G.R. No.

L-33284 April 20, 1989

FIRST DIVISION

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ROLANDO CENTENO, ET AL., defendants. ROLANDO CENTENO, defendantappellant.

The Solicitor General for plaintiff-appellee.

Rodrigo Law Office for defendant-appellant.

Besides Dr. Plaridel F. Vidal, the NBI medico-legal officer who testified on the autopsy
of Santos, two important witnesses who gave a first-hand version of how Santos was
allegedly killed by the accused-appellant were presented by the prosecution. These
were Dionisio Violago and Eulogio Villanueva, who were both friends of the victim.
According to Violago, he and Santos, together with their other companions, were in the
store of one Aling Goreng when Patrolman Valeriano Reyes approached Santos and
told the young man to come with him. Santos demurred, protesting that he had done
nothing wrong, whereupon Reyes boxed him in the chest and forcibly brought him to
the police station. There Santos loudly objected to his detention, prompting Police
Chief Centeno to say, "Matigas ka yatang talaga," although he relented later and
allowed him to go home. But as Santos was leaving, Centeno had a change of mind and
asked Reyes to bring Santos back. Reyes was holding Santos's arm when Centeno
administered the first karate blow on the nape of Santos's neck that made the victim fall
forward on the backrest of a bench. This was followed by two more karate blows that
crumpled him to the cement floor where he lay prostrate and motionless. On Centeno's
order, two policemen then picked up Santos and took him inside the locker room
adjacent to the municipal jail. 3

CRUZ, J.:

It all started, innocuously enough, with a drinking spree. On that afternoon of

December 1, 1968, Rolando Santos was enjoying himself with some friends and plenty
of beer that he eventually could not carry. Within the hour, he would be dead of a
massive brain hemorrhage. The venue would be the municipal building itself. And the
police chief himself, together with one of his policemen, would be accused of
murdering him.
How Santos died is the question we have to settle. The prosecution says he was killed
with karate blows dealt by the accused-appellant. The defense denies this. It says
Santos drunkenly staggered and fell and hit his head and bled to death.
The trial court believed the prosecution and convicted the police chief while absolving
his co-accused. 1 Rolando Centeno is now before us on appeal of his conviction.
The medical evidence is not disputed. It is accepted that Santos died as a result of
internal bleeding in the brain due to trauma. The victim's head showed various
contusions and abrasions but not in the nape of the neck where the karate blows were
allegedly delivered. 2

Villanueva corroborated Violago and said he cried out, "Why are you doing this to my
friend?" when he saw Santos being mauled by Centeno. He also declared that Santos
was felled with three karate blows from Centeno. This witness claimed he got a glass of
water and gave it to Santos, who could not drink it any more as he was already dying
then. He felt Santos's pulse but there was none. He opened Santos's shirt and put his ear
to his chest but could hear no heartbeat. He said that the other persons who witnessed
the killing, besides the policemen, were Violago, Romy Salao and Serafin Punzalan. 4
The theory of the defense was that Santos was so intoxicated that he reeled and fell and
hit his head and suffered the internal brain hemorrhage that killed him. To support this
claim, it introduced Mercedes Bautista, chief forensic chemist of the NBI, who testified
that at the time of Santos's death he had 0.21% of alcohol in his blood. She declared on
cross-examination that the effect of such quantity would vary according to the person's
physical condition although there would surely be emotional instability in every case. 5
The defense conjectured that as a result of his inebriation, Santos must have crashed
down and hurt his head, resulting in internal bleeding. Valeriano Reyes, the other
accused, testified that after they had brought Santos to the locker room, they heard a
noise ("kalabog") suggesting that Santos had hit something; and sure enough they
found him dying on the floor when they went in to investigate. 6 It is doubtful though
how they could have heard the alleged sound, considering the thick concrete walls of
the room and the fact that they were then some ten meters away. 7

There is also the argument that no external injuries were found on the nape of the neck,
where the karate blows were administered although there were abrasions and
contusions elsewhere in the victim's head. As Dr. Vidal explained, however, even if no
marks were left on the neck, karate blows thereon could cause the generalized and
extensive bleedings that caused the victim's death. Thus:
Q
Will you please explain, if a karate blow delivered on the nape of a person
without necessarily producing contusions or abrasions will cause brain hemorrhage?
A
Depending on the position of the fist that one will apply on the person. A
karate blow will produce inner injury but without any outside injury especially this
portion of the hand, (witness pointing to the hypothenar) unlike this portion (witness
pointing to the knuckles) and especially when the karate blows delivered with the
hypothenar on a muscular portion of the body like the nape, there will be no external
injuries but the injury is internal. To further explain, I will cite to you an example. The
boxers who use gloves on their hands and when they will deliver blows on a person,
that person will not sustain external injuries but there is severe injury inside the brain
and that could justify that karate blows will not produce external injuries but internal
injuries. 8
The defense itself submitted that Santos shouted drunkenly within hearing distance of
Centeno and Reyes, "Putang inang mga pulis iyan! Walang kuwenta sa akin iyan!" 9
They claimed to be tolerant and simply admonished him to go home, but subsequent
events showed they were really annoyed by his remarks. This was the motive that
prompted Reyes to drag Santos to the municipal building and led Centeno later to kill
him.

Even assuming there was abuse of superior strength, on which issue we do not have to
rule here, this aggravating circumstance is deemed absorbed by treachery. As for the
mitigating circumstances claimed by the defense, the Court holds that they cannot be
allowed. The derogatory statement made by Santos which so irritated Centeno did not
constitute such a grave provocation as to warrant the lessening of his penalty for
reacting as he did in punishing the victim to death. Neither can Centeno argue now that
he had not intended to commit so grave a wrong as the actual killing of Santos as he
knew, or should have known, that the karate chops on the nape of the neck would have
a lethal effect upon the defenseless and drunken victim.
There being no generic aggravating or mitigating circumstances, the term of
imprisonment was correctly fixed at reclusion perpetua, the medium penalty for
murder. The civil indemnity is, however, increased to P30,000.00 consistent with
present policy.
It was not only Rolando Santos who was intoxicated when he died at 22 on December
1, 1968. There was another kind of drunkenness that afflicted the chief of police, who
misused his power and lawlessly took a life.
WHEREFORE, the appealed judgment is AFFIRMED except as to the civil indemnity,
which is increased to P30,000.00. Costs against the accused-appellant. It is so ordered.
Narvasa (Chairman), Gancayco, Grio-Aquino and Medialdea, JJ., concur.

Footnotes

We are satisfied that Violago and Villanueva were telling the truth about the killing of
their friend although there were indeed inconsistencies in their statements. These were
minor lapses only and did not impair the essential truthfulness of their narrations. As
for the defense, its explanation of the death of Santos while he was in the custody of the
police is hardly plausible and mainly speculative. Murder cannot be excused on such
improbable conjectures

1 Rollo, pp. 21-42. Decision penned by Judge Carlos L. Sundiam.

Murder it was indeed with the qualifying circumstance of treachery. There was alevosia
because Santos was suddenly attacked from behind when in his weakened and
intoxicated condition, coupled with the fact that his arm was then being held by Reyes,
he could not defend himself. The accused-appellant had employed means aimed at
achieving his purpose without risk to himself from any defense the victim could have
made.

5 TSN, February 23, 1970, p. 2; p. 9.

2 Original Records, p. 194.

3

TSN, July 2, 1969, pp. 88-109; July 3, 1969, pp. 32-39.

4 TSN, September 17, 1969, pp. 2-7; pp. 14-16.

6 TSN, June 24, 1970, pp. 4-5.

7 Rollo, p. 36.
8 TSN, November 20, 1969, pp. 30-31.
9 TSN, August 5, 1970, p. 19.

G.R. No. L-9206

November 25, 1914

EN BANC
THE UNITED STATES, plaintiff-appellee, vs.
JOAQUIN CATANGAY, defendant-appellant.
Godofredo Reyes for appellant.
Attorney-General Avancea for appellee.
ARAULLO, J.:
On March 6, 1913, the following complaint was filed against the defendant in the Court
of First Instance of the Province of Tayabas by the fiscal of that province:
The undersigned charges Joaquin Catangay with the crime of homicide through
reckless negligence, committed as follows:
On or about December 4, 1912, in the pueblo of Candelaria, Province of Tayabas,
Philippine Islands, the said Joaquin Catangay did, without any precaution whatever, fire
from his shotgun a charge that lodged in the left parietal region of Mauricio Ramos,
thereby instantly killing him; an act committed in violation of law.
After due trial the said Court of First Instance, on June 21, 1913, rendered judgment
whereby the defendant, who was found guilty of the crime charged in the complaint
was sentenced to the penalty of four months and one day of arresto mayor, to the
accessory penalties of the law, to pay an indemnity of P1,000 to the heirs of the
deceased or to suffer, in case of insolvency, forty days of subsidiary imprisonment, and
to pay the costs of the case; and, finally it was therein ordered that the shotgun
mentioned in the complaint should be confiscated and disposed of in accordance with
the law.
The trial court, setting forth in the said judgment the facts which he held to have been
proven and the grounds upon which he rendered his decision in the manner
aforementioned, said:

"From the evidence introduced at the trial, it has been fully proven that on the night of
the crime the deceased, Mauricio Ramos, taking his shotgun with him went to hunt deer
in the barrio of Quinatijan, municipality of Candelaria, Tayabas, first passing by the
house of Santiago Abandia, whom he took along with him and in his company also
passed by the house of the defendant, Joaquin Catangay, whom they both invited to
bring his shotgun and go with them for a hunt; that while the three men were passing
along in the middle of a field of talahib (high grass), the deceased in front of the
carrying lighted lantern fastened to his forehead, behind him the defendant, and lastly
Santiago Abandia, the first two men saw a deer were all mounted; that thereupon
Santiago Abandia stopped his horse and also dismounted in order that the deer might
not become aware of the presence of the hunters by the noise; that few moments
afterwards. two shots were heard in quick succession and then the light the deceased
carried went out; that Santiago Abandia, upon noticing that the said light was
extinguished, approached the deceased; and he found the defendant alongside of him,
raising him up, saying: "What can have happened to my godfather?'; that, as the
deceased could not get up, Santiago Abandia asked the defendant for matches and lit a
little stick, by which light witness saw the wound in the back of the head of the
deceased, who was already dead; and that the said wound consisted of a fracture of the
left parietal region, the brain being exposed. It has also been proved that there had been
no previous trouble between the defendant and the deceased, but that on the contrary
they had always been on intimate terms of friendship.
The defendant testifying in his own defense stated that upon seeing that the deer, which
the deceased had also noticed, might escape, he made haste to approach the latter, who
had his back toward him and was on his left, and that, in taking hurried steps for that
purpose, the defendant stumbled against an embankment or pilapil that lay between him
and the deceased; that thereupon he fell on one knee, an accident which caused the
shotgun, which he had already loaded, cocked, and aimed at the deer, the half of whose
body was now lost from sight, to be discharged, this one charge striking the deceased in
the head.
The crime charged in the present case should be qualified as one of homicide
occasioned by reckless negligence a crime provided for and punished by article 568,
in connection with article 404, of the Penal Code for the reason that there was no
malice or criminal intention on the part of the defendant in the discharge of his shotgun
which resulted in wounding and causing the instantaneous death of the deceased,
Mauricio Ramos; but that was, however, reckless negligence on the part of defendant,
for, as the deceased whom he was approaching, was almost directly in front of him, he
should have taken the precaution an elemental one in handling firearms so likely to
be discharged by the slightest accident not to have carried his shotgun cocked and
aimed, as he did on the occasion in question.

The defendant having appealed from said judgment, his counsel accepts the finding
therein made of the proved facts, but contends that the court erred in holding that such
facts constitute reckless negligence and, therefore, in applying article 568 of the Penal
Code.

In the judgment appealed from the statement is made that the defendant, according to
his testimony, when he stumbled against the enbankment or pilapil and fell to the
ground on one knee already had his shotgun cocked and aimed at the deer, the half of
whose body was then lost to sight.

According to the trial judge, the reckless negligence on the part of the defendant
consists in that latter did not take the necessary precaution, which the court considered
elemental on that occasion in view of the circumstances, not to carry his shotgun
cocked and aimed; but the court also took into account the fact that, as testified by the
defendant, the discharge of his firearm (the shot from which wounded and killed the
deceased) was caused by his stumbling against an enbankment or pilapil that law
between him and the victim, causing him to fall to one of his knees.

It is shown by the testimony of the defendant himself that when he perceived that there
was a deer in sight he was three or four meters away from the deceased and, with
respect to the relative position of the latter and the defendant, at the point marked No. 3
on the rough sketch (Exhibit 1), that is, behind the deceased, who was at a point a little
aside and to the right of a straight line in the direction of the deer, so that, as appear
from the said sketch, the defendant, from where he was, could have discharged his gun
at the animal without serious danger to the deceased, because the latter was not in the
direct line of fire, but some distance away.

The accidental cause, then, of the discharge of the arm was not due to the fact of the
defendant's having it cocked and aimed, but to the accident of his stumbling against an
embankment in the way. The occurrence was entirely accidental and involuntary.
Consequently, the crime charged in this prosecution lacks the necessary element to
allow of its being considered as reckless negligence under article 568 of the Penal
Code, as would have been the case if though through no malice on the part of the
defendant, the damage had been produced, nevertheless, by some voluntary act of his.
(U.S. vs. Barnes, 12 Phil. Rep., 93; and decision of the supreme court of Spain, of June
28, 1881.)
The diligence with which the law requires the individual at all times to govern his
conduct varies with the nature of the situation in which he is placed and with the
importance of the act which he is to perform. (U.S. vs. Reyes, 1 Phil. Rep., 375.)
In the case of United States vs. Barias (23 Phil. Rep., 434) this court, citing the case of
Ahern vs. Oregon Telephone Co., (24 Oreg., 276, 294; 35 Pac., 549), said: "Negligence
is want of the care required by the circumstances. It is a relative or comparative, not an
absolute, term and its application depends upon the situation of the parties and the
degree of care and vigilance which the circumstances reasonably require. Where the
danger is great, a high degree of care is necessary, and the failure to observe it is a want
of ordinary care under the circumstances."
In order to determine, therefore, whether there was imprudence or negligence on the
part of the defendant, or whether or not he took the necessary precautions to avoid the
unfortunate accident that occurred, the surrounding circumstances, the nature of the act
that he was about to perform or was performing and the situation in which he found
himself, must be taken into account.

The defendant, explaining what occurred and what he did as soon as he became aware
of the presence of the deer, testified as follows, in answer to various questions:
Q. Tell how the accident that is the subject matter of the information filed against you
before this court occurred. A. One afternoon of the month of December, one night of
the month of December, Mauricio Ramos and Santiago Abandia came to my house and
told me to get ready. I followed them and on my replying "yes," they added "quickly." I
hastened to saddle my horse and when it was saddled mounted it and we rode toward
the north. When he arrived at the barrio of Quinatihan and the irrigated land there, we
loaded our shotguns and headed for the north, through this irrigated land, in quest of
deer, and we had not traveled long before he stopped his horse.
Q. Who was "he"? A. The deceased, Mauricio Ramos. And my horse came up to his
horse, behind his horse. On seeing that he was disamounting, I checked my horse,
backed it up, tied it and went to the place where he was; but, on making a turn to pass
around behind his horse, I saw him in the act of leaning forward, taking aim, and,
owing to my haste, for I saw that the deer was about to run, I stumbled against
something and slipped, which caused the shotgun I was carrying to go off.
Q. Is this the shotgun you were carrying? A. Yes, sir.
Q. When you were hurrying to the place where he was, after you had tied your horse,
how was your shotgun? A. I was going toward him with the shotgun, pointed
upwards and held in both hands, and was pushing the safety catch to release it, when I
saw the deceased in a stooping position, almost on his knees, aiming at the deer.
Q. So that the shotgun of yours was at safety or had the safety catch when you were
going toward him? A. Yes, sir.

Q. and why did you go to him, for what purpose? A. Because he was stooping and
was aiming, and I saw that deer.
xxx

xxx

xxx

Q. And for what purpose and why did you run toward the deceased? A. I saw almost
kneeling down on the ground and aiming, but he had been in this position for some
little time and had not fired. I saw the deer, or half of its body. It was about to escape. I,
too, wanted to shoot, and went in his direction so I could shoot the deer.
Q. What did you stumble against? A. An embankment of earth, for it was in high
place.
xxx

xxx

xxx

A. No sir. My intention was to get nearer to it or alongside the deceased to take aim
afterwards and shoot from there.
The court:
Q. When you were approaching the deceased, did you see where the deer was standing?
A. I saw only a half of the deer's body and I made haste.
Q. Did you believe that the deer would get away from you without firing at it? A. I
feared that, for he had been aiming some time and had not fired.
The fiscal:

Q. Did you say that upon your stumbling against something the shotgun went off?

Q. Immediately after you alighted from your horse and saw the deer, did you aim at it?

A. Yes sir.

A. No, Sir.

The court:

Q. At what moment did you aim at it; when you were approaching the deceased? A.
I aimed at the deer when I saw the deceased kneeling, in a kneeling posture, and when
only half of the deers body was in sight.

Q. When your gun was discharged was the safety catch still closed? A. No, sir. just
at the moment I raised the safety catch I slipped and did not know how the gun went
off, for it was discharged at the moment I stumbled.
The fiscal:
Q. How were you carrying the shotgun when, as you said, you pressed the safety catch
to lock it? A. I had my shotgun with me. The other man had his shotgun in a
horizontal position, almost in aim. He had stopped to fire. I was walking pretty fast and
was pushing up the safety catch when I stumbled and the barrel of the shotgun rose up
at the same time I fell.
Q. So that you fell? A. I did not fall to the ground, but bent toward it so much that I
nearly fell down.
Q. Did the shotgun touch the ground? A. No sir.
xxx

xxx

xxx

Q. When you saw the deer you got excited, aimed at it, and fired at it, did you not?

Q. And you were going along that is to say, you were aiming at the deer while you
were walking? A. Yes, sir. The muzzle of the gun was pointing toward the deer.
From the foregoing questions and answers, it is seen that when the defendant became
aware of the presence of the deer he saw the deceased squatting down, almost kneeling
on the ground and aiming at the animal; that he had been in this posture for some little
time without shooting, and as the defendant could see only half of the deer's body and
the animal was about to run away, the defendant tried to approach or get beside the
deceased, in order to aim and shoot thence; that he did in fact go toward the decease,
holding the shotgun in both hands with the barrel pointing upwards, though in the
direction of the deer, and with the safety catch closed; and that, at the moment he
pushed up the safety catch to open it, he stumbled against an embankment, slipped and
fell, and the gun he was holding in his hands was discharged.
Under the circumstances in which the defendant found himself, it was not necessary for
him the employ extraordinary caution, because the danger in which the deceased, who
was at one side though some distance ahead of him, might then have been was not
great; it was enough that he should have taken the precaution that he did, and which
was that which the circumstances required in attempting to approach the deceased, to
point upwards the gun he was carrying and to take advantage of the occasion when the

deceased was squatting and almost kneeling in this position the latter could not be in
danger of being hit if the gun was fired, while, on the other hand, he would have been
free from all danger, had the defendant succeeded in getting beside him, as he intended
to do, in order to shoot thence, as being a point from which he could see the whole of
the deer.
Neither can it be held that there was negligence or lack of care in the fact that the
defendant tried to open the safety catch of the gun while he was going toward the
deceased and when he was but a short distance from him, for, in view of the nature of
the act which he was about to perform, it was natural that he should have the gun
prepared to fire at the game, at once, or as soon as he should have succeeded in placing
himself beside his companion. So, if the gun was discharged through the defendant's
having stumbled against an embankment there, the shot causing the death of his
companion, and this embankment cannot be attributed to a want of caution or
precaution on the part of the defendant (he did not see it, for, as he himself testified, he
was going along with his eyes fixed on the deer, and it is also understood that he would
not have been looking down, as he had his companion near at hand), the death of the
deceased can only be attributed to an unforeseen and unfortunate accident, for which
the defendant can not be held criminally liable.
The Attorney-General, however, states in his brief that the defendant's liability may
reasonable be inferred from his testimony given in the criminal investigation held
before the justice of the peace of Candelaria, Tayabas.
That testimony, which is shown in Exhibit B presented in evidence at the trial, in the
part thereof pertinent to the matter in question, reads as follows: "We were hunting on
horseback and had agreed that if the man who was well ahead, that is, Mauricio, should
alight fro his horse, it would be a sign that he had found an animal; and it happened in
fact that Mauricio did alight from his horse. Then I also dismounted and on seeing that
there was a deer immediately fired at it, but, owing to the confusion existing at the
time, I am unable to say positively whether or not he fired before I did, or whether I
shot the deer or the deceased."
According to the justice of the peace himself, who testified at the trial, the said
testimony was taken down by him in Spanish, he having translated it from Tagalog, in
which language the defendant testified before him. Counsel for the defense, on the
other hand, tried to prove by means of cross-questions addressed to the justice of the
peace at the hearing, that the latter, in taking down the said testimony in Spanish, after
translating it from Tagalog the language used by the defendant must have omitted
therefrom that part of the statement he made at the trial, relative to the cause of the
discharge of the shotgun on that occasion.

From the aforementioned testimony it merely appears indeed that an agreement had
been made between the deceased, Mauricio Ramos, his other companion and the
defendant, that when the man who was well ahead, that is, the deceased, should alight
from his horse, it would be a sign that there was game in sight; and that the defendant,
on seeing that Mauricio, the deceased, had alighted from his horse, also dismounted
from his and, on seeing that in fact there was a deer, immediately fired his shotgun at it.
The lower court described very little importance to this testimony, for it is not
mentioned in the decision, but took due account of that given by the defendant at the
trial; he found him guilty upon the ground that, as aforesaid, he did not take the proper
precaution, in view of the circumstances, not to carry his shotgun at that time cocked
and aimed. But even though the first testimony had been taken into account, it could
not serve to prove that the defendant acted with negligence or want of diligence in
firing the shot, for the simple reason that there is not a single in the testimony in
question as to the positions of the defendant and the deceased with relation to each
other, nor to that of the deceased in relation to the deer, which in sight of the defendant.
Neither can it be affirmed, upon examination of the rough sketch Exhibit 1, that the
deceased was in the line of fire, for, on drawing a straight line from the deer to the
defendant, as shown in the sketch, it is seen that the deceased was not on the line, but at
one side of it and at such a distance away from it as to preclude the idea that he would
be in such danger as to have made it necessary for the defendant to have adopted
precautions other than those the actual circumstances of the case required before he
fired his gun from that position.
After due consideration, then, of the said testimony, either separately or in relation with
the merits of the case, and of that given by the defendant himself at the trial, also in
connection with the same merits, it cannot be held that the defendant is guilty of the
crime of homicide through reckless negligence, as charged in the complaint.
Therefore, reversing the judgment appealed from, we freely absolve the defendant, with
the costs of both instances de officio.
Arellano, C.J., Torres, Johnson, Carson and Moreland, JJ., concur.

pay the costs. On the night of February 18, 1923, one Bartolome Quiaoit invited Pedro
Ramirez, the accused herein, Victoriano Ranga, the deceased, and Agustin Menor to
hunt in the mount Balitok of the municipality of Nueva Era, Province of Ilocos Norte.
The three last named proceeded to hunt, leaving Bartolome Quiaoit in a hut
approximately 1 kilometer from the place where the act complained of took place.
Upon the hunters having arrived at a place in mount Balitok, Pedro Ramirez, who was
carrying the shotgun of Bartolome Quiaoit with a lantern, happened to hunt a deer, and
then he told his companions to stay there and watch over the prey while he entered the
forest to get it. Thus Victoriano Ranga and Agustin Menor were waiting when suddenly
the report of the shotgun was heard hitting Victoriano Ranga in the eye and the right
temple, who thereafter died on that night as a result of the wounds.
G.R. No. 24084. November 3, 1926.
EN BANC
THE PEOPLE OF THE PHILIPPINE ISLANDS, Plaintiff-Appellee,
v. PEDRO RAMIREZ, Defendant-Appellant.
Vicente Llanes for Appellant.
Acting Attorney-General Reyes for Appellee.

SYLLABUS

1. CRIMINAL. LAW; HOMICIDE; HOMICIDE THROUGH RECKLESS

IMPRUDENCE. Where it appears that the accused killed the deceased while
hunting at night by shooting him in the belief that he was a deer, after having left the
deceased, who was his companion, at another place, he cannot be convicted of the
crime of homicide, no proof having been introduced as to the existence of enmity
between them, but of homicide through reckless imprudence, since he has not exercised
due diligence to avoid the accident.

DECISION

VILLAMOR, J. :
The appellant was sentenced by the Court of First Instance of Ilocos Norte, for the
crime of homicide, to the penalty of fourteen years eight months and one day of
reclusion temporal, to indemnify the mother of the deceased in the sum of P500 and to

It does not appear that the matter was judicially investigated until the month of October,
1924, when the complaint was filed which initiated this proceeding.
The only witness who could testify upon the act complained of is naturally Agustin
Menor who was near the deceased when the latter was shot. According to Agustin
Menor, the defendant, after having gotten the first prey, told his companions to stay
there, while he (Pedro Ramirez) was leaving them to go on hunting, and "when he was
far away, he fired the shotgun," hitting the deceased Victoriano Ranga. It must be noted
that the witness Agustin Menor changed his first testimony that "when he was far away,
he fired the shotgun," by saying afterwards, "When Pedro Ramirez was a little away, he
turned toward us and fired." And to make it more specific, the defense moved that the
translation of the testimony of the witness be corrected and the interpreter of the court
caused it to be stated in the record that the true testimony of the witness was as follows:
"Pedro Ramirez caused me and Victoriano Ranga to stay in the mount, telling us:
Brother you stay here and I am going up to hunt with the lamp and then after he has
gone away, he (Pedro Ramirez) turned toward us and fired."
On the other hand the defendant, testifying as witness in his behalf, admits being the
author of the shot which caused the death of Victoriano Ranga; that on that night after
getting the first prey, he told his companions to stay there, watching over the prey,
while he was going away looking for another; and so he did, because otherwise it
would have been hard for them to find the prey, if no one would have been left there;
that being far away from his companions, he seemed to have seen with his lantern
something like the eyes of a deer about fifty meters from him and then he shot it; but
much to his surprise, on approaching what he thought was a deer, it proved to be his
companion Victoriano Ranga. The same witness says that he did not expect to find his
companions in that spot, for he had warned them not to leave, but they left, the place.
The testimony of the two witnesses as to the distance of the accused from them when
he fired the gun for the second time is contradictory. On the other hand, there is not in

the record any circumstance as to whether or not the deceased and the witness Agustin
Menor were in the same place where they were left by the defendant, when the latter
fired. The night being dark like that when the event took place, the hunter in the midst
of a forest without paths is likely to get confused as to his relative situation; and after
walking around, he may think having gone very far, when in fact he has not, from the
point of departure. And so, judging the case from what the two witnesses Agustin
Menor and Pedro Ramirez have testified to, and taking into account that there existed
no motive whatever for resentment on the part of the defendant against the offended
party, we are compelled to conclude that the act complained of constitutes homicide
through reckless imprudence. The defendant, who was carrying a firearm to hunt at
nighttime with the aid of a lantern, knowing that he had two companions, should have
exercised all the necessary diligence to avoid every undesirable accident, such as the
one that unfortunately occurred on the person of Victoriano Ranga.
While the fact that the defendant, a few days after the event, has offered to the mother
of the deceased a carabao and a horse by way of indemnity, indicates on the one hand
that the defendant admitted the commission of the crime, on the other it shows that he
performed the act without criminal intent and only through a real imprudence.
The defense alleges that the trial court must have solved the reasonable doubt in favor
of the defendant. After considering carefully the evidence and all the circumstances of
the case, we are of the opinion and so hold that the defendant is guilty of the crime of
homicide through reckless imprudence, and must be punished under paragraph 1 of
article 568 of the Penal Code.
Wherefore the penalty of one year and one day of prision correcional, with the
accessories prescribed by the law, must be imposed upon him, and with this
modification, the judgment appealed from is affirmed in all other respects, with the
costs against the appellant. So ordered.
Avancea, C.J., Street, Malcolm, Ostrand, Johns and Villa-Real, JJ., concur.
Separate Opinions
ROMUALDEZ, J., dissenting:
I believe that the guilt of the defendant is only under paragraph 2 of article 568 of the
Penal Code.

which caused his subsequent death, to the damage and prejudice of the heirs of the
aforenamed Bayani Miranda.
That the crime was committed with the qualifying circumstance of treachery and the
aggravating circumstances of evident premeditation and superior strength, and the
means employed was to weaken the defense; that the wrong done in the commission of
the crime was deliberately augmented by causing another wrong, that is the burning of
the body of Bayani Miranda.
CONTRARY TO LAW (p. 1, Records).

G.R. No. L-74324 November 17, 1988

FIRST DIVISION
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
FERNANDO PUGAY y BALCITA, & BENJAMIN SAMSON y MAGDALENA,
accused-appellants.
The Solicitor General for plaintiff-appellee.
Citizens Legal Assistance Office for accused-appellants.

Upon being arraigned, both accused pleaded not guilty to the offense charged. After
trial, the trial court rendered a decision finding both accused guilty on the crime of
murder but crediting in favor of the accused Pugay the mitigating circumstance of lack
of intention to commit so grave a wrong, the dispositive portion of which reads as
follows:
WHEREFORE, the accused Fernando Pugay y Balcita and Benjamin Samson y
Magdalena are pronounced guilty beyond reasonable doubt as principals by direct
participation of the crime of murder for the death of Bayani Miranda, and appreciating
the aforestated mitigating circumstance in favor of Pugay, he is sentenced to a prison
term ranging from twelve (12) years of prision mayor, as minimum, to twenty (20)
years of reclusion temporal, as maximum, and Samson to suffer the penalty of reclusion
perpetua together with the accessories of the law for both of them. The accused are
solidarily held liable to indemnify the heirs of the victim in the amount of P13,940.00
plus moral damages of P10,000.00 and exemplary damages of P5,000.00.
Let the preventive imprisonment of Pugay be deducted from the principal penalty.

MEDIALDEA, J.:
For the death of Bayani Miranda, a retardate, FERNANDO PUGAY y BALCITA and
BENJAMIN SAMSON y MAGDALENA were charged with the crime of MURDER in
Criminal Case No. L-175-82 of the Court of First Instance (now Regional Trial Court)
of Cavite, under an information which reads as follows:
That on or about May 19, 1982 at the town plaza of the Municipality of Rosario,
Province of Cavite, Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, conspiring, confederating and mutually helping and assisting
one another, with treachery and evident premeditation, taking advantage of their
superior strength, and with the decided purpose to kill, poured gasoline, a combustible
liquid to the body of Bayani Miranda and with the use of fire did then and there,
wilfully, unlawfully and feloniously, burn the whole body of said Bayani Miranda

Cost against both accused.

SO ORDERED (p. 248, Records).
Not satisfied with the decision, both accused interposed the present appeal and assigned
the following errors committed by the court a quo:
1.
THE COURT A QUO ERRED IN UTILIZING THE STATEMENTS OF
ACCUSED-APPELLANTS IN ITS APPRECIATION OF FACTS DESPITE ITS
ADMISSION THAT THE ACCUSED-APPELLANTS WERE NOT ASSISTED BY A
COUNSEL DURING THE CUSTODIAL INVESTIGATION.

2.
THE COURT A QUO ERRED IN NOT FINDING THAT THE
SUPPRESSION BY THE PROSECUTION OF SOME EVIDENCE IS FATAL TO ITS
CASE.
3.
THE COURT A QUO ERRED IN LENDING CREDENCE TO THE
INCREDIBLE TESTIMONY OF EDUARDO GABION WHO WAS ONE OF THE
MANY SUSPECTS ARRESTED BY THE POLICE (Accused-appellants' Brief, p. 48,
Rollo).
The antecedent facts are as follows:
The deceased Miranda, a 25-year old retardate, and the accused Pugay were friends.
Miranda used to run errands for Pugay and at times they slept together. On the evening
of May 19, 1982, a town fiesta fair was held in the public plaza of Rosario, Cavite.
There were different kinds of ride and one was a ferris wheel.
Sometime after midnight of the same date, Eduardo Gabion was sitting in the ferris
wheel and reading a comic book with his friend Henry. Later, the accused Pugay and
Samson with several companions arrived. These persons appeared to be drunk as they
were all happy and noisy. As the group saw the deceased walking nearby, they started
making fun of him. They made the deceased dance by tickling him with a piece of
wood.
Not content with what they were doing with the deceased, the accused Pugay suddenly
took a can of gasoline from under the engine of the ferns wheel and poured its contents
on the body of the former. Gabion told Pugay not to do so while the latter was already
in the process of pouring the gasoline. Then, the accused Samson set Miranda on fire
making a human torch out of him.
The ferris wheel operator later arrived and doused with water the burning body of the
deceased. Some people around also poured sand on the burning body and others
wrapped the same with rags to extinguish the flame.
The body of the deceased was still aflame when police officer Rolando Silangcruz and
other police officers of the Rosario Police Force arrived at the scene of the incident.
Upon inquiring as to who were responsible for the dastardly act, the persons around
spontaneously pointed to Pugay and Samson as the authors thereof.
The deceased was later rushed to the Grace Hospital for treatment. In the meantime, the
police officers brought Gabion, the two accused and five other persons to the Rosario
municipal building for interrogation. Police officer Reynaldo Canlas took the written
statements of Gabion and the two accused, after which Gabion was released. The two
accused remained in custody.

After a careful review of the records, We find the grounds relied upon by the accusedappellants for the reversal of the decision of the court a quo to be without merit.
It bears emphasis that barely a few hours after the incident, accused-appellants gave
their written statements to the police. The accused Pugay admitted in his statement,
Exhibit F, that he poured a can of gasoline on the deceased believing that the contents
thereof was water and then the accused Samson set the deceased on fire. The accused
Samson, on the other hand, alleged in his statement that he saw Pugay pour gasoline on
Miranda but did not see the person who set him on fire. Worthy of note is the fact that
both statements did not impute any participation of eyewitness Gabion in the
commission of the offense.
While testifying on their defense, the accused-appellants repudiated their written
statements alleging that they were extracted by force. They claimed that the police
maltreated them into admitting authorship of the crime. They also engaged in a
concerted effort to lay the blame on Gabion for the commission of the offense.
Thus, while it is true that the written statements of the accused-appellants were
mentioned and discussed in the decision of the court a quo, the contents thereof were
not utilized as the sole basis for the findings of facts in the decision rendered. The said
court categorically stated that "even without Exhibits 'F' and 'G', there is still Gabion's
straightforward, positive and convincing testimony which remains unaffected by the
uncorroborated, self-serving and unrealiable testimonies of Pugay and Samson" (p.
247, Records).
Accused-appellants next assert that the prosecution suppressed the testimonies of other
eyewitnesses to the incident. They claim that despite the fact that there were other
persons investigated by the police, only Gabion was presented as an eyewitness during
the trial of the case. They argue that the deliberate non- presentation of these persons
raises the presumption that their testimonies would be adverse to the prosecution.
There is no dispute that there were other persons who witnessed the commission of the
crime. In fact there appears on record (pp. 16-17, Records) the written statements of
one Abelardo Reyes and one Monico Alimorong alleging the same facts and imputing
the respective acts of pouring of gasoline and setting the deceased on fire to the
accused-appellants as testified to by Gabion in open court. They were listed as
prosecution witnesses in the information filed. Considering that their testimonies would
be merely corroborative, their non-presentation does not give rise to the presumption
that evidence wilfully suppressed would be adverse if produced. This presumption does
not apply to the suppression of merely corroborative evidence (U.S. vs. Dinola, 37 Phil.
797). Besides, the matter as to whom to utilize as witness is for the prosecution to
decide.

Accused-appellants also attack the credibility of the eyewitness Gabion alleging that
not only was the latter requested by the mother of the deceased to testify for the
prosecution in exchange for his absolution from liability but also because his testimony
that he was reading a comic book during an unusual event is contrary to human
behavior and experience.
Gabion testified that it was his uncle and not the mother of the deceased who asked him
to testify and state the truth about the incident. The mother of the deceased likewise
testified that she never talked to Gabion and that she saw the latter for the first time
when the instant case was tried. Besides, the accused Pugay admitted that Gabion was
his friend and both Pugay and the other accused Samson testified that they had no
previous misunderstanding with Gabion. Clearly, Gabion had no reason to testify
falsely against them.
In support of their claim that the testimony of Gabion to the effect that he saw Pugay
pour gasoline on the deceased and then Samson set him on fire is incredible, the
accused-appellants quote Gabion's testimony on cross-examination that, after telling
Pugay not to pour gasoline on the deceased, he (Gabion) resumed reading comics; and
that it was only when the victim's body was on fire that he noticed a commotion.
However, explaining this testimony on re-direct examination, Gabion stated:
Q.
Mr. Gabion, you told the Court on cross-examination that you were reading
comics when you saw Pugay poured gasoline unto Bayani Miranda and lighted by
Samson. How could you possibly see that incident while you were reading comics?
A.

I put down the comics which I am reading and I saw what they were doing.

Q.
According to you also before Bayani was poured with gasoline and lighted
and burned later you had a talk with Pugay, is that correct?
A.
When he was pouring gasoline on Bayani Miranda I was trying to prevent
him from doing so.
Q.
We want to clarify. According to you a while ago you had a talk with Pugay
and as a matter of fact, you told him not to pour gasoline. That is what I want to know
from you, if that is true?
A.

Yes, sir.

Q.
Aside from Bayani being tickled with a stick on his ass, do you mean to say
you come to know that Pugay will pour gasoline unto him?

A.

I do not know that would be that incident.

Q.
Why did you as(k) Pugay in the first place not to pour gasoline before he did
that actually?
A.

Because I pity Bayani, sir.

Q.
When you saw Pugay tickling Bayani with a stick on his ass you tried
according to you to ask him not to and then later you said you asked not to pour
gasoline. Did Pugay tell you he was going to pour gasoline on Bayani?
A.

I was not told, sir.

Q.
Did you come to know..... how did you come to know he was going to pour
gasoline that is why you prevent him?
A.
Because he was holding on a container of gasoline. I thought it was water but
it was gasoline.
Q.
It is clear that while Pugay was tickling Bayani with a stick on his ass, he
later got hold of a can of gasoline, is that correct?
A.

Yes, sir.

Q.
And when he pick up the can of gasoline, was that the time you told him not
to pour gasoline when he merely pick up the can of gasoline.
A.

I saw him pouring the gasoline on the body of Joe.

Q.
So, it is clear when you told Pugay not to pour gasoline he was already in the
process of pouring gasoline on the body of Bayani?
A.

Yes, sir (Tsn, July 30, 1983, pp. 32-33).

It is thus clear that prior to the incident in question, Gabion was reading a comic book;
that Gabion stopped reading when the group of Pugay started to make fun of the
deceased; that Gabion saw Pugay get the can of gasoline from under the engine of the
ferris wheel; that it was while Pugay was in the process of pouring the gasoline on the
body of the deceased when Gabion warned him not to do so; and that Gabion later saw
Samson set the deceased on fire.
However, there is nothing in the records showing that there was previous conspiracy or
unity of criminal purpose and intention between the two accused-appellants
immediately before the commission of the crime. There was no animosity between the

deceased and the accused Pugay or Samson. Their meeting at the scene of the incident
was accidental. It is also clear that the accused Pugay and his group merely wanted to
make fun of the deceased. Hence, the respective criminal responsibility of Pugay and
Samson arising from different acts directed against the deceased is individual and not
collective, and each of them is liable only for the act committed by him (U.S. vs.
Magcomot, et. al. 13, Phil. 386; U.S. vs. Abiog, et. al. 37 Phil. 1371).
The next question to be determined is the criminal responsibility of the accused Pugay.
Having taken the can from under the engine of the ferris wheel and holding it before
pouring its contents on the body of the deceased, this accused knew that the can
contained gasoline. The stinging smell of this flammable liquid could not have escaped
his notice even before pouring the same. Clearly, he failed to exercise all the diligence
necessary to avoid every undesirable consequence arising from any act that may be
committed by his companions who at the time were making fun of the deceased. We
agree with the Solicitor General that the accused is only guilty of homicide through
reckless imprudence defined in Article 365 of the Revised Penal Code, as amended. In
U.S. vs. Maleza, et. al. 14 Phil. 468, 470, this Court ruled as follows:
A man must use common sense and exercise due reflection in all his acts; it is his duty
to be cautious, careful, and prudent, if not from instinct, then through fear of incurring
punishment. He is responsible for such results as anyone might foresee and for acts
which no one would have performed except through culpable abandon. Otherwise his
own person, rights and property, all those of his fellow-beings, would ever be exposed
to all manner of danger and injury.

There can be no doubt that the accused Samson knew very well that the liquid poured
on the body of the deceased was gasoline and a flammable substance for he would not
have committed the act of setting the latter on fire if it were otherwise. Giving him the
benefit of doubt, it call be conceded that as part of their fun-making he merely intended
to set the deceased's clothes on fire. His act, however, does not relieve him of criminal
responsibility. Burning the clothes of the victim would cause at the very least some
kind of physical injuries on his person, a felony defined in the Revised Penal Code. If
his act resulted into a graver offense, as what took place in the instant case, he must be
held responsible therefor. Article 4 of the aforesaid code provides, inter alia, that
criminal liability shall be incurred by any person committing a felony (delito) although
the wrongful act done be different from that which he intended.
As no sufficient evidence appears in the record establishing any qualifying
circumstances, the accused Samson is only guilty of the crime of homicide defined and
penalized in Article 249 of the Revised Penal Code, as amended. We are disposed to
credit in his favor the ordinary mitigating circumstance of no intention to commit so
grave a wrong as that committed as there is evidence of a fact from which such
conclusion can be drawn. The eyewitness Gabion testified that the accused Pugay and
Samson were stunned when they noticed the deceased burning (Tsn, June 1, 1983, pp.
16-17).
The proper penalty that the accused Samson must suffer is an indeterminate one
ranging from eight (8) years of prision mayor, as minimum, to fourteen (14) years of
reclusion temporal, as maximum.

The proper penalty that the accused Pugay must suffer is an indeterminate one ranging
from four (4) months of arresto mayor, as minimum, to four (4) years and two (2)
months of prision correccional, as maximum. With respect to the accused Samson, the
Solicitor General in his brief contends that "his conviction of murder, is proper
considering that his act in setting the deceased on fire knowing that gasoline had just
been poured on him is characterized by treachery as the victim was left completely
helpless to defend and protect himself against such an outrage" (p. 57, Rollo). We do
not agree.

The lower court held the accused solidarily liable for P13,940.00, the amount spent by
Miranda's parents for his hospitalization, wake and interment. The indemnity for death
is P30,000.00. Hence, the indemnity to the heirs of the deceased Miranda is increased
to P43,940.00.

There is entire absence of proof in the record that the accused Samson had some reason
to kill the deceased before the incident. On the contrary, there is adequate evidence
showing that his act was merely a part of their fun-making that evening. For the
circumstance of treachery to exist, the attack must be deliberate and the culprit
employed means, methods, or forms in the execution thereof which tend directly and
specially to insure its execution, without risk to himself arising from any defense which
the offended party might make.

Accordingly, the judgment is affirmed with the modifications above-indicated. Costs

against the accused-appellants.

Both accused shall be jointly and severally liable for the aforesaid amount plus the
P10,000.00 as moral damages and P5,000.00 as exemplary damages as found by the
court a quo.

SO ORDERED.
Narvasa, Cruz, Gancayco and Grio-Aquino, JJ., concur.

BELLOSILLO, J.:
This was gruesome murder in a main thoroughfare an hour before sundown. A hapless
foreign religious minister was riddled with bullets, his head shattered into bits and
pieces amidst the revelling of his executioners as they danced and laughed around their
quarry, chanting the tune "Mutya Ka Baleleng", a popular regional folk song, kicking
and scoffing at his prostrate, miserable, spiritless figure that was gasping its last.
Seemingly unsatiated with the ignominy of their manslaughter, their leader picked up
pieces of the splattered brain and mockingly displayed them before horrified spectators.
Some accounts swear that acts of cannibalism ensued, although they were not
sufficiently demonstrated. However, for their outrageous feat, the gangleader already
earned the monicker "cannibal priest-killer" But, what is indubitable is that Fr. Tulio
Favali 1 was senselessly killed for no apparent reason than that he was one of the
Italian Catholic missionaries laboring in heir vineyard in the hinterlands of Mindanao. 2

G.R. Nos. 86883-85

January 29, 1993

FIRST DIVISION

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
NORBERTO MANERO, JR., EDILBERTO MANERO, ELPIDIO MANERO,
SEVERINO LINES, RUDY LINES, EFREN PLEAGO, ROGER BEDAO,
RODRIGO ESPIA, ARSENIO VILLAMOR, JR., JOHN DOE and PETER DOE,
accused.
SEVERINO LINES, RUDY LINES, EFREN PLEAGO and ROGER
BENDAO, accused-appellants.

The Solicitor General for plaintiff-appellee.

Romeo P. Jorge for accused-appellants.

In the aftermath of the murder, police authorities launched a massive manhunt which
resulted in the capture of the perpetrators except Arsenio Villamor, Jr., and two
unidentified persons who eluded arrest and still remain at large.
Informations for Murder, 3 Attempted Murder 4 and Arson 5 were accordingly filed
against those responsible for the frenzied orgy of violence that fateful day of 11 April
1985. As these cases arose from the same occasion, they were all consolidated in
Branch 17 of the Regional Trial Court of Kidapawan, Cotabato. 6
After trial, the court a quo held
WHEREFORE . . . the Court finds the accused Norberto Manero, Jr. alias Commander
Bucay, Edilberto Manero alias Edil, Elpidio Manero, Severino Lines, Rudy Lines,
Rodrigo Espia alias Rudy, Efren Pleago and Roger Bedao GUILTY beyond
reasonable doubt of the offense of Murder, and with the aggravating circumstances of
superior strength and treachery, hereby sentences each of them to a penalty of
imprisonment of reclusion perpetua; to pay the Pontifical Institute of Foreign Mission
(PIME) Brothers, the congregation to which Father Tulio Favali belonged, a civil
indemnity of P12,000.00; attorney's fees in the sum of P50,000.00 for each of the eight
(8) accused or a total sum of P400,000.00; court appearance fee of P10,000.00 for
every day the case was set for trial; moral damages in the sum of P100,000.00; and to
pay proportionately the costs.
Further, the Court finds the accused Norberto Manero, Jr. alias Commander Bucay
GUILTY beyond reasonable doubt of the offense of Arson and with the application of
the Indeterminate Sentence Law, hereby sentences him to an indeterminate penalty of
imprisonment of not less than four (4) years, nine (9) months, one (1) day of prision
correccional, as minimum, to six (6) years of prision correccional, as maximum, and to

indemnify the Pontifical Institute of Foreign Mission (PIME) Brothers, the

congregation to which Father Tulio Favali belonged, the sum of P19,000.00
representing the value of the motorcycle and to pay the costs.
Finally, the Court finds the accused Norberto Manero, Jr., alias Commander Bucay,
Edilberto Manero alias Edil, Elpidio Manero, Severino Lines, Rudy Lines, Rodrigo
Espia alias Rudy, Efren Pleago and Roger Bedao GUILTY beyond reasonable doubt
of the offense of Attempted Murder and with the application of the Indeterminate
Sentence Law, hereby sentences each of them to an indeterminate penalty of
imprisonment of not less than two (2) years, four (4) months and one (1) day of prision
correccional, and minimum, to eight (8) years and twenty (20) days of prision mayor,
as maximum, and to pay the complainant Rufino Robles the sum of P20,000.00 as
attorney's fees and P2,000.00 as court appearance fee for every day of trial and to pay
proportionately the costs.
The foregoing penalties shall be served by the said accused successively in the order of
their respective severity in accordance with the provisions of Article 70 of the Revised
Penal Code, as amended. 7
From this judgment of conviction only accused Severino Lines, Rudy Lines, Efren
Pleago and Roger Bedao appealed with respect to the cases for Murder and
Attempted Murder. The Manero brothers as well as Rodrigo Espia did not appeal;
neither did Norberto Manero, Jr., in the Arson case. Consequently, the decision as
against them already became final.
Culled from the records, the facts are: On 11 April 1985, around 10:00 o'clock in the
morning, the Manero brothers Norberto Jr., Edilberto and Elpidio, along with Rodrigo
Espia, Severino Lines, Rudy Lines, Efren Pleago and Roger Bedao, were inside the
eatery of one Reynaldo Diocades at Km. 125, La Esperanza, Tulunan, Cotabato. They
were conferring with Arsenio Villamor, Jr., private secretary to the Municipal Mayor of
Tulunan, Cotabato, and his two (2) unidentified bodyguards. Plans to liquidate a
number of suspected communist sympathizers were discussed. Arsenio Villamor, Jr.
scribbled on a cigarette wrapper the following "NPA v. NPA, starring Fr. Peter,
Domingo Gomez, Bantil, Fred Gapate, Rene alias Tabagac and Villaning." "Fr. Peter" is
Fr. Peter Geremias, an Italian priest suspected of having links with the communist
movement; "Bantil" is Rufino Robles, a Catholic lay leader who is the complaining
witness in the Attempted Murder; Domingo Gomez is another lay leader, while the
others are simply "messengers". On the same occasion, the conspirators agreed to
Edilberto Manero's proposal that should they fail to kill Fr. Peter Geremias, another
Italian priest would be killed in his stead. 8
At about 1:00 o'clock that afternoon, Elpidio Manero with two (2) unidentified
companions nailed a placard on a street-post beside the eatery of Deocades. The placard

bore the same inscriptions as those found on the cigarette wrapper except for the
additional phrase "versus Bucay, Edil and Palo." Some two (2) hours later, Elpidio also
posted a wooden placard bearing the same message on a street cross-sign close to the
eatery. 9
Later, at 4:00 o'clock, the Manero brothers, together with Espia and the four (4)
appellants, all with assorted firearms, proceeded to the house of "Bantil", their first
intended victim, which was also in the vicinity of Deocades' carinderia. They were met
by "Bantil" who confronted them why his name was included in the placards. Edilberto
brushed aside the query; instead, he asked "Bantil" if he had any qualms about it, and
without any provocation, Edilberto drew his revolver and fired at the forehead of
"Bantil". "Bantil" was able to parry the gun, albeit his right finger and the lower portion
of his right ear were hit. Then they grappled for its possession until "Bantil" was
extricated by his wife from the fray. But, as he was running away, he was again fired
upon by Edilberto. Only his trousers were hit. "Bantil" however managed to seek
refuge in the house of a certain Domingo Gomez. 10 Norberto, Jr., ordered his men to
surround the house and not to allow any one to get out so that "Bantil" would die of
hemorrhage. Then Edilberto went back to the restaurant of Deocades and pistolwhipped him on the face and accused him of being a communist coddler, while
appellants and their cohorts relished the unfolding drama. 11
Moments later, while Deocades was feeding his swine, Edilberto strewed him with a
burst of gunfire from his M-14 Armalite. Deocades cowered in fear as he knelt with
both hands clenched at the back of his head. This again drew boisterous laughter and
ridicule from the dreaded desperados.
At 5:00 o'clock, Fr. Tulio Favali arrived at Km. 125 on board his motorcycle. He
entered the house of Gomez. While inside, Norberto, Jr., and his co-accused Pleago
towed the motorcycle outside to the center of the highway. Norberto, Jr., opened the
gasoline tank, spilled some fuel, lit a fire and burned the motorcycle. As the vehicle
was ablaze, the felons raved and rejoiced. 12
Upon seeing his motorcycle on fire, Fr. Favali accosted Norberto, Jr. But the latter
simply stepped backwards and executed a thumbs-down signal. At this point, Edilberto
asked the priest: "Ano ang gusto mo, padre (What is it you want, Father)? Gusto mo,
Father, bukon ko ang ulo mo (Do you want me, Father, to break your head)?"
Thereafter, in a flash, Edilberto fired at the head of the priest. As Fr. Favali dropped to
the ground, his hands clasped against his chest, Norberto, Jr., taunted Edilberto if that
was the only way he knew to kill a priest. Slighted over the remark, Edilberto jumped
over the prostrate body three (3) times, kicked it twice, and fired anew. The burst of
gunfire virtually shattered the head of Fr. Favali, causing his brain to scatter on the
road. As Norberto, Jr., flaunted the brain to the terrified onlookers, his brothers danced

and sang "Mutya Ka Baleleng" to the delight of their comrades-in-arms who now took
guarded positions to isolate the victim from possible assistance. 13
In seeking exculpation from criminal liability, appellants Severino Lines, Rudy Lines,
Efren Pleago and Roger Bedao contend that the trial court erred in disregarding their
respective defenses of alibi which, if properly appreciated, would tend to establish that
there was no prior agreement to kill; that the intended victim was Fr. Peter Geremias,
not Fr. Tulio Favali; that there was only one (1) gunman, Edilberto; and, that there was
absolutely no showing that appellants cooperated in the shooting of the victim despite
their proximity at the time to Edilberto.
But the evidence on record does not agree with the arguments of accused-appellants.
On their defense of alibi, accused brothers Severino and Rudy Lines claim that they
were harvesting palay the whole day of 11 April 1985 some one kilometer away from
the crime scene. Accused Roger Bedao alleges that he was on an errand for the church
to buy lumber and nipa in M'lang, Cotabato, that morning of 11 April 1985, taking
along his wife and sick child for medical treatment and arrived in La Esperanza,
Tulunan, past noontime.
Interestingly, all appellants similarly contend that it was only after they heard gunshots
that they rushed to the house of Norberto Manero, Sr., Barangay Captain of La
Esperanza, where they were joined by their fellow CHDF members and co-accused,
and that it was only then that they proceeded together to where the crime took place at
Km. 125.
It is axiomatic that the accused interposing the defense of alibi must not only be at
some other place but that it must also be physically impossible for him to be at the
scene of the crime at the time of its commission. 14
Considering the failure of appellants to prove the required physical impossibility of
being present at the crime scene, as can be readily deduced from the proximity between
the places where accused-appellants were allegedly situated at the time of the
commission of the offenses and the locus criminis, 15 the defense of alibi is definitely
feeble. 16 After all, it has been the consistent ruling of this Court that no physical
impossibility exists in instances where it would take the accused only fifteen to twenty
minutes by jeep or tricycle, or some one-and-a-half hours by foot, to traverse the
distance between the place where he allegedly was at the time of commission of the
offense and the scene of the crime. 17 Recently, we ruled that there can be no physical
impossibility even if the distance between two places is merely two (2) hours by bus.
18 More important, it is well-settled that the defense of alibi cannot prevail over
the positive identification of the authors of the crime by the prosecution witnesses. 19

In the case before Us, two (2) eyewitnesses, Reynaldo Deocades and Manuel Bantolo,
testified that they were both inside the eatery at about 10:00 o'clock in the morning of
11 April 1985 when the Manero brothers, together with appellants, first discussed their
plan to kill some communist sympathizers. The witnesses also testified that they still
saw the appellants in the company of the Manero brothers at 4:00 o'clock in the
afternoon when Rufino Robles was shot. Further, at 5:00 o'clock that same afternoon,
appellants were very much at the scene of the crime, along with the Manero brothers,
when Fr. Favali was brutally murdered. 20 Indeed, in the face of such positive
declarations that appellants were at the locus criminis from 10:00 o'clock in the
morning up to about 5:00 o'clock in the afternoon, the alibi of appellants that they were
somewhere else, which is negative in nature, cannot prevail. 21 The presence of
appellants in the eatery at Km. 125 having been positively established, all doubts that
they were not privy to the plot to liquidate alleged communist sympathizers are
therefore removed. There was direct proof to link them to the conspiracy.
There is conspiracy when two or more persons come to an agreement to commit a
crime and decide to commit it. 22 It is not essential that all the accused commit together
each and every act constitutive of the offense. 23 It is enough that an accused
participates in an act or deed where there is singularity of purpose, and unity in its
execution is present. 24
The findings of the court a quo unmistakably show that there was indeed a community
of design as evidenced by the concerted acts of all the accused. Thus
The other six accused, 25 all armed with high powered firearms, were positively
identified with Norberto Manero, Jr. and Edilberto Manero in the carinderia of
Reynaldo Deocades in La Esperanza, Tulunan, Cotabato at 10:00 o'clock in the
morning of 11 April 1985 morning . . . they were outside of the carinderia by the
window near the table where Edilberto Manero, Norberto Manero, Jr., Jun Villamor,
Elpidio Manero and unidentified members of the airborne from Cotabato were grouped
together. Later that morning, they all went to the cockhouse nearby to finish their plan
and drink tuba. They were seen again with Edilberto Manero and Norberto Manero, Jr.,
at 4:00 o'clock in the afternoon of that day near the house of Rufino Robles (Bantil)
when Edilberto Manero shot Robles. They surrounded the house of Domingo Gomez
where Robles fled and hid, but later left when Edilberto Manero told them to leave as
Robles would die of hemorrhage. They followed Fr. Favali to Domingo Gomez' house,
witnessed and enjoyed the burning of the motorcycle of Fr. Favali and later stood guard
with their firearms ready on the road when Edilberto Manero shot to death Fr. Favali.
Finally, they joined Norberto Manero, Jr. and Edilberto Manero in their enjoyment and
merriment on the death of the priest. 26
From the foregoing narration of the trial court, it is clear that appellants were not
merely innocent bystanders but were in fact vital cogs in perpetrating the savage

murder of Fr. Favali and the attempted murder of Rufino Robles by the Manero
brothers and their militiamen. For sure, appellants all assumed a fighting stance to
discourage if not prevent any attempt to provide assistance to the fallen priest. They
surrounded the house of Domingo Gomez to stop Robles and the other occupants from
leaving so that the wounded Robles may die of hemorrhage. 27 Undoubtedly, these
were overt acts to ensure success of the commission of the crimes and in furtherance of
the aims of the conspiracy. The appellants acted in concert in the murder of Fr. Favali
and in the attempted murder of Rufino Robles. While accused-appellants may not have
delivered the fatal shots themselves, their collective action showed a common intent to
commit the criminal acts.

He also laughed and so conformed and agreed to it.

Rudy Lines.

He also said "yes".

What do you mean "yes"?

He also agreed and he was happy and said "yes" we will kill him.

While it may be true that Fr. Favali was not originally the intended victim, as it was Fr.
Peter Geremias whom the group targetted for the kill, nevertheless, Fr. Favali was
deemed a good substitute in the murder as he was an Italian priest. On this, the
conspirators expressly agreed. As witness Manuel Bantolo explained 28

What about Efren Pleago?

He also agreed and even commented laughing "go ahead".

xxx

xxx

xxx

Q
Aside from those persons listed in that paper to be killed, were there other
persons who were to be liquidated?

Q
Roger Bedao, what was his reaction to that suggestion that should they fail
to kill Fr. Peter, they will (sic) kill anybody provided he is an Italian and if not, they
will (sic) make Reynaldo Deocades an example?

There were some others.

Who were they?

Conspiracy or action in concert to achieve a criminal design being sufficiently shown,

the act of one is the act of all the other conspirators, and the precise extent or modality
of participation of each of them becomes secondary. 30

A
They said that if they could not kill those persons listed in that paper then
they will (sic) kill anyone so long as he is (sic) an Italian and if they could not kill the
persons they like to kill they will (sic) make Reynaldo Deocades as their sample.
That appellants and their co-accused reached a common understanding to kill another
Italian priest in the event that Fr. Peter Geremias could not be spotted was elucidated by
Bantolo thus 29
Q

Who suggested that Fr. Peter be the first to be killed?

All of them in the group.

Q
Peter?

What was the reaction of Norberto Manero with respect to the plan to kill Fr.

He laughed and even said, "amo ina" meaning "yes, we will kill him ahead."
xxx

xxx

xxx

What about Severino Lines? What was his reaction?

He also agreed laughing.

The award of moral damages in the amount of P100,000.00 to the congregation, the
Pontifical Institute of Foreign Mission (PIME) Brothers, is not proper. There is nothing
on record which indicates that the deceased effectively severed his civil relations with
his family, or that he disinherited any member thereof, when he joined his religious
congregation. As a matter of fact, Fr. Peter Geremias of the same congregation, who
was then a parish priest of Kidapawan, testified that "the religious family belongs to the
natural family of origin." 31 Besides, as We already held, 32 a juridical person is not
entitled to moral damages because, not being a natural person, it cannot experience
physical suffering or such sentiments as wounded feelings, serious anxiety, mental
anguish or moral shock. It is only when a juridical person has a good reputation that is
debased, resulting in social humiliation, that moral damages may be awarded.
Neither can We award moral damages to the heirs of the deceased who may otherwise
be lawfully entitled thereto pursuant to par. (3), Art. 2206, of the Civil Code, 33 for the
reason that the heirs never presented any evidence showing that they suffered mental
anguish; much less did they take the witness stand. It has been held 34 that moral
damages and their causal relation to the defendant's acts should be satisfactorily proved
by the claimant. It is elementary that in order that moral damages may be awarded there

must be proof of moral suffering. 35 However, considering that the brutal slaying of Fr.
Tulio Favali was attended with abuse of superior strength, cruelty and ignominy by
deliberately and inhumanly augmenting the pain and anguish of the victim, outraging or
scoffing at his person or corpse, exemplary damages may be awarded to the lawful
heirs, 36 even though not proved nor expressly pleaded in the complaint, 37 and the
amount of P100,000.00 is considered reasonable.
With respect to the civil indemnity of P12,000.00 for the death of Fr. Tulio Favali, the
amount is increased to P50,000.00 in accordance with existing jurisprudence, which
should be paid to the lawful heirs, not the PIME as the trial court ruled.
WHEREFORE, the judgment appealed from being in accord with law and the evidence
is AFFIRMED with the modification that the civil indemnity which is increased from
P12,000.00 to P50,000.00 is awarded to the lawful heirs of the deceased plus
exemplary damages of P100,000.00; however, the award of moral damages is deleted.
Costs against accused-appellants.
SO ORDERED.
Cruz, Padilla and Grio-Aquino, JJ., concur.
Footnotes
1
"Tulio" is variably spelled as "Tullio" in certain parts of the records. Incidentally, the
name "Fr. Peter Geremias" is likewise interchangeably referred to as "Fr. Peter Geremia."
2
TSN, 24 October 1985, pp. 55-56.
3
Docketed as Crim. Case No. 1881 for the murder of Fr. Tulio Favali. Those charged are
Norberto Manero, Jr., Edilberto Manero, Elpidio Manero, Severino Lines, Rudy Lines, Efren
Pleago, Rogelio Bedao and Rodrigo Espia.
4
Docketed as Crim. Case No. 1884 for the attempted murder of Rufino Robles. Those
charged are the same accused in Crim. Case No. 1881 except Arsenio Villamor, Jr., John Doe and
Peter Doe.
5
Docketed as Crim. Case No. 1883 for arson for the burning of the motorcycle of Fr.
Tulio Favali. The lone accused is Norberto Manero, Jr.
6
See Records, p. 445.
7
Penned by Judge Benjamin M. Estaol, Regional Trial Court, Branch 17, Kidapawan,
Cotabato; Records, pp. 860-61.
8
See Note 2.
9
Id., pp. 68-70.
10
Id., pp. 70-79.
11
Id., pp. 57-60.
12
Id., pp. 82-89.
13
TSN, 4 October 1985, pp. 91-108; TSN, 6 November 1985, pp. 68-78.
14
People vs. Pugal, G.R. No. 90637, 29 October 1992.

15
All accused-appellants allege that they were in Tulunan, Cotabato, the town where the
offenses were committed, albeit not at the very scene of the crime in Km. 125.
16
People vs. Baez, G.R. No. 95456, 18 September 1992, citing People v. Sabater, No. L38169, 23 February 1978, 81 SCRA 110.
17
People v. De Guzman, G.R. No. 105964, 4 November 1992.
18
People v. Abuyan, Jr., G.R. Nos. 95254-55, 21 July 1992.
19
People v. Antud, G.R. No. 95684, 27 October 1992.
20
Decision, p. 36; Rollo, p. 230.
21
People v. Serdan, G. R. No. 87318, 2 September 1992.
22
People v. Hasiron, G.R. No. 100797, 15 October 1992, citing Art. 8, Revised Penal
Code.
23
People v. Sabornido, G.R. No. 102141, 18 September 1992.
24
People vs. Martinado, G.R. No. 92020, 19 October 1992.
25
Accused-appellants together with two (2) other unidentified persons.
26
Decision, p. 30; Rollo, p. 224.
27
TSN, 28 August 1986, pp. 93-94.
28
TSN, 4 October 1985, p. 118.
29
TSN, 6 November 1985, pp. 36-43.
30
People v. de los Reyes, No. L-44112, 22 October 1992, citing People v. Degoma, G.R.
Nos. 89404-05, 22 May 1992.
31
See TSN, 28 August 1986, p. 51.
32
Simex International (Manila), Inc. v. Court of Appeals, G.R. No. 88013, 19 March
1990, 183 SCRA 360.
33
Art. 2206 (3) provides: "The spouse, legitimate and illegitimate descendants and
ascendants of the deceased may demand moral damages for mental anguish by reason of the death
of the deceased."
34
Raagas v. Traya, 130 Phil. 846 (1968).
35
Darang v. Belizar, No. L-19487, 31 January 1967, 19 SCRA 214.
36
Art. 2230 provides: "In criminal offenses, exemplary damages as a part of the civil
liability may be imposed when the crime was committed with one or more aggravating
circumstances. Such damages are separate and distinct from fines and shall be paid to the offended
party" (Civil Code); see also Dempsey v. RTC, Br. 75, G.R. No. 77737-38, 15 August 1988, 164
SCRA 384, and People v. Marciales, G.R. No. 61961, 18 October 1988, 166 SCRA 436.
37
Singson v. Aragon, 92 Phil. 514 (1953); PAL v. CA, G.R. Nos. 50504-05, 13 August
1990, 188 SCRA 461, citing Kapoe v. Masa, G.R. No. 50473, 21 January 1985, 134 SCRA 231.

tape recording of the confrontation made by petitioner. 2 The transcript reads as

follows:
Plaintiff Soccoro D. Ramirez (Chuchi)

Good Afternoon M'am.

Defendant Ester S. Garcia (ESG)

Ano ba ang nangyari sa 'yo,

nakalimot ka na kung paano ka napunta rito, porke member ka na, magsumbong ka
kung ano ang gagawin ko sa 'yo.
CHUCHI

Kasi, naka duty ako noon.

ESG

Tapos iniwan no. (Sic)

CHUCHI

G.R. No. 93833

September 28, 1995

FIRST DIVISION

SOCORRO D. RAMIREZ, petitioner,

vs.
HONORABLE COURT OF APPEALS, and ESTER S. GARCIA, respondents.

KAPUNAN, J.:

Hindi m'am, pero ilan beses na nila akong binalikan, sabing ganoon

ESG

Ito and (sic) masasabi ko sa 'yo, ayaw kung (sic) mag explain ka,
kasi hanggang 10:00 p.m., kinabukasan hindi ka na pumasok. Ngayon ako ang babalik
sa 'yo, nag-aaply ka sa States, nag-aaply ka sa review mo, kung kakailanganin ang
certification mo, kalimutan mo na kasi hindi ka sa akin makakahingi.
CHUCHI
10:00 p.m.

Hindi M'am. Kasi ang ano ko talaga noon i-cocontinue ko up to

ESG

Bastos ka, nakalimutan mo na kung paano ka pumasok dito sa

hotel. Magsumbong ka sa Union kung gusto mo. Nakalimutan mo na kung paano ka
nakapasok dito "Do you think that on your own makakapasok ka kung hindi ako.
Panunumbyoyan na kita (Sinusumbatan na kita).
CHUCHI

Itutuloy ko na M'am sana ang duty ko.

ESG

Kaso ilang beses na akong binabalikan doon ng mga no (sic) ko.

A civil case damages was filed by petitioner Socorro D. Ramirez in the Regional Trial
Court of Quezon City alleging that the private respondent, Ester S. Garcia, in a
confrontation in the latter's office, allegedly vexed, insulted and humiliated her in a
"hostile and furious mood" and in a manner offensive to petitioner's dignity and
personality," contrary to morals, good customs and public policy." 1

ESG

Nakalimutan mo na ba kung paano ka pumasok sa hotel, kung on

your own merit alam ko naman kung gaano ka "ka bobo" mo. Marami ang nag-aaply
alam kong hindi ka papasa.
CHUCHI

Kumuha kami ng exam noon.

In support of her claim, petitioner produced a verbatim transcript of the event and
sought moral damages, attorney's fees and other expenses of litigation in the amount of
P610,000.00, in addition to costs, interests and other reliefs awardable at the trial
court's discretion. The transcript on which the civil case was based was culled from a

ESG

Oo, pero hindi ka papasa.

CHUCHI

Eh, bakit ako ang nakuha ni Dr. Tamayo

ESG

Kukunin ka kasi ako.

CHUCHI

Eh, di sana

ESG

Huwag mong ipagmalaki na may utak ka kasi wala kang utak.

Akala mo ba makukuha ka dito kung hindi ako.

accused, Socorro D. Ramirez not being authorized by Ester S. Garcia to record the
latter's conversation with said accused, did then and there willfully, unlawfully and
feloniously, with the use of a tape recorder secretly record the said conversation and
thereafter communicate in writing the contents of the said recording to other person.

CHUCHI

Contrary to law.

Mag-eexplain ako.

ESG

Huwag na, hindi ako mag-papa-explain sa 'yo, makaalala ka kung

paano ka puma-rito. "Putang-ina" sasabi-sabihin mo kamag-anak ng nanay at tatay mo
ang mga magulang ko.

Pasay City, Metro Manila, September 16, 1988.

ESG

Wala na akong pakialam, dahil nandito ka sa loob, nasa labas ka

puwede ka ng hindi pumasok, okey yan nasaloob ka umalis ka doon.

Asst. City Fiscal

CHUCHI

Kasi M'am, binbalikan ako ng mga taga Union.

ESG

Nandiyan na rin ako, pero huwag mong kalimutan na hindi ka

makakapasok kung hindi ako. Kung hindi mo kinikilala yan okey lang sa akin, dahil
tapos ka na.
CHUCHI

Ina-ano ko m'am na utang na loob.

ESG

Huwag na lang, hindi mo utang na loob, kasi kung baga sa no,

nilapastangan mo ako.
CHUCHI

Paano kita nilapastanganan?

ESG

Mabuti pa lumabas ka na. Hindi na ako makikipagusap sa 'yo.

Lumabas ka na. Magsumbong ka. 3
As a result of petitioner's recording of the event and alleging that the said act of secretly
taping the confrontation was illegal, private respondent filed a criminal case before the
Regional Trial Court of Pasay City for violation of Republic Act 4200, entitled "An Act
to prohibit and penalize wire tapping and other related violations of private
communication, and other purposes." An information charging petitioner of violation of
the said Act, dated October 6, 1988 is quoted herewith:
INFORMATION
The Undersigned Assistant City Fiscal Accusses Socorro D. Ramirez of Violation of
Republic Act No. 4200, committed as follows:
That on or about the 22nd day of February, 1988, in Pasay City Metro Manila,
Philippines, and within the jurisdiction of this honorable court, the above-named

MARIANO M. CUNETA

Upon arraignment, in lieu of a plea, petitioner filed a Motion to Quash the Information
on the ground that the facts charged do not constitute an offense, particularly a violation
of R.A. 4200. In an order May 3, 1989, the trial court granted the Motion to Quash,
agreeing with petitioner that 1) the facts charged do not constitute an offense under
R.A. 4200; and that 2) the violation punished by R.A. 4200 refers to a the taping of a
communication by a person other than a participant to the communication. 4
From the trial court's Order, the private respondent filed a Petition for Review on
Certiorari with this Court, which forthwith referred the case to the Court of Appeals in
a Resolution (by the First Division) of June 19, 1989.
On February 9, 1990, respondent Court of Appeals promulgated its assailed Decision
declaring the trial court's order of May 3, 1989 null and void, and holding that:
[T]he allegations sufficiently constitute an offense punishable under Section 1 of R.A.
4200. In thus quashing the information based on the ground that the facts alleged do not
constitute an offense, the respondent judge acted in grave abuse of discretion
correctible by certiorari. 5
Consequently, on February 21, 1990, petitioner filed a Motion for Reconsideration
which respondent Court of Appeals denied in its Resolution 6 dated June 19, 1990.
Hence, the instant petition.
Petitioner vigorously argues, as her "main and principal issue" 7 that the applicable
provision of Republic Act 4200 does not apply to the taping of a private conversation
by one of the parties to the conversation. She contends that the provision merely refers
to the unauthorized taping of a private conversation by a party other than those
involved in the communication. 8 In relation to this, petitioner avers that the substance
or content of the conversation must be alleged in the Information, otherwise the facts
charged would not constitute a violation of R.A. 4200. 9 Finally, petitioner agues that

R.A. 4200 penalizes the taping of a "private communication," not a "private

conversation" and that consequently, her act of secretly taping her conversation with
private respondent was not illegal under the said act. 10
We disagree.
First, legislative intent is determined principally from the language of a statute. Where
the language of a statute is clear and unambiguous, the law is applied according to its
express terms, and interpretation would be resorted to only where a literal interpretation
would be either impossible 11 or absurb or would lead to an injustice. 12
Section 1 of R.A. 4200 entitled, " An Act to Prohibit and Penalized Wire Tapping and
Other Related Violations of Private Communication and Other Purposes," provides:
Sec. 1. It shall be unlawfull for any person, not being authorized by all the parties to
any private communication or spoken word, to tap any wire or cable, or by using any
other device or arrangement, to secretly overhear, intercept, or record such
communication or spoken word by using a device commonly known as a dictaphone or
dictagraph or detectaphone or walkie-talkie or tape recorder, or however otherwise
described.
The aforestated provision clearly and unequivocally makes it illegal for any person, not
authorized by all the parties to any private communication to secretly record such
communication by means of a tape recorder. The law makes no distinction as to
whether the party sought to be penalized by the statute ought to be a party other than or
different from those involved in the private communication. The statute's intent to
penalize all persons unauthorized to make such recording is underscored by the use of
the qualifier "any". Consequently, as respondent Court of Appeals correctly concluded,
"even a (person) privy to a communication who records his private conversation with
another without the knowledge of the latter (will) qualify as a violator" 13 under this
provision of R.A. 4200.
A perusal of the Senate Congressional Records, moreover, supports the respondent
court's conclusion that in enacting R.A. 4200 our lawmakers indeed contemplated to
make illegal, unauthorized tape recording of private conversations or communications
taken either by the parties themselves or by third persons. Thus:
xxx

Senator Taada:

xxx

xxx

That qualified only "overhear".

Senator Padilla:
So that when it is intercepted or recorded, the element of secrecy
would not appear to be material. Now, suppose, Your Honor, the recording is not made
by all the parties but by some parties and involved not criminal cases that would be

mentioned under section 3 but would cover, for example civil cases or special
proceedings whereby a recording is made not necessarily by all the parties but perhaps
by some in an effort to show the intent of the parties because the actuation of the parties
prior, simultaneous even subsequent to the contract or the act may be indicative of their
intention. Suppose there is such a recording, would you say, Your Honor, that the
intention is to cover it within the purview of this bill or outside?
Senator Taada:

That is covered by the purview of this bill, Your Honor.

Senator Padilla:
Even if the record should be used not in the prosecution of offense
but as evidence to be used in Civil Cases or special proceedings?
Senator Taada:
That is right. This is a complete ban on tape recorded conversations
taken without the authorization of all the parties.
Senator Padilla:

Now, would that be reasonable, your Honor?

Senator Taada:
I believe it is reasonable because it is not sporting to record the
observation of one without his knowing it and then using it against him. It is not fair, it
is not sportsmanlike. If the purpose; Your honor, is to record the intention of the parties.
I believe that all the parties should know that the observations are being recorded.
Senator Padilla:

This might reduce the utility of recorders.

Senator Taada:
Well no. For example, I was to say that in meetings of the board of
directors where a tape recording is taken, there is no objection to this if all the parties
know. It is but fair that the people whose remarks and observations are being made
should know that the observations are being recorded.
Senator Padilla:

Now, I can understand.

Senator Taada:
That is why when we take statements of persons, we say: "Please
be informed that whatever you say here may be used against you." That is fairness and
that is what we demand. Now, in spite of that warning, he makes damaging statements
against his own interest, well, he cannot complain any more. But if you are going to
take a recording of the observations and remarks of a person without him knowing that
it is being taped or recorded, without him knowing that what is being recorded may be
used against him, I think it is unfair.
xxx

xxx

xxx

(Congression Record, Vol. III, No. 31, p. 584, March 12, 1964)

Senator Diokno: Do you understand, Mr. Senator, that under Section 1 of the bill as
now worded, if a party secretly records a public speech, he would be penalized under
Section 1? Because the speech is public, but the recording is done secretly.
Senator Taada:
Well, that particular aspect is not contemplated by the bill. It is the
communication between one person and another person not between a speaker and a
public.
xxx

xxx

xxx

(Congressional Record, Vol. III, No. 33, p. 626, March 12, 1964)
xxx

xxx

xxx

The unambiguity of the express words of the provision, taken together with the abovequoted deliberations from the Congressional Record, therefore plainly supports the
view held by the respondent court that the provision seeks to penalize even those privy
to the private communications. Where the law makes no distinctions, one does not
distinguish.
Second, the nature of the conversations is immaterial to a violation of the statute. The
substance of the same need not be specifically alleged in the information. What R.A.
4200 penalizes are the acts of secretly overhearing, intercepting or recording private
communications by means of the devices enumerated therein. The mere allegation that
an individual made a secret recording of a private communication by means of a tape
recorder would suffice to constitute an offense under Section 1 of R.A. 4200. As the
Solicitor General pointed out in his COMMENT before the respondent court:
"Nowhere (in the said law) is it required that before one can be regarded as a violator,
the nature of the conversation, as well as its communication to a third person should be
professed." 14
Finally, petitioner's contention that the phrase "private communication" in Section 1 of
R.A. 4200 does not include "private conversations" narrows the ordinary meaning of
the word "communication" to a point of absurdity. The word communicate comes from
the latin word communicare, meaning "to share or to impart." In its ordinary
signification, communication connotes the act of sharing or imparting signification,
communication connotes the act of sharing or imparting, as in a conversation, 15 or
signifies the "process by which meanings or thoughts are shared between individuals
through a common system of symbols (as language signs or gestures)" 16 These
definitions are broad enough to include verbal or non-verbal, written or expressive
communications of "meanings or thoughts" which are likely to include the emotionallycharged exchange, on February 22, 1988, between petitioner and private respondent, in
the privacy of the latter's office. Any doubts about the legislative body's meaning of the
phrase "private communication" are, furthermore, put to rest by the fact that the terms

"conversation" and "communication" were interchangeably used by Senator Taada in

his Explanatory Note to the bill quoted below:
It has been said that innocent people have nothing to fear from their conversations
being overheard. But this statement ignores the usual nature of conversations as well
the undeniable fact that most, if not all, civilized people have some aspects of their
lives they do not wish to expose. Free conversations are often characterized by
exaggerations, obscenity, agreeable falsehoods, and the expression of anti-social desires
of views not intended to be taken seriously. The right to the privacy of communication,
among others, has expressly been assured by our Constitution. Needless to state here,
the framers of our Constitution must have recognized the nature of conversations
between individuals and the significance of man's spiritual nature, of his feelings and of
his intellect. They must have known that part of the pleasures and satisfactions of life
are to be found in the unaudited, and free exchange of communication between
individuals free from every unjustifiable intrusion by whatever means. 17
In Gaanan vs. Intermediate Appellate Court, 18 a case which dealt with the issue of
telephone wiretapping, we held that the use of a telephone extension for the purpose of
overhearing a private conversation without authorization did not violate R.A. 4200
because a telephone extension devise was neither among those "device(s) or
arrangement(s)" enumerated therein, 19 following the principle that "penal statutes
must be construed strictly in favor of the accused." 20 The instant case turns on a
different note, because the applicable facts and circumstances pointing to a violation of
R.A. 4200 suffer from no ambiguity, and the statute itself explicitly mentions the
unauthorized "recording" of private communications with the use of tape-recorders as
among the acts punishable.
WHEREFORE, because the law, as applied to the case at bench is clear and
unambiguous and leaves us with no discretion, the instant petition is hereby DENIED.
The decision appealed from is AFFIRMED. Costs against petitioner.
SO ORDERED.
Padilla, Davide, Jr. and Bellosillo JJ., concur.
Hermosisima, Jr., J., is on leave.
Footnotes
1
2
3
4
5
6

Docketed as Civil Case No. 88-403, Regional Trial Court, Makati, Branch 64.
Rollo, p. 48.
Rollo, pp. 47-48.
Rollo, p. 9.
Rollo, p. 37.
Rollo, p. 99, Annex "H".

7
8
9
10
11
12
13
14
15
16
17
18
19
20

Rollo, p. 13.
Id.
Rollo, p. 14.
Rollo, p. 14-15.
Pacific Oxygen and Acytelene Co. vs. Central Bank 37 SCRA 685 (1971).
Casela v. Court of Appeals, 35 SCRA 279 (1970).
Rollo, p. 33.
Rollo, p. 67.
WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 460 (1976).
Id.
CONGRESSIONAL RECORD, Vol. III, No. 31, at 573 (March 10, 1964).
145 SCRA 112 (1986). See also, Salcedo-Ortanez v. CA 235 SCRA 111 (1994).
Id., at 120.
Id., at 121.

That on or about October 14, 1984, in the Municipality of Gen. Trias, Province of
Cavite, Philippines and within the jurisdiction of this Honorable Court, the aforesaid
accused, conspiring together, acting jointly and assisting one another, with intent to kill,
with treachery and evident premeditation, did then and there, wilfully, unlawfully and
feloniously, assault and attack Orlando Grepo with the use of a piece of wood
commonly known as "dos por dos", hallow (sic) block, fist and foot blows causing the
victim to suffer injuries on his head and other parts of his body, resulting to his death,
to the damage and prejudice of the heirs of Orlando Grepo.
The aggravating circumstances of nighttime and abuse of superior strength were
present in the commission of the offense.
CONTARY TO LAW.
Only Alfredo Salvador was apprehended by the Cavite INP Command while his coaccused have remained at large (Ibid., p. 34). Upon arraignment, Salvador pleaded not
quilty to the offense charged. After trial, judgment was rendered convicting appellant
Salvador, the decretal portion of which reads:

G.R. No. 101215

July 30, 1993

THIRD DIVISION

WHEREFORE, this court finds accused Alfredo Salvador GUILTY beyond reasonable
doubt of the crime of Murder and sentences him to suffer the penalty of Life
imprisonment; to indemnify the heirs of Orlando Grepo in the amount of P30.000.00
without subsidiary imprisonment in case of insolvency; and to pay the costs.
SO ORDERED.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.

ALFREDO SALVADOR, ET AL., * accused, ALFREDO SALVADOR, accusedappellant.

The Solicitor General for plaintiff-appellee.

Froilan L. Valdez for accused-appellant.

BIDIN, J.:

Appellant Alfredo Salvador an co-accused Joey Adap, Augusto Alimurong, Jimmy

Agustin and Armin Aladdin were charged before the Regional Trial Court, Fourth
Judicial Region, Branch 23, Trece Martires City with the crime of Murder in an
information allegedly committed as follows:

Records disclose that at around 9:30 in the evening of October 14, 1984, prosecution
witness Joel Duran was walking with Alberto Villablanca on their way home from
Bahay-Kubo in the town plaza of Gen. Trias, Cavite. Along Prinza Street, they saw
from a distance of about six meters, Orlando Grepo being mauled by five persons.
Through the light of the electric lamp post and the vehicles passing by, Joel recognized
these assailants as Joey Adap, Alfredo Salvador, Jimmy Agustin, Augusto Alimurong
and Armin Aladdin.
The sheer number of assailants deterred Joel and Alberto from helping their childhood
friend Orlando. The five attackers were boxing Orlando and when he fell with his face
to the ground, they kicked him. Then Joey Adap hit Orlando with a "dos por dos" (piece
of wood ) and Alfredo Salvador dropped a hollow block on his back. Joel and Alberto
shouted for help and upon seeing them, the assailants ran away. Councilor Leonardo
Gozo, who responded to Joel's shouts for help, assisted Joel and Alberto in bringing
Orlando to the hospital in Pinagkatipunan (TSN, August 25, 1984, pp. 4-9; 21-23).

Orlando was brought to the Medicare Community Hospital in Gen. Trias where Dr.
Charito Maldos Gozo attended to him. Dr. Gozo found him to be a "walking patient"
but aside from his bruises and contusions, Orlando was complaining of a headache
(TSN, January 29, 1987, pp. 4; 8-13). In the medical certificate she issued on October
15, 1984, Dr. Gozo stated that 17-year-old Orlando Grepo had contusion, hematoma
and abrasion on the 4th intercostal lateral side left, another contusion on the right
temporal parietal area and a third contusion and hematoma on the occipital region. Dr.
Gozo diagnosed that the healing period for these injuries would last from nine to
fourteen days "barring complications" (Exh. F). A neighbor of Orlando, Dr. Gozo knew
that during the two-week period after she treated him Orlando was complaining of
severe headache and "off and on" fever (TSN. January 29, 1987, p.13).

Previous to his testimony in open court, however, appellant executed an affidavit

stating that at around 9:00 o'clock in the evening of October 14, 1984, he was walking
from the school with his friend Willy Buclatin when they saw Orlando Grepo walking
with three persons and when they reached Prinza St., there was a melee ("bigla na
lamang nagkagulo").

On November 4, 1984, Grepo was brought to the clinic of Dr. Jocelyn Tirol Dignos in
Rosario, Cavite. Grepo was perspiring a lot and had

cold, clammy skin specially on his left extremities. He had rolling eyeballs and was in
an unconcious shock-like state. Since he had high-grade fever running to 42.2 degrees
Centigrade, he stayed in Dr. Dignos' clinic for only two hours (TSN, September 26,
1986, p.5). In the medical certificate she issued, Dr. Dignos also stated that Grepo had
convulsive seizures and that he had "meningo-encephalities of undetermined origin"
(Exh. D).
According to Dr. Dignos, said diagnosis was actually made by Dr. Ovillo, a specialist to
whom she referred as the victim was showing signs and symptoms of brain damage.
Because they were not aware that Orlando had been a victim of a mauling incident two
weeks ago and there was then an epidemic of typhoid fever, they entertained typhoid as
Grepo's possible ailment (TSN September 26, 1986, pp. 7-9). But upon learning of the
mauling incident, they diagnosed Grepo's ailment as "meningo encephalitis secondary
to trauma" (Ibid., p. 16). Moreover, they learned that Dr. Apostol of Gen. Trias, Cavite
had given Grepo two grams of chloro ampenicol per day and therefore, if the ailment
was really typhoid. Grepo's fever would have then subsided (Ibid., pp. 15-17). They
would have conducted more tests but since Grepo had become bluish and had difficulty
in breathing, they decide to have him transferred to the Manila Medical Center (Ibid.,
p.17) where the victim finally expired on November 5, 1984 (TSN, April 23, 1987 p.3).
As aforesaid, the trial court rendered a judgment of conviction against Salvador
specifically finding him to be "one of those instrumental in inflicting the fatal wounds
which resulted in the death of Orlando Grepo."
Appellant claims that he was with his family at home watching television at the time
the mauling incident took place. His alibi was corroborated by his sister, Edita
Santores, who testified that appellant watched TV until 10:00 p.m. and immediately
went to bed thereafter.

The Court is therefore presented with two contradictory statements of the accused. One
involving alibi and the other which is practically denial.
Aggrieved by the decision, Salvador interposed this appeal making the following
assignments of errors:

THE COURT A QUO ERRED IN NOT GIVING CREDENCE TO THE EVIDENCE

PRESENTED BY THE DEFENSE.
II
THE COURT A QUO ERRED IN NOT ACQUITTING THE ACCUSEDAPPELLANT ON THE GROUND OF INSUFFICIENCY OF EVIDENCE OF THE
PROSECUTION. (Appellant's Brief, p.1)
A finding of sufficiency of the evidence to establish guilt by proof beyond reasonable
doubt is one fact. As such, its review by the appellate court must be guided by the
principle that, unless arbitrary or without sufficient basis, the findings of the trial court
on question of fact are accorded the highest respect on appeal if not regarded as
conclusive (People vs. Alitao, 194 SCRA 120 [1991]; People vs. Millarpe, 134 SCRA
555 [1985]; People vs. Lopez, 132 SCRA 188 [1984]. In the same manner, the
credibility of witnesses is the province of the trial court who is in a better position to
examine real evidence as well as observe the demeanor of the witnesses (People vs.
Lardizabal, 204 SCRA 320 [1991]; People vs. Vinas, 202 SCRA 720 [1991]). After a
review of the records, We find no reason to depart from these principles in the instant
appeal.
Anchored on denial and alibi, the defense had not overcome the prosecution's solid
proof beyond reasonable doubt of appellant's complicity in the fatal mauling of Orlando
Grepo. In the first place, the defense had not shown that it was physically impossible
for Salvador to be at the scene of the crime at the time it was committed (People vs.
Bicog. 187 SCRA 556 [1990]; People vs. Pio Cantuba, 183 SCRA 289 [1990]; People
vs. Tamayo, 183 SCRA 375 [1990]; People vs. Andres, 155 SCRA 290 [1987]; People
vs. Ornoza, 151 SCRA 495 [1987]; People vs. Tuando, 150 SCRA 8 [1987]); People vs.
Petil, 149 SCRA 92 [1987]. While Salvador was on the witness stand, the defense

counsel understandably did not ask him about the distance of the scene of the crime
from the Salvador residence where he was allegedly watching TV. Neither had the
prosecution ferreted this information from Salvador on cross-examination. For her part,
all that Editha Santores could say was that the scene of the crime was "far from us"
when asked by the prosecution if the distance between the two places was about fifty
meters (TSN, September 30, 1987, p.12). Considering, however, that appellant
Salvador was himself a resident of Prinza St. (TSN, August 28, 1987, p.2) where the
crime occurred, his alibi must fail. Alibi is unconvincing when the distance from the
place where the accused was and the scene of the crime can be negotiated within
minutes (People vs. Marmita, Jr., 180 SCRA 723 [1989]).

the absence of any qualifying circumstance, the crime committed is homicide under Art
249 of the Revised Penal Code and not murder.

But what sealed appellant's conviction is the fact that he was recognized by Joel Duran
as one of the five persons who ganged up on Grepo. Denial and alibi cannot prevail
over the prosecution witness' positive identification of the accused as a perpetrator of
the crime (Collado vs. IAC, 206 SCRA 207 [1992]; People vs. Bocatcat, SR., 188
SCRA 175 [1990]; People vs. Cirilo, Jr., 156 SCRA 397 [1987]; People vs. Danes, 131
SCRA 286 [1984]; People vs. Cortez, 57 SCRA 308 [1974]; People vs. Esmael, 37
SCRA 601 [1971]). Worth nothing is the fact that the defense did not even try to
discredit prosecution witness Joel Duran whose damaging testimony was the principal
foundation of the prosecution theory. Unsullied, Duran's testimony must therefore be
given its due weight and credit.

Abuse of superior strength, a qualifying circumstance in murder, was alleged in the

information as an aggravating circumstance only. ** Mere numerical superiority does
not always mean abuse of superiority to qualify the killing to murder.

However, one other aspect of the crime which the defense, even in the instant appeal,
has failed to argue in favor of appellant is the fact that the appellant had been charged
with and convicted of, the crime of murder for the killing of Orlando Grepo. Art. 248 of
the Revised Penal Code provides that to be liable for murder, an accused must be
proven to have committed the killing of another person under the attendant
circumstances specified therein. Of these circumstances, the information alleges
treachery and evident premeditation to qualify the killing to murder.
It is unfortunate that the trial court failed to discuss the presence or absence of these
qualifying circumstances. However, from the evidence on record, treachery cannot be
appreciated. Sole eyewitness Joel Duran testified that while he and Alberto Villablanca
were walking along Prinza Street, they saw Grepo being mauled by five persons. While
Duran may have witnessed the incident in progress, he did not testify as to how it
began. As the Court held in People vs. Tiozon (198 SCRA 368 [1991]), treachery
cannot be considered where the lone witness did not see the commencement of the
assault. The importance of such testimony cannot be overemphasized considering that
treachery cannot be presumed nor established from mere suppositions.
In the same manner, evident premeditation cannot be appreciated to qualify the killing
to murder in the absence of direct evidenct of the planning and preparation to kill or
when the plan was conceived (People vs. Wenceslao, 212 SCRA 560 [1992]). Thus, in

As to aggravating circumstances, the information alleges nighttime and abuse of

superior strength. To be appreciated as an aggravating circumstance, there must be a
convincing showing that the accused had purposely sought nighttime in order to
facilitate the commission of the crime or to prevent its discovery or to evade the
culprit's capture (People vs. Rodriguez, 193 SCRA 231 [1991]). There is, however, no
proof at all, much more a convincing one, to warrant appreciation of nighttime as an
aggravating circumstance.

Appellant is liable for the crime even if he had not intended to kill Orlando Grepo. This
is because he participated in the concerted effort of mauling the victim, which was
proven beyond reasonable doubt, in furtherance of a common design to inflict physical
harm on Grepo. But where the attack commenced, the fact there are four assailants
would constitute abuse of superiority (Aquino, The Revised Penal Code, Vol. I, 1987
ed., p. 377, citing, among others, U.S. vs. Banagale, 24 Phil. 69 [1913]). Thus, the
homicide committed in this case is attended by the aggravating circumstance of abuse
of superiority as five persons mauled the unarmed and defenseless victim Orlando
Grepo (People vs. Ocimar, 212 SCRA 646 [1992]).
Art. 4 of the Revised Penal Code provides that criminal liability shall be incurred "by
any person committing a felony (delito) although the wrongful act done be different
from that which he intended." The essential requisites of Art. 4 are: (a) that an
intentional felony has been committed, and (b) that the wrong done to the aggrieved
party be the direct, natural and logical consequence of the felony committed by the
offender (People vs. Iligan, 191 SCRA 643, 651 [1990] citing People vs. Mananquil,
132 SCRA 196, 207 [1984]). All these requisites are present in this case. The
intentional felony was the mauling of Grepo and, in the case of appellant, his dropping
of the hollow block on the fallen and hapless victim. The latter's death had been the
direct, natural and logical consequence of the felony as shown by the evidence
provided by the doctors who testified for the prosecution.
Under Art. 249 of the Revised Penal Code, homicide is punishable by reclusion
temporal. In view of the presence of the aggravating circumstance of abuse of superior
strength, which is not offset by any mitigating circumstance, the penalty shall be
imposed in its maximum period (Art. 64 (3), Revised Penal Code). Parenthetically, the
lower court erroneously imposed the penalty of "life imprisonment" for murder. The
proper penalty for murder under Art. 248 is reclusion perpetua and not "life

imprisonment." The need to apply the correct penalty is dictated by the fact that in
appropriate cases, a penalty under the Revised Penal Code carries with it accessory
penalties (See: People vs. Cruda, 212 SCRA 125 [1992]).
Hence, the appropriate penalty prescribed by law for the crime of homicide in the case
at bar is the maximum period of reclusion temporal which is 17 years, 4 months and 1
day to 20 years. Applying the Indeterminate Sentence Law, the imposable penalty is ten
(10) years and one (1) day of prision mayor maximum as minimum, to seventeen (17)
years, four (4) months and one (1) day of reclusion temporal as maximum.
Wherefore, the decision appealed from is hereby MODIFIED to the extent that
appellant Alfredo Salvador is hereby declared guilty of the crime of homicide and is
hereby ordered to suffer the indeterminate sentence of ten (10) years and one (1) day of
prision mayor as minimum to seventeen (17) years, four (4) months and one (1) day of
reclusion temporal as maximum. The civil indemnity is hereby increased to P50,000.00
in line with current jurisprudence.
SO ORDERED.
Feliciano, Romero, Melo and Vitug, JJ., concur.

Then the case was tried in one of the branches of the Court of First Instance of Manila
presided over by the honorable Buenaventura Ocampo who, after the submission of the
evidence of the prosecution and the defense, rendered judgment as above stated.
In this connection it should be stated that, at the beginning of the trial and before
arraignment, counsel de oficio for the accused moved that the mental condition of
Guillen be examined. The court, notwithstanding that it had found out from the answers
of the accused to questions propounded to him in order to test the soundness of his
mind, that he was not suffering from any mental derangement, ordered that Julio
Guillen be confined for Hospital, there to be examined by medical experts who should
report their findings accordingly. This was done, and, according to the report of the
board of medical experts, presided over by Dr. Fernandez of the National Psychopathic
Hospital, Julio Guillen was not insane. Said report (Exhibit L), under the heading
"Formulation and Diagnosis," at pages 13 and 14, reads:
G.R. No. L-1477

January 18, 1950

EN BANC

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.

JULIO GUILLEN, defendant-appellant.

Mariano A. Albert for appellant.

Office of the Solicitor General Felix Bautista Angelo and Solicitor Francisco A.
Carreon for appellee.

PER CURIAM, J.:

This case is before us for review of, and by virtue of appeal from, the judgment
rendered by the Court of First Instance of Manila in case No. 2746, whereby Julio
Guillen y Corpus, or Julio C. Guillen, is found guilty beyond reasonable doubt of the
crime of murder and multiple frustrated murder, as charged in the information, and is
sentenced to the penalty of death, to indemnify the of the deceased Simeon Valera (or
Barrela) in the sum of P2,000 and to pay the costs.
Upon arraignment the accused entered a plea of not guilty to the charges contained in
the information.

FORMULATION AND DIAGNOSIS

Julio C. Guillen was placed under constant observation since admission. There was not
a single moment during his whole 24 hours daily, that he was not under observation.
The motive behind the commission of the crime is stated above. The veracity of this
motivation was determined in the Narcosynthesis. That the narco-synthesis was
successful was checked up the day after the test. The narco-synthesis proved not only
reveal any conflict or complex that may explain a delusional or hallucinatory motive
behind the act.
Our observation and examination failed to elicit any sign or symptom of insanity in Mr.
Julio C. Guillen. He was found to be intelligent, always able to differentiate right from
wrong, fully aware of the nature of the crime he committed and is equally decided to
suffer for it in any manner or form.
His version of the circumstances of the crime, his conduct and conversation relative
thereto, the motives, temptations and provocations that preceded the act, were all those
of an individual with a sound mind.
On the other hand he is an man of strong will and conviction and once arriving at a
decision he executes, irrespective of consequences and as in this case, the commission
of the act at Plaza Miranda.
What is of some interest in the personality of Julio C. Guillen is his commission of
some overt acts. This is seen not only in the present instance, but sometime when an
employee in la Clementina Cigar Factory he engaged in a boxing bout Mr. Manzano, a
Span-wanted to abuse the women cigar makers, and felt it his duty to defend them. One

time he ran after a policeman with a knife in hand after being provoked to a fight
several times. He even challenged Congressman Nueno to a fight sometime before
when Mr. Nueno was running for a seat in the Municipal Board of the City of Manila,
after hearing him deliver one of his apparently outspoken speeches.
All these mean a defect in his personality characterized by a weakness of censorship
especially in relation to rationalization about the consequences of his acts.
In view of the above findings it is our considered opinion that Julio C. Guillen is not
insane but is an individual with a personality defect which in Psychiatry is termed,
Constitutional Psychopathic Inferiority.
Final Diagnosis
Not insane: Constitutional Psychopathic Inferiority, without psychosis.
In view of the above-quoted findings of the medical board, and notwithstanding the
contrary opinion of one Dr. Alvarez, who was asked by the defense to give his opinion
on the matter, the court ruled that Guillen, not being insane, could be tired, as he was
tired, for the offenses he committed on the date in question.
THE FACTS
Upon careful perusal of the evidence and the briefs submitted by counsel for the
accused, the Solicitor General and their respective memoranda, we find that there is no
disagreement between the prosecution and the defense, as to the essential facts which
caused the filing of the present criminal case against this accused. Those facts may be
stated as follows:
On the dates mentioned in this decision, Julio Guillen y Corpus, although not affirmed
with any particular political group, has voted for the defeated candidate in the
presidential elections held in 1946. Manuel A. Roxas, the successful candidate,
assumed the office of President of the Commonwealth and subsequently President of
the President of the Philippine Republic. According to Guillen, he became disappointed
in President Roxas for his alleged failure to redeem the pledges and fulfill the promises
made by him during the presidential election campaign; and his disappointment was
aggravated when, according to him, President Roxas, instead of looking after the
interest of his country, sponsored and campaigned for the approval of the so-called
"parity" measure. Hence he determined to assassinate the President.
After he had pondered for some time over the ways and means of assassinating
President Roxas, the opportunity presented itself on the night of March 10, 1947, when
at a popular meeting held by the Liberal Party at Plaza de Miranda, Quiapo, Manila

attended by a big crowd, President Roxas, accompanied by his wife and daughter and
surrounded by a number of ladies and gentlemen prominent in government and politics,
stood on a platform erected for that purpose and delivered his speech expounding and
trying to convince his thousand of listeners of the advantages to be gained by the
Philippines, should the constitutional amendment granting American citizens the same
rights granted to Filipino nationals be adopted.
Guillen had first intended to use a revolver for the accomplishment of his purpose, but
having lost said firearm, which was duly licensed, he thought of two hand grenades
which were given him by an American soldier in the early days of the liberation of
Manila in exchange for two bottles of whisky. He had likewise been weighing the
chances of killing President Roxas, either by going to Malacaan, or following his
intended victim in the latter's trips to provinces, for instance, to Tayabas (now Quezon)
where the President was scheduled to speak, but having encountered many difficulties,
he decided to carry out his plan at the pro-parity meeting held at Plaza de Miranda on
the night of March 10, 1947.
On the morning of that he went to the house of Amando Hernandez whom he requested
to prepare for him a document (Exhibit B), in accordance with their pervious
understanding in the preceding afternoon, when they met at the premises of the Manila
Jockey Club on the occasion of an "anti-parity" meeting held there. On account of its
materially in this case, we deem it proper to quote hereunder the contents of said
document. An English translation (Exhibit B-2) from its original Tagalog reads:
FOR THE SAKE OF A FREE PHILIPPINES
I am the only one responsible for what happened. I conceived it, I planned it, and I
carried it out all by myself alone. It took me many days and nights pondering over this
act, talking to my own conscience, to my God, until I reached my conclusion. It was
my duty.
I did not expected to live long; I only had on life to spare. And had I expected to lives
to spare, I would not have hesitated either ton sacrifice it for the sake of a principle
which was the welfare of the people.
Thousands have died in Bataan; many more have mourned the loss of their husbands,
of their sons, and there are millions now suffering. Their deeds bore no fruits; their
hopes were frustrated.
I was told by my conscience and by my God that there was a man to be blamed for all
this: he had deceived the people, he had astounded them with no other purpose than to
entice them; he even went to the extent of risking the heritage of our future generations.
For these reasons he should not continue any longer. His life would mean nothing as

compared with the welfare of eighteen million souls. And why should I not give up my
life too if only the good of those eighteen million souls.
These are the reasons which impelled me to do what I did and I am willing to bear up
the consequences of my act. I t matters not if others will curse me. Time and history
will show, I am sure, that I have only displayed a high degree of patriotism in my
performance of my said act.
Hurrah for a free Philippines.
Cheers for the happiness of every Filipino home.
May God pity on me.
Amen.
JULIO C. GUILLEN
A copy (Exhibit B-1) of the original in Tagalog (Exhibit B), made at the request of
Guillen by his nephew, was handed to him only at about 6 o'clock in the afternoon of
March 10, 1947, for which reason said Exhibit B-1 appears unsigned, because he was
in a hurry for that meeting at Plaza de Miranda.
When he reached Plaza de Miranda, Guillen was carrying two hand grenades concealed
in a paper bag which also contained peanuts. He buried one of the hand grenades
(Exhibit D), in a plant pot located close to the platform, and when he decided to carry
out his evil purpose he stood on the chair on which he had been sitting and, from a
distance of about seven meters, he hurled the grenade at the President when the latter
had just closed his speech, was being congratulated by Ambassador Romulo and was
about to leave the platform.
General Castaeda, who was on the platform, saw the smoking, hissing, grenade and
without losing his presence of mind, kicked it away from the platform, along the
stairway, and towards an open space where the general thought the grenade was likely
to do the least harm; and, covering the President with his body, shouted to the crowd
that everybody should lie down. The grenade fell to the ground and exploded in the
middle of a group of persons who were standing close to the platform. Confusion
ensued, and the crowd dispersed in a panic. It was found that the fragments of the
grenade had seriously injured Simeon Varela (or Barrela ) who died on the following
day as the result of mortal wounds caused by the fragments of the grenade (Exhibits F
and F-1) Alfredo Eva, Jose Fabio, Pedro Carrillo and Emilio Maglalang.

Guillen was arrested by members of the Police Department about two hours after the
occurrence. It appears that one Angel Garcia, who was one spectators at that meeting,
saw how a person who was standing next to him hurled an object at the platform and,
after the explosion, ran away towards a barber shop located near the platform at Plaza
de Miranda. Suspecting that person was the thrower of the object that exploded, Garcia
went after him and had almost succeeded in holding him, but Guillen offered stiff
resistance, got loose from Garcia and managed to escape. Garcia pursued him, but
some detectives, mistaking the former for the real criminal and the author of the
explosion, placed him under arrest. In the meantime, while the City Mayor and some
agents of the Manila Police Department were investigating the affair, one Manuel
Robles volunteered the information that the person with whom Angel Garcia was
wrestling was Julio Guillen; that he (Manuel Robles) was acquainted with Julio Guillen
for the previous ten years and had seen each other in the plaza a few moments previous
to the explosion.
The police operatives interrogated Garcia and Robles, and Julio Guillen was, within
two hours after the occurrence, found in his home at 1724 Juan Luna Street, Manila,
brought to the police headquarters and identified by Angel Garcia, as the same person
who hurled towards the platform the object which exploded and whom Garcia tried to
hold when he was running away.
During the investigation conducted by the police he readily admitted his responsibility,
although at the same time he tried to justify his action in throwing the bomb at
President Roxas. He also indicated to his captors the place where he had hidden his so
called last will quoted above and marked Exhibit B, which was then unsigned by him
and subsequently signed at the police headquarters.
Re-enacting the crime (Exhibit C), he pointed out to the police where he had buried
(Exhibit C-1) the other hand grenade (Exhibit D), and, in the presence of witnesses he
signed a statement which contained his answers to question propounded to him by
Major A. Quintos of the Manila Police, who investigated him soon after his arrest
(Exhibit E). From a perusal of his voluntary statement, we are satisfied that it tallies
exactly with the declarations and made by him on the witness stand during the trial of
this case.
THE ISSUES
In the brief submitted by counsel de oficio for this appellant, several errors are assigned
allegedly committed by the trial court, namely: first, "in finding the appellant guilty of
murder for the death of Simeon Varela"; second, "in declaring the appellant guilty of
the complex crime of murder and multiple frustrated murder"; third, "in applying subsection 1 of article 49 of the Revised Penal Code in determining the penalty to be
imposed upon the accused"; and fourth, "in considering the concurrence of the

aggravating circumstances of nocturnity and of contempt of public authorities in the

commission of crime."
The evidence for the prosecution, supported by the brazen statements made by the
accused, shows beyond any shadow of doubt that, when Guillen attended that meeting,
carrying with him two hand grenades, to put into execution his preconceived plan to
assassinate President Roxas, he knew fully well that, by throwing one of those two
hand grenades in his possession at President Roxas, and causing it to explode, he could
not prevent the persons who were around his main and intended victim from being
killed or at least injured, due to the highly explosive nature of the bomb employed by
him to carry out his evil purpose.
Guillen, testifying in his own behalf, in answer to questions propounded by the trial
judge (page 96 of transcript) supports our conclusion. He stated that he performed the
act voluntarily; that his purpose was to kill the President, but that it did not make any
difference to him if there were some people around the President when he hurled that
bomb, because the killing of those who surrounded the President was tantamount to
killing the President, in view of the fact that those persons, being loyal to the President
being loyal to the President, were identified with the latter. In other word, although it
was not his main intention to kill the persons surrounding the President, he felt no
conjunction in killing them also in order to attain his main purpose of killing the
President.
The facts do not support the contention of counsel for appellant that the latter is guilty
only of homicide through reckless imprudence in regard to the death of Simeon Varela
and of less serious physical injuries in regard to Alfredo Eva, Jose Fabio, Pedro Carrillo
and Emilio Maglalang, and that he should be sentenced to the corresponding penalties
for the different felonies committed, the sum total of which shall not exceed three times
the penalty to be imposed for the most serious crime in accordance with article 70 in
relation to article 74 of the Revised Penal Code.
In throwing hand grenade at the President with the intention of killing him, the
appellant acted with malice. He is therefore liable for all the consequences of his
wrongful act; for in accordance with article 4 of the Revised Penal Code, criminal
liability is incurred by any person committing felony (delito) although the wrongful act
done be different from that which he intended. In criminal negligence, the injury caused
to another should be unintentional, it being simply the incident of another act
performed without malice. (People vs. Sara, 55 Phil., 939.) In the words of Viada, "in
order that an act may be qualified as imprudence it is necessary that either malice nor
intention to cause injury should intervene; where such intention exists, the act should
qualified by the felony it has produced even though it may not have been the intention
of the actor to cause an evil of such gravity as that produced.' (Viada's Comments on
the Penal Code, vol. 7, 5th ed., p.7.) And, as held by this Court, a deliberate intent to do

an unlawful act is essentially inconsistent with the idea of reckless imprudence. (People
vs. Nanquil, 43 Phil., 232.) Where such unlawful act is wilfully done, a mistake in the
identity of the intended victim cannot be considered as reckless imprudence. (People
vs. Gona, 54 Phil., 605)
Squarely on the point by counsel is the following decision of the Supreme Court of
Spain:
Cuestion 62. Se presenta A, a las ocho de la noche, en el estanco de B a comprar
tabaco, y habiendose negado este a darselo al fiado, se retira a quel sin mediar entre
ambos disputa alguna; pero; trnscurrido un cuarto de hora, hallandose el estanquero
despachando a C, se oye la detonacion de un arma de fuego disparada por A desde la
calle, quedando muertos en el acto C y el estanquero; supuesta la no intencion en A de
matar a C y si solo al estanquero, cabe calificar la muerte de este de homicidio y la de c
de imprudencia temeraria? La Sala de lo Criminal de la Auudiencia de Granada lo
estimo asi, y condeno al procesado a catorse anos de reclusion por el homivcidio y a un
ao de prision correctional por la imprudencia. Aparte de que la muerte del estanquero
debio calificarse de assesinato y no de homicidio, por haberse ejecutado con aleviosa.
es evidente que la muerte de C, suponiendo que no se propusiera ejecutaria el
procesado, no pudo calificarse de imprudencia teme raria, sino que tambien debio
declararsele responsable de la misma, a tenor de lo puesto en este apartado ultimo del
articulo; y que siendo ambas muertes producidas por un solo hecho, o sea por un solo
disparo, debio imponerse al reo la pena del delito de asesinato en el grado maximo, a
tenor de lo dispuesto en el art. 90 del Codigo, o sea la pena de muerte. Se ve, pues,
claramente que en el antedicha sentencia, aparte de otros articulos del Codigo, se
infringio por la Sala la disposicion de este apartado ultimo del articulo muy
principalmente, y asi lo declaro el Tribunal Supremo en S. de 18 junio de 1872. (Gaceta
de 1,0 de agosto.) (I Viada, 5th Ed., p. 42.)
Article 48 of the Revised Penal Code provides as follows:
Art. 48. Penalty for Complex Crimes. When a single act constitutes two or more
grave or less grave felonies, or when an offense is a necessary means for committing
the other, the penalty for the most serious crime shall be imposed, the same to be
applied in its maximum period.
We think it is the above-quoted article and not paragraph 1 of article 49 that is
applicable. The case before us is clearly governed by the first clause of article 48
because by a single act, that a throwing highly explosive hand grenade at President
Roxas, the accused committed two grave felonies, namely: (1) murder, of which
Simeon Varela was the victim; and (2) multiple attempted murder, of which President
Roxas, Alfredo Eva, Jose Fabio, Pedro Carrillo and Emilio Maglalang were the injured
parties.

The killing of Simeon Varela was attended by the qualifying circumstance of treachery.
In the case of People vs. Mabug-at, supra, this court held that the qualifying
circumstance of treachery may be properly considered, even when the victim of the
attack was not the one whom the defendant intended to kill, if it appears from the
evidence that neither of the two persons could in any manner put up defense against the
attack, or become aware of it. In the same case it was held that the qualifying
circumstance of premeditation may not be properly taken into the account when the
person whom the defendant proposed to kill was different from the one who became his
victim.
There can be no question that the accused attempted to kill President Roxas by
throwing a hand grenade at him with the intention to kill him, thereby commencing the
commission of a felony by over acts, but he did not succeed in assassinating him "by
reason of some cause or accident other than his own spontaneous desistance." For the
same reason we qualify the injuries caused on the four other persons already named as
merely attempted and not frustrated murder.
In this connection, it should be stated that , although there is abundant proof that , in
violation of the provisions of article 148 of the Revised Penal Code, the accused
Guillen has committed among others the offense of assault upon a person in authority,
for in fact his efforts were directed towards the execution of his main purpose of
eliminating President Roxas for his failure to redeem his electoral campaign promises,
by throwing at him in his official capacity as the Chief Executive of the nation the hand
grenade in question, yet, in view of the appropriate allegation charging Guillen with the
commission of said offense, we shall refrain making a finding to that effect.
The complex crimes of murder and multiple attempted murder committed by the
accused with the single act of throwing a hand grenade at the President, was attended
by the various aggravating circumstances alleged in the information, without any
mitigating circumstance. But we do not deem it necessary to consider said aggravating
circumstances because in any event article 48 of the Revised Penal Code above-quoted
requires that the penalty for the most serious of said crimes be applied in its maximum
period. The penalty for murder is reclusion temporal in its maximum period to death.
(Art. 248.)
It is our painful duty to apply the law and mete out to the accused the extreme penalty
provided by it upon the facts and circumstances hereinabove narrated.
The sentence of the trial court being correct, we have no alternative but to affirm it, and
we hereby do so by a unanimous vote. The death sentence shall be executed in
accordance with article 81 of the Revised Penal Code, under authority of the Director
of Prisons, on such working day as the trial court may fix within 30 days from the date
the record shall have been remanded. It is so ordered.

Moran, C.J., Ozaeta, Paras, Pablo, Bengzon, Padilla, Tuason, Montemayor, Reyes and
Torres, JJ., concur.

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
G.R. No. 103119

October 21, 1992

SECOND DIVISION

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,

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.

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.

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:

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.

. . . 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 nonstatutory 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

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 of arresto
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.

Footnotes

1
People vs. Intod, C.A-G.R. No. 09205, August 14, 1991; Justice Fidel P. Purisima,
Ponente: Justices Eduardo R. Bengzon and Salome A. Montoya, concurring.
2
TSN, p. 4, July 24, 1986.
3
Records, p. 65.
4
Guevarra, Commentaries on the Revised Penal Code 15 (4th ed., 1946).
5
Albert, Ibid.
6
Albert, Ibid.
7
Albert, Ibid.
8
Albert, Ibid.
9
Grogorio and Feria, Comments on the Revised Penal Code 76 (Vol. I, 1st ed. 1958).
10
Reyes, The revised Penal Code, 90 (Vol. I, 11th ed., 1977).
11
Reyes, Ibid.
12
Reyes, Ibid.
13
U.S. vs. Berrigan, 482 F. 2nd. 171 (1973).
14
U.S. vs. Berrigan, Ibid.
15
Aquino, The Revised Penal Code, (Vol. I, 1987).
16
U.S. vs. Berrigan, supra, p. 13.
17
U.S. vs. Berrigan, Ibid.
18
21 L.R.A. 626 (1898).
19
21 L.R.A. N.S. 898 (1908).
20
17 S.W. 145 (1888).
21
71 S.W. 175 (1902).
22
U.S. vs. HENG AWKAK ROMAN, 39 L. Ed. 2d. 874 (1974).
23
565 F. Supp. 1416 (1983).

MEGA FOAM INTERNATIONAL INC., herein represented by JOSEPH

DYHENGCO Y CO, and as such had free access inside the aforesaid establishment,
with grave abuse of trust and confidence reposed upon them with intent to gain and
without the knowledge and consent of the owner thereof, did then and there willfully,
unlawfully and feloniously take, steal and deposited in their own account, Banco De
Oro Check No. 0132649 dated July 14, 1997 in the sum of P10,000.00, representing
payment made by customer Baby Aquino to the Mega Foam Int'l. Inc. to the damage
and prejudice of the latter in the aforesaid stated amount of P10,000.00.
G.R. No. 162540

July 13, 2009

CONTRARY TO LAW.[3]

THIRD DIVISION
The prosecution's evidence, which both the RTC and the CA found to be more
credible, reveals the events that transpired to be as follows.
GEMMA T. JACINTO, petitioner, vs.
PEOPLE OF THE PHILIPPINES, respondent.

DECISION

PERALTA, J.:

Before us is a petition for review on certiorari filed by petitioner Gemma T. Jacinto

seeking the reversal of the Decision[1] of the Court of Appeals (CA) in CA-G.R. CR
No. 23761 dated December 16, 2003, affirming petitioner's conviction of the crime of
Qualified Theft, and its Resolution[2] dated March 5, 2004 denying petitioner's motion
for reconsideration.
Petitioner, along with two other women, namely, Anita Busog de Valencia y Rivera and
Jacqueline Capitle, was charged before the Regional Trial Court (RTC) of Caloocan
City, Branch 131, with the crime of Qualified Theft, allegedly committed as follows:
That on or about and sometime in the month of July 1997, in Kalookan City, Metro
Manila, and within the jurisdiction of this Honorable Court, the above-named accused,
conspiring together and mutually helping one another, being then all employees of

In the month of June 1997, Isabelita Aquino Milabo, also known as Baby
Aquino, handed petitioner Banco De Oro (BDO) Check Number 0132649 postdated
July 14, 1997 in the amount of P10,000.00. The check was payment for Baby Aquino's
purchases from Mega Foam Int'l., Inc., and petitioner was then the collector of Mega
Foam. Somehow, the check was deposited in the Land Bank account of Generoso
Capitle, the husband of Jacqueline Capitle; the latter is the sister of petitioner and the
former pricing, merchandising and inventory clerk of Mega Foam.
Meanwhile, Rowena Ricablanca, another employee of Mega Foam, received a
phone call sometime in the middle of July from one of their customers, Jennifer
Sanalila. The customer wanted to know if she could issue checks payable to the
account of Mega Foam, instead of issuing the checks payable to CASH. Said customer
had apparently been instructed by Jacqueline Capitle to make check payments to Mega
Foam payable to CASH. Around that time, Ricablanca also received a phone call from
an employee of Land Bank, Valenzuela Branch, who was looking for Generoso Capitle.
The reason for the call was to inform Capitle that the subject BDO check deposited in
his account had been dishonored.
Ricablanca then phoned accused Anita Valencia, a former employee/collector of
Mega Foam, asking the latter to inform Jacqueline Capitle about the phone call from
Land Bank regarding the bounced check. Ricablanca explained that she had to call and
relay the message through Valencia, because the Capitles did not have a phone; but they
could be reached through Valencia, a neighbor and former co-employee of Jacqueline
Capitle at Mega Foam.

Valencia then told Ricablanca that the check came from Baby Aquino, and
instructed Ricablanca to ask Baby Aquino to replace the check with cash. Valencia also
told Ricablanca of a plan to take the cash and divide it equally into four: for herself,
Ricablanca, petitioner Jacinto and Jacqueline Capitle. Ricablanca, upon the advise of
Mega Foam's accountant, reported the matter to the owner of Mega Foam, Joseph
Dyhengco.

Only Ricablanca alighted from the jeep and entered the premises of Baby Aquino,
pretending that she was getting cash from Baby Aquino. However, the cash she
actually brought out from the premises was the P10,000.00 marked money previously
given to her by Dyhengco. Ricablanca divided the money and upon returning to the
jeep, gave P5,000.00 each to Valencia and petitioner. Thereafter, petitioner and
Valencia were arrested by NBI agents, who had been watching the whole time.

Thereafter, Joseph Dyhengco talked to Baby Aquino and was able to confirm that
the latter indeed handed petitioner a BDO check for P10,000.00 sometime in June 1997
as payment for her purchases from Mega Foam.[4] Baby Aquino further testified that,
sometime in July 1997, petitioner also called her on the phone to tell her that the BDO
check bounced.[5] Verification from company records showed that petitioner never
remitted the subject check to Mega Foam. However, Baby Aquino said that she had
already paid Mega Foam P10,000.00 cash in August 1997 as replacement for the
dishonored check.[6]

Petitioner and Valencia were brought to the NBI office where the Forensic
Chemist found fluorescent powder on the palmar and dorsal aspects of both of their
hands. This showed that petitioner and Valencia handled the marked money. The NBI
filed a criminal case for qualified theft against the two and one Jane Doe who was later
identified as Jacqueline Capitle, the wife of Generoso Capitle.

Generoso Capitle, presented as a hostile witness, admitted depositing the subject

BDO check in his bank account, but explained that the check came into his possession
when some unknown woman arrived at his house around the first week of July 1997 to
have the check rediscounted. He parted with his cash in exchange for the check
without even bothering to inquire into the identity of the woman or her address. When
he was informed by the bank that the check bounced, he merely disregarded it as he
didnt know where to find the woman who rediscounted the check.
Meanwhile, Dyhengco filed a Complaint with the National Bureau of
Investigation (NBI) and worked out an entrapment operation with its agents. Ten
pieces of P1,000.00 bills provided by Dyhengco were marked and dusted with
fluorescent powder by the NBI. Thereafter, the bills were given to Ricablanca, who
was tasked to pretend that she was going along with Valencia's plan.
On August 15, 2007, Ricablanca and petitioner met at the latter's house.
Petitioner, who was then holding the bounced BDO check, handed over said check to
Ricablanca. They originally intended to proceed to Baby Aquino's place to have the
check replaced with cash, but the plan did not push through. However, they agreed to
meet again on August 21, 2007.
On the agreed date, Ricablanca again went to petitioners house, where she met
petitioner and Jacqueline Capitle. Petitioner, her husband, and Ricablanca went to the
house of Anita Valencia; Jacqueline Capitle decided not to go with the group because
she decided to go shopping. It was only petitioner, her husband, Ricablanca and
Valencia who then boarded petitioner's jeep and went on to Baby Aquino's factory.

The defense, on the other hand, denied having taken the subject check and
presented the following scenario.
Petitioner admitted that she was a collector for Mega Foam until she resigned on
June 30, 1997, but claimed that she had stopped collecting payments from Baby Aquino
for quite some time before her resignation from the company. She further testified that,
on the day of the arrest, Ricablanca came to her mothers house, where she was staying
at that time, and asked that she accompany her (Ricablanca) to Baby Aquino's house.
Since petitioner was going for a pre-natal check-up at the Chinese General Hospital,
Ricablanca decided to hitch a ride with the former and her husband in their jeep going
to Baby Aquino's place in Caloocan City. She allegedly had no idea why Ricablanca
asked them to wait in their jeep, which they parked outside the house of Baby Aquino,
and was very surprised when Ricablanca placed the money on her lap and the NBI
agents arrested them.
Anita Valencia also admitted that she was the cashier of Mega Foam until she
resigned on June 30, 1997. It was never part of her job to collect payments from
customers. According to her, on the morning of August 21, 1997, Ricablanca called her
up on the phone, asking if she (Valencia) could accompany her (Ricablanca) to the
house of Baby Aquino. Valencia claims that she agreed to do so, despite her admission
during cross-examination that she did not know where Baby Aquino resided, as she had
never been to said house. They then met at the house of petitioner's mother, rode the
jeep of petitioner and her husband, and proceeded to Baby Aquino's place. When they
arrived at said place, Ricablanca alighted, but requested them to wait for her in the jeep.
After ten minutes, Ricablanca came out and, to her surprise, Ricablanca gave her
money and so she even asked, What is this? Then, the NBI agents arrested them.
The trial of the three accused went its usual course and, on October 4, 1999, the
RTC rendered its Decision, the dispositive portion of which reads:

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

Tubale De Jacinto y Latosa, Anita Busog De Valencia y Rivera and Jacqueline Capitle
GUILTY beyond reasonable doubt of the crime of QUALIFIED THEFT and each of
them is hereby sentenced to suffer imprisonment of FIVE (5) YEARS, FIVE (5)
MONTHS AND ELEVEN (11) DAYS, as minimum, to SIX (6) YEARS, EIGHT (8)
MONTHS AND TWENTY (20) DAYS, as maximum.
SO ORDERED.[7]
The three appealed to the CA and, on December 16, 2003, a Decision was
promulgated, the dispositive portion of which reads, thus:

IN VIEW OF THE FOREGOING, the decision of the trial court is

MODIFIED, in that:
(a) the sentence against accused Gemma Jacinto stands;
(b) the sentence against accused Anita Valencia is reduced to 4 months arresto mayor
medium.
(c) The accused Jacqueline Capitle is acquitted.

The prosecution tried to establish the following pieces of evidence to constitute

the elements of the crime of qualified theft defined under Article 308, in relation to
Article 310, both of the Revised Penal Code: (1) the taking of personal property - as
shown by the fact that petitioner, as collector for Mega Foam, did not remit the
customer's check payment to her employer and, instead, appropriated it for herself; (2)
said property belonged to another the check belonged to Baby Aquino, as it was her
payment for purchases she made; (3) the taking was done with intent to gain this is
presumed from the act of unlawful taking and further shown by the fact that the check
was deposited to the bank account of petitioner's brother-in-law; (4) it was done
without the owners consent petitioner hid the fact that she had received the check
payment from her employer's customer by not remitting the check to the company; (5)
it was accomplished without the use of violence or intimidation against persons, nor of
force upon things the check was voluntarily handed to petitioner by the customer, as
she was known to be a collector for the company; and (6) it was done with grave abuse
of confidence petitioner is admittedly entrusted with the collection of payments from
customers.

SO ORDERED.

However, as may be gleaned from the aforementioned Articles of the Revised

Penal Code, the personal property subject of the theft must have some value, as the
intention of the accused is to gain from the thing stolen. This is further bolstered by
Article 309, where the law provides that the penalty to be imposed on the accused is
dependent on the value of the thing stolen.

A Partial Motion for Reconsideration of the foregoing CA Decision was filed only for
petitioner Gemma Tubale Jacinto, but the same was denied per Resolution dated March
5, 2004.

In this case, petitioner unlawfully took the postdated check belonging to Mega
Foam, but the same was apparently without value, as it was subsequently dishonored.
Thus, the question arises on whether the crime of qualified theft was actually produced.

Hence, the present Petition for Review on Certiorari filed by petitioner alone,
assailing the Decision and Resolution of the CA. The issues raised in the petition are as
follows:
1.
Whether or not petitioner can be convicted of a crime not charged in the
information;
2.

Whether or not a worthless check can be the object of theft; and

3. Whether or not the prosecution has proved petitioner's guilt beyond

reasonable doubt.[8]
The petition deserves considerable thought.

The Court must resolve the issue in the negative.

Intod v. Court of Appeals[9] is highly instructive and applicable to the present
case. In Intod, the accused, intending to kill a person, peppered the latters bedroom
with bullets, but since the intended victim was not home at the time, no harm came to
him. The trial court and the CA held Intod guilty of attempted murder. But upon
review by this Court, he was adjudged guilty only of an impossible crime as defined
and penalized in paragraph 2, Article 4, in relation to Article 59, both of the Revised
Penal Code, because of the factual impossibility of producing the crime. Pertinent
portions of said provisions read as follows:
Article 4(2). Criminal Responsibility. - Criminal responsibility shall be
incurred:

xxxx

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 to ineffectual means. (emphasis supplied)
Article 59. Penalty to be imposed in case of failure to commit the crime
because the means employed or the aims sought are impossible. - When the person
intending to commit an offense has already performed the acts for the execution of the
same but nevertheless the crime was not produced by reason of the fact that the act
intended was by its nature one of impossible accomplishment or because the means
employed by such person are essentially inadequate to produce the result desired by
him, the court, having in mind the social danger and the degree of criminality shown by
the offender, shall impose upon him the penalty of arresto mayor or a fine ranging from
200 to 500 pesos.
Thus, the requisites of an impossible crime are: (1) that the act performed would
be an offense against persons or property; (2) that the act was done with evil intent; and
(3) that its accomplishment was inherently impossible, or the means employed was
either inadequate or ineffectual. The aspect of the inherent impossibility of
accomplishing the intended crime under Article 4(2) of the Revised Penal Code was
further explained by the Court in Intod[10] in this wise:
Under this article, the act performed by the offender cannot produce an
offense against persons 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.
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. There must be either (1) legal impossibility, or (2)
physical impossibility of accomplishing the intended act in order to qualify the act as
an impossible crime.
Legal impossibility occurs where the intended acts, even if completed,
would not amount to a crime.
xxxx

The impossibility of killing a person already dead 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. x x x [11]
In Intod, the Court went on to give an example of an offense that involved factual
impossibility, i.e., a man puts his hand in the coat pocket of another with the intention
to steal the latter's wallet, but gets nothing since the pocket is empty.
Herein petitioner's case is closely akin to the above example of factual
impossibility given in Intod.
In this case, petitioner performed all the acts to
consummate the crime of qualified theft, which is a crime against property. Petitioner's
evil intent cannot be denied, as the mere act of unlawfully taking the check meant for
Mega Foam showed her intent to gain or be unjustly enriched. Were it not for the fact
that the check bounced, she would have received the face value thereof, which was not
rightfully hers. Therefore, it was only due to the extraneous circumstance of the check
being unfunded, a fact unknown to petitioner at the time, that prevented the crime from
being produced. The thing unlawfully taken by petitioner turned out to be absolutely
worthless, because the check was eventually dishonored, and Mega Foam had received
the cash to replace the value of said dishonored check.
The fact that petitioner was later entrapped receiving the P5,000.00 marked
money, which she thought was the cash replacement for the dishonored check, is of no
moment. The Court held in Valenzuela v. People[12] that under the definition of theft
in Article 308 of the Revised Penal Code, there is only one operative act of execution
by the actor involved in theft the taking of personal property of another. Elucidating
further, the Court held, thus:
x x x Parsing through the statutory definition of theft under Article 308, there
is one apparent answer provided in the language of the law that theft is already
produced upon the tak[ing of] personal property of another without the latters
consent.
xxxx

x x x when is the crime of theft produced? There would be all but certain
unanimity in the position that theft is produced when there is deprivation of personal
property due to its taking by one with intent to gain. Viewed from that perspective, it is
immaterial to the product of the felony that the offender, once having committed all the
acts of execution for theft, is able or unable to freely dispose of the property stolen
since the deprivation from the owner alone has already ensued from such acts of
execution. x x x

xxxx

x x x we have, after all, held that unlawful taking, or apoderamiento, is

deemed complete from the moment the offender gains possession of the thing, even if
he has no opportunity to dispose of the same. x x x
x x x Unlawful taking, which is the deprivation of ones personal property, is
the element which produces the felony in its consummated stage. x x x [13]
From the above discussion, there can be no question that as of the time that petitioner
took possession of the check meant for Mega Foam, she had performed all the acts to
consummate the crime of theft, had it not been impossible of accomplishment in this
case. The circumstance of petitioner receiving the P5,000.00 cash as supposed
replacement for the dishonored check was no longer necessary for the consummation of
the crime of qualified theft. Obviously, the plan to convince Baby Aquino to give cash
as replacement for the check was hatched only after the check had been dishonored by
the drawee bank. Since the crime of theft is not a continuing offense, petitioner's act of
receiving the cash replacement should not be considered as a continuation of the theft.
At most, the fact that petitioner was caught receiving the marked money was merely
corroborating evidence to strengthen proof of her intent to gain.
Moreover, the fact that petitioner further planned to have the dishonored check
replaced with cash by its issuer is a different and separate fraudulent scheme.
Unfortunately, since said scheme was not included or covered by the allegations in the
Information, the Court cannot pronounce judgment on the accused; otherwise, it would
violate the due process clause of the Constitution. If at all, that fraudulent scheme
could have been another possible source of criminal liability.
IN VIEW OF THE FOREGOING, the petition is GRANTED. The Decision of
the Court of Appeals, dated December 16, 2003, and its Resolution dated March 5,
2004, are MODIFIED. Petitioner Gemma T. Jacinto is found GUILTY of an
IMPOSSIBLE CRIME as defined and penalized in Articles 4, paragraph 2, and 59 of
the Revised Penal Code, respectively. Petitioner is sentenced to suffer the penalty of
six (6) months of arrresto mayor, and to pay the costs.

SO ORDERED.

[1]
Penned by Associate Justice Mario L. Guaria III, with Associate Justices Martin S.
Villarama, Jr. and Jose C. Reyes, Jr., concurring; rollo, pp. 70-77.
[2] Id. at 86.
[3] Records, p. 107.
[4] TSN, February 11, 1998, p. 8.
[5] Id. at 14.
[6]
TSN, February 11, 1998, pp. 9-10.
[7]
Rollo, p. 51.
[8] Id. at 128.
[9] G.R. No. 103119, October 21, 1992, 215 SCRA 52.
[10]
Supra.
[11]
Id. at 57-58.
[12]
G.R. No. 160188, June 21, 2007, 525 SCRA 306, 324 .
[13] Id. at 327, 343-345.

was paid by the latter. The writing made by Ramos at the back of the
check was to the effect that he was assigning only P30000 of the
value of the document with an instruction to the bank to pay P30000
to Montinola and to deposit the balance to Ramos's credit. This
writing was, however, mysteriously obliterated and in its place, a
supposed indorsement appearing on the back of the check was made
for the whole amount of the check. At the time of the transfer of this
check to Montinola, the check was long overdue by about 2-1/2
years.
Montinola instituted an action against the PNB and the Provincial
Treasurer of Misamis Oriental to collect the sum of P100,000, the
amount of the aforesaid check. There now appears on the face of said
check the words in parenthesis "Agent, Phil. National Bank" under the
signature of Laya purportedly showing that Laya issued the check as
agent of the Philippine National Bank.
Issue: Whether the words, 'Agent, Phil, National Bank' were added
after Laya had issued the check and thus constitutes material
alteration which discharges the instrument.

Montinola v. PNB, 1951

FACTS: Ramos, as a disbursing officer of an army division of the
USAFE, made cash advancements w/ the Provincial Treasurer of
Lanao. In exchange, the Provl Treasurer of Lanao gave him a
P500,000 check. Thereafter, Ramos presented the check to Laya for
encashment. Laya in his capacity as Provincial Treasurer of Misamis
Oriental as drawer, issued a check to Ramos in the sum of P100000,
on the Philippines National Bank as drawee; the P400000 value of the
check was paid in military notes.
Ramos was unable to encash the said check for he was captured by
the Japanese. But after his release, he sold P30000 of the check to
Montinola for P90000 Japanese Military notes, of which only P45000

HELD: Yes. The words "Agent, Phil. National Bank" now appearing on
the face of the check were added or placed in the instrument after it
was issued by the Provincial Treasurer Laya to Ramos. The check was
issued by only as Provincial Treasurer and as an official of the
Government, which was under obligation to provide the USAFE with
advance funds, and not as agent of the bank, which had no such
obligation. The addition of those words was made after the check had
been transferred by Ramos to
Montinola. The insertion of the words "Agent, Phil. National Bank,"
which converts the bank from a mere drawee to a drawer and
therefore changes its liability, constitutes a material alteration of the
instrument without the consent of the parties liable thereon, and so
discharges the instrument.
State Investment House vs. CA, 1993
Facts: Nora B. Moulic issued to Corazon Victoriano checks, as
security for pieces of jewelry sold on commission. Victoriano
negotiated the checks to the State Investment House Inc. (SIHI).
Moulic failed to sell the pieces of jewelry, so he returned them to the
payee before the maturity of the checks. The checks, however, could

not be retrieved as they had already been negotiated. Before the

checks maturity dates, Moulic withdrew her funds from the drawee
bank. Upon presentment of the checks for payment, they were
dishonored for insufficiency of funds. SIHI sued to recover the value
of the checks.
Issue: Whether the personal defense of failure or absence of
consideration is available, or conversely, whether SIHI is a holder in
due course.
Held: On their faces, the post-dated checks were complete and
regular; SIHI bought the checks from the payee (Victoriano) before
their due dates; SIHI took the checks in good faith and for value,
albeit at a discounted price; and SIHI was never informed not made
aware that the checks were merely issued to payee as security and
not for value. Complying with the requisites of Section 52 of the
Negotiable Instruments Law, SIHI is a holder in due course. As such, it
holds the instruments free from any defect of title of prior parties,
and from defenses available to prior parties among themselves. SIHI

may enforce full payment of the checks. The defense of failure or

absence of consideration is not available as SIHI was not privy to the
purpose for which the checks were issued.
That the post-dated checks were merely issued as security is not a
ground for the discharge of the instrument as against a holder in due
course. It is not one of the grounds outlined in Section 119 of the
Negotiable Instrument Law, for the instrument to be discharged.
It must be noted that the drawing and negotiation of a check have
certain effects aside from the transfer of title or the incurring of
liability in regard to the instrument by the transferor. The holder who
takes the negotiated paper makes a contract with the parties on the
face of the instrument. There is an implied representation that funds
or credit are available for the payment of the instrument in the bank
upon which it is drawn. Consequently, the withdrawal of the money
from the drawee bank to avoid liability on the checks cannot
prejudice the rights of holders in due course.
The drawer, Moulic, is liable to the holder in due course, SIHI.