen would still be intact.11 The defense presented six witnesses, namely, accused-appellant Decoroso Aca-ac, Faustino Acaac, Felix Adorable, Rosalio Pamayloan, Petronia Aca-ac, and Alberto Cempron. Accused-appellant Decoroso Aca-ac y Cespon, 57 years old at the time of the alleged rape incidents, denied the charges and claimed that Felipa Aca-ac had instigated complainant to file the charges because he told Felipa's husband that Felipa was having an affair with another man. He said the charges because he told Felipa's husband that Felipa was having an affair with another man. He said the charges were trumped up by Felipa because she wanted to extort P30,000.00 from him. He also stated that he had a quarrel with Felipa's husband, Roberto, because the latter had stolen his chicken. Accused-appellant said he reported the matter to Barangay Captain Felix Adorable. He stated that Faustino Aca-ac tried to get the parties to settle the case, but he failed in

his efforts. Accused-appellant alleged that at 57, he was already old and that he could no longer have an erection.12 Faustino Aca-ac, grandfather of complainant and a cousin of accused-appellant, testified that he did not believe accused-appellant committed the crime. He said accused-appellant and complainant's parents had a misunderstanding which he tried to settle insuccessfully.13 Felix Adorable, a former barangay captain of Villalimpia, Loay Bohol and an incumbent barangay kagawad, confirmed accused-appellant's claim that he had filed a complaint against Roberto Aca-ac, complainant's father, with the Katarungang Pambarangay.14 Rosalio Pamayloan was a neighbor of accused-appellant and a resident of Villalimpia, Loay, Bohol for 12 years. He testified that he had been a principal in a public school since 1983. He personally knew accused-appellant and vouched for the character of accused-appellant as a good man.15 Petronia P. Aca-ac, wife of accused-appellant, testified that she and her husband had been married for 36 years and had six children, two of whom had died. On the four occasions on which it was alleged accused- appellant had raped complainant, Petronia said her husband was in their house helping her make "nipa shingles."16 On rebuttal, the prosecution presented Esteban Dagandan, who testified that complainant's mother, Felipa, worked as a nurse of his (Dagandan's) wife, because the latter had suffered a stroke. Dagandan disputed accused-appellant's claim that complainant and her mother had demanded P30,000.00 for the settlement of the case. He said that sometime in May 1992, Albert "Berting" Cempron, a nephew of accused- appellant, accompanied by his wife Lydia, thrice went to his (Dagandan's) house asking Felipa to withdraw the case against accused-appellant. Accusedappellant offered to pay Felipa P12,000.00 as settlement of the case, but the same was rejected.17 Felipa Aca-ac was recalled to the stand. She denied Rosalio Pamayloan's testimony that she proposed a settlement of the case for P30,000.00 and that accused-appellant had no criminal record in their barangay. She said that she rejected Albert Cempron's P12,000.00 offer, made in behalf of accused-appellant, for the settlement of the case.18 Complainant Fritzie Aca-ac was also recalled to the stand. She rebutted the testimony of accusedappellant that he could no longer have an erection. She said she saw accused-appellant insert his erect penis into her vulva.19 On sur-rebuttal, Alberto A. Cempron, the barangay captain of Matin-aw, Carmen, Bohol, testified that he tried to bring the parties to an amicable settlement of their case because they are relatives and his wife is a cousin of complainant's father. However, he said he was unsuccessful as accusedappellant's wife was willing to pay only P12,000.00 but Felipa wanted P30,000.00.20 On February 19, 1994, the trial court rendered a decision convicting accused-appellant of frustrated rape in Criminal Case No. 7094 and acquitting him of the charges in the rest of the cases. The dispositive portion of its decision reads: WHEREFORE, under Criminal Case No. 7094, the Court finds accused Decoroso Aca-ac y Cespon guilty beyond reasonable doubt of the crime of frustrated rape and he is hereby sentenced to undergo an indeterminate penalty of imprisonment ranging from twelve (12) years of prision mayor, as minimum, to seventeen (17) years, four (4) months and one (1) day of reclusion temporal, as maximum, with all its accessory penalties, to indemnify the

offended party Fritzie Aca-ac the sum of P30,000.00 as moral damages and another amount of P20,000.00 in the concept of exemplary damages. As regards the three other above-entitled cases, Criminal Case Nos. 7091, 7092, & 7093, all for rape, accused Decoroso Aca-ac y Cespon, alias Kokong, is hereby acquitted on the ground of reasonable doubt. SO ORDERED.21 On appeal, the Court of Appeals held that accused-appellant was guilty of consummated rape and accordingly sentenced him to reclusion perpetua. Hence, this appeal. First. In holding that the crime committed was frustrated rape, the trial court relied on the findings of Dr. Amora which showed that complainant did not have any lacerations in her hymen which in fact was intact. The trial court pointed out that there was no evidence of penetration into the vagina of complainant. This is error. As this Court explained in People v. Orita,22 rape is either attempted or consummated. There can be no frustrated rape. While the penultimate paragraph of Art. 335 of the Revised Penal Code23 prescribes death for attempted or frustrated rape, and a homicide committed by reason or on the occasion thereof, the provision on frustrated rape is a "dead provision." This Court said in Orita: Clearly, in the crime of rape, from the moment the offender has carnal knowledge of his victim, he actually attains his purpose and, from that moment also all the essential elements of the offense have been accomplished. Nothing more is left to be done by the offender, because he has performed the last act necessary to produce the crime. Thus, the felony is consummated. In along line of cases (people v. Oscar, 48 Phil. 527 (1925); People v. Hernandez, 49 Phil. 980 (1925); People v. Royeras, 56 SCRA 666 (1974); People v. Amores, 58 SCRA 505 (1974)), we have set the uniform rule that for the consummation of rape, perfect penetration is not essential. Any penetration of the female organ by the male organ is sufficient. Entry of the labia or lips of the female organ, without rupture of the hymen or laceration of the vagina, is sufficient to warrant conviction. Necessarily, rape is attempted if there is no penetration of the female organ (People v. Tayaba, 62 Phil. 559 (1935); People v. Rabadan and Olaybar, 53 Phil. 694 (1927); United States v. Garcia, 9 Phil. 434 (1907)) because not all acts of execution were performed. The offender merely commenced the commission of a felony directly by overt acts. Taking into account the nature, elements, and manner of execution of the crime of rape and jurisprudence on the matter, it is hardly conceivable how the frustrated stage in rape can ever be committed.24 As the Court of Appeals noted, accused-appellant should be convicted of rape in its consummated stage and not merely for frustrated rape, since the entry of the male organ into the labia of the female organ alone is sufficient to constitute consummated rape. For that matter, the mere touching of the labia or pudendum by the male organ is enough to consummate the crime of rape.25 It is enough that there is a penetration, however slight, of the external genitalia.26 Consequently, the fact that there was no laceration of complainant's private parts or that her hymen was intact, as testified to by Dr. Amora,27 does not preclude a finding of rape against accused-appellant. It bears emphasis that a broken hymen or laceration of any part of the female genital is not a pre-requisite for a conviction for rape.28

Accused-appellant's claim that it was impossible for him, then 57 years old, to commit the crime of rape because he could no longer have an erection is self-serving. Age is not the criterion in determining sexual interest and potency. The birth certificate (Exh. C) of complainant shows that she was born on April 9, 1979. Since complainant was then about 11 years old when she was raped by accused-appellant on September 8, 1990, the crime is statutory rape under Art. 335, paragraph 3 of the Revised Penal Code. Second. Accused-appellant contends that the way complainant narrated the lurid details of how she was allegedly raped is not the way an innocent child below 12 years of age testifies, but the way a woman, who is worldly and experienced in sex, will testify. Accused-appellant questions complainant's narration as he likens them to stories contained in pornographic magazines and movies. The contention has no merit. Where an alleged rape victim says she was sexually abused, she says almost all that is necessary to show that rape had been inflicted on her person, provided her testimony meets the test of credibility.29 For no woman would allow an examination of her private parts or go through the humiliation of a trial unless she has actually been so brutalized that she desires justice for her suffering.30 In this case, accused-appellant has not shown any reason for complainant's testimony not to be given credence. At the time she was raped, complainant was an 11 year-old Grade 5 student of Loay Central School in Loay, Bohol. After she was deflowered by accused-appellant, she was forced to silence by threats on her life. It was only on March 1, 1991 when she executed a sworn statement31 before the police authorities narrating therein how she had been raped four times by accused-appellant. She told her story in open court. Complainant testified how she was raped on September 8, 1991, thus: ATTY. ALEXANDER H. LIM: QANow, what happened after your short pants and panty were removed? That was the time that I squatted, I have no more panty and short pants.

Q.Now, when you said you were squatting, did it not occur to your mind to run away or shout? AQANo, I did not. And so what happened after that? He pushed down my knees and caused me to lie down.

COURT: QYou mean the accused pushed down your knees and thereafter pushed your body causing you to lie down face up? AWhen he pushed down my knees, so I squatted at that time and he also pushed my shoulder that caused me to lie down on my back.

ATTY. ALEXANDER H. LIM: QAQAAfter that what happened next? He kissed me on the lips. Now, when he did that to you, did you not resist? I did not.

COURT (TO WITNESS) QAWhy did you not like to be kissed by the accused at that time? I tried to avoid his kiss but he held my hands.

ATTY. ALEXANDER H. LIM: QAQAQAQAQAQAQAQANow, did you not bite him? When you did not like his kiss? I did not. Still you did not offer any resistance to shout? I resisted but he held my hands. Why did you tell the Court that you uttered something? I told him. Meaning your voice was not heard? He told me not to shout. Why did you not shout the way that it could be heard by your neighbors? Because he told me not to make any noise for he will kill me. Is that all? Yes, sir. But he did not carry any weapon? No, sir. Now, after that kiss on your lips, what happened next? He sucked my nipples.

QAQ-

Did you not push him when he sucked your nipples? I held the back of his head. How did he suck your nipples?

FISCAL REINERIO S. NAMOCA TCA T: Is there a particular way of sucking nipples? ANSWER OF WITNESS: He raised my t-shirt. ATTY. ALEXANDER H. LIM: QAQAQAQAQASo, he raised your t-shirt in sucking your nipples? Yes, sir Still in raising your t-shirt, you did not shout? I told him don't, but he did not heed. Still in a low voice? Yes, sir. You did not shout loudly? I did not because he told me if I will make a noise or report the matter, he will kill me. You were afraid of him when you said he did not hold any weapon? I was afraid he would box me.

COURT: Any further questions? ATTY. ALEXANDER H. LIM: QNow, at that time according to you he sucked your nipples, you did not consider that you were already endangered? AQI have not known of such danger. After that, what happened next?

AQAQAQAQAQA-

He also sucked the other nipple. So, the two nipples were sucked? Yes, sir. So, what happened after that? He licked my vagina. When he licked your vagina, you did not shout or protest? I told him don't, I tried to stand up but he pushed me and pressed my forehead. At that moment he was very busy licking your vagina, what else did he do? He pressed my forehead. While he was licking your vagina, you pushed his head? I pushed his forehead.

COURT: QDid you succeed when you stand up after pushing the forehead of the accused?

ABecause of his strength, when I stood up, he held my hand and I was made to lie down again. QAQAQAQAWhile he was licking your vagina, where was the hand of the accused? When I pushed the forehead, he was licking my vagina. So, what happened after that? He mounted on me. Before that, while the accused was licking your vagina, were your legs apart? Because my legs were apart, he licked my vagina. You made it voluntarily or the accused made it apart? I was the one who spread my two legs.

ATTY. ALEXANDER H. LIM: QIn doing so, when you spread your legs, the accused used his two hands?

AQA-

Yes, sir, he used his two hands. At the same time he was licking your vagina? Yes, sir.

QAnd in that very moment you could stand up or you could squat or use your hand to fight back or to resist? AQI tried to rise up and pushed his forehead. And you succeeded in rising up pushing his forehead?

AAfter I pushed his forehead, he crawled and held my hands and let me lie down again. QAQAQAQAQAQAIn that process, did you not shout? I did not shout, I was afraid he might press me. But he did not press you? But he told me if I will make noise, he will kill me. Now, after that what happened? He mounted on me. His whole weight mounted on you? Yes, sir, his whole body. And how did you feel? I cannot push his head because he held my hands this was the time I could not move. So, he was holding your hands and you could cross your leg if you want to? I cannot cross my legs because his two legs were over me.

COURT (TO WITNESS): QYou mean his body was over your spread legs while mounting from the licking until he mounted on you? AYes, sir, his body was over my two legs.

COURT: Any further questions?

ATTY. ALEXANDER H. LIM: QAQANow, what happened after that? He made a push and pull movement. What did you feel when he was doing that act of push and pull movement? There was something hot that I felt on my vagina.

COURT: Why did you feel something hot in your vagina? Afluid. QAIt seems that there was something hot that went out from my vagina. It was a sticky

.Where did the fluid come from? May be it came out when he put his penis on my vagina.

QDid you feel the hot fluid coming from the penis of the accused and did you feel inside your vagina or from the labia of your vagina? AThe penis was inside my vagina because he tried to make way to the large opening of my vagina so that his penis will enter. QADid you feel the penis of the accused penetrating your vagina? Yes, sir, it went inside.

COURT (TO WITNESS) QWhat happened to your vagina, did it bleed when the penis of the accused entered your vagina? AQAThe penis did not enter but just inside the opening of my vagina. You mean in the vulva of your vagina? It was not inside the opening of the vagina but near the clitoris.

QSo, you are now changing your testimony, you said earlier that the penis of the accused penetrated your vagina and now you are changing your testimony by saying that the penis of the accused only touched the clitoris of your vagina? FISCAL REINERIO S. NAMOCATCAT:

The witness is trying to say to enter the mouth of the vagina until the clitoris. This child is still very young to demonstrate the fact that the penetration was made up to the labia minora of the victim.32 Her consistent testimony despite intense and lengthy interrogation33 belies accused-appellant's claim that she was telling a tale culled from pornographic magazines or movies. Faced with complainant's testimony, accused-appellant could only offer the defense of denial. It is well-settled that denial cannot prevail over the positive identification and categorical testimony of complainant. The rule is that between the positive declarations of the prosecution witnesses and the negative statements of the accused, the former deserves more credence.34 That is why accused-appellant had to summon to his aid an alleged affidavit of desistance (Exh. 3) of complainant and her mother. But how could this bind complainant and her mother or prove anything when the so-called affidavit is unsigned? Third. Accused-appellant says complainant did not immediately report the incidents to the authorities nor tell the same to her mother. He claims that the cases were filed merely to extort money from him. These claims have no basis. The fact that complainant did not immediately report the matter to the authorities was fully explained by the prosecution. Complainant was only 11 years old when the rape incidents took place. Young girls usually conceal for some time their defilement.35 Moreover, accused-appellant, being the cousin of her paternal grandfather, exercised moral ascendancy over complainant and even threatened her with death if she told anyone what he had done to her. Nor is there any probable reason for complainant to allow herself to be used as a pawn of her mother Felipa to extort money from accused-appellant. Unless it can be shown that complainant was moved by ill will to falsely implicate accused-appellant, the inescapable conclusion is that her testimony is worthy of full faith and credit.36 Fourth. Accused-appellant doubts the veracity of Algerico Lonio's testimony that he had witnessed the rape of complainant on September 8, 1990. Accused-appellant points out that Lonio failed to report the incident to complainant's parents or to the authorities despite the fact that there was no threat to his life. Accused-appellant also points out certain improbabilities in the testimony of Lonio, to wit: that he peeped through the "back fence of the house" and saw accused-appellant raping complainant; that despite the fact that the supposed incident happened between 7:00 to 8:00 p.m., no mention was made of any form of illumination of the place; and that accused-appellant made "push and pull movements" when the medical findings show that complainant's hymen was intact, thereby proving that there could not have been any penetration by accused-appellant's organ. These arguments have no merit. On cross-examination, Lonio said that he knew what would happen to complainant when accused appellant took her to the empty house of Pinay Aguirre because his (Lonio's) own younger sister and the sister of complainant had been abused by accused-appellant before. He said he saw how accused-appellant violated complainant against her will.37 Answering questions of the trial court, Lonio categorically said: COURT: (TO WITNESS) Q You said that you followed the two, accused and the complainant, after they entered the gate of the house of Pinay Aguirre. Did accused Decoroso not close the gate after they gained entrance to the gate? A Decoroso closed the gate.

Q A Q

Was it locked? He just closed it without locking. How far is the gate to the house of Pinay Aguirre? To the main door of her house?

INTERPRETER: Witness pointing to a distance indicating 3 to 4 meters. COURT: Q What door was used when they entered the house? The back door, or front door, or side door . A Q A Q A Side door. How do you know that they were using the side door when they entered the house? Because I saw them. The two were seeing you when you entered the gate following them? They did not see me.

Q Did you enter the house of Pinay Aguirre using the side door taken by the two when they entered the same house? A Q A Q A No. Where were [you] posted then? Inside the fence because I climbed over the bamboo fence. Fence around the house of Pinay Aguirre? It only connected the gate because there was a poultry .

Q So, you did not enter the house of Pinay Aguirre where the complainant and the accused had entered at 7 :00 o'clock in the evening of September 8, 1990? A I did not.

Q Why did you say that Fritzie Aca-ac was already lying down and her short was pulled and her blouse was raised above her breast? A Q I peeped. There was a hole or there was a window?

From a hole of a fence which is a hogwire.

Q How far was that fence made of hogwire to the house of Pinay Aguirre where the complainant and the accused entered? INTERPRETER: Witness indicating a distance of 3 to 4 meters. COURT: Q So that that portion of the house where the two entered was not surrounded by any walling in such a way that they could be seen from the wire? A Q No wall. How do you describe the house? Is it two storeys, or a building without walls?

A A two-storey house. Only the first storey has no wall because it was already destroyed by a storm. Q Was the place lighted, considering that it was already 7:00 o'clock in the evening the incident allegedly happened? A Q A It was well lighted because the opposite house was well lighted. And the light would reach the house of Pinay Aguirre? Yes.

Q When you saw the complainant with her shorts already pulled down, did I hear you correctly that the accused with the bended knees made a push-and-pull movement of the body of the complainant? A Q A Yes. Was his penis exposed? Yes, I saw.

Q You said that the accused licked the vagina of the complainant. Which happened first, the licking of the vagina or the push-and-pull movement? A The licking of the vagina happened first and after that, the accused made a push-andpull movement. Q Since you said that the penis of the accused was exposed, did we understand from you that the accused also pulled down his trousers, as well as his underwear? A Yes.

Q A Q

Did you see the penis of the accused penetrate into the vagina of the complainant? I did not see because Fritzie was under . In that precise moment, how far were you to the two?

INTERPRETER: Witness indicating a distance of 3 to 4 meters. COURT: Q Did you hear any utterances [from] either of the two regarding the push-and-pull movement made by the accused? Did you hear anything from the accused while making a push-and-pull movement? A None.

Q From complainant Fritzie, did you hear anything from her while the accused was making a push-and-pull movement over her? A I did not hear any word from Fritzie.

Q You said earlier that the accused and the complainant had several intercourse. This is also testified to by you during the cross-examination. Do you know that the two were having sexual intercourse? A Q A Because of the movement of Decoroso. After the push-and-pull movement, what transpired next? No more.

The alleged inconsistencies in the testimony of Lonio as to the details of the September 8, 1990 rape incident are inconsequential. It was evident that Lonio was telling the truth. He cried after narrating to the court how he told his mother about the incident. When the trial judge asked him why he cried, Lonio said that he was hurt because the same thing happened to his younger sister.39 He also said that he kept his silence in the beginning because he feared for his life.40 The testimony of Lonio contains details that dovetails on material points with the testimony of complainant. Fifth. While increasing the imposable penalty to reclusion perpetua in view of its conclusion that accused-appellant was guilty of statutory rape, the Court of Appeals affirmed the trial court's award of P30,000.00 for moral damages and P20,000.00 for exemplary damages in favor of the complainant. This ruling must be modified. In accordance with current rulings of this Court, the award of moral damages should be increased to P50,000.00.41 In addition, complainant should be paid P50,000.00 as civil indemnity.42 On the other hand, the award of P20,000.00 as exemplary damages should be deleted for lack of basis.

WHEREFORE, the decision of the Court of Appeals finding accused-appellant Decoroso Aca-ac y Cespon guilty of statutory rape and sentencing him to suffer the penalty of reclusion perpetua is AFFIRMED with the MODIFICATION that accused-appellant is ordered to pay complainant Fritzie Aca-ac P50,000.00 as civil indemnity and, in addition, P50,000.00 as moral damages. The award of P20,000.00 as exemplary damages is hereby deleted.
1w phi1.nt

SO ORDERED. Bellosillo, Mendoza, Buena, De Leon, Jr., JJ., concur.

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION

G.R. Nos. 676901-91 January 21, 1992 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. EDUARDO HERNANDEZ, MERLITO HERNANDEZ and MAXIMO HERNANDEZ alias "Putol, " accused-appellants. The Solicitor General for plaintiff-appellee. Cesar D. Cabral for accused-appellants.

NARVASA, C. J.: At about eleven o'clock in the evening of May 28, 1979, the people in the house of the spouses Eligio Mendoza and Eustaquia de Rosales at barrio Bukal Norte, Candelaria, Quezon, had all retired. With said spouses in their house were their sons, Buenaventura, Narciso and Marino; Elena Magararo, Buenaventura's wife; and a visitor, Donato Tabanao, who had been invited to spend the night. Then a male voice was heard from outside the house saying: "Tao po, kami ay alagad ng batas, puede ba kaming makapagtanong?" Elena got up to rouse her husband, Buenaventura but saw that he was already up. She saw him open a window in the living room and look out; but he immediately shut the window. Suddenly two gunshots rang out. Buenaventura fell. She started towards him but other gunshots came in a burst, and she dropped to the floor in terror. She saw her brother-in-law, Narciso, also fall. The shooting stopped. Elena heard a voice from outside say, "Eddie, tayo na, patay na sila." She thereupon went to her husband who was lying on the floor, covered with blood. Buenaventura asked for water and she gave him some. Then she asked him if he recognized the persons who had shot him. Buenaventura said he had glimpsed the brothers, Merlito and Eduardo Hernandez, and had seen that the one who had the gun was Maximo Hernandez. Again Buenaventura had another drink of water after which he expired. His brother, Narciso Mendoza, had been hit in the breast and died instantly. The Mendozas' house guest, Donato Tabanao, was slightly wounded. The police investigators recovered a number of empty bullet shells of a cal. 30 carbine scattered on the ground just outside the Mendozas' home, and slugs of the same caliber inside the house. They also noted several bullet holes in the front part of the house, in its interior partition or divider, as well as in a mosquito net and the victims' clothes. The post-mortem examination conducted by Dr. Domingo Alcala disclosed that Buenaventura Mendoza had been hit by a bullet fired from a caliber .30 carbine which penetrated his right lung and

caused his death from internal hemorrhage secondary to that gunshot wound. The autopsy performed by the same physician on Narciso Mendoza revealed that he had been shot in the chest and in the right shoulder also by caliber .30 rifle, and death had also resulted from the bullet would in the chest which had injured one of his lungs. The slightly upward trajectory of the bullets indicated that the rifle-wielder had been standing at a lower level than his victims. The persons identified by Buenaventura shortly before he died were known to Elena. As she later testified, Eduardo and Merlito Hernandez had once been their neighbors at Barrio Cabatang, Tiaong, Quezon; and she became acquainted with Maximo Hernandez at the house of Eduardo, also in the town of Candelaria, Quezon. Having found adequate basis to indict the Hernandez brothers, Eduardo and Merlito, and their uncle Maximo, for the killings, the Provincial Fiscal filed two separate informations for murder against them in the Regional Trial Court of Lucena. Both informations alleged that the accused had acted in conspiracy, and that there felonious assaults were aggravated by alevosia and evident premeditation. All three accused entered pleas of innocent when arraigned. They were thereafter tried jointly. Elena Mendoza was the prosecution's first witness. Apart from confirming the events set out in the first two paragraphs of this opinion, she told the Trial Court of other facts from which a motive for the killings might be ascribed to the accused siblings: revenge. According to her, five months earlier, or more precisely on December 27, 1978, at Barangay Cabatang, Tiaong, Quezon, Leonides Mendoza, a brother of Buenaventura, had killed a brother of the defendants, Carlos Hernandez. The killing was in the police blotter; but no prosecution in court ever took place because the Mendozas paid the Hernandez family the sum of P4,600.00 in settlement. Elena learned, however, that the Hernandezes had simply deposited this amount of P4,600.00 in a bank with the intention of returning it to the Mendozas at a later time; and she claimed that the "amicable settlement" notwithstanding, the Hernandezes had been waiting for her husband, Buenaventura "inaabangan" near the spring where he normally fetched water, at Bukal Norte, Candelaria, Quezon. The police investigators and the medical expert also gave testimony respecting the findings made by them within their respective fields of competence, already above outlined. Finally, Gelacio Mendoza, a brother of the slain victims, was called to the witness stand. Gelacio Mendoza deposed that at the time in question about 11 p.m., May 28, 1979 he heard his dog barking. He had peered through a hole in the wall of his house and seen three (3) men walking by the northern side of his house. He could not make out their faces as they passed but, by the light of the moon, was nonetheless able to identify two of them, by their build or general physical appearance, as his former neighbors, Eduardo Hernandez and Merlito Hernandez. He kept his eyes on the three men and saw them proceed toward the west and then directly south, in the direction of his parents' house, about 150 meters away from his own. From that direction, he heard gunfire some five minutes later. Not long afterwards, his brother, Marino, came to tell him that his other brothers, Buenaventura and Narciso, had been shot in their parents' house. He had immediately gone there and found his brothers dead. From his sister-in-law he learned of Buenaventura's Identification of the three Hernandezes as the killers. And like her, he also theorized that revenge was the motive for the killing. The defendants denied all complicity in the crime. They claimed that at the time of its commission, they were somewhere else.

Maximo Hernandez testified that he had gone to Sitio Quinti, Barrio Masalukot II, Candelaria, Quezon, at 8:00 o'clock in the evening of May 28, 1979 to act as one of the judges in an amateur singing contest held there as part of the celebrations of the town fiesta; that he was at that contest continuously from 9:00 o'clock that night up to 2:00 o'clock the following morning, together with the other judges, Roberto Burgos and Serapio Macasaet, and the master of ceremonies, Carlito Teseco; and that after the contest, he, his wife and children, had gone to the house of his friend, Roberto Cantos, on the latter's invitation, and there they had all passed the night. Maximo's alibi was confirmed by the testimony of the emcee of the singing contest, Carlos Teseco, who was the barangay captain of Barrio Masalukot II. Confirmation of the alibi was also made on the witness stand by the Chairman of the Board of Judges of the singing contest, Roberto Burgos, a municipal councilor of the place. Burgos, however, admitted on cross-examination that Sitio Quinti is only two or three kilometers distant from the scene of the crime, that the distance could be negotiated by a one-hour walk, and that during the intermission he could not recall whether or not Maximo had left the place because he had been very busy. Eduardo Hernandez, for his part, testified that at the time of the murders, he and his brother, Merlito, were in Barangay Bulagsong, Catanauan, Quezon, having gone there to help in the harvest of the palay on the land of Camelo Morales, Eduardo's father-in-law, land which was irrigated but untenanted. His testimony is that he had left his home at Bilirang Buli, Lagalag, Tiaong, Quezon, at about 5:00 o'clock in the morning of May 28, 1979, together with his wife, Lucila Morales, his small child, and his brother, Merlito. They rode on a bus and arrived at Lucena City at around 10:00 o'clock that morning. They then boarded a small bus which brought them to Catanauan, arriving there at 4:00 o'clock in the afternoon. Finally, they took a tricycle which deposited them at Camelo Morales' house at Barangay Bulagsong an hour later, at about 5:00 o'clock. They stayed at Barangay Bulagsong for about a month, and did not return to Bilirang Buli until the harvest had been completed. Merlito Hernandez gave evidence to the same effect. To corroborate the brother's alibi, four persons were called to the witness stand by the defense. The barangay captain of Lagalag, Tiaong, Quezon, Leodegario Isles, deposed that he met Eduardo and Merlito Hernandez in the morning of May 28, 1979 on the path leading from their barrio to the highway, while he was awaiting transport to Tiaong, he asked the Hernandezes where they were going and was told they were on their way to Catanauan. A few days afterwards, he saw Eduardo's wife at Lagalag; she told him she had returned from Catanauan to get some things from their house which she had forgotten. Another barangay captain, Segundino Diaz, of Bulagsong, Catanauan, Quezon, told the Court that he had seen Eduardo and Merlito Hernandez on May 28, 1979, at about 4:00 o'clock in the afternoon, at he house of Camelo Morales. He saw them again in the same house that evening, an occasion which he particularly recalled because it happened to be the siyaman, the ninth day of the novena prayers offered for the deceased mother-in-law of Camelo Morales. He saw the Hernandez brothers a third time the following day. Segundino Diaz admitted that Eduardo Hernandez is his nephew, in fact he was giving evidence at the request of Eduardo's mother; that Camelo Morales, Eduardo's father-in-law, paid his fare to Lucena City where the courthouse was situated; that at Lucena City, he had taken his meal and slept in the house of Eduardo's uncle; and that he had disclosed the matters testified to by him for the first time only to the defendants' attorney. Camelo Morales was called to the stand but could not confirm the alibi of his son-in-law, Eduardo Hernandez, his testimony being that it was not in 1979 but in 1981, that Eduardo and Merlito

Hernandez had gone to his place to help him harvest palay, and that the ninth day of the prayer offering for his deceased mother-in-law fell on a day in May, 1981 and the prayers were said from 4:00 p.m. to 7:00 p.m. that day. The fourth defense witness, Rolando Latorre, recalled having seen the two Hernandez brothers at around 8:00 o'clock in the morning of May 28, 1979, alighting from a vehicle at Candelaria, Quezon; that since as it turned out they were all going to Catanauan, they rode on the same bus up to Lucena City, and then on another bus to Catanauan which they reached at about 4 p.m. The prosecution presented one rebuttal witness: Alejandro Cruz, team leader of the Ministry of Agrarian Reform stationed at Catanauan, Quezon, whose primary duties included the survey of landholdings planted to rice and corn. He declared that of his personal knowledge, borne out by his official records, there was no irrigated riceland at all at Bulagsong, contrary to the claim of the Hernandez brothers that Camelo Morales' land was irrigated. The Trial Court found that the evidence established the guilt of the accused beyond reasonable doubt. It rendered judgment on March 8, 1984 the dispositive part of which reads as follows: WHEREFORE, viewed in the light of the foregoing, the Court finds the accused Eduardo Hernandez, Merlito Hernandez and Maximo Hernandez, alias "Putol," guilty beyond reasonable doubt of the crime of MURDER in both Criminal Cases Nos. 2620 and 3375, and hereby sentences the said accused . . . each to suffer a prison term of Life Imprisonment (Reclusion Perpetua) for the death of victim Buenaventura Rosales Mendoza in Crim. Case No. 3375; and 2. In Crim. Case No. 2620 for the death of Narciso Rosales Mendoza, accused Eduardo Hernandez, Merlito Hernandez and Maximo Hernandez, alias "Putol," each to suffer a prison term of Life Imprisonment (Reclusion Perpetua) and to indemnify proportionately the heirs of the two victims in the amount of Twenty Four Thousand (P24,000.00) Pesos, without subsidiary imprisonment in case of insolvency by virtue of the penalty imposed, with all the accessories of the law, and to pay the costs. The Trial Court's Clerk of Court, opining that "the penalties (of reclusion perpetua) imposed . . . in both cases call for automatic review by the Hon. Supreme Court," transmitted the record including the transcripts of stenographic notes, the minutes of the proceedings and the exhibits, to this Court's Clerk of Court. Although such a transmittal was erroneous, considering that an automatic review is authorized by law only when the penalty of death has been imposed, this Court nevertheless accepted the appeal. 1 Briefs were thereafter filed in due course for the appellants. One was filed in behalf of Maximo Hernandez; 2 that for the other two (2) appellants was filed by another counsel. 3 The appellants argue that it was error for the Trial Court to 1) have rejected Exhibits 1 and 2 of the defense; 2) have admitted and accorded full credit to the dying declaration of Buenaventura Mendoza (on the basis of the "uncorroborated, unreliable and unbelievable testimony of Elena Mendoza"); 3) rule that there was sufficient circumstantial evidence proving the appellants were the perpetrators of the crime;

4) have taken account of revenge as motive although there was no direct evidence pointing to the appellants as authors of the crime; and 5) have refused "due credence to the duly corroborated and reliable testimonies of appellants . . . and their witnesses." It should be apparent that the entire case of the prosecution turns upon the identification of the appellants verbally made to Elena Mendoza by her husband shortly before he died from the gunshot wounds received by him moments earlier. It is therefore essential to ascertain if the dying man's statements were indeed correctly received as a dying declaration in accordance with the Rules of Court, 4 and also, since those ante-mortem statements were testified to by Elena Mendoza, to analyze carefully the latter's testimony respecting them and determine how much credit should be accorded to it, if at all. The requisites for the admissibility of a dying declaration, as an exception to the hearsay rule, are well known. It is necessary that (1) the declaration be made by the deceased under the conciousness of his impending death; (2) the deceased was at the time competent as a witness; (3) the declaration, concerns the cause and sorrounding circumstances of the declarant's death; and (4) it is offered in a criminal case wherein the declarant's death is the subject of inquiry. 5 The decisive factor is that the declaration be made under the conciousness of impending death. It is this which imparts trustworthiness to the essentially hearsay character of the declaration hearsay, because it is some person other than the deceased declarant (of course) who testifies to the same. A declaration made with awareness of imminent demise, it has often been said, is "made in extremis, when the party is at the point of death and when every hope of this world is gone; when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth; a situation so solemn and awful is considered by the law as creating an obligation equal to that which is created by a positive oath administered in a court of justice." 6 The idea, more succintly expressed, is that "truth sits on the lips of dying men." In a well known work on evidence, 7 the following theory is advocated, viz.: When death supervenes speedily after the declaration is made, the inference that the declarant realized his condition may be obvious. In a case in which the declarant died immediately after stating who had attacked him, his declaration was admitted (People v. Gallos, 47 Phil. 994). In another case where the declarant was seriously wounded and died a few minutes after stating the name of his assailant, the statement was held admissible (People v. Chan Lin Wat, 50 Phil. 182). The theory is not quite correct; it is not justified by the jurisprudence cited. Gallos did not involve the dying-declaration rule; the statement of the dying victim was mentioned only in passing, there being other evidence quite adequate to sustain conviction. And in the Chan case, the declaration of the expiring victim was admitted not because death came soon after he had been wounded, but because the circumstances were such as to generate a reasonable inference that he knew he was shortly going to die; i.e., he had fallen into so weakened a condition while being interrogated by the police that the doctors had to ask that the questioning be stopped on that account, and indeed, he died within minutes thereafter. It may be that when death takes place immediately after a dying person makes a declaration, the inference that he knew he was dying when he made the declaration is not far-fetched. The inference is however not one that necessarily follows. For it may also be that a gravely wounded individual may express hopes of recovery while making statements as to the cause and sorrounding

circumstances of his injury, and die immediately thereafter, within minutes after being hurt; and it is clear that in this situation, the declaration is not admissable. The correct principle then is that it is not so much the rapid eventuation of death as the decedent's conciousness that his demise is at hand, that invests his utterances in the premises with admissibility by way of exception to the hearsay rule. Not speediness of dissolution from injury, but realization of the imminence of that dissolution, is what controls. Now, whether or not such a conciousness of the imminence of death is present in any given case is, of course, a matter of proof. It may be proven by the very statements of the decedent himself, as when he says he knows he is dying, 8 or there is no hope of recovery for him, 9 or that he should be brought to the hospital because his wounds were serious, 10 or contrariwise, it is futile to bring him to a hospital, or that a priest should be called to administer the last rites to him or so that he may make his peace with God prior to meeting him, or asks his spouse to look after their children or makes provisions respecting his property and personal affairs, 11 etc. It may be established by his acquiescence, express or tacit, to apprehensions made known by his physicians or other persons that no hope could be held out for him, 12 or to suggestions that a priest be called to make him ready to meet his Creator. It may also be inferred from the nature and extent of the decedent's wound, or other relevant circumstances. 13The important thing, to repeat, is that there be some persuasive evidence of the decedent's consciousness that death impended from his wounds, regardless of whether he actually dies very quickly after being wounded, or there is an appreciable lapse of time between his wounding and his dying. 14 The record of Elena Mendoza's testimony is unfortunately barren of any circumstances from which a reasonably reliable ascertainment might be made of whether or not her husband, Buenaventura, had made the identification of the appellants under the conciousness of impending death. In the People's brief, Elena's relevant testimony on the point is reproduced, as follows: Q After the gunshots stopped, what happened next? A I overheard a voice saying "Eddie tayo na, patay na sila." Q Where was the voice coming from, if you know? A Outside our house, sir. Q After you heard the voice saying "Eddie tayo na, patay na sila," what happened next? A I approached my husband, sir. Q What did you do with your husband? A I twisted his body and I saw his body was soaked with blood, sir. Q What happened afterwards? A My husband asked for some water, sir. Q After drinking the water, what happened next?

A After he drank the water, I asked him if he recognized who shot him. Q What was his answer? A He said he recognized and he told me the names, sir. Q What did your husband tell you regarding the persons who fired at him? A The brothers Merlito and Eduardo Hernandez, and the one who was holding the gun was Maximo Hernandez alias "Putol", sir. Q After your husband had Identified his assailants, what happened next? A I gave him water and after drinking, he passed away, sir. (pp. 8-9, TSN, May 10, 1992) It seems therefore that, for lack of predicate, Buenaventura's statements may not qualify as a dying declaration. Nevertheless those statements may be admitted as part of the res gestae in accordance with Section 36, Rule 129 of the Rules, 15 which provision reads as follows: Sec. 36. Part of the res gestae. Statements made by a person while a startling occurrence is taking place or immediately prior or subsequent thereto with respect to the circumstances thereof, may be given in evidence as a part of the res gestae. . . . The infliction on a person of a gunshot wound on a vital part of the body should qualify by any standards as a startling occurrence. And the rule is that testimony by a person regarding statements made by another as that startling occurrence was taking place or immediately prior or subsequent thereto, although essentially hearsay, is admissible exceptionally, on the theory that said statements are "natural and spontaneous, unreflected and instinctive, . . . made before there had been opportunity to devise or contrive anything contrary to the real fact that occurred," it being said that in these cases, it is the event speaking through the declarant, not the latter speaking of the event. 16 It seems entirely reasonable under the circumstances to conclude that Buenaventura's statements, made moments after receiving his fatal injury, were made without opportunity to devise or contrive, and under the influence of the occurrence. The next question is whether the statements attributed to Buenaventura relative to the identity of his assailants were indeed uttered at the time and under the circumstances narrated by his widow in the witness chair. The record shows that a barangay councilman, and three (3) police officers two of whom were known to the widow as Casayuran and Atienza came to her home some seven hours after her husband's death; and stayed for "several hours," surveying and studying the scene of the crime, taking photographs, collecting whatever physical evidence there was, and interviewing witnesses. Now, there can scarcely be any doubt that among the very first questions, if not indeed the most important question, that the police investigators asked at the time was, who was or were the perpetrators of the killing; or who had seen the foul deed being done and whether the person or

persons doing it had been recognized or could be described. Certain it is that the widow and the victim's relatives (e.g., his brother Gelacio) would have been among those to whom this question would have been among those to whom this question would have been put, not once but several times and not only by the police but by other persons. And certain it is, too, that the widow would have forthwith responded by telling the police officers the names of the slayers as told to her by her husband, if it was indeed true that he had identified them to her in his dying moments. In fact the government's evidence is that this question was asked of her by one of her brothers-in-law, Gelacio Mendoza, before the three police investigators came, and she had thereupon confided to him the names of the culprits identified by her husband moments before his death. But they quite frankly admit, neither the widow nor her brother-in-law, Gelacio, ever divulged the victim's alleged "dying declaration" (spontaneous statements which are part of the res gestae) to the barangay councilman or any one of the three police investigators who came to said victim's home and stayed for several hours. It appears that the widow revealed her husband's statements for the first time only when she gave testimony at the trial of the persons charged with her husband's killing. Her reason for not making the revelation earlier was, in her own words, "I was confused at that time; . . . there were so many persons who went to our place so I was not able to tell (banggit) those things . . ." Gelacio, too, appears to have kept quiet about the widow's disclosure to him (re the victim's identification of his assailants), and like his sister-in-law, made that disclosure public only when he testified at the trial of his brother's supposed killers. Conduct like this is passing strange. It is unnatural. It is incredible. It makes it extremely difficult to accord any credit to the testimony of either the widow or her brother-in-law with respect to the ante-mortem statements allegedly made by the deceased seconds before he expired from his gunshot wounds. The ante-mortem statements being thus relegated to limbo, as it were, very little remains by way of evidence upon which to rest a verdict of conviction against the appellants. There is, to be sure, the attempt by the same Gelacio Hernandez to make an identification of the appellants by their build and general appearance. He testified that having been awakened by his dog's barking at about 11 o'clock in the evening of the day in question, he had looked out of his house and by the light of the moon had seen three (3) men walking by; that although he could not make out their faces as they passed, yet he was able to identify two of them, by their build or general physical appearance, as his former neighbors, Eduardo Hernandez and Merlito Hernandez; he had seen the three men go toward the direction of his parent's house; that about five minutes afterward, he had heard gunfire; and soon afterwards he was told that his brothers, Buenaventura and Narciso, had been shot in their parent's house. The testimony, standing alone, cannot be deemed satisfactory proof of identification of the appellants as the killers. What has been stated makes discussion and assessment of the appellant's alibis unnecessary. The Court will say, however, that there appears to be adequate evidentiary basis for those alibis. WHEREFORE, the judgment of conviction rendered against the appellants by the Court a quo on March 8, 1984 is REVERSED AND SET ASIDE, and all three (3) appellants are, on reasonable doubt, ACQUITTED of the crime charged, with costs de officio. SO ORDERED. Cruz, Grio-Aquino and Medialdea, JJ., concur.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. Nos. L-45471 and L-45472 June 15, 1938

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellant, vs. FRANCISCO MERCADO, defendant-appellee. Office of the Solicitor-General Tuason for appellant. Mariano Sta. Romana for appellee. DIAZ, J.: This is an appeal by the prosecution form an order of the Court of First Instance of Pampanga whereby said court declared itself without jurisdiction to take cognizance of and decided two criminal cases pending before it, for theft of large cattle, against the appellee Francisco Mercado, on the ground that, although the stolen animals were afterwards brought by the appellee to the municipality of Candaba, Pampanga, where they were found in his possession, said crimes had taken place and had been committed in the municipality of Gapan, of the Province of Nueva Ecija. The informations which gave rise to the criminal cases above-mentioned are of the following tenor: That on or about the 21st day of June, 1936, in the municipality of Candaba, Province of Pampanga, Philippine Islands, and within the jurisdiction of this court, the abovenamed accused, Francisco Mercado, with intent of gain, did, then and there, voluntarily, maliciously, illegally and criminally, take, steal, and carry away two male carabaos branded as ................. and ................... with certificates Nos. 7361553, dated at Pearanda, Nueva Ecija, on October 29, 1929 and 6993322 dated at Gapan, Nueva Ecija, on June 3, 1933, respectively, both belonging to Pedro A. Ladores, worth sixty pesos (P60) each and to his damage and prejudice in the total amount of P120. The commission of the crime having been commenced at Gapan, Nueva Ecija, and consummated at the municipality of Candaba, Pampanga, and without the knowledge and consent of the owner. That on or about the 21st day of June 1936, in the municipality of Candaba, Province of Pampanga, Philippine Islands, and within the jurisdiction of this court, the abovenamed accused, Francisco Mercado, with intent of gain, but without the use of violence upon persons nor force upon things, did, then and there, voluntarily, maliciously illegally and criminally take, steal, and carry away a male carabao branded as .............. with certificate No. 6696261, dated at Pearanda, Nueva Ecija, on April 11, 1928, valued at ninety pesos (P90), owned by Leon Ladores, without his knowledge and consent, and to his damage and prejudice in the said sum of P90. The commission of the crime having been commenced at Gapan, Nueva Ecija, and completed at the municipality of Candaba, Pampanga. The foregoing informations were filed by the provincial fiscal of Pampanga in the Court of First Instance of said province after receiving the report of the preliminary inquiries made, upon complaint, by the justice of the peace court of Candaba, Pampanga, where the case originated. The appellee waived his right to a preliminary investigation and asked that the two cases be remanded to the Court of First Instance for trial and final judgment.

Briefly, the question raised by the prosecution on appeal is the following: Has the Court of First Instance of Pampanga jurisdiction to try and decide the two cases in question, it being alleged in the informations by which they were commenced that the accused stole the carabaos described therein in Gapan, in the Province of Nueva Ecija, which is beyond the jurisdiction of the court, in order to bring them, as he in fact did afterwards, to Candaba, Pampanga, where they were found in his possession? The lower court upheld the negative, being of the opinion that the appellee committed the two thefts in question no in the Province of Pampanga over which its jurisdiction is exclusive of the Province of Nueva Ecija, but in the latter province. In criminal proceedings, the rule is that one can not be held to answer for any crime committed by him except in the jurisdiction where it was committed. Said rule is based on the legal provision which prescribes the essential requisites of a good complaint or information, one of which is the allegation that the crime was committed within the jurisdiction of the court where the complaint or information is filed and that said court has authority to try it. (Sec. 6, General Orders, No. 58.) As was said in the case of United States vs. Cunanan (26 Phil., 3760, the jurisdiction of the Courts of First Instance of the Philippine Islands, in criminal cases, is limited to certain well-defined territory, so that they can not take jurisdiction of persons charged with an offense alleged to have been committed outside of that limited territory. Appellant, however, contends that there are crimes which are considered as continuing, as for instance those whose commission does not terminate where the acts of execution began, or where they are consummated for the first time, because the execution or consummation of those crimes continues successively and uninterruptedly until stopped by a cause independent of the will of the offender. It alleges that certain cases of abduction, like that of United States vs. Bernabe (23 Phil., 154), partake of this nature because they are partly executed in one province and partly in another. We can not, in truth, find any similarity between the Bernabe case and those now under consideration. It was held in that case that the carrying away of the offended party took place in Manila and that the unchaste designs, an essential element of abduction, were not made manifest or begun until the offender and his victim were already in Rizal. For this reason, although the offense was commenced in Manila, it was held that it was consummated only in said province. Neither do the present cases bear any similarity with those of estafa which appear in 23 Phil., 207 (U.S. vs. Cardell) and 27 Phil., 408 (U.S. vs. Santiago), because although the accused in said cases appropriated their collections in Cebu and in Iloilo. respectively, in compliance with the order which they had previously received fro their principals, however, they expressly and formally bound themselves to render an accounting or to deliver their collections in Manila, wherefore, it could correctly be held in said cases that the crimes committed by the accused were triable in the City of Manila. To sustain its theory, the appellant invokes the commentary found on pages 192 and 193 of Volume 16 of Corpus Juris and what Wharton has to say in his criminal law (11th edition, page 1389), and what Clark, in turn, states in his commentary on Criminal Law, pages 366, in the following language: PAR. 1116. Thief carrying goods from county to county may be convicted in either country. Where a larceny has been committed in one country and the thief removes the stolen property into another county (animus furandi) he is, in the eye of the law, guilty of larceny in every country into which the subject may thus have been carried. The rule applied as well to property which is made the subject of larceny by statute, as to property which is made the subject of larceny by the common law. (2 Wharton's Criminal Law, 11th ed., p. 1389.) Again, property may be stolen in one state, and brought into another. Can the latter state punish the thief? It has been held from the earliest times that if a thief steals goods in one country, and brings them into another, he may be indicted in either, because his unlawful

carrying in the second is deemed a continuance of the unlawful taking, and so all the essential elements of larceny exist in the second. (Clark's Criminal Law, p. 366.) We do not believe that these American precedents, much as they are entitled to our respect, apply to the cases in question; for, according to them, "to constitute larceny the first essential is that the thing which is the subject of the crime should be taken from the possession of the owner into the possession of the thief, and be carried away by him, for until this is done there is no larceny, however definite may be the intent of the prospective thief to commit the theft, and however elaborate his preparations for doing so." (36 C.J., 747.) To constitute larceny, there must be a taking and a carrying away of personal property with intent to steal it. Taking without carrying away is not larceny. (Com. vs. Adams, 73 Mass., "1 Gra" 43, 44.)" This is so because their definition of larceny is the following: "Larceny at common law may be defined to be the taking and carrying away from any place, at any time, of the personal property of another, without his consent, by a person not entitled to the possession thereof, feloniously, with intent to deprive the owner of his property permanently, and to convert it to the use of the taker or of some person other than the owner." (36 C.J., 734.) It may be inferred from the foregoing definition of "larceny" that the essential elements of this crime are in a sense distinct from those of theft as the latter offense is known in this jurisdiction. In larceny, except in the State of Texas (36 Corpus Juris, 748), it is not only essential that there must be a taking away or abstracting of personal property belonging to another, but the person taking must also carry it away. In the aforesaid State, the last requisite is not indispensable. But in all the other States, the courts have generally held that, "where goods are stolen in one state and carried into another, there is a larceny in the latter, on the ground that each moment's continuance of the trespass and felony amounts to a new taking and asportation, and that the courts of the state into which the goods are brought have jurisdiction to punish as for larceny in such state." (16 Corpus Juris, p. 167.) This is also the rule in Texas because an express provision is to be found in its procedural law which embodies it. Said provision is section 235 of its Code of Criminal Procedural, which says: Where property is stolen in one county and carried off by the offender to another, he may be prosecuted either in the country where he took the property or in any other country through or into which he may have carried the same. On the other hand, the elements of theft in this jurisdiction are: First, taking away of personal property; second, that the property belongs to another; third, that the taking must be with intent to gain; fourth, that it is done without the consent of the owner; and fifth, that there is no violence or intimidation against persons, or force upon things. It is not an indispensable requisite of theft that the pickpocket or their carry, more or less far away, the thing taken by him from its owner. Wherefore, relying upon the provisions of article 308 of the Revised Penal Code, which reads: "Theft is committed by any person who, with intent to gain but without violence against or intimidation of persons nor force upon things, shall take personal property of another without the latter's consent," we hold that the thefts charged in the two informations already referred to were wholly committed in Gapan, Nueva Ecija, and that for their consummation nothing else remained to be done from the moment that the appellee took away, with intent to gain, said animals while they were yet in said municipality and province. It was not necessary that there had been real or actual gain on his party or that he had removed the stolen animals to the town of Candaba, in the Province of Pampanga, in order to make use of or derive some benefit from them. It was enough that on

taking them in Gapan, he was then actuated by the desire or intent to gain. This opinion accords completely with that stated in the case of United States vs. Adiao (38 Phil., 754). In that case a Manila customs inspector took a leather belt from the baggage of a passenger who had just landed at the port of Manila and kept it in his office desk where the other employees found it afterwards. He was not able to make use of said belt, but he was found guilty of theft for the reason that he had performed all the acts of execution necessary for consummation of the crime. Our opinion is also in conformity with that expressed by the Supreme Court of Spain in its decisions of December 1, 1897 and October 14, 1898, referred to in the Adiao case, and that of the same tribunal of November 16, 1895 where it was said that "the crime of theft consists in taking personal property belonging to another person without his consent and it is no bar to its consummation that the offender may not have been able to make use of the stolen articles, for it is not the gain obtained, but his intention which, together with the other elements above-mentioned, constitutes the crime in question." (II Hidalgo, Codigo Penal, p. 662.) Therefore, in accordance with the clear provision above-cited of section 6, No. 4, of General Orders, No. 58, the prosecution of the appellee should have been and should be commenced in Nueva Ecija. Besides the foregoing, the following observations may also be made: From a reading of the two information in the two cases in question, it may be seen that the appellee illegally took the carabaos from the owner thereof in Gapan because the allegation to be found therein, particularly in one of the informations (C.F.I. No. 5224; G.R. No. 45471), that the appellee "did, then and there, voluntarily, maliciously, illegally and criminally, take, steal, and carry away a male carabao branded as ................... with certificate No. 669261, dated at Pearanda, Nueva Ecija, on April 11, 1928, valued at ninety pesos (P90), owned by Leon Ladores, without his knowledge and consent, and to his damage and prejudice in the said sum of P90. The commission of the crime having been commenced at Gapan, Nueva Ecija, and completed at the municipality of Candaba, Pampanga," it to this effect. There is not a single allegation or insinuation in the two informations from which it might be deduced that the desire to gain was not that which led the appellee to steal the animals. It is, therefore, natural and reasonable to conclude that he took them with intent to gain. In so holding, we adopt the same rule followed by the Supreme Court of Spain, which we have seen applied in those cases to which its decisions of October 14, 1898, 18, 1899, January 10, 1900, February 6, 1902, November 15, 1894, and others relate and in which it was held that: The intent to gain is the usual motive to be presumed from all furtive taking of useful property appertaining to another, unless special circumstance reveal a different intent on the part of the perpetrator. (Decision of October 14, 1898.) It being stated as a proven fact in the appealed decision that the accused took two bundles of barley from a farm, it is clear that, without a declaration as also proven that he did so with a purpose other than to gain and with the authorization of the owner, the elements constituting the crime of theft are included in the word "take." (Decision of October 18, 1899.) The act of taking figs from the tree of another without his consent constitutes asportation in which the intent to gain is inherent, which intent is made manifest by the act of carrying them away. (Decision of January 10, 1900.) Although the asportation of a thing belonging to another without his consent does not always imply the intent to gain on the part of the perpetrator, who might have some other purpose in mind, when said purpose is not shown, it is reasonable to believe that the taking was made with that essential element of the crime of theft. (Decision of February 6, 1902.)

Although the asportation of a thing appertaining to another without his consent does not necessarily imply in all cases the intent to gain on the part of its author, since his purpose might be different; when this is not shown, but on the contrary, in order to justify his holding and free disposition of the thing taken, he alleges title thereto by virtue of a contract of purchase and sale which he has not been able to prove beyond doubt, it is reasonable to infer that the taking was done with intent to gain in the juridical sense which such concept has for purposes of the crime of theft, whatever may be the class or condition of the persons doing the illegal taking. (Decision of November 15, 1894.) (II Hidalgo, Codigo Penal, pp. 664, 665, 667, and 660.) Practical reasons and considerations, however, require that no pass be opened to the thief through which he may easily frustrate the right of the owner of a stolen thing to recover it from him or to go after it, or which may make if difficult, it not impossible, for him to secure the punishment of the offender. By allowing the owner of the stolen thing to follow the thief no matter how far from the scene of the crime the latter may have brought it, in order to have him prosecuted which, surely, will be the effect of sustaining a contrary opinion, is to put obstacles in his way precisely because this will result in expenses and delay. If this were done, the thief would contrive in all cases to carry as far as possible what he may have stolen so that he would have greater chances of getting unpunished. In conclusion, we are of the opinion and so hold that the sole court possessing jurisdiction over the cases against the appellee for the theft of the carabaos in question is not that of Pampanga, but that of Nueva Ecija in which they should have been and must be instituted. Wherefore, the appealed order is hereby affirmed, with costs de oficio. So ordered. Avancea, C.J., Villa-Real, Abad Santos, Imperial and Concepcion, JJ., concur.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-13785 October 8, 1918

THE UNITED STATES, plaintiff-appellee, vs. TOMAS ADIAO, defendant-appellant. Victoriano Yamzon for appellant. Attorney-General Paredes for appellee.

MALCOLM, J.: The defendant was charged in the Municipal Court of the city of Manila with the crime of theft. He was found guilty of the lesser crime of frustrated theft. He appealed to the Court of First Instance of the city of Manila and again he was found guilty of the crime of frustrated theft, and was sentenced to pay a fine of P100, with subsidiary imprisonment in case of insolvency, and to pay the costs. The sole error assigned on appeal is that the lower court erred in holding that the defendant was guilty of the crime of theft as dis closed by the facts appearing of record. We have examined the evidence carefully and from our study are unable to say that the proof is contrary to the findings of the lower court. Stated in one sentence, the defendant, Tomas Adiao, a customs inspector, abstracted a leather belt valued at P0.80, from the baggage of a Japanese named T. Murakami, and secreted the belt in his desk in the Custom House, where it was found by other customs employees. Based on these facts, the Court is of the opinion that the crime can not properly be classified as frustrated, as this word is defined in article 3 of the Penal Code, but that since the offender performed all of the acts of execution necessary for the accomplishment crime of theft. The fact that the defendant was under observation during the entire transaction and that he was unable to get the merchandise out of the Custom House, is not decisive; all the elements of the completed crime of theft are present. The following decisions of the supreme court of Spain are in point: The defendant was charged with the theft of some fruit from the land of another. As he was in the act of taking the fruit he was seen by a policeman, yet it did not appear that he was at that moment caught by the policeman but sometime later. The court said: ". . . The trial court did not err . . . in considering the crime as that of consummated theft instead of frustrated theft inasmuch as nothing appears in the record showing that the policemen who saw the accused take the fruit from the adjoining land arrested him in the act and thus prevented him from taking full possession of the thing stolen and even its utilization by him for an interval of time. (Decision of the supreme court of Spain, October 14, 1898.) Defendant picked the pocket of the offended party while the latter was hearing mass in a church. The latter on account of the solemnity of the act, although noticing the theft, did not do anything to prevent it. Subsequently, however, while the defendant was still inside the church, the

offended party got back the money from the defendant. The court said that the defendant had performed all the acts of execution and considered the theft as consummated. (Decision of the supreme court of Spain, December 1, 1897.) The defendant penetrated into a room of a certain house and by means of a key opened up a case, and from the case took a small box, which was also opened with a key, from which in turn he took a purse containing 461 reales and 20 centimos, and then placed the money over the cover of the case; just at this moment he was caught by two guards who were stationed in another room near-by. The court considered this as consummated robbery, and said: " . . . The accused . . . having materially taken possession of the money from the moment he took it from the place where it had been, and having taken it with his hands with intent to appropriate the same, he executed all the acts necessary to constitute the crime which was thereby produced; only the act of making use of the thing having been frustrated, which, however, does not go to make the elements of the consummated crime. (Decision of the supreme court of Spain, June 13, 1882.) There exists the aggravating circumstance that advantage was taken by the offender of his public position. Wherefore, in view of the provisions of articles 517 and 518, No. 5, of the Penal Code, and there being present one aggravating circumstance compensated by no mitigating circumstances, the penalty must be imposed in the maximum degree.
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Judgment is reversed and the defendant and appellant is sentenced to three months and one day of arresto mayor, with the costs of all instances against him. The merchandise in question, attached to the record as Exhibit A, shall be returned to the lawful owner, T. Murakami. So ordered. Torres, Johnson, Street, Avancea and Fisher, JJ., concur.