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G.R. No. 151258 December 1, 2014

ARTEMIO VILLAREAL, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

x-----------------------x

G.R. No. 154954

PEOPLE OF THE PHILIPPINES, Petitioner,

vs.
THE HONORABLE COURT OF APPEALS, ANTONIO MARIANO ALMEDA, DALMACIO LIM, JR.,
JUNEL ANTHONY AMA, ERNESTO JOSE MONTECILLO, VINCENT TECSON, ANTONIO
GENERAL, SANTIAGO RANADA III, NELSON VICTORINO, JAIME MARIA FLORES II, ZOSIMO
MENDOZA, MICHAEL MUSNGI, VICENTE VERDADERO, ETIENNE GUERRERO, JUDE
FERNANDEZ, AMANTE PURISIMA II, EULOGIO SABBAN, PERCIVAL D. BRIGOLA, PAUL
ANGELO SANTOS, JONAS KARL B. PEREZ, RENATO BANTUG, JR., ADEL ABAS, JOSEPH
LLEDO, and RONAN DE GUZMAN, Respondents.

x-----------------------x

G.R. No. 155101

FIDELITO DIZON, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

x-----------------------x

G.R. Nos. 178057 & 178080

GERARDA H. VILLA, Petitioner,

vs.
MANUEL LORENZO ESCALONA II, MARCUS JOEL CAPELLAN RAMOS, CRISANTO CRUZ
SARUCA, JR., and ANSELMO ADRIANO, Respondents.

RESOLUTION

SERENO, CJ:

We are asked to revisit our Decision in the case involving the death of Leonardo "Lenny" Villa due to
fraternity hazing. While there is nothing new in the arguments raised by the parties in their respective
Motions for Clarification or Reconsideration, we find a few remaining matters needing to be clarified
and resobed. Sorne oJ' these matters include the effect of our Decision on the finality of the Court of
Appeals judgments insofar as respondents Antonio Mariano A!meda (Almeda), June] Anthony D.
Arna (Arna), Renato Bantug, Jr. (Bantug), and Vincent Tecson (Tecson) are concerned; the question
of who are eligible to seek probation; and the issue of the validity of the probation proceedings and
the concomitant orders of a court that allegedly had no jurisdiction over the case.
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Before the Court are the respective Motions for Reconsideration or Clarification filed by petitioners
People of the Philippines, through the Office of the Solicitor General (OSG), and Gerarda H. Villa
(Villa); and by respondents Almeda, Ama, Bantug, and Tecson (collectively, Tecson et al.) concerning
the Decision of this Court dated 1 February 2012.1 The Court modified the assailed judgments2 of
the Court of Appeals (CA) in CA-G.R. CR No. 15520 and found respondents Fidelito Dizon (Dizon),
Almeda, Ama, Bantug, and Tecson guilty beyond reasonable doubt of the crime of reckless
imprudence resulting in homicide. The modification had the effect of lowering the criminal liability of
Dizon from the crime of homicide, while aggravating the verdict against Tecson et al. from slight
physical injuries. The CA Decision itself had modified the Decision of the Caloocan City Regional Trial
Court (RTC) Branch 121 finding all of the accused therein guilty of the crime of homicide.3

Also, we upheld another CA Decision4 in a separate but related case docketed as CA-G.R. S.P. Nos.
89060 & 90153 and ruled that the CA did not commit grave abuse of discretion when it dismissed the
criminal case against Manuel Escalona II (Escalona), Marcus Joel Ramos (Ramos), Crisanto Saruca,
Jr. (Saruca), and Anselmo Adriano (Adriano) on the ground that their right to speedy trial was
violated. Reproduced below is the dispositive portion of our Decision:5

WHEREFORE, the appealed Judgmentin G.R. No. 155101 finding petitioner Fidelito Dizon guilty of
homicide is hereby MODIFIED and SET ASIDE IN PART. The appealed Judgment in G.R. No.
154954 – finding Antonio Mariano Almeda, Junel Anthony Ama, Renato Bantug, Jr., and Vincent
Tecson guilty of the crime of slight physical injuries – is also MODIFIED and SET ASIDE IN PART.
Instead, Fidelito Dizon, Antonio Mariano Almeda, Junel Anthony Ama, Renato Bantug, Jr., and
Vincent Tecson are found GUILTY beyond reasonable doubt of reckless imprudence resulting in
homicide defined and penalized under Article 365 in relation to Article 249 of the Revised Penal
Code. They are hereby sentenced to suffer an indeterminate prison term of four (4) months and one
(1) day of arresto mayor, as minimum, to four (4) years and two (2) months of prision correccional, as
maximum. In addition, accused are ORDERED jointly and severally to pay the heirs of Lenny Villa
civil indemnity ex delicto in the amount of 50,000, and moral damages in the amount of 1,000,000,
plus legal interest on all damages awarded at the rate of 12% from the date of the finality of this
Decision until satisfaction. Costs de oficio.

The appealed Judgment in G.R. No. 154954, acquitting Victorino et al., is hereby AFFIRMED. The
appealed Judgments in G.R. Nos. 178057 & 178080, dismissing the criminal case filed against
Escalona, Ramos, Saruca, and Adriano, are likewise AFFIRMED. Finally, pursuant to Article 89(1) of
the Revised Penal Code, the Petition in G.R. No. 151258 is hereby dismissed, and the criminal case
against Artemio Villareal deemed CLOSED and TERMINATED.

Let copies of this Decision be furnished to the Senate President and the Speaker of the House of
Representatives for possible consideration of the amendment of the Anti-Hazing Law to include the
fact of intoxication and the presence of non-resident or alumni fraternity members during hazing as
aggravating circumstances that would increase the applicable penalties.

SO ORDERED.

To refresh our memories, we quote the factual antecedents surrounding the present case:6

In February 1991, seven freshmen law students of the Ateneo de Manila University School of Law
signified their intention to join the Aquila Legis Juris Fraternity (Aquila Fraternity). They were Caesar
"Bogs" Asuncion, Samuel "Sam" Belleza, Bienvenido "Bien" Marquez III, Roberto Francis "Bert"
Navera, Geronimo "Randy" Recinto, Felix Sy, Jr., and Leonardo "Lenny" Villa (neophytes).
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On the night of 8 February 1991, the neophytes were met by some members of the Aquila Fraternity
(Aquilans) at the lobby of the Ateneo Law School. They all proceeded to Rufo’s Restaurant to have
dinner. Afterwards, they went to the house of Michael Musngi, also an Aquilan, who briefed the
neophytes on what to expect during the initiation rites. The latter were informed that there would be
physical beatings, and that they could quit at any time. Their initiation rites were scheduled to last for
three days. After their "briefing," they were brought to the Almeda Compound in Caloocan City for the
commencement of their initiation.

Even before the neophytes got off the van, they had already received threats and insults from the
Aquilans. As soon as the neophytes alighted from the van and walked towards the pelota court of the
Almeda compound, some of the Aquilans delivered physical blows to them. The neophytes were then
subjected to traditional forms of Aquilan "initiation rites." These rites included the "Indian Run," which
required the neophytes to run a gauntlet of two parallel rows of Aquilans, each row delivering blows to
the neophytes; the "Bicol Express," which obliged the neophytes to sit on the floor with their backs
against the wall and their legs outstretched while the Aquilans walked, jumped, or ran over their legs;
the "Rounds," in which the neophytes were held at the back of their pants by the "auxiliaries" (the
Aquilans charged with the duty of lending assistance to neophytes during initiation rites), while the
latter were being hit with fist blows on their arms or withknee blows on their thighs by two Aquilans;
and the "Auxies’ Privilege Round," in which the auxiliaries were given the opportunity to inflict
physical pain on the neophytes. During this time, the neophytes were also indoctrinated with the
fraternity principles. They survived their first day of initiation.

On the morning of their second day – 9 February 1991 – the neophytes were made to present comic
plays and to play rough basketball. They were also required to memorize and recite the Aquila
Fraternity’s principles. Whenever they would give a wrong answer, they would be hit on their arms or
legs. Late in the afternoon, the Aquilans revived the initiation rites proper and proceeded to torment
them physically and psychologically. The neophytes were subjected to the same manner of hazing
that they endured on the first day of initiation. After a few hours, the initiation for the day officially
ended.

After a while, accused non-resident or alumni fraternity members Fidelito Dizon (Dizon) and Artemio
Villareal (Villareal) demanded that the rites be reopened. The head of initiation rites, Nelson Victorino
(Victorino), initially refused. Upon the insistence of Dizon and Villareal, however, he reopened the
initiation rites. The fraternity members, including Dizon and Villareal, then subjected the neophytes to
"paddling" and to additional rounds of physical pain. Lenny received several paddle blows, one of
which was so strong it sent him sprawling to the ground. The neophytes heard him complaining of
intense pain and difficulty in breathing. After their last session of physical beatings, Lenny could no
longer walk. He had to be carried by the auxiliaries to the carport. Again, the initiation for the day was
officially ended, and the neophytes started eating dinner. They then slept at the carport.

After an hour of sleep, the neophytes were suddenly roused by Lenny’s shivering and incoherent
mumblings.1avvphi1 Initially, Villareal and Dizon dismissed these rumblings, as they thought he was
just overacting. When they realized, though, that Lenny was really feeling cold, some of the Aquilans
started helping him. They removed his clothes and helped him through a sleeping bag to keep him
warm. When his condition worsened, the Aquilans rushed him to the hospital. Lenny was pronounced
dead on arrival.

Consequently, a criminal case for homicide was filed against the following 35 Aquilans:

In Criminal Case No. C-38340(91)

1. Fidelito Dizon (Dizon)

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2. Artemio Villareal (Villareal)

3. Efren de Leon (De Leon)

4. Vincent Tecson (Tecson)

5. Junel Anthony Ama (Ama)

6. Antonio Mariano Almeda (Almeda)

7. Renato Bantug, Jr. (Bantug)

8. Nelson Victorino (Victorino)

9. Eulogio Sabban (Sabban)

10. Joseph Lledo (Lledo)

11. Etienne Guerrero (Guerrero)

12. Michael Musngi (Musngi)

13. Jonas Karl Perez (Perez)

14. Paul Angelo Santos (Santos)

15. Ronan de Guzman (De Guzman)

16. Antonio General (General)

17. Jaime Maria Flores II (Flores)

18. Dalmacio Lim, Jr. (Lim)

19. Ernesto Jose Montecillo (Montecillo)

20. Santiago Ranada III (Ranada)

21. Zosimo Mendoza (Mendoza)

22. Vicente Verdadero (Verdadero)

23. Amante Purisima II (Purisima)

24. Jude Fernandez (J. Fernandez)

25. Adel Abas (Abas)

26. Percival Brigola (Brigola)

In Criminal Case No. C-38340

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1. Manuel Escalona II (Escalona)

2. Crisanto Saruca, Jr. (Saruca)

3. Anselmo Adriano (Adriano)

4. Marcus Joel Ramos (Ramos)

5. Reynaldo Concepcion (Concepcion)

6. Florentino Ampil (Ampil)

7. Enrico de Vera III (De Vera)

8. Stanley Fernandez (S. Fernandez)

9. Noel Cabangon (Cabangon)

Twenty-six of the accused Aquilans in Criminal Case No. C-38340(91) were jointly tried. On the other
hand, the trial against the remaining nine accused in Criminal Case No. C-38340 was held in
abeyance due to certain matters that had to be resolved first.

On 8 November 1993, the trial court rendered judgment in Criminal Case No. C-38340(91), holding
the 26 accused guilty beyond reasonable doubt of the crime of homicide, penalized with reclusion
temporal under Article 249 of the Revised Penal Code. A few weeks after the trial court rendered its
judgment, or on 29 November 1993, Criminal Case No. C-38340 against the remaining nine accused
commenced anew.

On 10 January 2002, the CAin (CA-G.R. No. 15520) set aside the finding of conspiracy by the trial
court in Criminal Case No. C-38340(91) and modified the criminal liability of each of the accused
according to individual participation. Accused De Leon had by then passed away, so the following
Decision applied only to the remaining 25 accused, viz:

1. Nineteen of the accused-appellants– Victorino, Sabban, Lledo, Guerrero, Musngi, Perez, De

Guzman, Santos, General, Flores, Lim, Montecillo, Ranada, Mendoza, Verdadero, Purisima,
Fernandez, Abas, and Brigola (Victorino et al.) – were acquitted,as their individual guilt was not
established by proof beyond reasonable doubt.

2. Four of the accused-appellants– Vincent Tecson, Junel Anthony Ama, Antonio Mariano
Almeda, and Renato Bantug, Jr. (Tecson et al.) – were found guilty of the crime of slight
physical injuriesand sentenced to 20 days of arresto menor. They were also ordered to jointly
pay the heirs of the victim the sum of ₱30,000 as indemnity.

3. Two of the accused-appellants– Fidelito Dizonand Artemio Villareal– were found guilty
beyond reasonable doubt of the crime of homicide under Article 249 of the Revised Penal
Code. Having found no mitigating or aggravating circumstance, the CA sentenced them to an
indeterminate sentence of 10 years of prision mayor to 17 years of reclusion temporal. They
were also ordered to indemnify, jointly and severally, the heirs of Lenny Villa in the sum of
₱50,000 and to pay the additional amount of ₱1,000,000 by way of moral damages.
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On 5 August 2002, the trial court in Criminal Case No. 38340 dismissed the charge against accused
Concepcion on the ground of violation of his right to speedy trial. Meanwhile, on different dates
between the years 2003 and 2005, the trial court denied the respective Motions to Dismiss of
accused Escalona, Ramos, Saruca, and Adriano. On 25 October 2006, the CA in CA-G.R. SP Nos.
89060 & 90153 reversed the trial court’s Orders and dismissed the criminal case against Escalona,
Ramos, Saruca, and Adriano on the basis of violation of their right to speedy trial.

From the aforementioned Decisions, the five (5) consolidated Petitions were individually brought
before this Court. (Citations omitted)

Motion for Partial Reconsideration

filed by Petitioner Gerarda H. Villa

Petitioner Villa filed the present Motion for Partial Reconsideration7 in connection with G.R. Nos.
178057 & 178080 (Villa v. Escalona) asserting that the CA committed grave abuse of discretion when
it dismissed the criminal case against Escalona, Ramos,Saruca, and Adriano (collectively, Escalona
et al.) in its assailed Decision and Resolution.8 Villa reiterates her previous arguments that the right
to speedy trial of the accused was not violated, since they had failed to assert that right within a
reasonable period of time. She stresses that, unlike their co-accused Reynaldo Concepcion,
respondents Escalona et al.did not timely invoke their right to speedy trial during the time that the
original records and pieces of evidence were unavailable. She again emphasizes that the prosecution
cannot be faulted entirely for the lapse of 12 years from the arraignment until the initial trial, as there
were a number of incidents attributable to the accused themselves that caused the delay of the
proceedings. She then insists that we apply the balancing test in determining whether the right to
speedy trial of the accused was violated.

Motion for Reconsideration filed by the OSG

The OSG, in its Motion for Reconsideration9 of G.R. Nos. 155101 (Dizon v. People) and 154954
(People v. Court of Appeals), agrees with the findings of this Court that accused Dizon and Tecson et
al. had neither the felonious intent to kill (animus interficendi) nor the felonious intent to injure (animus
iniuriandi) Lenny Villa. In fact, it concedes that the mode in which the accused committed the crime
was through fault (culpa). However, it contends that the penalty imposed should have been
equivalent to that for deceit (dolo) pursuant to Article 249 (Homicide) of the Revised Penal Code. It
argues that the nature and gravity of the imprudence or negligence attributable to the accused was so
gross that it shattered the fine distinction between dolo and culpaby considering the act as one
committed with malicious intent. It maintains that the accused conducted the initiation rites in such a
malevolent and merciless manner that it clearly endangered the lives of the initiates and was thus
equivalent to malice aforethought.

With respect to the 19 other accused, or Victorino et al., the OSG asserts that their acquittal may also
be reversed despite the rule on double jeopardy, as the CA also committed grave abuse of discretion
in issuing its assailed Decision (CA-G.R. No. 15520). The OSG insists that Victorino et al. should
have been similarly convicted like their other co-accused Dizon, Almeda, Ama, Bantug, and Tecson,
since the former also participated in the hazing of Lenny Villa, and their actions contributed to his
death.

Motions for Clarification or Reconsideration of Tecson et al.

Respondents Tecson et al.,10 filed their respective motions pertaining to G.R. No. 154954 (People v.
Court of Appeals). They essentially seek a clarification as to the effect of our Decision insofar as their
criminal liability and service of sentence are concerned. According to respondents, they immediately
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applied for probation after the CA rendered its Decision (CAG.R. No. 15520) lowering their criminal
liability from the crime of homicide, which carries a non-probationable sentence, to slight physical
injuries, which carries a probationable sentence. Tecson et al.contend that, as a result, they have
already been discharged from their criminal liability and the cases against them closed and
terminated. This outcome was supposedly by virtue of their Applications for Probation on various
dates in January 200211 pursuant to Presidential Decree No. 968, as amended, otherwise known as
the Probation Law. They argue that Branch 130 of Caloocan City Regional Trial Court (RTC) had
already granted their respective Applications for Probation on 11 October 200212 and, upon their
completion of the terms and conditions thereof, discharged them from probation and declared the
criminal case against them terminated on various dates in April 2003.13

To support their claims, respondents attached14 certified true copies of their respective Applications
for Probation and the RTC Orders granting these applications, discharging them from probation, and
declaring the criminal case against them terminated. Thus, they maintain that the Decision in CA-G.R.
No. 15520 had already lapsed into finality, insofar as they were concerned, whenthey waived their
right to appeal and applied for probation.

ISSUES

I. Whether the CA committed grave abuse of discretion amounting to lack or excess of

jurisdiction when it dismissed the case against Escalona, Ramos, Saruca, and Adriano for
violation of their right to speedy trial

II. Whether the penalty imposed on Tecson et al. should have corresponded to that for
intentional felonies

III. Whether the completion by Tecson et al. of the terms and conditions of their probation
discharged them from their criminal liability, and closed and terminated the cases against them
DISCUSSION

Findings on the Motion for Partial Reconsideration of

Petitioner Gerarda H. Villa

As regards the first issue, we take note that the factual circumstances and legal assertions raised by
petitioner Villa in her Motion for Partial Reconsideration concerning G.R. Nos. 178057 & 178080 have
already been thoroughly considered and passed uponin our deliberations, which led to our Decision
dated 1 February 2012. We emphasize that in light of the finding of violation of the right of Escalona
et al. to speedy trial, the CA’s dismissal of the criminal case against them amounted to an acquittal,15
and that any appeal or reconsideration thereof would result in a violation of their right against double
jeopardy.16 Though we have recognized that the acquittal of the accused may be challenged where
there has been a grave abuse of discretion,17 certiorari would lie if it is convincingly established that
the CA’s Decision dismissing the case was attended by a whimsical or capricious exercise of
judgment equivalent to lack of jurisdiction. It must be shown that the assailed judgment constitutes "a
patent and gross abuse of discretion amounting to an evasion of a positive duty or to a virtual refusal
to perform a duty imposed by law or toact in contemplation of law; an exercise of power in an arbitrary
and despotic manner by reason of passion and hostility; or a blatant abuse of authority to a point so
grave and so severe as to deprive the court of its very power to dispense justice."18 Thus, grave
abuse of discretion cannot be attributed to a court simply because it allegedly misappreciated the
facts and the evidence.19

We have taken a second look at the court records, the CA Decision, and petitioner’s arguments and
found no basis to rule that the CA gravely abused its discretion in concluding that the right to speedy
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trial of the accused was violated. Its findings were sufficiently supported by the records of the case
and grounded in law. Thus, we deny the motion of petitioner Villa with finality.

Ruling on the Motion for Reconsideration filed by the OSG

We likewise deny with finality the Motion for Reconsideration filed by the OSG with respect to G.R.
Nos. 155101 (Dizon v. People) and 154954 (People v. Court of Appeals). Many of the arguments
raised therein are essentially a mere rehash of the earlier grounds alleged in its original Petition for
Certiorari.

Furthermore, we cannot subscribe to the OSG’s theory that even if the act complained of was born of
imprudence or negligence, malicious intent can still be appreciated on account of the gravity of the
actions of the accused. We emphasize that the finding of a felony committed by means of culpa is
legally inconsistent with that committed by means of dolo. Culpable felonies involve those wrongs
done as a result of an act performed without malice or criminal design. The Revised Penal Code
expresses thusly:

ARTICLE 365. Imprudence and Negligence. — Any person who, by reckless imprudence, shall
commit any act which, had it been intentional, would constitute a grave felony, shall suffer the penalty
of arresto mayorin its maximum period toprisión correccional in its medium period; if it would have
constituted a less grave felony, the penalty of arresto mayor in its minimum and medium periods shall
be imposed.

Any person who, by simple imprudence or negligence, shall commit an act which would otherwise
constitute a grave felony, shall suffer the penalty of arresto mayorin its medium and maximum
periods; if it would have constituted a less serious felony, the penalty of arresto mayor in its minimum
period shall be imposed.

xxxx

Reckless imprudence consists in voluntary, but without malice, doing or falling to do an act from
which material damage results by reason of inexcusable lack of precaution on the part of the person
performing or failing to perform suchact, taking into consideration his employment or occupation,
degree of intelligence, physical condition and other circumstances regarding persons, time and place.

Simple imprudence consists in the lack of precaution displayed in those cases in which the damage
impending to be caused is not immediate nor the danger clearly manifest. (Emphases supplied)

On the other hand, intentional felonies concern those wrongs in which a deliberate malicious intent to
do an unlawful act is present. Below is our exhaustive discussion on the matter:20 Our Revised Penal
Code belongs tothe classical school of thought. x x x The identity of mens rea– defined as a guilty
mind, a guilty or wrongful purpose or criminal intent – is the predominant consideration. Thus, it is not
enough to do what the law prohibits. In order for an intentional felony to exist, it is necessary that the
act be committed by means of doloor "malice."

The term "dolo" or "malice" is a complex idea involving the elements of freedom, intelligence, and
intent. x x x x The element of intent – on which this Court shall focus – is described as the state of
mind accompanying an act, especially a forbidden act. It refers to the purpose of the mind and the
resolve with which a person proceeds.It does not refer to mere will, for the latter pertains to the act,
while intentconcerns the result of the act. While motive is the "moving power" that impels one to
action for a definite result, intent is the "purpose" of using a particular means to produce the result.
On the other hand, the term "felonious"means, inter alia, malicious, villainous, and/or proceeding from
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an evil heart or purpose.With these elements taken together, the requirement of intent in intentional
felony must refer to malicious intent, which is a vicious and malevolent state of mind accompanying a
forbidden act. Stated otherwise, intentional felony requires the existence of dolus malus– that the act
or omission be done "willfully," "maliciously," "with deliberate evil intent," and "with malice
aforethought." The maxim is actus non facit reum, nisi mens sit rea– a crime is not committed if the
mind of the person performing the act complained of is innocent. As is required of the other elements
of a felony, the existence of malicious intent must be proven beyond reasonable doubt.

xxxx

The presence of an initial malicious intent to commit a felony is thus a vital ingredient in establishing
the commission of the intentional felony of homicide. Being mala in se, the felony of homicide
requires the existence of malice or dolo immediately before or simultaneously with the infliction of
injuries. Intent to kill – or animus interficendi– cannot and should not be inferred, unless there is proof
beyond reasonable doubt of such intent. Furthermore, the victim’s death must not have been the
product of accident, natural cause, or suicide. If death resulted from an act executed without malice or
criminal intent – but with lack of foresight, carelessness, or negligence – the act must be qualified as
reckless or simple negligence or imprudence resulting in homicide.

xxxx

In order to be found guilty ofany of the felonious acts under Articles 262 to 266 of the Revised Penal
Code, the employment of physical injuries must be coupled with dolus malus. As an act that is mala in
se, the existence of malicious intent is fundamental, since injury arises from the mental state of the
wrongdoer – iniuria ex affectu facientis consistat. If there is no criminal intent, the accused cannot be
found guilty of an intentional felony. Thus, incase of physical injuries under the Revised Penal Code,
there must be a specific animus iniuriandi or malicious intention to do wrong against the physical
integrity or wellbeing of a person, so as to incapacitate and deprive the victim of certain bodily
functions. Without proof beyond reasonable doubt of the required animus iniuriandi, the overt act of
inflicting physical injuries per semerely satisfies the elements of freedom and intelligence in an
intentional felony. The commission of the act does not, in itself, make a man guilty unless his
intentions are.

Thus, we have ruled in a number of instances that the mere infliction of physical injuries,
absentmalicious intent, does not make a person automatically liable for an intentional felony.x x x.

xxxx

The absence of malicious intent does not automatically mean, however, that the accused fraternity
members are ultimately devoid of criminal liability. The Revised Penal Code also punishes felonies
that are committed by means of fault (culpa). According to Article 3 thereof, there is fault when the
wrongful act results from imprudence, negligence, lack of foresight, or lack of skill.

Reckless imprudence or negligence consists of a voluntary act done without malice, from which an
immediate personal harm, injury or material damage results by reason of an inexcusable lack of
precaution or advertence on the part of the person committing it. In this case, the danger is visible
and consciously appreciated by the actor. In contrast, simple imprudence or negligence comprises an
act done without grave fault, from which an injury or material damage ensues by reason of a mere
lack of foresight or skill. Here, the threatened harm is not immediate, and the danger is not openly
visible.
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The test for determining whether or not a person is negligent in doing an act is as follows: Would a
prudent man in the position of the person to whom negligence is attributed foresee harm to the
person injured as a reasonable consequence of the course about to be pursued? If so, the law
imposes on the doer the duty to take precaution against the mischievous resultsof the act. Failure to
do so constitutes negligence.

As we held in Gaid v. People, for a person to avoid being charged with recklessness, the degree of
precaution and diligence required varies with the degree of the danger involved. If, on account of a
certain line of conduct, the danger of causing harm to another person is great, the individual who
chooses to follow that particular course of conduct is bound to be very careful, inorder to prevent or
avoid damage or injury. In contrast, if the danger is minor, not much care is required. It is thus
possible that there are countless degrees of precaution or diligence that may be required of an
individual, "from a transitory glance of care to the most vigilant effort." The duty of the person to
employ more or less degree of care will depend upon the circumstances of each particular case.
(Emphases supplied, citations omitted)

We thus reiterate that the law requires proof beyond reasonable doubt of the existence of malicious
intent or dolus malus before an accused can be adjudged liable for committing an intentional felony.

Since the accused were found to have committed a felony by means of culpa, we cannot agree with
the argument of the OSG. It contends that the imposable penalty for intentional felony can also be
applied to the present case on the ground that the nature of the imprudence or negligence of the
accused was so gross that the felony already amounted to malice. The Revised Penal Code has
carefully delineated the imposable penalties as regards felonies committed by means of culpaon the
one hand and felonies committed by means of doloon the other in the context of the distinctions it has
drawn between them. The penalties provided in Article 365 (Imprudence and Negligence) are
mandatorily applied if the death of a person occurs as a result of the imprudence or negligence of
another. Alternatively, the penalties outlined in Articles 246 to 261 (Destruction of Life) are
automatically invoked if the death was a result of the commission of a forbidden act accompanied by
a malicious intent. These imposable penalties are statutory, mandatory, and not subjectto the
discretion of the court. We have already resolved – and the OSG agrees – that the accused Dizon
and Tecson et al. had neither animus interficendi nor animus iniuriandi in inflicting physical pain on
Lenny Villa. Hence, we rule that the imposable penalty is what is applicable to the crime of reckless
imprudence resulting in homicide as defined and penalized under Article 365 of the Revised Penal
Code.

Ruling on the Motions for Clarification or Reconsideration

filed by Tecson et al.

We clarify, however, the effect of our Decision in light of the motions of respondents Tecson et al. vis-
à-vis G.R. No. 154954 (People v. Court of Appeals).

The finality of a CA decision will not

bar the state from seeking the
annulment of the judgment via a
Rule 65 petition.

In their separate motions,21 respondents insist that the previous verdict of the CA finding them guilty
of slight physical injuries has already lapsed into finality as a result of their respective availments of
the probation program and their ultimate discharge therefrom. Hence, they argue that they can no
longer be convicted of the heavier offense of reckless imprudence resulting in homicide.22
 11

Respondents allude to our Decision in Tan v. People23 to support their contention that the CA
judgment can no longer be reversed or annulled even by this Court.

The OSG counters24 that the CA judgment could not have attained finality, as the former had timely
filed with this Court a petition for certiorari. It argues that a Rule 65 petition is analogous to an appeal,
or a motion for new trial or reconsideration, in that a petition for certiorarialso prevents the case from
becoming final and executory until after the matter is ultimately resolved.

Indeed, Rule 120 of the Rules of Court speaks of the finality of a criminal judgment once the accused
applies for probation, viz:

SECTION 7. Modification of judgment. — A judgment of convictionmay, upon motion of the accused,

be modified or set aside before it becomes final or before appeal is perfected. Except where the
death penalty is imposed, a judgment becomes finalafter the lapse of the period for perfecting an
appeal, or whenthe sentence has been partially or totally satisfied or served, or when the accusedhas
waived in writing his right to appeal, or has applied for probation. (7a) (Emphases supplied)

Coupled with Section 7 of Rule 11725 and Section 1 of Rule 122,26 it can be culled from the
foregoing provisions that only the accused may appeal the criminal aspect of a criminal case,
especially if the relief being sought is the correction or review of the judgment therein. This rule was
instituted in order to give life to the constitutional edict27 against putting a person twice in jeopardy of
punishment for the same offense. It is beyond contention that the accused would be exposed to
double jeopardy if the state appeals the criminal judgment in order to reverse an acquittal or even to
increase criminal liability. Thus, the accused’s waiver of the right to appeal – as when applying for
probation – makes the criminal judgment immediately final and executory. Our explanation in People
v. Nazareno is worth reiterating:28

Further prosecution via an appeal from a judgment of acquittal is likewise barred because the
government has already been afforded a complete opportunity to prove the criminal defendant’s
culpability; after failing to persuade the court to enter a final judgment of conviction, the underlying
reasons supporting the constitutional ban on multiple trials applies and becomes compelling. The
reason is not only the defendant’s already established innocence at the first trial where he had been
placed in peril of conviction, but also the same untoward and prejudicial consequences of a second
trial initiated by a government who has at its disposal all the powers and resources of the State.

Unfairness and prejudice would necessarily result, as the government would then be allowed another
opportunity to persuade a second trier of the defendant’s guilt while strengthening any weaknesses
that had attended the first trial, all in a process where the government’s power and resources are
once again employed against the defendant’s individual means. That the second opportunity
comesvia an appeal does not make the effects any less prejudicial by the standards of reason, justice
and conscience. (Emphases supplied, citations omitted)

It must be clarified, however, that the finality of judgment evinced in Section 7 of Rule 120 does not
confer blanket invincibility on criminal judgments. We have already explained in our Decision that the
rule on double jeopardy is not absolute, and that this rule is inapplicable to cases in which the state
assails the very jurisdiction of the court that issued the criminal judgment.29 The reasoning behind
the exception is articulated in Nazareno, from which we quote:30

In such instance, however, no review of facts and law on the merits, in the manner done in an appeal,
actually takes place; the focus of the review is on whether the judgment is per sevoid on jurisdictional
grounds, i.e., whether the verdict was rendered by a court that had no jurisdiction; or where the court
has appropriate jurisdiction, whether it acted with grave abuse of discretion amounting to lack or
 12

excess of jurisdiction. In other words, the review is on the question of whether there has been a
validly rendered decision, not on the question of the decision’s error or correctness. Under the
exceptional nature of a Rule 65 petition, the burden — a very heavy one — is on the shoulders of the
party asking for the review to show the presence of a whimsical or capricious exercise of judgment
equivalent to lack of jurisdiction; or of a patent and gross abuse of discretion amounting to an evasion
of a positive duty or a virtual refusal to perform a duty imposed by law or to act in contemplation of
law; or to an exercise of power in an arbitrary and despotic manner by reason of passion and hostility.
(Emphases supplied, citations omitted) While this Court’s Decision in Tan may have created an
impression of the unassailability of a criminal judgment as soon as the accused applies for probation,
we point out that what the state filed therein was a mere motion for the modification of the penalty,
and not a Rule 65 petition. A petition for certiorari is a special civil action that is distinct and separate
from the main case. While in the main case, the core issue is whether the accused is innocent or
guilty of the crime charged, the crux of a Rule 65 petition is whether the court acted (a) without or in
excess of its jurisdiction; or (b) with grave abuse of discretion amounting to lack or excess of
jurisdiction. Hence, strictly speaking, there is nomodification of judgment in a petition for certiorari,
whose resolution does not call for a re-evaluation of the merits of the case in order to determine the
ultimate criminal responsibility of the accused. In a Rule 65 petition, any resulting annulment of a
criminal judgment is but a consequence of the finding of lack of jurisdiction.

In view thereof, we find that the proper interpretation of Section 7 of Rule 120 must be that it is
inapplicable and irrelevant where the court’s jurisdiction is being assailed through a Rule 65 petition.
Section 7 of Rule 120 bars the modification of a criminal judgment only if the appeal brought before
the court is in the nature of a regular appeal under Rule 41, or an appeal by certiorari under Rule 45,
and if that appeal would put the accused in double jeopardy. As it is, we find no irregularity in the
partial annulment of the CA Decision in CA-G.R. No. 15520 in spite of its finality, as the judgment
therein was issued with grave abuse of discretion amounting to lack or excess of jurisdiction.

The orders of Caloocan City RTC

Branch 130 have no legal effect, as
they were issued without jurisdiction.

First, Tecson et al. filed their Applications for Probation with the wrong court. Part and parcel of our
criminal justice system is the authority or jurisdiction of the court to adjudicate and decide the case
before it. Jurisdiction refers to the power and capacity of the tribunal to hear, try, and decide a
particular case or matter before it.31 That power and capacity includes the competence to pronounce
a judgment, impose a punishment,32 and enforce or suspend33 the execution of a sentencein
accordance with law.

The OSG questions34 the entire proceedings involving the probation applications of Tecson et al.
before Caloocan City RTC Branch 130. Allegedly, the trial court did not have competence to take
cognizance of the applications, considering that it was not the court of origin of the criminal case. The
OSG points out that the trial court that originally rendered the Decision in Criminal Case No. C-
38340(91) was Branch 121 of the Caloocan City RTC.

The pertinent provision of the Probation Law is hereby quoted for reference:

SEC. 4. Grant of Probation. — Subject to the provisions of this Decree, the trial court may, after it
shall have convicted and sentenced a defendant, and upon application by said defendant within the
period for perfecting an appeal, suspend the execution of the sentence and place the defendant on
probation for such period and upon such terms and conditions as it may deem best; Provided, That
no application for probation shall be entertained or granted if the defendant has perfected the appeal
from the judgment of conviction. x x x x (Emphases supplied)
 13

It is obvious from the foregoing provision that the law requires that an application for probation be
filed withthe trial court that convicted and sentenced the defendant, meaning the court of origin. Here,
the trial court that originally convicted and sentenced Tecson et al.of the crime of homicide was
Branch 121 – not Branch 130 – of the Caloocan City RTC.35 Neither the judge of Branch 130 in his
Orders nor Tecson et al.in their pleadings have presented any explanation or shown any special
authority that would clarify why the Applications for Probation had not been filed with or taken
cognizance of by Caloocan City RTC Branch 121. While we take note that in a previous case, the CA
issued a Decision ordering the inhibition of Branch 121 Judge Adoracion G. Angeles from hearing
and deciding Criminal Case No. C-38340(91), the ruling was made specifically applicable to the trial
of petitioners therein, i.e. accused Concepcion, Ampil, Adriano, and S. Fernandez.36

Tecson et al. thus committed a fatal error when they filed their probation applications with Caloocan
City RTC Branch 130, and not with Branch 121. We stress that applicants are not at liberty to choose
the forum in which they may seek probation, as the requirement under Section 4 of the Probation law
is substantive and not merely procedural. Considering, therefore, that the probation proceedings were
premised on an unwarranted exercise of authority, we find that Caloocan City RTC Branch 130 never
acquired jurisdiction over the case.

Second, the records of the casewere still with the CA when Caloocan City RTC Branch 130 granted
the probation applications. Jurisdiction over a case is lodged with the court in which the criminal
action has been properly instituted.37 If a party appeals the trial court’s judgment or final order,38
jurisdiction is transferred to the appellate court. The execution of the decision is thus stayed insofar
as the appealing party is concerned.39 The court of origin then loses jurisdiction over the entire case
the moment the other party’s time to appeal has expired.40 Any residual jurisdiction of the court of
origin shall cease – including the authority to order execution pending appeal – the moment the
complete records of the case are transmitted to the appellate court.41 Consequently, it is the
appellate court that shall have the authority to wield the power to hear, try, and decide the case
before it, as well as to enforce its decisions and resolutions appurtenant thereto. That power and
authority shall remain with the appellate court until it finally disposes of the case. Jurisdiction cannot
be ousted by any subsequent event, even if the nature of the incident would have prevented
jurisdiction from attaching in the first place.

According to Article 78 of the Revised Penal Code, "[n]o penalty shall be executed except by virtue of
a final judgment." A judgment of a court convicting or acquitting the accused of the offense charged
becomes final under any of the following conditions among others:42 after the lapse of the period for
perfecting an appeal; when the accused waives the right to appeal; upon the grant of a withdrawal
ofan appeal; when the sentence has already been partially or totally satisfied or served; or when the
accused applies for probation. When the decision attains finality, the judgment or final order is
entered in the book of entries of judgments.43 If the case was previously appealed to the CA, a
certified true copy of the judgment or final order must be attached to the original record, which shall
then be remanded to the clerk of the court from which the appeal was taken.44 The court of origin
then reacquires jurisdiction over the case for appropriate action. It is during this time that the court of
origin may settle the matter of the execution of penalty or the suspension of the execution thereof,45
including the convicts’ applications for probation.46

A perusal of the case records reveals that the CA had not yet relinquished its jurisdiction over the
case when Caloocan City RTC Branch 130 took cognizance of the Applications for Probation of
Tecson et al. It shows that the accused filed their respective applications47 while a motion for
reconsideration was still pending before the CA48 and the records were still with that court.49 The CA
settled the motion only upon issuing the Resolution dated 30 August 2002 denying it, or about seven
months after Tecson et al. had filed their applications with the trial court.50 In September 2002, or
almost a month before the promulgation of the RTC Order dated 11 October 2002 granting the
 14

probation applications,51 the OSG had filed Manifestations of Intent to File Petition for Certiorari with
the CA52 and this Court.53 Ultimately, the OSG assailed the CA judgments by filing before this Court
a Petition for Certiorari on 25 November 2002.54 We noted the petition and then required
respondents to file a comment thereon.55 After their submission of further pleadings and motions, we
eventually required all parties to file their consolidated memoranda.56 The records of the case
remained with the CA until they were elevated to this Court in 2008.57

For the foregoing reasons, we find that RTC Branch 130 had no jurisdiction to act on the probation
applications of Tecson et al. It had neither the power nor the authority to suspend their sentence,
place them on probation, order their final discharge, and eventually declare the case against them
terminated. This glaring jurisdictional faux pasis a clear evidence of either gross ignorance of the law
oran underhanded one-upmanship on the part of RTC Branch 130 or Tecson et al., or both – to which
this Court cannot give a judicial imprimatur.

In any event, Tecson et al. were ineligible to seek probation at the time they applied for it.
Probation58 is a special privilege granted by the state to penitent qualified offenders who immediately
admit their liability and thus renounce their right to appeal. In view of their acceptance of their fate and
willingness to be reformed, the state affords them a chance to avoid the stigma of an incarceration
recordby making them undergo rehabilitation outside of prison. Some of the major purposes of the
law are to help offenders to eventually develop themselves into law-abiding and self respecting
individuals, as well as to assist them in their reintegration with the community.

It must be reiterated that probation is not a right enjoyed by the accused. Rather, it is an act of grace
orclemency conferred by the state. In Francisco v. Court of Appeals,59 this Court explained thus:

It is a special prerogative granted by law to a person or group of persons not enjoyed by others or by
all. Accordingly, the grant of probation rests solely upon the discretion of the court which is to be
exercised primarily for the benefit of organized society, and only incidentally for the benefit of the
accused. The Probation Law should not therefore be permitted to divest the state or its government of
any of the latter’s prerogatives, rights or remedies, unless the intention of the legislature to this end is
clearly expressed, and no person should benefit from the terms of the law who is not clearly within
them. (Emphases supplied)

The OSG questions the validity of the grant of the probation applications of Tecson et al.60 It points
out that when they appealed to the CA their homicide conviction by the RTC, they thereby made
themselves ineligible to seek probation pursuant to Section 4 of Presidential Decree No. 968 (the
Probation Law).

We refer again to the full text ofSection 4 of the Probation Law as follows:

SEC. 4. Grant of Probation. — Subject to the provisions of this Decree, the trial court may, after it
shall have convicted and sentenced a defendant, and upon application by said defendant within the
period for perfecting an appeal, suspend the execution of the sentence and place the defendant on
probation for such period and upon such terms and conditions as it may deem best; Provided, That
no application for probation shall be entertained or granted if the defendant has perfected the appeal
from the judgment of conviction.

Probation may be granted whether the sentence imposes a term of imprisonment or a fine only. An
application for probation shall be filed with the trial court. The filing of the application shall be deemed
a waiver of the right to appeal.

An order granting or denying probation shall not be appealable. (Emphases supplied)

 15

Indeed, one of the legal prerequisites of probation is that the offender must not have appealed the
conviction.61 In the 2003 case Lagrosa v. Court of Appeals,62 this Court was faced with the issue of
whether a convict may still apply for probation even after the trial court has imposed a non
probationable verdict, provided that the CA later on lowers the original penalty to a sentence within
the probationable limit. In that case, the trial court sentenced the accused to a maximum term of eight
years of prisión mayor, which was beyond the coverage of the Probation Law. They only became
eligible for probation after the CA reduced the maximum term of the penalty imposed to 1 year, 8
months and 21 days of prisión correccional.

In deciding the case, this Court invoked the reasoning in Francisco and ruled that the accused was
ineligiblefor probation, since they had filed an appeal with the CA. In Francisco, we emphasized that
Section 4 of the Probation Law offers no ambiguity and does not provide for any distinction,
qualification, or exception. What is clearis that all offenders who previously appealed their cases,
regardless of their reason for appealing, are disqualified by the law from seeking probation.
Accordingly, this Court enunciated in Lagrosathat the accused are disallowed from availing
themselves of the benefits of probation if they obtain a genuine opportunity to apply for probation only
on appeal as a result of the downgrading of their sentence from non-probationable to probationable.

While Lagrosa was promulgated three months after Caloocan City RTC Branch 130 issued its various
Orders discharging Tecson et al. from probation, the ruling in Lagrosa, however, was a mere
reiteration of the reasoning of this Court since the 1989 case Llamado v. Court of Appeals63 and
Francisco. The Applications for Probation of Tecson et al., therefore, should not have been granted
by RTC Branch 130, as they had appealed their conviction to the CA. We recall that respondents
were originally found guilty of homicide and sentenced to suffer 14 years, 8 months, and 1 day of
reclusion temporal as maximum. Accordingly, even if the CA later downgraded their conviction to
slight physical injuries and sentenced them to 20 days of arresto menor, which made the sentence fall
within probationable limits for the first time, the RTC should have nonetheless found them ineligible
for probation at the time.

The actions of the trial court must thus be adjudged as an arbitrary and despotic use of authority, so
gross that it divested the court of its very power to dispense justice. As a consequence, the RTC
Orders granting the Applications for Probation of Tecson et al. and thereafter discharging them from
their criminal liability must be deemed to have been issued with grave abuse of discretion amounting
to lack or excess of jurisdiction.

Whether for lack of jurisdiction orfor grave abuse of discretion, amounting to lack or excess of
jurisdiction, we declare all orders, resolutions, and judgments of Caloocan City RTC Branch 130 in
relation to the probation applications of Tecson et al. null and void for having been issued without
jurisdiction. We find our pronouncement in Galman v. Sandiganbayan64 applicable, viz:

A void judgment is, in legal effect, no judgment at all. By it no rights are divested. Through it, no rights
can be attained. Being worthless, all proceedings founded upon it are equally worthless. It neither
binds nor bars anyone. All acts performed under it and all claims flowing out of it are void. (Emphasis
supplied)

The ultimate discharge of Tecson et

al. from probation did not totally
extinguish their criminal liability.

Accused Bantug asserts65 that, in any event, their criminal liability has already been extinguished as
a result of their discharge from probation and the eventual termination of the criminal case against
 16

them by Caloocan City RTC Branch 130. To support his argument, he cites the following provision of
the Revised Penal Code:

ARTICLE 89. How Criminal Liability is Totally Extinguished. — Criminal liability is totally extinguished:

1. By the death of the convict, as to the personal penalties; and as to pecuniary penalties,
liability therefor is extinguished only when the death of the offender occurs before final
judgment.

2. By service of the sentence.

3. By amnesty, which completely extinguishes the penalty and all its effects.

4. By absolute pardon.

5. By prescription of the crime.

6. By prescription of the penalty.

7. By the marriage of the offended woman, as provided in article 344 of this Code. (Emphasis
supplied)

As previously discussed, a void judgment cannot be the source of legal rights; legally speaking, it is
as if no judgment had been rendered at all. Considering our annulment of the Orders of Caloocan
City RTC Branch 130 in relation to the probation proceedings, respondents cannot claim benefits that
technically do not exist.

In any event, Tecson et al.cannot invoke Article89 of the Revised Penal Code, as we find it
inapplicable to this case. One of the hallmarks of the Probation Law is precisely to "suspend the
execution of the sentence,"66 and not to replace the original sentence with another, as we pointed
out in our discussion in Baclayon v. Mutia:67

An order placing defendant on "probation" is not a "sentence" but is rather in effect a suspension of
the imposition of sentence. It is not a final judgment but is rather an "interlocutory judgment"in the
nature of a conditional order placing the convicted defendant under the supervision of the court for his
reformation, to be followed by a final judgment of discharge, if the conditions of the probation are
complied with, or by a final judgment of sentence if the conditions are violated. (Emphases supplied)

Correspondingly, the criminal liability of Tecson et al.remains.

In light of our recent Decision in
Colinares v. People, Tecson et al.
may now reapply for probation.

Very recently, in Colinares v. People,68 we revisited our ruling in Franciscoand modified our
pronouncements insofar as the eligibility for probation of those who appeal their conviction is
concerned. Through a majority vote of 9-6, the Court En Bancin effect abandoned Lagrosaand settled
the following once and for all:69

Secondly, it is true that under the probation law the accused who appeals "from the judgment of
conviction" is disqualified from availing himself of the benefits of probation. But, as it happens, two
judgments of conviction have been meted out to Arnel: one, a conviction for frustrated homicide by
 17

the regional trial court,now set aside; and, two, a conviction for attempted homicide by the Supreme
Court.

If the Court chooses to go by the dissenting opinion’s hard position, it will apply the probation law on
Arnel based on the trial court’s annulled judgment against him. He will not be entitled to probation
because of the severe penalty that such judgment imposed on him. More, the Supreme Court’s
judgment of conviction for a lesser offense and a lighter penalty will also have to bend over to the trial
court’s judgment — even if this has been found in error. And, worse, Arnel will now also be made to
pay for the trial court’s erroneous judgment with the forfeiture of his right to apply for probation. Ang
kabayo ang nagkasala, ang hagupit ay sa kalabaw(the horse errs, the carabao gets the whip). Where
is justice there?

The dissenting opinion also expresses apprehension that allowing Arnel to apply for probation would
dilute the ruling of this Court in Francisco v. Court of Appealsthat the probation law requires that an
accused must not have appealed his conviction before he can avail himself of probation. But there is
a huge difference between Franciscoand this case.

xxxx

Here, however, Arnel did not appeal from a judgment that would have allowed him to apply for
probation. He did not have a choice between appeal and probation. Hewas not in a position to say,
"By taking this appeal, I choose not to apply for probation." The stiff penalty that the trial court
imposed on him denied him that choice. Thus, a ruling that would allow Arnel to now seek probation
under this Court’s greatly diminished penalty will not dilute the sound ruling in Francisco. It remains
that those who will appeal from judgments of conviction, when they have the option to try for
probation, forfeit their right to apply for that privilege.

xxxx

In a real sense, the Court’s finding that Arnel was guilty, not of frustrated homicide, but only of
attempted homicide, is an original conviction that for the first time imposes on him a probationable
penalty. Had the RTC done him right from the start, it would have found him guilty of the correct
offense and imposed on him the right penalty of two years and four months maximum. This would
have afforded Arnel the right to apply for probation.

The Probation Law never intended to deny an accused his right to probation through no fault of his.
The underlying philosophy of probation is one of liberality towards the accused. Such philosophy is
not served by a harsh and stringent interpretation of the statutory provisions. As Justice Vicente V.
Mendoza said in his dissent in Francisco, the Probation Law must not be regarded as a mere
privilege to be given to the accused only where it clearly appears he comes within its letter; to do so
would be to disregard the teaching in many cases that the Probation Law should be applied in favor
of the accused not because it is a criminal law but to achieve its beneficent purpose.

xxxx

At any rate, what is clear is that, had the RTC done what was right and imposed on Arnel the correct
penalty of two years and four months maximum, he would havehad the right to apply for probation.
No one could say with certainty that he would have availed himself of the right had the RTC doneright
by him. The idea may not even have crossed his mind precisely since the penalty he got was not
probationable.
 18

The question in this case is ultimately one of fairness.1âwphi1 Is it fair to deny Arnel the right to apply
for probation when the new penalty that the Court imposes on him is, unlike the one erroneously
imposed by the trial court, subject to probation? (Emphases supplied)

In our Decision, we set aside the RTC and the CA judgments and found Tecson et al.ultimately liable
for the crime of reckless imprudence resulting in homicide. Pursuant to Article 365 of the Revised
Penal Code, the offense is punishable by arresto mayor in its maximum period (from 4 months and 1
day to 6 months) to prisión correccional in its medium period (from 2 years, 4 months, and 1 day to 4
years and 2 months). Considering that the new ruling in Colinares is more favorable to Tecson et al.,
we rule that they are now eligible to apply for probation. Since Fidelito Dizon (Dizon) was convicted of
the same crime, we hereby clarify that Dizon is also eligible for probation.

While we cannot recognize the validityof the Orders of RTC Branch 130, which granted the
Applications for Probation, we cannot disregard the fact that Tecson et al. have fulfilled the terms and
conditions of their previous probation program and have eventually been discharged therefrom. Thus,
should they reapply for probation, the trial court may, at its discretion, consider their antecedent
probation service in resolving whether to place them under probation at this time and in determining
the terms, conditions, and period thereof.

Final clarificatory matters

We now take this opportunity to correct an unintentional typographical error in the minimum term of
the penalty imposed on the accused Dizon and Tecson et al. While this issue was not raised by any
of the parties before us, this Court deems it proper to discuss the matter ex proprio motuin the
interest of justice. In the first paragraph of the dispositive portion of our Decision dated 1 February
2012, the fourth sentence reads as follows:

They are hereby sentenced to suffer anindeterminate prison term of four (4) months and one (1) day
of arresto mayor, as minimum, to four (4) years and two (2) months of prisión correccional, as
maximum.

As we had intended to impose on the accused the maximum term of the "penalty next lower" than
that prescribed by the Revised Penal Code for the offense of reckless imprudence resulting in
homicide, in accordance with the Indeterminate Sentence Law (ISL),70 the phrase "and one (1) day,"
which had been inadvertently added, must be removed. Consequently, in the first paragraph of the
dispositive portion, the fourth sentence should now read as follows:

They are hereby sentenced to suffer anindeterminate prison term of four (4) months of arresto mayor,
as minimum, to four (4) years and two (2) months of prisión correccional, as maximum. In this
instance, we further find it important to clarify the accessory penalties inherent to the principal penalty
imposed on Dizon and Tecson et al.

By operation of Articles 40 to 45 and 73 of the Revised Penal Code, a corresponding accessory

penalty automatically attaches every time a court lays down a principal penalty outlined in Articles 25
and 27 thereof.71 The applicable accessory penalty is determined by using as reference the principal
penaltyimposed by the court before the prison sentence is computed in accordance with the ISL.72
This determination is made in spite of the two classes ofpenalties mentioned in an indeterminate
sentence. It must be emphasized that the provisions on the inclusion of accessory penalties
specifically allude to the actual "penalty"73 imposed, not to the "prison sentence"74 set by a court.
We believe that the ISL did not intend to have the effect of imposing on the convict two distinct sets of
accessory penalties for the same offense.75 The two penalties are only relevant insofar as setting the
 19

minimum imprisonment period is concerned, after which the convict may apply for parole and
eventually seek the shortening of the prison term.76

Under Article 365 of the Revised Penal Code, the prescribed penalty for the crime of reckless
imprudence resulting in homicide is arresto mayor in its maximum period to prisión correccionalin its
medium period. As this provision grants courts the discretion tolay down a penalty without regard to
the presence of mitigating and aggravating circumstances, the imposable penaltymust also be within
the aforementioned range.77 Hence, before applying the ISL, we ultimately imposed on Dizon and
Tecson et al. the actual (straight) penalty78 of four years and two months of prisión correccional.79
Pursuant to Article 43 of the Revised Penal Code, the penalty of prisión correccional automatically
carries with it80 the following accessory penalties: ARTICLE 43. Prisión Correccional— Its accessory
penalties. — The penalty of prisión correccional shall carry with it that of suspension from public
office, from the right tofollow a profession or calling, and that of perpetual special disqualification from
the right of suffrage, if the duration of said imprisonment shall exceed eighteen months. The offender
shall suffer the disqualification provided in this article although pardoned as to the principal penalty,
unless the same shall have been expressly remitted in the pardon.

The duration of their suspension shall be the same as that of their principal penalty sans the ISL; that
is, for four years and two months81 or until they have served their sentence in accordance with law.
Their suspension takes effect immediately, once the judgment of conviction becomes final.82

We further point out that if the length of their imprisonment exceeds 18 months, they shall furthermore
suffer a perpetual special disqualification from the right of suffrage. Under Article 32 of the
RevisedPenal Code, if this accessory penalty attaches, it shall forever deprive them of the exercise of
their right (a) to vote in any popular election for any public office; (b) to be elected to that office; and
(c) to hold any public office.83 Any public office that they may be holding becomes vacant upon
finality of the judgment.84 The aforementioned accessory penalties can only be wiped out if expressly
remitted in a pardon.85

Of course, the aforementioned accessory penalties are without prejudice to a grant of probation,
shouldthe trial court find them eligible therefor. As we explained in Baclayon,86 the grant of probation
suspends the execution of the principal penalty of imprisonment, as well as that of the accessory
penalties. We have reiterated this point in Moreno v. Commission on Elections:87

In Baclayon v. Mutia, the Court declared that an order placing defendant on probation is not a
sentence but is rather, in effect, a suspension of the imposition of sentence. We held that the grant of
probation to petitioner suspended the imposition of the principal penalty of imprisonment, as well as
the accessory penalties of suspension from public office and from the right to follow a profession or
calling, and that of perpetual special disqualification from the right of suffrage. We thus deleted from
the order granting probation the paragraph which required that petitioner refrain from continuing with
her teaching profession.

Applying this doctrine to the instant case, the accessory penalties of suspension from public office,
from the right to follow a profession or calling, and that of perpetual special disqualification from the
right of suffrage, attendant to the penalty of arresto mayor in its maximum period to prision
correccional in its minimum period imposed upon Moreno were similarly suspended upon the grant of
probation.

It appears then that during the period of probation, the probationer is not even disqualified from
running for a public office because the accessory penalty of suspension from public office is put on
hold for the duration of the probation. x x x x. During the period of probation, the probationer does not
 20

serve the penalty imposed upon him by the court but is merely required to comply with all the
conditions prescribed in the probation order.

WHEREFORE, premises considered, the Motion for Partial Reconsideration of petitioner Gerarda H.
Villa in connection with G.R. Nos. 178057 & 178080 is hereby DENIED. The Motion for
Reconsideration filed by the Office of the Solicitor General concerning G.R. Nos. 155101 and 154954
is also DENIED.

The respective Motions for Clarification or Reconsideration of Antonio Mariano Almeda, Junel
Anthony D. Arna, Renato Bantug, Jr., and Vincent Tecson are likewise DENIED. In light of the finding
that Caloocan City Regional Trial Court Branch 130 acted without or in excess of its jurisdiction in
taking cognizance of the aforementioned Applications for Probation, we hereby ANNUL the entire
probation proceedings and SET ASIDE all orders, resolutions, or judgments issued in connection
thereto. We, however, CLARIFY that Antonio Mariano Almeda, Junel Anthony D. Arna, Renato
Bantug, Jr., Vincent Tecson, and Fidelito Dizon are eligible to apply or reapply for probation in view of
our recent ruling in Colinares v. People of the Philippines,88 without prejudice to their remaining civil
liability, if any.

Furthermore, we issue a CORRECTION of the dispositive portion of our Decision dated 1 February
2012 and hereby delete the phrase "and one (1) day" located in the fourth sentence of the first
paragraph thereof. The sentence shall now read as follows: "They are hereby sentenced to suffer an
indeterminate prison term of four (4) months of arresto mayor, as minimum, to four (4) years and two
(2) months of prisi6n correccional, as maximum."

SO ORDERED.
 21

G.R. No. 96132 June 26, 1992

ORIEL MAGNO, petitioner,

vs.
HONORABLE COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.

PARAS, J.:

This is an appeal by certiorari under Rule 45 of the Revised Rules of Court, from the decision* of the
respondent Court of Appeals which affirmed in toto the decision of the Regional Trial Court of Quezon
City, Branch 104 finding the accused petitioner, guilty of violations of Batas Pambansa Blg. 22, in
Criminal Cases Q-35693 to 35696 before they were elevated on appeal to the respondent appellate
Court under CA-G.R. CR No. 04889.

The antecedent facts and circumstances of the four (4) counts of the offense charged, have been
clearly illustrated, in the Comment of the Office of the Solicitor General as official counsel for the
public respondent, thus:

Petitioner was in the process of putting up a car repair shop sometime in April 1983, but a did not
have complete equipment that could make his venture workable. He also had another problem, and
that while he was going into this entrepreneurship, he lacked funds with which to purchase the
necessary equipment to make such business operational. Thus, petitioner, representing Ultra
Sources International Corporation, approached Corazon Teng, (private complainant) Vice President
of Mancor Industries (hereinafter referred to as Mancor) for his needed car repair service equipment
of which Mancor was a distributor, (Rollo, pp. 40-41)

Having been approached by petitioner on his predicament, who fully bared that he had no sufficient
funds to buy the equipment needed, the former (Corazon Teng) referred Magno to LS Finance and
Management Corporation (LB Finance for brevity) advising its Vice-President, Joey Gomez, that
Mancor was willing and able to supply the pieces of equipment needed if LS Finance could
accommodate petitioner and provide him credit facilities. (Ibid., P. 41)

The arrangement went through on condition that petitioner has to put up a warranty deposit
equivalent to thirty per centum (30%) of the total value of the pieces of equipment to be purchased,
amounting to P29,790.00. Since petitioner could not come up with such amount, he requested Joey
Gomez on a personal level to look for a third party who could lend him the equivalent amount of the
warranty deposit, however, unknown to petitioner, it was Corazon Teng who advanced the deposit in
question, on condition that the same would be paid as a short term loan at 3% interest (Ibid., P. 41)

The specific provision in the Leasing Agreement, reads:

1.1. WARRANTY DEPOSIT — Before or upon delivery of each item of Equipment, the
Lessee shall deposit with the Lessor such sum or sums specified in Schedule A to serve
as security for the faithful performance of its obligations.

This deposit shall be refunded to the Lessee upon the satisfactory completion of the
entire period of Lease, subject to the conditions of clause 1.12 of this Article. (Ibid., p.
17)

As part of the arrangement, petitioner and LS Finance entered into a leasing agreement whereby LS
Finance would lease the garage equipments and petitioner would pay the corresponding rent with the
option to buy the same. After the documentation was completed, the equipment were delivered to
 22

petitioner who in turn issued a postdated check and gave it to Joey Gomez who, unknown to the
petitioner, delivered the same to Corazon Teng. When the check matured, Petitioner requested
through Joey Gomez not to deposit the check as he (Magno) was no longer banking with Pacific
Bank.

To replace the first check issued, petitioner issued another set of six (6) postdated checks. Two (2)
checks dated July 29, 1983 were deposited and cleared while the four (4) others, which were the
subject of the four counts of the aforestated charges subject of the petition, were held momentarily by
Corazon Teng, on the request of Magno as they were not covered with sufficient funds. These checks
were a) Piso Bank Check Nos. 006858, dated August 15, 1983, 006859 dated August 28, 1983 and
006860 dated September 15, 1983, all in the amount of P5,038.43 and No. 006861 dated September
28, 1983, in the amount of P10,076.87. (Ibid., pp. 42 & 43).

Subsequently, petitioner could not pay LS Finance the monthly rentals, thus it pulled out the garage
equipments. It was then on this occasion that petitioner became aware that Corazon Teng was the
one who advanced the warranty deposit. Petitioner with his wife went to see Corazon Teng and
promised to pay the latter but the payment never came and when the four (4) checks were deposited
they were returned for the reason "account closed." (Ibid., p. 43)

After joint trial before the Regional Trial Court of Quezon City, Branch 104, the accused-petitioner
was convicted for violations of BP Blg. 22 on the four (4) cases, as follows:

. . . finding the accused-appellant guilty beyond reasonable doubt of the offense of

violations of B.P. Blg. 22 and sentencing the accused to imprisonment for one year in
each Criminal Case Nos. Q-35693, Q-35695 and Q-35696 and to pay to complainant
the respective amounts reflected in subject checks. (Ibid., pp. 25, 27)

Reviewing the above and the affirmation of the above-stated decision of the court a quo, this Court is
intrigued about the outcome of the checks subject of the cases which were intended by the parties,
the petitioner on the one hand and the private complainant on the other, to cover the "warranty
deposit" equivalent to the 30% requirement of the financing company. Corazon Teng is one of the
officers of Mancor, the supplier of the equipment subject of the Leasing Agreement subject of the high
financing scheme undertaken by the petitioner as lessee of the repair service equipment, which was
arranged at the instance of Mrs. Teng from the very beginning of the transaction.

By the nature of the "warranty deposit" amounting to P29,790.00 corresponding to 30% of the
"purchase/lease" value of the equipments subject of the transaction, it is obvious that the "cash out"
made by Mrs. Teng was not used by petitioner who was just paying rentals for the equipment. It
would have been different if petitioner opted to purchase the pieces of equipment on or about the
termination of the lease-purchase agreement in which case he had to pay the additional amount of
the warranty deposit which should have formed part of the purchase price. As the transaction did not
ripen into a purchase, but remained a lease with rentals being paid for the loaned equipment, which
were pulled out by the Lessor (Mancor) when the petitioner failed to continue paying possibly due to
economic constraints or business failure, then it is lawful and just that the warranty deposit should not
be charged against the petitioner.

To charge the petitioner for the refund of a "warranty deposit" which he did not withdraw as it was not
his own account, it having remained with LS Finance, is to even make him pay an unjust "debt", to
say the least, since petitioner did not receive the amount in question. All the while, said amount was
in the safekeeping of the financing company, which is managed, supervised and operated by the
corporation officials and employees of LS Finance. Petitioner did not even know that the checks he
issued were turned over by Joey Gomez to Mrs. Teng, whose operation was kept from his knowledge
 23

on her instruction. This fact alone evoke suspicion that the transaction is irregular and immoral per se,
hence, she specifically requested Gomez not to divulge the source of the "warranty deposit".

It is intriguing to realize that Mrs. Teng did not want the petitioner to know that it was she who
"accommodated" petitioner's request for Joey Gomez, to source out the needed funds for the
"warranty deposit". Thus it unfolds the kind of transaction that is shrouded with mystery, gimmickry
and doubtful legality. It is in simple language, a scheme whereby Mrs. Teng as the supplier of the
equipment in the name of her corporation, Mancor, would be able to "sell or lease" its goods as in this
case, and at the same time, privately financing those who desperately need petty accommodations as
this one. This modus operandi has in so many instances victimized unsuspecting businessmen, who
likewise need protection from the law, by availing of the deceptively called "warranty deposit" not
realizing that they also fall prey to leasing equipment under the guise of a lease-purchase agreement
when it is a scheme designed to skim off business clients.

This maneuvering has serious implications especially with respect to the threat of the penal sanction
of the law in issue, as in this case. And, with a willing court system to apply the full harshness of the
special law in question, using the "mala prohibitia" doctrine, the noble objective of the law is tainted
with materialism and opportunism in the highest, degree.

This angle is bolstered by the fact that since the petitioner or lessee referred to above in the lease
agreement knew that the amount of P29,790.00 subject of the cases, were mere accommodation-
arrangements with somebody thru Joey Gomez, petitioner did not even attempt to secure the refund
of said amount from LS Finance, notwithstanding the agreement provision to the contrary. To argue
that after the termination of the lease agreement, the warranty deposit should be refundable in full to
Mrs. Teng by petitioner when he did not cash out the "warranty deposit" for his official or personal
use, is to stretch the nicety of the alleged law (B.P. No, 22) violated.

For all intents and purposes, the law was devised to safeguard the interest of the banking system and
the legitimate public checking account user. It did not intend to shelter or favor nor encourage users
of the system to enrich themselves through manipulations and circumvention of the noble purpose
and objective of the law. Least should it be used also as a means of jeopardizing honest-to-goodness
transactions with some color of "get-rich" scheme to the prejudice of well-meaning businessmen who
are the pillars of society.

Under the utilitarian theory, the "protective theory" in criminal law, "affirms that the primary function of
punishment is the protective (sic) of society against actual and potential wrongdoers." It is not clear
whether petitioner could be considered as having actually committed the wrong sought to be
punished in the offense charged, but on the other hand, it can be safely said that the actuations of
Mrs. Carolina Teng amount to that of potential wrongdoers whose operations should also be clipped
at some point in time in order that the unwary public will not be failing prey to such a vicious
transaction (Aquino, The Revised Penal Code, 1987 Edition, Vol. I, P. 11)

Corollary to the above view, is the application of the theory that "criminal law is founded upon that
moral disapprobation . . . of actions which are immoral, i.e., which are detrimental (or dangerous) to
those conditions upon which depend the existence and progress of human society. This
disappropriation is inevitable to the extent that morality is generally founded and built upon a certain
concurrence in the moral opinions of all. . . . That which we call punishment is only an external means
of emphasizing moral disapprobation the method of punishment is in reality the amount of
punishment," (Ibid., P. 11, citing People v. Roldan Zaballero, CA 54 O.G. 6904, Note also Justice
Pablo's view in People v. Piosca and Peremne, 86 Phil. 31).
 24

Thus, it behooves upon a court of law that in applying the punishment imposed upon the accused, the
objective of retribution of a wronged society, should be directed against the "actual and potential
wrongdoers." In the instant case, there is no doubt that petitioner's four (4) checks were used to
collateralize an accommodation, and not to cover the receipt of an actual "account or credit for value"
as this was absent, and therefore petitioner should not be punished for mere issuance of the checks
in question. Following the aforecited theory, in petitioner's stead the "potential wrongdoer", whose
operation could be a menace to society, should not be glorified by convicting the petitioner.

While in case of doubt, the case should have been resolved in favor of the accused, however, by the
open admission of the appellate court below, oven when the ultimate beneficiary of the "warranty
deposit" is of doubtful certainty, the accused was convicted, as shown below:

Nor do We see any merit in appellant's claim that the obligation of the accused to
complainant had been extinguished by the termination of the leasing agreement — by
the terms of which the warranty deposit advanced by complainant was refundable to the
accused as lessee — and that as the lessor L.S. Finance neither made any liquidation
of said amount nor returned the same to the accused, it may he assumed that the
amount was already returned to the complainant. For these allegations, even if true, do
not change the fact, admitted by appellant and established by the evidence, that the
four checks were originally issued on account or for value. And as We have already
observed, in order that there may be a conviction under the from paragraph of Section 2
of B.P. Blg 22 — with respect to the element of said offense that the check should have
been made and issued on account or for value — it is sufficient, all the other elements
of the offense being present, that the check must have been drawn and issued in
payment of an obligation.

Moreover, even granting, arguendo, that the extinguishment, after the issuance of the
checks, of the obligation in consideration of which the checks were issued, would have
resulted in placing the case at bar beyond the purview of the prohibition in Section 1 of
BP Blg. 22, there is no satisfactory proof that there was such an extinguishment in the
present case. Appellee aptly points out that appellant had not adduced any direct
evidence to prove that the amount advanced by the complainant to cover the warranty
deposit must already have been returned to her. (Rollo, p. 30)

It is indubitable that the respondent Court of Appeals even disregarded the cardinal rule that the
accused is presumed innocent until proven guilty beyond reasonable doubt. On the contrary, the
same court even expected the petitioner-appellant to adduce evidence to show that he was not guilty
of the crime charged. But how can be produce documents showing that the warranty deposit has
already been taken back by Mrs. Teng when she is an officer of Mancor which has interest in the
transaction, besides being personally interested in the profit of her side-line. Thus, even if she may
have gotten back the value of the accommodation, she would still pursue collecting from the petitioner
since she had in her possession the checks that "bounced".

That the court a quo merely relied on the law, without looking into the real nature of the warranty
deposit is evident from the following pronouncement:

And the trail court concluded that there is no question that the accused violated BP Blg.
22, which is a special statutory law, violations of which are mala prohibita. The court
relied on the rule that in cases of mala prohibita, the only inquiry is whether or not the
law had been violated, proof of criminal intent not being necessary for the conviction of
the accused, the acts being prohibited for reasons of public policy and the defenses of
 25

good faith and absence of criminal intent being unavailing in prosecutions for said
offenses." (Ibid., p. 26)

The crux of the matter rests upon the reason for the drawing of the postdated checks by the
petitioner, i.e., whether they were drawn or issued "to apply on account or for value", as required
under Section 1 of B.P. Blg, 22. When viewed against the following definitions of the catch-terms
"warranty" and "deposit", for which the postdated checks were issued or drawn, all the more, the
alleged crime could not have been committed by petitioner:

a) Warranty — A promise that a proposition of fact is true. A promise that certain facts
are truly as they are represented to be and that they will remain so: . . . (Black's Law
Dictionary, Fifth Edition, (1979) p. 1423)

A cross-reference to the following term shows:

Fitness for Particular Purpose: —

Where the seller at the time of contracting has reason to know any particular purpose
for which the goods are required and that the buyer is relying on the seller's skill or
judgment to select or furnish suitable goods, there is, unless excluded or modified, an
implied warranty that the goods shall be fit for such purpose, (Ibid., p. 573)

b) Deposit: — Money lodged with a person as an earnest or security for the

performance of some contract, to be forfeited if the depositor fails in his undertaking. It
may be deemed to be part payment and to that extent may constitute the purchaser the
actual owner of the estate.

To commit to custody, or to lay down; to place; to put. To lodge for safe- keeping or as a
pledge to intrust to the care of another.

The act of placing money in the custody of a bank or banker, for safety or convenience,
to be withdrawn at the will of the depositor or under rules and regulations agreed on.
Also, the money so deposited, or the credit which the depositor receives for it. Deposit,
according to its commonly accepted and generally understood among bankers and by
the public, includes not only deposits payable on demand and for which certificates,
whether interest-bearing or not, may be issued, payable on demand, or on certain
notice or at a fixed future time. (Ibid., pp. 394-395)

Furthermore, the element of "knowing at the time of issue that he does not have sufficient funds in or
credit with the drawee bank for the payment of such check in full upon its presentment, which check
is subsequently dishonored by the drawee bank for insufficiency of funds or credit or would have
been dishonored for the same reason . . . is inversely applied in this case. From the very beginning,
petitioner never hid the fact that he did not have the funds with which to put up the warranty deposit
and as a matter of fact, he openly intimated this to the vital conduit of the transaction, Joey Gomez, to
whom petitioner was introduced by Mrs. Teng. It would have been different if this predicament was
not communicated to all the parties he dealt with regarding the lease agreement the financing of
which was covered by L.S. Finance Management.

WHEREFORE, the appealed decision is REVERSED and the accused-petitioner is hereby

ACQUITTED of the crime charged.

SO ORDERED.
 26

G.R. No. 125865 January 28, 2000

JEFFREY LIANG (HUEFENG), petitioner,

vs.
PEOPLE OF THE PHILIPPINES, respondent.

YNARES-SANTIAGO, J.:

Petitioner is an economist working with the Asian Development Bank (ADB). Sometime in 1994, for
allegedly uttering defamatory words against fellow ADB worker Joyce Cabal, he was charged before
the Metropolitan Trial Court (MeTC) of Mandaluyong City with two counts of grave oral defamation
docketed as Criminal Cases Nos. 53170 and 53171. Petitioner was arrested by virtue of a warrant
issued by the MeTC. After fixing petitioner's bail at P2,400.00 per criminal charge, the MeTC released
him to the custody of the Security Officer of ADB. The next day, the MeTC judge received an "office
of protocol" from the Department of Foreign Affairs (DFA) stating that petitioner is covered by
immunity from legal process under Section 45 of the Agreement between the ADB and the Philippine
Government regarding the Headquarters of the ADB (hereinafter Agreement) in the country. Based
on the said protocol communication that petitioner is immune from suit, the MeTC judge without
notice to the prosecution dismissed the two criminal cases. The latter filed a motion for
reconsideration which was opposed by the DFA. When its motion was denied, the prosecution filed a
petition for certiorari and mandamus with the Regional Trial Court (RTC) of Pasig City which set aside
the MeTC rulings and ordered the latter court to enforce the warrant of arrest it earlier issued. After
the motion for reconsideration was denied, petitioner elevated the case to this Court via a petition for
review arguing that he is covered by immunity under the Agreement and that no preliminary
investigation was held before the criminal cases were filed in court.1âwphi1.nêt

The petition is not impressed with merit.

First, courts cannot blindly adhere and take on its face the communication from the DFA that
petitioner is covered by any immunity. The DFA's determination that a certain person is covered by
immunity is only preliminary which has no binding effect in courts. In receiving ex-parte the DFA's
advice and in motu propio dismissing the two criminal cases without notice to the prosecution, the
latter's right to due process was violated. It should be noted that due process is a right of the accused
as much as it is of the prosecution. The needed inquiry in what capacity petitioner was acting at the
time of the alleged utterances requires for its resolution evidentiary basis that has yet to be presented
at the proper time.1 At any rate, it has been ruled that the mere invocation of the immunity clause
does not ipso facto result in the dropping of the charges.2

Second, under Section 45 of the Agreement which provides:

Officers and staff of the Bank including for the purpose of this Article experts and consultants
performing missions for the Bank shall enjoy the following privileges and immunities:

a.) immunity from legal process with respect to acts performed by them in their official
capacity except when the Bank waives the immunity.

the immunity mentioned therein is not absolute, but subject to the exception that the acts was done in
"official capacity." It is therefore necessary to determine if petitioner's case falls within the ambit of
Section 45(a). Thus, the prosecution should have been given the chance to rebut the DFA protocol
and it must be accorded the opportunity to present its controverting evidence, should it so desire.
 27

Third, slandering a person could not possibly be covered by the immunity agreement because our
laws do not allow the commission of a crime, such as defamation, in the name of official duty.3 The
imputation of theft is ultra vires and cannot be part of official functions. It is well-settled principle of law
that a public official may be liable in his personal private capacity for whatever damage he may have
caused by his act done with malice or in bad faith or beyond the scope of his authority or jurisdiction.4
It appears that even the government's chief legal counsel, the Solicitor General, does not support the
stand taken by petitioner and that of the DFA.

Fourth, under the Vienna Convention on Diplomatic Relations, a diplomatic agent, assuming
petitioner is such, enjoys immunity from criminal jurisdiction of the receiving state except in the case
of an action relating to any professional or commercial activity exercised by the diplomatic agent in
the receiving state outside his official functions.5 As already mentioned above, the commission of a
crime is not part of official duty.

Finally, on the contention that there was no preliminary investigation conducted, suffice it to say that
preliminary investigation is not a matter of right in cases cognizable by the MeTC such as the one at
bar.6 Being purely a statutory right, preliminary investigation may be invoked only when specifically
granted by law.7 The rule on the criminal procedure is clear that no preliminary investigation is
required in cases falling within the jurisdiction of the MeTC.8 Besides the absence of preliminary
investigation does not affect the court's jurisdiction nor does it impair the validity of the information or
otherwise render it defective.9

WHEREFORE, the petition is DENIED.

SO ORDERED.1âwphi1.nêt
 28

G.R. No. 17958 February 27, 1922

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
LOL-LO and SARAW, defendants-appellants.

Thos. D. Aitken for appellants.

Acting Attorney-General Tuason for appellee.

MALCOLM, J.:

The days when pirates roamed the seas, when picturesque buccaneers like Captain Avery and
Captain Kidd and Bartholomew Roberts gripped the imagination, when grostesque brutes like
Blackbeard flourished, seem far away in the pages of history and romance. Nevertheless, the record
before us tells a tale of twentieth century piracy in the south seas, but stripped of all touches of
chivalry or of generosity, so as to present a horrible case of rapine and near murder.

On or about June 30, 1920, two boats left matuta, a Dutch possession, for Peta, another Dutch
possession. In one of the boats was one individual, a Dutch subject, and in the other boat eleven
men, women, and children, likewise subjects of Holland. After a number of days of navigation, at
about 7 o'clock in the evening, the second boat arrived between the Islands of Buang and Bukid in
the Dutch East Indies. There the boat was surrounded by six vintas manned by twenty-four Moros all
armed. The Moros first asked for food, but once on the Dutch boat, too for themselves all of the
cargo, attacked some of the men, and brutally violated two of the women by methods too horrible to
the described. All of the persons on the Dutch boat, with the exception of the two young women, were
again placed on it and holes were made in it, the idea that it would submerge, although as a matter of
fact, these people, after eleven days of hardship and privation, were succored violating them, the
Moros finally arrived at Maruro, a Dutch possession. Two of the Moro marauder were Lol-lo, who also
raped one of the women, and Saraw. At Maruro the two women were able to escape.

Lol-lo and Saraw later returned to their home in South Ubian, Tawi-Tawi, Sulu, Philippine Islands.
There they were arrested and were charged in the Court of First Instance of Sulu with the crime of
piracy. A demurrer was interposed by counsel de officio for the Moros, based on the grounds that the
offense charged was not within the jurisdiction of the Court of First Instance, nor of any court of the
Philippine Islands, and that the facts did not constitute a public offense, under the laws in force in the
Philippine Islands. After the demurrer was overruled by the trial judge, trial was had, and a judgment
was rendered finding the two defendants guilty and sentencing each of them to life imprisonment
(cadena perpetua), to return together with Kinawalang and Maulanis, defendants in another case, to
the offended parties, the thirty-nine sacks of copras which had been robbed, or to indemnify them in
the amount of 924 rupees, and to pay a one-half part of the costs.

A very learned and exhaustive brief has been filed in this court by the attorney de officio. By a
process of elimination, however, certain questions can be quickly disposed of.

The proven facts are not disputed. All of the elements of the crime of piracy are present. Piracy is
robbery or forcible depredation on the high seas, without lawful authority and done animo furandi, and
in the spirit and intention of universal hostility.

It cannot be contended with any degree of force as was done in the lover court and as is again done
in this court, that the Court of First Instance was without jurisdiction of the case. Pirates are in law
hostes humani generis. Piracy is a crime not against any particular state but against all mankind. It
may be punished in the competent tribunal of any country where the offender may be found or into
 29

which he may be carried. The jurisdiction of piracy unlike all other crimes has no territorial limits. As it
is against all so may it be punished by all. Nor does it matter that the crime was committed within the
jurisdictional 3-mile limit of a foreign state, "for those limits, though neutral to war, are not neutral to
crimes." (U.S. vs. Furlong [1820], 5 Wheat., 184.)

The most serious question which is squarely presented to this court for decision for the first time is
whether or not the provisions of the Penal Code dealing with the crime of piracy are still in force.
Article 153 to 156 of the Penal Code reads as follows:

ART. 153. The crime of piracy committed against Spaniards, or the subjects of another nation
not at war with Spain, shall be punished with a penalty ranging from cadena temporal to
cadena perpetua.

If the crime be committed against nonbelligerent subjects of another nation at war with Spain, it
shall be punished with the penalty of presidio mayor.

ART. 154. Those who commit the crimes referred to in the first paragraph of the next
preceding article shall suffer the penalty of cadena perpetua or death, and those who commit
the crimes referred to in the second paragraph of the same article, from cadena temporal to
cadena perpetua:

1. Whenever they have seized some vessel by boarding or firing upon the same.

2. Whenever the crime is accompanied by murder, homicide, or by any of the physical

injuries specified in articles four hundred and fourteen and four hundred and fifteen and
in paragraphs one and two of article four hundred and sixteen.

3. Whenever it is accompanied by any of the offenses against chastity specified in

Chapter II, Title IX, of this book.

4. Whenever the pirates have abandoned any persons without means of saving
themselves.

5. In every case, the captain or skipper of the pirates.

ART. 155. With respect to the provisions of this title, as well as all others of this code, when
Spain is mentioned it shall be understood as including any part of the national territory.

ART. 156. For the purpose of applying the provisions of this code, every person, who,
according to the Constitution of the Monarchy, has the status of a Spaniard shall be
considered as such.

The general rules of public law recognized and acted on by the United States relating to the effect of
a transfer of territory from another State to the United States are well-known. The political law of the
former sovereignty is necessarily changed. The municipal law in so far as it is consistent with the
Constitution, the laws of the United States, or the characteristics and institutions of the government,
remains in force. As a corollary to the main rules, laws subsisting at the time of transfer, designed to
secure good order and peace in the community, which are strictly of a municipal character, continue
until by direct action of the new government they are altered or repealed. (Chicago, Rock Islands,
etc., R. Co. vs. McGlinn [1885], 114 U.S., 542.)
 30

These principles of the public law were given specific application to the Philippines by the Instructions
of President McKinley of May 19, 1898, to General Wesley Meritt, the Commanding General of the
Army of Occupation in the Philippines, when he said:

Though the powers of the military occupant are absolute and supreme, and immediately
operate upon the political condition of the inhabitants, the municipal laws of the conquered
territory, such as affect private rights of person and property, and provide for the punishment of
crime, are considered as continuing in force, so far as they are compatible with the new order
of things, until they are suspended or superseded by the occupying belligerent; and practice
they are not usually abrogated, but are allowed to remain in force, and to be administered by
the ordinary tribunals, substantially as they were before the occupations. This enlightened
practice is so far as possible, to be adhered to on the present occasion. (Official Gazette,
Preliminary Number, Jan. 1, 1903, p. 1. See also General Merritt Proclamation of August 14,
1898.)

It cannot admit of doubt that the articles of the Spanish Penal Code dealing with piracy were meant to
include the Philippine Islands. Article 156 of the Penal Code in relation to article 1 of the Constitution
of the Spanish Monarchy, would also make the provisions of the Code applicable not only to
Spaniards but to Filipinos.

The opinion of Grotius was that piracy by the law of nations is the same thing as piracy by the civil
law, and he has never been disputed. The specific provisions of the Penal Code are similar in tenor to
statutory provisions elsewhere and to the concepts of the public law. This must necessarily be so,
considering that the Penal Code finds its inspiration in this respect in the Novelas, the Partidas, and
the Novisima Recopilacion.

The Constitution of the United States declares that the Congress shall have the power to define and
punish piracies and felonies committed on the high seas, and offenses against the law of nations.
(U.S. Const. Art. I, sec. 8, cl. 10.) The Congress, in putting on the statute books the necessary
ancillary legislation, provided that whoever, on the high seas, commits the crime of piracy as defined
by the law of nations, and is afterwards brought into or found in the United States, shall be imprisoned
for life. (U.S. Crim. Code, sec. 290; penalty formerly death: U.S. Rev. Stat., sec. 5368.) The framers
of the Constitution and the members of Congress were content to let a definition of piracy rest on its
universal conception under the law of nations.

It is evident that the provisions of the Penal Code now in force in the Philippines relating to piracy are
not inconsistent with the corresponding provisions in force in the United States.

By the Treaty of Paris, Spain ceded the Philippine Islands to the United States. A logical construction
of articles of the Penal Code, like the articles dealing with the crime of piracy, would be that wherever
"Spain" is mentioned, it should be substituted by the words "United States" and wherever "Spaniards"
are mentioned, the word should be substituted by the expression "citizens of the United States and
citizens of the Philippine Islands." somewhat similar reasoning led this court in the case of United
States vs. Smith ([1919], 39 Phil., 533) to give to the word "authority" as found in the Penal Code a
limited meaning, which would no longer comprehend all religious, military, and civil officers, but only
public officers in the Government of the Philippine Islands.

Under the construction above indicated, article 153 of the Penal Code would read as follows:

The crime of piracy committed against citizens of the United States and citizens of the
Philippine Islands, or the subjects of another nation not at war with the United States, shall be
punished with a penalty ranging from cadena temporal to cadena perpetua.
 31

If the crime be committed against nonbelligerent subjects of another nation at war with the
United States, it shall be punished with the penalty of presidio mayor.

We hold those provisions of the Penal code dealing with the crime of piracy, notably articles 153 and
154, to be still in force in the Philippines.

The crime falls under the first paragraph of article 153 of the Penal Code in relation to article 154.
There are present at least two of the circumstances named in the last cited article as authorizing
either cadena perpetua or death. The crime of piracy was accompanied by (1) an offense against
chastity and (2) the abandonment of persons without apparent means of saving themselves. It is,
therefore, only necessary for us to determine as to whether the penalty of cadena perpetua or death
should be imposed. In this connection, the trial court, finding present the one aggravating
circumstance of nocturnity, and compensating the same by the one mitigating circumstance of lack of
instruction provided by article 11, as amended, of the Penal Code, sentenced the accused to life
imprisonment. At least three aggravating circumstances, that the wrong done in the commission of
the crime was deliberately augmented by causing other wrongs not necessary for its commission, that
advantage was taken of superior strength, and that means were employed which added ignominy to
the natural effects of the act, must also be taken into consideration in fixing the penalty. Considering,
therefore, the number and importance of the qualifying and aggravating circumstances here present,
which cannot be offset by the sole mitigating circumstance of lack of instruction, and the horrible
nature of the crime committed, it becomes our duty to impose capital punishment.

The vote upon the sentence is unanimous with regard to the propriety of the imposition of the death
penalty upon the defendant and appellant Lo-lo (the accused who raped on of the women), but is not
unanimous with regard to the court, Mr. Justice Romualdez, registers his nonconformity. In
accordance with provisions of Act No. 2726, it results, therefore, that the judgment of the trial court as
to the defendant and appellant Saraw is affirmed, and is reversed as to the defendant and appellant
Lol-lo, who is found guilty of the crime of piracy and is sentenced therefor to be hung until dead, at
such time and place as shall be fixed by the judge of first instance of the Twenty-sixth Judicial District.
The two appellants together with Kinawalang and Maulanis, defendants in another case, shall
indemnify jointly and severally the offended parties in the equivalent of 924 rupees, and shall pay a
one-half part of the costs of both instances. So ordered.
 32

G.R. No. 111709 August 30, 2001

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ROGER P. TULIN, VIRGILIO I. LOYOLA, CECILIO O. CHANGCO, ANDRES C. INFANTE,
CHEONG SAN HIONG, and JOHN DOES, accused-appellants.

MELO, J.:

This is one of the older cases which unfortunately has remained in docket of the Court for sometime.
It was reassigned, together with other similar cases, to undersigned ponente in pursuance of A.M.
No. 00-9-03-SC dated February 27, 2001.

In the evening of March 2, 1991, "M/T Tabangao," a cargo vessel owned by the PNOC Shipping and
Transport Corporation, loaded with 2,000 barrels of kerosene, 2,600 barrels of regular gasoline, and
40,000 barrels of diesel oil, with a total value of P40,426,793,87, was sailing off the coast of Mindoro
near Silonay Island.

The vessel, manned by 21 crew members, including Captain Edilberto Libo-on, Second Mate
Christian Torralba, and Operator Isaias Ervas, was suddenly boarded, with the use of an aluminum
ladder, by seven fully armed pirates led by Emilio Changco, older brother of accused-appellant
Cecilio Changco. The pirates, including accused-appellants Tulin, Loyola, and Infante, Jr. were armed
with M-16 rifles, .45 and .38 caliber handguns, and bolos. They detained the crew and took complete
control of the vessel. Thereafter, accused-appellant Loyola ordered three crew members to paint
over, using black paint, the name "M/T Tabangao" on the front and rear portions of the vessel, as well
as the PNOC logo on the chimney of the vessel. The vessel was then painted with the name
"Galilee," with registry at San Lorenzo, Honduras. The crew was forced to sail to Singapore, all the
while sending misleading radio messages to PNOC that the ship was undergoing repairs.

PNOC, after losing radio contact with the vessel, reported the disappearance of the vessel to the
Philippine Coast Guard and secured the assistance of the Philippine Air Force and the Philippine
Navy. However, search and rescue operations yielded negative results. On March 9, 1991, the ship
arrived in the vicinity of Singapore and cruised around the area presumably to await another vessel
which, however, failed to arrive. The pirates were thus forced to return to the Philippines on March 14,
1991, arriving at Calatagan, Batangas on March 20, 1991 where it remained at sea.

On March 28, 1991, the "M/T Tabangao" again sailed to and anchored about 10 to 18 nautical miles
from Singapore's shoreline where another vessel called "Navi Pride" anchored beside it. Emilio
Changco ordered the crew of "M/T Tabangao" to transfer the vessel's cargo to the hold of "Navi
Pride". Accused-appellant Cheong San Hiong supervised the crew of "Navi Pride" in receiving the
cargo. The transfer, after an interruption, with both vessels leaving the area, was completed on March
30, 1991.

On March 30, 1991, "M/T Tabangao" returned to the same area and completed the transfer of cargo
to "Navi Pride."

On April 8, 1991, "M/T Tabangao" arrived at Calatagan, Batangas, but the vessel remained at sea.
On April 10, 1991, the members of the crew were released in three batches with the stern warning not
to report the incident to government authorities for a period of two days or until April 12, 1991,
otherwise they would be killed. The first batch was fetched from the shoreline by a newly painted
passenger jeep driven by accused-appellant Cecilio Changco, brother of Emilio Changco, who
brought them to Imus, Cavite and gave P20,000.00 to Captain Libo-on for fare of the crew in
 33

proceeding to their respective homes. The second batch was fetched by accused-appellant Changco
at midnight of April 10, 1991 and were brought to different places in Metro Manila.

On April 12, 1991, the Chief Engineer, accompanied by the members of the crew, called the PNOC
Shipping and Transport Corporation office to report the incident. The crew members were brought to
the Coast Guard Office for investigation. The incident was also reported to the National Bureau of
Investigation where the officers and members of the crew executed sworn statements regarding the
incident.

A series of arrests was thereafter effected as follows:

a. On May 19, 1991, the NBI received verified information that the pirates were present at U.K.
Beach, Balibago, Calatagan, Batangas. After three days of surveillance, accused-appellant Tulin was
arrested and brought to the NBI headquarters in Manila.

b. Accused-appellants Infante, Jr. and Loyola were arrested by chance at Aguinaldo Hi-way by NBI
agents as the latter were pursuing the mastermind, who managed to evade arrest.

c. On May 20, 1991, accused-appellants Hiong and Changco were arrested at the lobby of Alpha
Hotel in Batangas City.

On October 24, 1991, an Information charging qualified piracy or violation of Presidential Decree No.
532 (Piracy in Philippine Waters) was filed against accused-appellants, as follows:

The undersigned State Prosecutor accuses ROGER P. TULIN, VIRGILIO I. LOYOLA,

CECILIO O. CHANGCO, ANDRES C. INFANTE, and CHEONG SAN HIONG, and nine (9)
other JOHN DOES of qualified piracy (Violation of P.D. No. 532), committed as follows:

That on or about and during the period from March 2 to April 10, 1991, both dates
inclusive, and for sometime prior and subsequent thereto, and within the jurisdiction of
this Honorable Court, the said accused, then manning a motor launch and armed with
high powered guns, conspiring and confederating together and mutually helping one
another, did then and there, wilfully, unlawfully and feloniously fire upon, board and
seize while in the Philippine waters M/T PNOC TABANGCO loaded with petroleum
products, together with the complement and crew members, employing violence against
or intimidation of persons or force upon things, then direct the vessel to proceed to
Singapore where the cargoes were unloaded and thereafter returned to the Philippines
on April 10, 1991, in violation of the aforesaid law.

CONTRARY TO LAW.

(pp. 119-20, Rollo.)

This was docketed as Criminal Case No. 91-94896 before Branch 49 of the Regional Trial Court of
the National Capital Judicial Region stationed in Manila. Upon arraignment, accused-appellants
pleaded not guilty to the charge. Trial thereupon ensued.

Accused-appellants Tulin, Infante, Jr., and Loyola, notwithstanding some inconsistencies in their
testimony as to where they were on March 1, 1991, maintained the defense of denial, and disputed
the charge, as well as the transfer of any cargo from "M/T Tabangao" to the "Navi Pride." All of them
claimed having their own respective sources of livelihood. Their story is to the effect that on March 2,
 34

1991, while they were conversing by the beach, a red speedboat with Captain Edilberto Liboon and
Second Mate Christian Torralba on board, approached the seashore. Captain Liboon inquired from
the three if they wanted to work in a vessel. They were told that the work was light and that each
worker was to be paid P3,000.00 a month with additional compensation if they worked beyond that
period. They agreed even though they had no sea-going experience. On board, they cooked, cleaned
the vessel, prepared coffee, and ran errands for the officers. They denied having gone to Singapore,
claiming that the vessel only went to Batangas. Upon arrival thereat in the morning of March 21,
1991, they were paid P1,000.00 each as salary for nineteen days of work, and were told that the
balance would be remitted to their addresses. There was neither receipt nor contracts of employment
signed by the parties.

Accused-appellant Changco categorically denied the charge, averring that he was at home sleeping
on April 10, 1991. He testified that he is the younger brother of Emilio Changco, Jr.

Accused-appellant Cheong San Hiong, also known as Ramzan Ali, adduced evidence that he studied
in Sydney, Australia, obtaining the "Certificate" as Chief Officer, and later completed the course as a
"Master" of a vessel, working as such for two years on board a vessel. He was employed at Navi
Marine Services, Pte., Ltd. as Port Captain. The company was engaged in the business of trading
petroleum, including shipoil, bunker lube oil, and petroleum to domestic and international markets. It
owned four vessels, one of which was "Navi Pride."

On March 2, 1991, the day before "M/T Tabangao" was seized by Emilio Changco and his cohorts,
Hiong's name was listed in the company's letter to the Mercantile Section of the Maritime Department
of the Singapore government as the radio telephone operator on board the vessel "Ching Ma."

The company was then dealing for the first time with Paul Gan, a Singaporean broker, who offered to
sell to the former bunker oil for the amount of 300,000.00 Singapore dollars. After the company paid
over one-half of the aforesaid amount to Paul Gan, the latter, together with Joseph Ng, Operations
Superintendent of the firm, proceeded to the high seas on board "Navi Pride" but failed to locate the
contact vessel.

The transaction with Paul Gan finally pushed through on March 27, 1991. Hiong, upon his return on
board the vessel "Ching Ma," was assigned to supervise a ship-to-ship transfer of diesel oil off the
port of Singapore, the contact vessel to be designated by Paul Gan. Hiong was ordered to ascertain
the quantity and quality of the oil and was given the amount of 300,000.00 Singapore Dollars for the
purchase. Hiong, together with Paul Gan, and the surveyor William Yao, on board "Navi Pride" sailed
toward a vessel called "M/T Galilee". Hiong was told that "M/T Galilee" would be making the transfer.
Although no inspection of "Navi Pride" was made by the port authorities before departure, Navi
Marine Services, Pte., Ltd. was able to procure a port clearance upon submission of General
Declaration and crew list. Hiong, Paul Gan, and the brokers were not in the crew list submitted and
did not pass through the immigration. The General Declaration falsely reflected that the vessel carried
11,900 tons.

On March 28, 1991, "Navi Pride" reached the location of "M/T Galilee". The brokers then told the
Captain of the vessel to ship-side with "M/T Galilee" and then transfer of the oil transpired. Hiong and
the surveyor William Yao met the Captain of "M/T Galilee," called "Captain Bobby" (who later turned
out to be Emilio Changco). Hiong claimed that he did not ask for the full name of Changco nor did he
ask for the latter's personal card.

Upon completion of the transfer, Hiong took the soundings of the tanks in the "Navi Pride" and took
samples of the cargo. The surveyor prepared the survey report which "Captain Bobby" signed under
the name "Roberto Castillo." Hiong then handed the payment to Paul Gan and William Yao. Upon
 35

arrival at Singapore in the morning of March 29, 1991, Hiong reported the quantity and quality of the
cargo to the company.

Thereafter, Hiong was again asked to supervise another transfer of oil purchased by the firm " from
"M/T Galilee" to "Navi Pride." The same procedure as in the first transfer was observed. This time,
Hiong was told that that there were food and drinks, including beer, purchased by the company for
the crew of "M/T Galilee. The transfer took ten hours and was completed on March 30, 1991. Paul
Gan was paid in full for the transfer.

On April 29 or 30, 1991, Emilio Changco intimated to Hiong that he had four vessels and wanted to
offer its cargo to cargo operators. Hiong was asked to act as a broker or ship agent for the sale of the
cargo in Singapore. Hiong went to the Philippines to discuss the matter with Emilio Changco, who laid
out the details of the new transfer, this time with "M/T Polaris" as contact vessel. Hiong was told that
the vessel was scheduled to arrive at the port of Batangas that weekend. After being billeted at Alpha
Hotel in Batangas City, where Hiong checked in under the name "SONNY CSH." A person by the
name of "KEVIN OCAMPO," who later turned out to be Emilio Changco himself, also checked in at
Alpha Hotel. From accused-appellant Cecilio Changco, Hiong found out that the vessel was not
arriving. Hiong was thereafter arrested by NBI agents.

After trial, a 95-page decision was rendered convicting accused-appellants of the crime charged. The
dispositive portion of said decision reads:

WHEREFORE, in the light of the foregoing considerations, judgment is hereby rendered by

this Court finding the accused Roger Tulin, Virgilio Loyola, Andres Infante, Jr. and Cecilio
Changco guilty beyond reasonable doubt, as principals, of the crime of piracy in Philippine
Waters defined in Section 2(d) of Presidential Decree No. 532 and the accused Cheong San
Hiong, as accomplice, to said crime. Under Section 3(a) of the said law, the penalty for the
principals of said crime is mandatory death. However, considering that, under the 1987
Constitution, the Court cannot impose the death penalty, the accused Roger Tulin, Virgilio
Loyola, Andres Infante, Jr., and Cecilio Changco are hereby each meted the penalty of
RECLUSION PERPETUA, with all the accessory penalties of the law. The accused Cheong
San Hiong is hereby meted the penalty of RECLUSION PERPETUA, pursuant to Article 52 of
the Revised Penal Code in relation to Section 5 of PD 532. The accused Roger Tulin, Virgilio
Loyola, Andres Infante, Jr. and Cecilio Changco are hereby ordered to return to the PNOC
Shipping and Transport Corporation the "M/T Tabangao" or if the accused can no longer return
the same, the said accused are hereby ordered to remit, jointly and severally, to said
corporation the value thereof in the amount of P11,240,000.00, Philippine Currency, with
interests thereon, at the rate of 6% per annum from March 2, 1991 until the said amount is
paid in full. All the accused including Cheong San Hiong are hereby ordered to return to the
Caltex Philippines, Inc. the cargo of the "M/T Tabangao", or if the accused can no longer return
the said cargo to said corporation, all the accused are hereby condemned to pay, jointly and
severally, to the Caltex Refinery, Inc., the value of said cargo in the amount of P40,426,793.87,
Philippine Currency plus interests until said amount is paid in full. After the accused Cheong
San Hiong has served his sentence, he shall be deported to Singapore.

All the accused shall be credited for the full period of their detention at the National Bureau of
Investigation and the City Jail of Manila during the pendency of this case provided that they
agreed in writing to abide by and comply strictly with the rules and regulations of the City Jail of
Manila and the National Bureau of Investigation. With costs against all the accused.

SO ORDERED.
 36

(pp. 149-150, Rollo.)

The matter was then elevated to this Court. The arguments of accused-appellants may be
summarized as follows:

Roger P. Tulin, Virgilio I. Loyola, Andres C. Infante, Jr., and Cecilio O. Changco

Accused-appellants Tulin, Loyola, Infante, Jr., and Cecilio Changco assert that the trial court erred in
allowing them to adopt the proceedings taken during the time they were being represented by Mr.
Tomas Posadas, a non-lawyer, thereby depriving them of their constitutional right to procedural due
process.

In this regard, said accused-appellants narrate that Mr. Posadas entered his appearance as counsel
for all of them. However, in the course of the proceedings, or on February 11, 1992, the trial court
discovered that Mr. Posadas was not a member of the Philippine Bar. This was after Mr. Posadas
had presented and examined seven witnesses for the accused.

Further, accused-appellants Tulin, Loyola, Infante, Cecilio, Changco uniformly contend that during the
custodial investigation, they were subjected to physical violence; were forced to sign statements
without being given the opportunity to read the contents of the same; were denied assistance of
counsel, and were not informed of their rights, in violation of their constitutional rights.

Said accused-appellants also argue that the trial court erred in finding that the prosecution proved
beyond reasonable doubt that they committed the crime of qualified piracy. They allege that the
pirates were outnumbered by the crew who totaled 22 and who were not guarded at all times. The
crew, so these accused-appellants conclude, could have overpowered the alleged pirates.

Cheong San Hiong

In his brief, Cheong argues that: (1) Republic Act No. 7659 in effect obliterated the crime committed
by him; (2) the trial court erred in declaring that the burden is lodged on him to prove by clear and
convincing evidence that he had no knowledge that Emilio Changco and his cohorts attacked and
seized the "M/T Tabangao" and/or that the cargo of the vessel was stolen or the subject of theft or
robbery or piracy; (3) the trial court erred in finding him guilty as an accomplice to the crime of
qualified piracy under Section 4 of Presidential Decree No. 532 (Anti-Piracy and Anti-Robbery Law of
1974); (4) the trial court erred in convicting and punishing him as an accomplice when the acts
allegedly committed by him were done or executed outside of Philippine waters and territory, stripping
the Philippine courts of jurisdiction to hold him for trial, to convict, and sentence; (5) the trial court
erred in making factual conclusions without evidence on record to prove the same and which in fact
are contrary to the evidence adduced during trial; (6) the trial court erred in convicting him as an
accomplice under Section 4 of Presidential Decree No. 532 when he was charged as a principal by
direct participation under said decree, thus violating his constitutional right to be informed of the
nature and cause of the accusation against him.

Cheong also posits that the evidence against the other accused-appellants do not prove any
participation on his part in the commission of the crime of qualified piracy. He further argues that he
had not in any way participated in the seajacking of "M/T Tabangao" and in committing the crime of
qualified piracy, and that he was not aware that the vessel and its cargo were pirated.

As legal basis for his appeal, he explains that he was charged under the information with qualified
piracy as principal under Section 2 of Presidential Decree No. 532 which refers to Philippine waters.
 37

In the case at bar, he argues that he was convicted for acts done outside Philippine waters or
territory. For the State to have criminal jurisdiction, the act must have been committed within its
territory.

We affirm the conviction of all the accused-appellants.

The issues of the instant case may be summarized as follows: (1) what are the legal effects and
implications of the fact that a non-lawyer represented accused-appellants during the trial?; (2) what
are the legal effects and implications of the absence of counsel during the custodial investigation?; (3)
did the trial court err in finding that the prosecution was able to prove beyond reasonable doubt that
accused-appellants committed the crime of qualified piracy?; (4) did Republic Act No. 7659 obliterate
the crime committed by accused-appellant Cheong?; and (5) can accused-appellant Cheong be
convicted as accomplice when he was not charged as such and when the acts allegedly committed
by him were done or executed outside Philippine waters and territory?

On the first issue, the record reveals that a manifestation (Exhibit "20", Record) was executed by
accused-appellants Tulin, Loyola, Changco, and Infante, Jr. on February 11, 1991, stating that they
were adopting the evidence adduced when they were represented by a non-lawyer. Such waiver of
the right to sufficient representation during the trial as covered by the due process clause shall only
be valid if made with the full assistance of a bona fide lawyer. During the trial, accused-appellants, as
represented by Atty. Abdul Basar, made a categorical manifestation that said accused-appellants
were apprised of the nature and legal consequences of the subject manifestation, and that they
voluntarily and intelligently executed the same. They also affirmed the truthfulness of its contents
when asked in open court (tsn, February 11, 1992, pp. 7-59).

It is true that an accused person shall be entitled to be present and to defend himself in person and
by counsel at every stage of the proceedings, from arraignment to promulgation of judgment (Section
1, Rule 115, Revised Rules of Criminal Procedure). This is hinged on the fact that a layman is not
versed on the technicalities of trial. However, it is also provided by law that "[r]ights may be waived,
unless the waiver is contrary to law, public order, public policy, morals, or good customs or prejudicial
to a third person with right recognized by law." (Article 6, Civil Code of the Philippines). Thus, the
same section of Rule 115 adds that "[u]pon motion, the accused may be allowed to defend himself in
person when it sufficiently appears to the court that he can properly protect his rights without the
assistance of counsel." By analogy, but without prejudice to the sanctions imposed by law for the
illegal practice of law, it is amply shown that the rights of accused-appellants were sufficiently and
properly protected by the appearance of Mr. Tomas Posadas. An examination of the record will show
that he knew the technical rules of procedure. Hence, we rule that there was a valid waiver of the
right to sufficient representation during the trial, considering that it was unequivocally, knowingly, and
intelligently made and with the full assistance of a bona fide lawyer, Atty. Abdul Basar. Accordingly,
denial of due process cannot be successfully invoked where a valid waiver of rights has been made
(People vs. Serzo, 274 SCRA 553 [1997]; Sayson vs. People, 166 SCRA 680 [1988]).

However, we must quickly add that the right to counsel during custodial investigation may not be
waived except in writing and in the presence of counsel.

Section 12, Article III of the Constitution reads:

SECTION 12. (1) Any person under investigation for the commission of an offense shall have
the right to be informed of his right to remain silent and to have competent and independent
counsel preferably of his own choice. If the person cannot afford the services of counsel, he
must be provided with one. These rights cannot be waived except in writing and in the
presence of counsel.
 38

(2) No torture, force, violence, threat, intimidation, or any other means which vitiate the free will
shall be used against him. Secret detention places, solitary, incommunicado, or other similar
forms of detention are prohibited.

(3) Any confession or admission obtained in violation of this or Section 17 hereof shall be
inadmissible in evidence against him.

(4) The law shall provide for penal and civil sanctions for violations of this section as well as
compensation to and rehabilitation of victims of torture or similar practices, and their families.

Such rights originated from Miranda v. Arizona (384 U.S. 436 [1966]) which gave birth to the so-called
Miranda doctrine which is to the effect that prior to any questioning during custodial investigation, the
person must be warned that he has a right to remain silent, that any statement he gives may be used
as evidence against him, and that he has the right to the presence of an attorney, either retained or
appointed. The defendant may waive effectuation of these rights, provided the waiver is made
voluntarily, knowingly, and intelligently. The Constitution even adds the more stringent requirement
that the waiver must be in writing and made in the presence of counsel.

Saliently, the absence of counsel during the execution of the so-called confessions of the accused-
appellants make them invalid. In fact, the very basic reading of the Miranda rights was not even
shown in the case at bar. Paragraph [3] of the aforestated Section 12 sets forth the so-called "fruit
from the poisonous tree doctrine," a phrase minted by Mr. Justice Felix Frankfurter in the celebrated
case of Nardone vs. United States (308 U.S. 388 [1939]). According to this rule, once the primary
source (the "tree") is shown to have been unlawfully obtained, any secondary or derivative evidence
(the "fruit") derived from it is also inadmissible. The rule is based on the principle that evidence
illegally obtained by the State should not be used to gain other evidence because the originally
illegally obtained evidence taints all evidence subsequently obtained (People vs. Alicando, 251 SCRA
293 [1995]). Thus, in this case, the uncounselled extrajudicial confessions of accused-appellants,
without a valid waiver of the right to counsel, are inadmissible and whatever information is derived
therefrom shall be regarded as likewise inadmissible in evidence against them.

However, regardless of the inadmissibility of the subject confessions, there is sufficient evidence to
convict accused-appellants with moral certainty. We agree with the sound deduction of the trial court
that indeed, Emilio Changco (Exhibits "U" and "UU") and accused-appellants Tulin, Loyola, and
Infante, Jr. did conspire and confederate to commit the crime charged. In the words of then trial
judge, now Justice Romeo J. Callejo of the Court of Appeals —

. . . The Prosecution presented to the Court an array of witnesses, officers and members of the
crew of the "M/T Tabangao" no less, who identified and pointed to the said Accused as among
those who attacked and seized, the "M/T Tabangao" on March 2, 1991, at about 6:30 o'clock in
the afternoon, off Lubang Island, Mindoro, with its cargo, and brought the said vessel, with its
cargo, and the officers and crew of the vessel, in the vicinity of Horsebough Lighthouse, about
sixty-six nautical miles off the shoreline of Singapore and sold its cargo to the Accused
Cheong San Hiong upon which the cargo was discharged from the "M/T Tabangao" to the
"Navi Pride" for the price of about $500,000.00 (American Dollars) on March 29, and 30, 1991.
..

xxx xxx xxx

The Master, the officers and members of the crew of the "M/T Tabangao" were on board the
vessel with the Accused and their cohorts from March 2, 1991 up to April 10, 1991 or for more
than one (1) month. There can be no scintilla of doubt in the mind of the Court that the officers
 39

and crew of the vessel could and did see and identify the seajackers and their leader. In fact,
immediately after the Accused were taken into custody by the operatives of the National
Bureau of Investigation, Benjamin Suyo, Norberto Senosa, Christian Torralba and Isaias
Wervas executed their "Joint Affidavit" (Exhibit "B") and pointed to and identified the said
Accused as some of the pirates.

xxx xxx xxx

Indeed, when they testified before this Court on their defense, the three (3) Accused admitted
to the Court that they, in fact, boarded the said vessel in the evening of March 2, 1991 and
remained on board when the vessel sailed to its destination, which turned out to be off the port
of Singapore.

(pp. 106-112, Rollo.)

We also agree with the trial court's finding that accused-appellants' defense of denial is not supported
by any hard evidence but their bare testimony. Greater weight is given to the categorical identification
of the accused by the prosecution witnesses than to the accused's plain denial of participation in the
commission of the crime (People v. Baccay, 284 SCRA 296 [1998]). Instead, accused-appellants
Tulin, Loyola, and Infante, Jr. narrated a patently desperate tale that they were hired by three
complete strangers (allegedly Captain Edilberto Liboon, Second Mate Christian Torralba, and their
companion) while said accused-appellants were conversing with one another along the seashore at
Aplaya, Balibago, Calatagan, Batangas, to work on board the "M/T Tabangao" which was then
anchored off-shore. And readily, said accused-appellants agreed to work as cooks and handymen for
an indefinite period of time without even saying goodbye to their families, without even knowing their
destination or the details of their voyage, without the personal effects needed for a long voyage at
sea. Such evidence is incredible and clearly not in accord with human experience. As pointed out by
the trial court, it is incredible that Captain Liboon, Second Mate Torralba, and their companion "had to
leave the vessel at 9:30 o'clock in the evening and venture in a completely unfamiliar place merely to
recruit five (5) cooks or handymen (p. 113, Rollo)."

Anent accused-appellant Changco's defense of denial with the alibi that on May 14 and 17, he was at
his place of work and that on April 10, 1991, he was in his house in Bacoor, Cavite, sleeping, suffice it
to state that alibi is fundamentally and inherently a weak defense, much more so when
uncorroborated by other witnesses (People v. Adora, 275 SCRA 441 [1997]) considering that it is
easy to fabricate and concoct, and difficult to disprove. Accused-appellant must adduce clear and
convincing evidence that, at about midnight on April 10, 1991, it was physically impossible for him to
have been in Calatagan, Batangas. Changco not only failed to do this, he was likewise unable to
prove that he was in his place of work on the dates aforestated.

It is doctrinal that the trial court's evaluation of the credibility of a testimony is accorded the highest
respect, for trial courts have an untrammeled opportunity to observe directly the demeanor of
witnesses and, thus, to determine whether a certain witness is telling the truth (People v. Obello, 284
SCRA 79 [1998]).

We likewise uphold the trial court's finding of conspiracy. A conspiracy exists when two or more
persons come to an agreement concerning the commission of a felony and decide to commit it
(Article 8, Revised Penal Code). To be a conspirator, one need not participate in every detail of
execution; he need not even take part in every act or need not even know the exact part to be
performed by the others in the execution of the conspiracy. As noted by the trial court, there are times
 40

when conspirators are assigned separate and different tasks which may appear unrelated to one
another, but in fact, constitute a whole and collective effort to achieve a common criminal design.

We affirm the trial court's finding that Emilio Changco, accused-appellants Tulin, Loyola, and Infante,
Jr. and others, were the ones assigned to attack and seize the "M/T Tabangao" off Lubang, Mindoro,
while accused-appellant Cecilio Changco was to fetch the master and the members of the crew from
the shoreline of Calatagan, Batangas after the transfer, and bring them to Imus, Cavite, and to
provide the crew and the officers of the vessel with money for their fare and food provisions on their
way home. These acts had to be well-coordinated. Accused-appellant Cecilio Changco need not be
present at the time of the attack and seizure of "M/T Tabangao" since he performed his task in view
of an objective common to all other accused-appellants.

Of notable importance is the connection of accused-appellants to one another. Accused-appellant

Cecilio Changco is the younger brother of Emilio Changco (aka Captain Bobby/Captain Roberto
Castillo/Kevin Ocampo), owner of Phil-Asia Shipping Lines. Cecilio worked for his brother in said
corporation. Their residences are approximately six or seven kilometers away from each other. Their
families are close. Accused-appellant Tulin, on the other hand, has known Cecilio since their parents
were neighbors in Aplaya, Balibago, Calatagan, Batangas. Accused-appellant Loyola's wife is a
relative of the Changco brothers by affinity. Besides, Loyola and Emilio Changco had both been
accused in a seajacking case regarding "M/T Isla Luzon" and its cargo of steel coils and plates off
Cebu and Bohol in 1989. Emilio Changco (aka Kevin Ocampo) was convicted of the crime while
Loyola at that time remained at large.

As for accused-appellant Hiong, he ratiocinates that he can no longer be convicted of piracy in

Philippine waters as defined and penalized in Sections 2[d] and 3[a], respectively of Presidential
Decree No. 532 because Republic Act No. 7659 (effective January 1, 1994), which amended Article
122 of the Revised Penal Code, has impliedly superseded Presidential Decree No. 532. He reasons
out that Presidential Decree No. 532 has been rendered "superfluous or duplicitous" because both
Article 122 of the Revised Penal Code, as amended, and Presidential Decree No. 532 punish piracy
committed in Philippine waters. He maintains that in order to reconcile the two laws, the word "any
person" mentioned in Section 1 [d] of Presidential Decree No. 532 must be omitted such that
Presidential Decree No. 532 shall only apply to offenders who are members of the complement or to
passengers of the vessel, whereas Republic Act No. 7659 shall apply to offenders who are neither
members of the complement or passengers of the vessel, hence, excluding him from the coverage of
the law.

Article 122 of the Revised Penal Code, used to provide:

ARTICLE 122. Piracy in general and mutiny on the high seas. — The penalty of reclusion
temporal shall be inflicted upon any person who, on the high seas, shall attack or seize a
vessel or, not being a member of its complement nor a passenger, shall seize the whole or
part of the cargo of said vessel, its equipment, or personal belongings of its complement or
passengers.

(Italics supplied.)

Article 122, as amended by Republic Act No. 7659 (January 1, 1994), reads:

ARTICLE 122. Piracy in general and mutiny on the high seas or in Philippine waters. — The
penalty of reclusion perpetua shall be inflicted upon any person who, on the high seas, or in
Philippine waters, shall attack or seize a vessel or, not being a member of its complement nor
 41

a passenger, shall seize the whole or part of the cargo of said vessel, its equipment, or
personal belongings of its complement or passengers.

(Italics ours)

On the other hand, Section 2 of Presidential Decree No. 532 provides:

SECTION 2. Definition of Terms. — The following shall mean and be understood, as follows:

d. Piracy. — Any attack upon or seizure of any vessel or the taking away of the whole or part
thereof or its cargo, equipment, or the personal belongings of its complement or passengers,
irrespective of the value thereof, by means of violence against or intimidation of persons or
force upon things, committed by any person, including a passenger or member of the
complement of said vessel in Philippine waters, shall be considered as piracy. The offenders
shall be considered as pirates and punished as hereinafter provided (Italics supplied).

To summarize, Article 122 of the Revised Penal Code, before its amendment, provided that piracy
must be committed on the high seas by any person not a member of its complement nor a passenger
thereof. Upon its amendment by Republic Act No. 7659, the coverage of the pertinent provision was
widened to include offenses committed "in Philippine waters." On the other hand, under Presidential
Decree No. 532 (issued in 1974), the coverage of the law on piracy embraces any person including "a
passenger or member of the complement of said vessel in Philippine waters." Hence, passenger or
not, a member of the complement or not, any person is covered by the law.

Republic Act No. 7659 neither superseded nor amended the provisions on piracy under Presidential
Decree No. 532. There is no contradiction between the two laws. There is likewise no ambiguity and
hence, there is no need to construe or interpret the law. All the presidential decree did was to widen
the coverage of the law, in keeping with the intent to protect the citizenry as well as neighboring
states from crimes against the law of nations. As expressed in one of the "whereas" clauses of
Presidential Decree No. 532, piracy is "among the highest forms of lawlessness condemned by the
penal statutes of all countries." For this reason, piracy under the Article 122, as amended, and piracy
under Presidential Decree No. 532 exist harmoniously as separate laws.

As regards the contention that the trial court did not acquire jurisdiction over the person of accused-
appellant Hiong since the crime was committed outside Philippine waters, suffice it to state that
unquestionably, the attack on and seizure of "M/T Tabangao" (renamed "M/T Galilee" by the pirates)
and its cargo were committed in Philippine waters, although the captive vessel was later brought by
the pirates to Singapore where its cargo was off-loaded, transferred, and sold. And such transfer was
done under accused-appellant Hiong's direct supervision. Although Presidential Decree No. 532
requires that the attack and seizure of the vessel and its cargo be committed in Philippine waters, the
disposition by the pirates of the vessel and its cargo is still deemed part of the act of piracy, hence,
the same need not be committed in Philippine waters.

Moreover, piracy falls under Title One of Book Two of the Revised Penal Code. As such, it is an
exception to the rule on territoriality in criminal law. The same principle applies even if Hiong, in the
instant case, were charged, not with a violation of qualified piracy under the penal code but under a
special law, Presidential Decree No. 532 which penalizes piracy in Philippine waters. Verily,
Presidential Decree No. 532 should be applied with more force here since its purpose is precisely to
discourage and prevent piracy in Philippine waters (People v. Catantan, 278 SCRA 761 [1997]). It is
likewise, well-settled that regardless of the law penalizing the same, piracy is a reprehensible crime
against the whole world (People v. Lol-lo, 43 Phil. 19 [1922]).
 42

However, does this constitute a violation of accused-appellant's constitutional right to be informed of

the nature and cause of the accusation against him on the ground that he was convicted as an
accomplice under Section 4 of Presidential Decree No. 532 even though he was charged as a
principal by direct participation under Section 2 of said law?

The trial court found that there was insufficiency of evidence showing:

(a) that accused-appellant Hiong directly participated in the attack and seizure of "M/T Tabangao"
and its cargo; (b) that he induced Emilio Changco and his group in the attack and seizure of "M/T
Tabangao" and its cargo; (c) and that his act was indispensable in the attack on and seizure of "M/T
Tabangao" and its cargo. Nevertheless, the trial court found that accused-appellant Hiong's
participation was indisputably one which aided or abetted Emilio Changco and his band of pirates in
the disposition of the stolen cargo under Section 4 of Presidential Decree No. 532 which provides:

SECTION 4. Aiding pirates or highway robbers/brigands or abetting piracy or highway robbery

brigandage. — Any person who knowingly and in any manner aids or protects pirates or
highway robbers/brigands, such as giving them information about the movement of police or
other peace officers of the government, or acquires or receives property taken by such pirates
or brigands or in any manner derives any benefit therefrom; or any person who directly or
indirectly abets the commission of piracy or highway robbery or brigandage, shall be
considered as an accomplice of the principal officers and be punished in accordance with
Rules prescribed by the Revised Penal Code.

It shall be presumed that any person who does any of the acts provided in this Section has
performed them knowingly, unless the contrary is proven.

The ruling of the trial court is within well-settled jurisprudence that if there is lack of complete
evidence of conspiracy, the liability is that of an accomplice and not as principal (People v. Tolentino,
40 SCRA 514 [1971]). Any doubt as to the participation of an individual in the commission of the
crime is always resolved in favor of lesser responsibility (People v. Corbes, 270 SCRA 465 [1997];
People vs. Elfano, Jr., 125 SCRA 792 [1983]; People v. Pastores, 40 SCRA 498 [1971]).

Emphasis must also be placed on the last paragraph of Section 4 of Presidential Decree No. 532
which presumes that any person who does any of the acts provided in said section has performed
them knowingly, unless the contrary is proven. In the case at bar, accused-appellant Hiong had failed
to overcome the legal presumption that he knowingly abetted or aided in the commission of piracy,
received property taken by such pirates and derived benefit therefrom.

The record discloses that accused-appellant Hiong aided the pirates in disposing of the stolen cargo
by personally directing its transfer from "M/T Galilee" to "M/T Navi Pride". He profited therefrom by
buying the hijacked cargo for Navi Marine Services, Pte., Ltd. (tsn, June 3, 1992, pp. 15-23). He even
tested the quality and verified the quantity of the petroleum products, connived with Navi Marine
Services personnel in falsifying the General Declarations and Crew List to ensure that the illegal
transfer went through, undetected by Singapore Port Authorities, and supplied, the pirates with food,
beer, and other provisions for their maintenance while in port (tsn, June 3, 1992, pp. 133-134).

We believe that the falsification of the General Declaration (Arrival and Departure) and Crew List was
accomplished and utilized by accused-appellant Hiong and Navi Marine Services personnel in the
execution of their scheme to avert detection by Singapore Port Authorities. Hence, had accused-
appellant Hiong not falsified said entries, the Singapore Port Authorities could have easily discovered
the illegal activities that took place and this would have resulted in his arrest and prosecution in
 43

Singapore. Moreover, the transfer of the stolen cargo from "M/T Galilee" to "Navi Pride" could not
have been effected.

We completely uphold the factual findings of the trial court showing in detail accused-appellant
Hiong's role in the disposition of the pirated goods summarized as follows: that on March 27, 1991,
Hiong with Captain Biddy Santos boarded the "Navi Pride," one of the vessels of the Navi Marine, to
rendezvous with the "M/T Galilee"; that the firm submitted the crew list of the vessel (Exhibit "8-CSH",
Record) to the port authorities, excluding the name of Hiong; that the "General Declaration" (for
departure) of the "Navi Pride" for its voyage off port of Singapore (Exhibits "HH" and "8-A CSH",
Record) falsely stated that the vessel was scheduled to depart at 2200 (10 o'clock in the evening),
that there were no passengers on board, and the purpose of the voyage was for "cargo operation"
and that the vessel was to unload and transfer 1,900 tons of cargo; that after the transfer of the fuel
from "M/T Galilee" with Emilio Changco a. k. a. Captain Bobby a. k. a. Roberto Castillo at the helm,
the surveyor prepared the "Quantity Certificate" (Exhibit "11-C CSH, Record) stating that the cargo
transferred to the "Navi Pride" was 2,406 gross cubic meters; that although Hiong was not the Master
of the vessel, he affixed his signature on the "Certificate" above the word "Master" (Exhibit "11-C-2
CSH", Record); that he then paid P150,000.00 but did not require any receipt for the amount; that
Emilio Changco also did not issue one; and that in the requisite "General Declaration" upon its arrival
at Singapore on March 29, 1991, at 7 o'clock in the evening, (Exhibits "JJ" and "13-A CSH", Record),
it was made to falsely appear that the "Navi Pride" unloaded 1,700 tons of cargo on the high seas
during said voyage when in fact it acquired from the "M/T Galilee" 2,000 metric tons of diesel oil. The
second transfer transpired with the same irregularities as discussed above. It was likewise supervised
by accused-appellant Cheong from his end while Emilio Changco supervised the transfer from his
end.

Accused-appellant Hiong maintains that he was merely following the orders of his superiors and that
he has no knowledge of the illegality of the source of the cargo.

First and foremost, accused-appellant Hiong cannot deny knowledge of the source and nature of the
cargo since he himself received the same from "M/T Tabangao". Second, considering that he is a
highly educated mariner, he should have avoided any participation in the cargo transfer given the
very suspicious circumstances under which it was acquired. He failed to show a single piece of deed
or bill of sale or even a purchase order or any contract of sale for the purchase by the firm; he never
bothered to ask for and scrutinize the papers and documentation relative to the "M/T Galilee"; he did
not even verify the identity of Captain Robert Castillo whom he met for the first time nor did he check
the source of the cargo; he knew that the transfer took place 66 nautical miles off Singapore in the
dead of the night which a marine vessel of his firm did not ordinarily do; it was also the first time Navi
Marine transacted with Paul Gan involving a large sum of money without any receipt issued therefor;
he was not even aware if Paul Gan was a Singaporean national and thus safe to deal with. It should
also be noted that the value of the cargo was P40,426,793.87 or roughly more than US$1,000,000.00
(computed at P30.00 to $1, the exchange rate at that time). Manifestly, the cargo was sold for less
than one-half of its value. Accused-appellant Hiong should have been aware of this irregularity.
Nobody in his right mind would go to far away Singapore, spend much time and money for
transportation — only to sell at the aforestated price if it were legitimate sale involved. This, in
addition to the act of falsifying records, clearly shows that accused-appellant Hiong was well aware
that the cargo that his firm was acquiring was purloined.

Lastly, it cannot be correctly said that accused-appellant was "merely following the orders of his
superiors." An individual is justified in performing an act in obedience to an order issued by a superior
if such order, is for some lawful purpose and that the means used by the subordinate to carry out said
order is lawful (Reyes, Revised Penal Code, Vol. 1, 1981 ed., p. 212). Notably, the alleged order of
Hiong's superior Chua Kim Leng Timothy, is a patent violation not only of Philippine, but of
 44

international law. Such violation was committed on board a Philippine-operated vessel. Moreover, the
means used by Hiong in carrying out said order was equally unlawful. He misled port and immigration
authorities, falsified records, using a mere clerk, Frankie Loh, to consummate said acts. During the
trial, Hiong presented himself, and the trial court was convinced, that he was an intelligent and
articulate Port Captain. These circumstances show that he must have realized the nature and the
implications of the order of Chua Kim Leng Timothy. Thereafter, he could have refused to follow
orders to conclude the deal and to effect the transfer of the cargo to the "Navi Pride." He did not do
so, for which reason, he must now suffer the consequences of his actions.

WHEREFORE, finding the conviction of accused-appellants justified by the evidence on record, the
Court hereby AFFIRMS the judgment of the trial court in toto.

SO ORDERED.
 45

G.R. No. 93028 July 29, 1994

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
MARTIN SIMON y SUNGA, respondent.

The Solicitor General for plaintiff-appellee.

Ricardo M.Sampang for accused-appellant.

REGALADO, J.:

Herein accused-appellant Martin Simon y Sunga was charged on November 10, 1988 with a violation
of Section 4, Article II of Republic Act
No. 6425, as amended, otherwise known as the Dangerous Drugs Act of 1972, under an indictment
alleging that on or about October 22, 1988, at Barangay Sto. Cristo, Guagua, Pampanga, he sold four
tea bags of marijuana to a Narcotics Command (NARCOM) poseur-buyer in consideration of the sum
of P40.00, which tea bags, when subjected to laboratory examination, were found positive for
marijuana.1

Eventually arraigned with the assistance of counsel on March 2, 1989, after his rearrest following his
escape from Camp Olivas, San Fernando, Pampanga where he was temporarily detained,2 he
pleaded not guilty. He voluntarily waived his right to a pre-trial conference,3 after which trial on the
merits ensued and was duly concluded.

The evidence on record shows that a confidential informant, later identified as a NARCOM operative,
informed the police unit at Camp Olivas, San Fernando, Pampanga, of the illegal drug activities of a
certain "Alyas Pusa" at Sto. Cristo, Guagua, Pampanga. Capt. Francisco Bustamante, Commanding
Officer of the 3rd Narcotics Regional Unit in the camp, then formed a buy-bust team composed of
Sgt. Buenaventura Lopez, Pfc. Virgilio Villaruz and
Sgt. Domingo Pejoro, all members of the same unit. After securing marked money from Bustamante,
the team, together with their informant, proceeded to Sto. Cristo after they had coordinated with the
police authorities and barangay officers thereof. When they reached the place, the confidential
informer pointed out appellant to Lopez who consequently approached appellant and asked him if he
had marijuana. Appellant answered in the affirmative and Lopez offered to buy two tea bags.
Appellant then left and, upon returning shortly thereafter, handed to Lopez two marijuana tea bags
and Lopez gave him the marked money amounting to P40.00 as payment. Lopez then scratched his
head as a
pre-arranged signal to his companions who were stationed around ten to fifteen meters away, and the
team closed in on them. Thereupon, Villaruz, who was the head of the back-up team, arrested
appellant. The latter was then brought by the team to the 3rd Narcotics Regional Unit at Camp Olivas
on board a jeep and he was placed under custodial investigation, with Sgt. Pejoro as the
investigator.4

Pfc. Villaruz corroborated Lopez' testimony, claiming that he saw the deal that transpired between
Lopez and the appellant. He also averred that he was the one who confiscated the marijuana and
took the marked money from appellant.5
 46

Sgt. Domingo Pejoro, for his part, declared that although he was part of the buy-bust team, he was
stationed farthest from the rest of the other members, that is, around two hundred meters away from
his companions. He did not actually see the sale that transpired between Lopez and appellant but he
saw his teammates accosting appellant after the latter's arrest. He was likewise the one who
conducted the custodial investigation of appellant wherein the latter was apprised of his rights to
remain silent, to information and to counsel. Appellant, however, orally waived his right to counsel.6

Pejoro also claimed having prepared Exhibit "G", the "Receipt of Property Seized/Confiscated" which
appellant signed, admitting therein the confiscation of four tea bags of marijuana dried leaves in his
possession. Pejoro likewise informed the court below that, originally, what he placed on the receipt
was that only one marijuana leaf was confiscated in exchange for P20.00. However, Lopez and
Villaruz corrected his entry by telling him to put "two", instead of "one" and "40", instead of "20". He
agreed to the correction since they were the ones who were personally and directly involved in the
purchase of the marijuana and the arrest of appellant.7

Dr. Pedro S. Calara, a medical officer at Camp Olivas, examined appellant at 5:30 p.m. of the day
after the latter's apprehension, and the results were practically normal except for his relatively high
blood pressure. The doctor also did not find any trace of physical injury on the person of appellant.
The next day, he again examined appellant due to the latter's complaint of
gastro-intestinal pain. In the course of the examination, Dr. Calara discovered that appellant has a
history of peptic ulcer, which causes him to experience abdominal pain and consequently vomit
blood. In the afternoon, appellant came back with the same complaint but, except for the gastro-
intestinal pain, his physical condition remained normal.8

As expected, appellant tendered an antipodal version of the attendant facts, claiming that on the day
in question, at around 4:30 p.m., he was watching television with the members of his family in their
house when three persons, whom he had never met before suddenly arrived. Relying on the
assurance that they would just inquire about something from him at their detachment, appellant
boarded a jeep with them. He was told that they were going to Camp Olivas, but he later noticed that
they were taking a different route. While on board, he was told that he was a pusher so he attempted
to alight from the jeep but he was handcuffed instead. When they finally reached the camp, he was
ordered to sign some papers and, when he refused, he was boxed in the stomach eight or nine times
by Sgt. Pejoro. He was then compelled to affix his signature and fingerprints on the documents
presented to him. He denied knowledge of the P20.00 or the dried marijuana leaves, and insisted that
the twenty-peso bill came from the pocket of Pejoro. Moreover, the reason why he vomited blood was
because of the blows he suffered at the hands of Pejoro. He admitted having escaped from the
NARCOM office but claimed that he did so since he could no longer endure the maltreatment to
which he was being subjected. After escaping, he proceeded to the house of his uncle, Bienvenido
Sunga, at San Matias, Guagua, reaching the place at around 6:30 or 7:30 p.m. There, he consulted a
quack doctor and, later, he was accompanied by his sister to the Romana Pangan District Hospital at
Floridablanca, Pampanga where he was confined for three days.9

Appellant's brother, Norberto Simon, testified to the fact that appellant was hospitalized at
Floridablanca, Pampanga after undergoing abdominal pain and vomiting of blood. He likewise
confirmed that appellant had been suffering from peptic ulcer even before the latter's arrest.10 Also,
Dr. Evelyn Gomez-Aguas, a resident physician of Romana Pangan District Hospital, declared that
she treated appellant for three days due to abdominal pain, but her examination revealed that the
cause for this ailment was appellant's peptic ulcer. She did not see any sign of slight or serious
external injury, abrasion or contusion on his body.11

On December 4, 1989, after weighing the evidence presented, the trial court rendered judgment
convicting appellant for a violation of Section 4, Article II of Republic Act No. 6425, as amended, and
 47

sentencing him to suffer the penalty of life imprisonment, to pay a fine of twenty thousand pesos and
to pay the costs. The four tea bags of marijuana dried leaves were likewise ordered confiscated in
favor of the Government.12

Appellant now prays the Court to reverse the aforementioned judgment of the lower court, contending
in his assignment of errors that the latter erred in (1) not upholding his defense of "frame-up", (2) not
declaring Exhibit "G" (Receipt of Property Seized/Confiscated) inadmissible in evidence, and (3)
convicting him of a violation of the Dangerous Drugs Act.13

At the outset, it should be noted that while the People's real theory and evidence is to the effect the
appellant actually sold only two tea bags of marijuana dried leaves, while the other two tea bags were
merely confiscated subsequently from his possession,14 the latter not being in any way connected
with the sale, the information alleges that he sold and delivered four tea bags of marijuana dried
leaves.15 In view thereof, the issue presented for resolution in this appeal is merely the act of selling
the two tea bags allegedly committed by appellant, and does not include the disparate and distinct
issue of illegal possession of the other two tea bags which separate offense is not charged herein.16

To sustain a conviction for selling prohibited drugs, the sale must be clearly and unmistakably
established.17 To sell means to give, whether for money or any other material consideration.18 It
must, therefore, be established beyond doubt that appellant actually sold and delivered two tea bags
of marijuana dried leaves to Sgt. Lopez, who acted as the poseur-buyer, in exchange for two twenty-
peso bills.

After an assiduous review and calibration of the evidence adduced by both parties, we are morally
certain that appellant was caught in flagrante delicto engaging in the illegal sale of prohibited drugs.
The prosecution was able to prove beyond a scintilla of doubt that appellant, on October 22, 1988, did
sell two tea bags of marijuana dried leaves to Sgt. Lopez. The latter himself creditably testified as to
how the sale took place and his testimony was amply corroborated by his teammates. As between
the straightforward, positive and corroborated testimony of Lopez and the bare denials and negative
testimony of appellant, the former undeniably deserves greater weight and is more entitled to
credence.

We are aware that the practice of entrapping drug traffickers through the utilization of poseur-buyers
is susceptible to mistake, harassment, extortion and abuse.19 Nonetheless, such causes for judicial
apprehension and doubt do not obtain in the case at bar. Appellant's entrapment and arrest were not
effected in a haphazard way, for a surveillance was conducted by the team before the
buy-bust operation was effected.20 No ill motive was or could be attributed to them, aside from the
fact that they are presumed to have regularly performed their official duty.21 Such lack of dubious
motive coupled with the presumption of regularity in the performance of official duty, as well as the
findings of the trial court on the credibility of witnesses, should prevail over the self-serving and
uncorroborated claim of appellant of having been framed,22 erected as it is upon the mere shifting
sands of an alibi. To top it all, appellant was caught
red-handed delivering prohibited drugs, and while there was a delimited chance for him to controvert
the charge, he does not appear to have plausibly done so.

When the drug seized was submitted to the Crime Laboratory Service of the then Philippine
Constabulary-Integrated National Police (PC-INP) at Camp Olivas for examination, P/Cpl. Marlyn
Salangad, a forensic chemist therein,23 confirmed in her Technical Report No. NB-448-88 that the
contents of the four tea bags confiscated from appellant were positive for and had a total weight of
3.8 grams of marijuana.24 Thus, the corpus delicti of the crime had been fully proved with certainty
and conclusiveness.25
 48

Appellant would want to make capital of the alleged inconsistencies and improbabilities in the
testimonies of the prosecution witnesses. Foremost, according to him, is the matter of who really
confiscated the marijuana tea bags from him since, in open court, Pejoro asserted that he had
nothing to do with the confiscation of the marijuana, but in the aforementioned "Receipt of Property
Seized/Confiscated," he signed it as the one who seized the same.26

Suffice it to say that whether it was Villaruz or Pejoro who confiscated the marijuana will not really
matter since such is not an element of the offense with which appellant is charged. What is
unmistakably clear is that the marijuana was confiscated from the possession of appellant. Even,
assuming arguendo that the prosecution committed an error on who actually seized the marijuana
from appellant, such an error or discrepancy refers only to a minor matter and, as such, neither
impairs the essential integrity of the prosecution evidence as a whole nor reflects on the witnesses'
honesty.27 Besides, there was clearly a mere imprecision of language since Pejoro obviously meant
that he did not take part in the physical taking of the drug from the person of appellant, but he
participated in the legal seizure or confiscation thereof as the investigator of their unit.

Next, appellant adduces the argument that the twenty-peso bills allegedly confiscated from him were
not powdered for finger-printing purposes contrary to the normal procedure in buy-bust operations.28
This omission has been satisfactorily explained by Pfc. Virgilio Villaruz in his testimony, as follows:

Q: Is it the standard operating procedure of your unit that in conducting

such operation you do not anymore provide a powder (sic) on the object
so as to determine the thumbmark or identity of the persons taking hold of
the object?

A: We were not able to put powder on these denominations because we

are lacking that kind of material in our office since that item can be
purchased only in Manila and only few are producing that, sir.

xxx xxx xxx

Q: Is it not a fact that your office is within (the) P.C. Crime Laboratory,
CIS, as well as the office of NICA?

A: Our office is only adjacent to those offices but we cannot make a

request for that powder because they, themselves, are using that in their
own work, sir.29

The foregoing explanation aside, we agree that the failure to mark the money bills used for
entrapment purposes can under no mode of rationalization be fatal to the case of the prosecution
because the Dangerous Drugs Act punishes "any person who, unless authorized by law, shall sell,
administer, deliver, give away to another, distribute, dispatch in transit or transport any prohibited
drug, or shall act as a broker in any of such transactions."30 The dusting of said bills with
phosphorescent powder is only an evidentiary technique for identification purposes, which
identification can be supplied by other species of evidence.

Again, appellant contends that there was neither a relative of his nor any barangay official or civilian
to witness the seizure. He decries the lack of pictures taken before, during and after his arrest.
Moreover, he was not reported to or booked in the custody of any barangay official or police
authorities.31 These are absurd disputations. No law or jurisprudence requires that an arrest or
seizure, to be valid, be witnessed by a relative, a barangay official or any other civilian, or be
accompanied by the taking of pictures. On the contrary, the police enforcers having caught appellant
 49

in flagrante delicto, they were not only authorized but were also under the obligation to effect a
warrantless arrest and seizure.

Likewise, contrary to appellant's contention, there was an arrest report prepared by the police in
connection with his apprehension. Said Booking Sheet and Arrest Report32 states, inter alia, that
"suspect was arrested for selling two tea bags of suspected marijuana dried leaves and the
confiscation of another two tea bags of suspected marijuana dried leaves." Below these remarks was
affixed appellant's signature. In the same manner, the receipt for the seized property, hereinbefore
mentioned, was signed by appellant wherein he acknowledged the confiscation of the marked bills
from him.33

However, we find and hereby declare the aforementioned exhibits inadmissible in evidence.
Appellant's conformance to these documents are declarations against interest and tacit admissions of
the crime charged. They were obtained in violation of his right as a person under custodial
investigation for the commission of an offense, there being nothing in the records to show that he was
assisted by counsel.34 Although appellant manifested during the custodial investigation that he
waived his right to counsel, the waiver was not made in writing and in the presence of counsel,35
hence whatever incriminatory admission or confession may be extracted from him, either verbally or
in writing, is not allowable in evidence.36 Besides, the arrest report is self-serving and hearsay and
can easily be concocted to implicate a suspect.

Notwithstanding the objectionability of the aforesaid exhibits, appellant cannot thereby be extricated
from his predicament since his criminal participation in the illegal sale of marijuana has been
sufficiently proven. The commission of the offense of illegal sale of prohibited drugs requires merely
the consummation of the selling transaction37 which happens the moment the buyer receives the
drug from the seller.38 In the present case, and in light of the preceding discussion, this sale has
been ascertained beyond any peradventure of doubt.

Appellant then asseverates that it is improbable that he would sell marijuana to a total stranger.39 We
take this opportunity to once again reiterate the doctrinal rule that drug-pushing, when done on a
small scale as in this case, belongs to that class of crimes that may be committed at any time and in
any place.40 It is not contrary to human experience for a drug pusher to sell to a total stranger,41 for
what matters is not an existing familiarity between the buyer and seller but their agreement and the
acts constituting the sale and delivery of the marijuana leaves.42 While there may be instances
where such sale could be improbable, taking into consideration the diverse circumstances of person,
time and place, as well as the incredibility of how the accused supposedly acted on that occasion, we
can safely say that those exceptional particulars are not present in this case.

Finally, appellant contends that he was subjected to physical and mental torture by the arresting
officers which caused him to escape from Camp Olivas the night he was placed under custody.43
This he asserts to support his explanation as to how his signatures on the documents earlier
discussed were supposedly obtained by force and coercion.

The doctrine is now too well embedded in our jurisprudence that for evidence to be believed, it must
not only proceed from the mouth of a credible witness but must be credible in itself such as the
common experience and observation of mankind can approve as probable under the
circumstances.44 The evidence on record is bereft of any support for appellant's allegation of
maltreatment. Two doctors, one for the prosecution45 and the other for the defense,46 testified on
the absence of any tell-tale sign or indication of bodily injury, abrasions or contusions on the person
of appellant. What is evident is that the cause of his abdominal pain was his peptic ulcer from which
he had been suffering even before his arrest.47 His own brother even corroborated that fact, saying
that appellant has had a history of bleeding peptic ulcer.48
 50

Furthermore, if it is true that appellant was maltreated at Camp Olivas, he had no reason whatsoever
for not divulging the same to his brother who went to see him at the camp after his arrest and during
his detention there.49 Significantly, he also did not even report the matter to the authorities nor file
appropriate charges against the alleged malefactors despite the opportunity to do so50 and with the
legal services of counsel being available to him. Such omissions funnel down to the conclusion that
appellant's story is a pure fabrication.

These, and the events earlier discussed, soundly refute his allegations that his arrest was baseless
and premeditated for the NARCOM agents were determined to arrest him at all costs.51
Premeditated or not, appellant's arrest was only the culmination, the final act needed for his isolation
from society and it was providential that it came about after he was caught in the very act of illicit
trade of prohibited drugs. Accordingly, this opinion could have concluded on a note of affirmance of
the judgment of the trial court. However, Republic Act No. 6425, as amended, was further amended
by Republic Act No. 7659 effective December 31, 1993,52 which supervenience necessarily affects
the original disposition of this case and entails additional questions of law which we shall now resolve.

II

The provisions of the aforesaid amendatory law, pertinent to the adjudication of the case at bar, are to
this effect:

Sec. 13. Sections 3, 4, 5, 7, 8 and 9 of Art. II of Republic Act No. 6425, as amended,
known as the Dangerous Drugs Act of 1972, are hereby amended to read as follows:

xxx xxx xxx

Sec. 4. Sale, Administration, Delivery, Distribution and Transportation of

Prohibited Drugs. — The penalty of reclusion perpetua to death and a fine
ranging from five hundred thousand pesos to ten million pesos shall be
imposed upon any person who, unless authorized by law, shall sell,
administer, deliver, give away to another, distribute, dispatch in transit or
transport any prohibited drug, or shall act as a broker in any of such
transactions.

xxx xxx xxx

Sec. 17. Section 20, Article IV of Republic Act No. 6425, as amended, known as the
Dangerous Drugs Act of 1972, is hereby amended to read as follows:

Sec. 20. Application of Penalties, Confiscation and Forfeiture of the

Proceeds or Instrument of the Crime. — The penalties for offenses under
Sections 3, 4, 7, 8 and 9 of Article II and Sections 14, 14-A, 15 and 16 of
Article III of this Act shall be applied if the dangerous drugs involved is in
any of the following quantities:

xxx xxx xxx

5. 750 grams or more of indian hemp or marijuana

xxx xxx xxx

 51

Otherwise, if the quantity involved is less than the foregoing quantities, the
penalty shall range from prision correccional to reclusion perpetua
depending upon the quantity.

1. Considering that herein appellant is being prosecuted for the sale of four tea bags of marijuana
with a total weight of only 3.8 grams and, in fact, stands to be convicted for the sale of only two of
those tea bags, the initial inquiry would be whether the patently favorable provisions of Republic Act
No. 7659 should be given retroactive effect to entitle him to the lesser penalty provided thereunder,
pursuant to Article 22 of the Revised Penal Code.

Although Republic Act No. 6425 was enacted as a special law, albeit originally amendatory and in
substitution of the previous Articles 190 to 194 of the Revised Penal Code,53 it has long been settled
that by force of Article 10 of said Code the beneficient provisions of Article 22 thereof applies to and
shall be given retrospective effect to crimes punished by special laws.54 The execution in said article
would not apply to those convicted of drug offenses since habitual delinquency refers to convictions
for the third time or more of the crimes of serious or less serious physical injuries, robo, hurto, estafa
or falsification.55

Since, obviously, the favorable provisions of Republic Act No. 7659 could neither have then been
involved nor invoked in the present case, a corollary question would be whether this court, at the
present stage, can
sua sponte apply the provisions of said Article 22 to reduce the penalty to be imposed on appellant.
That issue has likewise been resolved in the cited case of People vs. Moran, et al., ante., thus:

. . . . The plain precept contained in article 22 of the Penal Code, declaring the
retroactivity of penal laws in so far as they are favorable to persons accused of a felony,
would be useless and nugatory if the courts of justice were not under obligation to fulfill
such duty, irrespective of whether or not the accused has applied for it, just as would
also all provisions relating to the prescription of the crime and the penalty.

If the judgment which could be affected and modified by the reduced penalties provided in Republic
Act No. 7659 has already become final and executory or the accused is serving sentence thereunder,
then practice, procedure and pragmatic considerations would warrant and necessitate the matter
being brought to the judicial authorities for relief under a writ of habeas corpus.56

2. Probably through oversight, an error on the matter of imposable penalties appears to have been
committed in the drafting of the aforesaid law; thereby calling for and necessitating judicial
reconciliation and craftsmanship.

As applied to the present case, Section 4 of Republic Act No. 6425, as now further amended,
imposes the penalty of reclusion perpetua to death and a fine ranging from P500,000.00 to
P10,000,000.00 upon any person who shall unlawfully sell, administer, deliver, give away, distribute,
dispatch in transit or transport any prohibited drug. That penalty, according to the amendment to
Section 20 of the law, shall be applied if what is involved is 750 grams or more of indian hemp or
marijuana; otherwise, if the quantity involved is less, the penalty shall range from prision correccional
to reclusion perpetua depending upon the quantity.

In other words, there is here an overlapping error in the provisions on the penalty of reclusion
perpetua by reason of its dual imposition, that is, as the maximum of the penalty where the marijuana
is less than 750 grams, and also as the minimum of the penalty where the marijuana involved is 750
grams or more. The same error has been committed with respect to the other prohibited and
regulated drugs provided in said Section 20. To harmonize such conflicting provisions in order to give
 52

effect to the whole law,57 we hereby hold that the penalty to be imposed where the quantity of the
drugs involved is less than the quantities stated in the first paragraph shall range from prision
correccional to reclusion temporal, and not reclusion perpetua. This is also concordant with the
fundamental rule in criminal law that all doubts should be construed in a manner favorable to the
accused.

3. Where, as in this case, the quantity of the dangerous drug is only 3.8 grams, hence covered by the
imposable range of penalties under the second paragraph of Section 20, as now modified, the law
provides that the penalty shall be taken from said range "depending upon the quantity" of the drug
involved in the case. The penalty in said second paragraph constitutes a complex one composed of
three distinct penalties, that is, prision correccional, prision mayor, and reclusion temporal. In such a
situation, the Code provides that each one shall form a period, with the lightest of them being the
minimum, the next as the medium, and the most severe as the maximum period.58

Ordinarily, and pursuant to Article 64 of the Code, the mitigating and aggravating circumstances
determine which period of such complex penalty
shall be imposed on the accused. The peculiarity of the second paragraph of Section 20, however, is
its specific mandate, above quoted, that the penalty shall instead depend upon the quantity of the
drug subject of the criminal transaction.59 Accordingly, by way of exception to Article 77 of the Code
and to subserve the purpose of Section 20 of Republic Act No. 7659, each of the aforesaid
component penalties shall be considered as a principal imposable penalty depending on the quantity
of the drug involved. Thereby, the modifying circumstances will not altogether be disregarded. Since
each component penalty of the total complex penalty will have to be imposed separately as
determined by the quantity of the drug involved, then the modifying circumstances can be used to fix
the proper period of that component penalty, as shall hereafter be explained.

It would, therefore, be in line with the provisions of Section 20 in the context of our aforesaid
disposition thereon that, unless there are compelling reasons for a deviation, the quantities of the
drugs enumerated in its second paragraph be divided into three, with the resulting quotient, and
double or treble the same, to be respectively the bases for allocating the penalty proportionately
among the three aforesaid periods according to the severity thereof. Thus, if the marijuana involved is
below 250 grams, the penalty to be imposed shall be prision correccional; from 250 to 499 grams,
prision mayor; and 500 to
749 grams, reclusion temporal. Parenthetically, fine is imposed as a conjunctive penalty only if the
penalty is reclusion perpetua to death.60

Now, considering the minimal quantity of the marijuana subject of the case at bar, the penalty of
prision correccional is consequently indicated but, again, another preliminary and cognate issue has
first to be resolved.

4. Prision correccional has a duration of 6 months and 1 day to 6 years and, as a divisible penalty, it
consists of three periods as provided in the text of and illustrated in the table provided by Article 76 of
the Code. The question is whether or not in determining the penalty to be imposed, which is here to
be taken from the penalty of prision correccional, the presence or absence of mitigating, aggravating
or other circumstances modifying criminal liability should be taken into account.

We are not unaware of cases in the past wherein it was held that, in imposing the penalty for offenses
under special laws, the rules on mitigating or aggravating circumstances under the Revised Penal
Code cannot and should not be applied. A review of such doctrines as applied in said cases,
however, reveals that the reason therefor was because the special laws involved provided their own
specific penalties for the offenses punished thereunder, and which penalties were not taken from or
with reference to those in the Revised Penal Code. Since the penalties then provided by the special
 53

laws concerned did not provide for the minimum, medium or maximum periods, it would consequently
be impossible to consider the aforestated modifying circumstances whose main function is to
determine the period of the penalty in accordance with the rules in Article 64 of the Code.

This is also the rationale for the holding in previous cases that the provisions of the Code on the
graduation of penalties by degrees could not be given supplementary application to special laws,
since the penalties in the latter were not components of or contemplated in the scale of penalties
provided by Article 71 of the former. The suppletory effect of the Revised Penal Code to special laws,
as provided in Article 10 of the former, cannot be invoked where there is a legal or physical
impossibility of, or a prohibition in the special law against, such supplementary application.

The situation, however, is different where although the offense is defined in and ostensibly punished
under a special law, the penalty therefor is actually taken from the Revised Penal Code in its
technical nomenclature and, necessarily, with its duration, correlation and legal effects under the
system of penalties native to said Code. When, as in this case, the law involved speaks of prision
correccional, in its technical sense under the Code, it would consequently be both illogical and absurd
to posit otherwise. More on this later.

For the nonce, we hold that in the instant case the imposable penalty under Republic Act No. 6425,
as amended by Republic Act No. 7659, is prision correccional, to be taken from the medium period
thereof pursuant to Article 64 of the Revised Penal Code, there being no attendant mitigating or
aggravating circumstance.

5. At this juncture, a clarificatory discussion of the developmental changes in the penalties imposed
for offenses under special laws would be necessary.

Originally, those special laws, just as was the conventional practice in the United States but differently
from the penalties provided in our Revised Penal Code and its Spanish origins, provided for one
specific penalty or a range of penalties with definitive durations, such as imprisonment for one year or
for one to five years but without division into periods or any technical statutory cognomen. This is the
special law contemplated in and referred to at the time laws like the Indeterminate Sentence Law61
were passed during the American regime.

Subsequently, a different pattern emerged whereby a special law would direct that an offense
thereunder shall be punished under the Revised Penal Code and in the same manner provided
therein. Inceptively, for instance, Commonwealth Act No. 30362 penalizing non-payment of salaries
and wages with the periodicity prescribed therein, provided:

Sec. 4. Failure of the employer to pay his employee or laborer as required by section
one of this Act, shall prima facie be considered a fraud committed by such employer
against his employee or laborer by means of false pretenses similar to those mentioned
in article three hundred and fifteen, paragraph four, sub-paragraph two (a) of the
Revised Penal Code and shall be punished in the same manner as therein provided.63

Thereafter, special laws were enacted where the offenses defined therein were specifically punished
by the penalties as technically named and understood in the Revised Penal Code. These are
exemplified by Republic Act No. 1700 (Anti-Subversion Act) where the penalties ranged from arresto
mayor to
death;64 Presidential Decree No. 1612 (Anti-Fencing Decree) where the penalties run from arresto
mayor to prision mayor; and Presidential Decree
No. 1866 (illegal possession and other prohibited acts involving firearms), the penalties wherefor may
involve prision mayor, reclusion temporal, reclusion perpetua or death.
 54

Another variant worth mentioning is Republic Act No. 6539

(Anti-Carnapping Act of 1972) where the penalty is imprisonment for not less than 14 years and 8
months and not more than 17 years and 4 months, when committed without violence or intimidation of
persons or force upon things; not less than 17 years and 4 months and not more than 30 years, when
committed with violence against or intimidation of any person, or force upon things; and life
imprisonment to death, when the owner, driver or occupant of the carnapped vehicle is killed.

With respect to the first example, where the penalties under the special law are different from and are
without reference or relation to those under the Revised Penal Code, there can be no suppletory
effect of the rules for the application of penalties under said Code or by other relevant statutory
provisions based on or applicable only to said rules for felonies under the Code. In this type of special
law, the legislative intendment is clear.

The same exclusionary rule would apply to the last given example, Republic Act No. 6539. While it is
true that the penalty of 14 years and
8 months to 17 years and 4 months is virtually equivalent to the duration of the medium period of
reclusion temporal, such technical term under the Revised Penal Code is not given to that penalty for
carnapping. Besides, the other penalties for carnapping attended by the qualifying circumstances
stated in the law do not correspond to those in the Code. The rules on penalties in the Code,
therefore, cannot suppletorily apply to Republic Act No. 6539 and special laws of the same
formulation.

On the other hand, the rules for the application of penalties and the correlative effects thereof under
the Revised Penal Code, as well as other statutory enactments founded upon and applicable to such
provisions of the Code, have suppletory effect to the penalties under the former Republic Act
No. 1700 and those now provided under Presidential Decrees Nos. 1612 and 1866. While these are
special laws, the fact that the penalties for offenses thereunder are those provided for in the Revised
Penal code lucidly reveals the statutory intent to give the related provisions on penalties for felonies
under the Code the corresponding application to said special laws, in the absence of any express or
implicit proscription in these special laws. To hold otherwise would be to sanction an indefensible
judicial truncation of an integrated system of penalties under the Code and its allied legislation, which
could never have been the intendment of Congress.

In People vs. Macatanda,65 a prosecution under a special law (Presidential Decree No. 533,
otherwise known as the Anti-Cattle Rustling Law of 1974), it was contended by the prosecution that
Article 64, paragraph 5, of the Revised Penal Code should not apply to said special law. We said
therein that —

We do not agree with the Solicitor General that P.D. 533 is a special law entirely distinct
from and unrelated to the Revised Penal Code. From the nature of the penalty imposed
which is in terms of the classification and duration of penalties as prescribed in the
Revised Penal Code, which is not for penalties as are ordinarily imposed in special
laws, the intent seems clear that P.D. 533 shall be deemed as an amendment of the
Revised Penal Code, with respect to the offense of theft of large cattle (Art. 310) or
otherwise to be subject to applicable provisions thereof such as Article 104 of the
Revised Penal Code . . . . Article 64 of the same Code should, likewise, be applicable, .
. . . (Emphasis supplied.)

More particularly with regard to the suppletory effect of the rules on penalties in the Revised Penal
Code to Republic Act No. 6425, in this case involving Article 63(2) of the Code, we have this more
recent pronouncement:
 55

. . . Pointing out that as provided in Article 10 the provisions of the Revised Penal Code
shall be "supplementary" to special laws, this Court held that where the special law
expressly grants to the court discretion in applying the penalty prescribed for the
offense, there is no room for the application of the provisions of the Code . . . .

The Dangerous Drugs Act of 1972, as amended by P.D. No. 1623, contains no explicit
grant of discretion to the Court in the application of the penalty prescribed by the law. In
such case, the court must be guided by the rules prescribed by the Revised Penal Code
concerning the application of penalties which distill the "deep legal thought and
centuries of experience in the administration of criminal laws." (Emphasis ours.)66

Under the aforestated considerations, in the case of the Dangerous Drugs Act as now amended by
Republic Act No. 7659 by the incorporation and prescription therein of the technical penalties defined
in and constituting integral parts of the three scales of penalties in the Code, 67 with much more
reason should the provisions of said Code on the appreciation and effects of all attendant modifying
circumstances apply in fixing the penalty. Likewise, the different kinds or classifications of penalties
and the rules for graduating
such penalties by degrees should have supplementary effect on Republic Act No. 6425, except if they
would result in absurdities as will now be explained.

While not squarely in issue in this case, but because this aspect is involved in the discussion on the
role of modifying circumstances, we have perforce to lay down the caveat that mitigating
circumstances should be considered and applied only if they affect the periods and the degrees of the
penalties within rational limits.

Prefatorily, what ordinarily are involved in the graduation and consequently determine the degree of
the penalty, in accordance with the rules in Article 61 of the Code as applied to the scale of penalties
in Article 71, are the stage of execution of the crime and the nature of the participation of the
accused. However, under paragraph 5 of Article 64, when there are two or more ordinary mitigating
circumstances and no aggravating circumstance, the penalty shall be reduced by one degree. Also,
the presence of privileged mitigating circumstances, as provided in Articles 67 and 68, can reduce the
penalty by one or two degrees, or even more. These provisions of Articles 64(5), 67 and 68 should
not apply in toto in the determination of the proper penalty under the aforestated second paragraph of
section 20 of Republic Act No. 6425, to avoid anomalous results which could not have been
contemplated by the legislature.

Thus, paragraph 5 of Article 61 provides that when the law prescribes a penalty in some manner not
specially provided for in the four preceding paragraphs thereof, the courts shall proceed by analogy
therewith. Hence, when the penalty prescribed for the crime consists of one or two penalties to be
imposed in their full extent, the penalty next lower in degree shall likewise consist of as many
penalties which follow the former in the scale in Article 71. If this rule were to be applied, and since
the complex penalty in this
case consists of three discrete penalties in their full extent, that is,
prision correccional, prision mayor and reclusion temporal, then one degree lower would be arresto
menor, destierro and arresto mayor. There could, however, be no further reduction by still one or two
degrees, which must each likewise consist of three penalties, since only the penalties of fine and
public censure remain in the scale.

The Court rules, therefore, that while modifying circumstances may be appreciated to determine the
periods of the corresponding penalties, or even reduce the penalty by degrees, in no case should
such graduation of penalties reduce the imposable penalty beyond or lower than prision correccional.
It is for this reason that the three component penalties in the second paragraph of Section 20 shall
 56

each be considered as an independent principal penalty, and that the lowest penalty should in any
event be prision correccional in order not to depreciate the seriousness of drug offenses. Interpretatio
fienda est ut res magis valeat quam pereat. Such interpretation is to be adopted so that the law may
continue to have efficacy rather than fail. A perfect judicial solution cannot be forged from an
imperfect law, which impasse should now be the concern of and is accordingly addressed to
Congress.

6. The final query is whether or not the Indeterminate Sentence Law is applicable to the case now
before us. Apparently it does, since drug offenses are not included in nor has appellant committed
any act which would put him within the exceptions to said law and the penalty to be imposed does not
involve reclusion perpetua or death, provided, of course, that the penalty as ultimately resolved will
exceed one year of imprisonment.68 The more important aspect, however, is how the indeterminate
sentence shall be ascertained.

It is true that Section 1 of said law, after providing for indeterminate sentence for an offense under the
Revised Penal Code, states that "if the offense is punished by any other law, the court shall sentence
the accused to an indeterminate sentence, the maximum term of which shall not exceed the
maximum fixed by said law and the minimum shall not be less than the minimum term prescribed by
the same." We hold that this quoted portion of the section indubitably refers to an offense under a
special law wherein the penalty imposed was not taken from and is without reference to the Revised
Penal Code, as discussed in the preceding illustrations, such that it may be said that the "offense is
punished" under that law.

There can be no sensible debate that the aforequoted rule on indeterminate sentence for offenses
under special laws was necessary because of the nature of the former type of penalties under said
laws which were not included or contemplated in the scale of penalties in Article 71 of the Code,
hence there could be no minimum "within the range of the penalty next lower to that prescribed by the
Code for the offense," as is the rule for felonies therein. In the illustrative examples of penalties in
special laws hereinbefore provided, this rule applied, and would still apply, only to the first and last
examples. Furthermore, considering the vintage of Act No. 4103 as earlier noted, this holding is but
an application and is justified under the rule of contemporanea expositio.69

We repeat, Republic Act No. 6425, as now amended by Republic Act No. 7659, has unqualifiedly
adopted the penalties under the Revised Penal Code in their technical terms, hence with their
technical signification and effects. In fact, for purposes of determining the maximum of said sentence,
we
have applied the provisions of the amended Section 20 of said law to arrive at prision correccional
and Article 64 of the Code to impose the same in the medium period. Such offense, although
provided for in a special law, is now in effect punished by and under the Revised Penal Code.
Correlatively, to determine the minimum, we must apply the first part of the aforesaid Section 1 which
directs that "in imposing a prison sentence for an offense punished by the Revised Penal Code, or its
amendments, the court shall sentence the accused to an indeterminate sentence the maximum term
of which shall be that which, in view of the attending circumstances, could be properly imposed under
the rules of said Code, and the minimum which shall be within the range of the penalty next lower to
that prescribed by the Code for the offense." (Emphasis ours.)

A divergent pedantic application would not only be out of context but also an admission of the
hornbook maxim that qui haeret in litera haeret in cortice. Fortunately, this Court has never gone only
skin-deep in its construction of Act. No. 4103 by a mere literal appreciation of its provisions. Thus,
with regard to the phrase in Section 2 thereof excepting from its coverage "persons convicted of
offenses punished with death penalty or life imprisonment," we have held that what is considered is
 57

the penalty actually imposed and not the penalty imposable under the law,70 and that reclusion
perpetua is likewise embraced therein although what the law states is "life imprisonment".

What irresistibly emerges from the preceding disquisition, therefore, is that under the concurrence of
the principles of literal interpretation, which have been rationalized by comparative decisions of this
Court; of historical interpretation, as explicated by the antecedents of the law and related
contemporaneous legislation; and of structural interpretation, considering the interrelation of the
penalties in the Code as supplemented by Act No. 4103 in an integrated scheme of penalties, it
follows that the minimum of the indeterminate sentence in this case shall be the penalty next lower to
that prescribed for the offense. Thereby we shall have interpreted the seeming ambiguity in Section 1
of Act No. 4103 in such a way as to harmonize laws with laws, which is the best mode of
interpretation.71

The indeterminate Sentence Law is a legal and social measure of compassion, and should be
liberally interpreted in favor of the accused.72 The "minimum" sentence is merely a period at which,
and not before, as a matter of grace and not of right, the prisoner may merely be allowed to serve the
balance of his sentence outside of his confinement.73 It does not constitute the totality of the penalty
since thereafter he still has to continue serving the rest of his sentence under set conditions. That
minimum is only the period when the convict's eligibility for parole may be considered. In fact, his
release on parole may readily be denied if he is found unworthy thereof, or his reincarceration may be
ordered on legal grounds, even if he has served the minimum sentence.

It is thus both amusing and bemusing if, in the case at bar, appellant should be begrudged the benefit
of a minimum sentence within the range of arresto mayor, the penalty next lower to prision
correccional which is the maximum range we have fixed through the application of Articles 61 and 71
of the Revised Penal Code. For, with fealty to the law, the court may set the minimum sentence at 6
months of arresto mayor, instead of 6 months and 1 day of prision correccional. The difference, which
could thereby even involve only one day, is hardly worth the creation of an overrated tempest in the
judicial teapot.

ACCORDINGLY, under all the foregoing premises, the judgment of conviction rendered by the court a
quo against accused-appellant Martin Simon y Sunga is AFFIRMED, but with the MODIFICATION
that he should be, as he hereby is, sentenced to serve an indeterminate penalty of six (6) months of
arresto mayor, as the minimum, to six (6) years of prision correccional, as the maximum thereof.

SO ORDERED.

Narvasa, C.J., Cruz, Padilla, Bidin, Romero, Melo, Puno, Vitug, Kapunan and Mendoza, JJ.,
concur.

Bellosillo, J., is on leave.

Separate Opinions
 58

DAVIDE, JR., J., concurring and dissenting:

I am still unable to agree with the view that (a) in appropriate cases where the penalty to be imposed
would be prision correccional pursuant to the second paragraph of Section 20 of R.A. No. 6425, as
amended by Section 17 of R.A. No. 7659, the sentence to be meted out, applying the Indeterminate
Sentence Law (Act No. 4103, as amended), should be that whose minimum is within the range of the
penalty next lower, i.e., arresto mayor; and (b) the presence of two or more mitigating circumstances
not offset by any mitigating circumstances or of a privileged mitigating circumstance shall not reduce
the penalty by one or two degrees if the penalty to be imposed, taking into account the quantity of the
dangerous drugs involved, would be prision correccional.

The first view is based on the proposition that since R.A. No. 7659 had unqualifiedly adopted the
penalties under the Revised Penal Code in their technical terms, hence also their technical
signification and effects, then what should govern is the first part of Section 1 of the Indeterminate
Sentence Law which directs that:

in imposing a prison sentence for an offense punished by the Revised Penal Code, or
its amendments, the court shall sentence the accused to an indeterminate sentence the
maximum term of which shall be that which, in view of the attending circumstances,
could be properly imposed under the rules of the said Code, and the minimum which
shall be within the range of the penalty next lower to that prescribed by the Code for the
offense.

Elsewise stated, by the adoption of the penalties provided for in the Revised Penal Code for the
offenses penalized under the Dangerous Drugs Act (R.A. No. 6425), as amended, the latter offenses
would now be considered as punished under the Revised Penal Code for purposes of the
Indeterminate Sentence Law.

Section 1 of the Indeterminate Sentence Law (Act. No. 4103, as amended by Act. No. 4225 and R.A.
No. 4203) also provides that:

if the offense is punished by any other law, the court shall sentence the accused to an
indeterminate sentence, the maximum term of which shall not exceed the maximum
fixed by said law and the minimum shall not be less than the minimum prescribed by the
same (Emphasis supplied).

There are, therefore, two categories of offenses which should be taken into account in the application
of the Indeterminate Sentence Law: (1) offenses punished by the Revised Penal Code, and (2)
offenses punished by other laws (or special laws).

The offenses punished by the Revised Penal Code are those defined and penalized in Book II
thereof, which is thus appropriately titled CRIMES AND PENALTIES. To simplify further, a crime is
deemed punished under the Revised Penal Code if it is defined by it, and none other, as a crime and
is punished by a penalty which is included in the classification of Penalties in Chapter II, Title III of
Book I thereof.

On the other hand, an offense is considered punished under any other law (or special law) if it is not
defined and penalized by the Revised Penal Code but by such other law.
 59

It is thus clear that an offense is punished by the Revised Penal Code if both its definition and the
penalty therefor are found in the said Code, and it is deemed punished by a special law if its definition
and the penalty therefor are found in the special law. That the latter imports or borrows from the
Revised Penal Code its nomenclature of penalties does not make an offense in the special law
punished by or punishable under the Revised Penal Code. The reason is quite simple. It is still the
special law that defines the offense and imposes a penalty therefor, although it adopts the Code's
nomenclature of penalties. In short, the mere use by a special law of a penalty found in the Revised
Penal Code can by no means make an offense thereunder an offense "punished or punishable" by
the Revised Penal Code.

Thus, I cannot subscribe to the view that since R.A. No. 7659 had adopted the penalties prescribed
by the Revised Penal Code in drug cases, offenses related to drugs should now be considered as
punished under the Revised Penal Code. If that were so, then we are also bound, ineluctably, to
declare that such offenses are mala in se and to apply the Articles of the Revised Penal Code
regarding the stages of a felony (Article 6), the nature of participation (Article 16), accessory penalties
(Articles 40-45), application of penalties to principals, accomplices, and accessories (Article 46 et
seq.), complex crimes (Article 48), and graduation of penalties (Article 61), among others. We cannot
do otherwise without being drawn to an inconsistent posture which is extremely hard to justify.

I respectfully submit then that the adoption by the Dangerous Drugs Act of the penalties in the
Revised Penal Code does not make an offense under the Dangerous Drugs Act an offense punished
by the Revised Penal Code. Consequently, where the proper penalty to be imposed under Section 20
of the Dangerous Drugs Act is prision correccional, then, applying the Indeterminate Sentence Law,
the indeterminate sentence to be meted on the accused should be that whose minimum should not
be less than the minimum prescribed by the special law (the Dangerous Drugs Act), i.e., not lower
than six (6) months and one (1) day of prision correccional.

II

The majority opinion holds the view that while the penalty provided for in Section 20 of the Dangerous
Drugs Act is a complex one composed of three distinct penalties, viz., prision correccional, prision
mayor, and reclusion temporal, and that pursuant to Article 77 of the Revised Penal Code, each
should form a period, with the lightest of them being the minimum, the next as the medium, and the
most severe as the maximum, yet, considering that under the said second paragraph of Section 20
the penalty depends on the quantity of the drug subject of the criminal transaction, then by way of
exception to Article 77 of the Revised Penal Code and to subserve the purpose of Section 20, as
amended, each of the aforesaid component penalties shall be considered as a principal penalty
depending on the quantity of the drug involved. Thereafter, applying the modifying circumstances
pursuant to Article 64 of the Revised Penal Code, the proper period of the component penalty shall
then be fixed.

To illustrate, if the quantity of the drugs involved (e.g., marijuana below 250 grams) the proper
principal penalty should be prision correccional, but there is one mitigating and no aggravating
circumstance, then the penalty to be imposed should be prision correccional in its minimum period.
Yet, the majority opinion puts a limit to such a rule. It declares:

The Court rules, therefore, that while modifying circumstances may be appreciated to
determine the periods of the corresponding penalties, or even reduce the penalty by
degrees, in no case should such graduation of penalties reduce the imposable penalty
beyond or lower than
prision correccional. It is for this reason that the three component penalties in the
second paragraph of Section 20 shall each be considered as an independent principal
 60

penalty, and that the lowest penalty should in any event be prision correccional in order
to depreciate the seriousness of drug offenses.

Simply put, this rule would allow the reduction from reclusion
temporal — if it is the penalty to be imposed on the basis of the quantity of the drugs involved — by
two degrees, or to prision correccional, if there are two or more mitigating circumstances and no
aggravating circumstance is present (paragraph 5, Article 64, Revised Penal Code) or if there is a
privileged mitigating circumstances of, say, minority (Article 68, Revised Penal Code), or under
circumstances covered by Article 69 of the Revised Penal Code. Yet, if the proper penalty to be
imposed is prision mayor, regardless of the fact that a reduction by two degrees is proper, it should
only be reduced by one degree because the rule does not allow a reduction beyond prision
correccional. Finally, if the proper penalty to be imposed is prision correccional, no reduction at all
would be allowed.

I find the justification for the rule to be arbitrary and unfair. It is arbitrary because within the same
second paragraph involving the same range of penalty, we both allow and disallow the application of
Article 64(5), Article 68, and Article 69 of the Revised Penal Code. The reason for the disallowance,
viz., in order not to depreciate the seriousness of drug offenses, is unconvincing because Section 20
of the Dangerous Drugs Act, as amended by R.A.
No. 7659, has in fact "depreciated" the seriousness of drug offenses by providing quantity as basis for
the determination of the proper penalty and limiting fine only to cases punishable by reclusion
perpetua to death. It is unfair because an accused who is found guilty of possessing MORE
dangerous
drugs — say 500 to 749 grams of marijuana, in which case the penalty to be imposed would be
reclusion temporal — may only be sentenced to six (6) months and one (1) day of prision correccional
minimum because of privileged mitigating circumstances. Yet, an accused who is found guilty of
possession of only one (1) gram of marijuana — in which case the penalty to be imposed is prision
correccional — would not be entitled to a reduction thereof even if he has the same number of
privileged mitigating circumstances as the former has.

Also, if the privileged mitigating circumstance happens to be the minority of the accused, then he is
entitled to the reduction of the penalty as a matter of right pursuant to Article 68 of the Revised Penal
Code, which reads:

Art. 68. Penalty to be imposed upon a person under eighteen years of age. — When the
offender is a minor under eighteen years and his case is one coming under the
provisions of the paragraph next to the last of Article 80 of this Code, the following rules
shall be observed:

1. Upon a person under fifteen but over nine years of age, who is not
exempted from liability by reason of the court having declared that he
acted with discernment, a discretionary penalty shall be imposed, but
always lower by two degrees at least than that prescribed by law for the
crime which he committed.

2. Upon a person over fifteen and under eighteen years of age the penalty
next lover than that prescribed by law shall be imposed, but always in the
proper period.

I do not think that as to the second paragraph of Section 20 of the Dangerous Drugs Act, as amended
by Section 17 of R.A. No. 7659, we can be at liberty to apply the Revised Penal Code in one aspect
and not to apply it in another.
 61

Feliciano and Quiason, JJ., concur.

# Separate Opinions

DAVIDE, JR., J., concurring and dissenting:

I am still unable to agree with the view that (a) in appropriate cases where the penalty to be imposed
would be prision correccional pursuant to the second paragraph of Section 20 of R.A. No. 6425, as
amended by Section 17 of R.A. No. 7659, the sentence to be meted out, applying the Indeterminate
Sentence Law (Act No. 4103, as amended), should be that whose minimum is within the range of the
penalty next lower, i.e., arresto mayor; and (b) the presence of two or more mitigating circumstances
not offset by any mitigating circumstances or of a privileged mitigating circumstance shall not reduce
the penalty by one or two degrees if the penalty to be imposed, taking into account the quantity of the
dangerous drugs involved, would be prision correccional.

The first view is based on the proposition that since R.A. No. 7659 had unqualifiedly adopted the
penalties under the Revised Penal Code in their technical terms, hence also their technical
signification and effects, then what should govern is the first part of Section 1 of the Indeterminate
Sentence Law which directs that:

in imposing a prison sentence for an offense punished by the Revised Penal Code, or
its amendments, the court shall sentence the accused to an indeterminate sentence the
maximum term of which shall be that which, in view of the attending circumstances,
could be properly imposed under the rules of the said Code, and the minimum which
shall be within the range of the penalty next lower to that prescribed by the Code for the
offense.

Elsewise stated, by the adoption of the penalties provided for in the Revised Penal Code for the
offenses penalized under the Dangerous Drugs Act (R.A. No. 6425), as amended, the latter offenses
would now be considered as punished under the Revised Penal Code for purposes of the
Indeterminate Sentence Law.

Section 1 of the Indeterminate Sentence Law (Act. No. 4103, as amended by Act. No. 4225 and R.A.
No. 4203) also provides that:

if the offense is punished by any other law, the court shall sentence the accused to an
indeterminate sentence, the maximum term of which shall not exceed the maximum
fixed by said law and the minimum shall not be less than the minimum prescribed by the
same (Emphasis supplied).

There are, therefore, two categories of offenses which should be taken into account in the application
of the Indeterminate Sentence Law: (1) offenses punished by the Revised Penal Code, and (2)
offenses punished by other laws (or special laws).

The offenses punished by the Revised Penal Code are those defined and penalized in Book II
thereof, which is thus appropriately titled CRIMES AND PENALTIES. To simplify further, a crime is
deemed punished under the Revised Penal Code if it is defined by it, and none other, as a crime and
 62

is punished by a penalty which is included in the classification of Penalties in Chapter II, Title III of
Book I thereof.

On the other hand, an offense is considered punished under any other law (or special law) if it is not
defined and penalized by the Revised Penal Code but by such other law.

It is thus clear that an offense is punished by the Revised Penal Code if both its definition and the
penalty therefor are found in the said Code, and it is deemed punished by a special law if its definition
and the penalty therefor are found in the special law. That the latter imports or borrows from the
Revised Penal Code its nomenclature of penalties does not make an offense in the special law
punished by or punishable under the Revised Penal Code. The reason is quite simple. It is still the
special law that defines the offense and imposes a penalty therefor, although it adopts the Code's
nomenclature of penalties. In short, the mere use by a special law of a penalty found in the Revised
Penal Code can by no means make an offense thereunder an offense "punished or punishable" by
the Revised Penal Code.

Thus, I cannot subscribe to the view that since R.A. No. 7659 had adopted the penalties prescribed
by the Revised Penal Code in drug cases, offenses related to drugs should now be considered as
punished under the Revised Penal Code. If that were so, then we are also bound, ineluctably, to
declare that such offenses are mala in se and to apply the Articles of the Revised Penal Code
regarding the stages of a felony (Article 6), the nature of participation (Article 16), accessory penalties
(Articles 40-45), application of penalties to principals, accomplices, and accessories (Article 46 et
seq.), complex crimes (Article 48), and graduation of penalties (Article 61), among others. We cannot
do otherwise without being drawn to an inconsistent posture which is extremely hard to justify.

I respectfully submit then that the adoption by the Dangerous Drugs Act of the penalties in the
Revised Penal Code does not make an offense under the Dangerous Drugs Act an offense punished
by the Revised Penal Code. Consequently, where the proper penalty to be imposed under Section 20
of the Dangerous Drugs Act is prision correccional, then, applying the Indeterminate Sentence Law,
the indeterminate sentence to be meted on the accused should be that whose minimum should not
be less than the minimum prescribed by the special law (the Dangerous Drugs Act), i.e., not lower
than six (6) months and one (1) day of prision correccional.

II

The majority opinion holds the view that while the penalty provided for in Section 20 of the Dangerous
Drugs Act is a complex one composed of three distinct penalties, viz., prision correccional, prision
mayor, and reclusion temporal, and that pursuant to Article 77 of the Revised Penal Code, each
should form a period, with the lightest of them being the minimum, the next as the medium, and the
most severe as the maximum, yet, considering that under the said second paragraph of Section 20
the penalty depends on the quantity of the drug subject of the criminal transaction, then by way of
exception to Article 77 of the Revised Penal Code and to subserve the purpose of Section 20, as
amended, each of the aforesaid component penalties shall be considered as a principal penalty
depending on the quantity of the drug involved. Thereafter, applying the modifying circumstances
pursuant to Article 64 of the Revised Penal Code, the proper period of the component penalty shall
then be fixed.

To illustrate, if the quantity of the drugs involved (e.g., marijuana below 250 grams) the proper
principal penalty should be prision correccional, but there is one mitigating and no aggravating
circumstance, then the penalty to be imposed should be prision correccional in its minimum period.
Yet, the majority opinion puts a limit to such a rule. It declares:
 63

The Court rules, therefore, that while modifying circumstances may be appreciated to
determine the periods of the corresponding penalties, or even reduce the penalty by
degrees, in no case should such graduation of penalties reduce the imposable penalty
beyond or lower than
prision correccional. It is for this reason that the three component penalties in the
second paragraph of Section 20 shall each be considered as an independent principal
penalty, and that the lowest penalty should in any event be prision correccional in order
to depreciate the seriousness of drug offenses.

Simply put, this rule would allow the reduction from reclusion
temporal — if it is the penalty to be imposed on the basis of the quantity of the drugs involved — by
two degrees, or to prision correccional, if there are two or more mitigating circumstances and no
aggravating circumstance is present (paragraph 5, Article 64, Revised Penal Code) or if there is a
privileged mitigating circumstances of, say, minority (Article 68, Revised Penal Code), or under
circumstances covered by Article 69 of the Revised Penal Code. Yet, if the proper penalty to be
imposed is prision mayor, regardless of the fact that a reduction by two degrees is proper, it should
only be reduced by one degree because the rule does not allow a reduction beyond prision
correccional. Finally, if the proper penalty to be imposed is prision correccional, no reduction at all
would be allowed.

I find the justification for the rule to be arbitrary and unfair. It is arbitrary because within the same
second paragraph involving the same range of penalty, we both allow and disallow the application of
Article 64(5), Article 68, and Article 69 of the Revised Penal Code. The reason for the disallowance,
viz., in order not to depreciate the seriousness of drug offenses, is unconvincing because Section 20
of the Dangerous Drugs Act, as amended by R.A.
No. 7659, has in fact "depreciated" the seriousness of drug offenses by providing quantity as basis for
the determination of the proper penalty and limiting fine only to cases punishable by reclusion
perpetua to death. It is unfair because an accused who is found guilty of possessing MORE
dangerous
drugs — say 500 to 749 grams of marijuana, in which case the penalty to be imposed would be
reclusion temporal — may only be sentenced to six (6) months and one (1) day of prision correccional
minimum because of privileged mitigating circumstances. Yet, an accused who is found guilty of
possession of only one (1) gram of marijuana — in which case the penalty to be imposed is prision
correccional — would not be entitled to a reduction thereof even if he has the same number of
privileged mitigating circumstances as the former has.

Also, if the privileged mitigating circumstance happens to be the minority of the accused, then he is
entitled to the reduction of the penalty as a matter of right pursuant to Article 68 of the Revised Penal
Code, which reads:

Art. 68. Penalty to be imposed upon a person under eighteen years of age. — When the
offender is a minor under eighteen years and his case is one coming under the
provisions of the paragraph next to the last of Article 80 of this Code, the following rules
shall be observed:

1. Upon a person under fifteen but over nine years of age, who is not
exempted from liability by reason of the court having declared that he
acted with discernment, a discretionary penalty shall be imposed, but
always lower by two degrees at least than that prescribed by law for the
crime which he committed.
 64

2. Upon a person over fifteen and under eighteen years of age the penalty
next lover than that prescribed by law shall be imposed, but always in the
proper period.

I do not think that as to the second paragraph of Section 20 of the Dangerous Drugs Act, as amended
by Section 17 of R.A. No. 7659, we can be at liberty to apply the Revised Penal Code in one aspect
and not to apply it in another.
 65

G.R. No. 125297 June 6, 2003

ELVIRA YU OH, petitioner,

vs.
COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.

AUSTRIA-MARTINEZ, J.:

Before this Court is a petition for review on certiorari of the decision1 of the Court of Appeals in CA-
G.R. No. CR No. 16390, promulgated on January 30, 1996, affirming the conviction of petitioner
Elvira Yu Oh by the Regional Trial Court (RTC), Branch 99, Quezon City and the resolution dated
May 30, 1996 which denied her motion for reconsideration.

The facts as borne by the records are as follows:

Petitioner purchased pieces of jewelry from Solid Gold International Traders, Inc., a company
engaged in jewelry trading. Due to her failure to pay the purchase price, Solid Gold filed civil cases 2
against her for specific performance before the Regional Trial Court of Pasig. On September 17,
1990, petitioner and Solid Gold, through its general manager Joaquin Novales III, entered into a
compromise agreement to settle said civil cases.3 The compromise agreement, as approved by the
trial court, provided that petitioner shall issue a total of ninety-nine post-dated checks in the amount of
P50,000.00 each, dated every 15th and 30th of the month starting October 1, 1990 and the balance of
over P1 million to be paid in lump sum on November 16, 1994 which is also the due date of the 99 th
and last postdated check. Petitioner issued ten checks at P50,000.00 each, for a total of
P500,000.00, drawn against her account at the Equitable Banking Corporation (EBC), Grace Park,
Caloocan City Branch. Novales then deposited each of the ten checks on their respective due dates
with the Far East Bank and Trust Company (FEBTC). However, said checks were dishonored by EBC
for the reason "Account Closed." Dishonor slips were issued for each check that was returned to
Novales.4

On October 5, 1992, Novales filed ten separate Informations, docketed as Criminal Cases Nos. 92-
26243 to 92-36252 before the RTC of Quezon City charging petitioner with violation of Batas
Pambansa Bilang 22, otherwise known as the Bouncing Checks Law. 5 Except for the dates and the
check numbers, the Informations uniformly allege:

That on or about the … in Quezon City, Philippines, the said accused did then and there
willfully, unlawfully and feloniously make or draw and issue to JOAQUIN P. LOVALES III to
apply on account or for value Equitable Banking Corp. Grace Park Caloocan Branch Check
No. … dated … payable to SOLID GOLD INTERNATIONAL TRADERS, INC. in the amount of
P50,000.00, Philippine Currency, said accused well knowing that at the time of issue
she/he/they did not have sufficient funds in or credit with the drawee bank for payment of such
check in full upon its presentment, which check when presented for payment was
subsequently dishonored by the drawee bank for insufficiency of funds/Account Closed and
despite receipt of notice of such dishonor, said accused failed to pay said SOLID GOLD
INTERNATIONAL TRADERS, INC. the amount of said check or to make arrangement for full
payment of the same within five (5) banking days after receiving said notice.

CONTRARY TO LAW.6

The cases were consolidated and subsequently raffled to Branch 99 of the said RTC. Upon
arraignment, accused pleaded not guilty.7 Trial then ensued. On December 22, 1993, the RTC
rendered its decision, the dispositive portion of which reads:
 66

WHEREFORE, this Court finds the accused GUILTY of ten counts of violation of BP 22 and
hereby sentences her to a penalty of one year imprisonment for each count, or a total of ten
years, to be served in accordance with the limitation prescribed in par. 4, Article 70 of the
Revised Penal Code and to indemnify complainant the amount of the checks in their totality, or
in the amount of P500,000.00.

SO ORDERED.8

Petitioner appealed to the Court of Appeals alleging that: the RTC has no jurisdiction over the offense
charged in the ten informations; it overlooked the fact that no notice of dishonor had been given to the
appellant as drawer of the dishonored checks; it failed to consider that the reason of "closed account"
for the dishonor of the ten checks in these cases is not the statutory cause to warrant prosecution,
much more a conviction, under B.P. Blg. 22; it failed to consider that there is only one act which
caused the offense, if any, and not ten separate cases; and it disregarded the definition of what a
'check' is under Sec. 185 of the Negotiable Instruments Law. 9

Finding the appeal to be without merit, the Court of Appeals affirmed the decision of the trial court
with costs against appellant.

Hence, herein petition raising the following errors:

THAT THE COURT OF APPEALS ERRED IN NOT RESOLVING THE JURISDICTIONAL

ISSUE IN FAVOR OF THE ACCUSED-APPELLANT BY UNJUSTLY DEPRIVING HER OF
THE LEGAL BENEFITS OF GIVING RETROACTIVE EFFECT TO THE PROVISIONS OF
R.A. NO. 7691 EXPANDING THE JURISDICTION OF THE INFERIOR COURTS TO COVER
THE OFFENSES INVOLVED IN THESE CASES PURSUANT TO ART. 22 OF THE REVISED
PENAL CODE, THUS IN EFFECT RENDERING THE JUDGMENT OF CONVICTION
PROMULGATED BY THE TRIAL COURT BELOW AND AFFIRMED BY THE COURT OF
APPEALS PATENTLY NULL AND VOID FOR HAVING BEEN RENDERED WITHOUT OR IN
EXCESS OF JURISDICTION.

II

THAT THE COURT OF APPEALS ERRED IN NOT RESOLVING IN FAVOR OF ACCUSED-

APPELLANT THE FACT THAT NO NOTICE OF DISHONOR HAD BEEN GIVEN HER AS
DRAWER OF THE DISHONORED "CHECKS" PURSUANT TO THE REQUIREMENT
EXPRESSLY PROVIDED UNDER BATAS PAMBANSA BILANG 22.

III

THAT THE COURT OF APPEALS ERRED IN CONSTRUING THE PROVISIONS OF BATAS

PAMBANSA BILANG 22 CONTRARY TO THE WELL-ESTABLISHED RULE OF STATUTORY
CONSTRUCTION THAT "PENAL STATUTES, SUBSTANTIVE AND REMEDIAL OR
PROCEDURAL, ARE, BY THE CONSECRATED RULE, CONSTRUED STRICTLY AGAINST
THE STATE, OR LIBERALLY IN FAVOR OF THE ACCUSED" AND THAT "IT IS ALWAYS
THE DUTY OF THE COURT TO RESOLVE THE CIRCUMSTANCES OF EVIDENCE UPON A
THEORY OF INNOCENCE RATHER THAN UPON A THEORY OF GUILT WHERE IT IS
POSSIBLE TO DO SO", AND IN SO DOING THE DECISION APPEALED FROM INDULGED
ITSELF IN "JUDICIAL LEGISLATION" TO FAVOR THE PROSECUTION AND TO WORK
GRAVE INJUSTICE TO THE ACCUSED.
 67

Simply worded, the issues of this case may be stated as follows: (1) whether or not the appellate
court erred in not granting retroactive effect to Republic Act No. 769110 in view of Art. 22 of the
Revised Penal Code (RPC); (2) whether or not notice of dishonor is dispensable in this case; and (3)
whether or not the appellate court erred in construing B.P. Blg. 22.

We will resolve the first and third issues before considering the second issue.

First issue – Whether or not the Court of Appeals erred in not giving retroactive effect to R.A. 7690 in
view of Article 22 of the RPC.

Petitioner argues that: the failure of the appellate court to give retroactive application to R.A. 7691 is a
violation of Art. 22 of the Revised Penal Code which provides that penal laws shall have retroactive
effect insofar as they favor the person guilty of the felony; R.A. 7691 is a penal law in the sense that it
affects the jurisdiction of the court to take cognizance of criminal cases; taken separately, the offense
covered by each of the ten Informations in this case falls within the exclusive original jurisdiction of
the Municipal Trial Court under Sec. 2 of R.A. 7691; and the Court of Appeals is guilty of judicial
legislation in stating that after the arraignment of petitioner, said cases could no longer be transferred
to the MTC without violating the rules on double jeopardy, because that is not so provided in R.A.
7691.11

The Solicitor General, in its Comment, counters that the arguments of petitioner are baseless
contending that: penal laws are those which define crimes and provides for their punishment; laws
defining the jurisdiction of courts are substantive in nature and not procedural for they do not refer to
the manner of trying cases but to the authority of the courts to hear and decide certain and definite
cases in the various instances of which they are susceptible; R.A. No. 7691 is a substantive law and
not a penal law as nowhere in its provisions does it define a crime neither does it provide a penalty of
any kind; the purpose of enacting R.A. No. 7691 is laid down in the opening sentence thereof as "An
Act Expanding the Jurisdiction of the Municipal Trial Courts, Municipal Circuit Trial Courts and the
Metropolitan Trial Court" whereby it reapportions the jurisdiction of said courts to cover certain civil
and criminal case, erstwhile tried exclusively by the Regional Trial Courts; consequently, Art. 22 of
the RPC finds no application to the case at bar; jurisdiction is determined by the law in force at the
time of the filing of the complaint, and once acquired, jurisdiction is not affected by subsequent
legislative enactments placing jurisdiction in another tribunal; in this case, the RTC was vested with
jurisdiction to try petitioner's cases when the same were filed in October 1992; at that time, R.A. No.
7691 was not yet effective;12 in so far as the retroactive effect of R.A. No. 7691 is concerned, that
same is limited only to pending civil cases that have not reached pre-trial stage as provided for in
Section 7 thereof and as clarified by this Court in People vs. Yolanda Velasco13, where it was held:
"[a] perusal of R.A. No. 7691 will show that its retroactive provisions apply only to civil cases that
have not yet reached the pre-trial stage. Neither from an express proviso nor by implication can it be
understood as having retroactive application to criminal cases pending or decided by the RTC prior to
its effectivity."14

On this point, the Court fully agrees with the Solicitor General and holds that Article 22 of the Revised
Penal Code finds no application to the case at bar.

Said provision reads:

ART. 22. Retroactive effect of penal laws. – Penal laws shall have a retroactive effect insofar
as they favor the person guilty of a felony, who is not a habitual criminal, as this term is defined
in Rule 5 of Article 62 of this Code, although at the time of the publication of such laws a final
sentence has been pronounced and the convict is serving sentence.
 68

A penal law, as defined by this Court, is an act of the legislature that prohibits certain acts and
establishes penalties for its violations. It also defines crime, treats of its nature and provides for its
punishment.15 R.A. No. 7691 does not prohibit certain acts or provides penalties for its violation;
neither does it treat of the nature of crimes and its punishment. Consequently, R.A. No. 7691 is not a
penal law, and therefore, Art. 22 of the RPC does not apply in the present case.

B. P. Blg. 22, which took effect on April 24, 1979, provides the penalty of imprisonment of not less
than thirty days but not more than one year or by a fine of not less than but not more then double the
amount of the check which fine shall in no case exceed P200,000.00, or both such fine and
imprisonment at the discretion of the court.

R.A. No. 7691 which took effect on June 15, 1994, amended B.P. Blg. 129, and vested on the
Metropolitan, Municipal and Municipal Circuit Trial Courts jurisdiction to try cases punishable by
imprisonment of not more than six (6) years.16 Since R.A. No. 7691 vests jurisdiction on courts, it is
apparent that said law is substantive.17

In the case of Cang vs. Court of Appeals,18 this Court held that "jurisdiction being a matter of
substantive law, the established rule is that the statute in force at the time of the commencement of
the action determines the jurisdiction of the court."19 R.A. No. 7691 was not yet in force at the time of
the commencement of the cases in the trial court. It took effect only during the pendency of the
appeal before the Court of Appeals.20 There is therefore no merit in the claim of petitioner that R.A.
No. 7691 should be retroactively applied to this case and the same be remanded to the MTC. The
Court has held that a "law vesting additional jurisdiction in the court cannot be given retroactive
effect."21

Third issue – Whether or not the Court of Appeals erroneously construed B.P. Blg. 22.

Petitioner insists that: penal statutes must be strictly construed and where there is any reasonable
doubt, it must always be resolved in favor of the accused; 22 the Court of Appeals, in construing that
B.P. Blg. 22 embraces cases of "no funds" or "closed accounts" when the express language of B.P.
Blg. 22 penalizes only the issuance of checks that are subsequently dishonored by the drawee bank
for "insufficiency" of funds or credit, has enlarged by implication the meaning of the statute which
amounts to judicial legislation;23 a postdated check, not being drawn payable on demand, is
technically not a special kind of a bill of exchange, called check, but an ordinary bill of exchange
payable at a fixed date, which is the date indicated on the face of the postdated check, hence, the
instrument is still valid and the obligation covered thereby, but only civilly and not criminally; 24 the trial
court also erroneously cited a portion in the case of Lozano vs. Martinez25 that the "language of B.P.
Blg. 22 is broad enough to cover all kinds of checks, whether present dated or postdated, or whether
issued in payment of pre-existing obligations or given in mutual or simultaneous exchange for
something of value," since the same is mere obiter dictum;26 in the interpretation of the meaning of a
"check", where the law is clear and unambiguous, the law must be taken as it is, devoid of judicial
addition or subtraction.27

The Solicitor General counters that a postdated check is still a check and its being a postdated
instrument does not necessarily make it a bill of exchange "payable at a fixed or determinable future
time" since it is still paid on demand on the date indicated therein or thereafter just like an ordinary
check.28 It also points out that the doctrine laid down in Lozano vs. Martinez was reiterated in People
vs. Nitafan,29 hence, it can no longer be argued that the statement in the case of Lozano regarding
the scope of "checks" is mere obiter dictum.

Again, we agree with the Solicitor General and find petitioner's claim to be without merit.
 69

The rationale behind B.P. Blg. 22 was initially explained by the Court in the landmark case of Lozano
vs. Martinez30 where we held that:

The gravamen of the offense punished by B.P. Blg. 22 is the act of making and issuing a
worthless check or a check that is dishonored upon its presentation for payment … The thrust
of the law is to prohibit, under pain of penal sanctions, the making or worthless checks and
putting them in circulation. Because of its deleterious effects on the public interest, the practice
is proscribed by law. The law punished the act not as an offense against property, but an
offense against public order.31

...

The effects of the issuance of a worthless check transcend the private interests of the parties
directly involved in the transaction and touches the interests of the community at large. The
mischief it creates is not only a wrong to the payee or holder but also an injury to the public.
The harmful practice of putting valueless commercial papers in circulation, multiplied a
thousandfold, can very well pollute the channels of trade and commerce, injure the banking
system and eventually hurt the welfare of society and the public interest. 32

The same is reiterated in Cueme vs. People33 where we pronounced that:

. . . B.P. Blg. 22 was purposely enacted to prevent the proliferation of worthless checks in the
mainstream of daily business and to avert not only the undermining of the banking system of
the country but also the infliction of damage and injury upon trade and commerce occasioned
by the indiscriminate issuances of such checks. By its very nature, the offenses defined under
B.P. Blg. 22 are against public interest.34

In Recuerdo vs. People, this Court also held that the terms and conditions surrounding the issuance
of the checks are irrelevant since its primordial intention is to ensure the stability and commercial
value of checks as being virtual substitutes for currency. 35

Petitioner's claim that cases of "closed accounts" are not included in the coverage of B.P. Blg. 22 has
no merit considering the clear intent of the law, which is to discourage the issuance of worthless
checks due to its harmful effect to the public. This Court, in Lozano vs. Martinez, was explicit in ruling
that the language of B.P. Blg. 22 is broad enough to cover all kinds of checks, whether present dated
or postdated, or whether issued in payment of pre-existing obligations or given in mutual or
simultaneous exchange for something of value.36

In People vs. Nitafan,37 the Supreme Court reiterated this point and held that:

B.P. Blg. 22 … does not distinguish but merely provides that "[any person who makes or draws
and issues any check knowing at the time of issue that he does not have sufficient funds in or
credit with the drawee bank … which check is subsequently dishonored … shall be punished
by imprisonment … Ubi lex non distinguit nec nos distinguere debemus.

But even if We retrace the enactment of the "Bouncing Check Law" to determine the
parameters of the concept of "check", we can easily glean that the members of the then
Batasang Pambansa intended it to be comprehensive as to include all checks drawn against
banks.38
 70

In this light, it is easy to see that the claim of petitioner that B.P. Blg. 22 does not include 'postdated
checks' and cases of 'closed accounts' has no leg to stand on. The term "closed accounts" is within
the meaning of the phrase "does not have sufficient funds in or credit with the drawee bank".

Anent the second issue: whether or not notice of dishonor is dispensable in the case at bar. Petitioner
failed to show any cogent reason for us to disturb the findings of the RTC and the Court of Appeals.

B.P. Blg. 22 or the Bouncing Check's Law seeks to prevent the act of making and issuing checks with
the knowledge that at the time of issue, the drawer does not have sufficient funds in or credit with the
bank for payment and the checks were subsequently dishonored upon presentment. 39 To be
convicted thereunder, the following elements must be proved:

1. The accused makes, draws or issues any check to apply to account or for value;

2. The accused knows at the time of the issuance that he or she does not have sufficient funds
in, or credit with, the drawee bank for the payment of the check in full upon its presentment;
and

3. The check is subsequently dishonored by the drawee bank for insufficiency of funds or
credit or it would have been dishonored for the same reason had not the drawer, without any
valid reason, ordered the bank to stop payment. 40

For liability to attach under B.P. Blg. 22, it is not enough that the prosecution establishes that checks
were issued and that the same were subsequently dishonored. The prosecution must also prove that
the issuer, at the time of the check's issuance, had knowledge that he did not have enough funds or
credit in the bank of payment thereof upon its presentment.41

Since the second element involves a state of mind which is difficult to establish, Section 2 of B.P. Blg.
22 created a prima facie presumption of such knowledge, as follows:

SEC. 2. Evidence of knowledge of insufficient funds. – The making, drawing and issuance of a
check payment of which is refused by the drawee because of insufficient funds in or credit with
such bank, when presented within ninety (90) days from the date of the check, shall be prima
facie evidence of knowledge of such insufficiency of funds or credit unless such maker or
drawer pays the holder thereof the amount due thereon, or makes arrangements for payment
in full by the drawee of such check within five (5) banking days after receiving notice that such
check has not been paid by the drawee.

Based on this section, the presumption that the issuer had knowledge of the insufficiency of funds is
brought into existence only after it is proved that the issuer had received a notice of dishonor and that
within five days from receipt thereof, he failed to pay the amount of the check or to make arrangement
for its payment.42 The presumption or prima facie evidence as provided in this section cannot arise, if
such notice of non-payment by the drawee bank is not sent to the maker or drawer, or if there is no
proof as to when such notice was received by the drawer, since there would simply be no way of
reckoning the crucial 5-day period.43

In this case, it is not disputed that checks were issued by petitioner and said checks were
subsequently dishonored. The question however is, was petitioner furnished a notice of dishonor? If
not, is it sufficient justification to exonerate petitioner from her criminal and civil liabilities for issuing
the bouncing checks?

The trial court ruled that the second element is present because:
 71

… the accused knew at the time of issuance of the checks that she did not have sufficient
funds in or credit with her drawee bank for the payment of the checks in full upon their
presentment [as admitted by her in the Counter-Affidavit she executed during the preliminary
investigation of these criminal cases (itals. ours), to wit:

4. That the time of the issuance of the said checks, due notice and information had
been so given to Solid Gold anent the actual status of the checks that the same might
not be able to cover the amount of the said checks so stated therein … (Exhibit "N", "1",
underscoring supplied).

This fact became evident again during the cross-examination by the accused's counsel of the
prosecution's witness, Joaquin Novales III:

ATTY. TAGANAS:

Q: And the reason you agreed to the terms and conditions for the issuance of post-dated
checks because you are also aware the particular time the accused Mrs. Elvira Yu Oh did not
also have enough funds or money in the bank within which to cover the amount of the checks?

A: I am not aware, sir.

...

Q: To your knowledge when the accused had already admitted to you that she had not enough
money to pay you?

A: That is the terms and promise and agreed upon, sir.

Q: But inspite of the fact that she already told you about that, that you never suspected that
she did not have enough money to cover the checks agreed upon and issued to you?

A: Yes, sir.

Q: And inspite of the fact she told you you never suspected that she did not have enough
money to cover you . . .

Q: You still believe that although she does not have enough money she still issued checks to
you?

A: Yes, sir. (TSN, April 6, 1993, pp. 24-26)

At any rate, there is already prima facie evidence of knowledge of insufficiency of funds on the
part of the accused from her failure to pay the amount due on the checks or to make
arrangements for payment in full by the drawee bank within five banking days after she
received notice of their dishonor, each of the checks having been presented within ninety days
from their respective dated (B.P. Blg. 22, Sec. 2). The defense did not controvert this evidence.
(itals. ours)44

Although the trial court in its decision, mentioned that herein petitioner received notices of dishonor,
nowhere in the records is there proof that the prosecution ever presented evidence that petitioner
received or was furnished a notice of dishonor. The notices of dishonor that were presented in court
 72

and marked as Exhibits "D-2", "E-2", "F-2", "G-2", "H-2", "I-2", "J-2", "K-2", "L-2", "C-2"45 were all sent
to the private complainant, Solid Gold, and not to petitioner. In convicting petitioner, the trial court,
gave probative weight on the admission of petitioner in her Counter-Affidavit which she submitted
during the preliminary investigation that at the time of issuance of the subject checks, she was aware
and even told private complainant that the checks might not be able to cover the amount stated
therein.

The Court of Appeals sustained the RTC, to wit:

. . . Neither can We agree that accused-appellant was still entitled to notice of dishonor of the
bouncing checks as she had no more checking account with the drawee bank at the time of
the dishonor of the ten checks in question. Accused-appellant must have realized that by
closing her checking account after issuing the ten postdated checks, all of said checks would
bounce. Knowing that she had already closed her checking account with the drawee bank,
certainly accused-appellant would not have expected, even in her wildest imagination, that her
postdated checks would be honored by the drawee bank. Thus, accused-appellant need not
be notified anymore of the obvious dishonor of her rubber checks. (itals. ours) 46

Based on the law and existing jurisprudence, we find that the appellate court erred in convicting
petitioner.

In cases for violation of B.P. Blg. 22, it is necessary that the prosecution prove that the issuer had
received a notice of dishonor. Since service of notice is an issue, the person alleging that the notice
was served must prove the fact of service. Basic also is the doctrine that in criminal cases, the
quantum of proof required is proof beyond reasonable doubt. Hence, for cases of B.P. Blg. 22 there
should be clear proof of notice.47

Indeed, this requirement cannot be taken lightly because Section 2 provides for an opportunity for the
drawer to effect full payment of the amount appearing on the check, within five banking days from
notice of dishonor. The absence of said notice therefore deprives an accused of an opportunity to
preclude criminal prosecution. In other words, procedural due process demands that a notice of
dishonor be actually served on petitioner. In the case at bar, appellant has a right to demand – and
the basic postulate of fairness requires – that the notice of dishonor be actually sent to and received
by her to afford her to opportunity to aver prosecution under B.P. Blg. 22. 48

The Solicitor General contends that notice of dishonor is dispensable in this case considering that the
cause of the dishonor of the checks was "Account Closed" and therefore, petitioner already knew that
the checks will bounce anyway. This argument has no merit. The Court has decided numerous cases
where checks were dishonored for the reason, "Account Closed" 49 and we have explicitly held in said
cases that "it is essential for the maker or drawer to be notified of the dishonor of her check, so she
could pay the value thereof or make arrangements for its payment within the period prescribed by
law"50 and omission or neglect on the part of the prosecution to prove that the accused received such
notice of dishonor is fatal to its cause.51

A perusal of the testimony of the prosecution witness Joaquin Novales III, General Manager of
complainant Solid Gold, discloses that no personal demands were made on appellant before the filing
of the complaints against her.52 Thus, absent a clear showing that petitioner actually knew of the
dishonor of her checks and was given the opportunity to make arrangements for payment as provided
for under the law, we cannot with moral certainty convict her of violation of B.P. Blg. 22. The failure of
the prosecution to prove that petitioner was given the requisite notice of dishonor is a clear ground for
her acquittal.53
 73

Moreover, as understood by the trial court itself in the herein aforequoted portion of its decision,
General Manager Novales knew of the non-availability of sufficient funds when appellant issued the
subject checks to him. This Court has held that there is no violation of B.P. 22 if complainant was told
by the drawer that he has no sufficient funds in the bank. 54

For these reasons, we reverse the ruling of the Court of Appeals affirming the trial court's conviction
of petitioner for violation of B.P. Blg. 22. This is without prejudice, however, to her civil liability towards
private complainant Solid Gold in the amount of P500,000.00 plus interest thereon at the rate of 12%
per annum from date of finality of herein judgment. 55

WHEREFORE, the assailed Decision and Resolution of the Court of Appeals are hereby REVERSED
and SET ASIDE. Petitioner Elvira Yu Oh is ACQUITTED of the offense of violation of B.P. Blg. 22 on
ten counts for insufficiency of evidence. However, she is ordered to pay complainant Solid Gold
International Traders, Inc. the total amount of Five Hundred Thousand Pesos (P500,000.00) with 12%
interest per annum from date of finality of herein judgment.

SO ORDERED.
 74

ISIDRO PABLITO M. PALANA, G.R. No. 149995

Petitioner,
Present:

Ynares-Santiago, J. (Chairperson),
- versus - Austria-Martinez,
Chico-Nazario,
Nachura, and
Reyes, JJ.
PEOPLE OF THE PHILIPPINES,
Respondent. Promulgated:
September 28, 2007
DECISION

YNARES-SANTIAGO, J.:

For review is the Decision of the Court of Appeals in CA-G.R. CR No. 21879 dated September
17, 2001,1[1] affirming the September 23, 1997 Decision of the Regional Trial Court of Makati City,
Branch 63, in Criminal Case No. 91-5617 convicting petitioner Isidro Pablito Palana with violation of
Batas Pambansa (B.P.) Blg. 22 otherwise known as the Bouncing Checks Law.

On August 19, 1991, petitioner was charged with violation of B.P. Blg. 22 in an Information which
reads as follows:

That on or about September 1987, in the Municipality of Makati, Metro Manila,

Philippines, a place within the jurisdiction of this Honorable Court, the above-named
accused did, then and there, willfully, unlawfully and knowingly make or draw and issue
to Alex B. Carlos to apply on account or for the value the check described below:

Check No. : 326317PR

Drawn Against : Asian Savings Bank
Paseo de Roxas Branch
In the amount of : P590,000.00
Postdated : February 15, 1988
Payable to : Dr. Alex B. Carlos

said accused well knowing that at the time of issue, he did not have sufficient funds in or
credit with the drawee bank for the payment in full of the face amount of such check when
presented for payment within (90) days from the date thereof, was subsequently
dishonored by the drawee bank for the reason Drawn Against Insufficient Funds and
despite receipt of notice of such dishonor, the accused failed to pay said payee the face
amount of said check or make arrangement for full payment within five (5) banking days
after receiving notice.2[2]
 75

On January 30, 1992, the case was archived due to petitioners non-apprehension
despite the issuance of a warrant for his arrest. 3[3] On June 27, 1995, the warrant of
arrest was recalled and set aside4[4] after petitioner posted the required bail. He was
arraigned on July 25, 1995 when he pleaded not guilty to the offense charged.5[5]

Private complainant Alex B. Carlos testified that sometime in September 1987,

petitioner and his wife borrowed money from him in the amount of P590,000.00. To
secure the payment of the loan, petitioner issued a postdated check for the same amount
in favor of the complainant.6[6] However, when the check was presented for payment, it
was dishonored by the bank for insufficiency of funds. Subsequent demand
notwithstanding, petitioner failed to make good the said dishonored check.7[7]

Petitioner alleged that the amounts given to him by private complainant was an
investment by the latter who was his business partner. He argued that the subject check
was not issued in September 1987 to guarantee the payment of a loan since his checking
account was opened only on December 1, 1987.8[8] He claimed that private complainant
cajoled him to issue a check in his favor allegedly to be shown to a textile supplier who
would provide the partnership with the necessary raw materials. Petitioner alleged that
when the check was issued sometime in February 1988, 9[9] complainant knew that the
same was not funded.10[10]
 76

After trial on the merits, the Regional Trial Court rendered on September 23, 1997
a Decision11[11] finding petitioner guilty as charged, the dispositive portion of which reads:

Wherefore, this court finds the accused Isidro Pablito M. Palana guilty as charged
and sentences him to a prison term of Six (6) months and to indemnify the private
complainant the sum of P590,000.00 plus legal interest from filing of this case until full
payment.

SO ORDERED.

Petitioner appealed but it was dismissed by the Court of Appeals which affirmed
the trial courts decision in toto.12[12]

Both the trial court and the Court of Appeals found that the check was issued as a
guaranty for the loan, thereby rejecting petitioners investment theory. In ruling against
the existence of a partnership between them, the trial court noted that the so-called
partnership venture, Palanas General Merchandising, was registered on December 1,
1987 only in the name of petitioner.13[13] The Court of Appeals also held that the act of
lending money does not necessarily amount to an investment of capital.

Hence, the instant petition raising the following issues:

I.

THE COURT OF APPEALS ERRED IN AFFIRMING THE FINDING OF THE LOWER

COURT DISREGARDING THE DEFENSE OF THE ACCUSED THAT THE ISSUANCE
OF THE SUBJECT ASIAN BANK CHECK, WAS NOT FOR A CONSIDERATION OR
FOR VALUE, AS THE ACCUSED WAS ONLY TRICKED BY THE PRIVATE
COMPLAINANT TO ISSUE THE SAID CHECK AS A MEANS OF BINDING THE
ACCUSED TO RETURN HIS INVESTMENT IN THE PARTNERSHIP WHICH WAS
THEN SUFFERING FROM BUSINESS REVERSALS.

II.
THE COURT OF APPEALS ERRED IN AFFIRMING THE FINDINGS OF THE LOWER
COURT THAT THE REGIONAL TRIAL COURT HAS JURISDICTION OVER THE CASE,
DESPITE THE FACT THAT AT THE TIME THE ACCUSED WAS ARRAIGNED ON JULY
 77

25, 1995 R.A. 7691 EXPANDING THE JURISDICTION OF THE METROPOLITAN TRIAL
COURT WAS ALREADY IN EFFECT.14[14]

The issues to be resolved are: 1) whether petitioner was guilty of violation of B.P.
Blg. 22; and 2) whether the Regional Trial Court has jurisdiction over the case.

Petitioners argument that it is the Metropolitan Trial Court and not the Regional
Trial Court which has jurisdiction over the case pursuant to R.A. 7691 is without merit.

It is hornbook doctrine that jurisdiction to try a criminal action is determined by the

law in force at the time of the institution of the action15[15] and not during the arraignment
of the accused. The Information charging petitioner with violation of B.P. Blg. 22 was
filed on August 19, 1991. At that time, the governing law determinative of jurisdiction is
B.P. Blg. 12916[16] which provides:

Sec. 20. Jurisdiction in criminal cases. Regional Trial Courts shall exercise
exclusive original jurisdiction in all criminal cases not within the exclusive jurisdiction of
any court, tribunal or body, except those now falling under the exclusive and concurrent
jurisdiction of the Sandiganbayan which shall hereafter be exclusively taken cognizance
by the latter.

xxxx

Sec. 32. Jurisdiction of Metropolitan Trial Courts, Municipal Trial Courts and
Municipal Circuit Trial Courts in Criminal Cases. Except in cases falling within the
exclusive original jurisdiction of Regional Trial Courts and the Sandiganbayan, the
Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts shall
exercise:

xxxx

(2) Exclusive original jurisdiction over all offenses punishable with

imprisonment of not exceeding four years and two months, or a fine of not more
than four thousand pesos, or both such fine and imprisonment, regardless of other
imposable accessory or other penalties, including the civil liability arising from such
offenses or predicated thereon, irrespective of kind, nature, value or amount thereof:
Provided, however, That in offenses involving damage to property through criminal
 78

negligence they shall have exclusive original jurisdiction where the imposable fine does
not exceed twenty thousand pesos.

Violation of B.P. Blg. 22 is punishable with imprisonment of not less than 30 days
but not more than one year or by a fine of not less than but not more than double the
amount of the check which fine shall in no case exceed P200,000.00, or both fine and
imprisonment17[17] at the discretion of the court. In the present case, the fine imposable
is P200,000.00 hence, the Regional Trial Court properly acquired jurisdiction over the
case.18[18] The Metropolitan Trial Court could not acquire jurisdiction over the criminal
action because its jurisdiction is only for offenses punishable with a fine of not more than
P4,000.00.

The subsequent amendment of B.P. 129 by R.A. No. 7691, An Act Expanding the
Jurisdiction of the Municipal Trial Courts, Municipal Circuit Trial Courts and the
Metropolitan Trial Court19[19] on June 15, 1994 cannot divest the Regional Trial Court of
jurisdiction over petitioners case. Where a court has already obtained and is exercising
jurisdiction over a controversy, its jurisdiction to proceed to the final determination of the
cause is not affected by new legislation placing jurisdiction over such proceedings in
another tribunal unless the statute expressly provides, or is construed to the effect that
it is intended to operate on actions pending before its enactment. Indeed, R.A. No. 7691
contains retroactive provisions. However, these only apply to civil cases that have not
yet reached the pre-trial stage. Neither from an express proviso nor by implication can
it be construed that R.A. No. 7691 has retroactive application to criminal cases pending
or decided by the Regional Trial Courts prior to its effectivity. 20[20] The jurisdiction of the
RTC over the case attached upon the commencement of the action by the filing of the
Information and could not be ousted by the passage of R.A. No. 7691 reapportioning the
 79

jurisdiction of inferior courts, the application of which to criminal cases is prospective in

nature.21[21]

After a careful review of the records, this Court sustains petitioners conviction for
violation of B.P. Blg. 22. The elements of the offense penalized under B.P. Blg. 22 are
as follows: (1) the accused makes, draws, or issues any check to apply on account or
for value; (2) the accused knows at the time of issue that he does not have sufficient
funds in or credit with the drawee bank for the payment of such check in full upon its
presentment; and (3) the check is subsequently dishonored by the drawee bank for
insufficiency of funds or credit or would have been dishonored for the same reason had
not the drawer, without any valid reason, ordered the bank to stop payment.

Each element of the offense was duly proven by the prosecution. Petitioner
admitted that at the time he issued the subject check, he knew that he does not have
sufficient funds in or credit with the drawee bank for payment of such check.
Consequently, when the check was presented for payment, it was dishonored by the
drawee bank for insufficiency of funds. Thereafter, he received demand letters to pay
the amount of the check from private complainant but he did not comply with it.22[22]

In ruling that the amount of the check was for consideration or value, both the trial
court and the Court of Appeals upheld private complainants claim that the check was
issued as a guaranty for the loan and rejected petitioners investment theory. The issue
as to whether the amount of the subject check represents the amount of the money
loaned by private complainant to petitioner or as an investment in the alleged partnership
is a factual question involving the credibility of witnesses. Where the issue is one of
credibility, the appellate court will not generally disturb the findings of the lower court
considering that it is in a better position to settle that issue since it had the advantage of
hearing the witnesses and observing their conduct during the trial, which circumstances
 80

carry great weight in assessing their credibility. In the present case, we see no reason
to reverse the finding of the trial court as affirmed by the Court of Appeals that the amount
of the subject check was a loan and not an investment.23[23]

Upon issuance of a check, in the absence of evidence to the contrary, it is

presumed that the same was issued for valuable consideration, which may consist either
in some right, interest, profit or benefit accruing to the party who makes the contract, or
some forbearance, detriment, loss or some responsibility, to act, or labor, or service
given, suffered or undertaken by the other side. Since it was established that petitioner
received money from private complainant in various amounts,24[24] petitioner cannot
now claim that the checks were not issued for value.25[25]

The allegation that the check was intended to be shown to potential suppliers is
not a valid defense. In Cueme v. People,26[26] the Court held thus:

The allegation of petitioner that the checks were merely intended to be shown to
prospective investors of her corporation is, to say the least, not a defense. The gravamen
of the offense punished under B.P. Blg. 22 is the act of making or issuing a worthless
check or a check that is dishonored upon its presentment for payment. The law has made
the mere act of issuing a bad check malum prohibitum, an act proscribed by the legislature
for being deemed pernicious and inimical to public welfare. Considering the rule in mala
prohibita cases, the only inquiry is whether the law has been breached. Criminal intent
becomes unnecessary where the acts are prohibited for reasons of public policy, and the
defenses of good faith and absence of criminal intent are unavailing.

The checks issued, even assuming they were not intended to be encashed or
deposited in a bank, produce the same effect as ordinary checks. What the law punishes
is the issuance of a rubber check itself and not the purpose for which the check was
issued nor the terms and conditions relating to its issuance. This is not without good
reasons. To determine the purpose as well as the terms and conditions for which checks
are issued will greatly erode the faith the public reposes in the stability and commercial
value of checks as currency substitutes, and bring about havoc in the trading and banking
communities. Besides, the law does not make any distinction as to the kind of checks
which are the subject of its provisions, hence, no such distinction can be made by means
of interpretation or application. What is important is the fact that petitioner deliberately
 81

issued the checks in question and those checks were dishonored upon presentment for
payment.

Hence, the agreement surrounding the issuance of a check is irrelevant to the

prosecution and conviction of the petitioner.27[27]

The alleged inconsistency in the date of issuance of the subject check is likewise
immaterial. Issuance, as defined under the Negotiable Instruments Law, is the first
delivery of the check.28[28] In the case at bar, the Information alleged that the check
was postdated February 15, 1988 although issued in or about September 1987. During
trial, petitioner testified that the Checking Account was opened only on December 1,
1987 and that the check was issued sometime in February 1988.

The rule is that a variance between the allegation in the information and proof
adduced during trial shall be fatal to the criminal case if it is material and prejudicial to
the accused so much so that it affects his substantial rights.29[29] In a prosecution for
violation of B.P. 22, the time of the issuance of the subject check is material since it
forms part of the second element of the offense that at the time of its issuance, petitioner
knew of the insufficiency of funds. However, it cannot be said that petitioner was
prejudiced by such variance nor was surprised by it. Records show that petitioner knew
at the time he issued the check that he does not have sufficient funds in the bank to
cover the amount of the check. Yet, he proceeded to issue the same claiming that the
same would only be shown to prospective suppliers, a defense which is not valid.

Moreover, there is no merit in petitioners allegation that private complainant knew

that the check is not funded. Both the trial court and the Court of Appeals found that the
subject check was issued as guaranty for payment of the loan hence, was intended to
 82

apply for account or for value. As such, it was incumbent upon petitioner to see to it that
the check is duly covered when presented for payment.

Pursuant to Supreme Court Administrative Circular No. 12-2000, as clarified by

Administrative Circular No. 13-2001, the alternative penalty of fine may be imposed in
lieu of imprisonment considering that the prosecution failed to prove or allege that
petitioner is not a first-time offender.30[30] Hence, in lieu of imprisonment, a fine of
P200,000.00 shall be imposed upon petitioner.31[31]

WHEREFORE, the assailed decision of the Court of Appeals in CA-G.R. CR No.

21879 dated September 17, 2001, finding petitioner ISIDRO PABLITO M. PALANA guilty
of violating Batas Pambansa Blg. 22, is AFFIRMED with MODIFICATION. Petitioner is
ordered to pay private complainant the amount of P590,000.00, representing the value
of the check, with six (6%) percent interest from date of filing of the Information until the
finality of the decision, the amount of which, inclusive of the interest, is subject to twelve
percent (12%) interest, from finality of the decision until fully paid. In lieu of imprisonment,
petitioner is ordered to pay a fine of P200,000.00.

SO ORDERED.
 83

ARSENIA B. GARCIA, G.R. No. 157171

Petitioner,
Present:

QUISUMBING, J., Chairperson,

- versus - CARPIO,
CARPIO MORALES, and
TINGA, JJ.

HONORABLE COURT OF Promulgated:

APPEALS and THE PEOPLE OF
THE PHILIPPINES, March 14, 2006
Respondents.

DECISION
QUISUMBING, J.:

This petition seeks the review of the judgment of the Court of Appeals in CA-G.R.
CR No. 2454732[1] that affirmed the conviction of petitioner by the Regional Trial
Court33[2] of Alaminos City, Pangasinan, Branch 54, for violation of Section 27(b) of
Republic Act No. 6646.34[3]

Based on the complaint-affidavit of Aquilino Q. Pimentel, Jr., who ran in the 1995
senatorial elections, an information dated March 30, 1998, was filed in the Regional Trial
Court of Alaminos, charging Herminio R. Romero, Renato R. Viray, Rachel Palisoc and
Francisca de Vera, and petitioner, with violation of Section 27(b). The information reads:

That on or about May 11, 1995, which was within the canvassing period during the
May 8, 1995 elections, in the Municipality of Alaminos, Province of Pangasinan,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused,
Election Officer Arsenia B. Garcia, Municipal Treasurer Herminio R. Romero, Public
School District Supervisor Renato R. Viray, Chairman, Vice-Chairman, and Member-
Secretary, respectively, of the Municipal Board of Canvassers of Alaminos, Pangasinan,
tabulators Rachel Palisoc and Francisca de Vera, conspiring with, confederating together
and mutually helping each other, did, then and there, willfully, and unlawfully decrease[d]
the votes received by senatorial candidate Aquilino Q. Pimentel, Jr. from six thousand
 84

nine hundred ninety-eight (6,998) votes, as clearly disclosed in the total number of votes
in the one hundred fifty-nine (159) precincts of the Statement of Votes by Precincts of
said municipality, with Serial Nos. 008417, 008418, 008419, 008420, 008421, 008422
and 008423 to one thousand nine hundred twenty-one (1,921) votes as reflected in the
Statement of Votes by Precincts with Serial No. 008423 and Certificate of Canvass with
Serial No. 436156 with a difference of five thousand seventy-seven (5,077) votes.

CONTRARY TO LAW.35[4]

In a Decision dated September 11, 2000, the RTC acquitted all the accused for
insufficiency of evidence, except petitioner who was convicted as follows:

xxx

5. And finally, on the person of ARSENIA B. GARCIA, the Court pronounces

her GUILTY beyond reasonable doubt, of the crime defined under Republic
Act 6646, Section 27 (b) for decreasing the votes of Senator Pimentel in the
total of 5,034 and in relation to BP Blg. 881, considering that this finding is
a violation of Election Offense, she is thus sentenced to suffer an
imprisonment of SIX (6) YEARS as maximum, but applying the
INDETERMINATE SENTENCE LAW, the minimum penalty is the next
degree lower which is SIX (6) MONTHS; however, accused ARSENIA B.
GARCIA is not entitled to probation; further, she is sentenced to suffer
disqualification to hold public office and she is also deprived of her right of
suffrage.

The bailbond posted by her is hereby ordered cancelled, and the Provincial Warden
is ordered to commit her person to the Bureau of Correctional Institution for Women, at
Metro Manila, until further orders from the court.

No pronouncement as to costs.

IT IS SO ORDERED.36[5]

Petitioner appealed before the Court of Appeals which affirmed with modification
the RTC Decision, thus,

WHEREFORE, foregoing considered, the appealed decision is hereby AFFIRMED

with MODIFICATION, increasing the minimum penalty imposed by the trial court from six
(6) months to one (1) year.
 85

SO ORDERED.37[6]

The Court of Appeals likewise denied the motion for reconsideration. Hence, this
appeal assigning the following as errors of the appellate court:

I
ON THE FIRST AND SECOND GROUNDS RELIED UPON BY THE
RESPONDENT COURT, NAMELY, THAT IT COULD NOT HAVE BEEN SECRETARY
VIRAY WHO DECREASED THE VOTES OF COMPLAINANT PIMENTEL SINCE HE
MERELY RELIED ON WHAT THE PETITIONER DICTATED, AND THAT IT COULD NOT
HAVE ALSO BEEN THE TABULATORS BECAUSE PETITIONER WAS THE ONE WHO
READ THE ADDING [MACHINE] TAPE.

II
ON THE THIRD GROUND, NAMELY, THAT PETITIONER DID NOT PRODUCE
THE TAPES DURING THE TRIAL BECAUSE IF PRODUCED, IT IS GOING TO BE
ADVERSE TO HER.

III
ON THE FOURTH GROUND, NAMELY, THAT THE PETITIONER WAS THE ONE
WHO ENTERED THE REDUCED FIGURE OF 1,921 IN THE CERTIFICATE OF CANVASS
(COC), Exh. 7, WHEN THE DUTY WAS THAT OF THE SECRETARY OF THE BOARD.

IV
THE REDUCTION OF THE VOTES OF CANDIDATE PIMENTEL WAS CLEARLY
NOT WILLFUL OR INTENTIONAL.38[7]

Petitioner contends that (1) the Court of Appeals judgment is erroneous, based on
speculations, surmises and conjectures, instead of substantial evidence; and (2) there
was no motive on her part to reduce the votes of private complainant.

Respondent on the other hand contends that good faith is not a defense in the
violation of an election law, which falls under the class of mala prohibita.
 86

The main issue is, Is a violation of Section 27(b) of Rep. Act No. 6646, classified
under mala in se or mala prohibita? Could good faith and lack of criminal intent be valid
defenses?

Generally, mala in se felonies are defined and penalized in the Revised Penal
Code. When the acts complained of are inherently immoral, they are deemed mala in
se, even if they are punished by a special law.39[8] Accordingly, criminal intent must be
clearly established with the other elements of the crime; otherwise, no crime is
committed. On the other hand, in crimes that are mala prohibita, the criminal acts are
not inherently immoral but become punishable only because the law says they are
forbidden. With these crimes, the sole issue is whether the law has been violated.40[9]
Criminal intent is not necessary where the acts are prohibited for reasons of public
policy.41[10]

Section 27(b) of Republic Act No. 664642[11] provides:

SEC. 27. Election Offenses.- In addition to the prohibited acts and election
offenses enumerated in Sections 261 and 262 of Batas Pambansa Blg. 881, as amended,
the following shall be guilty of an election offense:
xxx
(b) Any member of the board of election inspectors or board of canvassers who
tampers, increases, or decreases the votes received by a candidate in any election or
any member of the board who refuses, after proper verification and hearing, to credit the
correct votes or deduct such tampered votes.
xxx

Clearly, the acts prohibited in Section 27(b) are mala in se.43[12] For otherwise,
even errors and mistakes committed due to overwork and fatigue would be punishable.
 87

Given the volume of votes to be counted and canvassed within a limited amount of time,
errors and miscalculations are bound to happen. And it could not be the intent of the law
to punish unintentional election canvass errors. However, intentionally increasing or
decreasing the number of votes received by a candidate is inherently immoral, since it
is done with malice and intent to injure another.

Criminal intent is presumed to exist on the part of the person who executes an act
which the law punishes, unless the contrary shall appear.44[13] Thus, whoever invokes
good faith as a defense has the burden of proving its existence.

Records show that the canvassing of votes on May 11, 1995 before the Board of
Canvassers of the Municipality of Alaminos, Pangasinan was conducted as follows:

1. After the votes in the 159 precincts of the municipality of Alaminos were tallied, the
results thereof were sealed and forwarded to the Municipal Board of Canvassers for
canvassing;
2. The number of votes received by each candidate in each precinct was then recorded
in the Statement of Votes with appellant, in her capacity as Chairman, reading the
figures appearing in the results from the precincts and accused Viray, in his capacity
as secretary of the Board, entering the number in the Statements of Votes as read by
the appellant. Six Statements of Votes were filled up to reflect the votes received by
each candidate in the 159 precincts of the Municipality of Alaminos, Pangasinan.
3. After the number of votes received by each candidate for each precincts were entered
by accused Viray in the Statements of Votes, these votes were added by the accused
Palisoc and de Vera with the use of electrical adding machines.
4. After the tabulation by accused Palisoc and de Vera, the corresponding machine
tapes were handed to appellant who reads the subtotal of votes received by each
candidate in the precincts listed in each Statement of Votes. Accused Viray [then]
records the subtotal in the proper column in the Statement of Votes.
5. After the subtotals had been entered by accused Viray, tabulators accused Palisoc
and de Vera added all the subtotals appearing in all Statement of Votes.
6. After the computation, the corresponding machine tape on which the grand total was
reflected was handed to appellant who reads the same and accused Viray enters the
figure read by appellant in the column for grand total in the Statement of Votes.45[14]
 88

Neither the correctness of the number of votes entered in the Statement of Votes
(SOV) for each precinct, nor of the number of votes entered as subtotals of votes
received in the precincts listed in SOV Nos. 008417 to 008422 was raised as an issue.

At first glance, however, there is a noticeable discrepancy in the addition of the

subtotals to arrive at the grand total of votes received by each candidate for all 159
precincts in SOV No. 008423.46[15] The grand total of the votes for private complainant,
Senator Aquilino Pimentel, was only 1,921 instead of 6,921, or 5,000 votes less than the
number of votes private complainant actually received. This error is also evident in the
Certificate of Canvass (COC) No. 436156 signed by petitioner, Viray and Romero.47[16]

During trial of this case, petitioner admitted that she was indeed the one who
announced the figure of 1,921, which was subsequently entered by then accused Viray
in his capacity as secretary of the board.48[17] Petitioner likewise admitted that she was
the one who prepared the COC (Exhibit A-7), though it was not her duty. To our mind,
preparing the COC even if it was not her task, manifests an intention to perpetuate the
erroneous entry in the COC.49[18]

Neither can this Court accept petitioners explanation that the Board of Canvassers
had no idea how the SOV (Exhibit 6) and the COC reflected that private complainant had
only 1,921 votes instead of 6,921 votes. As chairman of the Municipal Board of
Canvassers, petitioners concern was to assure accurate, correct and authentic entry of
the votes. Her failure to exercise maximum efficiency and fidelity to her trust deserves
not only censure but also the concomitant sanctions as a matter of criminal responsibility
pursuant to the dictates of the law.50[19]
 89

The fact that the number of votes deducted from the actual votes received by
private complainant, Sen. Aquilino Pimentel, Jr. was not added to any senatorial
candidate does not relieve petitioner of liability under Section 27(b) of Rep. Act No. 6646.
The mere decreasing of the votes received by a candidate in an election is already
punishable under the said provision.51[20]

At this point, we see no valid reason to disturb the factual conclusions of the
appellate court. The Court has consistently held that factual findings of the trial court, as
well as of the Court of Appeals are final and conclusive and may not be reviewed on
appeal, particularly where the findings of both the trial court and the appellate court on
the matter coincide.52[21]

Public policy dictates that extraordinary diligence should be exercised by the

members of the board of canvassers in canvassing the results of the elections. Any error
on their part would result in the disenfranchisement of the voters. The Certificate of
Canvass for senatorial candidates and its supporting statements of votes prepared by
the municipal board of canvassers are sensitive election documents whose entries must
be thoroughly scrutinized.53[22]

In our review, the votes in the SOV should total 6,998.54[23]

As between the grand total of votes alleged to have been received by private
complainant of 6,921 votes and statement of his actual votes received of 6,998 is a
difference of 77 votes. The discrepancy may be validly attributed to mistake or error due
to fatigue. However, a decrease of 5,000 votes as reflected in the Statement of Votes
and Certificate of Canvass is substantial, it cannot be allowed to remain on record
 90

unchallenged, especially when the error results from the mere transfer of totals from one
document to another.

WHEREFORE, the instant petition is DENIED. The assailed Decision of the Court
of Appeals sustaining petitioners conviction but increasing the minimum penalty in her
sentence to one year instead of six months is AFFIRMED.

SO ORDERED.
 91

G.R. No. 209464 July 1, 2015

DANDY L. DUNGO and GREGORIO A. SIBAL, JR., Petitioners,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

MENDOZA, J.:

The fraternal contract should not be signed in blood, celebrated with pain, marred by injuries, and
perpetrated through suffering. That is the essence of Republic Act (R.A.) No. 8049 or the Anti-Hazing
Law of 1995.

This is a petition for review on certiorari seeking to reverse and set aside the April 26, 2013 Decision1
and the October 8, 2013 Resolution2 of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 05046,
which affirmed the February 23, 2011 Decision3 of the Regional Trial Court, Branch 36, Calamba City
(RTC). The RTC found petitioners Dandy L. Dungo (Dungo) and Gregorio A. Sibal, Jr. (Sibal), guilty
beyond reasonable doubt of the crime of violation of Section 4 of R.A. No. 8049, and sentenced them
to suffer the penalty of reclusion perpetua.

The Facts

On February 1, 2006, the Office of the City Prosecutor of Calamba, Laguna, filed the Information4
against the petitioners before the R TC, the accusatory portion of which reads: That on or about 2:30
in the early morning of January 14, 2006, at Villa Novaliches, Brgy. Pansol, Calamba ,City, Province
of Laguna and within the jurisdiction of the Honorable Court, the above-named accused, during an
initiation rite and being then members of Alpha Phi Omega fraternity and present thereat, in
conspiracy with more or less twenty other members and officers, whose identity is not yet known, did
then and there willfully, unlawfully and feloniously assault and use personal violence upon one M4-
RLON VILLANUEVA y MEJILLA, a neophyte thereof and as condition for his admission to the
fraternity, thereby subjecting him to physical harm, resulting to his death, to the damage and
prejudice of the heirs of the victim.

CONTRARY TO LAW.

On February 7, 2006, upon motion, the RTC admitted the Amended Information5 which reads:

That on or about 2:30 in the early morning of January 14, 2006, at Villa Novaliches, Brgy. Pansol,
Calamba City, Province of Laguna and within the jurisdiction of the Honorable Court, the above-name
accused, during a planned initiation rite and being then officers and members of Alpha Phi Omega
fraternity and present thereat, in conspiracy with more or less twenty other members and officers,
whose identity is not yet known, did then and there willfully, unlawfully and feloniously assault and
use personal violence upon one MARLON VILLANUEVA y MEJILLA, a neophyte thereof and as
condition for his admission to the fraternity, thereby subjecting him to physical harm, resulting to his
death, to the damage and prejudice of the heirs of the victim. CONTRARY TO LAW.

On February 7, 2006, Dungo filed a motion to quash for lack of probable cause,6 but it was denied by
the trial court because the ground cited therein was not provided by law and jurisprudence. When
arraigned, the petitioners pleaded not guilty to the crime charged.7 Thereafter, trial ensued.

Version of the Prosecution

 92

The prosecution presented twenty (20) witnesses to prove the crime charged. Their testimonies are
summarized as follows:

At around 3:20 o'clock in the morning of January 14, 2006, the victim Marlon Villanueva (Villanueva)
was brought to the emergency room of Dr. Jose P. Rizal District Hospital (JP Rizal Hospital). Dr.
Ramon Masilungan (Dr. Masilungan), who was then the attending physician at the emergency room,
observed that Villanueva was motionless, not breathing and had no heartbeat. Dr. Masilungan tried to
revive Villlanueva for about 15 to 30 minutes. Villanueva, however, did not respond to the
resuscitation and was pronounced dead. Dr. Masilungan noticed a big contusion hematoma on the
left side of the victim's face and several injuries on his arms and legs. He further attested that
Villanueva 's face was cyanotic, meaning that blood was no longer running through his body due to
lack of oxygen; and when he pulled down Villanueva's pants, he saw large contusions on both legs,
which extended from the upper portion of the thighs, down to the couplexial portion, or back of the
knees.

Dr. Masilungan disclosed that two (2) men brought Villanueva to the hospital. The two told him that
they found Villanueva lying motionless on the ground at a store in Brgy. Pansol, Calamba City, and
brought him to the hospital. When he asked them where they came from, one of them answered that
they came from Los Baños, Laguna, en route to San Pablo City. He questioned them on how they
found Villanueva, when the latter was in Brgy. Pansol, Calamba City. One of the men just said that
they were headed somewhere else.

Dr. Masilungan reduced his findings in a medico-legal report.8 Due to the nature, extent and location
of the injuries, he opined that Villanueva was a victim of hazing. He was familiar with hazing injuries
because he had undergone hazing himself when he was a student, and also because of his
experience in treating victims of hazing incidents.

Dr. Roy Camarillo (Dr. Camarillo), Medico-Legal Officer of the Philippine National Police Crime
Laboratory (PNP-CL) in Region IV, Camp Vicente Lim, Canlubang, Calamba City, testified that he
performed an autopsy on the body of Villanueva on January 14, 2006 and placed down his findings in
an autopsy report.9 Upon examination of the body, he found various external injuries in the head,
trunk and extremities. There were thirty-three (33) external injuries, with various severity and nature.
He concluded that the cause of death was subdural hemorrhage due to head injury contusion-
hematoma. Based on multiple injuries and contusions on the body, and his previous examinations of
hazing injuries, Dr. Camarillo opined that these injuries were hazing-related. During the autopsy, he
retrieved two (2) matchsticks from the cadaver with the marking of Alpha Phi Omega (APO)
Fraternity.10

Susan Ignacio (Ignacio) was the owner of the sari-sari store located at Purok 5, Pansol, Calamba
City, in front of Villa Novaliches Resort, which was barely ten steps away. On January 13, 2006, at
around 8:30 to 9:00 o'clock in the evening, she was tending her store when she saw a jeepney with
more than twenty (20) persons arrive at the resort. Ignacio identified Dungo as the person seated
beside the driver of the jeepney.11 She estimated the ages of these persons in the group to be
between 20 to 30 years old. They were in civilian clothes, while the other men wore white long-
sleeved shirts. Before entering the resort, the men and women shook hands and embraced each
other. Three (3) persons, riding on a single motorcycle, also arrived at the resort.

Ignacio saw about fifteen (15) persons gather on top of the terrace of the resort who looked like they
were praying, and then the lights of the resort were turned off. Later that evening, at least three (3) of
these persons went to her store to buy some items. During her testimony, she was shown
photographs and she identified Christopher Braseros and Sibal as two of those who went to her
 93

store.12 It was only on the morning of January 14, 2006 that she learned from the policemen visiting
the resort that the deceased person was Villanueva.

Donato Magat (Magat), a tricycle driver plying the route of Pansol, Calamba City, testified that at
around 3:00 o'clock in the morning of January 14, 2006, he was waiting for passengers at the comer
of Villa Novaliches Resort. A man approached him and told him that someone inside the resort
needed a ride. Magat went to the resort and asked the two (2) men at the gate who needed a ride.
Afterwards, he saw three (3) men in their 20's carrying another man, who looked very weak, like a
vegetable, towards his tricycle. Magat touched the body of the man being carried and sensed it was
cold.

Magat asked the men what happened to their companion. They replied that he had too much to drink.
Then they instructed Magat to go to the nearest hospital. He drove the tricycle to JP Rizal Hospital.
Upon their arrival, two of his passengers brought their unconscious companion inside the emergency
room, while their other companion paid the tricycle fare. Magat then left to go home. Several days
after, he learned that the person brought to the hospital had died.

Abelardo Natividad (Natividad) and Seferino Espina y Jabay (Espina) were the security guards on
duty at JP Rizal Hospital, from 11 :00 o'clock in the evening of January 13, 2006 until 7:00 o'clock in
the morning of January 14, 2006. In the early morning of January 14, 2006, two men, who signed on
the logbook13 under the names Brandon Gonzales and Jerico Paril, brought the lifeless body of a
person. Pursuant to the standard operating procedure of the hospital, the security guards did not
allow the two men to leave the hospital because they called the police station .so that an investigation
could be conducted. Two policemen arrived later at the hospital. During his testimony, Natividad
identified Sibal and Dupgo as the two persons who brought Villanueva to the hospital.

PO2 Alaindelon Ignacio (P02 Ignacio). testified that on January 14, 2006 at around 3:30 o'clock in the
early morning, Natividad called up the PNP Calamba City Station to report that a lifeless body of a
man was brought to JP Rizal Hospital. When P02 Ignacio arrived, he saw Villanueva' s corpse with
contusions and bite marks all over his body. P02 Ignacio and his policemen companions then brought
Dungo and Sibal to the police station. He asked them about what happened, but they invoked their
right to remain silent. The policemen then proceeded to Brgy. Pansol at around 9:00 o'clock in the
morning. After finding Villa Novaliches Resort, they knocked on the door and the caretaker, Maricel
Capillan (Capillan), opened it.

The police asked Capillan if there were University of the Philippines Los Baños (UP Los Baños)
students who rented the resort on the evening of January 13, 2006. Capillan said yes and added that
about twenty (20) persons arrived onboard a jeepney and told her that they would be renting the
resort from 9:30 o'clock in the evening up to 7:00 o'clock the following morning.

Gay Czarina Sunga (Sunga) was a food technology student at UP Los Baños during the academic
year of 2005-2006 and a member of the Symbiosis UPLB Biological Society. Around 3:00 o'clock in
the afternoon of January 13, 2006, she was at their organization's tambayan in the UPLB Biological
Sciences Building, when she noticed three (3) men seated two meters away from her. She identified
the two of the three men as Sibal and Dungo.14 They were wearing black shirts with the logo of APO.
Later at 5:00 o'clock in the afternoon, two more men arrived and, with their heads bowed, approached
the three men. One of them was Villanueva, who was carrying a 5-gallon water container. Dungo then
stood up and asked Villanueva why the latter did not report to him when he was just at their
tambayan. Dungo then punched Villanueva twice, but the latter just kept quiet with his head bowed.
Fifteen minutes later, all the men left.
 94

Joey Atienza (Atienza) had been a good friend of Villanueva since 2004. They were roommates at the
UP Los Baños Men's Dormitory and housemates at the DPS Apartment in Umali Subdivision, Los
Baños, Laguna. According to Atienza, on January 9, 2006, Villanueva introduced him to Daryl
Decena (Decena) as his APO - Theta Chapter batchmate, who was also to undergo final initiation
rites on January 13, 2006.

Severino Cuevas, Director of the Students Affairs at UP Los Baños, testified that Dungo and Sibal
were both members of the APO Fraternity, and that there was no record of any request for initiation or
hazing activity filed by the said fraternity.

McArthur Padua of the Office of the Registrar, UP Los Baños, testified that Villanueva was a B.S.
Agricultural Economics student at the UP Los Baños,15 as evidenced by his official transcript of
record.16

Atty. Eleno Peralta and Dina S. Carlos, officers of the Student Disciplinary Tribunal (SDT) of the UP
Los Baños, testified that an administrative disciplinary case was filed on March 31, 2006 against the
APO Fraternity regarding the death of Villanueva. They confirmed that Capilla of Villa Novaliches
Resort and Irene Tan (Tan) of APO Sorority Theta Chapter appeared as witnesses for the
complainant.17

Roman Miguel De Jesus, UP - Office of the Legal Aid (UP-OLA) supervising student, testified that he
met Tan of the APO Sorority sometime between July and August 2006 in UP Diliman: to convince her
to testify in the criminal case. Tan, however, refused because she feared for her safety. She said that
after testifying in the SDT hearing, her place in Imus, Cavite was padlocked and vandalized.

Evelyn Villanueva, mother of victim Villanueva, testified that, as a result of the death of her son, her
family incurred actual damages consisting of medical, burial and funeral expenses in the aggregate
amount of ₱140,000.00 which were evidenced by receipts.18 Her husband also incurred travel
expenses in the amount of ₱7,000.00 in returning to the Philippines to attend his son's wake and
burial, as supported by a plane ticket.19 She further attested that she experienced mental anguish,
sleepless nights, substantial weight loss, and strained family relationship as a result of her son's
death.

Version of the Defense

The defense presented seven (7) witnesses to prove the innocence of the petitioners. Their
testimonies are summarized as follow:

Richard Cornelio (Cornelio), an APO Fraternity member, testified that on January 13, 2006, around
4:00 to 4:30 o'clock in the afternoon, he met Dungo at the UP Los Baños Graduate School. Dungo
asked him if he would attend the initiation ceremony, and Cornelio answered in the negative because
he had other things to do. At 10:00 o'clock in the evening of the same day, Cornelio again met Dungo
and his girlfriend while eating a hamburger at the Burger Machine along Raymundo Street, Umali
Subdivision, Los Baños, Laguna (Raymundo Street). He asked Dungo if he would attend the initiation
ceremony. Dungo replied that he would not because he and his girlfriend had something to do.

Ana Danife Rivera (Rivera), the girlfriend of Dungo, testified that on January 13, 2006 at around 1 :00
o'clock in the afternoon, Dungo came and visited her at her boarding house on Raymundo Street.
Around 4:00 o'clock of the same afternoon, they went to the UP Los Baños Graduate School and saw
Cornelio. Afterwards, they went back to her boarding house and stayed there from 5:00 o'clock in the
afternoon to 7:00 o'clock in the evening. Then, they went to Lacxo Restaurant for dinner and left at
around 10:00 o'clock in the evening. On their way back to her boarding house, they encountered
 95

Cornelio again at the Burger Machine. Dungo then stayed and slept at her boarding house. Around
2:00 o'clock in the early morning of January 14, 2006, they were roused from their sleep by a phone
call from Sibal, asking Dungo to go to a resort in Pansol, Calamba City. Dungo then left the boarding
house.

Dungo testified that around 1:00 o'clock in the early afternoon of January 13, 2006, he arrived at the
boarding house of his girlfriend, Rivera, on Raymundo Street. At around 4:00 o'clock in the afternoon,
they went to the UP Los Baños Graduate School and inquired about the requirements for a master's
degree. They walked back to the boarding house and met Cornelio. They talked about their
fraternity's ,final initiation ceremony for that night in Pansol, Calamba City. Dungo and Rivera then
reached the latter's boarding house around 5:00 o'clock in the afternoon. At around 7:00 o'clock in the
evening, they went out for dinner at the Lacxo Restaurant, near Crossing Junction, Los Baños. They
ate and stayed at the restaurant for at least one and a half hours. Then they walked back to the
boarding house of Rivera and, along the way, they met Cornelio again at the Burger Machine along
Raymundo Street. Cornelio asked Dungo if he would attend their fraternity's final initiation ceremony,
to which he replied in the negative. Dungo and Rivera reached the boarding house around 9:00
o'clock in the evening and they slept there.

Around 2:00 o'clock in the early morning of January 14, 2006, Dungo was roused from his sleep
because Sibal was palling him on his cellphone. Sibal asked for his help, requesting him to go to Villa
Novaliches Resort in Pansol, Calamba City. Upon Dungo 's arrival at the resort, Sibal led him inside.
There, he saw Rudolfo Castillo (Castillo), a fellow APO fraternity brother, and Villanueva, who was
unconscious. Dungo told them that they should bring Villanueva to the hospital. They all agreed, and
Castillo called a tricycle that brought them to JP Rizal Hospital. He identified himself before the
security guard as Jerico Paril because he was scared to tell his real name.

Gilbert Gopez (Gopez) testified that he was the Grand Chancellor of the APO -Theta Chapter for
years 2005-2006. At around 7:00 o'clock in the evening of January 13, 2006, he was at the tambayan
of their fraternity in UP Los Baños because their neophytes would be initiated that night. Around 8:30
o'clock in the evening, they met their fraternity brothers in Bagong Kalsada, Los Baños. He noticed
that their neophyte, Villanueva, was with Castillo and that there was a bruise on the left side of his
face. Then they boarded a jeepney and proceeded to Villa Novaliches Resort in Pansol, Calamba
City. There, Gopez instructed Sibal to take Villanueva to the second floor of the resort. He confronted
Castillo as to what happened to Villanueva. Around 11:00 or 11:30 o'clock in the evening, Gopez
decided to cancel the final rites. He told Sibal to stay at the resort and accompany Villanueva and
Castillo. Together with the other neophytes, Gopez left the resort and went back to UP Los Baños.

Sibal testified that he was a DOST Scholar at the UP Los Baños from 2002 to 2006, taking up B.S.
Agricultural Chemistry. He was a Brother Actuary of the APO - Theta Chapter, and was in charge of
fraternity activities, such as tree planting, free medical and dental missions, and blood donations. On
January 13, 2006, at around 6:00 o'clock in the evening, he was at the fraternity's tambayan for the
final initiation rites of their neophytes. After preparing the food for the initiation rites, Sibal, together
with some neophytes, went to Bagong Kalsada, Los Baños, where he saw fellow fraternity brother
Castillo with their neophyte Villanueva, who had a bruised face. Thereafter, they boarded a jeepney
and proceeded to Villa Novaliches Resort in Pansol, Calamba City. Once inside the resort, he
accompanied Villanueva upstairs for the latter to take a rest. A few minutes later, he went down and
confronted Castillo about the bruises on Villanueva's face. He was angry and irritated with Castillo.
He then stayed outside the resort until Gopez and the other neophytes came out and told him that the
final initiation rite was cancelled, and that they were returning to UP Los Baños. Sibal wanted to go
with them but ;he was ordered to stay with Villanueva and Castillo.
 96

After the group of Gopez left, Sibal checked on the condition of Villanueva, who was sleeping on the
second; floor of the resort. Then he went outside for one hour, or until 1 :00 o 'dock in the early
morning of January 14, 2006. Sibal entered the resort again and saw Villanueva, who looked
unconscious, seated in one of the benc6es on the ground floor. Sibal inquired about Villanueva's
condition but he was ignored by Castillo. He then called Dungo for help. After Dungo arrived at the
resort, they hailed a tricycle and brought Villanueva to JP Rizal Hospital. There, he gave a false name
to the security guard as he heard that Dungo had done the same.

The RTC Ruling

On February 23, 2011, the RTC found Dungo and Sibal guilty of the crime of violating Section 4 of the
Anti-Hazing Law and sentenced them to suffer the penalty of reclusion perpetua. The trial court stated
that the prosecution established the presence of Dungo and Sibal (1) at the UP Los Banos Campus
on January 13, 2006 around 3:00 o'clock in the afternoon, by the testimony of Sunga and (2) at the
Villa Novaliches Resort around 9:00 o'clock in the evening of the same day by the testimony of
Ignacio. With the extensive testimonies of Dr. Masilungan and Dr. Camarillo, the prosecution also
proved that Villanueva died from hazing injuries.

According to the RTC, the evidence of the prosecution undeniably proved that Villanueva, a UP Los
Bafios student, was a neophyte of the APO - Theta Chapter Fraternity; that Dungo and Sibal were
members of the said fraternity; that on the evening of January 13, 2006, Dungo and Sibal, together
with the other fraternity members, officers and alumni, brought and transported Villanueva and two
other neophytes to Villa Novaliches Resort at Barangay Pansol, Calamba City, for the final initiation
rites; that the initiation rites were conducted inside the resort, performed under the cover of darkness
and secrecy; that due to the injuries sustained by Villanueva, the fraternity members and the other
two neophytes haphazardly left the resort; and that Dungo and Sibal boarded a tricycle and brought
the lifeless body of Villanueva to JP Rizal Hospital, where Villanueva was pronounced dead.

The RTC explained that even if there was no evidence that Dungo and Sibal participated to bodily
assault and harm the victim, it was irrefutable that they brought Villanueva to the resort for their final
initiation rites. Clearly, they did not merely induce Villanueva to attend the final initiation rites, but they
also brought him to Villa Novaliches Resort.

The RTC held that the defense of denial and alibi were self-serving negative assertions. The defense
of denial and alibi of Dungo, which was corroborated by the testimony of his girlfriend Rivera and his
co-fraternity brother, could not be given credence. The witnesses presented by the defense were
partial and could not be considered as disinterested parties. The defense of denial of Sibal likewise
failed. The corroborative testimonies of his fraternity brothers were suspect because they had so
much at stake in the outcome of the criminal action.

The decretal portion of the decision reads:

WHEREFORE, the Court finds the accused Dandy Dungo and Gregorio Sibal GUILTY of violating
Section 4 of the Anti-Hazing Law and sentenced them to suffer the penalty of RECLUSION
PERPETUA and order them to jointly and severally pay the family /heirs of Deceased Marlon
Villanueva the following sums of money:

1. ₱141,324.00 for and as actual damages;

2. ₱200,000.00 for and as moral damages;

3. ₱100,000.00 for and as exemplary damages; and

 97

4. ₱50,000.00 for the death of Marlon Villanueva.

SO ORDERED.20

Aggrieved, the petitioners filed a notice of appeal. In their brief, they contended that the prosecution
failed to establish their guilt beyond reasonable doubt for violating R.A. No. 8049. They also assailed
the constitutionality of Section 4 of the said law, which stated that mere presence in the hazing was
prima facie evidence of participation therein, because it allegedly violated the constitutional
presumption of innocence of the accused.

The CA Ruling

The CA ruled that the appeal of Dungo and Sibal was bereft of merit. It stated that, in finding them
guilty of violating R.A. No. 8049, the RTC properly relied on circumstantial evidence adduced by the
prosecution. The CA painstakingly discussed the unbroken chain of circumstantial evidence to convict
Dungo and Sibal as principals in the crime of hazing.

It further found that the defense of denial and alibi of Dungo and Sibal failed to cast doubt on the
positive identification made by the prosecution witnesses; and that denial, being inherently weak,
could not prevail over the positive identification of the accused as the perpetrators of the crime. The
CA also stated that Dungo and Sibal were not only convicted based on their presence in the venue of
the hazing, but also in their act of bringing the victim to Villa Novaliches Resort for the final initiation
rites.

The dispositive portion of the decision reads:

WHEREFORE, premises considered, the February 23, 2011 Decision of the Regional Trial Court,
Branch 36 of Calamba City in CRIM. Case No. 13958-2006-C, finding accused-appellant guilty
beyond reasonable doubt of Violation of R.A. 8049 is hereby AFFIRMED in TOTO.

SO ORDERED.21

Dungo and Sibal moved for reconsideration but their motion was denied by the CA in the assailed
October 8, 2013 Resolution.

Hence, this petition.

SOLE ASSIGNMENT OF ERROR HE JUDGMENTS OF THE RTC AND THE CA A QUO

CONSTITUTE A VIOLATION OF THE CONSTITUTIONAL RIGHT OF THE ACCUSED TO BE
INFORMED OF THE NATURE AND CAUSE OF ACCUSATION AGAINST THEM BECAUSE THE
OFFENSE PROVED AS FOUND AND PRONOUNCED THEREBY IS DIFFERENT FROM THAT
CHARGED IN THE INFORMATION, NOR DOES ONE INCLUDE OR NECESSARILY INCLUDE THE
OTHER.22

Petitioners Dungo and Sibal argue that the amended information charged them as they "did then and
there willfully, unlawfully and feloniously assault and use personal violence upon one Marlon
Villanueva y Mejilla."23 Yet, both the RTC and the CA found them guilty of violating R.A. No. 8049
because they "[i]nduced the victim to be present"24 during the initiation rites. The crime of hazing by
inducement does not necessarily include the criminal charge of hazing by actual participation. Thus,
they cannot be convicted of a crime not stated or necessarily included in the information. By reason of
the foregoing, the petitioners contend that their constitutional right to be informed of the nature and
cause of accusation against them has been violated.
 98

In its Comment,25 filed on May 23, 2014, the Office of the Solicitor General (DSG) asserted that
Dungo and Sibal were charged in the amended information with the proper offense and convicted for
such. The phrases "planned initiation" and "in conspiracy with more or less twenty members and
officers" in the amended information sufficiently cover "knowingly cooperated in carrying out the
hazing by inducing the victim to be present thereat." The planned initiation rite would not have been
accomplished were it not for the acts of the petitioners in inducing the victim to be present thereat and
it was obviously conducted in conspiracy with the others.26 In their Reply27 filed on September 10,
2014, Dungo and Sibal insisted that there was a variance between the, offense charged of "actually
participated in the infliction of physical harm," and the offense "knowingly cooperated in carrying out
the hazing by inducing the victim to be present thereat."28 The prosecution, moreover, failed to
establish conspiracy because no act or circumstance was proved pointing to a joint purpose and
design between and among the petitioners and the other twenty accused.

The Court's Ruling

The petition lacks merit.

Procedural Matter

An appeal is a proceeding undertaken to have a decision reconsidered by bringing it to a higher court

authority.29 The right to appeal is neither a natural right nor is it a component of due process. It is a
mere statutory privilege, and may be exercised only in the manner and in accordance with the
provisions of law.30

Section 13(c), Rule 124 of the Revised Rules of Criminal Procedure, as amended by A.M. No. 00-5-
03, dated October 15, 2004, governs the procedure on the appeal from the CA to the Court when the
penalty imposed is either reclusion perpetua or life imprisonment.31 According to the said provision,
"[i]n cases where the Court of Appeals imposes reclusion perpetua, life imprisonment or a lesser
penalty, it shall render and enter judgment imposing such penalty. The judgment may be appealed to
the Supreme Court by notice of appeal filed with the Court of Appeals."

Hence, an accused, upon whom the penalty of reclusion perpetua or life imprisonment had been
imposed by the CA, can simply file a notice of appeal to allow him to pursue an appeal as a matter of
right before the Court. An appeal in a criminal case opens the entire case for review on any question
including one not raised by the parties.32 Section 13(c), Rule 124 recognizes the constitutionally
conferred jurisdiction of the Court in all criminal cases in which the penalty imposed is reclusion
perpetua or higher.33

An accused, nevertheless, is not precluded in resorting to an appeal by certiorari to the Court via Rule
45 under the Rules of Court. An appeal to this Court by petition for review on certiorari shall raise only
questions of law.34 Moreover, such review is not a matter of right, but of sound judicial discretion,
and will be granted only when there are special and important reasons.35 In other words, when the
CA imposed a penalty of reclusion perpetua or life imprisonment, an accused may: (1) file a notice of
appeal under Section 13( c ), Rule 124 to avail of an appeal as a matter of right before the Court and
open the entire case for review on any question; or (2) file a petition for review on certiorari under
Rule 45 to resort to an appeal as a matter of discretion and raise only questions of law.

In this case, the CA affirmed the R TC decision imposing the penalty of reclusion perpetua upon the
petitioners. The latter opted to appeal the CA decision via a petition for certiorari under Rule 45.
Consequently, they could only raise questions of law. Oddly, the petitioners began to assail the
existence of conspiracy in their reply,36 which is a question of fact that would require an examination
 99

of the evidence ;presented. In the interest of justice, however, and due to the novelty of the issue
presented, the Court deems it proper to open the whole case for review.37 Substantive Matter

In our contemporary society, hazing has been a nightmare of parents who send their children to
college or university. News of deaths and horrible beatings primarily among college students due to
hazing injuries continue to haunt us. Horrid images of eggplant-like buttocks and thighs and pounded
arms and shoulders of young men are depicted as a fervent warning to those who dare undergo the
hazing rites. The meaningless death of these promising students, and the agony, cries and ordeal of
their families, resonate through the very core of our beings. But no matter how modem and
sophisticated our society becomes, these barbaric acts of initiation of fraternities, sororities and other
organizations continue to thrive, even within the elite grounds of the academe.

The history and phenomenon of hazing had been thoroughly discussed in the recent case of Villareal
v. People.38 It is believed that the fraternity system and its accompanying culture of hazing were
transported by the Americans to the Philippines in the late 19th century.39 Thus, a study of the laws
and jurisprudence of the United States (US) on hazing can enlighten the current predicament of
violent initiations in fraternities, sororities and other organizations.

United States Laws and

Jurisprudence on Hazing

There are different definitions of hazing, depending on the laws of the states.40 In the case of People
v. Lenti,41 the defendant therein challenged the constitutionality of the state law defining hazing on
the ground of vagueness. The court rejected such contention and held that it would have been an
impossible task if the legislature had attempted to define hazing specifically

because fraternal organizations and associations never suffered for ideas in contriving new forms of
hazing. Presently, the acceptable definition of hazing is the practice of physically or emotionally
abusing newcomers to an organization as a means of initiation.42

Hazing can be classified into various categories including, but not limited to, acts of violence, acts of
humiliation, sexual-related acts, and alcohol-related acts.43 The physical form of hazing may include
beating, branding, paddling, excessive exercise, drinking, and using drugs. Sexual hazing have
included simulated sex acts, sodomy and forced kissing.44 Moreover, hazing does not only result in
physical injuries and hospitalization, but also lead to emotional damage and traumatic stress.45

Based on statistics and alarming frequency of hazing, states have attempted to combat hazing
through the passage of state laws that prohibit such acts.46 Forty-four states, with the exception of
Alaska, Hawaii, Montana, New Mexico, South Dakota, and Wyoming, have passed anti-hazing
laws.47 The severity of these laws can range from minor penalties to a prison sentence for up to six
years.48 In the states of Illinois, Idaho, Missouri, Texas, Virginia, Wisconsin, hazing that result in
death or "great bodily harm" is categorized as a felony.49

In Florida, the Chad Meredith Act,50 a law named after a student who died in a hazing incident, was
enacted on July 1, 2005. It provides that a person commits a third degree felony when he or she
intentionally or recklessly commits any act of hazing and the hazing results in serious bodily injury or
death. If a person only creates substantial risk of physical injury or death, then hazing is categorized
as a first degree misdemeanor. A similar provision can be observed in the Penal Law of New York.51

Interestingly, some states included notable features in their anti-hazing statute to increase its
effectiveness. In Alabama, Arkansas, Massachusetts, New Hampshire, South Carolina and Texas,
the law imposes a duty on school personnel to report hazing.52 In fact, in Alabama, no person is
 100

allowed to knowingly permit, encourage, aid, or assist any person in committing the offense of hazing,
or willfully acquiesces in its commission.53

Also, some states enacted statutes that have been interpreted to mean that persons are guilty of
hazing even if they have the consent of the victim.54 In New Jersey, consent is not a defense to a
hazing charge, and its law permits the prosecution of offenders under other applicable criminal
statutes.55 By including these various provisions in their anti-hazing statutes, these states have
removed the subjective inquiry of consent from consideration, thus, presumably allowing courts to
effectively and properly adjudicate hazing cases.56

In the US, hazing victims can either file a criminal action, based on anti-hazing statutes, or a civil suit,
arising from tort law and constitutional law, against the members of the local fraternity, the national
fraternity and even against the university or college concerned.57 Hazing, which threatens to
needlessly harm students, must be attacked from whatever legal means are possible.58

In State v. Brown,59 a member of the Alpha Kappa Alpha at Kent State University was indicted for
complicity to hazing. The group physically disciplined their pledges by forcing them to stand on their
heads, beating them with paddles, and smacking and striking initiates in the face and head. The Ohio
court held that evidence presented therein was more than sufficient to sustain a conviction.

Excessive intake of alcohol in the fraternity initiations can be considered as hazing. In Oja v. Grand
Chapter of Theta Chi Fraternity Inc.,60 a 17-year old college freshman died as a result of aspirating
his own vomit after consuming excessive amounts of alcohol in a fraternity initiation ritual. The
defendants in the said case contended that they only furnished the alcohol drinks to the victim. The
court denied the defense because such acts of the fraternity effectively contributed to the death of the
victim as part of their hazing.

Even in high school, hazing could exist. In Nice v. Centennial Area School District,61 a tenth-grade
wrestler at William Tennet High School was subjected to various forms of hazing, including; a ritual
where the victim was forcibly held down, while a teammate sat on his face with his buttocks exposed.
The parents of the student sued the school because it failed to prevent the incident despite its
knowledge of the hazing rites. The court approved the settlement of the parties in the amount
ofUS$151,000.00.

More recently, the case of Yost v. Wabash College62 involved the hazing of an 18-year old freshman,
who suffered physical and mental injuries in the initiation rites conducted by the Phi Kappa Psi
fraternity. As a pledge, the victim was thrown into a creek and was placed in a chokehold, until he lost
consciousness. The court upheld that action against the local fraternity because, even if the student
consented, the fraternity had the duty to ensure the safety of its activities.

The US anti-hazing laws and jurisprudence show that victims of hazing can properly attain redress
before the court. By crafting laws and prosecuting offenders, the state can address the distinct
dilemma of hazing.

Anti-Hazing Law in the

Philippines

R.A. No. 8049, or the Anti-Hazing Law .of 1995, has been enacted to regulate hazing and other forms
of initiation rites in fraternities, sororities, and other organizations. It was in response to the rising
incidents of death of hazing victims, particularly the death of Leonardo "Lenny" Villa.63 Despite its
passage, reports of deaths resulting from i hazing continue to emerge. Recent victims were Guillo
Servando of the College of St. Benilde, Marc Andre Marcos and Marvin Reglos of the San', Beda
 101

College - Manila, and Cris Anthony Mendez of the University of the Philippines - Diliman. With the
continuity of these senseless tragedies, one question implores for an answer: is R.A. No. 8049 a
sufficient deterrent against hazing?

To answer the question, the Court must dissect the provisions of the law and scrutinize its effect,
implication and application.

Criminal law has long divided crimes into acts wrong in themselves called acts mala in se; and acts
which would not be wrong but for the fact that positive law forbids them, called acts mala prohibita.
This distinction is important with reference to the intent with which a wrongful act is done. The rule on
the subject is that in acts mala in se, the intent governs; but in acts mala prohibita, the only inquiry is,
has the law been violated? When an act is illegal, the intent of the offender is immaterial.64 When the
doing of an act is prohibited by law, it is considered injurious to public welfare, and the doing of the
prohibited act is the crime itself.65

A common misconception is that all mala in se crimes are found in the Revised Penal Code (RPC),
while all mala prohibita crimes are provided by special penal laws. In reality, however, there may be
mala in se crimes under special laws, such as plunder under R.A. No. 7080, as amended.66
Similarly, there may be mala prohibita crimes defined in the RPC, such as technical malversation.67

The better approach to distinguish between mala in se and mala prohibita crimes is the determination
of the inherent immorality or vileness of the penalized act. If the punishable act or .omission is
immoral in itself, then it is a crime mala in se,- on the contrary, if it is not immoral in itself, but there is
a statute prohibiting its commission b)". reasons of public policy, then it is mala prohibita. In the final
analysis, whether or not a crime involves moral turpitude is ultimately a question of fact and frequently
depends on all the circumstances surrounding the violation of the statute.68

The crime of hazing under R.A. No. 8049 is malum prohibitum. The Senate deliberations would show
that the lawmakers intended the anti-hazing statute to be ma/um prohibitum, as follows: SENATOR
GUINGONA: Most of these acts, if not all, are already punished under the Revised Penal Code.

SENATOR LINA. That is correct, Mr. President.

SENATOR GUINGONA If hazing is done at present and it results in death, the charge would be
murder or homicide.

SENATOR LINA. That is correct, Mr. President.

SENATOR GUINGONA. If it does not result in death, it may be frustrated homicide or serious
physical injuries.

SENATOR LINA. That is correct, Mr. President.

SENATOR GUINGONA. Or, if the person who commits sexual abuse does so it can be penalized
under rape or acts of lasciviousness.

SENATOR LINA. That is correct, Mr. President.

SENATOR GUINGONA. So, what is the rationale for making a new offense under this definition of the
crime of hazing?
 102

SENATOR LINA. To discourage persons or group of persons either composing a sorority, fraternity or
any association from making this requirement of initiation that has already resulted in these specific
acts or results, Mr. President.

That is the main rationale. We want to send a strong signal across the land that no group or
association can require the act of physical initiation before a person can become a member without
being held criminally liable.

xxx xxx xxx

SENATOR GUINGONA. Yes, but what would be the rationale for that imposition? Because the
distinguished Sponsor has said that he is not punishing a mere organization, he is not seeking the
punishment of an initiation into a club or organization, he is seeking the punishment of certain acts
that resulted in death, etcetera as a result of hazing which are already covered crimes.

The penalty is increased in one, because we would like to discourage hazing, abusive hazing, but it
may be a legitimate defense for invoking two or more charges or offenses, because these very same
acts are already punishable under the Revised Penal Code

That is my difficulty, Mr. President.

SENATOR LINA. x x x

Another point, Mr. President, is this, and this is a very telling difference: When a person or group of
persons resort to hazing as a requirement for gaining entry into an organization, the intent to commit
a wrong is not visible or is not present, Mr. President. Whereas, in these specific crimes, Mr.
President, let us say there is death or there is homicide, mutilation, if one files a case, then the
intention to commit a wrong has to be proven. But if the crime of hazing is the basis, what is important
is the result from the act of hazing.

To me, that is the basic difference and that is what will prevent or deter the sororities or fraternities;
that they should really shun this activity called "hazing." Because, initially, these fraternities or
sororities do not even consider having a neophyte killed or maimed or that acts of lasciviousness are
even committed initially, Mr. President.

So, what we want to discourage, is the so-called initial innocent act. That is why there is need to
institute this kind of hazing. Ganiyan po ang nangyari. Ang fraternity o ang sorority ay magre-recruit.
Wala talaga silang intensiybng makamatay. Hindi ko na babanggitin at buhay pa iyong kaso. Pero
dito sa anim o pito na namatay nitong nakaraang taon, walang intensiyong patayin talaga iyong
neophyte. So, kung maghihintay pa tayo, na saka lamang natin isasakdal ng murder kung namatay
na, ay after the fact ho iyon. Pero, kung sasabihin natin sa mga kabataan na: "Huwag ninyong
gagawin iyong hazing. Iyan ay kasalanan at kung mamatay diyan, mataas ang penalty sa inyo."

xxx xxx xxx

SENATOR GUINGONA. I join the lofty motives, Mr. President, of the distinguished Sponsor. But I am
again disturbed by his statement that the prosecution does not have to prove the intent that resulted
in the death, that resulted in the serious physical injuries, that resulted in the acts of lasciviousness or
deranged mind. We do not have to prove the willful intent of the accused in proving or establishing
the crime of hazing. This seems, to me, a novel situation where we create the special crime without
having to go into the intent, which is one of the basic elements of any crime.
 103

If there is no intent, there is no crime. If the intent were merely to initiate, then there is no offense.
And even the distinguished Sponsor admits that the organization, the intent to initiate, the intent to
have a new society or a new club is, per se, not punishable at all. What are punishable are the acts
that lead to the result. But if these results are not going to be proven by intent, but just because there
was hazing, I am afraid that it will disturb the basic concepts of the Revised Penal Code, Mr.
President.

SENATOR LINA. Mr. President, the act of hazing, precisely, is being criminalized because in the
context of what is happening in the sororities and fraternities, when they conduct hazing, no one will
admit that their intention is to maim or to kill. So, we are already criminalizing the fact of inflicting
physical pain. Mr. President, it is a criminal act and we want it stopped, deterred, discouraged.

If that occurs, under this law, there is no necessity to prove that the masters intended to kill or the
masters intended to maim. What is important is the result of the act of hazing. Otherwise, the masters
or those who inflict the physical pain can easily escape responsibility and say, "We did not have the
intention to kill. This is part of our initiation rites. This is normal. We do not have any intention to kill or
maim."

This is the lusot, Mr. President. They might as well have been charged therefore with the ordinary
crime of homicide, mutilation, etcetera, where the prosecution will have a difficulty proving the
elements if they are separate offenses.

xxx xxx xxx

SENATOR LINA. x x x

I am very happy that the distinguished Minority Leader brought out the idea of intent or whether it is
mala in se or mala prohibita. There can be a radical amendment if that is the point that he wants to go
to.

If we agree on the concept, then, maybe, we can just make this a special law on hazing. We will not
include this anymore under the Revised Penal Code. That is a possibility. I will not foreclose that
suggestion, Mr. President.69

[Emphases Supplied]

Having in mind the potential conflict between the proposed law and the core principle of mala in se
adhered to under the RPC, the Congress did not simply enact an amendment thereto. Instead, it
created a special law on hazing, founded upon the principle of mala prohibita.70 In Vedana v.
Valencia,71 the Court noted that in our nation's very recent history, the people had spoken, through
the Congress, to deem conduct constitutive of hazing, an act previously considered harmless by
custom, as criminal.72 The act of hazing itself is not inherently immoral, but the law deems the same
to be against public policy and must be prohibited. Accordingly, the existence of criminal intent is
immaterial in the crime of hazing. Also, the defense of good faith cannot be raised in its
prosecution.73

Section 1 of R.A. No. 8049 defines hazing as an initiation rite or practice as a prerequisite for
admission into membership in a fraternity, sorority or organization by placing the recruit, neophyte or
applicant in some embarrassing or humiliating situations such as forcing him to do menial, silly,
foolish and other similar tasks or activities or otherwise subjecting him to physical or psychological
suffering or injury. From the said definition, the elements of the crime of hazing can be determined:
 104

1. That there is an initiation rite or practice as a prerequisite for admission into membership in
a fraternity, sorority or organization;

2. That there must be a recruit, neophyte or applicant of the fraternity, sorority or organization;
and

3. That the recruit, neophyte or applicant is placed in some embarrassing or humiliating

situations such as forcing him to do menial, silly, foolish and other similar tasks or activities or
otherwise subjecting him to physical or psychological suffering or injury.

From the said definition of hazing, it is apparent that there must be an initiation rite or practice
performed by the fraternities, sororities or organization. The law, however, did not limit the definition
of these groups to those formed within academic colleges and universities.74 In fact, the second
paragraph of Section 1 provides that the term "organization" shall include any club or the Armed
Forces of the Philippines (AFP), Philippine National Police (PNP), Philippine Military Academy (PMA),
or officer and cadet corp of the Citizen's Military Training and Citizen's Army Training. Even the
president, manager, director or other responsible officer of a corporation engaged in hazing as a
requirement for employment are covered by the law.75 R.A. No. 8049 qualifies that the physical,
mental and psychological testing and training procedure and practices to determine and enhance the
physical, mental and psychological fitness of prospective regular members of the AFP and the PNP,
as approved by the Secretary of National Defense and the National Police Commission, duly
recommended by the Chief of Staff of the AFP and the Director General of the PNP, shall not be
considered as hazing.

And not all forms of initiation rites are prohibited by the law. Section 2 thereof provides that initiation
rites of fraternities, sororities or organizations shall be allowed provided that the following requisites
are met:

1. That the fraternity, sorority or organization has a prior written notice to the school authorities
or head of organization;

2. The said written notice must be secured at least seven (7) days before the conduct of such
initiation;

3. That the written notice shall indicate:

a. The period of the initiation activities, which shall not exceed three (3) days;

b. The names of those to be subjected to such activities; and

c. An undertaking that no physical violence be employed by anybody during such

initiation rites. Section 3 of R.A. No. 8049 imposes an obligation to the head of the
school or organization or their representatives that they must assign at least two (2)
representatives, as the case may be, to be present during these valid initiations. The
duty of such representative ,is to see to it that no physical harm of any kind shall be
inflicted upon a recruit, neophyte or applicant.

Noticeably, the law does not provide a penalty or sanction to fraternities, sororities or organizations
that fail to comply with the notice requirements of Section 2. Also, the school and organization
administrators do not have a clear liability for non-compliance with Section 3.
 105

Any person who commits the crime of hazing shall be liable in accordance with Section 4 of the law,
which provides different classes of persons who are held liable as principals and accomplices.

The first class of principals would be the actual participants in the hazing. If the person subjected to
hazing or other forms of initiation rites suffers any physical injury or dies as a result thereof, the
officers and members of the fraternity, sorority or organization who actually participated in the
infliction of physical harm shall be liable as principals. Interestingly, the presence of any person
during the hazing is prima facie evidence of actual participation, unless he prevented the commission
of the acts punishable herein.76

The prescribed penalty on the principals depends on the extent of injury inflicted to the victim.77 The
penalties appear to be similar to that of homicide, serious physical injuries, less serious physical
injuries, and slight physical injuries under the RPC,78 with the penalties for hazing increased one
degree higher. Also, the law provides several circumstances which would aggravate the imposable
penalty.79

Curiously, although hazing has been defined as consisting of those activities involving physical or
psychological suffering or injury, the penalties for hazing only covered the infliction of physical harm.
At best, the only psychological injury recognized would be causing insanity to the victim. Conversely,
even if the victim only sustained physical injuries which did not incapacitate him, there is still a
prescribed penalty.80

The second class of principals would be the officers, former officers, or alumni of the organization,
group, fraternity or sorority who actually planned the hazing.81 Although these planners were not
present when the acts constituting hazing were committed, they shall still be liable as principals. The
provision took in consideration the non-resident members of the organization, such as their former
officers or alumni.

The third class of principals would ht; officers or members of an organization group, fraternity or
sorority who knowingly cooperated in carrying out the hazing by inducing the victim to be present
thereat.82 These officers or members are penalized, not because of their direct participation in the
infliction of harm, but due to their indispensable cooperation in the crime by inducing the victim to
attend the hazing.

The next class of principals would be the fraternity or sorority's adviser who was present when the
acts constituting hazing were committed, and failed to take action to prevent them from occurring.83
The liability of the adviser arises, not only from his mere presence in the hazing, but also his failure to
prevent the same.

The last class of principals would be the parents of the officers or members of the fraternity, group, or
organization.84 The hazing must be held in the home of one of the officers or members. The parents
must have actual knowledge of the hazing conducted in their homes and failed to take any action to
avoid the same from occurring.

The law also provides for accomplices in the crime of hazing. The school authorities, including faculty
members, who consented to the hazing or who have actual knowledge thereof, but failed to take any
action to prevent the same from occurring shall be punished as accomplices.85 Likewise, the owner
of the place where the hazing was conducted can also be an accomplice to the crime.86 The owner
of the place shall be liable when he has actual knowledge of the hazing conducted therein and he
failed to take any steps to stop the same. Recognizing the malum prohibitum characteristic of hazing,
the law provides that any person charged with the said crime shall not be entitled to the mitigating
circumstance that there was no intention to commit so grave a wrong.87 Also, the framers of the law
 106

intended that the consent of the victim shall not be a defense in hazing. During the discussion of
whether sodomy shall be included as a punishable act under the law, the issue of consent was
tackled: SENATOR LINA x x x

But sodomy in this case is connected with hazing, Mr. President. Such that the act may even be
entered into with consent. It is not only sodomy. The infliction of pain may be done with the consent of
the neophyte. If the law is passed, that does not make the act of hazing not punishable because the
neophyte accepted the infliction of pain upon himself.

If the victim suffers from serious physical injuries, but the initiator said, "Well, he allowed it upon
himself. He consented to it." So, if we allow that reasoning that sodomy was done with the consent of
the victim, then we would not have passed any law at all. There will be no significance if we pass this
bill, because it will always be a defense that the victim allowed the infliction of pain or suffering. He
accepted it as part of the initiation rites.

But precisely, Mr. President that is one thing that we would want to prohibit. That the defense of
consent will not apply because the very act of inflicting physical pain or psychological suffering is, by
itself, a punishable act. The result of the act of hazing, like death or physical injuries merely
aggravates the act with higher penalties. But the defense of consent is not going to nullify the criminal
nature of the act.

So, if we accept the amendment that sodomy can only aggravate the offense if it is committed without
consent of the victim, then the whole foundation of this proposed law will collapse.

SENATOR BIAZON. Thank you, Mr. President.

SENATOR LINA. Thank you very much.

THE PRESIDENT. Is there any objection to the committee amendment? (Silence.) The Chair hears
none; the same is approved.88

[Emphasis supplied]

Further, the law acknowledges that the offended party in the crime of hazing can seek different
courses of action. n '.'provides that the responsible officials of the school or of the police, military or
citizen's army training organization, may impose the appropriate administrative sanctions on the
person or the persons charged under this provision even before their conviction.89 Necessarily, the
offended party can file either administrative, civil, or criminal actions against the offenders.90

The study of the provisions of R.A. No. 8049 shows that, on paper, it is complete and robust in
penalizing the crime of hazing. It was made malum prohibitum to discount criminal intent and disallow
the defense of good faith. It took into consideration the different participants and contributors in the
hazing activities. While not all acts cited in the law are penalized, the penalties imposed therein
involve various and serious terms of imprisonment to discourage would-be offenders. Indeed, the law
against hazing is ideal and profound. As to whether the law can be effectively implemented, the Court
begs to continue on the merits of the case.

The Information properly

charged the offense proved

 107

The petitioners claim that the amended ,information avers a criminal charge of hazing by actual
participation, but the only offense proved during the trial was hazing by inducement. Their1 contention
must fail. The Amended Information reads:

That on or about 2:30 in the early morning of January 14, 2006, at Villa Novaliches, Brgy. Pansol,
Calamba City, Province of Laguna and within the jurisdiction of the Honorable Court, the above-
named accused, during a planned initiation rite and being then officers and members of Alpha Phi
Omega fraternity and present thereat, in conspiracy with more or less twenty other members and
officers, whose identity is not yet known, did then and there willfully, unlawfully and feloniously assault
and use personal violence upon one MARLON VILLANUEVA y MEJILLA, a neophyte thereof and as
condition for his admission to the fraternity, thereby subjecting him to physical harm, resulting to his
death, to the damage and prejudice of the heirs of the victim. CONTRARY TO LAW.91

On the manner of how the Information should be worded, Section 9, Rule 110 of the Rules of Court,
is enlightening:

Section 9. Cause of the accusation. The acts or omissions complained of as constituting the offense
and the qualifying and aggravating circumstances must be stated in ordinary and concise language
and not necessarily in the language used in the statute but in terms sufficient to enable a person of
common understanding to know what offense is being charged as well as its qualifying and
aggravating circumstances and for the court to pronounce judgment.

It is evident that the Information need not use the exact language of the statute in alleging the acts or
omissions complained of as constituting the offense. The test is whether it enables a person of
common understanding to know the charge against him, and the court to render judgment properly.92

The Court agrees with the OSG that the "planned initiation rite" as stated in the information included
the act of inducing Villanueva to attend it. In ordinary parlance, a planned event can be understood to
have different phases. Likewise, the hazing activity had different stages and the perpetrators had
different roles therein, not solely inflicting physical injury to the neophyte. One of the roles of the
petitioners in the hazing activity was to induce Villanueva to be present. Dungo and Sibal not only
induced Villanueva to be present at the resort, but they actually brought him there. They fulfilled their
roles in the planned hazing rite which eventually led to the death of Villanueva. The hazing would not
have been accomplished were it not for the acts of the petitioners that induced the victim to be
present.

Secrecy and silence are common characterizations of the dynamics of hazing.93 To require the
prosecutor to indicate every step of the planned initiation rite in the information at the inception of the
criminal case, when details of the clandestine hazing are almost nil, would be an arduous task, if not
downright impossible. The law does not require the impossible (lex non cognit ad impossibilia).

The proper approach would be to require the prosecution to state every element of the crime of
hazing, the offenders, and the accompanying circumstances in the planned initiation activity which
has been satisfied in the present case. Accordingly, the amended information sufficiently informed the
petitioners that they were being criminally charged for their roles in the planned initiation rite.

Conspiracy of the
offenders was duly proven

The petitioners assail that the prosecution failed to establish the fact of conspiracy.

The Court disagrees.

 108

A conspiracy exists when two or more persons come to an agreement concerning the commission of
a felony and decide to commit it. To determine conspiracy, there must be a common design to
commit a felony.94 The overt act or acts of the accused may consist of active participation in the
actual commission of the crime itself or may consist of moral assistance to his co-conspirators by
moving them to execute or implement the criminal plan.95

In conspiracy, it need not be shown that the parties actually came together and agreed in express
terms to enter into and pursue a common design. The assent of the minds may be and, from the
secrecy of the crime, usually inferred from proof of facts and circumstances which, taken together,
indicate that they are parts of some complete whole.96 Responsibility of a conspirator is not confined
to the accomplishment of a particular purpose of conspiracy but extends to collateral acts and
offenses incident to and growing out of the purpose intended.97

The lawmakers deliberated on whether the prosecution was still obliged to prove the conspiracy
between the offenders under R.A. 8049, to wit:

SENATOR GUINGONA. Mr. President, assuming there was a group that initiated and a person died.
The charge is murder. My question is: Under this bill if it becomes a law, would the prosecution have
to prove conspiracy or not anymore?

SENATOR LINA. Mr. President, if the person is present during hazing x x x

SENATOR GUINGONA. The persons are present. First, would the prosecution have to prove
conspiracy? Second, would the prosecution have to prove intent to kill or not?

SENATOR LINA. No more. As to the second question, Mr. President, if that occurs, there is no need
to prove intent to kill.

SENATOR GUINGONA. But the charge is murder.

SENATOR LINA. That is why I said that it should not be murder. It should be hazing, Mr. President.98

The Court does not categorically agree that, under R.A. No. 8049, the prosecution need not prove
conspiracy. Jurisprudence dictates that conspiracy must be established, not by conjectures, but by
positive and conclusive evidence. Conspiracy transcends mere companionship and mere presence at
the scene of the crime does not in itself amount to conspiracy. Even knowledge, acquiescence in or
agreement to cooperate, is not enough to constitute one as a party to a conspiracy, absent any active
participation in the commission of the crime with a view to the furtherance of the common design and
purpose.99

R.A. No. 8049, nevertheless, presents a novel provision that introduces a disputable presumption of
actual participation; and which modifies the concept of conspiracy. Section 4, paragraph 6 thereof
provides that the presence of any person during the hazing is prima facie evidence of participation as
principal, unless he prevented the commission of the punishable acts. This provision is unique
because a disputable presumption arises from the mere presence of the offender during the hazing,
which can be rebutted by proving that the accused took steps to prevent the commission of the
hazing.

The petitioners attempted to attack the constitutionality of Section 4 of R.A. No. 8049 before the CA,
hut did not succeed. "[A] finding of prima facie evidence x x x does not shatter the presumptive
innocence the accused enjoys because, before prima facie evidence arises, certain facts have still to
be proved; the trial court cannot depend alone on such evidence, because precisely, it is merely
 109

prima facie. It must still satisfy that the accused is guilty beyond reasonable doubt of the offense
charged. Neither can it rely on the weak defense the latter may adduce."100

Penal laws which feature prima facie evidence by disputable presumptions against the offenders are
not new, and can be observed in the following: (1) the possession of drug paraphernalia gives rise to
prima facie evidence of the use of dangerous drug;101 (2) the dishonor of the check for insufficient
funds is prima facie evidence of knowledge of such insufficiency of funds or credit;102 and (3) the
possession of any good which has been the subject of robbery or thievery shall be prima facie
evidence of fencing.103

Verily, the disputable presumption under R.A. No. 8049 can be related to the conspiracy in the crime
of hazing. The common design of offenders is to haze the victim. Some of the overt acts that could be
committed by the offenders would be to (1) plan the hazing activity as a requirement of the victim's
initiation to the fraternity; (2) induce the victim to attend the hazing; and (3) actually participate in the
infliction of physical injuries.

In this case, there was prima facie evidence of the petitioners' participation in the hazing because of
their presence in the venue. As correctly held by the RTC, the presence of Dungo and Sibal during
the hazing at Villa Novaliches Resort was established by the testimony of Ignacio. She testified that
she saw Sibal emerge from the resort and approach her store, to wit:

MR. DIMACULANGAN

Q: And how many persons from this group did you see again?

WITNESS

A: Three (3), sir.

Q: Where did they come from, did they come out from the resort? Where did this 3 people or this
group of people coming from?

A: Inside the resort, sir.

Q: And around what time was this?

A: Around 9:00, sir.

Q: And what did they do if any if they came out of the resort?

A: They went to my store, sir.

xxxx

Q: Did you have any other visitors to your store that night?

xxxx

A: "Meron po".

Q: Who were these visitors?

 110

A: I don't know their names but I recognize their faces, sir.

Q: If I show you pictures of these people, will you be able to identify them before this Court.

A: Yes, sir.

xxxx

Q: Mrs. Ignacio, I am showing you this picture of persons marked as Exhibit "L" in the Pre-Trial, can
you please look over this document carefully and see if any of the persons whom you said visited
your store is here?

xxxx

A: "Siya rin po."

COURT:

Make it of record that the witness pinpointed to the first picture appearing on the left picture on the
first row.

xxxx

ATIY. PAMAOS:

For the record, your Honor, we manifest that the picture and the name pointed by the witness has
been previously marked as Exhibit "L-3" and previously admitted by the defense as referring to
Gregorio Sibal, Jr., accused in this case…104

Ignacio, also positively identified Dungo as among the guests of Villa Novaliches Resort on the night
of the hazing, to wit:

COURT

Q: xx x Now, when you say other people you could identify who are not in the pictures then how
would you know that these people are indeed those people you could identify?

WITNESS

A: "Iyon pong ... di ba po nagkuwento ako na dumating sila tapos nag shake hands at saka iyong
nagyakapan po ... "

Q: And what will be the significance of the alleged embrace and shake hands for you to say that you
could identify those people?

A: "Hindi po. Noong dumating po sila nasa isang jeep, meron pong lalaki doon sa may tabi ng driver
bumaba siya tapos po noong bumaba siya tapos iyong mga kasamahan nya sa likod nagbaba-an din,
iyon po nagbati-an po sila."

Q: And from these greeting, how could you identify these people?
 111

A: "Ngayon ko lang po napag masdan ang taong iyon, hindi ko po alam na akusado po sa kabila
iyon."

Q: And who was that person?

A: "Siya po, iyon po."

Q: Who are you pointing to?

A: "Iyon pong naka-dilaw na ... " (Witness pointing to Dandy Dungo)

Q: So, are you telling the Court that this person you positively saw seated beside the driver came out
and subsequently embraced and shook hands with the other people from the jeepney, is that your
testimony?

A: Yes, your Honor.105

The testimony of Ignacio was direct and straightforward. Her testimony was given great weight
because she was a disinterested and credible witness. The prosecution indubitably established the
presence of Dungo and Sibal during the hazing. Such gave rise to the prima facie evidence of their
actual participation in the hazing of Villanueva. They were given an opportunity to rebut and
overcome the prima facie evidence of the prosecution by proving that they prevented the commission
of the hazing, yet they failed to do so.

Because of the uncontroverted prima facie evidence against the petitioners, it was shown that they
performed an overt act in the furtherance of the criminal design of hazing. Not only did they induce
the victim to attend the hazing activity, the petitioners also actually participated in it based on the
prima facie evidence. These acts are sufficient to establish their roles in the conspiracy of hazing.

Hence, generally, mere presence at the scene of the crime does not in itself amount to
conspiracy.106 Exceptionally, under R.A. No. 8049, the participation of the offenders in the criminal
conspiracy can be proven by the prima facie evidence due to their presence during the hazing, unless
they prevented the commission of the acts therein.

The guilt of the

petitioners was proven
beyond reasonable doubt

Aside from inducing Villanueva to attend the initiation rites and their presence during the hazing, the
petitioners? guilt was proven beyond reasonable doubt by the sequence of circumstantial evidence
presented by the prosecution. Their involvement in the hazing of Villanueva is not merely based on
prima facie evidence but was also established by circumstantial evidence.

In considering a criminal case, it is critical to start with the law's own starting perspective on the status
of the accused - in all criminal prosecutions, he is presumed innocent of the charge laid unless the
contrary is proven beyond reasonable doubt.107 In criminal law, proof beyond reasonable doubt does
not mean such degree of proof that produces absolute certainty. Only moral certainty is required or
that degree of proof which produces conviction in an unprejudiced mind.108

While it is established that nothing less than proof beyond reasonable doubt is required for a
conviction, this exacting standard does not preclude resort to circumstantial evidence when direct
 112

evidence is not available. Direct evidence is not a condition sine qua non to prove the guilt of an
accused beyond reasonable doubt. For in the absence of direct evidence, the prosecution may resort
to adducing circumstantial evidence to discharge its burden. Crimes are usually committed in secret
and under conditions where concealment is highly probable. If direct evidence is insisted on under all
circumstances, the prosecution of vicious felons who commit heinous crimes in secret or secluded
places will be hard, if not impossible, to prove.109 Needless to state, the crime of hazing is shrouded
in secrecy. Fraternities and sororities, especially the Greek organizations, are secretive in nature and
their members are reluctant to give any information regarding initiation rites.110 The silence is only
broken after someone has been injured so severely that medical attention is required. It is only at this
point that the secret is revealed and the activities become public.111 Bearing in mind the
concealment of hazing, it is only logical and proper for the prosecution to resort to the presentation of
circumstantial evidence to prove it.

The rules on evidence and precedents to sustain the conviction of an accused through circumstantial
evidence require the existence of the following requisites: (1) there are more than one circumstance;
(2) the inference must be based on proven facts; and (3) the combination of all circumstances
produces a conviction beyond reasonable doubt of the guilt of the accused.112 To justify a conviction
upon circumstantial evidence, the combination of circumstances must be such as to leave no
reasonable doubt in the mind as to the criminal liability of the accused. Jurisprudence requires that
the circumstances must be established to form an unbroken chain of events leading to one fair
reasonable conclusion pointing to the accused, to the exclusion of all others, as the author of the
crime.113

The CA meticulously wrote in detail the unbroken chain of circumstantial evidence which established
the petitioners' gult in the death of Villanueva as follows:

1. Marlon Villanueva is a neophyte of Alpha Phi Omega, as testified by his roommate Joey
Atienza.

2. At around 3:00 o'clock in the afternoon of January 13, 2006, Sunga was staying at their
tambayan, talking to her organization mates. Three men were seated two meters way from
her. She identified two of the men as appellants Sibal and Dungo, while she did not know the
third man. The three men were wearing black shirts with the seal of the Alpha Phi Omega.

3. Later at 5:00 o'clock in the afternoon, two more men coming from the entomology wing
arrived and approached the three men. Among the men who just arrived was the victim,
Marlon Villanueva. One of the men wearing black APO shirts handed over to the two fraternity
neophytes some money and told the men "Mamalengke na kayo." He later took back the
money and said, "Huwag na, kami na lang."

4. One of the men wearing a black APO shirt, who was later identified as appellant Dungo,
stood up and asked Marlon if the latter already reported to him, and asked him why he did not
report to him when he was just at the tambayan. Dungo then continuously punched the victim
on his arm. This went on for five minutes. Marlon just kept quiet with his head bowed down.
Fifteen minutes later, the men left going towards the Entomology wing.

5. The deceased Marlon Villanueva was 'last seen alive by Joey Atienza at 7:00 in the evening
of 13 January 2006, from whom he borrowed the shoes he wore at the initiation right [sic].
Marlon told Joey that it was his "finals" night.

6. On January 13, 2006 at around 8:30 to 9:00 o'clock in the evening, Susan Ignacio saw more
than twenty (20) persons arrive at the Villa Novaliches Resort onboard a jeepney.1âwphi1 She
 113

estimated the ages of these persons to be between 20 to 30 years old. Three (3) persons
riding a single motorcycle likewise arrived at the resort.

7. Ignacio saw about fifteen (15) persons gather on top of the terrace at the resort who looked
like they were praying. Later that evening, at least three (3) of these persons went to her store
to buy some items. She did not know their names but could identity [sic] their faces. After she
was shown colored photographs, she pointed to the man later identified as Herald Christopher
Braseros. She also pointed out the man later identified as Gregorio Sibal, Jr.

8. Donato Magat, a tricycle driver plying the route of Pansol, Calamba City, testified that
around 3:00 o'clock in the morning of January 14, 2006, he was waiting for passengers at the
corner of Villa Novaliches Resort when a man approached him and told him that someone
inside the resort needed a ride. Magat then went to the resort and asked the two (2) men
standing by the gate who will be riding his tricycle.

9. The four (4) men boarded his tricycle but Magat noticed that when he touched the body of
the man who was being carried, it felt cold. The said man looked very weak like a vegetable.

10. Seferino Espina y Jabay testified that he worked as a security guard at the J.P. Rizal
Hospital and was assigned at the emergency room. At around 3:00 o'clock in the early morning
of January 14, 2006, he was with another security guard, Abelardo Natividad and hospital
helper Danilo Glindo a.k.a. Gringo, when a tricycle arrived at the emergency room containing
four (4) passengers, excluding the driver. He was an arm's length away from said tricycle. He
identified two of the passengers thereof as appellants Dungo and Sibal. Espina said he and
Glinda helped the passengers unload a body inside the tricycle and brought it to the
emergency room.

11. Afterwards, Espina asked the two meq for identification cards. The latter replied that they
did not bring with them any I.D. or wallet.1âwphi1 Instead of giving their true names, the
appellants listed down their names in the hospital logbook as Brandon Gonzales y Lanzon and
Jericho Paril y Rivera. Espina then told the two men not to leave, not telling them that they
secretly called the police to report the incident which was their standard operating procedure
when a dead body was brought to the hospital.

12. Dr. Ramon Masilungan, who was then the attending physician at the emergency room,
observed that Marlon was motionless, had no heartbeat and already cyanotic.

13. Dr. Masilungan tried to revive Marlon for about 15 to 20 minutes. However, the latter did
not respond to resuscitation and was pronounced dead. Dr. Masilungan noticed a big
contusion hematoma on the left side of the victim's face and several injuries on his arms and
legs. He further attested that Marlon's face was already cyanotic.

14. When Dr. Masilungan pulled down Marlon's pants, he saw a large contusion on both legs
which extended from the upper portion of his thigh down to the couplexial portion or the back
of the knee.

15. Due to the nature, extent and location of Marlon's injuries, Dr. Masilungan opined that he
was a victim of hazing. Dr. Masilungan is familiar with hazing injuries, having undergone
hazing when he was a student and also because of his experience treating victims of hazing
incidents.
 114

16. Dr. Roy Camarillo, Medico-Legal Officer of the PNP Crime Laboratory in Region IV, Camp
Vicente Lim, Canlubang, Calamba City, testified that he performed an autopsy on the cadaver
of the victim on January 14j 2006; that the victim's cause of death was blunt head trauma.
From 1999 to 2006, he was able to conduct post-mortem examination of the two (2) persons
whose deaths were attributed to hazing. These two (2) persons sustained multiple contusions
and injuries on different parts of their body, particularly on the buttocks, on both upper and
lower extremities. Both persons died of brain hemorrhage. Correlating these two cases to the
injuries found on the victim's body, Dr. Camarillo attested that the victim, Marlon Villanueva,
sustained similar injuries to those two (2) persons. Based on the presence of multiple injuries
and contusions on his body, he opined that these injuries were hazing-related.114

Petitioners Dungo and Sibal, on the other hand, presented the defense of denial and alibi. These
defenses, however, must fail. Time and time again, this Court has ruled that denial and alibi are the
weakest of all defenses, because they are easy to concoct and fabricate.115 As properly held by the
RTC, these defenses cannot prevail over the positive and unequivocal identification of the petitioners
by prosecution witnesses Sunga and Ignacio. The testimonies of the defense witnesses also lacked
credibility and reliability. The corroboration of defense witness Rivera was suspect because she was
the girlfriend of Dungo, and it was only logical and emotional that she would stand by the man she
loved and cared for. The testimonies of their fellow fraternity brothers, likewise, do not hold much
weight because they had so much at stake in the outcome of the case. Stated differently, the
petitioners did not present credible and. disinterested witnesses to substantiate their defenses of
denial and alibi.

After a careful review of the records, the Court agrees with the CA and the R TC that the
circumstantial evidence presented by the prosecution was overwhelming enough to establish the guilt
of the petitioners beyond a reasonable doubt. The unbroken chain of events laid down by the CA
leaves us no other conclusion other than the petitioners' participation in the hazing. They took part in
the hazing and, together; with their fellow fraternity officers and members, inflicted physical injuries to
Villanueva as a requirement of his initiation to the fraternity. The physical injuries eventually took a toll
on the body of the victim, which led to his death. Another young life lost.

With the fact of hazing, the identity ,of the petitioners, and their participation therein duly proven, the
moral certainty that produces conviction in an unprejudiced mind has been satisfied.

Final Note

Hazing has been a phenomenon that has beleaguered the country's educational institutions and
communities. News of young men beaten to death as part of fraternities' violent initiation rites
supposedly to seal fraternal bond has sent disturbing waves to lawmakers. Hence, R.A. No. 8049
was signed into to law on June 7, 1995. Doubts on the effectiveness of the law were raised. The
Court, however, scrutinized its provisions and it is convinced that the law is rigorous in penalizing the
crime of hazing.

Hopefully, the present case will serve as a guide to the bench and the bar on the application of R.A.
No. 8049. Through careful case-build up and proper presentation of evidence before the court, it is
not impossible for the exalted constitutional presumption of innocence of the accused to be overcome
and his guilt for the crime of hazing be proven beyond reasonable doubt. The prosecution must bear
in mind the secretive nature of hazing, and carefully weave its chain of circumstantial evidence.
Likewise, the defense must present a genuine defense and substantiate the same through credible
and reliable witnesses. The counsels of both parties must also consider hazing as a malum
prohibitum crime and the law's distinctive provisions.
 115

While the Court finds R.A. No. 8049 adequate to deter and prosecute hazing, the law is far from
perfect. In Villareal v. People,116 the Court suggested that the fact of intoxication and the presence of
non-resident or alumni fraternity members during hazing should be considered as aggravating
circumstances that would increase the applicable penalties. Equally, based on the discussion earlier,
this Court suggests some further amendments to the law. First, there should be a penalty or liability
for noncompliance with Section 2, or the written notice requirement, and with Section 3, or the
representation requirement. Second, the penalties under Section 4 should also consider the
psychological harm done to the victim of hazing. With these additional inputs on R.A. No. 8049, the
movement against hazing can be invigorated. R.A. No. 8049 is a democratic response to the uproar
against hazing. It demonstrates that there must, and should, be another way of fostering brotherhood,
other than through the culture of violence and suffering. The senseless deaths of these young men
shall never be forgotten, for justice is the spark that lights the candles of their graves.

WHEREFORE, the petition is DENIED. The April 26, 2013 Decision and the October 8, 2013
Resolution of the Court of Appeals in CAG.R. CR-H.C. No. 05046 are hereby AFFIRMED in toto. Let
copies of this Decision be furnished to the Secretary of the Department of Justice as guidance for the
proper implementation and prosecution of violators of R.A. No. 8049; and to the Senate President
and the Speaker of the House of Representatives for possible consideration of the amendment of the
Anti-Hazing Law to include the penalty for noncompliance with its Section 2 and 3, and the :penalty
for the psychological harms to the surviving victims of hazing.

SO ORDERED.
 116

G.R. No. 188551 February 27, 2013

EDMUNDO ESCAMILLA y JUGO, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

SERENO, J.:

This is a Petition for Review on Certiorari 1 dated 20 August 2009. It seeks a review of the 10 June
2009 Resolution2 of the Court of Appeals (CA) in CA-G.R. CR. No. 30456, which denied the Motion
for Reconsideration3 of the 10 November 2008 CA Decision4 affirming the conviction of Edmundo
Escamilla (petitioner) for frustrated homicide.

BACKGROUND

The facts of this case, culled from the records, are as follows:

Petitioner has a house with a sari-sari store along Arellano Street, Manila.5 The victim, Virgilio Mendol
(Mendol), is a tricycle driver whose route traverses the road where petitioner's store is located. 6

Around 2:00 a.m. of 01 August 1999, a brawl ensued at the comer of Estrada and Arellano Streets,
Manila.7 Mendol was about to ride his tricycle at this intersection while facing Arellano Street. 8
Petitioner, who was standing in front of his store, 30 meters away from Mendol, 9 shot the latter four
times, hitting him once in the upper right portion of his chest. 10 The victim was brought to Ospital ng
Makati for treatment11 and survived because of timely medical attention.12

The Assistant City Prosecutor of Manila filed an Information 13 dated 01 December 1999 charging
petitioner with frustrated homicide. The Information reads:

That on or about August 1, 1999, in the City of Manila, Philippines, the said accused, with intent to
kill, did then and there wilfully, unlawfully and feloniously attack, assault and use personal violence
upon the person of one Virgilio Mendol, by then and there shooting the latter with a .9mm Tekarev
pistol with Serial No. 40283 hitting him on the upper right portion of his chest, thereby inflicting upon
him gunshot wound which is necessarily fatal and mortal, thus performing all the acts of execution
which should have produced the crime of Homicide as a consequence, but nevertheless did not
produce it by reason of causes, independent of his will, that is, by the timely and able medical
assistance rendered to said Virgilio Mendol which prevented his death.

CONTRARY TO LAW.

Upon arraignment, petitioner pleaded not guilty. 14 During trial, the prosecution presented the
testimonies of Mendol, Joseph Velasco (Velasco) and Iluminado Garcelazo (Garcelazo), who all
positively identified him as the shooter of Mendol. 15 The doctor who attended to the victim also
testified.16 The documentary evidence presented included a sketch of the crime scene, the Medical
Certificate issued by the physician, and receipts of the medical expenses of Mendol when the latter
was treated for the gunshot wound.17 In the course of the presentation of the prosecution witnesses,
the defense requested an ocular inspection of the crime scene, a request that was granted by the
court.18 On the other hand, the defense witnesses are petitioner himself, his wife, Velasco and
Barangay Tanod George Asumbrado (Asumbrado).19 The defense offered the results of the paraffin
 117

test of petitioner and the transcript of stenographic notes taken during the court’s ocular inspection of
the crime scene.20

The Regional Trial Court (RTC) held that the positive testimonies of eyewitnesses deserve far more
weight and credence than the defense of alibi. 21 Thus, it found petitioner guilty of frustrated
homicide.22 The dispositive portion reads:

WHEREFORE, the Court finds the accused Edmund Escamilla Y Jugo GUILTY beyond reasonable
doubt of the crime of Frustrated Homicide under Articles 249 and 50 [sic] of the Revised Penal Code,
and hereby sentences the accused to suffer an indeterminate sentence of six (6) months and one (1)
day of prision correccional as minimum, to eight (8) years and one (1) day of prision mayor as
maximum. Accused is hereby ordered to indemnify complainant Virgilio Mendol the sum of
₱34,305.16 for actual damages, ₱30,000.00 for moral damages.

SO ORDERED.23

Petitioner filed a Notice of Appeal dated 14 July 2006. 24 In the brief that the CA required him to file,25
he questioned the credibility of the prosecution witnesses over that of the defense. 26 On the other
hand, the Appellee’s Brief27 posited that the prosecution witnesses were credible, because there were
no serious discrepancies in their testimonies.28 Petitioner, in his Reply brief,29 said that the
prosecution witnesses did not actually see him fire the gun. 30 Furthermore, his paraffin test yielded a
negative result.31

The CA, ruling against petitioner, held that the issue of the credibility of witnesses is within the
domain of the trial court, which is in a better position to observe their demeanor.32 Thus, the CA
upheld the RTC’s appreciation of the credibility of the prosecution witnesses in the present case. 33
Also, the CA ruled that the victim’s positive and unequivocal identification of petitioner totally
destroyed his defense of alibi. Hence, it found no reason to disbelieve Mendol’s testimony.34 In
addition, it said that a paraffin test is not a conclusive proof that a person has not fired a gun and is
inconsequential when there is a positive identification of petitioner.35

A Motion for Reconsideration36 dated 08 December 2008 was filed by petitioner, who asserted that
the defense was able to discredit the testimony of the victim. 37

In its 10 June 2009 Resolution,38 the CA denied petitioner’s Motion for Reconsideration for being
without merit, because the matters discussed therein had already been resolved in its 10 November
2008 Decision.39

Hence, this Petition40 assailing the application to this case of the rule that the positive identification of
the accused has more weight than the defense of alibi. 41 This Court resolved to require the
prosecution to comment on the Petition.42 In his Comment43 dated 15 December 2009, the victim said
that his positive identification of petitioner was a direct evidence that the latter was the author of the
crime.44 Furthermore, what petitioner raised was allegedly a question of fact, which is proscribed by a
Rule 45 petition.45 Thus, the victim alleged, there being no new or substantial matter or question of
law raised, the Petition should be denied.46

We then obliged petitioner to file a reply. 47 In his Reply dated 01 March 2010,48 he assigned as an
error the application by the CA of the rule that the positive identification of the accused has more
weight than the defense of alibi.49 He posits that the lower court manifestly overlooked relevant facts
not disputed by the parties, but if properly considered would justify a different conclusion. 50 This
Court, he said, should then admit an exception to the general rule that the findings of fact of the CA
are binding upon the Supreme Court.51
 118

ISSUES

The questions before us are as follows:

I. Whether the prosecution established petitioner’s guilt beyond reasonable doubt. 52

II. Whether a defense of alibi, when corroborated by a disinterested party, overcomes the positive
identification by three witnesses.53

COURT’S RULING

We deny the Petition.

I. The prosecution proved petitioner’s guilt beyond reasonable doubt.

A. Petitioner was positively identified by three witnesses.

Petitioner argues that there was reasonable doubt as to the identity of the shooter. 54 He is wrong. As
correctly held by the RTC and affirmed by the CA, the identity of the assailant was proved with moral
certainty by the prosecution, which presented three witnesses – the victim Mendol, Velasco, and
Garcelazo – who all positively identified him as the shooter.55 We have held that a categorical and
consistently positive identification of the accused, without any showing of ill motive on the part of the
eyewitnesses, prevails over denial.56 All the three witnesses were unswerving in their testimonies
pointing to him as the shooter. None of them had any ulterior motive to testify against him.

Mendol said that he was about to ride his tricycle at the corner of Arellano and Estrada Streets, when
petitioner, who was in front of the former’s store, shot him. 57 The first shot hit its target, but petitioner
continued to fire at the victim three more times, and the latter then started to run away. 58

Velasco, who was also at the corner of Estrada and Arellano Streets, heard the first shot, looked
around, then saw petitioner firing at Mendol three more times. 59

Lastly, Garcelazo testified that while he was buying bread from a bakery at that same street corner,
he heard three shots before he turned his head and saw petitioner pointing a gun at the direction of
the victim, who was bloodied in the right chest.60 Garcelazo was just an arm’s length away from
him.61

The three witnesses had a front view of the face of petitioner, because they were all facing Arellano
Street from its intersection with Estrada Street, which was the locus criminis.62 Although the crime
happened in the wee hours of the morning, there was a street lamp five meters from where petitioner
was standing when he shot the victim, thus allowing a clear view of the assailant’s face. 63 They all
knew petitioner, because they either bought from or passed by his store. 64

B. The intent to kill was shown by the continuous firing at the victim even after he was hit.

Petitioner claims that the prosecution was unable to prove his intent to kill. 65 He is mistaken. The
intent to kill, as an essential element of homicide at whatever stage, may be before or simultaneous
with the infliction of injuries.66 The evidence to prove intent to kill may consist of, inter alia, the means
used; the nature, location and number of wounds sustained by the victim; and the conduct of the
malefactors before, at the time of, or immediately after the killing of the victim.67
 119

Petitioner’s intent to kill was simultaneous with the infliction of injuries. Using a gun, 68 he shot the
victim in the chest. 69 Despite a bloodied right upper torso, the latter still managed to run towards his
house to ask for help. 70 Nonetheless, petitioner continued to shoot at him three more times, 71 albeit
unsuccessfully.72 While running, the victim saw his nephew in front of the house and asked for help. 73
The victim was immediately brought to the hospital on board an owner-type jeep.74 The attending
physician, finding that the bullet had no point of exit, did not attempt to extract it; its extraction would
just have caused further damage.75 The doctor further said that the victim would have died if the latter
were not brought immediately to the hospital. 76 All these facts belie the absence of petitioner’s intent
to kill the victim.

II. Denial and alibi were not proven.

In order for alibi to prosper, petitioner must establish by clear and convincing evidence that, first, he
was in another place at the time of the offense; and, second, it was physically impossible for him to
be at the scene of the crime. 77 The appreciation of the defense of alibi is pegged against this
standard and nothing else. Petitioner, as found by both the RTC and CA, failed to prove the presence
of these two requisite conditions. Hence, he was wrong in asserting that alibi, when corroborated by
other witnesses, succeeds as a defense over positive identification. 78

A. Petitioner was unable to establish that he was at home at the time of the offense.

The alibi of petitioner was that he was at home asleep with his wife when Mendol was shot.79 To
support his claim, petitioner presented the testimonies of his wife and Asumbrado. 80

1. The wife of petitioner did not know if he was at home when the shooting happened.

The wife of petitioner testified that both of them went to sleep at 9:00 p.m. and were awakened at
3:00 a.m. by the banging on their door.81 However, she also said that she did not know if petitioner
stayed inside their house, or if he went somewhere else during the entire time she was asleep.82 Her
testimony does not show that he was indeed at home when the crime happened. At the most, it only
establishes that he was at home before and after the shooting. Her lack of knowledge regarding his
whereabouts between 1:00 a.m. and 3:00 a.m. belies the credibility of his alibi. Even so, the
testimonies of relatives deserve scant consideration, especially when there is positive identification 83
by three witnesses.

2. Asumbrano did not see the entire face of the shooter.

Petitioner is questioning why neither the RTC nor the CA took into account the testimony of
Asumbrado, the Barangay Tanod on duty that night.84 Both courts were correct in not giving weight to
his testimony.

Asumbrado said that he was there when the victim was shot, not by appellant, but by a big man who
was in his twenties.85 This assertion was based only on a back view of the man who fired the gun 12
meters away from Asumbrado.86 The latter never saw the shooter’s entire face.87 Neither did the
witness see the victim when the latter was hit.88 Asumbrado also affirmed that he was hiding when
the riot took place. 89 These declarations question his competence to unequivocally state that indeed
it was not petitioner who fired at Mendol.

B. Petitioner's home was just in front of the street where the shooting occurred.

Physical impossibility refers to the distance between the place where the accused was when the
crime transpired and the place where it was committed, as well as the facility of access between the
 120

two places. 90 Petitioner failed to prove the physical impossibility of his being at the scene of the crime
at the time in question.

Both the prosecution and the defense witnesses referred to the front of appellant's house or store
whenever they testified on the location of the shooter. Petitioner was in front of his house when he
shot the victim, according to Velasco's testimony. 91 Meanwhile the statement of Asumbrado that the
gate of the store of the petitioner was closed when the shooting happened 92 can only mean that the
latter's house and store were both located in front of the scene of the crime.1âwphi1

Petitioner proffers the alibi that he was at home, instead of showing the impossibility of his authorship
of the crime. His alibi actually bolsters the prosecution's claim that he was the shooter, because it
placed him just a few steps away from the scene of the crime. The charge is further bolstered by the
testimony of his wife, who could not say with certainty that he was at home at 2:00a.m.- the
approximate time when the victim was shot.

Based on the foregoing, it cannot be said that the lower courts overlooked any fact that could have
justified a different conclusion. Hence, the CA was correct in affirming the R TC 's Decision that
petitioner, beyond reasonable doubt, was the assailant.

WHEREFORE, in view of the foregoing, the Petition is DENIED. The 10 June 2009 Resolution 93 and
10 November 2008 Decision94 of the Court of Appeals in CA-G.R. CR. No. 30456 are hereby
AFFIRMED in toto.

SO ORDERED
 121

JASON IVLER y AGUILAR, G.R. No. 172716

Petitioner,
Present:

CARPIO, J. Chairperson,
CARPIO MORALES, *
- versus - PERALTA,
ABAD, and
MENDOZA, JJ.
HON. MARIA ROWENA MODESTO-
SAN PEDRO, Judge of the Metropolitan
Trial Court, Branch 71, Pasig City, and Promulgated:
EVANGELINE PONCE,
Respondents. November 17, 2010
DECISION
CARPIO, J.:
The Case

The petition seeks the review55[1] of the Orders56[2] of the Regional Trial Court of Pasig
City affirming sub-silencio a lower courts ruling finding inapplicable the Double Jeopardy Clause
to bar a second prosecution for Reckless Imprudence Resulting in Homicide and Damage to
Property. This, despite the accuseds previous conviction for Reckless Imprudence Resulting in
Slight Physical Injuries arising from the same incident grounding the second prosecution.

The Facts

Following a vehicular collision in August 2004, petitioner Jason Ivler (petitioner) was
charged before the Metropolitan Trial Court of Pasig City, Branch 71 (MeTC), with two separate
offenses: (1) Reckless Imprudence Resulting in Slight Physical Injuries (Criminal Case No.
82367) for injuries sustained by respondent Evangeline L. Ponce (respondent Ponce); and (2)
Reckless Imprudence Resulting in Homicide and Damage to Property (Criminal Case No. 82366)
for the death of respondent Ponces husband Nestor C. Ponce and damage to the spouses Ponces
vehicle. Petitioner posted bail for his temporary release in both cases.
 122

On 7 September 2004, petitioner pleaded guilty to the charge in Criminal Case No. 82367
and was meted out the penalty of public censure. Invoking this conviction, petitioner moved to
quash the Information in Criminal Case No. 82366 for placing him in jeopardy of second
punishment for the same offense of reckless imprudence.

The MeTC refused quashal, finding no identity of offenses in the two cases.57[3]

After unsuccessfully seeking reconsideration, petitioner elevated the matter to the Regional
Trial Court of Pasig City, Branch 157 (RTC), in a petition for certiorari (S.C.A. No. 2803).
Meanwhile, petitioner sought from the MeTC the suspension of proceedings in Criminal Case
No. 82366, including the arraignment on 17 May 2005, invoking S.C.A. No. 2803 as a prejudicial
question. Without acting on petitioners motion, the MeTC proceeded with the arraignment and,
because of petitioners absence, cancelled his bail and ordered his arrest.58[4] Seven days later,
the MeTC issued a resolution denying petitioners motion to suspend proceedings and postponing
his arraignment until after his arrest.59[5] Petitioner sought reconsideration but as of the filing of
this petition, the motion remained unresolved.

Relying on the arrest order against petitioner, respondent Ponce sought in the RTC the
dismissal of S.C.A. No. 2803 for petitioners loss of standing to maintain the suit. Petitioner
contested the motion.

The Ruling of the Trial Court

In an Order dated 2 February 2006, the RTC dismissed S.C.A. No. 2803, narrowly
grounding its ruling on petitioners forfeiture of standing to maintain S.C.A. No. 2803 arising from
the MeTCs order to arrest petitioner for his non-appearance at the arraignment in Criminal Case
 123

No. 82366. Thus, without reaching the merits of S.C.A. No. 2803, the RTC effectively affirmed
the MeTC. Petitioner sought reconsideration but this proved unavailing.60[6]

Hence, this petition.

Petitioner denies absconding. He explains that his petition in S.C.A. No. 2803 constrained
him to forego participation in the proceedings in Criminal Case No. 82366. Petitioner
distinguishes his case from the line of jurisprudence sanctioning dismissal of appeals for
absconding appellants because his appeal before the RTC was a special civil action seeking a pre-
trial relief, not a post-trial appeal of a judgment of conviction.61[7]

Petitioner laments the RTCs failure to reach the merits of his petition in S.C.A. 2803.
Invoking jurisprudence, petitioner argues that his constitutional right not to be placed twice in
jeopardy of punishment for the same offense bars his prosecution in Criminal Case No. 82366,
having been previously convicted in Criminal Case No. 82367 for the same offense of reckless
imprudence charged in Criminal Case No. 82366. Petitioner submits that the multiple
consequences of such crime are material only to determine his penalty.

Respondent Ponce finds no reason for the Court to disturb the RTCs decision forfeiting
petitioners standing to maintain his petition in S.C.A. 2803. On the merits, respondent Ponce calls
the Courts attention to jurisprudence holding that light offenses (e.g. slight physical injuries)
cannot be complexed under Article 48 of the Revised Penal Code with grave or less grave felonies
(e.g. homicide). Hence, the prosecution was obliged to separate the charge in Criminal Case No.
82366 for the slight physical injuries from Criminal Case No. 82367 for the homicide and damage
to property.
 124

In the Resolution of 6 June 2007, we granted the Office of the Solicitor Generals motion
not to file a comment to the petition as the public respondent judge is merely a nominal party and
private respondent is represented by counsel.

The Issues

Two questions are presented for resolution: (1) whether petitioner forfeited his standing to
seek relief in S.C.A. 2803 when the MeTC ordered his arrest following his non-appearance at the
arraignment in Criminal Case No. 82366; and (2) if in the negative, whether petitioners
constitutional right under the Double Jeopardy Clause bars further proceedings in Criminal Case
No. 82366.

The Ruling of the Court

We hold that (1) petitioners non-appearance at the arraignment in Criminal Case No. 82366
did not divest him of personality to maintain the petition in S.C.A. 2803; and (2) the protection
afforded by the Constitution shielding petitioner from prosecutions placing him in jeopardy of
second punishment for the same offense bars further proceedings in Criminal Case No. 82366.

Petitioners Non-appearance at the Arraignment in

Criminal Case No. 82366 did not Divest him of Standing

to Maintain the Petition in S.C.A. 2803

Dismissals of appeals grounded on the appellants escape from custody or violation of the
terms of his bail bond are governed by the second paragraph of Section 8, Rule 124,62[8] in
relation to Section 1, Rule 125, of the Revised Rules on Criminal Procedure authorizing this Court
or the Court of Appeals to also, upon motion of the appellee or motu proprio, dismiss the appeal
if the appellant escapes from prison or confinement, jumps bail or flees to a foreign country during
 125

the pendency of the appeal. The appeal contemplated in Section 8 of Rule 124 is a suit to review
judgments of convictions.

The RTCs dismissal of petitioners special civil action for certiorari to review a pre-
arraignment ancillary question on the applicability of the Due Process Clause to bar proceedings
in Criminal Case No. 82366 finds no basis under procedural rules and jurisprudence. The RTCs
reliance on People v. Esparas63[9] undercuts the cogency of its ruling because Esparas stands
for a proposition contrary to the RTCs ruling. There, the Court granted review to an appeal by an
accused who was sentenced to death for importing prohibited drugs even though she jumped bail
pending trial and was thus tried and convicted in absentia. The Court in Esparas treated the
mandatory review of death sentences under Republic Act No. 7659 as an exception to Section 8
of Rule 124.64[10]

The mischief in the RTCs treatment of petitioners non-appearance at his arraignment in

Criminal Case No. 82366 as proof of his loss of standing becomes more evident when one
considers the Rules of Courts treatment of a defendant who absents himself from post-
arraignment hearings. Under Section 21, Rule 11465[11] of the Revised Rules of Criminal
Procedure, the defendants absence merely renders his bondsman potentially liable on its bond
(subject to cancellation should the bondsman fail to produce the accused within 30 days); the
defendant retains his standing and, should he fail to surrender, will be tried in absentia and could
be convicted or acquitted. Indeed, the 30-day period granted to the bondsman to produce the
accused underscores the fact that mere non-appearance does not ipso facto convert the accuseds
status to that of a fugitive without standing.

Further, the RTCs observation that petitioner provided no explanation why he failed to
attend the scheduled proceeding66[12] at the MeTC is belied by the records. Days before the
 126

arraignment, petitioner sought the suspension of the MeTCs proceedings in Criminal Case No.
82366 in light of his petition with the RTC in S.C.A. No. 2803. Following the MeTCs refusal to
defer arraignment (the order for which was released days after the MeTC ordered petitioners
arrest), petitioner sought reconsideration. His motion remained unresolved as of the filing of this

petition.

Petitioners Conviction in Criminal Case No. 82367

Bars his Prosecution in Criminal Case No. 82366

The accuseds negative constitutional right not to be twice put in jeopardy of punishment
for the same offense67[13] protects him from, among others, post-conviction prosecution for the
same offense, with the prior verdict rendered by a court of competent jurisdiction upon a valid
information.68[14] It is not disputed that petitioners conviction in Criminal Case No. 82367 was
rendered by a court of competent jurisdiction upon a valid charge. Thus, the case turns on the
question whether Criminal Case No. 82366 and Criminal Case No. 82367 involve the same
offense. Petitioner adopts the affirmative view, submitting that the two cases concern the same
offense of reckless imprudence. The MeTC ruled otherwise, finding that Reckless Imprudence
Resulting in Slight Physical Injuries is an entirely separate offense from Reckless Imprudence
Resulting in Homicide and Damage to Property as the [latter] requires proof of an additional fact
which the other does not.69[15]

We find for petitioner.

Reckless Imprudence is a Single Crime,

its Consequences on Persons and

Property are Material Only to Determine

 127

the Penalty

The two charges against petitioner, arising from the same facts, were prosecuted under the
same provision of the Revised Penal Code, as amended, namely, Article 365 defining and
penalizing quasi-offenses. The text of the provision reads:

Imprudence and negligence. Any person who, by reckless imprudence, shall commit any
act which, had it been intentional, would constitute a grave felony, shall suffer the penalty of
arresto mayor in its maximum period to prision correccional in its medium period; if it would have
constituted a less grave felony, the penalty of arresto mayor in its minimum and medium periods
shall be imposed; if it would have constituted a light felony, the penalty of arresto menor in its
maximum period shall be imposed.

Any person who, by simple imprudence or negligence, shall commit an act which would
otherwise constitute a grave felony, shall suffer the penalty of arresto mayor in its medium and
maximum periods; if it would have constituted a less serious felony, the penalty of arresto mayor
in its minimum period shall be imposed.

When the execution of the act covered by this article shall have only resulted in damage to
the property of another, the offender shall be punished by a fine ranging from an amount equal to
the value of said damages to three times such value, but which shall in no case be less than twenty-
five pesos.

A fine not exceeding two hundred pesos and censure shall be imposed upon any person
who, by simple imprudence or negligence, shall cause some wrong which, if done maliciously,
would have constituted a light felony.

In the imposition of these penalties, the court shall exercise their sound discretion, without
regard to the rules prescribed in Article sixty-four.

The provisions contained in this article shall not be applicable:

1. When the penalty provided for the offense is equal to or lower than those provided in
the first two paragraphs of this article, in which case the court shall impose the penalty next lower
in degree than that which should be imposed in the period which they may deem proper to apply.

2. When, by imprudence or negligence and with violation of the Automobile Law, to death
of a person shall be caused, in which case the defendant shall be punished by prision correccional
in its medium and maximum periods.

Reckless imprudence consists in voluntary, but without malice, doing or failing to do an

act from which material damage results by reason of inexcusable lack of precaution on the part of
the person performing or failing to perform such act, taking into consideration his employment or
occupation, degree of intelligence, physical condition and other circumstances regarding persons,
time and place.

Simple imprudence consists in the lack of precaution displayed in those cases in which the
damage impending to be caused is not immediate nor the danger clearly manifest.
 128

The penalty next higher in degree to those provided for in this article shall be imposed upon
the offender who fails to lend on the spot to the injured parties such help as may be in this hand to
give.

Structurally, these nine paragraphs are collapsible into four sub-groupings relating to (1)
the penalties attached to the quasi-offenses of imprudence and negligence (paragraphs 1-2); (2) a
modified penalty scheme for either or both quasi-offenses (paragraphs 3-4, 6 and 9); (3) a generic
rule for trial courts in imposing penalties (paragraph 5); and (4) the definition of reckless
imprudence and simple imprudence (paragraphs 7-8). Conceptually, quasi-offenses penalize the
mental attitude or condition behind the act, the dangerous recklessness, lack of care or foresight,
the imprudencia punible,70[16] unlike willful offenses which punish the intentional criminal act.
These structural and conceptual features of quasi-offenses set them apart from the mass of
intentional crimes under the first 13 Titles of Book II of the Revised Penal Code, as amended.

Indeed, the notion that quasi-offenses, whether reckless or simple, are distinct species of
crime, separately defined and penalized under the framework of our penal laws, is nothing new.
As early as the middle of the last century, we already sought to bring clarity to this field by
rejecting in Quizon v. Justice of the Peace of Pampanga the proposition that reckless imprudence
is not a crime in itself but simply a way of committing it x x x71[17] on three points of analysis:
(1) the object of punishment in quasi-crimes (as opposed to intentional crimes); (2) the legislative
intent to treat quasi-crimes as distinct offenses (as opposed to subsuming them under the
mitigating circumstance of minimal intent) and; (3) the different penalty structures for quasi-
crimes and intentional crimes:

The proposition (inferred from Art. 3 of the Revised Penal Code) that reckless imprudence
is not a crime in itself but simply a way of committing it and merely determines a lower degree of
criminal liability is too broad to deserve unqualified assent. There are crimes that by their structure
cannot be committed through imprudence: murder, treason, robbery, malicious mischief, etc. In
truth, criminal negligence in our Revised Penal Code is treated as a mere quasi offense, and dealt
with separately from willful offenses. It is not a mere question of classification or terminology. In
intentional crimes, the act itself is punished; in negligence or imprudence, what is principally
penalized is the mental attitude or condition behind the act, the dangerous recklessness, lack of
care or foresight, the imprudencia punible. x x x x
 129

Were criminal negligence but a modality in the commission of felonies, operating only to
reduce the penalty therefor, then it would be absorbed in the mitigating circumstances of Art. 13,
specially the lack of intent to commit so grave a wrong as the one actually committed. Furthermore,
the theory would require that the corresponding penalty should be fixed in proportion to the penalty
prescribed for each crime when committed willfully. For each penalty for the willful offense, there
would then be a corresponding penalty for the negligent variety. But instead, our Revised Penal
Code (Art. 365) fixes the penalty for reckless imprudence at arresto mayor maximum, to prision
correccional [medium], if the willful act would constitute a grave felony, notwithstanding that the
penalty for the latter could range all the way from prision mayor to death, according to the case. It
can be seen that the actual penalty for criminal negligence bears no relation to the individual
willful crime, but is set in relation to a whole class, or series, of crimes.72[18] (Emphasis supplied)

This explains why the technically correct way to allege quasi-crimes is to state that their
commission results in damage, either to person or property.73[19]

Accordingly, we found the Justice of the Peace in Quizon without jurisdiction to hear a
case for Damage to Property through Reckless Imprudence, its jurisdiction being limited to trying
charges for Malicious Mischief, an intentional crime conceptually incompatible with the element
of imprudence obtaining in quasi-crimes.

Quizon, rooted in Spanish law74[20] (the normative ancestry of our present day penal
code) and since repeatedly reiterated,75[21] stands on solid conceptual foundation. The contrary
doctrinal pronouncement in People v. Faller76[22] that [r]eckless impudence is not a crime in
itself x x x [but] simply a way of committing it x x x,77[23] has long been abandoned when the
Court en banc promulgated Quizon in 1955 nearly two decades after the Court decided Faller in
1939. Quizon rejected Fallers conceptualization of quasi-crimes by holding that quasi-crimes
 130

under Article 365 are distinct species of crimes and not merely methods of committing crimes.
Faller found expression in post-Quizon jurisprudence78[24] only by dint of lingering doctrinal
confusion arising from an indiscriminate fusion of criminal law rules defining Article 365 crimes
and the complexing of intentional crimes under Article 48 of the Revised Penal Code which, as
will be shown shortly, rests on erroneous conception of quasi-crimes. Indeed, the Quizonian
conception of quasi-crimes undergirded a related branch of jurisprudence applying the Double
Jeopardy Clause to quasi-offenses, barring second prosecutions for a quasi-offense alleging one
resulting act after a prior conviction or acquittal of a quasi-offense alleging another resulting act
but arising from the same reckless act or omission upon which the second prosecution was based.

Prior Conviction or Acquittal of

Reckless Imprudence Bars

Subsequent Prosecution for the Same

Quasi-Offense

The doctrine that reckless imprudence under Article 365 is a single quasi-offense by itself
and not merely a means to commit other crimes such that conviction or acquittal of such quasi-
offense bars subsequent prosecution for the same quasi-offense, regardless of its various resulting
acts, undergirded this Courts unbroken chain of jurisprudence on double jeopardy as applied to
Article 365 starting with People v. Diaz,79[25] decided in 1954. There, a full Court, speaking
through Mr. Justice Montemayor, ordered the dismissal of a case for damage to property thru
reckless imprudence because a prior case against the same accused for reckless driving, arising
from the same act upon which the first prosecution was based, had been dismissed earlier. Since
then, whenever the same legal question was brought before the Court, that is, whether prior
conviction or acquittal of reckless imprudence bars subsequent prosecution for the same quasi-
offense, regardless of the consequences alleged for both charges, the Court unfailingly and
 131

consistently answered in the affirmative in People v. Belga80[26] (promulgated in 1957 by the

Court en banc, per Reyes, J.), Yap v. Lutero81[27] (promulgated in 1959, unreported, per
Concepcion, J.), People v. Narvas82[28] (promulgated in 1960 by the Court en banc, per
Bengzon J.), People v. Silva83[29] (promulgated in 1962 by the Court en banc, per Paredes, J.),
People v. Macabuhay84[30] (promulgated in 1966 by the Court en banc, per Makalintal, J.),
People v. Buan85[31] (promulgated in 1968 by the Court en banc, per Reyes, J.B.L., acting C.
J.), Buerano v. Court of Appeals86[32] (promulgated in 1982 by the Court en banc, per Relova,
J.), and People v. City Court of Manila87[33] (promulgated in 1983 by the First Division, per
Relova, J.). These cases uniformly barred the second prosecutions as constitutionally
impermissible under the Double Jeopardy Clause.

The reason for this consistent stance of extending the constitutional protection under the
Double Jeopardy Clause to quasi-offenses was best articulated by Mr. Justice J.B.L. Reyes in
Buan, where, in barring a subsequent prosecution for serious physical injuries and damage to
property thru reckless imprudence because of the accuseds prior acquittal of slight physical
injuries thru reckless imprudence, with both charges grounded on the same act, the Court
explained:88[34]

Reason and precedent both coincide in that once convicted or acquitted of a specific act of
reckless imprudence, the accused may not be prosecuted again for that same act. For the essence
of the quasi offense of criminal negligence under article 365 of the Revised Penal Code lies in the
execution of an imprudent or negligent act that, if intentionally done, would be punishable as a
felony. The law penalizes thus the negligent or careless act, not the result thereof. The gravity of
the consequence is only taken into account to determine the penalty, it does not qualify the
 132

substance of the offense. And, as the careless act is single, whether the injurious result should
affect one person or several persons, the offense (criminal negligence) remains one and the same,
and can not be split into different crimes and prosecutions.89[35] x x x (Emphasis supplied)

Evidently, the Diaz line of jurisprudence on double jeopardy merely extended to its logical
conclusion the reasoning of Quizon.

There is in our jurisprudence only one ruling going against this unbroken line of
authority. Preceding Diaz by more than a decade, El Pueblo de Filipinas v. Estipona,90[36]
decided by the pre-war colonial Court in November 1940, allowed the subsequent prosecution of
an accused for reckless imprudence resulting in damage to property despite his previous
conviction for multiple physical injuries arising from the same reckless operation of a motor
vehicle upon which the second prosecution was based. Estiponas inconsistency with the post-war
Diaz chain of jurisprudence suffices to impliedly overrule it. At any rate, all doubts on this matter
were laid to rest in 1982 in Buerano.91[37] There, we reviewed the Court of Appeals conviction
of an accused for damage to property for reckless imprudence despite his prior conviction for
slight and less serious physical injuries thru reckless imprudence, arising from the same act upon
which the second charge was based. The Court of Appeals had relied on Estipona. We reversed
on the strength of Buan:92[38]

Th[e] view of the Court of Appeals was inspired by the ruling of this Court in the pre-war
case of People vs. Estipona decided on November 14, 1940. However, in the case of People vs.
Buan, 22 SCRA 1383 (March 29, 1968), this Court, speaking thru Justice J. B. L. Reyes, held
that

Reason and precedent both coincide in that once convicted or acquitted of

a specific act of reckless imprudence, the accused may not be prosecuted again for
that same act. For the essence of the quasi offense of criminal negligence under
 133

Article 365 of the Revised Penal Code lies in the execution of an imprudent or
negligent act that, if intentionally done, would be punishable as a felony. The law
penalizes thus the negligent or careless act, not the result thereof. The gravity of the
consequence is only taken into account to determine the penalty, it does not qualify
the substance of the offense. And, as the careless act is single, whether the injurious
result should affect one person or several persons, the offense (criminal negligence)
remains one and the same, and can not be split into different crimes and
prosecutions.

xxxx

. . . the exoneration of this appellant, Jose Buan, by the Justice of the Peace
(now Municipal) Court of Guiguinto, Bulacan, of the charge of slight physical
injuries through reckless imprudence, prevents his being prosecuted for serious
physical injuries through reckless imprudence in the Court of First Instance
of the province, where both charges are derived from the consequences of one
and the same vehicular accident, because the second accusation places the
appellant in second jeopardy for the same offense.93[39] (Emphasis supplied)

Thus, for all intents and purposes, Buerano had effectively overruled Estipona.

It is noteworthy that the Solicitor General in Buerano, in a reversal of his earlier stance in
Silva, joined causes with the accused, a fact which did not escape the Courts attention:

Then Solicitor General, now Justice Felix V. Makasiar, in his MANIFESTATION dated
December 12, 1969 (page 82 of the Rollo) admits that the Court of Appeals erred in not sustaining
petitioners plea of double jeopardy and submits that its affirmatory decision dated January 28,
1969, in Criminal Case No. 05123-CR finding petitioner guilty of damage to property through
reckless imprudence should be set aside, without costs. He stressed that if double jeopardy exists
where the reckless act resulted into homicide and physical injuries. then the same consequence
must perforce follow where the same reckless act caused merely damage to property-not death-
and physical injuries. Verily, the value of a human life lost as a result of a vehicular collision
cannot be equated with any amount of damages caused to a motors vehicle arising from the same
mishap.94[40] (Emphasis supplied)

Hence, we find merit in petitioners submission that the lower courts erred in refusing to
extend in his favor the mantle of protection afforded by the Double Jeopardy Clause. A more
fitting jurisprudence could not be tailored to petitioners case than People v. Silva, 95[41] a Diaz
progeny. There, the accused, who was also involved in a vehicular collision, was charged in two
 134

separate Informations with Slight Physical Injuries thru Reckless Imprudence and Homicide with
Serious Physical Injuries thru Reckless Imprudence. Following his acquittal of the former, the
accused sought the quashal of the latter, invoking the Double Jeopardy Clause. The trial court
initially denied relief, but, on reconsideration, found merit in the accuseds claim and dismissed
the second case. In affirming the trial court, we quoted with approval its analysis of the issue
following Diaz and its progeny People v. Belga:96[42]

On June 26, 1959, the lower court reconsidered its Order of May 2, 1959 and dismissed
the case, holding:

[T]he Court believes that the case falls squarely within the doctrine of double
jeopardy enunciated in People v. Belga, x x x In the case cited, Ciriaco Belga and
Jose Belga were charged in the Justice of the Peace Court of Malilipot, Albay, with
the crime of physical injuries through reckless imprudence arising from a collision
between the two automobiles driven by them (Crim. Case No. 88). Without the
aforesaid complaint having been dismissed or otherwise disposed of, two other
criminal complaints were filed in the same justice of the peace court, in connection
with the same collision one for damage to property through reckless imprudence
(Crim. Case No. 95) signed by the owner of one of the vehicles involved in the
collision, and another for multiple physical injuries through reckless imprudence
(Crim. Case No. 96) signed by the passengers injured in the accident. Both of these
two complaints were filed against Jose Belga only. After trial, both defendants were
acquitted of the charge against them in Crim. Case No. 88. Following his acquittal,
Jose Belga moved to quash the complaint for multiple physical injuries through
reckless imprudence filed against him by the injured passengers, contending that
the case was just a duplication of the one filed by the Chief of Police wherein he
had just been acquitted. The motion to quash was denied and after trial Jose Belga
was convicted, whereupon he appealed to the Court of First Instance of Albay. In
the meantime, the case for damage to property through reckless imprudence filed
by one of the owners of the vehicles involved in the collision had been remanded
to the Court of First Instance of Albay after Jose Belga had waived the second stage
of the preliminary investigation. After such remand, the Provincial Fiscal filed in
the Court of First Instance two informations against Jose Belga, one for physical
injuries through reckless imprudence, and another for damage to property through
reckless imprudence. Both cases were dismissed by the Court of First Instance,
upon motion of the defendant Jose Belga who alleged double jeopardy in a motion
to quash. On appeal by the Prov. Fiscal, the order of dismissal was affirmed by the
Supreme Court in the following language: .

The question for determination is whether the acquittal of Jose Belga

in the case filed by the chief of police constitutes a bar to his
subsequent prosecution for multiple physical injuries and damage to
property through reckless imprudence.
 135

In the case of Peo[ple] v. F. Diaz, G. R. No. L-6518, prom. March 30, 1954,
the accused was charged in the municipal court of Pasay City with reckless driving
under sec. 52 of the Revised Motor Vehicle Law, for having driven an automobile
in a ῾fast and reckless manner ... thereby causing an accident. After the accused had
pleaded not guilty the case was dismissed in that court ῾for failure of the
Government to prosecute. But some time thereafter the city attorney filed an
information in the Court of First Instance of Rizal, charging the same accused with
damage to property thru reckless imprudence. The amount of the damage was
alleged to be P249.50. Pleading double jeopardy, the accused filed a motion, and
on appeal by the Government we affirmed the ruling. Among other things we there
said through Mr. Justice Montemayor

The next question to determine is the relation between the

first offense of violation of the Motor Vehicle Law prosecuted
before the Pasay City Municipal Court and the offense of damage to
property thru reckless imprudence charged in the Rizal Court of
First Instance. One of the tests of double jeopardy is whether or not
the second offense charged necessarily includes or is necessarily
included in the offense charged in the former complaint or
information (Rule 113, Sec. 9). Another test is whether the evidence
which proves one would prove the other that is to say whether the
facts alleged in the first charge if proven, would have been sufficient
to support the second charge and vice versa; or whether one crime
is an ingredient of the other. x x x
xxxx

The foregoing language of the Supreme Court also disposes of the

contention of the prosecuting attorney that the charge for slight physical injuries
through reckless imprudence could not have been joined with the charge for
homicide with serious physical injuries through reckless imprudence in this case,
in view of the provisions of Art. 48 of the Revised Penal Code, as amended. The
prosecutions contention might be true. But neither was the prosecution obliged to
first prosecute the accused for slight physical injuries through reckless imprudence
before pressing the more serious charge of homicide with serious physical injuries
through reckless imprudence. Having first prosecuted the defendant for the lesser
offense in the Justice of the Peace Court of Meycauayan, Bulacan, which acquitted
the defendant, the prosecuting attorney is not now in a position to press in this case
the more serious charge of homicide with serious physical injuries through reckless
imprudence which arose out of the same alleged reckless imprudence of which the
defendant have been previously cleared by the inferior court.97[43]

Significantly, the Solicitor General had urged us in Silva to reexamine Belga (and hence,
Diaz) for the purpose of delimiting or clarifying its application.98[44] We declined the invitation,
thus:
 136

The State in its appeal claims that the lower court erred in dismissing the case, on the
ground of double jeopardy, upon the basis of the acquittal of the accused in the JP court for Slight
Physical Injuries, thru Reckless Imprudence. In the same breath said State, thru the Solicitor
General, admits that the facts of the case at bar, fall squarely on the ruling of the Belga case x x x,
upon which the order of dismissal of the lower court was anchored. The Solicitor General,
however, urges a re-examination of said ruling, upon certain considerations for the purpose of
delimiting or clarifying its application. We find, nevertheless, that further elucidation or
disquisition on the ruling in the Belga case, the facts of which are analogous or similar to those
in the present case, will yield no practical advantage to the government. On one hand, there is
nothing which would warrant a delimitation or clarification of the applicability of the Belga case.
It was clear. On the other, this Court has reiterated the views expressed in the Belga case, in the
identical case of Yap v. Hon. Lutero, etc., L-12669, April 30, 1959.99[45] (Emphasis supplied)

Article 48 Does not Apply to Acts Penalized

Under Article 365 of the Revised Penal Code

The confusion bedeviling the question posed in this petition, to which the MeTC
succumbed, stems from persistent but awkward attempts to harmonize conceptually incompatible
substantive and procedural rules in criminal law, namely, Article 365 defining and penalizing
quasi-offenses and Article 48 on complexing of crimes, both under the Revised Penal Code.
Article 48 is a procedural device allowing single prosecution of multiple felonies falling under
either of two categories: (1) when a single act constitutes two or more grave or less grave felonies
(thus excluding from its operation light felonies100[46]); and (2) when an offense is a necessary
means for committing the other. The legislature crafted this procedural tool to benefit the accused
who, in lieu of serving multiple penalties, will only serve the maximum of the penalty for the
most serious crime.

In contrast, Article 365 is a substantive rule penalizing not an act defined as a felony but
the mental attitude x x x behind the act, the dangerous recklessness, lack of care or foresight x x
x,101[47] a single mental attitude regardless of the resulting consequences. Thus, Article 365 was
crafted as one quasi-crime resulting in one or more consequences.
 137

Ordinarily, these two provisions will operate smoothly. Article 48 works to combine in a
single prosecution multiple intentional crimes falling under Titles 1-13, Book II of the Revised
Penal Code, when proper; Article 365 governs the prosecution of imprudent acts and their
consequences. However, the complexities of human interaction can produce a hybrid quasi-
offense not falling under either models that of a single criminal negligence resulting in multiple
non-crime damages to persons and property with varying penalties corresponding to light, less
grave or grave offenses. The ensuing prosecutorial dilemma is obvious: how should such a quasi-
crime be prosecuted? Should Article 48s framework apply to complex the single quasi-offense
with its multiple (non-criminal) consequences (excluding those amounting to light offenses which
will be tried separately)? Or should the prosecution proceed under a single charge, collectively
alleging all the consequences of the single quasi-crime, to be penalized separately following the
scheme of penalties under Article 365?

Jurisprudence adopts both approaches. Thus, one line of rulings (none of which involved
the issue of double jeopardy) applied Article 48 by complexing one quasi-crime with its multiple
consequences102[48] unless one consequence amounts to a light felony, in which case charges
were split by grouping, on the one hand, resulting acts amounting to grave or less grave felonies
and filing the charge with the second level courts and, on the other hand, resulting acts amounting
to light felonies and filing the charge with the first level courts.103[49] Expectedly, this is the
approach the MeTC impliedly sanctioned (and respondent Ponce invokes), even though under
Republic Act No. 7691,104[50] the MeTC has now exclusive original jurisdiction to impose the
most serious penalty under Article 365 which is prision correccional in its medium period.

Under this approach, the issue of double jeopardy will not arise if the complexing of acts
penalized under Article 365 involves only resulting acts penalized as grave or less grave felonies
because there will be a single prosecution of all the resulting acts. The issue of double jeopardy
arises if one of the resulting acts is penalized as a light offense and the other acts are penalized as
 138

grave or less grave offenses, in which case Article 48 is not deemed to apply and the act penalized
as a light offense is tried separately from the resulting acts penalized as grave or less grave
offenses.

The second jurisprudential path nixes Article 48 and sanctions a single prosecution of all
the effects of the quasi-crime collectively alleged in one charge, regardless of their number or
severity,105[51] penalizing each consequence separately. Thus, in Angeles v. Jose,106[52] we
interpreted paragraph three of Article 365, in relation to a charge alleging reckless imprudence
resulting in damage to property and less serious physical injuries, as follows:

[T]he third paragraph of said article, x x x reads as follows:

When the execution of the act covered by this article shall have only resulted
in damage to the property of another, the offender shall be punished by a fine
ranging from an amount equal to the value of said damage to three times such value,
but which shall in no case be less than 25 pesos.

The above-quoted provision simply means that if there is only damage to property the
amount fixed therein shall be imposed, but if there are also physical injuries there should be an
additional penalty for the latter. The information cannot be split into two; one for the physical
injuries, and another for the damage to property, x x x.107[53] (Emphasis supplied)

By additional penalty, the Court meant, logically, the penalty scheme under Article 365.

Evidently, these approaches, while parallel, are irreconcilable. Coherence in this field
demands choosing one framework over the other. Either (1) we allow the complexing of a single
quasi-crime by breaking its resulting acts into separate offenses (except for light felonies), thus
re-conceptualize a quasi-crime, abandon its present framing under Article 365, discard its
conception under the Quizon and Diaz lines of cases, and treat the multiple consequences of a
quasi-crime as separate intentional felonies defined under Titles 1-13, Book II under the penal
code; or (2) we forbid the application of Article 48 in the prosecution and sentencing of quasi-
 139

crimes, require single prosecution of all the resulting acts regardless of their number and severity,
separately penalize each as provided in Article 365, and thus maintain the distinct concept of
quasi-crimes as crafted under Article 365, articulated in Quizon and applied to double jeopardy
adjudication in the Diaz line of cases.

A becoming regard of this Courts place in our scheme of government denying it the power
to make laws constrains us to keep inviolate the conceptual distinction between quasi-crimes and
intentional felonies under our penal code. Article 48 is incongruent to the notion of quasi-crimes
under Article 365. It is conceptually impossible for a quasi-offense to stand for (1) a single act
constituting two or more grave or less grave felonies; or (2) an offense which is a necessary means
for committing another. This is why, way back in 1968 in Buan, we rejected the Solicitor
Generals argument that double jeopardy does not bar a second prosecution for slight physical
injuries through reckless imprudence allegedly because the charge for that offense could not be
joined with the other charge for serious physical injuries through reckless imprudence following
Article 48 of the Revised Penal Code:

The Solicitor General stresses in his brief that the charge for slight physical injuries through
reckless imprudence could not be joined with the accusation for serious physical injuries through
reckless imprudence, because Article 48 of the Revised Penal Code allows only the complexing
of grave or less grave felonies. This same argument was considered and rejected by this Court
in the case of People vs. [Silva] x x x:

[T]he prosecutions contention might be true. But neither was the

prosecution obliged to first prosecute the accused for slight physical injuries
through reckless imprudence before pressing the more serious charge of homicide
with serious physical injuries through reckless imprudence. Having first prosecuted
the defendant for the lesser offense in the Justice of the Peace Court of
Meycauayan, Bulacan, which acquitted the defendant, the prosecuting attorney is
not now in a position to press in this case the more serious charge of homicide with
serious physical injuries through reckless imprudence which arose out of the same
alleged reckless imprudence of which the defendant has been previously cleared by
the inferior court.

[W]e must perforce rule that the exoneration of this appellant x x x by the Justice of the Peace x x
x of the charge of slight physical injuries through reckless imprudence, prevents his being
prosecuted for serious physical injuries through reckless imprudence in the Court of First Instance
of the province, where both charges are derived from the consequences of one and the same
 140

vehicular accident, because the second accusation places the appellant in second jeopardy for the
same offense.108[54] (Emphasis supplied)

Indeed, this is a constitutionally compelled choice. By prohibiting the splitting of charges under
Article 365, irrespective of the number and severity of the resulting acts, rampant occasions of
constitutionally impermissible second prosecutions are avoided, not to mention that scarce state
resources are conserved and diverted to proper use.

Hence, we hold that prosecutions under Article 365 should proceed from a single charge
regardless of the number or severity of the consequences. In imposing penalties, the judge will
do no more than apply the penalties under Article 365 for each consequence alleged and proven.
In short, there shall be no splitting of charges under Article 365, and only one information shall
be filed in the same first level court.109[55]

Our ruling today secures for the accused facing an Article 365 charge a stronger and
simpler protection of their constitutional right under the Double Jeopardy Clause. True, they are
thereby denied the beneficent effect of the favorable sentencing formula under Article 48, but any
disadvantage thus caused is more than compensated by the certainty of non-prosecution for quasi-
crime effects qualifying as light offenses (or, as here, for the more serious consequence
prosecuted belatedly). If it is so minded, Congress can re-craft Article 365 by extending to quasi-
crimes the sentencing formula of Article 48 so that only the most severe penalty shall be imposed
under a single prosecution of all resulting acts, whether penalized as grave, less grave or light
offenses. This will still keep intact the distinct concept of quasi-offenses. Meanwhile, the lenient
schedule of penalties under Article 365, befitting crimes occupying a lower rung of culpability,
should cushion the effect of this ruling.

WHEREFORE, we GRANT the petition. We REVERSE the Orders dated 2 February

2006 and 2 May 2006 of the Regional Trial Court of Pasig City, Branch 157. We DISMISS the
 141

Information in Criminal Case No. 82366 against petitioner Jason Ivler y Aguilar pending with the
Metropolitan Trial Court of Pasig City, Branch 71 on the ground of double jeopardy.

Let a copy of this ruling be served on the President of the Senate and the Speaker of the
House of Representatives.

SO ORDERED.
 142

G.R. No. 178145 July 7, 2014

REYNALDO S. MARIANO, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

RESOLUTION

BERSAMIN, J.:

The courts of law are hereby reminded once again to exercise care in the determination of the proper
penalty imposable upon the offenders whom they find and declare to be guilty of the offenses
charged or proved. Their correct determination is the essence of due process of law. The Office of the
Provincial Prosecutor of Bulacan charged the petitioner with frustrated murder for hitting and bumping
Ferdinand de Leon while overtaking the latter's jeep in the information filed in the Regional Trial
Court, Branch 81, in Malolos, Bulacan (RTC), viz:

That on or about the 12th day of September, 1999, in the municipality of Angat, Province of Bulacan,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused did then
and there wilfully, unlawfully and feloniously, with the use of the motor vehicle he was then driving,
with evident premeditation, treachery and abuse of superior strength, hit, bump and run over with the
said motor vehicle one Ferdinand de Leon, thereby inflicting upon him serious physical injuries which
ordinarily would have causedthe death of the said Ferdinand de Leon, thus performing all the acts of
execution which should have produced the crime of murder asa consequence, but nevertheless did
not produce it by reason of causes independent of his will, that is, by the timely and able medical
assistance rendered to said Ferdinand de Leon. Contrary to law.1

The CA summarized the antecedent events as follows:

At about 6:30 in the evening of September 12, 1999, Ferdinand de Leon was driving his owner type
jeep along Barangay Engkanto, Angat, Bulacan. With him were his wife, Urbanita, and their two-year
old son, as they just came from a baptismal party. Luis de Leon, an uncle of Ferdinand, also came
from the baptismal party and was driving his owner type jeep. Accused-appellant Reynaldo Mariano
was driving his red Toyota pick-up with his wife, Rebecca, and their helper, Rowena Años, as
passengers. They had just attendeda worship service in Barangay Engkanto.

The Toyota pick-up overtook the jeep of Ferdinand de Leon and almost bumped it. Ferdinand got
mad, overtook the pick-up and blocked its path. Reynaldo Mariano stopped the pick-up behind the
jeep. Ferdinand alighted from his jeep and approached Reynaldo. Ferdinand claimed that he and
Reynaldo had an altercation. However, Reynaldo insisted that he just stayed inside the pick-up and
kept quiet while Ferdinand hurled invectives at him. Urbanita tried to pacify Ferdinand and sought the
assistance of Luis de Leon. Luis intervened and told Ferdinand and Reynaldo "magpasensiyahan na
lamang kayo at pagpasensiyahan mo si Ferdinand." Ferdinand and Reynaldo heeded the advice of
Luis and they went their separate ways.

Instead of proceeding to his house in Norzagaray, Ferdinand decided to drop by his mother’s house
in San Roque, Angat to pick up some items. He parked his jeep in front of the house of his mother
and alighted therefrom. However, hewas bumped by a moving vehicle, thrown four (4) meters away
and lostconsciousness. Urbanita shouted, "Mommy, Mommy, nasagasaan si Ferdie." She identified
the fast moving vehicle that bumped Ferdinand as the same red Toyota pick-up driven by Reynaldo.
 143

On the other hand, Reynaldo and his wife, Rebecca, tried to show that the jeep of Ferdinand stopped
on the road in front of the house of the latter’s mother about five (5) to six (6) meters away from their
pick-up. Reynaldo stopped the pick-up as he saw an oncoming vehicle, which he allowed to pass.
Thereafter, Reynaldo made a signal and overtook the jeep of Ferdinand. However, Ferdinand
suddenly alighted from his jeep, lost his balance and was sideswipedby the overtaking pick-up.
Reynaldo did not stop his pick-up and he proceeded on his way for fear that the bystanders might
harm him and his companions. After bringing his companions to their house in Marungko, Angat,
Bulacan, Reynaldo proceeded to Camp Alejo S. Santos in Malolos, Bulacan to surrender and report
the incident.

Ferdinand was brought to the Sto. Niño Hospital in Bustos, Bulacan, where he stayed for two and a
half days and incurred medical expenses amounting to ₱17,800.00 OnSeptember 15, 1999,
Ferdinand was transferred to St. Luke’s Medical Center in Quezon City, where he stayed until
September 25, 1999 and incurred medical expenses amounting to ₱66,243.25. He likewise spent
₱909.50 for medicines, ₱2,900.00 for scanning, ₱8,000.00 for doctor’s fee and ₱12,550.00 for the
services of his caregivers and masseur from September 12 to October 31, 1999. Ferdinand suffered
multiple facial injuries, a fracture of the inferior part of the right orbital wall and subdural hemorrhage
secondary to severe head trauma, as evidenced by the certification issued by Dr. Hernando L. Cruz,
Jr. of St. Luke’s Medical Center. Urbanita, received the amount of ₱50,000.00 from Reynaldo
Mariano by way of financial assistance, as evidenced by a receipt dated September 15, 1999.2

Under its decision rendered on May 26, 2003 after trial, however, the RTC convicted the petitioner of
frustrated homicide,3 to wit:

WHEREFORE, the foregoing considered, this Court hereby finds the accused Reynaldo Mariano
GUILTYfor the lesser offense of Frustrated Homicide under Article 249 of the Revised Penal Code in
relation to Article 50 thereof and is hereby sentenced to suffer the indeterminate penalty of three (3)
years and four (4) months of Prision Correccional as minimum to six (6) years and one (1) day of
Prision Mayor as maximum and is hereby directed to pay the complainant, Ferdinand de Leon, the
amount of ₱196,043.25 less ₱50,000.00 (already given) as actual damages, ₱100,000.00 as moral
damages, and the costs of the suit.

SO ORDERED.4

On appeal, the CA promulgated itsassailed decision on June 29, 2006,5 modifying the felony
committed by the petitioner from frustrated homicide to reckless imprudence resulting in serious
physical injuries, ruling thusly:

WHEREFORE, the Decision appealed from is MODIFIEDand accused-appellant Reynaldo Mariano is

found guilty of the crime of reckless imprudence resulting in serious physical injuries and is sentenced
to suffer the indeterminate penalty oftwo (2) months and one (1) day of arresto mayor, as minimum,
to one (1) year, seven (7) months and eleven (11) days of prision correccional, as maximum, and to
indemnify Ferdinand de Leon in the amount of ₱58,402.75 as actual damages and ₱10,000.00 as
moral damages.

SO ORDERED.6

In this appeal, the petitioner arguesthat his guilt for any crime was not proved beyond reasonable
doubt, and claims that Ferdinand’s injuries were the result of a mere accident. He insists that he
lacked criminal intent; that he was not negligent in driving his pick-up truck; and that the CA should
have appreciated voluntary surrender asa mitigating circumstance in his favor.
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Ruling

We affirm the conviction of the petitioner for reckless imprudence resulting in serious physical injuries.

The following findings by the CA compel us to affirm, to wit:

Reynaldo tried to show that he stopped his pick-up five (5) to six (6) meters behind the jeep of
Ferdinand, as he allowed an oncoming vehicle to pass. Thereafter, he overtook the jeep of
Ferdinand. However, the fact that Ferdinand’s body was thrown four (4) meters away from his jeep
showed that Reynaldo was driving his pick-up at a fast speed when he overtook the jeep of
Ferdinand. It is worthy to note that Reynaldo admitted that he has known Ferdinand and the latter’s
family since 1980 because they have a store where he used to buy things. As aptly observed by the
OSG, Reynaldo should have foreseen the possibilitythat Ferdinand would alight from his jeep and go
inside the house of his mother where the store is also located.

xxxx

As aptly observed by the court a quo, only a vehicle that is moving beyond the normal rate of speed
and within the control of the driver’s hands could have caused Ferdinand’s injuries. The very fact of
speeding is indicative of imprudent behavior, as a motorist must exercise ordinary care and drive at a
reasonable rate of speed commensurate with the conditions encountered, which will enable him or
her to keep the vehicle under control and avoid injury to others using the highway. As held in People
v. Garcia:

"A man must use common sense, and exercise due reflection in all his acts; it is his duty to be
cautious, careful, and prudent, if not frominstinct, then through fear of incurring punishment. He is
responsible for such results as anyone might foresee and for acts which no one would have
performed except through culpable abandon. Otherwise his own person, rights and property, all those
of his fellow-beings, would ever be exposed to all manner of danger and injury."

Thus, had Reynaldo not driven his pick-up at a fast speed in overtaking the jeep of Ferdinand, he
could have easily stopped his pick-up or swerved farther to the left side of the road, as there was no
oncoming vehicle, when he saw that Ferdinand alighted from his jeep and lost his balance, in order to
avoid hitting the latter or, at least, minimizing his injuries.7

The findings by the CA are controlling on the Court. Indeed, the findings of both lower courts on the
circumstances that had led to the injuries of Ferdinand fully converged except for the RTC’s
conclusion that malicious intent had attended the commission of the offense. Such findings cannot be
disturbed by the Court in this appellate review, for it is a well-settled rule that the findings of the trial
court, especially when affirmed by the CA, are binding and conclusive upon the Court.8

"Reckless imprudence consists involuntary, but without malice, doing or failing to do an act from
which material damage results by reason of inexcusable lack of precaution on the part of the person
performing of failing to perform such act, taking intoconsideration his employment or occupation,
degree of intelligence, physical condition and other circumstances regarding persons, time and
place."9 To constitute the offense of reckless driving, the act must be something more than a mere
negligence in the operation of the motor vehicle, but a willful and wanton disregard of the
consequences is required.10 The Prosecution must further show the direct causal connection
between the negligence and the injuries or damages complained of. In Manzanares v. People,11 the
petitioner was found guilty of reckless imprudence resulting in multiple homicide and serious physical
injuries because of the finding that hehad driven the Isuzu truck very fast before it smashed into a
jeepney. In Pangonorom v. People,12 a public utility driver driving his vehicle very fast was held
 145

criminally negligent because he had not slowed down to avoid hitting a swerving car. In the absence
of any cogent reasons, therefore, the Court bows to the CA’s observations that the petitioner had
driven his pick-up truck at a fast speed in order to overtake the jeep of Ferdinand, and in so
attempting to overtake unavoidably hit Ferdinand, causing the latter’s injuries.

Contrary to the petitioner’s insistence, the mitigating circumstance of voluntary surrender cannot be
appreciated in his favor. Paragraph 5 of Article 365, Revised Penal Code, expressly states that in the
imposition of the penalties, the courts shall exercise their sound discretion, without regard to the rules
prescribed in Article 64 of the Revised Penal Code. "The rationale of the law," according to People v.
Medroso, Jr.:13

x x x can be found in the fact thatin quasi-offenses penalized under Article 365, the carelessness,
imprudence or negligence which characterizes the wrongful act may vary from one situation to
another, in nature, extent, and resulting consequences, and in order that there may be a fair and just
application of the penalty, the courts must have ample discretion in its imposition, without being
bound by what We may call the mathematical formula provided for inArticle 64 of the Revised Penal
Code. On the basis of this particular provision, the trial court was not bound to apply paragraph 5 of
Article 64 in the instant case even if appellant had two mitigating circumstances in his favor with no
aggravating circumstance to offset them.

Even so, the CA erred in imposing on the petitioner the penalty for reckless imprudence resulting in
seriousphysical injuries.1âwphi1 The error should be avoided because no person should be
condemned tosuffer a penalty that the law does not prescribe or provide for the offense charged or
proved. Verily, anyone judicially declared guiltyof any crime must be duly punished in accordance
with the law defining the crime and prescribing the punishment. Injustice would always result to the
offender should the penalty exceed that allowed by the law. The imposition of the correct penalty on
the offender is the essence ofdue process of law.

The penalty for the offender guilty ofreckless imprudence is based on the gravity of the resulting
injuries had his act been intentional. Thus, Article 365 of the Revised Penal Codestipulates that had
the act been intentional, and would constitute a grave felony, the offender shall suffer arresto mayor
in its maximum period to prision correccionalin its medium period; if it would have constituted a less
grave felony, arresto mayorin its minimum and medium periods shall be imposed; and if it would have
constituted a light felony, arresto menorin its maximum period shall be imposed. Pursuant to Article 9
of the Revised Penal Code, a grave felony is that to which the law attaches the capital punishment or
a penalty that in any of its periods is afflictivein accordance with Article 25 of theRevised Penal Code;
a less grave felony is that which the law punishes with a penalty that is correctionalin its maximum
period in accordance with Article 25 of the Revised Penal Code; and a light felony is an infraction of
law for the commission of which a penalty of either arresto menoror a fine not exceeding ₱200.00, or
both is provided.

In turn, Article 25 of the Revised Penal Codeenumerates the principal afflictive penaltiesto be
reclusion perpetua, reclusion temporal, andprision mayor; the principal correctional penaltiesto
beprision correccional, arresto mayor, suspension and destierro; and the light penalties to be arresto
menorand fine not exceeding ₱200.00. Under this provision, death stands alone as the capital
punishment.

The Revised Penal Codeclassifies the felony of serious physical injuries based on the gravity ofthe
physical injuries, to wit:

Article 263. Serious physical injuries. — Any person who shall wound, beat, or assault another, shall
be guilty of the crime of serious physical injuries and shall suffer:
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1. The penalty of prision mayor, if in consequence of the physical injuries inflicted, the injured
person shall become insane, imbecile, impotent, or blind;

2. The penalty of prision correccionalin its medium and maximum periods, if in consequence
ofthe physical injuries inflicted, the person injured shall have lost the use of speech or the
power to hear or to smell, or shall have lost an eye, a hand, a foot, an arm, or a leg or shall
have lost the use of any such member, or shall have become incapacitated for the work in
which he was therefor habitually engaged;

3. The penalty of prision correccionalin its minimum and medium periods, if in consequence of
the physical injuries inflicted, the person injured shall have become deformed, orshall have lost
any other part of his body, or shall have lost the use thereof, or shall have been ill or
incapacitated for the performance of the work in which he as habitually engaged for a period of
more than ninety days;

4. The penalty of arresto mayorin its maximum period to prision correccionalin its minimum
period, if the physical injuries inflicted shall have caused the illness or incapacity for labor of
the injured person for more than thirty days.

If the offense shall have been committed against any of the persons enumerated in Article 246, or
with attendance of any of the circumstances mentioned in Article 248, the case covered by
subdivision number 1 of this Article shall be punished by reclusion temporalin its medium and
maximum periods; the case covered by subdivision number 2 by prision correccionalin its maximum
period to prision mayorin its minimum period; the case covered by subdivision number 3 by prision
correccional in its medium and maximum periods; and the case covered by subdivision number 4 by
prision correccionalin its minimum and medium periods.

The provisions of the preceding paragraph shall not be applicable to a parent who shall inflict physical
injuries upon his child by excessive chastisement.

In its decision,14 the CA found that Ferdinand had sustained multiple facial injuries, a fracture of the
inferior part of the right orbital wall, and subdural hemorrhage secondary to severehead trauma; that
he had become stuporous and disoriented as to time, place and person. It was also on record that he
had testified at the trial thathe was unable to attend to his general merchandise store for three months
due to temporary amnesia; and that he had required the attendance of caregivers and a masseur until
October 31, 1999.

With Ferdinand not becoming insane, imbecile, impotent, or blind, his physical injuries did not fall
under Article 263, 1, supra. Consequently, the CA incorrectly considered the petitioner’s act as a
grave felony had it been intentional, and should not have imposed the penalty at arresto mayorin its
maximum period to prision correccionalin its medium period. Instead, the petitioner’s act that caused
the serious physical injuries, had it been intentional, would be a less grave felonyunder Article 25 of
the Revised Penal Code, because Ferdinand’s physical injuries were those under Article 263, 3,
supra, for having incapacitated him from the performance of the work in which he was habitually
engaged in for more than 90 days.

Conformably with Article 365 of the Revised Penal Code, the proper penalty is arresto mayorin its
minimum and medium periods, which ranges from one to four months. As earlier mentioned, the rules
in Article 64 of the Revised Penal Codeare not applicable in reckless imprudence, and considering
further that the maximum term of imprisonment would not exceed one year, rendering the
Indeterminate Sentence Lawinapplicable,15 the Court holds that the straight penalty of two months of
arresto mayorwas the correct penalty for the petitioner.
 147

The Court agrees with the CA’s modification of the award of actual and moral damages amounting to
₱58,402.75 and ₱10,000.00, respectively.

Actual damages, to be recoverable, must not only be capable of proof, but must actually be proved
with a reasonable degree of certainty. This is because the courts cannot rely on speculation,
conjecture or guesswork in determining the fact and amount of damages. To justify an award of
actual damages, there must be competent proof of the actual loss suffered, which should be based
on the amounts actually expended by the victim,16 or other competent proof. Here, the receipts
presented by the Prosecution proved the expenses actually incurred amounting to₱108,402.75, but
such aggregate was reduced by the victim’s earlier receipt of ₱50,000.00 from the petitioner in the
form of financial assistance. Hence, the victim should recover only the unpaid portion of ₱58,402.75.

Moral damages are given to ease the victim's grief and suffering. Moral damages should reasonably
approximate the extent of the hurt caused and the gravity of the wrong done.17 Accordingly, the CA
properly reduced to ₱10,000.00 the moral damages awarded to Ferdinand. In addition, we impose an
interest of 6% per annum on the actual and moral damages reckoned from the finality of this decision
until the full payment of the obligation. This is because the damages thus fixed thereby become a
forbearance. The rate of 6% per annum is pursuant to Circular No. 799, series of 2013, issued by the
Office of the Governor of the Bangko Sentral ng Pilipinas on June 21, 2013, and the pronouncement
in Nacar v. Gallery Frames.18 WHEREFORE, the Court AFFIRMS the decision promulgated on June
29, 2006, subject to the modifications that: (a) the penalty to be imposed on the petitioner shall be a
straight penalty of two months of arresto mayor; and (b) the awards for actual and moral damages
shall earn 6% interest rate per annum commencing from the finality of this decision until fully paid.

The petitioner shall pay the costs of suit.

SO ORDERED.