The fact above stated was considered and declared unanimously by the provincial fiscal of

Iloilo, the trial judge and the Solicitor-General, as constituting attempted robbery, which we
think is erroneous.

It is our opinion that the attempt to commit an offense which the Penal Code punishes is that
which has a logical relation to a particular, concrete offense; that, which is the beginning of
the execution of the offense by overt acts of the perpetrator, leading directly to its realization
and consummation. The attempt to commit an indeterminate offense, inasmuch as its nature
in relation to its objective is ambiguous, is not a juridical fact from the standpoint of the Penal
Code. There is no doubt that in the case at bar it was the intention of the accused to enter Tan
Yu's store by means of violence, passing through the opening which he had started to make
on the wall, in order to commit an offense which, due to the timely arrival of policeman
Tomambing, did not develop beyond the first steps of its execution. But it is not sufficient, for
the purpose of imposing penal sanction, that an act objectively performed constitute a mere
beginning of execution; it is necessary to establish its unavoidable connection, like the logical
and natural relation of the cause and its effect, with the deed which, upon its consummation,
will develop into one of the offenses defined and punished by the Code; it is necessary to prove
that said beginning of execution, if carried to its complete termination following its natural
course, without being frustrated by external obstacles nor by the voluntary desistance of the
perpetrator, will logically and necessarily ripen into a concrete offense. Thus, in case of robbery,
G.R. No. L-43530 August 3, 1935 in order that the simple act of entering by means of force or violence another person's dwelling
may be considered an attempt to commit this offense, it must be shown that the offender
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, clearly intended to take possession, for the purpose of gain, of some personal property
vs. belonging to another. In the instant case, there is nothing in the record from which such
AURELIO LAMAHANG, defendant-appellant. purpose of the accused may reasonably be inferred. From the fact established and stated in
the decision, that the accused on the day in question was making an opening by means of an
Honesto K. Bausa for appellant. iron bar on the wall of Tan Yu's store, it may only be inferred as a logical conclusion that his
Office of the Solicitor-General Hilado for appellee. evident intention was to enter by means of force said store against the will of its owner. That
his final objective, once he succeeded in entering the store, was to rob, to cause physical injury
RECTO, J.: to the inmates, or to commit any other offense, there is nothing in the record to justify a
concrete finding.1avvphil.ñet
The defendant Aurelio Lamahang is before this court on appeal from a decision of the Court of
First Instance of Iloilo, finding him guilty of attempted robbery and sentencing him to suffer It must be borne in mind (I Groizard, p. 99) that in offenses not consummated, as the material
two years and four months of prision correccional and to an additional penalty of ten years and damage is wanting, the nature of the action intended (accion fin) cannot exactly be
one day of prision mayor for being an habitual delinquent, with the accessory penalties of the ascertained, but the same must be inferred from the nature of the acts executed ( accion
law, and to pay the costs of the proceeding. medio). Hence, the necessity that these acts be such that by their very nature, by the facts to
which they are related, by the circumstances of the persons performing the same, and by the
At early dawn on March 2, 1935, policeman Jose Tomambing, who was patrolling his beat on things connected therewith, they must show without any doubt, that they are aimed at the
Delgado and C.R. Fuentes streets of the City of Iloilo, caught the accused in the act of making consummation of a crime. Acts susceptible of double interpretation , that is, in favor as well as
an opening with an iron bar on the wall of a store of cheap goods located on the last named against the culprit, and which show an innocent as well as a punishable act, must not and can
street. At that time the owner of the store, Tan Yu, was sleeping inside with another Chinaman. not furnish grounds by themselves for attempted nor frustrated crimes. The relation existing
The accused had only succeeded in breaking one board and in unfastening another from the between the facts submitted for appreciation and the offense which said facts are supposed to
wall, when the policeman showed up, who instantly arrested him and placed him under produce must be direct; the intention must be ascertained from the facts and therefore it is
custody. necessary, in order to avoid regrettable instances of injustice, that the mind be able to directly
infer from them the intention of the perpetrator to cause a particular injury. This must have
been the intention of the legislator in requiring that in order for an attempt to exist, the offender

1
must commence the commission of the felony directly by overt acts, that is to say, that the and mitigating circumstances and sentenced to three months and one day of arresto mayor,
acts performed must be such that, without the intent to commit an offense, they would be with the accessory penalties thereof and to pay the costs.
meaningless.
Avanceña, C.J., Abad Santos, Hull, and Vickers, JJ., concur.
Viada (Vol. I, p. 47) holds the same opinion when he says that "the overt acts leading to the
commission of the offense, are not punished except when they are aimed directly to its
execution, and therefore they must have an immediate and necessary relation to the offense."

Considering — says the Supreme Court of Spain in its decision of March 21, 1892 — that in
order to declare that such and such overt acts constitute an attempted offense it is necessary
that their objective be known and established, or that said acts be of such nature that they
themselves should obviously disclose the criminal objective necessarily intended, said objective
and finality to serve as ground for the designation of the offense: . . . .

In view of the foregoing, we are of the opinion, and so hold that the fact under consideration
does not constitute attempted robbery but attempted trespass to dwelling (People vs. Tayag
and Morales, 59 Phil., 606, and decisions of the Supreme Court of Spain therein cited). Under
article 280 of the Revised Penal Code, this offense is committed when a private person shall
enter the dwelling of another against the latter's will. The accused may be convicted and
sentenced for an attempt to commit this offense in accordance with the evidence and the
following allegation contained in the information: "... the accused armed with an iron bar forced
the wall of said store by breaking a board and unfastening another for the purpose of entering
said store ... and that the accused did not succeed in entering the store due to the presence
of the policeman on beat Jose Tomambing, who upon hearing the noise produced by the
breaking of the wall, promptly approached the accused ... ." Under the circumstances of this
case the prohibition of the owner or inmate is presumed. (U.S. vs. Ostrea, 2 Phil., 93; U.S. vs.
Silvano, 31 Phil., 509' U.S. vs. Ticson, 25 Phil., 67; U.S. vs. Mesina, 21 Phil., 615; U.S. vs.
Villanueva, 18 Phil., 215; U.S. vs. Panes, 25 Phil., 292.) Against the accused must be taken
into consideration the aggravating circumstances of nighttime and former convictions, —
inasmuch as the record shows that several final judgments for robbery and theft have been
rendered against him — and in his favor, the mitigating circumstance of lack of instruction.
The breaking of the wall should not be taken into consideration as an aggravating circumstance
inasmuch as this is the very fact which in this case constitutes the offense of attempted trespass
to dwelling.

The penalty provided by the Revised Penal Code for the consummated offense of trespass to
dwelling, if committed with force, is prision correccional in its medium and maximum periods
and a fine not exceeding P1,000 (art. 280, par. 2); therefore the penalty corresponding to
attempted trespass to dwelling is to degrees lower (art. 51), or, arresto mayor in its minimum
and medium periods. Because of the presence of two aggravating circumstances and one
mitigating circumstance the penalty must be imposed in its maximum period. Pursuant to article
29 of the same Code, the accused is not entitled to credit for one-half of his preventive
imprisonment.

Wherefore, the sentence appealed from is revoked and the accused is hereby held guilty of
attempted trespass to dwelling, committed by means of force, with the aforesaid aggravating

2
 The undersigned City Fiscal accuses BIENVENIDO SALVILLA, REYNALDO CANASARES,
RONALDO CANASARES, and SIMPLICIO CANASARES, whose maternal surnames, dated and
places of birth cannot be ascertained of the crime of ROBBERY WITH SERIOUS PHYSICAL
INJURIES AND SERIOUS ILLEGAL DETENTION (Art, 294, paragraph 3, in conjunction with
Article 267 of the Revised Penal Code), committed as follows:

That on or about the 12th day of April, 1986, in the City of Iloilo, Philippines and within the
jurisdiction of this Court, said accused, conspiring and confederating among themselves,
working together and helping one another, armed with guns and handgrenade and with the
use of violence or intimidation employed on the person of Severino Choco, Mary Choco, Mimie
Choco and Rodita Hablero did then and there wilfully, unlawfully and criminally take and carry
away, with intent of gain, cash in the amount of P20,000.00, two (2) Men's wrist watches, one
(1) Lady's Seiko quartz wrist watch and one (1) Lady's Citizen wrist watch and assorted
jewelries, all valued at P50,000.00; that on the occasion and by reason of said robbery, Mary
Choco suffered serious physical injuries under paragraph 2 of Article 263, Bienvenido Salvilla
likewise suffered serious physical injuries and Reynaldo Canasares also suffered physical
injuries; that the said accused also illegally detained, at the compound of the New Iloilo Lumber
Company, Iznart Street, Iloilo City, Severino Choco, owner/proprietor of said Lumber Company,
Mary Choco, Mimie Choco, who is a minor, being 15 years of age, and Rodita Hablero, who is
a salesgirl at said Company; that likewise on the occasion of the robbery, the accused also
asked and were given a ransom money of P50,000.00; that the said crime was attended by
aggravating circumstances of band, and illegal possession of firearms and explosives; that the
amount of P20,000.00, the ransom money of P50,000.00, two (2) Men's wrist watches, two
G.R. No. 86163 April 26, 1990 (2) lady's wrist watches, one (1) .38 caliber revolver and one (1) live grenade were recovered
from the accused; to the damage and prejudice of the New Iloilo Lumber Company in the
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, amount of P120,000.00.
vs.
The evidence for the prosecution may be re-stated as follows:
BIENVENIDO SALVILLA, REYNALDO CANASARES, RONALDO CANASARES,
and SIMPLICIO CANASARES, BIENVENIDO SALVILLA, defendant-appellant. On 12 April 1986, a robbery was staged by the four accused at the New Iloilo Lumber Yard at
about noon time. The plan was hatched about two days before. The accused were armed with
The Solicitor General for plaintiff-appellee. homemade guns and a hand grenade. When they entered the establishment, they met Rodita
Resurreccion S. Salvilla for defendant-appellant. Hablero an employee thereat who was on her way out for her meal break and announced to
her that it was a hold-up. She was made to go back to the office and there Appellant Salvilla
pointed his gun at the owner, Severino Choco, and his two daughters, Mary and Mimie the
latter being a minor 15 years of age, and told the former that all they needed was money.
MELENCIO-HERRERA, J.: Hearing this, Severino told his daughter, Mary, to get a paper bag wherein he placed
P20,000.00 cash (P5,000.00, according to the defense) and handed it to Appellant. Thereafter,
Accused Bienvenido Salvilla alone appeals from the Decision of the Regional Trial Court, Branch Severino pleaded with the four accused to leave the premises as they already had the money
28, Iloilo City, * dated 29 August 1988, in Criminal Case No. 20092, finding him and his co- but they paid no heed. Instead, accused Simplicio Canasares took the wallet and wristwatch of
accused Reynaldo, Ronaldo and Simplicio, all surnamed Canasares, guilty beyond reasonable Severino after which the latter, his two daughters, and Rodita, were herded to the office and
doubt of the crime of "Robbery with Serious Physical Injuries and Serious Illegal Detention" kept there as hostages.
and sentencing them to suffer the penalty of reclusion perpetua.
At about 2:00 o'clock of the same day, the hostages were allowed to eat. The four accused
The Information filed against them reads: also took turns eating while the others stood guard. Then, Appellant told Severino to produce

3
P100,000.00 so he and the other hostages could be released. Severino answered that he could
not do so because it was a Saturday and the banks were closed.
In the meantime, police and military authorities had surrounded the premises of the lumber
yard. Major Melquiades B. Sequio Station Commander of the INP of Iloilo City, negotiated with
the accused using a loud speaker and appealed to them to surrender with the assurance that
no harm would befall them as he would accompany them personally to the police station. The
accused refused to surrender or to release the hostages.
Thereafter, OIC Mayor, Rosa Caram, of Iloilo City arrived and joined the negotiations. In her
dialogue with the accused, which lasted for about four hours, Appellant demanded
P100,000.00, a coaster, and some raincoats. She offered them P50,000.00 instead, explaining
the difficulty of raising more as it was a Saturday. Later, the accused agreed to receive the
same and to release Rodita to be accompanied by Mary Choco in going out of the office. When
they were out of the door, one of the accused whose face was covered by a handkerchief,
gave a key to Mayor Caram. With this, Mayor Caram unlocked the padlocked door and handed
to Rodita the P50,000.00, which the latter, in turn, gave to one of the accused. Rodita was
later set free but Mary was herded back to the office.
Mayor Caram, Major Sequio and even volunteer radio newscasters continued to appeal to the
accused to surrender peacefully but they refused.1âwphi1 UItimatums were given but the
accused did not budge. Finally, the police and military authorities decided to launch an offensive
and assault the place. This resulted in injuries to the girls, Mimie and Mary Choco as well as to
the accused Ronaldo and Reynaldo Canasares. Mary suffered a "macerated right lower
extremity just below the knee" so that her right leg had to be amputated. The medical
certificate described her condition as "in a state of hemorrhagic shock when she was brought
in to the hospital and had to undergo several major operations during the course of her
confinement from April 13, 1986 to May 30, 1986."
For his part, Appellant Salvilla confirmed that at about noon time of 12 April 1986 he and his
co-accused entered the lumber yard and demanded money from the owner Severino Choco He
demanded P100,000.00 but was given only P5,000.00, which he placed on the counter of the
office of the lumber yard. He admitted that he and his co-accused kept Severino, his daughters,
and Rodita inside the office. He maintained, however, that he stopped his co-accused from
getting the wallet and wristwatch of Severino and, like the P5,000.00 were all left on the
counter, and were never touched by them. He claimed further that they had never fired on the
military because they intended to surrender. Appellant's version also was that during the
gunfire, Severino's daughter stood up and went outside; he wanted to stop her but he himself
was hit by a bullet and could not prevent her. Appellant also admitted the appeals directed to
them to surrender but that they gave themselves up only much later.
After trial, the Court a quo meted out a judgment of conviction and sentenced each of the
accused "to suffer the penalty of reclusion perpetua, with the accessory penalties provided by
law and to pay the costs."
Appellant Salvilla's present appeal is predicated on the following Assignments of Error:
1. The lower court erred in holding that the crime charged was consummated and in not holding
that the same was merely attempted.
2. The lower court erred in not appreciating the mitigating circumstance of voluntary
surrender."
Upon the facts and the evidence, we affirm.
The defense contends that "The complete crime of larceny (theft/robbery) as distinguished
from an attempt requires asportation or carrying away, in addition to the taking, In other
words, the crime of robbery/theft has three consecutive stages: 1) the giving 2) the taking and
3) the carrying away or asportation And without asportation the crime committed is only
attempted" (Memorandum for Appellant Salvilla, Records, p. 317).
There is no question that in robbery, it is required that there be a taking of personal property
belonging to another. This is known as the element of asportation the essence of which is the
taking of a thing out of the possession of the owner without his privity and consent and without
the animus revertendi (Aquino, Revised Penal Code, p. 97, citing 5 C.J. 607). In fact, if there
is no actual taking, there can be no robbery. Unlawful taking of personal property of another
is an essential part of the crime of robbery.
Appellant insists that while the "giving" has been proven, the "taking" has not. And this is
because neither he nor his three co-accused touched the P5,000.00 given by Severino nor the
latter's wallet or watch during the entire incident; proof of which is that none of those items
were recovered from their persons.
Those factual allegations are contradicted by the evidence. Rodita, the lumberyard employee,
testified that upon demand by Appellant, Severino put P20,000.00 inside a paper bag and
subsequently handed it to Appellant. In turn, accused Simplicio Canasares took the wallet and
wristwatch of Severino. In respect of the P50,000.00 from Mayor Caram, Rodita declared that
the Mayor handed the amount to her after she (the Mayor) had opened the padlocked door
and that she thereafter gave the amount to one of the holduppers. The "taking" was, therefore,
sufficiently proved (TSN, July 1, 1987, pp. 12-13, 15-16, 27-31). The money demanded, and
the wallet and wristwatch were within the dominion and control of the Appellant and his co-
accused and completed the taking.
The State established a "taking" sufficient to support a conviction of robbery even though the
perpetrators were interrupted by police and so did not pick up the money offered by the victim,
where the defendant and an accomplice, armed with a knife and a club respectively, had
demanded the money from the female clerk of a convenience store, and the clerk had complied
with their instructions and placed money from the register in a paper bag and then placed the
bag on the counter in front of the two men; these actions brought the money within the
dominion and control of defendant and completed the taking. (Johnson vs. State, 432 So 2d
758).
"Severance of the goods from the possession of the owner and absolute control of the property
by the taker, even for an instant, constitutes asportation (Adams vs. Commonwealth, 154 SW
4
381; State vs. Murray, 280 SW 2d 809; Mason vs. Commonwealth, 105 SE 2d 149) [Emphasis
supplied].
It is no defense either that Appellant and his co-accused had no opportunity to dispose of the
personalities taken. That fact does not affect the nature of the crime, From the moment the
offender gained possession of the thing, even if the culprit had no opportunity to dispose of
the same, the unlawful taking is complete (Reyes, Revised Penal Code Annotated, Book II,
1981 ed., p. 594).
The crime is consummated when the robber acquires possession of the property, even if for a
short time, and it is not necessary that the property be taken into the hands of the robber, or
that he should have actually carried the property away, out of the physical presence of the
lawful possessor, or that he should have made his escape with it" (People vs. Quinn, 176 P 2d
404; Woods vs. State, 220 SW 2d 644; People vs. Beal, 39 P 2d 504; People vs. Clark, 160 P
2d 553).
Contrary to Appellant's submission, therefore, a conviction for consummated and not merely
attempted Robbery is in order.
It is the contention of Appellant that Rodita could not have seen the taking because the place
was dark since the doors were closed and there were no windows. It will be recalled, however,
that Rodita was one of the hostages herself and could observe the unfolding of events. Her
failure to mention the taking in her sworn statement would not militate against her credibility,
it being settled that an affidavit is almost always incomplete and inaccurate and does not
disclose the complete facts for want of inquiries or suggestions (People vs. Andaya, G.R. No.
L-63862, 31 July 1987, 152 SCRA 570; People vs. Tan, et al., 89 Phil. 337 [1951]).
The fact, too, that Rodita was an employee of Severino would not lessen her credibility. The
defense has not proven that she was actuated by any improper motive in testifying against the
accused.
In the last analysis, the basic consideration centers around the credibility of witnesses in
respect of which the findings of the Trial Court are entitled to great weight as it was in a
superior position to assess the same in the course of the trial (see People vs. Ornoza G.R. No.
L-56283, 30 June 1987, 151 SCRA 495; People vs. Alcantara, G.R. No. L-38042, 30 June 1987,
151 SCRA 326).
Anent the second assignment of error, the "surrender" of the Appellant and his co-accused
cannot be considered in their favor to mitigate their liability. To be mitigating, a surrender must
have the following requisites: (a) that the offender had not been actually arrested; (b) that the
offender surrendered himself to a person in authority or to his agent; and (c) that the surrender
was voluntary (People vs. Canamo, G.R. No. L-62043, 13 August 1985, 138 SCRA 141).
The "surrender" by the Appellant and his co-accused hardly meets these requirements. They
were, indeed, asked to surrender by the police and military authorities but they refused until
only much later when they could no longer do otherwise by force of circumstances when they
knew they were completely surrounded and there was no chance of escape. The surrender of
the accused was held not to be mitigating as when he gave up only after he was surrounded
by the constabulary and police forces (People vs. Sigayan et al., G.R. Nos. L-18523-26, 30 April
1966, 16 SCRA 839; People vs. Mationg G.R. No. L-33488, 29 March 1982, 113 SCRA 167).
Their surrender was not spontaneous as it was motivated more by an intent to insure their
safety. And while it is claimed that they intended to surrender, the fact is that they did not
despite several opportunities to do so. There is no voluntary surrender to speak of (People vs.
Dimdiman 106 Phil. 391 [1959]).
All told, the assigned errors remain unsubstantiated and we find the guilt of the accused-
appellant, Bienvenido Salvilla, established beyond reasonable doubt.
Although unassigned as an error, we deem it necessary to turn now to the nature of the linked
offenses involved and the penalty imposed by the Trial Court.
Appellant and his co-accused were charged in the Information with "Robbery with Serious
Physical Injuries and Serious Illegal Detention ("Art. 295, par. 3, in conjunction with Art. 267,
RPC )and sentenced to reclusion perpetua. We agree with the Trial Court that a complex crime
under Article 48 of the Revised Penal Code has been committed such that the penalty for the
more serious offense of Serious Illegal Detention (Art. 267, Revised Penal Code), or "reclusion
perpetua to death," is to be imposed instead of the penalty prescribed for Robbery with Serious
Physical Injuries (Art. 294 (3), which is reclusion temporal.
Under Article 48, a complex crime arises "when an offense is a necessary means for committing
the other." The term "necessary means" does not connote indispensable means for if it did
then the offense as a "necessary means" to commit another would be an indispensable element
of the latter and would be an ingredient thereof. The phrase "necessary means" merely signifies
that one crime is committed to facilitate and insure the commission of the other (Aquino,
Revised Penal Code, Vol. I, 1987 ed., p. 624, citing Dissent, Montemayor, J., Amado Hernandez,
99 Phil. 515). In this case, the crime of Serious Illegal Detention was such a "necessary means"
as it was selected by Appellant and his co-accused to facilitate and carry out more effectively
their evil design to stage a robbery.
The facts of this case differ from those in People vs. Astor, et al. (G.R. Nos. L-71765-66, 29
April 1987, 149 SCRA 325) where the accused were convicted of Robbery but acquitted in the
case for Serious Illegal Detention and where it was held that "the detention is absorbed in the
crime of robbery." For one, in Astor, there were two (2) separate Informations filed, one for
Robbery and another for Serious Illegal Detention. In the present case, only one Information
was filed charging the complex offense. For another, in Astor, the robbery had already been
consummated and the detention was merely to forestall the capture of the robbers by the
police. Not so in this case, where the detention was availed of as a means of insuring the
consummation of the robbery. Further, in Astor, the detention was only incidental to the main
crime of robbery so that it was held therein:
. . . were appellants themselves not trapped by the early arrival of the police at the scene of
the crime, they would have not anymore detained the people inside since they have already
completed their job. Obviously, appellants were left with no choice but to resort to detention
of these people as security, until arrangements for their safe passage were made. This is not
5
the crime of illegal detention punishable under the penal laws but an act of restraint in order
to delay the pursuit of the criminals by peace officers (People v. Sol, 9 Phil. 265; People v.
Uday 55 Phil. 167, cited in the Revised Penal Code, Aquino, Vol. 3, 1976 ed., p. 1337). Where
the victims in a robbery case were detained in the course of robbery, the detention is absorbed
by the crime of robbery (P. v. Baysa, 92 Phil. 1008, id.). In the case at bar, the detention was
only incidental to the main crime of robbery, and although in the course thereof women and
children were also held, that threats to kill were made, the act should not be considered as a
separate offense. Appellants should only be held guilty of robbery.

In contract, the detention in the case at bar was not only incidental to the robbery but was a
necessary means to commit the same.1âwphi1 After the amount of P20,000.00 was handed to
Appellant, the latter and his co-accused still refused to leave. The victims were then taken as
hostages and the demand to produce an additional P100,000.00 was made as a prerequisite
for their release. The detention was not because the accused were trapped by the police nor
were the victims held as security against the latter. The detention was not merely a matter of
restraint to enable the malefactors to escape, but deliberate as a means of extortion for an
additional amount. The police and other authorities arrived only much later after several hours
of detention had already passed. And, despite appeals to appellant and his co-accused to
surrender, they adamantly refused until the amount of P100,000.00 they demanded could be
turned over to them. They even considered P50,000.00, the amount being handed to them, as
inadequate.

The foregoing features also distinguish this case from those of U.S. v. Sol, 9 Phil. 265 [1907]
where the restraint was for no other purpose than to prevent the victims from reporting the
crime to the authorities; from People v. Gamboa, 92 Phil. 1085 [1953] where the victims were
taken to a place one kilometer away and shot in order to liquidate the witnesses to the robbery;
from People v. Baysa, 92 Phil. 1008 [1953]; People v. Manzanilla, 43 Phil. 167 [1922], all of
which cases were cited in Astor and where the victims were only incidentally detained so that
the detention was deemed absorbed in robbery.

In other words, unlike in the above cases, the elements of the offense of Serious Illegal
Detention are present in this case. The victims were illegally deprived of their liberty. Two
females (Mary and Minnie) and a minor (Minnie), a specified circumstance in Article 267 (3),
were among those detained. The continuing detention was also for the purpose of extorting
ransom, another listed circumstance in Article 267 (last parag.) not only from the detained
persons themselves but even from the authorities who arrived to rescue them.

It follows then that as the detention in this case was not merely incidental to the robbery but
a necessary means employed to facilitate it, the penalty imposed by the Trial Court is proper.

WHEREFORE, the judgment appealed from is hereby AFFIRMED. Proportionate costs.

SO ORDERED.

Paras, Padilla Sarmiento and Regalado JJ., concur.

6
 On the evening of the same day, Mooney was in the store of a neighbor by the name of
Perpetua Najarro. He had taken a seat on a chair in front of the Perpetua, his back being to
the window. Mooney had not been there long when Perpetua saw Basilio Borinaga from the
window strike with a knife at Mooney, but fortunately for the latter, the knife lodged in the
back of the chair on which Mooney was seated. Mooney fell from the chair as a result of the
force of the blow, but was not injured. Borinaga ran away towards the market place. Before
this occurred, it should be stated that Borinaga had been heard to tell a companion: "I will stab
this Mooney, who is an American brute." After the attack, Borinaga was also heard to say that
he did not hit the back of Mooney but only the back of the chair. But Borinaga was persistent
in his endeavor, and hardly ten minutes after the first attack, he returned, knife in hand, to
renew it, but was unable to do so because Mooney and Perpetua were then on their guard and
turned a flashlight on Borinaga, frightening him away. Again the same night, Borinaga was
overheard stating that he had missed his mark and was unable to give another blow because
of the flashlight. The point of the knife was subsequently, on examination of the chair, found
embedded in it.

The foregoing occurrences gave rise to the prosecution of Basilio Borinaga in the Court of First
Instance of Leyte for the crime of frustrated murder. The defense was alibi, which was not
given credence. The accused was convicted as charged, by Judge Ortiz, who sentenced him to
fourteen years, eight months, and one day of imprisonment, reclusion temporal, with the
accessory penalties and the costs.
G.R. No. 33463 December 18, 1930
The homicidal intent of the accused was plainly evidenced. The attendant circumstances
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, conclusively establish that murder was in the heart and mind of the accused. More than mere
menaces took place. The aggressor stated his purpose, which was to kill, and apologized to his
vs.
friends for not accomplishing that purpose. A deadly weapon was used. The blow was directed
BASILIO BORINAGA, defendant-appellant.
treacherously toward vital organs of the victim. The means used were entirely suitable for
accomplishment. The crime should, therefore, be qualified as murder because of the presence
Paulo Jaro for appellant.
of the circumstance of treachery.
Attorney-General Jaranilla for appellee.
The only debatable question, not referred to in the briefs, but which must be decided in order
to dispose of the appeal, is: Do the facts constitute frustrated murder or attempted murder
within the meaning of article 3 of the Penal Code? Although no exact counterpart to the facts
at bar has been found either in Spanish or Philippine jurisprudence, a majority of the court
MALCOM, J.:
answer the question propounded by stating that the crime committed was that of frustrated
Sometime prior to March 4, 1929, an American by the name of Harry H. Mooney, a resident of murder. This is true notwithstanding the admitted fact that Mooney was not injured in the
the municipality of Calubian, Leyte, contracted with one Juan Lawaan for the construction of a least.
fish corral. Basilio Borinaga was associated with Lawaan in the construction of the corral. On
The essential condition of a frustrated crime, that the author perform all the acts of execution,
the morning of March 4, 1929, Lawaan, with some of his men, went to Mooney's shop and
attended the attack. Nothing remained to be done to accomplish the work of the assailant
tried to collect from him the whole amount fixed by the contract, notwithstanding that only
completely. The cause resulting in the failure of the attack arose by reason of forces
about two-thirds of the fish corral had been finished. As was to be expected, Mooney refused
independent of the will of the perpetrator. The assailant voluntarily desisted from further acts.
to pay the price agreed upon at that time. On hearing this reply of Mooney, Lawaan warned
What is known as the subjective phase of the criminal act was passed. (U. S. vs. Eduave [1917],
him that if he did not pay, something would happen to him, to which Mooney answered that if
36 Phil., 209; People vs. Mabugat [1926], 51 Phil., 967.)
they wanted to do something to him they should wait until after breakfast, Lawaan then left
with his men, and Mooney, after partaking of his morning meal, returned to his shop.

7
No superfine distinctions need be drawn in favor of that accused to establish a lesser crime
than that of frustrated murder, for the facts disclose a wanton disregard of the sanctity of
human life fully meriting the penalty imposed in the trial court.
Based on foregoing considerations, the judgment appealed from will be affirmed, with the costs
of this instance against the appellant.
Avanceña, C.J., Villamor, Ostrand, Johns and Romualdez, JJ., concur.lawphi1>net
Separate Opinions
VILLA-REAL, J., dissenting:
We dissent from the opinion of the majority in so far as it finds the defendant-appellant guilty
of the crime of frustrated murder instead of that of an attempt to commit murder.
Article 3 of the Penal Code provides as follows:
ART. 3. Frustrated felonies and attempts to commit felonies are punishable, as well as those
which are consummated.
A felony is frustrated when the offender performs all the acts of execution which should
produce the felony as a consequence, but which, nevertheless, do no produce it by reason of
causes independent of the will of the perpetrator.
There is an attempt when the offender commences the commission of the felony directly by
overt acts, and does not perform all the acts of execution which constitute the felony by reason
of some cause or accident other than his own voluntary desistance.
The pertinent facts as found by the court below and by this court are the following:
On the evening of the same day, Mooney was in the store of a neighbor by the name of
Perpetua Najarro. He had taken a seat on a chair in front of Perpetua, his back being to the
window. Mooney had not been there long when Perpetua saw Basilio Borinaga from the window
strike with a knife at Mooney, but fortunately for the latter, the knife lodged in the back of the
chair on which Mooney was seated. Mooney fell from the chair as a result of the force of the
blow, but was not injured. Borinaga ran away towards the market place. Before this occurred,
it should be stated that Borinaga had been heard to tell a companion: "I will stab this Mooney,
who is an American brute." After the attack, Borinaga was also heard to say that he did not hit
the back of Mooney but only the back of the chair. But Borinaga was persistent in his endeavor,
and hardly ten minutes after the first attack, he returned, knife in hand, to renew it, but was
unable to do so because Mooney and Perpetua were then on their guard and turned a flashlight
on Borinaga, frightening him away. Again that same night, Borinaga was overheard stating
that he had missed his mark and was unable to give another blow because of the flashlight.
The point of the knife was subsequently, on examination of the chair, found embedded in it.
Since the facts constituting frustrated felony and those constituting an attempt to commit
felony are integral parts of those constituting consummated felony, it becomes important to
know what facts would have been necessary in order that the case at bar might have been a
consummated murder, so that we may determine whether the facts proved during the trial
constitute frustrated murder or simply an attempt to commit murder.
In order that the crime committed by the defendant-appellant might have been a consummated
murder it would have been necessary for him to have inflicted a deadly wound upon a vital
spot of the body of Mooney, with treachery, as a result of which he should have died.
Since according to the definition given by the Code a frustrated felony is committed "when the
offender performs all the acts of execution which should produce the felony as a consequence,
but which, nevertheless, do not produce it by reason of causes independent of the will of the
perpetrator" let us examine the facts of record to find out whether the said defendant-appellant
has performed all the acts of execution which should produce the murder of Mooney as a
consequence. The prisoner at bar, intending to kill Mooney, approached him stealthily from
behind and made movement with his right hand to strike him in the back with a deadly knife,
but the blow, instead of reaching the spot intended, landed on the frame of the back of the
chair on which Mooney was sitting at the time and did not cause the slightest physical injury
on the latter. The acts of execution performed by the defendant-appellant did not produce the
death of Mooney as a consequence nor could they have produced it because the blow did not
reach his body; therefore the culprit did not perform all the acts of execution which should
produce the felony. There was lacking the infliction of the deadly wound upon a vital spot of
the body of Mooney.
It is true that the frame of the back of the chair stood between the deadly knife and the back
of Mooney; but what it prevented was the wounding of said Mooney in the back and not his
death, had he been wounded. It is the preventing of death by causes independent of the will
of the perpetrator, after all the acts of execution which should produce the felony as a
consequence had been performed, that constitutes frustrated felony, according to the law, and
not the preventing of the performance of all the acts of execution which constitute the felony,
as in the present case. The interference of the frame of the back of the chair which prevented
the defendant-appellant from wounding Mooney in the back with a deadly knife, made his acts
constitute an attempt to commit murder; for he had commenced the commission of the felony
directly by overt acts, and did not perform all the acts of execution which constitute the felony
by reason of a cause or accident other than his own voluntary desistance.
The foregoing considerations force us to the conclusion that the facts alleged in the information
and proved during the trial are not sufficient to constitute the crime of frustrated murder, but
simply the crime of an attempt to commit murder.
Johnson and Street, JJ., concur.
8
 The evidence for the prosecution shows that early in the morning of September 3, 1949, the
defendant-appellant entered the store at 511 Misericordia, Sta Cruz, Manila. Once inside he
started firing a .45 caliber pistol that he had in his hand. The first one shot was Jose Sy. Tan
Siong Kiap, who was in the store and saw the accused enter and afterwards fire a shot at Jose
Sy, asked the defendant-appellant, "What is the idea?" Thereupon defendant-appellant turned
around and fired at him also. The bullet fired from defendant-appellant's pistol entered the
right shoulder of Tan Siong Kiap immediately ran to a room behind the store to hide. From
there he still heard gunshot fired from defendant-appellant's pistol, but afterwards defendant-
appellant ran away.

Tan Siong Kiap was brought to the Chinese General Hospital, where his wound was treated.
He stayed there from September 3 to September 12, 1949, when he was released upon his
request and against the physician's advice. He was asked to return to the hospital for further
treatment, and he did so five times for a period of more than ten days. Thereafter his wound
was completely healed. He spent the sum of P300 for hospital and doctor's fees.

The defendant-appellant shot two other persons in the morning of September 3, 1949, before
shooting and wounding Tan Siong Kiap; one was Ong Pian and the other Jose Sy. On
September 5 information was received by the Manila Police Department that defendant-
appellant was in custody of the Constabulary in Tarlac, so a captain of the Manila police by the
name of Daniel V. Lomotan proceeded to Tarlac. There he saw the defendant-appellant and
had a conversation with him. On this occasion defendant-appellant and had a conversation
with him. On this occasion defendant-appellant admitted to Lomotan that his victims were Tan
Siong Kiap, Ong Pian, and Jose Sy. The Constabulary in Tarlac also delivered to Lomotan the
pistol used by the defendant-appellant, marked Exhibit C, and its magazine, Exhibit C-1, both
G.R. No. L-5848 April 30, 1954 of which the Constabulary had confiscated from the defendant-appellant. The defendant-
appellant was thereupon delivered to the custody of Lomotan, and the latter brought him to
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, Manila, where his statement was taken down in writing. This declaration was submitted at the
vs. time of the trial as Exhibit D, and it contains all the details of the assaults that defendant-
SY PIO, alias POLICARPIO DE LA CRUZ, defendant-appellant. appellant 3 against the persons of Tan Siong Kiap, Ong Pian, and Jose Sy. This written
statement was taken down on a typewriter and afterwards signed by the defendant-appellant
Exequiel Zaballero, Jr. for appellant. in both his Chinese and Filipino names, the latter being Policarpio de la Cruz.
Assistant Solicitor General Guillermo E. Torres and Solicitor Florencio Villamor for appellee. According to the declaration of the defendant-appellant, some months prior to September 3,
LABRADOR, J.: 1949, he was employed as an attendant in a restaurant belonging to Ong Pian. Defendant-
appellant's wife by the name of Vicenta was also employed by Ong Pian's partner, Eng Cheng
This is an appeal from a judgment of the Court of First Instance of Manila finding the defendant- Suy. Prior to September 3 the relatives of his wife had been asking the latter for help, because
appellant herein Sy Pio, alias Policarpio de la Cruz, guilty of frustrated murder against the her father was sick. Defendant-appellant asked money from Ong Pian, but the latter could only
person of Tan Siong Kiap, and sentencing him to suffer an indeterminate sentence of 6 years, give him P1. His wife was able to borrow P20 from her employer, and this was sent to his wife's
1 month, and 11 days of prision mayor, to 14 years, 8 months, and 1 day of reclusion temporal, parents in Cebu. Afterwards defendant-appellant was dismissed from his work at the restaurant
to indemnify the offended party Tan Siong Kiap in the sum of P350, without subsidiary of Ong Pian, and he became a peddler. Ong Pian presented a list of the sums that defendant-
imprisonment in case of insolvency, and to pay the costs. The case was appealed to the Court appellant had borrowed from him, and these sums were deducted from the salary of his wife.
of Appeals, but that court certified it to this Court under the provisions of section 17 (4) of Defendant-appellant did not recognize these sums as his indebtedness, and so he resented
Republic Act No. 296, on the ground that the crime charged was committed on the same Ong Pian's conduct.
occasion that the defendant-appellant had committed crime of murder, with which the
defendant-appellant was also charged.

9
As to Tan Siong Kiap, the confession states that a few days before September 3, 1949,
defendant-appellant had been able to realize the sum of P70 from the sales of medicine that
he peddled. He laid his money in a place in his room, but the following morning he found that
it had disappeared from the place in which he had placed it. Tan Siong Kiap and Jose Sy, upon
the discovery of the loss of money, told defendant-appellant that he must have given the
money to his wife, and that nobody had stolen it. After this incident of the loss, the defendant-
appellant used to hear Tan Siong Kiap and Jose Sy and other Chinamen say that the money
had not been actually stolen, but that he lost it in gambling. Because of these accusations
against him, he nurtured resentment against both Tan Siong Kiap and Jose Sy.
So early in the morning of September 3, while a Chinaman by the name of Ngo Cho, who the
possessor of a caliber .45 pistol, was away from his room, defendant-appellant got his pistol
and tucked it in his belt. With this pistol he went to the restaurant at 822 Ongpin, and there
shot Ong Pian. After shooting him, he proceeded to 511 Misericordia, in store where Jose Sy
and Tan Siong Kiap were, and there he fired at them. Then he escaped to Legarda Street, in
Sampaloc, where he borrowed P1 from his relatives. From there he went to Malabon, to the
house of his mother, to whom he told he had killed two persons and from he asked money.
The foregoing is the substance of the written declaration made by the defendant-appellant in
Exhibit D on September 6, 1949. At the time of the trial, however, he disowned the confession
and explained that he signed it without having read its contents. He declared that it was not
he who shot the three victims, but it was one by the name of Chua Tone, with whom he had
previously connived to kill the three other victims. He introduced no witnesses, however, to
support his denial. Neither did he deny that he admitted before Captain Lomotan having killed
the three persons, or having been found in Tarlac in possession of the caliber .45 pistol, Exhibit
C, and its magazine, Exhibit C-1. In his cross-examination he admitted many of the incidents
mentioned in the confession, especially the cause of his resentment against his victims Ong
Pian, Jose Sy, and Tan Siong Kiap.
The trial court refused to believed his testimony, and therefore, found him guilty of the crime
charged.
On this appeal counsel for the defendant-appellant claims that the trial court erred in not
finding that Tan Siong Kiap received the shot accidentally from the same bullet that had been
fired at Jose Sy, and in finding that defendant-appellant has committed a crime distinct and
separate from that of murder for the slaying of Jose Sy. We find no merit in this contention.
According to the uncontradicted testimony of the offended party Tan Siong Kiap, when the
latters saw defendant-appellant firing shots he asked him why he was doing so, and the
defendant-appellant, instead of answering him, turned around and fired at him also. It is not
true, therefore, that the shot which hit him was fired at Sy.
It is also contended that the evidence is not sufficient to sustain the judgment of conviction.
We also find no merit in this contention. The evidence submitted to prove the charge consists
of: the uncontradicted testimony of the victim himself; the admissions made verbally by the
defendant-appellant before Captain Lomotan in Tarlac; the fact that the defendant-appellant
had escaped and was found in Tarlac; his possession of the .45 caliber pistol coupled with the
fact, attested to by the testimony of the physician who examined and treated the wounds of
Tan Siong Kiap, that the wounds found in his person must have been caused by the caliber .45
bullet; and, lastly, the confession of the defendant-appellant himself, Exhibit D, which he was
not able to impugn. As against this mass of evidence, defendant-appellant has only made a
very unbelievable story that it was not he but another that had committed the crime charged.
His admissions at the time of the trial regarding the incidents, as well as the cause of his having
assaulted his victims, coincide exactly with the reasons given in his written confession. This
shows that he had made the confession himself, for nobody but himself could have known the
facts therein stated. The claim that the offense has not been proved beyond reasonable doubt
must be dismissed.
The defendant-appellant lastly claims that the lower court also erred in sentencing him to pay
an indemnity of P350. The offended party testified that he actually spent P300 for hospital and
doctor's fees, and that he was confined in the hospital for nine days. The above facts stand
uncontradicted. This assignment of error must also be dismissed.
It is lastly contended that the defendant-appellant should be found guilty only of less serious
physical injuries instead of the crime of frustrated murder as defendant-appellant admitted in
his confession in the open court that he had a grudge against the offended party, and that he
connived with another to kill the latter. The intent to kill is also evident from his conduct in
firing the shot directly at the body of the offended party.
But while intent to kill is conclusively proved the wound inflicted was not necessarily fatal,
because it did not touch any of the vital organs of the body. As a matter of fact, the medical
certification issued by the physician who examined the wound of the offended party at the time
he went to the hospital, states that the wound was to heal within a period of fourteen days,
while the offended party actually stayed in the hospital for nine days and continued receiving
treatment thereafter five time for the period of more than ten days, or a total of not more than
thirty days. The question that needs to be determined, therefore, is: Did the defendant-
appellant perform all the acts of execution necessary to produce the death of his victim?
In the cases of U.S. vs. Eduave, 36 Phil., 209, People vs. Dagman, 47 Phil., 768 and People vs.
Borinaga, 55 Phil., 433, this Court has held that it is not necessary that the accused actually
commit all the acts of execution necessary to produce the death of his victim, but that it is
sufficient that he believes that he has committed all said acts. In the case of People vs.
Dagman, supra, the victim was first knocked down by a stone thrown at him, then attacked
with a lance, and then wounded by bolos and clubs wielded by the accused, but the victim
upon falling down feigned death, and the accused desisted from further continuing in the
assault in the belief that their victim was dead. And in the case of People vs. Borinaga, supra,
the accused stabbed his intended victim, but the knife with which he committed the aggression
instead of hitting the body of the victim, lodged in the back of the chair in which he was seated,
although the accused believed that he had already harmed him. In both these cases this Court
held that of the crime committed was that of frustrated murder, because the subjective phase
of the acts necessary to commit the offense had already passed; there was full and complete
belief on the part of the assailant that he had committed all the acts of execution necessary to
produce the death of the intended victim.
10
In the case at bar, however, the defendant-appellant fired at his victim, and the latter was hit,
but he was able to escape and hide in another room. The fact that he was able to escape,
which appellant must have seen, must have produced in the mind of the defendant-appellant
that he was not able to his his victim at a vital part of the body. In other words, the defendant-
appellant knew that he had not actually all the acts of execution necessary to kill his victim.
Under these circumstances, it can not be said that the subjective phase of the acts of execution
had been completed. And as it does not appear that the defendant-appellant continued in the
pursuit, and as a matter of fact, he ran away afterwards a reasonable doubt exist in our mind
that the defendant-appellant had actually believed that he has committed all the acts of
execution or passed the subjective phase of the said acts. This doubt must be resolved in favor
of the defendant-appellant.

We are, therefore, not prepared to find the defendant-appellant guilty of frustrated murder, as
charged in the information. We only find him guilty of attempted murder, because he did not
perform all the acts of execution, actual and subjective, in order that the purpose and intention
that he had to kill his victim might be carried out.

Therefore, the judgment appealed from should be, as it is hereby, modified and the defendant-
appellant is found guilty of the crime of attempted murder, and the sentence imposed upon
him reduced to an indeterminate penalty of from 4 years, 2 months, and 1 day of prision
correccional to 10 years of prision mayor. In all other respects the judgment is affirmed. With
costs against the defendant-appellant.

Paras, C.J., Pablo, Bengzon, Reyes, Jugo, Bautista Angelo, and Concepcion, JJ., concur.

11
 Samuel Comendador. TAN was left behind in Butuan City to dispose of the fish left at the
Langihan market. He followed SORIANO and LAROA, however, to Buenavista later in the
morning.

While at Buenavista, accused Emeliano TRINIDAD, a member of the Integrated National Police,
assigned at Nasipit Police Station, and residing at Baan, Butuan City, asked for a ride to
Bayugan, Agusan del Sur, which is on the way to Davao City. TRINIDAD was in uniform and
had two firearms, a carbine, and the other, a side-arm .38 caliber revolver. SORIANO, LAROA,
TAN, and TRINIDAD then left Butuan on 20 January 1983 at about 5:20 P.M. bound for Davao
City. TAN was driving the Fiera. Seated to his right was SORIANO, LAROA and the accused
TRINIDAD, in that order. When they reached the stretch between El Rio and Afga, TRINIDAD
advised them to drive slowly because, according to him, the place was dangerous. All of a
sudden, TAN heard two gunshots. SORIANO and LAROA slumped dead. TAN did not actually
see the shooting of LAROA but he witnessed the shooting of SORIANO having been alerted by
the sound of the first gunfire. Both were hit on the head. TRINIDAD had used his carbine in
killing the two victims.

TAN then hurriedly got off the Fiera, ran towards the direction of Butuan City and hid himself
in the bushes. The Fiera was still running slowly then but after about seven (7) to ten (10)
meters it came to a halt after hitting the muddy side of the road. TAN heard a shot emanating
from the Fiera while he was hiding in the bushes.
G.R. No. 79123-25 January 9, 1989 After about twenty (20) to thirty (30) minutes, when a passenger jeep passed by, TAN hailed
it and rode on the front seat. After a short interval of time, he noticed that TRINIDAD was
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
seated at the back. Apparently noticing TAN as well, TRINIDAD ordered him to get out and to
vs. approach him (TRINIDAD) but, instead, TAN moved backward and ran around the jeep
EMELIANO TRINIDAD, accused-appellant. followed by TRINIDAD. When the jeep started to drive away, TAN clung to its side. TRINIDAD
fired two shots, one of which hit TAN on his right thigh. As another passenger jeep passed by,
The Solicitor General for plaintiff-appellee. TAN jumped from the first jeep and ran to the second. However, the passengers in the latter
jeep told him to get out not wanting to get involved in the affray. Pushed out, TAN crawled
Citizens Legal Assistance Office for accused-appellant.
until a member of the P.C. chanced upon him and helped him board a bus for Butuan City.

MELENCIO-HERRERA, J.:
On the sole issue that the adduced evidence is insufficient to prove his guilt beyond reasonable
doubt of two crimes of Murder and one of Frustrated Murder with which he has been charged,
accused Emeliano Trinidad appeals from the judgment of the Regional Trial Court, Branch 7,
Bayugan, Agusan del Sur.
From the testimony of the principal witness, Ricardo TAN, the prosecution presents the
following factual version:
The deceased victim, Lolito Soriano, was a fish dealer based in Davao City. His helpers were
TAN, a driver, and the other deceased victim Marcial LAROA. On 19 January 1983, using a Ford
Fiera, they arrived at Butuan City to sell fish. In the morning of 20 January 1983 SORIANO
drove the Fiera to Buenavista, Agusan del Norte, together with LAROA and a helper of one
TRINIDAD's defense revolved around denial and alibi. He contended that he was in Cagayan
de Oro City on the date of the incident, 20 January 1983. At that time, he was assigned as a
policeman at Nasipit Police Station, Agusan del Norte. He reported to his post on 19 January
1983 but asked permission from his Station Commander to be relieved from work the next day,
20 January, as it was his birthday. He left Baan, his Butuan City residence, at about 3:00 P.M.
on 20 January 1983 and took a bus bound for Cagayan de Oro City. He arrived at Cagayan de
Oro at around 8:00 P.M. and proceeded to his sister's house at Camp Alagar to get his
subsistence allowance, as his sister was working thereat in the Finance Section.
At his sister's house he saw Sgt. Caalim, Mrs. Andoy, one Paelmo, in addition to his sister. Sgt.
Caalim corroborated having seen TRINIDAD then.
Continuing, TRINIDAD claimed that he left Cagayan de Oro for Butuan at lunch time on 21
January 1983 arriving at the latter place around 6:00 P.M., and went to his house directly to
12
get his service carbine. He was on his way to Nasipit to report for duty on 21 January 1983
when he was arrested at around 6:00 P.M. at Buenavista, Agusan del Norte.
After joint trial on the merits and unimpressed by the defense by the Trial Court** sentenced
the accused in an "Omnibus Decision", thus:
WHEREFORE PREMISES CONSIDERED, this Court finds Emeliano Trinidad GUILTY beyond
reasonable doubt of the crimes of Murder and Frustrated Murder.
In the Frustrated Murder, there being no mitigating circumstance, and taking into account the
provisions of the Indeterminate Sentence Law, accused Trinidad is meted out a penalty of:
1) 8 years and 1 day to 12 years of prision mayor medium;
2) to indemnify the complainant the amount of P 5,000.00; and
3) to pay the costs.
Likewise, in the two murder cases, Trinidad is accordingly sentenced:
1) to a penalty of Reclusion Perpetua in each case;
2) to indemnify the heirs of Marcial Laroa and Lolito Soriano the amount of P30,000.00 each;
and
3) to pay the cost. (p. 14, RTC Decision, p. 28, Rollo).
Before us now, TRINIDAD claims that the Trial Court erred in giving full faith and credit to
TAN's testimony who, TRINIDAD alleges, was an unreliable witness. That is not so.
We find no variance in the statement made by TAN before the NAPOLCOM Hearing Officer that
when TRINIDAD boarded the Fiera in Buenavista, he (TAN) was not in the vehicle, and that
made in open Court when he said that he was with TRINIDAD going to Butuan City on board
the Fiera. For the facts disclose that when TRINIDAD boarded the Fiera in Buenavista, TAN
was still in Langihan distributing fish. The Fiera left for Buenavista, driven by SORIANO between
6:00 to 7:00 A.M., while TAN followed only at 11:00, A.M. in another vehicle. So that when
TRINIDAD boarded the Fiera in Buenavista, TAN was not yet in that vehicle although on the
return trip from Butuan City to Davao City, TAN was already on board. In fact, TAN was the
one driving. TAN's testimony clarifying this point reads:
Q Did you not say in your direct examination that you went to Buenavista, Agusan del Norte?
A We were in Langihan and since our fishes were not consumed there, we went to Buenavista.
Q Now, what time did you leave for Buenavista from Langihan?
A It was more or less at 6:00 to 7:00 o'clock.
Q You were riding the fish car which you said?
A I was not able to take the fish car in going to Buenavista because they left me fishes to be
dispatched yet.
Q In other words, you did not go to Buenavista on January 20, 1983?
A I was able to go to Buenavista after the fishes were consumed.
Q What time did you go to Buenavista?
A It was more or less from 11:00 o'clock noon.
Q What transportation did you take?
A I just took a ride with another fish car because they were also going to dispatch fishes in
Buenavista.
Q Now, who then went to Buenavista with the fish car at about 7:00 o'clock in the morning of
January 20, 1983?
A Lolito Soriano and Marcia Laroa with his helper.
xxxxxx
Q Now, when this fish car returned to Butuan City who drove it?
A Lolito Soriano.
Q Were you with the fish car in going back to Langihan?
A Yes, sir. (T.S.N., December 6, 1985, pp. 53-54).
Felimon Comendador, also a fish vendor, and a resident of Butuan City, testified that he saw
TRINIDAD riding in the Fiera on the front seat in the company of TAN, SORIANO and LAROA,
when the Fiera stopped by his house at Butuan City (TSN, November 5, 1985, pp. 32-33).
The other inconsistencies TRINIDAD makes much of, such as, that TAN was unsure before the
NAPOLCOM Hearing Officer whether TRINIDAD was wearing khaki or fatigue uniform but, in
open Court, he testified positively that TRINIDAD was in khaki uniform; and that while TAN
declared that TRINIDAD was wearing a cap, prosecution witness Felimon Comendador said
that he was not but was in complete fatigue uniform, are actually trivial details that do not
affect the positive identification of TRINIDAD that TAN has made nor detract from the latter's
overall credibility.
Nor is there basis for TRINIDAD to contend that the absence of gunpowder burns on the
deceased victims negates TAN's claim that they were shot "point-blank." Actually, this term
refers merely to the "aim directed straight toward a target" (Webster's Third New International
Dictionary) and has no reference to the distance between the gun and the target. And in point
of fact, it matters not how far the assailant was at the time he shot the victims, the crucial
factor being whether he did shoot the victim or not.
13
TRINIDAD's defense of alibi is inherently weak and cannot prevail over the straightforward and Q Now, after you saw that the two fell dead, what did you do?
detailed descriptive narration of TAN, thus:
A I got out from the Ford Fiera while it was running.
Q Now, from Butuan City, where did you proceed?
xxxxxx
A We proceeded to Davao.
Q From the place where you were because you said you ran, what transpired next?
Q Did you in fact reach Davao on that date?
A I hid myself at the side of the jeep, at the bushes.
A No, sir.
Q While hiding yourself at the bushes, what transpired?
Q Could you tell the Court why you failed to reach Davao?
A I heard one gun burst.
A Because we were held-up.
Q From what direction was that gun bursts you heard?
Q Who held-up you?
A From the Ford Fiera, sir.
A Emeliano Trinidad, sir.
Q After that, what happened?
Q Are you referring to accused Emeliano Trinidad whom you pointed to the court awhile ago?
A At around 20 to 30 minutes, I moved out from the place where I hid myself because I wanted
A Yes, sir. to go back to Butuan, Then, I boarded the jeep and sat at the front seat but I found out that
Emeliano Trinidad was at the back seat.
Q Will you tell the Court how did Emeliano Trinidad holdup you?
Q When you found out that Trinidad was at the back, what happened?
A When we reach between El Rio and Afga, Trinidad advised us to run slowly because this
place is dangerous. Then suddenly there were two gun bursts. A He ordered me to get out.

Q Now, you heard two gun bursts. What happened? What did you see if there was any? Q Now, when you got down, what happened?

A I have found out that Lolito Soriano and Marcial Laroa already fall. A When I got out from the jeep, Trinidad also got out.

Q Fall dead? Q Tell the Court, what happened after you and Trinidad got out from the jeep?

A They were dead because they were hit at the head. A He called me because he wanted me to get near him.

Q You mean to inform the Court that these two died because of that gun shot bursts? Q What did you do?

A Yes, sir. A I moved backward.

Q Did you actually see Trinidad shooting the two? 'Q Now, what did Trinidad do?

A I did not see that it was really Trinidad who shot Laroa but since I was already alerted by A He followed me.
the first burst, I have seen that it was Trinidad who shot Soriano.
Q While Trinidad followed you, what happened?
Q What was the firearm used?
A I ran away around the jeep.
A Carbine, sir.
Q Now, while you were running around the jeep, what happened?
xxxxxx
A The driver drove the jeep.

14
Q Now, after that, what did you do? Lopez, et al. G.R. No. 71876-76, January 25, 1988 citing People vs. Gavarra, No. L-37673,
October 30, 1987; People vs. Masangkay, G.R. No. 73461, October 27, 1987). With no
A I ran after the jeep and then I was able to take the jeep at the side of it. attending mitigating or aggravating circumstance, said penalty is imposable in its medium
period or from eighteen (18) years, eight (8) months and one (1) day to twenty (20) years.
Q How about Trinidad, where was he at that time?
The penalty next lower in degree for purposes of the Indeterminate Sentence Law is prision
A He also ran, sir. mayor, maximum, to reclusion temporal, medium, or from ten (10) years and one (1) day to
seventeen (17) years and four (4) months (Article 61, parag. 3, Revised Penal Code).
Q Now, when Trinidad ran after you what happened?
WHEREFORE, the guilt of the accused Emeliano Trinidad for the crimes of Murder (on two
A Trinidad was able to catchup with the jeep and fired his gun. counts) and Attempted Murder, having been proven beyond reasonable doubt, his conviction
is hereby AFFIRMED and he is hereby sentenced as follows:
Q Were you hit?
1) In each of Criminal Cases Nos. 79123-24 (Nos. 96 and 99 below) for Murder, he shall suffer
A At that time I did not know that I was hit because it was sudden. the indeterminate penalty of ten (10) years and one (1) day of prision mayor, as minimum, to
eighteen (18) years, eight (8) months and one (1) day of reclusion temporal, as maximum; to
Q When for the first time did you notice that you were hit?
indemnify the heirs of Marcial Laroa and Lolito Soriano, respectively, in the amount of
A At the second jeep. P30,000.00 each; and to pay the costs.

Q You mean to inform the Court that the jeep you first rode is not the very same jeep that you 2) In Criminal Case No. 79125 (No. 100 below) for Frustrated Murder, he is hereby found guilty
took for the second time? only of Attempted Murder and sentenced to an indeterminate penalty of six (6) months and
one (1) day of prision correccional, as minimum, to six (6) years and one (1) day of prision
A No, sir. mayor, as maximum; to indemnify Ricardo Tan in the sum of P5,000,00; and to pay the costs.

Q Now, when you have notice that you were hit, what did you do? SO ORDERED.

A At the first jeep that I took I was hit, so I got out from it and stood-up at the middle of the Paras, Padilla, Sarmiento and Regalado, JJ., concur.
road so that I can catch up the other jeep.' (TSN, December 6, 1985, pp. 44-49)

TAN's testimony remained unshaken even during cross- examination. No ill motive has been
attributed to him to prevaricate the truth. He was in the vehicle where the killing transpired
was a witness to the actual happening, and was a victim himself who managed narrowly to
escape death despite the weaponry with which TRINIDAD was equipped.

The defense is correct, however, in contending that in the Frustrated Murder case, TRINIDAD
can only be convicted of Attempted Murder. TRINIDAD had commenced the commission of the
felony directly by overt acts but was unable to perform all the acts of execution which would
have produced it by reason of causes other than his spontaneous desistance, such as, that the
jeep to which TAN was clinging was in motion, and there was a spare tire which shielded the
other parts of his body. Moreover, the wound on his thigh was not fatal and the doctrinal rule
is that where the wound inflicted on the victim is not sufficient to cause his death, the crime is
only Attempted Murder, the accused not having performed all the acts of execution that would
have brought about death (People vs. Phones, L-32754-5, July 21, 1978, 84 SCRA 167; People
vs. Garcia, L-40106, March 13, 1980, 96 SCRA 497).

But while the circumstances do spell out the two crimes of Murder, the penalty will have to be
modified. For, with the abolition of capital punishment in the 1987 Constitution, the penalty for
Murder is now reclusion temporal in its maximum period to reclusion perpetua (People vs.

15
 We review in this petition for review on certiorari1 the decision2 dated July 20, 2006
of the Court of Appeals (CA) in CA-G.R. CR No. 29090, entitled People of the Philippines v.
Giovani Serrano y Cervantes. The CA modified the decision dated October 25, 20043 of the
Regional Trial Court4 (RTC), Branch 83, Quezon City, and found petitioner Giovani Serrano y
Cervantes (petitioner) guilty beyond reasonable doubt of attempted homicide, instead of
frustrated homicide.

The Facts

The case stemmed from a brawl involving 15 to 18 members of two (2) rival groups
that occurred at the University of the Philippines, Diliman, Quezon City (UP) on the evening of
March 8, 1999. The incident resulted in the stabbing of Anthony Galang (victim). Pinpointed as
the victims assailant, the petitioner was charged on March 11, 1999,5 with frustrated homicide
in an Information that reads:

That on or about the 8th day of March 1999, in Quezon City, Philippines, the said accused, with
G.R. No. 175023 July 5, 2010 intent to kill, did then and there willfully, unlawfully and feloniously attack, assault and employ
personal violence upon the person of one ANTHONY GALANG Y LAGUNSAD, by then and there
GIOVANI SERRANO y CERVANTES, stabbing him on the stomach with a bladed weapon, thus performing all the acts of execution
which should have produced the crime of homicide, as a consequence but which nevertheless
Petitioner, v. PEOPLE OF THE PHILIPPINES, Respondent. did not produce it, by reason of some causes independent of the will of the accused; that is
the timely and able medical assistance rendered to said ANTHONY GALANG Y LAGUNSAD which
DECISION prevented his death, to the damage and prejudice of the said offended party.

BRION, J.:

16
CONTRARY TO LAW.6

On March 20, 2000, the petitioner pleaded not guilty. During the pre-trial, the prosecution and
the defense agreed to dispense with the testimonies of SPO2 Isagani dela Paz and the records
custodian of East Avenue Medical Center on the basis of the following stipulations: (1) SPO2
dela Paz was the one who conducted the investigation; (2) SPO2 dela Paz took the statement
of the victim at the East Avenue Medical Center; (3) the victim was able to narrate the story
of the incident to SPO2 dela Paz before he underwent surgery; (4) SPO2 dela Paz prepared a
referral-letter to the city prosecutor; (5) SPO2 dela Paz had no personal knowledge of the
incident; and (6) the victim was confined for treatment at the East Avenue Medical Center from
March 8, 1999, and the documents referring to his confinement and treatment were duly
executed and authenticated.7 After these stipulations, trial on the merits immediately followed.
The petitioner watched Gener fight Comia. When Gener lost the fight, the petitioner sought to
get back at the victim and his friends. Thus, the one-on-one escalated into a rumble between
the members of the two groups. During the rumble, and with the aid of the light emanating
from two Meralco posts, the victim and Arceo saw that the petitioner had a knife and used it
to chase away the members of their group. The petitioner also chased Arceo away, leaving the
victim alone; the petitioners group ganged up on him.
The petitioner went to where the victim was being beaten by Gener and one Obet Orieta. It
was then that the victim was stabbed. The petitioner stabbed the left side of his stomach while
he was standing, with Gener and Orieta holding his arms. The petitioner, Gener and Orieta
thereafter continued to beat and stone the victim until he fell into a nearby creek. The petitioner
and his group left him there.

The Prosecutions Evidence From his fallen position, the victim inspected his stab wound and saw that a portion of his
intestines showed. On foot, he went to find help. The victim was initially taken to the UP
Infirmary, but was referred to the East Avenue Medical Center where he underwent surgery.
The victim stayed at the hospital for a week, and thereafter stayed home for one month to
The prosecution presented the victim, Arlo Angelo Arceo, Sgt. Rolando Zoleto, and
recuperate.
SPO2 Roderick Dalit.

In the investigation that immediately followed, the victim identified the petitioner as the person
These witnesses testified that, at around 9:30 p.m. of March 8, 1999, the victim and
who stabbed him. In court, the victim likewise positively identified the petitioner as his
his two friends, Arceo and Richard Tan, were on their way to Fatima II in Pook Dagohoy, UP
assailant.
Campus when they came across Gener Serrano, the petitioners brother, who was with his
group of friends. The victim, Arceo and Tan approached Gener and his friends to settle a
previous quarrel between Gener and Roberto Comia. While the victim and Gener were talking,
Comia suddenly appeared and hurled invectives at Gener. Irked, Gener challenged Comia to a The Defenses Evidence
fistfight to settle their quarrel once and for all; Comia rose to the challenge.

The defense presented the testimonies of the petitioner, Gener, and George Hipolito.
It was at this point that the petitioner appeared with other members of his group. He was a
guest at a party nearby, and was informed that a fight was about to take place between his
brother and Comia. Members of the victims group also started to show up.
The petitioner denied that he stabbed the victim. While he admitted that he was present during
the fistfight between Gener and Comia, he claimed that he and Gener left as soon as the rumble

17
started. The petitioner testified that as he and Gener were running away from the scene (to
get back to the party), bottles and stones were being thrown at them.
Accused Giovani Serrano is hereby ordered to reimburse to complainant Anthony Galang the
medical expenses incurred by the latter in his hospitalization and treatment of his injuries in
the amount of FIFTEEN THOUSAND PESOS (P15,000.00) and loss of income for one (1) month
Hipolito, a participant in the rumble and a member of the petitioners group, narrated that the in the amount of FOUR THOUSAND PESOS (P4,000.00) or the total amount of NINETEEN
rumble happened fast and he was too busy defending himself to take note of everything that THOUSAND PESOS (P19,000.00).
happened. He testified that he did not see the petitioner and Gener during the fight. He also
testified that the place where the rumble took place was near a steel manufacturing shop which
provided some light to the area. He further testified that the victim was left alone at the scene
and he alone faced the rival group. Costs against the accused.

The RTC Ruling SO ORDERED.9

After considering the evidence, the trial court found the petitioner guilty beyond
reasonable doubt of frustrated homicide. It held, thus:
The petitioner appealed to the CA. He claimed that the inconsistencies in the victims testimony
rendered it incredible, but the RTC disregarded the claim. The RTC also disregarded the
evidence that the dimness of the light in the crime scene made it impossible for the victim to
The bare statement of Giovani Serrano that he did not stab Anthony and he really identify his assailant.
does not know who might have stabbed Anthony is outweighed by the positive identification
by Anthony that Giovani stabbed him frontally while they faced each other and also the
circumstantial evidence pointing to him as the wielder of the knife. Naturally, Giovani Serrano
The CA Ruling
would feign ignorance as to who stabbed Anthony but there is no way that he can avoid said
direct and circumstantial evidences.8

In its decision, the CA agreed with the RTC that the petitioner had been positively identified as
the victims assailant. The CA, however, ruled that the crime committed was attempted
Accordingly, the RTC decision disposed:
homicide, not frustrated homicide. The CA ruled that the prosecution evidence failed to
conclusively show that the victims single stab wound was sufficient to cause death without
timely medical intervention. In support of its conclusion, the CA said that:
WHEREFORE, the prosecution having established the guilt of accused GIOVANI SERRANO Y
CERVANTES of the offense of FRUSTRATED HOMICIDE beyond reasonable doubt, this Court
finds him GUILTY thereof and hereby sentences him to undergo imprisonment of FOUR (4)
Thus, in Paddayuman v. People (G.R. No. 120344, 23 January 2002), appellants
YEARS, TWO (2) MONTHS and ONE (1) DAY of prision correccional as minimum to TEN (10)
conviction for attempted homicide was upheld because there was no evidence that the
YEARS of prision mayor as maximum.
wounds suffered by the victim were fatal enough as to cause her demise. Thus:

18
x x x petitioner stabbed the victim twice on the chest, which is indicative of an intent to kill. x 3) The award of loss earnings is DELETED,
x x This can be gleaned from the testimony of Dr. Pintucan who did not categorically state
whether or not the wounds were fatal. x x x (I)n People v. Pilones, this Court held that even if
the victim was wounded but the injury was not fatal and could not cause his death, the crime
The appealed decision is AFFIRMED in all other respects.
would only be attempted.

SO ORDERED.11
Similarly, in the case of People v. Costales (G.R. No. 141154, 15 January 2002),
where the offense charged was frustrated murder, the trial court rendered a verdict of guilty
for attempted murder because the prosecution failed to present a medical certificate or
competent testimonial evidence which will prove that the victim would have died from her Undaunted, the petitioner filed this present petition.
wound without medical intervention. Citing People v. De La Cruz, the Supreme Court
sustained the trial court and stressed that:

The Issues

x x x the crime committed for the shooting of the victim was attempted murder and not
frustrated murder for the reason that his injuries, though no doubt serious, were not
The petitioner raises the following issues for the Courts consideration:
proved fatal such that without timely medical intervention, they would have caused his
death.10

A
Thus, the CA modified the RTC decision. The dispositive portion of the CA decision reads:

THE COURT OF APPEALS ERRED IN GIVING FULL FAITH AND CREDENCE TO THE
INCREDIBLE AND INCONSISTENT TESTIMONY OF THE PRIVATE COMPLAINANT.
WHEREFORE, with the MODIFICATIONS that:

B
1) Appellant is found GUILTY beyond reasonable doubt of the crime of ATTEMPTED
HOMICIDE and sentenced to suffer the indeterminate penalty of imprisonment of SIX (6)
MONTHS of arresto mayor as minimum to FOUR (4) YEARS and TWO (2) MONTHS of
prision correccional, as maximum; THE COURT OF APPEALS ERRED IN GIVING CREDENCE TO THE TESTIMONIES OF
THE WITNESSES FOR THE PROSECUTION, WHICH WERE BASED ON MERE
SPECULATION AND CONJECTURE.
2) The actual damages is REDUCED to P3,858.50; and

19
C a question of fact that we cannot entertain in a Rule 45 review, save for exceptional reasons13
THE COURT OF APPEALS GRAVELY ERRED IN OVERLOOKING THE FACT THAT THE
STABBING INCIDENT OCCURRED IN THE MIDDLE OF A STREET BRAWL, WHERE
ANYBODY OF THE NUMEROUS PARTICIPANTS COULD HAVE BEEN THE ASSAILANT.
D
THE COURT OF APPEALS GRAVELY ERRED IN HOLDING THAT THE GUILT OF THE
ACCUSED-APPELLANT WAS PROVEN BEYOND REASONABLE DOUBT.12
The petitioner claims that the lower courts decisions were erroneous based on two-
pronged arguments first, he cannot be convicted because he was not positively identified by a
credible testimony; and second, if he is criminally culpable, he can only be convicted of serious
physical injuries as the intent to kill the victim was not sufficiently proven.
The Court Ruling
We do not find merit in the petitioners arguments, and accordingly hold
that the petition is devoid of merit.
At the outset, we clarify that we shall no longer deal with the correctness of the RTC
and the CAs appreciation of the victims identification of the petitioner as his assailant. This is
that must be clearly and convincingly shown. As a rule, we accord the greatest respect for the
findings of the lower courts, especially the evaluation by the trial judge who had the distinct
opportunity to directly hear and observe the witnesses and their testimonies. As we explained
in People v. Lucena14
[It] has been consistently held by this Court that the matter of assigning values to declarations
on the witness stand is best and most competently performed by the trial judge, who had the
unmatched opportunity to observe the witnesses and to assess their credibility by the various
indicia available but not reflected in the record. The demeanor of the person on the stand can
draw the line between fact and fancy. The forthright answer or the hesitant pause, the
quivering voice or the angry tone, the flustered look or the sincere gaze, the modest blush or
the guilty blanch these can reveal if the witness is telling the truth or lying through his teeth.15
In this regard, the petitioner cites an exception the lower courts misappreciation of the
testimonial evidence. Due consideration of the records, however, does not support the
petitioners position. We find that the RTC and the CA did not err in their appreciation of the
evidence.
The petitioner was positively identified
The RTCs and CAs conclusions on the petitioners positive identification are supported
by ample evidence. We consider in this regard the following pieces of evidence of the
prosecution: (1) the manner of attack which was done frontally and at close range, thus
allowing the victim to see his assailant; (2) the lighting conditions at the scene of the stabbing,
provided by two Meralco posts;16 the scene was also illuminated by white, fluorescent type
20
light coming from a steel manufacturing shop;17 and (3) that the victim and the petitioner
knew each other also allowed the victim to readily identify the petitioner as his assailant.
The victims credibility is further strengthened by his lack of improper motive to falsely
accuse the petitioner of the crime. Human experience tells us that it is unnatural for a victim
to accuse someone other than his actual attacker; in the normal course of things, the victim
would have the earnest desire to bring the guilty person to justice, and no other. We consider,
too, that the victim consistently and positively, in and out of court, identified the petitioner as
his assailant. The victim testified that the petitioner was a neighbor who lived just a few houses
away from his house.
We also take into account the evidence that the petitioner was the only one seen in
possession of a knife during the rumble. The victim testified that he saw the petitioner holding
a knife which he used to chase away others.18 Prosecution witness Arceo testified that he also
saw the petitioner wielding a knife during the rumble.
Based on these considerations, we find the victims identification of the petitioner as his
assailant to be positive and conclusive.
In contrast, we find the inconsistencies attributed to the victim to be minor and
insufficient to discredit his testimony. These inconsistencies refer to extraneous matters that
happened during the rumble, not directly bearing on the stabbing. They do not likewise relate
to the material elements of the crime.
We also cannot give any credit to the petitioners position that the victims failure to identify the
weapon used to stab him discredited his testimony. The victims failure to identify the weapon
is irrelevant under the circumstances, considering that the identity of the weapon is not an
element of the crime charged.
The intent to kill was sufficiently established
The petitioner posits that he can only be held liable for serious physical injuries since
the intent to kill, the necessary element to characterize the crime as homicide, was not
sufficiently proven. The assailants intent to kill is the main element that distinguishes the crime
of physical injuries from the crime of homicide. The crime can only be homicide if the intent to
kill is proven.
Intent to kill is a state of mind that the courts can discern only through external manifestations,
i.e., acts and conduct of the accused at the time of the assault and immediately thereafter. In
Rivera v. People,19 we considered the following factors to determine the presence of an intent
to kill: (1) the means used by the malefactors; (2) the nature, location, and number of wounds
sustained by the victim; (3) the conduct of the malefactors before, at the time, or immediately
after the killing of the victim; and (4) the circumstances under which the crime was committed
and the motives of the accused. We also consider motive and the words uttered by the
offender at the time he inflicted injuries on the victim as additional determinative factors.20
In this case, the records show that the petitioner used a knife in his assault. The
petitioner stabbed the victim in the abdomen while the latter was held by Gener and Orieta.
Immediately after the stabbing, the petitioner, Gener and Orieta beat and stoned the victim
until he fell into a creek. It was only then that the petitioner, Gener and Orieta left. We consider
in this regard that the stabbing occurred at around 9:30 p.m. with only the petitioner, Gener,
Orieta, and the victim as the only persons left in the area. The CA aptly observed that a
reasonable inference can be made that the victim was left for dead when he fell into the creek.
21
Under these circumstances, we are convinced that the petitioner, in stabbing, beating and
stoning the victim, intended to kill him. Thus, the crime committed cannot be merely serious
physical injuries.
Frustrated homicide versus attempted homicide
Since the victim did not die, the issue posed to us is the stage of execution of the
crime. The lower courts differed in their legal conclusions.
On one hand, the RTC held that the crime committed reached the frustrated stage since the
victim was stabbed on the left side of his stomach and beaten until he fell into a creek.21 The
RTC also took into account that the victim had to be referred by the UP Infirmary to the East
Avenue Medical Center for medical treatment.22
On the other hand, the CA ruled that the crime committed only reached the attempted stage
as there was lack of evidence that the stab wound inflicted was fatal to cause the victims
death.23 The CA observed that the attending physician did not testify in court.24 The CA also
considered that the Medical Certificate and the Discharge Summary issued by the East Avenue
Medical Center fell short of specifying the nature or gravity of the wound.25
Article 6 of the Revised Penal Code, as amended defines the stages of a felony in the following
manner:
ART. 6. Consummated, frustrated, and attempted felonies. Consummated felonies, as well
as those which are frustrated and attempted, are punishable.
A felony is consummated when all the elements necessary for its execution and
accomplishment are present; and it is frustrated when the offender performs all the acts of
execution which would produce the felony as a consequence but which, nevertheless, do not
produce it by reason of causes independent of the will of the perpetrator.
There is an attempt when the offender commences the commission of a felony directly by
overt acts, and does not perform all the acts of execution which should produce the felony by
reason of some cause or accident other than his own spontaneous desistance. [Emphasis and
italics supplied.]
In Palaganas v. People,26 we made the following distinctions between frustrated and
attempted felony as follows:
1.) In frustrated felony, the offender has performed all the acts of execution which should
produce the felony as a consequence; whereas in attempted felony, the offender merely
commences the commission of a felony directly by overt acts and does not perform all the acts
of execution.
22

2.) In frustrated felony, the reason for the non-accomplishment of the crime is some cause
independent of the will of the perpetrator; on the other hand, in attempted felony, the reason
for the non-fulfillment of the crime is a cause or accident other than the offenders own
spontaneous desistance.27
The crucial point to consider is the nature of the wound inflicted which must be
supported by independent proof showing that the wound inflicted was sufficient to
cause the victims death without timely medical intervention.
In discussing the importance of ascertaining the degree of injury sustained by a victim and its
importance in determining criminal liability, the Court in People v. Matyaong, said:28
In considering the extent of injury done, account must be taken of the injury to the
function of the various organs, and also the danger to life. A division into mortal and nonmortal
wounds, if it could be made, would be very desirable; but the unexpected complications and
the various extraneous causes which give gravity to the simplest cases, and, on the other hand,
the favorable termination of some injuries apparently the most dangerous, render any such
classification impracticable. The general classification into slight, severe, dangerous, and mortal
wounds may be used, but the possibility of the slight wound terminating with the loss of the
persons life, and the apparently mortal ending with only a slight impairment of some function,
must always be kept in mind. x x x
The danger to life of any wound is dependent upon a number of factors: the extent
of the injury, the form of the wound, the region of the body affected, the blood vessels, nerves,
or organs involved, the entrance of disease-producing bacteria or other organisms into the
wound, the age and constitution of the person injured, and the opportunities for administering
proper surgical treatment.
When nothing in the evidence shows that the wound would be fatal without medical
intervention, the character of the wound enters the realm of doubt; under this situation, the
doubt created by the lack of evidence should be resolved in favor of the petitioner. Thus, the
crime committed should be attempted, not frustrated, homicide.29
Under these standards, we agree with the CAs conclusion. From all accounts, although the stab
wound could have been fatal since the victim testified that he saw his intestines showed, no
exact evidence exists to prove the gravity of the wound; hence, we cannot consider the stab
wound as sufficient to cause death. As correctly observed by the CA, the victims attending
physician did not testify on the gravity of the wound inflicted on the victim. We consider, too,
the CAs observation that the medical certifications issued by the East Avenue Medical Center
merely stated the location of the wound.30 There was also no proof that without timely medical
intervention, the victim would have died.31 This paucity of proof must necessarily favor the
petitioner.
The view from the frustrated stage of the crime gives the same results. The elements
of frustrated homicide are: (1) the accused intended to kill his victim, as manifested by his use
of a deadly weapon in his assault; (2) the victim sustained fatal or mortal wound/s but
did not die because of timely medical assistance; and (3) none of the qualifying
circumstance for murder under Article 248 of the Revised Penal Code, as amended, is
23
present.32 Since the prosecution failed to prove the second element, we cannot hold the
petitioner liable for frustrated homicide.
The Penalty
Article 51 of the Revised Penal Code, as amended, provides that the imposable penalty for an
attempted crime shall be lower by two degrees than that prescribed by law for the
consummated felony.
Under Article 249, the crime of homicide is punished by reclusion temporal. Applying Article 61
(Rules of graduating penalties) and Article 71 (Graduated scales), two (2) degrees lower of
reclusion temporal is prision correccional which has a duration of six (6) months and one (1)
day to six (6) years.
Under the Indeterminate Sentence Law, the maximum term of the indeterminate sentence
shall be taken, in view of the attending circumstances that could be properly imposed under
the rules of the Revised Penal Code, and the minimum term shall be within the range of the
penalty next lower to that prescribed by the Revised Penal Code.33 Thus, the maximum term
of the indeterminate sentence shall be taken within the range of prision correccional, depending
on the modifying circumstances. In turn, the minimum term of the indeterminate penalty to be
imposed shall be taken from the penalty one degree lower of prision correccional, that is arresto
mayor with a duration of one (1) month and one (1) day to six (6) months.
In the absence of any modifying circumstance, the maximum term of the indeterminate penalty
shall be taken from the medium period of prision correccional or two (2) years and four (4)
months and one (1) day to four (4) years and two (2) months.34 The minimum term shall be
taken within the range of arresto mayor. Hence, the penalty imposed by the CA against the
petitioner of six (6) months of arresto mayor, as minimum term of the indeterminate penalty,
to four (4) years and two (2) months of prision correccional, as maximum term of the
indeterminate penalty, is correct.
The Civil Liability
We modify the CA decision with respect to the petitioners civil liability. The CA ordered actual
damages to be paid in the amount of P3,858.50. This is erroneous and contrary to the prevailing
jurisprudence.
In People v. Andres,35 we held that if the actual damages, proven by receipts during the trial,
amount to less than P25,000.00, the victim shall be entitled to temperate damages in the
amount of P25,000.00, in lieu of actual damages. The award of temperate damages is based
on Article 2224 of the New Civil Code which states that temperate or moderate damages may
be recovered when the court finds that some pecuniary loss was suffered but its amount cannot
be proven with certainty. In this case, the victim is entitled to the award of P25,000.00 as
temperate damages considering that the amount of actual damages is only P3,858.50. The
amount of actual damages shall be deleted.
Lastly, we find that the victim is also entitled to moral damages in the amount of P10,000.00
in accordance with settled jurisprudence.36 Under Article 2219, paragraph 1 of the New Civil
Code, the victim is entitled to moral damages in a criminal offense resulting in physical injuries.
WHEREFORE, we hereby DENY the petition. The decision, dated July 20, 2006, of the Court
of Appeals in CA-G.R. CR No. 29090, finding petitioner Giovani Serrano y Cervantes guilty
24
beyond reasonable doubt of Attempted Homicide, is AFFIRMED with MODIFICATION. The
petitioner is ORDERED to PAY the victim, Anthony Galang, the following amounts:

(1) P25,000.00 as temperate damages; and

(2) P10,000.00 as moral damages.

Costs against the petitioner.

SO ORDERED.

25
 and severally the heirs of each of the victims, namely, Jose Carriego, Eugenio Barbosa and
Santos Cruz, in the sum of P6,000, and each to pay his corresponding share of the costs.

The information recites:

That on or about the 16th day of February, 1958, in the municipality of

Muntinglupa, province of Rizal, Philippines, and within the jurisdiction of
this Honorable Court, the abovenamed accused, who are convicts confined
in the New Bilibid Prisons by virtue of final judgments, conspiring,
confederating and mutually helping and aiding one another, with evident
premeditation and treachery, all armed with deadly weapons, did, then
and there, willfully, unlawfully and feloniously kill Jose Carriego, Eugenio
Barbosa and Santos Cruz, also convicts confined in the same institution,
by hitting, stabbing and striking them with ice picks, clubs and other
improvised weapons, pointed and/or sharpened, thereby inflicting upon
the victims multiple serious injuries which directly caused their deaths.

That the aggravating circumstance of quasi-recidivism is present in the

commission of the crime in that the crime was committed after the accused
have been convicted by final judgments and while they are serving the
said judgments in the New Bilibid Prisons.

Contrary to law with the following aggravating circumstances:

1. That the crime was committed with insult to public authorities;

G.R. No. L-19069 October 29, 1968 2. That the crime was committed by a band;

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, 3. That the crime was committed by armed men or persons who insure or
vs. afford impunity;
AMADEO PERALTA, ET AL., defendants,
ANDRES FACTORA, LEONARDO DOSAL, ANGEL PARUMOG, AMADEO 4. That use of superior strength or means was employed to weaken the
PERALTA, FLORENCIO LUNA and GERVASIO LARITA, defendants-review. defense;

Assistant Solicitors General Vicente A. Torres and Antonio Ibarra for 5. That as a means to the commission of the crime doors and windows
plaintiff-appellee. have been broken;
J. R. Nuguid for defendants-review.
6. That means was employed which add ignominy to the natural effects of
PER CURIAM: the act;

7. That the crime was committed where public authorities were engaged
In the decision in criminal case 7705 of the Court of First Instance of Rizal,subject of the
in the discharge of their duties.
present automatic review, Amadeo Peralta, Andres Factora, Leonardo Dosal, Angel Parumog,
Gervasio Larita and Florencio Luna (six among the twenty-two defendants1 charged therein
with multiple murder) were pronounced guilty, and all sentenced to death, to indemnify jointly
26
Upon motion of the provincial fiscal before trial, the lower court dismissed the charge against
one of the accused2 for lack of evidence. After the prosecution had rested its case, the charges
against six of the accused3 were dismissed for failure of the prosecution to establish a prima
facie case against them. One of the defendants died4 during the pendency of the case. After
trial, the court a quo acquitted eight5 of the remaining defendants.
As early as in 1956, a great number of inmates confined in the national penitentiary at
Muntinglupa arrayed themselves into two warring gangs, the "Sigue-Sigue" and the "OXO", the
former composed predominantly of Tagalog inmates, the latter comprised mainly of prisoners
from the Visayas and Mindanao. Since then the prison compound has been rocked time and
time again by bloody riots resulting in the death of many of their members and suspected
sympathizers. In an effort to avert violent clashes between the contending groups, prison
officials segrerated known members of the "Sigue-Sigue" from those of the "OXO". Building 1
housed "Sigue-Sigue" members, while a majority of the prisoners confined in Bldg. 4 belonged
to the "OXO". Even in Bldg. 4, which is composed of four brigades, namely, 4-A and 4-B (upper
floor) and 4-C and 4-D (first floor), inmates from Visayas and Mindanao, from whom the "OXO"
drew most of its members, were confined in 4-A.
It was at about 7:00 a.m. on February 16, 1958, while the inmates of the penitentiary were
preparing to attend Sunday mass, that a fight between two rival members of the "Sigue-Sigue"
and "OXO" gangs occurred in the plaza where the prisoners were assembled, causing a big
commotion. The fight was, however, quelled, and those involved were led away for
investigation, while the rest of the prisoners were ordered to return to their respective quarters.
Hardly had conditions returned to normal when a riot broke out in Bldg. 1, a known lair of the
"Sigue-Sigue". The inmates thereof tried to invade Bldg. 4, where many members and
sympathizers of the "OXO" gang were confined. The timely arrival of the guards forced the
invading inmates to retreat and return to Bldg. 1. Moments later, another riot erupted in Bldg.
4, as the inmates of brigade 4-A destroyed the lock of their door and then rampaged from one
brigade to another. The invading prisoners from 4-A, mostly "OXO" members and sympathizers,
clubbed and stabbed to death Jose Carriego, an inmate of 4-B. Afterwards, they forcibly opened
the door of 4-C and killed two more inmates, namely, Eugenio Barbosa and Santos Cruz.
The three victims sustained injuries which swiftly resulted in their death — before they could
be brought to the hospital.
Jose Carriego: (a) lacerated wound on the lower lip, 5 cm. in length and 3 cm.in depth; (b)
contusion and hematoma of the back of the neck, about 2 inches in diameter; and (c) five
punctured wounds in the chest, penetrating the lungs. Cause of death: internal hemorrhage
from multiple fatal wounds in the chest.
Eugenio Barbosa: (a) lacerated wound in the occipital region, 3 inches in length and 1 cm. in
depth; (b) two penetrating wounds in the abdomen, puncturing the intestines; (c) lacerated
wounds on the right oxilla, 3 cm. in length and 2 cm. in depth; and (d) several bruises at the
right and left lower extremities. Cause of death: shock, secondary to internal hermorrhage in
the abdomen.
Santos Cruz: (a) lacerated wound on the head, 2 inches in length; (b) fractured skull; (c)
wound on the upper lip cutting the lip in two; (d) seven punctured wounds in the chest, two
of which were penetrating; (e) hematoma on the right hand; and (f) three punctured wounds
on the left hand. Cause of death: fractured skull.
Romeo Pineda, an inmate and first quarter-in-charge of brigade 4-B, testified that while he was
taking his breakfast with Jose Carriego, who was at the time the representative of the prisoners
confined in 4-B to the inmate carcel, he "suddenly heard commotion" near the door of their
brigade; that his fellow prisoners started shouting "pinapasok na tayo," as the invading inmates
from brigade 4-A stampeded into 4-B; that he and Carriego took hold of their clubs and stood
at the end of the passageway; that he saw Carriego surrender his club to Andres Factora, an
"OXO" member from 4-A; that as Carriego started to walk away, Factora clubbed Carriego on
the nape causing the latter to fall; that Factora turned up the face of his fallen victim and struck
him again in the face; that while Carriego was in this prostrate position, Amadeo Peralta and
Leonardo Dosal, companions of Factora, repeatedly stabbed him.
The testimony of Pineda was corroborated in all its material points by Juanito Marayoc and
Avelino Sauza, both inmates of 4-B. These two prosecution witnesses identified Factora, Peralta
and Dosal as the assailants of Carriego.
From 4-B, the invading inmates of 4-A went down and forcibly entered 4-C. According to Oscar
Fontillas, an inmate of 4-C, he saw the prisoners from 4-A rushing toward their brigade; that
among the invading inmates who forced open the door of 4-C, with help from the inside
provided by Visayan prisoners confined in 4-C, were Factora, Dosal, Angel Parumog, Gervacio
Larita, Ernesto Fernandez and Jose Tariman; that he saw Factora, Larita and Fernandez kill
Barbosa, while the rest of their companies instructed the Visayans to leave their cell and
ordered the "Manila boys" (Tagalogs) to remain. Antonio Pabarlan, another inmate of 4-C,
declared that he saw Peralta stab Barbosa, as Dosal, Larita, Florencio Luna, Parumog and
Factora clubbed the hapless victim. Another inmate of 4-C, Jose Halili, not only corroborated
the testimony of Fontillas and Pabarlan but as well added grim details. He declared that while
Barbosa was trying to hide under a cot, he was beaten and stabbed to death by Dosal,
Parumog, Factora and Fernandez, with Luna, Larita, Pedro Cogol and Eilel Tugaya standing
guard, armed with clubs and sharp instruments, in readiness to repel any intervention from
the Tagalog inmates. Carlos Espino, also confined in 4-C, declared that he saw Parumog,
Peralta Factora and Larita assault and kill Barbosa.
The same witnesses for the prosecution testifies that after killing Barbosa, the invading "OXO"
members and sympathizers proceeded to hunt for Santos Cruz, another Tagalog like Carriego
and Barbosa. Halili testified, that he saw Peralta, Larita, Cogol and Tugaya take Santos Cruz to
4-A from 4-C; that Santos Cruz knelt down and pleaded for his life, saying, "Maawa kayo sa
akin. Marami akong anak;" that Luna and Peralta were unmoved as they stabbed Santos Cruz
to death. Pabarlan declared that after the death of Barbosa, Santos Cruz was brought to 4-A
by the invading inmates but Cruz was able to slip back to his cell only to be recaptured by
Factora, Dosal and Luna and brought to near the fire escape where he was clubbed and stabbed
to death by Parumog, Dosal, Factora and Peralta. Fontillas and Espino corroborated the
declarations of Halili and Pabarlan with respect to the killing of Santos Cruz, and both
mentioned Larita as one of the assailants of Cruz.
27
The trial judge summarized the evidence for the prosecution, thus:
"... it clearly appears that the three killings in question were an offshoot
of the rivalry between the two organizations. All those who were killed,
namely, Barbosa, Carriego and Santos Cruz, were Tagalogs and well
known as members if not sympathizers of the Sigue Sigue, while the
accused so charged with their killing were mostly members if not
sympathizers of the Oxo organization. These three killings were sparked
by the commotion that happened in the plaza between 8:00 and 9:00 in
the morning, while the prisoners were preparing to go the mass ... It was
evident that the clash that occurred in the plaza produced a chain reaction
among the members and followers of the two organizations. The inmates
of Building No. 1, known lair of the Sigue Sigues bolted the door of their
cells and tried to invade Building No. 4 where a big number of the Oxo
members and their sympathizers were confined, but, however, were
forced to retreat by the timely arrival of the guards who sent them back
to their building. When the members of the Oxo in Building No. 4 learned
about this, they went on a rampage looking for members of the Sigue
Sigue or their sympathizers who were confined with them in the same
building. As the evidence of the prosecution shows, the accused who were
confined in Brigade 4-A of Building No. 4 led the attack. They destroyed
the lock of their dormitories and with the help of their companions
succeeded in bolting the door of the different brigades, and once they
succeeded in bolting the doors of the different brigades, they went inside
and tried to segregate the Tagalogs from their group; that as soon as they
discovered their enemies they clubbed and stabbed them to death ...
Admitting that he was one among several who killed Jose Carriego, Peralta nevertheless claims
self-defense. He testified that on the morning of the riot he was attacked by Carriego and Juan
Estrella near the door of 4-A while he was returning to his brigade from the chapel with some
companions; that Carriego clubbed him on the head; that he was able to parry the second
blow of Carriego and then succeeded in squeezing Carriego's head with his hands; that
forthwith he whipped out an improvised ice pick and stabbed Carriego several times; that when
he (Peralta) was already dizzy due to the head wound he sustained from the clubbing, Carriego
managed to slip away; that he then became unconscious, and when he regained consciousness
he found himself on a tarima with his head bandaged.
Peralta's declarations do not inspire belief. The impressive array of prosecution witnesses who
saw him actively participate in the killing of the three victims pointed to him as the aggressor,
not the aggrieved. Pineda, Marayoc and Sauza positively identified him as one of the assailants
of Carriego. Contrary to the pretensions of Peralta, Carriego an alleged "Sigue-Sigue" member,
would not have attacked him, knowing fully well that Building No. 4 was an "OXO" lair where
the "Sigue-Sigue" members were outnumbered. Anent the killing of Barbosa and Santos Cruz,
Peralta failed to offer any explicit defense to rebut the inculpatory declarations of prosecution
witnesses Pabarlan and Espino who saw him participate in the killing of Barbosa and those of
Halili, Fontillas and Espino who identified him as one of the murderers of Santos Cruz.
For his part, Leonardo Dosal stated that he killed Santos Cruz, but also claims self-defense in
exculpation. He declared that Santos Cruz, Jose Carriego, Juanita Espino, Carlos Espino and
Oscar Fontillas invaded 4-A where he was confined; that a free-for-all forthwith ensued; that
he then heard Santos Cruz call Carlos Espino, and advise the latter to go away as "I will be the
one to kill that person (Dosal);" that with a sharp instrument, Cruz hit him on the head and
then on the nose; that as Cruz was about to hit him again, he got hold of his ice pick and
stabbed Cruz repeatedly until the latter fell.
Dosal's avowal is clearly belied by the positive testimonies of Pabarlan, Halili and Espino who
saw him participate in the killing of Santos Cruz. If it is true that Dosal killed Santos Cruz in
self-defense when the latter together with his companions supposedly invaded Dosal's brigade
(4-A), why is it that the body of Santos Cruz was found at the fire escape near the pasillo
between 4-C and 4-D of the first floor of Bldg. 1 instead of in 4-A which is located in the upper
floor? Moreover, Dosal failed to explain why he was seen in 4-C, which he does not deny, since
he was an inmate of 4-A where he was allegedly attacked. With respect to the murder of
Carriego and Barbosa with which Dosal was also charged, he did not offer any evidence in his
behalf. Hence, the testimonies of Pineda, Marayoc and Sauza identifying him as one of the
killers of Carriego and those of Pabarlan, Halili and Espino implicating him in the death of
Santos Cruz, stand unrebutted.
Andres Factora declared that he clubbed Carriego and Santos Cruz under compulsion of his co-
accused who threatened to kill him if he disobeyed their order; that he did not hit Barbosa
anymore because the latter was already dead; that it was his co-accused who actually killed
the three victims. Again, the declarations of the prosecution witnesses, which were accorded
full credence by the trial court, expose the guilt of Factora beyond reasonable doubt. In fact,
according to Pineda, whose testimony was corroborated by Marayoc, it was Factora who started
the mass assault by clubbing Carriego treacherously. Fontillas, Halili, Pabarlan and Espino
pointed to Factora as one of the killers of Barbosa, while at least three prosecution witnesses,
namely, Pabarlan, Fontillas and Espino, saw Factora participate in the slaying of Santos Cruz.
The active participation of Factora in the killing, which is clear index of voluntariness, thus
negates his claim of compulsion and fear allegedly engendered by his co-accused.
Angel Parumog, Gervasio Larita and Florencio Luna take refuge in the exculpatory device of
alibi. Parumog testified that he did not participate in the killing of the three inmates because
he stayed during that entire hapless day in the office of the trustees for investigation after the
fight in the plaza; that he was implicated in the killing by the prosecution witnesses because
of his refusal to accede to their request to testify against his co-accused; that he is not a
Visayan but a Tagalog from Nueva Ecija. Larita claims that he did not know about the killing
until he was informed that three inmates had died; that on the day in question he was brought
to the police trustee brigade for investigation after the incident in the plaza; that he was
escorted back to his brigade only in the afternoon. Luna likewise disclaims any knowledge of
the killing and asserts that for the entire duration of the riot he remained in his cell (brigade
4-A).
The alibis of Parumog, Larita and Luna merit no credence when set against the positive
testimonies of prosecution witness identifying them as participants in the killing of Barbosa and
Santos Cruz. Pabarlan, Espino and Fontillas declared that Larita was one of the killers of
28
Barbosa; Espino and Fontillas declared that they saw Larita kill Santos Cruz; Pabarlan, Halili
and Espino testified that they saw Parumog participate in the murder of Barbosa; Espino,
Fontillas and Pabarlan stated that Parumog took part in the killing of Santos Cruz. Pabarlan
and Halili declared that Luna participated in the fatal assault on Barbosa and Santos Cruz.
The alibis of the accused are thus sufficiently overcome by strong evidence to the contrary.
The defense of alibi is generally weak since it is easy to concoct. For this reason, courts view
it with no small amount of caution, and accept it only when proved by positive, clear and
satisfactory evidence.6 In the case at bar, if Parumog and Larita were really confined in the
police trustee brigade for investigation on the day of the incident, there should have been a
record of the alleged investigation. But none was presented. The testimony of Luna that
throughout the riot he stayed in his cell is quite unnatural. He claims that he did not even help
his cellmates barricade their brigade with tarimas in order to delay if not prevent the entry of
the invading inmates. According to him, he "just waited in one corner."
The rule is settled that the defense of alibi is worthless in the face of positive identification by
prosecution witnesses pointing to the accused as particeps criminis.7 Moreover, the defense of
alibi is an issue of fact the resolution of which depends almost entirely on the credibility of
witnesses who seek to establish it. In this respect the relative weight which the trial judge
accords to the testimony of the witnesses must, unless patently inconsistent without evidence
on record, be accepted.8 In the case at bar, the trial court, in dismissing the alibis of Parumog,
Larita and Luna, said that "their mere denial cannot prevail over the positive testimony of the
witnesses who saw them participate directly in the execution of the conspiracyto kill Barbosa,
Carriego and Santos Cruz."
The killing of Carriego constitutes the offense of murder because of the presence of treachery
as a qualifying circumstance: Carriego was clubbed by Factora from behind, and as he lay
prostrate and defenseless, Peralta and Dosal stabbed him repeatedly on the chest. The blow
on the nape and the penetrating chest wounds were all fatal, according to Dr. Bartolome
Miraflor. Abuse of superior strength qualified the killing of Barbosa and Santos Cruz to the
category of murder. The victims, who were attacked individually were completely overwhelmed
by their assailants' superiority in number and weapons and had absolutely no chance at all to
repel or elude the attack. All the attackers were armed with clubs or sharp instruments while
the victims were unarmed, as so found by the trial court. In fact, Halili testified that Barbosa
was clubbed and stabbed to death while he was trying to hide under a cot, and Santos Cruz
was killed while he was on his knees pleading for his life.
The essential issue that next confronts us is whether conspiracy attended the commission of
the murders. The resolution of this issue is of marked importance because upon it depends the
quantity and quality of the penalties that must be imposed upon each of the appellants.
For this purpose, it is not amiss to briefly restate the doctrine on conspiracy, with particular
emphasis on the facets relating to its nature, the quantum of proof required, the scope and
extent of the criminal liability of the conspirators, and the penalties imposable by mandate of
applicable law.
Doctrine. A conspiracy exists when two or more persons come to an agreement concerning the
commission of a felony and decide to commit it.9 Generally, conspiracy is not a crime except
when the law specifically provides a penalty therefor as in treason,10 rebellion11 and
sedition.12 The crime of conspiracy known to the common law is not an indictable offense in
the Philippines.13 An agreement to commit a crime is a reprehensible act from the view-point
of morality, but as long as the conspirators do not perform overt acts in furtherance of their
malevolent design, the sovereignty of the State is not outraged and the tranquility of the public
remains undisturbed. However, when in resolute execution of a common scheme, a felony is
committed by two or more malefactors, the existence of a conspiracy assumes pivotal
importance in the determination of the liability of the perpetrators. In stressing the significance
of conspiracy in criminal law, this Court in U.S. vs. Infante and Barreto14 opined that
While it is true that the penalties cannot be imposed for the mere act of
conspiring to commit a crime unless the statute specifically prescribes a
penalty therefor, nevertheless the existence of a conspiracy to commit a
crime is in many cases a fact of vital importance, when considered
together with the other evidence of record, in establishing the existence,
of the consummated crime and its commission by the conspirators.
Once an express or implied conspiracy is proved, all of the conspirators are liable as co-
principals regardless of the extent and character of their respective active participation in the
commission of the crime or crimes perpetrated in furtherance of the conspiracy because in
contemplation of law the act of one is the act of all.15 The foregoing rule is anchored on the
sound principle that "when two or more persons unite to accomplish a criminal object, whether
through the physical volition of one, or all, proceeding severally or collectively, each individual
whose evil will actively contributes to the wrong-doing is in law responsible for the whole, the
same as though performed by himself alone."16 Although it is axiomatic that no one is liable
for acts other than his own, "when two or more persons agree or conspire to commit a crime,
each is responsible for all the acts of the others, done in furtherance of the agreement or
conspiracy."17 The imposition of collective liability upon the conspirators is clearly explained in
one case18 where this Court held that
... it is impossible to graduate the separate liability of each (conspirator)
without taking into consideration the close and inseparable relation of each
of them with the criminal act, for the commission of which they all acted
by common agreement ... The crime must therefore in view of the
solidarity of the act and intent which existed between the ... accused, be
regarded as the act of the band or party created by them, and they are all
equally responsible ...
Verily, the moment it is established that the malefactors conspired and confederated in the
commission of the felony proved, collective liability of the accused conspirators attaches by
reason of the conspiracy, and the court shall not speculate nor even investigate as to the actual
degree of participation of each of the perpetrators present at the scene of the crime. Of course,
as to any conspirator who was remote from the situs of aggression, he could be drawn within
the enveloping ambit of the conspiracy if it be proved that through his moral ascendancy over
the rest of the conspirators the latter were moved or impelled to carry out the conspiracy.
29
In fine, the convergence of the wills of the conspirators in the scheming and execution of the
crime amply justifies the imputation to all of them the act of any one of them. It is in this light
that conspiracy is generally viewed not as a separate indictable offense, but a rule for
collectivizing criminal liability.
The ensnaring nature of conspiracy is projected in bold relief in the cases of malversation and
rape committed in furtherance of a common design.
The crime of malversation is generally committed by an accountable public officer who
misappropriates public funds or public property under his trust.19 However, in the classic case
of People vs. Ponte20 this Court unequivocally held that a janitor and five municipal policemen,
all of whom were not accountable public officers, who conspired and aided a municipal
treasurer in the malversation of public funds under the latter's custody, were principally liable
with the said municipal treasurer for the crime of malversation. By reason of conspiracy, the
felonious act of the accountable public officer was imputable to his co-conspirators, although
the latter were not similarly situated with the former in relation to the object of the crime
committed. Furthermore, in the words of Groizard, "the private party does not act
independently from the public officer; rather, he knows that the funds of which he wishes to
get possession are in the latter's charge, and instead of trying to abstract them by
circumventing the other's vigilance he resorts to corruption, and in the officer's unfaithfulness
seeks and finds the most reprehensible means of accomplishing a deed which by having a
public officer as its moral instrument assumes the character of a social crime."21 In an earlier
case22 a non-accountable officer of the Philippine Constabulary who conspired with his
superior, a military supply officer, in the malversation of public funds was adjudged guilty as
co-principal in the crime of malversation, although it was not alleged, and in fact it clearly
appeared, that the funds misappropriated were not in his custody but were under the trust of
his superior, an accountable public officer.
In rape, a conspirator is guilty not only of the sexual assault he personally commits but also of
the separate and distinct crimes of rape perpetrated by his co-conspirators. He may have had
carnal knowledge of the offended woman only once but his liability includes that pertaining to
all the rapes committed in furtherance of the conspiracy. Thus, in People vs. Villa,23 this Court
held that
... from the acts performed by the defendants front the time they arrived
at Consolacion's house to the consummation of the offense of rape on her
person by each and everyone of them, it clearly appears that they
conspired together to rape their victim, and therefore each one is
responsible not only for the rape committed personally by him, but also
that committed by the others, because each sexual intercourse had,
through force, by each one of the defendants with the offended was
consummated separately and independently from that had by the others,
for which each and every one is also responsible because of the
conspiracy.
The rule enunciated in People vs. Villa was reiterated in People vs. Quitain24 where the
appellant Teofilo Anchita was convicted of forcible abduction with double rape for having
conspired and cooperated in the sexual assault of the aggrieved woman, although he himself
did not actually rape the victim. This Court observed:
We have no doubt all in all that Teofilo Anchita took part in the sexual
assault ... the accused inserted his fingers in the woman's organ, and
widened it. Whether he acted out of lewdness or to help his brother-in-
law consummate the act, is immaterial; it was both maybe. Yet, surely, by
his conduct, this prisoner conspired and cooperated, and is guilty.
With respect to robbery in band, the law presumes the attendance of conspiracy so much so
that "any member of a band who is present at the commission of a robbery by the band, shall
be punished as principal of any of the assaults committed by the band, unless it be shown that
he attempted to prevent the same."25 In this instance, conspiracy need not be proved, as long
as the existence of a band is clearly established. Nevertheless, the liability of a member of the
band for the assaults committed by his group is likewise anchored on the rule that the act of
one is the act of all.
Proof of conspiracy. While conspiracy to commit a crime must be established by positive
evidence,26 direct proof is not essential to show conspiracy.27 Since by it nature, conspiracy
is planned in utmost secrecy, it can seldom be proved by direct evidence.28 Consequently,
competent and convincing circumstantial evidence will suffice to establish conspiracy.
According to People vs. Cabrera,29 conspiracies are generally proved by a number of indefinite
acts, conditions, and circumstances which vary according to the purposes to be accomplished.
If it be proved that the defendants pursued by their acts the same object, one performing one
part and another another part of the same, so as to complete it, with a view to the attainment
of the same object, one will be justified in the conclusion that they were engaged in a
conspiracy to effect the object." Or as elucidated in People vs. Carbonel30 the presence of the
concurrence of minds which is involved in conspiracy may be inferred from "proofs of facts and
circumstances which, taken together, apparently indicate that they are merely parts of some
complete whole. If it is proved that two or more persons aimed by their acts towards the
accomplishment of the same unlawful object, each doing a part so that their acts, though
apparently independent, were in fact connected and cooperative, indicating a closeness of
personal association and a concurrence of sentiment, a conspiracy may be inferred though no
actual meeting among to concert means is proved ..." In two recent cases,31 this Court ruled
that where the acts of the accused, collectively and individually, clearly demonstrate the
existence of a common design toward the accomplishment of the same unlawful purpose,
conspiracy is evident.
Conspiracy presupposes the existence of a preconceived plan or agreement; however, to
establish conspiracy, "it is not essential that there be proof as to previous agreement to commit
a crime, it being sufficient that the malefactors committed shall have acted in concert pursuant
to the same objective."32 Hence, conspiracy is proved if there is convincing evidence to sustain
a finding that the malefactors committed an offense in furtherance of a common objective
pursued in concert.
Liability of conspirators. A time-honored rule in the corpus of our jurisprudence is that once
conspiracy is proved, all of the conspirators who acted in furtherance of the common design
30
are liable as co-principals.33 This rule of collective criminal liability emanates from the
ensnaring nature of conspiracy. The concerted action of the conspirators in consummating their
common purpose is a patent display of their evil partnership, and for the consequences of such
criminal enterprise they must be held solidarity liable.
However, in order to hold an accused guilty as co-principal by reason of conspiracy, it must be
established that he performed an overt act in furtherance of the conspiracy, either by actively
participating in the actual commission of the crime, or by lending moral assistance to his co-
conspirators by being present at the scene of the crime, or by exerting moral ascendancy over
the rest of the conspirators as to move them to executing the conspiracy. The difference
between an accused who is a principal under any of the three categories enumerated in Art.
17 of the Revised Penal Code and a co-conspirator who is also a principal is that while the
former's criminal liability is limited to his own acts, as a general rule, the latter's responsibility
includes the acts of his fellow conspirators.
In People vs. Izon, et al.,34 this Court acquitted appellant Francisco Robles, Jr., who was
convicted by the trial court of robbery with homicide as a conspirator, on the ground that
although he may have been present when the conspiracy to rob was proposed and made,
"Robles uttered not a word either of approval or disapproval. There are authorities to the effect
that mere presence at the discussion of a conspiracy, even approval of it, without any active
participation in the same, is not enough for purposes of conviction." In a more recent
case,35this Court, in exonerating one of the appellants, said:
There is ample and positive evidence on record that appellant Jose Guico
was absent not only from the second meeting but likewise from the
robbery itself. To be sure, not even the decision under appeal determined
otherwise. Consequently, even if Guico's participation in the first meeting
sufficiently involved him with the conspiracy (as he was the one who
explained the location of the house to be robbed in relation to the
surrounding streets and the points thereof through which entrance and
exit should be effected), such participation and involvement, however,
would be inadequate to render him criminally liable as a conspirator.
Conspiracy alone, without the execution of its purpose, is not a crime
punishable by law, except in special instances (Article 8, Revised Penal
Code) which, however, do not include robbery.
Imposition of multiple penalties where conspirators commit more than one offense. Since in
conspiracy, the act of one is the act of all, then, perforce, each of the conspirators is liable for
all of the crimes committed in furtherance of the conspiracy. Consequently, if the conspirators
commit three separate and distinct crimes of murder in effecting their common design and
purpose, each of them is guilty of three murders and shall suffer the corresponding penalty for
each offense. Thus in People vs. Masin,36 this Court held:
... it being alleged in the information that three crimes were committed
not simultaneously indeed but successively, inasmuch as there was, at
least, solution of continuity between each other, the accused (seven in all)
should be held responsible for said crimes. This court holds that the crimes
are murder ... In view of all these circumstances and of the frequently
reiterated doctrine that once conspiracy is proven each and every one of
the conspirators must answer for the acts of the others, provided said acts
are the result of the common plan or purpose ... it would seem evident
that the penalty that should be imposed upon each of the appellants for
each of their crimes should be the same, and this is the death penalty ...
(emphasis supplied).
In the aforesaid case, however, the projected imposition of three death penalties upon each
of the conspirators for the three murders committed was not carried out due to the lack of the
then requisite unanimity in the imposition of the capital penalty.
In another case,37 this Court, after finding that conspiracy attended the commission of eleven
murders, said through Mr. Justice Tuason:
Some members of this Court opine that the proper penalty is death, under
the circumstances of the case, but they fall short of the required number
for the imposition of this punishment. The sentence consequently is
reclusion perpetua; but each appellant is guilty of as many crimes of
murder as there were deaths (eleven) and should be sentenced to life
imprisonment for each crime, although this may be a useless formality for
in no case can imprisonment exceed forty years. (Emphasis supplied.)
In People vs. Masani,38 the decision of the trial court imposing only one life imprisonment for
each of the accused was modified by this Court on appeal on the ground that "inasmuch as
their (the conspirators') combined attack resulted in the killing of three persons, they should
be sentenced to suffer said penalty (reclusion perpetua) for each of the three victims (crimes)."
(Emphasis supplied.)
It is significant to note that in the abovementioned cases, this Court consistently stressed that
once conspiracy is ascertained, the culpability of the conspirators is not only solidary (all co-
principals) but also multiple in relation to the number of felonies committed in furtherance of
the conspiracy. It can also be said that had there been a unanimous Court in the Masin and
Macaso cases, multiple death penalties would have been imposed upon all the conspirators.
Legality and practicality of imposing multiple death penalties upon conspirators. An accused
who was charged with three distinct crimes of murder in a single information was sentenced
to two death penalties for two murders,39 and another accused to thirteen (13) separate death
penalties for the 13 killings he perpetrated.40 Therefore there appears to be no legal reason
why conspirators may not be sentenced to multiple death penalties corresponding to the nature
and number of crimes they commit in furtherance of a conspiracy. Since it is the settled rule
that once conspiracy is established, the act of one conspirator is attributable to all, then each
conspirator must be held liable for each of the felonious acts committed as a result of the
conspiracy, regardless of the nature and severity of the appropriate penalties prescribed by
law.
31
The rule on the imposition of multiple penalties where the accused is found guilty of two or
more separate and distinct crimes charged in one information, the accused not having
interposed any objection to the multiplicity of the charges, was enunciated in the leading case
of U.S. vs. Balaba,41 thus: Upon conviction of two or more offenses charged in the complaint
or information, the prescribed penalties for each and all of such offenses may be imposed, to
be executed in conformity with the provisions of article 87 of the Penal Code [now article 70
of the Revised Penal Code]. In other words, all the penalties corresponding to the several
violations of law should be imposed. Conviction for multiple felonies demands the imposition
of multiple penalties.
The two conceptual exceptions to the foregoing rule, are the complex crime under article 48
of the Revised Penal Code and the special complex crime (like robbery with homicide). Anent
an ordinary complex crime falling under article 48, regardless of the multiplicity of offenses
committed, there is only one imposable penalty — the penalty for the most serious offense
applied in its maximum period. Similarly, in special complex crimes, there is but a single penalty
prescribed by law notwithstanding the number of separate felonies committed. For instance,
in the special complex crime of robbery with hommicide the imposible penalty is reclusion
perpetua to death42 irrespective of the number of homicides perpetrated by reason or on
occasion of the robbery.
In Balaba, the information charged the accused with triple murder. The accused went to trial
without objection to the said information which charged him with more than one offense. The
trial court found the accused guilty of two murders and one homicide but it imposed only one
death penalty. In its review en consulta, this Court modified the judgment by imposing separate
penalties for each of the three offenses committed. The Court, thru Mr. Justice Carson (with
Mr. Justice Malcolm dissenting with respect to the imposition of two death penalties), held:
The trial judge was erroneously of the opinion that the prescribed penalties
for the offenses of which the accused was convicted should be imposed in
accord with the provisions of article 89 of the Penal Code. That article is
only applicable to cases wherein a single act constitutes two or more
crimes, or when one offense is a necessary means for committing the
other. (U.S. vs. Ferrer, 1 Phil. Rep., 56)
It becomes our duty, therefore, to determine what penalty or penalties
should have been imposed upon the accused upon conviction of the
accused of three separate felonies charged in the information.
There can be no reasonable doubt as to the guilt of the convict of two
separate crimes of asesinato (murder) marked with the generic
aggravating circumstances mentioned in the decision of the trial judge ...
It follows that the death penalty must and should be imposed for each of
these offenses ...
Unless the accused should be acquitted hereafter on appeal of one or both
the asesinatos with which he is charged in the information, it would seem
to be a useless formality to impose separate penalties for each of the
offenses of which he was convicted, in view of the nature of the principal
penalty; but having in mind the possibility that the Chief Executive may
deem it proper to grant a pardon for one or more of the offenses without
taking action on the others; and having in mind also the express provisions
of the above cited article 87 of the Penal Code, we deem it proper to
modify the judgment entered in the court below by substituting for the
penalty imposed by the trial judge under the provisions of article 89 of the
Code, the death penalty prescribed by law for each of the two separate
asesinatos of which he stands convicted, and the penalty of 14 years, 8
months and 1 day of reclusion temporal (for the separate crime of
homicide) ... these separate penalties to be executed in accord with the
provisions of article 87 of the Penal Code. (Emphasis supplied.)
The doctrine in Balaba was reiterated in U.S. vs. Jamad43 where a unanimous Court, speaking
again thru Mr. Justice Carson (with Mr. Justice Malcolm concurring in the result in view of the
Balaba ruling), opined:
For all the offenses of which the accused were convicted in the court
below, the trial judge imposed the death penalty, that is to say the penalty
prescribed for the most serious crime committed, in its maximum degree,
and for this purpose made use of the provisions of article 89 of the Penal
Code [now article 48 of the Revised Penal Code]. But as indicated in the
case of the United States vs. Balaba, recently decided wherein the
controlling facts were substantially similar to those in the case at bar, "all
of the penalties corresponding to the several violations of law" should have
been imposed under the express provisions of article 87 [now engrafted
in article 70 of the Revised Penal Code] and under the ruling in that case,
the trial court erred in applying the provision of article 89 of the code.
We conclude that the judgment entered in the court below should be
reversed, ... and that the following separate penalties should be imposed
upon him [the accused Jamad], to be executed in accordance with article
87 of the Penal Code: (1) The penalty of death for the parricide of his wife
Aring; (2) the penalty of life imprisonment for the murder of Labonete; (3)
the penalty of life imprisonment for the murder of Torres; (4) the penalty
of 12 years and one day of cadena temporal for the frustrated murder of
Taclind ...
The doctrine in Balaba was reechoed in People vs. Guzman,44 which applied the pertinent
provisions of the Revised Penal Code, where this Court, after finding the accused liable as co-
principals because they acted in conspiracy, proceeded to stress that where an "information
charges the defendants with the commission of several crimes of murder and frustrated
murder, as they failed to object to the multiplicity of the charges made in the information, they
can be found guilty thereof and sentenced accordingly for as many crimes the information
charges them, provided that they are duly established and proved by the evidence on record."
(Emphasis supplied.)
32
The legal and statutory justification advanced by the majority in Balaba for imposing all the
penalties (two deaths and one life imprisonment) corresponding to the offense charged and
proved was article 87 of the old Penal Code which provided:
When a person is found guilty of two or more felonies or misdemeanors,
all the penalties corresponding to the several violations of law shall be
imposed, the same to be simultaneously served, if possible, according to
the nature and effects of such penalties.
in relation to article 88 of the old Code which read:
When all or any of the penalties corresponding to the several violations of
the law can not be simultaneously executed, the following rules shall be
observed with regard thereto:
1. In the imposition of the penalties, the order of their respective severity
shall be followed so that they may be executed successively or as nearly
as may be possible, should a pardon have been granted as to the penalty
or penalties first imposed, or should they have been served out.
The essence and language, with some alterations in form and in the words used by reason of
style, of the above-cited provisions have been preserved in article 70 of the Revised Penal Code
which is the product of the merger of articles 87 and 88 of the old Penal Code. Article 70
provides:
When the culprit has to serve two or more penalties, he shall serve them
simultaneously if the nature of the penalties will so permit; otherwise, the
following rules shall be observed:
In the imposition of the penalties, the order of their respective severity
shall be followed so that they may be executed successively or as nearly
as may be possible, should a pardon have been granted as to the penalty
or penalties first imposed, or should they have been served out.
Although article 70 does not specifically command, as the former article 87 clearly did, that "all
the penalties corresponding to the several violations of law shall be imposed," it is
unmistakable, however, that article 70 presupposes that courts have the power to impose
multiple penalties, which multiple penal sanctions should be served either simultaneously or
successively. This presumption of the existence of judicial power to impose all the penalties
corresponding to the number and nature of the offenses charged and proved is manifest in the
opening sentence of article 70: "When the culprit has to serve two or more penalties, he shall
serve them simultaneously if the nature of the penalties will so permit ..." (Emphasis supplied.)
Obviously, the two or more penalties which the culprit has to serve are those legally imposed
by the proper court. Another reference to the said judicial prerogative is found in the second
paragraph of article 70 which provides that "in the imposition of the penalties, the order of
their respective severity shall be followed ..." Even without the authority provided by article
70, courts can still impose as many penalties as there are separate and distinct offenses
committed, since for every individual crime committed, a corresponding penalty is prescribed
by law. Each single crime is an outrage against the State for which the latter, thru the courts
ofjustice, has the power to impose the appropriate penal sanctions.
With respect to the imposition of multiple death penalties, there is no statutory prohibition or
jurisprudential injunction against it. On the contrary, article 70 of the Revised Penal Code
presumes that courts have the power to mete out multiple penalties without distinction as to
the nature and severity of the penalties. Moreover, our jurisprudence supports the imposition
of multiple death penalties as initially advocated in Balaba and thunderously reechoed in
Salazar where the accused was sentenced on appeal to thirteen (13) death penalties.
Significantly, the Court in Balaba imposed upon the single accused mixed multiple penalties of
two deaths and one life imprisonment.
The imposition of multiple death penalties is decried by some as a useless formality, an exercise
in futility. It is contended, undeniably enough, that a death convict like all mortals, has only
one life to forfeit. And because of this physiological and biological attribute of man, it is
reasoned that the imposition of multiple death penalties is impractical and futile because after
the service of one capital penalty, the execution of the rest of the death penalties will naturally
be rendered impossible. The foregoing opposition to the multiple imposition of death penalties
suffers from four basic flaws: (1) it fails to consider the legality of imposing multiple capital
penalties; (2) it fails to distinguish between imposition of penalty and service of sentence; (3)
it ignores the fact that multiple death sentences could be served simultaneously; and (4) it
overlooks the practical merits of imposing multiple death penalties.
The imposition of a penalty and the service of sentence are two distinct, though related,
concepts. The imposition of the proper penalty or penalties is determined by the nature, gravity
and number of offenses charged and, proved, whereas service of sentence is determined by
the severity and character of the penalty or penalties imposed. In the imposition of the proper
penalty or penalties, the court does not concern itself with the possibility or practicality of the
service of the sentence, since actual service is a contingency subject to varied factors like
successful escape of the convict, grant of executive clemency or natural death of the prisoner.
All that go into the imposition of the proper penalty or penalties, to reiterate, are the nature,
gravity and number of the offenses charged and proved and the corresponding penalties
prescribed by law.
Multiple death penalties are not impossible to serve because they will have to be executed
simultaneously. A cursory reading of article 70 will show that there are only two modes of
serving two or more (multiple) penalties: simultaneously or successively. The first rule is that
two or more penalties shall be served simultaneously if the nature of the penalties will so
permit. In the case of multiple capital penalties, the nature of said penal sanctions does not
only permit but actually necessitates simultaneous service.
The imposition of multiple death penalties, far from being a useless formality, has practical
importance. The sentencing of an accused to several capital penalties is an indelible badge of
his extreme criminal perversity, which may not be accurately projected by the imposition of
33
only one death sentence irrespective of the number of capital felonies for which he is liable.
Showing thus the reprehensible character of the convict in its real dimensions, the possibility
of a grant of executive clemency is justifiably reduced in no small measure. Hence, the
imposition of multiple death penalties could effectively serve as a deterrent to an improvident
grant of pardon or commutation. Faced with the utter delinquency of such a convict, the proper
penitentiary authorities would exercise judicious restraint in recommending clemency or
leniency in his behalf.
Granting, however, that the Chief Executive, in the exercise of his constitutional power to
pardon (one of the presidential prerogatives which is almost absolute) deems it proper to
commute the multiple death penalties to multiple life imprisonments, then the practical effect
is that the convict has to serve the maximum of forty (40) years of multiple life sentences. If
only one death penalty is imposed, and then is commuted to life imprisonment, the convict will
have to serve a maximum of only thirty years corresponding to a single life sentence.
Reverting now to the case at bar, it is our considered view that the trial court correctly ruled
that conspiracy attended the commission of the murders. We quote with approval the following
incisive observations of the court a quo in this respect:
Although, there is no direct evidence of conspiracy, the Court can safely
say that there are several circumstances to show that the crime committed
by the accused was planned. The following circumstances show beyond
any doubt the acts of conspiracy: First, all those who were killed, Barbosa,
Santos Cruz and Carriego, were Tagalogs. Although there were many
Tagalogs like them confined in Building 4, these three were singled out
and killed thereby showing that their killing has been planned. Second, the
accused were all armed with improvised weapons showing that they really
prepared for the occasion. Third, the accused accomplished the killing with
team work precision going from one brigade to another and attacking the
same men whom they have previously marked for liquidation and lastly,
almost the same people took part in the killing of Carriego, Barbosa and
Santos Cruz.
It is also important to note that all the accused were inmates of brigade 4-A; that all were from
either the Visayas or Mindanao except Peralta who is from Masbate and Parumog who hails
from Nueva Ecija; that all were either "OXO" members or sympathizers; and that all the victims
were members of the "Sigue-Sigue" gang.
The evidence on record proves beyond peradventure that the accused acted in concert from
the moment they bolted their common brigade, up until the time they killed their last victim,
Santos Cruz. While it is true that Parumog, Larita and Luna did not participate in the actual
killing of Carriego, nonetheless, as co-conspirators they are equally guilty and collectively liable
for in conspiracy the act of one is the act of all. It is not indispensable that a co-conspirator
should take a direct part in every act and should know the part which the others have to
perform. Conspiracy is the common design to commit a felony; it is not participation in all the
details of the execution of the crime. All those who in one way or another help and cooperate
in the consummation of a felony previously planned are co-principals.45 Hence, all of the six
accused are guilty of the slaughter of Carriego, Barbosa and Santos Cruz — each is guilty of
three separate and distinct crimes of murder.
We cannot agree, however, with the trial court that evident premeditation was also present.
The facts on record and the established jurisprudence on the matter do not support the
conclusion of the court a quo that evident premeditation "is always present and inherent in
every conspiracy." Evident premeditation is not inherent in conspiracy as the absence of the
former does not necessarily negate the existence of the latter.46 Unlike in evident
premeditation where a sufficient period of time must elapse to afford full opportunity for
meditation and reflection for the perpetrator to deliberate on the consequences of his intended
deed, conspiracy arises at the very instant the plotters agree, expressly or impliedly, to commit
the felony and forthwith decide to commit it.47 This view finds added support in People vs.
Custodia,48 wherein this Court stated:
Under normal conditions, where the act of conspiracy is directly
established, with proof of the attendant deliberation and selection of the
method, time and means of executing the crime, the existence of evident
premeditation can be taken for granted. In the case before us, however,
no such evidence exists; the conspiracy is merely inferred from the acts of
the accused in the perpetration of the crime. There is no proof how and
when the plan to kill Melanio Balancio was hatched, or what time elapsed
before it was carried out; we are, therefore, unable to determine if the
appellants enjoyed "sufficient time between its inception and its fulfillment
dispassionately to consider and accept the consequences." (cf. People vs.
Bangug, 52 Phil. 91.) In other words, there is no showing of the
opportunity of reflection and the persistence in the criminal intent that
characterize the aggravating circumstance of evident premeditation
(People vs. Mendoza, 91 Phil. 58; People vs. Iturriaga, 47 Off. Gaz., [Supp
to No. 12] 166; People vs. Lesada 70 Phil., 525.)
Not a single extenuating circumstance could be appreciated in favor of any of the six accused,
as they did neither allege nor prove any.
In view of the attendance of the special aggravating circumstance of quasi-recidivism, as all of
the six accused at the time of the commission of the offenses were serving sentences49 in the
New Bilibid Prison at Muntinlupa by virtue of convictions by final judgments the penalty for
each offense must be imposed in its maximum period, which is the mandate of the first
paragraph of article 160 of the Revised Penal Code. Viada observes, in apposition, that the
severe penalty imposed on a quasi-recidivist is justified because of his perversity and
incorrigibility.50
ACCORDINGLY, the judgment a quo is hereby modified as follows: Amadeo Peralta, Andres
Factora, Leonardo Dosal, Angel Parumog, Gervasio Larita and Florencio Luna are each
pronounced guilty of three separate and distinct crimes of murder, and are each sentenced to
three death penalties; all of them shall, jointly and severally, indemnify the heirs of each of the
three deceased victims in the sum of P12,000;51 each will pay one-sixth of the costs.
34
 In the early evening of May 25, 1983, Reynaldo Aducal, who was buying fish in the public
market, Poblacion Laoang, Northern Samar, was fatally stabbed. Right after the stabbing, the
assailant was apprehended by Pfc. Wenefredo Laguitan whose commendable act thwarted the
assailant's escape.

For the killing of Reynaldo Aducal, accused Eugenio Lagarto y Getalado, Jr. was charged in an
amended information with the crime of Murder as defined and penalized under Article 248 of
the Revised Penal Code, allegedly committed as follows:

That on or about the 25th day of May, 1983, at about 6:00 o'clock in the evening more or less,
inside the public market Bgy. Little Venice, Municipality of Laoang, Province of Northern Samar,
Philippines and within the jurisdiction of this Honorable Court, the above named accused with
deliberate intent to kill with the qualifying circumstances of treachery and evident
premeditation did then and there willfully, unlawfully and feloniously attack, assault and stab
one REYNALDO ADUCAL y LURA with the use of a Batangas fan knife or Balisong which the
above-named accused had provided himself for the purpose, thereby inflicting upon said victim
fatal wounds on his chest, which wounds caused the instantaneous death of the victim.

Accused is a recidivist, having been previously convicted by final judgment of another came
embraced IN THE SAME TITLE OF THE REVISED PENAL CODE, THAT OF MURDER IN CRIMINAL
CASE NO. 1473.

CONTRARY TO LAW.

(Record, "Amended Information", p. 35)

G.R. No. 65833 May 6, 1991 Upon arraignment, appellant entered a plea of guilty.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, The records disclose that the trial court had asked appellant whether or not he understood the
vs. consequences of his plea. Following the rulings of this Court, however, the trial court still
EUGENIO LAGARTO y GETALADO, JR., accused-appellant. directed the prosecution to present its evidence for the purpose of establishing with certainty
the guilt and the degree of culpability of the accused.

The Solicitor General for plaintiff-appellee.

Dakila F. Castro & Associates for accused-appellant. Two witnesses were presented by the prosecution: they were Zosimo Aducal, father of the
victim, and Pfc. Wenefredo Laguitan.

PARAS, J.:
This is an automatic review of the judgment * of the Regional Trial Court, 8th Judicial Region,
Branch XXII, Laoang, Northern Samar, in Criminal Case No. 1566, finding the accused EUGENIO
LAGARTO y GETALADO, JR. guilty beyond reasonable doubt of the crime of MURDER.
The pertinent facts of the case are:
1. Zasimo Aducal testified that in the evening of May 25, 1983 while he was attending to his
farm, three (3) kilometers away from the poblacion of Little Venice, Laoang, Northern Samar,
his grandson Artemio Aducal, son of Reynaldo, informed him that Reynaldo Aducal had been
stabbed dead; he was not able to see his deceased son that night because he could not see
his way during night time; it was only in the following morning when he saw his deceased son
with two stab wounds on the right and left breast. (TSN, October 18, 1983, pp. 14-20).

35
2. Pfc. Wenefredo Laguitan testified that on May 25, 1983, around 6:00 in the evening, while
he and Pat. Manuel Sevillana were passing the market place, his attention was called by a
certain Armando Baluyot to a commotion; he observed that the people were scampering for
safety and a man was escaping; when somebody shouted that the man was the assailant, he
immediately followed the man and apprehended him right then and there; at the police
headquarters the man admitted to him that he had long planned to kill the victim and that, the
plotter was Eugenio Lagarto, Jr., herein appellant. (TSN, October 18, 1983, pp. 22-28,).
The prosecution likewise presented the following evidence:
(a) Case Record of Criminal Case No. 1473 entitled "People vs. Eugenio Lagarto, Jr." showing
that appellant had been convicted by final judgment of homicide. (Exhibit "A" to "A-1 a");
(b) Death Certificate of deceased Reynaldo Aducal (Exhibit "B");
(c) Fan knife (Exhibit "D");
(d) Extra-judicial confession of appellant (Exhibit "C" to "C-4"), which discloses the following:
07. Question: Do you know Reynaldo Aducal personally?
Answer: Not so much, sir, but he was the one who stabbed my brother Pablito last 1980.
08. Question: What was the result when Reynaldo Aducal stabbed your brother Pablito?
Answer: As a result, my brother Pablito was hospitalized.
09. Question: Why did you stab to death Reynaldo Aducal?
Answer: I stabbed him to death sir, as a revenge or retaliation for his stabbing of my brother
Pablito.
10. Question: According to what you have said Reynaldo Aducal had stabbed your brother
Pablito in 1980. Do you mean to say that since 1980 up to May 25, 1983 you had been planning
to avenge your brother by killing Reynaldo?
Answer: Yes, sir.
(p. 2, Exhibit "C")
Based on the appellant's plea of guilty and the evidence adduced, the trial court rendered
judgment, the dispositive portion of which reads:
WHEREFORE, the Court accepts his plea and declares accused, Eugenio Lagarto y Getalado
guilty beyond reasonable doubt as principal of the crime of Murder defined and penalized in
Article 248 of the Revised Penal Code, as charged in the information, appreciating in his favor
the mitigating circumstance of spontaneous plea of guilty which is offset by the aggravating
circumstance of evident premeditation, the Court hereby sentences said accused to suffer the
extreme penalty of DEATH with all the accessories provided for in Art. 40 of the Revised Penal
Code.
The accused is hereby ordered to indemnify the heirs of Reynaldo Aducal in the amount of
P12,000.00 and to pay the costs.
SO ORDERED.
(Decision, p. 5; Rollo, p. 20)
The imposition of the supreme penalty of death warrants an automatic review by this Court.
However, the penalty of Death had been changed to reclusion perpetua in accordance with the
provision of Section 19(l), Article III of the 1987 Constitution.
The counsel de oficio recommends that the sentence be modified, contending that:
I. THE LOWER COURT ERRED IN APPRECIATING THE AGGRAVATING CIRCUMSTANCE OF
EVIDENT PREMEDITATION AGAINST THE ACCUSED.
II. THE LOWER COURT LIKEWISE ERRED IN APPRECIATING THE AGGRAVATING
CIRCUMSTANCE OF TREACHERY AGAINST THE ACCUSED; AND
III. CONSEQUENTLY, THE LOWER COURT ERRED IN SENTENCING THE ACCUSED TO SUFFER
THE EXTREME PENALTY OF DEATH."
(Brief for Accused-Appellant, p. 4; Rollo, p. 1 1 8)
It is a well-established rule that a plea of guilty, besides being a mitigating circumstance, is a
judicial confession of guilt—an admission of all the material facts alleged in the information,
including the aggravating circumstances. (People vs. Ariola, 100 SCRA, 523) To be considered
a true plea of guilty, it must be made by the accused freely, voluntarily and with full knowledge
of the consequences and meaning of his act. It must be made unconditionally. (People vs.
Comendador, 100 SCRA 155).
In the case at bar, the trial court exerted its utmost effort to be extra solicitous in seeing to it
that the accused understood, the meaning and importance of his plea. Thus,
Q Do you realize the import and consequences of your having entered the plea of guilty?
36
A Yes, your Honor.
xxx xxx xxx
Q Now, the Court would repeat to you that you have entered the plea of guilty to a most
grievous offense?
A Yes, your Honor.
Q For having entered a plea of guilty to the present crime of murder for the killing of Reynaldo
Aducal you are therefore submitting the case without presenting your own evidence, do you
realize that?
A Yes, your Honor.
Q And despite this advise and admonition to you by the court, do you still insist on entering a
plea of guilty to the crime as charged?
A Yes, your Honor.
Q The Court will advise you that in this kind of offense which is a crime of murder there is only
one possible penalty and the court has no other recourse but to impose it, that of death, do
you realize that?
A Yes, your Honor.
(Translated in the dialect known to the accused)
(TSN, October 11, 1983, pp. 2-4).
The trial court was not remiss in its obligation to warn the accused of the important
consequences of his plea. The possibility that death might be imposed should have warned the
accused to protect his interest: even an ordinary unlettered man fears death. And despite the
thought of losing his life, the accused pleaded guilty. We are convinced that the guilt of the
accused has been proved beyond reasonable doubt in the light of overwhelming evidence
presented by the prosecution, fully corroborated and substantiated by the plea of guilty of the
accused.
The only issue before Us is whether or not the trial court correctly appreciated the existence
of recidivism and the qualifying circumstances of evident premeditation and treachery.
Section 5, Rule 118 of the old Rules of Court provides that "Where the defendant pleads guilty
to a complaint or information, if the trial court accepts the plea and has discretion as to the
punishment for the offense, it may hear witnesses to determine what punishment shall be
imposed." (emphasis supplied). The trial court in a criminal case may sentence a defendant
who pleads guilty to the offense charged in the information, without the necessity of taking
testimony. (US vs. Talbanos, 6 Phil. 541). Yet, it is advisable for the trial court to call witnesses
for the purpose of establishing the guilt and the degree of culpability of the defendant. (People
vs. Comendador, supra) The present Revised Rules of Court, however, decrees that where the
accused pleads guilty to a capital offense, it is now mandatory for the court to require the
prosecution to prove the guilt of the accused and his precise degree of culpability, with the
accused being likewise entitled to present evidence to prove, inter alia, mitigating
circumstances (See People vs. Camay, 152 SCRA 401; Section 3, Rule 116 of Rules of Court).
In the case at bar, the trial court directed the prosecution to present evidence for the purpose
of establishing the guilt and degree of culpability of the defendant.
We find, as the trial court found, that the accused is a recidivist. A recidivist is one who, at the
time of his trial for one crime, shall have been previously convicted by final judgment of another
crime embraced in the same title of the Revised Penal Code. Herein accused had been convicted
of the crime of homicide in Criminal Case No. 1473 before the trial of the present Criminal Case
No. 1566. The former counsel de oficio of herein accused alleged that the judgment in Criminal
Case No. 1473 was rendered on September 15, 1983, hence when the accused was arraigned
on October 11, 1983 for Criminal Case No. 1566 he was not a recidivist.
The former counsel de oficio is of the opinion that "the time of trial" is to be reckoned with the
date of the arraignment. The phrase "at the time of his trial" should not be restrictively
construed as to mean the date of arraignment.
We declared in People vs. Enriquez, 90 Phil. 428, that the phrase "at the time of his trial for an
offense" is employed in its general sense, including the rendering of the judgment. In US vs.
Karelsen, 3 Phil. 23, We held that the phrase "at the trial" is meant to include everything that
is done in the course of the trial, from arraignment until after sentence is announced by the
judge in open court. In the case at bar, the accused was convicted of homicide in Criminal
Case No. 1473 on September 15, 1983. There being no appeal, the judgment therein became
final on October 11, 1983. The second conviction was rendered on October 26, 1983 for
Murder. Hence, it is crystal clear that the accused is a recidivist: the accused had been
convicted by final judgment at the time of the rendition of the judgment for the second offense.
We find no merit in the finding of the trial court that evident premeditation and treachery
existed in the commission of the crime. It is a rule that a plea of guilty cannot be held to include
evident premeditation and treachery where the evidence adduced does not adequately disclose
the existence of these qualifying circumstances (People vs. Gravino, 122 SCRA 123).
Evident premeditation requires proof of the following requisites: (a) the time when the offender
determined to commit the crime; (b) an act manifestly indicating that he had clung to his
determination; and (c) a sufficient lapse of time between the determination and the execution
of the crime to allow him to reflect upon the consequences of his act and to allow his conscience
37
to overcome the resolution of his will. (People vs. Cafe, 166 SCRA 704; People vs. Montejo,
167 SCRA 506).

The statement of the accused, that he had long planned to kill Reynaldo Aducal in retaliation
for the act of Reynaldo Aducal in stabbing his brother, does not adequately prove the existence
of evident premeditation. It is necessary to establish that the accused meditated on his
intention between the time it was conceived and the time the crime was actually perpetrated.
Defendant's proposition was nothing but an expression of his own determination to commit the
crime which is entirely different from premeditation. (People vs. Carillo 77 Phil. 572). In People
vs. Alde, 64 SCRA 224, We ruled that there is no evident premeditation where the only evidence
to support it is the statement of the accused that he planned to kill the victim in 1964 when
actual stabbing was 1969.

To show premeditation, it is required that the criminal intent be evidenced by notorious acts
evincing the determination to commit the same. (People vs. Guiyab, 139 SCRA 446). It must
be evident and not merely suspected (People vs. Iturriaga, 88 Phil. 534) or merely thought of
or contemplated mentally, without externalized acts. The finding of the trial court, that the
accused had clandestinely concealed the knife in his body away from the searching eye of the
prison guards which showed the deliberate intent of the accused, is not borne out by the
records. Perusal of the records does not show that the accused deliberately planned the killing
through external acts. The finding of facts by the trial court should not be based on mere
assumptions; there must be proof that such facts exist.

In order that treachery may be appreciated, it is necessary to prove the manner in which the
victim was attacked.1âwphi1 Treachery can in no way be presumed but must be fully proved.
Where there are merely indications that the attack was sudden and unexpected, but there are
no precise data on this point, the circumstance of treachery can not be taken into account.
(People vs. Ariola, supra)

In the case at bar, there is no evidence to show that the mode of attack was consciously
adopted as to insure the perpetration of the crime and safety from the defense that the victim
might put up. There is an absence of evidence to show the means employed by assailant and
the mode of attack. Treachery may not be simply deduced from assumptions; it must be as
clearly proved as the crime itself in order to qualify the crime into murder.

WHEREFORE, the that court's judgment is MODIFIED. Accused-appellant EUGENIO LAGARTO

y GETALADO is hereby CONVICTED of homicide; appreciating in his favor the mitigating
circumstance of spontaneous plea of guilty which is offset by the aggravating circumstance of
recidivism, the Court hereby sentences said accused to an indeterminate penalty of ten (10)
years of prision mayor as minimum, to seventeen (17) years and four (4) months of reclusion
temporal as maximum, and to pay the heirs of Reynaldo Aducal an indemnity of fifty thousand
pesos (P50,000.00). Costs de oficio.

SO ORDERED.

Melencio-Herrera, Padilla, Sarmiento and Regalado, JJ., concur.

38
 The only question raised by the appellant is the correctness of the additional penalty. The
pertinent allegation of the information is that the accused Faustino Tolentino y de Dios is a
habitual delinquent, he having been convicted of the crimes of theft and estafa by final
judgments rendered by competent court, as follows:

Date of Date of Crime Sentence Date of re

commission sentence
10-13-25 Qualified theft, 6 months and P3 indemnity 3-18-26
MCDE-16887
10-29-26 10-30-26 Theft, NCDE - 3 months and 1 day 1-20-27
42165
8-1-27 8-1-27 Qualified theft, 6 months 1 day and P15 8-10-30
NCDE-57895 indemnity
9-14-35 9-30-35 Estafa, CFID- 2 months 1 day arresto
50973 mayor, to return the bicycle
stolen or its value P40, and
additional penalty of 2 years
4 months 21 days of prision
correccional, and costs.

The trial court sentenced the appellant under paragraph 5 (b) of article 62 of the Revised Penal
Code, as if this were only his fourth and not his fifth conviction. The Solicitor General
recommends the affirmance of that sentence, on the theory that appellant's fourth previous
G.R. No. L-48740 August 5, 1942 conviction alleged in the information should bee disregarded because the date of his release in
connection therewith was not shown. On the other hand counsel for the appellant, on the basis
of the trial court's implied finding that this is appellant's fourth conviction, contends that
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, appellant should be sentenced under paragraph 5 (a) of article 62, as if the present were only
vs. his third conviction, on the ground that the first conviction should be taken circumstance and
FAUSTINO TOLENTINO Y DE DIOS and LUISA CORPUZ Y QUITONG, should be disregarded as an element of habitual, delinquency.
defendants.
FAUSTINO TOLENTINO Y DE DIOS, appellant. We cannot uphold appellant's contention. Under his theory an accused cannot be sentenced
for habitual delinquency unless he has had at least three previous convictions, because the
first conviction has to be taken only as an aggravating circumstance and has to be disregarded
Crispin Oben for appellant. for the purpose of determining habitual delinquency. That, we think, would be unwarranted
Assistant Solicitor-General Enriquez and Solicitor Kapunan, Jr. for appellee. interpretation of the Habitual Delinquency Law (paragraph 5 of article 62 of the Revised Penal
Code), which reads as follows:
OZAETA, J.:
5. Habitual delinquency shall have the following effects:
In the municipal court of Manila, where this action was commenced, as well as in the Court of
First Instance, to which it was appealed, both of the above-named defendants pleaded guilty (a) Upon a third conviction the culprit shall be sentenced to the penalty provided by law for
to the charge of theft of seven shirts valued at P14 belonging to one Cosme Famorca. Both the last crime of which he be found guilty and to the additional penalty of prision correccional
being, recidivists, were sentenced in the Court of First Instance to suffer two months and one in its medium and maximum periods:
day of arresto mayor and to pay the corresponding civil indemnity to the offended party.
Faustino Tolentino y de Dios was further sentenced to suffer an additional penalty of six years
and one day of prision mayor for habitual delinquency. He alone appealed to this Court.

39
(b) Upon a fourth conviction the culprit shall be sentenced to the penalty provided for the last Wherefore, with the modification that the appellant Faustino Tolentino y de Dios shall suffer
crime of which he be found guilty and to the additional penalty of prision mayor in its minimum an additional penalty of ten years and one day of prision mayor, the sentence appealed from
and medium period; and is affirmed, with costs. So ordered.

(c) Upon fifth or additional conviction, the culprit shall be sentenced to the penalty provided Yulo, C.J., Paras and Moran, JJ., concur.
for the last crime of which he be found guilty a guilty to the additional penalty of prision mayor
in its maximum period to the reclusion temporal in its minimum period.

Notwithstanding the provisions of this article, the total of the penalties to be imposed upon the
offender in conformity herewith, shall in no case exceed 30 years.

For the purposes of this article, a person shall be deemed to be habitual delinquent if within a
period of ten years from the date of his release or last conviction of the crimes of robo, hurto,
estafa, or falsificacion, he is found guilty of any of said crimes a third time or oftener.

A habitual delinquent is necessarily a recidivist, and in imposing the principal penalty upon him
the aggravating circumstance of recidivism has to be taken into account. In fixing the penalty
provided by law for the last crime " as required in paragraph 5 (a) (b), and (c) of article 62 of
the Revised Penal Code, the court cannot disregard articles 14 (9) and Revised Penal Code,
which respectively define recidivism as an aggravating circumstance and lay down the rule for
the application of aggravating and mitigating circumstances. We reaffirm the holding of this
Court in People vs. Melendez, 59 Phil., 154; People vs. Espina, 62 Phil., 607; and the People
vs. De Jesus, 63 Phil., 760, as a correct interpretation of the Habitual Delinquency Law.
However, for the purpose of fixing the additional penalty, recidivism cannot be taken as an
aggravating circumstance for the reason it is inherent in habitual delinquency (People vs. de
Jesus, supra).

Neither can we accept the recommendation for affirmance made by the Solicitor General on
the theory that the present is appellant's fourth conviction. We cannot disregard his previous
fourth conviction alleged in the information solely because the date of his release in connection
therewith has not been shown. It appearing that he was sentenced for the fourth time on
September 30, 1935, to suffer two months and done day of arresto mayor plus an additional
penalty of two years, four months, and twenty-one days of prision correctional, we can readily
see that he must have been released in connection therewith less than ten years previous to
August 13, 1941, the date of the commission of the offense complained of in the present case.
The stand taken by the trial court and the Solicitor General is untenable because if appellant's
fourth previous conviction be disregarded, he could not be sentenced to any additional penalty
as a habitual delinquent, his previous third conviction and release having taken place more
than ten years prior to August 13, 1941.

It results that this is appellant's fifth conviction, and accordingly, he must be sentenced under
paragraph 5 (c) of article 62 to the additional penalty of prision mayor in its maximum period
to reclusion temporal in its minimum period. This penalty must be imposed in its minimum
degree because of the mitigating circumstance of plea of guilty.

40
 That on or about March 11, 1978, in the morning thereof, at the Poblacion of the Municipality
of Aroroy, Province of Masbate, Philippines, within the jurisdiction of this Court, the said
accused with intent to kill, evident premeditation and treachery, did then and there willfully,
unlawfully, feloniously and criminally attack, assault and hack with a sharp bolo one Edgardo
Corpus y Rapsing, hitting the latter on the nape, causing an injury which caused the death of
the said Edgardo Corpus y Rapsing several days thereafter.

That the accused is a recidivist having been convicted by the Municipal Court of Aroroy, in the
following cases:

Crime Date of Conviction

1. Ill treatment by Deed — July 6, 1965

2. Grave Threats — November 25, 1968

(Rollo, p. 14).

Upon being arraigned, appellant pleaded not guilty.

After trial, the court convicted appellant and sentenced him to suffer the penalty of reclusion
perpetua and to pay the heirs of the victim the sum of P30,000.00 and costs.

G.R. No. 93436 March 24, 1995

Hence, this appeal.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

II
vs.
MELCHOR REAL y BARTOLAY, accused-appellant.
At about 9:00 A.M. on March 17, 1978, in the public market of Aroroy, Masbate, appellant and
Edgardo Corpus, both vendors, engaged in a heated argument over the right to use the market
table to display their fish.

QUIASON, J.:
This is an appeal from the decision of the Regional Trial Court, Branch 44, Masbate, Masbate,
in Criminal Case No. 1606 finding appellant guilty of murder.
We affirm with modification, the appealed decision.
Moreno de la Rosa, the Municipal Mayor, who happened to be at the public market, tried to
pacify them, saying that they were arguing over trivial matters.
The two protagonists momentarily kept their peace but after awhile Corpus raised his voice
again and said something to appellant. The latter, in a soft voice, uttered "SOBRA NA INA NA
IMO PAGDAOGDAOG" (You are being too oppressive).

I When Corpus kept on walking to and fro near the disputed fish table, appellant started to
sharpen his bolo while murmuring to himself. Once Corpus turned around with his back towards
appellant, the latter hacked him on the nape. The blow caused Corpus to collapse. He was
The information against appellant reads as follows:
rushed to a medical clinic. When asked by his wife as to who hacked him, he answered "Melchor
Real."

41
A police investigator went to the clinic to take the dying declaration of Corpus, who said that
it was appellant who stabbed him. Corpus died two days later.
Appellant admitted hacking Corpus but claimed that he did so out of humiliation and anger
when the victim threw his fish in the presence of so many people.
He testified as follows:
Q. When Edgardo Corpus was lambasting you in the presence of the public, what did you do,
how did you feel?
A. I got angry.
We agree with appellant that the offense committed was homicide. He is entitled to the benefit
of the doubt as to whether he acted with alevosia when he attacked the victim. As a rule, a
sudden attack by the assailant, whether frontally or from behind, is treachery if such mode of
attack was cooly and deliberately adopted by him with the purpose of depriving the victim of
a chance to either fight or retreat. The rule does not apply, however, where the attack was not
preconceived and deliberately adopted but was just triggered by the sudden infuriation on the
part of the accused because of the provocative act of the victim (People v. Aguiluz, 207 SCRA
187 [1992]). This is more so, where the assault upon the victim was preceded by a heated
exchange of words between him and the accused (People v. Rillorta, 180 SCRA 102 [1989]).
In the case at bench, the assault came in the course of an altercation and after appellant had
sharpened his bolo in full view of the victim. Appellant's act of sharpening his bolo can be
interpreted as an attempt to frighten the victim so the latter would leave him alone. It was
simply foolhardy for the victim to continue walking to and fro near appellant in a taunting
manner while the latter was sharpening his bolo.

Q. And what did you do? The suddenness of the attack does not, by itself, suffice to support a finding of alevosia where
the decision to attack was made peremptorily and the victim's helpless position was accidental
A. So I hacked him. (People v. Ardisa, 55 SCRA 245 [1974]).

Q. Was he hit? Appellant also claims that he is entitled to two mitigating circumstances: namely, vindication
of a grave offense and passion and obfuscation. The peculiarity of these two mitigating
circumstances is that they cannot be applied at the same time if they arise from the same facts
A. Yes, Sir. or motive.

Q. In what part of his body was he hit? If appellant attacked his victim in the proximate vindication of a grave offense, he cannot
successfully claim in the same breath that he was also blinded by passion and obfuscation. At
A. At the right neck. most, only one of two circumstances could be considered in favor of appellant (People v. Yaon,
Court of Appeals, 43 O.G. 4142 cited in I Reyes, Revised Penal Code [1981]).
Q. Did you admit to the authorities that it was you who hacked Edgardo Corpus?
The act of the victim in berating and humiliating appellant was enough to produce passion and
obfuscation, considering that the incident happened in a market place within full view and
A. Yes, sir. within hearing distance of many people.

On cross-examination, he again admitted his guilt. The trial court held, and the Solicitor General agreed, that the attendant aggravating
circumstance was reiteracion and not reincidencia as alleged in the information. The trial court
Q. And when this Edgardo Corpus turn (sic) his back, you immediately hacked him on his neck? and the Solicitor General are in error.

A. Yes, sir ( TSN, July 9, 1986, pp. 6-8; Emphasis supplied). According to the information charging appellant of murder and the evidence, the accused was
previously convicted of ill-treatment by deed on July 6, 1965 and grave threats on November
25, 1968.
III

In recidivism or reincidencia, the offender shall have been previously convicted by final
Before us, appellant argues that the crime committed was only homicide and not murder and
judgment of another crime embraced in the same title of the Revised Penal Code (Revised
that he is entitled to two mitigating circumstances: namely, passion and obfuscation and
Penal Code, Art. 14[g]). In reiteracion, the offender shall have been punished previously for
vindication of a grave offense.
an offense to which the law attaches an equal or greater penalty or for two or more crimes to
which it attaches a lighter penalty (Revised Penal Code, Art. 14[10]). Unlike in reincidencia,
42
the offender in reiteracion commits a crime different in kind from that for which he was
previously tried and convicted (Guevarra, Penal Sciences and Philippine Criminal Law 129
[1974]).

Appellant was previously convicted of ill-treatment by deed (Revised Penal Code, Art. 266, Title
Eight) and grave threats (Revised Penal Code, Art. 282, Title Nine). He was convicted of
homicide in the instant criminal case (Revised Penal Code, Art. 249, Title Eight). Inasmuch as
homicide and ill-treatment by deed fall under Title Eight, the aggravating circumstance to be
appreciated against him is recidivism under Article 14[g] rather than reiteracion under Article
14(10) of the Revised Penal Code.

There is no reiteracion because that circumstance requires that the previous offenses should
not be embraced in the same title of the Code. While grave threats fall in title (Title Nine)
different from homicide (Title Eight), still reiteracion cannot be appreciated because such
aggravating circumstance requires that if there is only one prior offense, that offense must be
punishable by an equal or greater penalty than the one for which the accused has been
convicted. Likewise, the prosecution has to prove that the offender has been punished for the
previous offense. There is no evidence presented by the prosecution to that effect.

Appellant is convicted of homicide, appreciating in his favor the mitigating circumstance of

passion and obfuscation, which is offset by the aggravating circumstance of recidivism.

WHEREFORE, the judgment of the trial court is AFFIRMED with the MODIFICATION that
appellant is convicted of the crime of homicide and sentenced to an indeterminate penalty of
TEN (10) YEARS of prision mayor as minimum to SEVENTEEN (17) YEARS and FOUR (4)
MONTHS of reclusion temporal as maximum. The indemnity to be paid to the heirs of the victim
is increased to P50,000.00.

SO ORDERED.

43
 On January 17, 1964 when these four accused stabbed Regino Gasang to death, they were
inmates of the Davao Penal Colony serving sentences of conviction for the following crimes:

Nicolas Layson — kidnapping with robbery, homicide, homicide and theft;

Cezar Ragub — frustrated murder and homicide;

Cezar Fugoso — robbery in an inhabited house and theft;

Joventino Garces — robbery hold-up and robbery in an uninhabited house.

In the early morning of that hapless day, at about 4:45 o'clock, the four accused, armed with
bladed weapons, entered the cell where the unsuspecting victim, prisoner Regino Gasang, was.
Layson locked the door of the room. Without warning and acting in concert they then swiftly
took turns in stabbing Gasang. They thereafter barricaded themselves, refusing to surrender
to the trustees who had come to the scene of the crime, agreeing to surrender only to Vicente
Afurong, the supervising prison guard. Afurong arrived, identified himself, and assured them
of their safety, whereupon they handed their weapons through the hole of the barricaded door
and surrendered themselves.

Gasang died shortly after being brought to the prison hospital. Death was caused by severe
internal and external hemorrhage and shock, all secondary to multiple stab wounds.

Layson, Ragub and Fugoso admitted that they killed Gasang because the latter urinated on
their coffee cups a number of times. Garces stated that he killed Gasang because the latter
G.R. No. L-25177 October 31, 1969 spat on him a week before. The four plotted to kill Gasang a few days prior to the actual
slaying.

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
NICOLAS LAYSON, CEZAR RAGUB, CEZAR FUGOSO and JOVENTINO
GARCES, defendants-appellants.
Office of the Solicitor General Antonio P. Barredo, Assistant Solicitor General Antonio
A. Torres and Solicitor Lolita O. Gal-lang for plaintiff-appellee.
Potenciano Villegas, Jr. as counsel de officio for defendants-appellants.
PER CURIAM:
This is an automatic review of the decision dated September 25, 1965 of the Court of First
Instance of Davao in criminal case 8495 imposing the death penalty on Nicolas Layson, Cezar
Ragub, Cezar Fugoso and Joventino Garces.
On March 25, 1964 all the accused were indicted for the crime of murder. The information
recites:
The undersigned accuses Nicolas Layson, Cezar Ragub, Cezar Fugoso and Joventino Garces of
the crime of Murder, under Art. 248, in relation to Art. 160, of the Revised Penal Code,
committed as follows:
That on or about January 17, 1964, in the Davao Penal Colony, Municipality of Panabo, Province
of Davao, Philippines, and within the jurisdiction of this Court, the above-mentioned accused,
while then being convicts serving in the said Davao Penal Colony their corresponding sentences
of conviction by reason of final judgment imposed upon them, conspiring and confederating
together and helping one another, armed with sharp-pointed instruments, with treachery,
evident premeditation and abuse of superior strength, and with intent to kill, did then and there
wilfully, unlawfully and feloniously attack, assault and stab with said weapons Regino Gasang,
their co-inmate in the said Colony, thereby inflicting upon him serious injuries which caused

44
his death; with the aggravating circumstances of (1) recidivism with respect to the accused Treachery attended the commission of the crime. The necropsy report (exh. I) and the diagram
Nicolas Layson and Cezar Ragub, and (2) all of them with two or more prior convictions. (exh. J), plus the testimony of Dr. Guillermo de Guzman, conclusively prove that the victim was
killed in a manner insuring utter suddenness and complete surprise in the execution of the
offense, with resultant incapability of the victim to offer resistance. That there was abuse of
Upon arraignment, all the four accused, assisted by counsel de officio, freely and spontaneously
superior strength would suffice to qualify the crime to murder, but this circumstance must be
pleaded guilty. Notwithstanding the plea of guilty, the court a quo proceeded to receive
considered as absorbed in treachery.2
testimony because of the gravity of the offense. On September 30, 1965 the court rendered
its decision, the dispositive portion of which reads as follows:
Treachery qualifies the killing to murder;3 evident premeditation becomes a mere generic
aggravating circumstance4 which is offset by the mitigating circumstance of plea of guilty. A
WHEREFORE, the Court finds the accused guilty beyond reasonable doubt as principals of the
qualifying circumstance not only gives the crime its proper and exclusive name but also places
crime of murder, defined and penalized under Article 248 of the Revised Penal Code, with the
the author thereof in such a situation as to deserve no other penalty than that specially
mitigating circumstance of plea of guilty in favor of all of them and the aggravating
prescribed for said crime.5
circumstances of recidivism and having been previously punished for two or more crimes to
which the law attaches a lighter penalty with respect to the accused Nicolas Layson and Cezar
Ragub, the aggravating circumstance of having been punished with two or more offenses to The special aggravating circumstance of quasi-recidivism (art. 160, Rev. Penal Code) was
which the law attaches a lighter penalty with respect to the accused Cezar Fugoso and correctly considered against all the accused, who, at the time of the commission of the offense,
Joventino Garces and the aggravating circumstances consisting of any two of the qualifying were undoubtedly serving their respective sentences for previous convictions. Quasi-recidivism
circumstances alleged in the information which are treachery, evident premeditation and abuse has for its effect the punishment of the accused with the maximum period of the penalty
of superior strength for one is sufficient to qualify the crime to murder and the special prescribed by law for the new felony, and cannot be offset by an ordinary mitigating
aggravating circumstance of having committed the crime charged while serving the penalty circumstance.6
imposed upon them for previous offenses as regards all the accused and conformably with
Article 160 of the Revised Penal Code, hereby sentences all of them to DEATH, to indemnify
When they pleaded guilty to the charge of murder, all the accused admitted all the material
jointly and severally the heirs of the deceased Regino Gasang in the amount of Six Thousand
facts and circumstances alleged in the information. The crime of murder is punished with
Pesos (P6,000.00) without subsidiary imprisonment in case of insolvency by reason of the
reclusion temporal in its maximum period to death. Because of the attendance of the special
penalty imposed and to pay the costs proportionately.
aggravating circumstance of quasi-recidivism, this Court is left with no alternative to affirming
the death penalty imposed by the court a quo.
For the purposes of this review, suffice it to consider, on the one hand, the aggravating
circumstances of evident premeditation and treachery and the special aggravating
It was error for the trial judge to consider against the accused the aggravating circumstance
circumstance of quasi-recidivism, and, on the other, the mitigating circumstance of plea of
of having been previously punished for two or more crimes to which the law attaches lighter
guilty.
penalties because the said aggravating circumstance of "reiteracion" requires that the offender
against whom it is considered shall have served out his sentences for the prior offenses. Here
We reject the recommendation of the Solicitor General that the mitigating circumstance of all the accused were yet serving their respective sentences at the time of the commission of
passion and obfuscation be considered in favor of all the accused. For this circumstance to the murder.
exist, it is necessary that the act which gave rise to the obfuscation be not removed from the
commission of the offense by a considerable length of time, during which period the perpetrator
Concurrence in the grim view that we take of this case is given by Attorney Potenciano Villegas,
might recover his normal equanimity.1
Jr., counsel de officio for the four accused, who unqualifiedly recommends affirmance of the
judgment a quo.
Three of the accused admitted that they harbored ill-feeling against Gasang because the latter
urinated on their coffee cups several times, all these taking place at least ten days before the
It is indeed a lethal hand that pens affirmance of a death sentence, but ours is the inescapable
actual slaying. Gasang spat on Garces a week before the day of the killing. All of the accused
duty to enforce the inexorable mandate of the law.
plotted to kill Gasang a few days before January 17, 1964. In the light of these circumstances,
it is evident that sufficient time had elapsed during which the accused regained their
equanimity. They moved their evil scheme forward to consummation after obtaining weapons ACCORDINGLY, the judgment a quo imposing the death penalty on Nicolas Layson, Cezar
from their fellow inmates whose aid they had solicited. The aforenarrated circumstances negate Ragub, Cezar Fugoso and Joventino Garces, is affirmed. The indemnification to the heirs of the
the presence of passion and obfuscation; upon the contrary, they prove the attendance of the victim, Regino Gasang, is hereby increased to P12,000,7 to be paid jointly and severally by the
aggravating circumstance of evident premeditation. four accused. Costs de officio.

45
 sentenced to an additional penalty of seven (7) years of prision
mayor.chanroblesvirtualawlibrary chanrobles virtual law library

The facts are not disputed by the defense. It has been established that late in the evening of
October 11, 1935, the accused, without the owner's consent, took three gamecocks belonging
to Elias Piamonte valued at P50, and three other roosters belonging to Mariano de Leon valued
at P3. Only two of the gamecocks of Elias Piamonte, valued at P30, were recovered. It has
equally been established that the accused had been thrice convicted of the crime of theft; The
first time on April 25, 1935 by the justice of the peace court of San Pablo, Laguna; the second
time on June 24, 1935 by the justice of the peace court of San Pablo, Laguna; and third time
on October 19, 1935, by the justice of the peace court of Tanauan,
Batangas.chanroblesvirtualawlibrary chanrobles virtual law library

G.R. No. L-44988
The defense assigns only one error of law in the judgment, to wit, the accused an habitual
delinquent under subsection ( b) of paragraph 5 of article 62 of the Revised Penal Code, and
in imposing upon him the penalty therein provided. It contends that the applicable provision is
that found in subsection ( a) of the aforesaid codal paragraph and article, because in truth and
according to the decisions, the accused has no more than two prior convictions, the third being
the one at bar. Elaborating on this contention, the defense alleges that the conviction on
October 19, 1935, for the crime of theft should not be counted against the accused because it
took place after the commission of the offense at bar on the 11th of the said month and year.
The Solicitor-General in his brief agrees with the defense, and recommends that the penalty
fixed in subsection ( a) of paragraph 5 of article 62 of the Revised Penal Code be imposed upon
the accused. We hold that the third conviction, having taken place after the commission of the
last offense with which the accused is now charged, should not be reckoned with in determining
habitual delinquency and the additional penalty to be imposed, upon the authority of the
decisions of this court in People vs. Santiago (55 Phil., 266), People vs. Ventura (56 Phil., 1,
5), and People vs. Reyes (G.R. Nos. 43904, 43905, October 18, 1935 [62 Phil.,
October 31, 1936
966).chanroblesvirtualawlibrary chanrobles virtual law library

THE PEOPLE OF THE PHILIPPINE ISLANDS, Plaintiff-Appellee, vs. CANUTO
BERNAL, Defendant-Appellant.
Juan M. Ladaw for appellant.
Acting Solicitor-General Melencio for appellee.
IMPERIAL, J.: chanrobles virtual law library
The accused was charged with the crime of theft, the information alleging that, aside from the
presence of the aggravating circumstance of nocturnity, the accused is an habitual delinquent
because he had been convicted, prior to the commission of the offense at bar, thrice of the
same crime of theft. The accused pleaded not guilty, but the court, after trial, found him guilty
as charged, and sentenced him to four (4) months and one (1) day of arresto mayor, to pay
the accessories of the law, to return the three stolen roosters to Mariano de Leon or to
indemnify the latter the value thereof in the sum of P3, and to pay the costs. As an habitual
delinquent, because previously convicted three times of the same crime of theft, he was
The aggravating circumstance of recidivism should be taken into account in the commission of
the crime of theft in view of the established fact that the accused was thrice convicted of the
said crime prior to the trial of this case on November 4, 1935 (art. 14, par. 9, Revised Penal
Code). For this reason, the penalty imposable should be six (6) months and one (1) day of
prision correccional. As an habitual delinquent, because he was twice convicted of the crime of
theft prior to the commission of the offense at bar (art. 62, last paragraph of the Revised Penal
Code), he should be sentenced to the additional penalty of three (3) years of prision
correccional pursuant to subsection ( a) of paragraph 5 of the said
article.chanroblesvirtualawlibrary chanrobles virtual law library
The question arose, in the course of our deliberation on this case, of whether or not in instances
where the accused turns out to be an habitual delinquent the aggravating circumstance of
recidivism, when alleged and proved, should be taken into account in fixing the penalty
applicable for the commission of the principal offense, independently of the additional penalty
provided by law for habitual delinquency. It has been urged that said aggravating should not
be considered, otherwise it would be twice held against the accused inasmuch as it is
necessarily taken into account in ascertaining whether he is a habitual delinquent or not. The

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majority of the court hold to the contrary view, namely, that recidivism should be reckoned
with; hence, the accused is sentenced to the minimum of the maximum penalty fixed by
law.chanroblesvirtualawlibrary chanrobles virtual law library
In resolving this question as above set out, the majority of the court gave heed to the following
considerations:chanrobles virtual law library
First: This is not the first time that the question has been submitted to the consideration of the
court. In People vs. Melendrez (59 Phil., 154), and People vs, Espina (62 Phil., 607), we have
already held that in cases similar to the one at bar, the aggravating circumstance of recidivism
should be taken into consideration, notwithstanding the allegation and proof that the accused
were habitual delinquents and should accordingly be sentenced to the additional penalty
provided by law; andchanrobles virtual law library
Second: It is not correct to assume that recidivism is twice taken into account when the accused
is declared an habitual delinquent and when it is deemed to aggravate the crime in fixing the
principal penalty to be imposed, because recidivism as an aggravating circumstance modifying
criminal liability is not an inherent or integral element of habitual delinquency which the Revised
Penal Code considers as an extraordinary and special aggravating
circumstance.chanroblesvirtualawlibrary chanrobles virtual law library
Under the last subsection of paragraph 5 of article 62 of he Revised Penal Code, a person shall
be deemed to be habitually delinquent, if within a period of ten years from the date of his
release or last conviction of the crime of robbery, theft, estafa, or falsification, he is found
guilty of any of said crimes a third time or oftener. Paragraph 9 of article 14 of the Revised
Penal Code defines recidivism by stating that it is committed by a person who, at the time of
his trial for one crime, shall have been previously convicted by final judgment of another crime
embraced in the same title of the Code. Defining reiteration or habituality paragraph 10 of the
same article provides that it is committed when the offender has been previously punished for
an offense to which the law attaches at an equal or greater penalty or for two or more crimes
to which it attaches a lighter penalty. Reflecting on these definitions it will be seen that
recidivism, viewed as an aggravating circumstance, is not a factor or element which necessarily
forms an integral part of habitual delinquency. It will be noted that the elements as well as the
basis of each of these circumstances are different. For recidivism to exist, it is sufficient that
the accused, on the date of his trial, shall have been previously convicted by final judgment of
another crime embraced in the same title. For the existence of habitual delinquency, it is not
enough that the accused shall have been convicted of any of the crimes specified, and that the
last conviction shall have taken place ten (10) years before the commission of the last offense.
It is necessary that the crimes previously committed be prior to the commission of the offense
with which the accused is charged a third time or oftener.chanroblesvirtualawlibrary chanrobles
virtual law library
In view of the foregoing, the appealed judgment is modified, and the accused-appellant is
found guilty of the crime of theft charged in the complaint and sentenced to six (6) months
and one (1) day of prision correccional, to return to the offended parties the stolen and
unrecovered roosters, or in default thereof to indemnify Elias Piamonte in the sum of P20 and
Mariano de Leon in the sum of P3, with the corresponding subsidiary imprisonment in case of
insolvency, and to an additional penalty of three (3) years of prision correccional, with the costs
in both instances. So ordered.chanroblesvirtualawlibrary chanrobles virtual law library
Avanceña, C. J., Villa-Real, Diaz, and Laurel, JJ., concur.
Separate Opinions
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ABAD SANTOS, J., concurring in part and dissenting in part:chanrobles virtual law library
I agree that the appellant is guilty of the crime of theft, but I am constrained to dissent once
more from the opinion of the majority in so far as it holds that, in the imposition of the penalty
prescribed by law for the crime committed by the appellant, the aggravating circumstance of
recidivism should be taken into consideration. My views on this point have already been set
forth in my opinion filed in the case of People vs. Melendrez (59 Phil., 154), but they will
perhaps bear further elaboration.chanroblesvirtualawlibrary chanrobles virtual law library
I maintain that, upon the facts of this case and the law applicable thereto, the aggravating
circumstance of recidivism should not be taken into consideration in the imposition of the
penalty prescribed by law for the crime of which the appellant has been found
guilty.chanroblesvirtualawlibrary chanrobles virtual law library
Article 14, paragraph 9, of the Revised Penal Code, defines a recidivist as follows:
A recidivist is one who, at the time of his trial for one crime, shall have been previously
convicted by final judgment of another crime embraced in the same title of this Code.
And article 62, paragraph 5 ( c), of the same Code, defines a habitual delinquent as follows:
For the purposes of this article, a person shall be deemed to be habitual delinquent, if within
a period of ten years from the date of his release or last conviction of the crimes of robo, hurto,
estafa, or falsificacion, he is found guilty of any of said crime, a third time or oftener.
It seems clear from the provisions of law above quoted that if, within a period of ten years
from the date of his release, or last conviction of the crime of robo, hurto, estafa, or
falsificacion, a person be found guilty of the same crime for the second time, he would be
deemed a recidivist; and if he be found guilty for the third time or oftener, he would be deemed
a habitual delinquent. The law determines the effect to be given to one previous conviction,
and it also determines the effect of two or more previous convictions. One previous conviction
merely constitutes the generic aggravating circumstance prescribed by article 14, paragraph 9,
while two or more previous convictions qualify the crime. The previous convictions enter into
the third or subsequent offense to the extent of aggravating it, and increasing the punishment.
In other words such previous convictions constitute an essential element of the aggravated
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offense. "The previous conviction enters into the second or third offense to the extent of
aggravating it, and increasing the punishment; and, where it is sought to impose the greater
penalty for a second or third offense, the previous conviction or convictions, like every other
material fact, must be distinctly alleged in the indictment. 'When the statute imposes a higher
penalty upon a second and a third conviction, respectively, it makes the prior conviction of a
similar offense a part of the description and character of the offense intended to be punished;
and therefore the fact of such prior conviction must be charged as well as proved. It is essential
to an indictment that the facts constituting the offense intended to be punished should be
averred.' And in like manner, when a statute, besides imposing a higher penalty upon a second
or third conviction than upon the first, provides that any person convicted of two or more
offenses upon the same indictment shall be subject to the same punishment as if he had been
successively convicted on two indictments, still the second and third offenses must be alleged
in the indictment to be second and third offenses in order to warrant the increased
punishment." (Clark's Criminal Procedure, p. 204, cited with approval in People vs. Nayco, 45
Phil., 167.)chanrobles virtual law library
The same view is expressed by Viada in commenting on article 533 of the Penal Code of Spain
"Tratase aqui del hurto cualificado, cuya criminalidad ha creido conveniente agravar el
legislador, y, por lo tanto, castigar con penas mas severas, cuando por los objetos sobre que
recae, o por el lugar en que se comete, o por las circunstancias personales del culpable o sus
relaciones con el perjudicado, se demuestra la mayor perversidad del primero en la comision
de semejante delito. Algunas de estas circunstancias, como la de ejecutarse el delito el lugar
sagrado, la de intervenir abuso de confianza y la de ser el culpable reincidente, son ya de por
si circunstancias agravantes genericas de todo delito en que concurren (nums. 19, 10 y 18 del
articulo 10). Aqui son algo mas; son circunstancias constitutivas, esenciales de los delitos
previstos en este articulo, y por lo tanto, con arreglo al 79, no cabe apreciarlas al efecto de
aumentar la pena en aquel señalada, la que debera imponerse siempre en el grado medio, a
no concurrir cualquiera otra de las circunstancias generales de agravacion del art. 10 que no
sea de las expresadas, en cuyo caso procederia la aplicacion de la pena en el grado maximo
con arreglo al num. 3.� del art. 82; o a no mediar alguna circunstancia atenuante, pues
entonces deberia imponerse al culpable la pena en el grado minimo, en conformidad a lo
dispuesto en el num. 2.� del precipitado art. 82." (Viada, 5th ed. vol. 6, p. 289.) chanrobles
virtual law library
In United States vs. Campo (23 Phil., 368), this court held that the existence of the generic
aggravating circumstances need not be alleged in a complaint or information, but if proven at
the trial, they must be taken into consideration in imposing the penalty. On the other hand, a
qualifying circumstance must be alleged and proved in order that the same may be taken into
consideration. It has also been held that once a circumstance has been treated as a qualifying
circumstance, it may not again be taken into consideration as a generic aggravating
circumstance.
In those cases wherein, under the provisions of the Penal Code, the legal designation
characterization of an offense is modified by an allegation set forth in the complaint or
information showing that such offense had been marked with one of the above-mentioned
generic aggravating circumstances, this aggravating circumstance when alleged and proven is
treated as a qualifying circumstance, and in that event, having once been taken into
consideration for the purpose of giving to the acts committed by the convict a legal qualification
or characterization higher than they would otherwise have had, it should not be again taken
into consideration as an aggravating circumstance marking the commission of this higher
offense. (Emphasis supplied.)
In People vs. Nayco, supra, this court held that to convict the accused as an habitual
delinquent, the previous convictions, like any qualifying circumstance, must be alleged and
proved.chanroblesvirtualawlibrary chanrobles virtual law library
Article 533 of the Penal Code of Spain provides:
El hurto se castigara con las penas inmediatamente superiores en grado a las respectivamente
señaladas en los dos articulos anteriores:
xxx xxx x x xchanrobles virtual law library
3.� Si fuere dos o mas veces reincidente.
Commenting on this article Viada says:
Cuestion 60. Comete uno un delito de hurto, y resulta haber sido penado anteriormente tres
veces por delito de la misma especie: cabe en este caso apreciar la circunstancia de esa triple
reincidencia, primero como qualificativa, para elevar la pena al grado inmediatamente superior,
tomando para ello dos de las tres reincidencias, y segregar la tercera como agravante generica,
para imponer al culpable dicha para imponer al culpable dicha pena superior en el grado
maximo? El Tribunal Supremo ha resuelto la negative, fundandose en que con arreglo a lo
prescrito en el art. 533, numero 3.� la pena del delito de hurto debe ser la inmediatamente
superior en grado a la respectiva del 531, cuando su autor fuere dos o mas veces reincidente;
siendo evidente, por lo tanto, que las tres expresadas reincidencias, y aun cualquiera otras que
hubiese ademas, no pueden constituir sino una sola circunstancia cualificativa, cuyo efecto es
unicamente el de elevar la pena al grado superior inmediato; y que la Sala sentenciadora, al
dividir y separar esas tres reincidencias, aplicando dos de ellas, la una como circunstancia
cualificativa y la otra como generica o comun, infringe la disposicion legal ultimamente citada,
a la vez que la circunstancia 18.a del art. 10 y la regla 3.a del referido Codigo Penal. ( S. de 21
de diciembre de l872, Gaceta de 16 de febrero de l873. Viada, 5th ed., vol. 6, 317.)
It will be observed that the reason for not taking into consideration the second conviction as a
generic aggravating circumstance in the imposition of the penalty prescribed under article 533
of the Penal Code of Spain, is because the third or subsequent conviction, together with the
previous ones, constitutes but a single qualifying circumstance. The same may be said in
relation to article 62, paragraph 5, of the Revised Penal Code. The third or subsequent
conviction, combined with the previous ones, constitutes but a single qualifying circumstance.
In other words, the second conviction - which generally goes to make up the generic
aggravating circumstance of recidivism - is necessarily included in the number of convictions
required to establish habitual delinquency.chanroblesvirtualawlibrary chanrobles virtual law
library
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Recto, J., concur.

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