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GEMMA T. JACINTO, G.R. No.

162540
Petitioner, Petitioner, along with two other women, namely, Anita Busog
de Valencia y Rivera and Jacqueline Capitle, was charged before the
Present:
Regional Trial Court (RTC) of Caloocan City, Branch 131, with the

YNARES-SANTIAGO, J., crime of Qualified Theft, allegedly committed as follows:


Chairperson,
- versus - CHICO-NAZARIO, That on or about and sometime in the month
VELASCO, JR., of July 1997, in Kalookan City, Metro Manila, and
NACHURA, and within the jurisdiction of this Honorable Court, the
PERALTA, JJ. above-named accused, conspiring together and
mutually helping one another, being then all
employees of MEGA FOAM INTERNATIONAL INC.,
PEOPLE OF THE PHILIPPINES, Promulgated: herein represented by JOSEPH DYHENGCO Y CO,
Respondent. and as such had free access inside the aforesaid
establishment, with grave abuse of trust and
July 13, 2009 confidence reposed upon them with intent to gain
x----------------------------------------------------------------------------------------- and without the knowledge and consent of the owner
x thereof, did then and there willfully, unlawfully and
feloniously take, steal and deposited in their own
account, Banco De Oro Check No. 0132649 dated
DECISION July 14, 1997 in the sum of P10,000.00, representing
payment made by customer Baby Aquino to the
Mega Foam Int'l. Inc. to the damage and prejudice of
the latter in the aforesaid stated amount
PERALTA, J.: of P10,000.00.

CONTRARY TO LAW.[3]
Before us is a petition for review on certiorari filed by
petitioner Gemma T. Jacinto seeking the reversal of the Decision[1] of
the Court of Appeals (CA) in CA-G.R. CR No. 23761
The prosecution's evidence, which both the RTC and the CA found
dated December 16, 2003, affirming petitioner's conviction of the
to be more credible, reveals the events that transpired to be as
crime of Qualified Theft, and its Resolution[2] dated March 5,
follows.
2004 denying petitioner's motion for reconsideration.
In the month of June 1997, Isabelita Aquino Milabo, also known as have a phone; but they could be reached through Valencia, a
Baby Aquino, handed petitioner Banco De Oro (BDO) Check neighbor and former co-employee of Jacqueline Capitle at Mega
Number 0132649 postdated July 14, 1997 in the amount Foam.
of P10,000.00. The check was payment for Baby Aquino's purchases Valencia then told Ricablanca that the check came from Baby
from Mega Foam Int'l., Inc., and petitioner was then the collector of Aquino, and instructed Ricablanca to ask Baby Aquino to replace the
Mega Foam. Somehow, the check was deposited in the Land Bank check with cash. Valencia also told Ricablanca of a plan to take the
account of Generoso Capitle, the husband of Jacqueline Capitle; the cash and divide it equally into four: for herself, Ricablanca, petitioner
latter is the sister of petitioner and the former pricing, merchandising Jacinto and Jacqueline Capitle. Ricablanca, upon the advise of Mega
and inventory clerk of Mega Foam. Foam's accountant, reported the matter to the owner of Mega Foam,
Meanwhile, Rowena Ricablanca, another employee of Mega Foam, Joseph Dyhengco.
received a phone call sometime in the middle of July from one of Thereafter, Joseph Dyhengco talked to Baby Aquino and was able to
their customers, Jennifer Sanalila. The customer wanted to know if confirm that the latter indeed handed petitioner a BDO check
she could issue checks payable to the account of Mega Foam, for P10,000.00 sometime in June 1997 as payment for her
instead of issuing the checks payable to CASH. Said customer had purchases from Mega Foam.[4] Baby Aquino further testified that,
apparently been instructed by Jacqueline Capitle to make check sometime in July 1997, petitioner also called her on the phone to tell
payments to Mega Foam payable to CASH. Around that time, her that the BDO check bounced.[5] Verification from company
Ricablanca also received a phone call from an employee of Land records showed that petitioner never remitted the subject check to
Bank, Valenzuela Branch, who was looking for Generoso Mega Foam. However, Baby Aquino said that she had already paid
Capitle. The reason for the call was to inform Capitle that the subject Mega Foam P10,000.00 cash in August 1997 as replacement for the
BDO check deposited in his account had been dishonored. dishonored check.[6]
Generoso Capitle, presented as a hostile witness, admitted
Ricablanca then phoned accused Anita Valencia, a former depositing the subject BDO check in his bank account, but explained
employee/collector of Mega Foam, asking the latter to inform that the check came into his possession when some unknown
Jacqueline Capitle about the phone call from Land Bank regarding woman arrived at his house around the first week of July 1997 to
the bounced check.Ricablanca explained that she had to call and have the check rediscounted. He parted with his cash in exchange
relay the message through Valencia, because the Capitles did not for the check without even bothering to inquire into the identity of the
woman or her address.When he was informed by the bank that the and upon returning to the jeep, gave P5,000.00 each to Valencia and
check bounced, he merely disregarded it as he didnt know where to petitioner. Thereafter, petitioner and Valencia were arrested by NBI
find the woman who rediscounted the check. agents, who had been watching the whole time.
Meanwhile, Dyhengco filed a Complaint with the National Bureau of
Investigation (NBI) and worked out an entrapment operation with its Petitioner and Valencia were brought to the NBI office where the
agents. Ten pieces of P1,000.00 bills provided by Dyhengco were Forensic Chemist found fluorescent powder on the palmar and
marked and dusted with fluorescent powder by the NBI. Thereafter, dorsal aspects of both of their hands. This showed that petitioner
the bills were given to Ricablanca, who was tasked to pretend that and Valenciahandled the marked money. The NBI filed a criminal
she was going along with Valencia's plan. case for qualified theft against the two and one Jane Doe who was
On August 15, 2007, Ricablanca and petitioner met at the latter's later identified as Jacqueline Capitle, the wife of Generoso Capitle.
house. Petitioner, who was then holding the bounced BDO check, The defense, on the other hand, denied having taken the subject
handed over said check to Ricablanca. They originally intended to check and presented the following scenario.
proceed to Baby Aquino's place to have the check replaced with
cash, but the plan did not push through. However, they agreed to Petitioner admitted that she was a collector for Mega Foam until she
meet again on August 21, 2007. resigned on June 30, 1997, but claimed that she had stopped
On the agreed date, Ricablanca again went to petitioners collecting payments from Baby Aquino for quite some time before
house, where she met petitioner and Jacqueline Capitle. Petitioner, her resignation from the company. She further testified that, on the
her husband, and Ricablanca went to the house of Anita Valencia; day of the arrest, Ricablanca came to her mothers house, where she
Jacqueline Capitle decided not to go with the group because she was staying at that time, and asked that she accompany her
decided to go shopping. It was only petitioner, her husband, (Ricablanca) to Baby Aquino's house. Since petitioner was going for
Ricablanca and Valencia who then boarded petitioner's jeep and a pre-natal check-up at the Chinese General Hospital, Ricablanca
went on to Baby Aquino's factory.Only Ricablanca alighted from the decided to hitch a ride with the former and her husband in their jeep
jeep and entered the premises of Baby Aquino, pretending that she going to Baby Aquino's place in Caloocan City. She allegedly had no
was getting cash from Baby Aquino. However, the cash she actually idea why Ricablanca asked them to wait in their jeep, which they
brought out from the premises was the P10,000.00 marked money parked outside the house of Baby Aquino, and was very surprised
previously given to her by Dyhengco. Ricablanca divided the money
of FIVE (5) YEARS, FIVE (5) MONTHS AND
when Ricablanca placed the money on her lap and the NBI agents ELEVEN (11) DAYS, as minimum, to SIX (6)
arrested them. YEARS, EIGHT (8) MONTHS AND TWENTY (20)
DAYS, as maximum.
Anita Valencia also admitted that she was the cashier of Mega Foam
until she resigned on June 30, 1997. It was never part of her job to SO ORDERED.[7]

collect payments from customers. According to her, on the morning


of August 21, 1997, Ricablanca called her up on the phone, asking if The three appealed to the CA and, on December 16, 2003, a
she (Valencia) could accompany her (Ricablanca) to the house of Decision was promulgated, the dispositive portion of which reads,
Baby Aquino. Valencia claims that she agreed to do so, despite her thus:
admission during cross-examination that she did not know where
IN VIEW OF THE FOREGOING, the decision of the
Baby Aquino resided, as she had never been to said house. They trial court is MODIFIED, in that:
then met at the house of petitioner's mother, rode the jeep of
(a) the sentence against accused Gemma
petitioner and her husband, and proceeded to Baby Aquino's Jacinto stands;
(b) the sentence against accused
place. When they arrived at said place, Ricablanca alighted, but Anita Valencia is reduced to 4
requested them to wait for her in the jeep. After ten minutes, months arresto mayor medium.
(c) The accused Jacqueline Capitle is
Ricablanca came out and, to her surprise,Ricablanca gave her acquitted.
money and so she even asked, What is this? Then, the NBI agents
SO ORDERED.
arrested them.

The trial of the three accused went its usual course and, on October A Partial Motion for Reconsideration of the foregoing CA

4, 1999, the RTC rendered its Decision, the dispositive portion of Decision was filed only for petitioner Gemma Tubale Jacinto, but the

which reads: same was denied per Resolution dated March 5, 2004.

WHEREFORE, in view of the foregoing, the Court Hence, the present Petition for Review on Certiorari filed by petitioner
finds accused Gemma Tubale De Jacinto y
Latosa, Anita Busog De Valencia y Rivera and alone, assailing the Decision and Resolution of the CA. The issues
Jacqueline Capitle GUILTY beyond reasonable raised in the petition are as follows:
doubt of the crime of QUALIFIED THEFT and each
of them is hereby sentenced to suffer imprisonment
1. Whether or not petitioner can be convicted
of a crime not charged in the information; (6) it was done with grave abuse of confidence petitioner is
admittedly entrusted with the collection of payments from customers.
2. Whether or not a worthless check can be
the object of theft; and However, as may be gleaned from the aforementioned Articles of the
Revised Penal Code, the personal property subject of the theft
3. Whether or not the prosecution has proved
petitioner's guilt beyond must have some value, as the intention of the accused is
reasonable doubt.[8] to gain from the thing stolen. This is further bolstered by Article
The petition deserves considerable thought. 309, where the law provides that the penalty to be imposed on the
accused is dependent on the value of the thing stolen.
The prosecution tried to establish the following pieces of evidence to
In this case, petitioner unlawfully took the postdated check belonging
constitute the elements of the crime of qualified theft defined under
to Mega Foam, but the same was apparently without value, as it was
Article 308, in relation to Article 310, both of the Revised Penal Code:
subsequently dishonored. Thus, the question arises on whether the
(1) the taking of personal property - as shown by the fact that
crime of qualified theft was actually produced.
petitioner, as collector for Mega Foam, did not remit the customer's
check payment to her employer and, instead, appropriated it for
The Court must resolve the issue in the negative.
herself; (2) said property belonged to another the check belonged
to Baby Aquino, as it was her payment for purchases she made; (3) Intod v. Court of Appeals[9] is highly instructive and applicable to the
the taking was done with intent to gain this is presumed from the act present case. In Intod, the accused, intending to kill a person,
of unlawful taking and further shown by the fact that the check was peppered the latters bedroom with bullets, but since the intended
deposited to the bank account of petitioner's brother-in-law; (4) it was victim was not home at the time, no harm came to him. The trial court
done without the owners consent petitioner hid the fact that she had and the CA held Intod guilty of attempted murder. But upon review by
received the check payment from her employer's customer by not this Court, he was adjudged guilty only of an impossible crime as
remitting the check to the company; (5) it was accomplished without defined and penalized in paragraph 2, Article 4, in relation to Article
the use of violence or intimidation against persons, nor of force upon 59, both of the Revised Penal Code, because of the factual
things the check was voluntarily handed to petitioner by the impossibility of producing the crime. Pertinent portions of said
customer, as she was known to be a collector for the company; and provisions read as follows:
Article 4(2). Criminal Responsibility. - Criminal
Penal Code was further explained by the Court in Intod[10] in this
responsibility shall be incurred:
wise:
xxxx

2. By any person Under this article, the act performed by the offender
performing an act which cannot produce an offense against persons or
would be an offense against property because: (1) the commission of the offense
persons or property, were it is inherently impossible of accomplishment; or (2)
not for the inherent the means employed is either (a) inadequate or (b)
impossibility of its ineffectual.
accomplishment or on
account of the employment That the offense cannot be produced because the
of inadequate to ineffectual commission of the offense is inherently impossible of
means. (emphasis supplied) accomplishment is the focus of this petition. To be
Article 59. Penalty to be imposed in case of failure to impossible under this clause, the act intended by the
commit the crime because the means employed or offender must be by its nature one impossible of
the aims sought are impossible. - When the person accomplishment. There must be either (1) legal
intending to commit an offense has already impossibility, or (2) physical impossibility of
performed the acts for the execution of the same but accomplishing the intended act in order to qualify the
nevertheless the crime was not produced by reason act as an impossible crime.
of the fact that the act intended was by its nature one
of impossible accomplishment or because the means Legal impossibility occurs where the intended acts,
employed by such person are essentially inadequate even if completed, would not amount to a crime.
to produce the result desired by him, the court, xxxx
having in mind the social danger and the degree of
criminality shown by the offender, shall impose upon The impossibility of killing a person already dead
him the penalty of arresto mayor or a fine ranging falls in this category.
from 200 to 500 pesos.
On the other hand, factual impossibility occurs when
Thus, the requisites of an impossible crime are: (1) that the act extraneous circumstances unknown to the actor or
beyond his control prevent the consummation of the
performed would be an offense against persons or property; (2) that
intended crime. x x x [11]
the act was done with evil intent; and (3) that its accomplishment was
In Intod, the Court went on to give an example of an offense that
inherently impossible, or the means employed was either inadequate
involved factual impossibility, i.e., a man puts his hand in the coat
or ineffectual. The aspect of the inherent impossibility of
pocket of another with the intention to steal the latter's wallet, but
accomplishing the intended crime under Article 4(2) of the Revised
gets nothing since the pocket is empty.
already produced upon the tak[ing of] personal
Herein petitioner's case is closely akin to the above example of property of another without the latters consent.
factual impossibility given in Intod. In this case, petitioner performed
xxxx
all the acts to consummate the crime of qualified theft, which is a
crime against property. Petitioner's evil intent cannot be denied, as x x x when is the crime of theft produced? There
would be all but certain unanimity in the position that
the mere act of unlawfully taking the check meant for Mega Foam theft is produced when there is deprivation of
showed her intent to gain or be unjustly enriched. Were it not for the personal property due to its taking by one with intent
to gain. Viewed from that perspective, it is immaterial
fact that the check bounced, she would have received the face value to the product of the felony that the offender, once
having committed all the acts of execution for theft, is
thereof, which was not rightfully hers. Therefore, it was only due to
able or unable to freely dispose of the property
the extraneous circumstance of the check being unfunded, a fact stolen since the deprivation from the owner alone
has already ensued from such acts of execution. x
unknown to petitioner at the time, that prevented the crime from xx
being produced. The thing unlawfully taken by petitioner turned out to
xxxx
be absolutely worthless, because the check was eventually
dishonored, and Mega Foam had received the cash to replace the x x x we have, after all, held that unlawful taking,
or apoderamiento, is deemed complete from the
value of said dishonored check. moment the offender gains possession of the thing,
even if he has no opportunity to dispose of the same.
xxx
The fact that petitioner was later entrapped receiving the P5,000.00
x x x Unlawful taking, which is the deprivation of
marked money, which she thought was the cash replacement for the ones personal property, is the element which
dishonored check, is of no moment. The Court held in Valenzuela v. produces the felony in its consummated stage. x x
x [13]
People[12] that under the definition of theft in Article 308 of the
Revised Penal Code, there is only one operative act of execution by
the actor involved in theft the taking of personal property of From the above discussion, there can be no question that as of the

another.Elucidating further, the Court held, thus: time that petitioner took possession of the check meant for
Mega Foam, she had performed all the acts to consummate the
x x x Parsing through the statutory definition of theft crime of theft, had it not been impossible of accomplishment in
under Article 308, there is one apparent answer
provided in the language of the law that theft is this case. The circumstance of petitioner receiving the P5,000.00
cash as supposed replacement for the dishonored check was no
longer necessary for the consummation of the crime of qualified theft.
Obviously, the plan to convince Baby Aquino to give cash as
replacement for the check was hatched only after the check had
been dishonored by the drawee bank. Since the crime of theft is not
a continuing offense, petitioner's act of receiving the cash
replacement should not be considered as a continuation of the
theft. At most, the fact that petitioner was caught receiving the
marked money was merely corroborating evidence to strengthen
proof of her intent to gain.
Moreover, the fact that petitioner further planned to have the
dishonored check replaced with cash by its issuer is a different and
separate fraudulent scheme. Unfortunately, since said scheme was
not included or covered by the allegations in the Information, the
Court cannot pronounce judgment on the accused; otherwise, it
would violate the due process clause of the Constitution. If at all, that
fraudulent scheme could have been another possible source of
criminal liability.
IN VIEW OF THE FOREGOING, the petition is GRANTED. The
Decision of the Court of Appeals, dated December 16, 2003, and its
Resolution dated March 5, 2004, are MODIFIED. Petitioner Gemma
T. Jacinto is found GUILTY of an IMPOSSIBLE CRIME as defined
and penalized in Articles 4, paragraph 2, and 59 of the Revised
Penal Code, respectively. Petitioner is sentenced to suffer the
penalty of six (6) months of arrresto mayor, and to pay the costs.

SO ORDERED.
ARISTOTEL VALENZUELA y G. R. No. 160188
NATIVIDAD, proposition rests on a common theory expounded in two well-known
Petitioner, Present: decisions[1]rendered decades ago by the Court of Appeals, upholding

PUNO, C.J., the existence of frustrated theft of which the accused in both cases
QUISUMBING, were found guilty. However, the rationale behind the rulings has
SANTIAGO,
- versus - GUTIERREZ, never been affirmed by this Court.
CARPIO,
MARTINEZ,
CORONA, As far as can be told,[2] the last time this Court extensively
CARPIO MORALES,
considered whether an accused was guilty of frustrated or
AZCUNA,
TINGA, consummated theft was in 1918, in People v. Adiao.[3] A more
CHICO-NAZARIO,
GARCIA, cursory
VELASCO, and
PEOPLE OF THE PHILIPPINES NACHURA, JJ.
and HON. COURT OF APPEALS,
Respondents.
Promulgated: 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
June 21, 2007 occasion for us to finally and fully measure if or how frustrated theft
is susceptible to commission under the Revised Penal Code.
x----------------------------------------------------------------------------x

DECISION I.

TINGA, J.:
The basic facts are no longer disputed before us. The case stems
from an Information[6] charging petitioner Aristotel Valenzuela
This case aims for prime space in the firmament of our criminal law
(petitioner) and Jovy Calderon (Calderon) with the crime of theft.
jurisprudence. Petitioner effectively concedes having performed the
On 19 May 1994, at around 4:30 p.m., petitioner and Calderon were
felonious acts imputed against him, but instead insists that as a
sighted outside the Super Sale Club, a supermarket within the
result, he should be adjudged guilty of frustrated theft only, not the
ShoeMart (SM) complex along North EDSA, by Lorenzo Lago
felony in its consummated stage of which he was convicted. The
(Lago), a security guard who was then manning his post at the open Petitioner and Calderon were first brought to the SM security office
parking area of the supermarket. Lago saw petitioner, who was before they were transferred on the same day to the Baler Station II
wearing an identification card with the mark Receiving Dispatching of the Philippine National Police, Quezon City, for investigation. It
Unit (RDU), hauling a push cart with cases of detergent of the well- appears from the police investigation records that apart from
known Tide brand. Petitioner unloaded these cases in an open petitioner and Calderon, four (4) other persons were apprehended by
parking space, where Calderon was waiting. Petitioner then returned the security guards at the scene and delivered to police custody at
inside the supermarket, and after five (5) minutes, emerged with the Baler PNP Station in connection with the incident. However, after
more cartons of Tide Ultramatic and again unloaded these boxes to the matter was referred to the Office of the Quezon City Prosecutor,
the same area in the open parking space.[7] 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]

Thereafter, petitioner left the parking area and haled a taxi. After pleading not guilty on arraignment, at the trial, petitioner and
He boarded the cab and directed it towards the parking space where Calderon both claimed having been innocent bystanders within the
Calderon was waiting. Calderon loaded the cartons of Tide vicinity of the Super Sale Club on the afternoon of 19 May
Ultramaticinside the taxi, then boarded the vehicle. All these acts 1994 when they were haled by Lago and his fellow security guards
were eyed by Lago, who proceeded to stop the taxi as it was leaving after a commotion and brought to the Baler PNP Station. Calderon
the open parking area. When Lago asked petitioner for a receipt of alleged that on the afternoon of the incident, he was at the Super
the merchandise, petitioner and Calderon reacted by fleeing on foot, Sale Club to withdraw from his ATM account, accompanied by his
but Lago fired a warning shot to alert his fellow security guards of the neighbor, Leoncio Rosulada.[11] As the queue for the ATM was long,
incident. Petitioner and Calderon were apprehended at the scene, Calderon and Rosulada decided to buy snacks inside the
and the stolen merchandise recovered.[8] The filched items seized supermarket. It was
from the duo were four (4) cases of Tide Ultramatic, one (1) case while they were eating that they heard the gunshot fired by
of Ultra 25 grams, and three (3) additional cases of detergent, the Lago, leading them to head out of the building to check what was
goods with an aggregate value of P12,090.00.[9] 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 appellate court to deem Calderons appeal as abandoned and
Valenzuela,[13] had been at the parking lot, walking beside the nearby consequently dismissed. Before the Court of Appeals, petitioner
BLISS complex and headed to ride a tricycle going to Pag-asa, when argued that he should only be convicted of frustrated theft since at
they saw the security guard Lago fire a shot. The gunshot caused the time he was apprehended, he was never placed in a position to
him and the other people at the scene to start running, at which point freely dispose of the articles stolen.[20] However, in its Decision
he was apprehended by Lago and brought to the security office. dated 19 June 2003,[21] the Court of Appeals rejected this contention
Petitioner claimed he was detained at the security office until and affirmed petitioners conviction.[22] Hence the present Petition for
around 9:00 p.m., at which time he and the others were brought to Review,[23] which expressly seeks that petitioners conviction be
the Baler Police Station. At the station, petitioner denied having modified to only of Frustrated Theft.[24]
stolen the cartons of detergent, but he was detained overnight, and
Even in his appeal before the Court of Appeals, petitioner effectively
eventually brought to the prosecutors office where he was charged
conceded both his felonious intent and his actual participation in the
with theft.[14] During petitioners cross-examination, he admitted that
theft of several cases of detergent with a total value of P12,090.00 of
he had been employed as a bundler of GMS Marketing, assigned at
which he was charged.[25] As such, there is no cause for the Court to
the supermarket though not at SM.[15]
consider a factual scenario other than that presented by the
In a Decision[16] promulgated on 1 February 2000, the Regional Trial prosecution, as affirmed by the RTC and the Court of Appeals. The
Court (RTC) of Quezon City, Branch 90, convicted both petitioner only question to consider is whether under the given facts, the theft
and Calderon of the crime of consummated theft. They were should be deemed as consummated or merely frustrated.
sentenced to an indeterminate prison term of two (2) years of prision
correccional as minimum to seven (7) years of prision mayor as II.
maximum.[17] The RTC found credible the testimonies of the
prosecution witnesses and established the convictions on the In arguing that he should only be convicted of frustrated theft,
positive identification of the accused as perpetrators of the crime. petitioner cites[26] two decisions rendered many years ago by the
Court of Appeals: People v. Dio[27] and People v. Flores.[28] Both
Both accused filed their respective Notices of Appeal, [18] but
decisions elicit the interest of this Court, as they modified trial court
only petitioner filed a brief[19] with the Court of Appeals, causing the
convictions from consummated to frustrated theft and involve a
factual milieu that bears similarity to the present case. Petitioner to exit with the stolen property through a supervised egress, such as
invoked the same rulings in his appeal to the Court of Appeals, yet a supermarket checkout counter or a parking area pay booth, may
the appellate court did not expressly consider the import of the easily call for the application of Dio and Flores. The fact that lower
rulings when it affirmed the conviction. courts have not hesitated to lay down convictions for frustrated theft
further validates that Dio and Flores and the theories offered therein
It is not necessary to fault the Court of Appeals for giving on frustrated theft have borne some weight in our jurisprudential
short shrift to the Dio and Flores rulings since they have not yet been system. The time is thus ripe for us to examine whether those
expressly adopted as precedents by this Court. For whatever theories are correct and should continue to influence prosecutors
reasons, and judges in the future.
III.

To delve into any extended analysis of Dio and Flores, as


the occasion to define or debunk the crime of frustrated theft has not
well as the specific issues relative to frustrated theft, it is necessary
come to pass before us. Yet despite the silence on our
part, Dio and Flores have attained a level of renown reached by very to first refer to the basic rules on the three stages of crimes under
our Revised Penal Code.[30]
few other appellate court rulings. They are comprehensively
discussed in the most popular of our criminal law annotations, [29] and
Article 6 defines those three stages, namely the consummated,
studied in criminal law classes as textbook examples of frustrated
frustrated and attempted felonies. A felony is consummated when all
crimes or even as definitive of frustrated theft.
the elements necessary for its execution and accomplishment are
present. It is frustrated when the offender performs all the acts of
More critically, the factual milieu in those cases is hardly akin
execution which would produce the felony as a consequence but
to the fanciful scenarios that populate criminal law exams more than
which, nevertheless, do not produce it by reason of causes
they actually occur in real life. Indeed, if we finally say
that Dio and Flores are doctrinal, such conclusion could profoundly independent of the will of the perpetrator. Finally, it is attempted
when the offender commences the commission of a felony directly by
influence a multitude of routine theft prosecutions, including
overt acts, and does not perform all the acts of execution which
commonplace shoplifting. Any scenario that involves the thief having
should produce the felony by reason of some cause or accident In contrast, the determination of whether a crime is frustrated or
other than his own spontaneous desistance. consummated necessitates an initial concession that all of the acts of
execution have been performed by the offender. The critical
Each felony under the Revised Penal Code has a subjective phase, distinction instead is whether the felony itself was actually produced
or that portion of the acts constituting the crime included between the by the acts of execution. The determination of whether the felony
act which begins the commission of the crime and the last act was produced after all the acts of execution had been performed
performed by the offender which, with prior acts, should result in the hinges on the particular statutory definition of the felony. It is the
consummated crime.[31] After that point has been breached, the statutory definition that generally furnishes the elements of each
subjective phase ends and the objective phase begins. [32] It has been crime under the Revised Penal Code, while the elements in turn
held that if the offender never passes the subjective phase of the unravel the particular requisite acts of execution and accompanying
offense, the crime is merely attempted.[33] On the other hand, the criminal intent.
subjective phase is completely passed in case of frustrated crimes,
for in such instances, [s]ubjectively the crime is complete.[34] The long-standing Latin maxim actus non facit reum, nisi mens sit
rea supplies an important characteristic of a crime, that ordinarily,
Truly, an easy distinction lies between consummated and evil intent must unite with an unlawful act for there to be a crime, and
frustrated felonies on one hand, and attempted felonies on the other. accordingly, there can be no crime when the criminal mind is
So long as the offender fails to complete all the acts of execution wanting.[35] Accepted in this jurisdiction as material in crimes mala in
despite commencing the commission of a felony, the crime is se,[36] mens rea has been defined before as a guilty mind, a guilty or
undoubtedly in the attempted stage. Since the specific acts of wrongful purpose or criminal intent,[37] and essential for criminal
execution that define each crime under the Revised Penal Code are liability.[38] It follows that the statutory definition of our mala in
generally enumerated in the code itself, the task of ascertaining se crimes must be able to supply what the mens rea of the crime is,
whether a crime is attempted only would need to compare the acts and indeed the U.S. Supreme Court has comfortably held that a
actually performed by the accused as against the acts that constitute criminal law that contains no mens rea requirement infringes on
the felony under the Revised Penal Code. constitutionally protected rights.[39] The criminal statute must also
provide for the overt acts that constitute the crime. For a crime to
Art. 308. Who are liable for theft. Theft is
exist in our legal law, it is not enough that mens rea be shown; there
committed by any person who, with intent to gain but
must also be an actus reus.[40] 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
It is from the actus reus and the mens rea, as they find
same to the local authorities or to its
expression in the criminal statute, that the felony is produced. As a owner;
postulate in the craftsmanship of constitutionally sound laws, it is 2. Any person who, after having
maliciously damaged the property of
extremely preferable that the language of the law expressly provide another, shall remove or make use
when the felony is produced. Without such provision, disputes would of the fruits or object of the damage
caused by him; and
inevitably ensue on the elemental question whether or not a crime
3. Any person who shall enter an
was committed, thereby presaging the undesirable and legally inclosed estate or a field where
trespass is forbidden or which
dubious set-up under which the judiciary is assigned the legislative belongs to another and without the
role of defining crimes. Fortunately, our Revised Penal Code does consent of its owner, shall hunt or
fish upon the same or shall gather
not suffer from such infirmity. From the statutory definition of any cereals, or other forest or farm
felony, a decisive passage or term is embedded which attests when products.

the felony is produced by the acts of execution. For example, the


statutory definition of murder or homicide expressly uses the phrase Article 308 provides for a general definition of theft, and three
shall kill another, thus making it clear that the felony is produced by alternative and highly idiosyncratic means by which theft may be
the death of the victim, and conversely, it is not produced if the victim committed.[41] In the present discussion, we need to concern
survives. ourselves only with the general definition since it was under it that
the prosecution of the accused was undertaken and sustained. On
We next turn to the statutory definition of theft. Under Article 308 of the face of the definition, there is only one operative act of execution
the Revised Penal Code, its elements are spelled out as follows: 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. In Spanish law, animo lucrandi was compounded
with apoderamiento, or unlawful taking, to characterize theft. Justice
Indeed, we have long recognized the following elements of Regalado notes that the concept of apoderamiento once had a
theft as provided for in Article 308 of the Revised Penal Code, controversial interpretation and application. Spanish law had already
namely: (1) that there be taking of personal property; (2) that said discounted the belief that mere physical taking was constitutive
property belongs to another; (3) that the taking be done with intent to of apoderamiento, finding that it had to be coupled with the intent to
gain; (4) that the taking be done without the consent of the owner; appropriate the object in order to constitute apoderamiento; and to
and (5) that the taking be accomplished without the use of violence appropriate means to deprive the lawful owner of the
against or intimidation of persons or force upon things.[42] thing.[47] However, a conflicting line of cases decided by the Court of
Appeals ruled, alternatively, that there must be permanency in the
In his commentaries, Judge Guevarra traces the history of taking[48] or an intent to permanently deprive the owner of the stolen
the definition of theft, which under early Roman law as defined by property;[49] or that there was no need for permanency in the taking
Gaius, was so broad enough as to encompass any kind of physical or in its intent, as the mere temporary possession by the offender or
handling of property belonging to another against the will of the disturbance of the proprietary rights of the owner already
owner,[43] a definition similar to that by Paulus that a thief handles constituted apoderamiento.[50] Ultimately, as Justice Regalado notes,
(touches, moves) the property of another.[44] However, with the the Court adopted the latter thought that there was no need of an
Institutes of Justinian, the idea had taken hold that more than mere intent to permanently deprive the owner of his property to constitute
physical handling, there must further be an intent of acquiring gain an unlawful taking.[51]
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]
So long as the descriptive circumstances that qualify the taking are to when a particular felony is not produced, despite the commission
present, including animo lucrandi and apoderamiento, the completion of all the acts of execution.
of the operative act that is the taking of personal property of another
establishes, at least, that the transgression went beyond the So, in order to ascertain whether the theft is consummated or
attempted stage. As applied to the present case, the moment frustrated, it is necessary to inquire as to how exactly is the felony of
petitioner obtained physical possession of the cases of detergent theft produced. Parsing through the statutory definition of theft under
and loaded them in the pushcart, such seizure motivated by intent to Article 308, there is one apparent answer provided in the language of
gain, completed without need to inflict violence or intimidation the law that theft is already produced upon the tak[ing of] personal
against persons nor force upon things, and accomplished without the property of another without the latters consent.
consent of the SM Super Sales Club, petitioner forfeited the
extenuating benefit a conviction for only attempted theft would have U.S. v. Adiao[53] apparently supports that notion. Therein, a customs
afforded him. inspector was charged with theft after he abstracted a leather belt
from the baggage of a foreign national and secreted the item in his
On the critical question of whether it was consummated or frustrated desk at the Custom House. At no time was the accused able to get
theft, we are obliged to apply Article 6 of the Revised Penal Code to the merchandise out of the Custom House, and it appears that he
ascertain the answer. Following that provision, the theft would have was under observation during the entire transaction.[54] Based
been frustrated only, once the acts committed by petitioner, if apparently on those two circumstances, the trial court had found him
ordinarily sufficient to produce theft as a consequence, do not guilty, instead, of frustrated theft. The Court reversed, saying that
produce [such theft] by reason of causes independent of the will of neither circumstance was decisive, and holding instead that the
the perpetrator. There are clearly two determinative factors to accused was guilty of consummated theft, finding that all the
consider: that the felony is not produced, and that such failure is due elements of the completed crime of theft are present.[55] In support of
to causes independent of the will of the perpetrator. The second its conclusion that the theft was consummated, the Court cited three
factor ultimately depends on the evidence at hand in each particular (3) decisions of the Supreme Court of Spain, the discussion of which
case. The first, however, relies primarily on a doctrinal definition we replicate below:
attaching to the individual felonies in the Revised Penal Code [52] as
The defendant was charged with the theft of some appropriate the same, he executed all the acts
fruit from the land of another. As he was in the act of necessary to constitute the crime which was thereby
taking the fruit[,] he was seen by a policeman, yet it produced; only the act of making use of the thing
did not appear that he was at that moment caught by having been frustrated, which, however, does not go
the policeman but sometime later. The court said: "[x to make the elements of the consummated crime."
x x] The trial court did not err [x x x ] in considering (Decision of the Supreme Court of Spain, June 13,
the crime as that of consummated theft instead of 1882.)[56]
frustrated theft inasmuch as nothing appears in the
record showing that the policemen who saw the
accused take the fruit from the adjoining land It is clear from the facts of Adiao itself, and the three (3) Spanish
arrested him in the act and thus prevented him from
taking full possession of the thing stolen and even its decisions cited therein, that the criminal actors in all these cases had
utilization by him for an interval of time." (Decision of been able to obtain full possession of the personal property prior to
the Supreme Court of Spain, October 14, 1898.)
their apprehension. The interval between the commission of the acts
Defendant picked the pocket of the offended of theft and the apprehension of the thieves did vary, from sometime
party while the latter was hearing mass in a church.
The latter on account of the solemnity of the act, later in the 1898 decision; to the very moment the thief had just
although noticing the theft, did not do anything to
extracted the money in a purse which had been stored as it was in
prevent it. Subsequently, however, while the
defendant was still inside the church, the offended the 1882 decision; and before the thief had been able to spirit the
party got back the money from the defendant. The
court said that the defendant had performed all the item stolen from the building where the theft took place, as had
acts of execution and considered the theft as happened in Adiao and the 1897 decision. Still, such intervals proved
consummated. (Decision of the Supreme Court of
Spain, December 1, 1897.) 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 defendant penetrated into a room of a
certain house and by means of a key opened up a the property belonging to another.
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 In 1929, the Court was again confronted by a claim that an accused
then he placed the money over the cover of the
case; just at this moment he was caught by two was guilty only of frustrated rather than consummated theft. The
guards who were stationed in another room near-by. case is People v. Sobrevilla,[57] where the accused, while in the midst
The court considered this as consummated robbery,
and said: "[x x x] The accused [x x x] having of a crowd in a public market, was already able to abstract a
materially taken possession of the money from the pocketbook from the trousers of the victim when the latter, perceiving
moment he took it from the place where it had been,
and having taken it with his hands with intent to 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- the port area of the South Harbor, to unload a truckload of materials
book and let go of the defendant, who was afterwards caught by a to waiting U.S. Army personnel. After he had finished unloading,
policeman.[58] In rejecting the contention that only frustrated theft was accused drove away his truck from the Port, but as he was
established, the Court simply said, without further comment or approaching a checkpoint of the Military Police, he was stopped by
elaboration: an M.P. who inspected the truck and found therein three boxes of
army rifles. The accused later contended that he had been stopped
We believe that such a contention is groundless.
The [accused] succeeded in taking the pocket- by four men who had loaded the boxes with the agreement that they
book, and that determines the crime of theft. If were to meet him and retrieve the rifles after he had passed the
the pocket-book was afterwards recovered, such
recovery does not affect the [accuseds] criminal checkpoint. The trial court convicted accused of consummated theft,
liability, which arose from the [accused] having but the Court of Appeals modified the conviction, holding instead that
succeeded in taking the pocket-book.[59]
only frustrated theft had been committed.
If anything, Sobrevilla is consistent with Adiao and the Spanish
Supreme Court cases cited in the latter, in that the fact that the
In doing so, the appellate court pointed out that the evident
offender was able to succeed in obtaining physical possession of the
intent of the accused was to let the boxes of rifles pass through the
stolen item, no matter how momentary, was able to consummate the
checkpoint, perhaps in the belief that as the truck had already
theft.
unloaded its cargo inside the depot, it would be allowed to pass
through the check point without further investigation or
Adiao, Sobrevilla and the Spanish Supreme Court decisions
checking.[60] This point was deemed material and indicative that the
cited therein contradict the position of petitioner in this case. Yet to
theft had not been fully produced, for the Court of Appeals
simply affirm without further comment would be disingenuous, as
pronounced that the fact determinative of consummation is the ability
there is another school of thought on when theft is consummated, as
of the thief to dispose freely of the articles stolen, even if it were
reflected in the Dio and Flores decisions.
more or less momentary.[61] Support for this proposition was drawn
from a decision of the Supreme Court of Spain dated 24 January
Dio was decided by the Court of Appeals in 1949, some 31
1888 (1888 decision), which was quoted as follows:
years after Adiao and 15 years before Flores. The accused therein, a
driver employed by the United States Army, had driven his truck into
Considerando que para que el apoderamiento
de la cosa sustraida sea determinate de la consumacion circumstances [herein] and in [Dio].[64] Such conclusion is borne out
del delito de hurto es preciso que so haga en by the facts in Flores. The accused therein, a checker employed by
circunstancias tales que permitan al sustractor la libre
disposicion de aquella, siquiera sea mas o menos the Luzon Stevedoring Company, issued a delivery receipt for one
momentaneamente, pues de otra suerte, dado el empty sea van to the truck driver who had loaded the purportedly
concepto del delito de hurto, no puede decirse en
realidad que se haya producido en toda su extension, empty sea van onto his truck at the terminal of the stevedoring
sin materializar demasiado el acto de tomar la cosa company. The truck driver proceeded to show the delivery receipt to
ajena.[62]
the guard on duty at the gate of the terminal. However, the guards
insisted on inspecting the van, and discovered that the empty sea
Integrating these considerations, the Court of Appeals then
van had actually contained other merchandise as well.[65] The
concluded:
accused was prosecuted for theft qualified by abuse of confidence,
This court is of the opinion that in the case and found himself convicted of the consummated crime. Before the
at bar, in order to make the booty subject to the
Court of Appeals, accused argued in the alternative that he was
control and disposal of the culprits, the articles
stolen must first be passed through the M.P. check guilty only of attempted theft, but the appellate court pointed out that
point, but since the offense was opportunely
discovered and the articles seized after all the acts there was no intervening act of spontaneous desistance on the part
of execution had been performed, but before the loot of the accused that literally frustrated the theft. However, the Court of
came under the final control and disposal of the
looters, the offense can not be said to have been Appeals, explicitly relying on Dio, did find that the accused was guilty
fully consummated, as it was frustrated by the timely only of frustrated, and not consummated, theft.
intervention of the guard. The offense committed,
therefore, is that of frustrated theft.[63]
As noted earlier, the appellate court admitted it found no
Dio thus laid down the theory that the ability of the actor to substantial variance between Dio and Flores then before it. The
freely dispose of the items stolen at the time of apprehension is prosecution in Flores had sought to distinguish that case from Dio,
determinative as to whether the theft is consummated or frustrated. citing a traditional ruling which unfortunately was not identified in the
This theory was applied again by the Court of Appeals some 15 decision itself. However, the Court of Appeals pointed out that the
years later, in Flores, a case which according to the division of the said traditional ruling was qualified by the words is placed in a
court that decided it, bore no substantial variance between the 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 different conclusion as to whether there could have been free
compound, the petitioner could not have disposed of the goods at disposition, as in the case where the chattel involved was
once. At the same time, the Court of Appeals conceded that [t]his is of much less bulk and more common x x x, [such] as money x x x.[68]
entirely different from the case where a much less bulk and more
common thing as money was the object of the crime, where freedom In his commentaries, Chief Justice Aquino makes the
to dispose of or make use of it is palpably less restricted,[67] though following pointed observation on the import of the Dio ruling:
no further qualification was offered what the effect would have been
There is a ruling of the Court of Appeals that
had that alternative circumstance been present instead. 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]],
Synthesis of the Dio and Flores rulings is in order. The theft is consummated upon the voluntary and
determinative characteristic as to whether the crime of theft was malicious taking of property belonging to another
which is realized by the material occupation of the
produced is the ability of the actor to freely dispose of the articles thing whereby the thief places it under his control
stolen, even if it were only momentary. Such conclusion was drawn and in such a situation that he could dispose of it at
once. This ruling seems to have been based on
from an 1888 decision of the Supreme Court of Spain which had Viadas opinion that in order the theft may be
consummated, es preciso que se haga en
pronounced that in determining whether theft had been
circumstancias x x x [[70]][71]
consummated, es preciso que so haga en circunstancias tales que
permitan al sustractor de aquella, siquiera sea mas o menos
In the same commentaries, Chief Justice Aquino, concluding
momentaneamente. The qualifier siquiera sea mas o menos
from Adiao and other cases, also states that [i]n theft or robbery the
momentaneamente proves another important consideration, as it
crime is consummated after the accused had material possession of
implies that if the actor was in a capacity to freely dispose of the
the thing with intent to appropriate the same, although his act of
stolen items before apprehension, then the theft could be deemed
making use of the thing was frustrated.[72]
consummated. Such circumstance was not present in
either Dio or Flores, as the stolen items in both cases were retrieved
There are at least two other Court of Appeals rulings that are
from the actor before they could be physically extracted from the
at seeming variance with the Dio and Flores rulings. People v.
guarded compounds from which the items were filched. However, as
Batoon[73] involved an accused who filled a container with gasoline
implied in Flores, the character of the item stolen could lead to a
from a petrol pump within view of a police detective, who followed foundational basis of the concept of frustrated theft itself, the
the accused onto a passenger truck where the arrest was made. question can even be asked whether there is really such a crime in
While the trial court found the accused guilty of frustrated qualified the first place.
theft, the Court of Appeals held that the accused was guilty of
consummated qualified theft, finding that [t]he facts of the cases IV.
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 The Court in 1984 did finally rule directly that an accused
of theft.[74] was guilty of frustrated, and not consummated, theft. As we
undertake this inquiry, we have to reckon with the import of this
In People v. Espiritu,[75] the accused had removed nine Courts 1984 decision in Empelis v. IAC.[78]
pieces of hospital linen from a supply depot and loaded them onto a
truck. However, as the truck passed through the checkpoint, the As narrated in Empelis, the owner of a coconut plantation
stolen items were discovered by the Military Police running the had espied four (4) persons in the premises of his plantation, in the
checkpoint. Even though those facts clearly admit to similarity with act of gathering and tying some coconuts. The accused were
those in Dio, the Court of Appeals held that the accused were guilty surprised by the owner within the plantation as they were carrying
of consummated theft, as the accused were able to take or get hold with them the coconuts they had gathered. The accused fled the
of the hospital linen and that the only thing that was frustrated, which scene, dropping the coconuts they had seized, and were
does not constitute any element of theft, is the use or benefit that the subsequently arrested after the owner reported the incident to the
thieves expected from the commission of the offense.[76] police. After trial, the accused were convicted of qualified theft, and
the issue they raised on appeal was that they were guilty only of
In pointing out the distinction between Dio and Espiritu, simple theft. The Court affirmed that the theft was qualified, following
Reyes wryly observes that [w]hen the meaning of an element of a Article 310 of the Revised Penal Code,[79] but further held that the
felony is controversial, there is bound to arise different rulings as to accused were guilty only of frustrated qualified theft.
the stage of execution of that felony. [77] Indeed, we can discern from It does not appear from the Empelis decision that the issue
this survey of jurisprudence that the state of the law insofar as of whether the theft was consummated or frustrated was raised by
frustrated theft is concerned is muddled. It fact, given the disputed any of the parties. What does appear, though, is that the disposition
of that issue was contained in only two sentences, which we the crime was only attempted, especially given that the acts were not
reproduce in full: performed because of the timely arrival of the owner, and not
because of spontaneous desistance by the offenders.
However, the crime committed is only
frustrated qualified theft because petitioners were
not able to perform all the acts of execution which For these reasons, we cannot attribute weight to Empelis as we
should have produced the felony as a consequence.
They were not able to carry the coconuts away from consider the present petition. Even if the two sentences we had cited
the plantation due to the timely arrival of the actually aligned with the definitions provided in Article 6 of the
owner.[80]
Revised Penal Code, such passage bears no reflection that it is the
product of the considered evaluation of the relevant legal or
No legal reference or citation was offered for this averment,
jurisprudential thought. Instead, the passage is offered as if it were
whether Dio, Flores or the Spanish authorities who may have
sourced from an indubitable legal premise so settled it required no
bolstered the conclusion. There are indeed evident problems with
further explication.
this formulation in Empelis.

Notably, Empelis has not since been reaffirmed by the Court, or even
Empelis held that the crime was only frustrated because the actors
cited as authority on theft. Indeed, we cannot see how Empelis can
were not able to perform all the acts of execution which should
contribute to our present debate, except for the bare fact that it
have produced the felon as a consequence.[81] However, per Article
proves that the Court had once deliberately found an accused guilty
6 of the Revised Penal Code, the crime is frustrated when the
of frustrated theft. Even if Empelis were considered as a precedent
offender performs all the acts of execution, though not producing
for frustrated theft, its doctrinal value is extremely compromised by
the felony as a result. If the offender was not able to perform all the
the erroneous legal premises that inform it, and also by the fact that
acts of execution, the crime is attempted, provided that the non-
it has not been entrenched by subsequent reliance.
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
Thus, Empelis does not compel us that it is an insurmountable given However, the said code would be revised again in 1932, and several
that frustrated theft is viable in this jurisdiction. Considering the times thereafter. In fact, under the Codigo Penal Espaol de 1995, the
flawed reasoning behind its conclusion of frustrated theft, it cannot crime of theft is now simply defined as [e]l que, con nimo de lucro,
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. tomare las cosas muebles ajenas sin la voluntad de su dueo ser
castigado[82]
V.
Notice that in the 1870 and 1995 definition of theft in the
At the time our Revised Penal Code was enacted in 1930, the penal code of Spain, la libre disposicion of the property is not an
1870 Codigo Penal de Espaa was then in place. The definition of the element or a statutory characteristic of the crime. It does appear that
crime of theft, as provided then, read as follows: the principle originated and perhaps was fostered in the realm of
Spanish jurisprudence.
Son reos de hurto:

1. Los que con nimo de lucrarse, y sin volencia o The oft-cited Salvador Viada adopted a question-answer
intimidacin en las personas ni fuerza en las
cosas, toman las cosas muebles ajenas sin la form in his 1926 commentaries on the 1870 Codigo Penal de Espaa.
voluntad de su dueo. Therein, he raised at least three questions for the reader whether the

2. Los que encontrndose una cosa perdida y crime of frustrated or consummated theft had occurred. The passage
sabiendo quin es su dueo se la apropriaren co cited in Dio was actually utilized by Viada to answer the question
intencin de lucro.
whether frustrated or consummated theft was committed [e]l que en
3. Los daadores que sustrajeren o utilizaren los el momento mismo de apoderarse de la cosa ajena, vindose
frutos u objeto del dao causado, salvo los casos
previstos en los artculos 606, nm. 1.0; 607, sorprendido, la arroja al suelo.[83] Even as the answer was as stated
nms, 1.0, 2.0 y 3.0; 608, nm. 1.0; 611; 613;
in Dio, and was indeed derived from the 1888 decision of the
Segundo prrafo del 617 y 618.
Supreme Court of Spain, that decisions factual predicate occasioning
the statement was apparently very different from Dio, for it appears
It was under the ambit of the 1870 Codigo Penal that the
that the 1888 decision involved an accused who was surprised by
aforecited Spanish Supreme Court decisions were handed down.
La doctrina hoy generalmente sustentada
the employees of a haberdashery as he was abstracting a layer of considera que el hurto se consuma cuando la cosa
clothing off a mannequin, and who then proceeded to throw away the queda de hecho a la disposicin del agente. Con este
criterio coincide la doctrina sentada ltimamente porla
garment as he fled.[84] jurisprudencia espaola que generalmente considera
consumado el hurto cuando el culpable coge o
Nonetheless, Viada does not contest the notion of frustrated aprehende la cosa y sta quede por tiempo ms o
menos duradero bajo su poder. El hecho de que ste
theft, and willingly recites decisions of the Supreme Court of Spain pueda aprovecharse o no de lo hurtado es
that have held to that effect.[85] A few decades later, the esteemed indiferente. El delito no pierde su carcter de
consumado aunque la cosa hurtada sea devuelta
Eugenio Cuello Caln pointed out the inconsistent application by the por el culpable o fuere recuperada. No se concibe
la frustracin, pues es muy dificil que el que hace
Spanish Supreme Court with respect to frustrated theft.
cuanto es necesario para la
consumacin del hurto no lo consume
Hay frustracin cuando los reos fueron efectivamente, los raros casos que nuestra
sorprendidos por las guardias cuando llevaban los jurisprudencia, muy vacilante, declara hurtos
sacos de harino del carro que los conducia a otro frustrados son verdaderos delitos
que tenan preparado, 22 febrero 1913; cuando el consumados.[87] (Emphasis supplied)
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" Cuello Calns submissions cannot be lightly ignored. Unlike
frustracin, si existe apoderamiento, pero el culpale
no llega a disponer de la cosa, 12 abril 1930; hay Viada, who was content with replicating the Spanish Supreme Court
frustracin "muy prxima" cuando el culpable es decisions on the matter, Cuello Caln actually set forth his own
detenido por el perjudicado acto seguido de cometer
la sustraccin, 28 febrero 1931. Algunos fallos han thought that questioned whether theft could truly be frustrated,
considerado la existencia de frustracin cuando, since pues es muy dificil que el que hace cuanto es necesario para
perseguido el culpable o sorprendido en el momento
de llevar los efectos hurtados, los abandona, 29 la consumacin del hurto no lo consume efectivamente. Otherwise
mayo 1889, 22 febrero 1913, 11 marzo 1921; esta
put, it would be difficult to foresee how the execution of all the acts
doctrina no es admissible, stos, conforme a lo antes
expuesto, son hurtos consumados.[86] necessary for the completion of the crime would not produce the
effect of theft.
Ultimately, Cuello Caln attacked the very idea that frustrated
theft is actually possible:
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 of the law as it defines the crime. It is Congress, not the courts,
Court that there is no crime of frustrated theft in this jurisdiction will which is to define a crime, and ordain its punishment. [88] The courts
not lead to scholastic pariah, for such a submission is hardly cannot arrogate the power to introduce a new element of a crime
heretical in light of Cuello Calns position. which was unintended by the legislature, or redefine a crime in a
manner that does not hew to the statutory language. Due respect for
Accordingly, it would not be intellectually disingenuous for the prerogative of Congress in defining crimes/felonies constrains
the Court to look at the question from a fresh perspective, as we are the Court to refrain from a broad interpretation of penal laws where a
not bound by the opinions of the respected Spanish commentators, narrow interpretation is appropriate. The Court must take heed of
conflicting as they are, to accept that theft is capable of commission language, legislative history and purpose, in order to strictly
in its frustrated stage. Further, if we ask the question whether there determine the wrath and breath of the conduct the law forbids.[89]
is a mandate of statute or precedent that must compel us to adopt
the Dioand Flores doctrines, the answer has to be in the negative. If With that in mind, a problem clearly emerges with
we did so, it would arise not out of obeisance to an inexorably higher the Dio/Flores dictum. The ability of the offender to freely dispose of
command, but from the exercise of the function of statutory the property stolen is not a constitutive element of the crime of theft.
interpretation that comes as part and parcel of judicial review, and a It finds no support or extension in Article 308, whether as a
function that allows breathing room for a variety of theorems in descriptive or operative element of theft or as the mens
competition until one is ultimately adopted by this Court. 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
V. Article 308 of the Revised Penal Code are: (1) that there be taking of
The foremost predicate that guides us as we explore the personal property; (2) that said property belongs to another; (3) that
matter is that it lies in the province of the legislature, through statute, the taking be done with intent to gain; (4) that the taking be done
to define what constitutes a particular crime in this jurisdiction. It is without the consent of the owner; and (5) that the taking be
the legislature, as representatives of the sovereign people, which accomplished without the use of violence against or intimidation of
determines which acts or combination of acts are criminal in nature. persons or force upon things.[90]
Judicial interpretation of penal laws should be aligned with what was
the evident legislative intent, as expressed primarily in the language
Such factor runs immaterial to the statutory definition of theft, degree of control over the stolen item. But even if this were correct,
which is the taking, with intent to gain, of personal property of the effect would be to downgrade the crime to its attempted, and not
another without the latters consent. While the Dio/Flores dictum is frustrated stage, for it would mean that not all the acts of execution
considerate to the mindset of the offender, the statutory definition of have not been completed, the taking not having been accomplished.
theft considers only the perspective of intent to gain on the part of Perhaps this point could serve as fertile ground for future discussion,
the offender, compounded by the deprivation of property on the part but our concern now is whether there is indeed a crime of frustrated
of the victim. theft, and such consideration proves ultimately immaterial to that
question. Moreover, such issue will not apply to the facts of this
For the purpose of ascertaining whether theft is susceptible particular case. We are satisfied beyond reasonable doubt that the
of commission in the frustrated stage, the question is again, when is taking by the petitioner was completed in this case. With intent to
the crime of theft produced? There would be all but certain unanimity gain, he acquired physical possession of the stolen cases of
in the position that theft is produced when there is deprivation of detergent for a considerable period of time that he was able to drop
personal property due to its taking by one with intent to gain. Viewed these off at a spot in the parking lot, and long enough to load these
from that perspective, it is immaterial to the product of the felony that onto a taxicab.
the offender, once having committed all the acts of execution for
theft, is able or unable to freely dispose of the property stolen since Indeed, we have, after all, held that unlawful taking,
the deprivation from the owner alone has already ensued from such or apoderamiento, is deemed complete from the moment the
acts of execution. This conclusion is reflected in Chief Justice offender gains possession of the thing, even if he has no opportunity
Aquinos commentaries, as earlier cited, that [i]n theft or robbery the to dispose of the same.[92] And long ago, we asserted in People
crime is consummated after the accused had material possession of v. Avila:[93]
the thing with intent to appropriate the same, although his act of
x x x [T]he most fundamental notion in the crime of
making use of the thing was frustrated.[91] 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
It might be argued, that the ability of the offender to freely must be effected animo lucrandi and without the
dispose of the property stolen delves into the concept of taking itself, consent of the owner; and it will be here noted that
the definition does not require that the taking should
in that there could be no true taking until the actor obtains such
be effected against the will of the owner but merely
that it should be without his consent, a distinction of Court would have carved a viable means for offenders to seek a
no slight importance.[94] mitigated penalty under applied circumstances that do not admit of
easy classification. It is difficult to formulate definite standards as to
Insofar as we consider the present question, unlawful taking when a stolen item is susceptible to free disposal by the thief. Would
is most material in this respect. Unlawful taking, which is the this depend on the psychological belief of the offender at the time of
deprivation of ones personal property, is the element which produces the commission of the crime, as implied in Dio?
the felony in its consummated stage. At the same time, without Or, more likely, the appreciation of several classes of factual
unlawful taking as an act of execution, the offense could only be circumstances such as the size and weight of the property, the
attempted theft, if at all. 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
With these considerations, we can only conclude that under offender is expected to encounter upon fleeing with the stolen
Article 308 of the Revised Penal Code, theft cannot have a frustrated property, the manner in which the stolen item had been housed or
stage. Theft can only be attempted or consummated. stored; and quite frankly, a whole lot more. Even the fungibility or
edibility of the stolen item would come into account, relevant as that
Neither Dio nor Flores can convince us otherwise. Both fail would be on whether such property is capable of free disposal at any
to consider that once the offenders therein obtained possession over stage, even after the taking has been consummated.
the stolen items, the effect of the felony has been produced as there
has been deprivation of property. The presumed inability of the All these complications will make us lose sight of the fact
offenders to freely dispose of the stolen property does not negate the that beneath all the colorful detail, the owner was indeed deprived of
fact that the owners have already been deprived of their right to property by one who intended to produce such deprivation for
possession upon the completion of the taking. reasons of gain. For such will remain the presumed fact if frustrated
theft were recognized, for therein, all of the acts of execution,
Moreover, as is evident in this case, the adoption of the rule including the taking, have been completed. If the facts establish the
that the inability of the offender to freely dispose of the stolen non-completion of the taking due to these peculiar circumstances,
property frustrates the theft would introduce a convenient defense for the effect could be to downgrade the crime to the attempted stage,
the accused which does not reflect any legislated intent,[95] since the as not all of the acts of execution have been performed. But once all
these acts have been executed, the taking has been completed, considerable amendments to our Revised Penal Code in order that
causing the unlawful deprivation of property, and ultimately the frustrated theft may be recognized. Our deference to Viada yields to
consummation of the theft. the higher reverence for legislative intent.

Maybe the Dio/Flores rulings are, in some degree, grounded WHEREFORE, the petition is DENIED. Costs against
in common sense. Yet they do not align with the legislated petitioner.
framework of the crime of theft. The Revised Penal Code provisions SO ORDERED.
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 Dioalone 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
G.R. Nos. 86883-85 January 29, 1993 In the aftermath of the murder, police authorities launched a massive
manhunt which resulted in the capture of the perpetrators except
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, Arsenio Villamor, Jr., and two unidentified persons who eluded arrest
vs. and still remain at large.
NORBERTO MANERO, JR., EDILBERTO MANERO, ELPIDIO
MANERO, SEVERINO LINES, RUDY LINES, EFREN PLEAGO, Informations for Murder,3 Attempted Murder4 and Arson5 were
ROGER BEDAO, RODRIGO ESPIA, ARSENIO VILLAMOR, JR., accordingly filed against those responsible for the frenzied orgy of
JOHN DOE and PETER DOE, accused. violence that fateful day of 11 April 1985. As these cases arose from
the same occasion, they were all consolidated in Branch 17 of the
SEVERINO LINES, RUDY LINES, EFREN PLEAGO and ROGER Regional Trial Court of Kidapawan, Cotabato.6
BENDAO, accused-appellants.
After trial, the court a quo held
The Solicitor General for plaintiff-appellee.
WHEREFORE . . . the Court finds the accused
Romeo P. Jorge for accused-appellants. Norberto Manero, Jr. alias Commander Bucay,
Edilberto Manero alias Edil, Elpidio Manero,
Severino Lines, Rudy Lines, Rodrigo Espia alias
Rudy, Efren Pleago and Roger Bedao GUILTY
beyond reasonable doubt of the offense of Murder,
BELLOSILLO, J.: and with the aggravating circumstances of superior
strength and treachery, hereby sentences each of
This was gruesome murder in a main thoroughfare an hour before them to a penalty of imprisonment of reclusion
sundown. A hapless foreign religious minister was riddled with perpetua; to pay the Pontifical Institute of Foreign
bullets, his head shattered into bits and pieces amidst the revelling of Mission (PIME) Brothers, the congregation to which
his executioners as they danced and laughed around their quarry, Father Tulio Favali belonged, a civil indemnity of
chanting the tune "Mutya Ka Baleleng", a popular regional folk song, P12,000.00; attorney's fees in the sum of
kicking and scoffing at his prostrate, miserable, spiritless figure that P50,000.00 for each of the eight (8) accused or a
was gasping its last. Seemingly unsatiated with the ignominy of their total sum of P400,000.00; court appearance fee of
manslaughter, their leader picked up pieces of the splattered brain P10,000.00 for every day the case was set for trial;
and mockingly displayed them before horrified spectators. Some moral damages in the sum of P100,000.00; and to
accounts swear that acts of cannibalism ensued, although they were pay proportionately the costs.
not sufficiently demonstrated. However, for their outrageous feat, the
gangleader already earned the monicker "cannibal priest-killer" But, Further, the Court finds the accused Norberto
what is indubitable is that Fr. Tulio Favali1 was senselessly killed for Manero, Jr. alias Commander Bucay GUILTY
no apparent reason than that he was one of the Italian Catholic beyond reasonable doubt of the offense of Arson
missionaries laboring in heir vineyard in the hinterlands of and with the application of the Indeterminate
Mindanao.2 Sentence Law, hereby sentences him to an
indeterminate penalty of imprisonment of not less
than four (4) years, nine (9) months, one (1) day
of prision correccional, as minimum, to six (6) years Edilberto and Elpidio, along with Rodrigo Espia, Severino Lines,
of prision correccional, as maximum, and to Rudy Lines, Efren Pleago and Roger Bedao, were inside the
indemnify the Pontifical Institute of Foreign Mission eatery of one Reynaldo Diocades at Km. 125, La Esperanza,
(PIME) Brothers, the congregation to which Father Tulunan, Cotabato. They were conferring with Arsenio Villamor, Jr.,
Tulio Favali belonged, the sum of P19,000.00 private secretary to the Municipal Mayor of Tulunan, Cotabato, and
representing the value of the motorcycle and to pay his two (2) unidentified bodyguards. Plans to liquidate a number of
the costs. suspected communist sympathizers were discussed. Arsenio
Villamor, Jr. scribbled on a cigarette wrapper the following "NPA v.
Finally, the Court finds the accused Norberto NPA, starring Fr. Peter, Domingo Gomez, Bantil, Fred Gapate, Rene
Manero, Jr., alias Commander Bucay, Edilberto alias Tabagac and Villaning." "Fr. Peter" is Fr. Peter Geremias, an
Manero alias Edil, Elpidio Manero, Severino Lines, Italian priest suspected of having links with the communist
Rudy Lines, Rodrigo Espia alias Rudy, Efren movement; "Bantil" is Rufino Robles, a Catholic lay leader who is the
Pleago and Roger Bedao GUILTY beyond complaining witness in the Attempted Murder; Domingo Gomez is
reasonable doubt of the offense of Attempted another lay leader, while the others are simply "messengers". On the
Murder and with the application of the Indeterminate same occasion, the conspirators agreed to Edilberto Manero's
Sentence Law, hereby sentences each of them to an proposal that should they fail to kill Fr. Peter Geremias, another
indeterminate penalty of imprisonment of not less Italian priest would be killed in his stead.8
than two (2) years, four (4) months and one (1) day
of prision correccional, and minimum, to eight (8) At about 1:00 o'clock that afternoon, Elpidio Manero with two (2)
years and twenty (20) days of prision mayor, as unidentified companions nailed a placard on a street-post beside the
maximum, and to pay the complainant Rufino eatery of Deocades. The placard bore the same inscriptions as those
Robles the sum of P20,000.00 as attorney's fees found on the cigarette wrapper except for the additional phrase
and P2,000.00 as court appearance fee for every "versus Bucay, Edil and Palo." Some two (2) hours later, Elpidio also
day of trial and to pay proportionately the costs. posted a wooden placard bearing the same message on a street
cross-sign close to the eatery.9
The foregoing penalties shall be served by the said
accused successively in the order of their respective Later, at 4:00 o'clock, the Manero brothers, together with Espia and
severity in accordance with the provisions of Article the four (4) appellants, all with assorted firearms, proceeded to the
70 of the Revised Penal Code, as amended.7 house of "Bantil", their first intended victim, which was also in the
vicinity of Deocades' carinderia. They were met by "Bantil" who
From this judgment of conviction only accused Severino Lines, Rudy confronted them why his name was included in the placards.
Lines, Efren Pleago and Roger Bedao appealed with respect to Edilberto brushed aside the query; instead, he asked "Bantil" if he
the cases for Murder and Attempted Murder. The Manero brothers had any qualms about it, and without any provocation, Edilberto drew
as well as Rodrigo Espia did not appeal; neither did Norberto his revolver and fired at the forehead of "Bantil". "Bantil" was able to
Manero, Jr., in the Arson case. Consequently, the decision as parry the gun, albeit his right finger and the lower portion of his right
against them already became final. ear were hit. Then they grappled for its possession until "Bantil" was
extricated by his wife from the fray. But, as he was running away, he
was again fired upon by Edilberto. Only his trousers were hit. "Bantil"
Culled from the records, the facts are: On 11 April 1985, around
however managed to seek refuge in the house of a certain Domingo
10:00 o'clock in the morning, the Manero brothers Norberto Jr.,
Gomez. 10 Norberto, Jr., ordered his men to surround the house and
not to allow any one to get out so that "Bantil" would die of no prior agreement to kill; that the intended victim was Fr. Peter
hemorrhage. Then Edilberto went back to the restaurant of Geremias, not Fr. Tulio Favali; that there was only one (1) gunman,
Deocades and pistol-whipped him on the face and accused him of Edilberto; and, that there was absolutely no showing that appellants
being a communist coddler, while appellants and their cohorts cooperated in the shooting of the victim despite their proximity at the
relished the unfolding drama. 11 time to Edilberto.

Moments later, while Deocades was feeding his swine, Edilberto But the evidence on record does not agree with the arguments of
strewed him with a burst of gunfire from his M-14 Armalite. accused-appellants.
Deocades cowered in fear as he knelt with both hands clenched at
the back of his head. This again drew boisterous laughter and On their defense of alibi, accused brothers Severino and Rudy Lines
ridicule from the dreaded desperados. claim that they were harvesting palay the whole day of 11 April 1985
some one kilometer away from the crime scene. Accused Roger
At 5:00 o'clock, Fr. Tulio Favali arrived at Km. 125 on board his Bedao alleges that he was on an errand for the church to buy
motorcycle. He entered the house of Gomez. While inside, Norberto, lumber and nipa in M'lang, Cotabato, that morning of 11 April 1985,
Jr., and his co-accused Pleago towed the motorcycle outside to the taking along his wife and sick child for medical treatment and arrived
center of the highway. Norberto, Jr., opened the gasoline tank, in La Esperanza, Tulunan, past noontime.
spilled some fuel, lit a fire and burned the motorcycle. As the vehicle
was ablaze, the felons raved and rejoiced. 12 Interestingly, all appellants similarly contend that it was only after
they heard gunshots that they rushed to the house of Norberto
Upon seeing his motorcycle on fire, Fr. Favali accosted Norberto, Jr. Manero, Sr., Barangay Captain of La Esperanza, where they were
But the latter simply stepped backwards and executed a thumbs- joined by their fellow CHDF members and co-accused, and that it
down signal. At this point, Edilberto asked the priest: "Ano ang gusto was only then that they proceeded together to where the crime took
mo, padre (What is it you want, Father)? Gusto mo, Father, bukon ko place at Km. 125.
ang ulo mo (Do you want me, Father, to break your head)?"
Thereafter, in a flash, Edilberto fired at the head of the priest. As Fr. It is axiomatic that the accused interposing the defense of alibi must
Favali dropped to the ground, his hands clasped against his chest, not only be at some other place but that it must also be physically
Norberto, Jr., taunted Edilberto if that was the only way he knew to impossible for him to be at the scene of the crime at the time of its
kill a priest. Slighted over the remark, Edilberto jumped over the commission. 14
prostrate body three (3) times, kicked it twice, and fired anew. The
burst of gunfire virtually shattered the head of Fr. Favali, causing his
Considering the failure of appellants to prove the required physical
brain to scatter on the road. As Norberto, Jr., flaunted the brain to the
impossibility of being present at the crime scene, as can be readily
terrified onlookers, his brothers danced and sang "Mutya Ka
deduced from the proximity between the places where accused-
Baleleng" to the delight of their comrades-in-arms who now took
appellants were allegedly situated at the time of the commission of
guarded positions to isolate the victim from possible assistance. 13 the offenses and the locus criminis, 15 the defense of alibi is definitely
feeble. 16After all, it has been the consistent ruling of this Court that
In seeking exculpation from criminal liability, appellants Severino no physical impossibility exists in instances where it would take the
Lines, Rudy Lines, Efren Pleago and Roger Bedao contend that accused only fifteen to twenty minutes by jeep or tricycle, or some
the trial court erred in disregarding their respective defenses of alibi one-and-a-half hours by foot, to traverse the distance between the
which, if properly appreciated, would tend to establish that there was place where he allegedly was at the time of commission of the
offense and the scene of the crime. 17 Recently, we ruled that there Norberto Manero, Jr. and Edilberto Manero in the
can be no physical impossibility even if the distance between two carinderia of Reynaldo Deocades in La Esperanza,
places is merely two (2) hours by bus. 18 More important, it is well- Tulunan, Cotabato at 10:00 o'clock in the morning of
settled that the defense of alibi cannot prevail over 11 April 1985 morning . . . they were outside of the
the positive identification of the authors of the crime by the carinderia by the window near the table where
prosecution witnesses. 19 Edilberto Manero, Norberto Manero, Jr., Jun
Villamor, Elpidio Manero and unidentified members
In the case before Us, two (2) eyewitnesses, Reynaldo Deocades of the airborne from Cotabato were grouped
and Manuel Bantolo, testified that they were both inside the eatery at together. Later that morning, they all went to the
about 10:00 o'clock in the morning of 11 April 1985 when the Manero cockhouse nearby to finish their plan and drink tuba.
brothers, together with appellants, first discussed their plan to kill They were seen again with Edilberto Manero and
some communist sympathizers. The witnesses also testified that Norberto Manero, Jr., at 4:00 o'clock in the afternoon
they still saw the appellants in the company of the Manero brothers of that day near the house of Rufino Robles (Bantil)
at 4:00 o'clock in the afternoon when Rufino Robles was shot. when Edilberto Manero shot Robles. They
Further, at 5:00 o'clock that same afternoon, appellants were very surrounded the house of Domingo Gomez where
much at the scene of the crime, along with the Manero brothers, Robles fled and hid, but later left when Edilberto
when Fr. Favali was brutally murdered. 20 Indeed, in the face of such Manero told them to leave as Robles would die of
positive declarations that appellants were at the locus criminis from hemorrhage. They followed Fr. Favali to Domingo
10:00 o'clock in the morning up to about 5:00 o'clock in the Gomez' house, witnessed and enjoyed the burning
afternoon, the alibi of appellants that they were somewhere else, of the motorcycle of Fr. Favali and later stood guard
which is negative in nature, cannot prevail. 21 The presence of with their firearms ready on the road when Edilberto
appellants in the eatery at Km. 125 having been positively Manero shot to death Fr. Favali. Finally, they joined
established, all doubts that they were not privy to the plot to liquidate Norberto Manero, Jr. and Edilberto Manero in their
alleged communist sympathizers are therefore removed. There was enjoyment and merriment on the death of the
direct proof to link them to the conspiracy. priest. 26

There is conspiracy when two or more persons come to an From the foregoing narration of the trial court, it is clear that
agreement to commit a crime and decide to commit it. 22It is not appellants were not merely innocent bystanders but were in fact vital
essential that all the accused commit together each and every act cogs in perpetrating the savage murder of Fr. Favali and the
constitutive of the offense. 23 It is enough that an accused attempted murder of Rufino Robles by the Manero brothers and their
participates in an act or deed where there is singularity of purpose, militiamen. For sure, appellants all assumed a fighting stance to
and unity in its execution is present. 24 discourage if not prevent any attempt to provide assistance to the
fallen priest. They surrounded the house of Domingo Gomez to stop
The findings of the court a quo unmistakably show that there was Robles and the other occupants from leaving so that the wounded
Robles may die of hemorrhage. 27Undoubtedly, these were overt
indeed a community of design as evidenced by the concerted acts of
all the accused. Thus acts to ensure success of the commission of the crimes and in
furtherance of the aims of the conspiracy. The appellants acted in
concert in the murder of Fr. Favali and in the attempted murder of
The other six accused, 25 all armed with high Rufino Robles. While accused-appellants may not have delivered the
powered firearms, were positively identified with
fatal shots themselves, their collective action showed a common Q What was the reaction of
intent to commit the criminal acts. Norberto Manero with respect to the
plan to kill Fr. Peter?
While it may be true that Fr. Favali was not originally the intended
victim, as it was Fr. Peter Geremias whom the group targetted for the A He laughed and even said, "amo
kill, nevertheless, Fr. Favali was deemed a good substitute in the ina" meaning "yes, we will kill him
murder as he was an Italian priest. On this, the conspirators ahead."
expressly agreed. As witness Manuel Bantolo explained 28
xxx xxx xxx
Q Aside from those persons listed in
that paper to be killed, were there Q What about Severino Lines?
other persons who were to be What was his reaction?
liquidated?
A He also laughed and so
A There were some others. conformed and agreed to it.

Q Who were they? Q Rudy Lines.

A They said that if they could not kill A He also said "yes".
those persons listed in that paper
then they will (sic) kill anyone so Q What do you mean "yes"?
long as he is (sic) an Italian and if
they could not kill the persons they
like to kill they will (sic) make A He also agreed and he was happy
Reynaldo Deocades as their and said "yes" we will kill him.
sample.
xxx xxx xxx
That appellants and their co-accused reached a common
understanding to kill another Italian priest in the event that Fr. Peter Q What about Efren Pleago?
Geremias could not be spotted was elucidated by Bantolo thus 29
A He also agreed and even
Q Who suggested that Fr. Peter be commented laughing "go ahead".
the first to be killed?
Q Roger Bedao, what was his
A All of them in the group. reaction to that suggestion that
should they fail to kill Fr. Peter, they
will (sic) kill anybody provided he is
an Italian and if not, they will (sic)
make Reynaldo Deocades an heirs, 36 even though not proved nor expressly pleaded in the
example? complaint, 37 and the amount of P100,000.00 is considered
reasonable.
A He also agreed laughing.
With respect to the civil indemnity of P12,000.00 for the death of Fr.
Conspiracy or action in concert to achieve a criminal design being Tulio Favali, the amount is increased to P50,000.00 in accordance
sufficiently shown, the act of one is the act of all the other with existing jurisprudence, which should be paid to the lawful heirs,
conspirators, and not the PIME as the trial court ruled.
the precise extent or modality of participation of each of them
becomes secondary. 30 WHEREFORE, the judgment appealed from being in accord with law
and the evidence is AFFIRMED with the modification that the civil
The award of moral damages in the amount of P100,000.00 to the indemnity which is increased from P12,000.00 to P50,000.00 is
congregation, the Pontifical Institute of Foreign Mission (PIME) awarded to the lawful heirs of the deceased plus exemplary
Brothers, is not proper. There is nothing on record which indicates damages of P100,000.00; however, the award of moral damages is
that the deceased effectively severed his civil relations with his deleted.
family, or that he disinherited any member thereof, when he joined
his religious congregation. As a matter of fact, Fr. Peter Geremias of Costs against accused-appellants.
the same congregation, who was then a parish priest of Kidapawan,
testified that "the religious family belongs to the natural family of SO ORDERED.
origin." 31 Besides, as We already held, 32 a juridical person is not
entitled to moral damages because, not being a natural person, it
cannot experience physical suffering or such sentiments as wounded
feelings, serious anxiety, mental anguish or moral shock. It is only
when a juridical person has a good reputation that is debased,
resulting in social humiliation, that moral damages may be awarded.

Neither can We award moral damages to the heirs of the deceased


who may otherwise be lawfully entitled thereto pursuant to par. (3),
Art. 2206, of the Civil Code, 33 for the reason that the heirs never
presented any evidence showing that they suffered mental anguish;
much less did they take the witness stand. It has been held 34 that
moral damages and their causal relation to the defendant's acts
should be satisfactorily proved by the claimant. It is elementary that
in order that moral damages may be awarded there must be proof of
moral suffering. 35 However, considering that the brutal slaying of Fr.
Tulio Favali was attended with abuse of superior strength, cruelty
and ignominy by deliberately and inhumanly augmenting the pain
and anguish of the victim, outraging or scoffing at his person or
corpse, exemplary damages may be awarded to the lawful
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. SPO1 from Besao, Mt. Province, except Clemente who said that he came
JOSE BANGCADO[1] and PO3 CESAR BANISA, accused- from Balili, La Trinidad. Bangcado, with Banisa standing guard
appellants. behind him with a drawn gun, ordered Cogasi, Clemente, Adawan
and Lino to form a line against the Ford Fierra facing him in that
DECISION order. Adawan was only one meter away from Bangcado. Lino and
Cogasi were about 1-1/2 meters away, while Clemente, four (4)
BELLOSILLO, J.: meters away. Without any warning, Bangcado suddenly fired his gun
in quick succession at the four (4) persons lined up against the Ford
SPO1 JOSE BANGCADO and PO3 CESAR BANISA appeal Fierra. Cogasi saw Adawan and Lino fall down. Cogasi then felt he
from the decision of the Regional Trial Court of Baguio City was hit on the left side of his neck and he also fell down. He
convicting them of two (2) counts of murder and two (2) counts of managed however to crawl away and run to the Hilltop where he was
frustrated murder, imposing upon them the corresponding prison able to ask for help before falling unconscious.
terms, and to pay damages plus costs.[2]
Cogasi woke up to find himself confined at the Baguio General
The facts: On 27 June 1993, at around 8:30 in the evening, Hospital together with Clemente. There Cogasi learned that Lino and
Pacson Cogasi, Julio Clemente, Leandro Adawan and Richard Lino Adawan died from gunshot wounds in their heads. Cogasi himself
were at the Skyview Restaurant, Magsaysay Avenue, Baguio City, suffered a gunshot wound at the neck, at the junction of his left jaw
drinking and listening to folksongs. Moments later, a group of five (5) near the ear, while Clemente received two (2) gunshot wounds on
arrived and sat one table away from Pacson Cogasi and his his right shoulder with one (1) of the bullets being lodged just below
friends. Among the newcomers was a thin person wearing a blue his right eye.
long-sleeved jacket, later identified as SPO1 Jose Bangcado, and a
After their release from the hospital, Cogasi and Clemente filed
heavier one wearing a t-shirt and maong pants, later identified as
a complaint with the NBI in Baguio City. On 8 July 1993, four (4)
PO3 Cesar Banisa. The rest of their group were not identified.
civilian males were presented to Cogasi for identification by the NBI,
At that time, members of the police force of Baguio City were but he told them that the suspects were not among those
conducting Operation Kapkap at the Skyview Restaurant. They present. Clemente did not participate in the identification process
however exempted the table of PO3 Cesar Banisa as they knew him because of his eye injury.
to be a fellow policeman.
In the morning of 10 July 1993 Bangcado and Banisa reported
At around 9:00 o'clock that evening, Cogasi and his friends left for their regular rank inspection at the La Trinidad Police Station. The
the restaurant to go home. They were residents of La Trinidad, policemen were told to remain in formation after the
Benguet. As they went behind the restaurant where their Ford Fierra inspection. Cogasi went around the formation four (4) or five (5)
was parked, they noticed SPO1 Jose Bangcado and PO3 Cesar times before pointing to Bangcado and then to Banisa. Clemente
Banisa following them. Cogasi and his group recognized Bangcado also went around the formation but despite going around longer than
and Banisa to be customers at Skyview Restaurant. Bangcado and Cogasi, Clemente was unable to identify anybody.Clemente started
Banisa approached them. First, Banisa asked Richard Lino for a to point to James Tagle but withdrew his identification of him when
light. Then Bangcado and Banisa asked the group if they were willing some people then present laughed and shouted "Hoy!" and "Sabali!"
to be frisked. Since the two (2) police officers were armed with meaning "Wrong!" or "Different!" Accused-appellants insist that
handguns and smelled of liquor, the group agreed to be frisked.As Clemente could not have made a reliable identification of them at the
Leandro Adawan stepped aside to urinate, Bangcado slapped him NBI and La Trinidad line ups, nor even in open court, because his
and then asked the group where they came from. Their answer was, eye injury blurred his vision.
The rule is that positive identification of witnesses prevails over course, when expressly mandated. Witnesses are to be weighed, not
the simple denial of the accused. It cannot be doubted that Clemente numbered, in determining the credibility of witnesses and the value
and Cogasi had a good view of the faces of the accused. From the of each piece of evidence. In fact, the testimony of a single witness,
testimonies of various witnesses, including PO3 Jimmy Baybay, one if credible and positive, is sufficient to convict,[5] and must be given
of the policemen who conducted Operation Kapkap, the Skyview full faith and credence when no reason to falsely testify is shown. [6]
Restaurant was well-lighted. Banisa himself testified that although
the lighting may be "somewhat dim," he could still recognize a Assuming arguendo that Clemente was unable to identify
person from a distance of four (4) meters. [3] This is relevant accused-appellants during the line-up in La Trinidad as his right eye
considering that the two (2) groups were seated only one (1) table was still bandaged from his injuries, he was able to make a positive
apart. Thus, Cogasi and his friends were able to recognize their identification in open court. Neither is it material now that Clemente
assailants as the persons who came out from the Skyview made some attempts to point to policeman James Tagle for it seems
Restaurant. clear that he withdrew his identification. Besides, Clemente admitted
candidly that he could not identify anyone in the line-up since his
The crime scene was illuminated by two (2) streetlights and the right eye was still covered with a bandage and was still suffering
lights coming from the nearby Garden Inn and various sari-sari from blurred vision.
stores. The fact that the policemen who responded to the report of
the incident had to use a flashlight in their investigation did not prove Further, the defense failed to shake Cogasis certainty, either
that the area was so dark as to preclude the identification of the when he declared that he recognized accused-appellants as being
persons involved. For one thing, the policemen had to be careful not those who were earlier in the Skyview Restaurant, or when he
to overlook any piece of evidence, such as a spent bullet. For pointed to them in the line-up at La Trinidad. The fact that he took
another, SPO4 Antonio Naungayan of PNP Baguio City, who was some five (5) minutes and had to go around the line-up four (4) or
part of the investigating team, testified on cross-examination that five (5) times did not detract from his credibility. Rather, it is to his
even if the area was not brightly lighted, one could still recognize credit that he took time to look closely into the faces of more than
people.[4] According to Clemente, he was only four (4) meters away twenty-four (24) or so similarly garbed men to make sure that he did
from his attackers when they fired upon him and his friends. Cogasi not make a mistake in identifying his assailants.
was only 1-1/2 meters away while Adawan and Lino, who died on the Neither should the defense attempt to mislead the Court by
spot, were each only about a meter away. pointing out that Cogasi was not able to identify Bangcado during the
It cannot be doubted that Cogasi and Clemente had enough NBI line-up since it is clear that that line-up did not include accused-
time to take a good look at their assailants faces who conversed with appellants. Instead, it was composed of four (4) civilians, none of
their victims, ordered them to fall in line, frisked them one by one, whom he had ever seen before. Since these four (4) had no
and asked them questions before shooting them. When Bangcado connection with the crime, there was no reason for Cogasi to
and Banisa leaned over to frisk Cogasi and his friends, their faces implicate any of them in the murder.
must have only been inches away from their victims; and when they The defense also points out that the policemen who
ordered their victims to line up against the vehicle, they stood only a conducted Operation Kapkap indicated in their joint affidavit that they
few meters away. only saw Banisa present inside the Skyview Restaurant, along with
Although Clemente admitted to be suffering from blurred vision, three (3) unidentified companions. According to the defense, this
Cogasis positive identification of appellants could be sufficient to only proves that Bangcado was not there since the policemen
establish their identities. Indeed, there is no law that requires that the personally knew Bangcado and thus should have included him in
testimony of a single witness must be corroborated except, of their joint affidavit.
However, the theory of the trial court that the reason why they drivers side but immediately closed it."[8] Quite obviously, the two (2)
did not see Bangcado with Banisa was because he went to the persons who emerged from the Skyview Restaurant intended to
washroom or elsewhere deserves credence. Considering that the board the parked car but changed their minds and, instead, followed
Skyview Restaurant had some thirty (30) to fifty (50) customers that Cogasi and his friends to the Ford Fierra that was parked.
night; that the four (4) policemen were busy going around the tables
conducting Operation KapKap; that they did not approach the table The accused-appellants raise the defense of alibi which is
of Banisa to frisk him and his companions because they recognized inherently weak. To prosper, alibi must be so convincing as to
him as a policeman, then it is evident that their attention was preclude any doubt that the accused could not have been physically
elsewhere, and that they did not bother to inquire whether Banisa present at the crime scene at the time of the incident. [9] The alibis of
had other fellow officers with him. Further, the policemen testified the accused clearly show upon examination that this could not have
that they were in the restaurant for only a few minutes. been so.

Further, PO Delfin Balan-eg, one of the policemen who Bangcado testified that he stayed at home because he served
conducted Operation Kapkap, testified that he saw Bangcado and his tour of duty from 12:00 midnight to 8:00 a.m. the previous
Banisa drinking beer inside the restaurant. The defense tried to day. Thus, on the day of the incident, he was at home where he
destroy his credibility by establishing that he and the two (2) victims slept, read the newspapers, watched television and played with his
as well as the two (2) complaining witnesses were related. However, one-year-and-seven-month old daughter. After dinner, he took a nap
it must be stressed, that relationship, much less bias, cannot be until his mother-in-law woke him up before 11:00 p.m. so he could
established by the fact that two (2) persons live in different report to the police station before 12:00 midnight. As police officer
barangays that form part of the same town. assigned to patrol his area of responsibility, his job was to ride in the
police vehicle going around La Trinidad.[10] This was confirmed by
The defense insist that neither could Cogasis testimony be Bangcado's mother-in-law Angela Gondales when she testified for
given any weight since his testimony in open court contradicted his the accused.
sworn affidavit executed immediately after the incident before the
investigating officer.While he testified that he saw the accused Yet, Bangcado himself told the court that Central Pico, La
emerge from the Skyview Restaurant, in his affidavit, he swore that Trinidad, Benguet, where his mother-in-laws house stood, was only
their attackers actually alighted from a red -colored car. The theory of five (5) kilometers away from Skyview Restaurant and could be
the defense is that if the gunmen alighted from a red or maroon negotiated in thirty (30) minutes using a motor vehicle.[11] The fact
colored car immediately before the shooting, then they could not that La Trinidad was only thirty (30) minutes away from Baguio City
have come from the Skyview Restaurant, and vice versa. was corroborated by Banisa himself.[12] And Bangcados house is
near a national highway where jeepneys pass by on their way to
An affidavit taken ex parte is judicially considered to be almost Baguio City, which means, it was not impossible for Bangcado to
incomplete and often inaccurate, sometimes from partial suggestions have left the house earlier than 11:00 p.m. and be in Baguio City at
and sometimes from want of suggestions and inquiries, without the the time of the incident.
aid of which the witness may be unable to recall the connected
circumstances necessary for his accurate recollection of the The defense failed to establish with credible evidence that
incident.[7] Further, an examination of Cogasis sworn statement SPO1 Jose Bangcado was on duty from 11:00 o'clock in the evening
shows, however, that there was actually no contradiction. His to 8:30 the following morning. SPO4 Lilia Pascual, Records
testimony was as follows: "x x x I noticed a maroon car x x x I noticed Custodian of the PNP at La Trinidad, Benguet, testified that there
also two persons who were immediately following us went (sic) near was no record of the attendance of PNP officers from June to
the parked maroon car and one of them opened the door at the December 1993. SPO4 Carlos Layagan, Bangcados Patrol Section
Supervisor, testified that on that day, Bangcado was present for his
regular tour of duty from 12:00 o'clock midnight to 8:00 o'clock the SPO1 Jose Bangcado and PO3 Cesar Banisa could have
following morning and conducted routine patrol by mobile, [13] but the accosted their victims, gone back to Skyview Restaurant and joined
incident occurred at around 9:00 o'clock in the evening according to their companions who may have thought that they (Bangcado and
the police who responded when the crime was reported to Banisa) just went to the comfort room or stepped out for some fresh
them. Thus, Bangcado had plenty of time to do what he did and still air. Abelardo Lucas himself testified that while they were at the
go on his tour of duty. More damaging was the admission of Layagan Skyview Restaurant his companions would frequently stand up and
in his cross-examination that before 12:00 o'clock midnight of 27 leave, purportedly to go to the restroom.
June 1993 he was not in the company of SPO1 Jose Bangcado.[14]
The defense bewails the fact that nothing seemed to have been
The alibi of PO3 Cesar Banisa was even more incredible. He done to the deformed slug found near the body of the deceased
admitted being at the Skyview Restaurant when Cogasi and his Richard Lino, nor to the other slug extracted from Clemente, and that
friends were there, but claimed that he left with his brother to no ballistics examination was conducted to determine from what
eat mami and siopao at the Baguio First Hotel, which is only about a caliber they were fired and if the gun used was the
hundred (100) to a hundred and fifty (150) meters away from same. Investigators did not even cause the surrender of accused-
Skyview Restaurant and could be reached in five (5) minutes of appellants firearms for examination and comparison. Neither were
walking.[15] He explained however that "this bold admission x x x accused-appellants required to undergo a paraffin test.
placing him within the vicinity of the crime scene shows his clear
conscience. For, if he was involved in the crime, he would naturally Nonetheless, a ballistics examination is not indispensable, and
put himself in other places."[16] His testimony was corroborated by even if another weapon was in fact actually used in killing the victim,
Abelardo Lucas who testified that he, along with Arsenio Palileng still the accused cannot excape criminal liability therefor as he was
and Raymund Banisa, accused-appellants brother, was with Banisa already positively identified.[18] Because credible witnesses had
that night. already demonstrated accused-appellants' culpability, there was no
need to present further evidence linking them to the crime. There is
While flight of an accused is competent evidence to no requirement of a certain quantum of evidence before one may be
establish prima facie his guilt, there is no law or principle that non- justly convicted of an offense except when specifically required by
flight per se is proof, let alone conclusive proof, of innocence. Much law. The only requisite then is that the guilt of the accused is proved
like the defense of alibi, non-flight cannot prevail against the weight beyond reasonable doubt.[19]
of positive identification of the accused.[17] It is more credible to
believe that Banisa had no choice but to tell the truth regarding his Accused-appellants insist that they had no motive to shoot the
presence at the Skyview Restaurant because four (4) policemen who victims and/or the complaining witnesses. However, even the
knew him well saw him there while they were conducting Operation absence of a known motive, the time-honored rule is that motive is
Kapkap. not essential to convict when there is no doubt as to the identity of
the culprit.[20] Lack of motive does not preclude conviction when the
PO3 Banisa further claims that his group stayed at the Baguio crime and the participation of the accused therein are definitely
First Hotel Restaurant for only ten (10) minutes and then went down shown,[21] particularly when we consider how nowadays, it is a matter
the road to the jeepney station where they boarded a jeepney at 9:00 of judicial knowledge that persons have killed or committed serious
o'clock in the evening bound for La Trinidad and got home after offense for no reason at all.[22]
twenty-five (25) to thirty-five (35) minutes. Yet he also testified that
the boarding station for jeepneys bound for La Trinidad was only The defense also tried, but failed, to establish that Cogasi and
across the road from Skyview Restaurant. Clemente knew beforehand that Bangcado and Banisa were
policemen as they all lived and worked together in the same
neighborhood. This allegation is not sufficient to prove that the
witnesses for the prosecution had any ill motive to testify against Q: You testified that the thin one who called himself Jose
accused-appellants. When there is no evidence to show any Bangcado pointed a gun at Leandro Adawan, what type of
improper motive on the part of the prosecution witnesses to testify gun is (sic) that x x x x
falsely against an accused or to falsely implicate him in the
commission of a crime, the logical conclusion is that no such A: It was black and short.
improper motive exists and that the testimony is worthy of full faith Q: What about the fat man at that time, was identified as Cesar
and credit.[23] Banisa, what was he doing at that time?
The defense also assails the conclusion reached by the trial A: He was also standing beside him and was holding his gun.
court that the accused were guilty because they remained silent
when they were pinpointed by Cogasi during the police line-up. The Q: Would you illustrate to this Court how Jose Bangcado pointed
trial court asked, "Is it not that 'Qui tacen concentire videtur,' a gun at Leandro Adawan?
meaning, 'Silence means consent'?"[24]
A: Witness stretch[ed] both his arms and clasped his hands
Although the Rules of Court provides that an act or declaration together with the forefinger extended in front of him.
made in the presence and within the hearing or observation of a
Q: After you saw Jose Bangcado point a gun at Leandro Adawan,
party who does or says nothing when the act or declaration is such
what else transpired, Mr. Witness?
as naturally to call for action or comment if not true, and when proper
and possible for him to do so, may be given in evidence against A: He suddenly fired his gun.
him,[25] courts should be cautious in interpreting silence against the
accused. Further, the facts do not support the conclusion that the Q: To whom Mr. Witness did he fire his gun?
accused remained silent. Both Bangcado and Banisa gave their A: He fired his gun to the four of us.
individual reactions during the line-up but police discipline kept them
from breaking rank.[26] As police officers, they are bound by the strict Q: After firing his gun what else transpired, Mr. Witness?
discipline of their profession, as well as an awareness of their rights
to remain silent and to avail of the services of counsel. These rights A: I just felt that I fell down.
are not diminished by the fact that they are policemen. Q: Why did you fall down?
However, the trial court ruled, and correctly so, that at the time A: Because I was shot.[27]
of the police line-up, accused-appellants were not yet under the
custody of the police agencies. Their rights had not yet been On cross-examination, Cogasi affirmed his sworn statement
restricted or curtailed. The right to counsel attaches from the moment taken by the investigating officer immediately after the incident
the investigation starts, i.e., when the investigating officer begins to wherein he referred to only one (1) gunman who did the shooting. He
ask questions to elicit information and confessions or admissions further testified that he heard four (4) successive shots when the
from the accused. gunman started shooting, then heard more shots only after he had
succeeded in running away.
From the testimony of the victims as well as from the physical
evidence, it seems that SPO1 Bangcado was the lone gunman, while On his part, Clemente attested in his sworn statement that "the
PO3 Banisa merely stood behind him with his gun drawn. In his man in jacket then ordered us to line up. After we have formed a line,
testimony, Cogasi narrated how the shooting occured - he started shooting at us starting from the left. He shot first Leandro,
then Richard and followed by Pacson. After hearing the shots and
seeing my companions fall, I turned my back and held my nape with
my two (2) hands and started to run but I got hit and fell. I got up and Q: So, because you turned your back, you did not really see who
tried to run but I fell down again."[28] actually shot you?
On the other hand, during his direct examination Clemente A: I saw the thin one point the gun at me and both were armed
testified - with guns, sir x x x x
Q: Now, Mr. Witness, when these two (2) persons followed you Q: So, you want to tell the court that it was the thin one who shot
and your companions, what did you observe from them that you because he was holding the gun that way, is that
time? correct?
A: They have (sic) guns, sir. A: I do not know because both of them have (sic) guns, sir. But I
saw the thin one pointing a gun at me, sir.[30]
Q: What kind of guns do (sic) they have?
Thus, as to the identity of the gunman, it is apparent that both
A: Short and black, sir. witnesses were positive only as far as Bangcado was
Q: And were they holding their guns? concerned. However, it seems that they only concluded that Banisa
participated in the shooting because he was also holding a gun. The
A: They were holding their guns, sir x x x x failure of the surviving victims to assert with confidence that Banisa
also fired his gun raises reasonable doubt as to whether he
Q: After you were made to fall in line, what happened next?
participated in the shooting.
A: He pointed a gun, sir.
Accused-appellants deny the existence of treachery, nighttime
Q: Who pointed the gun to whom? and abuse of public position to aggravate the commission of the
crimes. It is settled that qualifying circumstances cannot be
A: The thin man pointed his gun at Leandro Adawan, sir. presumed but must be established by clear and convincing evidence,
Q: What else transpired after that? as conclusively as the killing itself.[31] The defense alleges that there
is no evidence that accused-appellants made some preparation to
A: They fired their guns at us, sir. kill the victim in such a manner as to insure the execution of the
crime or to make it impossible or hard for the person attacked to
Q: Who shot at who (sic)? defend himself. For treachery to be considered, two (2) elements
A: The two (2) of them, sir, because there were two of them.[29] must concur: (a) the employment of means of execution that gives
the person attacked no opportunity to defend himself or retaliate;
On cross examination, Clemente testified - and, (b) the means of execution were deliberately or consciously
adopted.[32] In this case, treachery was not present. In a long line of
Q: So, you said on that date you were frisked and then later on
cases, the Court held that "the essence of treachery is the swift and
lined-up and when you heard successive shots, you fell
unexpected attack on an unarmed victim without the slightest
down?
provocation on his part."[33]
A: When I heard the three (3) successive shots, I saw one
To ensure that he was not in any risk, accused-appellant
pointing the gun again at me, so, I turned around and
Bangcado frisked and searched Cogasi, Clemente, Adawan and Lino
prepared to run, but I was hit, sir. When I turned my back
to see if they were concealing any weapons. After making sure that
and started to run, I was hit, sir.
the victims were unarmed, Bangcado directed the victims to form a
line against the Ford Fierra to separate the victims from each other Accused-appellants deny that there was an offer to compromise
and so that the latter could not rush to their friends defense. Because when their relatives visited Miguel Adawan, the 81-year old father of
Bangcado and Banisa were holding handguns, Cogasi and his Leandro Adawan. The old Adawan in tears testified that he came to
friends did as they were told and were caught unaware when they know of the accused Bangcado and Banisa through their relatives
were shot. In fact, Adawan and Lino died of gunshot wounds in the when the latter came to his house in Besao, Mt. Province. Although
head, while Cogasi and Clemente only sustained head wounds that the incident occurred on 27 June 1993, the first visit was sometime in
did not prove fatal. April 1995 when Magdalena Mabiasan, the mother of Jose Banisa
came "for a possible settlement of the case."[36] Again, sometime in
In the absence of any previous plan or agreement to commit a August or September 1996, Bangcados wife and parents, along with
crime, the criminal responsibility arising from different acts directed Banisas mother Magdalena, visited him at Pico, La Trinidad.[37]
against one and the same person is individual and not collective, and
that each of the participants is liable only for his own The defense claims that the only reason the relatives of
acts.[34] Consequently, Banisa must be absolved from criminal accused-appellant went to visit and talk to Miguel Adawan was to
responsibility for the assault on the victims. It is clear that neither the prevent him from avenging his sons death on the families of
victims nor Banisa could have anticipated Bangcados act of shooting accused-appellant, in keeping with the tradition of the Igorot
the victims since the attack was sudden and without any reason or indigenous people. Therefore, this cannot be interpreted as an
purpose. Thus, the criminal design of Bangcado had not yet been implied admission of guilt. Moreover, Sec. 27 of Rule
revealed prior to the killings. 130[38] contemplates an offer of compromise from the accused
himself. There is no showing that the visits were made with the
For public position to be appreciated as an aggravating knowledge or upon the instructions of accused-appellants. Thus,
circumstance, the public official must use his influence, prestige and even if the purpose of the visit was to negotiate a settlement,
ascendancy which his office gives him in realizing his purpose. If the accused-appellants had nothing to do with it, since they were neither
accused could have perpetrated the crime without occupying his participants nor initiators.[39]
position, then there is no abuse of public position. [35] Hence, that
aggravating circumstance cannot be appreciated here. While it may The trial court believed in the testimony of Adawan, compared
seem that accused-appellants intended to assert their authority as to that of the relatives of accused-appellants who could be biased,
policemen and encourage in the victims minds the belief that they partial and, of course, hoping to save the two (2) accused from the
were part of Operation KapKap when they frisked the victims, both serious predicament they were in.[40] It posited this question:
Cogasi and Clemente testified that they never told the investigating
officers that their assailants might be policemen. In fact, because the But why is it that during the first time that they approached the
assailants were not in uniform, they believed the latter to be civilians. 77-year old man Adawan in Besao, Mountain Province, they were
already assured that the family of the deceased Adawan would not
The defense claims that the injuries of the surviving victims take revenge and for the last three years, nothing happened to the
were not serious enough to classify the attack under the frustrated families of the accused, still they again went to the residence of
stage, therefore, they committed only attempted homicide. However, Miguel Adawan at Pico, La Trinidad, Benguet. This would only show
the doctors who attended to the surviving victims testified that had that they tried to amicably settle the cases, but they were rebuffed.[41]
they not treated Cogasi and Clemente's injuries the latter would have
suffered from infection which could result in their death. It is clear But an offer of compromise from an unauthorized person cannot
that only timely medical attention saved both victims from imminent amount to an admission of the party himself.[42] Although the Court
death. has held in some cases that an attempt of the parents of the accused
to settle the case is an implied admission of guilt, [43] we believe that
the better rule is that for a compromise to amount to an implied
admission of guilt, the accused should be present or at least had Net Earning Capacity (x) = Life Expectancy x Gross annual
authorized the compromise. income living expenses (50% of gross annual income)
In People v. Macatana[44] it was held: "No implied admission can
be drawn from the efforts to arrive at a settlement outside the courts, where life expectancy = 2/3 x (80 - age of deceased [37 years])
primarily because appellant did not take part in any of the
negotiations. The efforts to settle the case x x x in accordance with x = 2/3 x (80 - 37) x [(P4000.00 x 12) - (P4000.00 x 12)50%]
the established Muslim practices, customs and traditions were
initiated by acknowledged leaders x x x in an effort to prevent further x = 2/3 x 43 x [P48,000.00 - P24,000.00]
deterioration of the relations between the tribes."[45]
The general rule is that claims for actual damages should be x = [2/3 x 43] x P24,000.00
supported by actual receipts. However, it is undisputed that the
victims are members of the indigenous community and were buried x = 28.67 x P24,000.00
according to their customs and traditions. The relatives of the victims
attested that they incurred expenses for the caao, the traditional x = P688,080.00
gathering of Igorots. The Court is not unaware that the informal
market system still governs the economic transactions of indigenous Since Leandro Adawan was thirty-seven (37) years old at the
communities. Thus, receipts and other documents do not play a time of his death, his life expectancy was 28.67 years. Considering
large role in their daily commercial transactions. In this case, wherein that his average monthly income was P4,000.00, his gross annual
it is clearly established that the claimants were indeed members of income would be P48,000.00. Using the above formula, the victims
indigenous communities, then the court should allow reasonable unearned income would thus be P688,080.00.
claims for expenses incurred in relation to traditional burial practices.
On the other hand, the Court has no basis to award damages
The heirs are also entitled to damages for the loss of earning for Richard Lino loss of earning capacity because the prosecution
capacity of the deceased Leandro Adawan. The fact that the failed to introduce any evidence on this matter.
prosecution did not present documentary evidence to support its
claim for damages for loss of earning capacity of the deceased does Civil indemnity in the amount of P50,000.00 (consistent with
not preclude recovery of the damages.[46] Testimonial evidence is prevailing jurisprudence) is automatically granted to the offended
sufficient to establish a basis for which the court can make a fair and party, or his/her heirs in case of the formers death, without need of
reasonable estimate of the damages for the loss of earning further evidence other than the fact of the commission of any of the
capacity.[47] Moreover, in fixing the damages for loss of earning aforementioned crimes (murder, homicide, parricide and rape). Moral
capacity of a deceased victim, the Court can consider the nature of and exemplary damages may be separately granted in addition to
its occupation, his educational attainment and the state of his health indemnity. Moral damages can be awarded only upon sufficient proof
at the time of his death.[48] The testimony of Adawans father that the complainant is entitled thereto in accordance with Art. 2217
sufficiently established the basis for making such an award. It was of the Civil Code, while exemplary damages can be awarded if the
shown that Adawan was thirty-seven (37) years old at the time of his crime is committed with one or more aggravating circumstances duly
death in 1993 and earned P4,000.00 a month as a mechanic. proved. The amounts thereof shall be at the discretion of the
courts.[50]
Hence, in accordance with the American Expectancy Table of
Mortality adopted by this Court in several cases,[49] the loss of his Under present case law, the award of P50,000.00 for civil
earning capacity is to be calculated as follows: indemnity is mandatory upon the finding of the fact of murder. Moral
damages, vis-a-vis compensatory damages or civil indemnity, are aggravating circumstance present in the commission of the offense,
different from each other and should thus be awarded the penalty to be imposed for the frustrated murder shall be taken
separately.[51] Thus, as explained in People v. Victor,[52] the indemnity from the range of prision correccional maximum to prision
authorized by our criminal law as civil liability ex delicto for the mayor medium or four (4) years two (2) months and one (1) day to
offended party, in the amount authorized by the prevailing judicial ten (10) years as minimum, to the medium period of prision
policy and aside from other established actual damages, is itself mayormaximum to reclusion temporal or twelve (12) years five (5)
equivalent to actual or compensatory damages in civil law. It is not to months and eleven (11) days to fourteen (14) years ten (10) months
be considered as moral damages thereunder, the latter being based and twenty (20) days as maximum. Hence, an indeterminate prison
on different jural foundations and assessed by the court in the term of eight (8) years two (2) months and ten (10) days of prision
exercise of sound discretion.[53] mayor medium as minimum to fourteen (14) years four (4) months
and ten (10) days of reclusion temporal medium as maximum may
In People v. Victor the Court increased the civil indemnity for be considered reasonable for the frustrated murder under the facts of
rape committed or effectively qualified by any of the circumstances this case.
under which the death penalty is authorized by the present amended
law, from P50,000.00 to P75,000.00. The Court held that "This is not WHEREFORE, the Decision of the court a quo in Crim. Cases
only a reaction to the apathetic societal perception of the penal law Nos. 11619-R to 11622-R imposing reclusion perpetua for the two
and the financial fluctations over time, but also an expression of the (2) counts of murder and the indeterminate prison term of prision
displeasure of the Court over the incidence of heinous crimes mayor in its medium period to reclusion temporal in its medium
against chastity."[54] It is submitted that the heirs of victims of murder, period for two (2) counts of frustrated murder on both accused-
which is also a heinous crime, should not receive less than what appellants SPO1 Jose Bangcado and PO3 Cesar Banisa is
victims of rape receive as civil indemnity. If the civil indemnity is MODIFIED as follows:
automatically imposed upon the accused without need of proof other
than the fact of the commission of the offense, all the more reason 1. In Crim. Case No. 11619-R, accused-appellant SPO1 Jose
should the same minimum amount be imposed on those convicted of Bangcado is found GUILTY of murder under Art. 248 of the Revised
murder, as more often than not the victims who are killed leave Penal Code qualified by treachery, and is sentenced to reclusion
behind grieving families who are depended upon them for perpetua and to pay the heirs of the victim Richard Lino P75,000.00
support. Thus, indemnity of P75,000.00 should therefore be as indemnity for his death, P59,300.00 as actual
reckoned for each count of murder committed by accused-appellant damages, P200,000.00 as moral damages, and to pay the costs;
SPO1 Jose Bangcado. 2. In Crim. Case No. 11620-R, accused-appellant SPO1 Jose
Since the crime was committed on 27 June 1993, the penalty Bangcado is found GUILTY of murder under Art. 248 of the Revised
for murder prescribed by Art. 248 of the Revised Penal Code, prior to Penal Code, qualified by treachery, and is sentenced to reclusion
its amendment by RA 7659, which took effect only on 31 December perpetua and to pay the heirs of the victim Leandro
1993, should be applied in imposing the penalty for frustrated Adawan P75,000.00 as indemnity for his death, P93,100.00 as
murder, i.e., reclusion temporal maximum to death. actual damages, P200,000.00 as moral damages, and to pay the
costs;
The penalty for frustrated murder is one (1) degree lower than
that prescribed by the Penal Code for the consummated offense, 3. In Crim. Case No. 11621-R, accused-appellant SPO1 Jose
hence, the imposable penalty for frustrated murder should be prision Bangcado is found GUILTY of frustrated murder under Art. 248 in
mayor maximum to reclusion temporal medium. Applying relation to Art. 6 of the Revised Penal Code. Applying
the Indeterminate Sentence Law, and there being no mitigating nor the Indeterminate Sentence Law, and in the absence of modifying
circumstances, he is sentenced to an indeterminate prison term of
eight (8) years two (2) months and ten (10) days of prision
mayor medium, as minimum, to fourteen (14) years four (4) months
and ten (10) days reclusion temporal medium, as maximum, for the
frustrated murder of the victim Julio Clemente, and pay
him P100,000.00 as moral damages, and to pay the costs; and,
4. In Crim. Case No. 11622-R, accused-appellant SPO1 Jose
Bangcado is found GUILTY of frustrated murder under Art. 248 in
relation to Art. 6 of the Revised Penal Code. Applying
the Indeterminate Sentence Law, and in the absence of modifying
circumstances, he is sentenced to an indeterminate prison term of of
eight (8) years two (2) months and ten (10) days of prision
mayor medium, as minimum, to fourteen (14) years four (4) months
and ten (10) days of reclusion temporal medium, as maximum, for
the frustrated murder of Pacson Cogasi, and pay him P100,000.00
as moral damages, and to pay the costs.
There being no finding of conspiracy with accused-appellant
SPO1 Jose Bangcado, PO3 Cesar Banisa is ACQUITTED of all the
charges against him and, consequently, is ordered released from
custody in connection with herein cases, unless he is held for other
lawful causes.
SO ORDERED.

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