THIRD DIVISION
[G.R. No. 116736. July 24, 1997]
PEOPLE OF THE PHILIPPINES, plaintiff-
appellee, vs. BENJAMIN ORTEGA, JR. y
CONJE, MANUEL GARCIA y RIVERA and
JOHN DOE, accused, BENJAMIN ORTEGA,
JR. y CONJE and MANUEL GARCIA y
RIVERA, accused-appellants.
DECISION
PANGANIBAN, J.:
A person who commits a felony is liable for the
direct, natural and logical consequences of his
wrongful act even where the resulting crime is
more serious than that intended. Hence, an
accused who originally intended to conceal and
to bury what he thought was the lifeless body of
the victim can be held liable as a principal, not
simply as an accessory, where it is proven that
the said victim was actually alive but
subsequently died as a direct result of such
concealment and burial. Nonetheless, in the
present case, Appellant Garcia can not be held
liable as a principal because the prosecution
failed to allege such death through drowning in
the Information. Neither may said appellant be
held liable as an accessory due to his
relationship with the principal killer, Appellant
Ortega, who is his brother-in-law.
Statement of the Case
This case springs from the joint appeal
interposed by Appellants Benjamin Ortega, Jr.
and Manuel Garcia from the Decision,[1] dated
February 9, 1994 written by Judge Adriano R.
Osorio,[2] finding them guilty of murder.
Appellants were charged by State Prosecutor
Bernardo S. Razon in an Information[3] dated
October 19, 1992, as follows:
That on or about October 17, 1992 in
Valenzuela, Metro Manila, Philippines
and within the jurisdiction of this
Honorable Court, the above-named
accused, conspiring together and
mutually helping one another, without
any justifiable cause, with treachery
and evident premeditation and with
abuse of superior strenght (sic) and
with deliberate intent to kill, did then
and there willfully, unlawfully and
feloniously attack, assault and stab
repeatedly with a pointed weapon on
the different parts of the body one
ANDRE MAR MASANGKAY y Ortega, Jr., on top of Andre Mar
ABLOLA, thereby inflicting upon the
latter serious physical injuries which
directly caused his death.
During arraignment, Appellants Ortega and
Garcia, assisted by counsel de oficio,[4] pleaded
not guilty to the charge.[5] Accused John Doe
was then at large.[6] After trial in due course, the
court a quo promulgated the questioned
Decision. The dispositive portion reads:[7]
WHEREFORE, finding accused
Benjamin Ortega, Jr. y Conje and
Manuel Garcia y Rivera [g]uilty beyond
reasonable doubt of the crime charged,
the Court hereby sentenced (sic) them
to suffer the penalty of RECLUSION
PERPETUA and to pay the costs of
suit.
Accused are hereby ordered to pay the
offended party the sum of P35,000.00
for funeral expenses of deceased
Andre Mar Masangkay and death
indemnity of P50,000.00.
The Notice of Appeal, dated March 9, 1994, was
thus filed by Atty. Evaristo P. Velicaria[8] who
took over from the Public Attorneys Office as
counsel for the accused.
The Facts
Evidence for the Prosecution
The trial court summarized the testimonies of
the prosecution witnesses as follows:[9]
Diosdado Quitlong substantially
testified that on October 15, 1992 at
about 5:30 in the afternoon, he, the
victim Andre Mar Masangkay, Ariel
Caranto, Romeo Ortega, Roberto San
Andres were having a drinking spree in
the compound near the house of
Benjamin Ortega, Jr. at Daangbakal,
Dalandanan, Valenzuela, Metro
Manila. That while they were drinking,
accused Benjamin Ortega, Jr. and
Manuel Garcia who were [already]
drunk arrived and joined them. That
victim Andre Mar Masangkay
answered the call of nature and went
to the back portion of the house. That
accused Benjamin Ortega, Jr. followed
him and later they [referring to the
participants in the drinking session]
heard the victim Andre Mar shouted,
Dont, help me! (Huwag, tulungan ninyo
ako!) That he and Ariel Caranto ran
towards the back portion of the house
and [they] saw accused Benjamin
Masangkay who was lying down in a
canal with his face up and stabbing the
latter with a long bladed weapon. That
Ariel Caranto ran and fetched
Benjamin Ortega, Sr., the father of
accused Benjamin, Jr. That he
[Quitlong] went to Romeo Ortega in the
place where they were having the
drinking session [for the latter] to pacify
his brother Benjamin, Jr. That Romeo
Ortega went to the place of the
stabbing and together with Benjamin
Ortega, Jr. and Manuel Garcia lifted
Andre Mar Masangkay from the canal
and brought Andre Mar to the well and
dropped the latter inside the well. That
Romeo Ortega, Benjamin Ortega, Jr.
and Manuel Garcia then dropped
stones measuring 11 to 12 inches high,
2 feet in length and 11 to 12 inches in
weight to the body of Andre Mar
Masangkay inside the well. That
Romeo Ortega warned him [Quitlong]
not to tell anybody of what he saw.
That he answered in the affirmative
and he was allowed to go home. That
his house is about 200 meters from
Romeo Ortegas house. That upon
reaching home, his conscience
bothered him and he told his mother
what he witnessed. That he went to the
residence of Col. Leonardo Orig and
reported the matter. That Col. Orig
accompanied him to the Valenzuela
Police Station and some police officers
went with them to the crime scene.
That accused Benjamin Ortega, Jr. and
Manuel Garcia were apprehended and
were brought to the police station.
On cross-examination, he said that he
did not talk to the lawyer before he was
presented as witness in this case. That
he narrated the incident to his mother
on the night he witnessed the killing on
October 15, 1992. That on October 15,
1992 at 5:30 in the afternoon when he
arrived, victim Andre Mar Masangkay,
Romeo Ortega, Serafin and one Boyet
were already having [a] drinking spree
and he joined them. That accused
Benjamin Ortega, Jr. and Manuel
Garcia were not yet in the place. That
the stabbing happened between 12:00
midnight and 12:30 a.m. That they
drank gin with finger foods such as
pork and shell fish. That he met the
victim Andre Mar Masangkay only on
that occasion. That accused Benjamin
Ortega, Jr. and Manuel Garcia joined
them at about 11:00 p.m. That there
was no altercation between Benjamin
Ortega, Jr. and Manuel Garcia in one
hand and Andre Mar Masangkay,
during the drinking session. That at
about 12:30 a.m. Andre Mar
Masangkay answered the call of nature
and went to the back portion of the
house. That he cannot see Andre Mar
Masangkay from the place they were
having the drinking session. That he
did not see what happened to Andre
Mar Masangkay. That he only heard
Masangkay asking for help. That
accused Manuel Garcia was still in the
drinking session when he heard
Masangkay was asking for help. That
Benjamin Ortega, Jr. and Manuel
Garcia are his friends and neighbors.
That when he heard Andre Mar
Masangkay was asking for help, he
and Ariel Caranto ran to the back
portion of the house and saw Benjamin
Ortega, Jr. on top of Andre Mar
Masangkay and stabbing the latter.
That Andre Mar Masangkay was lying
down with his back in the canal and
Benjamin Ortega, Jr. on top stabbing
the former. That he did not see any
injuries on Benjamin Ortega, Jr. That
he called Romeo Ortega to pacify his
brother Benjamin, Jr. That he did not
do anything to separate Benjamin
Ortega, Jr. and Masangkay. That he
knows that Andre Mar Masangkay was
courting Raquel Ortega. That Raquel
Ortega asked permission from Andre
Mar Masangkay when she left between
8:00 and 9:00 p.m. That there was no
trouble that occurred during the
drinking session.
PNP Superintendent Leonardo Orig
substantially testified that Diosdado
Quitlong is his neighbor for about 9
years. That on October 16, 1992 at
5:00 in the morning, he was
summoned by Diosdado Quitlong and
reported to him the stabbing incident
that occurred at Daangbakal near the
subdivision he is living. That he relayed
the information to the Valenzuela
Police Station and a police team under
police officer Param accompanied
them to the place. That he asked the
police officers to verify if there is a
body of person inside the well. That the
well was covered with stones and he
asked the police officers to seek the
help of theneighbors (sic) to remove
the stones inside the well. That after
the stones were removed, the body of
the victim was found inside the well.
That the lifeless body was pulled out
from the well. That the body has
several stab wounds. That he came to
know the victim as Andre Mar
Masangkay. That two men were
arrested by the police officers.
On cross-examination, he said that he
saw the body when taken out of the
well with several stab wounds. That
Diosdado Quitlong told him that he was
drinking with the victim and the
assailants at the time of the incident.
That Benjamin Ortega, Jr. stabbed the
victim while the latter was answering
the call of nature.
NBI Medico Legal Officer Dr. Ludivico
J. Lagat substantially testified that he
conducted [an] autopsy on the cadaver
of Andre Mar Masangkay on October
16, 1992 at the Valenzuela Memorial
Homes located at Macarthur Highway.
That he prepared the autopsy report
and the sketch of human head and
body indicating the location of the stab
wounds. That the cause of death is
multiple stab wounds, contributory,
[a]sphyxia by submersion in water.
That there were 13 stab wounds, 8 of
which were on the frontal part of the
body, 2 at the back and there were
contused abrasions around the neck
and on the left arm. There was stab
wound at the left side of the neck. That
the contused abrasion could be
produced by cord or wire or rope. That
there is (an) incised wound on the left
forearm. That the stab wounds which
were backward downward of the body
involved the lungs. That the victim was
in front of the assailant. That the stab
wound on the upper left shoulder was
caused when the assailant was in front
of the victim. That the assailant was in
front of the victim when the stab wound
near the upper left armpit was inflicted
as well as the stab wound on the left
chest wall. That the stab wound on the
back left side of the body and the stab
wound on the back right portion of the
body may be produced when the
assailant was at the back of the victim.
That the assailant was in front of the
victim when the stab wound[s] on the
left elbow and left arm were inflicted.
That the large airway is filled with
muddy particles indicating that the
victim was alive when the victim
inhaled the muddy particles. The heart
is filled with multiple hemorrhage, loss
of blood or decreased of blood. The
lungs is filled with water or muddy
particles. The brain is pale due to loss
of blood. The stomach is one half filled
with muddy particles which could [have
been] taken in when submerged in
water.
On cross-examination, he said that he
found 13 stab wounds on the body of
the victim. That he cannot tell if the
assailant or the victim were standing.
That it is possible that the stab wounds
was (sic) inflicted when both [referring
to participants] were standing or the
victim was lying down and the
assailant was on top. That he cannot
tell the number of the assailants.
Evidence for the Appellants
Appellant Manuel Garcia testified that in the
early morning of October 15, 1992, he and his
wife, Maritess Garcia, brought their feverish
daughter, Marjorie, to the Polo Emergency
Hospital. He left the hospital at seven o clock in
the morning, went home, changed his clothes
and went to work.[10] After office hours, he and
Benjamin Ortega, Jr. passed by the canteen at
their place of work. After drinking beer, they left
at eight o clock in the evening and headed
home. En route, they chanced on Diosdado
Quitlong alias Mac-mac and Andre Mar
Masangkay, who invited them to join their own
drinking spree. Thereupon, Appellant Garcias
wife came and asked him to go home because
their daughter was still sick. To alleviate his
daughters illness, he fetched his mother-in-law
who performed a ritual called tawas. After the
ritual, he remained at home and attended to his
sick daughter. He then fell asleep but was
awakened by police officers at six o clock in the
morning of the following day.
Maritess Garcia substantially corroborated the
testimony of her husband. She however added
two other participants in the drinking session
aside from Diosdado Quitlong alias Mac-mac
and Andre Mar Masangkay, namely, a Mang
Serafin and Boyet Santos.[11]
Benjamin Ortega, Jr. likewise substantially
corroborated the testimony of Appellant Manuel
Garcia.[12] According to him, between eleven and
twelve o clock in the evening, Masangkay left
the drinking session. Thirty (30) minutes after
Masangkay left, he also left the drinking place to
urinate.[13] He went behind the house where he
saw Masangkay peeping through the room of his
sister Raquel. He ignored Masangkay and
continued urinating.[14] After he was through,
Masangkay approached him and asked where
his sister was.He answered that he did not
know. Without warning, Masangkay allegedly
boxed him in the mouth, an attack that induced
bleeding and caused him to fall on his back.
When he was about to stand up, Masangkay
drew a knife and stabbed him, hitting him on the
left arm, thereby immobilizing him. Masangkay
then gripped his neck with his left arm and
threatened to kill him. Unable to move, Ortega
shouted for help. Quitlong came and, to avoid
being stabbed, grabbed Masangkays right hand
which was holding the knife. Quitlong was able
to wrest the knife from Masangkay and, with it,
he stabbed Masangkay ten (10) times
successively, in the left chest and in the middle
of the stomach. When the stabbing started,
Ortega moved to the left side of Masangkay to
avoid being hit.[15] Quitlong chased Masangkay
who ran towards the direction of the well.
Thereafter, Ortega went home and treated his
injured left armpit and lips. Then, he slept.
When he woke up at six o clock the following
morning, he saw police officers in front of his
house. Taking him with them, the lawmen
proceeded to the well. From the railroad tracks
where he was asked to sit, he saw the police
officers lift the body of a dead person from the
well. He came to know the identity of the dead
person only after the body was taken to the
police headquarters.[16]
The Trial Courts Discussion
The trial court explained its basis for appellants
conviction as follows:[17]
The Court is convinced that the
concerted acts of accused Benjamin
Ortega, Jr., Manuel Garcia, Jr. and one
Romeo Ortega in lifting, carrying and
dumping the victim Andre Mar
Masangkay who was still alive and
breathing inside the deep well filled
with water, head first and threw big
stones/rocks inside the well to cover
the victim is a clear indication of the
community of design to finish/kill victim
Andre Mar Masangkay. Wounded and
unarmed victim Andre Mar Masangkay
was in no position to flee and/or
defend himself against the three
malefactors. Conspiracy and the taking
advantage of superior strength were in
attendance. The crime committed by
the accused is Murder.
Concert of action at the moment of
consummating the crime and the form
and manner in which assistance is
rendered to the person inflicting the
fatal wound may determine complicity
where it would not otherwise be
evidence (People vs. Yu, 80 SCRA
382 (1977)).
Every person criminally liable for a
felony is also civilly liable. Accused
(m)ust reimburse the heirs of victim
Andre Mar Masangkay the amount of
P35,000.00 for the funeral expenses of
the deceased.
The Issues
In their ten-page brief, appellants fault the trial
court with the following: [18]
I. The trial court erred in holding that
there is conspiracy on the basis of the
prosecutions evidence that at the time
both accused and one Romeo Ortega
lifted the body of Andrew Masangkay
from where he succumbed due to
stab wounds and brought and drop
said body of Andrew Masangkay to
the well to commit murder;
II. The trial court erred in finding and
holding that Andrew Masangkay was
still alive at the time his body was
dropped in the well;
III. The trial court erred in convicting
Manuel Garcia and in not acquitting
the latter of the crime charged; and
IV. The trial court erred in not finding
that if at all Benjamin Ortega Jr. is
guilty only of homicide alone.
On the basis of the records and the arguments
raised by the appellants and the People, we
believe that the question to be resolved could be
simplified thus: What are the criminal liabilities, if
any, of Appellants Ortega and Garcia?
The Courts Ruling
We find the appeal partly meritorious. Appellant
Ortega is guilty only of homicide. Appellant
Garcia deserves acquittal.
First Issue: Liability of Appellant Ortega
The witnesses for the prosecution and defense
presented conflicting narrations. The
prosecution witnesses described the
commission of the crime and positively identified
appellants as the perpetrators. The witnesses
for the defense, on the other hand, attempted to
prove denial and alibi. As to which of the two
contending versions speaks the truth primarily
rests on a critical evaluation of the credibility of
the witnesses and their stories. In this regard,
the trial court held:[19]
The Court has listened intently to the
narration of the accused and their
witnesses and the prosecution
witnesses and has keenly observed
their behavior and demeanor on the
witness stand and is convinced that the
story of the prosecution is the more
believable version. Prosecution
eyewitness Diosdado Quitlong
appeared and sounded credible and
his credibility is reinforced by the fact
that he has no reason to testify falsely
against the accused. It was Diosdado
Quitlong who reported the stabbing
incident to the police authorities. If
Quitlong stabbed and killed the victim
Masangkay, he will keep away from
the police authorities and will go in
hiding. x x x
Because the trial court had the opportunity to
observe the witnesses demeanor and
deportment on the stand as they rendered their
testimonies, its evaluation of the credibility of
witnesses is entitled to the highest respect.
Therefore, unless the trial judge plainly
overlooked certain facts of substance and value
which, if considered, might affect the result of
the case, his assessment of credibility must be
respected.[20]
In the instant case, we have meticulously
scoured the records and found no reason to
reverse the trial courts assessment of the
credibility of the witnesses and their
testimonies[21] insofar as Appellant Ortega is
concerned. The narration of Eyewitness
Diosdado Quitlong appears to be spontaneous
and consistent. It is straightforward, detailed,
vivid and logical. Thus, it clearly deserves full
credence.
On the other hand, in asserting alibi and denial,
the defense bordered on the unbelievable.
Appellant Ortega claimed that after he was able
to free himself from Masangkays grip, he went
home, treated his injuries and slept.[22] This is
not the ordinary reaction of a person assaulted.
If Ortegas version of the assault was true, he
should have immediately reported the matter to
the police authorities, if only out of gratitude to
Quitlong who came to his rescue. Likewise, it is
difficult to believe that a man would just sleep
after someone was stabbed in his own
backyard. Further, we deem it incredible that
Diosdado Quitlong would stab Masangkay ten
(10) times successively, completely ignoring
Benjamin Ortega, Jr. who was grappling with
Masangkay. Also inconsistent with human
experience is his narration that Masangkay
persisted in choking him instead of defending
himself from the alleged successive stabbing of
Quitlong.[23] The natural tendency of a person
under attack is to defend himself and not to
persist in choking a defenseless third person.
Murder or Homicide?
Although treachery, evident premeditation and
abuse of superior strength were alleged in the
information, the trial court found the presence
only of abuse of superior strength.
We disagree with the trial courts finding. Abuse
of superior strength requires deliberate intent on
the part of the accused to take advantage of
such superiority. It must be shown that the
accused purposely used excessive force that
was manifestly out of proportion to the means
available to the victims defense.[24] In this light, it
is necessary to evaluate not only the physical
condition and weapon of the protagonists but
also the various incidents of the event.[25]
In his testimony, Witness Dominador Quitlong
mentioned nothing about Appellant Ortegas
availment of force excessively out of proportion
to the means of defense available to the victim
to defend himself. Quitlong described the
assault made by Appellant Ortega as follows:[26]
ATTY. ALTUNA:
Q Will you please tell me the place and date
wherein you have a drinking spree with Andrew
Masangkay and where you witnessed a stabbing
incident?
A It was on October 15, 1992, sir, at about 5:30
in the afternoon we were drinking in the house of
Mr. Benjamin Ortega, Sr., because the house of
Benjamin Ortega Sr. and the house of his son
Benjamin Ortega, Jr. are near each other.
xxx xxx xxx
Q Mr. Witness, who were the companions of
said persons, Benjamin Ortega, Jr., Manuel
Garcia, you (sic) in drinking in said place?
A The other companions in the drinking session
were Ariel Caranto y Ducay, Roberto San
Andres and Romeo Ortega.
Q What about this victim, Andrew Masangkay,
where was he at that time?
A Also the victim, Andrew Masangkay, he was
also there.
Q You said that the two accused, Manuel Garcia
and Benjamin Ortega, Jr. arrived drunk and
joined the group?
A Yes, sir.
Q What happened next?
A While we were there together and we were
drinking ... (interrupted by Atty. Altuna)
Q Who is that we?
A Referring to Benjamin Ortega, Jr., Manuel
Garcia, Ariel Caranto, Romeo Ortega, Roberto
San Andres, myself and Andrew Masangkay.
Andrew Masangkay answer to a call of nature
and went to the back portion of the house, and
Benjamin Ortega, Jr. followed him where he
was.
Q What happened next?
A And afterwards we heard a shout and the
shout said Huwag, tulungan nyo ako.
Q From whom did you hear this utterance?
A The shout came from Andrew Masangkay.
Q After Benjamin Ortega, Jr. followed Andrew
Masangkay to answer a call of nature and after
you heard huwag, tulungan nyo ako coming
from the mouth of the late Andrew Masangkay,
what happened next?
A Ariel Caranto and I ran towards the back
portion of the house.
Q And what did you see?
A And I saw that Benjamin Ortega, Jr. was on
top of Andrew Masangkay and he was stabbing
Andrew Masangkay.
Q Will you please demonstrate to the Honorable
Court how the stabbing was done telling us the
particular position of the late Andrew Masangkay
and how Benjamin Ortega, Jr proceeded with
the stabbing against the late victim, Andrew
Masangkay?
INTERPRETER:
(At this juncture, the witness demonstrating.)
Andrew Masangkay was lying down on a canal
with his face up, then Benjamin Ortega, Jr. was
nakakabayo and with his right hand with closed
fist holding the weapon, he was thrusting this
weapon on the body of the victim, he was
making downward and upward motion thrust.
ATTY. ALTUNA: (To the witness)
Q How many times did Benjamin Ortega, Jr.
stabbed Andrew Masangkay?
A I cannot count the number of times.
It should be noted that Victim Masangkay was a
six-footer, whereas Appellant Ortega, Jr. was
only five feet and five inches tall.[27] There was
no testimony as to how the attack was initiated.
The accused and the victim were already
grappling when Quitlong arrived. Nothing in the
foregoing testimony and circumstances can be
interpreted as abuse of superior strength.
Hence, Ortega is liable only for homicide, not
murder.
Second Issue: Liability of Appellant Manuel
Garcia
Appellants argue that the finding of conspiracy
by the trial court is based on mere assumption
and conjecture x x x.[28] Allegedly, the medico-
legal finding that the large airway was filled with
muddy particles indicating that the victim was
alive when the victim inhaled the muddy
particles did not necessarily mean that such
muddy particles entered the body of the victim
while he was still alive. The Sinumpaang
Salaysay of Quitlong stated, Nilubayan lang
nang saksak nang mapatay na si Andrew ni
Benjamin Ortega, Jr.Thus, the prosecution
evidence shows Masangkay was already dead
when he was lifted and dumped into the well.
Hence, Garcia could be held liable only as an
accessory.[29]
We do not agree with the above contention.
Article 4, par. 1, of the Revised Penal Code
states that criminal liability shall be incurred by
any person committing a felony (delito) although
the wrongful act done be different from that
which he intended. The essential requisites for
the application of this provision are that (a) the
intended act is felonious; (b) the resulting act is
likewise a felony; and (c) the unintended albeit
graver wrong was primarily caused by the actors
wrongful acts. In assisting Appellant Ortega, Jr.
carry the body of Masangkay to the well,
Appellant Garcia was committing a felony. The
offense was that of concealing the body of the
crime to prevent its discovery, i.e. that of being
an accessory in the crime of homicide.[30]
Although Appellant Garcia may have been
unaware that the victim was still alive when he
assisted Ortega in throwing the body into the
well, he is still liable for the direct and natural
consequence of his felonious act, even if the
resulting offense is worse than that intended.
True, Appellant Garcia merely assisted in
concealing the body of the victim. But the
autopsy conducted by the NBI medico-legal
officer showed that the victim at that time was
still alive, and that he died subsequently of
drowning.[31] That drowning was the immediate
cause of death was medically demonstrated by
the muddy particles found in the victims airway,
lungs and stomach.[32] This is evident from the
expert testimony given by the medico-legal
officer, quoted below:[33]
ATTY. ALTUNA:
Q Will you please explain this in simple
language the last portion of Exhibit N, beginning
with tracheo-bronchial tree, that is sentence
immediately after paragraph 10, 2.5 cms. Will
you please explain this?
A The trancheo-bronchial tree is filled with
muddy particles.
Q I ask you a question on this. Could the victim
have possibly get this particular material?
A No, sir.
Q What do you mean by no?
A A person should be alive so that the muddy
particles could be inhaled.
Q So, in short, you are telling or saying to us
that if there is no inhaling or the taking or
receiving of muddy particles at that time, the
person is still alive?
A Yes, sir.
Q Second point?
A The heart is pale with some multiple petechial
hemorrhages at the anterior surface.
Q And this may [be] due to stab wounds or
asphyxia?
A These are the effects or due to asphyxia or
decreased amount of blood going to the heart.
Q This asphyxia are you referring to is the
drowning?
A Yes, sir.
Q Next point is the lungs?
A The lungs is also filled with multiple petechial
hemorrhages.
Q What could have caused this injury of the
lungs?
A This is due to asphyxia or the loss of blood.
Q Are you saying that the lungs have been filled
with water or muddy particles?
A Yes, sir.
Q And, precisely, you are now testifying that due
to stab wounds or asphyxia, the lungs have
been damaged per your Report?
A Yes, sir.
Q Continuing this brain and other visceral
organs, pale. What is this?
A The paleness of the brain and other visceral
organs is due to loss of blood.
Q And, of course, loss of blood could be
attributed to the stab wound which is number
13?
A Yes, sir.
Q And the last one, under the particular point
hemothorax?
A It indicates at the right side. There are around
1,400 cc of blood that accumulate at the thoraxic
cavity and this was admixed with granular
materials?
Q And what cause the admixing with granular
materials on said particular portion of the body?
A Could be muddy particles.
Q Due to the taking of maddy (sic) materials as
affected by asphyxia? Am I correct?
A Its due to stab wounds those muddy particles
which set-in thru the stab wounds.
Q So, because of the opening of the stab
wounds, the muddy particles now came in, in
that particular portion of the body and caused
admixing of granular materials?
A Yes, sir.
Q Continuing with your report, particularly, the
last two portions, will you please explain the
same?
A The hemoperitoneum there are 900 cc of
blood that accumulated inside the abdomen.
Q And what could have cause the same?
A [T]he stab wound of the abdomen.
Q The last one, stomach 1/2 filled with muddy
particles. Please explain the same?
A The victim could have taken these when he
was submerged in water.
Q What is the take in?
A Muddy particles.
Q And he was still alive at that time?
A Yes, sir. (Underscoring supplied)
A Filipino authority on forensic medicine opines
that any of the following medical findings may
show that drowning is the cause of death:[34]
1. The presence of materials or
foreign bodies in the hands of the
victim. The clenching of the hands is
a manifestation of cadaveric spasm in
the effort of the victim to save himself
from drowning.
2. Increase in volume (emphysema
aquosum) and edema of the lungs
(edema aquosum).
3. Presence of water and fluid in the
stomach contents corresponding to
the medium where the body was
recovered.
4. Presence of froth, foam or foreign
bodies in the air passage found in the
medium where the victim was found.
5. Presence of water in the middle
ear.
The third and fourth findings were present in the
case of Victim Masangkay. It was proven that
his airpassage, or specifically his tracheo-
bronchial tree, was filled with muddy particles
which were residues at the bottom of the well.
Even his stomach was half-filled with such
muddy particles. The unrebutted testimony of
the medico-legal officer that all these muddy
particles were ingested when the victim was still
alive proved that the victim died of drowning
inside the well.
The drowning was the direct, natural and logical
consequence of the felony that Appellant Garcia
had intended to commit; it exemplifies praeter
intentionem covered by Article 4, par. 1, of the
Revised Penal Code. Under this paragraph, a
person may be convicted of homicide although
he had no original intent to kill.[35]
In spite of the evidence showing that Appellant
Garcia could be held liable as principal in the
crime of homicide, there are, however, two legal
obstacles barring his conviction, even as an
accessory as prayed for by appellants counsel
himself.
First. The Information accused Appellant Garcia
(and Appellant Ortega) of attack[ing],
assault[ing], and stab[bing] repeatedly with a
pointed weapon on the different parts of the
body one ANDRE MAR MASANGKAY y
ABLOLA The prosecutions evidence itself shows
that Garcia had nothing to do with the stabbing
which was solely perpetrated by Appellant
Ortega. His responsibility relates only to the
attempted concealment of the crime and the
resulting drowning of Victim Masangkay. The
hornbook doctrine in our jurisdiction is that an
accused cannot be convicted of an offense,
unless it is clearly charged in the complaint or
information. Constitutionally, he has a right to be
informed of the nature and cause of the
accusation against him. To convict him of an
offense other than that charged in the complaint
or information would be a violation of this
constitutional right.[36] Section 14, par. 2, of the
1987 Constitution explicitly guarantees the
following:
(2) In all criminal prosecutions, the
accused shall be presumed innocent
until the contrary is proved, and shall
enjoy the right to be heard by himself
and counsel, to be informed of the
nature and cause of the accusation
against him, to have a speedy,
impartial, and public trial, to meet the
witnesses face to face, and to have
compulsory process to secure the
attendance of witnesses and the
production of evidence in his behalf.
However, after arraignment, trial may
proceed notwithstanding the absence
of the accused provided that he has
been duly notified and his failure to
appear is unjustifiable. (Underscoring
supplied)
In People vs. Pailano,[37] this Court ruled that
there can be no conviction for rape on a woman
deprived of reason or otherwise unconscious
where the information charged the accused of
sexual assault by using force or intimidation,
thus:
The criminal complaint in this case
alleged the commission of the crime
through the first method although the
prosecution sought to establish at the
trial that the complainant was a mental
retardate. Its purpose in doing so is not
clear. But whatever it was, it has not
succeeded.
If the prosecution was seeking to
convict the accused-appellant on the
ground that he violated Anita while she
was deprived of reason or
unconscious, such conviction could not
have been possible under the criminal
complaint as worded. This described
the offense as having been committed
by Antonio Pailano, being then
provided with a scythe, by means of
violence and intimidation, (who) did,
then and there, wilfully, unlawfully and
feloniously have carnal knowledge of
the complainant, Anita Ibaez, 15 years
of age, against her will. No mention
was made of the second circumstance.
Conviction of the accused-appellant on
the finding that he had raped Anita
while she was unconscious or
otherwise deprived of reason -- and not
through force and intimidation, which
was the method alleged -- would have
violated his right to be informed of the
nature and cause of the accusation
against him.[Article IV, Sec. 19,
Constitution of 1973; now Article III,
Sec. 14(2)] This right is safeguarded
by the Constitution to every accused
so he can prepare an adequate
defense against the charge against
him. Convicting him of a ground not
alleged while he is concentrating his
defense against the ground alleged
would plainly be unfair and
underhanded. This right was, of
course, available to the herein
accused-appellant.
In People vs. Ramirez, [fn: 69 SCRA
144] we held that a person charged
with rape could not be found guilty of
qualified seduction, which had not
been alleged in the criminal complaint
 against him. In the case of People vs.
Montes, [fn: 122 SCRA 409] the Court
did not permit the conviction for
homicide of a person held responsible
for the suicide of the woman he was
supposed to have raped, as the crime
he was accused of -- and acquitted --
was not homicide but rape. More to the
point is Tubb v. People of the
Philippines, [fn: 101 Phil. 114] where
the accused was charged with the
misappropriation of funds held by him
in trust with the obligation to return the
same under Article 315, paragraph
1(b) of the Revised Penal Code, but
was convicted of swindling by means
of false pretenses, under paragraph
2(b) of the said Article, which was not
alleged in the information. The Court
said such conviction would violate the
Bill of Rights.
By parity of reasoning, Appellant Garcia cannot
be convicted of homicide through drowning in an
information that charges murder by means of
stabbing.
Second. Although the prosecution was able to
prove that Appellant Garcia assisted in
concealing x x x the body of the crime, x x x in
order to prevent its discovery, he can neither be
convicted as an accessory after the fact defined
under Article 19, par. 2, of the Revised Penal
Code. The records show that Appellant Garcia is
a brother-in-law of Appellant Ortega,[38] the
latters sister, Maritess, being his wife.[39] Such
relationship exempts Appellant Garcia from
criminal liability as provided by Article 20 of the
Revised Penal Code:
ART. 20. Accessories who are exempt
from criminal liability. -- The penalties
prescribed for accessories shall not be
imposed upon those who are such with
respect to their spouses, ascendants,
descendants, legitimate, natural, and
adopted brothers and sisters, or
relatives by affinity within the same
degrees with the single exception of
accessories falling within the
provisions of paragraph 1 of the next
preceding article.
On the other hand, the next preceding article
provides:
ART. 19. Accessories. Accessories are
those who, having knowledge of the
commission of the crime, and without
having participated therein, either as
principals or accomplices, take part
subsequent to its commission in any of
the following manners:
1. By profiting themselves or
assisting the offender to profit
by the effects of the crime.
2. By concealing or destroying the
body of the crime, or the effects or
instruments thereof, in order to
prevent its discovery.
3. By harboring, concealing, or
assisting in the escape of the
principal of the crime, provided the
accessory acts with abuse of his
public functions or whenever the
author of the crime is guilty of
treason, parricide, murder, or an
attempt to take the life of the Chief
Executive, or is known to be
habitually guilty of some other crime.
Appellant Garcia, being a covered relative by
affinity of the principal accused, Benjamin
Ortega, Jr., is legally entitled to the aforequoted
exempting provision of the Revised Penal Code.
This Court is thus mandated by law to acquit
him.
Penalty and Damages
The award of actual damages should be
reduced to P31,790.00 from P35,000.00. The
former amount was proven both by documentary
evidence and by the testimony of Melba Lozano,
a sister of the victim.[40] Of the expenses alleged
to have been incurred, the Court can give
credence only to those that are supported by
receipts and appear to have been genuinely
incurred in connection with the death of the
victim.[41] However, in line with current
jurisprudence,[42] Appellant Ortega shall also
indemnify the heirs of the deceased in the sum
of P50,000.00. Indemnity requires no proof other
than the fact of death and appellants
responsibility therefor.[43]
The penalty for homicide is reclusion temporal
under Article 249 of the Revised Penal Code,
which is imposable in its medium period, absent
any aggravating or mitigating circumstance, as
in the case of Appellant Ortega. Because he is
entitled to the benefits of the Indeterminate
Sentence Law, the minimum term shall be one
degree lower, that is, prision mayor.
WHEREFORE, premises considered, the joint
appeal is PARTLY GRANTED. Appellant
Benjamin Ortega, Jr. is found GUILTY of
homicide and sentenced to ten (10) years of
prision mayor medium, as minimum, to fourteen
(14) years, eight (8) months and one (1) day of
reclusion temporal medium, as maximum.
Appellant Ortega, Jr. is also ORDERED to pay
the heirs of the victim P50,000.00 as indemnity
and P31,790.00 as actual damages. Appellant
Manuel Garcia is ACQUITTED. His immediate
release from confinement is ORDERED unless
he is detained for some other valid cause.
SO ORDERED.
Narvasa C.J., (Chairman), Davide, Jr., Melo,
and Francisco, JJ., concur.
[1] Original Records, pp. 183-198; rollo, pp. 29-
44.
[2] Regional Trial Court of Valenzuela, Metro
Manila, Branch 171.
[3] Original Records, p. 1; rollo, p. 8.
[4] Atty. Ricardo Perez of the Public Attorneys
Office.
[5] Original Records, p. 25.
[6] After promulgation of judgment, John Doe was
identified as Romeo Ortega and the latest trial
courts Order in this case was for the state
prosecutor to conduct a preliminary investigation
to determine his liability. (Original Records, pp.
207-210).
[7] Original Records, p. 198; rollo, p. 44;
Decision, p. 16.
[8] Original Records, p. 205.
[9] Ibid., pp. 185-187.
[10] TSN, June 14, 1993, pp. 12-45.
[11] Ibid., pp. 11-20.
[12] TSN, August 16, 1993, pp. 7-19.
[13] Ibid., pp. 21-22.
[14] Ibid., pp. 23-25.
[15] Ibid., pp. 26-35.
[16] TSN, September 22, 1993, pp. 3-22.
[17] Original Records, pp. 197-198; rollo, pp. 43-
44; Decision, pp. 15-16.
[18] Rollo, p. 63; original text in upper case.
[19] Original Records, pp. 196-197; rollo, pp. 42-
43; Decision, pp. 14-15.
[20] People vs. De Guzman, 188 SCRA 405, 410-
411, August 7, 1990.
[21] People vs. Gabris, 258 SCRA 663, 671, July
11, 1996 citing the cases of People vs. Vallena,
244 SCRA 685, 691, June 1, 1995; People vs.
Jaca, 229 SCRA 332, January 18, 1994; People
vs. Tismo, 204 SCRA 535, 552, December 4,
1991; and People vs. Uycoque, 246 SCRA 769,
779, July 31, 1995.
[22] TSN, September 22, 1993, pp. 6-14.
[23] Ibid., pp. 4-6.
[24] People vs. Casingal, 243 SCRA 37, 46,
March 29, 1995.
[25] People vs. Escoto, 244 SCRA 87, 97-98, May
11, 1995 citing the cases of People vs. Martinez,
96 SCRA 714, March 31, 1980 and People vs.
Cabiling, 74 SCRA 285, December 17, 1976.
[26] TSN, February 12, 1993, pp. 11-15.
[27] TSN, October 27, 1993, p. 12.
[28] Rollo, p. 64.
[29] Ibid., pp. 65-66.
[30] Paragraph no. 2 of Article 19 of the Revised
Penal Code provides for accessories manners of
participation:
ARTICLE 19. Accessories. -- Accessories are
those who, having knowledge of the commission
of the crime, and without having participated
therein, either as principals or accomplices, take
part subsequent to its commission in any of the
following manners:
1. By profiting themselves or assisting the
offender to profit by the effects of the crime.
2. By concealing or destroying the body of the
crime, or the effects or instruments thereof, in
order to prevent its discovery.
3. By harboring, concealing, or assisting in the
escape of the principal of the crime, provided the
accessory acts with abuse of his public functions
or whenever the author of the crime is guilty of
treason, parricide, murder or attempt to take the
life of the Chief Executive, or is known to be
habitually guilty of some other crime.
Under this Article, it is required that: (1) the
accessory should have knowledge of the crime,
(2) he did not take part in its commission as
principal or accomplice, and (3) subsequent to
its commission, he took part in any of the three
ways enumerated above.
[31] The exact words used by the medico-legal
officer were: The multiple stab wounds
sustained by the victim and asphyxia by
submersion in water. (TSN, April 16, 1993, p. 8).
[32] TSN, April 16, 1993, pp. 20-24.
[33] TSN, April 16, 1993, pp. 20-24.
[34] Pedro Solis, Legal Medicine, 1987, p. 448.
[35] Aquino, The Revised Penal Code, 1987
edition, Volume 1, p. 70 citing Pico vs. U.S.,
57L.Ed.812, 40 Phil. 117, 15 Phil. 549.
[36] People vs. Guevarra, 179 SCRA 740, 751,
December 4, 1989 citing the cases of Matilde,
Jr. vs. Jabson, 68 SCRA 456, 461, December
29, 1975 and U.S. vs. Ocampo, 23 Phil. 396.
[37] 169 SCRA 649, 653-654, January 31, 1989.
[38] TSN, June 14, 1993, p. 39; TSN, August 16,
1993, p. 9.
[39] TSN, October 13, 1993, p. 16.
[40] The following receipts were offered as
evidence: (1) receipt of the Diocese of Lucena
for funeral and electricity charges (350.00); (2)
receipt for transportation expense for the
transfer of remains of Andre Mar Masangkay
(3,500.00); (3) receipt of Funeral Helen for home
and coach services (5,000.00); (4) receipt of the
Diocese of San Pedro Bautista Parish for
mortuary rental (350.00); (5) receipt of the Most
Holy Redeemer Parish for use of mortuary
(2,590.00); and (6) receipt of La Funeraria Paz
for their services (20,000.00).
[41] People vs. Cayabyab, G.R. No. 123073, June
19, 1997 citing the cases of People vs. Rosario,
246 SCRA 658, 671, July 18, 1995 and People
vs. Degoma, 209 SCRA 266, 274, May 22,
1992.
[42] People vs. Quinao, et al., G.R. No. 108454,
March 13, 1997; People vs. Azugue, G.R. No.
110098, February 26, 1997; People vs. Ombrog,
G.R. No. 104666, February 12, 1997.
[43] People vs. Cayabyab, supra.
THIRD DIVISION
[G.R. No. 75369. November 26,
1990.]
PEOPLE OF THE PHILIPPINES,
Plaintiff-Appellee, v. FERNANDO
ILIGAN y JAMITO, EDMUNDO ASIS y
ILIGAN and JUAN MACANDOG (at
large), Defendants, FERNANDO
ILIGAN y JAMITO and EDMUNDO ASIS
y ILIGAN, Defendants-Appellants.
The Solicitor General for Plaintiff-
Appellee.
Cesar R. Canonizado, for Defendants-
Appellants.
SYLLABUS
1. REMEDIAL LAW; APPEAL; THROWS
THE CASE OPEN FOR A COMPLETE
REVIEW OF ALL ERRORS AS MAY BE
IMPUTABLE TO THE TRIAL COURT.
While the factual findings of the trial court
are generally given due respect by the
appellate court, an appeal of a criminal
case throws it open for a complete review
of all errors, by commission or omission,
as may be imputable to the trial court.
(People v. Valerio, Jr., L-4116, February
25, 1982, 112 SCRA 208, 231) In this
instance, the lower court erred in finding
that the maceration of one half of the
head of the victim was also caused by
Iligan for the evidence on record point to
a different conclusion. We are convinced
beyond peradventure that indeed, after
Quiones, Jr. had fallen from the bolo-
hacking perpetrated by Iligan, he was run
over by a vehicle. This finding, however,
does not in any way exonerate Iligan from
liability for the death of Quiones, Jr.
2. CRIMINAL LAW; LIABILITY;
REQUISITES THEREOF, PRESENT IN THE
CASE AT BAR. Under Article 4 of the
Revised Penal Code, criminal liability shall
be incurred "by any person committing a
felony (delito) although the wrongful act
done be different from that which he
intended." Based on the doctrine that "el
que es causa de la causa es causa del mal
causado" (he who is the cause of the
cause is the cause of the evil caused),
(People v. Ural, G.R. No. L-30801, March
27, 1974, 56 SCRA 138, 144) the
essential requisites of Article 4 are: (a)
that an intentional felony has been
committed, and (b) that the wrong done
to the aggrieved party be the direct,
natural and logical consequence of the
felony committed by the offender. (People
v. Mananquil, L-35574, September 28,
1984, 132 SCRA 196, 207). We hold that
these requisites are present in this case.
3. ID.; ID.; PROXIMATE LEGAL
CAUSE, DEFINED. The intentional
felony committed was the hacking of the
head of Quiones, Jr. by Iligan. That it
was considered as superficial by the
physician who autopsied Quiones is
beside the point. What is material is that
by the instrument used in hacking
Quiones, Jr. and the location of the
wound, the assault was meant not only to
immobilize the victim but to do away with
him as it was directed at a vital and
delicate part of the body: the head. (See:
People v. Diana, 32 Phil. 344 [1915]). The
hacking incident happened on the national
highway where vehicles are expected to
pass any moment. One such vehicle
passed seconds later when Lukban and
Zaldy Asis, running scared and having
barely negotiated the distance of around
200 meters, heard shouts of people.
Quiones, Jr., weakened by the hacking
blow which sent him to the cemented
highway, was run over by a vehicle. Under
these circumstances, we hold that while
Iligans hacking of Quiones, Jr.s head attack, however, does not by itself show
might not have been the direct cause, it
was the proximate cause of the latters
death. Proximate legal cause is defined as
"that acting first and producing the injury,
either immediately or by setting other
events in motion, all constituting a natural
and continuous chain of events, each
having a close causal connection with its
immediate predecessor, the final event in
the chain immediately effecting the injury
as a natural and probable result of the
cause which first acted, under such
circumstances that the person responsible
for the first event should, as an ordinarily
prudent and intelligent person, have
reasonable ground to expect at the
moment of his act or default that an injury
to some person might probably result
therefrom. (Urbano v. Intermediate
Appellate Court, G.R. No. 72964, January
7, 1988, 157 SCRA 1 quoting Vda. De
Bataclan v. Medina, 102 Phil. 181). In
other words, the sequence of events from
Iligans assault on him to the time
Quiones, Jr. was run over by a vehicle is,
considering the very short span of time
between them, one unbroken chain of
events. Having triggered such events,
Iligan cannot escape liability.
4. ID.; ALIBI; NOT CONSIDERED
WHEN ACCUSED IS POSITIVELY
IDENTIFIED BY WITNESSES. We agree
with the lower court that the defense of
alibi cannot turn the tide in favor of Iligan
because he was positively seen at the
scene of the crime and identified by the
prosecution witnesses. (People v. Pineda,
G.R. No. 72400, January 15, 1988, 157
SCRA 71).
5. ID.; AGGRAVATING
CIRCUMSTANCES; TREACHERY AND
EVIDENT PREMEDITATION, WRONGLY
APPRECIATED IN THE CASE AT BAR.
But we disagree with the lower court with
regards to its findings on the aggravating
circumstances of treachery and evident
premeditation. Treachery has been
appreciated by the lower court in view of
the suddenness of the attack on the group
of Quiones, Jr. Suddenness of such
treachery. (People v. Gadiano, L-31818,
July 30, 1982, 115 SCRA 559) There must
be evidence that the mode of attack was
consciously adopted by the appellant to
make it impossible or hard for the person
attacked to defend himself. (People v.
Crisostomo, L-32243, April 15, 1988, 160
SCRA 47). In this case, the hacking of
Edmundo Asis by Iligan followed by the
chasing of the trio by the group of Iligan
was a warning to the deceased and his
companions of the hostile attitude of the
appellants. The group of Quiones, Jr. was
therefore placed on guard for any
subsequent attacks against them. (People
v. Mercado, L-33492, March 30, 1988,
159 SCRA 455). The requisites necessary
to appreciate evident premeditation have
likewise not been met in this case. Thus,
the prosecution failed to prove all of the
following: (a) the time when the accused
determined to commit the crime; (b) an
act manifestly indicating that the accused
had clung to their determination to
commit the crime; and (c) the lapse of
sufficient length of time between the
determination and execution to allow him
to reflect upon the consequences of his
act. (People v. Batas, G.R. Nos. 84277-78,
August 2, 1989, 176 SCRA 46).

6. ID.; CONSPIRACY; NOT
SUFFICIENTLY CONSTITUTED BY MERE
KNOWLEDGE, ACQUIESCENCE OR
APPROVAL OF THE ACT WITHOUT
COOPERATION OR AGREEMENT TO
COOPERATE NOR BY MERE PRESENCE AT
THE SCENE OF THE CRIME. Absent any
qualifying circumstances, Iligan must be
held liable only for homicide. Again,
contrary to the lower courts finding, proof
beyond reasonable doubt has not been
established to hold Edmundo Asis liable as
Iligans co-conspirator. Edmundo Asis did
not take any active part in the infliction of
the wound on the head of Quiones, Jr.,
which led to his running over by a vehicle
and consequent death. As earlier pointed
out, the testimony that he was carrying a
stone at the scene of the crime hardly
merits credibility being uncorroborated
and coming from an undeniably biased
witness. Having been the companion of
Iligan, Edmundo Asis must have known of
the formers criminal intent but mere
knowledge, acquiescense or approval of
the act without cooperation or agreement
to cooperate, is not enough to constitute
one a party to a conspiracy. There must
be intentional participation in the act with
a view to the furtherance of the common
design and purpose. (People v. Izon, 104
Phil. 690 [1958]) Such being the case, his
mere presence at the scene of the crime
did not make him a co-conspirator, a co-
principal or an accomplice to the assault
perpetrated by Iligan. (Orobio v. Court of
Appeals, G.R. No. 57519, September 13,
1988, 165 SCRA 316) Edmundo Asis
therefore deserves exoneration.
7. ID.; HOMICIDE; PENALTY; ABSENT
ANY MITIGATING CIRCUMSTANCE AND
APPLYING THE INDETERMINATE
SENTENCE LAW. There being no
mitigating circumstance, the penalty
imposable on Iligan is reclusion temporal
medium (Arts. 249 and 64, Revised Penal
Code). Applying the Indeterminate
Sentence Law, the proper penalty is that
within the range of prision mayor as
minimum and reclusion temporal medium
as maximum. We find insufficient proof to
warrant the award of P256,960 for the
victims unrealized income and therefore,
the same is disallowed.
DECISION
FERNAN, J.:
In this appeal, uncle and nephew,
Fernando Iligan and Edmundo Asis, seek a
reversal of the decision of the then Court
of First Instance of Camarines Norte,
Branch II 1 convicting them of the crime
of murder and sentencing them to suffer
the penalty of reclusion perpetua and to
indemnify the heirs of Esmeraldo
Quiones, Jr. in the amounts of P30,000
for the latters death and P256,960
representing the victims unrealized
income.
On October 21, 1980, the following
information for murder was filed against
Fernando Iligan, Edmundo Asis and Juan
Macandog:chanrobles.com.ph : virtual law
library
"That on or about 3:00 a.m., August 4,
1980, at sitio Lico II, barangay Sto.
Domingo, municipality of Vinzons,
province of Camarines Norte, Philippines,
and within the jurisdiction of the
Honorable Court, the above named
accused, conspiring and mutually helping
one another, with treachery and evident
premeditation, one of the accused
Fernando Iligan armed with a bolo
(sinampalok) and with deliberate intent to
kill, did then and there wilfully, unlawfully
and feloniously, gang up and in a sudden
unexpected manner, hacked Esmeraldo
Quiones, Jr., on his face, thus causing
fatal injuries on the latters face which
resulted to (sic) the death of said
Esmeraldo Quiones.
"CONTRARY TO LAW."cralaw virtua1aw
library
Juan Macandog was never apprehended
and he remains at large. At their
arraignment on January 12, 1981
Fernando Iligan and Edmundo Asis
pleaded not guilty to the crime charged.
Thereafter, the prosecution presented the
following version of the commission of the
crime.chanrobles.com.ph : virtual law
library
At around 2:00 oclock in the morning of
August 4, 1980, Esmeraldo Quiones, Jr.
and his companions, Zaldy Asis and Felix
Lukban, were walking home from
barangay Sto. Domingo, Vinzons,
Camarines Norte after attending a barrio
fiesta dance. In front of the ricemill of a
certain Almadrones, they met the accused
Fernando Iligan, his nephew, Edmundo
Asis, and Juan Macandog. Edmundo Asis
pushed ("winahi") them aside thereby
prompting Zaldy Asis to box him. 2 Felix
Lukban quickly told the group of the
accused that they had no desire to fight. 3
Fernando Iligan, upon seeing his nephew
fall, drew from his back a bolo and hacked
Zaldy Asis but missed. Terrified, the trio
ran pursued by the three accused. They
ran for about half an hour, passing by the
house of Quiones, Jr. They stopped
running only upon seeing that they were
no longer being chased. After resting for a
short while, Quiones, Jr. invited the two
to accompany him to his house so that he
could change to his working clothes and
report for work as a bus conductor. 4
While the trio were walking towards the
house of Quiones, Jr., the three accused
suddenly emerged on the roadside and
without a word, Fernando Iligan hacked
Quiones, Jr. with his bolo hitting him on
the forehead and causing him to fall
down. 5 Horrified, Felix Lukban and Zaldy
Asis fled to a distance of 200 meters, but
returned walking after they heard shouts
of people. Zaldy Asis specifically heard
someone shout "May nadale na." 6
On the spot where Quiones, Jr. was
hacked, Zaldy Asis and Felix Lukban saw
him already dead with his head busted. 7
They helped the brother of Quiones, Jr.
in carrying him to their house. 8
That same day, August 4, 1980, the body
of Quiones, Jr. was autopsied at the
Funeraria Belmonte in Labo, Camarines
Norte by the municipal health officer, Dr.
Marcelito E. Abas. The postmortem
examination report which is found at the
back of the death certificate reveals that
Esmeraldo Quiones, Jr., who was 21
years old when he died, sustained the
following injuries:jgc:chanrobles.com.ph
"1. Shock and massive cerebral
hemorrhages due to multiple fracture of
the entire half of the frontal left, temporal,
parietal and occipital bone of the head,
with massive maceration of the brain
tissue.
"2. Other findings Incised wound at
the right eyebrow, medial aspect
measuring about 4 cms. in length, 0.5 cm.
in width and 0.5 cm. in depth, abrasion on
the left shoulder and right side of the
neck." 9
The death certificate also indicates that
Quiones, Jr. died of "shock and massive
cerebral hemorrhages due to a vehicular
accident."cralaw virtua1aw library
The defendants denied having perpetrated
the crime. They alleged that they were in
their respective houses at the time the
crime was committed.chanrobles law
library
Accused Fernando Iligan testified that at
around midnight of August 4, 1980, he
left his house to fetch his visitors at the
dance hall. 10 Along the way, he met his
nephew, Edmundo Asis, whom he
presumed was drunk. He invited his
nephew to accompany him to the dance
hall. However, they were not able to reach
their destination because Edmundo was
boxed by somebody whom he (Edmundo)
sideswiped. 11 Instead, Fernando Iligan
brought his nephew home. 12 On their
way, they were overtaken by Juliano
Mendoza whom Fernando Iligan invited to
his house to help him cook. 13 After
bringing his nephew home, Fernando
Iligan and Juliano Mendoza proceeded to
Iligans house and arrived there between
1:30 and 2:00 oclock in the morning of
the same day. 14
Edmundo Asis corroborated Iligans
testimony. He testified that while they
were walking in front of the Almadrones
ricemill, he sideswiped someone whom he
did not recognize because there were
several persons around. He said, "Sorry,
pare" but the person to whom he
addressed his apology boxed him on his
left face. He fell down and Iligan helped
him. Later, Iligan accompanied him to his
home in Lico II. 15 After Iligan and Juliano
Mendoza had left his house, he slept and
woke up at 7:00 oclock the following
morning. 16
The defense made capital of the testimony
of prosecution witness Dr. Abas to the
effect that Quiones, Jr. died because of a
vehicular accident. In ruling out said
theory, however, the lower court, in its
decision of May 7, 1986,
said:jgc:chanrobles.com.ph
"The accused, to augment their alibi, have
pointed to this Court that the Certificate of
Death have shown that the victims death
was caused by a vehicular accident. To
this, notwithstanding, the Court cannot
give credit for some reasons. First, the
fact of the alleged vehicular accident has
not been fully established. Second,
Esmeraldo Quiones, Sr., (the) father of
the victim, testified that Dr. Abas told him
that if his son was hacked by a bolo on
the face and then run over the entire head
by a vehicles tire, then that hacking on
the face could not be visibly seen on the
head (t.s.n., pp. 16-17, October 13, 1981)
Third, Exhibit 2 (the photograph of the
victim taken immediately after his body
had been brought home) is a hard
evidence. It will attestly (sic) show that
the entire head was not crushed by any
vehicle. On the contrary, it shows that
only half of the face and head, was
damaged with the wound starting on a
sharp edge horizontally. There are
contusions and abrasions on the upper left
shoulder and on the neck while the body
downwards has none of it, while on the
right forehead there is another wound
caused by a sharp instrument. Therefore,
it is simple, that if the victim was run over
by a vehicle, the other half portion of his
head and downward part of his body must
have been likewise seriously damaged,
which there are none." 17
The lower court also found that Iligans
group conspired to kill anyone or all
members of the group of the victim to
vindicate the boxing on the face of
Edmundo Asis. It appreciated the
aggravating circumstances of evident
premeditation and treachery and
accordingly convicted Iligan and Edmundo
Asis of the crime of murder and imposed
on them the aforementioned penalty.
Iligan and Edmundo Asis interposed this
appeal professing innocence of the crime
for which they were convicted. For the
second time, they attributed Quiones,
Jr.s death to a vehicular accident.
No eyewitnesses were presented to prove
that Quiones, Jr. was run over by a
vehicle. The defense relies on the
testimony of Dr. Abas, a prosecution
witness, who swore that the multiple
fracture on the head of Quiones, Jr. was
caused by a vehicular accident 18 which
opinion was earlier put in writing by the
same witness in the postmortem
examination. Dr. Abas justified his
conclusion by what he considered as tire
marks on the victims left shoulder and
the right side of his neck. 19 He also
testified that the incised wound located at
the victims right eyebrow could have
been caused by a sharp bolo but it was so
superficial that it could not have caused
the victims death. 20
Circumstantial evidence on record indeed
point to the veracity of the actual
occurrence of the vehicular mishap. One
such evidence is the testimony of
prosecution witness Zaldy Asis that when
he helped bring home the body of
Quiones, Jr., he told the victims father,
Esmeraldo Quiones, Sr. that "before
Esmeraldo Quiones (Jr.) was run over by
a vehicle, he was hacked by Fernando
Iligan." 21 When asked why he mentioned
an automobile, Zaldy Asis said that he did
not notice any vehicle around but he
mentioned it "because his (Quiones, Jr.)
head was busted." 22 It is therefore not
farfetched to conclude that Zaldy Asis had
actual knowledge of said accident but for
understandable reasons he declined to
declare it in court. Defense witness
Marciano Mago, the barangay captain of
Sto. Domingo, also testified that when he
went to the scene of the crime, he saw
bits of the brain of the victim scattered
across the road where he also saw tire
marks. 23
For its part, the prosecution, through the
victims father, presented evidence to the
effect that Iligan authored the maceration
of half of the victims head. Quiones, Sr.
testified that from their house, which was
about five meters away from the road, he
saw Fernando Iligan holding a superficial by the physician who autopsied
"sinampalok" as he, together with
Edmundo Asis and Juan Macandog, chased
someone. During the second time that he
saw the three accused, he heard Iligan
say, "Dali, ayos na yan." 24 Hence, the
lower court concluded that the victims
head was "chopped" resulting in the
splattering of his brain all over the place.
25 It should be emphasized, however,
that the testimony came from a biased
witness and it was uncorroborated.
While the factual findings of the trial court
are generally given due respect by the
appellate court, an appeal of a criminal
case throws it open for a complete review
of all errors, by commission or omission,
as may be imputable to the trial court. 26
In this instance, the lower court erred in
finding that the maceration of one half of
the head of the victim was also caused by
Iligan for the evidence on record point to
a different conclusion. We are convinced
beyond peradventure that indeed, after
Quiones, Jr. had fallen from the bolo-
hacking perpetrated by Iligan, he was run
over by a vehicle. This finding, however,
does not in any way exonerate Iligan from
liability for the death of Quiones,
Jr.chanrobles.com : virtual law library
Under Article 4 of the Revised Penal Code,
criminal liability shall be incurred "by any
person committing a felony (delito)
although the wrongful act done be
different from that which he intended."
Based on the doctrine that "el que es
causa de la causa es causa del mal
causado" (he who is the cause of the
cause is the cause of the evil caused), 27
the essential requisites of Article 4 are:
(a) that an intentional felony has been
committed, and (b) that the wrong done
to the aggrieved party be the direct,
natural and logical consequence of the
felony committed by the offender. 28 We
hold that these requisites are present in
this case.
The intentional felony committed was the
hacking of the head of Quiones, Jr. by
Iligan. That it was considered as
Quiones is beside the point. What is
material is that by the instrument used in
hacking Quiones, Jr. and the location of
the wound, the assault was meant not
only to immobilize the victim but to do
away with him as it was directed at a vital
and delicate part of the body: the head.
29
The hacking incident happened on the
national highway 30 where vehicles are
expected to pass any moment. One such
vehicle passed seconds later when Lukban
and Zaldy Asis, running scared and having
barely negotiated the distance of around
200 meters, heard shouts of people.
Quiones, Jr., weakened by the hacking
blow which sent him to the cemented
highway, was run over by a vehicle.
Under these circumstances, we hold that
while Iligans hacking of Quiones, Jr.s
head might not have been the direct
cause, it was the proximate cause of the
latters death. Proximate legal cause is
defined as "that acting first and producing
the injury, either immediately or by
setting other events in motion, all
constituting a natural and continuous
chain of events, each having a close
causal connection with its immediate
predecessor, the final event in the chain
immediately effecting the injury as a
natural and probable result of the cause
which first acted, under such
circumstances that the person responsible
for the first event should, as an ordinarily
prudent and intelligent person, have
reasonable ground to expect at the
moment of his act or default that an injury
to some person might probably result
therefrom." 31 In other words, the
sequence of events from Iligans assault
on him to the time Quiones, Jr. was run
over by a vehicle is, considering the very
short span of time between them, one
unbroken chain of events. Having
triggered such events, Iligan cannot
escape liability.chanrobles law library
We agree with the lower court that the
defense of alibi cannot turn the tide in
favor of Iligan because he was positively
seen at the scene of the crime and
identified by the prosecution witnesses. 32
But we disagree with the lower court with
regards to its findings on the aggravating
circumstances of treachery and evident
premeditation. Treachery has been
appreciated by the lower court in view of
the suddenness of the attack on the group
of Quiones, Jr. Suddenness of such
attack, however, does not by itself show
treachery. 33 There must be evidence that
the mode of attack was consciously
adopted by the appellant to make it
impossible or hard for the person attacked
to defend himself. 34 In this case, the
hacking of Edmundo Asis by Iligan
followed by the chasing of the trio by the
group of Iligan was a warning to the
deceased and his companions of the
hostile attitude of the appellants. The
group of Quiones, Jr. was therefore
placed on guard for any subsequent
attacks against them. 35
The requisites necessary to appreciate
evident premeditation have likewise not
been met in this case. Thus, the
prosecution failed to prove all of the
following: (a) the time when the accused
determined to commit the crime; (b) an
act manifestly indicating that the accused
had clung to their determination to
commit the crime; and (c) the lapse of
sufficient length of time between the
determination and execution to allow him
to reflect upon the consequences of his
act. 36
Absent any qualifying circumstances,
Iligan must be held liable only for
homicide. Again, contrary to the lower
courts finding, proof beyond reasonable
doubt has not been established to hold
Edmundo Asis liable as Iligans co-
conspirator. Edmundo Asis did not take
any active part in the infliction of the
wound on the head of Quiones, Jr., which
led to his running over by a vehicle and
consequent death. As earlier pointed out,
the testimony that he was carrying a
stone at the scene of the crime hardly
merits credibility being uncorroborated
and coming from an undeniably biased
witness. Having been the companion of
Iligan, Edmundo Asis must have known of
the formers criminal intent but mere
knowledge, acquiescense or approval of
the act without cooperation or agreement
to cooperate, is not enough to constitute
one a party to a conspiracy. There must
be intentional participation in the act with
a view to the furtherance of the common
design and purpose. 37 Such being the
case, his mere presence at the scene of
the crime did not make him a co-
conspirator, a co-principal or an
accomplice to the assault perpetrated by
Iligan. 38 Edmundo Asis therefore
deserves exoneration.
There being no mitigating circumstance,
the penalty imposable on Iligan is
reclusion temporal medium (Arts. 249 and
64, Revised Penal Code). Applying the
Indeterminate Sentence Law, the proper
penalty is that within the range of prision
mayor as minimum and reclusion
temporal medium as maximum. We find
insufficient proof to warrant the award of
P256,960 for the victims unrealized
income and therefore, the same is
disallowed.cralawnad
WHEREFORE, appellant Fernando Iligan y
Jamito is hereby convicted of the crime of
homicide for which he is imposed the
indeterminate penalty of six (6) years and
one (1) day of prision mayor as minimum
to fourteen (14) years, eight (8) months
and one (1) day of reclusion temporal
medium as maximum and he shall
indemnify the heirs of Esmeraldo
Quiones, Jr. in the amount of fifty
thousand pesos (P50,000). Appellant
Edmundo Asis is hereby acquitted of the
crime charged against him. Costs against
appellant Iligan.
SO ORDERED.
Gutierrez, Jr and Bidin, JJ., concur.
Feliciano, J., is on leave.
SECOND DIVISION
G.R. No. 103119 October 21, 1992
SULPICIO INTOD, petitioner,
vs.
HONORABLE COURT OF APPEALS and
PEOPLE OF THE PHILIPPINES, respondents.
CAMPOS, JR., J.:
Petitioner, Sulpicio Intod, filed this petition for
review of the decision of the Court of Appeals 1
affirming in toto the judgment of the Regional
Trial Court, Branch XIV, Oroquieta City, finding
him guilty of the crime of attempted murder.
From the records, we gathered the following
facts.
In the morning of February 4, 1979, Sulpicio
Intod, Jorge Pangasian, Santos Tubio and
Avelino Daligdig went to Salvador Mandaya's
house in Katugasan, Lopez Jaena, Misamis
Occidental and asked him to go with them to the
house of Bernardina Palangpangan. Thereafter,
Mandaya and Intod, Pangasian, Tubio and
Daligdig had a meeting with Aniceto Dumalagan.
He told Mandaya that he wanted Palangpangan
to be killed because of a land dispute between
them and that Mandaya should accompany the
four (4) men, otherwise, he would also be killed.
At about 10:00 o'clock in the evening of the
same day, Petitioner, Mandaya, Pangasian,
Tubio and Daligdig, all armed with firearms,
arrived at Palangpangan's house in Katugasan,
Lopez Jaena, Misamis Occidental. At the
instance of his companions, Mandaya pointed
the location of Palangpangan's bedroom.
Thereafter, Petitioner, Pangasian, Tubio and
Daligdig fired at said room. It turned out,
however, that Palangpangan was in another City
and her home was then occupied by her son-in-
law and his family. No one was in the room
when the accused fired the shots. No one was
hit by the gun fire.
Petitioner and his companions were positively
identified by witnesses. One witness testified
that before the five men left the premises, they
shouted: "We will kill you (the witness) and
especially Bernardina Palangpangan and we will
come back if (sic) you were not injured". 2
After trial, the Regional Trial Court convicted
Intod of attempted murder. The court (RTC), as
affirmed by the Court of Appeals, holding that
Petitioner was guilty of attempted murder.
Petitioner seeks from this Court a modification of
the judgment by holding him liable only for an
impossible crime, citing Article 4(2) of the
Revised Penal Code which provides:
Art. 4(2). CRIMINAL RESPONSIBILITY.
Criminal Responsibility shall be incurred:
xxx xxx xxx
2. By any person performing an act which
would be an offense against persons or
property, were it not for the inherent impossibility
of its accomplishment or on account of the
employment of inadequate or ineffectual means.
Petitioner contends that, Palangpangan's
absence from her room on the night he and his
companions riddled it with bullets made the
crime inherently impossible.
On the other hand, Respondent People of the
Philippines argues that the crime was not
impossible. Instead, the facts were sufficient to
constitute an attempt and to convict Intod for
attempted murder. Respondent alleged that
there was intent. Further, in its Comment to the
Petition, respondent pointed out that:
. . . The crime of murder was not consummated,
not because of the inherent impossibility of its
accomplishment (Art. 4(2), Revised Penal
Code), but due to a cause or accident other than
petitioner's and his accused's own spontaneous
desistance (Art. 3., Ibid.) Palangpangan did not
sleep at her house at that time. Had it not been
for this fact, the crime is possible, not
impossible. 3
Article 4, paragraph 2 is an innovation 4 of the
Revised Penal Code. This seeks to remedy the
void in the Old Penal Code where:
. . . it was necessary that the execution of the
act has been commenced, that the person
conceiving the idea should have set about doing
the deed, employing appropriate means in order
that his intent might become a reality, and
finally, that the result or end contemplated shall
have been physically possible. So long as these
conditions were not present, the law and the
courts did not hold him criminally liable. 5
This legal doctrine left social interests entirely
unprotected. 6 The Revised Penal Code,
inspired by the Positivist School, recognizes in
the offender his formidability, 7 and now
penalizes an act which were it not aimed at
something quite impossible or carried out with
means which prove inadequate, would constitute
a felony against person or against property. 8
The rationale of Article 4(2) is to punish such
criminal tendencies. 9
Under this article, the act performed by the
offender cannot produce an offense against
person or property because: (1) the commission
of the offense is inherently impossible of
accomplishment: or (2) the means employed is
either (a) inadequate or (b) ineffectual. 10
That the offense cannot be produced because
the commission of the offense is inherently
impossible of accomplishment is the focus of
this petition. To be impossible under this clause,
the act intended by the offender must be by its
nature one impossible of accomplishment. 11
There must be either impossibility of
accomplishing the intended act 12 in order to
qualify the act an impossible crime.
Legal impossibility occurs where the intended
acts, even if completed, would not amount to a
crime. 13 Thus:
Legal impossibility would apply to those
circumstances where (1) the motive, desire and
expectation is to perform an act in violation of
the law; (2) there is intention to perform the
physical act; (3) there is a performance of the
intended physical act; and (4) the consequence
resulting from the intended act does not amount
to a crime. 14
The impossibility of killing a person already dead
15 falls in this category.
On the other hand, factual impossibility occurs
when extraneous circumstances unknown to the
actor or beyond his control prevent the
consummation of the intended crime. 16 One
example is the man who puts his hand in the
coat pocket of another with the intention to steal
the latter's wallet and finds the pocket empty. 17
The case at bar belongs to this category.
Petitioner shoots the place where he thought his
victim would be, although in reality, the victim
was not present in said place and thus, the
petitioner failed to accomplish his end.
One American case had facts almost exactly the
same as this one. In People vs. Lee Kong, 18
the accused, with intent to kill, aimed and fired at
the spot where he thought the police officer
would be. It turned out, however, that the latter
was in a different place. The accused failed to
hit him and to achieve his intent. The Court
convicted the accused of an attempt to kill. It
held that:
The fact that the officer was not at the spot
where the attacking party imagined where he
was, and where the bullet pierced the roof,
renders it no less an attempt to kill. It is well
settled principle of criminal law in this country
that where the criminal result of an attempt is not
accomplished simply because of an obstruction
in the way of the thing to be operated upon, and
these facts are unknown to the aggressor at the
time, the criminal attempt is committed.
In the case of Strokes vs. State, 19 where the
accused failed to accomplish his intent to kill the
victim because the latter did not pass by the
place where he was lying-in wait, the court held
him liable for attempted murder. The court
explained that:
It was no fault of Strokes that the crime was not
committed. . . . It only became impossible by
reason of the extraneous circumstance that
Lane did not go that way; and further, that he
was arrested and prevented from committing the
murder. This rule of the law has application only
where it is inherently impossible to commit the
crime. It has no application to a case where it
becomes impossible for the crime to be
committed, either by outside interference or
because of miscalculation as to a supposed
opportunity to commit the crime which fails to
materialize; in short it has no application to the
case when the impossibility grows out of
extraneous acts not within the control of the
party.
In the case of Clark vs. State, 20 the court held
defendant liable for attempted robbery even if
there was nothing to rob. In disposing of the
case, the court quoted Mr. Justice Bishop, to wit:
It being an accepted truth that defendant
deserves punishment by reason of his criminal
intent, no one can seriously doubt that the
protection of the public requires the punishment
to be administered, equally whether in the
unseen depths of the pocket, etc., what was
supposed to exist was really present or not. The
community suffers from the mere alarm of crime.
Again: Where the thing intended (attempted) as
a crime and what is done is a sort to create
alarm, in other words, excite apprehension that
the evil; intention will be carried out, the incipient
act which the law of attempt takes cognizance of
is in reason committed.
In State vs. Mitchell, 21 defendant, with intent to
kill, fired at the window of victim's room thinking
that the latter was inside. However, at that
moment, the victim was in another part of the
house. The court convicted the accused of
attempted murder.
The aforecited cases are the same cases which
have been relied upon by Respondent to make
this Court sustain the judgment of attempted
murder against Petitioner. However, we cannot
rely upon these decisions to resolve the issue at
hand. There is a difference between the
Philippine and the American laws regarding the
concept and appreciation of impossible crimes.
In the Philippines, the Revised Penal Code, in
Article 4(2), expressly provided for impossible
crimes and made the punishable. Whereas, in
the United States, the Code of Crimes and
Criminal Procedure is silent regarding this
matter. What it provided for were attempts of the
crimes enumerated in the said Code.
Furthermore, in said jurisdiction, the impossibility
of committing the offense is merely a defense to
an attempt charge. In this regard, commentators
and the cases generally divide the impossibility
defense into two categories: legal versus factual
impossibility. 22 In U.S. vs. Wilson 23 the Court
held that:
. . . factual impossibility of the commission of the
crime is not a defense. If the crime could have
been committed had the circumstances been as
the defendant believed them to be, it is no
defense that in reality the crime was impossible
of commission.
Legal impossibility, on the other hand, is a
defense which can be invoked to avoid criminal
liability for an attempt. In U.S. vs. Berrigan, 24
the accused was indicated for attempting to
smuggle letters into and out of prison. The law
governing the matter made the act criminal if
done without knowledge and consent of the
warden. In this case, the offender intended to
send a letter without the latter's knowledge and
consent and the act was performed. However,
unknown to him, the transmittal was achieved
with the warden's knowledge and consent. The
lower court held the accused liable for attempt
but the appellate court reversed. It held
unacceptable the contention of the state that
"elimination of impossibility as a defense to a
charge of criminal attempt, as suggested by the
Model Penal Code and the proposed federal
legislation, is consistent with the overwhelming
modern view". In disposing of this contention,
the Court held that the federal statutes did not
contain such provision, and thus, following the
principle of legality, no person could be
criminally liable for an act which was not made
criminal by law. Further, it said:
Congress has not yet enacted a law that
provides that intent plus act plus conduct
constitutes the offense of attempt irrespective of
legal impossibility until such time as such
legislative changes in the law take place, this
court will not fashion a new non-statutory law of
criminal attempt.
To restate, in the United States, where the
offense sought to be committed is factually
impossible or accomplishment, the offender
cannot escape criminal liability. He can be
convicted of an attempt to commit the
substantive crime where the elements of attempt
are satisfied. It appears, therefore, that the act is
penalized, not as an impossible crime, but as an
attempt to commit a crime. On the other hand,
where the offense is legally impossible of
accomplishment, the actor cannot be held liable
for any crime neither for an attempt not for an
impossible crime. The only reason for this is that
in American law, there is no such thing as an
impossible crime. Instead, it only recognizes
impossibility as a defense to a crime charge
that is, attempt.
This is not true in the Philippines. In our
jurisdiction, impossible crimes are recognized.
The impossibility of accomplishing the criminal
intent is not merely a defense, but an act
penalized by itself. Furthermore, the phrase
"inherent impossibility" that is found in Article
4(2) of the Revised Penal Code makes no
distinction between factual or physical
impossibility and legal impossibility. Ubi lex non
distinguit nec nos distinguere debemos.
The factual situation in the case at bar present a
physical impossibility which rendered the
intended crime impossible of accomplishment.
And under Article 4, paragraph 2 of the Revised
Penal Code, such is sufficient to make the act
an impossible crime.
To uphold the contention of respondent that the
offense was Attempted Murder because the
absence of Palangpangan was a supervening
cause independent of the actor's will, will render
useless the provision in Article 4, which makes a
person criminally liable for an act "which would
be an offense against persons or property, were
it not for the inherent impossibility of its
accomplishment . . ." In that case all
circumstances which prevented the
consummation of the offense will be treated as
an accident independent of the actor's will which
is an element of attempted and frustrated
felonies.
WHEREFORE, PREMISES CONSIDERED. the
petition is hereby GRANTED, the decision of
respondent Court of Appeals holding Petitioner
guilty of Attempted Murder is hereby MODIFIED.
We hereby hold Petitioner guilty of an
impossible crime as defined and penalized in
Articles 4, paragraph 2, and 59 of the Revised
Penal Code, respectively. Having in mind the
social danger and degree of criminality shown
by Petitioner, this Court sentences him to suffer
the penalty of six (6) months of arresto mayor,
together with the accessory penalties provided
by the law, and to pay the costs.
SO ORDERED.
Feliciano, Regalado and Nocon, JJ., concur.
Narvasa, C.J., is on leave.
SECOND DIVISION
G.R. No. 138033 February 22, 2006
RENATO BALEROS, JR., Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
GARCIA, J.:
In this petition for review on certiorari, petitioner
Renato Baleros, Jr. assails and seeks the
reversal of the January 13, 1999 decision1 of the
Court of Appeals (CA) in CA-G.R. CR No. 17271
as reiterated in its March 31, 1999 resolution2
denying petitioners motion for reconsideration.
The assailed decision affirmed an earlier
decision of the Regional Trial Court (RTC) of
Manila, Branch 2, in Criminal Case No. 91-
101642 finding petitioner Renato Baleros, Jr. y
David (CHITO) guilty of attempted rape.3
The accusatory portion of the information4 dated
December 17, 1991 charging petitioner with
attempted rape reads as follow:
That about 1:50 in the morning or sometime
thereafter of 13 December 1991 in Manila and
within the jurisdiction of this Honorable Court,
the above-named accused, by forcefully
covering the face of Martina Lourdes T. Albano
with a piece of cloth soaked in chemical with
dizzying effects, did then and there willfully,
unlawfully and feloniously commenced the
commission of rape by lying on top of her with
the intention to have carnal knowledge with her
but was unable to perform all the acts of
execution by reason of some cause or accident
other than his own spontaneous desistance,
said acts being committed against her will and
consent to her damage and prejudice.
Upon arraignment on February 5, 1992,
petitioner, assisted by counsel, pleaded "Not
Guilty."5 Thereafter, trial on the merits ensued.
To prove its case, the prosecution presented
thirteen (13) witnesses. Among them were
private complainant Martina Lourdes Albano
(Malou), and her classmates, Joseph Bernard
Africa, Rommel Montes, Renato Alagadan and
Christian Alcala. Their testimonies, as narrated
in some detail in the decision of the CA,
established the following facts:
Like most of the tenants of the Celestial Marie
Building (hereafter "Building", ) along A.H.
Lacson Street, Sampaloc, Manila, MALOU,
occupying Room 307 with her maid, Marvilou
Bebania (Marvilou), was a medical student of
the University of Sto. Tomas [UST] in 1991.
In the evening of December 12, inside Unit 307,
MALOU retired at around 10:30. Outside, right in
front of her bedroom door, her maid, Marvilou,
slept on a folding bed.
Early morning of the following day, MALOU was
awakened by the smell of chemical on a piece of
cloth pressed on her face. She struggled but
could not move. Somebody was pinning her
down on the bed, holding her tightly. She
wanted to scream for help but the hands
covering her mouth with cloth wet with
chemicals were very tight (TSN, July 5, 1993, p.
33). Still, MALOU continued fighting off her
attacker by kicking him until at last her right
hand got free. With this the opportunity
presented itself when she was able to grab hold
of his sex organ which she then squeezed.
The man let her go and MALOU went straight to
the bedroom door and roused Marvilou. xxx.
Over the intercom, MALOU told S/G Ferolin that:
"may pumasok sa kuarto ko pinagtangkaan ako"
(Ibid., p. 8). Who it was she did not, however,
know. The only thing she had made out during
their struggle was the feel of her attackers
clothes and weight. His upper garment was of
cotton material while that at the lower portion felt
smooth and satin-like (Ibid, p. 17). He was
wearing a t-shirt and shorts Original Records,
p. 355).
To Room 310 of the Building where her
classmates Christian Alcala, Bernard Baptista,
Lutgardo Acosta and Rommel Montes were
staying, MALOU then proceeded to seek help.
xxx.
It was then when MALOU saw her bed topsy-
turvy. Her nightdress was stained with blue
(TSN, July 5, 1993, pp. 13-14). Aside from the
window with grills which she had originally left
opened, another window inside her bedroom
was now open. Her attacker had fled from her
room going through the left bedroom window
(Ibid, Answers to Question number 5; Id), the
one without iron grills which leads to Room 306
of the Building (TSN, July 5, 1993, p.6).
xxx xxx xxx
Further, MALOU testified that her relation with
CHITO, who was her classmate , was friendly
until a week prior to the attack. CHITO confided
his feelings for her, telling her: "Gusto kita,
mahal kita" (TSN, July 5, 1993, p. 22) and she
rejected him. . (TSN, July 5, 1993, p. 22).
Meanwhile, according to S/G Ferolin, while he
was on duty, CHITO arrived at the Building at
1:30 in the early morning of December 13, 1991,
wearing a white t-shirt with a marking on the
front of the T-shirt T M and a Greek letter (sic)
and below the quoted letters the word 1946
UST Medicine and Surgery (TSN, October 9,
1992, p. 9) and black shorts with the brand
name Adidas (TSN, October 16, 1992, p.7)
and requested permission to go up to Room
306. This Unit was being leased by Ansbert Co
and at that time when CHITO was asking
permission to enter, only Joseph Bernard Africa
was in the room.
He asked CHITO to produce the required written
authorization and when CHITO could not, S/G
Ferolin initially refused [but later, relented] .
S/G Ferolin made the following entry in the
security guards logbook :
"0130H Baleros Renato Jr. is a visitor of Ansbert
Co who has not have (sic) a Request letter from
our tenant of Unit #-306 Ansbert, but still I let
him inter (sic) for the reason that he will be our
tenant this coming summer break as he said so I
let him sign it here
(Sgd.) Baleros Renato Jr."
(Exhibit "A-2")
That CHITO arrived at Room 306 at 1:30 A.M. of
December 13, 1991 was corroborated by
Joseph Bernard Africa (Joseph), .
xxx xxx xxx
Joseph was already inside Room 306 at 9
oclock in the evening of December 12, 1991.
xxx by the time CHITOs knocking on the door
woke him up, . He was able to fix the time of
CHITOs arrival at 1:30 A.M. because he
glanced at the alarm clock beside the bed when
he was awakened by the knock at the door .
Joseph noticed that CHITO was wearing dark-
colored shorts and white T-shirt (Ibid., p. 23)
when he let the latter in. . It was at around 3
oclock in the morning of December 13, 1991
when he woke up again later to the sound of
knocking at the door, this time, by Bernard
Baptista (Bernard), .
xxx. With Bernard, Joseph then went to
MALOUs room and thereat was shown by
Bernard the open window through which the
intruder supposedly passed.
xxx xxx xxx
Later, at about 6 to 6:30 in the morning of
December 13, 1991, Joseph was finally able to
talk to CHITO . He mentioned to the latter that
something had happened and that they were not
being allowed to get out of the building. Joseph
also told CHITO to follow him to Room 310.
CHITO did just that. He followed after Joseph to
Unit 310, carrying his gray bag. xxx. None was
in Room 310 so Joseph went to their yet another
classmate, Renato Alagadan at Room 401 to
see if the others were there. xxx.
People from the CIS came by before 8 oclock
that same morning . They likewise invited
CHITO and Joseph to go with them to Camp
Crame where the two (2) were questioned .
An occupant of Room 310 Christian Alcala
(Christian) recalled in Court that in the afternoon
of December 13, 1991, after their 3:30 class, he
and his roommates, Bernard Baptista and
Lutgardo Acosta (Gary) were called to the
Building and were asked by the CIS people to
look for anything not belonging to them in their
Unit. While they were outside Room 310 talking
with the authorities, Rommel Montes (Loyloy),
another roommate of his, went inside to search
the Unit. Loyloy found (TSN, January 12, 1993,
p. 6) a gray "Khumbella" bag cloth type (Ibid, pp.
44-45) from inside their unit which they did not
know was there and surrender the same to the
investigators. When he saw the gray bag,
Christian knew right away that it belonged to
CHITO (Ibid, p. 55) as he had seen the latter
usually bringing it to school inside the classroom
(Ibid, p. 45).
In their presence, the CIS opened the bag and
pulled out its contents, among others, a white t-
shirt with a Taunu (sic) Sigma Phi sign (Ibid, p.
7), a Black Adidas short pants, a handkerchief ,
three (3) white T-shirts, an underwear, and
socks (Ibid).
Christian recognized the t-shirt (Exhibit "D-4"),
the Adidas short pants (Exhibit "D-5"), and the
handkerchief (Exhibit "D-3) to be CHITOs
because CHITO had lent the very same one to
him . The t-shirt with CHITOs fraternity
symbol, CHITO used to wear on weekends, and
the handkerchief he saw CHITO used at least
once in December.
That CHITO left his bag inside Room 310 in the
morning of December 13, 1991, was what
consisted mainly of Renato R. Alagadans
testimony.
xxx xxx xxx.
The colored gray bag had a handle and a strap,
was elongated to about 11/4 feet and appeared
to be full but was closed with a zipper when
Renato saw it then (Ibid, pp. 19-20). At that time
Christian, Gary, Bernard, and Renato went back
to Room 310 at around 3 to 4 oclock that
afternoon along with some CIS agents, they saw
the bag at the same place inside the bedroom
where Renato had seen CHITO leave it. Not
until later that night at past 9 oclock in Camp
Crame, however, did Renato know what the
contents of the bag were.
xxx xxx xxx.
The forensic Chemist, Leslie Chambers, of the
Philippine National Police Crime Laboratory in
Camp Crame, having acted in response to the
written request of PNP Superintendent Lucas M.
Managuelod dated December 13, 1991, (Exhibit
"C"; Original Records, p. 109.) conducted
laboratory examination on the specimen collated
and submitted. Her Chemistry Report No. C-
487-91 (Exhibit "E"; Ibid., p. 112) reads in part,
thus:
"SPECIMEN SUBMITTED:
xxx xxx xxx:
1) One (1) small white plastic bag marked
UNIMART with the following:
xxx xxx xxx
Exh C One (1) night dress colored salmon
pink.
2) One (1) small white pl astic bag marked
JONAS with the following:
Exh. D One (1) printed handkerchief.
Exh. E One (1) white T-shirt marked TMZI.
Exh. F One (1) black short (sic) marked
ADIDAS.
PURPOSE OF LABORATORY EXAMINATION:
To determine the presence of volatime (sic),
non-volatile and/or metallic poison on the above
stated specimens.
FINDINGS:
Toxicological examination conducted on the
above stated specimens gave the following
results:
Exhs. C and D POSITIVE to the test for
chloroform, a volatile poison.
Exhs. A, B, E and F are insufficient for
further analysis.
CONCLUSION:
Exhs. C and D contain chloroform, a volatile
poison."6 (Words in bracket added)
For its part, the defense presented, as its main
witness, the petitioner himself. He denied
committing the crime imputed to him or making
at any time amorous advances on Malou.
Unfolding a different version of the incident, the
defense sought to establish the following, as
culled from the same decision of the appellate
court:
In December of 1991, CHITO was a medical
student of (UST). With Robert Chan and
Alberto Leonardo, he was likewise a member of
the Tau Sigma Phi Fraternity . MALOU, ,
was known to him being also a medical student
at the UST at the time.
From Room 306 of the Celestial Marie Building
, CHITO, wearing the prescribed barong
tagalog over dark pants and leather shoes,
arrived at their Fraternity house located at
Dos Castillas, Sampaloc, Manila at about 7
oclock in the evening of December 12, 1991. He
was included in the entourage of some fifty (50)
fraternity members scheduled for a Christmas
gathering at the house of their senior fraternity
brother, Dr. Jose Duran, at No. 3 John Street,
North Greenhills, San Juan. xxx.
The party was conducted at the garden beside
[the] swimming pool . Soon after, the four
(4) presidential nominees of the Fraternity,
CHITO included, were being dunked one by one
into the pool. xxx.
xxx CHITO had anticipated his turn and was
thus wearing his t-shirt and long pants when he
was dunked. Perla Duran, , offered each
dry clothes to change into and CHITO put on the
white t-shirt with the Fraternitys symbol and a
pair of black shorts with stripes. xxx .
Again riding on Albertos car and wearing
"barong tagalog over a white t-shirt with the
symbol TAU Sigma Phi, black short pants with
stripe, socks and shoes" (TSN, April 25, 1994, p.
15), CHITO left the party with Robert Chan and
Alberto at more or less past 1 A.M. of December
13, 1991 and proceeded to the Building which
they reached at about 1:30 A.M. (Ibid., p. 19).
He had left his gray traveling bag containing
"white t-shirt, sando, underwear, socks, and
toothbrush (Ibid., pp. 17-18) at room 306 in the
afternoon of the previous day .
At the gate of the Building, CHITO knocked and
, S/G Ferolin, looking at his watch,
approached. Because of this, CHITO also
looked at his own watch and saw that the time
was 1:30 (Ibid., p. 26). S/G Ferolin initially
refused CHITO entry . xxx.
S/G Ferolin called Unit 306 . xxx. When S/G
Ferolin finally let him in, already about ten (10)
minutes had lapsed since CHITO first arrived
(Ibid., p. 25).
CHITO went up the floor, found the key left for
him by Joseph behind the opened jalousie
window and for five (5) minutes vainly tried to
open the door until Rommel Montes,
approached him and even commented: "Okey
ang suot mo ha, di mo mabuksan ang pinto
(Ibid., pp. 26-29). Rommel tried to open the door
of Unit 306 but was likewise unsuccessful.
CHITO then decided to just call out to Joseph
while knocking at the door.
It took another (5) minutes of calling out and
knocking before Joseph, , at last answered
the door. Telling him, "Ikaw na ang bahala
diyan" Joseph immediately turned his back on
CHITO and went inside the bedroom. CHITO ,
changed to a thinner shirt and went to bed. He
still had on the same short pants given by Perla
Duran from the fraternity party (TSN, June 16,
1994, p. 20).
At 6 oclock in the morning of December 13,
1991, CHITO woke up . He was already in his
school uniform when, around 6:30 A.M, Joseph
came to the room not yet dressed up. He asked
the latter why this was so and, without
elaborating on it, Joseph told him that something
had happened and to just go to Room 310 which
CHITO did.
At Room 310, CHITO was told by Rommel
Montes that somebody, whom MALOU was not
able to identify, went to the room of MALOU and
tried to rape her (TSN, April 25, 1994, p. 36).
xxx.
Joseph told him that the security guard was not
letting anybody out of the Building . When two
(2) CIS men came to the unit asking for Renato
Baleros, CHITO presented himself.
Congressman Rodolfo B. Albano, father of
MALOU, then asked him for the key to Room
306.
xxx xxx xxx
The CIS men looked inside the bedroom and on
the windows. Joseph was told to dress up and
the two (2) of them, CHITO and Joseph, were
brought to Camp Crame.
When they arrived at Camp Crame , Col.
Managuelod asked Joseph inside his room and
talked to him for 30 minutes. xxx. No one
interviewed CHITO to ask his side.
xxx xxx xxx
Both CHITO and Joseph were taken to
Prosecutor Abesamis who later instructed them
to undergo physical examination at the Camp
Crame Hospital .. At the hospital, CHITO
and Joseph were physically examined by a
certain Dr. de Guzman who told them to strip .
xxx xxx xxx
CHITO had left his gray bag containing, among
others, the black striped short pants lent to him
by Perla Duran (Exhibit "8-A", Original Records,
p. 345), inside Room 310 at more/less 6:30 to 7
oclock in the morning of December 13, 1991.
The next time that he saw it was between 8 to 9
P.M. when he and Joseph were brought before
Fiscal Abesamis for inquest. One of the CIS
agents had taken it there and it was not opened
up in his presence but the contents of the bag
were already laid out on the table of Fiscal
Abesamis who, however, made no effort to ask
CHITO if the items thereat were his.
The black Adidas short pants purportedly found
in the bag, CHITO denied putting in his gray bag
which he had left at Room 306 in the early
evening of December 12, 1991 before going to
the fraternity house. He likewise disavowed
placing said black Adidas short pants in his gray
bag when he returned to the apartment at past
1:00 oclock in the early morning of December
13, 1991 (TSN, June 16, 1994, p. 24), nor when
he dressed up at about 6 oclock in the morning
to go to school and brought his gray bag to
Room 310 (Ibid. 25). In fact, at any time on
December 13, 1991, he was not aware that his
gray bag ever contained any black short Adidas
pants (Ibid). He only found out for the first time
that the black Adidas short pants was alluded to
be among the items inside his gray bag late in
the afternoon, when he was in Camp Crame.
Also taking the witness stand for the defense
were petitioners fraternity brothers, Alberto
Leonardo and Robert Chan, who both testified
being with CHITO in the December 12, 1991
party held in Dr. Durans place at Greenhills,
riding on the same car going to and coming from
the party and dropping the petitioner off the
Celestial Marie building after the party. Both
were one in saying that CHITO was wearing a
barong tagalog, with t-shirt inside, with short
pants and leather shoes at the time they parted
after the party.7 Rommel Montes, a tenant of
Room 310 of the said building, also testified
seeing CHITO between the hours of 1:30 and
2:00 A.M. of December 13, 1991 trying to open
the door of Room 306 while clad in dark short
pants and white barong tagalog.
On the other hand, Perla Duran confirmed
lending the petitioner the pair of short pants with
stripes after the dunking party held in her
fathers house.8 Presented as defense expert
witness was Carmelita Vargas, a forensic
chemistry instructor whose actual demonstration
in open court showed that chloroform, being
volatile, evaporates in thirty (30) seconds
without tearing nor staining the cloth on which it
is applied.9
On December 14, 1994, the trial court rendered
its decision10 convicting petitioner of attempted
rape and accordingly sentencing him, thus:
WHEREFORE, under cool reflection and
prescinding from the foregoing, the Court finds
the accused Renato D. Baleros, Jr., alias
"Chito", guilty beyond reasonable doubt of the
crime of attempted rape as principal and as
charged in the information and hereby
sentences him to suffer an imprisonment
ranging from FOUR (4) YEARS, TWO (2)
MONTHS AND ONE (1) DAY of Prision
Correctional, as Minimum to TEN (10) YEARS of
Prision Mayor as Maximum, with all the
accessory penalties provided by law, and for the
accused to pay the offended party Martina
Lourdes T. Albano, the sum of P50,000.00 by
way of Moral and exemplary damages, plus
reasonable Attorneys fees of P30,000.00,
without subsidiary imprisonment in case of
insolvency, and to pay the costs.
SO ORDERED.
Aggrieved, petitioner went to the CA whereat his
appellate recourse was docketed as CA-G.R.
CR No. 17271.
As stated at the threshold hereof, the CA, in its
assailed Decision dated January 13, 1999,
affirmed the trial courts judgment of conviction,
to wit:
WHEREFORE, finding no basis in fact and in
law to deviate from the findings of the court a
quo, the decision appealed from is hereby
AFFIRMED in toto. Costs against appellant.
SO ORDERED.11
Petitioner moved for reconsideration, but his
motion was denied by the CA in its equally
assailed resolution of March 31, 1999.12
Petitioner is now with this Court, on the
contention that the CA erred -
1. In not finding that it is improbable for
petitioner to have committed the attempted rape
imputed to him, absent sufficient, competent and
convincing evidence to prove the offense
charged.
2. In convicting petitioner of attempted rape on
the basis merely of circumstantial evidence
since the prosecution failed to satisfy all the
requisites for conviction based thereon.
3. In not finding that the circumstances it relied
on to convict the petitioner are unreliable,
inconclusive and contradictory.
4. In not finding that proof of motive is miserably
wanting in his case.
5. In awarding damages in favor of the
complainant despite the fact that the award was
improper and unjustified absent any evidence to
prove the same.
6. In failing to appreciate in his favor the
constitutional presumption of innocence and that
moral certainty has not been met, hence, he
should be acquitted on the ground that the
offense charged against him has not been
proved beyond reasonable doubt.
Otherwise stated, the basic issue in this case
turns on the question on whether or not the CA
erred in affirming the ruling of the RTC finding
petitioner guilty beyond reasonable doubt of the
crime of attempted rape.
After a careful review of the facts and evidence
on record in the light of applicable jurisprudence,
the Court is disposed to rule for petitioners
acquittal, but not necessarily because there is
no direct evidence pointing to him as the intruder
holding a chemical-soaked cloth who pinned
Malou down on the bed in the early morning of
December 13, 1991.
Positive identification pertains essentially to
proof of identity and not per se to that of being
an eyewitness to the very act of commission of
the crime. There are two types of positive
identification. A witness may identify a suspect
or accused as the offender as an eyewitness to
the very act of the commission of the crime. This
constitutes direct evidence. There may,
however, be instances where, although a
witness may not have actually witnessed the
very act of commission of a crime, he may still
be able to positively identify a suspect or
accused as the perpetrator of a crime as when,
for instance, the latter is the person or one of the
persons last seen with the victim immediately
before and right after the commission of the
crime. This is the second type of positive
identification, which forms part of circumstantial
evidence.13 In the absence of direct evidence,
the prosecution may resort to adducing
circumstantial evidence to discharge its burden.
Crimes are usually committed in secret and
under condition where concealment is highly
probable. If direct evidence is insisted under all
circumstances, the prosecution of vicious felons
who committed heinous crimes in secret or
secluded places will be hard, if not well-nigh
impossible, to prove.14
Section 4 of Rule 133 of the Rules of Court
provides the conditions when circumstantial
evidence may be sufficient for conviction. The
provision reads:
Sec. 4. Circumstantial evidence, when sufficient
Circumstantial evidence is sufficient for
conviction if
a) There is more than one circumstance;
b) The facts from which the inferences are
derived are proven; and
c) The combination of all the circumstances is
such as to produce a conviction beyond
reasonable doubt.
In the present case, the positive identification of
the petitioner forms part of circumstantial
evidence, which, when taken together with the
other pieces of evidence constituting an
unbroken chain, leads to only fair and
reasonable conclusion, which is that petitioner
was the intruder in question.
We quote with approval the CAs finding of the
circumstantial evidence that led to the identity of
the petitioner as such intruder:
Chito was in the Building when the attack on
MALOU took place. He had access to the room
of MALOU as Room 307 where he slept the
night over had a window which allowed ingress
and egress to Room 306 where MALOU stayed.
Not only the Building security guard, S/G
Ferolin, but Joseph Bernard Africa as well
confirmed that CHITO was wearing a black
"Adidas" shorts and fraternity T-shirt when he
arrived at the Building/Unit 307 at 1:30 in the
morning of December 13, 1991. Though it was
dark during their struggle, MALOU had made out
the feel of her intruders apparel to be something
made of cotton material on top and shorts that
felt satin-smooth on the bottom.
From CHITOs bag which was found inside
Room 310 at the very spot where witness
Renato Alagadan saw CHITO leave it, were
discovered the most incriminating evidence: the
handkerchief stained with blue and wet with
some kind of chemicals; a black "Adidas" satin
short pants; and a white fraternity T-shirt, also
stained with blue. A different witness, this time,
Christian Alcala, identified these garments as
belonging to CHITO. As it turned out, laboratory
examination on these items and on the beddings
and clothes worn by MALOU during the incident
revealed that the handkerchief and MALOUs
night dress both contained chloroform, a volatile
poison which causes first degree burn exactly
like what MALOU sustained on that part of her
face where the chemical-soaked cloth had been
pressed.
This brings the Court to the issue on whether the
evidence adduced by the prosecution has
established beyond reasonable doubt the guilt of
the petitioner for the crime of attempted rape.
The Solicitor General maintained that petitioner,
by pressing on Malous face the piece of cloth
soaked in chemical while holding her body
tightly under the weight of his own, had
commenced the performance of an act indicative
of an intent or attempt to rape the victim. It is
argued that petitioners actuation thus described
is an overt act contemplated under the law, for
there can not be any other logical conclusion
other than that the petitioner intended to ravish
Malou after he attempted to put her to an
induced sleep. The Solicitor General, echoing
what the CA said, adds that if petitioners
intention was otherwise, he would not have lain
on top of the victim.15
Under Article 335 of the Revised Penal Code,
rape is committed by a man who has carnal
knowledge or intercourse with a woman under
any of the following circumstances: (1) By using
force or intimidation; (2) When the woman is
deprived of reason or otherwise unconscious;
and (3) When the woman is under twelve years
of age or is demented. Under Article 6, in
relation to the aforementioned article of the
same code, rape is attempted when the offender
commences the commission of rape directly by
overt acts and does not perform all the acts of
execution which should produce the crime of
rape by reason of some cause or accident other
than his own spontaneous desistance.16
Expounding on the nature of an attempted
felony, the Court, speaking thru Justice Claro M.
Recto in People vs. Lamahang,17 stated that "the
attempt which the Penal Code punishes is that
which has a logical connection to a particular,
concrete offense; that which is the beginning of
the execution of the offense by overt acts of the
perpetrator, leading directly to its realization and
consummation." Absent the unavoidable
connection, like the logical and natural relation
of the cause and its effect, as where the purpose
of the offender in performing an act is not
certain, meaning the nature of the act in relation
to its objective is ambiguous, then what obtains
is an attempt to commit an indeterminate
offense, which is not a juridical fact from the
standpoint of the Penal Code.18
There is absolutely no dispute about the
absence of sexual intercourse or carnal
knowledge in the present case. The next
question that thus comes to the fore is whether
or not the act of the petitioner, i.e., the pressing
of a chemical-soaked cloth while on top of
Malou, constitutes an overt act of
rape.1avvphil.net
Overt or external act has been defined as some
physical activity or deed, indicating the intention
to commit a particular crime, more than a mere
planning or preparation, which if carried out to its
complete termination following its natural
course, without being frustrated by external
obstacles nor by the voluntary desistance of the
perpetrator, will logically and necessarily ripen
into a concrete offense.19
Harmonizing the above definition to the facts of
this case, it would be too strained to construe
petitioner's act of pressing a chemical-soaked
cloth in the mouth of Malou which would induce
her to sleep as an overt act that will logically and
necessarily ripen into rape. As it were, petitioner
did not commence at all the performance of any
act indicative of an intent or attempt to rape
Malou. It cannot be overemphasized that
petitioner was fully clothed and that there was
no attempt on his part to undress Malou, let
alone touch her private part. For what reason
petitioner wanted the complainant unconscious,
if that was really his immediate intention, is
anybodys guess. The CA maintained that if the
petitioner had no intention to rape, he would not
have lain on top of the complainant. Plodding
on, the appellate court even anticipated the next
step that the petitioner would have taken if the
victim had been rendered unconscious. Wrote
the CA:
The shedding of the clothes, both of the attacker
and his victim, will have to come later. His
sexual organ is not yet exposed because his
intended victim is still struggling. Where the
intended victim is an educated woman already
mature in age, it is very unlikely that a rapist
would be in his naked glory before even starting
his attack on her. He has to make her lose her
guard first, or as in this case, her
unconsciousness.20
At bottom then, the appellate court indulges in
plain speculation, a practice disfavored under
the rule on evidence in criminal cases. For, mere
speculations and probabilities cannot substitute
for proof required to establish the guilt of an
accused beyond reasonable doubt.21
In Perez vs. Court of Appeals,22 the Court
acquitted therein petitioner of the crime of
attempted rape, pointing out that:
xxx. In the crime of rape, penetration is an
essential act of execution to produce the felony.
Thus, for there to be an attempted rape, the
accused must have commenced the act of
penetrating his sexual organ to the vagina of the
victim but for some cause or accident other than
his own spontaneous desistance, the
penetration, however, slight, is not completed.
xxx xxx xxx
Petitioners act of lying on top of the
complainant, embracing and kissing her,
mashing her breasts, inserting his hand inside
her panty and touching her sexual organ, while
admittedly obscene and detestable acts, do not
constitute attempted rape absent any showing
that petitioner actually commenced to force his
penis into the complainants sexual organ. xxx.
Likewise in People vs. Pancho,23 the Court held:
xxx, appellant was merely holding complainants
feet when his Tito Onio arrived at the alleged
locus criminis. Thus, it would be stretching to the
extreme our credulity if we were to conclude that
mere holding of the feet is attempted rape.
Lest it be misunderstood, the Court is not saying the accessory penalties thereof and to pay the
that petitioner is innocent, under the premises, costs.
of any wrongdoing whatsoever. The information SO ORDERED.
filed against petitioner contained an allegation CANCIO C. GARCIA
that he forcefully covered the face of Malou with Associate Justice
a piece of cloth soaked in chemical. And during
the trial, Malou testified about the pressing
against her face of the chemical-soaked cloth
and having struggled after petitioner held her
tightly and pinned her down. Verily, while the
series of acts committed by the petitioner do not
determine attempted rape, as earlier discussed,
they constitute unjust vexation punishable as
light coercion under the second paragraph of
Article 287 of the Revised Penal Code. In the
context of the constitutional provision assuring
an accused of a crime the right to be informed of
the nature and cause of the accusation,24 it
cannot be said that petitioner was kept in the
dark of the inculpatory acts for which he was
proceeded against. To be sure, the information
against petitioner contains sufficient details to
enable him to make his defense. As aptly
observed by then Justice Ramon C. Aquino,
there is no need to allege malice, restraint or
compulsion in an information for unjust vexation.
As it were, unjust vexation exists even without
the element of restraint or compulsion for the
reason that this term is broad enough to include
any human conduct which, although not
productive of some physical or material harm,
would unjustly annoy or irritate an innocent
person.25 The paramount question is whether
the offenders act causes annoyance, irritation,
torment, distress or disturbance to the mind of
the person to whom it is directed.26 That Malou, SECOND DIVISION
after the incident in question, cried while relating [G.R. Nos. 48535-36 : December 21,
to her classmates what she perceived to be a 1990.]
sexual attack and the fact that she filed a case 192 SCRA 533
for attempted rape proved beyond cavil that she KOH TIECK HENG, Petitioner, vs.
was disturbed, if not distressed by the acts of PEOPLE OF THE PHILIPPINES and
petitioner. COURT OF APPEALS, Respondents.
The penalty for coercion falling under the
second paragraph of Article 287 of the Revised
DECISION
Penal Code is arresto menor or a fine ranging
from 5.00 to 200.00 or both. REGALADO, J.:
WHEREFORE, the assailed Decision of the
Court of Appeals affirming that of the Regional This petition for review on Certiorari
Trial Court of Manila, is hereby REVERSED and impugns the decision of the Court of
SET ASIDE and a new one entered Appeals in CA-G.R. No. 16246-47-CR 1
ACQUITTING petitioner Renato D. Baleros, Jr. which affirmed the judgment of the former
of the charge for attempted rape. Petitioner, Court of First Instance of Manila in
however, is adjudged GUILTY of light coercion Criminal Cases Nos. 15006 and 15007
and is accordingly sentenced to 30 days of convicting herein accused-petitioner of
arresto menor and to pay a fine of 200.00, with estafa and attempted estafa, respectively.
The facts as found by the trial court and
adopted by respondent court are as
follows:
"From the evidence extant on the record,
the following facts appear undisputed:
That accused Koh Tieck Heng, alias Tomas
P. Flores opened Savings Account No.
26580, with the Security Bank and Trust
Company, Escolta St., Manila, hereinafter
called SBTC in short, with an initial
deposit of P500.00, made on 21 Feb.
1973, for which he was given a pass book
in his name of Tomas P. Flores (see Exh.
C). He made a second deposit of P400.00
then a withdrawal of P500.00 then a
deposit of P775.00, and then a withdrawal
of P1,000.00 (Entries on Exh. C).
"On 13 March (sic, August) accused went
to SBTC and filled up or accomplished and
signed a deposit slip (Exh. B) for a deposit
of P18,060.00 in check. With the deposit
slip, he submitted to Urbana Ramos de
Ferrer, Teller No. 2 of SBTC, his pass book
(Exh. C) and a Philippine Bank of
Communications Check No. U-186378,
dated August 9, 1973 (Exh. A) for
P18,060.00, appearing to have been
signed and issued by `F. Dycaico', who
was then maintaining with the Philippine
Bank of Communications, hereinafter
referred also as PBC, a checking account
No. 13360. This check was signed and
indorsed by the accused. Upon deposit of
this check for P18,060.00, the said sum
was posted in the pass book (Exh. C), as
shown in Exhibit C-1. (T.S.N., pp. 5-15,
Oct. 10, 1973, hearing).:-cralaw
"On 16 August 1973, the accused
withdrew from this Savings Account No.
26580, the sum of P10,000.00 upon
submission to Margarita Tiongson, Teller
No. 3, of a withdrawal slip (Exh. E)
accomplished and signed by him. Such
withdrawal was posted in the pass book
(Exh. C), shown by Exhibit C-2. Upon
receipt of the amount withdrawn, the
teller caused the accused to sign at the
back of the withdrawal slip and which
signature is marked Exhibit E-1. On the
next day, 17 August 1973, the accused
withdrew another amount of P5,500.00
upon defendant's submission to Teller No.
3 of a withdrawal slip (Exh. F) and the
pass book. The withdrawal was posted in
the pass book as shown by Exhibit C-3.
Upon receipt of the sum withdrawn, the
teller caused the accused to sign at the
back of the withdrawal slip and which
signature is marked Exhibit F-1. (T.S.N.,
pp. 21-30; 32-39, id.).
"On 18 August 1973, the accused went
again to the SBTC to deposit another
Philippine Bank of Communications Check
No. U-186414 (Exh. H), dated 11 August
1973 for P18,060.00 which appears to be
signed by 'F. Dycaico' against Checking
Account No. 13360. Accused, therefore,
filled up and accomplished a deposit slip
(Exh. I) for P18,060.00. After
accomplishing Exhibit I, accused
submitted the check (Exh. H), the pass
book (Exh. C) and the deposit slip (Exh. I)
to Candida Abella Villanueva, Teller No. 5.
The deposit of P18,060.00 was thus
posted at the pass book (Exh. C), as
shown by Exh. C-4 (T.S.N., pp. 60-70,
Id.).
"Sometime in that month of August 1973,
Florencio Dycaico, who maintains the
Checking Account No. 13360 with the
Philippine Bank of Communications saw
his Statement of Account and came upon
an amount of P18,060.00 debited against
his account. He complained to the PBC
that he never issued a check for that
much. With this information PBC informed
SBTC that the check, Exh. A, was a
spurious check. So, SBTC officials
instructed their bank tellers to watch for
Tomas P. Flores. NBI agent Mamerto
Espartero was also assigned to crack
down on check forgers or passers in
company with an informer, at the
premises of SBTC, in coordination with
SBTC officials (T.S.N., pp. 3-7, 12, 16-17,
Nov. 12, 1973, hearing).
"Then, came the pay off. The accused
appeared in the SBTC premises on 22
August 1973. He filled up, accomplished
and signed a withdrawal slip (Exh. K) for
P15,500.00, and after that he submitted
his passbook (Exh. C) with the withdrawal
slip to Maria Victoria Soriano, SBTC Teller
No. 7. Forewarned to watch for the
accused Tomas P. Flores, she asked the
accused to sign his name in Exh. K, and
he did sign it as requested. He signed his
name of Koh Tieck Heng (See Exh. K-3).
After that, Teller No. 7 brought the slip
and the pass book of Tomas P. Flores.
Teller No. 7 returned to her cage and then
called up for Tomas P. Flores. The accused
went to Teller No. 7. Teller No. 7 asked
the accused to sign his name at the back,
and which signature is marked Exh. K-2.
After he signed Exh. K-2, the NBI agent
Espartero swooped down on the accused
and apprehended him. The accused was
brought inside the Cashier's Office. He
was interviewed and then later brought to
the NBI office where he was investigated.
In the course of his investigation, he
executed a written statement now marked
Exh. M. (T.S.N., pp. 3-20, Oct. 22, 1973,
hearing)." 2
Based on the facts narrated, appellant
Koh Tieck Heng, alias Teddy Koh, alias
Tomas P. Flores, was charged in Criminal
Case No. 15006 before the then Court of
First Instance of Manila, Branch XII, with
the crime of estafa thru falsification of a
commercial document in an information
which reads:
"That on or about and during the period
comprised between August 13, 1973 and
August 17, 1973, inclusive, in the City of
Manila, Philippines, the said accused,
conspiring and confederating with one
whose true name, identity and present
whereabouts are still unknown and
mutually helping each other, did then and
there wilfully, unlawfully and feloniously,
with intent to defraud, commit acts of
falsification on a commercial document in
the following manner, to wit: the said
accused, after opening a savings account
with the Security Bank and Trust
Company, under Savings Account No.
26580 in the name of Tomas P. Flores,
and having somehow illegally obtained
possession of Philippine Bank of
Communications Check No. U-186378,
dated July 14, 1973, pay to cash, in the
amount of P225.00, issued by F.
DYCAICO, and therefore a commercial
document, did then and there wilfully,
unlawfully and feloniously forge and falsify
and/or cause to be forged and falsified the
aforesaid check by then and there erasing
and altering and/or causing to be erased
and altered the date and amount of said
check and superimposing or causing to be
superimposed over the original date and
amount of said check the following: 'Aug.
9' after the printed word 'MANILA', the
figures '73' after the figures '19', the
figures 'P18,060.00' after the sign 'P' and
the words 'Eighteen Thousand Sixty Only'
after the printed word 'PESOS', thus
causing it to appear as it did appear that
said check was issued on August 9, 1973,
for the amount of P18,060.00, when in
truth and in fact as the said accused well
knew, the correct date of said check is
July 14, 1973, and the real amount of the
check so drawn and issued by said F.
DYCAICO is only for P225.00, thereby
making or causing to be made alterations
and changes in a genuine document which
altered or changed its meaning: that once
the aforesaid check had been forged and
falsified, altered or otherwise changed in
the manner above set forth, said accused
affixed the signature Tomas P. Flores at
the back thereof and deposited said check
in his account with the Security Bank and
Trust Company, Escolta Branch, this City,
which check was cleared by the Philippine
Bank of Communications upon
presentation thereof believing that said
check is genuine; and thereafter, said
accused, with intent to defraud, withdrew
from said account the amounts of
P10,000.00 and P5,500.00 on August 16,
1973 and August 17, 1973 respectively, or
a total of P15,500.00, which amount, once
in his possession, said accused
misappropriated, misapplied and
converted to his own personal use and
benefit, to the damage and prejudice of
the Security Bank and Trust Company
and/or the Philippine Bank of
Communications in the aforesaid amount
of P15,500.00, Philippine currency."
(Emphasis supplied.) 3
On the same date, appellant was also
charged in Criminal Case No. 15007 with
attempted estafa thru falsification of a
commercial document before the same
court under the following information:
"That on or about and during the period
comprised between August 18, 1973 and
`August 22, 1973, inclusive, in the City of
Manila, Philippines, the said accused,
being then a depositor of the Security
Bank and Trust Company, Escolta Branch,
this City, under Savings Account No.
26580, conspiring and confederating
together with one whose true name,
identity and present whereabouts are still
unknown and mutually helping each other,
with intent to defraud, commenced the
commission of the crime of estafa thru
falsification of commercial document
directly by overt acts, to wit: the said
accused having somehow obtained
possession of Philippine Bank of
Communications Check No. U-186414,
dated August 11, 1973, pay to cash, in
the amount of P2,030.00 issued by F.
DYCAICO, and therefore a commercial
document, did then and there wilfully,
unlawfully and feloniously forge and falsify
and or cause to be forged and falsified the
aforesaid check by then and there erasing
and altering and/or causing to be erased
and altered the amount of said check and
superimposing or causing to be
superimposed over the original amount of
said check the figures 'P18,060.00' after
the sign 'P' and the words 'Eighteen
Thousand Sixty Only' after the printed
word 'Pesos', thus causing it to appear, as
in fact it did appear, that said check was
issued for the amount of P18,060.00,
when in truth and in fact as the accused
well knew, the correct and real amount of
the check so drawn and issued by said F.
DYCAICO is only for P2,030.00 thereby
making or causing to be made alterations
and changes in a genuine document which
altered or changed its meaning; that once
the aforesaid check had been forged and
falsified, altered or otherwise changed in
the manner above set forth, said accused
affixed the signature Tomas P. Flores at
the back of said check and deposited the
same in his account with the Security
Bank and Trust Company, the latter
believing that said check is genuine,
accepted the same for deposit, and
thereafter, the said accused with intent to
defraud, accomplished a withdrawal slip
for the sum of P15,500.00 and presented
the same to the teller of the Security Bank
and Trust Company for the purpose of
withdrawing the said amount, but the said
accused did not perform all the acts of
execution which should have produced the
crime of estafa thru falsification of a
commercial document by reason of some
cause other than his own spontaneous
desistance, that is, by the timely
discovery made by the officials and/or
employees of said bank of the forgery and
falsification made on the aforesaid check
before payment could be made which led
then and there to the apprehension of said
accused." (Emphasis ours.) 4
Appellant pleaded not guilty when
arraigned in both cases, which were
subsequently ordered consolidated. In his
defense at the trial, and later adopted for
the same purpose in his brief, appellant
claims::-cralaw
"That on August 9, 1973, he went to the
Supersonic Auto Supply, situated at the
corner of Espaa and P. Leoncio Sts.,
Sampaloc, Manila. He went there to buy
auto spare parts as he is engaged in the
buying and selling of auto spare parts.
When he was at this store, a person whom
accused claimed to know later as Jimmy
Go, was also buying tires. The store did
not have tires for sale, and so the tire
salesman pointed to the accused as one
who is selling such stuff. So, this man
went to the accused and asked him if he
had tires for sale. Accused asked the man
who introduced himself to the accused as
Jimmy Go, how many tires he needed.
This man told the accused he needed
twenty-four (24) pieces of tires. Accused
told this `Jimmy Go' that he had the 24
tires but that he needed cash. Accused
told `Jimmy Go' that he does not accept
checks for payment, especially he did not
know him. Accused claims that was the
first time he had met this man 'Jimmy
Go'. 'Jimmy Go', however, told the
accused that he can issue the check and
he can deliver the tires only after having
encashed the same. To this proposition,
the accused agreed. 'Jimmy Go',
therefore, brought out a check, now Exh.
A, and then signed it in his presence. He
signed the name 'F. Dycaico'. He then
crossed the check at the upper left hand
corner of the check. Accused claims that
except the signature and the lines used to
cross the check as aforementioned all the
other handwritten portions of the check
were already there when 'Jimmy Go'
signed it.
"After signing Exh. A, 'Jimmy Go' handed
it to the accused. Seeing the amount to be
big, as the cost price of the 24 pieces of
tires was only about P3,000.00, more or
less, the accused told, 'Jimmy Go' that he
has no cash to return for the difference.
'Jimmy Go' told him to just deliver the
difference after he has encashed it. So the
accused got the check and they parted.
"He claimed he went to the SBTC on 13
August 1973 as he deposited the check
(Exh. A) in his bank account (passbook,
Exh. C), filling up therefor a deposit slip
(Exh. B.). The accused claimed that on 13
August 1973, he went to withdraw
P10,000.00, accomplishing Exh. E. After
withdrawing P10,000.00, the accused
went to Espaa St. and delivered to
'Jimmy Go' the P10,000.00. He delivered
the tires in the afternoon. On that same
day, 'Jimmy Go' told the accused that he
needed the balance of the money and so
he said that he delivered the balance of
P5,500.00 on 16 August 1973. On this
date, 16 Aug. 1973, as per his claim,
'Jimmy Go' again delivered to him another
check (Exh. H) as 'Jimmy Go' was buying
another fifty (50) pieces of tires. So, he
took the check and deposited it with SBTC
on his account (passbook, Exh. C). He
claims he could not get the proceeds of
the checks because at the time he was
withdrawing from his deposit, two men
approached him and immediately
handcuffed him" 5
On November 26, 1973 the trial court
rendered judgment 6 finding appellant
guilty beyond reasonable doubt of the
felonies charged in both cases, the
decretal portion of its decision reading as
follows:
"IN VIEW OF THE FOREGOING
CONSIDERATIONS, the Court finding the
guilt of the accused for the crime charged
in both cases (No. 15006 and 15007) to
have been proved beyond reasonable
doubt, and there being neither mitigating
nor aggravating circumstances to affect
his penal liability, hereby imposes upon
the accused and sentences him to suffer:
(a) In Crim. Case. No. 15006
an indeterminate penalty of from FOUR
(4) years and TWO (2) months of prision
correccional, as minimum, to EIGHT (8)
years and ONE (1) day of prision mayor,
as maximum, with all the accessory
penalties of the law, and to indemnify the
Security Bank and Trust Company the
sum of P18,060.00, sans subsidiary
imprisonment in case of insolvency, and
to pay the costs; and
(b) In Crim. Case No. 15007
an indeterminate penalty of from TWO (2)
years, FOUR (4) months of prision
correccional, as minimum, to six (6) years
of prision correccional as maximum, with
all the accessory penalties of the law, and
to pay a fine of P5,000.00 and to suffer a
subsidiary imprisonment in case of
insolvency at the rate of P8.00 a day, but
in no case shall it exceed one-third (1/3)
of the term of the sentence nor shall it
continue for more than one year, and to
pay the costs.
"The accused shall first serve the sentence
imposed in Crim. Case No. 15006, to
which shall be credited four-fifths (4/5) of
his preventive imprisonment in the service
of his sentence.: rd
SO ORDERED." 7
Not satisfied therewith, petitioner
interposed an appeal with respondent
Court of Appeals, docketed therein as CA-
G.R. No. 16246-47-Cr. Respondent court,
in a decision promulgated on September
26, 1977, affirmed the judgment of
conviction but modified the penalties in
both cases as follows:
"In Criminal Case No. 15006
to suffer an indeterminate penalty of four
(4) years and two (2) months of prision
correccional, as minimum, to six (6)
years, eight (8) months and twenty (20)
days of prision mayor, as maximum, with
all the accessory penalties of the law; to
indemnify the Security Bank and Trust
Company in the sum of P18,060.00,
without subsidiary imprisonment in case
of insolvency; and to pay the costs; and
In Criminal Case No. 15007
to suffer the penalty of four (4) months
and twenty (20) days of arresto mayor,
and to pay the costs.
"The Accused shall first serve the
sentence imposed in Criminal Case No.
15006 and shall be credited with the term
of his preventive imprisonment in
accordance with Article 29 of the Revised
Penal Code, as amended by R.A. No.
6127.
SO ORDERED." 8
Culled from the submissions of both
parties in the present appeal and the
established facts of these cases, the
issues raised and submitted for
determination by us may be synthesized
into whether or not respondent court
erred
(1) In supposedly changing the tenor and
or nature of the accusation and convicting
appellant on the basis of this new
accusation without having informed him of
the nature and cause of the accusation;
(2) In holding that there is a crime of
attempted estafa and convicting appellant
of such crime in the absence of the
essential elements of deceit and damage;
and
(3) In arriving at a conclusion of guilt of
the crimes of attempted estafa and estafa,
both thru falsification of commercial
documents, on the basis merely of a
presumption of law, despite the absence
of evidence showing that appellant
committed, or had knowledge of, the
crimes charged, in violation of the
constitutional presumption of innocence
and doctrinal jurisprudence on proof
beyond reasonable doubt in favor of
appellant.
Parenthetically, this petition for review on
Certiorari was formerly denied in a
Resolution of this Court, dated August 18,
1978, 9 but was later on given due course
on a Motion for Reconsideration and/or for
New Trial, 10 based inter alia, on an
alleged letter of one Jimmy Go dated
August 14, 1978, which appellant
supposedly received on August 21, 1978
and which he claims he could not have
discovered and produced during the trial
of the cases despite diligent efforts to
produce the same. Mere zerox copies of
the supposed letter and the mailing
envelope were appended to said motion.
We do not, however, deem it proper to
include the aforesaid matter in the issues
above enumerated considering that the
requirement in the 1964 Rules of Court 11
, which was then in force, to the effect
that a motion for new trial must be
supported by affidavits of the witnesses
by whom such evidence is expected to be
given, has not been complied with; and
(b) the judgment of conviction will not in
any way be affected by such evidence the
authenticity and credibility whereof have
not been established, aside from the
obvious fact that the tenor thereof is
inherently improbable and such a letter
could easily be concocted.: nad
Coming now to the first issue, appellant
alleges that there is a variance between
the allegations in the information and the
evidence adduced, thereby depriving him
of the right to be informed of the nature
and cause of the accusation against him.
The rule that an accused cannot be
convicted of an offense not charged or
included in the information is based upon
the right to be informed of the true nature
and cause of the accusation against him.
12 However, respondent court
exhaustively discussed this issue and
lucidly explained the facts upon which its
judgment of conviction was predicated,
thus:
"It is a fact that under the two
informations, the mode of falsification
attributed to the Accused is that of having
erased and altered the dates and amounts
of the checks in question, and
superimposing or causing to be
superimposed over the original dates and
amount of said checks other dates and
amounts, thereby making alterations and
changes in genuine documents which
changed their meaning. Clearly, therefore,
the offense charged is that penalized
under Article 172 in relation to Article 171
(6) of the Revised Penal Code.
"It is to be noted, however, that
presented in evidence by the prosecution
for the First Case were two checks, Exhs.
'A' and `O', which both bear the identical
Check No. U-186378 but the former bears
the amount of P225.00, while the latter
that of P18,060.00, both drawn and
issued by 'F. Dycaico'. For the Second
Case, two checks were likewise presented,
Exhs. 'H' and 'P' which bear the identical
Check No. U-186414, but the former
bears the amount of P2,030.00 while the
latter that of P18,060.00, both drawn and
issued by 'F. Dycaico'.
"Prosecution witness, Florencio Dycaico,
admitted that he issued the checks, Exhs.
'O' and 'P', in the amounts of P225.00 and
P2,030.00 respectively, but denied having
issued at all the checks, Exhibits 'A' and
'H', both in the respective amounts of
P18,060.00.
"It has to be conceded, therefore, as
alleged by the defense, and likewise
admitted by the People, that considering
the evidence adduced, there were no
erasures nor alterations nor
superimpositions as alleged in both
Informations, but that Exhibits 'A' and 'H'
were forgeries in toto. In other words,
while the Accused has been charged of
Estafa and Attempted Estafa thru
Falsification of a commercial document
under Article 172 in relation to Article
171, paragraph 6 the Revised Penal Code,
reading
'Art. 171. . . . shall falsify a document by
committing any of the following acts:
xxx
'6. Making any alterations or intercalation
in a genuine document which changes its
meaning,'
based on the evidence, the accusation
would fall under either paragraph 1 or 2 of
Article 171 of the same Code which reads:
'1. Counterfeiting or imitating any
handwriting, signature or rubric;
'2. Causing it to appear that persons have
participated in any act or proceeding when
they did not in fact so participate.'
"Be that as it may, as pointed out by the
State, the aforementioned variance affects
solely the charge of Falsification, of which
the Accused should not have been
convicted under the time-honored rule
that an Accused should be informed of the
true nature and cause of the accusation
against him. However, with respect to the
charges of Estafa and Attempted Estafa,
respectively, (complexed under the two
Informations with Falsification of a
Commercial Document) conviction would
still be proper, the two essential requisites
of Estafa, namely fraud or deceit and
damage to another, having been charged
and proven." 13
On the second issue, appellant contends
that respondent court erred in convicting
him of attempted estafa in Criminal Case
No. 15007 when it admitted in its decision
that appellant was not able to withdraw
the value of the second check as he was
apprehended in the act of withdrawing the
same. From this, he argues that having
failed to withdraw the sum as part value
of the second check, no amount
whatsoever was taken by him, hence no
damage or prejudice was suffered by the
bank. Absent such damage, he concludes,
he cannot be convicted of attempted
estafa.: nad
This is specious argumentation.
Basically, the two essential requisites of
fraud or deceit and damage or injury must
be established by sufficient and competent
evidence in order that the crime of estafa
may be established. 14 Deceit is the false
representation of a matter of fact
(whether by words or conduct, by false or
misleading allegations, or by concealment
of that which should have been disclosed)
which deceives or is intended to deceive
another so that he shall act upon it to his
legal injury. 15 The fact that appellant
was the possessor and utterer of the
checks in question (Exhibits "A" and "H")
and having benefited from the subsequent
withdrawals, as well as having attempted
to gain by trying to withdraw an amount
thereon, the inevitable conclusion would
be that he was the one who falsified said
Exhibits "A" and "H". Ineluctably, the use
of the spurious checks is by itself fraud or
deceit.
Although one of the essential elements of
estafa is damage or prejudice to the
offended party, 16 in the absence of proof
thereof the offender would at least be
guilty of attempted estafa. Appellant
commenced the commission of the crime
of estafa but he failed to perform all the
acts of execution which would produce the
crime, not by reason of his own
spontaneous desistance but because of his
apprehension by the authorities before he
could obtain the amount. Since only the
intent to cause damage and not the
damage itself has been shown,
respondent court correctly convicted
appellant of attempted estafa.
Lastly, appellant insists that there is no
evidence whatsoever pointing to him as
the person who falsified the two checks in
question (Exhs. "A" and "H"), as the
prosecution failed to refute his version
regarding the circumstances under which
he allegedly took possession of the said
checks. He further posits the view that
while the courts may apply the
presumptions of law in some cases, the
presumption that the possessor of a
falsified document is presumed to be the
forger does not constitute proof beyond
reasonable doubt and cannot be applied in
his case, allegedly because the provisions
not only of the Constitution but also of the
Rules of Court must be the basis of the
judgment.
We disagree.
While it may appear that the prosecution
failed to directly contradict the claim of
appellant as to how he came into
possession of the two checks, it is
understandable that the prosecution
would not always have the means for
obtaining such direct evidence to confute
acts contrived clandestinely. Undoubtedly,
too, as a general rule, positive testimony
as to a particular fact, uncontradicted by
anyone, should control the decision of the
court. Where, however, there is such an
inherent improbability in the testimony or
theory of the witness, the court may
properly disregard such evidence, even in
the absence of any direct conflicting
testimony. We agree with respondent
court that the People's version of the facts
deserves more credence and it is more in
consonance with human experience.
As repeatedly expounded by this Court,
evidence to be worthy of credit, must not
only proceed from a credible source but
must, in addition, be credible in itself. And
by this is meant that it shall be natural,
reasonable and probable as to make it
easy to believe. 17 No better test has yet
been found to determine the value of the
testimony of a witness than its conformity
to the knowledge and common experience
of mankind. 18 As bewailed by the court
below, the theory espoused by appellant
"is taxing too much the credulity of this
Court, an insult to the humble intelligence
and the common sense of this Court." 19
The checks in question (Exhibits "A" and
"H") were undeniably spurious, or were
forgeries in toto. Prosecution witness
Florencio Dycaico categorically testified
that he did not issue said checks but only
those checks in the amount of P225.00
and P2,030.00 (Exhibits "O" and "P"). The
disclaimer by Dycaico of his alleged
signatures on the aforesaid checks is
prima facie evidence of falsification and
consequently shifts the burden of
evidence to appellant to prove otherwise,
but which burden appellant has not
discharged.:-cralaw
The court a quo, as well as respondent
court, posed the question as to the
identity of the forger, and we are satisfied
that both courts did not err in relying
upon the presumption that the possessor
of a falsified document is presumed to be
the author thereof. It is an established
rule that when it is proved that a person
has in his possession a falsified document
and makes use of the same, the
presumption or inference is justified that
such person is the forger. 20 The
petitioner has been shown to have been
the possessor and utterer of the two
checks (Exhibits "A" and "H") when he
made use of and benefited therefrom by
his withdrawals of and attempt to
withdraw funds through said checks. The
circumstance, therefore, that appellant
made use of and benefited from the
falsified document is a strong evidence
that he either himself falsified it or caused
the same to be falsified, 21 he being
criminally responsible in either case. 22
Since appellant is the only person who
stood to be benefited by the falsification of
the document that was found in his
possession, it is presumed that he is the
material author of such falsification. 23
It is thus apparent that the refusal of
respondent Court of Appeals to give
credence to the theory of the defense is
substantially supported by the ambient
circumstances and the evidence on
record. Besides, this being a petition for
review on Certiorari of a decision of
respondent court rendered in the exercise
of its exclusive appellate jurisdiction over
the decision of the trial court, said
decision of respondent court is "final",
subject only to our power of review on
questions of law. 24
WHEREFORE, the petition is DENIED and
the appealed judgment of respondent
Court of Appeals is hereby AFFIRMED in
toto.
SO ORDERED.
FIRST DIVISION RAMON JOSUE y
GONZALES, Petitioner, G.R. No. 199579 -
versusPEOPLE OF THE PHILIPPINES,
Respondent. Present: SERENO, CJ.,
Chairperson, LEONARDO-DE CASTRO,
BERSAMIN, VILLARAMA, JR., and REYES, JJ.
Promulgated: DEC 1 0 2012 _ RESOLUTION
REYES, J.: Before the Court is a Petition for
Review on Certiorari filed by petitioner Ramon
Josue y Gonzales (Josue) to assail the Decision
1 dated June 30, 2011 and Resolution2 dated
December 1, 2011 of the Court of Appeals (CA)
in CA-G.R. CR No. 33180. The petitioner was
charged with the cnme of frustrated homicide
Penned by Associate Justice Vicente S.E.
Veloso, with Associate Justices Francisco P.
Acosta and Angelita A. Gacutan, concurring;
rolla, pp. 24-43. 2 Jd. at 50. Resolution 2 G.R.
No. 199579 before the Regional Trial Court
(RTC) of Manila, via an information that reads:
That on or about May 1, 2004, in the City of
Manila, Philippines, the said accused, with intent
to kill, did then and there willfully, unlawfully and
feloniously, attack, assault and use personal
violence upon the person of ARMANDO
MACARIO y PINEDA a.k.a. BOYET ORA, by
then and there shooting the said Armando
Macario y Pineda a.k.a. Boyet Ora several times
with a cal. 45 pistol hitting him on the different
parts of his body, thus performing all the acts of
execution which should have produced the
crime of Homicide, as a consequence, but
nevertheless did not produce it by reason of
causes independent of his will, that is, by the
timely and able medical attendance rendered to
the said ARMANDO MACARIO y PINEDA a.k.a.
BOYET ORA which prevented his death
thereafter. Contrary to law.3 The case was
docketed as Crim. Case No. 05-236299 and
raffled to Branch 40 of the RTC. Upon
arraignment, the petitioner entered a plea of not
guilty. After pre-trial, trial on the merits ensued.
The witnesses for the prosecution were: (1)
victim Armando Macario y Pineda (Macario); (2)
Dr. Casimiro Tiongson, Jr. (Dr. Tiongson), Chief
Surgical Resident of Chinese General Hospital;
(3) Dr. Edith Calalang (Dr. Calalang), a
radiologist; (4) Ariel Villanueva, an eyewitness to
the crime; and (5) Josielyn Macario, wife of the
victim. The prosecution presented the following
account: On May 1, 2004, at around 11:15 in the
evening, Macario, a barangay tanod, was buying
medicine from a store near the petitioners
residence in Barrio Obrero, Tondo, Manila when
he saw the petitioner going towards him, while
shouting to ask him why he had painted the
petitioners vehicle. Macario denied the
petitioners accusation, but petitioner still pointed
and shot his gun at Macario. The gunshots fired
by the petitioner hit Macarios elbow and fingers.
As the unarmed Macario tried to flee from his
assailant, the petitioner still fired his gun at him,
causing him to sustain a gunshot 3 Id. at 63.
Resolution 3 G.R. No. 199579 wound at his
back. Macario was then rushed to the Chinese
General Hospital for medical treatment. Dr.
Tiongson confirmed that Macario sustained
three (3) gunshot wounds: (1) one on his right
hand, (2) one on his left elbow, and (3) one
indicating a bullets entry point at the posterior of
the chest, exiting at the anterior line. Dr.
Calalang took note of the tiny metallic foreign
bodies found in Macarios x-ray results, which
confirmed that the wounds were caused by
gunshots. Further, she said that the victims
injuries were fatal, if not medically attended to.
Macario incurred medical expenses for his
treatments. For his defense, the petitioner
declared to have merely acted in selfdefense.
He claimed that on the evening of May 1, 2004,
he, together with his son Rafael, was watching a
television program when they heard a sound
indicating that the hood of his jeepney was being
opened. He then went to the place where his
jeepney was parked, armed with a .45 caliber
pistol tucked to his waist. There he saw Macario,
together with Eduardo Matias and Richard
Akong, in the act of removing the locks of his
vehicles battery. When the petitioner sought the
attention of Macarios group, Macario pointed his
.38 caliber gun at the petitioner and pulled its
trigger, but the gun jammed and failed to fire.
The petitioner then got his gun and used it to fire
at Macario, who was hit in the upper arm.
Macario again tried to use his gun, but it still
jammed then fell on the ground. As Macario
reached down for the gun, the petitioner fired at
him once more, hitting him at the back. When
Macario still tried to fire his gun, the petitioner
fired at him for the third time, hitting his hand
and causing Macario to drop his gun. The
petitioner got Macarios gun and kept it in his
residence. The petitioners son, Rafael Josue,
testified in court to corroborate his fathers
testimony. Resolution 4 G.R. No. 199579 SPO4
Axelito Palmero (SPO4 Palmero) also testified
for the defense, declaring that on May 26, 2004,
he received from Josue a .38 caliber revolver
that allegedly belonged to Macario. On October
22, 2009, the RTC rendered its Decision4
finding the petitioner guilty beyond reasonable
doubt of the crime of frustrated homicide. It gave
full credit to the testimony of the prosecution
witnesses, further noting that the defense had
failed to prove that the .38 caliber revolver that
was turned over to SPO4 Palmero actually
belonged to Macario. The dispositive portion of
the RTC Decision reads: WHEREFORE,
accused RAMON JOSUE y GONZALES is
found guilty beyond reasonable doubt of
Frustrated Homicide without any aggravating or
mitigating circumstances to vary the penalty
imposable. Applying the Indeterminate Sentence
Law, he is hereby sentenced to suffer an
indeterminate penalty of six (6) months and one
(1) day of prision correccional as minimum, to
eight (8) years and one (1) day of prision mayor
as maximum. Accused Ramon Josue y
Gonzales is hereby ordered to indemnify the
victim, Armando Macario y Pineda, the sum of
[P]32,214.25 for hospitalization and medicine
expenses as actual damages. The accuseds
bail is deemed cancelled. Bondsman is ordered
to surrender the accused to this Court for
execution of the final judgment. SO
ORDERED.5 Unsatisfied, the petitioner
appealed from the RTCs decision to the CA,
which affirmed the rulings of the RTC and thus,
dismissed the appeal. Hence, the present
petition. The petitioner assails the CAs
dismissal of the appeal, arguing that the
prosecution had failed to overthrow the
constitutional presumption of innocence in his
favor. We deny the petition. 4 Id. at 63-70. 5 Id.
at 69-70. Resolution 5 G.R. No. 199579 At the
outset, we emphasize that since the petitioner
seeks this Courts review of his case through a
petition for review under Rule 45 of the Rules of
Court, only questions of law shall be addressed
by the Court, barring any question that pertains
to factual issues on the crimes commission. The
general rule is that questions of fact are not
reviewable in petitions for review under Rule 45,
subject only to certain exceptions as when the
trial courts judgment is not supported by
sufficient evidence or is premised on a
misapprehension of facts.6 Upon review, the
Court has determined that the present case
does not fall under any of the exceptions. In
resolving the present petition, we then defer to
the factual findings made by the trial court, as
affirmed by the CA when the case was brought
before it on appeal. The Court has, after all,
consistently ruled that the task of assigning
values to the testimonies of witnesses and
weighing their credibility is best left to the trial
court which forms first-hand impressions as
witnesses testify before it. Factual findings of the
trial court as regards its assessment of the
witnesses credibility are entitled to great weight
and respect by this Court, particularly when
affirmed by the CA, and will not be disturbed
absent any showing that the trial court
overlooked certain facts and circumstances
which could substantially affect the outcome of
the case.7 As against the foregoing parameters,
the Court finds, and so holds, that both the trial
and appellate courts have correctly ruled on the
petitioners culpability for the crime of frustrated
homicide, which has the following for its
elements: (1) the accused intended to kill his
victim, as manifested by his use of a deadly
weapon in his assault; (2) the victim sustained
fatal or mortal wound/s but did not die because
of timely medical assistance; and 6 See Gotis v.
People, G.R. No. 157201, September 14, 2007,
533 SCRA 441, 447; citation omitted. 7 People
v. Del Rosario, G.R. No. 189580, February 9,
2011, 642 SCRA 625, 633; citation omitted.
Resolution 6 G.R. No. 199579 (3) none of the
qualifying circumstance for murder under Article
248 of the Revised Penal Code is present.
These elements were duly established during
the trial. The trial courts factual findings, when
taken collectively, clearly prove the existence of
the crimes first and second elements, pertaining
to the petitioners intent to kill and his infliction of
fatal wound upon the victim. Evidence to prove
intent to kill in crimes against persons may
consist, among other things, of the means used
by the malefactors; the conduct of the
malefactors before, at the time of, or
immediately after the killing of the victim; and the
nature, location and number of wounds
sustained by the victim.8 Significantly, among
the witnesses presented by the prosecution was
Villanueva, who, while being a friend of the
petitioner, had testified against the petitioner as
an eyewitness and specifically identified the
petitioner as the assailant that caused the
wounds sustained by the victim Macario. Even
the petitioner cites in the petition he filed with
this Court the prosecutions claim that at the
time he fired the first gunshot, he was shouting,
Papatayin kita! (I will kill you!)9 The doctors
who attended to the victims injuries also
affirmed before the trial court that Macario had
sustained gunshot wounds, and that the injuries
caused thereby were fatal if not given medical
attention. The trial court then held: Weighing the
evidence thus proffered, this Court believes the
prosecutions version. x x x x The Court gives
credence to the testimonies of the witnesses
presented by the prosecution as it did not find
any fact or circumstance in the shooting incident
to show that said witnesses had falsely testified
or that they were actuated by ill-motive. x x x x x
x x (A)s a result of being shot three (3) times
with a .45 caliber gun, complainant sustained
mortal wounds which without medical
assistance, 8 People v. Lanuza, G.R. No.
188562, August 24, 2011, 656 SCRA 293, 300.
9 Rollo, p. 11. Resolution 7 G.R. No. 199579
complainant could have died therefrom. Dr.
Casimiro Tiongson, Jr., the chief surgical
resident who attended the complainant and
prescribed his medicines, testified that the
victim, Armando Macario, sustained three (3)
gunshot wounds located in the left elbow, right
hand and another bullet entering his posterior
chest exiting in front of complainants chest.
These findings were also contained in the x-ray
consultation reports testified to by Dr. Edith
Calalang as corroborating witness.10 (Citations
omitted) What is also noteworthy is that the
petitioner invoked self-defense, after he had
admitted that he caused the victims wounds
when he shot the latter several times using a
deadly weapon, i.e., the .45 caliber pistol that he
carried with him to the situs of the crime. In
People v. Mondigo, 11 we explained: By
invoking self-defense, appellant admitted
committing the felonies for which he was
charged albeit under circumstances which, if
proven, would justify his commission of the
crimes. Thus, the burden of proof is shifted to
appellant who must show, beyond reasonable
doubt, that the killing of Damaso and wounding
of Anthony were attended by the following
circumstances: (1) unlawful aggression on the
part of the victims; (2) reasonable necessity of
the means employed to prevent or repel it; and
(3) lack of sufficient provocation on the part of
the person defending himself. 12 (Citations
omitted and emphasis ours) In order to be
exonerated from the charge, the petitioner then
assumed the burden of proving, beyond
reasonable doubt, that he merely acted in
selfdefense. Upon review, we agree with the
RTC and the CA that the petitioner failed in this
regard. While the three elements quoted above
must concur, self-defense relies, first and
foremost, on proof of unlawful aggression on the
part of the victim. If no unlawful aggression is
proved, then no self-defense may be
successfully pleaded.13 Unlawful aggression
here presupposes an actual, 10 Id. at 67-68. 11
G.R. No. 167954, January 31, 2008, 543 SCRA
384. 12 Id. at 389-390. 13 People v. Abesamis, correctly imposed for such offense an
G.R. No. 140985, August 28, 2007, 531 SCRA indeterminate penalty of six ( 6) months and one
300, 310-311; citations omitted. Resolution 8 (1) day of prision correccional as minimum, to
G.R. No. 199579 sudden, and unexpected eight (8) years and one (1) day of prision mayor
attack, or imminent danger of the attack, from as maximum. The award of actual damages is
the victim.14 In the present case, particularly also sustained. However, we hold that in line
significant to this element of unlawful with prevailing jurisprudence, 17 the victim is
aggression is the trial courts finding that entitled to an award of moral damages in the
Macario was unarmed at the time of the amount ofl!10,000.00. WHEREFORE, the
shooting, while the petitioner then carried with petition is DENIED. The Decision dated June 30,
him a .45 caliber pistol. According to prosecution 2011 and Resolution dated December 1, 2011
witness Villanueva, it was even the petitioner ofthe Court of Appeals in CA-G.R. CR No.
who confronted the victim, who was then only 33180 are AFFIRMED with MODIFICATION in
buying medicine from a sari-sari store. Granting that the petitioner Ramon Josue y Gonzales is
that the victim tried to steal the petitioners car also ordered to pay the offended party the
battery, such did not equate to a danger in his amount ofF 1 0,000.00 as moral damages
life or personal safety. At one point during the
fight, Macario even tried to run away from his
assailant, yet the petitioner continued to chase
the victim and, using his .45 caliber pistol, fired
at him and caused the mortal wound on his
chest. Contrary to the petitioners defense, there
then appeared to be no real danger to his life or
personal safety,15 for no unlawful aggression,
which would have otherwise justified him in
inflicting the gunshot wounds for his defense,
emanated from Macarios end. The weapon
used and the number of gunshots fired by the
petitioner, in relation to the nature and location
of the victims wounds, further negate the claim
of self-defense. For a claim of self-defense to
prosper, the means employed by the person
claiming the defense must be commensurate to
the nature and extent of the attack sought to be
averted, and must be rationally necessary to
prevent or repel an unlawful aggression.16
Considering the petitioners use of a deadly
weapon when his victim was unarmed, and his
clear intention to cause a fatal wound by still
firing his gun at the victim who had attempted to
flee after already sustaining two gunshot
wounds, it is evident that the petitioner did not
act merely in self-defense, but was an aggressor
who actually intended to kill his victim. 14 Supra
note 6, at 449. 15 See Nacnac v. People, G.R.
No. 191913, March 21, 2012, 668 SCRA 846,
856. 16 Razon v. People, G.R. No. 158053,
June 21, 2007, 525 SCRA 284, 301; citation
omitted. Resolution 9 G.R. No. 199579 Given
the foregoing, and in the absence of any
circumstance that would have qualified the crime SECOND DIVISION
to murder, we hold that the trial court committed G.R. No. 90035 September 13, 1991
no error in declaring the petitioner guilty beyond THE PEOPLE OF THE PHILIPPINES, plaintiff-
reasonable doubt of the crime of frustrated appellee,
homicide. Applying the rules provided by the vs.
Indeterminate Sentence Law, the trial court
AMADEO HANGDAAN and ROMEL
BALLOGAN, defendants. AMADEO
HANGDAAN, defendant-appellant.
The Solicitor General for plaintiff-appellee.
Public Attorneys Office for defendant-appellant.
PADILLA, J.:p
In Criminal Case No. 653 of the Regional Trial
Court of Lagawe, Ifugao, Branch 14, * the
accused-appellant Amadeo Hangdaan was
convicted for the rape of Jocelyn Binoy, a 15
year old girl. His co-accused Romel Ballogan
was not arraigned and tried as he remains at
large. Hangdaan was sentenced to reclusion
perpetua and to indemnify the victim in the
amount of P30,000.00.1 He has appealed the
decision, contending that the trial court erred in
finding and concluding that he is guilty beyond
reasonable doubt of the crime charged.
During the trial of the case, the prosecution
established the following facts:2
That in the evening of November 12, 1986, one
Jocelyn Binoy, a 15 years old student of the
ISCAF, Nayon, Ifugao, went to attend a program
at the Convention Hall Building of said
Institution. After the program, said Jocelyn Binoy
went to the girls' dormitory where she boards.
However, before entering the dorm, she went to
the toilet for necessity. As she sat to delicate,
(sic) two boys, who were later Identified as
Romel Ballogan and Amadeo Hangdaan,
entered the comfort room and both Romel
Ballogan and Amadeo Hangdaan grabbed
Jocelyn and pushed her to the wall with Romel
poking a knife at her side. That Jocelyn shouted
but her mouth was covered and was threatened
with bodily harm if she does not keep quiet. That
as Jocelyn was pushed with her back to the wall
of the toilet, her panty was roughly removed and
Romel Ballogan, whose zipper was already
opened tried to insert his penis inside the organ
of Jocelyn who was crying with pain. That
Romel's penis was not able to penetrate
Jocelyn's vagina as they were in standing
position.
Evidence for the prosecution further show that
when Romel could not penetrate despite several
attempts, the light went off inside the toilet. So
the two boys dragged Jocelyn to a hut across
the river some 150 meters away from the toilet
and there she was undressed and pushed down
on the floor. That Romel went on top of Jocelyn
and succeeded in raping her. That Jocelyn tried
to resist but was weak and the knife was
constantly poked at her side. That after Romel
Ballogan, the accused who is at large in this
case, finished having sexual intercourse with
Jocelyn, Amadeo Hangdaan also went on top of
Jocelyn and tried to insert his penis but could
not penetrate her as his penis was too big. So
Amadeo mashed the nipples and breast of
Jocelyn. After that, Amadeo stood up and again
Romel went on top of Jocelyn for the second
time and again succeeded in having sexual
intercourse with Jocelyn. After Romel was
through with his second intercourse with
Jocelyn, Amadeo again went on top of Jocelyn
and tried to penetrate her but could not put his
penis inside so he contended himself by
mashing the breast of Jocelyn. After Amadeo
stood up, Romel again went on top Jocelyn and
for the third time had intercourse with her. Then
again after Romel, Amadeo tried but simply
could not put in his penis and just mashed the
breast of Jocelyn.
Finally, it is the evidence of the prosecution that
after Romel Ballogan succeeded in raping
Jocelyn three times and also three unsuccessful
penetrations on the part of Amadeo Hangdaan,
the two men allowed their victim to go home with
the warning that if she tells anyone they will do
her harm. That Jocelyn Binoy went dizzily and
with pains all over her body to the dormitory and
knocked and the door was opened by Rosa
Albino and Jocelyn while crying told her what
happened to her and she was asked to go to
sleep until the following morning. The following
morning, Rosa and the principal confronted
Jocelyn who related what happened to her and
thereafter the matter was reported to the police
authorities of Lamut, Ifugao. The police went
after the accused but only Amadeo Hangdaan
was arrested and Identified by the victim while
Romel Ballogan, remained at large.
The defense, on the other hand, denied
participation by the accused Hangdaan in the
crime charged and gave Hangdaan's own
exculpatory version of the incident, as follows:3
That on November 12, 1986, accused was at
their house at Bolog, Kiangan Ifugao. That after
4:00 o'clock in the afternoon Amadeo
Hangdaan, co-accused in this case, proceeded
to Nayon and dropped at the Robles store where
he met Romel Ballogan, the other accused in
this case and one Eugenio Mangag who were
drinking gin at the Calimlim's store. That the two
offered Amadeo a drink and he took a shot.
Then after an hour, the three transferred to
another store where they took some more
drinks. While drinking, Romel and Eugenio had
a scuffle with the security guard and thereafter,
the three run (sic) away. Later, Amadeo
proceeded to the program at Nayon, Lamut
where again he met Romel Ballogan. After an
hour, Amadeo thought of going home. Moments
later, Amadeo met Ricardo Namingit and
borrowed his flashlight. Then Amadeo after
borrowing the flashlight from Ricardo went back
to the program and there he met again Romel
who insisted on borrowing the flashlight from
Amadeo to look for a Batangas knife that he
dropped and so Amadeo gave the flashlight.
Moments later, Amadeo Hangdaan met Ricardo
and he asked for his flashlight but Amadeo told
Ricardo that he will look for Romel Ballogan and
get back the flashlight. Amadeo then went to the
school where the program was held but Romel
was not there; then we went to the dorm but
failed to find Romel there. So Amadeo went to
the small hut beyond the river and there he saw
Romel lying on top of a girl who was crying
softly. The girl asked Amadeo (sic) help but
Amadeo did nothing. Then Amadeo got the
flashlight as (sic) he borrowed and told Romel
that he is returning it to Ricardo. Thereafter,
Amadeo left for home. The following morning, he
was apprehended by Lt. Brawner, the Station
Commander of the INP of Lamut, Ifugao.
The trial court however, gave credence to the
prosecution's evidence and convicted the
accused Amadeo Hangdaan for the crime of
rape.4 Whereupon, the accused interposed the
present appeal, with denial as his only defense.
After a careful review of the records and the
evidence, we find no cogent reason to disturb
the judgment of the trial court which found the
appellant's denial devoid of truth and the
appellant guilty beyond reasonable doubt.
As aptly observed by the People, the accused-
appellant's defense leaves much to be desired.
He admits that he was at the scene of the crime
and there saw his co-accused, Romel Ballogan,
lying on top of a girl who was crying softly. He
also admits that the girl asked his help but he
did nothing except to get back a flashlight from
Romel and then left for home after telling Romel
that he was returning the flashlight to Ricardo.
Although appellant admitted his presence at the
scene of the incident with a hint that it was his
co-accused Romel Ballogan who raped the
victim, he, however, vehemently denies having
participated in the commission thereof.
He attempts to bolster such denial by pointing
out that unlike his co-accused Romel Ballogan,
who fled and remains at large, he did not hide,
thereby showing that he is innocent of the crime
charged.5
Appellant's pretended innocence is clearly non-
sequitur to his decision not to flee. Apart from
the fact that there is no case law holding that
non-flight is conclusive proof of innocence, the
argument does not hold weight in the light of the
positive identification of the appellant by the
victim as one of two (2) men who abused her.6
The material factor here is that there is positive
Identification of the accused as the author or,
more accurately, co-author of the crime.7
The accused-appellant further advances the
argument that since it is probable that the sperm
found in the victim's vagina came from one or
more persons, it is also probable that only one
person raped the victim and that the offender or
culprit was only Romel Ballogan. The appellant
appears to be stretching his argument too far.
We agree with the People when it says that the
fact that the sperm found in the vagina of the
victim may have come from one person is not
conclusive that it was only Romel Ballogan who
raped the victim. Neither does such medical
finding rule out the participation of the appellant
in the commission of the crime.8
It must be pointed out that in the crime of rape,
the important consideration is penetration and
not emission. The absence of spermatozoa in
the victim's vagina or thereabouts does not
necessarily negate the commission of rape.9In
fact, with or without the medical findings, a
conviction would still be proper in the case at bar
given the positive identification of the accused-
appellant by the victim, while medical
examination is not an indispensable element in
rape cases.10
One other aspect of this case has to be dealt
with. It appears from the evidence that accused-
appellant was unable to introduce his private
part into the victim's vagina. Was there
consummated rape? There was. The unrebutted
evidence for the prosecution positively
implicates accused Hangdaan as having made
several efforts to penetrate the victim's vagina.
The victim testified:11
xxx xxx xxx
Q And after the accused had forcible intercourse
with you, what happened next?
A The other one took over.
Q Whom are you referring to?
A That man in blue. (Witness pointing to
Amadeo Hangdaan)
Q And what did this Amadeo Hangdaan do to
you?
A He also came over me and tried to insert his
penis to my vagina but each time he tried to do
that, it could not go inside so he started mashing
my breasts.
COURT: (to the witness)
Q Madam witness, do not cry. I will ask you this
question. Although his penis was not able to
penetrate your vagina, you are sure that his
penis touched your vagina?
A Yes, but it did not penetrate.
xxx xxx xxx
Q After this first accused has carnal knowledge
of you for the second time, what else transpired?
A After that the other one took over again and
went on top of me and at the same time mashed
my breasts.
Q Did he have sexual intercourse with you for
the second time?
A He tried but again his penis could not go
inside it was too big.
Q And after this accused Amadeo Hangdaan
played with your breasts, what else transpired?
A After that they permitted me to go home.
Q When this Amadeo Hangdaan was mashing
your breasts for the first time, did you feel his
penis inside your vagina?
A It was on my vagina it could not go inside
because it was too big and so he could not do it
but mashed my breasts.
COURT:
Q But did it touch your vagina?
A Yes, sir.
xxx xxx xxx
Such testimony of the victim, which was given
credence by the trial court, suffices to support
the conclusion that the accused Hangdaan
committed the crime of rape. The fact that the
accused repeatedly tried, but in vain, to
introduce his big penis into the victim's vagina
leaves no doubt whatever as to the
consummation of the crime. For it is settled rule
that for rape to be consummated, it is not
essential that there be perfect, complete and full
penetration of the vagina. Mere entry of the labia
or lips of the female organ without rupture of the
hymen or laceration of the vagina, is sufficient to
warrant conviction for consummated rape.12
It is enough that there be proof of entrance of
the male organ lips the labia of the pudendum,
or lips of the female organ. The sligtest
penetration is sufficient to consummate the
rape.13
Finally, as this Court has repeatedly ruled, when
the victim says that she has been raped, she
says in effect all that is necessary to show that
rape has been committed, and if her testimony
meets the test of credibility, the accused may be
convicted on the basis thereof.14
In sum, what the appellant's defense really boils
down to is that he has greater credibility than the
victim. In this regard, this Court has ruled:
... on the question of the credence to which of
the conflicting versions of the prosecution and
defense are entitled, the answer given by the
trial court is generally viewed as correct and
entitled to the highest respect.15
It is the policy of this Court to defer to the factual
findings of the trial judge, who has the
advantage of directly observing the witnesses in
the stand and to determine by their demeanor
whether they are telling or distoring the truth ...
In rape cases especially, much credence is
accorded the testimony of the complaining
witness, on the theory that she will not choose to
accuse her attacker at all and subject herself to
the stigma and indignities her accusation will
entail unless she is telling the truth.16
WHEREFORE, the judgment appealed from is
AFFIRMED in all respects. Costs against the
accused-appellant.
SO ORDERED.
Melencio-Herrera (Chairperson), Paras and
Regalado, JJ., concur.
Sarmiento, J., is on leave.
EN BANC
ARISTOTEL VALENZUELA y G. R. No. 160188
NATIVIDAD,
Petitioner, Present:
PUNO, C.J.,
QUISUMBING,
SANTIAGO,
- versus - GUTIERREZ,
C
A
R
 P theft is susceptible to commission under the
I Revised Penal Code.
O
, I.
MARTINEZ,
CORONA,
CARPIO MORALES,
AZCUNA,
TINGA,
CHICO-NAZARIO,
GARCIA,
VELASCO, and
PEOPLE OF THE PHILIPPINES NACHURA, JJ.
and HON. COURT OF APPEALS,
Respondents.
Promulgated:
June 21, 2007
x---------------------------------------------------------------
-------------x
DECISION
TINGA, J.:
This case aims for prime space in the firmament
of our criminal law jurisprudence. Petitioner
effectively concedes having performed the
felonious acts imputed against him, but instead
insists that as a result, he should be adjudged
guilty of frustrated theft only, not the felony in its
consummated stage of which he was convicted.
The proposition rests on a common theory
expounded in two well-known decisions[1]
rendered decades ago by the Court of Appeals,
upholding the existence of frustrated theft of
which the accused in both cases were found
guilty. However, the rationale behind the rulings
has never been affirmed by this Court.
As far as can be told,[2] the last time this Court
extensively considered whether an accused was
guilty of frustrated or consummated theft was in
1918, in People v. Adiao.[3] A more cursory
treatment of the question was followed in 1929,
in People v. Sobrevilla,[4] and in 1984, in Empelis
v. IAC.[5] This petition now gives occasion for us
to finally and fully measure if or how frustrated
The basic facts are no longer disputed before
us. The case stems from an Information[6]
charging petitioner Aristotel Valenzuela
(petitioner) and Jovy Calderon (Calderon) with
the crime of theft. On 19 May 1994, at around
4:30 p.m., petitioner and Calderon were sighted
outside the Super Sale Club, a supermarket
within the ShoeMart (SM) complex along North
EDSA, by Lorenzo Lago (Lago), a security guard
who was then manning his post at the open
parking area of the supermarket. Lago saw
petitioner, who was wearing an identification
card with the mark Receiving Dispatching Unit
(RDU), hauling a push cart with cases of
detergent of the well-known Tide brand.
Petitioner unloaded these cases in an open
parking space, where Calderon was waiting.
Petitioner then returned inside the supermarket,
and after five (5) minutes, emerged with more
cartons of Tide Ultramatic and again unloaded
these boxes to the same area in the open
parking space.[7]
Thereafter, petitioner left the parking area and
haled a taxi. He boarded the cab and directed it
towards the parking space where Calderon was
waiting. Calderon loaded the cartons of Tide
Ultramatic inside the taxi, then boarded the
vehicle. All these acts were eyed by Lago, who
proceeded to stop the taxi as it was leaving the
open parking area. When Lago asked petitioner
for a receipt of the merchandise, petitioner and
Calderon reacted by fleeing on foot, but Lago
fired a warning shot to alert his fellow security
guards of the incident. Petitioner and Calderon
were apprehended at the scene, and the stolen
merchandise recovered.[8] The filched items
seized from the duo were four (4) cases of Tide
Ultramatic, one (1) case of Ultra 25 grams, and
three (3) additional cases of detergent, the
goods with an aggregate value of P12,090.00.[9]
Petitioner and Calderon were first brought to the
SM security office before they were transferred
on the same day to the Baler Station II of the
Philippine National Police, Quezon City, for
investigation. It appears from the police
investigation records that apart from petitioner
and Calderon, four (4) other persons were
apprehended by the security guards at the
scene and delivered to police custody at the
Baler PNP Station in connection with the
incident. However, after the matter was referred
to the Office of the Quezon City Prosecutor, only
petitioner and Calderon were charged with theft
by the Assistant City Prosecutor, in Informations
prepared on 20 May 1994, the day after the
incident.[10]
After pleading not guilty on arraignment, at the
trial, petitioner and Calderon both claimed
having been innocent bystanders within the
vicinity of the Super Sale Club on the afternoon
of 19 May 1994 when they were haled by Lago
and his fellow security guards after a commotion
and brought to the Baler PNP Station. Calderon
alleged that on the afternoon of the incident, he
was at the Super Sale Club to withdraw from his
ATM account, accompanied by his neighbor,
Leoncio Rosulada.[11] As the queue for the ATM
was long, Calderon and Rosulada decided to
buy snacks inside the supermarket. It was while
they were eating that they heard the gunshot
fired by Lago, leading them to head out of the
building to check what was
transpiring. As they were outside, they were
suddenly grabbed by a security guard, thus
commencing their detention.[12] Meanwhile,
petitioner testified during trial that he and his
cousin, a Gregorio Valenzuela,[13] had been at
the parking lot, walking beside the nearby BLISS
complex and headed to ride a tricycle going to
Pag-asa, when they saw the security guard
Lago fire a shot. The gunshot caused him and
the other people at the scene to start running, at
which point he was apprehended by Lago and
brought to the security office. Petitioner claimed
he was detained at the security office until
around 9:00 p.m., at which time he and the
others were brought to the Baler Police Station.
At the station, petitioner denied having stolen
the cartons of detergent, but he was detained
overnight, and eventually brought to the
prosecutors office where he was charged with
theft.[14] During petitioners cross-examination, he
admitted that he had been employed as a
bundler of GMS Marketing, assigned at the
supermarket though not at SM.[15]
In a Decision[16] promulgated on 1 February
2000, the Regional Trial Court (RTC) of Quezon
City, Branch 90, convicted both petitioner and
Calderon of the crime of consummated theft.
They were sentenced to an indeterminate prison
term of two (2) years of prision correccional as
minimum to seven (7) years of prision mayor as
maximum.[17] The RTC found credible the
testimonies of the prosecution witnesses and
established the convictions on the positive
identification of the accused as perpetrators of
the crime.
Both accused filed their respective Notices of
Appeal,[18] but only petitioner filed a brief[19] with
the Court of Appeals, causing the appellate
court to deem Calderons appeal as abandoned
and consequently dismissed. Before the Court of
Appeals, petitioner argued that he should only
be convicted of frustrated theft since at the time
he was apprehended, he was never placed in a
position to freely dispose of the articles stolen.[20]
However, in its Decision dated 19 June 2003,[21]
the Court of Appeals rejected this contention
and affirmed petitioners conviction.[22] Hence the
present Petition for Review,[23] which expressly
seeks that petitioners conviction be modified to
only of Frustrated Theft.[24]
Even in his appeal before the Court of Appeals,
petitioner effectively conceded both his felonious
intent and his actual participation in the theft of
several cases of detergent with a total value of
P12,090.00 of which he was charged.[25] As
such, there is no cause for the Court to consider
a factual scenario other than that presented by
the prosecution, as affirmed by the RTC and the
Court of Appeals. The only question to consider
is whether under the given facts, the theft should
be deemed as consummated or merely
frustrated.
II.
In arguing that he should only be convicted of
frustrated theft, petitioner cites[26] two decisions
rendered many years ago by the Court of
Appeals: People v. Dio[27] and People v.
Flores.[28] Both decisions elicit the interest of this
Court, as they modified trial court convictions
from consummated to frustrated theft and
involve a factual milieu that bears similarity to
the present case. Petitioner invoked the same
rulings in his appeal to the Court of Appeals, yet
the appellate court did not expressly consider
the import of the rulings when it affirmed the
conviction.
It is not necessary to fault the Court of Appeals
for giving short shrift to the Dio and Flores
rulings since they have not yet been expressly
adopted as precedents by this Court. For
whatever reasons,
the occasion to define or debunk the crime of
frustrated theft has not come to pass before us.
Yet despite the silence on our part, Dio and
Flores have attained a level of renown reached
by very few other appellate court rulings. They
are comprehensively discussed in the most
popular of our criminal law annotations,[29] and
studied in criminal law classes as textbook
examples of frustrated crimes or even as
definitive of frustrated theft.
More critically, the factual milieu in those cases
is hardly akin to the fanciful scenarios that
populate criminal law exams more than they
actually occur in real life. Indeed, if we finally say
that Dio and Flores are doctrinal, such
conclusion could profoundly influence a
multitude of routine theft prosecutions, including
commonplace shoplifting. Any scenario that
involves the thief having to exit with the stolen
property through a supervised egress, such as a
supermarket checkout counter or a parking area
pay booth, may easily call for the application of
Dio and Flores. The fact that lower courts have
not hesitated to lay down convictions for
frustrated theft further validates that Dio and
Flores and the theories offered therein on
frustrated theft have borne some weight in our
jurisprudential system. The time is thus ripe for
us to examine whether those theories are
correct and should continue to influence
prosecutors and judges in the future.
III.
To delve into any extended analysis of Dio and
Flores, as well as the specific issues relative to
frustrated theft, it is necessary to first refer to the
basic rules on the three stages of crimes under
our Revised Penal Code.[30]
Article 6 defines those three stages, namely the
consummated, frustrated and attempted
felonies. A felony is consummated when all the
elements necessary for its execution and
accomplishment are present. It is frustrated
when the offender performs all the acts of
execution which would produce the felony as a
consequence but which, nevertheless, do not
produce it by reason of causes independent of
the will of the perpetrator. Finally, it is attempted
when the offender commences the commission
of a felony directly by overt acts, and does not
perform all the acts of execution which should
produce the felony by reason of some cause or
accident other than his own spontaneous
desistance.
Each felony under the Revised Penal Code has
a subjective phase, or that portion of the acts
constituting the crime included between the act
which begins the commission of the crime and
the last act performed by the offender which,
with prior acts, should result in the
consummated crime.[31] After that point has been
breached, the subjective phase ends and the
objective phase begins.[32] It has been held that
if the offender never passes the subjective
phase of the offense, the crime is merely
attempted.[33] On the other hand, the subjective
phase is completely passed in case of frustrated
crimes, for in such instances, [s]ubjectively the
crime is complete.[34]
Truly, an easy distinction lies between
consummated and frustrated felonies on one
hand, and attempted felonies on the other. So
long as the offender fails to complete all the acts
of execution despite commencing the
commission of a felony, the crime is undoubtedly
in the attempted stage. Since the specific acts of
execution that define each crime under the
Revised Penal Code are generally enumerated
in the code itself, the task of ascertaining
whether a crime is attempted only would need to
compare the acts actually performed by the
accused as against the acts that constitute the
felony under the Revised Penal Code.
In contrast, the determination of whether a crime
is frustrated or consummated necessitates an
initial concession that all of the acts of execution
have been performed by the offender. The
critical distinction instead is whether the felony
itself was actually produced by the acts of
execution. The determination of whether the
felony was produced after all the acts of
execution had been performed hinges on the
particular statutory definition of the felony. It is
the statutory definition that generally furnishes
the elements of each crime under the Revised
Penal Code, while the elements in turn unravel
the particular requisite acts of execution and
accompanying criminal intent.
The long-standing Latin maxim actus non facit
reum, nisi mens sit rea supplies an important
characteristic of a crime, that ordinarily, evil
intent must unite with an unlawful act for there to
be a crime, and accordingly, there can be no
crime when the criminal mind is wanting.[35]
Accepted in this jurisdiction as material in crimes
mala in se,[36] mens rea has been defined before
as a guilty mind, a guilty or wrongful purpose or
criminal intent,[37] and essential for criminal
liability.[38] It follows that the statutory definition
of our mala in se crimes must be able to supply
what the mens rea of the crime is, and indeed
the U.S. Supreme Court has comfortably held
that a criminal law that contains no mens rea
requirement infringes on constitutionally
protected rights.[39] The criminal statute must
also provide for the overt acts that constitute the
crime. For a crime to exist in our legal law, it is
not enough that mens rea be shown; there must
also be an actus reus.[40]
It is from the actus reus and the mens rea, as
they find expression in the criminal statute, that
the felony is produced. As a postulate in the
craftsmanship of constitutionally sound laws, it is
extremely preferable that the language of the
law expressly provide when the felony is
produced. Without such provision, disputes
would inevitably ensue on the elemental
question whether or not a crime was committed,
thereby presaging the undesirable and legally
dubious set-up under which the judiciary is
assigned the legislative role of defining crimes.
Fortunately, our Revised Penal Code does not
suffer from such infirmity. From the statutory
definition of any felony, a decisive passage or
term is embedded which attests when the felony
isproduced by the acts of execution. For
example, the statutory definition of murder or
homicide expressly uses the phrase shall kill
another, thus making it clear that the felony is
produced by the death of the victim, and
conversely, it is not produced if the victim
survives.
We next turn to the statutory definition of theft.
Under Article 308 of the Revised Penal Code, its
elements are spelled out as follows:
Art. 308. Who are liable for theft. Theft is
committed by any person who, with intent to
gain but without violence against or intimidation
of persons nor force upon things, shall take
personal property of another without the latters
consent.
Theft is likewise committed by:
1. Any person who, having found lost property,
shall fail to deliver the same to the local
authorities or to its owner;
2. Any person who, after having maliciously
damaged the property of another, shall remove
or make use of the fruits or object of the damage
caused by him; and
3. Any person who shall enter an inclosed estate
or a field where trespass is forbidden or which
belongs to another and without the consent of its
owner, shall hunt or fish upon the same or shall
gather cereals, or other forest or farm products.
Article 308 provides for a general definition of
theft, and three alternative and highly
idiosyncratic means by which theft may be
committed.[41] In the present discussion, we
need to concern ourselves only with the general
definition since it was under it that the
prosecution of the accused was undertaken and
sustained. On the face of the definition, there is
only one operative act of execution by the actor
involved in theft the taking of personal
property of another. It is also clear from the
provision that in order that such taking may be
qualified as theft, there must further be present
the descriptive circumstances that the taking
was with intent to gain; without force upon things
or violence against or intimidation of persons;
and it was without the consent of the owner of
the property.
Indeed, we have long recognized the following
elements of theft as provided for in Article 308 of
the Revised Penal Code, namely: (1) that there
be taking of personal property; (2) that said
property belongs to another; (3) that the taking
be done with intent to gain; (4) that the taking be
done without the consent of the owner; and (5)
that the taking be accomplished without the use
of violence against or intimidation of persons or
force upon things.[42]
In his commentaries, Judge Guevarra traces the
history of the definition of theft, which under
early Roman law as defined by Gaius, was so
broad enough as to encompass any kind of
physical handling of property belonging to
another against the will of the owner,[43] a
definition similar to that by Paulus that a thief
handles (touches, moves) the property of
another.[44] However, with the Institutes of
Justinian, the idea had taken hold that more
than mere physical handling, there must further
be an intent of acquiring gain from the object,
thus: [f]urtum est contrectatio rei fraudulosa,
lucri faciendi causa vel ipsius rei, vel etiam usus
ejus possessinisve.[45] This requirement of animo
lucrandi, or intent to gain, was maintained in
both the Spanish and Filipino penal laws, even
as it has since been abandoned in Great
Britain.[46]
In Spanish law, animo lucrandi was
compounded with apoderamiento, or unlawful
taking, to characterize theft. Justice Regalado
notes that the concept of apoderamiento once
had a controversial interpretation and
application. Spanish law had already discounted
the belief that mere physical taking was
constitutive of apoderamiento, finding that it had
to be coupled with the intent to appropriate the
object in order to constitute apoderamiento; and
to appropriate means to deprive the lawful
owner of the thing.[47] However, a conflicting line
of cases decided by the Court of Appeals ruled,
alternatively, that there must be permanency in
the taking[48] or an intent to permanently deprive
the owner of the stolen property;[49] or that there
was no need for permanency in the taking or in
its intent, as the mere temporary possession by
the offender or disturbance of the proprietary
rights of the owner already constituted
apoderamiento.[50] Ultimately, as Justice
Regalado notes, the Court adopted the latter
thought that there was no need of an intent to
permanently deprive the owner of his property to
constitute an unlawful taking.[51]
So long as the descriptive circumstances that
qualify the taking are present, including animo
lucrandi and apoderamiento, the completion of
the operative act that is the taking of personal
property of another establishes, at least, that the
transgression went beyond the attempted stage.
As applied to the present case, the moment
petitioner obtained physical possession of the
cases of detergent and loaded them in the
pushcart, such seizure motivated by intent to
gain, completed without need to inflict violence
or intimidation against persons nor force upon
things, and accomplished without the consent of
the SM Super Sales Club, petitioner forfeited the
extenuating benefit a conviction for only
attempted theft would have afforded him.
On the critical question of whether it was
consummated or frustrated theft, we are obliged
to apply Article 6 of the Revised Penal Code to
ascertain the answer. Following that provision,
the theft would have been frustrated only, once
the acts committed by petitioner, if ordinarily
sufficient to produce theft as a consequence, do
not produce [such theft] by reason of causes
independent of the will of the perpetrator. There
are clearly two determinative factors to consider:
that the felony is not produced, and that such
failure is due to causes independent of the will of
the perpetrator. The second factor ultimately
depends on the evidence at hand in each
particular case. The first, however, relies
primarily on a doctrinal definition attaching to the
individual felonies in the Revised Penal Code[52]
as to when a particular felony is not produced,
despite the commission of all the acts of
execution.
So, in order to ascertain whether the theft is
consummated or frustrated, it is necessary to
inquire as to how exactly is the felony of theft
produced. 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.
U.S. v. Adiao[53] apparently supports that notion.
Therein, a customs inspector was charged with
theft after he abstracted a leather belt from the
baggage of a foreign national and secreted the
item in his desk at the Custom House. At no
time was the accused able to get the
merchandise out of the Custom House, and it
appears that he was under observation during
the entire transaction.[54] Based apparently on
those two circumstances, the trial court had
found him guilty, instead, of frustrated theft. The
Court reversed, saying that neither circumstance
was decisive, and holding instead that the
accused was guilty of consummated theft,
finding that all the elements of the completed
crime of theft are present.[55] In support of its
conclusion that the theft was consummated, the
Court cited three (3) decisions of the Supreme
Court of Spain, the discussion of which we
replicate below:
The defendant was charged with the theft of
some fruit from the land of another. As he was in
the act of taking the fruit[,] he was seen by a
policeman, yet it did not appear that he was at
that moment caught by the policeman but
sometime later. The court said: "[x x x] The trial
court did not err [x x x ] in considering the crime
as that of consummated theft instead of
frustrated theft inasmuch as nothing appears in
the record showing that the policemen who saw
the accused take the fruit from the adjoining land
arrested him in the act and thus prevented him
from taking full possession of the thing stolen
and even its utilization by him for an interval of
time." (Decision of the Supreme Court of Spain,
October 14, 1898.)
Defendant picked the pocket of the offended
party while the latter was hearing mass in a
church. The latter on account of the solemnity of
the act, although noticing the theft, did not do
anything to prevent it. Subsequently, however,
while the defendant was still inside the church,
the offended party got back the money from the
defendant. The court said that the defendant
had performed all the acts of execution and
considered the theft as consummated. (Decision
of the Supreme Court of Spain, December 1,
1897.)
The defendant penetrated into a room of a
certain house and by means of a key opened up
a case, and from the case took a small box,
which was also opened with a key, from which in
turn he took a purse containing 461 reales and
20 centimos, and then he placed the money
over the cover of the case; just at this moment
he was caught by two guards who were
stationed in another room near-by. The court
considered this as consummated robbery, and
said: "[x x x] The accused [x x x] having
materially taken possession of the money from
the moment he took it from the place where it
had been, and having taken it with his hands
with intent to appropriate the same, he executed
all the acts necessary to constitute the crime
which was thereby produced; only the act of
making use of the thing having been frustrated,
which, however, does not go to make the
elements of the consummated crime." (Decision
of the Supreme Court of Spain, June 13,
1882.)[56]
It is clear from the facts of Adiao itself, and the
three (3) Spanish decisions cited therein, that
the criminal actors in all these cases had been
able to obtain full possession of the personal
property prior to their apprehension. The interval
between the commission of the acts of theft and
the apprehension of the thieves did vary, from
sometime later in the 1898 decision; to the very
moment the thief had just extracted the money
in a purse which had been stored as it was in
the 1882 decision; and before the thief had been
able to spirit the item stolen from the building
where the theft took place, as had happened in
Adiao and the 1897 decision. Still, such intervals
proved of no consequence in those cases, as it
was ruled that the thefts in each of those cases
was consummated by the actual possession of
the property belonging to another.
In 1929, the Court was again confronted by a
claim that an accused was guilty only of
frustrated rather than consummated theft. The
case is People v. Sobrevilla,[57] where the
accused, while in the midst of a crowd in a
public market, was already able to abstract a
pocketbook from the trousers of the victim when
the latter, perceiving the theft, caught hold of the
[accused]s shirt-front, at the same time shouting
for a policeman; after a struggle, he recovered
his pocket-book and let go of the defendant, who
was afterwards caught by a policeman.[58] In
rejecting the contention that only frustrated theft
was established, the Court simply said, without
further comment or elaboration:
We believe that such a contention is groundless.
The [accused] succeeded in taking the pocket-
book, and that determines the crime of theft. If
the pocket-book was afterwards recovered, such
recovery does not affect the [accuseds] criminal
liability, which arose from the [accused] having
succeeded in taking the pocket-book.[59]
If anything, Sobrevilla is consistent with Adiao
and the Spanish Supreme Court cases cited in
the latter, in that the fact that the offender was
able to succeed in obtaining physical possession
of the stolen item, no matter how momentary,
was able to consummate the theft.
Adiao, Sobrevilla and the Spanish Supreme
Court decisions cited therein contradict the
position of petitioner in this case. Yet to simply
affirm without further comment would be
disingenuous, as there is another school of
thought on when theft is consummated, as
reflected in the Dio and Flores decisions.
Dio was decided by the Court of Appeals in
1949, some 31 years after Adiao and 15 years
before Flores. The accused therein, a driver
employed by the United States Army, had driven
his truck into the port area of the South Harbor,
to unload a truckload of materials to waiting U.S.
Army personnel. After he had finished
unloading, accused drove away his truck from
the Port, but as he was approaching a
checkpoint of the Military Police, he was stopped
by an M.P. who inspected the truck and found
therein three boxes of army rifles. The accused
later contended that he had been stopped by
four men who had loaded the boxes with the
agreement that they were to meet him and
retrieve the rifles after he had passed the
checkpoint. The trial court convicted accused of
consummated theft, but the Court of Appeals
modified the conviction, holding instead that only
frustrated theft had been committed.
In doing so, the appellate court pointed out that
the evident intent of the accused was to let the
boxes of rifles pass through the checkpoint,
perhaps in the belief that as the truck had
already unloaded its cargo inside the depot, it
would be allowed to pass through the check
point without further investigation or checking.[60]
This point was deemed material and indicative
that the theft had not been fully produced, for the
Court of Appeals pronounced that the fact
determinative of consummation is the ability of
the thief to dispose freely of the articles stolen,
even if it were more or less momentary.[61]
Support for this proposition was drawn from a
decision of the Supreme Court of Spain dated
24 January 1888 (1888 decision), which was
quoted as follows:
Considerando que para que el apoderamiento
de la cosa sustraida sea determinate de la
consumacion del delito de hurto es preciso que
so haga en circunstancias tales que permitan al
sustractor la libre disposicion de aquella,
siquiera sea mas o menos momentaneamente,
pues de otra suerte, dado el concepto del delito
de hurto, no puede decirse en realidad que se
haya producido en toda su extension, sin
materializar demasiado el acto de tomar la cosa
ajena.[62]
Integrating these considerations, the Court of
Appeals then concluded:
This court is of the opinion that in the case at
bar, in order to make the booty subject to the
control and disposal of the culprits, the articles
stolen must first be passed through the M.P.
check point, but since the offense was
opportunely discovered and the articles seized
after all the acts of execution had been
performed, but before the loot came under the
final control and disposal of the looters, the
offense can not be said to have been fully
consummated, as it was frustrated by the timely
intervention of the guard. The offense
committed, therefore, is that of frustrated theft.[63]
Dio thus laid down the theory that the ability of
the actor to freely dispose of the items stolen at
the time of apprehension is determinative as to
whether the theft is consummated or frustrated.
This theory was applied again by the Court of
Appeals some 15 years later, in Flores, a case
which according to the division of the court that
decided it, bore no substantial variance between
the circumstances [herein] and in [Dio].[64] Such
conclusion is borne out by the facts in Flores.
The accused therein, a checker employed by the
Luzon Stevedoring Company, issued a delivery
receipt for one empty sea van to the truck driver
who had loaded the purportedly empty sea van
onto his truck at the terminal of the stevedoring
company. The truck driver proceeded to show
the delivery receipt to the guard on duty at the
gate of the terminal. However, the guards
insisted on inspecting the van, and discovered
that the empty sea van had actually contained
other merchandise as well.[65] The accused was
prosecuted for theft qualified by abuse of
confidence, and found himself convicted of the
consummated crime. Before the Court of
Appeals, accused argued in the alternative that
he was guilty only of attempted theft, but the
appellate court pointed out that there was no
intervening act of spontaneous desistance on
the part of the accused that literally frustrated
the theft. However, the Court of Appeals,
explicitly relying on Dio, did find that the accused
was guilty only of frustrated, and not
consummated, theft.
As noted earlier, the appellate court admitted it
found no substantial variance between Dio and
Flores then before it. The prosecution in Flores
had sought to distinguish that case from Dio,
citing a traditional ruling which unfortunately was
not identified in the decision itself. However, the
Court of Appeals pointed out that the said
traditional ruling was qualified by the words is
placed in a situation where [the actor] could
dispose of its contents at once.[66] Pouncing on
this qualification, the appellate court noted that
[o]bviously, while the truck and the van were still
within the compound, the petitioner could not
have disposed of the goods at once. At the
same time, the Court of Appeals conceded that
[t]his is entirely different from the case where a
much less bulk and more common thing as
money was the object of the crime, where
freedom to dispose of or make use of it is
palpably less restricted,[67] though no further
qualification was offered what the effect would
have been had that alternative circumstance
been present instead.
Synthesis of the Dio and Flores rulings is in
order. The determinative characteristic as to
whether the crime of theft was produced is the
ability of the actor to freely dispose of the
articles stolen, even if it were only momentary.
Such conclusion was drawn from an 1888
decision of the Supreme Court of Spain which
had pronounced that in determining whether
theft had been consummated, es preciso que so
haga en circunstancias tales que permitan al
sustractor de aquella, siquiera sea mas o menos
momentaneamente. The qualifier siquiera sea
mas o menos momentaneamente proves
another important consideration, as it implies
that if the actor was in a capacity to freely
dispose of the stolen items before apprehension,
then the theft could be deemed consummated.
Such circumstance was not present in either Dio
or Flores, as the stolen items in both cases were
retrieved from the actor before they could be
physically extracted from the guarded
compounds from which the items were filched.
However, as implied in Flores, the character of
the item stolen could lead to a different
conclusion as to whether there could have been
free disposition, as in the case where the chattel
involved was of much less bulk and more
common x x x, [such] as money x x x.[68]
In his commentaries, Chief Justice Aquino
makes the following pointed observation on the
import of the Dio ruling:
There is a ruling of the Court of Appeals that
theft is consummated when the thief is able to
freely dispose of the stolen articles even if it
were more or less momentary. Or as stated in
another case[[69]], theft is consummated upon
the voluntary and malicious taking of property
belonging to another which is realized by the
material occupation of the thing whereby the
thief places it under his control and in such a
situation that he could dispose of it at once. This
ruling seems to have been based on Viadas
opinion that in order the theft may be
consummated, es preciso que se haga en
circumstancias x x x [[70]][71]
In the same commentaries, Chief Justice
Aquino, concluding from Adiao and other cases,
also states that [i]n theft or robbery the crime is
consummated after the accused had material
possession of the thing with intent to appropriate
the same, although his act of making use of the
thing was frustrated.[72]
There are at least two other Court of Appeals
rulings that are at seeming variance with the Dio
and Flores rulings. People v. Batoon[73] involved
an accused who filled a container with gasoline
from a petrol pump within view of a police
detective, who followed the accused onto a
passenger truck where the arrest was made.
While the trial court found the accused guilty of
frustrated qualified theft, the Court of Appeals
held that the accused was guilty of
consummated qualified theft, finding that [t]he
facts of the cases of U.S. [v.] Adiao x x x and
U.S. v. Sobrevilla x x x indicate that actual taking
with intent to gain is enough to consummate the
crime of theft.[74]
In People v. Espiritu,[75] the accused had
removed nine pieces of hospital linen from a
supply depot and loaded them onto a truck.
However, as the truck passed through the
checkpoint, the stolen items were discovered by
the Military Police running the checkpoint. Even
though those facts clearly admit to similarity with
those in Dio, the Court of Appeals held that the
accused were guilty of consummated theft, as
the accused were able to take or get hold of the
hospital linen and that the only thing that was
frustrated, which does not constitute any
element of theft, is the use or benefit that the
thieves expected from the commission of the
offense.[76]
In pointing out the distinction between Dio and
Espiritu, Reyes wryly observes that [w]hen the
meaning of an element of a felony is
controversial, there is bound to arise different
rulings as to the stage of execution of that
felony.[77] Indeed, we can discern from this
survey of jurisprudence that the state of the law
insofar as frustrated theft is concerned is
muddled. It fact, given the disputed foundational
basis of the concept of frustrated theft itself, the
question can even be asked whether there is
really such a crime in the first place.
IV.
The Court in 1984 did finally rule directly that an
accused was guilty of frustrated, and not
consummated, theft. As we undertake this
inquiry, we have to reckon with the import of this
Courts 1984 decision in Empelis v. IAC.[78]
As narrated in Empelis, the owner of a coconut
plantation had espied four (4) persons in the
premises of his plantation, in the act of gathering
and tying some coconuts. The accused were
surprised by the owner within the plantation as
they were carrying with them the coconuts they
had gathered. The accused fled the scene,
dropping the coconuts they had seized, and
were subsequently arrested after the owner
reported the incident to the police. After trial, the
accused were convicted of qualified theft, and
the issue they raised on appeal was that they
were guilty only of simple theft. The Court
affirmed that the theft was qualified, following
Article 310 of the Revised Penal Code,[79] but
further held that the accused were guilty only of
frustrated qualified theft.
It does not appear from the Empelis decision
that the issue of whether the theft was
consummated or frustrated was raised by any of
the parties. What does appear, though, is that
the disposition of that issue was contained in
only two sentences, which we reproduce in full:
However, the crime committed is only frustrated
qualified theft because petitioners were not able
to perform all the acts of execution which should
have produced the felony as a consequence.
They were not able to carry the coconuts away
from the plantation due to the timely arrival of
the owner.[80]
No legal reference or citation was offered for this
averment, whether Dio, Flores or the Spanish
authorities who may have bolstered the
conclusion. There are indeed evident problems
with this formulation in Empelis.
Empelis held that the crime was only frustrated
because the actors were not able to perform
all the acts of execution which should have
produced the felon as a consequence.[81]
However, per Article 6 of the Revised Penal
Code, the crime is frustrated when the offender
performs all the acts of execution, though not
producing the felony as a result. If the offender
was not able to perform all the acts of execution,
the crime is attempted, provided that the non-
performance was by reason of some cause or
accident other than spontaneous desistance.
Empelis concludes that the crime was
frustrated because not all of the acts of
execution were performed due to the timely
arrival of the owner. However, following Article 6
of the Revised Penal Code, these facts should
elicit the conclusion that the crime was only
attempted, especially given that the acts were
not performed because of the timely arrival of
the owner, and not because of spontaneous
desistance by the offenders.
For these reasons, we cannot attribute weight to
Empelis as we consider the present petition.
Even if the two sentences we had cited actually
aligned with the definitions provided in Article 6
of the Revised Penal Code, such passage bears
no reflection that it is the product of the
considered evaluation of the relevant legal or
jurisprudential thought. Instead, the passage is
offered as if it were sourced from an indubitable
legal premise so settled it required no further
explication.
Notably, Empelis has not since been reaffirmed
by the Court, or even cited as authority on theft.
Indeed, we cannot see how Empelis can
contribute to our present debate, except for the
bare fact that it proves that the Court had once
deliberately found an accused guilty of frustrated
theft. Even if Empelis were considered as a
precedent for frustrated theft, its doctrinal value
is extremely compromised by the erroneous
legal premises that inform it, and also by the fact
that it has not been entrenched by subsequent
reliance.
Thus, Empelis does not compel us that it is an
insurmountable given that frustrated theft is
viable in this jurisdiction. Considering the flawed
reasoning behind its conclusion of frustrated
theft, it cannot present any efficacious argument
to persuade us in this case. Insofar as Empelis
may imply that convictions for frustrated theft are
beyond cavil in this jurisdiction, that decision is
subject to reassessment.
V.
At the time our Revised Penal Code was
enacted in 1930, the 1870 Codigo Penal de
Espaa was then in place. The definition of the
crime of theft, as provided then, read as follows:
Son reos de hurto:
1. Los que con nimo de lucrarse, y sin volencia
o intimidacin en las personas ni fuerza en las
cosas, toman las cosas muebles ajenas sin la
voluntad de su dueo.
2. Los que encontrndose una cosa perdida y
sabiendo quin es su dueo se la apropriaren co
intencin de lucro.
3. Los daadores que sustrajeren o utilizaren
los frutos u objeto del dao causado, salvo los
casos previstos en los artculos 606, nm. 1.0;
607, nms, 1.0, 2.0 y 3.0; 608, nm. 1.0; 611; 613;
Segundo prrafo del 617 y 618.
It was under the ambit of the 1870 Codigo Penal
that the aforecited Spanish Supreme Court
decisions were handed down. However, the said
code would be revised again in 1932, and
several times thereafter. In fact, under the
Codigo Penal Espaol de 1995, the crime of theft
is now simply defined as [e]l que, con nimo de
lucro,
tomare las cosas muebles ajenas sin la voluntad
de su dueo ser castigado[82]
Notice that in the 1870 and 1995 definition of
theft in the penal code of Spain, la libre
disposicion of the property is not an element or a
statutory characteristic of the crime. It does
appear that the principle originated and perhaps
was fostered in the realm of Spanish
jurisprudence.
The oft-cited Salvador Viada adopted a
question-answer form in his 1926 commentaries
on the 1870 Codigo Penal de Espaa. Therein,
he raised at least three questions for the reader
whether the crime of frustrated or consummated
theft had occurred. The passage cited in Dio
was actually utilized by Viada to answer the
question whether frustrated or consummated
theft was committed [e]l que en el momento
mismo de apoderarse de la cosa ajena, vindose
sorprendido, la arroja al suelo.[83] Even as the
answer was as stated in Dio, and was indeed
derived from the 1888 decision of the Supreme
Court of Spain, that decisions factual predicate
occasioning the statement was apparently very
different from Dio, for it appears that the 1888
decision involved an accused who was surprised
by the employees of a haberdashery as he was
abstracting a layer of clothing off a mannequin,
and who then proceeded to throw away the
garment as he fled.[84]
Nonetheless, Viada does not contest the notion
of frustrated theft, and willingly recites decisions
of the Supreme Court of Spain that have held to
that effect.[85] A few decades later, the esteemed
Eugenio Cuello Caln pointed out the inconsistent
application by the Spanish Supreme Court with
respect to frustrated theft.
Hay frustracin cuando los reos fueron
sorprendidos por las guardias cuando llevaban
los sacos de harino del carro que los conducia a
otro que tenan preparado, 22 febrero 1913;
cuando el resultado no tuvo efecto por la
intervencin de la policia situada en el local
donde se realiz la sustraccin que impidi
pudieran los reos disponer de lo sustrado, 30 de
octubre 1950. Hay "por lo menos" frustracin, si
existe apoderamiento, pero el culpale no llega a
disponer de la cosa, 12 abril 1930; hay frustracin
"muy prxima" cuando el culpable es detenido
por el perjudicado acto seguido de cometer la
sustraccin, 28 febrero 1931. Algunos fallos han
considerado la existencia de frustracin cuando,
perseguido el culpable o sorprendido en el
momento de llevar los efectos hurtados, los
abandona, 29 mayo 1889, 22 febrero 1913, 11
marzo 1921; esta doctrina no es admissible,
stos, conforme a lo antes expuesto, son hurtos
consumados.[86]

Ultimately, Cuello Caln attacked the very idea
that frustrated theft is actually possible:
La doctrina hoy generalmente sustentada
considera que el hurto se consuma cuando la
cosa queda de hecho a la disposicin del agente.
Con este criterio coincide la doctrina sentada
ltimamente porla jurisprudencia espaola que
generalmente considera consumado el hurto
cuando el culpable coge o aprehende la cosa y
sta quede por tiempo ms o menos duradero bajo
su poder. El hecho de que ste pueda
aprovecharse o no de lo hurtado es indiferente.
El delito no pierde su carcter de consumado
aunque la cosa hurtada sea devuelta por el
culpable o fuere recuperada. No se concibe la
frustracin, pues es muy dificil que el que
hace cuanto es necesario para la
consumacin del hurto no lo consume
efectivamente, los raros casos que nuestra
jurisprudencia, muy vacilante, declara hurtos
frustrados son verdaderos delitos
consumados.[87] (Emphasis supplied)
Cuello Calns submissions cannot be lightly
ignored. Unlike Viada, who was content with
replicating the Spanish Supreme Court
decisions on the matter, Cuello Caln actually set
forth his own thought that questioned whether
theft could truly be frustrated, since pues es muy
dificil que el que hace cuanto es necesario para
la consumacin del hurto no lo consume
efectivamente. Otherwise put, it would be
difficult to foresee how the execution of all the
acts necessary for the completion of the crime
would not produce the effect of theft.
This divergence of opinion convinces us, at
least, that there is no weighted force in scholarly
thought that obliges us to accept frustrated theft,
as proposed in Dio and Flores. A final ruling by
the Court that there is no crime of frustrated theft
in this jurisdiction will not lead to scholastic
pariah, for such a submission is hardly heretical
in light of Cuello Calns position.
Accordingly, it would not be intellectually
disingenuous for the Court to look at the
question from a fresh perspective, as we are not
bound by the opinions of the respected Spanish
commentators, conflicting as they are, to accept
that theft is capable of commission in its
frustrated stage. Further, if we ask the question
whether there is a mandate of statute or
precedent that must compel us to adopt the Dio
and Flores doctrines, the answer has to be in
the negative. If we did so, it would arise not out
of obeisance to an inexorably higher command,
but from the exercise of the function of statutory
interpretation that comes as part and parcel of
judicial review, and a function that allows
breathing room for a variety of theorems in
competition until one is ultimately adopted by
this Court.
V.
The foremost predicate that guides us as we
explore the matter is that it lies in the province of
the legislature, through statute, to define what
constitutes a particular crime in this jurisdiction.
It is the legislature, as representatives of the
sovereign people, which determines which acts
or combination of acts are criminal in nature.
Judicial interpretation of penal laws should be
aligned with what was the evident legislative
intent, as expressed primarily in the language of
the law as it defines the crime. It is Congress,
not the courts, which is to define a crime, and
ordain its punishment.[88] The courts cannot
arrogate the power to introduce a new element
of a crime which was unintended by the
legislature, or redefine a crime in a manner that
does not hew to the statutory language. Due
respect for the prerogative of Congress in
defining crimes/felonies constrains the Court to
refrain from a broad interpretation of penal laws
where a narrow interpretation is appropriate.
The Court must take heed of language,
legislative history and purpose, in order to
strictly determine the wrath and breath of the
conduct the law forbids.[89]
With that in mind, a problem clearly emerges
with the Dio/Flores dictum. The ability of the
offender to freely dispose of the property stolen
is not a constitutive element of the crime of theft.
It finds no support or extension in Article 308,
whether as a descriptive or operative element of
theft or as the mens rea or actus reus of the
felony. To restate what this Court has repeatedly
held: the elements of the crime of theft as
provided for in Article 308 of the Revised Penal
Code are: (1) that there be taking of personal
property; (2) that said property belongs to
another; (3) that the taking be done with intent to
gain; (4) that the taking be done without the
consent of the owner; and (5) that the taking be
accomplished without the use of violence
against or intimidation of persons or force upon
things.[90]
Such factor runs immaterial to the statutory
definition of theft, which is the taking, with intent
to gain, of personal property of another without
the latters consent. While the Dio/Flores dictum
is considerate to the mindset of the offender, the
statutory definition of theft considers only the
perspective of intent to gain on the part of the
offender, compounded by the deprivation of
property on the part of the victim.
For the purpose of ascertaining whether theft is
susceptible of commission in the frustrated
stage, the question is again, 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. This conclusion is reflected in
Chief Justice Aquinos commentaries, as earlier
cited, that [i]n theft or robbery the crime is
consummated after the accused had material
possession of the thing with intent to appropriate
the same, although his act of making use of the
thing was frustrated.[91]
It might be argued, that the ability of the offender
to freely dispose of the property stolen delves
into the concept of taking itself, in that there
could be no true taking until the actor obtains
such degree of control over the stolen item. But
even if this were correct, the effect would be to
downgrade the crime to its attempted, and not
frustrated stage, for it would mean that not all
the acts of execution have not been completed,
the taking not having been accomplished.
Perhaps this point could serve as fertile ground
for future discussion, but our concern now is
whether there is indeed a crime of frustrated
theft, and such consideration proves ultimately
immaterial to that question. Moreover, such
issue will not apply to the facts of this particular
case. We are satisfied beyond reasonable doubt
that the taking by the petitioner was completed
in this case. With intent to gain, he acquired
physical possession of the stolen cases of
detergent for a considerable period of time that
he was able to drop these off at a spot in the
parking lot, and long enough to load these onto
a taxicab.
Indeed, 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.[92] And long ago, we
asserted in People v. Avila:[93]
x x x [T]he most fundamental notion in the crime
of theft is the taking of the thing to be
appropriated into the physical power of the thief,
which idea is qualified by other conditions, such
as that the taking must be effected animo
lucrandi and without the consent of the owner;
and it will be here noted that the definition does
not require that the taking should be effected
against the will of the owner but merely that it
should be without his consent, a distinction of no
slight importance.[94]
Insofar as we consider the present question,
unlawful taking is most material in this respect.
Unlawful taking, which is the deprivation of ones
personal property, is the element which
produces the felony in its consummated stage.
At the same time, without unlawful taking as an
act of execution, the offense could only be
attempted theft, if at all.
With these considerations, we can only conclude
that under Article 308 of the Revised Penal
Code, theft cannot have a frustrated stage. Theft
can only be attempted or consummated.
Neither Dio nor Flores can convince us
otherwise. Both fail to consider that once the
offenders therein obtained possession over the
stolen items, the effect of the felony has been
produced as there has been deprivation of
property. The presumed inability of the offenders
to freely dispose of the stolen property does not
negate the fact that the owners have already
been deprived of their right to possession upon
the completion of the taking.
Moreover, as is evident in this case, the
adoption of the rule that the inability of the
offender to freely dispose of the stolen property
frustrates the theft would introduce a convenient
defense for the accused which does not reflect
any legislated intent,[95] since the Court would
have carved a viable means for offenders to
seek a mitigated penalty under applied
circumstances that do not admit of easy
classification. It is difficult to formulate definite
standards as to when a stolen item is
susceptible to free disposal by the thief. Would
this depend on the psychological belief of the
offender at the time of the commission of the
crime, as implied in Dio?
Or, more likely, the appreciation of several
classes of factual circumstances such as the
size and weight of the property, the location of
the property, the number and identity of people
present at the scene of the crime, the number
and identity of people whom the offender is
expected to encounter upon fleeing with the
stolen property, the manner in which the stolen
item had been housed or stored; and quite
frankly, a whole lot more. Even the fungibility or
edibility of the stolen item would come into
account, relevant as that would be on whether
such property is capable of free disposal at any
stage, even after the taking has been
consummated.
All these complications will make us lose sight of
the fact that beneath all the colorful detail, the
owner was indeed deprived of property by one
who intended to produce such deprivation for
reasons of gain. For such will remain the
presumed fact if frustrated theft were
recognized, for therein, all of the acts of
execution, including the taking, have been
completed. If the facts establish the non-
completion of the taking due to these peculiar
circumstances, the effect could be to downgrade
the crime to the attempted stage, as not all of
the acts of execution have been performed. But
once all these acts have been executed, the
taking has been completed, causing the unlawful
deprivation of property, and ultimately the
consummation of the theft.
Maybe the Dio/Flores rulings are, in some
degree, grounded in common sense. Yet they
do not align with the legislated framework of the
crime of theft. The Revised Penal Code
provisions on theft have not been designed in
such fashion as to accommodate said rulings.
Again, there is no language in Article 308 that
expressly or impliedly allows that the free
disposition of the items stolen is in any way
determinative of whether the crime of theft has
been produced. Dio itself did not rely on
Philippine laws or jurisprudence to bolster its
conclusion, and the later Flores was ultimately
content in relying on Dio alone for legal support.
These cases do not enjoy the weight of stare
decisis, and even if they did, their erroneous
appreciation of our law on theft leave them
susceptible to reversal. The same holds true of
Empilis, a regrettably stray decision which has
not since found favor from this Court.
We thus conclude that under the Revised Penal
Code, there is no crime of frustrated theft. As
petitioner has latched the success of his appeal
on our acceptance of the Dio and Flores rulings,
his petition must be denied, for we decline to
adopt said rulings in our jurisdiction. That it has
taken all these years for us to recognize that
there can be no frustrated theft under the
Revised Penal Code does not detract from the
correctness of this conclusion. It will take
considerable amendments to our Revised Penal
Code in order that frustrated theft may be
recognized. Our deference to Viada yields to the
higher reverence for legislative intent.
WHEREFORE, the petition is DENIED. Costs
against petitioner.
SO ORDERED.
FIRST DIVISION
[G.R. No. 99838. October 23, 1997]
PEOPLE OF THE PHILIPPINES, plaintiff-
appellee, vs. ERNESTO ENRIQUEZ y
ROSALES and WILFREDO ROSALES y
YUCOT, accused-appellants.
DECISION
VITUG, J.:
Ernesto Enriquez y Rosales and Wilfredo
Rosales y Yucot were charged with having
violated Section 4, Article II, of Republic Act
("R.A.") No. 6425 (Dangerous Drugs Act of
1972), as amended, in an information that read:
That on or about June 5, 1990, in the City of
Manila, Philippines, the said accused, conspiring
and confederating together and mutually helping
each other, not being authorized by law to sell,
deliver, give away to another or distribute any
prohibited drug, did then and there wilfully and
unlawfully sell or offer for sale six (6) kgrms of
dried flowering tops of marijuana stuffed in a
plastic sack, which is a prohibited drug.
"Contrary to law.[1]
The antecedent facts leading to the filing of the
information, according to the prosecution, are
hereunder narrated.
At around eleven oclock in the morning of 05
June 1990, Sgt. Pedro I. Cerrillo, Jr., the Officer-
in-Charge of the Intelligence and Drug Law
Enforcement Unit of Police Station No. 2
(located in Tondo, Manila) of the Western Police
District, was in the vicinity of North Harbor
routinely scouting for information from his civilian
informants. Near the gate fronting Pier 10,
Danny, a porter and member of the Anti-Drug
Abuse Movement ("ADAM"), approached and
informed Sgt. Cerrillo that a free-lance porter at
the North Harbor, a.k.a. Bulag, was looking for
prospective buyers of marijuana. Sgt. Cerrillo
instructed Danny to say that he had come
across a couple who would be interested in
buying the prohibited drug. Sgt. Cerrillo had then
in mind a possible buy-bust operation.
The buy-bust plan was broached to
Patrolwoman Shirley Maramot who was
manning Police Station No. 2. Fellow police
officers were at the time on duty at the U.S.
Embassy where a "rally" by certain activists was
in progress. Using his own owner-type jeep, Sgt.
Cerrillo repaired to his house at 727 Moriones
St., Tondo, Manila, to procure ten (10) pieces of
one hundred peso bills[2] to be used in the
projected buy-bust operation.[3] He thereupon
had, at a store near the police station, xerox
copies made of the bills that can readily show
the serial numbers which he had also noted
down in his personal notebook.[4]
Back at the police station, Sgt. Cerrillo handed
the buy-bust money to Pat. Maramot. Since
there were no other "operatives" at the station
available for the operation, Sgt. Cerrillo sought
the assistance of ADAM members Joseph
Mendoza, Amado Betita and Alex Trinidad. The
team, including "Danny," were briefed by Sgt.
Cerrillo. The plan called for Pat. Maramot and
Mendoza to pose as the couple interested in
buying marijuana and for Trinidad, Betita and
Sgt. Cerrillo to act as the "back-up" men. Pat.
Maramot was to nod her head as soon as the
sale was consummated.[5]
At about 11:35 a.m., the group, using two
vehicles, proceeded to the vicinity of Pier 10 at
the North Harbor. At the corner of Moriones
Street and Radial Road 10, Pat. Maramot and
Mendoza sat on a bench by a store to wait for
the return of Danny, who had meanwhile left to
fetch Bulag, while Sgt. Cerrillo, Trinidad and
Betita strategically positioned themselves at a
billiard hall, mingling with spectators and
pretending to be bystanders. The billiard hall
was only about ten meters away from Pat.
Maramots group, and it afforded a good view of
the place.[6]
Moments later, Danny arrived with accused
Wilfredo Rosales, a.k.a. Bulag. Rosales talked
with the poseur-buyers. After about five minutes,
the poseur-buyers, Rosales and the informant
entered an alley, walking along shanties, until
they reached a house numbered 1349.
A half-naked man in green shorts emerged from
one of the doors of the house. The man, later
identified to be accused Ernesto Enriquez, a.k.a.
Nene, asked Pat. Maramot in Visayan accent,
Dala mo ba ang pera? Pat. Maramot took out
from her pocket the bundle of the marked money
and showed it to Enriquez. The latter allowed
Maramots group to enter the house.[7] Minutes
later, as so pre-arranged, Sgt. Cerrillo followed
and proceeded to house No. 1349. Finding the
door closed, he went around the house. Sgt.
Cerrillo saw Pat. Maramot, Mendoza and the
informant exit through the back door. Rosales,
carrying a plastic bag, was with them. Again,
Sgt. Cerrillos group followed Pat. Maramot and
Rosales until the latter reached a nearby waiting
shed for jeepney passengers. At this point, Pat.
Maramot announced that she was a
policewoman. Sgt. Cerrillo held Rosales and
took his bag. Sgt. Cerrillo opened the sack, and
inside it was another sack containing marijuana
wrapped in plastic.
The group hurriedly returned to house No. 1349
only to find that Enriquez had by then left the
premises. The team boarded the police service
jeep and moved on to Kagitingan Street at the
Lakandula detachment. Sgt. Cerrillo interviewed
Rosales. Upon being informed that Enriquez
would usually visit the Pier 10 area, Sgt. Cerrillo
proceeded to the place. After scouring the area,
a security guard supervisor at the pier, who
accompanied the group, spotted Enriquez
walking near the pier. Sgt. Cerrillo picked up
Enriquez and brought him to the Lakandula
detachment for investigation. Later, Minda, the
wife of Enriquez, arrived. Someone, at the
request of Enriquez, had fetched her to "bring
the money." Enriquez told her to return the
amount to Sgt. Cerrillo. She took out from her
wallet its contents three of which were the 100-
peso marked bills.[8] Minda became hysterical.
She embraced Sgt. Cerrillo and begged him to
forgive her husband. Sgt. Cerrillo told her to
instead see the station commander.[9]
Sgt. Cerrillo apprised Enriquez and Rosales of
their constitutional rights. Sgt. Cerrillo advised
Enriquez, in front of the latters wife, that he
should look for a lawyer so that his statement
could be taken. Sgt. Cerrillo prepared the
request for the examination of the evidence
taken from the accused and the affidavit[10] of the
latter's arrest.[11]
On the evening of 05 June 1990, Minda and
other relatives of Enriquez approached Sgt.
Cerrillo for the possibility of "settling" the case.
During the trial, another relative, a senior
supervising agent of the Napolcom, also
approached and requested Sgt. Cerrillo to help
out.[12]
Patrolwoman Shirley Maramot, 37 years old,
assigned at Police Station No. 2, corroborated
Sgt. Cerrillo. She testified that she was
requested by Sgt. Cerrillo to be the poseur-
buyer in the buy-bust operation conducted in the
morning of 05 June 1990 along Alinian Street,
Tondo, Manila. After Sgt. Cerrillo had conducted
a briefing and provided her with the buy-bust
money, Pat. Maramot went with Mendoza, who
portrayed the role of her husband, and the
informer to Radial 10 at Pier 14. When Wilfredo
Rosales turned up, he asked if she had cash
with her. After being shown the money, Rosales
led her to a house numbered 1349. The poseur-
buyers were made to wait momentarily while
Rosales talked to Ernesto Enriquez. Rosales
later signaled Pat. Maramot, who was around
four (4) meters away, to again show her money.
Forthwith, Pat. Maramot was led to the house of
Enriquez. Once inside a small room, Enriquez
locked the door. Enriquez asked Pat. Maramot
how much money she had. She replied that she
only had P1,000.00 since she was not sure that
she could get as much as the one-half sack of
the contraband shown to her. Pat. Maramot was
told she could get the lot for P4,500.00. She said
she was willing to get the lot if she could be
trusted with the balance of the price. Enriquez
agreed. Pat. Maramot handed over the
P1,000.00 to Enriquez. The latter was about to
hand over the marijuana when he decided to,
instead, have Rosales personally deliver the
marijuana.
Pat. Maramot followed Rosales until Maramot
finally introduced herself as a policewoman.
Rosales posthaste attempted to board a passing
passenger jeep but Pat. Maramot and Sgt.
Cerrillo, who had rushed in, were able to timely
get hold of Rosales.[13]
NBI Forensic Chemist George J. de Lara issued,
on 06 June 1990, a certification to the effect that
the specimen submitted to him was positive for
marijuana.[14] Sgt. Cerrillo prepared a case
report[15] and the respective booking sheet and
arrest report.[16] The official report of the NBI
forensic chemist, dated 07 June 1990, disclosed
the following findings:
Weight of specimen = 6.00 kilograms (before
examination)
5.999 kilograms (after examination)
Microscopic, chemical and chromatographic
examinations made on the above-mentioned
specimen gave POSITIVE RESULTS for
MARIHUANA.[17]
On the same day, Station Commander Benjamin
de Jesus endorsed the case against Enriquez
and Rosales to the City Prosecutor for further
proceedings. The inquest fiscal recommended[18]
that the two accused be charged with violation of
Section 4, Article II, Republic Act No. 6425, as
amended.
The defense gave a different version of the
incident.
Accused Rosales testified that he had come
from Bohol to Manila in April of 1990 and stayed
with accused Enriquez, his cousin, while working
as an extra porter of William Lines. At around
11:30 in the morning of 05 June 1990, he was
on his way home from work when a male person
whom he recognized only by face sought his
assistance in carrying a sack to a place where
jeepney commuters would take their ride. The
sack was colored white and emitted the smell of
dried fish. He was promised P20 in exchange for
his help.At a junction, a security guard whom he
later identified to be Homer Ciesta, blocked and
pushed him inside a vehicle where he was
promptly handcuffed. During the commotion, the
owner of the sack disappeared.[19] Rosales was
brought to a house near the slum area in Parola
where P20,000 was quoted for his release by
Sgt. Cerrillo.[20] When Rosales did not heed the
demand, he was brought first to the Lakandula
detachment and then to Station No. 2 of the
Western Police District.
On his part, Enriquez, a resident of 1349-C
Alinian Street, Tondo, Manila, claimed that he
was in the business of purchase and sale of oil
at the North Harbor, under the business name of
Nie-Men R. Enriquez Enterprises,[21] being the
grantee of a permit to operate an oil sludge
collection service.[22] He was under contract by
the Lorenzo Shipping Corporation from January
1983 to April 1984. He was also the Vice-
President of the Kapisanan ng Maralitang
Naninirahan ng Tondo, Inc. a civic organization
and a recipient of a certification of merit from the
National Steel Corporation.[23]
Recounting his whereabouts in the morning of
05 June 1990, Enriquez said he left his house at
around 11:45 a.m. for Pier 10 of the North
Harbor, barely a thirty-minute walk away from
his residence, to meet his brother, Victor
Enriquez, at the pier. He had with him P2,000 in
P100 denominations stacked in his wallet.
Robinson Lumbis, a neighbor who was road
testing his cab along North Harbor, saw and
greeted Enriquez.[24] Betty Quimbo, another
neighbor, later saw Enriquez with his brother.[25]
Appellant took his lunch at home and thereafter
hurriedly returned to the pier. He was not able to
spend the night in his house. The following day,
06 June 1990, at around two oclock in the
afternoon, Enriquez went to the maintenance
section of the Lorenzo Shipping Lines to pay for
the oil he had obtained from its vessels. Homer
Ciesta, the officer-in-charge of the security
guards of the shipping line, invited Enriquez, and
the latter agreed, to join him (Ciesta) earn some
"extra money." The two left for the squatters
area in Parola and, once there, Ciesta told
Enriquez to approach a certain person, later
identified to be Sgt. Cerrillo, who instantly
handcuffed him. Sgt. Cerrillo demanded
P20,000 in exchange for his freedom. When he
refused to give in to the demand, Enriquez was
brought to the Lakandula detachment where the
P2,000 he had in his wallet was taken and
presented in evidence as the amount used in the
buy-bust operation. He was brought to Station
No. 2 of the WPD for investigation.[26] Homer
Ciesta went to tell Arminda, the wife of Enriquez,
to bring some money to the Lakandula police
detachment. Arriving at the detachment,
someone approached Arminda and asked her
whether she had the money. She replied in the
affirmative. The person then grabbed her wallet,
took its contents and later returned the empty
wallet.[27]
On 24 January 1991, the trial court, giving
credence to the evidence submitted by the
prosecution, found both accused guilty beyond
reasonable doubt of the crime charged and
sentenced each of them to life imprisonment and
to pay a fine of P30,000.
In their appeal to this Court, Rosales and
Enriquez have filed separate briefs.
Appellant Enriquez insists on his innocence and
faults the trial court for giving too much credence
to the testimony of Sgt. Cerrillo and Pat.
Maramot who, Enriquez asserts, have merely
framed them up for selfish motives. He theorizes
that it would seem incredible for either Pat.
Maramot or Sgt. Cerrillo to have left and
abandoned Station No. 2 considering that the
Station Commander and his men have all been
posted in the then on-going rally at the U.S.
Embassy. He downgrades the prosecutions
asseveration that Pat. Maramot, being unarmed,
could not effect his immediate arrest, and that
Sgt. Cerrillo has so used his personal funds as
marked money. Enriquez also questions the six-
day delay in the filing of the information.
The Court is scarcely impressed.
Simply said, appellant Enriquez would assail the
credibility of the two prosecution witnesses.
Almost always, the evaluation made by the trial
court on the credibility of witnesses is viewed
with respect. The trial judge, who has the distinct
advantage of being able to observe closely the
demeanor and deportment of witnesses on the
stand as well as the manner in which they
testify, undoubtedly can better determine than
anyone else if such witnesses are telling or are
not telling the truth. He is in an ideal position to
weigh conflicting testimonies and unless, as so
repeatedly said, he has obviously discarded or
missed certain facts of substance and
significance that, otherwise, would have altered
his judgment, an assessment on credibility made
by him should indeed deserve approbation by an
appellate court.[28]
The Court, in the case at bench, has scrutinized
the records, and it finds no justification for
holding differently from the findings made by the
trial court.
In drug related cases, particularly in a buy-bust
operation, the contention that the accused has
merely been framed up by law enforcement
personnel for selfish motives is quite often
raised by the defense. For this claim to prosper,
the evidence adduced must be clear and
convincing[29] in order to overcome the
presumption that government officials have
performed their duties in a regular and proper
manner.[30] Appellant, regrettably, has miserably
failed to substantiate his allegations in this
respect.
Enriquez questions the six-day delay in the filing
of the information against him which he
attributes to an extortion attempt made on him.
Like an alleged frame-up, a supposed extortion
by police officers has, too, been a standard
defense in drug cases. Appellants failure to offer
evidence, independently of his bare claim of
extortion, suggests that this defense could either
be a fabrication or an afterthought. If, truly, the
arresting police officers have tried to extort
money from him, it should have behooved
Enriquez to come forward with the proper
charges against the erring police officers.[31] No
criminal or administrative charges appear to
have been filed by him. It is equally strange that
the supposed extortions neither appeared in
appellant's counter-affidavit[32] nor in his
affidavit[33] both prepared by his counsel of
choice. In any event, the Court does not see any
real undue delay on the part of the police. The
station commander filed the case with the
prosecutor on 07 June 1990, the same day that
the NBI forensic chemists official report was
released. The transmittal letter,[34] of the station
commander, bears the recommendation,
likewise dated 07 June 1990, of the inquest
fiscal finding a violation of Section 4, Article II, of
R.A. No. 6425.
Appellant Enriquez surmised that it was strange
for Sgt. Cerrillo and Pat. Maramot to have left
the police station unmanned just to conduct a
buy-bust operation. Sgt. Cerrillo explained that,
being the Intelligence Officer in Station No. 2, he
would spend most of his duty hours in the
field.[35] He chose Pat. Maramot to be the
poseur-buyer because she was not well known
in the place of operation. While she had a desk
job she could also be assigned elsewhere when
the situation would demand. Furthermore, the
buy-bust operation was conducted in an area
not far from the police station (testified to be at
an approximate distance of between the Manila
City Hall and the Luneta Park [36]).
On cross-examination, Pat. Maramot explained
why she could not arrest Enriquez when he
received the money. She testified:
ATTY. ESMERO:
"During the time that you were in that
room together with Enriquez and you said that
Enriquez took up a half sack of marijuana under
the table, did it not occur to your mind to arrest
him immediately during that time and introduced
yourself as a policewoman together with your
husband?
"WITNESS:
"If you will place yourself in my situation, I
am so small to arrest a person and I am not so
big so I have to wait for my companions, sir.
"INTERPRETER:
"Witness pointed to the Accused.
"ATTY. ESMERO:
"How about your supposed husband?
"WITNESS:
"Besides we did not bring anything even a
gun because they are outside, sir.
"ATTY. ESMERO:
"You could have immediately went (sic)
out of the door and after that contacted Cerrillo.
You could have told him immediately because
he was about seven (7) meters from that room?
"WITNESS:
"The door was locked, sir.
"ATTY. ESMERO:
"You could have knocked at the door if
you want to call him?
"WITNESS:
"It could not be heard because in that alley
there were adjacent rooms, sir, `kuwarto-
kuwarto.'
"ATTY. ESMERO:
"Now, you said that you went out through
the back door. Who was together with you when
you went out at the back door?
"WITNESS:
"Joseph, the one who pretended to be my
husband, sir.
"ATTY. ESMERO:
"How about Rosales?
"WITNESS:
"He passed through the front door
together with the informant, sir.
"ATTY. ESMERO:
"And the front door was where Pat.
Cerrillo was positioned?
"WITNESS:
"No, sir. Cerillo was positioned at the side. He
could not meet them immediately because when
you go out at that door, it is already a street.[37]
The use of Sgt. Cerrillos own money in the buy-
bust operation could be expected. Police Station
No. 2 was not logistically funded.[38] In the buy-
bust operation, only three 100-peso bills of the
marked money were recovered which,
unfortunately, were lost to thieves when Sgt.
Cerrillo had momentarily parked his jeep within
the vicinity of the police station on 11 July
1990.[39] He reported this loss along with the loss
of an ammunition belt pack with six (6) live cal.
.38 bullets and his Parker ballpen.[40] At any rate,
the non-presentation of the buy-bust money
could not adversely affect the case against
appellants.[41]
Alibi is definitely a weak defense although it may
occasionally prove to be a good plea. In order to
be effective, however, this defense requires
proof that it would be physically impossible for
the accused to be at the locus criminis at the
time of the commission of the crime. Where
there is even the least chance for the accused to
be present at the crime scene, the alibi seldom
will hold water.[42] Most significantly, the defense
of alibi crumbles in the face of a positive
identification of the malefactor.[43]
In his case, appellant Rosales argues that to
sustain a conviction for the crime of selling
marijuana, the sale must be clearly established
which, he asserts, the prosecution has failed to
do.
The Court cannot sustain the argument.
Under Section 4, Article II, of R.A. No. 6425,[44]
as amended, the law penalizes not only the sale
but also the delivery of prohibited drugs.
Section 4. Sale, Administration, Delivery,
Distribution and Transportation of Prohibited
Drugs. The penalty of life imprisonment to death
and a fine ranging from twenty thousand to thirty
thousand pesos shall be imposed upon any
person who, unless authorized by law, shall sell,
administer, deliver, give away to another,
distribute, dispatch in transit or transport any
prohibited drug, or shall act as a broker in any of
such transactions. If the victim of the offense is a
minor, or should a prohibited drug involved in
any offense under this Section be the proximate
cause of the death of a victim thereof, the
maximum penalty herein provided shall be
imposed. (Italics supplied.)
Selling is only one of the acts covered by the
statutory provision. The law defines the word
deliver as a persons act of knowingly passing a
dangerous drug to another personally or
otherwise, and by any manner with or without
consideration. Delivery, although not incidental
to a sale, is a punishable act by itself; while sale
may involve money or any other material
consideration,[45] delivery may be with or without
consideration.
Appellant Rosales contends that while criminal
intent need not generally be proved in crimes
that are mala prohibita, knowledge that the sack
in his possession contained a prohibited drug
must nevertheless be established. Indeed,
Section 2(f) of the Dangerous Drugs Law
requires that a person who delivers a prohibited
drug must knowingly pass such contraband to
another person. Thus, in one case, the Court
has said:
x x x. While it is true that the non-revelation of
the identity of an informer is a standard practice
in drug cases, such is inapplicable in the case at
bar as the circumstances are different. The
would-be buyers testimony was absolutely
necessary because it could have helped the trial
court in determining whether or not the accused-
appellant had knowledge that the bag contained
marijuana, such knowledge being an essential
ingredient of the offense for which he was
convicted. The testimony of the poseur-buyer
(not as an informer but as a `buyer) as to the
alleged agreement to sell therefore became
indispensable to arrive at a just and proper
disposition of this case.[46]
In this case, the trouble appears to be that
appellant Rosales incorrectly assumes to be, or
gives an impression of being, unaware of the
prohibited drug involved in the questioned
transaction with appellant Enriquez; in point of
fact, however, it is sufficiently shown that
Rosales has known all along that the deal
between Enriquez and the poseur-buyers had
only to do with marijuana.
Appellant Rosales believes that his act of
carrying the sack of marijuana is a mere attempt
to deliver the prohibited drug. In other words, the
sack being still within his control, he could, he
states, have easily refused to deliver the item to
the poseur-buyer. Here, he seeks to capitalize
on his being supposedly still in the subjective
phase of the crime. Appellant Rosales thus
submits that, if found guilty, he should only be
held accountable for attempted delivery of a
prohibited drug.
Article 6 of the Revised Penal Code provides:
"ART. 6. Consummated, frustrated, and
attempted felonies. - Consummated felonies, as
well as those which are frustrated and
attempted, are punishable.
"A felony is consummated when all the elements
necessary for its execution and accomplishment
are present; and it is frustrated when the
offender performs all the acts of execution which
would produce the felony as a consequence but
which, nevertheless, do not produce it by reason
of causes independent of the will of the
perpetrator.
"There is an attempt when the offender
commences the commission of a felony directly
by overt acts, and does not perform all the acts
of execution which should produce the felony by
reason of some cause or accident other than his
own spontaneous desistance."
The subjective phase in the commission of a
felony is that portion of its execution starting
from the point where the offender begins by
overt acts to pursue the crime until he is
prevented, against his will, by some outside
cause from performing all of the acts which
would produce the offense. If the subjective
phase has not yet passed, then the crime is only
attempted. If that phase has been done but the
felony is not produced, the crime is frustrated.[47]
The crime is consummated if, following the
subjective phase, the last of the elements of the
felony meets to concur. These rules are
inapplicable to offenses governed by special
laws.[48]
Unfortunately for appellant, the crime with which
he is being charged is penalized by a special
law. The incomplete delivery claimed by
appellant Rosales, granting that it is true, is thus
inconsequential. The act of conveying prohibited
drugs to an unknown destination has been held
to be punishable,[49] and it is immaterial whether
or not the place of destination of the prohibited
drug is reached.[50]
In sum, the facts proven beyond reasonable
doubt in this case were that: (a) Two police
officers, one of them a woman, conceived of and
executed a buy-bust operation; (b) the operation
led to the red-handed apprehension of appellant
Rosales just as he delivered the illegal drug; and
(c) appellant Enriquez who had peddled the
same to the poseur-buyer was himself later
arrested shortly thereafter. The sale and delivery
of marijuana constituted punishable acts under
Section 4, Article II, of R.A. No. 6425, as
amended.Appellants Enriquez and Rosales
should bear the consequences of their trifling
with the law. The two evidently confederated
towards the common purpose of selling and
delivering marijuana. Conspiracy could be
inferred from the acts of the accused, whose
conduct before, during and after the commission
of the crime would show its existence.[51] It was
appellant Rosales who brought the poseur-buyer
to appellant Enriquez for the purchase of
marijuana. It was upon the instruction of
appellant Enriquez, apparently to retain control
of the unpaid portion of the six-kilogram
contraband, that appellant Rosales was to carry
the sack to the supposed residence of the
poseur-buyers. In conspiracy, the act of one
conspirator could be held to be the act of the
other.[52]
R.A. No. 7659, amending the Dangerous Drugs
Law, now provides that if the quantity of drugs
involved in any of the punishable acts is more
than any of the amounts specified in the law, the
penalty of reclusion perpetua to death[53] must
be imposed. Considering that the marijuana
involved here weighed more than 750 grams,
the maximum specified amount for marijuana,
appellants, ordinarily, are to be meted that
penalty. An amendatory law, however, may only
be applied retroactively if it proves to be
beneficial to the appellants. In this case, it would
not be that favorable to them; hence, like in
People vs. Ballagan,[54] the Court could only
impose the penalty of life imprisonment upon
appellants. The penalty of reclusion perpetua
would mean that the accused would also have to
suffer the accessories carried by that penalty, as
well as the higher fine, provided for by R.A. No.
7659.[55] Appellants must, accordingly, still bear
the penalty imposed on them by the trial court.
WHEREFORE, the questioned Decision of 21
January 1991 of the Regional Trial Court of
Manila, finding appellants Ernesto Enriquez and
Wilfredo Rosales guilty beyond reasonable
doubt of the crime punished by Section 4, Article
II, of R.A. No. 6425, as amended, and imposing
on them the penalty of life imprisonment and the
payment of the fine of P30,000 is AFFIRMED.
Costs against appellants.
SO ORDERED.
Davide, Jr., Acting Chief Justice, (Chairman),
Bellosillo, and Kapunan, JJ., concur.
THIRD DIVISION
G.R. No. 168852 September 30, 2008
SHARICA MARI L. GO-TAN, Petitioner,
vs.
SPOUSES PERFECTO C. TAN and JUANITA
L. TAN, Respondents.*
DECISION
AUSTRIA-MARTINEZ, J.:
Before the Court is a Petition for Review on
Certiorari under Rule 45 of the Rules of Court
assailing the Resolution1 dated March 7, 2005 of
the Regional Trial Court (RTC), Branch 94,
Quezon City in Civil Case No. Q-05-54536 and
the RTC Resolution2 dated July 11, 2005 which
denied petitioner's Verified Motion for
Reconsideration.
The factual background of the case:
On April 18, 1999, Sharica Mari L. Go-Tan
(petitioner) and Steven L. Tan (Steven) were
married.3 Out of this union, two female children
were born, Kyra Danielle4 and Kristen Denise.5
On January 12, 2005, barely six years into the
marriage, petitioner filed a Petition with Prayer
for the Issuance of a Temporary Protective
Order (TPO)6 against Steven and her parents-in-
law, Spouses Perfecto C. Tan and Juanita L.
Tan (respondents) before the RTC. She alleged
that Steven, in conspiracy with respondents,
were causing verbal, psychological and
economic abuses upon her in violation of
Section 5, paragraphs (e)(2)(3)(4), (h)(5), and
(i)7 of Republic Act (R.A.) No. 9262,8 otherwise
known as the "Anti-Violence Against Women
and Their Children Act of 2004."
On January 25, 2005, the RTC issued an
Order/Notice9 granting petitioner's prayer for a
TPO.
On February 7, 2005, respondents filed a Motion
to Dismiss with Opposition to the Issuance of
Permanent Protection Order Ad Cautelam and
Comment on the Petition,10 contending that the
RTC lacked jurisdiction over their persons since,
as parents-in-law of the petitioner, they were not
covered by R.A. No. 9262.
On February 28, 2005, petitioner filed a
Comment on Opposition11 to respondents'
Motion to Dismiss arguing that respondents
were covered by R.A. No. 9262 under a liberal
interpretation thereof aimed at promoting the
protection and safety of victims of violence.
On March 7, 2005, the RTC issued a
Resolution12 dismissing the case as to
respondents on the ground that, being the
parents-in-law of the petitioner, they were not
included/covered as respondents under R.A. No.
9262 under the well-known rule of law
"expressio unius est exclusio alterius."13
On March 16, 2005, petitioner filed her Verified
Motion for Reconsideration14 contending that the
doctrine of necessary implication should be
applied in the broader interests of substantial
justice and due process.
On April 8, 2005, respondents filed their
Comment on the Verified Motion for
Reconsideration15arguing that petitioner's liberal
construction unduly broadened the provisions of
R.A. No. 9262 since the relationship between
the offender and the alleged victim was an
essential condition for the application of R.A. No.
9262.
On July 11, 2005, the RTC issued a Resolution16
denying petitioner's
Verified Motion for Reconsideration. The RTC
reasoned that to include respondents under the
coverage of R.A. No. 9262 would be a strained
interpretation of the provisions of the law.
Hence, the present petition on a pure question
of law, to wit:
WHETHER OR NOT RESPONDENTS-
SPOUSES PERFECTO & JUANITA, PARENTS-
IN-LAW OF SHARICA, MAY BE INCLUDED IN
THE PETITION FOR THE ISSUANCE OF A
PROTECTIVE ORDER, IN ACCORDANCE
WITH REPUBLIC ACT NO. 9262, OTHERWISE
KNOWN AS THE "ANTI-VIOLENCE AGAINST
WOMEN AND THEIR CHILDREN ACT OF
2004".17
Petitioner contends that R.A. No. 9262 must be
understood in the light of the provisions of
Section 47 of R.A. No. 9262 which explicitly
provides for the suppletory application of the
Revised Penal Code (RPC) and, accordingly,
the provision on "conspiracy" under Article 8 of
the RPC can be suppletorily applied to R.A. No.
9262; that Steven and respondents had
community of design and purpose in tormenting
her by giving her insufficient financial support;
harassing and pressuring her to be ejected from
the family home; and in repeatedly abusing her
verbally, emotionally, mentally and physically;
that respondents should be included as
indispensable or necessary parties for complete
resolution of the case.
On the other hand, respondents submit that they
are not covered by R.A. No. 9262 since Section
3 thereof explicitly provides that the offender
should be related to the victim only by marriage,
a former marriage, or a dating or sexual
relationship; that allegations on the conspiracy
of respondents require a factual determination
which cannot be done by this Court in a petition
for review; that respondents cannot be
characterized as indispensable or necessary
parties, since their presence in the case is not
only unnecessary but altogether illegal,
considering the non-inclusion of in-laws as
offenders under Section 3 of R.A. No. 9262.
The Court rules in favor of the petitioner.
Section 3 of R.A. No. 9262 defines ''[v]iolence
against women and their children'' as "any act or
a series of acts committed by any person
against a woman who is his wife, former wife, or
against a woman with whom the person has or
had a sexual or dating relationship, or with
whom he has a common child, or against her
child whether legitimate or illegitimate, within or
without the family abode, which result in or is
likely to result in physical, sexual, psychological
harm or suffering, or economic abuse including
threats of such acts, battery, assault, coercion,
harassment or arbitrary deprivation of liberty."
While the said provision provides that the
offender be related or connected to the victim by
marriage, former marriage, or a sexual or dating
relationship, it does not preclude the application
of the principle of conspiracy under the RPC.
Indeed, Section 47 of R.A. No. 9262 expressly
provides for the suppletory application of the
RPC, thus:
SEC. 47. Suppletory Application. - For purposes
of this Act, the Revised Penal Code and other
applicable laws, shall have suppletory
application. (Emphasis supplied)
Parenthetically, Article 10 of the RPC provides:
ART. 10. Offenses not subject to the provisions
of this Code. Offenses which are or in the
future may be punishable under special laws are
not subject to the provisions of this Code. This
Code shall be supplementary to such laws,
unless the latter should specially provide the
contrary.(Emphasis supplied)
Hence, legal principles developed from the
Penal Code may be applied in a supplementary
capacity to crimes punished under special laws,
such as R.A. No. 9262, in which the special law
is silent on a particular matter.
Thus, in People v. Moreno,18 the Court applied
suppletorily the provision on subsidiary penalty
under Article 39 of the RPC to cases of
violations of Act No. 3992, otherwise known as
the "Revised Motor Vehicle Law," noting that the
special law did not contain any provision that the
defendant could be sentenced with subsidiary
imprisonment in case of insolvency.
In People v. Li Wai Cheung,19 the Court applied
suppletorily the rules on the service of
sentences provided in Article 70 of the RPC in
favor of the accused who was found guilty of
multiple violations of R.A. No. 6425, otherwise
known as the "Dangerous Drugs Act of 1972,"
considering the lack of similar rules under the
special law.
In People v. Chowdury,20 the Court applied
suppletorily Articles 17, 18 and 19 of the RPC to
define the words "principal," "accomplices" and
"accessories" under R.A. No. 8042, otherwise
known as the "Migrant Workers and Overseas
Filipinos Act of 1995," because said words were
not defined therein, although the special law
referred to the same terms in enumerating the
persons liable for the crime of illegal recruitment.
In Yu v. People,21 the Court applied suppletorily
the provisions on subsidiary imprisonment under
Article 39 of the RPC to Batas Pambansa (B.P.)
Blg. 22, otherwise known as the "Bouncing
Checks Law," noting the absence of an express
provision on subsidiary imprisonment in said
special law.
Most recently, in Ladonga v. People,22 the Court
applied suppletorily the principle of conspiracy
under Article 8 of the RPC to B.P. Blg. 22 in the
absence of a contrary provision therein.
With more reason, therefore, the principle of
conspiracy under Article 8 of the RPC may be
applied suppletorily to R.A. No. 9262 because of
the express provision of Section 47 that the RPC
shall be supplementary to said law. Thus,
general provisions of the RPC, which by their
nature, are necessarily applicable, may be
applied suppletorily.
Thus, the principle of conspiracy may be applied
to R.A. No. 9262. For once conspiracy or action
in concert to achieve a criminal design is shown,
the act of one is the act of all the conspirators,
and the precise extent or modality of
participation of each of them becomes
secondary, since all the conspirators are
principals.23
It must be further noted that Section 5 of R.A.
No. 9262 expressly recognizes that the acts of
violence against women and their children may
be committed by an offender through another,
thus:
SEC. 5. Acts of Violence Against Women and
Their Children. - The crime of violence against
women and their children is committed through
any of the following acts:
xxx
(h) Engaging in purposeful, knowing, or reckless
conduct, personally or through another,
thatalarms or causes substantial emotional or
psychological distress to the woman or her child.
This shall include, but not be limited to, the
following acts:
(1) Stalking or following the woman or her child
in public or private places;
(2) Peering in the window or lingering outside
the residence of the woman or her child;
(3) Entering or remaining in the dwelling or on
the property of the woman or her child against
her/his will;
(4) Destroying the property and personal
belongings or inflicting harm to animals or pets
of the woman or her child; and
(5) Engaging in any form of harassment or
violence; x x x. (Emphasis supplied)
In addition, the protection order that may be
issued for the purpose of preventing further acts
of violence against the woman or her child may
include
individuals other than the offending husband,
thus:
SEC. 8. Protection Orders. x x x The
protection orders that may be issued under this
Act shall include any, some or all of the following
reliefs:
(a) Prohibition of the respondent from
threatening to commit or committing, personally
or through another, any of the acts mentioned
in Section 5 of this Act; 1avvphi1.net
(b) Prohibition of the respondent from harassing,
annoying, telephoning, contacting or otherwise
communicating with the petitioner, directly or
indirectly; x x x (Emphasis supplied)
Finally, Section 4 of R.A. No. 9262 calls for a
liberal construction of the law, thus:
SEC. 4. Construction. - This Act shall be
liberally construed to promote the protection
and safety of victims of violence against women
and their children. (Emphasis supplied)
It bears mention that the intent of the statute is
the law24 and that this intent must be effectuated
by the courts. In the present case, the express
language of R.A. No. 9262 reflects the intent of
the legislature for liberal construction as will best
ensure the attainment of the object of the law
according to its true intent, meaning and spirit -
the protection and safety of victims of violence
against women and children.
Thus, contrary to the RTC's pronouncement, the
maxim "expressio unios est exclusio alterius"
finds no application here. It must be
remembered that this maxim is only an "ancillary
rule of statutory construction." It is not of
universal application. Neither is it conclusive. It
should be applied only as a means of
discovering legislative intent which is not
otherwise manifest and should not be permitted
to defeat the plainly indicated purpose of the
legislature.25
The Court notes that petitioner unnecessarily
argues at great length on the attendance of
circumstances evidencing the conspiracy or
connivance of Steven and respondents to cause
verbal, psychological and economic abuses
upon her. However, conspiracy is an evidentiary
matter which should be threshed out in a full-
blown trial on the merits and cannot be
determined in the present petition since this
Court is not a trier of facts.26 It is thus premature
for petitioner to argue evidentiary matters since
this controversy is centered only on the
determination of whether respondents may be
included in a petition under R.A. No. 9262. The
presence or absence of conspiracy can be best
passed upon after a trial on the merits.
Considering the Court's ruling that the principle
of conspiracy may be applied suppletorily to
R.A. No. 9262, the Court will no longer delve on
whether respondents may be considered
indispensable or necessary parties. To do so
would be an exercise in superfluity.
WHEREFORE, the instant petition is
GRANTED. The assailed Resolutions dated
March 7, 2005 and July 11, 2005 of the Regional
Trial Court, Branch 94, Quezon City in Civil
Case No. Q-05-54536 are hereby PARTLY
REVERSED and SET ASIDE insofar as the
dismissal of the petition against respondents is
concerned.
SO ORDERED.
MA. ALICIA AUSTRIA-MARTINEZ
Associate Justice
THIRD DIVISION
G.R. No. 168852 September 30, 2008
SHARICA MARI L. GO-TAN, Petitioner,
vs.
SPOUSES PERFECTO C. TAN and JUANITA
L. TAN, Respondents.*
DECISION
AUSTRIA-MARTINEZ, J.:
Before the Court is a Petition for Review on
Certiorari under Rule 45 of the Rules of Court
assailing the Resolution1 dated March 7, 2005 of
the Regional Trial Court (RTC), Branch 94,
Quezon City in Civil Case No. Q-05-54536 and
the RTC Resolution2 dated July 11, 2005 which
denied petitioner's Verified Motion for
Reconsideration.
The factual background of the case:
On April 18, 1999, Sharica Mari L. Go-Tan
(petitioner) and Steven L. Tan (Steven) were
married.3 Out of this union, two female children
were born, Kyra Danielle4 and Kristen Denise.5
On January 12, 2005, barely six years into the
marriage, petitioner filed a Petition with Prayer
for the Issuance of a Temporary Protective
Order (TPO)6 against Steven and her parents-in-
law, Spouses Perfecto C. Tan and Juanita L.
Tan (respondents) before the RTC. She alleged
that Steven, in conspiracy with respondents,
were causing verbal, psychological and
economic abuses upon her in violation of
Section 5, paragraphs (e)(2)(3)(4), (h)(5), and
(i)7 of Republic Act (R.A.) No. 9262,8 otherwise
known as the "Anti-Violence Against Women
and Their Children Act of 2004."
On January 25, 2005, the RTC issued an
Order/Notice9 granting petitioner's prayer for a
TPO.
On February 7, 2005, respondents filed a Motion
to Dismiss with Opposition to the Issuance of
Permanent Protection Order Ad Cautelam and
Comment on the Petition,10 contending that the
RTC lacked jurisdiction over their persons since,
as parents-in-law of the petitioner, they were not
covered by R.A. No. 9262.
On February 28, 2005, petitioner filed a
Comment on Opposition11 to respondents'
Motion to Dismiss arguing that respondents
were covered by R.A. No. 9262 under a liberal
interpretation thereof aimed at promoting the
protection and safety of victims of violence.
On March 7, 2005, the RTC issued a
Resolution12 dismissing the case as to
respondents on the ground that, being the
parents-in-law of the petitioner, they were not
included/covered as respondents under R.A. No.
9262 under the well-known rule of law
"expressio unius est exclusio alterius."13
On March 16, 2005, petitioner filed her Verified
Motion for Reconsideration14 contending that the
doctrine of necessary implication should be
applied in the broader interests of substantial
justice and due process.
On April 8, 2005, respondents filed their
Comment on the Verified Motion for
Reconsideration15arguing that petitioner's liberal
construction unduly broadened the provisions of
R.A. No. 9262 since the relationship between
the offender and the alleged victim was an
essential condition for the application of R.A. No.
9262.
On July 11, 2005, the RTC issued a Resolution16
denying petitioner's
Verified Motion for Reconsideration. The RTC
reasoned that to include respondents under the
coverage of R.A. No. 9262 would be a strained
interpretation of the provisions of the law.
Hence, the present petition on a pure question
of law, to wit:
WHETHER OR NOT RESPONDENTS-
SPOUSES PERFECTO & JUANITA, PARENTS-
IN-LAW OF SHARICA, MAY BE INCLUDED IN
THE PETITION FOR THE ISSUANCE OF A
PROTECTIVE ORDER, IN ACCORDANCE
WITH REPUBLIC ACT NO. 9262, OTHERWISE
KNOWN AS THE "ANTI-VIOLENCE AGAINST
WOMEN AND THEIR CHILDREN ACT OF
2004".17
Petitioner contends that R.A. No. 9262 must be
understood in the light of the provisions of
Section 47 of R.A. No. 9262 which explicitly
provides for the suppletory application of the
Revised Penal Code (RPC) and, accordingly,
the provision on "conspiracy" under Article 8 of
the RPC can be suppletorily applied to R.A. No.
9262; that Steven and respondents had
community of design and purpose in tormenting
her by giving her insufficient financial support;
harassing and pressuring her to be ejected from
the family home; and in repeatedly abusing her
verbally, emotionally, mentally and physically;
that respondents should be included as
indispensable or necessary parties for complete
resolution of the case.
On the other hand, respondents submit that they
are not covered by R.A. No. 9262 since Section
3 thereof explicitly provides that the offender
should be related to the victim only by marriage,
a former marriage, or a dating or sexual
relationship; that allegations on the conspiracy
of respondents require a factual determination
which cannot be done by this Court in a petition
for review; that respondents cannot be
characterized as indispensable or necessary
parties, since their presence in the case is not
only unnecessary but altogether illegal,
considering the non-inclusion of in-laws as
offenders under Section 3 of R.A. No. 9262.
The Court rules in favor of the petitioner.
Section 3 of R.A. No. 9262 defines ''[v]iolence
against women and their children'' as "any act or
a series of acts committed by any person
against a woman who is his wife, former wife, or
against a woman with whom the person has or
had a sexual or dating relationship, or with
whom he has a common child, or against her
child whether legitimate or illegitimate, within or
without the family abode, which result in or is
likely to result in physical, sexual, psychological
harm or suffering, or economic abuse including
threats of such acts, battery, assault, coercion,
harassment or arbitrary deprivation of liberty."
While the said provision provides that the
offender be related or connected to the victim by
marriage, former marriage, or a sexual or dating
relationship, it does not preclude the application
of the principle of conspiracy under the RPC.
Indeed, Section 47 of R.A. No. 9262 expressly
provides for the suppletory application of the
RPC, thus:
SEC. 47. Suppletory Application. - For purposes
of this Act, the Revised Penal Code and other
applicable laws, shall have suppletory
application. (Emphasis supplied)
Parenthetically, Article 10 of the RPC provides:
ART. 10. Offenses not subject to the provisions
of this Code. Offenses which are or in the
future may be punishable under special laws are
not subject to the provisions of this Code. This
Code shall be supplementary to such laws,
unless the latter should specially provide the
contrary.(Emphasis supplied)
Hence, legal principles developed from the
Penal Code may be applied in a supplementary
capacity to crimes punished under special laws,
such as R.A. No. 9262, in which the special law
is silent on a particular matter.
Thus, in People v. Moreno,18 the Court applied
suppletorily the provision on subsidiary penalty
under Article 39 of the RPC to cases of
violations of Act No. 3992, otherwise known as
the "Revised Motor Vehicle Law," noting that the
special law did not contain any provision that the
defendant could be sentenced with subsidiary
imprisonment in case of insolvency.
In People v. Li Wai Cheung,19 the Court applied
suppletorily the rules on the service of
sentences provided in Article 70 of the RPC in
favor of the accused who was found guilty of
multiple violations of R.A. No. 6425, otherwise
known as the "Dangerous Drugs Act of 1972,"
considering the lack of similar rules under the
special law.
In People v. Chowdury,20 the Court applied
suppletorily Articles 17, 18 and 19 of the RPC to
define the words "principal," "accomplices" and
"accessories" under R.A. No. 8042, otherwise
known as the "Migrant Workers and Overseas
Filipinos Act of 1995," because said words were
not defined therein, although the special law
referred to the same terms in enumerating the
persons liable for the crime of illegal recruitment.
In Yu v. People,21 the Court applied suppletorily
the provisions on subsidiary imprisonment under
Article 39 of the RPC to Batas Pambansa (B.P.)
Blg. 22, otherwise known as the "Bouncing
Checks Law," noting the absence of an express
provision on subsidiary imprisonment in said
special law.
Most recently, in Ladonga v. People,22 the Court
applied suppletorily the principle of conspiracy
under Article 8 of the RPC to B.P. Blg. 22 in the
absence of a contrary provision therein.
With more reason, therefore, the principle of
conspiracy under Article 8 of the RPC may be
applied suppletorily to R.A. No. 9262 because of
the express provision of Section 47 that the RPC
shall be supplementary to said law. Thus,
general provisions of the RPC, which by their
nature, are necessarily applicable, may be
applied suppletorily.
Thus, the principle of conspiracy may be applied
to R.A. No. 9262. For once conspiracy or action
in concert to achieve a criminal design is shown,
the act of one is the act of all the conspirators,
and the precise extent or modality of
participation of each of them becomes
secondary, since all the conspirators are
principals.23
It must be further noted that Section 5 of R.A.
No. 9262 expressly recognizes that the acts of
violence against women and their children may
be committed by an offender through another,
thus:
SEC. 5. Acts of Violence Against Women and
Their Children. - The crime of violence against
women and their children is committed through
any of the following acts:
xxx
(h) Engaging in purposeful, knowing, or reckless
conduct, personally or through another,
thatalarms or causes substantial emotional or
psychological distress to the woman or her child.
This shall include, but not be limited to, the
following acts:
(1) Stalking or following the woman or her child
in public or private places;
(2) Peering in the window or lingering outside
the residence of the woman or her child;
(3) Entering or remaining in the dwelling or on
the property of the woman or her child against
her/his will;
(4) Destroying the property and personal
belongings or inflicting harm to animals or pets
of the woman or her child; and
(5) Engaging in any form of harassment or
violence; x x x. (Emphasis supplied)
In addition, the protection order that may be
issued for the purpose of preventing further acts
of violence against the woman or her child may
include
individuals other than the offending husband,
thus:
SEC. 8. Protection Orders. x x x The
protection orders that may be issued under this
Act shall include any, some or all of the following
reliefs:
(a) Prohibition of the respondent from
threatening to commit or committing, personally
or through another, any of the acts mentioned
in Section 5 of this Act; 1avvphi1.net
(b) Prohibition of the respondent from harassing,
annoying, telephoning, contacting or otherwise
communicating with the petitioner, directly or
indirectly; x x x (Emphasis supplied)
Finally, Section 4 of R.A. No. 9262 calls for a
liberal construction of the law, thus:
SEC. 4. Construction. - This Act shall be
liberally construed to promote the protection
and safety of victims of violence against women
and their children. (Emphasis supplied)
It bears mention that the intent of the statute is
the law24 and that this intent must be effectuated
by the courts. In the present case, the express
language of R.A. No. 9262 reflects the intent of
the legislature for liberal construction as will best
ensure the attainment of the object of the law
according to its true intent, meaning and spirit -
the protection and safety of victims of violence
against women and children.
Thus, contrary to the RTC's pronouncement, the
maxim "expressio unios est exclusio alterius"
finds no application here. It must be
remembered that this maxim is only an "ancillary
rule of statutory construction." It is not of
universal application. Neither is it conclusive. It
should be applied only as a means of
discovering legislative intent which is not
otherwise manifest and should not be permitted
to defeat the plainly indicated purpose of the
legislature.25
The Court notes that petitioner unnecessarily
argues at great length on the attendance of
circumstances evidencing the conspiracy or
connivance of Steven and respondents to cause
verbal, psychological and economic abuses
upon her. However, conspiracy is an evidentiary
matter which should be threshed out in a full-
blown trial on the merits and cannot be
determined in the present petition since this
Court is not a trier of facts.26 It is thus premature
for petitioner to argue evidentiary matters since
this controversy is centered only on the
determination of whether respondents may be
included in a petition under R.A. No. 9262. The
presence or absence of conspiracy can be best
passed upon after a trial on the merits.
Considering the Court's ruling that the principle
of conspiracy may be applied suppletorily to
R.A. No. 9262, the Court will no longer delve on
whether respondents may be considered
indispensable or necessary parties. To do so
would be an exercise in superfluity.
WHEREFORE, the instant petition is
GRANTED. The assailed Resolutions dated
March 7, 2005 and July 11, 2005 of the Regional
Trial Court, Branch 94, Quezon City in Civil
Case No. Q-05-54536 are hereby PARTLY
REVERSED and SET ASIDE insofar as the
dismissal of the petition against respondents is
concerned.
SO ORDERED.
MA. ALICIA AUSTRIA-MARTINEZ
Associate Justice