[G.R. No. 153559.

June 8, 2004]
PEOPLE OF THE PHILIPPINES, appellee,
COMADRE and DANILO LOZANO, appellants.

vs.

ANTONIO

COMADRE,

GEORGE

DECISION
PER CURIAM:
Appellants Antonio Comadre, George Comadre and Danilo Lozano were charged with Murder
with Multiple Frustrated Murder in an information which reads:
That on or about the 6th of August 1995, at Brgy. San Pedro, Lupao, Nueva Ecija, Philippines,
and within the jurisdiction of this Honorable Court, the above-named accused, conspiring,
confederating and mutually helping one another, with intent to kill and by means of
treachery and evident premeditation, availing of nighttime to afford impunity, and with the
use of an explosive, did there and then willfully, unlawfully and feloniously lob a hand
grenade that landed and eventually exploded at the roof of the house of Jaime Agbanlog
trajecting deadly shrapnels that hit and killed one ROBERT AGBANLOG, per the death
certificate, and causing Jerry Bullanday, Jimmy Wabe, Lorenzo Eugenio, Rey Camat, Emelita
Agbanlog and Elena Agbanlog to suffer shrapnel wounds on their bodies, per the medical
certificates; thus, to the latter victims, the accused commenced all the acts of execution
that would have produced the crime of Multiple Murder as consequences thereof but
nevertheless did not produce them by reason of the timely and able medical and surgical
interventions of physicians, to the damage and prejudice of the deceaseds heirs and the
other victims.
CONTRARY TO LAW.1[1]
On arraignment, appellants pleaded not guilty. 2[2] Trial on the merits then ensued.
As culled from the records, at around 7:00 in the evening of August 6, 1995, Robert
Agbanlog, Jimmy Wabe, Gerry Bullanday, 3[3] Rey Camat and Lorenzo Eugenio were having a
drinking spree on the terrace of the house of Roberts father, Barangay Councilman Jaime
Agbanlog, situated in Barangay San Pedro, Lupao, Nueva Ecija. Jaime Agbanlog was seated
on the banister of the terrace listening to the conversation of the companions of his son. 4[4]
As the drinking session went on, Robert and the others noticed appellants Antonio Comadre,
George Comadre and Danilo Lozano walking. The three stopped in front of the house. While
his companions looked on, Antonio suddenly lobbed an object which fell on the roof of the
terrace. Appellants immediately fled by scaling the fence of a nearby school. 5[5]
The object, which turned out to be a hand grenade, exploded ripping a hole in the roof of
the house. Robert Agbanlog, Jimmy Wabe, Gerry Bullanday, Rey Camat and Lorenzo Eugenio
were hit by shrapnel and slumped unconscious on the floor. 6[6] They were all rushed to the

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San Jose General Hospital in Lupao, Nueva Ecija for medical treatment. However, Robert
Agbanlog died before reaching the hospital. 7[7]
Dr. Tirso de los Santos, the medico-legal officer who conducted the autopsy on the cadaver
of Robert Agbanlog, certified that the wounds sustained by the victim were consistent with
the injuries inflicted by a grenade explosion and that the direct cause of death was
hypovolemic shock due to hand grenade explosion. 8[8] The surviving victims, Jimmy Wabe,
Rey Camat, Jaime Agbanlog and Gerry Bullanday sustained shrapnel injuries. 9[9]
SPO3 John Barraceros of the Lupao Municipal Police Station, who investigated the scene of
the crime, recovered metallic fragments at the terrace of the Agbanlog house. These
fragments were forwarded to the Explosive Ordinance Disposal Division in Camp Crame,
Quezon City, where SPO2 Jesus Q. Mamaril, a specialist in said division, identified them as
shrapnel of an MK2 hand grenade.10[10]
Denying the charges against him, appellant Antonio Comadre claimed that on the night of
August 6, 1995, he was with his wife and children watching television in the house of his
father, Patricio, and his brother, Rogelio. He denied any participation in the incident and
claimed that he was surprised when three policemen from the Lupao Municipal Police
Station went to his house the following morning of August 7, 1995 and asked him to go with
them to the police station, where he has been detained since. 11[11]
Appellant George Comadre, for his part, testified that he is the brother of Antonio Comadre
and the brother-in-law of Danilo Lozano. He also denied any involvement in the grenadethrowing incident, claiming that he was at home when it happened. He stated that he is a
friend of Rey Camat and Jimmy Wabe, and that he had no animosity towards them
whatsoever. Appellant also claimed to be in good terms with the Agbanlogs so he has no
reason to cause them any grief.12[12]
Appellant Danilo Lozano similarly denied any complicity in the crime. He declared that he
was at home with his ten year-old son on the night of August 6, 1995. He added that he did
not see Antonio and George Comadre that night and has not seen them for quite sometime,
either before or after the incident. Like the two other appellants, Lozano denied having any
misunderstanding with Jaime Agbanlog, Robert Agbanlog and Jimmy Wabe. 13[13]
Antonios father, Patricio, and his wife, Lolita, corroborated his claim that he was at home
watching television with them during the night in question. 14[14] Josie Comadre, Georges
wife, testified that her husband could not have been among those who threw a hand
grenade at the house of the Agbanlogs because on the evening of August 6, 1995, they
were resting inside their house after working all day in the farm. 15[15]
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After trial, the court a quo gave credence to the prosecutions evidence and convicted
appellants of the complex crime of Murder with Multiple Attempted Murder, 16[16] the
dispositive portion of which states:
WHEREFORE, in view of the foregoing, judgment is hereby rendered:
1.Finding accused Antonio Comadre, George Comadre and Danilo Lozano GUILTY
beyond reasonable doubt of the complex crime of Murder with Multiple Attempted
Murder and sentencing them to suffer the imposable penalty of death;
2.

Ordering Antonio Comadre, George Comadre and Danilo Lozano to pay jointly and
severally the heirs of Robert Agbanlog P50,000.00 as indemnification for his death,
P35,000.00 as compensatory damages and P20,000.00 as moral damages;

3.

Ordering accused Antonio Comadre, George Comadre and Danilo Lozano to pay
jointly and severally Jimmy Wabe, Rey Camat, Gerry Bullanday and Jaime Agbanlog
P30,000.00 as indemnity for their attempted murder.

Costs against the accused.

SO ORDERED.
Hence, this automatic review pursuant to Article 47 of the Revised Penal Code, as amended.
Appellants contend that the trial court erred: (1) when it did not correctly and judiciously
interpret and appreciate the evidence and thus, the miscarriage of justice was obviously
omnipresent; (2) when it imposed on the accused-appellants the supreme penalty of death
despite the evident lack of the quantum of evidence to convict them of the crime charged
beyond reasonable doubt; and (3) when it did not apply the law and jurisprudence for the
acquittal of the accused-appellants of the crime charged. 17[17]
Appellants point to the inconsistencies in the sworn statements of Jimmy Wabe, Rey Camat,
Lorenzo Eugenio and Gerry Bullanday in identifying the perpetrators. Wabe, Camat and
Eugenio initially executed a Sinumpaang Salaysay on August 7, 1995 at the hospital
wherein they did not categorically state who the culprit was but merely named Antonio
Comadre as a suspect. Gerry Bullanday declared that he suspected Antonio Comadre as one
of the culprits because he saw the latters ten year-old son bring something in the nearby
store before the explosion occurred.
On August 27, 1995, or twenty days later, they went to the police station to give a more
detailed account of the incident, this time identifying Antonio Comadre as the perpetrator
together with George Comadre and Danilo Lozano.
A closer scrutiny of the records shows that no contradiction actually exists, as all sworn
statements pointed to the same perpetrators, namely, Antonio Comadre, George Comadre
and Danilo Lozano. Moreover, it appears that the first statement was executed a day after
the incident, when Jimmy Wabe, Rey Camat and Lorenzo Eugenio were still in the hospital
for the injuries they sustained. Coherence could not thus be expected in view of their
condition. It is therefore not surprising for the witnesses to come up with a more exhaustive
account of the incident after they have regained their equanimity. The lapse of twenty days
between the two statements is immaterial because said period even helped them recall
some facts which they may have initially overlooked.
Witnesses cannot be expected to remember all the details of the harrowing event which
unfolded before their eyes. Minor discrepancies might be found in their testimony, but they
do not damage the essential integrity of the evidence in its material whole, nor should they
reflect adversely on the witness credibility as they erase suspicion that the same was
perjured.18[18] Honest inconsistencies on minor and trivial matters serve to strengthen

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rather than destroy the credibility of a witness to a crime, especially so when, as in the
instant case, the crime is shocking to the conscience and numbing to the senses. 19[19]
Moreover, it was not shown that witnesses Jimmy Wabe, Rey Camat, Lorenzo Eugenio and
Gerry Bullanday had any motive to testify falsely against appellants. Absent evidence
showing any reason or motive for prosecution witnesses to perjure, the logical conclusion is
that no such improper motive exists, and their testimony is thus worthy of full faith and
credit.
The trial court is likewise correct in disregarding appellants defense of alibi and denial. For
the defense of alibi to prosper, the accused must prove not only that he was at some other
place at the time of the commission of the crime but also that it was physically impossible
for him to be at the locus delicti or within its immediate vicinity.20[20]
Apart from testifying with respect to the distance of their houses from that of Jaime
Agbanlogs residence, appellants were unable to give any explanation and neither were they
able to show that it was physically impossible for them to be at the scene of the crime.
Hence, the positive identification of the appellants by eyewitnesses Jimmy Wabe, Jaime
Agbanlog, Rey Camat and Gerry Bullanday prevails over their defense of alibi and denial. 21
[21]
It was established that prior to the grenade explosion, Rey Camat, Jaime Agbanlog, Jimmy
Wabe and Gerry Bullanday were able to identify the culprits, namely, appellants Antonio
Comadre, George Comadre and Danilo Lozano because there was a lamppost in front of the
house and the moon was bright.22[22]
Appellants argument that Judge Bayani V. Vargas, the Presiding Judge of the Regional Trial
Court of San Jose City, Branch 38 erred in rendering the decision because he was not the
judge who heard and tried the case is not well taken.
It is not unusual for a judge who did not try a case to decide it on the basis of the record for
the trial judge might have died, resigned, retired, transferred, and so forth. 23[23] As far back
as the case of Co Tao v. Court of Appeals24[24] we have held: The fact that the judge who
heard the evidence is not the one who rendered the judgment and that for that reason the
latter did not have the opportunity to observe the demeanor of the witnesses during the
trial but merely relied on the records of the case does not render the judgment erroneous.
This rule had been followed for quite a long time, and there is no reason to go against the
principle now.25[25]
However, the trial courts finding of conspiracy will have to be reassessed. The undisputed
facts show that when Antonio Comadre was in the act of throwing the hand grenade,
George Comadre and Danilo Lozano merely looked on without uttering a single word of
encouragement or performed any act to assist him. The trial court held that the mere
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presence of George Comadre and Danilo Lozano provided encouragement and a sense of
security to Antonio Comadre, thus proving the existence of conspiracy.
We disagree.
Similar to the physical act constituting the crime itself, the elements of conspiracy must be
proven beyond reasonable doubt. Settled is the rule that to establish conspiracy, evidence
of actual cooperation rather than mere cognizance or approval of an illegal act is required. 26
[26]
A conspiracy must be established by positive and conclusive evidence. It must be shown to
exist as clearly and convincingly as the commission of the crime itself. Mere presence of a
person at the scene of the crime does not make him a conspirator for conspiracy transcends
companionship.27[27]
The evidence shows that George Comadre and Danilo Lozano did not have any participation
in the commission of the crime and must therefore be set free. Their mere presence at the
scene of the crime as well as their close relationship with Antonio are insufficient to
establish conspiracy considering that they performed no positive act in furtherance of the
crime.
Neither was it proven that their act of running away with Antonio was an act of giving moral
assistance to his criminal act. The ratiocination of the trial court that their presence
provided encouragement and sense of security to Antonio, is devoid of any factual basis.
Such finding is not supported by the evidence on record and cannot therefore be a valid
basis of a finding of conspiracy.
Time and again we have been guided by the principle that it would be better to set free ten
men who might be probably guilty of the crime charged than to convict one innocent man
for a crime he did not commit. 28[28] There being no conspiracy, only Antonio Comadre must
answer for the crime.
Coming now to Antonios liability, we find that the trial court correctly ruled that treachery
attended the commission of the crime. For treachery to be appreciated two conditions must
concur: (1) the means, method and form of execution employed gave the person attacked
no opportunity to defend himself or retaliate; and (2) such means, methods and form of
execution was deliberately and consciously adopted by the accused. Its essence lies in the
adoption of ways to minimize or neutralize any resistance, which may be put up by the
offended party.
Appellant lobbed a grenade which fell on the roof of the terrace where the unsuspecting
victims were having a drinking spree. The suddenness of the attack coupled with the
instantaneous combustion and the tremendous impact of the explosion did not afford the
victims sufficient time to scamper for safety, much less defend themselves; thus insuring
the execution of the crime without risk of reprisal or resistance on their part. Treachery
therefore attended the commission of the crime.
It is significant to note that aside from treachery, the information also alleges the use of an
explosive29[29] as an aggravating circumstance. Since both attendant circumstances can
qualify the killing to murder under Article 248 of the Revised Penal Code, 30[30] we should
determine which of the two circumstances will qualify the killing in this case.
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When the killing is perpetrated with treachery and by means of explosives, the latter shall
be considered as a qualifying circumstance. Not only does jurisprudence 31[31] support this
view but also, since the use of explosives is the principal mode of attack, reason dictates
that this attendant circumstance should qualify the offense instead of treachery which will
then be relegated merely as a generic aggravating circumstance. 32[32]
Incidentally, with the enactment on June 6, 1997 of Republic Act No. 8294 33[33] which also
considers the use of explosives as an aggravating circumstance, there is a need to make
the necessary clarification insofar as the legal implications of the said amendatory law vis-vis the qualifying circumstance of by means of explosion under Article 248 of the Revised
Penal Code are concerned. Corollary thereto is the issue of which law should be applied in
the instant case.
R.A. No. 8294 was a reaction to the onerous and anachronistic penalties imposed under the
old illegal possession of firearms law, P.D. 1866, which prevailed during the tumultuous
years of the Marcos dictatorship. The amendatory law was enacted, not to decriminalize
illegal possession of firearms and explosives, but to lower their penalties in order to
rationalize them into more acceptable and realistic levels. 34[34]
This legislative intent is conspicuously reflected in the reduction of the corresponding
penalties for illegal possession of firearms, or ammunitions and other related crimes under
the amendatory law. Under Section 2 of the said law, the penalties for unlawful possession
of explosives are also lowered. Specifically, when the illegally possessed explosives are
used to commit any of the crimes under the Revised Penal Code, which result in the death
of a person, the penalty is no longer death, unlike in P.D. No. 1866, but it shall be
considered only as an aggravating circumstance. Section 3 of P.D. No. 1866 as amended by
Section 2 of R.A. 8294 now reads:
Section 2. Section 3 of Presidential Decree No. 1866, as amended, is hereby further
amended to read as follows:
Section 3. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Explosives.
The penalty of prision mayor in its maximum period to reclusion temporal and a fine of not
less than Fifty thousand pesos (P50,000.00) shall be imposed upon any person who shall
unlawfully manufacture, assemble, deal in, acquire, dispose or possess hand grenade(s),
rifle grenade(s), and other explosives, including but not limited to pillbox, molotov cocktail
bombs, fire bombs, or other incendiary devices capable of producing destructive effect on
contiguous objects or causing injury or death to any person.
When a person commits any of the crimes defined in the Revised Penal Code or
special law with the use of the aforementioned explosives, detonation agents or
incendiary devises, which results in the death of any person or persons, the use
of such explosives, detonation agents or incendiary devices shall be considered
as an aggravating circumstance. (shall be punished with the penalty of death is
DELETED.)
xxx

xxx

x x x.

With the removal of death as a penalty and the insertion of the term xxx as an aggravating
circumstance, the unmistakable import is to downgrade the penalty for illegal possession of
explosives and consider its use merely as an aggravating circumstance.
Clearly, Congress intended R.A. No. 8294 to reduce the penalty for illegal possession of
firearms and explosives. Also, Congress clearly intended RA No. 8294 to consider as
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aggravating circumstance, instead of a separate offense, illegal possession of firearms and

explosives when such possession is used to commit other crimes under the Revised Penal
Code.
It must be made clear, however, that RA No. 8294 did not amend the definition of murder
under Article 248, but merely made the use of explosives an aggravating circumstance
when resorted to in committing any of the crimes defined in the Revised Penal Code. The
legislative purpose is to do away with the use of explosives as a separate crime and to
make such use merely an aggravating circumstance in the commission of any crime already
defined in the Revised Penal Code. Thus, RA No. 8294 merely added the use of unlicensed
explosives as one of the aggravating circumstances specified in Article 14 of the Revised
Penal Code. Like the aggravating circumstance of explosion in paragraph 12, evident
premeditation in paragraph 13, or treachery in paragraph 16 of Article 14, the new
aggravating circumstance added by RA No. 8294 does not change the definition of murder
in Article 248.
Nonetheless, even if favorable to the appellant, R.A. No. 8294 still cannot be made
applicable in this case. Before the use of unlawfully possessed explosives can be properly
appreciated as an aggravating circumstance, it must be adequately established that the
possession was illegal or unlawful, i.e., the accused is without the corresponding authority
or permit to possess. This follows the same requisites in the prosecution of crimes involving
illegal possession of firearm35[35] which is a kindred or related offense under P.D. 1866, as
amended. This proof does not obtain in the present case. Not only was it not alleged in the
information, but no evidence was adduced by the prosecution to show that the possession
by appellant of the explosive was unlawful.
It is worthy to note that the above requirement of illegality is borne out by the provisions of
the law itself, in conjunction with the pertinent tenets of legal hermeneutics.
A reading of the title 36[36] of R.A. No. 8294 will show that the qualifier illegal/unlawful
...possession is followed by of firearms, ammunition, or explosives or instruments...
Although the term ammunition is separated from explosives by the disjunctive word or, it
does not mean that explosives are no longer included in the items which can be
illegally/unlawfully possessed. In this context, the disjunctive word or is not used to
separate but to signify a succession or to conjoin the enumerated items together. 37[37]
Moreover, Section 2 of R.A. 8294, 38[38] subtitled: Section 3. Unlawful Manufacture, Sale,
Acquisition, Disposition or Possession of Explosives, clearly refers to the unlawful
manufacture, sale, or possession of explosives.
What the law emphasizes is the acts lack of authority. Thus, when the second paragraph of
Section 3, P.D. No. 1866, as amended by RA No. 8294 speaks of the use of the
aforementioned explosives, etc. as an aggravating circumstance in the commission of
crimes, it refers to those explosives, etc. unlawfully manufactured, assembled, dealt in,
acquired, disposed or possessed mentioned in the first paragraph of the same section. What
is per se aggravating is the use of unlawfully manufactured or possessed explosives. The
mere use of explosives is not.
The information in this case does not allege that appellant Antonio Comadre had unlawfully
possessed or that he had no authority to possess the grenade that he used in the killing and
attempted killings. Even if it were alleged, its presence was not proven by the prosecution
beyond reasonable doubt. Rule 110 of the 2000 Revised Rules on Criminal Procedure
requires the averment of aggravating circumstances for their application. 39[39]

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The inapplicability of R.A. 8294 having been made manifest, the crime committed is Murder
committed by means of explosion in accordance with Article 248 (3) of the Revised Penal
Code. The same, having been alleged in the Information, may be properly considered as
appellant was sufficiently informed of the nature of the accusation against him. 40[40]
The trial court found appellant guilty of the complex crime of murder with multiple
attempted murder under Article 48 of the Revised Penal Code, which provides:
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 of committing the other, the
penalty for the most serious crime shall be imposed, the same to be applied in its maximum
period.
The underlying philosophy of complex crimes in the Revised Penal Code, which follows the
pro reo principle, is intended to favor the accused by imposing a single penalty irrespective
of the crimes committed. The rationale being, that the accused who commits two crimes
with single criminal impulse demonstrates lesser perversity than when the crimes are
committed by different acts and several criminal resolutions.
The single act by appellant of detonating a hand grenade may quantitatively constitute a
cluster of several separate and distinct offenses, yet these component criminal offenses
should be considered only as a single crime in law on which a single penalty is imposed
because the offender was impelled by a single criminal impulse which shows his lesser
degree of perversity.41[41]
Under the aforecited article, when a single act constitutes two or more grave or less grave
felonies the penalty for the most serious crime shall be imposed, the same to be applied in
its maximum period irrespective of the presence of modifying circumstances, including the
generic aggravating circumstance of treachery in this case. 42[42] Applying the aforesaid
provision of law, the maximum penalty for the most serious crime (murder) is death. The
trial court, therefore, correctly imposed the death penalty.
Three justices of the Court, however, continue to maintain the unconstitutionality of R.A.
7659 insofar as it prescribes the death penalty. Nevertheless, they submit to the ruling of
the majority to the effect that the law is constitutional and that the death penalty can be
lawfully imposed in the case at bar.
Finally, the trial court awarded to the parents of the victim Robert Agbanlog civil indemnity
in the amount of P50,000.00, P35,000.00 as compensatory damages and P20,000.00 as
moral damages. Pursuant to existing jurisprudence 43[43] the award of civil indemnity is
proper. However, the actual damages awarded to the heirs of Robert Agbanlog should be
modified, considering that the prosecution was able to substantiate only the amount of
P18,000.00 as funeral expenses.44[44]
The award of moral damages is appropriate there being evidence to show emotional
suffering on the part of the heirs of the deceased, but the same must be increased to
P50,000.00 in accordance with prevailing judicial policy. 45[45]

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With respect to the surviving victims Jaime Agbanlog, Jimmy Wabe, Rey Camat and Gerry
Bullanday, the trial court awarded P30,000.00 each for the injuries they sustained. We find
this award inappropriate because they were not able to present a single receipt to
substantiate their claims. Nonetheless, since it appears that they are entitled to actual
damages although the amount thereof cannot be determined, they should be awarded
temperate damages of P25,000.00 each. 46[46]
WHEREFORE, in view of all the foregoing, the appealed decision of the Regional Trial Court
of San Jose City, Branch 39 in Criminal Case No. L-16(95) is AFFIRMED insofar as appellant
Antonio Comadre is convicted of the complex crime of Murder with Multiple Attempted
Murder and sentenced to suffer the penalty of death. He is ordered to pay the heirs of the
victim the amount of P50,000.00 as civil indemnity, P50,000.00 as moral damages and
P18,000.00 as actual damages and likewise ordered to pay the surviving victims, Jaime
Agbanlog, Jimmy Wabe, Rey Camat and Gerry Bullanday, P25,000.00 each as temperate
damages for the injuries they sustained. Appellants Gregorio Comadre and Danilo Lozano
are ACQUITTED for lack of evidence to establish conspiracy, and they are hereby ordered
immediately RELEASED from confinement unless they are lawfully held in custody for
another cause. Costs de oficio.
In accordance with Section 25 of Republic Act 7659 amending Article 83 of the Revised
Penal Code, upon finality of this Decision, let the records of this case be forwarded to the
Office of the President for possible exercise of pardoning power.
SO ORDERED.

G.R. No. 169641

September 10, 2009

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
RICHARD O. SARCIA, Accused-Appellant.
DECISION
LEONARDO-DE CASTRO, J.:

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On automatic review is the decision 1 dated July 14, 2005 of the Court of Appeals (CA) in CAG.R. CR-HC No. 00717 which affirmed, with modifications, an earlier decision 2 of the
Regional Trial Court (RTC) of Ligao City, Branch 13, in Criminal Case No. 4134, finding herein
accused-appellant Richard O. Sarcia alias "Nogi" guilty beyond reasonable doubt of the
crime of rape3 committed against AAA, 4 and sentenced him to suffer the penalty of
Reclusion Perpetua and to pay the amount of P50,000.00 as civil indemnity, P50,000.00 as
moral damages, and the cost of the suit. However, the CA modified the penalties imposed
by the RTC by imposing the death penalty, increasing the award of civil indemnity to
P75,000.00, and awarding P25,000.00 as exemplary damages, aside from the P50,000.00
for moral damages.
The crime of rape was allegedly committed sometime in 1996 against AAA, a five (5) year
old girl. After almost four (4) years, AAAs father filed a complaint 5 for acts of lasciviousness
against herein accused-appellant on July 7, 2000. Upon review of the evidence, the Office of
the Provincial Prosecutor at Ligao, Albay upgraded the charge to rape. 6 The Information7
dated September 5, 2000 reads:
That sometime in 1996 at Barangay Doa Tomasa, Municipality of Guinobatan, Province of
Albay, Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, with lewd and unchaste design, and by means of force, threats and intimidation,
did then and there willfully, unlawfully and feloniously have sexual intercourse with [AAA],
who was then 6 years of age, against her will and consent, to her damage and prejudice.
ACTS CONTRARY TO LAW.
At his arraignment on October 25, 2000, accused-appellant, with the assistance of his
counsel, entered a plea of not guilty.8 Thereafter, trial on the merits ensued.
The prosecution presented the oral testimonies of the victim AAA; her minor cousin; her
father; and Dr. Joana Manatlao, the Municipal Health Officer of Guinobatan, Albay. The
defense presented the accused-appellant himself, who vehemently denied committing the
crimes imputed to him and Manuel Casimiro, Clerk of Court II of the Municipal Trial Court at
Guinobatan, Albay.
On January 17, 2003, the trial court rendered its Decision 9 finding the accused-appellant
guilty of the crime of rape and imposed the penalty mentioned above.
The record of this case was forwarded to this Court in view of the Notice of Appeal filed by
the accused- appellant.10
Accused-appellant filed his Appellants Brief 11 on July 15, 2004, while the People, through
the Office of the Solicitor General, filed its Appellees Brief 12 on December 15, 2004.
Pursuant to our pronouncement in People v. Mateo, 13 modifying the pertinent provisions of
the Revised Rules on Criminal Procedure insofar as they provide for direct appeals from the
RTC to this Court in cases in which the penalty imposed by the trial court is death, reclusion
perpetua or life imprisonment, and the Resolution dated September 19, 1995 in "Internal
Rules of the Supreme Court," the case was transferred, for appropriate action and
disposition, to the CA where it was docketed as CA-G.R. CR-H.C. No. 00717.
As stated at the beginning hereof, the CA, in its decision of July 14, 2005, in CA-G.R. CR-H.C.
No. 000717, affirmed with modification the judgment of conviction pronounced by the trial
court. We quote the fallo of the CA decision:
WHEREFORE, the judgment of conviction is AFFIRMED. The accused, Richard Sarcia y
Olivera, is ordered to suffer the penalty of DEATH, and to pay the victim, [AAA], the amount

of (1) P75,000.00 as civil indemnity; (2) P50,000.00 as moral damages, and (3) P25,000.00
as exemplary damages.
Let the entire records of this case be elevated to the Supreme Court for review, pursuant to
A.M. No. 00-5-03-SC (Amendments to the Revised Rules of Criminal Procedure to Govern
Death Penalty Cases), which took effect on October 15, 2004.
SO ORDERED.
On September 30, 2005, the case was elevated to this Court for further review. 14
In our Resolution15 of November 15, 2005, we required the parties to simultaneously submit
their respective supplemental briefs. Accused-appellant filed his Supplemental Brief 16 on
April 7, 2006. Having failed to submit one, the Office of the Solicitor General (OSG) was
deemed to have waived the filing of its supplemental brief.
In his Brief filed before the CA, accused-appellant raised the following assignment of errors:
I
THE LOWER COURT GRAVELY ERRED IN GIVING CREDENCE TO THE TESTIMONY OF [AAA],
[her cousin] and [her father].
II
THE LOWER COURT GLARINGLY ERRED IN REJECTING THE DEFENSE OF ALIBI INTERPOSED BY
THE ACCUSED WHICH IS MORE CREDIBLE.
III
THE LOWER COURT GRAVELY ERRED IN NOT ACQUITTING THE ACCUSED RICHARD SARCIA.
The evidence for the prosecution is summarized by the OSG in the Appellee's Brief, as
follows:
On December 16, 1996, five-year-old [AAA], together with her [cousin and two other
playmates], was playing in the yard of Saling Crisologo near a mango tree.
Suddenly, appellant appeared and invited [AAA] to go with him to the backyard of Saling
Crisologos house. She agreed. Unknown to appellant, [AAAs cousin] followed them.
Upon reaching the place, appellant removed [AAAs] shorts and underwear. He also
removed his trousers and brief. Thereafter, he ordered [AAA] to lie down on her back. Then,
he lay on top of her and inserted his penis into [AAAs] private organ. Appellant made an
up-and-down movement ("Nagdapadapa tabi"). [AAA] felt severe pain inside her private
part and said "aray." She also felt an intense pain inside her stomach.
[AAAs cousin], who positioned herself around five (5) meters away from them, witnessed
appellants dastardly act. Horrified, [AAAs cousin] instinctively rushed to the house of
[AAAs] mother, her aunt Emily, and told the latter what she had seen. [AAAs] mother
answered that they (referring to {AAA and her cousin} were still very young to be talking
about such matters.
Meanwhile, after satisfying his lust, appellant stood up and ordered [AAA] to put on her
clothes. Appellant then left.

Perplexed, [AAAs cousin] immediately returned to the backyard of Saling Crisologo where
she found [AAA] crying. Appellant, however, was gone. [AAAs cousin] approached [AAA]
and asked her what appellant had done to her. When [AAA] did not answer, [her cousin] did
not ask her any further question and just accompanied her home.
At home, [AAA] did not tell her mother what appellant had done to her because she feared
that her mother might slap her. Later, when her mother washed her body, she felt a grating
sensation in her private part. Thereafter, [AAA] called for [her cousin]. [AAAs cousin] came
to their house and told [AAAs] mother again that appellant had earlier made an up-anddown movement on top of [AAA]. [AAAs mother], however did not say anything. At that
time, [AAAs] father was working in Manila.
Dr. Joana Manatloa is the Municipal Health Officer of Guinobatan, Albay. She testified that:
(1) it was the rural health officer, Dr. Reantaso, who conducted a physical examination on
[AAA]; (2) Dr. Reantaso prepared and signed a medico-legal certificate containing the result
of [AAA]s examination; (3) Dr. Reantaso, however, had already resigned as rural health
officer of Guinobatan, Albay; (4) as a medical doctor, she can interpret, the findings in said
medico-legal certificate issued to [AAA]; (5) [AAA]s medical findings are as follows:
"negative for introital vulvar laceration nor scars, perforated hymen, complete, pinkish
vaginal mucosa, vaginal admits little finger with resistance; (6) the finding "negative for
introital bulvar laceration nor scars" means, in laymans language, that there was no
showing of any scar or wound, and (7) there is a complete perforation of the hymen which
means that it could have been subjected to a certain trauma or pressure such as strenuous
exercise or the entry of an object like a medical instrument or penis. 17
On the other hand, the trial court summarized the version of the defense as follows:
Richard Sarcia, 24 years old, single, student and a resident of Doa Tomasa, Guinobatan,
Albay denied he raped [AAA]. While he knows [AAAs] parents, because sometimes they go
to their house looking for his father to borrow money, he does not know [AAA] herself. His
father retired as a fireman from Crispa in 1991 while his mother worked as an agriculturist
in the Municipality of Teresa, Antipolo, Rizal. As an agriculturist of the Department of
Agriculture, his mother would bring seedlings and attend seminars in Batangas and Baguio.
They were residing in Cainta, Rizal when sometime in 1992 they transferred residence to
Guinobatan, Albay. His father is from barangay Masarawag while his mother is from
barangay Doa Tomasa both of Guinobatan, Albay. After their transfer in Guinobatan, his
mother continued to be an agriculturist while his father tended to his 1-hectare coconut
land. Richard testified he was between fourteen (14) and fifteen (15) years old in 1992
when they transferred to Guinobatan. Between 1992 and 1994 he was out of school. But
from 1994 to 1998 he took his high school at Masarawag High School. His daily routine was
at about 4:00 oclock in the afternoon after school before proceeding home he would
usually play basketball at the basketball court near the church in Doa Tomasa about 1
kilometer away from their house. When her mother suffered a stroke in 1999 he and his
father took turns taking care of his mother. Richard denied molesting other girls ... and was
most surprised when he was accused of raping [AAA]. He knows Saling Crisologo and the
latters place which is more than half kilometer to their house. Richard claimed Salvacion
Bobier, grandmother of Mae Christine Camu, whose death on May 7, 2000 was imputed to
him and for which a case for Murder under Criminal Case No. 4087 was filed against him
with the docile cooperation of [AAAs] parents who are related to Salvacion, concocted and
instigated [AAAs] rape charge against him to make the case for Murder against him
stronger and life for him miserable. He was incarcerated on May 10, 2000 for the Murder
charge and two (2) months later while he already in detention, the rape case supposedly
committed in 1996 was filed against him in the Municipal Trial Court (MTC) of Guinobatan,
Albay. He was to learn about it from his sister, Marivic, on a Sunday afternoon sometime on
July 20, 2000 when his sister visited him in jail. He naturally got angry when he heard of this
rape charge because he did not do such thing and recalled telling his sister they can go to a

doctor and have the child examine to prove he did not rape her. Subsequently, from his
sister again he was to learn that the rape case was ordered dismissed.
On cross-examination, Richard admitted [AAAs] mother, is also related to his father, [AAA
mothers] father, being a second cousin of his father. Richard is convinced it is not the
lending of money by his father to the AAAs family as the motive for the latter to file the
rape case against him but the instigation of Salvacion Bobier.
Manuel A. Casimiro, Clerk of Court II of the Municipal Trial Court (MTC), Guinobatan, Albay,
testified on the records of Criminal Case No. 7078 filed in MTC Guinobatan, Albay against
Richard Sarcia for Rape in relation to RA 7610 relative to the alleged withdrawal of said rape
case but the accused through counsel failed to formally offer the marked exhibits relative to
said case.18
Accused-appellant alleges that the trial court erred in convicting him, as the prosecution
was not able to prove his guilt beyond reasonable doubt. He assailed the credibility of the
prosecution witnesses, AAA, her cousin and her father on the following grounds: (1) the
testimonies of AAA and her cousin were inconsistent with each other; (2) the victim was
confused as to the date and time of the commission of the offense; (3) there was a fouryear delay in filing the criminal case, and the only reason why they filed the said case was
"to help Salvacion Bobier get a conviction of this same accused in a murder case filed by
said Salvacion Bobier for the death of her granddaughter Mae Christine Camu on May 7,
2000." Accused-appellant stressed that the same Salvacion Bobier helped AAAs father in
filing the said case for rape. Accused-appellant also claimed that the prosecution failed to
prove that he employed force, threats or intimidation to achieve his end. Finally, accusedappellant harped on the finding in the medical certificate issued by Dr. Reantaso and
interpreted by Dr. Joana Manatlao, stating "negative for introital bulvar laceration nor scar
which means that there was no showing of any scar or wound."
In his Appellee's Brief accused-appellant pointed out the inconsistencies between AAAs and
her cousins testimonies as follows: (1) the cousin testified that she played with AAA at the
time of the incident, while AAA testified that she was doing nothing before accusedappellant invited her to the back of the house of a certain Saling; (2) the cousin testified
that when she saw accused-appellant doing the push-and-pull motion while on top of AAA,
the latter shouted in a loud voice contrary to AAAs testimony that when accused-appellant
was inside her and started the up-and-down motion, she said "aray"; (3) when the cousin
returned to AAA after telling the latters mother what accused-appellant had done to AAA,
she found AAA crying. AAA however testified that, after putting on her clothes, she invited
the cousin to their house; and (4) the cousin testified that other children were playing at the
time of the incident, but AAA testified that there were only four of them who were playing at
that time.
As it is oft-repeated, inconsistencies in the testimonies of witnesses, which refer only to
minor details and collateral matters, do not affect the veracity and weight of their
testimonies where there is consistency in relating the principal occurrence and the positive
identification of the accused. Slight contradictions in fact even serve to strengthen the
credibility of the witnesses and prove that their testimonies are not rehearsed. Nor are such
inconsistencies, and even improbabilities, unusual, for there is no person with perfect
faculties or senses.19 The alleged inconsistencies in this case are too inconsequential to
overturn the findings of the court a quo. It is important that the two prosecution witnesses
were one in saying that it was accused-appellant who sexually abused AAA. Their positive,
candid and straightforward narrations of how AAA was sexually abused by accusedappellant evidently deserve full faith and credence. When the rape incident happened, AAA
was only five (5) years old; and when she and her cousin testified, they were barely 9 and
11 years old, respectively. This Court has had occasion to rule that the alleged
inconsistencies in the testimonies of the witnesses can be explained by their age and their
inexperience with court proceedings, and that even the most candid of witnesses commit

mistakes and make confused and inconsistent statements. This is especially true of young
witnesses, who could be overwhelmed by the atmosphere of the courtroom. Hence, there is
more reason to accord them ample space for inaccuracy. 20
Accused-appellant capitalizes on AAAs inability to recall the exact date when the incident in
1996 was committed. Failure to recall the exact date of the crime, however, is not an
indication of false testimony, for even discrepancies regarding exact dates of rapes are
inconsequential and immaterial and cannot discredit the credibility of the victim as a
witness.21 In People v. Purazo,22 We ruled:
We have ruled, time and again that the date is not an essential element of the crime of
rape, for the gravamen of the offense is carnal knowledge of a woman. As such, the time or
place of commission in rape cases need not be accurately stated. As early as 1908, we
already held that where the time or place or any other fact alleged is not an essential
element of the crime charged, conviction may be had on proof of the commission of the
crime, even if it appears that the crime was not committed at the precise time or place
alleged, or if the proof fails to sustain the existence of some immaterial fact set out in the
complaint, provided it appears that the specific crime charged was in fact committed prior
to the date of the filing of the complaint or information within the period of the statute of
limitations and at a place within the jurisdiction of the court.
Also in People v. Salalima,23 the Court held:
Failure to specify the exact dates or time when the rapes occurred does not ipso facto make
the information defective on its face. The reason is obvious. The precise date or time when
the victim was raped is not an element of the offense. The gravamen of the crime is the fact
of carnal knowledge under any of the circumstances enumerated under Article 335 of the
Revised Penal Code. As long as it is alleged that the offense was committed at any time as
near to the actual date when the offense was committed an information is sufficient. In
previous cases, we ruled that allegations that rapes were committed "before and until
October 15, 1994," "sometime in the year 1991 and the days thereafter," "sometime in
November 1995 and some occasions prior and/or subsequent thereto" and "on or about and
sometime in the year 1988" constitute sufficient compliance with Section 11, Rule 110 of
the Revised Rules on Criminal Procedure.
In this case, AAAs declaration that the rape incident took place on December 15, 1996 was
explained by the trial court, and we quote:
The rape took place in 1996. As earlier noted by the Court the date December 15, 1996
mentioned by [AAA] may have been arbitrarily chosen by the latter due to the intense
cross-examination she was subjected but the Court believes it could have been in any
month and date in the year 1996 as in fact neither the information nor [AAAs] sworn
statement mention the month and date but only the year. 24
Likewise, witnesses credibility is not affected by the delay in the filing of the case against
accused-appellant. Neither does the delay bolster accused-appellants claim that the only
reason why this case was filed against him was "to help Salvacion Bobier get a conviction of
this same accused-appellant in the case of murder filed by Salvacion Bobier for the death of
her granddaughter Mae Christine Camu on May 7, 2000."
The rape victims delay or hesitation in reporting the crime does not destroy the truth of the
charge nor is it an indication of deceit. It is common for a rape victim to prefer silence for
fear of her aggressor and the lack of courage to face the public stigma of having been
sexually abused. In People v. Coloma 25 we even considered an 8-year delay in reporting the
long history of rape by the victims father as understandable and not enough to render
incredible the complaint of a 13-year-old daughter. Thus, in the absence of other
circumstances that show that the charge was a mere concoction and impelled by some ill

motive, delay in the filing of the complainant is not sufficient to defeat the charge. Here, the
failure of AAAs parents to immediately file this case was sufficiently justified by the
complainants father in the latters testimony, thus:
Q But, did you not say, please correct me if I am wrong, you got angry when your
wife told you that something happened to Hazel way back in 1996?
A Yes, sir.
Q Yet, despite your anger you were telling us that you waited until June to file this
case?
A After I heard about the incident, I and my wife had a talk for which reason that
during that time we had no money yet to use in filing the case, so we waited. When
we were able to save enough amounts, we filed the case. 26
Accused-appellant also contends that he could not be liable for rape because there is no
proof that he employed force, threats or intimidation in having carnal knowledge of AAA.
Where the girl is below 12 years old, as in this case, the only subject of inquiry is whether
"carnal knowledge" took place. Proof of force, intimidation or consent is unnecessary, since
none of these is an element of statutory rape. There is a conclusive presumption of absence
of free consent when the rape victim is below the age of twelve. 27
Accused-appellant harps on the medical report, particularly the conclusion quoted as
follows: "negative for introital bulvar laceration nor scars, which means, in layman
language, that there was no showing of any scar or wound." The Court has consistently
ruled that the presence of lacerations in the victims sexual organ is not necessary to prove
the crime of rape and its absence does not negate the fact of rape. A medical report is not
indispensable in a prosecution for rape.28 What is important is that AAAs testimony meets
the test of credibility, and that is sufficient to convict the accused.
Accused-appellants defense of denial was properly rejected. Time and time again, we have
ruled that denial like alibi is the weakest of all defenses, because it is easy to concoct and
difficult to disprove. Furthermore, it cannot prevail over the positive and unequivocal
identification of appellant by the offended party and other witnesses. Categorical and
consistent positive identification, absent any showing of ill motive on the part of the
eyewitness testifying on the matter, prevails over the appellants defense of denial and
alibi.29 The shallow hypothesis put forward by accused-appellant that he was accused of
raping AAA due to the instigation of Salvacion Bobier hardly convinces this Court. On this
score, the trial court aptly reached the following conclusion:
True, Salvacion Bobier actively assisted AAAs family file the instant case against the
accused, but the Court believes [AAAs] parents finally decided to file the rape case
because after they have come to realize after what happened to Mae Christine Camu that
what previously [AAA and her cousin] told her mother and which the latter had continually
ignored is after all true.
AAA was barely 9 years of age when she testified. It has been stressed often enough that
the testimony of rape victims who are young and immature deserve full credence. It is
improbable for a girl of complainants age to fabricate a charge so humiliating to herself
and her family had she not been truly subjected to the painful experience of sexual abuse.
At any rate, a girl of tender years, innocent and guileless, cannot be expected to brazenly
impute a crime so serious as rape to any man if it were not true. 30 Parents would not
sacrifice their own daughter, a child of tender years at that, and subject her to the rigors
and humiliation of public trial for rape, if they were not motivated by an honest desire to
have their daughters transgressor punished accordingly. 31 Hence, the logical conclusion is

that no such improper motive exists and that her testimony is worthy of full faith and
credence.
The guilt of accused-appellant having been established beyond reasonable doubt, we
discuss now the proper penalty to be imposed on him.
Article 335 of the Revised Penal Code, as amended by Republic Act No. 7659, 32 was the
governing law at the time the accused-appellant committed the rape in question. Under the
said law, the penalty of death shall be imposed when the victim of rape is a child below
seven years of age. In this case, as the age of AAA, who was five (5) years old at the time
the rape was committed, was alleged in the information and proven during trial by the
presentation of her birth certificate, which showed her date of birth as January 16, 1991, the
death penalty should be imposed.
However, this Court finds ground for modifying the penalty imposed by the CA. We cannot
agree with the CAs conclusion that the accused-appellant cannot be deemed a minor at the
time of the commission of the offense to entitle him to the privileged mitigating
circumstance of minority pursuant to Article 68(2) 33 of the Revised Penal Code. When
accused appellant testified on March 14, 2002, he admitted that he was 24 years old, which
means that in 1996, he was 18 years of age. As found by the trial court, the rape incident
could have taken place "in any month and date in the year 1996." Since the prosecution
was not able to prove the exact date and time when the rape was committed, it is not
certain that the crime of rape was committed on or after he reached 18 years of age in
1996. In assessing the attendance of the mitigating circumstance of minority, all doubts
should be resolved in favor of the accused, it being more beneficial to the latter. In fact, in
several cases, this Court has appreciated this circumstance on the basis of a lone
declaration of the accused regarding his age. 34
Under Article 68 of the Revised Penal Code, when the offender is a minor under 18 years,
the penalty next lower than that prescribed by law shall be imposed, but always in the
proper period. However, for purposes of determining the proper penalty because of the
privileged mitigating circumstance of minority, the penalty of death is still the penalty to be
reckoned with.35 Thus, the proper imposable penalty for the accused-appellant is reclusion
perpetua.
It is noted that the Court is granted discretion in awarding damages provided in the Civil
Code, in case a crime is committed. Specifically, Article 2204 of the Civil Code provides that
"in crimes, the damages to be adjudicated may be respectively increased or lessened
according to the aggravating or mitigating circumstances." The issue now is whether the
award of damages should be reduced in view of the presence here of the privileged
mitigating circumstance of minority of the accused at the time of the commission of the
offense.
A review of the nature and purpose of the damages imposed on the convicted offender is in
order. Article 107 of the Revised Penal Code defines the term "indemnification," which is
included in the civil liability prescribed by Article 104 of the same Code, as follows:
Art. 107. Indemnification-What is included. Indemnification for consequential damages
shall include not only those caused the injured party, but also those suffered by his family
or by a third person by reason of the crime.
Relative to civil indemnity, People v. Victor 36 ratiocinated as follows:
The lower court, however, erred in categorizing the award of P50,000.00 to the offended
party as being in the nature of moral damages. We have heretofore explained in People v.
Gementiza that the indemnity authorized by our criminal law as civil liability ex delicto for
the offended party, in the amount authorized by the prevailing judicial policy and aside from

other proven actual damages, is itself equivalent to actual or compensatory damages in

civil law. It is not to be considered as moral damages thereunder, the latter being based on
different jural foundations and assessed by the court in the exercise of sound discretion.
One other point of concern has to be addressed. Indictments for rape continue unabated
and the legislative response has been in the form of higher penalties. The Court believes
that, on like considerations, the jurisprudential path on the civil aspect should follow the
same direction. Hence, starting with the case at bar, if the crime of rape is committed or
effectively qualified by any of the circumstances under which the death penalty is
authorized by the present amended law, the indemnity for the victim shall be in the
increased amount of not less than P75,000.00. This is not only a reaction to the apathetic
societal perception of the penal law, and the financial fluctuations over time, but also an
expression of the displeasure of the Court over the incidence of heinous crimes against
chastity. (Emphasis Supplied)
The Court has had the occasion to rule that moral damages are likewise compensatory in
nature. In San Andres v. Court of Appeals, 37 we held:
x x x Moral damages, though incapable of pecuniary estimation, are in the category of an
award designed to compensate the claimant for actual injury suffered and not to impose a
penalty on the wrongdoer. (Emphasis Supplied)
In another case, this Court also explained:
What we call moral damages are treated in American jurisprudence as compensatory
damages awarded for mental pain and suffering or mental anguish resulting from a wrong
(25 C.J.S. 815).38 (Emphasis Supplied)
Thus, according to law and jurisprudence, civil indemnity is in the nature of actual and
compensatory damages for the injury caused to the offended party and that suffered by her
family, and moral damages are likewise compensatory in nature. The fact of minority of the
offender at the time of the commission of the offense has no bearing on the gravity and
extent of injury caused to the victim and her family, particularly considering the
circumstances attending this case. Here, the accused-appelant could have been eighteen at
the time of the commission of the rape. He was accorded the benefit of the privileged
mitigating circumstance of minority because of a lack of proof regarding his actual age and
the date of the rape rather than a moral or evidentiary certainty of his minority.
In any event, notwithstanding the presence of the privileged mitigating circumstance of
minority, which warrants the lowering of the public penalty by one degree, there is no
justifiable ground to depart from the jurisprudential trend in the award of damages in the
case of qualified rape, considering the compensatory nature of the award of civil indemnity
and moral damages. This was the same stance this Court took in People v. Candelario, 39 a
case decided on July 28, 1999, which did not reduce the award of damages. At that time,
the damages amounted to P75,000.00 for civil indemnity and P50,000.00 for moral
damages, even if the public penalty imposed on the accused was lowered by one degree,
because of the presence of the privileged mitigating circumstance of minority.
The principal consideration for the award of damages, under the ruling in People v. Salome 40
and People v. Quiachon41 is the penalty provided by law or imposable for the offense
because of its heinousness, not the public penalty actually imposed on the offender.
Regarding the civil indemnity and moral damages, People v. Salome explained the basis for
increasing the amount of said civil damages as follows:
The Court, likewise, affirms the civil indemnity awarded by the Court of Appeals to Sally in
accordance with the ruling in People v. Sambrano which states:

"As to damages, we have held that if the rape is perpetrated with any of the attending
qualifying circumstances that require the imposition of the death penalty, the civil
indemnity for the victim shall P75,000.00 Also, in rape cases, moral damages are
awarded without the need proof other than the fact of rape because it is assumed that the
victim has suffered moral injuries entitling her to such an award. However, the trial courts
award of P50,000.00 as moral damages should also be increased to P75,000 pursuant to
current jurisprudence on qualified rape."
It should be noted that while the new law prohibits the imposition of the death penalty, the
penalty provided for by law for a heinous offense is still death and the offense is still
heinous. Consequently, the civil indemnity for the victim is still P75,000.00.
People v. Quiachon also ratiocinates as follows:
With respect to the award of damages, the appellate court, following prevailing
jurisprudence, correctly awarded the following amounts; P75,000.00 as civil indemnity
which is awarded if the crime is qualified by circumstances warranting the imposition of the
death penalty; P75,000.00.00 as moral damages because the victim is assumed to have
suffered moral injuries, hence, entitling her to an award of moral damages even without
proof thereof, x x x
Even if the penalty of death is not to be imposed on the appellant because of the
prohibition in R.A. No. 9346, the civil indemnity of P75,000.00 is still proper because,
following the ratiocination in People v. Victor, the said award is not dependent on the actual
imposition of the death penalty but on the fact that qualifying circumstances warranting the
imposition of the death penalty attended the commission of the offense. The Court declared
that the award of P75,000.00 shows "not only a reaction to the apathetic societal perception
of the penal law and the financial fluctuations over time but also the expression of the
displeasure of the court of the incidence of heinous crimes against chastity."
The litmus test therefore, in the determination of the civil indemnity is the heinous
character of the crime committed, which would have warranted the imposition of the death
penalty, regardless of whether the penalty actually imposed is reduced to reclusion
perpetua.
As to the award of exemplary damages, Article 2229 of the Civil Code provides that
exemplary or corrective damages are imposed in addition to the moral, temperate,
liquidated or compensatory damages. Exemplary damages are not recoverable as a matter
of right. The requirements of an award of exemplary damagees are: (1) they may be
imposed by way of example in addition to compensatory damages, and only after the
claimants right to them has been established; (2) they cannot be recovered as a matter of
right, their determination depending upon the amount of compensatory damages that may
be awarded to the claimant; (3) the act must be accompanied by bad faith or done in a
wanton, fraudulent, oppressive or malevolent manner. 42 Since the compensatory damages,
such as the civil indemnity and moral damages, are increased when qualified rape is
committed, the exemplary damages should likewise be increased in accordance with
prevailing jurisprudence.43
In sum, the increased amount of P75,000.00 each as civil indemnity and moral damages
should be maintained. It is also proper and appropriate that the award of exemplary
damages be likewise increased to the amount of P30,000.00 based on the latest
jurisprudence on the award of damages on qualified rape. Thus, the CA correctly awarded
P75,000.00 as civil indemnity. However the award of P50,000.00 as moral damages is
increased to P75,000.0044 and that of P25,000.00 as exemplary damages is likewise
increased to P30,000.00.45

Meanwhile, when accused-appellant was detained at the New Bilibid Prison pending the
outcome of his appeal before this Court, Republic Act (R.A.) No. 9344, the Juvenile Justice
and Welfare Act of 2006 took effect on May 20, 2006. The RTC decision and CA decision
were promulgated on January 17, 2003 and July 14, 2005, respectively. The promulgation of
the sentence of conviction of accused-appellant handed down by the RTC was not
suspended as he was about 25 years of age at that time, in accordance with Article 192 of
Presidential Decree (P.D.) No. 603, The Child and Youth Welfare Code 46 and Section 32 of
A.M. No. 02-1-18-SC, the Rule on Juveniles in Conflict with the Law. 47 Accused-appellant is
now approximately 31 years of age. He was previously detained at the Albay Provincial Jail
at Legaspi City and transferred to the New Bilibid Prison, Muntinlupa City on October 13,
2003.
R.A. No. 9344 provides for its retroactive application as follows:
Sec. 68. Children Who Have Been Convicted and are Serving Sentence. Persons who have
been convicted and are serving sentence at the time of the effectivity of this Act, and who
were below the age of eighteen (18) years at the time of the commission of the offense for
which they were convicted and are serving sentence, shall likewise benefit from the
retroactive application of this Act. x x x
The aforequoted provision allows the retroactive application of the Act to those who have
been convicted and are serving sentence at the time of the effectivity of this said Act, and
who were below the age of 18 years at the time of the commission of the offense. With
more reason, the Act should apply to this case wherein the conviction by the lower court is
still under review. Hence, it is necessary to examine which provisions of R.A. No. 9344 shall
apply to accused-appellant, who was below 18 years old at the time of the commission of
the offense.
Sec. 38 of R.A. No. 9344 provides for the automatic suspension of sentence of a child in
conflict with the law, even if he/she is already 18 years of age or more at the time he/she is
found guilty of the offense charged. It reads:
Sec. 38. Automatic Suspension of Sentence. Once the child who is under eighteen (18)
years of age at the time of the commission of the offense is found guilty of the offense
charged, the court shall determine and ascertain any civil liability which may have resulted
from the offense committed. However, instead of pronouncing the judgment of conviction,
the court shall place the child in conflict with the law under suspended sentence, without
need of application: Provided, however, That suspension of sentence shall still be applied
even if the juvenile is already eighteen (18) of age or more at the time of the
pronouncement of his/her guilt.
Upon suspension of sentence and after considering the various circumstances of the child,
the court shall impose the appropriate disposition measures as provided in the Supreme
Court on Juvenile in Conflict with the Law.
The above-quoted provision makes no distinction as to the nature of the offense committed
by the child in conflict with the law, unlike P.D. No. 603 and A.M. No. 02-1-18-SC. 48 The said
P.D. and Supreme Court (SC) Rule provide that the benefit of suspended sentence would not
apply to a child in conflict with the law if, among others, he/she has been convicted of an
offense punishable by death, reclusion perpetua or life imprisonment. In construing Sec. 38
of R.A. No. 9344, the Court is guided by the basic principle of statutory construction that
when the law does not distinguish, we should not distinguish. 49 Since R.A. No. 9344 does not
distinguish between a minor who has been convicted of a capital offense and another who
has been convicted of a lesser offense, the Court should also not distinguish and should
apply the automatic suspension of sentence to a child in conflict with the law who has been
found guilty of a heinous crime.

Moreover, the legislative intent, to apply to heinous crimes the automatic suspension of
sentence of a child in conflict with the law can be gleaned from the Senate deliberations 50
on Senate Bill No. 1402 (Juvenile Justice and Delinquency Prevention Act of 2005), the
pertinent portion of which is quoted below:
If a mature minor, maybe 16 years old to below 18 years old is charged, accused with, or
may have committed a serious offense, and may have acted with discernment, then the
child could be recommended by the Department of Social Welfare and Development
(DSWD), by the Local Council for the Protection of Children (LCPC), or by my proposed Office
of Juvenile Welfare and Restoration to go through a judicial proceeding; but the welfare,
best interests, and restoration of the child should still be a primordial or primary
consideration. Even in heinous crimes, the intention should still be the childs restoration,
rehabilitation and reintegration. xxx (Italics supplied)1avvphi1
Nonetheless, while Sec. 38 of R.A. No. 9344 provides that suspension of sentence can still
be applied even if the child in conflict with the law is already eighteen (18) years of age or
more at the time of the pronouncement of his/her guilt, Sec. 40 of the same law limits the
said suspension of sentence until the said child reaches the maximum age of 21, thus:
Sec. 40. Return of the Child in Conflict with the Law to Court. If the court finds that the
objective of the disposition measures imposed upon the child in conflict with the law have
not been fulfilled, or if the child in conflict with the law has willfully failed to comply with the
condition of his/her disposition or rehabilitation program, the child in conflict with the law
shall be brought before the court for execution of judgment.
If said child in conflict with the law has reached eighteen (18) years of age while under
suspended sentence, the court shall determine whether to discharge the child in
accordance with this Act, to order execution of sentence, or to extend the suspended
sentence for a certain specified period or until the child reaches the maximum age of
twenty-one (21) years. (emphasis ours)
To date, accused-appellant is about 31 years of age, and the judgment of the RTC had been
promulgated, even before the effectivity of R.A. No. 9344. Thus, the application of Secs. 38
and 40 to the suspension of sentence is now moot and academic. 51 However, accusedappellant shall be entitled to appropriate disposition under Sec. 51 of R.A. No. 9344, which
provides for the confinement of convicted children as follows:
Sec. 51. Confinement of Convicted Children in Agricultural Camps and Other Training
Facilities. A child in conflict with the law may, after conviction and upon order of the court,
be made to serve his/her sentence, in lieu of confinement in a regular penal institution, in
an agricultural camp and other training facilities that may be established, maintained,
supervised and controlled by the BUCOR, in coordination with the DSWD.
The civil liability resulting from the commission of the offense is not affected by the
appropriate disposition measures and shall be enforced in accordance with law. 52
WHEREFORE, the decision of the CA dated July 14, 2005 in CA-G.R. CR-H.C. No. 00717 is
hereby AFFIRMED with the following MODIFICATIONS: (1) the penalty of death imposed on
accused-appellant is reduced to reclusion perpetua; 53 and (2) accused-appellant is ordered
to pay the victim the amount of P75,000.00 and P30,000.00 as moral damages and
exemplary damages, respectively. The award of civil indemnity in the amount of P75,000.00
is maintained. However, the case shall be REMANDED to the court a quo for appropriate
disposition in accordance with Sec. 51 of R.A. 9344.
SO ORDERED.

G.R. No. 182239

March 16, 2011

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
HERMIE M. JACINTO, Accused-Appellant.
DECISION
PEREZ, J.:
Once again, we recite the time-honored principle that the defense of alibi cannot prevail
over the victims positive identification of the accused as the perpetrator of the crime. 1 For
it to prosper, the court must be convinced that there was physical impossibility on the part
of the accused to have been at the locus criminis at the time of the commission of the
crime.2
Nevertheless, a child in conflict with the law, whose judgment of conviction has become
final and executory only after his disqualification from availing of the benefits of suspended
sentence on the ground that he/she has exceeded the age limit of twenty-one (21) years,
shall still be entitled to the right to restoration, rehabilitation, and reintegration in

accordance with Republic Act No. 9344, otherwise known as "An Act Establishing a
Comprehensive Juvenile Justice and Welfare System, Creating the Juvenile Justice and
Welfare Council under the Department of Justice, Appropriating Funds Therefor and for
Other Purposes."
Convicted for the rape of five-year-old AAA, 3 appellant Hermie M. Jacinto seeks before this
Court the reversal of the judgment of his conviction. 4
The Facts
In an Information dated 20 March 20035 filed with the Regional Trial Court and docketed as
Criminal Case No. 1679-13-141[1],6 appellant was accused of the crime of RAPE allegedly
committed as follows:
That on or about the 28th day of January, 2003 at about 7:00 oclock in the evening more or
less, at barangay xxx, municipality of xxx, province of xxx and within the jurisdiction of this
Honorable Court, [Hermie M. Jacinto], with lewd design did then and there willfully,
unlawfully and feloniously had carnal knowledge with one AAA, a five-year old minor child.
CONTRARY TO LAW, with the qualifying/aggravating circumstance of minority, the victim
being only five years old.7
On 15 July 2003, appellant entered a plea of not guilty. 8 During pre-trial,9 the defense
admitted the existence of the following documents: (1) birth certificate of AAA, showing
that she was born on 3 December 1997; (2) police blotter entry on the rape incident; and
(3) medical certificate, upon presentation of the original or upon identification thereof by
the physician.
Trial ensued with the prosecution and the defense presenting witnesses to prove their
respective versions of the story.
Evidence for the Prosecution
The testimonies of AAA, 10 her father FFF, 11 and rebuttal witness Julito Apiki [Julito] 12 may be
summarized in the following manner:
FFF and appellant have been neighbors since they were born. FFFs house is along the road.
That of appellant lies at the back approximately 80 meters from FFF. To access the road,
appellant has to pass by FFFs house, the frequency of which the latter describes to be
"every minute [and] every hour." Also, appellant often visits FFF because they were close
friends. He bore no grudge against appellant prior to the incident. 13
AAA likewise knows appellant well. She usually calls him kuya. She sees him all the time
playing at the basketball court near her house, fetching water, and passing by her house on
his way to the road. She and appellant used to be friends until the incident. 14
At about past 6 oclock in the evening of 28 January 2003, FFF sent his eight-year-old
daughter CCC to the store of Rudy Hatague to buy cigarettes. AAA followed CCC. When CCC
returned without AAA, FFF was not alarmed. He thought she was watching television at the
house of her aunt Rita Lingcay [Rita].15
Julito went to the same store at around 6:20 in the evening to buy a bottle of Tanduay
Rum.16 At the store, he saw appellant place AAA on his lap. 17 He was wearing sleeveless
shirt and a pair of short pants. 18 All of them left the store at the same time. 19 Julito
proceeded to the house of Rita to watch television, while appellant, who held the hand of
AAA, went towards the direction of the "lower area or place." 20
AAA recalled that appellant was wearing a chaleko (sando) and a pair of short pants 21 when
he held her hand while on the road near the store. 22 They walked towards the rice field near
the house of spouses Alejandro and Gloria Perocho [the Perochos]. 23 There he made her lie
down on harrowed ground, removed her panty and boxed her on the chest. 24 Already halfnaked from waist down,25 he mounted her, and, while her legs were pushed apart, pushed
his penis into her vagina and made a push and pull movement. 26 She felt pain and cried.27

Afterwards, appellant left and proceeded to the Perochos. 28 She, in turn, went straight home
crying.29
FFF heard AAA crying and calling his name from downstairs. 30 She was without slippers. 31 He
found her face greasy. 32 There was mud on her head and blood was oozing from the back of
her head.33 He checked for any injury and found on her neck a contusion that was already
turning black.34 She had no underwear on and he saw white substance and mud on her
vagina.35 AAA told him that appellant brought her from the store 36 to the grassy area at the
back of the house of the Perochos; 37 that he threw away her pair of slippers, removed her
panty, choked her and boxed her breast; 38 and that he proceeded thereafter to the
Perochos.39
True enough, FFF found appellant at the house of the Perochos. 40 He asked the appellant
what he did to AAA.41 Appellant replied that he was asked to buy rum at the store and that
AAA followed him.42 FFF went home to check on his daughter, 43 afterwhich, he went back to
appellant, asked again,44 and boxed him.45
Meanwhile, at around 7:45 in the evening of even date, Julito was still watching television at
the house of Rita.46 AAA and her mother MMM arrived. 47 AAA was crying.48 Julito pitied her,
embraced her, and asked what happened to her, to which she replied that appellant raped
her.49 Julito left and found appellant at the Perochos. 50 Julito asked appellant, "Bads, did you
really rape the child, the daughter of [MMM]?" but the latter ignored his question. 51
Appellants aunt, Gloria, told appellant that the policemen were coming to which the
appellant responded, "Wait a minute because I will wash the dirt of my elbow (sic) and my
knees."52 Julito did found the elbows and knees of appellant with dirt. 53
On that same evening, FFF and AAA proceeded to the police station to have the incident
blottered.54 FFF also had AAA undergo a physical check up at the municipal health center. 55
Dr. Bernardita M. Gaspar, M.D., Rural Health Physician, issued a medical certificate 56 dated
29 January 2003. It reads:
Injuries seen are as follows:
1. Multiple abrasions with erythema along the neck area.
2. Petechial hemorrhages on both per-orbital areas.
3. Hematoma over the left upper arm, lateral area
4. Hematoma over the upper anterior chest wall, midclavicular line
5. Abrasion over the posterior trunk, paravertebral area
6. Genital and peri-anal area soiled with debris and whitish mucoid-like material
7. Introitus is erythematous with minimal bleeding
8. Hymenal lacerations at the 5 oclock and 9 oclock position
Impression
MULTIPLE SOFT TISSUE INJURIES
HYMENAL LACERATIONS
Upon the recommendation of Dr. Gaspar, 57 AAA submitted herself to another examination at
the provincial hospital on the following day. Dr. Christine Ruth B. Micabalo, Medical Officer III
of the provincial hospital, attended to her and issued a medico-legal certificate dated 29
January 2003,58 the pertinent portion of which reads:
P.E. = Findings is consistent with Dr. Bernardita M. Gaspar findings except No. 6 and 7 there
is no bleeding in this time of examination. (sic) 59

Evidence for the Defense

Interposing the defense of alibi, appellant gave a different version of the story. To
corroborate his testimony, Luzvilla Balucan [Luzvilla] and his aunt Gloria took the witness
stand to affirm that he was at the Perochos at the time of the commission of the crime. 60
Luzvilla even went further to state that she actually saw Julito, not appellant, pick up AAA
on the road.61 In addition, Antonia Perocho [Antonia], sister-in-law of appellants aunt,
Gloria,62 testified on the behavior of Julito after the rape incident was revealed. 63
Appellant claimed that he lives with his aunt, not with his parents whose house stands at
the back of FFFs house.64 He denied that there was a need to pass by the house of FFF in
order to access the road or to fetch water. 65 He, however, admitted that he occasionally
worked for FFF,66 and whenever he was asked to buy something from the store, AAA always
approached him.67
At about 8 oclock in the morning of 28 January 2003, appellant went to the Perochos to
attend a birthday party. At 6:08 in the evening, while the visitors, including appellant and
his uncle Alejandro Perocho [Alejandro], were gathered together in a drinking session,
appellants uncle sent him to the store to buy Tanduay Rum. Since the store is only about 20
meters from the house, he was able to return after three (3) minutes. He was certain of the
time because he had a watch .68
Appellants aunt, Gloria, the lady of the house, confirmed that he was in her house
attending the birthday party; and that appellant went out between 6 and 7 in the evening
to buy a bottle of Tanduay from the store. She recalled that appellant was back around five
(5) minutes later. She also observed that appellants white shorts and white sleeveless shirt
were clean.69
At 6:30 in the evening,70 Luzvilla, who was also at the party, saw appellant at the kitchen
having a drink with his uncle Alejandro and the rest of the visitors. 71 She went out to relieve
herself at the side of the tree beside the road next to the house of the Perochos. 72 From
where she was, she saw Julito, who was wearing black short pants and black T-shirt, carry
AAA.73 AAAs face was covered and she was wiggling. 74 This did not alarm her because she
thought it was just a game. 75 Meanwhile, appellant was still in the kitchen when she
returned.76 Around three (3) minutes later, Luzvilla saw Julito, now in a white T-shirt, 77
running towards the house of Rita.78 AAA was slowly following behind.79 Luzvilla followed
them.80 Just outside the house, Julito embraced AAA and asked what the appellant did to
her.81 The child did not answer.82
Luzvilla also followed FFF to the Perochos. She witnessed the punching incident and testified
that appellant was twice boxed by FFF. According to her, FFF tapped the left shoulder of the
appellant, boxed him, and left. FFF came in the second time and again boxed appellant. This
time, he had a bolo pointed at appellant. Appellants uncle Alejandro, a barangay councilor,
and another Civilian Voluntary Organization (CVO) member admonished FFF. 83
On sur-rebuttal, Antonia testified that, at 7 oclock in the evening, she was watching the
television along with other people at the house of Rita. Around 7:10, Julito, who was wearing
only a pair of black short pants without a shirt on, entered the house drunk. He paced back
and forth. After 10 minutes, AAA came in crying. Julito tightly embraced AAA and asked her
what happened. AAA did not answer. Upon Antonias advice, Julito released her and went
out of the house.84
Appellant further testified that at past 7 oclock in the evening, FFF arrived, pointed a finger
at him, brandished a bolo, and accused him of molesting AAA. FFF left but returned at
around 8 oclock in the evening. This time, he boxed appellant and asked again why he
molested his daughter.85
On 26 March 2004, the Regional Trial Court rendered its decision, 86 the dispositive portion of
which reads:
WHEREFORE, finding accused Hermie M. Jacinto guilty beyond reasonable doubt of rape
committed upon a 5-year old girl, the court sentences him to death and orders him to pay
[AAA] P75,000.000 as rape indemnity and P50,000.00 as moral damages. With costs 87

The defense moved to reopen trial for reception of newly discovered evidence stating that
appellant was apparently born on 1 March 1985 and that he was only seventeen (17) years
old when the crime was committed on 28 January 2003. 88 The trial court appreciated the
evidence and reduced the penalty from death to reclusion perpetua.89 Thus:
WHEREFORE, the judgment of the court imposing the death penalty upon the accused is
amended in order to consider the privileged mitigating circumstance of minority. The
penalty impos[a]ble upon the accused, therefore[,] is reduced to reclusion perpetua. xxx
Appealed to this Court, the case was transferred to the Court of Appeals for its disposition in
view of the ruling in People v. Mateo and the Internal Rules of the Supreme Court allowing
an intermediate review by the Court of Appeals of cases where the penalty imposed is
death, reclusion perpetua, or life imprisonment.90
On 29 August 2007, the Court of Appeals AFFIRMED the decision of the trial court with the
following MODIFICATIONS:
xxx that Hermie M. Jacinto should suffer the Indeterminate penalty of from six (6) years and
one (1) day to twelve (12) years of prision mayor, as minimum, to seventeen (17) and four
(4) months of reclusion temporal, as maximum. Appellant Hermie M. Jacinto is ordered to
indemnify the victim in the sum of P75,000.00 as civil indemnity, P75,000.00 as moral
damages, and P25,000.00 as exemplary damages and to pay the costs. 91
On 19 November 2007, the Court of Appeals gave due course to the appellants Notice of
Appeal.92 This Court required the parties to simultaneously file their respective
supplemental briefs.93 Both parties manifested that they have exhaustively discussed their
positions in their respective briefs and would no longer file any supplement. 94
Before the Court of Appeals, appellant argued that "THE COURT A QUO GRAVELY ERRED IN
CONVICTING HEREIN ACCUSED-APPELLANT GUILTY BEYOND REASONABLE DOUBT OF
RAPE"95 by invoking the principle that "if the inculpatory facts and circumstances are
capable of two or more reasonable explanations, one of which is consistent with the
innocence of the accused and the other with his guilt, then the evidence does not pass the
test of moral certainty and will not suffice to support a conviction." 96
Our Ruling
We sustain the judgment of conviction.
In the determination of the innocence or guilt of a person accused of rape, we consider the
three well-entrenched principles:
(1) an accusation for rape can be made with facility; it is difficult to prove but more difficult
for the accused, though innocent, to disprove; (2) in view of the intrinsic nature of the crime
of rape in which only two persons are usually involved, the testimony of the complainant
must be scrutinized with extreme caution; and (3) the evidence for the prosecution must
stand or fall on its own merits, and cannot be allowed to draw strength from the weakness
of the evidence for the defense.97
Necessarily, the credible, natural, and convincing testimony of the victim may be sufficient
to convict the accused.98 More so, when the testimony is supported by the medico-legal
findings of the examining physician.99
Further, the defense of alibi cannot prevail over the victims positive identification of the
perpetrator of the crime,100 except when it is established that it was physically impossible
for the accused to have been at the locus criminis at the time of the commission of the
crime.101
I
A man commits rape by having carnal knowledge of a child under twelve (12) years of age
even in the absence of any of the following circumstances: (a) through force, threat or

intimidation; (b) when the offended party is deprived of reason or otherwise unconscious; or
(c) by means of fraudulent machination or grave abuse of authority. 102
That the crime of rape has been committed is certain. The vivid narration of the acts
culminating in the insertion of appellants organ into the vagina of five-year-old AAA and the
medical findings of the physicians sufficiently proved such fact.
AAA testified:
PROS. OMANDAM:
xxxx
Q You said Hermie laid you on the ground, removed your panty and boxed you, what
else did he do to you?
A He mounted me.
Q When Hermie mounted you, was he facing you?
A Yes.
Q When he mounted you what did he do, did he move?
A He moved his ass, he made a push and pull movement.
Q When he made a push and pull movement, how were your legs positioned?
A They were apart.
Q Who pushed them apart?
A Hermie.
Q Did Hermie push anything at you?
A Yes.
Q What was that?
A His penis.
Q Where did he push his penis?
A To my vagina.
Q Was it painful?
A Yes.
Q What was painful?
A My vagina.
Q Did you cry?
A Yes.103
The straightforward and consistent answers to the questions, which were phrased and rephrased in order to test that AAA well understood the information elicited from her, said it
all she had been raped. When a woman, more so a minor, says so, she says in effect all

that is essential to show that rape was committed. 104 Significantly, youth and immaturity
are normally badges of truth and honesty. 105
Further, the medical findings and the testimony of Dr. Micabalo 106 revealed that the hymenal
lacerations at 5 oclock and 9 oclock positions could have been caused by the penetration
of an object; that the redness of the introitus could have been "the result of the repeated
battering of the object;" and that such object could have been an erect male organ. 107
The credible testimony of AAA corroborated by the physicians finding of penetration
conclusively established the essential requisite of carnal knowledge. 108
II
The real identity of the assailant and the whereabouts of the appellant at the time of the
commission of the crime are now in dispute.
The defense would want us to believe that it was Julito who defiled AAA, and that appellant
was elsewhere when the crime was committed. 109
We should not, however, overlook the fact that a victim of rape could readily identify her
assailant, especially when he is not a stranger to her, considering that she could have a
good look at him during the commission of the crime.110 AAA had known appellant all her
life. Moreover, appellant and AAA even walked together from the road near the store to the
situs criminus111 that it would be impossible for the child not to recognize the man who held
her hand and led her all the way to the rice field.
We see no reason to disturb the findings of the trial court on the unwavering testimony of
AAA.
The certainty of the child, unusually intelligent for one so young, that it was accused, whom
she called "kuya" and who used to play basketball and fetch water near their house, and
who was wearing a sleeveless shirt and shorts at the time he raped her, was convincing and
persuasive. The defense attempted to impute the crime to someone else one Julito Apiki,
but the child, on rebuttal, was steadfast and did not equivocate, asserting that it was
accused who is younger, and not Julito, who is older, who molested her. 112
In a long line of cases, this Court has consistently ruled that the determination by the trial
court of the credibility of the witnesses deserves full weight and respect considering that it
has "the opportunity to observe the witnesses manner of testifying, their furtive glances,
calmness, sighs and the scant or full realization of their oath," 113 unless it is shown that
material facts and circumstances have been "ignored, overlooked, misconstrued, or
misinterpreted."114
Further, as correctly observed by the trial court:
xxx His and his witness attempt to throw the court off the track by imputing the crime to
someone else is xxx a vain exercise in view of the private complainants positive
identification of accused and other corroborative circumstances. Accused also admitted that
on the same evening, Julito Apiki, the supposed real culprit, asked him "What is this
incident, Pare?", thus corroborating the latters testimony that he confronted accused after
hearing of the incident from the child." 115
On the other hand, we cannot agree with the appellant that the trial court erred in finding
his denial and alibi weak despite the presentation of witnesses to corroborate his testimony.
Glaring inconsistencies were all over their respective testimonies that even destroyed the
credibility of the appellants very testimony.
Appellant testified that it was his uncle Alejandro Perocho who sent him to store to buy
Tanduay; that he gave the bottle to his uncle; and that they had already been drinking long
before he bought Tanduay at the store.
This was contradicted by the testimony of his aunt Gloria, wife of his uncle Alejandro. On
cross-examination, she revealed that her husband was not around before, during, and after

the rape incident because he was then at work. 116 He arrived from work only after FFF came
to their house for the second time and boxed appellant. 117 It was actually the fish vendor,
not her husband, who asked appellant to buy Tanduay. 118 Further, the drinking session
started only after the appellants errand to the store. 119
Neither was the testimony of Luzvilla credible enough to deserve consideration.
Just like appellant, Luzvilla testified that Alejandro joined the drinking session. This is
contrary to Glorias statement that her husband was at work.
Luzvillas testimony is likewise inconsistent with that of sur-rebuttal witness Antonia
Perocho. Antonia recalled that Julito arrived without a shirt on. This belied Luzvillas claim
that Julito wore a white shirt on his way to the house of Rita. In addition, while both the
prosecution, as testified to by AAA and Julito, and the defense, as testified to by Gloria,
were consistent in saying that appellant wore a sleeveless shirt, Luzvillas recollection differ
in that Julito wore a T-shirt (colored black and later changed to white), and, thus, a shortsleeved shirt.
Also, contrary to Luzvillas story that she saw AAA walking towards Ritas house three (3)
minutes after she returned to the Perochos at 6:38 in the evening, Antonia recalled that
AAA arrived at the house of Rita at 7:30. In this respect, we find the trial courts
appreciation in order. Thus:
xxx. The child declared that after being raped, she went straight home, crying, to tell her
father that Hermie had raped her. She did not first drop into the house of Lita Lingkay to cry
among strangers who were watching TV, as Luzvilla Balucan would have the court believe.
When the child was seen at the house of Lita Lingkay by Julito Apiki and Luzvilla Balucan, it
was only later, after she had been brought there by her mother Brenda so that Lita Lingkay
could take a look at her just as Julito Apiki said.120
Above all, for alibi to prosper, it is necessary that the corroboration is credible, the same
having been offered preferably by disinterested witnesses. The defense failed thuswise. Its
witnesses cannot qualify as such, "they being related or were one way or another linked to
each other."121
Even assuming for the sake of argument that we consider the corroborations on his
whereabouts, still, the defense of alibi cannot prosper.
We reiterate, time and again, that the court must be convinced that it would be physically
impossible for the accused to have been at the locus criminis at the time of the commission
of the crime.122
Physical impossibility refers to distance and the facility of access between the situs criminis
and the location of the accused when the crime was committed. He must demonstrate that
he was so far away and could not have been physically present at the scene of the crime
and its immediate vicinity when the crime was committed. 123
In People v. Paraiso,124 the distance of two thousand meters from the place of the
commission of the crime was considered not physically impossible to reach in less than an
hour even by foot.125 Inasmuch as it would take the accused not more than five minutes to
rape the victim, this Court disregarded the testimony of the defense witness attesting that
the accused was fast asleep when she left to gather bamboo trees and returned several
hours after. She could have merely presumed that the accused slept all throughout. 126
In People v. Antivola,127 the testimonies of relatives and friends corroborating that of the
appellant that he was in their company at the time of the commission of the crime were
likewise disregarded by this Court in the following manner:
Ruben Nicolas, the appellants part-time employer, and Marites Capalad, the appellants
sister-in-law and co-worker, in unison, vouched for the appellants physical presence in the
fishpond at the time Rachel was raped. It is, however, an established fact that the
appellants house where the rape occurred, was a stones throw away from the
fishpond. Their claim that the appellant never left their sight the entire afternoon
of December 4, 1997 is unacceptable. It was impossible for Marites to have kept an eye

on the appellant for almost four hours, since she testified that she, too, was very much
occupied with her task of counting and recording the fishes being harvested. Likewise, Mr.
Nicolas, who, admittedly was 50 meters away from the fishpond, could not have focused his
entire attention solely on the appellant. It is, therefore, not farfetched that the
appellant easily sneaked out unnoticed, and along the way inveigled the victim,
brought her inside his house and ravished her, then returned to the fishpond as if
he never left.128 (Emphasis supplied.)1avvphi1
As in the cases above cited, the claim of the defense witnesses that appellant never left
their sight, save from the 5-minute errand to the store, is contrary to ordinary human
experience. Moreover, considering that the farmland where the crime was committed is just
behind the house of the Perochos, it would take appellant only a few minutes to bring AAA
from the road near the store next to the Perochos down the farmland and consummate the
crime. As correctly pointed out by the Court of Appeals, appellant could have committed the
rape after buying the bottle of Tanduay and immediately returned to his uncles house. 129
Unfortunately, the testimonies of his corroborating witnesses even bolstered the fact that
he was within the immediate vicinity of the scene of the crime. 130
Clearly, the defense failed to prove that it was physically impossible for appellant to have
been at the time and place of the commission of the crime.
All considered, we find that the prosecution has sufficiently established the guilt of the
appellant beyond reasonable doubt.
III
In the determination of the imposable penalty, the Court of Appeals correctly considered
Republic Act No. 9344 (Juvenile Justice and Welfare Act of 2006) despite the commission of
the crime three (3) years before it was enacted on 28 April 2006.
We recognize its retroactive application following the rationale elucidated in People v.
Sarcia:131
[Sec. 68 of Republic Act No. 9344] 132 allows the retroactive application of the Act to those
who have been convicted and are serving sentence at the time of the effectivity of this said
Act, and who were below the age of 18 years at the time of the commission of the offense.
With more reason, the Act should apply to this case wherein the conviction by
the lower court is still under review.133 (Emphasis supplied.)
Criminal Liability; Imposable Penalty
Sec. 6 of Republic Act No. 9344 exempts a child above fifteen (15) years but below eighteen
(18) years of age from criminal liability, unless the child is found to have acted with
discernment, in which case, "the appropriate proceedings" in accordance with the Act shall
be observed.134
We determine discernment in this wise:
Discernment is that mental capacity of a minor to fully appreciate the consequences of his
unlawful act.135 Such capacity may be known and should be determined by taking into
consideration all the facts and circumstances afforded by the records in each case. 136
xxx The surrounding circumstances must demonstrate that the minor knew what he was
doing and that it was wrong. 137 Such circumstance includes the gruesome nature of the
crime and the minors cunning and shrewdness. 138
In the present case, we agree with the Court of Appeals that: "(1) choosing an isolated and
dark place to perpetrate the crime, to prevent detection[;] and (2) boxing the victim xxx, to
weaken her defense" are indicative of then seventeen (17) year-old appellants mental
capacity to fully understand the consequences of his unlawful action. 139
Nonetheless, the corresponding imposable penalty should be modified.

The birth certificate of AAA 140 shows that she was born on 3 December 1997. Considering
that she was only five (5) years old when appellant defiled her on 28 January 2003, the law
prescribing the death penalty when rape is committed against a child below seven (7) years
old141 applies.
The following, however, calls for the reduction of the penalty: (1) the prohibition against the
imposition of the penalty of death in accordance with Republic Act No. 9346; 142 and (2) the
privileged mitigating circumstance of minority of the appellant, which has the effect of
reducing the penalty one degree lower than that prescribed by law, pursuant to Article 68 of
the Revised Penal Code.143
Relying on People v. Bon,144 the Court of Appeals excluded death from the graduation of
penalties provided in Article 71 of the Revised Penal Code. 145 Consequently, in its
appreciation of the privileged mitigating circumstance of minority of appellant, it lowered
the penalty one degree from reclusion perpetua and sentenced appellant to suffer the
indeterminate penalty of six (6) years and one (1) day to twelve (12) years of prision mayor,
as minimum, to seventeen (17) years and four (4) months of reclusion temporal, in its
medium period, as maximum.146
We differ.
In a more recent case,147 the Court En Banc, through the Honorable Justice Teresita J.
Leonardo-de Castro, clarified:
Under Article 68 of the Revised Penal Code, when the offender is a minor under 18 years,
the penalty next lower than that prescribed by law shall be imposed, but always in the
proper period. However, for purposes of determining the proper penalty because of
the privileged mitigating circumstance of minority, the penalty of death is still
the penalty to be reckoned with. Thus, the proper imposable penalty for the accusedappellant is reclusion perpetua.148 (Emphasis supplied.)
Accordingly, appellant should be meted the penalty of reclusion perpetua.
Civil Liability
We have consistently ruled that:
The litmus test xxx in the determination of the civil indemnity is the heinous character of
the crime committed, which would have warranted the imposition of the death penalty,
regardless of whether the penalty actually imposed is reduced to reclusion perpetua.149
Likewise, the fact that the offender was still a minor at the time he committed the crime has
no bearing on the gravity and extent of injury suffered by the victim and her family. 150 The
respective awards of civil indemnity and moral damages in the amount of P75,000.00 each
are, therefore, proper.151
Accordingly, despite the presence of the privileged mitigating circumstance of minority
which effectively lowered the penalty by one degree, we affirm the damages awarded by
the Court of Appeals in the amount of P75,000.00 as civil indemnity and P75,000.00 as
moral damages. And, consistent with prevailing jurisprudence, 152 the amount of exemplary
damages should be increased from P25,000.00 to P30,000.00.
Automatic Suspension of Sentence; Duration; Appropriate Disposition after the Lapse of the
Period of Suspension of Sentence
Republic Act No. 9344 warrants the suspension of sentence of a child in conflict with the law
notwithstanding that he/she has reached the age of majority at the time the judgment of
conviction is pronounced. Thus:
SEC. 38.
years of
charged,
from the

Automatic Suspension of Sentence. - Once the child who is under eighteen (18)
age at the time of the commission of the offense is found guilty of the offense
the court shall determine and ascertain any civil liability which may have resulted
offense committed. However, instead of pronouncing the judgment of conviction,

the court shall place the child in conflict with the law under suspended sentence, without
need of application: Provided, however, That suspension of sentence shall still be
applied even if the juvenile is already eighteen (18) years of age or more at the
time of the pronouncement of his/her guilt. (Emphasis supplied.)
xxxx
Applying Declarador v. Gubaton,153 which was promulgated on 18 August 2006, the Court of
Appeals held that, consistent with Article 192 of Presidential Decree No. 603, as
amended,154 the aforestated provision does not apply to one who has been convicted of an
offense punishable by death, reclusion perpetua or life imprisonment.155
Meanwhile, on 10 September 2009, this Court promulgated the decision in Sarcia,156
overturning the ruling in Gubaton. Thus:
The xxx provision makes no distinction as to the nature of the offense committed by the
child in conflict with the law, unlike P.D. No. 603 and A.M. No. 02-1-18-SC. The said P.D. and
Supreme Court (SC) Rule provide that the benefit of suspended sentence would not apply to
a child in conflict with the law if, among others, he/she has been convicted of an offense
punishable by death, reclusion perpetua or life imprisonment. In construing Sec. 38 of R.A.
No. 9344, the Court is guided by the basic principle of statutory construction that when the
law does not distinguish, we should not distinguish. Since R.A. No. 9344 does not distinguish
between a minor who has been convicted of a capital offense and another who has been
convicted of a lesser offense, the Court should also not distinguish and should apply the
automatic suspension of sentence to a child in conflict with the law who has been found
guilty of a heinous crime.157
The legislative intent reflected in the Senate deliberations 158 on Senate Bill No. 1402
(Juvenile Justice and Delinquency Prevention Act of 2005) further strengthened the new
position of this Court to cover heinous crimes in the application of the provision on the
automatic suspension of sentence of a child in conflict with the law. The pertinent portion of
the deliberation reads:
If a mature minor, maybe 16 years old to below 18 years old is charged, accused with, or
may have committed a serious offense, and may have acted with discernment, then the
child could be recommended by the Department of Social Welfare and Development
(DSWD), by the Local Council for the Protection of Children (LCPC), or by [Senator Miriam
Defensor-Santiagos] proposed Office of Juvenile Welfare and Restoration to go through a
judicial proceeding; but the welfare, best interests, and restoration of the child should still
be a primordial or primary consideration. Even in heinous crimes, the intention should still
be the childs restoration, rehabilitation and reintegration. xxx (Italics supplied in Sarcia.)159
On 24 November 2009, the Court En Banc promulgated the Revised Rule on Children in
Conflict with the Law, which reflected the same position.160
These developments notwithstanding, we find that the benefits of a suspended sentence
can no longer apply to appellant. The suspension of sentence lasts only until the child in
conflict with the law reaches the maximum age of twenty-one (21) years. 161 Section 40162 of
the law and Section 48163 of the Rule are clear on the matter. Unfortunately, appellant is
now twenty-five (25) years old.
Be that as it may, to give meaning to the legislative intent of the Act, the promotion of the
welfare of a child in conflict with the law should extend even to one who has exceeded the
age limit of twenty-one (21) years, so long as he/she committed the crime when he/she was
still a child. The offender shall be entitled to the right to restoration, rehabilitation and
reintegration in accordance with the Act in order that he/she is given the chance to live a
normal life and become a productive member of the community. The age of the child in
conflict with the law at the time of the promulgation of the judgment of conviction is not
material. What matters is that the offender committed the offense when he/she was still of
tender age.
Thus, appellant may be confined in an agricultural camp or any other training facility in
accordance with Sec. 51 of Republic Act No. 9344. 164

Sec. 51. Confinement of Convicted Children in Agricultural Camps and Other Training
Facilities. A child in conflict with the law may, after conviction and upon order of the court,
be made to serve his/her sentence, in lieu of confinement in a regular penal institution, in
an agricultural camp and other training facilities that may be established, maintained,
supervised and controlled by the BUCOR, in coordination with the DSWD.
Following the pronouncement in Sarcia, 165 the case shall be remanded to the court of origin
to effect appellants confinement in an agricultrual camp or other training facility.
WHEREFORE, the Decision dated 29 August 2007 of the Court of Appeals in CA-G.R. CR HC
No. 00213 finding appellant Hermie M. Jacinto guilty beyond reasonable doubt of qualified
rape is AFFIRMED with the following MODIFICATIONS: (1) the death penalty imposed on
the appellant is reduced to reclusion perpetua; and (2) appellant is ordered to pay the
victim P75,000.00 as civil indemnity, P75,000.00 as moral damages, and P30,000.00 as
exemplary damages. The case is hereby REMANDED to the court of origin for its
appropriate action in accordance with Section 51 of Republic Act No. 9344.
SO ORDERED.

GEMMA T. JACINTO,

G.R. No. 162540

Petitioner,

Present:

YNARES-SANTIAGO, J.,
Chairperson,
- versus -

CHICO-NAZARIO,
VELASCO, JR.,
NACHURA, and
PERALTA, JJ.

PEOPLE OF THE PHILIPPINES,

Promulgated:

Respondent.

July 13, 2009

x-----------------------------------------------------------------------------------------x
DECISION
PERALTA, J.:

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

seeking the reversal of the Decision 47[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 Resolution48[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 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.
CONTRARY TO LAW.49[3]

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.
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,
47
48
49

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.
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. 50[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.51[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.52[6]
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.

50
51
52

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. 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.
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.
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 crossexamination 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.53[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.
SO ORDERED.
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.
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.
2.

Whether or not petitioner can be convicted of a crime not charged in

the information;
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.54[8]

The petition deserves considerable thought.

53
54

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.
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.
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.
The Court must resolve the issue in the negative.
Intod v. Court of Appeals55[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:
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
55

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 Intod56[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.
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 57[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
56
57

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. People58[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.
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
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 59[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
58
59

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.
G.R. No. 168546
MICHAEL PADUA,
Petitioner,
Present:

QUISUMBING, J., Chairperson,

CARPIO MORALES,
- versus TINGA,
VELASCO, JR., and
BRION, JJ.

Promulgated:
PEOPLE OF THE PHILIPPINES,
Respondent.
July 23, 2008

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
DECISION
QUISUMBING, J.:
This petition for review assails the Decision 60[1] dated April 19, 2005 and
Resolution61[2] dated June 14, 2005, of the Court of Appeals in CA-G.R. SP No. 86977 which
had respectively dismissed Michael Paduas petition for certiorari and denied his motion for
reconsideration. Paduas petition for certiorari before the Court of Appeals assailed the
60
61

Orders dated May 11, 200462[3] and July 28, 200463[4] of the Regional Trial Court (RTC),
Branch 168, Pasig City, which had denied his petition for probation.
The facts, culled from the records, are as follows:
On June 16, 2003, petitioner Michael Padua and Edgar Allan Ubalde were charged
before the RTC, Branch 168, Pasig City of violating Section 5, 64[5] Article II of Republic Act
No. 9165,65[6] otherwise known as the Comprehensive Dangerous Drugs Act of 2002, for
selling dangerous drugs.66[7] The Information reads:
The Prosecution, through the undersigned Public Prosecutor, charges
Edgar Allan Ubalde y Velchez a.k.a. Allan and Michael Padua y Tordel
a.k.a. Mike, with the crime of violation of Sec. 5, Art. II, Republic Act No. 9165
in relation to R.A. [No.] 8369, Sec. 5 par. (a) and (i), committed as follows:
On or about June 6, 2003, in Pasig City, and within the jurisdiction of this
Honorable Court, the accused, Edgar Allan Ubalde y Velchez and Michael
Padua y Tordel, a minor, seventeen (17) years old, conspiring and
confederating together and both of them mutually helping and aiding
one another, not being lawfully authorized to sell any dangerous drug,
did then and there willfully, unlawfully and feloniously sell, deliver and
give away to PO1 Roland A. Panis, a police poseur-buyer, one (1) folded
newsprint containing 4.86 grams of dried marijuana fruiting tops, which
was found positive to the tests for marijuana, a dangerous drug, in
violation of the said law.
Contrary to law.67[8]
When arraigned on October 13, 2003, Padua, assisted by his counsel de oficio,
entered a plea of not guilty.68[9]
During the pre-trial conference on February 2, 2004, however, Paduas counsel
manifested that his client was willing to withdraw his plea of not guilty and enter a plea of
guilty to avail of the benefits granted to first-time offenders under Section 70 69[10] of Rep.
62
63
64
65
66
67
68
69

Act No. 9165. The prosecutor interposed no objection. 70[11] Thus, the RTC on the same date
issued an Order71[12] stating that the former plea of Padua of not guilty was considered
withdrawn. Padua was re-arraigned and pleaded guilty. Hence, in a Decision 72[13] dated
February 6, 2004, the RTC found Padua guilty of the crime charged:
In view of the foregoing, the Court finds accused Michael Padua y Tordel
guilty of [v]iolation of Sec. 5 Art. II of R.A. No. 9165 in relation to R.A. No. 8369
Sec. 5 par. (a) and (i) thereof, and therefore, sentences him to suffer an
indeterminate sentence of six (6) years and one (1) day of Prision Mayor as
minimum to seventeen (17) years and four (4) months of reclusion temporal as
maximum and a fine of Five Hundred Thousand Pesos (P500,000.00).
No subsidiary imprisonment, however, shall be imposed should [the]
accused fail to pay the fine pursuant to Art. 39 par. 3 of the Revised Penal
Code.
SO ORDERED.73[14]
Padua subsequently filed a Petition for Probation 74[15] dated February 10, 2004
alleging that he is a minor and a first-time offender who desires to avail of the benefits of
probation under Presidential Decree No. 96875[16] (P.D. No. 968), otherwise known as The
Probation Law of 1976 and Section 70 of Rep. Act No. 9165. He further alleged that he
possesses all the qualifications and none of the disqualifications under the said laws.
The RTC in an Order76[17] dated February 10, 2004 directed the Probation Officer of
Pasig

City

to

conduct

Post-Sentence

Investigation

and

submit

report

and

recommendation within 60 days from receipt of the order. The City Prosecutor was also
directed to submit his comment on the said petition within five days from receipt of the
order.
On April 6, 2004, Chief Probation and Parole Officer Josefina J. Pasana submitted a
Post-Sentence Investigation Report to the RTC recommending that Padua be placed on
probation.77[18]
70
71
72
73
74
75
76
77

However, on May 11, 2004, public respondent Pairing Judge Agnes Reyes-Carpio
issued an Order denying the Petition for Probation on the ground that under Section
2478[19] of Rep. Act No. 9165, any person convicted of drug trafficking cannot avail of the
privilege granted by the Probation Law. The court ruled thus:
Before this Court now is the Post-Sentence Investigation Report (PSIR)
on minor Michael Padua y Tordel prepared by Senior Parole and Probation
Officer Teodoro Villaverde and submitted by the Chief of the Pasig City Parole
and Probation Office, Josefina J. Pasana.
In the aforesaid PSIR, Senior PPO Teodoro Villaverde recommended that
minor Michael Padua y Tordel be placed on probation, anchoring his
recommendation on Articles 189 and 192 of P.D. 603, otherwise known as the
Child and Welfare Code, as amended, which deal with the suspension of
sentence and commitment of youthful offender. Such articles, therefore, do not
find application in this case, the matter before the Court being an application
for probation by minor Michael Padua y Tordel and not the suspension of his
sentence.
On the other hand, Section 70 is under Article VIII of R.A. 9165 which
deals with the Program for Treatment and Rehabilitation of Drug Dependents.
Sections 54 to 76, all under Article VIII of R.A. 9165 specifically refer to
violations of either Section 15 or Section 11. Nowhere in Article VIII was
[v]iolation of Section 5 ever mentioned.
More importantly, while the provisions of R.A. 9165, particularly Section
70 thereof deals with Probation or Community Service for First- Time Minor
Offender in Lieu of Imprisonment, the Court is of the view and so holds that
minor Michael Padua y Tordel who was charged and convicted of violating
Section 5, Article II, R.A. 9165, cannot avail of probation under said section in
view of the provision of Section 24 which is hereunder quoted:
Sec. 24. Non-Applicability of the Probation Law for Drug
Traffickers and Pushers. Any person convicted for drug trafficking
or pushing under this Act, regardless of the penalty imposed by
the Court, cannot avail of the privilege granted by the Probation
Law or Presidential Decree No. 968, as amended. (underlining
supplied)
WHEREFORE, premises considered, the Petition for Probation filed by
Michael Padua y Tord[e]l should be, as it is hereby DENIED.
SO ORDERED.79[20]
Padua filed a motion for reconsideration of the order but the same was denied on July
28, 2004. He filed a petition for certiorari under Rule 65 with the Court of Appeals assailing
the order, but the Court of Appeals, in a Decision dated April 19, 2005, dismissed his
petition. The dispositive portion of the decision reads:
78
79

WHEREFORE, in view of the foregoing, the petition is hereby DENIED

for lack of merit and ordered DISMISSED.
SO ORDERED.80[21]
Padua filed a motion for reconsideration of the Court of Appeals decision but it was
denied. Hence, this petition where he raises the following issues:
I.
WHETHER OR NOT THE COURT OF APPEALS ERRED IN AFFIRMING THE DENIAL
OF THE PETITION FOR PROBATION WHICH DEPRIVED PETITIONERS RIGHT AS A
MINOR UNDER ADMINISTRATIVE ORDER NO. [02-1-18-SC] OTHERWISE KNOWN
AS [THE] RULE ON JUVENILES IN CONFLICT WITH THE LAW.
II.
WHETHER OR NOT [THE] ACCUSED[S] RIGHT [TO BE RELEASED UNDER
RECOGNIZANCE] HAS BEEN VIOLATED OR DEPRIVED IN THE LIGHT OF R.A.
9344 OTHERWISE KNOWN AS AN ACT ESTABLISHING A COMPREHENSIVE
JUVENILE JUSTICE AND WELFARE SYSTEM, CREATING THE JUVENILE JUSTICE
AND WELFARE COUNCIL UNDER DEPARTMENT OF JUSTICE APPROPRIATING
FUNDS THEREFOR AND OTHER PURPOSES.81[22]
The Office of the Solicitor General (OSG), representing public respondent, opted to
adopt its Comment82[23] as its Memorandum. In its Comment, the OSG countered that
I.
THE TRIAL COURT AND THE COURT OF APPEALS HAVE LEGAL BASIS IN
APPLYING SECTION 24, ARTICLE II OF R.A. 9165 INSTEAD OF SECTION 70,
ARTICLE VIII OF THE SAME LAW.
II.
SECTION 32 OF A.M. NO. 02-1-18-SC OTHERWISE KNOWN AS THE RULE ON
JUVENILES IN CONFLICT WITH THE LAW HAS NO APPLICATION TO THE INSTANT
CASE.83[24]
Simply, the issues are: (1) Did the Court of Appeals err in dismissing Paduas petition
for certiorari assailing the trial courts order denying his petition for probation? (2) Was
Paduas right under Rep. Act No. 9344,84[25] the Juvenile Justice and Welfare Act of 2006,
80
81
82
83
84

violated? and (3) Does Section 32 85[26] of A.M. No. 02-1-18-SC otherwise known as the Rule
on Juveniles in Conflict with the Law have application in this case?
As to the first issue, we rule that the Court of Appeals did not err in dismissing
Paduas petition for certiorari.
For certiorari to prosper, the following requisites must concur: (1) the writ is directed
against a tribunal, a board or any officer exercising judicial or quasi-judicial functions; (2)
such tribunal, board or officer has acted without or in excess of jurisdiction, or with grave
abuse of discretion amounting to lack or excess of jurisdiction; and (3) there is no appeal or
any plain, speedy and adequate remedy in the ordinary course of law. 86[27]
Without jurisdiction means that the court acted with absolute lack of authority. There
is excess of jurisdiction when the court transcends its power or acts without any statutory
authority. Grave abuse of discretion implies such capricious and whimsical exercise of
judgment as to be equivalent to lack or excess of jurisdiction. In other words, power is
exercised in an arbitrary or despotic manner by reason of passion, prejudice, or personal
hostility, and such exercise is so patent or so gross as to amount to an evasion of a positive
duty or to a virtual refusal either to perform the duty enjoined or to act at all in
contemplation of law.87[28]
A review of the orders of the RTC denying Paduas petition for probation shows that the
RTC neither acted without jurisdiction nor with grave abuse of discretion because it merely
applied the law and adhered to principles of statutory construction in denying Paduas petition
for probation.
Padua was charged and convicted for violation of Section 5, Article II of Rep. Act No.
9165 for selling dangerous drugs. It is clear under Section 24 of Rep. Act No. 9165 that any
person convicted of drug trafficking cannot avail of the privilege of probation, to wit:
SEC. 24. Non-Applicability of the Probation Law for Drug Traffickers and
Pushers. Any person convicted for drug trafficking or pushing under
this Act, regardless of the penalty imposed by the Court, cannot avail
of the privilege granted by the Probation Law or Presidential Decree
No. 968, as amended. (Emphasis supplied.)
The law is clear and leaves no room for interpretation. Any person convicted for drug
trafficking or pushing, regardless of the penalty imposed, cannot avail of the privilege
granted by the Probation Law or P.D. No. 968. The elementary rule in statutory construction
is that when the words and phrases of the statute are clear and unequivocal, their meaning
must be determined from the language employed and the statute must be taken to mean
85
86
87

exactly what it says.88[29] If a statute is clear, plain and free from ambiguity, it must be
given its literal meaning and applied without attempted interpretation. This is what is
known as the plain-meaning rule or verba legis. It is expressed in the maxim, index animi
sermo, or speech is the index of intention. 89[30] Furthermore, there is the maxim verba
legis non est recedendum, or from the words of a statute there should be no departure. 90
[31]
Moreover, the Court of Appeals correctly pointed out that the intention of the
legislators in Section 24 of Rep. Act No. 9165 is to provide stiffer and harsher punishment for
those persons convicted of drug trafficking or pushing while extending a sympathetic and
magnanimous hand in Section 70 to drug dependents who are found guilty of violation of
Sections 1191[32] and 1592[33] of the Act. The law considers the users and possessors of
illegal drugs as victims while the drug traffickers and pushers as predators. Hence, while drug
traffickers and pushers, like Padua, are categorically disqualified from availing the law on
probation, youthful drug dependents, users and possessors alike, are given the chance to
mend their ways.93[34] The Court of Appeals also correctly stated that had it been the
intention of the legislators to exempt from the application of Section 24 the drug traffickers
and pushers who are minors and first time offenders, the law could have easily declared so. 94
[35]
The law indeed appears strict and harsh against drug traffickers and drug pushers while
protective of drug users. To illustrate, a person arrested for using illegal or dangerous drugs
is meted only a penalty of six months rehabilitation in a government center, as minimum,
for the first offense under Section 15 of Rep. Act No. 9165, while a person charged and
convicted of selling dangerous drugs shall suffer life imprisonment to death and a fine
ranging

from

Five

Hundred

Thousand

Pesos

(P500,000.00)

to

Ten

Million

Pesos

(P10,000,000.00) under Section 5, Rep. Act No. 9165.

As for the second and third issues, Padua cannot argue that his right under Rep. Act
No. 9344, the Juvenile Justice and Welfare Act of 2006 was violated. Nor can he argue that
Section 32 of A.M. No. 02-1-18-SC otherwise known as the Rule on Juveniles in Conflict with

88
89
90
91
92
93
94

the Law has application in this case. Section 68 95[36] of Rep. Act No. 9344 and Section 32
of A.M. No. 02-1-18-SC both pertain to suspension of sentence and not probation.
Furthermore, suspension of sentence under Section 38 96[37] of Rep. Act No. 9344
could no longer be retroactively applied for petitioners benefit. Section 38 of Rep. Act No.
9344 provides that once a child under 18 years of age is found guilty of the offense
charged, instead of pronouncing the judgment of conviction, the court shall place the child
in conflict with the law under suspended sentence. Section 40 97[38] of Rep. Act No. 9344,
however, provides that once the child reaches 18 years of age, the court shall determine
whether to discharge the child, order execution of sentence, or extend the suspended
sentence for a certain specified period or until the child reaches the maximum age of
21 years. Petitioner has already reached 21 years of age or over and thus, could no longer
be considered a child98[39] for purposes of applying Rep. Act 9344. Thus, the application of
Sections 38 and 40 appears moot and academic as far as his case is concerned.
WHEREFORE, the petition is DENIED. The assailed Decision dated April 19, 2005
and the Resolution dated June 14, 2005 of the Court of Appeals are AFFIRMED.
SO ORDERED.

G.R. No. 182750

January 20, 2009

RODEL
URBANO,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
95
96
97
98

Petitioner,

DECISION
VELASCO, JR., J.:
This petition for review under Rule 45 seeks to reverse and set aside the Decision 1 dated
January 25, 2008 of the Court of Appeals (CA) in CA-G.R. CR No. 25371 which affirmed with
modification the April 30, 2001 Decision 2 of the Regional Trial Court (RTC), Branch 39 in
Lingayen, Pangasinan in Criminal Case No. L-5028. The RTC found petitioner Rodel Urbano
guilty beyond reasonable doubt of the crime of Homicide.
The Facts
In an Information filed before the RTC, petitioner was charged with Homicide, committed as
follows:
That on or about the 28th of September 1993 in the evening, in Barangay Poblacion,
Municipality of Lingayen, Province of Pangasinan, Philippines and within the jurisdiction of
this Honorable Court, the above-named accused, with intent to kill, did then and there
willfully, unlawfully and feloniously attack, assault, hit and maul Brigido Tomelden, inflicting
upon him mortal injuries and as borne out from the autopsy report the following findings:
EXTERNAL FINDINGS:
A- Softened portion of the scalp over (R) occipito-temporal area about 5 inches above
and posterior to the (R) ear.
B- Clotted blood over the (R) occipito-temporal area.
C- No lacerations noted.
INTERNAL FINDINGS:
A- On opening the skull there is oozing of dark colored blood from the brain
substances.
B- More darked blood vessels at the (L) side of the brain.
CAUSE OF DEATH:
Cardio-respiratory arrest secondary to cerebral concussion with resultant cerebral
hemorrhage due to mauling incident.
Which directly caused his death, to the damage and prejudice of the heirs of the said
Brigido Tomelden.
CONTRARY to Article 249 of the Revised Penal Code.
Petitioner, when arraigned, pleaded not guilty to the charge. Following the parties waiver of
pre-trial, trial on the merits then ensued.
As summarized in the decision subject of review, the prosecutions evidence established the
following facts:
On September 28, 1993, at around 8:00 p.m., the victim Brigido Tomelden and petitioner
were at the compound of the Lingayen Water District (LIWAD) in Lingayen, Pangasinan,
having just arrived from a picnic in the nearby town of Bugallon, Pangasinan, where, with
some other co-workers, they drunk beer in a restaurant. While inside the compound, the

two had a heated altercation in the course of which Tomelden hurled insulting remarks at
petitioner. Reacting, petitioner asked why Tomelden, when drunk, has the penchant of
insulting petitioner.
The exchange of words led to an exchange of blows. Cooler heads succeeded in breaking up
the fight, but only for a brief moment as the protagonists refused to be pacified and
continued throwing fist blows at each other. Then petitioner delivered a "lucky punch," as
described by eyewitness Orje Salazar, on Tomeldens face, which made Tomelden topple
down. Tomelden was on the verge of hitting his head on the ground had their companions
not caught him and prevented the fall. The blow, however, caused Tomeldens nose to bleed
and rendered him unconscious.
Petitioner and his other co-workers brought Tomelden to the office of the LIWAD general
manager where he spent the night. He remained in the compound the following day,
September 29, 1993. Upon arriving home at around 6:00 p.m. of that day, Tomelden
informed his wife, Rosario, of the fight the previous night and of his having been rendered
unconscious. He complained of pain in his nape, head, and ear which impelled Rosario to
immediately bring him to the Lingayen Community Hospital where Dr. Daisy Arellano
examined him and treated his lacerated left index finger, contusions, and hematoma at the
right cerebrum.
On October 2 and 7, 1993, Tomelden went back to the hospital complaining of dizziness,
headache, and other pains. The attending doctors observed the patient to be in a state of
drowsiness and frequent vomiting. On October 8, 1993, Rosario brought Tomelden to the
Sison Memorial Provincial Hospital in Dagupan City, where the attending physician, Dr.
Ramon Ramos, diagnosed Tomelden suffering from "brain injury, secondary to mauling to
consider cerebral hemorrhage."3
Tomelden was confined in the provincial hospital until 3:00 p.m. of October 10, 1993, and,
due to financial constraints, was thereafter discharged despite signs negating physical
condition improvement. Upon reaching their house, however, Tomelden again complained of
extreme head pain, prompting his wife to bring him back to the Lingayen Community
Hospital where Dr. Arellano again attended to him. This time, things turned for the worst,
the doctor noting that Tomelden appeared to be semi-conscious, sleepy, uncooperative, and
not responding to any stimulant. Tomelden died at 9:00 p.m. of that day due, per Dr.
Arellano, to "cardio-respiratory arrest secondary to cerebral concussion with resultant
cerebral hemorrhage due to mauling incident."
The defense presented petitioner who denied having any intention to kill, asserting that
hypertension, for which Tomelden was receiving treatment, was the cause of the latters
death.
The Ruling of the RTC
On April 30, 2001, the RTC rendered judgment finding petitioner guilty as charged. The fallo
of the RTCs decision reads:
WHEREFORE, the prosecution having established beyond reasonable doubt the guilt of the
accused of the crime of HOMICIDE as defined and penalized under Art. 249 of the Revised
Penal Code, this Court in the absence of any modifying circumstances, hereby sentences
said accused to suffer the indeterminate prison term of eight (8) years and one (1) day of
Prision Mayor as minimum to seventeen (17) years and four (4) months of Reclusion
Temporal as maximum and to indemnify the legal heirs of the victim in the amount of
PHP50,000.00, plus cost of the suit.
The period of preventive imprisonment suffered by the accused shall be credited in full in
the service of his sentence in accordance with Art. 29 of the Revised Penal Code. 4

Therefrom, petitioner appealed to the CA, his recourse docketed as CA-G.R. CR No. 25371.
The Ruling of the CA
On January 25, 2008, the CA rendered a decision, affirming the conviction of petitioner, but
awarding moral damages to the heirs of Tomelden, disposing as follows:
WHEREFORE, in the light of the foregoing, the appeal of the accused-appellant is
DISMISSED. The decision appealed from is AFFIRMED with MODIFICATION that an award of
P50,000.00 moral damages is GRANTED.
Remand of the records should immediately follow finality for the consequent execution of
the decision.5
The appellate court held that the commission by petitioner of the crime of homicide, as
defined and penalized under Article 2496 of the Revised Penal Code (RPC), had been proved
beyond moral certainty of doubt, pointing to the lucky punch as the proximate cause of
Tomeldens hospitalization and ultimately his death. And like the RTC, the CA found no
qualifying circumstance to increase or lower the penalty.
Following the denial of petitioners motion for reconsideration, per the CA Resolution 7 of
April 24, 2008, he interposed this petition.
The Issues
On essentially the same issues raised before the CA, petitioner now urges the Court to set
aside the appealed decision, or at least modify it, maintaining that the appellate court:
I. x x x erred in affirming the decision of the [RTC] finding [him] guilty beyond
reasonable doubt of the crime charged.
II. x x x erred in not appreciating the mitigating circumstances of sufficient
provocation on the part of the victim and lack of intent to commit so grave a wrong in
favor of the petitioner.8
The Courts Ruling
The petition is partly meritorious.
Homicide Duly Proved
It is petitioners threshold posture that the fistic injury Tomelden sustained was not "the
main underlying cause of his death."9 In this regard, petitioner draws attention to the fact
that the fist fight in question happened on September 28, 1993. Tomelden, however, died
only on October 10, 1993 or 12 days thereafter and that, during the intervening days,
particularly September 29, 1993, the deceased regularly reported for work. Moreover,
petitioner avers that days prior to the fateful incident of September 28, 1993, Tomelden
failed to come to work as he was suffering from malignant hypertension and that this
circumstance greatly engenders doubt as to the proximate cause of the victims death.
Petitioner, thus, contends that he could only be adjudged guilty of physical injuries. 10
We are not persuaded.
The prosecution witness, Salazar, testified about petitioners lucky punch hitting Tomelden
right smack on the face. And even if Tomeldens head did not hit the ground as his coworkers averted that actuality, that punch gave him a bleeding nose and rendered him
unconscious right after the September 28, 1993 fight. From then on, Tomelden was in and

out of the hospital complaining of headache, among other pains, until his demise on
October 10, 1993, or 12 days after the blow that made Tomelden unconscious.
Significantly, Dr. Arellano testified conducting an autopsy on the body of Tomelden and
stressed that the "softened portion of the scalp over (R) occipito-temporal area about 5
inches above and posterior to the (R) ear" of the victim could have been caused by a fist
blow. She also opined that the fist blow which landed on Tomeldens head could have
shaken his brain which caused the cerebral concussion; and that the cause of the victims
death was "cardio-respiratory arrest secondary to cerebral concussion with resultant
cerebral hemorrhage due to mauling incident."
The combined effects of the testimonies of Salazar and Dr. Arellano, buttressed by that of
Rosario who related about her husbands post September 28, 1993 severe head pain,
clearly establish beyond cavil the cause of Tomeldens death and who was liable for it.
The CA observed aptly:
It was through the direct accounts of the prosecution witnesses of the events that
transpired during the fisticuff incident x x x more specifically the landing of the "lucky
punch" on the face of [Tomelden], taken together with the result of the medical
examinations and autopsy report which described the death of the victim as "cardiorespiratory arrest secondary to cerebral concussion with resultant cerebral hemorrhage due
to mauling incident" that we are convinced that the "lucky punch" was the proximate cause
of [Tomeldens] death. The prosecution had satisfactorily proven that it was only after the
incident that transpired on September 28, 1993 that the victim was hospitalized on several
occasions until he expired, twelve days later x x x. It is moreover of no consequence
whether the victim was able to report for work during the intervening days x x x.
We find no reason to depart from the doctrinal rule that great weight is accorded the factual
findings of the trial court, particularly with respect to the ascertainment of the credibility of
witnesses. There was absence of any ill motive on the part of x x x Salazar who in fact
testified that he was a friend of both [petitioner] and [Tomelden]; more so on the part of the
attending physicians.11 x x x
Petitioners suggestion that Tomelden succumbed to heart ailment and/or that his death
was the result of his malignant hypertension is untenable, given that the post-mortem
report yields no positive indication that he died from such malady.
Mitigating Circumstances Present
Petitioner next contends that the mitigating circumstances of no intention to commit so
grave a wrong and sufficient provocation on the part of the victim ought to be appreciated
in petitioners favor.
On this score, we agree with petitioner.
Paragraphs 3 and 4 of Art. 13, RPC provide as follows:
Art. 13. Mitigating circumstances.The following are mitigating circumstances:
xxxx
3. That the offender had no intention to commit so grave a wrong as that committed.
4. That sufficient provocation or threat on the part of the offended party immediately
preceded the act.

When the law speaks of provocation either as a mitigating circumstance or as an essential

element of self-defense, the reference is to an unjust or improper conduct of the offended
party capable of exciting, inciting, or irritating anyone; 12 it is not enough that the
provocative act be unreasonable or annoying; 13 the provocation must be sufficient to excite
one to commit the wrongful act 14 and should immediately precede the act. 15 This third
requisite of self-defense is present: (1) when no provocation at all was given to the
aggressor; (2) when, even if provocation was given, it was not sufficient; (3) when even if
the provocation was sufficient, it was not given by the person defending himself; or (4)
when even if a provocation was given by the person defending himself, it was not proximate
and immediate to the act of aggression.16
In the instant case, Tomeldens insulting remarks directed at petitioner and uttered
immediately before the fist fight constituted sufficient provocation. This is not to mention
other irritating statements made by the deceased while they were having beer in Bugallon.
Petitioner was the one provoked and challenged to a fist fight.
Petitioners unrebutted testimony on the events immediately preceding the fisticuff and
earlier dovetails with the testimony of Salazar.
In gist, petitioner testified being, in the afternoon of September 28, 1993, in the nearby
town of Bugallon for a picnic. He was with Tomelden and several others, including
Dominador Navarro, Chairperson of LIWAD. At a restaurant in Bugallon, the group ordered
goats meat and drank beer. When it was time to depart, Navarro asked petitioner to inform
Tomelden, then seated in another table, to prepare to leave.
When so informed, Tomelden insulted petitioner, telling the latter he had no business
stopping him from further drinking as he was paying for his share of the bill. Chastised,
petitioner returned to his table to report to Navarro. At that time, petitioner saw that
Tomelden had already consumed 17 bottles of beer. In all, the group stayed at the picnic
place for three and a half hours before returning to the LIWAD.
Upon reaching the LIWAD compound, Tomelden allegedly slapped and hurled insults at him,
calling him "sipsip" just to maintain his employment as Navarros tricycle driver. Tomelden
allegedly then delivered several fist and kick blows at petitioner, a couple of which hit him
despite his evasive actions. Petitioner maintained that he only boxed the victim in
retaliation, landing that lucky punch in the course of parrying the latters blows.
The following testimony of Salazar attests to the provocative acts of Tomelden and to his
being the aggressor:
PROSECUTOR CHIONG
Q After you heard from the accused those remarks, what if any did the victim replied if any?
WITNESS
A They exchanged angry words, sir.
Q What were these words?
A Rodel Urbano said, "When youre already drunk, you keep on insulting me."
Q And what was the reply if any?
A Akina tua lanti".
PROS. CHIONG

Q Who said that?

WITNESS
A It was Brigido Tomelden, sir.
Q And what transpired next?
A After that they exchange words, sir. " If you like we will have a fist fight" he said.
Q Who said that?
A Brigido Tomelden said.
Q At that time, were you already inside the compound of the LIWAD?
A Yes, sir.
Q After the victim allegedly told the accused, "If you want a fist fight," what transpired
next?
A Rodel Urbano said, "if it is a fist fight we fight." 17
Q And when you were already in the compound of LIWAD Office, Brigido Tomelden was
challenging the accused for a fist fight?
A Yes, sir.
Q And the accused refused to accept the challenge?
A Yes because Mr. Brigido Tomelden is very much bigger than Mr. Rodel Urbano.
He is stouter than the accused.
Q But finally the fist fight took place?
A Yes, sir.18
PROS. CHIONG
Q When the victim and this accused had this fight, fist fight, they exchanged blows, but
there was this lucky punch that hit the victim because the victim fall down, is that correct?
A When I stop pacifying them x x x, I saw Biring the late Brigido Tomelden, he was much
aggressive than the accused, sir.
Q You mean that although it was the victim who was more aggressive than the accused
here, he also [threw] punches but sometime some of his punches most of which did not hit
the victim?
A He tried to parry the blows of the late Brigido Tomelden, sir.
Q Because he tried to parry the blow of the Brigido Tomelden, when the accused throw
punches, the punch was directed to the victim but most of them did not hit the victim, is
that what you saw?
A Yes, sir.19 (Emphasis added.)

It is abundantly clear from the above transcript that the provocation came from Tomelden.
In fact, petitioner, being very much smaller in height and heft, had the good sense of trying
to avoid a fight. But as events turned out, a fisticuff still ensued, suddenly ending when
petitioners lucky punch found its mark. In People v. Macaso, 20 a case where the accused
police officer shot and killed a motorist for repeatedly taunting him with defiant words, the
Court appreciated the mitigating circumstance of sufficient provocation or threat on the part
of the offended party immediately preceding the shooting. The Court had the same attitude
in Navarro v. Court of Appeals, 21 a case also involving a policeman who killed a man after
the latter challenged him to a fight. Hence, there is no rhyme or reason why the same
mitigating circumstance should not be considered in favor of petitioner.
Moreover, the mitigating circumstance that petitioner had no intention to commit so grave
a wrong as that committed should also be appreciated in his favor. While intent to kill may
be presumed from the fact of the death of the victim, this mitigating factor may still be
considered when attendant facts and circumstances so warrant, as in the instant case.
Consider: Petitioner tried to avoid the fight, being very much smaller than Tomelden. He
tried to parry the blows of Tomelden, albeit he was able, during the scuffle, to connect a
lucky punch that ended the fight. And lest it be overlooked, petitioner helped carry his
unconscious co-worker to the office of the LIWADs general manager. Surely, such gesture
cannot reasonably be expected from, and would be unbecoming of, one intending to
commit so grave a wrong as killing the victim. A bare-knuckle fight as a means to parry the
challenge issued by Tomelden was commensurate to the potential violence petitioner was
facing. It was just unfortunate that Tomelden died from that lucky punch, an eventuality
that could have possibly been averted had he had the financial means to get the proper
medical attention. Thus, it is clear that the mitigating circumstance of "no intention to
commit so grave a wrong as that committed" must also be appreciated in favor of petitioner
while finding him guilty of homicide. That petitioner landed a lucky punch at Tomeldens
face while their co-workers were trying to separate them is a compelling indicium that he
never intended so grave a wrong as to kill the victim.
Withal, with no aggravating circumstance and two mitigating circumstances appreciable in
favor of petitioner, we apply par. 5 of Art. 64, RPC, which pertinently provides:
Art. 64. Rules for the application of penalties which contain three periods.In cases in
which the penalties prescribed by law contain three periods, whether it be a single divisible
penalty or composed of three different penalties, each one of which forms a period in
accordance with the provisions of Articles 76 and 77, the courts shall observe for the
application of the penalty the following rules, according to whether there are or are no
mitigating or aggravating circumstances:
xxxx
5. When there are two or more mitigating circumstances and no aggravating circumstances
are present, the court shall impose the penalty next lower to that prescribed by law, in the
period that it may deem applicable, according to the number and nature of such
circumstances.
The prescribed penalty for homicide under Art. 249 of the RPC is reclusion temporal or from
12 years and one day to 20 years. With the appreciation of two mitigating circumstances of
no intention to commit so grave a wrong as that committed and of sufficient provocation
from the victim, and the application of par. 5 of Art. 64, RPC, the imposable penalty would,
thus, be the next lower penalty prescribed for homicide and this should be prision mayor or
from six years and one day to 12 years. Consequently, with the application of the
Indeterminate Sentence Law, petitioner ought to be incarcerated from prision correccional
as minimum and prision mayor as maximum. In view of the circumstances of the case,
considering that the petitioner never meant or intended to kill the victim, a prison term of
eight (8) years and one (1) day of prision mayor as maximum period is proper while the

period of two (2) years and four (4) months of prision correccional as minimum period is
reasonable.
We find no reason to modify the award of civil indemnity and moral damages.
WHEREFORE, the CA Decision dated January 25, 2008 in CA-G.R. CR No. 25371 is, in the
light of the presence and the appreciation of two mitigating circumstances in favor of
petitioner, hereby MODIFIED by decreasing the term of imprisonment. As thus modified,
petitioner Rodel Urbano is hereby sentenced to serve an indeterminate prison term of from
two (2) years and four (4) months of prision correccional, as minimum, to eight (8) years
and one (1) day of prision mayor, as maximum, with whatever imprisonment he has already
served fully credited in the service of this sentence. The rest of the judgment is hereby
AFFIRMED.
No pronouncement as to costs.
SO ORDERED.