GR No.

175888, 176051, 176222

DECISION

AZCUNA, J.:

These are petitions for certiorari, etc. as special civil actions and/or for review of the Decision of the Court of Appeals in Lance Corporal
Daniel J. Smith v. Hon. Benjamin T. Pozon, et al., in CA-G.R. SP No. 97212, dated January 2, 2007.

The facts are not disputed.

Respondent Lance Corporal (L/CPL) Daniel Smith is a member of the United States Armed Forces. He was charged with the crime of rape
committed against a Filipina, petitioner herein, sometime on November 1, 2005, as follows:

The undersigned accused LCpl. Daniel Smith, Ssgt. Chad Brian Carpentier, Dominic Duplantis, Keith Silkwood and
Timoteo L. Soriano, Jr. of the crime of Rape under Article 266-A of the Revised Penal Code, as amended by Republic Act 8353,
upon a complaint under oath filed by Suzette S. Nicolas, which is attached hereto and made an integral part hereof as Annex A,
committed as follows:

That on or about the First (1
st
) day of November 2005, inside the Subic Bay Freeport Zone,
Olongapo City and within the jurisdiction of this Honorable Court, the above-named accuseds (sic), being then
members of the United States Marine Corps, except Timoteo L. Soriano, Jr., conspiring, confederating together
and mutually helping one another, with lewd design and by means of force, threat and intimidation, with abuse
of superior strength and taking advantage of the intoxication of the victim, did then and there willfully, unlawfully
and feloniously sexually abuse and have sexual intercourse with or carnal knowledge of one Suzette S.
Nicolas, a 22-year old unmarried woman inside a Starex Van with Plate No. WKF-162, owned by Starways
Travel and Tours, with Office address at 8900 P. Victor St., Guadalupe, Makati City, and driven by accused
Timoteo L. Soriano, Jr., against the will and consent of the said Suzette S. Nicolas, to her damage and
prejudice.

CONTRARY TO LAW.
[1]



Pursuant to the Visiting Forces Agreement (VFA) between the Republic of the Philippines and the United States, entered into on February
10, 1998, the United States, at its request, was granted custody of defendant Smith pending the proceedings.

During the trial, which was transferred from the Regional Trial Court (RTC) of Zambales to the RTC of Makati for security reasons, the United
States Government faithfully complied with its undertaking to bring defendant Smith to the trial court every time his presence was required.

On December 4, 2006, the RTC of Makati, following the end of the trial, rendered its Decision, finding defendant Smith guilty, thus:

WHEREFORE, premises considered, for failure of the prosecution to adduce sufficient evidence against accused S/SGT.
CHAD BRIAN CARPENTER, L/CPL. KEITH SILKWOOD AND L/CPL. DOMINIC DUPLANTIS, all of the US Marine Corps assigned
at the USS Essex, are hereby ACQUITTED to the crime charged.

The prosecution having presented sufficient evidence against accused L/CPL. DANIEL J. SMITH, also of the US Marine
Corps at the USS Essex, this Court hereby finds him GUILTY BEYOND REASONABLE DOUBT of the crime of RAPE defined
under Article 266-A, paragraph 1 (a) of the Revised Penal Code, as amended by R.A. 8353, and, in accordance with Article 266-
B, first paragraph thereof, hereby sentences him to suffer the penalty of reclusion perpetua together with the accessory penalties
provided for under Article 41 of the same Code.

Pursuant to Article V, paragraph No. 10, of the Visiting Forces Agreement entered into by the Philippines and the United
States, accused L/CPL. DANIEL J. SMITH shall serve his sentence in the facilities that shall, thereafter, be agreed upon by
appropriate Philippine and United States authorities. Pending agreement on such facilities, accused L/CPL. DANIEL J. SMITH is
hereby temporarily committed to the Makati City Jail.

Accused L/CPL. DANIEL J. SMITH is further sentenced to indemnify complainant SUZETTE S. NICOLAS in the amount
of P50,000.00 as compensatory damages plus P50,000.00 as moral damages.

SO ORDERED.
[2]



As a result, the Makati court ordered Smith detained at the Makati jail until further orders.

On December 29, 2006, however, defendant Smith was taken out of the Makati jail by a contingent of Philippine law enforcement agents,
purportedly acting under orders of the Department of the Interior and Local Government, and brought to a facility for detention under the control of the
United States government, provided for under new agreements between the Philippines and the United States, referred to as the Romulo-Kenney
Agreement of December 19, 2006 which states:

The Government of the Republic of the Philippines and the Government of the United States of America agree that, in accordance
with the Visiting Forces Agreement signed between our two nations, Lance Corporal Daniel J. Smith, United States Marine Corps,
be returned to U.S. military custody at the U.S. Embassy in Manila.

(Sgd.) KRISTIE A. KENNEY (Sgd.) ALBERTO G. ROMULO
Representative of the United States Representative of the Republic
of America of the Philippines

DATE: 12-19-06 DATE: December 19, 2006__


and the Romulo-Kenney Agreement of December 22, 2006 which states:

The Department of Foreign Affairs of the Republic of the Philippines and the Embassy of the United States of America agree that,
in accordance with the Visiting Forces Agreement signed between the two nations, upon transfer of Lance Corporal Daniel J.
Smith, United States Marine Corps, from the Makati City Jail, he will be detained at the first floor, Rowe (JUSMAG) Building, U.S.
Embassy Compound in a room of approximately 10 x 12 square feet. He will be guarded round the clock by U.S. military
personnel. The Philippine police and jail authorities, under the direct supervision of the Philippine Department of Interior and Local
Government (DILG) will have access to the place of detention to ensure the United States is in compliance with the terms of the
VFA.


The matter was brought before the Court of Appeals which decided on January 2, 2007, as follows:

WHEREFORE, all the foregoing considered, we resolved to DISMISS the petition for having become moot.
[3]


Hence, the present actions.

The petitions were heard on oral arguments on September 19, 2008, after which the parties submitted their memoranda.

Petitioners contend that the Philippines should have custody of defendant L/CPL Smith because, first of all, the VFA is void and
unconstitutional.

This issue had been raised before, and this Court resolved in favor of the constitutionality of the VFA. This was in Bayan v. Zamora,
[4]
brought
by Bayan, one of petitioners in the present cases.

Against the barriers of res judicata vis--vis Bayan, and stare decisis vis--vis all the parties, the reversal of the previous ruling is sought on
the ground that the issue is of primordial importance, involving the sovereignty of the Republic, as well as a specific mandate of the Constitution.

The provision of the Constitution is Art. XVIII, Sec. 25 which states:

Sec. 25. After the expiration in 1991 of the Agreement between the Philippines and the United States of America
concerning Military Bases, foreign military bases, troops, or facilities shall not be allowed in the Philippines except under a treaty
duly concurred in by the Senate and, when the Congress so requires, ratified by a majority of the votes cast by the people in a
national referendum held for that purpose, and recognized as a treaty by the other contracting State.


The reason for this provision lies in history and the Philippine experience in regard to the United States military bases in the country.

It will be recalled that under the Philippine Bill of 1902, which laid the basis for the Philippine Commonwealth and, eventually, for the
recognition of independence, the United States agreed to cede to the Philippines all the territory it acquired from Spain under the Treaty of Paris, plus
a few islands later added to its realm, except certain naval ports and/or military bases and facilities, which the United States retained for itself.

This is noteworthy, because what this means is that Clark and Subic and the other places in the Philippines covered by the RP-US Military
Bases Agreement of 1947 were not Philippine territory, as they were excluded from the cession and retained by the US.

Accordingly, the Philippines had no jurisdiction over these bases except to the extent allowed by the United States. Furthermore, the RP-
US Military Bases Agreement was never advised for ratification by the United States Senate, a disparity in treatment, because the Philippines regarded
it as a treaty and had it concurred in by our Senate.

Subsequently, the United States agreed to turn over these bases to the Philippines; and with the expiration of the RP-US Military Bases
Agreement in 1991, the territory covered by these bases were finally ceded to the Philippines.

To prevent a recurrence of this experience, the provision in question was adopted in the 1987 Constitution.

The provision is thus designed to ensure that any agreement allowing the presence of foreign military bases, troops or facilities in Philippine
territory shall be equally binding on the Philippines and the foreign sovereign State involved. The idea is to prevent a recurrence of the situation in
which the terms and conditions governing the presence of foreign armed forces in our territory were binding upon us but not upon the foreign State.

Applying the provision to the situation involved in these cases, the question is whether or not the presence of US Armed Forces in Philippine
territory pursuant to the VFA is allowed under a treaty duly concurred in by the Senate xxx and recognized as a treaty by the other contracting
State.

This Court finds that it is, for two reasons.

First, as held in Bayan v. Zamora,
[5]
the VFA was duly concurred in by the Philippine Senate and has been recognized as a treaty by
the United States as attested and certified by the duly authorized representative of the United States government.

The fact that the VFA was not submitted for advice and consent of the United States Senate does not detract from its status as a binding
international agreement or treaty recognized by the said State. For this is a matter of internal United States law. Notice can be taken of the
internationally known practice by the United States of submitting to its Senate for advice and consent agreements that are policymaking in nature,
whereas those that carry out or further implement these policymaking agreements are merely submitted to Congress, under the provisions of the so-
called CaseZablocki Act, within sixty days from ratification.
[6]


The second reason has to do with the relation between the VFA and the RP-US Mutual Defense Treaty of August 30, 1951. This earlier
agreement was signed and duly ratified with the concurrence of both the Philippine Senate and the United States Senate.

The RP-US Mutual Defense Treaty states:
[7]


MUTUAL DEFENSE TREATY BETWEEN THE REPUBLIC OF THE PHILIPPINES AND THE UNITED STATES OF
AMERICA. Signed at Washington, August 30, 1951.

The Parties of this Treaty

Reaffirming their faith in the purposes and principles of the Charter of the United Nations and their desire to live in peace
with all peoples and all governments, and desiring to strengthen the fabric of peace in the Pacific area.

Recalling with mutual pride the historic relationship which brought their two peoples together in a common bond of sympathy
and mutual ideals to fight side-by-side against imperialist aggression during the last war.

Desiring to declare publicly and formally their sense of unity and their common determination to defend themselves
against external armed attack, so that no potential aggressor could be under the illusion that either of them stands alone in the
Pacific area.

Desiring further to strengthen their present efforts for collective defense for the preservation of peace and
security pending the development of a more comprehensive system of regional security in the Pacific area.

Agreeing that nothing in this present instrument shall be considered or interpreted as in any way or sense altering or
diminishing any existing agreements or understandings between the Republic of thePhilippines and the United States of America.

Have agreed as follows:

ARTICLE I. The parties undertake, as set forth in the Charter of the United Nations, to settle any international disputes in
which they may be involved by peaceful means in such a manner that international peace and security and justice are not
endangered and to refrain in their international relation from the threat or use of force in any manner inconsistent with the purposes
of the United Nations.

ARTICLE II. In order more effectively to achieve the objective of this Treaty, the Parties separately and jointly by self-
help and mutual aid will maintain and develop their individual and collective capacity to resist armed attack.

ARTICLE III. The Parties, through their Foreign Ministers or their deputies, will consult together from time to time regarding
the implementation of this Treaty and whenever in the opinion of either of them the territorial integrity, political independence or
security of either of the Parties is threatened by external armed attack in the Pacific.

ARTICLE IV. Each Party recognizes that an armed attack in the Pacific area on either of the parties would be dangerous
to its own peace and safety and declares that it would act to meet the common dangers in accordance with its constitutional
processes.

Any such armed attack and all measures taken as a result thereof shall be immediately reported to the Security Council of
the United Nations. Such measures shall be terminated when the Security Council has taken the measures necessary to restore
and maintain international peace and security.

ARTICLE V. For the purpose of Article IV, an armed attack on either of the Parties is deemed to include an armed attack
on the metropolitan territory of either of the Parties, or on the island territories under its jurisdiction in the Pacific Ocean, its armed
forces, public vessels or aircraft in the Pacific.

ARTICLE VI. This Treaty does not affect and shall not be interpreted as affecting in any way the rights and obligations of
the Parties under the Charter of the United Nations or the responsibility of the United Nations for the maintenance of international
peace and security.

ARTICLE VII. This Treaty shall be ratified by the Republic of the Philippines and the United Nations of America in
accordance with their respective constitutional processes and will come into force when instruments of ratification thereof have
been exchanged by them at Manila.

ARTICLE VIII. This Treaty shall remain in force indefinitely. Either Party may terminate it one year after notice has been
given to the other party.

IN WITHNESS WHEREOF the undersigned Plenipotentiaries have signed this Treaty.

DONE in duplicate at Washington this thirtieth day of August, 1951.

For the Republic of the Philippines:
(Sgd.) CARLOS P. ROMULO
(Sgd.) JOAQUIN M. ELIZALDE
(Sgd.) VICENTE J. FRANCISCO
(Sgd.) DIOSDADO MACAPAGAL

For the United States of America:

(Sgd.) DEAN ACHESON
(Sgd.) JOHN FOSTER DULLES
(Sgd.) TOM CONNALLY
(Sgd.) ALEXANDER WILEY
[8]



Clearly, therefore, joint RP-US military exercises for the purpose of developing the capability to resist an armed attack fall squarely under
the provisions of the RP-US Mutual Defense Treaty. The VFA, which is the instrument agreed upon to provide for the joint RP-US military exercises,
is simply an implementing agreement to the main RP-US Military Defense Treaty. The Preamble of the VFA states:

The Government of the United States of America and the Government of the Republic of the Philippines,

Reaffirming their faith in the purposes and principles of the Charter of the United Nations and their desire to strengthen international
and regional security in the Pacific area;

Reaffirming their obligations under the Mutual Defense Treaty of August 30, 1951;

Noting that from time to time elements of the United States armed forces may visit the Republic of the Philippines;

Considering that cooperation between the United States and the Republic of the Philippines promotes their common
security interests;

Recognizing the desirability of defining the treatment of United States personnel visiting the Republic of the Philippines;

Have agreed as follows:
[9]



Accordingly, as an implementing agreement of the RP-US Mutual Defense Treaty, it was not necessary to submit the VFA to the US Senate
for advice and consent, but merely to the US Congress under the CaseZablocki Act within 60 days of its ratification. It is for this reason that the US has
certified that it recognizes the VFA as a binding international agreement, i.e., a treaty, and this substantially complies with the requirements of Art.
XVIII, Sec. 25 of our Constitution.
[10]


The provision of Art. XVIII, Sec. 25 of the Constitution, is complied with by virtue of the fact that the presence of the US Armed Forces through
the VFA is a presence allowed under the RP-US Mutual Defense Treaty. Since the RP-US Mutual Defense Treaty itself has been ratified and
concurred in by both the Philippine Senate and the US Senate, there is no violation of the Constitutional provision resulting from such presence.

The VFA being a valid and binding agreement, the parties are required as a matter of international law to abide by its terms and provisions.

The VFA provides that in cases of offenses committed by the members of the US Armed Forces in the Philippines, the following rules apply:


Article V
Criminal Jurisdiction

x x x
6. The custody of any United States personnel over whom the Philippines is to exercise jurisdiction shall immediately
reside with United States military authorities, if they so request, from the commission of the offense until completion of all judicial
proceedings. United States military authorities shall, upon formal notification by the Philippine authorities and without delay, make
such personnel available to those authorities in time for any investigative or judicial proceedings relating to the offense with which
the person has been charged. In extraordinary cases, the Philippine Government shall present its position to the United States
Government regarding custody, which the United States Government shall take into full account. In the event Philippine judicial
proceedings are not completed within one year, the United States shall be relieved of any obligations under this paragraph. The
one year period will not include the time necessary to appeal. Also, the one year period will not include any time during which
scheduled trial procedures are delayed because United States authorities, after timely notification by Philippine authorities to
arrange for the presence of the accused, fail to do so.

Petitioners contend that these undertakings violate another provision of the Constitution, namely, that providing for the exclusive power of
this Court to adopt rules of procedure for all courts in the Philippines (Art. VIII, Sec. 5[5]). They argue that to allow the transfer of custody of an accused
to a foreign power is to provide for a different rule of procedure for that accused, which also violates the equal protection clause of the Constitution
(Art. III, Sec. 1.).

Again, this Court finds no violation of the Constitution.

The equal protection clause is not violated, because there is a substantial basis for a different treatment of a member of a foreign military
armed forces allowed to enter our territory and all other accused.
[11]


The rule in international law is that a foreign armed forces allowed to enter ones territory is immune from local jurisdiction, except to the
extent agreed upon. The Status of Forces Agreements involving foreign military units around the world vary in terms and conditions, according to the
situation of the parties involved, and reflect their bargaining power. But the principle remains, i.e., the receiving State can exercise jurisdiction over
the forces of the sending State only to the extent agreed upon by the parties.
[12]


As a result, the situation involved is not one in which the power of this Court to adopt rules of procedure is curtailed or violated, but rather
one in which, as is normally encountered around the world, the laws (including rules of procedure) of one State do not extend or apply except to the
extent agreed upon to subjects of another State due to the recognition of extraterritorial immunity given to such bodies as visiting foreign armed
forces.

Nothing in the Constitution prohibits such agreements recognizing immunity from jurisdiction or some aspects of jurisdiction (such as
custody), in relation to long-recognized subjects of such immunity like Heads of State, diplomats and members of the armed forces contingents of a
foreign State allowed to enter another States territory. On the contrary, the Constitution states that the Philippines adopts the generally accepted
principles of international law as part of the law of the land. (Art. II, Sec. 2).

Applying, however, the provisions of VFA, the Court finds that there is a different treatment when it comes to detention as against
custody. The moment the accused has to be detained, e.g., after conviction, the rule that governs is the following provision of the VFA:

Article V
Criminal Jurisdiction

x x x
Sec. 10. The confinement or detention by Philippine authorities of United States personnel shall be carried out in
facilities agreed on by appropriate Philippines and United States authorities. United States personnel serving sentences in
the Philippines shall have the right to visits and material assistance.


It is clear that the parties to the VFA recognized the difference between custody during the trial and detention after conviction, because they
provided for a specific arrangement to cover detention. And this specific arrangement clearly states not only that the detention shall be carried out in
facilities agreed on by authorities of both parties, but also that the detention shall be by Philippine authorities. Therefore, the Romulo-Kenney
Agreements of December 19 and 22, 2006, which are agreements on the detention of the accused in the United States Embassy, are not in accord
with the VFA itself because such detention is not by Philippine authorities.

Respondents should therefore comply with the VFA and negotiate with representatives of the United States towards an agreement on
detention facilities under Philippine authorities as mandated by Art. V, Sec. 10 of the VFA.

Next, the Court addresses the recent decision of the United States Supreme Court in Medellin v. Texas ( 552 US ___ No. 06-984, March 25,
2008), which held that treaties entered into by the United States are not automatically part of their domestic law unless these treaties are self-executing
or there is an implementing legislation to make them enforceable.

On February 3, 2009, the Court issued a Resolution, thus:

G.R. No. 175888 (Suzette Nicolas y Sombilon v. Alberto Romulo, et al.); G.R. No. 176051 (Jovito R. Salonga, et al. v. Daniel
Smith, et al.); and G.R. No. 176222 (Bagong Alyansang Makabayan [BAYAN], et al. v. President Gloria Macapagal-
Arroyo, et al.).

The parties, including the Solicitor General, are required to submit within three (3) days a Comment/Manifestation on the
following points:

1. What is the implication on the RP-US Visiting Forces Agreement of the recent US Supreme Court decision in Jose
Ernesto Medellin v. Texas, dated March 25, 2008, to the effect that treaty stipulations that are not self-executory can
only be enforced pursuant to legislation to carry them into effect; and that, while treaties may comprise international
commitments, they are not domestic law unless Congress has enacted implementing statutes or the treaty itself conveys
an intention that it be self-executory and is ratified on these terms?

2. Whether the VFA is enforceable in the US as domestic law, either because it is self-executory or because there exists
legislation to implement it.

3. Whether the RP-US Mutual Defense Treaty of August 30, 1951 was concurred in by the US Senate and, if so, is there
proof of the US Senate advice and consent resolution? Peralta, J., no part.

After deliberation, the Court holds, on these points, as follows:

First, the VFA is a self-executing Agreement, as that term is defined in Medellin itself, because the parties intend its provisions to be
enforceable, precisely because the Agreement is intended to carry out obligations and undertakings under the RP-US Mutual Defense Treaty. As a
matter of fact, the VFA has been implemented and executed, with the US faithfully complying with its obligation to produce L/CPL Smith before the
court during the trial.

Secondly, the VFA is covered by implementing legislation, namely, the Case-Zablocki Act, USC Sec. 112(b), inasmuch as it is the very purpose
and intent of the US Congress that executive agreements registered under this Act within 60 days from their ratification be immediately
implemented. The parties to these present cases do not question the fact that the VFA has been registered under the Case-Zablocki Act.

In sum, therefore, the VFA differs from the Vienna Convention on Consular Relations and the Avena decision of the International Court of Justice
(ICJ), subject matter of the Medellin decision. The Convention and the ICJ decision are not self-executing and are not registrable under the Case-
Zablocki Act, and thus lack legislative implementing authority.

Finally, the RP-US Mutual Defense Treaty was advised and consented to by the US Senate on March 20, 1952, as reflected in the US
Congressional Record, 82
nd
Congress, Second Session, Vol. 98 Part 2, pp. 2594-2595.

The framers of the Constitution were aware that the application of international law in domestic courts varies from country to country.

As Ward N. Ferdinandusse states in his Treatise, DIRECT APPLICATION OF INTERNATIONAL CRIMINAL LAW IN NATIONAL COURTS,
some countries require legislation whereas others do not.

It was not the intention of the framers of the 1987 Constitution, in adopting Article XVIII, Sec. 25, to require the other contracting State to
convert their system to achieve alignment and parity with ours. It was simply required that the treaty be recognized as a treaty by the other contracting
State. With that, it becomes for both parties a binding international obligation and the enforcement of that obligation is left to the normal recourse and
processes under international law.

Furthermore, as held by the US Supreme Court in Weinberger v. Rossi,
[13]
an executive agreement is a treaty within the meaning of that
word in international law and constitutes enforceable domestic law vis--vis the United States. Thus, the US Supreme Court in Weinberger enforced
the provisions of the executive agreement granting preferential employment to Filipinos in the US Bases here.


Accordingly, there are three types of treaties in the American system:

1. Art. II, Sec. 2 treaties These are advised and consented to by the US Senate in accordance with Art. II, Sec. 2 of
the US Constitution.

2. ExecutiveCongressional Agreements: These are joint agreements of the President and Congress and need not be submitted
to the Senate.

3. Sole Executive Agreements. These are agreements entered into by the President. They are to be submitted to Congress
within sixty (60) days of ratification under the provisions of the Case-Zablocki Act, after which they are recognized by the Congress
and may be implemented.

As regards the implementation of the RP-US Mutual Defense Treaty, military aid or assistance has been given under it and this can only be
done through implementing legislation. The VFA itself is another form of implementation of its provisions.

WHEREFORE, the petitions are PARTLY GRANTED, and the Court of Appeals Decision in CA-G.R. SP No. 97212 dated January 2,
2007 is MODIFIED. The Visiting Forces Agreement (VFA) between the Republic of the Philippines and the United States, entered into on February
10, 1998, is UPHELD as constitutional, but the Romulo-Kenney Agreements of December 19 and 22, 2006 are DECLARED not in accordance
with the VFA, and respondent Secretary of Foreign Affairs is hereby ordered to forthwith negotiate with the United States representatives for the
appropriate agreement on detention facilities under Philippine authorities as provided in Art. V, Sec. 10 of the VFA, pending which the status quo shall
be maintained until further orders by this Court.

The Court of Appeals is hereby directed to resolve without delay the related matters pending therein, namely, the petition for contempt and
the appeal of L/CPL Daniel Smith from the judgment of conviction.

No costs.

SO ORDERED.










G.R. No. 142396 February 11, 2003
KHOSROW MINUCHER, petitioner,
vs.
HON. COURT OF APPEALS and ARTHUR SCALZO, respondents.
VITUG, J.:
Sometime in May 1986, an Information for violation of Section 4 of Republic Act No. 6425, otherwise also known as the "Dangerous Drugs Act of
1972," was filed against petitioner Khosrow Minucher and one Abbas Torabian with the Regional Trial Court, Branch 151, of Pasig City. The criminal
charge followed a "buy-bust operation" conducted by the Philippine police narcotic agents in the house of Minucher, an Iranian national, where a
quantity of heroin, a prohibited drug, was said to have been seized. The narcotic agents were accompanied by private respondent Arthur Scalzo who
would, in due time, become one of the principal witnesses for the prosecution. On 08 January 1988, Presiding Judge Eutropio Migrino rendered a
decision acquitting the two accused.
On 03 August 1988, Minucher filed Civil Case No. 88-45691 before the Regional Trial Court (RTC), Branch 19, of Manila for damages on account of
what he claimed to have been trumped-up charges of drug trafficking made by Arthur Scalzo. The Manila RTC detailed what it had found to be the
facts and circumstances surrounding the case.
"The testimony of the plaintiff disclosed that he is an Iranian national. He came to the Philippines to study in the University of the Philippines in 1974.
In 1976, under the regime of the Shah of Iran, he was appointed Labor Attach for the Iranian Embassies in Tokyo, Japan and Manila, Philippines.
When the Shah of Iran was deposed by Ayatollah Khomeini, plaintiff became a refugee of the United Nations and continued to stay in the
Philippines. He headed the Iranian National Resistance Movement in the Philippines.
"He came to know the defendant on May 13, 1986, when the latter was brought to his house and introduced to him by a certain Jose Iigo, an
informer of the Intelligence Unit of the military. Jose Iigo, on the other hand, was met by plaintiff at the office of Atty. Crisanto Saruca, a lawyer for
several Iranians whom plaintiff assisted as head of the anti-Khomeini movement in the Philippines.
"During his first meeting with the defendant on May 13, 1986, upon the introduction of Jose Iigo, the defendant expressed his interest in buying
caviar. As a matter of fact, he bought two kilos of caviar from plaintiff and paid P10,000.00 for it. Selling caviar, aside from that of Persian carpets,
pistachio nuts and other Iranian products was his business after the Khomeini government cut his pension of over $3,000.00 per month. During their
introduction in that meeting, the defendant gave the plaintiff his calling card, which showed that he is working at the US Embassy in the Philippines,
as a special agent of the Drug Enforcement Administration, Department of Justice, of the United States, and gave his address as US Embassy,
Manila. At the back of the card appears a telephone number in defendants own handwriting, the number of which he can also be contacted.
"It was also during this first meeting that plaintiff expressed his desire to obtain a US Visa for his wife and the wife of a countryman named Abbas
Torabian. The defendant told him that he [could] help plaintiff for a fee of $2,000.00 per visa. Their conversation, however, was more concentrated
on politics, carpets and caviar. Thereafter, the defendant promised to see plaintiff again.
"On May 19, 1986, the defendant called the plaintiff and invited the latter for dinner at Mario's Restaurant at Makati. He wanted to buy 200 grams of
caviar. Plaintiff brought the merchandize but for the reason that the defendant was not yet there, he requested the restaurant people to x x x place
the same in the refrigerator. Defendant, however, came and plaintiff gave him the caviar for which he was paid. Then their conversation was again
focused on politics and business.
"On May 26, 1986, defendant visited plaintiff again at the latter's residence for 18 years at Kapitolyo, Pasig. The defendant wanted to buy a pair of
carpets which plaintiff valued at $27,900.00. After some haggling, they agreed at $24,000.00. For the reason that defendant did not yet have the
money, they agreed that defendant would come back the next day. The following day, at 1:00 p.m., he came back with his $24,000.00, which he
gave to the plaintiff, and the latter, in turn, gave him the pair of carpets.1awphi1.nt
"At about 3:00 in the afternoon of May 27, 1986, the defendant came back again to plaintiff's house and directly proceeded to the latter's bedroom,
where the latter and his countryman, Abbas Torabian, were playing chess. Plaintiff opened his safe in the bedroom and obtained $2,000.00 from it,
gave it to the defendant for the latter's fee in obtaining a visa for plaintiff's wife. The defendant told him that he would be leaving the Philippines very
soon and requested him to come out of the house for a while so that he can introduce him to his cousin waiting in a cab. Without much ado, and
without putting on his shirt as he was only in his pajama pants, he followed the defendant where he saw a parked cab opposite the street. To his
complete surprise, an American jumped out of the cab with a drawn high-powered gun. He was in the company of about 30 to 40 Filipino soldiers
with 6 Americans, all armed. He was handcuffed and after about 20 minutes in the street, he was brought inside the house by the defendant. He was
made to sit down while in handcuffs while the defendant was inside his bedroom. The defendant came out of the bedroom and out from defendant's
attach case, he took something and placed it on the table in front of the plaintiff. They also took plaintiff's wife who was at that time at the boutique
near his house and likewise arrested Torabian, who was playing chess with him in the bedroom and both were handcuffed together. Plaintiff was not
told why he was being handcuffed and why the privacy of his house, especially his bedroom was invaded by defendant. He was not allowed to use
the telephone. In fact, his telephone was unplugged. He asked for any warrant, but the defendant told him to `shut up. He was nevertheless told that
he would be able to call for his lawyer who can defend him.
"The plaintiff took note of the fact that when the defendant invited him to come out to meet his cousin, his safe was opened where he kept the
$24,000.00 the defendant paid for the carpets and another $8,000.00 which he also placed in the safe together with a bracelet worth $15,000.00 and
a pair of earrings worth $10,000.00. He also discovered missing upon his release his 8 pieces hand-made Persian carpets, valued at $65,000.00, a
painting he bought for P30,000.00 together with his TV and betamax sets. He claimed that when he was handcuffed, the defendant took his keys
from his wallet. There was, therefore, nothing left in his house.
"That his arrest as a heroin trafficker x x x had been well publicized throughout the world, in various newspapers, particularly in Australia, America,
Central Asia and in the Philippines. He was identified in the papers as an international drug trafficker. x x x
In fact, the arrest of defendant and Torabian was likewise on television, not only in the Philippines, but also in America and in Germany. His friends
in said places informed him that they saw him on TV with said news.
"After the arrest made on plaintiff and Torabian, they were brought to Camp Crame handcuffed together, where they were detained for three days
without food and water."
1

During the trial, the law firm of Luna, Sison and Manas, filed a special appearance for Scalzo and moved for extension of time to file an answer
pending a supposed advice from the United States Department of State and Department of Justice on the defenses to be raised. The trial court
granted the motion. On 27 October 1988, Scalzo filed another special appearance to quash the summons on the ground that he, not being a resident
of the Philippines and the action being one in personam, was beyond the processes of the court. The motion was denied by the court, in its order of
13 December 1988, holding that the filing by Scalzo of a motion for extension of time to file an answer to the complaint was a voluntary appearance
equivalent to service of summons which could likewise be construed a waiver of the requirement of formal notice. Scalzo filed a motion for
reconsideration of the court order, contending that a motion for an extension of time to file an answer was not a voluntary appearance equivalent to
service of summons since it did not seek an affirmative relief. Scalzo argued that in cases involving the United States government, as well as its
agencies and officials, a motion for extension was peculiarly unavoidable due to the need (1) for both the Department of State and the Department of
Justice to agree on the defenses to be raised and (2) to refer the case to a Philippine lawyer who would be expected to first review the case. The
court a quo denied the motion for reconsideration in its order of 15 October 1989.
Scalzo filed a petition for review with the Court of Appeals, there docketed CA-G.R. No. 17023, assailing the denial. In a decision, dated 06 October
1989, the appellate court denied the petition and affirmed the ruling of the trial court. Scalzo then elevated the incident in a petition for review on
certiorari, docketed G.R. No. 91173, to this Court. The petition, however, was denied for its failure to comply with SC Circular No. 1-88; in any event,
the Court added, Scalzo had failed to show that the appellate court was in error in its questioned judgment.
Meanwhile, at the court a quo, an order, dated 09 February 1990, was issued (a) declaring Scalzo in default for his failure to file a responsive
pleading (answer) and (b) setting the case for the reception of evidence. On 12 March 1990, Scalzo filed a motion to set aside the order of default
and to admit his answer to the complaint. Granting the motion, the trial court set the case for pre-trial. In his answer, Scalzo denied the material
allegations of the complaint and raised the affirmative defenses (a) of Minuchers failure to state a cause of action in his complaint and (b) that
Scalzo had acted in the discharge of his official duties as being merely an agent of the Drug Enforcement Administration of the United States
Department of Justice. Scalzo interposed a counterclaim of P100,000.00 to answer for attorneys' fees and expenses of litigation.
Then, on 14 June 1990, after almost two years since the institution of the civil case, Scalzo filed a motion to dismiss the complaint on the ground
that, being a special agent of the United States Drug Enforcement Administration, he was entitled to diplomatic immunity. He attached to his motion
Diplomatic Note No. 414 of the United States Embassy, dated 29 May 1990, addressed to the Department of Foreign Affairs of the Philippines and a
Certification, dated 11 June 1990, of Vice Consul Donna Woodward, certifying that the note is a true and faithful copy of its original. In an order of 25
June 1990, the trial court denied the motion to dismiss.
On 27 July 1990, Scalzo filed a petition for certiorari with injunction with this Court, docketed G.R. No. 94257 and entitled "Arthur W. Scalzo, Jr., vs.
Hon. Wenceslao Polo, et al.," asking that the complaint in Civil Case No. 88-45691 be ordered dismissed. The case was referred to the Court of
Appeals, there docketed CA-G.R. SP No. 22505, per this Courts resolution of 07 August 1990. On 31 October 1990, the Court of Appeals
promulgated its decision sustaining the diplomatic immunity of Scalzo and ordering the dismissal of the complaint against him. Minucher filed a
petition for review with this Court, docketed G.R. No. 97765 and entitled "Khosrow Minucher vs. the Honorable Court of Appeals, et. al." (cited in 214
SCRA 242), appealing the judgment of the Court of Appeals. In a decision, dated 24 September 1992, penned by Justice (now Chief Justice) Hilario
Davide, Jr., this Court reversed the decision of the appellate court and remanded the case to the lower court for trial. The remand was ordered on
the theses (a) that the Court of Appeals erred in granting the motion to dismiss of Scalzo for lack of jurisdiction over his person without even
considering the issue of the authenticity of Diplomatic Note No. 414 and (b) that the complaint contained sufficient allegations to the effect that
Scalzo committed the imputed acts in his personal capacity and outside the scope of his official duties and, absent any evidence to the contrary, the
issue on Scalzos diplomatic immunity could not be taken up.
The Manila RTC thus continued with its hearings on the case. On 17 November 1995, the trial court reached a decision; it adjudged:
"WHEREFORE, and in view of all the foregoing considerations, judgment is hereby rendered for the plaintiff, who successfully established his claim
by sufficient evidence, against the defendant in the manner following:
"`Adjudging defendant liable to plaintiff in actual and compensatory damages of P520,000.00; moral damages in the sum of P10 million; exemplary
damages in the sum of P100,000.00; attorney's fees in the sum of P200,000.00 plus costs.
`The Clerk of the Regional Trial Court, Manila, is ordered to take note of the lien of the Court on this judgment to answer for the unpaid docket fees
considering that the plaintiff in this case instituted this action as a pauper litigant."
2

While the trial court gave credence to the claim of Scalzo and the evidence presented by him that he was a diplomatic agent entitled to immunity as
such, it ruled that he, nevertheless, should be held accountable for the acts complained of committed outside his official duties. On appeal, the Court
of Appeals reversed the decision of the trial court and sustained the defense of Scalzo that he was sufficiently clothed with diplomatic immunity
during his term of duty and thereby immune from the criminal and civil jurisdiction of the "Receiving State" pursuant to the terms of the Vienna
Convention.
Hence, this recourse by Minucher. The instant petition for review raises a two-fold issue: (1) whether or not the doctrine of conclusiveness of
judgment, following the decision rendered by this Court in G.R. No. 97765, should have precluded the Court of Appeals from resolving the appeal to
it in an entirely different manner, and (2) whether or not Arthur Scalzo is indeed entitled to diplomatic immunity.
The doctrine of conclusiveness of judgment, or its kindred rule of res judicata, would require 1) the finality of the prior judgment, 2) a valid jurisdiction
over the subject matter and the parties on the part of the court that renders it, 3) a judgment on the merits, and 4) an identity of the parties, subject
matter and causes of action.
3
Even while one of the issues submitted in G.R. No. 97765 - "whether or not public respondent Court of Appeals erred
in ruling that private respondent Scalzo is a diplomat immune from civil suit conformably with the Vienna Convention on Diplomatic Relations" - is
also a pivotal question raised in the instant petition, the ruling in G.R. No. 97765, however, has not resolved that point with finality. Indeed, the Court
there has made this observation -
"It may be mentioned in this regard that private respondent himself, in his Pre-trial Brief filed on 13 June 1990, unequivocally states that he would
present documentary evidence consisting of DEA records on his investigation and surveillance of plaintiff and on his position and duties as DEA
special agent in Manila. Having thus reserved his right to present evidence in support of his position, which is the basis for the alleged diplomatic
immunity, the barren self-serving claim in the belated motion to dismiss cannot be relied upon for a reasonable, intelligent and fair resolution of the
issue of diplomatic immunity."
4

Scalzo contends that the Vienna Convention on Diplomatic Relations, to which the Philippines is a signatory, grants him absolute immunity from suit,
describing his functions as an agent of the United States Drugs Enforcement Agency as "conducting surveillance operations on suspected drug
dealers in the Philippines believed to be the source of prohibited drugs being shipped to the U.S., (and) having ascertained the target, (he then)
would inform the Philippine narcotic agents (to) make the actual arrest." Scalzo has submitted to the trial court a number of documents -
1. Exh. '2' - Diplomatic Note No. 414 dated 29 May 1990;
2. Exh. '1' - Certification of Vice Consul Donna K. Woodward dated 11 June 1990;
3. Exh. '5' - Diplomatic Note No. 757 dated 25 October 1991;
4. Exh. '6' - Diplomatic Note No. 791 dated 17 November 1992; and
5. Exh. '7' - Diplomatic Note No. 833 dated 21 October 1988.
6. Exh. '3' - 1st Indorsement of the Hon. Jorge R. Coquia, Legal Adviser, Department of Foreign Affairs, dated 27 June 1990 forwarding
Embassy Note No. 414 to the Clerk of Court of RTC Manila, Branch 19 (the trial court);
7. Exh. '4' - Diplomatic Note No. 414, appended to the 1st Indorsement (Exh. '3'); and
8. Exh. '8' - Letter dated 18 November 1992 from the Office of the Protocol, Department of Foreign Affairs, through Asst. Sec. Emmanuel
Fernandez, addressed to the Chief Justice of this Court.
5

The documents, according to Scalzo, would show that: (1) the United States Embassy accordingly advised the Executive Department of the
Philippine Government that Scalzo was a member of the diplomatic staff of the United States diplomatic mission from his arrival in the Philippines on
14 October 1985 until his departure on 10 August 1988; (2) that the United States Government was firm from the very beginning in asserting the
diplomatic immunity of Scalzo with respect to the case pursuant to the provisions of the Vienna Convention on Diplomatic Relations; and (3) that the
United States Embassy repeatedly urged the Department of Foreign Affairs to take appropriate action to inform the trial court of Scalzos diplomatic
immunity. The other documentary exhibits were presented to indicate that: (1) the Philippine government itself, through its Executive Department,
recognizing and respecting the diplomatic status of Scalzo, formally advised the "Judicial Department" of his diplomatic status and his entitlement to
all diplomatic privileges and immunities under the Vienna Convention; and (2) the Department of Foreign Affairs itself authenticated Diplomatic Note
No. 414. Scalzo additionally presented Exhibits "9" to "13" consisting of his reports of investigation on the surveillance and subsequent arrest of
Minucher, the certification of the Drug Enforcement Administration of the United States Department of Justice that Scalzo was a special agent
assigned to the Philippines at all times relevant to the complaint, and the special power of attorney executed by him in favor of his previous
counsel
6
to show (a) that the United States Embassy, affirmed by its Vice Consul, acknowledged Scalzo to be a member of the diplomatic staff of the
United States diplomatic mission from his arrival in the Philippines on 14 October 1985 until his departure on 10 August 1988, (b) that, on May 1986,
with the cooperation of the Philippine law enforcement officials and in the exercise of his functions as member of the mission, he investigated
Minucher for alleged trafficking in a prohibited drug, and (c) that the Philippine Department of Foreign Affairs itself recognized that Scalzo during his
tour of duty in the Philippines (14 October 1985 up to 10 August 1988) was listed as being an Assistant Attach of the United States diplomatic
mission and accredited with diplomatic status by the Government of the Philippines. In his Exhibit 12, Scalzo described the functions of the overseas
office of the United States Drugs Enforcement Agency, i.e., (1) to provide criminal investigative expertise and assistance to foreign law enforcement
agencies on narcotic and drug control programs upon the request of the host country, 2) to establish and maintain liaison with the host country and
counterpart foreign law enforcement officials, and 3) to conduct complex criminal investigations involving international criminal conspiracies which
affect the interests of the United States.
The Vienna Convention on Diplomatic Relations was a codification of centuries-old customary law and, by the time of its ratification on 18 April 1961,
its rules of law had long become stable. Among the city states of ancient Greece, among the peoples of the Mediterranean before the establishment
of the Roman Empire, and among the states of India, the person of the herald in time of war and the person of the diplomatic envoy in time of peace
were universally held sacrosanct.
7
By the end of the 16th century, when the earliest treatises on diplomatic law were published, the inviolability of
ambassadors was firmly established as a rule of customary international law.
8
Traditionally, the exercise of diplomatic intercourse among states was
undertaken by the head of state himself, as being the preeminent embodiment of the state he represented, and the foreign secretary, the official
usually entrusted with the external affairs of the state. Where a state would wish to have a more prominent diplomatic presence in the receiving
state, it would then send to the latter a diplomatic mission. Conformably with the Vienna Convention, the functions of the diplomatic mission involve,
by and large, the representation of the interests of the sending state and promoting friendly relations with the receiving state.
9

The Convention lists the classes of heads of diplomatic missions to include (a) ambassadors or nuncios accredited to the heads of state,
10
(b)
envoys,
11
ministers or internuncios accredited to the heads of states; and (c) charges d' affairs
12
accredited to the ministers of foreign
affairs.
13
Comprising the "staff of the (diplomatic) mission" are the diplomatic staff, the administrative staff and the technical and service staff. Only
the heads of missions, as well as members of the diplomatic staff, excluding the members of the administrative, technical and service staff of the
mission, are accorded diplomatic rank. Even while the Vienna Convention on Diplomatic Relations provides for immunity to the members of
diplomatic missions, it does so, nevertheless, with an understanding that the same be restrictively applied. Only "diplomatic agents," under the terms
of the Convention, are vested with blanket diplomatic immunity from civil and criminal suits. The Convention defines "diplomatic agents" as the heads
of missions or members of the diplomatic staff, thus impliedly withholding the same privileges from all others. It might bear stressing that even
consuls, who represent their respective states in concerns of commerce and navigation and perform certain administrative and notarial duties, such
as the issuance of passports and visas, authentication of documents, and administration of oaths, do not ordinarily enjoy the traditional diplomatic
immunities and privileges accorded diplomats, mainly for the reason that they are not charged with the duty of representing their states in political
matters. Indeed, the main yardstick in ascertaining whether a person is a diplomat entitled to immunity is the determination of whether or not he
performs duties of diplomatic nature.
Scalzo asserted, particularly in his Exhibits "9" to "13," that he was an Assistant Attach of the United States diplomatic mission and was accredited
as such by the Philippine Government. An attach belongs to a category of officers in the diplomatic establishment who may be in charge of its
cultural, press, administrative or financial affairs. There could also be a class of attaches belonging to certain ministries or departments of the
government, other than the foreign ministry or department, who are detailed by their respective ministries or departments with the embassies such
as the military, naval, air, commercial, agricultural, labor, science, and customs attaches, or the like. Attaches assist a chief of mission in his duties
and are administratively under him, but their main function is to observe, analyze and interpret trends and developments in their respective fields in
the host country and submit reports to their own ministries or departments in the home government.
14
These officials are not generally regarded as
members of the diplomatic mission, nor are they normally designated as having diplomatic rank.
In an attempt to prove his diplomatic status, Scalzo presented Diplomatic Notes Nos. 414, 757 and 791, all issued post litem motam, respectively, on
29 May 1990, 25 October 1991 and 17 November 1992. The presentation did nothing much to alleviate the Court's initial reservations in G.R. No.
97765, viz:
"While the trial court denied the motion to dismiss, the public respondent gravely abused its discretion in dismissing Civil Case No. 88-45691 on the
basis of an erroneous assumption that simply because of the diplomatic note, the private respondent is clothed with diplomatic immunity, thereby
divesting the trial court of jurisdiction over his person.
"x x x x x x x x x
"And now, to the core issue - the alleged diplomatic immunity of the private respondent. Setting aside for the moment the issue of authenticity raised
by the petitioner and the doubts that surround such claim, in view of the fact that it took private respondent one (1) year, eight (8) months and
seventeen (17) days from the time his counsel filed on 12 September 1988 a Special Appearance and Motion asking for a first extension of time to
file the Answer because the Departments of State and Justice of the United States of America were studying the case for the purpose of determining
his defenses, before he could secure the Diplomatic Note from the US Embassy in Manila, and even granting for the sake of argument that such
note is authentic, the complaint for damages filed by petitioner cannot be peremptorily dismissed.
"x x x x x x x x x
"There is of course the claim of private respondent that the acts imputed to him were done in his official capacity. Nothing supports this self-serving
claim other than the so-called Diplomatic Note. x x x. The public respondent then should have sustained the trial court's denial of the motion to
dismiss. Verily, it should have been the most proper and appropriate recourse. It should not have been overwhelmed by the self-serving Diplomatic
Note whose belated issuance is even suspect and whose authenticity has not yet been proved. The undue haste with which respondent Court
yielded to the private respondent's claim is arbitrary."
A significant document would appear to be Exhibit No. 08, dated 08 November 1992, issued by the Office of Protocol of the Department of Foreign
Affairs and signed by Emmanuel C. Fernandez, Assistant Secretary, certifying that "the records of the Department (would) show that Mr. Arthur W.
Scalzo, Jr., during his term of office in the Philippines (from 14 October 1985 up to 10 August 1988) was listed as an Assistant Attach of the United
States diplomatic mission and was, therefore, accredited diplomatic status by the Government of the Philippines." No certified true copy of such
"records," the supposed bases for the belated issuance, was presented in evidence.
Concededly, vesting a person with diplomatic immunity is a prerogative of the executive branch of the government. In World Health Organization vs.
Aquino,
15
the Court has recognized that, in such matters, the hands of the courts are virtually tied. Amidst apprehensions of indiscriminate and
incautious grant of immunity, designed to gain exemption from the jurisdiction of courts, it should behoove the Philippine government, specifically its
Department of Foreign Affairs, to be most circumspect, that should particularly be no less than compelling, in its post litem motam issuances. It might
be recalled that the privilege is not an immunity from the observance of the law of the territorial sovereign or from ensuing legal liability; it is, rather,
an immunity from the exercise of territorial jurisdiction.
16
The government of the United States itself, which Scalzo claims to be acting for, has
formulated its standards for recognition of a diplomatic agent. The State Department policy is to only concede diplomatic status to a person who
possesses an acknowledged diplomatic title and "performs duties of diplomatic nature."
17
Supplementary criteria for accreditation are the possession
of a valid diplomatic passport or, from States which do not issue such passports, a diplomatic note formally representing the intention to assign the
person to diplomatic duties, the holding of a non-immigrant visa, being over twenty-one years of age, and performing diplomatic functions on an
essentially full-time basis.
18
Diplomatic missions are requested to provide the most accurate and descriptive job title to that which currently applies to
the duties performed. The Office of the Protocol would then assign each individual to the appropriate functional category.
19

But while the diplomatic immunity of Scalzo might thus remain contentious, it was sufficiently established that, indeed, he worked for the United
States Drug Enforcement Agency and was tasked to conduct surveillance of suspected drug activities within the country on the dates pertinent to this
case. If it should be ascertained that Arthur Scalzo was acting well within his assigned functions when he committed the acts alleged in the
complaint, the present controversy could then be resolved under the related doctrine of State Immunity from Suit.
The precept that a State cannot be sued in the courts of a foreign state is a long-standing rule of customary international law then closely
identified with the personal immunity of a foreign sovereign from suit
20
and, with the emergence of democratic states, made to attach not just to the
person of the head of state, or his representative, but also distinctly to the state itself in its sovereign capacity.
21
If the acts giving rise to a suit are
those of a foreign government done by its foreign agent, although not necessarily a diplomatic personage, but acting in his official capacity, the
complaint could be barred by the immunity of the foreign sovereign from suit without its consent. Suing a representative of a state is believed to be,
in effect, suing the state itself. The proscription is not accorded for the benefit of an individual but for the State, in whose service he is, under the
maxim - par in parem, non habet imperium - that all states are sovereign equals and cannot assert jurisdiction over one another.
22
The implication, in
broad terms, is that if the judgment against an official would require the state itself to perform an affirmative act to satisfy the award, such as the
appropriation of the amount needed to pay the damages decreed against him, the suit must be regarded as being against the state itself, although it
has not been formally impleaded.
23

In United States of America vs. Guinto,
24
involving officers of the United States Air Force and special officers of the Air Force Office of Special
Investigators charged with the duty of preventing the distribution, possession and use of prohibited drugs, this Court has ruled -
"While the doctrine (of state immunity) appears to prohibit only suits against the state without its consent, it is also applicable to complaints filed
against officials of the state for acts allegedly performed by them in the discharge of their duties. x x x. It cannot for a moment be imagined that they
were acting in their private or unofficial capacity when they apprehended and later testified against the complainant. It follows that for discharging
their duties as agents of the United States, they cannot be directly impleaded for acts imputable to their principal, which has not given its consent to
be sued. x x x As they have acted on behalf of the government, and within the scope of their authority, it is that government, and not the petitioners
personally, [who were] responsible for their acts."
25

This immunity principle, however, has its limitations. Thus, Shauf vs. Court of Appeals
26
elaborates:
"It is a different matter where the public official is made to account in his capacity as such for acts contrary to law and injurious to the rights of the
plaintiff. As was clearly set forth by Justice Zaldivar in Director of the Bureau of Telecommunications, et al., vs. Aligaen, et al. (33 SCRA 368):
`Inasmuch as the State authorizes only legal acts by its officers, unauthorized acts of government officials or officers are not acts of the State, and an
action against the officials or officers by one whose rights have been invaded or violated by such acts, for the protection of his rights, is not a suit
against the State within the rule of immunity of the State from suit. In the same tenor, it has been said that an action at law or suit in equity against a
State officer or the director of a State department on the ground that, while claiming to act for the State, he violates or invades the personal and
property rights of the plaintiff, under an unconstitutional act or under an assumption of authority which he does not have, is not a suit against the
State within the constitutional provision that the State may not be sued without its consent. The rationale for this ruling is that the doctrine of state
immunity cannot be used as an instrument for perpetrating an injustice.
"x x x x x x x x x
"(T)he doctrine of immunity from suit will not apply and may not be invoked where the public official is being sued in his private and personal capacity
as an ordinary citizen. The cloak of protection afforded the officers and agents of the government is removed the moment they are sued in their
individual capacity. This situation usually arises where the public official acts without authority or in excess of the powers vested in him. It is a well-
settled principle of law that a public official may be liable in his personal private capacity for whatever damage he may have caused by his act done
with malice and in bad faith or beyond the scope of his authority and jurisdiction."
27

A foreign agent, operating within a territory, can be cloaked with immunity from suit but only as long as it can be established that he is acting within
the directives of the sending state. The consent of the host state is an indispensable requirement of basic courtesy between the two sovereigns.
Guinto and Shauf both involve officers and personnel of the United States, stationed within Philippine territory, under the RP-US Military Bases
Agreement. While evidence is wanting to show any similar agreement between the governments of the Philippines and of the United States (for the
latter to send its agents and to conduct surveillance and related activities of suspected drug dealers in the Philippines), the consent or imprimatur of
the Philippine government to the activities of the United States Drug Enforcement Agency, however, can be gleaned from the facts heretofore
elsewhere mentioned. The official exchanges of communication between agencies of the government of the two countries, certifications from officials
of both the Philippine Department of Foreign Affairs and the United States Embassy, as well as the participation of members of the Philippine
Narcotics Command in the "buy-bust operation" conducted at the residence of Minucher at the behest of Scalzo, may be inadequate to support the
"diplomatic status" of the latter but they give enough indication that the Philippine government has given its imprimatur, if not consent, to the activities
within Philippine territory of agent Scalzo of the United States Drug Enforcement Agency. The job description of Scalzo has tasked him to conduct
surveillance on suspected drug suppliers and, after having ascertained the target, to inform local law enforcers who would then be expected to make
the arrest. In conducting surveillance activities on Minucher, later acting as the poseur-buyer during the buy-bust operation, and then becoming a
principal witness in the criminal case against Minucher, Scalzo hardly can be said to have acted beyond the scope of his official function or duties.
All told, this Court is constrained to rule that respondent Arthur Scalzo, an agent of the United States Drug Enforcement Agency allowed by the
Philippine government to conduct activities in the country to help contain the problem on the drug traffic, is entitled to the defense of state immunity
from suit.
WHEREFORE, on the foregoing premises, the petition is DENIED. No costs.
SO ORDERED.







G.R. No. 125865 March 26, 2001
JEFFREY LIANG (HUEFENG), petitioner,
vs.
PEOPLE OF THE PHILIPPINES, respondent.
YNARES-SANTIAGO, J.:
This resolves petitioner's Motion for Reconsideration of our Decision dated January 28, 2000, denying the petition for review.
The Motion is anchored on the following arguments:
1) THE DFA'S DETERMINATION OF IMMUNITY IS A POLITICAL QUESTION TO BE MADE BY THE EXECUTIVE BRANCH OF THE
GOVERNMENT AND IS CONCLUSIVE UPON THE COURTS.
2) THE IMMUNITY OF INTERNATIONAL ORGANIZATIONS IS ABSOLUTE.
3) THE IMMUNITY EXTENDS TO ALL STAFF OF THE ASIAN DEVELOPMENT BANK (ADB).
4) DUE PROCESS WAS FULLY AFFORDED THE COMPLAINANT TO REBUT THE DFA PROTOCOL.
5) THE DECISION OF JANUARY 28, 2000 ERRONEOUSLY MADE A FINDING OF FACT ON THE MERITS, NAMELY, THE
SLANDERING OF A PERSON WHICH PREJUDGED PETITIONER'S CASE BEFORE THE METROPOLITAN TRIAL COURT (MTC)-
MANDALUYONG.
6) THE VIENNA CONVENTION ON DIPLOMATIC RELATIONS IS NOT APPLICABLE TO THIS CASE.
This case has its origin in two criminal Informations
1
for grave oral defamation filed against petitioner, a Chinese national who was employed as an
Economist by the Asian Development Bank (ADB), alleging that on separate occasions on January 28 and January 31, 1994, petitioner allegedly
uttered defamatory words to Joyce V. Cabal, a member of the clerical staff of ADB. On April 13, 1994, the Metropolitan Trial Court of Mandaluyong
City, acting pursuant to an advice from the Department of Foreign Affairs that petitioner enjoyed immunity from legal processes, dismissed the
criminal Informations against him. On a petition for certiorari and mandamus filed by the People, the Regional Trial Court of Pasig City, Branch 160,
annulled and set aside the order of the Metropolitan Trial Court dismissing the criminal cases.
2

Petitioner, thus, brought a petition for review with this Court. On January 28, 2000, we rendered the assailed Decision denying the petition for review.
We ruled, in essence, that the immunity granted to officers and staff of the ADB is not absolute; it is limited to acts performed in an official capacity.
Furthermore, we held that the immunity cannot cover the commission of a crime such as slander or oral defamation in the name of official duty.
On October 18, 2000, the oral arguments of the parties were heard. This Court also granted the Motion for Intervention of the Department of Foreign
Affairs. Thereafter, the parties were directed to submit their respective memorandum.
For the most part, petitioner's Motion for Reconsideration deals with the diplomatic immunity of the ADB, its officials and staff, from legal and judicial
processes in the Philippines, as well as the constitutional and political bases thereof. It should be made clear that nowhere in the assailed Decision is
diplomatic immunity denied, even remotely. The issue in this case, rather, boils down to whether or not the statements allegedly made by petitioner
were uttered while in the performance of his official functions, in order for this case to fall squarely under the provisions of Section 45 (a) of the
"Agreement Between the Asian Development Bank and the Government of the Republic of the Philippines Regarding the Headquarters of the Asian
Development Bank," to wit:
Officers and staff of the Bank, including for the purpose of this Article experts and consultants performing missions for the Bank, shall enjoy
the following privileges and immunities:
(a) Immunity from legal process with respect to acts performed by them in their official capacity except when the Bank waives the
immunity.
After a careful deliberation of the arguments raised in petitioner's and intervenor's Motions for Reconsideration, we find no cogent reason to disturb
our Decision of January 28, 2000. As we have stated therein, the slander of a person, by any stretch, cannot be considered as falling within the
purview of the immunity granted to ADB officers and personnel. Petitioner argues that the Decision had the effect of prejudging the criminal case for
oral defamation against him. We wish to stress that it did not. What we merely stated therein is that slander, in general, cannot be considered as an
act performed in an official capacity. The issue of whether or not petitioner's utterances constituted oral defamation is still for the trial court to
determine.
WHEREFORE, in view of the foregoing, the Motions for Reconsideration filed by petitioner and intervenor Department of Foreign Affairs are DENIED
with FINALITY.
SO ORDERED.
Kapunan and Pardo, JJ ., concur.
Davide, Jr., C.J., I also join concurring opinion of Mr. Justice Puno.
Puno, J., Please see concurring opinion.


Concurring Opinions
PUNO, J., concurring:
For resolution is the Motion for Reconsideration filed by petitioner Jeffrey Liang of this Court's decision dated January 28, 2000 which denied the
petition for review. We there held that: the protocol communication of the Department of Foreign Affairs to the effect that petitioner Liang is covered
by immunity is only preliminary and has no binding effect in courts; the immunity provided for under Section 45(a) of the Headquarters Agreement is
subject to the condition that the act be done in an "official capacity"; that slandering a person cannot be said to have been done in an "official
capacity" and, hence, it is not covered by the immunity agreement; under the Vienna Convention on Diplomatic Relations, a diplomatic agent,
assuming petitioner is such, enjoys immunity from criminal jurisdiction of the receiving state except in the case of an action relating to any
professional or commercial activity exercised by the diplomatic agent in the receiving state outside his official functions; the commission of a crime is
not part of official duty; and that a preliminary investigation is not a matter of right in cases cognizable by the Metropolitan Trial Court.
Petitioner's motion for reconsideration is anchored on the following arguments:
1. The DFA's determination of immunity is a political question to be made by the executive branch of the government and is conclusive
upon the courts;
2. The immunity of international organizations is absolute;
3. The immunity extends to all staff of the Asian Development Bank (ADB);
4. Due process was fully accorded the complainant to rebut the DFA protocol;
5. The decision of January 28, 2000 erroneously made a finding of fact on the merits, namely, the slandering of a person which prejudged
petitioner's case before the Metropolitan Trial Court (MTC) Mandaluyong; and
6. The Vienna Convention on diplomatic relations is not applicable to this case.
Petitioner contends that a determination of a person's diplomatic immunity by the Department of Foreign Affairs is a political question. It is solely
within the prerogative of the executive department and is conclusive upon the courts. In support of his submission, petitioner cites the following
cases: WHO vs. Aquino;
1
International Catholic Migration Commission vs. Calleja;
2
The Holy See vs. Rosario, Jr.;
3
Lasco vs. United
Nations;
4
and DFA vs. NLRC.
5

It is further contended that the immunity conferred under the ADB Charter and the Headquarters Agreement is absolute. It is designed to safeguard
the autonomy and independence of international organizations against interference from any authority external to the organizations. It is necessary
to allow such organizations to discharge their entrusted functions effectively. The only exception to this immunity is when there is an implied or
express waiver or when the immunity is expressly limited by statute. The exception allegedly has no application to the case at bar.
Petitioner likewise urges that the international organization's immunity from local jurisdiction empowers the ADB alone to determine what constitutes
"official acts" and the same cannot be subject to different interpretations by the member states. It asserts that the Headquarters Agreement provides
for remedies to check abuses against the exercise of the immunity. Thus, Section 49 states that the "Bank shall waive the immunity accorded to any
person if, in its opinion, such immunity would impede the course of justice and the waiver would not prejudice the purposes for which the immunities
are accorded." Section 51 allows for consultation between the government and the Bank should the government consider that an abuse has
occurred. The same section provides the mechanism for a dispute settlement regarding, among others, issues of interpretation or application of the
agreement.
Petitioner's argument that a determination by the Department of Foreign Affairs that he is entitled to diplomatic immunity is a political question
binding on the courts, is anchored on the ruling enunciated in the case of WHO, et al. vs. Aquino, et al.,
6
viz:
"It is a recognized principle of international law and under our system of separation of powers that diplomatic immunity is essentially a
political question and courts should refuse to look beyond a determination by the executive branch of the government, and where the plea
of diplomatic immunity is recognized and affirmed by the executive branch of the government as in the case at bar, it is then the duty of the
courts to accept the claim of immunity upon appropriate suggestion by the principal law officer of the government, the Solicitor General in
this case, or other officer acting under his direction. Hence, in adherence to the settled principle that courts may not so exercise their
jurisdiction by seizure and detention of property, as to embarrass the executive arm of the government in conducting foreign relations, it is
accepted doctrine that in such cases the judicial department of the government follows the action of the political branch and will not
embarrass the latter by assuming an antagonistic jurisdiction."
This ruling was reiterated in the subsequent cases of International Catholic Migration Commission vs. Calleja;
7
The Holy See vs. Rosario, Jr.;
8
Lasco
vs. UN;
9
and DFA vs. NLRC.
10

The case of WHO vs. Aquino involved the search and seizure of personal effects of petitioner Leonce Verstuyft, an official of the WHO. Verstuyft was
certified to be entitled to diplomatic immunity pursuant to the Host Agreement executed between the Philippines and the WHO.
ICMC vs. Calleja concerned a petition for certification election filed against ICMC and IRRI. As international organizations, ICMC and IRRI were
declared to possess diplomatic immunity. It was held that they are not subject to local jurisdictions. It was ruled that the exercise of jurisdiction by the
Department of Labor over the case would defeat the very purpose of immunity, which is to shield the affairs of international organizations from
political pressure or control by the host country and to ensure the unhampered performance of their functions.
Holy See v. Rosario, Jr. involved an action for annulment of sale of land against the Holy See, as represented by the Papal Nuncio. The Court
upheld the petitioner's defense of sovereign immunity. It ruled that where a diplomatic envoy is granted immunity from the civil and administrative
jurisdiction of the receiving state over any real action relating to private immovable property situated in the territory of the receiving state, which the
envoy holds on behalf of the sending state for the purposes of the mission, with all the more reason should immunity be recognized as regards the
sovereign itself, which in that case is the Holy See.
In Lasco vs. United Nations, the United Nations Revolving Fund for Natural Resources Exploration was sued before the NLRC for illegal dismissal.
The Court again upheld the doctrine of diplomatic immunity invoked by the Fund.
Finally, DFA v. NLRC involved an illegal dismissal case filed against the Asian Development Bank. Pursuant to its Charter and the Headquarters
Agreement, the diplomatic immunity of the Asian Development Bank was recognized by the Court.
It bears to stress that all of these cases pertain to the diplomatic immunity enjoyed by international organizations. Petitioner asserts that he is entitled
to the same diplomatic immunity and he cannot be prosecuted for acts allegedly done in the exercise of his official functions.
The term "international organizations"
"is generally used to describe an organization set up by agreement between two or more states. Under contemporary international law,
such organizations are endowed with some degree of international legal personality such that they are capable of exercising specific rights,
duties and powers. They are organized mainly as a means for conducting general international business in which the member states have
an interest."
11

International public officials have been defined as:
". . . persons who, on the basis of an international treaty constituting a particular international community, are appointed by this
international community, or by an organ of it, and are under its control to exercise, in a continuous way, functions in the interest of this
particular international community, and who are subject to a particular personal status."
12

"Specialized agencies" are international organizations having functions in particular fields, such as posts, telecommunications, railways,
canals, rivers, sea transport, civil aviation, meteorology, atomic energy, finance, trade, education and culture, health and refugees.
13

Issues
1. Whether petitioner Liang, as an official of an international organization, is entitled to diplomatic immunity;
2. Whether an international official is immune from criminal jurisdiction for all acts, whether private or official;
3. Whether the authority to determine if an act is official or private is lodged in the courts;
4. Whether the certification by the Department of Foreign Affairs that petitioner is covered by immunity is a political question that is binding
and conclusive on the courts.
Discussion
I
A perusal of the immunities provisions in various international conventions and agreements will show that the nature and degree of immunities vary
depending on who the recipient is. Thus:
1. Charter of the United Nations
"Article 105 (1): The Organization shall enjoy in the territory of each of its Members such privileges and immunities as are necessary for
the fulfillment of its purposes.
Article 105 (2): Representatives of the Members of the United Nations and officials of the Organization shall similarly enjoy such privileges
and immunities as are necessary for the independent exercise of their functions in connection with the Organization."
2. Convention on the Privileges and Immunities of the United Nations
"Section 2: The United Nations, its property and assets wherever located and by whomsoever held, shall enjoy immunity from every form
of legal process except insofar as in any particular case it has expressly waived its immunity. It is, however, understood that no waiver of
immunity shall extend to any measure of execution.
xxx xxx xxx
Section 11 (a): Representatives of Members to the principal and subsidiary organs of the United Nations . . shall . . . enjoy . . . immunity
from personal arrest or detention and from seizure of their personal baggage, and, in respect of words spoken or written and all acts done
by them in their capacity as representatives, immunity from legal process of every kind.
xxx xxx xxx
Section 14: Privileges and immunities are accorded to the representatives of Members not for the personal benefit of the individuals
themselves, but in order to safeguard the independent exercise of their functions in connection with the United Nations. Consequently, a
Member not only has the right but is under a duty to waive the immunity of its representative in any case where in the opinion of the
Member the immunity would impede the course of justice, and it can be waived without prejudice to the purpose for which the immunity is
accorded.
xxx xxx xxx
Section 18 (a): Officials of the United Nations shall be immune from legal process in respect of words spoken or written and all acts
performed by them in their official capacity.
xxx xxx xxx
Section 19: In addition to the immunities and privileges specified in Section 18, the Secretary-General and all Assistant Secretaries-
General shall be accorded in respect of themselves, their spouses and minor children, the privileges and immunities, exemptions and
facilities accorded to diplomatic envoys, in accordance with international law.
Section 20: Privileges and immunities are granted to officials in the interest of the United Nations and not for the personal benefit of the
individuals themselves. The Secretary-General shall have the right and the duty to waive the immunity of any official in any case where, in
his opinion, the immunity would impede the course of justice and can be waived without prejudice to the interests of the United Nations.
xxx xxx xxx
Section 22: Experts . . . performing missions for the United Nations . . . shall be accorded: (a) immunity from personal arrest or detention
and from seizure of their personal baggage; (b) in respect of words spoken or written and acts done by them in the course of the
performance of their mission, immunity from legal process of every kind."
3. Vienna Convention on Diplomatic Relations
"Article 29: The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving
State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom, or dignity.
xxx xxx xxx
Article 31 (1): A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity
from its civil and administrative jurisdiction, except in certain cases.
xxx xxx xxx
Article 38 (1): Except in so far as additional privileges and immunities may be granted by the receiving State, a diplomatic agent who is a
national of or permanently a resident in that State shall enjoy only immunity from jurisdiction, and inviolability, in respect of official acts
performed in the exercise of his functions."
4. Vienna Convention on Consular Relations
"Article 41 (1): Consular officials shall not be liable to arrest or detention pending trial, except in the case of a grave crime and pursuant to
a decision by the competent judicial authority.
xxx xxx xxx
Article 43 (1): Consular officers and consular employees shall not be amenable to the jurisdiction of the judicial or administrative authorities
of the receiving State in respect of acts performed in the exercise of consular functions.
Article 43 (2): The provisions of paragraph 1 of this Article shall not, however, apply in respect of a civil action either: (a) arising out of a
contract concluded by a consular officer or a consular employee in which he did not contract expressly or impliedly as an agent of the
sending State; or (b) by a third party for damage arising from an accident in the receiving State caused by a vehicle, vessel or aircraft."
5. Convention on the Privileges and Immunities of the Specialized Agencies
"Section 4: The specialized agencies, their property and assets, wherever located and by whomsoever held, shall enjoy immunity from
every form of legal process except in so far as in any particular case they have expressly waived their immunity. It is, however, understood
that no waiver of immunity shall extend to any measure of execution.
Section 13 (a): Representatives of members at meetings convened by a specialized agency shall, while exercising their functions and
during their journeys to and from the place of meeting, enjoy immunity from personal arrest or detention and from seizure of their personal
baggage, and in respect of words spoken or written and all acts done by them in their official capacity, immunity from legal process of
every kind.
xxx xxx xxx
Section 19 (a): Officials of the specialized agencies shall be immune from legal process in respect of words spoken or written and all acts
performed by them in their official capacity.
xxx xxx xxx
Section 21: In addition to the immunities and privileges specified in sections 19 and 20, the executive head of each specialized agency,
including a any official acting on his behalf during his absence from duty, shall be accorded in respect of himself, his spouse and minor
children, the privileges and immunities, exemptions and facilities accorded to diplomatic envoys, in accordance with international law."
6. Charter of the ADB
"Article 50 (1): The Bank shall enjoy immunity from every form of legal process, except in cases arising out of or in connection with the
exercise of its powers to borrow money, to guarantee obligations, or to buy and sell or underwrite the sale of securities, in which cases
actions may be brought against the Bank in a court of competent jurisdiction in the territory of a country in which the Bank has its principal
or a branch office, or has appointed an agent for the purpose of accepting service or notice of process, or has issued or guaranteed
securities.
xxx xxx xxx
Article 55 (i): All Governors, Directors, alternates, officers and employees of the Bank, including experts performing missions for the Bank
shall be immune from legal process with respect to acts performed by them in their official capacity, except when the Bank waives the
immunity."
7. ADB Headquarters Agreement
"Section 5: The Bank shall enjoy immunity from every form of legal process, except in cases arising out of or in connection with the
exercise of its powers to borrow money, to guarantee obligations, or to buy and sell or underwrite the sale of securities, in which cases
actions may be brought against the Bank in a court of competent jurisdiction in the Republic of the Philippines.
xxx xxx xxx
Section 44: Governors, other representatives of Members, Directors, the President, Vice-President and executive officers as may be
agreed upon between the Government and the Bank shall enjoy, during their stay in the Republic of the Philippines in connection with their
official duties with the Bank: (a) immunity from personal arrest or detention and from seizure of their personal baggage; (b) immunity from
legal process of every kind in respect of words spoken or written and all acts done by them in their official capacity; and (c) in respect of
other matters not covered in (a) and (b) above, such other immunities, exemptions, privileges and facilities as are enjoyed by members of
diplomatic missions of comparable rank, subject to corresponding conditions and obligations.
Section 45 (a): Officers and staff of the Bank, including for the purposes of this Article experts and consultants performing missions for the
Bank, shall enjoy . . . immunity from legal process with respect to acts performed by them in their official capacity, except when the Bank
waives the immunity."
II
There are three major differences between diplomatic and international immunities. Firstly, one of the recognized limitations of diplomatic immunity is
that members of the diplomatic staff of a mission may be appointed from among the nationals of the receiving State only with the express consent of
that State; apart from inviolability and immunity from jurisdiction in respect of official acts performed in the exercise of their functions, nationals enjoy
only such privileges and immunities as may be granted by the receiving State. International immunities may be specially important in relation to the
State of which the official is a national. Secondly, the immunity of a diplomatic agent from the jurisdiction of the receiving State does not exempt him
from the jurisdiction of the sending State; in the case of international immunities there is no sending State and an equivalent for the jurisdiction of the
Sending State therefore has to be found either in waiver of immunity or in some international disciplinary or judicial procedure. Thirdly, the effective
sanctions which secure respect for diplomatic immunity are the principle of reciprocity and the danger of retaliation by the aggrieved State;
international immunities enjoy no similar protection.
14

The generally accepted principles which are now regarded as the foundation of international immunities are contained in the ILO Memorandum,
which reduced them in three basic propositions, namely: (1) that international institutions should have a status which protects them against control or
interference by any one government in the performance of functions for the effective discharge of which they are responsible to democratically
constituted international bodies in which all the nations concerned are represented; (2) that no country should derive any financial advantage by
levying fiscal charges on common international funds; and (3) that the international organization should, as a collectivity of States Members, be
accorded the facilities for the conduct of its official business customarily extended to each other by its individual member States. The thinking
underlying these propositions is essentially institutional in character. It is not concerned with the status, dignity or privileges of individuals, but with
the elements of functional independence necessary to free international institutions from national control and to enable them to discharge their
responsibilities impartially on behalf of all their members.
15

III
Positive international law has devised three methods of granting privileges and immunities to the personnel of international organizations. The first is
by simple conventional stipulation, as was the case in the Hague Conventions of 1899 and 1907. The second is by internal legislation whereby the
government of a state, upon whose territory the international organization is to carry out its functions, recognizes the international character of the
organization and grants, by unilateral measures, certain privileges and immunities to better assure the successful functioning of the organization and
its personnel. In this situation, treaty obligation for the state in question to grant concessions is lacking. Such was the case with the Central
Commission of the Rhine at Strasbourg and the International Institute of Agriculture at Rome. The third is a combination of the first two. In this third
method, one finds a conventional obligation to recognize a certain status of an international organization and its personnel, but the status is
described in broad and general terms. The specific definition and application of those general terms are determined by an accord between the
organization itself and the state wherein it is located. This is the case with the League of Nations, the Permanent Court of Justice, and the United
Nations.
16

The Asian Development Bank and its Personnel fall under this third category.
There is a connection between diplomatic privileges and immunities and those extended to international officials. The connection consists in the
granting, by contractual provisions, of the relatively well-established body of diplomatic privileges and immunities to international functionaries. This
connection is purely historical. Both types of officials find the basis of their special status in the necessity of retaining functional independence and
freedom from interference by the state of residence. However, the legal relationship between an ambassador and the state to which he is accredited
is entirely different from the relationship between the international official and those states upon whose territory he might carry out his functions.
17

The privileges and immunities of diplomats and those of international officials rest upon different legal foundations. Whereas those immunities
awarded to diplomatic agents are a right of the sending state based on customary international law, those granted to international officials are based
on treaty or conventional law. Customary international law places no obligation on a state to recognize a special status of an international official or
to grant him jurisdictional immunities. Such an obligation can only result from specific treaty provisions.
18

The special status of the diplomatic envoy is regulated by the principle of reciprocity by which a state is free to treat the envoy of another state as its
envoys are treated by that state. The juridical basis of the diplomat's position is firmly established in customary international law. The diplomatic
envoy is appointed by the sending State but it has to make certain that the agreement of the receiving State has been given for the person it
proposes to accredit as head of the mission to that State.
19

The staff personnel of an international organization the international officials assume a different position as regards their special status. They
are appointed or elected to their position by the organization itself, or by a competent organ of it; they are responsible to the organization and their
official acts are imputed to it. The juridical basis of their special position is found in conventional law,
20
since there is no established basis of usage or
custom in the case of the international official. Moreover, the relationship between an international organization and a member-state does not admit
of the principle of reciprocity,
21
for it is contradictory to the basic principle of equality of states. An international organization carries out functions in
the interest of every member state equally. The international official does not carry out his functions in the interest of any state, but in serving the
organization he serves, indirectly, each state equally. He cannot be, legally, the object of the operation of the principle of reciprocity between states
under such circumstances. It is contrary to the principle of equality of states for one state member of an international organization to assert a
capacity to extract special privileges for its nationals from other member states on the basis of a status awarded by it to an international organization.
It is upon this principle of sovereign equality that international organizations are built.
It follows from this same legal circumstance that a state called upon to admit an official of an international organization does not have a capacity to
declare him persona non grata.
The functions of the diplomat and those of the international official are quite different. Those of the diplomat are functions in the national interest. The
task of the ambassador is to represent his state, and its specific interest, at the capital of another state. The functions of the international official are
carried out in the international interest. He does not represent a state or the interest of any specific state. He does not usually "represent" the
organization in the true sense of that term. His functions normally are administrative, although they may be judicial or executive, but they are rarely
political or functions of representation, such as those of the diplomat.
There is a difference of degree as well as of kind. The interruption of the activities of a diplomatic agent is likely to produce serious harm to the
purposes for which his immunities were granted. But the interruption of the activities of the international official does not, usually, cause serious
dislocation of the functions of an international secretariat.
22

On the other hand, they are similar in the sense that acts performed in an official capacity by either a diplomatic envoy or an international official are
not attributable to him as an individual but are imputed to the entity he represents, the state in the case of the diplomat, and the organization in the
case of the international official.
23

IV
Looking back over 150 years of privileges and immunities granted to the personnel of international organizations, it is clear that they were accorded
a wide scope of protection in the exercise of their functions The Rhine Treaty of 1804 between the German Empire and France which provided "all
the rights of neutrality" to persons employed in regulating navigation in the international interest; The Treaty of Berlin of 1878 which granted the
European Commission of the Danube "complete independence of territorial authorities" in the exercise of its functions; The Covenant of the League
which granted "diplomatic immunities and privileges." Today, the age of the United Nations finds the scope of protection narrowed. The current
tendency is to reduce privileges and immunities of personnel of international organizations to a minimum. The tendency cannot be considered as a
lowering of the standard but rather as a recognition that the problem on the privileges and immunities of international officials is new. The solution to
the problem presented by the extension of diplomatic prerogatives to international functionaries lies in the general reduction of the special position of
both types of agents in that the special status of each agent is granted in the interest of function. The wide grant of diplomatic prerogatives was
curtailed because of practical necessity and because the proper functioning of the organization did not require such extensive immunity for its
officials. While the current direction of the law seems to be to narrow the prerogatives of the personnel of international organizations, the reverse is
true with respect to the prerogatives of the organizations themselves, considered as legal entities. Historically, states have been more generous in
granting privileges and immunities to organizations than they have to the personnel of these organizations.
24

Thus, Section 2 of the General Convention on the Privileges and Immunities of the United Nations states that the UN shall enjoy immunity from every
form of legal process except insofar as in any particular case it has expressly waived its immunity. Section 4 of the Convention on the Privileges and
Immunities of the Specialized Agencies likewise provides that the specialized agencies shall enjoy immunity from every form of legal process subject
to the same exception. Finally, Article 50(1) of the ADB Charter and Section 5 of the Headquarters Agreement similarly provide that the bank shall
enjoy immunity from every form of legal process, except in cases arising out of or in connection with the exercise of its powers to borrow money, to
guarantee obligations, or to buy and sell or underwrite the sale of securities.
The phrase "immunity from every form of legal process" as used in the UN General Convention has been interpreted to mean absolute immunity
from a state's jurisdiction to adjudicate or enforce its law by legal process, and it is said that states have not sought to restrict that immunity of the
United Nations by interpretation or amendment. Similar provisions are contained in the Special Agencies Convention as well as in the ADB Charter
and Headquarters Agreement. These organizations were accorded privileges and immunities in their charters by language similar to that applicable
to the United Nations. It is clear therefore that these organizations were intended to have similar privileges and immunities.
25
From this, it can be
easily deduced that international organizations enjoy absolute immunity similar to the diplomatic prerogatives granted to diplomatic envoys.
Even in the United States this theory seems to be the prevailing rule. The Foreign Sovereign Immunities Act was passed adopting the "restrictive
theory" limiting the immunity of states under international law essentially to activities of a kind not carried on by private persons. Then the
International Organizations Immunities Act came into effect which gives to designated international organizations the same immunity from suit and
every form of judicial process as is enjoyed by foreign governments. This gives the impression that the Foreign Sovereign Immunities Act has the
effect of applying the restrictive theory also to international organizations generally. However, aside from the fact that there was no indication in its
legislative history that Congress contemplated that result, and considering that the Convention on Privileges and Immunities of the United Nations
exempts the United Nations "from every form of legal process," conflict with the United States obligations under the Convention was sought to be
avoided by interpreting the Foreign Sovereign Immunities Act, and the restrictive theory, as not applying to suits against the United Nations.
26

On the other hand, international officials are governed by a different rule. Section 18(a) of the General Convention on Privileges and Immunities of
the United Nations states that officials of the United Nations shall be immune from legal process in respect of words spoken or written and all acts
performed by them in their official capacity. The Convention on Specialized Agencies carries exactly the same provision. The Charter of the ADB
provides under Article 55(i) that officers and employees of the bank shall be immune from legal process with respect to acts performed by them in
their official capacity except when the Bank waives immunity. Section 45 (a) of the ADB Headquarters Agreement accords the same immunity to the
officers and staff of the bank. There can be no dispute that international officials are entitled to immunity only with respect to acts performed in their
official capacity, unlike international organizations which enjoy absolute immunity.
Clearly, the most important immunity to an international official, in the discharge of his international functions, is immunity from local jurisdiction.
There is no argument in doctrine or practice with the principle that an international official is independent of the jurisdiction of the local authorities for
his official acts. Those acts are not his, but are imputed to the organization, and without waiver the local courts cannot hold him liable for them. In
strict law, it would seem that even the organization itself could have no right to waive an official's immunity for his official acts. This permits local
authorities to assume jurisdiction over an individual for an act which is not, in the wider sense of the term, his act at all. It is the organization itself, as
a juristic person, which should waive its own immunity and appear in court, not the individual, except insofar as he appears in the name of the
organization. Provisions for immunity from jurisdiction for official acts appear, aside from the aforementioned treatises, in the constitution of most
modern international organizations. The acceptance of the principle is sufficiently widespread to be regarded as declaratory of international law.
27

V
What then is the status of the international official with respect to his private acts?
Section 18 (a) of the General Convention has been interpreted to mean that officials of the specified categories are denied immunity from local
jurisdiction for acts of their private life and empowers local courts to assume jurisdiction in such cases without the necessity of waiver.
28
It has earlier
been mentioned that historically, international officials were granted diplomatic privileges and immunities and were thus considered immune for both
private and official acts. In practice, this wide grant of diplomatic prerogatives was curtailed because of practical necessity and because the proper
functioning of the organization did not require such extensive immunity for its officials. Thus, the current status of the law does not maintain that
states grant jurisdictional immunity to international officials for acts of their private lives.
29
This much is explicit from the Charter and Headquarters
Agreement of the ADB which contain substantially similar provisions to that of the General Convention.
VI
Who is competent to determine whether a given act is private or official?
This is an entirely different question. In connection with this question, the current tendency to narrow the scope of privileges and immunities of
international officials and representatives is most apparent. Prior to the regime of the United Nations, the determination of this question rested with
the organization and its decision was final. By the new formula, the state itself tends to assume this competence. If the organization is dissatisfied
with the decision, under the provisions of the General Convention of the United States, or the Special Convention for Specialized Agencies, the
Swiss Arrangement, and other current dominant instruments, it may appeal to an international tribunal by procedures outlined in those instruments.
Thus, the state assumes this competence in the first instance. It means that, if a local court assumes jurisdiction over an act without the necessity of
waiver from the organization, the determination of the nature of the act is made at the national level.
30

It appears that the inclination is to place the competence to determine the nature of an act as private or official in the courts of the state concerned.
That the prevalent notion seems to be to leave to the local courts determination of whether or not a given act is official or private does not
necessarily mean that such determination is final. If the United Nations questions the decision of the Court, it may invoke proceedings for settlement
of disputes between the organization and the member states as provided in Section 30 of the General Convention. Thus, the decision as to whether
a given act is official or private is made by the national courts in the first instance, but it may be subjected to review in the international level if
questioned by the United Nations.
31

A similar view is taken by Kunz, who writes that the "jurisdiction of local courts without waiver for acts of private life empowers the local courts to
determine whether a certain act is an official act or an act of private life," on the rationale that since the determination of such question, if left in the
hands of the organization, would consist in the execution, or non-execution, of waiver, and since waiver is not mentioned in connection with the
provision granting immunities to international officials, then the decision must rest with local courts.
32

Under the Third Restatement of the Law, it is suggested that since an international official does not enjoy personal inviolability from arrest or
detention and has immunity only with respect to official acts, he is subject to judicial or administrative process and must claim his immunity in the
proceedings by showing that the act in question was an official act. Whether an act was performed in the individual's official capacity is a question for
the court in which a proceeding is brought, but if the international organization disputes the court's finding, the dispute between the organization and
the state of the forum is to be resolved by negotiation, by an agreed mode of settlement or by advisory opinion of the International Court of Justice.
33

Recognizing the difficulty that by reason of the right of a national court to assume jurisdiction over private acts without a waiver of immunity, the
determination of the official or private character of a particular act may pass from international to national control, Jenks proposes three ways of
avoiding difficulty in the matter. The first would be for a municipal court before which a question of the official or private character of a particular act
arose to accept as conclusive in the matter any claim by the international organization that the act was official in character, such a claim being
regarded as equivalent to a governmental claim that a particular act is an act of State. Such a claim would be in effect a claim by the organization
that the proceedings against the official were a violation of the jurisdictional immunity of the organization itself which is unqualified and therefore not
subject to delimitation in the discretion of the municipal court. The second would be for a court to accept as conclusive in the matter a statement by
the executive government of the country where the matter arises certifying the official character of the act. The third would be to have recourse to the
procedure of international arbitration. Jenks opines that it is possible that none of these three solutions would be applicable in all cases; the first
might be readily acceptable only in the clearest cases and the second is available only if the executive government of the country where the matter
arises concurs in the view of the international organization concerning the official character of the act. However, he surmises that taken in
combination, these various possibilities may afford the elements of a solution to the problem.
34

One final point. The international official's immunity for official acts may be likened to a consular official's immunity from arrest, detention, and
criminal or civil process which is not absolute but applies only to acts or omissions in the performance of his official functions, in the absence of
special agreement. Since a consular officer is not immune from all legal process, he must respond to any process and plead and prove immunity on
the ground that the act or omission underlying the process was in the performance of his official functions. The issue has not been authoritatively
determined, but apparently the burden is on the consular officer to prove his status as well as his exemption in the circumstances. In the United
States, the US Department of State generally has left it to the courts to determine whether a particular act was within a consular officer's official
duties.
35

Submissions
On the bases of the foregoing disquisitions, I submit the following conclusions:
First, petitioner Liang, a bank official of ADB, is not entitled to diplomatic immunity and hence his immunity is not absolute.
Under the Vienna Convention on Diplomatic Relations, a diplomatic envoy is immune from criminal jurisdiction of the receiving State for all acts,
whether private or official, and hence he cannot be arrested, prosecuted and punished for any offense he may commit, unless his diplomatic
immunity is waived.
36
On the other hand, officials of international organizations enjoy "functional" immunities, that is, only those necessary for the
exercise of the functions of the organization and the fulfillment of its purposes.
37
This is the reason why the ADB Charter and Headquarters
Agreement explicitly grant immunity from legal process to bank officers and employees only with respect to acts performed by them in their official
capacity, except when the Bank waives immunity. In other words, officials and employees of the ADB are subject to the jurisdiction of the local courts
for their private acts, notwithstanding the absence of a waiver of immunity.
Petitioner cannot also seek relief under the mantle of "immunity from every form of legal process" accorded to ADB as an international organization.
The immunity of ADB is absolute whereas the immunity of its officials and employees is restricted only to official acts. This is in consonance with the
current trend in international law which seeks to narrow the scope of protection and reduce the privileges and immunities granted to personnel of
international organizations, while at the same time aims to increase the prerogatives of international organizations.
Second, considering that bank officials and employees are covered by immunity only for their official acts, the necessary inference is that the
authority of the Department of Affairs, or even of the ADB for that matter, to certify that they are entitled to immunity is limited only to acts done in
their official capacity. Stated otherwise, it is not within the power of the DFA, as the agency in charge of the executive department's foreign relations,
nor the ADB, as the international organization vested with the right to waive immunity, to invoke immunity for private acts of bank officials and
employees, since no such prerogative exists in the first place. If the immunity does not exist, there is nothing to certify.
As an aside, ADB cannot even claim to have the right to waive immunity for private acts of its officials and employees. The Charter and the
Headquarters Agreement are clear that the immunity can be waived only with respect to official acts because this is only the extent to which the
privilege has been granted. One cannot waive the right to a privilege which has never been granted or acquired.
Third, I choose to adopt the view that it is the local courts which have jurisdiction to determine whether or not a given act is official or private. While
there is a dearth of cases on the matter under Philippine jurisprudence, the issue is not entirely novel.
The case of M.H. Wylie, et al. vs. Rarang, et al.
38
concerns the extent of immunity from suit of the officials of a United States Naval Base inside the
Philippine territory. Although a motion to dismiss was filed by the defendants therein invoking their immunity from suit pursuant to the RP-US Military
Bases Agreement, the trial court denied the same and, after trial, rendered a decision declaring that the defendants are not entitled to immunity
because the latter acted beyond the scope of their official duties. The Court likewise applied the ruling enunciated in the case of Chavez vs.
Sandiganbayan
39
to the effect that a mere invocation of the immunity clause does not ipso facto result in the charges being automatically dropped.
While it is true that the Chavez case involved a public official, the Court did not find any substantial reason why the same rule cannot be made to
apply to a US official assigned at the US Naval Station located in the Philippines. In this case, it was the local courts which ascertained whether the
acts complained of were done in an official or personal capacity.
In the case of The Holy See vs. Rosario, Jr.,
40
a complaint for annulment of contract of sale, reconveyance, specific performance and damages was
filed against petitioner. Petitioner moved to dismiss on the ground of, among others, lack of jurisdiction based on sovereign immunity from suit, which
was denied by the trial court. A motion for reconsideration, and subsequently, a "Motion for a Hearing for the Sole Purpose of Establishing Factual
Allegation for Claim of Immunity as a Jurisdictional Defense" were filed by petitioner. The trial court deferred resolution of said motions until after trial
on the merits. On certiorari, the Court there ruled on the issue of petitioner's non-suability on the basis of the allegations made in the pleadings filed
by the parties. This is an implicit recognition of the court's jurisdiction to ascertain the suability or non-suability of the sovereign by assessing the
facts of the case. The Court hastened to add that when a state or international agency wishes to plead sovereign or diplomatic immunity in a foreign
court, in some cases, the defense of sovereign immunity was submitted directly to the local courts by the respondents through their private counsels,
or where the foreign states bypass the Foreign Office, the courts can inquire into the facts and make their own determination as to the nature of the
acts and transactions involved.
Finally, it appears from the records of this case that petitioner is a senior economist at ADB and as such he makes country project profiles which will
help the bank in deciding whether to lend money or support a particular project to a particular country.
41
Petitioner stands charged of grave slander
for allegedly uttering defamatory remarks against his secretary, the private complainant herein. Considering that the immunity accorded to petitioner
is limited only to acts performed in his official capacity, it becomes necessary to make a factual determination of whether or not the defamatory
utterances were made pursuant and in relation to his official functions as a senior economist.
I vote to deny the motion for reconsideration.
Davide, Jr., C.J., concurs.


G.R. No. L-23133 August 20, 1925
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
ANASTASIO DAGMAN, ET AL., defendants-appellants.
Valentin J. Alcid for appellants.
Attorney-General Villa-Real for appellee.
MALCOLM, J.:
On the 2nd of May, 1924, Elias Magbual, en employee of the hacienda "La Esperanza," while in the performance of his duties, was treacherous
attacked by a crowd of person, probably about forty in number and was nearly killed. The motive of the crime was that the persons who harbored
enmity against the Magbual had previously been dispossessed of portions of the land by judicial order. The attack began by the crowd shouting
"Avance" and with Magbual attempting to escape. But a stone thrown by Anastasio Dagman hit Magbual in the breast, and knocked him down. In
this position, he was attacked by Luis Pacunla who wounded him with a lance. Magbual made another attempt to flee only to fall again and to receive
wounds made by bolos and clubs wielded by the accused. Magbual escaped death from his tormentors by the use of feigning death.
On these facts, seven persons, Luis Pacunla, Andres Rebollido, Isabelo Rebollido, Juan Olanan, Anastasio Dagman, Valentin Tabladillo, and
Luciano Pacunla, were charged in the Court of First Instance of Nueva Ecija with the crime of frustrated murder. After trial, each of the accused was
found guilty by the Honorable Eduardo Gutierrez David, Judge of First Instance, of the crime of frustrated homicide and was sentenced accordingly.
From the judgment last mentioned, all of the defendants have appealed. In their behalf, two errors are assigned and argued, namely, (1) that the trial
judge erred in finding that the accused had the intention to kill Elias Magbual, the offended party, and (2) that the trial judge likewise erred in finding
that there was an agreement to kill Elias Magbual and therefore in sentencing all of the accused to the same penalty, without taking into account the
participation of each of one of them in the commission of the crime, if any.
Neither of these points is well taken. The trial judge found each of the accused to have been proved guilty beyond a reasonable doubt of a crime
included in the information. There is ample proof to substantiate this finding. The murderous intent of the accused and their joint purpose are likewise
clearly demonstrated.
The trial judge, it will be recalled, found the defendants guilty of the crime of frustrated homicide. The Attorney-General, however, recommends that
the crime be classified as frustrated murder in view of the presence of the qualifying circumstance of treachery, and that the penalty then be placed
in the maximum of that provide by law because of the presence of the aggravating circumstance that prohibited arms were use by the assailants. A
majority of the court agree with the Attorney-General. We believe the felony should be classified as frustrated rather than attempted, under the law
and the local jurisprudence.
The murder should be regarded as frustrated because the offenders performed all of the acts of execution which should precede the felony as
consequence but which, nevertheless, did not produce it by reason of causes independent of the will of the perpetrators; in this instance, the playing
possum by Magbual. (Penal Code, art. 3, par. 2.) There was an intent upon the part of the assailants to take the life of the person attacked, which
intent may be gathered from the circumstances surrounding the attack; in this instance, the nature of the wounds, the cry of the accused, "Vamos a
matarle," and their fingering the nose of Magbual to see if respiration continued. (U.S. vs. Mendoza [1918], 38 Phil., 691; U.S. vs. Sanchez [1911], 20
Phil., 427; U.S. vs. Domingo and Dolor [1911], 18 Phil., 250; U.S. vs. Marasigan [1908], 11 Phil., 27; U.S. vs. Reyes [1906], 6 Phil., 38 U.S. vs. Sabio
[1903], 2 Phil., 485; U.S. vs. Taguibao [1901], 1 Phil., 16.) Deadly weapons were used, blows were directed at the vital parts of the body, the
aggressors stated their purpose to kill and thought they had killed. The subjective phase of the crime was entirely passed, and subjectively speaking,
the crime was complete. (U.S. vs. Eduave [1917], 36 Phil., 209.) The particular parts of the body of the person struck during the assault, the deadly
character of the weapons used, the violence of the attack, and the accomplishment of the crime with alevosia in such manner as to insure the safety
of the assailants while depriving the victim of the opportunity to make defense, classifies the crime a frustrated murder. (U.S. vs. Sanchez [1911], 20
Phil., 427, citing decisions of the supreme court of Spain of April 17, 1895, September 29, 1881, and December 31, 1890.) And finally, that the victim
did not die, was owing to a chance or accident or reason independent of the criminal act performed. (U.S. Agoncillo and Admana [1916], 33 Phil.,
242.) (See also U.S. vs. Bastas and De la Serna [1905], 5 Phil., 251; U.S. vs. Poblete [1908], 10 Phil., 578; U.S. vs. Domingo and Dolor [1911], 18
Phil., 250; Albert, The Law on Crimes, pp. 31-33; and 30 C.J., 14.)
In the decision in the case of United States vs. Lim San ( [1910], 17 Phil., 273, 276), Mr. Justice Moreland speaking for a unanimous court, in part,
said:
The court found the defendant guilty of the crime of attempted murder. We are unable to agree with that finding. We regard the crime as
frustrated murder. The distinction between frustrated murder and attempted murder is this: In frustrated murder the accused performs all of
the acts which he believes necessary to consummate the crime. Death, fails to follow for causes entirely apart from his will.
In attempted murder the accused begins the commission of the crime by over acts, but involuntarily desists from performing the other acts
necessary to consummate the crime, he being prevented from so doing by some cause outside of his own will. In the case at bar it appears
clearly that the defendant believed that he had performed all of the acts necessary to consummate the crime of murder, and, therefore, of
his own will, desisted from striking further blows. He believed that he had killed Keng Kin. Death did not result for reasons entirely apart
from the will of the accused. This surely stamps the crime as frustrated murder. If, after the first blow, some one had rushed to the
assistance of Keng Kin and by his efforts had prevented the accused from proceeding further in the commission of the crime, the accused
not believing that he had performed all of the acts necessary to cause death, he would have been guilty of attempted murder.
Agreeable to the recommendation of the Attorney-General, the judgment appealed from is modified and each of the defendants and appellants is
sentenced to fourteen years, eight months and one day imprisonment cadena temporal, with the accessory penalties provided by law, and to pay a
one-seventh part of the costs of each instance, and all of the defendants and appellants jointly and severally are sentenced to reimburse the
offended party in the amount of P65 for medical services. So ordered.
Avancea, C.J., Johnson, Ostrand, and Johns, JJ., concur.
Villamor and Villa-Real, JJ., took no part.
Separate Opinions
STREET, J., dissenting:
I dissent on the ground that the offense should be qualified as an attempt to commit homicide and not as frustrated murder.
G.R. No. L-1674 May 9, 1949
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
PABLO SOMERA and FAUSTINO BARNACHEA, defendants-appellants.
Luis L. Lardizabal for appellants.
First Assistant Solicitor General Roberto A. Gianzonand Solicitor Manuel Tomacruz for appellee.
PARAS, J.:
This is an appeal from a judgment of the Court of First Instance of Ilocos Sur finding the appellants, Pablo Somera and Faustino Barnachea, guilty of
Murder and sentencing them to reclusion perpetua to indemnify jointly and severally the heirs of Felix Somera in the sum of P2,000, and to pay the
costs.
In the evening of March 11, 1945, Felix Somera, his children Moises and Redempta, and his houseboy Luis Somera, while proceeding towards their
evacuation place the barrio of Rucab, municipality of Tagudin, IlocosSur, were overtaken by the appellants who were both riding on a horse. Pablo
Somera thereupon shouted at the group of Felix Somera, ". . . of your mother, pueta get out of our way," to which Felix meekly replied, "Please,
Pablo speak in a nicer way." After Pablo had in turn remarked, "Oh! so you are the one," the two appellants, who had alighted from their horse,
began toattack Felix, Faustino Barnachea locking his arms around Felix, and Pablo repeatedly striking Felix with a stone, as a result of which Felix
fell to the ground unconscious. Moises Somera attempted to help his father, but he was prevented by Pablo who hit him with a bolo. Moises attention
for the bolo wound on his hand which he received from Pablo. The appellants also left. After being revived, Felix Somera, with the aid of his two
Children,managed to ride on his horse; and the trio proceeded on their way to the poblacion. They had not covered a long distance, however, when
the children noticed the return of the appellants. Coming from behind, and each taking one side, the appellants suddenly boloed and pulled Felix
Somera from his horse,the attack being continued even after Felix fell. The latter was thereupon dragged to the bushes where Felix, then held by
Faustino Barnachea, was given a bolo thrust by Pablo Somera, where upon the two appellants left. These facts have been proved by the testimony
of Redempta, Moises and LuisSomera. An examination of the dead body by the Sanitary Inspector revealed that Felix received no less than nineteen
wounds, three of which were fatal.
Pablo Somera admits that he alone had killed Felix Somera, but he claims that he did it in self-defense, his version being as follows: Felix Somera
threw a stone which hit and caused appellants' horse to cavort; after the appellants fell, Felix held and boxed Pablo Somera; Faustino Barnachea
was able to pull Felix and thereby to release Pablo; although the latter tried to flee, Felix grabbed his shirt, choked him again and, after saying, "I
amgoing to kill you," swung his bolo at Pablo; avoiding the blow, Pablo returnedthe attack by boloing Felix on the temple and the hands and
thereafter giving many more blows. Consistently with Pablo Somera's theory, Faustino Barnachea maintains that he had no criminal participation in
the fight between Felix and Pablo as he withdrew after seeing the shining bolos of the combatants.
The record fails to show that the principal witness for the prosecution had any special reason for imputing falsely to the appellants the crime of
murder. They are two young boys and a young girl who were with Felix Somera on the occasion in question, although Moises Somera saw the
occurrence only until that point when he had to leave to seek police and medical help. They had narrated the main features of the appellants' attack
with such persuasive effect as to leave no room in our mind for any reasonable doubt as to appellants' guilt.
It is hardly believable that Felix Somera, an old man of sixty-five, would have started a fight against two men of much younger age, one of whom was
admittedly armed. The theory of self-defense on the part of Pablo is clearly negatived by the numerous (19) wounds inflicted upon Felix. Upon the
other hand, such wounds are indicative of aggression and of the participation therein of appellant Faustino Barnachea, as plainly testified to by the
witnesses for the prosecution, especially when account is taken of the obvious fact that neither Pablo Somera nor Faustino Barnachea received any
injury.
The guilty connection of Faustino Barnachea is further demonstrated by the circumstance that he surrendered with Pablo Somera. It is highly
incredible that the former, if he had nothing to do with the crime, would have allowed himself to be thus dragged into the case merely upon invitation
or insistence of Pablo.
We have no doubt that, judging by the way in which they carried out the fatal assault, the two appellants acted from and cooperated in a common
criminal design, and treachery has elevated the killing to the category of murder. The appellants came from behind, covered the two sides of Felix
Somera, and suddenly attacked him with bolo blows, at a time when Felix was undoubtedly still too weak to offer any defense. It should be repeated
that Felix, after the initial assault by the appellants, was able to mount his horse only after being helped by his young companions. There was also
present in the commission of the offense the aggravation circumstance of insult or disregard of the respect due the offended party on account of his
age, but this is offset by the mitigating circumstance of voluntary surrender.
The appealed judgment, being in conformity with the facts and the law, is affirmed with costs. So ordered.
Moran, C.J., Feria, Pablo, Bengzon, Tuason, Montemayor and Reyes, JJ., concur.
Separate Opinions
PERFECTO, J., concurring:
Expect that we believe that the indemnity should be increased to P6,000, in accordance with the decision inPeople vs. Amansec, L-927, we concur
in the above decision.

















G.R. No. L-31012 August 15, 1973
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ARTURO CARANDANG, MARIO BUISER, MONTANO CARAAN and DIOMEDES ESTRELLA, defendants-appellants.
Office of the Solicitor General Felix Q. Antonio, Acting Assistant Solicitor, General Ricardo L. Pronove, Jr. and Solicitor Tomas M. Dilig for plaintiff-
appellee.
Pastor B. Timog for defendant-appellant Arturo Carandang.
Magno T. Bueser for defendants-appellants Mario Buiser, et al.
FERNANDO, J.:
The appeal in this case from a judgment of conviction by the four accused, Arturo Carandang and Diomedes Estrella for the crime of robbery with
rape, with the other two defendants Montano Caraan and Mario Buiser being held liable only for robbery, raises no significant legal question. The
reliance for the reversal sought is made to rest on the plea that the trial judge could have appreciated the evidence differently. It is therefore
premised on the credibility accorded the witnesses for the prosecution, primarily the offended parties themselves. It becomes apparent then why the
burden assumed by appellants is far from easy, considering furthermore that for exculpation, they would rely on the defense of alibi. We cannot
reverse.
From the testimony of the prosecution witnesses, relied upon by the lower court, the offense in question occurred in the early evening of November
28, 1968, while the spouses Gutierrez and Socorro Familiar and their children were taking their supper, their house being located at Barrio Sta.
Veronica, San Pablo City.
1
At that time, there was the sudden appearance of a man, with his face partly covered with a handkerchief and armed with
a gun.
2
He ordered the persons inside the house not to make any noise and to go to the sala; then he put out the light of the Coleman lamp inside
the house. While the Gutierrezes were being taken to the sala, another person, with his face likewise partly covered with a piece of cloth from the
nose down, arrived. The first thing he did was to ask Eugenio Gutierrez for his gun.
3
A negative response so enraged him that he kicked the latter on
the face, asked him to kneel, and said "Your gun or your life."
4
The presence of a light in the room of the house caused one of them to blindfold the
members of the household.
5
Then the house was ransacked and cash amounting to P130.00, a radio valued at P280.00, and a watch valued at
P70.00 taken.
6
The two individuals thus perpetrating such acts were recognized by Gutierrez as the accused Arturo Carandang and Diomedes
Estrella. Moreover he heard talk coming from below the house, asking them to hurry up so they could leave.
7
He did identify the source as the other
two accused Montano Caraan and Mario Buiser, both of whom were known to him for several years, as they were hired to pick coconuts in the
plantation which he was supervising at the time.
8
Not satisfied with what they had done, one of the accused, Arturo Carandang, approached the wife
of Gutierrez, Socorro Familiar, then praying, and pulled her to the kitchen.
9
It was there where her panties were immediately ripped off and she was
asked, at the point of a gun, to lie down.
10
Socorro pleaded to Carandang to desist from what he intended to do as she had just given birth, all to no
avail.
11
After he was through with the sexual act, the accused Diomedes Estrella approached her, and, at gun point, was also able to have carnal
knowledge of her.
12
During such assault by Estrella, her blindfold did not conceal things as she kept moving her head; thus she saw the other
accused, Montano Caraan, seated near the stairs.
13
He was also about to do the same thing as his companions, but Socorro asked him to have pity
on her informing him as she did the other two that she had just given birth, and Caraan voluntarily desisted.
14
Thereafter, the party left the house,
before leaving, they threatened the occupants with death, should they report the incident to the authorities.
15
Gutierrez was able to follow them
surreptitiously, and upon reaching the road, he saw that the four accused, the three aforementioned and also Mario Buiser, going to the house of
Otilio Diones. Then and there, he reported the happening to the barrio captain, Isabelo Guevarra. He made sure that the identities the culprits were
revealed.
16

The version for the defense rejected by the lower court was set forth in the brief for appellant Carandang in these words: "That on November 28,
1968, and a year prior thereto, he has been living in the house of spouses Otilio Diones and Jacinta Saba in barrio Santa Veronica, San Pablo City;
that on morning of November 28, 1969, appellant Arturo Carandang went to the ricefield he was farming for spouses Otilio Diones and Jacinta Saba,
and returned home for lunch at 11:00 A.M. In the afternoon, he also worked in the ricefield. On his way home he went to a [place] and gathered
fodder for his carabao, returning home at about 4:30 P.M. After he had fed the carabao, he rested in a bamboo bed under the house until he was
called by his Ate (Jacinta Saba) as supper then was ready. At about 6:00 P.M., his three co-accused Diomedes Estrella, Mario Buiser and Montano
Caraan arrived. He accompanied Montano Caraan to the house of Miss Oliva Diones, whom Caraan was courting. They stayed in the house of Oliva
Diones for about an hour and a half, after which, they returned to the house of spouses Otilio Diones and Jacinta Saba. The three co-accused of
appellant Arturo Carandang left at about 10:30 P.M., and appellant retired to bed. Thereafter, policemen Nazario Perez arrived and inquired for
appellant Carandang; that he was aroused from his sleep and told that they will bring him to barrio captain who wanted to talk to him; that after
patrolman had a brief conversation with the barrio captain, he was told that he will be utilized as guide to locate his three co-accused. However, he
was taken to the police headquarters of San Pablo City, and detained."
17
As noted, the judgment was one of conviction, the appealed decision being
notable for the rather detailed analysis of the evidence. After a study of the transcript of testimony as well as the briefs for both the prosecution and
the defense, the state being represented by the then Solicitor General, now Associate Justice Felix Antonio, aided by the then Assistant Solicitor
General, now Judge Ricardo L. Pronove, Jr., who took pains to present quite a fair and objective account of this unfortunate occurrence, we have
reached the conclusion, as noted at the outset, that a reversal is not warranted.
1. All four appellants, in the two briefs submitted, one for Carandang by Attorney Salvador B. Timog, and the other for Estrella, Caraan and Buiser by
Attorney Magno T. Bueser, did direct their line of fire on what they considered to be a failure of the lower court to appreciate correctly what did really
transpire. While the effort to discredit the testimony of the offended parties, the couple Eugenio Gutierrez and Socorro Familiar, evinced their
concern to assure that the rights of their clients be fully protected, it cannot be said to possess a persuasive ring. It is not easy to raise doubt as to
the guilt of the accused for the offenses for which they were indicted and found guilty. The lower court certainly has not laid itself open to any
accusation of being remiss in analyzing the evidence on the part of both the state and the accused. Much less can it be alleged that there was
lacking then that measure of impartiality required by law of occupants of the bench in their appraisal of testimony that could lead to the loss of liberty,
in the case of heinous offenses, even of the right of the prisoner at the dock to life itself.
Moreover, a recent decision would indicate the difficulty thus faced by appellants in seeking to overturn their conviction on this ground alone. Thus
in People v. Angcap,
18
it was said: "There is need to stress anew that this Court has long been committed to the principle that the determination by a
trial judge who could weigh and appraise the testimony as to the facts duly proved is entitled to the highest respect, unless it could be shown that he
ignored or disregarded circumstances of weight or influence sufficient to call for a different finding. So it was announced by Justice Moreland in 1915
in the first case of consequence enunciating such a doctrine. As he pointed out, in the event of a conflict in the testimony of the witnesses, "the
peculiar province of the trial court is to resolve the question of credibility, and, unless there is something in the record impeaching by fair
interpretation the resolution of the trial court in relation to that question, this court will assume that he acted fairly, justly, and legally in the exercise of
that function." So it has been since then. In a case reported in the latest volume of the Philippine Reports, Justice Paredes, speaking for this Court
succinctly stated "that with respect to the credibility of witnesses, the trial court's findings and conclusions, command great respect and weight." Its
more usual formulation was also set forth by Justice Malcolm in these words: "After everything is said and done, we come back, as we invariably do
in cases of this nature, to a recognition of the rule that the Supreme Court will not interfere with the judgment of the trial court in passing on the
credibility of the opposing witnesses, unless there appears in the record some circumstances of weight and influence, which has been overlooked or
the significance of which has been misinterpreted."
19

Nor is their case for a reversal bolstered by their plea of alibi. This is not to lose sight of the fact that the presence elsewhere of the accused would
preclude their participation in a crime. Such a fact, if there be such, has to be shown though by evidence that commands assent. Unfortunately for
appellants in this case, they were unable to do so. The categorical nature of the identification made by the offended spouses placed a burden on
them too difficult to overcome by the allegation that they could not have been the perpetrators of the foul deed. In this connection, an excerpt
from People v. Tapitan
20
is relevant. Thus: "In a 1908 opinion by Justice Torres, the first time the defense of alibi was paid considerable attention,
this Court correctly ruled that such a plea could not prevail against the positive testimony of five witnesses to the effect that the accused far from
being away from the place where the offense took place was indeed present. So it is in the case before us. Such a defense is futile and unavailing.
To the same effect is the following: "The appellants' weak defense of alibi is not sufficient to overcome the positive identification made of them as the
perpetrators of the crime by the witnesses, against whom they could not impute sufficient reason for pointing to them." As we had occasion to remark
in one of our opinion, through Justice Capistrano: 'Alibi is one of the weakest defenses, and is easily fabricated. We have examined the testimonies
in support of this defense of alibi, and have found the same unworthy of credence.' "
21

2. The remaining error assigned in the brief for appellants Estrella, Caraan and Buiser would find fault with the finding of the lower court, allegedly
disregarding the testimony of Dr. Arracleto Polillo who, on November 29, 1968 at 2:00 A.M., examined medically the offended party, Socorro
Familiar.
22
Such an alleged error, on its face, is misleading because this doctor, in answer to a question by the court, readily admitted that before
conducting such examination, the patient "complained that she feels something on her private part because she was raped by somebody."
23
When
asked whether the findings in his medical certificate later issued compatible with such complaint on the part of the patient, this is how he replied:
"Well, Your Honor, the findings here, only one finding here may tally with her complaint."
24
To be more specific, he referred to the "erythematous,
abrasion of the labia menora."
25
There was, though, his statement that "in a true case of rape, the presence of spermatozoa should be
positive."
26
This rather categorical affirmation he qualified by speaking of their being found in the genital organ of the woman in question for at least
twenty-four hours, unless the offended party would wash it. The brief for the three appellants would impress on this Court that doubt does exist as to
rape actually having committed. This is too flimsy an argument to be taken seriously . More than seven hours at least had elapsed by that time from
the sexual assault suffered by the victim. There is nothing improbable then in her cleaning that part of her body. Moreover, from the legal standpoint,
the authoritative pronouncement from People v. Selfaison,
27
the opinion being rendered by Justice Gutierrez David, is to the effect that such a
defense lacks merit. Thus: 'Citing Dr. Anzures' "Lectures on Legal Medicine" which states that an examination within 3 days after intercourse would
reveal the presence of spermatozoa, the appellants underscore the fact that physical examinations to which the complainants were subjected to
were negative as to the presence of spermatozoa. The absence of such spermatozoa, however, does not necessarily mean that the complainants
had not in fact been raped. The very authority cited states that such absence does not necessarily mean that the girl subject of the examination has
not had any sexual intercourse. It need hardly be said here that in the crime of rape, the slightest penetration is enough. In the case of the
complainants, we agree with the trial court that the recent laceration in the hymen and the contusions on the walls of the labia menora, of their
genitals together with the evidence adduced during the trial sufficiently shows that the copulative act had been performed by means of force and
violence. ... In fact, it is not even necessary that there be a medical examination of the victim in cases of rape. Whether or not the charge will prosper
depends upon the evidence offered and so long as such evidence convinces the court, a conviction for rape is proper. At any rate, it is not
improbable that the complainants washed or flushed themselves not only for the sake of cleanliness but more particularly in order to avoid possible
conception. It is, indeed, difficult to believe that the complainants, who are very young and unmarried, would tell a story of defloration, allow the
examination of their private parts, and thereafter permit themselves to be the subject of a public trial, if they were not motivated by an honest desire
to have the culprits apprehended and punished."
28
The last portion of the above excerpt is merely a reiteration of what was set forth inPeople v.
Canastre
29
a 1948 decision, to the effect that this Court is committed to the principle in accord with the traditional psychology of our people inhibiting
a woman from exposing herself to the obloquy that would follow an admission that she had been thus victimized if the truth were otherwise, unless
there be proof of a motive weighty enough to make her bear with equanimity the pillory to which she would be thus subjected. What gives force to
such an observation is that here, the husband, who himself must certainly bear the brunt of shame at this unfortunate incident, did likewise testify to
the violation of his wife.
30

WHEREFORE, the decision of the Circuit Criminal Court of the VIIIth Judicial District of August 26, 1969 finding the accused Arturo Lozada
Carandang and Diomedes Estrella y Arcega "guilty beyond reasonable doubt as Principals in the crime of Robbery with Rape and considering the
aggravating circumstances of nighttime, dwelling of the offended party, abuse of superior strength and ignominy, without any mitigating circumstance
to consider, [sentencing] each of them to suffer the penalty of reclusion perpetua, to jointly a severally, with their other co-accused, indemnify the
complaining spouses in the sum of [Four hundred eighty (P480.00) pesos], representing the value of the articles taken, jointly and severally
indemnify the complaining spouses in the sum of [Five thousand (P5,000.00) pesos] by way of damages ..." and the accused Montano Caraan y
Pampolina and Mario Buiser "guilty beyond reasonable doubt as principals in the crime of Robbery, defined and penalized under Article 294
paragraph 5, as amended by Section 6, Republic Act No. 18, and considering the aggravating circumstances of nighttime, dwelling of the offended
party and abuse of superior strength, without any mitigating circumstance to be considered in their favor, [sentencing] them to suffer an
indeterminate penalty ranging from [four (4) years, two (2) months and one (1) day] of prision correccional as minimum to [ten (10) years] of prision
mayor as maximum, to jointly and severally indemnify the offended party in the sum of [Four hundred eighty (P480.00) pesos]"
31
is affirmed. Costs
against appellants.
Makasiar and Esguerra, JJ., concur.
Zaldivar, J., is on leave.
Antonio, J, took no part.
Separate Opinions
TEEHANKEE, J., concurring and dissenting:
The Court's decision, per the main opinion of Mr. Justice Fernando, affirms the lower court's judgment of conviction of, and sentence imposed upon,
the four accused-appellants: two of them, Arturo Carandang and Diomedes Estrella, for the crime of robbery with rape, of which they have been
found "guilty beyond reasonable doubt as principals ... and considering the aggravating circumstances of nighttime, dwelling of the offended party,
abuse of superior strength and ignominy, without any mitigating circumstance" and meted therefor the penalty ofreclusion perpetua, and the
remaining two others, Montano Caraan and Mario Buiser for the crime of robbery, as defined under Article 294, paragraph 5 of the Revised Penal
Code, of which they have likewise been found "guilty beyond reasonable doubt as principals" with the same aggravating circumstances and lack of
any mitigating circumstance and meted therefor an indeterminate penalty of from four years, two months and one day of prision correccional as
minimum to ten years of prision mayor as maximum.
I dissent from the imposition of the lighter penalty of reclusion perpetua as the maximum penalty for the crime ofrobbery with rape upon the two
above first named accused-appellants, Carandang and Estrella, by the application of the penalty provided in Article 294, sub-paragraph 2 of the
Revised Penal Code which imposes only the "penalty of reclusion temporal in its medium period to reclusion perpetua, when the robbery shall have
beenaccompanied by rape" rather than the graver penalty of death for the more serios crime of qualified rape as imposed by Article 335 of the penal
code
1
which provides that "(W)henever the crime of rape is committed with the use of a deadly weapon or by two or more persons, the penalty shall
be reclusion perpetua to death."
Hence, it has been confirmed that the two first named accused-appellants, Carandang and Estrella, aside from robbing the victims, raped Socorro
Familiar one after the other at gunpoint, in the very presence of her husband, and brazenly ignored her pleas for pity and to be spared the pain and
ignominy as she had just given birth.
2

Under Article 335, paragraph 3, third sub-paragraph of the penal code above-quoted, the mandatory penalty forqualified rape thus committed with
the use of a deadly weapon and by two persons and with the presence of theaggravating circumstances above-enumerated is death.
The present case is analogous to the situation in Napolis vs. Court of Appeals
3
where the Court, in a unanimous decision penned by Chief Justice
Roberto Concepcion, overturned previous jurisprudence that ignored the more severepenalty of reclusion temporal imposed on robbery in an
inhabited building under Article 299 of the penal code and imposed the lighter penalty of prision correccional, maximum to prision mayor, medium,
under Article 294, sub-paragraph 2 of the penal code when the robber committed not only the act of simple breaking-in (carrying the heavier penalty)
but further andmore serious acts of violence against or intimidation of persons (which peculiarly carried the lighter penalty). Chief Justice
Concepcion, speaking for the Court, stated that "(T)o our mind, this result and the process of reasoning that has brought it about, defy logic and
reason."
4

This Court, then, in Napolis, abandoning the earlier precedents, held that "(W)e deem it more logical and reasonable to hold, as We do, when
the elements of both provisions are present, that the crime is a complex one, calling for the imposition as provided in Art. 48 of said Code of the
penalty for the most serious offense, in its maximum period ...," as follows:
The fourth assignment of error refers to the characterization of the crime committed and the proper penalty therefor. It should be
noted that the Court of Appeals affirmed the decision of the trial court convicting Napolis, Malana and Satimbre of the crime of
robbery committed by armed persons, in an inhabited house, entry therein having been made by breaking a wall, as provided in
Article 299(a) of the Revised Penal Code, and, accordingly, sentencing Napolis and Satimbre to an indeterminate penalty
ranging from(10) 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, which is in accordance with said legal provision.
In addition, however, to performing said acts, the malefactors had, also, used violence against Ignacio Peaflor, and intimidation
against his wife, thereby infringing Article 294 of the same Code, under conditions falling under sub-paragraph (5) of said article,
which prescribes the penalty of prision correccional in its maximum period to prision mayor in its medium period, which
is lighter than that prescribed in said Article 299, although, factually, the crime committed is more serious than that covered by
the latter provision. This Court had previously ruled
"... that where robbery, though committed in an inhabited house, is characterized byintimidation, this factor
"supplies the controlling qualification," so that the law to apply is article 294 and not article 299 of the
Revised Penal Code. This is on the theory that "robbery which is characterized by violence or intimidation
against the person is evidently graver than ordinary robbery committed by force upon things, because where
violence or intimidation against the person is present there is greater disturbance of the order of society and
the security of the individual." (U.S. vs. Turia, 38 Phil. 346; People vs. Baluyot, 40 Phil. 89) And this view is
followed even where, as in the present case, the penalty to be applied under article 294 is lighter than that
which would result from the application of article 299. ..."
Upon mature deliberation, We find ourselves unable to share the foregoing view. Indeed, one who, bybreaking a wall, enters,
with a deadly weapon, an inhabited house and steals therefrom valuable effects, without violence against or intimidation upon
persons, is punishable under Art. 299 of the Revised Penal Code with reclusion temporal. Pursuant to the above view, adhered
to in previous decisions, if, aside from performing said acts, the thief lays hand upon any person, without committing any of the
crimes or inflicting any of the injuries mentioned in subparagraphs (1) to (4) of Art. 294 of the same Code, the imposable penalty
under paragraph (5) thereof shall be much lighter. To our mind, this result and the process of reasoning that has brought it
about, defy logic and reason.
The argument to the effect that the violence against or intimidation of a person supplies the "controlling qualification," is far from
sufficient to justify said result. We agree with the proposition that robbery with "violence or intimidation against the person is
evidently graver than ordinary robbery committed by force upon things," but, precisely, for this reason, We cannot accept the
conclusion deduced therefrom in the cases above cited reduction of the penalty for the latter offense owing to the concurrence
of violence or intimidation which made it a more serious one. It is, to our mind, more plausible to believe that Art. 294 applies
only where robbery with violence against or intimidation of person takes place without entering an inhabited house, under the
conditions set forth in Art. 299 of the Revised Penal Code.
We deem it more logical and reasonable to hold, as We do, when the elements of both provisions arepresent, that the crime is
a complex one, calling for the imposition as provided in Art. 48 of said Code of the penalty for the most serious offense, in
its maximum period, which, in the case at bar, is reclusion temporal in its maximum period. This penalty should, in turn, be
imposed in its maximum period - from nineteen (19) years, one (1) month and eleven (11) days to twenty (20) years ofreclusion
temporal owing to the presence of the aggravating circumstances of nighttime. In short, the doctrine adopted in U.S v. De los
Santos and applied in U.S. v. Manansala, U.S. v. Turla, People v. Baluyot, Manahan v. People, and People v. Sebastian, is
hereby abandoned and appellant herein should be sentenced to an indeterminate penalty ranging from ten (10) years, and one
(1) day ofprision mayor to nineteen (19) years, one (1) month and eleven (11) days of reclusion temporal.
5

By the same token and rationale I hold that it would be more logical and reasonable to hold that since theelements of both penal
provisions are present, i.e. robbery with rape under Article 294, sub-paragraph 2 andqualified rape commited with the use of a deadly weapon and
by two of the accused under Article 335, that the crime committed is a complex one calling for the imposition, under Article 48 of the penal code,
6
of
the penalty for the most serious offense, in its maximum degree, which in the case at bar, is death for qualified rape (under article 335) rather than
the lighter penalty for the lesser offense of robbery with rape (under Article 294, sub-par. 2).
It would defy reason and logic, in the language of Napolis to hold that if aside from robbery, the robbers bothcommit rape with the use of a deadly
weapon, the imposable penalty (under Article 294) shall be much lighter than that imposed for qualified rape (under Article 335). Since
the elements of both penal provisions are present, Article 48 should be applied by analogy and the penalty for the most serious crime (of qualified
rape rather than robbery with rape) shall be imposed in its maximum which is death.
Since the facts recited in the information as borne out by the evidence show that the two robbers-rapists, Carandang and Estrella, committed acts
that are punishable both by Article 335 (for qualified rape) and by Article 294, sub-paragraph 2 (for robbery with rape), the penalty for the most
serious offense of qualified rape i.e. death should be imposed upon them (with the robbery as an aggravating circumstance, just as prior to the
amendment on June 20, 1964 of Article 335 by Republic Act No. 4111 making rape the most serious offense and imposing the penalty
of death for rape with homicide, rape was considered a mere aggravating circumstance when committed on the occasion of robbery with homicide).
At any rate, even without applying Article 48 on complex crimes (a single act constituting two felonies of robbery with rape and qualified rape) the
proven aggravating circumstances of nighttime, dwelling, and ignominy (abuse of superior strength is absorbed in the qualifying circumstance of rape
committed by two or more persons) warrantper se and call for the imposition of the penalty for qualified rape (reclusion perpetua to death) in its
maximum degree of death. (Parenthetically, it may be noted that robbery with rape like the other felonies of robbery with homicide and robbery with
physical injuries defined and penalized in Article 294, sub-paragraphs 1 to 4, arespecial indivisible crimes and are not the complex crimes covered
under Article 48 of the penal code.
7

Following the reasoning of Napolis, it is more plausible to hold that Article 294, sub-paragraph 2 (providing for the lesser penalty for robbery with
rape) applies only where robbery with simple rape takes place without any of thequalifying circumstances calling for the heavier penalty imposed
Article 335 for qualified rape (e.g. reclusion perpetua to death when committed with use of deadly weapon or by two or more persons,
and death when the victim has become insane or a homicide is committed on the occasion of the rape).
Viewed otherwise, where robbery with rape is commited, but the rape is qualified by the use of a deadly weaponand is committed by two persons,
either of these factors (which the law considers abhorrent and has expressly singled out as warranting imposition of the capital penalty) supplies
the controlling qualification, so that the law to apply is Article 335 and not Article 294 of the penal code.
The information duly charged the two accused Carandang and Estrella with having committed with deadly weapons on the occasion of the robbery
against the spouses Eugenio Gutierrez and Socorro Familiar, the crime of rape against Socorro. Since it is established doctrine that the real nature
of the crime charged is determined not by the title information (robbery with rape) nor by the specification of the provision of the law alleged to have
been violated (none was specified in the information at bar) but by the facts recited in the information, the said two accused should be held guilty of
the crime of qualified rape and be imposed the capital penalty therefor, under Article 335, paragraph 3, third sub-paragraph of the penal code.
Many are the cases in our jurisprudence where the accused has been convicted for the most serious offense charged and proved against him, rather
than for the lesser offense erroneously designated in the information. The courts are the final authority to adjudge what crime has been committed,
and the fiscal's erroneous determination is of no binding effect. The late Chief Justice Moran aptly restated the governing principle, thus: "an
erroneous classification of an act described in detail in the complaint does not prevent the accused from being declared guilty under a different
classification from that made by the fiscal, nor can it affect the sentence that may be entered in the cases. For instance, where an offense is qualified
as a lesioner menos graves, but the facts recited in the information and proved at the trial show that the real offense committed is lesiones graves,
the accused may be convicted for the latter offense. Likewise, where the prosecuting erroneously qualifies an offense as attempted murder, when by
the recitals of the information, the real offense commited is frustrated murder, a judgment of conviction may be rendered upon the latter offense.
Again, where the information recites that the defendant slapped the face of the municipal president (an act which constitutes the offense of assault
upon a person in authority), but the fiscal wrongfully designates the crime as assault upon a mere agent of authority, the error doesnot prevent
conviction under the true offense."
8

Since the Court is however unable to muster the qualified majority required for the imposition of the death penalty upon the two said accused
Carandang and Estrella, the lesser and next lower penalty of reclusion perpetuaimposed by the lower court upon the said accused and affirmed in
the main opinion must stand pro hac vice.
9

I concur unqualifiedly with the other portion of the main opinion finding the remaining two accused, Caraan and Buiser, guilty only of simple robbery
as found by the lower court and affirming the penalty imposed upon them.
Barredo, Makasiar and Esguerra, JJ., concur.
CASTRO, J., dissenting:
The information indicting the appellants Arturo Carandang and Diomedes Estrella, together with two others, recites as follows:
The undersigned City Fiscal accuses Arturo Carandang, Montano Caraan. Diomedes Estrella and Mario Buiser, of the crime of
robbery with rape, committed as follows:
That on or about November 28, 1969, in the City of San Pablo, Republic of the Philippines and within the jurisdiction of the
Honorable Court, the accused above-named conspiring, confederating and mutually helping one another, armed with deadly
weapons, to wit: firearms with intent of gain and against the consent of the owners by means of violence and intimidation against
persons, did then and there willfully, unlawfully and feloniously take from Eugenio Gutierrez and Socorro Familiar, the following
articles with their corresponding value, to wit:
Cash P130.00
Radio 280.00
Watch 70.00
Ring 200.00

P680.00

to the damage and prejudice of the said spouses in the total sum of P680.00; that on the occasion of the said robbery and in
pursuance of their conspiracy, the accused Arturo Carandang and Diomedes Estrella, willfully and unlawfully and feloniously, by
means of force and intimidation, did then and there have carnal knowledge of Socorro Familiar against her will and in her house.
It is needless to restate in full the findings of fact arrived at by the Court. In sum, the two appellants Carandang and Estrella, shortly after robbing the
house of the complainant spouses Eugenio Gutierrez and Socorro Familiar, committed, at gunpoint, the crime of rape upon the person of Socorro.
At the threshold, I deem it essential, for the purposes of this separate opinion, that the pertinent provisions of the Revised Penal Code are restated in
their exact phraseology.
Article 48 gives two and only two conceptual meanings of what is known in our penal law as a "complex crime," each of which calls for the
imposition of the penalty for the more or most serious crime in its maximum period. The said article reads as follows:
ART. 48. Penalty of complex crimes. When a single act constitutes two or more grave or less grave felonies or when an
offense is a necessary means for committing the other, the penalty for the most serious crime shall be imposed, the same to be
applied in its maximum period.
Article 294, par. 2 (under Title Ten, entitled "Crimes Against Property") provides as follows:
ART. 294. Robbery with violence against, or intimidation of persons. Penalties. Any person guilty of robbery with the use of
violence against, or intimidation of any person shall suffer:
xxx xxx xxx
2 . The penalty of reclusion temporal in its medium period to reclusion perpetua, when the robbery shall have been accompanied
by rape or intentional mutilation, or if by reason or on occasion of such robbery, any of the physical injuries penalized in
subdivision 1 of article 263 shall have been inflicted.
Article 335 (under Title Eleven, entitled "Crimes Against Chastity") defines and punishes the offense of rape, as follows:
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.
The crime of rape shall be punished by reclusion perpetua.
Whenever the crime of rape is committed with the use deadly weapon or by two or more persons, the penalty shall be reclusion
perpetua to death.
When by reason or on the occasion of the rape, the victim has become insane, the penalty shall be death.
When the rape is attempted or frustrated and a homicide is committed by reason or on the occasion thereof, the penalty shall be
likewise death.
When by reason or on the occasion of the rape, a homicide is committed, the penalty shall be death. (as amended by Rep. Act
4111).
Construing articles 48, 294 (par. 2) and 335 in application to the undisputed facts obtaining in the case at bar, some members 1 of the Court seek to
introduce into the corpus of our jurisprudence two conflicting and also completely strange (albeit tantalizing) doctrines, namely: first, the offense
of robbery accompanied by rape(penalized by par. 2 of article 294) and the crime of rape (penalized by article 335) are a "complex crime" within the
meaning and intendment of article 48; and/or, second, the offense of robbery accompanied by rape cases as such to be a punishable offense if the
rape is one of the categories described and punished by the last four paragraphs of article 335 (which crime of rape, for the purpose of this opinion, I
will term "qualified rape.")
I wish I could say that I find it difficult to agree. The fact is that I regard these two suggested doctrines as heresy a therefore abhorrent. The
temptation to resort to short-cuts always looms large when one confronts a perplexing, if not bewildering, problem of statutory construction. But it is
precisely in the area of legal hermeneutics, more than in any other area of legal learning, that one must observe utmost care to avoid the pitfalls of
hasty rationalization.
What some members of the Court have thus achieve is not mere legislation in the interstices; they have in point of fact exercised legislative power
(with all its panoply) something that by no conceivable manner can be justified as falling within the periphery of the constitutional warrant
vouchsafed to the Court.
1. Article 48 unambiguously states that a "complex crime" results (1) "when a single act constitutes two or more grave or less grave felonies," or (2)
"when an offense is a necessary means for committing the other." Conceptually, the acts committed by each of the two appellants constitute the
offense of robbery accompanied by rape, as this is defined and punished by par. 2 of article 294. It does not require mastery of logic to realize that
the crime of robbery accompanied by rape cannot fall within any of the two conceptual meanings stated in article 48. Robbery (a crime
against property) and rape (a crime against chastity) are two distinct and separate acts, and are not and by their very intrinsic natures can
never be the product of one single act. And, obviously, robbery cannot be considered a necessary means of committing rape, nor vice versa.
The most serious flaw that plagues the dissenting opinion is that the act of rape in the crime of robbery accompanied by rape which is the self-same
act of rape sought to be punished under article 335 is made to complex itself and this is resorted to, quite clearly, in order to bring forcibly
(although erroneously) into application the last clause of article 48 which reads, "the penalty for the most serious crime shall be imposed, the same to
be applied in its maximum period." Worse yet, the conclusion conveyed is that the offense of robbery accompanied by rape (article 294, par. 2) and
the offense of rape (article 335) resulted from the same act, or that one was a necessary means of committing the other. The fallacies are too glaring
to require elaboration.
In my nearly seventeen years of judicial experience and legal reading, I have not come across, nor has my attention been called to, any instance in
the jurisprudence of Spain and of the Philippines (or of any other country, for that matter), where the crime of robbery accompanied by rape and the
separate, distinct offense of rape were held to be a "complex crime" within the meaning and intendment of article 48 or some such similar provision
of law.
Napolis vs. Court of Appeals (43 SCRA 301), invoked by analogy in the dissenting opinion, is inapropos and inapposite, because of the wide
disparity between the facts in that case and the facts obtaining in the case at bar. The decision in Napolis can be sustained as correct within the
context of that case; but to apply Napolis to the case at bar is unwarranted. Napolis involved the crime of robbery committed by a band in an
inhabited house with the use of violence against and intimidation upon persons; it had absolutely nothing to do with the crime of rape.
Conventional wisdom teaches me that the process of reasoning by analogy, unless explicitly authorized by the language of the particular penal
statute under consideration,
2
is anathema because antithetical to the general philosophy underlying the correct and proper interpretation and
enforcement of penal laws.
2. I fail to understand the reason for the statement in the dissenting opinion that the two accused should be held guilty only of the crime of qualified
rape, without any mention of the robbery committed by them, since it is indubitable from the information by virtue of which they were tried that the
crime imputed to them and the findings of fact conclusively demonstrate that the offense committed by them is robbery accompanied by
qualified rape.
The information in the case at bar clearly and in no uncertain terms indicts Carandang and Estrella of the crime ofrobbery accompanied by rape. To
say that the two are guilty only of the crime of qualified rape is in effect to hold that the crime of qualified rape was not committed on the occasion of
the robbery, or that the crime of robbery disappeared in both the legal and physical sense because of the supervening commission of the qualified
rape, or that the information does not mean what it says. The rationalization in the dissenting opinion which impresses me as too facile, too
expedient, and devoid of reasonable legal or philosophical basis I reject.
3. Where robbery accompanied by qualified rape is committed, the primordial question that inescapably presents itself for resolution is: What is the
imposable penalty?
It is a cardinal mandate of legal exegesis that a court should endeavor to reconcile two apparently conflicting provisions of the same statute, and that
only when the two are indubitably and absolutely repugnant to each other may a court, in the absence of an express repeal, be justified in ruling that
the two provisions must yield to the other.
In the case at bar, this function weighs heavily, in view of the omission by Congress (due to negligence, or the utter absence of conscientious
legislative study and deliberation, or some other cause) of not amending par. 2 of article 294 in order to raise the penalty provided therein for the
offense of robbery accompanied by rape to harmonize with the corresponding increase in penalties for rape provided by the amendatory Republic
Act 4111.
I agree that when the robbery is accompanied by rape, it is irrational, in view of the increase in the penalties for the different categories of rape, to
insist that the penalty prescribed by par. 2 of article 294 for the crime of robbery with rape, which is only reclusion temporal in its medium period
to reclusion perpetua, must be imposed, for the simple reason that the crime of rape has become, by a twist of legislative policy declaration, a graver
offense than the crime of robbery accompanied by rape as punished by par. 2 of article 294.
It is my view that when robbery is accompanied by rape, more logical and acceptable legal interpretative result is that the offense committed is still
denominated robbery accompanied by rape (the term "rape" as used in par. 2 of article 294 is generic and includes simple rape and qualified rape),
but the imposable penalty should be that provided in the proper applicable paragraph of article 335.
In other words, the penalty of reclusion temporal in its medium period to reclusion perpetua prescribed by par. 2 of article 294 for the crime
of robbery accompanied by rape be must be deemed to have been supplanted by the respective penalties provided in article 335, but the self-same
penalty is preserved for the crime of robbery accompanied by intentional mutilation, as well as for the crime of robbery when by reason or on the
occasion thereof any of the physical injuries penalized in subdivision 1 of article 263 shall have been inflicted.
Only thus, and in no other way, can these two provisions of law be harmonized.
3
Article 48 has no bearing or pertinence, nor can it be brought into
play by the process of analogy which process is, in the case at bar, erroneous methodology.
4. Upon the foregoing disquisition, the following conclusions are ineluctable:
(1) The concept of the offense of robbery accompanied by rape is preserved in par. 2 of article 294 of the Revised Penal Code;
(2) Within the meaning and intendment of article 48, the crime of robbery accompanied by rape (par. 2 of article 294) never be complexed with the
offense of rape (article 335) any purpose whatsoever or in whatever situation;
(3) The penalty provided by par. 2 of article 294 for the offense of robbery accompanied by rape, which isreclusion temporal in its medium period
to reclusion perpetua, has been supplanted by necessary and unavoidable implication by the applicable penalties prescribed in article 335, as
amended by Republic Act 4111;
(4) Where the robbery is accompanied by simple rape, the penalty shall be reclusion perpetua; and
(5) Where the robbery is accompanied by qualified rape of any of the categories described in the last four paragraphs of article 335, the imposable
penalty shall be that prescribe by the applicable paragraph of the said article.
Makalintal, Actg. C.J., concurs.
Separate Opinions
TEEHANKEE, J., concurring and dissenting:
The Court's decision, per the main opinion of Mr. Justice Fernando, affirms the lower court's judgment of conviction of, and sentence imposed upon,
the four accused-appellants: two of them, Arturo Carandang and Diomedes Estrella, for the crime of robbery with rape, of which they have been
found "guilty beyond reasonable doubt as principals ... and considering the aggravating circumstances of nighttime, dwelling of the offended party,
abuse of superior strength and ignominy, without any mitigating circumstance" and meted therefor the penalty ofreclusion perpetua, and the
remaining two others, Montano Caraan and Mario Buiser for the crime of robbery, as defined under Article 294, paragraph 5 of the Revised Penal
Code, of which they have likewise been found "guilty beyond reasonable doubt as principals" with the same aggravating circumstances and lack of
any mitigating circumstance and meted therefor an indeterminate penalty of from four years, two months and one day of prision correccional as
minimum to ten years of prision mayor as maximum.
I dissent from the imposition of the lighter penalty of reclusion perpetua as the maximum penalty for the crime ofrobbery with rape upon the two
above first named accused-appellants, Carandang and Estrella, by the application of the penalty provided in Article 294, sub-paragraph 2 of the
Revised Penal Code which imposes only the "penalty of reclusion temporal in its medium period to reclusion perpetua, when the robbery shall have
beenaccompanied by rape" rather than the graver penalty of death for the more serios crime of qualified rape as imposed by Article 335 of the penal
code
1
which provides that "(W)henever the crime of rape is committed with the use of a deadly weapon or by two or more persons, the penalty shall
be reclusion perpetua to death."
Hence, it has been confirmed that the two first named accused-appellants, Carandang and Estrella, aside from robbing the victims, raped Socorro
Familiar one after the other at gunpoint, in the very presence of her husband, and brazenly ignored her pleas for pity and to be spared the pain and
ignominy as she had just given birth.
2

Under Article 335, paragraph 3, third sub-paragraph of the penal code above-quoted, the mandatory penalty forqualified rape thus committed with
the use of a deadly weapon and by two persons and with the presence of theaggravating circumstances above-enumerated is death.
The present case is analogous to the situation in Napolis vs. Court of Appeals
3
where the Court, in a unanimous decision penned by Chief Justice
Roberto Concepcion, overturned previous jurisprudence that ignored the more severepenalty of reclusion temporal imposed on robbery in an
inhabited building under Article 299 of the penal code and imposed the lighter penalty of prision correccional, maximum to prision mayor, medium,
under Article 294, sub-paragraph 2 of the penal code when the robber committed not only the act of simple breaking-in (carrying the heavier penalty)
but further andmore serious acts of violence against or intimidation of persons (which peculiarly carried the lighter penalty). Chief Justice
Concepcion, speaking for the Court, stated that "(T)o our mind, this result and the process of reasoning that has brought it about, defy logic and
reason."
4

This Court, then, in Napolis, abandoning the earlier precedents, held that "(W)e deem it more logical and reasonable to hold, as We do, when
the elements of both provisions are present, that the crime is a complex one, calling for the imposition as provided in Art. 48 of said Code of the
penalty for the most serious offense, in its maximum period ...," as follows:
The fourth assignment of error refers to the characterization of the crime committed and the proper penalty therefor. It should be
noted that the Court of Appeals affirmed the decision of the trial court convicting Napolis, Malana and Satimbre of the crime of
robbery committed by armed persons, in an inhabited house, entry therein having been made by breaking a wall, as provided in
Article 299(a) of the Revised Penal Code, and, accordingly, sentencing Napolis and Satimbre to an indeterminate penalty
ranging from(10) 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, which is in accordance with said legal provision.
In addition, however, to performing said acts, the malefactors had, also, used violence against Ignacio Peaflor, and intimidation
against his wife, thereby infringing Article 294 of the same Code, under conditions falling under sub-paragraph (5) of said article,
which prescribes the penalty of prision correccional in its maximum period to prision mayor in its medium period, which
is lighter than that prescribed in said Article 299, although, factually, the crime committed is more serious than that covered by
the latter provision. This Court had previously ruled
"... that where robbery, though committed in an inhabited house, is characterized byintimidation, this factor
"supplies the controlling qualification," so that the law to apply is article 294 and not article 299 of the
Revised Penal Code. This is on the theory that "robbery which is characterized by violence or intimidation
against the person is evidently graver than ordinary robbery committed by force upon things, because where
violence or intimidation against the person is present there is greater disturbance of the order of society and
the security of the individual." (U.S. vs. Turia, 38 Phil. 346; People vs. Baluyot, 40 Phil. 89) And this view is
followed even where, as in the present case, the penalty to be applied under article 294 is lighter than that
which would result from the application of article 299. ..."
Upon mature deliberation, We find ourselves unable to share the foregoing view. Indeed, one who, bybreaking a wall, enters,
with a deadly weapon, an inhabited house and steals therefrom valuable effects, without violence against or intimidation upon
persons, is punishable under Art. 299 of the Revised Penal Code with reclusion temporal. Pursuant to the above view, adhered
to in previous decisions, if, aside from performing said acts, the thief lays hand upon any person, without committing any of the
crimes or inflicting any of the injuries mentioned in subparagraphs (1) to (4) of Art. 294 of the same Code, the imposable penalty
under paragraph (5) thereof shall be much lighter. To our mind, this result and the process of reasoning that has brought it
about, defy logic and reason.
The argument to the effect that the violence against or intimidation of a person supplies the "controlling qualification," is far from
sufficient to justify said result. We agree with the proposition that robbery with "violence or intimidation against the person is
evidently graver than ordinary robbery committed by force upon things," but, precisely, for this reason, We cannot accept the
conclusion deduced therefrom in the cases above cited reduction of the penalty for the latter offense owing to the concurrence
of violence or intimidation which made it a more serious one. It is, to our mind, more plausible to believe that Art. 294 applies
only where robbery with violence against or intimidation of person takes place without entering an inhabited house, under the
conditions set forth in Art. 299 of the Revised Penal Code.
We deem it more logical and reasonable to hold, as We do, when the elements of both provisions arepresent, that the crime is
a complex one, calling for the imposition as provided in Art. 48 of said Code of the penalty for the most serious offense, in
its maximum period, which, in the case at bar, is reclusion temporal in its maximum period. This penalty should, in turn, be
imposed in its maximum period - from nineteen (19) years, one (1) month and eleven (11) days to twenty (20) years ofreclusion
temporal owing to the presence of the aggravating circumstances of nighttime. In short, the doctrine adopted in U.S v. De los
Santos and applied in U.S. v. Manansala, U.S. v. Turla, People v. Baluyot, Manahan v. People, and People v. Sebastian, is
hereby abandoned and appellant herein should be sentenced to an indeterminate penalty ranging from ten (10) years, and one
(1) day ofprision mayor to nineteen (19) years, one (1) month and eleven (11) days of reclusion temporal.
5

By the same token and rationale I hold that it would be more logical and reasonable to hold that since theelements of both penal
provisions are present, i.e. robbery with rape under Article 294, sub-paragraph 2 andqualified rape commited with the use of a deadly weapon and
by two of the accused under Article 335, that the crime committed is a complex one calling for the imposition, under Article 48 of the penal code,
6
of
the penalty for the most serious offense, in its maximum degree, which in the case at bar, is death for qualified rape (under article 335) rather than
the lighter penalty for the lesser offense of robbery with rape (under Article 294, sub-par. 2).
It would defy reason and logic, in the language of Napolis to hold that if aside from robbery, the robbers bothcommit rape with the use of a deadly
weapon, the imposable penalty (under Article 294) shall be much lighter than that imposed for qualified rape (under Article 335). Since
the elements of both penal provisions are present, Article 48 should be applied by analogy and the penalty for the most serious crime (of qualified
rape rather than robbery with rape) shall be imposed in its maximum which is death.
Since the facts recited in the information as borne out by the evidence show that the two robbers-rapists, Carandang and Estrella, committed acts
that are punishable both by Article 335 (for qualified rape) and by Article 294, sub-paragraph 2 (for robbery with rape), the penalty for the most
serious offense of qualified rape i.e. death should be imposed upon them (with the robbery as an aggravating circumstance, just as prior to the
amendment on June 20, 1964 of Article 335 by Republic Act No. 4111 making rape the most serious offense and imposing the penalty
of death for rape with homicide, rape was considered a mere aggravating circumstance when committed on the occasion of robbery with homicide).
At any rate, even without applying Article 48 on complex crimes (a single act constituting two felonies of robbery with rape and qualified rape) the
proven aggravating circumstances of nighttime, dwelling, and ignominy (abuse of superior strength is absorbed in the qualifying circumstance of rape
committed by two or more persons) warrantper se and call for the imposition of the penalty for qualified rape (reclusion perpetua to death) in its
maximum degree of death. (Parenthetically, it may be noted that robbery with rape like the other felonies of robbery with homicide and robbery with
physical injuries defined and penalized in Article 294, sub-paragraphs 1 to 4, arespecial indivisible crimes and are not the complex crimes covered
under Article 48 of the penal code.
7

Following the reasoning of Napolis, it is more plausible to hold that Article 294, sub-paragraph 2 (providing for the lesser penalty for robbery with
rape) applies only where robbery with simple rape takes place without any of thequalifying circumstances calling for the heavier penalty imposed
Article 335 for qualified rape (e.g. reclusion perpetua to death when committed with use of deadly weapon or by two or more persons,
and death when the victim has become insane or a homicide is committed on the occasion of the rape).
Viewed otherwise, where robbery with rape is commited, but the rape is qualified by the use of a deadly weaponand is committed by two persons,
either of these factors (which the law considers abhorrent and has expressly singled out as warranting imposition of the capital penalty) supplies
the controlling qualification, so that the law to apply is Article 335 and not Article 294 of the penal code.
The information duly charged the two accused Carandang and Estrella with having committed with deadly weapons on the occasion of the robbery
against the spouses Eugenio Gutierrez and Socorro Familiar, the crime of rape against Socorro. Since it is established doctrine that the real nature
of the crime charged is determined not by the title information (robbery with rape) nor by the specification of the provision of the law alleged to have
been violated (none was specified in the information at bar) but by the facts recited in the information, the said two accused should be held guilty of
the crime of qualified rape and be imposed the capital penalty therefor, under Article 335, paragraph 3, third sub-paragraph of the penal code.
Many are the cases in our jurisprudence where the accused has been convicted for the most serious offense charged and proved against him, rather
than for the lesser offense erroneously designated in the information. The courts are the final authority to adjudge what crime has been committed,
and the fiscal's erroneous determination is of no binding effect. The late Chief Justice Moran aptly restated the governing principle, thus: "an
erroneous classification of an act described in detail in the complaint does not prevent the accused from being declared guilty under a different
classification from that made by the fiscal, nor can it affect the sentence that may be entered in the cases. For instance, where an offense is qualified
as a lesioner menos graves, but the facts recited in the information and proved at the trial show that the real offense committed is lesiones graves,
the accused may be convicted for the latter offense. Likewise, where the prosecuting erroneously qualifies an offense as attempted murder, when by
the recitals of the information, the real offense commited is frustrated murder, a judgment of conviction may be rendered upon the latter offense.
Again, where the information recites that the defendant slapped the face of the municipal president (an act which constitutes the offense of assault
upon a person in authority), but the fiscal wrongfully designates the crime as assault upon a mere agent of authority, the error doesnot prevent
conviction under the true offense."
8

Since the Court is however unable to muster the qualified majority required for the imposition of the death penalty upon the two said accused
Carandang and Estrella, the lesser and next lower penalty of reclusion perpetuaimposed by the lower court upon the said accused and affirmed in
the main opinion must stand pro hac vice.
9

I concur unqualifiedly with the other portion of the main opinion finding the remaining two accused, Caraan and Buiser, guilty only of simple robbery
as found by the lower court and affirming the penalty imposed upon them.
Barredo, Makasiar and Esguerra, JJ., concur.
CASTRO, J., dissenting:
The information indicting the appellants Arturo Carandang and Diomedes Estrella, together with two others, recites as follows:
The undersigned City Fiscal accuses Arturo Carandang, Montano Caraan. Diomedes Estrella and Mario Buiser, of the crime of
robbery with rape, committed as follows:
That on or about November 28, 1969, in the City of San Pablo, Republic of the Philippines and within the jurisdiction of the
Honorable Court, the accused above-named conspiring, confederating and mutually helping one another, armed with deadly
weapons, to wit: firearms with intent of gain and against the consent of the owners by means of violence and intimidation against
persons, did then and there willfully, unlawfully and feloniously take from Eugenio Gutierrez and Socorro Familiar, the following
articles with their corresponding value, to wit:
Cash P130.00
Radio 280.00
Watch 70.00
Ring 200.00

P680.00

to the damage and prejudice of the said spouses in the total sum of P680.00; that on the occasion of the said robbery and in
pursuance of their conspiracy, the accused Arturo Carandang and Diomedes Estrella, willfully and unlawfully and feloniously, by
means of force and intimidation, did then and there have carnal knowledge of Socorro Familiar against her will and in her house.
It is needless to restate in full the findings of fact arrived at by the Court. In sum, the two appellants Carandang and Estrella, shortly after robbing the
house of the complainant spouses Eugenio Gutierrez and Socorro Familiar, committed, at gunpoint, the crime of rape upon the person of Socorro.
At the threshold, I deem it essential, for the purposes of this separate opinion, that the pertinent provisions of the Revised Penal Code are restated in
their exact phraseology.
Article 48 gives two and only two conceptual meanings of what is known in our penal law as a "complex crime," each of which calls for the
imposition of the penalty for the more or most serious crime in its maximum period. The said article reads as follows:
ART. 48. Penalty of complex crimes. When a single act constitutes two or more grave or less grave felonies or when an
offense is a necessary means for committing the other, the penalty for the most serious crime shall be imposed, the same to be
applied in its maximum period.
Article 294, par. 2 (under Title Ten, entitled "Crimes Against Property") provides as follows:
ART. 294. Robbery with violence against, or intimidation of persons. Penalties. Any person guilty of robbery with the use of
violence against, or intimidation of any person shall suffer:
xxx xxx xxx
2 . The penalty of reclusion temporal in its medium period to reclusion perpetua, when the robbery shall have been accompanied
by rape or intentional mutilation, or if by reason or on occasion of such robbery, any of the physical injuries penalized in
subdivision 1 of article 263 shall have been inflicted.
Article 335 (under Title Eleven, entitled "Crimes Against Chastity") defines and punishes the offense of rape, as follows:
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.
The crime of rape shall be punished by reclusion perpetua.
Whenever the crime of rape is committed with the use deadly weapon or by two or more persons, the penalty shall be reclusion
perpetua to death.
When by reason or on the occasion of the rape, the victim has become insane, the penalty shall be death.
When the rape is attempted or frustrated and a homicide is committed by reason or on the occasion thereof, the penalty shall be
likewise death.
When by reason or on the occasion of the rape, a homicide is committed, the penalty shall be death. (as amended by Rep. Act
4111).
Construing articles 48, 294 (par. 2) and 335 in application to the undisputed facts obtaining in the case at bar, some members 1 of the Court seek to
introduce into the corpus of our jurisprudence two conflicting and also completely strange (albeit tantalizing) doctrines, namely: first, the offense
of robbery accompanied by rape(penalized by par. 2 of article 294) and the crime of rape (penalized by article 335) are a "complex crime" within the
meaning and intendment of article 48; and/or, second, the offense of robbery accompanied by rape cases as such to be a punishable offense if the
rape is one of the categories described and punished by the last four paragraphs of article 335 (which crime of rape, for the purpose of this opinion, I
will term "qualified rape.")
I wish I could say that I find it difficult to agree. The fact is that I regard these two suggested doctrines as heresy a therefore abhorrent. The
temptation to resort to short-cuts always looms large when one confronts a perplexing, if not bewildering, problem of statutory construction. But it is
precisely in the area of legal hermeneutics, more than in any other area of legal learning, that one must observe utmost care to avoid the pitfalls of
hasty rationalization.
What some members of the Court have thus achieve is not mere legislation in the interstices; they have in point of fact exercised legislative power
(with all its panoply) something that by no conceivable manner can be justified as falling within the periphery of the constitutional warrant
vouchsafed to the Court.
1. Article 48 unambiguously states that a "complex crime" results (1) "when a single act constitutes two or more grave or less grave felonies," or (2)
"when an offense is a necessary means for committing the other." Conceptually, the acts committed by each of the two appellants constitute the
offense of robbery accompanied by rape, as this is defined and punished by par. 2 of article 294. It does not require mastery of logic to realize that
the crime of robbery accompanied by rape cannot fall within any of the two conceptual meanings stated in article 48. Robbery (a crime
against property) and rape (a crime against chastity) are two distinct and separate acts, and are not and by their very intrinsic natures can
never be the product of one single act. And, obviously, robbery cannot be considered a necessary means of committing rape, nor vice versa.
The most serious flaw that plagues the dissenting opinion is that the act of rape in the crime of robbery accompanied by rape which is the self-same
act of rape sought to be punished under article 335 is made to complex itself and this is resorted to, quite clearly, in order to bring forcibly
(although erroneously) into application the last clause of article 48 which reads, "the penalty for the most serious crime shall be imposed, the same to
be applied in its maximum period." Worse yet, the conclusion conveyed is that the offense of robbery accompanied by rape (article 294, par. 2) and
the offense of rape (article 335) resulted from the same act, or that one was a necessary means of committing the other. The fallacies are too glaring
to require elaboration.
In my nearly seventeen years of judicial experience and legal reading, I have not come across, nor has my attention been called to, any instance in
the jurisprudence of Spain and of the Philippines (or of any other country, for that matter), where the crime of robbery accompanied by rape and the
separate, distinct offense of rape were held to be a "complex crime" within the meaning and intendment of article 48 or some such similar provision
of law.
Napolis vs. Court of Appeals (43 SCRA 301), invoked by analogy in the dissenting opinion, is inapropos and inapposite, because of the wide
disparity between the facts in that case and the facts obtaining in the case at bar. The decision in Napolis can be sustained as correct within the
context of that case; but to apply Napolis to the case at bar is unwarranted. Napolis involved the crime of robbery committed by a band in an
inhabited house with the use of violence against and intimidation upon persons; it had absolutely nothing to do with the crime of rape.
Conventional wisdom teaches me that the process of reasoning by analogy, unless explicitly authorized by the language of the particular penal
statute under consideration,
2
is anathema because antithetical to the general philosophy underlying the correct and proper interpretation and
enforcement of penal laws.
2. I fail to understand the reason for the statement in the dissenting opinion that the two accused should be held guilty only of the crime of qualified
rape, without any mention of the robbery committed by them, since it is indubitable from the information by virtue of which they were tried that the
crime imputed to them and the findings of fact conclusively demonstrate that the offense committed by them is robbery accompanied by
qualified rape.
The information in the case at bar clearly and in no uncertain terms indicts Carandang and Estrella of the crime ofrobbery accompanied by rape. To
say that the two are guilty only of the crime of qualified rape is in effect to hold that the crime of qualified rape was not committed on the occasion of
the robbery, or that the crime of robbery disappeared in both the legal and physical sense because of the supervening commission of the qualified
rape, or that the information does not mean what it says. The rationalization in the dissenting opinion which impresses me as too facile, too
expedient, and devoid of reasonable legal or philosophical basis I reject.
3. Where robbery accompanied by qualified rape is committed, the primordial question that inescapably presents itself for resolution is: What is the
imposable penalty?
It is a cardinal mandate of legal exegesis that a court should endeavor to reconcile two apparently conflicting provisions of the same statute, and that
only when the two are indubitably and absolutely repugnant to each other may a court, in the absence of an express repeal, be justified in ruling that
the two provisions must yield to the other.
In the case at bar, this function weighs heavily, in view of the omission by Congress (due to negligence, or the utter absence of conscientious
legislative study and deliberation, or some other cause) of not amending par. 2 of article 294 in order to raise the penalty provided therein for the
offense of robbery accompanied by rape to harmonize with the corresponding increase in penalties for rape provided by the amendatory Republic
Act 4111.
I agree that when the robbery is accompanied by rape, it is irrational, in view of the increase in the penalties for the different categories of rape, to
insist that the penalty prescribed by par. 2 of article 294 for the crime of robbery with rape, which is only reclusion temporal in its medium period
to reclusion perpetua, must be imposed, for the simple reason that the crime of rape has become, by a twist of legislative policy declaration, a graver
offense than the crime of robbery accompanied by rape as punished by par. 2 of article 294.
It is my view that when robbery is accompanied by rape, more logical and acceptable legal interpretative result is that the offense committed is still
denominated robbery accompanied by rape (the term "rape" as used in par. 2 of article 294 is generic and includes simple rape and qualified rape),
but the imposable penalty should be that provided in the proper applicable paragraph of article 335.
In other words, the penalty of reclusion temporal in its medium period to reclusion perpetua prescribed by par. 2 of article 294 for the crime
of robbery accompanied by rape be must be deemed to have been supplanted by the respective penalties provided in article 335, but the self-same
penalty is preserved for the crime of robbery accompanied by intentional mutilation, as well as for the crime of robbery when by reason or on the
occasion thereof any of the physical injuries penalized in subdivision 1 of article 263 shall have been inflicted.
Only thus, and in no other way, can these two provisions of law be harmonized.
3
Article 48 has no bearing or pertinence, nor can it be brought into
play by the process of analogy which process is, in the case at bar, erroneous methodology.
4. Upon the foregoing disquisition, the following conclusions are ineluctable:
(1) The concept of the offense of robbery accompanied by rape is preserved in par. 2 of article 294 of the Revised Penal Code;
(2) Within the meaning and intendment of article 48, the crime of robbery accompanied by rape (par. 2 of article 294) never be complexed with the
offense of rape (article 335) any purpose whatsoever or in whatever situation;
(3) The penalty provided by par. 2 of article 294 for the offense of robbery accompanied by rape, which isreclusion temporal in its medium period
to reclusion perpetua, has been supplanted by necessary and unavoidable implication by the applicable penalties prescribed in article 335, as
amended by Republic Act 4111;
(4) Where the robbery is accompanied by simple rape, the penalty shall be reclusion perpetua; and
(5) Where the robbery is accompanied by qualified rape of any of the categories described in the last four paragraphs of article 335, the imposable
penalty shall be that prescribe by the applicable paragraph of the said article.
Makalintal, Actg. C.J., concurs.
G.R. No. L-26789 April 25, 1969
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
DICTO ARPA and MAALUM ARPA defendants-appellants.
Office of the Solicitor General Antonio P. Barredo, Assistant Solicitor General Felicisimo R. Rosete and Solicitor Antonio M. Martinez for plaintiff-
appellee.
Antonio L. Africa for defendants-appellants.
TEEHANKEE, J.:
Automatic review by this Court of the death penalty imposed by the trial court on the accused for the crime of Robbery with Triple Homicide.
In the information filed before the Court of First Instance of Davao, the accused, Dicto Arpa and Maalum Arpa, were charged with the crime of
Robbery with Triple Homicide (Criminal Case No. 9694); alleged to have been committed as follows:
That on or about February 20, 1966, in the City of Davao, Philippines, and within the jurisdiction of this Honorable Court, the above-
mentioned accused, having boarded a motor banca named "MAMI I", owned by Epimaco Mola together with other passengers bound for
Talicud Island, Davao, and once the motor banca was in the middle of the sea and when it developed engine trouble, the accused,
conspiring together and helping one another, with intent to steal the motor banca and by means of intimidation, the accused Dicto Arpa
firing his .22 cal. revolver to scare the passengers of the banca, and fired at one of the passengers, hitting the said passenger at the right
shoulder, wilfully, unlawfully and feloniously took and carried away the said motor banca "MAMI I" belonging to the said Epimaco Mola
valued at P2,100.00, to the damage and prejudice of the above-named owner in the aforementioned amount of P2,100.00, and as a result
of the jumping into the sea of all the passengers of the motor banca, Alfonso Villegas, Bernardo Villegas and Lourdes Villegas, all
passengers of the motor banca were drowned and died.
On the scheduled date of arraignment on March 7, 1966, the accused, through their counsel de oficio, Atty. Bernardino Bolcan Jr., manifested their
desire to plead guilty only as to the fact of "the killing of one of the persons mentioned in the information,"
1
denying the killing of the two other
persons. The fiscal, however, manifested that the State could not agree to the accused's offer to plead guilty to only one homicide, since "the two
other persons were lost on the same occasion, ... because of the incident. They jumped overboard after the firing at one of the victims, ..."
2
The trial
judge, Hon. Manases G. Reyes, accordingly did not accept the plea and reset the arraignment for the next day, informing the accused that as the
prosecution was not agreeable to their qualified plea, they would have to enter into trial.
When the case was called on the following day, the information was read to the accused in the dialect they understood, and both accused pleaded
guilty, their counsel de oficio invoking, in their favor two mitigating circumstances of plea of guilty and lack of intent to commit so grave a wrong. The
fiscal objected to the appreciation of the latter circumstance, demonstrating that "there could be no lack of intent when they immediately fired at one
of the victims point blank with a pistol, that is fatal."
3

The case was submitted and the trial court rendered thereafter on March 11, 19661, its decision, crediting the accused with the mitigating
circumstance of their voluntary plea of guilty, but rejecting the claimed mitigating circumstance of lack of intent to commit so grave a wrong, in view
of "the nature and gravity of the offense committed." The trial court further found two aggravating circumstances against the accused, as follows;
A perusal of the information reveals the following, allegation in the information:
...and once the motor banca was in the middle of the sea and when it developed engine trouble....
These allegations to the mind of the Court constitute two aggravating circumstances. The first underlined portion constitutes the
aggravating circumstance that the crime was committed in an uninhabited place. (People vs. Rubia 52 Phil. 172). And the second
constitutes the aggravating circumstance that the crime is committed on the occasion of conflagration, shipwreck, earthquake, epidemic or
other calamity or misfortune.
The Court believes that the development of engine trouble in the middle of the sea is a misfortune which tends to create confusion and
apprehensions of the passengers and, thereby, to commit a crime such a time the accused manifested greater perversity and instead of
rendering help increased their affliction by taking advantage of the said misfortune.
As it is, therefore, the accused in the commission of this crime has one mitigating circumstance in their favor and two aggravating
circumstances against them, and offsetting one another there is still remaining one aggravating circumstance to the accused.
4

Consequently, the trial court sentenced each of the accused to the penalty of death and order both of them, jointly and severally, to indemnify the
heirs of the deceased Alfonso Villegas, Bernardo Villegas and Lourdes Villegas in the amount of P6,000.00 for each of them, without subsidiary
imprisonment in case of insolvency by reason of the penalty imposed, and to indemnify Epimaco Mola in the sum of P2,100.00, and to pay the costs
proportionately.
For purposes of this review, Atty. Antonio L. Africa was appointed counsel de oficio for the accused, upon the latter's request for such counsel. Said
Counsel urges the reversal of the death sentence, and the Solicitor-General recommends the affirmance thereof. Counsel for the accused in a well-
prepared brief, assigns the following errors:
I. THE LOWER COURT ERRED IN HOLDING THAT THE CRIME COMMITTED IS ROBBERY WITH TRIPLE HOMICIDE.
II. THE LOWER COURT ERRED IN HOLDING THAT THE CRIME COMMITTED WAS ATTENDED BY THE AGGRAVATING
CIRCUMSTANCES OF UNINHABITED PLACE AND ON THE OCCASION OF A MISFORTUNE.
III. THE LOWER COURT ERRED IN NOT CONSIDERING THE MITIGATING CIRCUMSTANCE OF LACK OF INTENT TO COMMIT SO
GRAVE A WRONG AS THAT COMMITTED.
IV. THE LOWER COURT ERRED IN IMPOSING UPON THE ACCUSED THE SUPREME PENALTY OF DEATH.
The accused, leaving voluntarily pleaded guilty to the information, come under the firmly settled doctrine of being deemed to have admitted all the
material facts alleged in the information, including the aggravating circumstances therein alleged.
5

The first error assigned that "if the original criminal design does not clearly comprehend homicide, (in view of the allegations in the information that
the accused's intent was to steal the motor banca and that accused Dicto Arpa fired his 22 cal. revolver to scare the passengers of the banca), but
homicide follows the robbery as an incident of the latter, the criminal acts should be viewed as constitutive of two offenses, and not as a single
special offense (of robbery with homicide)"
6
is without merit. Article 294, paragraph 1 of the Revised Penal Code which defines the special, single
and indivisible crime of robbery with homicide with the use of violence against, or intimidation of any person, imposes one distinct penalty
of reclusion perpetua to death "when by reason or on occasion of the robbery, the crime of homicide shall have been committed." In the case
of People vs. Mangulabnan, et al.,
7
this Court pointed out that the "English version of the Code is a poor translation of the prevailing Spanish text of
sale paragraph, which reads as follows:lawphi1.nt
I. o Con la pena de reclusion perpetua a muerte cuando con motivo o' con occasion del robo resultare homicidio.
We see, therefore, that in order to determine the existence of the crime of robbery with homicide it is enough that a homicide would result
by reason or on the occasion of the robbery (Decision of the Supreme Court of Spain of November 26, 1892, and January 7, 1878, quoted
in 2 Hidalgo's Penal code, p. 267 and 259-260, respectively). This High Tribunal speaking of the accessory character of the circumstances
leading to the homicide, has also held that it is immaterial that the death would supervene by mere accident (Decision of September 9,
1886; October 22, 1907; April 30, 1910 and July 14, 1917), provided that the homicide be produced by reason or on occasion of the
robbery, inasmuch as it is only the result obtained, without reference or distinction as to the circumstances, causes, modes or persons
intervening in commission of the crime, that has to be taken into consideration (Decision of January 12, 1889 see Cuello Calon's Codigo
Penal p. 501-502).
In that case, one of the two unidentified co-participants of the appellant Mangulabnan climbed up a table and fired at the ceiling, which was
conceded to be "an unpremeditated act that surged on the spur of the moment and possibly without any idea that Vicente Pacson was hiding
therein" that resulted in the killing of said Vicente Pacson, but said appellant having been shown to have participated in the criminal design to commit
the robbery with his co-defendants was held guilty of the crime of robbery with homicide. Here, upon the accused carrying out their criminal design to
steal the motor banca, one of them, Dicto Arpa, started firing his revolver to scare the passengers and fired directly at one of the passengers, hitting
him at the right shoulder, and as a result, the three passengers jumped into the sea and met their death by drowning. Even if we were to concede
appellants' contention that their original criminal design did not clearly comprehend homicide, and that homicide followed the robbery "as an incident
of the latter", still the deaths clearly resulted by reason of or on the occasion of the robbery and the trial court therefore correctly found them guilty of
the crime of robbery with triple homicide.
The remaining errors assigned concern the trial court's appreciation and finding of two aggravating circumstances as against one mitigating
circumstance of a voluntary plea of guilty in the commission of the crime and the mandatory imposition, as a consequence, of the penalty of death.
We hold that the trial court correctly held that the crime committed was attended by the aggravating circumstance of uninhabited place. The accused,
in having boarded at Davao City the motor banca, together with other passengers bound for Talicud Island, Davao, and carrying out their criminal
design of stealing the said motor banca, once it was in the middle of the sea and when it developed engine trouble, with one of them firing revolver
shots in order to forestall any resistance, certainly cannot disclaim that they sought the isolation of the sea to attain their criminal objective without
interference. As held by this Court in People vs. Rubia,
8
the aggravating circumstance of the crime of homicide having been committed in an
uninhabited place must be considered, where the deed was committed at sea, where it was difficult for the offended party to receive any help, while
the assailants could easily have escaped punishment, and the purely accidental circumstance that another banca carrying the eyewitnesses to the
crime was also at sea in the vicinity at the time without the assailants' knowledge is no argument against the appreciation of said circumstance.
We hold, however, against the trial court's finding of a second aggravating circumstance in that the crime was committed "on the occasion of a
conflagration, shipwreck, earthquake, epidemic, or other calamity or misfortune."
9
In so holding, the trial Court reasoned:
The Court believes that the development of engine trouble in the middle of the sea is a misfortune which tends to create confusions and
apprehensions of the passengers and, thereby, to commit a crime at such a time the accused manifested greater perversity and instead of
rendering help increased their affliction by taking advantage of the said misfortune. (Decision, p. 3).
The development of engine trouble at sea is a misfortune, but it does not come within the context of the phrase "other calamity or misfortune" as
used in Article 14, paragraph 7 of the Revised Penal Code, which refer to other conditions of distress similar to those precedingly enumerated
therein, namely, "configuration, shipwreck, earthquake, epidemic", such as the chaotic conditions resulting from war or the liberation of the
Philippines during the last World War. The reason for the provision of this aggravating circumstance "is found in the debased form of criminality met
in one who, in the midst of a great calamity, instead of lending aid to the afflicted adds to their suffering by taking advantage of their misfortune to
despoil them."
10
Clearly, no such condition of great calamity or misfortune existed when the motor banca developed engine trouble.
It should be added that there is nothing in the record whatever to indicate that the engine trouble developed was a serious one such as to create
confusion and apprehension on the part of the passengers as perceived by the trial court, and that the same was not easily repaired; if at all, the
indications are to the contrary, for as alleged in the information, the accused succeeded in stealing the motor banca at sea.
We hold also against the accused's claim of a second mitigating circumstance of lack of intent to commit so grave a wrong. The trial court correctly
held that this circumstance could not properly be appreciated in favor of the accused "viewed from the nature and gravity of the offense committed."
As previously pointed out by this Court in the case of People vs. Boyles,
11
the true nature of this circumstance "addresses itself to the intention of the
offender at the particular moment when he executes or commits the criminal act; not to his intention during the planning stage. Therefore, when, as
in the case under review the original plan was only to rob, but which plan, on account of the resistance offered by the victim, was compounded into
the more serious crime of robbery with homicide, the plea of lack of intention to commit so grave a wrong cannot be rightly granted." In the present
case, the accused embarked on their most reprehensible criminal design of pirating a motor banca at sea, firing a volley of shots at the passengers
notwithstanding the lack of indications of any resistance, thus forcing them to jump overboard in a desperate act of self-preservation only to be
swallowed by the sea. The accused cannot now disclaim their lack of criminal intent and responsibility for the direct, logical and fearsome
consequences of their unlawful acts.
As thus established, therefore, the crime committed was Robbery with Triple Homicide, attended by the aggravating circumstance of the same
having been committed in an uninhabited place which is offset by the accused's voluntary plea of guilty, and the proper imposable penalty is the
lesser penalty of reclusion perpetua. (Article 294, paragraph 1 in relation to Article 3, Revised Penal Code.) The compensatory damages awarded to
the heirs of the victims should properly be increased to P12,000.00. (People vs. Pantoja, G.R. L-18793, Oct. 11, 1968.)
It may be noted that even if the accused were to be granted the additional claimed mitigating circumstance of lack of intent, the said imposable
penalty would still be the same.
12
The question of the fact of death of the two other passengers, since the accused deny knowledge of the fact of
their death, as their counsel in the lower court claimed that there was no showing of such fact,
13
although both counsels in this Court as well as in
the lower court do not dispute the "judicial admission by the accused appellants of the fact of killing (death) of one of the persons named in the
information"
14
would not affect the nature of the single and indivisible crime of Robbery with Homicide committed by the accused nor the proper
imposable penalty as herein established, since all the homicides perpetrated by reason or occasion of the robbery are merged in the composite,
integrated whole that constitutes the crime of robbery with homicide.
15

Nevertheless, we feel constrained to add that in reviewing the records of the case, we were struck with the paucity of facts and evidence attending
the commission of the crime other than those stated in the information and other circumstances that would aid the Court in its ordained task of
passing en consulta upon the legality and propriety of the death penalty imposed by the trial court, e.g. the age and education or lack thereof of the
accused, and whether there were other passengers who survived, aside from the three persons named in the information as having drowned, as well
as what the crew did, if anything, during the commission of the crime. Were it not for the conclusion here reached of imposing the lesser penalty
of reclusion perpetua, by virtue of our disallowance of the additional aggravating circumstance of calamity or misfortune found by the trial court, we
might have been constrained to remand the case for new trial to the court a quo in order to satisfy ourselves as to the degree of culpability of the
accused in relation to the death penalty imposed, especially since the information did not expressly designate as such the aggravating
circumstances found by the trial court and there was no discussion nor spelling out thereof whatever in the eight-page transcript of the entire
proceedings. We therefore reiterate the rule of practice recommended since the early cases of U.S. vs. Talbanos
16
and U.S. vs. Rota.
17
set out in
Rule 118 section 5 of the Rules of Court,
18
and thereafter suggested a number of cases, lastly, in the case of People vs. Bulalake,
19
where this
Court said:
It is of course true that the taking of such evidence is a matter left to the discretion of the trial court. Nevertheless, inasmuch as judgments
of conviction imposing the extreme penalty of death are subject to review by the Supreme Court as law and justice shall dictate, whether
the defendant appeals or not, which automatic review neither the Court nor the accused could waive or evade it would seem that the
proper and prudent course to follow where the accused enters a plea of 'guilty' to capital offenses specially where he is an ignorant person
with little or no education, is to take testimony not only to satisfy the trial judge himself but to aid the Supreme Court in determining whether
the accused really and truly understood and comprehended the meaning, full significance and consequences of his plea.
WHEREFORE, the decision under review is modified: the accused are imposed the penalty of reclusion perpetuaand ordered, jointly and severally,
to indemnify the heirs of the deceased Alfonso Villegas, Bernardo Villegas and Lourdes Villegas in the amount of P12,000.00 for each of them, and
Epimaco Mola in the sum of P2,100.00, and proportionately to pay the costs. SO ORDERED.