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TITLE VIII: CRIMES AGAINST PERSONS

PARRICIDE Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-50905 September 23, 1982 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FRANCISCO JUMAWAN alias "KIKO", CESARIO JUMAWAN alias "SARIO", MANUEL JUMAWAN alias "OWEL" and PRESENTACION JUMAWAN-MAGNAYE alias "ESEN" accused-appellants. ABAD SANTOS, J.: On the basis of a written statement made by Vicente Recepeda on July 18, 1976, and an affidavit executed by Trinidad Alcantara on July 19, 1976, a complaint for murder was filed in the Municipal Court of Sariaya, Quezon, on July 19, 1976, by Station Commander Sisenando P. Alcantara, Jr. against Francisco Jumawan, Cesario Jumawan, Manuel Jumawan and Presentacion Jumawan for the death of Rodolfo Magnaye. The affidavit of Trinidad Alcantara clearly states that her son Rodolfo Magnaye was married to Presentacion Jumawan albeit they had been living separately from each other. (During the trial Presentacion admitted her marriage to Rodolfo. See t.s.n., pp. 811-812.) The Station Commander can perhaps be excused for not accusing Presentacion of parricide but when the case was elevated to the Court of First Instance of Quezon where it was docketed as Criminal Case No. 1408, the Provincial Fiscal perpetuated the mistake by filing an information for murder against all the accused. The information reads: The undersigned Provincial Fiscal accuses CESARIO JUMAWAN alias 'Sario,' MANUEL JUMAWAN alias 'Owel', FRANCISCO JUMAWAN alias 'Kiko' and PRESENTACION JUMAWAN alias 'ESEN', of the crime of murder, defined and punished under Article 248 of the Revised Penal Code, committed as follows: That on or about the 19th day of June 1976, in the Municipality of Sariaya, Province of Quezon, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, armed with a bolo (gulukan), conspiring and confederating together and mutually helping one another, with intent to kill and with evident premeditation and treachery, taking advantage of their superior strength, did then and there wilfully, unlawfully and feloniously attack, assault and stab with the said bolo one Rodolfo Magnaye alias 'Digo', thereby inflicting upon the latter a stab wound on the chest, which directly caused his death. After a long trial and 1,211 pages of stenographic transcript, the trial court rendered the following judgment:
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TITLE VIII: CRIMES AGAINST PERSONS

Wherefore, the Court finds Cesario Jumawan, Presentacion Jumawan-Magnaye, Manuel Jumawan, and Francisco Jumawan guilty as principals beyond reasonable doubt of the crime of Murder as defined and punished under Art. 248 of the Revised Penal Code and hereby sentences each of them to suffer a penalty of life imprisonment and to indemnify jointly and severally the parents of the victim in the amount of Twenty-four Thousand (P24,000.00) Pesos. The case is now before this Court on appeal. The brief of the appellants gives the following: STATEMENT OF FACTS The Accused: Francisco Jumawan is the father of his co-accused, namely, Cesario Jumawan, Manuel Jumawan and Presentacion Jumawan. Presentacion Jumawan was married to Rodolfo Magnaye. Death of Rodolfo Magnaye: As described by the lower court, '... when Rodolfo Magnaye did not return home in (that) evening of 19 June 1976, his mother (Trinidad Alcantara) went to the public market to look for him on the following day. She met four (4) children who told her that they saw a man near the water. They accompanied her to the place and she recognized the dead man as her son Rodolfo Magnaye. She then proceeded to the police headquarters to report the matter. ...' (page 5, Judgment). For the death of Rodolfo Magnaye, the accused stand charged of the crime of MURDER. The People's brief, on the other hand, merely reproduces the trial court's findings of facts as follows: It appears from the evidence adduced during the trial that Rodolfo Magnaye was married on 26 January 1974 to Presentacion Jumawan, one of the accused in the above entitled criminal case. Presentacion Jumawan-Magnaye left the conjugal home and stayed with her sister Sebastiana Jumawan. Rodolfo Magnaye, on the other hand, went and stayed with his mother Trinidad Alcantara. The mother of Mrs. Presentacion Jumawan-Magnaye made several attempts to secure the signature of Rodolfo Magnaye on a document agreeing to a separation from his wife so that both he and his wife will be free to marry again but Rodolfo Magnaye persisted in refusing to sign said document. On one occasion the mother of Mrs. Presentacion Jumawan-Magnaye even brought Rodolfo Magnaye and his mother to the Provincial Constabulary Command to ask for the assistance of

TITLE VIII: CRIMES AGAINST PERSONS

Sgt. Mortilla to assist her daughter in securing a separation from Rodolfo Magnaye but they were told by Sgt. Mortilla that it cannot be legally done. Between 5:00 and 6:00 o'clock in the afternoon of 19 June 1976 while Trinidad Alcantara was in her house, her son Rodolfo Magnaye was dressing up and told her that he was going to the public market because his wife asked him to fetch her. He asked his mother to prepare food because they are going to talk about their lives. He left home at about 6:00 o'clock in the evening. At about 9:30 o'clock in the evening of 19 June 1976 one Mr. Vicente Recepeda came from the Aglipayan fiesta in Sariaya, Quezon and after eating at the Sariling Atin eating place he went to the former BLTB station at Sariaya, Quezon. While he was infront of the public market on the way to the former BLTB station he heard the noise of pigs being butchered and being in the business of buying pigs and chicken he went to the direction of [the] slaughter house to inquire about the prices of pigs and chicken. Before reaching the slaughter house he heard the noise (sic) of a person being attacked by three (3) persons and a woman inside a store which was lighted. He saw accused Francisco Jumawan holding the hands of Rodolfo Magnaye while accused Manuel Jumawan was behind Rodolfo Magnaye with his arm around the neck of Rodolfo Magnaye while Cesario Jumawan was infront of Rodolfo Magnaye with his left hand holding the collar of Rodolfo Magnaye and in his right hand he was holding a small pointed bolo with which he stabbed Rodolfo Magnaye below the right nipple. At about 11:00 o'clock in that evening a certain Mr. Policarpio Trinidad who also came from the Aglipayan fiesta in Sariaya, Quezon was waiting infront of a gasoline station across the old station of the BLTB waiting for a ride home when he saw Cesario Jumawan and Manuel Jumawan with Rodolfo Magnaye between them while they were crossing the national highway towards the south to a road opposite the Emil Welding Shop. They went on walking after crossing the highway. At that time the head of Rodolfo Magnaye was bowed infront while his two (2) arms were on the shoulder of Cesario and Manuel Jumawan. Rodolfo Magnaye was not walking. At about 11:45 o'clock in the evening of 19 June 1976 Presentacion Jumawan-Magnaye reported to Patrolman Marcial Baera and Patrolman Albufera that the store of Bastiana (Sebastiana) Jumawan where she works is threatened to be robbed by Rodolfo Magnaye. When asked by Patrolman Baera Presentacion Jumawan-Magnaye denied being related to Rodolfo Magnaye. He went to investigate the reported attempt to rob the store of Sebastiana Jumawan and he saw one of the panels used to close the store was destroyed but nothing appears to have been taken from the store. Presentacion Jumawan-Magnaye and her companions Tita Daez and Anabelle Jumawan told Patrolman Baera that they will file charges against Rodolfo Magnaye. Patrolman Baera entered the report of Presentacion Jumawan-Magnaye in the police record book. When Rodolfo Magnaye did not return home in that evening of 19 June 1976, his mother (Trinidad Alcantara) went to the public market to look for him on the following day. She met
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four (4) children who told her that they saw a man near the water. They accompanied her to the place and she recognized the dead man as her son Rodolfo Magnaye. She then proceeded to the police headquarters to report the matter. The two Patrolmen Baera and Albufera went to the place and they saw the dead man without a shirt and wearing black pants with white shoes. They noticed a stab wound on the lower portion of the right breast. The dead man was lying face up. In the afternoon of the same day Patrolman Loreto Galeon went to the store of Sebastiana Jumawan located at the public market of Sariaya to follow up the investigation of the reported attempted robbery case against Magnaye. He asked the storekeeper for permission to look at the wood panels which are used to close the store. He found traces of blood in one of the wooden panels. He reported what he saw to Sgt. Labitigan when he returned to the police headquarters. The following day he was ordered by the chief of police to look again at the wooden panel with traces of blood but he saw that the wooden panels were already planed ('kinatam') and the traces of blood could no longer be seen. On 23 June 1976, Patrolman Rodrigo Cedonio was ordered to look for Tita Daez in Barrio Mamala Sariaya, Quezon because Tita Daez was allegedly in the store at the time of the alleged attempted robbery and at the time Rodolfo Magnaye was allegedly killed. Patrolman Cedonio was informed by the mother of Tita Daez that she had not gone to her home at barrio Mamala. She accompanied Patrolman Cedonio in trying to locate Tita Danez. They first went to the store of Sebastiana Jumawan which turned out to be closed on that day. They then went at Muntingbayan, Tayabas, Quezon where they were able to find Tita Danez together with Francisco Jumawan, Bienvenido Jumawan and Rosita Abratiga. Mr. Cesario Jumawan, one of the accused in the above entitled criminal case and a brother-inlaw of the victim, set up the defense of alibi when he testified that between 3:00 and 4:00 o'clock in the afternoon of 19 June 1976 he was at Barrio Sampaloc, Sariaya, Quezon which is more or less three (3) kilometers away from the poblacion of Sariaya, Quezon. He went home to Barrio Pili of the same town early in the afternoon of the following day. He did not go anywhere else since 3:00 to 4:00 o'clock in the afternoon of 19 June 1976 up to and until he returned to Barrio Pili. Mr. Manuel Jumawan, another accused in the above entitled criminal case who is also a brother-in-law of the victim, likewise set up the defense of alibi when he testified that on 19 June 1976 he was in his house at Barrio Pili, Sariaya, Quezon which is about five (5) kilometers from the poblacion of Sariaya, Quezon. He went to bed at about 7:00 o'clock in the evening of 19 June 1976. He woke up at about 6:30 o'clock in the morning. He further claims that he suffers from an abnormality of the left arm which he cannot raise in a normal way and that he was suffering from said disability since childhood when he fell from a cow continuously up to the present.

TITLE VIII: CRIMES AGAINST PERSONS

Said accused presented a medical certificate, Exhibit 7, issued by Dr. Concepcion dela Merced, a radiologist of the National Orthopedic Hospital certifying to the fact that Manuel Jumawan is negative for fracture dislocation and that he suffers from a deformity of the proximal and left humerous probably from a previous fracture. There is no showing that Manuel Jumawan is incapable of raising his left arm around the neck of Rodolfo Magnaye whose actual height was not established by the evidence nor was Dr. Concepcion dela Merced presented to testify on her findings. Presentacion Jumawan-Magnaye claims that in the evening of 19 June 1976 she was in the store of Sebastiana Jumawan together with Anabelle Jumawan and Tita Daez when she heard a person who wanted to enter the store. She shouted 'thieves' ('magnanakaw'). In response to her shouts several people arrived and chased the person who wanted to enter the store. She then went to the house of Sebastiana Jumawan where hats are being made and where her father Francisco Jumawan was staying that night. While she was in the house where her father was staying, their adjoining neighbor, a certain Mateo Diamante informed her that the person being chased by several men was Rodolfo Magnaye. She, however, did not talk with any of the person who chased her husband nor does she know any of them. She then went with her father, Francisco Jumawan, to report the matter to the police whom they met at the Filipina Restaurant. While Presentacion Jumawan-Magnaye gave the name of Rodolfo Magnaye as the suspect in the attempted robbery, she did not reveal to the investigating policemen that he was her husband even if she was asked why they knew his name, neither did she inform the police that her husband was chased by several persons nor did she give the direction where her husband supposedly ran. The two policemen, Patrolmen Baera and Albufera, actually went to the store of Sebastiana Jumawan and after looking at the store, these two patrolmen told Presentacion JumawanMagnaye that because nothing happened they will continue the investigation on the next day. None of those who allegedly chased her husband that evening was even presented as a witness. Mr. Francisco Jumawan, who is the father of his three (3) other co-accused, likewise set up the defense of alibi when he testified that in the evening of 19 June 1976 at about 8:00 o'clock more or less he was alone in the house of Sebastiana Jumawan situated near the former garage of the BLTB in Sariaya, Quezon and that he was awakened only when his daughter Presentacion woke him up to ten him that someone was trying to enter the store of Sebastiana Jumawan. In a brief which is more noteworthy for legal rhetoric rather than a critical analysis of the evidence, the appellants claim that the trial court committed the following errors: THE LOWER COURT ERRED IN NOT FOCUSING OBJECTIVELY AND IMPARTIALLY THE EVIDENCE FOR THE PROSECUTION EVEN AS IT FOCUSED SUBJECTIVELY AND UNFAIRLY ON SUPPOSED WEAKNESS OF THE EVIDENCE FOR THE DEFENSE.

TITLE VIII: CRIMES AGAINST PERSONS

THE CONSTITUTIONAL GUARANTEE THAT THE ACCUSED ARE PRESUMED INNOCENT OF THE CRIME CHARGED AND ARE ENTITLED TO A RIGHT TO A DAY IN COURT CANNOT BE OVERTURNED BY THE DOCTRINE THAT APPELLATE COURTS ARE NOT PRONE TO DISTURB THE FINDINGS OF THE TRIAL COURT WITH RESPECT TO THE CREDIBILITY OF WITNESSES. THE LOWER COURT ERRED IN NOT FINDING AND TAKING INTO SERIOUS ACCOUNT THE FATAL WEAKNESSES OF THE EVIDENCE FOR THE PROSECUTION IN TERMS OF IMPROBABILITIES, GROSS INCONSISTENCIES AND IRRECONCILABLE CONTRADICTIONS. THE LOWER COURT ERRED IN GIVING CREDIT AND CREDENCE TO THE TESTIMONIES OF THE STAR PROSECUTION WITNESS CONSIDERING THE GLARING WEAKNESS THEREOF, EVEN AS THE LOWER COURT CONVENIENTLY DENIED THE DEFENSE REASONABLE OPPORTUNITY OF THE PROSECUTION WITNESSES. THE LOWER COURT ERRED IN ITS ERRONEOUS APPROACH TO AND APPLICATION OF THE PRINCIPLES CONCERNING THE DEFENSE OF ALIBI IN THE CASE AT BAR. SPECIALLY IN THE LIGHT OF THE FACT THAT THERE WAS NO POSITIVE IdENTIFICATION OF ACCUSED AND ALSO THAT THE PROSECUTION FAILED TO EFFECTIVELY REBUT THE DEFENSES OF ALIBI WHICH WOULD HAVE BEEN EASY TO DO IF SUCH DEFENSES WERE REALLY CONCOCTIONS. The foregoing assignment of errors can be reduced to the simple proposition whether the evidence against the accused, independent of their alibis, has overcome the presumption of innocence in their favor and created a moral certainty as to their guilt. Except for Vicente Recepeda and Policarpio Trinidad, the appellants do not question the credibility of the witnesses for the prosecution. Hence, the testimony of these witnesses deserves scrutiny. Vicente Recepeda was 67 years old, jobless and a resident of Lucena City when he first testified on April 29, 1977. He testified that on June 19, 1976, he went to Sariaya, Quezon, to attend the Aglipayan fiesta; he arrived there at about 5:00 o'clock and thereafter did the following: listened to the music and singing, went to the Aglipayan church and the "perya," ate at a restaurant, and walked to the public market where there was a former BLTB station. While he was waiting for a trip to Lucena, he heard the shriek of pigs being killed so he walked toward the butchers for the purpose of asking the price of pigs since he was then engaged in the business of buying and selling pigs. In fact, at one time Rodolfo Magnaye, the deceased, tied the feet of a pig which he had bought. He was not able to talk to the butchers because an unusual event intervened which in his own words was: Q. At about 9:30 o'clock in the evening of June 19, 1976, do you remember where were you? A. Yes sir. Q. Where were you on that particular date and hour?
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A. I was in the public market of Sariaya, Quezon, sir. Q. While you were in the market of Sariaya, Quezon, on that particular date and hour, do you remember if there was any unusual incident that you witnessed? A. There was, sir. Q. What was that unusual incident that happened on that particular place and hour? A. I saw a person being attacked by three persons, sir. Q. What else did you see there on that particular occasion, aside from a person being attacked by three persons? A. There was a woman who ordered the three persons to stab and kill the person being attacked by these three persons, sir. Q. Where in particular in the public market of Sariaya, Quezon did you see this incident happen? A. Inside the store within the public market of Sariaya, Quezon, sir. Q. Did you recognize, or did you come to know these three persons whom you said were inside the store within the public market of Sariaya, Quezon at about 9:30 o'clock in the evening of June 19, 1976? A. I recognize their faces, sir. Q. Did you come to know their names later on? A. Yes sir. Q. What is the name of the woman whom you said was there on that particular occasion? A. Presentacion Jumawan, sir. Q. If you will see that Presentacion Jumawan again, will you be able to Identify her? A. Yes, sir. Q. Will you please look around the courtroom and point to Presentacion Jumawan if she is here. A. She is here sir. Q. Please point her out to this Honorable Court.

TITLE VIII: CRIMES AGAINST PERSONS

A. That one sir. ATTY. ALCALA: May we respectfully ask if your honor please that the person pointed to by the witness Identify herself. COURT: Ask the person to Identify herself. INTERPRETER: What is your name? A. Presentacion Jumawan. INTERPRETER: The person pointed to by the witness your honor, Identified herself as Presentacion Jumawan. ATTY. ALCALA: And what is the name of the person whom you said was being attacked by the three men on that particular occasion inside the store? A. Rodolfo Magnaye, sir. Q. And what are the names of the three persons attacking Rodolfo Magnaye, will you please state it before this Honorable Court? A. Yes, sir, one is Francisco Jumawan, Manuel Jumawan and the other one is Cesario Jumawan. Q. That Francisco Jumawan whom you said was one of the persons attacking Rodolfo Magnaye, on that particular occasion, will you be able to recognize him if you will see him again? A. Yes, sir. Q. If this Francisco Jumawan is inside the courtroom, will you please point him out before this Honorable Court? A. Yes, sir. Q. Please do so.

TITLE VIII: CRIMES AGAINST PERSONS

A. That one sir. ATTY. ALCALA: Your honor please may we ask that the person pointed to by the witness Identify himself. COURT: Ask the Identity of the person pointed to by the witness. INTERPRETER: What is your name? A. Francisco Jumawan. INTERPRETER: The person pointed to by the witness your honor Identify himself as Francisco Jumawan. Q. And that person whom you said the name as Manuel Jumawan will you be able to recognize him if you will see him again? A. Yes, sir. Q. Please look around the courtroom and point out to this Honorable Court if Manuel Jumawan is here inside the courtroom. A. Yes, sir, that one. ATTY. ALCALA: May we ask Your Honor that the person pointed to by the witness be made to Identify himself. COURT: Ask the person pointed to by the witness to Identify himself. INTERPRETER: What is your name? A. Manuel Jumawan. INTERPRETER: The person pointed to by the witness Your Honor Identified himself as Manuel Jumawan.
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Q. And that person whom you mentioned is named Cesario Jumawan, will you be able to Identify him if you will him again? A. Yes, sir. Q. Please look around the courtroom and point to this Honorable Court the person whom you said is Cesario Jumawan. That one sir. ATTY. ALCALA: May we request your honor that the person pointed to by the witness Identify himself. COURT: Ask the person pointed to by the witness to Identify himself. INTERPRETER: What is your name? A. Cesario Jumawan. INTERPRETER: The person pointed to by the witness Identify himself as Cesario Jumawan Your Honor. Q. On that occasion what was Francisco Jumawan doing at that time you saw him? A. He was standing besides Rodolfo Magnaye and holding his hands. Q. Who was holding his hands? A. Francisco Jumawan was holding the hands of Rodolfo Magnaye, sir. Q. How about Manuel Jumawan, what was he doing? A. Manuel Jumawan was at the back of Rodolfo Magnaye with his arm around the neck of Rodolfo Magnaye, sir. Q. How about Cesario Jumawan what was he doing on that particular occasion? A. He was in front of Rodolfo Magnaye, his left hand is holding the collar of Rodolfo Magnaye and his right hand holding a bolo, sir. Q. How about Presentacion Jumawan, what was she doing on that particular occasion?
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A. She was standing inside the store ordering the three persons to stab and kill Rodolfo Magnaye, sir. Q. What happened when Presentacion Jumawan give that order? A. Rodolfo Magnaye was stabbed, sir. Q. Who stabbed Rodolfo Magnaye on that occasion? A. Cesario Jumawan, sir. Q. At that time that Cesario Jumawan stabbed Rodolfo Magnaye on that particular occasion, what were Francisco Jumawan and Manuel Jumawan doing.? A. Francisco Jumawan was holding the hands of Rodolfo Magnaye with his arms around the neck of Rodolfo Magnaye, sir. Q. What happened to Rodolfo Magnaye when he was stabbed by Cesario Jumawan on that occasion? A. He was hit by the stab, sir. Q. Where was Rodolfo Magnaye hit by the stab of Cesario Jumawan on that occasion? A. Under the right nipple, sir. Below the right nipple. Q. What did Rodolfo Magnaye do on that particular occasion after he was hit? A. He said, why did you stab me. Q. What did you do after that? A. I left, sir. Q. While you were walking away did you hear anything? .A. Yes, sir. Q. What did you hear? A. A voice of a woman shouting, thief, thief. Q. What did you do when you heard the shout of a woman? A. I hurriedly walked away, sir.

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Q. Did you finally came to know what happened to Rodolfo Magnaye as a result of that incident? A. Yes, sir. Q. What happened to him? A. He died, sir. (t.s.n., pp. 494-509.) Policarpio Trinidad was 28 years old and a laborer at the time he first testified on June 27, 1977. He testified that he knew Manuel Jumawan, Cesario Jumawan and Rodolfo Magnaye; that on June 19, 1976, at about 11:00 p.m., he was in Sariaya, Quezon, near the old station of the BLTB; and on that occasion he saw the aforesaid persons thus: Q. Will you please describe before this Honorable Court their position when you saw them? A. Their hands were on the shoulders of each other. Q. And who was in the middle? A. Rodolfo Magnaye, sir. Q. Will you please tell this Honorable Court the appearance of Rodolfo Magnaye when you saw him being in the middle of Cesario Jumawan and Manuel Jumawan on that occasion? A. His head falls and his two hands were on the shoulder of Cesario Jumawan and Manuel Jumawan. Q. Did you see where these persons were going on that particular occasion when you said you saw them? ATTY. CUARTOY Objection Your Honor, that has already been answered, that they are going out of the old BLTB station. COURT: Witness may answer. A. They cross the highway, sir. Q. In what particular place did they go when they cross the highway? A.. They went to the road opposite the Emil Welding Shop, sir. Q. Did you see on that particular occasion whether Rodolfo Magnaye was walking?
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A. He was not walking and he cannot step his feet, sir. Q. When they went to that place, near the Emil Welding Shop, did they go any further? A. They proceeded walking, sir. Q. Where did you go upon seeing them? A. I went directly to my house, sir. (t.s.n., pp. 628-631.) The testimony of Vicente Recepeda linked to that of Trinidad Alcantara and Policarpio Trinidad shows that the four appellants conspired and cooperated in the assassination of Rodolfo Magnaye. The victim and his wife had a rendezvous in the evening of June 19, 1976, in order to discuss the fate of their marriage. While it is not known if they actually conversed, the purpose of the rendezvous was in fact accomplished; the marriage was terminated by the murder of the husband. The report to the police by Presentacion that Rodolfo Magnaye had attempted to rob the store of Sebastiana Jumawan was a crude diversionary tactic to enable Cesario and Manuel to transfer the cadaver to another place. The alibis of Francisco, Cesario and Manuela are for naught. Francisco claimed that in the evening of June 19, 1976, he was in the house of Sebastiana Jumawan, not in her store. Cesario said that while his residence was Barrio Pili, Sariaya, on the night of June 19, 1976, he and his wife were in Barrio Sampaloc, Sariaya, visiting his brother Benigno Jumawan and they did not return to Pili until the next day. Manuel said that on the night of June 19, 1976, he was in his house at Barrio Pili. These alibi cannot prevail for the following reasons: (a) Francisco, Cesario and Manuel were positively Identified to be at the scene of the crime by Vicente Recepeda and Cesario and Manuel were similarly Identified by Policarpio Trinidad; and (b) the places where they claimed to be were not far from the scene of the crimeso that it was not impossible fro them to be there. Sebastiana Jumawan's house where Francisco was supposed to be is within walking distance from the former's store. Barrio Sampaloc, where Cesario claimed he was, is only about three kilometers from the poblacion of Sariaya. Barrio Pili, where Manuel said he slept that night, is about five kilometers from the same poblacion. Presentacion should have been accused of parricide but as it is, since her relationship to the deceased is not alleged in the information, she, like the others, can be convicted of murder only qualified by abuse of superior strength.

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Although not alleged in the information, relationship as an aggravating circumstance should be assigned against the appellants. True, relationship is inherent in parricide, but Presentacion stands convicted of murder. And as to the others, the relationships of father-in-law and brotherin-law aggravate the crime. (Aquino, Penal Code, Vol. I. p. 406 [1976].) The penalty for murder with an aggravating circumstances is death. However, for lack of necessary votes, the penalty is reduced to reclusion perpetua. WHEREFORE, the jugment of the court a quo is hereby affirmed in toto. No costs. SO ORDERED.

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Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. L-47941 April 30, 1985 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JAIME TOMOTORGO y ALARCON, defendant-appellant. ALAMPAY, J.: Jaime Tomotorgo y Alarcon, the accused-appellant in this case, appeals from the decision rendered on December 22, 1977, by the Court of First Instance of Camarines Sur, Branch IV, in Criminal Case No. 403 of said court finding him guilty of the crime of parricide for having killed his wife Magdalena de los Santos. The dispositive portion of said judgment reads, as follows: WHEREFORE, in view of the foregoing considerations, the accused Jaime Tomotorgo y Alarcon is hereby condemned to suffer the penalty of reclusion perpetua and to indemnify the heirs of the deceased Magdalena delos Santos in the sum of P12,000.00 without subsidiary imprisonment, plus costs. And considering the circumstances under which the offense was committed, the court hereby recommends executive clemency for him, after serving the minimum of the medium penalty of prision mayor. Let copy of this decision be furnished, his Excellency, the President of the Philippines, and the Chairman of the Board of Pardons and Parole. SO ORDERED. Given at Naga City, this 22nd day of December, 1977. SGD. ALFREDO S. REBUENA Judge (Rollo, pg. 10) The facts of this case as recited in the decision of the trial court and in the appellee's brief stand uncontroverted and undisputed. From the evidence submitted it is disclosed that the victim, Magdalena de los Santos, was the wife of the herein accused. Several months prior to the occurrence of the fatal incident on June 23, 1977, Magdalena de los Santos had been persistently asking her husband to sell the conjugal home which was then located at Sitio Dinalungan, Barangay Cabugao, Municipality of Siruma, Camarines Sur. She wanted their family to transfer to the house of her husband's in-laws which is in the town of Tinambac, Camarines Sur. (TSN, pp. 610, December 13, 1977). Accused Tomotorgo would not accede to his wife's request. He did not like to abandon the house wherein he and his wife were then living. Furthermore, he had no inclination to leave because he has many plants and improvements on the land which he was

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then farming in said municipality of Siruma, Camarines Sur, a town very far from the place of his in-laws where his wife desired their family to transfer to. On June 23, 1977, at about seven o'clock in the morning, the accused left his home to work on his farm Upon his return at about nine o'clock that same morning. He found his wife and his threemonth old baby already gone. He proceeded to look for both of them and sometime later on, on a trail about two hundred (200) meters from their home, he finally saw his wife carrying his infant son and bringing a bundle of clothes. He asked and pleaded with his wife that she should return home with their child but she adamantly refused to do so. When appellant sought to take the child from his wife, the latter threw the baby on the grassy portion of the trail hereby causing the latter to cry. This conduct of his wife aroused the ire of the herein accused. Incensed with wrath and his anger beyond control, appellant picked lip a piece of wood nearby and started hitting his wife with it until she fell to the ground complaining of severe pains on her chest. Realizing what he had done, the accused picked his wife in his arms and brought her to their home. He then returned to the place where the child was thrown and he likewise took this infant home. Soon thereafter, Magdalena de los Santos died despite the efforts of her husband to alleviate her pains. After the accused changed the dress of his wife, he reported the tragic incident to the Barangay Captain of their place who brought him to Policeman Arellosa to whom the accused surrendered. He also brought with him the piece of wood he used in beating his wife. Charged with the crime of parricide, the accused at his arraignment on November 24, 1977, with assistance from his counsel de-oficio, pleaded not guilty to the said offense. However, when his case was called for trial on December 13, 1977, his counsel manifested to the court that after his conference with the accused, the latter expressed a desire to change his previous plea of not guilty to that of guilty. Accordingly, and upon motion by the counsel of the accused and without objection on the part of the prosecution, the trial court allowed the accused to withdraw his original plea. Upon being re-arraigned, the accused entered a plea of guilty. He confirmed the manifestations made by his counsel to the court regarding his desire to change his initial plea. He expressed his realization of the gravity of the offense charged against him and the consequences of his plea. His counsel was then permitted by the court to establish the mitigating circumstances which were then invoked in favor of the accused. After the accused had testified and upon his plea given in open court, the court below found him guilty of the crime of parricide, but with three mitigating circumstances in his favor, namely: voluntary surrender, plea of guilty, and that he acted upon an impulse so powerful as naturally to have produced passion and obfuscation. With the imposition by the court below of the penalty of reclusion perpetua on the herein accused and the subsequent denial of his motion for reconsideration of the judgment rendered against him, the accused through his counsel filed a notice of appeal to this Court. In his appeal, accused argues and contends that the lower court erred: 1. In disregarding its own findings of fact which showed manifest lack of intent to kill;

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2. In disregarding the provisions of Article 49 of the Revised Penal Code which prescribes the proper applicable penalty where the crime committed is different from that intended; 3. In not following the mandatory sequence of procedures for determining the correct applicable penalty; 4. In denying the appellant the benefits of the Indeterminate Sentence Law. (Appellant's Brief, pg. 1, pars. 1-4) We find no merit in the appeal of the accused herein which assails only the correctness of the penalty imposed by the trial court on him. Appellant submits that the penalty for the felony committed by him which is parricide being higher than that for the offense which he intended to commit, and which he avers to be that of physical injuries only, the provisions of Article 49 of the Revised Penal Code which relate to the application of penalties should have been observed and followed by the trial court. The said provision of law which accused invokes provides that: ART. 49. Penalty to be imposed upon the principals when the crime committed is different from that intended in cases in which the felony committed is different from that which the offender intended to commit, the following rules shag be observed; 1. If the penalty prescribed for the felony committed be higher than that corresponding to the offense which the accused intended to commit, the penalty corresponding to the latter shall be imposed in its maximum period. xxx xxx xxx Continuing, appellant argues in his appeal brief submitted to this Court, that: xxx xxx xxx The felony actually committed, parricide. has a higher penalty (reclusion perpetua to death) than the felony intended, qualified physical injuries (reclusion temporal medium and maximum). Hence, since the penalty corresponding to the felony intended shall be imposed in its maximum period, the prescribed penalty is therefore reclusion temporal maximum. This is a divisible penalty. Under Article 64, sub-par. 5, of the Penal Code, When there are two or more mitigating circumstances and no aggravating circumstances are present, the court shall impose the penalty next lower to that prescribed by law, in the period that it may deem applicable, according to the number and nature of such circumstances. The trial court itself found "that the accused is entitled to three (3) mitigating circumstances with no aggravating circumstances, namely: voluntary surrender, plea of guilty, and obfuscation. We submit that the plea of guilty, which, as we had shown earlier, was
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improvidently made, should no longer be considered. This leaves only two mitigating with no aggravating. Sufficient compliance with the law. Hence, an automatic lowering of the penalty by one degree, or to reclusion temporal medium This being a case where a period constitutes the entire range of the penalty prescribed, and therefore, also a degree. (Appellant's Brief, pp. 8-9) Appellant maintains the belief that he should be punished only for the offense he intended to commit which he avers to be serious physical injuries, qualified by the fact that the offended party is his spouse. Pursuant to the sub-paragraph of paragraph 4 of Art. 263 of the Revised Penal Code and as his wife is among the persons mentioned in Art. 246 of the same code, appellant contends that the penalty imposable should then be reclusion temporal in its medium and maximum periods. On this mistaken premise, appellant therefore claims that the penalty prescribed by law for his offense is divisible and he should thus be entitled to the benefits of the Indeterminate Sentence Law. These contentions of the accused are manifestly untenable and incorrect. Article 4 of the Revised Penal Code expressly states that criminal liability shall be incurred by any person committing a felony (delito) although the wrongful act be different from that which he intended and that the accused is liable for all the consequences of his felonious acts. The reference made by the accused to Article 263 of the Revised Penal Code which prescribes graduated penalties for the corresponding physical injuries committed is entirely misplaced and irrelevant considering that in this case the victim died very soon after she was assaulted. It will be, therefore, illogical to consider appellant's acts as falling within the scope of Article 263 of the Revised Penal Code. The crime committed is parricide no less. We are in complete accord with and we sustain the ruling made by the courts below that the accused is not entitled to the benefits of the Indeterminate Sentence Law. The court sustains the submissions of the appellee that ... Article 49 of the Revised Penal Code does not apply to cases where more serious consequences not intended by the offender result from his felonious act because, under Article 4, par. I of the same Code, he is liable for all the direct and natural consequences of his unlawful act. His lack of intention to commit so grave a wrong is, at best mitigating (Article 13, par. 3). Article 49 applies only to cases where the crime committed is different from that intended and where the felony committed befalls a different person (People vs. Albuquerque, 59 Phil. 150). Article 246 of the Revised Penal Code punished parricade with the penalty of reclusion perpetua to death, which are two indivisible penalties. As the commission of the act was attended by mitigitating circumstances with no aggravating circumstances, the lesser penalty, which is reclusion perpetua, should be imposed (People vs. Laureano, et al., 71 Phil. 530; People vs. Francisco, 78 Phil. 697; People vs. Belarmino, 91 Phil. 118) Appellee's Brief, pp. 6-7). (Emphasis supplied)

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We hold that the fact that the appellant intended to maltreat the victim only or inflict physical imjuries does not exempt him from liability for the resulting and more serious crime committed. In the case of People vs. Climaco Demiar, 108 Phil. 651, where the accused therein had choked his mother in a fit of anger because the latter did not prepare any food for him, it was ruled that hte crime committed by Demiar is parricide (Article 246, Revised Penal Code), the deceased victim of his criminal act being his legitimate mother. Said crime was declared as punishable with reclusion perpetua to death. As the mitigating circumstance of alck of intent to commit so grave a wrong. (Article 13 (3 Id.) The penalty imposed on the herein accused is therefore correct in the light of the relevant provisions of law and jurisprudence. The trial court in its consideration of this case had added a recommendation that "executive clemency be extended to the accused-appellant after his service of the minimum of the medium penalty of prison mayor." The Solicitor General likewise concludes and prays in the People's Brief that in view of the circumstances which attended the commission of the offense, a recommendation for the commutation of the penalty would be appropriate. (Appellee's Brief, pg. 7). This Court is constrained to take note that the accused-appellant is said to have been in detention since June 23, 1977 or for more than seven years already. This Court can do no less than express its hope that hte accused-appellant can be now extended an absolute or conditional pardon by the President of the Republic of the Philippines or that there be a commutation of his sentence so that he may qualify and be eligible for parole. WHEREFORE, the appealed judgment is hereby affirmed without any pronouncement as to costs. Considering the circumstances which attended the commission of the offense, the manifest repentant attitude of the accused and his remorse for his act which even the trial court made particular mention of in its decision and the recommendation made by the Office of the Solicitor General as well as number of years that the accused-appellant had been imprisoned, this Court can do no less than recommend that executive clemency be extended to the accused-appellant, Jaime Tomotorgo y Alarcon, or that his sentence be commuted so that he can now qualify and be considered eligible for parole. This recommendation of the Court should be promptly brought to the attention of the President of the Republic of the Philippines by the proper authorities in whose custody the herein accused has been placed. Aside from this, let copy of this decision be furnished the Office of the President of the Republic of the Philippines and the Chairman of the Board of Pardons and Parole. SO ORDERED.

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DEATH OR PHYSICAL INJURIES INFLICTED UNDER EXCEPTIONAL CIRCUMSTANCES Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 74433 September 14, 1987 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FRANCISCO ABARCA, accused-appellant. SARMIENTO, J.: This is an appeal from the decision of the Regional Trial Court of Palo, Leyte, sentencing the accused-appellant Francisco Abarca to death for the complex crime of murder with double frustrated murder. The case was elevated to this Court in view of the death sentence imposed. With the approval of the new Constitution, abolishing the penalty of death and commuting all existing death sentences to life imprisonment, we required the accused-appellant to inform us whether or not he wished to pursue the case as an appealed case. In compliance therewith, he filed a statement informing us that he wished to continue with the case by way of an appeal. The information (amended) in this case reads as follows: xxx xxx xxx The undersigned City Fiscal of the City of Tacloban accuses Francisco Abarca of the crime of Murder with Double Frustrated Murder, committed as follows: That on or about the 15th day of July, 1984, in the City of Tacloban, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with deliberate intent to kill and with evident premeditation, and with treachery, armed with an unlicensed firearm (armalite), M-16 rifle, did then and there wilfully, unlawfully and feloniously attack and shot several times KHINGSLEY PAUL KOH on the different parts of his body, thereby inflicting upon said KHINGSLEY PAUL KOH gunshot wounds which caused his instantaneous death and as a consequence of which also caused gunshot wounds to LINA AMPARADO and ARNOLD AMPARADO on the different parts of their bodies thereby inflicting gunshot wounds which otherwise would have caused the death of said Lina Amparado and Arnold Amparado, thus performing all the acts of execution which should have produced the crimes of murders as a consequence, but nevertheless did not produce it by reason of causes independent of his will, that is by the timely and able medical assistance rendered to Lina Amparado and Arnold Amparado which prevented their death. 1

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xxx xxx xxx On arraignment, the accused-appellant pleaded not guilty. The Solicitor General states accurately the facts as follows: Khingsley Paul Koh and the wife of accused Francisco Abarca, Jenny, had illicit relationship. The illicit relationship apparently began while the accused was in Manila reviewing for the 1983 Bar examinations. His wife was left behind in their residence in Tacloban, Leyte (pp. 4547, 65, tsn, Sept. 24, 1984). On July 15, 1984, the accused was in his residence in Tacloban, Leyte. On the morning of that date he went to the bus station to go to Dolores, Eastern Samar, to fetch his daughter. However, he was not able to catch the first trip (in the morning). He went back to the station in the afternoon to take the 2:00 o'clock trip but the bus had engine trouble and could not leave (pp. 5-8, tsn, Nov. 28, 1985). The accused, then proceeded to the residence of his father after which he went home. He arrived at his residence at the V & G Subdivision in Tacloban City at around 6:00 o'clock in the afternoon (pp. 8-9, tsn, Id.). Upon reaching home, the accused found his wife, Jenny, and Khingsley Koh in the act of sexual intercourse. When the wife and Koh noticed the accused, the wife pushed her paramour who got his revolver. The accused who was then peeping above the built-in cabinet in their room jumped and ran away (pp. 9-13, tsn, Id.). The accused went to look for a firearm at Tacloban City. He went to the house of a PC soldier, C2C Arturo Talbo, arriving there at around 6:30 p.m. He got Talbo's firearm, an M-16 rifle, and went back to his house at V & G Subdivision. He was not able to find his wife and Koh there. He proceeded to the "mahjong session" as it was the "hangout" of Kingsley Koh. The accused found Koh playing mahjong. He fired at Kingsley Koh three times with his rifle (pp. 13-19, tsn, Id.). Koh was hit. Arnold and Lina Amparado who were occupying a room adjacent to the room where Koh was playing mahjong were also hit by the shots fired by the accused (pp. 3449, tsn, Sept. 24, 1984). Kingsley Koh died instantaneously of cardiorespiratory arrest due to shock and hemorrhage as a result of multiple gunshot wounds on the head, trunk and abdomen (pp. 28-29, tsn, Sept. 24, 1984; see also exh. A): Arnold Amparado was hospitalized and operated on in the kidney to remove a bullet (pp. 17-23, tsn, Oct. 17, 1984; see also exh. C). His wife, Lina Amparado, was also treated in the hospital as she was hit by bullet fragments (p. 23, tsn, Id.). Arnold Amparado who received a salary of nearly P1,000.00 a month was not able to work for 1-1/2 months because of his wounds. He spent P15,000.00 for medical expenses while his wife spent Pl,000.00 for the same purpose (pp. 24-25, tsn, Id. ). 2 On March 17, 1986, the trial court rendered the appealed judgment, the dispositive portion whereof reads as follows: xxx xxx xxx WHEREFORE, finding the accused, Francisco Abarca guilty beyond reasonable doubt of the complex crime of murder with double frustrated murder as charged in the amended information, and pursuant to Art. 63 of the Revised Penal Code which does not consider the
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effect of mitigating or aggravating circumstances when the law prescribes a single indivisible penalty in relation to Art. 48, he is hereby sentenced to death, to indemnify the heirs of Khingsley Paul Koh in the sum of P30,000, complainant spouses Arnold and Lina Amparado in the sum of Twenty Thousand Pesos (P20,000.00), without subsidiary imprisonment in case of insolvency, and to pay the costs. It appears from the evidence that the deceased Khingsley Paul Koh and defendant's wife had illicit relationship while he was away in Manila; that the accused had been deceived, betrayed, disgraced and ruined by his wife's infidelity which disturbed his reasoning faculties and deprived him of the capacity to reflect upon his acts. Considering all these circumstances this court believes the accused Francisco Abarca is deserving of executive clemency, not of full pardon but of a substantial if not a radical reduction or commutation of his death sentence. Let a copy of this decision be furnished her Excellency, the President of the Philippines, thru the Ministry of Justice, Manila. SO ORDERED. 3 xxx xxx xxx The accused-appellant assigns the following errors committed by the court a quo: I. IN CONVICTING THE ACCUSED FOR THE CRIME AS CHARGED INSTEAD OF ENTERING A JUDGMENT OF CONVICTION UNDER ARTICLE 247 OF THE REVISED PENAL CODE; II. IN FINDING THAT THE KILLING WAS AMENDED BY THE QUALIFYING CIRCUMSTANCE OF TREACHERY. 4 The Solicitor General recommends that we apply Article 247 of the Revised Penal Code defining death inflicted under exceptional circumstances, complexed with double frustrated murder. Article 247 reads in full: ART. 247. Death or physical injuries inflicted under exceptional circumstances . Any legally married person who, having surprised his spouse in the act of committing sexual intercourse with another person, shall kill any of them or both of them in the act or immediately thereafter, or shall inflict upon them any serious physical injury, shall suffer the penalty of destierro. If he shall inflict upon them physical injuries of any other kind, he shall be exempt from punishment. These rules shall be applicable, under the same circumstances, to parents with respect to their daughters under eighteen years of age, and their seducers, while the daughters are living with their parents.
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Any person who shall promote or facilitate prostitution of his wife or daughter, or shall otherwise have consented to the infidelity of the other spouse shall not be entitled to the benefits of this article. We agree with the Solicitor General that the aforequoted provision applies in the instant case. There is no question that the accused surprised his wife and her paramour, the victim in this case, in the act of illicit copulation, as a result of which, he went out to kill the deceased in a fit of passionate outburst. Article 247 prescribes the following elements: (1) that a legally married person surprises his spouse in the act of committing sexual intercourse with another person; and (2) that he kills any of them or both of them in the act or immediately thereafter. These elements are present in this case. The trial court, in convicting the accused-appellant of murder, therefore erred. Though quite a length of time, about one hour, had passed between the time the accusedappellant discovered his wife having sexual intercourse with the victim and the time the latter was actually shot, the shooting must be understood to be the continuation of the pursuit of the victim by the accused-appellant. The Revised Penal Code, in requiring that the accused "shall kill any of them or both of them . . . immediately" after surprising his spouse in the act of intercourse, does not say that he should commit the killing instantly thereafter. It only requires that the death caused be the proximate result of the outrage overwhelming the accused after chancing upon his spouse in the basest act of infidelity. But the killing should have been actually motivated by the same blind impulse, and must not have been influenced by external factors. The killing must be the direct by-product of the accused's rage. It must be stressed furthermore that Article 247, supra, does not define an offense. 5 In People v. Araque, 6 we said: xxx xxx xxx As may readily be seen from its provisions and its place in the Code, the above-quoted article, far from defining a felony, merely provides or grants a privilege or benefit amounting practically to an exemption from an adequate punishment to a legally married person or parent who shall surprise his spouse or daughter in the act of committing sexual intercourse with another, and shall kill any or both of them in the act or immediately thereafter, or shall inflict upon them any serious physical injury. Thus, in case of death or serious physical injuries, considering the enormous provocation and his righteous indignation, the accused who would otherwise be criminally liable for the crime of homicide, parricide, murder, or serious physical injury, as the case may be is punished only withdestierro. This penalty is mere banishment and, as held in a case, is intended more for the protection of the accused than a punishment. (People vs. Coricor, 79 Phil., 672.) And where physical injuries other than serious are inflicted, the offender is exempted from punishment. In effect, therefore, Article 247, or the exceptional circumstances mentioned therein, amount to an exempting circumstance, for even where death or serious physical injuries is inflicted, the penalty is so greatly lowered as to result to no punishment at all. A different interpretation, i.e., that it defines and penalizes a distinct crime, would make the exceptional circumstances which practically exempt the accused from criminal liability integral elements of the offense, and thereby compel the prosecuting officer to plead, and, incidentally, admit them, in the
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information. Such an interpretation would be illogical if not absurd, since a mitigating and much less an exempting circumstance cannot be an integral element of the crime charged. Only "acts or omissons . . . constituting the offense" should be pleaded in a complaint or information, and a circumstance which mitigates criminal liability or exempts the accused therefrom, not being an essential element of the offense charged-but a matter of defense that must be proved to the satisfaction of the court-need not be pleaded. (Sec. 5, Rule 106, Rules of Court; U.S. vs. Campo, 23 Phil., 368.) That the article in question defines no crime is made more manifest when we consider that its counterpart in the old Penal Code (Article 423) was found under the General Provisions (Chapter VIII) of Title VIII covering crimes against persons. There can, we think, hardly be any dispute that as part of the general provisions, it could not have possibly provided for a distinct and separate crime. xxx xxx xxx We, therefore, conclude that Article 247 of the Revised Penal Code does not define and provide for a specific crime, but grants a privilege or benefit to the accused for the killing of another or the infliction of serious physical injuries under the circumstances therein mentioned. ... 7 xxx xxx xxx Punishment, consequently, is not inflicted upon the accused. He is banished, but that is intended for his protection. 8 It shall likewise be noted that inflicting death under exceptional circumstances, not being a punishable act, cannot be qualified by either aggravating or mitigating or other qualifying circumstances, We cannot accordingly appreciate treachery in this case. The next question refers to the liability of the accused-appellant for the physical injuries suffered by Lina Amparado and Arnold Amparado who were caught in the crossfire as the accusedappellant shot the victim. The Solicitor General recommends a finding of double frustrated murder against the accused-appellant, and being the more severe offense, proposes the imposition of reclusion temporal in its maximum period pursuant to Article 48 of the Revised Penal Code. This is where we disagree. The accused-appellant did not have the intent to kill the Amparado couple. Although as a rule, one committing an offense is liable for all the consequences of his act, that rule presupposes that the act done amounts to a felony. 9 But the case at bar requires distinctions. Here, the accused-appellant was not committing murder when he discharged his rifle upon the deceased. Inflicting death under exceptional circumstances is not murder. We cannot therefore hold the appellant liable for frustrated murder for the injuries suffered by the Amparados. This does not mean, however, that the accused-appellant is totally free from any responsibility. Granting the fact that he was not performing an illegal act when he fired shots at the victim, he cannot be said to be entirely without fault. While it appears that before firing at the deceased, he uttered warning words ("an waray labot kagawas,") 10that is not enough a precaution to absolve
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him for the injuries sustained by the Amparados. We nonetheless find negligence on his part. Accordingly, we hold him liable under the first part, second paragraph, of Article 365, that is, less serious physical injuries through simple imprudence or negligence. (The records show that Arnold Amparado was incapacitated for one and one-half months; 11 there is no showing, with respect to Lina Amparado, as to the extent of her injuries. We presume that she was placed in confinement for only ten to fourteen days based on the medical certificate estimating her recovery period.) 12 For the separate injuries suffered by the Amparado spouses, we therefore impose upon the accused-appellantarresto mayor (in its medium and maximum periods) in its maximum period, arresto to being the graver penalty (than destierro). 13 WHEREFORE, the decision appealed from is hereby MODIFIED. The accused-appellant is sentenced to four months and 21 days to six months of arresto mayor. The period within which he has been in confinement shall be credited in the service of these penalties. He is furthermore ordered to indemnify Arnold and Lina Amparado in the sum of P16,000.00 as and for hospitalization expense and the sum of P1,500.00 as and for Arnold Amparado's loss of earning capacity. No special pronouncement as to costs. IT IS SO ORDERED.

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MURDER AND HOMICIDE Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. L-32103 September 28, 1984 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JOSE BUENSUCESO, RODOLFO AGUILAR, CONRADO IZON and ERNESTO JOSON, defendants-appellants. MELENCIO-HERRERA, J.: This is an appeal from the Decision of the then Court of First Instance of Bataan, sitting in Balanga, in Criminal Case No. 6182, convicting Jose BUENSUCESO, Rodolfo AGUILAR, Conrado IZON and Ernesto JOSON, all members of the police force of Dinalupihan, Bataan, of Murder, and sentencing "said accused each to suffer the penalty of RECLUSION PERPETUA; to jointly and severally indemnify the heirs of the deceased Pariseo Tayag in the amount of P12,000.00; and each to pay the proportionate costs." 1 The Information filed against said four accused together with two other policeman, Eduardo MALLARI and Fidel DE LA CRUZ, charged them with Murder as follows: That on April 21, 1967 at about 5:00 o'clock in the afternoon at Dinalupihan, Bataan, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused by conspiring, confederating and helping one another, with intent to kill, treachery and by taking advantage of their official positions and superior strength, using their service revolvers did then and there willfully, unlawfully and feloniously shoot one PARESEO TAYAG Y ANGELES hitting him in the different parts of his body inflicting upon his person several gunshot wounds which caused his death to the damage and prejudice of his heirs. 2 After pleas of not guilty and after due trial, accused BUENSUCESO SUCESO, AGUILAR, IZON and JOSON were found guilty of Murder and, as aforestated, were sentenced to suffer reclusion perpetua. MALLARI and DE LA CRUZ were both absolved on reasonable doubt. 3 Three separate Briefs were filed: the first was for IZON and JOSON; the other was for BUENSUCESO; and the third one was for AGUILAR. The Solicitor General filed a consolidated Brief. The prosecution synthesized the occurrence as follows:

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Between 5:00 and 6:00 o'clock in the afternoon of April 21, 1967, while prosecution witness Apolonio Salvador was in his small store beside the market near the municipal building of Dinalupihan Bataan, he saw Patrolman Rodolfo Aguilar and Pariseo Tayag con. conversing as they were walking side by side, each resting his hand on the shoulder of the other, going towards the municipal building (pp. 22-24, tsn, July 25, 1967). Pat. Aguilar was trying to take the fan knife of Tayag, but could not take it because Tayag prevented him from taking it by gripping it with his right hand and swaying it left and right as ff playing (p. 24, tsn, Id.). Tayag did not want to , the give knife because he was not making any trouble (p. 25, tsn., Id.). At the suggestion of Pat. Aguilar, Tayag readily agreed to go to the office of the chief of police (pp. 25, 26, tsn, Id.). When they arrived in the said office, there were two persons there, namely, Enrique Mallo and Pat. Eduardo Mallari (p. 27, t.s.n. Id.). Pat. Mallari was then the municipal guard and in uniform (p 8, tsn., July 26, 1967). Subsequently, a heated argument took place between Pat. Aguilar and Tayag arising from the latter's refusal to give his fan knife to the former (p. 28, tsn July 25, 1967). later on, Pat. Fidel de la Cruz appeared at the doorway (pp. 30, 32, tsn Id.). Thereafter , when Tayag was about to leave the office, Chief of Police Adriano Canlas arrived and inquired what the trouble was an about (p. 31, tsn, Id.). Pat. Aguilar answered that the two of them (Aguilar and Canlas) had been cursed by Tayag (p. 32, tsn Id.). Tayag asserted that he did not curse either of them, but that Aguilar was to force him to give up his knife (p. 32, tsn, Id.). Thereafter Tayag hurriedly left the office. He was followed by Pat. Aguilar, Mallari and de la Cruz who walked fast, with Aguilar and Mallari holding guns (p. 33, tan, Id.). After having gone out of the building, Pat. Aguilar fired his gun upward (p. 34, tsn, Id.). Hearing the shot, Tayag turned about, then retreated backwards until he reached the fence of the plaza (Id.). When Tayag was near the wooden fence about a knee high, Pat. Aguilar aimed his gun at Tayag and fired, hitting him above the right knee (pp. 34, 36, tsn, Id.). Tayag continued to run towards his house followed by de la Cruz without a gun (p. 36, tsn, Id.). Pat. Mallari went to the waiting shed to intercept Tayag (Id.). Pat. Mallari had a gun at that time (p. 37, tsn, Id.). Pat. Aguilar followed Mallari in the shed and they took opposite sides of the road, that is, Rizal Street, in front of the Catholic Church (Id.). Then there were several successive gun shots, more or less nine in number (p. 39 tsn, tsn, Id.). After the commotion, Tayag was seen lying prostrate near the back of a jeep parked at the corner of Rizal and San Juan Streets, about 60 meters away from the municipal building (p. 38, tsn. Id.). Pat. de la Cruz took the knife from Tayag and gave it to Pat. Jose Buensuceso (p. 39, tsn, Id.), who at the precise moment had his revolver tucked in its holster (p. 42, tsn, Id.). Pat. Conrado Izon and Pat. Ernesto Jose were also seen in the immediate vicinity of the crane scene by witness Apolonio Salvador (Id.). Witness did not know, however, where Pat. Izon and Joson came from (p. 45, tsn, Id.). Both had their guns in their holsters (Id.). Later, at about 5:50 that afternoon of April 21, 1967, Sgt. Romualdo-Espiritu of the P.C. stationed at Balanga Bataan, arrived at the corner of Rizal and San Juan Bautista streets in Dinalupihan (pp. 1, 2, tsn, July 26, 1967). He noticed a commotion in the plaza and as a peace officer he inquired from people around what was going on (p. 2, tsn, July 26, 1967). He was told that a certain person was shot (Id.). He went to the place where people were converging
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and found Pariseo Tayag dead lying down on a pool of blood, some 10 to 15 yards from the corner of Rizal and San Juan Bautista Streets (Id.). He ordered that deceased be brought to the municipal health center where a cursory inspection of the cadaver was made by the Municipal Health Officer, Dr. Sta. Maria (Id.) and photographs (Exhs. "F" and "G", p. 6, tan, Id.) taken of the deceased (p. 5, tsn, Id.). Thereafter, he proceeded to the municipal building and investigated (p. 2, tsn, Id.). Upon learning that some police officers were involved he investigated the suspects. He first saw Pat. Aguilar who was then recounting the incident to Pat. de la Cruz (Id.). He asked for his service pistol inspected the cylinder and found three (3) empty shells and three (3) live ammunitions (Id.). He smelled the barrel Of the gun and found out that it had been fired ( Id.). Then he proceeded to the office of the chief of police (p. 3, tsn, Id.) Moments later, Pat. Buensuceso arrived (Id.). He asked for Buensuceso's service revolver, inspected the cylinder, and found four (4) empty shells and two (2) live ammunitions (Id.). He smelled the barrel of the gun and found that it also had been fired. He also asked for the service revolver of Pat. de la Cruz but the latter manifested that he had no firearm at the time but pointed to Pat. Mallari from whom he (Pat. de la Cruz) got a pistol while they were on the ground door of the municipal building (Id.). Sgt. Espiritu then proceeded to the Patrol base or detachment of the 161st PC Co. at Layac Dinalupihan, Bataan and from there he reported the incident by calling up headquarters in Balanga, Bataan (Id.), and at the same time asked for investigators to come over ( Id.). Later on, while Sgt. Espiritu was preparing an on-the-spot report in the office of the Dinalupihan Police Dept. Capt. Antonio Resurreccion of the 161st PC Co. arrived with his investigators (Id.). Sgt. Espiritu turned over to Capt. Resurreccion the revolvers of Aguilar and Buensuceso, which are both Smith and Wesson Cal. 38, Sgt. Espiritu Identified in court as Exhibit "C"a Smith and Wesson cal. 38 revolver, with Serial No. K-617092 as belonging to Pat. Buensuceso, and as Exhibit 'D' the other revolver with Serial No. C-73130, Cal. 38, as belonging to Pat. Aguilar (p. 4, tsn, July 26, 1967). Jose Penaflor, Acting Chief of Police of Dinalupihan, Bataan (pp 12, 13, 14, tsn, Id.) and the municipal treasurer, Ludovico Simpao (pp. 17, 18, tsn, Id.), testified that on the basis of the memorandum receipt and records in their offices (Exhibits "H", "I", "J"), the respective firearms issued to the policemen of Dinalupihan, Bataan, bear the following serial numbers: Eduardo (Exh. H-1; J-4) Mallari Serial No. L597615

Rodolfo Aguilar Serial No.C 73130 Jose (Exh H-3; J-3) Ernesto (Exh. H-4; J-3) Buensuceso Joson Serial Serial No. No. K-617092 K-617201

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Conrado (Exh. H-5; 1-1)

Izon

Serial

No.

73534

The deceased Pariseo Tayag died of gunshot wounds as found by Dr. Ceferino Cunanan, a medico-legal officer of the National Bureau of Investigation. His findings and conclusions are reflected in his necropsy report No. N-67-445 (Exh. L; p. 5, tsn., Aug. 15, 1967), as follows: 1. Entrance located at the scapular region, left, directed forward slightly upward and medially; ... 2. Entrance located at the infrascapular region, left, * * * directed forward, upward and medially; * * * ... 3. Entrance located at the thigh, right, distal 3rd, antero-lateral aspect, *** directed backward, downward and laterally; ... 4. Entrance located at the leg, right, proximal ward, antero-lateral aspect * * * directed upward, backward and laterally; * * * fracturing communitedly the upper 3rd of the tibia and a slug was recovered at a point at the level of the knee, * * * Dr. Cunanan testified that gunshot wound No. 4 is not a through and though wound, but instead the bullet was recovered with its course at Exhibits Q-3 and S (pp. 7, 8, tsn, Aug. 15, 1967). The bullet is preserved in their office and the photo of the slug is shown in Exhibits T and T-1 (p. 8, tsn, Id.). He explained that gunshot wounds Nos. 1 and 2 were inflicted by a .38 caliber bullet (p. 8, tsn, Id.), while wound No. 3 may have been inflicted by a .32 or .38 cal. bullet. Wound No. 1 must have been fired by an assailant behind and to the left of the victim (p. 9, tsn, Id.). The shot causing Wound No, 2 must have been fired by an assailant while in the same position when Wound No. 1 was inflicted on the victim. Wound No. 3 is located on the lower extremity which is movable part of the body and could be inflicted on the victim assuming different positions. Wound No. 4 could be inflicted when the victim was lying down and assailant was in a lower position than the victim both standing erect face to face. Wounds No. 1 and 2 were fatal. Wound No. 1 involves the heart and lungs and Wound No. 2 involves the lungs, spleen and the liver (pp. 9, 10, tsn, Id.). Lunges diphenylamine tests were made on the dorsal aspect of both hands of the accused from the wrist joint to the fingertips, which produced the following results, to wit: Chemistry Report No. G-67-204-Conrado Izon Left Hand Positive Right Hand Negative Chemistry Report No. G-67-203-Fidel de la Cruz Negative results

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Chemistry Report No. G-67-202-Ernesto Joson Left Hand Positive Right Hand Negative Chemistry Report No. G-67-200 Eduardo Mallari Negative results. Filemon Mamaril, Supervising Ballistician and Chief, Forensic Ballistic of the National Bureau of Investigation, who conducted a ballistic examination of the firearms and shells and ammunitions received from the office of the provincial fiscal of Bataan in connection with this case, rendered his Ballistic Reports Nos. B-41-867 and B-44-867 (Exh. V, pp. 4, 5, tsn, April 17, 1968). Exhibit W which is a deformed jacketed bullet which was received from Dr. Cunanan (p. 6, tsn, Id.), showed that it was fired from the Smith and Wesson revolver, Cal. 38, bearing Serial No. K-617092 (p. 7, tsn, Id.). He also found that the empty shells, Exhs. "Y", "Y-1" and "Y-2" and "Y-3" were fired from the revolver marked Exh. "C" (Id.). The three empty shells, Exhs. "Y-4", "Y-5" and "Y-6" were fired from a Smith and Wesson revolver, Cal. 38, with Serial No. C-73130 (pp. 123, 124, tsn., April 18, 1969) marked Exh. "D" (p. 4, tsn., July 26, 1967). 4 The testimony of one of the accused, Eduardo MALLARI, in his defense was summarized by the Trial Court thus: In his defense, the accused Eduardo Mallari testified that at about 5:30 o'clock in the afternoon of April 21, 1967, he closed the office of the Chief of Police on the 2nd floor of the municipal building. Then he went down to the office of the Deputy Chief of Police on the ground floor. While descending to the ground floor, he saw a person in the office of the Deputy Chief of Police facing Cpl. Aguilar. The person was holding a knife and cursing the Chief of Police. Suddenly the person raised his right hand with the knife stating, "You can only get this from me, Aguilar, when I am already dead." Then the person and Aguilar pursued one another around the table, the person with a knife as the pursuer. He saw the person pushed aside Aguilar and stabbed him but Aguilar was not hit. Thereupon Aguilar ran towards the outside of the building. The person followed Aguilar. At this juncture Pat. Fidel de la Cruz arrived. De la Cruz asked Mallari what happened. As De la Cruz and Mallari were conversing, Mallari heard a shot fired outside the building. Thereupon, De la Cruz grabbed Mallari's gun and rushed outside the building. Mallari also ran outside of the building. He saw the person, whom he later recognized as Pariseo Tayag, running away. He heard other shots, not less than five of them. He was short distance from the main door of the municipal building and he saw a commotion of the people. Fidel de la Cruz returned Mallari's gun after the shooting and when they were already inside the building. Thereafter Sgt. Romualdo Espiritu of the P.C. arrived. Sgt. Espiritu got Mallari's gun from De la Cruz, smelled it, then handed it back to De la Cruz, saying: "It was not fired".

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Another defense witness, Corazon Cruz, a waitress, testified that the deceased together with some companions had drunk beer inside Freddie's Restaurant before the shooting incident. After her testimony, the defense without presenting the other accused on the witness stand, offered its evidence and submitted the case for decision. Accused-appellants, in their respective Briefs, assigned the following errors: 1) By IZON and JOSON: I THE LOWER COURT ERRED IN HOLDING THE APPELLANTS CONRADO IZON AND ERNESTO JOSON GUILTY OF THE CRIME CHARGED IN THE INFORMATION PENALIZED UNDER ARTICLE 248 OF THE REVISED PENAL CODE. II THE LOWER COURT LIKEWISE ERRED IN FINDING THE APPELLANTS IZON AND JOSON AS CO. PRINCIPAL IN THE COMMISSION OF THE CRIME. 2) By BUENSUCESO: I THE LOWER COURT ERRED IN GIVING UNDUE CREDENCE TO THE NECROPSY REPORT EXHIBIT L) OF DR. CEFERINO CUNANAN AND THE BALLISTICS REPORT (EXHIBIT V) OF THE BALLISTICIAN FILEMON MAMARIL, AS WELL AS THEIR TESTIMONIES AND IN RELYING THEREON OR MAKING THE SAME AS ITS BASIS FOR CONCLUDING THAT THE SLUG (EXHIBIT W) WHICH WAS ALLEGEDLY RECOVERED FROM THE KNEE OF THE ALLEGED VICTIM WAS FIRED FROM THE REVOLVER (EXHIBIT C) OF THE APPELLANT JOSE BUENSUCESO. II THE TRIAL COURT ERRED IN RULING THAT THE TWO FATAL WOUNDS WHICH CAUSED THE INSTANTANEOUS DEATH OF THE ALLEGED VICTIM WERE INFLICTED BY BULLETS FIRED FROM THE GUNS OF THE APPELLANTS JOSE BUENSUCESO, RODOLFO AGUILAR, CONRADO IZON and ERNESTO JOSON. III THE COURT BELOW ERRED IN CONVICTING THE APPELLANT JOSE BUENSUCESO FOR MURDER NOTWITHSTANDING ITS OWN FINDING THAT THERE WAS NO CONSPIRACY ESTABLISHED BY THE PROSECUTION, ASIDE FROM THE FACT THAT THERE WAS ABSOLUTELY NO EVIDENCE ON RECORD TO SHOW THAT HE ACTUALLY PARTICIPATED IN THE KILLING OF THE VICTIM.

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3) By AGUILAR: I THE LOWER COURT ERRED IN HOLDING THAT THERE WAS TREACHERY, MORE SPECIFICALLY ON THE PART OF DEFENDANT AGUILAR THAT WOULD QUALIFY THE CRIME TO MURDER. II THE LOWER COURT ERRED IN HOLDING THAT THE ACCUSED AGUILAR THOUGH ACTING INDEPENDENTLY SHOULD BE LIKEWISE HELD LIABLE AS THE REST OF THE ACCUSED FOR THE DEATH OF THE VICTIM. III THE LOWER COURT ERRED IN NOT HOLDING THAT DEFENDANT WAS MERELY ACTING IN LEGITIMATE SELF-DEFENSE WHEN HE INFLICTED THE WOUND ON THE VICTIM. The assigned errors find no support from the evidence on record. Firstly, all four appellants were seen by Apolonio Salvador, one of the prosecution eyewitnesses, to have been present at the crime scene at the nine of the incident, armed with .38 caliber service revolvers. 5 Secondly, the autopsy conducted on the body of the victim showed that he died as a result of four (4) gunshot wounds, 6 two of which were fatal. 7 The examining physician testified that the wounds were inflicted by .38 cal. revolvers and that a deformed bullet, also .38 cal., which caused wound No. 4, was recovered (Exhibit "W" ). Thirdly, upon an on-the-spot inspection by PC Sgt. Romualdo Espiritu soon after the incident, he found that the service pistol of AGUILAR had been fired and that its cylinder contained three (3) empty shells and three (3) live ammunitions. Similarly, he smelled the barrel of BUENSUCESO's revolver and found that it, too, had been fired and that its cylinder had four (4) empty shells, and two live ammunitions. 8 Fourthly, ballistic examination disclosed that the deformed jacketed bullet recovered from the knee of the victim was fired from a .38 cal. Smith & Wesson revolver, with Serial No. K-617092, (Exhibit "C") issued to BUENSUCESO; that the four (4) empty shells (Exhibits "Y", "Y-1", "Y-2", and "Y-3") were fired also from BUENSUCESO's firearm; while the three (3) other empty shells (Exhibits "Y-4", "Y-5", and "Y-6") were fired from AGUILAR's Smith & Wesson revolver, cal. 38, with Serial No. C-73130 (Exhibit "D"). 9 Fifth, the Chemistry Reports on the paraffin tests showed the following results, particularly in respect of IZON and JOSON:

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Chemistry Report No. G-67-204 Conrado Izon Left Hand Positive Right Hand Negative Chemistry Report No. G-67-203 Fidel de la Cruz Negative Results. Chemistry Report No. G-67-202 Ernesto Joson Left Hand Positive Right Hand Negative Chemistry Report No. G-67-200 Eduardo Mallari Negative Results. 10 (Emphasis ours) The positive finding, insofar as IZON and JOSON are concerned, confirm prosecution witness Apolonio Salvador's declaration that they were in the vicinity of the crime at the time of its occurrence. Although they had their guns in their holsters when Salvador saw them the fact remains that, upon examination, their left hands were positive for nitrates. AGUILAR's plea of self-defense is evidently unmeritorious. AGUILAR followed the victim right after the latter hurriedly left the office of the Chief of Police. Once outside the building, AGUILAR fired his gun upward. And when the victim turned around and retreated backwards, AGUILAR fired upon him hitting him above the right knee. If, as contended, the victim had thrust his knife at AGUILAR inside the Municipal Building malting the former the unlawful aggressor, to be sure, the incident would have happened there and then and not some 60 meters away from the building. We discredit AGUILAR's testimony that it was the victim who had pursued him rather than the other way around. BUENSUCESO's contention that there is serious doubt that the body autopsied was that of the victim hardly deserves even passing consideration. All told, there is ample evidence establishing that AGUILAR, BUENSUCESO, IZON, and JOSON had fired their guns at the victim hitting him on different parts of his body. True, it has not been established as to which wound was inflicted by each accused. However, as this Court has held, where the victim died as a result of wounds received from several persons acting independently of each other, but it has not been shown which wound was inflicted by each assailant, all of the assailants are liable for the death of the victim. 11 The crime is Murder, qualified by treachery. The victim was already retreating backwards until he reached the fence of the town plaza when AGUILAR fired his revolver at the former hitting
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him above the right knee. 12Notwithstanding that he was already hit and wounded, and possibly immobilized, he was still subjected to successive shots as shown by the wounds that he had received, even at his back. Certainly, the means employed by the accused-appellants tended directly and specially to insure the execution of the crime without risk to themselves arising from any defense which the victim might have made. 13 The killing of the victim was aggravated by abuse of superior strength as shown by the number of assailants, which circumstance, however, is absorbed by treachery. 14 No other circumstances modify the commission of the crime. WHEREFORE, the judgment appealed from is hereby AFFIRMED, except that the indemnity to the victim's heirs is hereby increased to P30,000.00. 15 With proportionate costs. SO ORDERED.

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Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. L-100204 March 28, 1994 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. AURELIO CABALHIN y DACLITAN, accused-appellant. PADILLA, J.: Accused Aurelio D. Cabalhin y Daclitan appeals from the decision * of the Regional Trial Court of Antipolo, Rizal, Branch 73, dated 27 March 1991, finding him guilty of three(3) offenses, namely: frustrated homicide, homicide, and parricide and sentencing him to suffer imprisonment of six (6) months of arresto mayor as minimum to three (3) years of prision correccional as maximum in Criminal Case No. 3081(for frustrated homicide) imprisonment of four (4) years, two (2) moths and one (1) day of prision correccional minimum to eight (8) years and one (1) day ofprision mayor as maximum in Criminal Case No. 3082 (for homicide); and reclusion perpetua in Criminal Case No. 3094 (for parricide). The records show that at about 3:30 in the afternoon of 22 February 1987, in Sitio Burol, Barangay San Juan, Taytay, Rizal, the appellant stabbed, with the use of a 13-inch dagger, three (3) persons, namely, Marianita Atison (appellant's wife), Flaviana and Rolito, both surnamed Saldivia (mother and son). Three (3) separate informations were filed against accused-appellant, docketed as Criminal Case No. 3081, dated 25 May 1987, for: frustrated murder; and Criminal Case No. 3082, dated 26 May 1987, for: murder; and Criminal Case No. 3094, dated 25 May 1987, for: parricide, which informations read as follows: Crim. Case No. 3081 That on or about the 22nd day of February 1987, in the municipality of Taytay, province of Rizal, a place within the jurisdiction of this Honorable Court, the above-named accused, armed with a deadly weapon (dagger), with intent to kill, evident premeditation and treachery, did then and there willfully, unlawfully and feloniously attack, assault and stab with the said deadly weapon one Flaviana Lacambra-Saldivia on the right lower portion of the breast, . . . thus performing all the acts of execution which would have produced the crime of murder, as a consequence, but nevertheless did not produce it by reason of cause or causes independent of his will, that is, due to the timely and able medical assistance rendered to said Flaviana Lacambra-Saldivia which prevented her death. CONTRARY TO LAW

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Crim. Case No. 3082 That on or about the 22nd day of February 1987, in the Municipality of Taytay, Province of Rizal, Philippines and within jurisdiction of this Honorable Court, the above-named accused, armed with a dagger, with intent to kill, and by means of treachery and evident premeditation, did then and there wilfully, unlawfully and feloniously attack, assault and stab with the said dagger on Rolito Saldivia y Lacambra on the vital parts of his body, thereby inflicting upon the latter mortal stab wounds which directly caused his death. CONTRARY TO LAW. Crim. Case No. 3094 That on or about the 22nd day of February 1987, in the municipality of Taytay, province of Rizal, a place within the jurisdiction of this Honorable Court, the above-named accused, with evident premeditation to kill his wife with whom he was united in lawful wedlock, entered the house at Sitio Burol, Brgy. San Juan, Taytay, Rizal, where she was then living separately, and said accused armed with a bladed weapon suddenly and without warning and employing means which tended to ensure its commission without danger to himself, did then and there willfully unlawfully and feloniously, stab his wife, Marianita Atison, repeatedly, as a result of which the said Marianita Atison met her instantaneous death. CONTRARY TO LAW. 1 Criminal Case No. 3081 was originally assigned to the Regional Trial Court of Antipolo, Rizal Branch 73, while Criminal Case Nos. 3082 and 3094 were assigned to Branch 74 of the same court. The latter two (2) cases were consolidated later with Criminal Case No. 3081, all three (3) cases having arisen from the same incident. When arraigned, appellant pleaded not guilty to the offenses charged. The three (3) cases were set for trial. The evidence for the prosecution consisted of the testimonies of two (2) alleged eyewitnesses to the commission of the crimes, namely: Robin Saldivia (brother of deceased victim Rolito Saldivia) and Igmidio Ducay. A third witness was Romulo del Monte (a barangay tanod in Barangay San Juan). The testimony of Robin Saldivia is as follows: . . . on February 22, 1987 at around 3:30 in the afternoon, he (Robin Saldivia) was in their house in Sitio Burol, Taytay, Rizal. He was lying down with his brother Rolito Saldivia who was sleeping on the floor. Their house had two bedrooms separated by a sala. On the other bedroom, Marianita Atison or "Ka Nita" and his mother Flaviana Lacambra Saldivia were talking while on the bed. All of a sudden, somebody forcibly entered their house and so he got up and peeped behind the curtain. He saw the accused drew a double-bladed instrument measuring about thirteen inches long from his right side. Sensing danger, Robin Saldivia hid under their house the floor of which was about 4 1/2 feet from the ground. While hiding under the house, he could see the movement of the feet of the accused between the wooden slabs of the floor. Thru these spaces, he saw the accused stabbed Marianita Atison or "Ka Nita," his
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TITLE VIII: CRIMES AGAINST PERSONS

mother Flaviana Lacambra Saldivia and his brother Rolito or "Lito" Saldivia and blood even dripped on him. After stabbing these three persons, the accused ran away. As a result of this stabbing incident, Flaviana Saldivia sustained two stab wounds on the breast while Marianita Atison and Rolito Saldivia died on the same day. 2 Igmidio Ducay testified as follows: . . . on February 22, 1987 at around 3:30 P.M., he (Igmidio Ducay) was infront of the house of Wenceslao Saldivia in Sitio Burol, Barangay San Juan, Taytay, Rizal. He was playing "dama" with his friend Alberto Espino when a person carrying a bladed instrument passed by. The bladed weapon or instrument has a length of 12 to 13 inches. This person suddenly entered the house of Wenceslao Saldivia by kicking the door which was closed. Igmidio Ducay stood up and peeped through inside the house. He saw the man suddenly stabbed Marianita Atison Cabalhin, an acquaintance. After that, the man went down from the bedroom and suddenly stabbed Lito who was sleeping face down (nakataob) on top of a table just below the bedroom were Marianita Cabalhin was stabbed. He also saw the man kicked and stabbed "Manang" or Flaviana Saldivia, wife of Wenceslao Saldivia. Igmidio Ducay stated that he was about 4-5 meters away from the door where he was peeping when Marianita Cabalhin, Rolito Saldivia and Flaviana Saldivia were stabbed by the man whom he identified as the accused Aurelio Cabalhin. The door was open and everything that was happening inside the house could be seen outside because there was no room or partition. He saw the accused climbed the bed or "papag" where Marianita Cabalhin and Flaviana Saldivia were sitting side by side and the accused stabbed them while standing on the "papag." After stabbing Marianita and Flaviana, the accused went down and proceeded to Rolito Saldivia, who was sleeping on top of the table on the right side of the house and stabbed him also. After Flaviana Saldivia was stabbed, Igmidio Ducay left the place and asked for help. 3 Romulo del Monte, on the other hand, testified as follows: 1. That in that afternoon of 22 February 1987 after being informed about the stabbing incident in the house of the Saldivias, he went to said house and saw Nita Cabalhin and Lito Saldivia sprawled on the bed in one room of the house Nita Cabalhin was fully dressed while Lito Saldivia was wearing khaki pants but naked up (without T-shirt); he did not see Wenceslao Saldivia (father of Lito Saldivia) in the house and did not bother to ask who the author of the crime was. 2. Between 3:30 and 4:00 p.m. of that same day, he saw the accused Aurelio Cabalhin coming out from an alley where the house of the Saldivias was located. The accused had a white shoulder bag on his left shoulder, his right hand was inside the bag and his pants were bloodied. Nobody told him that said person was Aurelio Cabalhin but he was pointed to as the one who stabbed the victims. When Romulo del Monte saw the accused coming out from an alley, he even greeted him "O brod, anong nangyari sa iyo at ganyan ka?" but the accused did not answer and he just continued walking. The next time that he saw the accused was in court. (Romulo del Monte gave a sworn statement dated 23 February 1987 in connection with this case). 4

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Appellant admitted having stabbed Marianita Atison, Rolito Saldivia and Flaviana Saldivia, resulting in the death of the first two victims (Marianita and Rolito), and in stab wounds on the breast of the third victim (Flaviana). However, he declared that the stabbing incident occured as he caught his wife Marianita and Rolito naked in bed and actually engaged in sexual intercourse. The evidence for the defense consists of the testimony of the sole defense witness, appellant himself. His testimony is as follows: . . . He and Marianita Atison Cabalhin are husband and wife having been married on November 23, 1972 in Calubian, Leyte (Exhibit "1"). After their marriage, they stayed in the house of his in-laws in Guinduhaan, Wague, Leyte for more or less one year. After that, they transferred to their own house in Wague, Leyte and stayed there for more or less fifteen years. In 1985, they went to Manila where they worked as caretaker of the house of Edgardo Co in Filinvest Subdivision for about seven months. They left the employment of Edgardo Co . . . They transferred to Sucat, Paraaque where he worked as laborer in a construction and his wife Marianita Atison Cabalhin worked as housemaid. xxx xxx xxx After working as housemaid in New Alabang Village for more or less five months, Marianita Atison Cabalhin transferred to Meralco Village, Taytay, Rizal where she also worked as housemaid of Lola Waway. At that time, Aurelio Cabalhin was working with Apex in San Pedro, Mandaluyong, Metro Manila and residing in Mangga Site, Sucat, Paraaque. His wife Marianita Cabalhin who was working in Meralco Village, Taytay, Rizal was going home to or staying with her sister Elevita Atison Dagame in Sitio Burol, Barangay San Juan, Taytay, Rizal after her work. They agreed that they would see each other every Sunday at Mangga Site, Sucat, Paraaque. Aurelio Cabalhin had gone thrice to the house of his sister-in-law where his wife was staying. On December 14, 1986, Aurelio Cabalhin went to Sitio Burol, Barangay San Juan, Taytay, Rizal to find out the condition of his wife in the house of Lola Waway. He saw his wife and she told him that her work was fine and she was in good condition. He saw also his sister-in-law Elevita Dagame on that occasion. On February 14, 1987, Elevita Dagame went to Sucat, Paraaque and asked the accused Aurelio Cabalhin about his wife. Eleveta told him that his wife was no longer working in the house of Lola Waway and she was not going home to their house anymore. On February 17, 1987, the accused went to Meralco Village, Taytay, Rizal and verified from Lola Waway if what Elevita Dagame told him was true. Lola Waway told the accused that his wife was not working with her anymore since January 30. Upon learning that, Aurelio Cabalhin asked the help of Elevita Dagame to gather information regarding the whereabouts of his wife and went back to Sucat, Paraaque. On February 22, 1987, Aurelio Cabalhin returned to the house of Elevita Dagame in Sitio Burol, Barangay San Juan, Taytay, Rizal, to get some informations about his wife. When he arrived there at around 12:00 P.M., the only person in the house was Jun Dagame who is the brother of Reynaldo Dagame, husband of Elevita. According to Jun Dagame, Elevita went to Pasay. The accused talked with Jun Dagame and their conversation lasted for about two hours.

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Jun Dagame who was 14 years old, told the accused that his wife Marianita was in the house of Wenceslao Saldivia and had a paramour. He wanted to know if what he was told about his wife was true and so he went to the house of Wenceslao Saldivia which was pointed to him by Jun Dagame who stayed at a distance of about 20 meters away from said house. He went near the door of the house of Wenceslao Saldivia and saw Flaviana Saldivia. He asked her where his wife was and she answered that Marianita Cabalhin was not there. The accused noticed that Flaviana Saldivia became pale and trembled when he asked her about his wife and so he entered the house and Flaviana Saldivia was behind him. He saw a room with curtain and when he parted the curtain (hinawi ko po ang kurtina) he saw his wife lying with a man on the bed. His wife was lying on her back with her legs apart while the man was on top of her with his buttocks between the parted legs of his wife. The man and his wife were engaged in sexual act. He boxed the legs of the man and when he rolled over to the wall, he saw that his wife and the man were naked. Because of anger, he lost control of himself. He saw a knife near the pillow and stabbed the testicles of the man. His wife tried to stop him and he stabbed her also. After that, he stabbed the man and his wife again and again. The accused testified that at the time he was stabbing these two persons, he was already out of his mind because of anger. He could not recall how many times he stabbed them but he was sure that all the stab wounds were on the front portion of their bodies. He did not know what happened to Flaviana Saldivia but on cross-examination, the accused declared that when he stabbed the testicles of the man who he came to know as Lito Saldivia, somebody behind him grabbed his shirt and he also stabbed that person but he does not know if it was Flaviana Saldivia. After realizing that he had taken the law into his hands, the accused left bringing the knife with him and walked towards the highway. His pants were full of blood and he boarded a passenger jeep going to Crossing-JRC. He alighted at Crossing Mandaluyong and went to the outpost where there was a policeman. He told the police that he was a criminal and he was brought to Capt. Sebastian Davan at the Mandaluyong police headquarters. The accused told Capt. Davan that he killed his wife and paramour. That evening, Capt. Davan brought him to Taytay Police Station and he was incarcerated. . . . 5 On 27 March 1991, the trial court rendered judgment finding appellant guilty of the crimes of frustrated homicide (as to Flaviana), homicide (as to Rolito) and parricide (as to Marianita), the dispositive part of which reads as follows: WHEREFORE, finding the accused Aurelio Cabalhin y Daclitan guilty beyond reasonable doubt of the crimes of frustrated homicide in Crim. Case No. 3081, homicide in Crim. Case No. 3082 and parricide in Crim. Case No. 3094, the Court hereby sentences him to suffer imprisonment of 6 months of arresto mayor as minimum to 3 years of prision correccional as maximum in Crim. Case No. 3081; imprisonment of 4 years 2 months and 1 day of prision correccional as minimum to 8 years and 1 day of prision mayor as maximum in Crim. Case No. 3082 and reclusion perpetua in Crim. Case No. 3094. The accused shall be credited with the preventive imprisonment he has undergone pursuant to Art. 29 of the Revised Penal Code as amended by Republic Act No. 6127. 6 In this appeal, appellant contends: (1) that he killed his wife Marianita and Rolito Saldivia under the exceptional circumstances provided under Article 247 of the Revised Penal Code which reads:

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Art. 247. Death or physical injuries inflicted under exceptional circumstances. Any legally married person who, having surprised his spouse in the act of committing sexual intercourse with another person, shall kill any of them or both of them in the act or immediately thereafter, or shall inflict upon them any serious physical injury, shall suffer the penalty of destierro. If he shall inflict upon them physical injuries of any kind, he shall be exempt from punishment. and (2) that the crime he committed against the person of the other victim, Flaviana LacambraSaldivia was only serious physical injuries, not frustrated homicide. We find no merit in the appeal. As to the issue on the applicability of Article 247 of the Revised Penal Code to the case at bench, the principal question is whether or not appellant killed his wife Marianita and Rolito as he caught them in the act of committing the sexual act, or immediately thereafter. The appellant contends that in that fateful afternoon of 22 February 1987, he entered a room in the house of the Saldivia family and saw that his wife was "lying on her back with her legs apart while the man was on top of her with his buttocks between the parted legs of his wife." Both the prosecution and defense witnesses gave different versions as to the actual location, position and condition of Marianita and Rolito at the time appellant saw them in short, whether they were engaged in the sexual act when allegedly caught by the appellant in the afternoon of 22 February 1987. It is noted that the trial court gave great weight to the testimony of the prosecution witness, Romulo del Monte (the barangay tanod) whom the trial court believed to be an unbiased witness, and who testified that when he saw Marianita and Rolito on that fateful afternoon of 22 February 1987, Marianita was fully dressed while Rolito was wearing Khaki pants without T-shirt or naked up. The trial court said: The claim of the accused that he saw his wife lying on her back with her legs apart while Rolito Saldivia was on top of her with his buttocks between her parted legs is hard to believe if not unworthy of belief in view of his testimony that the two were covered with blanket from their shoulders down to their feet when he first saw them (pp. 26-27, t.s.n., 3/21/90). Considering that Marianita Cabalhin and Rolito Saldivia were covered with blanket from shoulders to feet, it is impossible for the accused to see their exact position which he described in detail and what they were doing. The testimony of the accused that his wife and Rolito Saldivia were both naked while engaged in the carnal act was belied by Barangay Tanod Romulo del Monte who went to the scene of the crime minutes after the stabbing incident. Romulo del Monte, an unbiased witness, declared that when he saw Nita Cabalhin and Lito Saldivia bloodied and sprawled on the bed in one room of the house, Nita Cabalhin was fully dressed while Lito Saldivia was wearing Khaki pants without T-shirt or naked up (pp. 20-21, t.s.n., 6/7/88). It should be remembered that when this stabbing incident happened, the only persons in the house of Wenceslao Saldivia were Robin Saldivia, Rolito Saldivia, Flaviana Saldivia and Marianita Atison Cabalhin; Wenceslao Saldivia was not at home as he was drinking and eating in the house of his friend (pp. 3-4, t.s.n., 2/17/88): Robin Saldivia who was 13 years old, left their house after the victims were stabbed to call and inform his father about the incident; Marianita Atison Cabalhin died as a result of the stab wounds inflicted upon her; Rolito Saldivia who was seriously wounded was then fighting for life as he died also on the same day
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while Flaviana Saldivia was also wounded on her breast and in serious condition. It is therefore, highly inconceivable and improbable that the victims Rolito Saldivia and Marianita Cabalhin could still put in their clothes if indeed they were naked. 7 It is settled rule that the findings of fact of trial courts are given great on appeal because they are in a better position to examine the real evidence, and observe the demeanor of the witnesses, and can therefore discern if they are telling the truth or not. 8 We therefore find no reversible error committed by the trial court in appreciating the testimony of Romulo del Monte. Hence, as to the factual issue of whether Marianita and Rolito were engaged in sexual intercourse when allegedly caught by appellant, we will respect the factual finding made by the trial court as the same is supported by the evidence on record. Under Article 247 of the Revised Penal Code, the killing of the wife by the husband (or vice-versa) is justified if the husband kills her while engaged in sexual intercourse with another man or immediately thereafter. As to the strict application of Article 247, People vs. Wagas 9 teaches that: . . . The vindication of a Man's honor is justified because of the scandal an unfaithful wife creates; the law is strict on this, authorizing as it does a man to chastise her, even with death. But killing the errant spouse as a purification is so serve as that it can only be justified when the unfaithful spouse is caught in flagrante delicto; and it must be resorted to only with great caution so much so that the law requires that it be inflicted only during the sexual intercourse or immediately thereafter. Clearly in the present case, appellant failed to prove that he killed Marianita and Rolito while in the act of sexual intercourse or immediately thereafter. Therefore, appellant can not invoke Article 247 to be exempt from criminal liability. He is guilty of parricide under Article 246 of the Code, which provides that any person who shall kill his or her spouse shall be punished by the penalty of reclusion perpetua to death. As to the second argument, appellant contends that he is guilty only of serious physical injuries, not frustrated homicide as he had then no intent to kill the victim, Flaviana. In applying Article 249 10 of the Revised Penal Code, the essential element of intent to kill the victim must be clearly established in order to convict one of the crime of homicide. The trial court ruled that there was intent to kill on the part of the appellant, considering "the number and location of the stab wounds inflicted upon the victim (Flaviana) two stab wounds on the lower right breast, and the weapon used by the accused which was a double bladed dagger measuring about 13 inches including the handle." Taking into consideration the number and location of the stab wounds sustained by Flaviana, this Court believes, as aptly observed by the trial court, that there was intent to kill when appellant attacked and wounded Flaviana. We, therefore uphold the ruling of the trial court finding appellant guilty of frustrated homicide in having attacked Flaviana. The trial court ruled that the appellant was entitled to two (2) mitigating circumstances; the first, for having acted upon an impulse so powerful as naturally to have produced passion or

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obsfuscation (as provided for in Article 13, paragraph no. 6, of the Revised Penal Code) and, the second, for voluntary surrender (Article 13, paragraph no. 7 of the same Code). The records show that on 22 February 1987 appellant went to the house of the Saldivia family after being informed that he would find there his wife (Marianita) together with her alleged paramour, Rolito Saldivia. The stabbing incident happened, according to the trial court, because appellant acted upon an impulse so powerful as naturally to have produced passion or obsfuscation. The evidence further discloses that after appellant stabbed the three (3) victims, he voluntarily went to the Taytay Police Station on that same night of 22 February 1987 and surrendered to Police Captain Davan. We uphold the ruling of the trial court in appreciating the two (2) mitigating circumstances above-cited. WHEREFORE, the decision of the Regional Trial Court of Criminal Cases Nos. 3081, 3082, and 3094 is hereby AFFIRMED in toto. SO ORDERED.

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Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. Nos. 108280-83 November 16, 1995 ROMEO SISON, NILO PACADAR, JOEL TAN, RICHARD DE LOS SANTOS, and JOSELITO TAMAYO,petitioners, vs. PEOPLE OF THE PHILIPPINES and COURT OF APPEALS, respondents. G.R. Nos. 114931-33 November 16, 1995 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ANNIE FERRER, accused, ROMEO SISON, NILO PACADAR, JOEL TAN, RICHARD DE LOS SANTOS, and JOSELITO TAMAYO, accused-appellants. PUNO, J.: The case before us occurred at a time of great political polarization in the aftermath of the 1986 EDSA Revolution. This was the time when the newly-installed government of President Corazon C. Aquino was being openly challenged in rallies, demonstrations and other public fora by "Marcos loyalists," supporters of deposed President Ferdinand E. Marcos. Tension and animosity between the two (2) groups sometimes broke into violence. On July 27, 1986, it resulted in the murder of Stephen Salcedo, a known "Coryista." From August to October 1986, several informations were filed in court against eleven persons identified as Marcos loyalists charging them with the murder of Salcedo. Criminal Case No. 8647322 was filed against Raul Billosos y de Leon and Gerry Nery y Babazon; Criminal Case No. 8647617 against Romeo Sison y Mejia, Nilo Pacadar y Abe and Joel Tan y Mostero; Criminal Case No. 86-47790 against Richard de los Santos y Arambulo; Criminal Case No. 86-48538 against Joselito Tamayo y Ortia; and Criminal Case No. 86-48931 against Rolando Fernandez y Mandapat. Also filed were Criminal Cases Nos. 86-49007 and 86-49008 against Oliver Lozano and Benjamin Nuega as well as Annie Ferrer charging them as accomplices to the murder of Salcedo. The cases were consolidated and raffled to the Regional Trial Court, Branch XLIX, Manila. All of the accused pleaded not guilty to the charge and trial ensued accordingly. The prosecution presented twelve witnesses, including two eyewitnesses, Ranulfo Sumilang and Renato Banculo, and the police officers who were at the Luneta at the time of the incident. In support of their testimonies, the prosecution likewise presented documentary evidence consisting of newspaper accounts of the incident and various photographs taken during the mauling. The prosecution established that on July 27, 1986, a rally was scheduled to be held at the Luneta by the Marcos loyalists. Earlier, they applied for a permit to hold the rally but their application
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was denied by the authorities. Despite this setback, three thousand of them gathered at the Rizal Monument of the Luneta at 2:30 in the afternoon of the scheduled day. Led by Oliver Lozano and Benjamin Nuega, both members of the Integrated Bar of the Philippines, the loyalists started an impromptu singing contest, recited prayers and delivered speeches in between. Colonel Edgar Dula Torres, then Deputy Superintendent of the Western Police District, arrived and asked the leaders for their permit. No permit could be produced. Colonel Dula Torres thereupon gave them ten minutes to disperse. The loyalist leaders asked for thirty minutes but this was refused. Atty. Lozano turned towards his group and said "Gulpihin ninyo ang lahat ng mga Cory infiltrators." Atty. Nuega added "Sige, sige gulpihin ninyo!" The police then pushed the crowd, and used tear gas and truncheons to disperse them. The loyalists scampered away but some of them fought back and threw stones at the police. Eventually, the crowd fled towards Maria Orosa Street and the situation later stabilized. 1 At about 4:00 p.m., a small group of loyalists converged at the Chinese Garden, Phase III of the Luneta. There, they saw Annie Ferrer, a popular movie starlet and supporter of President Marcos, jogging around the fountain. They approached her and informed her of their dispersal and Annie Ferrer angrily ordered them "Gulpihin ninyo and mga Cory hecklers!" Then she continued jogging around the fountain chanting "Marcos pa rin, Marcos pa rin, Pabalikin si Marcos, Pabalikin si Marcos, Bugbugin ang mga nakadilaw!" The loyalists replied "Bugbugin!" A few minutes later, Annie Ferrer was arrested by the police. Somebody then shouted "Kailangang gumanti, tayo ngayon!" A commotion ensued and Renato Banculo, a cigarette vendor, saw the loyalists attacking persons in yellow, the color of the "Coryistas." Renato took off his yellow shirt. 2 He then saw a man wearing a yellow t-shirt being chased by a group of persons shouting "Iyan, habulin iyan. Cory iyan!" The man in the yellow t-shirt was Salcedo and his pursuers appeared to be Marcos loyalists. They caught Salcedo and boxed and kicked and mauled him. Salcedo tried to extricate himself from the group but they again pounced on him and pummelled him with fist blows and kicks hitting him on various parts of his body. Banculo saw Ranulfo Sumilang, an electrician at the Luneta, rush to Salcedo's aid. Sumilang tried to pacify the maulers so he could extricate Salcedo from them. But the maulers pursued Salcedo unrelentingly, boxing him with stones in their fists. Somebody gave Sumilang a loyalist tag which Sumilang showed to Salcedo's attackers. They backed off for a while and Sumilang was able to tow Salcedo away from them. But accused Raul Billosos emerged from behind Sumilang as another man boxed Salcedo on the head. Accused Richard de los Santos also boxed Salcedo twice on the head and kicked him even as he was already fallen. 3 Salcedo tried to stand but accused Joel Tan boxed him on the left side of his head and ear. 4 Accused Nilo Pacadar punched Salcedo on his nape, shouting: "Iyan, Cory Iyan. Patayin!" 5 Sumilang tried to pacify Pacadar but the latter lunged at the victim again. Accused Joselito Tamayo boxed Salcedo on the left jaw and kicked him as he once more fell. Banculo saw accused Romeo Sison trip Salcedo and kick him on the head, and when he tried to stand, Sison repeatedly boxed him. 6 Sumilang saw accused Gerry Neri approach the victim but did not notice what he did. 7 Salcedo somehow managed to get away from his attackers and wipe off the blood from his face. He sat on some cement steps 8 and then tried to flee towards Roxas boulevard to the sanctuary of the Rizal Monument but accused Joel Tan and Nilo Pacadar pursued him, mauling Sumilang in the process. Salcedo pleaded for his life exclaiming "Maawa na kayo sa akin. Tulungan ninyo ako." He cried: "Pulis, pulis. Wala bang pulis?" 9

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The mauling resumed at the Rizal Monument and continued along Roxas Boulevard until Salcedo collapsed and lost consciousness. Sumilang flagged down a van and with the help of a traffic officer, brought Salcedo to the Medical Center Manila but he was refused admission. So they took him to the Philippine General Hospital where he died upon arrival. Salcedo died of "hemorrhage, intracranial traumatic." He sustained various contusions, abrasions, lacerated wounds and skull fractures as revealed in the following post-mortem findings: Cyanosis, lips, and nailbeds. Contused-abrasions: 6.0 x 2.5 cm., and 3.0 x 2.4 cm., frontal region, right side; 6.8 x 4.2 cm., frontal region, left side; 5.0 x 4.0 cm., right cheek; 5.0 x 3.5 cm., face, left side; 3.5 x 2.0 cm., nose; 4.0 x 2.1 cm., left ear, pinna; 5.0 x 4.0 cm. left suprascapular region; 6.0 x 2.8 cm., right elbow. Abrasions: 4.0 x 2.0 cm., left elbow; 2.0 x 1.5 cm., right knee. Lacerated wounds: 2.2 cm., over the left eyebrow; 1.0 cm., upper lip. Hematoma, scalp; frontal region, both sides; left parietal region; right temporal region; occipital region, right side. Fractures, skull; occipital bone, right side; right posterior cranial fossa; right anterior cranial fossa. Hemorrhage, subdural, extensive. Other visceral organs, congested. Stomach, about 1/2 filled with grayish brown food materials and fluid. 10 The mauling of Salcedo was witnessed by bystanders and several press people, both local and foreign. The press took pictures and a video of the event which became front-page news the following day, capturing national and international attention. This prompted President Aquino to order the Capital Regional Command and the Western Police District to investigate the incident. A reward of ten thousand pesos (P10,000.00) was put up by Brigadier General Alfredo Lim, then Police Chief, for persons who could give information leading to the arrest of the killers. 11 Several persons, including Ranulfo Sumilang and Renato Banculo, cooperated with the police, and on the basis of their identification, several persons, including the accused, were apprehended and investigated. For their defense, the principal accused denied their participation in the mauling of the victim and offered their respective alibis. Accused Joselito Tamayo testified that he was not in any of the photographs presented by the prosecution 12 because on July 27, 1986, he was in his house in Quezon City. 13 Gerry Neri claimed that he was at the Luneta Theater at the time of the incident. 14 Romeo Sison, a commercial photographer, was allegedly at his office near the Luneta waiting for some pictures to be developed at that time. 15 He claimed to be afflicted with hernia impairing his mobility; he cannot run normally nor do things forcefully. 16 Richard de los Santos
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admits he was at the Luneta at the time of the mauling but denies hitting Salcedo. 17 He said that he merely watched the mauling which explains why his face appeared in some of the photographs. 18 Unlike the other accused, Nilo Pacadar admits that he is a Marcos loyalist and a member of the Ako'y Pilipino Movement and that he attended the rally on that fateful day. According to him, he saw Salcedo being mauled and like Richard de los Santos, merely viewed the incident. 19 His face was in the pictures because he shouted to the maulers to stop hitting Salcedo. 20 Joel Tan also testified that he tried to pacify the maulers because he pitied Salcedo. The maulers however ignored him. 21 The other accused, specifically Attys. Lozano and Nuega and Annie Ferrer opted not to testify in their defense. On December 16, 1988, the trial court rendered a decision finding Romeo Sison, Nilo Pacadar, Joel Tan, Richard de los Santos and Joselito Tamayo guilty as principals in the crime of murder qualified by treachery and sentenced them to 14 years 10 months and 20 days of reclusion temporal as minimum to 20 years of reclusion temporal as maximum. Annie Ferrer was likewise convicted as an accomplice. The court, however, found that the prosecution failed to prove the guilt of the other accused and thus acquitted Raul Billosos, Gerry Nery, Rolando Fernandez, Oliver Lozano and Benjamin Nuega. The dispositive portion of the decision reads as follows: WHEREFORE, judgement is hereby rendered in the aforementioned cases as follows: 1. In "People versus Raul Billosos and Gerry Nery," Criminal Case No. 86-47322, the Court finds that the Prosecution failed to prove the guilt of the two (2) Accused beyond reasonable doubt for the crime charged and hereby acquits them of said charge; 2. In "People versus Romeo Sison, et al.," Criminal Case No. 86-47617, the Court finds the Accused Romeo Sison, Nilo Pacadar and Joel Tan, guilty beyond reasonable doubt, as principals for the crime of Murder, defined in Article 248 of the Revised Penal Code, and, there being no other mitigating or aggravating circumstances, hereby imposes on each of them an indeterminate penalty of from FOURTEEN (14)YEARS, TEN (10) MONTHS and TWENTY (20) DAYS, of Reclusion Temporal, as minimum, to TWENTY (20) DAYS, of Reclusion Temporal, as minimum, to TWENTY (20) YEARS ofReclusion Temporal, as Maximum; 3. In "People versus Richard de los Santos," Criminal Case No. 86-47790, the Court finds the Accused Richard de los Santos guilty beyond reasonable doubt as principal for the crime of Murder defined in Article 248 of the Revised Penal Code and, there being no other extenuating circumstances, the Court hereby imposes on him an indeterminate penalty of from FOURTEEN (14) YEARS, TEN (10) MONTHS and TWENTY (20) DAYS of Reclusion Temporal, as Minimum, to TWENTY (20) YEARS of Reclusion Temporal as Maximum; 4. In "People versus Joselito Tamayo," Criminal Case No. 86-48538 the Court finds the Accused guilty beyond reasonable doubt as principal, for the crime of "Murder" defined in Article 248 of the Revised Penal Code and hereby imposes on him an indeterminate penalty of from FOURTEEN (14) YEARS, TEN (10) MONTHS and TWENTY (20) DAYS of Reclusion Temporal, as Minimum, to TWENTY (20) YEARS of Reclusion Temporal, as Maximum;

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5. In "People versus Rolando Fernandez," Criminal Case No. 86-4893l, the Court finds that the Prosecution failed to prove the guilt of the Accused for the crime charged beyond reasonable doubt and hereby acquits him of said charge; 6. In "People versus Oliver Lozano, et al.," Criminal Case No. 86-49007, the Court finds that the Prosecution failed to prove the guilt of the Accused beyond reasonable doubt for the crime charged and hereby acquits them of said charge; 7. In "People versus Annie Ferrer," Criminal Case No. 86-49008, the Court finds the said Accused guilty beyond reasonable doubt, as accomplice to the crime of Murder under Article 18 in relation to Article 248 of the Revised Penal Code and hereby imposes on her an indeterminate penalty of NINE (9) YEARS and FOUR (4) MONTHS of Prision Mayor, as Minimum to TWELVE (12) YEARS, FIVE (5) MONTHS and ELEVEN (11) DAYS of Reclusion Temporal, as Maximum. The Accused Romeo Sison, Nilo Pacadar, Richard de los Santos, Joel Tan, Joselito Tamayo and Annie Ferrer are hereby ordered to pay, jointly and severally, to the heirs of Stephen Salcedo the total amount of P74,000.00 as actual damages and the amount of P30,000.00 as moral and exemplary damages, and one-half (1/2) of the costs of suit. The period during which the Accused Nilo Pacadar, Romeo Sison, Joel Tan, Richard de los Santos and Joselito Tamayo had been under detention during the pendency of these cases shall be credited to them provided that they agreed in writing to abide by and comply strictly with the rules and regulations of the City Jail. The Warden of the City Jail of Manila is hereby ordered to release the Accused Gerry Nery, Raul Billosos and Rolando Fernandez from the City Jail unless they are being detained for another cause or charge. The Petition for Bail of the Accused Rolando Fernandez has become moot and academic. The Petition for Bail of the Accused Joel Tan, Romeo Sison and Joselito Tamayo is denied for lack of merit. The bail bonds posted by the Accused Oliver Lozano and Benjamin Nuega are hereby cancelled. 22 On appeal, the Court of Appeals 23 on December 28, 1992, modified the decision of the trial court by acquitting Annie Ferrer but increasing the penalty of the rest of the accused, except for Joselito Tamayo, to reclusion perpetua. The appellate court found them guilty of murder qualified by abuse of superior strength, but convicted Joselito Tamayo of homicide because the information against him did not allege the said qualifying circumstance. The dispositive portion of the decision reads: PREMISES CONSIDERED, the decision appealed from is hereby MODIFIED as follows: 1. Accused-appellants Romeo Sison y Mejia, Nilo Pacadar y Abe, Joel Tan y Mostero and Richard de los Santos are hereby found GUILTY beyond reasonable doubt of Murder and are each hereby sentenced to suffer the penalty of Reclusion Perpetua;
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2. Accused-appellant Joselito Tamayo y Oria is hereby found GUILTY beyond reasonable doubt of the crime of Homicide with the generic aggravating circumstance of abuse of superior strength and, as a consequence, an indeterminate penalty of TWELVE (12) YEARS of prision mayor as Minimum to TWENTY (20) YEARS of reclusion temporal as Maximum is hereby imposed upon him; 3. Accused-appellant Annie Ferrer is hereby ACQUITTED of being an accomplice to the crime of Murder. CONSIDERING that the penalty of Reclusion Perpetua has been imposed in the instant consolidated cases, the said cases are now hereby certified to the Honorable Supreme Court for review. 24 Petitioners filed G.R. Nos. 108280-83 under Rule 45 of the Revised Rules of Court inasmuch as Joselito Tamayo was not sentenced to reclusion perpetua. G.R. Nos. 114931-33 was certified to us for automatic review of the decision of the Court of Appeals against the four accused-appellants sentenced to reclusion perpetua. Before this court, accused-appellants assign the following errors: I THE HONORABLE COURT OF APPEALS GRAVELY ERRED WHEN IT NOTED THAT THE ACCUSED FAILED TO CITE ANYTHING ON RECORD TO SUPPORT THEIR AVERMENT THAT THERE WERE NO WITNESSES WHO HAVE COME FORWARD TO IDENTIFY THE PERSONS RESPONSIBLE FOR THE DEATH OF STEPHEN SALCEDO. II THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN GIVING CREDENCE TO THE UNRELIABLE, DOUBTFUL, SUSPICIOUS AND INCONCLUSIVE TESTIMONIES OF PROSECUTION WITNESS RANULFO SUMILANG. III THE HONORABLE COURT OF APPEALS LIKEWISE ERRED IN FINDING THE ACCUSED GUILTY WHEN THERE WAS NO EVIDENCE TO PROVE THAT ANY OF THE ACCUSED CARRIED A HARD AND BLUNT INSTRUMENT, THE ADMITTED CAUSE OF THE HEMORRHAGE RESULTING IN THE DEATH OF THE DECEASED. IV THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN FINDING THAT THERE EXISTS CONSPIRACY AMONG THE PRINCIPAL ACCUSED. V

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THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN FINDING THAT THE CRIME COMMITTED IS MURDER AND NOT DEATH (HOMICIDE) CAUSED IN A TUMULTUOUS AFFRAY. 25 In their additional brief, appellants contend that: I THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN REACHING A CONCLUSION OF FACT UTILIZING SPECULATIONS, SURMISES, NON-SEQUITUR CONCLUSIONS, AND EVEN THE DISPUTED DECISION OF THE TRIAL COURT, TO UPHOLD THE VALIDITY OF THE VERY SAME JUDGMENT, ALL CONTRARY TO THE RULES OF EVIDENCE. II THE HONORABLE COURT OF APPEALS ERRED IN ADMITTING EXHIBITS "D", "G", "O", "P", "V", TO "V-48", "W" TO "W-13", ALL OF WHICH WERE NOT PROPERLY IDENTIFIED. III THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN CONCLUDING THAT CONSPIRACY EXISTED IN THE CASE AT BAR DISREGARDING ALTOGETHER THE SETTLED JURISPRUDENCE ON THE MATTER. IV THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN RULING THAT THE CRIME COMMITTED WAS MURDER, NOT DEATH (HOMICIDE) IN TUMULTUOUS AFFRAY SIDESTEPPING IN THE PROCESS THE FACTUAL GROUNDS SURROUNDING THE INCIDENT. 26 Appellants mainly claim that the Court of Appeals erred in sustaining the testimonies of the two in prosecution eyewitnesses, Ranulfo Sumilang and Renato Banculo, because they are unreliable, doubtful and do not deserve any credence. According to them, the testimonies of these two witnesses are suspect because they surfaced only after a reward was announced by General Lim. Renato Banculo even submitted three sworn statements to the police geared at providing a new or improved version of the incident. On the witness stand, he mistakenly identified a detention prisoner in another case as accused Rolando Fernandez. 27 Ranulfo Sumilang was evasive and unresponsive prompting the trial court to reprimand him several times. 28 There is no proof that Banculo or Sumilang testified because of the reward announced by General Lim, much less that both or either of them ever received such reward from the government. On the contrary, the evidence shows that Sumilang reported the incident to the police and submitted his sworn statement immediately two hours after the mauling, even before announcement of any

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reward. 29 He informed the police that he would cooperate with them and identify Salcedo's assailants if he saw them again. 30 The fact that Banculo executed three sworn statements does not make them and his testimony incredible. The sworn statements were made to identify more suspects who were apprehended during the investigation of Salcedo's death. 31 The records show that Sumilang was admonished several times by the trial court on the witness stand for being argumentative and evasive. 32 This is not enough reason to reject Sumilang's testimony for he did not exhibit this undesirable conduct all throughout his testimony. On the whole, his testimony was correctly given credence by the trial court despite his evasiveness at some instances. Except for compelling reasons, we cannot disturb the way trial courts calibrate the credence of witnesses considering their visual view of the demeanor of witnesses when on the witness stand. As trial courts, they can best appreciate the verbal and non-verbal dimensions of a witness' testimony. Banculo's mistake in identifying another person as one of the accused does not make him an entirely untrustworthy witness. 33 It does not make his whole testimony a falsity. An honest mistake is not inconsistent with a truthful testimony. Perfect testimonies cannot be expected from persons with imperfect senses. In the court's discretion, therefore, the testimony of a witness can be believed as to some facts but disbelieved with respect to the others. 34 We sustain the appellate and trial courts' findings that the witnesses' testimonies corroborate each other on all important and relevant details of the principal occurrence. Their positive identification of all petitioners jibe with each other and their narration of the events are supported by the medical and documentary evidence on record. Dr. Roberto Garcia, the medico-legal officer of the National Bureau of Investigation, testified that the victim had various wounds on his body which could have been inflicted by pressure from more than one hard object. 35 The contusions and abrasions found could have been caused by punches, kicks and blows from rough stones. 36 The fatal injury of intracranial hemorrhage was a result of fractures in Salcedo's skull which may have been caused by contact with a hard and blunt object such as fistblows, kicks and a blunt wooden instrument. 37 Appellants do not deny that Salcedo was mauled, kicked and punched. Sumilang in fact testified that Salcedo was pummeled by his assailants with stones in their hands. 38 Appellants also contend that although the appellate court correctly disregarded Exhibits "D," "G," and "P," it erroneously gave evidentiary weight to Exhibits "O," "V," "V-1" to "V-48," "W," "W-1" to "W-13." 39 Exhibit "O" is the Joint Affidavit of Pat. Flores and Pat. Bautista, the police intelligenceoperatives who witnessed the rally and subsequent dispersal operation. Pat. Flores properly identified Exhibit "O" as his sworn statement and in fact gave testimony corroborating the contents thereof. 40 Besides, the Joint Affidavit merely reiterates what the other prosecution witnesses testified to. Identification by Pat. Bautista is a surplusage. If appellants wanted to impeach the said affidavit, they should have placed Pat. Flores on the witness stand.

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Exhibits "V," "V-1" to "V-48" are photographs taken of the victim as he was being mauled at the Luneta starting from a grassy portion to the pavement at the Rizal Monument and along Roxas Boulevard, 41 as he was being chased by his assailants 42 and as he sat pleading with his assailants. 43 Exhibits "W", "W-1" to "W-13" are photographs of Salcedo and the mauling published in local newspapers and magazines such as the Philippine Star, 44 Mr. and Ms. Magazine, 45 Philippine Daily Inquirer, 46 and the Malaya. 47 The admissibility of these photographs is being questioned by appellants for lack of proper identification by the person or persons who took the same. The rule in this jurisdiction is that photographs, when presented in evidence, must be identified by the photographer as to its production and testified as to the circumstances under which they were produced. 48 The value of this kind of evidence lies in its being a correct representation or reproduction of the original, 49 and its admissibility is determined by its accuracy in portraying the scene at the time of the crime. 50 The photographer, however, is not the only witness who can identify the pictures he has taken. 51 The correctness of the photograph as a faithful representation of the object portrayed can be proved prima facie, either by the testimony of the person who made it or by other competent witnesses, after which the court can admit it subject to impeachment as to its accuracy. 52 Photographs, therefore, can be identified by the photographer or by any other competent witness who can testify to its exactness and accuracy. 53 This court notes that when the prosecution offered the photographs as part of its evidence, appellants, through counsel Atty. Alfredo Lazaro, Jr. objected to their admissibility for lack of proper identification. 54 However, when the accused presented their evidence, Atty. Winlove Dumayas, counsel for accused Joselito Tamayo and Gerry Neri used Exhibits "V", "V-1" to "V-48" to prove that his clients were not in any of the pictures and therefore could not have participated in the mauling of the victim. 55 The photographs were adopted by appellant Joselito Tamayo and accused Gerry Neri as part of the defense exhibits. And at this hearing, Atty. Dumayas represented all the other accused per understanding with their respective counsels, including Atty. Lazaro, who were absent. At subsequent hearings, the prosecution used the photographs to cross-examine all the accused who took the witness stand. 56 No objection was made by counsel for any of the accused, not until Atty. Lazaro appeared at the third hearing and interposed a continuing objection to their admissibility. 57 The objection of Atty. Lazaro to the admissibility of the photographs is anchored on the fact that the person who took the same was not presented to identify them. We rule that the use of these photographs by some of the accused to show their alleged non-participation in the crime is an admission of the exactness and accuracy thereof. That the photographs are faithful representations of the mauling incident was affirmed when appellants Richard de los Santos, Nilo Pacadar and Joel Tan identified themselves therein and gave reasons for their presence thereat. 58 An analysis of the photographs vis-a-vis the accused's testimonies reveal that only three of the appellants, namely, Richard de los Santos, Nilo Pacadar and Joel Tan could be readily seen in various belligerent poses lunging or hovering behind or over the victim. 59 Appellant Romeo Sison appears only once and he, although afflicted with hernia is shown merely running after the victim. 60Appellant Joselito Tamayo was not identified in any of the pictures. The absence of the two appellants in the photographs does not exculpate them. The photographs did not capture the entire sequence of the killing of Salcedo but only segments thereof. While the pictures did not
51

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record Sison and Tamayo hitting Salcedo, they were unequivocally identified by Sumilang and Banculo 61Appellants' denials and alibis cannot overcome their eyeball identification. Appellants claim that the lower courts erred in finding the existence of conspiracy among the principal accused and in convicting them of murder qualified by abuse of superior strength, not death in tumultuous affray. Death in a tumultuous affray is defined in Article 251 of the Revised Penal code as follows: Art. 251. Death caused in a tumultuous affray. When, while several persons, not composing groups organized for the common purpose of assaulting and attacking each other reciprocally, quarrel and assault each other in a confused and tumultuous manner, and in the course of the affray someone is killed, and it cannot be ascertained who actually killed the deceased, but the person or persons who inflicted serious physical injuries can be identified, such person or persons shall be punished by prison mayor. If it cannot be determined who inflicted the serious physical injuries on the deceased, the penalty ofprision correccional in its medium and maximum periods shall be imposed upon all those who shall have used violence upon the person of the victim. For this article to apply, it must be established that: (1) there be several persons; (2) that they did not compose groups organized for the common purpose of assaulting and attacking each other reciprocally; (3) these several persons quarrelled and assaulted one another in a confused and tumultuous manner; (4) someone was killed in the course of the affray; (5) it cannot be ascertained who actually killed the deceased; and (6) that the person or persons who inflicted serious physical injuries or who used violence can be identified. 62 A tumultuous affray takes place when a quarrel occurs between several persons and they engage in a confused and tumultuous affray, in the course of which some person is killed or wounded and the author thereof cannot be ascertained. 63 The quarrel in the instant case, if it can be called a quarrel, was between one distinct group and one individual. Confusion may have occurred because of the police dispersal of the rallyists, but this confusion subsided eventually after the loyalists fled to Maria Orosa Street. It was only a while later after said dispersal that one distinct group identified as loyalists picked on one defenseless individual and attacked him repeatedly, taking turns in inflicting punches, kicks and blows on him. There was no confusion and tumultuous quarrel or affray, nor was there a reciprocal aggression at this stage of the incident. 64 As the lower courts found, the victim's assailants were numerous by as much as fifty in number 65 and were armed with stones with which they hit the victim. They took advantage of their superior strength and excessive force and frustrated any attempt by Salcedo to escape and free himself. They followed Salcedo from the Chinese Garden to the Rizal Monument several meters away and hit him mercilessly even when he was already fallen on the ground. There was a time when Salcedo was able to get up, prop himself against the pavement and wipe off the blood from his face. But his attackers continued to pursue him relentlessly. Salcedo could not defend himself nor could he find means to defend himself. Sumilang tried to save him from his assailants
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but they continued beating him, hitting Sumilang in the process. Salcedo pleaded for mercy but they ignored his pleas until he finally lost consciousness. The deliberate and prolonged use of superior strength on a defenseless victim qualifies the killing to murder. Treachery as a qualifying circumstance cannot be appreciated in the instant case. There is no proof that the attack on Salcedo was deliberately and consciously chosen to ensure the assailants' safety from any defense the victim could have made. True, the attack on Salcedo was sudden and unexpected but it was apparently because of the fact that he was wearing a yellow t-shirt or because he allegedly flashed the "Laban" sign against the rallyists, taunting them into mauling him. As the appellate court well found, Salcedo had the opportunity to sense the temper of the rallyists and run away from them but he, unfortunately, was overtaken by them. The essence of treachery is the sudden and unexpected attack without the slightest provocation on the part of the person being attacked. 66 The qualifying circumstance of evident premeditation was alleged in the information against Joselito Tamayo. Evident premeditation cannot be appreciated in this case because the attack against Salcedo was sudden and spontaneous, spurred by the raging animosity against the socalled "Coryistas." It was not preceded by cool thought and reflection. We find however the existence of a conspiracy among appellants. At the time they were committing the crime, their actions impliedly showed a unity of purpose among them, a concerted effort to bring about the death of Salcedo. Where a conspiracy existed and is proved, a showing as to who among the conspirators inflicted the fatal wound is not required to sustain a conviction. 67 Each of the conspirators is liable for all acts of the others regardless of the intent and character of their participation, because the act of one is the act of all. 68 The trial court awarded the heirs of Salcedo P74,000.00 as actual damages, P30,000.00 as moral and exemplary damages, and one half of the costs of the suit. At the time he died on July 27, 1986, Salcedo was twenty three years old and was set to leave on August 4, 1986 for employment in Saudi Arabia. 69 The reckless disregard for such a young person's life and the anguish wrought on his widow and three small children, 70 warrant an increase in moral damages from P30,000.00 to P100,000.00. The indemnity of P50,000.00 must also be awarded for the death of the victim. 71 IN VIEW WHEREOF, the decision appealed from is hereby affirmed and modified as follows: 1. Accused-appellants Romeo Sison, Nilo Pacadar, Joel Tan and Richard de los Santos are found GUILTY beyond reasonable doubt of Murder without any aggravating or mitigating circumstance and are each hereby sentenced to suffer the penalty of reclusion perpetua; 2. Accused-appellant Joselito Tamayo is found GUILTY beyond reasonable doubt of the crime of Homicide with the generic aggravating circumstance of abuse of superior strength and, as a consequence, he is sentenced to an indeterminate penalty of TWELVE (12) YEARS of prision mayoras minimum to TWENTY (20) YEARS of reclusion temporal as maximum; 3. All accused-appellants are hereby ordered to pay jointly and severally the heirs of Stephen Salcedo the following amounts:

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(a) P74,000.00 as actual damages; (b) P100,000.00 as moral damages; and (c) P50,000.00 as indemnity for the death of the victim. Costs against accused-appellants. SO ORDERED.

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Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-40294 July 11, 1986 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. TOBIAS RIBADAJO, ROMEO CORPUZ, FEDERICO BASAS, ROSENDO ANOR and RODOLFO TORRES,defendants-appellants. MELENCIO-HERRERA, J.: The death penalty having been imposed by the then Circuit Criminal Court of Pasig, Rizal in Criminal Case No. CCC-VII-1329-Rizal for Murder, the case is now before us for automatic review. There were originally six (6) accused: Tobias Ribadajo, Romeo Corpuz, Federico Basas, Rosendo Anor, Rodolfo Torres and Loreto Rivera, all inmates of the New Bilibid Prison at Muntinlupa, Rizal One of the however, Loreto Rivera, died during the pendency of the case. We find the facts of the case, as narrated in the Decision of the trial Court, home by the evidence thus: From the evidence on record, it is clear that on November 18, 1971, at about 7:56 o'clock in the evening, prisoners from brigade 3-C, Muntinlupa, Rizal succeeded in opening the door of their dormitory by means of a false key (tin can) and attacked the inmates from dormitory 3-a, while the latter were then getting their food rations from the delivery truck wherein the victim was among them. Records further show that while the victim Bernardo Cutamora, was getting his ration he was sandwiched by the accused who rushed towards the door and stabbed the victim simultaneously whereby the latter sustained multiple stab wounds on the different parts of his body which wounds caused his death as evidenced by Necropsy Report marked Exhibit 'A'. To gain exit from their brigade, accused Tobias Ribadajo used a false key (tin can) and immediately the door was opened and his co-accused rushed towards the place where the prisoners of brigade 3-a were waiting for their ration and with respective matalas on their hands they stabbed the victim to death. All the assailants confessed participation in the killing claiming that they did it because they were being mocked by the inmates of 3-a who were members of the OXO there was a time when these inmates threw human waste on their brigade shouting that 'you Commando members could not do anything', and then they would laugh at them; that in order to avenge this mockery the accused headed by Tobias Ribadajo called up a meeting in the afternoon of November 18, 1971, at around 1:00, and they planned to kill any prisoner from brigade 3-a in the evening and they would do the killing at the time they (inmates from 3-a) were waiting for their 'rancho'. Soon their plan was consummated and the victim, Bernardo Cutamora was the unlucky guy overcome by their respective bladed weapons. 1
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TITLE VIII: CRIMES AGAINST PERSONS

In an investigation conducted by the Investigation Section of the New Bilibid Prisons on November 20, 1971, all the accused executed statements admitting their participation in the slaying of Bernardo Cutamora. 2 Consequently, an Information for Murder was filed against them on April 24, 1973 with the then Circuit Criminal Court of Pasig, Rizal. The delay in filing was due to the separation from the service of a principal investigator. Upon arraignment on July 5, 1973, accused Tobias Ribadajo, Romeo Corpuz, Loreto Rivera (who died on August 15, 1974, p. 46, Rollo), and Rodolfo Torres, all with the assistance of counsel de officio, pleaded Guilty, while the other two accused Federico Basas and Rolando Aunor, alias Rolando Amor, alias Rolando Anor, alias Tagalog, entered pleas of Not Guilty. 3 The Information was amended to correct the name of Rolando Aunor to Rosendo Anor, alias Negro, alias Tagalog. Thereafter, evidence was adduced. At the presentation of evidence for the defense, accused Tobias Ribadajo, Romeo Corpuz, and Rodolfo Torres withdrew their pleas of Guilty. 4 Accused Corpuz and Ribadajo also denied their participation in the killing of Bernardo Cutamora, and repudiated their confessions, claiming that they had signed the same under duress. Accused Federico Basas and Rodolfo Torres admitted having executed their respective confessions, 5 while accused Rosendo Anor changed his plea of Not Guilty to Guilty of the lesser offense of Homicide. 6 On November 28, 1974, the Trial Court pronounced a verdict of guilty, as follows: WHEREFORE, after determining the degree of culpability of all the accused, namely: Tobias Ribadajo, Romeo Corpuz, Federico Basas, Rosendo Anor and Rodolfo Torres, the Court finds them GUILTY, beyond reasonable doubt, of the crime of Murder, as defined under Article 248 of the Revised Penal Code, as charged in the information, and hereby sentences each one of them to suffer the penalty of DEATH; to indemnify the heirs of the victim the amount of P12,000.00, jointly and severally; to pay moral damages in the amount of P10,000.00 and another P10,000.00, as exemplary damages, jointly and severally, and to pay their proportionate shares of the costs. 7 Appellants claim infirmity of the Trial Court Decision on the following grounds: I The Trial Court erred in admitting as evidence, and in giving weight to the supposed extrajudicial confession of the accused. II The Trial Court erred in finding the presence of the aggravating circumstances of treachery, evident premeditation and recidivism. III The Trial Court erred in convicting the accused and in imposing the death penalty.

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Appellants submit that their extrajudicial confessions were extracted by force; that they had been exposed for more or less one day to the heat of the sun and the wetness and coldness of the rain, and had been subsequently beaten up and placed in a "bartolina " On their face, however, the individual confessions do not show any suspicious circumstance Casting doubt on their integrity. On the contrary, they are replete with details only appellants could have supplied. In those statements, they called their co-accused by their nicknames, not knowing their true names, like "Lilat" for Basas, "Manok" for Anor and "Bukid" for Torres. The investigators could not have concocted that on November 18, 1971, at around 1:00 P.M., appellants had planned to kill any prisoner from Brigade 3-a during the distribution of the "rancho"; that they are members of the Sigue-Sigue Commando Gang and their leader is accused Ribadajo; that, as planned, on the same date at around 8:00 P.M., Ribadajo using a false key tin can opened the door of their dormitory and an the accused rushed towards the place where the inmates from Brigade 3-a were waiting for their food; that they stabbed the victim with their "matalas"; and their motive was to avenge the throwing of human waste on them by inmates of Brigade 3-a. What is more, during the presentation of evidence by the defense, they were all admitting their guilt but for the lesser offense of Homicide, as manifested by their de officio counsel. Atty. Galvan Your Honor, inasmuch as I have also conferred with all the accused and that having appointed me as counsel de oficio before when Fiscal Guerrero was here and after a long conference with the accused, and if the Fiscal will not object if all the accused will change their former plea of not guilty to that of guilty, as that was their proposal and they were very insistent, that if the Court will allow them to withdraw their former plea of not guilty and substitute with a plea of guilty to a lesser of homicide, your Honor. 8 Despite counsel's appeal for "humanity sake," the prosecution, however, opposed the change of plea because it had already finished with the presentation of its evidence. We find no sufficient basis, therefore, to destroy the presumption of voluntariness of appellants' confessions. The presumption of the law is in favor of the spontaneity and voluntariness of an extrajudicial confession of an accused in a criminal case, 9 for no sane person would deliberately confess to the commission of a crime unless prompted to do so by truth and conscience. 10 The burden of proof is upon the declarant to destroy this presumption. 11Mere repudiation of confession by the accused at the trial is not sufficient to disregard his confession. 12 Concrete evidence of compulsion or duress must be presented to sustain their claim of maltreatment. No such evidence has been put forward. No report of such maltreatment was made to the prison authorities nor to the Fiscal who conducted the preliminary investigation. During crossexamination, Corpuz admitted that he was not maltreated. 13Ribadajo himself did not protest when he was brought to Exequiel Santos, Administrative Officer III, Bureau of Prisons, who, in his own words, was "like a father to me." 14 As to appellants' claim that they have not been informed of their right to silence and to counsel during custodial investigation, suffice it to state that the proscription against the admissibility of
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confessions obtained from an accused during the period of custodial interrogation, in violation of procedural safeguards, applies to confessions obtained after the effectivity of the 1973 Constitution. 15 No law gives the accused the right to be so informed before the enactment of the 1973 Constitution, 16 even if presented after January 17, 1973. 17 That Constitutional guaranty relative to confessions obtained during custodial investigation does not have any retroactive effect. 18 The Trial Court committed no reversible error either in finding the existence of the aggravating circumstance of treachery, evident premeditation and recidivism. Treachery was present because the attack on the victim was sudden and unexpected. 19 When the inmates from Brigade 3-a went out to get their food ration appellants immediately rushed out of their own cell and attacked, with their improvised weapon, the unsuspecting victim. There was a collective effort on appellants' part, who were all armed, in assaulting the victim who was unarmed, 20 and who was completely deprived of an opportunity to prepare for the attack or to defend himself, 21 or to prepare for a fight or retreat. 22 Evident premeditation was also present because the plan to kill any prisoner from Brigade 3-a was hatched around 1:00 o'clock in the afternoon of November 18, 1971, and the plan was consummated at about 8:00 in the evening of the same day. Evident premeditation is present when murder was contemplated at least one hour prior to its execution. 23 Appellants had ample time to desist from the execution of the offense but they clung to their determination to achieve their criminal intent. The aggravating circumstance of recidivism has to be considered because all the accused at the time of the commission of the offense, were serving their respective sentences by virtue of a final judgment for other crimes embraced in the same Title of the Revised Penal Code (Corpuz for Homicide; Ribadajo for Murder; Basas for Murder; Anor for Murder; and Torres for Homicide). No error either was committed by the Trial Court in imposing the death penalty. The penalty for murder is reclusion temporal in its maximum period to death. 24 Considering that appellants committed the present felony after having been convicted by final judgment and while serving their respective sentences, they should be punished by the maximum period of the penalty prescribed by law for the new felony. 25 Given this circumstance, Anor's change of plea from Guilty to Not Guilty will not change his liability besides the fact that it was made after the prosecution had rested its case. 26 The defense contention that appellants should be held guilty only for "Death Caused in a Tumultuous Affray" and sentenced to prision mayor under Article 251 of the Revised Penal Code, upon the allegation that the commotion was spontaneous, lacks merit. There was no confusion and tumultuous quarrel or affray, nor was there a reciprocal aggression between both parties. 27 Appellants rushed out of their cell with the common purpose of attacking the victim of a rival group, which unity of purpose indicates appellants' common responsibility for the consequences of their aggression. 28 WHEREFORE, the judgment of conviction is hereby AFFIRMED. However, for lack of the necessary votes, the penalty to be imposed on all the accused-appellants is reduced to reclusion perpetua. The indemnity to be paid to the heirs of the deceased is hereby raised to P30,000.00. Proportionate costs against the accused. SO ORDERED.
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UNINTENTIONAL ABORTION Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-50884 March 30, 1988 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FILOMENO SALUFRANIA, defendant-appellant. PADILLA, J.: In an information, dated 7 May 1976, Filomeno Salufrania y Aleman was charged before the Court of First Instance of Camarines Norte, Branch I, with the complex crime of parricide with intentional abortion, committed as follows: That on or about the 3rd day of December, 1974, in Tigbinan, Labo, Camarines Norte, Philippines, and within the jurisdiction of the Honorable Court the accused Filomeno Salufrania y Aleman did then and there, willfully, unlawfully, and feloniously attack, assault and use personal violence on MARCIANA ABUYO-SALUFRANIA, the lawfully wedded wife of the accused, by then and there boxing and stranging her, causing upon her injuries which resulted in her instantaneous death; and by the same criminal act committed on the person of the wife of the accused, who was at the time 8 months on the family way, the accused likewise did then and there willfully, unlawfully, and feloniously cause the death of the child while still in its maternal womb, thereby committing both crimes of PARRICIDE and INTENTIONAL ABORTION as defined and punished under Art. 246 and Art. 256, paragraph I, of the Revised Penal Code, to the damage and prejudice of the heirs of said woman and child in the amount as the Honorable Court shall assess. CONTRARY TO LAW Upon arraignment, the accused, assisted by counsel de officio, pleaded not guilty to the offenses charged. After trial the lower court rendered a decision ** dated 9 August 1978, the dispositive part of which states: WHEREFORE, finding the accused Filomeno Salufrania y Aleman guilty beyond reasonable doubt, of the complex crime of Parricide with Intentional Abortion, he is hereby sentenced to suffer the penalty of DEATH, to indemnify the heirs of the deceased Marciano Abuyo in the sum of P12,000.00 and to pay the costs. "For unselfish, valuable and exemplary service rendered by counsel de oficio, Atty. Marciano C. Dating, Jr., a compensation of P500.00 is hereby recommended for him subject to the availability of funds
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SO ORDERED. The accused having been sentenced to suffer the penalty of death, this case is on automatic review before this Court. At the trial in the court a quo, the prosecution presented the following witnesses: Dr. Juan L. Dyquiangco Jr., Pedro Salufrania and Narciso Abuyo. Dr. Juan L. Dyquiangco Jr., who was then Rural Health Officer of Talisay, Camarines Norte, testified that, after passing the Board Examination, he was employed as a Resident Physician of La Union Provincial Hospital, then as Junior Resident Physician of Bethane Hospital in San Fernando, La Union and that later, he joined the government service, starting from 1968 up to the time of the trial; that as a Doctor of Medicine, he had performed about ten (10) post mortem examinations; that he was called upon by the Municipal Judge of Talisay to examine the corpse of Marciana Abuyo-Salufrania that was exhumed from its grave in the Municipal Cemetery of Talisay at around 11:00 o'clock in the morning of 11 December 1974; that his post mortem examination lasted from 12:30 o'clock to 2:00 o'clock in the afternoon of the same day. He reduced his findings of injuries into writing. (Exhibit "A"), which, together with their probable cause, as testified to by him, are as follows: Injury 1) Multiple abrasions with contusion, left leg, middle part, covering an area of about 2 & 1/2 by 5 inches. 2) Abrasions, 1/2 by 2 inches, medial side of the cubi tal fossa (back left leg) 3) Multiple pinhead sized wounds, right face, starting from the side of the
61

Cause "Blunt object or friction by hard object" (tsn., Aug. 20, posterior 1976, p. 7)

Friction object"

on

hard

(tsn., Aug. 20, 1976, p. 7)

Hard pinhead material

sized

(tsn., Aug. 20, 1976, p. 7)

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right eye down to mandibular bone (right check) 4) Upper eyelid right No cause given

more prominent than the left eyelid ("the right upper eyelid a little bit bulging than the left eye "and" sort of "swollen") (tsn., Aug. 20, 1976, pp. 78) 5) Tongue protruding bet ween the lips, about 1 inch teeth line. Usually, the main cause of protruding during death is strangulation. tongue (by)

(tsn., Aug. 20, 1976, p. 8) 6) Deceased pregnant is

with a baby boy about 7-8 months old Aug. 20, 1976, p. 8). Dr. Dyquiangco testified that after conducting the post mortem examination, he issued a certification thereof (Exhibit "A"); that he issued a death certificate (Exhibit "B") for the deceased Marciano Abuyo-Salufrania, bearing the date of 5 December 1974, made on the basis of the information relayed by a certain Leonila Loma to his nurse before the burial, without mentioning
62

(tsn.,

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the cause of death; that the cause of death, as cardiac arrest, was indicated on said death certificate only after the post mortem examination on 11 December 1974. The other witness for the prosecution was Pedro Salufrania, son of herein appellant and of the deceased. The lower court's decision states that, by reason of interest and relationship, before Pedro Salufrania was allowed to testify against his father-accused Filomeno Salufrania, he was carefully examined by the prosecuting officer and the defense counsel under the careful supervision of the court a quo, to determine whether, at his age of 13 years old, he was already capable of receiving correct impressions of facts and of relating them truly and, also, whether he was compelled and/or threatened by anybody to testify against his father-accused. 1 The lower court found Pedro Salufrania to be determined and intelligent. He convincingly declared that he was not threatened by any of his uncles on his mother's side to testify against his father, because it was true that the latter killed his mother. Then, formally testifying as the prosecution's lone eyewitness, he stated that his father Filomeno Salufrania and his mother Marciana Abuyo quarrelled at about 6:00 o'clock in the evening of 3 December 1974, in their small house at a far away sitio in barrio Tigbinan, Labo, Camarines Norte; that during said quarrel, he saw his father box his pregnant mother on the stomach and, once fallen on the floor, his father strangled her to death; that he saw blood ooze from the eyes and nose of his mother and that she died right on the spot where she fell. Pedro Salufrania further testified that after killing his mother, the accused- appellant went out of the house to get a hammock; that his brother Alex and he were the only ones who witnessed how the accused killed their mother because his sister and other brothers were already asleep when the horrible incident happened; that his brothers Celedonio, Danilo and sister Merly woke up after the death of their mother and kept watch at their mothers body while their father was away; that their father arrived early the next morning with the hammock and after placing their dead mother on the hammock, the accused carried her on his shoulder and brought the cadaver to the house of his sister Conching, located at a populated section of Tigbinan that from Tigbinan the corpse was transferred to Gabon, Talisay, Camarines Norte for burial. Continuing his testimony, Pedro Salufrania stated that he is now living with his uncle Eduardo Abuyo and had refused and still refused to live with his father-accused, because the latter has threatened to kill him and his other brothers and sister should he reveal the true cause of his mother's death. The third witness for the prosecution was Narciso Abuyo, a resident of Gabon, Talisay, Camarines Norte. He testified that the accused Filomeno Salufrania and his sister, the deceased Marciana Abuyo, were lawfully wedded husband and wife as evidenced by a marriage contract (Exhibit "C"). He declared that his sister was more or less seven (7) months pregnant when she died; that he first came to know about his sister's death on 4 December 1974 thru his nephews Pedro and Alex Salufrania who first informed him that their mother died of stomach ailment and headache; that he went to Tigbinan to request for the body of his sister so that it may be buried in Talisay, Camarines Norte and, as intended, Marciana Abuyo was buried in the Talisay Cemetery on 6 December 1974.

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Narciso Abuyo also declared that after the burial of Marciana Abuyo, the three (3) children of his deceased sister went to his house and refused to go home with their father Filomeno Salufrania; that when asked for the reason why, his nephew Alex Salufraa told him that the real cause of death of their mother was not stomach ailment and headache, rather, she was boxed on the stomach and strangled to death by their father; that immediately after learning of the true cause of death of his sister, he brought the matter to the attention of the police authorities of Talisay, Camarines Norte, who investigated Alex and Pedro Salufirania and later, to that of the Office of the Provincial Fiscal of Camarines Norte. The defense had for witnesses Geronimo Villan, Juanito Bragais, Angeles Liling Balce and the accused Filomeno Salufrania. Geronimo Villan testified that he was a neighbor of Filomeno Sulfrania. He declared that Marciana Abuyo died at around 6:00 o'clock in the morning of 4 December 1974 in her house at Sitio Kapagisahan Tigbinan Labo, Camarines Norte; that he happened to pass by said house because his attention was attracted by the bright light in the fireplace and he saw Filomeno Salufrania boiling "ikmo" and garlic as medicine for his wife who was about to deliver a child; that he helped the accused by applying "ikmo" to the different parts of the body of Marciana Abuyo and by administering the native treatment known as "bantil", that is, by pinching and pulling the skin with two fingers of his closed fist; that when the condition of Marciana Abuyo worsened, he told Filomeno Salufrania to go and get Juanita Bragais who is known as a healer but the latter arrived at about 7:00 o'clock in the morning of 4 December 1974 and that at that time Marciana Abuyo was already dead. Witness Juanita Bragais testified that he was fetched by Felipe Salufrania, another son of Filomeno Salufrania at about 6:00 o'clock in the morning of 4 December 1974. He further testified that when he reached the house of the Salufranias, Marciana Abuyo was already dead so he just helped Filomeno Salufrania in transferring the body of his wife to the house of the latter's brotherin-law at Tigbinan, Labo, Camarines Norte. Angeles Liling Balce, who claimed to be a former resident of Kapagisahan Tigbinan, Labo, Camarines Norte testified that she arrived in the house of Filomeno Salufrania at about 6:00 o'clock in the morning of 4 December 1974 after being called by one of the latter's sons; that she saw Marciana still in a coma lying on the lap of her husband who informed her that Marciana was suffering from an old stomach ailment. The accused Filomeno Salufrania admitted that he was that lawful husband of the deceased Marciana Abuyo; that at around 9:00 o'clock in the morning of 3 December 1974, Marciana arrived home from Talisay where she had earlier stayed for about a week; that she was hungry upon her arrival, so he allegedly cooked their food and after eating their lunch, he proceeded to his work while his wife rested in their house; that when he returned home at 3:00 o'clock in the afternoon of that same day, his wife complained to him of stomach pain and he was told to prepare the beddings because she was already sleepy; that at about 4:00 o'clock in the morning of 4 December 1974, he was awakened by his wife who was still complaining of stomach pain, and that she asked for a drink of hot water; that while he was boiling water, Geronimo Villan arrived and assisted him in administering to his wife the native treatments known as "hilot" or massaging and "banti" that Geronimo Villan and Francisco Repuya alternately applied "bantil" to his wife but
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when her condition worsened, he woke up his children, Pedro and Alex to fetch Rico Villanueva who might be able to ,save the life of their mother; that his children left and returned without Rico Villanueva but the latter arrived a little later. Accused-appellant then went on to say that he sent for Juanito Bragais but the latter was not able to cure his wife, since the latter was already dead when he arrived; that after the death of his wife, he ordered his children to get the hammock of Kaloy Belardo whose house was about two (2) kilometers away from their house, and upon the arrival of the hammock, he placed the body of his wife thereon and brought it to the house of his sister Consolacion Salufrania in Tigbinan; that while the corpse of Marciana Abuyo was at Tigbinan he sent Chiding and his elder son to inform the brothers and sisters of his wife at Talisay about her death and that Leonila Abuyo and Salvador Abuyo came; that he informed the Barangay Captain of Tigbinan of the cause of death of his wife; that upon the suggestion of the brothers and sisters of Marciana Abuyo, especially Salvador Abuyo, the body of their sister was brought home to Talisay and thereafter buried at the Talisay Cemetery; that there was no quarrel between him and his wife that preceded the latter's death, and that during the lifetime of the deceased, they loved each other; that after her burial, his son Pedro Salufrania was taken by his brother-in-law Narciso Abuyo and since then, he was not able to talk to his son until during the trial; and that at the time of death of his wife, aside from the members of his family, Geronimo Villan Francisco Repuya and Liling Angeles Balce were also present. The case was considered submitted for decision by the trial court on 18 July 1978. As aforestated, the trial court found the appellant guilty of the crimes charged and sentenced him to the penalty of death. The appellant assigns the following errors allegedly committed by the trial court: I THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED ON THE BASIS OF THE TESTIMONY OF AN INCOMPETENT WITNESS, AND ON INCONSISTENT AND INSUFFICIENT EVIDENCE OF THE PROSECUTION, THEREBY VIOLATING THE RULE THAT THE ACCUSED IS ENTITLED TO AN ACQUITTAL UNLESS HIS GUILT IS SHOWN BEYOND ANY REASONABLE DOUBT. II ASSUMING ARGUENDO THAT THE EVIDENCE FOR THE PROSECUTION IS CREDIBLE AND SUFFICIENT, THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED OF THE COMPLEX CRIME OF PARRICIDE WITH INTENTIONAL ABORTION. III THE TRIAL COURT ERRED IN DISCREDITING THE EVIDENCE FOR THE ACCUSED. Appellant alleges that the trial court failed to determine the competence of Pedro Salufrania before he was allowed to testify. Since Pedro was allegedly a child of tender age, being only
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thirteen (13) years old when he testified, and only eleven (11) years old when the offense charged occurred, he is presumed incompetent under Rule 130 Sec. 19 (b) of the Revised Rules of Court, which includes among those who cannot be witnesses: Children who appear to the court to be of such tender age and inferior capacity as to be incapable of receiving correct impressions of the facts respecting which they are examined, or of relating them truly. Therefore, according to appellant, for failure of the trial court to determine Pedro's competence, the presumption of incompetency was not rebutted and Pedro's testimony should not have been admitted. Moreover, appellant stresses that there is no basis for the trial court's finding that Pedro is intelligent. Appellant's contention is without merit. The record shows that the trial court determined Pedro Salufrania's competency before he was allowed to testify under oath. 2 The trial court's conclusion that Pedro was intelligent and competent is fully supported by Pedro's responsiveness to the questions propounded to him when he was already under oath: A. Did you go here in court to testify voluntarily? Q. Yes, Your Honor. A. Were you not forced by your uncle to testify in his case? Q. No, I was not forced by my uncle. xxx xxx xxx A. The accused is your father? Q. Yes, sir. A. Do you love him? Q. No, sir. A. Your father is accused now of crime which carries the penalty of death, are you still willing to testify against him? xxx xxx xxx Q. Why did you say that you don't love your father A. Because he killed my mother. Q. And that is the reason why you hate your father now?

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A. Yes, sir. (tsn., pp. 3, 7,17, Nov. 12, 1976). Pedro's strong sense of moral duty to tell the truth, even though it should lead to his father's conviction, shows that he fully appreciated the meaning of an oath, which likewise proves that he was no longer a child of tender years at the time of his testimony. Appellant also alleges that, since Pedro changed his answer from no to yes when he was asked whether he was threatened by his uncle to testify against his father, shows that Pedro was lying and proves that he did not appreciate the meaning of an oath at all. 3 Again, this contention is without merit, Pedro became confused when the trial court ordered that the original question be reformed. Pedro's confusion is apparent from the fact that when asked the third time, he affirmed his first answer, Q. Isn't it that your uncle threatened you with bodily harm if you will not give statement before the police? A. No, sir. xxx xxx xxx Q. But later you actually went with your uncle to the police because you were threatened by him with bodily harm if you will not follow him? A. Yes, sir. Q. Is it true that your uncle threatened you with bodily harm if you will not give statement to the police? A. No, sir. (tsn., pp. 6, 7, Nov. 12, 1976) Appellant next lists the following alleged inconsistencies to discredit the testimony of Pedro. First, Pedro testified on direct examination that his mother died in the evening of December 3. while on cross-examination he said that she died in the morning of December 4. It must be noted that he affirmed twice during cross-examination that his mother died on December 3, just as he had testified during direct examination. Significantly, he did not mention December 4 as the date when she died, as appellant would make it appear. Pedro merely answered 'yes' to the question "And isn't it that your mother died in the early morning on that day (December 4) and not on the evening of December 3?" 4 Thus, Pedro's answer could have resulted only from a misapprehension of the a question, and for no other reason. Second, appellant alleges that Pedro testified on direct examination that he saw appellant leave the house to get a hammock after strangling the victim and then came back the following morning. However, upon cross-examination, Pedro testified that appellant left at noon or in the afternoon of December 4. Moreover, Pedro allegedly testified on re-direct that he saw appellant sleep beside the dead body of his mother. Again Pedro misapprehended the question propounded to him. Ajudicious reading of the transcript will bear this out:
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Q. When did your father leave to get the hammock? A. In the afternoon. Q. That may be when the body was brought to Talisay. When your father, rather, when you said that your father left to get a hammock so that your mother may be brought to Tigbinan what time was that? A. About 12:00 o'clock noon. (Tsn, p. 16, Nov. 12, 1976) One may discern that the court itself noticed that there was a missapprehension when it commented "that maybe when the body was brought to Talisay" after Pedro answered "In the afternoon". When Pedro answered "about 12:00 noon' he must have been referring to the time when appellant carried his dead wife to Tigbinan. It must be noted that the question was so worded that it could have misled Pedro to think that what was being asked was the time when appellant brought his dead wife to Tigbinan. In fact, there is nothing inconsistent with Pedro's testimony that he saw his father leave in the evening of December 3 and again saw him asleep and thus not noticed appellant's coming back after securing a hammock and sleeping beside the deceased. Pedro was therefore telling the truth when he said that, upon waking up, he saw his father sleeping beside his dead mother. By then, appellant had already returned with the hammock. Third, Pedro allegedly testified on direct examination that the corpse was carried to Tigbinan in the morning of December 4, while on cross-examination, he said it was in the evening. 5 It must be pointed out that Pedro merely answered "yes" to a question purportedly mentioning the time when the victim's body was transferred to Tigbinan. The question is as follows: "The corpse of your mother was brought to the Tigbinan proper when the vigil was had in the evening of December 4, is that right?" It is to be noted that the question's thrust is whether or not the victim's body was brought to Tigbinan. The time it was brought was merely incidental. Thus, Pedro may not have paid attention to the part of the question involving time. Moreover, the phrase "in the evening" may have referred either to the time of transport of the body or to the vigil, which could have definitely confused Pedro. Fourth, Pedro allegedly testified on direct examination that he, together with his brothers and sister, kept vigil beside their mother's dead body that night, while on cross-examination, he testified that they just kept lying down and pretended to sleep. 6 There is nothing inconsistent here. The children could have kept vigil while lying down with their deceased mother. Appellant further cites other alleged improbabilities to discredit Pedro's testimony. Appellant contends that it was improbable for Pedro to have seen the attack on his mother since he testified that the room was dimly lighted, and that, while the attach was going on, he closed his eyes pretending to sleep. 7 This contention is without merit. Even though the room was dimly lighted, Pedro was only two (2) meters away from his parents; thus, he could easily see, as he saw, the attack on his mother. 8 Also, although he pretended to be asleep, it was unlikely that he kept his eyes closed all the while, as he was aware that a fight was going on. Rather, it was to be expected that he had his eyes open and, thus, he saw the heinous crime unfold and ultimately consumated.

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Appellant alleges that he does not believe that it was fear of him that caused the delay in Pedro's divulging the real cause of his mother's death until 10 December 1974. According to appellant, such fear could no longer have influenced Pedro from December 6, the date he started to live separately from him. This contention is untenable. Even though Pedro started to live separately from his father from December 6, it cannot be said that the influence of appellant's threat suddenly ceased from that time. It must be noted that Pedro was young and was still very much under appellant's influence and control. The thought and memory of his father's viciousness were still too fresh even after three days from his mother's death. The fear that he too could be killed by appellant in like manner must have deterred him from divulging the truth earlier. Appellant also alleges that it was improbable for Pedro to have just watched the killing of his mother. This contention is untenable. At that moment, when his mother was being assaulted and strangled, Pedro must have been so shocked as to be rendered immobile and powerless to do anything. This is a normal reaction in such a situation. Besides, it is a fact of life that different people react differently to the same types of situations. 9 One cannot overlook that there is no standard form of behaviour when one is confronted by a shocking occurrence. 10 Appellant next alleges that since the prosecution has failed without satisfactory explanation to present Pedro's brother Alex who is alleged to be also an eyewitness to the killing of the victim, it is presumed that Alex's testimony would be adverse to the prosecution if presented. This contention is without merit. First, Alex, who is younger than Pedro by 3 years, may not have been competent to testify due to his tender age. Second, even assuming that he was competent to testify, his testimony could be merely corroborative. Corroboration is not necessary in this case because the details of the crime have already been testified to by Pedro with sufficient clarity. The failure to present all the eyewitnesses to an act does not necessarily give rise to an unfavorable presumption, especially when the testimony of the witness sought to be presented is merely corroborative. 11 Witnesses are to be weighed, not numbered, and it is a well established rule that the testimony of a single witness, even if uncorroborated, but positive and credible, is sufficient to support a conviction. 12 In any event, it is not for the appellant to say how many witnesses the prosecution should have presented. 13 The inconsistencies magnified by appellant in the testimony of Pedro Salufrania have been satisfactorily explained. In fact, some of them are not material since they neither touch upon the manner of death of the victim nor question the identity of the killer, both of which were unwaveringly testified upon by Pedro. Thus, with the alleged inconsistencies and improbabilities explained away, Pedro's testimony remains unperturbed. Even if there were discrepancies, such discrepancies were minor and may be considered as earmarks of verisimilitude. 14 The trial court's assessment of Pedro's testimony, as quoted hereunder, deserves more than passing consideration: ... The testimony of eye-witness Pedro Salufrania, 13-year old son of the victim Marciana Abuyo and her killer-spouse Filomeno Salufrania, appears to be very clear, convincing and truthful. It is vivid as to the details of the horrible occurence that took place at about 6:00 o'clock in the evening of December 3, 1974 in their small house at a far away sitio of Tigbinan, Labo, Camarines Norte, resulting in the untimely and cruel death of her (sic) mother. He and his brother Alex were the only eyewitnesses to the gory crime committed by their father. The
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credibility of this witness (Pedro Salufrania) and his testimony was invested when, despite rigid cross-examination, the veracity of his testimony in chief was not impeached. He remained firm and on the verge of crying, when he pointed an accusing finger at his father during the trial. He was unshaken notwithstanding a long and detailed cross-examination. And, there is reason to bestow complete credence to his testimony because he had the opportunity to closely observe how his father had deliberately and cruelly ended the life of his mother. Despite his tender age and apparent childish innocence, this Court believes that he can clearly perceive and perceiving, make known his perception, precluding the possibility of coaching or tutoring by someone. His declaration as to when, where and how the horrible incident complained of happened is the believable version. 15 Appellant questions the competence of Dr. Dyquiangco as an expert witness, since this is the first time that the doctor conducted an autopsy on a cadaver which had been buried for about a week. It must be noted, however, that although this was the doctor's first autopsy under circumstances present in this case, he had, however, conducted similar post-mortem examinations on ten (10) other occasions. This would constitute sufficient experience. Significantly, appellant did not object to the doctor's expression of medical opinions during the trial. Being an expert in his field, the doctor is presumed to have taken all pertinent factors into consideration with regard to the autopsy, including embalming and the state of the cadaver's decomposition. Dr. Juan Dyquiangco Jr., was a disinterested witness in the case, and a reputable public official in whose favor the presumption of regularity in the performance of official duties must be applied. Appellant further alleges that the findings of Dr. Dyquiangco and the testimony of Pedro Salufrania do not tally. Suffice it to say that the Court finds no inconsistencies between the findings of Dr. Dyquiangco and Pedro Salufrania's testimony. Both are consistent on material points. Thus, the Court sees no reason to disturb the conclusions reached by the trial court insofar as their credibility and the appellant's guilt are concerned. Appellant's third assignment of error alleges that the trial court erred in discrediting his evidence simply because the testimonies of the defense witnesses were consistent on material points. Moreover, there is no showing, according to the appellant, that said testimonies were rehearsed so as to dovetail with each other. This contention is without merit. The Court notes, first of all, that appellant did not even bother to discuss his defense in order to refute the massive evidence against him. This is tantamount to an admission that he could not adequately support his version of Marciana Abuyo's death. The trial court's reasons for rejecting the defense version, as hereunder quoted, are tenable and sound. Thus On the contrary, the testimonies of defense witnesses Geronimo Villan, Angeles Liling Balce and the accused Filomeno Salufrania suspiciously dove-tailed in every detail as to when, where and how .Marciana Abuyo died at 6:00 o'clock in the morning of 4 December 1974, in their house at sitio Kapagisahan Tigbinan Labo, Carnarines Norte, of stomach pain. On these points, these witnesses and the accused made statements which seemed to be very fresh and clear in their minds, despite the lapse of four long years. Their exact and uniform declarations on these points, their phenomenal recollections, without sufficient special or uncommon reason to recall, rendered their testimonies unconvincing. If at all, their testimonies appeared
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to this Court to be an eleventh hour concoction. And, as defense witnesses, after observing them and their declarations on the witness stand, they appeared to the Court to be untruthful and unreliable. For, despite the synchronization of time when, the place where and how the incidence happened, their testimonies on other material points revealed their tendency to exaggerate and their propensity to falsehood, thus-Aside from the accused Filomeno Salufrania, there are three other witnesses for the defense Geronimo Villan Angeles Liling Balce and Juanita Bragais. There is nothing in the testimony of Juanito Bragais because he did not witness how and when Marciana Abuyo died. Francisco Repuya, who was also alleged by Filomeno Salufrania to be present when Marciana Abuyo died, did not testify. Accused Filomeno Salufrania never claimed that he summoned for Angeles Liling Balce. According to him Angeles Liling Balce was not present during the moment of death of Marciana Abuyo, for she was fetched by him only after the death of his wife. Logically, therefore, there is no basis for the presentation of Angeles Liling Balce that she was present during the moment of death of Marciana Abuyo. She was merely play-acting. Geronimo Villan who claimed he passed-by the house of Filomeno Salufrania and saw the latter boiling water with "ikmo" and garlic, as medicine for his wife Marciana Abuyo, who was about to give birth was discredited by accused himself who declared he was merely boiling water for the hot drink of his wife, who was suferring from her old stomach ailment. In like manner, witness Geronimo Villan discredited the accused Filomeno Salufrania, about the presence of Francisco Repuya, who allegedly alternated with Geronimo Villan in applying the native treatments of 'hilot' and 'bantil' to Marciana Abuyo, when throughout his testimony he (Geronimo Villan) never mentioned the presence of Francisco Repuya. After closely observing defense witnesses Geronimo Villan and Angeles Liling Balce, this Court is convinced that their testimonies and accounts of the incident are fabricated, untruthful and not worth of credence. Certainly, they were not present immediately before and during the moment of death of Marciana Abuyo. ... Added to these, there is one scandalous circumstance, which to the mind of this Court, betrays the guilty conscience of the accused. If there was nothing revealing in the face of the deceased Marciana Abuyo, why was her face covered by a piece of cloth by the accused. ... Trial judges are in the best position to ascertain the truth and detect falsehoods in the testimony of witnesses. This Court will normally not disturb the findings of the trial court on the credibility of witnesses, in view of its advantage in observing first hand their demeanor in giving their testimony. 16 Such rule applies in the present case. Lastly, appellant alleges that, assuming he indeed killed his wife, there is no evidence to show that he had the intention to cause an abortion. In this contention, appellant is correct. He should not be held guilty of the complex crime of Parricide with Intentional Abortion but of the complex crime of Parricide with Unintentional Abortion. The elements of Unintentional Abortion are as follows: 1. That there is a pregnant woman. 2. That violence is used upon such pregnant woman without intending an abortion.

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3. That the violence is intentionally exerted. 4. That as a result of the violence the foetus dies, either in the womb or after having been expelled therefrom.17 The Solicitor General's brief makes it appear that appellant intended to cause an abortion because he boxed his pregnant wife on the stomach which caused her to fall and then strangled her. We find that appellant's intent to cause an abortion has not been sufficiently established. Mere boxing on the stomach, taken together with the immediate strangling of the victim in a fight, is not sufficient proof to show an intent to cause an abortion. In fact, appellant must have merely intended to kill the victim but not necessarily to cause an abortion. The evidence on record, therefore, establishes beyond reasonable doubt that accused Filomeno Salufrania committed and should be held liable for the complex crime of parricide with unintentional abortion. The abortion, in this case, was caused by the same violence that caused the death of Marciana Abuyo, such violence being voluntarily exerted by the herein accused upon his victim. It has also been clearly established (a) that Marciana Abuyo was seven (7) to eight (8) months pregnant when she was killed; (b) that violence was voluntarily exerted upon her by her husband accused; and (c) that, as a result of said violence, Marciana Abuyo died together with the foetus in her womb. In this afternoon, Article 48 of the Revised Penal Code states that the accused should be punished with the penalty corresponding to the more serious came of parricide, to be imposed in its maximum period which is death. However, by reason of the 1987 Constitution which has abolished the death penalty, appellant should be sentenced to suffer the penalty of reclusion perpetua. WHEREFORE, as modified, the judgment appealed from is AFFIRMED. Accused-appellant is hereby sentenced to suffer the penalty of reclusion perpetua. The indemnity of P12,000. 00 awarded to the heirs of the deceased Marciana Abuyo is increased to P30,000.00 in line with the recent decisions of the Court. With costs against the appellant, SO ORDERED.

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RAPE Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 79011 February 15, 1990 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. SEMION MANGALINO y LUMANOG, accused-appellant. SARMIENTO, J.: This is an appeal from the decision of the Regional Trial Court of Manila, 1 in which the accused was convicted of statutory rape under Article 335, paragraph 3 of the Revised Penal Code, 2 and sentenced to suffer the penalty ofreclusion perpetua and to pay the offended parties the sum of P50,000.00 as moral damages. The complaint signed by the father of the victim, Tomas Carlos y Valente states: xxx xxx xxx That on or about March 7, 1984, in the city of Manila, Philippines, the said accused did then and there wilfully, unlawfully and feloniously lie with and have carnal knowledge of the undersigned complainant's daughter Marichelle, a minor, 6 years of age, against her will and consent. Contrary to Law. The following facts are fully supported by the evidence on record, mainly the testimonies of the victim herself and her mother, Bernardine, Dr. Roberto V. Garcia, and Staff Sergeant Mario Oser, as well as the testimonies of the witnesses for the defense Ramil las Dulce, Linda Ayroso, and the accused himself. At about 10 or 11 o'clock in the morning of March 7, 1984, Marichelle Carlos, 6 years old and a Grade I pupil at the Moises Salvador Elementary School, Manila, was playing "takbuhan" alone at the first level (ground floor) of the two-story apartment of the accused, Semion Mangalino, 53, married to 55-year old Laura Gasmin, childless, a security guard by occupation, and residing at 1597-D Honradez Street, Sampaloc, Manila. 3 At the time of the incident, Laura was in Balayan, Batangas, having left the day before the incident. The accused and Marichelle's parents (Tomas and Bernardine Carlos) are neighbors, their respective rented apartments being almost opposite each other. During the morning of March 7, 1984, Ramil las Dulce, a 16-year old high school student occupying the second floor of the apartment, for free and free board, too, a grandson of the
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accused (his mother, Edita Onadia who lived with him upstairs, being an adopted daughter of the accused), and Laura's nephew, Armando Ayroso, were allegedly playing chess 4 in the sala of the apartment. Ramil, a witness for the defense, testified that he did not hear or see the accused calling out to Marichelle and motioning her to go inside his bedroom or "sleeping quarters" at one end of the sala of the ground floor, opposite the kitchen. Once inside the bedroom, the accused handed the girl a two peso bill (P2.00) 5 and told her not to tell anybody about his calling her to his bedroom. The girl assented. 6 The accused then laid Marichelle down, removed her jogging pants, and placed them beside her feet. 7 He kissed her and fondled her infantile breasts. 8 He inserted his finger into the private part of the victim, 9 and then forcibly and repeatedly introduced his sexual organ into her undeveloped genitalia, but in vain. 10 Meanwhile, the victim's mother, Bernardine Carlos, 27, and a plain housewife, was looking for her daughter, who should be leaving for school by that time. She was informed by her sister Agnes, who was living next door, that the adopted daughter of the accused, Cielito, had told her that Marichelle was in their apartment. 11 Immediately, Michael, Agnes' four-year old son, was dispatched to fetch Marichelle. Hearing the call of Michael, the victim put on her garments, and on the way home noticed that her jogging pants were wet. Upon reaching her house, Marichelle narrated to her mother what had happened, saying, "Si Mang Semion nilagay ang daliri niya sa pikpik ko," and "yong titi ni Mang Semion nilagay sa pikpik ko." 12 At about 2:30 that same day, an enraged Bernardine submitted her daughter to a physical and genital examination, 13 the results of which National Bureau of Investigation (NBI) Medico Legal Officer Roberto V. Garcia certified as follows: No evidence (or) sign of any extragenital physical injury noted on the body of the subject at the time of examination. Hymen, intact and its orifice, narrow. Sign of recent genital trauma, present. Dr. Garcia opined that the vestibular mucosa contusion could have been caused by a hard object like an erected penis and such bruises at such part of the girl's vagina if caused by an erected penis would be an indication of an unsuccessful penetration. He discounted the probability of an accident, like bumping at an edge of a chair, or any blunt object, since there was no contusion of the labia. 14 The confrontation between the victim and the accused took place when Staff Sergeant Mario Oser of the Waterfront Unit, Reaction Strike Force, Philippine Constabulary Metropolitan Command (P.C. Metrocom), who conducted the initial investigation, invited the accused to the P.C. Headquarters. There, Marichelle Identified Semion Mangalino as the man who had abused her.

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The accused vehemently denied having ever abused Marichelle. He argued that the bruises in the complainant's vestibular mucosa may have been self-inflicted. Marichelle, who was constantly running about, might have bumped her pelvis against a chair, which explained the absence of signs of contusions in the labia. Curiously, the young victim candidly testified that she felt no pain when the accused was allegedly trying to insert his penis into her vagina. She did not cry in pain nor shout for help when she was being abused. 15 Before the Court, the appellant assigned four errors in his brief which he claims the trial court committed, to wit: ASSIGNMENT OF ERRORS ERROR I THE TRIAL COURT ERRED IN NOT FINDING THAT, CONSIDERING THE PLACE, THE TIME, AND THE PRESENCE OF SO MANY PEOPLE WITHIN THE IMMEDIATE VICINITY WHERE THE ALLEGED CRIME WAS COMMITTED, THE ACCUSED COULD NOT HAVE SEXUALLY ABUSED MARICHELLE G. CARLOS, THE COMPLAINING WITNESS HEREIN; ERROR II THE TRIAL COURT ERRED IN NOT FINDING THAT THE BRUISES THROUGH THE VESTIBULAR MUCOSA OF THE PRIVATE PART OF MARICHELLE G. CARLOS IS THE RESULT OF AN ACCIDENT, CONSIDERING THAT ON MARCH 7,1984, SHE WAS IN THE GROUND FLOOR OF THE APARTMENT OF HEREIN ACCUSED PLAYING RUNNING AROUND "TAKBUHAN"; ERROR III THE TRIAL COURT ERRED IN ORDERING THE ACCUSED TO PAY THE OFFENDED PARTIES, MARICHELLE G. CARLOS AND HER PARENTS, TOMAS CARLOS AND BERNARDINE GANLAC CARLOS, THE SUM OF P50,000.00 AS AND FOR DAMAGES; ERROR IV THE TRIAL COURT ERRED IN FINDING THAT THE ACCUSED IS GUILTY OF THE CHARGE ALLEGED IN THE INFORMATION, INSTEAD OF ACQUITTING HIM WITH COSTS DE OFFICIO. 16 The defense vigorously argues against the probability of the rape having been committed on two points: 1) The commission of the crime was impossible, taking place as claimed, in broad daylight, and 2) there were at least eight persons including the accused and the complainant on the ground floor where the rape was supposedly consummated.

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The commission of the crime, submits the defense, was impossible, considering that it was allegedly committed at noontime, which would have readily exposed the act of rape to anyone glancing in the direction of the place where the suspect was abusing the victim. On the second point, it is contended that the rape could not have been accomplished with so many persons present in the apartment. As it was, Ramil and Armando were playing chess near the front door of the apartment. Also, Linda Ayroso, 29, married to Armando, and a housewife, was washing laundry in the kitchen. Furthermore, the accused was cooking lunch also in the kitchen, and so could not have flitted from the kitchen to his room to execute his evil design without anyone noticing his absence. The defense brings to our attention the physical layout of the apartment of the accused. The place where the alleged sexual abuse took place was not even a room, he asserts. The apartment had neither a door nor walls, and what divided the so-called room from the living room was a wooden folding divider which was full of holes, "butas-butas." 17 Finally, the accused assails the lower court's slapping of damages based on the claims of prosecution witnesses of suffering mental anguish, moral shock, and a "besmirched reputation." Since he did not commit the offense attributed to him, the award of P50,000.00 as moral damages is unwarranted. Consequently, he prays he must be exculpated. We deny the appeal except the amount of the award of damages which we reduce to P20,000.00 conformably to prevailing jurisprudence. We rule that statutory rape had been committed beyond the shadow of a doubt. The gravamen of the offense of statutory rape as provided in Article 335, paragraph 3 of the Revised Penal Code is the carnal knowledge of a woman below 12 years of age. 18 Marichelle, a little over 6 years of age at the time, was raped. Beyond that, proof of intimidation or force used on her, or lack of it, is immaterial. The findings of Dr. Roberto V. Garcia, the NBI Medico Legal officer, who testified for the People, conclude that rape could have been perpetrated. To reiterate, he certified the existence of indications of recent genital trauma.Under normal condition, the color of the vestibular mucosa is pinkish. The doctor found the vestibular mucosa of the victim to be dark red. 19 The forcible attempt of an erected penis to have complete penetration caused the 3 1/2-centimeter contusion prior to the hymen. The government doctor further discounted the probability of an accident, such as bumping the edge of a chair, or violent contact with a blunt object, as there was no contusion of the labia. The penile-vaginal contact without penetration was due to the one- centimeter diameter opening of Marichelle's hymen. Usually, the average adult's hymen measures 2.8 to 3 centimeters in diameter, making it compatible to, or easily penetrable by, an average-size penis. The victim being of a tender age, the penetration could go only as deep as the labia. 20 In any case, the Court has consistently held that for rape to be committed, full penetration is not required. It is enough that there is proof of entrance of the male organ within the labia or pudendum of the female organ. 21 Indeed, even the slightest penetration is sufficient to consummate the crime of rape.
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The relationship between the offender and the victim as neighbors remains unrebutted. This relationship has an important bearing on the medico-legal finding, because it explains the absence of visible signs of physical injuries.22 The close relationship of Semion Mangalino to Marichelle as a nearby neighbor of the Carlos family and the degree of respect that Semion may have had in Marichelle's life, helps explain why physical force was not employed. The mere size of the accused, a robust security guard, and 163 centimeters (five feet and four inches) in height, could have easily immobilized the victim who was at that time only one hundred eight centimeters tall and weighing 31.818 kilos (70 lbs.) The attempt to discredit the prosecution's version as shown by the fact that Marichelle did not cry out or struggle against her attacker deserves scant consideration. The absence of hymenal laceration adequately explains why Marichelle did not feel any pain during the attempted sexual intercourse. Why would she struggle, when she did not even know that her chastity was being violated? As her mother testified, it was only upon realizing that she had been defiled did her daughter cry. From then on, she became "matatakutin' and "hindi na kumakain", she became nervous and had no appetite for food symptoms of a state of anguish. The simplicity of the testimony of Marichelle convinces us that she was telling the truth about her having been sexually abused. xxx xxx xxx q (Asst. Fiscal Mercedes C. Salvania) Now, while you were playing will you tell this Honorable court where did you go after that? Witness (Marichelle) a While I was playing Mang Simeon called me madam. Court q Why, were you playing alone? Witness a Yes, your Honor. Fiscal Salvania q What were you playing? Witness a I was running around "takbuhan" madam. Court

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q Were you running outside or inside the house of the accused Witness a Inside the house of Semion Mangalino, your Honor. Fiscal Salvania q While you were playing inside the house of Semion Mangalino he called for you? Witness a Yes, madam. q Why did he called (sic) for you? Witness a He called me and told me to go to his bedroom madam. Fiscal Salvania q When you were asked to go to his bedroom, did he give you anything? Witness a Yes madam. q What did he give to you? a He gave me P2.00, madam. Court q Did you accept that P2.00? Witness a Yes, your Honor. Fiscal Salvania q When you were asked to go inside the higaan of Semion Mangalino, did you go?

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Witness a Yes, madam. q Now, when you went inside the higaan, what did he do to you? a He inserted one of his fingers in my private part madam. Fiscal Salvania q You stated that you were wearing jogging pant? Witness a Yes, madam. q What happened to your jogging pant? a He first removed my jogging pant, madam. q After removing your jogging pant, did he removed (sic) anything in his clothes? a He did not removed (sic) anything in his clothes madam. Court q Beside the jogging pant you are (sic) wearing, were you also wearing a panty? Witness a Yes, your Honor. Fiscal Salvania q What happen(ed) to your panty, did he remove? Witness a He also removed my panty madam. Fiscal Salvania q What did he do with his finger? Court
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She said he inserted. q Was one of the fingers of the accused inserted in your private part? Witness a Yes, your Honor. q What did he do? a He kissed me your Honor. q Where did he kissed (sic) you? a In my breast your Honor. Fiscal Salvania q Did he remove your T-shirt? Witness a No madam. xxx xxx xxx Court q Did Semion Mangalino removed (sic) his pant? Witness a He did not removed (sic) his pant your Honor. xxx xxx xxx q Do you know what is penis? a Yes, your Honor. q Did the accused put-out his penis while he was inserting his finger in your private part and kissing you in the breast? a He put-out his penis while he was kissing and his one fingers (sic) inserted in my private part, your Honor. q What did he do with his penis?
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a He is inserting his penis in my private part, your Honor. Court q Was the accused able to insert his penis into your private part? Witness a He was not able, your Honor. xxx xxx xxx q How do you feel or did you feel pain while the accused was trying to insert his penis into your private part? Witness a I did not feel anything, your Honor. q Did you feel pain? a I did not feel anything painful, your Honor. q Did you saw (sic) the penis of Semion Mangalino? a Yes, your Honor. q What was your position when Semion Mangalino was trying to insert his penis into your private part? Witness a I was lying down, your Honor. Court q Who put you lay (sic) down, was it yourself or what? Witness a Semion Mangalino, your Honor. q Did you not cry? a I did not cry, your Honor. q Did you shout?
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a I did not shout, your Honor. q Why, were there persons inside the house while Semion Mangalino was doing all these things to you? a There were no other persons except myself and Semion Mangalino your Honor. 23 Marichelle was a Grade I pupil when she was violated. She was in Grade II when she took the witness stand. In view of her very tender age and her little formal schooling, it is inconceivable for Marichelle to concoct a serious charge of rape, and to narrate, in unhesitating and simple terms, that she had been asked by the offender to go inside the room; that she was laid down after the accused had given her P2.00; that he removed her jogging pants and panty; that the accused kissed her and caressed her breasts, that "Mang Semion" inserted a finger into her genital, and later his sexual organ. At age 6, Marichelle would have been one of those "babes and sucklings" from whose mouths words of praise should have been perfected, but alas, she was instead compelled to relate in the presence of people, some of them complete strangers, in the police precinct and in court, her tragic story. The heart of the matter is the violation of a child's incapacity to discern evil from good. As the behavior of the victim towards the accused during the commission of the crime and her testimony before police officers and in the court indicate, she had no awareness of the wrongfulness of the action of the accused who was old enough to be her grandfather. Her willingness to lie down on and accept the P2.00 given her by the accused, whom she looked up to as an elder person, a neighbor, and a friend of her family, indicate not naivete, but the absolute trust and confidence of the very young in an older person. She was incapable of reading malice or evil in his intentions. It is likely that it was only when she saw how distraught her mother was at her telling of her story and the flurry of police and judicial activity stirred up by her narration that her young and innocent mind was violently exposed to the reality of the existence of evil in the hearts of men. The moment of truth, dawning so violently upon young and innocent minds is contemptible. The older persons in the community should set themselves up as models of proper decorum and high moral purpose for young children; it is they who should guide the young, teach them, and nurture them in the way of the righteous. A 53-year-old man who instead corrupts and violates the purity and dignity of a minor is morally depraved and should be punished to the limits of the law. It is even more difficult to conceive of Mrs. Bernardine Carlos trumping up a charge of the rape of her daughter and subject herself and her daughter to humiliation, to fear, and anxiety, and community censure that she and her daughter will have to bear for the rest of their lives, 24 simply in consideration of P50,000.00, the amount asked for in moral damages. The trial court's findings of facts which rely on the credibility of witnesses are entitled to respect, if not finality. A painstaking examination and review of the records of the case yield no fact or circumstance that would have contradicted the findings of the trial court. The alleged inconsistencies refer to minor details and do not at all touch upon the basic aspects of the who, the how, and the when of the crime committed. Minor discrepancies in the testimonies
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of Marichelle and her mother are but natural, and even enhance their credibility as witnesses because these discrepancies indicate that the responses given were honest and unrehearsed. 25 In appreciation of the testimony of the victim, due regard must be accorded to her tender age. The contention of the accused that he never left the kitchen is flawed. The facility of a quick tap to his room can not be discounted considering that kitchen where he was supposed to have been cooking was only a few meters away. That the presence of Ramil and Armando who were allegedly playing chess in the kitchen made the commission of the crime impossible, even if were true, falls flat in the face of the game of chess being one that requires utmost concentration; that being so, it is logical for both players to be concentrating on the game when the accused lured Marichelle into the room. We hold that when Ramil, Armando, and Linda were engrossed in what they were doing, that the accused surreptitiously enticed Marichelle into his higaan, and that the short distance between the kitchen and the "room" a mere distance of 5 to 6 meters is no obstacle to the satiation of his carnal lusting after the child. The accused claims it was impossible for him to have raped the victim in the presence of other people, more so, in a place without privacy. We do not agree. Rape was in fact committed. It is quite possible for an experienced man, like the accused, to consummate rape in just one minute, without attracting the attention of the people inside the apartment. 26 Marichelle's complete innocence may have facilitated the perpetration of the clime, and the divider, although "butasbutas," was sufficient to conceal the commission of the bestial act. In several instances, this Court held that rape can be committed even in places where people congregate: in parks, along the road side, within school premises, and even inside a house where there are other occupants. 27The apartment of the accused was no exception. Lust is no respecter of time or place. In fine, we hold that the trial court did not commit any reversible error in finding the accusedappellant guilty beyond reasonable doubt of the crime of statutory rape. No amount of money can soothe the pain and anguish suffered by a victim of rape and her family. Still, we cannot impose the damages of P50,000.00 on the accused. As stated earlier, we reduce the amount to P20,000.00. WHEREFORE, the appealled decision is AFFIRMED with the MODIFICATION above indicated. Costs against the accused-appellant. SO ORDERED.

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Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 84728 April 26, 1991 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. CESAR ATENTO accused-appellant. CRUZ, J.:p Asked how she felt while she was being raped, the complainant replied: "Masarap." The trial judge believed her but just the same convicted the accused-appellant. The case is now before us. The complainant is Glenda Aringo, who was sixteen years old at the time of the alleged offense. She is the neighbor of Cesar Atento, the herein accused-appellant, a 39-year old store-keeper with a wife and eight children. Her claim is that Atento raped her five separate times, the first sometime in April 1986. She says that on that first occasion she went to Atento's store in Barangay 18, Minoro, Cabagan, in Legazpi City to buy bread. Her parents were at work and Atento was alone in his house except for his three-year old daughter. Glenda claims Atento cajoled her into coming inside the house and then took her downstairs, where he succeeded in deflowering her. She says her maiden head ached and bled. Afterwards, he gave her P5.00. Glenda speaks of four other times when he raped her. It was later (presumably because her hymen had healed) that she felt tickled by his manhood and described the act of coitus as "masarap." 1 The girl says she never told anybody about Atento's attacks on her because he had threatened her life. But she could not conceal her condition for long and after five months had to admit she was pregnant. She revealed the accused-appellant as the father of the foetus in her womb. The child was delivered on December 27, 1987, and christened Hubert Buendia Aringo. Atento denies the charge against him, saying it was pure harassment concocted by a relative of the girl who wanted to eject him from the land where his house was erected. Insisting that Glenda was a girl of loose morals, he says he had twice seen her in sexual congress with a man and that she had once offered her body to his thirteen year old son for a fee of P5.00. Glenda's description of the act of coitus as pleasurable would have destroyed the whole case against Atento but for one singular significant fact. The girl is a mental retardate. Ascendo Belmonte, a clinical psychologist at Don Susano Rodriguez Memorial Mental Hospital, subjected the girl to a series of intelligence tests, to wit, the Wecslar adult intelligence scale,
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revised beta exam, standard progressive matrices, and the Bender visual motor gestalt test, with the following findings: Glenda B. Aringo, who was born on June 18, 1970, is INTER ALIA with an intellectual capacity between the ages of nine (9) and twelve (12) years. As such, her intellectual functioning is within the mentally defective level. Her fund of information is inadequate, her judgment is unsound, her thinking and working capacity is poor. She is unable to distinguish essential from non-essential details. Her vocabulary is limited. Her capacity for her perceptual processes is unsatisfactory. She lacks the capacity for abstracting and synthesizing concepts. However, in the midst of all these, Glenda was found capable of telling the truth. 2 Benita Aringo, Glenda's mother, testified that her daughter reached only third grade and did not like to continue studying, preferring to play with children younger than she, even when she was already pregnant. After delivering her child, she would often leave its care to Benita, and play marbles with the children rather than feed her baby. Another relative, Caridad Aringo, testified that Glenda had the mentality of a 12-year old and was fond of rubber bands and playing cards. The Court finds this to be the reason why, while a rape victim with normal intelligence, would have said that the attack on her caused her much physical pain and mental agony, Glenda naively declared that Atento's sexual organ in hers gave her much pleasure. It is worth observing that Glenda's child was born on December, nine months after her rape in April, and that, according to the trial judge, there was a remarkable resemblance between Atento and the boy. Article 335 of the Revised Penal Code provides: Art. 335. When and how rape committed. Rape is committed by having carnal knowledge of a woman under any of the following circumstances: 1. By using force or intimidation; 2. When the woman is deprived of reason or otherwise unconscious and 3. When the woman is under twelve years of age, even though neither of the circumstances mentioned in the two next preceding paragraphs shall be present. xxx xxx xxx It has not been clearly established that Atento employed force or threat against Glenda to make her submit to his lust. Nevertheless, there is no question that Atento is guilty of rape upon Glenda under paragraph 2, because the girl was deprived of reason. Alternatively, he is liable under paragraph 3, because his victim had the mentality of a girl less than twelve years old at the time she was raped. In People v. Atutubo, 3 this Court held:

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It is not necessary under Article 335 for the culprit to actually deprive the victim of reason prior to the rape, as by the administration of drugs or by some other illicit method. Ms provision also applies to cases where the woman has been earlier deprived of reason by other causes, as when she is congenitally retarded or has previously suffered some traumatic experience that has lowered her mental capacity. In such situations, the victim is in the same category as a child below 12 years of age for lacking the necessary will to object to the attacker's lewd intentions. In People v. Palma, 4 where a 14-year old mental retardate was another rape victim, we held that: The crime committed by Palma is rape under Article 335(2) of the Revised Penal Code. Copulation with a woman known to be mentally incapable of giving even an imperfect consent is rape. Physical intimidation need not precede sexual intercourse considering the age, mental abnormality and deficiency of the complainant. So also in People v. Sunga, 5 where the offended party was 23 years old with the mentality of a child about 8 to 9 years of age: Because of her mental condition, complainant is incapable of giving consent to the sexual intercourse. She is in the same class as a woman deprived of reason or otherwise unconscious. Appellant therefore committed rape in having sexual intercourse with her. In his authoritative work on Criminal Law, Chief Justice Aquino explains Paragraph 2 as follows. 6 . . . in the rape of a woman deprived of reason or unconscious, the victim has no will. The absence of will determines the existence of the rape. Such lack of will may exist not only when the victim is unconscious or totally deprived of reason, but also when she is suffering some mental deficiency impairing her reason or free will. In that case, it is not necessary that she should offer real opposition or constant resistance to the sexual intercourse. Carnal knowledge of a woman so weak in intellect as to be incapable of legal consent constitutes rape. Where the offended woman was feeble-minded, sickly and almost an idiot, sexual intercourse with her is rape. Her failure to offer resistance to the act did not mean consent for she was incapable of giving any rational consent. The deprivation of reason need not be complete. Mental abnormality or deficiency is enough. Cohabitation with a feeble-minded, idiotic woman is rape. The trial court, however, held Atento guilty of rape under Paragraph 3, citing People v. Asturias, 7 where it was held: Assuming that complainant Vilma Ortega voluntarily submitted herself to the bestial desire of appellant still the crime committed is rape under paragraph 3 of Article 335 of the Revised Penal Code. This is so even if the circumstances of force and intimidation, or of the victim being deprived of reason or otherwise unconscious are absent. The victim has the mentality of a child below seven years old. If sexual intercourse with a victim under twelve years of age is

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rape, then it should follow that carnal knowledge with a seventeen-year old girl whose mental capacity is that of a seven year old child would constitute rape. In coming to his conclusion, Judge Gregorio A. Consulta declared: . . . Given the low I.Q. of Glenda, it is impossible to believe that she could have fabricated her charges against the accused. She lacks the gift of articulation and inventiveness. She could not even explain with ease the meaning of rape, a term which she learned in the community. Even with intensive coaching, assuming that happened, on the witness stand where she was alone, it would show with her testimony falling into irretrievable pieces. But that did not happen. She proceeded, though with much difficulty, with childlike innocence. A smart and perspicacious person would hesitate to describe to the Court her sexual experiences as "tickling" and "masarap" for that would only elicit disdain and laughter. Only a simple-minded artless child would do it. And Glenda falls within the level of a 9-12 year old child. And Glenda was telling the truth! There is no doubt that when she submitted herself to the accused later for subsequent intercourses, she was dominated more by fear and ignorance than by reason. In any event, whether under paragraph 2 or under paragraph 3 of Article 335 of the Revised Penal Code, the accused-appellant deserves to be punished for the rape of Glenda Azingo. The trial court found the accused-appellant guilty of rape as charged, meaning that he raped the victim five times, but we do not agree that the other four rapes have been conclusively proven. Otherwise, he would have to be punished for five separate rapes. Except for this and the civil indemnity, which is increased from P20,000.00 to P30,000.00, we agree with the sentence imposing on him the penalty of reclusion perpetua, the obligation to acknowledge and support Hubert Buendia Aringo as his own spurious child, and to pay the costs. WHEREFORE, the appealed judgment is AFFIRMED as above modified. It is so ordered.

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Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 129433 March 30, 2000

PEOPLE OF THE PHILIPPINES, plaintiff, vs. PRIMO CAMPUHAN Y BELLO accused. BELLOSILLO, J.: On 3 April 1990 this Court in People v. Orita 1 finally did away with frustrated rape 2 and allowed only attempted rape and consummated rape to remain in our statute books. The instant case lurks at the threshold of another emasculation of the stages of execution of rape by considering almost every attempt at sexual violation of a woman as consummated rape, that is, if the contrary view were to be adopted. The danger there is that that concept may send the wrong signal to every roaming lothario, whenever the opportunity bares itself, to better intrude with climactic gusto, sans any restraint, since after all any attempted fornication would be considered consummated rape and punished as such. A mere strafing of the citadel of passion would then be considered a deadly fait accompli, which is absurd. In Orita we held that rape was consummated from the moment the offender had carnal knowledge of the victim since by it he attained his objective. All the elements of the offense were already present and nothing more was left for the offender to do, having performed all the acts necessary to produce the crime and accomplish it. We ruled then that perfect penetration was not essential; any penetration of the female organ by the male organ, however slight, was sufficient. The Court further held that entry of the labia or lips of the female organ, even without rupture of the hymen or laceration of the vagina, was sufficient to warrant conviction for consummated rape. We distinguished consummated rape from attempted rape where there was no penetration of the female organ because not all acts of execution were performed as the offender merely commenced the commission of a felony directly by overt acts. 3 The inference that may be derived therefrom is that complete or full penetration of the vagina is not required for rape to be consummated. Any penetration, in whatever degree, is enough to raise the crime to its consummated stage. But the Court in Orita clarified the concept of penetration in rape by requiring entry into the labia or lips of the female organ, even if there be no rupture of the hymen or laceration of the vagina, to warrant a conviction for consummated rape. While the entry of the penis into the lips of the female organ was considered synonymous with mere touching of the external genitalia, e.g., labia majora, labia minora, etc.,4 the crucial doctrinal bottom line is that touching must be inextricably viewed in light of, in relation to, or as an essential part of, the process of penile penetration, and not just mere touching in the ordinary sense. In other words, the touching must be tacked to the penetration itself. The importance of the requirement of penetration, however slight, cannot be

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gainsaid because where entry into the labia or the lips of the female genitalia has not been established, the crime committed amounts merely to attempted rape. Verily, this should be the indicium of the Court in determining whether rape has been committed either in its attempted or in its consummated stage; otherwise, no substantial distinction would exist between the two, despite the fact that penalty-wise, this distinction, threadbare as it may seem, irrevocably spells the difference between life and death for the accused a reclusive life that is not even perpetua but only temporal on one hand, and the ultimate extermination of life on the other. And, arguing on another level, if the case at bar cannot be deemed attempted but consummated rape, what then would constitute attempted rape? Must our field of choice be thus limited only to consummated rape and acts of lasciviousness since attempted rape would no longer be possible in light of the view of those who disagree with this ponencia? On 27 May 1997 Primo Campuhan y Bello was found guilty of statutory rape and sentenced by the court a quo to the extreme penalty of death, 5 hence this case before us on automatic review under Art. 335 of the Revised Penal Code as amended by RA 7659. 6 As may be culled from the evidence on record, on 25 April 1996, at around 4 o'clock in the afternoon, Ma. Corazon P. Pamintuan, mother of four (4)-year old Crysthel Pamintuan, went down from the second floor of their house to prepare Milo chocolate drinks for her two (2) children. At the ground floor she met Primo Campuhan who was then busy filling small plastic bags with water to be frozen into ice in the freezer located at the second floor. Primo was a helper of Conrado Plata Jr., brother of Corazon. As Corazon was busy preparing the drinks, she heard one of her daughters cry, "Ayo'ko, ayo'ko!" 7 prompting Corazon to rush upstairs. Thereupon, she saw Primo Campuhan inside her children's room kneeling before Crysthel whose pajamas or "jogging pants" and panty were already removed, while his short pants were down to his knees. According to Corazon, Primo was forcing his penis into Crysthel's vagina. Horrified, she cursed the accused, "P - t - ng ina mo, anak ko iyan!" and boxed him several times. He evaded her blows and pulled up his pants. He pushed Corazon aside when she tried to block his path. Corazon then ran out and shouted for help thus prompting her brother, a cousin and an uncle who were living within their compound, to chase the accused. 8 Seconds later, Primo was apprehended by those who answered Corazon's call for help. They held the accused at the back of their compound until they were advised by their neighbors to call the barangay officials instead of detaining him for his misdeed. Physical examination of the victim yielded negative results. No evident sign of extragenital physical injury was noted by the medico-legal officer on Crysthel's body as her hymen was intact and its orifice was only 0.5 cm. in diameter. Primo Campuhan had only himself for a witness in his defense. He maintained his innocence and assailed the charge as a mere scheme of Crysthel's mother who allegedly harbored ill will against him for his refusal to run an errand for her. 9 He asserted that in truth Crysthel was in a playing mood and wanted to ride on his back when she suddenly pulled him down causing both of them to fall down on the floor. It was in this fallen position that Corazon chanced upon them and became hysterical. Corazon slapped him and accused him of raping her child. He got mad but restrained himself from hitting back when he realized she was a woman. Corazon called for help from her brothers to stop him as he ran down from the second floor.

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Vicente, Corazon's brother, timely responded to her call for help and accosted Primo. Vicente punched him and threatened to kill him. Upon hearing the threat, Primo immediately ran towards the house of Conrado Plata but Vicente followed him there. Primo pleaded for a chance to explain as he reasoned out that the accusation was not true. But Vicente kicked him instead. When Primo saw Vicente holding a piece of lead pipe, Primo raised his hands and turned his back to avoid the blow. At this moment, the relatives and neighbors of Vicente prevailed upon him to take Primo to the barangay hall instead, and not to maul or possibly kill him. Although Primo Campuhan insisted on his innocence, the trial court on 27 May 1997 found him guilty of statutory rape, sentenced him to the extreme penalty of death, and ordered him to pay his victim P50,000.00 for moral damages, P25,000.00 for exemplary damages, and the costs. The accused Primo Campuhan seriously assails the credibility of Ma. Corazon Pamintuan. He argues that her narration should not be given any weight or credence since it was punctured with implausible statements and improbabilities so inconsistent with human nature and experience. He claims that it was truly inconceivable for him to commit the rape considering that Crysthel's younger sister was also in the room playing while Corazon was just downstairs preparing Milo drinks for her daughters. Their presence alone as possible eyewitnesses and the fact that the episode happened within the family compound where a call for assistance could easily be heard and responded to, would have been enough to deter him from committing the crime. Besides, the door of the room was wide open for anybody to see what could be taking place inside. Primo insists that it was almost inconceivable that Corazon could give such a vivid description of the alleged sexual contact when from where she stood she could not have possibly seen the alleged touching of the sexual organs of the accused and his victim. He asserts that the absence of any external signs of physical injuries or of penetration of Crysthel's private parts more than bolsters his innocence. In convicting the accused, the trial court relied quite heavily on the testimony of Corazon that she saw Primo with his short pants down to his knees kneeling before Crysthel whose pajamas and panty were supposedly "already removed" and that Primo was "forcing his penis into Crysthel's vagina." The gravamen of the offense of statutory rape is carnal knowledge of a woman below twelve (12), as provided in Art. 335, par. (3), of the Revised Penal Code. Crysthel was only four (4) years old when sexually molested, thus raising the penalty, from reclusion perpetua to death, to the single indivisible penalty of death under RA 7659, Sec. 11, the offended party being below seven (7) years old. We have said often enough that in concluding that carnal knowledge took place, full penetration of the vaginal orifice is not an essential ingredient, nor is the rupture of the hymen necessary; the mere touching of the external genitalia by the penis capable of consummating the sexual act is sufficient to constitute carnal knowledge. 10 But the act of touching should be understood here as inherently part of the entry of the penis into the labias of the female organ and not mere touching alone of the mons pubis or the pudendum. In People v. De la Pea 11 we clarified that the decisions finding a case for rape even if the attacker's penis merely touched the external portions of the female genitalia were made in the context of the presence or existence of an erect penis capable of full penetration. Where the accused failed to achieve an erection, had a limp or flaccid penis, or an oversized penis which could not fit into the victim's vagina, the Court nonetheless held that rape was consummated on the basis of the victim's testimony that the accused repeatedly tried, but in vain, to insert his penis
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into her vagina and in all likelihood reached the labia of her pudendum as the victim felt his organ on the lips of her vulva, 12 or that the penis of the accused touched the middle part of her vagina. 13 Thus, touching when applied to rape cases does not simply mean mere epidermal contact, stroking or grazing of organs, a slight brush or a scrape of the penis on the external layer of the victim's vagina, or the mons pubis, as in this case. There must be sufficient and convincing proof that the penis indeed touched the labias or slid into the female organ, and not merely stroked the external surface thereof, for an accused to be convicted of consummated rape. 14 As the labias, which are required to be "touched" by the penis, are by their natural situs or location beneath the mons pubis or the vaginal surface, to touch them with the penis is to attain some degree of penetration beneath the surface, hence, the conclusion that touching the labia majora or the labia minora of the pudendum constitutes consummated rape. The pudendum or vulva is the collective term for the female genital organs that are visible in the perineal area,e.g., mons pubis, labia majora, labia minora, the hymen, the clitoris, the vaginal orifice, etc. The mons pubis is the rounded eminence that becomes hairy after puberty, and is instantly visible within the surface. The next layer is the labia majora or the outer lips of the female organ composed of the outer convex surface and the inner surface. The skin of the outer convex surface is covered with hair follicles and is pigmented, while the inner surface is a thin skin which does not have any hair but has many sebaceous glands. Directly beneath the labia majora is the labia minora. 15 Jurisprudence dictates that the labia majora must be entered for rape to be consummated, 16 and not merely for the penis to stroke the surface of the female organ. Thus, a grazing of the surface of the female organ or touching the mons pubis of the pudendum is not sufficient to constitute consummated rape. Absent any showing of the slightest penetration of the female organ, i.e., touching of either labia of the pudendum by the penis, there can be no consummated rape; at most, it can only be attempted rape, if not acts of lasciviousness. Judicial depiction of consummated rape has not been confined to the oft-quoted "touching of the female organ," 17but has also progressed into being described as "the introduction of the male organ into the labia of the pudendum," 18 or "the bombardment of the drawbridge." 19 But, to our mild, the case at bar merely constitutes a "shelling of the castle of orgasmic potency," or as earlier stated, a "strafing of the citadel of passion. A review of the records clearly discloses that the prosecution utterly failed to discharge its onus of proving that Primo's penis was able to penetrate Crysthel's vagina however slight. Even if we grant arguendo that Corazon witnessed Primo in the act of sexually molesting her daughter, we seriously doubt the veracity of her claim that she saw the inter-genital contact between Primo and Crysthel. When asked what she saw upon entering her children's room Corazon plunged into saying that she saw Primo poking his penis on the vagina of Crysthel without explaining her relative position to them as to enable her to see clearly and sufficiently, in automotive lingo, the contact point. It should be recalled that when Corazon chanced upon Primo and Crysthel, the former was allegedly in a kneeling position, which Corazon described thus: Q: How was Primo holding your daughter? A: (The witness is demonstrating in such a way that the chest of the accused is pinning down the victim, while his right hand is holding his penis and his left hand is spreading the legs of the victim).

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It can reasonably be drawn from the foregoing narration that Primo's kneeling position rendered an unbridled observation impossible. Not even a vantage point from the side of the accused and the victim would have provided Corazon an unobstructed view of Primo's penis supposedly reaching Crysthel's external genitalia, i.e., labia majora, labia minora, hymen, clitoris, etc., since the legs and arms of Primo would have hidden his movements from Corazon's sight, not to discount the fact that Primo's right hand was allegedly holding his penis thereby blocking it from Corazon's view. It is the burden of the prosecution to establish how Corazon could have seen the sexual contact and to shove her account into the permissive sphere of credibility. It is not enough that she claims that she saw what was done to her daughter. It is required that her claim be properly demonstrated to inspire belief. The prosecution failed in this respect, thus we cannot conclude without any taint of serious doubt that inter-genital contact was at all achieved. To hold otherwise would be to resolve the doubt in favor of the prosecution but to run roughshod over the constitutional right of the accused to be presumed innocent. Corazon insists that Primo did not restrain himself from pursuing his wicked intention despite her timely appearance, thus giving her the opportunity to fully witness his beastly act. We are not persuaded. It is inconsistent with man's instinct of self-preservation to remain where he is and persist in satisfying his lust even when he knows fully well that his dastardly acts have already been discovered or witnessed by no less than the mother of his victim. For, the normal behavior or reaction of Primo upon learning of Corazon's presence would have been to pull his pants up to avoid being caught literally with his pants down. The interval, although relatively short, provided more than enough opportunity for Primo not only to desist from but even to conceal his evil design. What appears to be the basis of the conviction of the accused was Crysthel's answer to the question of the court Q: Did the penis of Primo touch your organ? A: Yes, sir. But when asked further whether his penis penetrated her organ, she readily said, "No." Thus Q: But did his penis penetrate your organ? A: No, sir. 20 This testimony alone should dissipate the mist of confusion that enshrouds the question of whether rape in this case was consummated. It has foreclosed the possibility of Primo's penis penetrating her vagina, however slight. Crysthel made a categorical statement denying penetration, 27 obviously induced by a question propounded to her who could not have been aware of the finer distinctions between touching and penetration. Consequently, it is improper and unfair to attach to this reply of a four (4)-year old child, whose vocabulary is yet as underdeveloped as her sex and whose language is bereft of worldly sophistication, an adult interpretation that because the penis of the accused touched her organ there was sexual entry. Nor can it be deduced that in trying to penetrate the victim's organ the penis of the accused
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touched the middle portion of her vagina and entered the labia of her pudendum as the prosecution failed to establish sufficiently that Primo made efforts to penetrate Crysthel. 22Corazon did not say, nay, not even hint that Primo's penis was erect or that he responded with an erection. 23 On the contrary, Corazon even narrated that Primo had to hold his penis with his right hand, thus showing that he had yet to attain an erection to be able to penetrate his victim. Antithetically, the possibility of Primo's penis having breached Crysthel's vagina is belied by the child's own assertion that she resisted Primo's advances by putting her legs close together; 24 consequently, she did not feel any intense pain but just felt "not happy" about what Primo did to her. 25 Thus, she only shouted "Ayo'ko, ayo'ko!" not "Aray ko, aray ko!" In cases where penetration was not fully established, the Court had anchored its conclusion that rape nevertheless was consummated on the victim's testimony that she felt pain, or the medico-legal finding of discoloration in the inner lips of the vagina, or the labia minora was already gaping with redness, or the hymenal tags were no longer visible. 26 None was shown in this case. Although a child's testimony must be received with due consideration on account of her tender age, the Court endeavors at the same time to harness only what in her story appears to be true, acutely aware of the equally guaranteed rights of the accused. Thus, we have to conclude that even on the basis of the testimony of Crysthel alone the accused cannot be held liable for consummated rape; worse, be sentenced to death.1wphi1 Lastly, it is pertinent to mention the medico legal officer's finding in this case that there were no external signs of physical injuries on complaining witness' body to conclude from a medical perspective that penetration had taken place. As Dr. Aurea P. Villena explained, although the absence of complete penetration of the hymen does not negate the possibility of contact, she clarified that there was no medical basis to hold that there was sexual contact between the accused and the victim. 27 In cases of rape where there is a positive testimony and a medical certificate, both should in all respects complement each other; otherwise, to rely on the testimonial evidence alone, in utter disregard of the manifest variance in the medical certificate, would be productive of unwarranted or even mischievous results. It is necessary to carefully ascertain whether the penis of the accused in reality entered the labial threshold of the female organ to accurately conclude that rape was consummated. Failing in this, the thin line that separates attempted rape from consummated rape will significantly disappear. Under Art. 6, in relation to Art. 335, of the Revised Penal Code, rape is attempted when the offender commences the commission of rape directly by overt acts, and does not perform all the acts of execution which should produce the crime of rape by reason of some cause or accident other than his own spontaneous desistance. All the elements of attempted rape and only of attempted rape are present in the instant case, hence, the accused should be punished only for it. The penalty for attempted rape is two (2) degrees lower than the imposable penalty of death for the offense charged, which is statutory rape of a minor below seven (7) years. Two (2) degrees lower is reclusion temporal, the range of which is twelve (12) years and one (1) day to twenty (20) years. Applying the Indeterminate Sentence Law, and in the absence of any mitigating or
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aggravating circumstance, the maximum of the penalty to be imposed upon the accused shall be taken from the medium period of reclusion temporal, the range of which is fourteen (14) years, eight (8) months and (1) day to seventeen (17) years and four (4) months, while the minimum shall be taken from the penalty next lower in degree, which is prision mayor, the range of which is from six (6) years and one (1) day to twelve (12) years, in any of its periods. WHEREFORE, the Decision of the court a quo finding accused PRIMO "SONNY" CAMPUHAN Y BELLO guilty of statutory rape and sentencing him to death and to pay damages is MODIFIED. He is instead found guilty of ATTEMPTED RAPE and sentenced to an indeterminate prison term of eight (8) years four (4) months and ten (10) days of prision mayor medium as minimum, to fourteen (14) years ten (10) months and twenty (20) days ofreclusion temporal medium as maximum. Costs de oficio. SO ORDERED.

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EN BANC [G.R. No. 124736. September 29, 1999] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROMEO GALLO y IGLOSO, accused-appellant. RESOLUTION PER CURIAM: The penalty imposed upon accused-appellant Romeo Gallo y Igloso by the Regional Trial Court, Branch 68, of Binangonan, Rizal, after finding him guilty beyond reasonable doubt of the crime of qualified rape, was affirmed by this Court in its decision promulgated on 22 January 1998. On 24 August 1999, accused-appellant filed a Motion to Re-open Case (with Leave of Court) seeking a modification of the death sentence to reclusion perpetua. Accused-appellant proffers that the reduction sought by him would be in line with the new Court rulings which annunciate that the seven attendant circumstances introduced in Section 11 of Republic Act No. 7659 partake of the nature of qualifying circumstances that must be pleaded in the indictment in order to warrant the imposition of the penalty. The Court in the case of People vs. Garcia,[1] speaking through then, Justice Florenz D. Regalado, ratiocinated that the additional attendant circumstances introduced by R.A. 7659 should be considered as special qualifying circumstances distinctly applicable to the crime of rape and, if not pleaded as such, could only be appreciated as generic aggravating circumstances.[2] The Information filed against accused-appellant reads: That on or sometime in the period of May, 1994 in the Municipality of Cardona, Province of Rizal, Philippines and within the jurisdiction of this Honorable Court, the above named accused, with lewd designs and by means of force or intimidation, did then and there willfully, unlawfully and feloniously have sexual intercourse with a 13 year old girl, Marites Gallo y Segovia.[3] The above indictment has not specifically alleged that accused-appellant is the victims father; accordingly, accused-appellants relationship to the victim, although proven during the trial, cannot be considered to be a qualifying circumstance.[4] The next crucial point is whether the Court must now apply retroactively the Garcia doctrine to the conviction of accused-appellant. The Court has had the opportunity to declare in a long line of cases that the tribunal retains control over a case until the full satisfaction of the final judgment conformably with established legal processes. It has the authority to suspend the execution of a final judgment or to cause a modification thereof as and when it becomes imperative in the higher interest of justice or when supervening events warrant it.[5]

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The doctrine declared in People vs. Garcia, and its reiteration in People vs. Ramos,[6] People vs. Ilao,[7] and People vs. Medina,[8] came only after almost a year from the promulgation of the instant case. The Office of the Solicitor General, when requested to comment on the aforesaid 24th August 1999 motion of accused-appellant, had this to state: Judicial decisions applying or interpreting the law or the Constitution shall form part of the legal system of the land (Article 8, Civil Code of the Philippines). Medina, which has the force and effect of law, forms part of our penal statutes and assumes retroactive effect, being as it is, favorable to an accused who is not a habitual criminal, and notwithstanding that final sentence has already been pronounced against him (Article 22, Revised Penal Code). Indeed, by operation of law, appellant is rightfully entitled to the beneficial application of Medina. Accordingly, the Office of the Solicitor General hereby joins appellants prayer for reduction of his sentence from death to reclusion perpetua. The Court agrees with the Office of the Solicitor General in its above observations and sees merit in its stand to join accused-appellant in praying for a modification of the sentence from death to reclusion perpetua. WHEREFORE, the motion to re-open the case is GRANTED and the decision sought to be reconsidered is MODIFIED by imposing on accused-appellant the penalty of reclusion perpetua in lieu of the death penalty and ordering him to indemnify the victim the amount of P50,000.00. Considering that the records of all cases where the death penalty is imposed are forwarded to the Office of the President in accordance with Section 25 of R.A. 7659, the Court directs the Clerk of Court to furnish the Office of the President with a copy of this resolution for appropriate guidance. SO ORDERED.

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Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 123544 July 29, 1999 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RAUL BERANA y GUEVARRA, accused-appellant. ROMERO, J.: In this sordid tale of defloration, a man is saved from the gallows for failure of the prosecution to adduce clear and positive proof of his relationship with the complainant. Before us on automatic review is a decision rendered by the Regional Trial Court of Naga City, Branch 25, imposing the supreme penalty of death on herein accused-appellant, Raul Berana y Guevarra for the crime of rape. 1 The facts of the case are as follows: On June 2, 1994 at around 2:00 o'clock in the morning, 14-year old Maria Elena Jarcia was sleeping with her four-year old niece in one of the two rooms in a house her family was renting at Bayawas Street, Naga City when she was awakened by her brother-in-law, herein accusedappellant, Raul Berana. Complainant recognized him because light was filtering in from a nearby window. Berana pointed a "buntot page" at her neck and warned her not to make any noise, otherwise she would be killed.1wphi1.nt The terrified girl was made to lie down while accused-appellant raised her duster and proceeded to remove her shorts and her underwear, after which he mashed her breasts and lay on top of her. The hapless girl was again threatened not to make any noise otherwise he would kill her. Complainant tried to cover her breasts with her arms but accused-appellant pushed her arms aside. As he inserted his organ into her womanhood, Elena felt excruciating pain. He began kissing her and made several push and pull movements, after which, the victim felt something liquid in her organ. Accused-appellant sat down and warned her not to talk to anyone about the incident. His bestial lust not having been satisfied, accused-appellant lay on top of her for the second time, fondled her breasts and made push and pull movements. At around 2:30 o'clock in the morning, accused-appellant left after warning her that only the two of them must know about the incident. During the entire time that the accused-appellant was raping her, the poor girl was weeping and trembling with fear because he repeated his threats to kill her should she make any noise. Complainant, before having identified in court Exhibit A as the "buntot page" used by accusedappellant, described it as "long with some protruding parts and with long and pointed tip." 2

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After the accused-appellant left, Elena put on her clothes and went to the adjacent room to report the incident to her sister, Ma. Ana. When Ana heard the grim story, she lost no time in hurrying to Camaligan, Camarines Sur where their parents, having been invited to a birthday party of a relative, had stayed overnight. On the same day, their mother fetched Elena and accompanied her to the Provincial Hospital for medical examination. The medical examination conducted revealed the following findings: P.E. Vagina admits one finger (+) Hymenal Laceration at 6:00 o'clock and 9 o'clock positions Gram Staining Result: gram (+) bacilli = many pus cells = few epithelial cells = many NOTE: Gram stains smear shows presence of spermatozoa 3 After having been examined, Elena and her mother proceeded to the Sabang Police station in Naga City to report the incident. Thereafter, accused-appellant apprehended by the police. On June 3, 1994, an information was filed before the Regional Trial Court of Naga City, Branch 25, against accused-appellant for the crime of rape, allegedly committed as follows: That on or about June 2, 1994, in the city of Naga, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused by means of force, did then and there willfully, unlawfully and feloniously, have sexual intercourse with the herein complaining witness, MARIA ELENA JARCIA Y DELOS MARTINEZ, a minor, 14 years of age. CONTRARY TO LAW. On June 6, 1994, an amended information was filed against accused-appellant which reads: That on or about June 2, 1994, in the City of Naga, Philippines and within the jurisdiction of this Honorable Court, the abovenamed accused, a relative of the offended party within the third civil degree, by means of force and intimidation, did there and then, willfully, unlawfully and feloniously have sexual intercourse with herein complaining witness MARIA ELENA JARCIA Y DE LOS MARTINEZ, a minor, 14 years of age, to her damage and prejudice. CONTRARY TO LAW. Upon arraignment, accused-appellant entered a plea of not guilty.
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On October 12, 1994, the prosecution again sought the amendment of the information filed in accordance with the mandate of Section 5, Rule 110 of the Revised Rules on Criminal Procedure relating to de oficio offenses which require the offended party's express conformity to the filing of the information. On October 17, 1994, accused-appellant entered a plea of not guilty to the re-amended information. Accused-appellant does not deny having sexual intercourse with the complainant but, however, maintains that Elena consented to it. According to accused-appellant, at around 1:30 o'clock in the morning of June 2, 1994, he had difficulty sleeping, so he took a walk and decided to visit his daughter at the house in Bayawas Street. When he arrived at the said place, he sat on the stairs at the rear of the house. While seated, he heard someone calling, "Mama." He recognized the voice as Elena's so he answered, "This is not your mama, this is your manoy," 4 On hearing these words, complainant opened the door and approached accused-appellant to ask him where her mother was, whereupon, accused-appellant told her that her parents might not return home because her father got drunk at a birthday party of a relative in Camaligan. He then asked Elena if his daughter was already asleep. Upon having been informed that his daughter had just fallen asleep, accused-appellant bade Elena goodbye but the girl, invited him to stay for the night so that he could keep watch over her and his daughter. Accused-appellant accepted her invitation since he was very tired. When he entered the room, Elena followed him and locked the door. Seeing his daughter sleeping soundly on a mat, he picked her up and moved her away from the middle to the left side so as not to disturb her. Elena turned off the light from the gas lamp and lifted the mosquito net to prepare for bed. At this point, she reminded the accused-appellant of the sum of money which she had been asking him some time. When told that he had no money, complainant allegedly started to caress and embrace accused-appellant while at the same time insisting that he give her the money. When he reiterated that he had no money, complainant took hold of his hand and placed it on her breast. Complainant allegedly was wearing only an undershirt and panty at the time. Accusedappellant, feeling "hot", decided, and succeeded in having sex with her. During the sexual intercourse, Elena told him, "It is painful, manoy." but accused-appellant tried to assuage the pain, saying that it is painful only during the first time. 5 Afterwards, accused-appellant sat beside Elena and engaged her in conversation. Elena allegedly asked him to help her when she completes high school. When accused-appellant promised to help her on condition that she will be serious in her studies, Elena rose from her lying position and embraced him. He kissed her on the lips, touched her breasts and asked her again for sex. Complainant allegedly smiled and told him, "To my sister, you could do it only one (sic) but to me you will make it two," 6 They had sex for the second time in the early morning of June 2, 1994. Accused-appellant left the room at around 2:30 o'clock in the morning. While answering a call of nature near a santol tree outside the house, he heard Ma. Ana ask Elena, "What did your manoy do to you?", to which the latter answered, "None, none." Accused-appellant heard nothing more as he decided to go on his way. 7 Accused-appellant narrated that prior to the incident, or specifically on December 1993, he was alone in the same room, reading an adult magazine when Elena arrived. She saw what he was reading and remarked that she had read the same magazine also. Embarassed, accused-appellant turned away and went near the window to continue his reading. Complainant, in the meantime,
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removed her school uniform leaving only her "sando" and her panty on. She approached accusedappellant and told him of the interesting parts in the magazine. When he told her that he had already seen them and was just reviewing the magazine, she told him, "Manoy, there are parts there which are beautiful." He then showed her the adult magazine and asked her to point out where these were. Elena placed her arms on his shoulders as she obliged him. When she embraced him, accused-appellant responded by embracing her back. He felt "hot" and placed his hand on her cheek then began touching her breast also. However, she turned her lips away so he ended kissing her cheek instead. Elena responded by kissing his cheek in turn. Accusedappellant, this time, kissed her lips and touched her breasts. They moved away from the window to avoid unwitting voyeurs. Somebody soon arrived and interrupted them so Elena became flustered and accused-appellant left. They maintained no relationship after the incident. The trial court did not give credence to the testimony of accused-appellant and on November 27, 1995, rendered a decision, the dispositive portion of which reads as follows: PREMISES CONSIDERED, this court finds accused-appellant guilty beyond reasonable doubt of the crime of rape defined and punishable under the provisions of Article 335 of the Revised Penal Code, as amended by Republic Act No. 7659 which provides: The death penalty shall be imposed when the crime of rape is committed with any of the following circumstances: 1. When the victim is under eighteen (18) years of age and the offender is a . . . relative by consanguinity or affinity within the third civil degree. The accused being the husband of the victim's sister, is related by affinity to his victim within the third civil degree, the court hereby imposes upon Raul Berana Guevarra to suffer DEATH PENALTY, to pay Ma. Elena M. Jarcia, the amount of P50,000.00 by way of damages and to pay the costs. In this automatic review of the decision rendered by the trial court, accused-appellant raises the following issues: I. The trial court erred when it convicted herein accused-appellant despite the absence of any clear and convincing evidence demonstrating the alleged use of force. II. The trial court erred when it convicted herein accused-appellant despite serious lapses and material inconsistencies in the testimony of the private complainant. III. The trial court erred when it convicted herein accused-appellant despite the prosecution's failure to adduce clear proof of all the attendant qualifying circumstances of the crime charged. IV. The trial court erred when it convicted herein accused-appellant based on a misplaced conclusion that herein accused-appellant allegedly admitted committing the offense charged. We shall deal with the issues raised seriatim.

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Regarding the first issue, accused-appellant contends that the trial court's finding that he had forcible sexual intercourse with the complainant was based solely on the results of the medical examination conducted by the prosecution's witness, Dr. Humilde Janaban on Elena. In support of his contention, appellant cites the following excerpt from the trial court's decision: A careful perusal of the evidence adduced during the trials conducted in this case, show that the medical certificate of June 2, 1994 which was identified by Dra. Ma. Humilde B. Janaban, showing that the victim, private complainant Ma. Elena M. Jarcia suffered "Hymenal laceration at 6:00 o'clock and 9:00 o'clock positions in her private part which could have been caused by sexual intercourse and/or by the intervention of a blunt object by thrusting and then pulling then thrusting again of a hard blunt object and the presence of spermatozoa confirms the testimony of Ma. Elena Jarcia that she was sexually molested makes such testimony credible. To the mind of the court this [sic] findings are significant to the effect that sexual intercourse was involuntary or through threat and duress. The absence of any kind of external injury in the body of the victim other than those found in her organ is of no consequence. Accused-appellant alleges that Elena encouraged his advances and the sexual intercourse was consensual. He asserts that while the hymenal laceration and the presence of spermatozoa prove the fact of sexual intercourse, they do not ipso facto prove that such act was committed by means of force, in line with our pronouncement inPeople vs. Godoy 8 that, "Even granting ex gratia argumenti that the medical report and the laceration corroborated the complainant's assertion that there was sexual intercourse, of course the same cannot be said as to the alleged use of force. It has been held that such corroborative evidence is not considered sufficient, since proof of facts constituting one element of the crime is not corroborative proof of facts necessary to constitute another equally important element of the crime. Accused-appellant's contention is misplaced. The trial court's finding of rape in the case at bar, was not based solely on the medical findings showing hymenal laceration and the presence of spermatozoa in the victim's organ. While the excerpt quoted by the accused-appellant from the questioned decision gives the impression that the trial court considered the hymenal laceration and the presence of spermatozoa in the victim's organ as proof of forcible sexual intercourse, the decision read in its entirety shows otherwise. The trial court merely considered the medical findings as corroborative evidence for the complainant's testimony that accused-appellant had sexual intercourse with her. Complainant was forced to accede to accused-appellant's advances because he poked a "buntot page" at her neck and threatened to kill her should she make any noise. With such repeated threats, the hapless girl eventually broke down and cried. Accused-appellant maintains, however, that complainant's testimony is too full of material inconsistencies to deserve belief. For instance, although complainant alleged that she bled after the coitus, the medical examination revealed otherwise; complainant's testimony in court that accused-appellant asked her for sex a second time belies her allegation that accused-appellant forced himself on her; complainant' s statement in her affidavit that accused-appellant was armed with a blunt instrument is materially different from her testimony in court that accused-appellant carried with him a "buntot page". Accused-appellant's assertion that the medical record is bereft of any proof/corroborating complainant's testimony that she bled after she was raped hardly merits consideration. The
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underwear of the complainant which was presented and admitted in court as evidence bore traces of blood. 9 Moreover, the absence of any sign of physical bleeding on the part of the complainant does not necessarily mean there was no forcible sexual intercourse. For one thing, complainant was threatened with a "buntot page" poked at her neck at that time. Then too, accused-appellant's threat was sufficient enough to intimidate a young girl of 14 to force her to submit to his baser instincts. It must be noted that proof of external injuries inflicted on the complainant is not indispensable in a prosecution for rape committed with force or violence. The law does not impose upon a rape victim the burden of proving resistance. Physical resistance need not be established in rape cases when intimidation is exercised upon her and she submits herself against her will to the rapist's lust because of fear for life and personal safety. 10 When a woman testifies that she was raped, she says in effect all that is necessary to show that said crime has been committed. Accused-appellant, however, would have us believe that the sexual intercourse was consensual since complainant herself testified during trial that he asked her for sex a second time during the night in question. While complainant did state during trial that, "After the first incident, he sat down and he again asked me to give him for the second time," 11 complainant also stated that she was then crying and trembling with fear. Considering the continuing threat on her life if she makes an outcry, complainant had no choice but to accede to the desire of accused-appellant. That he asked her for sex does not necessarily imply that she gave her consent when he succeeded in ravishing her again. It is indeed preposterous that a young woman, untrained in the ways of the world and of men would initiate and encourage his advances, as accused-appellant claims, considering especially that he is the husband of her older sister. Accused-appellant nevertheless insists that complainant's testimony does not merit credence because of inconsistencies in her statement regarding the weapon used by the accused-appellant to threaten her on the night of the incident. We are not unaware that complainant stated in her affidavit that accused-appellant was armed with a blunt instrument in contrast with her testimony in court that accused-appellant was armed with a "buntot page." It must be borne in mind, however, that discrepancies between an affidavit and testimony in court occur more often than not since an affidavit is not prepared by the affiant herself but by another who uses his own language in writing the affiant's statement. It might not be amiss to note, at this point, that the instrument which was submitted by complainant to the police and later identified in court as the "buntot page" used by the accused-appellant was described by the Chief of Police in his letter to the prosecutor as "one (1) blunt instrument with black handle. 12 In the case of People vs. Empleo 13, we had occasion to state that, "the contradiction between the affidavit and the testimony of the witness may be explained by the fact that an affidavit will not always disclose all the facts and will oftentimes and without design incorrectly describe, without the deponent detecting it, some of the occurrences narrated." We find merit, however, in accused-appellant's contention that the prosecution failed to adduce clear and positive proof of the qualifying circumstance of relationship between accused-appellant and complainant. It should be noted that the relationship between accused-appellant and the complainant qualifies the crime from rape punishable by reclusion perpetua to rape punishable by death under Republic Act No. 7659. Under Article 335 of the Revised Penal Code as amended by R.A. No. 7659, the death penalty shall be imposed if the crime of rape is committed with any of the following attendant circumstances:
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xxx xxx xxx 1. When the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common law spouse of the parent of the victim. Affinity is defined as "the relation which one spouse because of marriage has to blood relatives of the other. The connection existing, in consequence of marriage between each of the married persons and the kindred of the other. The doctrine of affinity grows out of the canonical maxim that marriage makes husband and wife one. The husband has the same relation by affinity to his wife's blood relatives as she has by consanguinity and vice versa.14 Consequently, to effectively prosecute accuse-appellant for the crime of rape committed by a relative by affinity within the third civil degree, it must be established that a) he is legally married to complainant's sister and b) complainant and accused-appellant's wife are full or half blood siblings. The prosecution tried to established the relationship of accused-appellant to the complainant by asking her the following during trial: xxx xxx xxx Q: By the way, do you know the accused in this case by the name of Raul? A: Yes, I know him, sir. Q: Why do you know him? A: He is the husband of my sister. 15 Complainant' s mother also testified: xxx xxx xxx Q: Do you know the accused in this case, Raul Berana y Guevarra? A: Yes, I know him, sir. Q: Why do you know him? A: Because he is the husband of my daughter. Q: Whose name is that? A: Rosa Jarcia, sir. 16

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Based on abovementioned testimonies, as well as accused-appellant's letter to the complainant's parent's addressing them as "mama at papa" and his use of phrase, "ang inyong manugang, Raul" 17 the trial court convicted him of the crime of rape committed by a relative by affinity within the third civil degree, under the provisions of Article 335 of the Revised Penal Code, as amended by Republic Act. No. 7659. Considering that the relationship of accused-appellant to complainant qualifies the crime of rape punishable byreclusion perpetua to rape punishable by death, it is but proper that a more stringent proof of relationship between the offender and the offended party must be established by the prosecution. Corollarily, a clearer proof of relationship between the complainant and the spouse of accused-appellant must be presented. The relationship of accused-appellant and the complainant is not adequately substantiated since it is merely based on testimony of the complainant, her mother's testimony and the accused-appellant's use of the words, "mama at papa" in his letters. Needless to say, the evidence presented are not sufficient to dispel doubts about the true relationship of accused-appellant and the complainant, to the benefit of which the accused is entitled. Where the life of an accused-appellant hangs in the balance, a more exacting proof must be adduced. Accused-appellant, in his last submission, insists that the trial court erred in convicting him based solely on a misplaced conclusion that he admitted the offense charged based on the four (4) letters he sent to the parents of the complainant, one of which states: Ma, Pa, patawarin niyo na ako, alam ko na hindi niyo basta-basta mapapatawad ang nagawa ko pero paano naman po ang kinabukasan nang mga apo at anak ko. 18 Accused-appellant asserts that the letters, in no way, indicate an admission of guilt on his part. In support of his contention, accused-appellant cites the case of United States vs. Maqui 19 where it was held that an accused may show that an offer of compromise on his part was not made under a consciousness of guilt but merely to avoid the inconvenience of imprisonment or for some other reason which would justify a claim by the accused that an offer to compromise was not in truth an admission of his guilt and an attempt to avoid the legal consequences which would ordinarily therefrom. We are not convinced. The tenor of the letters sent by the accused-appellant to the parents of the complainant, while not explicitly admitting the forcible sexual intercourse, could hardly be considered an admission made merely to avoid the inconvenience of imprisonment. Consider the following excerpts: Mama at Papa, Masakit man sa inyo ang nagawa ko. Pero nagsasabi ako sa inyo ng totoo. Nang maganap ang insidenteng iyon. Wala ako sa sarili kong pagkatao. At wala akong matandaan sa nangyari (sic) 20 And xxx xxx xxx
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Ma, pa, hindi ko kayo sinusumbatan. Dahil wala naman po akong dapat isumbat sa inyo. Napakabait niyo sa kain. Ewan ko nga lang kung bakit ko nagawa iyon. Kung totoo talagang ako nasa sarili kong pagkatao. 21 Despite his claim that complainant initiated and consented to the sexual intercourse, accusedappellant in his letters never made mention of this fact but has, instead, unceasingly asked for forgiveness from the parents of the complainant, short of admitting categorically the offense charged. Clearly, the unsolicited letters of the accused-appellant cannot be construed as an offer of compromise to avoid the inconvenience of imprisonment but a plea of mercy to save him from the gallows. In view of the fact that relationship between accused-appellant and the complainant was not properly established, we are constrained to reduce the penalty imposed by the lower court from death to reclusion perpetua. Accused-appellant is, however, ordered to pay civil indemnity ex delicto in the amount of P50,000 and the P50,000 imposed by the lower court shall constitute moral damages. The fact that the complainant has suffered the trauma of mental, physical and psychological suffering which constitutes the bases for moral damages is too obvious to still require the recital thereof at the trial by the victim since the court itself assumes and even acknowledges such agony on her part as gauge of her credibility. 22 WHEREFORE, the decision of the Regional Trial Court of Naga City, Branch 25, finding accusedappellant Raul Berana y Guevarra guilty beyond reasonable doubt of rape is AFFIRMED with the modification that accused-appellant is sentenced to suffer the penalty of reclusion perpetua. Accused-appellant is ordered to pay complainant Ma. Elena M. Jarcia the sum of P50,000 by way of civil indemnity and P50,000 as moral damages. Costs against accused-appellant.1wphiSO ORDERED.

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CHILD ABUSE Republic of the Philippines SUPREME COURT FIRST DIVISION G.R. No. 163866 July 29, 2005 ISIDRO OLIVAREZ, Petitioners, vs. COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, Respondents. DECISION YNARES-SANTIAGO, J.: For review is the Court of Appeals decision in CA-G.R. CR No. 228601 which affirmed the judgment2 rendered by the Regional Trial Court of San Pedro, Laguna, Branch 93,3 in Crim. Case No. 0505-SPL finding petitioner Isidro Olivarez guilty of violating Section 5, Republic Act No. 7610;4 and its resolution denying reconsideration thereof.5 The case originated from a complaint filed by the offended party with the Municipal Trial Court of San Pedro, Laguna which was the basis upon which an information for violation of R.A. 7610 was filed against Isidro Olivarez, to wit: The undersigned 4th Assistant Provincial Prosecution (sic) of Laguna upon a sworn complaint filed by the private complainant, CRISTINA B. ELITIONG, hereby accuses ISIDRO OLIVAREZ of the crime of "VIOLATION OF RA 7610", committed as follows: That on or about July 20, 1997, in the Municipality of San Pedro, Province of Laguna, within the jurisdiction of this Honorable Court, said accused actuated by lewd design did then and there wilfully, unlawfully and feloniously by means of force and intimidation commit acts of lasciviousness on the person of one CRISTINA B. ELITIONG, by touching her breasts and kissing her lips, against her will, to her damage and prejudice. CONTRARY TO LAW.6 The established facts of this case are as follows: ... The offended party Cristina Elitiong was a 16-year old high school student who with her brothers were employed by the accused, 64-year old Isidro Olivarez, in the making of sampaguita garlands. For one year she had been reporting for work during weekends at the residence of the accused. Within the compound and at about three armslength from the main door of the house was her workplace.

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At about 11:30 oclock in the morning of July 20, 1997, Cristina, her two brothers Macoy and Dodong, and one named Liezel were at their work when the accused who was near the main door called for her. She dutifully approached him. The accused asked her if she had told her mother that he gave her money, and when she said that she did not, he embraced her and held her breast. The workers were facing the street so that the two were not seen. He pulled her to the kitchen and, closing the kitchen door, kissed her on the lips. She pushed him away and went back to her station. Her brother Macoy saw her crying when she came out of the house. She did not say a word, but went to the faucet and washed her face. The offended party continued to finish the garlands she was working on, and waited until the afternoon for her wages. When she arrived at her home, she first told her mother that she no longer wished to go back. When pressed for a reason, she said basta po mama ayaw ko ng magtuhog. Finally, she told her mother what happened. Aurora Elitiong, the mother, accompanied the offended party to the San Vicente Barangay Hall on July 26 to report the incident and give a statement. Days later, Cristina gave another statement to the local police. In the defense version, the offended party and her brothers had slept overnight in the house of the accused. When Isidro woke up in the early morning to relieve himself, he saw the girl sleeping on the sofa. He admonished her to join her brothers in the basement. He went back to his room and slept until 8 A.M. Two hours later, at 10 A.M., he left for the Caltex Service Station which was only a five minute ride from his home by tricycle. His daughter Analee Olivarez was staying in another house in the compound and attended a morning mass. When she returned at 10:30 A.M., she no longer saw her father. Maritess Buen, the laundrywoman, who was washing clothes outside the kitchen, saw the accused earlier. By 10 A.M., when she entered the house, he already left. He returned by noontime. The accused testified that he was at the Caltex station for two and a half hours waiting for the shipment of flowers from Pampanga. The goods arrived at 12:15 P.M. He left shortly thereafter and passed by the market before going home. He arrived at 12:30 P.M. The next several days were uneventful for him until his laundrywoman Maritess told him that there was a complaint against him at the barangay office. A meeting took place between him and the girls family in the presence of the barangay authorities. The girls mother was demanding P30,000 for the settlement of the case, but he refused to cave in and told a barangay official Jaime Ramos that he would rather see his accusers in court than give a centavo because he did not commit the crime.7 The trial court found Olivarez guilty of violating Section 5 of R.A. 7610 and sentenced him to suffer an indeterminate penalty of imprisonment from eight (8) years and one (1) day of prision mayor as minimum to seventeen (17) years, four (4) months and one (1) day of reclusion temporal as maximum, to indemnify the minor Cristina Elitiong in the amount of P15,000.00 as moral damages and to pay the costs. On appeal, the decision of the trial court8 was affirmed by the Court of Appeals. The motion for reconsideration9filed by the accused was denied.10 Hence, this petition for review11 on the following grounds:

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I. The Honorable Court of Appeals committed grave abuse of discretion in not holding that the essential elements in Violation of Section 5, Article III of Republic Act 7610, which are age of the offended party and that she is an abused or exploited child as defined in the law, not having been alleged in the Information, petitioner/accused cannot be found guilty of said offense and must be acquitted. II. The Honorable Court of Appeals erred and committed grave abuse of discretion in holding that the Information charging petitioner/accused of Violation of Section 5, Republic Act 7610, but failing to allege the essential elements of said offense, had substantially complied with the requirements of due process for the accused. III. The Honorable Court of Appeals erred and gravely abused its discretion in not reversing the judgment of the trial court convicting the accused/petitioner and sentencing him to suffer the penalty of imprisonment for alleged Violation of Section 5, Republic Act 7610, which was not alleged in the Information.12 Petitioner alleges that his right to be informed of the nature and cause of the accusation against him was violated for failure to allege in the information the essential elements of the offense for which he is being charged. Section 5, Article III of R.A. 7610 states: SEC. 5. Child Prostitution and Other Sexual Abuse. Children, whether male or female, who for money, profit, or any other consideration or due to the coercion or influence of any adult, syndicate or group, indulge in sexual intercourse or lascivious conduct, are deemed to be children exploited in prostitution and other sexual abuse. The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed upon the following: ... (b) Those who commit the act of sexual intercourse or lascivious conduct with a child exploited in prostitution or subjected to other sexual abuse: Provided, That when the victim is under twelve (12) years of age, the perpetrators shall be prosecuted under Article 335, paragraph 3, for rape and Article 336 of Act No. 3815, as amended, the Revised Penal Code, for rape or lascivious conduct, as the case may be: Provided, That the penalty for lascivious conduct when the victim is under twelve (12) years of age shall be reclusion temporal in its medium period; ..." (Italics supplied) The elements of sexual abuse under Section 5, Article III of R.A. 7610 are as follows: 1. The accused commits the act of sexual intercourse or lascivious conduct. 2. The said act is performed with a child exploited in prostitution or subjected to other sexual abuse. 3. The child, whether male or female, is below 18 years of age.13
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Section 32, Article XIII, of the Implementing Rules and Regulations of R.A. 7610 defines lascivious conduct as follows: [T]he intentional touching, either directly or through clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks, or the introduction of any object into the genitalia, anus or mouth, of any person, whether of the same or opposite sex, with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person, bestiality, masturbation, lascivious exhibition of the genitals or pubic area of a person.14 (Emphasis supplied) The first element obtains in this case. It was established beyond reasonable doubt that petitioner kissed Cristina and touched her breasts with lewd designs as inferred from the nature of the acts themselves and the environmental circumstances.15 The second element, i.e., that the act is performed with a child exploited in prostitution or subjected to other sexual abuse, is likewise present. As succinctly explained in People v. Larin:16 A child is deemed exploited in prostitution or subjected to other sexual abuse, when the child indulges insexual intercourse or lascivious conduct (a) for money, profit, or any other consideration; or (b) under the coercion or influence of any adult, syndicate or group. ... It must be noted that the law covers not only a situation in which a child is abused for profit, but also one in which a child, through coercion or intimidation, engages in lascivious conduct. (Emphasis supplied) We reiterated this ruling in Amployo v. People:17 ... As we observed in People v. Larin, Section 5 of Rep. Act No. 7610 does not merely cover a situation of a child being abused for profit, but also one in which a child engages in any lascivious conduct through coercion or intimidation... Thus, a child is deemed subjected to other sexual abuse when the child indulges in lascivious conduct under the coercion or influence of any adult. In this case, Cristina was sexually abused because she was coerced or intimidated by petitioner to indulge in a lascivious conduct. Furthermore, it is inconsequential that the sexual abuse occurred only once. As expressly provided in Section 3 (b) of R.A. 7610, the abuse may be habitual or not. It must be observed that Article III of R.A. 7610 is captioned as "Child Prostitution and Other Sexual Abuse" because Congress really intended to cover a situation where the minor may have been coerced or intimidated into lascivious conduct, not necessarily for money or profit. The law covers not only child prostitution but also other forms of sexual abuse. This is clear from the deliberations of the Senate: Senator Angara. I refer to line 9, who for money or profit. I would like to amend this, Mr. President, to cover a situation where the minor may have been coerced or intimidated into this lascivious conduct, not necessarily for money or profit, so that we can cover those situations and not leave loophole in this section.

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The proposal I have is something like this: WHO FOR MONEY, PROFIT, OR ANY OTHER CONSIDERATION ORDUE TO THE COERCION OR INFLUENCE OF ANY ADULT, SYNDICATE OR GROUP INDULGE, et cetera. The President Pro Tempore. I see. That would mean also changing the subtitle of Section 4. Will it no longer be child prostitution? Senator Angara. No, no. Not necessarily, Mr. President, because we are still talking of the child who is being misused for sexual purposes either for money or for consideration. What I am trying to cover is the other consideration. Because, here, it is limited only to the child being abused or misused for sexual purposes, only for money or profit. I am contending, Mr. President, that there may be situations where the child may not have been used for profit or ... The President Pro Tempore. So, it is no longer prostitution. Because the essence of prostitution is profit. Senator Angara. Well, the Gentleman is right. Maybe the heading ought to be expanded . But, still, the President will agree that that is a form or manner of child abuse . The President Pro Tempore. What does the Sponsor say? Will the Gentleman kindly restate the amendment? ANGARA AMENDMENT Senator Angara. The new section will read something like this, Mr. President: MINORS, WHETHER MALE OR FEMALE, WHO FOR MONEY, PROFIT, OR ANY OTHER CONSIDERATION OR INFLUENCE OF ANY ADULT, SYNDICATE OR GROUP INDULGE IN SEXUAL INTERCOURSE, et cetera. Senator Lina. It is accepted, Mr. President. The President Pro Tempore. Is there any objection? [Silence] Hearing none, the amendment is approved. How about the title, Child Prostitution, shall we change that too? Senator Angara. Yes, Mr. President, to cover the expanded scope. The President Pro Tempore. Is that not what we would call probable child abuse? Senator Angara. Yes, Mr. President. The President Pro Tempore. Subject to rewording. Is there any objection? [Silence] Hearing none, the amendment is approved. x x x. (Italicization supplied)18

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Petitioner makes much of the failure to allege in the information that Cristina was a child below 18 years of age at the time the offense was committed. He insists that the Court of Appeals mistakenly relied on the case of People v. Rosare19 because unlike in Rosare, he had no personal knowledge of Cristinas age, which he claims was not proven beyond reasonable doubt. In all criminal prosecutions, the accused is entitled to be informed of the nature and cause of the accusation against him.20 A complaint is sufficient if it states the name of the accused; the designation of the offense given by the statute; the acts or omissions complained of as constituting the offense; the name of the offended party; the approximate date of the commission of the offense; and the place where the offense was committed.21 The complaint or information shall state the designation of the offense given by the statute, aver the acts or omissions constituting the offense, and specify its qualifying and aggravating circumstances. If there is no designation of the offense, reference shall be made to the section or subsection of the statute punishing it.22 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.23 In the present case, the Court of Appeals found the information to be sufficient. Relying on the principle laid down in People v. Rosare, it held: Before us is an information for violation of RA 7610 that, as in Rosare, fails to mention an indispensable element of the offense, the age of the offended party, but makes allusion to another document, the sworn complaint of the offended party, and declares it to be the basis upon which the information was filed. This instrument is the complaint filed by the offended party with the Municipal Trial Court of San Pedro, Laguna in which she stated that she was 16 years old at the time of the offense. It forms part of the initial records of the case and comes before the posting of bail and entry of the plea of not guilty before the RTC. It appears that after the charge was filed with the MTC, and as the preliminary investigation went underway, the accused filed a manifestation stating that he had filed a counter-affidavit to the charge and reserved the right to file a motion to quash the information if it was filed. The MTC found probable cause against him and elevated the records to the provincial prosecutor for filing of the information. A complaint is under the Rules one of the two charging instruments for the offense of which the accused was tried and convicted here. While the criminal action was instituted by the complaint of the offended party, the information signed only by the fiscal ushered in the formal trial process. But both are accusations in writing against the accused and serve the purpose of enabling him to take the necessary legal steps for his defense. What is important is that the information states that the accused is being charged of an offense under RA 7610 based on the complaint of the offended party, to which the accused had adequately responded. Under these conditions, the accused was fully apprised of the accusation against him. The purpose and objective of the constitutional mandate are discharged and satisfied. The accused may not be said to be taken by surprise by the failure of the information to state the age of the offended party, when he had received the initiatory complaint where he was told how old the offended party was.24

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We agree with the ruling of the Court of Appeals. In People v. Rosare, the information did not allege that the victim was a mental retardate which is an essential element of the crime of statutory rape. This Court however sustained the trial courts judgment of conviction holding that the resolution of the investigating prosecutor which formed the basis of the information, a copy of which is attached thereto, stated that the offended party is suffering from mental retardation. It ruled that there was substantial compliance with the mandate that an accused be informed of the nature of the charge against him. Thus: Appellant contends that he cannot be convicted of statutory rape because the fact that the victim was a mental retardate was never alleged in the information and, absent this element, the acts charged negate the commission of the offense for which he was convicted by the lower court. Pursuant to Section 8, Rule 112 of the Rules of Court, we have decided to motu proprio take cognizance of the resolution issued by the investigating prosecutor in I.S. No. 92-0197 dated June 2, 1992, which formed the basis of and a copy of which was attached to the information for rape filed against herein appellant. Therein, it is clearly stated that the offended party is suffering from mental retardation. We hold, therefore, that this should be deemed a substantial compliance with the constitutional mandate that an accused be informed of the nature of the charge against him. ...25 In People v. Villamor,26 the information failed to allege the age of the offended party but since a copy of the order issued by the investigating judge was attached in the record of the preliminary investigation clearly stating that the complainant was nine years old, it was held that there was substantial compliance with the mandate to inform the accused of the nature of the accusation. It was also declared that the defense cannot invoke the element of surprise as to deprive it of the opportunity to suitably prepare for the accuseds defense, thus: ... Furthermore, even if the information filed did not allege that the complainant was nine years old, there was substantial compliance with the constitutional mandate that an accused be informed of the nature of the charge against him when the Order issued by the investigating judge, a copy of which was attached in the record of the preliminary investigation, clearly stated that the complainant was nine years old. Consequently, the defense cannot invoke the element of surprise as to deprive it of the opportunity to suitably prepare for the accuseds defense. 27 In People v. Galido,28 the information for rape failed to allege the element of force or intimidation. The Court ruled that this omission is not fatal since the complaint specifically charged the accused with three counts of rape committed by means of force and intimidation. Thus: Appellant avers that because the Informations on which he was arraigned and convicted did not allege the element of force or intimidation, he was deprived of his constitutional right to be informed of the nature and cause of the accusation against him. He insists that such failure was a fatal defect that rendered the Informations void. As a rule, the accused cannot be convicted of an offense, unless it is clearly charged in the complaint or information. Otherwise, their constitutional right to be informed of the nature and cause of the accusation against them would be violated.

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In the present case, appellant correctly pointed out that the element of "force or intimidation" should have been expressly alleged in the Informations. This omission is not fatal, however, because the Complaint specifically accused him of three counts of rape committed by means of force and intimidation...29 The same ground was adopted in People v. Mendez30 which involved an information for rape that failed to allege force or intimidation. We ruled therein that it was not a fatal omission because it was stated in the complaint that accused Rosendo raped Virginita "by means of force." In People v. Torellos,31 the Court treated the information for rape which failed to allege force and intimidation as merely defective and that the deficiency was cured by the failure of the accused to assail the insufficiency of the allegations in the Information and by competent evidence presented during trial. Thus, while it is necessary to allege the essential elements of the crime in the information, the failure to do so is not an irremediable vice. When the complaint or the resolution by the public prosecutor which contain the missing averments is attached to the information and form part of the records, the defect in the latter is effectively cured, and the accused cannot successfully invoke the defense that his right to be informed is violated. In the instant case, the missing averment in the information is supplied by the Complaint which reads in full: COMPLAINT The undersigned complainant, accuses ISIDRO OLIVAREZ, of the crime of VIOLATION OF RA 7610, committed as follows: That on or about 11:30 A.M. of July 20, 1997 at Brgy. San Vicente, San Pedro, Laguna, Philippines and within the jurisdiction of this Honorable Court the said accused with lewd design did then and there willfully, unlawfully and feloniously commit an act of lasciviousness against one CRISTINA ELITIONG Y BALDONO, 16 years old, by kissing and touching her private parts and embracing her against her will. CONTRARY TO LAW.32 Petitioner was furnished a copy of the Complaint which was mentioned in the information, hence he was adequately informed of the age of the complainant. The prosecution has also established the minority of the offended party through competent evidence. Cristina testified that she was 16 years old and a certification from the Office of the Local Registrar of San Pedro, Laguna was presented showing that she was born on October 17, 1980.33 The third element of sexual abuse is therefore present. The information merely states that petitioner was being charged for the crime of "violation of R.A. 7610" without citing the specific sections alleged to have been violated by petitioner. Nonetheless, we do not find this omission sufficient to invalidate the information. The character of the crime is not determined by the caption or preamble of the information nor from the specification of the
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provision of law alleged to have been violated, they may be conclusions of law, but by the recital of the ultimate facts and circumstances in the complaint or information.34 The sufficiency of an information is not negated by an incomplete or defective designation of the crime in the caption or other parts of the information but by the narration of facts and circumstances which adequately depicts a crime and sufficiently apprise the accused of the nature and cause of the accusation against him. True, the information herein may not refer to specific section/s of R.A. 7610 alleged to have been violated by the petitioner, but it is all to evident that the body of the information contains an averment of the acts alleged to have been performed by petitioner which unmistakably refers to acts punishable under Section 5 of R.A. 7610. As to which section of R.A. 7610 is being violated by petitioner is inconsequential. What is determinative of the offense is the recital of the ultimate facts and circumstances in the complaint or information. The prosecution has proved beyond reasonable doubt that petitioner committed acts of sexual abuse against Cristina. The trial court found Cristinas testimony to be clear, candid, and straightforward.35 Her testimony, given in a categorical, straightforward, spontaneous and candid manner, is worthy of faith and belief.36 In the face of the accusations against him, petitioner could only interpose uncorroborated alibi and denial. Denial, like alibi, is an inherently weak defense and cannot prevail over the positive and categorical identification provided by eyewitnesses.37 Not only did Cristina identify the petitioner as her assailant but no ill-motive was adduced why she would impute against him so grave a charge. This Court will not interfere with the trial courts assessment of the credibility of witnesses, absent any indication that s ome material fact was overlooked or a grave abuse of discretion committed. None of the exceptions obtain in the instant case.38 In addition to moral damages, a fine in the amount of P15,000.00 should likewise be imposed pursuant to our ruling in Amployo v. People:39 It does not end there. In People v. Abadies, and with respect specifically to lascivious conduct amounting to child abuse under Section 5(b) of Rep. Act No. 7610, we imposed a fine of P30,000 for each count of lascivious conduct in addition to the award of moral damages on the justification that It will be noted that Section 5, Article II of Republic Act No. 7610 provides for the penalty of imprisonment. Nevertheless, Section 31(f), Article XII (Common Penal Provisions) thereof allows the imposition of a fine subject to the discretion of the court, provided that the same is to be administered as a cash fund by the Department of Social Welfare and Development and disbursed for the rehabilitation of each child victim, or any immediate member of his family if the latter is the perpetrator of the offense. This provision is in accord with Article 39 of the Convention on the Rights of the Child, to which the Philippines became a party on August 21, 1990, which stresses the duty of states parties to ensure the physical and psychological recovery and social reintegration of abused and exploited children in an environment which fosters their self-respect and human dignity. With the case of Abadies as guidepost, we impose a fine of Fifteen Thousand Pesos (P15,000.00) on petitioner.
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WHEREFORE, the petition is DENIED. The decision of the Court of Appeals dated January 9, 2004 in CA-G.R. CR No. 22860 and its resolution dated June 4, 2004, are AFFIRMED with MODIFICATION. In addition to the award of P15,000.00 as moral damages, petitioner Isidro Olivarez is also ordered to pay a fine in the amount of P15,000.00. SO ORDERED.

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Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 147913 January 31, 2007

CLEMENT JOHN FERDINAND M. NAVARRETE, Petitioner -versus PEOPLE OF THE PHILIPPINES, Respondent. x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x DECISION CORONA, J.: This petition for review on certiorari[1] assails the September 29, 2000 decision[2] and May 4, 2001 resolution[3] of the Court of Appeals (CA) in CA-G.R. CR No. 20531 which affirmed the January 16, 1997 decision of the Regional Trial Court (RTC), Branch 171, Valenzuela,[4] Metro Manila in Criminal Case No. 5302-V-96.[5] Petitioner Clement John Ferdinand M. Navarrete was charged with the crime of statutory rape of BBB[6] under the following information: That on or about October 30, 1995 in Valenzuela, Metro Manila and within the jurisdiction of this Honorable Court, the above-named accused, did then and there [willfully], unlawfully and feloniously have sexual intercourse with one [BBB], age[d] 5 years old. CONTRARY TO LAW.[7]

On arraignment, petitioner pleaded not guilty. The facts show that BBB, who was at that time five years old, and petitioner were neighbors, their houses being adjacent to each other.[8] On October 30, 1995, at around past 9:00 in the evening, BBB went to petitioners house to watch television, which was something she
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often did.[9] Only petitioner and BBB were there that night.[10] BBB testified that it was on this occasion that petitioner sexually abused her, placed his penis [in her] vagina twice, poked her vagina with a stick with cotton[11] and boxed her on the right side of her eye.[12] Then, petitioner brought her to the comfort room and pointed a knife to her throat.[13] Afterwards, she and petitioner watched a pornographic movie[14] together.[15] AAA, BBBs mother, testified that around 10:30 p.m., BBB went out of petitioners house. While trembling and crying, BBB embraced her mother and told he r that Kuya Ferdie sinundot ako.[16] The next day, on October 31, 1995, Dr. Noel Minay, medico-legal officer of the National Bureau of Investigation, examined BBB. He found that her maidenhead was short, intact and had a narrow opening at 0.3 cm. in diameter. He concluded that these findings precluded complete penetration by an average-sized Filipino male organ in full erection.[17] Testifying in his own behalf, petitioner denied the accusation against him and claimed that AAA merely concocted the charge against him. He alleged that she had ill feelings against his mother who she thought had something to do with the separation of her (AAAs) son from the Philippine Postal Corporation. He also posited that she resented the Navarretes refusal to allow her to place a jumper on their electrical connection.[18] In a decision dated January 16, 1997, the RTC absolved petitioner of statutory rape as there was no clear and positive proof of the entry of petitioners penis into the labia of the victims vagina. However, it convicted petitioner for acts of lasciviousness under Article 336 of the Revised Penal Code (RPC) in relation to Section 5(b), Article III of RA 7610 (Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act): WHEREFORE, [petitioner] Clement John Ferdinand Navarrete is sentenced to suffer an indeterminate imprisonment of TWELVE (12) YEARS and ONE (1) DAY of RECLUSION TEMPORAL, as minimum to [SIXTEEN] (16) YEARS of RECLUSION TEMPORAL, as maximum with the accessory penalties prescribed by the law and to pay the costs.
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The accused is hereby ordered to indemnify the victim the amount of P20,000.00 as moral damages and the amount of P10,000.00 pursuant to Section 31 of the [Act].[19]

On appeal, the CA affirmed the decision of the RTC. Thus, this petition. Petitioner asserts that he cannot be convicted of acts of lasciviousness in relation to Section 5(b), Article III of RA 7610, a crime not specifically alleged in the information which charged him with statutory rape. Otherwise, his constitutional right to be informed of the nature and cause of the accusation against him would be violated. He likewise contends that his guilt for the said offense was not proven beyond reasonable doubt. There is no merit in the petition.

The Constitution mandates that the accused, in all criminal prosecutions, shall enjoy the right to be informed of the nature and cause of the accusation against him.[20] From this fundamental precept proceeds the rule that the accused may be convicted only of the crime with which he is charged.[21]

An exception to this rule is the rule on variance in Section 4, Rule 120 of the Rules of Court:[22] Judgment in case of variance between allegation and proof. When there is variance between the offense charged in the complaint or information, and that proved, and the offense as charged is included in or necessarily includes the offense proved, the accused shall be convicted of the offense proved which is included in the offense charged, or of the offense charged which is included in that which is proved.

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Petitioner was found guilty of violating Article 336 of the RPC in relation to Section 5(b), Article III of RA 7610: Sec. 5. Child Prostitution and Other Sexual Abuse. Children, whether male or female, who for money, profit, or any other consideration or due to the coercion or influence of any adult, syndicate or group, indulge in sexual intercourse or lascivious conduct, are deemed to be children exploited in prostitution and other sexual abuse. The penalty of reclusion temporal in perpetua shall be imposed upon the following: xxx xxx its medium period to reclusion

xxx

(b) Those who commit the act of sexual intercourse or lascivious conduct with a child exploited in prostitution or subjected to other sexual abuse: Provided, That when the victim is under twelve (12) years of age, the perpetrators shall be prosecuted under Article 335, paragraph 3, for rape and Article 336 of Act No. 3815, as amended, [or] the [RPC], for rape or lascivious conduct as the case may be: Provided, That the penalty for lascivious conduct when the victim is under twelve (12) years of age shall be reclusion temporal in its medium period.

Under this provision, when the victim is under 12 years old, the accused shall be prosecuted under either Article 335 (for rape) or Article 336 (for acts of lasciviousness) of the RPC. Accordingly, although an accused is charged in the information with the crime of statutory rape (i.e., carnal knowledge of a woman under twelve years of age[23]), the offender can be convicted of the lesser crime of acts of lasciviousness, which is included in rape.[24]

The case of People v. Bon[25] is squarely in point. In that case, the accused was charged with the rape of a six-year old girl. The Court ruled that rape was not proved beyond reasonable doubt. We, however, held that the accused was liable for the crime of acts of lasciviousness, as defined and penalized under Article 336 of the RPC in relation to RA 7610[26] since all the elements of this offense were established. Petitioner cannot therefore successfully argue that his
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constitutionally protected right to be informed of the nature and cause of the accusation against him was violated when he was found guilty under Section 5 of RA 7610.

Petitioner next contends that his guilt was not proven beyond reasonable doubt. We disagree.

In Amployo v. People,[27] we declared that pursuant to Section 5 (b) of RA 7610, before an accused can be convicted of child abuse through lascivious conduct on a minor below 12 years of age, the requisites for acts of lasciviousness under Article 336 of the RPC must be met in addition to the requisites for sexual abuse under Section 5 of RA 7610.[28]

The elements of the crime of acts of lasciviousness under Article 336 of the RPC are the following: (1) (2) a. b. The offender commits any act of lasciviousness or lewdness; It is done under any of the following circumstances: By using force or intimidation; or When the offended party is deprived of reason or otherwise unconscious; or c. (3) When the offended party is under 12 years of age; and The offended party is another person of either sex. (emphasis supplied)[29]

The general rule is that the factual findings of the trial court deserve a high degree of respect and will not be disturbed on appeal in the absence of any clear showing that it overlooked, misapprehended or misapplied some facts or circumstances of weight and substance which can alter the result of the case.[30] We uphold the findings of fact of the RTC, as affirmed by the CA.

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The RTC and CA did not find evidence of the entrance of petitioners penis into the labia of the victims female organ. Nevertheless, BBBs testimony established that petitioner committed lascivious acts on her: BY ATTY. PRINCIPE: (to witness) Q: A: Q: A: Q: A: Q: A. [BBB], do you know accused Ferdinand Navarette? Yes, sir. Also named Clement John Ferdinand Navarette? Yes, sir. Why do you know Clement John Ferdinand Navarette? Because he is the one who did something to me. What do you mean by umano? He placed his penis into my vagina. (pekpek)

Q: A: Q: A: xxx Q: A: Q: A: Q: A:

How many times? Two times, sir. Then he placed his penis to your vagina, what did you feel? I felt pain, sir. xxx xxx

What else happened after Ferdinand Navarette put his penis twice on your vagina which you told the Court you felt pain? He locked me inside the [comfort room] and he took a knife. Now, when you were inside the Comfort Room and you told the Court that he got a knife, what happened next, if any? He stabbed me. Where? (Witness pointing the throat.)

Q: And when you said sinaksak on your throat you mean accused only pointed [to] your throat? xxx COURT:
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xxx

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[All right], witness may answer. (Witness pointing to her throat.)

Q:

And what is the meaning that she wants to convey?

ATTY. TENEZA: Witness holding her throat. ATTY. PRINCIPE: Pointing. Very clear. Q: When you pointed your throat, what do you want to convey [with] the word stab?

ATTY. PRINCIPE: A. Sinaksak. That is, Your Honor. Because this is her interpretation of pointing the knife. xxx xxx

xxx ATTY. PRINCIPE:

After the accused locked you in the [comfort room] with the knife, according to you, what happened next, if any? xxx xxx xxx

Witness: A: Then I went [out] of the [comfort room] when I heard my mother calling me.

ATTY. PRINCIPE: (to the witness) Q: A: Q: And where was your mother at that time? She was outside and waiting for my Kuya [XXX]. When you were called by your mother, according to you, did you approach your mother when hearing that she was calling you?

ATTY. TENEZA:
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It was already answered, Your Honor. ATTY. PRINCIPE : No. COURT: Witness may answer. ATTY. PRINCIPE: (to the witness) Q: A: Q: A: And what did you tell your mother, if any? I embraced her. After embracing your mother, did you tell [her] something if any? She [asked] me [why] I was still watching T.V. when the people of the house were already sleeping. What was your reply to your mama? Because I used to watch T.V. [in] that place. Did you report to your mother what Ferdinand Navarette did to you? Yes, sir.

Q: A: Q: A:

Q: A. Q: A:

How did you tell your mother? I told my mama Binastos ako ni Ferdie. How did you relate that you were binastos ni Ferdie? I told my mama: Mama, Ferdie [placed] his penis on my vagina and then he placed a stick with cotton on my vagina and then he boxed me, on my right side of my eye. How many times were you boxed by Ferdie, the accused? Two (2) times, sir.[31]

Q: A:

The foregoing shows that all the elements of acts of lasciviousness were proved. That BBB was less than twelve years old at the time of the commission of the offense was not disputed. The prosecution established that petitioner intentionally placed his penis in BBBs vagina but without any indication that he was able to penetrate her:
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Victim [BBB] testified that the accused placed his penis into my vagina and [placed] a stick with cotton [in] my vagina but the [specific] part of her vagina where the penis was placed was not indicated. xxx xxx xxx

The Court cannot [assume] without doing violence to the precious jural yardstick but the prosecution must prove and present clear, positive and conclusive evidence of the act complained of particularly that the penis of the accused gained entrance [in] the labia majora of the organ of the victim. Not even in the medical findings and testimony of the NBI Medico-Legal Officer Dr. Noel Minay who conducted physical/genital examinations on the victim could [we] find support to justify an inference that there was entrance of the male organ of the accused within the labia of pudendum.[32]

Both lower courts also found that petitioner poked victims vagina with a stick with cotton and watched a pornographic movie with her.[33] These acts are undoubtedly acts of lasciviousness or lewdness.[34]

The elements of sexual abuse under Section 5 (b) of RA 7610 that must be proven in addition to the elements of acts of lasciviousness are as follows: 1. 2. The accused commits the act of sexual intercourse or lascivious conduct. The said act is performed with a child exploited in prostitution or subjected to other sexual abuse. 3. The child, whether male or female, is below 18 years of age. (Emphasis supplied)[35] Lascivious conduct is defined under Section 2 (h) of the rules and regulations[36] of RA 7610 as: [T]he intentional touching, either directly or through clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks, or the introduction of any object into the genitalia, anus or mouth, of any person, whether of the same or opposite sex, with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual
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desire of any person, bestiality, masturbation, lascivious exhibition of the genitals or pubic area of a person.

The aforestated acts of petitioner undeniably amounted to lascivious conduct under this law.

Petitioner insists that Section 5 (b) of RA 7610 refers only to those who commit the act of sexual intercourse or lascivious conduct with a child exploited in prostitution and argues that this does not apply in this case since the victim is not a child exploited in prostitution.[37]

Petitioners argument is untenable. In People v. Larin (and reiterated in several subsequent cases),[38] we emphasized that the law covers not only a situation in which a child is abused for profit but also one in which a child, through coercion or intimidation, engages in any lascivious conduct.[39] The very title of Section 5, Article III (Child Prostitution and Other Sexual Abuse) of RA 7610 shows that it applies not only to a child subjected to prostitution but also to a child subjected to other sexual abuse. A child is deemed subjected to other sexual abuse when he or she indulges in lascivious conduct under the coercion or influence of any adult.[40] Here, BBB was sexually abused because she was coerced or intimidated by petitioner (who poked her neck with a knife)[41] to indulge in lascivious conduct. Hence, the prosecution was able to prove beyond reasonable doubt that petitioner committed acts of sexual abuse against BBB. The RTC found BBBs testimony to be clear, candid, and straightforward. Her testimony was worthy of belief since she was young and had no illmotive to falsely testify and impute a serious crime against the accused.[42] In cases of acts of lasciviousness, the lone testimony of the offended party, if credible, is sufficient to establish the guilt of the accused.[43] Moreover, courts are inclined to lend credence to the testimony of children of tender years. The revelation of an innocent child whose chastity has been abused deserves full credit, as her
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willingness to undergo the trouble and the humiliation of a public trial is an eloquent testament to the truth of her complaint.[44] In so testifying, she could have only been impelled to tell the truth.[45] The trial courts evaluation of the testimonies of witnesses is given great respect by the appellate court in the absence of proof that it was arrived at arbitrarily or that the trial court overlooked material facts.[46] The rationale behind this rule is that the credibility of a witness can best be determined by the trial court since it has the direct opportunity to observe the candor and demeanor of the witnesses at the witness stand and detect if they are telling the truth or not.[47] We will not interfere with the trial courts assessment of the credibility of witnesses. In the face of the serious accusation against him, petitioner could only interpose denial as defense. Denial is an inherently weak defense and cannot prevail over the positive and categorical identification provided by the complainant. Denial, if unsubstantiated by clear and convincing evidence, is a self-serving assertion that deserves no weight in law.[48] As between the positive declaration of the prosecution witness and the negative statement of the accused, the former deserves more credence.[49] The lower courts also correctly disbelieved the corroborating testimonies of petitioners aunt and sister.[50] Petitioner asserts that the RTC should not have given evidentiary weight to the inconsistent and contradictory testimonies of the prosecution witnesses. He urges this Court to apply the Latin maxim falsus in unus, falsus in omnibus (false in part, false in everything). We disagree. We have stated that: [T]he maxim or rule falsus in [unus], falsus in omnibus does not lay down a categorical test of credibility. It is not a positive rule of law or of universal application. It should not be applied to portions of the testimony corroborated by other evidence, particularly where the false portions could be innocent mistakes. Moreover, the rule is not mandatory but merely sanctions a disregard of the testimony of a witness if the circumstances so warrant. To completely disregard all
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the testimony of a witness on this ground, his testimony must have been false as to a material point, and the witness must have a conscious and deliberate intention to falsify a material point.[51]

Furthermore, it should be borne in mind that even the most candid witness oftentimes makes mistakes and confused statements. Instead of eroding the effectiveness of the evidence, such imperfections and discrepancies in the testimony can in fact be considered as signs of veracity.[52] Aside from the fact that it is very difficult to give a mechanical and accurate account of a traumatic and horrifying experience,[53] the victim here was a mere five-year old girl when she was put on the witness stand. We should not expect a five-year old child to explain with exact precision the nature of the acts done to her, given her naivet and still undeveloped vocabulary and command of language.[54] Despite this limitation, however, the victim never wavered in her claim that petitioner molested her.

In sum, we find petitioner guilty beyond reasonable doubt of acts of lasciviousness under Article 336 of the RPC in relation to Section 5 (b), Article III of RA 7610. WHEREFORE, the petition is hereby DENIED. The September 29, 2000 decision of the Court of Appeals affirming the decision of the Regional Trial Court of Valenzuela, Branch 171, in Criminal Case No. 5302-V-96 finding petitioner guilty beyond reasonable doubt of acts of lasciviousness and sentencing him to suffer imprisonment of twelve years and one day of reclusion temporal, as minimum, to sixteen years of reclusion temporal, as maximum, as well as to pay P20,000 moral damages and P10,000 fine is AFFIRMED. Costs against petitioner. SO ORDERED.

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Republic of the Philippines Supreme Court Manila THIRD DIVISION G.R. No. 186469 June 13, 2012

THE PEOPLE OF THE PHILIPPINES, Plaintiff-appellee, -versusJOVER MATIAS y DELA FUENTE, Accused-appellant. x------------------------------------------------------------------------------------x RESOLUTION PERLAS-BERNABE, J.: This resolves the appeal from the August 19, 2008 Decision[1] of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 02781 filed by appellant Jover Matias yDela Fuente which affirmed his conviction for the crime of rape under Sec. 5 (b), Article III of Republic Act (RA) No. 7610.[2] The Factual Antecedents Appellant Jover Matias y Dela Fuente and private complainant AAA[3] were neighbors at Sto. Nio St., Barangay San Antonio, Quezon City. In the evening of June 6, 2004, AAA, a minor, having been born on April 23, 1991, was on her way to the vegetable stall ( gulayan) of a certain Manuela to buy something when, all of a sudden, appellant pulled her towards a house that was under construction. There, he forced her to lie on a bamboo bed ( papag), removed her shorts and underwear, and inserted first, his finger, and then his penis into her vagina. Appellant threatened to kill her if she should report the incident to anyone. When AAA arrived home, she narrated to her mother and aunt what appellant did to her. Together, they proceeded to the barangay to report the incident and, thereafter, to the Baler District Police Station to file a complaint. A physical examination was conducted by Police Chief Inspector Pierre Paul Figeroa Carpio upon AAA, who was found to have [d]eep -healed lacerations at 3 and 7 oclock positions and was in a non-virgin state physically at the time of examination. Subsequently, appellant was charged with rape under Article 266-A of the Revised Penal Code (RPC) in an Amended Information[4] dated July 16, 2004.

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In defense, appellant claimed that in the evening of the incident, he and his uncle, Romeo Matias, were doing construction work at the house of his aunt, also located at Sto. Nino St., Barangay San Antonio, Quezon City. He was therefore surprised when two policemen arrested him at around 6:30 in the evening of even date and detained him at the Baler Police Station. The RTC Ruling In its April 19, 2007 Decision,[5] the RTC convicted appellant for rape under Sec. 5 (b), Article III of RA 7610 and imposed the penalty of reclusion perpetua. The RTC likewise directed him to pay AAA the amount of P50,000 as civil indemnity and P30,000 as moral damages. In convicting appellant, the RTC gave full credence to AAA's testimony, which was straightforward and positive. On the other hand, it found appellants defenses of denial and alibi as weak, taking into consideration that his aunt's house where he was allegedly doing construction work was just a few meters away from the vegetable stall, clearly making it possible for him to be at the locus criminis at the time of the incident. The CA Ruling In its assailed Decision,[6] the CA affirmed the RTC Decision in toto, finding no compelling reason to depart from its findings and conclusions. The appellate court held that if the RTC found AAA's testimony to be credible, logical and consistent, then it should be given great respect, as the RTC had the ability to observe firsthand the demeanor and deportment of the witnesses on stand. Moreover, for appellant's alibi to prosper, he should be able to show that he was a great distance away from the place of the incident and that it was impossible for him to be there or within its immediate vicinity at the time of the commission of the crime. The CA ruled that it is highly unlikely for a young girl to fabricate a story that would destroy her reputation and her familys life and endure the discomforts of trial. Issue Before The Court The sole issue to be resolved in this appeal is whether the CA committed reversible error in affirming in toto the Decision of the RTC, which convicted appellant of rape under Sec. 5 (b), Article III of RA 7610. The Court's Ruling Sec. 5 (b), Article III of RA 7610 provides: Section 5. Child Prostitution and Other Sexual Abuse. - Children, whether male or female, who for money, profit, or any other consideration or due to the coercion or
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influence of any adult, syndicate or group, indulge in sexual intercourse or lascivious conduct, are deemed to be children exploited in prostitution and other sexual abuse. The penalty of reclusion temporal in perpetua shall be imposed upon the following: its medium period to reclusion

(a) x x x (b) Those who commit the act of sexual intercourse or lascivious conduct with a child exploited in prostitution or subject to other sexual abuse; xxx[7] In the case of People v. Pangilinan,[8] which affirmed the doctrines enunciated in the cases of People v. Dahilig[9] and People v. Abay,[10] the Court explained: Under Section 5 (b), Article III of RA 7610 in relation to RA 8353, if the victim of sexual abuse is below 12 years of age, the offender should not be prosecuted for sexual abuse but for statutory rape under Article 266-A(1)(d) of the Revised Penal Code and penalized with reclusion perpetua. On the other hand, if the victim is 12 years or older, the offender should be charged with either sexual abuse under Section 5(b) of RA 7610 or rape under Article 266-A (except paragraph 1[d]) of the Revised Penal Code. However, the offender cannot be accused of both crimes for the same act because his right against double jeopardy will be prejudiced. A person cannot be subjected twice to criminal liability for a single criminal act. Likewise, rape cannot be complexed with a violation of Section 5(b) of RA 7610. Under Section 48 of the Revised Penal Code (on complex crimes), a felony under the Revised Penal Code (such as rape) cannot be complexed with an offense penalized by a special law. In this case, the RTC, as affirmed by the CA, convicted appellant for rape under Sec. 5 (b), Article III of RA 7610 and sentenced him to reclusion perpetua,upon a finding that AAA was a minor below 12 years old at the time of the commission of the offense on June 6, 2004. However, a punctilious scrutiny of the records shows that AAA was born on April 23, 1991, which would make her 13 years old at the time of the commission of the offense on June 6, 2004. Thus, appellant can be prosecuted and convicted either under Sec. 5 (b), Article III of RA 7610 for sexual abuse, or under Article 266-A of the RPC, except for rape under paragraph 1(d).[11] It bears pointing out that the penalties under these two laws differ: the penalty for sexual abuse under Sec. 5 (b), Article III of RA 7610 is reclusion temporalmedium to reclusion perpetua, while rape under Article 266-A of the RPC is penalized with reclusion perpetua. On this score, it is worth noting that in its April 19, 2007 Decision,[12] the RTC concluded that AAA was the victim of sexual abuse labeled 'rape',[13] considering the established fact that
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there was sexual intercourse between him and AAA. Thus, appellant's conviction was clearly under Sec. 5 (b), Article III of RA 7610 or sexual abuse and not for rape under Article 266-A of the RPC. In the light of all the foregoing, there is a need to modify the penalty imposed upon appellant. Following the pronouncement in the case of Malto v. People[14] for sexual abuse, and in the absence of any mitigating or aggravating circumstances, the Court finds it appropriate to impose the penalty of reclusion temporal in its maximum period, which has the range of 17 years, 4 months and 1 day to 20 years. Applying the Indeterminate Sentence Law,[15] therefore, the maximum term of the indeterminate penalty shall be that which could be properly imposed under the law, which is 17 years, 4 months and 1 day to 20 years of reclusion temporal, while the minimum term shall be within the range next lower in degree, which is prision mayor in its medium period to reclusion temporal in its minimum period, or a period ranging from 8 years and 1 day to 14 years and 8 months. Similarly, the award of moral damages is increased from P30,000.00 to P50,000.00, pursuant to the Malto case. WHEREFORE, the appeal is DISMISSED. The August 19, 2008 Decision of the Court of Appeals in CA-G.R. CR-H.C. No. 02781 finding appellant Jover Matias y Dela Fuente guilty beyond reasonable doubt of sexual abuse under Section 5 (b), Article III of Republic Act No. 7610 is AFFIRMED withMODIFICATIONS as to penalty and the amount of damages awarded. Appellant is sentenced to suffer the penalty of 12 years of prision mayor as minimum to 17 years, 4 months and 1 day of reclusion temporal as maximum, and ordered to pay the private complainant the amount of P50,000.00 as moral damages. The rest of the assailed Decision stands. SO ORDERED.

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ILLEGAL POSSESSION OF FIREARMS THIRD DIVISION [G.R. Nos. 136149-51. September 19, 2000] PEOPLE OF THE PHILIPPINES, appellee, vs. WALPAN LADJAALAM y MIHAJIL alias WARPAN, appellant. DECISION PANGANIBAN, J.: Republic Act No. 8294 penalizes simple illegal possession of firearms, provided that the person arrested committed no other crime. Furthermore, if the person is held liable for murder or homicide, illegal possession of firearms is an aggravating circumstance, but not a separate offense. Hence, where an accused was convicted of direct assault with multiple attempted homicide for firing an unlicensed M-14 rifle at several policemen who were about to serve a search warrant, he cannot be held guilty of the separate offense of illegal possession of firearms. Neither can such unlawful act be considered to have aggravated the direct assault.

The Case Walpan Ladjaalam y Mihajil, also known as Warpan, appeals before us the September 17, 1998 Decision[1] of the Regional Trial Court (RTC) of Zamboanga City (Branch 16), which found him guilty of three out of the four charges lodged against him. Filed against appellant were four Informations,[2] all signed by Assistant Regional State Prosecutor Ricardo G. Cabaron and dated September 25, 1997. The first Information[3]was for maintaining a den for the use of regulated drugs. It reads as follows: That on or about September 24, 1997, in the City of Zamboanga, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, Walpan Ladjaalam being then the owner of a residential house located at Rio Hondo,[4] this City, conspiring and confederating together, mutually aiding and assisting x x x his co-accused wife Nur-in Ladjaalam and Ahmad Sailabbi y Hajaraini, did then and there wilfully, unlawfully and feloniously, maintain said house as a den, where regulated drug [was] used in any form.[5] The second Information[6] charged appellant with illegal possession of firearms and ammunition. We quote it below: That on or about September 24, 1997, in the City of Zamboanga, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together, mutually aiding and assisting with one another, without any justifiable reason or purpose other than to use it in the commission of crime, did then and there, wilfully, unlawfully, and feloniously have in their possession and under their custody and control, the following
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weapons, to wit: one (1) M14 rifle with SN 1555225 with magazines and seven (7) rounds of live ammunition; two (2) magazines with twenty (20) and twenty[-one] (21) rounds of live [ammunition]; one (1) homemade caliber .38 revolver with five (5) live ammunition; one (1) M-79 (single) rifle with pouch and with five (5) empty shell[s]; one (1) home made caliber .38 with SN311092 with five live ammunition and one empty shell of [a] cal. 38 x x x Smith and Wesson; two (2) .38 Caliber paltik revolver with Serial Number 311092 and one defaced M79 grenade launcher paltik, without first having obtained the necessary license and or permit therefor from authorities concerned, in flagrant violation of the aforementioned law.[7] The third Information,[8] for multiple attempted murder with direct assault, was worded thus: That on or about September 24, 1997, in the City of Zamboanga, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused being then armed with M-14 Armalite Rifles, M-16 Armalite Rifles and other assorted firearms and explosives, conspiring and confederating together, mutually aiding and assisting x x x one another and with intent to kill, did then and there wilfully, unlawfully and feloniously try and attempt to kill SPO1 WILLIAM B. JONES, JR., PO3 ENRIQUE C. RIVERA[,] SPO1 AMADO A. MIRASOL, JR., and SPO1 RICARDO J. LACASTESANTOS, in the following manner, to wit: by then and there firing their M-14 x x x Armalite Rifles, M-16 Armalite Rifles and other assorted firearms and explosives, aimed and directed at the fatal parts of the bodies of the above-named police officers, well known to the accused as members of the Philippine National Police, Zamboanga City Police Office, and as such, agents of a person in authority, who at the time of the attack were engaged in the performance of their duties, that is, on the occasion when said officers were about to serve the Search Warrant legally issued by the Regional Trial Court, this City, to the person of the accused thus commencing the commission of crime of multiple murder directly by overt acts, and if the accused did not accomplish their unlawful purpose, that is, to kill the above-named Police Officers, it was not by reason of their own voluntary desistance but rather because of the fact that all the above-named police officers were able to seek cover during the firing and were not hit by the bullets and explosives fired by the accused and also by the fact said police officers were able to wrestle with two (2) of the accused namely: Walpan Ladjaalam y Mihajil a.k.a. Warpan and Ahmad Sailabbi y Hajairani, who were subdued and subsequently placed under arrest; whereas accused PO2 Nurhakim T. Hadjula was able to make good his escape and has remained atlarge.[9] In the fourth Information, appellant was charged with illegal possession of drugs.[10] On December 21, 1997, the cases against Nur-in Ladjaalam and Ahmad Sailabbi y Hajaraini were dismissed upon motion of the Office of the City Prosecutor, which had conducted a reinvestigation of the cases as ordered by the lower court. The accused were consequently released from jail. The arraignment of appellant on all four (4) charges took place on January 6, 1998, during which he entered a plea of not guilty.[11] After pretrial, the assailed Decision was rendered, the dispositive part of which reads: WHEREFORE, WARPAN the Court finds accused WALPAN LADJAALAM y MIHAJIL a.k.a.

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1. in Criminal Case No. 14636, GUILTY BEYOND REASONABLE DOUBT of Violation of Section 15-A, Article III, of Republic Act No. 6425, otherwise known as the Dangerous Drugs Act of 1972, as amended, and SENTENCES said accused to the penalty of RECLUSION PERPETUA and to pay a fine of FIVE HUNDRED THOUSAND (P500,000.00) and to pay the costs; 2. In Criminal Case No. 14637, NOT GUILTY of Violation of Section 16, Article III, in relation to Section 21, Article IV, of Republic Act No. 6425, otherwise known as the Dangerous Drugs Act of 1972, as amended, and ACQUITS him of said crime with costs de oficio; 3. in Criminal Case No. 14638, GUILTY BEYOND REASONABLE DOUBT of the crime of Illegal Possession of Firearm and Ammunition penalized under Presidential Decree No. 1866, as amended by Republic Act. No. 8294, and SENTENCES said accused to suffer an indeterminate penalty of SIX (6) YEARS of prision correccional as minimum to EIGHT (8) YEARS of prision mayor as maximum and to pay a fine [of] THIRTY THOUSAND (P30,000.00) and pay the costs; 4. in Criminal Case No. 14639, GUILTY BEYOND REASONABLE DOUBT of the crime of Direct Assault with Multiple Attempted Homicide and SENTENCES said accused to an indeterminate penalty of TWO (2) YEARS and FOUR (4) MONTHS of prision correccional as minimum to SIX (6) YEARS of prision correccional as maximum and to pay a fine of ONE THOUSAND (P1,000.00)and to pay the costs. (emphasis in the original) Hence, this appeal.[12]

The Facts Prosecutions Version In its Brief,[13] the Office of the Solicitor General presents the facts in this wise: At 1:45 p.m. of September 24, 1997, PO3 Allan Marcos Obut filed an application for the issuance of a search warrant against appellant, his wife and some John Does (Exh. C). After the search warrant was issued about 2:30 p.m. of the same day, a briefing was conducted inside the office of the Anti-Vice/Narcotics Unit of the Zamboanga City Police Office in connection with the service of the search warrant.The briefing was conducted by SPO2 Felipe Gaganting, Chief of the AntiVice/Narcotics Unit. During the briefing, PO3 Renato Dela Pea was assigned as presentor of the warrant. SPO1 Ricardo Lacastesantos and PO3 Enrique Rivera were designated to conduct the search. Other policemen were assigned as perimeter guards (TSN, March 3, 1998, pp. 33-36). After the briefing, more than thirty (30) policemen headed by Police Superintendent Edwin Soledad proceeded to the house of appellant and his wife at Rio Hondo on board several police vehicles (TSN, March 4, 1998, p. 32; April 22, 1998, p. 54). Before they could reach appellants house, three (3) persons sitting at a nearby store ran towards the house shouting, [P]olice, raid, raid (Ibid., March 3, 1998, pp. 41, 43-44; April 23, 1998, p. 4). When the policemen were about ten (10) meters from the main gate of the house, they were met by a rapid burst of gunfire coming from the second floor of the house.There was also gunfire at the back of the house (Ibid., March 5, 1998, pp. 14-16).
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SPO1 Mirasol, SPO2 Lacastesantos, PO3 Rivera, and PO3 Dela Pea who were with the first group of policemen saw appellant fire an M14 rifle towards them. They all knew appellant. When they were fired upon, the group, together with SPO2 Gaganting, PO3 Obut and Superintendent Soledad, sought cover at the concrete fence to observe the movements at the second floor of the house while other policemen surrounded the house (Ibid., March 4, 1998, pp. 50-51). In front of the house was an extension building connected to the concrete fence (Ibid., pp. 45-46, 57-59, 73-76). Gaganting, Mirasol, Lacastesantos, Gregorio, and Obut entered the door of the extension building. Gaganting opened the main (steel) gate of the house. The other members of the team then entered. Lacastesantos and Mirasol entered the house through the main door and went inside the sala of the ground floor while other policemen surrounded the house. Two (2) old women were in the sala together with a young girl and three (3) children. One of the old women took the children to the second floor while the young girl remained seated at the corner (Ibid., pp. 19-21). Lacastesantos and Mirasol proceeded to the second floor where they earlier saw appellant firing an M14 rifle at them through the window. While they were going upstairs, appellant noticed their presence.He went inside the bedroom and, after breaking and removing the jalousies, jumped from the window to the roof of a neighboring house. Seeing this, Mirasol rushed downstairs and asked help from the other members of the raiding team to arrest appellant. Lacastesantos went to the second floor and shouted to the policemen outside not to fire in the direction of the second floor because there were children.Mirasol and SPO1 Cesar Rabuya arrested appellant at the back of his house after a brief chase (Ibid., pp. 21-23). At the second floor, Lacastesantos saw an M14 rifle (Exh. B-3) with magazine on top of the sofa at the sala on the second floor (Ibid., P. 27). The rifle bore Serial No. 1555225. He removed the magazine from the rifle and the bullet inside the chamber of the rifle. He counted seventeen (17) live ammunition inside the magazine. He saw two (2) more M14 rifle magazines on the sofa, one with twenty (20) live ammunition (Exh. G-3) and another with twenty-one (21) live ammunition (Exh. G-4). He likewise saw three (3) M16 rifle magazines (Exh. G-2) in a corner at the second floor (TSN, March 5, 1998, pp. 23-32, 53-57). After Lacastesantos and Mirasol entered appellants house, Rivera, Dela Pea, Gregorio and Obut followed and entered the house. After identifying themselves as members of the PNP AntiVice/Narcotics Unit, Obut presented to the old women a copy of the search warrant. Dela Pea and Rivera then searched appellants room on the ground floor in the presence of Punong Barangay Elhano (TSN, March 3, 1998, pp. 41-43). On top of a table was a pencil case (Exh. J) with fifty (50) folded aluminum foils inside (Exhs. J-1 to J-50), each containing methamphetamine hydrochloride or shabu. Other items were found during the search, namely, assorted coins in different denominations (Exh. W; TSN, April 28, 1998, pp. 23-25), one (1) homemade .38 caliber revolver (Exh. B-2) with five (5) live [ammunition], one (1) M79 single rifle with [a] pouch containing five (5) empty shells of an M79 rifle (Exh. B-4), and one (1) empty shell of an M14 rifle (TSN, April 23, 1998, pp. 30-32). Rino Bartolome Locson was an informer of the Anti-Vice/Narcotics Unit of the Zamboanga Police. [O]n the morning of September 24, 1997, he was instructed by SPO2 Gaganting to go to
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appellants house to buy shabu. Locson knew appellant as a seller of shabu (TSN, April 22, 1998, p. 5) and had been to appellants house about fifteen (15) times be fore. He went to Rio Hondo and arrived at appellants house at 3:20 p.m. He bought P300.00 worth of shabu from appellant. The latter got three (3) decks of shabu from his waist bag. Appellant instructed Locson to go behind the curtain where there was a table. There were six (6) persons already smoking. There was a lighted kerosene lamp made of a medicine bottle placed on the table. They asked Locson to smoke shabu and Locson obliged.He placed the three (3) decks of shabu he bought on the table (Ibid., pp. 8-15). While they were smoking shabu, Locson heard gunfire coming from appellants house. They all stood and entered appellants compound but were instructed to pass [through] the other side. They met appellant at the back of his house. Appellant told them to escape because the police are already here. They scampered and ran away because there were already shots. Locson jumped over the fence and ran towards the seashore. Upon reaching a place near the Fisheries School, he took a tricycle and went home (Ibid., pp. 17-19). The following day, September 25, 1997, he went to the police station and executed an affidavit (Exh. M) narrating what transpired at appellants house [o]n the afternoon of September 24, 1997. After the search and before returning to the police station, P03 Dela Pea prepared a Receipt for Property Seized (Exh. P & 3) listing the properties seized during the search. The receipt was signed by Dela Pea as the seizure officer, and by Punong Barangay Hadji Hussin Elhano and radio reporter Jun Cayona as witnesses. A copy of the receipt was given to appellant but he refused to acknowledge the properties seized (TSN, April 23, 1998, pp. 11-12). An examination conducted by Police Inspector Mercedes D. Diestro, Forensic Chemist of the PNP Crime Laboratory Service Office 9, on the paraffin casts taken from both hands of appellant yielded positive for gunpowder nitrates (Exh. A-3), giving rise to the possibility that appellant had fired a gun before the examination (TSN, March 3, 1998, p. 11). Gunpowder residue examinations conducted on September 26, 1997 showed that the following firearms were fired (Exh. B-5): a .38 caliber revolver (homemade) with Serial No. 311092 (Exh. B-1), another .38 caliber revolver (homemade) without a serial number (Exh. B-2), a Cal. 7.62 mm M14 U.S. rifle with Serial No. 1555225 (Exh. B-3), and an M79 rifle without a serial number (Exh. B-4). They were fired within five (5) days prior to the examination (TSN, March 3, 1998, pp. 16-21). With respect to the crystalline substances, an examination conducted by Police Inspector Susan M. Cayabyab, likewise a Forensic Chemist of the PNP Crime Laboratory Service Office 9, on the fifty (50) pieces of folded aluminum foils each containing white crystalline granules with a total weight of 1.7426 grams (Exh. J-1 to J-50) yielded positive results for the presence of methamphetamine hydrochloride (shabu) (Exh. L). However, the examination of one (1) crystalline stone weighing 83.2674 grams (Exh. K) yielded negative results for the presence of methamphetamine hydrochloride (Exh. L). The records of the Regional Operation and Plans Division of the PNP Firearm and Explosive Section show that appellant had not applied/filed any application for license to possess firearm and ammunition or x x x been given authority to carry [a] firearm outside of his residence (Exh. X)[14]
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Defenses Version Appellant Ladjaalam agrees with the narration of facts given by the lower court.[15] Hence, we quote the pertinent parts of the assailed Decision: Accused Walpan Ladjaalam y Mihajil a.k.a. Warpan, 30 years old, married, gave his occupation as smuggling (tsn, p. 2, May 4, 1998). He used to go to Labuan in Malaysia and bring cigarettes to the Philippines without paying taxes (tsn, pp. 40-41, id). He said that his true name [was] Abdul Nasser Abdurakman and that Warpan or Walpan Ladjaalam [was] only his alias. However, he admitted that more people kn[e]w him as Walpan Ladjaalam rather than Abdul Nasser Abdurakman (tsn. pp. 39-40; 46-47, id). He testified that [o]n the afternoon of September 24, 1997, when he was arrested by the police, he was sleeping in the house of Dandao, a relative of his wife. He was alone. He slept in Dandaos house and not in his house because they ha[d] a sort of a conference as Dandaos daughter was leaving for Saudi Arabia. He noticed the presence of policemen in his neighborhood at Aplaya, Rio Hondo when he heard shots. He woke up and went out of the house and that was the time that he was arrested. He said he was arrested xxx [at] the other side of my house; at the other side of the fence where I was sleeping. xxx. At the back of my house (tsn, p. 7, id.). He does not know who arrested him considering that the one who arrested me does not have nameplate. He was arrested by four (4) persons. Not one of those who arrested him testified in Court. He was handcuffed and placed inside a jeep parked at Rio Hondo Elementary School. According to him, he did not fire a gun at the policemen from [t]he second floor of his house. He said the policemen [were] the one[s] who fire[d] at us (tsn, p. 5, id.). If he fired a gun at the policemen for sure they [would] die [b]ecause the door is very near x x x the vicinity of my house. He does not own the M14 rifle (Exh. B-3) which according to policemen, he used in firing at them. The gun does not belong to him. He does not have a gun like that (tsn, p. 15, id.). A policeman also owns an M14 rifle but he does not know the policeman (tsn, pp. 16-17, id). He said that the M79 rifle (Exh. B-4), the three (3) empty M16 rifle magazines (Exh. G; G-1 to G-2), the two (2) M14 magazines with live ammunition (Exh. G -3; G-4); the two (2) caliber .38 revolvers (Exhs. B-1; B-2), the fifty (50) aluminum foils each containing shabu (Exhs. J-1 to J-50) placed inside a pencil case (Exh. J, the assorted coins placed inside a blue bag (Exh. W) and the white crystalline stone (Exh. K) all do not belong to him. He said that the policemen just produced those things as their evidence. The firearms do not belong to him. They were brought by the policemen (tsn, p. 43, May 4, 1998). Regarding the blue bag containing assorted coins, he said: that is not ours, I think this (is) theirs, xxx they just brought that as their evidence (tsn, pp. 15-24, id.) Walpan Ladjaalam declared there were occupants who were renting his extension house. He affirmed that he owns that house. Four (4) persons were staying in the extension house. He could only recognize the husband whose name is Momoy. They are from Jolo. They left the place already because they were afraid when the police raided the place. (tsn, pp. 8-10, May 4, 1998). He does not know prosecution witness Rino Locson y Bartolome. Although Locson recognized him, in his case he does not know Locson and he does not recognize him (tsn, p.11, id). He did not sell anything to Locson and did not entertain him. He is not selling shabu but he knows for a fact that there are plenty of person who are engaged in selling shabu in that place , in that area known as Aplaya, Rio Hondo. One of them is Hadji Agbi (tsn, pp.11-14, id).

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After his arrest Walpan Ladjaalam was brought to the police station where he stayed for one day and one night before he was transferred to the City jail. While at the police station, he was not able to take a bath. He smokes two packs of cigarette a day. While he was at the police station, he smoked [a] cigarette given to him by his younger sister. He lighted the cigarettes with [a] match. From the police station, he was brought to the PNP Regional Office at R.T. Lim Boulevard where he was subject to paraffin examination (tsn, pp. 24-26, May 4, 1998). During the raid conducted on his house, his cousin Boy Ladjaalam, Ating Sapadi, and Jecar (Sikkal) Usman, the younger brother of his wife were killed. Walpan Ladjaalam said that he saw that it was the policeman who shot them[,] only I do not know his name . They were killed at the back of his house. He said that no charges were filed against the one responsible for their death (tsn, pp. 30-33- May 4, 1998). Anilhawa Ahamad, more or less 80 years old, a widow was in the house of Walpan Ladjaalam whom he calls Hadji Id at the time the police raided the house. She is the mother of Ahma Sailabbi. She was together with Babo Dandan, two small children and a helper when soldiers entered the house. (W)hen they arrived, they kept on firing (their guns) even inside the house (tsn, p.5, May 5, 1998). They were armed with short and long firearms. They searched the house and scattered things and got what they wanted. They entered the room of Walpan Ladjaalam. They tried to open a bag containing jewelry.When Anilhawa tried to bring the bag outside the room, they grabbed the bag from her and poked a gun at her. At that time Walpan Ladjaalam was not in the house. Ahamad Sailabbi was also not in the house. A Search Warrant was shown to Anilhawa after the search was conducted and just before the policemen left the place. Anilhawa Ahamad said that it was already late in the afternoon[;] before they left that was the time the Search Warrant (was) given to us by xxx Barangay Captain Hussin Elhano (tsn, pp.6-8, May 5, 1998). Barangay Chairman Elhano arrived already late in the afternoon, almost sundown (tsn, p. 9, id). Anilhaw declared that aside from a bag containing jewelry and a bag full of money, she had not seen anything else that was taken from Walpan Ladjaalams house (tsn, pp. 9-12, id). Akmad (Ahmad) Sailabbi, 37 years old, married testified that about 4:00 oclock [o]n the afternoon of September 24, 1997, ha was standing in front of his house when policemen arrived and immediately arrested him. He was about to go to the City Proper to buy articles he was intending to bring to Sabah. He had around P50,000.00 placed inside a waist bag tied around his waist. The policemen told him to lie down in prone position and a policeman searched his back. They pulled his waist bag and took his DiaStar wrist watch. He was shot three times and was hit on the forehead leaving a scar. His injury was not treated. He was taken to the police station where he was detained for one day and one night. He was detained at the City Jail for three months and five days after which he was released (tsn, pp. 25-29, May 5, 1998). Melba Usma, 20 years old, a widow, testified that [o]n the afternoon of September 2 4, 1997, she was in the house of her parents lying together with her husband Sikkal Usma. There is only one house between her parents house and the house of Walpan Ladjaalam. Her husband Sikkal Usman is the brother of Nur-in Ladjaalam, Walpans wife. When Melba heard shots, she went downstairs. A policeman was looking for her husband. The policeman called her husband. When her husband went down, he was instructed by the policeman to lie down in prone position. Then the policeman shot her husband. The policeman had two other companions who also shot her husband while he was lying down in prone position (tsn, pp.2-7, May 5, 1998).
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Murkisa Usman, 30 years old, married, declared that [o]n the afternoon of September 24, 1997, she was sitting at the door of her house watching her children playing when a motorcyle, driven by a person, stopped near her house. The driver was Gaganting whom she called a soldier. He went down from his motorcycle, pulled a gun and poked it at Murkisa. Murkisa stood up and raised her hands. She got her children and when she was about to enter the room of her house, Gaganting again poked a gun at her and there was a shot. As a result of firing, three persons died, namely, Sikkal Usman, Boy Ladjaalam and Atip Sapali Sali (tsn, pp. 8-10, May 5, 1998). Barangay Captain Hadji Hussin Elhano, 51 years old, testified that about 4:00 o clock [o]n the afternoon of September 24, 1997, he was fetched by two policemen at Catabangan where he was attending a seminar. Because of traffic along the way, they arrived at the Rio Hondo already late in the afternoon. He saw policemen were already inside the house. Upon entering the gate, he saw Walpan at the gate already handcuffed. Walpan called him but the police advised him not to approach Walpan. The search was already over and things were already taken inside the house. When he went inside the house, he saw the things that they (policemen) searched, the firearms and the shabu (tsn, p. 17. May 8, 1998). He did not see the Search Warrant. What was shown to him were the things recovered during the search which were being listed. They were being counted and placed on a table. Upon seeing the things that were recovered during the search, I just signed the receipt (Exh. P; P-1) of the things x x x taken during the search (tsn, pp. 17-18. May 8, 1998). He saw three dead bodies at the side of the fence when he went to the other side of the house. The three persons were killed outside the fence of Walpan Ladjaalam (tsn, p. 18, id).[16]

The Trial Courts Ruling The trial court observed that the house of appellant was raided on September 24, 1997 by virtue of Search Warrant No. 20 issued on the same day. However, the lower court nullified the said Warrant because it had been issued for more than one specific offense,[17] in violation of Section 3, Rule 126 of the Rules of Court.[18] The court a quo ruled: It should be stated at the outset that Search Warrant No. 20 is totally null and void because it was issued for more than one specific offense x x x contrary to Section 3, Rule 1[2]6 of the Rules of Court which provides that A search warrant shall not issue but upon probable cause in connection with one specific offense xxx. In Tambasan vs. People, 246 SCRA 184 (1995), the Supreme Court ruled that a search warrant for more than one offense - a scatter shot warrant - violates Section 3, Rule 126 of the [R]evised Rules of Court and is totally null and void.[19] (emphasis in the original) Nevertheless, the trial court deemed appellants arrest as valid. It emphasized that he had shot at the officers who were trying to serve the void search warrant. This fact was established by the testimonies of several police officers,[20] who were participants in the raid, and confirmed by the laboratory report on the paraffin tests conducted on the firearms and appellant.[21] Additionally, the judge noted that Appellant Ladjaalam, based on his statements in his Counter Affidavit, impliedly contradicted his assertions in open court that there had been no exchange of gunfire during the raid.[22] The trial court concluded that the testimonies of these officers must prevail over appellants narration that he was not in his house when the raid was conducted.
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Prescinding from this point, the court a quo validated the arrest of appellant, reasoning thus: Under the circumstances, the policemen had authority to pursue and arrest Walpan Ladjaalam and confiscate the firearm he used in shooting at the policemen and to enter his house to effect said arrest and confiscation of the firearm. Under Rule 113, Section 5 (a), of the Rules of Court, A peace officer or a private person may, without a warrant, arrest a person xxx (w)hen in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense. An offense is committed in the presence or within the view of an officer, within the meaning of the rule authorizing an arrest without a warrant, when the officer sees the offense, although at a distance, or hears the disturbances created thereby and proceeds at once to the scene thereof. At the time the policemen entered the house of accused Walpan Ladjaalam after he had fired shots at the policemen who intended to serve the Search Warrant to him, the accused was engaged in the commission of a crime, and was pursued and arrested after he committed the crime of shooting at the policemen who were about to serve the Search Warrant.[23] As a consequence of the legal arrest, the seizure of the following was also deemed valid: the M14 rifle (with a magazine containing seventeen live ammunition)[24] used by appellant against the police elements, two M14 magazines, and three other M16 rifle magazines.[25] The trial court observed that these items were in plain view of the pursuing police officers. Moreover, it added that these same items were evidence [of] the commission of a crime and/or contraband and therefore, subject to seizure[26] since appellant had not applied for a license to possess firearm and had not been given authority to carry firearm outside his residence.[27] For being incredible and unsupported by evidence, appellants claim that the items that were seized by the police officers had been planted was disbelieved by the trial court. It ruled that if the police officers wanted to plant evidence to incriminate him, they could have done so during the previous raids or those conducted after his arrest. To its mind, it was unbelievable that they would choose to plant evidence, when they were accompanied by the barangay chairman and a radio reporter who might testify against them. It then dismissed these allegations, saying that frame-up, like alibi, was an inherently weak defense.[28] The trial court also convicted the accused of the crime of maintaining a drug den. It reasoned as follows: The testimony of Rino Bartolome Locson, corroborated by SPO1 Ricardo Lacastesantos and SPO1 Amado Mirasol, Jr. clearly established that Walpan Ladjaalam operated and maintained a drug den in his extension house where shabu or methamphetamine hydrochloride, a regulated drug, was sold, and where persons or customers bought and used shabu or methamphetamine hydrochloride by burning the said regulated drug and sniffing its smoke with the use of an aluminum foil tooter. A drug den is a lair or hideaway where prohibited or regulated drugs are used in any form or are found. Its existence [may be] proved not only by direct evidence but may also be established by proof of facts and circumstances, including evidence of the general reputation of the house, or its general reputation among police officers.The uncorroborated testimony of accused Walpan Ladjaalam a.k.a. Warpan that he did not maintain an extension house or a room where drug users who allegedly buy shabu from him inhales or smokes shabu cannot prevail over the testimonies of Locson, SPO1 Lacastesantos, and SPO1 Mirasol. He admitted that he is the owner of the extension house but he alleged that there were four (4) occupants who rented that extension house. He knew the name of only one of the four occupants
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who are allegedly from Jolo, a certain Momoy, the husband. Aside from being uncorroborated, Walpans testimony was not elaborated by evidence as to when or for how long was the extension house rented, the amount of rental paid, or by any other document showing that the extension house was in fact rented. The defense of denial put up by accused Walpan Ladjaalam a.k.a. 'Warpan is a weak defense. Denial is the weakest defense and cannot prevail over the positive and categorical testimonies of the prosecution witnesses.Denials, if unsubstantiated by clear and convincing evidence, are negative and self-serving evidence which deserve no weight in law and cannot be given evidentiary weight over the testimony of credible witnesses who testify on affirmative matters. As between the positive declaration of the prosecution witnesses and the negative statements of the accused, the former deserve more credence.[29] In conclusion, the trial court explained appellants liability in this manner: x x x. The act of the accused in firing an M14 rifle to the policemen who were about to enter his house to serve a search warrant constitutes the crime of direct assault with multiple attempted homicide[,] not multiple attempted murder with direct assault[,] considering that no policeman was hit and injured by the accused and no circumstance was proved to qualify the attempted killing to attempted murder. The accused Walpan Ladjaalam a.k.a. Warpan cannot be held liable [for] the crime of Violation of Section 16, Article III, in relation to Section 21, Article IV, of Republic Act 6425 otherwise known as the Dangerous Drugs Act of 1992, as amended, because the fifty (50) pieces of folded aluminum foils having a total weight of 1.7426 grams all containing methamphetamine hydrochloride or shabu allegedly found in his house are inadmissible as evidence against him considering that they were seized after [a] search conducted by virtue of Search Warrant No. 20 which is totally null and void as it was issued for more than one offense, and were not found in plain view of the police officers who seized them. Neither could the accused be held liable for illegal possession of firearms and ammunition except for the (1) M14 rifle with Serial Number 1555225 and with magazine containing fifteen (15) live ammunition and two more M14 rifle magazines with twenty (20) and twenty-one (21) live ammunition respectively considering that the policemen who recovered or seized the other firearms and ammunition did not testify in court. The blue bag containing assorted coins cannot be returned to the accused Walpan Ladjaalam a.k.a. Warpan because according to the accused the blue bag and assorted coins do not belong to him[;] instead the said assorted coins should be turned over to the National Treasury.[30]

The Issues In his Brief, appellant submits the following Assignment of Errors: I The trial court erred when it concluded that appellant Walpan Ladjaalam y Mihajil [had] fired first at the police officers who went to his house to serve a search warrant upon him which led to an exchange of fire between Ladjaalam and the police officer.

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II The trial court erred when it denied the appellant the right and opportunity for an ocular inspection of the scene of the firefight and where the house of the appellant [was] located. III The trial court erred when it ruled that the presumption of regularity in the performance of their duties [excluded] the claim of the appellant that the firearms and methamphetamine hydrochloride (i.e. shabu) were planted by the police.[31] In the interest of simplicity, we shall take up these issues seriatim: (a) denial of the request for ocular inspection, (b) credibility of the prosecution witnesses, and (c) the defense of frame-up. In addition, we shall also discuss the proper crimes and penalties to be imposed on appellant.

The Courts Ruling The appeal has no merit.

First Issue: Denial of Request for Ocular Inspection Appellant insists that the trial court erred in denying his request for an ocular inspection of the Ladjaalam residence. He argues that an ocular inspection would have afforded the lower court a better perspective and an idea with respect to the scene of the crime.[32] We do not agree. We fail to see the need for an ocular inspection in this case, especially in the light of the clear testimonies of the prosecution witnesses.[33] We note in particular that the defense had even requested SPO1 Amado Mirasol Jr. to sketch the subject premises to give the lower court a fairly good idea of appellants house.[34] Viewing the site of the raid would have only delayed the proceedings.[35] Moreover, the question whether to view the setting of a relevant event has long been recognized to be within the discretion of the trial judge.[36] Here, there is no reason to disturb the exercise of that discretion.[37]

Second Issue: Credibility of Prosecution Witnesses Appellant, in essence, questions the credibility of the prosecution witnesses.[38] Suffice it to state that the trial courts assessment of their credibility is generally accorded respect, even finality.[39] After carefully examining the records and finding no material inconsistencies to support appellants claim, we cannot exempt this case from the general rule. [40] Quite the contrary, the testimonies of these witnesses positively showed that appellant had fired upon the approaching police elements, and that he had subsequently attempted to escape.SPO1 Amado Mirasol Jr.[41] testified thus:
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PROSECUTOR NUVAL: Q: And, this trail is towards the front of the house of the accused? A: Yes. Q: And its there where you were met by a volley of fire? A: Yes, Your Honor. COURT: Q: How far were you from the concrete fen[c]e when you were met by a volley of fire? ... You said you were fired upon? A: More or less, five (5) meters. xxxxxxxxx PROSECUTOR NUVAL: Q: Now, you said you were able to enter the house after the gate was opened by your colleague Felipe Gaganting ... I will reform that question. Q: Who opened the gate Mr. Witness? A: SPO2 Felipe Gaganting, Efren Gregorio and Allan Marcos Obut. Q: And, at that time you were hiding at the concrete fence? A: Yes. Q: Now, when this gate was opened, you said you went inside the house, right? A: Yes. Q: What did you see inside the house? A: I, together with SPO1 Ricardo Lacastesantos, entered the main door of the house of Walfran [sic] Ladjaalam at the ground floor. We went inside the sala on the ground floor of his house[;] I saw two old woman. xxxxxxxxx PROSECUTOR NUVAL: Q: Now, what did you do with these two old women? A: I did not mind those two old women because those two women were sitting on the ground floor. I was concentrating on the second floor because Ladjaalam was firing towards our group so, I, together with Ricardo Lacastesantos, went upstairs to the second floor of the house. Q: Were you able to go to the second floor of the house? A: Yes. Q: What happened when you were already on the second floor?

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A: While we were proceeding to the second floor, Walfan [sic] Ladjaalam, noticed our presence and immediately went inside the bedroom [o]n the second floor and he went immediately and jumped from the window of his house x x x leading to the roof of the nei ghbors house. xxxxxxxxx COURT: Reform. That is leading Q: What happened when you entered and he jumped to the roofing of the neighbors house? A: Immediately, I myself, we immediately went downstairs and asked the assistance of the members of the raiding team to arrest Walfan Ladjaalam. xxxxxxxxx PROSECUTOR NUVAL: Q: Were you able to go down? A: Yes. Q: What happened when you were there? A: We immediately went out and I asked the assistance of the members of the raiding team and the investigator of the unit especially SPO1 Cesar Rabuya. I was able to manage to arrest Walfan Ladjaalam.[42] What happened thereafter was narrated by Senior Police Officer Ricardo Lacastesantos,[43] as follows: Q: What did you notice [o]n the second floor? A: I went where the firing came from, so, I saw [an] M14 rifle and I shouted from the outside, do not fire at the second floor because there [are] a lot of children here. Q: Now, that rifle you said [was an] M14, where did you find this? A: At the sala set. Q: This sala set where is this located? A: Located [on] the second floor of the house. Q: Is there a sala [o]n the second floor? A: Yes. Q: Can you still identify that M14 rifle which you said you recovered from the sale set? A: Yes. Q: Why can you identify that? A: The Serial No. of M14 is 1555225 and I marked it with my initial. Q: Now, I have here M14 rifle[;] will you please tell us where is the Serial No. of this?
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A: 1555225 and I put my initial, RJL. FISCAL NUVAL: This is already marked as our Exhibit B-3 with magazine, one magazine and seven round [ammunition]. Q: After recovering this, what did you do with this firearm? A: When I recovered it I removed the bullets inside the chamber[.] I removed the magazine and I turned it over to the investigator. Q: Where did you turn it over? A: At the crime scene. Q: Now, that magazine, can you still identify this? A: Yes. Q: Why? A: I put x x x markings. xxxxxxxxx COURT: So, a[si]de from the magazine attached to the M14 rifle you found six more magazines? A: Yes, so, all in all six magazines, three empty M16 rifle magazines and three M14. Q: The M16 magazines [were] empty? A: Empty. Q: How about the M14? A: Found with [ammunition]. xxxxxxxxx Q: So, where are the three M16 magazines? A: In the corner. Q: What did you do with [these] three magazines of M16? A: I turned [them] over to the investigator. Q: Can you identify them? A: Yes, because of my initials[.] Q: Where are your initials? A: On the magazines. Q: RJL? A: RJL.[44]
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These were confirmed by the results of the paraffin tests conducted on appellant and on the weapons seized during the raid. Both of his hands as well as the weapons, particularly the M-14 which he had used, were positive for gunpowder nitrate. Police Inspector Mercedes DelfinDiestro explained in open court: Q: Okay. Now, what was the result of your examination, Madam Witness? A: The result of the examination [was] that both hands of the subject person, ha[d] presence of gun powder nitrates. Q: What do you mean Madam Witness, what does that indicate? A: It indicates there is presence of powder nitrates. Q: Can we conclude that he fired a gun? A: I cannot conclude that he fired a gun because there are so many circumstances [why] a person [would be] positive on his hands for gun powder nitrates. Q: But, most likely, he fired a gun? A: Yes. xxxxxxxxx PROSECUTOR NUVAL: Q: What about, Madam Witness this Exhibit B-3, which is the M14 rifle. What did you do with this? A: SPO3 Abu did the swabbing both in the chamber and the barrel wherein I observed there [were] black and traces of brown residue on the bolt, chamber and in the barrel. Q: And, that indicates Madam Witness...? A: It indicates that the gun was fired. Q: Recently? A: Because of the traces of brown residue, it could be possible that the gun was fired before the incident x x x. COURT: Q: There is also black residue? A: Yes. Q: What does it indicate? A: It indicates that the firearm was recently fired. Q: And, where is this swab used at the time of the swabbing of this Exhibit? A: This one. PROSECUTOR NUVAL: May we ask that this be marked as Exhibit B-3-A.
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COURT: Q: The firing there indicates that the gun was recently fired, during the incident? A: Yes. Q: And also before the incident it was fired because of the brown residue? A: Yes, Your Honor.[45] (emphasis supplied) Duly proven from the foregoing were the two elements[46] of the crime of illegal possession of firearms. Undoubtedly, the established fact that appellant had fired an M-14 rifle upon the approaching police officers clearly showed the existence of the firearm or weapon and his possession thereof. Sufficing to satisfy the second element was the prosecutions Certification[47] stating that he had not filed any application for license to possess a firearm, and that he had not been given authority to carry any outside his residence.[48] Further, it should be pointed out that his possession and use of an M-14 rifle were obviously unauthorized because this weapon could not be licensed in favor of, or carried by, a private individual.[49]

Third Issue: Defense of Frame-up From the convoluted arguments strewn before us by appellant, we gather that the main defense he raises is frame-up. He claims that the items seized from his house were planted, and that the entire Zamboanga police force was out to get him at all cost. This Court has invariably held that the defense of frame-up is inherently weak, since it is easy to fabricate, but terribly difficult to disprove.[50] Absent any showing of an improper motive on the part of the police officers,[51] coupled with the presumption of regularity in the performance of their duty, such defense cannot be given much credence.[52] Indeed, after examining the records of this case, we conclude that appellant has failed to substantiate his claim. On the contrary, his statements in his Counter Affidavit are inconsistent with his testimony during the trial.[53] He testified thus: Q Now, Mr. Witness, do you remember having executed an Affidavit/ a Counter-Affidavit? A I could not remember. Q I have here a Counter-Affidavit and it was signed before this representation on the 8th day of December 1997[;] tell us whose signature is this appearing above the typewritten name FISCAL NUVAL: Q . . . . Walpan Ladjaalam, whose signature is this? (Showing) A Yes, Sir. This is mine. Q Now, in paragraph[s] 1,2,3,4,5,6,7 and 8; you stated in this Counter-Affidavit which I quote: that I was resting and sleeping when I heard the gunshots and I noticed that the shots were directed towards our house.. and I inspected and x x x we were attacked by armed persons.. and I was apprehended by the persons who attacked x x x our house; [the]
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house you are referring to [in] this paragraph, whose house [are you] referring to, is this [what] you are referring to [as] your house or the house of your neighbors [from] which you said you heard gunshots? A Our house. Q Now, in paragraph 6 of your Counter-Affidavit you stated and I quote: that [o]n that afternoon of September 24, 1997, I was at home in my house Aplaya, Riohondo, Bo. Campo Muslim, my companions in my house [were] the two old women and my children, is this correct? A They were not there. Q Now, in that statement Mr. Witness, you said that you were at home in [your] house at Aplaya, Riohondo, Bo. Campo Muslim[;] which is which now, you were in your house or you were in your neighbors[] house at that time when you heard gunshots? A I was in the house near my house. Q So, your statement particularly paragraph 6 of your Counter-Affidavit that you were at home in [your] house at Aplaya Riohondo Bo. Campo Muslim, is x x x not correct? A Yes, Sir. This is not correct.[54]

Crime and Punishment The trial court convicted appellant of three crimes: (1) maintenance of a drug den, (2) direct assault with attempted homicide, and (3) illegal possession of firearms. We will discuss each of these. Maintenance of a Drug Den We agree with the trial court that appellant was guilty of maintenance of a drug den, an offense for which he was correctly sentenced to reclusion perpetua. His guilt was clearly established by the testimony of Prosecution Witness Rino Bartolome Locson, who himself had used the extension house of appellant as a drug den on several occasions, including the time of the raid. The formers testimony was corroborated by all the raiding police officers who testified before the court. That appellant did not deny ownership of the house and its extension lent credence to the prosecutions story.

Direct Assault with Multiple Attempted Homicide The trial court was also correct in convicting appellant of direct assault[55] with multiple counts of attempted homicide. It found that [t]he act of the accused [of] firing an M14 rifle [at] the policemen[,] who were about to enter his house to serve a search warrant x x x constituted such complex crime.[56]
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We note that direct assault with the use of a weapon carries the penalty of prision correccional in its medium and maximum periods, while attempted homicide carries the penalty of prision correccional.[57] Hence, for the present complex crime, the penalty for direct assault, which constitutes the most serious crime, should be imposed and applied in its maxim um period.[58]

Illegal Possession of Firearms Aside from finding appellant guilty of direct assault with multiple attempted homicide, the trial court convicted him also of the separate offense of illegal possession of firearms under PD 1866, as amended by RA 8294, and sentenced him to 6 years of prision correccional to 8 years of prision mayor. The Office of the Solicitor General (OSG) disagrees, on the ground that the trial court should not have applied the new law. It contends that under the facts of the case, the applicable law should have been PD 1866, as worded prior to its amendment by RA 8294. The trial courts ruling and the OSGs submission exemplify the legal communitys difficulty in grappling with the changes brought about by RA 8294. Hence, before us now are opposing views on how to interpret Section 1 of the new law, which provides as follows: SECTION 1. Section 1 of Presidential Decree No. 1866, as amended, is hereby further amended to read as follows: Section 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or Ammunition Instruments Used or Intended to be Used in the Manufacture of Firearms or Ammunition. -The penalty of prision correccional in its maximum period and a fine of not less than Fifteen thousand pesos (P15,000) shall be imposed upon any person who shall unlawfully manufacture, deal in, acquire, dispose, or possess any low powered firearm, such as rimfire handgun, .380 or .32 and other firearm of similar firepower, part of firearm, ammunition, or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition: Provided, That no other crime was committed. The penalty of prision mayor in its minimum period and a fine of Thirty thousand pesos (P30,000) shall be imposed if the firearm is classified as high powered firearm which includes those with bores bigger in diameter than .30 caliber and 9 millimeter such as caliber .40, .41, .44, .45 and also lesser calibered firearms but considered powerful such as caliber .357 and caliber .22 centerfire magnum and other firearms with firing capability of full automatic and by burst of two or three: Provided, however, That no other crime was committed by the person arrested. If homicide or murder is committed with the use of an unlicensed firearm, such use of an unlicensed firearm shall be considered as an aggravating circumstance. If the violation of this Section is in furtherance of or incident to, or in connection with the crime of rebellion or insurrection, sedition, or attempted coup detat, such violation shall be absorbed as an element of the crime of rebellion or insurrection, sedition, or attempted coup detat.
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The same penalty shall be imposed upon the owner, president, manager, director or other responsible officer of any public or private firm, company, corporation or entity, who shall willfully or knowingly allow any of the firearms owned by such firm, company, corporation or entity to be used by any person or persons found guilty of violating the provisions of the preceding paragraphs or willfully or knowingly allow any of them to use unlicensed firearms or firearms without any legal authority to be carried outside of their residence in the course of their employment. The penalty of arresto mayor shall be imposed upon any person who shall carry any licensed firearm outside his residence without legal authority therefor. Citing People v. Jayson,[59] the OSG argues that the foregoing provision does not cover the specific facts of this case. Since another crime -- direct assault with multiple unlawful homicide -was committed, appellant cannot be convicted of simple illegal possession of firearms under the second paragraph of the aforecited provision. Furthermore, since there was no killing in this case, illegal possession cannot be deemed as an aggravating circumstance under the third paragraph of the provision. Based on these premises, the OSG concludes that the applicable law is not RA 8294, but PD 1866 which, as worded prior the new law, penalizes simple illegal possession of firearms even if another crime is committed at the same time.[60] Applying a different interpretation, the trial court posits that appellant should be convicted of illegal possession of firearms, in addition to direct assault with multiple attempted homicide. It did not explain its ruling, however. Considering that it could not have been ignorant of the proviso[61] in the second paragraph, it seemed to have construed no other crime as referring only to homicide and murder, in both of which illegal possession of firearms is an aggravating circumstance. In other words, if a crime other than murder or homicide is committed, a person may still be convicted of illegal possession of firearms. In this case, the other crime committed was direct assault with multiple attempted homicide; hence, the trial court found appellant guilty of illegal possession of firearms. We cannot accept either of these interpretations because they ignore the plain language of the statute. A simple reading thereof shows that if an unlicensed firearm is used in the commission of any crime, there can be no separate offense of simple illegal possession of firearms. Hence, if the other crime is murder or homicide, illegal possession of firearms becomes merely an aggravating circumstance, not a separate offense. Since direct assault with multiple attempted homicide was committed in this case, appellant can no longer be held liable for illegal possession of firearms. Moreover, penal laws are construed liberally in favor of the accused.[62] In this case, the plain meaning of RA 8294s simple language is most favorable to herein appellant. Verily, no other interpretation is justified, for the language of the new law demonstrates the legislative intent to favor the accused.[63] Accordingly, appellant cannot be convicted of two separate offenses of illegal possession of firearms and direct assault with attempted homicide. Moreover, since the crime committed was direct assault and not homicide or murder, illegal possession of firearms cannot be deemed an aggravating circumstance. We reject the OSGs contention that PD 1866, as worded prior to its amendment by RA 8294, should be applied in this case. When the crime was committed on September 24, 1997, the original language of PD 1866 had already been expressly superseded by RA 8294 which took effect on July
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6, 1997.[64] In other words, no longer in existence was the earlier provision of PD 1866, which justified a conviction for illegal possession of firearms separate from any other crime. It was replaced by RA 8294 which, among other amendments to PD 1866, contained the specific proviso that no other crime was committed. Furthermore, the OSGs reliance on People v. Jayson[65] is misplaced. True, this Court sustained the conviction of appellant for illegal possession of firearms, although he had also committed homicide. We explained, however, that the criminal case for homicide [was] not before us for consideration. Just as unacceptable is the interpretation of the trial court. We find no justification for limiting the proviso in the second paragraph to murder and homicide. The law is clear: the accused can be convicted of simple illegal possession of firearms, provided that no other crime was committed by the person arrested. If the intention of the law in the second paragraph were to refer only to homicide and murder, it should have expressly said so, as it did in the third paragraph. Verily, where the law does not distinguish, neither should we. The Court is aware that this ruling effectively exonerates appellant of illegal possession of an M-14 rifle, an offense which normally carries a penalty heavier than that for direct assault. While the penalty for the first is prision mayor, for the second it is only prision correccional. Indeed, the accused may evade conviction for illegal possession of firearms by using such weapons in committing an even lighter offense,[66] like alarm and scandal[67] or slight physical injuries,[68] both of which are punishable by arresto menor.[69] This consequence, however, necessarily arises from the language of RA 8294, whose wisdom is not subject to the Courts review. Any perception that the result reached here appears unwise should be addressed to Congress. Indeed, the Court has no discretion to give statutes a new meaning detached from the manifest intendment and language of the legislature.Our task is constitutionally confined only to applying the law and jurisprudence[70] to the proven facts, and we have done so in this case. WHEREFORE, the appealed Decision is hereby AFFIRMED with the MODIFICATION that appellant is found guilty only of two offenses: (1) direct assault and multiple attempted homicide with the use of a weapon, for which he is sentenced to 2 years and 4 months to 6 years of prision correccional; and (2) maintaining a drug den, for which he was correctly sentenced by the trial court to reclusion perpetua. Costs against appellant. Let a copy of this Decision be furnished the Congress of the Philippines for a possible review, at its sound discretion, of RA 8294. SO ORDERED.

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Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 170562 June 29, 2007

ANGEL CELINO, SR., Petitioner, - versus COURT OF APPEALS, CEBU CITY, HON. DELANO F. VILLARUZ, Presiding Judge, Branch 16, Regional Trial Court,Capiz, Roxas City, and PEOPLE OF THE PHILIPPINES, Respondents. x-----------------------------------------------------------------------------------------x DECISION CARPIO MORALES, J.: This petition for certiorari under Rule 65 of the Rules of Court assails the Court of Appeals Decision dated April 18, 2005[1] affirming the trial courts denial of petitioner Angel Celino, Sr.s Motion to Quash; and Resolution dated September 26, 2005[2] denying petitioners Motion for Reconsideration of the said Decision. The following facts are not disputed: Two separate informations were filed before the Regional Trial Court of Roxas City charging petitioner with violation of Section 2(a) of COMELEC Resolution No. 6446 (gun ban),[3] and Section 1, Paragraph 2 of Republic Act No. (R.A.) 8294[4] (illegal possession of firearm), as follows: Criminal Case No. C-137-04 That on or about the 12th day of May, 2004, in the City of Roxas, Philippines, and within the jurisdiction of this Honorable Court, the said accused, did then and there willfully, unlawfully and knowingly carry outside of his residence an armalite rifle colt M16 with serial number 3210606 with two (2) long magazines each loaded with thirty (30) live ammunitions of the same caliber during the election period December 15, 2005 to June 9, 2004 without first having obtained the proper authority in writing from the Commission on Elections, Manila, Philippines. CONTRARY TO LAW. [5]
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Criminal Case No. C-138-04 That on or about the 12th day of May, 2004, in the City of Roxas, Philippines, and within the jurisdiction of this Honorable Court, the said accused, did then and there willfully, unlawfully and knowingly have in his possession and control one (1) armalite rifle colt M16 with serial number 3210606 with two (2) long magazines each loaded with thirty (30) live ammunitions of the same caliber without first having obtained the proper license or necessary permit to possess the said firearm. CONTRARY TO LAW.[6]

Upon arraignment in Criminal Case No. C-138-04, petitioner pleaded not guilty to the gun ban violation charge.[7] Prior to his arraignment in Criminal Case No. C-137-04, petitioner filed a Motion to Quash[8] contending that he cannot be prosecuted for illegal possession of firearms x x x if he was also charged of having committed another crime of [sic] violating the Comelec gun ban under the same set of facts x x x.[9] By Order of July 29, 2004, [10] the trial court denied the Motion to Quash on the basis of this Courts[11] affirmation in Margarejo v. Hon. Escoses[12] of therein respondent judges denial of a similar motion to quash on the ground that the other offense charged x x x is not one of those enumerated under R.A. 8294 x x x. [ 1 3 ] Petitioners Motion for Reconsideration was likewise denied by September 22, 2004 Resolution,[14] hence, petitioner filed a Petition for Certiorari[15] before the Court of Appeals. By Decision dated April 18, 2005,[16] the appellate court affirmed the trial courts denial of the Motion to Quash. Petitioners May 9, 2005 Motion for Reconsideration[17] having been denied by Resolution of September 26, 2005,[18] petitioner filed the present petition. The petition fails. Petitioners remedy to challenge the appellate courts decision and resolution was to file a petition for review on certiorari under Rule 45 on or before October 20, 2005 or 15 days after he received a copy of the appellate court's resolution on October 5, 2005[ 1 9 ] denying his motion for reconsideration. Instead, petitioner chose to file the present petition under Rule 65 only on December 2, 2005,[20] a good 58 days after he received the said resolution.

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Certiorari cannot be used as a substitute for lost appeal. Certiorari lies only when there is no appeal nor any plain, speedy, and adequate remedy in the ordinary course of law. Why the question being raised by petitioner, i.e., whether the appellate court committed grave abuse of discretion, could not have been raised on appeal, no reason therefor has been advanced.[21] While this Court, in accordance with the liberal spirit pervading the Rules of Court and in the interest of justice, has the discretion to treat a petition for certiorarias having been filed under Rule 45, especially if filed within the reglementary period under said Rule, it finds nothing in the present case to warrant a liberal application of the Rules, no justification having been proffered, as just stated, why the petition was filed beyond the reglementary period,[22] especially considering that it is substantially just a replication of the petition earlier filed before the appellate court. Technicality aside, the petition fails just the same. The relevant provision of R.A. 8294 reads: SECTION 1. Section 1 of Presidential Decree No. 1866, as amended, is hereby further amended to read as follows: "SECTION 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or Ammunition or Instruments Used or Intended to be Used in the Manufacture of Firearms or Ammunition. x x x. "The penalty of prision mayor in its minimum period and a fine of Thirty thousand pesos (P30,000) shall be imposed if the firearm is classified as high powered firearm which includes those with bores bigger in diameter than .38 caliber and 9 millimeter such as caliber .40, .41, .44, .45 and also lesser calibered firearms but considered powerful such as caliber .357 and caliber .22 center-fire magnum and other firearms with firing capability of full automatic and by burst of two or three: Provided, however, That no other crime was committed by the person arrested. "If homicide or murder is committed with the use of an unlicensed firearm, such use of an unlicensed firearm shall be considered as an aggravating circumstance. "If the violation of this Section is in furtherance of or incident to, or in connection with the crime of rebellion or insurrection, sedition, or attempted coup d'etat, such violation shall be absorbed as
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an element of the crime of rebellion, or insurrection, sedition, or attempted coup d'etat. xxxx (Underscoring supplied) The crux of the controversy lies in the interpretation of the underscored proviso. Petitioner, citing Agote v. Lorenzo, 2 [ 3 ]People v. Ladjaalam,[24] and other similar cases,[25] contends that the mere filing of an information for gun ban violation against him necessarily bars his prosecution for illegal possession of firearm. The Solicitor General contends otherwise on the basis of Margarejo v. Hon. Escoses [26] and People v. Valdez.[27] In Agote,[28] this Court affirmed the accuseds conviction for gun ban violation but exonerated him of the illegal possession of firearm charge because it cannot but set aside petitioners conviction in Criminal Case No. 96-149820 for illegal possession of firearm since another crime was committed at the same time, i.e., violation of COMELEC Resolution No. 2826 or the Gun Ban.[29] Agote is based on Ladjaalam[30] where this Court held: x x x A simple reading [of RA 8294] shows that if an unlicensed firearm is used in the commission of any crime, there can be no separate offense of simple illegal possession of firearms. Hence, if the other crime is murder or homicide, illegal possession of firearms becomes merely an aggravating circumstance, not a separate offense. Since direct assault with multiple attempted homicide was committed in this case, appellant can no longer be held liable for illegal possession of firearms. Moreover, penal laws are construed liberally in favor of the accused. In this case, the plain meaning of RA 8294's simple language is most favorable to herein appellant. Verily, no other interpretation is justified, for the language of the new law demonstrates the legislative intent to favor the accused. Accordingly, appellant cannot be convicted of two separate offenses of illegal possession of firearms and direct assault with attempted homicide. x x x xxxx x x x The law is clear: the accused can be convicted of simple illegal possession of firearms, provided that no other crime was committed by the person arrested. If the intention of the law in the second paragraph were to refer only to homicide and murder, it should have expressly said so, as it did in the third paragraph. Verily, where the law does not distinguish, neither should we.[31] The law is indeed clear. The accused can be convicted of illegal possession of firearms, provided no other crime was committed by the person arrested. The word committed taken in
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its ordinary sense, and in light of the Constitutional presumption of innocence,[32] necessarily implies a prior determination of guilt by final conviction resulting from successful prosecution or voluntary admission.[33] Petitioners reliance on Agote, Ladjaalam, Evangelista, Garcia, Pangilinan,

Almeida, and Bernal is, therefore, misplaced. In each one of these cases, the accused were exonerated of illegal possession of firearms because of their commission, as shown by their conviction, of some other crime.[34] In the present case, however, petitioner has only been accused of committing a violation of the COMELEC gun ban. As accusation is not synonymous with guilt, there is yet no showing that petitioner did in fact commit the other crime charged.[35] Consequently, the proviso does not yet apply. More applicable is Margarejo[36] where, as stated earlier, this Court affirmed the denial of a motion to quash an information for illegal possession of firearm on the ground that the other offense charged [i.e., violation of gun ban] x x x is not one of those enumerated under R.A. 8294 x x x.[37] in consonance with the earlier pronouncement in Valdez[38] that all pending cases involving illegal possession of firearm should continue to be prosecuted and tried if no other crimes expressly indicated in Republic Act No. 8294 are involved x x x.[39] In sum, when the other offense involved is one of those enumerated under R.A. 8294, any information for illegal possession of firearm should be quashed because the illegal possession of firearm would have to be tried together with such other offense, either considered as an aggravating circumstance in murder or homicide, [40] or absorbed as an element of rebellion, insurrection, sedition or attempted coup detat.[41] Conversely, when the other offense involved is not one of those enumerated under R.A. 8294, then the separate case for illegal possession of firearm should continue to be prosecuted. Finally, as a general rule, the remedy of an accused from the denial of his motion to quash is for him to go to trial on the merits, and if an adverse decision is rendered, to appeal therefrom in the manner authorized by law.[42] Although the special civil action for certiorari may be availed of in case there is a grave abuse of discretion,[43] the appellate court correctly dismissed the petition as that vitiating error is not attendant in the present case. WHEREFORE, the petition is DISMISSED. SO ORDERED.

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