G.R. No.

103119 October 21, 1992

SULPICIO INTOD, petitioner,
vs.
HONORABLE COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.

CAMPOS, JR., J.:

Petitioner, Sulpicio Intod, filed this petition for review of the decision of the Court of Appeals 1 affirming in toto the

judgment of the Regional Trial Court, Branch XIV, Oroquieta City, finding him guilty of the crime of
attempted murder.
From the records, we gathered the following facts.
In the morning of February 4, 1979, Sulpicio Intod, Jorge Pangasian, Santos Tubio and Avelino Daligdig went to
Salvador Mandaya's house in Katugasan, Lopez Jaena, Misamis Occidental and asked him to go with them to the
house of Bernardina Palangpangan. Thereafter, Mandaya and Intod, Pangasian, Tubio and Daligdig had a meeting
with Aniceto Dumalagan. He told Mandaya that he wanted Palangpangan to be killed because of a land dispute
between them and that Mandaya should accompany the four (4) men, otherwise, he would also be killed.
At about 10:00 o'clock in the evening of the same day, Petitioner, Mandaya, Pangasian, Tubio and Daligdig, all armed
with firearms, arrived at Palangpangan's house in Katugasan, Lopez Jaena, Misamis Occidental. At the instance of
his companions, Mandaya pointed the location of Palangpangan's bedroom. Thereafter, Petitioner, Pangasian, Tubio
and Daligdig fired at said room. It turned out, however, that Palangpangan was in another City and her home was
then occupied by her son-in-law and his family. No one was in the room when the accused fired the shots. No one
was hit by the gun fire.
Petitioner and his companions were positively identified by witnesses. One witness testified that before the five men
left the premises, they shouted: "We will kill you (the witness) and especially Bernardina Palangpangan and we will
come back if (sic) you were not injured". 2
After trial, the Regional Trial Court convicted Intod of attempted murder. The court (RTC), as affirmed by the Court of
Appeals, holding that Petitioner was guilty of attempted murder. Petitioner seeks from this Court a modification of the
judgment by holding him liable only for an impossible crime, citing Article 4(2) of the Revised Penal Code which
provides:
Art. 4(2). CRIMINAL RESPONSIBILITY. Criminal Responsibility shall be incurred:
xxx xxx xxx
2. By any person performing an act which would be an offense against persons or property, were it
not for the inherent impossibility of its accomplishment or on account of the employment of
inadequate or ineffectual means.
Petitioner contends that, Palangpangan's absence from her room on the night he and his companions
riddled it with bullets made the crime inherently impossible.

On the other hand, Respondent People of the Philippines argues that the crime was not impossible. Instead, the facts
were sufficient to constitute an attempt and to convict Intod for attempted murder. Respondent alleged that there was
intent. Further, in its Comment to the Petition, respondent pointed out that:
. . . The crime of murder was not consummated, not because of the inherent impossibility of its
accomplishment (Art. 4(2), Revised Penal Code), but due to a cause or accident other than
petitioner's and his accused's own spontaneous desistance (Art. 3., Ibid.) Palangpangan did not
sleep at her house at that time. Had it not been for this fact, the crime is possible, not impossible. 3
Article 4, paragraph 2 is an innovation 4 of the Revised Penal Code. This seeks to remedy the void in the Old

Penal Code where:

. . . it was necessary that the execution of the act has been commenced, that the person conceiving
the idea should have set about doing the deed, employing appropriate means in order that his
intent might become a reality, and finally, that the result or end contemplated shall have been
physically possible. So long as these conditions were not present, the law and the courts did not
hold him criminally liable. 5
This legal doctrine left social interests entirely unprotected. 6 The Revised Penal Code, inspired by the Positivist

School, recognizes in the offender his formidability, 7 and now penalizes an act which were it not aimed at
something quite impossible or carried out with means which prove inadequate, would constitute a felony
against person or against property. 8 The rationale of Article 4(2) is to punish such criminal tendencies. 9
Under this article, the act performed by the offender cannot produce an offense against person or property because:
(1) the commission of the offense is inherently impossible of accomplishment: or (2) the means employed is either (a)
inadequate or (b) ineffectual. 10
That the offense cannot be produced because the commission of the offense is inherently impossible of
accomplishment is the focus of this petition. To be impossible under this clause, the act intended by the offender must
be by its nature one impossible of accomplishment. 11 There must be either impossibility of accomplishing the

intended act 12 in order to qualify the act an impossible crime.

Legal impossibility occurs where the intended acts, even if completed, would not amount to a crime. 13 Thus:
Legal impossibility would apply to those circumstances where (1) the motive, desire and
expectation is to perform an act in violation of the law; (2) there is intention to perform the physical
act; (3) there is a performance of the intended physical act; and (4) the consequence resulting from
the intended act does not amount to a crime. 14
The impossibility of killing a person already dead 15 falls in this category.
On the other hand, factual impossibility occurs when extraneous circumstances unknown to the actor or beyond his
control prevent the consummation of the intended crime. 16 One example is the man who puts his hand in the

coat pocket of another with the intention to steal the latter's wallet and finds the pocket empty.

17

The case at bar belongs to this category. Petitioner shoots the place where he thought his victim would be, although
in reality, the victim was not present in said place and thus, the petitioner failed to accomplish his end.
One American case had facts almost exactly the same as this one. In People vs. Lee Kong, 18 the accused, with

intent to kill, aimed and fired at the spot where he thought the police officer would be. It turned out,

however, that the latter was in a different place. The accused failed to hit him and to achieve his intent.
The Court convicted the accused of an attempt to kill. It held that:
The fact that the officer was not at the spot where the attacking party imagined where he was, and
where the bullet pierced the roof, renders it no less an attempt to kill. It is well settled principle of
criminal law in this country that where the criminal result of an attempt is not accomplished simply
because of an obstruction in the way of the thing to be operated upon, and these facts are
unknown to the aggressor at the time, the criminal attempt is committed.
In the case of Strokes vs. State, 19 where the accused failed to accomplish his intent to kill the victim because

the latter did not pass by the place where he was lying-in wait, the court held him liable for attempted
murder. The court explained that:
It was no fault of Strokes that the crime was not committed. . . . It only became impossible by
reason of the extraneous circumstance that Lane did not go that way; and further, that he was
arrested and prevented from committing the murder. This rule of the law has application only where
it is inherently impossible to commit the crime. It has no application to a case where it becomes
impossible for the crime to be committed, either by outside interference or because of
miscalculation as to a supposed opportunity to commit the crime which fails to materialize; in short
it has no application to the case when the impossibility grows out of extraneous acts not within the
control of the party.
In the case of Clark vs. State, 20 the court held defendant liable for attempted robbery even if there was

nothing to rob. In disposing of the case, the court quoted Mr. Justice Bishop, to wit:
It being an accepted truth that defendant deserves punishment by reason of his criminal intent, no
one can seriously doubt that the protection of the public requires the punishment to be
administered, equally whether in the unseen depths of the pocket, etc., what was supposed to exist
was really present or not. The community suffers from the mere alarm of crime. Again: Where the
thing intended (attempted) as a crime and what is done is a sort to create alarm, in other words,
excite apprehension that the evil; intention will be carried out, the incipient act which the law of
attempt takes cognizance of is in reason committed.
In State vs. Mitchell, 21 defendant, with intent to kill, fired at the window of victim's room thinking that the

latter was inside. However, at that moment, the victim was in another part of the house. The court
convicted the accused of attempted murder.
The aforecited cases are the same cases which have been relied upon by Respondent to make this Court sustain the
judgment of attempted murder against Petitioner. However, we cannot rely upon these decisions to resolve the issue
at hand. There is a difference between the Philippine and the American laws regarding the concept and appreciation
of impossible crimes.
In the Philippines, the Revised Penal Code, in Article 4(2), expressly provided for impossible crimes and made the
punishable. Whereas, in the United States, the Code of Crimes and Criminal Procedure is silent regarding this matter.
What it provided for were attempts of the crimes enumerated in the said Code. Furthermore, in said jurisdiction, the
impossibility of committing the offense is merely a defense to an attempt charge. In this regard, commentators and
the cases generally divide the impossibility defense into two categories: legal versus factual impossibility. 22 In U.S.

vs. Wilson 23 the Court held that:

. . . factual impossibility of the commission of the crime is not a defense. If the crime could have
been committed had the circumstances been as the defendant believed them to be, it is no defense
that in reality the crime was impossible of commission.
Legal impossibility, on the other hand, is a defense which can be invoked to avoid criminal liability for an attempt.
In U.S. vs. Berrigan, 24 the accused was indicated for attempting to smuggle letters into and out of prison.

The law governing the matter made the act criminal if done without knowledge and consent of the
warden. In this case, the offender intended to send a letter without the latter's knowledge and consent and
the act was performed. However, unknown to him, the transmittal was achieved with the warden's
knowledge and consent. The lower court held the accused liable for attempt but the appellate court
reversed. It held unacceptable the contention of the state that "elimination of impossibility as a defense to
a charge of criminal attempt, as suggested by the Model Penal Code and the proposed federal legislation,
is consistent with the overwhelming modern view". In disposing of this contention, the Court held that the
federal statutes did not contain such provision, and thus, following the principle of legality, no person
could be criminally liable for an act which was not made criminal by law. Further, it said:
Congress has not yet enacted a law that provides that intent plus act plus conduct constitutes the
offense of attempt irrespective of legal impossibility until such time as such legislative changes in
the law take place, this court will not fashion a new non-statutory law of criminal attempt.
To restate, in the United States, where the offense sought to be committed is factually impossible or accomplishment,
the offender cannot escape criminal liability. He can be convicted of an attempt to commit the substantive crime
where the elements of attempt are satisfied. It appears, therefore, that the act is penalized, not as an impossible
crime, but as an attempt to commit a crime. On the other hand, where the offense is legally impossible of
accomplishment, the actor cannot be held liable for any crime neither for an attempt not for an impossible crime.
The only reason for this is that in American law, there is no such thing as an impossible crime. Instead, it only
recognizes impossibility as a defense to a crime charge that is, attempt.
This is not true in the Philippines. In our jurisdiction, impossible crimes are recognized. The impossibility of
accomplishing the criminal intent is not merely a defense, but an act penalized by itself. Furthermore, the phrase
"inherent impossibility" that is found in Article 4(2) of the Revised Penal Code makes no distinction between factual or
physical impossibility and legal impossibility. Ubi lex non distinguit nec nos distinguere debemos.
The factual situation in the case at bar present a physical impossibility which rendered the intended crime impossible
of accomplishment. And under Article 4, paragraph 2 of the Revised Penal Code, such is sufficient to make the act an
impossible crime.
To uphold the contention of respondent that the offense was Attempted Murder because the absence of
Palangpangan was a supervening cause independent of the actor's will, will render useless the provision in Article 4,
which makes a person criminally liable for an act "which would be an offense against persons or property, were it not
for the inherent impossibility of its accomplishment . . ." In that case all circumstances which prevented the
consummation of the offense will be treated as an accident independent of the actor's will which is an element of
attempted and frustrated felonies.
WHEREFORE, PREMISES CONSIDERED. the petition is hereby GRANTED, the decision of respondent Court of
Appeals holding Petitioner guilty of Attempted Murder is hereby MODIFIED. We hereby hold Petitioner guilty of an
impossible crime as defined and penalized in Articles 4, paragraph 2, and 59 of the Revised Penal Code,
respectively. Having in mind the social danger and degree of criminality shown by Petitioner, this Court sentences him
to suffer the penalty of six (6) months ofarresto mayor, together with the accessory penalties provided by the law, and
to pay the costs.
SO ORDERED.

Feliciano, Regalado and Nocon, JJ., concur.

Narvasa, C.J., is on leave.

http://www.lawphil.net/judjuris/juri1992/oct1992/gr_103119_1992.html

G.R. No. L-48010 July 31, 1986

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
SANCHO BUDOL y AYENTE and WILFREDO LLAGUNO y BARDIAGO, defendants-appellants.

MELENCIO-HERRERA, J.:
An appeal from the Decision of the then Court of First Instance of Pangasinan, Branch I, in Criminal
Case No. L-1520-I, convicting accused Sancho BUDOL y Ayente, as principal, and Wilfredo Llaguno
y Bardiago, as accomplice, of the crane of Rape, BUDOL was sentenced to reclusion perpetua and
Llaguno to an indeterminate prison term.
The prosecution version of the facts follow:
Complainant Lyneath Poquiz was then a sixteen-year old student at the Mangatarem
Catholic School. At about 6:00 o'clock in the afternoon of September 25, 1977
(Sunday), she was on her way home riding a bicycle along Gen. Luna Street at the
Poblacion of Mangatarem, Pangasinan. As she passed in front of the Mangatarem
Elementary School she was called by accused Sancho A. Budol who was then inside
the school ground together with his co-accused Wilfredo B. Llaguno (pp. 2-3, 5, 43,
tsn. Dec. 13, 1977; pp. 21-22, tsn. Feb. 6, 1978).
Responding, Lyneath went inside the school ground by passing through the main
gate and asked Budol what he wanted. The latter told her that he wanted to ten her
something which was a secret. But when Lyneath asked him ( Budol) what it was, the
latter pulled her towards the back of the school building. At first Lyneath refused to go

with Budol but Llaguno pushed her and convinced her to go with Budol because the
latter was going to ten her something (pp. 4-6, tsn., Dec. 13, 1977).
Upon reaching the back of the school building, both Budol and Llaguno forcibly
pulled Lyneath towards the Boy's toilet nearby. The latter resisted and shouted for
help, but no one must have heard her shouts as nobody came to her rescue. Once
the two succeeded in pulling Lyneath inside the toilet, Budol embraced, kissed and
mashed her (Lyneath) breasts. And when the latter refused, Budol slapped and
choked her. Then, Llaguno held her two hands while Budol forcibly pulled down her
blouse (Exhibit 'F') and short pants (Exhibit 'G'), causing her blouse to be torn in front
and her short pants to be torn on the left side of the hip. Budol then removed his
pants, forced Lyneath to lie down and placed himself on top of her. Lyneath resisted
Budol's advances and struggled to free herself but to no avail, as Budol boxed her on
the stomach until he (Budol) overpowered her (Lyneath). Thus Budol succeeded
forcibly in having sexual intercourse with Lyneath while Llaguno stood guard at the
door of the toilet (pp. 6-11, tsn., Dec. 13, 1977).
Thereafter, Budol forced Lyneath to sit on his lap but the latter refused to do so. And,
when Lyneath succeeded in her resistance not to have another sexual intercourse
with him, Budol held her (Lyneath) neck and brought her to the school canteen where
he (Budol) again kissed her and mashed her breasts. From there, Budol again
forcibly pulled Lyneath to the Girl's Toilet not far from the Boy's Toilet where Budol
first brought Lyneath; while Llaguno who must have realized the gravity of what they
were doing, left. At the Girl's Toilet, Budol boxed Lyneath on the stomach when the
latter refused to cooperate with him and warned her not to report to the police
authorities. Again he (Budol) started to forcibly kiss and mash her breasts, and also
inserted his fingers into her vagina (pp. 11, 2022, tsn., Dec. 13, 1977).
Meanwhile, when Lyneath's mother went home about 8:00 o'clock that evening, she
got worried to find her daughter not yet home. She looked for her in the
neighborhood but failed to find her. However, somebody informed her that he saw
her (Lyneath) bicyle parked near the main gate of the Mangatarem Elementary
School. Thereupon, she (Lyneath's mother) and councilwoman Aida Costales
searched for Lyneath at the rooms of the Mangatarem Elementary School but found
no trace of her. They were on their way home empty "mided when they met Lyneath's
father who joined the search for Lyneath. Armed with a flashlight, Lyneath's parents
went back to the school ground and searched the school rooms. Still they failed to
locate Lyneath. As a last resort, however, they decided to inspect the toilets at the
back of the school building. And, just as Lyneath's father beamed his flashlight inside
the girl's toilet, he saw Budol forcibly kissing her daughter. Immediately, Budol
slapped the hand of Lyneath's father which was holding the flashlight; and thereupon,
started to run. But the latter chased him (Budol); and upon overtaking, boxed Budol
causing him (Budol) to fan to the ground unconscious (pp. 23-28, tsn., Jan. 9, 1978;
pp. 18-23, tsn., Jan. 10, 1978).

Upon seeing her mother outside, Lyneath rushed toward her and embraced her
crying. Whereupon, Lyneath and her mother ran to the Municipal Building nearby and
called for a policeman, who immediately responded by rushing to the scene of the
incident. Budol was still lying when the policeman arrived. He (Budol) was then
brought to the Municipal building followed by Lyneath and her parents. Upon advice
of the police, Lyneath's parents brought her to the Municipal Health Officer of
Mangatarem for medical examination. Lyneath was scared and crying with her dress
torn in front and along its fine when she appeared before Dr. Cecillo Guico, the
Municipal Health Officer. Upon physical examination, Dr. Guico found contusion on
the medial third of Lyneath's right upper hand. No vaginal examination, however,
could be conducted because Dr. Guico's clinic was not equipped for that purpose.
So, he (Dr. Guico) advise them to go to the Provincial Hospital of Pangasinan at
Dagupan City for further examination (pp. 35-36, tsn., Jan. 9, 1978; pp. 3-7, tsn., Jan.
10, 1978; pp. 8-11, 14-16, tsn., Dec. 6, 1977).
That same evening, Lyneath and her parents proceeded to the Pangasinan
Provincial Hospital at Dagupan City, arriving there at about 10:00 P.M. She (Lyneath)
was examined by Dr. Ellen Aldana (pp. 29-31), tsn., Dec. 13, 1977), who issued a
Medico-Legal Certificate (Exhibit 'A') wherein she stated her findings, as follows:
-LMP-September 3rd week, 1977 (5 days)
-Menses are regular.
-Patient is conscious, coherent and ambulatory
-P.E. Extremeties-contusion, medial 3rd, medial aspect upper arm, right.
-Breast and abdomen no evidence of external physical injury.
-IE-Abrasion, lower portion, labia minora, left; erythema, lower portion labia minora,
right, hymen fresh laceration at 7:00 o'clock. Vagina admits 2 fingers with difficulty,
Cervix-small; Adnexea-free, uterus-small.
-Vaginal smear for spermatozoa-negative 1
A criminal complaint for Rape was instituted with the Municipal Court of Mangatarem against the two
accused In due course, the corresponding Information was filed with the Court of First Instance of
Pangasinan, Branch 1, Lingayen, Pangasinan. Upon arraignment, both accused pleaded not guilty
and trial ensued.
Accused BUDOL put up the defense that he and LYNEATH, the offended party, were sweethearts
since May, 1977, and, therefore, he could not have committed the crime imputed to him. To support
this contention, he presented love letters (Exhibits "2" & "3"), a birthday card (Exhibit "4"), and a 1 x
4 photo of LYNEATH (Exhibit "5"), an allegedly sent to him by the latter in May and June 1977, or

prior to the incident. He further explained that although he and LYNEATH were lovers, he did not
enjoy her parents' approval because of the difference in their economic and social status.
Rene Quiambao, a ten-year-old witness and BUDOL's neighbor, testified that he saw LYNEATH go
to BUDOL's house five times on different days in May 1977; and that he saw a mail carrier deliver a
letter from LYNEATH at BUDOL's house
Marilou Cascano, 15, LYNEATH's classmate testified that the latter was BUDOL's girlfriend; that she
had a crush on BUDOL, and that there was an occasion when she saw BUDOL and LYNEATH near
the gate of the school campus.
Co-accused LLAGUNO, 17, a fourth-year high school student declared that in the afternoon of
February 25, 1977, he and BUDOL met at the public market of Mangatarem, Pangasinan; that they
drank four bottles of beer each; that on their way home in front of the elementary school, LYNEATH
called BUDOL at about 5:00 P.M., after which the latter told him to go home, which he did. He denied
that he and BUDOL had dragged LYNEATH inside the toilet of the school and that BUDOL had
abused LYNEATH.
On February 28, 1978, the Trial Court convicted both accused thus:
WHEREFORE, the Court finds the accused Sancho Budol y Ayente, GUILTY beyond
reasonable doubt of the crime of consummated rape, aggravated by night time and
isolated place, and pursuant to Art. 335 of the Revised Penal Code, as amended,
hereby sentences him to suffer the penalty of reclusion perpetual or imprisonment for
a period of Thirty (30) Years, to indemnify the aggrieved party, Lyneath Poquiz, in the
amount of P12,000.00, without subsidiary imprisonment in case of insolvency, and to
pay one-half (1/2) of the costs, less the preventive period of his imprisonment.
On the other hand, the Court finds the accused Wilfredo Llaguno y Bardiago,
GUILTY beyond reasonable doubt as accomplice of the crime of consummated rape,
and pursuant to law, the penalty imposable on him should be an indeterminate prison
term of from Twelve (12) Years of prision mayormaximum, as minimum, to Twenty
(20) Years of reclusion temporal maximum, as maximum to indemnify the aggrieved
party, Lyneath Poquiz, in the amount of P6,000.00, without subsidary imprisonment
in case of insolvency, and to pay one half (1/2) of the costs, less the preventive
period of his imprisonment. However, due to his minority, as he is only 17 years old,
the Court, pursuant to Sec. 192, P.D. 603, suspends his sentence and orders his
commitment to the National Training School for Boys, at Sampaloc, Tanay, Rizal, until
he reaches the age of 21, or for a shorter period as the Court deems it proper,
depending on his conduct and behavior in said institution, which is ordered to submit
to the Court once every 3 months a report regarding the conduct of said accused.
Accused Llaguno is, however, warned that should he misbehave and violate the
regulations of said institution, the Court will immediately order his commitment to the
National Penitentiary, at Muntinlupa, Rizal.

The accused Sancho Budol is ordered committed to the National Penitentiary, at

Muntinlupa, Rizal upon finality of this decision, in view of the nature of his penalty.
In this appeal, the accused raises the following Assignments of Error:
I
The Trial Court erred in giving merit to the claim of the prosecution that the alleged
offended victim Lyneath Poquiz was forcibly raped by the accused-appellant Sancho
Budol .
II
The Trial Court erred in not considering that the facts and circumstances presented
as evidence by the prosecution militates against forcible rape.
III
The Trial Court erred in not considering the fact that the place where the alleged rape
was committed makes the commission of the alleged crime highly improbable.
IV
The Trial Court erred in not believing that the accused appellant Sancho Budol was
invited by the offended party inside the premises of the Mangatarem Elementary
School in the afternoon of September 25, 1977 and all her acts thereat were
motivated by love and therefore voluntary.
V
The Trial Court erred in disregarding the proof of love relationship between appellant
and the alleged offended victim which are the love letters (Exhibits '2' and '3'), a
birthday card (Exhibit '4') all indisputably sent through mail by Lyneath Poquiz to
appellant Sancho Budol as well as the picture of the offended girl (Exhibit '5') given
personally to the said accused-appellant.
VI
The Trial Court erred in not believing the testimony of the appellant Sancho Budol
and Rene Quiambao, Jr., a 10-year old boy, who declared that the offended victim
Lyneath Poquiz used to see accused-appellant Sancho Budol in his house prior to
September 25, 1977, as well as in disbelieving the testimony of Marilou Cascano, a
classmate of Lyneath Poquiz, that the accused-appellant Sancho Budol and the
complainant Lyneath Poquiz were sweethearts.
VII

The Trial Court erred in giving merit to the testimony of the offended victim which
lacks candor and credibility and highly improbable, and in not considering her
testimony was due to pressure imposed by the parents of the alleged offended girl
who have moral ascendancy over their daughter who blindly obeyed them to falsify
charge and concoct stories against the accused-appellants Sancho Budol and
Wilfredo Llaguno.
VII
The Trial Court erred in not acquitting the accused- appellants at least on the ground
of reasonable doubt.
On December 16,1978, accused Llaguno moved to withdraw his appeal with the conformity of his
father. 2 This was granted by the Court, and entry of final judgment was made as to him. 3
We shall discuss the errors together as they all hinge on the issue of credibility of witnesses.
That Lyneath had sexual intercourse is proven by the physical examination findings as reflected in
the Medico-Legal Certificate issued by the examining physician. As to whether the same was with
LYNEATH's consent or not is the issue for resolution.
BUDOL denied that he had forcibly brought LYNEATH to the boys' toilet at Mangatarem Elementary
School and raped her. He claimed that it was she who had invited him to go inside the school
premises; that he kissed, fondled and fingered her with her consent as they were sweethearts; that
he did not have carnal knowledge of her because he had not really intended to, and besides, the
place was wet and foul smelling. LYNEATH stoutly contended the contrary in her direct and rebuttal
testimony.
With two diametrically opposing versions, a question of credence arises as to which of the conflicting
versions is true. In such a situation, the Trial Court's findings are generally viewed as correct and
entitled to highest respect,4 for it had the opportunity to see, hear and observe the witnesses testify and to weigh their
testimonies. 5 In this case, the Trial Court found for the prosecution and after a review of the evidence, particularly, the points stressed by
BUDOL, we find no reason to depart from the general rule.

When a victim says that she has been raped, she says in effect all that is necessary to show that
rape has been committed, and if her testimony meets the test of credibility, the accused may be
convicted on the basis thereof. 6
BUDOL maintains that if LYNEATH had, in fact, been dragged from the gate of the Mangatarem
Elementary School which is near the municipal building, her shouts for help would have been heard.
It should be noted, however, that the incident happened on a Sunday, when the school was
deserted, and at about 6:00 P.M., when dusk was setting in. It is not improbable then that
LYNEATH's outcries for help could not have been heard by anyone.
The fact that no spermatozoa was found in LYNEATH's private part does not disprove
consummation of rape, the important consideration being penetration. not emission. 7 The slightest
penetration even without emission is sufficient to consummate the crime. 8 For that matter, penetration by entry on lips of the female organ

even without rupture of the hymen suffices to warrant conviction for rape. 9The important consideration is that internal examination conducted
on LYNEATH showed fresh laceration on her hymen which could only have been due to forcible sexual intercourse.

BUDOL's additional contention that the absence of injury on other parts of LYNEATH's body, except
for the contusion, medial third, medial aspect of her right upper arm, negatives rape, is untenable. 10 It
will be recalled that LYNEATH declared that Sancho boxed her on her stomach. That statement is credible even if no external injury was
visible for, as the physician who examined LYNEATH testified, underneath the female stomach are soft tissues which, when punched, may
not show external signs of injury. 11 Besides, to consider the existence of the crime, it is only necessary that the force used by the guilty party
be sufficient to consummate his purpose.

12

BUDOL also impugns the fact that LYNEATH's dress and shorts were not surrendered and kept by
the proper authorities immediately after the incident, but were kept by her parents and introduced
and presented only during the trial of the case. That was so because, as LYNEATH's mother
explained, she had presented the clothes to the authorities, but was instructed to keep them until
their presentation was required by the Court. Anyhow, those clothes are not essential 13 and need not be
presented, 14 as they are not indispensable evidence to prove rape.

15

Next, the defense contends that the lower court erroneously disregarded proofs of a love relationship
between BUDOL and LYNEATH, as shown by the love letters (Exhibits "2" and "3"), a birthday card
(Exhibit "4"), all alledge sent by LYNEATH to BUDOL by mail and a photograph allegedly given
personally by LYNEATH to him. The Court notes, however, that LYNEATH's purported signatures on
the two love letters differ from each other, and that the dedication behind the photograph is a piece
of superimposed pad paper signed "Neneng" which, according to LYNEATH is not even her
nickname. LYNEATH emphatically denied that the signatures appearing on the letters, card and
picture were hers, and the defense failed to disprove it.
As to Rene Quiambao's story that he, used to see LYNEATH go to BUDOL's house, LYNEATH
countered by saying that she does not even know where BUDOL's house is. She disputed, too,
Marilou Cascanio's testimony that she had a crush on BUDOL stating that the same was absolutely
false as she had never talked to Marilou about BUDOL.
But even assuming that the two were sweethearts, this does not prove that the sexual congress was
with LYNEATH's consent. The situs of the incident already negates the alleged voluntary submission
of LYNEATH to BUDOL. The parties could have chosen a more suitable rendezvous than the foul
smelling rest room had the incident been with mutual consent. Moreover, LYNEATH's conduct and
physical appearance right after the occurrence of the event negates consent and indicates the
truthfulness of her claim. She and her parents immediately reported the incident to the authorities as
soon as her parents had rescued her from BUDOL. The Municipal Health Officer of Mangatarem
who first examined LYNEATH on the night of the incident, declared that she was scared and crying,
and her dress was torn in front and at the waistline when she was brought to him. 16
Significantly, too, the withdrawal of the appeal by Wilfredo Llaguno, BUDOL's co-accused, shows
acquiescence to the judgment of conviction and an affirmation of the fact of rape. 17
The finding of the Trial Court that the crime was aggravated by nighttime and isolated place is
reversible error. Although this was not raised as an issue on appeal, and although the presence or
absence of an aggravating circumstance is of no importance when the indivisible penalty
of reclusion perpetua is imposed, 18 this Court deems it proper to Correct the erroneous finding.

There is no showing that nocturnity was especially sought by BUDOL, or that he had taken
advantage of the same to facilitate the commission of the crime, or for the purpose of impunity. 19 If
ever, nocturnity was merely an accidental circumstance in this case. It was alleged that the crime was committed at about 6:00 o'clock P.M.
on September 25, 1977. In the case of People vs. Manzano, supra, this Court held that rape committed at 6:00 o'clock P.M. does not involve
the aggravating circumstance of nocturnity as dusk is just beginning.

Neither can the aggravating circumstance of isolated or uninhabited place be appreciated. An

uninhabited place is one where there are no houses at all, is at a considerable distance from town,
or where the houses are scattered at a great distance from each other. 20 And in order that it may be
aggravating, there must be proof that it facilitated the commission of the offense.
circumstance of uninhabited place may not be considered in this case.

21

Under the foregoing criteria, the aggravating

The penalty imposed by the Trial Court is correct. Simple rape is punishable by reclusion perpetua. 22
WHEREFORE, except as to the amount of indemnity to be paid to the offended party which is
hereby raised to P20,000.00, the appealed judgment, with the deletion of the finding of aggravating
circumstance of nocturnity and uninhabited place, is hereby affirmed in all other respects.
SO ORDERED.
Yap, Narvasa, Cruz and Paras, JJ., concur.

http://www.lawphil.net/judjuris/juri1986/jul1986/gr_48010_1986.html

G.R. No. 86163 April 26, 1990

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
BIENVENIDO SALVILLA, REYNALDO CANASARES, RONALDO CANASARES, and SIMPLICIO
CANASARES, BIENVENIDO SALVILLA, defendant-appellant.
The Solicitor General for plaintiff-appellee.
Resurreccion S. Salvilla for defendant-appellant.

MELENCIO-HERRERA, J.:
Accused Bienvenido Salvilla alone appeals from the Decision of the Regional Trial Court, Branch 28,
Iloilo City, *dated 29 August 1988, in Criminal Case No. 20092, finding him and his co-accused Reynaldo, Ronaldo and Simplicio, all
surnamed Canasares, guilty beyond reasonable doubt of the crime of "Robbery with Serious Physical Injuries and Serious Illegal Detention"
and sentencing them to suffer the penalty of reclusion perpetua.

The Information filed against them reads:

The undersigned City Fiscal accuses BIENVENIDO SALVILLA, REYNALDO
CANASARES, RONALDO CANASARES, and SIMPLICIO CANASARES, whose
maternal surnames, dated and places of birth cannot be ascertained of the crime of
ROBBERY WITH SERIOUS PHYSICAL INJURIES AND SERIOUS ILLEGAL
DETENTION (Art, 294, paragraph 3, in conjunction with Article 267 of the Revised
Penal Code), committed as follows:
That on or about the 12th day of April, 1986, in the City of Iloilo, Philippines and
within the jurisdiction of this Court, said accused, conspiring and confederating
among themselves, working together and helping one another, armed with guns and
handgrenade and with the use of violence or intimidation employed on the person of
Severino Choco, Mary Choco, Mimie Choco and Rodita Hablero did then and there
wilfully, unlawfully and criminally take and carry away, with intent of gain, cash in the
amount of P20,000.00, two (2) Men's wrist watches, one (1) Lady's Seiko quartz wrist
watch and one (1) Lady's Citizen wrist watch and assorted jewelries, all valued at
P50,000.00; that on the occasion and by reason of said robbery, Mary Choco
suffered serious physical injuries under paragraph 2 of Article 263, Bienvenido
Salvilla likewise suffered serious physical injuries and Reynaldo Canasares also
suffered physical injuries; that the said accused also illegally detained, at the
compound of the New Iloilo Lumber Company, Iznart Street, Iloilo City, Severino
Choco, owner/proprietor of said Lumber Company, Mary Choco, Mimie Choco, who

is a minor, being 15 years of age, and Rodita Hablero, who is a salesgirl at said
Company; that likewise on the occasion of the robbery, the accused also asked and
were given a ransom money of P50,000.00; that the said crime was attended by
aggravating circumstances of band, and illegal possession of firearms and
explosives; that the amount of P20,000.00, the ransom money of P50,000.00, two (2)
Men's wrist watches, two (2) lady's wrist watches, one (1) .38 caliber revolver and
one (1) live grenade were recovered from the accused; to the damage and prejudice
of the New Iloilo Lumber Company in the amount of P120,000.00.
The evidence for the prosecution may be re-stated as follows:
On 12 April 1986, a robbery was staged by the four accused at the New Iloilo Lumber Yard at about
noon time. The plan was hatched about two days before. The accused were armed with homemade
guns and a hand grenade. When they entered the establishment, they met Rodita Hablero an
employee thereat who was on her way out for her meal break and announced to her that it was a
hold-up. She was made to go back to the office and there Appellant Salvilla pointed his gun at the
owner, Severino Choco, and his two daughters, Mary and Mimie the latter being a minor 15 years of
age, and told the former that all they needed was money. Hearing this, Severino told his daughter,
Mary, to get a paper bag wherein he placed P20,000.00 cash (P5,000.00, according to the defense)
and handed it to Appellant. Thereafter, Severino pleaded with the four accused to leave the premises
as they already had the money but they paid no heed. Instead, accused Simplicio Canasares took
the wallet and wristwatch of Severino after which the latter, his two daughters, and Rodita, were
herded to the office and kept there as hostages.
At about 2:00 o'clock of the same day, the hostages were allowed to eat. The four accused also took
turns eating while the others stood guard. Then, Appellant told Severino to produce P100,000.00 so
he and the other hostages could be released. Severino answered that he could not do so because it
was a Saturday and the banks were closed.
In the meantime, police and military authorities had surrounded the premises of the lumber yard.
Major Melquiades B. Sequio Station Commander of the INP of Iloilo City, negotiated with the
accused using a loud speaker and appealed to them to surrender with the assurance that no harm
would befall them as he would accompany them personally to the police station. The accused
refused to surrender or to release the hostages.
Thereafter, OIC Mayor, Rosa Caram, of Iloilo City arrived and joined the negotiations. In her dialogue
with the accused, which lasted for about four hours, Appellant demanded P100,000.00, a coaster,
and some raincoats. She offered them P50,000.00 instead, explaining the difficulty of raising more
as it was a Saturday. Later, the accused agreed to receive the same and to release Rodita to be
accompanied by Mary Choco in going out of the office. When they were out of the door, one of the
accused whose face was covered by a handkerchief, gave a key to Mayor Caram. With this, Mayor
Caram unlocked the padlocked door and handed to Rodita the P50,000.00, which the latter, in turn,
gave to one of the accused. Rodita was later set free but Mary was herded back to the office.
Mayor Caram, Major Sequio and even volunteer radio newscasters continued to appeal to the
accused to surrender peacefully but they refused. UItimatums were given but the accused did not

budge. Finally, the police and military authorities decided to launch an offensive and assault the
place. This resulted in injuries to the girls, Mimie and Mary Choco as well as to the accused Ronaldo
and Reynaldo Canasares. Mary suffered a "macerated right lower extremity just below the knee" so
that her right leg had to be amputated. The medical certificate described her condition as "in a state
of hemorrhagic shock when she was brought in to the hospital and had to undergo several major
operations during the course of her confinement from April 13, 1986 to May 30, 1986."
For his part, Appellant Salvilla confirmed that at about noon time of 12 April 1986 he and his coaccused entered the lumber yard and demanded money from the owner Severino Choco He
demanded P100,000.00 but was given only P5,000.00, which he placed on the counter of the office
of the lumber yard. He admitted that he and his co-accused kept Severino, his daughters, and
Rodita inside the office. He maintained, however, that he stopped his co-accused from getting the
wallet and wristwatch of Severino and, like the P5,000.00 were all left on the counter, and were
never touched by them. He claimed further that they had never fired on the military because they
intended to surrender. Appellant's version also was that during the gunfire, Severino's daughter
stood up and went outside; he wanted to stop her but he himself was hit by a bullet and could not
prevent her. Appellant also admitted the appeals directed to them to surrender but that they gave
themselves up only much later.
After trial, the Court a quo meted out a judgment of conviction and sentenced each of the accused
"to suffer the penalty of reclusion perpetua, with the accessory penalties provided by law and to pay
the costs."
Appellant Salvilla's present appeal is predicated on the following Assignments of Error:
1. The lower court erred in holding that the crime charged was consummated and in
not holding that the same was merely attempted.
2. The lower court erred in not appreciating the mitigating circumstance of voluntary
surrender."
Upon the facts and the evidence, we affirm.
The defense contends that "The complete crime of larceny (theft/robbery) as distinguished from an
attempt requires asportation or carrying away, in addition to the taking, In other words, the crime of
robbery/theft has three consecutive stages: 1) the giving 2) the taking and 3) the carrying away or
asportation And without asportation the crime committed is only attempted" (Memorandum for
Appellant Salvilla, Records, p. 317).
There is no question that in robbery, it is required that there be a taking of personal property
belonging to another. This is known as the element of asportation the essence of which is the taking
of a thing out of the possession of the owner without his privity and consent and without the animus
revertendi (Aquino, Revised Penal Code, p. 97, citing 5 C.J. 607). In fact, if there is no actual taking,
there can be no robbery. Unlawful taking of personal property of another is an essential part of the
crime of robbery.

Appellant insists that while the "giving" has been proven, the "taking" has not. And this is because
neither he nor his three co-accused touched the P5,000.00 given by Severino nor the latter's wallet
or watch during the entire incident; proof of which is that none of those items were recovered from
their persons.
Those factual allegations are contradicted by the evidence. Rodita, the lumberyard employee,
testified that upon demand by Appellant, Severino put P20,000.00 inside a paper bag and
subsequently handed it to Appellant. In turn, accused Simplicio Canasares took the wallet and
wristwatch of Severino. In respect of the P50,000.00 from Mayor Caram, Rodita declared that the
Mayor handed the amount to her after she (the Mayor) had opened the padlocked door and that she
thereafter gave the amount to one of the holduppers. The "taking" was, therefore, sufficiently proved
(TSN, July 1, 1987, pp. 12-13, 15-16, 27-31). The money demanded, and the wallet and wristwatch
were within the dominion and control of the Appellant and his co-accused and completed the taking.
The State established a "taking" sufficient to support a conviction of robbery even
though the perpetrators were interrupted by police and so did not pick up the money
offered by the victim, where the defendant and an accomplice, armed with a knife
and a club respectively, had demanded the money from the female clerk of a
convenience store, and the clerk had complied with their instructions and placed
money from the register in a paper bag and then placed the bag on the counter in
front of the two men; these actions brought the money within the dominion and
control of defendant and completed the taking. (Johnson vs. State, 432 So 2d 758).
"Severance of the goods from the possession of the owner and absolute control of
the property by the taker, even for an instant, constitutes asportation (Adams vs.
Commonwealth, 154 SW 381; State vs. Murray, 280 SW 2d 809; Mason vs.
Commonwealth, 105 SE 2d 149) [Emphasis supplied].
It is no defense either that Appellant and his co-accused had no opportunity to dispose of the
personalities taken. That fact does not affect the nature of the crime, From the moment the offender
gained possession of the thing, even if the culprit had no opportunity to dispose of the same, the
unlawful taking is complete (Reyes, Revised Penal Code Annotated, Book II, 1981 ed., p. 594).
The crime is consummated when the robber acquires possession of the property,
even if for a short time, and it is not necessary that the property be taken into the
hands of the robber, or that he should have actually carried the property away, out of
the physical presence of the lawful possessor, or that he should have made his
escape with it" (People vs. Quinn, 176 P 2d 404; Woods vs. State, 220 SW 2d 644;
People vs. Beal, 39 P 2d 504; People vs. Clark, 160 P 2d 553).
Contrary to Appellant's submission, therefore, a conviction for consummated and not merely
attempted Robbery is in order.
It is the contention of Appellant that Rodita could not have seen the taking because the place was
dark since the doors were closed and there were no windows. It will be recalled, however, that
Rodita was one of the hostages herself and could observe the unfolding of events. Her failure to

mention the taking in her sworn statement would not militate against her credibility, it being settled
that an affidavit is almost always incomplete and inaccurate and does not disclose the complete
facts for want of inquiries or suggestions (People vs. Andaya, G.R. No. L-63862, 31 July 1987, 152
SCRA 570; People vs. Tan, et al., 89 Phil. 337 [1951]).
The fact, too, that Rodita was an employee of Severino would not lessen her credibility. The defense
has not proven that she was actuated by any improper motive in testifying against the accused.
In the last analysis, the basic consideration centers around the credibility of witnesses in respect of
which the findings of the Trial Court are entitled to great weight as it was in a superior position to
assess the same in the course of the trial (see People vs. Ornoza G.R. No. L-56283, 30 June 1987,
151 SCRA 495; People vs. Alcantara, G.R. No. L-38042, 30 June 1987, 151 SCRA 326).
Anent the second assignment of error, the "surrender" of the Appellant and his co-accused cannot
be considered in their favor to mitigate their liability. To be mitigating, a surrender must have the
following requisites: (a) that the offender had not been actually arrested; (b) that the offender
surrendered himself to a person in authority or to his agent; and (c) that the surrender was voluntary
(People vs. Canamo, G.R. No. L-62043, 13 August 1985, 138 SCRA 141).
The "surrender" by the Appellant and his co-accused hardly meets these requirements. They were,
indeed, asked to surrender by the police and military authorities but they refused until only much
later when they could no longer do otherwise by force of circumstances when they knew they were
completely surrounded and there was no chance of escape. The surrender of the accused was held
not to be mitigating as when he gave up only after he was surrounded by the constabulary and
police forces (People vs. Sigayan et al., G.R. Nos. L-18523-26, 30 April 1966, 16 SCRA 839; People
vs. Mationg G.R. No. L-33488, 29 March 1982, 113 SCRA 167). Their surrender was not
spontaneous as it was motivated more by an intent to insure their safety. And while it is claimed that
they intended to surrender, the fact is that they did not despite several opportunities to do so. There
is no voluntary surrender to speak of (People vs. Dimdiman 106 Phil. 391 [1959]).
All told, the assigned errors remain unsubstantiated and we find the guilt of the accused-appellant,
Bienvenido Salvilla, established beyond reasonable doubt.
Although unassigned as an error, we deem it necessary to turn now to the nature of the linked
offenses involved and the penalty imposed by the Trial Court.
Appellant and his co-accused were charged in the Information with "Robbery with Serious Physical
Injuries and Serious Illegal Detention ("Art. 295, par. 3, in conjunction with Art. 267, RPC )and
sentenced to reclusion perpetua. We agree with the Trial Court that a complex crime under Article 48
of the Revised Penal Code has been committed such that the penalty for the more serious offense of
Serious Illegal Detention (Art. 267, Revised Penal Code), or "reclusion perpetua to death," is to be
imposed instead of the penalty prescribed for Robbery with Serious Physical Injuries (Art. 294 (3),
which is reclusion temporal.
Under Article 48, a complex crime arises "when an offense is a necessary means for committing the
other." The term "necessary means" does not connote indispensable means for if it did then the

offense as a "necessary means" to commit another would be an indispensable element of the latter
and would be an ingredient thereof. The phrase "necessary means" merely signifies that one crime
is committed to facilitate and insure the commission of the other (Aquino, Revised Penal Code, Vol.
I, 1987 ed., p. 624, citing Dissent, Montemayor, J., Amado Hernandez, 99 Phil. 515). In this case, the
crime of Serious Illegal Detention was such a "necessary means" as it was selected by Appellant
and his co-accused to facilitate and carry out more effectively their evil design to stage a robbery.
The facts of this case differ from those in People vs. Astor, et al. (G.R. Nos. L-71765-66, 29 April
1987, 149 SCRA 325) where the accused were convicted of Robbery but acquitted in the case for
Serious Illegal Detention and where it was held that "the detention is absorbed in the crime of
robbery." For one, in Astor, there were two (2) separate Informations filed, one for Robbery and
another for Serious Illegal Detention. In the present case, only one Information was filed charging
the complex offense. For another, in Astor, the robbery had already been consummated and the
detention was merely to forestall the capture of the robbers by the police. Not so in this case, where
the detention was availed of as a means of insuring the consummation of the robbery. Further,
inAstor, the detention was only incidental to the main crime of robbery so that it was held therein:
. . . were appellants themselves not trapped by the early arrival of the police at the
scene of the crime, they would have not anymore detained the people inside since
they have already completed their job. Obviously, appellants were left with no choice
but to resort to detention of these people as security, until arrangements for their safe
passage were made. This is not the crime of illegal detention punishable under the
penal laws but an act of restraint in order to delay the pursuit of the criminals by
peace officers (People v. Sol, 9 Phil. 265; People v. Uday 55 Phil. 167, cited in the
Revised Penal Code, Aquino, Vol. 3, 1976 ed., p. 1337). Where the victims in a
robbery case were detained in the course of robbery, the detention is absorbed by
the crime of robbery (P. v. Baysa, 92 Phil. 1008, id.). In the case at bar, the detention
was only incidental to the main crime of robbery, and although in the course thereof
women and children were also held, that threats to kill were made, the act should not
be considered as a separate offense. Appellants should only be held guilty of
robbery.
In contract, the detention in the case at bar was not only incidental to the robbery but was a
necessary means to commit the same. After the amount of P20,000.00 was handed to Appellant, the
latter and his co-accused still refused to leave. The victims were then taken as hostages and the
demand to produce an additional P100,000.00 was made as a prerequisite for their release. The
detention was not because the accused were trapped by the police nor were the victims held as
security against the latter. The detention was not merely a matter of restraint to enable the
malefactors to escape, but deliberate as a means of extortion for an additional amount. The police
and other authorities arrived only much later after several hours of detention had already passed.
And, despite appeals to appellant and his co-accused to surrender, they adamantly refused until the
amount of P100,000.00 they demanded could be turned over to them. They even considered
P50,000.00, the amount being handed to them, as inadequate.
The foregoing features also distinguish this case from those of U.S. v. Sol, 9 Phil. 265 [1907] where
the restraint was for no other purpose than to prevent the victims from reporting the crime to the

authorities; from People v. Gamboa, 92 Phil. 1085 [1953] where the victims were taken to a place
one kilometer away and shot in order to liquidate the witnesses to the robbery; from People v.
Baysa, 92 Phil. 1008 [1953]; People v. Manzanilla, 43 Phil. 167 [1922], all of which cases were cited
in Astor and where the victims were only incidentally detained so that the detention was deemed
absorbed in robbery.
In other words, unlike in the above cases, the elements of the offense of Serious Illegal Detention
are present in this case. The victims were illegally deprived of their liberty. Two females (Mary and
Minnie) and a minor (Minnie), a specified circumstance in Article 267 (3), were among those
detained. The continuing detention was also for the purpose of extorting ransom, another listed
circumstance in Article 267 (last parag.) not only from the detained persons themselves but even
from the authorities who arrived to rescue them.
It follows then that as the detention in this case was not merely incidental to the robbery but a
necessary means employed to facilitate it, the penalty imposed by the Trial Court is proper.
WHEREFORE, the judgment appealed from is hereby AFFIRMED. Proportionate costs.
SO ORDERED.
Paras, Padilla Sarmiento and Regalado JJ., concur.

http://www.lawphil.net/judjuris/juri1990/apr1990/gr_86163_1990.html

FIRST DIVISION
[G.R. No. 307. September 12, 1902. ]
THE UNITED STATES, Complainant-Appellee, v. AGUSTIN VILLANUEVA, Defendant-Appellant.
Emilio Gaudier, for Appellant.
Assistant Attorney-General Constantino, for Appellee.
SYLLABUS

1. CRIMINAL LAW; ATTEMPTED ESTAFA. One who fraudulently assumes authority to demand fees for the
Forestry Bureau is guilty of attempted estafa if his demands were not complied with on account of the
victims inability or unwillingness to pay.

DECISION

TORRES, J. :

Appeal by the defendant, Agustin Villanueva, against the judgment of the 18th of November, 1897, rendered
in case No. 5606 by the court of La Laguna, for attempted estafa, by which he was condemned to pay 500
pesetas fine, or to the subsidiary personal penalty, and to the payment of one-third part of the costs.
On the 25th of November, 1884, Celestino Borlasa filed a complaint before the local authorities of the town
of Lilio against Agustin Villanueva, stating that he, accompanied by Juan urna, had gone to the
complainants house, and, after having examined the house, by order, as stated by Villanueva, of the
forestry officer, Hermenegildo de Ocampo, and having observed that the house was built with new lumber,
as well as several other houses also examined, demanded of the complainant the sum of 6 pesos and 2 reals
for the purpose of avoiding a fine and with a view to preparing a petition for obtaining a free permit to cut
timber. This amount the complainant was unable to pay, and Villanueva refused to receive 3 pesos, which
was offered him by Borlasa.
This fact, proven by the testimony of two trustworthy witnesses, constitutes the crime of attempted estafa,
defined and punished by section 1 of article 534 and section 1 of article 535 in connection with article 66 of
the Penal Code. The facts established by the evidence in the case show that the attempt was made to obtain
the sum of 6 pesos and 2 reals by fraudulent representations and for purposes not justified or authorized by
the forestry law. If the estafa was not consummated it was because the complainant either could not or
would not pay the amount demanded, and simply offered a little less than half, which the defendant, in turn,
refused to accept.
The defendant, Agustin Villanueva, is guilty, as author by direct participation, of the crime of attempted
estafa of a sum not exceeding 250 pesetas, by his own confession. Although the defendant did not succeed
in consummating the crime of obtaining the money upon the fraudulent pretext of having been authorized
by the forester, Hermenegildo de Ocampo, an employee of the Forestry Bureau, the fact is that he attempted
to obtain the amount demanded and refused to receive the 3 pesos which the complainant offered him, this
being less than one-half of the amount demanded.
All these facts are established by the testimony of the two witnesses there present and by another witness,
who affirms that he saw Villanueva in conversation with the complainant, Celestino Borlasa, although not
aware of the subject of their conversation.
The unsupported allegation by the defendant that he had acted under the orders and upon the authority of
the ranger, Ocampo, who was not arrested and is still absent, can not serve as an excuse or relieve him
from the charge brought against him, inasmuch as the forester was not authorized or empowered to give
such orders, nor is such an action authorized by law.
In the commission of the crime, and for the purpose or the imposition of the penalty, the concurrence of the
aggravating circumstance of No. 18 of article 10 of the Code must be considered, because Villanueva has
been already convicted by final judgment of three other crimes of estafa, and, therefore, no mitigating
circumstance being present to offset the effects of the aggravating circumstance, the defendant must suffer
the penalty prescribed by the law in its maximum degree, although, in consideration of the provisions of
article 83 of the Code, and it not appearing that the financial position of the defendant is such that he may
be classed as a rich man, which appears from the nature of the crime, the fine to which he has become
liable should not be a heavy one, and therefore, by virtue of articles 26, 83, 92, and those above cited,
section 50 of General Orders, No. 58, and the law of August 10, 1901, we are of the opinion that the
judgment appealed should be affirmed with reference to the defendant, Villanueva, but in case of inability to
pay the fine, the subsidiary imprisonment can not exceed one month and one day, the preventive
imprisonment suffered to be computed, the defendant to pay one-third of the costs of this instance, without
special mention as to the defendant Juan Urna acquitted by the court below. So ordered.

Arellano, C.J., Cooper, Willard, Mapa and Ladd, JJ., concur.

http://www.chanrobles.com/cralaw/1902septemberdecisions.php?id=88

FIRST DIVISION
[G.R. No. 83696 : December 21, 1990.]
192 SCRA 621
THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. DANTE
BARTULAYAccused-Appellant.
DECISION
MEDIALDEA, J.:

Subject of this appeal is the decision of the Regional Trial Court, Branch 49, Puerto Princesa
City, in Criminal Case No. 3042 entitled "People vs. Dante Bartulay" convicting appellant
Dante Bartulay of the crime of robbery with homicide under an amended information which
reads:
"The undersigned accuses ROSALIO LAGUARDIA alias "ROLLY", DANTE BARTULAY alias
"TOTOY", BALTAZAR BERAN alias "BOY BUNGAL", as principals, and RAYMUNDO BARTULAY
alias "MANDING", as accessory, of the crime of "ILLEGAL POSSESSION OF FIREARM WITH
ROBBERY WITH HOMICIDE," committed as follows:
'That on or about the 6th day of September, 1979, and for sometime prior thereto, in Puerto
Princesa City, Philippines, and within the jurisdiction of this Honorable Court, accused
Rosalio Laguardia, Dante Bartulay and Baltazar Beran, conspiring and confederating
together and mutually, helping one another, did then and there wilfully, unlawfully and
feloniously have in their possession, custody and control the following firearm(s), to wit:
One (1) .380 cal., automatic pistol and One (1) 22 cal. revolver with Serial No. 64618,
without having the necessary license and/or permit from the proper authorities; that while
in possession of aforedescribed firearms at the aforementioned place and date, the said
accused conspiring and confederating together and mutually helping one another, with
intent of gain and without the consent and against the will of the owners, by means of force,
violence and intimidation and with the use of aforementioned firearms and motor vehicle,
did then and there wilfully, unlawfully and feloniously take, steal and carry away from one
MIGUEL 'MIKE' CHUA the amount of P50,000.00 cash, more or less, and P37,000.00 in
checks, more or less and a panel truck worth P100,000.00 in the total value of P187,000.00
more or less, belonging to said MIGUEL 'MIKE' CHUA and the FORTUNE TOBACCO
CORPORATION, to the damage and prejudice of the latters (sic) in the aforesaid amount;
that on the occasion of said robbery and for the purpose of enabling them to take said
amount and panel truck the said accused, in pursuance of their conspiracy, with treachery,
evident premeditation, taking advantage of nighttime, with the use of a motor vehicle and
with intent to kill, did then and there wilfully, unlawfully, and feloniously assault, attack and
shoot one MIGUEL 'MIKE' CHUA, thereby inflicting upon the latter mortal gunshot wounds
which were the direct and immediate cause of his death; that accused Raymundo Bartulay,
having full knowledge of the commission of the aforementioned robbery with homicide and
without having participated therein either as principal or accomplice, take part subsequent
to its commission by then and there profiting himself and/or assisting the abovenamed
principal accused to profit by the effects of the crime and also by concealing and hiding the
cash money and checks taken from said Miguel 'Mike' Chua in order to prevent its discovery
by the authorities.'
"CONTRARY TO LAW with the aggravating circumstances of evident premeditation,
treachery, use of a motor vehicle and nighttime." (pp. 1-2, Original Records)
Since appellant evaded arrest, his co-conspirators Rosalio Laguardia and Baltazar Beran,
were convicted ahead of him and are now serving sentence at the National Penitentiary
Muntinlupa, Metro Manila. On April 28, 1985, appellant was arrested at Agno St., Tatalon,
Quezon City by elements of the Manila Police Force (pp. 6-7; 293, Ibid).
At the arraignment, appellant with the assistance of Attys. Gregorio Austria and Ma. Buen
Consejo, pleaded GUILTY to the crime of robbery; NOT GUILTY to homicide; hence, a
conditional plea of NOT GUILTY was entered into the records (p. 28, Ibid).
The facts as gleaned from the records are as follows:
Benjamin Caca, driver of Fortune Tobacco Corporation and principal witness for the
prosecution, testified that: On September 6, 1979, at about 10:00 in the evening, the

victim, Miguel `Mike' Chua, salesman of the Fortune Tobacco Corporation, was driving a
panel truck, together with him, helper Edgardo Aniar and friend Frank Morante, passing
along kilometer 36 southroad, a zigzag road inside the Iwahig Penal Colony, on their way to
Puerto Princesa City. The group had come from Brooke's Point, Palawan where they
delivered cigarettes and collected payments for previous sales amounting to more or less
P100,000.00. At a distance of five (5) meters, from the approaching truck, appellant Dante
Bartulay and Baltazar Beran, co-accused, motioned to Mike Chua to stop. When the truck
stopped at the middle of the road, co-accused Beran approached the victim at the pretext of
borrowing a screw driver. The victim told Beran to wait as he will park the truck on the side
of the road. At this point, appellant and Beran pulled out their guns and announced a
holdup. They ordered the four persons to alight from the truck. Beran directed him, Edgardo
Aniar and Frank Morante to stay at the right side of the road some five (5) meters away
from the truck while appellant separately led the victim about two meters away from them
on the same side of the road. The four of them were ordered to lie down facing the ground.
Appellant with one foot, stepped on the shoulder of the victim while pointing a gun at him.
Beran then divested him and Frank Morante of their watches and wallets while appellant
took Chua's watch and wallet. Appellant asked the victim where his collection was. The
latter told appellant that the money is placed at the back of the driver's seat. Appellant then
ordered Beran to get the money. The latter did and gave the money contained in a paper
bag to appellant. Thereafter, Beran demanded the keys of the truck from the victim, who
gave them to appellant, who in turn gave them to Beran. Beran then ordered the
companions of the victim to go inside the panel truck. Some twenty five (25) seconds after
they were locked up inside the truck, two successive shots were fired. The truck then
started to move and while in motion, he opened the secret exit door of the panel and was
able to jump out, rolling on the ground until he reached the canal. He was able to hitch a
ride up to Narra, Palawan where he reported the incident to the police authorities (Hearing
of Sept. 13, 1985; T.S.N., pp. 5-20). The next day, September 7, 1979, the cadaver of
Miguel Chua was examined by Dr. Rufino Ynzon, the City Health Officer of Puerto Princesa
City. His findings were contained in a necropsy report as follows:
:-cralaw

"POSTMORTEM-FINDINGS
"1. Wound, gunshot, (entrance) roughly circular hole, 8-9 mm. in diameter, surrounded by a
contuso-abraded collar, located at the occipital region, 3 inches above from the occipital
protroberance.
"2. (a) Wound, gunshot (exit) hole which is irregular in shape, about 1 inch long, located at
the left frontal bone, 2 1/2 inches above left superior orbital ridge.
(b) Wound, gunshot (exit) hole which is irregular in shape, about 3/4 inch, long, 1 1/2
inches above wound of exit-(a).
"3. Wound, punctured-lacerated, about 1/3 inch in diameter, located at the left inferior
orbital ridge.
"4. Contusion with hematoma, located at the left superior orbital portion.
"5. Contusion with hematoma, located at the right superior orbital portion.
"6. Abrasions, located at the left arm, medial third, anterior portion.
"7. Abrasions, located at the left elbow, posterior portion.
CAUSE OF DEATH:
HEMORRHAGE, MASSIVE, INTRA-EXTRA CRANIAL, SECONDARY TO GUNSHOT WOUND."
(Exhibit "B", Folder of Exhibits).

Appellant took the PAL second flight in Puerto Princesa to Manila in the morning of
September 7, 1979 (T.S.N., p. 127; Hearing of July 21, 1986; Ibid., p. 198, Hearing of
October 30, 1987).
M/Sgt. Eugenio Enriquez, head of the Intelligence and Operations of the Palawan
Constabulary Command, stated that the police authorities were able to investigate Anthony
Pediapco who informed them of the presence of one "Boy Bungal" at the scene of the crime
as he even borrowed some tools from him that night. After ascertaining that "Boy Bungal"
was Baltazar Beran, police authorities traced his whereabouts and arrested him on
September 8, 1979. Recovered from him was P4,500.00 which he admitted was part of his
share from the booty (Exhibits "F" and "F-1", "G" and "G-1" and "H" and "H-1" Folder of
Exhibits). Beran executed a confession before the police authorities on the day he was
arrested (Exhibits "P" and "Q", Ibid.) and another statement on September 9, 1979 (Exhibit
"Q", Ibid). Based on said confessions, the police authorities were able to recover from the
roof of the kitchen of one Rosalio Laguardia, the revolver he used during the holdup, the
motorcycle owned by Laguardia, which was used as a getaway vehicle, and some part of the
share of appellant from the loot entrusted by him to his brother Raymundo Bartulay who,
upon investigation by the police, voluntarily informed them of the place where it was hidden
(Exhibits "I"-"N", Ibid.; T.S.N., pp. 55-76, Hearing of Sept. 24, 1985; Ibid., pp. 86-98,
Hearing of Feb. 14, 1985).
chanrobles virtual law library

At the trial, appellant admitted that he and Beran only agreed to stage a holdup. He
portrayed himself as the one who guarded the companions of Miguel Chua and that he was
instructed by Beran to get the money from behind the driver's seat. He stated that upon
finding the bag containing the money, he heard two successive shots; he even resented why
Baltazar Beran had to kill Miguel Chua as they merely planned to rob him; he was
responsible in saving the lives of the three passengers by pleading to Baltazar Beran to
spare them (T.S.N., pp. 178, 184, Hearing of Oct. 29, 1987).
On March 8, 1988, the trial court rendered its decision convicting appellant of the crime of
robbery with homicide, the dispositive portion of which states:
"WHEREFORE, the Court find (sic) and so founds (sic) Dante Bartulay guilty beyond
reasonable doubt of the crime of Robbery with Homicide defined and penalized under Article
294 (1) of the Revised Penal Code, as principal by direct participation, hereby sentences him
to suffer the penalty of RECLUSION PERPETUA, with all accessories provided for by law, to
indemnify the heirs of Miguel Chua the amount of Seven Hundred Twenty Thousand
(P720,000.00) Pesos for the expected earnings, Ten Thousand (P10,000) Pesos for moral
damages and Ten Thousand (P10,000.00) Pesos for exemplary damages and to pay the
costs." (p. 55, Rollo).
In seeking the reversal of his conviction, appellant claims that the trial court erred: (1) in its
findings that he was the one who shot Miguel Chua; (2) in finding him guilty of the complex
crime of robbery with homicide despite lack of evidence; and (3) in failing to appreciate that
he endeavored and in fact was successful in preventing Baltazar Beran from killing the three
companions of Miguel Chua. Appellant admits participation in the commission of robbery but
vehemently and specifically denies any participation in the killing of Miguel Chua (pp. 63-64,
Rollo).
The evidence indubitably shows that appellant and co-accused Beran agreed to commit
robbery at Km. 36, Zigzag Road, Iwahig Penal Colony, Puerto Princesa City, two (2) weeks
prior to the incident. On September 6, 1979, both appellant and Beran succeeded in robbing
Miguel Chua of P87,000.00 and the victim was shot to death 25 seconds subsequent to his
three companions' entry into the van. There was no eyewitness to the killing of the said
victim. Neither was there a showing that appellant endeavored to prevent the killing of
Chua. A conspiracy in the statutory language exists when two or more persons avow to an

agreement concerning the commission of a felony and decide to commit it (People v. Taaca,
G.R. No. 35652, September 29, 1989).
Appellant tries to exculpate himself of criminal liability by pointing to co-accused Beran as
the one who fired the shots and killed Chua. When the conspiracy to commit the crime of
robbery was conclusively shown by the concerted acts of the accused and homicide was
committed as a consequence thereof, all those who participated are liable as principals in
the robbery with homicide, although they did not actually take part in the homicide, unless
it appears that they attempted to prevent the killing. The question as to who actually
robbed or who actually killed is of no moment since all of them would be held accountable
for the crime of robbery with homicide (People v. Salvador, G.R. No. 77964, July 26, 1988,
163 SCRA 574 [1988]). (Emphasis supplied).
:- nad

Moreover, the following actuations of appellant after the shots were fired clearly show that
he is a co-conspirator: (a) immediately after the firing of the shots, he followed the truck
driven by Baltazar Beran in the motorcycle; (b) when they reached Montible, Baltazar Beran
abandoned the truck, rode in the motorcycle with appellant and proceeded to the house of
appellant's brother in Puerto Princesa City where they divided the loot (T.S.N., pp. 184, 196199, Hearing of Oct. 30, 1987). Where conspiracy has been established, a showing as to
who inflicted the fatal blow is not required. (People v. Alvarez, G.R. No. 70446, January 31,
1989, 169 SCRA 730).
Finally, appellant admitted that when he heard the news that he was being hunted by police
authorities in connection with the crime, he immediately bought a plane ticket at the PAL
office in Puerto Princesa City and took the second flight to Manila in the morning of
September 7, 1979. His sudden departure is indicative of guilt. The guilty flee when no man
pursueth but the innocent are as bold as a lion (People v. Espinosa, G.R. No. 72883,
December 20, 1989).
As correctly found by the trial court, the use of motor vehicle by the appellant and his coconspirator aggravated the commission of the offense since the vehicle was used to facilitate
their escape from the scene of the crime.
The penalty of robbery with homicide prescribed in Article 294 of the Revised Penal Code is
reclusion perpetua to death. Since only one aggravating circumstance attended the
commission of the offense, the greater penalty that is death shall be applied pursuant to
Article 63 of the Revised Penal Code. However, this penalty cannot be imposed presently in
view of the 1987 Constitution. Hence, the penalty of reclusion perpetua was correctly
imposed by the trial court upon the appellant.
The trial court correctly convicted accused of robbery with homicide only despite the fact
that the amended information charged all the four accused namely, Rosalio Laguardia,
Dante Bartulay and Baltazar Beran of the crime of illegal possession of firearm with robbery
with homicide. The information alleges that the four accused by conspiring and
confederating together, unlawfully have in their possession one .380 cal. automatic pistol
and one 22 cal. revolver with Serial No. 64618 without the necessary license or permit from
the proper authorities and that while in the possession of said firearms, the four accused, by
conspiring together, committed robbery with homicide.
The information herein is violative of Section 13 Rule 110 of the Rules on Criminal Procedure
which states that a complaint or information must charge but one offense except in certain
cases. The four accused are charged with two separate offenses of illegal possession of
firearms and robbery with homicide. When each one of two offenses committed is
punishable by two different laws, they cannot be charged in one information as a complex
crime but must be regarded as two separate and distinct offenses, each one to be the
subject of separate informations. When duplicity of offenses exists in an information the

accused must present his objection by filing a motion to quash the information on the
ground of duplicity of offenses. If the accused fails to object and goes to trial under the
information which contains a description of more than one offense, the general rule is he
thereby waives the objection and may be found guilty of and should be sentenced for, as
many offenses as are charged in the information and proved during trial (People v. Medina
59 Phil. 134; People v. Miana 50 Phil. 771). This rule however shall apply only if the accused
is formally arraigned and required to plead on all the offenses as are charged in the
information. Otherwise, the accused cannot be convicted of the offenses with respect to
which he was not properly arraigned.
In the case at bar, the accused was not formally arraigned as to the offense of illegal
possession of firearm. The information wrongly complexed the robbery with homicide with
the special offense of illegal possession of firearm. In effect, the accused is charged with
two distinct offenses. He should therefore be arraigned and required to plead to the two
offenses. Records show that during the arraignment, the accused pleaded guilty to robbery
and not guilty to homicide. Hence, the trial court entered a conditional plea of not guilty for
him to the offense of robbery with homicide, without requiring the accused to enter his plea
to the illegal possession of firearms (p. 28, Records). And in the rendition of judgment, the
trial court convicted him only of robbery with homicide as there was no proper arraignment
of the accused concerning the other offense. In one case, this Court held that where the
defendant is charged with three separate offenses, and he pleaded guilty to the two
offenses without pleading to the third offense charged, the court cannot render judgment of
conviction on the third offense without requiring him to plead (US v. Sobrevias 35 Phil.
32). This is based on the principle that a defendant is legally placed on trial only when issue
upon the information which charges such an offense has been joined after arraignment by
his plea of not guilty thereto (People v. Ylagan 58 Phil. 851).
We shall sustain the monetary award, consisting of loss of earnings, made by the trial court
in favor of the heirs of the victim as this matter was not raised in issue in this appeal.
Further, this Court grants the amount of P50,000.00 as death indemnity to be paid by the
appellant to the heirs of the victim, in accordance with the new policy of this Court laid
down in the Resolution of this Court en banc dated August 30, 1990 and in People v. Daniel
Sison, G.R. 86455, September 14, 1990, in addition to the moral and exemplary damages
awarded by the trial court.
:-cralaw

ACCORDINGLY, except for the above mentioned modification, the decision appealed from
convicting the accused appellant of the crime of robbery with homicide and sentencing him
to suffer the penalty of reclusion perpetua with all the accessories provided for by law is
AFFIRMED.
http://www.chanrobles.com/cralaw/1990decemberdecisions.php?id=79

G.R. No. L-23249 November 25, 1974

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
CUNIGUNDA BOHOLST-CABALLERO, accused-appellant.
Office of the Solicitor General Arturo A. Alafriz, Assistant Solicitor General Florencio Villamor and
Attorney Concepcion F. Torrijos for plaintiff-appellee.
Accused-appellant in her own behalf.

MUOZ PALMA, J.:p

Convicted for having killed her husband, Cunigunda Boholst-Caballero seeks a reversal of the
judgment of the Court of First Instance of Ormoc City finding her guilty of PARRICIDE and
sentencing her "to suffer an indeterminate imprisonment of from EIGHT (8) YEARS and ONE (1)
DAY of prision mayor in its medium period, as the minimum, to FOURTEEN (14) YEARS, EIGHT (8)
MONTHS and ONE (1) DAY of reclusion temporal in its medium period as the maximum; to
indemnify the heirs of Francisco Caballero in the sum of SIX THOUSAND PESOS (P6,000.00)
without subsidiary imprisonment in case of insolvency, and to pay the costs", and prays for an
acquittal based on her plea of self-defense. 1
The Solicitor General however asks for the affirmance of the appealed decision predicated on the
following testimonial and documentary evidence presented by the prosecution before the trial court:
Cunigunda Boholst and Francisco Caballero, both at the age of twenty, were married on June 7,
1956, at a ceremony solemnized by the parish priest of the Roman Catholic Church in Ormoc
City. 2 The marriage was not a happy one and before the end of the year 1957 the couple separated. Late
in the evening of January 2, 1958, Francisco Caballero and two companions, namely, Ignacio Barabad
and Kakong Sacay, drank "tuba" in a certain house in barrio Ipil, Ormoc City. At about midnight, Francisco
Caballero and his companions proceeded home. On the way, they saw Francisco's wife, Cunigunda,
standing at the corner of the yard of Igmedio Barabad Cunigunda called Francisco and when the latter
approached her, Cunigunda suddenly stabbed Francisco with a knife marked by the prosecution as its
Exhibit C. Francisco called for help to his two companions who upon seeing that Francisco was wounded,
brought him to the St. Jude Hospital. 3 Dr. Cesar Samson, owner of the hospital, personally attended to
the victim and found a "punctured wound on the left lumbar region measuring 1 inch externally" (Exhibit
B). First aid was given, but because there was a need for blood transfusion and the facilities of the
hospital were inadequate to provide the necessary treatment, Dr. Samson suggested that the patient be
transported to Cebu City. 4 In the meantime, Cunigunda Caballero had gone to the Police Department of
Ormoc City, surrendered to desk sergeant Restituto Mariveles and informed the latter that she stabbed
her husband. 5 While Francisco Caballero was confined at the hospital, he was interrogated by Patrolman
Francisco Covero concerning the identity of his assailant and he pointed to his wife Cunigunda. The
questions propounded by Pat. Covero and the answers given by the victim were written down in a piece
of paper on which the victim affixed his thumbmark (Exhibit D) in the presence of his brother, Cresencio
Caballero, and another policeman, Francisco Tomada. 6 On January 4, 1958, Francisco Caballero was
brought to Cebu City on board the "MV Ormoc" but the trip proved futile because the victim died at
noontime of the same day from the stab wound sustained by him. 7
Appellant, on the other hand, pleads that We discard the proof adduced by the prosecution and
believe instead what she declared before the trial judge briefly summarized as follows:
After her marriage to Francisco Caballero on June 7, 1956, appellant lived with her husband in the
house of her parents in barrio Ipil, Ormoc City, and their marriage, although not a harmonious one,
was blessed with a daughter; her married life was marked by frequent quarrels caused by her
husband's "gambling, drinking, and serenading", and there were times when he maltreated and beat
her; after more than a year she and her husband transferred to a house of their own, but a month

had hardly passed when Francisco left her and her child, and she had to go back to live with her
parents who bore the burden of supporting her and her child; in the month of November, 1957, her
daughter became sick and she went to her husband and asked for some help for her sick child but
he drove her away and said "I don't care if you all would die"; in the evening of January 2, 1958, she
went out carolling with her friend, Crispina Barabad, and several men who played the musical
instruments; at about 12:00 o'clock midnight they divided the proceeds of the carolling in the house
of Crispina Barabad after which she went home, but before she could leave the vicinity of the house
of Crispina, she met her husband Francisco, who upon seeing her, held her by the collar of her dress
and asked her: "Where have you been prostituting? You are a son of a bitch."; she replied: "What is
your business. Anyway you have already left us. You have nothing to do with us"; upon hearing
these words Francisco retorted: "What do you mean by saying I have nothing to do with you. I will kill
you all, I will kill you all"; Francisco then held her by the hair, slapped her face until her nose bled,
and pushed her towards the ground, to keep herself from falling she held on to his waist and as she
did so her right hand grasped the knife tucked inside the belt line on the left side of his body;
because her husband continued to push her down she fell on her back to the ground; her husband
then knelt over her, held her neck, and choked her saying. "Now is the time I can do whatever I want.
I will kill you"; because she had "no other recourse" as she was being choked she pulled out the
knife of her husband and thrust it at him hitting the left side of his body near the "belt line" just above
his left thigh; when she finally released herself from the hold of her husband she ran home and on
the way she threw the knife; in the morning of January 3, she went to town, surrendered to the
police, and presented the torn and blood-stained dress worn by her on the night of the incident (see
Exhibit I); Pat. Cabral then accompanied her to look for the weapon but because they could not find
it the policeman advised her to get any knife, and she did, and she gave a knife to the desk sergeant
which is the knife now marked as Exhibit C for the prosecution. 8
The sole question thus presented in this appeal is: did appellant stab her husband in the legitimate
defense of her person?
The law on self-defense embodied in any penal system in the civilized world finds justification in
man's natural instinct to protect, repel, and save his person or rights from impending danger or peril;
it is based on that impulse of self-preservation born to man and part of his nature as a human being.
Thus, in the words of the Romans of ancient history: Quod quisque ob tutelam sui fecerit, jure suo
ficisse existimetur. 9 To the Classicists in penal law, lawful defense is grounded on the impossibility on the
part of the State to avoid a present unjust aggression and protect a person unlawfully attacked, and
therefore it is inconceivable for the State to require that the innocent succumb to an unlawful aggression
without resistance; while to the Positivists, lawful defense is an exercise of a right, an act of social justice
done to repel the attack of an aggressor. 10
Our law on self-defense is found in Art. 11 of the Revised Penal Code which provides:
ART. 11. Justifying circumstances. The following do not incur any criminal liability:
1. Anyone who acts in defense of his person or rights, provided that the following
circumstances concur:
First. Unlawful aggression;

Second. Reasonable necessity of the means employed to prevent or repel it;

Third. Lack of sufficient provocation on the part of the person defending himself.
xxx xxx xxx
As part of this law is the settled jurisprudence that he who seeks justification for his act must prove
by clear and convincing evidence the presence of the aforecited circumstances, the rationale being
that having admitted the wounding or killing of his adversary which is a felony, he is to be held
criminally liable for the crime unless he establishes to the satisfaction of the court the fact of
legitimate self-defense. 11
In this case of Cunigunda Caballero, the trial court did not find her evidence clear and convincing,
and gave these reasons for its conclusion: a) appellant's testimony is inherently improbable as
brought out by her demonstration of the incident in question during the trial of the case; b) there was
no wound or injury on appellant's body treated by any physician: c) appellant's insistence that the
weapon used by her was Moro hunting knife and not Exh. C is incredible; d) she gave contradictory
statements concerning the report made by her to the police authorities that she was choked by her
husband; and e) her husband's abandonment of her and her child afforded the motive behind
appellant's
attack. 12
We are constrained, however, to disagree with the court a quo and depart from the rule that
appellate court will generally not disturb the findings of the trial court on facts testified to by the
witnesses.
An examination of the record discloses that the trial judge overlooked and did not give due
importance to one piece of evidence which more than the testimony of any witness eloquently
confirms the narration of appellant on how she happened to stab her husband on that unfortunate
night. We refer to the location of the wound inflicted on the victim.
Appellant's account of that fatal occurrence as given in her direct testimony follows:
Q At that precise time when you were going home to the place of
your parents, did any unusual incident occur?
A Yes, sir.
Q What was it?
A At the time when I went down from the house of Crispina Barabad,
when I reached near the banana hill, my husband held me.
Q What happened when your husband, Francisco Caballero, held
you?

A He asked me from where did I prostitute myself.

Q What did you answer?
A I answered that I did not go (on) prostituting. I told him that I was
only forced to accompany with the carolling in order to earn money
for our child.
Q What part of your body did your husband, Francisco Caballero,
hold you?
A He held me at the collar of my dress. (Witness holding the right
portion of the collar of her dress.)
Q After you answered Francisco, what did he do?
A He said "Where have you been prostituting? You are a son of a
bitch." Then I told him "What is your business. Anyway you have
already left us. You have nothing to do with us."
Q When Francisco heard these words, what did he do?
A Francisco said "What do you mean by saying l have nothing to do
with you. I will kill you all. I will kill you all."
Q And then, what happened?
A He held my hair and slapped my face twice. Then I staggered and
my nose was bleeding.
Q Do you mean to say that blood flowed out of your nose?
A Yes, sir.
Q After you were slapped twice and your nose begun to bleed, what
happened next?
A He held the front part of my dress just below the collar and pushed
me towards the ground. .
Q While your husband was holding your dress below the neck and
tried to push you down, what did you do?
A I held a part of his body in order that I would not fall to the ground.
Q And then what happened?

A Because I struggled hard in order that I would not fall to the ground
I held his belt and that was the time I got hold of a weapon along his
belt line.
Q After that what happened?
A He shoved my hands upward and pushed me to the ground and
that was the time my hands were released. He was choking me.
Q When you said your hands were released, was that before or after
you were choked by Francisco Caballero?
A At that time when I was about to fall to the ground that was the time
I released my hands.
Q When you were almost fallen to the ground, where were the hands
of Francisco Caballero?
A On my hair.
Q You mean to say the two hands of Francisco Caballero?
A One of his hands was holding my hair. The other hand pushed me.
COURT:
Q What hand was holding your hair?
A His right hand was holding my hair while his left hand pushed me.
ATTORNEY GARCIA:
Q When you were fallen to the ground what happened?
A While I lay prostrate on the ground and believing that I have no
other recourse, while his left hand was holding my neck, I was able to
take hold of the weapon from his belt line and I thrust it to him.
Q What was this weapon which you were able to get from his belt
line?
A It was a hunting knife." (tsn. pp. 53-55, witness Cunigunda
Caballero)

On cross-examination, appellant was asked by the private prosecutor to show her position when she
stabbed her husband and she did, and although the stenographic notes on that demonstration are
very sketchy which We quote:
Q Please demonstrate to this Court when you made the thrust to your
husband?
A When I took hold of the hunting knife I made the thrust in this
manner. (Witness held the ruler with her right hand kneeled on the
floor)" (tsn. p. 67, ibid)
still We can get a clear picture of what appellant must have done, from the questions and answers
immediately following the above-quoted portion of the transcript, viz:
Q You want to make us understand that when you thrust the weapon
to the body of your husband you were lying down flat to the ground?
A I was lying flat on the ground face upward. I was a little bit inclined
because tried to struggle trying to get away from the hold of my
husband.
Q You want to make us understand that your back was touching the
ground when you made the thrust to your husband?
A Yes, sir.
COURT:
Q Where were you kneeled by your, husband?
A On my right thigh. (ibid; emphasis supplied)
Thus, with her husband kneeling over her as she lay on her back on the ground and his hand
choking her neck, appellant, as she said, had no other recourse but to pull out the knife inserted at
the left side of her husband's belt and plunge it at his body hitting the left back portion just below the
waist, described by the attending physician, Dr. Cesar Samson, as the left lumbar region. The fact
that the blow landed in the vicinity from where the knife was drawn is a strong indication of the truth
of appellant's testimony, for as she lay on the ground with her husband bent over her it was quite
natural for her right hand to get hold of the knife tucked in the left side of the man's belt and thrust it
at that section of the body nearest to her hand at the moment.
We do not agree with the trial judge's observation that as demonstrated by the accused it was
physically impossible for her to get hold of the weapon because the two knees of her husband were
on her right thigh "which would have forced her to put her right elbow towards the ground"(see p. 9
of Decision), for even if it were true that the two knees of Francisco were on his wife's right thigh,
however, there is nothing in the record to show that the right arm of the accused was held, pinned

down or rendered immobile, or that she pressed her elbow to the ground, as conjectured by the trial
judge, in such a manner that she could not reach for the knife. On the contrary, as indicated earlier,
accused testified and so demonstrated that she was lying flat on her back, her husband kneeling
over her and her right arm free to pull out the knife and strike with it.
The trial judge also referred the a demonstration made by appellant of that portion of her testimony
when she was held by the hair and pushed down to the ground, and His Honor commented that
"(S)he could not be falling to the ground, as shown to the Court by her, considering the fact that the
pushing was to and fro as shown in her demonstration." (p. 8, Decision) The trial judge, however,
failed to consider that it is humanly impossible to have an exact and accurate reproduction or
reenactment of an occurrence especially if it involves the participation of persons other than the very
protagonists of the incident being re-enacted. In this particular instance appellant was asked by the
private prosecutor to show how she was pushed down by her husband, and her demonstration is
described in the stenographic transcript as follows:
Q Please demonstrate to this Court the position of your husband and
you while your husband held your hair.
A He did this way. (Witness held the hair of the Court Interpreter with
his left hand and his right hand held the right shoulder of the
Interpreter and pulled the Interpreter to and fro. The Interpreter
represented as the accused and the accused as the deceased.)
Q Where were your two hands?
A My two hands held his waist line. (tsn. 66, witness Cunigunda
Caballero; emphasis supplied)
In that demonstration, accused represented the victim while she in turn was impersonated by the
court interpreter, and so it was difficult if not impossible for the two to give an accurate reenactment
considering that the accused assumed a role not hers during the actual incident and the court
interpreter played a part which was not truly his. At any rate, the accused showed how one hand of
her husband held her hair while the other pushed her down by the shoulder, and to portray how she
in turn struggled and tried to push back her husband to keep herself from falling, she "pulled the
interpreter (representing the accused) to and fro." The fact is that Francisco succeeded in forcing
appellant down to the ground as portrayed by the latter when, following the foregoing demonstration,
she was asked by the private prosecutor to show how she stabbed her husband a matter which is
discussed in pages 8 and 9 of this Decision.
It is this particular location of the wound sustained by the victim which strongly militates against the
credibility of the lone prosecution witness, Ignacio Barabad. This witness declared that on that night
when husband and wife met on the road, Cunigunda called Francisco and when the latter was near,
she immediately stabbed him. If that were true, that is, husband and wife were standing face to face
at a distance of one-half meter when the stabbing occurred (tsn. p. 11, witness Ignacio Barabad), it
would have been more natural and probable for the weapon to have been directed towards the front

part of the body of the victim such as his abdomen or chest, rather than at his back, left side, just
above the left thigh.
In cases such as the one now before Us where there are directly conflicting versions of the incident
object of the accusation, the Court in its search for the truth perforce has to look for some facts or
circumstances which can be used as valuable aids in evaluating the probability or improbability of a
testimony, for after all the element of probability is always involved in weighing testimonial
evidence 13, so much so that when a court as a judicial fact-finder pronounces judgment that a set of facts
constitute the true happening it does so not of its own personal knowledge but as the result of an
evaluating process of the probability or improbability of a fact sought to be proved.
Thus, in People vs. Aquino, L-32390, December 28, 1973, a decision of the First Division of this
Court penned by Chief Justice Querube C. Makalintal, the plea of self-defense of the accusedappellant was sustained on the basis of certain "physical and objective circumstances" which proved
to be of "decisive importance" in ascertaining the veracity of the plea of self-defense, to wit: the
location of the wound on the right side of the throat and right arm of the deceased, the direction of
the trajectories of the bullets fired by the accused, the discovery of bloodstains at the driver's seat,
the finding of the dagger and scabbard of the deceased, and so on. 14
In the case of appellant Cunigunda Caballero, We find the location of the fatal wound as a valuable
circumstance which confirms the plea of self-defense.
Another, is the lack of motive of appellant in attacking and killing her husband on that particular night
of January 2. Although it is the general rule that the presence of motive in the killing of a person is
not indispensable to a conviction especially where the identity of the assailant is duly established by
other competent evidence or is not disputed, as in this case, nonetheless, the absence of such
motive is important in ascertaining the truth as between two antagonistic theories or versions of the
killings. 15
We disagree with the statement of the court a quo that appellant's motive for killing her husband was
his abandonment of her and his failure to support her and her child. While appellant admitted in the
course of her testimony that her marriage was not a happy one, that she and her husband separated
in the month of October, 1957, and since then she and her child lived with her parents who
supported them, nevertheless she declared that notwithstanding their separation she still loved her
husband (tsn. p. 59, cross-examination of appellant). As a matter of fact, appellant had been living
with her parents for several months prior to the incident in question and appeared resigned to her
fate. Furthermore, there is no record of any event which occurred immediately prior to January 2
which could have aroused her feelings to such a degree as to drive her to plan and carry out the
killing of her husband.
On the other hand, it was Francisco Caballero who had a reason for attacking his wife, Cunigunda.
Meeting his wife unexpectedly at past midnight on the road, Francisco reacted angrily, and
suspecting that she was out for some bad purpose he held her by the collar of her dress and said:
"Where have you been prostituting? You are a son of a bitch." This was followed by a slapping on
the face until Cunigunda's nose bled, pulling of her hair, pushing her down to the ground, and

strangling her all of which constituted the unlawful aggression against which appellant had to
defend herself.
Next to appellant's lack of motive for killing her husband, is her conduct shortly after the occurrence.
As soon as the sun was up that morning of January 3 (the stabbing occurred past midnight of
January 2), Cunigunda went to the city and presented herself at the police headquarters where she
reported that she stabbed her husband and surrendered the blood-stained dress she wore that night.
On this point, the trial judge stated that appellant made contradictory statements in her testimony
concerning the report made by her to the police authorities, for while at the start she declared that
she did not report the "choking by her husband", she later changed her testimony and stated that
she did relate that fact. (p. 10, Decision)
We have gone over the stenographic transcript of the testimony of appellant on direct examination
and nowhere is there a positive and direct statement of hers that she did not report that she was
choked by her husband. What the trial judge asked of appellant was whether or not she told the
police about the fist mark on her face and her answer was "No, sir, I forgot." (tsn. p. 55, supra) And
on appellant's cross-examination, there was no question propounded and therefore there was no
answer given on the subject-matter of appellant's report to the police concerning the incident except
for the following:
COURT:
Q Did you show that dress to the police authorities the following day?
A I was not able to wear that, Your Honor, because it was torn out.
Q You did not bring that to the police authorities?
A I showed it to the police authorities, and they told me to keep it, not
to touch it. (Tsn. p. 65, ibid)
We do not see, therefore, the alleged contradiction in appellant's testimony which was singled out by
His Honor as one of his reasons for discrediting her plea of self-defense.
That appellant made it clear to the police that she stabbed her husband because he attacked her is
confirmed by no less than the prosecution witness, Patrolman Restituto Mariveles, who was on duty
at the desk when appellant arrived at the police headquarters. This witness on cross-examination
declared:
Q And she also told you that on that night previous to the incident her
husband Francisco Caballero beat her up, is that right?
A She told me that she was met on the way by her husband
immediately after carolling and she was manhandled by her husband
and when she was struggling to get loose from her husband she
happened to take hold of a knife that was placed under the belt of her

husband and because she was already half conscious she did not
know that she was able to thrust said knife to the stomach of her
husband. (tsn. p. 23, witness R. Mariveles)
It is indeed regrettable that the statements made by appellant to the police upon her surrender were
not taken down in writing to serve as a faithful and reliable account of her report, nevertheless, We
are satisfied by the fact, which is not disputed, that of her own accord appellant went to the police
authorities early in the morning of January 3, informed Policeman Mariveles that she stabbed her
husband because he manhandled her which rendered her "half-conscious", and brought and
showed the dress she wore during the incident which was torn by the collar and with blood stains
due to the bleeding of her nose. Another policeman, Joventino de Leon, who at the time was
property custodian of the Ormoc City police, corroborated appellant's testimony concerning the dress
marked Exhibit 1 for the defense. (tsn. p. 70 witness J. de Leon) If there was no clear and positive
statement in appellant's testimony either on direct or cross examination that she informed the police
that she was choked by her husband, it was because, as We noted, no question was propounded to
her on that point.
While We are on this subject of appellant's surrender, mention is to be made of the knife marked as
Exhibit C for the prosecution. In her testimony, appellant stated that Exhibit C was not the knife
actually used by her in stabbing her husband because the true weapon was her husband's Moro
hunting knife with a blade of around six inches which she threw away immediately after the incident;
that when she was asked by Pat. Mariveles to look for the weapon and she could not find it, she was
advised by policeman Cabral who helped her in the search to get any knife and surrender it to the
desk officer and so she took the knife Exhibit C and presented it to Pat. Mariveles. (tsn. appellant pp.
56-57, 60) This testimony of appellant was taken against her by the court a quo which held that her
declaration could not have been true. We find however no strong reason for disbelieving the
accused on this point. Appellant does not deny that she turned over Exhibit C to Pat. Mariveles as
the knife with which she stabbed her husband but she claims that she did so upon advise of another
policeman, Pat. Cabral, and it is quite significant that the latter was not called upon by the
prosecution to refute such declaration. There is sincerity in appellant's attempt to rectify a
misstatement made by her to Pat. Mariveles and We are inclined to believe and in fact We do
believe that the fatal weapon must have had indeed a blade of around six inches as stated by
appellant for it to penetrate through the left lumbar region to the victim's large intestine and cause
the discharge of fecal matter (tsn. Dr. C. Samson, p. 6)
All the elements of self-defense are indeed present in the instant case.
The element of unlawful aggression has been clearly established as pointed out above.
The second element, that is, reasonable necessity for the means employed is likewise present. Here
we have a woman who being strangled and choked by a furious aggressor and rendered almost
unconscious by the strong pressure on her throat had no other recourse but to get hold of any
weapon within her reach to save herself from impending death. Early jurisprudence of this Court has
followed the principle that the reasonable necessity of the means employed in self-defense does not
depend upon the harm done but rests upon the imminent danger of such injury. (U.S. vs. Paras,
1907, 9 Phil. 367, citing Decision of Dec. 22, 1887) And so the fact that there was no visible injury

caused on the body of the appellant which necessitated medical attention, a circumstance noted by
the trial court, is no ground for discrediting self-defense; what is vital is that there was imminent peril
to appellant's life caused by the unlawful aggression of her husband. The knife tucked in her
husband's belt afforded appellant the only reasonable means with which she could free and save
herself from being strangled and choked to death. What this Court expressed in the case of People
vs. Lara, 1925, 48 Phil. 153, 160, is very true and applicable to the situation now before Us, and We
quote:
It should be borne in mind that in emergencies of this kind human nature does not
act upon processes of formal reason but in obedience to the instinct of selfpreservation; and when it is apparent, as in this case, that a person has reasonably
acted upon this instinct, it is the duty of the courts to sanction the act and to hold the
actor irresponsible in law for the consequences. 16
Equally relevant is the time-honored principle: Necessitas Non habet legem. Necessity knows no
law.
The third element of self-defense is lack of sufficient provocation on the part of the person defending
himself.Provocation is sufficient when it is proportionate to the aggression, that is, adequate enough
to impel one to attack the person claiming selfdefense. 17 Undoubtedly appellant herein did not give sufficient provocation to warrant the aggression or
attack on her person by her husband, Francisco. While it was understandable for Francisco to be angry at
his wife for finding her on the road in the middle of the night, however, he was not justified in inflicting
bodily punishment with an intent to kill by choking his wife's throat. All that appellant did was to provoke
an imaginary commission of a wrong in the mind of her husband, which is not a sufficient provocation
under the law of self-defense. Upon being confronted by her husband for being out late at night, accused
gave a valid excuse that she went carolling with some friends to earn some money for their child. January
2 was indeed within the Christmas season during which by tradition people carol from house to house and
receive monetary gifts in a Christian spirit of goodwill. The deceased therefore should have given some
consideration to his wife's excuse before jumping to conclusions and taking the extreme measure of
attempting to kill his wife.
IN VIEW OF THE ABOVE CONSIDERATIONS, We find that accused-appellant acted in the
legitimate defense of her person, and We accordingly set aside the judgment of conviction and
ACQUIT her with costs de oficio.
http://www.lawphil.net/judjuris/juri1974/nov1974/gr_l_23249_1974.html

G.R. No. 84277 August 2, 1989

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ESTANISLAO BATAS y AUSTRIA and JULIUS MONTANEZ y DE LA CRUZ, accused-appellants.

The Solicitor General for plaintiff-appellee.

Roberto C. Diokno for accused-appellants.

GUTIERREZ, JR., J.:

This is an appeal from the decision of the Regional Trial Court of Batangas City, Branch 3, the
dispositive portion of which reads:
IN VIEW OF THE FOREGOING CONSIDERATIONS, judgment is hereby rendered
as follows:
In Criminal Case No. 2160-3 for Murder, the accused Estanislao Batas y Austria and
Julius Montanez y dela Cruz are hereby sentenced to suffer the penalty of
RECLUSION PERPETUA (Life Imprisonment), to indemnify jointly the lawful heirs of
the deceased Aniceto Hernandez in the sum of Thirty Thousand Pesos (P30,000.00)
and for actual and moral damages in the amount of Twenty Five-Thousand Pesos
(P25,000.00) and to pay the costs; and
In Criminal Case No. 2168-3 for Frustrated Murder, the accused Estanislao Batas y
Austria and Julius Monta;ez y dela Cruz are hereby sentenced to suffer the
indeterminate penalty ranging from FOUR (4) YEARS, TWO (2) MONTHS AND ONE
(1) DAY OF prison correccional, as minimum, to NINE (9) YEARS, FOUR (4)
MONTHS AND TWENTY (20) DAYS OF prison mayor, as maximum, to pay jointly
the victim Petronio Rosales the sum of Ten Thousand Pesos (P10,000.00) for actual,
moral and exemplary damages, and to pay the costs.
Both the accused are entitled to the full credit of their preventive imprisonment
pursuant to existing laws.
Furthermore, it is understood that the penalties imposed by the court shall be served
by the two accused successively, commencing with the penalty imposed in Criminal
Case No. 2160-3 for Murder. (Rollo, pp. 37-38)
In Criminal Case No. 2160-3, the information filed against the accused alleged:
That on or about the 20th day of August, 1984, at about 10:15 o'clock in the evening
at Barangay Taysan, Municipality of San Jose, Province of Batangas, Philippines and
within the jurisdiction of this Honorable Court, the above-named accused, armed with
gulukan and fan knife, commonly known as balisong, conspiring and confederating
together, acting in common accord and mutually helping each other, with intent to kill,
with treachery and evident premeditation, did then and there wilfully, unlawfully and
feloniously attack, assault and stab with the said deadly weapons one Aniceto
Hernandez y Rosales, suddenly and without warning, thereby inflicting upon the

latter multiple stab wounds on the different parts of his body, which directly caused
his death. (Rollo, pp. 5-6)
In Criminal Case No. 2168-3, the information filed against the accused alleged:
That on or about the 20th day of August, 1984, at around 10:15 o'clock in the
evening, at Barangay Taysan, Municipality of San Jose, Province of Batangas,
Philippines and within the jurisdiction of this Honorable Court, the above-named
accused, armed with a bolo and fan knife (balisong), conspiring and confederating
together, acting in common accord and mutually helping each other, with deliberate
intent to kill and without any justifiable cause, with treachery and evident
premeditation, did then and there, wilfully, unlawfully and feloniously attack, assault,
hack and stab with said bolo and fan knife one Petronio Rosales y Villela suddenly
and without warning, thereby inflicting upon the latter hack and stab wounds on the
different parts of his body, which injuries required medical attendance and prevented
him from performing his customary work for a period of six (6) weeks, the accused
thus performing all the acts of execution which should have produced the crime of
murder as a consequence, but which nevertheless did not produce it by reason of
some cause independent of the will of the perpetrator that is due to timely and able
medical attendance rendered to the said offended party which prevented his death.
(Rollo, pp. 7-8)
In addition, both informations also alleged that accused Estanislao Batas is a recidivist, having been
convicted by final judgment on August 26, 1969 for Murder in Criminal Case No. 2519 by the Court
of First Instance of Batangas, Branch 4, now Regional Trial Court of Batangas, Branch 12, Lipa City.
The prosecution evidence upon which the trial court based its finding of guilt beyond reasonable
doubt is as follows:
The first prosecution witness, Petronio Rosales testified that:
xxxxxxxxx
...[H]e and his first cousin, Aniceto Hernandez, were drinking beer at the Toyet
Restaurant located in Brgy. Taysan, San Jose, Batangas on August 20,1984 at
around 9:00 o'clock in the evening; that he and his first cousin arrived at the Toyet
Restaurant at about 9:00 o'clock in the evening on August 20, 1984, with other
people already inside the restaurant, but only Julius Montanez and Estanislao Batas
were known to them (Petronio and Aniceto because Estanislao Batas is also from
their place, San Jose, Batangas, while Julius Montanez though from Nueva Ecija, is
working as a poultry boy in San Jose, Batangas and Petronio often sees him at the
cockpit; that Petronio and Aniceto arrived at the restaurant ahead by more or less ten
minutes of Estanislao Batas and Julius Montanez occupying a separate table about
one meter from that of the former. Petronio was talking about his life in Saudi Arabia
and told Aniceto that in Saudi there is no tough guy (walang barako). That upon
hearing this, Batas and Montanez stood up, approached Petronio and Aniceto and
lwph1.t

asked the latter whether they were the ones referred to in that statement as 'barako',
but Petronio answered the two that they were not the one.
After the exchange of remarks, Batas and Montanez returned to their own table,
imbibed the contents of their bottle and thereafter left the place. Petronio and Aniceto
stayed in the restaurant about fifteen to twenty minutes more after Batas and
Montanez left, but they left Toyet Restaurant before 10:00 o'clock in that evening.
Thereafter, they walked together abreast towards the direction of the poblacion
leading to their residence, Petronio on the north and Aniceto was on the south, but
not far from each other on the said road. All approaching near the bridge, they saw
figures of two persons at a distance of six meters walking towards their direction and
they continued walking towards the opposite direction of said two figures. Petronio
recognized the two persons coming from the opposite direction as Julius and
Estanislao only when they met each other at a distance of three (3) meters already.
That when they met each other and without any word that intervened between
Petronio and Aniceto on the one hand, and Julius and Estanislao on the other, the
latter jointly and immediately stabbed Aniceto Hernandez. Petronio was not able to
do anything to aid his cousin to help him but in the process, Julius and Estanislao
turned against him ganged him (sic) and stabbed him, hitting him for the first time on
the left breast and the second on his right breast, both by Julius, the third one by
Estanislao hitting him on his left forearm, sustaining three wounds, two by Julius and
the third one by Estanislao on his left forearm.
Petronio showed in court when required the three scars, one on the left side about
four inches below the left nipple, one on the right breast about two inches from the
right nipple and another scar on the left forearm. After sustaining stab wounds, he
ran towards the municipal building which is about fifty to one hundred twenty-meter
distance from the crime scene near the bridge; that he recognized their assailants
because the place was bright as there was light coming from the electric post near
the place, but he did not fully Identify the weapon used, but it is a pointed weapon.
(Rollo, pp. 23-24)
The second prosecution witness, Rodolfo Carandang testified that:
xxxxxxxxx
...[O]n August 20, 1984 at about 10:15 5 in the evening, he was at the parking lot in
front of the municipal building of San Jose, Batangas waiting for available
passengers; that while he was waiting for available passengers, he saw a man
running and shouting 'pulis, pulls, tulungan ninyo ako,' he recognized this man to be
his Kuya Petting (Petronio Rosales), so he followed him up to the municipal building
where he noticed his Kuya Petting covered with blood and telling those people
around that he and Kuya Sito (Aniceto Hernandez) were stabbed by Estanislao
Batas and Julius Monta;ez He hurriedly boarded as tricycle and looked for his Kuya
Sito, who when found by him was lying prostrate near the road; that spectators
assisted him in lifting and placing inside his tricycle his Kuya Sito, whom he believed

already dead. When a jeep arrived, his Kuya Sito was transferred into that jeep and
was brought to the hospital; that he did not go to the hospital with his Kuya Sito,
instead, he went to their relatives and reported the incident. Before he parked his
tricycle in the parking lot in front of the San Jose Municipal building where he first
saw his Kuya Petting running, fall of blood and shouting for help, he came from
Palanca, San Jose, Batangas where he brought a passenger. On his way back from
Palanca going to said parking lot, he saw Estanislao and Julius by the bridge,
although the two peeped in his tricycle, but he was not stopped by them who were
then walking towards the west direction. The bridge is between the municipal building
and Toyet Restaurant. The municipal building is east of the bridge and the bridge is
east of Toyet Restaurant. (Rollo, pp. 24-25)
The third prosecution witness, Isidro Marquez, a Municipal Health Officer of San Jose, Batangas,
testified:
That he conducted a post mortem examination on the person of Aniceto Hernandez
on August 21, 1984; that in his post mortem findings (Exhibit "E") the deceased
sustained twenty one (21) wounds, with wounds No. 4 and No. 5 appearing as the
most fatal and marked as Exhibits "F-1 " and "F-2", respectively, in the anatomical
sketch, Exhibit "F". Except ' Wounds No. 1 and No. 2, the rest, including the most
fatal wounds, Wounds No. 4 and No. 5, were caused by sharp-edged and sharppointed instrument. Wounds No. 1 (lacerated) and No. 2 (abrasion) could have been
possibly caused either by blunt instrument or by falling to the ground. Wounds No. 6,
No. 7 and No. 8 could have been inflicted when assailant and the victim were facing
each other or the assailant was at the side of the victim (deceased). Wound No. 8
(superficial) could have been sustained while the victim (deceased) was parrying the
blow, while Wounds No. 3 and No. 20 were also superficial wounds that involve the
whole thickness of the skin (gasgas). Wound No. 21 at the back, 8 cm. depth or 2
inches (pasikwat) anterior and upward; that if stab wounds No. 4 and No. 5 were the
first inflicted on the victim, he could still run but not far and will possibly still live but
no longer than one hour. (Rollo, page 25)
lwph1.t

Both accused raise the following assignment of errors in this appeal, to wit:
I
THE TRIAL COURT ERRED IN FINDING THAT IN CRIMINAL CASE NO. 2160-3
FOR MURDER, THE EVIDENCE OF THE PROSECUTION IS CLEAR, ADEQUATE
AND CONVINCING THAT THE CRIME OF MURDER HAS BEEN COMMITTED BY
THE TWO ACCUSED AND COMMITTED THE SAME BY STABBING TO DEATH
ANICETO HERNANDEZ, WITH THE QUALIFYING CIRCUMSTANCE OF EVIDENT
PREMEDITATION AND WITH THE AGGRAVATING CIRCUMSTANCES OF
TREACHERY AND RECIDIVISM, AND FURTHER, COMMITTED THE SAME WITH
THE ELEMENT OF CONSPIRACY OR COMMON ACCORD BY AND BETWEEN
THE TWO ACCUSED.

II
THE TRIAL COURT ERRED IN FINDING THAT IN CRIMINAL CASE NO. 2168-3
FOR FRUSTRATED MURDER, THE CORRESPONDING EVIDENCE PRESENTED
BY THE PROSECUTION IS LIKEWISE CLEAR, ADEQUATE AND CONVINCING
THAT THE CRIME OF FRUSTRATED MURDER HAS BEEN COMMITTED BY THE
ACCUSED AND PERPETRATED THE SAME WITH INTENT TO KILL BY STABBING
PETRONIO ROSALES, WITH QUALIFYING CIRCUMSTANCE OF TREACHERY
AND RECIDIVISM AND, FURTHER, COMMITTED THE SAME WITH THE
ELEMENT OF CONSPIRACY BY THE TWO ACCUSED. (Rollo, pp. 60-61)
In the two assigned errors, the appellant questions the trial court's appreciation of the evidence
presented by the prosecution.
As the two assigned errors are interrelated, this Court will discuss them together.
There is no doubt that both the accused killed Hernandez and would have killed Rosales if not for
the timely medical attendance rendered to him. While admitting the stabbing, the two accused claim
self-defense.
This claim, however, must fail.
There are three requisites to prove the claim of self-defense as stated in paragraph 1 of Article II of
the Revised Penal Code, namely: (1) unlawful aggression; (2) reasonable necessity of the means
employed to prevent or repel it; and (3) lack of sufficient provocation on the part of the person
defending himself.
The accused testified that the victims were the unlawful aggressors. We agree with the trial court in
not giving credence to the testimonies of the accused as said testimonies are not only inherently
improbable but in conflict with each other. There is no showing of any injuries sustained by the
accused if indeed the victims were the aggressors. Thus, there is no self-defense to speak of as the
appellants failed to prove that there was unlawful aggression on the part of the victims. Furthermore,
the location, number and seriousness of the stab wounds inflicted on the victims belie the claim of
self-defense. Hernandez alone sustained twenty one (21) wounds. The fact that the accused did not
surrender themselves and the weapons they used to the police authorities whose office was just a
few meters away from the scene of the crime helps negate the claim of selfdefense.
As held in the case of Ebajan v. Court of Appeals, G.R. Nos. 77930-31, February 9, 1989:
A person who seeks justification for his act must prove by clear and convincing
evidence the presence of the necessary justice circumstance for having admitted
wounding or killing his adversary, and he is criminally liable unless he is able to
satisfy the court that he acted in legitimate, self-defense.'
In the case at bar, the accused did not present clear and convincing evidence for the court to sustain
the claim of selfdefense. The trial court was convinced that one of the victims, Petronio Rosales, was

telling the truth when he testified on the circumstances of the assault on him and his cousin. We see
no reason from the records why we should reverse this finding. We agree with the trial court that
there was conspiracy. The evidence presented by the prosecution clearly indicates that the acts and
behavior of the accused reveal their common purpose to assault and inflict harm upon the deceased
and that there was a concerted execution of that common purpose. (People v. Bacho G.R. No.
66645, March 29, 1989) The existence of a concerted effort by the accused can be further inferred
from the fact that both accused were together when provoked at the restaurant, were still together
when they met the victims and without any word, jointly and immediately stabbed the deceased
Hernandez and then turned against Rosales and simultaneously ganged-up on him and stabbed
him. The trial court stated:
If the statements in court by accused Estanislao Batas is true that he alone and no
other person participated in stabbing the deceased except he, and that accused
Julius Montanez was also alone in stabbing Petronio Rosales, why is it that
deceased Aniceto Hernandez suffered twenty-one (21) wounds, of which 13 were
stab wounds and 8 were hack wounds? From the very nature and appearance of
said wounds (Exhibit F there could be no better conclusion for the court to give,
except that the 21 wounds were inflicted by at least two persons with two kinds of
weapons. (Rollo, p. 36)
This Court, then, does not see any reason to disturb the factual findings of the trial court. In Navarro
v. Court of Appeals, (G.R. No. 84423, January 31, 1989) this Court stated that:
While it is true that it is the presence of the concurrence of minds which is involved in
conspiracy, the conspiracy may be inferred from proof of facts and circumstances.
Likewise, we agree with the trial court's finding that there was treachery. In the case of People v.
Gimongala, G.R. Nos. 62968-69, February 27, 1989:
We sustain the finding of treachery against them as it is clear that they had adopted
means and methods to insure the commission Of the offenses without risk to
themselves from any defense their unwary victims might make. It bears stressing that
their victims were totally unprepared for their sudden attack and also without
weapons to resist it.
In the case at bar, the assault and the stabbing were done in a sudden manner on the unarmed and
defenseless victims.
Regarding the trial court finding that there was evident premeditation, this Court finds that the
prosecution failed to show clear and convincing proof relative to (1) the time when the appellant
determined to commit the crime; (2) an act manifestly indicating that the two clung to that
determination; and (3) sufficient lapse of time between determination and execution to allow them to
reflect upon the consequences of their act (People v. Almario, G. R. No. 69374, March 16,1989) as
to indicate that evident premeditation attended the killing of Hernandez. The trial court ruled that the
quailing circumstance of evident premeditation was present because the anger or ill-will of the two
accused started when they were still at the Toyet's Restaurant; that both accused made their final

determination to execute their criminal intent, as they did, after the lapse of more than half an hour
since the ill-feeling started at said restaurant and the time they actually performed their criminal acts.
(Rollo, p. 32) We find inadequate basis for this conclusion. As stated in the case of People v.
Garachico, (133 SCRA 131):
To authorize the finding of evident premeditation, it must appear not only that the
accused had made a decision to commit the crime prior to the moment of its
execution but that this decision was the result of meditation, calculation or reflection
or persistent attempt. In the case at bar, the lapse of thirty minutes between the
determination and execution of the crime is not sufficient time for the accused to
reflect upon the consequences of their act.
We apply the Garachico case as controlling as the elapsed time was more or less thirty minutes. The
prosecution evidence shows that the victims stayed at the restaurant fifteen to twenty minutes more
after the accused left and thereafter met the accused.
The crimes are still murder and frustrated murder with treachery considered as the qualifying
circumstance, recidivism as a generic aggravating circumstance and with no mitigating circumstance
to offset the same.
WHEREFORE, the guilt of the accused having been proved beyond reasonable doubt, the appealed
decision is hereby AFFIRMED.
http://www.lawphil.net/judjuris/juri1989/aug1989/gr_84277_1989.html

G.R. No. 88724 April 3, 1990

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
CEILITO ORITA alias "Lito," defendant-appellant.
The Office of the Solicitor General for plaintiff-appellee.
C. Manalo for defendant-appellant.

MEDIALDEA, J.:
The accused, Ceilito Orita alias Lito, was charged with the crime of rape in Criminal Case No. 83031-B before the Regional Trial Court, Branch II, Borongan, Eastern Samar. The information filed in
the said case reads as follows (p. 47, Rollo):

The undersigned Second Assistant Provincial Fiscal upon prior complaint under oath
by the offended party, accuses CEILITO ORITA alias LITO of the crime of Rape
committed as follows:
That on March 20, 1983, at about 1:30 o'clock in the morning inside a boarding
house at Victoria St., Poblacion, Borongan, Eastern Samar, Philippines, and within
the jurisdiction of this Honorable Court, above named accused with lewd designs and
by the use of a Batangas knife he conveniently provided himself for the purpose and
with threats and intimidation, did, then and there wilfully, unlawfully and feloniously
lay with and succeeded in having sexual intercourse with Cristina S. Abayan against
her will and without her consent.
CONTRARY TO LAW.
Upon being arraigned, the accused entered the plea of not guilty to the offense charged. After the
witnesses for the People testified and the exhibits were formally offered and admitted, the
prosecution rested its case. Thereafter, the defense opted not to present any exculpatory evidence
and instead filed a Motion to Dismiss. On August 5, 1985, the trial court rendered its decision, the
dispositive portion of which reads (pp. 59-60, Rollo):
WHEREFORE. the Court being morally certain of the guilt of accused CEILITO
ORITA @ LITO, of the crime of Frustrated Rape (Art. 335, RPC), beyond reasonable
doubt, with the aggravating circumstances of dwelling and nightime (sic) with no
mitigating circumstance to offset the same, and considering the provisions of the
Indeterminate Sentence Law, imposes on accused an imprisonment of TEN (10)
YEARS and ONE (1) DAY, PRISION MAYOR, as minimum to TWELVE (12)
YEARSPRISION MAYOR, maximum; to indemnify CRISTINA S. ABAYAN, the
amount of Four Thousand (P4,000.00) Pesos, without subsidiary imprisonment in
case of insolvency, and to pay costs.
SO ORDERED.
Not satisfied with the decision, the accused appealed to the Court of Appeals. On December 29,
1988, the Court of Appeals rendered its decision, the dispositive portion of which reads (p.
102, Rollo):
WHEREFORE, the trial court's judgment is hereby MODIFIED, and the appellant
found guilty of the crime of rape, and consequently, sentenced to suffer imprisonment
of reclusion perpetua and to indemnify the victim in the amount of P30,000.00.
SO ORDERED.
On January 11, 1989, the Court of Appeals issued a resolution setting aside its December 29, 1988
decision and forwarded the case to this Court, considering the provision of Section 9, paragraph 3 of
Batas Pambansa Blg. 129 in conjunction with Section 17, paragraph 3, subparagraph 1 of the
Judiciary Act of 1948.

The antecedent facts as summarized in the People's brief are as follows (pp. 71-75, Rollo):
Complainant Cristina S. Abayan was a 19-year old freshman student at the St.
Joseph's College at Borongan, Eastern Samar. Appellant was a Philippine
Constabulary (PC) soldier.
In the early morning of March 20, 1983, complainant arrived at her boarding house.
Her classmates had just brought her home from a party (p. 44, tsn, May 23, 1984).
Shortly after her classmates had left, she knocked at the door of her boarding house
(p. 5, ibid). All of a sudden, somebody held her and poked a knife to her neck. She
then recognized appellant who was a frequent visitor of another boarder (pp. 89, ibid).
She pleaded with him to release her, but he ordered her to go upstairs with him.
Since the door which led to the first floor was locked from the inside, appellant forced
complainant to use the back door leading to the second floor (p. 77, ibid). With his
left arm wrapped around her neck and his right hand poking a "balisong" to her neck,
appellant dragged complainant up the stairs (p. 14, ibid). When they reached the
second floor, he commanded her to look for a room. With the Batangas knife still
poked to her neck, they entered complainant's room.
Upon entering the room, appellant pushed complainant who hit her head on the wall.
With one hand holding the knife, appellant undressed himself. He then ordered
complainant to take off her clothes. Scared, she took off her T-shirt. Then he pulled
off her bra, pants and panty (p. 20, ibid).
He ordered her to lie down on the floor and then mounted her. He made her hold his
penis and insert it in her vagina. She followed his order as he continued to poke the
knife to her. At said position, however, appellant could not fully penetrate her. Only a
portion of his penis entered her as she kept on moving (p. 23, ibid).
Appellant then lay down on his back and commanded her to mount him. In this
position, only a small part again of his penis was inserted into her vagina. At this
stage, appellant had both his hands flat on the floor. Complainant thought of
escaping (p. 20, ibid).
She dashed out to the next room and locked herself in. Appellant pursued her and
climbed the partition. When she saw him inside the room, she ran to another room.
Appellant again chased her. She fled to another room and jumped out through a
window (p. 27, ibid).
Still naked, she darted to the municipal building, which was about eighteen meters in
front of the boarding house, and knocked on the door. When there was no answer,
she ran around the building and knocked on the back door. When the policemen who
were inside the building opened the door, they found complainant naked sitting on
the stairs crying. Pat. Donceras, the first policeman to see her, took off his jacket and

wrapped it around her. When they discovered what happened, Pat. Donceras and
two other policemen rushed to the boarding house. They heard a sound at the
second floor and saw somebody running away. Due to darkness, they failed to
apprehend appellant.
Meanwhile, the policemen brought complainant to the Eastern Samar Provincial
Hospital where she was physically examined.
Dr. Ma. Luisa Abude, the resident physician who examined complainant, issued a
Medical Certificate (Exhibit "A") which states:
Physical Examination Patient is fairly built, came in with loose
clothing with no under-clothes; appears in state of shock, per
unambulatory.
PE Findings Pertinent Findings only.
Neck- Circumscribed hematoma at Ant. neck.
Breast Well developed, conical in shape with prominent nipples;
linear abrasions below (L) breast.
Back Multiple pinpoint marks.
Extremities Abrasions at (R) and (L) knees.
Vulva No visible abrasions or marks at the perineal area or over
the vulva,errythematous (sic) areas noted surrounding vaginal orifice,
tender, hymen intact; no laceration fresh and old noted; examining
finger can barely enter and with difficulty; vaginal canal tight; no
discharges noted.
As aforementioned, the trial court convicted the accused of frustrated rape.
In this appeal, the accused assigns the following errors:
1) The trial court erred in disregarding the substantial inconsistencies in the testimonies of the
witnesses; and
2) The trial court erred in declaring that the crime of frustrated rape was committed by the accused.
The accused assails the testimonies of the victim and Pat. Donceras because they "show
remarkable and vital inconsistencies and its incredibility amounting to fabrication and therefore
casted doubt to its candor, truth and validity." (p. 33, Rollo)

A close scrutiny of the alleged inconsistencies revealed that they refer to trivial inconsistencies which
are not sufficient to blur or cast doubt on the witnesses' straightforward attestations. Far from being
badges of fabrication, the inconsistencies in their testimonies may in fact be justifiably considered as
manifestations of truthfulness on material points. These little deviations also confirm that the
witnesses had not been rehearsed. The most candid witnesses may make mistakes sometimes but
such honest lapses do not necessarily impair their intrinsic credibility (People v. Cabato, G.R. No. L37400, April 15, 1988, 160 SCRA 98). Rather than discredit the testimonies of the prosecution
witnesses, discrepancies on minor details must be viewed as adding credence and veracity to such
spontaneous testimonies (Aportadera et al. v. Court of Appeals, et al., G.R. No. L-41358, March 16,
1988, 158 SCRA 695). As a matter of fact, complete uniformity in details would be a strong indication
of untruthfulness and lack of spontaneity (People v. Bazar, G.R. No. L-41829, June 27, 1988, 162
SCRA 609). However, one of the alleged inconsistencies deserves a little discussion which is, the
testimony of the victim that the accused asked her to hold and guide his penis in order to have
carnal knowledge of her. According to the accused, this is strange because "this is the only case
where an aggressor's advances is being helped-out by the victim in order that there will be a
consumation of the act." (p. 34, Rollo). The allegation would have been meritorious had the
testimony of the victim ended there. The victim testified further that the accused was holding a
Batangas knife during the aggression. This is a material part of the victim's testimony which the
accused conveniently deleted.
We find no cogent reason to depart from the well-settled rule that the findings of fact of the trial court
on the credibility of witnesses should be accorded the highest respect because it has the advantage
of observing the demeanor of witnesses and can discern if a witness is telling the truth (People v.
Samson, G.R. No. 55520, August 25, 1989). We quote with favor the trial court's finding regarding
the testimony of the victim (p 56, Rollo):
As correctly pointed out in the memorandum for the People, there is not much to be
desired as to the sincerity of the offended party in her testimony before the court. Her
answer to every question profounded (sic), under all circumstances, are plain and
straightforward. To the Court she was a picture of supplication hungry and thirsty for
the immediate vindication of the affront to her honor. It is inculcated into the mind of
the Court that the accused had wronged her; had traversed illegally her honor.
When a woman testifies that she has been raped, she says in effect all that is necessary to show
that rape was committed provided her testimony is clear and free from contradiction and her sincerity
and candor, free from suspicion (People v Alfonso, G.R. No. 72573, August 31, 1987, 153 SCRA
487; People v. Alcid, G.R. Nos. 66387-88, February 28, 1985, 135 SCRA 280; People v. Soterol G.R.
No. 53498, December 16, 1985, 140 SCRA 400). The victim in this case did not only state that she
was raped but she testified convincingly on how the rape was committed. The victim's testimony
from the time she knocked on the door of the municipal building up to the time she was brought to
the hospital was corroborated by Pat. Donceras. Interpreting the findings as indicated in the medical
certificate, Dr. Reinerio Zamora (who was presented in view of the unavailability of Dr. Abude)
declared that the abrasions in the left and right knees, linear abrasions below the left breast, multiple
pinpoint marks, circumscribed hematoma at the anterior neck, erythematous area surrounding the
vaginal orifice and tender vulva, are conclusive proof of struggle against force and violence exerted
on the victim (pp. 52-53, Rollo). The trial court even inspected the boarding house and was fully

satisfied that the narration of the scene of the incident and the conditions therein is true (p.
54, Rollo):
. . . The staircase leading to the first floor is in such a condition safe enough to carry
the weight of both accused and offended party without the slightest difficulty, even in
the manner as narrated. The partitions of every room were of strong materials,
securedly nailed, and would not give way even by hastily scaling the same.
A little insight into human nature is of utmost value in judging rape complaints (People v. Torio, et al.,
G.R. No. L-48731, December 21, 1983, 126 SCRA 265). Thus, the trial court added (p. 55, Rollo):
. . . And the jump executed by the offended party from that balcony (opening) to the
ground which was correctly estimated to be less than eight (8) meters, will perhaps
occasion no injury to a frightened individual being pursued. Common experience will
tell us that in occasion of conflagration especially occuring (sic) in high buildings,
many have been saved by jumping from some considerable heights without being
injured. How much more for a frightened barrio girl, like the offended party to whom
honor appears to be more valuable than her life or limbs? Besides, the exposure of
her private parts when she sought assistance from authorities, as corroborated, is
enough indication that something not ordinary happened to her unless she is
mentally deranged. Sadly, nothing was adduced to show that she was out of her
mind.
In a similar case (People v. Sambili G.R. No. L-44408, September 30, 1982, 117 SCRA 312), We
ruled that:
What particularly imprints the badge of truth on her story is her having been rendered
entirely naked by appellant and that even in her nudity, she had to run away from the
latter and managed to gain sanctuary in a house owned by spouses hardly known to
her. All these acts she would not have done nor would these facts have occurred
unless she was sexually assaulted in the manner she narrated.
The accused questions also the failure of the prosecution to present other witnesses to corroborate
the allegations in the complaint and the non-presentation of the medico-legal officer who actually
examined the victim. Suffice it to say that it is up to the prosecution to determine who should be
presented as witnesses on the basis of its own assessment of their necessity (Tugbang v. Court of
Appeals, et al., G.R. No. 56679, June 29, 1989; People v. Somera, G.R. No. 65589, May 31, 1989).
As for the non-presentation of the medico-legal officer who actually examined the victim, the trial
court stated that it was by agreement of the parties that another physician testified inasmuch as the
medico-legal officer was no longer available. The accused did not bother to contradict this statement.
Summing up, the arguments raised by the accused as regards the first assignment of error fall flat
on its face. Some were not even substantiated and do not, therefore, merit consideration. We are
convinced that the accused is guilty of rape. However, We believe the subject matter that really calls
for discussion, is whether or not the accused's conviction for frustrated rape is proper. The trial court

was of the belief that there is no conclusive evidence of penetration of the genital organ of the victim
and thus convicted the accused of frustrated rape only.
The accused contends that there is no crime of frustrated rape. The Solicitor General shares the
same view.
Article 335 of the Revised Penal Code defines and enumerates the elements of the crime of rape:
Art. 335. When and how rape is committed. Rape is committed by having carnal
knowledge of a woman under any of the following circumstances:
1. By using force or intimidation;
2. When the woman is deprived of reason or otherwise unconscious and
3. When the woman is under twelve years of age, even though neither of the
circumstances mentioned in the two next preceding paragraphs shall be present.
xxx xxx xxx
Carnal knowledge is defined as the act of a man in having sexual bodily connections with a woman
(Black's Law Dictionary. Fifth Edition, p. 193).
On the other hand, Article 6 of the same Code provides:
Art. 6. Consummated, frustrated, and attempted felonies. Consummated felonies
as well as those which are frustrated and attempted, are punishable.
A felony is consummated when all the elements necessary for its execution and
accomplishment are present; and it is frustrated when the offender performs all the
acts of execution which would produce the felony as a consequence but which,
nevertheless, do not produce it by reason of causes independent of the will of the
perpetrator.
There is an attempt when the offender commences the commission of a felony
directly by overt acts, and does not perform all the acts of execution which should
produce the felony by reason of some cause or accident other than his own
spontaneous desistance.
Correlating these two provisions, there is no debate that the attempted and consummated stages
apply to the crime of rape. Our concern now is whether or not the frustrated stage applies to the
crime of rape.
The requisites of a frustrated felony are: (1) that the offender has performed all the acts of execution
which would produce the felony and (2) that the felony is not produced due to causes independent of
the perpetrator's will. In the leading case of United States v. Eduave, 36 Phil. 209, 212, Justice

Moreland set a distinction between attempted and frustrated felonies which is readily understood
even by law students:
. . . A crime cannot be held to be attempted unless the offender, after beginning the
commission of the crime by overt acts, is prevented, against his will, by some outside
cause from performing all of the acts which should produce the crime. In other words,
to be an attempted crime the purpose of the offender must be thwarted by a foreign
force or agency which intervenes and compels him to stop prior to the moment when
he has performed all of the acts which should produce the crime as a consequence,
which acts it is his intention to perform. If he has performed all of the acts which
should result in the consummation of the crime and voluntarily desists from
proceeding further, it can not be an attempt. The essential element which
distinguishes attempted from frustrated felony is that, in the latter, there is no
intervention of a foreign or extraneous cause or agency between the beginning of the
commission of the crime and the moment when all of the acts have been performed
which should result in the consummated crime; while in the former there is such
intervention and the offender does not arrive at the point of performing all of the acts
which should produce the crime. He is stopped short of that point by some cause
apart from his voluntary desistance.
Clearly, in the crime of rape, from the moment the offender has carnal knowledge of his victim he
actually attains his purpose and, from that moment also all the essential elements of the offense
have been accomplished.Nothing more is left to be done by the offender, because he has performed
the last act necessary to produce the crime. Thus, the felony is consummated. In a long line of cases
(People v. Oscar, 48 Phil. 527; People v. Hernandez, 49 Phil. 980; People v. Royeras, G.R. No. L31886, April 29, 1974, 56 SCRA 666; People v. Amores, G.R. No. L-32996, August 21, 1974, 58
SCRA 505), We have set the uniform rule that for the consummation of rape, perfect penetration is
not essential. Any penetration of the female organ by the male organ is sufficient. Entry of the labia
or lips of the female organ, without rupture of the hymen or laceration of the vagina is sufficient to
warrant conviction. Necessarily, rape is attempted if there is no penetration of the female
organ (People v. Tayaba, 62 Phil. 559 People v. Rabadan et al., 53 Phil. 694; United States v.
Garcia: 9 Phil. 434) because not all acts of execution was performed. The offender merely
commenced the commission of a felony directly by overt acts. Taking into account the nature,
elements and manner of execution of the crime of rape and jurisprudence on the matter, it is hardly
conceivable how the frustrated stage in rape can ever be committed.
Of course, We are aware of our earlier pronouncement in the case of People v. Eria 50 Phil. 998
[1927] where We found the offender guilty of frustrated rape there being no conclusive evidence of
penetration of the genital organ of the offended party. However, it appears that this is a "stray"
decision inasmuch as it has not been reiterated in Our subsequent decisions. Likewise, We are
aware of Article 335 of the Revised Penal Code, as amended by Republic Act No. 2632 (dated
September 12, 1960) and Republic Act No. 4111 (dated March 29, 1965) which provides, in its
penultimate paragraph, for the penalty of death when the rape is attempted orfrustrated and a
homicide is committed by reason or on the occasion thereof. We are of the opinion that this
particular provision on frustrated rape is a dead provision. The Eria case, supra, might have

prompted the law-making body to include the crime of frustrated rape in the amendments introduced
by said laws.
In concluding that there is no conclusive evidence of penetration of the genital organ of the victim,
the trial court relied on the testimony of Dr. Zamora when he "categorically declared that the findings
in the vulva does not give a concrete disclosure of penetration. As a matter of fact, he tossed back to
the offended party the answer as to whether or not there actually was penetration." (p. 53, Rollo)
Furthermore, the trial court stated (p. 57, Rollo):
. . . It cannot be insensible to the findings in the medical certificate (Exhibit "A") as
interpreted by Dr. Reinerio Zamora and the equivocal declaration of the latter of
uncertainty whether there was penetration or not. It is true, and the Court is not
oblivious, that conviction for rape could proceed from the uncorroborated testimony
of the offended party and that a medical certificate is not necessary (People v.
Royeras People v. Orteza, 6 SCRA 109, 113). But the citations the people relied
upon cannot be applicable to the instant case. The testimony of the offended party is
at variance with the medical certificate. As such, a very disturbing doubt has surfaced
in the mind of the court. It should be stressed that in cases of rape where there is a
positive testimony and a medical certificate, both should in all respect, compliment
each other, for otherwise to rely on the testimony alone in utter disregard of the
manifest variance in the medical certificate, would be productive of mischievous
results.
The alleged variance between the testimony of the victim and the medical certificate does not exist.
On the contrary, it is stated in the medical certificate that the vulva was erythematous (which means
marked by abnormal redness of the skin due to capillary congestion, as in inflammation) and tender.
It bears emphasis that Dr. Zamoradid not rule out penetration of the genital organ of the victim. He
merely testified that there was uncertainty whether or not there was penetration. Anent this
testimony, the victim positively testified that there was penetration, even if only partially (pp. 302,
304, t.s.n., May 23, 1984):
Q Was the penis inserted on your vagina?
A It entered but only a portion of it.
xxx xxx xxx
Q What do you mean when you said comply, or what act do you
referred (sic) to, when you said comply?
A I inserted his penis into my vagina.
Q And was it inserted?
A Yes only a little.

The fact is that in a prosecution for rape, the accused may be convicted even on the sole basis of
the victim's testimony if credible (People v. Tabago, G.R. No. 69778, November 8, 1988, 167 SCRA
65; People v. Aragona, G.R. No. L-43752, September 19, 1985, 138 SCRA 569; People v. Taduyo,
G.R. Nos. L-37928-29, September 29, 1987, 154 SCRA 349). Moreover, Dr. Zamora's testimony is
merely corroborative and is not an indispensable element in the prosecution of this case (People v.
Alfonso, supra).
Although the second assignment of error is meritorious, it will not tilt the scale in favor of the accused
because after a thorough review of the records, We find the evidence sufficient to prove his guilt
beyond reasonable doubt of the crime of consummated rape.
Article 335, paragraph 3, of the Revised Penal Code provides that whenever the crime of rape is
committed with the use of a deadly weapon, the penalty shall be reclusion perpetua to death. The
trial court appreciated the aggravating circumstances of dwelling and nighttime. Thus, the proper
imposable penalty is death. In view, however, of Article 111, Section 19(1) of the 1987 Constitution
and Our ruling in People v. Millora, et al., G.R. Nos. L-38968-70, February 9, 1989, that the cited
Constitutional provision did not declare the abolition of the death penalty but merely prohibits the
imposition of the death penalty, the Court has since February 2, 1987 not imposed the death penalty
whenever it was called for under the Revised Penal Code but instead reduced the same to reclusion
perpetua (People v. Solis, et al., G.R. Nos. 78732-33, February 14, 1990). Reclusion perpetua, being
a single indivisible penalty under Article 335, paragraph 3, is imposed regardless of any mitigating or
aggravating circumstances (in relation to Article 63, paragraph 1, Revised Penal Code; see People v.
Arizala, G.R. No. 59713, March 15, 1982, 112 SCRA 615; People v. Manzano, G.R. No. L38449,
November 25, 1982, 118 SCRA 705; People v. Ramirez, G.R. No. 70744, May 31, 1985, 136 SCRA
702).
ACCORDINGLY, the decision of the Regional Trial Court is hereby MODIFIED. The accused Ceilito
Orita is hereby found guilty beyond reasonable doubt of the crime of rape and sentenced
to reclusion perpetua as well as to indemnify the victim in the amount of P30,000.00.
SO ORDERED.
Narvasa, Cruz, Gancayco and Grio-Aquino, JJ., concur.

http://www.lawphil.net/judjuris/juri1990/apr1990/gr_88724_1990.html

G.R. No. L-66257 June 20, 1989

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
FELICISIMA BASILAN Y ABU defendant-appellant.
The Solicitor General for plaintiff-appellee.
Pedro F. Martinez for defendant-appellant.

GANCAYCO, J.:
On March 15,1984 at about 5:30 o'clock in the morning Rafael Abarico was walking by the Alpha
Grocery store along San Juan Street in Calapan, Oriental Mindoro when he overheard the loud voice
of a woman within the store saying, "Pag hindi mo ibinigay ang hinihingi namin sa iyo ay papatayin
ka namin." Abarico stopped and peeped into the store through a slit in the steel accordion door and
saw two men holding the Chinese store owner, Lim Wan, by the arms. Felicisima Basilan stood in
front of Lim Wan pointing a finger at him while he was shaking his head. Thereafter, one of the two
men released Lim Wan's arm and stabbed the Chinaman on the back.

Alarmed by what he saw, Abarico ran across the street. A few moments later, he saw two men
emerge from the store and run in the direction of the back of the vice-governor's house. Felicisima
Basilan then came out closing the door behind her and hurriedly proceeded in the direction of the
public market. In her haste, she slipped and fell on the road. However, she recovered and proceeded
on her way towards the market. Because Abarico had to see his sister in Calauang, he boarded a
passenger jeep and did not stay to report what he saw.
Lim Wan's body was found on that same morning. The drawer of his desk was pulled out and some
small change lay scattered about the floor. Ubaldo Pimentel, the business partner of Lim Wan, found
out later that some Five Hundred Pesos left with Lim Wan the night before for settling an obligation
were gone. Abarico later told the authorities what he saw.
The municipal health officer of Calapan who conducted an autopsy of the victim's body found three
penetration stab wounds on the victim's chest and one stab wound on the back that did not quite
penetrate the body because the weapon was blocked by a bone of the spinal column. Internal
hemorrhage resulted in the death of the victim.1
In due course, the provincial fiscal of Mindoro filed an information charging Felicisima
Basilan y Abu, John Doe and Peter Doe of the crime of Robbery with Homicide
allegedly committed as follows:
That on or about the 15th day of March, 1981, at around 5:30 o'clock in the morning,
in the Poblacion (San Vicente), municipality of Calapan, Province of Oriental
Mindoro, Philippines and within the jurisdiction of tills Honorable Court, the above
named accused, with intent of gain, conspiring, confederating and mutually helping
one another, thru and with the use of violence against or intimidation of person, that
was, after having ganged-up and stabbed one Lim Wan, a Chinese business man
resulting in his sudden and unexpected demise, did then and there wilfully, unlawfully
and feloniously take, steal and carry away cash money in the amount of FIVE
HUNDRED ( P 500.00 ) PESOS, Philippine Currency, belonging to and owned by the
same business man to the damage and prejudice of the latter's heirs.
That in the commission of the crime the aggravating circumstances of nighttime and dwelling were
present.
Contrary to Article 294 of the Revised Penal Code. 2
Only the accused Felicisima Basilan submitted to the jurisdiction of the court while the two other
accused remained at large. Upon arraignment, she entered a plea of not guilty and thereafter the
trial on the merits proceeded.
On May 19, 1983, after the trial on the merits, the trial court rendered a decision convicting the
accused of the offense charged, imposing on her the penalty of reclusion perpetua, to indemnify the
lawful heirs of the deceased Lim Wan in the amount of TWELVE THOUSAND PESOS ( P
l2,000.00 ), in addition, to pay said heirs the amount of FIFTY ONE THOUSAND NINE' HUNDRED
TWENTY PESOS ( P 51,920.00 ), as actual and compensatory damages and to pay the costs. It
was further directed in the same decision that the law enforcing agencies should exert efforts to
locate the two unidentified accused so that they may be held accountable for their acts.
Not satisfied therewith, the accused brought this appeal on certiorari alleging that the trial court
committed the following assigned errors:

I. THE TRIAL COURT GRAVELY ERRED IN NOT ACQUITTING HEREIN

APPELLANT ON THE GROUND OF INSUFFICIENCY OF EVIDENCE.
II. THE TESTIMONIES OF ALLEGED EYEWITNESS RAFAEL ABARICO AND
WITNESS UBALDO PIMENTEL ARE FULL OF INCONSISTENCIES,
CONTRADICTIONS, AND THEREFORE UNRELIABLE AND INCREDIBLE. HENCE
THE TRIAL COURT GRAVELY ERRED IN CONVICTING HEREIN APPELLANT, ON
THE BASIS OF SUCH TESTIMONIES,
III. THE TRIAL COURT GRAVELY ERRED IN CONVICTING HEREIN APPELLANT
WITH THE CRIME OF MURDER WHICH IS DIFFERENT AND DISTINCT FROM
THE CRIME OF ROBBERY WITH HOMICIDE, THE CRIME CHARGED IN THE
INFORMATION. 3
The first and second assigned errors are without merit. The testimony of Rafael Abarico is
corroborated in certain points by other evidence. His statement that he saw the victim as
he was stabbed at the back is corroborated by the necropsy reports prepared by Dr.
Carlos Adeva after an examination of the body of the victim Lim Wan, which reads in part,
thus: 4
POST MORTEM FINDINGS:

THORAX:
1. xxxxx
2. xxxxx
3. xxxxx
BACK:
4. Stab wound-1 1/2 inches long, 2 inches deep, directed supero-medially, 1 cm from
the midline, left, level of the superior border of the scapular bone.
CAUSE OF DEATH: ... 5
Appellant maintains that it is improbable for Abarico to have been at or near the Alpha Grocery at the
time of the commission of the crime since the holy mass began at 5:30 o'clock in the morning and it
lasted for about an hour and that "it would be unchristian-like for catholic Abarico, to short-change
his obligation on God" 6 by leaving for Calauang before the mass is completed. Abarico testified,
however, that he felt compelled to leave church early because his sister expected him at Calauang.
Appellant then suggests that there is a possibility that the angry words that Abarico heard may have
been uttered by another woman, i.e. a certain Anita Abas who, according to defense witness Morita
De la Cruz also resides in the Alpha Grocery. However, the records show that Morita De la Cruz
resides in Tondo, Manila and that she never stayed in Calapan. Furthermore, the testimony of Morita
cannot prevail over that of Ubaldo Pimentel, a co-owner of the Alpha Grocery, who would have
known if there was indeed another occupant therein besides Lim Wan. In fact, appellant herself
asserted that she did not see any other woman at the time she was in the store. This fact was also
confirmed by Abarico during the trial.

To further discredit the testimony of Abarico, the appellant calls the attention of the court to the fact
that his testimony is full of coincidences such that he happened to pass in front of the store when the
slaying occurred and later on, he happened to overhear two policemen discussing the results of the
investigation when he decided to report what he had witnessed. Appellant argues that it is hard to
believe that a witness would just' be, at the proper places at those times.
This contention is bereft of merit. The two events mentioned by the appellant occurred a month apart
and should not be taken together. What is clear is that Abarico was an eyewitness to the commission
of the crime and that when he learned that the crime had not been solved for some time, he
volunteered the information.
Appellant maintains that the shaking of the head of Lim Wan at the time he was confronted by the
three accused including appellant herein, manifests a willingness on his part to give what his
assailants were demanding from him. Hence, according to appellant, the charge of robbery with
homicide can not prosper since it is unlikely that the victim would be stabbed after he agreed to yield
to their demands.
This argument is untenable. Common experience shows that one nods his head in agreement and
shakes his head as a sign of refusal. The argument of the appellant runs counter to human
experience.
Thus, the court finds no reason to disregard the testimony of Abarico as proposed by appellant even
if he is the sole eyewitness. Well established is the rule that the testimony of only one witness, if
credible and positive, is sufficient to convict. 7 The trial court characterized Abarico as a "fine young boy,
intelligent and very humble in person." 8His testimony is positive as he affirmed that the crime was indeed
committed. Furthermore, there appears no underlying motive for Abarico to concoct such a story. It is a
basic principle in the law on evidence that in the absence of improper motive to testify against the
accused, the testimony of such a witness must be given full faith and credence.
The delay in reporting what he had seen to the police authorities is quite understandable for a young
boy of 16 years. He naturally feared for his own life and did not want his name dragged into a
criminal investigation especially since he is aware of what the malefactors are capable of doing. This
is consistent with the ruling of this Court in People v. Catao 9 wherein it was held that "delay of a
witness in revealing to the authorities what he knows about a crime does not render his testimony false,
for the delay may be explained by the natural reticence of most people and their abhorrence to get
involved in a criminal case. But more than this, there is always the inherent fear of reprisal, which is quite
understandable especially if the accused is a man of power and influence in the community." 10
In contrast, it is the testimony of the appellant which is not credible. She alleged that she did not
hear anything unusual while she was inside the toilet since the same is about 10 meters away from
the place where Lim Wan was killed. An ocular inspection of the crime scene showed that the
distance between the toilet and the table of Lim Wan is 4 meters only. After the incident, appellant
stated she lost her nerve and ran hastily to the public market. And yet she first collected her things-a
bag and thermos bottle. She even changed her clothing before informing the shops next door about
the slaying. This is unnatural of a woman in distress. Her actions in fact betray her complicity in the
crime.
The Court affirms the findings of the trial court that there was indeed conspiracy between the
accused Felicisima Basilan and the two other malefactors. The fact that the appellant uttered the
treacherous remark that the victim would be killed if he did not comply with their demands while her
two unidentified companions held him on both sides; that the threat she made was accomplished

when her two companions stabbed the victim; and thereafter, the three (3) fled from the scene of the
crime; all these demonstrate a concerted effort to commit the offense charged.
Having established the existence of a conspiracy, the trial court committed no error when it held the
accused responsible for the killing of the victim Lim Wan. Although no person could positively say
that he saw the appellant inflict a stab wound on the victim herself, conspiracy having been
established, the act of one is deemed the act of all.
With respect to the third assignment of error, this Court agrees with the appellant that the information
does not alleged any qualifying circumstance that would justify a conviction for murder. The
information decribes the offense of robbery with homicide. Although there was evidence of such
aggravating circumstances that may qualify the crime of homicide to murder, the appellant cannot
accordingly be convicted for murder without transgressing the constitutional injunction that an
accused should be informed of the nature and cause of the accusation against him. 11 However, the
evidence supports a conviction for attempted robbery with homicide. When the accused uttered the words
"Pag hindi mo ibinigay ang hinihingi namin sa iyo ay papatayin ka namin," it clearly appears that appellant
and her companions had the intention of robbing the victim and were bent on resorting to violent means to
attain their devious ends. It could have been the P 500.00 which Ubaldo Pimentel left with the victim the
previous night, or some other valuables, or perhaps, even some merchandise. Since there is no proof or
reasonable certainty that anything was successfully taken from the deceased, the appellant should be
convicted only of attempted robbery with homicide penalized under Article 297 of the Revised Penal
Code. The threat she made is sufficient to establish her attempt to rob the victim.
In People vs.Carunungan, 12 this Court found the accused guilty of attempted robbery with homicide
when the accused demanded that the occupants of the house bring out their money, an overt act which
would lead to the commission of the robbery.
WHEREFORE, premises considered, the decision appealed from is hereby modified in that the
appellant is found guilty of the crime of attempted robbery with homicide and he is thereby imposed
the indeterminate penalty of imprisonment of twelve (12) years and one (1) day of reclusion temporal
as minimum, to twenty (20) years, also of reclusion temporal as maximum, and the indemnity to the
heirs of the deceased is increased to P 30,000.00, with costs against appellant. The decision is
AFFIRMED in all other respects. No costs.
SO ORDERED.
Narvasa, Cruz, Grio-Aquino and Medialdea, JJ. concur.

http://www.lawphil.net/judjuris/juri1989/jun1989/gr_l66257_1989.html

G.R. No. L-39367-69 February 28, 1979

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
REMIGIO CONCHADA Y ASTRERA accused-appellant.
Roman R. Mendioro for appellant.
Acting Solicitor General Hugo E. Gutierrez, Jr., Assistant Solicitor General Guillermo C. Nakar, Jr.
and Solicitor Ma. Rosario Quetulio-Losa for appellee.

FERNANDO, J.:
The law and understandably so looks with repugnance at the crime of rape, but never is the
commision of such an offense attended with such infamy as when the victim is a girl of tender years.
The predicament, therefore, in which appellant Remigio Conchada y Astrera found himself was far
from enviable. He was accused of the crime of raping the complainant, then only eight years of age,
in three separate complaints. 1 After trial, he was duly convicted, the penalty imposed being reclusion
perpetua in each one of the above cases. Precisely because the sympathy of the Court is with the

complainant, whose traumatic experience could have repercussions lasting in its effects, there is all the
more reason for a strict and close scrutiny of the evidence to ascertain whether or not his guilt had been
shown beyond reasonable doubt. Of that, we are convinced. The most rigorous appraisal of the evidence
on record would not justify a reversal We affirm.

As to L-39367, the brief for appellant summarized the evidence for the prosecution in this wise. It
was sometime in the morning of January, 1974, that the accused Remigio Conchada, who was on
the ground floor of the Luzonian Building, Lucena City, asked complainant Eden Lingcoran to go to
the library, located at the fourth floor of the same building. 2 The pretext, according to her, was that she
would be given a newspaper for her father. 3 Another girl, one Marily Albaciete, was with her. 4 Upon
reaching the library, she was immediately taken to a place near the bookshelves where her panties were
taken off. 5 Then appellant took off his pants and inserted his male organ into her private parts. 6 To make
up for her lack of height, she was made to stand on a pile of newspapers, the Balita, about a foot thick,
folded one on top of the other. 7 In that position, she was made to spread her legs about 1-1/2 feet
apart. 8 The result according to her, was that her private parts became wet; after which, appellant moved
his body back and forth against her. 9He wiped the wet parts of her thighs and legs; then gave her the
newspaper, the Bulletin which she brought to her father. 10Complainant went downstairs where "Marilyn
was waiting for me because the bag I have was in the possession of Marilyn." 11 Eden did not tell her
parents that she was dragged by Conchada to the library nor what was done to her on that occasion. 12
The brief for appellant summarizing the evidence of the prosecution in L-39368 admitted the
existence of testimony to the effect that on the afternoon of February 14, 1974, during the
celebration of the University week of the Luzonian Colleges, Romeo Conchada, a son of appellant
informed Eden, who was one of the contestant in the spelling contest, that they would practice for
the event. When they arrived at the library, appellant brought Eden behind bookshelves. She was
abused anew sexually by appellant, who, after removing his trousers as well as her panties,
succeeded in putting his male organ into her private parts. Complainant was again made to stand on
a one-foot thick pile of Balita newspapers. 13 The testimony came from the complainant.
As to the third case against appellant, L-39369, his brief took due note of what had been testified to,
namely, that on March 4, 1974, Eden Lingcoran, Marilyn Albaciete, and Romeo Conchada were sent
by their teacher, one Ruperto Orinday, to the library of the Luzonian University, ostensibly for the
purpose of being taught spelling by appellant, who was the librarian. They did so twice, the first time
at about 10:30 and then at about 11:00 o'clock. Moreover, it was appellant who made the request, as
shown by this letter: "March 4, 1974 Mr. Orinday, Ipakidala mo riyan sa tatlong paparito, anak ni
Pareng Joe at anak ni Insang Ador, iyong "spelling notebook' mo. "I'll compare it to my selected
words. I'll wait until 11:00 A.M. Pareng Remy." 14 The three students complied with the order. First, they
read magazines, and later they were taught spelling by appellant, who once again took complainant
behind the bookshelves and repeated the act of inserting his male organ inside her private parts. "After
the intercourse, [appellant] wiped Eden's thighs and legs with a piece of rag." 15 When appellant was
putting on his trousers, Elizabeth Lingcoran, mother of Eden, arrived at the library. The particular act, she
witnessed. She was stunned, but she did not say anything. She just took complainant home, who, soon
after, with tears in her eyes, told her of the sordid acts perpetrated on her person. What the brief for
appellant failed to mention was that such narration came not only from complainant 16 but also from her
mother, Elizabeth Lingcoran. 17 It was also corroborated in part by her classmate, Marilyn Albaciete. 18
Outside of the testimonial evidence of record, the lower court judge, Delia P. Medina, who wrote an
exhaustive and carefully written decision of sixty-five pages, relied on the findings of Dr. Lucita D.
Goyma, the resident physician who examined the complainant. This is her certification: "This is to
certify that [Eden Lingcoran], age 8 years, female, student and a resident of Lucena City had been
examined in this hospital on the above date. [Findings]: Body no signs of external injury. Vulva
reddish all around. Hymen open, 1-1/2 cm. in diameter, rounded, small laceration at 5 and 6
o'clock positions. Vagina admits one finger. Vaginal smear for presence of spermatozoa - none
seen. 19

To repeat, in view of the seriousness of the accusation and the severity of the penalty imposed, this
Court took particular pains in the study of the records of the case. As set forth at the outset, nothing
was elicited that would justify a reversal of the conviction.
1. The first fifty-seven pages of the appealed decision set forth the testimonies of both the
prosecution and the defense. Thereafter, Judge Medina explained why she arrived at a finding of
guilt. Insofar as the testimony of the complainant was concerned, this is what was stated in her
decision: "The Court finds it quite difficult to disregard the direct, spontaneous, candid and consistent
testimony of Eden Lingcoran, the 8-year-old offended party. It is highly extra-ordinary, if not
improbable, for a girl of her age to concoct and fabricate or retain in her memory a concoction and
fabrication of such a sordid event, which happened not only once but three times, without omitting a
single material circumstance, such as the embrace and kisses of the accused, the pile of
newspapers, the pain, the wetting of her thighs and legs, the wiping of said wetness by the accused,
and above all, the act of the accused in inserting his penis into her private parts, the child being able
to relate well and quite naturally at that, despite the rigid cross-examination, each and every detail of
the incidents, including the sending out of accused's child to buy "pansit", which apparently was
the modus employed by the accused to discard a witness while he consummated his lustful desire.
Not to be overlooked is the unswayed and unpretentious declarations of 9-year-old Marilyn Albaciete
who corroborated Eden's testimony on some took the incidents that happened in the library on
March 4, 1974." 20 The testimony of complainant's mother was appraised thus: "The Court finds it equally
difficult to ignore the testimony of Eden's mother, Elizabeth Lingcoran, since it is certainly against the
human nature and ordinary course of things for a mother to sacrifice the honor, dignity and the bright
future of her daughter, who is so young, so lovely and intelligent, by exposing her to the shame and public
scandal of this trial ... It is unbelievable that to give vent to an alleged grudge against the accused, which
certainly has not been satisfactorily established, Elizabeth would resort to a measure that would
necessarily cover her own daughter with the infamous stigma of having been the victim of rape that would
cause both of them a lifelong grief and ernbarrassment. There is, no proof in the records that Elizabeth
Lingcoran and her husband are so degenerated and wicked that they would sacrifice the future happiness
of their own daughter to satisfy a personal urge for a petty vengeance ..." 21 The appealed decision
likewise took into consideration the testimony of Dr. Goyma, who was grilled in an intensive crossexamination, but whose findings survived the test of the most searching questions: "Likewise, quite
significant are the findings and observations made by the doctor, an expert, who examined Eden and who
corroborated the child's testimony in material points. The opening and laceration of Eden's hymen, the
doctor declared, was abnormal for a girl of Eden's age. The reddening of her vulva "all around' added
even more in making the doctor observe that such abnormal opening and laceration could have been
caused by an attempt to have sexual intercourse with the child or by a male organ coming in contact with
the vagina of Eden, notwithstanding the absence of spermatozoa." 22
2. The first two assigned errors, namely, that the lower court erred in believing the testimony of Eden
Lingcoran, and in not rejecting such testimony, may be discussed jointly. There is pertinence to this
excerpt from People v. Angcap: 23 "Appellant would raise a question of credibility in the second error
assigned. He would charge the trial court of "giving more weight and credence to the testimony of the
complaining witness than to that of the appellant.' He should realize that his plea for reversal does rest on
a weak and infirm foundation. There is need to stress anew that the 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 1910 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 fact
or circumstances of weight and influence, which has been overlooked or the significance of which has
been misinterpreted.' The three-page discussion in the brief for appellant could hardly make a dent in the
appraisal made by the trial court of the competent and credible evidence of record. There could be no
other conclusion then except to declare as bereft of merit this second assignment of errors." 24 Since
Angcap, there had been other decisions in prosecution for rape, where such a dioctrine was reiterrated. 25

3. Appellant assigns as the third error the finding of the lower court that rape was committed. In the
light of the testimony of the evidence for the prosecution, given credence by the trial court, it would
necessarily follow that the proof offered sufficed for a judgment of conviction. The brief for appellant
did not even discuss the evidence for the defense. The lower court did so. Thuis: "On the other
hand, the defense relies mainly on denial, the accused declaring that on February 14 and March 4,
there were many persons inside the library; that Exhibit D, which is his sworn statement that he did
not rape Eden Lingcoran but only toyed with her private parts using merely his fingers, on March 4,
1974, was signed by him without reading it intelligibly, although he admits that he was not threatened
by the police officer who interrogated him on March 4 and neither was he threatened by Fiscal
Romeo Dato, before whom he executed Exhibit D, to sign the same. Accused further claims that he
was not even furnished with a copy of Exhibit D, but on cross-examination admitted that he did not
ask for a copy. Accused contends that the charges against him are ill-motivated (sic) by revenge
because the accused did not lend money to Eden's parents when they were borrowing from
him." 26 When the respective testimonies of both the prosecution and the defense are compared,
especially the certification of Dr. Goyma, the allegation that the loewr court erred in finding tht rape was
committed on the three occasions charged in the complaint is shown to be bereft of any persuasive force.
That is to run counter to the authoritative doctrines. In People v. Oscar, 27 this Court, through Justice
Ostrand, relying on the American decisions, was quite emphatic in its holding that any penetration by the
entry of the labia or lips of the female organ even without rupture of the hymen suffices to warrant
conviction. So it was held likewise in the following cases:People v. Selfaison, 28 People v.
Amores, 29 and People v. Ignacio. 30
4. Nor can there be any weight accorded to the observation made in the brief that complainant
apparently failed to manifest any resistance to the sexual abuse committed on her person. Thus
in People v. De la Cruz, 31 this Court, through Justice Aquino, stated: "Appellant's attempt to discredit
complainant's story by observing that she had "made no outcry" during the commission of the crime or
immediately thereafter does not deserve serious consideration. In the rape of a girl below not deserve
serious consideration. In the rape of a girl below twelve years of age force or intimidation need not be
present." 32 Again, through the same ponente, there is this holding in the subsequent case of People v.
Gonzales: 33"The crime committed by Gonzales is simple rape or rape without the attendance of any of
the qualifying circumstances mentioned in article 335 of the Revised Penal Code. Its basic element is the
carnal knowledge of a girl below twelve years of age." 34
5. That is all that needs to be said except perhaps to reiterate that in providing for the statutory crime
of rape, where the victim is a young girl of tender years, consent on her part is not a defense. The
law is a reflection of the deep concern of the state for the well-being of the child. In at least two
cases, People v. Baylon 35 and People v. Cawili, 36 it was noted that the obligation of the state embraced
in the concept of parens patria justifies such as approach in its penal laws.
WHEREFORE, the appealed decision dated August 8,1974 in Criminal Cases Nos. 753, 754 and
755 of the Court of First Instance of Quezon, Branch I, now respectively L-39367, L-39368 and L39369, sentencing the accused to the penalty of reclusion perpetua in each one of them, is hereby
affirmed. Costs against appellant.

Barredo, Antonio, Aquino, Concepcion, Jr., Santos and Abad Santos, JJ., concur.

http://lawphil.net/judjuris/juri1979/feb1979/gr_l_39367_1979.html?
ref=www.espinashop.com-www.espinashop.com-www.espinashop.comwww.espinashop.com

G.R. No. , 88 SCRA 683

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
DECISION
January 31, 1979
G.R. No. , ,
vs.
,.
, J.:
The law ? and understandably so ? looks with repugnance at the
crime of rape, but never is the commision of such an offense
attended with such infamy as when the victim is a girl of tender
years. The predicament, therefore, in which appellant Remigio
Conchada y Astrera found himself was far from enviable. He was
accused of the crime of raping the complainant, then only eight
years of age, in three separate complaints. 1 After trial, he was duly
convicted, the penalty imposed being reclusion perpetua in each
one of the above cases. Precisely because the sympathy of the
Court is with the complainant, whose traumatic experience could
have repercussions lasting in its effects, there is all the more reason

for a strict and close scrutiny of the evidence to ascertain whether

or not his guilt had been shown beyond reasonable doubt. Of that,
we are convinced. The most rigorous appraisal of the evidence on
record would not justify a reversal We affirm.
As to L-39367, the brief for appellant summarized the evidence for
the prosecution in this wise. It was sometime in the morning of
January, 1974, that the accused Remigio Conchada, who was on the
ground floor of the Luzonian Building, Lucena City, asked
complainant Eden Lingcoran to go to the library, located at the
fourth floor of the same building. 2 The pretext, according to her,
was that she would be given a newspaper for her father. 3 Another
girl, one Marily Albaciete, was with her. 4 Upon reaching the library,
she was immediately taken to a place near the bookshelves where
her panties were taken off. 5 Then appellant took off his pants and
inserted his male organ into her private parts. 6 To make up for her
lack of height, she was made to stand on a pile of newspapers, the
Balita, about a foot thick, folded one on top of the other. 7 In that
position, she was made to spread her legs about 1-1/2 feet apart. 8
The result according to her, was that her private parts became wet;
after which, appellant moved his body back and forth against her. 9
He wiped the wet parts of her thighs and legs; then gave her the
newspaper, the Bulletin which she brought to her father. 10
Complainant went downstairs where "Marilyn was waiting for me
because the bag I have was in the possession of Marilyn." 11 Eden
did not tell her parents that she was dragged by Conchada to the
library nor what was done to her on that occasion. 12
The brief for appellant summarizing the evidence of the prosecution
in L-39368 admitted the existence of testimony to the effect that on
the afternoon of February 14, 1974, during the celebration of the
University week of the Luzonian Colleges, Romeo Conchada, a son of
appellant informed Eden, who was one of the contestant in the

spelling contest, that they would practice for the event. When they
arrived at the library, appellant brought Eden behind bookshelves.
She was abused anew sexually by appellant, who, after removing his
trousers as well as her panties, succeeded in putting his male organ
into her private parts. Complainant was again made to stand on a
one-foot thick pile of Balita newspapers. 13 The testimony came
from the complainant.
As to the third case against appellant, L-39369, his brief took due
note of what had been testified to, namely, that on March 4, 1974,
Eden Lingcoran, Marilyn Albaciete, and Romeo Conchada were sent
by their teacher, one Ruperto Orinday, to the library of the Luzonian
University, ostensibly for the purpose of being taught spelling by
appellant, who was the librarian. They did so twice, the first time at
about 10:30 and then at about 11:00 o'clock. Moreover, it was
appellant who made the request, as shown by this letter: "March 4,
1974 Mr. Orinday, Ipakidala mo riyan sa tatlong paparito, anak ni
Pareng Joe at anak ni Insang Ador, iyong "spelling notebook' mo. "I'll
compare it to my selected words. I'll wait until 11:00 A.M. Pareng
Remy." 14 The three students complied with the order. First, they
read magazines, and later they were taught spelling by appellant,
who once again took complainant behind the bookshelves and
repeated the act of inserting his male organ inside her private parts.
"After the intercourse, [appellant] wiped Eden's thighs and legs with
a piece of rag." 15 When appellant was putting on his trousers,
Elizabeth Lingcoran, mother of Eden, arrived at the library. The
particular act, she witnessed. She was stunned, but she did not say
anything. She just took complainant home, who, soon after, with
tears in her eyes, told her of the sordid acts perpetrated on her
person. What the brief for appellant failed to mention was that such
narration came not only from complainant 16 but also from her
mother, Elizabeth Lingcoran. 17 It was also corroborated in part by
her classmate, Marilyn Albaciete. 18

Outside of the testimonial evidence of record, the lower court judge,

Delia P. Medina, who wrote an exhaustive and carefully written
decision of sixty-five pages, relied on the findings of Dr. Lucita D.
Goyma, the resident physician who examined the complainant. This
is her certification: "This is to certify that [Eden Lingcoran], age 8
years, female, student and a resident of Lucena City had been
examined in this hospital on the above date. [Findings]: Body ? no
signs of external injury. Vulva ? reddish all around. Hymen ? open, 11/2 cm. in diameter, rounded, small laceration at 5 and 6 o'clock
positions. Vagina admits one finger. Vaginal smear for presence of
spermatozoa - none seen. 19
To repeat, in view of the seriousness of the accusation and the
severity of the penalty imposed, this Court took particular pains in
the study of the records of the case. As set forth at the outset,
nothing was elicited that would justify a reversal of the conviction.
1. The first fifty-seven pages of the appealed decision set forth the
testimonies of both the prosecution and the defense. Thereafter,
Judge Medina explained why she arrived at a finding of guilt. Insofar
as the testimony of the complainant was concerned, this is what was
stated in her decision: "The Court finds it quite difficult to disregard
the direct, spontaneous, candid and consistent testimony of Eden
Lingcoran, the 8-year-old offended party. It is highly extra-ordinary,
if not improbable, for a girl of her age to concoct and fabricate or
retain in her memory a concoction and fabrication of such a sordid
event, which happened not only once but three times, without
omitting a single material circumstance, such as the embrace and
kisses of the accused, the pile of newspapers, the pain, the wetting
of her thighs and legs, the wiping of said wetness by the accused,
and above all, the act of the accused in inserting his penis into her
private parts, the child being able to relate well and quite naturally
at that, despite the rigid cross-examination, each and every detail of

the incidents, including the sending out of accused's child to buy

"pansit", which apparently was the modus employed by the accused
to discard a witness while he consummated his lustful desire. Not to
be overlooked is the unswayed and unpretentious declarations of 9year-old Marilyn Albaciete who corroborated Eden's testimony on
some took the incidents that happened in the library on March 4,
1974." 20 The testimony of complainant's mother was appraised
thus: "The Court finds it equally difficult to ignore the testimony of
Eden's mother, Elizabeth Lingcoran, since it is certainly against the
human nature and ordinary course of things for a mother to sacrifice
the honor, dignity and the bright future of her daughter, who is so
young, so lovely and intelligent, by exposing her to the shame and
public scandal of this trial ... It is unbelievable that to give vent to an
alleged grudge against the accused, which certainly has not been
satisfactorily established, Elizabeth would resort to a measure that
would necessarily cover her own daughter with the infamous stigma
of having been the victim of rape that would cause both of them a
lifelong grief and ernbarrassment. There is, no proof in the records
that Elizabeth Lingcoran and her husband are so degenerated and
wicked that they would sacrifice the future happiness of their own
daughter to satisfy a personal urge for a petty vengeance ..." 21 The
appealed decision likewise took into consideration the testimony of
Dr. Goyma, who was grilled in an intensive cross-examination, but
whose findings survived the test of the most searching questions:
"Likewise, quite significant are the findings and observations made
by the doctor, an expert, who examined Eden and who corroborated
the child's testimony in material points. The opening and laceration
of Eden's hymen, the doctor declared, was abnormal for a girl of
Eden's age. The reddening of her vulva "all around' added even
more in making the doctor observe that such abnormal opening and
laceration could have been caused by an attempt to have sexual
intercourse with the child or by a male organ coming in contact with

the vagina of Eden, notwithstanding the absence of spermatozoa."

22
2. The first two assigned errors, namely, that the lower court erred
in believing the testimony of Eden Lingcoran, and in not rejecting
such testimony, may be discussed jointly. There is pertinence to this
excerpt from People v. Angcap: 23 "Appellant would raise a question
of credibility in the second error assigned. He would charge the trial
court of "giving more weight and credence to the testimony of the
complaining witness than to that of the appellant.' He should realize
that his plea for reversal does rest on a weak and infirm foundation.
There is need to stress anew that the 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 1910 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 fact or

circumstances of weight and influence, which has been overlooked
or the significance of which has been misinterpreted.' The threepage discussion in the brief for appellant could hardly make a dent
in the appraisal made by the trial court of the competent and
credible evidence of record. There could be no other conclusion then
except to declare as bereft of merit this second assignment of
errors." 24 Since Angcap, there had been other decisions in
prosecution for rape, where such a dioctrine was reiterrated. 25
3. Appellant assigns as the third error the finding of the lower court
that rape was committed. In the light of the testimony of the
evidence for the prosecution, given credence by the trial court, it
would necessarily follow that the proof offered sufficed for a
judgment of conviction. The brief for appellant did not even discuss
the evidence for the defense. The lower court did so. Thuis: "On the
other hand, the defense relies mainly on denial, the accused
declaring that on February 14 and March 4, there were many
persons inside the library; that Exhibit D, which is his sworn
statement that he did not rape Eden Lingcoran but only toyed with
her private parts using merely his fingers, on March 4, 1974, was
signed by him without reading it intelligibly, although he admits that
he was not threatened by the police officer who interrogated him on
March 4 and neither was he threatened by Fiscal Romeo Dato,
before whom he executed Exhibit D, to sign the same. Accused
further claims that he was not even furnished with a copy of Exhibit
D, but on cross-examination admitted that he did not ask for a copy.
Accused contends that the charges against him are ill-motivated
(sic) by revenge because the accused did not lend money to Eden's
parents when they were borrowing from him." 26 When the
respective testimonies of both the prosecution and the defense are
compared, especially the certification of Dr. Goyma, the allegation
that the loewr court erred in finding tht rape was committed on the

three occasions charged in the complaint is shown to be bereft of

any persuasive force. That is to run counter to the authoritative
doctrines. In People v. Oscar, 27 this Court, through Justice Ostrand,
relying on the American decisions, was quite emphatic in its holding
that any penetration by the entry of the labia or lips of the female
organ even without rupture of the hymen suffices to warrant
conviction. So it was held likewise in the following cases: People v.
Selfaison, 28 People v. Amores, 29 and People v. Ignacio. 30
4. Nor can there be any weight accorded to the observation made in
the brief that complainant apparently failed to manifest any
resistance to the sexual abuse committed on her person. Thus in
People v. De la Cruz, 31 this Court, through Justice Aquino, stated:
"Appellant's attempt to discredit complainant's story by observing
that she had "made no outcry" during the commission of the crime
or immediately thereafter does not deserve serious consideration. In
the rape of a girl below not deserve serious consideration. In the
rape of a girl below twelve years of age force or intimidation need
not be present." 32 Again, through the same ponente, there is this
holding in the subsequent case of People v. Gonzales: 33 "The crime
committed by Gonzales is simple rape or rape without the
attendance of any of the qualifying circumstances mentioned in
article 335 of the Revised Penal Code. Its basic element is the carnal
knowledge of a girl below twelve years of age." 34
5. That is all that needs to be said except perhaps to reiterate that in
providing for the statutory crime of rape, where the victim is a
young girl of tender years, consent on her part is not a defense. The
law is a reflection of the deep concern of the state for the well-being
of the child. In at least two cases, People v. Baylon 35 and People v.
Cawili, 36 it was noted that the obligation of the state embraced in
the concept of parens patria justifies such as approach in its penal
laws.

WHEREFORE, the appealed decision dated August 8,1974 in Criminal

Cases Nos. 753, 754 and 755 of the Court of First Instance of
Quezon, Branch I, now respectively L-39367, L-39368 and L-39369,
sentencing the accused to the penalty of reclusion perpetuain each
one of them, is hereby affirmed. Costs against appellant.
http://philippinelaw.info/jurisprudence/grl39367.html